United States v. Maurice F. Irving , 437 F.2d 649 ( 1970 )

WILKEY, Circuit Judge:

In its present posture this case is before us on rehearing. After the original submission of this appeal on briefs and oral argument, this court unanimously affirmed appellant’s conviction for burglary and petty larceny by a per curiam order without opinion. In so doing, however, the present writer added a concurring opinion stating in part:

[W]e do not approve that portion of the instructions given by the trial court, on the charge of aiding and abetting, which consisted of the following example:

Let’s say A and B are friends, walking down the street or riding around the streets, and B says to A, “would you please take me by the bank at such and such a place, I want to cash a check, and will you wait for me outside.”

And A says, “Fine, I’ll take you.” So A takes him, and B goes in and robs the bank. Of course, in that circumstance A, not knowing that there was any intention to rob the bank, A, not knowing that a crime was going to be committed, A would not be guilty of robbing the bank.

Further, though, if B came out of the bank and said, “I have just robbed it, I have got this sack full of money, let’s go,” and then B got in A’s car and A took off and ran knowing that the crime had been committed, and helping in the escape, he could be liable.

The last paragraph of this example was erroneous, in that it did not describe the aiding and abetting of a substantive offense, D.C.Code § 22-105, but rather described the offense of an accessory after the fact, D.C. Code § 22-106. See United States v. Varelli, 407 F.2d 735, 749 (7th Cir. 1969). Since appellant’s indictment did not charge him with being an accessory after the fact, the giving of this example to the jury was error. See Government of Virgin Islands v. Aquino, 378 F.2d 540, 552-554 (3rd Cir. 1967).

Thus inspired and encouraged, appellant’s counsel then came forward with a strongly worded and researched petition for rehearing, relying principally on the Supreme Court decision in Bollenbach v. United States.¹ We granted rehearing. Our own research has added decisions of this court following Bollenbach, in circumstances which appear indistinguishable from those of the case at bar. We therefore find it necessary to reverse appellant’s conviction and remand for a new trial.

The erroneous example in the charge quoted above was a most unfortunate lapse in an otherwise very ably conducted trial by an experienced trial judge. During his main charge the District Judge correctly instructed the jury on aiding and abetting. Two hours and 19 minutes after the jury had retired for deliberations² the court reconvened to respond to the jury’s note reading:

Could I have a clarification of the aiding and abetting as far as burglary is concerned.

The District Judge then repeated his correct aiding and abetting instruction. Further to assist the jury, he then followed that charge with an example in which the accused would plainly be guilty of the crime of aiding and abetting a bank robbery. Appellant’s counsel then asked for an example in which the accused would not be guilty of aiding and abetting, whereupon the District Judge gave the erroneous instruction cited above, to which objection was immediately made.

The unfortunate and most critical circumstance is that the words of this erroneous instruction were the very last words uttered to the jury other than the instruction, “You may retire and resume your deliberations.” In less than 15 minutes the jury returned with a verdict of guilty.

In Bollenbach v. United States, the precedent case for the line of authority by which we feel compelled to reverse this conviction, none of which was cited to us in the original briefs and argument, the Supreme Court, speaking through Mr. Justice Frankfurter, held:

Particularly in a criminal trial, the judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge.³

We do not characterize the charge of the District Judge here as an “un-illuminating abstract” one, although it was “unexceptionable” in the sense that it was entirely correct and no objection was made thereto. But in Bollenbach, as here, the judge had originally given technically correct instructions and, upon finding the jury uncertain as to the meaning of those instructions and how they should be applied to the case, answered explicit questions of the jury with an erroneous instruction. In Bol-lenbach, as here, the faulty example was followed in a matter of minutes by a return to the courtroom with a guilty verdict. In commenting, Mr. Justice Frankfurter wrote:

* * * [The jury] reached a verdict of guilty under the conspiracy count five minutes after their inquiry was answered by an untenable legal proposition. It would indeed be a long jump at guessing to be confident that the jury did not rely on the erroneous “presumption” given them as a guide.⁴

