UNITED STATES of America v. Lloyd LEE, Jr., Appellant.
No. 72-1932.
Unitеd States Court of Appeals, District of Columbia Circuit.
Oct. 2, 1974.
Rehearing or Rehearing En Banc Denied Dec. 9, 1974.
506 F.2d 111
Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
Stuart M. Gerson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S.
LEVENTHAL, Circuit Judge:
This is an appeal following appellant‘s conviction for possession of a short-barreled shotgun that was unregistered and without serial number, in violation of
I. STATEMENT OF FACTS
Authorized by a search warrant, Federal agents1 and metropolitan police officers forced entrance, on November 24, 1971, into the then unoccupied apartment B-4 at 4920 A. Street, S.E. During a lengthy search, officers discovered a short-barreled shotgun with a pistol grip underneath and to the rear of a stereo cabinet located in the living room. They also seized $3000 in cash “from the sofa cushions located in the front room.” Throughout the apartment were found various articles commonly used in adulterating and packaging narcotics for sale, including measuring spoons, strainers, aluminum foil, glassine bags, two playing cards and several cans of dextrose. Most important was the discovery of significant quantities of illicit drugs. A large amount of cocaine was removed from the kitchen table; a somewhat smaller batch of cocaine was found underneath a bed; an envelope containing marijuana was found on a nightstand; and in a second bedroom, heroin was found both on the floor and in a coat hanging in the closet.
Appellant was the lessee of the A Street apartment throughout 1971. From some point in late September until October 18, the apartment was occupied, with appellant‘s permission, by Roland Henry and Faith Elaine Wise, both then fugitives from justice.
At trial the Government presented the items seized in the apartment, testimony of the Government‘s expert as to the high concentration and “street value” of the confiscated drugs (contradicted in part by appellant‘s witness), and the testimony of Ms. Wise.
Faith Wise testified that while she and Roland Henry occupied the apartment appellant visited daily to socialize, to carry out his shopping for the couple, and to “snort” drugs with them. At no time did she see a sawed-off shotgun in the apartment.
As to the drugs found in the apartment she testified: On October 16, 1971, she and Mr. Henry acquired a half kilogram of heroin and an eighth of a kilogram of cocaine. When they dеparted on the 18th, they took $120,000 in cash and left behind no money, but five “pieces”2 of heroin and three “pieces” of cocaine for appellant to sell, under an understanding that some of the profits were to be turned over to Henry, and appellant was to keep the rest.3
Appellant admitted he had rented the A Street apartment. But he insisted a flood forced him to move out in July, 1971, and that he subsequently never spent any evenings there. He conceded that he had left all his furniture at the
Appellant also testified as follows: Henry and Ms. Wise stayed at appellant‘s apartment from September until the end of October, 1971. Henry contributed money for rent while he occupied the apartment. Appellant went to the apartment one or two times per week during Henry‘s stay. He admitted using cocaine with Henry and Ms. Wise and seeing a large quantity of drugs. He denied, however, that any narcotics were left with him; denied having seen the sawed-off shotgun; and denied ownership of both the coat in which the heroin was found and the narcotics paraphernalia. He did state that he had returned to the apartment on “an average of twice a week” after Henry and Ms. Wise had left (Tr. 389); but he testified that he thought that Henry and Wise were going to return to the apartment, so he left everything as it was when they went.
II. SUFFICIENCY OF INQUIRY INTO AND INSTRUCTIONS ON SPECIAL INTEREST OF PROSECUTION WITNESS
A. Trial Court Developments
1. Testimony of prosecution witness
It was brought out at appellant‘s trial that Ms. Wise, after leaving appellant‘s apartment, was arrested on November 1, 1971, in Albuquerque, New Mexico, and charged with possession of heroin, cocaine, marijuana, methadone, and demerol. She pleaded guilty to one count of possession of marijuana with intent to distribute, and received a sentence for five years’ imprisonment. She testified that she made no agreements with anyone at the time in order to limit her liability to the offense of possession of marijuana. She further testified, against the advice of her attorney, about her criminal involvement in at least two additional drug-related offenses; but asserted that she had been a party to no “promises, guarantees, or understandings” with the United States Attorney‘s office. She has not been prosecuted for either of these offenses, according to the representations of both counsel at oral argument, which we accept.4
2. Denial of request for special instruction
At the close of testimony, government counsel requested that the judge give an informant‘s instruction with respect to Ms. Wise. This request was denied. It was renewed with greater vigor by defense counsel.5 The court again refused to give the requested instruction. It stated that Ms. Wise was “not an informant, she‘s a plain witness. . . . She is nоt an accomplice.”6
3. Summation of defense counsel
In summation to the jury, defense counsel stressed that prosecution witness Wise was permitted to plead to the relatively minor offense of possession of marijuana and had two cases pending in which she might obtain immunity, and argued this was important to consider as showing bias in her testimony.7
4. Credibility instruction to jury
The trial judge gave a conventional instruction to the jury on credibility, stating that they were the sole judges of the credibility of witnesses, and advising them that they might consider any matter bearing on credibility of a witness and of the testimony given, including whether the witness had any interest in the outcome of the case.8
B. Discussion of Legal Issues
In our view a fair trial was provided as to the issue of a possible special interest of the principal prosecution witness arising out of her involvement in this crime and other crimes. Defense counsel was given latitude to adduce evidence pertinent to these issues, to cross-examine the prosecution witness, and to present argument to the jury on the issue of possible witness interest and bias. The trial court charged the jury that in assessing the credibility of testimony it could take into account the interest of any witness. While the judge had latitude to give special guidance on possible interest, in the circumstances of this case we see no basis for reversal because the trial judge limited himself to the gеneral instruction on credibility and interest.
1. Instructions concerning effect of witness‘s interest on credibility—in general
Before we consider whether and to what extent there is a requirement for special instructions on interest of witnesses, it is important to emphasize the undoubted latitude of counsel to adduce evidence pertinent to interest and to argue to the jury its impact on credibility.
Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), sustained the right of defense counsel to show that the prosecution‘s witness was in Federal custody, by cross-examination which, while respecting the bounds against questioning merely to harass, annoy or humiliate, was conducted in or-
In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Confrontation Clause requires that a defendant be allowed to cross-examine a prosecution witness as to possible bias deriving from the witness‘s probationary status as a juvenile delinquent, despite a state statute directing that such status remain confidential.
The availability of vigorous cross-examination is significant context for validating the use and testimony of accompliсes and secret informers as a necessary means of coping with covert criminality. On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 96 L.Ed. 1270 (1950),10 Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).11 Counsel has rea-
The role of the judge in giving instructions to the jury, sharply distinguished as it is from the adversarial role of counsel, brings different considerations into play. In general, the courts of this country have receded from their historic common law powers of latitude in commenting on the evidence. In furtherance of the predominant role of the jury in finding the facts, and in order to avoid the problems of unfairness associated with singling out particular witnesses or classes of witnesses, and with giving emphasis or undue prominence that unduly favors one party, courts frequently confine themselves to credibility instructions that are general in nature.13 Even in the Federal courts, which have never yielded the right to comment on the evidence, there has been some curtailment of commentary in the wake of rulings disapproving instances of judicial comment.14
This is, then, an area of the law where the baseline of doctrine calls for affirmance of a judge who confines himself to general instructions on credibility as affected by witnesses’ interest, and to providing in that way a context that supports the materiality of efforts of counsel to elicit evidence and present argument. Defendant then has the burden of supporting any claim that special instructions are imperative on the ground that there is justification for this exception in the need to assure a fair trial. This brings us to the dоctrines on special instructions for accomplices and informers.
2. Withholding accomplice instruction
Appellant assigns as error the failure of the trial judge to instruct the jury that Ms. Wise, who by her own admission was to share in the proceeds of appellant‘s sales of narcotics, was his accomplice, and that being an accomplice her testimony should be “received with caution and scrutinized with care.”
