U.S. v. Chiantese

Decision Date27 October 1978
Docket NumberNo. 75-3534,75-3534
Citation582 F.2d 974
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph CHIANTESE and John Joseph Cerrella, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

George D. Gold, Miami, Fla., James J. Hogan, Miami Beach, Fla., for defendants-appellants.

Jack V. Eskenazi, U.S. Atty., Miami, Fla., Ann T. Wallace, George S. Kopp, Atty., Dept. of Justice, Washington, D.C., Gary L. Betz, Sp. Atty., Dept. of Justice, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us on remand from the court sitting en banc. Our initial disposition reversed the convictions of Chiantese and Cerrella 1 because the district court had employed what has come to be known as the "Mann instruction." 2 United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977). The trial judge incorporated the following version of the Mann charge in his final instructions to the jury:

As a general rule it is reasonable to infer that a person ordinarily intends all the natural and probable consequences of acts knowingly done or knowingly omitted. So, unless the evidence in the case leads the jury to a different or contrary conclusion, the jury may draw the inference and find that the accused intended all the natural and probable consequences which one, standing in like circumstances, and possessing like knowledge, should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.

Record, vol. 1, at 790; Id., vol. 4, at 593-94 (emphasis supplied). The instruction is objectionable because the emphasized language may be read to shift the burden of proof on the issue of criminal intent from the Government to the defendant. E. g., Mann v. United States, 319 F.2d 404, 409 (5th Cir. 1963), Cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964).

To reach our original disposition, we felt compelled to formulate a rule of automatic reversal. The district courts of this circuit had continued to give the instruction, perhaps because several of our cases, although inveighing against the charge, had found its use not reversible error. We also intimated that the court had erred in not conducting a hearing to determine whether a conversation among the jurors concerning the attorney for Chiantese was impermissibly prejudicial.

This case was reheard before the court en banc to reexamine this panel's holding on the Mann issue. United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977) (en banc). Judge Clark, writing for the en banc court, exhaustively reviewed the history of the Mann charge and its confused story in this circuit. Id. at 1246-55. Invoking the court's supervisory powers, he set forth for the district courts explicit guidelines, which, by the terms of the opinion, were to apply to trials commenced after ninety days of its publication. He prohibited the district courts from employing the Mann instruction in any of its forms but refused to establish a per se rule of reversal. The sanction for giving the instruction is that, in determining the prejudicial effect of the instruction, this court will not consider charges by the trial judge correctly setting forth the Government's burden of proof. 3 Convictions may still be upheld if it is determined under the circumstances of the given case that the harm engendered by the instruction does not rise to the level of reversible error, but this determination "shall not include consideration of whether a defective charge has been cured by prior or subsequent statements." Id. at 1255.

Accordingly, the en banc court vacated "(t)hat portion of the panel opinion in this action predicating reversal of the convictions of the defendants on the use of the Mann charge" and remanded the case to us "with directions to reconsider the rights of the defendants in light of this decision." Id. at 1256. In compliance with these directives, we determine that the instruction given below does not require reversal.

We have also found it necessary to reexamine our discussion of the district court's handling of the juror's misconduct. On reconsideration, we determine that our original thoughts were in error, and we hold that the failure of the judge to conduct a hearing to determine the effect of the conversation does not require reversal. The defendants assert three additional grounds for reversal, none of which has merit. We discuss them below. Therefore, we affirm the convictions of Chiantese and Cerrella.

The en banc opinion requires us to apply the standards governing cases tried before the effective date of the guidelines set forth in that opinion. The en banc court directed that its prophylactic measures apply "in all trials commenced 90 days after the date of this opinion," 560 F.2d at 1255, and that they "are to be applied prospectively only." 4 Id. at 1256. Therefore, we shall weigh the prejudice of the instruction given below in the context of the charge as a whole. See note 3 Supra.

