United States v. Collins

• Decision Date: 24 January 1972
• Docket Number: No. 72-2063 Summary Calendar.,72-2063 Summary Calendar.
• Citation: 472 F.2d 1017
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter COLLINS, a/k/a "Gypsy Black", and Inett Branch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 1017 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Peter COLLINS, a/k/a "Gypsy Black", and Inett Branch, Defendants-Appellants.

No. 72-2063 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 24, 1972.

Sherman F. Raphael, New Orleans, La. (Court-Appointed), for Collins.

Stephen B. Murray, New Orleans, La. (Court-Appointed), for Branch.

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

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

On this appeal, the defendants, Peter Collins, also known as "Gypsy Black," and Inett Branch, challenge their convictions for knowingly and intentionally distributing 12.58 grams of heroin in violation of 21 U.S.C. § 841(a) (1). We affirm.

The defendants contend, first, that the trial court erred in failing to instruct the jury that the testimony of an addict-informer is inherently suspect and should be weighed with great caution. At trial, the Government called Henry Hawkins, a former heroin addict, as a witness to testify against the defendants. Hawkins was an informer for the Bureau of Narcotics and Dangerous Drugs and played an important role in the events leading to the defendants' arrest. Collins and Branch admit that they did not request a special instruction to the jury regarding the credibility of an addict-informer and that they made no objection to the trial court's charge.

This Court, of course, can recognize plain errors committed by the trial court even in the absence of a timely objection at trial. Fed.R.Crim.P. 52(b); Bearden v. United States, 5 Cir. 1968, 403 F.2d 782; Kyle v. United States, 5 Cir. 1968, 402 F.2d 443. Plain errors are those involving serious deficiencies which affect the fairness, integrity or public reputation of the judicial proceedings or which constitute obvious error. United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380. Although the defendants would clearly have been entitled to a special instruction on addict-informers had they requested one, we have never held that the trial court's failure to give the instruction always requires reversal. The touchstone is fundamental fairness. In the present case, the record reveals that Hawkins' testimony was extensively corroborated and that the proof of guilt was strong and convincing. In these circumstances, we cannot say that the defendants were significantly prejudiced by the absence of the instruction. United States v. Kinnard, D.C. Cir. 1972, 465 F.2d 566, relied on by the defendants, applies only to situations in which the defense has requested a special instruction and is not contrary to our present holding. We conclude that there was no plain error. See Dewitt v. United States, 5 Cir. 1967, 383 F.2d 542; Crane v. United States, 5 Cir. 1962, 309 F.2d 464.

Second, the defendants contend that the trial court erred in excluding evidence of two pending charges against Hawkins. The evidence sought to be admitted included a bill of indictment charging Hawkins with administering a narcotic drug to a person under the age of twenty-one and a bill of information charging Hawkins with possession of an opium derivative.

The rule in this circuit has long been that evidence of pending charges, including indictments and informations, cannot be used to impeach the credibility of a witness. Coyne v. United States, 5 Cir. 1917, 246 F. 120. See also United States v. Bolden, 7 Cir. 1965, 355 F.2d 453, cert. denied 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018; United States v. Pennix, 4 Cir. 1963, 313 F.2d 524; Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Manley v. United States, 6 Cir. 1956, 238 F.2d 221.

We have also held, however, that evidence of pending charges is admissible for the purpose of showing bias, prejudice, and motive of a witness. Grant v. United States, 5 Cir. 1966, 368 F.2d 658; United States v. Bonanno, 2 Cir. 1970, 430 F.2d 1060; Hughes v. United States, 9 Cir. 1970, 427 F.2d 66; United States v. Polisi, 2 Cir. 1969, 416 F.2d 573; United States v. Hogan, 3 Cir. 1956, 232 F.2d 905. The defendants contend that the evidence of the pending charges should have been admitted to show that Hawkins' testimony may have been motivated by the promise or prospect of leniency. They argue that this is especially applicable in this case since Hawkins denied that there were any charges pending against him.

In response, the Government contends that when principles governing admissibility of evidence conflict, the question of admissibility should be left to the discretion of the trial court. United States v. Amabile, 7 Cir. 1968, 395 F.2d 47, vacated on other grounds, Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297. The Government points to several factors in the present case favoring the trial court's decision to exclude the evidence of pending charges. Most importantly, there was no evidence that the Government agents with whom Hawkins co-operated were aware of these pending charges or that the Government had either promised or actually accorded favorable treatment to Hawkins in those cases. Thus, the Government argues that no ground work had been laid for the admissibility of the pending charges and the trial court properly excluded the evidence as irrelevant.

We find it unnecessary, however, to rely upon this reasoning. Hawkins' testimony was corroborated in every detail by the Government agent, Stevens, who accompanied Hawkins during the events leading to the defendants' arrest. The evidence of the defendants' guilt was exceptionally strong. Hawkins' testimony was cumulative and unnecessary. In these circumstances, we are convinced that the trial court's error, if any, was harmless beyond a reasonable doubt. United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795, cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331, rehearing denied 402 U.S. 966, 91 S.Ct. 1635, 29 L.Ed.2d 131; Loftis v. Beto, 5 Cir. 1971, 450 F.2d 599; Milton v. Wainwright, 1972, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1; Schneble v. Florida, 1972, 405 U.S. 427, 92 S.Ct. 1056, 31 L. Ed.2d 340; Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L. Ed.2d 284; Chapman v. California, 1966, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Finally, the defendants contend that the trial court erred in denying defendants' motion for a 60 day continuance. On the day of the trial, April 3, 1972, the defendants moved for a 60 day continuance because of two recent articles appearing in local newspapers relating to a campaign by the federal government to prosecute narcotic pushers. One of the articles, published on March 26,...