Rodella v. United States

• Decision Date: 31 December 1960
• Docket Number: No. 16846.,16846.
• Parties: Henry RODELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

286 F.2d 306 (1960)

Henry RODELLA, Appellant, v. UNITED STATES of America, Appellee.

No. 16846.

United States Court of Appeals Ninth Circuit.

December 31, 1960.

COPYRIGHT MATERIAL OMITTED

Herbert A. Bernhard, Louis T. LaTourrette, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert John Jensen, Minoru Inadomi, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Appellant was indicted on eight counts of violating 21 U.S.C.A. § 174; 70 Stat. 570 (1956), i. e., for having "knowingly received, concealed, transported and sold, or in any manner facilitated the transportation, concealment or sale," of narcotic drugs. Appellant was convicted of the first six counts, and acquitted on the last two. The odd numbered counts charged a sale on four dates; the even numbered counts charged receiving, concealing and transporting, or facilitating the concealment and transportation of the same narcotic drugs on the same four dates. Thus, the first two counts related to August 9, 1958; the second two to August 15, 1958; the third two to August 19, 1958; and the fourth two to August 26, 1958.

Appellant was sentenced to serve ten years, concurrently, on counts one and two; an additional consecutive ten years on counts three and four, each to run concurrently; and an additional consecutive ten years on counts five and six, each to run concurrently; or a total of thirty years. For convenience, appellant has referred in his brief to the four several incidents by their locations, and we shall follow the same designation. Counts one and two, then, relate to the Gateway Market incident; three and four to the Hellman Street incident; five and six to the Alibi Bar incident; and seven and eight to the Owl Bar incident.

Jurisdiction below existed in 18 U.S.C. § 3231, and jurisdiction of this appeal rests on 28 U.S.C. §§ 1291, 1294.

In addition to the general proposition that the denial of appellant's motion for judgment of acquittal was erroneous, appellant urges the trial court committed four specific errors: (1) in permitting the "adoption" by additional witnesses of the testimony of the witness Vega; (2) in permitting the witness Lang to testify as part of the government's rebuttal; (3) in failing to grant all of appellant's pre-trial motions for a bill of particulars as to persons present at the time of the alleged sales; (4) in failing to hold as a matter of law there was no proof by direct evidence of possession of narcotics in the appellant with respect to the Alibi Bar incident. We consider each of the specified errors in turn.

A principal witness for the government was one Sergeant Edward Vega. He was called on direct examination; and twice recalled. As part of its case in chief, the government called two deputy sheriffs of Los Angeles County, each attached to the narcotics detail; each of whom stated that they had heard Sergeant Vega testify, having been in court during his testimony. Sheriff's Deputy Jones testified that he could not add anything to nor make any different statement than that which Sergeant Vega had made with respect to the Gateway Market incident. Sheriff's Deputy Trout testified that his testimony as to the Alibi Bar incident would not differ in any manner from that given by Sergeant Vega. Each of the two witnesses then testified to additional observations made by them, and acts performed by them, with respect to the two several incidents.

To the first question addressed to Jones, as to whether he had anything to add, counsel for defense made a general objection, and later objected to the form of the question. The court overruled both objections. As to witness Trout's testimony that he would not differ with Sergeant Vega's testimony, a general objection was first made. Thereafter an objection was made on the ground that the question was irrelevant and immaterial. Both objections were overruled. Appellant urges that such rulings were prejudicial error.

We do not encourage the use of such a timesaving device as one witness "adopting the testimony of another" in the trial of any case, particularly a criminal case. It adds little, if anything to a party's case. Yet we fail to see how appellant was injured. The court explained to appellant's counsel the reason for his ruling — economy of time.¹ It appears to us that such blanket adoption of another witness' testimony would have little if any weight with an ordinary jury in establishing the facts, and would weaken, if not eliminate, the cumulative effect of Jones and Trout as witnesses to those evidentiary facts established by Vega's testimony. The value of repetition to the prosecution's case was lost. But whether this be true or not, we must keep in mind that the trial court has a very large discretion as to how it will permit the introduction of evidence. Wills v. Russell, 1879, 100 U.S. 621, 626, 25 L.Ed. 607.

