Morris Johnson, Jr. v. United States, 484 F.2d 309 (8th Cir. 1973). · Go Syfert
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Morris Johnson, Jr. v. United States, 484 F.2d 309 (8th Cir. 1973). Cases Citing This Book View Copy Cite
25 citation events (1 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Michael Maraj, United States of America v. Sterling Fuentes (ca1, 1991-10-16)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Michael Maraj, United States of America v. Sterling Fuentes
1st Cir. · 1991 · confidence medium
See United States v. Graham, 739 F.2d 351, 352 (8th Cir.1984) (“In the absence of some showing of actual prejudice ... we have repeatedly rejected the argument that a juror’s service in prior cases involving the same attorneys or witnesses supports a per se theory of implied bias.”) (citing other Eighth Circuit cases); United States v. Riebschlaeger, 528 F.2d 1031, 1032-33 (5th Cir.) (per curiam) (the fact that many of the jurors served in other criminal cases which defense counsel had unsuccessfully defended did not taint venire), cert. denied, 429 U.S. 828 , 97 S.Ct. 86 , 50 L.Ed.2d 91…
cited Cited as authority (rule) State v. Mick
Mo. Ct. App. · 1984 · confidence medium
He can claim no per se theory of implied bias, rejected in Johnson v. U.S., 484 F.2d 309, 310 (8th Cir.1973); State v. Hutchens, 604 S.W.2d 26, 29 (Mo.App.1980).
cited Cited as authority (rule) United States v. Tesfa
E.D. Pa. · 1975 · confidence medium
Ed.2d 874 (1974); Johnson v. United States, 484 F.2d 309, 310 (8th Cir.), cert. denied, 414 U.S. 1039 , 94 S.Ct. 539 , 38 L.Ed.2d 329 (1973).
discussed Cited as authority (rule) Kelton v. United States (2×)
W.D. Mo. · 1975 · confidence medium
United States v. Williams, 484 F.2d 176, 177-178 (8th Cir. 1973); Johnson v. United States, 484 F.2d 309, 310 (8th Cir. 1973).
cited Cited as authority (rule) United States v. Clifford Jones
8th Cir. · 1973 · confidence medium
United States v. Williams, 484 F.2d 176, 177-178 (8th Cir. 1973); Johnson v. United States, 484 F.2d 309, 310 (8th Cir. 1973).
discussed Cited "see" United States v. Tony L. First
1st Cir. · 1979 · signal: see · confidence high
See Johnson v. United States, 484 F.2d 309 (8th Cir.), cert. denied, 414 U.S. 1039 , 94 S.Ct. 539 , 38 L.Ed.2d 329 (1973); United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975); United States v. Stevens, 444 F.2d 630 (6th Cir. 1971).
discussed Cited "see" Clarence McClendon v. United States
8th Cir. · 1978 · signal: see · confidence high
See Johnson v. United States, 484 F.2d 309 (8th Cir.), cert. denied, 414 U.S. 1039 , 94 S.Ct. 539 , 38 L.Ed.2d 329 (1973); United States v. Williams, 484 F.2d 176 (8th Cir.), cert. denied, 414 U.S. 1070 , 94 S.Ct. 581 , 38 L.Ed.2d 475 (1973); United States v. Stevens, 444 F.2d 630 (6th Cir. 1971). 4 .
cited Cited "see" United States v. Schullo
D. Minnesota · 1975 · signal: see · confidence high
See Irvin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961), Johnson v. United States, 484 F.2d 309 (8th Cir. 1973), see also United States v. Woods, 364 F.2d 481 (3rd Cir. 1966).
discussed Cited "see" Estes v. State
Okla. Crim. App. · 1974 · signal: see · confidence high
See Battle v. State, supra. See also Johnson v. U. S., 484 F.2d 309, 311 (1973), wherein the prosecutor referred to a defendant accused of distributing heroin as a “pusher.” The Court stated: “Johnson moved for a mistrial on the basis that this statement was not supported by the evidence.
discussed Cited "see, e.g." United States v. Jonathan Davis
8th Cir. · 2025 · signal: see, e.g. · confidence medium
See, e.g., Johnson v. United States., 484 F.2d 309, 310 (8th Cir. 1973) (per curiam) (refusing to find implied bias when jurors had heard government witnesses testify in previous trials); United States v. Williams, 484 F.2d 176, 178 (8th Cir. 1973) (per curiam) (same); United States v. Jones, 486 F.2d 476 , 477–78 (8th Cir. 1973) (per curiam) (same); United States v. Graham, 739 F.2d 351, 352 (8th Cir. 1984) (per curiam) (refusing to find implied bias where several jurors had sat on a jury involving the same attorney and defendant).
discussed Cited "see, e.g." United States v. Rufus Graham
8th Cir. · 1984 · signal: see, e.g. · confidence medium
See, e.g., Johnson v. United States, 484 F.2d 309, 310 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1039 , 94 S.Ct. 539 , 38 L.Ed.2d 329 (1973); United States v. Williams, 484 F.2d 176, 177-78 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1070 , 94 S.Ct. 581 , 38 L.Ed.2d 475 (1973).
Retrieving the full opinion text from the archive…
Morris JOHNSON, Jr., Appellant,
v.
UNITED STATES of America, Appellee
73-1197.
Court of Appeals for the Eighth Circuit.
Nov 19, 1973.
484 F.2d 309
Walter J. Matejka, Omaha, Neb., for appellant., William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellee.
Clark, Heaney, Bright.
Cited by 19 opinions  |  Published
PER CURIAM:

Appellant Morris Johnson was convicted of knowingly and intentionally distributing heroin. On appeal he challenges (1) the denial of his motion to discharge the jury panel or grant a continuance, (2) certain comments by the prosecutor referring to Johnson as a “pusher” and (3) an instruction stating that no inference of guilt could be drawn from Johnson’s “failure” to testify. We find no merit in any of Johnson’s claims and affirm the conviction.

(1) The District Court conducted the basic voir dire questioning of the jury panel, but it gave counsel the opportunity to conduct further inquiry. During voir dire several prospective jurors said that they had heard certain government witnesses, Hutton, Ryan and Frazier, testify in previous trials. These same witnesses were expected to and subsequently did in fact testify against Johnson. At the conclusion of voir dire Johnson’s counsel expressly declined to challenge any juror for cause. Johnson's first objection to the jury panel was made immediately prior to the exercise by him and the prosecutor of their respective peremptory challenges. Johnson based his motion, in part, on the per se argument that no fair and impartial jury could be selected from the panel since a majority of these jurors had heard Hutton, Ryan and Frazier testify at one or more previous trials. The District Court denied the motion.

Johnson failed to establish that any juror was actually prejudiced in favor of the three government witnesses. He does not point to the voir dire of any particular juror as indicating actual prejudice, nor does he complain that the voir dire was in any way inadequate. Indeed, he did not even attempt to have any juror dismissed for cause. His claim that he was denied an impartial jury must therefore rest wholly on a per se theory of implied bias. We do not think that the danger of prejudice against the accused arising from jurors having served in prior cases involving the same government witnesses but different, unrelated defendants and entirely different and independent transactions is great enough to justify a per se rule of bias. The “mere existence of any preconceived notion” relevant to the accused’s guilt or innocence is not sufficient to negate impartiality. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See Fabian v. United States, 358 F.2d 187, 191 (1966). Johnson does not cite any federal ease reversing a conviction on the per se rule that he advances and we have discovered none. On the contrary, the cases uniformly reject the argument. United State v. Haynes, 398 F.2d 980 (2d Cir. 1968); Cwaeh v. United States, 212 F.2d 520 (8th Cir. 1954); Haussenerv. United States, 4 F.2d 884 (8th Cir. 1925). See Casias v. United States, 315 F.2d 614 (10th Cir. 1963). While we do not endorse the procedure followed here, we do not regard it as reversible error in the absence of some showing of actual prejudice.

(2) During rebuttal argument the prosecutor made the following statement to the jury:

“Early in the case the defense counsel suggested how easy it was to get narcotics in this town; like talcum[*311] powder in a medicine cabinet, is the example he used. Well, it’s easy to get it in this town because pushers like the defendant will sell to anybody, and they will sell to three people that walk up to them on the street. That it why it is easy to get.”

Johnson moved for a mistrial on the basis that this statement was not supported by the evidence. We think the court properly denied the motion. A “pusher” is someone who sells illicit drugs. There was ample evidence that Johnson had in fact sold heroin illegally, and the comment was to some extent invited by the earlier comments of Johnson’s counsel to which the prosecutor referred. The statement was neither so inflammatory nor so misleading as to require a mistrial. See.United States v. Lewis, 423 F.2d 457 (8th Cir. 1970), cert, denied 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142.

(3) Finally, Johnson complains of Instruction No. 18:

“The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn from the failure of a defendant to testify.” (Emphasis supplied.)

His complaint is that the word “failure” carries negative connotations and implies a dereliction of duty on his part. Johnson had previously requested the court to instruct: “The jury is cautioned not to hold anything against the defendant’s willful exercise of his right not to testify.” The judge advised that he would give this instruction in substance. He also informed Johnson’s counsel that he would pause after reading the instructions to the jury to allow counsel an opportunity to make any objections he wished to the instructions as given. Counsel, however, made no objection until after the jury had been excused and had commenced its deliberations. We have difficulty in perceiving any significant difference between the instruction requested and the one actually given, and we very seriously doubt that the court’s choice had any effect on the jury’s attitude toward Johnson’s refusal to testify. In any event, Johnson waived his objection by not asserting it at the proper time.

The judgment is affirmed.