United States v. Gerald Olgin, Marilyn Olgin, Jerome Shapiro, James F. O'brocta. Appeal of James F. O'BrOcta

SAROKIN, District Judge,

dissenting:

I respectfully dissent because the court below gave with one hand a fair and accurate jury instruction, and took back with the other that which it had given.

The majority opinion recognizes as “the most troublesome aspect of this appeal” the claim that “the trial judge interfered with O’Brocta’s attempt to persuade the jury of his innocence by characterizing his defense as spurious. Majority op. at 266. The court refuses to “endorse the judge’s use of the word ‘spurious,’ ” which it labels “ill-advised,” id. at 271, but holds that the use of such word does not constitute reversible error. The majority adds that defendant did not adequately preserve the entire issue for appeal, when he failed to object to the curative instruction given by the district court. Id. at 271-272.

In arriving at the conclusion that the trial judge did not deprive defendant of his right to a trial by jury by describing the sole defense asserted as “spurious,” the majority acknowledges that, while courts may comment on the evidence adduced at trial, their discretion in doing so is not unlimited, especially in light of the great influence they have with the jury. Quer-cia v. United States, 289 U.S. 466, 470-72 , 53 S.Ct. 698, 699-700 , 77 L.Ed. 1321 (1933). The Court recognizes that “[tjhere is no bright line separating remarks that are appropriate from remarks that may unduly influence a jury,” and establishes a four-pronged balancing test, or “sliding scale approach” to assess the propriety of such comments. Majority at 268. Thus, the materiality of the judicial comment, its emphatic or overbearing nature, the efficacy of any curative instruction and the prejudicial effect of the comment in light of the jury charge as a whole are to be balanced one against the other: “[t]he stronger the prejudicial effect of a statement is, the stronger must be the mitigating factors.” Id. at 269.

For the most part, the test set forth by the majority clearly and accurately restates the law as previously formulated by this Court. Indeed, the first three prongs of the analysis are derived directly from the Court’s recent discussion of this issue in United States v. Anton, 597 F.2d 371, 375 (3d Cir.1979), quoting United States v. Gaines, 450 F.2d 186, 189 (3d Cir.1971), cert, denied, 405 U.S. 927 , 92 S.Ct. 978 , 30 L.Ed.2d 801 (1972). It is the fourth prong of the test here enunciated that is troubling, not so much in its formulation as in its application by the majority. In the abstract, there is no question but that the reviewing court should assess “the prejudicial effect of the comments in light of the jury instruction as a whole.” Majority at 269. However, the majority here utilizes this common-sense notion to find that, in light of the correctness of the remainder of the trial judge’s charge, the court’s comments cannot be found to be reversible error. Indeed, both in its rendition of the facts and its legal analysis, the majority gives great weight to the fact that, other *274 than the comment here at issue, the district court’s instructions were correct. Id. at 266-268. This is a conclusion with which I agree. However the accuracy of the charge on the law is essentially irrelevant to the issue of the appropriateness of judicial commentary on the evidence. Indeed, were the instructions incorrect, then they would provide an independent basis for reversal and eviscerate the need for this inquiry; it is their very correctness that requires the appellate court to examine the problem created by judicial comment. 1 The question that must be asked is not the extent to which the charge as a whole was wrong but whether in commenting upon the evidence the trial court exercised appropriate restraint in light of the materiality of the evidence addressed, and gave an effective curative instruction, assuring the jury that it was not bound by the court’s factual conclusions. That the remainder of the charge was correct should begin, rather than end the inquiry.

However, having established a standard of review, the majority then proceeds to misapply it, as to each of the four prongs set forth. First, the majority distinguishes the instant matter from Gaines , in which, it says, “the judge’s remarks went to the core of the defense.” In so doing, the majority speculates that “[t]he trial judge’s comment on the effect of the underreport-ing might well have been intended merely to alert the jury that [the argument that there were no actual tax consequences of defendant’s actions] was not particularly relevant to the charge against O’Brocta.” Majority at 271.

