United States v. Joseph C. Frady

progeny spring Miranda and its from a

frаnk fully realization that we do not un STATES, Appellee, UNITED workings derstand the the human v. particular, mind —in that we cannot be sure Joseph FRADY, Appellant. C. what external circumstances can overcome person the will of a in custody. Informing No. 79-2356. rights, thought, the accused of his it Appeals, States Court of dispel inherently works to coercive envi District of Columbia Circuit. ronment of confinement. Miranda Arizo na, at U.S. 86 S.Ct. at 1625. Ac Argued June 1980. cord, Michigan Mosley, 423 U.S. at Aug. Decided 1980. Among rights S.Ct. at 326. these is the silent, right to remain and the Court has Rehearing Rehearing En Banc made clear that right make this mean Denied Oct. ingful, interrogation must cease if the sus pect “permit so desires. To the continua interrogation

tion of custodial after a mo cessation,” mentary found, the Court has clearly purposes “wоuld frustrate by allowing repeated Miranda rounds of questioning to undermine the will of the

person being questioned.” Id. Similarly, continuing ques tioning despite the accused’s wish that

stop can create the impression po that the lice really did not mean what they said they

when him told he could cut off interro gation any time. See United States v.

Hernandez, (5th Cir.

1978).6 Because I believe police in this case did not follow the clear dictates of

Miranda, by Mosley, as construed I would reverse the conviction and remand the case

for a new trial at Hackley’s state

ment to Colvert would be excluded. ter?, may Only Geo.L.J. I raise these not do. last term the Su- emphasize Hackley’s factors to preme is not rigidity Court reiterated that Mosley police identical to and to show how the justified Miranda rule is because the need to sсrupulously right failed to honor his to termi- give police specific guidelines and courts out- interrogation. nate weighs the burdens on law enforcement creat- by abandoning ed traditional fifth amendment single question, might willing 6. A one analysis. C., voluntariness Fare v. Michael conclude, seriously right would not disturb the 707, 718, 2560, 2568, 61 L.Ed.2d Nevertheless, questioning. to cut off because (1979). Any attempt permit ques- some prophylactic Miranda is a rule that tries to only tions but not others would create confu- prevent police incursions into an individual’s sion. privilege against self-incrimination, its contours police they must be clear so that know what * with whom Michael Hamor

Kathleen Geltner, Washington, (appointed by D.C. Court), appellant. for se, Frady, pro Joseph the brief. C. Sendor, Benjamin Atty., Asst. U. B. S. D.C., appellee. for Charles F. Washington, Ruff, Terry, Atty., A. Michаel C. U. S. John Brooks, W. Farrell and Charles W. Asst. U. D.C., Washington, were on the Attys., S. brief, appejlee. for EDWARDS, McGOWAN and Cir Before FRIEDMAN,** cuit Judges, and Chief Judge, of Claims. United States Court Opinion for the court filed Circuit Judge EDWARDS.

EDWARDS, Judge: Circuit This is an from the trial court’s motion un- denial (1976) his der U.S.C. overturn § ground that murder conviction on the specific on malice and tent were defective. we find that Since error, least were in two of factfinding proc- substantially affecting the possibly precluding ess and verdict, we re- considering a proceedings. verse remand further for However, many after so because retrial for may be difficult either or the if the Govern- appellant, Government consents, ment trial court considers to be in the interest of after hearing parties, from both judgment manslaughter. enter a See United (D.C.Cir. 1970).

I. BACKGROUND

Appellant, Joseph Frady, and co-de- fendant, party appeal, who is grand were indicted in 1963 a federal * ** by designation Sitting pursuant Student to 28 U.S.C. Counsel. 293(a) (1976). § murder, degree murder, felony first mur- degree murder, second and man- der, robbery. they After a slaughter. degree ‍‌‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌​​‌‌‌​​‌​​‍elements of first degree were convicted of first murder and intent, murder include however, robbery; both defendants were premeditation; second is a acquitted felony murder. This court sub- killing done with malice but without sequently affirmed the appellant’s convic- meditation; manslaughter includes all other followed, tion.1 In the appel- unlawful killings done without malice.4 pro se to re- Thus, malice is the element lant filed numerous motions that distin- duce his sentence.2 guishes degrees both of murder from man- 1979, September In appellant filed a slaughter. (1976) motion under 28 2255 alleg- U.S.C. § The appellant jury claims that in- ing jury given that a instruction structions on malice were erroneous in two original trial in 1963 were defective and First, respects.5 judge trial equated thus denied him a fair trial. The trial specific intent with malice.6 The effect of

judge grounds denied the motion on the instruction, this according to the appellant, appellant could have or did raise “was to take the case out of the category of the issues in appeal his direct or in the place it in the category following various motions filed his convic- (Green murder.” Green v. United States tion.3 we Since find that there was I), 1368, 405 (D.C.Cir. 1968). F.2d 1370 See jury error in the ap- Perkins, States v. 1054, 498 F.2d trial, pellant’s and since we find that (D.C.Cir. 1974) (condemning the clearly prejudiced erroneous same instruction). Secоnd, right to a fair hereby judge reverse and remand. that “the law infers or structed the presumes from the weapon use of such

