United States v. Arnold, 656-69.
| Decision Date | 29 April 1970 |
| Docket Number | No. 656-69.,656-69. |
| Citation | 425 F.2d 204 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clarence ARNOLD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James M. O'Hara, Denver, Colo., for appellant.
James R. Richards, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
Appellant was convicted of a violation of 21 U.S.C. § 331(q) (1), the unlawful manufacture, compounding and processing of a depressant or stimulant drug. His appellate contentions include an assertion that the evidence was insufficient to support the conviction and broad generalizations concerning the jury panel and the refusal of the trial court to grant a motion for continuance. Each of these contentions was presented to the trial court by way of motion for new trial and held to lack merit. We are in complete agreement that the record reflects more than ample evidence to support conviction and that the trial court correctly determined that no claim of error presented to support the motion for new trial had merit. However, appellate counsel presents an additional assignment of error, made for the first time in this court, that is so clearly meritorious in view of our decision in United States v. Nolan, 10 Cir., 416 F.2d 588, that we are compelled to reverse the judgment regardless of the lateness of presentation. Fed.R.Crim.P. 52 (b). The error climaxes, as in Nolan, with a prejudicial closing argument by the government attorney.
Appellant was lawfully arrested at his residence when surrounded by considerable laboratory equipment being used to manufacture amphetamine. As a defense to the subsequent indictment he attempted, through testimony of others, to show his activities were that of a chemistry student engaged in experimental research.1 Projected against this general posture of the case the government elicited the following testimony from the arresting agent:
Since the Miranda warnings here given were not intended as a foundation for the admission of a voluntary inculpatory statement of the defendant, this testimony served no probative purpose and did no more than turn on the red light of potential prejudice involving the defendant's fifth amendment rights. We are inclined to the view that this testimony, standing alone, might well be considered harmless2 but such is not this case. In his closing argument, counsel for the government stated:
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