United States v. Aubrey E. Bain
596 F.2d 120
5th Cir.
1979
Check Treatment

*1 Before CLARK and RO- NEY, Judges.

121 quested instruction was contained in the Judge: Circuit judge: trial charge given by the following appeal. The a direct criminal This is of the defend- require The law does not Bain, was convicted of appellant, nor is prove innocent ant that he himself to intent distrib- possess to conspiracy explain any to required the defendant Dilaudid, and 846 various 21 U.S.C. § ute or about proved not matter which is Dilau- of of counts distribution substantive doubt, nor is you which have a reasonable did, 841(a)(1). Because hold 21 § U.S.C. pro- or required any to call witnesses judge improperly refused to the trial that upon is but the burden any duce we reverse.1 requested a prove defendant’s to the the Government trial, properly of Bain During the course beyond a reasonable by evidence guilt following charge which in- the requested doubt. draw an adverse the structs upon the is the burden . Since testify.2 from failure inference his guilty prove a defendant Government to a in a compel The law does by beyond proving doubt a reasonable the witness stand criminal case to take essentia] every beyond a reasonable doubt so, and, do if he elects not to testify, and charged, crime the defend- element of the any kind can be raised presumption upon the failure right rely the ant has him, any against and inference proof. such the to establish prosecution from fact he you be drawn upon evi- rely also The defendant did not brought cross-examination dence out on is analysis in our whether step The first prosecution. of witnesses for the charge. a Bain is entitled to such impose upon law does not any duty producing evidence. 287, States, 308 In Bruno v. United 198, 257 the Su- 60 84 L.Ed. charge might S.Ct. given Fairly, we think preme provision of 28 Court held that proof” charge. be a Its termed “burden 4 against any legislates U.S.C. 6323 that § function is to inform the a failure to proving from defendant’s government carry must the burden testify requires given be a guilt. that a defendant We think the the defendant’s requested charge5 similar dissimilar to the properly charge significantly is charge requested requested. one here.6 testify” “failure to Next, government’s impossible for logically we must address the It is not proof, charge was the burden of argument have an adverse essence of the re- but also allow a to draw superfluous because the statutory conviction, none of 4. decided this case we reverse this Since we have 1. Because except totally unnecessary ground, reached to determine Bain’s other need be police requested charge requirements. testi- Adamson v. Bain’s See constitutional mony. California, His is insubstantial. 332 U.S. 91 L.Ed. California, (1947); 380 U.S. 1903 Griffin Blackmar, charge taken from Devitt & 2. S.Ct. 85 Jury 12.10 Instructions §§ Federal Practice & and 12.11. States, 421 F.2d 630 Dickinson v. United See (5 366 F.2d Cohen United Cir. is now This with minor variation section 363 present 3481. The section § found at U.S.C. reads: in was: 6. The Bruno persons charged with the com- In of all trial any the wit- to take The failure against United States mission of offenses behalf, testify does ness stand and proceedings and and in all courts martial him; against any presumption not create State, District, any courts of Pos- charged permit that must not charged Territory, person session or degree against weigh slightest in the fact to shall, competent request, a at his own be defendant, any en- nor should this fact such witness. His failure to make such or deliberations ter into discussions against any shall not create jury in manner. him. RONEY, inference the defendant’s failure to Judge, dissenting: Palmigiano, Cf. Baxter v. respectfully my judgment, I dissent. (1976) (in L.Ed.2d experienced judge’s prison discipline proceeding state’s decision fully communicated fact to the must be based state pre- it could not consider adverse *3 may draw adverse inference from the in- sumption against defendant because he to testify, mate’s failure silence insuf- but testify. failed to burden). ficient alone to sustain the state’s Bruno v. United U.S. possibility, request- Given this we think the 84 L.Ed.2d 257 does not charge gives ed jury guid- additional require a Justice Frank- formula of words. ance which the is entitled. furter there said: Support provided by view this Kentucky, Supreme Taylor Court in We conclude that the substance of the 1930, 56 98 S.Ct. L.Ed.2d 468 denied granted should have been argued In Taylor the state that a concerning instruction burden 308 U.S. at 60 S.Ct. at 201. proof requested, also contained a but judge specifically The trial instructed the given, instruction the presump- jury just consider, what evidence could tion of rejecting innocence. the state’s telling it that its verdict had to rest on that argument, Supreme Court said: gave He alone. then the instruc- legal While the scholar understand quoted Judge Thornberry’s opinion tion of innocence and which, together taken with the rest prosecution’s proof log- burden are tells the that it cannot consider similar, ically ordinary well citizen way the fact significant guidance draw additional produced evidence, encompasses from an instruction on the fact he did not himself innocence. must have understood that it could at Id. draw no inference of defend- We think the instant case is controlled produce including ant’s failure to Taylor and the Bain’s case is testimony. tled to the additional instruction that in- points The other appeal being without forms draw adverse inference from merit, I would affirm the conviction. the failure of the

Our last is whether

judge’s error affected substantial rights of parties or is nonreversible harmless er- agree

ror. We with Mr. Justice Frankfurt-

er in incapable Bruno that we psy- are

chologically determining that the requested

charge would have no jury.7 affect on the

We therefore think the failure to

requested instruction rises level Williams,

reversible error. United States

573 F.2d 284 Cir.

REVERSED. suggested psychological in oral not determine the effect this has, that Bain fares better without on the since Bain as a matter instruction strategy, since red instruction waves the of trial chosen to take this chance and flag that he has testified. See has an instruction to which Oregon, Lakeside v. entitled. (1978). Happily, need