II. THE JURY INSTRUCTIONS the absence of explanatory mitigating or judge The trial the existence of the malice instructed the circumstances on each of the elements of degree first culpable (Tr. essential homicide” court, however, 1963, 1. The overturned the death appellant 4. In at the time when was in- imposed dicted, sentence and a life sentence in degree the D.C. Code defined first mur- place. Frady States, See killing v. United “purposely, 348 F.2d 84 der as a done either of delib- (D.C.Cir.) (en banc), denied, 909, premeditated 382 U.S. during erate and malice or” (1965). 86 S.Ct. 15 L.Ed.2d 160 felony. commission of a D.C. Code Ann. however, jury, acquit- § 22-2401 The felony appellant ted In 1965 the murder. filed four motions to judge vacate or reduce his sentence. The trial degree The Code defined second aas denied each of these motions. In 1974 the trial killing, excluding murder, first done judge modify denied another motion to the sen- aforethought.” with “malice D.C. Code Ann. appellant sought tence. In 1975 the to set (1973). Manslaughter § 22-2403 is “the unlaw aside his conviction under 28 U.S.C. § killing being ful Fryer of a human without malice.” alleging ineffective assistance of counsel. The States, (D.C.Cir.), v. United 207 F.2d appellant court denied the motion and the rt. 74 S.Ct. ce judgment. did not In 1976 the court (1953) (emphasis original). L.Ed. 389 See denied another motion to reduce the sentence. Wharton, United States v. In illegal 1978 the (D.C.Cir. moved to vacate an 1970) (malice is “the sole element sentence. This court held that consecutive sen- differentiating manslaughter”). murder from murder, robbery tences for in the context dispute 5. The jeopar- Government violated the ban on does not the conten- double dy, changed tion that the instructions were erroneous. sentences to run concur- rently. Frady, United States v. 607 F.2d 383 (D.C.Cir. 1979). jury, In his instructions to the stated: matter, preliminary 3. As a we note that there is determining wrongful whether a act is absolutely support no evidence in the record to intentionally done and is therefore done with finding of the trial raised aforethought malice .... any the issue of erroneous instructions in Transcript (“Tr.”) (emphasis Trial at 806. add- appeals motions or ed). after his conviction. ing language Fay some of broad v. argues that added). Appellant (emphasis Noia, 372 U.S. 9 L.Ed.2d instruction, compelling (1963), the Court in Davis held that a jury from prevented the sume prisoner, challenging federal racial com manslaughter. considering a verdict him, position grand jury that indicted cited in- question, each of the Beyond failure make a must show cause for his are identical They structions erroneous. timely objection required Rule given United the instructions 12(b)(2) Rules of of the Federal Criminal 1970), (D.C.Cir. requirement This cause Procedure.8 (Green I), 405 F.2d Green United States 12(f), provides that based on Rule 1968), court found (D.C.Cir. where this objections “shall failure to raise constitute to be reversible of the instructions the use thereof, waiver the court for cause but error.7 may grant from the waiver.” shown relief that, cause, Court held absent REVIEW III. OF STANDARD untimely 12(b)(2) precludes challenges Rule object not appellant the did Because grand jury arrays, to even when chal such here in instructions at triаl the grounds. 411 lenges are on constitutional whether the we first decide question, must 242, U.S. at 93 S.Ct. at 1582. magni such in the are of errors The in held that both Court Davis also the Govern that we can overlook what tude “the for Rule and the normal reasons the procedural his default. ment claims to be at statutory require rules of construction” outset, action is the we note that this At least strict a standard for collateral at- Thus, prob prisoner. a brought by federal 240-41, Id. appeals. tacks as for direct at do not come comity lems of and federalism Thus, concluded 93 S.Ct. at 1582. the Court matter. play into this stringent a that to allow less standard States, 411 U.S. negate Davis “perversely attacks collateral would 1577, (1973), is the 36 L.Ed.2d 216 entire- purpose by permitting S.Ct. the Rule’s an leading dealing availability require- with the more liberal ly different but much prisoners proceed- who ment waiver in federal habeas relief for federal collateral 242, Repudiat- ings.” at at 1582. objections at trial. Id. 93 S.Ct. fail to raise plainly specific Apart at 99 S.Ct. instruc- infer” intent. 442 U.S. from the two erroneous case, however, tions, disagree parties present a the the as to whether third at In the intent, instruction, dealing specific judge “you with that are not instructed the prejudicial require compelled as to presume also so erroneous he kill that intended to appellant’s conviction. On this reversal right from acts but to consider such have point, judge instructed the reaching them a of his intent” determination presumed person (Tr. 804). point, to intend the natural A is At at another probable consequences of his act. may [and] said intent be deduced from all “the 804). subsequently (Tr. Thus, re (Tr. 806). at The a while circumstances” (Tr. 806). peated appel The this instruction portion on intent holding in contends that under the Sand erroneous, lant they may clearly been have Montana, 442 U.S. strom v. sufficiently by subsequent qualified instruc instruction, this 61 L.Ed.2d 39 See tions to be free from taint. United States case, twice in this violated the Fourteenth (Green 11), (D.C.Cir. v. Green Amendment. 1970), cert. 91 S.Ct. Sandstrom, held In Court unani- States, (1971); v. United L.Ed.2d 447 Belton mously that similar law “[t]he instruction — (D.C.Cir. Because of person ordinary presumes intends case, however, disposition our we need this may consequences voluntary of his lead acts” — not decide issue. juror the reasonable to conclude that sumption is Even if it were rebut- conclusive. 12(b)(2) provides part: 8. Rule table, presumption impermissibly would рrior following trial: be raised must proof to shift the burden of the defendant. 442 2458, citing U.S. at Wharton (2) objections based on defects Defenses I. and Green in the indictment or information. Sandstrom, the Court also noted that the they might jurors “were told . . Davis, Following analysis set forth in The Government briefly argues we turn to Rule 30 of the Federal Rules of trial court dismiss a motion Procedure, provides which Criminal filed under section 2255 if the Government party may assign any portion prejudiced

