Justia Federal District Court Opinions

In this appeal from conviction on count two of a three count indictment under 18 U.S.C.A. Sec. 1343 for fraud by interstate telephone we find no reversible error as charged in (i) the court's handling of count three on which a judgment of acquittal was ordered during the Government's case, (ii) restrictions on cross-examination of the principal Government witness and (iii) admission of testimony for impeachment using questions which were prompted by Appellant's deposition in an earlier related civil suit.

With respect to Defendant's allegation (iv), the charge that an unqualified juror was permitted to serve, the record leaves us in a state of complete uncertainty largely because the trial court declined to permit, or make, a factual inquiry into the allegation. Consequently, we remand to the District Court so that an appropriate factual inquiry will be made as to whether the juror at the time he sat was able to read, write and understand the English language as required by 28 U.S.C.A. Sec. 1861 (2).¹

If the trial court finds in the affirmative, the conviction stands affirmed.² If the trial court finds in the negative, then in the exercise of our supervisory power, see Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 54, 55, 60 (en banc) we direct that the conviction be reversed for a new trial.

Remanded with directions.