United States v. Benson

• Decision Date: 16 February 1968
• Docket Number: No. 17965.,17965.
• Citation: 389 F.2d 376
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Millard BENSON, Defendant-Appellant
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 376 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Millard BENSON, Defendant-Appellant

No. 17965.

United States Court of Appeals Sixth Circuit.

February 16, 1968.

G. Edward Friar, Knoxville, Tenn., for appellant.

John H. Cary, Asst. U. S. Atty., Knoxville, Tenn., J. H. Reddy, U. S. Atty., Knoxville, Tenn., on brief, for appellee.

Before WEICK, Chief Judge, and EDWARDS and CELEBREZZE, Circuit Judges.

WEICK, Chief Judge.

This is a direct appeal from a judgment of conviction entered upon a jury verdict of guilty of the crime of knowingly storing a stolen motor vehicle which had been moving as a part of interstate commerce, in violation of 18 U.S.C. § 2313. Benson was sentenced to eighteen months' imprisonment.

The indictment contained three counts. The first count charged Benson, Holloway and Smith with concealing the stolen motor vehicle moving in interstate commerce; the second count charged them with receiving it; and the third count charged only Benson with storing it.

The case was tried three times. In the first trial the jury disagreed. The indictment was then dismissed as to Smith, as he had been convicted in the same court and sentenced to fifteen years' imprisonment on a counterfeiting charge. In the second trial Benson and Holloway were acquitted on counts one and two of the indictment, and Benson was convicted on count three, which charged him with storing the stolen motor vehicle. On appeal to this Court, the conviction was reversed because of prejudicial error in the cross-examination of a defense character witness. United States v. Benson, 369 F.2d 569 (6th Cir. 1966).

The present appeal is to review Benson's conviction for the storing offense, which conviction occurred upon remand at his third trial. Only errors of law are pointed out in Benson's brief. He does not question the sufficiency of the evidence to support his conviction.

In his instructions to the jury the District Judge, after relating Benson's theory of the case said:

"The Government says that that is a story that cannot stand up, that that story was cooked up by the defendant as a defense to this lawsuit and that it is not true."¹

After the District Judge finished his charge, but before the case was submitted to the jury, the following colloquy took place:

"MR. FRIAR: * * * The other thing I want to ask the Court about from the charge is in referring to the defendant\'s theory of the case. Along toward the end of the charge, the Court said something to this effect, which I wrote down hurriedly, in reference to the defendant\'s theory of what happened, the Court said something to the effect, quotes `The Government says that that is a story that was cooked up for this case\' unquote.

"I was wondering, if your Honor please, actually no witness and not Mr. Horde nor anyone connected with the Government have made that allegation that that was a story that was cooked up for this case.

"Of course, they contended some other theories but I was wondering, maybe, if the Court could clarify that some way.

"MR. HORDE: I used the expression `made up\' when I was talking on cross-examination.

"THE COURT: Maybe the word `cooked\' wasn\'t used. Of course, that is the only effect, if the Government, the only effect, but that is just inferences. It is a matter for the jury.

"MR. FRIAR: I was just thinking, if your Honor please, and I don\'t want to be discussing somatics sic, but I was thinking the phrase `cooked up\' as a connotation from the Court adds weight to the —

"THE COURT: You want me to say made up?

"MR. FRIAR: That the Government contends that was not true or made up.

"THE COURT: All right. Remind me when the jury comes back and I will say —" (Rec. pp. 367-368)

The jury was recalled and the Court instructed the jury, to conform to defense counsel's request, as follows:

"THE COURT: Members of the jury, in explaining some of the circumstances relied upon by the Government to show guilt by circumstantial evidence, the Court, among other things, said that the defendant claimed that he advanced $50.00 to this man Badger and took the keys to the Ford automobile as security.

"Now rather than using the words `cooked up\' the Court desires to modify that sentence by eliminating the words `cooked up\' and substitute therefor that the Government simply contends that the contention of the defendant that he advanced this $50.00 to this man Badger and took the car, the keys to the car as security, is not true." (Rec. p. 369)

Since the Judge did everything he was asked to do by defense counsel, we find no basis for the present complaint of error. Counsel took no objection to the Court's charge.

It is further contended that Benson was prejudiced by improper remarks made by Assistant United States Attorney Horde in his closing arguments to the jury.

In his first and second trials Benson was represented by a lawyer named Simpson, who later became an Assistant United States Attorney. In his direct examination Benson testified that he and his attorney (Simpson) flew to Nashville in an effort to locate Badger, from whom he claims to have obtained the motor vehicle as security for a $50-loan, but that they did not find Badger. On cross-examination he was asked whether he had fired his attorney, and his answer was "No". He stated his understanding was that Simpson and his present lawyer had worked together.

In his closing argument to the jury, the Assistant United States Attorney said:

"MR. HORDE (Assistant U. S. Attorney): * * *

"I\'d like to have had Mr. Simpson here. Mr. Simpson is, unfortunately can\'t get here and I — I see he is here now. If I had known he could have told us. I would like to put him on the stand and testify right now but I can\'t do that, it is too late."

The comment stands in isolation and was not connected in any way with the remainder of the summation. The comment was improper as Benson's first attorney could not have been compelled to testify against his client. The Government did not call the attorney as a witness. Counsel for Benson did not object to the argument. Had he done so, the objection should have been sustained and a sharp reprimand from the Court would have been in order. Benson was represented by a capable lawyer of his own choosing, who had full opportunity to object if he thought that the substantial rights of his client were being adversely affected by the argument. We are not unmindful of the fact that lawyers hesitate to object to an argument because of a possible adverse effect on the jury. For this reason sua sponte action on the part of the Court is sometimes desirable. Neither a motion to strike nor a motion for mistrial was made.

It is clear that unless objection is made to improper remarks in an argument to the jury such remarks cannot serve as a basis for reversal of a judgment...