United States v. Orlander Raymond Brown

546 F.2d 166, 1977 U.S. App. LEXIS 10264
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 31, 1977
Docket75-2810
StatusPublished
Cited by45 cases

This text of 546 F.2d 166 (United States v. Orlander Raymond Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Orlander Raymond Brown, 546 F.2d 166, 1977 U.S. App. LEXIS 10264 (5th Cir. 1977).

Opinions

COLEMAN, Circuit Judge.

Orlander Raymond Brown was convicted of making and causing to be made false entries in certain books, records, and statements of the First National Bank of Tuskaloosa, 18 U.S.C. Section 1005.1 He was sentenced to a term of five years, six months to be served and the remainder on probation. Before Brown went to trial, his accomplice in the activity, Phillip A. Hargle, entered his plea of guilty and was the star witness for the prosecution. For reasons enunciated by the District Court, imposition of sentence was suspended as to Hargle and he was placed on probation for five years.

After hearing testimony which filled 779 pages of typewritten transcript, the jury deliberated 54 minutes before returning a guilty verdict.

The trial was not free of error, but finding those errors to have been harmless beyond a reasonable doubt, we affirm the Judgment of the District Court.

For the period charged in the indictment, May, 1973-August 2, 1974, Hargle was assistant cashier and head teller of the bank. Under the scheme for which appellant was convicted, Brown would “cash” checks at Hargle’s window, who would then hold the checks out of the normal bank channels until the defendant told him to go ahead and process them. In various ways, he had made numerous false entries to cover his tracks. In exchange for this, defendant gave Hargle “meats and vegetables, a new Buick, and $500-$600.” However, there came a time when there were 41 Brown “checks”, totaling $275,000, which Brown could not cover. Hargle confessed to bank officials. This prosecution ensued.

Appellant depends for reversal on two arguments: (1) The trial court erroneously and prejudicially restricted cross examination of Hargle concerning his motivation for appearing as a government witness; (2) The government was permitted in its clos[168]*168ing argument to obliquely comment on the failure of the defendant to take the witness stand in his own behalf.

Point Number 1

This issue is sharpened by the fact that without Hargle’s testimony the government could not have made out its case.

The transcript reveals that this is what happened:

Q. [By defense counsel] Mr. Hargle, Mr. Batchler [the assistant U. S. Attorney] asked you whether or not you entered a plea of guilty in this case and I believe you have indicated you have?
A. Yes, sir.
Q. And when was that plea of guilty entered?
A. I don’t remember the date. It was in Judge McFadden’s court in Birmingham.
Q. Approximately how long ago?
A. A month and a half or two months ago.
Q. And were you sentenced at that time?
A. No, sir.
Q. Are you now awaiting sentence?
A. Yes, sir.
Q. Have you been advised by your attorney as to what sentence, if any, you may expect?
A. Yes, sir.
Q. All right. Were you advised by your attorney of the recommendations of the probation officer, Mr. Perry Mathis?
MR. BATCHLER: Don’t answer that, we object to that, if Your Honor please, whether he was advised by any probation officer or anything else.
THE COURT: Sustain.
MR. HUBBARD: We except. If I may I would like to make an offer to show and I can do it at the bench.
THE COURT: All right, I will give you the opportunity to do it.
(Following proceedings were had outside the hearing of the jury.)
MR. HUBBARD: I offer to show the recommendations of the probation officer was that he be placed on probation and be so advised.
MR. BATCHLER: This is not a matter for the jury and it goes to matters covered by the court.
THE COURT: I think the report made to me was that you agreed upon a recommendation between the prosecutor and the defense counsel that upon a plea of guilty they would recommend to the court a specific sentence. I don’t have a specific recollection of the report. I do remember taking the man’s plea but the record will show I am sure I inquired about that but the probation office report or the pre-sentence report made to the court is not made available to either the prosecutor or the defense counsel except such part the court might decide to be revealed to them and if the probation officer has made a recommendation the only way the lawyers would know about it is that the court revealed that in a conference. My recollection is not clear as to whether I did that or didn’t. My recollection is that I didn’t.
MR. HUBBARD: Let me state this: When this matter came up at the pre-trial before the Magistrate both counsel represented at that time and it is my recollection that Mr. Thomason stated at that time that the probation officer had recommended probation for this defendant. I stand to be corrected but this is my recollection.
MR. BATCHLER: Judge, we want to state that during the course of the trial whether that occurred or didn’t occur is not part and parcel of any—
THE COURT: I assume what he is trying to do is to show that this man has agreed to plead guilty in return for the recommended sentence of an unknown quantity and that now he is testifying on behalf of the Government.
[169]*169I will sustain as far as any recommendation of the probation officer. The recommendation of the probation officer in the final analysis is not any part of the plea bargaining. ******
THE COURT: Well, as far as the recommendation of the probation officer as such I will adhere to the original ruling and sustain the objection.
MR. BATCHLER: Will you grant my request that the question should no way be considered? It is very prejudicial for him to ask about the presentence report and to mention the probation part.
THE COURT: I will give them instructions.
(The following proceedings were held within the presence and hearing of the jury-)
THE COURT: Ladies and Gentlemen, you will recall I am sure an instruction I gave you at the commencement of the trial that in the event the Court sustains an objection you are not to speculate on what the answer would have been had the Court permitted the question to be answered. It is the Court’s judgment that whether or not any recommendation made by the probation officer, what that recommendation was is totally irrelevant to the issues we will ultimately be called upon to decide.
Either side wish an exception to that instruction?
MR. THOMASON: No, sir.
MR. HUBBARD: No exception to the instruction but I do except to the Court’s ruling.

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Bluebook (online)
546 F.2d 166, 1977 U.S. App. LEXIS 10264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-orlander-raymond-brown-ca5-1977.