U.S. v. Petersen, s. 74-2492

Citation513 F.2d 1133
Decision Date24 March 1975
Docket Number74-2451,Nos. 74-2492,s. 74-2492
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carl S. PETERSEN, Defendant- Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Arthur ZAPPIA, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before MERRILL and TRASK, Circuit Judges, and JAMESON, * District Judge.

TRASK, Circuit Judge:

These consolidated appeals are from conviction at a jury trial of conspiracy to dispose of property of the United States without authority in violation of 18 U.S.C. § 371 (conspiracy to defraud) and 18 U.S.C. § 641 (embezzlement or theft of property of the United States).

The case arose out of transactions instituted by the manager of the Smithsonian Astrophysical Observatory facility at Mt. Hopkins near Amado, Arizona. The manager, Charles Tougas, was a codefendant below but is not joined in this appeal. Tougas was assigned in 1966 to develop the site of the Mt. Hopkins facility. To this end he had authority to obtain excess property from government installations. Petersen was an operator of a Tucson salvage yard, and Zappia was a truck driver.

Tougas arranged for the acquisition of excess government property. Some of it was not taken to the Amado facility for Mt. Hopkins but was brought to Petersen's yard where it was exchanged or sold. Zappia drove to government installations in the Western states with a truck he leased in the name of the Smithsonian Institute and, using government forms provided by Tougas, picked up the excess property. On one occasion there was evidence that he sold goods off the truck.

The theory of the defense at trial was that Petersen and Zappia acted on the apparent authority of Tougas and lacked the specific intent required for a conviction under 18 U.S.C. sections 371 and 641.

The jury found the appellants not guilty of the two substantive counts under section 641 but found them guilty of conspiracy under section 371. Petersen was sentenced to 2 years imprisonment and Zappia to 1 year and 1 day.

After the jury was out for the first day, it announced that it was hopelessly deadlocked. The court discharged the jury for the night and urged them to try again the next day. After the second day the jury again announced that they were hopelessly deadlocked. The judge again discharged them for the night and urged them to try again the next day. On the third day the jury reached its verdict.

During deliberations the jury several times requested clarification of the instructions. On the afternoon of the first day the jury was called back in and instructed again on the meaning of the terms "intent, motive and unknowingly." On the morning of the second day the jury again requested clarification of the meaning of motive and intent and then asked for a reading of the entire charge. The judge read the entire charge and then gave cursory answers to the specific questions the jurors had posed.

On the third day of deliberations the incident occurred which gave rise to the claim of error by appellants. At 1:40 p.m. the judge sent a note into the jury which read: "Madame Foreman, Ladies and Gentlemen, has the jury been able to arrive at a verdict on any count in the indictment with respect to any defendant? Please answer only yes or no. Can I be of any assistance in your further deliberations?"

The jury sent back a note which stated that they had not reached any verdicts but went on: "we feel that we can soon arrive at a verdict upon verification of this question . . . is ignorance of the law any excuse?" The judge wrote the word "no" after the question and over the objection of defense counsel sent it in to the jury. The judge noted that the "no" was written in a "heavy hand." This was sent to the jurors at 2:05 p.m. At 2:30 p.m. the judge received another communication from the jury. This one read: "Is this your answer to the above question: Is ignorance of the law any excuse? . . . or if not, please explain the above 'No.' " The judge wrote across the note, in what he termed "a bold hand," "ignorance of the law is not an excuse." Eighteen minutes after receiving this communication, the jury reached a verdict.

Appellants claim that the note the judge wrote to the jury saying that "ignorance of the law is no excuse" was erroneous, misleading and contradictory. They are correct. As the trial judge accurately noted in earlier instructing the jury, ignorance of the law is to be considered in determining whether there existed the specific intent necessary for a violation of the law charged. 1 While the principle has often been stated by the courts that ignorance of the law is no excuse, its use in the circumstances of this case was at least misleading to the jury. The jury had previously indicated that it was having difficulty with the terms intent and motive, and the judge's summary treatment of the meaning of ignorance of the law may have caused the jury to eliminate it as a factor affecting specific intent.

Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1945), is closely on point with the facts of this appeal. There the jury had also twice announced that they were deadlocked. They then asked for a supplemental instruction on a vital point of law, and the judge incorrectly answered their question. The Court stressed the importance of clarity in last minute instructions to the jury, particularly where the jury had evidenced confusion.

The last minute instruction here is not as clearly incorrect as that in Bollenbach. It was, however, at least misleading on a vital issue in the case. Its prejudicial effect may be measured by the short time it took to reach a verdict after the receipt of the instruction 18 minutes. This conclusion is strengthened...

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22 cases
  • United States v. Smith, Crim. No. 84-00092-A.
    • United States
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    • 1 Agosto 1984
    ...939 (4th Cir.1963); U.S. v. Fierros, 692 F.2d 1291 (9th Cir.1982); U.S. v. Currier, 621 F.2d 7, 9 n. 1 (1st Cir.1980); U.S. v. Petersen, 513 F.2d 1133, 1135 (9th Cir.1975); U.S. v. Squires, 440 F.2d 859, 862-65 (2d Cir.1971); Kratz v. Kratz, 477 F.Supp. 463, 480 (E.D. Pa.1979); Model Penal ......
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    ...operative facts of the crime." 4 Fierros, 692 F.2d at 1294. We began our examination in Fierros with a discussion of United States v. Petersen, 513 F.2d 1133 (9th Cir.1975): In that case defendant was charged with embezzlement or theft of federal property in violation of 18 U.S.C. Sec. 641,......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Abril 1989
    ...operative facts of the crime." 4 Fierros, 692 F.2d at 1294. We began our examination in Fierros with a discussion of United States v. Petersen, 513 F.2d 1133 (9th Cir.1975): In that case defendant was charged with embezzlement or theft of federal property in violation of 18 U.S.C. Sec. 641,......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 24 Noviembre 1997
    ...(trial court rereading statute and standard instruction was insufficient where jury showed confusion); United States v. Petersen, 513 F.2d 1133, 1136 (9th Cir.1975) (giving cursory supplemental instruction in face of jury confusion was insufficient); Powell v. United States, 347 F.2d 156, 1......
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