Although the use of the "presumed" language could be construed as requiring a mandatory inference, the phrases "you are to determine the intention . . ." and "the jury has a right to infer" indicated to the jury that the finding of intent was within their discretion. See Rivera v. Coombe, 683 F.2d 697, 701 (2d Cir. 1982). Justice Warner's statement that "the existence of criminal intent constitutes a question of fact for determination by you, the jury . . .," Record at 297, further emphasized that the government's burden of proving guilt beyond a reasonable doubt on all elements of the crime had not shifted.
In addition, any burden-shifting implication these words may actually have had probably was undercut by the illustration which the trial judge provided. Conspicuously absent from the entire charge is an "unless clause," see Rivera v. Coombe, 683 F.2d 697, 701 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206, 210-11 (2d Cir. 1982), which would put the jury on notice not to assume the existence of intent if the facts made such an assumption unreasonable. In Rivera the ameliorative "unless clause" qualified the presumption instruction by advising the jury they might presume intent from acts "unless such acts were done under circumstances which would preclude the existence of intent."
Unlike several charges that have passed muster under Second Circuit scrutiny, the prohibited language — "a person is deemed to intend the natural consequences of his act" — was not followed-up within the same sentence by ameliorative language. See,e.g., Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982) ("unless such acts were done under circumstances which would preclude the existence of such intent %y(4)2"); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982) (same); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982) (same). Instead, the mitigating language appears in the next sentence and not in the same sentence as the constitutionally infirm language.
In denying Rule 60(b) relief, although the court stated that it saw "no reason to consider the Rule 60(b)(6) claim," (1983 Order at 1; emphasis added), it apparently rejected the motion on its merits, stating that its 1981 denial of Matarese's petition was buttressed by the subsequent decisions in Guichard v. Smith, 517 F.Supp. 942, 948 (E.D.N.Y. 1981), aff'd, 681 F.2d 801 (2d Cir. 1981), cert. denied [ 459 U.S. 841], 103 S.Ct. 92, [74 L.Ed.2d 85] (1982); Nelson v. Scully, 672 F.2d 266, 272 (2d Cir. 1982), cert. denied, 456 U.S. 1008 [102 S.Ct. 2301, 73 L.Ed.2d 1304] (1982); Rivera v. Coombe, 683 F.2d 697, 700 (2d Cir. 1982), cert. denied [ 459 U.S. 1162], 103 S.Ct. 805 [74 L.Ed.2d 1007] (1983); Brayboy v. Scully, 695 F.2d 62, 66 (2d Cir. 1982), cert. denied [ 460 U.S. 1055], 103 S.Ct. 1505 [75 L.Ed.2d 934] (1983); Rock v. Coombe, 694 F.2d 908, 915-16 (2d Cir. 1982), cert. denied [ 460 U.S. 1083], 103 S.Ct. 1773 [76 L.Ed.2d 345] (1983); and see also Connecticut v. Johnson [ 460 U.S. 73], 103 S.Ct. 969, 977-78 [74 L.Ed.2d 823] (1983) (plurality opinion) (standard for harmless error in reviewing Sandstrom claims). 1983 Order at 1-2.
Such phrasing removes any constitutional infirmity for it describes only a permissive inference. Hardy v. United States, 691 F.2d 39, 42 (1st Cir. 1982); Lamb v. Jernigan, 683 F.2d 1332, 1340 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983); Rivera v. Coombe, 683 F.2d 697, 700-01 (2d Cir. 1982); Jacks v. Duckworth, 651 F.2d 480, 486-87 (7th Cir. 1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982); United States v. Ming Sen Shiue, 650 F.2d 919, 924 (8th Cir. 1981); United States v. Mayo, 646 F.2d 369, 375 (9th Cir.), cert. denied, 454 U.S. 1127, 102 S.Ct. 979, 71 L.Ed.2d 115 (1981); United States v. Ogle, 613 F.2d 233, 242-43 (10th Cir. 1979), cert. denied, 449 U.S. 825, 101 S.Ct. 87, 66 L.Ed.2d 28 (1980); United States v. White, 611 F.2d 531, 538-39 n. 8 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980). The Sandstrom jury was not told that they could, if they wished, conclude that a person intends the consequences of his voluntary acts. They were charged instead that the law presumed this.
Since the validity of these instructions is not before the court, we neither approve nor condemn them. The state relies on cases from other circuits such as Brayboy v. Scully, 695 F.2d 62 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982); Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982); Niziolek v. Ashe, 694 F.2d 282 (1st Cir. 1982). The second circuit cases involved intent instructions containing ameliorative or detailed explanatory language.
My problem lies not so much with the court's opinion, but with the law of the circuit. As I suggested in dissent in Rivera v. Coombe, 683 F.2d 697, 702, 703 n. 1 (2d Cir. 1982), arguably the clause found improper in the charge in United States v. Robinson, 545 F.2d 301 (2d Cir. 1976) — unless the contrary appears from the evidence" — is not meaningfully different from the "ameliorative" clause found proper in Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982), Rivera, and this case — unless the act is done under circumstances or conditions that might preclude the existence of such intent." I say the clauses are not genuinely different because Sandstrom was concerned with the perceptions of a reasonable juror and with what a reasonable juror could have assumed the instructions to mean.
DISCUSSION In Sandstrom v. Montana, which has been the subject of considerable recent discussion in this Court, see, e.g., Ramirez v. Jones, 683 F.2d 712 (2d Cir. 1982); Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982); Nelson v. Scully, 672 F.2d 266 (2d Cir.), cert. denied, ___ U.S. ___, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982), the United States Supreme Court ruled that a jury instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts," violates the defendant's right to due process because it tends to shift the burden of proof on the issue of intent to the defendant and to deprive the defendant of the presumption of innocence. In the present case the State does not seriously contend that the portion of the supplemental instruction challenged by Arroyo — "people are presumed to intend the natural, probable and logical consequences of their acts" — is not the same type of instruction found invalid in Sandstrom.
In Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981), the jury was told only that it "may infer intent from actions" — a permissive rather than mandatory presumption. In Rivera v. Coombe, 683 F.2d 697, 701 (2d Cir. 1982), the district court's erroneous instruction — that a "person is presumed to intend the natural consequences of his acts" — was deemed cured by statements that the Supreme Court in Francis subsequently found to be inadequate. Respondent's argument that it was reasonable for trial counsel not to object to the proposed intent instruction because it was his "strategic choice" to "forego any challenge to the People's proof of intent to kill," Memo. of Law in Opposition to Pet'n for Writ of Habeas Corpus at 31, in lieu of an appeal to the jury to engage in nullification is, in a word, illogical.
Second, an "inference", sometimes referred to as a "permissive presumption," allows, but does not require, the trier of fact to find the existence of a fact upon finding that an underlying fact has been established. See Rivera v. Coombe, 534 F. Supp. 980, 987-88 (S.D.N.Y. 1982) rev'd on other grounds, Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982). Here, after hearing the (live) testimony of the Master and Chief Mate, among others, the Majority chose to credit their testimony and found their version of events — i.e. that they did not know who caused the erasures; were not aware of the clogging in the deck lines until they were out at sea; and were not made aware of the waxy, high pour nature of the cargo — to be credible. (Decision and Award at 6-9.)