U.S. v. Frady

• Decision Date: 22 October 1980
• Docket Number: No. 79-2356,79-2356
• Citation: 636 F.2d 506,204 U.S.App.D.C. 234
• Parties: UNITED STATES, Appellee, v. Joseph C. FRADY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 506

636 F.2d 506

204 U.S.App.D.C. 234

UNITED STATES, Appellee, v. Joseph C. FRADY, Appellant.

No. 79-2356.

United States Court of Appeals, District of Columbia Circuit.

Argued June 13, 1980.

Decided Aug. 4, 1980.

Rehearing and Rehearing En Banc Denied Oct. 22, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 402-63).

Kathleen Hamor ^* with whom Michael Geltner, Washington, D.C. (appointed by this Court), for appellant.

Joseph C. Frady, pro se, was on the brief.

Benjamin B. Sendor, Asst. U. S. Atty., Washington, D.C., for appellee. Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and Charles W. Brooks, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before McGOWAN and EDWARDS, Circuit Judges, and FRIEDMAN, ^** Chief Judge, United States Court of Claims.

Opinion for the court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

This case is an appeal from the trial court's denial of the appellant's motion under 28 U.S.C. § 2255 (1976) to overturn his murder conviction on the ground that the jury instructions on malice and specific intent were defective. Since we find that at least two of the instructions were in error, substantially affecting the factfinding process and possibly precluding the jury from considering a manslaughter verdict, we reverse and remand for further proceedings. However, because retrial after so many years may be difficult for either the Government or the appellant, if the Government consents, and the trial court considers it to be in the interest of justice after hearing from both parties, the trial judge may enter a judgment of manslaughter. See United States v. Wharton, 433 F.2d 451, 461 (D.C.Cir. 1970).

I. BACKGROUND

Appellant, Joseph Frady, and a co-defendant, who is not a party to this appeal, were indicted in 1963 by a federal grand jury for first degree murder, felony murder, and robbery. After a jury trial, they were convicted of first degree murder and robbery; however, both defendants were acquitted of felony murder. This court subsequently affirmed the appellant's conviction. ¹ In the years that followed, the appellant filed numerous motions pro se to reduce his sentence. ²

In September 1979, the appellant filed a motion under 28 U.S.C. § 2255 (1976) alleging that a jury instruction given at the original trial in 1963 were defective and thus denied him a fair trial. The trial judge denied the motion on the grounds that the appellant could have or did raise the issues in his direct appeal or in the various motions filed following his conviction. ³ Since we find that there was plain error in the jury instructions given at appellant's trial, and since we find that the erroneous instructions clearly prejudiced appellant's right to a fair trial, we hereby reverse and remand.

II. THE JURY INSTRUCTIONS

The trial judge instructed the jury on each of the elements of first degree murder, second degree murder, and manslaughter. The elements of first degree murder include malice, specific intent, and premeditation; second degree murder is a killing done with malice but without premeditation; manslaughter includes all other unlawful killings done without malice. ⁴ Thus, malice is the element that distinguishes both degrees of murder from manslaughter.

The appellant claims that the jury instructions on malice were erroneous in two respects. ⁵ First, the trial judge equated specific intent with malice. ⁶ The effect of this instruction, according to the appellant, "was to take the case out of the category of manslaughter and place it in the category of murder." Green v. United States (Green I), 405 F.2d 1368, 1370 (D.C.Cir. 1968). See United States v. Perkins, 498 F.2d 1054, 1058 (D.C.Cir. 1974) (condemning the same instruction). Second, the trial judge instructed the jury that "the law infers or presumes from the use of such weapon in the absence of explanatory or mitigating circumstances the existence of the malice essential to culpable homicide" (Tr. at 806). (emphasis added). Appellant argues that this instruction, compelling the jury to presume malice, also prevented the jury from considering a verdict of manslaughter.

