Petition for Writ of Certiorari — United States v. Young

238469 ||. FiLED

No.

—

ALBXANDEF Sees N

Iu the Supreme Court of the Muited Staten

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

V.

BILLY G. YOUNG 0

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REx E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW IL. FREY

Deputy Solicitor General

MICFAEL W. MCCONNELL

Assistant to the Solicitor General

Louis M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

m BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether a prosecutor may rebut closing defense

argument impugning the integrity of the prosecution

and asserting that the prosecutors themselves do not

believe in the defendant’s guilt by responsive argu-

ment that would be inappropriate in the absence of

such provocation.

2. Whether the court of appeals erred in reversing

on the basis of the prosecutor’s remarks when re-

spondent did not object to the remarks at trial.

3. Whether, assuming the prosecutor’s remarks

were improper, the court of appeals erred in failing

to determine whether they constituted harmless error.

(1)

Page

ES SR 1

EEE . A

Statement 6 2

Reasons for granting the peti tion 11

EAE 53 —ͤ————— 25

r . 1a

e 7 .. 12a

TABLE OF AUTHORITIES

Cases:

Brown v. United States, 411 U.S. 22222 21

Chapman v. California, 386 U.S. 1982822 21

Crumpton v. United States, 138 U.S. 3111 16

Donnelly v. DeChristoforo, 416 U.S. 667 19, 20, 22

Harrington v. California, 395 U.S. 250 21

Henderson v. Kibbe, 431 U.S. 1422 18, 20

Lawn v. United States, 355 U.S. 389 10, 12, 13

Milton v. Wainwright, 407 U.S. 3711 21

Namet v. United States, 373 U.S. 17999 18

United States v. Atkinson, 297 U.S. 157 17

United States v. Briggs, 457 F.2d 908, cert. denied,

EES RE 20

United States v. Flaherty, 668 F.2d 5660 13, 21

United States v. Foster, 711 F.2d 871 I 20, 21

United States v. Frady, 456 U.S. 152 16, 17, 18

United States v. Greer, 467 F.2d 1064, cert. denied,

e è˙TÄx e u 23

United States v. Harrison, No. 82-5031 (4th Cir.

r ...... 12

United States v. Hasting, No. 81-1463 (May 23.

EEE / .. 11, 12, 21

United States v. Hoffa, 349 F.2d 20, aff’d on other

eee 13

United States v. Isaacs, 493 F. 2d 1124, cert. de-

r è˙²˙— re 13

IV

Cases—Continued: Page

United States v. Kravitz, 281 F.2d 581, cert. de-

rr xx . 20

United States v. LaSorsa, 480 F. 2d 522, cert. de-

Re ee 13, 14

United States v. Latimer, 511 F.2d 499 15

United States v. Ludwig, 508 F.2d 140 .................. 15

United States v. Perry, 643 F.2d 38, cert. denied,

rr e AI en PE 14, 18

United States v. Praetorious, 622 F.2d 1054, cert.

re ei eiciaintitcteiisinnin- <ettieieien 13

United States v. Rios, 611 F.2d 133 15

United States v. Roberts, 618 F.2d 530, cert. denied,

EERE . ee 23

United States v. Schwartz, 655 F.2d 140 ............... 13

United States v. SoconyeVacuum Oil Co., 310 U.S.

%%%%%%ͤQö . 8 16, 17, 21, 23

United States v. Sullivan, 421 F.2d 67 13

United States v. Tham, 665 F.2d 855, cert. denied,

r / chan teniamibiiadiat tien 13

United States v. Trujillo, No. 82-6036 (11th Cir.

rr kiana: emails 12

United States v. West, 670 F.2d 675, cert. denied,

RACES aR: renner 12-13, 19

Wainwright v. Sykes, 433 U.S. 7ꝶꝝ/ꝝ272 18

Whitehorn v. United States, 380 F.2d 909 18

Statutes and regulation:

r a 2

.. a TC nL A TI 2

TREE NTS me NE I HY. aA 2

| TTS LMP A OL A IE Nee Ba Ret 21

Fed. R. Crim. P.:

TTT ARLES: 6 21

Rule 52 (o-) — ' 16, 17, 21

Miscellaneous:

ABA, Standards for Criminal Justice 35.8 (1980) 13

In the Supreme Court of the United States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

U.

BILLY G. YOUNG

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Tenth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

la-lla) is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on February 22, 1983. A petition for rehearing with

suggestion of rehearing en banc was denied on June

20, 1983 (App. B, infra 12a). On August 12, 1983,

Justice White extended the time to petition for a writ

(1)

2

of certiorari to and including September 18, 1983

(a Sunday). The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District

Court for the Western District of Oklahoma, respond-

ent was convicted on nine counts of mail fraud, in

violation of 18 U.S.C. 1341, and three counts of mak-

ing false statements to à government agency, in vio-

lation of 18 U.S.C. 1001.“ He was sentenced to two

years’ imprisonment and fines of $39,000. The court

of appeals reversed (App. A, infra, 1a-11la).

1. The evidence at trial showed that respondent,

vice president and general manager of Compton

Petroleum Corporation (“Compton”) in Abilene,

Texas, contracted in 1976 and 1977 to deliver quanti-

ties of Oklahoma “sweet” crude oil? to the Apco Oil

Corporation (“Apco”) refinery at Cyril, Oklahoma.

Some 205,000 barrels of oil were delivered between

January and September, 1977, but approximately

117,250 barrels consisted of fuel oil, an already re-

fined product different from and less valuable than

crude oil. Compton’s invoices accompanying those

deliveries falscly certified that all the oil was crude

1Prior to trial, the government dismissed one other mail

fraud count, and at the close of the evidence, the district court

granted a judgment of acquittal on a second mail fraud count.

The jury acquitted respondent on one count of interstate

transportation of stolen property (18 U.S.C. 2314). Compton

Petroleum Corporation was also indicted with respondent.

Prior to trial, the district court accepted the corporation’s

nolo contendere plea to the indictment and imposed a fine

(App. A, infra, 3a).

2 Crude oil is a liquid hydrocarbon in its natural state.

“Sweet” crude oil has a low sulfur content.

* *

oil. Apco relied on those false certifications and re-

ported to the Federal Energy Administration, in com-

pliance with government regulations, the amount of

crude oil it thought it was refining each month. The

FEA 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 entitlements program (App. A, infra, 2a-3a).

In December 1976, respondent agreed with Hugh

Bradley, Apco’s vice president of supply and trans-

portation, to increase the amount of crude oil that

Compton was delivering to Apco’s Cyril refinery.

Shortly afterward, respondent and Bradley signed a

contract formalizing that agreement; they later

amended the agreement to make it automatically re-

newable each month (Tr. 351-353, 508-511).

Although respondent caused certain amounts of

crude oil to be delivered to Apco in compliance with

the contract, he used other means of supply for the

remainder of the oil deliveries. In the same period

that respondent spoke with Bradley, respondent sug-

gested an arrangement with Kenneth Ross, a long-

time friend and business associate (Tr. 339-340).