We think that whatever untoward effect the prohibited instruction may have had in this case was vitiated by other instructions concerning the Government's burden of proof. The record is replete with statements to the effect that the Government has the burden of proving guilt beyond a reasonable doubt 5 and this burden never shifts to the defendant, 6 that a defendant need not call witnesses or come forth with evidence to avoid conviction, 7 that the jury should consider the instructions as a whole and not individually, 8 and that the law presumes a defendant to be innocent and this presumption alone is sufficient to acquit unless the jury finds guilt beyond a reasonable doubt. 9

The law as it stood before the en banc opinion in this case, and therefore the law applicable here, was that the use of Mann instructions "is reversible error only when they mislead the jury to the extent that they tend to reverse the burden of proof in the jury's mind . . . . The complained-of instruction must remain uncured in the context of the full charge to require overturning the jury's verdict." United States v. Netterville, 553 F.2d 903, 917 (5th Cir. 1977) (citations omitted), Cert. denied, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). We think it manifest that the instructions given by the court below would leave no doubt in a juror's mind that the burden of proof on the issue of criminal intent remains invariably upon the Government. Id.; United States v. Roberts, 546 F.2d 596, 598-99 (5th Cir.), Cert. denied, 431 U.S. 968, 97 S.Ct. 2927, 53 L.Ed.2d 1064 (1977); United States v. Duke, 527 F.2d 386, 391-93 (5th Cir.), Cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976). Moreover, several of these curative instructions were given in close proximity to the Mann charge, 10 a factor found to mitigate the effect of the proscribed instruction. See United States v. Durham, 512 F.2d 1281, 1288 (5th Cir.) (noting significance of close proximity but finding even remotely placed instructions sufficient to cure Mann error), Cert. denied, 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); United States v. Jenkins, 442 F.2d 429, 438 (5th Cir. 1971).

We find the curative instructions given by the trial judge sufficient to rectify the Mann error, but we take note of an additional ground to sustain our disposition. It is established in this circuit that the giving of the Mann charge is not always fatal if there is evidence before the jury of objective conduct demonstrating criminal intent. 11 United States v. Durham, 512 F.2d at 1288; United States v. Wilkinson, 460 F.2d 725, 733 (5th Cir. 1972); Helms v. United States, 340 F.2d 15, 18-19 (5th Cir. 1964), Cert. denied, 382 U.S. 814, 86 S.Ct. 33, 15 L.Ed.2d 62 (1965). We believe the facts developed at trial demonstrated ample objective conduct to support a jury finding on the intent issue.

This case concerns the competition between two valet parking services operated at bars and night clubs in the Fort Lauderdale Florida, area. Chiantese and Cerrella owned one service, and the other was owned by Mark Parnass, the chief Government witness. The evidence adduced at trial indicated that the defendants had repeatedly threatened Parnass in an attempt either to force him to join in a "partnership" with them or to get out of the parking lot business. Parnass testified that Cerrella told him to pay one third of his business profits to Cerrella or go out of business. 12 He also testified that Cerrella threatened that he and Chiantese knew where Parnass and his family lived and that "we will hurt you if we have to." Record, vol. 3, at 153. Additionally, a tape recording of a conversation between Parnass and Cerrella, which had been made by means of a transmitter placed on Parnass, was played for the jury. During that conversation, Cerrella told Parnass to get out of the parking lot business, "Or I'm gonna put you in a box." Id., vol. 4, at 411. The recording also contained the following statement by Cerrella: "I ain't coming back with another deal . . . . (Y)ou can tell the Feds, you can tell the local cops. I'll put you in the hospital, you'll come out and know I did it and I'll put you in again." Id. at 412.

In view of this evidence, it is clear that "the jurors were not reduced solely to presuming intent . . . . (T)he government's case did not rest upon mere implications of evil motive, but was supported by affirmative objective evidence of that particular element of the alleged crime." United States v. Wilkinson, 460 F.2d 725, 733 (5th Cir. 1972). We find the employment of the Mann charge in this case not reversible error. 13

The Juror's Remarks

During the course of the trial, Chiantese's attorney informed the court that he had observed a member of the jury conversing with another juror and two alternate jurors. The...

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