U.S. v. Glover

• Decision Date: 12 December 1978
• Docket Number: 267,266,D,Nos. 246,247,s. 246
• Parties: UNITED STATES of America, Appellee, v. John GLOVER, Val Irick, Cornelius Reed, Defendants-Appellants. ockets 78-1183, 78-1239, 78-1240, 78-1241.
• Court: U.S. Court of Appeals — Second Circuit

Page 876

588 F.2d 876

UNITED STATES of America, Appellee, v. John GLOVER, Val Irick, Cornelius Reed, Defendants-Appellants.

Nos. 246, 247, 266, 267, Dockets 78-1183, 78-1239, 78-1240, 78-1241.

United States Court of Appeals, Second Circuit.

Argued Oct. 12, 1978.

Decided Dec. 12, 1978.

Federico E. Virella, Jr., Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Robert J. Jossen and Howard W. Goldstein, Asst. U. S. Attys., New York City, on the brief), for appellee.

Stephan H. Peskin, New York City, for defendant-appellant John Glover.

Patrick T. Burke, Suffern, N. Y. (Miele, Burke & Whitman, Suffern, N. Y., on the brief), for defendant-appellant Val Irick.

C. Joseph Hallinan, Jr., New York City, for defendant-appellant Cornelius Reed.

Before LUMBARD and OAKES, Circuit Judges, and MacMAHON, District Judge. ^*

PER CURIAM:

John Glover and his co-defendants Val Irick and Cornelius Reed appeal from their convictions after a two week trial before Judge Palmieri in the Southern District on charges of conspiracy to violate the narcotics laws. We affirm.

The conspiracy involved a network for the distribution of heroin extending from its principal situs in New York City to such distant points as Los Angeles and Daytona Beach. At the center of this network were Willie Lee Hardy and Phyllis Scott, partners in both crime and romance, and the government's primary witnesses at trial. Hardy, a confessed trafficker in heroin of some ten years experience, was the true hub of the conspiracy, dealing with the present appellants variously as a purchaser, transporter and seller of heroin.

Glover contends that the trial court abused its acknowledged discretion regarding the scope of cross-examination by forbidding questioning of Scott concerning psychiatric treatments she received some twelve years prior to trial. Alleging that the psychiatric treatments were prompted by various romantic setbacks, Glover argues that they indicate Scott's imbalance in such matters and suggest that she may have shaded her testimony in favor of her paramour Hardy.

We find no error in the trial judge's limitation on cross-examination. After examining Scott's psychiatric records and questioning Scott outside the presence of the jury, Judge Palmieri concluded that Scott's prior psychiatric episode did not affect her competence as a witness and was not otherwise relevant to any substantive issue at trial. Given the broad discretion that is accorded to the trial judge in such matters, the remoteness in time of the psychiatric treatments, and the clearly tenuous connection that is asserted to exist between those treatments and Scott's present reliability as a witness, we see no reason to question that judgment. Cf. United States v. Green, 523 F.2d 229, 237 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976). We note, in addition, that Glover was permitted to cross examine Scott extensively concerning matters that might have affected her credibility as a witness, including her relationship with Hardy. In sum, there is no basis for concluding that the trial judge's ruling was erroneous or that it resulted in prejudice to Glover.

Glover also contends that the trial court's sentence imposing upon him the costs of prosecution abridges his right under the Fifth Amendment to remain silent and not plead guilty as well as his Sixth Amendment right to a trial. 28 U.S.C. § 1918(b), the statute authorizing the imposition of costs, provides:

"Whenever any conviction for any offense not capital is obtained in a district court, the court may order that the defendant pay the costs of prosecution."

The government has urged that § 1918(b) does not in any way punish the exercise of a defendant's right to stand trial and not plead guilty since the statute by its terms authorizes the imposition of costs for any convicted defendant, including those who plead guilty. This argument seems wide of the mark, however, since it does not appear that the costs assessed under § 1918(b) include any pretrial expenses. ¹

But even assuming that the statute has no practical application to the convicted defendant who has pled guilty, we cannot agree that § 1918(b) impinges on a defendant's right to deny guilt and stand trial. If the statute directed that costs of prosecution be assessed against all convicted defendants, there would be some basis for concern that it served to "chill the assertion of constitutional rights by penalizing those who choose to exercise them." Fuller v. Oregon, 417 U.S. 40, 54, 94 S.Ct. 2116, 2125, 40 L.Ed.2d 642 (1974), citing United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). Clearly, however, § 1918(b) does not operate in that fashion. It directs only that costs May be assessed, and thus leaves to the sound discretion of the district court the determination of whether the government may recoup the expenses it has incurred by prosecuting a defendant. Since the defendant's ability to pay will, as it was in the instant case, ² be a paramount factor in determining whether the imposition of costs is appropriate, § 1918(b) does not impinge upon the right to stand trial but simply "depriv(es) a financially able defendant of available funds which, in fairness, should be remitted to the public coffers." United States v. Bracewell, 569 F.2d 1194...