Barry v. United States

• Decision Date: 12 January 1961
• Docket Number: 15765.,No. 15763,15763
• Citation: 287 F.2d 340,109 US App. DC 301
• Parties: Bernard J. BARRY, Appellant, v. UNITED STATES of America, Appellee. Bernard J. BARRY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 301, 287 F.2d 340 (1961)

Bernard J. BARRY, Appellant, v. UNITED STATES of America, Appellee.

Bernard J. BARRY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15763, 15765.

United States Court of Appeals District of Columbia Circuit.

Argued November 7, 1960.

Decided January 12, 1961.

Petition for Rehearing Denied February 1, 1961.

Mr. Alexander Boskoff, Washington, D. C., with whom Mr. William C. Wise, Washington, D. C., (both appointed by this court) was on the brief, for appellant.

Mr. Nathan J. Paulson, Asst. U. S. Atty. and Messrs. Oliver Gasch, U. S. Atty. and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance in No. 15765.

Before Mr. Justice BURTON, retired,^* and FAHY and BASTIAN, Circuit Judges.

Petition for Rehearing in No. 15763 Denied February 1, 1961.

FAHY, Circuit Judge.

No. 15765. Appellant was convicted and sentenced to serve from twenty months to five years in the penitentiary for violating 18 U.S.C. § 2314, the pertinent part of which is set forth in the margin.¹ The indictment charged that appellant,

"with unlawful and fraudulent intent, did transport and cause to be transported in interstate commerce from the State of Maryland to the District of Columbia, a certain falsely made and forged security, that is, a bank check, knowing the same to be falsely made and forged."

An integral part of this particular offense is that the accused had knowledge that the check was falsely made and forged. In submitting the case to the jury the District Judge failed to make this clear. He first instructed the jury that appellant was charged with the crime of distributing a falsely made and forged security in interstate commerce, omitting reference to the essential element of knowledge as to the false and forged character of the check. The court then advised the jury that the specific charge was that appellant had presented a forged check knowing it to be forged, omitting that the accused was charged with transporting the check in interstate commerce with such knowledge. Later the court quoted the pertinent provisions of the statute as follows, "Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited," shall be punished as prescribed by the statute. The court immediately followed this by enumerating and explaining "the elements of the offense that the government must establish," to use the court's own language. These elements were stated to be, first, that a forged security was involved; second, that the defendant caused the forged security to be transported in interstate commerce; and third, that the defendant acted with an unlawful and fraudulent intent. Entirely omitted from this crucial portion of the instructions was advice to the jury that the government must also establish knowledge on the part of the defendant that the check was falsely made and forged.

Counsel for the accused in neither the District Court nor in this court made any point of the omission. But the responsibility of instructing the jury upon the essential elements of a crime rests upon the court. Failure to meet this special responsibility of the court itself need not be overlooked by an appellate court because overlooked by counsel.

"It is true that no exception was taken to the trial court\'s charge. Normally we would under those circumstances not take note of the error. See Johnson v. United States, 318 U.S. 189, 200 63 S.Ct. 549, 87 L.Ed. 704. But there are exceptions to that rule. United States v. Atkinson, 297 U.S. 157, 160 56 S. Ct. 391, 80 L.Ed. 555; Clyatt v. United States, 197 U.S. 207, 221-222 25 S.Ct. 429, 49 L.Ed. 726. And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed."

Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495. (Opinion of Mr. Justice Douglas, in which Mr. Chief Justice Stone and Justices Black and Reed concurred. The other opinions in the case did not question the principle above stated but dealt with other features of the case.) And see McQuaid v. United States, 90 U.S. App.D.C. 59, 193 F.2d 696; George v. United States, 75 U.S.App.D.C. 197, 125 F.2d 559, and Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522. And see, also, as to our authority to notice plain error affecting substantial rights, although not brought to our attention by the parties, Fed.R.Crim.P. 52(b), 18 U.S.C.A.; Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632, and cases there cited.

The evidence of knowledge that the check was falsely made and forged was not strong. It was almost entirely circumstantial and not easily pieced together. While sufficient to create an issue for the jury, we think its lack of clarity enhanced the importance of awareness by the jury that knowledge at the time of transportation must be established beyond a reasonable doubt. Failure to guide the jury in this respect may well have caused them to omit consideration of this branch of the case. We are not in a position to say, in other words, that the verdict indicates that the jury found the evidence bearing upon knowledge established this essential element of the crime. The judgment accordingly will be reversed...