From Casetext: Smarter Legal Research

United States v. Flannery

United States Court of Appeals, First Circuit
Nov 12, 1971
451 F.2d 880 (1st Cir. 1971)

Summary

finding that the prosecutor's statement regarding "uncontradicted" government testimony impermissible, when "contradiction" would have required defendant to testify

Summary of this case from U.S. v. Salley

Opinion

No. 71-1199.

Heard October 5, 1971.

Decided November 12, 1971.

F. Graham McSwiney, New London, N. H., by appointment of the Court, with whom Hall, Morse, Gallagher Anderson, Concord, N.H., was on brief, for appellant.

Carroll F. Jones, Asst. U.S. Atty., with whom David A. Brock, U.S. Atty., was on brief, for appellee.

Appeal from the United States District Court for the District of New Hampshire.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.


In 1965 we held that for the government to say, in summation to the jury, that certain of its evidence was "uncontradicted," when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment. Desmond v. United States, 1 Cir., 1965, 345 F.2d 225. We do not adopt the reasoning of those courts which state, it seems to us, ingenuously, that to say that the government witnesses' testimony was uncontradicted is simply a statement of historical fact. There are many `facts' which are benign in themselves. The difficulty is that such reference, when only the defendant could have contradicted, clearly calls to the jury's mind the fact that he failed to testify. In spite of frequent repetition of this, what would seem to us obvious, conclusion, government attorneys, either uninstructed, or unmindful of their instructions, have persisted in ignoring our ruling. In some published cases we have found prejudice and reversed. In others, for special reasons, as when the court was quick to correct the error, we have found no prejudice. As early as Desmond, however, we expressed our belief that the government would not make such a comment, thereby risking reversal, unless it thought the comment effective. Its persistence in so doing, despite admonitions by trial judges as well as ourselves, produces a sense of futility. Hereafter, as to cases tried after the date of this opinion, when it is apparent on the record that there was no one other than himself whom the defendant could have called to contradict the testimony, we shall not endeavor to weigh prejudice, but shall rule it prejudicial as matter of law, with a single exception. If the court interrupts the argument, instructs the jury fully on the defendant's constitutional right not to testify and the jury's obligation not to draw unfavorable inferences and, in addition, states to the jury that the U.S. Attorney was guilty of misconduct, we may find no prejudice; otherwise we will reverse.

We have held that the description "uncontroverted," if used in any broader sense, is error for a further reason. The defendant controverts all of the government's case, unless he has affirmatively conceded some portion of it. DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797; see United States v. Langone, 1 Cir., 1971, 445 F.2d 636, 637, cert. denied 10/26/71, 92 S.Ct. 226. Otherwise the presumption of innocence is meaningless.

Although there is not unanimity as to when prejudice will be found, every circuit whose opinions we have examined agrees with the principle. See United States ex rel. Leak v. Follette, 2 Cir., 1969, 418 F.2d 1266, cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665; United States v. Day, 3 Cir., 1967, 384 F.2d 464, 465-66; Peeples v. United States. 5 Cir., 1965, 341 F.2d 60, 64-65, cert. denied 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280; United States v. Parisi, 6 Cir., 1966, 365 F.2d 601, 607-09, vacated sub nom. O'Brien v. United States, 1967, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94; United States v. Lyon, 7 Cir., 1968, 397 F.2d 505, cert. denied sub nom. Lysczyk v. United States, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117; Doty v. United States, 10 Cir., 1968, 416 F.2d 887, vacated sub nom. Epps v. United States, 1971, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542.

Rodriguez-Sandoval v. United States, 1 Cir., 1969, 409 F.2d 529; Desmond v. United States, ante.

Perez Goitia v. United States, 1 Cir., 1969, 409 F.2d 524, cert. denied 397 U.S. 906, 90 S.Ct. 896, 25 L.Ed.2d 86; Holden v. United States, 1 Cir., 1968, 393 F.2d 276; Holden v. United States, 1 Cir., 1968, 388 F.2d 240, cert. denied 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132; Kitchell v. United States, 1 Cir., 1966, 354 F.2d 715, cert. denied 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032.

In the present case the defendant, Flannery, and four others, Curvin, Dionne, Franchi and Patuto, were indicted for conspiracy to circulate forged postal orders. Curvin, Dionne and Franchi pleaded guilty. Patuto was found not guilty, and thereafter disappeared. Defendant was then brought to trial. The principal witness against him was Dionne. Dionne testified to a number of conversations at which the defendant and some or all of the others were present, but from which it could be contended that defendant "walked away." Particularly damaging, therefore, were several other illicit conversations at which Dionne placed only himself and the defendant. Defendant was convicted, and he appeals.

