James Cooper v. United States of America, Percy Taylor v. United States of America, Frederick Childs v. United States , 357 F.2d 274 ( 1966 )

BURGER, Circuit Judge

(concurring in Nos. 19347 and 19348 and dissenting in No. 19340):

I concur in the affirmance of the conviction of Taylor and Childs and I would also affirm the conviction of Cooper. Judge Edgerton would reverse the jury as to Cooper and set him free on the ground that no reasonable mind could find him guilty on this record; Judge Bazelon would reverse and order a new trial because of his view that the charge was inadequate on aiding and abetting. I find no error in submitting Cooper’s case to the jury and I see none, and certainly no “plain error” under Rule 52(b), Fed.R.Crim.P., in the Court’s charge to the jury.

A statement of the facts is essential to my position. At the close of the government’s case, the evidence against Cooper was substantially as strong as that against the other two defendants, except for the one fact that none of the loot was found on him. Hill, the victim of the robbery, testified that while walking back to his car after making a purchase at a liquor store he had been accosted and detained on the street by Taylor, who demanded twenty-five cents of him. Childs, whom Hill had noticed watching him while he was in the liquor store, walked past Taylor and Hill and sat on a low wall, and Cooper then came up and offered two cents to Taylor, who had reduced his demands on Hill to a nickel. Hill testified that it seemed to him that Taylor and Cooper knew each other. After Cooper made his offer of two cents, Taylor told Hill, “you can go now.” Hill had taken about six steps on the way to his car when he was hit from behind, knocked unconscious, and robbed. Hill had had a good look at Childs in the liquor store and at Taylor while being detained on the street. He also testified that he “caught a good glimpse” of Cooper when Cooper offered two cents to Taylor.

The government also introduced testimony of one of the police officers who responded to the scene within minutes of the robbery and who after talking with Hill drove off in search of men who would match Hill’s description of the three he believed had attacked him. The police saw three men, whose appearance conformed to Hill’s descriptions of Taylor, Childs, and Cooper, walking down the street. One of the officers left the car and continued his surveillance while the other went to transport Hill to the scene. The waiting officer saw Taylor enter a house while Cooper and Childs remained outside. All this occurred minutes after the robbery. The evidence before the jury also showed that while in the house Taylor gave some money to his sister and some money and a wallet to his nephew, that both Cooper and Childs later came into the house, and that Cooper told Taylor “to come on because they had to go.” Taylor’s sister testified to Cooper’s statement.

The three men were thereafter arrested, and Hill at once identified them as the three he believed had attacked him. The police found on Taylor a bottle of liquor of the same type, quantity, and brand that had been taken from Hill while Hill was unconscious. Childs tried to hide some money as he was being searched by the police; this amount, together with what Taylor had given his nephew and his sister and with what was in the wallet, which Taylor’s nephew gave to the police and which Hill identified as being his, added up to the precise amount taken from Hill.

Having been hit from behind, Hill of course did not see the person or persons who struck the blow. But all the circumstances are such as to warrant reasonable men in believing that Appellants had participated in the attack and robbery. One of them had stopped Hill and detained him while the other two came up; he was hit from behind after turning away from them and walking six steps; the testimony of Hill was that these three men were the only persons present in the immediate vicinity.

It was not necessary to find stolen goods on any of the Appellants in order to allow the jury to decide that the Appellants participated in the robbery. If no stolen goods had ever been recovered and if there had been no testimony about the disposition of them, there could well have been enough evidence to go to the jury on Hill’s testimony alone. Thus the fact that nothing was found on Cooper is significant only because stolen goods were found on the other two. It does not weaken the evidence placing Cooper at the scene of the robbery, even if it could mean, as Judges Edgerton and Bazelon suggest, that although present Cooper did not participate in the crime. However, that was for the 12 jurors, not for appellate judges to decide.

The government need not prove some “contractual” arrangement of robbers for division of the loot or prove that it was shared. It is suggested that Cooper if present was merely an innocent bystander, but reasonable jurors could reasonably conclude that his being in the company of the two on whom loot was found immediately before and after the attack and his entry into the house to tell Taylor “to come” was ample evidence to show his part in the crime. As I see it the trial judge was plainly correct in permitting the jury to draw the inference, if it chose, that Cooper’s conduct was an indication of his involvement.

