United States v. Yaughn

• Decision Date: 03 May 1974
• Docket Number: No. 73-2333.,73-2333.
• Citation: 493 F.2d 441
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon Franklin YAUGHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 441 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Leon Franklin YAUGHN, Defendant-Appellant.

No. 73-2333.

United States Court of Appeals, Fifth Circuit.

May 3, 1974.

Floyd M. Buford, Macon, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Eugene A. Medori, Jr., Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant, Leon Franklin Yaughn, was tried by a jury in the U. S. District Court for the Northern District of Georgia on an indictment charging Yaughn and two others with entering into a conspiracy to defraud, pass, publish, utter and possess counterfeit notes, in violation of 18 U.S.C. § 371. Yaughn was found guilty and this appeal followed.

This court has carefully examined all four of appellant's contentions and affirms the decision of the district court.

I.

Appellant Yaughn's first contention on appeal is that the admission of testimony about his passing of "funny 20's" to one Mills, in 1969, was evidence of a prior offense and, as such, was irrelevant and inadmissible because such evidence does not tend to prove the commission by the accused of the particular crime charged. Fabacher v. United States, 20 F.2d 735 (5 Cir. 1927).

Although the rule at common law is that proof of prior crimes is inadmissible for the purpose of showing the commission of the particular crime charged, there are exceptions. As early as 1842, the United States Supreme Court recognized that evidence of acts similar to those charged is admissible for the purpose of showing a common scheme, plan or system. Wood v. United States, 16 Pet. 342, 41 U.S. 339, 10 L.Ed. 987 (1842), United States v. Southerland, 428 F.2d 1152 (5 Cir. 1970). Furthermore, anything having a legitimate tendency to throw light on the accuracy, truthfulness and sincerity of a witness may be shown and considered in determining the credit to be accorded this testimony. United States v. Lefner, 422 F.2d 1021 at 1023 (9 Cir. 1970). It should be noted that the government did not initially attempt to bring forth evidence of past offenses to prove the defendant's state of mind or guilty knowledge. The case against Yaughn was a strong one, and the proffered testimony was sought in order to depict the witness' participation in the charged offenses. United States v. Broadway, 477 F.2d 991 (5 Cir. 1973).

In the instant case the evidence of a prior offense was not irrelevant and inadmissible. Its introduction at trial was not improper.

II.

During the trial, a Secret Service agent began to testify about a fingerprint test that had been taken, but was interrupted by the defendant's objection that the agent's testimony was not the best evidence because he had not been the party who had made the examination. The prosecuting attorney, in his closing argument, made some remarks relative to this, which appellant now claims was an improper attempt to create an inference of guilt.

Close examination of the closing arguments of both the prosecution and the defense demonstrates that the comments made by the prosecuting attorney were only in response to remarks made by the defense counsel in his closing argument. The prosecution had stated in his opening statement that it was necessary to use the testimony of people who were involved in the counterfeiting conspiracy in order to prove that the defendant committed the crime. The defense, then, in his closing summation, stated that it was not true that the government had to use these people, these co-conspirators, as witnesses. The defense went on to state that there are other methods which could be used to identify counterfeiters, "That's not true, merchants identify them, fingerprints identify them, there are all kinds of ways of proving the counterfeiting cases. When they tell you that's the only way they can prove it, that ain't true." The prosecutor then responded in his closing statement that the testimony of an accomplice was necessary in proving such a case, stating:

Ladies and gentlemen, I indicated in the beginning that this type of case can only be solved by such testimony. I did not mean to say, nor do I think I said, that counterfeiting cases in general can only be solved this way.

Certainly a man passing a counterfeit bill can be identified, certainly by a fingerprint which would be good circumstantial evidence on which the case could be made.

* * * * * *

There was much to-do made about the fact — the fact about the fingerprint examinations and the absence of fingerprints, but you will recall that when I asked the question of the agent whether there were fingerprint analyses in this case, and he said, `yes, I have my report,\' I asked him, I believe, `what does the report contain?\' or `would you read the report?\' —

At that point, the defense attorney objected to this reference to the fingerprint reports.

