U.S. v. Hyman, 83-2474

• Decision Date: 26 July 1984
• Docket Number: No. 83-2474,83-2474
• Citation: 741 F.2d 906
• Parties: 16 Fed. R. Evid. Serv. 87 UNITED STATES of America, Plaintiff-Appellee, v. Samuel HYMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 906

741 F.2d 906

16 Fed. R. Evid. Serv. 87

UNITED STATES of America, Plaintiff-Appellee, v. Samuel HYMAN, Defendant-Appellant.

No. 83-2474.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1984.

Decided July 26, 1984.

Evan Spangler, Asst. U.S. Atty., R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Patrick A. Tuite, Chicago, Ill., for defendant-appellant.

Before CUDAHY and COFFEY, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

FLOYD R. GIBSON, Senior Circuit Judge.

The defendant, Sam Hyman, appeals from a criminal conviction for: conspiracy to receive, possess, dispose of, and transport in interstate commerce goods stolen from interstate commerce; ¹ possession of goods stolen from interstate shipments; ² and the interstate transport of stolen goods. ³

I. Facts.

At the threshold we note that a jury verdict must be sustained if, taking the view most favorable to the government, there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Xheka, 704 F.2d 974, 976 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983). Thus, only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn a verdict. United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), quoting, Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied sub nom., Gilboy v. United States, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 2634 (1971).

Hyman, the defendant was a semi-retired, self-employed individual who had made a living by buying and reselling plate and flat-rolled steel. William Kramer was an individual who had been involved in the theft and sale of steel and, in May of 1982, became a paid informant for the FBI. Unbeknownst to the FBI, Kramer continued to deal illicitly in the black market. The transaction at issue here was one of Kramer's personal deals, of which the FBI later became aware.

Kramer contacted the defendant on June 28, 1982, to see if the defendant was interested in buying three coils of galvanized steel. The steel had been stolen by two men, Havard and Alfonsi, and was stored in a public warehouse in Indiana. The defendant and Kramer negotiated and agreed on a price. The defendant then made several calls in an attempt to resell the steel. He found a willing buyer in Kenneth Messenger, of Century Steel Co., in Chicago Heights, Illinois. The defendant contacted a shipping company and arranged to have the steel transported from the warehouse in Indiana to the buyer in Illinois.

When the shipment arrived at Century Steel, Messenger phoned the defendant to inform him that Messenger was going to reject the steel because it was not as it had been represented. After considerable persuasion by the defendant, Messenger agreed to keep the steel, but at a substantially lower price. The defendant then called Kramer to express his dismay and to renegotiate the price of the steel. After a visit to the defendant's office and conversations with the thieves, Kramer agreed to accept a lower price for the steel. Later, Kramer sent the defendant an invoice for the steel at the renegotiated price, and the defendant paid Kramer by check.

The FBI eventually uncovered this transaction and, with Kramer's help, adduced sufficient evidence to support a criminal indictment against the defendant. At trial, the defendant did not dispute that the steel had been stolen, or that he had bought and resold the steel. The only issue at trial was whether the defendant knew the steel had been stolen when he bought it. On appeal, the defendant raised several issues for our consideration.

II. Jury Instructions.

a. The "presumption of truth" instruction.

During the charge to the jury, the trial judge gave instruction No. 26 which provided as follows:

If there are conflicts in the evidence, it is your duty to reconcile the conflicts, if you can, on the theory that each witness has testified to the truth. If you cannot so reconcile the testimony, then it is within your province to determine whom you will believe and whom you will disbelieve. You should weigh the evidence and give credit to the testimony in light of your own experience and observations in the ordinary affairs of life.

The defendant argues that this instruction amounts to an instruction that every witness is presumed to have testified truthfully, and is error because it is within the sole province of the jury to determine witness credibility. A "presumption of truth" instruction has been disapproved by several circuits. United States v. Pincione, 565 F.2d 404, 405 (6th Cir.1977); United States v. Gray, 464 F.2d 632, 638-39 (8th Cir.1972); United States v. Birmingham, 447 F.2d 1313, 1315-16 (10th Cir.1971); United States v. Boone, 401 F.2d 659, 661, 662 (3rd Cir.1968), cert. denied sub nom., Jackson v. United States, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969); McMillen v. United States, 386 F.2d 29, 35-36 (1st Cir.1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Bilotti, 380 F.2d 649, 656 (2d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967). However, upon close inspection of the precedent in this circuit ⁴, and after careful consideration, we do not think that instruction No. 26 is a "presumption of truth" instruction. In effect the jury was told that if there were irreconcilable conflicts in the evidence, then it was up to the jury to decide who to believe. Thus, the instruction left the determination of witness credibility to the jury and there was no presumption of truthfulness charge to the jury.

b. The instruction on character evidence.

At trial the defendant presented two witnesses who testified regarding his honesty, integrity, and good character in general. During the conference on jury instructions, the defendant's attorney requested that the court's proposed instruction on this evidence be changed to conform to this circuit's pattern jury instruction No. 3.15. The trial judge agreed to make the change but, by what we must assume was oversight, failed to do so. ⁵

The defendant argues that the trial court's failure to make the proposed change violated Fed.R.Crim.P. 30, which requires the court to inform counsel of its proposed action prior to closing argument, and denegrated the importance of his character evidence so seriously that reversal is required. We disagree.

As we have noted recently, technical violations of Rule 30 require reversal only where the defendant can show actual prejudice. United States v. Baker, 722 F.2d 343, 346 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). The defendant has not met this standard.

In Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896), the Supreme Court reversed a criminal conviction because the trial court had instructed the jury that it was free to disregard the defendant's character evidence unless the government had failed to prove its case convincingly. Id., at 364-66, 17 S.Ct. at 73-74. The important thrust of Edgington was that the jury be told to consider the character evidence along with all the other evidence when deciding whether the government has proved a defendant's guilt beyond a reasonable doubt.

[Evidence of] good character when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although without it the other evidence would be convincing.

Id., at 366, 17 S.Ct. at 74. Here, the trial court's instruction met the mandate set forth in Edgington, and met the Edgington mandate as it has been adopted in this circuit. See United States v. Donnelly, 179 F.2d 227, 233 (7th Cir.1950).

The trial court's instruction also was consistent with variations upon the instruction approved of by this court in other cases. See United States v. Picketts, 655 F.2d 837, 842 (7th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States v. Ming, 466 F.2d 1000, 1007 (7th Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972). Finally, when a trial court has given a substantially accurate instruction which covers adequately the subjects addressed by a proposed instruction or change in the instruction, the court will not be reversed for failure to use the exact language tendered by counsel. United States v. Zarattini, 552 F.2d 753, 759 (7th Cir.), cert. denied, 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977).

c. The immunity instruction.

The government presented several witnesses at trial, most of whom had been involved somehow in the interstate theft, transportation, and sale of steel. One witness, Larry Massey, had dealt with the defendant on a matter unrelated, but similar, to the charge for which he was tried. Massey was granted use immunity in exchange for his testimony against the defendant. The two men who had stolen the steel in issue at trial, Havard and Alfonsi, and another thief, Lester Longanetti, pleaded guilty to charges reflecting their involvement with black market steel, and received reduced sentences in exchange for their testimonies. Kramer was not charged with any crime nor granted immunity, although he was a paid informant for the FBI.

At trial, the defendant requested that the trial court include Havard, Alfonsi, and Longanetti in the immunity instruction the court had prepared regarding Massey's testimony. The defendant also requested that the trial court include, in its instruction regarding Kramer's testimony, the fact that Kramer had admitted committing a number of crimes for which he had not been prosecuted. The defendant argues that the trial court committed...