of Crime & Bitter Fruit
© Jerry Buchmeyer, 1981
The most dramatic
opening for a judicial opinion? It’s the one used by Judge William
H. Mulligan for his swan song” in United States v. Byrnes,
644 F.2d 107 (2d Cir. 1981)
"... that she did pick up the birds in 1975 but further stated that after driving away from the airport for ten or fifteen minutes, she heard no noises from the crates. She stated that she stopped at a gas station, pried open the crates and discovered that all the birds were dead and in fact so stiff that she assumed they had been dead for some time. (D.O.A.). She promptly drove to a municipal dump where the birds were interred in unconsecrated ground."Because of this testimony, the defendant Byrnes was indicted on four counts of false testimony before a grand jury (18 U.S.C. § 1623). She was convicted, fined $10,000, and placed on probation for one year.
The appeal did not attack the sufficiency of the evidence to support the conviction — but fortunately, this did not deter Judge Mulligan from immortalizing the testimony of Ida Meffert who “had emigrated from Germany and had obvious difficulties with the English language (and) was one of the four government witnesses brought from California to Syracuse for this momentous trial.” Mrs. Meffert testified, among other things,(5) that in February of 1975 the defendant Byrnes had delivered four live swans and two live red-breasted geese to her “pursuant to an arrangement with Fitzsimmons whereby Mrs. Meffert and her husband provided room and board for some of his exotic wildlife.” However, Mrs. Meffert testified that the swans and geese were not birds — that, to her, they were waterfowls,(6) This resulted in a grueling cross-examination by the defendant’s attorney "that was apparently aimed at her ornithological qualifications”:
“Q. Are sparrows birds?
A. I think so, sure.
Q. Is a crow a bird?
A. I think so.
Q. Is a parrot a bird?
A. Not to me.
Q. How about a seagull, is that a bird?
A. To me it is a seagull, I don’t know what it is to other people.
Q. Is it a bird to you as well or not?
A. To me it is a seagull. I don’t know any other definition for it.
Q. Is an eagle a bird?
A. I guess so.
Q. Is a swallow a bird?
A. I don’t know what a swallow is, sir.
Q. Is a duck a bird?
A. Not to me, it is a duck.
Q. But not a bird.
A. No, to other people maybe.
Q. Where is your husband now, ma’am?
A. Up in the Room. Transcript at 400-01."
The difficulty of establishing that swans and geese were birds, “a proposition not accepted by Mrs. Meffert,” was obviated by a Government stipulation that both were birds. So this portion of the opinion concludes:
“ ‘Let the long contention cease! Geese are swans, and swans are geese.’ The Scholar Gypsy. The Last Word, Stanza 2, Matthew Arnold.”’ (644 F.2d at 110.)
Judge Mulligan then made Short Shrift of the defendants argument that the trial court erred by not taking judicial notice of the Migratory Bird Permit Regulations, 50 C.F.R. § 21 (1979). The argument these regula-tions require the registration of all trumpeter swans; Mrs. Meffert admitted she had never registered the swans (and, indeed, did not even know of the regulations); therefore, “since they were not registered, Mrs. Meffert never possessed trumpeter swans.”’ The rejection (in kind); Mrs. Meffert testified that swans were not birds; therefore, the Migratory Bird Permit Regulations were irrelevant:
"... The argument is totally unpersuasive. Count II, charging appellant with false testimony that the swans were mute rather than trumpeters, was withdrawn from the jury. Thus, the relevance of the registration was minimal. Furthermore, Mrs. Meffert admitted that the swans weren’t registered. Therefore, the point was made and her conceded ignorance of the Migratory Bird regulations hardly establishes that she didn’t possess the swans which she didn’t consider birds in any event. The existence of the regulations was irrelevant and whether or not Mrs. Meffert violated them would only confuse the issue before the jury ...."
As supporting authority, Judge Mulligan could not resist citing the Small Birds Act decision: Regina v. Ojibway, 8 Criminal Law Quarterly 137 (1965-66) (Op. Blue, J.).(7) See “Judicial Logic Birds & Ponies,” Texas Bar Journal (October 1982).
But with all issues resolved, Judge Mulligan now faced a true dilemma. Surely, with his brilliant opening, he must have considered ending the opinion with The Shadow’s classic finale: “The Weeds of Crime bear bitter fruit. Judgment of conviction affirmed.”’ Instead, since this was Judge Mulligan’s final opinion — he resigned and returned to private practice in New York — the opinion, just as fittingly, concludes:
“The judgment of conviction is affirmed, justice has triumphed and this is my swan song.