United States v. Ward, 72-3040.

• Decision Date: 24 July 1973
• Docket Number: No. 72-3040.,72-3040.
• Citation: 481 F.2d 185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harvey Allen WARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 185 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Harvey Allen WARD, Defendant-Appellant.

No. 72-3040.

United States Court of Appeals, Fifth Circuit.

July 3, 1973.

Rehearing Denied July 24, 1973.

John McGuigan, Atlanta, Ga. (Court-Appointed) for defendant-appellant.

John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before AINSWORTH, DYER and INGRAHAM, Circuit Judges.

DYER, Circuit Judge:

Ward appeals from a judgment of conviction of interstate transportation of forged traveler's checks in violation of 18 U.S.C.A. § 2314. He argues that he was denied an opportunity to impeach two key Government witnesses, and that the United States Attorney's final argument to the jury improperly commented on Ward's failure to take the stand. We affirm.

We can quickly dispose of Ward's first point. He argues that he was not allowed to question two key witnesses about whether they had recently been convicted of armed robbery. His position is that, even though the "convictions" had not yet been through the appellate process, our recent decision in United States v. Franicevich, 5 Cir. 1973, 471 F.2d 427, permits such convictions to be used for impeachment purposes. A reading of the record, however, discloses no convictions that fall within the Franicevich rule.

Six months before Ward's trial, the two witnesses involved had pleaded nolo contendere to armed robbery charges in North Carolina. The North Carolina court accepted their plea, but, at the time of Ward's trial, had not imposed sentence. On this record, the district court quite properly refused to allow impeachment. First, the Supreme Court has stated that, at least for certain purposes, it is the judgment of conviction and sentence, and not the tender and acceptance of the nolo contendere plea, that constitutes the "determination of guilt." Lott v. United States, 1961, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940. Secondly, even if we were to conclude that the mere acceptance of the plea was a sufficiently final conviction for impeachment purposes, Ward's argument would still founder on this Circuit's rule that a conviction based on a nolo contendere plea cannot be used for impeachment in a different proceeding. Piassick v. United States, 5 Cir. 1958, 253 F.2d 658; Mickler v. Fahs, 5 Cir. 1957, 243 F.2d 515; see Kilgore v. United States, 5 Cir. 1972, 467 F.2d 22; United States v. Driscoll, 5 Cir. 1972, 454 F.2d 792.

Ward's argument concerning the United States Attorney's comments in his closing remarks also leaves us unconvinced that reversible error occurred. This conclusion should not be taken as even tacit approval of the tactics of the United States Attorney. Instead our conclusion is reached by considering the combined effect of the inaction by defense counsel and the prompt action by the district court.

During the Government's summation Ward's counsel made only two objections. Each of these was directed not at an improper comment on Ward's failure to take the stand, but was an attempt to show that there was no testimony or reasonable inferences therefrom which would support that portion of the Government's argument immediately preceding the objection. Additionally, because none of the questioned comments by the United States Attorney were made until after these two objections, it cannot be said that Ward's counsel made an immediate objection to the comments. The first mention of this issue came after the conclusion of the summation and was in the form of a motion for a mistrial. This was too late.

This Court has considered this precise problem before and has concluded that,

it is not sufficient to move for a mistrial after all the arguments are in. The purpose of requiring objections to be made while the argument is in progress is to give counsel making the argument a chance to withdraw or explain it and the court a chance to exclude it from the jury\'s consideration.

Fogarty v. United States, 5 Cir. 1959, 263 F.2d 201, 204, cert. denied, 360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d 1534. We cautioned in Samuels v. United States, 5 Cir. 1968, 398 F.2d 964, 967, cert. denied, 1969, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566, that the rule requiring a timely objection does not necessarily require an objection "to a comment upon the refusal of a defendant to testify at the precise moment such comment is made." Nevertheless, under the...