Robert Bumpus v. Frank Gunter

907 might already that Makris have spe- the fact request of a bribe or explicit offer grand jury all he knew to the does argument does revealed testimony. This cific appellant’s guilt elements of The three the issue of the scrutiny. affect withstand was convicted which Tedesco crime for or innocence. (3) in- (2) corruptly (1) endeavoring to was a witness within Makris any witness fluence A witness has meaning of section 1503. adminis- the due or influence States United sup one who knows or is been defined as v. justice. United States See tration facts and whо is posed to know material 1978) 939, (2d 940 Cir. Fasolino, F.2d 586 testify called on to to them. expected to be (conviction under section 1503 curiam) (per Chandler, 972, v. 604 F.2d 974 United States county jury commissioner requesting dismissed, (5th 1979), cert. 100 Cir. S.Ct. pre- We have sentencing judge). approach 1104, (1980). “ 1074, 317 444 63 L.Ed.2d U.S. ‘endeavor’ connotes a ruled that viously during parties stipulated purposeful ac- lower threshold somewhat ” Makris with time that Tedesco contacted v. States ‘attempt.’ United tivity than v. De regard testimony, to his United States 940, 1979). Lazzerini, 941 Cir. 611 F.2d Magistris pending was a ease in the United аppellant was convicted In Lazzerini District Court for the District of States asking employee his 1503 for under section Massachusetts. several times to dis- housemate and former which the a trial with her sister cuss testimony An effort to alter the of a instruc- juror. On Lazzerini’s sister was corrupt purposes plainly witness for that the tions, told her sister employee his impede the administration endeavor to due hers, a “nice was a friend of defendant States, justice. Anderson v. United 215 stated, quoting and innocent. We guy,” 84, denied, (6th Cir.), cert. 348 F.2d Roe, 629, (4th F.2d 632 v. 529 United States 99 L.Ed. 698 S.Ct. the effort to influ- “the fact that considering already the facts outlined made no dif- ence was subtle or circuitous” law, applicable it is clear that light jurors could con- ference. “If reasonable the conviction must be sustained. clude, of the con- from the circumstances versation, sought, had the defendant Affirmed. cloak- cleverly and with whatever

however improperly influence

ing purpose, complete.” 611 F.2d

juror, the offense was reasoning applies equal

at 941. This Considering here.

force to Tedesco’s words ap- under which Tedesco

the circumstances said, what he

proached Makris as well as grounds finding for a ample there were BUMPUS, Petitioner-Appellant, Robert corrupt- endeavoring to influence a witness v. ly- al., et Frank GUNTER alsо need not be suc The endeavor Respondents-Appellees. Cioffi, v. 493 F.2d cessful. United States No. 80-1114. denied, (2d Cir.), 419 U.S. cert. (1974); see 42 L.Ed.2d Appeals, Court of United States (dis Roe, at v. United States First Circuit. corruptly in context of cussing section 1503 Argued May juror); petit cf. endeavoring to influence Russell, 138, 143, 255 U.S. United States 3, 1980. Decided Dec. (1921) (upholding 65 L.Ed. 553 41 S.Ct. endeavoring to in corruptly conviction for stat petit juror predecessor under

fluence

ute, Code). Thus section 135 of Criminal this, Boston, Mass., like where the ‍​‌‌​‌​‌‌​​‌‌​‌​​‌​‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌‌‌​​​​‌​​‍Zalkind, by ap- cases reasona

