*1 H71 there informed the FBI that brother had name his brother’s tion were long-barrelled pistol ap- hidden was a The acquiring credit. purpose of agents probable cause the van. The proof to offer of pellant made an also verify weapons or other evi- believe who would produce five witnesses in the dence of the crimes hidden were van appellant’s claim Owing van. movable nature of declined really Court The District his. van, warrantless search explicitly stated but also offer justified. supra. Maroney, standing v. Chambers appellant’s find the it did not Cohn, 290, See 35.) United States v. 472 F.2d (R.T. at The inbe issue. 1973); Note, 292 Warrantless regardless owned of who concluded Automobiles, extensively. and Seizures of Searches van, used 835, (1974). 87 Harv.L.Rev. (R.T. Supreme 842-45 19.) has Court The stated: judgment The of the District Court is affirmed. unnecessary and ill-advised to is “[I]t surrounding
import into the law right from
constitutional be free and seizures
unreasonable searches developed distinctions, re-
subtle evolving
fined the common law body private property law
which, more than almost other law, shaped by
branch of
has been
America,
UNITED
STATES
validity
largely
Plaintiff-Appellee,
distinctions whose
is
States,
v.
historical.”
United
Jones
v.
257,
725, 733,
266,
362 U.S.
80 S.Ct.
DEMOPOULOS,
James G.
Defendant-
(1960).
concluded that there were no
obstacles involved in the instant case. principles Under the of Cardwell Lewis, 583, 2464, 417 U.S. 94 S.Ct. (1974); Coolidge L.Ed.2d 325 v. New
Hampshire, 443, 2022, 91 S.Ct. U.S. (1971); L.Ed.2d 564 Chambers v.
Maroney, 42, 1975, 399 U.S. 90 S.Ct. (1970);
L.Ed.2d 419
Carroll
267 U.S.
45 S.Ct.
(1925),
George Collins, Chicago, 111., B. for de- fendant-appellant. Thompson, Gary R. Atty.,
James U. S. Starkman, Mullen, L. Michael P. Asst. Attys., Chicago, 111., plaintiff- U. S. appellee. HASTINGS, Before Senior Circuit
Judge, PELL, and CUMMINGS and Cir- Judges. cuit CUMMINGS, Judge. Circuit Defendant was indicted in the North violating ern District Illinois for 18 1623(a), pro specifically U.S.C. which § knowingly making scribes material false declarations while a witness grand jury.1 charged The indictment making following defendant with false declarations: “that he did not meet in the Rex Res- Chicago in taurant in or about Febru- ary with 1969 Peter Boznos and Sam Crispino, that he did not receive provides pertinent any eluding book, paper, U.S.C. in record, § 1623 document, part: recording, material, knowing or other “(a) any proceed- any Whoever in under oatli same to contain false decla- material ing ancillary any ration, before or court or shall be fined than more grand jury knowingly $30,000 imprisoned of the United States or not more than five any makes years, false material declaration or or both.” information, makes or uses other in- agreed envelope, parcel package upon phone from ei- over the is not or explained any testimony Crispino Boznos in ther or Peter in record Sam Chicago here.) in or in and is not relevant Boznos testi- Rex Restaurant February 1969, joined that he did fied at their about and that defendant them any money either not receive from table few later. The defend- minutes put Crispino Crispino in or ant told should Sam Peter Boznos Boznos Chicago money Crispino in or did Rex Restaurant about the so, under the table. up February, picked and left 1969.” the restaurant five minutes there- to six trial, defendant was con- After a after. victed sentenced to 18 months and was prison. appeal, positively raises On Boznos identified defendant alleged recipient Crispino errors and asserts $2,000. numerous considering as the of together, man, recipient he is entitled
them described the as a slender weighing height, least to new trial. affirm We 5'6" 5'7" pounds, black, wavy hair, conviction. about 30 years old, appearing to be of Sufficiency the Evidence Spanish Greek or The de- extraction. challenges first Defendant fendant Greek was of extraction and de- sufficiency evi evidence. years age, scribed himself as early dence shows that 1969 Samuel weighing tall, pounds 165 to 170 5'6^4" *5 Crispino purchase to the contracted Cafe having However, and black hair. at the on North in Chablis Avenue Chica West trial, when if asked the man to whom he go. represented He was in transac this passed $2,000 had the in the court- was Crispino attorney tion Peter Boznos. room, Greg- Crispino uncertainly selected purchase made of the restaurant con his ory defendant, Vlamis, relative of a tingent procuring liquor on a license. who in was seated the first row of origi closing At the that the was time years old, benches. Vlamis was 30 nally mid-February 1969, in scheduled pounds Crispino and it 5'11" made tall. license, liquor he had not obtained the plain that he was not this sure that was although applied on he had for it Janu the man in the Rex Restaurant. ary 28, liquor fi 1969. The license was Boznos’ identification of defendant nally February 26, 1969, issued on and alone, por- Crispino’s does not stand for closing place the on took that date. person of trait the other at the Rex Res- Crispino’s application While license exactly taurant self- matched defendant’s pending February was in Boznos though Crispino description, even also anonymous telephone received an call hesitatingly Gregory selected Vlamis from someone who go he a said was Chica- bagman. the Department Police The vice officer. testimony judgment, In our the of Crispino’s liquor said caller application license Crispino supported amply Boznos and approved until would be jury’s verdict. It was within $5,000 payment a was made. caller pi’ovinee for assess the and not us to agreed payment of later $3,000. to reduced credibility principal of the Government’s go Boznos was instructed witness, Peter Boznos. Chicago mid- the Rex at Restaurant Admissibility Telephone Conversation night pay- on date a certain to make ment. told defend- Boznos was that the Defendant next asserts that present ant would restaurant be error court was reversible for the trial pick up money. permit to consider afore days telephone call, telephone A few after this said that Boznos conversation seeking Crispino Boznos and met at the Rex had with the unidentified caller exchange Crispino brought $5,000 police ap Restaurant. him a with bribe package containing liquor $2,000. (Why proval Cris- license. Defendant brought pino inad- $2,000 $3,000 had when contends that the conversation Admissibility Jury Testimony hearsay. counsel Grand
missible Government prove offered not to this conversation Defendant’s back- the truth of the matter but “as August grand jury ground operative facts to show subse- pages. of 54 and consisted transcribed quent and other actions witness- began, for de- Before the trial counsel Crispino]. limit- This es” and [Boznos agreed to fendant and the Government purpose ed was reiterated to testimony. deletions in numerous closing argument, prosecutor’s and transcript large portions Thus of the following gave lim- the district court including by agreement, were deleted iting instruction: many pages. The settled whole court questions admissibility where “During the examination of wit- parties agreement. De- could not reach Boznos, ness Peter he testified con- objec- fendant raised a uniform set of cerning phone conversation he applied they tions and asked that be from the an unknown individual part transcript each of the that he chal- conver- Austin Police District. This lenged. argued portions He that these you sation was admitted to allow transcript of the should not be admitted subsequent which understand actions they into vant, irrele- evidence because were were Boznos and taken witness prejudicial immaterial and de- not offered for the others. fendant. At the threshold truth of the matters contained presence jury, and out of de- phone you conversation, are to objections fense counsel made these phone consider that conversation portions much of the non-deleted pertains subsequent as it ac- many transcript, and the sustained Boznos and oth- tions witness causing objections, of his further dele- ers, you are not to it for consider agreed tions. The court to treat defend- anything, proof of the truth of nor as objections having ant’s been reiterat- in that conversa- matters asserted *6 transcript ed when the offered into was tion.” evidence at trial. setting, permissible In this it to ad- was appeal belatedly On challenged testimony. mit Trit- the See argues portions that of the tran Backer, (7th sis v. 1974); F.2d 1021 Cir. 511 script relevant to whether defendant’s Hickman, 426 States v. to the false were “material” declarations (7th 1970). F.2d 515 Cir. grand jury’s investigation should not support In jury. (See of his contention that 18 have been read to the U. telephone hearsay 1, supra.) ap conversation was 1623(a), note S.C. § prove contents, used to parent the truth of its for contention is basis this prosecutor rule, Circuit, claims that well established this bag- materiality perju could have characterized him as a that the in a issue did, closing argument, ry charge man in the only he question for the is law Rivera, if the conversation was so used. 448 F.2d court. United States wrong. simply (7th 1971); This claim is Defendant 757, 758 Cir. United States lawyer Parker, (7th was a