United States v. Maria Delia Estrada De Castillo

The defendant was convicted of selling and disposing of a counterfeit alien registration receipt card in violation of 18 U.S.C. § 1426 (b), was sentenced to two years’ imprisonment, and was fined $1500.00. The fine imposed was a committed fine.

On this appeal the defendant urges that the evidence was insufficient to support the conviction. We find it sufficient.

Defendant urges that her fifth amendment rights were violated when the United States Attorney argued to the jury that certain evidence was uncontradicted. The prosecutor may not comment on the defendant’s failure to take the witness stand (Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)), but, except under unusual circumstances, a prosecutor may argue that certain evidence is uncontradicted. United States v. Noah, 475 F.2d 688 (9th Cir. 1973). 1 Here as in Noah the disputed comments were directed to the lack of contradictory evidence and contained no explicit reference to the failure of the defendant to testify. The court did instruct the jury that it might not draw any inference of guilt from defendant’s failure to' testify. Under these circumstances we find no error.

Defendant contends that…

concurring specially (Joined by Judge Ely):

Although I concur with Judge Smith’s Opinion, I concur in that part of the Opinion dealing with committed fines solely under the compulsion of United States v. Dixon (9th Cir. 1976) 538 F.2d 812 .

I believe that Dixon is wrong in denying standing to attack the constitutionality of a committed fine imposed on an indigent defendant until he or she has begun or is about to begin service of imprisonment for nonpayment of a committed fine. On the merits, I would hold that the imposition of a committed fine on Mrs. Castillo, an indigent, 1 is constitutionally impermissible as a denial of equal protection.

No federal statute expressly authorizes committed fines. The only relevant statutes merely assume the power to impose such a fine. ( 18 U.S.C. §§ 3565 , 3569.) The practice of committing to enforce fines, however, has an ancient lineage in English law going back to the Norman kings. (Note, “Fines, Imprisonment and the Poor,” 57 Calif.L.Rev. 778, 784-86 (1967).) In this country it existed at common law (cf. Ex parte Garrison (S.D.Cal.1924) 297 F. 509 ) and has been confirmed by statute in virtually all the states. (See Williams v. Illinois…

549 F.2d 583 UNITED STATES of America, Plaintiff-Appellee, v. Maria Delia ESTRADA de CASTILLO, Defendant-Appellant. No. 75-2914. United States Court of Appeals, Ninth Circuit. Oct. 20, 1976. Rehearing and Rehearing En Banc Denied March 15, 1977. 1 Jo Ann Diamos (argued), Tucson, Ariz., for defendant-appellant. 2 James E. Mueller, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee. 3 Before ELY and HUFSTEDLER, Circuit Judges, and SMITH, * District Judge. 4 RUSSELL E. SMITH, District Judge. 5 The defendant was convicted of selling and disposing of a counterfeit alien registration receipt card in violation of 18 U.S.C. § 1426 (b), was sentenced to two years' imprisonment, and was fined $1500.00. The fine imposed was a committed fine. 6 On this appeal the defendant urges that the evidence was insufficient to support the conviction. We find it sufficient. 7 Defendant urges that her fifth amendment rights were violated when the United States Attorney argued to the jury that certain evidence was uncontradicted. The prosecutor may not comment on the defendant's failure to take the witness stand (Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705…