865 F.2d 1330
275 U.S.App.D.C. 231
Robert E. WRIGHT, Appellant.
United States Court of Appeals, District of Columbia Circuit.
Jan. 25, 1989.
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.
Before RUTH B. GINSBURG, STARR and SENTELLE, Circuit Judges.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of counsel. We are satisfied, upon full review of the case, that there was ample evidence upon which a reasonable jury could find the defendant guilty on each count, and that our disposition does not warrant a published opinion. See D.C.Cir.R. 14(c).
In his opening statement, the prosecutor incautiously commented on the gravity of transactions when children are involved. Such comment, as the trial judge observed, should have been reserved for closing argument. However, the evidence did bear out the use of a child in making a sale and the proximity of sales to an elementary school at times when children were present. More incautiously, the prosecutor once referred in his opening to police information, triggering the investigation, that "this defendant" was selling drugs in the school's vicinity. The trial judge properly and promptly admonished the prosecutor against referring to any involvement by the defendant in transactions antedating those charged in the indictment. Critical to his denial of the mistrial motion, the trial judge immediately cautioned the jury, with notable clarity, that opening statements are not evidence. Taking into account the limiting instructions, the absence of any further reference to defendant's prior unelucidated drug activity, and the strength of the evidence, we cannot gainsay the trial court's ruling. Cf. Frazier v. Cupp, 394 U.S. 731, 733 (1969). It is accordingly
ORDERED and ADJUDGED that the judgment* from which this appeal has been taken be affirmed.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.R. 15(b)(2).
Counsel for the United States concedes there is a discrepancy between the indictment and verdict on the one hand, and the judgment on the other. Both sides recognize that the indictment and verdict are correctly framed and that the judgment contains clerical errors arising from oversight. We anticipate prompt correction of the judgment by the district court pursuant to Federal Rule of Criminal Procedure 36