United States v. Robert William Schultz, Jr., 698 F.2d 365 (8th Cir. 1983). · Go Syfert
United States v. Robert William Schultz, Jr., 698 F.2d 365 (8th Cir. 1983). Cases Citing This Book View Copy Cite
53 citation events (8 in the last 25 years) across 18 distinct courts.
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Thurman Griffin, Sr.
8th Cir. · 2006 · confidence medium
“The prosecutor is free to comment on the failure of the defendant to call an available alibi witness.” United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983).
discussed Cited as authority (rule) Kibbe v. DuBois
D. Mass. · 2000 · confidence medium
See Grieco v. Hall, 641 F.2d 1029, 1036 (1st Cir. 1981); Pitts v. Anderson, 122 F.3d 275, 282 (5th Cir. 1997) ("Because the statements concern the same subject matter and are arguably inconsistent, the prosecutor's questions and comments regarding Pitt’s failure to include facts supporting the accidental nature of the shooting in his post-arrest statement do not violate Doyle.”); Smith v. Cadagin, 902 F.2d 553, 559 (7th Cir.1990) ("The prosecutor’s cross-examination was limited to the defendant's earlier description of the encounter ... and an attempt to demonstrate an ‘arguable incons…
cited Cited as authority (rule) United States v. Darlene M. Edwards, United States of America v. Richard W. Brown, United States of America v. Earl D. Sheppard, Also Known as Skip Sheppard, United States of America v. Bryan E. Sheppard, United States of America v. George Frank Sheppard, Also Known as Frank Sheppard
8th Cir. · 1998 · confidence medium
"The prosecutor is free to comment on the failure of the defendant to call an available alibi witness." United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983). 44 F. False Testimony Issues.
cited Cited as authority (rule) United States v. Darlene M. Edwards
8th Cir. · 1998 · confidence medium
“The prosecutor is free to comment on the failure of the defendant to call an available alibi witness.” United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983).
cited Cited as authority (rule) United States v. Mitchell
4th Cir. · 1998 · confidence medium
Cir. 1991); United States v. Makhlouta, 790 F.2d 1400, 1409 (9th Cir. 1986); United States v. Schulz, 698 F.2d 365, 367 (8th Cir. 1983); Grieco v. Hall, 641 F.2d 1029, 1034 (1st Cir. 1981).
discussed Cited as authority (rule) Robert Mitchell Pitts v. James v. Anderson, Superintendent, Mississippi State Penitentiary
5th Cir. · 1997 · confidence medium
The court reasoned that “when [defendant] chose to testify at trial, he was subject to cross-examination with respect to his prior, arguably inconsistent statement concerning the same subject matter.” Id. at 367.
discussed Cited as authority (rule) State v. Napulou (2×)
Haw. App. · 1997 · confidence medium
United States v. Dahdah, 864 F.2d 55, 59 (7th Cir.) (“[C]ommenting on a defendant’s failure to call a witness does not have the effect of shifting the burden of proof unless it taxes the exercise of the defendant’s right not to testify, a claim Dahdah does not make here.”), cert. denied, 489 U.S. 1087 , 109 S.Ct. 1550 , 103 L.Ed.2d 853 (1989); United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983) (prosecutorial comment on defendant’s failure to call an available alibi witness does not impermissibly shift the burden of proof to defendant); State v. Macon, 845 S.W.2d 695, 696 (Mo.…
cited Cited as authority (rule) State v. Starr
Kan. · 1996 · confidence medium
In Milo, we cited United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983), which holds that such a comment does not impermissibly shift the burden of proof to the defendant. 249 Kan. at 21 .
discussed Cited as authority (rule) State v. Contreras
Wash. Ct. App. · 1990 · confidence medium
