United States v. Michael Curtiss

MEDINA, Before WATERMAN and Judges. MARSHALL, Circuit Judge. MARSHALL, Circuit Appellant was convicted after plea guilty to a two- trial on his of not charging only of “The Defendant: The evasion years dif- indictment count your Honor, ference, is that tax for the I have personal income through quite an ordeal in of 26 U.S.C. been in violation § .and this, im- months last months to nine few with and this He was sentenced right count, coming top it. sentences prisonment on each concurrently. review A to run O.K., “But I choice. that the us this record in case convinces go along.” will appellant deprived totality of error From the minutes of the conference requires a reversal fair trial appears had had three it attorneys that defendant judgment. pre-trial period, the Immediately prior to the trial defend being Kaplan Marshall who last one requested which was ant a conference judge appointed stated court. The judge’s com held in the chambers. He subsequently Kaplan ad- Mr. had plained had in an auto that he been not want him defendant vised months before mobile accident two preferred as to act him a go physically trial. was not able However, judge lawyer. re- judge questions After a series Kaplan quested in the court Mr. to sit accident and the to the details of the ad- to defendant and to be available alleged injuries, he asked extent of the vice. do. Defendant what he should immediately trial followed after giving replied by “state him written repre- the conference with the defendant concerning to have his efforts ment” senting Kaplan himself Mr. seated Attorney agree accept U. Assistant S. at the table with him. The Government’s payment plan deficiencies of the tax case consisted of several exhibits and judge this, prosecution. To in lieu of testimony. oral There was some cross- explained be a difference that there was objections examination and some to ex- responsibilities. and criminal civil tween by defendant, hibits all of which were following place: colloquy then took testify overruled. The defendant did not only witness, I don’t feel that a man “The Defendant: and called one who guilty intent, previously I feel I with had testified for Govern- I am trial, the ment. At the conclusionof the have erred. judge stated: Well, “The Court: is .situation, you “Let the record note the defendant have the choice conferring Kaplan, Mr. procedure, plead now with is (cid:127)either either assigned as a has guilty, whom the Court if feel that that meets lawyer, your and he has conferred approval, don’t or if throughout guilty, you him think are do what anybody to do.” entitled else does in similar circum- stances, your put position before inept efforts Defendant’s to make jury on the trial. opening statement, object to offers right, “The Defendant: All evidence, question and cross-ex Honor. witnesses, up, amine and to sum leave adequately rep no doubt that was “The Court: That what Therefore, question liberty resented. sole You have a .at to do. intelligently point your say case, you whether he can to have right to of counsel waived his assistance ex- take the stand see fit and if represent knowingly him plain your position chose to the laws recognize that, evidence, we the difficulties self. While it fits in with (cid:127)of if of this a trial faces situations other defendant and do what does. You are kind, posi- to counsel that the we in no different believe trial can criminal a federal tion defendant before than explanation charge. a clear-cut waived after on a «Court rights intelligent 44,1 to counsel as and an set forth in Rule the defendant’s nor is there a clear cut the choice. election exercise of de- best, At fendant. the court relied on a appears in the defendant “If Kaplan, Mr. statement made some counsel, shall the court without court trial, time the date of the before right to counsel his him of advise that did effect Curtiss not wish to avail assign represent him counsel his services.2 Curtiss’ himself state- stage proceeding un every of the at unhap- that ments indicate while he was proceed without less he elects py Kap- relationship about his Mr. counsel”. or is able to obtain counsel lan, certainly try had no he wish to Fed.R.Crim.P. but felt that had no case himself “he Indeed, “indulge every judge we must reason- Of course the choice.” need presumption against waiver,” appointed able other Mr. have counsel besides “presume acquiescence good cause, cannot Kaplan in the loss unless showed rights.” Gutterman, fundamental Johnson v. F.2d United v. 147 States Zerbst, 458, 464, 1019, (2 1945), 