reversing conviction where prosecutor placed his own credibility in the balance against that of witness
How later courts described this case
- reversing conviction where prosecutor placed his own credibility in the balance against that of witness
- reversal of Gonzalez's conviction, April 16, 1971, is unreported
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge
(dissenting):
The majority opinion for reversal rests upon a theory that the prosecutor improperly placed his own credibility before the jury. I can come to no such conclusion upon the facts. Gonzalez, *764 Puco’s co-defendant, had taken the stand in his own defense as had Puco. Upon cross-examination of Gonzalez, the prosecutor prefaced a series of questions with the words “Do you recall telling me that * * *" or “Do you recall me asking you * * *” followed by a statement which Gonzalez impliedly had made to the prosecutor in his office. It was Gonzalez, not the prosecutor, who was testifying. To some of the questions Gonzalez gave an affirmative answer, to many a negative such as “I didn’t say that” or “I didn’t say that to you.” Concededly, a less personal approach in the formulation of the questions would have been preferable although this form is frequently used under similar situations. Gonzalez had every opportunity to deny that he had made the imputed statements and did not hesitate to do so. At stake was Gonzalez’ credibility — not the prosecutor’s. But even assuming error in these few questions in the course of the trial, unless the principles of Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969) are to be disregarded, this error would certainly fall into a “harmless” category. The many far more direct statements or misstatements of lawyers, witnesses and even the learned Court itself are erased from the jurors’ minds by that now-standardized segment of every charge usually advising the jury in substance that “you are to ignore completely etc.” The trial court here gave these instructions. As long as the jury system is to prevail, the jury is presumed to follow the court’s instructions. Only in the event of a Bruton 1 situation involving inability to confront has this presumption been dishonored.
As to knowledge of importation, appellant correctly states the principle prohibiting imputation of knowledge to a co-conspirator without more but here there was more from which the jury could have inferred knowledge of the Bolivian source.
I agree with the majority as to the other claims of error.
Finding no error in the judgment, I would affirm.
. Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968).