United States v. Lefkowitz

• Decision Date: 10 November 1960
• Docket Number: Docket 26185.,No. 38,38
• Citation: 284 F.2d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George LEFKOWITZ, Joseph P. Dryja, Richard Emond, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

284 F.2d 310 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. George LEFKOWITZ, Joseph P. Dryja, Richard Emond, Defendants-Appellants.

No. 38, Docket 26185.

United States Court of Appeals Second Circuit.

Argued September 27, 1960.

Decided November 10, 1960.

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Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y. (Judith Gelb, Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Joseph R. Crowley, New York City, (Manes, Sturim & Laufer, New York City, on the brief), for defendant-appellant Lefkowitz.

James J. Hanrahan, New York City, for defendant-appellant Dryja.

Abraham Lebenkoff, New York City (Lebenkoff & Freundlich, New York City, on the brief), for defendant-appellant Emond.

Before LUMBARD, Chief Judge, and TUTTLE^* and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

George Lefkowitz, Joseph P. Dryja and Richard Emond appeal from judgments of the District Court for the Eastern District of New York adjudging them to be convicted, upon a verdict of guilty, of violation of 18 U.S.C. § 659. We are constrained to reverse the convictions and order a new trial for what we deem prejudicial errors in the instructions to the jury.

The indictment charged that defendants received and had in their possession 352 cases of shoes and other merchandise valued at some $40,000, stolen from a motor truck while moving as an interstate shipment from Dorchester, Massachusetts, to New York City, knowing the cases to have been stolen. The truck itself was stolen while parked on a street near the J. A. Garvey Transportation Company terminal in Long Island City in the early morning of February 19, 1959. A few hours later it was backed into a warehouse in Brooklyn owned by Lefkowitz; there it was partly unloaded. Later in the day the truck was driven out of the warehouse and parked a few blocks away where an F. B. I. agent found it. Two days later F. B. I. agents interviewed Lefkowitz. He freely disclosed the receipt of the merchandise, claimed that this had been preceded by a personal inquiry and a telephone call from a man theretofore unknown to him and still known only as "Lou," and contended, as he did later at the trial, that the transaction was innocent on his part. Two of Lefkowitz's employees, Plummer and Johnson, identified Emond as having been present at the warehouse during the unloading of the truck; Plummer said Emond was "under the wheel" and then helped in the unloading. This identification testimony was challenged. Two men in addition to the driver were on the truck when it entered the warehouse. The government's theory is that Dryja either was one of them or came to the warehouse as a customer; the evidence offered to support this we shall discuss below. Lefkowitz took the stand in his own defense and called seven witnesses to his good reputation. Neither Dryja nor Emond testified; both offered evidence intended to show their presence elsewhere at the critical times.

At the request of the government the court charged the jury:

"Possession of recently stolen goods casts upon those holding them the burden of explaining their possession and you may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence."

Lefkowitz's counsel promptly excepted; Emond's counsel later joined in the exception.¹ After having deliberated for some time, the jury returned to ask the court the following question:

"Regarding your charge: Did your Honor state that in respect to recently stolen merchandise, that the burden of proof rests with the defendant that he did not know the merchandise was stolen if he was in possession of same?

"Please explain burden of proof."

The court answered:

"The burden of proof rests upon the Government throughout the case, that is No. 1.

"Now, I quoted from an authority having to do with the possession of recently stolen goods.

"That opinion says that: `Possession of recently stolen goods casts upon those holding them the burden of explaining their possession and you may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence.\'

"Now, that may be rather a close question. Bear in mind what I said, the burden of proof is always on the Government. In considering whether the Government has sustained its burden of proof, you have the right further to consider whether a defendant shown to be in the possession of recently stolen goods has explained to you facts which would enable you to conclude that he was innocent.

"Have I made it reasonably clear, gentlemen?"

