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United States v. Provoo

decided.: August 27, 1954.


Author: Swan

Before SWAN, MEDINA and HARLAN, Circuit Judges.

SWAN, Circuit Judge.

After a long jury trial the defendant Article 3, Section 3, Clause 1 of the Constitution Article 3, Section 3, Clause 1 of the Constitution and made punishable by statute, 18 U.S.C.A. § 2381.*fn1 He was a staff sergeant in the United States Army who was captured by the Japanese upon the surrender of Corregidor, Philipine Islands. The indictment charged twelve separate overt acts of treason alleged to have been committed by him between May 6, 1942 and August 14, 1945 while he was a prisoner of war. Only seven of the overt acts charged were submitted to the jury, the others having been dismissed by the trial judge. The jury found him guilty of four of the seven submitted, and as to three reached no agreement. Of the four acts of which the defendant was found guilty one was an offer of services to the Japanese on Corregidor; another was reporting that Captain Thomson, who was also a prisoner of war on Corregidor, was anti-Japanese and uncooperative, with the result that Thomson was put to death by the Japanese; and the other two were radio broadcasts from Tokyo during the spring of 1944. The main defense was duress and lack of treasonable intent. On March 12, 1953 Provoo was sentenced to life imprisonment and the statutory mandatory fine of $10,000 was imposed. He promptly appealed. For convenience this will be referred to as the main appeal.

In April 1954, while the main appeal was pending, the defendant applied to the District Court pursuant to 28 U.S.C.A.§ 2255 for an order vacating the judgment for treason, or, in the alternative, granting a new trial, on the ground that newly discovered facts showed that he had been tried in the wrong district in violation of the venue provisions of 18 U.S.C.A. § 3238. The motion was heard by Judge Noonan, on supporting and opposing affidavits, and was denied in an opinion not yet published in the Federal Supplement. D.C., 124 F.Supp. 185. From this order an appeal was duly taken. The two appeals have been argued together.

At the outset the court wishes to express to counsel for both parties appreciation for their able briefs and arguments. To the court-appointed attorneys for the defendant a great debt of gratitude is owing for the public service they have rendered without compensation. Both in the trial court and in this court attorneys of experience and professional distinction have devoted an enormous amount of time, energy and skill to provide the defendant with competent representation. The general public is perhaps unaware of how frequently members of the legal profession render gratuitously aid of this sort to the courts. The present case is a notable illustration of such public service.

On the main appeal the appellant has alleged numerous errors; they relate to the charge to the jury, the sufficiency of the evidence to support the verdict, the admission of certain exhibits, and alleged unfairness in the conduct of the trial, particularly in respect to cross-examination of the defendant which, it is urged, was intended to, and did, bring home to the jury collateral matters so prejudicial and inflammatory as to require a reversal for this reason alone, regardless of other errors.We shall at once address consideration to this contention.

The defendant took the stand in his own defense. His direct examination dealt with four periods of his life: (1) his birth in San Francisco in 1917 and the years prior to his capture by the Japanese in 1942; (2) his experiences and conduct while he was a prisoner of war; (3) his experiences in Japan after liberation by the American forces; (4) his return to the United States in April 1946 and his experiences in the Army from the date of his return up to September 2, 1949. The challenged cross-examination is concerned only with the fourth period. Provoo's direct examination on this period brought out that he had received an honorable discharge at Fort Dix, New Jersey on August 17, 1946; that he reenlisted at Camp Beale, California, on September 5, 1946, and thereafter was ordered to various Army posts and hospitals. At Fort Bragg, North Carolina, in 1948 and Fort Meade, Maryland, in 1949, he was imprisoned in the stockade, and on two other occasions he was under physical restraint during hospitalization at Walter Reed Hospital, Washington, D.C. While he was in the Walter Reed Hospital and in the stockade at Fort Meade he was interrogated by representatives of the Department of Justice concerning his prisoner of war days and gave signed statements. On September 2, 1949 he was brought under guard from Fort Meade to Fort Jay, Governors Island, N.Y., was ordered to accept an "undesirable discharge" from the Army, and was thereupon turned over to F.B.I. agents who forthwith arrested him on the charges of treason for which he was later indicted and tried.

