U.S. v. Miller, 76-1631

• Decision Date: 29 November 1976
• Docket Number: No. 76-1631,76-1631
• Citation: 546 F.2d 320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Eugene MILLER, a/k/a "Red" Miller, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 320

546 F.2d 320

UNITED STATES of America, Plaintiff-Appellee, v. Walter Eugene MILLER, a/k/a "Red" Miller, Defendant-Appellant.

No. 76-1631.

United States Court of Appeals Ninth Circuit.

Nov. 29, 1976.

Martha Goldin (argued), of Goldin & Goldin, Hollywood, Cal., for defendant-appellant.

Stephen V. Petix, Asst. U. S. Atty. on the brief, Terry J. Knoepp, U. S. Atty., Stephen V. Petix, Asst. U. S. Atty., argued, San Diego, Cal., for plaintiff-appellee.

Before BROWNING and ANDERSON, Circuit Judges, and PALMIERI, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

On May 22, 1975, a five-count indictment charging defendant Walter Eugene Miller (hereinafter Miller) with various narcotics offenses was returned by the Grand Jury for the Southern District of California. Count I alleged that Miller and co-indicted Ray Chandler Channell, together with unindicted co-conspirator and accomplice David Wells Stutler (hereinafter Stutler), conspired to import marijuana into the United States from Mexico, and to distribute it, all in violation of 21 U.S.C. 846 and 963. Counts II and IV alleged importation of marijuana by these same parties in violation of 21 U.S.C. 952, 960, 963 and 18 U.S.C. 2. Counts III and V alleged possession of marijuana by these parties in violation of 21 U.S.C. 841(a)(1).

Ray Chandler Channell was a fugitive from justice and was not arraigned or tried with defendant.

Miller was arraigned on the charges and entered pleas of not guilty. He was tried by a jury and found guilty on the Count I conspiracy charge. He was found not guilty of the four other substantive counts of importation and possession. He timely appealed his conviction for conspiracy. Jurisdiction rests with 28 U.S.C. 1291.

We reverse and remand for further proceedings.

I.

The government's case against Miller rested almost entirely upon the testimony of the unindicted co-conspirator Stutler. Following is a summary of the evidence as presented by Stutler's testimony.

Stutler and Miller first met at a restaurant in the early Spring of 1973. They were introduced by one Pete Hutton who on previous occasions had hired Stutler to fly illegal narcotics from Mexico into the United States. Miller asked Stutler if he would be interested in flying some marijuana across the border. Stutler confirmed that he was interested. Miller suggested that Stutler use a Cherokee 6 airplane because it carried the largest payload for a single-engine airplane. At that time Stutler was not checked out to fly this particular type of airplane, but told Miller that he could easily get checked out in one.

Several days later Stutler did get checked out to fly the Cherokee 6 airplane. Records from the airplane rental agency were introduced and admitted into evidence to verify this. About a week after the meeting in the restaurant, Stutler rented a plane and flew to pick up Miller. Together they flew around the desert area searching for a suitable isolated place where a plane loaded with marijuana could safely land and be unloaded. One dry lake bed was selected. Stutler was then told to wait for directions while Miller made arrangements with the Mexican supplier, one "Juan." A few days later Stutler was directed by Miller to go to Mexico and meet with Juan and complete the arrangements at that end. Stutler rented a plane and flew to the border. There he rented a car, crossed the border and met with Juan. Together they picked out a suitable landing area in Mexico where Stutler could pick up the marijuana. Stutler then returned to the United States. After the final arrangements were completed, Miller gave Stutler the go-ahead. Stutler rented a Cherokee 6, flew across the border to the preselected landing area in Mexico, picked up the marijuana, and flew back. He landed on the lake bed Miller and he had previously selected. There was no one there to meet him, but he unloaded the marijuana anyway. As he took off, he noticed a light van approaching the unloading spot. He later met with Miller, who said that everything turned out all right. Miller paid Stutler $3,000 for the flight.

Arrangements were made for a second flight. Again, Miller and Stutler flew out into the desert in search of a new landing area. This time they agreed upon an abandoned dirt mining road. Stutler again rented a plane and flew to the same Mexican landing area as before. He loaded the plane with more marijuana and flew back across the border to the agreed upon dirt road. This time Miller's friend, Ray Channell, was waiting. Together they unloaded the marijuana from the airplane into Ray's van. Stutler returned the plane. When Stutler later met Miller, Miller paid him $4,000 for the flight.

The government introduced evidence such as rental and gasoline receipts to show that Stutler had in fact rented airplanes and purchased gas at various points along the flight routes to which he had testified. Stutler testified that several of the arrangements between himself and Miller had been over the telephone.

The government introduced Miller's driver's license to show that his address was 455 Roberta Avenue in Fullerton. The government then introduced telephone records of calls made by Stutler to a telephone number which was located at this same address.

While this documentary evidence does show that Stutler rented airplanes, flew them along the routes he testified to, and made several phone calls to Miller's address, none of it by itself links Miller to any illegal smuggling activity. The only accusatorial link to Miller is the testimony of the unindicted co-conspirator Stutler. Stutler's credibility then becomes a crucial issue in the case. ¹ As the trial judge pointed out at page 510 of the trial transcript, "There is only one issue in this case: Does the jury believe Mr. Stutler or don't they believe him."

On this key issue of credibility, the judge instructed the jury as follows:

"You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.

"You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief.

"Consider each witness' intelligence, his motive, his state of mind, his demeanor and manner while on the witness stand.

"Consider the witness' ability to observe the matters as to which he has testified, and whether he impresses you as having an accurate recollection of these matters.

"Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.

"Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony.

"Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience.

"In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.

"After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.

"An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises, or encourages another in the commission of a crime, regardless of his degree of participation.

"The testimony of an alleged accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care."

This instruction was given among the other instructions one would expect in a trial such as this. It is the common instruction on credibility and the parties have no quarrel with it. A serious problem arose, however, when the trial judge clarified these credibility instructions to the jury.

At 3:05 P.M., on the second day of the jury's deliberations, the jury sent a note to the judge saying they would like all of the jury instructions reread to them. ² The trial judge declined, indicating that rereading the whole set of instructions would be too time-consuming....