of defendant's witness, R. Walkenstein, and also from certain statements concerning the evidence in the government's closing address which were allegedly misleading and warrant the granting of a new trial.
No objections were made to the cross examination or the address to the jury. In that circumstance, the defendant is in effect asking that plain or fundamental error be recognized. That is, under Rule 51 of the Federal Rules of Criminal Procedure, 18 U.S.C., it is of course necessary that objection to the introduction of evidence be made at the proper time. United States v. DeMarie, 7 Cir., 1955, 226 F.2d 783, 788. By the same authority, allegedly improper remarks of the prosecution need not be reviewed where no objection was made at the time. Az Din v. United States, 9 Cir., 1956, 232 F.2d 283, 287.
Plain error may of course be noticed under Rule 52, Federal Rules of Criminal Procedure, where substantial rights have been affected. In determining whether prejudice has occurred when thus tardily asserted, however, the alleged error is not to be considered in isolation from other circumstances of the trial. Crawford v. United States, 1952, 91 U.S.App.D.C. 234, 198 F.2d 976, 978.
Tested by those standards, the cross examination of Mr. Walkenstein reveals several questions by the prosecuting attorney which imply that a few months before the witness talked to defendant, there had been a 'change in (Bureau) policy as to voluntary disclosures.' It is true that no evidence as to the nature of that change of policy was introduced, and defendant claims the cross examination to have been grossly prejudicial for that reason, citing Lee Won Sing v. United States, 1954, 94 U.S.App.D.C. 310, 215 F.2d 680, 681. In that case one jointly indicted with defendant had pleaded guilty, and then testified for the defense. In cross examination, the prosecutor asked him 'if it were not a fact that appellant (defendant) was giving him $ 20,000 to plead guilty,' which the witness promptly denied. Since no evidence of any such offer was forthcoming, and the court refused to charge that the Government was bound by the negative answer of that witness under the state of the evidence, the conviction was set aside.
The Lee Won Sing case simply illustrates the gravity of prejudice necessary to require a new trial on the grounds of plain error. By contrast, the alleged irregularity of the questions in cross examination here, to which no timely objection was made, is not significant.
The other claim of prejudice concerns arguments of the prosecuting attorney when trying to show contradictions arising out of the defendant's own actions. He mentioned briefly that defendant had not reported his 1943 income until 1946, and had paid the tax due in installments in 1948 and 1950. Defendant points out that he was permitted to report late as to 1943 by virtue of a statute applicable to servicemen.
The prior testimony had made clear the circumstances as to the filing of the 1943 return. The Government's theory was perhaps that the filing in 1946 of the 1943 return, without final payment until 1950, although excused by statute, tended to suggest that defendant might have known filing without simultaneous payment to be conceivable.
The propriety of such possible argument need not be determined. Suffice it to say that a ruling thereon could have been secured at trial had counsel made timely objection. On the present record, however, no palpable error appears.
The converse of the rule stated earlier is that the alleged plain error should be considered only in connection with the other circumstances of the trial. Crawford v. United States, 1952, 91 U.S.App.D.C. 234, 198 F.2d 976, 978. By that test, there is no showing that defendant was prevented from demonstrating his defense to the jury. There is now no warrant for disturbing its verdict.
For the foregoing reasons, defendant's motions for judgment of acquittal and for new trial are
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