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386 F.

2d 29

Raymond E. McMILLEN, Jr., Defendant, Appellant,

UNITED STATES of America, Appellee.
Douglas GRUCHY, Defendant, Appellant,
UNITED STATES of America, Appellee.
Nos. 6823, 6824.

United States Court of Appeals First Circuit.

Nov. 28, 1967.

Charles M. Burnim, Boston, Mass., with whom F. Lee Bailey, Boston,

Mass., was on the brief, for appellant Raymond E. McMillen, Jr.
appellant Douglas Gruchy.
William J. Koen, Asst. U.S. Atty., with whom Paul F. Markham, U.S.
Atty., and Edward J. Lee, Asst. U.S. Atty., were on the brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit
COFFIN, Circuit Judge.

These are two appeals from judgments of conviction for bank robbery
following jury verdicts. Both appellants were found guilty as principals of
robbing a federally insured bank at Brockton, Massachusetts in violation of 18
U.S.C. 2113(a), and of conspiring to rob such bank in violation of 18 U.S.C.
371. In addition, appellant McMillen was found guilty, as a principal, of bank
robbery by use of a dangerous weapon. 18 U.S.C. 2113(d). Named as coconspirators and defendants in the indictment against appellant McMillen, and
co-conspirators only in the indictment against appellant Gruchy, were three
other men-- Matthews, Orr, and John Kelley-- and named in both indictments as
a co-conspirator but not a defendant was one Silva. Some of these men and
others involved in the crime testified at the trial. It is the presence and absence

of certain instructions relating to their credibility that give rise to the major
issue of these appeals.

Of the testimony given by thirty-two witnesses during the five day trial, that of
thirteen was directed to the robbery itself, conducted by Orr and Matthews, and
the identification of automobiles used in the getaway. A substantial portion of
the testimony was given by the four alleged co-conspirators named in the
indictments and largely concerned the roles of appellants in planning the
robbery, splitting up the proceeds, and endeavoring to induce prospective
witnesses not to talk.

The two major accomplice witnesses were Silva and Matthews. Silva, named as
a co-conspirator in both indictments, was a school boy who worked part-time
for appellant Gruchy. Although his statement to the FBI and testimony before
the grand jury in no way implicated his employer, Silva gave a different
account of the relevant events the day before his appearance in the trial court
and his testimony on the witness stand was most damaging to Gruchy. No
charge had issued against him. While he knew that he could be prosecuted, he
denied that any threats or promises had been made to him.

Matthews had pleaded guilty to robbery and conspiracy and was serving his
sentence at the time appellants were brought to trial. A charge of armed
robbery was still pending against him on the morning of his testimony. Until
shortly before he testified, his account to the police had always been that guns
had been left in the car and had not been taken into the bank. He had told the
prosecution a week before trial that he would invoke the Fifth Amendment
because of the still pending charge. Then, an hour before taking the witness
stand, he admitted for the first time that he took a gun into the bank with him,
repeated this in testimony, and acknowledged that he knew that the prosecution
had already submitted to the court a motion to dismiss the armed robbery
charge. In fact, the court had granted the motion before Matthews began his

The other two accomplice witnesses, less important to the prosecution's case
than Silva and Matthews, were Walsh and William Kelley. A week before trial
Walsh had told the government for the first time of the incriminating incidents
to which he later testified. While denying that the FBI had threatened to indict
him if he did not testify, he admitted that he still feared prosecution. William
Kelley testified that the first time he had talked to a police officer about the
case was the night before his testimony when he was 'riding around in a car'
after having had several beers.

The remaining relevant prosecution testimony was that (1) of a gun dealer who
had sold the revolver used in the crime a week before to a customer who,
appellant McMillen later testified, was accompanied by him; (2) of a young
lady who contradicted appellant McMillen's testimony about the time of their
meeting on the evening following the robbery; and (3) of a Newton police
officer, arnold. The latter testimony was the most direct corroboration, the
officer testifying that he received a telephone call from McMillen two days
after the robbery asking him to meet McMillen at a nearby cocktail lounge; and
that in the ensuing conversation at the cocktail lounge McMillen asked how
much information the FBI had, 'how would it go for me if the missing money
turned up?', indicating that he could get the money if it were not Sunday.

