United States v. Birdie Louise Joshua Harris, United States of America v. Billy Charles Harris

KILKENNY, Before ELY and Circuit Judges, ENRIGHT, Judge* District OPINION ELY, Judge: Circuit appealing defendants tried together, being charged each with four violating counts of 21 U.S.C. § 841(a)(1). Counts One and Two charged that, January 22, 1973, on both Billy Birdie Harris and Harris know- 19,05 ingly intentionally possessed grams of heroin with intent distrib- it, they knowingly ute and that and in- tentionally distributed that substance. similarly Counts Three Four charged that, February 8, on both possessed defendants with the intent to distribute, they distributed, and that grams pleading 352.1 After heroin. guilty, both Birdie Harris Harris were convicted on all summary four counts. A brief facts, light in most favorable to the * Enright, Honorable B. William United The two are not related. Judge, Diego, California, States District San sitting designation. Agent day. on Mueller Government, See fected follows. Glasser Ingle- the BNDD drove Durden to the residence, wood this occasion L.Ed. Durden entered the house Al- alone. primarily- prosecution’s case was though people there were six in the upon infor- of an based house, the sale was conducted in the mant, Durden. The first transac- John Billy same manner as the first sale. arranged by Durden in a tele- tion was Harris first motioned Durden to accom- Billy phone Harris. conversation with Again, pany him to the rear bedroom. expressed purchase Durden a desire to bedroom, once in the Birdie Harris to come an ounce of heroin and was told although substance, handed Durden the Inglewood, California. to a house on this occasion the transaction involved Jackson, Durden an undercover and John purchase twenty contraceptives the agent the Bureau of Narcotics explained heroin. Durden Birdie Dangerous (hereinafter Drugs Billy Harris Harris that it would be “BNDD”), Inglewood drove to the ad- necessary telephone that he friend a for Although Dur- both Jackson dress. requisite purchase money, the in- house, den entered the remained Jackson by stead, prearranged signal, means of a Billy in the kitchen while Harris and agents he informed over BNDD proceeded Durden to a rear bedroom. telephone the that the heroin had been Harris, already present Birdie who was transferred. Billy in the bedroom when Harris and there, Durden arrived offered Durden agents approached Federal the contraceptive one full of Dur- heroin. house and entered without first obtain- explained Jackson, friend, den that his ing an arrest or search warrant. As the money, the had and he walked back agents approached, placed Durden the obtaining pur- the kitchen. After the contraband in a kitchen cabinet. All of money Jackson, chase from Durden re- occupants the the house were arrest- completed turned to the bedroom and the ed, including being Durden. ar- While purchase. rested, agent Durden informed one that February The second sale occurred on the heroin was concealed the kitchen.2 again being prearranged in a evening, agents Later pro- that the telephone Billy conversation between cured a search warrant based on the af- Harris and Durden. Since Durden had agent fidavit of The affidavit Jackson. previously expressed pur- an interest in only contained such facts as were chasing known heroin, a substantial amount of Billy prior agents’ entry February Jackson Harris the informed him on 9th that a During substantial sale could ef- into subsequent the house.3 conflicting provided There was past evidence over who has information manner in which Durden informed the feder- separate which has led to at least ten agent prosecutions al that heroin was the kitchen. and convictions: vocally Durden February testified that he told the “On this informant agent Billy heroin was concealed had a conversation with Charles agent testified, however, kitchen. concerning purchase by Harris in- by Durden quantity indicated the kitchen area a formant from Harris of a her- nod of his head and day that Durden intentional- oin. About 8:00 P.M. Harris told ly remained silent quantity so as not to disclose to the informant a of heroin suspects capacity govern- the other as then inside a house whose address ment Avenue, Inglewood, informant. was 9712 11th Califor- nia. agent 3. The agent affidavit of Jackson contained “A BNDD then drove the inform- following: by ant to this house and waited tele- by phone “I have been informed other BNDD booth while the informant went in- agents Shortly as follows: side. afterwards informant “They following telephoned waiting agent were informed and told him informant, facts quantity confidential reliable he had seen a of heroin inside agents private counsel, house, to retain discov- her desire search grant her motion cabinet court refused to for a kitchen ered and seized grams continuance. After the had been approximately of heroin. impaneled, the trial was ad- selected princi- trial, Durden At John morning. following journed until government pal His witness. apprised The court Birdie Harris that prosecution’s case tvas crucial Mr. could as her Gordon be substituted since, although was searched Durden attorney if he were the next agents prior to federal contraband morning. only gov- transaction, he was the each sales. to both of the ernment witness 19th, Thursday, April Birdie Har- On testified that Harris Since proceeding repeated objections ris her given money inwas him Durden appointed with her counsel after gambling payment debts and long- explaining that was no Mr. Gordon alleged occur, sales did not heroin granted er available. The court a half- credibility decisive Durden’s was a recess, suggesting hour another at- that issue.4 torney provided could be the Public urged upon us The first contention recess, Defender’s office. one After here is that the trial court abused appeared Vodnoy and that he had stated grant discretion it refused to when by private been retained as order Birdie continuance in Harris a permitted Birdie Harris. The court newly private that her retained counsel Vodnoy to be substituted as counsel for prepare Originally, could trial. Harris, clearly explained Birdie but that appointed counsel for Birdie Harris was allowing it was the substitution on the of from the Federal Public Defender’s condition that the trial would not be fice, 9, 1973, February on time at the delayed. Vodnoy further Mr. Because complaint the April filed. date of was A trial pending had matter the state court set, 17th was the trial day, on court that trial continued postponed day Billy Harris one morning. the trial until the next When was not on the until 17th. Not Friday, recommenced de- morning April 18th Birdie did fense counsel for a moved further con- Harris inform the court and that she Monday tinuance until so that he could appointed incompatib her counsel were prepare have more time to for trial. le.5 She informed the court that on The motion denied. Birdie Harris previous evening the private had retained she contends that she was denied effective Gordon, counsel, a Mr. and by assistance of counsel the trial court’s that she desired a continuance. short action. delayed, Since Birdie Harris had with grant explanation, out rational until or denial of a mo morning of tion for trial inform continuance rests within the court of “I am house. I know also informed a reliable that least three inform- prior of the ten ant that convictions the in- contraband substance is in ” helped bring formant located in has he fact . . . about has the residence . identified material as heroin which later Although tape-recording telephone of a laboratory analysis has indeed shown be Billy conversation between Durden and Har- heroin.” introduced, ris was that conversation did not description premises, After af- include term “heroin.” Instead the term fidavit concludes: “wigs” was utilized. Both Harris and Agent Special “As [a] the Bureau of his wife testified that conversation relat- Dangerous my Drugs Narcotics and purchase wigs ed from the experience that contraband substance owned store Harris wife. and (heroin) usually during late moved evening early morning Apparently opin- hours of Birdie Harris was of the attorney plead hours. her Because ion that desired that she feel that rep- guilty that, therefore, contraband he should secured whatever would not possible. effectively means her resent at trial. judge, support m contended that the affidavit sound discretion misleading in reversed absent of the Search warrant was not be his decision will Avery that it failed to disclose material facts. that discretion. a clear abuse of agents 321, They initially Alabama, 444, claimed that v. 60 S.Ct. (1940) ; Daut v. United entered the house to arrest the occu- L.Ed. 1968), announcing pants States, (9th without first their au- Cir. 405 F.2d 312 1624, thority denied, purpose, required by 91 S.Ct. 402 U.S. cert. Appellants’ (1971); Torres v. Unit U.S.C. 3109.6 contention 29 L.Ed.2d 114 § (9th 1959), premise States, is based on the if F.2d 252 Cir. ed hearing denied, court had determined after a 362 U.S. cert. illegally (1960). This arrest- 4 L.Ed.2d ed, proper subsequently previously then the evidence held that a trial court seized pursuant ly it re to the search its discretion when warrant would acts within counsel on have been inadmissible. The trial court to allow substitution fuses Price, hearing, ruling refused trial. States v. to conduct a the eve of United (9th 1973); impermissible it was for a trial court to 474 F.2d Cir. Good (9th inquire accuracy States, F.2d 934 Cir. into the of a search 1967); Craven, warrant affidavit. Brown cf. (9th Bailey In Cir. Unit stipulated The Government (9th 1960), ed 282 F.2d 421 Cir. agents procured had not arrest denied, prior warrants search their initial (1961), rejected 5 L.Ed.2d 705 a sim we entry Inglewood into residence. n upged. ilar contention to that here is clear that the criteria of section 3109 There, too, permitted the trial sub court apply to forceful entries wherein the stitution counsel on the condition that agents procured warrants delay thereby. no would result Al States, Sabbath v. United 391 advance. though represented Birdie Harris was 585, 1755, 20 L.Ed.2d 828 88 attorney an Defend the Public (1968); States, Miller v. United 357 U. approximately er’s office two 301, S. L.Ed.2d 78 S.Ct. 2 1332 months, she did not inform the court of (1958); United States v. Bustamante- any day dissatisfaction until the of trial. Gamez, (9th 1973), 488 F.2d 4 Cir. permitted The trial court substitution of denied, 1993, 40 94 S.Ct. Thursday clearly ex (1974). L.Ed.2d 559 plained that the trial would resume on think that erro- We court circumstances, Friday, Under these we neously permissi- ruled that it was never persuaded are not that the trial court accuracy inquire to ble as to the of a abused its discretion. See United States search warrant affidavit. In United Simmons, (9th v. F.2d Cir. Bolton, (9th 1972), explained: we Cir. Next, appellants, although conceding general legality proposition, “As a support that affidavit depends upon of a search warrant facially search warrant sufficient was sufficiency underlying affidavit argue probable cause, establish on its face and the is wheth- improperly trial court refused conduct magistrate er the could determine evidentiary hearing an to test the accu- probable upon existence of cause during racy trial, of the affidavit. At matter asserted in such affidavit.” omitted.) (Emphasis added; suppress, appellants footnote their motion provides authority purpose, : of his he is 18 U.S.C. tice § necessary may open any “The refused admittance officer break outer person aiding house, him in or inner door of a liberate himself or a or window any part anything therein, house, of a the execution of the warrant.” warrant, if, to execute a after no- search arresting Bolton, n. we indi- cers violated section F.2d at In appellants however, initially, doc- cated, a defendant under the that when Wong showing trine of su- of false- Sun v. United a substantial can make pra, mag- pursuant imposition upon seized the evidence to the hood or other required In search warrant was admissible. istrate, then the trial court circumstances, hearing concerning the truth these the trial court was conduct a refusing justified affidavit. to conduct a in the hear- facts asserted ing accuracy recently concerning Furthermore, held in United of the affi- we (9th Damitz, F.2d 50 Cir. davit. States 1974) pre- the facts there that under appellants’ third contention is properly permitted sented the trial the trial court erred when veracity a de novo determination refused admit into evidence written the affidavit. See Her statement of one Patricia Hamlin. 1973) (7th Carmichael, F.2d Cir. alleged reported statement conversa- (en banc) ;7 Rugendorf see also v. United In Hamlin and tion between Durden. 528, 531-532, States, 376 U.S. purportedly Durden that conversation 11 L.Ed.2d 887 attempting falsely he stated that implicate Billy Harris because he owed hand, however, In the case at money Harris a substantial sum of we conclude that the did not gambling debts. required showing. make the initial They neither asserted nor demonstrated Appellants attempted first to obtain alleged illegal conduct testimony in Hamlin’s court as subsequent manner contributed to the contents of the conversation. As she discovery or interrogated concerning seizure When evidence. her rela- illegal police there has been conduct tionship Durden, began she to tes- prior evidence, tify to the seizure of the ad purported her transactions missibility depends that evidence involving with him heroin. At “ upon whether ‘the evidence to which point, judge interrupted her objection instant made has been come privi- her of her advised by exploitation illegality lege at of that under the Fifth Amendment not to sufficiently instead guishable means distin testify. After a short recess which purged primary to be attorney, Hamlin consulted with an she ” Wong States, taint.’ Sun v. United privilege. exercised that Counsel 471, 488, 417, 407, 371 U.S. appellants attempted 83 S.Ct. 9 to introduce (1963); L.Ed.2d 441 see Nardone v. prepared by the written statement Pa- States, 338, Hamlin, 308 U.S. 60 S.Ct. tricia the trial court exclud- 266, (1939); 84 L.Ed. ground 307 United States ed on the that defense counsel Cales, (9th 1974); v. 493 F.2d rights 1215 Cir. had not warned Hamlin her Bacall, United States v. Arizona, F.2d 436, 443 1050 under Miranda v. 384 U.S. (9th Cir.), denied, 1004, 1602, cert. 404 (1966) U.S. 86 16 S.Ct. 694 be- L.Ed.2d 965, 92 (1971). obtaining S.Ct. 30 L.Ed.2d 557 fore the statement. Since assuming arguendo Even warning that the required offi- Miranda Circuit, banc, recently showing The Seventh en he has made an initial of either right (1) following: any misrepresenta- considered the issue of a defendant’s hearing purpose testing government agent to a for the tion of a materi- credibility agents (2) fact, any misrepre- of Government al whose affi intentional magistrate. government agent, davits are before the The court sentation wheth- held, Carmichael, in United States v. 489 F. er or not material.” F.2d 489 at 988. (7th 1973), 2d 979 Cir. federal er or not material.” 489 F.2d at 988. required evidentiary substantially adopted, to conduct an The Seventh Circuit hearing modification, proposal suggest- under certain : circumstances with one Kipperman, “We now hold that a defendant is enti- ed Inaccurate Search War- hearing Suppressing tled to a which delves below the rant Affidavits as a Ground facially Evidence, (1971). surface of a sufficient affidavit if 84 Harv.L.Rev. 825