Beyond question, each of the cited instructions is erroneous. They are identical to the instructions given in United States v. Wharton, 433 F.2d 451 (D.C.Cir. 1970), and Green v. United States (Green I), 405 F.2d 1368 (D.C.Cir. 1968), where this court found the use of the instructions to be reversible error. ⁷

III. STANDARD OF REVIEW

Because the appellant did not object at trial to the jury instructions here in question, we must first decide whether the errors in the instructions are of such magnitude that we can overlook what the Government claims to be his procedural default. At the outset, we note that this action is brought by a federal prisoner. Thus, problems of comity and federalism do not come into play in this matter.

Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), is the leading case dealing with the availability of collateral relief for federal prisoners who fail to raise objections at trial. Repudiating some of the broad language in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court in Davis held that a federal prisoner, challenging the racial composition of the grand jury that indicted him, must show cause for his failure to make a timely objection as required by Rule 12(b)(2) of the Federal Rules of Criminal Procedure. ⁸ This cause requirement is based on Rule 12(f), which provides that failure to raise objections "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." The Supreme Court held that, absent cause, Rule 12(b)(2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds. 411 U.S. at 242, 93 S.Ct. at 1582.

The Court in Davis also held that both "the reasons for the Rule and the normal rules of statutory construction" require at least as strict a standard for collateral attacks as for direct appeals. Id. at 240-41, 93 S.Ct. at 1582. Thus, the Court concluded that to allow a less stringent standard for collateral attacks would "perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings." Id. at 242, 93 S.Ct. at 1582.

Following the analysis set forth in Davis, we turn to Rule 30 of the Federal Rules of Criminal Procedure, which provides that

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.

Although it does not refer to waiver specifically, the general thrust of Rule 30 is to foreclose the appellant from raising objections to jury instructions on appeal unless the appellant objected to the instructions at trial.

Rule 30, however, must be read in conjunction with Rule 52(b), which provides that

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Under Rule 52(b), it is clear that an appellant is not automatically barred from objecting to jury instructions on appeal where no objection has been raised at trial. Indeed, it has been consistently held in this circuit that, even though no objection was raised at trial, appellants may raise certain errors on direct appeal. See United States v. McClain, 440 F.2d 241, 245 (D.C. Cir. 1971); United States v. Williams, 463 F.2d 958, 962 (D.C. Cir. 1972); United States v. Alston, 551 F.2d 315, 320-21 (D.C. Cir. 1976). We follow this line of authority in our consideration of this case.

Since, as the Davis court held, the standard for allowing a 28 U.S.C. § 2255 motion on an issue not raised at trial should be no less stringent than the standard in the Federal Rules of Criminal Procedure for review on direct appeal, we hold that the appropriate standard for review in this case is the plain error standard set forth in Rule 52(b). ⁹

The Government also briefly argues that the trial court may dismiss a motion filed under section 2255 if the Government has been prejudiced in its ability to respond to the motion. Rule 9(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. First, we note that the District Court did not dismiss the appellant's petition for this reason. Second, we do not find that the Government is prejudiced in responding to the motion. On the contrary, since no evidentiary hearing is required to decide appellant's case, the Government is quite able to respond to the motion.

Third, Rule 9 also provides that the court cannot dismiss the motion if the "movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred." Even if the Government were prejudiced, the appellant, who has been incarcerated and without counsel since his conviction, was in no position to keep up with the changes in the law on the constitutionality of jury instructions. Thus we find that the trial court could not have dismissed the petition under Rule 9.

IV. PLAIN ERROR AND THE MALICE INSTRUCTIONS

In several cases, this court has applied the plain error standard to appeals from convictions based on erroneous malice instructions. In Belton v. United States, 382 F.2d 150 (D.C. Cir. 1967), the trial court had instructed the jury that the law inferred malice from the use of a deadly weapon. ¹⁰ This court found no plain error and affirmed the conviction because of a conjunction of factors. First, the error involved only a single phrase that, in context, was unlikely to mislead the jury. Second, the court in Belton reasoned that the jury's verdict of first degree murder necessarily implied a finding of premeditation and deliberation, which in turn meant...