Appeal from the United States District Court for the Eastern District of Illinois - No. 72-45 James L. Foreman, Judge.
Fairchild, Pell, and Stevens, Circuit Judges.
Defendant-Appellant Isaiah Tweed appeals from a judgment of conviction following a verdict of guilty on two counts of an indictment for possession of destructive devices in violation of 26 U.S.C. §§ 5861 (c), 5861 (d), and 5871. Tweed raises a number of issues on appeal, the most significant ones being: (1) whether the district court erred in its examination and exclusion of certain veniremen; and (2) whether the district court erred in permitting the Government to introduce certain evidence in rebuttal.
Approximately four months prior to the trial in the present case, Tweed was tried and acquitted by a jury for possession of a sawed-off shotgun. The charges involved in the first trial arose out of the same transaction as the indictment counts involved in the present case. At the voir dire in the present case, defense counsel asked that three prospective jurors be removed for cause: one had served on the jury in the prior trial and two had been on the jury panel, although not the actual jury, in the prior trial. After examining these three persons, the district court removed for cause the venireman who had actually served on the previous jury, but refused to remove for cause the two veniremen who had been in the prior jury panel. Tweed contends that the district judge erred in failing to exclude for cause these two veniremen.
The two veniremen in question, however, did not actually serve on the jury in the present case being removed apparently by means of peremptory challenges. The defendant has made no showing that the use of these peremptory challenges in any way prejudiced his case. In this situation no error arose from the district court's refusal to exclude these veniremen for cause. Cf. Jordan v. United States, 295 F.2d 355, 356 (10th Cir. 1961), cert. denied, 368 U.S. 975, 7 L. Ed. 2d 438, 82 S. Ct. 479 (1962).
Tweed also contends that the district judge committed error in asking the entire jury panel:
"Have any of you, those of you who served here in June and July, were you on any trial involving this defendant?"
The defendant argues that this question informed the entire jury panel in the present case that Tweed had been tried earlier in a criminal matter and permitted the panel to infer that Tweed was disposed to commit crimes.
The defendant has read too much into the district judge's question. The question does not indicate that the earlier action was a criminal trial. In the question immediately preceding this one, the trial judge had asked, in fact, about whether any panel members had served previously on either criminal or civil juries. Moreover, the district judge's question only indicated that Tweed had been "involved" in a prior action. From this question, the veniremen could not have known whether Tweed was a plaintiff, a defendant, or a witness in the earlier trial. We conclude that the district judge's question does not require reversal.
Tweed further complains of the district court's refusal to engage in further interrogation of the three jurors in question. We are satisfied that the judge sufficiently brought out their connection with the panel and their connection or lack of connection with the earlier trial. In any event, as stated before, none of the three served on the jury in the present case.
We find no merit in the contention that the entire panel should have been excused. Tweed relies on Mottram v. Murch, 458 F.2d 626 (1st Cir. 1972), and United States v. Leonard, 378 U.S. 544, 12 L. Ed. 2d 1028, 84 S. Ct. 1696 (1964). In Mottram, four jurors were permitted to sit on both trials and in Leonard a jury was selected from a panel which had heard the pronouncement of a guilty verdict in the prosecution of the same defendant for a similar crime. Over and above the fact that in the present situation the defendant had been found not guilty by the prior jury of an offense arising out of the same transaction, the factual situations of the cited cases are otherwise so far removed from the present case as to make them inapplicable as authority.
No prejudice to Tweed's right to a fair trial has been demonstrated by the district court's manner of handling the impaneling of the jury and ...