United States v. Sadler, 72-3797.
| Citation | 488 F.2d 434 |
| Decision Date | 17 January 1974 |
| Docket Number | No. 72-3797.,72-3797. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carl Eugene SADLER and Michael Alfred Brandes, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Murray M. Silver, Atlanta, Ga. (Court-appointed), for Michael Brandes.
Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Kerry J. Nahoom, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Before GODBOLD, DYER and GEE, Circuit Judges.
Appellants Sadler and Brandes were tried before a jury in the United States District Court for the Southern District of Florida and found guilty of conspiracy to possess with intent to distribute some 80 pounds of marijuana, in violation of 21 U.S.C. § 846. Upon considering their appeal to this court, we find only two contentions which merit comment: (1) that the jury charge on entrapment was improperly phrased in terms of "lawful" and "unlawful" entrapment, and (2) that the court erred in not allowing the defense to introduce evidence in surrebuttal. After deliberating these and other issues not herein discussed,1 however, we conclude that their convictions must be upheld.
We recognize that the court below did not heed our warning in United States v. Groessel, 440 F.2d 602, 607 (5th Cir. 1971), that utilization of such terms as "lawful entrapment" and "unlawful entrapment" may confuse the jury. But we also note that defense counsel failed to call this flaw to the court's attention. Instead he requested a lengthy and somewhat redundant series of instructions which placed undue emphasis on the entrapment defense and which themselves made reference to "unlawful entrapment." Under such circumstances we cannot say that the charge constituted plain error under Rule 52, Federal Rules of Criminal Procedure.
Appellants complain that the trial court erred in allowing the government to put its informer on the stand in "rebuttal" without permitting them to introduce evidence in "surrebuttal" to contradict and impeach his testimony. In order to evaluate this complaint, we begin with the general rule 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 discretion of the trial court. See Rodella v. United States, 286 F.2d 306, 309 (9th Cir. 1960), and cases cited therein. The court may properly decide that the prosecution should be allowed to rebut testimony by defense witnesses but that it should not be allowed to go into new matter which would prompt a surrebuttal by the defense. Indeed, this seems the most efficient manner of conducting, and terminating, a trial.
Prejudice occurs only if the prosecution witness goes beyond rebuttal and injects fresh issues on which the defendant is denied the right to present evidence. By objection, defense counsel should call to the court's attention that a prosecution witness is going into new material which, if admitted, raises questions of rebuttal by the defense. If defense counsel makes no such objection, but waits until the prosecution witness steps from the stand, the court may properly require him to point out the new matter covered and show how he intends to refute it. The objective is efficiently to conclude a trial when each side has had the opportunity to present his view of all issues fairly raised.
Here the government refrained from calling the informer who negotiated the deal until his testimony became necessary to rebut the picture painted by the appellants and their two co-defendants when they took the stand. His testimony covered the same course of negotiations as that of the defendants — differing only in his portrayal of their willingness to make the sale.
When defense counsel attempted to put on additional evidence, the trial judge faced a situation very similar to the one analyzed in Turner v. United States, 441 F.2d 736 (5th Cir. 1971). There the defendant had presented a vigorous alibi defense maintaining that he was not in the area...
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...goes beyond rebuttal and injects fresh issues on which the defendant is denied the right to present evidence." United States v. Sadler , 488 F.2d 434, 435 (5th Cir. 1974). Although our case law on surrebuttal is limited, this court has held that "where new matters are introduced in rebuttal......
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