Max Franklin Roper v. United States

403 F.2d 796, 1968 U.S. App. LEXIS 4822

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 20, 1968
• Docket: 24808_1
• Status: Published

Opinions

PER CURIAM:

Defendant, Max Franklin Roper, was convicted under a four count indictment of possession and sale of unstamped distilled spirits. 26 U.S.C. § 5205(a) (2). This resulted from two different episodes occurring on October 12 and 19, 1966. The testimony of five state and federal government agents showed that on these occasions the defendant sold non-tax-stamped whiskey to a government informer.

Denying his guilt, defendant testified that his 1955 green Oldsmobile, which the government agents claim they observed at the scene, was inoperative during October 1966 and subsequently. An automobile mechanic gave testimony that tended to corroborate this claim.

The first specification of error concerns three references on the part of the government to defendant’s reputation. The first two of these were simply remarks by agents that they knew the defendant by reputation longer than by sight. On each occasion the witness was promptly warned that his answer was not responsive. Moreover, there was no indication as to what defendant’s reputation was, although we note that bare reference to “reputation” by a government agent in the context of a criminal prosecution is somewhat ominous.

The third occasion was a direct inquiry made by the government later in the trial. This was caused, however, by a line of questioning by defense counsel that appeared to raise the defense of entrapment. Once the court determined that this defense was not in issue the matter was not pursued. We cannot say that defendant was prejudiced by any of this especially in view of the fact that he later revealed his criminal record in his own direct testimony.

Defendant next complains because the court did not charge the jury on the law as to alibi. This point is entirely without merit because defendant did not object to the charge that was given nor did he suggest any additional charge although he was specifically invited to do so. Nor do we think that the court’s failure to charge sua sponte on this matter is plain error under rule 52(b), see Goldsby v. United States, 1895, 160 U.S. 70, 77, 16 S.Ct. 216, 40 L.Ed. 343; Finley v. United States, 5 Cir. 1957, 246 F.2d 604, especially where as here the factual foundation for an alibi charge seems obscure, to say the least. Defendant says that if his automobile were inoperative at the time of the crimes, this would constitute an alibi. But the essence of alibi is the impossibility of the defendant’s guilt based on his physical absence from the locus of the crime. See, e. g., Black’s Law Dictionary 95 (4th ed. 1951). Under the most favorable interpretation to defendant the “alibi” here tended to show the absence not of defendant, but merely of his car, from the scene of the crime.

Finally, defendant complains because the prosecutor in effect told the jury in his closing statement that the defendant would not have been arrested were he not guilty. We reproduce in the margin the most offensive portion of this statement.¹

While we agree that this type of argument is not to be countenanced since it ignores the'fact that conviction requires proof beyond a reasonable doubt, we do not think that it is a proper basis for reversal on the facts of this case. Firstly, no objection was raised. Moreover, while it is dangerous for the prosecuting officer to vouch for the veracity of witnesses, this is not a case where the prosecutor’s remarks were based on something other than the evidence of record. Compare, Lawn v. United States, 1958, 355 U.S. 339, 359-360 n. 15, 78 S.Ct. 311, 2 L.Ed.2d 321 with Gradsky v. United States, 5 Cir. 1967, 373 F.2d 706, 710.

Affirmed.

1 . “And we submit to you that they are men of integrity, that they are men of intelligence, and they are men of fairness, and that they would not have brought this charge in the first place against this defendant unless he had been guilty, and an arrest would not have been made unless lie bad been guilty; and we submit to you that under those facts, lie would not be here today unless lie was guilty. And we ask in the name of justice that you bring in a verdict of guilty as charged. I thank you.”