586 F.

2d 899
3 Fed. R. Evid. Serv. 1356

UNITED STATES of America, Plaintiff-Appellee,

v.
Daniel Lee RUCKER and Eugene C. Smith, DefendantsAppellants.
Nos. 924, 925, Dockets 77-1478, 1479.

United States Court of Appeals,

Second Circuit.
Argued May 23, 1978.
Decided Sept. 28, 1978.
1

Eugene Welch, Asst. U.S. Atty. (Richard J. Arcara, U. S. Atty., W. D. New

York, Buffalo, N. Y.), for plaintiff-appellee.

Michael R. Wolford, Rochester, N. Y., for defendant-appellant Eugene C.

Smith.

David G. Larimer, Rochester, N. Y., for defendant-appellant Daniel Lee

Rucker.

Before OAKES, Circuit Judge, BLUMENFELD, Senior District Judge,* and

MEHRTENS, Senior District Judge.**
MEHRTENS, Senior District Judge:

The defendants, Daniel Lee Rucker and Eugene C. Smith, appeal from
convictions on a four-count indictment charging Rucker in Count I with
entering a federally insured bank with intent to take by force and violence
money belonging to the bank, in violation of 18 U.S.C. 2113(a) and Section
2, and in Count III charging him with conspiracy to commit bank robbery, in
violation of 18 U.S.C. 371. Count II charged Rucker and Smith with entering
with intent to commit a bank robbery, in violation of 18 U.S.C. 2113(a) and
Section 2, while Count IV charged Rucker and Smith with conspiracy to
commit bank robbery, in violation of 18 U.S.C. 371.

6Finding no merit in their numerous asserted errors, we

7affirm. Smith's Motion for a Separate Trial on
Counts II and IV and Admission of
Rucker's Prior Conviction
8

Smith asserts that it was improper for the trial court to deny his motion for a
separate trial of Counts II and IV of the indictment while Rucker contends that
the admission of evidence of his prior conviction was error.

The four-count indictment arose out of two separate bank robberies. Counts I
and III charged only Rucker with the robbery of, and conspiracy to rob, the
Marine Midland Bank. Counts II and IV charged Rucker and Smith with the
robbery of, and conspiracy to rob, the First National Bank. Some time prior to
trial both defense counsel reviewed the government's file, including the
criminal records of both Rucker and Smith. Three days before trial the
government disclosed its intention to offer in evidence Rucker's prior
conviction for robbery of the same Marine Midland Bank.

10

Some time after the selection of the jury on October 17 and before the start of
testimony on October 24, Smith moved for a separate trial on Counts II and IV,
that is, the First National Bank robbery. He wanted a separation of counts, but
not defendants. Smith was willing to be tried with Rucker on the First National
Bank charges but wanted a severance from Rucker on the Marine Midland
Bank charges. His reason was that he would be prejudiced by the government's
use of Rucker's prior conviction.

11

Smith does not contend, as indeed he could not, that the joinder of the counts
was not permissible under Rule 8, Fed.R.Cr.P. This claim must of necessity be
based upon Rule 14, Fed.R.Cr.P. which empowers the court to grant severance
to a defendant who will be prejudiced by a joinder of defenses or defendants.
The matter is addressed to the discretion of the trial court and a conviction will
be reversed only if the refusal of the trial court to grant relief was a clear abuse
of discretion. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101
(1954); United States v. Aviles, 274 F.2d 179 (2d Cir.), Cert. denied, 362 U.S.
974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Lebron, 222 F.2d
531 (2d Cir.), Cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955).
The burden is upon a moving defendant to show facts demonstrating that he
will be so severely prejudiced by a joint trial that it would in effect deny him a
fair trial. The defendant must demonstrate that he suffered such prejudice as a

result of the joinder, not that he might have had a better chance for acquittal at a
separate trial. United States v. Borelli, 435 F.2d 500 (2d Cir. 1970), Cert.
denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971); United States v.
DeSapio, 435 F.2d 272 (2d Cir. 1970), Cert. denied, 402 U.S. 999, 91 S.Ct.
2170, 29 L.Ed.2d 166 (1971).
12

