United States v. Dennis Richard Hall

evidence, simply but and circumstantial America, UNITED STATES requires jury find the facts accord- Appellee, preponderance all with ance case, direct and both evidence in HALL, Dennis Richard Defendant- circumstantial.” Appellant. coupled instructions, These No. Docket 28797. comprehensive descriptions essen negligence proximate elements of Appeals tial United States Court of required. causation, Second Circuit. were all they must be told that The Argued April 1965. by preponderance convinced Decided June negligence defendant’s evidence appellee’s injury. proximately caused following these instructions reject necessity on the incumbent liability hypotheses inconsistent hypothesis probable con less than the as suggested The therewith. sistent nothing, ex have added struction cept stated, confusion. as we appel have considered We only to error assertions of

lant’s other

reject to war them as too insubstantial It will discussion. suffice rant extended verdict, although say even certainly gener court, reduced

ous, conclude that we cannot reducing it discretion in abused its further.

still plaintiff appeal remittitur order

below es wholly old and It merit. without secured has that one who law

tablished condition judgment cannot retract to obtain in order he assented

to which

it. plaintiff, by insisting “The Hays, Judge, Circuit dissented. court,

alternative allowed him having case, trial of a new the whole but electing allowed, the other alternative filing a remittitur of half the amount original judgment, thereupon moving obtaining for and an affirmance half, judgment of that as to the other right object waived all order court, of the benefit which Koenigsberger he had availed himself.” Mining Co.,

v. Richmond Silver U.S. 3 L.Ed. 889 S.Ct.

(1895), also and cases cited. See Wood- Chesborough,

worth v. U.S. 61 L.Ed.

S.Ct.

