U.S. v. Bell

Decision Date01 November 1974
Docket NumberNos. 72-1518,72-2209,s. 72-1518
Citation165 U.S. App. D.C. 146,506 F.2d 207
PartiesUNITED STATES of America v. Willie BELL, Appellant (two cases).
CourtU.S. Court of Appeals — District of Columbia Circuit

Leonard I. Rosenberg, Washington, D.C., for appellant.

Stuart M. Gerson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., and Herbert B. Hoffman, Asst. U.S. Atty., at the time the brief was filed, were on the brief, for appellee. Harold E. Reukauf, Asst. U.S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

A jury found Willie Bell guilty of two federal narcotic offenses 1 and, additionally, of carrying a pistol without a license. 2 On these appeals, one from the judgment of conviction 3 and the other from denial of a motion for a new trial, 4 Bell argues a number of grounds for reversal. 5 In this opinion we consider, in varying detail, each of his contentions, and for reasons articulated we affirm.

I. THE FACTUAL BACKGROUND

We begin with a recital of the highlights of the Government's evidence at Bell's trial. Bell and two others, Willie Cardwell and Freddie Davis, were suspected of trafficking in narcotics. 6 In a coordinated effort to execute a search warrant on them, a group of plainclothes police officers undertook a stakeout of Fisherman's Wharf, on the Washington Channel in Southwest Washington. Officer Charles A. Miller, who previously had monitored the suspects' activities at the wharf and elsewhere, 7 functioned as coordinator for the group; from East Potomac Park, directly across the Channel, he kept the wharf under observation through binoculars. Three officers patrolled the Channel in a boat just offshore, while three others were stationed in a position overlooking the wharf area. Communicating by radio, the officers awaited the suspected arrival of the three subjects.

Cardwell and Davis came first, and went on Pier 1 with fishing tackle and paper bags. Shortly thereafter, they were seen exchanging a tinfoil packet for money handed to them by an unidentified man. Bell, also carrying a bag, made his appearance on the pier somewhat later. As soon as Officer Miller sighted all three men, he alerted his fellow officers, joined them at the wharf, and led them onto Pier 1.

As Officer Miller announced his identity, Bell and his companions endeavored to dispose of the contents of the bags. Bell tossed four tinfoil packets over his shoulder into the Channel. Davis kicked into the water another bag of packets, and Cardwell threw overboard still another bag from which more tinfoil packets spilled. By this time, however, the officers cruising the Channel had moved in, and with Officer Miller pointing out the floating bags and packets, 8 they retrieved them with a net. Two more packets were found on the pier in a barrel beside which Bell was standing.

The three subjects were placed under arrest and searched. Bell was carrying a loaded pistol, over $1,500 in cash and an envelope containing marijuana. 9 In each of the six tinfoil packets attributed to Bell was a powder containing heroin, and in four of them the heroin content was unusually high. 10 None of the packets bore federal tax stamps, 11 nor did Bell have a permit to carry the pistol. 12 In due course, Bell, Cardwell and Davis were jointly indicted; the latter two pleaded guilty, but Bell stood on his plea of not guilty and went to trial.

That, in the main, was the Government's case. 13 Bell's defense was that at no time did he possess any of the packets. He testified that he went to the wharf with a friend 14 to purchase fish, stopping first at the stands to browse and then to chat with Cardwell and Davis on the pier. As he was making his way back to the front of the pier, Bell said, he was met by the onrushing policemen who yelled 'freeze,' and he immediately obeyed the order. Bell stated that the money he had was to be used in a business venture, 15 and avowed that he had nothing to do with the narcotics trade.

The jury accepted, for the most part, the Government's evidence and convicted. 16 Following return of the verdict, the trial judge heard argument on Bell's in-trial motion, on which the ruling had been reserved, for dismissal of two counts of the indictment. The motion was based on the Government's refusal to reveal the identity of an informant who participated in a transaction which the Government used to rebut testimony by Bell that he was unfamiliar with narcotics. 17 In a written opinion, the judge denied the motion. 18 Shortly thereafter, Bell engaged new counsel who moved for a new trial on several additional grounds. 19 The judge held an evidentiary hearing on that motion and, in another opinion, denied it also. 20 The case was then brought here for review.

