United States v. Patrick J. Logan, Michael Graner. Appeal of Michael Graner
717 F.2d 84
3rd Cir.
1983
Check Treatment

*2 fendant, both of whom worked as assessors Johnson, J. Alan Paul Atty., U.S. J. for the of Property Board Assessments in Brysh, Atty. (argued), Asst. U.S. Pitts- Allegheny County, Pennsylvania, conspired Pa., burgh, appellee. to reduce a increase in the proposed as ADAMS, Before GARTH and VAN DU sessed value of a as the property known SEN, Judges. Circuit Lounge Hob Nob in return for a payment

to them. OPINION OF THE COURT The Government also called Charles DUSEN, VAN Judge. Senior Circuit Board, Blocksidge, director of the who This appeal judgment organiza- from a of convic- and internal purpose described its tion for under 18 conspiracy property U.S.C. 1951 tion. The Board values all real § challenges the district court’s in- county property pur- refusal to within the tax convenience, struct that a poses. reasonable doubt as For administrative guilt may explained, defendant’s be raised if the the Board divides the Blocksidge sectors, believes one of his character witness- into twelve each of which county es.1 We hold that the district five proper- supervisor responsible has a or six 40,000-45,000 ly give approximately refused to this instruction as stated assessors and that, by the defendant but cir- When an parcels under the of land. assessor revalues Contrary “(a) any way degree to the assertions in footnote 1 of the in ob- Whoever or dissent, argued structs, delays, in his brief to or the this or affects commerce refusing commodity that the district court in “erred movement of article or give commerce, robbery standard or or extortion at- do, charge” tempts conspires and that the district court’s “refusal or so to or commits or constitute])!] physical person such a reversible violence to or threatens property plan purpose error.” Br. at 7. Counsel’s inexact use of the of a or furtherance anything word “reversible” his brief should not fore- to do in violation of this section $10,000 presented close consideration of the issue un- not more than or im- shall be fined Therefore, twenty years, prisoned der the facts in this more or record. than dissenting opinion assertion in the that the de- both.” urged ground prove fendant never for reversal The Government must interference parties interstate commerce and extortion. Stirone v. and that the did not brief this issue on 212, 270, appeal misleading. seems inaccurate and 80 S.Ct. See States v. (1960). See also United also n. 10. L.Ed.2d Culbert, 55 L.Ed.2d U.S. provides 2. This statute during and that the interview usually change to reflect a

a property, met Logan said that he and “change issues a order” he improvement, transferring signs specific purpose and forwards to for the supervisor which his money in the en- share of processing approval. the main office for velope to him.4 Thomas The Government then called Sul- most in- livan, property Logan’s Indisputably, within the Government’s who owned *3 testimony evidence was previ- culpatory district. testified on Sullivan that he had Logan, an Patrick who testified paid Logan ous occasion he had reduce September his the defendant in property telephoned increase in a assessment for him of the building. suggested possibility When similar 1981 to inform Sullivan on the reassessment of Lounge, making money treatment for the Hob Nob located some been un- district, Logan Lounge, the Hob Nob which had within defendant’s Ac- following to make the renovations a fire. agreed necessary arrange- dergoing Sullivan, however, he and the cording Logan, ments. never dealt defendant with, agreed talked to or met the defendant and at to reduce the increase in assessed $12,000. $5,000., trial could not him. en- value from which netted identify Sullivan’s knowledge alleged savings property tire of the defendant’s to the owner of $700.00. in the scheme claimed that he received participation Logan emanated from $400.00 Logan. the defendant gave this amount and that he on October 21. $150.00 agents

Four FBI who had participated cross-examination, investigation Logan which admitted culminated On indictment testi similar kickbacks against taking defendant also that he had been fied for the to this Agents approximately years prior Government. Kraus for ten that he had explained they participated and Smith had incident. He further admitted agents a surveillance of a between Lo to FBI when he told them that meeting lied 21, 1981.3 gan taking and the defendant on he never heard of assessors October had it Agents Powers and Wolf stated had kickbacks and that he did not believe interviewed the an to do so.5 In addi- April possible defendant on for assessor Agent $150? Kraus followed the defendant from the “Q. airport to the rendezvous and then back “A. Yes. airport. Agent Logan you Smith followed And do? what did “Q. embarrassed, from Sullivan’s office. “A. I was sort of but I didn’t know what to do. Defendant, disputing this characterization Why you were embarrassed? “Q. remarks, his stated: anything $150. deserve “A. I didn’t do [Logan] just you money? “A. said he wanted to kept But “Q. again, please me Yes, see there would I meet him retrospect I have “A. sir. In Hoagie. at 9:30 at Mr. back, given I didn’t. it but you? Did prior open- you “Q. have idea Did “Q. Yes, “A. sir. ing envelope you compen- would be you happened Will describe what you “Q. did at the Hob Nob sated for the work that time? Lounge? lot, Hoagie parking “A. went Mr. No, “A. sir. my car, car, parked got Logan’s into Mr. previous had been no discus- There “Q. talk, you doing, we had some small how are Logan? you and sion between Mr. work, things how is of that nature. No, “A. sir.” Logan envelope Mr. handed me an and said (N.T. 149-51). here, put your pocket. Falce, this in I took the also called Mariana The Government my envelope, put pocket, it in talked for a Lounge, the Hob Nob whose testimo- owner of so, with, minute or and I left. solely cooperation ny to her but related you in, Did know what was in the en- investigation. participation “Q. velope at that time? No, part plea agreement, the Govern “A. sir. 5. As of the against subsequently him another indictment Did determine what ment dismissed “Q. envelope? charged had numerous other was in the him with got Logan stated dur “A. When I back to West Mifflin later violations of the Hobbs Act. ing opened up on I it cross examination: $150. found tion, acknowledged that he had been which later discovered con- Logan tained $150.00. Board in of 1980 reprimanded by May neg- “poor judgment exercise The defendant’s version of transac- of information ligence” in the submission Lounge relating tion to the Hob Nob direct- reductions and recommendations pit- thus testimony, ly Logan’s contradicted property assessments. ting credibility squarely the defendant’s his own against Logan’s. To buttress credi- whose sum, testimony witness called seven character bility, al- linked the defendant critically witnesses who testified leged Logan, scheme was whose credibil- community hon- hinged. ity the entire Government esty truthfulness.8 consisted of defense own and seven character witness- II. Logan es.6 The defendant testified that a unique evidence is Character Lounge asked to assess the Hob Nob him *4 kind of circumstantial evidence. admissible a for a and low value as a “favor” friend usually Although the accused’s character discuss a pecuniary did not issue, witnesses are lay the ultimate in exchange. ward for the defendant On based entire permitted express opinions, September 24, the defendant and his the defendant has a ly hearsay, premises and supervisor inspected community for truthful reputation computed the assess- thereafter defendant not, during prosecution may ness. The its another comparing ment it to bar in case-in-chief, of the de introduce called vicinity.7 Logan arranged Later and predis bad or criminal fendant’s lot, a them at a meeting parking However, between position. defendant himself issue, where him an elect his character Logan envelope, place handed way: restricted to he and the defendant len (N.T. 86-88). Hob The defendant The defendant also ed you which the were aware of mony against I think was the 11th. I think. you sentencing counts of violation Graner ments for this after assessment? Fyock, “A. “Q. “Q. “A. “Q. “Q. “A. “A. Nob guilty? weren’t gave you gave you pleaded [*] What How And Yes, It Yes, I So on the 20th Lounge. did know all don’t whose was, Mr. government recounting with sure how much sir. [*] sir. long today, effect do Mr. Graner the details of the Mr. Graner I Graner know.” described think, respect fixing of the assessment? has [*] of the Hobbs called his approximately guilty physically inspected the it been about the I think it $300, what agreed you [*] will $200 believe the district court you gave transpired and on the 21st calculations since told the supervisor, exchange have on [*] change and that Act, pre-arrange- dismiss guilty plea? you plead- your ten the 11th. you [*] him, agents when testi- your days four Mr. say Al- 8. These witnesses stated fine sullied standing” “honorable (N.T. worked amake proximately putting pre-conceived building crease ing? It sixty-four, assessment ures over there. $5000 square a total increase of 550. I made I raised So 550 and 4450 comes “Q. “A. “Q. “A. “Q. “A. “Q. “A. Yes.” should have been gentleman 143^44). Melting increase. Was foot, And what was Was that Now, Well, total of back from an error beyond my building you amount comes to $5 “beyond reproach” Pot to be land from 450 I made it sounds work notion that made a per have been [for] sixty-one. wanted Melting [the strictly an error? question,” by bringing 4450 over transposed the that. very square in for book it was. I wanted to $6100 honesty” other added to $6000 or comparison the amount that defendant was like trustworthy,” Pot assessed approximately $6100. foot? you put comparison to a thousand for bar], “indisputabl[y] when approximately you (N.T. 181-90). on the $6,100. wanted the 1650 which was put on wrong fig- had some there, of the you just an “un build- “out here. with $5 ap- in- opinion testimony and the which he intro- character evidence. In United States duces into the trial constitutes substantive Frischling, which, under certain circumstanc- following charge: “ es, a reasonable can raise doubt as to his character, ‘Good when considered it does not relate to the connection with the other evidence in the of which specific criminal act he is accused. case, may generate a reasonable doubt sufficient to justify you acquitting the By introducing evidence of his good char- ” defendant.’ acter, the open the en- “throw[s] subject” and, tire of his character conse- judge, The trial declining to honor this re- quently, prosecutor allows the penetrate quest, charged the jury that “ previously proscribed preserve, produce ‘. according stipulation .. in this evidence, contradictory to cross-examine case, the character of the defendant has the defendant’s character witnesses and to put been into evidence and the Court probe the extent and source of their opin- charges you that is to be ions. Michelson v. United just considered other fact in the 469, 479, 213, 220, 69 S.Ct. 93 L.Ed. 168 weighed case and is to be and considered words, In other and to it such makes himself “vulnerable where the law weight as the should deem it entitled ” otherwise him.” shields Id. also See Fed. to under all the evidence in the case.’ 404, 608(a) 803(21). R.Evid. This court reversed and remanded with unique

Given the nature of charac instructions for a new trial. Although evidence,9 ter the importance of appropriate directed the to consider *5 provide jurors instructions to evidence, with adequate guidance for consideration testimony of this failed, “. .. he although specifically re- cannot be underestimated. In Edgington v. quested so, give any guid- to do them States, 361, 366, 17 72, S.Ct. ance as to what part play that fact could 73, 41 (1896), L.Ed. 467 the Supreme Court in their consideration of the defendant’s ruled jury should be instructed guilt. In this we think he erred. A jury evidence, that character who were not told that the defendant’s

“. .. when considered in reputation good connection with character when con- the other case, evidence in the may gen- light sidered in the of the other evidence erate a reasonable doubt. The circum- might permitted to raise the sort of stances may be such that an established doubt in their minds justify which would reputation for good character, if it acquittal, might well regard evidence of issue, relevant to the would alone create reputation as wholly irrelevant doubt, a reasonable although without specific issue of guilt committed to the other evidence would be convincing.” them and consequently give it no consid- eration whatever. We accordingly can- See also Michelson States, v. United not say that the of judge failure the trial U.S. 69 S.Ct. at 218 (“[t]his privilege the requested instruction did not circumstances, in some may enough substantially prejudice the defendant.” to raise a reasonable guilt doubt of and ... in federal courts a jury in a Id. at 370-71.

should be instructed”). so Klass, One year later in United States This court recognized has of (3d Cir.1948) (in banc), necessity appropriate jury instructions relating to court reviewed a stated: which Supreme 9. The acknowledged discretionary Court has controls in the hands of a wise these rules are strong pull and trial court. To one missha- pen grotesque stone out of the structure archaic, paradoxical compro- “... and full of likely simply upset present more its bal- compensations by mises and which an irra- ance between adverse interests than to estab- advantage by tional to one side is offset poorly lish a rational edifice.” counterprivilege reasoned to the oth- Michelson v. United proved er. 335 U.S. at But somehow it has a workable clumsy system even if when moderated “ The a co-de- conspiracy. produc- of the defendants have ‘Some pled who had reputation guilty provided are known witness- fendant ed what is val- evidence the defendant’s they gave evidence direct es. The he ar- by guilt. must The co-defendant stated that id and be considered evidence pro- ranged provide and to have defendant all of other evidence with stills illegal of several operators of itself be the basis for a reasonable tection weekly payments But it must not be in return $150.00. doubt. considered occasion, he the other On one and the defendant separate apart and from all evidence, for the to raid one arranged nor should evidence reputation stills, and you against equipment with overwhelm- to seize certain alone bear at nor- goods indicative re-sell the confiscated ing guilt. then to price. mal market all of the “It must be considered with ” and with that.’ weighed other evidence participation The denied any (Emphasis original.) per- that he conspiracy asserted as a act of law formed the raid bona fide court, considering these instructions com- He a number of enforcement. called confusing prejudicial, held reputation residents to attest to his munity on character evidence should include veracity. for truth and The defendant the purpose, probative possible status and quested the court to is, the effect of such evidence. That dis- have explained charged trict court should right person “. .. ‘It is the of a the defendant introduced charac- testimony, crime to have all relevant doubt, ter generate reasonable charac- including relating good to his the character consider reputation, ter or considered regard strength evidence without case, if, on such considera- every that, the other weakness of tion, exists of his there reasonable doubt the character evidence raised a reasonable engen- that doubt be guilt, doubt as to repute, merely by his previous dered ” guilty. a verdict of not Id. at should return acquittal.’ he is entitled to an The court 379-80. concluded: refused this “ “A evidence must *6 con- jury may told the that ‘You instead requirements meet the thus set forth and witnesses, what the the character sider who evidence the defendant adduces such is to testimony effect of their weight and ” considered, is it if entitled to have be- be, want to it.’ Id. at 835. give what lieved, with all along the other evidence following reversed with the ob- This court the jury in the case until is convinced of servations: doubt, a no beyond his reasonable guilt obliged is requested, “When so the court convincing the evidence matter how if not in jury consonantly, the to instruct assume, That, is appear to be. we may request, the then in the lan- the form of Edg- the purport the statement in the necessary court. words guage of the The ‘ * * * it, without ington although, germane a instruction impart are convincing.’ the other evidence would be are long they as the trial court’s choice so It follows that all the evi- logically the matter for the In adequate purpose. dence, including the reputation should at jury character evidence the jury beyond convinces the a reasonable nature, the be told of its generally least the the in- doubt of in which it be received manner at an end.” quiry is weight and the and considered Id. at 380. give to jury may it.... jury neglected tell Frischling upon Both and Klass relied “[T]he the charac- Quick, should consider

