U.S. v. Willis, s. 79-1769

• Decision Date: 05 June 1981
• Docket Number: Nos. 79-1769,79-1770,s. 79-1769
• Citation: 647 F.2d 54
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Brian WILLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 54

647 F.2d 54

UNITED STATES of America, Plaintiff-Appellee, v. Carl Brian WILLIS, Defendant-Appellant.

Nos. 79-1769, 79-1770.

United States Court of Appeals Ninth Circuit.

Argued Sept. 11, 1980.

Submitted Sept. 26, 1980.

Decided June 5, 1981.

Michael J. Brennan, Balaban, Stern & Brennan, Los Angeles, Cal., for defendant-appellant.

Deborah Seymour, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before CHOY, Circuit Judge, KASHIWA, ^* Associate Judge, and FERGUSON, Circuit Judge.

CHOY, Circuit Judge:

Willis appeals from his convictions for failure to appear for trial (bail jumping), a violation of 18 U.S.C. § 3150, and for possession of cocaine with the intent to distribute, a violation of 21 U.S.C. § 841(a)(1). We reverse both convictions on the ground that the district court's refusal to permit cross-examination of a government witness as to his bias violated Willis' right to confront a witness against him. The case is remanded for a new trial on both charges.

I. Facts

San Mateo police officers arrested appellant Carl Brian Willis outside his apartment on an outstanding traffic warrant and found an ounce of cocaine in his pocket. The police, together with Federal Drug Enforcement Administration (DEA) agents then searched Willis' apartment pursuant to a warrant they had already obtained. They found 383 grams of cocaine, chemicals used to process cocaine, and assorted narcotics paraphernalia.

Much of the information recited in the affidavit supporting the search warrant application had been obtained from Willis' former live-in girl friend, Annette Coleman, who had been in contact with the police for several weeks before Willis' arrest. The affidavit did not mention that a state narcotics officer, Griffin, had been having sexual relations with Coleman and had supplied her with a small number of Seconal pills (a controlled depressant).

Willis' first trial began on December 11, 1978, but ended in a mistrial when Willis failed to appear on the second day.

Seven months later, Willis was arrested at a Burlingame bar by Griffin, assisted by several Burlingame officers. Griffin, who knew the bar to be frequented by drug traffickers, was there on duty. When accosted by the police, Willis asserted a false identity, saying he had just flown into town and had no identification with him. In fact, he had his driver's license and a business card, each identifying him as Willis.

At Willis' second trial, at which he faced the added charge of bail jumping, Griffin testified about the circumstances of Willis' second arrest. Willis attempted to cross-examine Griffin on his relationship with Annette Coleman, ostensibly for the purpose of attacking Griffin's credibility by showing bias. The district court disallowed this questioning as irrelevant and beyond the scope of direct examination.

Later in the trial, a defense psychiatrist testified that due to a panic reaction Willis was unable to form the specific intent to jump bail. The doctor based his opinion on Willis' reported perceptions regarding his plight in general, and specifically the treatment of his girl friend, Coleman, by police.

The prosecution, in its cross-examination of this doctor, attacked his opinion by questioning the accuracy of the underlying factual assumptions, including the Coleman-Griffin affair. Again, however, the court refused to allow Willis to establish these facts by examining Griffin.

After a day's deliberation, the jury informed the court that they were deadlocked on the intent-to-distribute charge and asked if they should proceed to consider the bail-jumping charge. (They had been instructed not to consider simple possession unless they were unanimous for acquittal on intent to distribute.) Willis then requested that the jury be allowed to consider the lesser included offense of simple possession. The court refused to allow the jury to consider the lesser offense on the ground that the Government was entitled to a verdict on the greater offense. By poll, the court established that the jury was indeed deadlocked on distribution. It sent them back to consider only the bail-jumping charge, on which they returned shortly with a guilty verdict. Over Willis' objection mistrial was then declared on the drug charge.

At his third trial, a bench trial, Willis submitted his case to the court on the record of the second trial. He was convicted of possession with the intent to distribute cocaine. He was sentenced to four years on the drug offense and three years for bail jumping, to be served consecutively. Willis appeals both convictions.

II. Issues

1. Did submission on the record for the third trial constitute a waiver of claims of error on evidentiary rulings made in the second trial?

