APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Adams, Garth and Van Dusen, Circuit Judges. Garth, Circuit Judge, dissenting.
VAN DUSEN, Senior Circuit Judge.
This appeal from a judgment of conviction for conspiracy under 18 U.S.C. § 1951 challenges the district court's refusal to instruct the jury that a reasonable doubt as to the defendant's guilt may be raised if the jury believes one of his character witnesses.*fn1 We hold that the district court properly refused to give this instruction as stated by the defendant but that, under the circumstances presented by this record, the district court committed plain error by failing to provide the jurors with any guidance or directions for the proper consideration of character evidence during their deliberations. Accordingly, we will reverse and remand for a new trial.
A jury convicted the defendant-appellant Graner (herein defendant) of one count of conspiracy under the Hobbs Act, 18 U.S.C. § 1951.*fn2 At trial the Government presented, as the chief prosecution witness, the defendant's indicted co-conspirator, Patrick Logan, who had entered into a plea agreement with the Government prior to trial. According to Logan, he and the defendant, both of whom worked as assessors for the Board of Property Assessments in Allegheny County, Pennsylvania, conspired to reduce a proposed increase in the assessed value of a property known as the Hob Nob Lounge in return for a payment to them.
The Government also called Charles Blocksidge, the director of the Board, who described its purpose and internal organization. The Board values all real property within the county for property tax purposes. For administrative convenience, Blocksidge explained, the Board divides the county into twelve sectors, each of which has a supervisor responsible for five or six assessors and approximately 40,000-45,000 parcels of land. When an assessor revalues a property, usually to reflect a change or improvement, he issues a "change order" which his supervisor signs and forwards to the main office for processing and approval.
The Government then called Thomas Sullivan, who owned property within Logan's district. Sullivan testified that on a previous occasion he had paid Logan to reduce an increase in a property assessment for his building. When Sullivan suggested similar treatment for the Hob Nob Lounge, located within the defendant's district, Logan agreed to make the necessary arrangements. Sullivan, however, never dealt with, talked or met the defendant and at trial could not identify him. Sullivan's entire knowledge of the defendant's alleged participation in the scheme emanated from Logan.
Four FBI agents who had participated in the investigation which culminated in the indictment against the defendant also testified for the Government. Agents Kraus and Smith explained they had participated in a surveillance of a meeting between Logan and the defendant on October 21, 1981.*fn3 Agents Powers and Wolf stated they had interviewed the defendant on April 20, 1982, and that during the interview the defendant said that he and Logan had met for the specific purpose of transferring the defendant's share of the money in the envelope to him.*fn4
Indisputedly, the Government's most inculpatory evidence was the testimony of Patrick Logan, who testified that he had telephoned the defendant in September of 1981 to inform him of the possibility of making some money on the reassessment of the Hob Nob Lounge, which had been undergoing renovations following a fire. According to Logan, he and the defendant agreed to reduce the increase in assessed value from $12,000. to $5,000., which netted savings to the property owner of $700.00. Logan claimed that he received $400.00 of this amount and that he gave the defendant $150.00 on October 21.
On cross-examination, Logan admitted that he had been taking similar kickbacks for approximately ten years prior to this incident. He further admitted that he had lied to FBI agents when he told them that he had never heard of any assessors taking kickbacks and that he did not believe it possible for an assessor to do so.*fn5 In addition, Logan acknowledged that he had been reprimanded by the Board in May of 1980 for his exercise of "poor judgment and negligence" in the submission of information and recommendations for reductions in property assessments.
In sum, the only witness whose testimony critically linked the defendant to the alleged scheme was Logan, on whose credibility the entire Government case hinged.
The defense consisted of the defendant's own testimony and seven character witnesses.*fn6 The defendant testified that Logan asked him to assess the Hob Nob Lounge at a low value as a "favor" for a friend and that they did not discuss a pecuniary reward for the defendant in exchange. On September 24, 1981, the defendant and his supervisor inspected the premises and thereafter defendant computed the assessment by comparing it to another bar in the vicinity.*fn7 Later Logan called and arranged a meeting between them at a parking lot, where Logan handed him an envelope, which the defendant later discovered contained $150.00.
The defendant's version of the transaction relating to the Hob Nob Lounge directly contradicted Logan's testimony, thus pitting the defendant's credibility squarely against Logan's. To buttress his own credibility, the defendant called seven character witnesses who testified that the defendant had a reputation in the community for honesty and truthfulness.*fn8
Character evidence is a unique kind of admissible circumstantial evidence. Although the accused's character usually is not the ultimate issue, lay witnesses are permitted to express opinions, based entirely on hearsay, that the defendant has a reputation in the community for truthfulness. The prosecution may not, during its case-in-chief, introduce evidence of the defendant's bad character or criminal predisposition. However, the defendant himself may elect to place his character at issue, and the opinion testimony which he introduces into the trial constitutes substantive evidence which, under certain circumstances, can raise a reasonable doubt as to his guilt, even though it does not relate to the specific criminal act of which he is accused.
By introducing evidence of his good character, the defendant "throw[s] open the entire subject" of his character and, consequently, allows the prosecutor to penetrate a previously proscribed preserve, to produce contradictory evidence, to cross-examine the defendant's character witnesses and to probe the extent and source of their opinions. Michelson v. United States, 335 U.S. 469, 479, 93 L. Ed. 168, 69 S. Ct. 213 (1948). In other words, the defendant makes himself "vulnerable where the law otherwise shields him." Id. See also Fed. R. Evid. 404, 608(a) and 803(21).
Given the unique nature of character evidence,*fn9 the importance of appropriate instructions to provide jurors with adequate guidance for consideration of this testimony cannot be underestimated. In Edgington v. United States, 164 U.S. 361, 366, 41 L. Ed. 467, 17 S. Ct. 72 (1896), the Supreme Court ruled that the jury should be instructed that character evidence,
". . . when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although without it the other evidence would be convincing."
See also Michelson v. United States, 335 U.S. at 476 ("this privilege . . . in some circumstances, may be enough to raise a reasonable doubt of guilt and . . . in federal courts a jury in a proper case should be so instructed").
This court has recognized the necessity of appropriate jury instructions relating to character evidence. In United States v. Frischling, 160 F.2d 370 (3d Cir. 1947), the defendant requested the following charge:
" Good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt sufficient to justify ...