The direct examination of Provoo on the subject of his experiences after reenlistment occupies less than ten pages of the record.*fn2 It contains no intimation as to the reason for his imprisonment at Fort Bragg and Fort Meade or for his confinement at the Walter Reed Hospital. Almost at once the cross-examiner put the question, "What were the circumstances, please, that caused your arrest and confinement," at Fort Bragg. An objection to this line of inquiry was overruled, and the cross-examination as to the reasons for his imprisonments and hospitalizations was continued over repeated objections for more than 200 pages of the record. It was designed to draw from the witness an admission that he had been charged with, or suspected of, being a homosexualist, and it culminated in the direct question: "Now, Mr. Provoo, isn't it a fact that in November 1946 you were hospitalized at Camp Lee, Virginia, because of homosexual aberrations?" A motion for a mistrial was promptly made and overruled, the court telling the jury that "this question and any similar questions and the answer to these questions is being permitted solely in connection with the question of the credibility and the weight to be given to the witness' testimony." The defendant answered that he was hospitalized at Camp Lee "because I was sick, and I haven't any idea what diagnosis was made at that time or what the doctor may or may not have put in his report at that time. But I am not a homosexual." The prosecutor then showed the defendant certain pages of Government's Exhibit 2 for identification (his army record) and asked if that refreshed his recollection as to the reason he was at the hospital at Camp Lee. The answer was that it did not refresh his recollection. He was then shown another page of Exhibit 2 for identification and asked if that refreshed his recollection as to the reason for his confinement in Fort Sill, Oklahoma in 1947. The defendant answered it did not but added "It does state I was a suspect." The next question was: "Now Mr. Provoo, isn't it a fact that you were sent from Fort Sill, Oklahoma to Brook General Hospital at Fort Sam Houston, Texas, because you were a homosexual suspect." The answer was "No, Sir. That is a lie." Similar questions were then asked as to the defendant's confinement at Fort Bragg, at the Walter Reed Hospital and at Fort Meade.

It is obvious that the cross-examination informed the jury that on several occasions after reenlistment the defendant had been charged with being, or suspected by military authorities or hospital doctors of being, a homosexualist. Neither by court martial nor by a civil court was he ever brought to trial and convicted on any charge of sodomy. Obviously such a charge was utterly irrelevant to the issue whether he had committed treason while a prisoner of war. But these highly inflammatory and prejudicial collateral and irrelevant charges were brought to the jury's attention. Nor was it done by accident or unintentionally. In colloquy between court and counsel in argument as to their admissibility, the prosecutor stated: "I also said I was going to bring it out through the defendant * * * and I made the declaration that if the defendant took the stand, he was laying himself open to that kind of cross-examination." That the facts so developed were so prejudicial as to constitute reversible error, if they were improperly admitted, is too plain for debate. They had no relevancy to charges on which he was being tried and were certain to degrade him in the eyes of the jury. See Gideon v. United States, 8 Cir., 52 F.2d 427, 430. We may add, in passing, that the use of Government's Exhibit 2 to impeach his testimony under guise of "refreshing his recollection" was at best questionable. See Wigmore, Evidence (3rd ed.) § 764 (Supp.) note 1.

Two theories are advanced by Government counsel in attempted justification for bringing such prejudicial matter to the knowledge of the jury. It is urged, first, that the direct examination "opened the door" to inquiry on cross-examination as to the true nature of defendant's incarceration and hospitalization; and, secondly, that in any event a defendant who takes the stand in a criminal trial may be questioned as to any criminal or immoral act of his life since such information is relevant to his credibility as a witness.

