U.S. v. Lee, 72-1932

• Decision Date: 09 December 1974
• Docket Number: No. 72-1932,72-1932
• Citation: 506 F.2d 111,165 U.S.App. D.C. 50
• Parties: UNITED STATES of America v. Lioyd LEE, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 111

506 F.2d 111

165 U.S.App.D.C. 50

UNITED STATES of America v. Lioyd LEE, Jr., Appellant.

No. 72-1932.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 10, 1973.

Decided Oct. 2, 1974, Rehearing or Rehearing En Banc Denied

Dec. 9, 1974.

Bernard Koteen, Washington, D.C., (appointed by this Court) for appellant.

Stuart M. Gerson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S atty., John A. Terry, and John E. Drury, III, Asst. U.S. Attys., were on the brief for appellees.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit judges.

LEVENTHAL, Circuit Judge:

This is an appeal following appellant's conviction for possession of a short-barreled shotgun that was unregistered and without serial number, in violation of 26 U.S.C. 5861, 5871, and possession of cocaine, heroin, and marijuana with intent to distribute, in violation of 21 U.S.C. 841(a). The central issue is whether there was reversible error because the trial court refused a special instruction concerning the particular interest of the principal prosecution witness as accomplice or informant. We affirm.

I. STATEMENT OF FACTS

Authorized by a search warrant, Federal agents ¹ and metropolitan police officers forced entrance, on November 24, 1971, into the then unoccupied apartment B-4 at 4920 A. Street, S.E. During a lengthy search, officers discovered a short-barreled shotgun with a pistol grip underneath and to the rear of a stereo cabinet located in the living room. They also seized $3000 in cash 'from the sofa cushions located in the front room.' Throughout the apartment were found various articles commonly used in adulterating and packaging narcotics for sale, including measuring spoons, strainers, aluminum foil, glassine bags, two playing cards and several cans of dextrose. Most important was the discovery of significant quantities of illicit drugs. A large amount of cocaine was removed from the kitchen table; a somewhat smaller batch of cocaine was found underneath a bed; an envelope containing marijuana was found on a nightstand; and in a second bedroom, heroin was found both on the floor and in a coat hanging in the closet.

Appellant was the lessee of the A Street apartment throughout 1971. From some point in late September until October 18, the apartment was occupied, with appellant's permission, by Roland Henry and Faith Elaine Wise, both then fugitives from justice.

At trial the Government presented the items seized in the apartment, testimony of the Government's expert as to the high concentration and 'street value' of the confiscated drugs (contradicted in part by appellant's witness), and the testimony of Ms. Wise.

Faith Wise testified that while she and Roland Henry occupied the apartment appellant visited daily to socialize, to carry out his shopping for the couple, and to 'snort' drugs with them. At no time did she see a sawed-off shotgun in the apartment.

As to the drugs found in the apartment she testified: On October 16, 1971, she and Mr. Henry acquired a half kilogram of heroin and an eighth of a kilogram of cocaine. When they departed on the 18th, they took $120,000 in cash and left behind no money, but five 'pieces' ² of heroin and three 'pieces' of cocaine for appellant to sell, under an understanding that some of the profits were to be turned over to Henry, and appellant was to keep the rest. ³

Appellant admitted he had rented the A Street apartment. But he insisted a flood forced him to move out in July, 1971, and that he subsequently never spent any evenings there. He conceded that he had left all his furniture at the apartment and had returned frequently to change his clothing.

Appellant also testified as follows: Henry and Ms. Wise stayed at appellant's apartment from September until the end of October, 1971. Henry contributed money for rent while he occupied the apartment. Appellant went to the apartment one or two times per week during Henry's stay. He admitted using cocaine with Henry and Ms. Wise and seeing a large quantity of drugs. He denied, however, that any narcotics were left with him; denied having seen the sawed-off shotgun; and denied ownership of both the coat in which the heroin was found and the narcotics paraphenalia. He did state that he had returned to the apartment on 'an average of twice a week' after Henry and Ms. Wise had left (Tr. 389); but he testified that he thought that Henry and Wise were going to return to the apartment, so he left everything as it was when they went.