Furthermore (and this to our mind is conclusive), appellant's counsel, if he had desired to cross-examine the witnesses Jones and Trout to pursue conflicts in their testimony as compared to that of the witness Vega, could have asked the respective witnesses to repeat what they knew of the incidents. At no time was counsel for appellant deprived of any right of cross-examination. While, as we have stated, we question whether the use of such adopted testimony is of great or any value to a jury, we fail to find that the trial court acted beyond its well recognized jurisdiction to control the method of introduction of evidence, or that the defense was prevented from exercising any legal right to which it was entitled.

The second error alleged is that the government failed to call the witness Lang as part of its case in chief to support the testimony of its witness Vega. When the truth of Vega's testimony was challenged, as it was by appellant (particularly with respect to the fourth or Owl Cafe incident, of which appellant was not convicted), the government as part of its rebuttal offered the testimony of the witness Lang to bolster the truthfulness of Vega's statements.

The general rule has long been that whether material evidence (which could have been received as part of the case in chief) should be admitted in rebuttal, lies solely within the sound judicial discretion of the trial court. Goldsby v. United States, 1895, 160 U.S. 70, at page 74, 16 S.Ct. 216, at page 218, 40 L.Ed. 343; Samish v. United States, 9 Cir., 1955, 223 F.2d 358, certiorari denied 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755; Lelles v. United States, 9 Cir., 1957, 241 F.2d 21, certiorari denied 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136. But let us assume not only that the evidence of Lang could have been introduced as part of the government's case, but that it should have been, i. e., that it was essential to the government's case. We have already passed on such a matter in Austin v. United States, 9 Cir., 1925, 4 F.2d 774, at page 775, where we said:

"It would seem that the defendant in error reserved testimony for rebuttal that should have been offered as a part of its main case. Thus the government proved, as a part of its case in chief, that the multigraphed letters to the banks and the addressed envelopes were delivered to the wife of the plaintiff in error by his direction, and that she paid the bills by checks, and, if the Government intended to prove that the indictment letters were signed by the wife, that was the proper time and place to do it. But it is not prejudicial error to admit testimony in rebuttal which should have been offered as a part of the main case, unless the party against whom the testimony is admitted is denied the right to controvert or contradict it, and there was no denial of that right in this case." (Emphasis added.)

We thus find no error in the court permitting Lang to testify when he did.

The third point raised by appellant is that his demand for a bill of particulars prior to trial was granted in part and not in whole, and he was not given the names of the persons who were present at the times of the four alleged sales. The purpose of a bill of particulars is to protect a defendant against a second prosecution for the same offense and to enable him to adequately prepare his defense and to avoid surprise at the trial. Remmer v. United States, 9 Cir., 1953, 205 F.2d 277, 281.

The government resisted full compliance with appellant's request on the ground that it was not required to list the witnesses it might or might not call at the trial. Appellant replies he was not seeking a list of the government's witnesses, but merely a list of the persons who witnessed the alleged sales. This seems to raise a question of semantics. The persons the government would naturally call as witnesses would be the persons who witnessed the alleged sales; those who witnessed events leading thereto; those who witnessed events occurring thereafter; and the technical experts who would testify that the subject of the transactions was a narcotic. We do not find United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92, in any way apposite.

Appellant relies heavily on Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. That case related to the disclosure of an informant's idenity. The informant had been referred to in the indictment as John Doe, and it was charged that the appellant had sold John Doe heroin. Such was not the fact in the indictment here before us. The appellant here was charged with a sale on each of four occasions to a person named Robert E. Zuniga. That there were four separate transactions charged was revealed to the appellant by the dates specified and the fact there were four differing amounts of heroin mentioned.²

The determination of the extent to which a motion for a bill of particulars should be granted has been frequently and consistently held to be a matter addressed to the sole judicial...