United States v. Young

Decision Date20 February 1985
Docket NumberNo. 83-469,83-469
PartiesUNITED STATES, Petitioner v. Billy G. YOUNG
CourtU.S. Supreme Court

Respondent was charged with various federal offenses involving a scheme to defraud a refinery by submitting false certifications that oil purchased by the refinery from respondent's company was crude oil when in fact it was less valuable fuel oil. At the trial in District Court, defense counsel in his closing argument impugned the prosecutor's integrity and charged that the prosecutor did not believe in the Government's case. No objection to defense counsel's summation was made at the time, but in rebuttal arguments the prosecutor stated his opinion that respondent was guilty and urged the jury to "do its job"; defense counsel made no objection. Respondent was convicted on several counts, and on appeal alleged that he was unfairly prejudiced by the prosecutor's response to defense counsel's argument. The Court of Appeals reversed and remanded for a new trial, holding that under case law of that Circuit, such remarks constituted misconduct and were plain error, and that appellate review was not precluded by defense counsel's failure to object at trial.

Held: The prosecutor's remarks during the rebuttal argument, although error, did not constitute "plain error" that a reviewing court could properly act on under Federal Rule of Criminal Procedure 52(b), absent a timely objection by defense counsel; on the record, the challenged argument did not undermine the fairness of the trial. Pp. 6-20.

(a) The kind of advocacy on both sides as shown by the record has no place in the administration of justice and should neither be permitted nor rewarded; the appropriate solution is for the trial judge to deal promptly with any breach by either counsel. Pp. 6-11.

(b) The issue is not the prosecutor's license to make otherwise improper arguments, but whether his "invited response" taken in context unfairly prejudiced the defendant. Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321. In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's conduct. The impact of the evaluation has been that if the prosecutor's remarks were "invited" and did no more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction. Pp. 11-14.

(c) The plain-error exception of Rule 52(b) to the contemporaneous-objection requirement is to be used only in those circumstances in which a miscarriage of justice would otherwise result. Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claimed error against the entire record. When reviewed under these principles, the prosecutor's remarks in this case did not rise to the level of plain error. Viewed in context, the remarks, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice. Pp. 14-20.

736 F.2d 565 (10th Cir.), reversed.

Michael McConnell for petitioner, pro hac vice, by special leave of Court.

Burck Bailey, Oklahoma City, Okl., for respondent.

Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to review the reversal of respondent's conviction because of prosecutorial comments responding to defense counsel's closing argument impugning the prosecution's integrity and belief in the Government's case.


Respondent Billy G. Young, as vice president and general manager of the Compton Petroleum Corporation in Abilene, Texas, contracted in 1976 and 1977 to deliver monthly supplies of "sweet" crude oil to the Apco Oil Corporation refinery in Cyril, Oklahoma. Some 205,000 barrels of oil were delivered under the contract between January and September 1977, but more than half of the oil delivered to Apco, approximately 117,250 barrels, consisted of fuel oil, an already refined product less valuable than crude oil. Compton's invoices accompanying those deliveries falsely certified that all of the oil was crude. Apco relied on those false certifications and reported to the Federal Energy Administration, in compliance with Government regulations, 10 CFR §§ 211.66, 211.67, and 212.131 (1976), the amount of crude oil it thought it was refining each month. The Federal Energy Administration in turn relied on Apco's reports to determine the national averages of tier categories of refined oil for purposes of equalizing the cost of crude oil under its entitlement program.

Respondent's scheme to deceive Apco by selling it cheaper fuel oil masquerading as "sweet" crude oil was relatively simple. Respondent arranged with an oil brokerage firm, owned by a longtime friend, to procure fuel oil from another source and sell it to Compton under the false certification that it was crude oil. Compton would then pay the brokerage firm 10 cents per barrel commission as a fee for the "recertification." Once in Compton's storage tanks, respondent had the fuel oil disguised as crude oil before delivering it to Apco by blending condensate, a high gravity liquid taken from the wellheads of natural gas wells, with the fuel oil.1 In September 1977, after an Apco technician performed a dis- tillation test on one of Compton's deliveries, Apco discovered that it had not been receiving crude oil as required by the contract, but rather a mixture of fuel oil and condensate. This discovery prompted the Federal Bureau of Investigation to launch an investigation which resulted in this prosecution.

