United States v. Frank Guglielmini and John Testa , 384 F.2d 602 ( 1967 )

LUMBARD, Chief Judge:

Frank Guglielmini and John Testa appeal their convictions by a jury after trial in the Eastern District of New York in November 1966 on three counts for concealing assets of a bankrupt, and of Guglielmini on an additional count for concealing records, in violation of 18 U.S.C. § 152, for which the district court imposed concurrent five-year prison terms and five years’ probation to follow service of sentence.

The appellants allege that they were denied a fair trial by the conduct of the trial judge and the prosecutor, and they complain of errors in the court’s charge. Our study of the record shows substantial support for their claims. As we find that the cumulative effect of these errors was such as to render it highly doubtful that the appellants enjoyed the fair trial to which they were entitled, we reverse the convictions.

Simply stated, the government’s case was that Frank Guglielmini and John Testa ran the business of the Miracle Supermarket, owned by Frank Guglielmini’s brother, John Guglielmini, for the purpose of defrauding creditors and concealing the assets and books of the business from the receiver in bankruptcy.

The indictment charged that on April 1, 1960, an involuntary petition in bankruptcy was filed against Frank Guglielmini’s brother, John — also known as John Papa and doing business as the Miracle Supermarket in Brooklyn, New York,— who thereafter on June 6, 1960 filed a voluntary petition in bankruptcy under Chapter XI of the Bankruptcy Act and was adjudicated a bankrupt on September 28, 1960. It was charged that commencing about February 1, 1960, Frank Guglielmini and John Testa were engaged in the management of the business, but that only a part of the assets were made available to the receiver, although the bankrupt had substantial property, largely foodstuffs and cash receipts from sales, and that Frank Guglielmini and John Testa knowingly and fraudulently concealed from the receiver property and cash receipts of approximately $39,000.

A second count charged knowing and fraudulent concealment of the same property from the creditors of the bankrupt, and a third count charged that in contemplation of a bankruptcy proceeding, and with intent to defeat the bankruptcy laws, the defendants knowingly and fraudulently transferred and concealed the same property. A fourth count charged that the two defendants, after the commencement of the bankruptcy proceeding, knowingly and fraudulently concealed the books, records, and documents of the bankrupt from the receiver.

The proof amply supported the verdicts of guilty. In summary, the government showed that the defendants ordered approximately $48,000 worth of groceries, meat and fowl in March 1960, and that less than half of it was in the bankrupt’s inventory on April 2, 1960 or accounted for by bank deposits in March. Meanwhile merchandise was sold, below cost, for cash which was not deposited in the business. Cf. United States v. Olweiss, 138 F.2d 798 (2 Cir. 1943), cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1944). In addition, there was evidence that the books of account were given to Frank Guglielmini prior to the bankruptcy and that they were never produced.

The appellants complain that during the ten days of trial the trial judge by his “reproachful, acrimonious and apparently baiting criticism” of Mr. Lewis, counsel for Frank Guglielmini, denied the defendants the effective assistance of counsel and conveyed to the jury the impression that he, the judge, “entertained feelings of suspicion and hostility towards the defense.”

The record contains numerous instances of repartee between the judge and defense counsel. Most of this was wholly unnecessary and much of it could only have served to demean counsel and cast an unfavorable light on the defense. For example, the court, on the third and fourth days of the trial, brought out in the presence of the jury that the Assistant United States Attorney was trying his first criminal case and that he was a “young boy” compared to Mr. Lewis, to whom the court said (R. 502-03):

“The Court: You must remember that you have tried criminal cases for years and years and years, is that right? And both of us have some experience in trying cases for many years, and we are much older than this young boy who is trying this case.

“Mr. Lewis: But he is very competent young boy who may be better than a decrepit old man.

“The Court: For this first criminal case he is trying—

“Mr. Lewis: He’s tried many civil cases and has been here many years.

“The Court: I said for the first criminal case he is trying we can’t be too critical, but when it comes to some of the jargon, he may not be as adept as those with more experience *

Later, during a conference at which the jury was not present, counsel moved for a mistrial because of the court’s remarks.