United ... States the other along which a all of Cir.1942), factually a similar case in ter evidence with that, all of defendant, in the case when jury policeman, a evidence convicted considered, had been if a instructed as to the consideration the evidence ” character.’ given good to be doubt as to the defendant’s reasonable Id. at 834-36 existed, duty (citations omitted). it was their guilt then acquit.... bar, in the case at a Similarly, defendant, municipal convicted the

government employee, conspiracy. provided of his co-defendant analysis, “In final the question of the evidence which connected appellant’s guilt or innocence depended, alleged conspiracy. The defendant de as apparent, upon the word of Sim- participated nied that he had in such mons, a accomplice, self-confessed scheme and asserted that he had calculated against Quick, that of the indicted de- Lounge the assessment Hob Nob fendant. upon also relied properly. The defendant [******] testimony from character witnesses. the district court “It especially instruct that “if the believes appropriate one character witness on behalf of the de jury be adequately instructed with re- fendant[,] acquit is sufficient spect where, to character re properly defendant.” The district court here, against the evidence this state fused include consists entirely of testimony of self-con- ment, which not a correct formulation accomplices.... fessed In Nanfito v. juris of the “standing charge.10 alone” States, Cir., 376, 379, F.2d “standing dictions alone” approving court said that ‘It should be observed that instructs in a case government in which the relies good evidence of the defendant’s chiefly for its prosecution upon the evi- alone create a reasonable doubt wheth * * * dence of admitted accomplices, it is er the proved Government the defend important ant had committed the crime.11 jury be specifically denied, 10. Counsel specifically requested rt. 83 S.Ct. ce (1963) (The character evidence at trial. He stated: 9 L.Ed.2d 766 court did not err failing relating Honor, neglected an instruction “Your I to ask for one request), charge. thought defendant’s alibi in the absence of a I it compare Quick, respect I with United States v. covered. want to ask for with (“A required, just the character witnesses presented F.2d is not who were motion, respect that if the own to char believes one char- request acter witness on acter to that end is the behalf of the defendant that evidence[. A] legally appropriate acquit is sufficient to efficient means for in the defendant.” (N.T. 195). ducing pertinent court.”). responded: instruction The district court “THE COURT: That is denied. proof 11. Mere character does not en- get don’t into details about the evidence or *7 guilty. title a defendant to a verdict of not any particular witness. Quick, supra. United States v. In Cohen v. charge credibility “I them on the of wit- States, 871, (3d Cir.1922), United 282 F. 875 the necessary govern- nesses and what is for the phrased charge the prove ment to in order to convict the defend- good reputation ant. “... of the defendant’s char- evidence, charge they acter, put “I would not that if believe one in fact when is a of the character enough, witnesses should consider with the other facts case, fully charge good because I do them on the and further that for which, weighing credibility of the evidence and when considered in character is a fact witnesses, fully of I think I cover that connection with all the other evidence case, facts, charge, specific charge may, generate but not a like other a reason- ask for. That is denied.” able doubt.” (N.T. 195). compare Baysek, 212 But United States v. F.2d 446, 1954) (3d (The jury The fact that the defendant a char- 448 Cir. should “con instruction, incorrectly acter evidence albeit sider the character evidence with the other worded, distinguishes acquit defend thus this case from situa- evidence in the case and ... evidence, any tions alone or where the defendant failed to ask for ant if the character either evidence, See, such raised a instruction whatsoever. for exam- considered with the other ple, Stirone, (3d guilt”), Kaufmann United States 311 277 reasonable doubt of his v. F.2d

