646 F2d 1249 United States v. Allen

646 F.2d 1249

UNITED STATES of America, Appellee,
v.
Pamela Joy ALLEN, Appellant.

No. 80-1989.

United States Court of Appeals,
Eighth Circuit.

Submitted March 13, 1981.
Decided April 15, 1981.

Meshbesher, Singer & Spence, Ltd., Carol Grant (argued), Minneapolis, Minn., for appellant.

Thomas K. Berg, U. S. Atty., James A. Morrow, Asst. U. S. Atty. (argued), Dist. of Minnesota, Minneapolis, Minn., Peter Bachman, Legal Intern, for appellee.

Before BRIGHT and ROSS, Circuit Judges, and HARRIS, Senior District Judge.*

PER CURIAM.

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1

Pamela Joy Allen appeals the denial of her motion for a new trial, having been found guilty on ten counts of making false entries, in violation of 18 U.S.C. § 1005, and on two counts of embezzlement, in violation of 18 U.S.C. § 656. Defendant claimed the prosecutor was guilty of prejudicial misconduct during his cross-examination of defendant, during his closing argument and during his rebuttal.

2

The district court, the Honorable Harry MacLaughlin, in ruling on the motion for new trial, concluded that the prosecutor's comments during rebuttal, constituted fair reply to the closing argument of defense counsel; that to the extent the prosecutor's argument attempted to undermine the presumption of innocence, the jury instructions contained warnings that the defendant was not required to produce evidence or call witnesses; that any prejudice was de minimus, given the overwhelming evidence against the defendant; that even if the jury could have drawn some inference as to defendant's silence from the prosecutor's questions, the court instructed the jury to disregard any questions or evidence to which objections had been made and sustained; and that the cross-examination of defendant concerning an uncharged embezzlement was properly admitted under Federal Rule of Evidence 404(b), followed by a cautionary instruction on how to evaluate that evidence.

3

We have carefully studied the record, including the trial court's memorandum and order, the briefs and the arguments of the parties to the action. We find no merit to appellant's arguments and accordingly affirm pursuant to Rule 14 of the Rules of this court on the basis of Judge MacLaughlin's opinion.

*

The Honorable Oren Harris, Senior United States District Judge for the District of Arkansas, sitting by designation