II. BELL'S IMPEACHMENT

Bell was the first witness for the defense. Questioned on cross-examination as to whether Cardwell and Davis were selling drugs on Fisherman's Wharf just prior to their arrest, Bell testified that he had never seen narcotics except on television. 21 In rebuttal, the Government recalled its star witness, Officer Miller, to recount a drug sale allegedly made by Bell a few days prior to his arrest. According to Officer Miller, on that occasion he and another officer completely strip-searched an informant to make certain that he had no drugs on his person, and provided him with police funds to undertake a purchase from Bell. Officer Miller then took the informant to the wharf and, keeping him in sight at all times, watched him buy a 'halfspoon' of a substance which, as indicated by a field test, contained a narcotic drug of the opiate group.

On cross-examination of Officer Miller, Bell's counsel sought the name of the informant. The trial judge overruled the Government's objection to that effort, but Officer Miller could recall only that the informant's nickname was 'BoBo.' The officer stated that he could furnish the informant's surname on the next court day.

When trial resumed, however, the Government announced that it would not identify the informant further. The trial judge expressed the feeling that disclosure of the informant's full name might be in the interest of a fair trial, but after hearing argument he decided to hold his ruling in abeyance pending return of the jury's verdict.

After the jury found Bell guilty, counsel filed briefs and presented oral argument on a motion to dismiss the narcotic counts because of the Government's refusal to name the informant. The trial judge found the Government's argument persuasive, and in a written opinion ruled that the Government need not make the disclosure. 22

Bell's complaint with respect to Officer Miller's rebuttal testimony is twofold. Firstly, he asserts that it was error to allow the officer to say anything about an alleged drug transaction which was not charged in the indictment on trial. 23 Secondly, he argues that the trial judge's refusal to require the Government to specify the identity of the informant utilized in that transaction was likewise erroneous. We consider, and reject, each of these contentions in turn.

A. The Mode of Impeachment

The first prong of Bell's attack on the rebuttal testimony advances the familiar principle that evidence indicating an accused's complicity in another crime is normally to be excluded 24 in the interest of avoiding the possibility that the verdict on guilt or innocence will be influenced thereby. 25 This rule is, however, subject to exception in situations wherein the evidence serves 'some substantial, legitimate purpose,' 26 and an attempt to impeach the accused as a witness may be just such a purpose. 27 But, as we have sternly admonished, 'an inexorable requirement, obtaining as to all evidence unveiling another offense, is that its probative virtues must outweigh its prejudicial proclivities.' 28 The initial question which Bell raises is whether the incident to which Officer Miller testified met that requirement. 29

On his direct examination, Bell said in effect that his only activity with Cardwell and Davis on Pier 1 shortly prior to arrest was conversation. Asked on cross-examination whether they 'were selling any narcotics down there.' Bell answered that he had 'never seen any of them.' 30 Two further questions by the prosecuting attorney brought out that Bell intended that answer to convey precisely what it had seemed to say-- that Bell had never seen real narcotics. 31

We are unable to distinguish this testimonial episode from one before the Supreme Court in Walder v. United States. 32 There the accused, indicted similarly to Bell, 33 'of his own accord . . . went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics.' 34 The Court upheld impeachment of that claim by rebuttal testimony revealing the accused's possession on another occasion of a one-grain capsule of heroin. 35 So important to the accused's credibility was that testimony that the Court approved its admission although, unlike anything in the case at bar, the Government had come by the capsule in the course of an illegal search. 36

We think the same result follows here. We have been advertent to our obligation to apply Walder within its prescribed limits, which encompass the use even of tainted evidence to impeach exhorbitant testimonial claims volunteered by an accused on trial. 37 Surely our obligation is not diminished by the circumstances that the evidence here is untainted, or by any notation that Walder was insensitive to the competition of probative value and potential prejudice. 38

In the instant case, Bell represented himself not only as an industrious businessman on Pier 1 merely to buy fish and chat with friends,...

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