# Archie Brown v. United States

> Court of Appeals for the Ninth Circuit · November 9, 1964 · 334 F.2d 488

URL: https://www.frixlaw.com/law-library/cases/9450172

## Case

- **Full name:** Archie BROWN, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 9, 1964
- **Citations:** 334 F.2d 488
- **Precedential status:** Published
- **Opinion:** Concurrence by Duniway
- **Judges:** Duniway, Hamley, Chambers, Barnes, Jertberg, Merrill, Koelsch, Browning, Duni-Way
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450172

## Opinion text

DUNIWAY, Circuit Judge
(concurring) :
I concur in the opinion of my brother-Merrill. However, because I do not think that his opinion sufficiently answers the-arguments advanced by my brother Ham-ley, I feel obligated to state my views as. to those arguments.
I think that the question raised by my brother Hamley is not quite the question, that this case presents. In my opinion, if a particular executive board, under-the constitution or bylaws or other governing instruments of the union, has powers that bring it within the meaning of 29 U.S.C. § 504 (“executive board or similar governing body”), then it makes, no difference that, in practice, the executive board does not exercise some of those: *498 powers. It would still have the right to exercise them. I think that Congress was aiming at membership in a board having such a right. Therefore, the court could properly look to the union constitution, which was the only governing instrument in evidence. I also think that, assuming that the copy of the constitution in evidence is in fact the constitution, and that it is a correct copy, the question as to whether the executive board is one falling within the statute is a pure question of law. It is not transmogrified into a question of fact because the defendant contends that the board does not fall within the statute. If, in a particular case, the government sought to show that a board in fact had and exercised more power than the constitution gave it, the question might be different, but it is not before us.
I cannot tell from Judge Hamley’s opinion whether he bases his statement that the question is one of fact upon a construction of the union constitution or upon the evidence offered by the union to show that, in practice, the board did not exercise the full powers that the constitution conferred upon it. If his statement refers to a construction of the constitution, then I think that he is plainly wrong. The meaning and effect of such a document has always been considered a question of law. If his statement refers to the union’s evidence as to practice, where, as here, the practice is introduced to show that the board exercises less power than it has, my answer is that, as a matter of law, such practice is immaterial; it would have been improper for the jury to base its decision on that evidence, and the trial judge should have excluded it. Its admission is not an error of which Brown can complain, noi-, a fortiori, is it an error to fail to tell the jury that it should consider that evidence in deciding whether the executive board was such a board as is referred to in the statute. To tell the jury that would have been error.
Here, as Judge Merrill points out, there was no controversy as to the authenticity or accuracy of the copy of the union’s constitution that was in evidence. These facts were “admitted” just as fully and effectively as if there had been a formal stipulation about them. So, in my view, the only question left, on this phase of the ease, was one of law.
If I am in error in the foregoing analysis, however, I think that the result would be the same. I agree with Judge Merrill that, even if we accept as true all of the factual contentions of appellant as to this issue, the question is still one of law.
The dispensing power of the jury- — its power to decide a criminal ease for the defendant, against both the law as stated by the judge and the facts as shown by the evidence, is long established. I think that it lies at the heart of the problem that is here presented. But it does not, in my opinion, require a reversal here.
My view is supported by high authority. In Horning v. District of Columbia, 1920, 254 U.S. 135 , 41 S.Ct. 53 , 65 L.Ed. 185 , defendant was charged with violation of a District of Columbia law forbidding pawnbroking at interest in excess of 6%. Defendant admitted that he was pawnbroking, but denied that he was doing so within the District. He testified that he warehoused pledges in the District, but granted loans and signed contracts only in Virginia. He maintained an automobile service to transport customers across the bridge to his office. The court charged that, on that state of facts, he was a pawnbroker in the District. Defendant claimed that the court thus effectively decided against his only defense. Mr. Justice Holmes affirmed;
“This is not a case of the judge’s expressing an opinion upon the evidence, as he would have had a right to do * * *. The facts were not in dispute, and what he did was to say so and lay down the law applicable to them. In such a ease obviously the function of the jury if they do their duty is little more than formal. The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the *499 teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found * * *. Perhaps there was a regrettable peremptoriness of tone —but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts ■ — -and that is all there was left for them after the defendant and his witnesses took the stand.” (254 U.S. pp. 138-139, 41 S.Ct. p. 54.)
