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572 F.2d 1390

Docket No. 77-5326.

United States v. Fields

Sixth Circuit Court of Appeals

Decided April 14, 1978.

Sixth Circuit Court of Appeals · decided 1978-04-14

Cited by 1 later decisions — most recently April 1978

1 federal appellate ·

2 counsel of record

Relies on De Luna v. United States · United States v. McKinney

Good law ✅— No negative treatment on recordhow we know

Decided 1978-04-14

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¶1W. Henry Haile, Haile & Martin, Nashville, Tenn., for defendant-appellant.

¶2*1391Hal D. Hardin, U. S. Atty., Lawrence Ray Whitley, William Gary Blackburn, Asst. U. S. Attys., Nashville, Tenn.,- for plaintiff-ap-pellee.

¶3Before WEICK and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.

¶4ORDER

¶5The sole issue in this appeal from the defendant’s conviction of receiving and concealing stolen property is whether a comment in the closing argument by counsel for a codefendant relating to defendant’s failure to testify in his own behalf was error which was not cured by the corrective instructions of the court which followed. Appellant relies upon this court’s decision in United States v. McKinney, 379 F.2d 259 (6th Cir. 1967), which in turn cited with approval the concurring opinion of Judge Bell in De Luna v. United States, 308 F.2d 140 (5th Cir. 1962).

¶6Upon review the court finds the facts in this case fully distinguishable from those in the cases cited and that any error by co-counsel’s improper reference to defendant’s failure to testify was fully cured by the instructions which the court gave in the case. The comment was isolated and not the result of any conduct on the part of the prosecution, and it was followed by a prompt and comprehensive instruction. Accordingly,

¶7IT IS ORDERED that the judgment of the district court is affirmed.

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