United States v. Williams, 73-1150

• Decision Date: 24 July 1973
• Docket Number: 73-1151.,No. 73-1150,73-1150
• Citation: 484 F.2d 176
• Parties: UNITED STATES of America, Appellee, v. Evan WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Dennis SWANSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.2d 176 (1973)

UNITED STATES of America, Appellee, v. Evan WILLIAMS, Appellant.

UNITED STATES of America, Appellee, v. Dennis SWANSON, Appellant.

Nos. 73-1150, 73-1151.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1973.

Decided July 24, 1973.

Certiorari Denied December 3, 1973.

J. William Gallup, and Edward F. Fogarty, Omaha, Neb., for appellants.

Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before Mr. Justice CLARK,^* HEANEY and BRIGHT, Circuit Judges.

Certiorari Denied December 3, 1973. See 94 S.Ct. 581.

PER CURIAM:

Appellants Swanson and Williams were convicted of aiding and abetting in the distribution of heroin. On appeal both appellants argue that they were denied an impartial jury in that it was the seventh consecutive jury that had been selected from the same jury panel to decide drug cases involving the same government witnesses. In addition, Swanson contends the District Court erred in refusing to submit any cautionary instructions regarding "the various considerations a jury ought to give before crediting an extra judicial statement." Williams also complains that the court erred in permitting the prosecutor to elicit testimony that Williams had been read Miranda warnings. We reject each of these claims and affirm the convictions.

Appellants' trial began on January 17, 1973. Prior to selection of the jury on that day, appellants and their counsel met in the trial judge's chambers to discuss certain aspects of the trial. It was first agreed that the defendants would have only ten peremptory challenges together rather than ten such challenges each. At this point Williams' counsel moved for a continuance to a subsequent jury term because some sixteen of the thirty-two jurors, including alternates, on the panel had previously served on one or more of the juries that had heard and decided six consecutive drug cases that term, at which substantially the same government witnesses who were to testify against Swanson and Williams had given testimony. Four of the trials resulted in verdicts of guilty, one ended in a verdict of not guilty and one resulted in dismissal. The District Court overruled the motion as premature; no showing of prejudice had been made at that time. The Court subsequently conducted a voir dire and asked the following questions on the subject of the prospective jurors' prior exposure to the same government witnesses:

"The mere fact that you served on those juries, heard that evidence, is there anything about that that would make it difficult for you to keep a fair, open and impartial mind?

"You listen to the evidence in this case. Every case is different.

"Would anyone have any difficulty, even though some of the witnesses might be the same witnesses put on by the Government that you heard in other cases? Would it make it difficult for you?"

No juror indicated that he had formed an opinion or that he could not be impartial. Neither Swanson nor Williams challenged any member of the panel for cause; nor did either interrogate the panel or any member of it as to any prejudice arising from their sitting in other drug cases or hearing the same witnesses; nor did either appellant move for a continuance or renew the motion Williams had made earlier in chambers. There is no indication that any juror was actually biased. Indeed, Swanson and Williams not only failed to inquire of the panel as to prejudice resulting from the other trials but they forewent any challenges for cause and gave up ten peremptory challenges between them. This action hardly indicates that there is any substance to the prejudice claim. At the most the challenge must rest entirely on a per se theory of implied bias. This Court rejected a like argument in Johnson v. United States, 484 F.2d 309 (8th Cir. 1973), and prior federal cases are uniformly to the same effect. United States v. Haynes, 398 F.2d 980 (2d Cir. 1968); Cwach v. United States, 212 F.2d 520 (8th Cir. 1954); Haussener v. United States, 4 F.2d 884 (8th Cir. 1925). See Casias v. United States, 315 F.2d 614 (10th Cir. 1963). As this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable. Still...