United States v. Henry Horton Holder, M.D.

446 F.2d 1394, 1971 U.S. App. LEXIS 8448

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 1971
• Docket: 71-1430
• Status: Published

Opinion

PER CURIAM:

Appellant contends that the evidence is insufficient to establish guilt. We disagree; the record provides ample evidence of guilt.

Appellant further contends that the trial court erred in denying voir dire interrogation aimed at uncovering bias among prospective jurors toward a person convicted of the crime of abortion. Prior to empaneling the jury, the court directed that on cross-examination of appellant the government be restricted to inquiring whether appellant had been convicted of a felony, without identifying the nature thereof. Appellant’s counsel nevertheless identified the felony to the jury at the commencement of his opening statement and again by a specific question in his cross-examination of the first government witness.

It seems clear that appellant’s counsel deliberately disclosed the nature of the prior conviction for tactical reasons; appellant may not now predicate relief on a tactical error or mistake in strategy. United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963). Even if subsequent questioning by government counsel as to the nature of the felony could have harmed appellant, failure to raise timely objection constituted waiver.

The plain error rule is inapplicable.

* * * [W]e should invoke Rule 52 (b) in the very exceptional situation only, situations wherein it appears to be necessary in order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process.

Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969); United States v. Nolte, 440 F.2d 1124, 1127 (5th Cir. 1971).

Affirmed.