U.S. v. Price, 83-1180

Citation722 F.2d 88
Decision Date22 November 1983
Docket NumberNo. 83-1180,83-1180
Parties84-1 USTC P 9186, 14 Fed. R. Evid. Serv. 948 UNITED STATES of America, Plaintiff-Appellee, v. Rex J. PRICE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William F. Billings, Randall Mark Willis, Dallas, Tex., for defendant-appellant.

Jack Curtis Williamson, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, GARWOOD and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A former employee of the Army Air Force Exchange Service was charged with conspiracy to obtain gratuities in violation of law and to defraud the United States, with making false statements before a federal grand jury, and with income tax evasion. A key issue in his trial on all three counts was the credibility of persons who had sold toys to the Exchange Service and had allegedly given gratuities to the accused. The government elicited testimony from an Internal Revenue Service Agent who, in testifying on the income tax charge, stated that he had based his computations on the statements of two of the government witnesses and that he believed them. Because his testimony was improperly admitted and cannot be considered harmless, we reverse the conviction and remand for a new trial.

Rex J. Price was employed by the Exchange Service from 1966 to 1981. At the time of the events that gave rise to the charges against him he was assigned to Exchange Service Headquarters and was responsible for buying toys. The indictment charged that he conspired to defraud the United States and to violate 18 U.S.C. Sec. 201, which forbids a government employee to accept a gratuity, that he made a false statement before a grand jury in violation of 18 U.S.C. Sec. 1623, and that he evaded income taxes in violation of 26 U.S.C. Sec. 7201. The conspiracy case was based principally on the testimony of three individuals who owned a company that sold toys to the Exchange Service. Each of the three testified that he had paid cash to Price to remain in his favor. The income tax count was based on Price's failure to report the money thus received. An Internal Revenue Agent, James Whitfield, testified about Price's tax liability. He based this on an exhibit showing Price's income, which included the alleged payments made by two of the toy sellers. He also testified that he relied on their statements because he "believed them." The trial court refused to instruct the jury to disregard this testimony but instead told the jury only that "they are the sole judges of the credibility of the witnesses, including this witness and all other witnesses." He denied a motion for a mistrial.

"No principle in the law of evidence is better settled," the court said in United States v. Holmes, 26 F.Cas. 349, 352 (C.C.D.Me.1858) (No. 13,382), "than ... the rule ... that testimony in chief of any kind, tending merely to support the credit of the witness, is not to be heard except in reply to some matter previously given in evidence by the opposite party to impeach it." See also Fed.R.Evid. 608(a)(2) (evidence of witness's truthful character admissible only after character for truthfulness has been attacked). The basic justification for this rule of evidence is that "time should [not] be spent in proving that which may be assumed to exist. Every witness may be assumed to be of normal moral character for veracity, just as he is assumed to be of normal sanity." 4 J. Wigmore, Evidence Sec. 1104, at 233 (Chadbourn rev. 1972). But in some instances, the introduction of such testimony bolstering the credibility of witnesses may cause harm that goes beyond the mere wasting of time. When bolstering testimony suggests to the jury that it may shift to a witness the responsibility for determining the truth of the evidence, its admission may constitute reversible error. See Homan v. United States, 279 F.2d 767 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). Agent Whitfield's statements were tantamount to "expression[s] of his general belief as to how the case should be decided," which are not only prejudicial but also "wholly without value to the trier of fact in reaching a decision." McCormick, Handbook of the Law of Evidence Sec. 12, at 26-27 (Cleary ed. 1972).

The government does not dispute these precepts. It says in reply only this: "Even assuming Whitfield's testimony exceeded strict propriety, there was no basis for declaring a mistrial. An alleged prejudicial statement may be rendered harmless by curative instructions." This, too, is correct when proper curative instructions are given. Here, however, the district court merely instructed the jury that it was to weigh the credibility of the witnesses, including that of the bolstering witness, and give it the "weight and value" it believed the testimony deserved. If the jury believed Whitfield, this added to the bolstering effect of the testimony.

We cannot say that Whitfield's testimony was harmless. 1 The jury was required to choose between the testimony of the toy sellers and that of the accused. It found Price guilty on the conspiracy count, presumably crediting the testimony that he had received gratuities, but acquitted him of the perjury charge and of tax evasion. These results appear to be inconsistent, but they mean at least that the jury was not prepared to find Price completely culpable. In...

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19 cases
  • Sabag v. Continental South Dakota
    • United States
    • South Dakota Supreme Court
    • 4 September 1985
    ...at 1047, thus inducing the fact finder to surrender "the responsibility for determining the truth of the evidence." United States v. Price, 722 F.2d 88, 90 (5th Cir.1983). Barrel of Fun, 739 F.2d at 1032 (footnote Sabag contends, however, that the PSE results were admissible because they we......
  • U.S. v. Gambino
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 4 March 1991
    ...for determining the truth of the evidence, admission of the testimony may constitute reversible error.") (citing United States v. Price, 722 F.2d 88, 90 (5th Cir.1983)); United States v. Murray, 445 F.2d 1171, 1176 n. 7 (3d Cir.1971); United States v. DiLoreto, 888 F.2d 996, 999 (3d Cir.198......
  • Barrel of Fun, Inc. v. State Farm Fire & Cas. Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 24 August 1984
    ...at 1047, thus inducing the fact finder to surrender "the responsibility for determining the truth of the evidence." United States v. Price, 722 F.2d 88, 90 (5th Cir.1983). Here, the PSE evidence directly contradicted the trial testimony of Floyd Guilbeau that he was not involved in, nor had......
  • U.S. v. Citron
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 February 1986
    ...summarize the evidence upon which they are based." United States v. O'Connor, 237 F.2d 466, 475 (2d Cir.1956); see United States v. Price, 722 F.2d 88, 91 (5th Cir.1983); United States v. Keltner, 675 F.2d 602, 606 (4th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982); ......
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