Norman S. Court, Stephen Sal- given instructions in a state crim pointment ble doubt Zalkind, Bos- & tonstall, whom Zalkind alleged to have been constitu inal trial are Mass., petitioner-ap- ton, was on brief infirm, question of whether tionally pellant. will normally error there was constitutional Gen., Smith, Atty. Asst. A. H. Barbara so because the find dispositive. This is Mass., Francis X. Bel- Boston, with whom imports itself ing of “constitutional” error Gen., Delinsky, lotti, Stephen R. Atty. as to have existence of flaws so serious the Bureau, Chief, Gen., Criminal Atty. Asst. fundamentally unfair trial. in a resulted brief, respon- Mass., Boston, were on Cupp said in As the Court dents-appellees. 145-46, 94 S.Ct. Nаughten, 414 U.S. however, (1973), 38 L.Ed.2d 368 COFFIN, Judge, CAMP Chief Before “undesirable, er even instructions that are DAVIS,* BELL, Judge, Judge, and Circuit ” condemned,’ roneous, ‘universally or . . . of Claims. U. S. Court infirm; necessarily constitutionally are not CAMPBELL, Judge. Circuit H. LEVIN “ailing test is whether the instruction the from the dismiss- Bumpus appeals Robert by itself so infected the entire that the petition court of his al the district process.” violates due resulting conviction his convic- Bumpus attacks corpus. habeas petitioner Here claims the effect of the Superior Court on the Massachusetts tion in requiremеnt charge was to vitiate the which, most serious of grounds, various guilt proven beyond be a reasonable view, alleged constitutional concerns in our derogation held to of the standard inadequacies in the trial court’s instructions constitutionally mandated in all state and The dis- jury on reasonable doubt. Winship, In federal criminal trials. re carefully disputed analyzed trict court 25 L.Ed.2d 368 charge held that jury portions supported finding A to this effect fact, did, from deficien- charge suffer go long way strip the conviction magnitude. After a cies of a constitutional not, legitimacy. perhaps, go We need however,' hearing, the court de- subsequent magni of even this say far as to that error were harmless these errors termined salvaged. Dunn v. tude could never be See doubt; it therefore beyond a reasonable Perrin, 1978) (leav the writ. denied day” decision whether con ing to “another I. charge on reasonable stitutionally defective harmless). can ever be But such with the district court’s doubt disagree We although conceived, not with its end analysis, mode of have to case can be it would view, ap- the district court result. In our present unique contain circumstances ap- than was plied rigorous a less standard here. in the deciding whether defects propriate in proceed We thus to ask whether the chal- error,” to “constitutional charge amounted charge so infected the lenged aspects applying charge by and then rescued jury entire and trial as to cause approach This error review. harmless petitioner’s guilt evaluate or innocencе er- dignifying as “constitutional sulted in “beyond a rea- under a standard less than charge which were the court’s ror” flaws in answer to We believe the sonable ‍​‌‌​‌​‌‌​​‌‌​‌​​‌​‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌‌‌​​​​‌​​‍doubt.” seriousness, then, in not of that level of were statements in be “No.” While there effect, concept of constitu- downplaying unsaid, left charge that were better holding that it was harm- error tional were these singly collectively nor neither less.1 * Sitting by designation. evaluation of the comes out much the same as ours. fairness, errors tended to cancel 1. In the two court’s ultimаte one another out. The district deny petitioner light serious as to precedents, flaws so of these we can right guilt say challenged that his evaluat- fundamental language was so as to proper improper ed standard. amount to under constitutional er might ror. The instruction seem court delivered correct basic instructions on indeed less objectionable Perrin, than Dunn v. proof; burden reasonable doubt and its judge required “good and suffi explanations lapses lengthy course reason”; cient here the spoke only of designed improve and illustrations the ability argue principle “with concepts jury’s understanding these were integrity.” The worst feature the possi import. of less than fundamental ble suggestion juror that a timid challenged aspects now the turn up to stand room and the instructions. argue justify acquit. in order to vote portion Petitioner first criticizes Commonwealth, Cf. Owens v. 186 Va. charge of the court’s that a reasonable 706, 43 895 But language S.E.2d the doubt was, as the Massachusetts Judicial your to be a Court observed you “figurative.” “has doubt mind that Common Bumpus, wеalth 362 up jury argue can stand in the room and v. Mass. 290 N.E.2d principle your 167. Unless this court integrity up with and fel- end imposing pattern instructions, jurors, you jury low we and if have that kind of a must case, range expression, tolerate a reasonable on of doubt area in this the de- some or even much which may of not suit acquitted.” fendant is to be entitled our In fancy. Cupp Naughten, v. the Court subject years trial, two after the spoke the approvingly “well-recognized of language we criticized of a similar cast in long-established and function of the trial MacDonald, United States v. F.2d 455 jury by to assist the such instruc (1st Cir.) (“proof . . . which you e., (/. tions” on proof instructions burden of give can a you reason” or “for which can like) and the against and warned reliance ”). not, ‘intelligent reason’ did conjectural on “abstract and emanations however, reverse, although in MacDonald Winship.” from 414 at U.S. 90 S.Ct. at we were exercising supervisory direct endorse, 401. indeed, While we do not court, view a over federal and not the more against, challenged caution the language, years limited habeas corpus review. Six we do not find its use have amounted to later, Perrin, (1st in Dunn v. 23 error of constitutional dimension. 