U.S. v. Chiantese, 75-3534
| Decision Date | 28 January 1977 |
| Docket Number | No. 75-3534,75-3534 |
| Citation | 546 F.2d 135 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph CHIANTESE and John Joseph Cerrella, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George D. Gold, Miami, Fla., James J. Hogan, Miami Beach, Fla., for defendants-appellants.
Robert W. Rust, U. S. Atty., Miami, Fla., Ann T. Wallace, George S. Kopp, Atty., Dept. of Justice, Washington, D. C., Gary L. Betz, Special Atty., Dept. of Justice, Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.
Appellants, defendants below, Cerrella and Chiantese were found guilty, after a jury trial, of violating 18 U.S.C. §§ 2 1 and 1951, 2 interference with interstate commerce by extortion. Cerrella was sentenced to 16 years and Chiantese to 13 years imprisonment.
The case arose out of competition between two valet parking services, "Kings", which was owned by Mark Parnass, the victim of the attempted extortion and chief witness for the prosecution, and "Sunshine", which was owned by Cerrella and operated by Chiantese.
Parnass testified to a series of meetings between the three of them, the end result of which was an ultimatum that Parnass could either give them a third of his business or quit entirely. Shortly thereafter Parnass reported the events to the FBI. He was wired for sound and subsequently taped a conversation with the defendants. They were arrested and charged in a two count indictment, the second count of which was dismissed prior to trial.
Appellants assert that the trial court erred when it refused to conduct an investigation into the conduct of several jurors who were seen talking and nodding together during the questioning of a government witness by Cerrella's attorney. A bystander who overheard their remarks reported to Chiantese's counsel that one juror, referring to Cerrella's attorney, had stated, and, "He's a pain in the ." When this was reported to the Judge he declined to question the members of the panel, stating that the incident was not analogous to a situation in which a juror has been reading an inflammatory article. The Court noted that the reported conversation was not a discussion of the case and that "jurors obviously form impressions of counsel as the trial (proceeds)."
The second point of error urged is the Court's instruction in which the jurors were told that:
As a general rule it is reasonable to infer that a person ordinarily intends all the natural and probable consequences of acts knowingly done or knowingly omitted. So, unless the evidence in the case leads the jury to a different or contrary conclusion, the jury may draw the inference and find that the accused intended all the natural and probable consequences which one, standing in like circumstances and possessing like knowledge, should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused. (Emphasis added.)
Sufficient objection was made to the charge when it was given to preserve the question for appeal. 3
This charge has become known as the Mann instruction. 4 Probably no other jury instruction has received so much attention and repeated condemnation in this Circuit. Despite our emphatic disapproval in a series of cases, this serpent rears its ugly head once again. This charge is so infamous that in the standard text on federal jury instructions its use is referred to as an "invitation to reversible error." 5
We accept that invitation as the only way for our message to get through.
Mann Oh Mann
When Nathan Mann was prosecuted for tax evasion the trial court stated, "so unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences (of his act)." Even though no objection was made by counsel at the time the charge was given, we reversed the lower court, finding the charge to be plainly erroneous. Mann, supra. We based our holding on the shifting of the burden of proof to the defendant, the inconsistency of that charge with others given, and the seeming waiver of a finding of specific intent in a crime for which such intent is required.
The next year in Helms v. United States, 5 Cir. 1964, 340 F.2d 15, we did not find plain error when the Mann charge had been given without objection. But in Helms there was no need for finding specific intent, the defendant's objective conduct was the critical issue. Apparently trial judges surmised that we had carved an exception into Mann where a showing of subjective intent was not required.
In 1971 we met Mann again in United States v. Jenkins, 5 Cir. 1971, 442 F.2d 429, where avoiding reversal, we perhaps diluted it by holding that the trial court cured its mistake by following the objectionable charge with one which avoided the vice. Accord, United States v. Beasley, 5 Cir. 1975, 519 F.2d 233; United States v. DeSimone, 5 Cir. 1971, 452 F.2d 554, cert. denied, 406 U.S. 959, 92 S.Ct. 2067, 32 L.Ed.2d 346 (1972).