Smith failed to sustain that burden. The fact that evidence may be admissible
against one defendant but not against others does not require separate trials.
United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), Aff'd, 385 U.S. 293, 87
S.Ct. 408, 17 L.Ed.2d 374 (1966). Rucker's prior conviction would have been
admissible in the First National Bank trial if the severance had been granted
because it tended to show his motive, intent, knowledge, and a plan or design as
a co-conspirator on both banks. in a prosecution for conspiracy an individual
defendant is not entitled to a separate trial upon the ground that he would be
unable to obtain a fair trial in the company of defendants who had pled guilty to
a separate indictment and also with a defendant who had a criminal record. The
court in United States v. Stracuzza, 158 F.Supp. 522 (S.D.N.Y.1958), held that
"These facts alone are not sufficient to warrant the granting of a severance,"
Aff'd sub nom. United States v. Schaffer, 266 F.2d 435 (2d Cir. 1959),
Affirmed, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). In United States
v. Robinson, 503 F.2d 208 (7th Cir. 1974), the court, in passing upon a similar
contention, stated:

*13* * Robinson's allegation that the testimony relating to Taylor's criminal record
and narcotics activity prejudiced him is not sufficient to make out a showing of
prejudice warranting severance. * * *
14

See also: United States v. Campanile, 516 F.2d 288 (2d Cir. 1975); United
States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978); United States v. Brozyna,
571 F.2d 742 (2d Cir. 1978); United States v. Hayes, 553 F.2d 824 (2d Cir.
1977); United States v. Corr, 543 F.2d 1042 (2d Cir. 1976), holding that
evidence as to a prior bank robbery is plainly admissible to show a Modus
operandi; United States v. Viruet, 539 F.2d 295 (2d Cir. 1976); United States v.
Cavallino, 498 F.2d 1200 (5th Cir. 1974).

15

Smith's argument is without merit. Under a long line of cases and under new
Fed.R.Evid. 404(b) the court did not abuse its discretion. There was a sufficient
parallel between the acts charged in the indictment and Rucker's prior
conviction so that it had real probative value regarding Modus operandi and
Rucker's willingness and intent to enter into the conspiracies. See United States
v. Bermudez, 526 F.2d 89 (2d Cir. 1975). Rucker's prior conviction would be
admissible as to Rucker on both bank robberies even if the severance had been

granted and hence Smith cannot now complain. See United States v. Turbide,
558 F.2d 1053, 1061 (2d Cir. 1977).
16

The district judge carefully weighed the probative value against the danger of
unfair prejudice and admitted the evidence. His exercise of discretion was not
arbitrary or irrational, the standard adopted in this circuit when reviewing a trial
court's decision under Rule 403 Fed.R.Evid. United States v. Robinson, 560
F.2d 507 (2d Cir. 1977). The trial judge adequately protected Smith with
cautionary instructions to the jury during opening argument, also when the
evidence was actually introduced, and in his final charge to the jury.

17

On this record containing substantial evidence of Smith's guilt, we are

convinced beyond a reasonable doubt that the jury would have reached the
same verdict had Smith been tried separately with Rucker on Counts II and IV
and, therefore, his trial with Rucker on all counts was not error. Cf. United
States ex rel. Ross v. LaVallee, 448 F.2d 552 (2d Cir. 1971). We further hold
the trial court did not err in admitting evidence of Rucker's prior conviction.

The Court's Instructions

18

Smith's and Rucker's contention that the trial court's instruction on the interest
of the defendant was reversible error because it did not have balancing
language to the effect that "A defendant's vital interest in the outcome of the
trial was not inconsistent with the ability to render truthful testimony" is not
sufficient to present reversible error. Their reliance upon United States v.
Martin, 525 F.2d 703 (2d Cir. 1975) and United States v. Floyd, 555 F.2d 45
(2d Cir. 1977) is misplaced. In Martin the court's instruction containing that
language was approved. In Floyd this court found an instruction similar to that
here given to be adequate, although the opinion did state that it was preferable
to balance such an instruction with a charge that "A defendant's vital interest in
the outcome of his trial is not inconsistent with the ability to render truthful
testimony." At no time have we ever specifically defined a required instruction
on the interest of the defendant to be considered by the jury in evaluating his
credibility.

