326 U.S. 607 (1946), 41, Bollenbach v. United States

Docket Nº:No. 41
Citation:326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350
Party Name:Bollenbach v. United States
Case Date:January 28, 1946
Court:United States Supreme Court

Page 607

326 U.S. 607 (1946)

66 S.Ct. 402, 90 L.Ed. 350



United States

No. 41

United States Supreme Court

Jan. 28, 1946

Argued October 12, 15, 1945




1. In a prosecution for conspiracy to commit an offense under the National Stolen Property Act, an instruction to the jury that the possession of property shortly after it had been stolen in another State created a presumption that the possessor had transported the property in interstate commerce constituted reversible error. Pp. 609, 611, 613.

2. The manifest misdirection in the circumstances of this case cannot be treated as a "technical error" not affecting the defendant's substantial rights. P. 614.

3. Under the Criminal Code, one who aids or abets the commission of a federal offense is punishable as a principal; the offense of an accessory after the fact is distinct, and differently punishable. P. 611.

4. A conviction ought not to rest on an equivocal direction to the jury on a basic issue. P. 613.

5. Upon review of a conviction in the federal courts, the question is not whether guilt may be spelt out of the record, but whether guilt has been found by the jury according to the procedure and standards appropriate for criminal trials in the federal courts. P. 614.

Page 608

6. In new of the important place of trial by jury in the Bill of Rights, Congress will not be deemed to have intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be. P. 615.

147 F.2d 199, reversed.

Certiorari, 324 U.S. 837, to review the affirmance of a conviction of conspiracy to commit an offense under the National Stolen Property Act.

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The petitioner was convicted of conspiring to violate the National Stolen Property Act. The Circuit Court of Appeals for the Second Circuit sustained the conviction. 147 F.2d 199. We brought the case here, 324 U.S. 837, because it was submitted to the jury in a way that raised an important question in the administration of federal criminal justice.

The relevant facts upon which decision must turn are these. Bollenbach, the petitioner, and others were indicted upon two counts: for transporting securities in interstate commerce knowing them to have been stolen (48 Stat. 794, 18 U.S.C. § 415; 35 Stat. 1152, 18 U.S.C. § 550) and for conspiring to commit that offense (35 Stat. 1096, 18 U.S.C. § 88). Having been granted a severance, Bollenbach was tried separately. No doubt, the securities had been stolen in Minneapolis and were transported to New York. And it is not controverted that Bollenbach helped to dispose of them in New York.

Page 609

The question is whether he was properly convicted under the indictment. The trial lasted seven days. After the jury had been out seven hours, they returned to the Court to report that they were "hopelessly deadlocked." Interchanges then ensued between court and jury and between court and counsel. One of the jurors asked, "Can any act of conspiracy be performed after the crime is committed?" The trial judge made some unresponsive comments, but failed to answer the question. No exception was noted immediately. In a few minutes, the jury left, but, after twenty minutes, again returned for further instructions. Bollenbach's counsel then indicated that the court had left the bench too hurriedly to enable him to except to the judge's failure to answer the question. After an exception was then taken and allowed, the judge "mistakenly replied," as the lower court noted, "that he had already told them that there could be no conspiracy after the object of the conspiracy had been attained."

After indulging in further colloquy with counsel not here pertinent, the judge stated that he had this note of inquiry from the jury:

If the defendant were aware that bonds which he aided in disposing of were stolen, does that knowledge make him guilty on the second count?

In answer, the judge instructed the jury as follows: [66 S.Ct. 404]

Of course, if it occurred afterwards, it would not make him guilty, but, in that connection, I say to you that, if the possession was shortly after the bonds were stolen, after the theft, it is sufficient to justify the conclusion by you jurors of knowledge by the possessor that the property was stolen. And, just a moment -- I further charge you that possession of stolen property in another State than that in which it was stolen shortly after the theft raises a presumption that the possessor was the thief, and transported stolen property in interstate commerce, but that such presumption is subject to explanation, and must be considered with all the testimony in the case.

