# United States v. Frank Gorham, Jr., United States of America v. Otis D. Wilkerson, A/K/A Robert N. Jones, A/K/A James Burgess

> Court of Appeals for the D.C. Circuit · November 28, 1975 · 523 F.2d 1088

URL: https://www.frixlaw.com/law-library/cases/9462191

## Case

- **Full name:** UNITED STATES of America v. Frank GORHAM, Jr., Appellant; UNITED STATES of America v. Otis D. WILKERSON, A/K/A Robert N. Jones, A/K/A James Burgess, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 28, 1975
- **Citations:** 523 F.2d 1088; 173 U.S. App. D.C. 139; 1975 U.S. App. LEXIS 11741
- **Precedential status:** Published
- **Opinion:** Concurrence by Bazelon
- **Judges:** Bazelon, MacKinnon, Robb
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462191

## How later opinions describe it (automated extraction)

- affirming trial court’s refusal to admit evidence bearing no legal relation to the charges but which might encourage a “conscience 11 verdict” of acquittal

## Opinion text

BAZELON, Chief Judge
(concurring):
I concur in parts (1) — (7) of the court’s opinion, and in the result of part (8). The issue addressed in part (8) is whether evidence must be admitted when its only relevance is to enable a jury to decide whether to exercise its nullification power. 1 In my opinion, the record in this case is plainly inadequate for deciding that issue.
*1099 Appellant’s entire claim is based on the trial court’s denial of a codefendant’s request that Judge Bryant be subpoenaed to testify. (Tr. 1649) The codefendant made no proffer of evidence, nor did he explain the reasons for requesting the subpoena. The appellants gave no indication that they joined in the request. Most important, none of the defendants objected to the trial judge’s ruling after he explained that he had spoken to Judge Bryant and had been informed by Judge Bryant that his order of October 13 was not intended to bar prosecution.
Since there was neither a proffer nor an objection, the only question properly before us is whether the refusal to grant the subpoena — or admit the evidence— constitutes plain error, “affecting substantial rights.” 2 Since we cannot place the trial court’s decision within that category, I join in affirmance.
. That issue was not decided in United States v. Dougherty, 154 U.S.App.D.C. 76 , 473 F.2d 1113 (1972), which holds only “that a trial judge need not deliver an instruction explaining the process of jury nullification.” (173 U.S.App.D.C. page -, 523 F.2d page 1098, supra)
. Fed.R.Crim.Pro. 52(b); cf. Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462191. Public record. Not legal advice.