United States v. Thomas Di Donato, 301 F.2d 383, 2d Cir. (1962)

301 F.
2d 383
UNITED STATES of America, Appellee,

v.
Thomas DI DONATO, Appellant.
No. 291, Docket 27349.
United States Court of Appeals Second Circuit.

Argued March 6, 1962.
Decided March 21, 1962, Certiorari Denied June 11, 1962, See
82, S.Ct. 1554.
James J. Hanrahan, New York City for appellant.

T. F. Gilroy Daly, New York City (Robert M. Morgenthau, U.S. Atty. for
Southern Dist. of New York, and Sheldon H. Elsen, Asst. U.S. Atty., of
counsel), for appellee.
Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL,
Circuit Judges.
KAUFMAN, Circuit Judge.
After a trial before Judge Murphy and a jury Thomas Di Donato was convicted
on a single count indictment charging him with possession of 82 counterfeit $20
Federal Reserve Notes in violation of 18 U.S.C. 472, and was sentenced to 5
years imprisonment.
The government's evidence showed that on December 15, 1960, Di Donato met
one 'Johnny' in a Manhattan restaurant and purchased the counterfeit bills
specified in the indictment. Di Donato then proceeded to a tavern at 8th Avenue
and 52nd Street where he was approached by two New York City detectives.
Although the detectives were unaware at that time of the counterfeit bill
transaction they escorted Di Donato out of the tavern and searched him. Upon
finding the bills the detectives took appellant to a station house in the Bronx.
En route Di Donato not only admitted the transaction with Johnny, but also
conceded that the bills were counterfeit. Appellant later repeated this admission
to a Secret Service agent who had been notified of the arrest by the police.
Appellant attacks his conviction on three principal grounds. First, he asserts

that the counterfeit bills should not have been admitted into evidence because
they were obtained by an unlawful search and seizure in violation of his
constitutional rights. Second, he contends that the trial court committed
reversible error by refusing to instruct the jury that it must acquit if the
government failed to prove his guilt, although the court already had charged
that a verdict of guilty could be returned only if guilt was proven beyond a
reasonable doubt. Third, he claims that the trial judge, in answering a question
by the jury concerning the effect of a recommendation of leniency, suggested
that the defendant was guilty.
The first government witness was Seccret Service agent Wilmer K. Deckard
who had been summoned by the arresting detectives. The agent identified the
bills found on Di Donato and stated that they were counterfeit. The government
then offered the bills into evidence. At his request, defense counsel was then
granted a voir dire of the agent. At its conclusions counsel stated he had 'no
objection' to the receipt of the bills in evidence as Exhibit 1. On resumption of
the agent's testimony counsel experienced a change of mind and objected with
an oblique reference to an unlawful search and seizure. Assuming arguendo that
appellant's constitutional claim was correct, we hold that he waived any right he
may have had to suppress the evidence. Rule 41(e), Fed.R.Crim.P., 18 U.S.C.,
provides that a motion to suppress evidence 'shall be made before trial or
hearing unless opportunity therfor did not exist or the defendant was not aware
of the grounds for the motion'; however, the court has discretion to entertain
the motion at trial. Here the bills were obtained from the person of the
defendant when he was arrested a year before his trial,1 and he was aware of all
the circumstances related to the alleged improper procuring of evidence long
before the case came to trial. At no time between the arrest and trial did he
move to suppress the evidence. In fact, On October 9, 1961, the day set for the
making of defense motions, appellants took no action at all. This was ten
months after the search and seizure of the notes. We do not have a case in
which there was any legal uncertainty that suppression would be available if
appellant's factual assertions were correct, Elkins v. United States, 364 U.S.
206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); nor was any reason or excuse
offered at the trial for the failure to make the motion for suppression earlier. In
United States v. Romero, 249 F.2d 371, 374 (2nd Cir. 1957) we held, under
similar circumstances, that the motion was addressed to the discretion of the
court; and concluded that where the motion was made after trial commended,
and more than three months after seizure, its denial was not an abuse of the that
descretion. We have already noted that in the instant case the motion was made
after trial commenced and a year after the seizure. We conclude that here, as in
Romero, the judge did not abuse his discretion. United States v. Sheba
Bracelets, 248 F.2d 134, 139 (2nd Cir.), cert. denied 355 U.S. 904, 78 S.Ct.
330, 2 L.Ed. 259 (1957).
5
The court instructed the jury that the defendant was presumed innocent and that
the government had the burden to prove he was not. Furthermore, the jury was
told that 'the quantum or the measure of proof' which was necessary before they
could 'lawfully * * * find the defendant guilty is referred to as proof beyond a
reasonable doubt.' This was defined, in part, as a doubt which 'most nearly
signifies one which the average person of ordinary prudence and intelligence
has after weighing all the evidence cardfully.' Appellant does not contend that
these instructions were wrong; he insist that they were inadequate. Specifically,
he says it was reversible error for the court to refuse to instruct the jurors as
requested that if there was a reasonable doubt in their minds as to his guilt, 'they
have a right to, and they must by duty' acquit him.
It is difficult to perceive why the court refused to make explicit what was
already implicit, namely, that if the government failed to prove the defendant's
guilt beyond a reasonable doubt the jury must acquit. This is certainly the law,
United States v. Pape, 144 F.2d 778, 781 (2nd Cir.), cert. denied, 323 U.S. 752,
65 S.Ct. 86, 89 L.Ed. 602 (1944), and it is surely crucial to a fair trial that the
essence of the requested charge be conveyed to the jury. Although a defendant
cannot complain of the court's refusal to charge exactly as he request, United
States v. Verra, 301 F.2d 381, 2nd Cir., 1962; United States v. Arrow Packing
Corp., 153 F.2d 669, 671 (2nd Cir.), cert. denied, 327 U.S. 805, 66 S.Ct. 962,
90 L.Ed. 1030 (1946), he may justifiably complain when the court refuses to
charge the correct law expressly, and thereby relies upon the jury's ability to
inter it. If no objection is made there may be no error-- if the inference is plain.
However, when an objection is made, the trial judge ought to utilize the
opportunity provided to correct oversight and to clarify the law for the jury.
This is especially important in criminal cases in which the liberty of the
defendant may depend upon every word the judge may say-- or fail to say. For
a judge must 'be a light to jurors to open their eyes * * *.'2
Nevertheless, in the present case we are unwilling to hold that the court's
failure to give the requested charge was prejudicial error. The indictment
contained but one count; the facts were simple. Despite the omission the charge
adequately explained the government's burden of proof.3 It would seem,
therefore, that while the jury should have been apprised of its duty to acquit if
the government failed to prove guilt, in the context of this case, the failure to
give the instruction did not affect substantial rights and was harmless error.
Rule 52(a), Fed.R.Crim.P.; Pezznola v. United States, 232 F.2d 907, 915 (1st
Cir.), cert. denied, 352 U.S. 834, 77 S.Ct. 53, 1 L.Ed.2d 54 (1956). Insofar as
McKenzie v. United States,75 U.S.App.D.C. 270, 126 F.2d 533 (1942) and
Williams v. United States, 76 U.S.App.D.C. 299, 131 F.2d 21 (1942) suggest
that the District of Columbia Circuit might reverse in a case where the
constituent elements of the crime are complex, they are not apposite. If those
decisions stand for an inflexible rule without regard to the simplicity of the
case or the harmless error doctrine, we decline to follow them.
8
Two hours after the jury retired to deliberate the trial judge received a note
from the jury stating: 'There is a question as to whether we can recommend
leniency.' The jury was brought back to the courtroom and the judge spoke to
them as follows:
'Ladies and Gentlemen, * * * I suppose by that (note) you mean whether in