In United States v. Wilkinson, 5 Cir. 1972, 460 F.2d 725, we applied an all facts and circumstances test, looking to the overall effect of the charge rather than isolating single phrases and again did not feel compelled to reverse the conviction.
Just last year in United States v. Durham, 5 Cir. 1975, 512 F.2d 1281, we allowed the Mann charge to be cured by proper instructions even though they were remotely placed in relation to that charge. Thus we shifted even further from our Jenkins decision where the cure had to immediately follow the disease.
Most recently in United States v. Duke, 5 Cir. 1976, 527 F.2d 386, we looked to curative instructions in reliance on Jenkins, Wilkinson and Durham to allow still another Mann charge to be sustained.
While it is interesting to recognize that ever since Mann we have created exception, allowed dilutions and even allowed miracle cures to avoid reversing a case solely on the giving of a Mann charge, at the same time we admonished the lower courts repeatedly to stop using this charge. In Durham, we noted our emphatic disapproval of the Mann charge and even cited the lower court to a charge given in Wilkinson which would be acceptable. Durham at 1289. In Duke, we pondered why trial judges continue to maintain the charge in their repertoire. "We cannot too strongly admonish them to discontinue its use immediately." Duke at 393. Again we cited them to the acceptable charge suggested in Wilkinson.
Thus we have preached, and we assumed that the district courts have read our earlier opinions, but as with the boy who yelled wolf too often, our warnings have gone unheeded. We have made efforts to drown, destroy and inter the Blue charge 6 with similar lack of success. After all of this preaching and admonitions we conclude that this case should be the vehicle to bury the condemned, prejudicial charge once and for all. And the way to do it is to reverse the case without adding to the confusion, or worse, an invitation to trial judges to flirt with its use in the hope that we will find some extenuation in the use accompanied by some high sounding, but unheeded, pontificial platitudes that surely never again will it be employed. Until Mann is buried by the Court en banc it is very much alive. It is not the word is not to be used, and no one, prosecutor or judge can hope to be resuscitated.
Jury Misconduct
The Supreme Court has said it is imperative Mattox v. United States, 1892, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921. Thus in subsequent cases new trials were granted where it was shown that a bailiff made prejudicial remarks to a juror, Parker v. Gladden, 1966, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; where newspaper accounts of the trial were seen by jurors, United States v. Kum Seng Seo, 3 Cir. 1962, 300 F.2d 623; and where a juror had lunch with one of the witnesses during the trial, United States v. Marine, D.C.Del.1949, 84 F.Supp. 785.
This Circuit has addressed the issue of possible jury misconduct numerous times. We have remanded where it was claimed that in their deliberations the members of the jury discussed newspaper accounts of the defendant's jailbreak, and recapture. There we held that the lower court should first determine whether the discussion took place, if so, what prejudice resulted, and unless a finding of no prejudice was made, a new trial should be...
To continue reading
Request your trial
-
U.S. v. Partin
...to other portions of the instructions to find that the erroneous Mann charge was harmless or had been cured. See United States v. Chiantese, 546 F.2d 135, 136-37 (5th Cir. 1977), and cases discussed therein.As we have indicated, Hall bars us from relying on this series of cases after Mann f......
-
U.S. v. Chiantese, 75-3534
...illustrated an erosion rather than reinforcement of Mann. Two days later, the case at the en banc bar was published. United States v. Chiantese, 546 F.2d 135 (5 Cir. 1977). The holding was While it is interesting to recognize that ever since Mann we have created exception, allowed dilutions......
-
United States v. Cerrella
...to defendant's motion to disqualify. POST-SENTENCING MATTERS The defendants' convictions were reversed on appeal, United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977), but rehearing en banc was granted; the full panel remanded to the original three-judge panel after vacating part of its......
-
U.S. v. Chiantese
...and Cerrella 1 because the district court had employed what has come to be known as the "Mann instruction." 2 United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977). The trial judge incorporated the following version of the Mann charge in his final instructions to the As a general rule it......