United States v. Small
| Decision Date | 29 December 1972 |
| Docket Number | No. 72-1432.,72-1432. |
| Parties | UNITED STATES of America v. Edward Kenneth SMALL, Jr., et al. Appeal of Samuel Samson ALLEN. |
| Court | U.S. Court of Appeals — Third Circuit |
C. Clark Hodgson, Jr., Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for appellant.
Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before KALODNER, ADAMS and MAX ROSENN, Circuit Judges.
Samuel Samson Allen appeals a conviction by a jury in the United States District Court for the Eastern District of Pennsylvania for conspiring to rob a bank in violation of 18 U.S.C. § 2113. Appellant claims plain error in the failure of the trial judge to instruct the jury on the necessity of finding commission of an overt act in order to find defendant guilty of conspiracy. He also claims several other errors, including the refusal of the trial judge to recuse himself from presiding over this retrial of Allen because the judge had seen Allen's presentence report at the conclusion of the first trial. We find it necessary to reverse the judgment of conviction due to the inadequate jury instructions.
Appellant was first tried and convicted on bank robbery and conspiracy charges in September 1970. The trial judge sentenced him to twenty years imprisonment. On appeal, this court reversed the judgment and remanded for a new trial. United States v. Small, 443 F.2d 497 (3d Cir. 1971).
Following the reversal, Allen was brought before the same trial judge on November 30, 1971, on the same charges of conspiring to rob and robbing the National Bank of Chester County and Trust Company in Exton, Pennsylvania. He was acquitted of the substantive bank robbery counts, but found guilty of the conspiracy charge.
Acquittal on the substantive counts emphasizes the substantial importance to defendant's rights of the failure by the trial judge to instruct properly on the elements of the conspiracy count. Commission of an overt act by one of the conspirators is an essential element of the crime of conspiracy. Bradford v. United States, 413 F.2d 467, 470 (5th Cir. 1969); Walker v. United States, 342 F.2d 22, 25 (5th Cir. 1965); Hansen v. United States, 326 F.2d 152, 156 (9th Cir. 1963). The overt act is important in demonstrating more than a subjective mental intent to commit a crime on the part of the conspirators. When the instructions fail to specify every essential element of the crime, the failure constitutes plain error which can be considered on appeal under Federal Rule of Criminal Procedure 52(b), even though no objection was made at trial. Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939, 942 (1965); cf. United States v. Vitiello, 363 F.2d 240, 243 (3d Cir. 1966).
After a careful search of the jury instruction, we have found several references to overt acts, but at no point was the jury told that it must determine at least one overt act was committed in order to find Allen guilty of conspiracy. The jury was instructed that:
Any act done by any of the participants in pursuance of the original plan and with reference to the common object and contemplation of law is the act of all.
In setting out the elements of conspiracy, however, the trial judge listed as necessary elements only (1) a combination of two persons, (2) a real agreement, and (3) an unlawful purpose. Conspicuous by its absence is a reference to the necessity of finding the commission of an overt act. The most explicit reference to overt acts, rather than implying a necessity of finding such acts had been committed, unfortunately, conveyed an opposite impression:
Now, the indictment goes on to recite overt acts. If that comes to your attention, they are unimportant. You needn\'t conclude that each overt act in here was proven or not proven. What your concern is is whether the evidence presented from this witness stand and the other exhibits bring you to a conclusion that a crime was committed and that this man committed it, whether or not others did is unimportant; the question is if he did. Emphasis added.
The failure to instruct on overt acts cannot be assumed to have been unimportant to defendant's due process rights. Twelve overt acts were charged in Allen's indictment. Seven of the alleged overt acts involved driving to, robbing, and leaving the bank. As Allen was acquitted on the substantive counts of the indictment, there must be some doubt as to whether the jury found proof of these acts. The other five alleged overt acts involved a reconnaissance of a bank. Witness testimony, however, is in conflict on whether this reconnaissance was of the Exton, Pennsylvania, National Bank of Chester County and Trust Company, and on what date the reconnaissance occurred.
Looking at the instructions as a whole, therefore, we find plain error was committed in the failure of the court to instruct on all necessary elements of the crime of conspiracy. We reverse on this ground.
Although we need not decide the recusal issue, appellant's argument raises serious questions of judicial administration which merit discussion.
Allen was sentenced after his first trial. The trial judge read Allen's presentence report in accordance with Federal Rule of Criminal Procedure 32(c). When he was brought before the same district court judge for retrial, Allen moved for the judge to recuse himself because he had seen the presentence report. Allen submitted an affidavit of bias in support of his motion.1 The motion was denied as being insufficient as a matter of law to demonstrate the personal bias or prejudice necessary to qualify for relief under 28 U.S.C. § 144 and incorrect in its assertion that recusal is mandated by Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). On appeal, Allen does not allege any prejudicial conduct on the part of the trial judge at the retrial; his sole claim is that Gregg mandates that the judge should have recused himself.
The Gregg decision suggests strongly that recusal is mandated in circumstances similar to the present case. Federal Rule of Criminal Procedure 32(c)(1) provides:
The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.
In writing the definitive interpretation of Rule 32 in Gregg, the Supreme Court admitted to no exceptions in the Rule's admonition that the trial judge should not see the presentence report before a jury returns its verdict:
Rule 32 is explicit. It asserts that the "report shall not be submitted to the court . . . unless the defendant has pleaded guilty or has been found guilty." This language clearly permits the preparation of a presentence report before guilty plea or conviction but it is equally clear that the report must not, under any circumstances, be "submitted to the court" before the defendant pleads guilty or is convicted. Submission of the report to the court before that point constitutes error of the clearest kind. Emphasis added.
Gregg v. United States, 394 U.S. at 491-492, 89 S.Ct. at 1136. Mr. Justice White, writing for the Court in Gregg, indicated that no judicial prejudice need be shown to constitute error when the judge has seen the presentence report prior to conviction:
Moreover, the rule must not be taken lightly. Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged. To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant\'s guilt or innocence or who will preside over a jury trial would seriously contravene the rule\'s purpose of preventing possible prejudice from premature submission of the presentence report. No trial judge, therefore, should examine the report while the jury is deliberating since he may be called upon to give further instructions or answer inquiries from the jury, in which event...
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