No as error been ability in its respond charge or omission therefrom un- 9(a) to the motion. Rule of the Rules Gov objects the jury less he'' thereto before erning Proceedings Section 2255 for the retires to consider verdict. First, United States District Courts. note that the District Court did not dismiss refer to waiver Although specifi- does not petition for ‍‌‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌​​‌‌‌​​‌​​‍cally, general thrust of Rule 30 is to reason. Second, raising objec- foreclose the we do not find that the Govern tions to instructions on prejudiced responding unless ment to the appellant objected to the instructions at contrary, motion. On the since no eviden trial. tiary hearing required appel to decide lant’s quite Government is able to 30, however,

Rule must be read in con- respond to the 52(b), motion. junction provides with Rule which Third, provides Rule 9 also that the court affecting Plain errors or defects substan- cannot dismiss the motion if the “movant rights may although tial they noticed grounds that it is shows based brought were not to the attention of the he could not have knowledge by court. diligence exercise of reasonable before the 52(b), it appel- Under Rule is clеar that an prejudicial govern- circumstances to the automatically lant is not barred from ob- ment occurred.” Even if the Government jecting instructions on where prejudiced, were appellant, who has objection no has been raised at trial. In- been incarcerated and without counsel since deed, consistently it has been held in this conviction, position keep up his was in no that, though objection circuit even no was changes with the in the law on the constitu- trial, appellants raised at may raise certain tionality instructions. Thus we find appeal. errors on direct United See States that the trial court have could not dismissed McClain, 241, (D.C. 440 F.2d 245 Cir. petition under Rule 9. 1971); Williams, United 463 F.2d 958, (D.C. 1972); 962 Cir. United States v. IV. PLAIN ERROR AND THE Alston, (D.C. 551 F.2d 320-21 Cir. MALICE INSTRUCTIONS 1976). We authority follow this line of in our consideration of this case. casеs, applied In several court plain

Since, held, appeals error standard to from as the Davis court the stan- convictions allowing dard for based on erroneous malice in- 28 U.S.C. 2255 motion § States, on an issue not structions. In Belton v. United 382 raised at trial should be no (D.C. stringent 1967), less than the F.2d 150 the trial court standard in the Fed- Cir. had eral Rules of Criminal Procedure for review instructed the the law inferred appeal, on direct appropri- deadly weapon.10 we hold that the malice from the use of a ate standard for review in this plain the This court found no error and af- plain 52(b).9 error set forth in conjunc- standard Rule firmed conviction because of a plain Davis, prejudice” 9. Other circuits have used the error stan- standard set in be- forth reviewing dard in 28 U.S.C. 2255 motions § lieve that under the rаtionale of Davis the attacking faulty jury convictions based on in- “plain appropriate error” standard is the stan- example, structions. For States, in Tallman v. United dard for review in this case. See note infra. (7th 1972), 465 F.2d 287 Cir. court held that it would allow collateral relief give 10. The court in Belton did not the addi- only for erroneous if “the ef- instruction, given tional erroneous in the plain jus- miscarriage fect of a error awas present equating malice with tice.” tent. Although we conclude that the result in this case would be the “cause and same under the

