Pina v. United States

• Decision Date: 23 January 1948
• Docket Number: No. 11541.,11541.
• Citation: 165 F.2d 890
• Parties: PINA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

165 F.2d 890 (1948)

PINA v. UNITED STATES.

No. 11541.

Circuit Court of Appeals, Ninth Circuit.

January 23, 1948.

Arthur B. Knight, of Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., and Ernest A. Tolin, Chief Asst., Norman W. Neukom, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before GARRECHT, DENMAN and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

The appellant was indicted on the charge of having uttered and published as true, and having caused to be uttered and published as true, the endorsement of the payee of a United States Treasurer's check for $100, knowing that such writing was "false, forged and counterfeited", and "with intent to defraud the United States."

The evidence showed that the check, payable to Felix T. Soto, was cashed at a payroll-cashing agency, and that the appellant received part of the proceeds. Soto testified that he did not endorse the check, which was for mustering out pay.

One of the appellee's witnesses was the confessed accomplice of the appellant. The accomplice testified that the appellant suggested that the accomplice cash the check; that the appellant drove the accomplice to a place where payroll checks were cashed and waited while the accomplice went in and cashed the check; and that the appellant then received part of the proceeds.

The appellant's only witness was an eighteen-year-old girl who testified that she and the appellant had lived together as man and wife for about three years. She stated that, at the request of the accomplice, she "signed" the check.

After the argument to the jury, but before the court gave its instructions, counsel for the appellant stated to the court that counsel had learned that the accomplice had been put on probation, and that such fact was one "that should be considered by the jury in weighing his testimony." The appellant's counsel accordingly moved to reopen the case to produce evidence to that effect. That motion was denied.

The court likewise refused to give an instruction to the jury that contained the statement that the jury should consider the possible hope of reduction in punishment as a consideration "that may have motivated the alleged accomplice in his testimony".

From a judgment of conviction, the present appeal has been taken.

The appellant presents the following questions for determination by this Court:

1. Did the refusal of the trial court to give the appellant's requested instructions, and the denial of the appellant's motion to reopen the case to show that the alleged accomplice had been placed on probation, constitute prejudicial error?

2. Was there sufficient evidence of intent to defraud the United States to sustain the conviction?

We will consider each question in the order given.

1. According to counsel's own statement in the court below, the "alleged accomplice" had been placed on probation at the time that he testified. It is therefore difficult to understand how he could entertain a "possible hope" of reduction in punishment, when in fact, according to counsel's own assertion, the original plan to send the accomplice to a penal institution had already been changed, and he had been granted probation instead. How a person can hope for a benefit that he has already received is a feat of mental gymnastics that counsel does not attempt to explain.

Be that as it may, in any event, as a matter of law, the appellant was entitled to neither a reopening of the case nor to the instruction that he requested.

This court has held that refusal to give an instruction regarding the credibility of an accomplice is not reversible error. In Diggs v. United States, 9 Cir., 220 F. 545, 552, 553, Judge Gilbert said:

"First. A refusal to instruct as to the value of the testimony of an accomplice is not error for which a judgment should be reversed. * * * And it is believed that no court, state or federal, has held that it is reversible error to refuse to caution the jury to scrutinize with care the testimony of an accomplice. * * *

"In the present case the court instructed the jury that the evidence must be such as to satisfy their minds beyond a reasonable doubt and to a moral certainty, and said that they should take into consideration the character and conduct of each witness, his relation to the controversy and to the parties, his expressed or apparent bias or partiality, the reasonableness or unreasonableness of the statements he makes, and all other elements which tend to throw light upon his credibility."

In affirming the judgment of this court in the Diggs case, supra, the Supreme Court, in 242 U.S. 470, 495, 37 S.Ct. 192, 198, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas.1917B, 1168, used the following language: "It is urged as a further ground of reversal of the judgments below that the trial court did not instruct the jury that the testimony of the two girls was that of accomplices, and to be received with great caution and believed only when corroborated by other testimony adduced in the case. We agree with the circuit court of appeals that the requests in the form made should not have been given. In Holmgren v. United States, 217 U.S. 509, 30 S.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778, this court refused to reverse a judgment for failure to give an instruction of this general character, while saying that it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them." Authorities cited. Emphasis supplied.

This doctrine has been followed in other circuits. Referring to the caution against the testimony of accomplices, Judge Learned Hand, in United States v. Becker, 2 Cir., 62 F.2d 1007, 1009, said: "The warning is never an absolute necessity. It is usually desirable to give it; in close cases it may turn the scale; but it is at most merely a part of the general conduct of the trial, over which the judge's powers are discretionary, like his control over cross-examination, or his comments on the evidence. If he thinks it unnecessary — at least when, as here, the guilt is plain — he may properly refuse to give it. Such we understand to be the upshot of the decisions. Many cases cited."¹

The same rule has been adopted "even in cases where the confederate appears for the prosecution motivated by hope of immunity". Weaver v. United States, 8 Cir., 111 F.2d 603, 608. Cf. Wellman v. United States, 6 Cir., 297 F. 925, 933, 934.

In the instant case, however, the trial court did give an instruction relative to accomplices: "An accomplice is one who knowingly and voluntarily and with common intent with another person, unites with such person in the commission of an offense. By reason of their participation in the alleged criminal act, accomplices do not become incompetent witnesses. The jury has a right to consider the testimony of an accomplice, keeping in mind, however, that such testimony is to be weighed and scrutinized with great care, and that, if it is not corroborated by other competent evidence, it should not be relied upon unless, notwithstanding the fact that it stands alone, it produces in the minds of the jury a full and positive conviction of its truth. The testimony of an accomplice, if believed by you, may be sufficient to support a verdict of guilty, even though such testimony is not corroborated."

In another part of his charge, the learned judge below thus instructed the jury as to credibility in general: "You should carefully scrutinize the testimony given, and in so doing consider all of the circumstances under which any witness has testified, his demeanor, his manner while on the stand, his intelligence, the relations which he bears to the Government or the defendant, the manner in which he might be affected by the verdict and the extent to which he is contradicted or corroborated by other evidence, if at all, and every matter that tends reasonably to shed light upon his or her credibility." Emphasis supplied.

Taken together, these instructions were sufficient, and the failure to give the one asked for by the appellant was not reversible error. Indeed, instructions substantially the same as those given in the instant case have been approved in this and other circuits.²

Finally, it is significant that in his reply brief, the appellant does not press this point, but concedes that "the argument on the question of whether it was prejudicial error for the trial court to refuse to give defendant's requested jury instruction No. 3 and to deny defendant's motion to reopen the case is clearly addressed to the discretion of this court and will not be further argued in this Reply Brief."

Exercising our admitted discretion in this matter, and after a careful examination of the record, we hold that the court below did not commit reversible error in refusing to give the desired instruction or in declining to reopen the case.

2. We turn now to the question of whether or not there was sufficient evidence of intent to defraud the United States to sustain the judgment of conviction.

The statute upon which the indictment in this case was based is 18 U.S.C.A. § 73, which reads as follows: "Whoever shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly aid, or assist in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or whoever shall utter or publish as true, or cause to be uttered or published as true, any such false, forged, altered,...