II. SUFFICIENCY OF INQUIRY INTO AND INSTRUCTIONS ON SPECIAL INTEREST OF PROSECUTION WITNESS

A. Trial Court Developments

1. Testimony of prosecution witness

It was brought out at appellant's trial that Ms. Wise, after leaving appellant's apartment, was arrested on November 1, 1971, in Albuquerque, New Mexico, and charged with possession of heroin, cocaine, marijuana, methadone, and demerol. She pleaded guilty to one count of possession of marijuana with intent to distribute, and received a sentence for five years' imprisonment. She testified that she made no agreements with anyone at the time in order to limit her liability to the offense of possession of marijuana. She further testified, against the advice of her attorney, about her criminal involvement in at least two additional drug-related offenses; but asserted that she had been a party to no 'promises, guarantees, or understandings' with the United States Attorney's office. She has not been prosecuted for either of these offenses, according to the representations of both counsel at oral argument, which we accept. ⁴

2. Denial of request for special instruction

At the close of testimony, government counsel requested that the judge give an informant's instruction with respect to Ms. Wise. This request was denied. It was renewed with greater vigor by defense counsel. ⁵ The court again refused to give the requested instruction. It stated that Ms. Wise was 'not an informant, she's a plain witness . . .. She is not an accomplice.' ⁶

3. Summation of defense counsel

In summation to the jury, defense counsel stressed that prosecution witness Wise was permitted to plead to the relatively minor offense of possession of marijuana and had two cases pending in which she might obtain immunity, and argued this was important to consider as showing bias in her testimony. ⁷

4. Credibility instruction to jury

The trial judge gave a conventional instruction to the jury on credibility, stating that they were the sole judges of the credibility of witnesses, and advising them that they might consider any matter bearing on credibility of a witness and of the testimony given, including whether the witness had any interest in the outcome of the case. ⁸

B. Discussion of Legal Issues

In our view a fair trial was provided as to the issue of a possible special interest of the principal prosecution witness arising out of her involvement in this crime and other crimes. Defense counsel was given latitude to adduce evidence pertinent to these issues, to cross-examine the prosecution witness, and to present argument to the jury on the issue of possible witness interest and bias. The trial court charged the jury that in assessing the credibility of testimony it could take into account the interest of any witness. While the judge had latitude to give special guidance on possible interest, in the circumstances of this case we see no basis for reversal because the trial judge limited himself to the general instruction on credibility and interest.

1. Instructions concerning effect of witness's interest on credibility-- in general

Before we consider whether and to what extent there is a requirement for special instructions on interest of witnesses, it is important to emphasize the undoubted latitude of counsel to adduce evidence pertinent to interest and to argue to the jury its impact on credibility.

Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), sustained the right of defense counsel to show that the prosecution's witness was in Federal custody, by cross-examination which, while respecting the bounds against questioning merely to harass, annoy or humiliate, was conducted in order 'to show by such facts as proper cross-examination might develop, that his testimony was biased because given under promise or expectation of immunity' or that 'his testimony was affected by fear or favor growing out of his detention.' 282 U.S. at 693, 51 S.Ct. at 220. See also District of Columbia v. Clawans, 300 U.S. 617, 630, 57 S.Ct. 660, 81 L.Ed. 843 (1937). ⁹

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Confrontation Clause requires that a defendant be allowed to cross-examine a prosecution witness as to possible bias deriving from the witness's probationary status as a juvenile delinquent, despite a state statute directing that such status remain confidential.

The availability of vigorous cross-examination is significant context for validating the use and testimony of accomplices and secret informers as a necessary means of coping with covert criminality. On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 96 L.Ed. 1270 (1950), ¹⁰ Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). ¹¹ Counsel has reasonable latitude not only in questioning witnesses but in argument to the jury where, provided he abstains from unjustified character assassination and vilification, he may put his view of the veracity of witnesses, and the character and weight of their testimony. ¹²

The role of the judge in giving instructions to the jury, sharply distinguished as it is from the adversarial role of counsel, brings different considerations into play. In general, the courts of this country have receded from their historic common law powers of latitude in commenting on the evidence. In furtherance of the predominant role of the jury in finding the...