511 judge the trial had issued two errone- cause First, error involved of factors. tion and the evidence of malice context, ous instructions that, was in single phrase only a thus concluded equivocal. The court was Second, the jury. unlikеly to mislead determine whether it could not jury’s reasoned in Belton court of murder the defendant jury found necessarily of first verdict faulty instruc- despite or because and de- premeditation finding of implied a Id. at 461. tions. meant liberation, in turn faulty malice despite the malice here jury found We conclude that also issuing v. United error in the two also Howard instruction. See committed 1967) instructions. (D.C. erroneous malice States, 291 Cir. aforecited F.2d 389 by reinforced the decision convic- This degree murder conclusion (affirming a second (Green II), 424 v. Green in United States the same given tion, where denied, (D.C. 1970), cert. F.2d Cir. Belton, in instruction erroneous 997, 91 27 L.Ed.2d S.Ct. malice was evidence of grounds which this court affirmed defendant’s cured partly the error strong and retrial, though the even conviction after instruction). subsеquent given one of the erroneous and Howard holdings in Belton in this case. The given malice instructions situations factual on “the over-all turned II expressly distinguished Green court v. United States those cases.” Green I, instruc which had two erroneous Green (D.C. Cir. I), (Green Mitchell v. Unit Id. at 913. tions. See gave both I the trial court In Green States, Cir.), (D.C. ed 434 F.2d malice instructions the defective 109, 27 L.Ed.2d U.S appeal, case. On present in the (1970) (noting that “the cumulative ef first de- the defendant’s court reversed erroneous malice instructions” is fect of two The reversal conviction. gree murder following the distinction set absent and mul- obviously militated I was Green States, II); Logan v. in Green forth give to in the instructions tiple errors 1968) (dis (D.C. n.10 Cir. errors, ob- the court noting these jury; it in part I in because tinguishing Green served errors”). a of volved “combination jury the know whether we cannot circuit, law in this In addition to the case or the incorrect guided by the correct policies case and the under- the facts instructions. portion of the 52(b) support our conclu- lying Rules 30 and short, I the court in Green at 1370. In Id. judge committed sion that errors raised the instructional found that substantial affecting appellant’s error the finding of jury’s that the doubts substantial the instructions rights. We reiterate that implied malice. necessarily premeditation judge may well have given by the trial F.2d In v. United States juror from con- precluded the reasonable reversed a (D.C. 1970), this court Cir. possible a verdict. sidering manslaughter as when the degree murder conviction overwhelming, second malice Were the evidence of here, of the erroneous judge give trial bоth But might the error seem harmless. given in equivocal.12 that were malice was malice instructions the evidence of trial, jury the present in the case.11 Based on the verdict after Green I and was obviously robbery the “plain error” be- concluded Wharton found court Belton, requires appellate Leventhal, the court to con- Judge con 12. Wharton who wrote probable impact, appraised Judge realisti- Leventhal sider “the in Wharton. curred cally, particular opinion instructional mistakes in United States of the the for the court wrote 1974), jury’s factfinding Perkins, (D.C. upon function.” 433 F.2d 498 F.2d 1054 Cir. court, appeal, a at 457. on direct reversed which the predicated on murder conviction second Although malice instructions. two erroneous point, appellant opinion is silent on the objection apparently proper trial. made the part parcel killing.13 More- judge. See United States v. over, the evidence at trial indicated that the Pinkney, (D.C. Cir. appellant did not enter the victim’s house 1976) (plain required error standard ap armed; he killed the victim with a weapon pellate court to consider the instructions as piece of chance-a of furniture. A man- a whole and to review the record to see slaughter finding verdict-a that the killing whether appellant prejudiced by was was without maliee-would have been con- instructions). A miscarriage clear sistent with this evidence. Since justice has occurred if was guilty apparently satisfied that the evi- of manslaughter but serving now dence in the record jury warranted a penalty for murder. See Bearden v. United manslaughter, struction on it would be States, (5th 1968), 403 F.2d Cir. anomalous for us uphold a conviction well have resulted from instruc- (1969) L.Ed.2d 808 (holding that Rule 30 foreclosing tions considering does “not bar 52(b) invocation of Rule charge the alternative manslaughter.14 where instructions have resulted in a mis reject