Counsel for the accused excepted to this charge, but the judge cut short an attempted request

Page 610

by counsel with the remark, "You may except to the charge, but I will not take any requests." The jury filed out, and returned five minutes later with a verdict of guilty on the second -- the conspiracy -- count. A sentence of two years and a fine of $10,000 were imposed. The Circuit Court of Appeals reversed the judgment, and ordered a new trial. It found error in the charge just quoted. "Certainly it is untenable to say" was the crux of its holding, "that the possession of stolen goods raises any presumption that they have in fact been transported in interstate commerce." 147 F.2d 199, 202. And it held that it could not disregard the error because of the questionable evidence as to whether the accused knew that the bonds had come from another State. But, on rehearing, the Court's attention was called to the fact that, after his arrest, the accused admitted that he knew that the bonds had come from the West, and that he may have had that knowledge before he disposed of them. On further consideration of the bearing of this evidence upon the defendant's knowledge of the place of the theft, the Circuit Court of Appeals changed its view and held that "it would be altogether unwarranted to reverse the judgment because of the mistake in the charge." 147 F.2d at 202.

That Court evidently felt free to disregard "the mistake in the charge" only on its assumption that Bollenbach could be convicted under this indictment as an accessory after the fact. But Bollenbach was neither charged nor tried nor convicted as an accessory after the fact. The Government did not invoke that theory in the two lower courts, and disavows it here. And rightly so. The receipt of stolen securities after their transportation across State lines was not a federal crime at the time of the transactions in question, and we need not consider the scope of a later amendment making it so. See Act of August 3, 1939, 53 Stat. 1178, 18 U.S.C. § 416; H.R.Rep. 422, 76th Cong., 1st Sess. (1939), and S.Rep. 674,

Page 611

76th Cong., 1st Sess. (1939). Bollenbach could not properly be convicted for the offense for which he was charged and for which he was convicted -- namely, for having conspired to transport securities across State lines -- merely on proof that he was a "fence" -- i.e., helped to dispose of the stolen securities after the interstate transportation was concluded. While § 332 of the Criminal Code, supra, made aiders and abetters of an offense principals, Congress has not made accessories after the fact principals. Their offense is distinct, and is differently punished (§ 333 of the Criminal Code, 35 Stat. 1152, 18 U.S.C. § 551.)

We are therefore thrown back upon an appraisal of what the Circuit Court of Appeals deemed a mistaken charge in the proper setting of this case.

The Government does not defend the "presumption" as a fair summary of experience. It offends reason, so the Government admits, as much as did the presumption which was found unsupportable in Tot v. United States, 319 U.S. 463, even though that was embodied in an Act of Congress. Instead, the Government, in effect, asks us to pay no attention to this palpably erroneous answer by the judge to the jury's inquiry as to guilt on the charge of conspiracy to transport stolen securities "[i]f the defendant were aware that the bonds which he aided in disposing of were stolen." We can pay no attention to this misdirection only by assuming that the jury paid no attention to it, and that the case is before us as though no misdirection had been given. To do so is to disregard the significance of the course of events, as revealed by the record, after the case went to the jury.

[66 S.Ct. 405] The Government suggests that the judge's misconceived "presumption" was

just what it appears to be -- a quite cursory last-minute instruction on the question of the necessity of knowledge as to the stolen character of the notes, and nothing more.

But, precisely because it was a

Page 612

"last-minute instruction," the duty of special care was indicated in replying to a written request for further light on a vital issue by a jury whose foreman reported that they were "hopelessly deadlocked" after they had been out seven hours.

In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.

Quercia v. United States, 289 U.S. 466, 469. "The influence of the trial judge on the jury is necessarily and properly of great weight," Starr v. United States, 153 U.S. 614, 626, and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge's last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge.

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