Jordan v. United States, 6764.

• Decision Date: 22 January 1962
• Docket Number: No. 6764.,6764.
• Citation: 295 F.2d 355
• Parties: Charles R. JORDAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

295 F.2d 355 (1961)

Charles R. JORDAN, Appellant, v. UNITED STATES of America, Appellee.

No. 6764.

United States Court of Appeals Tenth Circuit.

October 12, 1961.

Certiorari Denied January 22, 1962.

Elmore A. Page, Tulsa, Okl., for appellant.

James L. Burton, Asst. U. S. Atty., Oklahoma City, Okl. (Russell H. Smith, U. S. Atty., Tulsa, Okl., was with him on the brief), for appellee.

Before LEWIS and BREITENSTEIN, Circuit Judges, and CHILSON, District Judge.

Certiorari Denied January 22, 1962. See 82 S.Ct. 479.

BREITENSTEIN, Circuit Judge.

Jordan was found guilty by a jury of the purchase and sale of narcotics in violation of 26 U.S.C. §§ 4704(a) and 4705 (a). He seeks to reverse the judgment on the grounds that the court erred in denying his motion to quash the jury panel and in asking certain questions of government witnesses.

Defendant was tried twice on these charges during the same jury term. In the first trial the jury disagreed and a mistrial was declared. Prior to defendant's second trial, and in the same term, 13 other defendants in narcotic cases had been tried and convicted. The government witnesses against this defendant had testified in some of the other trials.

Before the second trial, defendant filed a motion to quash the jury panel alleging the mistrial, the number of other cases involving narcotic violations and heard by some members of the same jury panel, and the publicity given such trials as reasons for the impossibility of a fair trial for him before the jury panel. He offered no evidence in support of the motion and the trial court ruled against him.

There were 28 jurors on the panel called for defendant's second trial. Of these, 6 were new and had been on no juries during the term in question. In the voir dire examination of the jurors called into the box the court interrogated them with reference to the publicity given the previous narcotic trials and the effect upon them of the mistrial. With permission of the court, defense counsel propounded questions to the prospective jurors as to their attitude towards narcotic cases and as to possible effect of the conviction of other defendants of narcotic charges in cases in which some of them sat as jurors. There were no challenges for cause and the defendant exercised only 5 of his 10 peremptory challenges. The jury as selected consisted of 4 of the new members of the panel, 2 from the old panel who had sat on none of the previous narcotic cases, and 6 of the old panel who had been on such cases.

The record is devoid of any showing as to the character and extent of the publicity attending the mentioned narcotic trials. Accordingly the defendant's contention may be considered only as to the ground that the panel called for his trial was made up of jurors who had been on the panel during the previous narcotic trials. This is not persuasive as 6 of the panel were new and a challenge such as made here raises the sole question of the invalidity of the entire panel because of some vitiating defect or irregularity.¹ By his failure to exercise any challenge for cause and by his use of only half of his peremptory challenges, the defendant has waived the right to complain that he was not tried by an impartial jury.²

In the course of the trial the court propounded certain questions to the witness Potter, an addict-informer, and to the witness Casey, a federal narcotic agent. Prejudicial error is said to result therefrom because...