We the Government’s contention at carriage justice”). argument oral the erroneous instruc- purpose While the of Rule 30 is to allow presuming tion on malice weapon from a the trial judge to correct trial errors before sufficiently qualified by other instruc- retires, Williams, fact, tions. the trial judge told the jury 950, 956(D.C. 1975), Cir. no legiti- weapon always that the “is to be taken into purpose mate would by denying be served (Tr. consideration” This instruction 28 U.S.C. § motion in immediately was followed with the trial this case. At the time of his judge’s contested statement the law erroneous instructions were standard. presumes malice weapon. from the use of a Thus, appellant’s every right counsel had His instructions did not qualify pre- any objection assume that to the instruc- sumption.15 tions would have been futile. To rule oth- reject alsoWe argu- Government’s erwise would be suggest that trial coun- that, Belton, ment as in finding sel object should to all instructions in implies finding meditation of malice. Be- anticipation changes in the constitution- cause the trial in this compound- ality instructions.16 a sugges- Such ed his by giving errors more than plain- one tion borders on the absurd. instruction, ly erroneous simply we are un- able to tell whether followed must, therefore, We look to Rule 52 correct portion or incorrect of the instruc- (b) guidance 52(b) this case. Rule tions. (Green See Green v. United States designed protect the criminal defendant I), 405 F.2d at 1370. integrity and the judicial process. of the circumstances, Herzog States,

Under 664, these it v. United hardly can 666 (9th appellant Cir.), be doubted that the 844, was denied a 352 U.S. 77 S.Ct. right. substantial equivocal Because of the L.Ed.2d 59 proper The rule is trial, evidence at light ly and in of all the invoked whenever an substan instructions, appellant we find the rights here, suffered tial to a fair are threat prejudice faulty from the given instructions ened. In the instant it is axiomatic appellant robbery 13. Sandstrom, The convicted the 15. supra, We also follow murder, acquitted felony but him of mur- held that erroneous instructions were not cured certainly by suggests der. This that the instructions on was reasonable doubt and the presumption n.7, appellant not convinced that the entered innocence. 442 U.S. at 518 99 S.Ct. at victim’s house with 2456 n.7. an intention to rob him. separate 16. A issue here concerns whether the 14. We note that no instruction rule, finding erroneous, new the instructions given in Belton. See 382 F.2d at 155. applied retroactively. V, should be infra. See section integrity judicial process questions of the raises serious about the accura- appel refuse to review an cy trials, will suffer if we of guilty past verdicts in fact, may, lant’s claims when he have new rule given complete has been retro- wrong been convicted of-the crime.17 good-faith active effect. Neither re- by liance state or federal authorities on V. RETROACTIVITY prior accepted prac- constitutional law or tice, оnly remaining impact The issue to be re nor severe on the administra- tion solved here is whether the rule announced to require sufficed in Wharton and Green I should be applied prospective application in these circum- retroactively in this case. We hold that stances.

should. Id. at 241, at S.Ct. 2344. The recently Court discussed The Mullaney holding, eliminating retroactivity holdings declaring cer- malice, presumption “designed to di- tain jury instructions violative proc- of due minish the probability that an innocent per- Carolina, ‍‌‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌​​‌‌‌​​‌​​‍In Hankerson v. North ess. son would be convicted and thus to over- 233, 2339, 97 S.Ct. L.Ed.2d aspect come an of a criminal (1977), the held that Court its decision in ‘substantially impairs truth-finding Wilbur, Mullaney v. 421 U.S. 95 S.Ct. Id. function.’” S.Ct. 44 L.Ed.2d 508 condemning emphasized The Court key ele- presumption that created a of ments retrоactivity of the test for are that applied was to be to a defendant the error substantially impaired the truth-

who had been convicted before the Court finding process, and that it raised serious Mullaney. decided questions about the accuracy Id. verdict. at 2345. S.Ct. in Han- cases,

Quoting previous Court kerson noted that: Hankerson, the Court found that of new consti- Mullaney holding major purpose

