United States v. Pollard

• Decision Date: 09 August 1973
• Docket Number: No. 73-1006.,73-1006.
• Citation: 483 F.2d 929
• Parties: UNITED STATES of America, Appellee, v. Joseph POLLARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

483 F.2d 929 (1973)

UNITED STATES of America, Appellee, v. Joseph POLLARD, Appellant.

No. 73-1006.

United States Court of Appeals, Eighth Circuit.

Submitted May 17, 1973.

Decided August 9, 1973.

Rehearing Denied August 31, 1973.

Certiorari Denied January 7, 1974.

Leonard J. Frankel, Clayton, Mo., for appellant.

Daniel Bartlett, Jr., U. S. Atty., Jerry J. Murphy, Asst. U. S. Atty., Frederick J. Dana, Sp. Atty., U. S. Dept. of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.

Certiorari Denied January 7, 1974. See 94 S.Ct. 882.

MATTHES, Senior Circuit Judge.

Appellant was indicted in three counts for distributing heroin on August 28, 1972¹ (Count I), on August 29 (Count II), and on August 30 (Count III), all in violation of 21 U.S.C. § 841(a) (1). He was tried, found guilty as charged, and is here by appeal from the judgment of conviction.

The facts, although in dispute, are relatively simple. On August 28, through the intermediary of Richard Armstrong, a paid government informant, Dennis Harker, a special agent of the Bureau of Narcotics and Dangerous Drugs, and Daniel Swan, a St. Louis police officer assigned to the Drug Abuse Law Enforcement Agency (DALE), both acting under cover, purchased 4.55 grams of heroin from appellant at a cost of $300. On the following two days, again by the arrangement of Armstrong and in his presence, similar transactions took place involving 41.05 grams of heroin worth $5000. At the conclusion of the third transaction appellant was arrested and taken to the DALE office where, after having been properly warned of his rights, he stated that he had obtained the heroin on all three occasions from Edward Pruitt and that he had given Pruitt the proceeds of the sales.

At the trial, appellant contended that he had been entrapped by Armstrong. According to appellant, who admitted being a heroin addict, Armstrong had offered him a fix and $50 if appellant would help Armstrong test heroin. Appellant's subsequent participation in the transactions for which he was indicted was allegedly at the direction of Armstrong.

We find no substance in any of appellant's contentions of error and affirm.

I.

At the outset of the trial, appellant made an oral motion to strike the jury panel because it contained only four blacks. The motion was denied. Appellant renewed the motion at the close of voir dire on the ground that all four black veniremen had been peremptorily challenged by the government. Again, the motion was denied. Appellant submits that the failure to provide a jury panel more representative of his race, coupled with the peremptory removal by the government of those blacks that were present, established a prima facie showing of invidious discrimination in the selection of the jury.

Pursuant to 28 U.S.C. § 1863, the Eastern District of Missouri, like all other districts in the Eighth Circuit, has adopted a plan for random jury selection. The plan, which has been approved in accordance with the provisions of § 1863, is expressly designed to prevent discriminatory practices in the selection of jury panels. Fortuitously, the venire in the present case contained only four blacks. That circumstance, however, does not warrant the striking of the panel. As we noted in United States v. Williams, 421 F.2d 529, 531 (8th Cir. 1970):

"Appellant was not constitutionally entitled to have either a Negro or one of his `peers\' on his petit jury panel; rather, he was constitutionally entitled to a jury array which had been selected from a cross-section of the eligible persons in the community at large without systematic and intentional exclusion or discrimination as to racial, religious, political, economic, geographical or social status."

See Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Olson, 473 F. 2d 686, 688 (8th Cir. 1973).

Appellant has made no effort to attack the jury selection process itself, and, in our view, could not have prevailed in any such attempt.

Nor does the fact that the government peremptorily challenged all four black veniremen support a finding of unlawful discrimination. As was said by Mr. Justice White in Swain v. Alabama, supra, 380 U.S. at 222, 85 S.Ct. at 837:

"The presumption in any particular case must be that the prosecutor is using the State\'s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it."

See United States v. Pearson, 448 F.2d 1207, 1214-1215 (5th Cir. 1971); Maxwell v. Stephens, 348 F.2d 325, 331-332 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965).

The Supreme Court in Swain concluded, however, that the presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor's systematic exclusion of blacks from petit juries over an extended period of time. 380 U.S. at 224, 86 S.Ct. 387. See United States v. Pearson, supra. No such proof has been offered in the present case.

II.

Pursuant to an order of the trial court, the government informed appellant prior to trial of Richard Armstrong's name and address. Thereafter appellant attempted to locate Armstrong in order to subpoena him to appear at the trial as a witness for the defense. When all efforts proved unsuccessful, appellant asked the court for an order requiring the government to produce Armstrong. The denial of that request is the subject of appellant's second claim of error.

Both in his brief and on oral argument to this court, appellant suggested that the government could have produced Armstrong if it had been in its best interests to do so. The government, on the other hand, stated that it had no knowledge of Armstrong's whereabouts, and that since Armstrong and appellant had grown up together, Armstrong was equally available to both sides.

After submission of the case to us on May 17, 1973, we resolved that the government should have been compelled to demonstrate its inability through reasonable efforts to produce Armstrong.² In so deciding, we adopted the reasoning of Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965), in which it was said:

"Since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.

* * * * * *

If the informant is available for hire, he should be available to come and testify. . . . We think whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge."

354 F.2d at 13.

In accordance with the teachings of Velarde, we issued an order, filed May 18, 1973, 479 F.2d 310, 8 Cir., remanding the cause

"to the trial court for the limited purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce Armstrong and also, if such be the case, that the Government did not take steps to see to it that Armstrong would be or become unavailable as a witness. The burden of proving these things should be on the Government."

479 F.2d at 511.

Pursuant to our order, the trial judge held a plenary hearing on June 1, 1973. The testimony of government witnesses established that Armstrong had received at least one threat on his life as a result of his testimony as a government witness in a prior narcotics case in which he had participated as an informant. Subsequent to the close of that case, Armstrong disappeared and efforts to locate him were fruitless. Agent Harker testified that he had attempted to subpoena Armstrong for the hearing, and had been unsuccessful, although he had talked to him on the telephone. Following the hearing, the trial court...