By itself Cooper’s statement to Taylor that it was time to leave the house does not, of course, make him a participant. However, if the jury chose to believe Hill’s testimony, as it could, then Cooper’s urging Taylor to depart would support a finding of participation. At the least, reasonable jurors would be warranted in finding Cooper was an aider and abettor, for which mere presence is enough provided it is intended to and does aid the primary actors. United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962) (dictum).

The evidence offered by Cooper was not enough to negate the Government’s evidence and certainly not enough to require a directed verdict of acquittal. This evidence was directed not at making a claim that, while present, he did not participate but at proving, by an alibi, that he was not at the scene of the crime at any time. His alibi witnesses, however, testified that Cooper walked them home and left them a few minutes before 9, which was in sharp conflict with the officer’s testimony that Cooper had been booked at the precinct station by 8:45. These alibi witnesses also strengthened the Government’s case by testimony that Cooper, Taylor, and Childs were indeed friends.

Judge Bazelon’s complaint is that, considered as a whole, the charge was insufficient with respect to aiding and abetting. He does not dispute the accuracy of the aiding and abetting charge; rather he asserts it was plain error to .give an identification instruction in the manner it was given. A careful examination of the charge convinces me that it was not only accurate to the point of being a model but that it was even favorable to Cooper.

Appellants based their defense on challenging Hill’s identification of them as the attackers, thus not challenging the Government’s case on any of the grounds now relied on for reversal.¹ Only Taylor’s lawyers showed any interest in there being an aiding and abetting instruction; Cooper’s counsel was interested in obtaining charges on lesser included offense, identification, and alibi, realizing, as he later stated candidly to the trial court, that “my case depends on identification.”

The Trial Judge, however, gave an aiding and abetting instruction that was applicable to all three defendants; this was perhaps done in an abundance of caution. The evidence did not require this charge since the jury would have been warranted in inferring from the evidence that all three took direct roles in the robbery; aiding and abetting was not a necessary element of guilt. Nor was there evidence directed at or even indicating presence but noncomplicity; the absence of aiding and abetting was not, therefore, a theory of defense raised by the evidence and so required to be explained to the jury. See Womack v. United States, 119 U.S.App.D.C. 40, 336 F.2d 959 (1964).

Judges Edgerton and Bazelon agree with me that the charge on aiding and abetting as given was correct. To assess the impact of this charge in light of Judge Bazelon’s claims, it is necessary to see it in full:

* * * it is the law that if two or more persons act jointly or, as the law says, in concert, each performing a part or taking some step, and all the parts or steps taken together result in the commission of a crime, then all are equally guilty of the crime. So, too, if one person aids or abets, that is, assists, or helps another person in the commission of a crime, the person so aiding or abetting is guilty of the completed offense as though he had himself committed it entirely.

Now, of course, in order that a person may be found guilty on the theory that he aided and abetted another in the commission of a crime or that he acted jointly with another, he must have participated to some extent in the commission of the crime, with the intention of so participating and with the knowledge of the crime that was about to be committed and in which he was participating. The degree of participation may be ever so small, but there must be some active participation. For example, it is not sufficient to constitute aiding and abetting a crime merely that a defendant may have stood and watched the crime committed or that he knew that it was being committed and did nothing about it. He must have contributed to some extent and in some way to the commission of the crime in order to be guilty on the theory that he aided and abetted it. [Emphasis supplied.]

It is hardly possible to state more clearly that mere presence at the scene of the crime could not by itself support a finding of guilty. In fact, in saying “there must be some active participation” to hold Cooper, the Trial Judge overstated the Government’s burden and thus aided Cooper. That my colleagues admit the correctness of this charge renders it, I suggest, well nigh perfect.

After explaining the elements of robbery, the Trial Judg-e summarized the evidence and explained to the jury that “you have a right, if you are convinced by this identification, to find the defendants guilty, without any corroborating evidence,” [emphasis supplied] but this cannot rationally be read independently of the detailed and meticulous instruction on “participation” just quoted. The Judge went on to explain that there was evidence corroborating the identification of Taylor and Childs. After stating explicitly that there was no corroborating evidence of identification as to Cooper, he told the jury it had

“ * * * a right to find Cooper guilty. On the other hand you may ask yourself whether the identification is sufficiently convincing in view of the fact that Hill had seen Cooper but for a fleeting moment that evening and that there may be a possibility of error in the identification.”

