Before McLAUGHLIN and FORMAN, Circuit Judges, and LEAHY, District Judge.
We have carefully examined the record in these appeals with particular reference to the points raised by both appellants. We are satisfied that there was no substantial error in the trial with reference to either defendant.
The judgments of the district court against the defendants will be affirmed.
On petition for Rehearing of Appellant, J. Tom Grimmett
Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
Appellant Grimmett in his Petition for Rehearing asks that his point concerning certain statements in summation by counsel for appellant Parness be dealt with specifically. The Parness attorney said:
"Now, then, Mr. Parness did not have to take the witness stand. He had a right to take the Fifth Amendment, but Mr. Parness is a married man with three children and a wife from our community.
"Mr. Clancy is a very experienced attorney and a fine cross-examiner, as well as Mr. Jaffe.
"I felt there was nothing to hide, and I put Mr. Parness on the witness stand, and there is nothing to hide, and I was willing to put him on the witness stand and to open him up to the scrutiny and any type of cross-examination that any counsel could give, because I had nothing to fear by putting Mr. Parness on the witness stand, because the only evidence Mr. Parness heard was from Mr. Grimmett, what Mr. Grimmett told these other people or what the other people said to Mr. Grimmett and told them * * *
"I feel it was incumbent upon this man to take the witness stand, because he has nothing to hide, * * *"
After quoting the above the Petition for Rehearing states:
"The conclusion is inescapable that, in the context of the purpose of the summation, such statements by counsel for Parness are tantamount to stating that appellant did not take the stand because he had something to hide and, further, that, unlike Parness's attorney, appellant's attorney had something to fear by subjecting him to cross-examination. Under the holding of DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), such comments by counsel for a co-defendant were a violation of the accused's absolute right to silence under Federal Statute (18 U.S.C.A. Sec. 3481), and the Fifth Amendment."
DeLuna is radically different factually and procedurally from this appeal. Its holding in nowise is in conflict with our decision. Its ruling is based upon its particular facts and the particular procedures ...