7 interrogation,” sequently “custodial how- offered there is ever, at trial under circum- Arizona, provided v. 384 at stances that Miranda U.S. considerable assur- 1602; 444, reliability.” v. Be- ance of their at 86 S.Ct. 410 U.S. 8, 1970), 300, kowies, (9th Here, Cir. 93 S.Ct. 1048.9 were there guarantees on not the trial court excluded statement sufficient of trustworthi- Nevertheless, the ness an incorrect to render the basis. statement admissi- Walling, properly ex- could have been ble.10 See United statement States v. hearsay (9th 1973) ; 229, evidence. 486 F.2d cluded as inadmissible 238-239 Cir. Matlock, United States v. 415 U.S. cf. argue, however, Appellants 164, 988, (1974). L.Ed.2d statement, implicated the written Appellants’ forth contention is that activity, illegal quali narcotic Hamlin right the trial court denied them their against penal her fied as a declaration effectively to cross-examine the Govern law of this interest.8 Under the current informant, They ment specifi Durden. Circuit, a statement is not admissible cally point permitting to the court’s solely hearsay exception rule Durden to questions refuse to answer against penal interest because it is regarding his resident Al address. United States Wall of the declarant. though name, Durden disclosed his occu 1973) (9th ; ing, Sco (9th F.2d 229 Cir. pation, address, and business States, F.2d 563 lari v. United objec court sustained the Government’s denied, Cir.); 395 U.S. question regarding tion to a (1969); see L.Ed.2d 769 S.Ct. Government, residence.11 The lenging in chal Donnelly United question, defense counsel’s (1913). Ap 57 L.Ed. 820 S.Ct. ground objection. silent as to the for its apparent pellants, reliance Cham Nor did Government, time Mississippi, bers during trial, indicate that the informer (1973), 1038, 35 L.Ed.2d 297 con danger. Additionally, believed he was in exception that the must be invoked tend objections the trial court sustained disagree. In We Cham case. questions defense counsel’s which at bers, hearsay statements involved tempted “[t]he bias, to demonstrate Durden’s originally prejudice, . and sub- made or motive.12 The record is Apparently Proposed im- intended to Rules of Evidence for United peach prior Magistrates. Durden inconsistent Courts allegedly statements made to Miss Hamlin. 11. As defense counsel for Birdie Harris be- McCormick, Evidence, See Law of § gan Durden, his cross-examination of John following occurred: Supreme specified your 9. The Court four factors “Q. What is home address? provided reliability your Objection, which assurance of MR. CAMERON: Honor. extrajudicial (a) the statements: the declar- is That irrelevant. your Illinois, ant’s out-of-court confessions made MR. were VODNOY: Smith vs. spontaneously, shortly Honor. after the murder oc- ; (b) objection curred THE confessions were corrobo- COURT: The is sus- by evidence; (c) rated other tained. confessions very self-incriminatory “in real sense MR. VODNOY: vs. Illinois. S[m]ith unquestionably against and interestand move— (d) present the declarant was at Honor, and available for MR. cross-examination concern- VODNOY: Your I would ing extrajudicial testimony truthfulness of move to strike this witness’s grounds Mississippi, right statements. v. Chambers 410 have been denied the 300-301, at U.S. 93 at 1048. S.Ct. confrontation of where he lived. objection THE COURT: The is over- fact, 10. In it is not clear that the statement ruled, 171, the motion is denied.” [R.T. qualifies against as a declaration interest 172.] proposed under Federal Rules of Evi- portion prevented dence since the of Hamlin’s state- The court defense counsel from reports asking following questions ment which the conversation with : way subjects you any in Durden no Patricia Hamlin “Q. Do receive consideration liability. (b) (4), to criminal Rule 804 See from the Government? 8 (1953); see 369, to the deemed L.Ed. as reason the court 73 97 447 barren S.Ct. Kartman, inquiries improper. v. 893 these (9th Cir. right Manifestly, of an accused Supreme Court, The in Alford v. Unit- against him the witnesses cross-examine States, 218, 687, ed 282 75 U.S. 51 S.Ct. in clause embodied the confrontation (1931) again v. in L.Ed. 624 Illinois, Smith Amendment. Davis of the Sixth 129, 390 U.S. 88 S.Ct. 748 1105, Alaska, 308, 39 94 415 S.Ct. U.S. (1968), definitely has established Douglas (1974); Ala

