U.S. v. Norris, 88-3048

• Citation: 873 F.2d 1519
• Decision Date: 09 May 1989
• Docket Number: No. 88-3048,88-3048
• Parties: , 28 Fed. R. Evid. Serv. 237 UNITED STATES of America v. Franklin D. NORRIS, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1519

873 F.2d 1519

277 U.S.App.D.C. 262, 28 Fed. R. Evid. Serv. 237

UNITED STATES of America v. Franklin D. NORRIS, Jr., Appellant.

No. 88-3048.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 16, 1989.

Decided May 9, 1989.

Allen M. Lenchek, Washington, D.C. (appointed by the court), for appellant.

Donald B. Nicholson, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROBINSON, EDWARDS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellant Franklin D. Norris, Jr. ("appellant" or "Norris") appeals from his conviction on five counts of using communications facilities in connection with drug trafficking in violation of 21 U.S.C. Sec. 843(b); one count of possessing with intent to distribute more than 500 grams of cocaine, 21 U.S.C. Secs. 841(a), 841(b)(1)(B)(ii); and one count of carrying a firearm during the commission of a drug traffick scheme, 18 U.S.C. Sec. 924(c)(1). He argues that the Court erred in not giving a missing witness instruction to the jury, in misstating the law of entrapment in its instructions, and in denying him a fair trial by its participation in cross-examination of the defendant. Concluding that none of the allegations of error is sufficiently meritorious to warrant reversal, we affirm.

I. BACKGROUND

This is the odd criminal case in which there is virtually no dispute as to facts. The government's evidence shows that Norris engaged in several telephone conversations with Emile Manara, a Drug Enforcement Administration ("DEA") undercover agent, for the purpose of setting up a transaction to sell two kilograms of cocaine to the agent in exchange for $26,000. On October 7, 1987, when they met to consummate the deal, Manara and another agent arrested appellant and seized two kilograms of cocaine from his car and a pistol from his person. Norris contests none of this.

Norris claimed that he was entrapped into committing the offenses by Barbara Walters, a DEA informant. The government does not dispute the evidence offered by Norris in support of this defense. Norris's uncontradicted evidence was to the effect that Walters moved into the home of Norris and his mother in 1976 and was the lover of Norris's mother. She developed an "aunt-like" or "father-like" relationship with young Norris, guided him in school, counseled him in social and personal matters, and taught him to drive. In 1982, when Norris was home on leave from the military, Walters introduced him to cocaine. Over the course of the next few years, they indulged in the use of cocaine together.

In 1984, Walters became a paid informant of the DEA. She introduced acquaintances to DEA agents for the purpose of setting up controlled narcotics buys. Between October, 1984, and January, 1988, she was paid more than $30,000 by the DEA for her informant services. In September of 1987, Walters solicited Norris to obtain a sample of cocaine for a friend (agent Manara) who would be interested in purchasing a multi-kilogram quantity if he liked the sample. Prior to this time, Norris had dealt in cocaine, but never in multi-kilogram or even multi-ounce quantities. Norris told Walters that he could not produce such large quantities, but she assured him that she would give him time to work on it and set up a meeting between him and the "friend." After the meeting, Walters told Norris that her "friend" was satisfied with the sample and wanted six kilograms. Norris advised her that he could not obtain six kilos but agreed to obtain two for the still undisclosed undercover agent. The transactions then proceeded as established by the government's evidence.

At trial, in light of the undisputed evidence, the sole defense was based on the theory of entrapment. Neither party called Walters as a witness. After conviction and sentencing on all counts, and Norris's motion for a new trial was denied, he appealed, setting forth the three assignments of error described above.

II. ANALYSIS

While none of the assignments of error warrant reversal, each occasions some brief discussion on our part.

A. The Missing Witness Instruction

Appellant requested the District Judge to instruct the jury, with reference to Barbara Walters, that

[i]f it was peculiarly within the power of either the prosecution or the defense to produce a witness who could have given material testimony on an issue in this case, you may infer, from the party's failure to call that witness to testify, that his or her testimony would have been unfavorable to the party to whom the witness was peculiarly available.

