U.S. v. Conley

Citation503 F.2d 520
Decision Date03 October 1974
Docket NumberNo. 74-1251,74-1251
PartiesUNITED STATES of America, Appellee, v. John CONLEY, Jr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James A. Bell, St. Louis, Mo., for appellant.

Thomas M. Vockrodt, Special Atty. Crim. Div., U.S. Dept. of Justice, St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellant, John Conley, Jr., was convicted on one count of a two count indictment charging sales of heroin on July 21, 1973 and August 2, 1973. A third count charging conspiracy to sell heroin was dismissed by the government prior to his first trial in which a mistrial was declared because the jurors could not agree on a verdict.

Appellant seeks reversal upon the grounds that (1) he was twice placed in jeopardy for the same offense; (2) the system of jury selection deprived black defendants of a right to a fair and impartial trial; (3) there was error in the reasonable doubt instruction; (4) the court erred in failing to provide the jury with a written copy of the instructions; (5) the court erred in allowing a witness to refresh his memory from an examination of the notes of another witness; and (6) the court erred in refusing to declare a mistrial because of the repeated references by government witnesses about murders, particularly with respect to killings in St. Louis over narcotics.

We reverse and remand for new trial because of the prejudice created by the remarks of the government witnesses with respect to murders in connection with narcotics. Brief comment will be made with respect to the other errors charged.

Appellant was first tried on December 17 and 18, 1973, the cause being submitted to the jury at 8:00 p.m. on the 18th. Later that evening the jury was discharged upon failure to arrive at a verdict. Appellant contends that the trial court abused its discretion in aborting the trial without his consent and for no apparent reason after the jury had deliberated only one and one-half to two hours. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The government points out that without reaching the merits 1 of appellant's contention this court cannot consider the issue of double jeopardy because it was not raised until after trial. We agree that the claim is untimely. In Ferina v. United States, 340 F.2d 837, 838 (8th Cir. 1965), we observed that 'constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded by the defendant at the time of trial will be regarded as waived. Kistner v. United States, 332 F.2d 978 (8th Cir. 1964); Harris v. United States, 237 F.2d 274 (8th Cir. 1956); Barker v. State of Ohio, 328 F.2d 582 (6th Cir. 1964).' Here the defense of former jeopardy is raised for the first time on appeal. It cannot now be considered.

Appellant, prior to his voir dire of the jury, moved 'to strike the entire panel because it is not representative of the Negro race.' He pointed out to the court that there was only one black on the panel of twenty-eight called and the government could strike her peremptorily. After the jury was selected, appellant renewed his motion, calling the court's attention to the fact that the black had been striken peremptorily by the government and he was forced to be tried by an all-white jury. He argued that under the jury selection system then in effect the number of blacks were so few that the government could exclude all blacks from the case.

In his argument before us appellant contends that the St. Louis Division of the Eastern District of Missouri contains several counties where there are no blacks, which results in a jury panel with so few blacks that they can be peremptorily challenged. 'Therefore, the system is geared for the systematic exclusion of blacks from sitting on petit juries where blacks are defendants * * *.'

A similar challenge was made and rejected by our court in United States v. Pollard, 483 F.2d 929, 930 (8th Cir. 1973). In Pollard we noted that the Eastern District of Missouri, like all other districts in the Eighth Circuit had adopted a plan for random jury selection which had been approved in accordance with the provisions of 28 U.S.C. 1863. We further pointed out that under Swain v. State of Alabama, 380 U.S. 202, 221-224, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the striking of Negroes in a particular case is not sufficient to overcome the presumption that the prosecutor is using the government's challenges to obtain a fair and impartial jury. However, '* * * the presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor's systematic exclusion of blacks from petit juries over an extended period of time.' Pollard at 930. There, as here, no such proof was offered. Appellant's contention must therefore be rejected.

Appellant's present challenge to the reasonable doubt instruction is rejected because if there was error, and we do not say there was, it was not properly called to the trial court's attention before the jury retired to consider its verdict as required by Rule 30, F.R.Crim.P. See Friedman v. United States, 381 F.2d 155, 160-161 (8th Cir. 1967). Neither do we find there was plain error under Rule 52(b). F.R.Crim.P. See United States v. Atkins, 487 F.2d 257, 260 (8th Cir. 1973).

We find no abuse of discretion on the part of the trial court in refusing appellant's request to submit the instructions to the jury in written form. Whether a written copy of the court's charge should be submitted to the jury is within the sound discretion of the trial judge. United States v. Blane, 375 F.2d 249, 255 (6th Cir. 1967); Oertle v. United States, 370 F.2d 719, 728-729 (10th Cir. 1967). Here the trial lasted less than two days and the issues were not complicated.

Appellant urges that the trial court erred in permitting witness Stewart (informant) to refresh his memory concerning a portion of a conversation he had with appellant by referring to government agent Guilbeaux's report. The propriety of permitting a witness to refresh his memory from a writing prepared by another largely lies within the sound discretion of the trial court. See United States v. Riccardi, 174 F.2d 883, 888-889 (3d Cir. 1949); McCormick, Law of Evidence, 9 pp. 17-18 (2d Ed. 1972). No useful purpose is served in discussing further the issue here presented because it is not apt to reoccur in the same context.

Finally, appellant contends the trial court erred in refusing to declare a mistrial because of the repeated references by government witnesses to murders, particularly killings in St. Louis over narcotics. We agree.

The principal evidence offered by the government in support of its case against the defendant consisted of the testimony of undercover employee Stewart (informant) and Special Agent Guilbeaux of the Bureau of Narcotics and Dangerous Drugs.

Informant Stewart testified that after some preliminary negotiations with defendant he made the July 21 purchase of heroin from defendant at Regal Sports Lounge in St. Louis (Count I). The jury acquitted defendant on this count. Informant further testified that after a meeting with defendant on August 1 defendant set up a meeting the next day at Regal Sports Lounge where he indicated he would make a sale to informant and Special Agent Guilbeaux; August 2 informant and Special Agent Guilbeaux met defendant as arranged;...

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