United States v. Vigorito, 153.

• Decision Date: 06 November 1933
• Docket Number: No. 153.,153.
• Citation: 67 F.2d 329
• Parties: UNITED STATES v. VIGORITO.
• Court: U.S. Court of Appeals — Second Circuit

67 F.2d 329 (1933)

UNITED STATES v. VIGORITO.

No. 153.

Circuit Court of Appeals, Second Circuit.

November 6, 1933.

David F. Price, of Brooklyn, N. Y. (Emil Weitzner, of New York City, of counsel), for appellant.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Henry G. Singer, and Emanuel Bublick, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

Gabriel Vigorito (or Vigoretti, as he is usually called) was tried with several other defendants upon an indictment which charged violation of the National Motor Vehicle Theft Act (18 USCA § 408) and conspiracy to violate said act. The jury found him guilty of the conspiracy charge and of two separate violations of the statute as alleged in counts 16 and 17, each of which charged transportation of a stolen automobile between Brooklyn, N. Y., and Leningrad, Russia. Sentence upon the conspiracy count was suspended; hence no review is sought of the judgment of conviction under that count. United States v. Levinson, 54 F.(2d) 363 (C. C. A. 2). For each of the substantive offenses he was sentenced to five years' imprisonment; the sentences to run consecutively. By this appeal he seeks to set aside the judgment of conviction under counts 16 and 17 of the indictment.

The appellant presents three points: (1) An error in the charge as to burden of proof to establish "a defense of alibi"; (2) the absence of evidence that Vigoretti had knowledge that the cars were stolen; and (3) the failure of the government to prove that the two cars mentioned in counts 16 and 17 were actually transported in foreign commerce. These points will be discussed seriatim, with such statement of the facts relating to each as seems necessary.

The so-called "defense of alibi" is a defense only in the sense that any contradiction of facts which the government must prove to establish guilt may be called a "defense." The burden of proving guilt must always rest upon the prosecutor. Williams v. United States, 158 F. 30, 35 (C. C. A. 8). In the case at bar the government's witness Barker had identified Vigoretti as the man to whom he had delivered, in Trenton, N. J., on July 1 or 2, 1932, dock receipts for the stolen cars in question. To contradict this testimony connecting Vigoretti with the illegal transportation, witnesses were produced who testified that he was in Acra, N. Y., on those dates. In charging the jury, the judge said with respect to this testimony:

"Well, that is a proper defense under the law, if established, but the burden is not upon the Government. The burden is upon the defendant to establish the alibi; but if under all the circumstances you believe that he could not have been there at a certain time, that is proper under the law."

To charge that a defendant has the burden of establishing an alibi is plainly erroneous, for the burden of proving guilt never shifts from the government. Glover v. United States, 147 F. 426, 431, 8 Ann. Cas. 1184 (C. C. A. 8); Falgout v. United States, 279 F. 513, 515 (C. C. A. 5); Cangelosi v. United States, 19 F.(2d) 923 (C. C. A. 6). But no exception was taken to the charge, and no request made to correct it. While this does not preclude an appellate court from taking note of an error and reversing the judgment, the right to do so is exercised sparingly and only when the court is convinced that serious prejudice has resulted. See Gruher v. United States, 255 F. 474, 478 (C. C. A. 2); United States v. Drexel, 56 F.(2d) 588, 589 (C. C. A. 2); Hughes, Fed. Prac. § 7154. In the present case we are not so convinced. Both before and after giving the objectionable charge as to alibi, the judge repeatedly charged that the prosecution had the burden of establishing guilt beyond a reasonable doubt and that the defendants were not required to establish their innocence. At the request of Vigoretti he subsequently referred to the question of identification of the defendants and charged that "the question of identity is like any other question of fact in the case" and to be determined by common sense, judgment, and reason. The jury expressly stated that...