McBride v. United States

• Decision Date: 31 January 1963
• Docket Number: No. 7147.,7147.
• Citation: 314 F.2d 75
• Parties: Jack D. McBRIDE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.2d 75 (1963)

Jack D. McBRIDE, Appellant, v. UNITED STATES of America, Appellee.

No. 7147.

United States Court of Appeals Tenth Circuit.

January 31, 1963.

Sam W. Moore, Oklahoma City, Okl., for appellant.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

SETH, Circuit Judge.

The appellant was tried by a jury and convicted on one count of an indictment charging conspiracy to use the mails to defraud and to obtain money by false pretenses. The scheme described in the indictment centered about a corporation which was owned by one of the three individuals with whom appellant was charged in the conspiracy count. The indictment described the plan as one where the corporation would mail pamphlets and similar material to individuals and small corporations generally throughout the southwestern states offering to obtain loans for them. Among this material would be a reply card which would be returned by mail if the addressee was interested. Upon receipt of the card the sender would be advised that a salesman would call and present a contract for the services of the corporation. Representations were made that loans could and would be obtained for the individuals or small businesses from various financial and loaning institutions. The salesman would obtain from the prospect the prepayment of a portion of the fees to be charged by the corporation for procuring the loan. The indictment further alleged that the scheme was fraudulent and that the corporation and the individuals made no bona fide attempt to secure loans for the individuals or corporations from whom fees were received. The conspiracy charge, which is the only one upon which the appellant was tried, describes him as a salesman. As such he contacted the prospects, received from them checks or money as fees to the corporation, and was paid a commission on these amounts.

The principal defense made by the appellant during the course of trial was that he was only an employee; that he was only a salesman instructed to contact designated persons or firms, and that he did not know any fraudulent intention or purpose for which the corporation was organized, nor such intention or lack of good faith of the individual who owned and directed the corporation nor of the others concerned.

The appellant asserts that the trial court committed error as to several matters not here considered and most of which are within the discretion of the trial court. In addition he asserts that the trial judge committed error in making certain comments to the jury at the close of the case, and it is this point with which we are concerned in this opinion.

The trial judge at the conclusion of his formal instructions to the jury, during which he told them several times that they were the sole judges of the facts, the weight of the evidence, and the credibility of the witnesses, made the following remarks:

"Now at this point I should like to say, as the third member or thirteenth member of the jury, that this is a rather simple case.

"The facts are clear in my mind that this little corporation was organized but for one purpose, and that is to use the mails and to defraud people, little people, out of money.

"I believe from the evidence that Mr. Rogers had no intention at any time to be in good faith in his work, in the organization of the company, the use of the mails, sending salesmen out to go out and prey upon people who were in desperate need of some financial help.

"Now we get down to later; this accused was employed or engaged. I can\'t help but believe that he knew of all the lack of good faith in the business that he joined up with. I can\'t help but believe that he went about Texas and Louisiana and Mississippi, he knew that he was doing wrong. He is bound to have known it.

"Now I don\'t know. He says that he did it in good faith and that he was employed and that he worked as an employee, that he reported these things in order that somebody might, the company might make these loans. I can\'t help but believe that the accused here knew well when he started out that he was going to make a commission and whether or not he ever saw these poor people again or not it made little or no difference to him.

"My views are that it\'s pretty serious business when we permit the people to use our mails and take advantage of our people.

"Now what I have said to you is simply my views and you must disregard it. I have nothing to say except that I can make remarks as I have; but you must disregard what I have said about this case.

"You are the sole jurors in this case. You must pass upon this evidence yourself, so I am asking you to disregard what I have said to you with reference to my views. Disregard it completely. Do not consider that I have ever said anything to you."

From the quotation it will be noted that the trial judge first stated that the facts were clear in his mind that the corporation was organized to use the mails to defraud, and that the individual who owned the corporation had no intention of being in good faith in operating it. Then referring to the appellant particularly, the trial judge stated he could not help but believe that the appellant knew of the lack of good faith of the organization that he had joined, and that he could not help but believe that the appellant knew that he was doing wrong and that "he is bound to have known it." The trial judge then referred particularly to the theory of the defense, and again said that he can't help but believe that the appellant knew from the start that he was going to make a commission whether or not he saw the individuals again and it did not make any difference to him whether he saw them again or not. The trial judge then referred to the serious nature of the charges. The attorney for the appellant objected to the remarks of the court and persists in his objection on this appeal.

The court's remarks are the judge's conclusions based upon his views of the evidence and the testimony presented during the course of the trial. There is no comment on the testimony of any particular witness nor is there any summation or review of the testimony given by any witness nor on any particular point. The comments must instead be taken as a statement of the court that the accused was guilty, and this was not warranted under the circumstances. The comments when considered as a whole coupled with the repeated expression of the judge that "he can't help but believe," give the statement of guilt a definite, unqualified and positive character. Thus we have before us a statement of this nature following the formal instructions to the jury which contained several admonitions to the jury that th...