Johnson v. Brewer
| Citation | 521 F.2d 556 |
| Decision Date | 24 September 1975 |
| Docket Number | No. 74-1944,74-1944 |
| Parties | Fred Andrew JOHNSON, Appellant, v. Lou V. BREWER, Warden, Fort Madison Penitentiary, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
C. A. Frerichs, Waterloo, Iowa, for appellant.
Tom McGrane, Asst. U. S. Atty., Des Moines, Iowa, for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, * Senior District Judge.
The petitioner before us was convicted in the Iowa District Court for Black Hawk County of possession of heroin with intent to deliver. 1 His conviction was affirmed by the Supreme Court of Iowa. 2 Petitioner (hereafter defendant) subsequently brought a petition for writ of Habeas corpus, 3 denied by the District Court, Northern Division of Iowa, from which denial appeal is taken to this court.
The sole witness to the alleged crime was one Roosevelt Nabors, a/k/a Alvin Banks. Nabors testified that he arranged for, and then witnessed, a sale between defendant and one Glenn "Bubba" Phillips.
Nabors, the record discloses, was a professional informant. He has, he testified, "worked throughout the State of Michigan," in Canada, in New York, and in Ohio. He met with police officers and narcotics agents in Chicago in answer to "a flier out from the State of Iowa, requesting an undercover, and we was answering the flier." After a conference concerning working in Iowa he proceeded, with agents and his "girl friend" to Waterloo, Iowa. There he was shown pictures of suspects and it was suggested to him that defendant might be one of them. His assigned duties were to become known in black and white neighborhoods, "develop information and, if possible, make purchases, make buys of hard drugs, which is known as heroin."
His compensation did not depend upon the cases he "made" but covered his living expenses, "food, rent, (and) so forth," including those of his female companion, the total amounting to some twelve hundred dollars in this case, plus "help" on occasion with the expenses of a car he had obtained. What his local employment arrangements were, besides his undercover work, are not clear from the record, since objection to a question as to the details of Agent (not to be confused with defendant) Johnson's conceded "dealings" with the informant's employer was sustained. In addition the informant had opportunity, of which he availed himself, of making a little money on the side. Thus he received $200, unreported to his superiors, for introducing "people (who) wanted to buy some heroin" to "a guy that was in this line of business."
The principal issue before us concerns his attempted impeachment. He testified that immediately prior to his coming to Iowa he had worked in Muskegon, Michigan, and that his Modus operandi, save as to the quantity of heroin bought, there was basically as in Iowa. In Muskegon, he testified, he had made a "buy" from one Matt Durda, Jr., and had so informed the authorities. After more foundational questions defendant then made an offer of proof, set forth In extenso in the margin hereof. 4 What he offered to prove in substance was that the Muskegon case was a "frame-up" 5 by this informant-witness and that the Muskegon County Attorney had accordingly moved the court for dismissal of the charges. 6 The offer of proof was rejected by the trial court on the ground that it was immaterial, and a collateral matter, concerning which extrinsic testimony was not admissible. The defendant argues that, under these unique facts, the foreclosure of his defense as to the alleged mendacity of the informant went far beyond mere "error" as to the introduction of evidence but was so gross and decisive as to amount to a deprivation of due process.
We here consider, then, the unique problems presented by the testimony of the paid informer. His employment has been the subject of extensive commentary, little or none of it approbative. 7
That his motivation may well be to make good in his employment by producing violators is commonly known. As we stated in United States v. Barnes, 486 F.2d 776, 780 (8th Cir. 1973): 8
The practice of the Government in employing agent-informers in narcotics cases is well known. We also know that such agents are usually not trained officers often they are themselves addicts or former addicts. The Government must know that an eager informer is exposed to temptations to produce as many accuseds as possible at the risk of trapping not merely an unwary criminal but sometimes an unwary innocent as well. One could hardly expect such informants always to stay on the proper side of the line which separates those two cases. And since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished. (Footnote omitted.)