As far as appellant Gruchy's involvement is concerned, there was no

corroborating testimony. The only testimony that could be said to approach
corroboration was that of the manager of the robbed bank who said that on one
occasion when Gruchy, a depositor, visited the bank he was accompanied by

The case for the defense consisted of alibi testimony by each appellant,
accounting for his whereabouts on the day of the robbery, and the testimony of
several witnesses which corroborated such accounts, contradicted the testimony
of Arnold, or described threats, promises, and improper motive on the part of
the FBI and the police.

The court in a long and thoughtful charge began with a careful discussion of the
presumption of innocence, and then dealt with the fact-finding prerogative of
the jury and the prosecution's burden of proof beyond a reasonable doubt. It
then charged in pertinent part as follows on the issue of credibility of witnesses:


'Each witness who takes the oath from Mr. Lyons to tell the truth is presumed
in the first instance to speak the truth, but that presumption may be outweighed
given, by the type of story the witness tells, or by other contradictory evidence
which you believe to be true.


'You may also consider any relation each witness may bear to either side of the
case. You may consider whether the witnesses has an interest in the outcome of
the case. * * *


'If as to any witness are satisfied that that presumption of truthfulness has been
outweighed on the basis of what I have just reviewed with you as to the factors
you may consider on credibility, you are free to give the testimony of that
witness such credibility, if any, as you think it may deserve. You are free to
accept that testimony, reject it in part or reject it completely.'


The remainder of the instructions treated the particular charges against

appellants, the elements required to be proved, and the complicated rules
governing proof of conspiracy. The record shows no requests for particular
instructions nor any objection.


The major contention of both appellants is that the quoted passage of the
instructions, concerning a 'presumption of truthfulness' of witnesses, combined
with a failure to include an instruction that the testimony of accomplices should
be scrutinized with caution, constitutes 'plain error' under Fed.R.Crim.P. 52(b).
We agree, with one important limitation.


Analysis is complicated for the reason that the net impact of two interacting
alleged errors in instructions must be assessed in the context of two cases with
enough in common to be tried together but with enough differences to be
considered separately on review. We shall discuss, first, each alleged error in
the light of relevant authorities, and, second, the requirements of the standard of
review applicable under Fed.R.Crim.P. 52(b) in the absence of requests for
instructions under Fed.R.Crim.P. 30. Finally, we shall apply these standards to
the case of each appellant.


The instructions given in this case as to a 'presumption of truthfulness' is, with

two exceptions, substantially identical to that set forth in Judge Mathes' 'Manual
of Jury Instruction and Forms for Federal Criminal Cases', 27 F.R.D. 39, 67. In
recent years this instruction has come under repeated attack for its absence of
support in either authority or logic and has been watered down in its most
recent version to read, 'Ordinarily, it is assumed that a witness will speak the
truth. But this assumption may be dispelled * * *.' Mathes & Devitt, Federal
Jury Practice and Instructions 72.01 (1965) (emphasis added).


In Knapp v. United States, 316 F.2d 794 (1963), the Fifth Circuit ruled that to
give the presumption instruction was not error, although not wise. A vigorous
concurring opinion by Judge Brown proclaimed it more than unwise,
particularly when coupled with a definition of the word 'presumption'. While he

looked upon it as error he did not believe it plain error, and since objection was
not made, he felt it was not reachable. In 1965 the Second Circuit dealt with the
problem in United States v. Persico, 349 F.2d 6, when it reversed a conviction
following a long and confused charge where the trial judge instructed, over
objection, that a 'witness is presumed to tell the truth' without saying how the
presumption can be outweighed. The Third Circuit in 1966 observed that there
was an almost complete absence of authority for talk about a legal presumption
of truthfulness in a criminal case, that such talk derogated from the jury's right
to pass on credibility and clashed with the instructions addressed to the
presumption of innocence and the burden of proof. United States v. Meisch,
370 F.2d 768. This case was followed soon by United States v. Johnson, 371
F.2d 800 (3d Cir. 1967), where, on objection, a conviction was reversed
specifically because the 'presumption' instruction was given.