Where the test, fit that for the in- tutional doctrine is to overcome an aspect structions issued the trial of the criminal substantially shifted the proof burden of to the defend- impairs truth-finding function and so ant.18 The Court found this shift to violate Parenthetically, meaningless objecting every we address the Govern- task of instruc- proper protect ment’s contention that the standard for tion in order to the defendant’s consti- rights. prejudice” review in this tutional case is the “cause and Davis, supra. The Government’s standard set forth in suming characterization of coun- Even as- object unper- sel’s failure to applied, as a trial tactic is the Davis standard Competent object suasive. counsel will find that has met that standard. This might those instructions corpus that he or she believes standard bars federal habeas review of erroneous, theory whatever the of the case. showing constitutional claims absent a of cause Moreover, Frady’s appeal, counsel on direct noncompliance applicable proce- with the attorney, who was also the trial made no at- objection dural rule-in this case at trial to the tempt explоit his “mistake.” showing instructions-and some of actual plainly prejudiced by prejudice resulting alleged from the constitu- judge. As men- tional violation. See also Francis v. Hender- above, tioned the evidence of record was con- son, 425 U.S. L.Ed.2d 149 finding manslaughter. sistent with a Had (1976) (applying prisoner), standard to state properly been instructed on both mal- Wainwright Sykes, intent, say ice and we cannot whether (1977) (same). 53 L.Ed.2d 594 they would have reached the same result. As There was sufficient cause for in Wharton and Green I the defendant here has object failure to at trial to the instructions. prejudice suffered sufficient to warrant rever- It was not until four after his conviction sal of his conviction. challenged that the malice instructions were erroneous, requiring found to be reversal. It is Mullaney presumed 18. The state law in malice expect unrealistic to circumstances, that counsel leaving would have under certain it to the gesture what, objecting made the futile of prove to at defendant to an absence of in malice time, standard instructions. As not- order to secure a rather than a above, require anticipate ed to counsel to fu- murder conviction. 421 U.S. at 95 S.Ct. at rulings encourage ture constitutional would the Winship, after so many years may

the mandate of In re U.S. be difficult for 25 L.Ed.2d either the appellant, Government or the if must proved each element of a crime be the Government consents and the Here, too, beyond a reasonable doubt. court considers to be in it the interest of argument, at oral the Government concedеd hearing after parties, both the presumption expressed the in the malice may judgment enter a man- of lightened the instructions Government’s slaughter. See United States v. proof against of in case appel- burden (D.C. Cir. juror, To the the presump- lant. reasonable So ordered. may in the present tion case have been no less influential than the rebuttable ON FOR SUGGESTION REHEARING sumption equivo- in Hankerson. Given the EN BANC. case, nature in this proof cal of the and the WRIGHT, Judge, Before Chief McGOW- misleading on instructions we find AN, TAMM, ROBINSON, MacKINNON, truth-finding the function was sub- ROBB, WILKEY, WALD, MIKVA, ED- raising stantially impaired, ques- serious GINSBURG, Judges. WARDS and Circuit accuracy jury’s tions about the ver- Thus, we dict. hold rules an- in I

nounced Wharton and Green must be ORDER application retroactive in this case.19 PER CURIAM. The Government have some concerns bane, The suggestion rehearing en holding about the effect this on the by appellee having filed been transmitted justice. administration of The Court in to the full and a majority Court Hankerson, however, quite clear that judges regular having in active service not impact “the severe on administration thereof, voted in favor justice” “require was not enough pro- ORDERED, Court, banc, en spective application” the new rule when appellee’s suggestion aforesaid for rehear- retroactivity the other criteria for have ing en 241, 243, banc is denied. met. been 97 S.Ct. at Thus, recognize while we interest in the outcome Government’s ON STATEMENT DENIAL OF we this note that would REHEARING EN BANC prejudiced by opposite least as .the MacKINNON, TAMM, ROBB WIL- outcome, oppor- for he has denied the been KEY, Judges: Circuit tunity fully fairly to be tried for man- slaughter аs well as murder. We grant rehearing would en banc States v. (Frady III), 636

