U.S. v. Bernard

• Decision Date: 30 July 1980
• Docket Number: 79-1357,Nos. 79-1356,s. 79-1356
• Citation: 625 F.2d 854
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard Dale BERNARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph Maurice COMSTOCK, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 854

625 F.2d 854

UNITED STATES of America, Plaintiff-Appellee, v. Howard Dale BERNARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Maurice COMSTOCK, Jr., Defendant-Appellant.

Nos. 79-1356, 79-1357.

United States Court of Appeals, Ninth Circuit.

July 30, 1980.

Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., for plaintiff-appellee.

Robert H. Whaley, Winston & Cashsat, David W. Henault, Henault & Hancock, Spokane, Wash., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Washington.

Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, ^* District Judge.

DUNIWAY, Circuit Judge:

Bernard and Comstock appeal from judgments of conviction of conspiring to manufacture methamphetamine, a violation of 21 U.S.C. §§ 841 and 846. They were separately indicted and tried together. An unindicted co-conspirator, one Richard May, was the major witness to criminal activity on the part of the appellants.

We reverse and remand for a new trial.

I. The Facts.

In December 1977, on behalf of an agricultural research firm, Bernard ordered from the Physicians and Surgeons Supply House in Spokane, Washington some methylamine, a chemical that it is not unlawful to order, sell or possess, but that is used in the manufacture of methamphetamine, a controlled substance. The Drug Enforcement Administration (DEA) learned of the order and furnished the Supply House with a can in which a radio transmitter had been installed. The can was to be used as a container of Bernard's methylamine. No warrant was obtained for surveillance of the can. No evidence produced at trial involved Comstock in the ordering of the methylamine. No Supply House witnesses could identify Comstock at trial.

Two individuals, one of whom was identified as Bernard, retrieved the order in the can containing the beeper at Garrett Freight Lines in Lewiston, Idaho. Witnesses were unable to identify Comstock as the other of these men.

DEA agents attempted to maintain surveillance of the can by radio receiver after it was retrieved. They lost contact, but were later able to find the can through the use of a radio direction finder. Signals from the beeper were coming from the home of one Randy Wakefield in Clarkston, Washington. Wakefield testified that he was unaware of the type of chemicals the can contained and that Comstock and Bernard removed the can from his house. The location of the can was apparently lost again until it surfaced in Meacham, Oregon on March 28, 1978.

All other evidence supporting Bernard's and Comstock's involvement in the conspiracy comes from the testimony of May. He testified that the alleged conspirators (Comstock, Bernard, and others) began to manufacture methamphetamine at a ranch in Idaho, later moving the apparatus to a motel room in Clarkston, Washington. While the receipt for the room was in Comstock's name, the motel manager was unable to identify Comstock and the handwriting on the receipt and the motel registration was not shown to be his. An explosion in the motel room caused the alleged conspirators to move the apparatus to another location in Clarkston where additional efforts to manufacture methamphetamine were made. The remaining facts regarding the trial will be stated in our discussion of the issues to which they are relevant.

II. Failure of the District Court to give Requested Instructions.

May testified that at the time of the pertinent events he was taking substantial amounts of drugs. He said that he was "shooting" methamphetamines "20 times a day" around the clock, had been awake for approximately two weeks immediately before the events he described and had not eaten during that period, suffering a dramatic weight loss. He testified that the drugs "made (him) crazy" "not in (his) right mind." He further testified that he was experiencing hallucinations, that his perception of reality was distorted, and that his memory was fuzzy.

May testified that DEA Agent Fredericks told him that he would not be prosecuted for anything he had done if he would testify against his co-conspirators. This statement was corroborated by Fredericks. May admitted that he had received money from Fredericks for becoming an informant in the case.

The court refused, when requested, to instruct the jury with respect to the special caution and careful consideration to be used in judging the credibility of an accomplice who testifies. ¹ The defense made timely objection to the court's refusal to give this instruction.