There is substantial federal authority holding that the prosecutor may comment on the defense's failure to call a *475 witness as long as a reasonable evidentiary basis exists. 7 As the court stated in United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983), "[t]he prosecutor is free to comment on the failure of the defendant to call an available alibi witness." The court noted that the prosecutor had told the jury during closing argument that the defendant had no duty to call witnesses.
discussed Cited as authority (rule) United States v. Juan Carlos Santana
8th Cir. · 1989 · confidence medium
“The prosecutor is free to comment on the failure of the defendant to call an available alibi witness.” United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983); see also Rush v. United States, 795 F.2d 638, 640 (8th Cir.1986); Moore v. Wyrick, 760 F.2d 884 , 886 n. 2 (8th Cir.1985).
discussed Cited as authority (rule) United States v. Gabriel Alvarez, Gustavo Holguin, Leovigilda Rivera, Humberto Olivares Castrellon and Oneyda Zambrana (2×)
7th Cir. · 1989 · confidence medium
See Israel v. Odom, 521 F.2d 1370, 1374-75 (7th Cir.1975); see also United States v. Patton, 721 F.2d 159, 162-63 (6th Cir.1983); United States v. Schultz, 698 F.2d 365, 367-68 (8th Cir.1983); United States v. Pheaster, 544 F.2d 353, 369 (9th Cir.1976), cert. denied, 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977).
discussed Cited as authority (rule) United States v. Daniel W. O'connell, A/K/A Edward Smith, United States of America v. Gregory J. Cooke, United States of America v. Patrick Basil Collier, United States of America v. William R. Patterson, Ii, United States of America v. Richard Allen St. Cyr, A/K/A Dexter
8th Cir. · 1988 · signal: cf. · confidence medium
Cf. United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983) (prosecutor's comment on defendant's failure to call available alibi witness in extortion case does not shift burden of proof to defendant) For similar reasons, we do not believe the title of the summary either manifested the prosecutor's intent to call attention to Cooke's failure to testify, or was such that the jury would naturally take it as such a comment.
discussed Cited as authority (rule) United States v. O'Connell
8th Cir. · 1988 · signal: cf. · confidence medium
Cf. United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983) (prosecutor's comment on defendant's failure to call available alibi witness in extortion case does not shift burden of proof to defendant).
discussed Cited as authority (rule) United States v. Habib Georges Makhlouta (2×)
9th Cir. · 1986 · confidence medium
United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286 (9th Cir.) (emphasis added) (Ochoa-Sanchez), cert. denied, 459 U.S. 911 , 103 S.Ct. 219 , 74 L.Ed.2d 174 (1982), quoting Grieco v. Hall, 641 F.2d 1029, 1034 (1st Cir.1981) (Grieco); accord Hockenbury v. Sowders, 718 F.2d 155, 158 (6th Cir.1983), cert. denied, 466 U.S. 975 , 104 S.Ct. 2354 , 80 L.Ed.2d 826 (1984); United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983). 1 The government, to provide all relevant evidence bearing on credibility, “may probe all post-arrest statements and the surrounding circumstances under which they were ma…
discussed Cited as authority (rule) Moses Moore v. Donald Wyrick
8th Cir. · 1985 · signal: cf. · confidence medium
See, e.g., Yancey v. Housewright, 664 F.2d 187, 190 (8th Cir.1981) (dictum) (prosecutor may comment on petitioner's failure to call available alibi witnesses); cf. United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983); United States v. *887 Martin, 696 F.2d 49, 52 (6th Cir.), cert. denied, 460 U.S. 1073 , 103 S.Ct. 1532 , 75 L.Ed.2d 953 (1983) (federal prosecutor’s adverse inference argument held proper).
discussed Cited "see" Bernal v. People (2×)
Colo. · 2002 · signal: see · confidence high
See United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983); People v. Bolton, 859 P.2d 311, 319 (Colo.App.1993); People v. Borrego, 668 P.2d 21, 23 (Colo.App.1983).
