Dunn v. United States

• Decision Date: 12 September 1962
• Docket Number: No. 19206.,19206.
• Parties: J. Monroe DUNN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

307 F.2d 883 (1962)

J. Monroe DUNN, Appellant, v. UNITED STATES of America, Appellee.

No. 19206.

United States Court of Appeals Fifth Circuit.

September 12, 1962.

Chas. L. Gowen, Brunswick, Ga., for appellant, Gowen, Conyers, Fendig & Dickey, Brunswick, Ga., of counsel.

William T. Morton, Asst. U. S. Atty., Augusta, Ga., Norman Sepenuk, Atty., Dept. of Justice, Washington, D. C., Donald H. Fraser, U. S. Atty., Southern Dist. of Georgia, Joseph M. Howard, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before JONES, WISDOM and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

J. Monroe Dunn appeals from a conviction and sentence under a two count indictment charging willful attempts to evade his income tax for the calendar years 1955 and 1956.¹

The Government contends that Dunn, who was then Mayor of the City of Baxley, Georgia, received funds from the City of Baxley and from contractors and suppliers performing work and furnishing goods to Baxley, Appling County and the City of Surrency, which he did not report for the years involved.² The Government claims that the unreported funds were received by Dunn in the form of "kickbacks" or for construction work performed by him, but payment for which was made to other contractors and city employees, who in turn delivered cash to Dunn. Dunn denied receiving the cash sums claimed and he contends that certain unreported funds paid to him by check of the City of Baxley were used for the sole purpose of defraying expenses incurred in making trips to Atlanta and other places to secure public works projects. Dunn was a construction contractor and owned and operated heavy equipment used to move earth and for other purposes.

The appellant Dunn complains of error with respect to alleged prejudicial statements or arguments made by the United States Attorney; the improper admission in evidence of Government's Exhibits No. 3, hereinafter mentioned; the refusal of certain requested charges; and errors in the instructions given by the court.

In his opening statement to the jury, the District Attorney made the following assertion:

"This case is replete with fraud and is one of the most flagrant cases we have ever tried in the Southern District of Georgia."³

In his closing argument, the United States Attorney was commenting upon an alleged arrangement between Dunn and a contractor named, DeLaigle, who was a Government witness, who admittedly had converted checks to cash and claimed to have given certain cash to the defendant Dunn, which Dunn denied receiving, when the following argument was made:

"how was Mr. DeLaigle going to get the job? Mr. Dunn was the Mayor. He got them from Mr. Dunn. Whether those accounts (amounts?) were reimbursement for expenses or kick backs — any of you gentlemen that know anything about politics, when you throw out that much money, why, somebody is going to have to take (pay?) somebody else."

The defendant objected and made a motion for a mistrial.⁴

The duty of a United States Attorney in a criminal prosecution is succinctly stated in Handford v. United States, (5 Cir., 1957) 249 F.2d 295 as follows:

"A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo-American criminal law rests on the foundation: better the guilty escape than the innocent suffer. In this case zeal outran fairness. The argument of the United States attorney in the district court was improper, prejudicial, and constituted reversible error."

In the instant case "zeal outran fairness" in our judgment. At the outset, the jury was told that in the prosecutor's opinion the case was the most flagrant he had ever tried and was replete with fraud. At this point, it would have been relatively simple for the Court to have discharged the jury who heard the prejudicial remarks and impaneled another one. It is improper for counsel to express his personal opinion or to state facts of his own knowledge, not in evidence, and not part of the evidence to be presented; or to make unwarranted inferences or insinuations calculated to prejudice the defendant. Taliaferro v. United States, (9 Cir., 1931) 47 F.2d 699. There can be no doubt that the statement in the closing argument to the effect that all politicians take kickbacks on contracts such as these was prejudicial. At the time Dunn was the elected Mayor of the City of Baxley. The case against Dunn on this point rested on the veracity of DeLaigle. To insinuate that Dunn must have gotten the money from DeLaigle because Dunn was a politician and that their relationship was a nefarious political deal, was improper and prejudicial.

The fact that the Court told the jury to "disabuse your minds of that statement" cannot remove the prejudice. This Court reversed a conviction for improper argument in Ginsberg v. United States, (5 Cir., 1958) 257 F.2d 950, where there was no objection to the argument and no corrective charge given. The Court said:

"We hold that this statement of the prosecuting attorney constituted `plain error * * * affecting substantial rights\' under Rule 52(b), 18 U.S.C.A., governing criminal procedure. It was such an error, also, as would have been magnified in its influence on the jury by an objection and motion for mistrial."

This Court also reversed a conviction on a narcotics charge for a statement much less prejudicial than the one here involved,⁵ without an objection or motion for mistrial in Nalls v. United States, (5 Cir., 1957) 240 F.2d 707. In this case, the point was raised by motion for mistrial and motion for a new trial.⁶

The paths of justice must be cut through a wilderness of facts in every case. Opinions of prosecutors or defense counsel are not issues to be submitted to the jury. The statements made by the District Attorney could not be based on evidence to be presented or actually presented. Evidence to support his statements, if tendered, could not be received. We are always concerned with guilt and innocence in criminal cases; but of equal importance is a fair trial to guilty and innocent alike. Trials are rarely, if ever, perfect, but gross imperfections should not go unnoticed. In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one "cannot unring a bell"; "after the thrust of the saber it is difficult to say forget the wound"; and finally, "if you throw a skunk into the jury box, you can't instruct the jury not to smell it".

The Government relied heavily on witness DeLaigle and Government Agent Abbott to prove its case. For a year or more, Agent Abbott made an investigation of defendant Dunn's income. At a conference attended by several Government agents, including Agent Abbott, the defendant Dunn and a Mr. Atwood,⁷ who was an accountant for Mr. Dunn, Agent Abbott submitted a list of items of claimed income to Accountant Atwood which he, Abbott, claimed had been received as income by Dunn and not reported. Accountant Atwood took the list and tried to determine whether the alleged unreported items had in fact been reported. He was successful in establishing that several thousand dollars from the list furnished by Abbott had been reported, but he was unable to find any record of many items on the list. He prepared a work sheet which reflected the items he had not been able to find in the records and this list was voluntarily delivered to Agent Abbott with the consent of Dunn. Dunn made no statement except to deny that he had failed to report his income and at no time did Dunn or anyone on his behalf admit the correctness of the list prepared by Agent Abbott. Most, if not all, of the items on the list prepared by Abbott were based on information furnished to him by witness DeLaigle out of the presence of the defendant.

The Government called Accountant Atwood as a witness and requested him to bring a copy of the statement submitted to Agent Abbott. This statement was admitted in evidence over the objection of the defendant. The defendant claims prejudicial error because the defendant contends that the statement was received in evidence for the purpose of proving that Dunn had admitted that the items of claimed income...