304 U.S. 58 S.Ct. 540 but it erroneous Cir. 1023, (1938). try 82 L.Ed. 1461 require See also: case with- him to Gillies, 708, Von Moltke v. 332 U.S. 68 he in- out a statement that clear cut 316, (1948). S.Ct. 92 L.Ed. 309 telligently to do so. wished if Even some There is doubt the record exists on the explanation question to show an effectively of defendant’s whether defendant alleged involving Kaplan represent you. 1. In a case defendant’s Marshall And right trial, present during Kaplan waiver of to be Mr. advised me sometime after Judge Wright Appeals you you of the Court of for felt that didn’t want your lawyer, you the District of : Columbia stated Mm to act as wanted your lawyer; “This means that where the defend- to act as own and under weighty available, accepted your ant responsibility’ ‘the serious and those I circumstances state- determining your whether ment. You have a to be own lawyer. he wants to waive a constitutional requires brought just your protection before the “But I have court, right, Kaplan advised of that and then asked Mr. Marshall to sit in court permitted intelligent to make ‘an and to be available to should ” competent any waiver.’ v. Cross United want advice from him. States, 629, (D.C.Cir. “Now, every opportunity, 325 F.2d have had 1963). great deal more than seems be the give case other situations. We can’t opinion defendants, 2. Much of the difference of different treatment to different interpretation procedures case concerns of the we have to follow out same colloquy in chambers between trial in all cases. judge, Kelly, prose- and Mr. “But in this I think we have done a clarity, groat more, great cutor. In the interest of we set deal have had a portion lapse forth the relevant of the tran- deal more of time and discussion script : about these various situations than has heretofore, “The Court: It is one of the oldest been the ease and we have oth- court, court, cases in this had a have er situations here in the and we many great lawyers just proceed normally different in the case have and come to n —I think dispositions four or five them. of cases. Kelly: Well, Well, Honor, “Mr. I know three. “The Defendant: ap- Kaplan, very strongly “The And I Court: Three or four. far as Mr. feel parently you keep very being Ms didn’t see fit to on with favor as far as it un- all, lawyers, point imagine, came to a Mm I and it fair act at proceed It’s I where we had to for trial. because have noticed a form of reluctance part. it, I been on the calendar number of times his don’t think he means indictment, filing but I do feel it as we talk. Then when I since May away finally something, do ask Mm he shies I think it was last when delay case, me, from him, he is reluctant —I don’t blame had been so much in the ready way I’d feel most of it because proceed weren’t mean the same Mr. does.” ficiencies. came defendant him to confine times ernment’s special proper statements fendant, comment ment lowing comments: inflammatory jection by During waived dence. duct and son of a defendant to defense sumption United States Constitution in whatsoever, the effectuation of this chair, were himself.’ defendant chooses not telligent how oath, inal before him gress oath, but the here is eyes, and tell sympathy; (Emphasis (cid:127)X- “The Fifth Amendment “I “Ladies trying relatively permit unequivocal to must be reversed sought may itself is reversible error. get and he asked a say Not significance where, there could and his has declared that the The sworn, address the but each on his the witnesses give has acted as ^[*] away ‘shall Each ‘be summation, jurors the against To summation, only him they prosecutor, supplied.) ishe bold and he pull compelled simple his protect excuses failure explain defendant prosecution admonished (cid:127)Js- with it. this they gentlemen, are time, to stand terms in effect constituted made prejudicial every face the argument strictly testify him.’ know that jury, be man here stands not lot counsel, create witness *X* testified matter —if to take wool over begs these statements his business are not testified lies, for his tax because that no any mistake in when one protection going own stood made the before questions.” Ordinarily, a I don’t any pre- faker, take provides to his own against here, failure attorney. his turn take under going the evi- crim- doion them your several your Con- on ob- per- stand, ^[*] judg- see in- let gov- con- is im- fol- de de- ment record was not Nor could it be case counsel, the Assistant United States mation with facts outside the United counsel in ing viewed as take cution was sustained with by of his Fifth Amendment regard Ed. The ant’s efforts 6 L.Ed.2d 84 summation.” is government or C.Cir. States, alternative go tor mitted.” Stewart v. United tactics. If 366 U.S. the Dugan prosecutor has about his 2d argument duct of defense counsel. A appeal to the trial court—not stand, States, to be argument unanswered counsel do not record, prosecution. 