U.S. v. Ylda, 79-5674

• Decision Date: 24 April 1981
• Docket Number: No. 79-5674,79-5674
• Citation: 643 F.2d 348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul D. YLDA, Defendant-Appellant. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 348

643 F.2d 348

UNITED STATES of America, Plaintiff-Appellee, v. Paul D. YLDA, Defendant-Appellant.

No. 79-5674

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

April 24, 1981.

Rehearing and Rehearing En Banc Denied Aug. 14, 1981.

Ronald L. Goranson, Dallas, Tex., for defendant-appellant.

Shirley Baccus-Lobel, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

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

Before GEE, RUBIN and RANDALL, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Ylda was a buyer for the Army and Air Force Exchange Service (AAFES). A jury convicted him of mail fraud and two counts of bribery; the jury acquitted him of another bribery count, three counts of income tax evasion and three counts of subscribing to a false income tax return. He appeals his conviction on the three counts. Finding that the conviction was valid, we affirm.

At trial, three sales agents for toy manufacturers testified regarding payments made to Ylda from the commissions they made on sales to AAFES. Ylda took the stand and testified that he had never received any bribes. He claimed that the money orders provided to him by one witness were given him for convenience in exchange for cash he had won at the races. In defense of the tax counts on which he was acquitted, he attributed expenditures in excess of his income to a cash horde acquired as a result of profitable transactions and a gift from his father, in addition to savings accumulated while he was stationed in Okinawa. He urges error was committed in his trial in several respects. We analyze each of his contentions separately.

I. Prosecutrix's Interrogation.

In patently improper questioning, the government's attorney began the cross-examination of Ylda by asking:

Now, Mr. Ylda, the story you told today, this is the first time you ever told the investigators this story, isn't it?

An immediate objection was made and sustained. The court instructed the jury to disregard the question but overruled Ylda's motion for a mistrial.

The prosecutrix's comment on the accused's silence was improper. An accused has a right to remain silent and comment on the silence of the accused impinges on that right. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976) (in a state trial comment on accused's silence violates the due process clause of fourteenth amendment); United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir. 1978) (in federal court comment on silence of accused is prohibited by fifth amendment).

However, this constitutional violation is not fatal if the prosecution can show that the error was legally harmless. United States v. Meneses-Davila, 580 F.2d at 890; Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). In Chapman we described the following categories into which we assumed all cases of this type could be classified for purposes of determining whether the improper comment on the accused silence constitutes harmless error:

(1) When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.

(2) When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i. e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.

(3) When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.

Chapman v. Unites States, 547 F.2d at 1249-50 (citations and footnote omitted).

Like the parties in United States v. Dixon, 593 F.2d 626, 629 (5th Cir.), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1979), the defendant contends that this case falls within the second category while the government argues that the third classification is applicable. Like the Dixon panel, we find the Chapman categories unhelpful in a case such as the one presented here in which the exculpatory story is not "totally implausible," yet the indicia of guilt are substantial. Moreover, because the Chapman tripartite analysis is based on decisions of this court in cases in which the prosecutor's question evoked testimony regarding the accused's silence, we cannot apply that analysis directly in this case in which no such testimony was elicited. The objection to the prosecutrix's question was made and sustained before Ylda responded.

Therefore, we do not simply apply the Chapman litmus but analyze directly the facts of this case. United States v. Dixon, 593 F.2d at 629; United States v. Davis, 546 F.2d 583, 594-95 & n. 31 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). It is doubtful that the mere asking of the question caused any prejudice to appellant in the minds of the jury. There was neither an answer by Ylda nor impeaching testimony concerning his post-arrest silence. The inquiry was a brief, isolated incident at trial and the prosecutrix did not again mention the argument. There was no attempt by the government to capitalize on this testimony. Moreover, there was substantial testimony that Ylda took bribes. Any slight prejudice that may have resulted was cured by the trial court's prompt action. The prosecutrix's inferential comment on the accused's silence, though improper, constitutes harmless error and does not require reversal in this case. See United States v. Dixon, 593 F.2d at 629-30.

Yet we deem it our duty once again to comment on the paradoxical situation created when a United States attorney deliberately injects inadmissible evidence and then, having attempted to gain improper advantage, seeks absolution on the basis that the result was, after all, harmless. United States v. Cross, 638 F.2d 1375 (5th Cir. 1981). See United States v. Rice, 550 F.2d 1364, 1372 (5th Cir.), cert. denied sub nom., 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977) (expressly disapproving of the government's deliberate interjection of inadmissible testimony which exhibited a lack of appropriate sensitivity to the defendants' substantive rights, but finding the error harmless); Handley v. Pitts, 623 F.2d 23, 28 (6th Cir.1980) (finding of harmless error less appropriate where prosecution deliberately introduces inadmissible evidence). See also United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir.1978) ("(C)omment upon silence of the accused is a crooked knife and one likely to turn in the prosecutor's hand. The circumstances under which it will not occasion a reversal are few and discrete. We suggest that it be abandoned as a prosecutorial technique."). Here the prosecutrix started her cross-examination with a carefully contrived question deliberately designed to invade a well-defined constitutional right. Because the impropriety of this conduct should not go unmentioned, we purposefully call it to the attention of the district judge and the United States attorney for the imposition of such sanction as may be appropriate.

II. Conformity of Jury Charge with Indictment.

The indictment in counts 2 and 4 charged that appellant "did, directly and indirectly, wilfully and corruptly ask, demand, exact, solicit, accept and receive" certain monies from certain sales agents. However, in instructing the jury as to the essential elements required to prove the offenses charged in these counts, the court said that the government had to show "(t)hat Defendant, directly or indirectly, asked, demanded, exacted, solicited, accepted, received or agreed to receive a sum of money, or thing of value...." (Emphasis added.) The words "agreed to receive" and "thing of value" did not appear in the indictment. Ylda promptly objected to the court's use of these additional words.

Each bribery count in the indictment alleged that Ylda acted in violation of 18 U.S.C. §§ 201(c)(1) and 201(c)(3). This statute prohibits conduct by a public official who "asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value...." (Emphasis added.) The instruction used the very words of the statute. Because the jury charge was proper, we deal with what we consider to be the gist of Ylda's contention: the failure of the indictment sufficiently to charge the essential elements of the bribery offense.

The purpose of the indictment is to apprise the accused of the charges against him. It is to be read in the light of its purpose. While an accused may not, of course, be convicted of any offense not spelled out in the indictment however wrongful the conduct proved at trial, minor deficiencies in the language of the indictment do not occasion reversal absent prejudice to the accused. United States v. Contris, 592 F.2d 893, 896 (5th Cir.1979). The indictment is read as a...