*1 884 bribery by that since this crime of as defined
212. He reasoned § government, of branches The evidence was embraces all three sufficient show that who, police officer includes necessarily Burnsed violated this statute. Since 16- branch, corruptly executive part imposes as of 212 imprisonment of more than one influence accepts a bribe we year, government’s conclude deals in which he with about the manner proof satisfied the of definition “racketeer- violating him to be by persons known ing activity” 1961(1)(A). in 18 U.S.C. § law. Burnsed also complains about the denial the district
We believe
of his motion for a severance. We find no
16-212 and 16-214 is
interpretation
§§
ruling
abuse
discretion in this
of the trial
obvious difference between
correct. One
Opper
States,
court. Cf.
v. United
348 U.S.
that, in
prove
order to
viola
the statutes is
84, 95,
158,
75 S.Ct.
(1954).
151, contrast, require (1930). 154
ment 16-214. This differ is omitted
ence and the variation in the statutes they impose
punishments indicate
legislature recognized degrees different
culpability.
absence of
inter-
In the
a definitive
America,
UNITED
Appellee,
STATES of
pretation
by
16-212 and 16-214
§§
v.
Court,
Supreme
defer to
South Carolina
judge,
reached
the district
conclusion
SELLERS, Jr., Appellant.
Charles Alton
as a
whose service
state and federal
No. 76-2262.
has made him familiar with the law of
Poly
South Carolina. See Bernhardt v.
United States
Appeals,
Court of
Co.,
graphic
198, 204,
273,
350 U.S.
76 S.Ct.
Fourth Circuit.
(1956);
Weyer
Corpus Juris:
“In any event the modern definition of
bribery, otherwise, statutory whether or
commonly subject includes as the of it all
persons whose official is in any conduct
way connected the administration of government, general local, or whether
judicial, executive, legislative, or ministe-
rial, persons who execute the func- public
tions of a office or any who hold
place profit or trust under law of
the state.”
The district jury instructed the elements,
about including all of
meaning “corruptly,” prove essential *2 S.C., Dunn, Jr., Greenville, T. for
Will appellant. Atty. A. Asst. Harper,
Donald
U. S.
Jr.,
(Thomas
Lydon,
Atty.,
E.
U. S.
Colum-
bia, S.C.,
appellee.
brief),
on
for
BUTZNER,
Judge,
Circuit
Before
FIELD,
Judge,
WIDEN-
Senior Circuit
ER,
Judge.
Circuit
WIDENER,
Judge:
Circuit
Sellers, Jr.,
from a
appeals
Alton
Charles
robbery.
him of
convicting
bank
improp-
district court
complains
He
that the
testimony proffered by
erly excluded
essentially
allowing
witness
expert
while
ex-
government’s
similar
erred
pert. He also
that the court
contends
trial
denying his
new
motion
ought to
alleged
which
trying
disqualified himself
have
and remand because
We vacate
case.
the testi-
placed
court
the limitation the
expert.
mony of the defendant’s
dis-
man who
the bank was
robbed
beard,
wig. Al-
guised
sunglasses,
implicated
circumstantial evidence
though
Sellers,
him as
eye
identify
no
witness could
Surveillance cameras
the bandit.
frontal
recorded
side and
several
necessarily objectionable
Since the
is not
of the robber.
views
for the rea-
alone, proof
may
acted
son that it
speak
contended
Sellers
to the ultimate issue.
photographs
case,
the man in the
that he was
Fed.R.Evid. 704.
we assume
opinions
experts, including
was critical.
of both
their
concerning
conclusions
the identification of
permitted
ex-
court
defendant’s
*3
the
by
photographs,
Sellers
were admissi-
to
comparison
express
in
his
pert
photo
ble.1 The
fully
witnesses
disclosed the rea-
the
between Sell-
opinion about
differences
sons for their opinions.
The
person
and those of the
ers’ features
argues, however,
the
that
conclusion to be
It, however,
photographs.
ex-
surveillance
drawn
testimony
from the
expert
of Sellers’
expert’s
the
the
jury
cluded from
conclusion
obvious,
witness was
and that consequently
person
the
that Sellers was not
shown in
the exclusion of the
opin-
statement of his
photographs.
the
ion that Sellers was not the
inman
the
rebuttal,
permitted
On
the
the court
photograph was harmless. We find this
to
government’s expert
explain the difficul-
argument unpersuasive.
making photographic comparisons
ties of
lenses,
in
perspective,
because of variations
gives
Rule 403
a trial court discre
light,
development paper. Far more
and
tion to exclude relevant evidence that
importantly,
express
it
allowed him
also
to
time,
cumulative,
wastes
or
preju
or too
his
that identification of
ban-
conclusion
the
dicial,
like,
this,
and the
course,
and
by
particular photographs
dit
these
was im-
expert testimony.
includes
Under different
possible.
circumstances,
might
Rule 403
the
sustain
ruling of the district court. But this rule
Expert testimony in cases such as
may not be utilized to exclude the otherwise
may
jury’s
pho
this
assist the
evaluation of
opinion
admissible
party’s
expert on a
tographs by explaining
light,
the effects of
issue,
critical
allowing
while
the opinion of
shadow,
reflections,
the
and
distortion
adversary’s expert
his
the
on
same issue.
the
perspective
caused
of the picture,
The discretion
allowed
Rule 403 must be
expert,
and other technical factors.
applied evenhandedly.
hold, therefore,
We
needed,
using enlargements
may
if
also
that
the district court erred in that
it
point out
the jury
to
similarities or differ
abused its discretion in
permitting
not
the
ences between
of the
the features
defend
defendant’s expert
testify
to
in his
person
ant
those of the
shown in the
opinion
photographs
the
showed Sellers was
photograph.