257 U.S.App.D.C. 238, F.2d 507 Cir. “We attorney fullest adequately involving government on the should be immune adoption 1962). overstepped, the admonition 308 U.S. States, When protected (1939); (1961). the Fifth Circuit stated: witness stand. This 326 Drug no comment or Appellant’s reply harmless error. except every 1, protection about failure that the conduct failure to concerning arguments was caused F.2d not (2 (1961); Cf. We do appellant unfair tactics 366 or of unfair used as Stores, Inc. v. United feels that his permitted argue charged 81 S.Ct. White v. United objection by regardless The cases cited contends that support to to Kyle impressed argument his 835, U.S. arguments of the defendant let these answer them in constitute waiver 60 1961). summation as failure against not 314 his was available testify Bruno v. 837 v. remedy S.Ct. 1, argued procedures.” on that the above com United by excuse to dis and the case in sum agree. F.2d 81 S.Ct. clear (1964). Attorney of the crime argument record improper opponent outside with the Stewart to the con- of defense prosecu- protection. This arguments “comment cannot be 6 L.Ed. States, testify.” is 243 defend rulings outside United States, States, by per- oppos prose point. 84 L. In a “left jury in 941, (D. his no v. weight robing majority charged room, is or the the evidence said in the charge. opinion by supporting the the statement Curtiss that “he had no choice” indicated that reversed, judgment pro he had no real desire to act se but newa trial. cause remanded for only thought did so because he “he had Judge choice.” MEDINA, (dissenting). Circuit say opening What majority My set to- would brothers jury judgment admitted he had elect- of conviction aside the toed grant (1) conduct said defense. The word it is new trial because: “elected” own. “a The record reads:: contains to show the record explanation” Bruchhausen clear “And the reason that I am counsel to have to Curtiss of taking and have elected handle him, is there to defend “nor my well, back, let me take that case— to con- a clear-cut election” Ladies and Gentlemen of the se; (2) pro certain defense duct his Honor—two reasons. The- prosecutor his sum- comments important most reason Iwas have- prej- “inflammatory and mation were strong feeling spiritually in God’s- udicial,” deprived and of Curtiss way— rights. Fifth Amendment The reference Kelly: Judge, “Mr. most reluc- totality majority opinion in to “the the tantly, going object I am to now to- comprises only of two matters error” the opening. just forth, inwas set neither of which Yes, “The Coui't: I will have to any brought way the of to attention you, infoxun Mr. that at this Judge a at trial. As Bruchhausen the you time should restrict re- exceedingly fact, an the case is matter of simple one, prove.” max'ksto what intend other no defense This “clear-cut” can statement no protestations of Cur- than the unsworn meaning other than that Curtiss knew pro tiss in his summation guilty se that was having lawyer had a choice between a intent,” wilfully, but “not not with assigned by conducting the Court or no it discloses the record as I view managing pro se, his own defense error whatever. intelligently that he had made the choice I eyes open. say and with his also I this- my respect for brothers due With all election, necessarily includes the- say I cannot at that must the outset right assigned counsel, waiver of a agree of in; of difference “[m]uch made, colloquy opinion inter- in this case concerns the day trial, chambers on the many of the but pretation colloquy of in chambers” enough weeks before. There is ini quoted majority opin- in footnote 1 in the this record to in demonstrate case, ion. On the facts of we are appearances course of the numerous be- apart poles. far as the Judge Bruchhausen, prior day fore trial, lawyers assigned holding of of the The substance of the defend and, majority Curtiss is that waiver in the withdrawal some assigned other, and the at counsel the election relief of least one it- plain se, any, place pro in must Judge took have been to Curtiss that defend if judge’s day Bruchhausen an ob- chambers on the felt under ligation assign colloquy and that the on that