United States v. Ornstein, 16074.

• Decision Date: 12 January 1966
• Docket Number: No. 16074.,16074.
• Citation: 355 F.2d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard ORNSTEIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.2d 222 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Howard ORNSTEIN, Defendant-Appellant.

No. 16074.

United States Court of Appeals Sixth Circuit.

January 12, 1966.

Dale Quillen, Nashville, Tenn., for appellant, Theodore Krieger, New York City, of counsel.

Carrol D. Kilgore, Asst. U. S. Atty., Nashville, Tenn., for appellee, James F. Neal, U. S. Atty., Nashville, Tenn., on the brief.

Before CELEBREZZE, Circuit Judge, CECIL, Senior Circuit Judge, and GREEN, District Judge^*.

CELEBREZZE, Circuit Judge.

This is an appeal from a judgment entered upon a jury verdict finding defendant-appellant, Howard Ornstein, guilty on seven counts of an eight count indictment charging him with mail fraud in violation of Title 18, U.S.C.A. § 1341.¹ Count one of the indictment charged defendant with devising a scheme to defraud sawmill operators by selling to them group insurance policies issued in the name of the Carolina Casualty Insurance Company of Burlington, North Carolina, knowing that defendant was not authorized by Carolina Casualty Insurance Company to offer for sale such policies. Count one further charged, and the remaining seven counts charged that for the purpose of executing the above scheme the defendant used the United States mails to send letters to individuals and companies named in the eight counts of the indictment.

Count three of the indictment was dismissed, and the jury found the defendant guilty on the other seven counts. The defendant was sentenced to one year on the first count of the indictment and for a period of one year on the fourth count of the indictment, to run consecutive to the sentence on the first count; a period of one year on the sixth count, to run consecutive to the sentence imposed on the first and fourth counts; one year on the seventh count, to run consecutive to that imposed on the first, fourth and sixth counts; one year on each of the second, fifth and eighth counts, to run concurrently with the sentence imposed on the other counts.

Five grounds are urged for reversing the conviction of the defendant.²

During the direct examination of Earl Hollis, a prosecution witness, the following colloquy occurred in the presence of the jury between the Court and the United States Attorney:

"The Court: What is pertinent about it? We have got a statement in the record that some Carolina Casualty policies were issued. We have a statement in the record that the claims on those policies were paid personally by Ornstein. Isn\'t it all cumulative? We have got a statement in the record that Carolina Casualty never issued any policies. Now what do we need?

"Mr. Lane: Possibly it is cumulative, if that has been proven.

"The Court: You have proved, subject, of course, to the defense, you have proved that Carolina Casualty never authorized issuance of this policy, you have proved a policy with the four digit numbers is a copy of a Carolina Life Policy but was not a policy ever authorized by Carolina Casualty Company. And you have proved that somebody sold some policies in Carolina Casualty Company to a bunch of sawmill operators. And you have proved by this man that he went out and adjusted claims and Ornstein paid them and not the Carolina Casualty Company, but Ornstein paid them. Go ahead, let\'s tend to the issues." (Transcript, p. 74)

The use of the word "proved" related to several necessary elements of the crime charged in the indictment. No objection to these remarks were made by the defendant. The trial judge did not instruct the jury, either after making these remarks, or in his general charge to the jury, that they were not to infer that anything said by him was an expression of his opinion as to the guilt or innocence of the defendant.

In a criminal trial, before a jury, the defendant holds a carefully guarded right to have his guilt or innocence adjudged by the jury. The trial judge must not usurp the functions of the jury, nor give the jury an impression of partisanship on either side. United States v. DeSisto, 289 F.2d 833 (C.A.2, 1961), United States v. Persico, 305 F.2d 534 (C.A.2, 1962). As was stated in Quercia v. United States, 289 U.S. 466, at page 470, 53 S.Ct. 698, at page 699, 77 L.Ed. 1321:

"* * * The influence of the trial judge on the jury `is necessarily and properly of great weight\' and `his lightest word or intimation is received with deference, and may prove controlling.\' This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence `should be so given as not to mislead, and especially that it should not be one-sided\'; * * *."

In Gariepy v. United States, 220 F.2d 252 (C.A.6, 1955), the trial judge said: "I think your case can be made out without calling all those witnesses". The trial judge later instructed the jury:

"I want you to remember that in what I said I did not express any opinion on the merits of this case or the guilt or innocence of the defendant."

In holding this comment of the trial judge was not prejudicial to the defendant, this Court said:

"In the context, the judge\'s remarks would not tend to create the impression upon the

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