In United States v. Davis, 9 Cir., 1971, 439 F.2d 1105, we held that refusal to give special instructions on the testimony of an accomplice when that testimony is important to the case can be prejudicial error. There the defendant's guilt rested almost entirely on the testimony of the accomplice, and the other evidence linking the defendant to the criminal activity was weak. Here it is true that there was other evidence about the activities of Bernard, but it dealt entirely with the methylamine, the can in which it was carried around, and the retrieval of the can by Bernard and another man. All of these activities were lawful. They became relevant as being preliminary to the planned manufacture of methamphetamine only because of the testimony of May, on the basis of which the jury could have found that these otherwise lawful activities were part of a scheme to commit unlawful acts. Accomplice testimony is "inevitably suspect" and unreliable. Bruton v. United States, 1968, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476. See also On Lee v. United States, 1952, 343 U.S. 747, 757, 72 S.Ct. 967, 973, 96 L.Ed. 1270; Crawford v. United States, 1909, 212 U.S. 183, 203-204, 29 S.Ct. 260, 267-268, 53 L.Ed. 465. Failure to instruct the jury in the manner requested was prejudicial error and requires reversal in this case. ²

The Government's theory that the summation arguments of the defendants' counsel adequately admonished the jury to consider accomplice testimony with caution is unpersuasive. A jury's response to instructions from the judge is, and should be, quite different from its response to arguments from counsel. Counsel's argument is neither law nor evidence, and the jury is so instructed. While it is not reversible error to fail to do so, in a case like this, it would be better for the trial judge to instruct the jury on accomplice testimony even if such an instruction were not requested. See United States v. Davis, supra, 439 F.2d at 1106; Bible v. United States, 9 Cir., 1963, 314 F.2d 106, 108.

The prejudice caused by a failure to give a cautionary instruction about accomplice testimony is increased when the witness' testimony may be considered otherwise unreliable. Defense counsel requested additional cautionary instructions because May was a paid informant, ³ was a drug addict, and was not prosecuted in return for his agreement to testify. ⁴ These requests were also refused. In United States v. Morgan, 9 Cir., 1977, 555 F.2d 238, 242-243, we discussed the use of multiple instructions regarding accomplice testimony and the testimony of paid informers or witnesses granted immunity. ⁵ We said that "there is no significant (difference) between a cautionary instruction on the testimony of an accomplice and a cautionary instruction on one granted immunity. In both instances, the jury is instructed that the testimony 'be received with caution and weighed with care.' " Id. at 243. We held that it did not matter which instruction was given, an accomplice instruction substantially the same as that quoted in footnote 1, or an informant instruction substantially the same as that quoted in footnote 4, supra. Nor do we find here a distinction between those instructions and Defendant's Proposed Instruction No. 21, footnote 3, supra. However, we suggest to the trial judge that, in light of the multitude of reasons justifying jury instructions regarding the credibility of May's testimony, it would be better, in a second trial, to give the jury an instruction combining these reasons.

May admitted at trial that he was a drug addict. The trial judge refused to give a requested instruction on the credibility of a drug addict. ⁶ Although refusal to give such an instruction, by itself, would not constitute reversible error, if the instruction we have suggested were given, we again suggest that the credibility of May's testimony is also affected by this factor and the trial judge would be wise to incorporate such a concept into the jury instructions he gives in a new trial.

III. Government Failure to Preserve Evidence.

Agent Fredericks was the DEA Agent who investigated the case and interviewed May in preparation for his becoming an informant and ultimately testifying against Comstock and his co-defendant Bernard. A pretrial motion was made to obtain any exculpatory material and any prior statements of witnesses. No statement of May was ever received. Upon cross-examination, when asked why he had never reduced May's statement to writing, Agent Fredericks said:

Normally in interviewing either an informant or a defendant over a period of time, a lot of times the facts will differ from one interview to the next; under legal guidelines, any notes which the agent or interviewer makes, the defense deserves to have those notes, so in trying to avoid contradicting facts from the interview of any defendant or any informant, it is my policy not to write down anything until I am sure the defendant or informant knows exactly what he is saying, and at that time I will make a report, or dictate a report on an IBM dictaphone and have that transcribed. That is to prevent any problems of getting into court and having contradictions from for instance an interview in March with an interview in July, with an interview in August, with an interview in September, and having the defense counsel come back and say "Well, did you say this differently at this time?" That is...