The court’s remarks were wholly unnecessary. While the trial judge undoubtedly thought he was merely redressing the balance between youth and experience, the obvious effect of such colloquies was to place the defense at a disadvantage in the eyes of the jury, as it cast the prosecutor in the role of a young neophyte David contesting against a practiced Goliath.

These were not the only unnecessary and disparaging remarks by the court. For example, after a question asked by Mr. Lewis had been objected to as argumentative, the trial judge said, “Your time to sum up, Mr. Lewis, will come later on” (R. 111). This remark was repeated on numerous occasions during the trial. Again, these remarks can only have served to discredit the defense in the eyes of the jury. To the same effect was the judge’s discussion, in the presence of the jury, of the Jencks Act, 18 U.S.C. § 3500, and the type of material that is producible thereunder (R. 285-290, 508-510). This discussion also discredited the defense and may have led the jury to believe that the defense was making demands which improperly imposed upon the government.

The trial judge’s frequent participation in the trial, by questions and comments, also tended to give the jury the impression that he credited the prosecution and disbelieved the defense. This was particularly noticeable in his frequent and sometimes lengthy interruption of Frank Guglielmini’s testimony. There are few pages of this defendant’s testimony, which runs from page 971 to page 1146 of the record, which are free of some question by the court, and there are numerous instances where the court took over the cross-examination from the prosecutor for extended periods. While the trial judge may, and indeed should, take an active part in the trial where necessary to clarify evidence and assist the jury, the persistent questioning the trial judge conducted in this case, together with his comments to defense counsel, conveyed to the jury far too strong an impression of his belief in the defendants’ guilt. See, e.g., United States v. Persico, 305 F.2d 534 (2 Cir. 1962); United States v. DeSisto, 289 F.2d 833 (2 Cir. 1961).

Few claims are more difficult to resolve than the claim that the trial judge, presiding over a jury trial, has thrown his weight in favor of one side to such an extent that it cannot be said that the trial has been a fair one. Where there is any substance to such a claim the reviewing court must examine the entire record and attempt to determine whether the conduct of the trial has been such that the jurors have been impressed with the trial judge’s partiality to one side to the point that this became a factor in the determination of the jury. This we have done. A reading of the record leaves us with the firm impression that the defendants did not receive the fair trial to which our law entitles them.

Frank Guglielmini also complains of the prosecutor’s references to his connection with another bankruptcy fraud as unnecessary and prejudicial. We agree. Guglielmini, having taken the stand in his own behalf, was cross-examined regarding his prior employment. When he could not recall where he worked in 1958, the prosecutor asked him: “Well, maybe I can refresh your recollection. Did you testify in this court in a bankruptcy fraud trial — ” Counsel’s immediate objection was overruled by the court, and the’prosecutor brought out the name of the defendant at that trial, one Sal Bilello, that it involved the Top Sail Supermarket, that the defendant had testified at the prior trial, and that as meat manager in that market he had done the “same things that you are doing now” (R. 1089-90).

It was error for the prosecutor to link the defendant Guglielmini to a prior bankruptcy fraud trial when its only relevance was to bring out what he had been doing in 1958. This evidence was not, of course, admissible under the rule that prior criminal acts of a defendant may, if sufficiently similar, be proved as some evidence of his guilty knowledge or intent in committing the act charged. Compare, e. g., United States v. Klein, 340 F.2d 547 (2 Cir.), cert. denied, 382 U.S. 850, 86 S.Ct. 97, 15 L.Ed.2d 89 (1965); United States v. Ross, 321 F.2d 61, 67 (2 Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). The purpose in putting the question could only have been to point out to the jury that the defendant was well acquainted with bankruptcy frauds. The trial judge erred in overruling counsel’s prompt objection.

Moreover, the prosecutor later compounded his improper questioning by referring to the incident in his summation, in these words (R. 1291-92):

“Now, he [Frank Guglielmini] testified he was the meat manager for a Sal Bilello in March of 1958. Once again before Easter. He testified in that trial as a government witness. He was the meat manager. Is that where he learned this scheme? Is that where he learned about building up the business and using the bankruptcy laws ?”

