United States v. Sammy G. Daily and Frederik A. Figge

ORDER ON REHEARING

March 1, 1991.

Before HOLLOWAY, Chief Judge, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BROR-BY and EBEL, Circuit Judges, and SEAY, Chief District Judge. *

On consideration of the plaintiff-appel-lee’s petition for rehearing and rehearing en banc, a majority of the panel, Judge Holloway and Judge Ebel, conclude as follows, Chief Judge Seay voting to grant rehearing by the panel:

First, the government argues that the refusal of the defendants’ requested character evidence instruction was not preserved for appeal and may not be noticed as plain error under Rule 52(b), Fed.R. Crim.P. We note that except for a trivial and inconsequential change of one word, 1 the well-recognized character and reputation defense instruction was specifically requested by the defendants. 1 Federal Jury Practice § 15.25. When defense counsel were advised it would not be given, at the instruction conference a general request was renewed by them that all requested instructions be given and that defendants objected to their being denied. XXXV R. 5743.

We have held that tendering of instructions which were not given, and a mere statement that they fit the case and should be given, does not preserve the issue. United States v. Martinez, 776 F.2d 1481, 1484 (10th Cir.1985). Our opinion in the instant case did not hold, and we do not now hold, that in all instances the failure to give such a character instruction as was requested here is plain error. Nevertheless we remain convinced that on this record, and due to the particular circumstances of the issues at this trial, we should notice the error of rejection of the critical instruction.

The sole conviction that resulted and is before us was that on Count 30, a charge that Daily and Figge conspired, in violation of 18 U.S.C. § 371 , to commit wire fraud ( 18 U.S.C. § 1343 ) and to submit false statements as to matters within the jurisdiction of a federal agency ( 18 U.S.C. § 1001 ). Such a crimen falsi is a paradigm case for consideration of evidence of good character or reputation. Edgington v. United States, 164 U.S. 361, 363 , 17 S.Ct. 72, 73 , 41 L.Ed. 467 (1896); see Unit *1014 ed States v. Darland, 626 F.2d 1235, 1237 (5th Cir.1980), cert. denied, 454 U.S. 1157 , 102 S.Ct. 1032 , 71 L.Ed.2d 315 (1982). Here such evidence was presented by both defendants through their own testimony and other testimony.

Daily called witness Burkhart who worked directly with Daily in the Air Force on the Pacific Inspection General’s team. XV R. 3. He later came to work for Daily as an office manager in 1979. He said Daily's training book for office workers instructed that their activity be conducted so that “it’s legal and ethical.” Id. at 10. Burkhart said he still considered Daily an honest man and had no reason to doubt the basis of their friendship established 13 or 14 years earlier, although Burkhart had lost his savings and investment in the business venture with Daily. Id. at 21-22. Daily testified about his 24 years of Air Force service; his several meritorious commendation medals and two bronze stars for valor; his assignment to the Pacific Air Force Inspector General’s team. Daily’s recognition for trustworthiness was shown by his testimony that he held a top secret security clearance from the time he was a first lieutenant, which followed investigation of his background to “make sure you are a reputable, upstanding man and they go into your complete background.” Daily had more than one such clearance, having checks when he went to Viet Nam and when he went to a Pentagon assignment, with the F.B.I. investigating his background to see if he was worthy of the responsibility of a top secret clearance. XII R. 13-14, 20-22.

Thus as to Daily there was substantial evidence introduced of good character and reputation through witness Burkhart and also by Daily himself, which is permissible. As the Ninth Circuit has stated: “Unlike character witnesses, who must restrict their direct testimony to appraisals of the defendant’s reputation, a defendant-witness may cite specific instances of conduct as proof that he possesses a relevant character trait such as peaceableness.” United States v. Giese, 597 F.2d 1170, 1190 (9th Cir.1979) (footnote omitted), cert. denied, 444 U.S. 979 , 100 S.Ct. 480 , 62 L.Ed.2d 405 (1979). See also McCormick on Evidence § 191, at 568 (E. Cleary 3d ed. 1984) (“By relating a personal history supportive of good character, however, the defendant may achieve the same result.”) [hereinafter McCormick ].

As to Figge, there was likewise substantial evidence of good character and reputation by Figge’s testimony and other testimony. There was testimony by Mr. Young, a certified public accountant, who did accounting work on Figge’s tax returns, tax work for his partnerships and tax planning. XXXIV R. at 5341-5344. Young dealt with Figge directly for several years. Young testified that Figge never tried to “hide things” in his tax returns; Young never had trouble in getting answers to questions and Figge was always able to respond; and Figge never requested any deletion or alteration of anything during such work. Id. at 5369-70.

Figge testified that he worked for Northrop for several years; that during military projects he worked on, he had secret clearances nearly all the time; that F.B.I. agents and others investigated his background; these clearances were updated; the security clearances were held by Figge since his first work with Northrop in 1952 and up to an administrative termination until this trial was finished. Figge described his community activities such as being Budget Chairman for his homeowners’ association in his condominium complex of about 368 units; he served on the Board of Trustees for his church for some four years; he was also elected to a national board of directors for the Junior Chamber of Commerce and to three international offices of the organization, and Figge received one of their highest honors, a lifetime membership, and was elected president of the California center in 1972 of the Jaycees. Id. at 5404-11. Thus Figge himself also presented substantial character evidence which is permissible, as noted above. McCormick, supra, § 191 at 568.

Since, as noted, there was testimony by the defendants and by others on their behalf as to the character and reputation issue, we need not decide whether a defendant by his testimony alone may place his character in issue.

Along with the extent of character evidence presented for the defendants, we note the defendants’ acquittal on numerous charges and their convictions on the conspiracy charge alone. Moreover, the jury’s deliberations extended for three days, with a pause only for the Christmas holiday, before the guilty verdicts were returned. In light of all these circumstances, we are constrained to hold that refusal of the requested instruction was plain error affecting substantial rights to a fair trial, an error we should notice. Rule 52(b), Fed.R. Crim.P.; see United States v. Logan, 717 *1015 F.2d 84, 88, 91-92 (3d Cir.1983) (determination on plain error depends upon facts and circumstances, plain error being found); cf Darland, 626 F.2d at 1237 .

We do not diminish the importance of the general rule provided in Rule 30, Fed.R. Crim.P., requiring a distinct objection to a charge or to the refusal of an instruction. We hold only, in accord also with the rules, that under Rule 52(b), plain error should be found here in the refusal of such a requested instruction, considering “the record from all four corners.” United States v. Munz, 504 F.2d 1203, 1209 (10th Cir.1974).

Accordingly, the petition for rehearing by the panel is DENIED by order of Judge Holloway and Judge Ebel. Chief Judge Seay voted to grant rehearing by the panel. A request for a poll having been made, the suggestion for rehearing en banc was considered by all the active judges of the court and denied by them, Judge Baldock voting to grant rehearing en banc. Accordingly, the suggestion for rehearing en banc is DENIED.

. In paragraph 3 of the requested instruction, defendants submitted an instruction stating that in light of reputation evidence inconsistent with traits involved in committing the offense charged, the jury may think it improbable "that a person of good character in respect of those traits would commit such a crime.” (Emphasis added.) The instruction in 1 Federal Jury Practice § 15.25 uses the word "to” instead of "of.”