Bihn v. United States

54 Citing cases

  1. People v. Ross

    67 Cal.2d 64 (Cal. 1967)   Cited 131 times
    Arguing that Chapman can be read to support either test, but in fact supports the contribution test

    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.

  2. United States v. Walker

    190 F.2d 481 (2d Cir. 1951)   Cited 33 times
    In United States v. Walker, 190 F.2d 481 (2d Cir.), cert. denied, 342 U.S. 868, 72 S.Ct. 109, 96 L. Ed. 653 (1951), and 197 F.2d 287 (2d Cir.), cert. denied, 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679 (1952), it was held that the search of the defendant's luggage after his arrest, and with the consent of his presumed wife was not unreasonable. And in Driskill v. United States, 281 F. 146 (9th Cir. 1922), a search conducted under circumstances very similar to those in Von Eichelberger, supra, was upheld.

    " 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."

  3. Watts v. Mahally

    247 F. Supp. 3d 605 (E.D. Pa. 2017)   Cited 1 times

    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."

  4. U.S. v. Fuller

    162 F.3d 256 (4th Cir. 1998)   Cited 23 times
    Holding trial court correctly refused to instruct the jury on availability of "mistake of law" defense to 21 U.S.C. § 841 charge

    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.

  5. Rogers v. United States

    367 F.2d 998 (8th Cir. 1966)   Cited 30 times
    Rejecting argument that the government was required to present evidence that defendant did not have a permit to sell wild ducks and geese

    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."

  6. United States v. Del Llano

    354 F.2d 844 (2d Cir. 1965)   Cited 23 times

    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).

  7. Blocker v. United States

    288 F.2d 853 (D.C. Cir. 1961)   Cited 66 times
    In Blocker v. United States, 110 U.S.App. D.C. at 50, 288 F.2d at 862 (1961), concurring opinion, we pointed out that experts ought not be permitted to express a conclusion opinion on whether a particular act was or was not the "product" of mental disease and that United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617 (1935) and Simmons v. United States, 92 U.S.App.D.C. 122, 206 F.2d 427 (1953), preclude such opinions.

    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.

  8. Goldberg v. United States

    213 F.2d 734 (4th Cir. 1954)   Cited 1 times

    " 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.

  9. Olender v. United States

    210 F.2d 795 (9th Cir. 1954)   Cited 100 times
    Finding file from county's public welfare department should have been excluded as hearsay because it contained an affidavit from a relative and five reports from banks

    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.

  10. Benatar v. United States

    209 F.2d 734 (9th Cir. 1954)   Cited 15 times
    Finding that defendant president's signature on tax forms was sufficient evidence to support conviction for conspiracy with corporation to defraud Government by obstructing proper functions of IRS

    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.