United States v. Bernard Murray

GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

Appellant Murray was indicted on five counts of mail fraud as a result of what a jury found to be fraudulent insurance claims. A jury found defendant guilty on all five counts and the District Judge sentenced Murray to a four-year probationary term and fined him $5,000. The facts available to the jury in this case on which it found defendant guilty were such as to constitute support for the conviction.

Nonetheless, issues of substance are present in this appeal. The first concerns whether or not a prosecution witness’s mention of the words “polygraph examination” before he was stopped by objection (promptly sustained by the court) constituted reversible error. The second concerns whether there was reversible error in the court’s charge.

As to the first of these asserted errors, mention of a polygraph test introduced serious error into this record. This Circuit holds any introduction of polygraph material to be error. United States v. Fife, 573 F.2d 369 (6th Cir.1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977). Our examination of this record does not allow us to agree with the government that the error was harmless beyond reasonable doubt. So far as can be determined from this record, the comment was introduced deliberately by an experienced FBI Agent. It was, of course, objected to immediately, and, out of the presence of the jury, the District Judge heard and sustained the objection and agreed to and did charge the jury to disregard it. Such an instruction, however, is very close to an instruction to unring a bell. We do not hold that under any and all circumstances in every case where the words “polygraph examination”, are mentioned, a grant of a new trial would be required. The proofs of guilt in this case are not, however, so overwhelming as to allow us to say the error complained of here was harmless beyond reasonable doubt.

If we did have doubt concerning whether the first issue we have discussed mandated vacating the judgment and sentence and granting a new trial, we do not think that we would be able to escape the conclusion that the errors in the charge (when added to the first error) were together sufficiently serious to represent reversible error. The most serious of defendant’s contentions about the charge are the following:

The defendant is at present presumed innocent. The Government has the burden of proving him guilty beyond a reasonable doubt and if it fails to do so, you must acquit him. It is not required that the Government prove guilt beyond a reasonable doubt, all possible doubt. The test is one of reasonable doubt.

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____It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence such as this testimony of an eye witness. The other is indirect or circumstantial evidence, the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of the evidence in the case, both direct and circumstantial, (emphasis added)

T., September 14, 1982, pp. 133-34; pp. 139-40.

We recognize, of course, that the standard and proper charge, “The burden is all upon the prosecution to prove guilt beyond a reasonable doubt,” was given and reiterated a number of times. Nonetheless, there is no way to be certain that the jurors did not have fixed in their minds the clearly erroneous instructions which we have quoted and underlined above.

The government has evidence pointing toward Mr. Murray’s guilt which may well convince another jury, not subject to the errors we have cited, that they should render the same verdict of guilty as did the jury in our instant case. We do not, however, find from this record available to us as a reviewing court the conviction that the errors recited above were harmless in the sense that they “did not influence the jury” or had “but very slight effect.”

We believe that this standard for our review was established long ago in Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), where the Supreme Court said:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand, except perhaps where departure is from a constitutional norm or a specific command from Congress____ 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 phrase affected by the error. It is rather, even so, whether the error itself had substantial influence.

The judgment of the District Court is reversed and the case is remanded for new trial.