After reviewing the closing arguments in toto, this court finds that no prejudice resulted.

III.

During the latter part of his closing argument before the jury, the prosecuting attorney remarked, "No question about Mr. Yaughn's involvement in this case, ladies and gentlemen, I don't believe." Emphasis added. Appellant's counsel objected immediately, and moved for a mistrial. The trial court properly admonished the government attorney, who then stated:

My personal beliefs have no relevance in this case, ladies and gentlemen of the jury. I don\'t believe the evidence would justify that.

The motion for a mistrial by the defense was denied.

This court has clearly stated that when a serious question as to the propriety of certain closing arguments is raised on appeal, "The challenged arguments must be viewed in context, which necessitates a detailed examination of the development of the case. . . . It is the closeness of the evidence . . . which makes the errors committed by the prosecuting attorney prejudicial." United States v. Arendale, 444 F.2d 1260 (5 Cir. 1971). See, Wright, Federal Practice and Procedure, § 854, pp. 358-359.

This court finds, after having reviewed the comments in their proper context, that no prejudice resulted from these remarks. The trial court did not err in failing to grant the appellant's motion for a mistrial.¹

This court, upon examining all the evidence presented in this case and the entire record of trial, finds that this does not appear to be such a close case evidentially as to enable such minor impropriety to affect the jury's verdict.

IV.

Appellant's fourth contention presents the question: was it error for the trial court to allow the government to waive its opening argument to the jury.

At the conclusion of the presentation of evidence, and after both the government and the defense had rested their case, the government announced that it would waive its opening statement. Appellant objected. The trial court overruled the objection and stated,

It has been the practice and custom in this court to allow them to have an opening and concluding argument within their imposed time limit, and if they chose not to make an opening argument and reserve their time for concluding argument, they have that right.

We agree.

We realize that confusion is possible as to order of and waiver of jury summation, "the order of summing up varies somewhat in different jurisdictions."² The prevailing practice, however, gives the prosecution the closing argument to the jury. But, it should be noted also that these rules are subject to waiver. The practice in the district court where the trial in question took place is,³ as the district court stated:

. . . to allow them (the prosecution) to have an opening and concluding argument . . . and if they choose not to make an opening argument . . ., they have that right.

The law is well-settled on this question. In United States v. Kelly, 349 F.2d 720 (2nd Cir. 1965), cert. den. 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966), the defense attorney requested that the prosecution be required to sum up before the defense attorney made his summation. This request was denied. Upon careful review by a panel composed of Judges Medina, Moore and Marshall, Judge Medina stated, "We find no prejudicial error. . . ." Supra at 777. An even more detailed discussion is found in United States v. Barnes, 313 F.2d 325 (6 Cir. 1963).⁴ The court of appeals there held, "The closing argument is usually considered to be a right of the party carrying the affirmative of the issue or issues involved. . . . The right to close, as well as the right to open the argument may be waived. . . ." Emphasis added.

We hold that defendant Yaughn was not prejudiced by the prosecution's waiver of his opening statement. After careful review of all of appellant's contentions, the decision of the district court is, in all respects

Affirmed.

RIVES, Circuit Judge (dissenting): abused its discretion when it overruled

In my opinion, the district court Yaughn's objection to the proposed order of argument to the jury.

In the absence of the jury, Yaughn's attorney articulated an objection to what he anticipated might happen as to arguments:

"MR. LARSEN: Please the Court, during the informal conference between the Court and counsel there was an indication as to arguments, that the United States Attorney does not propose to make an opening argument but proposes only to make a concluding argument after an argument by the defense.

"I object to this on the grounds that such procedure would deny due process to the defendant Yaughn in this respect. The argument, as I understand the process of law to be, the other side is to have an opportunity to rebut the argument. The closing argument on the part of the Government is intended in our system of law for the purpose of rebuttal to enable the Government to rebut the argument of the defense. It is not intended as a time to make an affirmative argument for the Government so that the defense has no opportunity

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