influence without official 447 F.2d Cir. applications liquor 1971). point However, on light for licenses. at no in the pro Crispino pages transcript of this and since more than of collo viding favorably $2,000 ap quy to affect his counsel with between court and entirely jury plication, proposed could infer relation to the did de deletions apart telephone suggest por from the conversation fendant’s counsel that bagman transcript that for defendant acted as tions of the relevant to mate accepted riality differently someone else when he treated than should be midnight $2,000 portions. Indeed, in the Rex Restau other admissible at colloquy specifically February rant in he outset of lenged might portions prosecutor wilfulness, read stated that the bore transcript portions jury which was defined in of the another of the in- those given by judge. In this structions the court ruled admissible. the trial Fi- that nally, objec- posture, accept considering defendant’s defendant’s we cannot argument trial, tions that there were two before the court sustained overdue prejudicial evidence, that one for the those considered most kinds of admissible defendant, despite arguable jury court and and one for the court their ma- teriality. alone. F.2d In Gebhard v. United Alleged Prosecutor’s on the Comment the full tran Subject Taking the of Defendant’s script testimony of defendant’s Stand grand jury before the was admitted During testimony of FBI petit during perjury trial. On Agent Johnson, defense counsel made an review, the court there concluded objection and stated: argu merit the Government’s [testimony “This of Mr. Johnson] transcript ment that full ad “The impeaching anything any- isn’t or materiality per missible show the body, defense, or of the or testi-
jured subject matter to the mony given.” that the defendant has grand investigation.” jury’s 422 F. case, 2d need not Thereupon prosecutor at 289.2 In we replied: this go adopt do not so far as to Honor, “Your we will wait until he holding general as a rule. conclude We to im- takes stand [defendant] only portions of the that the non-deleted peach It im- him. is not offered to transcript admissible on the issue were peach part him. is offered investigation materiality of could, to the government.” the case in chief of the therefore, be read Defense counsel made no any objection they the absence of transcript Not remark. until 15 should have been considered pages later did he move for a mistrial judge. ground prosecutor’s on the com- Moreover, the defend even had ment. At- The Assistant United States properly requested torney explained ant an invited that “It was inspect portions resulting alone of the tran response,” those in the denial script agree materiality, that bore on there for a mistrial. motion We grounds allowing were alternative remark did not the Government por to consider the unexcised on defendant’s constitute a comment *7 transcripts jury testify compel The to the read tions. failure far to nor thus were admissible on several issues which There been him to take the has stand. by fleeting jury: were be showing to decided whether no whatever that “knowingly” testify. defendant episode made false prompted to grand (note declarations before the Therefore, no defendant has shown since 1, supra) and, in with in prejudice prosecutor’s remark, accordance from the structions, “intentionally denying whether he his did not err the trial court because, again committed the act” ac motion for a mistrial. cording charge, to the “The crime Boznos Cross-Examination of charged requires proof in this case specific Defendant contends intent before the defendant can right unduly Furthermore, be convicted.” his the chal- restricted apparently here, In Richards v. was 329 F.2d statement.” As there involving perju- request be considered another no such making ry trial, only by its materi- trial court the court held that certain testimo- ny ality ruling. was admissible enable the trial court “to materiality to determine the false sustaining justify by to defendant would Boznos dice which
cross-examine objection following question: new trial. to the you give any “Well, consid- did ever Non-Compliance Federal with Rule 30 of thought going and over eration Rules Criminal Procedure Command- see Police District [Austin Defendant that reversal is re claims this?” Mark about Thanasouras er] quired because court’s violation urges question Defendant Rule of the Federal Rules of Criminal in order to
should have been allowed
in
Procedure.3 Both sides tendered
that,
each
since the two men knew
show
structions to the court for
considera
its
well,
other
Boznos would have dealt
custom, the
tion.
