United States v. Alfred A. Johnson

720 F.2d 519, 1983 U.S. App. LEXIS 15445, 14 Fed. R. Serv. 720
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 8, 1983
Docket83-1412
StatusPublished
Cited by23 cases

This text of 720 F.2d 519 (United States v. Alfred A. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alfred A. Johnson, 720 F.2d 519, 1983 U.S. App. LEXIS 15445, 14 Fed. R. Serv. 720 (8th Cir. 1983).

Opinions

HENLEY, Senior Circuit Judge.

Alfred A. Johnson appeals from criminal convictions of conspiracy to distribute and distributing cocaine in violation of 18 U.S.C. [520]*520§§ 841(a)(1), 846. Johnson presents two challenges to his convictions. First, he argues that the jury verdict was not unanimous. Second, he contends that the district court improperly denied his motion in li-mine to prohibit cross-examination on his prior criminal convictions, and that the prosecutor’s improper use of the convictions denied him a fair trial. We affirm.1

Johnson was indicted on one count of selling cocaine to Maurice Goldstein on June 30, 1981, and on one count of conspiracy to distribute cocaine on July 9, 1981. Gold-stein testified that he bought cocaine from Johnson on June 30 and immediately sold it to an acquaintance, Philip Schneiderman, who passed the cocaine on to undercover Drug Enforcement Agency (DEA) Agents Crosby and Leonhart. The DEA agents had “fronted” the money for the purchase. Other DEA agents testified that Johnson came to Goldstein’s home June 30. Johnson denied selling cocaine on that night.

On July 9 Crosby and Leonhart gave Goldstein $2800.00 for an ounce of cocaine; Goldstein promised delivery in a few hours. Goldstein testified that Johnson had agreed by telephone to sell an ounce of cocaine, and that he came by Goldstein’s house that night and picked up $2500.00. According to Goldstein, Johnson said that he would come back shortly with the cocaine, but Johnson never returned. Johnson testified that on July 9 he decided to “rip off” Goldstein by agreeing to sell cocaine and taking the “front” money. Johnson testified that he had no cocaine to sell and no intention of selling cocaine; rather, he was angry at Goldstein for making sexual advances to Johnson’s wife, and the theft was to be his revenge.

Unanimous verdict.

The jury in Johnson’s case returned its verdict, finding Johnson guilty on both counts of the indictment. The clerk of court then polled the jury. The first eleven jurors responded affirmatively to the question, “Are these your verdicts?” The twelfth juror, Ruby Budd, answered, “Yes, reluctantly.” The first eleven jurors were excused and the following exchange took place between the court and Mrs. Budd:

The Court: You have indicated that your verdict was “reluctantly” reached. Is there any hesitation in your mind about the defendant’s guilt?
Mrs. Budd: Yes, there was, because there was nobody that witnessed it, that they actually saw him pass the cocaine, but I
The Court: Just a second, that’s all I need to know for right now.

The court then stated to counsel his intention of sending the jury back for further deliberations. Neither party objected, though defense counsel’s request that the reasonable doubt instruction be given again was denied. Fifteen minutes later, the jury returned and again gave its verdict of guilty on both counts. The jurors were polled individually, and each agreed that the verdict as rendered was their verdict. Mrs. Budd was then questioned by the court:

The Court: You’re satisfied with your verdict?
Mrs. Budd: Yes.
The Court: Do you have any hesitancy in your mind about it?
Mrs. Budd: I did, but not now.
The Court: You’re satisfied that he’s guilty beyond a reasonable doubt?
Mrs. Budd: Yes.

After a discussion with counsel at the bench, the following exchange took place: The Court: Do you have any feeling that you want or need more time in order to reach a decision in this case?

Mrs. Budd: . I believed Agent Crosby’s statement.
The Court: You don’t feel you need any more time?
[521]*521Mrs. Budd: No.

The court then discharged the jury.

Johnson claims that these colloquies demonstrate the lack of a unanimous verdict. We disagree. At the first hint of a non-unanimous verdict, the court questioned the juror about the verdict and sent the jury back for further deliberations. This was within the court’s discretion under Fed.R.Crim.P. 31(a). Amos v. United States, 496 F.2d 1269, 1272-73 (8th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 140 (1974).

Johnson further contends that Mrs. Budd’s statement, “I believed Agent Crosby,” shows that Mrs. Budd based her verdict on her belief that Johnson was guilty of theft, but not of distributing cocaine, since Agent Crosby’s testimony could not support a guilty verdict on the cocaine charges. He supports this assertion with a transcript of a post-trial interview with Mrs. Budd which so states. Johnson relies on United States v. Pleva, 66 F.2d 529 (2d Cir.1933), and Fox v. United States, 417 F.2d 84 (5th Cir.1969), for the proposition that when a juror never comes into agreement with the verdict, there is, in effect, no verdict at all. Pleva and Fox are quite different from this case. Pleva involved an ill juror who consented to a guilty plea due to concern over his health, and Fox involved a juror who remained silent when polled by the clerk. In Fox the ambiguity of the juror’s verdict was apparent during the polling process when the juror did not affirmatively and unconditionally state his agreement with the verdict. Fox v. United States, 417 F.2d at 88. In Pleva the ambiguity arose after polling, but before discharge of the jury when the ill juror stated that he would have voted against conviction but for his concern of spending another night without medical treatment. United States v. Pleva, 66 F.2d at 532. In this case, Mrs. Budd assured the court several times of the certainty of her decision; there was no explicit reference to coercion or disagreement prior to the discharge of the jury. Further, the statement, “I believed Agent Crosby,” does not raise doubts about the verdict or in any way indicate coercion, duress, or uncertainty. Amos v. United States, 496 F.2d at 1273; United States v. Smith, 562 F.2d 619, 622 (10th Cir.1977). Even assuming Mrs. Budd did vote to convict Johnson on the basis of his admitted theft,2 a juror’s reasons for his verdict are generally irrelevant and mistake will not result in impeachment of the verdict. United States v. Schroeder, 433 F.2d 846, 851 (8th Cir.1970); see United States v. Weiner, 578 F.2d 757, 764 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). The jury was correctly instrúcted, and the verdict was clear and unanimous.

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United States v. Alfred A. Johnson
720 F.2d 519 (Eighth Circuit, 1983)

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Bluebook (online)
720 F.2d 519, 1983 U.S. App. LEXIS 15445, 14 Fed. R. Serv. 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alfred-a-johnson-ca8-1983.