Although a conviction may rest solely on the uncorroborated testimony of an accomplice,18 accomplice testimony is inherently less reliable than that of other witnesses. In some jurisdictions there is an absolute prohibition, typically set by statute, against conviction on the uncorroborated testimony of an accomplice. More generally the rulings permit a conviction on this basis provided a cautionary instruction is given. No fixed form has been set, and the wording of the caution varies somewhat in the cases. A conventional and approved form runs: “The testimony of an accomplice should be received with caution [or suspicion] and scrutinized with care.”19 When such an instruction
As to the basis of the doctrine, there is language in some decisions suggesting that its root lies in the witness‘s own impairment by his self-incrimination.21 This kind of rationale harks back to old doctrines that made felons, and the accused, incompetent as witnesses,22 but has little force today. In terms of current realities, the thought should be turned the other way around, for as Judge Brown has effectively noted, an accomplice‘s own “confession of the soul” carries a “ring of truth” and it is, indeed, this circumstance that impels the court to caution the jury of the dangers of accomplice testimony.23 The need for careful scrutiny of an uncorroborated accomplice reflects the danger, underscored by experience, that he may be giving a false account to secure lenient treatment.24
The prospect of immunity or leniency “is usually denied, and may not exist; but its existence is always suspected.”25 And so even though there is no testimony in the particular record that the accomplice is testifying out of a prospect of leniency or immunity, the probability that accomplices as a class are likely to do so warrants the cautionary instruction as a reflection of general judicial experiеnce—when the accomplice is uncorroborated.
Opinion is split as to whether it is “plain error” to fail to give the accomplice instruction even in the absence of a request.26 The present case is marginal, for there was no request by defense counsel for an accomplice instruction. The District Judge did volunteer his thinking that Ms. Wise was not an accomplice, but his comment was in course of considering a request for an informant‘s instruction. Appellant says this comment rendered futile any explicit request for an accomplice instruction; but when a contention is seriously urged by an attorney he is likely, even in the face of preliminary resistance, to put it, with all propriety, that he would like to be heard on the subject. However, since
Where there is material corroboration, the law is that failure to give a cautionary accomplice instruction is not error—whether requested27 or not.28 This puts the matter to the jury with the general instructiоn on credibility of witnesses. Otherwise, a cautionary instruction against the accomplice tilts against believing the accomplice even when he has been largely corroborated. The matter is one for the trial judge‘s informed discretion, although prudence points toward giving an instruction whenever there is doubt as to the sufficiency of the corroboration. The extent of corroborative evidence required to alleviate the need for a cautionary instruction cannot be measured with mathematical precision. Not as much evidence is required as for the harmless error rule, for evidence that by itself may be insufficient to convict may nonetheless enable the trial judge to ensure that fairness is sufficiently achieved with the general instruction on credibility of witnesses.
In sum, the guidance that the law requires for the jury is a practical adjustment. When there is no corroboration, the problem of perjury looms large and warrants a judicial exposition on the frailties of accomplice testimony. When the accomplice‘s testimony is corroborated in material degree, there is no significant special problem of perjury; the persisting problem of perjury in fact in the specific case is like that which besets trials generally. The jury has the benefit of the general instruction on credibility, of its own awareness of the witness’ criminality, and of the latitude given defense counsel to explore the witness’ possible interest, both by eliciting facts and by discourse in argument. If now the judge gives a special warning he may be unduly tilting the jury‘s consideration.
In the case at bar, Ms. Wise‘s testimony was materially corroborated, and hence it does not present the danger that an innocent person might be convicted solely on the prejurious fabrication of an alleged accomplice. Possession of controlled substances with intent to distribute was established not only by Ms. Wise‘s testimony that such material was left with Lee but by the presence in Lee‘s apartment of over $3000 in hidden cash and of drugs and material indicating a substantial wholesaling operation. Federal agents seized drugs of higher concentration than that normally used by addicts, suggestive of possession for sale. They also found glassine bags, measuring spoons, strainers, waxed paper bags, white paper bags, brown envelopes and dextrose all used in the preparation of drugs for sale. This evidence may or may not by itself have been sufficient to convict.29 Indeed, much evidence, like the presence of the implements of drug preparation and adulteration, is consistent with the stories both of appellant and Ms. Wisе. It is enough if there is evidence that confirms material points of an accomplice‘s tale, and confirms the defendant‘s identity and some relationship to the situation.30
The Government‘s corroborative evidence was an adequate basis to put the case to the jury, with the general instruction on witness credibility and without any special accomplice instruction directed against Ms. Wise, to decide, with full attention to the reasonable doubt standard and argument put by defense counsel, whether it accepted appellant‘s version of events or that told by Ms. Wise.
3. Refusal of informant instruction
Appellant argues that the refusal to give a cautionary instruction concerning informant testimony is reversible error. He relies on United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972).
The trial court ruled that Ms. Wise was not an informant. Certainly not every person who is an informer within the meaning of the Government‘s informer privilege—which applies broadly to all citizens who communicate knowledge of crimes to police, yet wish to preserve anonymity32—is within the purpose or scope of the cautionary instruction rule.
The cautionary instruction rule evolved as a special rule for paid informants. In Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321 (1946), Chief Judge Groner stressed the need for a special instruction where the only testimony connecting the defendant with unlawful sale of narcotics was that of a paid informant who was a drug addict. “Here, admittedly, the usefulness of the witness—and for which he received payment from the agent—depended wholly upon his ability to make out a case.” The court drew on the rule established in the jurisdiction that a jury be warned in the case of evidence given by a detective engaged in the “business of spying for hire.”
In Cratty v. United States, 82 U.S. App.D.C. 236, 242, 163 F.2d 844, 850 (1947), the court held Fletcher inapplicable in a case where there was material corroboration of the informer, applying the rule of Borum (supra, note 18) which removed the necessity for a special accomplice instruction where his testimony had corroboration.
The composite rulings had the effect of putting informers in the same status as accomplices in the sense that a cautionary instruction was required where there was no corroboration, or only minor corroboration that still left the government‘s case hanging almost entirely on informant testimony,33 but dispensing with the need for a special instruction where there was material external corroboration of the informant‘s testimony.34
In genеral, the various types of shabby witnesses—the accomplices, informers, false friends, lumped together in On Lee and Hoffa—are governed by similar rules, and the showing that no accomplice instruction is required, because of corroboration, obviates as well the need for an informant instruction.35
In the very narrow class of addict-paid informants described in Kinnard, the existence of material corroboration would not obviate the cautionary instruction where there was a lack of corroboration on a central issue as to which informants as a class have a motive to lie, namely the issues of disposition and entrаpment.
Kinnard plainly focused on what was the special danger arising out of the law enforcement practice of retaining paid informers prior to the commission of the offenses, generally to act as intermediaries between the police and those who will be identified by the informant. Such an informant presents particular dangers in regard to “producing” cases, e. g., including the development of claims that the transactions that evolved reflected predisposition on the part of the defendant as contrasted with entrapment.
The present case is lacking not only this “intermediary” aspect, but also any proof that Ms. Wise was paid for her information and testimony. While accomplices in general can be suspected, in the absence of corroboration, of testifying in the prospect of leniency, there is no similar general rule of experience that every witness for the Government is a paid informant. There was no evidence that Ms. Wise had been given any consideration in order to secure her cooperation and testimony.
Appellant argues that Ms. Wise has been allowed to plead to only one offense. But for this she got a five-year term. To mandate an informant‘s instruction on this record would be tantamount to a rule requiring the trial judgе to warn the jury to receive with suspicion the testimony of any Government witness who has recently pleaded guilty to an offense less than charged, or to only one out of multiple charges. There may be instances where such a suspicion is well-founded, but a judicial instruction of automatic suspicion cannot be justified. Plea bargaining is an everyday occurrence even when neither information nor testimony is sought, and is a practice sanctioned by the Supreme Court.38 In these so-called bargains the lesser plea may be only a fair scraping away of overcharging, or an awareness that additional prosecutions would likely result in concurrent sentences and be an unsound use of the resources of administration of justice. Compare United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970).
It is urged that we remand for further inquiry into the circumstances surrounding Ms. Wise‘s decision to testify. But there was no preclusion of such inquiry at the trial. Defense counsel took full advantage of his wide latitude to conduct a probing cross-examination of Ms. Wise in an effort to uncover before the jury facts that might bear upon her bias, including the facts of her guilty plea to a reduced offense, the length of her sentence, and indeed her implication in crimes, confessed on the stand
4. Conclusion as to fair trial
It may be appropriate to conclude by tying together the threads of our discourse. This case concerns the infirmities of evidence, but the issues turn not on the law of evidence but on the law of trials. The dominant concern is for a fair trial by jury—fair opportunity to elicit evidence, and fair context for the jury‘s consideration. Here counsel had full latitude to elicit evidence and argue in summation.
Turning to instructions, not every matter that may fairly be argued by counsel calls for an instruction. Thus, in a case where an accomplice is fully corroborated, counsel may argue to the jury concerning the dangers of accomplice testimony, although the judge will give no instruction, beyond that which gives guidance in assessing the credibility of any witness.
The instructions that a judge should give the jury on credibility call for a sound exercise of discretion. No universal formula can be stated, except perhaps that the judge should provide a fair and balanced perspective as context for deliberation. The baseline of doctrine sustains a judge who confines his credibility instructions to generalized comment on the significance of a witness‘s interest. Some cases may need more, but there is always the danger of oversteering and undue intrusion. Every time a judge is asked to caution the jury specially concerning a certain type of witness or witness‘s interest, he must consider whether in the context of the trial he is not in effect singling out a witness or class in such a way as to give undue weight to one party or the other.
Certain exceptions have developed as necessary for a fair trial. One requires that the jury be cautioned that the testimony of an accomplice is to be received with suspicion or caution and scrutinized with care. It is sustained by the general suspicion that the accomplice is testifying in hope of leniency, even though not established for the particular case. But the instruction is not required where the accomplice is materially corroborated, lest it oversteer the jury the other way. Another exception requires an instruction for the informant paid by the Government, lacking corroboration. But that imperative is not applicable in this case, where there was material corroboration and no evidence of consideration to the witness, either received, promised or expected. There was lacking the particular vice of an addict informant paid in advance of the offense, typically to serve as intermediary between the police and offender, where a caution is appropriate even though he is corroborated in substantial measure but there is no corroboration on the issue of entrapment or disposition.
We do not say that the trial judge would have erred in enlarging on the general instruction given in this case. Indeed, even in the days when no accomplice instruction was required by the Federal appellate courts,39 their opinions were studded with observations that such instructions were desirable.40 And so today in the instance where an accomplice or informant instruction is not required an appropriate instruction is often desirable.41 Accordingly, we note
Ultimately, the trial judge has the responsibility for shaping the charge. In giving a special cautionary instruction he must do so in the exercise of a sound discretion, and must give consideration to objections made on the ground of steering. One reason for insisting on a “request” as a condition for a requirement of instruction is to assure opportunity for consideration of the fairness оf the instruction to both sides.
Perhaps defense counsel could have obtained a different general instruction from that given by the trial judge, say, with wording that all testimony be given “careful scrutiny.”42 But what he sought was a special focus instruction, casting particular suspicion on the Government witness through delineation of a dangerous class of witnesses. Such special instructions are available, and even helpful, when used with discretion, but they are not mandatory when the shabby-source testimony has had significant corroboration.
With appropriate general instructions on interest of witnesses and full latitude to elicit evidence and argue in summation, we cannot say that the defendant was denied a fair trial.
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The arrival of the dissent leads to a few supplementary remarks.
1. It is suggested that this case calls for a remand on the question of whether Wise was an addict-informer.
The record reveals that the defendant had a full and fair opportunity to pursue this question at trial. The record contradicts any assertion that the trial judge limited Lee‘s cross-examination of police officers on an issue that might possibly have assisted in establishing Wise‘s status as an addict-informer.43
Obviously, the efforts of defense counsel to adduce evidence on the status of Ms. Wise could not possibly have been influenced by the trial judge‘s denial оf an informant instruction after the presentation of all the evidence.44
There is nothing in this record that remotely suggests a denial of a constitutional right to “effective assistance” of counsel. A lawyer is often well aware after a trial is over how he might have handled it more effectively, but that is no basis for scrapping reliance on counsel and the adversary approach.45
3. There is a special risk of unreliability in testimony of addict-informers, in that individuals who agree to secure evidence of crimes prior to their commission, in order to avoid criminal liability or sustain their addiction, have a strong motive to manufacture crimes out of whole cloth. The dangers inherent in such “producing” cases are absent here. There is no indication that Ms. Wise agreed to serve as an intermediary between the police and Lee.