These authorities, while helpful, do not control the situation before us. In the
two cases last cited, the defendants, unlike appellants here, had not taken the
stand or offered witnesses. The instruction therefore tended to have the effect of
telling the jury to take the testimony of the prosecution witnesses at face value.
But there is nothing to suggest that the rationale of the cited cases is confined to
such a narrow factual situation. Even where, as here, the defense offers
witnesses, the impact on each side of the presumption of truthfulness is not
necessarily equal.


All that we have said indicates that a trial judge in a criminal case ought not to
refer to a 'presumption of truthfulness'. It does not indicate that, in the absence
of objection, this instruction is 'plain error'. Nor have the cases we have cited so
held. As is always so, the particular circumstances of each case must be
carefully surveyed before such an unusual step is taken. In these appeals the
giving of this instruction must be weighed together with the complementary
failure to give an instruction that the testimony of an accomplice should be
carefully scrutinized.


Such an instruction, less subject to criticism than that we have been discussing,
almost immediately follows the other in Mathes' manual, 27 F.R.D. at 68. It is
unfortunate that neither court nor counsel thought of the appropriateness of
such an instruction where the testimony of Silva, Walsh, Matthews, and
William Kelley-- all confessedly engaged to some extent in either the
preparation or the commission of the crime-- was both important and extensive,
accounting for 40 per cent of all testimony. Moreover, counsel for McMillen
devoted most of his closing argument to attacking the credibility of these
witnesses and the 'magic potion' used by the prosecution, while counsel for the
prosecution briefly discounted any other motive for the testimony but that of

telling the truth.


Perhaps the court felt that it had adequately covered the accomplice issue by
inserting into the standard charge the following sentence: 'You may consider
whether the witness has an interest in the outcome of the case.' This followed a
similar sentence-- as to relationship of a witness to either side-- prescribed by
the standard form. It is this part of the charge to which counsel for the
government refers in his brief in the Gruchy appeal, saying:


'The position of the Government is that the charge on the question of credibility
is not offered as a substitute for an accomplice charge but that the charge as
given on the subject of credibility embraced and contained within it a form of
cautionary instruction in dealing with accomplice testimony.'


We do not think that the charge can be so construed. That its mention of
'relation' and 'interest' can embrace the specific possibilities of fear or favor
with which accomplice testimony is fraught is no substitute for an instruction
pinpointed at these possibilities.


We are dealing with an instruction which recalls the conviction of Walter

Raleigh based on the statements of his alleged co-conspirator Cobham in 1603.
See Phelps v. United States, 252 F.2d 49 (5th Cir. 1958).1 With roots so deep, it
is remarkable that what has grown through the centuries can still be called only
a 'counsel of caution'. 7 Wigmore, Evidence 2056 (3d ed. 1940). It is equally
remarkable that growth, however interstitial, can still be discerned in
contemporary American law.


In 1909 the Supreme Court observed that accomplice testimony 'ought to be

received with suspicion, and with the very greatest care and caution, and ought
not to be passed upon by the jury under the same rules governing other and
apparently credible witnesses.' Crawford v. United States, 212 U.S. 183, 204,
29 S.Ct. 260, 268, 53 L.Ed. 465. In 1910, while refusing to reverse a judgment
for failure to give an accomplice instruction, the Court admonished that it was
'the better practice for courts to caution juries against too much reliance upon
the testimony of accomplices * * *.' Holmgren v. United States, 217 U.S. 509,
524, 30 S.Ct. 588, 592, 54 L.Ed. 861. See also Caminetti v. United States, 242
U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917). In 1952 it cited as a modern trend
the admission of accomplice testimony, but subject to 'broad latitude' in crossexamination and 'careful instructions'. On Lee v. United States, 343 U.S. 747,
757, 72 S.Ct. 967, 96 L.Ed. 1270. And in Cash v. Culver, 358 U.S. 633, 79
S.Ct. 432, 3 L.Ed.2d 557 (1959), the Court in dealing with the failure of an

