United States v. Farina
Decision Date | 17 July 1950 |
Docket Number | No. 245,Docket 21694.,245 |
Citation | 184 F.2d 18 |
Parties | UNITED STATES v. FARINA et al. |
Court | U.S. Court of Appeals — Second Circuit |
Rudolph Stand, New York City, for defendant-appellant Joseph Farina.
George J. Todaro, New York City, for defendant-appellant Peter DiPalermo; Vine H. Smith, Brooklyn, N. Y., of counsel.
Harry G. Anderson, New York City, for defendant-appellant Daniel Sperdutto.
Irving H. Saypol, United States Attorney, New York City, for United States of America, plaintiff-appellee; Bruno Schachner and John D. Kelly, Assistant United States Attorney, New York City, of counsel.
Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.
Writ of Certiorari Denied November 6, 1950. See 71 S.Ct. 121.
The defendants Farina and DiPalermo were convicted under all three counts of the indictment mentioned above. The defendant Sperdutto was acquitted under the first count, charging him with possession of counterfeit currency, but convicted under the second and third counts. Farina does not question the sufficiency of the evidence to support the verdict against him. DiPalermo and Sperdutto each made weak contentions that the evidence was insufficient to convict. It is however perfectly plain that there was direct proof against DiPalermo and that his argument as to the insufficiency goes merely to the weight of the evidence and that such questions were for the jury. In the case of Sperdutto there was evidence that he acted as a lookout for the other two defendants at the time the counterfeit money was sold and that immediately afterwards he got into a car which he had furnished, started to drive away with Farina, who had entered the same car, and, on seeing the federal agents, jumped out of the car and attempted to escape. He denied that he knew who owned the car, though there was proof that it was originally registered in his name. Later he admitted that it belonged to his girl friend who allowed him to use it. The woman to whose name the car had been transferred from that of Sperdutto said she did not have a driver's license and could not drive, but claimed that she had paid him $750 cash for the car and had allowed him the use of it on the occasion in question. The jury might well have believed that Sperdutto's attempt to disclaim any relation to the car in which he and Farina were driving away involved numerous falsehoods and only added greater weight to the inference of guilt which they might draw from his flight. The claim of DiPalermo and Sperdutto that there was not evidence against them sufficient to go to a jury is clearly without substance.
The only grounds for reversal worthy of serious consideration are the contentions of all the defendants that the trial judge erred in his charge because of his statements about the "presumption of innocence" and his definition of "reasonable doubt." The entire instruction to the jury as to presumption of innocence, reasonable doubt, and burden of proof was as follows:
In criticizing the judge's charge regarding the "presumption of innocence," the defendants have particularly objected to the words that: In his definition of reasonable doubt, they specially criticized the statement that: "A reasonable doubt is a doubt for which a juror who says that he has such a doubt about a defendant's guilt, can give a reason for entertaining."
No objection was taken to any part of the charge, and we are satisfied that nothing said in the course of it calls for a reversal.
The statement that the presumption of innocence was not intended as a bulwark behind which the guilty might hide was in a general sense true. Objection to it will only lie if it might lead a jury to suppose the presumption could not be invoked until a defendant had dispelled proof of his guilt. But such was not the effect of the charge, for the judge had told the jury that a defendant was not bound to prove that he did not commit the crime, but that "the Government must prove beyond a reasonable doubt that he did commit it," and that "the burden of establishing the guilt of each * * * beyond a reasonable doubt rests upon the Government, and this burden never shifts." A decision of the Fifth Circuit as to the proper meaning of the presumption of innocence was recently rendered in Gomila v. United States, 146 F.2d 372, and is strongly relied on by the appellants. The instructions there might perhaps have led a jury to suppose that a defendant could only invoke the presumption after he had established his innocence. Moreover, the Fifth Circuit reversed a conviction, not on the single point that we have mentioned, but because of what was termed a "cumulation of errors" on the part of the trial court. In the case at bar the judge expressly stated that the presumption "inures to all defendants charged with the commission of crime" and added if "the Government produces evidence which rebuts the presumption of innocence, and if the evidence convinces you of the guilt of a defendant, beyond a reasonable doubt, then the presumption of innocence ceases to exist as to that particular defendant." These instructions were so clear and explicit, that any generalization indulged in by the judge to the effect that the presumption was not intended as a bulwark behind which the guilty might hide could not, in our opinion, mislead the jury regarding the duty of the Government to go forward with convincing proof before a verdict of guilty could properly be rendered.
The criticism of the judge's statement that reasonable doubt is a doubt for which a juror "can give a reason for entertaining" is one which has long produced some divergence of opinion in the courts. If the judge had said that a reasonable doubt is one which a reasonable man might entertain, the instruction might not have been illuminating but would hardly have been objectionable to anyone. The appellants argue that the charge given might lead some juryman to suppose that he would be called upon to give his reason. This objection seems fanciful and has already been rejected by this court. Marshall v. United States, 2 Cir., 197 F. 511, 512. The appellants also say that the charge leaves too little room for doubts which cannot be formulated by jurors, but which a reasonable man still might entertain. This contention was rejected as a ground for reversal in our decision in United States v. Woods, 2 Cir., 66 F.2d 262. The only federal decisions dealing with such a charge on reasonable doubt as we have discussed which reached conclusions contrary to our own are those of the Eighth Circuit in Pettine v. Territory of New Mexico, 201 F. 489, and Ayer v. Territory of New Mexico, 201 F. 497, and of the Ninth Circuit in Owens v. United States, 130 F. 279. The Ninth Circuit decision, however, was afterwards distinguished in Griggs v. United States, 158 F. 572, and overruled by that court in Louie Ding v. United States, 9 Cir., 246 F. 80. See also Young v. Territory of Hawaii, 9 Cir., 160 F.2d 289. Perhaps it was unwise to vary the customary formulae employed in charging juries upon the presumption of innocence and reasonable doubt. But it would seem most unreasonable to upset convictions where as here the substantive proof against the defendants was ample, where for lack of a timely objection no opportunity was given to the judge to reformulate his charge, and where the charge as a whole as well as the conduct of the trial was eminently fair....
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