4. Even assuming Ms. Wise was an addict-informer under the standards established in Kinnard, the corroboration of her testimony obviated the requirement of an informer instruction.46 Corroboration need only provide independent evidentiary support for the witness‘s aсcount; it need not resolve conflicts between that account and the defendant‘s version of the events. Otherwise, the more fantastic the defendant‘s story, the harder it would be to secure this type of “corroboration.”
Affirmed.47
BAZELON, Chief Judge (dissenting):
Although I agree with much in the Court‘s opinion, I firmly believe we should remand the record in this case for supplementation on certain factual issues, discussed in more detail below, before making any final decision on whether Lloyd Lee‘s conviction should be affirmed.
The Court as a general matter would leave issues of credibility of “shabby witnesses” such as we confront in this case to the realm of argument by trial counsel. The Court restricts the responsibilities of the trial judge because over-use of cautionary instructions on credibility might “oversteer members of a jury . . . notwithstanding a general disclaimer that theirs is the fact function.” While I am very sensitive to judicial actions which might prejudice the jury,1 I find the Court‘s concern that cautionary instructions might have
Another theme running through the Court‘s opinion is that the trial judge should have some discretion in the decision to issue a cautionary instruction on credibility. This discretion is coordinate to the degree of unreliability of a particular witness. Thus, a mere accomplice may testify without an instruction if there is substantial corroboration of his testimony. At that point, I take it, there is a delicate issue as to whether the witness is in fact unreliable and the trial judge who has the opportunity to view the witness is best qualified to judge the need for a cautionary instruction. On the other hand, the testimony of an addict-informant is so suspect that an appeals court should reverse whenever the addict-informant‘s testimony is not corroborated in a respect material to the source of his unreliability. This distinction is based on the fact that an accomplice is considered unreliable because of a suspicion that he may have a motive to lie and an addict-informant is considered unreliable because of a documented existence of an actual motive to lie.
The addict-informant instruction, the Court asserts, need only be given where the government presents a paid addict-informant who has criminal charges pending against him. I do not believe the class of witnesses subject to the addict-informant cautionary instruction is so limited. The Court correctly identifies the specific motive to lie which necessitates the addict-informant instruction. However, it presents no convincing reasons why that particular motive is limited to the class of witnesses it describes. While I am not prepared to de-
Unlike the Court, I find that the factual issue of whether Wise did make such a bargain cannot be resolved on the basis of this record. For that reason I would remand the record for supplementation. The evidence in the record which leads me to entertain doubt about this issue is as follows. First, we have Wise‘s plea bargain: she pleaded to one count of intent to distribute marijuana and at least three other counts, including accessory after the fact in the Gordon King robbery, intent to distribute heroin and intent to distribute cocaine were apparently dropped. Furthermore,
It is true that Lee‘s attorney did not fully explore the issue of Wise‘s status as an addict-informant, apparently limiting himself to an unsuccessful cross-examination of Wise herself. I am not convinced that this lost opportunity to lay the factual predicate for the instruc-
Second, and most important, I am unwilling to place the entire responsibility for developing this factual predicate on defense counsel. My views on the responsibilities of the trial judge for unreliable evidence necessitate a holding that on the facts of this case the District Court should have received an assurance on the record from the appropriate prosecutorial official that no specific bargain had been made for Wise‘s testimo-
The Court properly closes its opinion with general observations on the fairness of Lee‘s trial. But what is its conclusion? Not really that Lee had a fair trial but that his counsel had a fair opportunity to argue on the addict-informant issue. Neither the Court nor I can conclude as to the fairness of Lee‘s trial until we know whether Wise was in fact an addict-informer.17 As to that issue, we can only speculate18 and ponder on the performance of the District Court and Lee‘s attorney. I would forego such an exercise and opt instead for a hearing on whether Wise was in fact an addict-informant. The dangers of this speculation are compounded by the fallibility of even the best of the trial bench and bar. Another trial judge or counsel might well have recognized the importance of developing the facts as to Wise‘s status as an addict-informant. So the Court adds up the elements of chance and speculation, producing a combination which always totals up to affirmance. When we contrast the uncertainty of this exercise with the small effort needed to eliminate it—a remand for supplementation of the record—I
ORDER
On consideration of appellant‘s petition for rehearing, it is
Ordered by the Court that appellant‘s aforesaid petition is denied.