VI. CONCLUSION (D.C.Cir. F.2d 506 1980), to ascertain wheth- er the judicial upon denying The District Court’s order standard review (under collateral appellant’s motion to vacate the attack sentence is U.S.C. § reversed, (1976)) of a and the case remanded to criminal conviction was proper- ly applied Court panel District for a new trial on the first III. panel count of the set aside sixteen-year-old indictment. Because retrial convic- suggests Properly, 19. Footnote 8 in Hankerson oner. the Court was concerned holding retroactivity unduly comity Court’s will about not issues of are federalism that present Second, burden the state courts since most defendants not instant case. under objected Procedure, will trial, have instructions thе Federal of Criminal fail- Rules precluding raising only thus object them from ure to at trial appeal corpus proceed- issue on changes “plain or in habeas of review er- standard ings. However, supra. statement this footnote ror.” See As have held in note is not opinion, inconsistent with the decision in in this First, case. involved Hankerson an amounted to error. corpus pris- from a denial of habeas to a state first- premeditated, by and Frady penalty, deliberate the death later set aside tion for I, which was af Frady supra. prosecu- murder-a conviction in a 4-3 vote to proved Frady and Gordon years ago on direct tion’s evidence firmed fifteen killers; banc, theory, F.2d 84 the defense sitting en were contract this court banc) (D.C.Cir. 1965) (en (one judge any responsibility dissenti or in- disclaimed The defense made no claim of volvement. I), (Frady and for which certiorari ng)1 but, culpability, or Court, self-defense reduced by was denied rather, that man was in theorized a third L.Ed.2d 160 and, the real murderer the defendant fact con-' finality of criminal We submit testify, waiving any thus did not himself is such justice been done victions where any give support to whatsoev- opportunity judges must a social interest that all basic now, er, to then or a defense based scrupulously responsibly and observe culpability. Appellee See Brief for reduced standards of distinction between substantial I, of Nos. (Frady America direct and collateral review of criminal con- 10-13; 18,357 18,358) Transcript Trial & We believe it manifest that a victions. at 793-99. review attack court should not on collateral аfter Frady’s Fourteen conviction aspect isolation one of a criminal in challenged was affirmed he an instruction (for jury a which an and overturn verdict by He judge. delivered jury en banc there to be appellate court found predicated part the asserted error in evidence). A supporting sufficient court charge where instructed [jury] charge part “view the itself as must presumes” law “infers or the “existence trial,” Park, of the whole United States culpable homi- of the malice essential 658, 674, 1903, 1912, 44 weapon deadly] cide” from the “use [a whether L.Ed.2d mitigating explanatory the absence of or was served or disserved. (Trial Transcript circumstances.” Frady unpleasant: are On The facts also, jury The trial court instructed the was unmer- 1963 the victim Bennett March course, the meanings premeditation as to in his home. cifully assaulted and murdered deliberation, these and instructed that and had been caved in several “His head a convic- prerequisite two elements mix- a and a blows from blunt instrument first-degree and must tion for murder coming ture of blood and brains beyond jury any reasonable found eyes victim’s wounds. ... One of the find- doubt. The handed in a verdict knocked from its socket and had been and other ing premeditation deliberation-in his cheek the officers ar- lying on when words, the “mal- beyond went far I, supra, 348 F.2d at rived.” guilty find a of a ice” essential to defendant battering, mayhem, murder need- This any degree actually found minutes, during neigh- a ten which time ed Frady guilty first-degree premeditated in time police. They arrived bor summoned en banc and deliberate murder. This court run Frady and Gordon to see codefendant mur- first-degree verdict upheld waiting car. house and from the into der, holding legally sufficient evidence Gordon, blood, with Frady and covered degree. murder in that to find shortly were arrested thereafter. claims, Frady III Frady now before is, panel, was denied amplify- other On trial evidence-and ver- culpability to reach a motive, chance reduced prepara- as to ing plan, details dict, words, finding of man- in other that a sufficiently convincing for the tion-was precluded. slaughter in lieu of murder was on the to return verdict of note, (At panel greatest charged-first-degree, pre- We as did III offense meditated, first-degree deliberate murder-and to earn elements of 508), Miller, Fahy, affirming Judge Judges the first de- 1. Chief Bazelon and McGowan сoncurred Danaher, Bastían, Only Burger, gree Wright Washington, Judge conviction. dissented. 516 intent, in the Frady include ‍‌‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌​​‌‌‌​​‌​​‍and end. III was appeal;

