United States v. Fiorito, 13360

• Decision Date: 19 March 1962
• Docket Number: 13361.,No. 13360,13360
• Citation: 300 F.2d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl FIORITO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Theodore DE ROSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F.2d 424 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Carl FIORITO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Theodore DE ROSE, Defendant-Appellant.

Nos. 13360, 13361.

United States Court of Appeals Seventh Circuit.

March 19, 1962.

Martin S. Gerber, George B. Collins, Anna R. Lavin, Julius Lucius Echeles, Chicago, Ill., for appellants.

James P. O'Brien, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before KNOCH, CASTLE, and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

The defendants, Carl Fiorito and Theodore DeRose, were convicted, following a jury trial, on a two-count indictment charging each with violations of 26 U.S. C.A. § 4705(a) and 21 U.S.C.A. § 174. Fiorito was sentenced to a term of twenty years on each count, the sentences to run concurrently. DeRose was sentenced to concurrent ten year terms. Each of the defendants appealed.

Both appeals present claims by the respective defendant of reversible error arising from statements made by the trial judge to the jury preliminary to the giving of the formal instructions, rulings on the admission of testimony, the instructions given, and permitting exhibits to be taken to the jury room. DeRose, in his appeal, makes the additional contention that his motion for severance was improperly denied. Fiorito, in his appeal, additionally contends that the evidence is insufficient to support his conviction, that reversible error occurred in the disposition of motions and the giving and rejection of instructions relating to entrapment, rulings excluding testimony, improper impeachment of defense witnesses, prejudicial misconduct of the prosecutor and the government's main witness, and the denial of material sought under the provisions of 18 U.S. C.A. § 3500.

In the interest of complete accuracy the trial judge's statements to the jury, of which complaint is made, are set forth verbatim and in the context in which they were made:

"I have discussed these instructions with the lawyers before they made their final arguments, so when they referred to some of the instructions, of course I discussed it with them in chambers. * * * We are giving you the instructions. I want you to listen to them carefully, because you are not going to have them with you when you deliberate. I want you to remember them and there is a reason for that too.

"I want to say to you that when I told you you cannot ask any questions I omitted one important thing: When a juror asks a question which could be very well improper and not according to the rules of evidence, it becomes very embarrassing for a lawyer to make an objection, you understand that. When I ask him a question, and I haven\'t, and I could ask a lot of them, they cannot embarrass me with them or I cannot embarrass them, because we have the training and the capacity and the understanding and the friendship, but when the juror asks a question and they have to sit in judgment on the case, it becomes embarrassing for a lawyer to object to it and if he does, it is in the record and if he doesn\'t, it antagonizes a juror. When these rules are promulgated they are done for the best interest of justice.

"There is not a case in the world, as a matter of fact there is nothing in the world that has ever been done where somebody cannot ask a question. You cannot take twelve or thirteen minds and try to prevail upon all of them. There is always some doubt in the case about some little thing, but when you get back in the jury room and talk it over amongst yourselves you will find the answers, and if there is a shortcoming in the case one way or the other, it is just part of the case. We don\'t guarantee you an ironclad, perfect, well-polished, complete litigation. We do the best we can, both sides do the best they can and that\'s it. That\'s what you have got to wrestle with, and that is what I have got to wrestle with. So don\'t feel badly about not being able to ask questions.

"I shouldn\'t even explain that to you, but I wanted to do that, because I wanted you to know that everything has a good reason, valid reason. We don\'t just do it out of caprice or unpleasantness. We would like to have you in on the whole thing. The same with the trial of a case. I had certain reasons when I sustained an objection, because I don\'t want to retry it again, I don\'t want to rehash certain parts of it again. You have heard it. If you forget it, that is part of the game, and if I forget it, that\'s part of the game. That\'s why we have a court of appeals, they will reverse me if I\'m wrong. This is not the final judgment, there is a court of appeals to review me and a Supreme Court to review them. That\'s why we have a great system here.

"Be happy and content, and I am going to give you my instructions and I will bid you goodbye."

The trial judge then proceeded with the formal instructions.

The defendants contend that the references to "doubts" and "shortcomings" and the manner of their resolution, the injunction against any questions, the observation that if the jury "forget it, that is part of the game", and the statement that "this is not the final judgment" coupled with the reference to review on appeal all constitute reversible errors. Defendants urge that these statements to the jury had the effect of depriving the defendants of the protection against conviction where reasonable doubt exists and of minimizing the jury's function, obligation and responsibility.

The government argues that the statements were not prejudicial when considered in their context and against the background that the trial judge was concerned over information that during the course of the trial a juror had wanted to ask questions¹ and was merely explaining the reason why the court would not permit it.

The flaw in the government's argument is that...