occasion counsel unless Curtiss- explana- failed show “clear-cut his own free to conduct decided of will Judge by tion” It is Bruchhausen of his by defense. in the statements- Curtiss’ assigned Judge anything Bruchhausen, by prosecutor" or else counsel especially to indicate that made intelli- an Curtiss himself gent colloquy choice between the two alternatives in im- chambers becomes lawyer lawyer. Indeed, portant, or no statements these referred quoting already place past, colloquy in from the same had taken what alternatively, quotation pages say, from that if there 13-14 col- of the also loquy chambers, perfectly plain the sub- possibly be doubt could going ject said what was to me that Curtiss was ahead with substance of judges by Judge or other the trial he had choice. Bruchhausen because no prior has on these occasions remark whatever to do with subject to elect between the whether Curtiss was to to his relative se, pro having lawyer toor act have transcript to defend himself. or jurisdiction over retain reads: we should judgment .appeal and remand from “The Defendant: I don’t feel Judge a re- Bruchhausen for guilty that I am intent, I feel of what took record construction I have erred. Perhaps prior place occasions. on these Well, “The Court: there is the original transcript notes least the or at situation, you have the- of Court choice may available, Reporter procedure, either plead either transcript although now. before us no guilty, if feel that meets transcript or are page transcript said. It of what was liberty are at to do. You have a that the Re- first observed Court to be your say case, to have in the porter appear- already noted the had you can take the stand if see including Curtiss, ances, De- “Michael explain your position fit and me This to Pro Se.” indicates fendant evidence, the laws of if it fits in with chambers, that, any colloquy prior in to that, any and do what other defend- Report- Curtiss had informed the Court ant does. You in are no different manage er that he would conduct position any than defendant before own defense. As the conference was charge. Court on a a Judge request Curtiss, at the of Bruch- Pages proceed. only “The hausen him to 2- Defendant: The dif- asked ference, your appears Honor, to what to be is that I have devoted through request postponement quite been in for of the ordeal another this, last trial been few with this Curtiss had in an auto- months because coming right couple top “the last on it. mobile accident Judge Then Bruchhausen months.” K., “But I no choice. I O. do, to asked what he wanted him Curtiss go along.” will read written statement Curtiss colloquy I find in in the cham- he tried effect that had settle sup- bers or the record as whole rejected matter, prosecutor had but port strong intimation the ma- 10-14, pages followed offer. Then acting jority opinion that was Curtiss pleading compromise Curtiss for lawyer against will, or as his own Judge explaining Bruchhausen the dif- reluctantly, understand- even ing and without liability” ference between “civil realizing would or that Court liability.” up This led “criminal to the assign lawyer him if he so to defend choice,” have no which the statement “I just Indeed, desired. the facts are majority to mean construes that Curtiss contrary. try '“certainly no wish had ” convinced that no After Curtiss became felt ‘he had choice.’ himself but following putting off the he not in the would succeed in context When read trial go that he had no choice but to below, duct at the discussed as well Judge ahead, Bruchhausen referred as his admission that he had “elected case, fact that of the this one oldest to handle” his indicate not that on Dis- cases the docket the Eastern deliberately Curtiss made the choice York, eyes open, New and this led to some trict of with his but also that he made subject on of the design discussion number trying decision lawyers already pro who been as- had to do counsel se what knew no signed There was do, defend Curtiss. say, would dare to that is to assigned. not repeated Mr. Wales did Curtiss make statements of fact that deny Mr. re- wholly Wales had asked unsupported by any sworn Judge lieved, deny testimony. nor did he Bruch- statement, colloquy in hausen’s in the upshot colloquy of the in chambers chambers, come be- had the matter day Judge trial was that Bruch- had said to him and Mr. Wales fore Judge hausen said: presence Bruchhausen, in the just your protection “But cooperate not Kaplan have asked Mr. Marshall Kaplan also him. Mr. Marshall had sit in court and to be available assigned un- and the