STEVEN EARL NEUMANN, PETITIONER V. UNITED STATES OF AMERICA No. 89-6554 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINIONS BELOW The en banc opinion of the court of appeals (Pet. App. A1-A15) is reported at 887 F.2d 880. The panel opinion is reported at 867 F.2d 1102. JURISDICTION The judgment of the court of appeals was rendered on October 13, 1989, and a petition for rehearing was denied on November 21, 1989. The petition for a writ of certiorari was filed on January 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court committed plain error by commenting to the jury that all but one of the elements of the charged offenses appeared to be undisputed. STATEMENT 1. Following a jury trial before Judge Devitt in the United States District Court for the District of Minnesota, petitioner was convicted on one count of bank robbery by use of a dangerous weapon in violation of 18 U.S.C. 2113(a) and (d), and one count of using a firearm during a crime of violence in violation of 18 U.S.C. 924(c)(1). He was sentenced to consecutive prison terms of twenty years on the robbery charge and five years on the weapons charge. The evidence at trial showed that, on May 28, 1987, a person armed with a rifle robbed the McGregor State Bank in McGregor, Minnesota, of more than $16,000. Bank tellers described the robber as about five feet eight inches tall, wearing a long coat, jeans, boots, and a broad-brimmed hat, with all of his face but his eyes wrapped in cloth. Pet. App. A2. Before departing, the robber fired a bullet through a light fixture in the bank. The shell casing from the bullet was positively identified as having been fired from the same rifle as three shell casings that had been furnished to the police by the owner of a small farm where petitioner had been living shortly before the robbery. Pet. 3. The farmer testified that the gun and a rifle sheath, both of which belonged to him, were missing after petitioner had left the farm. Tr. 162, 168-170, 261-262. Petitioner was arrested for the robbery on August 1, 1987. Two days later, state and federal authorities searched his pickup truck and attached camper pursuant to a warrant and seized about $4,000 in cash, the farmer's missing rifle sheath, and records of recent cash transactions by petitioner, including the purchase of the pickup and camper, a horse, and riding gear. Pet. App. A2, A7. In its instructions, the court advised the jury that they were not bound by anything it might say about the facts of the case, and that they were "the exclusive judges" of the facts. Tr. 496. The court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt "every essential element of the crimes charged" (Tr. 497); it then explained the elements of the robbery charge (Tr. 499-502) and the weapons charge (Tr. 502). After cautioning the jury once more that its comments about the evidence "are not intended to substitute the facts as you find them to be * * * but (are intended) to try to assist you in getting the point of it all and what the issue is" (Tr. 502-503), the court stated: I have the feeling, from the arguments of both lawyers and from listening to the evidence -- and I kept pretty good notes -- that there really isn't much question about these four requirements in one case and two in the other being satisfied, if this is the defendant who did the robbery. And, of course, that is the principal defense of the defendant -- that he didn't do it and the government hasn't proved that he did it. So I think that, probably, may turn out to be the principal issue that you have for decision; not the satisfaction of these requirements, because it doesn't seem to be disputed that somebody came into the bank with a rifle and threatened people and shot up on the wall. And the three tellers told us how frightened and apprehensive they were. And money was gone, no question about it. Some $16,000. So these somewhat technical requirements for bank robbery and using a dangerous weapon in a crime of violence, it seems to me, are satisfied if, if this is the man who did it. Pet. App. A3. Petitioner raised no objection to these remarks. The court then referred to each side's theory of the case: (T)he defendant's main argument seems to be: My man didn't do it and the government hasn't proved that he did it. The government's main argument seems to be: Well, we didn't have too many eyewitness people to tell us about it because he had a bandage on his face. I think only one witness, maybe that was Mrs. Farley, was the only one who, with some positiveness, indicated -- maybe she didn't aver it -- that he was the man. But basically, the government's case is built on circumstantial evidence. Tr. 503-504. The court further instructed the jury that "the burden is always upon the government to prove beyond a reasonable doubt every essential element of a crime before the defendant may be found guilty of it" (Tr. 506, 507, 511), that petitioner had no duty or burden to call any witnesses or produce any evidence (Tr. 508), and that they were "to determine the facts from your recollection of the testimony and the evidence, not from what I might have said or the lawyers might have said, but from your own recollection" (ibid.). 2. The court of appeals affirmed. 867 F.2d 1102. The court unanimously held that "(i)n the context of the complete jury charge and the evidence presented at trial, * * * the trial judge's comments were a fair summary of the evidence, and did not relieve the jury of its duty to find that each element of the charged offenses was satisfied." Id. at 1104. The court observed that the government's evidence that there was an armed robbery of a federally insured bank was in fact uncontradicted, and the district court's comments to this effect "properly focused the jury's attention on the 'principal issue' -- circumstantial evidence establishing that (petitioner) was the bank robber." Ibid. Judge Arnold, in a concurring opinion, stated his view that reversal would have been required but for defense counsel's failure to object, because "a reasonable juror could have understood that the trial judge was limiting the jury's function to the 'principal issue,' that is, the identity of the robber." 