U.S. v. Nelson
| Decision Date | 23 January 1976 |
| Docket Number | No. 75--1393,75--1393 |
| Citation | 529 F.2d 40 |
| Parties | UNITED STATES of America, Appellee, v. James G. NELSON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas M. Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before HEANEY, BRIGHT and HENLEY, Circuit Judges.
Appealing from convictions by a jury on two counts of distributing controlled narcotics (heroin) in violation of 21 U.S.C. § 841(a)(1), appellant James G. Nelson, a black person, raises three contentions: 1) that the trial court erred in ruling that if Nelson testified the prosecution could impeach his testimony by evidence of a prior 1965 conviction for robbery; 2) that the trial court erred in denying a mistrial after the prosecutor peremptorily struck all three black persons on the jury panel; and 3) that the trial court erred in permitting a female informer-witness for the prosecution to decline on fifth amendment grounds to answer questions on cross-examination relating to whether she used heroin or engaged in prostitution while she served as an informer. We find no prejudicial error on the record submitted in this case and we sustain the conviction.
We consider these contentions within the context of this case. The prosecution presented evidence that Nelson sold heroin to Robert F. Pfliegier, an agent of the Drug Enforcement Administration, on two separate occasions during the fall of 1973, and that Dorothy Goff, then operating as a government informant, acted as an intermediary in introducing the parties and assisting in arrangements for the sale. Nelson, testifying on his own behalf, recited a version of events which would make him only a participant in a scheme concocted by Dorothy Goff to sell Pfliegier a harmless substance which would be represented as heroin. The jury, believing the prosecution evidence, brought in a guilty verdict on both counts.
Nelson, in a motion made prior to trial, sought to suppress any evidence of two prior convictions, one in 1954 for theft from an interstate shipment, and one in 1965 for robbery of a federal credit union. The district court ruled that evidence of the 1954 conviction should be excluded, but that evidence of the 1965 conviction would be admitted for impeachment should the accused take the stand. In light of this ruling, Nelson's counsel elicited the fact of this 1965 conviction upon direct examination when Nelson took the stand in his own defense.
This claim of error by Nelson is wholly without merit for it is well established that an accused who offers himself as a witness may be cross-examined with respect to prior felony convictions, subject to the discretion of the district court. United States v. Carter, 844 F.2d 528, No. 75--1273 (8th Cir., Dec. 10, 1975). We also note that the provisions of the Federal Rules of Evidence, Rule 609(b), effective July 1, 1975, subsequent to appellant's trial, permit impeachment by use of a felony conviction less than 10 years old. The felony conviction in question here falls within the 10-year limitation, thus the court's ruling was in accord with the then proposed Federal Rules of Evidence. The court refused to allow the Government to utilize the more than 20 year old theft conviction.
Nelson's challenge to the all-white makeup of the jury focuses on the conduct of the prosecutor in exercising his peremptory challenges to remove the three black persons from the jury panel. In moving for mistrial before the district court, Nelson's counsel contended that the striking of all three black persons evidenced 'a systematic exclusion of black persons from cases in which the criminal defendant is black * * *.'
In resisting the motion the prosecutor stated:
The Government does have reason which I do not choose to put into the record for making the strikes, and I assure the court that I do not strike people from the jury because they are black.
The district judge denied the motion. The correctness of the ruling is not open to serious question. Although this court, consistent with the language contained in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), holds that a federal prosecutor may not through the use of peremptory strikes, systematically and intentionally bar black persons from serving on juries in criminal trials, such discriminatory conduct is not established by a showing that the prosecutor struck all of the black persons available on any particular jury panel. United States v. Neal, 527 F.2d 63 (8th Cir. 1975); United States v. Thompson, 518 F.2d 534, 535 (8th Cir. 1975); United States v. Delay, 500 F.2d 1360, 1365--66 (8th Cir. 1974); Little v. United States, 490 F.2d 686, 687--88 (8th Cir.), cert. denied,419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); United States v. Pollard,483 F.2d 929, 930 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974); Maxwell v. Stephens, 348 F.2d 325, 331--32 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965). See United States v. Carter, 528 F.2d 844, No. 75--1273 (8th Cir., Dec. 10, 1975) (rule extensively discussed).
Appellant on oral argument presses a broader claim that prosecutors in the Western District of Missouri regularly and systematically bar black persons from serving as jurors in trials of criminal cases against black defendants. Appellant asks us to take notice of statistical evidence presented in another case recently appealed to this court from the Western District of Missouri, United States v. Carter, supra.
In that case, Carter, also a black person convicted on narcotics charges, objected to the prosecutor striking all five black persons on the jury panel. As evidence of an alleged systematic exclusion of black persons from juries selected in the trial of black persons in the Western District of Missouri, Carter introduced evidence that in 15 criminal cases tried during 1974 against black defendants, the prosecutors by peremptory challenge excluded 81 percent of the black persons available to serve on petit juries, and that in seven of the fifteen cases (which include two trials of Carter) the Government by peremptory challenges excluded all available black...
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