91 Palmeri, Cir.1980), cert. (3d F.2d ad 630 192 Here, when district 1484, denied, 967, 101 67 450 U.S. S.Ct. mention of jury, it omitted dressed the also (1981). Fed.R.Crim.P. See L.Ed.2d 616 how evidence or character 52(b).13 30 kind of Usually considered.12 be ' in the alleged proceedings defect trial failure to Whether district court’s consideration, appeal, on require on character charge matter the district court erred as a whether Quick, Klass by Frischling, required However, no placed of law. 52(b) plain error under Rule de- constitutes By record. exceptions charge on the facts upon the and circumstances. pends this omission failing object specifically States, 626 F.2d 1235 Darland v. United pre the defendant did not Cir.1980), example, for district (5th serve appeal the issue for unless the district evidence court disallowed character error or af plain court’s action constituted requested, related instruction. fused v. United States rights. fected substantial held appeals, reversing, court of States, 776, Cir.1922) (3d liberal v. 282 F. 785 court’s refusal to affirm a too United (“[T]he non-compliance charge justify not defendant was entitled to have does not judge standing reputation, requirements an of the rule for ade- with the alone, itself, regard without charge.”). quate case, circumstances in was evidence or Faudman, 640 See also United States v. F.2d doubt”). sufficient to create reasonable Cir.1981) (presentation (6th 20 appeals The courts of which have considered sufficiently preserved appeal, issue for appropriateness “standing alone” notwithstanding object charge), failure to differing have reached conclusions. Cf. English, compare v. with United States 409 Winter, (1st v. F.2d 1120 United States 663 200, (3d 1969) (objection 201 F.2d Cir. Cir.1981) (instruction that sufficiently appeal, preserved notwith issue may not re of itself create reasonable doubt request therefor). standing failure to submit Cramer, quired); F.2d 210 United States v. 447 denied, 1024, (2d Cir.), cert. 404 92 S.Ct. U.S. objections Although requires Rule 30 680, (1971) (under cir 30 L.Ed.2d 674 certain prior commences voiced time defendants instruction cumstances entitled to deliberation, appeal on Rule 52 allows review may rea that character evidence alone create error United States under standard. Hewitt, doubt); 634 sonable United States v. Gallagher, 576 F.2d 1028 rt. v. Cir.1981) (in (5th ce F.2d 277 some circumstances 713, dismissed, 1040, 62 444 U.S. 100 S.Ct. must be instructed character evidence (1980). may doubt); L.Ed.2d 675 United of itself create reasonable 1950) Donnelly, (7th 179 F.2d 227 Cir. States v. purpose of Rule 30 has the “manifest (error refuse instruction that char to effect necessity avoiding] possible the of a whenever may acter doubt); of itself create reasonable time-consuming by providing the trial new trial States, v. United 394 F.2d 216 Gross opportunity mis with an denied, (8th 1013, Cir.), 397 S.Ct. cert. U.S. 90 jury begins charge” before the takes 1245, (1968) (in 427 circum- 25 L.Ed.2d some Provenzano, United States v. deliberate. jury must be stances instructed that denied, (3d Cir.1964), 379 U.S. cert. F.2d 947, may be raise rea evidence alone sufficient to 440, 85 S.Ct. L.Ed.2d doubt); Smith v. sonable 152, Frady, 456 U.S. See also United States v. 890, denied, (9th Cir.), F.2d 197 cert. 1592, 71 L.Ed.2d 816 102 S.Ct. (1962) (absent spe 9 L.Ed.2d 124 (1982): circumstances, proper cial instruct to refuse to 52(b) a means to afford “Rule intended may character evidence alone suffice miscarriages prompt for the redress doubt); create reasonable United States terms, may By justice. be had to its recourse (10th Cir.1980), McMurray, rev’d appeal from a trial infected the Rule Cir.1981) grounds, (10th on other prose- ‘plain’ judge and with error so (in banc) (in some circumstances must it, countenancing standing were derelict in cutor instructed that character evidence timely doubt, assistance in absent the defendant’s alone create reasonable but *8 necessary upon detecting non- a careful if defendant relies it. The thus reflects Rule evidence); encourage v. Lew balancing character is, United States all trial our to of need (D.C.Cir.1973) (defendant enti 482 F.2d 632 participants and accurate trial to seek a fair may tled instruction that character evidence to against our insistence time the first around reasonable.doubt). generate of itself promptly injustice re- be that obvious dressed.” Quick, 12. v. 128 F.2d at 836 See United States omitted.] [Footnote (“A error in a trial failure to find reversible the character evidence “... where of- .... Proof uniform charac- good affects a trait relevant to the crime fered ter a doubt of knowl- guilty should raise deny to introduction of such evi- charged, edge, prisoner and the would be entitled an appropriate and to refuse dence of that the benefit doubt. Proof charge to the constitutes both plain only this kind sometimes be the affecting error and an error substantial repel mode an innocent man can by which rights.” guilt from the presumption arising at 1287. Previte, Id. In United States v. possession goods. proof It of stolen is not (1st the court conclud- innocence, suffi- although may did ed the trial not commit plain cient to If the guilt. raise a doubt by failing error the jury on char- good the jury had told that his Although acter evidence. defendant character be taken into considera- had submitted two points charge, he by them, tion and was entitled much hardly “could to have emphasized said weight, a doubt of the prison- reasonable trial.” He testimony during called guilt er’s have been raised which might one ” character witness and made “slight acquittal.’ have resulted his point during closing reference” argu- Judge While we agree Garth ments. Id. at 83. ordinarily good practice it is not reverse bar, In the case at defendant a trial court when defendant failed to alerted the district court the issue of object to con- an erroneous we are throughout character evidence the trial and where, here, vinced that made clear to the district court that he requested a instruction wished a charge legal on the effect of char case, which is central a narrow ex- evidence,14 acter his request ception practice justified. to the usual incorrectly worded. chief Govern We emphasize that two factors combine ment witness claimed defendant persuade us here that omission had extorted money property from owner. instruction whatever on character evidence The defendant denied this assertion and first, rises to plain the level of error: attacked Logan’s credibility with specific gave judge by notice to the Logan’s instances of dishonesty. Impor evidence; questing a on character tantly, to shore up his own credibility and second, case entirely the defense turned cast a upon reasonable doubt whether on the credibility because the Government proved his critical evidence came an inculpatory from heavily upon relied reputa alleged accomplice directly who contradict- tion the community for truthfulness. ed testimony. holding the defendant’s Our This resulted almost cer today is to this particular limited combina- tain conclusion Logan that either or the tion of factors. defendant had not told truth on the witness stand. Under these narrow circum We recommend to the district courts stances, the failure to provide any guidance the charge suggested on character evidence the jury on character evidence consti Blackmar, in Devitt & Federal Prac Jury tutes Supreme error. As the Court 1977), tice and Instructions 15.25 ed. § stated Edgington States, v. United provides 366-67, 73, U.S. quoting S.Ct. Ju 516, v. The pitz People, (1864), 34 Ill. 521-22 evi- “Where a defendant has offered general “‘... We dence of hardly imagine good can a where veracity, honesty integ- evidence of a truth and or was a more important rity, citizen, element of defence law-abiding than as a quest This situation far seems different from that or other devices instructions curative Namet United before the Court in “were ever 373 U.S. at S.Ct. at made.” (1962), U.S. L.Ed.2d 278 relied on the dissent. that case no re- *9 charge to be along given on character evidence should consider such is charge requested. evidence in the case. where a correct Our all the other this the surely require cases no less than reputa- that a defendant’s “Evidence Neither, though, the trial court. do cases or veracity, honesty tion truth and for require more than this. law-abiding citizen, or a integrity, discussed; that has been or those not with the is My disagreement majority have traits the defendant’s character extrapolated that it has from various cases may be sufficient to questioned, not been a for which do stand. proposition they good reputation warrant an inference improper that when an majority holds as to those traits of character. on character evidence is charge reputation, of a defendant’s “Evidence denied, made the court has a properly of character inconsistent with those traits constituting duty, penalty plain under in the commission of ordinarily involved error, a proper to formulate deliver give rise to charged may the crime a cases, the nor charge. I do not read indeed doubt, since the jury may reasonable filed appeal,1 require the briefs on this improbable person think that a it result, this and I therefore dissent. respect character in to those traits would commit such crime. Frischling, In United States v. will mind always “The bear in this court held that when upon the never a defendant imposes law so,” a trial “specifically requested do duty ain criminal case the burden or the must judge charge must producing calling any any witnesses with the consider character evidence other evidence.”15 evidence, evidence, and that character like evidence, may generate reasonable III. Id. at 370-71. justifying acquittal. doubt conclusion, the district we hold that We in that case that while the recognized properly pro- refused the defendant’s jury should consider character evidence that, posed stated but the it consider other same manner as would record, the court’s failure to on district cre the nature of such evidence guidance instructions or the will possibility ates the the deem of the character evi- for consideration Thus, spe must it irrelevant. dence er- plain adduced trial constituted cially weight character evi alerted Accordingly, judgment ror. of convic- given in their deliberations. dence tion will be reversed the matter Id. at 371. a new manded for trial. princi Frischling affirmed the This court GARTH, Judge, dissenting: Circuit Klass, in United States ple (3d Cir.1948), holding on majority clearly require convey it evidence must idea extent pre- did not 15. A has been The record clear Graner similar recommended Judges appeal issue of a character evi- the United States Fifth Circuit District serve for Instructions, Indeed, Jury Association, charge. Crimi- Graner’s brief does not Pattern dence Cases, permit plain our nal error would even intimate that court’s failure to instruct of the district review consequence, As on evidence. suggested appellant no 1. The time Graner issue not address this either. Government does failure of the district court majori- Accordingly, ground on which the on issue of character evidence con- ground ty’s decision rests plain majority *10 94 to consider evidence jury proper

