U.S. v. Burkhead, s. 80-1534

• Decision Date: 16 June 1981
• Docket Number: 80-1535,Nos. 80-1534,s. 80-1534
• Parties: 8 Fed. R. Evid. Serv. 197 UNITED STATES of America, Appellee, v. Darrel Leon BURKHEAD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1283

646 F.2d 1283

8 Fed. R. Evid. Serv. 197

UNITED STATES of America, Appellee, v. Darrel Leon BURKHEAD, Appellant.

Nos. 80-1534, 80-1535.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1981.

Decided April 21, 1981.

Rehearing and Rehearing En Banc Denied May 15, 1981.

Rehearing Denied June 16, 1981.

Robert G. Duncan, Duncan, Russell & Reardon, Kansas City, Mo., for appellant.

Ronald S. Reed, Jr., U. S. Atty., W. D. Mo., Sheryle L. Jeans, Edward D. Holmes, Attys., U. S. Dept. of Justice, Kansas City, Mo., for appellee.

Before HEANEY, ROSS and ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

Defendant-appellant Darrel Leon Burkhead was charged in a seven-count indictment with narcotics offenses violative of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. §§ 2 & 1952. The district court severed Count I, which charged three defendants with conspiracy, from the remaining substantive counts and ordered a separate trial. Burkhead was convicted on five of the six substantive counts. In a subsequent trial, he was convicted on the conspiracy count. He was sentenced to ten years imprisonment and fined $10,000 on each count, the sentences to be served concurrently. In addition, he received three-year special parole terms for Counts II, III and IV.

Burkhead asserts that the district court committed reversible error by (1) restricting the cross-examination of a key government witness; (2) permitting the prosecutor to use in the second trial a stipulation entered into before the first trial; (3) denying a motion to set aside the convictions on the substantive counts on the basis of newly discovered evidence; and (4) refusing to rule on whether Burkhead's convictions on the substantive counts could be used to impeach his credibility if he testified in the second trial. We affirm in part and reverse in part, 491 F.Supp. 1166.

Burkhead's first three assignments of error are without significance and may be disposed of summarily: (1) We have reviewed the record carefully and are satisfied that all three defendants were given adequate opportunity to cross-examine the government's primary witness. ¹ (2) The stipulation concerning the introduction of certain exhibits was not by its terms limited to use in the first trial and the record indicates that the intention of the parties was to the contrary; indeed, at the opening of the second trial Burkhead's counsel conceded, "Defendant Darrel Burkhead and myself signed the stipulation. We are hooked on that." (3) The "newly discovered evidence" consisted of differences in detail between the testimony of certain government witnesses in the first trial and the testimony of the same witnesses in the second trial. These minor discrepancies are so insignificant that they cannot be considered grounds for questioning the jury's judgment in the first trial.

The final issue raised by Burkhead on appeal is more troublesome. Prior to the second trial, Burkhead filed a motion in limine requesting an order prohibiting the use of his convictions on the substantive counts for impeachment purposes. The trial court refused to rule on the motion. As a consequence, Burkhead declined to testify in the second trial.

The use of prior convictions for impeachment purposes is governed by Rule 609 of the Federal Rules of Evidence. That rule provides that evidence of certain prior convictions may generally be used to attack the credibility of a witness if the trial court determines that the probative value of the evidence outweighs the prejudicial effect of admitting it. Ordinarily, the determination of what evidence will be admitted is left to the discretion of the trial court. In the usual case, the district court also has discretion to refuse to rule in advance of trial on the admissibility of impeachment evidence. See, e. g., United States v. Witschner, 624 F.2d 840, 843-844 (8th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980); United States v. Johnston, 543 F.2d 55, 59 (8th Cir. 1976); United States v. Pfingst, 477 F.2d 177, 193 (2d Cir.), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973).

In our view, however, this case falls so far outside the ordinary situation that the district court's failure to rule in Burkhead's favor on his motion in limine amounted to an abuse of discretion. The parties have not cited and our research has not revealed any court decisions that have addressed the precise issue presented by the facts of this case. Unlike the cases cited by the government, this case does not involve prior offenses totally separate from the offense being charged. Instead, the offenses in question were charged in the same indictment as the one being tried; in fact, the acts involved in some of the substantive counts were alleged to be the overt acts supporting the conspiracy count. Moreover, the conspiracy count was tried separately only because the trial court, on its own motion, determined that severance was desirable. Permitting impeachment following such a severance of counts would virtually ensure a second conviction in every case in which the first trial resulted in conviction. It would allow the government to try the strongest counts of an indictment first in order to "bootstrap" the weaker counts in a subsequent trial. There can be no doubt that the probative value of prior conviction evidence such as is involved in this case is outweighed by its prejudicial effect on the defendant.

The government argues that we should not decide whether Burkhead's convictions...