This court has come to a similar conclusion in Peterson v. United States, 9 Cir., 1925, 4 F.2d 702 . Defendant, charged with illegally possessing and selling whiskey, admitted possessing the liquor under circumstances that he claimed were not illegal. The charge advised the jury that defendant’s testimony admitted illegal possession. Affirmed: “In declaring that the possession was unlawful, the court did no more than to state the law applicable to the admitted facts.” (p. 702)
Nordgren v. United States, 9 Cir., 1950, 181 F.2d 718 , 12 Alaska 671 , which is discussed by Judge Hamley, also seems to me to be squarely in point. There is no claim that, in the present case, the court did not do what trial judges invariably do, and what the trial judge did in Nordgren, namely, tell the jury that it was their sole province to determine the facts. The judge did so instruct the jury, not once, but three times. This case does differ from Nordgren in one respect, namely, that here the court was asked to tell the jury that the question of whether the executive board was such a board as the statute refers to was a question of fact for them to decide. The court’s reference to the lack of such a request, in Nordgren, is at most, only an alternative ground of decision, and, more realistically, a sort of bolstering afterthought.
See also the decision of Judge Gilbert in May v. United States, 9 Cir., 1907, 157 F. 1, 5-6 . I can find no persuasive basis on which to distinguish these cases from the one before us.
In attempting to hew a path between “law” and “fact” it is difficult if not impossible not to lapse into semantics. I suppose no one would argue that it is not the judge’s province to interpret a statute for the jury — this is a “question of law,” and one on which he is the expert. I do not think that, in doing so, he is required to limit himself to bland abstractions, although that is what most judges usually do. If a judge is to give effective guidance to the jury, he ought to be as specific in his instructions as the facts of the case allow him to be. I do not see why, in interpreting a statute, he may not state that an admitted board falls within the statute’s reference to a board. Defendant’s argument is, after all, one of legal analysis, and the judge is better able than the jury to evaluate it. And yet, when the judge personalizes his statutory interpretation to apply to defendant’s situation when the question to be decided is a necessary increment in the determination of defendant’s guilt, Judge Hamley would call it a question of fact. Impliedly he would sacrifice expertise to protect the jury’s discretion to decide irrationally.
I do not think that it aids analysis to argue, as does Judge Hamley, that it. is error to direct a verdict in a criminal case (which it is) and that therefore an instruction which “takes a fact question away from the jury” is a partial direction and also error. This assumes too much. The vice in directing the verdict is that the jury is deprived of any opportunity to decide the case. Even though the judge does, in a sense, decide some issues through peremptory instructions of “law” the jury still gets the whole case for a final determination of guilt or innocence. When the jury entertains that, final question in the privacy of the jury room its freedom is unrestricted. This, is the dispensing power, and all must concede that if the decision is for defendant it is unreviewable and uncorrectable. In practice, it is no doubt less likely that, the jury will exercise an independent choice on an issue presented to them *500 as a matter of “law.” But this only gets us back to the original problem: How far may the judge go in inducing responsible exercise of the dispensing power without unduly infringing on that power?
Perhaps this question can be narrowed still further. Judge Hamley distinguishes, and seems to approve, cases which involve, not peremptory jury instructions, but only “permissible comment” by the trial judge. But I suggest that the fact that a federal judge is given some latitude of permissible comment is a commitment against the irrational verdict and a not inconsiderable impingement on the jury’s discretion. Conceding that a jury might feel less compulsion to follow a judge’s considered opinion than his peremptory instruction “as a matter of law,” I doubt whether the difference in effect often is or ought to be substantial. Mr. Justice Holmes addressed himself to this point in Horning v. District of Columbia, supra, and clearly was not troubled by it. Nor was this court in Peterson v. United States, supra.
I do not see that the method adopted by the trial judge here, which finds support in decisions of this circuit and the only Supreme Court case that seems in point, constitutes any significant abridgment of the defendant’s right to trial by jury. Moreover, I respectfully suggest that the cases upon which Judge Hamley relies do not as strongly support the result that he would reach as his opinion indicates that they do.
Most clearly distinguishable is Sullivan v. United States, 1949, 85 U.S.App.D.C. 409 , 178 F.2d 723 . Defendant was charged with “forging and uttering a physician’s prescription for a narcotic drug” for the purpose of defrauding the United States. ‘He admitted that he forged the prescription and presented it at a drugstore, but denied his intent to obtain a drug. The charge nevertheless told the jury that he had admitted “forging and uttering” within the statutory definition. This was reversed on appeal, because the admitted conduct was not within the statute unless there was intent to obtain narcotics, and that intent was denied. Clearly this case is one in which the trial court either erroneously stated the law, or, as the court seems to have treated it, assumed a fact on which defendant had testified to the contrary.