Affirmed. Craco, City (An- Louis York A. New

thony Legal Marra, Society, F. The Aid Marks, City, Michael G. New York brief), defendant-appellant. for Armstrong, Michael F. Asst. U. S. Atty. (Robert Morgenthau, U. M. S. Atty., York, Southern Dist. New Nussbaum, Bernard W. Asst. U. S. Atty., appellee. brief), KAUFMAN, HAYS and AN- Before Judges. DERSON, Circuit Judge: KAUFMAN, Circuit theory Advancing a novel federal under the statute, 3146,1 Dennis Rich 18 U.S.C. § judgment appeals a of con ard Hall him viction entered after found guilty of The one-count that offense. “Whoever, provides: years, imprisoned The statute hav than five or not more appearance or, both; given been admitted to bail con- if the bail any committing commissioner or with a nection misdemeanor, appearance court of the United incurs a for or for as wit- willfully ness, $1,000 feiture the bail and fails to than be fined more year, imprisoned surrender himself within fol or not more than one lowing forfeiture, shall, the date of such or both. given “Nothing if the bail was connection shall interfere this section felony pending appeal prevent by any or or court or the exercise power certiorari conviction of of of punish the United States its fense, $5,000 contempt.” be fined not than more indictment, relayed promptly framed in terms the statu Londin these instruc- alleged Hall, very day. tory language, tions to Hall the same posted $15,000 appeared forfeited bail thereafter charge and, July 1, felony in thereafter, connection with a June and on knowingly grant- prosecution failed each occasion the adjournment. But, subsequently, to surrender ed an himself following Appel attorney of forfeiture. his the date Hall’s did see so client years’ specifically im lant prisonmen sentenced to five he could inform him that was that t.2 affirm, finding (a) no his We the Government charge again supplemental July error in or in court on 8. Hall did (b) July structions, appear evi more than sufficient on or on that date and beyond July 11, 1963, a rea for- dence to convince the his bail declared was by to sur doubt the failure feited. All Mr. and sonable that efforts Londin (c) knowing willful, proved and render was and the bail Hall bondsman locate unavailing. error, prejudicial no under the circum stances, requiring appellant’s counsel in on The record further indicates that testify briefly a witness for the 16, 1963, agent an of the Fed- October prosecution. Investigation Bureau eral found and Hawaii, when willful- case arrested Hall in where he was often As is so Young. using a criminal in Hall element alias Clarence critical ness trial, agent and, un- evidentiary identity facts are admitted his the’ basic dispute hearing focuses in a before the United States controverted they support. Honolulu, Commissioner in also admitted inferences the reasonable May person for indicted, that he was wanted in con- Hall was transport conspiring to transporting nection with stolen' securities commerce, charges. moreover, agent appears, It interstate in securities stolen He learned that Hall had come Hawaii 18 U.S.C. §§ assure $15,000 his bail bond with wife and three children and executed the previously those with the islands in appearance in connection been to his using charges. the name Lawrence the thirteen-month Philips. filing of the indictment between appeared July 1963, the calen- the case jail Honolulu men Two who shared District United dar fall of cell with York New District for the Southern that Hall told also testified. One stated twenty times, Hall from fifteen to dealings him he was in because trouble on each excused present his absence lady elderly in New York who occasion. died, he in her if she was 80’s and that longer Londin, fear trial, Hall’s have to criminal J. would At Jerome witness assigned attorney also stolen se- conviction. Hall asked in both the * * * long bail-jumping would “how it take cases curities and * * * Cruz, go testify to Yera boat called to Mexico,” many miles and “how out the Assistant he was informed Attorney the Coast limits of the stolen the territorial Státes Appellant his other cell- told prosecution thereafter Guard.” securities day every “jumped did bail” and Hall court that he had would mate Mr. jail on the calendar. that his case was for a if not mind he remained subsequently years’ 2. Hall convicted im- substantive counts and five underlying felony conspiracy count, counts prisonment to run —three transporting in inter concurrently stolen securities -with each other and with commerce, appeal and a state 18 U.S.C. sentence. An so, conspiring currently do judgment fourth count of conviction pending. was sentenced to seven U.S.C. 371. He years’ imprisonment on each of the three year knowledge, because time there posed would series of against lady be no case him if questions: the old relevant “Did he died. appear had to in this court ? Did he will- fully jurisdiction flee the to avoid trial evidence, On the basis of this the trial