U.S. v. Dougherty, 86-1642
| Decision Date | 28 January 1987 |
| Docket Number | No. 86-1642,86-1642 |
| Citation | 810 F.2d 763 |
| Parties | UNITED STATES of America, Appellee, v. Joseph DOUGHERTY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Duane L. Nelson, Lincoln, Neb., for appellant.
Steven A. Russell, Asst. U.S. Atty., Lincoln, Neb., for appellee.
Before JOHN R. GIBSON and FAGG, Circuit Judges, and HANSON, * Senior District Judge.
Joseph Dougherty brings a number of issues before the court, appealing his conviction on two counts of violation of 7 U.S.C. Sec. 2024(b), the unlawful acquisition of food stamps. For the reasons stated below, we affirm the decision of the district court. 1
In March 1985, while working as an undercover agent involved in the enforcement of food stamp laws, Special Agent Joseph F. Meusberger met Arnold Kehm. Using the identity of "Joe Scott," Meusberger told Kehm that if he should meet anyone who was interested in buying food stamp coupons that he could contact him.
In May of 1985, Meusberger learned Kehm had found someone who wanted to purchase food stamps. On May 14, 1985, Meusberger and Kehm went to the Mountains Bar in Lincoln, Nebraska and met with Joseph Dougherty. During that meeting Meusberger informed them that he had a girl friend who worked in the food stamp office and could obtain as many food stamps as he wanted. Dougherty and Kehm agreed to purchase food stamps.
On May 15, 1985, Meusberger again met with Dougherty and Kehm at the Mountains Bar, with Dougherty purchasing $970 in food stamps in exchange for $485 in cash. At this time, also, Meusberger gave Dougherty a telephone number so that Dougherty could reach him if he ever wanted to purchase additional food stamps.
No further contact was made by the secret service with Dougherty. On July 29, 1985, Dougherty called the undercover phone number at the office of the Secret Service, indicating to Special Agent Kelly Ward that he wanted to purchase additional food stamps. As a result of that contact, a meeting was scheduled so that Holger Beckman, another Secret Service Agent, could meet Dougherty on July 31, 1985. At that time Dougherty purchased $950 in food stamps in exchange for $480 in cash.
The Secret Service had no further contact with Dougherty until he called the undercover number again on November 8, 1985, indicating his desire to purchase further food stamps. Dougherty initially stated that he could use $3,000 worth of food stamps. However, after learning that this might be his last opportunity to purchase stamps, Dougherty changed the figure to $4,000 worth of food stamps. During a still later phone conversation, Dougherty advised Meusberger that he was interested in acquiring all the $10,000 of food stamps that Meusberger indicated were available.
On November 20, 1985, Meusberger contacted Dougherty by phone and advised him that he had the $10,000 in food stamps Dougherty had requested. At this point Meusberger proceeded to Dougherty's home where he met with Dougherty and Dougherty's son. After some discussion, it was agreed that Meusberger would accept two checks totalling $5,000 for the $10,000 in food stamps. Meusberger again explained that his girlfriend stole the food stamps from work and expressed his desire not to go to jail as a result of this transaction. Meusberger then gave the food stamps to Dougherty who counted them to verify the amount. After determining that there were only $9,000 in food stamps instead of the $10,000 as agreed to, Meusberger left the checks and food stamps and walked out the door of the residence, ostensibly to obtain the final $1,000 in stamps. Once outside, Meusberger directed a surveillance team to enter the home and arrest Dougherty and his son. As the surveillance team was entering the house, Dougherty attempted to throw the packages of food stamps out of the back door.
Following his arrest, Dougherty was interrogated by the Secret Service. He admitted purchasing $970 in food stamps on May 15, 1985 at the Mountains Bar, and further acknowledged that on July 31, 1985 he purchased $950 in food stamps for $480 in cash. He also admitted that he had attempted to purchase $10,000 worth of food stamps for $5,000 in cash on November 20, 1985.
In his opening statement to the jury, the prosecutor made the following statement: "We also expect to call Mr. Artie Kehm who has himself been convicted of a felony offense relating to this investigation." The district court denied Dougherty's motion for a mistrial as a result of this statement. Subsequently, the court gave a curative instruction to the jury.
