United States v. Gaines

• Decision Date: 24 September 1971
• Docket Number: No. 19404,19405.,19404
• Parties: UNITED STATES of America v. Eugene GAINES, Appellant in 19405, et al. Appeal of Reginald DENT, No. 19404.
• Court: U.S. Court of Appeals — Third Circuit

450 F.2d 186 (1971)

UNITED STATES of America v. Eugene GAINES, Appellant in 19405, et al. Appeal of Reginald DENT, No. 19404.

Nos. 19404, 19405.

United States Court of Appeals, Third Circuit.

Argued January 28, 1971.

Decided September 24, 1971.

As Amended November 1, 1971.

Hal F. Doig, Zink, Shinehouse & Holmes, Philadelphia, Pa., for Reginald Dent.

Alex Bonavitacola, Robinson, Greenberg, Lipman, Kattelman & Bonavitacola, Philadelphia, Pa., for Eugene Gaines.

Thomas J. McBride, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before FORMAN, ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

In a four-count superseding indictment (Cr. 70-318), Eugene Gaines, Reginald Dent, the appellants, and John Dent¹ were accused (1) of conspiracy under 18 U.S.C. § 371 to commit the offenses named in the following substantive counts; (2) unlawfully entering the Continental Bank & Trust Company (the Bank) at Adams Avenue and Howland Street, Philadelphia, Pennsylvania, insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(a); (3) taking and carrying away $24,598.00, in violation of 18 U.S.C. § 2113(b); and (4) putting in jeopardy the lives of certain employees of the Bank and witnesses while committing the above-named offenses, in violation of 18 U.S.C. § 2113(d).

Reginald Dent and Eugene Gaines were brought to a jury trial and took the stand in their defense, but were convicted of all counts in the indictment. Each was represented by separate counsel, who made motions for a new trial, which were denied. Each was sentenced to a term of 25 years, subject to a study and resentencing as provided by 18 U.S.C. § 4208(b). On completion of the study, Eugene Gaines was resentenced to six years on the fourth count under 18 U.S.C. § 4208(a)(2), and imposition of sentence on Counts 1, 2 and 3 was ordered suspended.^1A The record discloses no further disposition of the sentence of Reginald Dent. Appellants filed timely notices of appeal.^1B

At the trial there was testimony that in mid-morning of November 26, 1969, the Bank was entered by four men, who robbed it at gun point of $24,598.00. The robbers made their getaway in a U-Haul auto-van, which was shortly overtaken by the police in the vicinity of the Bank. Three men, Reginald and John Dent and James A. Smith were apprehended in the van. The fourth man was seen to flee from the van. Also found in it were two shotguns and the precise amount of stolen money, $24,598.00. Within a half-hour of the robbery, Eugene Gaines was picked up by the police not far from the Bank.

Appeal of Reginald Dent No. 19,404

Mr. Dent's first contention is that the charge of the District Judge was erroneous in that he used prejudicial language and, in effect, usurped the province of the jury in its prerogative of solely determining Mr. Dent's credibility.

In summarizing the evidence concerning Mr. Dent, the District Judge stated as follows:²

"The evidence against Reginald Dent is more cumulative than against Eugene Gaines. He was identified by Catherine Degirolamo and Marjorie Griffith. He was identified in court before you without any hesitancy. He was identified at a pretrial proceeding in connection with this case when he was sitting in the third or fourth row back with six or seven other young Negro males. Marjorie Griffith identified him on that occasion. He was identified by Miss Griffith immediately after the robbery when the men that the police apprehended were taken back to the bank. He was identified at the lineup later that day. He doesn\'t deny having been there. He testified that he just happened to be around that corner that day when all of a sudden his brother and three other men came running out of this bank and said, `Come on, Reginald,\' and he hops into the truck. Now, can you believe that or is this another coincidence?

"You determine in your own mind whether there is any substance to his defense whatever.

"He Mr. Dent more or less had to admit he was in the truck because there was just no question about his being arrested in the back of the truck with a shotgun in his hand, although he denied that.

"The police officer, Officer Moore, who, thank God, was not a murder victim as a result of this affair, testified.

"So he explains being in the back of the truck by saying he just happened to be standing there when these men came out of the bank.

"Well, members of the jury, I say to you sincerely it is your function to make the final factual adjudication in this case, and although I am permitted by law to express an opinion to you so long as I leave the final say to you, I don\'t ordinarily, and I won\'t in this case.

"This is a very, very serious crime, and you have a very, very serious duty to perform here. I submit to you that you should not permit yourselves to be fooled by stories that simply don\'t make sense. You are not asked to leave your common sense outside when you get into a jury box. You are asked to bring that into the jury box with you and use it to analyze the testimony and come up with a verdict which makes sense in the light of the evidence you have heard in the case." (Emphasis supplied).

Mr. Dent first contends that the statement, "Now, can you believe that or is this another coincidence?" constituted an instruction to the jury that Mr. Dent was unworthy of belief, and was compounded by the language immediately following, "You determine in your own mind whether there is any substance to his defense whatever." In addition, he argues that this language was accompanied by "sarcastic intonations."

Secondly, Mr. Dent alleges that the language relating to his arrest in the van informed the jury that he was both arrested in the van and that he had a shotgun in his hands. Mr. Dent contends that there was a question whether he had a shotgun in his hands at the time he was arrested and that the trial judge, therefore, attempted to press a disputed issue upon the jury as fact, usurping the jury's function to be the final fact finder. He urges further that the next sentence referring to Officer Moore served to emphasize the prejudice allegedly established.

Thirdly, Mr. Dent complains that the language of the District Judge concerning "stories that simply don't make sense" allegedly following comments on his testimony, again amounted to an instruction that he was unworthy of belief, and constituted reversible error.

It is well settled that a federal judge is not required to refrain from expressions of opinion during his charge to the jury. Unquestionably, any comment by a trial judge concerning the evidence or witnesses may influence a jury considerably, and emphatic or overbearing remarks particularly may be accepted as controlling, thus depriving a defendant of his right to have questions of fact and credibility determined by the jury. If the judge exercises restraint in his comments, however, and makes it clear in his charge that the jury remains the sole determiner of credibility and fact, he has not overstepped the permissible limits of comment. In Quercia v. United States,³ the Supreme Court stated that:

"In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks is necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination."

The Court stated further that:

"This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury `is necessarily and properly of great weight\' and `his lightest word or intimation is received with deference, and may prove controlling.\' This Court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence `should be so given as not to mislead, and especially that it should not be one-sided\'; that `deductions and theories not warranted by the evidence should be studiously avoided.\'"⁴

In the present case, an examination of the language of the District Judge, viewed in light of his complete charge, compels the conclusion that he did not overstep the sphere of proper judicial comment, as defined in Quercia, supra. Mr. Dent's second objection, interpreting the District Judge as conclusively stating that he was apprehended in the van with a shotgun in his hands, falls of its own weight. Mr. Dent admitted that he was arrested in the van, and contested only the alleged fact that he had a shotgun, as the police officer had testified. The plain meaning of the District Judge's statement was that Mr. Dent was arrested in the van, although he denied, in opposition to the testimony of the police officer, that he had a shotgun. Mr. Dent's interpretation is strained and could not have misguided the jurors as he complains. In addition, following almost immediately upon this statement, the District Judge instructed the jury, as he had six times throughout a charge running eleven pages, that they were to make "the final factual adjudication in this case."⁵ This instruction was sufficient to eliminate any possibility of prejudice.

On the other hand, the District Judge's remark concerning the good fortune of Officer Moore was gratuitous and approached the limits of appropriate judicial...