On December 1, 1980, respondent and Compton were charged with 11 counts of mail fraud in violation of 18 U.S.C. § 1341, three counts of willfully and knowingly making false statements to a Government agency in violation of 18 U.S.C. § 1001, one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and with aiding and abetting in the commission of all 15 counts in violation of 18 U.S.C. § 2. A jury trial was held in the District Court for the Western District of Oklahoma.2 In his own defense, respondent testified that he had knowingly purchased fuel oil and delivered it to Apco, but he claimed that he thought such fuel oil could legitimately be certified as crude oil. He also believed that if condensate were blended with fuel oil, the result would be the equivalent of crude oil. Because Apco had not complained about the deliveries before September 1977, respondent thought that Apco was satisfied with the quality of oil he was supplying.

At the close of the case, the prosecutor summarized the evidence against respondent. Defense counsel began his own summation by arguing that the case against respondent "has been presented unfairly by the prosecution," and that "[f]rom the beginning" to "this very moment the [prosecution's] statements have been made to poison your minds unfairly." Tr. 542. He intimated that the prosecution deliberately withheld exculpatory evidence, and proceeded to charge the prosecution with "reprehensible" conduct in purportedly attempting to cast a false light on respondent's activities. Defense counsel also pointed directly at the prosecutor's table and stated: "I submit to you that there's not a person in this courtroom including those sitting at this table who think that Billy Young intended to defraud Apco." Id., at 543-544. Finally, defense counsel stated that respondent had been "the only one in this whole affair that has acted with honor and with integrity" and that "[t]hese complex [Department of Energy] regulations should not have any place in an effort to put someone away." Id., at 547.

The prosecutor did not object to defense counsel's summation, but in rebuttal argument he responded to defense counsel's claim that the Government did not believe in its own case:

"I think [defense counsel] said that not anyone sitting at this table thinks that Mr. Young intended to defraud Apco. Well, I was sitting there and I think he was. I think he got 85 cents a barrel for every one of those 117,250.91 barrels he hauled and every bit of the money they made on that he got one percent of. So, I think he did. If we are allowed to give our personal impressions since it was asked of me." Id., at 549. (Emphasis added.)

Continuing with a review of portions of the evidence against respondent, the prosecutor responded to defense counsel's statement that Apco was not defrauded:

"I don't know what you call that, I call it fraud.

"You can look at the evidence and you can remember the testimony, you remember what [the witnesses] said and what [respondent] admitted they said. I think it's a fraud." Id., at 550.

Finally, the prosecutor addressed defense counsel's claim that respondent had acted with honor and integrity. The prosecutor briefly recapped some of respondent's conduct and stated:

"I don't know whether you call it honor and integrity, I don't call it that, [defense counsel] does. If you feel you should acquit him for that it's your pleasure. I don't think you're doing your job as jurors in finding facts as opposed to the law that this Judge is going to instruct you, you think that's honor and integrity then stand up here in Oklahoma courtroom and say that's honor and integrity; I don't believe it." Id., at 552.

In turn, defense counsel did not object to the prosecutor's statements. Nor did he request any curative instructions and none were given.

The jury returned a verdict of guilty as to each of the mail fraud and false statement counts. Respondent was acquitted of interstate transportation of stolen property. Respondent was sentenced to two years' imprisonment on each count, to be served concurrently, and was fined $39,000.

On appeal, respondent alleged that he was unfairly prejudiced by the prosecutor's remarks made during closing rebuttal argument. In a per...

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