UNITED STATES OF AMERICA, APPELLEE,
v.
ROY HARMAN, APPELLANT
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The court held that errors in the jury charge, even if not preserved, constituted plain error affecting substantial rights, requiring a new trial.
Roy Harman was convicted by a jury on three counts of violating federal alcohol tax laws. Despite no exceptions to the jury charge or motion for a new…
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PER CURIAM.
Roy Harman was tried by a jury on a three-count indictment charging violation of U.S.C. Title 26, sections 5601(a) (4), 5601(a) (7) and 5604(a) (1), and was found guilty on all counts. The court imposed concurrent sentences of four years on each count. Although no exceptions were taken to the charge to the-jury, and no motion for a new trial was made, Harman contends that there were plain errors in the charge, affecting substantial rights, of which this court will take notice. Rule 52(b), F.R.Cr.P. Errors in the charge were in part expressly, and in part tacitly, admitted by the United States. These consisted in failing to instruct the jury as to the law applicable to the respective counts, and in instructing the jury as to an inapplicable presumption. On the whole record substantial rights of the defendant were affected (United States v. Levy, 3 Cir., 1946, 153 F. 2d 995; Morris v. United States, 9 Cir., 1946, 156 F. 2d 525; United States v. Max, 3 Cir., 1946, 156 F. 2d 13; United States v. McKenzie, 6 Cir., 1962, 301 F. 2d 880). The judgment is reversed and the case remanded to the District Court for a new trial.
Harman also moved in this court for admission to bail pending appeal. In view of the present disposition of the case, and the nature of the remand, any application for bail should be directed to the District Court.
Reversed and remanded,
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Citator
Cited By
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Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968)
-
United States v. Harman, 349 F.2d 316 (4th Cir. 1965)
Authorities Cited
- Morris v. United States, 156 F.2d 525 (9th Cir. 1946)
- United States v. Levy, 153 F.2d 995 (3d Cir. 1946)
- United States v. MAX, 156 F.2d 13 (3d Cir. 1946)
- United States v. McKENZIE, 301 F.2d 880 (6th Cir. 1962)