United States v. John D. Parisien
574 F.2d 974
8th Cir.
1978
Check Treatment

*1 informant, contained all information re- motion;

quested in and that defendant’s America, Appellee, UNITED STATES of verbally had counsel revealed defendant’s counsel the name of agreed formant and had to make PARISIEN, Appellant. D. John the informant available to defense counsel No. 77-1879. for an at interview a convenient time. Thereupon, grant the court declined to Appeals, United States Court of particulars. motion for a bill of The file Eighth Circuit. further makes it clear that counsel for the defendant did know the of the infor- name Submitted April 1978. mant, Myrick, but that the Assistant United Decided May Attorney in prosecu- tion refused disclose the address

informant because the informant had stated

that he faced “possible physical harm or his exposure

death from as an informant.” glean

We also Myrick from the record that

inwas the office of the Assistant United

States Attorney several days before the tri- commenced,

al refused talk to the

attorney for the defendant. It appears fur-

ther the government subsequently

made an effort to locate Myrick at his last

known address at place his last of em-

ployment, but Myrick was not located and

apparently had disappeared.

During the argu- course of the closing

ment of counsel for the government, the

absence of informant Myrick became the

subject of a rather be- heated discussion

tween the Assistant United Attorney

and counsel for the defendant. The court

engaged in the colloquy and instructed the

prosecutor to informing refrain from Myrick was equally available to

the defendant the defendant procured attempted at least Myrick’s secure presence at the trial.

We think the court handled the matter

properly. In the event the case is tried however,

again,

should conscientiously attempt to locate

Myrick subpoena him or take other

appropriate action to insure that he will be

present in court during the trial so that the subject Myrick to an exami-

nation.

Reversed and remanded. *2 Britton, Atty., Gary

James R. U. S. Annear, D., Atty., Fargo, Asst. U. N. S. brief, for appellee. HEANEY, STEPHENSON and

Before Judges. PER CURIAM. jury from a appeals

John D. Parisién larceny of guilty verdict him a viola- territory, of Indian the boundaries Appel- 661 and tion of U.S.C. §§ ap- on this Parisien’s sole contention lant that the district court’s1 instruction peal is concerning voluntary jury We affirm. tion erroneous. following instruc- Instruction (Defendant’s Requested tion 7)No. on intoxication: or drunkenness

Although intoxication legal excuse alone will provide never crime, the fact aof for the commission person have been intoxicated may of a at the time of the commission negate the existence of intent. a defendant acted evidence that of intoxica- while in a state

failed to act determining considered tion is to be acted, or or not the defendant whether act, failed leaves the in the case If the evidence whether, doubt with a reasonable intoxication, because of capable the mind of the accused form, intent to forming, or did commit the crime the accused. mind that always will bear in a defendant imposes upon the law never of duty in a criminal case the burden or calling any producing witnesses or evidence. Blackmar, Federal 1 E. Devitt and C. Instructions Lanier, Jury Practice and Knox & A.

Kenneth Olson D., Olson, appellant. for Fargo, N. on brief custody Benson, General Judge, Parisién to the Paul

1. The Honorable Chief years. period three for a for the District of States District Court Judge sentenced Dakota. Benson North Chief 8,10 12). However, in- Nos. The district court did not use at no time did struction, following gave exception defense take to the court’s intoxication: instruction on nor did he failure give the court’s

A intox- condition or state Defendant’s ication, the evidence to have if shown *3 supra. existed in at the time he the Defendant allegedly committed the crime is provides part: 30 Fed.R.Crim.P. rule, a general not of itself a defense. As party may assign No error any portion as excuse, voluntary intoxication affords no charge of the or omission un therefrom

