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492 F2d 124 United States v. Nicholson 73-2680

492 F.2d 124

UNITED STATES of America, Plaintiff-Appellee,
v.
Eubergene NICHOLSON, Defendant-Appellant.
No. 73-2680 Summary Calendar.*
*Rule 18, 5 Cir.; see Isbell Enterprises, Inc.
v.
Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d
409, Part I.

United States Court of Appeals, Fifth Circuit.

April 4, 1974.

Tommy C. Mann, Macon, Ga., for defendant-appellant.

William J. Schloth, U.S. Atty., Charles T. Erion, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

1

Defendant Eubergene Nicholson was indicted on two counts of misapplication of funds and receipt of funds with intent to injure and defraud the Sandersville Production Credit Association, in violation of 18 U.S.C. 657 and 18 U.S.C. 1006. Pursuant to Rule 23(a), Fed.R.Crim.P., defendant waived his right to trial by jury. The district court sitting without a jury convicted defendant on both counts and sentenced him to four months on Count 1 and to two years probation on Count 2. On this appeal defendant makes only one allegation of error: that the district court improperly admitted evidence of a separate and independent crime, similar in nature, upon which no conviction was proved.

2

We need not decide whether the district court's failure to exclude the evidence in question was improper, because the record clearly demonstrates that the error, if any, was not prejudicial. We note briefly the combination of factors that compels this conclusion. First, there was overwhelming evidence, entirely independent of the testimony concerning the prior crime, to support the conviction. Second, defendant presented no witnesses and offered no evidence at trial. Third, the very moderate sentences on both counts give no indication that evidence of the prior offense was used for enhancement purposes. Finally, we note that this was a bench trial; the prejudicial impact of erroneously admitted evidence is thus presumed to be substantially less than it might have been in a trial before a jury. See United States v. Dillon, 5 Cir. 1971, 436 F.2d 1093, 1095. We are satisfied that the admission of evidence of the prior crime did not affect substantial rights of defendant and therefore does not constitute grounds for reversal. Fed.R.Crim.P. 52(a).

3

Affirmed.