United States v. George F. Vasen , 222 F.2d 3 ( 1955 )

LINDLEY, Circuit Judge.

Defendant was convicted upon nine counts of an indictment charging use of the mails in carrying out a scheme to defraud, by selling fraudulent fractional undivided interest in oil, gas and other mineral rights in violation of Section 77q(a) of the Securities Act, Title 15 U.S.C.A. He was sentenced upon certain counts to five years in the custody of the Attorney-General and ordered placed on probation for a period of five years, following his release from custody, upon others. On appeal he assigns error as follows: (1) he was deprived of a fair trial by certain remarks of the court to the jury; (2) certain evidence was improperly admitted; (3) the court erroneously charged the jury. The record reflects no timely objection in the trial court upon any of these points.

Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., prescribes the time and place for making objections to instructions. In the absence of compliance with this rule, defendants are precluded from reviewing the action of the court. United States v. Kaadt, 7 Cir., 171 F.2d 600; see also United States v. Sutter, 7 Cir., 160 F.2d 754. Other courts have consistently decided likewise. See Felton v. United States, 83 U.S.App.D.C. 277, 170 F.2d 153, certiorari denied 335 U.S. 831, 69 S.Ct. 18, 93 L.Ed. 385; Bartlett v. United States, 10 Cir., 166 F.2d 920. This rule is, in its essence, the same as that of Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A., as to which it has repeatedly been declared that the purpose of requiring objections is to insure that the trial judge may be advised of possible errors upon his part and to give him an opportunity to correct them. For this reason, any objection must be fairly and promptly directed to the trial court in order that errors may be avoided. Stil-well v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714; Hower v. Roberts, 8 Cir., 153 F.2d 726; Williams v. Powers, 6 Cir., 135 F.2d 153. In other words the court must be given opportunity to rectify any inadvertent wrongful charge, statement or ruling. Allen v. Nelson Dodd Produce Co., 10 Cir., 207 F.2d 296; Green v. Reading Co., 3 Cir., 183 F.2d 716. This reasoning applies to every instance of assigned error where the action of which complaint is made is such that, if called to the court’s attention, it might have been corrected. This includes rulings in the course of the trial, comments of the court and instructions to the jury. In all such instances common fairness requires that before it can be successfully contended on appeal that the trial court has erred, that court must have been given an opportunity to rectify any inadvertent comment, ruling or instruction. It follows from the record in this case that defendant, inasmuch as he preserved no timely objection to any action on the part of the trial court of which he now complains, is without right to invoke this court’s jurisdiction to consider the assigned errors, unless they be of that serious character condemned by Rule 52(b), of the Rules of Criminal Procedure, 18 U.S.C.A.

Under Rule 52(b) plain errors “affecting substantial rights may be noticed” although not brought to the attention of the trial court. We remarked in United States v. Raub, 7 Cir., 177 F.2d 312, at page 315: “Such errors must, however, be substantial and capable of resulting in miscarriage of justice to warrant the reversal of a judgment of conviction based on ample evidence. We must not lightly invoke Rule 52(b).” And when issues have, on the whole been left to the jury in substantial compliance with the applicable law, we will not notice an error which the trial judge has not been asked to correct unless substantial rights have been adversely affected; that is to say, only seriously prejudicial error will be noticed, in the absence of objection. United States v. Kirby, 2 Cir., 176 F.2d 101; Himmelfarb v. United States, 9 Cir., 175 F.2d 924, certiorari denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527; United States v. Krulewitch, 2 Cir., 167 F.2d 943, reversed on other grounds in 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; United States v. Williams, 2 Cir., 146 F.2d 651, certiorari denied 324 U.S. 876, 65 S.Ct. 1016, 89 L.Ed. 1428. The error must be such as would result in manifest miscarriage of justice or affect seriously the fairness of judicial proceedings. Smith v. United States, 9 Cir., 173 F.2d 181. See also Benson v. United States. 5 Cir., 112 F.2d 422, cer-tiorari denied 311 U.S. 644, 61 S.Ct. 43, 85 L.Ed. 411. Thus, in United States v. Bazzell, 7 Cir., 187 F.2d 878, we refused, in our discretion, to find that plain error had occurred. See also United States v. Sferas, 7 Cir., 210 F.2d 69, certiorari denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086; Apodaca v. United States, 10 Cir., 188 F.2d 932. And in United States v. Jones, 7 Cir., 204 F.2d 745, at page 749, certiorari denied 346 U.S. 854, 74 S.Ct. 67, 98 L.Ed. 368 we said, citing United States v. Joni-kas, 7 Cir., 187 F.2d 240: “In view of the failure of defendant’s counsel to advance the explicit contention here asserted, but 'consciously failed to save the point’ in the court below, we can not say that the error was obvious. * * * We shall not, in a flagrant case, give cognizance to a complaint first made to us and thus give defendant two bites at the same cherry, by declaring erroneous action of the trial court, the fault of which defendant did not see fit to make the court aware, when he had the opportunity to do so.”

