United States v. Alston

• Citation: 460 F.2d 48
• Decision Date: 01 June 1972
• Docket Number: No. 71-3477 Summary Calendar.,71-3477 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard ALSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 48 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Richard ALSTON, Defendant-Appellant.

No. 71-3477 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

May 18, 1972.

Rehearing Denied June 1, 1972.

COPYRIGHT MATERIAL OMITTED

A. J. McNamara, New Orleans, La. (Court appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Patrick C. McGinity, Asst. U. S. Attys., New Orleans, La., Harry R. Hull, Jr., Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

Although there are four targeted errors in this appeal, the most vexatious involves the right of a trial court to stifle factual disclosures without demonstrable significance to a defendant but danger-laden to the witness. Appellant, Richard Alston, was convicted by a jury of selling heroin in violation of 26 U.S. C.A. §§ 4704(a) and 4705(a).¹ He appeals that conviction on four grounds: (1) that a federal narcotics agent who testified against Alston should have been required to divulge his home address on the witness stand; (2) that the trial judge incorrectly admitted evidence of alleged criminal conduct by Alston that took place prior and subsequent to the alleged criminal offense under indictment; (3) that tape recordings of conversations between the undercover agent and Alston were introduced into evidence without proper authentication; and (4) that the admission of evidence concerning a prior narcotics sale for which Alston was under indictment in another federal jurisdiction violated Alston's Fifth Amendment right against self-incrimination. Finding each of Alston's allegations without merit, we affirm his conviction.

Agent Allen Johnson, who had worked undercover as "Allen Jackson" in the arrest of Alston, testified at some length and was subject to vigorous cross-examination at the trial. The only information regarding his background that Agent Johnson refused to divulge on the stand was his home address. Defense counsel requested that information, and Johnson demurred. The Government objected and the very able district judge interrupted the trial proceedings to confer with counsel. Following that conference, the trial judge sustained the Government's objection to the question, and defense counsel continued his cross-examination without comment. Agent Johnson's testimony is critical to the Government's case against Alston, and Johnson must be properly and sufficiently "placed" as any other witness in order to allow Alston the maximum exercise of his Sixth Amendment right of confrontation. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314. The question before this court is whether or not Alston's Sixth Amendment right to confront witness Johnson was abridged in the circumstances of this trial by the trial judge's failure to require the witness to divulge his home address. The strength of Alston's proposition rests entirely on two Supreme Court decisions, Alford v. United States, 1931, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, and Smith v. Illinois, 1968, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956. Finding those decisions inapposite to the circumstances of this case, we conclude that Johnson was not required to divulge his home address.

It is true, as Alston urges, that both Alford and Smith reversed criminal convictions because the home address of a witness was not divulged. But it appears to us that the purpose of Alford/Smith was to safeguard the opportunity for a meaningful and open cross-examination, not to require that a witness always divulge his or her home address. Alford and Smith do not erect a per se requirement that a witness' home address be divulged upon demand:

"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . There is a duty to protect him the witness from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him."

Alford v. United States, 282 U.S. at 694, 51 S.Ct. at 220, 75 L.Ed. at 629, reaff'd Smith v. Illinois, 390 U.S. at 133, 88 S. Ct. 748, 19 L.Ed.2d at 959-960. In Smith, a narcotics case, a Government informer who was allegedly a narcotics addict himself refused to divulge not only his home address but also his real name. Faced with a witness who testified only under an alias and who did not have an existing occupation at the time of the trial, the defense was left with absolutely nothing on which to base an effective cross-examination for purposes of contradiction or impeachment of the Government's primary witness. In Alford, the Supreme Court was careful to point out that the witness in question might have been incarcerated himself at the time of his testimony, obviously a significant reflection on his credibility. As in Smith, the defendant in Alford was faced with a witness who could not be identified either with his occupation at the time of the trial or with his home neighborhood, and the right to confront the witness by means of cross-examination was substantially impaired.

