*1 Bursten, (5th 453 F.2d v. States denied, 1971), cert.
Cir. (1972); Desmond v. L.Ed.2d 83 (1st 226-27 Cir. 345 F.2d
1965). review of this rec- from our
We conclude guilt strong that the evidence
ord be affirmed. should
the conviction America,
UNITED STATES
Plaintiff-Appellee, and Fred H.
Philip A. McLENNAN
Bender, Defendants-Appellants.
No. 76-2365. Appeals, Court
United States
Ninth Circuit. 19, 1977.
Oct. En Banc Rehearing
Rehearing 2,1977. Dec.
Denied
provided covering “project for loans costs” incurred a borrower and concurred in prohibited profit-making by HUD and borrower. Architectural costs were limited for the actually “necessary” those con- the particular project being struction of *3 funded. October, 1971,
From to April, $961,282 defendants received a total of HUD, they repeatedly from which repre- applications, through sented in loan owner- architect in agreements, requisitions fund decertifications, project and in final costs Roberts, Sepenuk, M. Norman Leslie being paid payable project or archi- Portland, Or., defendants-appel- argued for tect, reality, Dahlen. In Dahlen Charles lants. independent was not an contractor as HUD Portland, Blackman, Atty., Marc U. S. believe, was led to but rather a salaried Or., argued plaintiff-appellee. of the defendants. After employee paying salary expenses, Dahlen’s and the defend- money ants divided the remainder of the fees, received from HUD for architect’s CHOY, DUNIWAY, ELY and Cir- Before $600,000, roughly between them. These Judges. cuit charges criminal resulted from their false money pay statements that this was to or DUNIWAY, Judge: Circuit pri- Defendants’ paid to architect. appeal McLennan and Bender Defendants good in mary they defense was that acted (1) them of judgments convicting from faith, intent re- lacking specific thus a matter within false statements in making applicable to violate the statutes. quired agency jurisdiction department of a part theory, they As of that claimed that at state- (2) making false of the United they all times had acted on the advice of influencing purpose ments for the accountants. counsel and Housing and Department action of the raise two the defendants appeal, On (3) and con- Development (HUD), Urban (1) testimony whether certain issues:1 and to make such false statements spiring irrelevant; hearsay and and inadmissible States, all in viola- the United to defraud in (2) the district court erred its whether 371, 1001, tion of 18 U.S.C. §§ concerning the dis- instruction to the affirm. (1970). We of the indictment. part missal of FACTS Hearsay Alleged Statement. I. years through de- During challenge Defendants the admission of fendants, non-profit corpora- two through attorney of their certain former tions, for loans from HUD applied (1) it was inadmissible grounds on the 1950, 12 Housing Act of U.S.C. College (2) irrelevant.2 hearsay, (1970), purpose for the seq. 1749 et §§ Bur- college attorney, former constructing seven The defendants’ designing nett, The Act the advice which facilities in four states. testified about dormitory fore, remaining we will deal with the two .originally in this raised 1. Three issues were However, January appeal. argument issues. oral 12, 1977, attorney defendants’ “waived for challenging purposes” privi- attorney-client the instruc- the issue all 2. Defendants waived given testify. on “motive” and “intent.” There- lege tion to allow their former motion for a new trial conclud- defendants’ made them. The given be- hearsay that the statement was not challenged, ed being Burnett, which is now something prove cause it was offered to exchange on following in the elicited said, other than truth of what was government. examination direct 801(c), and therefore was ad- Fed.R.Evid. aware, 1971, that Now, you were Q. right. He was missible. an from being paid were funds Dah- of Charles account name auditors In late defendants’ raised Mr. McLen- len to Mr. Bender and defendants had done questions what that, nan? doing ac- moneys and were with cording to certifications defendants’ A. No. HUD, go architect. One were 1972? you aware of Q. Were Burnett, called in thereupon the defendants No. A. incident quoted and the resulted. of that aware Q. you Did become *4 time, to be re- moneys At that were still 1973? HUD, de- ceived from and thereafter the 1973, yes. In late A. again fendants certified to HUD that a percentage moneys
named claimed did Mr. Bender Q. you When learn from go of were architect. Two the transfers, specifi- you about these do indictment, counts in the Counts VII and said cally you recall that what it was VIII, relate to certifications. those false to him? The exclamation asser- was not a mere Yes. A. told attorney tion that he had And what was Q. it? In something past. defendants sake, you made, A. “For Christ’s I told that circumstances in which it was illegal.” Transcript was (Reporter’s advice, attorney having been called in for 407, 409) having just and one of defendants told doing, were the state- they really him what good Defendants their claimed clearly ment would tell the defendants: upon faith reliance advice of counsel or so telling you illegal,” “I’m now is an negated the fraudulent intent that was previ- jury could find. The reference element of Advice of charge. essential advice, sur- attorney’s ous and the obvious counsel is no defense unless the defendant prise dismay strongly and reinforce his gave attorney facts, his and un all of the strong- making his even opinion, statement less counsel the course specifically advised said, “That merely er than if he had is of conduct taken Bisno defendant. relevant illegal.” The statement was States, 711, Cir., 1961, v. United 9 299 F.2d notice; asser- merely it was not an present 719-20, denied, 952, cert. past tion of notice to the defendants. 