United States v. Demetrio Alvarez Calderon

On December 14, 1978, a Federal grand jury sitting in Las Vegas, Nevada returned a three-count indictment against appellant Demetrio Alvarez Calderon and another man, Daniel Marlmon, charging them with fraud by wire in violation of 18 U.S.C. § 1343 , and with aiding and abetting in violation of 18 U.S.C. § 2 .

Preliminary motions were denied and the matter went to trial on May 15, 1979. The prosecutorial error which led to appellant’s motion for mistrial, occurred in the course of the prosecutor’s opening statement. During its course, the government’s attorney told the jury explicitly what the testimony would be that he would rely on during his case, the names of the witnesses, and the testimony they would relate. The defense made no objection to these opening remarks. The United States Attorney con-eluded his remarks and the defense attorney reserved his right to make an opening statement until the close of the government’s case. The case proceeded with the taking of testimony and the court ruled that portions of the testimony which the prosecutor referred to in his opening statement were inadmissible hearsay.

The defendant moved for a mistrial on the ground that the…