United States v. Herbert Harvey Roth, Jr., United States of America v. Christopher Kephart

466 F.2d 1111 UNITED STATES of America, Plaintiff-Appellee, v. Herbert Harvey ROTH, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Christopher KEPHART, Defendant-Appellant. Nos. 71-1436, 71-1437. United States Court of Appeals, Ninth Circuit. Aug. 16, 1972. Certiorari Denied Dec. 4, 1972. See 93 S.Ct. 540 , 546. 1 Robert J.McCrea (argued), of Mulder, Morrow & McCrea, Eugene, Or., William A.Brockett, Jr. (argued), Michael H.Walsh, San Diego, Cal., for appellant. 2 Shelby Gott, Asst. U.S. Atty. (argued), Robert H.Filsinger, Joseph A.Milchen, Asst. U.S.Attys., Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee. 3 Before BARNES and MERRILL, Circuit Judges, and BYRNE, Jr., District Judge. * WM. MATTHEW BYRNE, Jr., District Judge: 4 Defendants Roth and Kephart appeal from a conviction in a jury trial for conspiracy, transportation and smuggling of marihuana under Title 21 U.S.C. Sec. 176a, and concealment and transportation of illegally smuggled dangerous drugs in violation of Title 18 U.S.C. Sec. 545 . Roth also appeals his conviction for concealing and transporting heroin in violation of Title 21 U.S.C. Sec. 174 . 5 Appellants contend that…

Defendants Roth and Kephart appeal from a conviction in a jury trial for conspiracy, transportation and smuggling of marihuana under Title 21 U.S.C. § 176a, and concealment and transportation of illegally smuggled dangerous drugs in violation of Title 18 U.S.C. § 545 . Roth also appeals his conviction for concealing and transporting heroin in violation of Title 21 U.S.C. § 174 .

Appellants contend that prejudicial error resulted from the Government attorney’s improper and incorrect statement of the law in closing argument and the court’s refusal to give a corrective instruction as requested.

The Government presented evidence to establish that the defendants and two other co-conspirators were engaged in smuggling marihuana, dangerous drugs and narcotics into the United States from Mexico and subsequently transporting them from Southern California to Oregon. In their testimony, Roth and Kephart each admitted possession and sale of the marihuana and dangerous drugs in Oregon during the time alleged in the indictment. They both acknowledged awareness that they had violated the criminal laws of Oregon. However, each defendant testified that he did not know that the marihuana or drugs…

(dissenting) :

I disagree with the majority on the matter of the Government’s closing argument. To me it was not invited, was clearly improper, misleading and wholly prejudicial. There was no opportunity to respond to it. In my judgment it demanded a clarifying instruction. I would reverse and remand for new trial.