APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 78-00268)
Before Adams, Van Dusen and Hunter, Circuit Judges.
This is an appeal by Frank Pine, a branch manager of the Bank of West Jersey, from a jury verdict finding him guilty on one count of conspiring to travel or use facilities in interstate commerce with the intent to receive bribes in violation of 18 U.S.C. § 371 (1976) and on one count of traveling or using facilities in interstate commerce with the intent to receive bribes in violation of 18 U.S.C. § 1952 (1976). The trial judge sentenced Pine to three years in prison and fined him a total of $10,000. The most serious issue which Pine raises on appeal is whether the trial judge's charge to the jury deprived him of his constitutional right not to be convicted except upon proof beyond a reasonable doubt. We conclude that the judge's charge to the jury did not deprive Pine of his constitutional rights. Finding no merit in his other contentions, we affirm.
Recognizing that a criminal conviction may result in the loss of personal liberty and will surely result in the stigmatization of the accused, the Supreme Court has held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). The requirement of proof beyond a reasonable doubt is a necessary and fundamental part of our system of criminal justice. Without such a requirement, the state would be free to impose its most severe sanctions when reasonable doubt remained as to the guilt or innocence of a person accused of a crime. In a system like ours which places great importance in the rights of the individual, such a result would be intolerable. Moreover, to allow an individual to be convicted of a crime when reasonable doubt remained as to that person's guilt or innocence, would seriously undermine the moral force and integrity of our criminal law. Therefore, it is with the greatest care and concern that we examine appellant's contention that the trial judge's charge to the jury deprived him of his constitutional right not to be convicted except upon proof beyond a reasonable doubt.
In his charge to the jury, the trial judge instructed the jurors as follows:
Fundamentally, this case, as most cases do, involves the question of fact. The basic question is whether the Government's witnesses are telling the truth or whether the defendants and their witnesses are telling the truth. Your basic task is to evolve the truth.
Soon thereafter, he additionally instructed the jury:
In this case, as in every criminal case, a defendant is presumed to be innocent until he is proved to be guilty. Thus a defendant, although accused, begins the trial with a clean slate, so to speak, with no evidence against him. This presumption of innocence continues until overcome by proof establishing guilt beyond a reasonable doubt. The burden of proving every essential element is upon the Government and always upon the Government. That burden never shifts but rests upon the Government throughout the entire case. It is not required that a defendant prove his innocence. The law never imposes upon a defendant the burden or duty of calling any witnesses or producing any evidence. If there be a reasonable doubt whether the defendants are guilty, they are to be declared not guilty.
In recent years the Court of Appeals for both the First and Fifth Circuits have expressed their disapproval of jury instructions which, like the first jury instruction set out in this opinion, tend to dilute and thereby impair the constitutional requirement of proof beyond a reasonable doubt. In United States v. Oquendo, 490 F.2d 161 (5th Cir. 1974), the Fifth Circuit held that the district court "committed reversible error by repeatedly casting the jury's ultimate determination of whether to convict or acquit in terms of a mere credibility choice between the informer and appellant." 490 F.2d at 165. Although the trial judge in this case issued such an instruction only once, there can be no doubt that the meaning of the instruction runs counter to the requirement of proof beyond a reasonable doubt. In United States v. Guest, 514 F.2d 777 (1st Cir. 1975), the First Circuit upheld a conviction where the district court issued a single jury instruction which framed the jury's determination in terms of an assessment of credibility. However, the court cautioned that "(t)o discuss credibility specifically in terms of choosing between government witnesses and a ...