U.S. v. Walker

• Decision Date: 19 September 1977
• Docket Number: No. 76-3425,76-3425
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lynne Wallace WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 365

559 F.2d 365

UNITED STATES of America, Plaintiff-Appellee, v. Lynne Wallace WALKER, Defendant-Appellant.

No. 76-3425.

United States Court of Appeals Fifth Circuit.

Sept. 19, 1977.

Ronald J. Waska, Houston, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., Leroy M. Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before COLEMAN, Circuit Judge, KUNZIG, Judge, ^* and GEE, Circuit Judge.

KUNZIG, Judge.

Mrs. Lynne Wallace Walker (defendant-appellant) was indicted, tried and convicted of mailing obscene matter through the United States mail in violation of 18 U.S.C. § 1461 (1970). Advertisements (including pictures) and films made up the obscene material. They allegedly depicted the rape of a twelve year-old girl by her brother, and two girls having intercourse with a dog and a pony. Defendant combats the Government's charges with allegations of her own involving prosecutorial misconduct, judicial behavior, venue, and entrapment the issues now before the court.

We are not persuaded by the arguments advanced by defendant and herewith affirm the conviction reached in the district court below.

The facts are these: In 1970, a Postal Inspector for the United States Postal Service arranged for a fictitious mailing address to be established in the name of Robert Lyons, Box 131, Hondo, Texas. On November 27, 1974, an unsolicited advertisement which formed the basis for Counts One and Two of the subsequent indictment was mailed from California to the Hondo, Texas address. The advertisement offered numerous films for sale, one of which was titled "Cin-Kay-2" and was portrayed as a film depicting the rape of a twelve year-old girl by her brother.

The return address on the envelope containing the advertisement was "Two Gals from Cal," 1505 1/2 Colorado Boulevard, Eagle Rock, California. Subsequent investigation by postal authorities established that this address in Eagle Rock, California, was the location of an artist studio maintained by Michael Hogarth, a friend of appellant. Mr. Hogarth had made this postal box available to appellant at her request; appellant had the only key to the box and received all mail addressed to "Two Gals from Cal."

The film "Cin-Kay-2" was ordered by the Postal Inspectors and received at the Hondo, Texas Post Office box on January 15, 1975. In addition to the film, the parcel contained other advertisement brochures. The film and subsequent advertisements provided the basis for Counts Three and Four of the indictment.

In response to the second advertisement, Postal Inspectors ordered the movie "Horse Power," which was depicted as a film portraying two girls having intercourse with a dog and a pony. On February 13, 1975, the film "Horse Power," also with additional advertisement, was received at the Hondo, Texas Post Office box. The movie "Horse Power" and the third set of advertisements formed the basis for the charges contained in Counts Five and Six of the indictment.

The return address on the parcel containing the film "Horse Power" was 256 South Robertson Boulevard, Beverly Hills, California. Subsequent investigation showed this address to be that of a commercial mail drop service engaged by Mrs. Walker under an assumed name. Appellant was identified by the manager of the commercial mail Mrs. Walker was indicted on January 14, 1976, by a grand jury in the Western District of Texas. She was charged with six separate counts of sending obscene matter through the United States mail in violation of 18 U.S.C. § 1461. Appellant entered a plea of not guilty. Her first trial resulted in a hung jury and a mistrial was declared. She then filed a motion requesting the court to transfer the case from the Western District of Texas to the Central District of California. The motion was denied and appellant retried in the Western District of Texas.

drop as the person who had engaged the service. Later investigation also showed that the money orders sent to purchase the films were deposited in appellant's checking account.

At the second trial, before Judge John H. Wood, Jr., the Government added to the evidence presented at the first trial (outlined supra ) by having a Postal Service handwriting expert identify the handwriting on the parcels as that of the appellant. Mrs. Walker was found guilty on all six counts of the indictment.