L.Ed.2d bama, concerning inquiry the residence 1074, 415, L. 85 S.Ct. U.S. only proper is not witness es- also Indeed, “[c]ross-ex Ed.2d 934 sential to effective cross-examination. principal is the means amination As the Court stated in believability witness and of a Alford: truth are tested.” of his you “The ‘Where do live?’ Alaska, 316, 94 at S. Davis v. U.S. appropriate prelimi- case, at 1110. In the Ct. nary to the cross-examination in the Government cross-examination witness, face, but on its without importance formant was of utmost since purpose such declaration of credibility reliability may well his here, made was an essential guilt determined the or innocence have identifying step in witness appellants. Illinois, Smith U. environment, to which cross-exam- 748, L.Ed.2d S. may always ination be directed.” 282 (1968); Giglio States, 405 see v. United U.S. S.Ct. L.Ed.2d principle The reiterated Court ex- (1972). Although recognize we that the pressed years almost 40 later Alford the con wide latitude in Smith v. Illinois: principle cross-examination, trol “this expanded justify cannot be a curtail credibility of a witness “[W]hen is in ‘exposing keeps issue, very starting ment which relevant point important bearing bringing on the facts falsehood out testimony.” through trustworthiness of crucial the truth’ cross-examination necessarily v. United Gordon must be to ask the witness expense, nothing. Objection. A. Other than the MR. CAMERON: words, InQ. other the Government has THE COURT: Sustained. against you charges you appearing not dismissed criminal Q. Are this case as exchange your assisting good spirited public ready the Govern- citizen testi- ment, fy? is that correct? Objection, your Objection. MR. CAMERON : Honor. MR. CAMERON: objection objection THE COURT: The is sus- The sus- tained. tained. anything gain Q. Do tes- helping against tifying Q. How come are the Gov- these defendants? Objection. ernment? MR. CAMERON: Objection. objection MR. CAMERON: THE sus- COURT: objection is sus- tained. goes Honor, tained. MR. VODNOY: Your Honor, goes very VODNOY: Your heart— not, to bias. COURT: THE does counsel. objection put proper. The is sus- Now which is tained. VODNOY: I would strike MR. move to testimony grounds strike VODNOY: I move to this witness’s on the grounds being right witness’s am con- denied the [that] being right denied the of confrontation. frontation. THE is denied. COURT: motion That be de- motion will 163, 174, [R.T. 179-80.] nied.” pending any Q. Have at had cases any time that have testified Government?