At the trial, defendant did not take the stand. Under these circumstances the government's argument, repeated three times, that Dionne's testimony as to these private conversations was "uncontradicted" was accurate, but a prejudicial violation of the rule under any standard. Defendant did not object, perhaps fearful of making the matter worse, and the court's failure to interrupt may have been for the same reason. The government had no right, however, to place the defendant in this dilemma.

Although this disposes of the appeal, we deal with two other matters. We believe that in charging the jury, with respect to reasonable doubt, that "a reasonable doubt can be defined as a strong and abiding conviction that still remains after careful consideration of all the evidence," the court must have misspoken itself. A reasonable doubt by definition means a doubt founded upon reason and not speculation, but it certainly does not require, as charged by the court, a "strong and abiding conviction." This is the burden that is on the government. See United States v. Byrd, 2 Cir., 1965, 352 F.2d 570, 575; Commonwealth v. Webster, 1850, 5 Cush. (59 Mass.) 295, 320.

Secondly, in the exercise of our supervisory powers, we comment upon the court's rendering and paraphrasing of the " Allen" charge. Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, following Commonwealth v. Tuey, 1851, 8 Cush. (62 Mass.) 1. This charge has been called the dynamite charge. Like dynamite, it should be used with great caution, and only when absolutely necessary. There was no call for the court to employ it, sua sponte, when the jury had been deliberating only three hours, and had reported no difficulties in agreeing. See Webb v. United States, 5 Cir., 1968, 398 F.2d 727; cf. United States v. Hynes, 2 Cir., 1970, 424 F.2d 754, cert. denied 399 U.S. 933, 90 S.Ct. 70, 26 L.Ed.2d 804. The caution required dictates also that trial courts should avoid substantive departures from the formulations of the charge that have already received judicial approval. Such departures impose on appellate courts the almost impossible task of weighing the prejudicial impact of a variation of the approved charge. And in all events, the court should be careful to include all those elements of the original charge designed to ameliorate its coercive effect, and to avoid language which might heighten it. See United States v. Thomas, D.C. Cir., 449 F.2d 1177; United States v. Brown, 7 Cir., 1969, 411 F.2d 930, cert. denied 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508. The instructions given here were deficient in this regard in a number of ways.

First, the court erred in reminding the jury that it was Friday afternoon. Cf. United States v. Diamond, 5 Cir., 1970, 430 F.2d 688. The implicit suggestion, although doubtless unintended, was that it was more important to be quick than to be thoughtful.

Second, when the Allen charge is needed it is important that the court, as did the court in Allen, 164 U.S. at 501, 17 S.Ct. 154, give express recognition to the possibility that the majority may be for acquittal, and state that the minority should reexamine its position when the majority is for acquittal as well as when it is for conviction. Nor should the onus of reexamination be on the minority alone. Whenever a court instructs jurors to reexamine their positions, it should expressly address its remarks to the majority as well as to the minority. See United States v. Thomas, ante; Mangan v. Broderick Bascom Rope Co., 7 Cir., 1965, 351 F.2d 24, 30, cert. denied 383 U.S. 926, 86 S.Ct. 930, 15 L. Ed.2d 846; cf. United States v. Fioravanti, 3 Cir., 1969, 412 F.2d 407, cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed. 2d 88.

Third, as we have pointed out before, the court should remind the jury of the burden of proof. See Pugliano v. United States, 1 Cir., 1965, 348 F.2d 902, 903-04, cert. denied 382 U.S. 939, 86 S.Ct. 390, 15 L.Ed.2d 349. In Tuey itself, the reference was clear. 8 Cush. (62 Mass.) at 2.

Finally, as counsel persuasively urged upon us, we expressly disapprove the Tuey statement that "the case must at some time be decided." 8 Cush. (62 Mass.) at 2. A jury, any number of juries, have a right to fail to agree. It is proper to instruct that it is desirable to have the case decided, and that there is no reason to suppose that some other jury will be in a better position to do so, but we do not approve of saying more. See United States v. Harris, 6 Cir., 1968, 391 F.2d 348, 354-56, cert. denied 393 U.S. 874, 89 S.Ct. 169, 21 L. Ed.2d 145; cf. Jenkins v. United States, 1965, 380 U.S. 445, 85 S.Ct. 1059, 13 L. Ed.2d 957.

