United States v. Fernandez, 73-1446.

• Decision Date: 28 June 1974
• Docket Number: No. 73-1446.,73-1446.
• Citation: 496 F.2d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Luis Alba FERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1294 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Luis Alba FERNANDEZ, Defendant-Appellant.

No. 73-1446.

United States Court of Appeals, Fifth Circuit.

June 28, 1974.

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

William S. Sessions, U.S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Fernandez appeals from his conviction before a jury, judgment and sentence under six counts of a nine-count indictment charging him with possessing, forging and uttering three United States Treasury checks allegedly stolen from the United States mails. He alleges as error: (i) the failure of the trial judge to charge the jury as to the presumption of innocence; (ii) prejudicial comments made by the prosecuting attorney in final argument concerning appellant's prior criminal record and the failure of the trial judge to give limiting instructions as to the proper use of this evidence by the jury, and (iii) the lack of sufficient evidence to support conviction as to Counts 7, 8 and 9 involving one of the checks allegedly possessed, forged and uttered. Finally the jurisdiction of the federal courts to entertain the case is challenged because the crimes, if committed at all, took place outside the territorial jurisdiction of the United States, in Juarez, Chihuahua, Mexico.

We determine that the court had jurisdiction to try appellant's case, but find that reversible error occurred below when the trial judge failed sufficiently to instruct the jury as to the presumption of innocence in the special circumstances of this trial involving the jury argument. In view of our remand, we do not discuss the sufficiency of the evidence.

I. FACTUAL BACKGROUND

In view of the questions raised a factual summary is necessary. In June and August, 1971, Social Security checks drawn on the U.S. Treasury payable to Maximo Garcia, Lynn D. Hay, and Librado Castillo failed to reach the payees at their addresses in El Paso, Texas, all within a six block area on Wyoming Street. The mailing of the checks was stipulated at trial. Testimony of the individual payees established that the checks were never received by them. It appeared from the endorsements, stamps, and other evidence, that the checks had been negotiated in Juarez, Mexico, directly across the International Boundary, the Rio Grande River, from El Paso, by individual(s) posing as the payees. Leads developed focusing the investigation on the appellant, Miguel Luis Alba Fernandez, and another. In June 1972, a nine-count indictment charging the appellant with (a) possessing,¹ (b) forging and (c) uttering² the three checks was returned by a Western District of Texas grand jury at El Paso, Texas. Counts 1, 2 and 3, respectively, charged that the appellant had possessed, forged and uttered a Treasury check made payable to Maximo Garcia. Similarly, Counts 4, 5 and 6 charged Fernandez with possessing, forging and uttering a Treasury check payable to Lynn D. Hay, and Counts 7, 8, and 9, respectively, charged him with possessing, forging and uttering a Treasury check payable to Librado Castillo. All the criminal acts involved were alleged to have been committed in Juarez, Chihuahua, Mexico, during June and August of 1971 by Fernandez, "whose last known residence is within the Western District of Texas".

At trial, the government introduced testimony of a clerk from a Juarez shoe store that she had personally cashed the Maximo Garcia check, and that the appellant presented the check to her and endorsed it in her presence. A government witness, a fingerprint identification expert, testified that a fingerprint matching appellant's was present on the Librado Castillo check. A handwriting expert testified for the government that the endorsements on the Lynn D. Hay and Librado Castillo checks were probably — though not certainly — made by the appellant. The appellant testified in his own behalf and denied that he had ever been in possession of any of the three checks forming the basis of the indictment. He stated that he had resided in the United States since a year before he entered the United States Army in 1964. The jury returned a verdict finding the appellant guilty on Counts 1 through 3 (Garcia check) and 7 through 9 (Castillo check), and not guilty on Counts 4 through 6 (Hay check).