1602, 8 L.Ed.2d 818. Moreover, not of was the statement rules, Under questions these the truth of prove fered or admitted to and answers about Burnett’s awareness of ac defendants’ what Burnett said —that 1971,1972, the facts in were and 1973 clear past he illegal or that in the had tions were Moreover, relevant. ly because Burnett simply is illegal” told them “That —but knew, when, speaking what he concerning illegali the statément show that hearsay. answers were Defendants his not the defense is made. When ty had been disagree. do not counsel, whether given, advice advice in it are not, recitals They concentrate their fire on correct or whether Usually not, admissible. quoted clearly always answer above. It was is last true or is raised of counsel damaging to their defense of advice the defense relevant Thus, illegal. is attorney’s involved upon faith reliance where conduct good upon relied the advice The issue is whether it was admis definition advice. almost given and denying the but Judge Skopil in his order been erroneous sible. will have Freeman, In the statement was not elicit- upon good relied faith. The words spo ken are the advice given. Advice is custom ed to show upon its effect the court but words, arily given and when advice is the rather to show that Freeman knew the date the words which question, constitute the of the court appearance. The statement acts, are examples advice classic of verbal relevant if it showed that they spoken, admissible because were attorney Freeman, client, did tell when whether true or false. Such verbal acts are to appear. At issue was the very truth of in to hearsay. They bring come home Here, the matter asserted. in a notice to the defendant case like this. was offered to show its effect upon Kutas, Cir., 1976, United States v. Here, defendants. it is the fact Phillips 528. also v. United See made, truth, statement was not its is States, Cir., 1965, 297, 301, 356 F.2d cert. relevant and That is precisely material. denied, Walker sub nom. v. United recognized by distinction the court in Free- 1573, 16 86 S.Ct. L.Ed.2d U.S. man, supra. Our case is like the case that Thus, if the “I had added: the court in Free- have been before them that I had discussed this with told “[cjounsel man if in that case . matters, expert in these attorneys several appellant asked whether he advised me that that they agreed and that all with appear May the order that she 20th admissible, too would be illegal,” response An affirmative or not the witness’ statement of whether what he had been question what he had done and . . . would not have [that] a statement told was true. It would still be subject hearsay.” been to attack as *5 given. the advice he had attorney Moreover, the fact statement Freeman, Cir., 1975, 9 v. United States compelling was made was also evidence 67, supports 519 F.2d also this conclusion. November, 1973, that before Burnett was case, appealing In that Freeman was her not aware that the defendants had been jumping” conviction for “bail which was personally appropriating architect’s upon appear based her failure to in district attorney’s fees. It shows the lack of knowl- major specific court on a date. A issue edge the defendants’ activities. knew the district court was whether she From this could conclude that the appear that she had been ordered to on that fully defendants had not informed their asked, oath, date. Her under attorney lawyer of all the material facts when they previously whether he had stated to the advice, soliciting were thus undermining court that he had told his client when she their defense of reliance on the advice of appear. was scheduled to We said: States, 1908, counsel. v. Williamson United Counsel was not' asked whether he had 425, 453, 163, 278; 207 28 U.S. S.Ct. 52 L.Ed. appellant advised of the order that she Bisno, supra, at 720. Because Burnett’s 20th; instead, appear May he was testimony was offered to show both defend- whether, date, on that he had stat- asked knowledge, ants’ and Burnett’s it was not ed the court that he had so. An done hearsay, proper.3 and its admission was response ques- affirmative to the former tion, insofar as it constituted evidence argue also that even defendants writings utterances and offered to show if the statement was admissible to show reader, would the effect on the hearer or intent, the court should have instructed the subject not have been to attack as hear- jury that it was not considered for See, McCormick, to be say. g., e. Evidence (2d 1972), at 69.. 249 ed. 519 F.2d truth of the matter stated. Defense coun- § being prove the evidence was not admitted to 3. Burnett had advised McLennan and Bender (a were, indeed, violating how to avoid that McLennan and Bender vio- case, see, charge lating merely which was dismissed from the but to show infra, II). testimony, particular, given them, His Part and in what advice their here, being challenged charge the statement was refer- dismissal of the did not ring regarding admissibility to his advice that Act. Because affect the of that statement. 948 precedent there are conditions two
sel,
objecting to the
although
answer
under
hearsay
admission of a
statement
trial,
never asked
moving for a new
exception:
“First,
“excited
utterance”
limiting
such a
instruction.
