U.S. v. Banks
| Citation | 687 F.2d 967 |
| Decision Date | 23 August 1982 |
| Docket Number | 81-1167,Nos. 81-1420,s. 81-1420 |
| Parties | 11 Fed. R. Evid. Serv. 1036 UNITED STATES of America, Plaintiff-Appellee, v. Carl E. BANKS and Arthester McCruiston, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
David C. Thomas, Chicago Kent College of Law, Chicago, Ill., Rebecca Balanoff, Hammond, Ind., for defendants-appellants.
Paul A. Murphy, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
Before SWYGERT, Senior Circuit Judge, and PELL and BAUER, Circuit Judges.
On December 3, 1980, a jury convicted the appellant Arthester McCruiston of knowingly and intentionally distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976). In the same trial, the appellant Carl E. Banks was convicted of the same offense as an aider and abettor in the offense charged. McCruiston was sentenced to five years imprisonment and three years of special parole. Banks was sentenced to five years imprisonment. Banks appeals from his conviction asserting that his level of involvement in the offense charged was not sufficient to sustain his conviction as an aider and abettor. McCruiston appeals on the grounds that the district court erred in its refusal to sever the trials, in its supervision of the voir dire, and in its ruling on admission of McCruiston's prior convictions.
On September 17, 1980, Chicago police officer Herbert Milton, acting undercover with the Federal Drug Enforcement Administration (DEA), met with Carl Banks at the A&M Lounge in Waukegan, Illinois. There they discussed the sale to Milton of three ounces of heroin from a source of supply in Gary, Indiana. Milton asked if he could go with Banks' "courier" on the trip to Gary. Banks told Milton the trip could not be made until after September 19, 1980, because his courier would be in the hospital until that date. Banks was unable to quote Milton a price on the heroin.
On September 26, 1980, Milton again met with Banks at the lounge. Banks asked Milton if he still intended to purchase the three ounces of heroin. When Milton replied that he did, Banks told him, "Rather than make the trip to Gary, you could buy some brown heroin from me here." When Milton hesitated, Banks told him to go ahead and make the trip. Banks then brought over Arthester McCruiston, who began to negotiate with Milton about the heroin.
Milton said that he had $8,000.00 to spend but McCruiston said that he could not provide a price per ounce because his supplier in Gary was on his way back from New York with half a kilo. At this point, in McCruiston's presence, Banks reassured Milton as to McCruiston's reliability and both appellants began to boast of their drug transactions. Eventually Milton left with the understanding that he would call at a later point in the day to arrange going to Gary.
Later Milton called the A&M Lounge three times. On the first call Milton asked Banks if McCruiston was there, and McCruiston came to the phone and told Milton that his supplier was not yet back from New York. At about 4:40 p. m., Milton called and was told by Banks to come to the lounge and that everything was ready.
Milton and DEA Agent Patricia Collins went to the A&M Lounge at 4:55 p. m., and Milton went into the lounge with Banks and met McCruiston. McCruiston told Milton that everything was set and that the price was $2,600.00 per ounce. At one point in this discussion Banks told Milton,
Milton, Collins, and McCruiston then left for Gary following McCruiston's directions. On the way, McCruiston discussed how he would take the money into his source to obtain the heroin. En route, McCruiston stopped to call his contact in Gary and then assured Milton and Collins that everything was ready. At 7:30 p. m. they arrived in Gary and proceeded to a house that McCruiston said was his source's house. McCruiston went into the house, and then returned to the car and suggested that they drive around a while until the package of heroin was ready. After over two hours of driving with McCruiston making occasional calls, they returned to the house and McCruiston again went into the house. At approximately 10:45 p. m. McCruiston came out of the house and informed the agents that he would bring them a sample of the heroin.
At approximately 11:05 p. m., McCruiston brought to the officers in the car a sample of what he said was "... the exact same heroin you are going to buy." Milton pretended to sample the heroin and told the appellant that the heroin was good. McCruiston then asked for the money and Milton refused. McCruiston went back into the house and returned in approximately ten minutes with two plastic bags of white powder. Agent Collins then proceeded to arrest McCruiston. Subsequent chemical analysis revealed that the two plastic bags of white powder brought by McCruiston to the car contained heroin.
McCruiston's primary objection to the district court decision is predicated on the admissibility of McCruiston's prior convictions for impeachment purposes. It is the position of McCruiston that the court ruled these convictions to be admissible for impeachment purposes without complying with this court's decision in United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976).
In Mahone, we urged trial judges to balance the probative value of prior convictions against their prejudicial effect, as required by Federal Rule of Evidence 609(a) after a hearing on the record, and to find explicitly that the prejudicial effect was outweighed by the probative value if the convictions are to be deemed admissible. Such an explicit finding is desirable to aid the appellate court in assessing whether the requirements of Rule 609 had been met. In Mahone, we also set forth some of the factors to be considered in the balancing determination: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976).
After the district court's decision in this case, this court reaffirmed the principles enunciated in Mahone and evaluated when a trial court should make its balancing determination on the record in response to a pretrial motion to exclude prior convictions. Federal Rule of Criminal Procedure 12(e) states that "(a) motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial...." In United States v. Fountain, 642 F.2d 1083 (7th Cir.), cert. denied, 451 U.S. 993, 101 S.Ct. 2335, 68 L.Ed.2d 854 (1981), we noted that the pre-trial motion in that case filed three weeks before the trial could have been decided before trial, but on the facts of the case we found no reversible error because the defendant at the pre-trial conference had agreed to defer the hearing on the motion until later.
In the present case, the defendant filed a motion in limine on December 1, 1980, just minutes prior to the trial, while the jury panel waited. The court had previously ordered on October 16, 1980, that all pre-trial motions were to be filed within ten days. The defendant claims that its delay in filing was attributable to the Government's delay in conveying to him a list of his prior convictions. In any event, the trial judge permitted filing of the motion and allowed the defendant to argue the motion. 1
Counsel for McCruiston argued the motion incorporating the Mahone standards but not referring to the case by name. At the end of defendant's argument, the court responded, When asked by counsel for McCruiston for a ruling in order to make an opening statement, the court said:
My posture is that I will admit it, but I want to look into the matter further. There is a decision by Judge Swygert I want to go back and read.
It is this purported "ruling" from which McCruiston appeals and upon which his refusal to testify was purportedly based. The court did not at any time afterwards address the motion nor was the motion again urged by McCruiston.
In United States v. Sternback, 402 F.2d 353 (7th Cir. 1968), cert. denied, 393 U.S. 1082, 89 S.Ct. 862, 21 L.Ed.2d 774 (1969), this court was presented with a similar factual situation and equivocal "ruling." In that case, the defendant made a motion to exclude prior convictions during a recess in the government's case. The judge indicated a ruling but expressed concern about other relevant decisions and concluded, "We will check it out." Subsequently no precise ruling by the court or renewed motion by defense counsel was made. We concluded that "... if this defendant's fear of the use of the conviction was indeed the reason why he decided not to testify it was incumbent upon counsel to pursue the question and obtain a definite ruling." Thus, we refused to find that the issue had been preserved for appeal.
On the facts of this case before us, the district court judge initially concluded that the parameters of the case had not been sufficiently developed to warrant a pre-trial ruling on the motion. He indicated his inclination to admit the convictions but expressly reserved a ruling until he could at least check another decision. Under these circumstances, there was no definite ruling at that point admitting the convictions from which McCruiston could appeal. McCruiston failed to renew his motion at any time thereafter to obtain a...
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