United States v. Interstate Engineering Corporation

Decision Date20 July 1967
Docket NumberCrim. No. 6773.
CourtU.S. District Court — District of New Hampshire




WYZANSKI, Chief Judge.


Mr. Foreman and members of the jury, we have reached what yesterday Mr. Phinney referred to as the penultimate stage of the case. I do not know whether he intended a pun implying that I would write out my Charge. In any event, my Charge is oral and not written, for though I realize how difficult some aspects of this case are my principal object is to talk to you so that you may clearly understand your obligations and the applicable rules of law.

If at any stage you have thought that I have expressed an opinion upon the facts in this case or upon how you should decide this case I assure you you have misunderstood my intention. Neither previously, nor now, nor hereafter do I intend in any way to indicate how you should decide this case.

This has been a very long case. We began a month ago yesterday and this is our 17th day. It is not the longest case that I have ever tried. One ran for five years but fortunately did not involve a Jury. Nonetheless, I am aware that it has been a considerable burden upon you as well as upon the parties and their counsel, and also upon the court reporter, the clerk and many other people in attendance here during this summer session. But the case is one of very great importance. In a real sense every case is important to the parties, and a criminal case is particularly important because, as was pointed out to you in argument, there are at stake precious interests, such as possibly the liberty of the persons involved, and certainly their honor, reputation and pride, and also there is the great interest of the society, of the United States of America and of the people in having justice administered equally and fairly.

Now my Charge is necessarily going to be a long one. It won't be as long as one that I heard a month ago in England. After 42 days of trial Mr. Justice Lawton delivered, as they call it, a summing up, which lasted three days. I hope that mine won't take three hours. However, I have received perfectly properly voluminous requests for instructions, and I want to cover at least in substance most of the principal points that counsel were good enough to draw to my attention and such additional points as have occurred to me.

I am sure that you have felt, as I have, that counsel on all sides have demonstrated great skill and ability, and that their experience and judgment have been of considerable assistance to you as well as to me in bringing this case to this point.

My Charge, I said, will be long, and because it will be long I am going to do a rather unusual thing at the outset by telling you to pay particular attention whenever I talk about the burden of proof, that is the obligation of the Government to prove its case beyond a reasonable doubt as to every essential element, and I want you to note the emphasis that I place upon the three-branched aspects of this case. With respect to the duty of the Government to prove beyond a reasonable doubt with respect to a defendant, before that defendant can be convicted, that he personally, or, in the case of a corporation, an authorized individual acting for the corporation, was a party to a scheme to defraud, that he or the authorized corporate officer or representative personally specifically intended that the mails should be used in connection with that scheme and, third, that he, or in the case of a corporation, the authorized corporate representative specifically intended to defraud, that is to act in a wicked manner.

Now I will say a great deal more about each of those branches of the case but what I have said initially is intended in a way as a sort of headnote or set of red markers so that you will pay particular attention to what seems to me the outstanding aspects of the questions which will come before you.

In a trial of this kind the Judge gives instructions with respect to the law. You are required to follow what the Judge says is the law. A Judge, not least this Judge, makes mistakes with respect to the law. But whenever a Judge makes a mistake with respect to the law, those who believe he has made a mistake among the lawyers at the table have a right to call it to his attention, and if he doesn't correct the mistake they have a right of appeal to the Court of Appeals for the First Circuit, sitting in Boston, and in some appropriate cases ultimately to the Supreme Court of the United States, but you are not to correct any error I make with regard to the law.

The law assumes that you are at least as likely to be mistaken with respect to any attempted correction of law as you are likely to be right and, moreover, we could not tell if you were making an error of law because you would not be making it on the record the way I am at every moment.

You are the judges of the facts in the case and that is a sufficiently burdensome duty. That is to say, it is you, not the Judge and not the lawyers, who are to make up your mind what was the evidence, how much of it was credible, that is to say believable, and it is up to you to determine ultimate questions and preliminary questions of fact.

