United States v. Brown, 30563.

• Decision Date: 23 November 1971
• Docket Number: No. 30563.,30563.
• Citation: 451 F.2d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hugh BROWN and Lewis D. Hayes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

451 F.2d 1231 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Hugh BROWN and Lewis D. Hayes, Defendants-Appellants.

No. 30563.

United States Court of Appeals, Fifth Circuit.

November 23, 1971.

Samuel S. Jacobson, Jacksonville, Fla. (court-appointed), for Hugh Brown & Lewis D. Hayes.

Rudy Hernandez, Asst. U. S. Atty., John L. Briggs, U. S. Atty., M. D. Fla., Jacksonville, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, TUTTLE and INGRAHAM, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal illustrates the type of criminal case in which government counsel, having adequately proved sufficient facts to warrant submission of the question of the guilt of the two defendants to the jury has, through his over-zealousness, caused the court to commit error which requires a reversal of the conviction and sentence and the holding of a new trial.

The specific errors complained of in this narcotics law violation prosecution, resulting in ten and twenty year sentences respectively for the appellants, are: (1) that the trial court erred in admitting, over objection of the defendants, envelopes which had contained the alleged narcotics, and which had a detailed statement on the face of them of the essential facts relating to the commission of the illegal sale, and the admission of an enclosed statement more fully elaborating the circumstances surrounding the sale of the narcotics; this particular error, appellants complained, was further compounded by the fact that, once introduced in evidence, these two documents, prepared outside of court, and representing a nice summary of the crime alleged, were permitted to go to the jury room for the jury deliberation; (2) the appellants claim severe prejudice by the trial court's permitting the prosecuting officer to question a government witness with respect to a "list of people who were primary targets" of the witness's under-cover investigation and permitting government counsel to ask, "Were the defendants in this case listed on that list?", to which the witness testified, "Yes, they were". It had previously been testified that this list was "specific dealers and sellers—in other words, those that were known to the Sheriff's department * * *" (emphasis added); and (3) government counsel's undertaking, in his final argument to the jury, to vouch for the credibility of its principal witness, and, more devastating than that, to state that in his opinion the agent's work had been "successful"—a statement from which the jury could only conclude that the prosecuting officer was stating that it was his opinion that the government agent had caught guilty persons.

As to the last of the three grounds of appeal, the government confesses error to the action by the prosecuting attorney to attempt to vouch for the credibility of his witnesses and to express his own opinion as to the guilt or innocence of the accused. However, even as to this error, the United States now contends that the error was harmless and should therefore be ignored under the Harmless Error Rule.¹

We consider the several grounds raised by the appellants in order.

The evidence as to the purchases made from these two appellants was largely given by an undercover agent named Wilder. He testified at the trial and was subjected to rigorous cross-examination by defense counsel, who attempted to show inconsistencies between his testimony and his own reports which were obtained under the provisions of the Jencks Act. Following his testimony, the government tendered in evidence, not only the narcotics, together with the chemist's report, as to which no objection is here made, but also a fair sized manila envelope headed "TREASURY DEPARTMENT" and then under that "BUREAU OF NARCOTICS".² There was also contained in the envelope a further memorandum entitled "Report of Property Purchased or Seized Under Narcotic and Marihuana Laws". This report was a little more detailed in that it contained a full description as follows : "29 tin-foil packages containing suspected cocaine. 15 packages contained (illegible) match box, 14 packages contained in a piece of newspaper, 3.673 Grams, Market Value—Legitimate `none', Market Value—Illegitimate— $155.00". As already stated, similar envelopes and the purchase report document were introduced with respect to each of five alleged transactions.

Thus, the jury had before it, not only the recollection of the oral testimony given from the stand, but it also had what has been called by the Court of Appeals for the Seventh Circuit in United States v. Ware, (7th Cir. 1957) 247 F.2d 698, "a neat condensation of the government's whole case against the defendant(s). The government's witnesses in effect accompanied the jury into the jury room." As it must, the government concedes that this case is similar to Ware. However, the government is still contending that because no specific ruling to the same effect has been made by this court, such evidence is admissible to go to the jury. The best the government can do in this regard is to point out that in two other cases cited by the appellants in which the submission of such documents for the jury's consideration was held to be error there were other considerations that brought about the reversals in addition to the particular error here complained of. For instance, as is pointed out, the case of United States v. Adams, 2d Cir., 385 F.2d 548 reversed a conviction in which similar agent's memoranda were permitted to be seen by the jury, but noted that these envelopes had not been received in evidence. Also, in Sanchez v. United States (8th Cir.), 293 F.2d 260, the court comments on the improper introduction of this kind of documentary self-serving statement as "an additional reason * * which forces the conclusion that the defendant did not have a fair trial", the court there having found there were other grounds for reversal.

We conclude, as did the Court of Appeals of the Seventh Circuit, that even though "the persons who made the memoranda were present at the trial and were tendered for cross-examination (and) that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant's guilt", we cannot say that the error did not influence the jury, to the defendant's detriment, or even that it had but very slight effect.

The next ground of appeal is the failure of the trial court to rule out testimony given by the government witness, Wilder, to the effect that the defendants were on a "primary target list", made up of specific dealers and sellers "that were known to the Sheriff's department". It is too obvious for comment that for the witness to be permitted to say as a part of the government's case that the two defendants on trial were on a list of primary targets which had been compiled as representing specific dealers and sellers in narcotics "that were known to the Sheriff's department" would be inadmissible hearsay in the first place as to what the Sheriff's department knew and, in the second place, it would be evidence of prior and unrelated violations of the law by these defendants. It would thus be clearly inadmissible.

The government contends that the evidence was admissible by reason of the manner in which it came in. It contends that the first reference to...