United States v. Howard Dale Bernard, United States of America v. Ralph Maurice Comstock, Jr.

that he Washington. testified Wakefield WALLACE, Before DUNIWAY and Cir the was chemicals type unaware of of JAMESON,* Judges, cuit District and can contained that and Ber- Comstock Judge. nard from his house. removed the can DUNIWAY, Judge: Circuit lost location of the apparently can was again Meacham, until it surfaced in Oregon Bernard appeal judg- and Comstock from on March conspiring of of to manu- ments conviction a violation of 21 methamphetamine, facture All other Bernard’s supporting evidence They sepa- U.S.C. 841 and 846. were §§ conspir- in the involvement Comstock’s together. un- rately and tried An indicted of He testimony May. acy comes May, indicted one co-conspirator, Richard (Com- alleged conspirators that the testified major activity was the to criminal witness Bernard, others) to manu- began stock, on part appellants. of the in facture a ranch methamphetamine at We reverse and for a trial. remand new Idaho, to a mo- moving apparatus later Clarkston, Washington. tel While room in

I. The Facts. the receipt for the room was in Comstock’s agri- In December on behalf of an name, manager the motel was to unable firm, cultural research ordered Bernard identify handwriting on Comstock and the Physicians Surgeons from the Supply receipt and the motel was registration Spokane, House in Washington me- some explosion shown to be his. An thylamine, a it is not unlaw- chemical that conspirators alleged motel room caused the order, ful but that is used possess, sell apparatus another location move in methamphetamine, of manufacture additional efforts Clarkston where Drug controlled Enforce- substance. The were methamphetamine made. (DEA) manufacture learned of the ment Administration will regarding the trial The remaining facts Supply House with order and furnished the issues to had been be of can in a radio transmitter stated in our discussion which to be installed. was used as which they The can are relevant.