This court had occasion to discuss the doctrine of "opening the door" in United States v. Corrigan, 2 Cir., 168 F.2d 641, 645. As there explained, with the citation of authorities, "The doctrine * * * is an application of the principle of 'completeness'; that is, if one party to litigation puts in evidence part of a document, or a correspondence or a conversation, which is detrimental to the opposing party, the latter may introduce the balance of the document, correspondence or conversation in order to explain or rebut the adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary." At page 3961 of the Record, in colloquy with counsel, the trial judge expressed the view that "a fair inference from that testimony [Provoo's testimony on direct examination that he had been confined in various stockades and hospitals in the United States after his reenlistment] would be that those incarcerations were a result, directly or indirectly of an investigation by either the Army or the F.B.I. of his conduct during his prisoner of war days."*fn3 We do not think such an inference was permissible. The Army lacked jurisdiction to court-martial him for conduct preceding his honorable discharge in August 1946, United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S. Ct. 530, 93 L. Ed. 621; hence it is not to be inferred that he was imprisoned by the Army for what occurred in Japan. Provoo's direct testimony was entirely neutral as to the cause of his confinements after reenlistment. Moreover, even on the assumption that the jury might infer that these confinements were related to his conduct as a prisoner of war, it is difficult to see how such an inference could be deemed adverse to the prosecution. The direct testimony contains no suggestion that the confinements were illegal or that the defendant was a victim of prolonged persecution. If sympathy could have been created by the fact of his frequent hospitalizations, we think it would have been far outweighed by the inference of guilt which the jury would be likely to attach to the fact of imprisonment. Pages 3872 to 3877 of the Record, reproduced in the appendix to this opinion, which are relied upon to support the court's decision that the door was opened so as to permit interrogation by the prosecutor to show that homosexuality was the real cause of Provoo's confinement in stockades and hospitals, contain nothing, in our opinion, to justify an application of the doctrine of "opening the door" to a cross-examination such as was here permitted.*fn3a

We pass now to the alternative contention that even if the door was not opened to inquiry as to the true reasons for defendant's incarceration and hospitalization, the prosecution could lawfully cross-examine him as to immoral or vicious acts, since such information has a bearing upon the defendant's credibility as a witness in his own behalf. It is true that a defendant who takes the stand subjects himself to cross-examination, within the limits of the appropriate rules of evidence, like any other witness, and may be cross-examined for the purpose of impeaching his credibility.*fn4 In People v. Sorge, 301 N.Y. 198 at page 200, 93 N.E.2d 637 it is stated that a defendant, like any other witness, may be interrogated upon cross-examination in regard to any vicious or criminal act of his life that has a bearing on his credibility. Whether this is a correct statement of the New York law we need not stop to consider.*fn5 Concededly local rules of evidence are not controlling in criminal trials in the United States courts. Rule 26, F.R.Cr.P., 18 U.S.C.A. In the Federal courts there has been an impressive unanimity of view on the point before us. As generally held, specific acts of misconduct not resulting in conviction of a felony or crime of moral turpitude are not the proper subject of cross-examination for impeachment purposes.*fn6 In this circuit, apparently under the influence of the broader New York rule, we have at times allowed impeaching questions as to misdemeanors, United States v. Cohen, 2 Cir., 177 F.2d 523, 525, certiorari denied 339 U.S. 914, 70 S. Ct. 568, 94 L. Ed. 1340; United States v. Minkoff, 2 Cir., 137 F.2d 402, 405; disbarment, United States v. Rubenstein, 2 Cir., 151 F.2d 915, certiorari denied 326 U.S. 766, 66 S. Ct. 168, 90 L. Ed. 462, and even criminal acts which were not established by a judgment of conviction. United States v. Schiller, 2 Cir., 187 F.2d 572; United States v. Gruber, 2 Cir., 123 F.2d 307; United States v. Buckner, 2 Cir., 108 F.2d 921, certiorari denied, 309 U.S. 669, 60 S. Ct. 613, 84 L. Ed. 1016; United States v. Frankel, 2 Cir., 65 F.2d 285. Of these last, however, one may be explained as tending to show the necessary criminal intent, United States v. Schiller, see concurring opinion of Frank, J., 187 F.2d at page 576, and two as proceeding on the theory that the door had been opened, United States v. Gruber, United States v. Buckner. Moreover, only two of the cases, United States v. Schiller and United States v. Cohen, were decided after the promulgation of the Federal Rules of Criminal Procedure had lessened the desirability of following New York decisions. Of these, Schiller, as noted, is explicable on other grounds, and Cohen (where this point received cursory treatment) involves no clear conflict with the majority rule. On the strength of this meager authority we cannot say that we are committed to a position so radically at variance with that of the other circuits as to allow this examination.

