Opinion
No. 24978.
July 8, 1970. Certiorari Denied November 23, 1970. See 91 S.Ct. 192.
Michael S.N. Johnson (argued), San Francisco, Cal., Wm. Ferrell Porter, in pro. per., for appellant.
Richard V. Boulger (argued), Ass't. U.S. Atty., Dwayne Keyes, U.S. Atty., Fresno, Cal., for appellee.
Before CHAMBERS and MERRILL, Circuit Judges, and WOLLENBERG, District Judge.
The judgment of conviction is affirmed.
On the point of full disclosure of the prosecutor's file, defendant is concluded by Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. See also Edmondson v. United States, 10 Cir., 402 F.2d 809. The jury instructions to which defendant objects have been approved in our Jones v. United States, 9 Cir., 378 F.2d 340.
We find the early questioning without Miranda warnings were all pre-custody, arrest or restraint.
In closing argument, the prosecutor commented on defendant not telling the F.B.I. the story he told on the witness stand. But he did talk at the interview, and what he said was inconsistent with his later story. We think here the comment was inept, but we do not find it plain error. The argument was to some extent factually incorrect. The jury probably knew it to be so.
Counsel for defendant has presented an able brief, but we simply cannot agree with it.