United States v. Sawyer, 9851.

• Decision Date: 15 June 1965
• Docket Number: No. 9851.,9851.
• Citation: 347 F.2d 372
• Parties: UNITED STATES of America, Appellee, v. Robert Frank SAWYER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

347 F.2d 372 (1965)

UNITED STATES of America, Appellee, v. Robert Frank SAWYER, Appellant.

No. 9851.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1965.

Decided June 15, 1965.

Lewis A. Noonberg, Baltimore, Md. (Court-assigned counsel), for appellant.

Paul M. Rosenberg, Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

SOBELOFF, Circuit Judge:

On this appeal from a conviction of interstate transportation of a stolen motor vehicle, 18 U.S.C.A. § 2312 (1951), able and diligent court-appointed counsel has treated in brief and in oral argument every point suggested by the defendant which could possibly merit consideration. Finding no error in the trial, we affirm the judgment.

The chief contention is that certain comments made by the Assistant United States Attorney in the course of his closing argument to the jury were improper and highly prejudicial in that he expressed his personal belief in the defendant's guilt Although trial counsel made no objection to these remarks, Sawyer asks us to recognize the alleged improprieties as "plain error" under Rule 52(b), Federal Rules of Criminal Procedure and Rule 10 of the Rules of this court.¹

As we read the prosecutor's words, he did not exceed the bounds of propriety. As an advocate he could hardly be expected to make an argument without indicating to the jury that in his view the case had been proven. Myers v. United States, 49 F.2d 230 (4th Cir. 1931), cert. denied, 283 U.S. 866, 51 S.Ct. 657, 75 L.Ed. 1470 (1931). His comments were based entirely on the testimony, and he did not undertake to add an element of personal vouching or suggest, as prosecutors did in the cases the defendant cites, that he knew of important facts not shown to the jury. Such practices are, of course, strictly forbidden.

This court is fully advertent to the salutary Rule 15 of the American Bar Association's Canons of Professional Ethics² and the pertinent case law.³ While affirming the judgment below, we remind the bar of Rule 15. Caution should always be observed to avoid its transgression, either in letter or in spirit.⁴

Trial counsel's failure to object would not necessarily foreclose our consideration of the point if it appeared that the prosecutor's argument had unfairly prejudiced the defendant. If such were indeed the case there would be a compelling reason in justice to recognize plain error. While ordinarily, if defense counsel does not object during the course of the Government's closing argument he may be said to have waived the point, there may be instances where the failure to object to a grave violation manifestly stems from the attorney's fear that an objection would only focus attention on an aspect of the case unfairly prejudicial to his client. If the presiding judge perceives that trial counsel has been placed in this dilemma, it is the judge's duty, on his own initiative, to interrupt, admonish the offender and instruct the jury to disregard the improper argument. Steele v. United States, 222 F.2d 628, 631 (5th Cir. 1955), cert. denied, 355 U.S. 828, 78 S.Ct. 39, 2 L.Ed.2d 41 (1957).

However, we are satisfied that in this case the conduct of the prosecutor is not open to criticism and that the reason no objection was voiced against the Assistant United States Attorney's argument is simply that the defense counsel perceived no ground for objection, as we perceive none.

Also without merit is the contention that the prosecutor should not have alluded to the possibility that the defendant was involved in the theft of the automobile he transported.⁵ There was a reasonable basis in the evidence for inferring that the defendant was implicated in the theft and the evidence could fairly be cited as part of the proof that in transporting the...