9 essential, 1970). (Chadbourn rev. It is he lives. and where who he is credibility critical open witness’ count- name and address witness’ case, that defense to the Government’s in-court examination avenues of less given opportuni- investigation. a maximum “be To counsel out-of-court exploring credibility by ty inquiry that rudimentary test this most forbid testifying.” effectively motivation emas- the witness’ threshold is at the Rodriguez, 439 F.2d v. right of cross-examination culate the 1971); 782, (9th (footnote see 783 Cir. at itself.” 390 U.S. Kartman, In 417 F.2d at 897. v. omitted), States at 750. in this case our defense view recognize in that some We attempts unduly in their restricted were legitimately the trial court could stances any possible prejudice bias expose permit witness not to disclose his part Durden. on the subject may If residence. the answer humiliation, harassment, the witness to argues The Government danger, then nondisclosure of the wit placed upon ap any restrictions may justifiable. ness’ home address right Durden pellants’ to cross-examine 218; 694, Alford, 282 U.S. at 51 S.Ct. Janis, Brookhart v. harmless error. was Illinois, at 133-134 Smith U.S. 1, 3, L.Ed.2d 86 S.Ct. (Mr. White, concurring); Unit Justice declares, however, that (1966) Marti, ed F.2d right cross-ex denial of the to effective (2d here, But neither the Cir. error amination is constitutional nor the indicated Government witness not demonstrate need that the prevent the reason for a desire to thereby. they prejudiced were See open-court disclosure of Durden’s add Alaska, U.S. Davis v. ress.13 Moreover, we do L.Ed.2d ultimate conclusion on not rest our compounded The trial court ground at the must look also alone. We restricting ques- error counsel’s they appellants’ de were contention tions directed at Durden’s motive for fair trial because of nied a testifying preju- possible and his bias participation A therein. court’s active 12, supra. dice. See note The law thorough convinces the record review of long recognized “the force of a hostile judge overstepped the us that the trial emotion, influencing probability as telling judicial propriety exces bounds of ; par- of truth tiality . . . pro sively interjecting himself into the always of mind is therefore rele- ceedings below. discrediting vant as af- witness and fecting weight Aside from the limitations that testimony.” of his during placed on defense counsel Wigmore, court 3A Evidence 940 at 775 § disclosed, Teller, 13. In were Sev United States v. Government (7th 1969), dissent, defendant was not enth Circuit held that Cir. cited objec denied effective cross-examination. trial court sustained Government’s Teller, question seeking In of the informant’s the disclosure tion to a the informant’s previous residence and the Government’s address at the time of trial. The informant opened permitted testify, however, treatment him ave- was the “countless that he presently residing govern and out-of-court nues of in-court examination a motel at investigation.” Illinois, expense. pre Smith ment He disclosed his also Conversely, address, in the 88 S.Ct. at 750. vious which was his residence opportunities appeal, same these the time the offense was committed. Addi investigation tionally, examination the informant testified as to explanation prior defendants, available and no and his use of narcotics. convictions given explained expected help In the con- He also for this foreclosure. that he by testifying restrictions on text of the trial court’s other himself in the be Government’s par- permitted and of its excessive half. wide cross-examination Since ticipation trial, concerning the non- we think cross-examination the informant’s signif- past record, of Durden’s address was of and since both the informant’s disclosure import. previous icant residence and his treatment (9th cross-examination, judge Cir.), denied, trial the the prosecutor L.Ed.2d 124 the to the aid of came often by interrupting counsel defense unduly participating in the trial. With Relating Ad- See ABA Standards the to detailing which the occasion in out each Justice, of The ministration Criminal pro interjected itself into the trial court Judge 1.1(a) of Function the Trial § ceedings, merely point to the in we (1972).18 may Indeed, the trial court the court over cross- when the stances participate properly in the examination Billy and of Harris his examination of “clarify- purpose of witnesses for the of wife,15 when the and of instance an ing controlling orderly evidence, the the attempted to the court itself establish confining presentation evidence, of the government expertise witness.16 of a evidentiary rulings, pre- to Substantially in trial court’s all of the venting repetition testimony.” undue of otherwise, intentionally terruptions, or Malcolm, F.2d United States prosecution.17 the aided (9th But a trial court Cir. is, course, well settled of ever must be mindful of the sensitive that: jury plays role trial and avoid appearance par- advocacy of even the judge “A federal trial ... tiality. Malcolm, umpire. more than a He moderator (9th 1973); preside F.2d see responsibility Cir. ABA the has Code, way of Judicial promote Conduct Canon 3 such as fair and n expeditious (Adopted development the Judicial Conference of the of facts States, Apr. 1973); the see also United unencumbered irrelevancies.” ABA of No. Canons Judicial Ethics Smith F.2d court, During case, the the close of defendants* the Government’s cross-examina- 14. Billy Billy Harris, counsel for tion Harris moved for mis- of the Assistant United Attorney began inquire trial : about totally Honor, respectfully tape-recorded telephone “Your terms used in move grounds apparently disap- the court for a conversation. mistrial on the The court proved province questions the court has prosecution by taking. of invaded of the the Government’s be- interrupted cause the questions over the Govern- ask its own case, thereby hopelessly prejudicing concerning tape-recording. ment’s against proceeded complete The court the defendants. the cross- your Harris, portion “I understand examination Honor allowed of interject testimony case; however, covering pages himself in the four of the tran- script. gone beyond 323, 323a, 324, [R.T. [feel] the record.” 325.] [R.T. 344.] explained 15. Harris’ wife testified and operation 1.1(a) wig Standards, 18. Section of the ABA The business that she Judge (1972) pro- and her Function of the husband owned. Trial After Govern- completed cross-examination, ment vides : again began judge responsibility ques- court tioning “The trial its own extensive safeguarding rights concerning terms used in both of ac- the. public recorded cused and the conversation. interests of the [K.T. 333-38.] justice. of administration adversary criminal The Government introduced the proceedings The nature of the agent relating of an of the BNDD to certain judge does not relieve obli- Inglewood materials found in the residence. gation raising initiative, own agent testified that the materials were appropriate appropri- all times and sugar prod- lactose and milk these manner, may signifi- ate matters which commonly “cutting” ucts were used just cantly promote a determination certain narcotics. When one of the defense only purpose trial. a criminal n attorneys objected agent’s testifying prosecu- is to determine whether the requiring expertise, ato matter guilt tion has established the the ac- immediately interjected court questioning into itself required by law, cused as and the trial agent’s expertise to establish the proceedings should not allow the purpose. for this [B..T. 251-52. J purpose.” be used for other Although object did not defendants interruption each of the trial Government, participation of the witnesses on behalf of the 15.19 When coupled designed unnecessarily judge severe re- to elicit answers upon Government, imposed in “it is far defense counsel straints favorable to attempted judge err on the their cross-examination of to better Durden, [ajbstension could have intervention.” influenced side of Blumberg adversely appellants. to the more Even v. United critical, 1955) (5th ; accord, the court’s conduct could Cir. (D.C.Cir. impression Green, also created the 429 F.2d 754 erroneous States v. performing 1970). the court itself was not impartial role. Cf. therefore, In conclusion we hold that Foster, (9th 500 F.2d 1241 Cir. the cumulative effect of the trial court’s examining participation and Reversed remanded.20 in excessive During the the in- Ethics cross-examination 19. 