United States v. Bates Baird Witt

648 F.2d 608 UNITED STATES of America, Plaintiff-Appellee, v. Bates Baird WITT, Defendant-Appellant. No. 80-1489. United States Court of Appeals, Ninth Circuit. Submitted May 6, 1981. Decided June 2, 1981. William Choquette, Anchorage, Alaska, for defendant-appellant. James L. Swartz, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff-appellee. Appeal from the United States District Court for the District of Alaska. Before WRIGHT and ANDERSON, Circuit Judges, and THOMPSON, * Senior District Judge. EUGENE A. WRIGHT, Circuit Judge: 1 Witt contends that his conviction for knowingly making a false statement to a federally insured credit union should be reversed because (1) the district court failed to define "reasonable doubt" and the "presumption of innocence" in its jury instructions, and (2) the evidence was insufficient to convict. We affirm. 2 He made two loans from the Alaska Federal Credit Union in 1977 and 1978. He represented that he owned two computers and pledged them as security. 3 He was charged with two counts of making false statements to a federally insured credit union, in violation of 18 U.S.C. § 1014 . The indictment alleged that he did not own the two…

Witt contends that his conviction for knowingly making a false statement to a federally insured credit union should be reversed because (1) the district court failed to define “reasonable doubt” and the “presumption of innocence” in its jury instructions, and (2) the evidence was insufficient to convict. We affirm.

He made two loans from the Alaska Federal Credit Union in 1977 and 1978. He represented that he owned two computers and pledged them as security.

He was charged with two counts of making false statements to a federally insured credit union, in violation of 18 U.S.C. § 1014 . The indictment alleged that he did not own the two computers given as security. The jury convicted Witt of the second count, which related to the 1978 loan. JURY INSTRUCTIONS

It is contended that the district court erred in refusing to adopt the defendant’s proposed instruction concerning reasonable doubt and the presumption of innocence. In the alternative, Witt argues that the instruction given on these principles constituted reversible error.

The court gave the following:

The court did not attempt to define reasonable doubt or to describe the presumption of innocence.

The reasonable doubt…

concurring:

I concur in the result reached in Judge Wright’s opinion largely because a review of the record affirmatively indicates that defendant had a fair trial and was represented by able counsel. I would not adopt a per se rule requiring reversal simply because of the failure of a trial judge to define reasonable doubt in the precise manner suggested by appellant’s counsel.

No assertion is made by appellant’s counsel that he was in any way restricted or obstructed during his closing argument in arguing the reasonable doubt standard and an amplified definition to the jury. The record here does in fact reflect that counsel did fully and accurately expound on the subject in his closing argument. This is not to say that argument on a subject not forti *612 fied by a proper instruction will cure error where a proper instruction is required, but was not given. See United States v. Bernard, 625 F.2d 854, 857 (9th Cir. 1980). It is, however, a proper factor to consider in this case where an essential instruction was given, but is asserted to be insufficiently elaborate.

Furthermore, by concurring, I do not approve of nor agree with the thought expressed by some judges and scholars…