United States v. Manuszak, 3 Cir., 1956, 234 F.2d 421 , is distinguishable on a different ground. The question there was defendant’s guilt on a charge of interstate shipment of stolen goods. The government introduced witnesses to prove the theft, interstate movement, and defendant’s involvement. The defense was that the accused was not the man, and knew nothing about the events. The court charged that there was no question that a theft had taken place and the only question was whether defendant had been properly identified as a participant. This was held reversible error because the theft was a necessary element, and its existence was for the jury. But it is clear that the appellate court was concerned that all evidence proving the theft was put on by the government. Overwhelming as it was, and uncontested, there was still the question of credibility, and this is always for the trier of fact. Where as in the present case defendant affirmatively accepts and relies on the evidence which establishes an issue in the case, the credibility aspect is absent. Note also that in Manuszak, the question decided by the court was one of “physical fact” not legal significance. The question was: “Did certain acts take place”; not “did these admitted acts amount in law to theft”? The former question is not one which the judge has any special competence to answer by virtue of his legal training and experience; the latter is.
The same analysis, the significance of credibility, may explain United States v. McKenzie, 6 Cir., 1962, 301 F.2d 880 , and Roe v. United States, 5 Cir., 1961, 287 F.2d 435 . McKenzie presents the same problem as Manuszak; defendant charged with possession of illicit whiskey; government witnesses testify as to the crime, and identify defendant as a *501 participant; defendant denies his presence and any knowledge of the alleged acts. One -must believe the government witnesses to believe anything took place at all, as well as that defendant was a party. In Roe, the charge was sale of securities without registration. The items sold were mineral leases, which defendants claimed were not “investment contracts,” and hence not “securities” within the 1933 Act. The Court of Appeals first analyzed the evidence (without indicating which side had produced it) and held, “as a matter of law, the evidence of these transactions, if credited, would constitute” the sale of a security. (Emphasis mine) If, as seems likely, the summarized evidence was government evidence, the same credibility problem is present. It must be conceded, however, that the language in both of these cases suggests that the court would have reached the same result if credibility had not been in issue.
Brooks v. United States, 5 Cir., 1957, 240 F.2d 905 , is also explainable on the credibility point. The question assumed in the charge was the authority of an official, before whom defendant was alleged to have sworn falsely, to administer oaths. The official testified as to his authority and introduced his commission into evidence. The charge was that as a matter of law he was authorized. This was held to be error because it deprived the jury of the right to test the credibility of the witnesses, and to determine whether they believed the government’s evidence beyond a reasonable doubt.
A careful reading of Carothers v. United States, 5 Cir., 1947, 161 F.2d 718 , suggests that this case undercuts, rather than supports, Judge Hamley’s position. Defendants were charged with violations •of OPA maximum price regulations. The trial court’s charge assumed the charging of prices above the applicable máximums. As to one defendant, the court reversed, saying that the court below had directed a verdict as to a material fact. But it added that “the evidence as to the March, 1942, maximum price was quite meager and unsatisfactory.” On the other hand, it sustained the jury charge as to two other defendants because “the defendant’s schedules and the administrator’s order * * * had fixed as matter of law the selling price.” (Id. at 722).
This leaves only United States v. Raub, 7 Cir., 1949, 177 F.2d 312 . In this case both the charge below and the reversing opinion above are so cloudy as to leave me uncertain as to what principle was applied. Defendant was charged with willful evasion of taxes by the filing of a fraudulent return. His defense was an attempted justification of his return as accurate within the revenue statutes, coupled with a denial of fraudulent intent based on his acting on the advice of his attorney. The oral charge, as reproduced in the opinion, was in effect “No doubt he did what he was charged with, you must decide if it was with purpose or intent to evade taxes.” The Court of Appeals held that this prejudged the essential issue of “fraud” and was reversible error. If by this the court meant that the judge might not instruct the jury that the return was false under the law, then this ruling is perhaps contra to the trial court’s charge in the present case. But the opinion’s ambiguous use of the word “fraud”, which to me implies intentional wrongdoing, may suggest that the court was primarily concerned with weighting the question of willfulness against defendant. At best, Raub is not a careful or persuasive analysis of the problem.
In short, I think that the trial court’s instruction was correct. It was short, sensible, direct, mid fully supported by the conceded fant — the union constitution. ^ It had the great virtue of not dealing in vague abstractions. The jury still had the dispensing power, which, as Justice Holmes pointed out, is a “power to bring in a verdict in the teeth of both law and facts.” The charge in no way deprived it of that power.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450172. Public record. Not legal advice.