U.S. v. Spangler

• Decision Date: 19 January 1988
• Docket Number: No. 87-1467,No. 87-1452,87-1467,Nos. 87-1452,87-1452,s. 87-1452
• Citation: 838 F.2d 85
• Parties: UNITED STATES of America v. SPANGLER, Edward, Appellant inAppeal of MAIRONE, Anthony, Appellant in . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 85

838 F.2d 85

UNITED STATES of America v. SPANGLER, Edward, Appellant in No. 87-1452 Appeal of MAIRONE, Anthony, Appellant in No. 87-1467.

Nos. 87-1452, 87-1467.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Jan. 19, 1988.

Decided Jan. 29, 1988.

Rehearing Denied in No. 87-1467, Feb. 25, 1988.

Oscar B. Goodman, Kenneth G. Freitas, Goodman, Stein & Chesnoff, Las Vegas, Nev., for appellant, Edward Spangler.

Stephen P. Gallagher, Stack & Gallagher, P.C., Philadelphia, Pa., for appellant, Anthony Mairone.

Edward S.G. Dennis, Jr., U.S. Atty., William B. Carr, Jr., Asst. U.S. Atty., Acting Chief of Appeals, Seth Weber, Asst. U.S. Atty., Philadelphia, Pa., for appellee, U.S.

Before GIBBONS, Chief Judge, WEIS and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Chief Judge:

Edward Spangler, a Philadelphia Police Lieutenant, and Anthony Mairone, a police officer, both employed during the relevant time period as members of the East Division vice squad, appeal from judgments of sentence imposed following their conviction by a jury of extortion, conspiracy to commit extortion, and aiding and abetting the crime of extortion. 18 U.S.C. Sec. 1951 (1982); 18 U.S.C. Sec. 2. Each contends that the trial court erred in failing to give a requested instruction on evidence of his good character, and in choosing the wording of the instruction on good character which was given.

The government's case consisted of the testimony of Andy Kelly, a police officer who worked as Mairone's partner in the vice squad, and the testimony of approximately 10 numbers writers and one sports betting operator. From that testimony the jury could reasonably conclude that the numbers operators and the sports betting operator regularly made protection payments to Kelly or Mairone, and that these payments were divided among Spangler, Kelly, and Mairone.

Spangler testified on his own behalf. Mairone elected not to testify. Each presented various witnesses who testified to his character or reputation as a good, honest, law-abiding citizen. Both defendants requested a specific instruction:

Evidence of good reputation in and of itself can create a reasonable doubt.

The trial court indicated that it would include in the jury charge "the character witness instruction," but did not specifically agree to charge in the precise language which was requested. The court instructed on character evidence as follows:

Now, you did hear some, some people call it character evidence, reputation evidence.

You heard a number of character witnesses, each of whom, some of whom, lets put it that way, I think, stated their personal opinion, as well as the reputation of the defendant in the community for honesty and being a law abiding citizen and the law says, you should consider such character evidence along with all the other evidence you heard in the case when making your determination as to whether the government has proved, beyond a reasonable doubt, that the defendant whose case you are then considering, committed the particular crime or crimes that are alleged in the indictment.

Relying particularly on United States v. Logan, 717 F.2d 84 (3d Cir.1983), Spangler and Mairone contend that the failure to at least include in the instruction the requested language that evidence of good reputation in and of itself can create a reasonable doubt, was an error which requires a new trial. In Logan, the opinion reviewed this court's caselaw on the character evidence instruction. That caselaw starts with a pronouncement in Kaufmann v. United States, 282 F. 776, 785 (3d Cir.), cert. denied 260 U.S. 735, 43 S.Ct. 96, 67 L.Ed. 488 (1922), that "the defendant was not entitled to have the judge charge that his good reputation, standing alone, of itself, without regard to the other evidence or circumstances in this case, was sufficient to create reasonable doubt." Two decades later, in United States v. Quick, 128 F.2d 832, 835 (3d Cir.1942), the Court stated that jurors should be instructed:

... that they should consider the character evidence along with all of the other evidence in the case and that, when all of the evidence has been considered, if a reasonable doubt as to the defendant's guilt then existed, it was their duty to acquit....

See also United States v. Klass, 166 F.2d 373 (3d Cir.1948) (in banc); United States v. Frischling, 160 F.2d 370 (3d Cir.1947). None of these cases required that the district court give, when requested, a "standing alone" charge such as the one Kaufmann said it might properly reject.

In United States v. Baysek, 212 F.2d 446, 447-48 (3d Cir.), cert. denied, 348 U.S. 836, 75 S.Ct. 49, 99 L.Ed. 659 (1954), the district judge charged the jury that character evidence "of itself" or "alone" may raise a reasonable doubt but then stated, "If, however, you are satisfied the Defendant is guilty, you should convict him, notwithstanding proof of good character." In affirming the conviction, Judge Maris explained that this last sentence did not undo the "very full and fair statement of the duty of the jury to consider the character evidence with the other evidence in the case and to acquit the defendant if the character evidence, either alone or considered with other evidence, raised a reasonable doubt of his guilt." 212 F.2d at 448. While the Baysek decision approved a "standing alone" charge,...