15 of the Canons Judicial Canon interrupted formant, Durden, following: provides the court often questioning. judge may properly a defense counsel’s “A intervene in you promote expedition, Have ever used “[MR. WYATT:] and trial of a case to prevent unnecessary time, the name Durden? or to John Willard waste of up obscurity, A. I haven’t. he should No clear some September 18, interference, a Q. his Isn’t fact that on bear in mind that impatience, undue participation 1969— in the examin- or counsel, on, ing witnesses, THE let’s a COURT: Come severe attitude get something witnesses, especially part those relevant to this case. his toward Honor, MR. I unusu- WYATT: Your think who are excited or terrified may trial, relevant. al prevent of a tend circumstances relevant, proper presentation THE Mr. COURT: It not Wyatt[.] happened cause, in 1969 is [W]hat of the truth or the ascertainment happening respect not relevant to what was thereto. judge and between the “Conversation necessary, but in court is often you saying Harris, con- Do recall to Mr. Q. should be studious to avoid ‘Okay. right, now, apt All how often —’ troversies are to obscure you dispute litigants Counsel, reading THE and COURT: are between merits transcript. play unjust disposition. ought the tape In address- You lead to its counsel, litigants, witnesses, ing he now. No, your WYATT : manner or MR. Honor. should avoid controversial get THE Then let’s to what is tone. COURT: interruptions really “He should avoid of counsel evidence. except clarify you. arguments MR. Thank their WYATT: positions, he should mind as to their display tempted unnecessary Why [MR. was it that VODNOY:] not be going testify learning judgment.” premature Govern- ment? Contrary expressed get Counsel, to the conclusion let’s dissenting something opinion, thorough review of relevant. goes prej- tire entire leaves us with no doubt record VODNOY: to bias and were denied fair trial. udice of the witness. impact The whole of the court’s behavior It does Get not. cannot, truly accurately something course, relevant. reproducing reflected without transcript entire Durden, Mr. Q. so that the court’s actions can be when was the next time proper Throughout ready either viewed their context. testified or stood to tes- interrupted tify against somebody the court defense coun- on behalf of sel, prevented pursuing counsel from Government? defense evidentiary arguments, abruptly Maybe A. ordered ’70 or ’71. remember. don’t interrogation Q. defense counsel to continue the or’71? explaining A. of witnesses without its various Yes. evidentiary rulings. you testify you ready Q. unusual Did The court’s or were testify? atmosphere manner created an in which an objectively No, A. fair trial could not be conducted. did not. examples testify? Q. A few You did of the court’s comments A. No. actions follow. What could be more rel- MR. VODNOY: ? evant in to? case reference was that Q. What argue Counsel, THE not COURT: do it? What kind of case was question.” with me. Put a something rele- THE COURT: Get 177, 178-79, 189-90, 156, 159, 210- [R.T. nothing this to do with vant. That has 11.] lawsuit. trial, jury Later the after the was ex- Honor, I : will. MR. VODNOY Your dispute courtroom, from the a arose cused Counsel, put question. a THE COURT: stipulated as to whether the defendants had May the X state for MR. VODNOY: Appar- the seized material was that heroin. record— Billy ently had not Harris’ question. a COURT : Put THE agreed stipulation, to the had either of nor on You have testified VODNOY:] [MR. the defendants. The trial refused to previous you testified in direct that the allow defense counsel to discuss merits ; is that correct? cases validity stipulation. case, counsel. THE COURT: One Honor, “MR. Your the VODNOY: cross[,] not That is on MR. VODNOY: just previously repre- bench Mr. Cameron on direct. previous counsel, Mr. sented that both right. : THE All COURT Wyatt, signed Isaacman stipulation Mr. had the matter and therefore the was money. handed She A. I handed her the going put Monday as far to be over to contraceptive package. with the me the the chemist. money. counted the Then she right. THE That is When COURT: you testified. That is not what Q. something expect rely counsel do I can moment, a Mr. Vod- THE COURT: Just upon say what counsel to the and to noy. rely other counsel. If I cannot that : I would— MR. VODNOY might as we well close the doors. No, coun- statements THE COURT: May your finish, MR. VODNOY: I Hon- what testified to or sel as to what was or? isn’t That admis[s]ible. was not THE No. COURT: jury the to determine. here, Mr. him Isaacman is I see the fact, Mr. Isn’t it a VODNOY:] [MR. courtroom. Durden, as fol- that on testified direct Isaacman, you sign stipulation Mr. did a lows— with reference the chemist’s test are not here to THE We COURT: in this case? direct, memory of he testified on what signed stipula- MR. I ISAACMAN: jury determine, is for the counsel. tion, your Honor, understanding with the question. Put a my going sign stipu- client was lation also. meeting Q. about Tell my MR. WYATT: The same situa- was shop. by you wig was said What tion, your signed Honor. ex- it with the said Harris? what was Mr. my pectation client [that] would. wig meeting in A. There was no MR. VODNOY: Can Mr. Isaacman be shop. heard more on this? Monday meeting you had on Q: The No, THE : COURT that is all. lie made $40,000 Tuesday up that set sale? representation A. I said he me to come out to told Attorney and sufficient. shop. shop, was It was not Well, MR. : VODNOY I understand— south across street —it rely upon THE COURT: If we cannot side next street on the west corner counsel then we better close the doors. shop. from the say my MR. VODNOY: I want to client cof- Was that a Q. Where that? Harris, nor did Mr. neither two the de- shop something? fee agree fendants to that. No, A. it is not. correct, your MR. WYATT: That Q. is it? What Honor. A. is book. They going THE COURT: are not to be Q. It is what? prejudiced by ruling of the court A. book. A any event.” [R.T. 266-68.] Q. A book? Throughout trial, during interroga- operation. A. A bookie witnesses, tion of other the court felt free operation? interrupt Whose bookie Q. A bookie defense counsel. When Birdie operation? questioning Harris’ Harris, counsel was following A. Harris’. occurred: Counsel, get gather, let’s “[MR. THE COURT: VODNOY:] Mr. Harris something relevant. moment, counsel. THE Just a COURT: question. That does Put Vodnoy. No, Don’t Mr. need answer. questions.” anything. gather ask Just me what VODNOY:] Tell about [MR. 309.] [R.T. relationship your academic credentials duty in- it had also felt that The court qualifications have with what do? during tervene government the cross-examination your Objection, : Honor. CAMERON interrogation con- chemist. objection is sus- qualifications cerned chemist’s 367, 369, 370-71.] [R.T. tained.” determined method which the chemist Although trial have concluded that we composition entire chemical denying court acted within discretion by analyzing grams of material seized continuance, we Birdie Harris’ motion a for grams. 1.7 in which the mo- cannot condone the manner method statistical is “Q. What Birdie tion was handled the court. While representativeness test to [used] represented by being Mr. Harris still samples? heroin Isaacman of the Public Defender’s Federal part and each A. take some from You transpired office, following exchange : up together it on and run mix them Honor, “MR. : Your Mrs. ISAACMAN composite. ready Harris is not trial and would you if are [tak- I is Q. What mean No. a me seek continuance. She tells short grams ing] just grams how 1.7 out of 352 counsel, gentle- private has she retained a grams has I do know that the other man name of Walter Gordon grams thing ? as the the same 1.7 represent her, he will she tells me. you THE did Mr. COURT: When to talk principle Is there some scientific Q. Gordon? upon you form that conclusion? : Last HARRIS DEFENDANT BIRDIE night. as- A. is a That scientific late. THE is too That COURT: sumption. Isaacman who trial Mr. Start with Q. scientific treatise? What appointed you. has been A. In other words— to I should indicate MR. ISAACMAN: assumption? Q. —outlines that given Mrs. has not the court Harris anything analytical A. to For chemist do not case. She has me her version of the get sample he has a mixed. to And then cooperated not with me and does gets representative sample. he a represent Ac- her. in me confidence cordingly to right. Q. All prepared to I am not composite A. Then make a run and then her defense. a test. just Well, do she cannot THE COURT: I I Q. understand that. understand just that, that. back and do She sit that. can’t take— You be- times several court house been this using Vodnoy, THE is Mr. he COURT: arraigned this she was the time tween sense. the statistical method of common want did not If she to trial. matter came get something Now to relevant. plenty you of time had then she to talk to right. MR. That is what VODNOY: All court. to advise this you your say, is that what he Honor. Is [R.T. is denied.” continue to motion saying? 