U.S. v. Harding, 75-1240

• Decision Date: 17 November 1975
• Docket Number: No. 75-1240,75-1240
• Citation: 525 F.2d 84
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ledford Gene HARDING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 84

525 F.2d 84

UNITED STATES of America, Plaintiff-Appellee, v. Ledford Gene HARDING, Defendant-Appellant.

No. 75-1240.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 1975.

Decided Nov. 17, 1975.

Edward Burke Arnolds, Chicago, Ill., for defendant-appellant.

John R. Wilks, U. S. Atty., Andrew G. Baker, Jr., Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before PELL and STEVENS, Circuit Judges, and PERRY, Senior District Judge. ^*

STEVENS, Circuit Judge.

In his cross-examination of appellant Harding, the prosecutor spent almost as much time asking about appellant's prior conviction of possession of marijuana as about the charge of selling one gram of cocaine, for which he was on trial. The jury found him guilty; ¹ Harding's appeal requires us to identify the improper portions of the cross-examination and to decide whether the prejudice was sufficiently significant to mandate a new trial.

Before describing the use of appellant's prior conviction, we briefly summarize the evidence on the issue of guilt or innocence.

I.

The government's case against Harding rested entirely on the testimony of a young man named Jerry Baker who worked as a part-time "under cover agent" for the Sheriff of Blackford County, Indiana. ² Baker testified about two incidents, one on January 25, 1974, and the second on the following evening.

According to Baker's testimony, on the 25th he accompanied a juvenile named Chuck Burton to appellant's home and waited outside by his car while Burton made a purchase of a glassine bag containing a "green vegetable like substance" for $15. The purchase was made from appellant's wife, but appellant was present and had an opportunity to see Baker. ³

Baker testified that he purchased a gram of cocaine from appellant on the following evening. No one except Baker and appellant participated in the transaction or observed it.

At about 7:55 p. m. appellant answered Baker's knock at the door. According to his testimony, Baker told him that he was the one who had accompanied Burton the previous evening, and that he was interested in purchasing a gram of cocaine. Baker further testified that appellant then told him that it would cost him $60 and to return in an hour when appellant would have it ready. Baker then went to the home of the Blackford County Sheriff's department narcotics coordinator, discussed the transaction with him, and waited the hour. He testified that he then returned to appellant's home where appellant handed him an envelope of white powder, for which Baker paid $60. Baker then left.

Baker testified that he conducted a field test of the powder, determined that it contained cocaine or a cocaine derivative, and then took it home where he kept it under lock and key for ten days before delivering it to a chemist for examination.

The only other witness to testify for the prosecution was a chemist who confirmed the fact that the package which Baker said he obtained from appellant did actually contain cocaine.

Harding's testimony contradicted Baker's. According to Harding, he did not see Baker until the evening of the 26th and never met Burton at all. Baker, according to appellant, arrived at his doorstep between 5:30 and 6:00 o'clock on the 26th and told appellant that "Val said that you might have some cocaine for sale." ⁴ Appellant, according to his own testimony, then replied, "No, I don't. . . . I don't know anything about it," and told Baker that he had better go back and talk to Val. Baker then left and appellant returned to watching television.

As the trial judge stated, the central issue before the jury was, "Whose story are you going to believe?" Tr. 134. There was no corroboration of either Baker's or appellant's version of the facts. ⁵ And it is at least arguable that each witness had a possible motive to falsify. ⁶ In these circumstances, impeaching evidence, and the way it is used, may be of critical importance. ⁷

II.

About five months before the trial in this case, appellant was found guilty on a charge that he "did knowingly and feloniously possess a certain controlled substance to wit: approximately 80 pounds of Marijuana which is more than ten (10) grams of said substance . . . ." ⁸ Since that charge was filed only a few days before the indictment in this case, the prosecutor was undoubtedly familiar with it.

During his cross-examination of appellant, the prosecutor made extensive use of that prior conviction. ⁹ He (1) repeatedly referred to the fact that 80 pounds of marijuana were involved; (2) implied that appellant falsely described the charge as simple possession rather than possession with intent to distribute; (3) asked when and where the marijuana had been found; and (4) asked whether appellant had the marijuana in his home at the time of the alleged cocaine sale.

