United States v. David Mathis, United States of America v. Samuel Moore , 550 F.2d 180 ( 1977 )

PER CURIAM:

David Mathis and Samuel Moore both appeal their convictions for armed bank robbery. They assert numerous grounds for reversal, but we find none meritorious. We affirm.

I.

Defendants’ principal argument is that the district court committed reversible error in permitting the testimony of Karen Jones, given at a previous trial in which a mistrial was granted, to be read to the jury. Karen Jones was not available to testify in person because she could not be located; inadvertently she had been released from a District of Columbia penal institution pursuant to a court order requiring the release of another prisoner bearing the same name.

Jones’ prior testimony was admissible under Rule 804 of the Federal Rules of Evidence if her attendance at the trial could not be procured by process or other reasonable means. Rule 804(a)(5). The record shows that reasonable efforts were made to find her, but to no avail. Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900) is inapposite. In the instant case, unlike Motes, the disappearance of Jones was due to inadvertence, not reckless disregard of an obligation to produce her, and there is no evidence that the prison official who released her knew that she would be needed as a witness.

II.

We see no error in the use of a statement of a witness made when he pleaded guilty to impeach his testimony in this trial. Federal Rule of Evidence 410 and Rule 11(e)(6), F.R.Crim.P., only prohibit statements made in conjunction with a guilty plea from being used (1) against the person who made the plea, and (2) when that person has withdrawn the guilty plea. In the instant case, neither condition was met. The witness had not withdrawn his guilty plea and the statement was not used against him, but was used collaterally for purposes of impeachment.

III.

M Defendants’ remaining contentions are also lacking in merit. The district court’s requirement that peremptory challenges be exercised from a list of jurors rather than from the box is sanctioned by Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894). See also Amsler v. United States, 381 F.2d 37 (9 Cir. 1967), and Carbo v. United States, 314 F.2d 718 (9 Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964).

The fact that the district judge presided at the trial of a codefendant is no ground for disqualification, especially when no affidavit of bias or prejudice was filed. The photographic lineup was not impermissibly suggestive. A newspaper article connecting a witness to a robbery was inadmissible hearsay, even for purposes of impeachment.

AFFIRMED.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC