Kalodner, Staley and Aldrich,*fn* Circuit Judges. Kalodner, Circuit Judge (dissenting). Freedman, Circuit Judge (dissenting). On Rehearing: Hastie, Chief Judge, and Kalodner, Staley, Freedman, Seitz, Van Dusen, Aldisert and Stahl, Circuit Judges.
The defendant Turner was charged in two counts under 14 Virgin Islands Code § 834(2), with defrauding storekeepers in St. Thomas, or the American Express Co., by the unauthorized use of a credit card issued by the latter to one Cain. Briefly, the government's evidence showed that Cain used his American Express card in San Juan, Puerto Rico on February 26, and later discovered it to be missing. He immediately notified the company. Thereafter, but before American Express had sent out its next bulletin to dealers, defendant, in St. Thomas, using Cain's card and representing himself to be Cain, bought a $600 watch on March 10, and $200 in perfumery on March 11. The following day he sought to buy jewelry in Puerto Rico. Evidently having overheard the jeweler telephone American Express before completing the sale, defendant ran out the door. The storekeeper pursued, and a policeman effected the capture. Subsequently an abandoned Hertz car was discovered containing a suitcase which opened by a key (a by no means simple key) found in the possession of the defendant. The car had been rented in the name of another credit card holder, whose card was shown to have been in the possession of an individual who had accompanied the defendant when he made his purchases in St. Thomas. In the suitcase were goods corresponding to defendant's St. Thomas purchases, and paper bags from one of the stores. Defendant offered no defense, and was found guilty.
On this appeal defendant complains of the government's opening, of a portion of the charge, and of the inadequacy of his trial representation. We will deal with the last point first.
Except in one particular, our examination of the record evokes no serious criticism of counsel's conduct. Only too clearly, the government's case gave him nothing to work with. Counsel is not to be condemned for not tilting with windmills. However, he did fail to make a number of reasonably possible objections. For reasons peculiar to this case we overlook these omissions, and consider these now-asserted errors.
The government's opening was not what, in our opinion, an opening should be. The purpose of an opening is to give the broad outlines of the case to enable the jury to comprehend it. It is not to poison the jury's mind against the defendant, and it is certainly not to recite items of highly questionable evidence. In the present case, having formally complained against the defendant for making two charges on the credit card totalling $800, the government in its opening informed the jury that, using Cain's card, the defendant "made various charges in various parts of the United States, Puerto Rico, and the Virgin Islands * * *. There was a total of more than $4,000 in fraudulent charges * * *. In the Virgin Islands alone there was a total of nine charges totalling $2,244.27."
The government claims that such evidence was admissible as proof of a course of conduct to show wrongful intent. We have considerable question; this would not seem a case of ambiguity. Cf. United States v. Kirkpatrick, 6 Cir., 1966, 361 F.2d 866; United States v. Prince, 3 Cir., 1959, 264 F.2d 850. If defendant was the user of a credit card that did not belong to him, his wrongful intent would seem inevitable. Hence reference to other occasions cast no additional light, but would merely serve to prejudice the jury by indicating other crimes. Government of the Virgin Islands v. Oliver, 3 Cir., 1966, 360 F.2d 297. But quite apart from this, admissibility of the other occasions presupposes that defendant was the one who made the other purchases. All the government offered to support its opening was that, on the American Express records, charges in the amount asserted had been made against the card. Instead of this evidence adding probative weight to the case against defendant, it assumed, rather than proved, that defendant had been the one to use the card, the essential question at issue.
During oral argument government counsel frankly conceded what we had already inferred, that these other charges had not been proceeded upon because the identification evidence with regard to them was unsatisfactory. If it could not be proved that defendant effected these charges, they had no place in the case. The court's exclusion of the government offer of proof of other unauthorized charges against the card was clearly correct, and by the same token the government's opening was unsupported, and hence improper. Furthermore, the government had good reason to know it was unsupported.
Only with great hesitation do we find errors of this magnitude to be nonprejudicial. The court's exclusion of the proffered evidence in the presence of the jury and its general charge not to regard statements of counsel as evidence, helped, but it may be questioned whether this was enough to offset the effect of the opening. A jury may not easily forget or overlook what it has been told by a government representative, particularly in the absence of more specific directions to do so. However, in this case we find the government's evidence against this defendant so overwhelming that it is difficult to see how an unfulfilled statement that there was more could have made any difference. On the evidence introduced we cannot see how any jury could have failed to find the defendant guilty. Under these exceptional circumstances, we will not hold the over-ambitious opening to have been prejudicial error. See Berger v. United States, 1935, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314, citing Fitter v. United States, 2 Cir., 1919, 258 F. 567; cf. Chapman v. State of California, 1967, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705.
The matter of the charge may be briefly dealt with. The paragraph now objected to was at best ambiguous and confusing. At worst, it was inaccurate. Much of it was not relevant to the case however interpreted. Nonetheless, the charge must be viewed as a whole. Harris v. United States, 1 Cir., 1966, 367 F.2d 633, cert. denied 386 U.S. 915, 87 S. Ct. 862, 17 L. Ed. 2d 787. So viewed, we think the issues were adequately and properly presented. The dissent's criticism of the charge really goes to the assumption that unless defendant knew he was violating some statute he may have thought he was guilty of no crime. We find it inconceivable that defendant thought he was personally going to pay for the goods himself. While the dissent speaks of a time interval, it should make no difference whether defendant stole the card directly from Cain, was far down in the chain of "title," or was a mere finder, or who he thought was ultimately going to be the loser; in no circumstance would he not be larcenous minded.
We mention briefly certain other matters considered important by the dissent. There was nothing singular or improbable about the hearsay evidence. Defendant was represented by experienced counsel and we have no reason to assume that he believed it untrue, or to be otherwise unprovable. Our concession that we would not invoke the plain error rule does not go to the extent that it need not appear that the error was prejudicial. Nor can we agree that the fact defendant refused to make an in custody statement was "expressly solicited" in the sense suggested. Rather, the witness was asked whether, when interviewed, the defendant made a statement, to which the witness replied that he did not, except to admit his identity. This last was certainly a relevant piece of evidence. While it might have been better to have asked only for the affirmative admission, we see no harm in the witness having volunteered that when he asked if the defendant had anything to say he prefaced it with the remark that he had told the defendant he did not need to answer. Rather, this took the sting out of it.
If the purpose of reversal is to criticize prosecuting counsel for his opening, certainly criticism is due. We believe, however, that the test must be some suggestion of a possible miscarriage of justice, and we see none.
We do have one possible reservation. A ten year sentence for larceny of merchandise worth under $1000, absent some special considerations, seems to us high. While we have no power to review sentences and have not seen the presentence report, we are led to wonder whether the evidence the government was unable to develop at the trial found itself in the sentencing proceedings or the judge's mind. cf. LeBlanc v. United States, 1 Cir., 1968, 391 F.2d 916. We suggest that within sixty days of receipt of mandate the defendant move for a reduction of sentence so that the district court may have an opportunity to reconsider this matter.