United States v. Fowler, 71-1330.

• Decision Date: 06 July 1972
• Docket Number: No. 71-1330.,71-1330.
• Citation: 465 F.2d 664,151 US App. DC 79
• Parties: UNITED STATES of America v. Larry Edward FOWLER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 79, 465 F.2d 664 (1972)

UNITED STATES of America v. Larry Edward FOWLER, Appellant.

No. 71-1330.

United States Court of Appeals, District of Columbia Circuit.

Argued April 7, 1972.

Decided July 6, 1972.

Mr. Richard W. Whitlock, Washington, D. C. (appointed by this court), for appellant.

Mrs. Ann S. DuRoss, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before McGOWAN, MacKINNON and ROBB, Circuit Judges.

MacKINNON, Circuit Judge:

At trial for a narcotics act violation it developed that the Government's principal witness, formerly employed as an undercover agent, had been dismissed from such employment and was no longer connected with the Police Department. Defense counsel knew from conversation with the former agent that shortly before his dismissal he had been given two urine tests by the Police Department to determine whether he was using narcotics. Apparently one of these tests was negative but the Police Department considered the second test to be inconclusive since they suspected that it indicated the presence of some evidence of narcotics. The witness was then requested to take a third urine test. He refused to do so. Shortly thereafter his services with the Police Department were terminated. The reason stated on the record of his dismissal was that he was allegedly "under weight."

At appellant's trial this former narcotics agent appeared as the Government's principal prosecution witness and testified to facts which, if believed by the jury, would justify a guilty verdict without any additional evidence. Under such circumstances we conclude that defense counsel had a right to cross examine the agent as to the true reasons for his dismissal, and as to whether he was using narcotics at the time he observed appellant commit the alleged offense. The obvious ground for such cross examination would be to determine the witness' credibility and his powers of observation at the time he observed the offense.

In Wilson v. United States, 232 U.S. 563, 34 S.Ct. 347, 58 L.Ed. 728 (1914), it was held to be improper to deny cross examination of an admitted drug user to explore the possibility that his powers of recollection had been affected when he observed the events he related in his testimony. The evidence here is very close to the facts in Wilson. While the witness did not admit to being a drug addict, he did admit that police authorities suspected one of his tests showed that he had been using narcotics. This fact alone was sufficient to justify cross examination as to his possible use of narcotics, and the right to so proceed is buttressed by the fact that almost immediately thereafter he had been dismissed from the service for allegedly being "under weight."

In view of the dependence of the Police Department on his testimony, the stated reason for his dismissal was a fair target for cross examination. First of all, the stated reason might not have been the only reason. More importantly, however, there were also the additional possibilities implicit in such circumstances, that his testimony might have been affected by fear of prosecution or hope of favor growing out of the circumstances of his termination. He might have been promised immunity or other advantage. These are possibilities that cannot be overlooked when prior narcotics users are used as narcotics agents — that may have been the case here. It is central to the conclusion here reached that the agent was the principal prosecution witness and in such circumstances a very wide latitude should be allowed in his cross examination.

In a criminal case where prior discovery is necessarily limited, defense counsel often cannot know in advance of trial what facts may be brought out on cross examination. For that reason, his cross examination is necessarily to some extent exploratory, and he should be allowed a reasonable latitude even if he cannot state to the court what precise facts his cross examination will develop. A reasonable amount of exploratory questioning should be allowed, based on slight suspicion, especially when the Government's principal witness is involved.

In United States v. Pugh, 141 U.S. App.D.C. 68, 70, 436 F.2d 222, 224 (1970), we pointed out that defense counsel cannot have a foundation in fact for all questions asked on cross examination and that a well reasoned suspicion that a circumstance might be true is sufficient. This may not be the soundest practice for a trial lawyer but the circumstances in which defense counsel finds his client in many criminal trials frequently make it necessary.

We do not mean to indicate that either counsel on cross examination may, without a reasonable basis therefor, ask direct questions which tend to incriminate or degrade the witness and thus plant an unfounded bias in the minds of jurors which subsequent testimony cannot entirely displace. To authorize such cross examination the general rule is that the questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or the degrading act to which the questioning relates. If this rule is breached, the violator should be severely censured. Such practice is impermissible and should not be tolerated. At the same time where counsel has some basis, even though it may be very slight,¹ he may ask nonaccusatory questions regarding convictions or conduct of this type in a good faith attempt to impeach the witness.

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), a leading case on the available limits of cross examination, a conviction was reversed for refusal of the trial court to allow cross examination of a Government witness as to his place of residence where defense counsel had some information that the witness was in custody of federal officials. The opinion states many principles which are applicable here:

Cross-examination of a witness is a matter of right. The Ottawa, 3 Wall. 268, 271, 18 L.Ed. 165. Its permissible purposes, among others, are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood citing cases; that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment citing cases; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased citing cases.

Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply citing cases. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. 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

...