Farese v. United States

• Decision Date: 20 April 1970
• Docket Number: No. 25343.,25343.
• Citation: 428 F.2d 178
• Parties: Thomas Ralph FARESE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

428 F.2d 178 (1970)

Thomas Ralph FARESE, Appellant, v. UNITED STATES of America, Appellee.

No. 25343.

United States Court of Appeals, Fifth Circuit.

April 20, 1970.

Alfred Paul Farese, Everett, Mass., for appellant.

J. V. Eskenazi, Asst. U.S. Atty., Miami, Fla., for appellee.

Before GOLDBERG, DYER and CARSWELL, Circuit Judges.

CARSWELL, Circuit Judge:

In appellant's jury trial on a charge of transporting in interstate commerce a forged and fraudulently made security and for aiding and abetting in that offense, a composite exhibit consisting of an attache case containing, among other objects, some clean and dirty shirts, was introduced into evidence by the government. The relevancy of this exhibit to the totality of the evidence is scarcely debatable, and its admissibility as a composite exhibit was not objected to at the trial. The problem here which requires our reversal of appellant's conviction arises from the fact that $750.00 in cash of large denominations was discovered by the jury upon their examination of one of the freshly laundered shirts inside the attache case after they had retired to the jury room for consideration of the case.

Two questions now present themselves for determination. First, was error committed when money, the existence of which was unknown to the court, to the government, or to the defense, was discovered by the jurors in a shirt that had been introduced in a composite exhibit? And second, if this be error did it prejudice the appellant so as to require reversal and a new trial?

This requires an examination of some of the historical prerequisites of a fair trial. It is a fundamental principle that the government has the burden of establishing guilt solely on the basis of evidence produced in the courtroom and under circumstances assuring the accused all the safeguards of a fair trial. Trial jurors have no right to investigate or acquire information relating to the case outside of that which is presented to them in the course of the trial in accordance with established trial procedure. Indeed, Mr. Justice Holmes expressed this concept over sixty years ago in the following language:

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, * * *." Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).

The Sixth Amendment guarantees that the accused shall enjoy the right to a trial by an impartial jury and shall be confronted with the witnesses and evidence against him. Certainly the definition of impartiality is not a static concept, but can be defined only in relation to specific facts and circumstances. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). The most general interpretation of a fair trial is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts. Judicial control of the juror's knowledge of the case pursuant to the laws of evidence is fundamental to the prevention of bias and prejudice. Our rules of evidence are designed to exclude from consideration by the jurors those facts and objects which may tend to prejudice or confuse. Evidence presented under the exclusionary rules is subject to cross-examination and rebuttal. It is therefore necessary that all evidence developed against an accused "come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Turner v. Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965). Exposure to evidence through discovery of secreted material is not subject to these safeguards. In the case here, it cannot be said that appellant secured judicial protection of his constitutional rights when money, neither introduced nor properly received into evidence in open court, was discovered by the jurors in the confines of the jury room.

Having determined that error did occur, we now turn to a determination of whether that error prejudiced appellant so as to require reversal. Before applying the circumstances of this particular case to the issue of prejudice, it is well to reiterate the well established rule that

"an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was not prejudicial." McCandless v. United States, 298 U.S. 342, 347-348, 56 S.Ct. 764, 766, 80 L.Ed. 1205 (1935).

and that the courts will not speculate as to the amount of prejudice arising from information secured by a jury outside the courtroom.

"The right to trial by jury comprehends a fair determination of the guilt or innocence of the accused free from bias, passion, or prejudice. * * * And where error occurs which, within the range of a reasonable possibility, may have affected the verdict of a jury, appellant is not required to explore the minds of the jurors in an effort to prove that it did in fact influence their verdict." Braswell v. United States, 200 F.2d 597, 602 (5th Cir., 1952).

"So to hold would, as a practical matter, take from a defendant his right to a fair trial." Little v. United States, 73 F.2d 861, 866 (10th Cir., 1934).

Our courts have traditionally upheld the position that verdicts should be set aside where it is shown that the impartiality of jurors may have been affected or where tainted material has come before the jury. Appellant admits that it is impossible to ascertain the effect that the money had upon the minds of the jurors in reaching their verdict. It is just this situation which demands reversal. An analysis of prior cases pertaining to incidents where out-of-court evidence reached the jurors convinces us that appellant in the present case was prejudicially denied his right to a fair trial.

Seventy-six years ago the Supreme Court held it to be reversible error when the trial judge allowed an entire book to go into the jury room without sealing off the pages not admitted into evidence, even though it was not shown that any of the jurors had actually read the inadmissible pages. Bates v. Preble, 151 U. S. 149, 14 S.Ct. 277, 38 L.Ed 106 (1893).

In Little v. United States, 73 F.2d 861 (10th Cir., 1934), it was held to be reversible error for the trial judge to allow the court stenographer to go into the jury room and read the instructions to the jury, where the record failed affirmatively to disclose that no prejudice resulted.¹

After the jury had returned its verdict in the case of United States v. Dressler, 112 F.2d 972 (7th Cir., 1940), it was noticed that a fingerprint card of the defendant, which was unobjectionable to prove fingerprints, contained the accused's criminal history on the reverse side. This was held to be reversible error, as it was not possible to estimate what effect such material had on the jury.

United States v. Michener, 152 F.2d 880 (3rd Cir., 1945) concerned an incident where the trial judge admitted all of the accused's corporate records which were present in the courtroom, notwithstanding the fact that some of the records had neither been mentioned nor authenticated and related to contracts not in issue. The admission of the files en masse...