12-14.] moment, THE counsel. COURT: Just Vodnoy 19th, Thursday, April after Mr. On put question. Now Harris, for Birdie as counsel was substituted Honor, I would Your VODNOY: colloquy following : occurred object— I satisfied that I am “[MR. VODNOY:] question. discovery THE Put a given COURT: full have been Government. your looking ac- process [MR. VODNOY:] [have] What ma- I am in the qualifications my your belief, ademic parisons do with the com- to time. is terial at this Why you making? I Honor, are can’t I like to schedule would just by comparison make same learn- suppress the warrant to reverse motion to ing something supposed to what color law time research the I need [sic]. supposed turn or I am on the what see that matter. sup- chromatographer what I am [sic] or representing Also, I believe terms posed crystal? see on a appropriately I if could this defendant Vodnoy, you prepare THE COURT: Mr. case on have Monday end this the week expert. one-day know are an I is a if it be: adequately prepared. know lieve that I can be MR. VODNOY: I would like to possibly any lawyer could do think what his— Judge However, KILKENNY, (Concur- as Circuit concur in this result. dissenting): ring agree contentions, I cannot the last two majority’s ac- conclusions and ap- majority error found no cordingly dissent. pellants’ three contentions first my all ener- I have devoted trial because night gies 1:30 this from 1:30 last until magnitude prepared on a ease of sup- morning prepare motion to for the day. one press. Vodnoy, you proba- Mr. you prepared If the mo- bly a hundred like this. have tried cases Vodnoy, no, suppress, tion to Mr. — complicated factual situation This is not a ready because that have to be for trial legal situation, one.” 73- [R.T. either what this is all about. 74.] may briefly state If I MR. VODNOY: morning, counsel renewed The next defense you put part that a of the trial whether attempted for a continuance and his motion I have or not. defendant on the stand grounds state his for such motion. opportunity inter- one had no other than particular in- In this “[MR. VODNOY:] who view the defendant to ascertain with stance, your Honor, at after the recess she was. your Honor stated that the matter 1:30 THE have time dur- COURT: You will morning. go I would this would over to ing do that.” the Government’s case to what I have done on the like to outline [R.T. 107.] case. summarily rejected defense The court often You do not have to do THE COURT: without, requests before, counsel’s ing allow- that, counsel. present arguments. One such counsel to why explain I MR. I want to VODNOY: attorney Vodnoy instance occurred when tempted at- only pre- prepared am I am not for trial. challenge veracity of suppress. pared the motion to for search warrant affidavit. Ño, Vodnoy. The THE Mr. COURT: paren- “[MR. I will state VODNOY:] going go today. trial is thetically that I have read the warrant. MR. VODNOY: I would like make a good I The warrant submit, is will face[.] on record, your Honor. stipulate I and will to that. Vodnoy. No, THE Mr. COURT: THE Then that takes care of COURT: allowing MR. You. are not me VODNOY: that. to make a record? MR. VODNOY: I don’t think that takes THE No. The answer is no. it, your care of Honor. very simple This is a case. go THE won’t behind the COURT: You very simple MR. VODNOY: It warrant. case? May I VODNOY: make a record simple case, It is a coun- that at least? sel. (Em- [R.T. 82.] COURT: No." Honor, MR. VODNOY: Your the reason ' phasis supplied.) you yesterday you me silenced said though permitted very simple case, Even the court coun- this was a I have cases, sel to cite minating tried from other authorities before ter- hundreds of was because I be- you argument, apparent However, counsel’s lieved it the time. after examining from the record that had I believe case not pre-determined very simple very complicated the merits of the warrant is- case. is a explain you sue. case. I will one moment exactly why. Although above, none of the instances cited sup- alone, great signifi have worked on the motion to considered cance, would press you grounds and I will tell what the we are convinced that the cumulative suppress for the attitude, rulings, motion to are. You will effect of the court’s complexity sup- deprive see the of the motion to conduct was to the defendants of a press you why will see I have not had fair trial. When the court’s conduct re spect time to work on the trial of the case. to the defendants is considered with proceed imposed THE COURT: Let’s with the the restrictions the court on cross- suppress, examination, persist motion to counsel.” 80- [R.T. “such misadventures so (Emphasis supplied.) ently pervade 81.] are [and] of such hearing magnitude After on defendants’ motion to that a courtroom climate unfair suppress Vodnoy conducted, re- was Mr. defendant [s] is discernible from the States, newed his motion: cold record.” Smith v. United Honor, (9th Cir.), denied, “MR. Your before F.2d VODNOY: cert. you bring would like to state U.S. 83 S.Ct. 9 L.Ed.2d 124 prepared for the record I am for will a committed an abuse discretion OF RIGHT TO CROSS- DENIAL supra. required. Harris, reversal be EXAMINATION firmly inquiry question into principle more no No of law is There is permissible avenues that which in this circuit than motive and bias are settled recognizes instant scope In the and extent of cross-examination. generally case, permitted lies within defense counsel cross-examination fi- trial court. informant on the discretion cross-examine sound for Coulter, he received 474 F.2d 1004 remuneration nancial United testifying for (CA9 1973), informant as an denied (1973); for Government,1 of times L.Ed.2d the number Haili, capacity 443 F.2d he had testified any (CA9 1971); before,2 he had cases Viramontes-Medina and whether (CA9 appearance States, pending of his the time United F. government in the instant case.3 1969); Harris v. 1967). Only (CA9 where that cross-exami- is little 2d 365 There subjects firmly directed shows on these record nation two times. for the Government? lation BY MR. VODNOY: not a for the Government? the Government? them to es? [R.T., pp. 162,163, 175]. A. Second. A. A. Once before. ^[*] That Q. ^[*] Q. A. “Q. A. A. The second time. A. Q. You have TnE A. A A. No. Q. Tell me MR. CAMERON: Asked and answered. Q. A. Other than Q. Tell Q. This is THE COURT: Overruled. “Q. “Q. How much did Q. Do informant ^[*] * * ^[*] This is the third time? Well, I don’t remember. Did Oh, Well, profit. WYATT How In connection WITNESS ^[*] my couple this I don’t know. me you say accountant whatever many :¡: the third time or the— case. are right. approximately. receive what of times. couple : I am you paid? expense, : T am times something testified— your expenses I ^[*] you am of yet.” sorry. I haven’t submitted nothing.” making nothing. times, have expense is, make for making nothing.’ consideration your s¡; about that means working are in testifying testified expens- re- 3. time? time? fees? pared prepared fore? ready [R.T., p. Government? ment? [R.T., * * * Q. You do have a case A. A. Q. When A. A. Witness fees. A. The A. That’s “Q. When Q. $20? “Q. How A. Q. A. A. A. Yes. Q. —once A. Q. 1969? Q. Q. Witness fees? Q. When is the— Q. Did A. Yes.” ^{[*] [*] [*] [*]} Did No, Three or How No, I Several, No, ’69. ’70 pp. 175, 176, guess. was the 179]. testify or ’71. I did not. I did not. you get paid standard testify much do $ many ^[*] :¡s -!(cid:127) right. before? was the next three or not.” did four times. have or testified on did first times $20 testify 176a]. ^[*] a case ^{[*] [*] [*]} you get four. for that? the Government time day. pending pending ^{[*] [*] [*] [*]} time paid behalf of the the Govern- you you been ^{[*] [*] [*]} n (cid:127)! witness stood this pre- be- elicitation informant’s motive denied cross-examination.” effective possible testifying. [Emphasis bias for Absent supplied]. 412 F.2d at complete denial of this form of in- quiry, appropriate. reversal is not Har- represents Teller approach. the sound ris, supra, at 367. The mere denial of a disclosure of a wit- of the infor- On cross-examination ness’s address will not constitute a viola- mant, attempted defense to elicit tion of the defendant’s Sixth Amend- place the informant’s of residence. right ment to confrontation absent a objection trial court sustained an to this showing disclosure, that without such majority inquiry, and the holds the defendant was denied effective be error. cross-examination. The record before conveys picture thorough us of a In Alford v. United 282 U.S. cross-examination of the informant—(cid:127) (1931), as reaffirmed v. Il- Smith covering the cross-examination more linois, (1968), 88 S.Ct. 748 seventy-five pages than script. of the tran- Supreme inquiry Court held that an clearly shows that cross-ex- prop- into the residence of a witness is a way amination in no inhibited subject cross-examination, indeed, er the court’s disallowance of defense coun- component a fundamental of cross-exam- attempt sel’s to reveal the informant’s general ination. As with all rules absolutely address. Since there is noth- law, exceptions. however, there are One ing in the extended cross-examination recognizes exception such that where any way which would in indicate that merely harass, would “tend disclosure might address the witness annoy, witness”, or humiliate a produced appel- evidence of value to the goes beyond proper inquiry such scope majority’s desperate lant, attempt to Smith, su- of cross-examination. completely reconcile Teller misses (White, 133-134, pra, at at 751 Here, repeat, mark. the record is de- concurring). Here, questions J. any showing part ap- void might well have been directed to the otherwise, pellant, that the absence annoyance inform- harassment effectively address inter- witness’s er. The of the cross-ex- exhaustiveness with the fered cross-examination. subjects amination on all other branded informer of considera- the witness as an experience. The disclosure of his

