United States v. Summerour

• Decision Date: 15 February 1968
• Docket Number: Cr. A. No. 42267.
• Citation: 279 F. Supp. 407
• Parties: UNITED STATES of America, Plaintiff, v. Julius SUMMEROUR, Defendant.
• Court: U.S. District Court — Western District of Michigan

279 F. Supp. 407

UNITED STATES of America, Plaintiff, v. Julius SUMMEROUR, Defendant.

Cr. A. No. 42267.

United States District Court E. D. Michigan, S. D.

February 15, 1968.

David E. Caplan, Asst. U. S. Atty., for plaintiff.

John D. O'Connell, Detroit, Mich., for defendant.

ORDER DENYING MOTION TO SET BAIL PENDING APPEAL

TALBOT SMITH, District Judge.

We explore this problem in some detail because of the increasing importance it has assumed under the provisions of the relatively new Criminal Justice Act.¹ The situation is this: Criminal trial has been had, conducted either by assigned or retained counsel (in the case before us, retained counsel was employed) and jury verdict of guilty returned. The appeal is taken by newly-retained counsel. The record is combed at leisure for "error". A fruitful field is that of the instructions. It is always possible to frame an allegedly more accurate instruction than one actually given, or to assert, upon reflection, that certain instructions neither requested nor given were essential to the jury's proper understanding. The obstacle in all of this, of course, is Rule 30 of the Federal Criminal Rules,² designed specifically to avoid this kind of postmortem. But this rule does not stand alone. Also found in the Criminal Rules is Rule 52(b) which provides that an appellate court may always note "plain error".

The above matters are squarely presented to this Court by reason of appellant's renewed motion to admit defendant to bail pending appeal. The ground now asserted (we have previously denied bail on several occasions because of defendant's attempt to intimidate a Government witness) is that the appeal is is not frivolous³ but will clearly result in a reversal of defendant's conviction because of plain but unobjected-to errors in the instructions; hence he should be released on bail pending decision on appeal. Without relating this provision of the new Bail Reform Act to its companion provision that enlargement to bail will not be permitted if the Court finds (as we have done previously) that the defendant is a menace to society, we will consider the alleged worth of the appeal with respect to our criterion at this level, namely, frivolity.

Specifically, as noted, the alleged errors relate to the instructions. In view of the fact that the instructions were discussed at length with defendant's retained trial counsel, who was both mature and experienced, and no objections were made to those ultimately given, counsel retained for the appeal must of necessity rely on the plain error doctrine of Rule 52(b). If, indeed, plain error has been committed, it is a matter of concern to this Court as well as the Court of Appeals. On the other hand, it is clear that if the integrity of the jury trial process is to be maintained, the doctrine of plain error cannot be permitted to elevate a captious technicality to the level of error and beyond that to plain error so gross and obvious as to justify reversal.⁴

We need not here trace the historical development of the rules relating to error. Suffice to say that earlier harsh doctrines have given way to a more flexible treatment,⁵ our present standards (as regards instructions in criminal trials) being stated by the aforementioned Rules of Criminal Procedure. Rule 30 provides, inter alia,

"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *"

This rule, clearly stated, would seem to preclude an appellate court's consideration of alleged errors in instructions, not objected to, and it has been so held in many cases.⁶ The theory here is that the matter of instructions is often bound up in counsel's trial strategy,⁷ that the conduct of the case is peculiarly for the discretion of trial counsel, that it is unfair for the losing counsel to gamble on instructions by refraining from objection, all the while keeping an ace (of plain error) up his sleeve, or for other reasons all concerned essentially with the fair conduct of the trial and the prevention of second-guessing the result. The First Circuit⁸ described the problem in these terms:

"In this court the defendant engages in the much too popular pastime of scutinizing sic the transcript and alleging possible errors that had not been noted before. We have, on a number of occasions, stated that we will not consider such matters unless the error was of great magnitude. See Lash v. United States, 1 Cir., 1955, 221 F.2d 237, cert. den. 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738. We would add that the presentation of routine, previously unobjected to matters, often not error at all, as if we had made no such announcement, unduly burdens the court and serves only to cast unmerited reflection upon trial counsel, who normally is in a better position to appraise the propriety and materiality of the conduct subsequently criticized, and presumably purposely did not object. It is also unfair to the court and the public generally if a defendant can have two bites at the cherry by saying nothing and then coming back and asking for a second chance."

