United States v. Dillon

• Decision Date: 08 January 1971
• Docket Number: No. 28931 Summary Calendar.,28931 Summary Calendar.
• Citation: 436 F.2d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Doris Loraine DILLON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

436 F.2d 1093 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Doris Loraine DILLON, Defendant-Appellant.

No. 28931 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 8, 1971.

Pat Beard, Waco, Tex., for defendant-appellant.

Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

INGRAHAM, Circuit Judge:

Appellant Doris Loraine Dillon and her daughter, Sherry Diane Jester, were tried before the district court, sitting without a jury, and convicted of conspiracy in committing the offense of and possession, passing, uttering and publishing counterfeit money in violation of 18 U.S.C. §§ 371 and 472. Appellant received sentences of five years on each of eight counts, the sentences to run concurrently. Her daughter, Mrs. Jester, was placed on probation.

The record establishes that on March 26, 1969, while driving between Hillsboro, Texas, and Waco, Texas, Jester and Dillon passed approximately seven counterfeit $10 bills while purchasing various small items at service stations and cafes along the highway. Both defendants below testified that Dillon was a professional short-change artist, that their purpose in changing the $10 bills was to secure the necessary bills with which Dillon could short-change, and that neither knew the bills were counterfeit.

Under direct examination Jester described the events leading up to the date of the crime of March 26, 1969. She and Dillon went to Fort Worth and Dallas, Texas, where they raised money by purchasing tires through a credit card given to Jester by her father. She testified that Dillon sold approximately 25 of the tires.

Appellant Dillon confined her direct testimony to the events of March 26, 1969, and to a description of her talents as a short-change artist. On cross-examination the government asked appellant Dillon certain questions regarding her refusal to disclose to Federal Agents where and to whom she had sold the tires. Appellant's attorney objected to such testimony about an event that occurred prior to March 26, 1969, because it allegedly exceeded the scope of the direct examination. The court below admitted the testimony only for the purpose of shedding light on the credibility of the witness.

The issue on this appeal is whether the prosecution on cross-examination exceeded the scope of the direct examination which appellant contends was limited to the events of March 26, 1969. Appellant relies on the general rule that cross-examination of a defendant in a criminal case must be confined to the subjects of the direct examination, citing Simon v. United States, 123 F.2d 80 (4th Cir. 1941), and Madden v. United States, 20 F.2d 289 (9th Cir. 1927). The court in the latter case, however, stated the rule thusly:

"Where a defendant elects to testify in his own behalf he may be cross-examined as any other witness, and with like latitude in respect of matters to which he has testified; but he cannot be compelled to answer as to other facts not relevant to his direct examination. Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078; Tucker v. United States 8 Cir. 5 F.2d 818, 823." (Emphasis supplied.) 20 F.2d at 293.

Professor Wright has explained that "since the prosecution cannot call the defendant in a criminal case as a witness, the restrictive rule of cross-examination means that the prosecution may examine a defendant taking the stand in his own defense only on `facts and circumstances connected with' the subjects on which he has chosen to testify on direct examination." 2 C. Wright, Federal Practice and Procedure § 416, at page 185 (1969).

In the case at bar, the sale of the tires was clearly connected with and relevant to the subject matter discussed during the direct examination of each defendant. As we have indicated above, defendant Jester testified about the buying and selling of the tires, and appellant Dillon explained that as a "professional short-change artist," she was in need of ready cash.

This court finds several reasons for holding that the questions propounded by the prosecution fell within the permissible scope of cross-examination. In the first place, the scope of the direct examination may be exceeded on cross-examination in an effort to test the truthfulness of the witness. Lyda v. United States, 321 F.2d 788, 793 (9th Cir. 1963). "Thus, inquiries may properly be directed to the witness' interest, his motives, his prejudices or hostilities, his means for obtaining knowledge of the fact, his power of memory, his way of life, his associations and to any pertinent circumstances affecting his credibility." United States v. Lawinski, 195 F.2d 1, 7 (7th Cir. 1952). In Lewis v. United States, 373 F.2d 576 (9th Cir. 1967), the appellant bank robber was asked on cross-examination whether he was possessed of money when he arrived in the State of Montana and where he got the money. The court was faced with the difficult question of determining whether the evidence of the possession of the large sum of money, though material, was improper cross-examination. It found no impropriety and said:

"In coming to such conclusion, we have considered the fact that `money\' was brought into the case on appellant\'s direct examination. It had to do with appellant\'s borrowing from the appellant\'s father $200; appellant obtaining a check in that amount. This was to enable appellant\'s sister, Jaxie Young, to buy a horse in Flagstaff * * *, `sell it, and make a little money.\' Appellant had gambled at Las Vegas `on the way down\' * * * Had appellant won $5,500 when he stopped at Las Vegas on the way down, and gone to Flagstaff with his sister to purchase a horse, it would be surprising for him to borrow $200 from his father for the purpose of `making a little money.\' That this proposed horse purchase and sale was not to be of benefit to appellant\'s father was established by appellant\'s sister\'s direct examination * * *.

"Thus it can be argued that the amount of money appellant had in his possession when he was in Tucson and when he arrived `home\' was `embraced\' in the direct examination. At the least, it raises a question for the court, in the exercise of its judicial discretion, to pass upon. In view of all the other

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