United States v. Bryant

• Decision Date: 14 June 1972
• Docket Number: No. 71-1924,71-1925.,71-1924
• Citation: 461 F.2d 912
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Burnis BRYANT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry Church BRYANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

461 F.2d 912 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Burnis BRYANT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Henry Church BRYANT, Defendant-Appellant.

Nos. 71-1924, 71-1925.

United States Court of Appeals, Sixth Circuit.

June 14, 1972.

COPYRIGHT MATERIAL OMITTED

Dale M. Quillen, Nashville, Tenn., (Court appointed), for defendants-appellants.

Fred D. Thompson, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee; Charles H. Anderson, U. S. Atty., M. D. Tennessee, on brief.

Before McCREE and MILLER, Circuit Judges, and ENGEL,^* District Judge.

McCREE, Circuit Judge.

In number 71-1925, Henry Church Bryant appeals from a judgment after a jury conviction of three counts of carrying on the business of a retail dealer in liquors without paying the required federal tax, in violation of 26 U.S.C. § 5691(a), and of three counts of possessing, transferring, and selling distilled spirits the containers of which were not affixed with the tax stamps required by 26 U.S.C. § 5205(a)(2), in violation of 26 U.S.C. § 5604(a)(1). In number 71-1924, Burnis Bryant, Henry's brother, appeals from a judgment following a jury conviction of one count of aiding and abetting a violation of 26 U.S.C. § 5604(a)(1), in violation of 18 U.S.C. § 2. We affirm Henry Bryant's conviction but reverse that of Burnis Bryant.

At the consolidated trial, the testimony of agents of the Alcohol, Tobacco, and Firearms Division of the United States Department of the Treasury established the following facts. On November 7, 1969, one John Brown agreed to serve as a paid informer for the Government and to purchase non-tax-paid whiskey from Henry Bryant. Pursuant to this arrangement, on November 14, 1969, agent DeWitt Rollins gave Brown $14 to purchase whiskey, and Rollins positioned himself in a church outside Brown's apartment to permit him to observe the transaction. He saw Henry Bryant drive up, carry a heavy brown bag to someone inside, and receive money. Later that day, Brown delivered to Rollins a paper bag containing two gallons of non-tax-paid liquor. Essentially the same events occurred on November 20 and November 24, 1969. Additionally, during the November 20 delivery, Rollins observed that Burnis Bryant was driving the car in which Henry Bryant arrived at Brown's apartment. Henry was observed carrying a five-gallon jug into the apartment and coming out without it. The non-tax-stamped jug was later found to contain liquor. The car that Burnis was driving on that occasion was later seen at his residence, and he was arrested in that car on November 26.

At the close of the Government's case, Burnis Bryant moved for a judgment of acquittal on the two counts in which he had been charged with aiding and abetting violations of 26 U.S.C. §§ 5604(a)(1) and 5691(a) on November 20. This motion was denied. Counsel for Henry Bryant then moved that the Government be required to call Brown, the informer, as a witness. The court also denied this motion. Thereupon, counsel moved for permission to call Brown as a "hostile witness." The court reserved a ruling on this motion pending a demonstration that Brown was unfriendly, biased, or reluctant. Earlier, during a recess, at the direction of the court, defense counsel had been permitted to examine a statement that Brown had given to the Government and to interview Brown in the presence of the United States attorney. Thereafter, defense counsel called Brown as a witness for the defense since the court had not permitted the defense to treat him as a hostile witness. Nevertheless, defense counsel was allowed to question Brown with reference to a prior consistent statement, to impeach him by reference to his criminal record, to elicit the admission that he was a paid informer, and, to some extent, to ask leading questions. The United States attorney was permitted by the court, over objection of the defense, to ask Brown leading questions on cross-examination. Brown's testimony added nothing significant to the testimony already given by the federal agents.

The jury convicted Henry Bryant on all six counts. It acquitted Burnis Bryant on one count and, only after requesting and receiving a supplementary instruction, convicted him on the other count. Henry Bryant received concurrent sentences of two years on all counts, and Burnis Bryant received a sentence of 90 days on the one count of which he was convicted. Both appeal.

