United States v. Webb
Decision Date | 11 July 1972 |
Docket Number | No. 72-1134.,72-1134. |
Citation | 463 F.2d 1324 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. John WEBB, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Oakley Melton, Jr., Montgomery, Ala. (Court-appointed), for defendant-appellant.
Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
Before WISDOM and INGRAHAM, Circuit Judges, and BOOTLE, District Judge.
Appellant was tried and convicted by a jury of five violations of 18 U.S.C. §§ 892 and 8941 extortionate credit matters. A general sentence of eight years was imposed to run on all five counts. Appellant Webb appeals attacking the statute under which he stands convicted and the trial which convicted him.
Appellant's attack upon the statute is insubstantial. Relying on reasoning, paralleling the Supreme Court's decision in United States v. Bass, 404 U. S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), he asserts that Congress could not permissibly make criminal the purely local exercise of extortionate credit practices. More particularly, appellant argues that §§ 892 and 894 should not apply to one whose actions were purely intrastate, because the congressional thrust of those sections was directed at organized crime. These arguments have been expressly rejected in a series of cases. Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); United States v. Lebman, 464 F.2d 68 (5th Cir., 1972); United States v. Harris, 460 F.2d 1041 (5th Cir., 1972). In the latter case a similar challenge was directed at 18 U.S.C. § 1955. The court there relying on Perez, supra, observed:
460 F.2d 1041 at 1047. Indeed, United States v. Bass, supra, distinguished Perez on this basis.
404 U.S. 336 at 339, note 4, 92 S.Ct. 515 at 518.
We turn to appellant's challenge to the sufficiency of the evidence. The prosecution's strongest case was made by the testimony of James McCloud and his fifteen year old son. McCloud testified that he had a desperate need for money and turned to appellant for a loan of $35. On cross-examination he was asked:
On the Friday after the loan was made Webb told him he now owed $70. McCloud paid him $35. The next Friday Webb returned to McCloud's place of business and demanded that he again be paid $70. McCloud paid him $58. The next week Webb demanded $100. McCloud refused to pay anything further and was subsequently assaulted by the appellant.
On one occasion McCloud and his son heard Webb drive up to their home. McCloud ran out the back door as Webb, pistol in hand, entered through the front door. The prosecution has made out all the necessary elements of offenses under both §§ 892 and 894. Compare United States v. Antonelli, 439 F.2d 1068 (1st Cir., 1971); United States v. DeLutro, 435 F.2d 255 (2nd Cir., 1970); United States v. Joines, 327 F.Supp. 253 (D.C. Del., 1971); United States v. Curcio, 310 F.Supp. 351 (D.C., Conn.1970). Since the general sentence of eight years imposed on appellant was less than the statutory maximum of twenty years on each count, we need not under the concurrent sentence doctrine consider the sufficiency of the evidence on the remaining counts.
We turn, therefore, to a consideration of appellant's attack on the fairness of the trial itself. Webb's contentions in this respect are twofold; first, that the court erroneously permitted the admission of evidence of his reputation for violent collection practices in circumstances other than those specified by §§ 892(c) and 894(c), and, secondly, that the United States attorney prejudiced the trial by his references to appellant. The record reveals that appellant's contentions in the first regard are unfounded.
Section 892(c) requires two prerequisites before evidence of reputation of collection practices is admissible to show the understanding of the debtor and the creditor at the time of the extension of credit.2 Similar requirements are present under § 894(c). The record reveals the prerequisites were established leaving the question of admissibility of such evidence to the trial judge's discretion. Presumably the court is to strike a balance between the prejudice to the appellant and the prosecution's need for the evidence to make its case. In the first instance this weighing process is for the district judge, subject to appellate reversal for manifest abuse of his discretion. This, however, is not our case.
Appellant urges his second contention as a matter of plain error, subject to review without the necessity of a prior objection under Federal Rules of Criminal Procedure, 52(b).
As has been held in innumerable cases, it is the defense's burden to object to improper prosecutorial argument. Objection permits both the trial judge and the prosecutor himself to defuse, if possible, any prejudice inuring to the defendant. In the absence of an objection this court, pursuant to the mandate of F.R.Cr.P. 52(b), will consider assumed improprieties in the prosecutor's jury arguments which constitute "plain error." United States v. Lamerson, 457 F.2d 371 (5th Cir., 1972); United States v. Brown and Hayes, 451 F.2d 1231 (5th Cir. 1972); United States v. Fuentes, 432 F.2d 405 (5th Cir., 1970); Hall v. United States, 419 F.2d 582 (5th Cir., 1969); Rotolo v. United States, 404 F.2d 316 (5th Cir., 1968); Sikes v. United States, 279 F.2d 561 (5th Cir., 1960). Compare United States v. Briggs, 457 F.2d 908 (2nd Cir., 1972); United States v. Strauss, 443 F.2d 986 (1st...
To continue reading
Request your trial-
U.S. v. Dennis
...cases, courts have rejected unavailability 10 as a prerequisite to the admission of reputation evidence. See, e. g., United States v. Webb, 463 F.2d 1324, 1327-28 (5th Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 338, 34 L.Ed.2d 251 (1972). In addition, § 894(c) allows evidence of prior cond......
-
U.S. v. Bowdach
...v. De Lutro, 309 F.Supp. 462, 467-468 (S.D.N.Y.1970); United States v. Curcio, 310 F.Supp. 351, 357 (D.Conn.1970); United States v. Webb, 463 F.2d 1324, 1328 (5th Cir. 1972). Reputation evidence has also been allowed to show the victim's state of mind in prosecutions for extortion under the......
-
U.S. v. Alvarez, 82-5780
...States v. Capo, 693 F.2d 1330, 1335 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1793, 76 L.Ed.2d 359 (1983); United States v. Webb, 463 F.2d 1324, 1328 (5th Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 338, 34 L.Ed.2d 251 The prosecutor commented that the jury would have no difficult......
-
U.S. v. Capo, 80-5903
...was based on evidence adduced at trial and the jury could readily evaluate the accuracy of the characterization. See U.S. v. Webb, 463 F.2d 1324, 1328 (5th Cir.1972). Other characterizations challenged were cured by the district judge's instructions or do not merit any The argument that the......