Defendant complains chiefly of comments of the District Judge to the jury after the jurors had been sworn, but before they had received any evidence. Evidently the judge had been dissatisfied with an apparent miscarriage of justice in a previous case, where the jury had ignored the evidence and acquitted a defendant who, the judge undoubtedly thought, was guilty. Rather wide publicity had been given the incident by the press. However, it is apparent from reading the comments that, out of a super-abundance of caution, the judge was advising the jury that, though he had criticized the jury in one case widely publicized in the newspapers, he was not in the habit of doing so. Obviously, he was fearful that the newspaper reports might have inspired in the jurors’ minds the false idea that he was addicted to the practice of criticizing verdicts. What he said was obviously intended to advise them that he did not ordinarily do so and to assure them that they were free to exercise freely their inherent independent functions as jurors. This is obvious from his concluding remark that, in fairness to all defendants, he “wanted” the jury to know that he had no preconceived ideas. He added: “I make that statement because I want this defendant and * * * the Government both to have a fair trial, and I do not want you to have any idea that I participate in or have any notions or am in the habit of criticizing juries about their decisions.”

As we have pointed out, to these comments no objection was made. If there was anything in any part of the comments deemed prejudicial, it was defendant’s duty to object and to call to the judge’s attention what he deemed erroneous in order that the court might rectify any error made. But the first complaint of these comments is made on appeal. Clearly, we are without right to consider or to determine the error assigned, unless we can say as a matter of law that it constituted manifest error with resulting prejudice to the rights of defendant.

It seems obvious that, despite the good intentions of the judge, it was injudicious on his part to comment upon a prior case. But he was inspired by anxiety to assure defendant of a fair trial. Any apparent inadvertent overstepping of the boundaries of the proprieties in a jury trial in the way of indiscreet remarks, we think was, in view of the complete remarks, wholly without legal significance. We cannot see that the defendant was in any wise prejudiced by what was said. The jury was selected on Jan. 5, 1954. The trial began Jan. 18, and continued intermittently until March 2, 1954. At no time did defendant complain. Considering all the circumstances, we are of the opinion that it is beyond our province to declare that prejudicial error intervened.

In this connection we observe that defendant tendered instructions fully defining the functions of the jury as the exclusive triers of the facts, which were given by the court. One was, in pertinent part, as follows: “You are instructed that the jury is the sole judge of the facts in this case * * *. And in anything that the court may say in these instructions, the court has not intended, and he does not now intend to express any opinion upon the facts of this case, on the credibility of the witnesses, or the weight to be given their testimony.” The court also approved and gave defendant’s instruction number 11 which it characterized, in colloquy with counsel, as telling the jury “it is their duty to find the defendant not guilty if they possibly can.” The effect of these and other similar instructions was to advise the jury fully and completely of their duty to ignore the court’s remarks in the course of the trial, except those as to the controlling law, and to point out clearly their exclusive function of determining where the truth lay. Having failed to object to remarks at the time they were made, defendant might, if he felt himself prejudiced, have eliminated that prejudice by asking the judge to give an express exclusionary instruction, and in case of his failure to do so, have preserved the point he now attempts to raise.

