U.S. v. Hunt, 85-1624

• Decision Date: 25 July 1986
• Docket Number: No. 85-1624,85-1624
• Citation: 794 F.2d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard L. HUNT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1095

794 F.2d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Richard L. HUNT, Defendant-Appellant.

No. 85-1624.

United States Court of Appeals Fifth Circuit.

July 25, 1986.

Michael F. Pezzulli, Roark M. Reed, Dallas, Tex., for defendant-appellant.

Marvin Collins, U.S. Atty., Lynn Hastings, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE and HIGGINBOTHAM, Circuit Judges, and HARVEY, ^* District Judge.

GEE, Circuit Judge:

Today, we consider a criminal defendant's challenges to various instructions given to the jury. On appeal, he argues that, taken together, the trial court's refusals to adopt his requested instructions amount to a denial of his right to a fair trial. Disagreeing, we affirm his convictions.

The facts of this case are undisputed. In 1983, Mary Tubbs, Susan Maddox, and appellant Richard Hunt formed two Texas companies, Creditsaver, Inc. and First Security Credit. With the stated corporate purpose of providing "mail order information service," they advertised in such publications as The National Enquirer and The Star Classified. Their advertisements provided the following:

Assured credit: MasterCard, Visa, and more. All available through First Security Credit regardless of past credit, no credit, bankruptcy; completely guaranteed. Women and students cards available.

The ads included a toll-free number; a phone call would result in a solicitation letter and an application mailed to the hapless customer. The letter's solicitation read "Dear Future Cardholder" and was signed by "David Weston, New Accounts Department." ¹ It encouraged the customer to fill out the application and return it along with a check for 35 dollars. The application itself requested information concerning employment and income, just as actual credit card applications would.

The complying customer would receive no credit card, however; rather, he would receive only a seven page booklet entitled "Ten Easy Steps to Good Credit." No advertisement or brochure had mentioned anything about such a booklet, and several customers later testified that the ads led them to expect the delivery of actual credit cards. Those calling the company to complain reached only an answering service. Their complaints, however, eventually reached the United States Postal Service, whose investigation eventually led to the seizure of the companies' business records and to criminal indictments.

Charged with several counts of mail fraud in violation of 18 U.S.C. Sec. 1341, the three were tried and convicted of most counts. The trial court probated their sentences, conditioned on restitution to their victims and on public service work. Only Hunt now appeals, claiming that abuse of discretion occurred when the trial court refused to give certain requested instructions to the jury. More specifically, he argues that these refusals served to diminish or to eliminate the Government's burden of proving intent to defraud, a burden Sec. 1341 imposes.

In considering his arguments, we must test the instructions given not against those he requested--for a criminal defendant lacks the right to have his requests adopted word for word--but against the law. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir.1985), cert. denied --- U.S. ----, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). We continue to recognize the trial judge's "substantial latitude in tailoring his instructions as long as they fairly and adequately cover the issues presented in the case." Id. at 293, quoting United States v. Pool, 660 F.2d 547, 548 (5th Cir.1981). This view is reflected in the formula we propounded in United States v. Grissom, 645 F.2d 461 (5th Cir.1981). Under this formula, a trial judge's refusal to deliver a requested instruction constitutes reversible error only if three conditions exist:

(1) the instruction is substantively correct;

(2) it is not substantially covered in the charge actually given to the jury; and

(3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively.

Id. at 464. These cases make clear that we may reverse only if the defendant was improperly denied the chance to convey his case to the jury; in other words, an abuse of discretion occurs only when the failure to give a requested instruction serves to prevent the jury from considering the defendant's defense. With this in mind, we turn to the issues of this case.

Hunt first argues that the trial court committed an abuse of discretion by refusing to give a good faith instruction to the jury. "Good faith is a complete defense to the charge of intent to defraud under the mail fraud statutes." United States v. Goss, 650 F.2d 1336, 1244 (5th Cir.1981). Defendants elicited much testimony about their good faith intention to run a legal business, moreover. Although the court gave a detailed instruction on the prerequisite of specific intent, Hunt argues that a specific good faith instruction is also required. He correctly cites United States v. Fowler, 735 F.2d 823 (5th Cir.1984), and Goss, 650 F.2d 1336, as standing for the proposition that a defendant has the right to a good faith instruction if he introduced evidence of good faith. His reliance on these cases is unavailing, however, because later caselaw has effectively by-passed these decisions.

