United States v. Driscoll

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: GEWIN, GOLDBERG, and DYER, Circuit
• Citation: United States v. Driscoll, 454 F.2d 792 (5th Cir. 1972)
• Decision Date: 17 January 1972
• Docket Number: No. 71-1273.,71-1273.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Warren DRISCOLL, Defendant-Appellant.

454 F.2d 792 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Donald Warren DRISCOLL, Defendant-Appellant.

No. 71-1273.

United States Court of Appeals, Fifth Circuit.

January 17, 1972.

COPYRIGHT MATERIAL OMITTED

Joseph A. Calamia, El Paso, Tex. (Court Appointed), for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., Ralph E. Harris, Edward S. Marquez, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant, Donald Warren Driscoll, was convicted by a jury and sentenced on six counts of causing the interstate transport of falsely made or forged securities with the knowledge that the securities were falsely made or forged and with unlawful or fraudulent intent, in violation of 18 U.S.C.A. § 2314.¹ Alleging that the district judge's charge to the jury was incorrect and prejudicial, that his indictment was incorrect, that he was unconstitutionally prevented from testifying in his own behalf, that unconstitutional evidence was submitted to the jury, that the prosecutor's remarks to the jury were prejudicial, and that he was sentenced on the basis of too many offenses, Driscoll appeals. We agree with Driscoll's contentions regarding the trial judge's instructions and the imposition of sentence, and we reverse.

The disputed charge to the jury dealt with fraudulent intent. The trial judge instructed the jury on the relevant law of that subject as follows:

"It is ... reasonable to infer that a person ordinarily intends all the natural and probable consequences of acts knowingly done or knowingly omitted, so unless the evidence in the case leads the jury to a different or contrary conclusion, the jury may draw the inference and find that the accused intended all the natural and probable consequences which one standing in like circumstances and possessing like knowledge would reasonably have expected to result from any act knowingly done or knowingly omitted by the accused."

Emphasis added. We hold that the emphasized portion of this charge was highly prejudicial to Driscoll in that it effectively shifted in the jury's mind the burden of proof regarding the crucial issue of fraudulent intent from the government to the defendant. The law of this court has been settled since another trial judge was reversed on the basis of the following instruction, also on the subject of fraudulent intent:

"It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused."

Mann v. United States, 5 Cir. 1963, 319 F.2d 404, 407, cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474. Emphasis added. See also Henderson v. United States, 5 Cir. 1970, 425 F.2d 134. This court reversed a conviction on the basis of the above instruction, strikingly similar to that given by the trial judge to Driscoll's jury, explaining then that the cast of the emphasized portion was "... tantamount to an incriminating presumption which the jury, absent opposing evidence, could use as a substitute for proof." Mann v. United States, 319 F.2d at 408. The emphasized portion of the Mann charge was enough to lead this court in Mann to conclude that "... the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent." Mann v. United States, 319 F.2d at 409. The emphasized portion of the trial judge's charge to Driscoll's jury suffers from precisely the same malady.

Of course, our extraction from the charge is merely one part of an entire set of instructions, and the judge's instructions must be taken in the context of the entirety of their effects upon the jury. See Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769. However, this contextual approach does not relieve the trial judge of his heavy responsibilities in the area of instructing the jury on the applicable law. A judge's charge is reverentially received by the average jury, be it delivered extemporaneously or carefully scripted. Although such charge on appellate examination will be considered as a cosmos, we must nevertheless be certain that comets of unwisdom are deflected as the charge of the trial judge takes its orbital flight into the jury room. See Bollenbach v. United States, 1946, 326 U.S. 607, 66 S.Ct. 402, 90 L. Ed. 350.