deliberately jump here? Did he bail?” judge, denying Hall’s motions to jury’s quite properly attention was dismiss at the conclusion both the to, though solely directed no means case, Government’s and the entire on, knowledge focused Hall’s of whether jury. submitted the case to the When July 8, he had to in court on guilty, returned verdict of extent awareness- that ob- judg- court denied defense motions for a ligation probative an element or, acquittal alternative, ment of And, significant of willfulness. trial, a new appeal and this followed. appellant’s competent experi- objection enced trial counsel made no I. charge the conclusion of judge Hall contends that the trial catalogue court’s the elements submitting jury erred in the case to the offense. concept that his failure to be hour, deliberating present days an required in for about court on all After jury asked, ad- was itself the trial was sufficient “When to violate the bail- jumping journed July statute. the announcement He directs our was atten- portions charge open tion to in made in judge’s specific inquiries resume was to answers to defendant the trial where, likely them, ju- judge, as be- reads 8?” The most asking repeatedly lieving jurors rors were him to instructed to were convict they give evidence, deliberately if found that he had his own recollection of the appear pres- responded in for them to recol- court when his that it was any required. contrary, they ence was On lect the evidence and if desired however, having charge testimony done. examined the reread this would be supplemental But, answers in their on to that “the entire went indicate context, reading question we find no basis for his isn’t whether he here was validity trial, or question to the claim of reversible er- is whether he was judge clearly here,” ror. required The trial stated the here when he was ultimate, controlling question: misapprehension possible whether and thus ap- Hall failed to surrender within the defendant was to pear of the forfeiture or to failed actual was clarified. trial appear for inquiry some reason devoid of crim- Since there no further inal score, willfulness. and we must view the evi- light in dence favorable to the most Thus, charge, the basic in addition to Government, Robbins, United States v. quoting fully from both in- statute and 1965); 340 F.2d 684 Cir. dictment, accurately listed the elements Tutino, States v. 269 F.2d 488 Cir. prob- offense. No it seems reasonable to assume presented by lems were the first three jury that the was satisfied with the tes- charged elements: that Hall was with a timony that Hall had been told crime, was admitted to bail on that assigned attorney, Londin, Mr. charge, and incurred a forfeiture of that inquiry, for all calendar calls. The bail. As to the fourth element-—willful deed, understanding showed an of one thirty days— failure to surrender within important factors to be considered dispute,” accurately “the pinpointed determining in whether Hall’s actions instructions, “is whether his failure were willful. willful, whether he did it deliber- ately. doing Did he know what he was Some two hours later re- or was it for some innocent ?” In question: reason turned with a “The further explaining charge the issue of willfulness and Court in its indicated ‘Did com- doing The initial bail bond. there an or was what he was explained ignorance correctly this ele- pletely and Does innocent reason?’ discussing If, willfulness ment. reason?” an innocent law constitute occasions, on one the court several later Responding indication that to this adopted form a short of these allusions jurors experiencing not uncom- which, meaning circum- under layman’s difficulty reference mon stances, understood could not have been judge willfulness, re- first the trial meaning ascribing completely new specifying part cited that of the statute re- within which Hall to the time punishable is the will- the conduct surrender, it. quired fault we cannot ful failure surrender within incurring He forfeiture. fully mindful of We are explained, then special “duty which all trial care” framing Now, judges last- willful is exercise the reason the word must response be con- instructions there is so that one will minute queries. v. United victed of a crime because of a mistake Bollenbach something L.Ed. inno- S.Ct. because he does Indeed, realizing cently, have written he was do- 350 what may “justifiably ing. com defendant that a plain court refuses when the requirement has There is no thereby expressly, and the correct law that makes it know there is a law ability jury’s upon to infer it.” relies jump All he has to crime to bail. 383, Donato, F.2d v. Di 301 willfully freely, do here to act is to act denied, 370 U.S. cert. Cir. voluntarily, deliberate to act with a (1964). L.Ed.2d 497 82 S.Ct. being purpose of in this Court- not substantially from differs But this case supposed house when he is to be here. gave a Bollenbach, trial court the where excepted

