BRATTON, District Judge.
This is an appeal from a conviction for aiding and abetting in the- commission of the robbery of a federally insured bank in Dumright, Oklahoma, in violation of 18 U.S.C. §§ 2(a), 2113(a).
Underlying the appeal is the claim that prejudicial error was committed in that the trial court permitted testimony about appellant’s involvement in an unrelated crime, allowed his character to be placed in issue, and propounded certain questions to two Government witnesses.
The first error complained of is testimony elicited from Floyd E. Cumby, who appeared at trial as a witness for the prosecution. He had participated in the planning of the robbery and was to drive the getaway car but was arrested before the robbery took place.
On direct examination, Cumby was questioned about his record, including a manslaughter conviction. On cross-examination, the defense attorney asked Cumby who had been killed and how they were killed. Cumby responded that the persons had been killed in an “armed robbery that Jack McBride sent me to Louisiana on.”
The defense attorney immediately asked that the answer be stricken and that the witness be instructed not to volunteer statements but only to answer his questions.
The Court ordered the answer stricken. He admonished the jury not to consider it and asked them if they would be able to do so. Their response was in the affirmative.
During the presentation of the case for the defense, the prosecuting attorney attempted to cross-examine a defense witness, Donald Lee Yates, about his conviction for participation in the Louisiana crime. In response to a question concerning who had sent him and Cumby to Louisiana, the witness said that no one had sent him and successfully invoked the Fifth Amendment as the prosecution attempted to elicit further information from him.
No objection to this line of questioning was made by the defense attorney.
Another allegedly prejudicial error is asserted to have occurred during the Government’s summation, when, without objection by the defense, the prosecuting attorney made reference to the fact that appellant constantly associated with Cumby and other known criminals for the purpose of planning crimes and to the fact that appellant and the others comprised a criminal “organization.” He also called appellant the “brains” of the operation.
Also challenged is other testimony given during the cross-examination of Cumby by defense counsel. In an effort to show that Cumby was telling a different story on the witness stand than he had earlier told, the defense attorney mentioned a prior meeting in his office with Cumby. In the lengthy series of questions and answers that followed, Cumby divulged the information that McBride, who had been present at the meeting, had held a gun on him and had threatened him for testifying before the grand jury.
The above instances, it is contended, impermissibly interjected into the trial of the case evidence of the appellant’s connection with an unrelated crime or crimes and placed his character in issue even though he did not take the stand. The testimony of Cumby is claimed to have done so directly, while the efforts of the prosecution to elicit information about the crime in Louisiana from Yates did so indirectly and in violation of the Court’s ruling excluding such evidence. The latter is claimed to have been a deliberate attempt to circumvent the Court’s ruling and to implant in the minds of the jury the fact that appellant had sent Yates to Louisiana to commit the robbery-murder of which Yates stood convicted. The prosecution’s remarks in summation allegedly served the same purpose and, further, implied that, while others had been caught and convicted of crimes committed by the “organization,” the appellant had always managed to elude prosecution.
Appellant’s position is that the above, considered separately and/or together, were plain errors under Fed.R.Crim.P. 52(b), so that the absence of objection to all but one is not controlling.
Cumby’s statement that McBride had sent him to commit the Louisiana crime was clearly inadmissible under the rule excluding evidence tending to show the commission by the defendant of a crime wholly separate from, independent of, and without any relation to the case on trial. Mills v. United States, 367 F.2d 366 (10th Cir. 1966); O’Dell v. United States, 251 F.2d 704 (10th Cir. 1958). However, the trial court immediately ordered the inadmissible portion of Cumby’s testimony stricken and promptly ascertained that the jury could disregard it. That the trial judge was satisfied that the testimony would have no effect upon the jury is entitled to great weight, for he was able to observe the impact of the testimony upon the members of the jury, and their ability to disregard it as indicated by their response to him. Atkinson v. United States, 344 F.2d 97 (8th Cir. 1965), cert. denied 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106 (1965).
Further, the objectionable answer was given in response to a question asked by defense counsel on cross-examination, as were Cumby’s remarks concerning the appellant’s threats against him.
All that need be said regarding the prosecution’s attempt to cross-examine Yates regarding who had sent him to commit the Louisiana crime is that the response thereto was a denial of having been sent by anyone. No prejudice to defendant arose from this interchange.
As for the closing argument of Government counsel, the failure to object to the now-challenged comments precludes consideration of the point unless it was plain error affecting appellant’s substantial rights. Van Nattan v. United States, 357 F.2d 161 (10th Cir. 1966); Wright v. United States, 301 F.2d 412 (10th Cir. 1962). In view of the evidence in the case, the argument cannot be said to be plain error.
Appellant’s final contention is that the trial court improperly bolstered the credibility of Cumby and F.B.I. Agent Miller and, thus, all the Government witnesses.
During cross-examination, Cumby gave conflicting answers in response to questions concerning threats or promises made to him by anyone, including the authorities.
Concerned that there existed some confusion on this point, the trial court undertook to question the witness about possible promises or threats by the authorities.
The trial judge explained that he wanted the witness to clarify his answers. The witness was asked who had threatened or promised him anything. His reply was that the appellant and his attorney had threatened him. The Court asked him if the threat related to his grand jury testimony, and Cumby replied that it did. In response to a further question, Cumby stated that no one in law enforcement had promised him anything or had threatened him.
The alleged bolstering of F.B.I. Agent Miller arose because of testimony given by the defense witness Yates, who claimed that Miller had promised him a certain sentence if he would give the F.B.I. information to convict another person. The F.B.I. Agent denied having done so when he was called as a rebuttal witness.
At the close of his testimony, Miller was asked by the Court if he had ever been allowed to recommend a sentence to a federal judge or if he had ever known of a District Attorney doing so. Miller’s reply to both questions was in the negative.
Defense counsel made no objection to the questions asked by the Court of either witness.
In essence, appellant’s argument is that the trial judge discarded his position of impartiality and became an advocate for the Government.
Eeadily disposed of is this alleged error. An examination of the record discloses that the Court’s interrogations were for the purpose of clarifying the facts in the case and were not advocacy. The questions asked were within the range of the judge’s authority and did not prejudice in any way the rights of the defendant. Maguire v. United States, 358 F.2d 442 (10th Cir. 1966); Clonce v. United States, 356 F.2d 912 (10th Cir. 1966), cert. denied 384 U.S. 992, 86 S.Ct. 1897, 16 L.Ed.2d 1007 (1966); Jordan v. United States, 295 F.2d 355 (10th Cir. 1961), cert. denied 368 U.S. 975, 82 S.Ct. 479, 7 L.Ed.2d 438 (1962).
The entire record reveals that the case against the appellant was strong and convincingly established his guilt. Nothing occurring at trial that is complained of here was of such influence that it prejudiced the defendant’s rights or denied him a fair, impartial trial.
Affirmed.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.