cited Cited "see" White v. State
Alaska Ct. App. · 1989 · signal: see · confidence high
See United States v. Schultz, 698 F.2d 365, 867-68 (8th Cir.1983); People v. Vallez, 80 Cal.App.3d 46 , 143 Cal.Rptr. 914, 919 (1978).
cited Cited "see" United States v. Jeffrey Earl Johnson
7th Cir. · 1988 · signal: see · confidence high
See United States v. Schultz, 698 F.2d 365, 368 (8th Cir.1983).
discussed Cited "see" United States v. Phillip N. Aders, A/K/A Chick
4th Cir. · 1987 · signal: see · confidence high
See United States v. Schultz, 698 F.2d 365 (8th Cir.1983) (no error in government's remark concerning defendant's failure to call available alibi witness). 21 Similarly, we find no reversible error in the second set of quoted remarks concerning the fact that Dr. Burglass did not file a report.
cited Cited "see" United States v. Jones
S.D.N.Y. · 1986 · signal: accord · confidence high
Accord, United States v. Schultz, 698 F.2d 365, 367-68 (8th Cir.1983); United States v. Leitner, Crim. no. 85-13, Transcript of proceedings on July 22, 1985 (D.N.J.) (J.
discussed Cited "see" United States v. Garry Patton
6th Cir. · 1983 · signal: see · confidence high
See United States v. Pheaster, 544 F.2d 353, 369 (9th Cir.1976), cert. denied, 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977) (“same due process should apply to either *163 method”), Israel v. Odom, 521 F.2d 1370, 1374 (7th Cir.1975) (“As with lineup identification ... the [identification] process should present the question of identification to the witness in as neutral a context as practicable.”) See also, United States v. Schultz, 698 F.2d 365 (8th Cir.1983); Brown v. Harris, 666 F.2d 782 (2d Cir.1981) cert. denied, 456 U.S. 948 , 102 S.Ct. 2017 , 72 L.Ed.2d 472 (1982); Unite…
discussed Cited "see, e.g." United States v. Ables
6th Cir. · 2008 · signal: see also · confidence medium
See Bond, 22 F.3d at 669 (finding prosecutor’s comments about lack of alibi witnesses did not warrant reversal); Newton, 389 F.3d at 638 (finding no misconduct in prosecutor’s reply to defense insinuations that government hid evidence from the jury); United States v. Beddow, 957 F.2d 1330, 1336-37 (6th Cir.1992) (prosecutor’s comment about failure of defendant’s brother to testify in support of defen *520 dant’s claim that brother loaned him money did not warrant reversal); Traylor v. Price, 239 Fed.Appx. 235, 242 (6th Cir.2007) (stating “the prosecutor is permitted to comment on t…
discussed Cited "see, e.g." Maurice Daniel Dance v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2000 · signal: see also · confidence low
State v. Gallagher, 286 N.J.Super. 1 , 668 A.2d 55, 62-63 (App.Div.1995) (citations omitted); see also United States v. Schultz, 698 F.2d 365 (8th Cir.1983).
cited Cited "see, e.g." Gilbert v. State
Alaska Ct. App. · 1995 · signal: see, e.g. · confidence low
See, e.g., United States v. *231 Schultz, 698 F.2d 365 (8th Cir.1983); United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980); cf. Commonwealth v. Niziolek, 380 Mass. 513 , 404 N.E.2d 643 (1980).
discussed Cited "see, e.g." State v. Milo
Kan. · 1991 · signal: see also · confidence medium
See also United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983) (holding that such a comment does not impermissibly shift the burden of proof to the defendant). _ The common thread between Mims and Santana is, however, that the defendant testified.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Robert William SCHULTZ, Jr., Appellant
82-2102.
Court of Appeals for the Eighth Circuit.
Feb 2, 1983.
698 F.2d 365
Carolyn P. Short, Asst. Federal Defender, D.Minn., Minneapolis, Minn., for appellant., James M. Rosenbaum, U.S. Atty., Douglas A. Kelley, Asst. U.S. Atty., D.Minn., Minneapolis, Minn., Douglas C. Kittelson, Law Intern, for appellee.
Bright, Arnold, Gibson.
Cited by 39 opinions  |  Published
ARNOLD, Circuit Judge.