1978), case, Cir. a habeas we criticized as argues 2. Petitioner instead of re- formulation, “improper” “doubt as for quiring government prove guilt, the person existence of a which reasonable upon court called the accused to establish can give suggest good or a and sufficient the jury’s doubt mind. Cf. Dunn v. reason,” but intimated on the basis of Mac- Perrin, done, 570 F.2d at 24. This was it is that, alone, standing Donald language asserted, by constant аssertions of what a was not cause for recently, reversal. Most doubt reasonable was not. Petitioner as- Hampshire, in Tsoumas v. of State New sembles from the a list of fourteen F.2d upheld we a beginning “proof beyond statements of definition reasonable as a doubt doubt ‘proof beyond reasonable doubt is not reasonable, “which is rather than unrea- ” doubt,’ ending with “A moral certain- sonable; it must be a doubt based on ty than ‘less certainty mathematical It reason. is not a frivolous fanciful ” and less than a scientific certainty.’ doubt, nor is it easily one that can Cumulatively these are said to have vitiated explained away doubt, . .. is such a [I]t government’s burden. that is upon reasonable based rea- son as remains after consideration of all It is to remembered, however, the evidence that has State offered these remarks have separately been against it.” very culled lengthy from charge. They, them, why government’s burden was less must be told the emanations adults, Jurors are and we absolute. than rest of the with the along assessed an instruction “in not tо assess are warned emphasis earlier extensive which includes Naughten, Cupp artificial isolation.” innocence, and nu- presumption at at duty jury had reminders merous commonly conviction is judgment of Common- upon the “failure acquit “[A] which includes culmination of a trial beyond a reasonable to establish wealth witnesses, argument testimony of necessary to element any essential doubt evidence, counsel, receipt of exhibits While the crime.” sustain a conviction judge. jury by instruction of regard as an what we judge plаced challenged instruc- only is the Thus not emphasis on the degree of uncomfortable instructions, many such but one of tion burden, ful- his government’s limits of the itself is but of instruction process but the with the keeping was in some treatment of the trial components several one of subjects, other accorded lengthy treatment judgment in the of con- may result not so entirety was charge in its and the Id. viction.” as to undercut unbalanced objects the court’s 4. Petitioner standard, basically inaccu- nor was it doubt assertion, upon you that it is not impress “I as to repeatedly advised was rate. your being wrong, beyond possibility was admon- proof, the correct burden haunting thought let that be a so don’t verdict, and impartial to render an ished disturbing, While still you.” which bothers solemnity throughout of was informed by is ameliorated question sentence in responsibility. of its part lengthy of a discus the fact that it is with the takes issue 3. Petitioner doubt; it must be read reasonable sion of charge which came following portion of the after. Di before and with all that came beyond a proof the statemеnt that after assertion, it had come rectly before proof be not mean doubt does reasonable to, a reasonable doubt already referred that doubt, “rarely, if that it is yond all and with argued could be had to be a doubt that ever, case so clear that possible to find a jurors, end integrity to fellow principle and of innocence.” possibility cannot be a there conclusion, helpful to defend ing with the language is as follows: challenged The ant, a mere doubt or “If an unreasonable that kind of doubt you “and if have were sufficient to possibility of innocence case, this the defendant any area of conviction, every practically prevent a acquitted.” entitled to be prey upon free to criminal would be set that question, Then came the statement rule would be community. Such a doubt need not beyond a reasonable proof down and would break wholly impractical beyond make the order and forces of law and being wrong, so possibility your “the of supreme.” lawless thought haunting don’t let that be that petitioner agree do not We satisfied you. you bothers If effect, to disre- is, an invitation language that I with the standard in accordance Rath- doubt standard. gard the reasonable beyond a reasonable have indicated appear from a Massa- it would er-quoting certainty, because oth- to a moral judge was judicial decision-the chusetts you place upon the Commonwealth erwise why the standard explain to purporting ... A which it does not have a burden it did. The emo- required only what proof mathemati- than a certainty moral is less may be such rhetoric overtones of a scientific certainty tional and less than cal to encouraging are en- subtly beings certainty; criticized as because human should, will, that “the a free than it so a free mind and accept proof less dowed with Still, the into a put can’t their conduct “supreme.” you not be that lawless” will and come out deviating from a test tube computer or did not advocate instruction standard; answer.” merely it with an the reasonable doubt context, agree with the dis- we do not evaluated under the proper In language that the criticized trict court doubt standard. some telling jury, gener- amounted to ground see no for finding sense, worry being wrong. to about al equation constitutional error in the court’s encouraging approach, cavalier Far certainty, of reasonable doubt and moral throughout

