Todd v. United States

• Decision Date: 03 May 1965
• Docket Number: No. 7983.,7983.
• Citation: 345 F.2d 299
• Parties: Bobby Dean TODD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

345 F.2d 299 (1965)

Bobby Dean TODD, Appellant, v. UNITED STATES of America, Appellee.

No. 7983.

United States Court of Appeals Tenth Circuit.

May 3, 1965.

Richard D. Lamm, Denver, Colo., for appellant.

Jack R. Parr, Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.

MURRAH, Chief Judge.

The appellant, Bobby Dean Todd, was convicted by a jury on all six counts of an indictment alleging the violation of three federal narcotics laws, i. e. 26 U.S. C. §§ 4744(a) (1), 4755(a) and 4742(a). He was sentenced, as a second offender, to fifteen years on each count to run concurrently. From a denial of his motions for new trial and reduction in sentence, appellant brings this appeal asserting prejudicial error in (1) the Court's refusal to give his requested cautionary instructions on the informer's testimony; (2) restriction of the cross-examination of the informer; and (3) failure of counts II, III, IV and VI to cite the specific statute alleged to have been violated. See Rule 7(c) F.R.Crim.P.

Though unwilling to outlaw government use of informers and their kin as "dirty business" in which the sovereign ought not to indulge, the Courts have recognized the serious questions of credibility inherent in the use of such witnesses. To make sure they are properly identified for what they are in the scheme of the administration of criminal justice we allow wide latitude in cross-examination and submit the issue of credibility "to the jury with careful instructions." See On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 96 L.Ed. 1270.¹ Thus, if the incriminating testimony of an informer is uncorroborated or unsubstantiated, special cautionary instructions are surely required. See Orebo v. United States, 9 Cir., 293 F.2d 747; Joseph v. United States, 5 Cir., 286 F.2d 468; United States v. Masino, 2 Cir., 275 F.2d 129. If such testimony is corroborated in critical respects, we nevertheless favor careful instructions in form and substance calculated to call attention to the character of the testimony of the informer, leaving to the jury the ultimate question of value and credibility. There is no ritual of words, and abstract instructions are usually beamed to the appellate court rather than to the jury. The sufficiency of the instructions depends upon other incriminating circumstances of the case tending to corroborate the informer. See Dunn v. United States, 318 F.2d 89, 93; Joseph v. United States, supra.

In our case the informer testified that two or three days prior to Saturday, November 30, 1963, he had a conversation with appellant in which he asked "if he could get some (marijuana) and he said yes, but it would be Saturday before he could get it." There was corroborative evidence to the effect that on the day the sale was to take place, the informer called a Federal Narcotics Agent and told him about the offer. Later that day, the agent and an Oklahoma City Police Officer came to the informer's house, searched him and gave him a $20 bill. The informer then called appellant and told him he "had the money for the marijuana and if he would come over I'd give it to him". According to the informer, appellant answered that "he would be over". The officers and informer waited in the informer's house until immediately before appellant arrived when the officers stepped into a back room, apparently where they could not hear the parties' conversation. The informer testified that appellant stated it would be several hours before he could get the marijuana, and they made arrangements to meet later at a "lounge" where the sale would take place. As soon as the appellant left, the officers again seached the informer thoroughly and found that he did not have the $20 bill.

Later the same evening the informer went to the "lounge" while the officers remained in a parked automobile near the entrance. The informer testified that inside the lounge he told the appellant he would rather not take the marijuana there because "they were having trouble and I was afraid the police might come"; that they walked outside the bar and "I told him I'd go to my house and for him to meet me there in about thirty minutes." At that time the officers were parked approximately 30 feet away. The informer then started to his house, and when he arrived the officers were waiting. They all went into the house and the informer was again searched. The informer then called for appellant at the lounge, but was unable to contact him. After having appellant paged, the informer talked to a Goerge Maxey who, after a short time, drove up in front of the informer's house and honked the horn. The officers observed the informer leave the house and go across the street to Maxey's car where he received a "package". Almost immediately thereafter, appellant arrived in another automobile, and the officers heard appellant ask the informer if he "got it". After the two cars left, the informer returned to the house and handed the officers a tobacco can, the contents of which was later found to be marijuana.

As to the second transaction, the corroborated evidence was to the effect that on the afternoon of January 4, 1964, the informer again contacted the Federal Narcotics Agent concerning appellant's offer to sell him marijuana. That evening the agent and another officer went to the informer's house and gave him another $20 bill. They all waited...