Ross owned Prime Resources Corporation, an oil

brokerage firm (Tr. 303, 318-320). Under respond-

ent’s plan, Ross was to secure fuel oil and falsely

certify that it was crude oil; in turn, respondent

would have Compton pay Ross a 10¢ per barrel

commission as a fee for the recertification (Tr. 323,

339-340). Ross fulfilled his agreement; he began to

buy fuel oil from Producer’s Crude, Inc., an Abilene,

Texas oil reseller. The invoices from Producer’s

Crude to Prime Resources accurately stated that fuel

oil was transferred, but Prime Resources’ invoices to

4

Compton for the same oil certified that crude oil was

sold (Tr. 180, 253-254, 272, 306-311, 320-321, 421-

423).

The fuel oil was delivered from the refinery to two

holding tanks in Compton's yard in Abilene (Tr. 49,

84-90, 97, 125, 137-138, 156). To make it appear that

the tanks contained crude oil, Compton’s truck dis-

patcher painted a crude oil lease number on the tanks

(Tr. 99-101, 140-141). Several Compton truck drivers

then reloaded the fuel oil into Compton trucks and de-

livered it to the Apco refinery in Cyril (Tr. 96, 107-

111, 120-121, 124, 135-137, 153-155, 160, 165-66).

Though Compton’s drivers normally performed two

simple tests on crude oil obtained from a lease site,

they were told that it was not necessary to perform

any tests on the oil taken from the tanks in Compton’s

yard (Tr. 52-53, 105-106, 129, 144).*

At Apco’s Cyril refinery, the Compton drivers

emptied their fuel oil into a lease automatic custody

* Producer’s Crude bought the fuel oil from another Abilene

concern, Pride Refinery (Tr. 421-423). Respondent’s nephew,

Mike Rawlings, who worked for Producer’s Crude, transported

the fuel oil from the refinery to Compton’s yard in Abilene, a

little over three miles away. Rawlings made between two and

six round trips per day, thereby hauling twenty to twenty-five

thousand barrels of fuel oil each month from March through

September, 1977 (Tr. 84-90). Before Rawlings’ tenure, some

loads of fuel oil were moved by Compton drivers directly from

the Pride refinery to Apco at Cyril (Tr. 131, 163-164, 166-167).

* Those tests are known in the trade as “shakeouts.” A

small quantity of crude oil is placed in a device which meas-

ures its relative weight in degrees. This is referred to as the

“gravity” of the oil. In addition, the crude oil’s basic sediment

and water (BS&W) content is measured (Tr. 47, 52-53, 105).

5

transfer (“LACT”) unit. The LACT unit, which was

not manned, automatically measured the number of

barrels in each delivery. It also collected a small

sample of each barrel for later testing (Tr. 47, 375-

377). Such testing would reveal, inter alia, the rela-

tive weight—known as “gravity”—of the oil. A high

gravity crude oil, in the 35° to 40° gravity range,

yields greater quantities of gasoline and diesel fuel

after refining than does a lower gravity crude oil,

which yields more fuel oil and asphalt (Tr. 400-405,

414).° Apco wanted a high gravity crude for gasoline

production (Tr. 357, 400-403).

Because fuel oil has a low gravity, respondent made

arrangements to conceal what he was supplying. He

had Compton’s crude oil trader purchase from two

other companies quantities of condensate, a high

gravity liquid taken from the well heads of natural

gas wells. The condensate was delivered to a Compton

storage station at Chickasha, Oklahoma (Tr. 51, 53-

54, 64-66, 80, 179). Compton drivers later moved the

condensate to the LACT unit at Apco’s Cyril refinery

(Tr. 123-125, 130, 155). Since the condensate’s grav-

ity was 60° or higher, its blending with the fuel oil in

the LACT unit resulted in an increase in the gravity

measurement of the oil stream (Tr. 52, 56, 76).

Respondent’s scheme was common knowledge among

the Compton truck drivers who delivered fuel oil to

Apeo (Tr. 121, 157-158). Other Compton employees

were not as knowledgeable. When Kenneth Fuller,

Compton’s operations manager and respondent’s sec-

ond in command, discovered that fuel oil was being

delivered to Apco, he confrontec respondent, who

Fuel oil comes from the “bottom of the barrel” and is not

a profitable product for a refinery (Tr. 422, 424).

6

replied that there was “no problem” with such de-

liveries (Tr. 72-73, 76-77). And in April 1977,

Homer Reves, Compton’s chief accountant, told an-

other employee that something was not right about

the Apco transaction, because Compton was buying

oil from Prime Resources yet was paying 2 second

company for most of the oil (Tr. 201-202). On one

occasion, L. K. Bird, another Compton accountant,

received an invoice from Prime Resources for “burned

fuel” rather than crude oil. Bird showed the invoice

to Reves, who said that fuel oil was being delivered

to Apco contrary to the terms of Compton’s contract

with Apco. Reves also said that he believed that

Prime Resources was being paid a fee for changing

the certification concerning the oil (Tr. 251, 261-

262). Reves returned the fuel oil invoice to Prime,

and he later received in its place an invoice for crude

oil (Tr. 268-269).° In addition, Judy Boeshart, a

Compton production supervisor, heard respondent tell

another Compton employee that fuel oil would be

invoiced through Ken Ross, who would change the

certifications to reflect crude oil instead. Ross’s fee

for this service was to be 10¢ per barrel (Tr. 273-

274).

Despite the growing numbers of persons at Compton

who were aware of respondent’s scheme, Apco was

slow to discover it. Not until September 1977, as the

result of an investigation prompted by another com-

pany’s delivery of fuel oil, did Apeo determine that

After the instant investigation began, Kenneth Ross and

his wife Jerit, who had prepared the invoices containing false

certifications that crude oil was sold, substituted in Prime

Resources’ files new invoices that correctly stated that fuel

oil had been sold (Tr. 306-307, 320-322).

7

respoudent also was furnishing fuel oil. Later in

September, a sample was taken from the LACT unit

used by Compton, and an Apco laboratory technician

performed a distillation test on that sample.“ The

technician’s conclusion was that the oil provided by

respondent was not crude oil (Tr. 354-355, 368, 378-

379, 403-405). On learning of the test results, Don

Heavin, Apco’s pipeline superintendent and a friend

of respondent, called respondent and asked if he was

delivering virgin crude oil. Respondent said that he

was (Tr. 379).* Heavin reported the test results to

Hugh Bradley, and afterwards the Compton deliveries

decreased (Tr. 354-355, 378-381).° Because of re-

spondent’s fraudulent delivery of a fuel oil/condensate

mixture, Apco needlessly spent time and money dupli-

cating the refinement of already refined fuel oil. In

addition, the refining process produced too much fuel

7A distillation test is more complicated than the simple

gravity and BS & W tests that normally were performed (Tr.

368, 376).

* Earlier, when the other company’s fuel oil delivery was

discovered, Hugh Bradley of Apco called respondent and

asked if respondent likewise was delivering fuel oil. Respond-

ent assured Bradley that he knew nothing about deliveries of

fuel oil (Tr. 358).