In
with his
accordance
directly
than
rather
Thanasouras
trial
said that he would not hold a
through
The trial court was
defendant.
he
conference on instructions unless
limiting
within its discretion
suggestions
wanted
and comments from
by refusing
ques-
cross-examination
counsel,
he
inform
in which case would
merely
tion
cumulative
because was
them. He added:
prior testimony about the close relation-
in-
“But I don’t have conferences on
ship
and Thanasouras.
between Boznos
structions,
you
especially
quote
where
law,
forth,
Cross-Examination
Character Witness
the statute
or the
and so
upon
you
relying.
which
are
anyhow.
Most
During
may
them are stock
There
placed
called
his
in issue and
character
I
be one or two where will want
good repu
testify
witnesses to
as
you.”
hear from
appeal
contends
tation. Defendant
However,
judge explained,
he
as
put
prosecutor
question
that a
“carefully
in-
considered each written
during
of one of these
cross-examination
presented by
struction
counsel for the
prejudice
caused such
witnesses
defense,
and for the
and
Government
required.
wit
mistrial
Defendant’s
was
court caused each instruction to be
ness
asked:
was
‘Refused’, after
marked either ‘Given’or
per-
your
“In
with other
complete
discussions
law
full and
research
you
Demopoulos,
given.”
did
sons
pertaining
about James
to each instruction
that he had
hear the discussion
ever
denying
motion
After
defendant’s
spectator,
picked
while a
out
given
acquittal,
recess was
a 10-minute
building?”
defendant, in this
in-
that counsel could examine
so
given
jury.
about
be
structions
ques-
that the
concedes
Government
requested
counsel
additional
Neither
improper. The
and
tion was irrelevant
recess,
made
counsel
time. After this
question
in an
resulted
arguments
respective
jury,
their
immediately
Then coun-
sustained.
arguments
followed
were
their
withdrew
for the
sel
Government
charge.
question,
the court
instructed
charge
disregard
and while
circum-
it.
these
After
deliberating,
preju-
in the absence
stances,
no
there was measurable
*8
completed.
jury
arguments
provides
are
after
the
3.
:
Rule 30
any portion
party may assign
evi-
as error
of the
Xo
“Instructions.
At
the close
during
time,
charge
un-
the
therefrom
of
the
or omission
dence or at such earlier
jury
any
reasonably directs,
objects
re-
the
less he
thereto
as the court
stating
verdict,
may
requests
dis-
party
the
its
that
tires
to consider
file written
objects
tinctly
jury
and
as set
to which he
the law
the matter
court
instruct
the
on
Opportunity
grounds
objection.
requests.
same time
the
of
in
At
the
forth
objection
out
copies
requests
make the
he furnished
shall be
to
shall
of such
request
jury and,
hearing
parties.
in-
shall
of the
of the
The court
to adverse
upon
any
presence
party,
of
proposed
of
out of
action
form counsel of its
jury.”
arguments
requests
to
their
jury,
but
shall
instruct
the court
according
plains
ground
and
then
its
of the instruction on the
custom,
permitted
defense counsel was
that
circumstantial evidence
present objections
telephone
the instructions. was in the
conversation receiv-
practice
anonymous
He
on the
ed
noted
record that this
Boznos from an
caller
by
meaningful
give
requesting $5,000
po-
did not
the court the
in order to secure
by
opportunity contemplated
approval
liquor
Rule
lice
of his
license. Since
any
correcting
testimony
to which this
in
instructions
was not received
evi-
proof
objection
After consid-
made.
