United States v. Senior, 12622.

• Decision Date: 08 February 1960
• Docket Number: No. 12622.,12622.
• Citation: 274 F.2d 613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmo SENIOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

274 F.2d 613 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Elmo SENIOR, Defendant-Appellant.

No. 12622.

United States Court of Appeals Seventh Circuit.

February 8, 1960.

Myer H. Gladstone, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Chicago, Ill., Glenn R. Heyman, John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before SCHNACKENBERG and CASTLE, Circuit Judges, and MERCER, District Judge.

SCHNACKENBERG, Circuit Judge.

Elmo Senior, defendant, has appealed from a judgment of the district court, based on the verdict of a jury, finding him guilty as charged in an indictment alleging violations of § 4705(a), Internal Revenue Code of 1954, 26 U.S.C.A. § 4705(a), and 21 U.S.C.A. § 174, as amended by the Narcotics Control Act of 1956, and 18 U.S.C.A. § 2. Terms of imprisonment and fines were imposed.

1. Defendant contends that the verdict and the judgment are manifestly against the evidence. With this contention in mind, we have examined the evidence in detail and find that it supports the verdict of the jury and the judgment thereon.

2. At the close of the government's case, defendant made an oral motion that the government be directed to elect, "with respect to counts 2 and 6, as to which of the acts charged therein they will seek conviction". The court denied the motion.

Defendant points out that he, with one Kim Laurie, was named in counts 1, 2, 5 and 6, and that count 7 charged both with conspiracy to sell, conceal and facilitate the transportation and concealment of certain narcotics. He also states that in count 3 Laurie was charged with the sale of heroin to Arthur Lewis on January 15, 1959, and in count 4, she was charged with concealing, selling and facilitating the transportation and concealment of heroin on January 15, 1959. He states that he was not named in either of counts 3 or 4.

Defendant also moved to dismiss the indictment, or, in the alternative, to compel the government to elect the counts on which it would seek a conviction, which motion was denied.

There was no misjoinder of defendants or offenses. 18 U.S.C.A. rule 8(b).

Defendant made no motion for severance. Kleven v. United States, 8 Cir., 240 F.2d 270.

There was no error in the court's rulings on the aforesaid motions which defendant did make.

3. Defendant called Kim Laurie as his witness. At the conclusion of her cross-examination, the prosecuting attorney asked her:

"Q. Are you the same Kim Laurie that has been convicted in 59 CR 79 in the Northern District of Illinois? A. Yes, I am the same Kim Laurie.

"Mr. Gladstone: That is this case?

"Mr. Heyman: That is this case.

"Mr. Gladstone: Yes.

"By Mr. Heyman:

"Q. And you were sentenced to five years? A. Yes.

"Mr. Heyman: I have no further questions."

Before us, defendant urges with great insistence that serious error resulted from the following proceedings which thereupon took place:

"The Court: In that case, Miss Laurie, — was that in this courtroom?

"The Witness: Yes.

"The Court: One of the crimes of which you were convicted was conspiring, combining, confederating and agreeing together, that is to say, you and Elmo Senior, to unlawfully and fraudulently sell, conceal and facilitate the transportation and concealment after unlawful importation into the United States of various quantities of heroin hydrochloride and cocaine which are narcotic drugs, knowing the same to have been so unlawfully imported to the United States contrary to law in violation of Section 174, Title 21 of the U.S.C.A. as amended by the Narcotic Control Act of 1956.

"You were convicted of that charge?

"Mr. Gladstone: Just one moment. I am objecting to that question by the Court, your Honor.

"The Court: You will have to use a better tone to me.

"Mr. Gladstone: Beg pardon?

"The Court: Don\'t `Just one moment\' this Court, Mr. Gladstone.

"Mr. Gladstone: That was `One moment\' to her, not to you, your Honor. I didn\'t want her to answer before I —

"The Court: I will determine whether she answers, sir.

"Mr. Gladstone: But I am objecting to the question.

"The Court: This is your witness. You are not running the courtroom.

"Mr. Gladstone: I am not trying to, your Honor. I object to that statement. I wouldn\'t try to.

"The Court: If you want to make an objection, you make it.

"Mr. Gladstone: That is all I said, I am objecting to that question.

"The Court: I will overrule your objection.

"Mr. Gladstone: All right.

"The Court: You may answer. Is that the crime, among others, that you were convicted of in this court-room?

"The Witness: Yes, before you.

"The Court: All right, you have answered the question."

Thereupon counsel for defendant made a motion to withdraw a juror and declare a mistrial "because of your Honor's question and secondly because of your Honor's criticism of me". The court denied the motion.

In this court, after citing United States v. Carmel, 7 Cir., 267 F.2d 345, counsel for defendant argues that the question asked of Miss Laurie was highly prejudicial to the defendant and, in itself, may have influenced the jury in arriving at its verdict of guilty. Reliance is placed upon Leroy v. Government of Canal Zone, 5 Cir., 81 F.2d 914, United States v. Toner, 3 Cir., 173 F.2d 140, and Gambino v. United States, 3 Cir., 108 F.2d 140.

We agree with counsel for the government that it was proper for the government to show that the witness Laurie had been convicted of a felony. This is a well-established method of impeachment, long known to the law. It was sufficiently done by the answers elicited by the questions put to the witness Laurie by the prosecuting attorney. However, the court went further and, as the government in its brief points out, we are then brought to the question of whether it was error for the judge to "expound" on this prior conviction. As further stated in the government's brief, the trial court "expatiated" on Miss Laurie's prior conviction, which she had already admitted in response to the questions of government counsel. Why the court saw fit to go into the details of the indictment to which she had pleaded guilty is not apparent. Informing the jury that she had been convicted in the same courtroom upon an indictment in which she was named with the defendant now on trial before the jury, not only did not strengthen the proof for impeachment, but it came dangerously near to misleading the jury into confusing the question of guilt of the defendant on trial with the guilt of the witness herself. If the question of the guilt of the defendant Senior were close, we would feel required to reverse the conviction and remand for a new trial. However, in view of the evidence in the record, we are of the opinion that the error of the court in this respect was not prejudicial and did not affect the jury's disposition of the case.

We have examined the three cases above mentioned relied on by defendant and find that they are all distinguishable upon the facts.

4. Defendant insists that the district court erred when it instructed the jury as follows:

"I think we all know by now that this is a so-called criminal case and the law in such cases is that the defendant comes into court presumed to be innocent and that presumption protects him until and unless such time, if such time shall come, when you shall believe from the evidence in the case beyond a reasonable doubt that the defendant is guilty as charged in the indictment or some count thereof."

Defendant points out that the matter which we have italicized makes this instruction erroneous and that such an instruction was condemned in Lurding v. United States, 6 Cir., 179 F.2d 419, 422. He argues that under this instruction the jurors...