accused not represented by counsel to request an accomplice instruction

required by Florida decisions, recognized impliedly the substantiality of this

The real movement in this narrow field of practice has come from our sister
circuits. We begin with Diggs v. United States, 220 F. 545, 552 (1915), aff'd
sub nom. Caminetti v. United States, supra, where the Ninth Circuit observed
that it has discovered no case holding that it was reversible error to refuse a
request for an accomplice instruction. This authority has been followed not only
in that circuit, Pina v. United States, 165 F.2d 890 (9th Cir. 1948); Harris v.
United States, 261 F.2d 897 (9th Cir. 1958); Audett v. United States, 265 F.2d
837 (9th Cir.), cert. denied, 361 U.S. 815, 80 S.Ct. 54, 4 L.Ed.2d 62 (1959), but
until recently has also commanded the unqualified respect of the Fifth Circuit,
Lyles v. United States, 249 F.2d 744 (5th Cir. 1957), cert. denied, 356 U.S.
931, 78 S.Ct. 773, 2 L.Ed.2d 761 (1958); Siglar v. United States, 208 F.2d 865
(5th Cir.), cert. denied, 347 U.S. 991, 74 S.Ct. 854, 98 L.Ed. 1125 (1954); Pine
v. United States, 135 F.2d 353 (5th Cir.), cert. denied, 320 U.S. 740, 64 S.Ct.
40, 88 L.Ed. 439 (1943). Any court subscribing to this proposition would hold
that, in the absence of a request for an accomplice instruction, failure to give
such is not plain error. Even courts which might reverse for a refusal to give the
instruction under some circumstances, see Stoneking v. United States, 232 F.2d
385, 392 (8th Cir.), cert. denied, 352 U.S. 835, 77 S.Ct. 54, 1 L.Ed.2d 54
(1956), peremptorily refuse to not plain error when no request is made. Barnes
v. United States, 347 F.2d 925 (8th Cir. 1965).


Other circuits, refusing to subscribe to the unlimited latitude of Diggs, have in

recent years drawn a distinction, when requests for accomplice instructions are
refused, between cases where accomplice (or paid informer) testimony has been
corroborated by other evidence and where it has stood as the sole or dominant
source of incrimination or where the status of accomplice has been obscured
from the jury. In the former situation, error has not been found. United States v.
Cianchetti, 315 F.2d 584 (2d Cir. 1963); Joseph v. United States, 286 F.2d 468
(5th Cir. 1960); Pittsburgh Plate Glass Co. v. United States, 260 F.2d 397 (4th
Cir. 1958), aff'd, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959);
Stoneking v. United States, supra. In the latter situation, judgments have been
reversed. Hall v. United States, 324 F.2d 817 (5th Cir. 1963); Dunn v. United
States, 318 F.2d 89 (5th Cir. 1968); United States, v. Masino, 275 F.2d 129 (2d
Cir. 1960); Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321
(1946); Freed v. United States, 49 App.D.C. 392, 266 F. 1012 (1920). If
accomplice testimony was corroborated and no request for any instruction was
made, failure to give an instruction would not be plain error. Walker v. United
States, 285 F.2d 52 (5th Cir. 1960); Cratty v. United States, 82 U.S.App.D.C.

236, 163 F.2d 844 (1947).


This dichotomy of cases based on the presence or absence of corroboration of

accomplice testimony is already well removed from the carte blanche attitude
of Diggs v. United States, supra. What remains is to inquire into the situation
where (1) the testimony of an accomplice is the only evidence of guilt, (2) no
accomplice instruction is given, and (3) no request or objection is made by
counsel. In United States v. George, 319 F.2d 77 (6th Cir.), cert. denied, 375
U.S. 942, 84 S.Ct. 349, 11 L.Ed.2d 273 (1963), the incriminating testimony
was given by two key accomplice witnesses. No request for instructions was
made. But both the prosecuting attorney and the defense attorney had urged
caution in assessing their testimony and the judge in his charge had referred to
the high-handed methods pursued by the government in preparing its case. The
court found no manifest injustice under the circumstances.