give
the court
there
occurrence
must
some
event
argues
He
that such
be
105.
Fed.R.Evid.
now
sufficiently startling to render normal re-
a
have been “futile” because
request would
processes
inoperative.
thought
flective
ruled that
the trial court had
the statement
Second,
of the declarant
the statement
“futili
hearsay. We fail to see the
was not
a spontaneous
must have been
reaction to
said
a motion. The court had
ty” of such
or event and not
result
occurrence
limiting
because
nothing about a
instruction
McCormick on
thought.”
reflective
Evi-
give
he
asked to
one.
had not been
Noth
Thus,
297,
p.
dence
2d Ed.
704.
when a
ing
making
counsel from
such
prevented
hearsay
is offered
this ex-
case,
In the usual
the court is not
request.
prelim-
must make a
ception, the trial court
give
such an instruction sua
required
inary
factual determination that
declar-
States,
Cir.,
v. United
9
sponte. Benson
distraught
ant was so excited or
at
576,
1968,
places
402 F.2d
581. The law
moment
that he did not
of utterance
reflect
to ask
v.
upon
duty
for it. Sica
counsel
reflect)
(or have an
on what
opportunity
States,
Cir., 1963,
831,
325 F.2d
Skopil
made
saying. Judge
no such
denied, 1964,
952,
836,
376 U.S.
84 S.Ct.
cert.
record is hardly
here. The
determination
970,
972.
11 L.Ed.2d
See United States
Moreover,
sufficient
us to do so.
Cir., 1972,
529, 531,
Campbell, 9
notes,
courts
McCormick
“Most
denied, 1972,
1062,
cert.
U.S.
S.Ct.
skeptical
probably
extremely
re-
516;
571,
Petley
34 L.Ed.2d
v. United
garding
merely
whether one
informed of an
Cir., 1970,
427 F.2d
upon hearing
event could
so excited
become
denied, 1970,
cert.
of it as
power
to lose the
reflective
and that say not correct to that Burnett’s entities, ing. It is I Q. Now, setting up these in strongest evi- dismayed statement was the it were concerned with you take illegality and of defendants’ dence of sure that the defendants making fact, Copeland knowledge. In improper? anything didn’t do is a matter of law that the Court had to charge part was a minor of the case. The only conspiracy Act is referred to in the determine. It’s no you, concern to as far count, I, portion then Count concerned, as the facts are with reference in a quoted supra, subparagraph footnote to the remaining counts. of 7 lines in 14 pages a count of that stated I you So wanted to advise of that in view just in what the defendants had detail done. of the fact those matters are not remaining None of the counts refers to the now before jury, you might have through Act. Counts II V refer wondered why attorneys were not to 18 U.S.C. 1010—false statements to § talking matters, those but they HUD. Counts VII and VIII refer to 18 have been taken away you, from purely 1001, the general U.S.C. false law, as a matter of and has nothing to do section. with the factual determination which you apparent It is that the Copeland Act lan- are to make on the other counts. [R.T. guage in the indictment was protective a 937-38] charge, one intended to forestall a defense Defense object. counsel did not deposit money the Dahlen When the prosecutor’s opening argument payment revenue account was in fact a is considered in entirety, its the one refer- Dahlen, who then do with it could as he ence to the Copeland Act was properly used pleased, payments so that to defendants to support general theory that the de- them, from that account were Dahlen to not, faith, good fendants did follow their cover-up simply keep- instead a for their attorney’s advice, and it evidence, however, part was a minor ing money. argument. got already that Dahlen never As I have indi- money cated, place, first although repre- the defendants statement was admissible for sented to the government purpose, that he was to and the asking burden of get gist it. That is the of the charge; limiting a instruction which would have al- indictment; is the theme of the that was leviated this “problem,” of which counsel the theme prosecutor’s argument; much, now makes so rested with the de- is what this really case is about. fense. The court was never asked defense Even assuming jury might that the have to instruct “comprehensively” or drawn an improper conclusion from the ref- “in detail” about the Cope- dismissal of the erence to the Copeland problem land reference in I. Count Defense eliminated the trial court’s instruc- suggested particular counsel never any Judge Skopil tions. jury