In March 1979, two FBI agents interviewed respondent as

part of an investigation into allegations that various compa-

nies had sold fuel oil to Apco in 1977 and had falsely certified

that it was crude oil (Tr. 291-293). Respondent told the

agents that Compton had sold oil to Apco in 1977, but he

maintained that he had sold virgin crude oil, not fuel oil certi-

fied as crude, Respondent also told the agents that if he had

discovered that Compton was selling fuel oil, he would have

immediately terminated the deal (Tr. 294).

8

oil for A peo's needs and an insufficient amount of gas-

oline (Tr. 357, 378, 403).

2. In his own defense, respondent admitted that he

had knowingly purchased fuel oil from Prime Re-

sources, but he claimed that he thought that such

fuel oil could legitimately be certified as erude oil.

He based this contention on his knowledge that erude

oil had been sold in the past as fuel oil, from which

he concluded that the reverse could be true. Alterna-

tively, he said that he believed that if condensate were

blended with fuel oil, the result would be the equiva-

lent of a barrel of crude oil (Tr. 477-478, 484, 527).”

Because he had received no complaint from Apco

prior to September 1977, he said that he believed that

Apco was pleased with the stream of oil he was sup-

10 Throughout this period, Apco filed monthly reports with

the FEA concerning the amounts of crude oil that Apco

thought it was refining (Tr. 431, 434). Using those reports

and similar ones filed by other crude oil refiners, the FEA

determined the average monthly price of crude oil per cate-

gory. Those refiners who had access to cheaper oil then had

to purchase entitlements, i.e., pay into a fund, while those who

paid more than the national overage received rebates from this

fund. The purpose of the entitlements program was to equalize

the cost of crude oil among all refiners nationwide (Tr. 370-

371, 431-433). Refiners were not suposed to report fuel oil

that they received, and they were not entitled to any compen-

sation for purchases of fuel oil (Tr. 433-434, 439-440). The

Apco official in charge of regulatory compliance testified that

the company would have to return the entitlements payments

it received in connection with the fuel oil deliveries (Tr. 440).

11 An Apco chemist had previously testified, however, that

condensate—the additive respondent relied on to support his

claim that his stream of oil was equivalent to crude oil—had

very little use in the refining process and did not yield useful

products (Tr. 416-417).

plying (Tr. 495). Respondent admitted that he had

lied to Heavin, Bradley, and the FBI agents by saying

that he had not sold fuel oil to Apco (Tr. 487, 496-

497, 515-518), but he maintained that the composite

stream of oil he had provided to Apco was better than

what Apco otherwise was receiving (Tr. 494).

3. In closing argument, the prosecutor summar-

ized the evidence against respondent. Respondent’s

attorney began his own summation by arguing that

respondent’s case had been presented unfairly by the

prosecution, and that “[f]rom the very beginning”

to “this very moment,” the government had attempted

te “poison [the jury’s] minds unfairly” (Tr. 542).

He went on to charge the prosecution with reprehen-

sible” conduct in purportedly attempting to cast a

false light on respondent’s conduct (Tr. 543). De-

fense counsel also pointed to the prosecution table

and said, “I submit to you that there’s not a person

in this courtroom, including those sitting at this

table, who think that [respondent] intended to de-

fraud Apeo” (Tr. 543-544). Finally, near the con-

clusion of his argument, respondent’s attorney said

that respondent had been the only person in the case

who had acted with “honor and integrity” (Tr. 547).

In rebuttal, the prosecutor responded to defense

counsel’s claim that the government did not believe in

its own case by saying (App. A, infra, 9a; Tr. 549):

I think [defense counsel] said that not anyone

sitting at this table thinks that [respondent]

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 im-

pressions since it was asked of me.

10

After reviewing some of the evidence against re-

spondent, the prosecutor then said, “I don’t know

what you call that, I call it fraud. You can look at

the evidence and you can remember what they said

and what he admitted they said. I think it’s a fraud”

(App. A, infra, 9a; Tr. 549-550).

Government counsel also responded to defense coun-

sel’s claim that Apco had not suffered any loss in the

FEA’s entitlement program; the prosecutor said that

he thought that Apco would have to make some kind

of restitution (App. A, infra, 9a-10a; Tr. 550-551).

Finally, the government attorney addressed counsel’s

claim that only respondent had acted with honor and

integrity. The prosecutor briefly reviewed some of

respondent’s conduct and suggested that such conduct

did not constitute honor and integrity and that the

jury would not be doing its duty by ignoring the

court’s instructions and acquitting on such a concept

(App. A, infra, 10a; Tr. 552). Respondent’s attor-

ney did not object to any of these statements.

4. Despite respondent’s failure to object at trial,

the court of appeals held that the prosecutor’s state-

ments constituted misconduct and warranted reversal

(App. A, infra, 10a). The court rejected the govern-

ment’s argument, based on this Court’s decision in

Lawn v. United States, 355 U.S. 339, 359 n.15

(1958), that the prosecutor’s statements were invited

by respondent’s attorney’s own arguments. The court

said instead that “the rule is clear in this Circuit

that improper conduct on the part of opposing coun-

sel should be met with an objection to the court, not

a similarly improper response” (App. A, infra, IIa).

Judge McWilliams dissented without opinion (ibid.).

The court also denied the government’s rehearing

petition by the same vote (App. B, infra, 12a).

11

In that petition, the government argued that the court

of appeals had erred in not considering whether the

prosecutor’s statements were harmless in light of the

total record, particularly since there was overwhelm-

ing proof of respondent’s guilt. In connection with

that argument, the government called the court’s at-

tention to this Court’s then pending consideration of

a similar issue in United States v. Hasting, No. 81-

1463 (May 23, 1983). In addition, the government

argued that the court of appeals had erred in finding

the prosecutor’s arguments to be “plain error” when

respondent’s counsel’s failure to object had deprived

the district court of an opportunity to remedy any

purported error. Finally, the petition noted that the

decision below appeared to be inconsistent with this

Court’s decision in Lawn, supra, and other court of

appeals’ decisions after Lawn. The court denied re-

hearing without opinion (App. B, infra, 12a).

REASONS FOR GRANTING THE PETITION

Defendant’s convictions for mail fraud and mak-

ing false statements to a government agency were

reversed by a divided panel of the court of appeals

on a finding that certain comments made by the

prosecutor during rebuttal argument, though not ob-

jected to at trial, were plain error. The comments

were in direct response to improper remarks by de-

fense counsel placing the good faith of the prosecution

in issue. The court held that the prosecution has no

right of reply to improper defense remarks. The

court made no finding of prejudice to the defendant,

and did not address the government’s argument that

the comments, if error, were harmless. The decision

1 Hasting was decided before rehearing was denied below.

12

thereby directly conflicts with decisions of this Court

concerning a prosecutor’s right to reply to improper

arguments by the defense (Lawn v. United States,

355 U.S. 339, 359 n.15 (1958)), the defendant’s

obligation to object to improper remarks by the pros-

ecutor at trial (United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 239 (1940)), and the appellate

courts’ duty to consider whether any trial error is

harmless (United States v. Hasting, No. 81-1463

(May 23, 1983) ).