returning your verdict you can recommend leniency. The answer is that if you
arrive at a verdict of guilty you can recommend anything you want, but I must
tell you in the same breath that it has no weight with me. If the man is guilty,
on me alone, on my conscience, is the question of sentence, but that doesn's
prevent you from recommending anything you want. But I want it perfectly
understood that if your verdict is that the man is guilty, what punishment he
should get is my problem, not yours at all.
10
'So, would you please retire now.' Tr. p. 224.
11
Appellant claims that this instruction (in addition to his claim of an 'inadequate'
charge on reasonable doubt, a contention which we have found without merit)
'compelled one verdict-- guilty.' Appellant's Brief, p. 7. We disagree. Indeed,
the court's firm instruction that punishment was not to be considered by the jury
and thay any recommendation it may make had 'no weight with me' was proper.
This made it quite clear to any juror inclined to compromise that the verdict
was not to be adulterated by considerations extraneous to the jurors' function.
12
Appellant's contention that he should have been allowed to object to the charge
in the presence of the jury is so wholly without merit that it requires no
comment. United States v. Hall, 200 F.2d 957, 958 (2nd Cir. 1953); Rule 30,
Fed.R.Crim.P.
13
Affirmed.
The search and seizure took place December 15, 1960; trial commenced
December 18, 1961

2
Bacon, Speech 1617, when Justice Hutton was called to the bench of Common
Pleas
The Court, in discussing the government's burden stated:

'The defendant has pleaded not guilty. And you know that under our system he
is presumed to be innocent. And that presumption stays with him until that
moment in your deliberations when you decide that he is guilty beyond a
reasonable doubt. * * *
'And now, a word about the burden of proof, and this is always important in a
criminal case. In told you the defendant is presumed to be innocent. The fact
the he has been accused by a grand jury does not destroy that presumption. The
burden of proof, in the sense of the responsibility of persuading you ladies and
gentlemen, rests upon the government. The quantum or the measure of proof
necessary before you lawfully can find te defendant guilty is referred to as
proof beyond a reasonable doubt.
'Now, by a reasonable doubt I do not mean a positive certainty. Proof beyond a
conceivable doubt cannot be reached in the world of actuality, and neither is a
reasonable doubt a decision arbitrarily reached because a juror had a reluctance
to perform an unpleasant task. Nor is it a disbelief that we have based upon the
natural sympathy that we are supposed to have for one another.
'Reasonable doubt most nearly signifies one which the average person of
ordinary purdence and intelligence has after weighing all the evidence
carefully.'
(Appellant's Appendix, pp. 7-a, 10-a-- 11-a.)

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301 F.

UNITED STATES of America, Appellee,

United States Court of Appeals Second Circuit.

James J. Hanrahan, New York City for appellant.

Appellant attacks his conviction on three principal grounds. First, he asserts

'Ladies and Gentlemen, * * * I suppose by that (note) you mean whether in

'So, would you please retire now.' Tr. p. 224.

December 18, 1961

The Court, in discussing the government's burden stated:

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