United States v. Neal T. Roberts and James Albert Robison

Appellants Roberts and Robison argue that the prosecutor (1) improperly bolstered the credibility of its chief witness with his plea agreement to testify truthfully and (2) implied in closing argument that a state policeman corroborated that witness’s testimony.

We reverse for improper closing argument.

FACTS

Early one morning in January 1976, an unexploded bomb was discovered in a building used by the federal government.

Roberts and Robison were charged with the attempted bombing. The government contended that Roberts had recruited Robison and John Adamson to blow up the building.

The first trial resulted in a hung jury, but on retrial the jury returned guilty verdicts as to both Roberts and Robison.

Adamson was the government’s chief witness. In exchange for his testimony in this case and three others, hé received immunity from prosecution for 10 felonies and was allowed to plead guilty to a reduced charge of second degree murder. His plea agreement provided that he would lose these benefits “should he at any time testify untruthfully.”

The entire plea agreement was admitted in evidence and, in closing argument, the prosecutor made devastating use of it. He told the jury…

specially concurring:

I concur in Judge Wright’s opinion reversing the convictions. I write a special concurrence merely to comment on the question concerning the transfer of these cases between the two districts.

In reviewing these cases, we noted the possibility of irregularities in the transfer of these cases between the districts and in the taking of the appeal. We thus requested counsel to supplement their briefs to consider this matter, as it had not been raised by either party.

After considering the record and the briefs of counsel, I believe that the defects and irregularities in the proceedings below did not affect any substantial rights of the defendants, and reversal of their convictions is not required on that ground. F.R. Crim.Pr.Rule 52(a). Defendants do not contend, and on this record could not seriously contend, that any substantial right of theirs had been affected in any degree by the procedural irregularities.

Under the 6th amendment, a criminal defendant has the right to be tried in the *538 jurisdiction where the crime was committed. That right is a venue provision and, though it is a constitutional right, it may be waived. U. S. v. Jercha, 458 F.2d 1340…

(dissenting):

With regret and with great respect for the views of the majority, I must dissent from the decision expressed in Judge Wright’s opinion. My disagreement is due to a belief that the District Court which entered the judgments of conviction had no jurisdiction to do so and that “we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit”. United States v. Corrick, 298 U.S. 435, 440 , 56 S.Ct. 829, 832 , 80 L.Ed. 1263 (1936) (emphasis supplied). To the same effect is a criminal case in this Court, Russell v. United States, 306 F.2d 402, 405 (9th Cir. 1962) I would reverse for want of jurisdiction of the District Court. Therefore, I do not reach the merits and am unable to join in the majority opinion reversing on the merits.

1.

The appeals to this Court are from judgments of conviction entered on July 24, 1978, in the United States District Court for the District of Arizona, after sentences imposed at Phoenix by that Court. Jurisdiction over the indictment, however, had on May 2, 1977, been transferred to the United States District Court for the Southern District of California under…

618 F.2d 530 6 Fed. R. Evid. Serv. 671 UNITED STATES of America, Plaintiff-Appellee, v. Neal T. ROBERTS and James Albert Robison, Defendants-Appellants. Nos. 78-2738, 78-2806. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 15, 1979. * Decided May 7, 1980. John P. Otto, James H. Kemper, Derickson, Kemper & Henze, Phoenix, Ariz., argued, for defendants-appellants; Marvin Johnson, Phoenix, Ariz., on brief. W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before WRIGHT and ANDERSON, Circuit Judges, and WYATT, Senior District Judge. ** WRIGHT, Circuit Judge. 1 Appellants Roberts and Robison argue that the prosecutor (1) improperly bolstered the credibility of its chief witness with his plea agreement to testify truthfully and (2) implied in closing argument that a state policeman corroborated that witness's testimony. 2 We reverse for improper closing argument. FACTS 3 Early one morning in January 1976, an unexploded bomb was discovered in a building used by the federal government. 4 Roberts and Robison were charged with the attempted bombing. The…