* Montana, sitting by designation. Jameson, The Honorable William J. Senior Judge United States District for the of District activity criminal ant II. Failure of the District Court was weak. evi- Requested Instructions. Here it is that there was other true Bernard, but it dence activities about the at the time that methylamine, dealt with the entirely taking was pertinent events he substantial around, and the can in which it was carried He said he was drugs. amounts of and another retrieval Bernard of the can “20 “shooting” methamphetamines times lawful. were man. All these activities clock, day” around awake for being preliminary as They became relevant approximately immediately two weeks be- metham- planned to the manufacture fore the events had not he described phetamine only because during suffering eaten period, a dra- jury could the. May, on which the basis of weight matic loss. He testified that ac- lawful otherwise found that these drugs crazy” “made [his] [him] —“not to commit tivities a scheme part were right mind.” further testified that he He hallucinations, testimony is Accomplice unlawful experiencing that his acts. distorted, unreliable. Bru- perception “inevitably and that reality suspect” 123, 1968, memory fuzzy. States, his was ton v. 391 U.S. United 136, 1628, 1620, 20 L.Ed.2d 476. 88 S.Ct. May DEA that Fredericks States, 1952,343 See also On Lee v. United prosecuted he not be told him that would 747, L.Ed. 96 757, U.S. 72 S.Ct. he done if he would testi- anything had 1270; 1909, States, 212 Crawford v. United This fy against co-conspirators. his state- 183, 267-268, 203-204, 260, 53 ment was by May corroborated Fredericks. jury in L.Ed. 465. instruct the Failure to admitted that he received from money requested the manner prejudicial error Fredericks for an becoming informant in requires and this case.2 reversal in the case. requested, refused, to The court when theory that the The Government’s jury respect instruct the to the special with the of defendants’ arguments summation caution and to careful consideration be used jury the to counsel adequately admonished credibility of an judging accomplice in the testimony consider with caution accomplice who testifies.1 The defense made timely response to in unpersuasive. is jury’s A objection the give to court’s refusal to this is, be, judge structions and should the from instruction. response quite argu to its different from argument is ments Davis, from counsel. Counsel’s Cir., In United States v. 9 evidence, is so jury neither law nor we held that refusal to instructed. While it is not give reversible error special testimony on the of instructions so, to fail to testimony this, an -do in a case like accomplice that is im it would when portant prejudicial judge to the be better for the trial case can be error. to the instruct jury There the rested on guilt accomplice testimony defendant’s almost even if such entirely on the the testimony accomplice, of an requested. were not instruction See linking the other the Davis, evidence supra, defend- United States v. 439 F.2d at requested by accomplice evidence, given 1. The instruction corroborated other Jury Devitt and weight jury Blackmar Federal Practice and such as the feels it should have. Instructions, ed., 17.06, however, 3rd jury, read as keep § follows: The should in mind that testimony always such is be received with DEFENDANT’S PROPOSED INSTRUCTION great caution and considered with care.” NO. Blackmar, Devitt 17.06. accomplice “An is one who with unites person crime, another the commission a in against 2. There Bernard was more evidence voluntarily intent. and with common An ac- Comstock, against evi- than the but additional complice incompetent does not become as a primarily procuring the dence with his dealt participation witness because of crime alone, methylamine, which, standing is not un- charged. contrary, testimony On the the testimony May’s vital to lawful. was as Thus by testimony one who asserted his that he is government’s against as it Bernard case accomplice, may an be received evidence against was to the case Comstock. by jury, though and considered even not ” States, Id. at 243. We held that it care.’ did v. United 1106; Bible an ac- given, matter which 314 F.2d instruction complice substantially same instruction prejudice caused a failure to an infor- as that quoted in footnote cautionary accom give a instruction about substantially the same as mant instruction is plice testimony increased when the wit supra. Nor do quoted that in footnote testimony may ness’ other considered .be we find between those here a distinction requested wise unreliable. Defense counsel Proposed In- instructions and Defendant’s additional instructions because cautionary supra. How- struction No. footnote informant,3 drug was a May paid was a that, ever, we suggest judge trial addict, in return for prosecuted and was not justifying light the multitude reasons agreement testify.4 requests These credibility jury instructions regarding States v. In were also refused. better, May’s in a testimony, it would 238, 242-243, Morgan, Cir., 1977, trial, give jury second an instruction multiple instruc we discussed use combining reasons. these accomplice regarding testimony tions drug that he was admitted at trial paid informers or witness testimony of give refused trial that addict. The granted immunity.5 es said “there credibility of a significant requested between cau on is no instruction [difference] testimony drug Although refusal tionary instruction on of an addict.6 such instruction, itself, accomplice an cautionary on would not consti- instruction granted instances, tute we immunity. error, one In reversible the instruction both if suggested again is sug- instructed ‘be given, were gest weighed May’s testimony received with with credibility caution by though Ordinarily person supported not corroborated or an oth- consider that is attempting gather informer if he is or to evidence er evidence. capacity testimony, however, in information an undercover for “Such should ex- be government. by you greater Busby, amined with See United States care than the Cir., 1973, any ordinary testimony of 484 F.2d witness. You States testimony may Morgan, should 242-243. consider whether However, colored, way although May not fit be in such a as does this de- to further the interest, scription, paid by government he was for witness’s own for a witness who gave may procure information that events in he he after the realizes that his own free- that, question by incriminating had occurred. We think at least dom to give another has a motive consideration, purpose instruction, you may falsify. for the of the informant he After such testimony was an informant. the immunized witness you weight Devitt such as feel it deserves.” Blackmar, proposed § 17.04. 4. The instructions from Devitt and Blackmar, 17.04, 17.02 §§ which counsel grant immunity by is substan- the court 5. A requested were these: tially agreement govern- by the same as an DEFENDANT'S PROPOSED INSTRUCTION prosecute, ment not to at least insofar as it NO. affects a witness’ motivations. testimony pro- “The anof informer who against pay, vides evidence defendant 6. DEFENDANT'S PROPOSED INSTRUCTION immunity punishment, per- or for or from NO. 20 vindication, advantage sonal must with or be ex- addict, weighed by jury greater amined and “If an informer is also narcotics testimony ordinary why care than the wit- an there are his testimo- additional reasons ny great jury with should be considered An ness. The must care. determine whether supply by testimony need for a informer’s addict has a constant has affected habit, interest, money drugs support prejudice against to or and for the defend- Blackmar, may of im- ant.” Devitt and an abnormal fear 17.02. also § drugs prisonment supply of in which his DEFENDANT'S PROPOSED INSTRUCTION special might are circum- be cut off. These NO. weighing you may in grant of immu- consider “One stances which who testified under a may nity promise testimony government You of this kind. of course with a from the you weight prosecuted competent that he will not think be is a such as testimony may proper, considering all witness. His evidence and be received in after relevant circum- Blackmar, jury even stances.” Devitt and 17.03. considered keep photo- and failed to telligible, by this and the trial is also affected factor purposes graphs such a used for identification incorporate would wise to gives Freight he Garrett Lines. concept instructions into the in a new trial. disapprove of emphatically to III. Government Failure motivation, Agent views Fredericks’ Preserve Evidence. testimony announces and his conduct. His knowledge a desire to deprive defendants Agent was the DEA Agent Fredericks them that to of any favorable statements investigated the case and interviewed who infor by the may have been made to him an preparation becoming for his May quite This seems to us to be incon mant. against informant and ultimately testifying en obligations with the of a law sistent A Bernard. his co-defendant Comstock and representing forcement officer the United any to obtain pretrial was made motion an officer has a Government. Such States any prior state- exculpatory material facts about an duty gather all No statement of ments of witnesses. offense, his abilities time and so far as Upon cross-examina- was ever received. agent facts that the permit, just not those tion, he never reduced why when asked obtaining a conviction. helpful thinks writing, Agent Freder- May’s statement to ,His authori prosecuting and the superiors icks said: so. Both he and rely ties must on him do Normally interviewing either an infor- the innocent as they have duty protect mant or a period defendant over a guilty. well prosecute as to catch and time, a lot of times the facts will differ being fair to And that duty extends next; from one interview to the under may guilty. those whom he believe to be legal guidelines, any notes which the evidence, Playing games as with makes, agent or interviewer the defense him, his done, Fredericks has demeans notes, trying so in deserves to have those agency, government itself. contradicting facts the in- to avoid any terview infor- any defendant However, we can find no statuto mant, to write down policy it is my the creation of ry compelling basis for sure the defendant or anything until I am Jencks Act re Jencks Act material. exactly say- what he is informant knows produce “written quires prosecution report, ing, and at that time I will make equiv types or their of various -statements” dictaphone or report dictate a on an IBM alent, 3500(b),(e). purpose The 18 U.S.C. § and have that That is to transcribed. existing prior any make Act was to prevent any problems getting into government witness by statements made having court and contradictions from for equally to the defense available instance an interview in March with an Cruz, prosecution. v. 5 See United States in July, interview with an interview in Cir., 1973, 408, Descriptions 478 411. F.2d August, with an interview in September, of that are not interviews with witnesses having and the defense counsel come “substantially verbatim” are not discover “Well, you say did this say back and 18 Act. U.S.C. able under the Jencks That is the differently at this time?” States, v. United 3500(e). Palermo See taking notes. purpose my not 352-353, 1217, 1959, 343, 79 S.Ct. 360 U.S. 1287. We cannot read 1224-1225, the action sought The to dismiss 3 L.Ed.2d defense requirement further Agent efforts of upon requirement the deliberate into this based such discover create under the discovery government Fredericks to thwart that the 3500; Ac instance. Act, able in the first Jencks 18 F.R.Crim.Pro. statements U.S.C.§ Cir., Short, 16; 1963, 9 cord, 373 v. Maryland, see Brady and v. United States 1173; 1170, v. 83, 1194, 1974, United States 215. 493 10 L.Ed.2d F.2d 963, Jackson, 1971, 971-972. Cir., F.2d disposed tape Fredericks also of a of a 9 448 Lieberman, Cir., 1 in- See also United v. conversation between Comstock and an States 896-897; because, 1979, 889, was unin- 608 United States opinion, formant in his it F.2d 860 showing presented Dr. Nail’s' 511-512; 508, dation 1978, Cir., F.2d Head, 586 v. 5 subjects. Cruz, qualifications testify these supra. Nor can we on v. United States the sub- to issue compelling for The basis district court refused