the court its went to description its followed of moral certain pains emphasize, to in almost cathe- utmost ty “being your satisfied in minds and tones, solemnity jury’s dral your degree consciences with the same What the court sponsibilities. seems you satisfaction would look for when emphasize attempting have been was you major took action in the of life.” affairs government did not have to estab- Nor do we find error in constitutional what guilt beyond any possibility lish followed, saying, the court That, fact, so. error. “Now, if your affairs in life are not Petitioner, theme, on the same minor, major critical, maybe and not points in a to another instruction different you degree take action without the part lengthy charge thе court certainty that the asks you wit, evidence, reviewing the was “I don’t in'weighing guilt or innocence you want be deterred on the identifica of a defendant. possibility you tion evidence “But am going pose you I I what context, might wrong.” this state major your think would be a affair of ment, clear, less while than seems to have life. distinguishing eyewitness been between “If you were a young man with a guilt, identification other evidence of growing family and it was determined reminding also to be you your had a deficiency definite government’s limits of the burden. We do valve, your surgeon heart ad- well not think it constituted an instruction to you vise you if had corrective sur- convict even unsure that the accused was gery, deficiency the heart valve could be guilty. whole instruction went like you cured and would live a normal this: healthy useful and life. identification, you on “So should satis- might you “He also advise the that by fied proof beyond the burden of a operation risk, great was attendant with and if the identification you might operation, not survive the and satisfy you, itself not does then it doesn’t might you you he also advise don’t that preclude you considering all the oth- operation, you have the die at er in evidence the case in order to decide time, you may you a few years, live and guilt or innocence. may live a normal life. fact, “As your obliga- a matter of it is situation, “In you that to make a have so, you weigh tion to do and can judgment your the interests of own impresses identification as much as it health, in the your family interests of absolute, you, if less than with all the your responsibilities to I would them. other evidence in the case tо test whether say major your pri- that was a affair good the identification is is or inaccurate. vate lives. “I want you don’t to be on deterred “Now, crystal none of ball. us have a by possibility identification evidence None of us can foresee the future and we you might wrong, that because that is Now, have to take a course of action. all burden of the Commonwealth. arguments we can to do listen The burden of the to Commonwealth is arguments against by and the those who satisfy you beyond a reasonable doubt.” are best to arguments able advance those Taking whole, cons, as a do pros weigh instruction we to understand the peti- not believe the above detracted from all the evidence on both sides and then right guilt tioner’s to have his or judg- innocence when it has been make concluded a burden, or meat, operation government’s else- either undermine reiterated, guilt beyond to have it. to establish We said in reasonable doubt. Grace But- certain- to a moral are satisfied you “If terworth, (1st 1980), 1 at 6 F.2d Cir. evaluated weighed and ty having on the be considered that can everything “Although reiterate our concern we you are tak- of action subject, the course analogies of invoked type use of the take. ‍​‌‌​‌​‌‌​​‌‌​‌​​‌​‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌‌‌​​​​‌​​‍If you right course ing is the help explain you conviction you have a settled may in standard fact reasonable doubt what the right thing, doing certainty degree of understate to a satisfaction moral law to be considers conviction, do we quired for criminal law is what the look- certainty. That is judge explic- that because the not bеlieve satisfied ing you ask to be they for when ordinary-life itly analogies stated certainty pondering to a moral implicit in Dunn this merely were doubt. this issue of reasonable weighing significantly had a aspect of nothing It more. asks impact appellants’ detrimental more major is a affair in the lives of “This supervisory rights. do not exercise us, trial, so look for the same of power over the state courts of Massachu- satisfaction, of the degree proof setts; pro- of their criminal our review crimes that essential elеments these instances in ceedings is limited those major you would look for affairs of by itself so ailing ‘the instruction you took action.” your own lives before resulting trial that the the entire infected Perrin, In Dunn v. this court observed that process.’ ...” violates due conviction some courts have criticized comparison ordinary-life analogies Some of the accept- reasonable doubt in criminal cases with the ed in were less Grace momentous than the employed standard to make sig- operation heart described here. We do not lives, nificant daily decisions in their find constitutional error. Nonetheless, F.2d at 24. upheld we criticism, against there a similar refusing issue writ habeas recently we classify refused to such com- put stamp our corpus we do not mean parison as constitutional error. Grace v. approval upon language used in the Butterworth, F.2d modi- of the criticized instructions. The decade (June 27,1980). token, fied theBy same we heightened 1980’s will continue to see a petitioner’s do not now either accept argu- lurking dangers sоme awareness ment comparison that such is unconstitu- hoary, oft-repeated illustrations used tional, petitioner’s arguments further early 70’s to up through the 60’s and on of the bottomed criticism elaborate heart life the-reasonable doubt stan- breathe into operation by judge. analogy drawn The may general- to dard. awareness lead Such matter, flawed, logical was as a since analogy what ac- ly requirements as to is stricter presented it a in which either one of case two more help- even rеsult in ceptable may fraught with risk and possible choices was perhaps is charges-although ful latter made neither choice could be with therefore seek judges are driven to safe- debatable certainty. moral The anything approaching at- ty eschewing all illustrations and in this jurors may by have been baffled incon- here mere- tempts explanation. at hold they that danger we little sistency but see jury instant ly imperfections that by were misled what amount- affirmatively to magnitude were of such as sequitur. The ed to non thrust an extеnded right basic deprived of his petitioner life-threatening a analogy, involving of the only under the situation, to be tried and convicted certainly was not to trivialize the nor, beyond jurors’ duty, “proof in the common a taken standard expect jurors doubt,” sense way they any respect one would to other nor did it, example ceive seem us to does the deprive process. him of due time,

