U.S. v. Brown

• Decision Date: 31 January 1977
• Docket Number: No. 75-2810,75-2810
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlander Raymond BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 166

546 F.2d 166

UNITED STATES of America, Plaintiff-Appellee, v. Orlander Raymond BROWN, Defendant-Appellant.

No. 75-2810.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1977.

Perry Hubbard, Tuscaloosa, Ala., for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., James C. Thomason, III, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

Orlander Raymond Brown was convicted of making and causing to be made false entries in certain books, records, and statements of the First National Bank of Tusk aloosa, 18 U.S.C. Section 1005. ¹ He was sentenced to a term of five years, six months to be served and the remainder on probation. Before Brown went to trial, his accomplice in the activity, Phillip A. Hargle, entered his plea of guilty and was the star witness for the prosecution. For reasons enunciated by the District Court, imposition of sentence was suspended as to Hargle and he was placed on probation for five years.

After hearing testimony which filled 779 pages of typewritten transcript, the jury deliberated 54 minutes before returning a guilty verdict.

The trial was not free of error, but finding those errors to have been harmless beyond a reasonable doubt, we affirm the Judgment of the District Court.

For the period charged in the indictment, May, 1973-August 2, 1974, Hargle was assistant cashier and head teller of the bank. Under the scheme for which appellant was convicted, Brown would "cash" checks at Hargle's window, who would then hold the checks out of the normal bank channels until the defendant told him to go ahead and process them. In various ways, he had made numerous false entries to cover his tracks. In exchange for this, defendant gave Hargle "meats and vegetables, a new Buick, and $500-$600." However, there came a time when there were 41 Brown "checks", totaling $275,000, which Brown could not cover. Hargle confessed to bank officials. This prosecution ensued.

Appellant depends for reversal on two arguments: (1) The trial court erroneously and prejudicially restricted cross examination of Hargle concerning his motivation for appearing as a government witness; (2) The government was permitted in its closing argument to obliquely comment on the failure of the defendant to take the witness stand in his own behalf.

Point Number 1

This issue is sharpened by the fact that without Hargle's testimony the government could not have made out its case.

The transcript reveals that this is what happened:

Q. (By defense counsel) Mr. Hargle, Mr. Batchler (the assistant U. S. Attorney) asked you whether or not you entered a plea of guilty in this case and I believe you have indicated you have?

A. Yes, sir.

Q. And when was that plea of guilty entered?

A. I don't remember the date. It was in Judge McFadden's court in Birmingham.

Q. Approximately how long ago?

A. A month and a half or two months ago.

Q. And were you sentenced at that time?

A. No, sir.

Q. Are you now awaiting sentence?

A. Yes, sir.

Q. Have you been advised by your attorney as to what sentence, if any, you may expect?

A. Yes, sir.

Q. All right. Were you advised by your attorney of the recommendations of the probation officer, Mr. Perry Mathis?

MR. BATCHLER: Don't answer that, we object to that, if Your Honor please, whether he was advised by any probation officer or anything else.

THE COURT: Sustain.

MR. HUBBARD: We except. If I may I would like to make an offer to show and I can do it at the bench.

THE COURT: All right, I will give you the opportunity to do it.

(Following proceedings were had outside the hearing of the jury.)

MR. HUBBARD: I offer to show the recommendations of the probation officer was that he be placed on probation and be so advised.

MR. BATCHLER: This is not a matter for the jury and it goes to matters covered by the court.

THE COURT: I think the report made to me was that you agreed upon a recommendation between the prosecutor and the defense counsel that upon a plea of guilty they would recommend to the court a specific sentence. I don't have a specific recollection of the report. I do remember taking the man's plea but the record will show I am sure I inquired about that but the probation office report or the pre-sentence report made to the court is not made available to either the prosecutor or the defense counsel except such part the court might decide to be revealed to them and if the probation officer has made a recommendation the only way the lawyers would know about it is that the court revealed that in a conference. My recollection is not clear as to whether I did that or didn't. My recollection is that I didn't.