Even if the course of our precedents was clearer, we would have difficulty espousing the Government's position. Under F.R.Cr.P. 26 we are governed "by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." In proposing the rule, the Notes of the Advisory Committee remark that: "Since all federal crimes are statutory and all criminal prosecutions in the federal courts are based on acts of Congress, uniform rules of evidence appear desirable if not essential in criminal cases, as otherwise the same facts under differing rules of evidence may lead to a conviction in one district and to an acquittal in another." We have set forth above the interpretation of the common law adopted by the overwhelming majority of federal courts. As for experience, Wigmore, Evidence (3d ed.) §§ 980(a)-983 presents numerous examples of the abuses resulting from unrestrained inquiry into a witness's history, suggests that the inquiry be confined to the trait of veracity, § 982(1), and offers the suggestion that a defendant-witness is entitled to even greater protection, in order to prevent unfair prejudice. §§ 891(3), 983(4), 2277(4). As for reason, we do not conceive that inquiry into every accusation of criminal or vicious conduct will further the search for truth. Where, as here, the defendant's general character has not been put in issue, it is difficult to justify any examination other than into the trait of veracity.No authority has been cited which suggests that homosexuality indicates a propensity to disregard the obligation of an oath. The sole purpose and effect of this examination was to humiliate and degrade the defendant, and increase the probability that he would be convicted, not for the crime charged, but for his general unsavory character. Permitting it was error.

The error was plainly prejudicial. Indeed we can conceive of no accusation which could have been more degrading in the eyes of the jury nor more irrelevant to the issue of treason on which he was being tried. On the main appeal the judgment must be reversed and the cause remanded for a new trial. This disposition makes unnecessary consideration of the other alleged errors in the course of the trial.

We are also convinced that error was committed in denying the defendant's motion to vacate the judgment of conviction on the ground that newly discovered evidence showed that he had been tried in the wrong district. In a criminal trial in the federal courts venue must be proved, in the absence of waiver, like any other material allegation of the indictment. United States v. Johnson, 323 U.S. 273, 65 S. Ct. 249, 89 L. Ed. 236; United States v. Brothman, 2 Cir., 191 F.2d 70; United States v. Jones, 7 Cir., 174 F.2d 746. The venue for trial of acts of treason committed on Corregidor or in Japan is governed by 18 U.S.C.A. § 3238:

"The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought."

We are concerned only with the term "found," since Provoo was not under restraint when he returned from Japan in 1946, and, therefore, was not "brought" into the district where the ship landed him. Chandler v. United States, 1 Cir., 171 F.2d 921, 933; Kerr v. Shine, 9 Cir., 136 F. 61; United States v. Townsend, D.C., S.D.N.Y., 219 F. 761. At the trial Judge Noonan correctly charged the jury that the words "district where the offender is found" as used in the statute mean the district "in which the defendant is first apprehended or arrested or taken into custody, under charges later found in the indictment"; and that the southern district of New York covers Fort Jay, Governors Island. The evidence before the jury showed that Provoo had been brought by the Army from Fort Meade to Fort Jay, where F.B.I. agents, immediately after his separation from military service, took him into custody under a commissioner's warrant of arrest charging him with treason. Beyond question the jury's finding as to venue was sustainable on the record as it then was. But subsequent to the conviction, Provoo's counsel, with the cooperation of the United States Attorney and the Army, obtained confidential records not previously available, which led counsel to believe that the southern district of New York was not the proper venue for the trial. On the basis of such newly discovered evidence a motion was made under 28 U.S.C.A. § 2255 to vacate the conviction.

