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United States v. Salazar

August 7, 1961

UNITED STATES OF AMERICA, APPELLEE,
v.
MAX T. SALAZAR, APPELLANT.



Before Lumbard, Chief Judge, Goodrich*fn* and Friendly, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge.

Max T. Salazar appeals his conviction on ten counts of an indictment charging conspiracies to violate 18 U.S.C. ยง 1001,*fn1 by taking civil service examinations for ten of his fellow post office employees and signing certain identification cards and declarations of honesty in their name.*fn2 There was abundant proof of Salazar's guilt, but we must reverse the conviction because certain remarks and questions of the district judge were, in combined effect, so clearly prejudicial that we cannot say that the defendant received the fair trial to which he was entitled.

Six post office employees testified that Salazar, for a fee averaging about $100, had taken their civil service examinations and an F.B.I. handwriting expert stated that samples of Salazar's handwriting matched the writing on the examination papers of these six and the other four men whom Salazar had allegedly helped.

Salazar took the stand in his own defense and denied that he had ever taken any examination except on his own behalf. He testified that he and one of the government witnesses had once had a fist fight. At this point, defense counsel asked him if he remembered the testimony of Postal Inspector Joseph Burke who had interrogated Salazar about the charges against him.*fn3 To a question asking whether he had heard Burke testify that he gave him a formal letter of charges preferred against him by the Post Office Department, Salazar replied that "Maybe he did." The following colloquy then took place:

"The Court: Let me ask you, Salazar - don't misinterpret my remarks, either you or the jury - but you seem to be bearing a bit of a chip on your shoulder.

"Salazar: I am not carrying - I'm sorry to interrupt you.

"The Court: I mean, you feel you want me and the jury to believe that all these people in the Post Office Department and the United States Attorney's Office, and the postal inspectors are in a gigantic conspiracy to frame you?

"Salazar: Well, let me say this: It appears that way to me, it appears that way to me. I am trying to say a few things. All I can say is yes or no. I want - "

The judge interrupted with further comments and Salazar continued:

"There is a lot of things yet that haven't been brought to light. Now, with no reflection on my attorney, whom I have the highest respect for, plus everybody here, I want to know now, sir, is it procedure to put the defendant on the stand before he calls his witnesses?"

The judge then commented:

"Well, now, I think that that question is indicative, clearly indicative of what I said, chip-carrying, only it goes a little bit further. It is almost, Mr. ...


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