U.S. v. Harrigan

• Decision Date: 14 November 1978
• Docket Number: No. 78-1137,78-1137
• Citation: 586 F.2d 860
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard HARRIGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 860

586 F.2d 860

UNITED STATES of America, Plaintiff-Appellee, v. Bernard HARRIGAN, Defendant-Appellant.

No. 78-1137.

United States Court of Appeals First Circuit.

Argued Sept. 8, 1978.

Decided Nov. 14, 1978.

Thomas G. Shapiro, Boston, Mass., by appointment of the court, with whom Silverglate, Shapiro & Gertner, Boston, Mass., was on brief, for appellant.

Sara Criscitelli, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., Stephen H. Jigger, Sp. Atty., Boston Strike Force, Boston, Mass., and Robert J. Erickson, Atty., Dept. of Justice, Washington D. C., were on brief, for appellee.

Before KUNZIG, Judge, U. S. Court of Claims, ^* CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant was convicted after a jury trial of illegal gambling under 18 U.S.C. §§ 2 and 1955. He assigns three errors by the district court as the basis of his appeal:

1. that the district court erroneously instructed the jury on the burden of proof;

2. that the district court erred in its comment on the evidence during the final instructions; and

3. that the district court's failure to suppress evidence of a statement made by appellant at the time of his arrest was error.

I. INSTRUCTIONS ON THE BURDEN OF PROOF

The main issue in the case was the identification of appellant as the alleged bookmaker. Exemplars of telephone conversations of persons placing bets with an individual called "Bernie" were introduced in evidence. Defense counsel, Thomas Shapiro, attempted to show that it was probable that the bookmaker was a person by the name of Charles Bernard Gordon. During the prosecutor's summation, the following statements were made in the presence of the jury.

(PROSECUTOR): So are you convinced Mr. Shapiro has proved to you that Mr. Gordon was the bookmaker in the case?

MR. SHAPIRO: I object to that, your Honor.

THE COURT: The objection is sustained. The jury will disregard the last remark. The only question is whether the evidence raises a reasonable doubt, that is, defense evidence. The question with respect to the government's evidence, I'll discuss in a few minutes.

MR. SHAPIRO: I suggest that the defendant has no burden of raising a reasonable doubt.

THE COURT: I say the only question with respect to the defendant's evidence is whether it creates a reasonable doubt and no more. A rather favorable instruction from your point of view; I wouldn't object to it too hard.

The court in charging the jury gave this specific instruction:

You notice that I have not said to try the issue of guilt or innocence. The defendant is not required to establish his innocence. The burden in this trial, as in every criminal trial, is upon the Government to establish the guilt of the defendant by proof beyond a reasonable doubt. That is the reason why I made the comment during the argument that the defendant's evidence has no greater function than simply to raise a reasonable doubt in your minds, if it does. The defendant is not required to go any further.

There is no question that the court's comment during the summation and its instruction was incorrect. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), solidified the constitutional foundation of the reasonable-doubt standard:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 398, 38 L.Ed.2d 368 (1973), the Court, in holding that an instruction that " 'every witness is presumed to speak the truth' " did not violate due process, explicitly stated: "We imply no retreat from the doctrine of Winship when we observe that it was a different case from that before us now." Id. at 148, 94 S.Ct. at 401. The Supreme Court recently emphasized the constitutional importance of the reasonable doubt standard in Taylor v. Kentucky, 431 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (May 30, 1978).

At least two circuits have held state alibi defenses that put the burden of proof on a defendant to be unconstitutional. Smith v. Smith, 454 F.2d 572 (5th Cir. 1972), Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968). In United States v. Flannery, 451 F.2d 880, 882, 883 (1st Cir. 1971), we signalled our concern that instructions on the burden of proof be correct. In Wilbur v. Mullaney, 496 F.2d 1303, 1307 (1st Cir. 1974), we held:

Placing the burden on a defendant to reduce murder to manslaughter may be sound public policy if the state's purpose is to facilitate convictions for murder, but Winship teaches that it is constitutionally improper to facilitate convictions at the cost of imposing a burden of proof upon the defendant. The burden of proof must be on the state throughout; not sometimes on the state, and sometimes on the defendant. (emphasis ours).