Defendant's Request for Instruction No. 2, quoted in Brief for Appellant at 9. The government objected, and the Court, after hearing arguments, did not instruct the jury on the missing witness inference appellant requested.

Norris urges that this was reversible error. He argues that the relationship between the DEA and its informant places Walters in the position of being peculiarly within the power of the government to produce and that, therefore, he is entitled to the missing witness instruction concerning informant Walters. He finds support in Burgess v. United States, 440 F.2d 226 (D.C.Cir.1970), in which Judge Fahy, considering the same question, found that the informant was within the control of the government because he "participated in bringing appellant into conflict with the narcotic laws. Nothing indicates any break in the association." Id. at 232. While the government argues that Norris knew the name and address of the witness and could have subpoenaed her himself, the same situation prevailed in Burgess, and Judge Fahy went on to state "[w]hile it was quite proper for the Government to furnish defense counsel with such information as it could as to the whereabouts of the informer, this created no obligation on the defense to seek the witness by subpoena." Id. ¹

The government counters that the status of informant does not by itself create the sort of peculiarity of power to produce a witness that triggers the missing witness instruction. Indeed, in a more recent decision, we have held that "no automatic inference of exclusive government control arises from the fact that witnesses are acting as government informants." United States v. Tarantino, 846 F.2d 1384, 1404 (D.C.Cir.) (per curiam) (citations omitted), cert. denied, --- U.S. ----, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988).

We need not determine whether the present case is controlled by Burgess or Tarantino on the question of the "exclusive" or "peculiar" power to produce the witness. Exclusivity or peculiarity of power to produce is only one of two necessary predicates for entitlement to the missing witness instruction. As Judge Fahy noted in Burgess, "[w]hen the court is asked to give the instruction, then, a judgment is to be reached as to whether from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." 440 F.2d at 234. We have similarly held on other occasions. See, e.g., Morrison v. United States, 365 F.2d 521, 524 (D.C.Cir.1966) ("The missing witness instruction is one within the sound judicial discretion of the trial judge who must decide whether in all the circumstances shown it is reasonable for the jury to be permitted to draw an adverse inference from one party's failure to call a witness peculiarly available to him."). Thus, the instruction need not be given even if the missing witness is under the control of one of the parties as long as no inference of adverse testimony is justified. See United States v. Bramble, 680 F.2d 590 (9th Cir.) (quoting and adopting the above language from Burgess ), cert. denied, 459 U.S. 1072, 103 S.Ct. 493, 74 L.Ed.2d 635 (1982); see also United States v. Busic, 587 F.2d 577, 586 (3d Cir.1978) (inference warranted only when "testimony could be expected to favor" one party) (citing, inter alia, Burgess ), rev'd on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); United States v. Torres, 845 F.2d 1165, 1169 (2d Cir.1988). Cf. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893) (when unproduced testimony would "elucidate the transaction," presumption of unfavorable testimony arises).

In the present case, no such inference is warranted.

The logic underlying the missing witness rule is that where the party with peculiar or exclusive control of a witness fails to call that witness, there must be some reason for its failure. Where there are "other reasons why [s]he was not called," the failure of the party having the peculiar power to control the presence of the witness to put her on the stand "d[oes] not authorize an inference, supported by an instruction, that if [s]he testified [s]he would have done so unfavorably to the" party. Burgess, 440 F.2d at 234. That is the situation in the present case. The government had well established the facts upon which it relied. Agent Manara had fully elucidated the facts of the transactions in conversations between himself and Norris. Another DEA undercover agent, Freddie Ryans, testified to his presence at the arranged buy and corroborated Manara's account. The government had presented as evidence tapes and transcripts of several conversations between Manara and Norris. Cross-examination of Manara and Ryans was not directed toward shaking the foundations of the evidentiary facts upon which the government relied. At the close of the government's evidence, there was no reason to expect the government to offer any further support for its well-established propositions. Appellant's evidence, including his own extended testimony, did not contradict the facts upon which the government relied to support the indictment. Thus there was no reason to expect the government to call Walters or any other...