I

Henry Bryant contends that the refusal of the Government to call the informer as its witness violated his constitutional right to confront a witness against him, U.S.Const. amend. 6, and that the court erred in refusing to permit him to call the informer as a "hostile witness." We find no merit in these contentions.

The Sixth Amendment right of confrontation does not impose upon the Government the duty to call a particular witness. United States v. Polisi, 416 F.2d 573, 579 (2d Cir. 1969.) "Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the Government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers." United States v. Mosby, 422 F.2d 72, 74 (8th Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970).¹ Nevertheless, there are situations when the Government, as a matter of due process, is required to call a witness who the Government has reason to believe will give exculpatory testimony. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). This principle does not apply here.

Concerning Henry Bryant's second contention, we observe that, although Fed.R.Civ.P. 43(b) permits a party to "call an adverse party ... and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party. . .," and that this right is separate from and in addition to the provision in Civil Rule 43(b) that a party placing a hostile witness on the stand may interrogate him by leading questions, see, e. g., Degelos v. Fidelity & Casualty Company of New York, 313 F.2d 809, 814-815 (5th Cir. 1963), there is no corresponding provision in the Federal Rules of Criminal Procedure. But, this does not end our inquiry: there remains the question whether the court abused its discretion in its ostensible refusal to allow the defense to treat Brown, admittedly not an adverse party, as a hostile witness. We hold that it did not.

There appear to be two views concerning the latitude to be afforded defense counsel in a criminal case in examining a witness whom he calls. What may be termed the orthodox view requires the defense, before impeachment or the use of leading questions is permitted, to establish to the satisfaction of the court in all cases that the witness is hostile. See United States v. Hicks, 420 F.2d 814, 815-816 (5th Cir. 1970); Guffey v. United States, 310 F.2d 753, 755 (10th Cir. 1962). This showing may be made on the basis of the in-court testimony of the witness, see, e.g., United States v. Hicks, supra, or the showing may be made on the basis of off-the-record, extrinsic facts that indicate, before the witness testifies, that the "witness' interest is on the side of the prosecution to such an extent that he is unlikely to give a true account of the transaction." Clingan v. United States, 400 F.2d 849, 851 (5th Cir. 1968). In Clingan, for example, the Fifth Circuit held that the trial court had abused its discretion in not permitting the defense to call an informer as a hostile witness when the informer had refused to discuss the case with defense counsel and had assisted the Government in numerous previous arrests on a contingent-fee basis. These circumstances presented a strong likelihood that the informer would not give a true account of the transaction.

The other and, we think, better view does not require a criminal defendant in certain cases to show that a witness is "hostile." Instead, it focuses on the intrinsic nature of the relationship between the accused and the witness, and it dispenses with adherence to ritualistic requirements. Under this view, certain witnesses may be called by the defense and may be contradicted, asked leading questions, and impeached, without the necessity of a preliminary showing of hostility. The leading expression of this rule is that of Chief Judge Lumbard in United States v. Freeman, 302 F.2d 347, 351 (2d Cir. 1962), cert. denied, 375 U.S. 958, 84 S.Ct. 448, 11 L.Ed.2d 316 (1963):

When a defendant calls government agents to the stand in an effort to establish some part of his defense he should be given every reasonable leeway in bringing out whatever may be relevant to the issues before the jury. It is pointless to require a showing, such as the trial judge indicated might be necessary, that such witnesses are hostile.

The agents were adverse parties within the meaning of Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C., which permits such witnesses to be cross-examined, asking leading questions, and generally impeached. Although there is no companion provision in the Federal Rules of Criminal Procedure, there is even more reason for permitting such a practice in criminal cases where every proper means of ascertaining the truth should be placed at the defendant\'s disposal.

We do not limit our repudiation of the pernicious rule against impeachment of one\'s witness to instances in which the witness is an "adverse party" or "hostile." The search for truth is not to be confined by any such limitation, and, as Professor Morgan has aptly said:

"The fact is that the general prohibition, if it ever had any basis in reason, has no place in any rational system of investigation in modern society and all attempts to modify or qualify it so as to reach sensible

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