MR. HUBBARD: Let me state this: When this matter came up at the pre-trial before the Magistrate both counsel represented at that time and it is my recollection that Mr. Thomason stated at that time that the probation officer had recommended probation for this defendant. I stand to be corrected but this is my recollection.

MR. BATCHLER: Judge, we want to state that during the course of the trial whether that occurred or didn't occur is not part and parcel of any

THE COURT: I assume what he is trying to do is to show that this man has agreed to plead guilty in return for the recommended sentence of an unknown quantity and that now he is testifying on behalf of the Government.

I will sustain as far as any recommendation of the probation officer. The recommendation of the probation officer in the final analysis is not any part of the plea bargaining.

THE COURT: Well, as far as the recommendation of the probation officer as such I will adhere to the original ruling and sustain the objection.

MR. BATCHLER: Will you grant my request that the question should no way be considered? It is very prejudicial for him to ask about the pre-sentence report and to mention the probation part.

THE COURT: I will give them instructions.

(The following proceedings were held within the presence and hearing of the jury.)

THE COURT: Ladies and Gentlemen, you will recall I am sure an instruction I gave you at the commencement of the trial that in the event the Court sustains an objection you are not to speculate on what the answer would have been had the Court permitted the question to be answered. It is the Court's judgment that whether or not any recommendation made by the probation officer, what that recommendation was is totally irrelevant to the issues we will ultimately be called upon to decide.

Either side wish an exception to that instruction?

MR. THOMASON: No, sir.

MR. HUBBARD: No exception to the instruction but I do except to the Court's ruling.

Our Appraisal

Viewed from the appellate perch it would appear that in the heat of the fray all the actors lost sight of the mark. For example, when Hargle told defense counsel that he had been advised as to what sentence to expect, he was not asked to state the expectation. Instead, he was asked if he had been advised of the recommendations of the probation officer, which might, or might not, have had any relevancy to an expectation of leniency. Indeed, Hargle might have denied that knowledge.

In the total context of this trial it would not take on the proportions of a major point. Yet, the prosecution rushed in as if it were a highly significant matter and prevailed on the trial judge not only to sustain the objection but to accentuate the matter by instructing the jury that any recommendation by the probation officer was totally irrelevant. This would have been faultlessly correct only if Hargle was ignorant of the recommendation or if there had been no recommendation of leniency.

Right to Confrontation of Witness

Manifestly, the right of an accused to cross examine the witnesses against him is embodied in the confrontation clause of the Sixth Amendment, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Indeed, "cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested," Ibid., 415 U.S. at 316, 94 S.Ct. at 1110.

Although the scope and extent of cross-examination is generally declared to be within the sound discretion of the trial court and not to be interfered with by an appellate court absent an abuse of discretion, Grant v. United States, 5 Cir. 1966, 368 F.2d 658, 661, that discretion must be exercised with due regard for the defendant's constitutional rights. Specifically, it is an abuse of discretion and a violation of constitutional rights to deny to a defendant the right to cross-examine a witness at all on a "subject matter relevant to the witness's credibility", such as the witness's possible motive for testifying falsely. Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. 1105.

An accused is entitled to show by cross-examination that the testimony of a witness may be affected by fear or favor growing out of the disposition of pending criminal matters. Alford v. United States 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). As the Alford Court stated:

Prejudice ensues from a denial of the opportunity to . . . put the weight of (a witness's) testimony and his credibility to a test, without which the jury cannot fairly appraise them. (cases omitted.) To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial (cases omitted).

282 U.S. at 692, 51 S.Ct. at 219.

When the witness being subjected to cross-examination is the "star witness", or was an accomplice or participant in the crime for which the defendant is being prosecuted, the importance of cross-examination is necessarily magnified. Beaudine v. United States, 5 Cir. 1966, 368 F.2d 417, 424. In Grant v. United States, 5 Cir....