The decision of the court of appeals has serious

implications for the administration of the criminal

justice system in the federal courts, conflicts with

numerous decisions of other circuits, and warrants

review by this Court.

1. In Lawn, 355 U.S. at 359-360 n.15, this Court

held that a defense counsel’s closing argument that

attacked the government’s good faith in bringing the

prosecution and accused two key government wit-

nesses of being perjurers “clearly invited the [pros-

ecutor’s} reply,” in which the government vouched

for the witnesses’ credibility.“ Most courts of ap-

peals have followed Lawn and have held that a pros-

ecutor’s arguments made in response to attacks by

defense counsel in closing argument do not constitute

reversible error. E.g., United States v. Trujillo, No.

82-6036 (11th Cir. Sept. 9, 1983); Unitec! States

v. Harrison, No. 82-5031 (4th Cir. Sept. 6, 1983);

United States v. West, 670 F.2d 675, 688-689 (7th

% Similarly, in Socony-Vacuum Oil Co., this Court recog-

nized the legitimacy of prosecutorial comments vouching for

the government's belief in the defendant’s guilt, as a “rebut-

tal” to defense arguments placing the government’s views at

issue (310 U.S. at 242), though in that instance the Court

found that the particular comments “overstep[ped] the

bounds” (ibid.).

18

Cir.), cert. denied, 457 U.S. 1124 (1982); United

States v. Flaherty, 668 F.2d 566, 598 (Ist Cir.

1981); United States v. Tham, 665 F.2d 855, 862

(9th Cir. 1981), cert. denied, 456 U.S. 944 (1982);

United States v. Schwartz, 655 F.2d 140, 142 (8th

Cir. 1981); United States v. Praetorious, 622 F.2d

1054, 1060-1061 (2d Cir. 1979), cert. denied, 449

U.S. 860 (1980); United States v. Isaacs, 493 F.2d

1124, 1164-1165 (7th Cir.), cert. denied, 417 U.S. 976

(1974) ; United States v. LaSorsa, 480 F.2d 522, 526

(2d Cir.), cert. denied, 414 U.S. 855 (1973); United

States v. Sullivan, 421 F.2d 676, 677 (5th Cir. 1970)

(per curiam) ; United States v. Hoffa, 349 F.2d 20,

50-51 (6th Cir. 1965), aff’d on other grounds, 385

U.S. 293 (1966). See also ABA, Standards for Crim-

inal Justice 3-5.8, commentary at 3.91 (1980) (“[A]

prosecutor may be justified in making a reply to an

argument of defense counsel that may not have been

proper if made without provocation.“).

The prosecutor’s statements in this case fall easily

within the government’s right of reply recognized in

Lawn. As in Lawn, it was defense counsel who raised

the issue of the prosecutor’s personal beliefs. In his

closing argument, respondent’s counsel asserted that

“there’s not a person in this courtroom including

those sitting at this table [the prosecutors] who think

that Billy Young intended to defraud Apco” (Tr.

543-544). Having placed the prosecutor’s good faith

in issue, respondent opened the door for the prosecu-

tor’s direct response (Tr. 549, 550) :

The comment by defense counsel in Lawn was similar:

“that the United States Attorney and his assistant in charge

of the case ‘had been instructed, or in my opinion they never

would have done this’” (355 U.S. at 359-360 n.15).

14

I think he 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.

* * * * *

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

You can look at the evidence and you can re-

member * * * what they said and what he ad-

mitted they said. I think it’s a fraud.

Similarly, the prosecutor’s comments on respondent’s

“honor and integrity” and his reminder to the jury

that their duty is “in finding facts as opposed to

the law” (Tr. 552) were in response to defense coun-

sel’s argument to the jury that respondent was “the

only one in this whole affair that has acted with

honor and integrity” and that “[t]hese complex eco-

nomic regulations should not have any place in an

effort to put someone away” (Tr. 547).

Under these circumstances, “the prosecutor was

certainly entitled to reply with rebutting language

suitable to the occasion.” United States v. LaSorsa,

supra, 480 F.2d at 526. As the Second Circuit has

stated, “in light of the fact that the defense lawyers

attacked the credibility and honesty of the Govern-

ment’s case in their closings, the Government’s state-

ments * * * were understandable if not laudable.”

United States v. Perry, 643 F.2d 38, 51 (2d Cir.),

cert. denied, 454 U.S. 835 (1981).

The court of appeals appeared to recognize that

the defense comments were “improper conduct” (App.

A, infra, IIa), but it nevertheless refused to apply

15

this Court’s holding in Lawn.” Instead, the court

followed the Tenth Circuit’s line of cases, developed

without reference to Lawn, which holds that “even

if improper argument is made by defense counsel, the

door is not thereby opened to similar conduct by the

prosecution.” See United States v. Rios, 611 F.2d

1335, 1343 (1979); United States v. Latimer, 511

F. 2d 498, 503 (1975); United States v. Ludwig, 508

F. 2d 140, 143 (1974).“ Indeed, the court below em-

phasized the per se nature of its rule when it said

(App. A, infra, IIa) that “the rule is clear in this

Circuit that improper conduct on the part of opposing

counsel should be met with an objection to the court,

% The government’s brief on appeal expressly relied (Br.

15) on Lawn for its argument that the rebuttal comments

were invited by defense counsel’s statements in his summa-

tion. The court of appeals did not cite Lawn, but simply

followed contrary Tenth Circuit precedent.

1 The Tenth Circuit’s current position evolved indirectly,

through dictum, without citation to Lawn or to decisions of

any other circuit. The rule was first announced in Ludwig

(508 F.2d at 143). However, the government in Ludwig did

not argue that the prosecutor’s comments at issue were a

permissible response to defense comments, but conceded

they were in error. The government’s argument—rejected

by the court—was that the error was harmless “in view of

numerous complaints directed against defense counsel’s own

conduct” (ibid.). In Latimer, the court faced the issue of

improper response to a proper argument by the defense (see

511 F.2d at 503), quoting the Ludwig rule in dictum. Finally,

in Rios, the court concluded that the record did not support

the government’s claim that the prosecutor’s comment was

in response to the defense (611 F.2d at 1343). Thus, the

court’s statement of the general rule against a prosecutor’s

right to reply (ibid.) was dictum. The instant case is appar-

ently the first in which the rule has been employed in clear

contravention of Lawn.

16

not a similarly improper response.” This per se rule

clearly conflicts with this Court’s decision in Lawn

and with the rule generally followed by the other cir-

cuits; it should be corrected.”

2. Even assuming arguendo that the court below

was correct in finding that the prosecutor’s rebuttal

argument was improper, the court was still wrong in

finding that those comments, which were not ob-

jected to at trial, were proper grounds for reversal

on appeal. This Court has held that “counsel for the

defense cannot as a rule remain silent, interpose no

objections, and after a verdict has been returned seize

for the first time on the point that the comments to

the jury were improper and prejudicial.” Socony-

Vacuum, 310 U.S. at 238-239; see Crumpton v.

United States, 138 U.S. 361, 364 (1891). The “plain

error” exception to this rule, set out in Fed. R. Crim.

