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United States v. Gallishaw

decided: June 8, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
ERNEST GALLISHAW, DEFENDANT-APPELLANT



Hays, Anderson and Feinberg, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

Ernest Gallishaw appeals from his conviction of conspiring to rob a bank, 18 U.S.C. § 371, after a jury trial in the United States District Court for the Eastern District of New York, Jacob Mishler, C. J. Because of a basic error in a supplemental charge to the jury, we conclude that we must reverse the conviction.

Appellant was indicted with five other defendants in a four-count indictment and was tried on Counts One, Two and Four. Counts One and Two charged him with substantive crimes in the robbery of a named bank in Queens, 18 U.S.C. §§ 2113(a), (d) and 2. On these counts, after an eight-day trial, the jury failed to agree. On Count Four, which contained the conspiracy charge, appellant was convicted. Two other defendants, Otis Thompson, also known as Thomas, and Wigberto Carballo, pleaded guilty to Count One; another defendant, Manuel Marrero, was tried with appellant.

The chief government testimony connecting appellant with the crimes charged was given by Carballo. He testified that on the morning of the robbery, he went with Thomas in a car driven by the latter to a poolroom in Brooklyn. Thomas went into the poolroom and came out accompanied by appellant, who got into another car. Both cars were then driven to a drug store. Thomas and Gallishaw got out of their cars and went into the drug store; Thomas returned and asked Carballo for the registration for the car, which was in the glove compartment. Carballo handed the registration through the window to Thomas who went back into the drug store. In a few minutes, Thomas and Gallishaw came out. Carballo heard them talking and testified as follows:

Q. What was said?

A. Mr. Gallashaw [ sic ] said, " Make sure you bring it back," and Thomas said that he will be sure that he will bring it back and if he didn't pull the bank job, "I will pull something else to give him the money."

The cars were then driven back to where Thomas first picked up Gallishaw. The latter obtained a briefcase which he then put in the trunk of Thomas's car. Thomas and Carballo then went to the home of Silva, a co-conspirator, where the brief case was opened. It contained a machine gun which was actually used later that day to rob the bank in Queens. Thomas told Silva that he had obtained the gun from Gallishaw.

Carballo's testimony was attacked vigorously on cross-examination but this need not concern us. It was not incredible as a matter of law and the jury showed by its verdict that his story was accepted, at least in substantial part. Appellant took the stand and denied that he had anything to do with the bank robbery, claiming that he was at work that day in an OEO-sponsored project. The jury obviously did not credit this testimony and believed that Gallishaw did supply a machine gun to Thomas. The jury was puzzled, however, by one of the fine points in the law of conspiracy, and it was the handling of this aspect of the case that requires reversal.

I.

In his charge to the jury, the judge defined the elements of the substantive crimes charged in Counts One and Two and the conspiracy charged in Count Four. During its deliberation, the jury sent the following note to the judge:

Does the supplying or renting of a gun, which is subsequently used in a bank robbery, constitute grounds for a conspiracy if the person who rents the gun doesn't know how or where the gun will be used?

The judge answered the question:

Well, I charge you that it isn't necessary for the Government to prove that the one who rented the gun knew precisely what was intended or all the objectives of the conspiracy or the specific objectives of the conspiracy, or how the gun was to be used. But if you find that the defendant rented the gun and understood and knew that there was a conspiracy to do something wrong and to use the gun to violate the law, you may find that he willfully entered the conspiracy.

Now, of course, that element must be proved beyond a reasonable doubt. If that is all the evidence that the Government has established, you must be satisfied that by that evidence the Government has proved beyond a reasonable doubt that he entered the conspiracy willfully and knowingly. And willfully and knowingly, as I charged you, means that he entered it intentionally and with the specific knowingly [ sic ] and with the specific intent to do something which the law forbids. That means to violate some law.

Defense counsel objected to this answer after it was given, but the supplemental charge remained uncorrected. Thereafter, the jury convicted appellant of conspiracy under Count Four, although it was unable to agree on Counts One and Two, which charged him with aiding and abetting the commission of the substantive crimes.

On appeal, we are thus faced with the following situation. The Government's witness, Carballo, testified that when Gallishaw handed over the machine gun, Thomas said he would either "pull the bank job" or "pull something else" with it. This imprecision about both Thomas's intentions and Gallishaw's knowledge of them apparently bothered the jury and led it to inquire about the possibility of participation in a conspiracy "if the person who rents the gun doesn't know how or where the gun will be used." It may be that the jury was asking only whether a conspirator had to know about specific places and times. However, it is at least as likely that this jury, which failed to convict Gallishaw on the substantive offense counts, was asking whether a weapon supplier who knew in a general way that a machine gun was to be used to "pull something" could be said to have joined a conspiracy to rob a bank. The judge answered, in the press of the moment, that the jury could convict if Gallishaw rented the gun with the knowledge "that there was a conspiracy to do something wrong and to use the gun to violate the law." The jury was thus told, in a singularly pointed way, that it could convict on the conspiracy count without deciding whether to believe Carballo's testimony that Thomas had specifically mentioned a possible bank robbery to Gallishaw along with his generalized statement about pulling something.

Under this instruction, the jury may simply have drawn the perfectly reasonable inference that one who rents a machine gun knows it is likely to be used "to do something wrong" or "to violate the law," and therefore convicted Gallishaw, totally without regard to anything Thomas said, of the conspiracy charged in the indictment. A verdict on such a basis would have been improper. In Ingram v. United States, 360 U.S. 672, 678, 79 S. Ct. 1314, 1319, 3 L. Ed. 2d 1503 (1959), the Supreme Court stated:

"Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the ...


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