U.S. v. Dilg

• Decision Date: 14 March 1983
• Docket Number: Nos. 81-7803,81-7882,s. 81-7803
• Citation: 700 F.2d 620
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Robert DILG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 620

700 F.2d 620

UNITED STATES of America, Plaintiff-Appellee, v. John Robert DILG, Defendant-Appellant.

Nos. 81-7803, 81-7882.

United States Court of Appeals Eleventh Circuit.

March 14, 1983.

Thomas M. Haas, Mobile, Ala., for defendant-appellant.

D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellant John Robert Dilg was convicted of violations of 18 U.S.C. Secs. 371, 844(d) and 844(i): conspiracy; transporting explosives in interstate commerce with the intent to damage and destroy a building; attempting maliciously to destroy a building whose activity affected interstate commerce; and 26 U.S.C. Secs. 5861(d) and 5861(j): possession of an unregistered destructive device; and transporting in interstate commerce an unregistered destructive device.

On appeal, appellant challenges: (1) denial of a motion for a new trial in which the insanity defense could be raised; (2) admission of a tape recorded conversation to rebut an inference raised by defendant's proof when the tape was not disclosed prior to trial pursuant to a discovery order; (3) the trial judge's instruction on accomplice testimony; and (4) the trial judge's failure to give instructions on the presumption of innocence at the close of arguments when defense counsel objected to the failure and the only instruction on the presumption of innocence was given prior to the jury panel being selected or sworn.

We reach the merits of only the last of the issues raised because reversal of the conviction is required on the basis of that issue alone.

Facts

The basis for appellant's indictment and convictions on all five counts was an allegation that Dilg, an owner of two night clubs, one in Mobile and the other in Dothan, Alabama, hired the alleged co-conspirators to burn down a competitor's drinking establishment in Dothan and, when that failed, to plant and explode a bomb in that establishment. An unexploded bomb was discovered in the building, removed and detonated. Fingerprints of one of the alleged co-conspirators were found on the device. Testimony of the alleged co-conspirators connected appellant to the conspiracy. Appellant testified at trial, denying his involvement. During the course of the trial the Assistant U.S. Attorney revealed for the first time that he possessed evidence that the defendant exhibited paranoid behavior, providing the basis for a possible insanity defense. The trial judge ruled that the trial should continue, subject to later proof that defendant had a plausible insanity claim. Four months after the trial and conviction of Dilg, a motion for a new trial was made by his attorney on the basis that there was evidence that Dilg had been insane at the time the act was committed. The motion was denied and this appeal ensued.

Instructions on the Presumption of Innocence

Prior to commencement of the trial of appellant, a jury venire consisting of a sufficient number of persons from which to select juries for two criminal trials, Dilg's and another which was to follow Dilg's in the same week, was brought into the courtroom. Before the jury for either case had been selected the judge gave preliminary instructions to the entire venire. At the beginning of those instructions the judge said:

Now, you will hear all of the evidence and determine the facts from that evidence in the light of the law which it is my duty to tell you about before you start deliberating the case. So, don't try to decide the case until after all of the evidence is before you and until I have instructed you as to the law that binds us all. You will be, if you are selected, sworn to base your verdict upon the evidence that comes to you from the witness stand here and in the light of the law as I state it to you.

Record at 3-4. The court continued:

The indictment is the formal charge against a Defendant. It is not evidence of anything. It is simply a statement of a charge or one or more charges against a defendant, and the defendant is presumed to be innocent until you decide in the final analysis of all of the facts as you find them to be in the light of the law as I give it to you that he is guilty. He is innocent until that time.

Record at 4. The court then proceeded to give the instruction on the government's burden of proving the case beyond a reasonable doubt.

After these general instructions, the two juries were selected. The one for the Dilg trial remained in the courtroom and the second jury was excused until the time of that trial. The court, prior to swearing in the jurors, gave more preliminary instructions in regard to the crime of conspiracy and other offenses charged in the indictment. No further mention of the presumption of innocence was made.