867 F.2d at 1107. Judge Arnold nevertheless agreed that there was no plain error, because (1) other portions of the district court's charge were correct, (2) the jury may not have understood that it was required to make any particular findings, (3) some of the elements at issue were technical, and (4) "in truth, the judge's statement that the real issue in the case was the identity of the defendant was a correct one." Ibid. Judge Larson also concurred separately. He stated his opinion that the "better practice" is for judges to refrain from commenting on the evidence, but agreed that "the alleged errors did not, when considered in the context of all the circumstances of this case, result in a miscarriage of justice." 867 F.2d at 1108 (citations omitted). 3. On rehearing en banc, the court of appeals adopted the panel opinion and affirmed the convictions. Pet. App. A1-A15. The court observed that, before commenting on the evidence, the district court had cautioned the jury that they alone were the finders of fact, that its remarks were intended only to assist them in focusing on the principal issue in the case, and that the government bore the burden of establishing every element of the crimes charged beyond a reasonable doubt. The court of appeals also noted that the government's case had included direct and uncontradicted evidence of a robbery of a federally insured bank, and that defense counsel himself had conceded both at a pre-trial conference and at the jury charge conference that identification was the basic factual issue in the case. Pet. App. A4. Accordingly, the court of appeals determined that the trial judge's jury charge was not erroneous. The court of appeals also rejected petitioner's claim that the district court's summary of the evidence had been impermissibly one-sided. Pet. App. A5. Judge McMillian dissented. He would have reversed and remanded for a new trial on the ground that the district court's comments upon and summary of the evidence "simply went too far" and amounted to a partially directed verdict against petitioner. Pet. App. A14-A15. ARGUMENT Petitioner renews his contention (Pet. 4-7) that the comments of the district court in effect directed a verdict against him on all but one of the issues. He asserts that the decision of the court of appeals conflicts with another decision of that court, a decision of another court of appeals, and with this Court's decision in United States v. Murdock, 290 U.S. 389 (1933). Petitioner also contends that the court's decision constitutes such a departure from the accepted and usual course of judicial proceedings as to warrant this Court's exercise of its supervisory authority over the federal courts. None of these contentions warrants review by this Court. /1/ Petitioner concedes (Pet. 4) that he did not object to the district court's comments at trial. His conviction therefore is subject to reversal only if the district court committed plain error. Fed. R. Crim. P. 30, 52(b); United States v. Frady, 456 U.S. 152, 163 (1982). The plain error doctrine authorizes a reviewing court "to correct only 'particularly egregious errors,' * * * (and) is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result," United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. at 163 & n.14). See also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.") (footnote omitted). No such error occurred here. This Court established long ago that it is the right and duty of the (federal) court to aid (the jury) by recalling the testimony to their recollection, by collating its details, by suggesting grounds of preference where there is contradiction, (and) by directing their attention to the most important facts * * *. How this duty shall be performed depends in every case upon the discretion of the judge. Nudd v. Burrows, 91 U.S. 426, 439 (1875). See also Starr v. United States, 153 U.S. 614, 624-625 (1894) ("(I)f no rule of law is incorrectly stated, and the matters of fact are ultimately submitted to the determination of the jury, * * * an expression of opinion upon the facts is not reviewable on error."). In Quercia v. United States, 289 U.S. 466 (1933), the Court reaffirmed that a district court may explain and comment upon the evidence "by drawing (the jury's) attention to the parts of it which he thinks important," and may also "express his opinion upon the facts, provided he makes it clear to the jury that all matters of facts are submitted to their determination." Id. at 469. See also Patton v. United States, 281 U.S. 276, 288-289 (1930) (district court is empowered to "advise (the jury) on the facts"). Where there is no dispute as to particular facts, the trial judge "may say so although there has been no formal agreement." Horning v. District of Columbia, 254 U.S. 135, 138 (1920); id. at 139 ("judge may comment freely on the evidence and express his opinion whether facts alleged have been proved") (Brandeis, J., dissenting). See also J. Weinstein & M. Berger, Weinstein's Evidence, Section 107(03) at 42-44 (1989) (generally no basis for reversal where court "confines its remarks to the evidence in the case, specifically instructs the jury that the opinions expressed are those of the court and are not binding, and informs the jury that they have the ultimate responsibility for resolving issues of fact") (collecting cases). The court of appeals correctly applied this settled law to conclude that there was no plain error in this case. The district court emphasized to the jurors that they were "the exclusive judges" of the facts, and that their recollection of