ble TRIAL EXAMINATION OF COURT’S might only lead to harassment address WITNESSES annoyance by element. the criminal assigns majority as error the The participation ques- neither is critical to note that It trial active court’s per requires tioning se a re Smith nor In each in- several witnesses. Alford merely stance, participa- the district court versal because that this it concludes objection question aid, to a di an sustained tion an whether intentional was prosecution. otherwise, the elicitation of an infor rected at cannot to Teller, agree. v. address. United mant’s States (CA7 1969), denied cert. 412 F.2d 374 by a trial is axiomatic “[i]n 949, 1603, 91 29 L.Ed.2d 402 U.S. S.Ct. judge court, jury in a federal is not (1971). There, the court held: 118 governor moderator, a mere but is assuring only requires purpose where “Smith reversal the trial for the determining ques- proper name and ad- and of lack a witness’s conduct Quercia States, opportuni- v. dress denies a defendant an tions of law.” United ty 466, 469, 698, effectively 698, a wit- 77 to cross-examine say, happens, Needless to ness. defendant 1321 When a L.Ed. right may participate in the denied exami- is Amendment trial court Sixth goal However, toward the initial with a to confrontation. nation of witnesses United question is the evidence. whether the clarification defendant

17 420, Malcolm, 821, 39, L. F.2d denied U.S. S.Ct. States (CA9 Ed.2d where the record shows that registered objection no defense counsel majority in on it con- The zeros what questions, to the court’s this is an im examples of erro- to numerous siders be finding portant indicia in no trial court participation. One neous trial court error, especially where record fails testimony of instance involves such appellant, any prejudice appel to establish prosecution Harris. arising from such examination. lants cross-examining at- Harris an tempt court, clarify portions in Marshall v. United of a conversa- This (CA9 recording] 1969), States, tape cor tion [contained During objection rectly party. that where an Harris was a observed alleged offered, cross-examination, cannot the trial court inter- error very surely questioned appeal This intervention was unless vened. whereby exceptional proper, com- arises re trial situation prevent appel- the examination after the a miscar menced view necessitated by riage justice. he lant admitted that was confused See (CA9 1973), Brooks, questions. The trial court’s counsel’s 473 F.2d 817 nothing States, more than questioning 425 F.2d 416 evinces Vitello United clarify attempt 1970), (CA9 ob- an to elicit facts cert. denied 400 U.S. testimony. Additionally, scure 27 L.Ed.2d 50. S.Ct. While examination, may participated judge of the trial court’s close specifically have most, more record, vigorously sides asked counsel for both than they effort, the whole, portray whether desired does not design otherwise, by The fact that defense further.4 in witness whether evidence, counsel, impede the close in the terfere with or counsel nullify his presentation par for a mistrial does not moved rejection their Active eases. permit standing ticipation alone, offer judge, of the court’s Beyond that, further examination. is not sufficient to warrant a reversal showing appellants end of the cannot wait until the absent challenge of deprived participa the conduct trial and aof fair trial judge in an area where F.2d tion. v. United Smith right (CA9 1962), of intervention. admitted has an denied 371 my opinion, have failed In L.Ed.2d 124. It page prejudiced there said at 205: how this examination show majority’s examples of other them. “ [D]uring . the stress of . . participation impermissible purported few, any judges trial, if can criminal no more convinc- the trial court are action, altogether inad- inap- avoid words ing. otherwise, seem vertent which in the propriate examined when later Further, the trial at no time after appellate court.” cloisters calm of the wit- examination court’s object my view, nesses, may, did counsel for the defense in Be that as rulings great majority the trial court the manner in which the court’s engaged this proper in its As interventions in examination. and McConney by ina- prompted court stressed examination were 1970), (CA9 failure, bility, States, 421 F.2d 248 of counsel or deliberate 4. men? * “THE COURT: MR. CAMERON: »* ^{[*] [*]} Anything further, Nothing ^{[*] [*]} further. ^[*] gentle- [R.T., MR. WYATT: MR. YODNOY: ^[*] pp. 325, ^[*] 326]. Nothing further. Anything No, % your further? Honor.” ^[*] v questions questions. proper [See ask majority footnote under answers

