U.S. v. Love

• Decision Date: 05 May 1976
• Docket Number: No. 75-1984,75-1984
• Citation: 534 F.2d 87
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond LOVE, a/k/a Mr. Love and Mr. Lau, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 87

534 F.2d 87

UNITED STATES of America, Plaintiff-Appellee, v. Raymond LOVE, a/k/a Mr. Love and Mr. Lau, Defendant-Appellant.

No. 75-1984.

United States Court of Appeals, Sixth Circuit.

Argued March 30, 1976.

Decided May 5, 1976.

David M. Hartsook, Howell, Mich. (Court-appointed), for defendant-appellant.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Robert H. Plaxico, Dept. of Justice, William Otis, Washington D. C., for plaintiff-appellee.

Before PHILLIPS, Chief Judge and McCREE and LIVELY, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment of conviction of transmitting in interstate commerce a communication containing a threat to injure another person in violation of 18 U.S.C. § 875(c). The jury found appellant guilty on two counts, and not guilty on four counts of a six count indictment. The district judge suspended a custodial sentence, placed appellant on probation for two years, and fined him $300.

Appellant was an employee of the National Account System, a debt collection company located in Chicago, Illinois, and the Government showed that appellant made several telephone calls to George Vichos in Detroit in the course of attempting to collect a Las Vegas gambling debt. The calls conveyed thinly veiled threats of physical injury to Vichos and his family. The Government also introduced statements that appellant made to government investigators that National Account System policy was to treat debtors as "animals" and to intimidate them in order to obtain payment.

Appellant presents the following issues on appeal: (1) whether the evidence was sufficient to support the conviction, (2) whether the statements that appellant made to government investigators were properly admitted at trial, (3) whether appellant's trial attorney provided reasonably effective assistance, and (4) whether the government attorney's question to appellant on cross-examination asking whether appellant's employer was connected with the Mafia constituted plain error.

Although there is sufficient evidence from which the jury could find that appellant communicated threats of injury, as charged in the two counts in which appellant was found guilty, reversal is required because the prosecutor intentionally and for no proper purpose injected into the trial the spectre of organized crime and the Mafia. This prosecutorial misconduct, by itself, requires reversal of appellant's conviction.

We have stated in many recent opinions that a prosecutor's overzealousness may jeopardize a conviction in an otherwise strong case. United States v. Leon, --- F.2d ---- (6th Cir. 1976); United States v. O'Donnell, 510 F.2d 1190, 1195 (6th Cir.) (concurring opinion), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975); United States v. Smith, 500 F.2d 293 (6th Cir. 1974); United States v. Calvert,498 F.2d 409 (6th Cir. 1974). We recognize that a United States Attorney should "prosecute with earnestness and vigor," but it also is "his duty to refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). As we said in United States v. Perry, 512 F.2d 805, 807 (6th Cir. 1975) (a case in which among other errors the prosecutor asked if defendant was a member of the "Dixie Mafia," a locution similar to that employed here), "the U. S....