United States v. James G. Demopoulos

PELL, Circuit Judge

(dissenting).

While the majority opinion is persuasively written, I am unable to dispel an opinion that the cumulative effect of the various matters raised by the appellant was such as to deprive him of a fair trial. Accordingly, I respectfully dissent.

Since, however, the determination of whether the combination of several incidents creates a sufficiently unfair trial as to call for reversal is essentially a balancing process with judgmental analysis being involved, I shall direct my attention primarily to two aspects of this trial which when taken together, and I do not believe they can be considered separately, deprived Demopoulos of a fair trial.

The two are: (1) the improper question put to a character witness saying in effect to the jury that Demopoulos had been previously picked out as a defendant in another courtroom in the federal court house building; and (2) the subsequent instruction indicating that a finding that the defendant had the requisite specific intent could be based upon his having been involved in similar prior crimes and transactions. The other trial incidents complained of, of course, when added to this base merely strengthen the necessity for a new trial.

The error of the instruction, tendered by the government and given by the court, cannot be viewed in a noncontextual vacuum. It is not disputed that there was no evidence of similar prior crimes and transactions but the entire tenor of the trial of the ease, tried as it was during a period of widespread newspaper publicity in Chicago concerning scandals in the police department, was strongly suggestive to the jury that the defendant Demopoulos was a part of those transactions. Particularly, the reference to prior criminal transactions was given further significance in the *1182 eyes of the jury because of the question put to the character witness indicating that Demopoulos “had been picked out while a spectator, as a defendant, in this building?”

' I do not deem that there was any adequate cautionary instruction to remove from the jury’s mind this reference to the defendant being identified as a defendant in another case in the same courthouse when taken in juxtaposition with the instruction with regard to specific intent. Counsel objected to the question to the character witness and the objection was sustained. Counsel then moved that the jury be instructed to disregard that completely. Only after the prosecuting attorney withdrew the question did the court advert further to the clearly improper question and then merely stated, “[ejounsel for the government will withdraw the question, and the court instructs the jury to disregard the asking of that question.” This conveyed nothing more to the jury than the fact that since the question had been withdrawn they should pay no attention to it. There was no admonition specifically directed to the matter of not giving any consideration to the fact, or the impropriety of disclosing, that Demopoulos had been picked out as a defendant in another case.

The error is made more serious by the fact that the incident involved a case of mistaken identification.

I fail to comprehend how the jury could not have been misled by the reference to “similar prior crimes and transactions” since no evidence had been presented in this regard. The very fact of lack of evidence has long been deemed a highly cogent reason for elimination or preclusion of reference in an instruction.

Thus, in United States v. Breitling, 61 U.S. 252, 254-255 , 15 L.Ed. 900 (1858), Mr. Chief Justice Taney stated:

“It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony.”

The converse of the present rule is the well-settled rule in criminal cases that if there is no evidence to support a particular defense, the trial judge is justified in refusing to submit such defense to the jury. United States v. Gosser, 339 F.2d 102, 109 (6th Cir. 1964), cert. denied, 382 U.S. 819 , 86 S.Ct. 44 , 15 L.Ed.2d 66 . No more, however, should there be an instruction given as to which there is no supportive evidence.

In United States v. Collier, 313 F.2d 157, 159 (7th Cir. 1963), cert. denied, 374 U.S. 844 , 83 S.Ct. 1900 , 10 L.Ed.2d 1064 , this court held erroneous an instruction explaining the term “special employee” because there was no basis in the evidence and another instruction which assumed, “with no proof of the fact, that defendant was ready, willing and able to commit the offense charged.”

The mere implication of unlawful conduct other than that charged against a defendant is ground for reversal. In United States v. Leggett, 312 F.2d 566, 574 (4th Cir. 1962), the only issue was whether the defendant had represented himself to be an F.B.I. agent. The Government in presenting its case claimed he was not even licensed as a private investigator. The trial court in referring to this contention, charged the jury in part:

“And had no right therefore to seek information concerning the registration of any guests they had and that at the most he was a trespasser.”

In reversing, the court stated:

“If he had been an invited and welcome guest it would have made no dif *1183 ference. 'Trespass’ signifies a transgression or wrongful act, Nolan v. New York N. H. &. H. R. Co., 70 Conn. 159 , 39 A. 115 , 43 L.R.A. 305 ; and this is particularly true in the minds of laymen, unacquainted with the niceties of legal definitions. The facts of this case did not justify applying the term ‘trespasser’ to the appellant and its use may well have led the jury to infer that the appellant committed a crime just by going to the motel. It certainly tended to divert them from the real and sole issue in the ease.”