P. 52(b), must “be used sparingly, solely in those

circumstances in which a miscarriage of justice would

otherwise result.” United States v. Frady, 456 U.S.

152, 163 n.14 (1982). If a defendant has failed to

object to the prosecutor’s statements to the jury at

the time they were made, an appellate court may not

reach an error contained in them unless it is ‘ “ob-

vious’ or if it would“ ‘otherwise seriously affect the

fairness, integrity or public reputation of judicial

proceedings.“ Socony-Vacuum, 310 U.S. at 239,

17 Moreover, we dispute the court of appeals’ apparent as-

sumption that an objection is as effective as a response in

nullifying the impropriety of the defense argument. Advice

to the jury that the defense argument is improper, while

chastising counsel, does not answer the factual assertion of

prosecutorial hypocrisy made in such an argument. In our

view, fairness requires that the prosecution itself be permitted

to respond.

17

quoting United States v. Atkinson, 297 U.S. 157, 160

(1936) ; accord, Frady, 456 U.S. at 163 n.13.

The court of appeals apparently concluded that the

prosecutor’s comments in this case constituted “plain

error” simply on the ground that the subject of im-

proper prosecutorial comments had been addressed

frequently and forcefully by that court on previous

occasions (App. A, infra, 10a) :

Considering the position of this Court on the

issue of prejudicial statements made by the pros-

ecution during argument to the jury, the above-

quoted remarks were sufficiently egregious as

to constitute plain error. Thus, the failure of

Mr. Young’s counsel to enter an objection at the

time they were made is not fatal to this appeai.

In fact, however, plain error cannot be found on the

basis of the nature of the error alone; “each case nec-

essarily turns on its own facts” (Socony-Vacuum, 310

U.S. at 240). Here, the court of appeals failed to

consider whether the error, if it was error, “affect[ed]

substantial rights” of the respondent. See Fed. R.

Crim. P. 52(b). The court made no showing what-

ever that, in the context of this trial, respondent was

prejudiced by the remarks.” After all, the trial court

cautioned the jury at the beginning of trial that ar-

guments of counsel were not evidence (Tr. 21), and,

as we have shown, the prosecutor could properly—

even if erroneously—have believed that his responses

were sanctioned by Lawn. Consequently, appellate

consideration of the prosecutor’s comments, which

were not obviously prejudicial and which respondent

did not see fit to mention at trial, was unwarranted

under the doctrine of plain error. Respondent’s fail-

18 We show in Point 3, infra, that the prosecutor’s remarks

could not reasonably be found to have been prejudicial to

respondent.

18

ure to object at trial should have been held fatal to

his claim. United States v. Perry, swpra, 643 F.2d at

51; Whitehorn v. United States, 380 F.2d 909, 913

(8th Cir. 1967).

A closing argument is a particularly inappropriate

area in which to disregard the requirement of a

timely objection. The impact on the jury and at-

tendant prejudice to the defendant depend to a large

extent on factors such as tone, gestures, and em-

phasis, not perceptible on the cold record before an

appellate court. Because of these factors, the judge

and counsel at trial are in the best position to assess

whether prejudicial error has occurred. But here

neither the district court nor respondent’s attorney

saw anything improper in the prosecutor’s statements

at the time they were made. That casts considerable

doubt on the proposition that the statements were so

egregious that they led to a “miscarriage of justice”

(Frady, 456 U.S. at 163). Appellate consideration

of a trial court error such as this, which is not ob-

viously prejudicial and which the defense did not

mention at trial, has been condemned by this Court

as “extravagant protection.” Henderson v. Kibbe,

431 U.S. 145, 154 n.12 (1977); Namet v. United

States, 373 U.S. 179, 190 (1963).

Moreover, reversal of a conviction on the basis of

prosecutorial comments not objected to at trial un-

dermines the purpose of the contemporaneous objec-

tion requirement. As this Court has noted, “[o]rderly

procedure requires that the respective adversaries’

views * * * be presented to the trial judge in time to

enable him to deliver an accurate charge and to mini-

mize the risk of committing reversible error” (Hen-

derson v. Kibbe, 431 U.S. at 154).” As one judge has

observed :

0 Cf. Wainwright v. Sykes, 433 U.S. 72, 90 (1977). (“Any

procedural rule which encourages the result that [trial court]

19

[C]ounsel have a duty to the court, an obliga-

tion at least to permit the judge to conduct a

trial that finally determines the question at is-

sue. A defendant may not remain silent in re-

sponse to error and take his chances with the

verdict before moving for a mistrial. Nor may

he permit error to go unchallenged, then ask the

appellate court to reverse the conviction. —

United States v. West, 680 F.2d 652, 658 (9th Cir.

1982) (Wright, J., concurring). This point has spe-

cial force in the case of curable errors. Had defense

counsel in this case lodged an objection at trial, the

district court would have been able to give a caution-

ary instruction to the jury, thereby curing any error

that might otherwise have occurred. Donnelly v. De-

Christoforo, 416 U.S. 637, 644 (1974). Since re-

spondent’s attorney did not object, however, the trial

court had no occasion to issue an instruction. For

proceedings be as free of error as possible is thoroughly desir-

able, and the contemporaneous-objection rule surely falls

within this classification”. }

In Donnelly the Court considered the prejudicial impact

of an improper closing argument by a prosecutor, who had

stated that the defendant hoped that the jury would find him

guilty of something other than first degree murder (416 U.S.

at 640). Because the prosecutor and the trial judge had cau-

tioned the jury that the argument was not evidence, and be-

cause the trial court had given a cautionary instruction in

response to the defendant’s objection, this Court did not find

the argument to justify reversal of the conviction on habeas

review. The Court observed that “[a]lthough some occur-

rences at trial may be too clearly prejudicial for such a cura-

tive instruction to mitigate their effect, the comment in this

case is hardly of such character” (id. at 644). If the argu-

ment in Donnelly was capable of being cured by a cautionary

instruction, then the remarks in question here should certainly

be considered susceptible to correction.

20

the court of appeals to reach respondent’s claim not-

withstanding his failure to object, in the absence of

a showing that the prosecutor’s comments caused a

miscarriage of justice, frustrates the purposes of

the contemporaneous objection requirement. United

States v. Briggs, 457 F.2d 908, 912 (2d Cir.), cert.

denied, 409 U.S. 986 (1972) ; United States v. Kravitz,

281 F.2d 581, 587 (3d Cir. 1960), cert. denied, 364

U.S. 941 (1961).

This Court has observed that “[i]t is the rare

case in which an improper instruction will justify

reversal of a criminal conviction when no objection

has been made in the trial court” (Henderson v.

Kibbe, 431 U.S. at 154). It should be even rarer to

find an instance in which a prosecutor’s argument,

not objected to at trial, justifies reversal. Not only

is the error as easily correctible at trial as is the

jury instruction (see Donnelly v. DeChristoforo, 416

U.S. at 644), but it is less susceptible to accurate as-

sessment on an appellate record, and less likely to be

prejudicial to the defendant. “Isolated passages of a

prosecutor’s argument, billed in advance to the jury

as a matter of opinion not of evidence,” do not reach

the proportions of a miscarriage of justice. See id.

at 646; United States v. Foster, 711 F.2d 871, 883

(9th Cir. 1983).

