United States v. Polowichak

WILKINSON, Circuit Judge,

concurring in part and dissenting in part:

I dissent from the reversal of the Travel Act convictions. The majority finds the trial court’s instructions to be “totally inadequate” only by failing to address the adequacy of the total jury charge. Isolating a six sentence excerpt from thirty-two pages of instructions as “the district court’s entire mention of the Travel Act” ignores the fact that “the court’s instructions must be viewed as a whole and not in isolated sentences.” United States v. Lopez, 611 F.2d 44, 47 (4th Cir.1979); see also Cupp v. Naughten, 414 U.S. 141, 146-47 , 94 S.Ct. 396, 400-01 , 38 L.Ed.2d 368 (1973). If so examined, the challenged instructions may be seen to have clearly told the jury to determine whether the defendants’ travel in interstate commerce was with the specific intent to promote a business enterprise involving marijuana. 1

The district court’s charge consisted of three different parts. First, the court described general principles of legal evidence and reasoning. The court then outlined the eleven counts in the indictment, pointing in each count to its distinctive elements. In this section, for example, the court compared conspiracy offenses with substantive offenses and compared travel in interstate *419 commerce with travel in foreign commerce. Consistent with that purpose, the majority’s quoted Travel Act passages refer to the defendants’ alleged movements from South Carolina to Pennsylvania and New York.

Finally, in the third and longest part of the instructions, the district court discussed in detail the important legal concepts that would inform the jury deliberations on all or several of the indictment counts. The court began by reviewing the idea of proof beyond a reasonable doubt. On completing that instruction, the court next turned to the pervasive issue of the defendants’ states of mind. There the court said — only three transcript pages after the excerpt on which the majority relies — that “before the Government can prove anyone guilty beyond a reasonable doubt, or about any count, the Government’s got to prove that that defendant, as to that particular count, and as to any count, acted knowingly and willfully" (emphasis added). Five sentences later, the court repeated this point: “the Government’s got to prove, before any defendant can be convicted of any count, that the defendant knowingly and willfully violated the statute with which he is charged here violating” (emphasis added).

The court then properly elaborated these references to knowing and willful conduct, relating the terms to intention as opposed to “mistake or accident or innocence.” The court concluded its discussion by noting that an act could be criminally willful only if performed “with specific intent to do something the law forbids.” Read as a whole, these instructions directed the jury to vote for convictions on the Travel Act counts only upon finding that the defendants knew that they were transporting marijuana and thereby had “the intent to carry on or facilitate the carrying on of an unlawful activity.” United States v. Salsbury, 430 F.2d 1045, 1051 (4th Cir.1970). Indeed, a more complete charge might well have been less favorable to the defendants by adding that if each defendant “reasonably could have been expected to know of these [drugs], he could not with impunity avert his gaze to avoid actual knowledge.” Id. at 1050 .

The majority’s narrow focus is particularly disturbing because the procedural posture of this case is hardly favorable to defendants. At trial, these appellants accepted the jury charge by waiving objection under Fed.R.Crim.P. 30. The majority points to requested instructions but it is clear that the “mere submission of requested instructions ... does not satisfy the requirement of Rule 30.” United States v. Byrd, 542 F.2d 1026, 1028 (8th Cir.1976). And while the majority notes that defendants lodged a “general objection,” Rule 30 requires counsel to state “distinctly the matter to which he objects and the grounds of his objection.” In a complex trial with lengthy instructions, where the universe of potential exceptions is large, the importance of specificity is self-evident. Yet the majority insists upon correcting a trial judge who was never given adequate notice and opportunity to correct his own instruction.

On appeal, therefore, we are concerned only with “plain errors" as defined by Fed. R.Crim.P. 52(b). Review for plain error prompted the original statement that an instruction “[does] not stand alone, but [is] to be taken with what preceded it and also with what followed.” Boyd v. United States, 271 U.S. 104, 107-08 , 46 S.Ct 442, 443 , 70 L.Ed. 857 (1926). This emphasis on context has in the subsequent examination of instructions for plain error involved not only a duty to view each passage with reference to the whole charge but also a duty “to view the charge itself as part of the whole trial.” United States v. Park, 421 U.S. 658, 674 , 95 S.Ct. 1903, 1913 , 44 L.Ed.2d 489 (1975); see also Lopez v. United States, 373 U.S. 427, 435-36 , 83 S.Ct. 1381, 1385-86 , 10 L.Ed.2d 462 (1963). The jury, after all, considered the whole trial, and our mandate under Rule 52(b) is to decide if “it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.” United States v. McCaskill, 676

*420 F.2d 995, 1002 (4th Cir.1982) (citations omitted). 2

A survey of the entire record shows that this jury, even before the instructions, could not have failed to recognize that the knowledge and intentions of the defendants were crucial elements of the case. The court began the trial by describing the allegations of the indictment, noting that the Travel Act counts charged conduct “with intent to carry on an unlawful business enterprise; that is, the handling of marijuana.” Following these descriptions, the court detailed the point that “all of these statutory violations must be done knowingly” and stressed that “every element of the offense charged against the defendant, the Government must prove beyond a reasonable doubt.” In its attempt to discharge that burden of proof, the prosecution raised inferences about defendants’ states of mind by offering a variety of evidence, including testimony about the unmistakable odor of marijuana from the trucks. In response, the defense called only one new witness, the owner of several trucking companies. The purpose of that witness was to show that drivers often do not know the cargo that their trucks carry. The effect of that witness was to show that the drivers’ knowledge was crucial.