In his closing argument to the jury, the prosecutor again referred to the prior offense:

The Defendant has also denied ever using marijuana or any narcotics, but admitted to being convicted of a felony of possession, which 80 pounds of marijuana was found in his home in June of 1974, five months after this transaction took place. The Government submits that is a little unusual.

Tr. 109.

The trial judge did not instruct the jury that the evidence of a prior conviction could only be considered as it reflected on the truthfulness of the witness. Defense counsel did not ask for such an instruction and made no objection to the cross-examination or the closing argument.

III.

The prosecutor may use a prior conviction to impeach a witness. Whether the witness be the defendant or a third party, the scope of the examination is strictly limited in order to avoid the confusion which may attend the trial of collateral issues, and also to avoid unfairness to the witness. ¹⁰ The rule that it is error to inquire about the details of prior criminal conduct is so well established that such error is cognizable despite the absence of any objection by defense counsel. United States v. Dow,457 F.2d 246, 250 (7th Cir. 1972); United States v. Mitchell, 427 F.2d 644, 647 (3rd Cir. 1970); United States v. Pennix, 313 F.2d 524, 531 (4th Cir. 1963). ¹¹

When the prior conviction is used to impeach a defendant who elects to take the stand to testify in his own behalf, two inferences, one permissible and the other impermissible, inevitably arise. The fact that the defendant has sinned in the past implies that he is more likely to give false testimony than other witnesses; it also implies that he is more likely to have committed the offense for which he is being tried than if he had previously led a blameless life. The law approves of the former inference but not the latter. ¹²

The strength of the former inference is a function of the character of the prior offense and its closeness in point of time. ¹³ The strength of the second inference is largely a function of the degree of similarity between the earlier crime and the present charge. Thus, a prior conviction for possession of marijuana may or may not provide a reasonable basis for discrediting the veracity of a witness, but it would almost certainly provide a persuasive (even though impermissible) reason for believing that there is validity to a second charge of possession.

In this case, the fact that the prior offense resulted in a prison sentence of at least two years, and the fact that 80 pounds of marijuana were involved, characterized the offense as sufficiently serious to justify the permissible inference. And since both of these facts could be ascertained from the written record of the conviction, they could be placed in evidence without opening the door to collateral inquiries. Moreover, there is no reason why such facts may not be brought out during the cross-examination of the witness instead of by the use of the record of conviction itself. ¹⁴ It was therefore not error for the prosecutor to elicit testimony from appellant about his sentence and about the quantity of marijuana described in the charge on which he was convicted.

On the other hand, in view of the similarity between the prior offense and the present charge, the risk of unfair prejudice was especially strong. Both the prosecutor and the court had a duty to minimize the risk that the jury would infer guilt on the cocaine charge from the fact of a recent conviction on a marijuana charge. ¹⁵ Instead of avoiding that risk, we think the transcript, fairly read, indicates that the prosecutor affirmatively invited the jury to draw the impermissible inference.

Consider, for example, his questions establishing the fact that the 80 pounds of marijuana had been found in appellant's home. That was a detail of the prior offense not disclosed by the record of conviction and therefore inadmissible. It was totally irrelevant as evidence of the witness's veracity or lack thereof. Whether the marijuana was found in one place or another, the offense of possessing 80 pounds was equally serious. But the fact that it was found in his home enhanced the similarity between the earlier offense and the current charge, and therefore increased the prejudice in like measure. Indeed, the prosecutor even asked whether the 80 pounds which he had possessed in June had been there in January when the cocaine transaction was allegedly negotiated. The prosecutor's emphasis on the similarity between the two offenses was plainly intended to convince the jury of appellant's guilt as opposed to his lack of veracity. ¹⁶

In addition to the improper inquiry about details of the prior offense, some of the prosecutor's questions implied that appellant testified falsely about the offense even though the prosecutor knew, or certainly should have known, that his testimony was accurate. Thus, he asked if the offense was not possession with intent to distribute, rather than simple possession, and later, whether the defendant was not mistaken in his description of the offense. It is true, of course,...