United States v. Gallishaw
| Decision Date | 08 June 1970 |
| Docket Number | No. 292,Docket 32940.,292 |
| Citation | 428 F.2d 760 |
| Parties | UNITED STATES of America, Appellee, v. Ernest GALLISHAW, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Phylis Skloot Bamberger, New York City (The Legal Aid Society, Milton Adler, New York City, on the brief), for defendant-appellant.
David G. Trager, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for the Eastern District of New York, on the brief) for appellee.
Before HAYS, ANDERSON and FEINBERG, Circuit Judges.
Ernest Gallishaw appeals from his conviction of conspiring to rob a bank, 18 U.S.C. § 371, after a jury trial in the United States District Court for the Eastern District of New York, Jacob Mishler, C. J. Because of a basic error in a supplemental charge to the jury, we conclude that we must reverse the conviction.
Appellant was indicted with five other defendants in a four-count indictment and was tried on Counts One, Two and Four. Counts One and Two charged him with substantive crimes in the robbery of a named bank in Queens, 18 U.S.C. §§ 2113(a), (d) and 2. On these counts, after an eight-day trial, the jury failed to agree. On Count Four, which contained the conspiracy charge, appellant was convicted. Two other defendants, Otis Thompson, also known as Thomas, and Wigberto Carballo, pleaded guilty to Count One; another defendant, Manuel Marrero, was tried with appellant.
The chief government testimony connecting appellant with the crimes charged was given by Carballo. He testified that on the morning of the robbery, he went with Thomas in a car driven by the latter to a poolroom in Brooklyn. Thomas went into the poolroom and came out accompanied by appellant, who got into another car. Both cars were then driven to a drug store. Thomas and Gallishaw got out of their cars and went into the drug store; Thomas returned and asked Carballo for the registration for the car, which was in the glove compartment. Carballo handed the registration through the window to Thomas who went back into the drug store. In a few minutes, Thomas and Gallishaw came out. Carballo heard them talking and testified as follows:
The cars were then driven back to where Thomas first picked up Gallishaw. The latter obtained a briefcase which he then put in the trunk of Thomas's car. Thomas and Carballo then went to the home of Silva, a co-conspirator, where the brief case was opened. It contained a machine gun which was actually used later that day to rob the bank in Queens. Thomas told Silva that he had obtained the gun from Gallishaw.
Carballo's testimony was attacked vigorously on cross-examination but this need not concern us. It was not incredible as a matter of law and the jury showed by its verdict that his story was accepted, at least in substantial part. Appellant took the stand and denied that he had anything to do with the bank robbery, claiming that he was at work that day in an OEO-sponsored project. The jury obviously did not credit this testimony and believed that Gallishaw did supply a machine gun to Thomas. The jury was puzzled, however, by one of the fine points in the law of conspiracy, and it was the handling of this aspect of the case that requires reversal.
In his charge to the jury, the judge defined the elements of the substantive crimes charged in Counts One and Two and the conspiracy charged in Count Four. During its deliberation, the jury sent the following note to the judge:
Does the supplying or renting of a gun, which is subsequently used in a bank robbery, constitute grounds for a conspiracy if the person who rents the gun doesn\'t know how or where the gun will be used?
The judge answered the question:
Defense counsel objected to this answer after it was given, but the supplemental charge remained uncorrected. Thereafter, the jury convicted appellant of conspiracy under Count Four, although it was unable to agree on Counts One and Two, which charged him with aiding and abetting the commission of the substantive crimes.
On appeal, we are thus faced with the following situation. The Government's witness, Carballo, testified that when Gallishaw handed over the machine gun, Thomas said he would either "pull the bank job" or "pull something else" with it. This imprecision about both Thomas's intentions and Gallishaw's knowledge of them apparently bothered the jury and led it to inquire about the possibility of participation in a conspiracy "if the person who rents the gun doesn't know how or where the gun will be used." It may be that the jury was asking only whether a conspirator had to know about specific places and times. However, it is at least as likely that this jury, which failed to convict Gallishaw on the substantive offense counts, was asking whether a weapon supplier who knew in a general way that a machine gun was to be used to "pull something" could be said to have joined a conspiracy to rob a bank. The judge answered, in the press of the moment, that the jury could convict if Gallishaw rented the gun with the knowledge "that there was a conspiracy to do something wrong and to use the gun to violate the law." The jury was thus told, in a singularly pointed way, that it could convict on the conspiracy count without deciding whether to believe Carballo's testimony that Thomas had specifically mentioned a possible bank robbery to Gallishaw along with his generalized statement about pulling something.
Under this instruction, the jury may simply have drawn the perfectly reasonable inference that one who rents a machine gun knows it is likely to be used "to do something wrong" or "to violate the law," and therefore convicted Gallishaw, totally without regard to anything Thomas said, of the conspiracy charged in the indictment. A verdict on such a basis would have been improper. In Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959), the Supreme Court stated:
"Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself." Footnote omitted.
On this record, to convict Gallishaw for the substantive crime of aiding and abetting a violation of 18 U.S.C. § 2113(a), the Government would have had to show at a minimum that he knew that a bank was to be robbed.1 To convict him of conspiracy, at the very least no less was required. Cf. Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); Lubin v. United States, 313 F.2d 419 (9th Cir. 1963); Twitchell v. United States, 313 F.2d 425 (9th Cir. 1963); United States v. Buffalino, 285 F.2d 408, 415-416 (2d Cir. 1960). See generally Wechsler, Jones & Korn, Treatment of Inchoate Crimes in the Model Penal Code, 61 Colum. L. Rev. 958, 972-75, 988-93 (1961). Therefore, the charge here was fatally defective. To be sure, as the Court pointed out in Ingram, a conspiracy may have multiple objectives and one who joins it commits a federal offense if "even a minor one" of these is to do an act which perpetrates a federal crime. 360 U.S. at 679-80, 79 S.Ct. 1314. But the jury must be told that the alleged conspirator must have knowledge of that "minor" objective in order to agree to it, id., see United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941), although, of course, such knowledge may be inferred from the circumstances.
The Government argues to us that we should not reverse because there was no proper objection to the supplemental charge and because, in any event, the jury verdict showed that it accepted Carballo's testimony that Gallishaw knew that a bank robbery was intended. As to the former, we cannot in good conscience say that defense counsel's objection in the heat of trial was insufficient, albeit not as precisely made as now, many months later and in a calmer atmosphere. As to the latter argument, the point is that the jury was not required to accept all of Carballo's testimony just because it accepted part of it; indeed, the jury's note may have indicated doubt over whether Thomas mentioned "the bank job" to Gallishaw. As already indicated, it may well be that the jury, understanding that Gallishaw had to know that a bank would be robbed, was asking whether Gallishaw was also required to be familiar with the details of the proposed robbery including the name of the bank. But that would be sheer speculation on our part and is contrary to the implications of some colloquy the judge had with counsel, in which the judge said:
I think the jury may find from that alone that they are going to use it for criminal purposes. We don\'t use machine guns to knock down clay pipes.
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