This brings us to Williamson v. United States, 332 F.2d 123 (5th Cir. 1964),
where the Fifth Circuit faced a case involving a defendant implicated solely
through the testimony of an accomplice but where no request for an accomplice
instruction was made. In reversing, the court noted its disbelief in many
particulars of the incriminating testimony and said that the case was to be
distinguished from 'less spectacular circumstances' where the trial court has


Our present task is to apply the legal precedents relevant both to the giving of a
'presumption of truthfulness' instruction covering all witnesses and to the failure
to give a cautionary instruction applicable only to accomplice testimony when
no requests for or objections to the trial court's instructions were made. In this
task we are subject to the rigorous standards which must be met before we can
notice 'plain error'. We are not here concerned with technical error or with
prejudicial error, or even with our view of what we may deem to be the obvious
guilt or innocence of the individual appellants. In the words of Fed.R.Crim.P.
52(b) we are concerned only with any errors 'affecting substantial rights'. As
the Supreme Court stated in United States v. Atkinson, 297 U.S. 157, 160, 56
S.Ct. 391, 392, 80 L.Ed. 555 (1936), we may-- and we must-- notice errors
which 'seriously affect the fairness * * * of judicial proceedings.' The
circumstances must be 'exceptional' and the error must be such as to prejudice
'in a substantial manner appellant's right to a fair trial.' Polansky v. United
States, 332 F.2d 233, 235 (1st Cir. 1964). We therefore approach the issue with
full recognition of the time, effort, and expense which have been expended in
this trial, the care demonstrated by the court, the restraint of counsel for the
government, and the efforts of appellants' chosen counsel.


We take first the appeal of appellant Gruchy. We hodl that as to him the giving
of the 'presumption of truthfulness' instruction combined with the failure to give
a cautionary instruction as to the testimony of accomplice witnesses affected his
substantial rights. The only evidence connecting him with the bank robbery
came from the mouths of others involved in that escapade. Only one
nonaccomplice, the bank manager, even came close to establishing a linkage
when he testified that Gruchy and McMillen once jointly visited the bank. This,
we think, is insufficient corroboration. We concede that some of Gruchy's own
testimony was suspect.2 The fact remains that the entire affirmative case
against him was made by Silva, Matthews, and Walsh.


These were not accomplices who had paid their price to society and were free
from carrot or stick. Matthews knew that the prosecution had just
recommended that his armed robbery charge be dropped. Silva knew that
prosecution was possible. And Walsh acknowledged that the FBI had talked
with him about the consequences of not telling the truth on the stand and that
he still feared prosecution. While counsel endeavored in argument to persuade
the jury to disbelieve this testimony, the court said nothing about the
appropriateness of giving it special scrutiny. Not only did the accomplice
testimony escape any such special caution but it was affirmatively linked with
all other testimony as enjoying a 'presumption of truthfulness' which had to be
'outweighed' before it was discounted. Recognizing the rare occasions when it
is proper to notice 'plain error', we think that the particular circumstances here-the doubleacting error relating to the uncorroborated testimony of accomplices
on which rests the conviction of appellant Gruchy-- justify reversal.


We view McMillen's case differently. While the same double defect in

instructions undoubtedly affected him adversely, we cannot say that there exists
a reasonable possibility of miscarriage of justice. For there is present here what
was lacking in Gruchy's case-- corroborating evidence. That this is highly
significant was recognized in McMillen's brief where counsel stated: 'The
appellant submits that the record establishes that he could not have been
convicted without the testimony of the co-conspirators. The credibility of such
testimony was therefore critical to the conviction.' We disagree. Even if the jury
disbelieved all of the accomplice witnesses, there was an adequate basis for
finding him guilty.


Officer Arnold's testimony about the cocktail lounge conversation with

McMillen, if believed, constituted an admission and was sufficient to support
the jury's verdict. Additionally, the testimony of the gun shop owner, that he
sold a revolver identified as one used in the robbery, gained significance when

McMillen said that he had accompanied Orr to the gun shop a week before the
robbery to lend his name and advice in purchasing small weapons for
protection. Moreover, McMillen's precise recollection of his activities on the
day of the robbery 3 was, as to a substantial segment of time, i.e., the evening,
flatly contradicted by a rebuttal witness. We, therefore, cannot notice 'plain
error' in this case.