Again counsel’s timely objection and motion for mistrial were overruled. The trial judge erred in not sustaining the objection and directing the jury to disregard the prosecutor’s improper and unfair argument. As the principal issue in the case was the intent of the defendants, it is clear that permitting the intrusion of this irrelevant matter, which involved nothing more than Frank Guglielmini’s employment by someone who was later tried for bankruptcy fraud, was a substantial error. The strong inference of guilty knowledge which the prosecutor’s argument communicated to the jury could well have been a factor in their finding Guglielmini guilty. Compare, e. g., United States v. Tomaiolo, 249 F.2d 683, 688-690 (2 Cir. 1957); Nigro v. United States, 117 F.2d 624, 631-632, 133 A.L.R. 1128 (8 Cir. 1941).

The appellants complain of the court’s instructions to the jury regarding reasonable doubt. The court pointed out the presumption of innocence and the fact that it persists until “overcome by evidence which satisfies you beyond a reasonable doubt as to the defendant’s guilt.” The court further stated that the defendant did not have to prove his innocence, and that the burden was on the government “to prove beyond a reasonable doubt each essential element necessary to constitute the crime charged.”

The charge continued:

“Now, what is reasonable doubt? To justify you in returning a verdict of guilty against either one of these defendants on any one of these counts, the evidence that you believe must be of such a character as to satisfy your judgment to the exclusion of every reasonable doubt. I underline reasonable doubt so that if you can reconcile the evidence with any reasonable hypothesis consistent with a defendant’s innocence, then it is your duty to do so, and in that case find that defendant not guilty under that count of the indictment. In fact, if you find a probability of innocence, reasonably, then you have a reasonable doubt. I didn’t say positively. I said probability. So if after weighing all of the proofs and looking only to the evidence, the proofs you impartially and honestly entertain the belief that the defendants or either of them may be innocent of any one of the offenses charged in this indictment, then as to that indictment, that defendant is entitled to the benefit of that doubt, if you have that kind of a doubt, and then as to that count, that defendent should be acquitted.” (Emphasis supplied.)

While it may seem that a juror listening to the whole of the judge’s instructions would understand the government’s burden and the factors to be considered in assessing the reasonableness or unreasonableness of any doubt, we think the judge’s statement that a “probability of innocence” constitutes reasonable doubt may have confused one or more jurors. Putting the test in terms of a “probability of innocence” implies that a reasonable doubt exists only when the jury finds it more likely than not that the defendants are innocent. This would appear to put the burden of proving their innocence on the defendants or at least to reduce the prosecution’s burden from “beyond a reasonable doubt” to merely a preponderance of the evidence. It is sufficient for a finding of “reasonable doubt” that there exist an honest, substantial misgiving founded on the evidence and not on mere speculation; that misgiving need not be so strong as to lead to the belief that innocence is more likely than not.

It may well be that appellate courts have come to place too much reliance on the use of certain words in instructing juries about reasonable doubt. But we do not know how experienced and sophisticated each of the jurors may be in these matters; and we can never know just what words or thoughts are remembered and become the guides which weigh most heavily in the jury’s deliberations. It is quite possible that one or more jurors may have carried with them into the jury room the idea that the test is the probability of innocence and that they concluded that, in the absence of such probability, there was no reasonable doubt and it followed that guilt was established. As we cannot know to what extent this confusing element of “probability of innocence” may or may not have been corrected by the remainder of the judge’s charge on reasonable doubt, we hold that such instruction was error. Cf. United States v. Persico, 349 F.2d 6 (2 Cir. 1965).

We have examined the numerous other claims of error, but find that they do not merit discussion.

We do not hold that any one of the errors committed during the trial would have required reversal of the convictions. We do hold that, occurring at the same trial, the total effect of the errors we have found was to cast such a serious doubt on the fairness of the trial that the convictions must be reversed.