The majority’s argument that the trial court’s comments did not go to the core of the defense is utterly without merit. In fact, the trial court’s charge disparaged defendant’s sole defense, that he believed that the effect of underreporting certain income was, in light of what he claimed to be on equal underreporting of certain expenditures, not illegal, since there was to be no effect on his tax bill. Defendant thus claimed that he lacked the mens rea required for a criminal conviction under 26 U.S.C. § 7206 . See generally United States v. Pomponio, 429 U.S. 10, 12 , 97 S.Ct. 22, 23-24 , 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346, 360-61 , 93 S.Ct. 2008, 2017-18 , 36 L.Ed.2d 941 (1973) (the mens rea requirement “implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers”). The district court, while charging this mens rea requirement properly, then stated in no uncertain terms:

There has been an admission here that gross expenditures were also falsely reported and an argument made that they should cancel each other out, and that is spurious of course, in that it omits the consideration of inventory.

The effect of this statement on defendant’s case must have been devastating: the trial court judge appeared to be saying to the jury that he regarded defendant’s argument, and with it, his whole defense, as “spurious.” In so doing, he also expressed his opinion as to defendant’s credibility, for such defense had been established primarily by defendant’s own testimony. App. at 408-413. And he did so by injecting into the case an issue not otherwise charged, explained, or presented to the jury by ei *275 ther party, precisely as in Quercia. 289 U.S. at 471-72 , 53 S.Ct. at 699-700 . The court thus demolished defendant’s sole defense, destroyed his credibility and did so in a manner unsusceptible of review by a jury unfamiliar with the basis of the court’s conclusion. While it is true, as the majority suggests, that the charge may have been intended to let the jury know that, in fact, understating both gross receipts and cost of goods sold does not create a correct tax return, 2 it is equally true that the jury may have interpreted the court’s comment to mean that as a matter of law, the sole defense asserted was “spurious.” At the very least, the charge indicated in the clearest of terms the judge’s skepticism of defendant’s case. To say, as the majority does, that it did not involve a material aspect of the case is to cast aside all of what defendant was attempting to prove. Furthermore, to the extent that the court’s comment bore on defendant’s credibility, upon which any good faith defense must rest, it also improperly intruded on the jury’s province. Anton, supra, 597 F.2d at 374-75 .

Second, the majority concludes that the court’s statement was not strong enough to warrant reversal. If this is true, it is hard to imagine what would be strong enough. “Spurious” is defined as “outwardly similar or corresponding to something without having its genuine qualities: false, counterfeit,” “faulty in reasoning or conclusion: illogical, specious,” or “irrelevantly inapplicable: lacking correspondence to reality: vaguely ambiguous: pseudo.” Webster’s Third New International Dictionary of the English Language Unabridged at 2212 (1976), To label one’s sole defense, or the facts relied upon by defendant which comprised such defense, false, fraudulent, specious or lacking correspondence to reality is a strong statement indeed, not very different in vehemence or, ultimately, in content from the statement that “[t]he court— that is, the trial judge — regarding [defendant] as devoid of credibility, and I do not believe [him] absolutely and in all respects” found to constitute reversible error in Anton, 597 F.2d at 372-73 . Here too the language was strong, attacking the gravamen of the defense asserted, and impugning defendant’s credibility, without such qualifying statement as had followed in Anton 3 It is a statement which did not question a particular assertion of defendant, as in United States v. Blair, 456 F.2d 514, 519 (3d Cir.1972), for defendant here did not assert that, in fact, receipts and costs of goods sold cancel each other out. Rather, the trial court’s statement denigrated defendant’s belief that such cancel-ling out occurs, the sole issue before the jury. Such “emphatic and overbearing” remarks must be viewed as an intrusion upon defendant’s right to a jury trial, and as such, reversible error.

Nor was the curative instruction given by the district court adequate to dissipate the taint created by the court’s prior comment. To the contrary, that instruction re-emphasized that the spuriousness of defendant’s defense was the court’s “conclusion”:

With respect to the court’s comment on whether or not the receipts of money and expenditures of money and cash — I may have used the word “spurious.” That is solely a conclusion that the court drew.

App. at 559. The court went on to re-state such conclusion in the context of re-establishing the jury’s role as factfinder.

The opinion of the court that there is inventory is solely the opinion of the court and does not bind the jury in any *276 way as to whether or not that would be a logical contention to make, that those two cancel each other out.