been circumstances any should want from advice described which he withdrew are der him.” Bruchhausen, in the follows objection made In- this. colloquy: same deed, appeared to have welcomed the “The Court: Three or four. And suggestion, Kaplan as Mr. sat Cur- beside apparently keep fit to didn’t see tiss the entire trial and conferred lawyers, on with and it with him from time to time. But he was point pro- to a came had to where we counsel.1 Curtiss conducted ceed trial. It’s the cal- been pro the defense se. am to un- at a loss endar number times since meaning derstand of the statement filing indictment, majority opinion in the efforts finally May I think it when was last of Curtiss to conduct his “leave defense delay in the had been so much adequately rep- no doubt that he case, and most of it because “in- resented.” Nor were his efforts ready trial, proceed for weren’t to ept.” appear shortly, did his As will assigned Kap- that Mr. Marshall cajole best to the into verdict represent you. Kap- Mr. lan to And guilty in was in which there after that advised lan me sometime already in no defense and which had you didn’t want that felt that guilty. everything pleading done short of lawyer, your and to act as him Curtiss, So I conclude that an intel lawyer; your to act as own wanted ligent thoroughly person, articulate and I ac- and under those circumstances as understood have counsel cepted your have a You statement. signed him, defend knew and he also lawyer.” be Judge thought he Bruchhausen deny any ought lawyer Curtiss did not him. these to have to defend state- eyes by ments the who decided with his Court. this can mean It was How anything knowledge open other than with full with and knowledge assigned lawyer rights, to man full to have a of his and counsel, pro prior age He long se. had elected to the trial his defense conduct and manage defense, supposed to do and what a was conduct knew mystery Moreover, law his con- it meant to act as his own to me. and what Judge say, Kaplan at the Mr. 1. clear While Bruchhausen might legal quoted give in such advice as Curtiss conclusion assigned give. majority opinion, was con him to He was not that Curtiss ask ordinary ferring Kaplan, was not “whom the in the and counsel conducting sense Mr. lawyer,” managing and the defense. has it Court as a

285 years yer. payments 1955 these in the and If under these circumstances reported by permit 1956 were the contractors Bruchhausen had refused to Cur regular Form pro se, tiss to Government defend this indeed would major part receipt 1099. The have been reversible error. Fed.R. See by proved 44; Johnston, 1948, income was the checks Crim.P. 334 Price v. by and 266, 285, certain books rec- themselves U.S. 68 92 L.Ed. S.Ct. 1356; ords that received in The evidence. Adams v. United ex rel. States McCann, 1942, 269, 279, result was return 1955 showed 317 63 U.S. S. $38.32, whereas, a taxable income ac- Ct. 87 L.Ed. 268. cording expert testimony based on II previous testimony oral exhibits evidence, $14,687; in it should been proofs following The disclosed the in- and the 1956 return showed taxable scheme of tax evasion. an Curtiss was according $27, whereas, come of independent improvement seller of home testimony, expert have been it should by contracts. The actual work was done due, $5,417.50. the 1955 In terms of tax contractors, George Building several St. payable income tax return stated the Corporation, Homes, International Le- $7.66, stated be return high Corporation, Sales and Service payable to The Govern- tax be $5.40. separate companies a series of owned computation showed tax deficiencies ment by a man named Source. Curtiss went aggregating $4,624.- for 1955 got from door to door and orders for improvements. miscellaneous home These orders questions matured into contracts In view of the formulated signed by George the homeowners and St. Curtiss and his summation statements Building Corporation, attorney, International as his own which reference Homes, Lehigh shortly, par- Sales and Service Cor- will made be the matter poration, companies. relevancy or one of Source’s ticular interest compensation adopted by of Curtiss the dif- means Curtiss to defraud agreed price ference between the contract out his returns Government. He made paid entering pay- homeowner himself. Instead of plus received, cost to the contractor a reasonable ments fact constituted profit gross income, to be fixed contractor. he used the taxable representing printed appearing result was a series of checks returns matter on the payments pay- appear to Curtiss. These to make such a manner as and, independent ments constituted his income contractor. that he was exception earnings of at least some returns the Thus in the 1955 name, aggregate following appeared: under an assumed items receipts allowances, Total less rebates returns..........................., $20,704.00 $23,440.00 . goods 17,580.00 15,528.00 Cost of sold.................... . profit........................., 5,860.00 5,176.00 Gross . 1,918.00 expenses 2,042.00 Business . ................... profit........................... 3,258.00 3,818.00 Net . Itemized 231.00 deductions................... 779.68 Exemptions 3,000.00 3,000.00 . .......................... 27.00

