United States of America, Plaintiff-appellee, v. John Webb, Defendant-appellant, 463 F.2d 1324 (5th Cir. 1972)

'The contention that in Commerce Clause cases the courts have power to excise, as trivial, individual instances falling within a rationally defined class of activities has been put entirely to rest.'

"In Perez v. United States, supra, the Supreme Court found that extortionate credit transactions ('loan sharking') fell into a rationally defined class of activities which Congress could regulate under the Commerce Clause. The Court stated, 'Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce.' 402 U.S. at 154, 91 S. Ct. at 1361 (emphasis supplied). Thus, such transactions were found to be subject to federal regulation. The same is true of illegal gambling. As defined in 18 U.S.C. § 1955 illegal gambling constitutes a rationally defined class of activities within congressional power to regulate under the Commerce Clause. See United States v. Darby, 312 U.S. at 120-121, 61 S. Ct. at 460, where the Court held the class of activities in that case to be properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect upon commerce. In Perez, the petitioner was found by the Court to be 'clearly a member of the class which engages in "extortionate credit transactions" as defined by Congress and the description of that class has the required definiteness.' 402 U.S. at 153, 91 S. Ct. at 1361 (emphasis by the Court.)"

460 F.2d 1041 at 1047. Indeed, United States v. Bass, supra, distinguished Perez on this basis.

"In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the 'mere possession' of firearms; thus, we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U.S. 146 [, 91 S. Ct. 1357, 28 L. Ed. 2d 686] (1971). The question whether the definition of 'felony' in Sec. 1202 (c) (2) creates a classification violating the Fifth Amendment was not raised in the Government's Petition for Certiorari, and is also not considered here." 404 U.S. 336 at 339, note 4, 92 S. Ct. 515 at 518.

We turn to appellant's challenge to the sufficiency of the evidence. The prosecution's strongest case was made by the testimony of James McCloud and his fifteen year old son. McCloud testified that he had a desperate need for money and turned to appellant for a loan of $35. On cross-examination he was asked:

"Q All right. Now, when you made that loan from John Webb, were you scared of him at that time?

A I was kind of--I was kind of scared; yes, sir; I just needed it and didn't have no other way to get it.

Q Now, you went there voluntarily, and you needed the money, and he let you have it, didn't he?

A Yes, sir.

Q Now, I will ask you if any threats were made to you at that time, and John Webb told you, now, when you made the loan, that he--did he tell you anything; he say, 'James if you don't pay me back, now, I am going to beat you up or shoot you or kill you or send you to hell'?

A At that time, onliest thing he told me, say, 'I am going to let you have the money. Now, you know I don't play about my money."'

On the Friday after the loan was made Webb told him he now owed $70. McCloud paid him $35. The next Friday Webb returned to McCloud's place of business and demanded that he again be paid $70. McCloud paid him $58. The next week Webb demanded $100. McCloud refused to pay anything further and was subsequently assaulted by the appellant.

On one occasion McCloud and his son heard Webb drive up to their home. McCloud ran out the back door as Webb, pistol in hand, entered through the front door. The prosecution has made out all the necessary elements of offenses under both Secs. 892 and 894. Compare United States v. Antonelli, 439 F.2d 1068 (1st Cir., 1971); United States v. DeLutro, 435 F.2d 255 (2nd Cir., 1970); United States v. Joines, 327 F. Supp. 253 (D.C. Del., 1971); United States v. Curcio, 310 F. Supp. 351 (D.C., Conn.1970). Since the general sentence of eight years imposed on appellant was less than the statutory maximum of twenty years on each count, we need not under the concurrent sentence doctrine consider the sufficiency of the evidence on the remaining counts.

We turn, therefore, to a consideration of appellant's attack on the fairness of the trial itself. Webb's contentions in this respect are twofold; first, that the court erroneously permitted the admission of evidence of his reputation for violent collection practices in circumstances other than those specified by Secs. 892(c) and 894(c), and, secondly, that the United States attorney prejudiced the trial by his references to appellant. The record reveals that appellant's contentions in the first regard are unfounded.

Section 892(c) requires two prerequisites before evidence of reputation of collection practices is admissible to show the understanding of the debtor and the creditor at the time of the extension of credit.²  Similar requirements are present under Sec. 894(c). The record reveals the prerequisites were established leaving the question of admissibility of such evidence to the trial judge's discretion. Presumably the court is to strike a balance between the prejudice to the appellant and the prosecution's need for the evidence to make its case. In the first instance this weighing process is for the district judge, subject to appellate reversal for manifest abuse of his discretion. This, however, is not our case.

Appellant urges his second contention as a matter of plain error, subject to review without the necessity of a prior objection under Federal Rules of Criminal Procedure, 52(b).

As has been held in innumerable cases, it is the defense's burden to object to improper prosecutorial argument. Objection permits both the trial judge and the prosecutor himself to defuse, if possible, any prejudice inuring to the defendant. In the absence of an objection this court, pursuant to the mandate of F.R.Cr.P. 52(b), will consider assumed improprieties in the prosecutor's jury arguments which constitute "plain error." United States v. Lamerson, 457 F.2d 371 (5th Cir., 1972); United States v. Brown and Hayes, 451 F.2d 1231 (5th Cir. 1972); United States v. Fuentes, 432 F.2d 405 (5th Cir., 1970); Hall v. United States, 419 F.2d 582 (5th Cir., 1969); Rotolo v. United States, 404 F.2d 316 (5th Cir., 1968); Sikes v. United States, 279 F.2d 561 (5th Cir., 1960). Compare United States v. Briggs, 457 F.2d 908 (2nd Cir., 1972); United States v. Strauss, 443 F.2d 986 (1st Cir., 1971). The characterization of Webb as a "hoodlum," "criminal," or "Black Jesus" asserted as plain error, however, does not rise to that level. Unlike Hall v. United States, supra, or Steele v. United States, 222 F.2d 628 (5th Cir., 1955), this shorthand characterization of appellant was based on the evidence adduced at trial, which included testimony of appellant's reference to himself in some of those terms. Since we do not find plain error in the prosecuting attorney's jury argument, any supposed impropriety was waived by the failure to offer timely objections.

The judgment of the district court is affirmed.