App. at 560. Hence, the judge, while not limiting himself to the “abstract instructions regarding the jury’s role as factfinder” found insufficient in Anton, supra, 597 F.2d at 375 , gave a curative instruction which re-stated his “opinion” that defendant’s good faith belief did not constitute “a logical contention to maks.” In so doing, the court made less than vigorous efforts to remind the jurors that the facts were theirs to find: it state! only that the court’s “opinion” and “conclusion” did not “bind the jury in any way,” a far weaker formulation than that itilized in Blair , where the court reminded the jury “you use your judgment, because yours prevails, not mine ... that is one of the facts you must determine ... no matter what I think, it is what you think that prevails.” 456 F.2d at 519 . Added emphasis and repetition in Blair may well have outweighed the district court’s opinion expressed earlier, and reiterated after objection. Here, no such emphasis or repetition drove this point home to the jury, and the majority thus errs in describing the curative instruction given as “similar to one which the court found to be sufficient in Blair.”

Finally, the correctness of the remainder of the charge does not excuse the district court’s single erroneous instruction where, as here, that instruction undermines all that came before and after it. This is especially so where the judge’s reminders to the jury that they were to find facts, both regarding willfulness and otherwise, were both fewer than in a case such as Gaines, 4 and weaker than in the other cases in which judicial comments have been addressed by this court. 5 For the Court nonetheless to find that the district court neutralized its highly prejudicial statement by virtue of sparse, lackluster and unenthusiastic admonitions, allows courts greater control over jury verdicts and paves the way for deeper inroads into the right to trial by jury than this Court has ever before allowed.

Moreover, in purporting to examine the judge’s comment in context, the majority fails to account for the larger context out of which the jury charge, as a whole, grew. The record here reveals a trial judge who, throughout the trial, viewed defendant’s case with a jaundiced eye. Originally unaware of the defense being presented, App. at 165-66, the court interpreted the defense narrowly throughout, often in the presence of the jury, (e.g., App. at 275), and as late as the last day of trial, stated that the intent at issue was “to make a false report, knowing the law requires it.’ App. at 461. 6 While I agree with the majority that the district court’s rulings as to the relevancy of evidence did not constitute an abuse of the broad discretion accorded a trial judge by Federal Rule of Evidence 403, see, e.g., United States v. Clifford, 704 F.2d 86, 89 (3d Cir.1983), nor are they commendable in the context of a clear pattern of skepticism toward defendant’s case. Finally, it should *277 be noted that the district court did not allow counsel an opportunity to review, or object to, much of the charge to be given prior to such instructions, which were to be adaptations of the government’s proposed charges, put in the court’s own language (481a-484a). Of course, no prior mention was made of the court’s intention to label defendant’s defense as “spurious.”

The Court today not only seeks to expand the parameters of permissible judicial behavior, moving away from a sensible trend against the type of judicial commentary here allowed, and thus to contract the constitutional jury trial right guaranteed to all criminal defendants, but it does so, in part, by the needless formalism of holding that defendant did not properly preserve the issue for appeal. This conclusion is also without basis. After the district court had completed its jury instructions, counsel for defendant objected clearly and articulately to the instruction given. App. at 556. This satisfies the requirement imposed by Federal Rule of Criminal Procedure 30. The majority, however, states that defendant did not properly preserve his right to object to the curative instruction as well by failing to object to that instruction after it was given.

This Court, in seeking to balance the salutary purposes that underlie Rule 30, and the potential for its degeneration into “a trap for the wary, a trap reminiscent of the senseless technicalities that characterized common law procedural systems ...” has never before required that a party object to both a jury instruction and to the curative instruction that follows. See United States v. Currens, 290 F.2d 751, 758-59 (3d Cir.1961) (failure to object to supplemental charge did not insulate issue from appeal). To so require where, as here, the issues raised by the two sets of instructions are not only inextricably intertwined but, under the majority’s formulation, necessary parts of the same analysis, is to place unnecessary hurdles in the way of the litigant who seeks resolution of what is essentially one problem. Indeed, the majority here proposes a delicate balancing test, in which prejudice is to be weighed against the efficacy of a curative instruction, but then mandates that in order to invoke that test in its entirety, a defendant must object not once by twice. The unfairness of such a result is highlighted here, where the district court failed even to give counsel an opportunity to object to the supplemental charge, see App. at 560, a charge which was the culmination of a series of events to which counsel had unequivocally objected. Had he objected yet one more time, there is little reason to believe that the trial court would have corrected its error, or even had been able to do so. Moreover, it should be noted that the Court here reaches out to bar defendant’s appeal, although the issue was never raised by the government, which briefed and argued this issue as though properly preserved in toto. Appellee’s Brief at 21-22. See Currens, supra, 290 F.2d at 760-61 . The Court thus goes out of its way to reach a result not only discordant with its previous caselaw, but predicated upon a position never asserted by the government.