These motivations have their origins in the considerations which impel a man who is essentially "anti-social, or at best anti-police 9 to give the authorities his cooperation. Such have been described by agents experienced in this field, as, among others,
The fear motive. * * * (W)e might expect an emotional reaction favorable to our investigative objective, if we have a prospective informer who is afraid of something. This could be fear of any one of many things, or several of them. Our informer might be in fear of the law. This, again, might represent one of many possible conditions. Let us say that he is under arrest, possibly under indictment and facing charges. It is one of the practical facts of law enforcement that under such conditions the accused, looking for sympathy, extenuation, mitigation, or whatever he thinks might improve his lot, is often disposed to give a full account or at least some account of his crimes or those committed by others within his knowledge. He thereby may furnish us with direct evidence against other criminals or show us how such evidence might be obtained. Where such disclosures involve higher-ups or implicate numerous other defendants, this sort of development is very much to the advantage of law enforcement and organized society. It is almost the universal practice of the police, prosecutors and courts to recognize the valuable assistance to law enforcement in this attitude of the informer. This recognition is usually translated in a practical manner as a recommendation for a lesser sentence, a more favorable consideration for parole or probation, the acceptance of a plea to a lesser account in the indictment or through some other favorable action within the discretion of the prosecution. 10
That such motivations tend to probity and credibility rather than "to produce as many accuseds as possible" is a highly debatable conclusion. Particularly is this true in view of the circumstances, again relying upon Harney and Cross, as well as our own judicial experience, that "Many of them (informers) are unsavory characters. Some might even be termed despicable * * *. 11 Judge Waterman, concurring in part and dissenting in part in United States v. Cimino, 321 F.2d 509, 514 (2nd Cir. 1963), Cert. denied, 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964), recognized this problem in a perceptive comment to the effect that:
Seldom can government informers be expected to be pillars of stability in their communities. If the common understanding is to be credited they are often narcotic addicts or petty criminals whose cooperation with law enforcement officials is not entirely voluntary.
If, then, as we so often hear in argument, and as is argued in this case, "unsavory characters" are hired because of sheer necessity, the corollary is clear: that as the Mala fides of the government's agent increase, the care with which he is used, his surveillance by responsible personnel, and his corroboration, become increasingly necessary, lest he pay his way with the coin of conviction by whatever means obtained.
The offer here made was thus to show that the informant before the court and jury was completely insensitive to the obligations of his oath and that from motivations the origin of which we can only surmise, but nevertheless apparently existent, he had, as demonstrated in a parallel case, neither compunction nor scruple against "framing" a man. We have difficulty in envisioning a situation responding more completely to the orthodox test of bias, the quality of emotional partiality. 12
The only case we have found on reasonably parallel facts, involving alleged false testimony by an undercover agent is the case of Hutchings v. State, 518 P.2d 767 (Alaska 1974). In this case undercover agent Clements testified that he was introduced to defendant Hutchings by another undercover agent, Hofhines, and that Hutchings sold him, Clements, the drug. Hofhines, however, at the trial, denied that Hutchings was the man she introduced to Clements. The defendant then sought to show upon cross-examination that Clements was a discharged policeman who was motivated by a desire to be reinstated to the force and was seeking to demonstrate both his effectiveness and his help to the prosecution. Objection as to immateriality was sustained. The Supreme Court of Alaska reversed on the ground that undue restriction of investigation of bias was an abuse of discretion which required retrial. The court held that Clements' hope for reinstatement to the police force could serve as a powerful motive to shade his testimony, either unconsciously or intentionally. The court went on:
There are no special rules of "proper impeachment" for bias. The credibility of witnesses is always a material issue, so the only question of materiality or relevance when evidence is offered to impeach for bias is whether the evidence tends in reason to demonstrate the existence of...
To continue reading
Request your trial
-
Beaty v. Com.
...from presenting evidence that jealous husband had "opportunity, ability, and motive to commit the crime."); cf. Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir.1975) (reversing because trial court excluded defendant's evidence attempting to prove that the government's informer and witness had......
-
U.S. v. Powers
...under state evidentiary rules may deprive a defendant of a fair trial and amount to a denial of due process," Johnson v. Brewer, 521 F.2d 556, 562 n. 16 (8th Cir. 1975). Powers claims that publication of his testimony would endanger his life. Therefore, publicity would deter him from puttin......
-
U.S. v. Capozzi
...testimony of bias. Facts showing bias are not collateral, and an examiner, of course, is not bound by the answer. Johnson v. Brewer, 521 F.2d 556, 562 n. 13 (8th Cir.1975); see also Corbin, 734 F.2d at 655; United States v. Ray, 731 F.2d 1361, 1364 (9th Appellant suggests that Martin's test......
-
Moynahan v. Manson
...inferences . . .," and the denial of this right was likewise a denial of the sixth amendment right of confrontation. Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975). B. Although the petitioner raised the issue of denial of cross-examination on appeal, the Connecticut Supreme Court refused t......