Fletcher v. United States

¶20HAMLIN, Circuit Judge.

¶21In February, 1962, in the United States District Court for the Western District of Washington appellant was convicted after a jury trial of a violation of the narcotics laws and was sentenced to a term of imprisonment. His conviction was affirmed by the United States Court of Appeals, Ninth Circuit, in January, 1963, and his later application for a writ of certiorari was denied by the United States Supreme Court.

¶22In June, 1963, he filed a petition (and later an amended petition) in the United States District Court for the Western District of Washington under 28 U.S.C. § 2255, asking that his sentence be set aside and he be released from custody. These petitions were denied without a hearing by the district court and thereafter appellant filed a timely appeal to this court from said denial. Jurisdiction here is based upon 28 U.S.C. § 1291.

¶23The grounds of appellant’s petition and amended petition are (1) that there were three jurors in his trial who had also served as jurors in another and unrelated criminal case against another defendant about three weeks prior to his trial, and that in this prior trial a witness had referred to appellant as a narcotics peddler; and (2) that the testimony of the informer in appellant’s trial was inherently improbable and therefore the prosecuting attorney must have known of its claimed falsity.

¶24As to the first point, the record shows that on February 1, 1962, a criminal case entitled United States v. Madison Wilson was heard in the same district court but before a different district judge. The defendant therein was *585charged with a violation of the narcotics laws. There were among the twelve jurors who decided the Wilson case three jurors who on February 21, 1962, were members of the jury which convicted the appellant of a violation of the narcotics laws. During the Wilson case a government witness on cross-examination by Wilson’s counsel was asked the questions and gave the answers which are set forth in the margin.1 No other reference to appellant in the Wilson trial was shown. One of the two prosecutors in the Wilson case was also one of the prosecutors in appellant’s case,

¶25The record shows that in appellant’s case members of the prospective jury panel were examined at length prior to their selection as jurors. We have set out in the margin a portion of this examination and certain details of that proceeding.2

¶26*586As shown by the record, the district judge thoroughly examined the jury upon its voir dire and thoroughly explained the proper attitude the jury *587should take. During this examination it was disclosed that some jurors had served in prior criminal eases and in narcotic cases. Counsel for defendant made no attempt to examine the jurors on this subject and he suggested no questions to be asked by the court thereon.

¶27The few questions in the Wilson case referring to appellant were a minute part of a 280-page transcript of the proceedings therein. The reference to appellant therein, in any event, even if recalled by any of the jurors was somewhat similar to a statement in a newspaper which a juror may have read. It in! no way compared to the positive detailed charge contained in the information that appellant had at a definite time and place . sold narcotics and to the positive testimony of the government’s witnesses as to the details of this sale.

¶28The jury had been instructed to and agreed to try the appellant fairly and impartially. In its final charge to the jury, the court stated inter alia—

“The evidence in the case consists of the sworn testimony of the witnesses, all exhibits which have been received in evidence, all facts which have been admitted or stipulated, and all applicable presumptions stated in these instructions. You must disregard any statement made by any person on either side of this case as to what any testimony has been, unless borne out by your final recollection thereof. … You are to consider only the evidence in the case.”

¶29*588We think that the district judge in his statements clearly met the test laid down by this court in Hamer v. United States, 259 F.2d 274, 280 (9th Cir.1958), cert. denied, 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577 (1959), where we said

“We find the voir dire examination permitted and undertaken here by the trial judge was adequate and fair to insure defendant the unbiased selection of an impartial jury to which he was entitled. The trial court advised counsel that if he had any additional voir dire questions, he could request the court to ask them. No such request was made. When the court asked if there were anything further on the issue of challenges for cause, defendant’s counsel states, ‘Nothing further.’ We hold the voir dire examination in this case was sufficient.”

¶30There is no showing that the jury falsified any answers. There is a mere speculation that they may have disregarded the clear instructions of the court. This is not sufficient. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

¶31We should proceed on the basis that a jury will follow the court’s instructions where these instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them. Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).

¶32As stated by this court in affirming appellant’s conviction, “the record reveals that there is an abundance of evidence to justify the conviction. Any other verdict would not have been realistic.” Fletcher v. United States, 313 F.2d 137, 139 (9th Cir.), cert. denied, 374 U.S. 812, 83 S.Ct. 1704, 10 L.Ed.2d 1035 (1963).

¶33We hold that no prejudice to the appellant has been shown.

¶34The second contention of appellant that the testimony of the informer was inherently incredible is equally unsubstantial. He urges that a “drug addict is inherently a perjurer” and that therefore the government “knowingly used perjured testimony by introducing [the informer] as a former narcotic addict and a reliable informer who was promised nothing for his informing.” The petition sets forth no statement of the informer that is shown to be untrue nor does it allege what perjured testimony the government knowingly used. The question of the credibility of the informer was a matter for the jury to determine. The defendant’s contention that because the prosecutor knew that the informer had been a drug addict therefore he must have known that the informer was testifying falsely is not sufficient.

¶35We hold that the examination of the files and records of the case conclusively shows that the appellant was entitled to no relief.

¶36Judgment affirmed.

¶102HAMLEY, Circuit Judge

¶103(concurring) .

¶104Had the information which came to the three jurors in the previous Wilson trial, to the effect that appellant Alcie Fletcher “ … is a narcotics peddler. … come from a witness who did not subsequently testify to the same effect in the Fletcher trial, I would feel that the failure of counsel for Fletcher to be advised of this occurrence deprived him, in the Fletcher trial, of the opportunity to exercise, effectively and intelligently, the peremptory challenges available to him under Rule 24(b), Federal Rules of Criminal Procedure. This in turn, in my view, would have constituted a denial of a fair trial, and hence a deprivation of due process of law guaranteed by the Fifth Amendment.

¶105My view, under that hypothesis, would be unaffected by the fact that the voir dire examination was adequate in view of the facts then known; that the jurors answered truthfully to the questions on voir dire, none being of a kind which would necessarily call for a disclosure of the incident in the Wilson case; that no misconduct on the part of the Govern*589ment was shown; that no actual prejudice on the part of the three jurors was shown; or that counsel for Fletcher used only eight of his ten peremptory challenges.

¶106But here the witness, Caron B. Durel, a federal narcotics agent, who testified in the Wilson case that Fletcher is a narcotics peddler, testified to similar effect in the Fletcher trial. Moreover, In the Fletcher trial Durel supported his appraisal of Fletcher with his eyewitness account of the actual narcotics transaction, involving a sale by Fletcher to one James Steward, upon which the prosecution of Fletcher was based.

¶107In the light of this circumstance, I do not see how it can be said that the denial of Fletcher’s right to remove the three jurors by peremptory challenge brought about by the undisclosed incident of the Wilson trial, affected the fairness of the Fletcher trial. Those three jurors who heard Durel make this statement in the Wilson trial twenty days previously, or any jurors who would have replaced them, heard or would have heard the same statement from the same witness at the Fletcher trial.