At the close of the three day trial, immediately subsequent to the delivery of closing arguments by counsel, the court made its final charge to the jury, the charge to which he had referred in the preliminary instructions and for which the jury had been admonished to wait before deciding the guilt or innocence of defendant. After reviewing the elements of the crimes and definitions of certain critical terms, the court referred again to the government's burden of proof: "Of course, the burden is on the Government, and it is the duty of the Government to prove by the evidence beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the Defendant is guilty. And unless the Government has done that in this case, it is the duty of the Jury to render a verdict of not guilty." Record at 494.

The court concluded the instructions with references to the weighing of testimony, his duty to sentence, accomplice testimony, a review of the definition of possession and the need for a unanimous verdict. The jury was then excused and the judge asked the attorneys if they were satisfied with the instructions. Dilg's counsel, Mr. Haas, responded as follows:

Mr. Haas: I would ask that you charge this Jury on reasonable doubt and the burden of proof, the presumption of innocence here. You may have said something about it earlier--

The Court: Oh, I did. I charged at length on it in the opening because I felt that they needed that at the inception of this case.

Mr. Haas: Well, I am not quarreling. I am sure if Your Honor said you did, you did. I don't personally remember it right now, but I am sure you did.

What I am getting at is, that I always feel like that if the Jury is charged on those basic fundamental principles of law just before they go out, that it is certainly better. And so that they would understand, when all the evidence is in, that that is still true and that the presumption of innocence is a fact, and that what the burden is in this case as contrasted with some case they may have tried in civil court.

The Court: Well, I gave each of the charges you asked for, and one or two of those touched on the subjects, additionally to what I did at the beginning. So, I won't do that.

Record at 501-02.

Given the above dialogue, there is no question but that counsel adequately objected to the failure to instruct on the presumption of innocence and has reserved that objection for appeal. See United States v. Nelson, 498 F.2d 1247, 1249 (5th Cir.1974). ¹ Cf. United States v. Fernandez, 496 F.2d 1294, 1297 (5th Cir.1974) (where defendant fails to object to failure to instruct or to request that a presumption of innocence charge be given, under Fed.R.Crim.P. 52(b) failure to instruct must rise to the level of plain error before reversal is warranted). This the government does not dispute.

In his brief appellant argued that he was deprived of a fair trial because the court failed to instruct at the close of the evidence on burden of proof, reasonable doubt and presumption of innocence. At oral argument appellant's contention apparently was narrowed to the absence of an instruction on the presumption of innocence and reasonable doubt. We will confine our discussion to the issue raised by failure to instruct on the presumption of innocence at the close of the evidence as our disposition of the case is mandated by resolution of that issue alone.

The government argues that any error from the failure to charge on the presumption of innocence at the close of the evidence and after closing arguments was not reversible error. It contends that because the judge gave the presumption of innocence instruction before the voir dire; because the trial, three days in length, in their view was relatively short; because defense counsel referred to the presumption of innocence instruction during closing arguments; and because the judge in his closing instructions gave the instructions on burden of proof and allegedly referred back to his preliminary instructions, the error in not instructing at the close of the evidence was not reversible. The government submits that the jury knew that the presumption of innocence prevailed.

A debate over what the jurors in this case did or did not understand as they retired to the jury room will not resolve the issue before us. Rather a review of the applicable law in this circuit on the appropriate timing of instructions is required to decide whether the error committed warrants reversal.

Preliminarily we look to Fed.R.Crim.P. 30 governing "Instructions." The rule mandates that "the court shall instruct the jury after the arguments are completed." In the instant case, the trial judge gave some instructions after the closing arguments but not the instruction on presumption of innocence. Rule 30 makes no exception to the requirement that jury instructions be given after closing arguments and no exception can be inferred, particularly not for the critical instruction here at issue. See Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct....