United States v. Young

PETITIONER: United States
LOCATION: Elstad's Residence

DOCKET NO.: 83-469
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 470 US 1 (1985)
ARGUED: Oct 02, 1984
DECIDED: Feb 20, 1985

Burck Bailey - on behalf of Respondent
Michael Mc Connell - on behalf of respondent
Michael W. Mc Connell - on behalf of Petitioner
Michael McConnell - for petitioner, pro hac vice, by special leave of Court

Facts of the case


Media for United States v. Young

Audio Transcription for Oral Argument - October 02, 1984 in United States v. Young

Michael Mc Connell:

Mr. Chief Justice, and may it please the Court, Respondent's conviction for mail fraud and false statements was reversed by the Court of Appeals because the prosecutor in his rebuttal argument to the jury expressed his personal opinion that Respondent had committed fraud.

Ordinarily, such a holding would be unremarkable, one that this Court would not be called upon to review.

However, there are three aspects of the case that do make the holding remarkable; indeed, that make the holding directly contrary to precedents by this Court.

First, the error, if it was error, was not noticed by trial court or counsel when it occurred.

It was not preserved for appeal by an objection, and the trial court was not asked to take any curative action.

Indeed, the first time that Respondent mentioned this alleged error was in his papers before the Court of Appeals.

Second, the issue of the prosecutor's personal opinion on Respondent's guilt was not interjected into the trial by the prosecutor but, rather, by defense counsel who opened the issue during the course of his argument that the prosecution had been unfair and his argument that the prosecutor did not, in fact, believe his own case against the Respondent.

And, third, the Court of Appeals reversed the conviction without any inquiry into whether the Respondent's rights to a fair trial were substantially prejudiced by the prosecutor's comments.

Warren E. Burger:

Is this the case where there was no oral argument in the Court of Appeals?

Michael Mc Connell:

Your Honor, I'm not aware of whether there was oral argument.

Warren E. Burger:

In one of our cases today, there was no oral argument.

It's a decision on the briefs.

But no matter, we'll check that.

Mr. McConnell, may I just ask at the outset, is there a Tenth Circuit rule that if either prosecutor or defense counsel thinks that his adversary has gone out of bounds, that the rule requires that he object to give the trial judge an opportunity to correct?

Michael Mc Connell:

No, Your Honor.

That appears not to be the rule.

The rule does appear to be that if the defense counsel goes out of bounds, the prosecutor must object but may not pursue that line of inquiry; but that if the prosecutor goes out of bounds and there's no objection by the defense counsel, apparently the practice in the Tenth Circuit, as in this case, is that that has no bearing or very little bearing upon whether the Court of Appeals will take that issue upon on appeal.

Which we would suggest, incidentally, is exactly the opposite of the correct rule, because the contemporaneous objection requirement is itself a rule of appellate procedure.

It isn't a rule which is designed to govern trial practice when one side opens a line of argument, whether the other side can pursue that line of argument during the course of the trial.

That isn't what the contemporaneous objection requirement is all about.

William J. Brennan, Jr.:

What I'm getting back to, a long, long time, but I recall in my own experience as a trial judge that somebody in summation, whether prosecutor or defense counsel, stepped outside proper limits, his adversary had better get up and object to give me a chance to say to the jury, ignore it, or forget it, or something like that.

Isn't that the sensible rule?

Michael Mc Connell:

Your Honor, I do think that that's a sensible rule, and I believe that it may often be the appropriate course for the prosecutor to take, to object rather than to pursue a fair response.

But let me point out just a few factors that make that--

Sandra Day O'Connor:

Well, in fact, isn't that the best rule for both sides at the trial court level?

Let's forget about the appellate procedure.

The trial court has invested a lot of time in the trial of a case.

Witnesses have been on the stand, everyone has been put out in terms of spending time and effort on a case, and you reach closing argument.

Why shouldn't you give the trial judge the first opportunity to tell the jury to disregard some improper argument, whether it's being made by defense counsel or the prosecutor?

Michael Mc Connell:

--Your Honor, I agree that for the prosecutor to have lodged an objection was an appropriate course.