This is, after all, a case in which a trial court judge properly charged the jury as to a perfectly valid defense raised by a defendant, and then undermined that charge by telling the jury that, based upon his own theory of the case, that defense was spurious. That he told the jury a few times that the decision was theirs to make — once while reiterating that the spuriousness of the defense was his “conclusion” and “opinion” — did not dilute the effect of his earlier statements: that, in effect, he thought defendant was guilty and that defendant’s testimony could not be believed. The majority here ignores reality in suggesting that the jury was nonetheless free to make its own, independent decision.

For a court thus to ridicule the sole defense asserted and reiterate its view after appropriate objection is to deny defendant his right to a fair trial by jury. Recognizing that it is not wholly inappropriate for courts to comment on the evidence adduced at trial, the majority here abandons the limiting principles that have previously been imposed on this practice by this Court *278 and goes well beyond its holdings in prior cases regarding the propriety of judicial comment on the evidence in a criminal trial. In so doing, the Court not only fails to recognize the inherent influence that such comments may have on jury deliberations, but also disregards the stringent requirement that a trial judge not have “abandoned his proper role” and “reached the point where ‘it appears clear to the jury that the court believed the accused is guilty.’ ” United States v. Beaty, 722 F.2d 1090, 1093 (3d Cir.1983) (citing cases).

Even those precedents which permit a judge to express his or her views on credibility and suggest that a jury properly instructed can or will ignore such comments from the court border on fantasy. But to conclude that based upon some boilerplate instructions, a jury can ignore the elevated, robed, experienced jurist who has stated that he believes the defense to be without factual or legal basis or both is to close our eyes to reality and transform a courtroom into a land of make believe.

I dissent.

. The majority cites United States v. Gaines, supra, 450 F.2d at 190 , for the proposition that "the reviewing court must assess the prejudicial effect of the comments in light of the jury instructions as a whole." Gaines states simply that a particular comment was not an abuse of the trial court’s discretion "viewed in light of [the] complete charge." Id. However, the Gaines Court apparently referred not to the substantive correctness of the legal charge there propounded to the jury, which is never discussed, but to the immediate context of the judge’s remarks, 450 F.2d at 188-89 , as well as his repeated instructions to the jury as to their role as sole determiners of credibility and fact. Id. at 190-91 and n. 9. Here, the majority cannot and does not rest its conclusion on such a limited context, but on the charge as a whole, which it finds to be correct, particularly as to willfulness. Such correctness can be, and was, undermined by the trial court’s comments, which were neither properly restrained, nor effectively neutralized, as in Gaines .

. The judge may have been correct that, under Internal Revenue Service regulations, cost of goods sold, as it is used in arriving at an income amount, must take inventory into account. See 26 C.F.R. 1.471-1. However, to state that the idea that cost of goods sole and income should cancel each other out is "spurious" insults defendant’s belief that they did and thereby undermines his entire defense.

. That qualifier, that "I do not believe [the defendant] absolutely and in all respects" was found not to constitute reversible error in United States v. Kravitz, 281 F.2d 581 , 584-85 and n. 4 (3d Cir.1960), cited in Anton, supra, 597 F.2d at 373 .

. In Gaines , the district court "repeatedly" told the jury that it was the finder of facts. Such instruction was only given three times in this case, including the curative instruction. App. at 525, 548, 560.

. Here, immediately following the comment here at issue, the district court stated:

It is for you, the jury, to determine from all the facts, all of the surrounding circumstances, whether the defendant, with respect to the three charges, acted willfully, in the sense that he knew what he was doing was contrary to law, and he knew that the statements were false.

App. at 548-49. This instruction is far less emphatic than those approved by the court in Gaines, 450 F.2d at 188-89 , and Blair, 456 F.2d at 519 , as to the principle that it is the jury’s and not the court's role to find the facts, especially those facts upon which the court had just commented. Indeed, it is not even as effective as that found insufficient in Anton , where the district court had reminded the members of the jury that they were the “sole judges of credibility” (emphasis supplied), that his comments were “only the expression of [his] opinion,” and that “at all times ... you, as jurors, are at liberty to disregard all comments of the court in arriving at your own findings as to the facts.” 597 F.2d at 373 .

. See also App. at 487 (THE COURT: I really enjoyed [O’Brocta’s] last remark____ We were brought up to be honest.”)