Johnson v. United States

• Citation: 484 F.2d 309
• Decision Date: 24 July 1973
• Docket Number: No. 73-1197.,73-1197.
• Parties: Morris JOHNSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

484 F.2d 309 (1973)

Morris JOHNSON, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 73-1197.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1973.

Decided July 24, 1973.

Certiorari Denied November 19, 1973.

Walter J. Matejka, Omaha, Neb., for appellant.

William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellee.

Before Mr. Justice CLARK,^* and HEANEY and BRIGHT, Circuit Judges.

Certiorari Denied November 19, 1973. See 94 S.Ct. 539.

PER CURIAM:

Appellant Morris Johnson was convicted of knowingly and intentionally distributing heroin. On appeal he challenges (1) the denial of his motion to discharge the jury panel or grant a continuance, (2) certain comments by the prosecutor referring to Johnson as a "pusher" and (3) an instruction stating that no inference of guilt could be drawn from Johnson's "failure" to testify. We find no merit in any of Johnson's claims and affirm the conviction.

(1) The District Court conducted the basic voir dire questioning of the jury panel, but it gave counsel the opportunity to conduct further inquiry. During voir dire several prospective jurors said that they had heard certain government witnesses, Hutton, Ryan and Frazier, testify in previous trials. These same witnesses were expected to and subsequently did in fact testify against Johnson. At the conclusion of voir dire Johnson's counsel expressly declined to challenge any juror for cause. Johnson's first objection to the jury panel was made immediately prior to the exercise by him and the prosecutor of their respective peremptory challenges. Johnson based his motion, in part, on the per se argument that no fair and impartial jury could be selected from the panel since a majority of these jurors had heard Hutton, Ryan and Frazier testify at one or more previous trials. The District Court denied the motion.

Johnson failed to establish that any juror was actually prejudiced in favor of the three government witnesses. He does not point to the voir dire of any particular juror as indicating actual prejudice, nor does he complain that the voir dire was in any way inadequate. Indeed, he did not even attempt to have any juror dismissed for cause. His claim that he was denied an impartial jury must therefore rest wholly on a per se theory of implied bias. We do not think that the danger of prejudice against the accused arising from jurors having served in prior cases involving the same government witnesses but different, unrelated defendants and entirely different and independent transactions is great enough to justify a per se rule of bias. The "mere existence of any preconceived notion" relevant to the accused's guilt or innocence is not sufficient to negate impartiality. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See Fabian v. United States, 358 F.2d 187, 191 (1966). Johnson does not cite any federal case reversing a conviction on the per se rule that he advances and we have discovered none. On the contrary, the cases uniformly reject the argument. United State v. Haynes, 398 F.2d 980 (2d Cir. 1968); Cwach v. United States, 212 F.2d 520 (8th Cir. 1954); Haussener v. United States, 4 F.2d 884 (8th Cir. 1925). See Casias v. United States, 315 F.2d 614 (10th Cir. 1963). While we do not endorse the procedure followed here, we do not regard it as reversible error in the absence of some showing of actual prejudice.

(2) During rebuttal argument the prosecutor made the following statement to the jury:

"Early in the case the defense counsel suggested how easy it was to get narcotics in this town; like talcum powder in a medicine cabinet, is the example he used. Well, it\'s easy to get it in this town because pushers like the defendant will sell to anybody, and they will sell to three people that walk up to them on the street. That it why it is easy to get."

Johnson moved for a mistrial on the basis that this statement was...