and al., INN, INC., SALEM et 20]. Appellees, majority’s position is drawing strengthened attention FRANK, Individually Louis J. Po- and as judge and colloquies County, between lice Commissioner of Nassau al., counsel, Appellants. between the et a discussion and a con- a motion for and counsel No. Docket 73-2436. tinuance, occurred outside of which all Appeals, Court majori- jury. The presence of the Second Circuit. anxiety, attempting to ty’s manifest Argued March non-prejudicial occur- these transform error, purported trial court into Decided rences June clearly massive demonstrated twenty-five percent footnotes, over non-prejudicial discourse. are thought judge always had presence of counsel, outside effect, could, their jury, choose majori- any event, weapons. In own how, enlighten me on ty has failed circumstances, jury’s verdict these judge’s conduct. affected could be compared prominent has author One cop” judge to a “traffic —one required “im- make an often who intimidating forceful, mediate, re- sponse” varied situations perhaps

contingencies.5 This analogy, yet court, in Rob- strained inson v. United recognized 1968), (CA9 the often judge: position

precarious trial discre- has wide “[T]he management of the trial. in his

tion beings judges who are human Trial unique temperaments in their

are is, qualities, and it intellectual impossible man the benches

course judges would fit- each of whom mold.”

into a common

CONCLUSION any way Finding no error which ap- rights the substantial affected F.R.Crim.P., 52(a),

pellants, Rule judgments the lower affirm

would

court. Judges, Texas L.Rev. Trial Alschuler, Prosecutors Misconduct Courtroom

Case Details

Case Name: United States v. Birdie Louise Joshua Harris, United States of America v. Billy Charles Harris

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 25, 1974

Citation: 501 F.2d 1

Docket Number: 73-1923, 73-2163

Court Abbreviation: 9th Cir.