United States v. Machado, 71-1912.

• Decision Date: 12 April 1972
• Docket Number: No. 71-1912.,71-1912.
• Citation: 457 F.2d 1372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Earl MACHADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 1372 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Earl MACHADO, Defendant-Appellant.

No. 71-1912.

United States Court of Appeals, Ninth Circuit.

April 12, 1972.

Gary D. Weatherford (argued), George H. Lerg, II, of Ferris, Weatherford, Brennan & Lerg, San Diego, Cal., for defendant-appellant.

James W. Brannigan, Jr. (argued), Washington D. C., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and TRASK, Circuit Judges, and BYRNE,^* District Judge.

BYRNE, District Judge:

Appellant Machado was a civilian employed at the Camp Pendleton Marine Base in the "Recreational Branch of the Section of the Base Special Services." As a "Recreation Specialist", Machado was charged with "direct supervision" of the section's ticket office. In essence, it was Machado's responsibility to oversee the daily ticket sales¹ and to make an accounting thereof. According to the evidence adduced at trial, which we view in the light most favorable to the government, at some point in the performance of his assigned duties, Machado went astray. Illustrative of his defection from the law-abiding is the following: The amusement attraction, Sea World, which had issued, on consignment, discount tickets to the base notified Machado that due to a change in its method of selling tickets to military personnel, all proceeds along with any unsold tickets were to be returned "as soon as possible." Machado was not able to immediately comply with this request because he had diverted a substantial portion of these proceeds from the office cash register to his personal coffer. Frustrated by Machado's efforts to forestall compliance, Sea World threatened to inform the Marine Director of Base Special Services of its difficulty in securing the outstanding tickets and any proceeds to which it was entitled. Thereafter, Machado caused to be issued, by falsely representing to the custodian of the Base Recreation Fund that the money was to purchase tickets from Sea World to sell at the ticket office, a Camp Pendleton military base check made out to Sea World in the sum of $2,000.² At a jury trial, Machado was found guilty of making false statements to a government agency and embezzling government funds,³ violations, respectively, of 18 U.S.C. § 1001 and 18 U.S. C.A. § 641.

Machado's defense consisted of the testimony of four former co-workers, the most significant to this appeal being that of Clyde Lovelace. On direct examination, Lovelace stated that he had known Machado for fifteen years and that during his two and one-half year period of employment at Camp Pendleton, he knew his reputation "for honesty and probity in these work areas" to be "excellent." Without objection, Lovelace stated during cross-examination that on March 14, 1968, he "probably" purchased hockey tickets from the Ticket Office and paid for them with a $10.00 check. Immediately thereafter, the government's counsel asked the following questions: "Now, with respect to your having heard about the reputation of Mr. Machado, for this period of time that you've known him, this fifteen years, have you ever heard that he did not turn in monies that he was accounted for?" Although this question was immediately objected to as being beyond the scope of direct, the court permitted Lovelace to answer that he had not "heard anything like that." Thereafter, Lovelace answered over objection that he had not heard that Machado had failed to "turn in" the ten dollar check he had given him to buy the hockey tickets.

On appeal, Machado contends for the first time that the questions propounded by the government's counsel were designed "to adduce hearsay evidence on the issue of his guilt or innocence." In his view, these "questions could have no effect other than prejudicing the jury," because a character witness was asked "whether he had heard that appellant had committed one of the offenses for which he was standing trial."

As indicated, the ground upon which Machado objects to this cross-examination was not asserted at trial. Such a belated assertion falls within the settled rule that absent the presence of plain error, a basis for objection not raised at the trial level, cannot be urged for the first time in the Court of Appeals. United States v. Markham, 440 F.2d 1119 (9th Cir. 1971); United States v. Marquez, 424 F.2d 236 (2d Cir. 1970), cert. denied, 400 U.S. 828, 91 S. Ct. 56, 27 L.Ed.2d 58 (1970); Bond v. United States, 397 F.2d 162 (10th Cir. 1968), cert. denied, 393 U.S. 1035, 89 S. Ct. 652, 21 L.Ed.2d 579 (1969); Kreinbring v. United States, 216 F.2d 671 (8th Cir. 1954). Here, the only ground upon which Machado objected to Lovelace being asked whether he "had ever heard that he Machado did not turn in monies" for which he was accountable was that it was beyond the scope of direct examination. This contention is wholly free of any merit, for it was Machado who broached the subject of his reputation by eliciting from Lovelace that he enjoyed an "excellent" reputation for "honesty and probity." On cross-examination the government sought to determine the extent of Lovelace's knowledge of Machado's reputation by asking him about reports in the community that Machado had engaged in conduct which was inconsistent with his "excellent" reputation. The propriety of this question is beyond challenge. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Shimon v. United States, 122 U.S.App. D.C. 152, 352 F.2d 449 (1965).

The second question which Machado contends is rife with "prejudicial hearsay" concerns the government inquiring of Lovelace whether he heard that Machado had not "turned in" the ten dollar check he had written to purchase hockey tickets. Machado's response thereto, "Objection, your Honor" was overruled and Lovelace was permitted to testify that he had "never heard any such thing."

Machado's non-specific objection cannot be considered because absent a showing that a defendant's rights have been substantially affected, a general objection is not sufficient to preserve an alleged error for appeal. United States v. Cook, 432 F.2d 1093 (7th Cir. 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971); Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); Bohol v. United States, 227 F.2d 330 (9th Cir. 1955). In this case, the specter of prejudicial error cannot be raised because the evidence adduced by the government in its case-in-chief far exceeded that necessary to meet its prosecutorial burden. The record is replete with evidence substantiating the charges brought against Machado by way of indictment. Accordingly, even if we were to hold that this portion of the government's cross-examination was improper, we would simply add this case to the legion which have come within the scope of Rule 52(a)⁴ of the Federal Rules of Criminal Procedure.

The government continued its cross-examination of Lovelace by asking him if he knew that Machado once had worked at the Eleventh Naval District. After the request by Machado's counsel to approach the bench had been denied ("The District Attorney sic says things at his peril. You think the same as I do if that's what your anticipating."), Lovelace acknowledged that he was aware Machado had been employed "down there." Over objection (". . . the scope of examination is far beyond any probative value with respect to general reputation in the community."), Lovelace was asked whether he had heard that Machado had been "asked to leave this position with the Eleventh Naval District because he had been involved in some petty theft." Apparently responding to the government's open court assurance that it had "a basis for asking the question," the court permitted Lovelace to answer in the negative. Following a question relating to Lovelace's knowledge of Machado's civil service grade ("I believe he was GS-11"), Machado's attorney requested the court instruct the jury "that the question . . . does not infer any particular answer—truth of any allegation." The court responded by instructing the jury as follows: "As I once instructed you: Because a question is asked and the answer is, `No', the facts set forth in the question have not been proved." Thereafter, the court denied Machado's motion for a mistrial.

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