II. JURISDICTION

Our first consideration is addressed to the claim of lack of jurisdiction below over the offenses charged. The appellant's timely motion to dismiss the indictment for lack of jurisdiction was denied prior to trial. He renews the attack here that the courts of the United States lack jurisdiction to try him for criminal acts charged to have taken place in Juarez, Mexico, and not in the United States. The point is lacking in substance. Under the theory of objective territorial jurisdiction, the court below had the right to charge and try Fernandez for the indictment offenses. This theory originated in Strassheim v. Dailey, 1911, 211 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, 738, where the Court held, per Mr. Justice Holmes: "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of harm as if he had been present at the effect, if the state should succeed in getting him within its power." We followed Strassheim in Rivard v. United States, 5 Cir.1967, 375 F.2d 882, 887, cert. denied sub nom. Groleau v. United States, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181. The theory is applicable to this case.

The case law makes clear that the alleged acts of possessing, forging and uttering the Garcia and Castillo checks in Juarez were acts "intended to produce and producing detrimental effects within the United States," specifically preventing the normal disbursement of Social Security funds to those lawfully entitled to receive such funds. Cf. Leonard v. United States, 9 Cir.1963, 324 F.2d 911, 913.³

III. THE PRESUMPTION OF INNOCENCE

Prejudicial error is asserted by reason of the failure of the trial judge to inform the jury, in his final instructions or at any other point in the trial, that appellant was entitled to be presumed innocent until proven guilty beyond a reasonable doubt. The government contends that the court's very complete charges that proof must be beyond a reasonable doubt and defining reasonable doubt informed the jury in practical effect as to the presumption of innocence.

The court's instructions as to reasonable doubt included the following:

"In a criminal case such as this, there is absolutely no obligation for the Defendant to prove his innocence. The burden of proving his guilt upon any one of the nine counts in the indictment beyond a reasonable doubt rests on the prosecution. That burden never shifts and that burden cannot be sustained unless and until the proof offered by the government in the case convinces you beyond a reasonable doubt of the guilt of the defendant.

"Now, I\'m required to define the words `reasonable doubt\'. By the term reasonable doubt which is used in this charge, I mean a doubt based upon reason arising out of the evidence or lack of evidence in the case. A reasonable doubt is such doubt as leaves the juror\'s mind so undecided that that juror does not have an abiding conviction of the Defendant\'s guilt after a full and fair consideration of all of the evidence in the case. A reasonable doubt is such doubt as would cause a reasonable, thoughtful and prudent person to hesitate to act if confronted with a question of importance concerning his or her own affairs. On the other hand, reasonable doubt does not arise from a mere conjecture, speculation or whim, nor does it arise from a reluctance to convict a Defendant through a feeling of sympathy or mercy. A reasonable doubt is a conscientious belief arising only after a calm, dispassionate and impartial consideration of all of the evidence. It\'s not necessary for the Government to prove the guilt of the Defendant beyond all possible or conceivable doubt. If that were the rule, few persons however guilty they might be would ever be convicted. It is practically impossible for a person to be absolutely and completely convinced upon a fact, which, by its very nature, is not susceptible to exact and precise mathematical proof and certainty.

"In consequence therefore, the law is such that in a criminal case, it is sufficient that the Government or prosecution establish the Defendant\'s guilt on any count beyond a reasonable doubt, which I\'ve defined reasonable doubt for you, rather than and not necessarily on all possible or conceivable doubt.

"It therefore becomes your duty to carefully consider all of the evidence before you, and if as a result of such evidence you can and do entertain a reasonable doubt as to the guilt of the accused on any one of these nine counts, then you should so find the Defendant innocent, and it will be your duty to give the benefit of the doubt to the Defendant in any case where you have such doubt. If, on the other hand, all of the evidence when carefully examined and considered by you produces in your mind a conviction or a belief of the guilt of the accused beyond a reasonable doubt, you can then be said to be free from reasonable doubt and should accordingly return a finding of guilty as to each count on which you have no reasonable doubt."

And again at the close of his instructions:

"Now, in summary and conclusion, if the Government has established each and all of the essential elements contained and charged in any one count in the grand jury indictment beyond a reasonable doubt, you should find the defendant guilty on that count. On the other hand, if you find that the government has not established or has failed to establish each and every one and all of the essential elements in any one of such

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