Taxable income....................... 38.32 5.40 Tax................................. 7.66 figures representing receipts in the matter included in some total indicated gross profits appear questions put of his to the revenue to have been pulled agents, They were, out the air. as he “estimates.” of copies pie In- When he received who I was with.” From time to time interjected formation Returns on Form he comments, he “I such as am trying show, to the contractors and in- Honor, went around Your that it isn’t although down, so, gentleman saying.” them to cut them duced what the Later originally they ex- were accurate. For questions he became and in his in- bolder original figure ample, 1955 in general for cluded statements that it awas got $15,588. practice myself” Curtis 1099 was Form “for men like supplying $4,960, actually money the new reduced “credited” with but not figure it, type himself. receive and that the men who of worked with him were difficult to locate proved In addition was that he con get receipts and to from to show ex- part of ducted his activities with con penses. this, course, All of without using tractors M. fictitious name testimony shred sworn to the effect Caron, which he insisted at the trial working him that he had canvassers spelled should have been Caran. Indeed, paid anything. or that he them way actually conducted prosecution’s he at the close way prepared he the re- business merely recalled one the Government’s proved by testimony turns of one taking the witnesses and rested without Agents the Internal who inter- Revenue stand his own defense. on several occasions viewed him investigation course of that led In his op- summation Curtiss had the to the indictment. portunity looking he had been forward attorney to. What Curtiss did as his Gentle own hints the trial give jury impression effect that that he he should confine himself actually never intended to defraud the evidence were brushed aside with- Government, subjecting ceremony.2 things without out himself He said all the might penalties to cross-examination he and to the have testified to had he chosen perjury, remarks to call what led himself a witness. He ex- n prosecutor plained business, in his summation that the nature my incurring expenses, peculiar brothers characterize as “inflamma- infringing tory prejudicial” young my years,” and as “habits and traits from n Curtiss’ rights the Fifth Amend- how his schedule so “disordered time disarranged” ment. that it was difficult to got figures keep records, and how he Throughout the trial cross- put in the returns. told the He examining lawyer, witnesses as continuallyput money he had to hire accountant questions material in the enough obtaining hard time had a give impression of honest mistake many money on. After more to live By rather than fraudulent evasion. character, general statements of this say this,” say “didn’t I and “didn’t I supported none of which was that,” questions addressed Revenue testimony, he sworn concluded: Agents testifying prosecution, for the sought only thing appear to make it “The I know here .amounts stated the returns state that I know I made these accurate,” guilty errors, intended to be “true and (cid:127) —I am of these guilty things, that he made “estimates” because he know am of all these could“not figures get peo- wilfully, true from the but not not with intent.” majority opinion In the it is stated with There was no sworn proof or other evidence support any reference to the statements of fact in the of these statements. by objected time, Occasionally prosecutor summation “Each Curtiss: and objection judge by prosecution on ad- Bruehhausen admonished Curtiss to argument evidence, monished him to confine confine but Curtiss himself suggest paid lip I the evidence.” the whole to these instructions service doing very thing summation was a series of factual state- and went ahead might ments to which testi- have he was admonished not to do. fied under oath had chosen to do so. he