that is the trial court to a in give charge correctly with all other infer a the absence of a request though legal from it even enunciates the appropriate principles. reasonable doubt is convincing. Id. at 380. evidence Frischling nor bemay Neither Klass read object not attorney Graner’s did to the a evidence require that character at charge trial. F.R.Crim.P. 30. Fail- See charge in the absence an ade- given be to preserve objections jury ure to the quate majority one. The request for relies will charge prevent not review on appeal for such a on this hold- proposition court’s the charge plain where constituted error. ing Quick, in v. F.2d United States Palmeri, United States v. (3d Cir.1942). Quick, this court noted Cir.1980); Grasso, United States that a charge “need exact (3d Cir.1970); see F.R.Crim.P. 52(b). language request,” of a “is not indeed however, majority, holds it er- “plain required, motion, own charge of his ror” for a court a to fail formulate evidence,” respect to character that “a but charge on character evidence when request to end is the legally appropri- merely a defendant that a suggests charac- ate inducing perti- and efficient means for given. ter (Maj. op. some sort nent by instructions the court.” at 835. Id. 92.) defendant, A under the majori- Thus, Quick’s request for a charge created a holding, need neither formulate a ty’s prop- duty instruct on the nature and request object judge’s er nor failure manner of consideration of character evi- in order obtain appellate weight dence and the it. given Id. The duty view. thus on the placed district charge Quick The requested conformed to formulate a character evidence closely years six principle enunciated air,” when a “in the an charge is is Klass, supra. later in The requested charge requirement, inordinate one that does not read rise to the level of we importance normally is the of a right person charged with [i]t “plain reserve for error.” Error is plain crime all to have relevant in- testimony, review on appeal necessary cluding relating to his good charac- a prevent miscarriage justice. manifest ter or reputation, considered by Palmeri, 201; Grasso, supra, 630 F.2d at case, if, in every on such considera- supra, F.2d at 319. “It is the rare case tion, there exists reasonable doubt of his in which an improper justi- instruction will engen- that doubt be fy reversal of a conviction when no criminal previous dered merely good repute, has objection been made trial court.” he is to an acquittal. entitled Kibbe, 145, 154, Henderson v. 1730, 1736, L.Ed.2d 203 Thus, Id. request for a character evi- Quick dence stated properly the evidence to be Character considered legal import of character evidence. That weighed like all Other evidence. The the judge not charge need “in the exact charge given did treat language request” not, of a does like it other evidence in that did not men- case, context of this mean the judge specifically. (Maj. tion character evidence must a proper charge in the absence of 91-92.) op. was not told that request most, a Quick for one. At stands deserving character evidence was of less proposition a Moreover, than emphasis other evidence. charge that correctly princi- enunciates the there was compelling evidence for convic- ples upon which the consider tion presented Logan. imposes upon duty Were the instruction erroneous —for exam- trial court to on principles. instruct those ple setting out incorrect elements of the —in Klass Frischling then and artic- refined charged, proof necessary offense ulated Thus, convict, these principles. it cannot be it might finding have less trouble said cases impose duty upon these presents, to be this case error. What court to duty an district however, imposed error—if error is—of is an correctly It enunci- magnitude. goes of far lesser formulate order where, in legal principles must be ex- degree appropriate to which the ates *11 hypothetical instance, its the has re- from pressly dissuaded the first charge. certain evidence More- tendency deemphasize quested wholly improper to over, required its deliberations. such action we have never the district court when from I the failure to in cannot conclude that request, initial incorrect by has stood amounts to struct on character evidence to a correct in- failing thereafter frame Indeed, the authorities dis plain error. all object to when the failing struction and cussing issue hold otherwise.2 See very this the jury to instruct properly declines Clavey, F.2d generally United States v. 565 the incor- in accordance with Cir.1977)(unobjected-to fail (7th request. rect evidence not ure to instruct on character denied, 954, 99 reviewable), cert. Second, limiting I fear the second v. (1978); Swingle S.Ct. 58 L.Ed.2d standard, provides in the majority’s factor (10th States, Cir. United ever, is the rarely, limit at all: defend- no 1968) (failure character evi give proper to not at issue in a criminal credibility ant’s error”). not “fundamental dence plea guilty” trial. The mere “not which cause, in a criminal ensures triggers I in circumstances do not believe issues abound. credibility we should erode presented such as are here ought not to re- the error rule. We Thus, majority opin I the as understand at the quire judges, peril district court ion, the first time will now be this court for having convictions otherwise-unassailable an incorrect char holding aside, to anticipate set to formulate was the requested by acter evidence Indeed, I for counsel. instructions charge was corrective defendant and no itself is fearful of suspect majority that the the was original when substituted rule for diluting “plain error” it seeks refused, the court never district properly narrow holding exception restrict its “a theless, required peril, its now Maj. at 92. op. practice.” to the usual does do If it not its own instruction. frame on the basis of so, will “plain to limit we review majority endeavors this is a re suggest error.” “plain error” to instances where the defend- those “plain from traditional departure (1) gives judge by “notice” re- markable ant jurisprudence, and constitutes charge on character error” questing an incorrect con “extravagant protection” type (2) very where the turns Namet First, Supreme Court. credibility. I have demned issues Id. 179, 190, 83 dissent, States, 373 U.S. nei- attempted out in United I cannot 1151, 1156, 10 (1962).3 ever L.Ed.2d ther this nor other court has (5th affected a evidence offered F.2d the character where 2. Darland v. charged. opinion, maj. majority crime trait relevant cited Darland, op. p. 91-92, contrary. is not to the authority situation is thus not Darland produced the defend- character presented where here: charac- one such ant was in the form an affidavit admitted, properly ter evidence is object. not After the affidavit Government did incorrect, objection is no instruction court, jury, the district had been read of the district court made to the failure upon learning that the himself would charge. testify, sponte the affidavit sua struck appear majority’s disregard “notice” rule 3. The instructed that a conclusion defend- Having to the anomalous no evidence in lead evidence. charge, record, submit a or who not even ant who does district court then refused to requests put could to submit refuses instruction on character he desired instruc- requested by on “notice” that the court Fifth Circuit defendant. different areas —character reversed, predicated in a number of whol- tions evidence, but its reversal witness, testimony, expert interested striking ly upon char- the relevant the error witnesses, witnesses, cause, ac- particularly number of absence acter evidence without mandates, of this agree that the law Circuit “plain an extension of rule. error” contrary to the

