United States of America, Plaintiff-appellee, v. General Park Fields, Defendant-appellant, 572 F.2d 1390 (6th Cir. 1978)

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US Court of Appeals for the Sixth Circuit - 572 F.2d 1390 (6th Cir. 1978) April 14, 1978

W. Henry Haile, Haile & Martin, Nashville, Tenn., for defendant-appellant.

Hal D. Hardin, U. S. Atty., Lawrence Ray Whitley, William Gary Blackburn, Asst. U. S. Attys., Nashville, Tenn., for plaintiff-appellee.

Before WEICK and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.


The sole issue in this appeal from the defendant's conviction of receiving and concealing stolen property is whether a comment in the closing argument by counsel for a codefendant relating to defendant's failure to testify in his own behalf was error which was not cured by the corrective instructions of the court which followed. Appellant relies upon this court's decision in United States v. McKinney, 379 F.2d 259 (6th Cir. 1967), which in turn cited with approval the concurring opinion of Judge Bell in De Luna v. United States, 308 F.2d 140 (5th Cir. 1962).

Upon review the court finds the facts in this case fully distinguishable from those in the cases cited and that any error by co-counsel's improper reference to defendant's failure to testify was fully cured by the instructions which the court gave in the case. The comment was isolated and not the result of any conduct on the part of the prosecution, and it was followed by a prompt and comprehensive instruction. Accordingly,

IT IS ORDERED that the judgment of the district court is affirmed.

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