justification for a crime or extenuation objects less he the jury thereto before committed influence. under its verdict, retires stating to consider its dis But, whenever the actual existence of tinctly the objects matter to which he any particular motive, or intent purpose, grounds objection. is a necessary element to any constitute As this court has stated before in reference particular crime, species you 30, to Rule Rule 30 is “The to may take into consideration the fact that adequate opportunity afford an for the trial time, the accused was intoxicated at the judge to correct mistakes in his in determining purpose, motive or for the opposing party keep to the record intent with which he committed the act. Phillips, clear of error.” v. United States Thus, in the larceny, crime of of which 388, 1975). 522 (8th F.2d 391 Cir. Defendant is accused in this specific intent to steal Our review of the record convinc purloin is a necessary element es us that the of the crime. evi- district court was afford dence that a opportunity alleged while in ed the acted to "correct e state of intoxication is to be considered in mistakes in voluntary th intoxication in determining whether or not the defend- struction. Parisien’s initial tender of an ant acted with specific instruction, objecting alternative without to The weight to be the evidence error in the final charge court’s that question and significance concerning to at- does not it, tach to in relation to all the other comply Rule 30. United v. States evidence, are for you 1026, to Byrd, (8th 1976); determine. 542 F.2d 1028 Cir. United v. Phillips, supra, States 522 F.2d at Parisién contends that instruction Williams, 391. See United 172 given by the court failed to instruct 290, 295-296, 950, 521 F.2d the accused if they had a We are aware of the district reasonable doubt as to whether the accused general counsel, court’s statement to after had the capacity to form the intent all specific exceptions had been voiced required for larceny. the crime of counsel, requests that “All for in except structions as included within the failed to instruct in accordance general denied, charge are and counsel are North Dakota statute. deemed to have taken 'exception 8, record reveals that on November requested were not includ 1977, out presence jury, This, however, general charge.” ed in the attorneys made specific objections to the does not relieve counsel making specific district court’s proposed instructions. Pari- exceptions under Rule 30. sien’s attorney took specific exception to the court’s instruction concerning possession objection there was no timely Since of property recently (Instruction stolen instruction, No. 15). addition, attorney Parisien’s specifi- regard we will it as only reversible error if cally excepted to the court’s failure it affects substantial rights. Fed.R.Crim.P. clude three of Parisien’s Gambina, instruc- 52(b). United v. 564 (Defendant’s tions 22, (8th 1977); Instructions F.2d 24 Cir. United v.

977 Littlebear, acquit. United States v. 902, 1977); duty (8th 906 Cheyenne, 558 F.2d Cir. Robinson, 1181, 1976); Goings v. (8th Cir. F.2d United States States, United 1976), (8th 429 U.S. n.3 Cir. (1977); 1967). 51 L.Ed.2d 550 in the instant Although Cir. case the Hinderman, court’s failure to include a statement about reasonable doubt in the not rise to the instruction did level of not find We do plain error, appellant’s Requested Instruc- rights substantial the district Parisien’s tion No. 7 in 1 Devitt found E. and C. volun court’s failure to include within the Blackmar, Jury Practice Federal and In- tary intoxication instruction a statement 1977)2 structions was the axio reasonable It is appropriate give. one to matic instructions should be as a whole. *4 construed also the Kershman, Cir.), changes law, in North Dakota N.D.Cent. U.S. require Code (Supp.1977), 12.1-04-02 re (1977). The court’s L.Ed.2d 178 instructions versal. Although applicable the North Da the the jury fully to the set out burden of change, undergone kota statute has in our prove guilt the defendant’s the opinion the substance of statute has beyond reasonable remained the Accordingly, the same. 9, in four essential which the elements changes are not in the statute ones which stated, were included the follow error require plain ing: taking “That in the 270 caliber rifle rights. Parisien’s substantial willfully the Defendant acted scope, Affirmed. intent to steal or purloin.” before, This “As by: was followed stated upon burden is Judge, concurring. prove essential each of these elements be I concur in the result. yond in In Again a reasonable doubt.” was “If

struction No. 19 the reminded reason proved guilty beyond be accused doubt, proved guilty,

able say so. If not so persuaded when

say so.” We are therefore whole, are considered as a

it error to exclude a state was not

ment doubt in the volun about reasonable

tary instruction. held, feel it

Having important so we approved

note has a volun- this court

tary intoxication instruction which includes statement on reasonable doubt and issue, considering a similar In case another case from North this court Dakota held that the fail- District of Columbia Circuit considered whether court, doubt statement ure to a reasonable trial which was identical include to the intoxication was re- improperly in this stated the instruction been not intoxication was versible because the whether or a defense proof. charge. Long burden of criminal misled Elk, Scott, properly persuaded This court found that We are However, controlling expressed the issue in that case here. instructed. in Scott are views objected improperly specifically was whether instruction was In Scott defendant phrased negative given. terms when the final phrased positive North Dakota statute terms.