3. The court of appeals reversed respondent’s con-

viction without any determination whether respond-

ent was prejudiced by the prosecutor’s statement or

whether, in the context of the total record, the chai-

lenged argument could be deemed to be harmless er-

ror. In United States v. Hasting this Court made

clear that “it is the duty of a reviewing court to

consider the trial record as a whole and to ignore

errors that are harmless, including most constitu-

21

tional violations” (slip op. 9; see also id. at 10 n.7).

The decision clarified and reaffirmed a principle

of long standing. See, e.g., Brown v. United States,

411 U.S. 223, 230-232 (1973); Milton v. Wainwright,

407 U.S. 371 (1972); Harrington v. California, 395

U.S. 250 (1969); Chapman v. California, 386 U.S.

18, 21-22 (1967). The Court in Hasting held that

the requirement of appellate “consideration of the

entire record prior to reversing a conviction” applies

to all “errors that may be harmless” (slip op. 10 n.7),

a category that undoubtedly includes improper sum-

mation arguments by the prosecutor, as Hasting it-

self bears out.” See also, e.g., Socony-Vacuum, 310

U.S. at 242; United States v. Foster, 711 F.2d at 883;

United States v. Flaherty, 668 F.2d at 598. The de-

cision below thus is in clear violation of the require-

ment that any adjudication of error be accompanied

by a harmless error analysis.”

The failure of the court of appeals to consider

whether the prosecutor’s comments prejudiced re-

spondent’s “substantial rights,” as required under

Fed. R. Crim. P. 52(b), exacerbates its disregard

for the need to consider the possibility that the error,

21 Hasting concerned a prosecutor’s reference during sum-

miation to the defendants’ failure to testify.

= The decision below is also, we submit, in violation of 28

U.S.C. 2111, which provides that “[o]n the hearing of any

appeal * * *, the court shall give judgment after an examina-

tion of the record without regard to errors or defects which

do not affect the substantial rights of the parties,” and of

Fed. R. Crim. P. 52 (a), which provides that “[a]ny error,

defect, irregularity or variance which does not affect substan-

tial rights shall be disregarded.”

if any, was harmless. The bare finding of “plain

error,” with no discussion of actual prejudice to the

defendant, no more establishes the existence of preju-

dice than does a straight reversal accompanied by no

consideration of the harmlessness of the error (as in

Hasting). Indeed, the fact that the error complained

of was not objected to at trial heightens the appellate

court’s obligation to consider the trial record as a

whole before reversing. When no prejudice was ap-

parent to the participants during the trial, an appel-

late court surely bears a special responsibility to

assay the record and weigh the consequences of the

perceived error before reversing and requiring a

retrial.

While this Court, if it concludes that there was

error and that the failure to object was not fatal to

respondent’s claim, may prefer to remand to the

court of appeals for consideration of the harmfulness

of the error of the prosecutor’s comments, we believe

that there can be no question that the prosecutor’s

comments did not substantially prejudice appellant’s

rights in the circumstances of this case. First, the

trial court cautioned the jury at the outset of the

trial that the lawyers’ arguments were not evidence.

Second, the jury was undoubtedly aware that the

prosecutor was an advocate and thus likely discounted

much of his argument as the viewpoint of a party to

the litigation. See Donnelly v. DeChristoforo, 416

U.S. at 640 n.7. Finally, and most importantly, the

evidence against respondent was overwhelming. Not

a single witness supported his defense that fuel oil

mixed with condensate is equivalent to crude oil,

and several witnesses expressly disavowed that posi-

tion. It was beyond question that respondent failed

to advise Apco of what he actually was supplying

and that the oil he supplied did not meet the require-

ments of his contract. Moreover, the evidence con-

clusively showed that respondent engaged in activi-

ties to conceal his scheme; he used an in

to recertify the fuel oil as crude oil, furnished a

quantity of condensate each month to raise the grav-

ity level of the oil he supplied to Apco, and conced-

edly lied in response to inquiries from both Apco and

government investigators. Under those circum-

stances, there was clear evidence of respondent’s

guilt. Cf. Socony-Vacuum, 310 U.S. at 239-240.

Not only was there strong evidence of respondent’s

guilt, but the error of the prosecutor’s remarks was

at most exceedingly marginal. As we have pointed

out, the comments with which the court of appeals

found fault were in fact prompted by defense coun-

sel’s own argument. Even if we are wrong in the

view that the argument was fair response, it is

scarcely possible that the prosecutor’s remarks could

have materially influenced the verdicts against re-

spondent. The prosecutor’s statements concerning his

belief that a fraud had been committed were nothing

more than a statement of the obvious.“ And his

statement that Apco might well have to make resti-

tution under the entitlements program was supported

by the evidence (see Tr. 440). Finally, the prosecu-

* Ordinarily, the principal risk of prejudice from prosecu-

torial assertions of personal belief in a defendant’s guilt arises

from the possibility that the jury will infer from such com-

ments the prosecutor’s possession of other information, not

placed in evidence at trial, supporting such a conclusion. See

United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980),

cert. denied, 452 U.S. 942 (1981); United States v. Greer, 467

F.2d 1064, 1072 (7th Cir. 1972), cert. denied, 410 U.S. 929

(1973). In the circumstances of the instant case, there plainly

was no such danger.

tor’s ambiguous statement urging the jury not to

acquit on a basis contrary to the trial court’s instruc-

tions and contradicting defense counsel’s claims that

respondent alone had acted with honor appear re-

sponsive to what amounted to a defense plea for

jury nullification and could not have prejudiced re-

spondent.

No citation of authority is needed for the proposi-

tion that the federal criminal justice system is over-

burdened, and that the scarcity of resources threatens

the interests both of society and of criminal defend-

ants as a class. A decision such as the instant one, by

requiring retrial of a case on account of unobjected-to

„error“ that carried with it little potential for prej-

udicing the defendant’s right to a fair trial and an

accurate verdict, further burdens the system. The de-

cision is especially difficult to justify because it was

reached without consideration of the principles laid

down in numerous decisions of this Court, and gen-

erally followed by the other courts of appeals, regulat-

ing disposition of issues of the sort presented by this

case. Under the circumstances, the Court can, we be-

lieve, make a material contribution to the fair and

efficient administration of federal criminal justice by

undertaking review of this case. And because the

principles that govern the disposition of th~ issues

presented herein appear to be relatively well set-

tled, the Court may deem summary reversal appro-

priate.

25

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SEPTEMBER 1983

Rex E. Lee

Solicitor General

STEPHEN S. Trotr

Assistant Attorney General

ANDREW L. FREY

MICHAEL W. McCoNNELL

Assistant to the Solicitor General

Louis M. Fisch

Attorney

la

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 81-1536

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

V.