We are not disposed to take the “long jump at guessing” that the jury did not rely on the last words of the trial judge, particularly since the Supreme Court in Bollenbach pointed out the length of the jump involved, i. e., that in so doing an appellate court must assume “that the lay jury will know enough to disregard the judge’s bad law if in fact he misguides them.”⁵

We believe the Government’s reliance upon Kotteakos v. United States⁶ and Federal Rule of Criminal Procedure 52 (a) is misplaced. In Kotteakos the Supreme Court carefully considered the historical origin and the practical application of the harmless error rule, now Fed.R.Crim.P. 52(a), and reversed the convictions because of an erroneous instruction. In so doing, Mr. Justice Rutledge wrote,

But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.⁷

Although the erroneous charge and circumstances in Kotteakos were not similar to the case at bar, the principle expressed is the same as that in Bollen-bacht where the type of charge and circumstances of time and possible effect were almost identical to that in Irving here.

We are reinforced in this opinion by decisions of our own court after Bollen-bach and Kotteakos had been decided by the Supreme Court. In McFarland v. United States, Circuit Judge Wilbur K. Miller, speaking for a unanimous court, wrote:

If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudicial, for the jury might have followed the erroneous instruction. (Citing cases.) “A conviction ought not to rest on an equivocal direction to the jury on a basic issue.” Bollen-bach v. United States, * * *.⁸

McFarland’s conviction for perjury was reversed. We see no distinction between McFarland and Irving.

In Kitchen v. United States ⁹ this court reversed and remanded for a new trial a conviction for first degree murder, when an erroneous instruction defining murder in the second degree was given by the trial judge. In so doing this court relied on the principle of Bollen-bach, although the circumstances in Kitchen were the reverse of Bollenbach and the case at bar. In Kitchen this court believed that the jury, although it convicted of first degree murder, should have had the option of considering second degree murder under a correct instruction, while in the case at bar the jury was given the option of convicting on a charge of accessory after the fact when such charge was not made by the indictment and was an offense distinct from and not included in the one charged.

Under the Government’s evidence, in the car which he was driving the appellant had goods which had been stolen less than an hour before through the commission of a burglary and larceny. Under the trial court’s instructions the jury had three alternatives on which it could base a finding of guilty:

1. That he personally committed the burglary and larceny; or

2. That he aided and abetted the burglary and larceny; or

3. That he was an accessory after the fact to such burglary and larceny.

The evidence tended to show that he was the driver of the getaway car, and had probably waited outside the Holiday Inn. It is logical that the jury concluded he was guilty under either alternative 2 or 3. But which? The trial judge in his last two examples had equated 2 and 3 as being the same offense, and implied that the jury could convict or acquit on either theory. The appellant was never charged with being an accessory after the fact, which is a separate offense carrying a punishment different from and less than aiding and abetting.¹⁰

For determination of appellant’s guilt or innocence under proper instructions, appellant’s conviction must therefore be

Reversed and remanded.

1 . 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

2 . This included time for lunch, organization of the jury, and selection of a foreman.

3 . 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946).

4 . Id. at 614, 66 S.Ct. at 406.

5 . Id. at 613-614, 66 S.Ct. at 405.

6 . 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

7 . Id. at 765, 66 S.Ct. at 1248.

8 . 85 U.S.App.D.C. 19, 20, 174 F.2d 538, 539 (1949).

9 . 92 U.S.App.D.C. 382, 205 F.2d 720 (1953).

10 . Compare 22 D.C.Code § 22-105 with 22 D.C.Code § 22-106 (1967).

We do not agree with the dissenting view that the instruction can he saved by considering that the asportation element of a robbery offense continued while a hypothetical driver piloted the get away car.

The offense in reference to which the judge was instructing the jury was burglary, not robbery. Asportation is no element of the crime of burglary. Burglary was complete by the time the other participants left the building. Even if the instruction be considered to be correct on robbery, it was incorrect and misleading in this case, because it was to be applied by the jury to determining guilt or innocence on the charge of burglary.