In a habeas corpus case decided this year, we held that incorrect instructions on the burden of proof mandated a new trial. In Dunn v. Perrin, 570 F.2d 21, 24 (1978), we stated:

In United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971), we condemned virtually that exact wording. Although the existence of other reversible error in Flannery made it unnecessary for us to resolve the constitutional implications of such a charge, we do so now. That definition of reasonable doubt was the exact inverse of what it should have been. See United States v. Magnano, 543 F.2d 431, 436 (2d Cir. 1976); Bernstein v. United States, 234 F.2d 475, 486 n. 8 (5th Cir. 1956). Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors' minds. That is an inescapable violation of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969). (emphasis ours).

The government does not dispute that the court's instructions were erroneous, but asserts that the charge read in its entirety erased the incorrect instructions, or at least reduced them to harmless error proportions. We agree that the instructions must be reviewed in the context of the overall charge. Cupp v. Naughten, supra, 414 U.S. at 146-147, 94 S.Ct. 396; United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 70 L.Ed. 857 (1926). It is clear that, aside from the offending paragraph, the charge did state the burden of proof standard correctly. But the instruction that the defendant's evidence "has no greater function than simply to raise a reasonable doubt in your minds, if it does," came at the outset of the charge and formed an integral part of the instructions on the burden of proof. This was not an obvious misstatement or the careless use of words. The district court was convinced at the time of the correctness of its statement. Like the rest of the charge, the offending instruction was given in clear and precise language. There was no reason for an attentive juror, mindful of his duty to take the law from the court, to ignore or disregard this instruction. While the charge did not contain the repeated errors we found fatal in Dunn v. Perrin, supra, 570 F.2d at 21, the error was of such a nature that it could not be erased or diminished by the balance of the charge. Moreover, the incorrect instruction in the charge was a repeat of what the jury was told during the prosecutor's summation. And its presumed validity was emphasized to the jury by the judge when, in response to defense counsel's statement that the defendant has no burden of raising a reasonable doubt, he said: "I say the only question with respect to the defendant's evidence is whether it creates a reasonable doubt and no more. A rather favorable instruction from your point of view; I wouldn't object to it too hard." This is clearly not the type of case where the offending instruction is swallowed by an otherwise error free charge and vanishes.

Nor does the harmless error doctrine save the trial. The standard in this circuit for determining harmless error was set forth most recently in United States v. Christian, 571 F.2d 64, 69-70 (1st Cir. 1978):

When a trial error infringes on constitutional rights, we must reverse unless we find that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Such doubt can be raised by a "reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); Roy v. Hall, 521 F.2d 120, 123 (1st Cir. 1975).

The government's case rested mainly on intercepted telephone conversations between bettors and a person called "Bernie." The jury heard eighteen recorded telephone conversations to which "Bernie" was a party. A voice exemplar given by appellant to the F.B.I. a week prior to trial was also played to the jury. F.B.I. Agent Lucksted, who had no special expertise or training in voice comparison, testified that it was his opinion that appellant was "Bernie." It was brought out on cross-examination that the agent had never met appellant, except for taking his voice exemplar, and that he knew prior to making the comparison that "Bernie's" voice was believed by the government to be that of appellant. There was evidence by another F.B.I. Agent, Zabowski, from which it might be inferred that Charles Bernard Gordon, the bartender at the Belmont Grill, frequented by appellant, was the one taking bets.

This was far from an open and shut case; the district court at one bench conference told the prosecutor, "You have a lousy case." It was the type of case in which the erroneous instruction might have made the difference between acquittal and conviction. See United States v. Martin, 154 U.S.App.D.C. 359, 365, 475 F.2d 943, 949 (1973).

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