U.S. v. Tweed

• Decision Date: 27 November 1974
• Docket Number: No. 73-1131,73-1131
• Citation: 503 F.2d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaiah Louis TWEED, a/k/a Isaiah Lewis Tweed, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1127

503 F.2d 1127

UNITED STATES of America, Plaintiff-Appellee, v. Isaiah Louis TWEED, a/k/a Isaiah Lewis Tweed, Defendant-Appellant.

No. 73-1131.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 1974.

Decided Sept. 23, 1974, As Amended Oct. 21, 1974, Rehearing

Denied Nov. 27, 1974.

Robert F. Godfrey, E. St. Louis, Ill., for defendant-appellant.

Henry A. Schwarz, U.S. Atty., and Frederick J. Hess, Asst. U.S. Atty., E. St. Louis, Ill., for plaintiff-appellee.

Before FAIRCHILD, PELL and STEVENS, Circuit Judges.

PELL, Circuit Judge.

Defendant-Appellant Isaiah Tweed appeals from a judgment of conviction following a verdict of guilty on two counts of an indictment for possession of destructive devices in violation of 26 U.S.C. 5861(c), 5861(d), and 5871. Tweed raises a number of issues on appeal, the most significant ones being: (1) whether the district court erred in its examination and exclusion of certain veniremen; and (2) whether the district court erred in permitting the Government to introduce certain evidence in rebuttal.

I

Approximately four months prior to the trial in the present case, Tweed was tried and acquitted by a jury for possession of a sawed-off shotgun. The two Counts of the firearms trial involved a later incident than that involved in the present trial and had been severed from the remaining counts of the present trial indictment. At the voir dire in the present case, defense counsel asked that three prospective jurors be removed for cause: one had served on the jury in the prior trial and two had been on the jury panel, although not the actual jury, in the prior trial. After examining these three persons, the district court removed for cause the venireman who had actually served on the previous jury, but refused to remove for cause the two veniremen who had been in the prior jury panel. Tweed contends that the district judge erred in failing to exclude for cause these two veniremen.

The two veniremen in question, however, did not actually serve on the jury in the present case being removed apparently by means of peremptory challenges. The defendant has made no showing that the use of these peremptory challenges in any way prejudiced his case. In this situation no error arose from the district court's refusal to exclude these veniremen for cause. Cf. Jordan v. United States, 295 F.2d 355, 356 (10th Cir. 1961), cert. denied, 368 U.S. 975, 82 S.Ct. 479, 7 L.Ed.2d 438 (1962).

Tweed also contends that the district judge committed error in asking the entire jury panel:

'Have any of you, those of you who served here in June and July, were you on any trial involving this defendant?'

The defendant argues that this question informed the entire jury panel in the present case that Tweed had been tried earlier in a criminal matter and permitted the panel to infer that Tweed was disposed to commit crimes.

The defendant has read too much into the district judge's question. The question does not indicate that the earlier action was a criminal trial. In the question immediately preceding this one, the trial judge had asked, in fact, about whether any panel members had served previously on either criminal or civil juries. Moreover, the district judge's question only indicated that Tweed had been 'involved' in a prior action. From this question, the veniremen could not have known whether Tweed was a plaintiff, a defendant, or a witness in the earlier trial. We conclude that the district judge's question does not require reversal.

Tweed further complains of the district court's refusal to engage in further interrogation of the three jurors in question. We are satisfied that the judge sufficiently brought out their connection with the panel and their connection or lack of connection with the earlier trial. In any event, as stated before, none of the three served on the jury in the present case.

We find no merit in the contention that the entire panel should have been excused. Tweed relies on Mottram v. Murch, 458 F.2d 626 (1st Cir. 1972), and United States v. Leonard, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964). In Mottram, four jurors were permitted to sit on both trials and in Leonard a jury was selected from a panel which had heard the pronouncement of a guilty verdict in the prosecution of the same defendant for a similar crime. Over and above the fact that in the present situation the defendant had been found not guilty by the prior jury of an offense arising out of the later transaction, the factual situations of the cited cases are otherwise so far removed from the present case as to make them inapplicable as authority.

No prejudice to Tweed's right to a fair trial has been demonstrated by the district court's manner of handling the impaneling of the jury and consequently we find no ground for reversal.

II

Tweed next argues that the district court erred in allowing the Government to introduce evidence in rebuttal for the purpose of impeaching the defendant after this evidence had been suppressed by the court due to an unlawful search and seizure. We find that this evidence was properly admitted under Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

In Walder, a defendant charged with possession of narcotics testified on both direct and cross examination that he had never sold, possessed, or handled narcotics. The Supreme Court held that, under these circumstances, the Government was properly permitted to present, in rebuttal, evidence of a heroin capsule, which had been unlawfully seized from the defendant...