II. At tioner’s trial. that defendants dock, occupied commonly though indi- complains that it was a Petitioner vidual judges, upon request, might allоw rights constitutional to com violation of his them to sit with counsel. seated in pel during him to be the dock agree trial. We with the district court that The over concerns use of the dock ex rights no oc violation constitutional pressed by court in Walker v. Butter curred. appear worth would by be satisfied policy announced in Supreme The Commonwealth v. Massachusetts Judicial given as Moore. the specific sup Court has described dock follows: And ported security reasons the Supe stated “Most court rooms used for сriminal rior Court for use of the dock in the sessions Commonwealth subject which is the of the dock, instant equipped a wooden a enclo- sure, proceeding, proceed we usually need no further. measuring four or five feet square, long assuming compelled Even use it has been custom- of the dock, motive, ary during security for the defendant to sit trial. without could be open top, The dock is at the so that the analogous compelled appearance deemed of a upper person prison torso seated is visible. garb, Williams, see Estelle v. clerk, The the court court judge, officers U.S. 96 S.Ct. 48 L.Ed.2d 126 enclosures, jury occupy and the (1975), similar it clear may that a trial court arrangement of which varies from employ security presence devices in the court room court room. dock as upon proper showing of necessi appears vestige we know it to be a 1693; ty. Id., at 96 S.Ct. at Illinois v. English baledock.” Allen, 397 U.S. 90 S.Ct. (1970). L.Ed.2d 353 Thus extent the Moore, -Mass.-, Commonwealth dock, prison garb, legiti unlike served a 393 N.E.2d 906-07 In the case mate security purpose, it just cited, would not be un Supreme Judicial Court took Here constitutional. the district note of our court recent criticism the dock in made supported findings, Butterworth, Walker v. based record, 1979); that defendant’s pretrial it ruled that behavior hence unstable, forth had been highly a Massachusetts “erratic and accused should be permitted say to sit at table the least.” Instances of except counsel violent and possibly where “some form of restraint self-destructive conduct necessary are men prevent escape protect or to tioned. others in the Defendant had been committed for situation, psychiatric room.” the latter examination had considered imposed by dock, minor, obstacle though plea insanity. petitioner’s While attor was felt to give ney officers time to reach argued less restrictive means of defendant, escaping disruptive available, and was restraint were the district court justified none, further as possible screen suggested found he had and the dis keep seeing any disagreed trict court were availa shackles required. itself, 393 ble. The dock which is similar in N.E.2d at appearance 908. Thus the Judicial to the often occupied enclosures Court attendants, has authorized use continued clerks and court is scarcely dock in as, limited circumstances where securi stigmatizing example, gags ty requires, but otherwise. That deci assuming shackles. Even deciding without came, course, sion years peti- nine after that there right2 is a constitutional in ordi- Moore, -, today, federal, 2. agree. Commonwealth v. -Mass. state and In the 904, (1979), unlikеly 393 906 constitutionality N.E.2d Massachusetts event the issue of Court, skirting again particular case, Judicial while mat ever in arises it will constitutionality, agreed ter of light with the Massa have to be resolved facts case, per chusetts district court that the venerable device terms of a se rule. See was, Williams, except security prevailed, 501, 504, 506-08, needs an Estelle v. 425 U.S. 1691, 1694, suspect (1975). “anachronism.” We most 96 courts S.Ct. 48 126 L.Ed.2d imperfections over required, not to be in the nary charge circumstances did not enclosure, the prevent Bumpus having to sit in such an objection, received a existing in the security considerations fair trial or his constitutional measure of sufficiently justified process, the re- due present quirement.

