United States v. Norman

• Decision Date: 02 December 1968
• Docket Number: No. 19875.,19875.
• Citation: 402 F.2d 73
• Parties: UNITED STATES of America, Appellee, v. Earnest NORMAN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

402 F.2d 73 (1968)

UNITED STATES of America, Appellee, v. Earnest NORMAN, Appellant.

No. 19875.

United States Court of Appeals Ninth Circuit.

October 21, 1968.

Rehearing Denied December 2, 1968.

Harley C. Hardesty (argued), San Francisco, Cal., for appellant.

John S. Milano, (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, HAMLEY and JERTBERG, Circuit Judges.

HAMLEY, Circuit Judge:

Earnest Norman appeals from his conviction on three counts of an indictment charging violations of the narcotic laws,¹ and from the subsequent denial of a motion for a new trial.

One of his arguments in this court is that the evidence is insufficient to support the jury verdict of guilty.

The only evidence received at the trial was that which was produced by the Government. That evidence reflects the product of what has become almost classic procedure by the Federal Bureau of Narcotics in gathering evidence against persons suspected of narcotics violations.

On the morning of January 14, 1964, Government Agent Charles R. McDonnell monitored a telephone call between Porter White, a special employee of the government, and the defendant. During this telephone conversation White arranged to purchase a quantity of heroin from defendant. McDonnell and another agent then strip-searched White and ascertained that he had no narcotics in his possession. White was provided with government advance funds to enable him to purchase narcotics from defendant.

Next, McDonnell drove with White to 955-A Oak Street, San Francisco, where White and defendant had arranged over the telephone to complete the transaction. McDonnell remained in the parked car and observed White enter the residence at that address and come out a few minutes later. Other agents also observed White's entry and exit from this dwelling. White returned immediately to the automobile and gave McDonnell a balloon containing heroin. White was then driven to the Bureau office and again strip-searched. Fifty dollars of the advance funds were no longer on White's person.

Substantially the same procedure was followed with respect to the second transaction which occurred on the evening of the same day. This time, however, McDonnell saw defendant come out of the Oak Street house with White. Defendant was having some trouble with his automobile and McDonnell and White helped defendant push his car to a service station.

Concerning the third transaction, which occurred on February 18, 1964, there was no monitored telephone call. However, McDonnell strip-searched defendant and later saw defendant and White conversing on the sidewalk before the two entered the house on Oak Street. When White emerged a few minutes later he went directly to McDonnell's automobile and gave McDonnell a packet of heroin. The latter then gave White some government funds and watched while White handed a quantity of money to a woman at the front door of the house. The woman and another man had arrived and entered the house with defendant a few minutes before.

White testified at length on direct examination concerning all three transactions. He stated that on each occasion defendant sold him a quantity of heroin in return for money which White had obtained from McDonnell. White's testimony in this regard was not shaken on cross examination.

We hold that the evidence was adequate to sustain the verdict of guilty.

Defendant argues that the trial court unduly restricted the cross examination of White.

On direct examination, White disclosed that he had been previously convicted of a Dyer Act offense, and of the crime of pandering. White was subjected to a thorough cross examination which is set out in thirty-two pages of the court reporter's transcript. It was again brought out on cross examination that White had been previously convicted on two occasions. White also disclosed that he had received about two hundred dollars for helping the Federal Bureau of Narcotics.

In addition, White said that he first came into contact with Agent McDonnell in November, 1963, when he was being investigated for a narcotics law violation which led to his arrest on a still pending state charge. White testified that he had not been promised any leniency in the state case in return for his work for the Federal Bureau of Narcotics, but said that he hoped such work would lead to such leniency.

White was then asked, on cross examination, whether, during the period from November, 1963, when he first began working with McDonnell, to February, 1964, he had made many purchases of narcotics other than those made under the supervision of Agent McDonnell, or other agents. White declined to answer on the ground that the answer might tend to incriminate him. The trial court sustained the witness' exercise of the privilege and excused him from answering the question.

White was later asked, on cross examination, whether, during January and February, 1964, when the three transactions occurred, he had access to heroin from sources other than defendant. White again invoked the Fifth Amendment privilege against self-incrimination and did not answer. Counsel for defendant also asked White, on cross examination, if he had been in possession of heroin during January and February, 1964, other than the heroin involved in the three transactions here in question. White declined to answer, once more claiming the privilege against self-incrimination.

With regard to each of these three refusals of White to answer a question propounded on cross examination, counsel for defendant did not object to White's exercise of the privilege on the ground of the privilege being unavailable, nor did he move that because of the exercise of the privilege White's testimony should be stricken. Instead, counsel proceeded with a different question. Before the cross examination ended, however, counsel took pains to ascertain that White could not be deprived of the Fifth Amendment privilege on the ground that he had been granted immunity, the Government attorney stating that no immunity had been granted.

The right of cross examination is included in the right of an accused in a criminal case to confront the witnesses against him, as guaranteed by the Sixth Amendment. Smith v. State of Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed. 2d 956. Thus, while the extent of cross examination is within the sound discretion of the trial court (see Smith at 132), a restriction upon cross examination so severe as to constitute a denial of that right is reversible error. See Harries v. United States, 9 Cir., 350 F.2d 231, 236.

Here, however, the trial court did not, with regard to the three instances in question, restrict the cross examination. The restriction resulted from the exercise, by the witness, of his undoubted right, under the circumstances, to decline to answer on the ground of possible self-incrimination. As stated above, counsel for defendant did not, at the times the privilege was exercised, question White's right to do so. Moreover, we perceive no ground upon which counsel could have successfully objected.

The question, then, is not whether the trial court erred in restricting the cross examination of White, but whether all or part of the latter's testimony should have been stricken because he claimed the privilege as to the three indicated questions. As noted above, there was no motion to strike White's testimony. The failure to do so could therefore be ground for reversal only upon a showing that it constituted plain error affecting substantial rights. See Rule 52(b), Federal Rules of Criminal Procedure.

Counsel for defendant apparently had two purposes in propounding these questions to White. One was to undermine White's credibility as a witness by requiring him to disclose that he had engaged in other unlawful conduct during the period in question. This was a purely collateral line of inquiry in the sense that the questions were not concerned with the details of his direct examination. As to this collateral line of inquiry White had already disclosed that he had been convicted of two other crimes and that a narcotics law charge was then pending in a state court....