Fogarty v. United States

• Decision Date: 03 April 1959
• Docket Number: No. 17356.,17356.
• Citation: 263 F.2d 201
• Parties: Lawrence E. FOGARTY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 201 (1959)

Lawrence E. FOGARTY, Appellant, v. UNITED STATES of America, Appellee.

No. 17356.

United States Court of Appeals Fifth Circuit.

February 12, 1959.

Rehearing Denied April 3, 1959.

C. Anthony Friloux, Jr., Houston, Tex., for appellant.

Newton B. Schwartz, Asst. U. S. Atty., William B. Butler, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Appellant Fogarty and John Heaslet were indicted and convicted of conspiring to misapply the funds of a bank of which Fogarty was vice president, and on four substantive counts charging specific misapplication of such funds. Heaslet was an automobile dealer, and Fogarty's bank handled a large volume of his notes, liens and deferred payment contracts. The misapplication of funds and the false entries on the books of the bank related to the purchase by the bank of these written instruments and to the opening of special accounts in the bank for the alleged joint benefit of Fogarty and Heaslet.

Appellant does not challenge the sufficiency of the evidence; in fact, the salient facts are set forth in a stipulation of the parties and they establish appellant's guilt beyond question. Under these circumstances a further recitation of the facts is not required except as reference is made to them in discussing the errors assigned.

Appellant argues five points in his efforts to show that the court below committed reversible error in his trial.¹ Points I, III and IV deal with the court's charge concerning appellant's failure to testify,² and the argument of government counsel, which he contends amounts to comment upon the fact that he did not testify.³ Appellant neither objected to the quoted charge nor requested an instruction relating to his failure to testify as required by Rule 30, Fed.R.Crim.Proc., 18 U.S.C.A. This portion of the charge was not mentioned when the court called upon counsel, in the absence of the jury, to state their objections to the charge. Certainly the charge as given does not constitute plain error which we will notice under Rule 52(b). Isgate v. United States, 5 Cir., 1949, 174 F.2d 437; and Ehrlich v. United States, 5 Cir., 1956, 238 F.2d 481. This is especially true where there was a complete failure to request a charge on the matter complained of. Risinger v. United States, 5 Cir., 1956, 236 F.2d 96.⁴

We think that appellant's contention that the attorney for the Government adverted to his failure to testify while making his closing argument to the jury is without merit. One would have to strain hard to invest the language quoted supra, footnote 3, with such a meaning. Here again no objection was made to the argument when made. It is not sufficient to move for a mistrial after all the arguments are in. The purpose of requiring objection to be made while the argument is in progress is to give counsel making the argument a chance to withdraw or explain it and the court a chance to exclude it from the jury's consideration. The Rules requiring prompt objection and the assignment of reasons therefor are rules of reason and their observance should not be lightly disregarded. Cf. Paoli v. United States, 1956, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; United States v. Schuermann, 8 Cir., 1949, 174 F.2d 397, certiorari denied 338 U.S. 831, 70 S.Ct. 69, 94 L.Ed. 505; and Corcoran v. United States, 5 Cir., 1956, 229 F.2d 295. We sit in judgment upon the actions of the trial court which were challenged by proper objections and cannot, except under the plain error doctrine of Rule 52(b), which certainly does not apply here, search for errors which were not presented to the trial court. Cf. De Fonce Const. Co. v. City of Miami, 5 Cir., 1958, 256 F.2d 425, 428, and cases listed in footnote 2 of that decision.

Where it is shown that injustice probably resulted to a person charged with crime, or where the evidence of guilt is not strong, we have not hesitated to condemn improper argument and to reverse convictions even where exception is not duly taken. Steele v. United States, 222 F.2d 628; Nalls v. United States, 1956, 240 F.2d 707; Ginsberg v. United States, 1958, 257 F.2d 950; and Handford v. United States, 1957, 249 F.2d 295; and cf. same case, 1958, 260 F.2d 890. But we are not dealing with such a case here, where the guilt of appellant is perfectly plain. Moreover, a reading of the entire argument will demonstrate that the content was fair and unexceptionable with respect to each of the points presented in appellant's argument.

At the conclusion of the court's charge appellant, when asked if there were any objections, excepted to the court's charge in quite general terms.⁵ The objection wholly fails to state distinctly the matter to which appellant was objecting and the grounds of his objection, as required by Rule 30.⁶ Appellant argues in the brief that certain comments by the court favorable to the co-defendant Heaslet had the necessary effect of pointing the finger of guilt at Fogarty. We set forth in the margin the various portions of the charge quoted in appellant's brief, to which we have added sufficient of the context to make the excerpts understandable.⁷

The quoted portion of the charge is from separated paragraphs taken from a charge which was 22 pages long. The court covered the whole field of the accusations as they related to appellant and to Heaslet, jointly indicted and jointly tried, and both charged with conspiracy. Since appellant was an officer of the bank and Heaslet had no connection with the bank, the ingredients of the crime charged in the substantive counts were quite different as related to the two. The court charged at length what it took to constitute a conspiracy and explained the relationship of the overt acts thereto. It read to the jury the statutes involved, and pointed out that Heaslet, not being a bank officer, could not, acting alone, be guilty of the substantive counts.

The court was called upon to bring into proper focus for the jury some of the phases of the case which had been developed in the evidence and referred to in the arguments. For instance, it pointed out that it was not necessary for conviction that the bank lose any money by the misapplication of the funds, or that Heaslet be guilty of any wrongdoing in his dealings with his customers. It charged also that Heaslet could be guilty of making false entries only if he and appellant had an agreement that such entries would be made. The isolated portions of the charge upon which appellant relies, therefore, have a less damaging appearance when put back into the context in which they were used.

In any event, if what the court said should be construed as being favorable to Heaslet, it could not be construed as being necessarily unfavorable to appellant. Since the conspiracy between them lay at the base of all of the charges, the court could not find appellant guilty and turn Heaslet loose (except, of course, as to the charges embraced in the substantive counts). The fact that the jury found both of them guilty indicates that the jury did not so construe the court's charge and that, if what the court said was error and if it had been properly objected to, it was harmless error.

This is not to say that we approve of the action of the trial court in commenting favorably upon Heaslet's testimony. Where, as here, one of the accused takes the witness stand and, in the effort to defend himself, tends to fasten guilt upon the other who does not testify, we think it the better practice for the trial judge to refrain from any statement or question from which the jury might infer that he credits one or discredits the other. We have steadfastly held in effect that "a judge must not only be impartial and disinterested, but must also appear so." Blumberg v. United States, 1955, 222 F.2d 496, 501. And see Gomila v. United States, 1944, 146 F.2d 372; Hunter v. United States, 1932, 62 F.2d 217; Adler v. United States, 1910, 182 F. 464. And cf. Quercia v. United States, 289 U.S. 466, 472, 53 S.Ct. 698, 77 L.Ed. 1321.

The final error argued by appellant is his claim that the court wrongfully permitted Heaslet to testify as to what Fogarty had stated to him concerning certain entries appellant had caused to be made upon the books of his bank. Appellant had given Heaslet a written statement to assist the latter in a civil litigation and the statement signed by Fogarty was offered in evidence. The court sustained appellant's objection to such an offer, but permitted Heaslet, over objection, to testify that appellant had made certain statements in his presence concerning pertinent entries upon the bank's books. We think the evidence was clearly admissible. It is always proper to prove by any competent witness a declaration against interest made by any party to litigation.

The principle...