The Allen charge has recently come under heavy criticism, and a number of circuits have abandoned it in favor of the more neutral form suggested by the American Bar Association. We are not ready so to restrict our trial judges. There are occasions when it may be appropriate to remind the jurors of their duties in somewhat stronger terms than in the initial instruction. If so, however, the court will be advised to respect the rules outlined herein.

See, e. g., United States v. Thomas, ante at n. 45.

Reversed; new trial ordered.


Summaries of

United States v. Flannery

United States Court of Appeals, First Circuit
Nov 12, 1971
451 F.2d 880 (1st Cir. 1971)

finding that the prosecutor's statement regarding "uncontradicted" government testimony impermissible, when "contradiction" would have required defendant to testify

Summary of this case from U.S. v. Salley

disapproving of the district court's statement that “the case must at some time be decided”

Summary of this case from United States v. Amaro-Santiago

criticizing the trial court for suggesting to the jury that "it was more important to be quick than to be thoughtful"

Summary of this case from U.S. v. McElhiney

describing the elements of an appropriate charge "in the exercise of our supervisory powers"

Summary of this case from U.S. v. Eastern Medical Billing Inc.

disapproving court's statement "the case must at some time be decided."

Summary of this case from U.S. v. Paniagua-Ramos

discussing supplemental charge under Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528, urging jury to reach verdict

Summary of this case from U.S. v. Young

In United States v. Flannery, 451 F.2d 880 (1st Cir. 1971), we advised that the court, on reinstructing a deadlocked jury, should address its remarks on re-examining juror positions to the majority as well as the minority; should remind the jury of the burden of proof; and should avoid language that could be interpreted by the jurors as instructing them that they must agree.

Summary of this case from U.S. v. de Leon Davis

In United States v. Flannery, 451 F.2d 880 (1st Cir. 1971) the First Circuit noted that it was reversible error where "the court erred in reminding the jury that it was Friday afternoon.... The implicit suggestion, although doubtless unintended, was that it was more important to be quick than to be thoughtful."

Summary of this case from United States v. Graham

In Flannery we dealt with a case where the prosecutor repeatedly characterized the government's evidence as "uncontradicted", noted that this "clearly call[ed] to the jury's mind" defendant's failure to testify, id. at 881-82, and adopted a per se rule of reversal unless the court gave an immediate instruction on a defendant's right and the jury's obligation with an additional statement that the prosecutor was guilty of misconduct.

Summary of this case from United States v. Babbitt

In Flannery and its precursors, such as Rodriguez-Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969), cert. denied, 414 U.S. 869, 94 S.Ct. 180, 38 L.Ed.2d 115 (1973), and Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965), we were faced with situations where the prosecutor had referred explicitly to certain evidence as uncontradicted when the only source of contradiction was the defendant, who has a fifth amendment right not to take the stand.

Summary of this case from United States v. Flaherty

In Flannery, we held that prosecutorial statements that the government's evidence is "uncontradicted," when "contradiction" would have required the defendant to take the stand, constitute reversible error unless immediately and fully corrected by the district court.

Summary of this case from United States v. Savarese

In Flannery, the defendant, who was indicted for conspiracy to circulate forged postal orders, did not testify. The principle witness against the defendant was a co-conspirator who testified to conversations between the defendant and himself. During the Government's closing argument the prosecutor repeated three times that the co-conspirator's testimony as to these conversations was "uncontradicted".

Summary of this case from United States v. Canas

In United States v. Flannery, 451 F.2d 880, 882, 883 (1st Cir. 1971), we signalled our concern that instructions on the burden of proof be correct.

Summary of this case from United States v. Harrigan

In United States v. Flannery, 451 F.2d 880, 882 (1st Cir. 1971), the First Circuit announced it would reverse whenever such comments were made if the defendant was the only one to contradict the government's evidence unless the court gave an immediate instruction which would dispel the prejudice.

Summary of this case from United States v. Venable
Case details for

United States v. Flannery

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. JOHN FLANNERY, DEFENDANT, APPELLANT

Court:United States Court of Appeals, First Circuit

Date published: Nov 12, 1971

Citations

451 F.2d 880 (1st Cir. 1971)

Citing Cases

U.S. v. McElhiney

Some of the recommended cautionary language already existed in the pure instruction, for example: (1) that no…

United States v. Cianciulli

While it is true that, contrary to the holdings of the Third Circuit Court of Appeals, the First and Seventh…