The mere inclusion of the words “assaults any person” in an instruction dealing with a Count of an indictment which did not charge an assault, although the section of the statute on which the Count was based did include “assaults any person,” was deemed serious enough error to require reversal “and so clear that appellant is not precluded from raising it here notwithstanding that he failed to object to that charge below.” United States v. Roach, 321 F.2d 1, 4 (3d Cir. 1963).

While ordinarily an incorrect instruction if favorable to the defendant will not be deemed prejudicial to him, “[w]hen a false issue of magnitude sufficient to nullify proper consideration of the issues is inserted into a case [by instructions], the proper administration of justice is thwarted and a conviction so based cannot stand.” Michaud v. United States, 350 F.2d 131, 133-134 (10th Cir. 1965). There the court held that the inclusion of a false issue in the ease was plain error under Rule 52(b), Fed.R.Crim.P., requiring reversal. In the case before us the trial court interjected, albeit inadvertently but nevertheless patently there, an extraneous issue of law. “Extraneous law may be quite as prejudicial as extraneous facts. Verdicts should be based only on the evidence in the case and the pertinent law as applied to that evidence.” United States v. Hill, 417 F.2d 279, 281 (5th Cir. 1969).

In Morris v. United States, 326 F.2d 192, 195 (9th Cir. 1963), the district court gave an instruction that flight or concealment immediately after the commission of a crime may be considered as a fact hearing on guilt just as in the case at bar prior similar crimes or transactions could be considered as bearing upon the existence of specific intent. In Morris , there was no evidence that the defendant had fled or concealed himself. Here there was no evidence of prior similar crimes. In Morris , “the danger that the jury might have been led to indulge in conjecture” was heightened by a testimonial reference to the defendant as a fugitive. In the present case, the danger of jury conjecture was heightened by the reference (in the improper question during testimony) to Demopoulos having been picked out as a defendant in another case. In Morris , there was a reversal. There should be here.

The prejudice of the unremoved reference to criminal identification plus the erroneous instruction was made more stringent in impact in the present case by the fact that the basic question presented to the jury was to decide as a matter of credibility whether to believe Boznos who identified the defendant as the person to whom the money was paid or whether to believe the defendant who took the stand and denied any participation. The only other eye witness to the transaction was unable to identify Demopoulos in the courtroom. On the one-to-one basis presented to the jury, it is impossible to say that the scales-tipping feather was not the false criminality issue introduced and it is no answer to say that the introduction of the false issue was inadvertent. Also other factors here must be considered as further denigrating the defendant’s credibility, such as the trial court’s rebuke of the defendant as a witness.

It is true, of course, that a proper objection was not made to the instruction. However, in the highly improper way in which the matter of instructions was handled the lack of objection is not surprising. It helps Demopoulos’s miscarriage of justice very little that the *1184 district court judge is no longer following the cursory procedure utilized in the present case. With further reference to the nature of the attention given to the matter of instructions, it is noted that the defendant tendered some 25 instructions, each of which, according to the trial judge, he had carefully considered and had marked “Given” or “Refused.” Yet, every instruction tendered by the defendant was refused with a notation in each case that it was repetitive or argumentative or both. Perhaps most of the tendered instructions were covered by those given by the court; however, a careful examination woúld have reflected that defendant’s instruction Q was verbatim with that given by the court with the exception of the added crucial words “and from similar prior crimes and transactions.”

With regard to the other contentions raised by the defendant, I emerge from an examination of the record with the distinctly uncomfortable feeling that somewhere along the line sight was lost of the sole issue which was supposedly being tried and that was whether Demopoulos falsely denied to a grand jury that he had picked up a package of money in February 1969 at a specified restaurant in Chicago from one of two named individuals. This was not a trial of an obstruction of justice charge nor a bribery case, nor even a disbarment proceeding. Although the parties stipulated facts prior to the trial which rather clearly demonstrated the materiality of the challenged grand jury testimony and although the court treated the materiality determination as being for the court and not the jury, nevertheless substantial portions of the grand jury testimony went before the trial jury as to occurrences both before and after the supposed restaurant meeting.

Finally, in viewing the record as a whole, I find myself disturbed by the frequency with which resort has had to be taken to cautionary instructions to save the fairness of the trial. Under the circumstances of this case, Mr. Justice Jackson’s often quoted words in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453 , 69 S.Ct. 716, 723 , 93 L.Ed. 790 (1949), are particularly apt: “The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.”

For the reasons set out hereinbefore, I would reverse and remand for a new trial.