Statement of BAZELON, Chief Judge, as to why he voted to deny rehearing:
I see no need for reconsideration of the holding in this case. However, I do think that the Court‘s opinion should be modified by striking the paragraph numbered 4 on page 125. This paragraph appears to have been added as an after-thought. However, it purpоrts to con-
Passing the issue of the propriety of the holding, I furthermore think that paragraph 4 represents an incorrect view of the facts in this case. The Court notes on page 122 that “the existence of material corroboration would not obviate the cautionary instructiоn where there was a lack of corroboration on a central issue as to which informants as a class have a motive to lie, namely the issues of disposition and entrapment.” It is not necessary in this case to explore the full ramifications of this general proposition. The facts of Lee‘s case require us to consider only the issue of corroboration of Lee‘s disposition to distribute certain quantities of drugs found in his apartment.1 Both the Court and myself agree that there must be corroboration on the issue of disposi-
Turning to the evidence on disposition, I think it clear enough that the prosecution must prove Lee specifically intended to market the drugs found in his apartment. This burden can not be sustained merely by proving that a marketable quantity of drugs was found in Lee‘s apartment with the paraphernalia incident thereto. There must be some proven connection between Lee and the drugs. The prosecution sought to establish that connection by proving that Lee occupied his apartment with full knowledge of the drugs. However, I think the рrosecution failed in this effort since the overwhelming mass of evidence tends to show that Lee moved out of his apartment when “Roach” Henry and Wise moved in, because of his fear of Henry. To be sure, Lee did return to his apartment for clothes and most likely did know that Wise and Henry had large quantities of drugs in the apartment. However, that is not proof of a specific intent on the part of Lee to distribute the drugs. The only evidence tying Lee to those drugs was Wise‘s testimony that she, Henry and Lee had made a deal in which Lee was to market the drugs in return for a share of the profits.
The Court in footnote 46 states that there is sufficient corroboration of Lee‘s disposition because of three facts: (1) the presence in Lee‘s apartment of a marketable quantity of drugs; (2) the presence of the attendant paraphernalia; and (3) the presence of a large sum of cash. I agree that this is sufficient corroboration that someone intended to market the drugs. But I fail to perceive how it is corroboration of testimony that Lee was that someone. The
ORDER
Appellant‘s suggestion for rehearing en banc having been transmitted to the full Court and no Judge having requested a vote thereon, it is
Ordered by the Court en banc that appellant‘s aforesaid suggestion is denied.
Statement of BAZELON, Chief Judge, as to why he would vote to deny rehearing en banc.
While I adhere to the views expressed in my dissent, I do not believe this case presents a significant question of law such that rehearing en banc would be appropriate. I do not think the result of the majority opinion necessarily binds a future panel in either its sensitivity to the need for supplementation of the record in close cases or its concern with judicial responsibility for the effect of untrustworthy evidence. Rather on the particular facts of Lee‘s case the majority was of the view that there was insufficient doubt about Wise‘s testimony and its effect on Lee‘s conviction to justify further inquiry. Such decisions are not, except in unusual circumstances, appropriate for reconsideration en banc. See International Union, Electrical Workers v. NLRB, 163 U.S.App. D.C. 347, 502 F.2d 349, 361, cert. denied, 417 U.S. 921, 94 S.Ct. 2629, 41 L.Ed.2d 226 (1974) (Statement of Bazelon, C. J., in which Wright and Robinson, JJ., concur).
Notes
An informer is a competent witness, and the use of informers is a recognized means of law enforcement. However, an informer‘s testimony should be examined by you with greater care than the testimony of an ordinary witness. You should scrutinize it closely to determine whether it is colored in such a way as to place guilt upon the defendant in order to further the witness’ own interest. You should receive such testimony with suspicion and act upon it with caution.
The 1972 (2d) edition of these instructions includes an added provision relating to informer-addicts based on United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972), and also contains a definition of an informer:
He is one whose services are availed of by the Government to obtain introductions to persons suspected of violаting the law or to obtain other similar information for pay, or for immunity from punishment, or for personal advantage or vindication. See United States v. McClain, 142 U.S. App.D.C. 213, 440 F.2d 241 (1971); United States v. Gilliam, 157 U.S.App.D.C. 375, 484 F.2d 1093 (1973).