BILLY G. YOUNG, DEFENDANT-APPELLANT

[Filed Feb. 22, 1983]

Appeal from the United States District Court

For the Western District of Oklahoma

(D.C. CR-80-175-E)

Before SETH, and MCWILLIAMS, Circuit Judges, and

BRIMMER *, District Judge *

* Of the United States District Court for the District of

Wyoming, sitting by designation.

PER CURIAM

After examining the briefs and the appellate rec-

ord, this three-judge panel has determined unani-

mously that oral argument would not be of material

assistance in the determination of this appeal. See

Fed. R. App. P. 34 (a); Tenth Circuit R. 10(e). The

cause is therefore ordered submitted without oral

argument.

Appellant Young, as vice-president and general

manager of Compton Petroleum Corporation (Comp-

ton Petroleum), entered into a contract to sell crude

oil to Apeo Oil Corporation in late 1976. Deliveries

under the contract were made between January 1977

and September 1977; but what Apco Oil Corporation

actually received from Compton Petroleum consisted

of a mixture of fuel oil and condensate crude oil, even

though the product had been designated and certified

throughout as low sulpher [sic], or Oklahoma “sweet”

crude. The evidence indicated that about half of the

oil delivered under the contract, approximately 117,250

barrels, was actually fuel oil. Additionally, in reli-

ance on the designation of the oil purchased from

Compton Petroleum as crude, Apco filed tallies of the

amount of crude oil that it believed it was refining

with the Federal Energy Administration, in compli-

ance with government regulations. These incorrect

figures were used by the FEA in establishing the na-

tional averages of tier categories of oil refined each

month for purposes of equalizing the cost of crude oil

under its entitlements program.

Compton Petroleum and Billy G. Young, the Ap-

pellant, were charged by indictment with eleven

counts of mail fraud under 18 U.S.C. § 1341, three

8a

counts of willfully and knowingly making false state-

ments to a government agency under 18 U.S.C.

§ 1001, one count of interstate transportation of

stolen property under 18 U.S.C. § 2314, and were also

charged with aiding and abetting in the commission

of all fifteen counts under 18 U.S.C. §2. A plea of

nolo contendere was accepted from Compton Petro-

leum on the entire indictment and a fine was im-

posed. Young was tried before a jury in the Western

District of Oklahoma. At the close of evidence, Count

Ten of the Indictment, alleging mail fraud, was dis-

missed. Subsequently, the jury returned a verdict of

guilty on the mail fraud and false statement charges.

The Appellant was acquitted of interstate transporta-

tion of stolen property. On appeal, Appellant argues

that the trial court erred in admitting statements

made out of court by a person no longer living at

the time of trial. It is further contended that the Ap-

pellant was unfairly prejudiced by remarks made

during closing rebuttal argument by the prosecutor.

During the course of the trial, statements made out

of Court by Homer Reves, the chief accountant and

office manager at Compton Petroleum during the pe-

riod that the alleged criminal activity took place,

were received as evidence, despite the fact that

Homer Reves had died more than three years prior

to trial. These were statements Reves had made to

accountants working under him, which the Govern-

ment claims were properly admitted as admissions

of an agent of a party opponent under Fed. R. Evid.

801(d)(2)(D). Appellant contends that there is no

indication that Homer Reves was his employee or

agent and that the Court improperly considered Reves

as such simply because the Appellant, as vice-president

4a

of Compton Petroleum, was higher in the corporate

chain of authority.

Ordinarily the statement of an accountant made

regarding his employment with a party will not be

considered hearsay under Rule 801 (d) (2) (D), even

in a criminal case. United States v. Diez, 515 F. 2d

892, n. 4 (5th Cir. 1975); Hayes v. United States,

407 F.2d 189 (5th Cir. 1969). The fact that the

statement was made by a corporate employee to an-

other corporate employee, rather than to a third party,

would not preclude the admission of that statement

against the corporation under Rule 801 (d) (2) (D).

Mahlandt v. Wild Canid Survival & Research Center,

Inc., 588 F.2d 626 (8th Cir. 1978). However, when

such a statement is offered against another corporate

employee, instead of the corporation, proper admis-

sion under Rule 801(d)(2)(D) will necessarily de-

pend on the nature of the relationship between the

declarant and the defendant. United States v. Pacelli,

491 F.2d 1108 (2d Cir. 1974), cert. denied, 419 U.S.

826; United States v. Coppola, 479 F.2d 1153 (10th

Cir. 1973).

Obviously, expanding the rule to include statements

made by any person who is subordinate to a party

opponent may create a loophole in the hearsay rule

through which evidence not contemplated by the au-

thors of Rule 801 could be admitted. On the other

hand, if the factors which normally make up an

agency relationship are present, the evidence should

not be excluded simply because the statement is of-

fered against a corporate officer, rather than the

corporation. Here the prosecution inquired into the

relationship between Billy Young and Homer Reves

on examination of the two accountants who worked

5a

under the deceased declarant during the period in

question. Johnnie Milton Huff testified as follows:

Q. Allright, sir. Who was your boss at Comp-

ton Corporation?

A. I worked primarily for Bill Young.

Q. And who made the decisions at Compton

Corporation so far as you knew?

A. So far as I knew making contract negotia-

tions Bill did that. Bill was in charge of the

operations. (Tr. 201.)

Lennox K. Bird also worked as an accountant un-

der Mr. Reves. He testified as follows:

Who told you what to do?

Homer Reeves.

And who old Homer Reeves what to do?

After—well, that would come from Bill

Young.

All right. And is that Mr. Young seated

over here in the gray suit?

Yes.

All right. May the record show he’s iden-

tified Mr. Young. How about Mr. White,

did Mr. White visit the site at Abilene to

tell you or Mr. Reeves what to do or anyone

that you ever saw? Did you ever see him

telling anyone what to do down there?

A. Not to the best of my knowledge, no.

SON O POPS

„ * * 4 *

Q. Who told you what to do during Mr. White’s

presidency?

A. Well, again I worked for Homer Reves di-

rectly.

6a

Q. Yes, sir.

A. And that’s where I received my orders up

until his demise.

Q. Yessir. And who gave Mr. Reves his direc-

tions during Mr. White’s presidency?

A. Again, he was under Mr. Young.

This evidence was sufficient to establish an agency

relationship between Mr. Young and Mr. Reves for

purposes t admitting the statements under Rule 801

(d) (2) (D'. The testimony was therefore not hear-

say and was properly admitted.

Despite the evidentiary propriety of the admission

of statements made by Homer Reves, there remains

the issue of whether the receipt of such testimony de-

prived the Appellant of his Sixth Amendment right

to confront witnesses testifying against him. The

inability to cross-examine a declarant attains particu-

lar significance in light of the fact that declarations

admitted under Rule 801(d) are defined out of the

hearsay rule as a matter of estoppel, as opposed to

being excepted from the rule as independently reli-

able statements. See United States v. Porter, 544

F.2d 936 (8th Cir. 1976) ; United States v. Robinson,

546 F.2d 309 (9th Cir. 1976), cert. denied, 430 U.S.

918; Louisell and Mueller, Federal Evidence, § 423.