dence as
truth
of the mat-
ering
objections,
argues
asserted,
ter
the court could
defendant
that
but
have issued corrected instructions
Government should not have tendered
overruling
so,
did not
thus
this
choose
do
circumstantial evidence instruction.
objections
However,
testimony, Crispino
sub silentio.
in his
de-
scribed the
he
in
man
and Boznos met
practice in
We condemned this
shortly
the Rex Restaurant
mid-
after
Drunen,
501 F.2d
United States Van
night
February
descrip-
in
1969. This
1974),
(7th
have noted
Cir.
and
descrip-
tion tallied with the defendant’s
longer prevails
con
it no
in trials
enough
tion of
and
himself
circum-
July
1974,
24,
after
ducted
this
stantial evidence to
this
warrant
stock
when Van Drunen was decided.
instruction.
700,
Clay,
F.2d
United States
vi
we held that
708-709
Defendant next claims that the
clearly
do not
immunity
olations of Rule 30
instruction was unfair to de
prejudice
will
result
jury only
it
fendant because warned the
Three
not result
error.4
testimony
reversible
that “such
immunized
[of
wit
our decision
one-half
after
months
weighed
must be examined and
nesses]
by
Hamling
Clay,
Supreme
Court, in
greater
jury
care than the
87,
v. United
testimony
418 U.S.
94 S.Ct.
ordinary
of an
witness.” The
ap
specifically
41 L.Ed.2d
weigh
was also instructed that
proved
approach to
viola
ing
this
Rule 30
it
of each witness
af
tions. The Court
that where it
held
relationship
should consider his
firmatively appears that a defendant
Government or the defendant and
prejudiced
not
re
the violation
interest
he
had in the outcome
required. Consequently,
versal is not
we
jury charge
the case. The
also de
will examine the
four instructions
scope
scribed
extent and
of the im
complains
which defendant
and to which munity granted witnesses Boznos and
permitted
objection
he was not
to make
Crispino under 18
All
U.S.C. §
before the
in order
de
retired
equivalent
this was
to defendant’s
affirmatively appears
cide
whether
refused instruction L.
L
Instruction
from the record that the defendant was
would have
told
testi
prejudiced thereby.
not
mony of immunized witnesses “should be
suspicion
received with
and considered
Propriety
Instructions
greatest
very
scrutinized with the
of care and caution.”
denial of
The
Initially,
complains
repetitive
tendered instruction as
of in
LaBuy
giving
Instruction 6.04
given by
structions
the court was not
relating
(33
evidence
circumstantial
prejudicial to defendant.
572-573).
be
F.R.D.
complains
low was that this instruction “contains
Defendant also
interpretation
descrip
or
erroneous
word “informer”
have been
should
immunity
tion of
included in
what constitutes circumstantial
instruction.
grounds
No
was This was
one
evidence.”
further elaboration
*9
given.
objections
Furthermore,
Court,
In this
defendant com-
the trial.
Accord,
Schartner,
(3d
1970); Lovely
4.
