U.S. v. Desmond

• Decision Date: 03 March 1982
• Docket Number: No. 81-1590,81-1590
• Parties: UNITED STATES of America, Appellee, v. Francis P. DESMOND, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 414

670 F.2d 414

UNITED STATES of America, Appellee, v. Francis P. DESMOND, Appellant.

No. 81-1590.

United States Court of Appeals Third Circuit.

Argued Dec. 1, 1981.

Decided Jan. 19, 1982.

Rehearing Denied March 3, 1982.

John Rogers Carroll (argued), Thomas Colas Carroll, Carroll & Carroll, Philadelphia, Pa., for appellant.

Howard B. Klein, Asst. U. S. Atty. (argued), Peter F. Vaira, Jr., U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ALDISERT, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

Submission of special interrogatories to a jury in a criminal trial is not favored because they may unduly restrict that body's historical power to acquit. Their use in the case at hand, however, did not rise to the level of plain error. Accordingly, we reject defendant's challenge to his conviction based on the jury's answers to interrogatories to which no objection was made at trial.

Defendant, a practicing attorney in Pennsylvania, was charged with violating the Internal Revenue Code, 26 U.S.C. § 7206(1), by failing to report approximately $48,000 in income during the taxable years 1973, 1974 and 1975. He presented no testimony at trial, but through cross-examination and argument, contended that he had not acted willfully or with the belief that the returns were incorrect as to any material matter. The fact of underreporting itself was not contested. Rather, defendant advanced as excuses a combination of careless bookkeeping and his erroneous opinions on the taxable status of the funds. On cross-examination, a number of government witnesses testified to defendant's good character.

At the conclusion of the evidence and before final summations, the trial judge told counsel that he proposed to submit the case to the jury on three written interrogatories that incorporated the elements of the offense charged. The questions were framed so that an answer of "yes" was equivalent to a guilty verdict, and "no" indicated a not guilty finding. The judge told counsel that "when we take our break, I will give you the verdict slips, and you may feel free to edit them if you want to." Defense counsel did not object then or afterward, nor did he suggest any changes in language.

The interrogatories were similar for each of the three counts and read as follows:

"1. Has the government proved beyond a reasonable doubt each of the following:

(a) that the defendant willfully made and subscribed to an incorrect 1973 federal income tax return;

(b) that defendant's 1973 federal income tax return contained a written declaration that it was made under the penalty of perjury; and

(c) that defendant did not believe his 1973 federal income tax return to be true and correct as to every material matter when he signed it and said return was not true and correct as to every material matter.

The undersigned, members of the jury, hereby certify that the foregoing answers to interrogatories are the unanimous action of the jury:

(SEAL)"

When the judge reviewed the interrogatories during the course of the charge to the jury, he pointed out that they set forth the three elements of the alleged crimes and explained:

"If you find that the Government has established those elements beyond a reasonable doubt, then you would answer, yes, which would equal guilty.

"If you find the Government, as the defendant contends, simply has not met the burden of proof, you would find, no, which equals not guilty.

"Each juror must sign on the last page, page 3. Your verdict must be unanimous on each question. There is no majority vote in the federal jury room."

In his instructions, the trial judge also described the nature of character evidence, saying in part,

"Evidence of the defendant's reputation inconsistent with those traits of character ordinarily involved in the commission of the crime charged may give rise to a reasonable doubt as to his guilt. Since you the jury may think it improbable that a person of good character and in respect to those traits would commit the crime charged in this instance, it is strictly up to you.

"Character evidence is a piece of evidence you may use in assessing the overall guilt or innocence of the defendant on the three counts in this case."

Later in the charge, the judge discussed the element of willfulness at some length emphasizing that the prosecution was required to prove that defendant acted deliberately and with the intent to violate the law, rather than carelessly or inadvertently. After reviewing the government's contentions, the court explained the defense theories, and said:

"Finally, the defendant strongly urged that all of the Government's witnesses practically-I shouldn't say all, a good number of the Government's witnesses testified that his reputation for truth and veracity was good, and that if you find that a person with that kind of reputation is unlikely to commit this kind of crime, you could acquit him on that basis. Again, it's strictly up to you. That's why we have the jury system. That's why our country is so much better than other countries. Nobody can be convicted of a crime unless you are convinced beyond a reasonable doubt that the Government has met its burden of proof of establishing the facts of underreporting in this case for each year.

"Consider it separately and whether, if you do find that underreporting exists, was it done willfully with an intent to evade income tax responsibilities."

Neither counsel requested any corrections or additions to the charge.

After the jurors retired and had deliberated for some time, they asked the judge to "explain willfulness again." He did so, largely repeating the extended discussion he had previously given, including a reemphasis of the government's burden to establish intent. Again, neither counsel took exception.

On the following morning, the jury made its findings to the court on each question. In response to the clerk's query as to the answers to each of the interrogatories, the jury foreperson responded, "The answer is, yes, guilty."

Defendant's post-trial motions asserted errors in certain evidentiary rulings, but did not question the use of the special interrogatories. Supplemental motions were filed when trial counsel was replaced with another lawyer, raising the incompetence of trial counsel as "newly discovered evidence." Once again, no error in utilization of the interrogatories was alleged, nor was there any criticism of trial counsel with respect to that phase of the case. After a hearing on the competency issue, the district court dismissed the post-trial motions, finding no error in the evidentiary rulings and concluding that trial counsel had adequately represented defendant. ¹ Shortly before sentencing, defendant again changed lawyers, at that point retaining counsel who took this appeal. After a denial of post-trial motions, defendant was sentenced to a period of incarceration, followed by probation.

Defendant has raised two issues in this court. He contends first that defense counsel was unduly restricted in his cross-examination of a key witness, and second, that the use and form of the interrogatories constituted plain error which requires a new trial. To the latter issue defendant attaches the most importance, and hence we will address it first.

As a general proposition, special verdicts are generally disfavored in criminal cases, but there is no per se rule against them. We so held in cases within the past two years. United States v. Palmeri, 630 F.2d 192 (3d Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981); United States v. Frezzo Brothers, Inc., 602 F.2d 1123 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). Some of the antipathy toward special verdicts in criminal trials has its roots in the doctrine of "jury nullification," the power of a jury "to bring in a verdict in the teeth of both law and facts," a "technical right, if it can be called so, to decide against the law and the facts...." Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185 (1920).

Jury nullification has a unique place in the law and has been the subject of spirited debate for hundreds of years in both English and American law. See, e.g. Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939). In the famous case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), the justices conducted an exhaustive review of the authorities and the majority concluded that, although the trial judge may not direct a verdict of guilty, it is "the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them." Id. at 106, 15 S.Ct. at 294.

Even though Sparf resolved the controversy as to the duty of jurors in federal criminal trials, ² the power to acquit in derogation of that obligation remained-because there could be no punishment for such conduct. See Bushell's Case, Vaughan 135 (C.P.), 6 How.St.Tr. 999 (1670). Thus, Justice Holmes' comment in Horning that the jury could decide a case in the "teeth of both law and facts," made 25 years after the Sparf opinion, was simply a realistic appraisal of this still viable power. As the court in United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970), said:

"We recognize ... the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justifies the actions of the accused, or for any reason which appeals to their logic...