19

Aside from the failure of both counsel to object to the charge as required by
Fed.R.Cr.P. 30, pointing out their specific objection to the court's leaving out
the words "that his vital interest is not inconsistent with his ability to render
truthful testimony," the instruction as given by the court was in accordance
with those which have repeatedly been approved by us. United States v. Martin,
supra; United States v. Tyers, 487 F.2d 828 (2d Cir. 1973); United States v.
Sclafani, 487 F.2d 245 (2d Cir.), Cert. denied, 414 U.S. 1023, 94 S.Ct. 445, 38

L.Ed.2d 313 (1973); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966);
United States v. Sullivan, 329 F.2d 755 (2d Cir.), Cert. denied, 377 U.S. 1005,
84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964). The trial court's instruction on the
credibility of a defendant as a witness was not improper, and, particularly in the
context of the entire charge, was not prejudicial, unfair or misleading.
20

Both Smith and Rucker contend that the court's instruction on fabrication of
evidence as consciousness of guilt was reversible error. Again, counsel objected
only to the necessity for giving this charge and not to the specific wording that
the court used in the charge. The charge was appropriate in view of the
evidence that Smith had presented a false alibi and that Rucker attempted to
bribe a witness to appear in court and give false testimony in his behalf. The
trial judge here instructed the jury that the defendants' statements could be
Used in determining the defendants' guilt or innocence; more specifically, that
the jury could consider "whether this circumstantial evidence points to a
consciousness of guilt." There was no error in giving this instruction.

21

Smith also contends that it was reversible error for the court to have failed to
give a specific instruction on an immunized witness' testimony. The trial court
did, however, give an instruction as to an accomplice's testimony. Under the
facts here, the defendants were not entitled to both an immunized witness
instruction and an accomplice instruction, and have no complaint where the
charge requested and the charge given are in substance identical.

22

Smith, without citing any authority, asserts that he was entitled to an instruction
charging that if the jury views the evidence in the case as reasonably permitting
either of two conclusions, one of innocence, the other of guilt, the jury should
adopt the conclusion of innocence. The decisions in this circuit have
established that a defendant is not entitled to this type of instruction. United
States v. Turbide, supra; United States v. Siragusa, 450 F.2d 592 (2d Cir. 1971).

23

The defendants' objections to the court's instructions are without merit.

Sufficiency of Evidence against Smith

24

Smith claims that the evidence was insufficient to sustain his conviction. It is
not for this court to weigh the evidence or to determine the credibility of
witnesses; the verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the government to support it.
Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

25

The evidence demonstrated that Smith actually came to Brown's house that

25

The evidence demonstrated that Smith actually came to Brown's house that
morning to get Brown to rob the bank; that Smith stored the proposed robbery
gun; that Smith prepared the demand note and placed it in an envelope; that
Smith walked the bicycle that Brown was to use as a getaway vehicle, past the
bank that was to be robbed; that Smith participated in the planning of the
robbery; that Smith received some of the proceeds of the robbery from Brown
at the Gold Circle Store after the robbery; that Smith was seen counting the
money that afternoon in the basement of his home. In addition, Smith attempted
to present a false alibi, asserting that on the day of the First National Bank
robbery he went to see his drug counselor, whereas the drug counselor
specifically testified that Smith did not see him on either September 28 or
September 29, as Smith had testified he did.

26

Upon reviewing the entire record, we are left with no question but that there
was ample evidence before the jury upon which to find Smith guilty.

Sufficiency of the Evidence on Specific Intent

27
28

Rucker argues that the evidence was insufficient to convict him on Count I,
entering the Marine Midland Bank with intent to commit a felony, that is, bank
robbery, in violation of 18 U.S.C. 2113(a) and Section 2. He asserts that the
evidence was insufficient because on cross-examination defense counsel got
the accomplice Roberto Rivera to say that he merely entered the bank out of
fear of Rucker and did not want to take any money from the bank; that,
therefore, since Rivera would not admit having the intent to rob the bank when
he entered it, Rucker cannot be convicted of aiding and abetting that entry with
intent.