Boznos and were not are to only they phone for testified when ordered to consider that conversation grants immunity. pertains do so under In subsequent of use as it ac- closing matter, this fault we cannot tions of the oth- witness Boznos and judge ers, you trial lowing for the of the fol- inclusion are not to it for consider immunity in- anything, proof sentence in the the truth of nor struction : the matters asserted that conversa- tion.” govern-
“However, fact that this granted immunity argues ment witness was Defendant that instruction this justification permitted not a under the paint also is “to the conver- your finding gilt not for a defendant law sation with the of truth.” To the guilt guilty you contrary, if find that his has the instruction reminded the proven beyond telephone reasonable been that the conversation was your of the from doubt consideration not offered for the truth of the matters disagree evidence.” therein. We this instruc- telephone tion “is the use of conver- complains Defendant next truth, story sation, as corroborate parenthetical follow of the clause in of Boznos.” ing specific from the intent in sentence Therefore, since record affirma- struction which jury: the court read tively shows that the defendant was not prejudiced by any of the instructions may be determined intent “Such attacks, which he of Rule the violation from all the surrounding and circumstances facts compel 30 does not here. reversal (and from simi- the case transactions).” prior lar crimes and Newly Discovered Evidence paren- that the The Government admits argues Defendant inadvertently includ- thetical matter was denying trial court his motion erred in ed in the instruction furnished allegedly newly for a new trial based made to court. No trial discovered Defendant claims evidence. may instruction, this that error so over, that after trial was trial assigned Further- Rule 30. be under indi counsel first learned of a document more, no had been evidence since cating Thana that Police Commander presented of “similar crimes and approved Crispino’s application souras transactions,” not have could February 5, liquor for license on surplusage been misled. Therefore It is defendant’s contention plain un- error not be should considered newly evidence so-called discovered 52(b) re- is not der Rule and reversal because crucial to his defense would be quired. intended it indicates the bribe The last of which already instruction approval to secure an complains to the tele raising relates given, thereby about doubt phone Boznos and key conversation between Government’s anonymous instruction caller. truth, document was witnesses. read as follows: counsel to defendant’s then shown copying two prosecutors and offered “During the of the wit- examination previously prior to and was months Boznos, con- Peter he testified ness by him on subpoenaed Jan and received cerning phone he had conversation day 31, 1974, it was uary from the with an unknown individual by government counsel. him shown This conver- Austin Police District. Therefore, considered it cannot be you to to allow sation was admitted Moreover, newly evidence. discovered subsequent which understand actions newly truly dis evidence, if even such Boznos and taken the witness were require district covered, would not for the not offered others. grant he trial because a new in that contained truth matters *10 certainly deprive de- proba did not incident reasonably conclude that its could of a fair trial. be to fendant not in a new trial would ble effect change v. Bal United States the result. judgment is af- conviction of The 1212, istrieri, F.2d firmed. 953, denied, certiorari 402 U.S. Judge PELL, (dissenting). Circuit 1620, L.Ed.2d 124. Where S.Ct. opinion persua- majority finally approved is un While the not the license was written, sively dispel February 1969, police I am unable til inves and a opinion tigation effect of the Crispino that the cumulative in Thanasouras’ dis of by appellant completed time various matters raised until some trict was not February deprive fair him of a is was such as after it reasonable Thanasouras, despite Accordingly, respectfully I dis- trial. that conclude approval, could have sent. his earlier formal adversely granting of the influenced the Since, however, of the determination Crispino up the time that ac license inci- whether the combination of several
tually received it. No new trial was re sufficiently a dents creates unfair quired. essentially a as to call for reversal is balancing process judgmental anal- Attitude Court Trial of ysis my being involved, I shall direct at- Finally, complains defendant aspects primarily this tention to two “anger,” expressed that ing court’s dur together, and I trial which when taken cross-examination, prej defendant’s they do not believe can be considered jury against udiced the him. The chal deprived Demopoulos separately, of a lenged remark of the court occurred aft fair trial. interrupted er the witness and (1) improper ques- The two are: read as follows: put saying tion to a character witness “Now, just a minute. You are on Demopoulos effect to the had that stand, you the witness and for- don’t previously picked as a defend- out get it. You are not in the well