It is urged that the court erred in instructing the jury as to the essential element of guilty knowledge of the falsity of the representations made. It exhaustively instructed the jury as to the essentials of proof and the law governing the indictment and the trial. In the course of his charge, however, the judge used these words: “It is not necessary, however, for you to find that the defendant had actual knowledge of the falsity of the representations being made. That part may be inferred from the evidence.” The court had fully explained that before the defendant could be found guilty it was necessary to find, beyond all reasonable doubt, that he had knowledge of the falsity of the representations made. But, as the judge said, guilty knowledge may be inferred where its asserted lack consists of ignorance of facts which ordinary persons under similar circumstances should have known, and the defendant could not be found guilty unless the jury found from the evidence that he must have known of the falsity. Proof of knowledge of falsity of what is said is seldom susceptible of proof by direct testimony. We cannot reach into a man’s mind and pick out any tangible, physical evidence of what has transpired in his mental processes. Of necessity, recourse to proved circumstances alone must supply the answer. Consequently, the jury, considering the circumstances, was called upon to determine whether it appeared, beyond all reasonable doubt, that defendant knew or was bound to know that what he said and did was done knowingly. Such was the full import and impact of the court’s complete charge. Obviously, it was endeavoring to advise the jury that before defendant could be found guilty, the circumstances proved must justify, beyond all reasonable doubt, only an inference that the defendant knew of the untruth of what he said or wrote. Bentel v. United States 2 Cir., 13 F.2d 327. Of course, guilty knowledge must be proved beyond all reasonable doubt, as the court charged, but proof of actual existence of such knowledge is not required; scienter may always be inferred from the proved circumstances, where its asserted lack is based on ignorance of evidentiary facts which any ordinary person under similar circumstances would be bound to know. Stone v. United States, 6 Cir., 113 F.2d 70; Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed per curiam 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390; United States v. Sylvanus, 7 Cir., 192 F.2d 96, certiorari denied 342 U.S. 943, 72 S.Ct. 555, 96 L.Ed. 701. It being apparent that the court correctly instructed the jury in this respect, it cannot be said that plain error intervened or even that, had there been an objection, it would have raised any meritorious ground for review here. Obviously, if defendant thought the instructions were not clear, he had a right and duty to object at the time they were given in the manner provided by the rule in order that the court might have full opportunity to amend the charge if it saw fit to do so.

Defendant asserts error because a Government witness, a lawyer, was permitted on re-direct examination, to testify that, in his opinion, the securities involved came within the Securities Act. Section 77b of that Act defining securities, includes among other things, “fractional undivided interest in oil, gas, or other mineral rights”. The instruments involved were strictly within this limited category; indeed they were of the exact character defined in the quoted words. The court, in essence, instructed the jury as a matter of law that the undivided interests in oil, gas and other mineral rights which defendant was charged with having sold were within the statute. Consequently, the proof of which complaint is made, was wholly superfluous and, if objection had been made, the answer could and probably would have been excluded. But there was no error, for the reason that the witness merely testified to what the court instructed the jury was true as a matter of law. That the securities were within the statute, cannot be questioned. Not only, therefore, was there failure to object, but there was complete absence of plain error which would justify us in invoking Rule 52(b).

We have before us a case where the evidence of guilt was voluminous and convincing. Indeed defendant does not question the sufficiency of the evidence, or its overwhelming character. But, though he has desisted from raising objections to testimony of which he now complains, though he complains of the court’s comments to which he has preserved no objection, and though he attacks the court’s instructions, all of which could have been corrected if the court’s attention had been called to any possible error, at the proper time and place, he now insists that, despite his apparent original thought that none of these matters of which he complains was erroneous, they were plain prejudicial errors. We cannot subscribe to this conclusion.

Defendant asserts broadly that he was deprived of a fair trial, yet nothing in the record supports the premise. True his original counsel had an attack of laryngitis, but the court, with sympathetic appreciation of the situation, continued the cause for defendant’s opening statement and later advised the jurors, on January 26, that associate counsel had been brought in and would participate in the trial as counsel. So, after Jan. 26, until the trial was concluded on March 3, two attorneys appeared for and represented defendant, both of whom, so far as this record discloses, were competent and able. Certainly the record reflects no basis whatever for defendant’s assertions in this respect.

Nor was the judgment defective. Though cumbrously phrased, it is clear that defendant was sentenced to 5 years in the custody of the Attorney-General upon certain named counts, and placed on probation, at the expiration of that sentence, for 5 years on certain other named counts. The sentence conformed to the requirements of Title 18, Sec. 3651, U.S.C. See Weber v. Squier, 9 Cir., 124 F.2d 618, certiorari denied 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209; Palmer v. Sanford, D.C., 57 F.Supp. 104, affirmed 5 Cir., 147 F.2d 549, certiorari denied 325 U.S. 878, 65 S.Ct. 1555, 89 L.Ed. 1995.

The judgment is Affirmed.