Hall’s counsel then to the fail- respect palpably erroneous instruction jury ure to that the “must find perplexed very matter that deliberately that he did not surrender Here, repetition last jury. on the having himself known he had to sur- jury short-hand response to the replied render himself.” The court here,” required to be phrase he is “when jury’s presence, “I think I made it focusing again expressly without once * * * clear that he must thirty-day jury’s on the attention required he has to be here when he is grace re period, of the was—-in view that, knowing that, to be here and peated relevant statu of the intonations deliberately pur- for the misleading language tory or con —not pose evading charge.” fusing, understood have been nor could it appear on to his failure to mean that Contrary contentions, to Hall’s we do finding required July ipso facto agree supplemental that the instruc- Donato, hold, guilt. Thus, in Di as explicitly implicitly tions commanded highly un supra, but the remote guilty to return a verdict ambiguity likely did possibility of finding deliberately a mere that he ab- certainly rights and affect substantial July 8, sented himself from court on prejudicial error. was not knowing he should have been there. We judge properly believe the trial answered II. jury’s concerning inquiry final in the meaning Nor is there merit of willfulness as used in was insufficient claim that the evidence statute. the course of prove failed fairly lengthy jury’s response to the last days thirty after question, referred, incidentally, to surrender within one Although his statutory was forfeited. of the essential elements-—-the requested the court counsel below accused’s willful failure to surrender find that “he must days that the thirty of the after forfeiture deliberately begin July personally did not surrender himself render 2 to having serving sentences, together known he had to surrender him- their with a self,” insists, time, stating proposed Hall now first notice order prosecution required presented to would the District prove actually signature his bail was knew for settlement and on that appearance forfeited that he had date. In an the Dis- require which to surrender. But ex- trict Court on defense counsel June plicit proof gave that notice of the exact date assurances that “all of these de- brought directly home fendants will be here” would, bail-jumper in most But, four of eleven failed to sur- stances, mockery make a statute render marshal accordance with fly applicable face desig- order, the court’s precedents, legislative history of following day, nated date. The practical realities bail- the absent defendants’ bail bonds jumping. forfeited, declared counsel told the court that he last 29. The ground saw them