Robert William Schultz, Jr., was convicted by a jury of attempting to extort funds from the Zapp National Bank of St. Cloud, Minnesota, in violation of 18 U.S.C. § 1951(a) (1976). The District Court [1] sentenced him to five years’ imprisonment. On appeal Schultz contends that (1) the government impermissibly cross-examined and commented on his failure to produce a supporting witness, (2) the government impermissibly commented on his post-arrest silence, and (3) a voice-exemplar “lineup” was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. We reject Schultz’s contentions and affirm.

I.

On April 14, 1982, Tracy Morse, a receptionist at the Zapp National Bank, received a telephone call from a man who did not identify himself. She connected the caller with Roger Poganski, an assistant vice-president of the bank. The caller told Mr. Poganski to place $20,000 at the base of a Conoco sign on the other side of town within thirty minutes or hand grenades would be thrown at the bank. Mr. Poganski put together a “dummy package,” drove to the drop site, and placed the package under the Conoco sign. Law enforcement officers, who had the area under surveillance, observed Schultz stop his car beside the Conoco sign and then drive away. Schultz was arrested shortly thereafter, and the dummy package was found in his car. After Schultz was informed of his rights, he made a statement to the police. He admitted picking up the package but denied making any telephone calls to the bank.

II.

At trial, Schultz testified that he was in the area of the Conoco station to meet a friend, whom he identified for the first time as Bill Anderson, so that they[*367] could shop for machinery. The government cross-examined Schultz about why he had not called Anderson as a witness and emphasized the point in its closing argument. Schultz contends that this shifted the burden to him to convince the jury that he was innocent. We disagree. The prosecutor is free to comment on the failure of the defendant to call an available alibi witness. E.g., Yancey v. Housewright, 664 F.2d 187, 190 (8th Cir.1981) (dictum). Although Schultz claimed during cross-examination that he “wouldn’t have the vaguest idea where to look for [Anderson],” T. 211, [2] the prosecutor cast doubt on the truth of this assertion by continued cross-examination, and the jury was free to disbelieve the defendant. Moreover, the prosecutor told the jury during his closing argument that Schultz had no duty to produce evidence, T. 278, 296, and we presume that the court similarly instructed the jury. In these circumstances, we find no error.

III.

At trial, the government cross-examined Schultz about his failure to tell law-enforcement officers after his arrest about his plan to meet Bill Anderson. Schultz argues that the government is prohibited from impeaching a defendant with his post-arrest silence. This is not a case, however, in which the defendant was completely silent after his arrest. After being given satisfactory Miranda warnings, Schultz chose to make a statement about why he was in the area of the drop site: he said he was shopping for machinery. Therefore, when he chose to testify at trial, he was subject to cross-examination with respect to his prior, arguably inconsistent statement concerning the same subject matter. See Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).

IV.

On July 12, 1982, the government made a telephone recording of Schultz’s voice while Schultz read from a prepared script. On July 14 the government recorded the voices of five retired FBI agents while they read from the same script. All the voices were recorded on the same recorder and on the same telephone. During the “lineup,” which was held on July 16, Ms. Morse and Mr. Poganski were separated and were required to listen to the voices individually. Neither Ms. Morse nor Mr. Poganski was told that the defendant’s voice was among those played. The defendant’s counsel was present during the lineup, and the order in which the tapes were played was changed at her request. T. 110. Both Ms. Morse and Mr. Poganski identified Schultz’s voice as that of the extortionist.

Schultz contends that this voice-exemplar lineup was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), that Ms. Morse’s and Mr. Poganski’s testimony about the lineup and identification of Schultz as the caller should have been suppressed. He argues that his voice was halting and uneducated with a peculiar accent, while the five FBI agents’ voices were educated and highly trained. We have carefully reviewed the recordings, and we do not believe that the difference in accent and vocal style between Schultz’s voice and the other five voices was so pronounced as to amount to impermissible suggestiveness. As we observed in United States v. Lewis, 547 F.2d 1030 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977), “Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.” Id. at 1035.

However, in reviewing the tapes, we found a marked difference in volume; the recordings of the five FBI agents’ voices were loud and had good sound resolution, while the recording of the defendant’s voice was soft, and there was a good deal of static or “tape hiss.” We are not sure how to explain this discrepancy. At trial de[*368] fense counsel asked the agent who set up the taping how he explained the difference in quality of the tapes, and he testified he had not noticed any difference in quality. T. 114. Mr. Poganski stated, “He [the caller] spoke very softly on the phone. When we originally listened to the tapes they had it up. I had them turn it down to about the same level that it was on the phone.” T. 29. Perhaps the difference in sound level and tape quality is completely innocent. We do know that the difference is pronounced, at least in the tapes’ present condition, and if the difference was so great at the time of the lineup, there was certainly an impermissible level of suggestiveness. We therefore, in the alternative, proceed to the second criterion of the test for admissibility. If the lineup was impermissibly suggestive, are the identifications nevertheless admissible because there was no very substantial likelihood of irreparable misidentification?

We conclude that there was no very substantial likelihood of irreparable misidentification, and thus the conviction must be affirmed. Ms. Morse, although she spoke with the extortionist for less than a minute, testified that she took a particular interest in voices of persons who telephoned the bank, because she liked to get to know the bank’s customers’ voices. T. 5. She spoke with the caller longer than she would with a normal customer. T. 8. Mr. Poganski spoke with the extortionist for three or four minutes, and he testified that he listened very closely to the voice so that he could identify it. T. 13. He made the caller repeat his instructions several times. Although there is no evidence that either witness described the extortionist’s voice prior to trial, both witnesses identified Schultz’s voice as that of the extortionist, and Mr. Poganski’s identification was definite. T. 25. Finally, we cannot say that the three-month interval between the incident and the lineup in and of itself rendered the identifications unreliable. Under these circumstances, the reliability of the witnesses’ identification of Schultz as the extortionist was a question for the jury to determine.

Accordingly, the judgment of conviction is affirmed.

1

. The Hon. Paul A. Magnuson, United States District Judge for the District of Minnesota.

2

. The reference is to the trial transcript.