# Petition for Writ of Certiorari — United States v. Young

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0022%3A2. Public record. Not legal advice.