Opinion · Court of Appeals for the Fifth Circuit

United States v. Nicholson

492 F.2d 124

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1974-04-04
Topic
litigation

PER CURIAM: Defendant Eubergene Nicholson was indicted on two counts of misapplication of funds and receipt of funds with intent to injure and defraud the Sanders-ville 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. 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.

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6 opinions
UNITED STATES v. NICHOLSON,492 F.2d 124(5th Cir. 1974)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. EUBERGENE NICHOLSON,
DEFENDANT-APPELLANT.
No. 73-2680.
Summary Calendar.fn*
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.
Appeal from the United States District Court for the Middle District of Georgia.
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 of18 U.S.C. § 657and18 U.S.C. § 1006. Pursuant to Rule23(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.SeeUnited States v. Dillon, 5 Cir. 1971,436 F.2d 1093,1095. We are satisfied that the admission of evidence of thePage 125prior crime did not affect substantial rights of defendant and therefore does not constitute grounds for reversal. Fed.R.Crim.P.52(a).

[3] Affirmed.
  1. Rule 18, 5 Cir.;seeIsbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970,431 F.2d 409, Part I. ↩