may
This testimony
be admis
bandit,
not
the
permitting
while
the
703;
702,
sible. Fed.R.Evid.
see United
government’s expert to express
opinion
his
Green,
386,
(8th
States
Cir.
impossible
it was
to determine from
1975).
the photographs whether
was
Sellers
the
When
jury
to assist the
in
bandit.
identifying
by the use of
bandit
surveil
admissible,
lance photography is
we assume
II
expert may
express
the
be allowed to
also
opinion
his
as to whether the
defendant
assigns
Sellers also
error to the deni
person
the
in the picture. Such an
opinion
al
his motion
new trial in which he
question
1. No
determining
is raised here
to the
experts
as
admissi-
certain test for
may
when
bility
government expert
of the evidence of the
inquiry
be used than the common sense
wheth-
layman
whether or
not
should have been al-
er
qualified
the untrained
to
express
opinion
impos-
intelligently
lowed to
that was
possible
determine
and to the best
photographs
degree
particular
sible to
enlighten-
determine
the
issue without
express
whether
having
specialized
Sellers was
bandit. We
ment from those
under-
opinion
question,
standing
subject
ho
on that
and note that
of the
involved in the dis-
Advisory
pute.”
test in
problem
Rule
Committee’s Note to
For a
of the
discussion
expert
ascertaining
respect
evidence,
photographic
whether or
an
to
see United
testify
Green,
should
supra,
be allowed to
to a
States v.
and United States v.
conclusion,
Brown,
as follows: “There is no more
I dissent is not limited in- should be judge that the retrial of defendant stances where the aor member of his who not so inti- judge conducted has such an interest.4 mately the victim of the connected with Commenting (a) on subsection of the robbery. statute, Report amended of the House Judiciary Committee on the that states: recognizes if this were civil case which the was objective standard, up This sets an rather disqual- party, the trial would have to subjective than the standard set forth in ify though even the effect on his himself existing statute through use of the holdings insignificant so it phrase opinion”. “in his general This Nevertheless, could not be measured.3 designed promote standard is public argues disqualification necessary is not impartiality confidence judi- bank, although because the the victim of process effect, by saying, cial if there crime, a party proceed- was not to the is a reasonable factual doubting basis for ings, and its shareholders were not finan- impartiality, he should dis- cially by the affected outcome the trial. qualify himself and let another judge pre- significance believe that the decisive side over the case.5 government assigns to these two factors legislative This history indicates it is unwarranted governing unnecessary to show is actu- disqualification judges and the Code of ally biased. The test is whether there adopted by Judicial Conduct the Judicial *5 “reasonable factual basis for doubting the Conference of the United States. judge’s impartiality.” I believe that a basis Ravich, for a
United 421 such doubt is showing States F.2d established (2d 1970), judge 1205 a govern- on which the has substantial financial relies, interest longer persuasive. ment is no bank which has been robbed 1974 and that amendment to 28 his brother is chief U.S.C. 455 elimina- executive offi- ted cer subjective test which left the deci- of the institution. It is reasonable to disqualification sion of judge any person when a held conclude that who has substan- in a stock robbed bank to “the tial holdings conscience of is bank that the victim of judge.” robbery The amended stat- has an interest is different ute, 455(a) provides: U.S.C. § from that the general public in seeing the criminal
Any convicted.6 These justice, judge, feelings are magistrate, or ref- apt to be when the bankruptcy eree intensified United stockholder’s States ultimately brother responsible disqualify shall himself for the proceeding security impartiality might which his the institution and safety reason- ably its questioned. employees. stockholder, be Such a I dare say, disqualified to juror sit as a The Code of- Judicial Conduct contains a in most courts. provision, similar and neither the code nor disqualification observer, statute conditions A believe, detached could rea- proof of party sonably question financial interest in a to whether a so judge closely Indeed, proceedings. emphasizes the code linked to the victim could maintain impar- (5); 455(b)(4) 3. Sess., See Code of 5. Cong., H.R. 93d 2d Judges, reprinted Judicial Conduct for United States Cong. in [1974] U.S.Code & Admin. (d). C(l)(c) News, Canon 3 pp. Code Judicial Conduct for United States my justification view there no for draw- Judges, C(l) provides part: Canon 3 ing judge’s ownership a distinction between a judge disqualify pro- A shall himself in a holding company, of stock in a bank which in ceeding impartiality might in which his rea- turn owns all of the bank’s and his sonably questioned, including be but lim- ownership of bank stock. ited to instances where: or a member of [he family party has an interest in a proceedings. C(l)(c) (d)] Canon 3 be difficult for the might well tiality. It stance, especially a neutral
judge to hold employ- officers and
when the supervision direct
ees, are under the who brother, with other evidence. conflicts unwit-
Indeed, judge might a conscientious to favor the
tingly over backwards bend above his conduct would be so that
accused partiality the accused
reproach. But just surely as bias be avoided
must
against him. being repetitious, it well
At the risk of amended statute and emphasize into a inquiry not call for
the code do feelings. We are not subjective examining in this case
concerned who tried this case.
attitude of
Instead, obligation provide is to an ob- our applied can be uni-
jective appraisal judges throughout the circuit.
formly to all that a should conclude
I therefore involv-
disqualify himself in criminal cases of his in which he or member
ing or offi- is a stockholder
immediate salutary the same apply should
cer. He require code
practice that In both instanc- apply in civil eases.
him enhance confidence disqualification will
es *6 justice. the administration America, Appellee, STATES of
UNITED HUDSON,
Raymond Appellant. Earl
No. 77-1045. Appeals,
United States Court
Fourth Circuit.
Argued Nov.
Decided Dec. Dunn, Greenville, C., Jr.,
Will T. S. appellant.