Opinion
No. 72-1036.
April 14, 1972.
James F. Hewitt, Federal Public Defender, Earle A. Partington, Asst. Federal Public Defender, San Francisco, Cal., for appellant.
James L. Browning, Jr., U.S. Atty., F. Steele Langford, Robert E. Carey, Jr., Asst. U.S. Attys., San Francisco, Cal., for appellee.
Appeal from the United States District Court for the Northern District of California.
Before KOELSCH, DUNIWAY, and GOODWIN, Circuit Judges.
Jones was convicted of violating 18 U.S.C. § 472 (passing and possessing counterfeit Federal Reserve Notes). He appeals, contending that the prosecutor in final argument alluded to his failure to take the stand, and that the court's curative instructions were inadequate.
The prosecutor asked an ambiguous rhetorical question about the defendant's ability to speak. He quickly corrected himself, and the court likewise immediately told the jury that the defendant is under no obligation to put on any evidence, or to take the stand. The denial of the motion for a mistrial was proper.
In all, the trial court instructed the jury four different times that the defendant had no duty to prove anything, and specifically told the jury that it could draw no inference of guilt from the defendant's failure to testify. Assuming that some incipient error may have lurked in the prosecutor's remark, had it gone unchallenged, any possible error was fully cured by the judge's instructions. United States v. Taitano, 442 F.2d 467, 469 (9th Cir.), cert. denied, 404 U.S. 852, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971).
Affirmed.