Cooper could not have asked for more and indeed did not. In the first place there was ample corroborating evidence of the identification of Cooper. The fact that two of the three men Hill identified as the assailants had the stolen property in hand when arrested strengthens identification of Cooper as the third man. Second, the Trial Judge was singling Cooper out for special cautionary instructions on identification — which Cooper’s counsel said was “his case”— despite the fact that the charge had already carefully conditioned conviction of the three defendants on acceptance of the identification.

Judge Bazelon, however, concludes that the admittedly accurate charge on aiding and abetting and the favorable charge on identification when considered together somehow undergo a mysterious transformation and emerge from the crucible as “plainly wrong.” Two impeccable instructions add up to one wrong— and plain wrong to boot. Somehow the combination did not strike Cooper’s counsel as error. It is Judge Bazelon’s position by gyrations of rationalizing which utterly elude me, that the charge on identification operated so as to vitiate the aiding and abetting instruction and thus erroneously rendered identity the sole issue for the jury.

Even if the jury thought that identification was the only issue, I do not think this fact would represent error, since, as I have said, there was sufficient evidence to convict Cooper as a direct participant. I cannot accept, moreover, that the identification instruction had the effect ascribed to it by Judge Baze-lon.

In charging a jury a Trial Judge cannot say two things at the same time. Since an accused is permitted inconsistent defenses, a charge must cover each and thus be, superficially, inconsistent. A trial judge cannot be required to state the applicable rules of law in a snowballing fashion, so that each succeeding proposition including the last contains all previous ones, in the hope that this will preclude the jury from interpreting the last one as overriding earlier ones. It is physically and logically impossible to instruct the jury on all the rules of law at the same time. Indeed it defies common human experience and common sense to ask for it, as the majority now seem to be doing.

The judge can direct the attention of the jury to only one element of the case at a time; but this does not mean that the effect of a charge is to be judged by isolating one or more parts out of context. The aiding and abetting charge may indeed seem like “boilerplate” to appellate judges and make a less deep impression on them because of familiarity than charges which are made to relate specifically to the particular case being tried and so have an aspect of novelty which catches our eye. However, in the courtroom a jury hears the entire charge and hears the component instructions in relation to the whole and all parts are equally novel to lay jurors.

The Trial Judge could conceivably have put the aiding and abetting charge closer to the one on identification; but only four pages in the transcript separate the two parts. Is an appellate court to require closer proximity of what on review seems to it the main points in a trial? One of these points was not even argued to the jury. Our present system of defense for indigents almost invariably places a new lawyer in the case on appeal with the result that the central points of defense at trial frequently are not the central points on appeal.

It is especially significant that the trial judge ended the charge with the feature of the case most favorable to Cooper, i. e., the “fleeting” look Hill had of Cooper.

United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962), provides no support for Judge Bazelon’s position. There the initial correct charge on aiding and abetting was held to have been vitiated by later errors on the same subject; it is not a case of claiming that two correct charges on different matters conflicted, as Judge Bazelon contends in the instant case. In Garguilo, furthermore, the jurors were at no time “told in plain words that mere presence and guilty knowledge * * * would not suffice * * *,” id. at 254, as the jury was explicitly told here.

I find no error, then, either in permitting Cooper’s case to go to the jury or in the content of the charge, which was never objected to at trial or challenged by Cooper in this court on the theory relied upon by Judge Bazelon to find plain error.

All crimes are not committed with the built-in convenience of eye witnesses, few are photographed, and a man struck down from behind may indeed have some difficulty stating which of several assailants felled him. It is because-of this that centuries of experience have led the Common Law systems of justice to the wise course of permitting 12 lay jurors, rather than appellate judges, to draw inferences from facts and circumstances in evidence and reconcile conflicts in the evidence.

In this case the majority is exercising fact-finding functions reserved to the jury and, among other things, reversing the District Judge for failing to say precisely what the record shows he did say to the jury. The other ground relied on for reversal represents another manifestation of this Court’s tendency to require not merely a fair trial but a perfect trial. A fair trial is sufficient. Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

1 . Since the Trial Judge instructed fully on the elements of robbery, Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965), holding that the elements of robbery must be spelled out even when tbe defense is directed at identification, is not applicable.