The substance of Smith and Alford is to assure the admission of background that is "an essential step in identifying the witness with his environment," Alford v. United States, 282 U.S. at 693, 51 S.Ct. at 220, 75 L.Ed. at 628. The crucial underpinning of that substance is the likelihood of prejudice to the defendant:

"Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them the facts of the case."

Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219, 75 L.Ed. at 628. Emphasis added. Although in both Smith and Alford the defense erected on appeal a substantial likelihood that significant evidence might be gleaned from a knowledge of the witness's home address, the opinions in both Smith and Alford make clear that a defendant need not establish that an undeveloped line of questions foreclosed by a Government objection would necessarily lead to a disclosure of contradictory or impeaching material against the witness.² The critical question is not simply whether or not the witness has divulged his home address, information that admittedly could sometimes lead to facts relevant to contradiction or impeachment, but whether or not the defendant has been given sufficient "opportunity to place the witness in his proper setting," Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219, 75 L.Ed. at 628. Thus, while a witness would normally be required to answer all questions regarding his or her background, there are exceptions to that requirement. The witness should have the opportunity to demonstrate to the trial judge that his or her home address does not constitute information necessary to "place the witness in his proper setting." Put another way, the witness should have the opportunity to demonstrate to the trial judge that the defendant's solicitation of his or her home address constitutes only an attempt to "harass, annoy or humiliate." We think that a reasonable interpretation of this area of exception, acknowledged by Smith and Alford, to the usual requirement that the witness divulge background information would include an instance in which the physical safety of the witness or his family might be endangered by disclosure. Accord United States v. Caldarazzo, 7 Cir. 1971, 444 F.2d 1046; United States v. Palermo, 7 Cir. 1969, 410 F.2d 468; United States v. Daddano, 7 Cir. 1970, 432 F.2d 1119, cert. denied, 402 U.S. 905, 91 S.Ct. 1367, 28 L.Ed.2d 645; United States v. Lawler, 7 Cir. 1969, 413 F.2d 622, cert. denied, 396 U.S. 1046, 90 S.Ct. 698, 24 L.Ed.2d 691; United States v. Lee, 7 Cir. 1969, 413 F.2d 910, cert. denied, 396 U.S. 1022, 90 S.Ct. 595, 24 L.Ed.2d 515; United States v. Teller, 7 Cir. 1969, 412 F.2d 374, cert. denied, 402 U.S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118; United States v. Baker, 2 Cir. 1969, 419 F.2d 83 cert. denied, De Norscio v. United States, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271; United States v. Persisco, 2 Cir. 1970, 425 F.2d 1375, cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108; United States v. Marti, 2 Cir. 1970, 421 F.2d 1263; see also Smith v. Illinois, supra (White, J., concurring). The spectrum of cross-examination is wide and long but it is not infinite in scope. The trial court must have some authority to armor a witness against extra-judicial weaponry.

We hold that the district judge did not abuse his discretion when he concluded (1) that Alston had quite sufficient opportunity to "place the witness Johnson in his proper setting," and (2) that Johnson's objection to divulging his home address was, under the circumstances, a reasonable fear for his own or his family's physical safety. Agent Allen Johnson was identified as a 31-year old narcotics agent, who had worked as an undercover agent with the Bureau of Narcotics and Dangerous Drugs (BNDD) for almost two years in and around the New Orleans area. His duties as undercover agent were well defined in the testimony. He was identified as a college graduate who had served with the Army and with the Mississippi State Employment Service immediately prior to joining the BNDD coterie. Johnson's BNDD supervisor was identified by name and was present in the courtroom during the trial. Johnson disclosed the alias under which he had worked during the two-year period in New Orleans ("Allen Jackson"), and the fact that he had maintained a residence on Toledano Street in New Orleans as "Jackson." He also produced under questioning the telephone number that he had used in his conversations with Alston, a telephone number known to Alston. The only element of his background, occupation, and...