United States v. Henry Clay West

Specially Concurring:

I agree that we must reverse this conviction. I write separately to explain the special circumstances that require reversal notwithstanding the defendant’s failure to offer a timely objection.

Prosecutors must often proceed to trial with cases consisting entirely of testimony from informants, accomplices, or witnesses with prior criminal records. The prosecutor had nothing more here. All essential witnesses in this bank robbery trial were unsavory characters.

The primary prosecution witness, Cathy McClain, admitted robbing the bank and said that West had participated. His theory of defense was that McClain’s boyfriend, Robert Sisto, was the masked robber and that McClain was protecting Sisto by implicating West.

In his first trial, a jury was unable to reach a unanimous verdict, and the judge declared a mistrial. That mistrial may indicate that the jury believed neither West nor McClain, or could not agree on which to believe.

Upon retrial, West produced Sisto as a witness. By doing so, he offered the jury a simple but determinative credibility choice. They could believe Sisto and acquit, or they could disbelieve him and convict.

The critical nature of…

Henry Clay West appeals his conviction for bank robbery, 18 U.S.C. § 2113 (a), (d) (1976). He offers four reasons for reversing his conviction: (1) improper trial testimony by an Assistant United States Attorney; (2) improper argument by the prosecutor to bolster the credibility of a government witness; (3) erroneous jury instructions; and, (4) erroneous denial of mistrial and new trial motions. Our jurisdiction of the appeal rests on 28 U.S.C. § 1291 (1976). Because we find that the Government improperly attempted to bolster the credibility of one of its witnesses, we reverse.

FACTS

West and a co-defendant, Cathy McClain, were indicted for armed bank robbery. McClain pled guilty and agreed to testify against West. At a jury trial, she identified West as her masked accomplice. West’s defense was that a third party, Robert Sisto, accompanied McClain in the robbery and that McClain was protecting Sisto, her boyfriend, by identifying West. The jury deadlocked, resulting in a mistrial.

Upon retrial, the same evidence was produced except West called a new witness, Robert Sisto, the alleged boyfriend and actual bank robber. Sisto testified that he had been with McClain on the day…

dissenting:

I disagree with Judge Fletcher’s characterization of the statement made by counsel for defendant in her closing argument regarding the testimony of the Assistant United States Attorney. That statement did impugn the credibility of the Government’s witness, albeit indirectly, and invited the prosecutor’s remarks concerning the veracity of that witness.

Even if the prosecutor’s remarks were improper, they nevertheless do not mandate reversal. The Constitution guarantees a fair trial, not a perfect one. To the extent that error is present, it is ordinarily incumbent upon the aggrieved party to make a timely objection. As Judge Wright notes, however, counsel for defendant in this case sat silently through the prosecutor’s rebuttal summation, permitted the judge to instruct the jury, and said nothing as the jury retired. Defendant’s counsel objected to the prosecutor’s statements only after the case had been submitted to the jury, at which time there was little, if anything, the trial court could do to remove the taint. Under these circumstances, I believe that we are compelled to hold that any error was waived. I would therefore affirm defendant’s conviction.

680 F.2d 652 10 Fed. R. Evid. Serv. 1460 UNITED STATES of America, Plaintiff-Appellee, v. Henry Clay WEST, Defendant-Appellant. No. 81-1419. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 3, 1982. Decided July 1, 1982. Randy Sue Pollock, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. Andrea Sheridan Ordin, U. S. Atty., Joyce Babst, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT and FLETCHER, Circuit Judges, and MEREDITH * , District Judge. FLETCHER, Circuit Judge: 1 Henry Clay West appeals his conviction for bank robbery, 18 U.S.C. § 2113 (a), (d) (1976). He offers four reasons for reversing his conviction: (1) improper trial testimony by an Assistant United States Attorney; (2) improper argument by the prosecutor to bolster the credibility of a government witness; (3) erroneous jury instructions; and, (4) erroneous denial of mistrial and new trial motions. Our jurisdiction of the appeal rests on 28 U.S.C. § 1291 (1976). Because we find that the Government improperly attempted to bolster the credibility…