United States v. Williams, 73-1014.

• Decision Date: 16 August 1973
• Docket Number: No. 73-1014.,73-1014.
• Citation: 484 F.2d 428
• Parties: UNITED STATES of America, Appellee, v. Bobby Lee WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.2d 428 (1973)

UNITED STATES of America, Appellee, v. Bobby Lee WILLIAMS, Appellant.

No. 73-1014.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1973.

Decided August 16, 1973.

Daniel P. Reardon, Jr., St. Louis, Mo., for appellant.

John A. Newton, St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and ROSS, Circuit Judge.

ROSS, Circuit Judge.

This is an appeal from the conviction of Bobby Lee Williams for making a false statement on an application to purchase a firearm in violation of 18 U.S.C. §§ 922(a) (6) and 924(a). We reverse and remand for a new trial.

On or about September 17, 1970, Williams was convicted in Missouri State Court of carrying a concealed weapon. On October 21, 1970, he was sentenced to one year in county jail on said conviction although under Missouri law the crime charged was a felony and the sentence could have exceeded one year. Williams appealed the conviction to the Missouri Supreme Court.

On May 25, 1971, Williams signed the firearms transaction form in question which indicated that Williams answered "no" to a question as to whether or not he had theretofore been convicted "of a crime punishable by imprisonment for a term exceeding one year?" In this trial Williams claimed he told the salesman that he "had been convicted here in Cape Girardeau, Missouri, and I was sentenced to one year . . . and the case was being appealed . . ." The salesman denied that Williams had said anything at all about the previous conviction.

On November 1, 1971, a federal jury convicted Williams of making a false statement as charged by the aforesaid federal indictment and Williams was sentenced to a five-year term. The conviction was appealed to this Court. We reversed the conviction and remanded for a new trial on the grounds that prejudicial error occurred when the United States Attorney questioned a witness about taking the fifth amendment before the grand jury. United States v. Williams, 464 F.2d 927 (8th Cir. 1972).

On June 12, 1972, the Missouri Supreme Court reversed Williams' earlier state court conviction of carrying a concealed weapon and ordered that Williams be discharged. State of Missouri v. Williams, 481 S.W.2d 1, 3 (Mo.1972).

On November 8, 1972, Williams was retried in federal court on the indictment charging a false statement made in the purchase of a firearm, and on November 9, 1972, he was again found guilty. This appeal was then taken.

Immediately prior to this last trial, in a conference in the chambers of the trial court, the attorneys and the trial court discussed the question of whether or not evidence could be received concerning the state court conviction, and if so, whether or not the reversal of that conviction by the Missouri Supreme Court could be shown by Williams. The trial court determined that the state court conviction could be shown by the Government but that the reversal of that conviction by the Missouri Supreme Court on appeal could not be shown by Williams. The trial court permitted an offer of proof of the reversal in the form of a certified copy of the judgment of the Missouri Supreme Court, but sustained the Government's objection thereto on the grounds that it was irrelevant and ordered the attorneys not to mention or refer to the reversal of the conviction during trial.

Counsel for Williams claimed that the reversal should be admitted for two reasons: First, he claimed that since a prior conviction of a felony was an essential element of the crime charged, that the reversal of the state court conviction required a dismissal of the false statement indictment. Secondly, he claimed that it was prejudicial from an evidentiary standpoint "in branding this man as a convict when he isn't in fact one — ". Williams' counsel did not specifically refer to the question of the effect of showing the conviction on the credibility of Williams as a witness and did not raise that specific question in his brief. He did raise it in this Court on oral argument.

At the trial, as indicated heretofore, there was a direct conflict between the testimony of the salesman and Williams, thereby directly placing the credibility of Williams as a witness in question. Indeed the trial court indicated that "the only question in this case is whether or not this jury is going to believe he lied about his conviction . . ."

We turn first to Williams' assertion that the trial court erred in permitting the Government to allege and prove the prior state court conviction after the conviction had been reversed by the Missouri Supreme Court. The Ninth Circuit has considered this argument and rejected it in a well-reasoned opinion in United States v. Liles, 432 F.2d 18 (9th Cir. 1970). In that case the prior conviction of Liles had been reversed just before his trial on the federal false statement charge, but the word of the reversal did not reach Liles until after he had been tried and convicted of the federal charge. Post trial motions for a new trial were overruled. The Ninth Circuit held that Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 "speaks only of conviction of a felony. It contains no requirement that the conviction be finally upheld on appeal." Id. at 20. It specifically held that Liles' possession of a gun "was unlawful for one of his status at the time he possessed it. It is not made lawful by the subsequent reversal of his conviction." Id. at 21. We agree with the rationale of this holding and apply it to this case. See also DePugh v. United States, 393 F.2d 367 (8th Cir. 1968).

The introduction of the prior state court conviction had the dual effect of showing an essential element of the crime of making the false statement, and also tending to impeach the credibility of Williams as a witness. Having already held that the conviction was admissible to show an essential element of the crime, the sole remaining question is whether or not the fact of the reversal of the conviction should have been admitted, under proper instructions, to mitigate the damage thus done to Williams' credibility as a witness. We conclude that it should have been admitted for that limited purpose.

In his direct examination Williams stated that he had advised the salesman that he had not served any time on the state court sentence "because the case was being appealed . . ." Following the trial court's instructions, he did not refer to the reversal of the conviction. On cross-examination the Government attorney asked Williams at least four questions about his testimony concerning his conversation with the salesman about the appeal. This was an obvious effort to impeach his testimony by pointing up the fact that during his first trial on the false statement charge, Williams did not testify that he told the salesman about the appeal. The effect of this testimony is speculative, but certainly the jury must have wondered about the outcome of the appeal, and it could have concluded that the failure of Williams to mention the outcome was indicative that the conviction had been affirmed.

It is well settled that in a trial a witness' acts of misconduct are not admissible to impeach his credibility unless the acts resulted in the obtaining of a conviction. Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948). When that witness is the defendant in a criminal trial, we have held the same rule applicable. Schwab v. United States, 327 F.2d 11, 16 (8th Cir. 1964).

We have been unable to locate cases which articulate the impeaching effect of an already reversed conviction. However, the result we reach is suggested by a line of cases dealing with the use for impeachment purposes of a conviction pending on appeal.

A review of the authorities in this area discloses that the Seventh Circuit was one of the first to address this particular question. In United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir.), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949), the court held that the fact that the defendant's conviction was pending on appeal, as brought out in the trial court, did not render the inquiry about the conviction on cross-examination improper. In so ruling, the court said:

". . . Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding said conviction solely for the purpose of testing credibility."

Although generally cited for the proposition that the defendant's credibility may be impugned by a conviction even though an appeal is pending, the passage suggests that after reversal, the trial court judgment cannot be used at all for the impeachment.

The Ninth Circuit has repeatedly held that until the judgment of the lower court is reversed, a conviction will stand and the defendant may be questioned regarding the conviction for purposes of impeachment. United States v. Allen, 457 F.2d 1361, 1363 (9th Cir. 1972); United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956). It has also held that where a conviction was found on the previous day, a question upon prior conviction was proper even though the judgment of conviction was not entered until later. United States v. Canaday, 466 F.2d 1191, 1193 (9th Cir. 1972).

The Seventh and Ninth Circuits follow the most restrictive view of the treatment of the situation involving a conviction pending on appeal. As is evident, even that view supports the result in this case that a reversed conviction may not be used for impeachment without at least showing the reversal. Other circuits, although they have not addressed the instant circumstances, espouse a view of the use for impeachment purposes of convictions pending on appeal, that would indicate...