United States v. White, 16021

Citation454 F.2d 435
Decision Date22 February 1972
Docket NumberNo. 16021,16022.,16021
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James A. WHITE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Chauncey Eskridge, Chicago, Ill., Morris A. Shenker, John L. Boeger, St. Louis, Mo., for defendant-appellant.

William J. Bauer, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KERNER, Circuit Judge.

KERNER, Circuit Judge.

The defendant, James A. White, was tried and convicted by a jury for violations of two federal narcotics laws, 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. The defendant appealed the conviction, and this court reversed because it believed certain electronic surveillance techniques employed by the federal agents were violative of the defendant's Fourth Amendment rights. A petition for rehearing en banc was granted, and the majority decision of the three-judge panel was affirmed. United States v. White, 405 F.2d 838 (1969). Subsequently, the Supreme Court granted certiorari, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1970), and in an opinion dealing exclusively with the Fourth Amendment surveillance problem, reversed this court. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). This cause is again before us upon motion by the defendant for reargument of the issues not previously considered by this court.

The facts of this case are adequately set forth in both the en banc rehearing, supra, 405 F.2d at p. 838, and the Supreme Court opinion, supra, 401 U.S. at p. 746, 91 S.Ct. 1122, 28 L.Ed.2d 453, making a repetition of them unnecessary here.

In addition to the Fourth Amendment surveillance problem decided by the Supreme Court, the defendant originally urged that various procedural errors were committed by the trial court. These allegations charged abuse of the trial judge's discretion in restricting defendant's cross-examination of the federal narcotics agents; error in refusing admission of certain photographs; denial of a fair trial because the government allegedly instructed the witnesses not to discuss their testimony with defense counsel prior to trial; and prejudice, due to the government's failure to hold a preliminary hearing.

With respect to the trial court's restriction of cross-examination, the record reveals that counsel for the defendant sought to cross-examine the federal narcotics agents on their prior written statements and that the court frequently sustained objections to that examination. The appellant contends that these rulings were incorrect and that when viewed together they amounted to a denial of his right to confront and cross-examine the witnesses.

This court, in United States v. Lawinski, 195 F.2d 1, 7 (7th Cir.1952), set forth the limitations on the right to confront and cross-examine:

These relaxations of the general rule governing the proper scope of cross-examination, however, obviously cannot be defined with certainty to fit all occasions; their extent and limitations will depend upon the particular facts and circumstances of the case on trial. Generally, therefore, it is recognized that determination of where those limitations lie is within the sound discretion of the trial court. It is for the presiding judge to exercise a wise discretion in determining whether, considering the examination in chief, it is fit and proper that the questions presented be permitted or excluded. Storm v. United States, 94 U.S. 76, 24 L.Ed. 42. All the decisions agree that the latitude allowed should be great enough to subserve ends of justice; but once fixed by the trial court it can not be deemed erroneous except where it is clear that that discretion has been abused, even though the discretion is necessarily vague in extent.

In the case before us, the defendant was permitted to cross-examine the witnesses about prior statements but was limited to the substance of testimony elicited on direct examination. The restriction complained of was imposed only where his inquiry exceeded the scope of the direct examination. We note, additionally, that several of the rulings complained of were based upon the form of the questioning and not the substance. Those rulings also appear to have been proper. We conclude, therefore, that the defendant was not denied the opportunity to confront and cross-examine the government agents and that the breadth of cross-examination permitted by the trial court was sufficient to serve the ends of justice.

The trial court's refusal to admit certain photographs of the house and the particular room in which the surveillance took place is the basis for the defendant's second assertion of trial court error. He argues that such refusal was an abuse of the court's discretion and that the resultant prejudice to the defendant warrants reversal of the conviction. We do not agree.

The admission or rejection of photographs offered into evidence is within the discretion of the trial court and the exercise of that discretion will not be disturbed unless an abuse is shown. Drohan v. Standard Oil Co., 168 F.2d 761, 765 (7th Cir.1948), cert. denied 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 396; Vaughn v. National Tea Company, 328 F.2d 128, 130 (7th Cir.1964); Alford v. New York Central R.R. Co., 339 F.2d 1019, 1021 (7th Cir.1964). The photographs in question were apparently offered to show the condition of a building, but were admittedly taken almost a year after the incident. All of the fifteen photographs initially offered by the defendant were properly refused because an inadequate foundation was laid. Two of these, however, were subsequently admitted when further foundation testimony was offered by a different witness. With respect to the excluded photographs, the trial judge ruled that the foundation testimony failed to adequately explain the presence in the pictures of numerous people and objects of furniture different from those which were present at the time of the occurrence.

We have examined the photographs and are of the opinion that the trial judge's conclusion that the unexplained presence of different objects and people warranted their exclusion, was not an abuse of his discretion. Indeed, even if we were to assume that the pictures were improperly excluded we are unable to ascertain how the exclusion constituted reversible error. The defendant admits in his brief that the sole purpose for offering the pictures was "to show the physical condition of the building itself and the structure of the building at the time of the alleged offense" and in view of the fact that two of the photographs were admitted, we have difficulty in perceiving how any prejudice resulted from the exclusion of substantially similar...

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