29

There was ample evidence showing that both Rucker and Rivera had the
specific intent that Rivera rob the bank when he entered it. Even if Rivera did
not have the specific intent to rob the bank, Rucker clearly did and, therefore,
he is criminally responsible for having someone else do the actual act of
entering the bank, while Rucker had the intent that that person rob the bank.
The critical factor was Rucker's intent and the evidence clearly demonstrated
that Rucker intended that when Rivera entered that bank he would rob it. The
evidence was ample for a jury to convict Rucker under Title 18, U.S.C. Section
2(a) or 2(b).

30
Section
2(b) merely "removes all doubt that one who puts in motion or assists in the
illegal enterprise or causes the commission of an indispensable element of the
offense by an innocent agent or instrumentality is guilty." . . . The statute makes it
"unnecessary that the intermediary who commits the forbidden act have a criminal
intent." United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976).

Denial of Daily Copy of Transcript

31

There is no merit in Smith's contention that he was denied a right to a fair trial
because the court refused his request for a daily copy of transcript of the
testimony of two accomplices, Rivera and Brown.

32

Defense counsel were assigned pursuant to 18 U.S.C. 3006A(a), which clearly

vests the district court with discretion to decide whether such things as daily
copy are necessary for an adequate defense. The defendant has cited no
authority in support of his contention. In United States v. Kaufman, 393 F.2d
172, 176 (7th Cir. 1968), apparently the only case dealing with this matter, the
court said:

33
Appellant
contends the trial court violated his Sixth Amendment rights by denying
his motion for preparation of a daily transcript of the evidence for his use during the
trial. He cites no case recognizing such a right, and we have discovered none.
Appellant and his attorney were, of course, present throughout the trial. We find no
constitutional deprivation here.
34

This was a relatively short trial, lasting only four days. Defense counsel had all
of the accomplice witnesses' prior testimony and statements, and diligently
exploited inconsistencies therein in cross-examination and summation. Smith
has not shown any prejudice suffered as a result of the denial of the daily copy.
The refusal of the trial court to order daily copy for the defendants was not an
abuse of discretion, nor did it violate the defendants' right to a fair trial.

Admission of Rene Rivera's Hearsay Testimony

35
36

Rucker asserts that the trial court erred in allowing Rene Rivera to testify about
his conversation with his brother Roberto Rivera, a co-conspirator.

37

The testimony challenged is the statement of the witness Rene Rivera that "he
(Roberto Rivera) told me Danny (Rucker) had told him to put the clothes in a
bag and throw them out." The defendants contend that because this statement
repeats a prior statement, the first statement, and also the second statement
reporting it, are inadmissible hearsay. The inner statement, repeated to the
witness Rene by Roberto, is "put the clothes in a bag and throw them out." This
statement was properly offered against Rucker as an admission of a conspirator.
The second statement is "Danny (told me) to put the clothes in a bag and throw
them out."

38

The government contends that this was admissible because under Fed.R.Evid.

38

The government contends that this was admissible because under Fed.R.Evid.
801(d)(2)(E) which provides that A statement is not hearsay if the statement is
offered against a party and is a statement by a coconspirator of a party during
the course (of the conspiracy) and in furtherance of the conspiracy. The
statement is offered against a party, the defendant Rucker, and is a statement by
a co-conspirator, Roberto Rivera.

39

The specific objection by counsel was that Roberto Rivera had withdrawn
himself from any conspiracy prior to the statement. Although there is no merit
to the specific objection as such, two preliminary determinations made by the
trial judge under Rule 104(a) Fed.R.Evid. must be examined.

40

The first is whether the statement was made during the course of the
conspiracy to rob the bank, and the second is whether the statement was made
in furtherance of the conspiracy.