Appellant McMillen further asserts that it was error for the court to have
instructed the jury that it could find him guilty of both robbery and robbery
with a dangerous weapon, in violation of 18 U.S.C. 2113(a) and (d), and that
the subsequent convictions and twenty-year concurrent sentences on these two
counts were invalid and conclusive of a mistrial. He argues that the convictions
are inconsistent, since the robbery was committed either with or without the use
of a gun.


Conviction for robbery, however, does not require proof of the absence of a
weapon. It merely does not require proof of the use of a weapon. One could be
indicted and convicted for simple robbery even though the use of a weapon
were proved. Such proof would merely be surplusage. This is not a situation of
inherent inconsistency such as that which existed in Milanovich v. United
States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), cited by appellant
McMillen, where a defendant was sentenced for both larceny of government
property and receiving the same property. One cannot at once take and receive
the same thing. What is involved here, however, is a lesser offense all elements
of which are included in a greater offense.


While Prince v. United States, 352 U.S. 322, 328, 77 S.Ct. 403, 1 L.Ed.2d 370
(1957), has described the final result of convictions under separate subsections
of the Bank Robbery Act as a merger of the lesser into the greater offense, the
fact that concurrent sentences are imposed nor exceeding the maximum
sentence for violation of the armed robbery subsection does not constitute the
pyramiding of penalties which Prince stated not to be within the intent of
Congress. 352 U.S. at 327, 77 S.Ct. 403, As we recognized in Campbell v.
United States, 269 F.2d 688, 692 (1st Cir. 1959), vacated on other grounds, 365
U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), a multiple sentence under the
Bank Robbery Act is 'technically incorrect'. But, noting that the Court in Prince
was dealing with consecutive sentences, we concluded that the imposition of
concurrent sentences not exceeding the maximum for the armed robbery count
did not harm defendants. We are of the same mind today.4 See United States v.
Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 . l.Ed.2d 658 (1965); Hirabayashi v.

United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Sinclair v.
United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692 (1929); Abrams v.
United States, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173 (1919). Moreover,
at the district court level there is the danger that if the court imposes a jail
sentence on only one count, appellate action may, unavoidably, result in an
overally miscarriage of justice. Cf. Pugliese v. United States, 353 F.2d 514 (1st
Cir. 1965).

At the present stage of the proceedings a tidying up of the record may be in

order. We therefore direct that as to appellant McMillen the sentence on Count
1, the lesser substantive offense, be vacated, but that otherwise as to him the
judgments of the District Court be affirmed. As to Gruchy, the judgment and
sentence as to both counts is vacated and the case remanded for a new trial
consistent herewith.

For a recent account of this trial, see Bowen, The Lion and The Throne, ch. 15
& 16 (Little Brown 1956)

For example, Silva had testified that, on the occasion of an earlier planned
robbery which fell through, Gruchy had commented, 'Where are those guys?
That is what I get for having kids do a job for me.' Gruchy's explanation was
that despite the fact that his business was steadily losing money, he had hired
McMillen to paint his premises and that nothing had been done, with winter
approaching. Hence his remark. He further testified that he spent the afternoon
of the robbery-- the time when, according to Matthews, the conspirators met
and divided the proceeds-- going over figures relating to a proposed conversion
of his employees to a piece work basis. The figures were supplied him by his
foreman, a young man whom he had hired as a welder and who, at time of trial,
a cook

Not only did McMillen recall the exact time of each move made during the day,
the number of a cab he had taken, the labels on baskets he observed, but he also
testified that during the afternoon (when, according to Matthews, the robbery
proceeds were being divided up by the conspirators) he had spent three hours in
the Museum of Fine Arts

While courts have quoted with approval the assertion in Hibdon v. United
States, 204 F.2d 834, 839, 37 A.L.R.2d 1130 (6th Cir. 1953), that '* * * a
multiplicity of sentences impairs a prisoner's opportunities for pardon or
parole', we agree with the contrary observation in Clark v. United States, 267
F.2d 99, 102 (4th Cir. 1959), that '* * * eligibility for parole is not affected,

since that is determined by the length of the term of imprisonment and not by
the number of sentences imposed. 18 U.S.C.A. 4202; United States Probation
Officer's Manual, Chapter VII.'