United States v. Garrett

574 F.2d 778
CourtCourt of Appeals for the Third Circuit
DecidedMarch 28, 1978
DocketNos. 77-1780 to 77-1782
StatusPublished
Cited by36 cases

This text of 574 F.2d 778 (United States v. Garrett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Garrett, 574 F.2d 778 (3d Cir. 1978).

Opinion

OPINION

HUNTER, Circuit Judge:

In this case, appellants challenge the trial judge’s jury instruction on intent in their joint trial for mail fraud, 18 U.S.C. § 1341 (1970). They contend that part of the charge impermissibly shifted the burden of proof on intent from the government to the [780]*780defendants. Our review of the trial judge’s charge convinces us that no reversible error was committed. We affirm.

I.

The facts will be outlined only briefly. The defendants are Arthur Garrett, food service director at Slippery Rock State College; Fiesta Foods, Inc., a food supply company; and Angelo Morini, the president of Fiesta Foods. They were charged with using the mails in furtherance of a scheme to falsify bids to the college in order to ensure that Fiesta would be awarded supply contracts for part of Slippery Rock’s food service.

At trial, the government introduced evidence that Garrett had obtained a financial interest in Fiesta Foods. The college’s purchasing agent testified that .purchases of perishable foods were to be made after competing bids were solicited, if the product sought was available from more than one source. The evidence indicated that Garrett had instructed food services employees to solicit the required multiple bids for pizzas from defendant Morini, with the result that Fiesta Foods was awarded the pizza contracts. Representatives of other food companies, which had been listed on college purchase orders as participating in the bidding, testified that the bids made on behalf of their companies for the pizza contract were not authorized.

Evidence of the use of the mails for submitting contracts and receiving payments for supplies was introduced by the government and not disputed by defendants. In its closing, the government contended that the evidence presented demonstrated that defendants engaged in a scheme to defraud the college and used the mails to perpetrate the scheme. The jury found each defendant guilty of eight counts of mail fraud.

II.

The defendants’ contentions in this appeal are directed solely at the following portion of the trial judge’s charge to the jury:

As a general rule it is reasonable to infer that a person intends all the natural and probable consequences of an act knowingly done or knowingly omitted. So unless the evidence of a case leads you to a contrary conclusion you may draw the inference and find that the accused intended all the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have been expected to result from an act knowingly done or knowingly omitted by the accused.

Counsel for defendants objected to this portion of the charge but were overruled by the trial judge.

The thrust of defendants’ argument is that by instructing the members of the jury that they may infer the specific intent to defraud element of the crime of mail fraud from acts by the accused “unless the evidence leads [the jury] to a contrary conclusion,” the trial judge shifted the burden onto defendants to introduce evidence of their lack of intent to defraud. Further, defendants argue that the instruction is inconsistent with other elements of the charge placing the burden of proving all elements of the crime on the government.

The Fifth Circuit has reviewed the instruction under consideration here numerous times over the last fifteen years. In Mann v. United States, 319 F.2d 404 (5th Cir. 1963) cert. denied 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964), the court held that the trial judge’s use of the instruction in a prosecution for wilful evasion of income tax payments constituted plain error. In Mann, the court stated:

When the words “So unless the contrary appears from the evidence” were introduced [after the first sentence of the instruction], the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when [781]*781a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.

319 F.2d at 409. See also United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977); United States v. Driscoll, 454 F.2d 792 (5th Cir. 1972); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970); South v. United States, 412 F.2d 697 (5th Cir. 1969).

Although Mann seemed to indicate that use of the charge in subsequent criminal cases would constitute reversible error per se, later Fifth Circuit cases recognized factual situations in which a conviction would not be reversed even though the “Mann instruction” was given. First, in Helms v. United States, 340 F.2d 15 (5th Cir. 1964), cert. denied 382 U.S. 814, 86 S.Ct. 33, 15 L.Ed.2d 62 (1965), another tax evasion case, the court refused to reverse a conviction after a jury trial in which the Mann instruction was given. In that case, the government introduced two sets of records, one of which was false and from which defendant’s tax returns were prepared. The appeals court noted that the jury’s determination of whether the defendant had prepared the two sets of books — a matter of objective conduct — was dispositive of his criminal intent. The Mann decision was distinguished on the ground that the jury in that case, in which intent could not be determined from objective conduct alone, could have been misled far more easily by the offensive language in the charge. See also United States v. Durham, 512 F.2d 1281 (5th Cir.) cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975).

Another factual situation in which use of the Mann charge was determined not to constitute reversible error is found in United States v. Jenkins, 442 F.2d 429 (5th Cir. 1971). Although the same language was used in Jenkins as in Mann, the court found that curative instructions immediately following the Mann language vitiated any harmful effect that the challenged instruction might have on the jury.1 See also United States v. Roberts, 546 F.2d 596 (5th Cir.), cert. denied 431 U.S. 968, 97 S.Ct. 2927, 53 L.Ed.2d 1064 (1977); United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976);

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Bluebook (online)
574 F.2d 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garrett-ca3-1978.