the evidence was controlling. Tr. 496, 508. The court repeatedly told the jury that the government had the burden of proving each and every element of the offenses charged beyond a reasonable doubt; it also stated that petitioner had no duty to produce any evidence or call any witnesses. Tr. 496-502, 506-508, 511. It cautioned the jury that nothing it might say about the evidence bound them in any way, and that its comments were intended solely to help them in focusing on the principal issue in the case. Tr. 496, 502-503. It was in this context that the court identified what was in fact "the principal defense of the defendant -- that he didn't do it and that the government hasn't proved that he did it," correctly observed that "it doesn't seem to be disputed" that a robbery occurred, and appropriately suggested that the issue of identity "may turn out to be the principal issue that you have for decision * * *." Tr. 503. These remarks essentially recapitulated defense counsel's statements to the court (Pet. App. A4) and his arguments to the jury. /2/ In sum, the trial judge's comments were proper when viewed, as they must be, in the context of the whole charge and the evidence presented at trial. See Cupp v. Naughton, 414 U.S. 141, 146-147 (1973) (jury instructions "may not be judged in artificial isolation, but must be viewed in the context of the overall charge"). Petitioner asserts that the court of appeals' decision conflicts with this Court's decision in United States v. Murdock, supra, and with the court of appeals' decision in United States v. Natale, 526 F.2d 1160 (2d Cir. 1975), cert. denied, 425 U.S. 950 (1976). Petitioner is flatly wrong. In Murdock, this Court reversed a conviction because the district court told the jury that "(t)he court feels * * * that this defendant is guilty in manner and form as charged beyond a reasonable doubt." 290 U.S. at 393. The Court stated that such an expression of opinion of guilt exceeded the district court's undoubted authority to "analyze the evidence, comment upon it, and express his views with regard to the testimony of witnesses." Id. at 394. In contrast, the district court in this case did not express or even intimate an opinion as to petitioner's guilt or innocence; it simply directed the jury's attention to the central disputed issue in the case. The decision of the court of appeals in Natale does not, as petitioner contends (Pet. 6), "directly conflict()" with the Eighth Circuit's decision here, but thoroughly supports it. In Natale, the court of appeals affirmed convictions for conspiracy and extortion against challenges similar to the ones that petitioner raises here. In so doing, the court reasoned that the trial judge did charge each element of the offense. His indication that he did not 'think' there was any dispute in the evidence as to the first two elements of the offense fell far short of an actual direction to the jury that these essential facts had been proven beyond a reasonable doubt. A trial judge is permitted to comment upon the evidence if he does so fairly and makes clear to the jury that all matters of fact are submitted for their determination. * * * The judge's expressed opinion as to the absence of dispute over the first two elements of the offense was not in any sense unfair. The evidence that a debt existed and that efforts at collection had been made was, in fact, not disputed by the defense. 526 F.2d at 1167 (citations omitted). The Second Circuit has since reaffirmed that where there is "no 'dispute' in the ordinary sense of an issue on which opposing evidence or argument has been presented," the trial judge may indicate as much to the jury. See United States v. Sliker, 751 F.2d 477, 485 (2d Cir. 1984), cert. denied, 470 U.S. 1058 (1985). See also United States v. Canales, 744 F.2d 413, 434 (5th Cir. 1984). In short, the petition utterly fails to demonstrate an inter-circuit conflict. /3/ Nor is there any basis for petitioner's suggestion that this Court should exercise its supervisory authority to correct "a clear departure from the usual course of judicial proceedings." Pet. 6. To be sure, some trial judges would have refrained from commenting upn or summarizing the evidence in this case, while others would have done so in a different fashion. But the comments of Judge Devitt were appropriate to the circumstances of this case, and present no occasion for the exercise of this Court's supervisory authority. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney MAY 1990 /1/ Petitioner has abandoned his contention that the district court's summary of the evidence was impermissibly one-sided. The court of appeals properly rejected this contention because the comments favorable to petitioner were not in fact supported by the evidence. Pet. App. A5. /2/ Petitioner's attorney told the jury during his opening statement that "probably the most striking issue in this case is one of identification." Tr. 52. He also stated that "a man came into the bank and robbed it. That's undisputed." Ibid. /3/ Petitioner also alleges a conflict between the en banc decision of the court of appeals in this case and another of its decisions, United States v. Brandom, 479 F.2d 830 (8th Cir. 1973). Even if an ealier panel decision could create an intra-circuit conflict with a later en banc decision, intra-circuit certiorari. See Davis v. United States, 417 U.S. 333, 340 (1974). In fact, Brandom is entirely consistent with the X holding in this case. In Brandom, a mail fraud case in which intent to defraud was vigorously disputed, the Eighth Circuit held that the district court had committed reversible error when it declared that it believed the X government had proven intent to defraud beyond a reasonable doubt. 479 F.2d at 832-833. In this case the district court made no such declaration, but simply focused the jury's attention on the primary issue in the case.