only told the what specific language subject. on the Before it must find to convict under the charges the case argued jury, the court remaining point in the indictment. At no instructed them as follows: was the jury findings justi- told what There is one matter that I do desire to fy a conviction under the Act. up take with you prior to the time that All jurors that the applica- knew about the they argument, start and as a mat- ble law judge was what the trial clearly and law, ter of the Court has taken certain correctly explained to them. To those in- portions of the indictment away from the objection. structions there was no In addi- jury’s consideration and those matters tion, copy indictment, with all will not be by you. considered references charges to the dismissed deleted recall, you As eight-count was an given jury. objec- There was no indictment. It you was read to at the tion. possible prejudice. There was no I, start. Mrs. you. Hui read it to as a circumstances, Under the is unneces- law, matter of have taken VIII Count sary charge whether the consider away from the jury’s consideration and improperly Act was dismissed. also have taken portion Count
away from jury’s consideration. That Affirmed.
952 (1966) 210 (decided prior L.Ed.2d to concurring special-
CHOY, Judge, Circuit date of Federal Rules of Evi- effective ly: dence). McLennan that the convictions agree I I would affirmed. Bender should be and however, upon re- fundamentally, More result, however, dif- for reasons
reach question validity I now flection Duni- by Judge from those advanced ferent in Freeman holding that a declarant-wit- way. hearsay.2 is Al- self-quoting ness’s in fact that, as a though commentators maintain
Hearsay
principle,
ap-
“orthodox
general
under the
Duniway’s
self-quotation
technically
such
is
proach,”
Brother
unpersuaded
I am
controlling
its con-
hearsay
if offered for the truth of
attempt
distinguish
Freeman,
tents,
Berger,
v.
519
4 J.
M.
of United
see
Weinstein &
States
precedent
there,
Here,
(9th
1975).
801(d)(l)[01],
as
Evidence
67
Cir.
Weinstein’s
H
“I
(1975)
the words
cited as
statements contained
801-64 to -65
involved
[hereinafter
therein,
“advised”), and thus at
I
(or “stated” or
and authorities cited
told”
Weinstein]
portion of the declarant-witness’s
have found no case other than Freeman
least that
holds,
be said to
itself cited
out-of-court utterance cannot
which so
and Freeman
offered
the nonhear
none. The reason
void
merely
precedential
have been
for
for this
notice,
that characterization of declarant-
previous may
sáy purpose
proving
its re-
very
self-quoting
hearsay
truth of witness
notice in
context is
as
—and
usually
this statement
exclusion on that
the matter asserted:
sultant
basis—
previously
may
by offering
was in fact
uttered.1 On
be avoided
the statement
de
correctly
prove
that Freeman was
the truth of the matter assert-
assumption
not
therein,
cided, therefore,
in the
or
testimony
prove
Burnett’s
ed
but rather
notice
such,
alleged
as
hearsay.
knowledge
part
instant case
Even
on
of someone
however,
Be-
(or read)
I would
that it is admissible
heard
the statement.
hold
to have
Fed.
“I
exception,
component
under the excited utterance
cause of the
told”
Bell,
however,
Freeman,
such
803(2).
statements
R.Evid.
See United States
868,
1965),
unavailable,
the evi-
cert.
and
(6th
351 F.2d
872-73
Cir.
treatment
1200,
denied,
947,
hearsay.3
dence there was held to be
Freeman’s
Ms.
stated what he did to
Duniway’s
may
Judge
misreading
1.
of Freeman
may
bail-jumping proceeding
in that
in the
stem from
focus of his attention
the court
irrelevant,
quotes
following language:
possibly
opinion. He
well have been
should
have been excluded
that basis. But
on
he had
was not asked whether
Counsel
hearsay
objection
clearly
is
based on
not one
appellant
ap-
that she
advised
of the order
principles.
hearsay problem
The
would arise
May 20th;
instead,
pear
was asked
when,
if,
only
parties
third
to whom
whether,
date,
on that
to the
he had stated
spoken
to corrobo-
declarant
were called
that he had
An affirmative
court
done so.
testimony.
rate his
response
question,
insofar as it
former
and writ-
constituted evidence of utterances
The Freeman court
further in that
2.
went even
ings
hearer
offered to show the effect on the
apparently found
to have
it
some statements
reader,
subject
have been
hearsay by
adoption,
been
for the witness’s
McCormick,
hearsay.
See,
g.,
testimony
attack
e.
in one
instance consisted
(2d
1972).
Evidence
“yes”
ed.
prosecutor’s question.
answer
however,
overlooks,
at 69. He
519 F.2d
Judge Duniway
very
Burnett’s self-
next sentence:
characterizes
act,
example
response
quote
latter in-
as a classic
of a verbal
But an affirmative
not,
turn, hearsay,
response
clearly
citing
quiry
given
is
here
which
—the
—was
Kutas,
(9th
offered
States v.
542 F.2d
Cir.
evidence
out-of-court
statements
States,
1976),
Phillips
prove
356 F.2d
matters asserted
v. United
truth of the
(9th
1965),
sub nom.
Cir.
cert. denied
therein.
(footnote omitted).
v. United
U.S.
86 S.Ct.
Walker
Id.
difficulty
may
(1966).
possible
953
safeguards,
the declarant-witness
is
that,
holding
if the
in Freeman was
believe
issue,
compels
on this
the same
trial,
oath,
correct
present
at
under
subject
here.
result
cross-examination,
he
and
affirms the state-
ment as his.5
generally
See
McCormick on
in Free-
reject
assumption
I would
(2d
Cleary 1972).
Evidence
ed.
man and do
with its rule that makes
away
that,
cases,
in all
would hold
declarant-wit-
(1)
self-quoting
hearsay
declarant-witness
that,
ness self-quoting
hearsay,
is not
or
if
(possibly
rarely
because it is so
encountered
it is
under
technically hearsay
the definition
equivalent
in the context of “I told”
801(c), it
of Fed.R.Evid.
should be admitted
statements),
(2)
problem
because the
is so
pursuant
to the “federal
common law”
ques-
framed
easily
by
properly
avoidable
hearsay exception provisions
803(24)
of rule
information,
tion which elicits identical
and
event,
owing
independent
to its
indicia of reliabili-
(3) because,
the rule is with-
any
justice.”6
logic4
ty
or the
and
serve the “interests of
policy
out foundation either
4 Weinstein at 803-250.
hearsay
considerations which underlie
See
prior statements as substantive evidence to the
hearsay
knowledge exception to the
rule. See
Kutas,
(“[t]he
present
801(d)(1)(A)
F.2d at 528
statement was
two contexts of
rule
and
as evidence from which it could be
(B) prior
admitted
given
inconsistent statements
—
knew”); Phillips,
inferred that
oath,
[defendant]
prior
and
consistent statements offered to
(“[t]he
question
at 301
documents in
were
charge
improp-
rebut a
of recent fabrication or
jury’s
received ...
for the
consideration
er motive—and not to differentiate between
determining
whether one or more of the
party
testifying
whether a third
is
as to what
knew”).
application
defendants
While
of the
then-present
declarant had said or whether
uniform,
concept
act
is
verbal
less than
see
testifying
the declarant himself is
as to what he
-60,
generally 4 Weinstein at 801-59 to
it is at
said.
questionable
least
whether the cited authorities
suggest
The Note and commentators
that the
Moreover,
apposite
render it
here.
resort to
permit
prior
reluctance to
the admission of
analysis
verbal
obscures the fact that notice
act
out-of-court statements of a witness notwith-
here,
clearly
is
at issue
and that
the notice
standing
present availability
for cross-ex-
exception is unavailable where the truth of the
grew
amination under oath
from a fear that
component
“I'
of
told”
the statement
is the
by fraudulently
such a rule would lead to trial
truth of the matter asserted.
prepared deposition
See,
testimony.
g.,
e.
appre-
can,
Weinstein
801-68 to -69. Such an
4. An absurd result obtains: a witness
hension, however, goes
any possible hearsay objection,
condemning
more to
without
relate
seen, yet
what he has
memory
the ethics of the federal bar than
he cannot relate what his
to violations
policies underlying
hearsay protec-
tells him his own mouth said.