murder not an it premeditation; the elements of second-de a purpose was collateral review whose is to premedi include malice but no gree murder against ensure a miscarriage fundamental tation; manslaughter encompasses all while and, therefore, justice should have fo- killings other unlawful done without malice. guilt cused on all evidence of and the con- segregate “malice” does first- and So duct of the trial as a whole before overturn- second-degree categories from the conviction, ing Wainwright see Sykes, v. category manslaughter. “Malice” does 72, 88-91, 2497, 2507-2508, 433 97 U.S. S.Ct. not, however, distinguish between first- (1977); Cupp Naughten, 53 L.Ed.2d 594 v. second-degree and murder-the 94 U.S. S.Ct. 38 L.Ed.2d 368 murder, first-degrеe reached verdict The Court in Henderson finding premeditation and intent. A ver Kibbe, 145, 154, v. 431 U.S. 97 S.Ct. inconceivable, dict of is espe 52 L.Ed.2d 203 laid down the cially theory turning when no defense on different and enhanced standard of error self-defense, culpability, reduced or extenu required proved: to be ating circumstances was adduced as limit demonstrating The burden of that an ing responsibility of the defendants. prejudicial erroneous instruction was so (Green II), v. See United States Green support that it will a collateral attack (D.C.Cir.1970), validity constitutional of a state L.Ed.2d judgment Large, court’s Sunal [see (1971) (“it is inconceivable that 174, 178, 1588, 1590, 91 L.Ed. guilty of that found the deliber (1947) (collateral attack will not premeditated ate and murder would have convictions)] appeal serve as for federal is ”). to find mаlice.... failed greater showing even required than outlines, Frady opinion As the III appeal. to establish error on direct adjudged “malice” instruction was errone question proceed in such a collateral e., (i. subsequent post-Frady) ous in deci by ing ailing is “whether the instruction sions of this Circuit. The contention we itself so infected the entire trial that support position make here in of our resulting process,” conviction violates due grant rehearing imports en banc abso U.S., Cupp Naughten, [94 lutely no claim that instruction S.Ct., 400], merely whether “the not regarding Frady “malice” in should now be erroneous, undesirable, instruction is or current proper deemed the standard. ” condemned,’ id., ‘universally even at 146 only (e. g., We note that the cases S.Ct., at 400]. [94 (D.C.Cir. States v. 433 F.2d 451 Frady III found Regrettably, panel 1970); (Green I), Green v. United States necessary proof to mischaracterize the (D.C.Cir.1968)), holding 405 F.2d 1368 to sustain “equivocal” the record as order instruction to be invalid were themselves all extraordinary “Equivocal” result. on direct verdicts and this court en way not the the first court and upon years collateral pressed attacks I) Miller, (Frady Judge banc saw it. with after trial. Bastían, Danaher, joined Judges whom Frady an represented at I, writing stated: Burger, Counsel, attorney. in derogation of Fed.R. set the verdict The court cannot aside Crim.P. never raised the issue of errone was insuf- unless the evidence jury charge ous appeal. trial or on direct prejudicial ficient to sustain it or unless miscarriage justice prejudice No or during progress error occurred apparent defendant under these cir said, it trial. From what has been cumstances, jury finding as viewed amply sup- apparent the evidence first-degree murder and this court affirm verdict; ported preju- there is no ing that verdict. III the errone Dis- dicial error in the record. The able charge ous was considered in isolation from the trial as a the trial in exem- Judge whole and from trict conducted first-degree premeditated and (Tri- in a murder fashion, charged the and plary Transcript al beyond clearly criticism. The verdict which was manner jury’s defense and there appellants Frady had no real reflected the belief that en- why rob, appeal intending shown on the house is no real reason tered not to but to e., [j. pay penalty kill, e., they should not i. there was malice aplenty. their atroсious capital punishment] for There was malice and evidence so over- provides which the law and whelming originally justify crime as imposing jury imposed. penalty. light the death of the evidence it is inconceivable that the trial could have added). (emphasis On this 348 F.2d at 111 fatally phrases been infected two short point suggest panel charge. in the court’s (Frady III) by our en banc later is bound redetermine on this decision and not free Using the standard of direct en attack what was settled banc collateral review; ignoring stead of collateral the en The evidence which this appeal. on direct banc decision of this court on direct appeal; sitting en banc found sufficient court mischaracterizing evidence this court had first-degree murder support a verdict of clear, sufficient; convincing found to be “equiv- as simply fairly cannot be described acquittal misconstruing jury’s on the McGowan, I, Judge ocal.” count; felony misinterpreting murder the view that the convictions of “share[d] misapplying recent cases Court on appellants should be affirmed.” instructions, error, retroactivity approve 91. Whereas he could accorded; panel to be court of our was, penalty, Judge McGowan death managed to free at contract last brutal said, “not because I believe there were er- originally thought worthy killer (emphasis rors in the instructions....” Id. penalty. death The rest of the court should added). place. awake to what has taken the rec- One other mischaracterization of

ord, important panel’s line of reason- ing, opinion must be refuted. The asserts: malice overwhelm-

“Were the evidence of ing, might the error the instructions] [in

seem harmless. But here evidence equivocal. malice was Based on the verdict jury obviously concluded after of America UNITED STATES parcel of robbery part that the was not omitted],” killing citing in [footnotes FOSKEY, Appellant. V. Roosevelt Fra- support jury acquitted of this that the At 511. dy felony murder. No. 79-2117. opinion panel Nowhere in the does the Appeals, Court of past

mention that had driven District of Columbia Circuit. day, times that separate victim’s house two co-murderer, Gordon, Frady’s Argued May nor up entering picked pair gloves before Aug. Decided house, “[significantly, the mur- so that weapon fingerprints.” der bore no And, anyone n. famil-

at 101 and 103. might guess, iar with trial instructions ‍‌‌‌‌​​‌​​​‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌​​‌‌‌​​‌​​‍jury’s felony failure to murder convict panel as the

was not lack of implies, properly but because the trial it could not find instructed the felony defendants of both

Case Details

Case Name: United States v. Joseph C. Frady

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 22, 1980

Citation: 636 F.2d 506

Docket Number: 79-2356

Court Abbreviation: D.C. Cir.