It has long been held that "Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence." Wilson v. United States, 1896, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090. This general rule applies to the specific offense here charged. Pearson v. United States, 6 Cir., 1951, 192 F.2d 681, 689. On the other hand, in United States v. Sherman, 2 Cir., 1948, 171 F.2d 619, 624, certiorari denied sub nom. Grimaldi v. United States, 1949, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738, Judge Learned Hand criticized an instruction that one in possession of recently stolen goods "is presumed to know that they were stolen," saying:

"* * * While we have held a number of times that the jury may find in the accused\'s unexplained possession of stolen goods enough evidence to convict, we have never intended to indicate that the jury should be directed that it was required by a rule of law to make this inference. In discussions among lawyers and judges of the difference between a permissible inference and a presumption, the terminology may be unimportant. But the jury may be misled by the word `presumption\'; and here it may have interpreted that word as far stronger than a permissible inference."

See, accord, Balman v. United States, 8 Cir., 1938, 94 F.2d 197, 199; Barfield v. United States, 5 Cir., 1956, 229 F.2d 936, 939, 940; 9 Wigmore, Evidence (3d ed.), p. 417. The same reasoning condemns an instruction couched in terms of "burden" on the defendant, even when, as here, it is joined with an entirely proper phrasing in terms of inference. United States v. Allegrucci, 3 Cir., 1958, 258 F.2d 70, 73-74. The language of the judge's charge, which was repeated on the jury's return, appears to have been derived from the opinion in Yielding v. United States, 5 Cir., 1949, 173 F.2d 46, 48. However, the transcript of record in the Yielding case shows that no such language was used in the charge, and the Barfield case, supra, in the same circuit, creates the gravest doubt whether such a charge would be sanctioned there. The error in the charge was not corrected by the answer to the jury's inquiry; indeed, it may have been aggravated. True the judge reemphasized that "the burden of proof is always on the Government." However, not only did the instruction repeat the "burden of explaining" language but its final phrase may well have left the jury with the impression that the defendant was required to establish his innocence rather than to raise a reasonable doubt of his guilt.²

If it be argued that these criticisms are an undue refinement, the answer is twofold. As said in Balman v. United States, supra, 94 F.2d at page 200, "we feel it to be important that no precedent should be indulged which may possibly lead to laxity of statement in a matter so important in criminal proceedings. * * *" Moreover, here we know the jury was concerned; and the Supreme Court has emphasized, over a dissent making the very point of over-nicety, the crucial importance of completely accurate statement by the judge at that critical moment in a criminal trial when the jury interrupts its deliberations to seek further explanation of the law. Bollenbach v. United States, 1946, 326 U.S. 607, 611-614, 616-618, 66 S.Ct. 402, 90 L.Ed. 350.

Lefkowitz also asks reversal because of three remarks in the prosecutor's summation. Only one of these warrants comment. The argument of Lefkowitz's counsel, Mr. Heller, had stressed the defendant's good business and personal reputation. The prosecutor's counter to this was as follows:

"If you went that far you would say that is fine. This is a speech which would get Mr. Lefkowitz in any Rotary, in any Lions Club, in any Moose, or in any fraternal organization. As far as he went Mr. Heller was perfectly correct.

"But he didn\'t go far enough.

"There is another side to Mr. Lefkowitz\'s character, another side that Mr. Heller doesn\'t know; another side that lives on the periphery of the law; another side that is a parasite which lives on the unjust earnings of others while maintaining the dignified cloak of a civilized human being in society, a man who says to the world, here I am. I am a pillar of society.

"And yet in his other hand he receives stolen goods and profits by the crimes of others. This is the parasite that I ask you to convict. And this is why I ask you to do so —

"Mr. Heller: These remarks are wholly inflammatory. They are not based on any evidence that Mr. Lefkowitz is a parasite, and that he lives off the fruits of other people.

"The Court: It is customary for lawyers to use arguments that they think are persuasive. The jury understands that this is an argument and not a statement of the facts."

Apart from the needlessly colorful language, the peculiar vice of the argument lay in the implication, perhaps unintended, that the government knew a good deal about Lefkowitz dehors the instant case "that Mr. Heller doesn't know" and that was not in evidence. In view of our ruling with respect to the charge, we need not...