Appellant covers too much asked, you “Did tell them at that when he insists that the Government can time that their only prove a willful violation show morning?” yesterday in court And ing, substance, precise awareness lawyer replied, finding statutory A of will terms. possibly depend upon fulness could not Definitely. matter fact I ad- As a wrongdoer read the stat saw them I think I vised that because proscribed ute which his conduct. Unit among I had other defendants Carter, ed 29], your Friday been here on [June Cir.), denied, cert. Felice v. United Honor, motions made these and had 83 S.Ct. [applications orders cause to show Judge L.Ed.2d 415 Learned why imposed the sentences should not wrote, ‘wilful,’ Hand once “The word or, the de- to one of be reduced statutes, even in criminal means more fendants, suspended ill- because charged person than that the they ness], and advised that therefore duty doing. knows he is what It does present, all should and I as- be that, addition, sup not mean in he must they sured that would be. pose breaking that he is the law.” apprehended in One defendant was Surety American Co. of York v. New later, in Texas four months another Sullivan, 1925). 605, (2 7 F.2d 606 Cir. twenty-six more than California after eventually The conclusion we months, have reached finds and two surrendered strong support in the of cases series four and in New York more than precipitated which years elapsed. the enactment of bail- All four one-half jumping 1954 statute in thus war- prison additional terms sentenced to pun rant power discussion. On June under the District Court’s Supreme Court, important authority, an contempt consti- includ ish for of its decision, ing tutional affirmed the convictions 18 disobedience to lawful orders. prominent Party 401(3). Imposition eleven Communist of such U.S.C. § conspiring Supreme punishment leaders for upheld to teach ad- States, vocate the violent overthrow of Gov- 356 in Green United Court v. 165, 632, ernment contravention Smith 672 U.S. 78 2 L.Ed.2d S.Ct. Act, 371, (1958), separate 18 Dennis U.S.C. occasions and on three §§ 494, Supreme v. United 341 U.S. 71 S.Ct. this court —twice before the 857, Shortly decision, Hall, 95 L.Ed. 1137 United States v. thereafter, (2 726, counsel sev- 34 Cir. F.2d A.L.R.2d 1088 accepted denied, eral of the service S.Ct. defendants cert. 345 U.S. proposed (1953); behalf all order on 97 L.Ed. 1341 requiring Thompson, mandate the eleven to sur- States v. F.2d majority Green, denied, Cir.), terminative for the 75 S.Ct. cert. history legislative (1954), there is well-rooted and once L.Ed. 663 statute, which was after, Thompson, 261 instance, 1958). fill void in the criminal enacted to In Cir. each flouting highlighted by reviewing conduct evi law court found that fugitives. legislation beyond established, the Dennis reasonable dence statutory knowingly doubt, fugitives dis deterrent “seeks to create a although possibility of obeyed order, will minimize the which the surrender forfeiture,” Cong. & 1954 U.S.Code that order until after was not bail-jump- Adm.News, p. 3074, unless requirement will four had fled. The separate indictable despite di were to be made a fulness was satisfied lack buy actually offense, proof defendants could criminal rect the defendants bonds, forfeiting their signed, freedom in those their knew order was only cases, multiple subject Hall’s, risk that the Govern- as in there awas extremely would be to meet evi ment able strand cumulated circumstantial criminally proving burden of mens rea. onerous dence to establish Congress’ But contumacious conduct. dissenting opin- Mr. Brennan’s Justice purpose we to would be thwarted were significant. particularly ion in Green is bail-jumper require notice to the formal majority’s rejecting notion “that his bond has been forfeited chargeable persons can be knowl- grace thirty-day period in has a edge of an order from notice that Obviously, na- to surrender. which application order,” will be made for the of the offense is such that ture 356 U.S. at 78 S.Ct. he con- hardly likely 'bail-jumper leave will might ceded that the evidence have been forwarding require the To address. support sufficient to for vio- convictions circumstances Government under these lating 3146, which was in 1954 enacted fugitive’s knowledge to adduce aof after, to, partially response of a declaration flights, defendants’ but judg- Congress foolhardy attribute opinion. wrote, Court’s He perfectly apparent to us ment. It seems thirty-day interval jumping under 3146 is “[B]ail prosecutor as a tended restraint on the proved merely by evidence period for a reasonable of time before accused failed to surrender commencing prosecution. Provision incurring grace for such a demonstrated more, a forfeiture of his bail. Much knowledge every wisdom and facet sustaining however, evidence than pre- problem for would it serve to jumping a conviction for bail is injustice who, vent in the case one necessary to sustain convictions presence mistaken about his was the date charged contempts here of vio appeared shortly required, for- lating 401(3), 18 18 U.S.C. U.S. § feiture; also afford time some 401(3), by know C.A. willful and produce for the bondsman find to single provi of a disobedience the defendant he bailed. sion of the Order on Mandate 2, indispensable 1951. The element therefore, hold, We beyond offense, proved of that to be to sufficient more than evidence was * * * doubt, a reasonable doubt, beyond prove, a reasonable defendants, were not who within failed to surrender Hall order, served other in some forfeited. his bail was way knowledge of its obtained actual essentially whether knowl The issue U.S. existence and command.” 356 edge been established intent 221, at 78 S.Ct. at 662. and, circumstantially; since “the trier government, varying for the of fact has found This distinction between the requirements proof, although de- favor- be viewed most the evidence must