Dougherty asserts these statements made by the prosecutor in his opening statement warranted the district court to declare a mistrial. He asserts that under Fed.R.Evid. 609(a), the prosecution cannot mention a witness's prior conviction during opening statement. Under the law of this Circuit, the test for reversible prosecutorial misconduct has two parts: (a) the prosecutor's remarks or conduct must have in fact been improper, and (b) such remarks or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). Not every impropriety of argument calls for a new trial or for a reversal of a judgment of conviction; nor should appellate courts reverse for such improprieties unless persuaded that they prejudice the defendant and the prejudice was not removed by the trial judge before submission of the case to the jury. Keeble v. United States, 347 F.2d 951, 956 (8th Cir.), cert. denied, 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 350 (1965). Moreover, the denial of a motion for mistrial is placed in the sound discretion of the district court and may only be reversed on a showing of abuse of discretion. Hernandez, 779 F.2d at 458.
We believe that the Assistant United States Attorney's reference in opening statement to Kehm's conviction was improper. The government asserts that its reference to Kehm's conviction was an attempt to blunt any potential impeachment of his credibility which would imply that he was lying in order to have his own sentence reduced. See Hernandez, 779 F.2d at 459; United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979). We would place credence in the government's argument if there were reason to believe the blunting was indeed necessary to avoid impeachment of Kehm. In fact, the prosecutor failed to blunt on direct examination any cross-examination which would go into Kehm's felony conviction; instead, the prosecutor told the jury gratuitously in opening statement that Kehm was convicted of a felony in this very set of transactions. By referring to Kehm's conviction in his opening statement, instead of waiting until direct examination, the Assistant United States Attorney created not only the possibility of a mistrial, but also the real potential that on appellate review, dependent upon the prejudicial effect of the prosecutor's remarks, an otherwise valid conviction could be reversed. See United States v. Pierce, 792 F.2d 740, 740 (8th Cir.1986); Hernandez, 779 F.2d at 459-60. This case demonstrates once again that too often in strong cases prosecutors make statements they need not make. Having let his "zeal out run discretion," United States v. Killian, 524 F.2d 1268, 1274 (5th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976), the prosecutor forces us to determine the prejudicial effect of his statement.
To determine the prejudicial effect of the prosecutor's improper statements, we must examine: (1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions taken by the trial court. Hernandez, 779 F.2d at 460.
In the present case, when viewed in the context of the entire trial, the statement made by the prosecutor had little, if any, cumulative effect on the outcome of the trial. The prosecutor made no further reference to Kehm's felony conviction and took additional measures to see to it that Kehm did not talk about his felony conviction during direct examination. Furthermore, the fact that the jury found Dougherty not guilty of the only transaction regarding the prosecutor's improper statement suggests that there was little cumulative effect on the jury.
In addition, there was overwhelming evidence of guilt as to the second and third counts irrespective of the improper statement made by the prosecutor. Tape recordings of each transaction, testimony, and exhibits conclusively demonstrated Dougherty's guilt with regard to the transactions occurring on July 31 and November 20.
Finally, the curative action taken by the trial court eliminated any prejudicial impact the improper statement would have had. The district court offered to give a curative instruction to the jury regarding the prosecutor's remarks. The court then advised the defendant that it would give such an instruction when requested by counsel. During the instruction conference, defendant's counsel did not object to giving a cautionary instruction, although not abandoning his motion for a mistrial. The court thereafter instructed the jury:
During his opening statement on Monday, the government counsel said Artie Kehm had been convicted of a felony. There is no evidence that Artie Kehm had been convicted of a felony and you must disregard entirely the statement that he has been.
(Tr. 720-21). Ideally, the trial court should have given a cautionary instruction to the jury immediately after the misconduct had occurred. Hernandez, 779 F.2d at 461. Although the curative instruction was not given immediately after the improper statement had been made by the prosecutor, it is clear that the district court's remedial action alleviated any possible prejudice. As a result, in the totality of the circumstances of the entire trial, there was no...
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