640 F. 2d 856 - United States v. Hart

Appellant James Hart was indicted and convicted by a jury in the United States District Court for the Eastern District of Michigan on two counts of possessing stolen mail in violation of 18 U.S.C. § 1708 (1976).1 There was substantial evidence upon which the jury could base a guilty verdict, and no question about the sufficiency of the evidence is presented here.

Hart challenges his conviction on three grounds in this appeal. His first challenge deals with the sufficiency of the indictment. Count One of the indictment (which is identical to Count Two except that the date, payee and number of the check are different) reads as follows:

That on or about March 28, 1977 at Detroit, in the Eastern District of Michigan, Southern Division, JAMES HART, defendant herein, did knowingly, unlawfully and wilfully possess State of Michigan Warrant No. 16837422 payable to Cynthia Grimes, said warrant having been properly addressed and mailed to said payee, in violation of Title 18, United States Code, Section 1708.

Hart argues that the indictment does not allege a crime. In order to prove a Section 1708 possession charge the government must establish three things: (1) possession by the defendant, (2) of property stolen from the mail, (3) which the defendant knew to be stolen. Blue v. United States, 528 F.2d 892 (8th Cir. 1976). Hart argues that the indictment only charges him with possession of the property and does not charge either that the property was stolen from the mail or that he knew it was stolen property.

There are two considerations which require that an indictment charge all the elements of the crime. The first of these is the defendant's right to be protected from double jeopardy. The second consideration is the defendant's right to be indicted by a grand jury and that the grand jury find probable cause as to each element of the crime.

This contention that the indictment is insufficient was not raised at trial or any other time prior to this appeal. Under Rule 12(b)(2), Fed.R.Cr.P., however, the sufficiency of the indictment may be challenged at any time, and, therefore, there has been no waiver of this issue by Hart. If, however, an indictment is not challenged until appeal, it will be construed liberally in favor of its sufficiency. United States v. Gibson, 513 F.2d 978 (6th Cir. 1975). Furthermore, unless the defendant can show prejudice, a conviction will not be reversed where the indictment is challenged only after conviction unless the indictment cannot within reason be construed to charge a crime. United States v. Thompson, 356 F.2d 216, 225-27 (2d Cir. 1965).

It is clear that Hart was not prejudiced by the use of this indictment. From the outset the government acknowledged that it had to prove all three elements of the offense and introduced evidence to establish all of the elements. The charge to the jury specifically required proof of all three elements, and both government and defense counsel, recognizing the necessity of the government's proving all three elements, discussed all three elements of the offense during their arguments to the jury. Indeed, Hart does not allege prejudice as a result of the use of the indictment.

We agree with Hart that the indictment is, to say the least, unartfully drafted. There is no question that the indictment does not expressly charge either that the checks were stolen from the mail, or that Hart knew the checks were stolen. Since, however, we must construe the indictment in favor of its sufficiency and must uphold the sufficiency if it can reasonably be construed to charge the crime of which Hart was convicted, we conclude that the sufficiency of this indictment must be upheld.

The indictment charges Hart with, in substance, wilfully and unlawfully possessing a check that had been mailed to Cynthia Grimes, in violation of 18 U.S.C. § 1708. It can be determined, by reference to the statute, that in order to possess property in violation of Section 1708 the property must be stolen from the mail and the possessor must know the property had been stolen. By reference to the statute it is within reason to construe the indictment to charge a crime, and, since Hart was not prejudiced, the conviction should not be reversed. United States v. Emler, 570 F.2d 584 (6th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 523 (1978).

Hart's second argument is that he is entitled to have his conviction reversed because of prosecutorial expression of personal belief during closing argument. Hart argues that this deprived him of a fair trial because the prosecutor was, in essence, asking the jury to rely on the prosecutor's beliefs to convict Hart. There are fifteen statements that are claimed to be impermissible expressions of personal opinion.2 Of these fifteen, we think it clear that there is nothing improper about numbers 1, 2, 3, 5, 6, 8, 10, 11, 13, 14 and 15. The remaining statements (4, 7, 9 and 12), however, are expressions of personal belief by the prosecutor and are improper. The government is apparently willing to concede that these statements are not proper, but argues that they do not constitute reversible error because the abuses were not flagrant or prejudicial, and Hart did not object to the statements at trial.

