By diminishing the fixed procedural requirement of proof beyond a reasonable doubt, the error deprived defendant of a substantial right and denied him a fair trial. ( Bollenbach v. United States, 326 U.S. 607, 614 [ 90 L.Ed. 350, 355, 66 S.Ct. 402]; Bihn v. United States, 328 U.S. 633, 637 [ 90 L.Ed. 1484, 1487-1488, 66 S.Ct. 1172]; see also Boatright v. United States, 105 F.2d 737, 740.) Moreover, since it served to stifle the doubts that might reasonably have been engendered by the inconsistencies in the prosecution's circumstantial case, it may even have carried decisive weight with the jury.
" See also Krulewitch v. U.S., 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790; Bihn v. U.S., 328 U.S. 633, 638, 639, 66 S.Ct. 1172, 90 L.Ed. 1485; Bollenbach v. U.S., 326 U.S. 607, 613-615, 66 S.Ct. 402, 90 L.Ed. 350; Weiler v. U.S., 323 U.S. 606, 611, 65 S.Ct. 548, 89 L. Ed. 495; Bruno v. U.S., 308 U.S. 287, 293-294, 60 S.Ct. 198, 84 L.Ed. 257; McCandless v. U.S., 298 U.S. 342, 347-348, 56 S.Ct. 764, 80 L.Ed. 1205; Berger v. U.S., 295 U.S. 78, 82-84, 84-89, 55 S. Ct. 629, 79 L.Ed. 1314; Echert v. U.S., 8 Cir., 188 F.2d 336, 341-342; Sang Soon Sur v. U.S., 9 Cir., 167 F.2d 431, 432-433; Kempe v. U.S., 8 Cir., 151 F.2d 680, 689-690; U.S. v. Dressler, 7 Cir., 112 F.2d 972, 977-981. Compare the words of Judge Magruder: "If the prosecutor is not content to rely on the untainted evidence, and chooses to `button up' the case by the known use of perjured testimony, an ensuing conviction cannot stand, and there is no occasion to speculate upon what the jury would have done without the perjured testimony before it."
Likewise, when an erroneous jury instruction deprives a defendant of the right to a verdict of guilt beyond a reasonable doubt, it is per se prejudicial because it "vitiates all the jury's findings" and its effects "are necessarily unquantifiable and indeterminate." Sullivan v. Louisiana , 508 U.S. 275, 281–82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (emphasis in original); see alsoBihn v. United States , 328 U.S. 633, 637, 66 S.Ct. 1172, 90 L.Ed. 1484 (1946) (jury instruction shifting the burden of proof onto defendant was prejudicial error, even though there was uncertainty as to actual harm, because "the probabilities of confusion in the minds of the jurors seem[ed] so great, and the charge was so important to the vital issue in the case"). This "per se rule of prejudice" exists in other "Sixth Amendment contexts," such as "various kinds of state interference with counsel's assistance."
But where the facts are disputed and the evidence is more evenly balanced, it is error for the trial judge to give his opinion that "the Government has sustained the burden cast upon it by the law and has proved that this defendant is guilty in manner and form as charged beyond a reasonable doubt." Murdock, 290 U.S. at 393; cf. Bihn v. United States, 328 U.S. 633, 638 (1946). Furthermore, in every case where the trial judge's instruction has the effect of directing a verdict, the instruction is error, see Gaudin, 515 U.S. at 520-23, and to the extent that the Court's decision in Horning is read to approve an instruction through which the trial judge "effectively . . . order[s] the jury to convict," Horning amounts to an "unfortunate anomaly," Gaudin, 515 U.S. at 520.
Why must we even pose the question? See Bihn v. United States, 328 U.S. 633, 66 S.Ct. 1172, 90 L.Ed. 1485 (1946). The trial court there said to the jury, "Did she steal them? Who did if she didn't? You are to decide that."
Fed.R.Crim.P. 52(b). Rule 52, however, was intended to be simply a restatement of previously existing law in this area. See Bihn v. United States, 328 U.S. 633, 638 n. 3, 66 S.Ct. 1172, 90 L.Ed. 1485 (1946). See generally United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).
The Eighth Circuit said as much in Stoneking v. United States, 1956, 232 F.2d 385, where the following appears at page 389: Cf. dissent of Mr. Justice Black in Bihn v. United States, 1946, 328 U.S. 633, 639, 66 S.Ct. 1172, 90 L.Ed. 1485. "In considering the effect of a challenged portion of a court's instruction to the jury, this court must view the charge in its entirety to determine whether or not the jury could have been misled by the portions to which objection has been made. Myers v. United States, 8 Cir., 1927, 18 F.2d 529, 530.
" While these questions were phrased in somewhat colloquial terms, each was germane to the question of Goldberg's guilt, and there was ample evidence which, if believed by the jury, would justify the jury in answering these questions adversely to Goldberg and in favor of the contentions of the Government. These questions do not fall within the condemnation of the Supreme Court in the leading case of Bihn v. United States, 328 U.S. 633, 66 S.Ct. 1172, 90 L.Ed. 1485. There three Justices dissenting, the conviction was reversed, when the Trial Judge thus instructed the jury, 328 U.S. at pages 636-637, 66 S.Ct. at page 1174: "`Who would have a motive to steal them? Did she take these stamps? You have a right to consider that.
See Demetree v. United States, 5 Cir., 207 F.2d 892; Lurding v. United States, 6 Cir., 179 F.2d 419, 422. The challenged instruction is in some ways similar to that given in Bihn v. United States, 328 U.S. 633, 637, 66 S. Ct. 1172, 90 L.Ed. 1485. That case involved a prosecution for conspiracy to steal ration coupons.
Rule 30 should not be whittled down to suit the individual inclinations of particular judges in particular cases. It has a salutary purpose, and should be honored more in the observance than in the breach. Furthermore, were it to be held that the failure to give the requested instruction 12 was error, from a reading of the whole record it affirmatively appears that such failure was not prejudicial. Bihn v. United States, 328 U.S. 633, 66 S.Ct. 1172, 90 L.Ed. 1485. We conclude "with fair assurance after pondering all that happened" that the judgment in this case would not have been different had the refused instruction been given. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557.