We must remember that the jury heard the trial court’s charge after listening to these preliminary instructions from the bench and after receiving this evidence from the witness stand. We must remember, • also, that the jury heard the trial court’s charge while holding the published indictment: the Travel Act counts of the indictment alleged that the defendants had travelled in interstate commerce “with intent to promote” the previously described “business enterprise involving marijuana,” and the court reminded the jury that “the Government has to prove, beyond a reasonable doubt, every fact that they charge, everything alleged.” And we must remember, finally, that the jury considered the trial court’s charge in conjunction with the attorneys’ closing arguments, during which the continuing attention to knowledge and intent became even more direct, and the importance of the issue became even more obvious.

From the first moments of his summation, the prosecutor concentrated on the question of “whether or not the Rawles, Mr. Prickett and Mr. Holshue were merely present riding down the highway with ho knowledge of what was going on.” Holshue’s lawyer centered his discussion on the contention that “the Government offered nothing, nothing in the way of evidence to show any knowledge, any intent, any willfulness on the part of Robert Holshue to violate any of the laws, or any of the statutes that are charged in this indictment.” Prickett’s attorney echoed that “what this boils down to, as far as Walter is concerned, what this boils down to as far as Walter’s future is concerned, is a question of knowledge.” And counsel for *421 James and William Rawle encapsulated the entire controversy in his opening remark that “the whole key of this ease is whether Jim and Bill Rawle knew that these trucks contained marijuana.”

It was in this context that the jury interpreted the court’s instruction that “the Government’s got to prove, before any defendant can be convicted of any count, that the defendant knowingly and willfully violated the statute.” Accordingly, it is in the same context that this court must assess the verdict of the jury. Every clue suggests that the jurors did predicate their votes on proper findings of knowledge and intent. The converse possibility — that the jurors took an isolated omission as a signal to ignore the role of intent in the Travel Act charges — is, to say the least, remote.

I fear that my perspective on this criminal trial differs from that of the majority in two respects. In United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 1592 n. 14, 71 L.Ed.2d 816 (1982), the Court noted that “the Courts of Appeals long have recognized that the [plain error] power granted them by Rule 52(b) is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” By finding plain error here, the majority makes of trials a minuet of form and ignores the substance represented in the verdict.

Moreover, a trial judge is not some patriarch upon whose shoulders falls sole responsibility for every detail of the enterprise. A successful trial is rather a communicative and cooperative venture in which able counsel shoulder their burdens too. “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203 (1977). I am unable to square the majority’s censure of the court in this case with its exoneration of counsel. A proper review of this trial would exact its proper measure of accountability from both.

. The majority refers ante at 417 n. 8 to "a 105-page jury charge,” a catch-all that includes not only the district court’s instructions (thirty-two pages), but the supplementary instructions delivered after considering the objections and arguments of counsel (seven pages) and the supplementary instructions delivered in response to the questions of the deliberating jury (estimated by the majority at sixty-six pages). Whatever the length of the district court’s comments, the point remains that this court must analyze individual passages with reference to the structure of the entire charge. Here that structure underscored the state of mind necessary to support a criminal conviction. Contrary to the suggestion of the majority, that information was not scattered throughout the instructions; it was discussed coherently on the thirteeenth and fourteenth pages of the thirty-two page original charge.

. Citing Taylor v. Kentucky, 436 U.S. 478 , 98 S.Ct. 1930 , 56 L.Ed.2d 468 (1978), the majority suggests that we may not go beyond the trial court’s instructions in deciding whether the jury recognized that 18 U.S.C. § 1952 (a)(3) includes an element of specific intent. It is worth noting that the Supreme Court in Taylor did consider the arguments of counsel in deciding whether an abbreviated trial court instruction was adequate. See 436 U.S. at 486-88 , 98 S.Ct. at 1935-36 . In that case, unlike here, the closing arguments posed a significant risk of misleading the jury. Furthermore, this case differs from Taylor in two other respects. First, the defendant in Taylor raised a specific, contemporaneous objection to the trial court’s contested instruction. See 436 U.S. at 482 n. 10, 98 S.Ct. at 1933 n. 10. Second, the error in .Taylor — failure to charge the jury on the presumption of innocence — involved the question of how the jury should think about all aspects of the case and indeed a defendant's most basic guarantee. This case more closely resembles Henderson v. Kibbe, 431 U.S. 145, 153-54 , 97 S.Ct. 1730, 1736-37 , 52 L.Ed.2d 203 (1977), in which the Supreme Court relied upon the distribution of the indictment and the arguments of counsel in concluding that the jurors had been informed of all of the essential elements in the case. Henderson v. Kibbe is, to be sure, a collateral proceeding rather than a direct review, but the principles of attorney objection and the relevant sources for determining the probable influence on the verdict are the same in either situation. See United States v. Park, 421 U.S. 658 , 674-76 and n. 16, 95 S.Ct. 1903 , 1912-14 and n. 16, 44 L.Ed.2d 489 (1975).