Accordingly, majority’s

conclusion, affirm the I would district court

and I dissent from the respectfully majori-

ty’s holding. *12 CHRISTIDIS,

Constantin Ind. on Behalf

of Himself and All Others

Similarly Situated

FIRST PENNSYLVANIA MORTGAGE

TRUST; Advisers, Associated Inc.: Pennsylvania

First Corporation; First Bank,

Pennsylvania N.A.; Peat, Mar

wick, Co.; Bunting; Mitchell & John R. Ralph Erwin, Jr.; Anthony Felix, W. G.

Jr.; Ehlinger; Philip Evans, C. Samuel

III; Ahearn; Daniel S. Edmund N. Ba

con; Baker, Richard W. Jr. and M. Todd

Cooke.

Appeal of Constantin CHRISTIDIS.

No. 82-1824. Court of Appeals, States Console, Stephen G. Lewis (ar- Kates Third Circuit. gued), Kates, Livesey Mazzocone, P.C., & Pa., Philadelphia, appellant. Argued Aug. 1, 1983. (argued), Robert Ryan S. Lawrence P. Sept. Decided Byrnes, Drinker, Reath, Biddle & Philadel- Rehearing and Rehearing In Banc phia, Pa., Evans, III, for appellees, Samuel Oct. Denied Ahearn, Bacon, Daniel S. Edmund N. Rich- Baker, ard W. Jr. and M. Todd Cooke. Swain, Joseph W. Jr. (argued), Philadel- phia, Pa., Earle, III, Victor M. Anthony J. Costantini, City, New York for appellee, Peat, Co.; Marwick, Mitchell & John E. Caruso, Platt, Mary F. Montgomery, McCracken, Rhoads, Walker & Philadelphia, Pa., of counsel.

complice testimony, statements, inconsistent under error even in the absence of an witnesses, credibility of etc. —then objection leave it to given, if the court’s it is not instruction, the trial frame ultimately given. or to its content it is then, further, have the reviewed stituted (maj. error. As notes ground 91), is a never op. p. “By reverses district failing object specifi- urged by par- and never briefed Graner cally the defend- omission and, ties, independent insofar as our research preserve appeal ant the issue unless did not holding that has never been reveals is a court’s action constituted er- district by any court. reached rights.” ror or affected substantial