United States v. Howard Mason Birrell

Appellant stands convicted of the crime of interstate transportation of a stolen motor vehicle. 18 U.S.C. § 2312 . His defense in part was insanity. Arguing to the jury, counsel for appellant stressed evidence supporting appellant’s contention that he was unable to conform his conduct to the requirements of law.

Government counsel, in his closing argument to the jury, responded to appellant’s argument with frequent references to appellant’s extensive record of car thefts and his homosexual proclivities, and urged the jury, because of these facts, not to “turn him loose on society.” Appellant’s motion for mistrial was denied.

This requires reversal under Evalt v. United States, 359 F.2d 534, 544 (9th Cir. 1966). As in Evalt , the argument was fundamentally unfair in inviting the jury to convict even though it might believe that appellant was insane. Even more unfairly, it invited conviction irrespective of innocence of the crime charged, upon the ground that appellant was a homosexual.

One further assignment of error deserves comment in the light of our remand. Appellant appears to have made out a prima facie case of the existence of a Jencks Act statement. While the…