find constitutional would not aid Brady. poena under material the creation of such the because Cir., Sukumolachan, in the case 9 the issues weighing United v. the jury States 685, Reyes v. witness had 1980, also F.2d 687. See if the 610 and that even indicated 916, he States, expense, 417 United 9 at defendant’s called the to ex- Agent Fredericks motion 918. The motivation of grant would the government inquiry. an would in such be irrelevant clude the testimony. Agurs, 427 U.S. United v. States to admit type Whether 342; L.Ed.2d S.Ct. decision left here is a testimony offered at supra, 373 U.S. Brady Maryland, v. we will judge, the discretion the trial 1196. S.Ct. at absence, of his not overturn decision conduct of do not think that the See an abuse of such discretion. the courts in the aids Agent Fredericks Cir., 1975, 523 F.2d Demma, States of fair in the conduct search for truth Barnard, Cir., 986-987; United States trials, such does hope we that conduct Here, May testi government inves policy become the perceive ability to his length fied at as to However, as much as agencies. tigating ability to his to and he events conduct, it is not reversi disapprove of that manner certain events, in a recall all those ble here. error his credibil questioning to result to produce hand, Even if the failure witness, the other ity. expert The on error, tape at trial was photographs impair hypothetical testify would only such was harmless to Comstock. error perception. It was memory ment of None employees Freight Garrett trial not an abuse of discretion identify Lines were Comstock from able to subpoena to refuse to Dr. Nail. destroyed. Nor does photos were which any for us to think present reason Comstock V. Failure to Radio Suppress tape exculpa that the material on the Transmitter Evidence. prejudiced by the tory. was not Comstock suppress any The defense moved evidence. produce pieces failure to these the DEA’s in- all evidence obtained beeper and surveillance stallation of Subpoena Expert. Medical IV. Refusal to motion was de- The beeper. aided indigent an sub- requested defense the installa- claim nied. Defendants 17(b) to poena require under F.R.Crim.Pro. sur- subsequent tion of beeper Gregory testify expert a Dr. as an Nail Amendment veillance their Fourth violated use concerning drug witness effect of it was rights They claim privacy. at the time of the perceptions on judge to therefore error district drug memory as usage well as on his at the testimony of suppress refuse to to prove offered time defense of trial. The of the can regarding Fredericks the location upon a testify, based that Dr. Nail would testimony to whom Wakefield on an ex- rather than hypothetical question beeper. the DEA was led that, May’s light of May, amination the can ability per- beeper attached drug judgment, The history, his of the accuracy per- custody memory can was in ceive while the reality, to the then delivered and DEA. can was ception impaired, unreliable The would be Amendment Fourth Supply the events House. No at the time of inaccurate both when the right of was violated He would also have Comstock described and at trial. v. See United States May to recall device was installed. ability testified that the 517, Cir., 520. Pretzinger, would time of trial the events described by Nor did surveillance similarly adequate An foun- the continued impaired. within the discre- is a matter instructions expec- reasonable device violate Comstock’s and, judgment, my judge v. Du- tion of In United States the trial privacy. tation not cir- should suggestion majority’s brofsky, discretion. of that cumscribe the exercise said: mere us is whether the The issue before carry out we best It to me that appears having of the it presence beeper, determining appellate our function Fourth violating the attached without give a not to give whether it was error to Amendment, resembles sufficiently particular ain particular jury instruction justi- wiretap require the “antecedent practice” case. Advice as to a “better provide. would fication” that a warrant ordinarily outside our to me to be seems We hold that it does not. urges Prudence appellate responsibility. par- here, controversy on and thus we controlling awaiting a Dubrofsky is concrete decide whether ticular issue. need not been admissible un Wakefield would Ceccolini, 1978, 435