41

Once a conspiracy is shown to exist, which in its nature is not ended merely by
lapse of time, it continues to exist until consummated, abandoned or otherwise
terminated by some affirmative act. Every act in furtherance of the conspiracy
is regarded in law as a renewal or continuance of the unlawful agreement, and
the conspiracy continues so long as overt acts in furtherance of its purpose are
done. Perry v. State, 23 Ill.2d 147, 177 N.E.2d 323, Cert. denied, 369 U.S. 868,
82 S.Ct. 1035, 8 L.Ed.2d 86 (1962); United States v. Green, 523 F.2d 229 (2d
Cir. 1975), Cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976). In
Krulewitch v. United States,336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949),
the court restricted out-of-court statements of one conspirator against another
conspirator to those statements made during the time the "central aim" of the
conspiracy existed. Even though a crime may have been committed, the
conspiracy does not necessarily end; it continues until its aim has been
achieved, it has been abandoned, or otherwise terminated. The "central aim" of
the conspiracy was to rob the bank. Although Roberto Rivera entered the bank,
he became frightened and fled the bank without actually presenting the demand
note to the teller. This abortive attempt, however, did not terminate the basic
conspiracy to rob the bank.

42

Defendant's reliance upon United States v. Floyd, 555 F.2d 45 (2d Cir. 1977), is
misplaced. In that case the central criminal purposes of the conspiracy, unlike
here, had been attained by the successful robbery of the bank and this court
held that a statement thereafter made by a co-conspirator to a non-conspirator
was not admissible because the conspiracy had terminated. The court also held
that the admission of the hearsay statement was harmless error. Here the central
criminal purpose of the conspiracy to rob the bank had not been attained but

only temporarily frustrated.

43

Prior to the testimony of Rene Rivera, Roberto Rivera, a co-conspirator,

testified that on May 12, 1976 Danny Rucker convinced Roberto to go into the
Marine Midland Bank and present the teller with a demand note. When Roberto
panicked on May 12th and left the bank, he went to Danny Rucker's house
where he had a conversation with Rucker about why the bank robbery attempt
did not succeed. Then, on May 14, 1976 Roberto testified that Danny Rucker
convinced him to try the bank robbery a second time. Roberto testified that
Rucker then gave him a black leather jacket, a white hat and sunglasses to wear
in the bank robbery and that Danny Rucker also gave Rivera what looked like a
gun to use in the bank robbery. On May 14, 1976 Roberto went into the bank
with the jacket, hat, sunglasses, gun and demand note that Rucker had given
him. Once inside Roberto became frightened and fled the bank without actually
presenting the demand note to the teller. When Roberto fled the bank he ran to
his own apartment where Danny Rucker telephoned him soon after he arrived.
Roberto related the instructions that Danny Rucker gave him as to the
disposition of the clothes and items that Rucker had previously given to
Roberto to use in the bank robbery. Roberto then said that he told his brother
Rene to throw these clothes in the incinerator. This testimony established to the
satisfaction of the trial court that there was a conspiracy between Rucker and
Roberto Rivera and that Roberto's statements to his brother Rene Rivera were
statements made during the course of that conspiracy in furtherance of that
conspiracy.

44

That statement, coming within minutes after the attempted robbery, was
sufficient to support the trial judge's determination that the conspiracy had not
been abandoned and was ongoing at that time.

45

As to the second question, whether or not the statement was made in

furtherance of the conspiracy to rob the bank, the statement was a request for
aid. Rene Rivera testified that immediately after the statement was made he
took the clothes from Roberto and threw them in the incinerator. From this act
it could be inferred that the statement by Roberto Rivera was made within
minutes after the aborted robbery attempt to gain Rene Rivera's help in
destroying the clothes.

46

We find that the statement was not "crucial or devastating" to Rucker's case.
Roberto Rivera's testimony describing in thorough detail both the planning and
the robbery was corroborated by other evidence. Roberto's statements to Rene
concerning the destruction of the clothes was in furtherance of the conspiracy to
rob the bank. It was made in furtherance of and during the course of the

conspiracy, was supported by sufficient independent evidence of conspiracy,

and so was properly admitted under Rule 801(d)(2)(E). The statements by Rene
were cumulative, repetitive, and corroborated to such a point that we cannot
believe that the verdict on the rights of the parties could have been appreciably
affected by this reported snatch of conversation.
47

A complete answer to Rucker's contention, however, is that the error (assuming

error was made in the admission of the statement) was harmless. This is a
proper case for the application of Rule 52(a) of the Fed.R.Cr.P. The record
clearly and conclusively reveals the guilt of Rucker, and we cannot conceive
how this one admission could possibly influence the jury to reach an improper
verdict. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208
(1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284
(1969); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593
(1953); United States v. Floyd, supra; United States v. Chieppa, 241 F.2d 635
(2d Cir.), Cert. denied, 353 U.S. 973, 77 S.Ct. 1057, 1 L.Ed.2d 1136 (1957);
Vachuda v. United States, 21 F.2d 409 (2d Cir. 1927).