The standard by which statements of personal belief by a prosecutor are to be tested is set forth in United States v. Bess, 593 F.2d 749 (6th Cir. 1979). There we stated:

We do not adopt a per se reversible error rule, however. The threshold determination should be whether counsel's comments can be reasonably construed to be based on personal belief. If so, the statements should ordinarily be deemed to be error. More commonly, however, the complained-of conduct will not rise to reversible error, notably if it is not flagrant, where proof of guilt is over-whelming, where counsel does not object and/or where the trial judge steps in and admonishes the jury.

Id. at 756-57. We do not believe these statements taken individually or collectively constitute reversible error. It is apparent from reading the entire closing argument that the prosecutor liberally used the phrase "I think." Putting these statements into context it is possible to view the "I think" as simply a matter of oratorical style rather than an indication of an intent to express personal opinion. This, however, does not make such statements proper. We conclude, though, that the statements were not flagrant abuses. Moreover, Hart did not object to a single statement at trial.

As we stated in Bess, the standard announced there as to what constitutes reversible error is flexible, and the reason is to place the basic responsibility on the trial judges to resolve this problem. If Hart had objected, the trial court could have admonished the prosecutor. Since the statements were not flagrant abuses and since Hart failed to object we decline to reverse on this ground.

Hart's final argument is that the court's charge on reasonable doubt shifted the burden to the defense to establish reasonable doubt. There was some argument that Hart did not sufficiently object to this instruction to raise it on appeal, but we believe there was an adequate objection to preserve the issue. The instruction in question reads as follows:

You have heard a lot about reasonable doubt. Reasonable doubt is a doubt founded in reason, and arising from the evidence. Not a mere hesitation of the mind to pronounce guilt because of the punishment that may follow. The punishment, if any, is for the Court. Not a mere capricious doubt or hesitancy of the mind to say this man did so and so, but it must be a doubt founded in reason and arising from the evidence, and you can't go outside the evidence that you have heard and seen in this case to make any kind of a determination.

Hart's objection to this instruction really has two parts. He argues first that the instruction does not adequately define reasonable doubt and second, that the instruction improperly shifts the burden of proof from the government to him. Although the instruction does not go into a detailed definition of reasonable doubt, we think the definition is adequate and conveys the essential concepts.

Hart's basic complaint, though, is not that reasonable doubt was inadequately defined but that the instruction did not require the government to prove absence of reasonable doubt, thereby shifting the burden of proof. Hart relies primarily on Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978) to support his contention that this instruction shifted the burden of proof. In Dunn the trial court defined reasonable doubt as "a strong and abiding conviction as still remains after careful consideration of all the facts." In reversing, the First Circuit said that this instruction required the defendant to prove reasonable doubt instead of requiring the government to prove guilt. The distinction, however, is that by requiring "strong and abiding" doubt this instruction requires more than reasonable doubt. Here the court only required that the doubt be founded in reason and arise from the evidence.

The gravamen of Hart's complaint is that the instruction told the jury it could not look beyond the evidence to find reasonable doubt. In Ashe v. United States, 288 F.2d 725 (6th Cir. 1961), this court held that a failure to specifically charge that "want of evidence" is a sufficient basis for reasonable doubt is not error where, as here, the court had instructed the jury that the burden was on the government to prove each and every element of the crime beyond a reasonable doubt.

We do not think the instruction given here, taken in the context of the instructions as a whole, shifted to Hart the burden of proving reasonable doubt. The judge, in other parts of the charge, told the jury, among other things, that the government had the burden of proving each element of the offense beyond a reasonable doubt, that Hart had no burden of producing any evidence and that if two conclusions could be reached the jury should reach a verdict of innocent.

While we uphold this reasonable doubt charge, we think that it would have been much better if the district judge had given the charge offered by either the defense or the government.3 Both of those instructions (which are similar) provide a much better definition of reasonable doubt than the instruction actually given and also define more clearly the government's burden of proving absence of reasonable doubt.

For the reasons stated above the judgment of the district court is affirmed.