The court concluded:

"We believe it high time that the bar realize that we mean what we say in this regard. `Plain error' means precisely that, and `exceptional circumstances' must in fact be exceptional. See Silber v. United States, 1962, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798. Counsel's attempt to make plain error from any error that can be shown to be of a prejudicial character would make the rule almost meaningless. Error which is not prejudicial at all is not a ground for reversal even if objection has been fully noted. See F.R.Crim.P. 52(a)."

The plain error rule (F.R.Crim.P. 52(b))⁹ does not in itself define what is, and what is not, plain error, save possibly by its reference to "substantial rights" which, in turn, lacks definition. For the content of plain error, then, we must turn to the cases. It is variously defined, as error that is of "great magnitude" Dichner, supra, that is "basic and highly prejudicial",¹⁰ that is "plain and fundamental",¹¹ or an instruction that in the words of our Circuit, "was so lacking in explanation of the offenses charged and their elements as to be fundamentally erroneous and inadequate",¹² or, conversely, in event of failure to charge, if such failure "constitutes a basic and highly prejudicial error". It must, moreover, be of sufficient magnitude to warrant an inference of a miscarriage of justice. Corey v. United States, 346 F.2d 65 (CA 1, 1965), cert. den. 382 U.S. 911, 86 S.Ct. 253, 15 L.Ed. 162.

The form of words used varies with the court, but the common thread running through all of the various statements of plain error is that of a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done. Obviously this is a large order. Of course, counsel can always argue that had an instruction been given (or not given) or certain evidence been received (or rejected) the result would have been different. This is the "for want of a nail, the shoe was lost, for want of a shoe the horse was lost, for want of a horse the rider was lost" and so forth, ultimately leading to the loss of the kingdom. This common (and commonplace) argument elevates every debatable issue to the high level of plain error which is clearly not the intent of the rules. How, then, may plain error be distinguished? What, in legal contemplation, is "fundamental"?

We first turn to the instructions as a body, the entire group. At the outset we are met by the axiom, repeated in countless cases, that "the court is not required to charge propositions of law, however well stated, unless the evidence before the jury justifies them".

Yet, as stated, the above is simply not true. We charge daily as to matters concerning which there is no "evidence" whatever, such as presumption of innocence. There are actually two kinds of charges: a) those basic to each and every criminal trial, namely, the elements of the offense charged, and the concepts involved in due process, such as burden of proof and presumption of innocence; and, b) those concerning the evidence adduced and the procedures followed in this particular trial. In the latter we are in the area of trial counsel's conduct of the case, the elements he wishes to stress and those he wishes to subordinate. On the other hand, the instructions described under (a) above, are, we believe, what are properly referred to as the fundamental, the basic charges, the omission of which (save by intelligent waiver) is plain error. The latter go to the minutae of the particular case, evidentiary or procedural, and these are the charges as to which counsel cannot remain silent when invited to object, to say nothing of participating in the formulation thereof, and then, on appeal, assert "plain error". It is but a short step, if indeed a step at all, from labelling such matters as "plain error", requiring reversal and remand, to trying the case de novo, as to which the Supreme Court, as far back as the turn of the century, was expressing itself clearly:

"While it is the duty of this court to review the action of subordinate courts, justice to those courts requires that their alleged errors should be called directly to their attention, and that their action should not be reversed upon questions which the astuteness of counsel in this court has evolved from the record. It is not the province of this court to retry these cases de novo."¹³

This is not to say that the charge of incompetence of trial counsel may not be raised in a proper case, but if required it should be made directly, on the basis of the whole record and not on isolated instructions, with accused counsel given a right to be heard, which is not normally the case when he is merely supplanted by other c...