Calvin Hayes, Jr. v. United States

Appellant was convicted for violating the Dyer Act, 18 U.S.C. § 2312 . His sole ground for appeal is that the prosecutor’s closing argument constituted comment on his failure to testify. Jurisdiction of this court is based on 28 U.S.C. §§ 1291 and 1294.

The rule that a defendant’s refusal to testify may not be commented on is, of course, based on the Fifth Amend ment and its statutory analogue, 18 U.S.C. § 3481 . Wilson v. United States, 149 U.S. 60 , 13 S.Ct. 765 , 37 L.Ed. 650 ; Griffin v. State of California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 . “The test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). Davis v. United States, 357 F.2d 438 (5th Cir. 1966); United States ex rel. D’Ambrosio v. Fay, 349 F.2d 957 (2d Cir. 1965).

We have read the prosecutor’s argument and conclude he did not comment on the appellant’s failure to testify. The portions of the argument objected to by appellant were legitimate comment on the evidence introduced at trial.

Judgment…