475 F.2d 688 (9th Cir. 1973), 72-1807, United States v. Noah

Docket Nº:72-1807 to 72-1810, 72-1865.
Citation:475 F.2d 688
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Leon Dudley NOAH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard R. STUART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie WILLINGHAM and Abraham Griffin, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Virgil METCAL
Case Date:March 02, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 688

475 F.2d 688 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Leon Dudley NOAH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard R. STUART, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie WILLINGHAM and Abraham Griffin, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Virgil METCALF, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Humphrey ROSS, Defendant-Appellant.

Nos. 72-1807 to 72-1810, 72-1865.

United States Court of Appeals, Ninth Circuit.

March 2, 1973

Rehearing Denied April 25, 1973.

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[Copyrighted Material Omitted]

Page 690

Wesley G. Hohlbein (argued), Seattle, Wash., Jack Steinberg (argued), Seattle, Wash., Murray Guterson (argued), Seattle, Wash., Robert C. Mussehl (argued), Seattle, Wash., Arthur Sherman (argued), Marks, Sherman & Schwartz, Beverly Hills, Cal., B. Gray Warner, Warner, Pierce & Peden, Seattle, Wash., for defendants-appellants.

Charles Pinnell, Asst. U. S. Atty. (aruged), Tom Russell, Asst. U. S.

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Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before BARNES and CHOY, Circuit Judges, and JAMESON, [*] District Judge.

CHOY, Circuit Judge:

Appellants were indicted on 18 counts 1 for trafficking in heroin and cocaine and conspiring to do so. Two of the counts were for possession of narcotics with intent to distribute, based on the seizure of narcotics from the residence of two of the appellants. The other fourteen substantive counts were for twelve sales by various members of the conspiracy to a government undercover agent. 2 These sales took place between March 5, 1971 and July 28, 1971. Two separate counts of conspiracy were charged. 3

All six appellants were tried jointly by a jury and found guilty on all counts as charged. All six have filed timely appeals. We affirm as to all with directions and one of Ross's $7,500 fines is stricken. We consider each appeal separately.

LEON DUDLEY NOAH

1. Missing witness instruction.

Noah asked that the court give an instruction to the effect that since the government did not produce a certain witness there is a presumption that her testimony would have been unfavorable to the government's case. The court refused to give the instruction and Noah appeals that ruling.

The failure of a party to produce a material witness who could elucidate matters under investigation gives rise to a presumption that the testimony of that witness would be unfavorable to that party if the witness is peculiarly within the party's control. World Wide Automatic Archery, Inc. v. United States, 356 F.2d 834, 837 (9th Cir. 1966). Here the government did not call as a witness a paid informer who was instrumental in the government's investigation. Noah asserted that the government entrapped him and the missing witness could have elucidated this aspect of the case. We do not think that the trial court erred in not giving the instruction.

The record does not indicate that this witness was peculiarly within the power of the government. The issue of her availability was a question of fact for the trial court to decide. While the informer was at one time associated with the government, there was a break in the relationship. The witness left the state about three months before appellant's indictment and five months before trial and no one knew of her whereabouts. She was equally unavailable to both Noah and the government. The instruction was properly rejected as not warranted by the facts of this case. 4

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United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert. denied 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970).

2. Entrapment instructions.

Noah claims that the court erred by instructing the jury that the defense of entrapment is applicable only when a person has no previous intent or purpose to violate the law and has a readiness and willingness to break the law. Noah maintains that since he was a drug addict he should be entitled to a special entrapment instruction. The law is clear that if a predisposition to break the law exists before the government makes any offer, the entrapment defense does not apply. 5 United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971).

3. Dismissal of part of the indictment.

Noah contends that his Fifth Amendment rights were violated when the court, pursuant to F.R.Crim.P. 48(a) dismissed five substantive counts from the indictment. Noah claims that by eliminating the substantive counts the theory of the original indictment was changed without the indictment being resubmitted to the grand jury.

We see no merit in Noah's contention. He was in no way prejudiced by the elimination of part of the indictment. An indictment may not be broadened except by the grand jury. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Here the indictment was not expanded, but consolidated and some of the charges were eliminated. There is no Fifth Amendment prohibition against this.

4. Prejudicial publicity.

The day after the prosecution rested, a newspaper article appeared in a local paper. The headline read, "Dope Case Witness Refuses to Testify." The article referred to a government witness who the government claimed was too sick to testify. 6 The court asked the jurors whether any of them had either read the article or seen the headline. Only one juror admitted that he had read the headline. This juror was examined at length to determine if he had been influenced by the article. The court decided that the juror could still remain fair and impartial.

During the examination, however, this juror said that probably half a dozen other jurors also saw the headline. The defense was given an opportunity to question the other jurors, but declined to do so and moved for a mistrial instead. That motion was denied. We affirm the ruling.

"The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251 [, 31 S.Ct. 2, 6, 54 L.Ed. 1021]. Generalizations beyond that statement are not profitable, because each case must turn on its special facts." Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959). Here, all that was established was that one juror admitted reading the headline and he thought that others had also seen the headline. The headline itself was not prejudicial. It simply stated that a witness had refused to testify. The jury was already aware that the witness had not appeared after she was called as a witness.

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While the article itself was potentially prejudicial, there is no evidence that anyone read it. The defense was given an opportunity to question the jury. Unless we assume that each juror purposely lied to the court, we cannot find that the publicity prejudiced the jury against the appellants. The burden to show that a defendant had been unfairly treated is on the defendant. Marshall v. United States, 355 F.2d 999, 1007 (9th Cir.), cert. denied 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966). Here that burden has not been met.

5. Habeas corpus petition.

Pending this appeal, Noah filed a motion for a writ of habeas corpus. He contends that the method used to select the jury violated the Fifth and Sixth Amendments. Noah notes that of the approximately 200 odd veniremen only two were non-whites and that non-whites constitute 5.9% of the population of the Western District of Washington.

Since an appellate proceeding is...

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