this ant in another in the federal courtroom court, you’ll and take the advice of building; (2) court house and the sub- [your] any- counsel to volunteer [not indicating sequent that a instruction thing], you up if haven’t till now.” finding that the defendant had explained The court then it did requisite specific intent could be based not want interrupt defendant and having upon his simi- been involved in volunteering start after own counsel prior lar crimes and transactions. him admonished volunteer. of, complained other trial incidents apologized, After the witness the court course, merely when added to this base likewise, did and, before the afternoon strengthen necessity trial. new began, session instructed the as fol- instruction, The error tendered lows : government given by not, by my “You should the tone of court, cannot be viewed in a noncontex- voice, any gesture my part, nor disputed tual vacuum. is not interpret having any prior there was no evidence of similar opinion guilt on the or innocence of crimes and transactions but the entire My venture, my this defendant. sole ease, tenor of the trial tried as preside sole mission here is to so period during widespread news- this trial, a fair obtains paper publicity Chicago concerning government and the obtains a fair police department, scandals in the trial, and that is all. I have inter- no strongly suggestive est whatsoever in the outcome of Demopoulos part lawsuit.” Particularly, those transactions. cautionary view of prior instruction reference criminal transactions apology, the court’s significance own this was further in the *11 1182
eyes jury question presupposes of the because of tion there is some the put indicating jury they to the character witness evidence may which Demopoulos picked “had been out think sufficient to establish spectator, defendant, hypothetically a in while as a facts assumed in building?” opinion court; and if there is ' they right no evidence which have a any do not deem that there ade- I consider, charge then the aid does not quate cautionary instruction to remove coming conclusions, them in to correct jury’s reference to from the mind this tendency but its tois embarrass and being a de- identified as may mislead them to them. induce fendant in another case in the same indulge conjectures, instead juxtaposition taken in courthouse when weighing testimony.” regard spe- with the instruction with objected present cific intent. Counsel The converse of the rule is question character witness well-settled rule in criminal that if cases support partic was sustained. Counsel there is no evidence to a jury defense, justified then moved instructed be ular the trial is disregard Only refusing completely. after to submit such defense to prosecuting attorney jury. Gosser, withdrew the United States v. 339 question 102, (6th 1964), did the advert court further F.2d 109 Cir. cert. de clearly improper question nied, 819, and then 44, 382 U.S. 86 S.Ct. 15 L.Ed. merely gov- stated, “[ejounsel more, however, for the 2d 66. No there should question, will ernment withdraw be an instruction as to which disregard jury supportive the court instructs the there is no evidence. asking question.” of that This con- In Collier, United States v. F.2d 313 veyed nothing jury more to the than the 157, (7th denied, 1963), 159 Cir. cert. question fact that since the had been 844, 1900, 374 U.S. 83 10 L.Ed.2d S.Ct. they pay withdrawn no attention should 1064, this court held in erroneous an specifi- to it. There was no admonition explaining “special struction the term cally giv- directed to the matter of not employee” because there was no basis in ing any fact, consideration to the or the the evidence and another instruction impropriety of disclosing, that Demo- proof assumed, which “with no poulos picked had been out a defend- fact, willing ready, that defendant was ant in another case. charged.” and able to commit the offense The error is made more serious implication The mere con- of unlawful fact that the incident case of involved a against charged duct other than that a mistaken identification. ground In is for reversal. comprehend I fail how Leggett, 566, United v. F.2d States 312 could not have been misled the refer- 574 issue prior ence to “similar crimes and trans- represented whether the defendant had actions” since no evidence had been agent. to be an himself F.B.I. The Gov- presented regard. very in this fact presenting its case claimed ernment long of lack of evidence has been deemed private he was not as a in- even licensed cogent highly reason for elimination vestigator. referring The trial court in preclusion or of reference in an instruc- charged contention, tion. part: right “And had no therefore to seek Thus, Breitling, in States concerning registra- information (1858), 254-255, U.S. L.Ed. 900 guests they tion of had and that Taney Mr. Chief stated: Justice trespasser.” at the most he a clearly “It error in a court to is reversing, the court stated: charge upon supposed or con- jectural facts, invited and wel- “If he had been an state of which no ev- guest dif- come have made no idence has The instruc- would been offered. gave flight signifies 'Trespass’ or a trans- instruction ference. wrongful act, immediately gression concealment after the com- or Nolan Co., may mission a crime be N. R. considered as York &. H. New H. 305; hearing guilt just in the a fact 39 A. L.R.A. Conn. *12 particularly in the case bar or and this is true similar crimes laymen, unacquainted with minds of transactions could be considered bear- ing upon legal specific of definitions. The the existence of the niceties intent. Morris, justify In there no facts of this case did not evidence that was ‘trespasser’ applying the defendant term to the had fled or concealed him- the may have appellant and use well self. Here there no of its was evidence Morris, jury appellant similar In led the to infer that the crimes. “the danger might going just by jury that been committed a crime to the have indulge height- conjecture” led certainly to the It tended di- was motel. to by ened real issue testimonial reference to the vert them from the and sole fugitive. present defendant as In in the the ease.” case, danger conjecture of the was The mere words “as inclusion of the heightened by (in reference im- any person” in saults an instruction proper question during testimony) to dealing a Count of an indictment Demopoulos having picked out as a charge assault, which did not al Morris, defendant in another In case. though of the section the statute was a there should be reversal. There which the based did include Count was here. person,” deemed “assaults was seri enough require to ous error reversal prejudice of the unremoved refer- appellant pre “and so clear that is not plus ence to criminal identification raising cluded from it here notwith erroneous instruction was made more standing object that he failed to to stringent impact present in the case charge Roach, v. below.” United States by question the fact the basic 1, 4 (3d 1963). 321 F.2d Cir. presented to the to was decide as ordinarily credibility While an incorrect instruc matter of whether to believe if tion will favorable to Boznos who identified the defendant as prejudicial him, be person not deemed to money paid to whom the magnitude a false of suf “[w]hen issue or whether to believe the defendant who nullify proper to ficient any participa- consideration took the stand and denied [by in eye issues is inserted into a case only tion. The other to witness structions], proper administration identify transaction to De- was unable justice mopoulos is thwarted and a conviction so in the courtroom. On the presented based cannot stand.” jury, Michaud United one-to-one basis it States, (10th 131, say impossible scales-tip- 350 F.2d 133-134 Cir. is 1965). in ping There the court held that the feather not the false criminali- ty clusion of a false ease was issue issue introduced and is answer no plain 52(b), error say under Rule Fed.R. that the introduction of the false Crim.P., requiring In case reversal. issue was inadvertent. Also other fac- interjected, before us the al trial court tors here must be considered as further inadvertently pat denigrating beit but credibility, nevertheless the defendant’s ently there, law. an extraneous issue of such as the trial court’s rebuke preju may quite “Extraneous law be defendant as a witness. dicial as extraneous Verdicts facts. true, course, proper It is that a should be based on the evidence in objection was not made the instruc- pertinent applied the case and the law as highly However, improper tion. in the Hill, to that evidence.” United States v. way in which the matter instructions 279, (5th 1969). 417 F.2d 281 Cir. was handled lack is States, surprising. helps Demopoulos’s Morris United 326 F.2d mis- 192, carriage justice very the district little that longer concurring opinion
district court
ing
is no
follow-
Krulewitch v.
440,
cursory procedure
in the
S.
utilized
U.S.
(1949),
present
further reference
Ct.
those have
careful examination woúld reflected Q ver- defendant’s instruction given by
batim the court with exception of the added crucial words prior “and from crimes and similar ROBINSON, In the Matter Jack transactions.” Bankrupt. No. Docket 74-1351. regard to the other contentions With defendant, emerge raised I from Appeals, United States Court record with the examination Second Circuit. feeling distinctly uncomfortable Argued Sept. 1974. along sight line somewhere was lost Decided Nov. supposedly issue which was sole being tried and that whether Demo- poulos falsely grand jury to a denied picked package up
that he had ey mon- specified February at a res- Chicago
taurant from one of two
named individuals. This was not a charge justice
of an obstruction of nor a
bribery case, pro- nor even a disbarment
ceeding. Although parties stipulat-
ed clearly facts the trial which rather materiality of demonstrated the grand challenged jury testimony
although the court treated the materiali-
ty being determination jury,
and not the nevertheless substan- portions grand jury
tial
went before the trial as to occur- sup-
rences both before and after the
posed meeting. restaurant viewing
Finally, the record as a
whole, myself I find disturbed
frequency with which resort has cautionary
be taken to instructions to
save the fairness the trial. Under case, Mr. circumstances of this Jus- quoted
tice in his Jackson’s often words