The general rule applied in such situations comes

from Ohio v. Roberts, 448 U.S. 56 (1980), which in-

volved testimony taken at a preliminary hearing on

direct examination by the Defendant’s attorney and

admitted at trial after attempts to find the same wit-

ness failed. The court noted that, once it is shown

that a witness is not available, “the Clause counte-

nances only hearsay marked with such trustworthi-

ness” which will guarantee “no material departure

7a

from the reason of the general rule.“ Justice Black-

mun stated the majority position:

sible only if it bears adequate “indicia of reli-

ability.” Reliability can be inferred without

more in cases where the evidence falls within a

worthiness. 448 U.S. at 66.

A review of the case law on this issue indicates

that a case-by-case analysis of the circumstances un-

der which such testimony is offered is required. See

Dutton v. Evans, 400 U.S. 74 (1970); United States

v. Scholle, 553 F.2d 1109 (8th Cir. 1977); cert. de-

nied, 434 U.S. 940.

In a case with facts similar to this, it was held

that statements made by a witness who died prior to

trial would be admissible under Rule 801 (d) (2) (A),

(B), and (E). Regarding the applicability of the

Confrontation Clause, the court relied on the criteria

set forth in United States v. Scholle, 553 F.2d 1109

(8th Cir. 1977), cert. denied, 434 U.S. 940:

A highly relevant consideration is the degree of

prejudice imposed upon the fact-finding process

by the declarant’s nonavailability. We should

consider whether ue out-of-court statement bears

traditional indicia of reliability, whether it was

crucial to the government’s case, whether the

jury had an opportunity to weigh the credibility

of the extrajudicial statement, and whether ap-

propriate instructions were given by the trial

judge. 553 F.2d at 1119 (Citations omitted).

Other factors considered in Scholle included whether

the context of the statement and the identity of the

person spoken to bolstered the reliability of the state-

ment. Any motive that the declarant might have had

for lying when the out-of-court statement is made is

also relevant. Finally, any indication of a failure of

memory, perception, or expression should be taken

into account.

Here, it is significant that the two witnesses who

had worked under the direction of Homer Reves tes-

tified to essentially the same thing. The context in

which the statements were made and the parties to

which they were addressed were properly set forth.

Neither of the witnesses had any reason not to tell

the truth about what had been said to them: The

statements were made in the context of the manner

in which Compton Petroleum was performing under

its contract with the buyer of the oil and were not

bold assertions that fraud was being committed. All

of this would lend to their reliability. Also, an ex-

amination of the record indicates that no less than

five other witnesses testified as to the impropriety of

the Appellant’s conduct. Thus, the challenged state-

ments were cumulative upon a substantial body of

evidence tending to prove the same point. This goes

far in mitigating any prejudice which might have

accrued to the Appellant. Finally, the jury was prop-

erly instructed regarding their prerogative to assess

the credibility of the witnesses before them and the

weight with which any particular testimony may be

considered. These factors, taken as a whole, indicate

that the Appellant’s Sixth Amendment right to con-

front witnesses testifying against him was not abro-

9

gated by the admission of the statements of the de-

ceased accountant.

During his final argument to the jury, the prosecu-

tor made several statements regarding his personal

opinion of Mr. Young’s guilt. He also made one in-

correct reference to the amount by which the Appel-

lant was said to have profited from the activities

which he was indicted. Although no objection

entered by counsel for the Appellant at the time

remarks were made, it is still argued that the

cutor’s conduct substantially prejudiced the

lant at trial. A review of the trial transcript

that the prosecutor did indeed put his personal be-

cee

il

liefs at issue, as the following statements indicate

I think he said that not anyone sitting at this

table thinks that Mr. Young intended to defraud

Apeo. 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.

10a

back. All that money that Apco got for this

stripper and new oil, Al Green at the Apco trust

he’s going to get some kind of invoices. That’s

what I think.

I don’t know whether you call it honor and in-

tegrity, I don’t call it that, Mr. Bailey 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.

These portions of the transcript speak for them-

selves. The prosecutor repeatedly stated his opinion

regarding the Appellant’s intent to defraud, the like-

lihood of future prosecutorial action against one other

party involved in the scheme, and the duty of the

jurors to find the Appellant guilty. The issue has

come before this Court enough times in recent years

to establish beyond cavil that such statements con-

stitute prosecutorial misconduct. United States v.

Rios, 611 F.2d 1335 (10th Cir. 1975); United States

v. Latimer, 511 F.2d 498 (10th Cir. 1975); United

States v. Coppola, 479 F.2d 1153 (10th Cir. 1973);

United States v. Ludwig, 508 F.2d 140 (10th Cir.

1974).

Considering the position of this Court on the issue

of prejudicial statements made by the prosecution

during argument to the jury, the above-quoted re-

marks were sufficiently egregious as to constitute

plain error. Thus, the failure of Mr. Young’s coun-

sel to enter an objection at the time they were made

is not fatal to this appeal. United States v. Ludwig,

lla

supra. The Government argues that the prosecutor’s

comments were merely a reply to the defense coun-

sel’s assertion during his closing argument that no

one at the prosecutor’s table really believed that the

defendant had the intent to defraud. Yet, the rule is

clear in this Circuit that improper conduct on the

part of opposing counsel should be met with an ob-

jection to the court, not a similarly improper re-

sponse. As stated in United States v. Ludwig, supra:

The government concedes error in this emphatic

and personalized vouching for the integrity of

the state police but urges us to hold the error to

be harmless in view of numerous complaints di-

rected against defense counsel’s own conduct. We

can give no comfort to the proposition that un-

professional conduct upon the part of defense

counsel opens the door to similar conduct by gov-

ernment counsel. 508 F.2d at 143.

See also United States v. Rios, supra, United States

v. Latimer, supra.

In accordance with the foregoing, the judgment

and conviction must be and hereby are reversed and

remanded for a new trial.

Judge McWilliams dissents.

12a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

May TERM—June 20, 1983

Before Honorable Oliver Seth, Honorable William J.

Holloway, Jr., Honorable Robert H. McWilliams, Hon-

orable James E. Barrett, Honorable William E. Doyle,

Honorable Monroe G. McKay, Honorable James K.

Logan, Honorable Stephanie K. Seymour, Circuit

Court Judges, and Honorable Clarence A. Brimmer,

Jr.*

No. 81-1536

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v8.

BILLY G. YOUNG, DEFENDANT-APPELLANT

This matter comes on for consideration of appel-

lee’s petition for rehearing and suggestion for rehear-

ing in banc.

Upon consideration whereof, the petition for rehear-

ing is denied by Judges Seth and Brimmer, to whom

the case was submitted. Judge McWilliams, also on

the panel, voted to grant rehearing.

The petition for rehearing having been denied by

the —ä— to whom the case was submitted and no

ber of the panel nor judge in regular active serv-

on the Court having requested that the Court be

1

* District Court Judge of the United States District Court

for the District of Wyoming, sitting by designation.

13a

Appellate Procedure, the suggestion for rehearing in

banc is denied.

Howarp K. PHILLIPS

Clerk

By /s/ Robert L. Hoecker

RogERT L. HOBCKER

Chief Deputy Clerk

2K neee 07