It is as
eyes’ sensory input
Compare
supra.
if one’s
to the brain is
tions.
note 1
admissible,
but
as to one’s mouth’s
803(24) provides
following
6. Rule
sensory input
the brain is forbidden.
hearsay:
not excluded as
apparently
understanding
5. Such is
also the
specifically
A statement not
covered
Advisory
Proposed
the federal
Committee on
any
foregoing exceptions
having
but
expressed
ambiguous
Rules as
in a somewhat
equivalent
guarantees
circumstantial
commentary to rule
which became effec-
trustworthiness,
if the court determines that
tive after the trial in Freeman :
(A) the statement is offered as evidence of a
controversy
Considerable
has attended the
fact; (B)
pro-
material
the statement is more
question
prior
whether a
out-of-court state-
point
bative
on
for which it is offered
by person
ment
now available for cross-ex-
any
proponent
than
other evidence which the
it,
concerning
amination
under oath and in
procure through
efforts;
can
reasonable
fact,
presence
of the trier of
should be
(C)
general purposes
of these
rules
hearsay.-
classed as
If the witness admits on
justice
the interests of
will best be served
the stand that he made the statement and
admission of the statement
into evidence.
true,
adopts
that it was
the statement and
However,
may
a statement
not be admitted
hearsay problem.
hearsay
there is no
The
exception
proponent
under this
unless the
problem arises when the witness on the
party
it makes known to the adverse
suffi-
having
stand denies
made the statement or
ciently
hearing
in advance of the trial or
having
admits
made it but denies its truth.
provide
party
oppor-
the adverse
with a fair
801(d)(1),
(prior
Fed.R.Evid.
Note
tunity
it,
prepare
to meet
his intention to
witness) (emphasis added). Later in the same
it,
particulars
offer the statement and the
Note, however, the
cuts back
Committee
including the name and address of the declar-
expansive
foregoing language,
thrust of the
ant.
it seems to limit the admission of a witness’s
therefore, now
complain
have no cause to
Copeland Act Count
improper
that an
was not clearly
dismissal
Judge Duniway’s
agree with
I also cannot
*11
explained.
Lemon,
Cf. United States v.
550
the trial court
failure of
conclusion that the
467,
(9th
1977);
469-70
Cir.
United
the
in detail
jury
the
to instruct
833,
(9th
v. King,
States
552 F.2d
849
Cir.
was not
Act count
Copeland
dismissal of the
966,
denied,
1976), cert.
430
97 S.Ct.
U.S.
Clearly,
of the evidence of-
error.
most
1646,
(1977).
955
judgment,
the record does not lead to the
Nor is there an
which would
ambiguity
compel
legislative history.
resort
firm
spoke
belief that Burnett
“under the
Collett,
55, 61,
parte
Ex
See
U.S.
immediate and uncontrollable domination
(1949);
485 F.2d
Cir.
cert.
Again, like Judge Choy, I
agree
cannot
*12
948,
415 U.S.
S.Ct.
ever, coun- a “sword” that defense sorely
sel to defend his clients needed
against the continued offensive prosecutor’s
use of that the devel- Burnett’s exclamation relationship
oper-architect violated Act. prosecutor
Whether or not intended jury thought with the impress Petitioner, MENDEZ, Arturo Ascencio had not followed appellants attorney, advice of consid- pivotal way eration had no & IMMIGRATION NATURALIZATION knowing whether the mentioned SERVICE, Respondent. prosecutor was the basis of the count that *13 75-3285, Nos. 76-1299. me, logical To had been dismissed. is prosecutor’s infer that the reference United States Court of Appeals, argument, during closing after trial Ninth Circuit. judge aspects had mentioned certain dismissed, had been the indictment Oct. jury
lead to believe that remained
Act count of the indictment nothing
force. I the eventual in- find dispel such a no-
structions to the Moreover,
tion. I do consider defense (R.T. the Act
counsel’s two references to an 1046-47) adequate to be substitute instructions. The remarks proper jury jury, but
of an advocate do not bind the do, literally. strictly
court’s instructions therefore, conceivable, entirely
It eventually upon
the conviction rested an charged.
offense longer no say prosecutor spoke
I cannot malice,
with either when he referred to the
Act, repeatedly emphasized when hand,
Burnett’s On the other expletive. allowing prose-
have precedent found no summation, comment, during
cutor to his an dismissed count of indict- previously so, particularly
ment. To permit doing so sternly
when defense counsel has been it, to me to be
warned not to refer seems im-
thoroughly wrong. prosecutor’s
proper comment on fortified and
emphasized by subsequent references
Burnett’s damaging inadmissable kickbacks, grievously prejudiced and, opinion,
the defendants could my