U.S. v. Kemper

• Decision Date: 30 January 1975
• Docket Number: No. 74-1020,74-1020
• Citation: 503 F.2d 327
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy KEMPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 327

503 F.2d 327

UNITED STATES of America, Plaintiff-Appellee, v. Tommy KEMPER, Defendant-Appellant.

No. 74-1020.

United States Court of Appeals, Sixth Circuit.

Argued April 17, 1974.

Decided Sept. 20, 1974, Certiorari Denied Jan. 30, 1975, See

95 S.Ct. 810.

Arthur L. Brooks, Lexington, Ky., on brief, for defendant-appellant.

Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., on brief, for plaintiff-appellee; Kenneth P. Glover, Office of Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Cincinnati, Ohio, of counsel.

Before McCREE, MILLER and ENGEL, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal by the defendant, Tommy Kemper, From a conviction on Count 2 of a three count indictment charging him with violation of 18 U.S.C. 922(g). (Transporting a firearm in interstate commerce after having been convicted of a felony.) ¹

The defendant raises two issues on appeal: (1) whether the district court erred in refusing to strike from the indictment language descriptive of the nature of the felony for which he had been convicted despite his willingness to stipulate the prior conviction in the statutory language; and (2) whether the district court erred in refusing to grant a motion to suppress the introduction in evidence of a firearm seized by the police from defendant's vehicle.

The indictment was worded as follows:

COUNT 1

(T. 18 Appendix, Sec. 1202(a)(1), U.S.C.)

THE GRAND JURY CHARGES: That on or about the 30th day of April, 1973, in Madison County, in the Eastern District of Kentucky TOMMY KEMPER having been convicted of a felony by a court of the United States, that is, the United States District Court for the Southern District of California, on or about the 29th day of November, 1943, of the felony crime of interstate transportation of a female for the purpose of having her practice prostitution and for other immoral purposes, received, possessed, and transported in commerce and affecting commerce a firearm, that is, a Rossi .32 caliber revolver, in violation of Title 18 Appendix, Section 1202(a)(1), United States Code.

COUNT 2

(T. 18 Sec. 922(g), U.S.C.)

THE GRAND JURY FURTHER CHARGES: That on or about the 30th day of April, 1973, TOMMY KEMPER having been convicted of a crime punishable by imprisonment for a term exceeding one year, that is, the interstate transportation of a female for the purpose of having her practice prostitution and for other immoral purposes on or about the 29th day of November, 1943, by the United States District Court for the Southern District of California, did transport a firearm, that is, a Rossi .32 caliber revolver, from Valdosta, in the State of Georgia, to Madison County, in the Eastern District of Kentucky.

COUNT 3

(T. 18 Sec. 922(i), U.S.C.)

THE GRAND JURY FURTHER CHARGES: That on or about the 30th day of April, 1973, TOMMY KEMPER did unlawfully transport a stolen firearm, that is, a Rossi .32 caliber revolver, in interstate commerce, from Valdosta, in the State of Georgia, to Madison County, in the Eastern District of Kentucky, knowing and having reasonable cause to believe that the firearm was stolen.

Because of the similarity between Counts 1 and 2, the government was required to elect between them; upon the prosecution's election to proceed on Count 2, Count 1 was dismissed. The trial court denied the defendant's motion to strike as surplusage the language in Count 2 describing the nature of the defendant's prior felony conviction. It is urged on appeal that this language should not have been placed before the jury because it was prejudicial in the eyes of the jurors and was not required to define the statutory offense under 18 U.S.C. 922(g).

Rule 7(d) of the Federal Rules of Criminal Procedure makes the striking of surplusage permissive but not mandatory. ² The Rule is properly invoked when an indictment contains nonessential allegations that could prejudicially impress the jurors. The striking of language from an indictment as being surplusage addresses itself to the sound discretion of the district court. Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962). The granting of such a motion is proper, however, only where the words stricken are not essential to the charge.

In the case before us, the material which was requested to be stricken was not a necessary element of the statutory offense in light of the defendant's willingness to stipulate to the prior conviction itself. ³ It should suffice for the indictment to contain language simply stating that defendant had previously been convicted in a specified court of a crime punishable by imprisonment for a term exceeding one year, omitting language descriptive of the offense.