MR. BARITZ: I see, and No. 18, informant‘s testimony.
THE COURT: Who is the informant?
MR. BARITZ: The defense would contend that Miss Wise is an informant, I think under—
MR. DRURY: She is a witness.
THE COURT: She is not an accomplice.
MR. BARITZ: I would think that she would be an informant because of the nature of her testimony.
THE COURT: I won‘t give an informant‘s testimony. Is there anything else? See United States v. Leonard & Sarvis, 161 U.S.App.D.C. 36, 494 F.2d 955, 961 (1974).
She stated that she received no immunity from the Government. But when she was picked up in Albuquerque with a number of drugs, namely, heroin, marijuana, Demerol, methadone and cocaine, what was the result of that case? A plea to possession to marijuana.
Why was she not convicted of a larger amount of drugs, considering that she testified that she was arrested with a larger amount of drugs on her?
And she still has two cases pending, one in this very Court in this jurisdiction. What immunity could she possibly be given in the future? We don‘t know this. We don‘t know this, but that should be carefully considered, the fact that she still has pending cases. This is important to consider because it may show some bias in her testimony, she may profit from it in the future. The significance of placing responsibility for the reliability of evidence on the trial judge is largely reflected in the scope of the plain error rule. See United States v. Leonard & Sarvis, 161 U.S.App.D.C. 36, 494 F.2d 955, 976-977 (1974) (Bazelon, C. J. concurring in part, dissenting in part). I thus disapprove of the holdings in Virgin Islands v. Hendricks, 476 F.2d 776 (3d Cir. 1973) and United States v. Collins, 472 F.2d 1017 (5th Cir. 1972). Compare Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612 (1951).
In this context, I note my continuing puzzlement at a rule of law that states it is the “better practise” to give an instruction and then refuses to reverse a conviction on that basis. Is this a rule of harmless error? I think not, unless there is complete corroboration of the suspect witness. The Court‘s point seems to be that it isn‘t always the “better practise” to the give the instruction; while I might disagree with that, it is an intelligible position.
Accomplices in the commission of a crime are competent witnesses and the Government has the right to use them as witnesses. An accomplice is anyone who knowing and voluntarily cooperates with, aids, assists, advises or encourages another in the commission of a crime, regardless of his degree of participation.
The testimony of an alleged accomplice should be received with caution and scrutinized with care. You should give it such weight as in your judgment it is fairly entitled to receive. You may convict a person accused of crime upon the uncorroborated testimony of an alleged accomplice only if you believe that the testimony of the accomplice proves the guilt of the defendant beyond a reasonable doubt.
To illustrate the variations in language, see e. g., Egan v. United States, 52 App.D.C. 384, 287 F. 958 (1923), reversing a conviction where the court says uncorroborated testimony of an accomplice—(a) at 390, 287 F. at 964, “ought to be received with suspicion, and with the very greatest care and caution,” citing Freed v. United States, 49 U.S.App.D.C. 392, 394, 266 F. 1012, 1014 (1920); (b) at 391, 287 F. at 965, “must be closely scrutinized and received with great care and caution.” See United States v. Leonard & Sarvis, 161 U.S.App.D.C. 36, 494 F.2d 955, 977 (1974) (Bazelon, C. J. concurring in part, dissenting in part).
Furthermore, the trial judge did not limit cross-examination. He merely instructed defense counsel to ask a question proposed by the prosecution and to “then go on from there.” Tr. 77. Lee‘s attorney then proceeded with the suggested question and concluded his cross-examination when he discovered that the witness did not arrive on the scene until after the defendant was taken into custody. Tr. 77. Defense counsel did not raise the issue of how the police discovered Lee‘s whereabouts in his cross-examination of two other agents who participated in the arrest. Tr. 117-18 (Agent Riverа), Tr. 265 (Agent Logan).
Appellant‘s objection to the trial judge‘s remark that Ms. Wise was a “perfectly candid witness” (Tr. 331) takes that statement out of context. The statement came in the context of a discussion as to how to put certain questions concerning inconsistent statements. There was no objection. When the question was correctly put, Ms. Wise did in fact give the answer defense counsel was seeking.