Subsequent to her conviction, Mrs. Walker was sentenced to concurrent three-year terms on each of five counts of the indictment. In addition, she received a non-concurrent five-year term on the remaining count of the indictment. This term was suspended and appellant placed on supervised probation for a term of five years. Because of the way sentence was imposed, appellant was sentenced to a maximum term of imprisonment of three years, to be followed by five years of supervised probation. Appeal to this court followed.

Mrs. Walker mounts a five-pronged attack seeking to have her conviction upset. First, she alleges that the prosecutor, in final argument, commented improperly on her failure to testify. The Government answers that, taken in context, there was no impropriety involved. Second, appellant lists a series of items which she alleges prejudiced her case, such as the judge's attitude in court, his comments and restrictions on defense counsel, and so forth. The Government combats these items point by point, arguing there was no prejudice to appellant. Third, Mrs. Walker alleges she was deprived of a fair trial by the District Court's failure to grant her motion to transfer the case to California. The Government urges that there has been no showing how the trial court in any way abused its discretion in refusing to transfer the case. Fourth, defendant argues entrapment, which the Government denies. Finally, Mrs. Walker claims the Government did not furnish exculpating material pursuant to the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Government answers that this court has previously held that Brady imposes no obligation on the part of the Government to seek out such evidence.

After excellent arguments by counsel on both sides and thorough analysis of all issues brought before the court, we hold for the Government and affirm the conviction.

First and foremost, it must be made patently clear that the question of whether the advertisements and films are obscene is no longer at issue in this case. The jury found them obscene; defendant has not appealed this determination. Counsel for Mrs. Walker conceded this again at oral argument and did not attempt thereafter to argue the point further. ¹

PROSECUTORIAL MISCONDUCT

Appellant's first argument centers on statements made by the prosecutor at final argument allegedly commenting on Mrs. Walker's failure to testify during trial.

Appellant contends that language used by the prosecutor was "plain error in that it was a direct comment on Defendant's failure to testify," and relies on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Government, also relying on Griffin, claims that the prosecutor's statements were proper because they were not a comment on Mrs. Walker's failure to testify, but merely a characterization of the defense theory that the Government had failed to prove its case.

It is well established that Griffin, supra, forbids comment by the prosecution on the accused's silence at trial. 380 U.S. at 615, 85 S.Ct. 1229. In determining whether a prosecutor's statements constitute "forbidden comment" we must examine them in their entirety and decide if they were manifestly intended or of such character that a jury would naturally take them to be a comment on the failure of the accused to testify. United States v. Jennings, 527 F.2d 862, 870-71 (5th Cir. 1976); United States v. Wilson,500 F.2d 715, 721 (5th Cir. 1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975).

The contested statements by the prosecutor read as follows:

Lynne Wallace Walker made a mistake by sending it (the obscene material) to the wrong person and she is now sitting up here saying not in retrospect that I didn't mean to do it or anything like that, but rather . . . "I challenge you." She has challenged the Government just as Sir Thomas More challenged the Government and the Government has met that challenge. Just as Sir Thomas More, she must be convicted. Evidence has been presented that proves this case beyond a reasonable doubt. We have proven obscenity. We have proven the mailing. We have proven the receipt here in the Western District of Texas.

These remarks, taken in their entirety and set in the context of this case, do not meet the test set forth in Jennings and Wilson, supra. Upon thorough examination of the record it is clear that the prosecutor was not commenting on defendant's failure to take the stand but instead was characterizing the defense's position. In closing argument, counsel for appellant had explained to the jury that he made the decision not to put his client on the witness stand and not to subject her to attack by the Government when the Government "failed so miserably to meet their (sic) burden."

It was in response to these statements that the prosecutor referred to the theory of the defense by the remark that Mrs. Walker "challenged the Government." Seen in this perspective the remarks are only an allusion to the burden of proof placed on the Government by appellant's plea of not guilty. There is no showing that the prosecutor's argument was "manifestly intended" to be a comment on defendant's failure to take the stand. Nor can we say that the remarks were "of such character that a jury would naturally and necessarily take (them) to be a comment on the failure of the accused to testify." United States v. Jennings, supra, 527 F.2d at 870-71. The prosecutor was merely pointing out the...