III. finally petitioner’s come claim in the court’s failure constitutional ‍​‌‌​‌​‌‌​​‌‌​‌​​‌​‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌‌‌​​​​‌​​‍error question prospective specifically The court

concerning possible racial bias. question along these lines general asked a al., Plaintiffs, John FURTADO et venire, but went no further. Our Appellants, Waitkevitch, v. decision in Dukes 469, fully answers al., Defendants, Harold BISHOP et Ross, Ristaino v. petitioner’s claim. See Appellees. 47 L.Ed.2d 258 U.S. S.Ct. Carolina, (1976); cf. Ham v. South No. 80-1282. 35 L.Ed.2d 46 On United Appeals, States Court of case, present we can see no the facts of the First Circuit. contention. merit Argued Sept. 1980. Affirmed. Decided Dec. DAVIS, Judge, concurring: corpus In this habeas consideration of a conviction, though even and because bring I

tried as far back as cannot

myself accept constitutional the chal-

lenged portions without tak-

ing strength some account of the against appellant.

evidence In a federal corpus vintage (coming

habeas case of this not, me, court),

from a state this is

application of the strict doctrine harm- (as Court), applied by

less error the District components

but rather one of the several (or not)

showing the existence of the ulti- requirement

mate constitutional

defendant be tried and convicted under the proof beyond

standard of a reasonable

doubt. I therefore concur in the court’s that,

opinion agreeing but add with the ‍​‌‌​‌​‌‌​​‌‌​‌​​‌​‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌‌‌​​​​‌​​‍there was no violation of due

process, strong I have also considered indicated, against appellant-as

evidence thing,

one by the District Court’s determi-

nation that even if there were constitution-

al errors in the they were harmless

beyond a solidity reasonable doubt. The me, helps

the evidence regard- to convince error,” application

less of the of “harmless

Case Details

Case Name: Robert Bumpus v. Frank Gunter

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 3, 1980

Citation: 635 F.2d 907

Docket Number: 80-1114

Court Abbreviation: 1st Cir.