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United States v. Jackson

decided: July 16, 1973.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SILVESTER SAM JACKSON, DEFENDANT-APPELLANT



Swygert, Chief Judge, and Pell and Stevens, Circuit Judges.

Author: Swygert

SWYGERT, Chief Judge.

Silvester Sam Jackson, defendant-appellant, and Nicholas Romak, were indicted for violating the Dyer Act: possession of a 1970 Peterbilt truck which had been stolen in Cape Girardeau, Missouri and later found in Orland Park, Illinois. Jackson was found guilty by a jury verdict and sentenced to five years imprisonment.*fn1 The appeal from his conviction raises two issues: (1) whether the district court improperly limited the cross-examination of a Government witness; and (2) whether the prosecutor stated his personal opinion on the credibility of the Government witnesses in his final argument. We reject both contentions and affirm.

Briefly stated, the evidence showed that on April 16, 1971, a stolen 1970 Peterbilt truck was found in the possession of Nicholas Romak. Romak, who was charged together with appellant Jackson with the unlawful possession of a stolen vehicle, agreed to become a Government witness in the prosecution of Jackson. At Jackson's trial Romak stated that he had bought the truck from Jackson for $4,800 with the understanding that it was "hot." Payment was made in installments, some by check and some in cash. Several checks written by Romak to Jackson were identified as part of his payments for the truck. In addition, Romak testified to various details concerning the delivery of the truck and the alteration of the serial numbers on it.

The Government's second principal witness, John Reichling, who lived with Jackson, testified that in September 1970 Jackson told him that he had a stolen Peterbilt truck for which he thought he had located a buyer. Jackson also told Reichling that he planned to do a "numbers job" on it. Reichling further stated that Jackson later told him that the "numbers job" had been successfully completed and the truck sold to Romak. According to Reichling's testimony, the appellant showed him the stolen truck, which at the time was at Romak's residence. The Government's other witnesses corroborated various details of the serial number alteration and the transfer of possession.

The defense theory, established solely by Jackson's testimony, was that Jackson never had possession of the truck and never sold it to Romak. Jackson testified that he merely told Romak that a party named Buckie Gentry had a Peterbilt truck for sale and that Romak later asked him to do some repair work on the truck. Jackson said that he assumed Romak had purchased the truck from Gentry. Jackson, who had done considerable repair work on another truck belonging to Romak, explained that the checks from Romak were not payments for the stolen truck but were payments for previous repair work he had performed on the other truck.

As to the damaging testimony of Romak and Reichling, appellant attempted to show that both had a strong incentive to perjure themselves. Romak acknowledged under cross-examination that he had pled guilty to possession of the stolen Peterbilt and was given probation. He further stated that his lawyer told him and he believed that he would be given probation if he pleaded guilty and testified for the Government. He denied, however, that he was promised probation by the Government in exchange for his testimony. As to Reichling, it was the defense theory that Reichling was offered the dismissal of an unrelated criminal charge then pending against him in exchange for his testimony. The defense was unable to explore this theory in detail because of the allegedly erroneous ruling by the trial court, but the cross-examination of Reichling did establish that Reichling had said to the appellant that the Government had told him that it was Jackson that they were "after" and that if he, Reichling, did not help to implicate him, they would "get" him.

I

With respect to the appellant's first contention, a more detailed exposition of the facts is needed. Prior to cross-examination of witness Reichling, defense counsel explained to the trial judge, out of the presence of the jury, that she intended to examine the witness regarding promises which may have been made by the prosecutor with respect to an unrelated criminal charge then pending against him. The defense hoped to elicit a response by which the jury could infer that Reichling was testifying against Jackson in exchange for the dismissal of the other charge.*fn2 Defense counsel moved for an instruction to the witness not to "blurt out" the fact that Jackson was also charged with that offense. Unfortunately, the trial judge never ruled on the specific motion to instruct the witness. Rather, a colloquy among the judge, the prosecutor, and defense counsel ensued in which the assistant United States Attorney objected to the motion, expressing his contention that the intended cross-examination would "open the door" for testimony on redirect that the defendant Jackson was in fact involved in the other crime. Essentially the colloquy dealt with the question of whether the information sought to be excluded would be proper on redirect. The argument concluded:

THE COURT: Well, you are treading on dangerous grounds if you go into that aspect of the examination.

DEFENSE COUNSEL: That is why I want to bring it up now.

THE COURT: Because he certainly has a right to go into the other phase of it.

DEFENSE COUNSEL: I would think the prejudice would so far outweigh the relevance, and I think it is definitely relevant to showing a possible motivation for lying. That is obviously the theory of the defense here, that the FBI has pressured people into implicating Jackson.

THE COURT: I am going to permit -- depending on what you ask the witness -- I don't know what you are going to ask him specifically, but I certainly would permit the U.S. Attorney ...


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