287 epithet say, the same said about reference a de Needless guise being fendant who under a procuring and inaccurate In- the false lawyer pro keeps making se, Returns, of a false statements or the use formation throughout the trial that are “bold-faced name. „„ When , ,, , Perhaps at lies.” we have arrived . prosecutor his turn came the 0 make int where defendant se can chapter proofs, and outlined the fa]ge irresponsible number of giving; strictly a “is He verse. said prosecutor must statement while the trying pull faker, the wool over is innuendoes. restrict to innocuous himself summarizing eyes.” After haye TBut do not think reached sucb we intent, overwhelming proof of fraudulent following prosecutor state- made equally am aat loss to see in supposed “inflamma- to be ment fringement rights appellant’s infringe- tory prejudicial” and an the Fifth Amendment. rights See Smith v. under the Fifth ment of Curtiss’ States, Cir., 1956, 385, United 5 234 F.2d Amendment: D.C.D.Nev., ,. , 388-389; Redfield, ¡(T ij. United States v. 197 T .i gentlemen, 1961, Ladies and I don t see how there could be mistake 575-578, Cir., F.Supp.559, affirmed,9 F.2d 249 cert. 295 whatsoever, and I know that as in denied, 1962, 803, 369 U.S 82 S.Ct. 6 , telligent jurors you going & 4 2 prosecutor 7 L.Ed.2d - 550. All the permit Z you ; , j. him to stand . before * ± to the fact ± ^ ±1. * 1 n , bold-faced „,, ,, - . was to advert that Curtiss- , , his own , , , , lies, tell . . not under ., relying ,, ,, , statements, was . made ,, ,, , , oath, . as the witnesses « testified tt 'argument, , - the course of so-called A1 the , chair, A, every each and one of . ... ,, , while the m real evidence the case was- . -i , ,, ., sworn, they . them were un- testified , , ,. , given by - .. „ the witnesses un- . but who testified X. . t ,, , „ oath, -¿ a¿ der defendant stood ’ t> i Baker v. Tr United t o States, . der oath. See n down here and he asked a lot of 8 , Cir., 1940, 533, 543-544, 115 F.2d .. c ml The questions. questions ^ were de- e r t . S.Ct. , , denied, 894, . . 325 U.S witnesses, med 8 , L.Ed. 2005 These not. statements were ^ ., ,, , , questions - later m- . . remember are not « . . , ,* , , evidence, ¿i* .. . as the trial , , , ,. Anything *¿t evidence. the defendant . T- X1 , , , jury, .j objection, structed the . « without and’ ,, , said from down here not evi- was \. , they ¿T the reason . i were not evidence was- ii. ,, , telling dence, ¿¿ ¿-^ i¿ ¿t I „ the same as what am t oath, they ¿ that ,,r . * were not testified to under i , , ,, ¿* is not evidence. now .« acting pretty pass if, We have come to a lawyer, as his objection a defendant in crim made to statement No go say inal request case can a. prosecutor, in- ahead and no for an testified, things disregard jury it, he could have struction to the defense, to in his own and then accuse1 motion for a mistrial. _ violating prosecutor , , , ,, . Fifth . what I fail to understand rights prosecutor Amendment when the prosecutor s about summation that telJg belieye w but inflammatory preju or yerdict Qn teg. rather their to render 3 Certainly it cannot ‘inflam dicial.” witnegs.. timony giyen under oath ^ matory bold to call defense witnesses eg tegtify> who did proper to call faced liars.” And if judgment appealed' liars,” I would affirm the witnesses “bold-faced defense wrong to use from. do it can be not see how Dugan lating quite to matters which occurred out different from 3. This ease is States, presence jury, prejudicial Drug Stores, state- Inc. v. United colloquies Cir., 1964, between counsel in which the ments 326 F.2d improper counsel, aggravated persistent prosecutor’s between court and argument accosting closing outside the- which went misconduct witnesses, related charges groundless witnesses, implied record and made threats presence inferences. re- unreasonable remarks in the notes If such your approval, or if don’t hearing for the existence, be held could guilty, you think do what Judge giving purpose Bruchhausen anybody else does in similar cir- the record. opportunity to reconstruct cumstances, put your position prior to the commencementof the Just before the trial. trial on November there was right, your “The All Defendant: in the chambers of conference Honor. a 19 have before us Bruchhausen. We “The Court: That is what

Case Details

Case Name: United States v. Michael Curtiss

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 31, 1964

Citation: 330 F.2d 278

Docket Number: 28112_1

Court Abbreviation: 2d Cir.