Appeal from the United States District Court for the Southern District of Illinois, Northern Division. No. P CR 73 25 ROBERT D. MORGAN, Judge.
Cummings, Stevens and Sprecher, Circuit Judges.
A jury found both appellants guilty of eight separate violations of 18 U.S.C. §§ 2314 and 2.*fn1 The indictment charged the defendants with causing the interstate transportation of eight forged checks. Each check was purportedly drawn by the Safeco Insurance Company on the Boatmen's National Bank of St. Louis, and made payable to John R. Stack; six of the checks were in the amount of $168.03 and two were for $987.72.
The evidence showed that the appellants, together with the government's witness Baker, decided in December, 1972, to make some money by utilizing blank Safeco checks in the possession of Dilts. Checks were then cashed at eight different business establishments in the Southern District of Illinois. Four were cashed in Peoria, two in Moline, and two in Pekin. It was stipulated that, had the government called him as a witness, John R. Stack would have testified that a Selective Service card and two Bradley University identification cards were stolen from his place of residence. The record also disclosed that documents answering this description were found in a search of Dilts' residence.
Appellants advance four arguments for reversal: (1) that it was error to permit the prosecutor to use a misdemeanor conviction to impeach a defense witness; (2) that they were deprived of a fair trial by the judge's cross-examination of that witness; (3) that the evidence described only one offense rather than eight separate offenses; and (4) that the prosecutor's reference to the indictment of appellant Craven for another offense was reversible error.
After having asked the witness Toland about his four felony convictions, the prosecutor asked whether he had been found guilty of disorderly conduct, a misdemeanor. It was error for the court to allow such a question, but it was unquestionably harmless.
While any recent felony conviction may be used to impeach a witness,*fn2 in the case of misdemeanors, "most courts have . . . require[d] that . . . the offense . . . be one involving 'moral turpitude. '" MCCORMICK, EVIDENCE, § 43, at 85 (2d ed. 1972). The circuits are divided on the extent to which the rule should be followed;*fn3 the Third Circuit applies the rule, chosen by the Advisory Committee on the Proposed Rules of Evidence for the Federal Courts,*fn4 that misdemeanors must amount to crimen falsi.*fn5 We need not decide whether to follow the rationale of the Third Circuit, for, even under the "moral turpitude" standard, the disorderly conduct conviction should not have been used to impeach the witness here. If selling amphetamines without prescriptions and obstructing police officers have not been considered to be misdemeanors involving moral turpitude,*fn6 disorderly conduct is certainly not such a crime. It was error to allow the impeachment.
Nevertheless, it is clear that the error was harmless. Since the witness had already been impeached with four felony convictions, the introduction of a misdemeanor conviction which produced only a $40 fine was, at most, merely cumulative. Since the evidence of guilt is unusually strong, we have no doubt that the error was harmless under the test enunciated in Kotteakos v. United States, 328 U.S. 750, 764, 90 L. Ed. 1557, 66 S. Ct. 1239.*fn7
Appellants argue that the extensive questioning of the witness Toland by the trial judge deprived them of a fair trial.
Toland shared an apartment with one Larry Baker during December, 1972, the month in which the check forgeries were alleged to have occurred. During that month, a party was held at the apartment; the appellants were among those present. Toland testified that Baker went into the bedroom and returned with a box containing a check protector and some papers. He then testified that Baker asked the appellants and their co-defendant at trial "if they wanted to get into this check thing with him, to see if they could make some money. And Larry and Earl denied it."*fn8
On cross-examination, the prosecutor asked nothing about this party, choosing only to impeach the witness with his criminal record. The trial judge, however, sought to elicit from the witness the date of the party, presumably to see if it was before the 20th of December, the first of the dates named in the indictment. The witness testified that, although he could not specify the date, to the best of his knowledge it was in the second week of December, that is, between the 10th and 16th of the month. Thereafter, the judge continued to question the witness, in a manner the appellants not unfairly label cross-examination. In all, the judge's questioning occupies eight pages of the transcript.
Although the duty of the trial judge to exercise his control of a trial in an impartial manner is beyond dispute,*fn9 it is difficult "for an appellate court to determine from a reading of words spoken at trial whether questions by the ...