Although the standard under Rule 7(d) has been strictly construed against striking surplusage, ⁴ a serious question would arise on the facts presented here, in light of the offer to stipulate, that the district court abused its discretion in denying the motion to strike the objectionable details. The particular factual circumstances attending the prior conviction and those of the present case would appear to make the recitation to the jury in the indictment of the detailed description of the prior conviction peculiarly prejudicial. Defendant was previously convicted of the 'interstate transportation of a female for the purpose of having her practice prostitution and other immoral purposes.' In the present case the defendant's companion accused him of detaining her against her will by threatening her with a gun. The basis for defendant's defense against the charge of interstate transportation of a weapon was that he did not know that the gun was in the vehicle until he saw it in the possession of his companion who, he claims, accompanied him of her own free will. As this testimony was essentially conflicting, the jury's verdict was necessarily based on a weighing of the credibility of the defendant and his companion. It cannot be doubted that information that defendant had previously been convicted of transporting a woman in interstate commerce for purposes of prostitution, in the present context, would weigh heavily against the defendant in resolving such credibility issue. ⁵

Nevertheless, we are convinced that the refusal to strike from the indictment the challenged language, if error, did not affect the substantial rights of the defendant and therefore is not ground for reversal. Rule 53 F.R.Cr.P.; Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). This is true because the jury was properly made fully aware of both the fact and the nature of the prior conviction when the defendant was cross-examined with reference to it for purposes of impeachment. Defendant does not contend that he would have exercised his constitutional right not to testify if the court had granted his motion to strike.

The impeachment of a defendant by eliciting prior felony convictions is proper. The only limitation on such impeachment is that the prior conviction must be for a felony or crime involving moral turpitude. Henderson v. United States, 202 F.2d 400 (6th Cir. 1953) rehearing denied204 F.2d 126. The fact that the prior conviction in this case was 30 years old would only go to its weight not to its admissibility. United States v. Bell, 351 F.2d 868 (6th Cir. 1965). It is proper for a trial judge in his sound discretion to prohibit detailed consideration upon cross-examination of a defendant's involvement in other crimes. United States v. Marchesani, 457 F.2d 1291, 1297 (6th Cir. 1972). Yet we do not find that the trial judge in this case abused his discretion in allowing information as to the fact and nature of the prior felony conviction (the same prior conviction described in Count 2 of the indictment) to be placed before the jury for impeachment purposes. The court carefully instructed the jury that the prior conviction could be considered only for impeachment and not as substantive evidence. ⁶

Defendant's second charge of error lies in the district court's denial of his motion to suppress evidence allegedly obtained by an unreasonable search and seizure in violation of the fourth amendment.

On April 30, 1973, two officers of the Berea, Kentucky police department, received a radio message from the Kentucky state police to be on the lookout for a blue Ford traveling north on Interstate 75, bearing Georgia license tag, and having four occupants. The communication also indicated that there was a woman passenger in the vehicle, Miriam Johnson, who was being detained against her will, possibly at gunpoint. The officers set up a surveillance on Interstate 75 and around 4:30 A.M. observed defendant's vehicle matching the radio description traveling north on Interstate 75. It was stopped, and although there were only two occupants instead of four, the name given by the woman passenger corresponded with the radio report.

Upon being stopped, defendant began to walk to the patrol car and was ordered to stop by one of the officers. He was apparently patted down for a weapon, his driver's license examined, and he was asked to have a seat in the back seat of the patrol car. It is in dispute whether defendant Kemper was ever formally arrested at this time, but it is clear that he was to some extent in a custodial situation.

The officers found Mrs. Johnson in a distressed state and reported that she stated 'he is going to kill me.' She informed the officers that Kemper had a gun in the trunk of the car. The then contacted the state police by radio and verified the description of the car and the name of the female passenger.

The keys to the trunk were obtained by one of the officers from the ignition, the trunk was searched, and a pistol was found. ⁷ The officers had no search warrant. Kemper, at the request of one of the officers, and accompanied by him, drove his car to Berea. He was later charged with the offenses set forth in the indictment. Apparently the Johnson...