In Driscoll's case the portion of the charge extracted might well be reflective of the entirety of the charge. While the trial judge did give other instructions on the question of fraudulent intent, we conclude that the additions only compounded the prejudice. The trial judge returned to the intent question in the following terms:

"The evidence is practically undisputed, but the question is the inference to be drawn from it.... You the jury have a right to find a person not guilty if you want to, even though the evidence points to his guilt, that\'s—comes in your right, but as a fair and impartial juror, fair to the government, fair to the public, if the evidence has established in your mind beyond a reasonable doubt, then you should find a verdict of guilty against the defendant."

By advising the jury that it was free to return a verdict of not guilty "even though the evidence points to his guilt," following closely on the heels of the intent charge complained of earlier, the trial judge added substantially to our fears that the jury envisioned the burden of proof as resting on Driscoll.

Moreover, even if part of a charge be taken within the context of the whole, if that part so overwhelms the fairness and efficacy of the entire charge, then obviously a conviction based on that charge cannot stand. We conclude that the trial judge's statement regarding production of evidence on the question of fraudulent intent had precisely that overwhelming effect. The trial judge himself pointed out in his instructions, correctly we believe, that the question of guilt or innocence in Driscoll's case really sifted down to the issue of fraudulent intent.

"Now, there\'s no dispute—Mr. Calamia Driscoll\'s counsel stated in his argument to you and clearly so that the check was transported and caused to be transported, so that essential part of the indictment is complied with. It was a false and forged security. There\'s no question about that. That has been clearly established, that it was a falsely made and forged security, and it leaves the question of whether or not the defendant unlawfully—with unlawful and fraudulent intent transported, did transport or cause to be transported falsely, and which said check is alleged to—was to his knowledge falsely made and forged, so that\'s what you get down to in this case."

Emphasis added. This part of the charge can be understood to conclude that fraudulent intent was the only real issue in Driscoll's case. That conclusion is entirely correct, given the fact that other necessary elements of the crime were either admitted or very clearly established. The fact that the burden of proof was shifted to Driscoll on a crucial issue in the case and the fact that the crucial issue in question was the subjective issue of intent are important appellate tests which the trial judge's charge has utterly failed to pass:

"Such a shifted burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results."

Mann v. United States, 319 F.2d at 409; compare Helms v. United States, 5 Cir. 1964, 340 F.2d 15. The fact that the trial judge made other references in his charge to the burden of proof does not salve what was a fatal wound to the conditions of the trial with regard to the issue of intent:

"Even though the trial judge did give an accurate charge on the necessity of intent and the burden of proof, we hold that to leave the jury with that part of the charge complained of in this case was not cured by what was said elsewhere in the charge. Instructions to the jury must be consistent and not misleading. The fact that one instruction is correct does not cure error in giving another inconsistent one."

Mann v. United States, 319 F.2d at 410. See Perez v. United States, 5 Cir. 1961, 297 F.2d 12. Because the charge in its entirety was prejudicial in that it effectively shifted the burden of proof regarding fraudulent intent from the government to the defendant, Driscoll, we reverse the conviction that was returned on the basis of that charge.

In his second contention, Driscoll argues that he was incorrectly indicted, or, more appropriately, that he was not tried for the offense on which he was indicted. The indictments against Driscoll charged him generally with fraudulent interstate transport of "securities," as set forth in paragraph three of 18 U. S.C.A. § 2314, supra note 1, but charged him specifically with fraudulent interstate transport of specific traveler's checks knowingly falsely made and forged.² Driscoll's actual offense was the fraudulent interstate transport of a "traveler's check bearing a forged countersignature," as set forth in paragraph four of 18 U.S.C.A. § 2314, supra note 1. Driscoll raises the issue entirely on the basis of Streett v. United States, 8 Cir. 1964, 331 F.2d 151, which held that a traveler's check with the genuine signature of the original owner attached was a complete security, and, therefore, that a forged countersignature could not make the instrument a "forged security" within the ambit of paragraph three of the Code provision. But cf. Berry v. United States, 5 Cir. 1959, 271 F.2d 775, cert. denied, 362 U.S. 903, 80 S.Ct....