In United States v. Gray, 751 F.2d 733 (5th Cir.1985), a specific intention instruction similar to that of this case was given unaccompanied by a good faith instruction. We nevertheless affirmed the conviction, holding that "the sufficiency of the submission of a defendant's theory ... must be examined in the full context of trial including the final arguments of counsel." Id. at 735. Because the Fowler and Goss decisions lacked this examination, we questioned their continuing vitality; noting that the per se rule of Goss was inconsistent with the holdings of earlier cases such as United States v. Wellendorf, 574 F.2d 1289 (5th Cir.1978), we concluded that "any conflict among our prior decisions is resolved in favor of [Wellendorf ]." 751 F.2d at 735-36. In his reply brief, Hunt attempts to distinguish cases such as Gray on the facts. For example, Gray differs because it involved the "facially illegal activity" of creating a fraudulent insurance company with non-existent corporate assets. No substance underlies this distinction, however, because Gray 's ruling is not couched in fact-specific terms.

More important, we recently applied Gray 's dictates in Kimmel, 777 F.2d 290, which also involved convictions for mail fraud. We there relied on Gray in concluding that the sufficiency of a good faith instruction must be judged by looking at more than just the words of the instruction:

[W]e must now examine the totality of the circumstances at trial; detached scrutiny of an instruction's four corners no longer suffices to determine its propriety [citing Gray ]. In reality, a criminal defendant's good faith defense is the affirmative converse of the government's burden of proving his intent to commit a crime. Because this relationship exists, we must look at all opportunities Kimmel had to rebut the evidence suggesting his intent to defraud.... In Gray we saw no error in the trial judge's refusal to give a good faith instruction because, "[t]aken together, the trial, charge, and closing argument laid Gray's theory squarely before the jury. 751 F.2d at 736. The facts of this trial show that Kimmel had just as great a chance to make his case.

Id. at 293. It is therefore necessary to determine the extent to which Hunt was able to present his defense to the jury.

As mentioned before, Hunt himself refers to the defendants' great efforts to elicit testimony about their honest business practices and reputation for honesty. The defendants themselves testified as to the lack of any intent to deceive the public. They put on a number of character witnesses. In his closing argument, defense counsel mentioned good faith and focused on Hunt's concern with operating legitimately. Finally, the instruction on specific intent was both detailed and clear. Hunt obviously had great opportunity to "make his case," as much as Messrs. Gray and Kimmel. His argument is therefore meritless.

He continues by next alleging that the trial court improperly refused to instruct the jury that evidence of the defendants' good reputation for honesty may create a reasonable doubt. Before trial, defendant Maddox requested an instruction on reputation evidence. ² At trial, Hunt presented three character witnesses each of whom testified about his reputation for honesty. The trial court nevertheless declined to give any instruction on reputation evidence. In deciding whether this was an abuse of discretion, we first note that, contrary to Hunt's contentions, trial judges need not follow the Pattern Jury Instructions promulgated by the United States Fifth Circuit District Judges Association. Although it is good practice to do so, and although their use would make our job much easier, we have never mandated unswerving obedience to these recommended forms of instruction. See, e.g., Kimmel. 777 F.2d at 295. Divergence from the Pattern Jury Instructions therefore cannot stand alone as cause for reversal.

Hunt, however, also asserts that Darland v. United States, 626 F.2d 1235 (5th Cir.1980) requires a jury instruction on reputation evidence. Darland is somewhat beside the point, however, because the trial court there not only failed to give such an instruction but also refused to allow the introduction of such evidence at all. In other words, Darland was denied any chance to tell the jury of his reputation. We fully recognize that the law gives a defendant the right to present reputation evidence in such a case as this; indeed, we reaffirm the recognition that proof of good character can raise a...