2. Did the district court violate Willis' right to confront an adverse witness by refusing to allow questioning of Officer Griffin about his relationship with Annette Coleman in order to show bias?

3. Was the affidavit sufficient to support the search warrant?

4. Did the second and third trials on the cocaine charge subject Willis to double jeopardy?

5. Did the district court err in refusing to allow the jury to consider the lesser included offense of simple possession when they became deadlocked on the charge of possession with intent to distribute?

6. Was the evidence sufficient to support the conviction for bail jumping?

III. Analysis

A. Preservation of Right to Appeal

There is a question as to whether Willis' submission on the record for the third trial on the cocaine charge constituted a waiver of claims of error on evidentiary rulings made in the second trial. Counsel has not cited, and we have not been able to locate, any cases on this specific point. An examination of the transcript of the third trial, however, shows that the trial judge assured Willis that by submitting on the record of the second trial he was preserving his right to appeal the ruling. The relevant portions of the transcript are as follows:

October 29, 1979

THE CLERK: Criminal 78-375 United States versus Carl Brian Willis, change of plea. Appearances.

MS. SEYMOUR: Deborah Seymour for the Government.

MR. OSTERHOUDT: William Osterhoudt on behalf of Mr. Willis who is present in custody.

Your Honor, I came to the view that what I would propose, with the Court's permission, was that in lieu of a change of plea at this time, we would be prepared on Mr. Willis' behalf to submit to Your Honor for decision the question of his guilt or innocence on the pending indictment on the basis of the testimony adduced at the prior trial. I have proposed that to Ms. Seymour and I understand basically it's agreeable if it's agreeable with the Court.

MS. SEYMOUR: The Government is agreeable to submitting the case without a jury on the record as adduced at the trial previously.

. . . .

THE COURT: As Mr. Osterhoudt strongly suspects, I am going to find Mr. Willis guilty on the record that's before me

. . . .

THE COURT: All right. Very well. Then it is stipulated that the matter is submitted to the Court on the record of the prior trial, which ended in a mistrial by reason of a jury disagreement with respect to this charge.

MR. OSTERHOUDT: Yes, sir. There's only one other thing I think I ought to mention that ought to be perhaps stated. Your Honor will recall that I objected to the declaration of a mistrial on the ground I felt the jury ought to have been permitted to consider the lesser included offense without unanimously agreeing on the greater. That technically translates into a double jeopardy sort of objection. I think I ought to state that for the record, although it's already been made in the form of an objection to the mistrial but it ought to be made here too.

THE COURT: I think you preserved that.

MR. OSTERHOUDT: Fine. Other than that, Your Honor, we are prepared to submit the matter to you on the record of the first trial.

MS. SEYMOUR: The Government so stipulates also.

THE COURT: Anything you want to say with respect to the judgment?

MR. OSTERHOUDT: No, Your Honor.

THE COURT: Well, as I have indicated, I thought the evidence was plain on the charge and I will find the Defendant guilty.

The transcripts reflect the following statement on November 9, 1979:

MR. OSTERHOUDT: Yes, Your Honor. I think at the outset I probably ought to renew for the record, although it may not be necessary, the various objections that had been made when we submitted the matter to Your Honor. I think I restated the double jeopardy objection which stemmed from the mistrial and I just wanted to make clear that it wasn't waived in any sense and that we do maintain that.

We find that under these circumstances Willis' right to appeal the evidentiary rulings was preserved.

B. Cross-Examination of Griffin on His Relationship with Annette Coleman

Willis contends that his right of confrontation was violated by the court's refusal to allow him to attack Griffin's testimony by showing possible bias.

The sixth amendment guarantees a defendant the right to confront witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974). The right to cross-examine adverse witnesses is a substantial part of this right. "The right to confront witnesses guaranteed by the sixth and fourteenth amendments includes the right to cross-examine witnesses to show their possible bias or self-interest in testifying." Burr v. Sullivan, 618 F.2d 583, 586 (9th Cir. 1980). Although trial courts have broad discretion in limiting cross-examination to avoid confusing the jury with collateral matters, United States v. Weiner, 578 F.2d 757, 766 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978), this court has recently held that the confrontation clause is violated where examination into sources of potential bias or prejudice is foreclosed in its entirety. Chipman...