Denial of Speedy Trial

48

Rucker contends that he was denied his right to a speedy trial under the Speedy
Trial Act, 18 U.S.C. 3161 Et seq., the Sixth Amendment, Rule 48
Fed.R.Cr.P., and the Western District's Plan for Prompt Disposition of Criminal
Cases.

49

The defendant's claim under Rule 48(b) Fed.R.Cr.P. is coterminous with his
Sixth Amendment claim. See United States v. Singleton, 460 F.2d 1148 (2d
Cir. 1972), Cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973);
United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973).

50

The indictment was filed against Rucker December 2, 1976, and he was
arraigned December 6, 1976. The trial began October 17, 1977, slightly less
than 11 months after indictment, at which time a jury was selected. After that
date Rucker's counsel moved to dismiss the case for lack of a speedy trial. The
district judge, although noting that the motion was not timely made, assumed
for the sake of argument that it was timely made and conducted a hearing.
Thereafter he dictated an opinion order using the balancing test in Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), denying the
motion. The delay was caused by preparation for trial, discovery on both sides,
and a heavy court docket. This is not a case where the government's lengthy
inexplicable delay in the face of demands for a speedy trial was so offensive as
to offend the Sixth Amendment. Neither is it a case where the records show

any actual prejudice to the defendant as a result of the delay. The institutional
delay was not deliberate and did not result from governmental misconduct or
negligence. The lapse of time was not excessive, particularly where only a few
days imprisonment was involved. Not until the trial had started did the
defendant assert his desire for a speedy trial, which he now urges has been
thwarted. Under paragraph 11(c) of the Western District's Plan for the Prompt
Disposition of Criminal Cases, the failure of the defendant to move for
dismissal prior to trial constituted a waiver of the right to dismissal. A similar
waiver provision is provided in the Speedy Trial Act, 18 U.S.C. 3162(a)(2):
"Failure of the defendant to move for dismissal prior to trial * * * shall
constitute a waiver of the right to dismissal under this section." There was
therefore no error in the district court's denial of Rucker's motion to dismiss the
case for denial of a speedy trial.
51

The convictions of Rucker and Smith are affirmed.

OAKES, Circuit Judge (concurring):

52

I concur in the court's thorough opinion. I write only with respect to the general
objection to that portion of the charge relating to credibility generally and the
interest of the defendant particularly. To my mind such a charge, absent the
balancing language approved in United States v. Martin, 525 F.2d 703 (2d
Cir.), Cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410 (1975), and
suggested as "preferable" in United States v. Floyd, 555 F.2d 45, 47 n.4 (2d
Cir.), Cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977), to the
effect that a defendant's vital interest in the outcome of his trial is not
inconsistent with his ability to render truthful testimony, is erroneous,
prejudicial, and, in a close case hinging on defendant's credibility, devastating.
Here, however, defense counsel made no objection specifically calling the trial
judge's attention to the omission of the balancing language; and because our
court in Floyd, supra, used language that was only precatory in nature, I find it
difficult to hold such omission reversible error here. Because Judge Platt and a
few other district judges have evidently used the charge given here, I would
simply recall attention to the preferability language of the note in Floyd, supra.
Speaking only for myself, I would not be adverse, as to trials occurring
hereafter, to reversal on the basis of such an omission. I am reminded of Judge
Frank's view that precatory language of the court of appeals condemning error
that nevertheless results in affirmance is "purely ceremonial" in nature. United
States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.) (Frank, J.,
dissenting), Cert. denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946).

*
**

Sitting by special designation from the District of Connecticut

Sitting by special designation from the Southern District of Florida