The newly discovered evidence may be briefly summarized as follows: On June 2, 1949 Provoo was a military prisoner at Fort Meade awaiting disposition of charges of sodomy lodged against him under the Articles of War. At the request of the Department of Justice which was investigating the possibility of his having committed acts of treason while a prisoner of war, the Army delayed for four months court-martial proceedings on the sodomy charge, finally dropped this charge, and brought Provoo to New York to effectuate here an undesirable military discharge and to turn him over to F.B.I. agents in order that he might be arrested, indicted and tried for treason in the southern district of New York. Had the newly discovered evidence been before the jury, we do not believe that the jury would, or could legally, have found that Provoo was "first apprehended or arrested or taken into custody" in the southern district of New York under the charges of treason on which he was later indicted.

The Government argues that the purpose of the venue statute is not to fix the place of arrest but simply to have the place of trial conform to the place of arrest. We agree. The argument then proceeds that Provoo was not arrested under treason charges until he was brought to Fort Jay. This is true so far as arrest by civil authorities is concerned but is it true with respect to military authorities? We think not. After the Army had agreed with the Department of Justice that the sodomy charge should be dropped, the Army continued to hold him in restraint solely in order to bring him to New York to be tried for treason in the District Court here. There could be no military purpose for continuing his imprisonment. The Army had determined to drop the sodomy charge; and he could not be tried by court-martial for treason or any other offense committed during his previous enlistment. United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S. Ct. 530, 93 L. Ed. 621. It is urged that he was brought to Fort Jay for the military purpose of effectuating his discharge from the Army. But his discharge could, and in accordance with usual procedure would, have been effectuated at Fort Meade or at some point closer to his home than Fort Jay.*fn7 We cannot blind our eyes to the fact that the real purpose in bringing him to New York was to meet the wish of the Department of Justice to have him tried for treason under the indictment subsequently filed here. Consequently we hold that the continuance of Provoo's restraint in Fort Meade, after the Army had dropped the sodomy charge, for the purpose of bringing him to New York for trial, was an apprehension for treason and that he was "found" in Maryland within the meaning of the venue statute. To hold otherwise would mean that the Army, acting in cooperation with the Department of Justice, can select any federal district in the United States as the place for trial of a soldier charged with treason or any other offense committed abroad.

Such a holding would be directly opposed to the principle enunciated by Chief Justice Marshall in Ex parte Bollman, 4 Cranch. 75, 136, 2 L. Ed. 554.

"* * * It would, too, be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized, in any place which the general might select, and to which he might direct them to be carried."

The Government attempts to distinguish the Bollman case because there the Army's arrest of the defendants was for treason while here Provoo's initial incarceration by the Army was for sodomy and he was never formally charged by the Army with treason. But for the reasons already stated we think the attempted distinction is unsubstantial. Otherwise the Government would be able to handpick its forum. We realize that the Government can do just that under the "first brought" provision, - barring an accidental landing such as occurred in Chandler v. United States, 1 Cir., 171 F.2d 921. But the fact that when an offender has been arrested on the high seas or abroad, the Government may choose the district into which to bring him, does not seem an adequate reason for permitting the Government to take him into custody in a district where a Federal court exists with jurisdiction to try the alleged offense for which he is held in custody and then transport him to another district for trial there. The courts must take the statute as they find it and should not whittle away the "found" provision by a construction based on formalism rather than substance. As the Supreme Court stated in United States v. Johnson, 323 U.S. 273, at page 275, 65 S. Ct. 249, at page 251: "Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed."

The judgment and the order are both reversed and the cause is remanded for further proceedings consistent with this opinion.

Appendix to Opinion

Pages 3871 to 3880 of the Record.

"Q. Where were you first stationed after you reenlisted? A. I was sent to Camp Lee, now Fort Lee, Virginia.

"Q. And from there, sir, what other camps were you then stationed at? A. Fort Sill, Oklahoma.

"Q. While you were at Fort Sill, did anything occur with respect to consideration of yourself for Officers Candidate School? A. I applied for Officers Candidate School, at Fort Sill.

"Q. And were you accepted?A. I had passed the - I qualified for OCS, but there was a circular came out about that time, and I was over age, I was ...

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