der United States 268, 98 55 L.Ed.2d even S.Ct. ille constituted an

if installation beeper

gal search. Special Parole Term.

VI. Bernard’s violating 21 with charged

Bernard him, sentencing and in U.S.C. § FUND, DEFENSE ENVIRONMENTAL pro imposed special parole court term Corpora- INC., nonprofit New York claims 841(b)(1)(B). vided for in Bernard tion, Club, Society Sierra for California special pa impose it was error to Traveling Archaeology, Environmental reversing, we role we are term. Because River and of the Companions, Friends question. The Su need not consider this Action, Preservation Californians question preme has now decided Court Plaintiff/Appellants, v. United favor. Bifulco in Bernard’s States, 1980,-U.S.-, ANDRUS, Secretary of the Cecil D. L.Ed.2d-(1980). States, et Interior judgments are reversed and the case Defendant/Appellees. al., proceedings. is remanded for further No. 80-4322. concurring: WALLACE, Judge, Circuit Appeals, United States Court of majori- with the generally While I concur Ninth Circuit. I who ty, cautionary May, add a note. July 1980. Argued and Submitted Comstock, against Bernard and activities, accomplice paid was an their July Decided drug and a government, informant for the opinion majority addict. Part II of the been “better”

suggests that it would have instruc-

for the district these characteristics mentioning

tion all of might that each suggesting agree I in cer- credibility.

affect might be cases,

tain such an instruction But, that our com-

appropriate. I caution require

ments be construed should not in this or giving of such an instruction

any other case. The formulation

Case Details

Case Name: United States v. Howard Dale Bernard, United States of America v. Ralph Maurice Comstock, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 30, 1980

Citation: 625 F.2d 854

Docket Number: 79-1356, 79-1357

Court Abbreviation: 9th Cir.