UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EUBERGENE NICHOLSON, DEFENDANT-APPELLANT

5th Cir. | 1974-04-04
No. 73-2680
492 F.2d 124 Court of Appeals for the Fifth Circuit (1974) Positive Treatment
Cited by 5 cases
Opinion of the Court
PER CURIAM:

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.

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. See United States v. Dillon, 5 Cir. 1971, 436 F. 2d 1093, 1095. We are satisfied that the admission of evidence of the prior crime did not affect substantial rights of defendant and therefore does not constitute grounds for reversal, Fed.R.Crim.P. 52(a).

Affirmed.

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