882 * * * message ably Attorney’s it, ac- routine that the which includes indulgence required permissible presence each inferences cused’s was at all relaying mes- v. Mar calendar call. The of this in its favor.” United States chisio, sage (2 9, April nature 344 662 Cir. not in the of a confidential F.2d Wigmore, 1965), quoting Evi- v. See 8 from United States communication. 2292; 1956). (McNaughton Brown, dence Rev. 236 F.2d 405 Cir. Machinery Thus, it is there v. United Shoe clear that was evidence States (D.Mass. Corp., F.Supp. pro that Hall 89 358 bond which merely 1950). consequences for the Defense counsel served vided of forfeiture appear; as sage. mes- if he for transmission of a failed to that he was conduit lawyer ap At- formed Assistant his that he must notifying torney call; responsible pear at each calendar pres- bail, chang accused, 5,000 his miles, out on as to when fled more than ing twice And, ence there court. his name. these All of actions were compounded by telling could been a claim of violation well have admissions to legal ethics if the Government counsel his Honolulu cellmates that he had conveyed directly jumped had this notice bail to the death of await defendant, bypassing year De- weighty his counsel. old witness. This evidence relay duty fendant’s counsel permit more than sufficed to capacity instructions his client in his draw the inference reasonable that Hall court, knowing as an of the and this appear, officer he had to do obliga- way so, was inconsistent his after forfeiture. Indeed, tion to light his client. there is no doubt overwhelming the Government’s evi Moreover, the mere fact that express dence pur that he left testify counsel was called to does pose concealing himself, knowing all without more establish a material inter consequences, least the ference with effective conduct until the witness’ death became a reali defense. Given the limited time ty.3 testimony, nature of his his reluctance stipulate sought matter III. although stipulation elicited such Government, solicited the absence Finally, double-edged attack, in a any attempt him or at embarrass urges Hall error reversible was com credibility postponement tack his assigned mitted when his counsel was any objection trial, can until after testify called to appel he had informed find no basis for reversible error on lant that his in court was re score. See Cohen v. United quired every occasion when the stolen Cir.), denied, F.2d 865, U.S. cert. appeared securities case on the calendar. 82 S.Ct. 8 L.Ed.2d 84 testimony He divulged, improperly claims that this Guerra, In United objection, privileged, over denied, 144-145, (2 Cir.), 146 n. cert. attorney-client confidential communica 85 S.Ct. 13 L.Ed.2d during tion and episode the entire (1964), we faced an orthodox situa deprived he was of the effective assist right tion of denial of the to counsel—the ance of counsel. Under circum interrogated improperly a Government stances, however, find no merit in ei defendant after indictment but before ther contention. appointed counsel had been declined —but attorney- We find no of the invasion showing because there was no. reverse resulting privilege from Mr. Lon- client applies prejudice. principle conveyed The same testimony din’s formal here, fortiori, his client the where Assistant there was minimal aged transporting 3. This fact testified in trial witness in the defendant’s stolen securities in interstate commerce. grace period harm, any, if from brief tes- the defendant must counsel’s begins momentary period If timony when ends. and his withdrawal and point failure to to a defendant’s surrender from the defendant’s side upon based a mistake as when the feet distant from him but neverthe- few thirty days ended, presence. in his could he be said to less have failed to surrender- him- oppor- The Court wishes to take this grace period? self his within the Can gratitude tunity express its and both action be said to be it is willful when presenta- commendation the excellent upon ignorance? based by A. tion Louis and Michael G. Craco knowing Marks, representing police, defend- Could the the defendant by appeal assignment. his ant was unaware that had been this forfeited, keep him under surveillance Judgment of conviction affirmed. thirty day period elapsed until had and then him with a violation HAYS, Judge (dissenting): Circuit 3146? § gov- ground I dissent apprehend police defend- Could the prove failed to ernment willfulness with- thirty day period, but ant within the meaning as it that term is used and absconded to Hawaii (1964) (“willfully in 18 U.S.C. § jump purpose to his told cell-mates of thirty fails to surrender himself within bail, failure him with and willful days following the date” of forfeiture of thirty days ? to surrender within bail). statutory pro- It seems to me that That the trial court was troubled about thirty day period in- vision for the problem only by indicated require- extricably up bound jury’s question as to willfulness but also willfulness, can and there ment of by judge’s government inquiry except problem of the be resolution verdict, inquiry counsel after which give the in terms defendant which satisfactorily was never answered: grace advantage period. of the “Now what I wanted to know is legislative That this accords what evidence was there the rec- purpose words indicated ord of the fact that his failure to Representative PofE, who introduced days surrender within for- Representatives bill to the House wilful, feiture of his bail was and it Poff, speak- 3146. Mr. which became implicit seemed to me that in that ing immediately adoption of there must be evidence that he knew House, said: the bill that his bail had been forfeited. knowledge “Having exist- “Now, you say how do there was ence statute knowledge such evidence of such wilfully penalties having its (Emphasis added.) record?” terms, violated its [defendant] subject course, is, A defendant ** * crime has committed prison arrest and return time may actually though even after he has his bail original substantive nocent on the charge.” provided penalty has been revoked. The added.) (Emphasis only 3146 is added after there has been a willful to surrender Franco v. United failure only appears (D.C.Cir.1964), of more than authority point. the court A defendant could While bail. escape penalty pointed “the statute that additional out that if he sur- that case day. must rendered How- the defendant thirtieth does not state ever, knowledge advantage statutory [of the forfeiture to take amendment, Cong.Rec. ported 1. 100 hack without Senate, passed In the the bill was referred to without debate. Id. Judiciary, the Committee on was re- 14044. place,” has taken

bail] court went say: on to purpose

“Since of the statute encourage persons is to on bail to obligations bonds,

meet the in their person

notice ligation bailed his ob- should be suf- revocation,

ficient. Notice of the case, informed of his obligation to surrender himself. clearly

The terms of his bond stated duty,

that he had such the event giv-

of revocation. The information agent put

en him also on in-

quiry about of his bond.”

342 F.2d at 921.

I would reverse the conviction. Turzillo,

Lee TURZILLO and Lucille Petitioners,

COMMISSIONER OF INTERNAL REV- ENUE, Respondent.

No. 15764. Appeals Sixth Circuit.

Case Details

Case Name: United States v. Dennis Richard Hall

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 9, 1965

Citation: 346 F.2d 875

Docket Number: 28797_1

Court Abbreviation: 2d Cir.