Anything that counsel have said or anything that I have said or may say about the facts you are entirely free to disregard. I told you the other day how impressed I was by a statement made by Mr. Justice Lawton, when he was addressing a Jury and reminding them that on questions of facts they were not in any way to defer to a Judge merely because the Jury thought a Judge had more experience and therefore might be a wiser fellow with respect to the facts.

There is no reason to believe that a Judge is a wiser man with respect to facts than a juror, and there are many reasons to believe that one Judge is less wise than 12 jurors. 12 jurors represent different points of view. They have different backgrounds. And particularly, let me say, in a case where there is an out-of-state Judge presiding over a Jury drawn from what is called the vicinage, the neighborhood, the Jury is in a much better position than the Judge to determine the credibility of the local witnesses and indeed to form opinions with respect to questions of fact of every kind.

Another famous English Judge, not Mr. Justice Lawton, but Lord Devlin, has said that a Jury is a parliament, a little parliament or Congress. Now if that phrase means that the Jury is representative of the community in formulating standards, there is a great deal of truth in that. Of course, the Jury is not to formulate standards contrary to the written law or the common law. But within certain areas, and particularly, I am inclined to say in the area of determining whether conduct is fraudulent or not, the Jury is a small legislative body.

But let me warn you that in formulating your views of the facts you are not to bring to bear anything except the evidence you have heard in this and the earlier courtroom. You are not to take into account any gossip, if you have heard any, about this company, or these companies, or these defendants, individual or otherwise.

You are to ignore anything you may have seen in the newspapers, or on television, or heard on the radio, or in any way learned about except what you learned here in court.

It would be very improper for you to approach this case upon the basis of some political philosophy, such as that you think that advertising is the catalyst which makes the capitalist system run, or, on the contrary, advertising is a wicked waste of money and people ought to be allowed to purchase in privacy without the intrusion of salesmen. Either kind of philosophy, or any other kind of philosophy which represents your personal economic and political and social views is out of place.

Your function here is to consider the facts as developed here in the light of the instructions of law that I give you.

Now you know very well that this criminal case began with an indictment returned by the Grand Jury. The Bill of Rights provides that no one in a Federal Court can be charged with a serious crime unless the matter is first presented for consideration by a Grand Jury. Grand is a French word "Grande," and means a jury of 23, or not less than 16, in any event.

Now the Grand Jury presumably heard only the evidence which the Government saw fit to offer to the Grand Jury. So far as we know, the usual practice was followed, and the only persons who ever talked to the Grand Jury were the United States Attorney and his assistants and some witnesses that the United States Attorney and his assistants suggested that the Grand Jury should listen to.

The Grand Jury, so far as we know, never heard any of the defendants nor any of their witnesses, and assuredly none of their counsel. All that the Grand Jury did was to come to a conclusion that there was a case which they thought worth listening to, and they made a charge, and that charge is called an indictment.

But the charge is not evidence. It is merely a framework of a complaint, and in this particular case large parts of the indictment have been struck by me even before you were called to hear this case, and I am going to tell you that other parts of the indictment have turned out to be immaterial, or irrelevant, or otherwise not for your consideration. But let me again state most emphatically that the indictment in whole or in part is not evidence. It is a mere complaint or charge.

In this case, as you well know, there remain for trial five individual defendants and two corporations. Each of them is a separate person, the corporations being persons in contemplation of law, and as to each person you are to give separate verdicts, and with respect to each you are to examine most carefully the evidence on an...

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    ...(16 Count Indictment); United States v. Mahany, 305 F.Supp. 1205 (N. D.Ill.1969) (3 Count Indictment); United States v. Interstate Engineering Corporation, 288 F.Supp. 402 (D.N.H. 1967); United States v. McGuire, 249 F.Supp. 43 (S.D.N.Y.1965), affirmed 2 Cir., 381 F.2d 306, cert. denied 389......
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    ...indicates that there is not an accepted distinction between a knowingly false claim and a fraudulent claim. United States v. Interstate Engineering Corp., D.N.H., 288 F.Supp. 402; Travelers Indemnity Co. v. Harris, E.D.Mo., 216 F.Supp. 420. No reason is apparent why only two of the six type......
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