United States of America, Plaintiff-appellee, v. Walter Lee Harper, Defendant-appellant, 443 F.2d 911 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 443 F.2d 911 (9th Cir. 1971) June 4, 1971

Luke McKissack, Hollywood, Cal., for defendant-appellant.

Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., George G. Rayborn, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BROWNING, CARTER and TRASK, Circuit Judges.


Harper appeals from a conviction in the district court for violations of 18 U. S.C. §§ 472 and 473 (possessing and dealing in counterfeit government obligations). His sole contentions are:

(1) That the district court erred in allowing the government to introduce evidence of appellant's prior conviction to impeach appellant after he testified in his own behalf.

(2) That the district court erred in instructing the jury that all witnesses are presumed to speak the truth. We affirm.

(1) It is well settled in this circuit that a defendant who takes the stand may be impeached by the use of a prior felony conviction. Nutter v. United States (9 Cir. 1969) 412 F.2d 178, 182, cert. denied 397 U.S. 927, 90 S. Ct. 935, 25 L. Ed. 2d 107 (1970). United States v. Allison (9 Cir. 1969) 414 F.2d 407, 411-412, cert. denied 396 U.S. 968, 90 S. Ct. 449, 24 L. Ed. 2d 433 (1969).

Here, the appellant objected to the question concerning the prior felony, on the ground that the question was outside the scope of cross-examination. Where there is a "meaningful invocation" of the courts' discretion, the district court on consideration of certain criteria, may refuse to admit the prior conviction into evidence. Absent such an invocation of the district courts' discretion, reversal is not warranted. United States v. Allison, supra, pp. 411-412.

(2) There was no objection to the instruction in the court below. The instruction has been used traditionally in this circuit. Any question regarding the instruction will not be considered when raised for the first time on appeal. Smith v. United States (9 Cir. 1968) 390 F.2d 401; Marsh v. United States (9 Cir. 1968) 402 F.2d 457.

The judgment is affirmed.