*1 part not reflect bias of the judge prosecution
favor of either the or the de- Finally,
fense. the conclusion of the
arguments judge said that he had made
a statement in the middle of Mr. Hertz- and,
berg’s argument as to the law as re-
quired law: writing. typed
I have had it out in I am you what I have marked as
going to read to
20-A: the trial of pornography nei- prosecution
ther the nor the defense shall required to produce expert
as to whether the material perform-
ance is or adults, is not harmful to or is or
is not pornographic, or element
of the definition of pornographic, includ-
ing contemporary community standards.
sayWe again that the trial judge
did not proof shift the burden of from the
prosecution to the defense. Accordingly,
there was no process denial of due require granting of Piepenburg’s
petition.
We are that none of the
points advanced on behalf petitioner all,
are meritorious. After it is essential
that it be shown in this proceeding that the
trial was conducted in an unconstitutional
manner. We agree do not it was.
The judgment discharging perempto-
ry writ is affirmed. America,
UNITED STATES
Plaintiff-Appellee, POLSINELLI, L.
Defendant-Appellant.
No. 80-1665. Appeals,
United States Court
Tenth Circuit.
Argued March 1981. and Submitted
Rehearing July Denied *2 Missouri, police- Martin, agents City, and a Kansas Atty. Asst. U.S. Kan- John Oliver Buchele, (James P. a surveillance of McFarland U.S. man conducted City, Kan. sas Kan., him on City, with the dates in and Atty., Kansas and Polsinelli on brief), plaintiff-appellee. for the contacts between the they confirmed was, however, corroborating two. There no of the Firm of Lau- M. Jarvis Laurence transpired what between evidence as to Chartered, Jarvis, City, Kansas rence M. during McFarland such con- Polsinelli and Kan., defendant-appellant. for So, on critical issue of whether tacts. McWILLIAMS, BARRETT and Before acquired the cocaine from Polsi- McFarland SEYMOUR, Judges. Circuit situation, is, nelli, it was a one-on-one acquired McFarland testified he the cocaine McWILLIAMS, Judge. April for both the 18 and 30 sales from Quinn was convicted L. Polsinelli Polsinelli, unequivocally with the latter de- 1,1979, April from about conspiring of nying gave that he cocaine to McFarland. 30,1979, with Daniel P. McFarland April called three charac- Counsel Polsinelli cocaine, a II narcotic to distribute Schedule priest, long-time ter a Catholic (1976). of 21 U.S.C. 846 drug, § in violation friend, family 86-year-old and Polsinelli’s distributing of co- He was also convicted grandmother. There was no cross-examina- of 21 April violation caine on grandmother. pri- tion of Polsinelli’s (1976) 841(aXl) and 18 U.S.C. § U.S.C. § ground to the mary for reversal relates acquitted was on Count 2 Polsinelli Government’s of indictment, charged him with priest family and the friend. April on 1979. Pol- distributing cocaine The direct examination of the appeals. sinelli quite family friend was similar. De- charged jointly Polsinelli The indictment he, fense counsel asked the witness or she plea bargaining, After and McFarland. friend, family in the case of the knew of guilty to Count 3 in the pled McFarland community reputation for hones- e., transaction, indictment, April i. truthfulness, ty, veracity, integrity. remaining two counts were dis and the did, Both indicated that and described Sentencing McFarland was de missed. community reputation being good layed Polsinelli’s trial. At the until after very good. trial, the key latter’s McFarland was witness. McFarland testified priest, On cross-examination charged on the two occasions objection, prosecutor, over was allowed to indictment he an ounce of cocaine to an sold ask the witness if his would be Drug undercover Enforcement Administra “if you became aware that Mr. (DEA) Agent that in each instance tion on least Polsinelli had two occasions dis Polsinelli, and, acquired he the cocaine from quantities tributed ounce cocaine.” turn, agent.1 sold it to the undercover pro the context in which the was defense, pounded, prosecutor obviously was re Polsinelli testified in his own ferring April to the distributions on admitted the contacts between himself and 18 and for which Polsinelli April McFarland on both 18 and however, standing was trial. The He ever delivered indicated cocaine McFarland. Other DEA that his would not be altered.2 point testimony, pertinent portion prosecutor’s 1. At one in his McFarland 2. The supplied as to who him indicated some doubt cross-examination was as follows: April 18 sale. McFarland the cocaine for the Tobin, your opinion Father Q. you got stated: “I think I it from cocaine] [the just given change became [Polsinelli, I think it the defendant]. Quinn two aware that Mr. Polsinelli had at least Jerry but it could have been quantities occasions distributed ounce of co- [Polsinelli, the defendant’s It was ei- brother]. caine? ther one of them.” cross-examining long-time family allowable into rele- specific vant instances of conduct.” specif more The prosecutor a bit us, therefore, issue before narrows to a opin asked the friend if her ic. He provision determination as to whether the changed if she “knew that on ion would be allows, the rule which cross-examina- during April of 1979 at least two occasions tion, inquiry “specific into instances of con- quanti distributed one ounce he [Polsinelli] *3 permits cross-examining ques- duct” the witness, response, This ties of cocaine.” here, which, indicated, propounded tions as her would remain the same said were so framed as to assume that Polsinelli “always.”3 was, fact, guilty of the offenses for Although counsel advances several which he was then on trial. reversal, primary ground grounds for adoption Prior to the of the Fed- prosecutor’s concerns Evidence, eral Rules of a character witness long-time priest and the Catholic was, proceeding general, in a criminal argues that it was family friend. Counsel to testimony concerning limited defendant’s prejudicial permit error to community reputation. The witness was assumed, propound questions which as a express personal opinion not allowed to fact, guilty very that Polsinelli character, no matter how close he was then on trial. offenses for which long or his association with the defendant. counsel, According ques the use of such Fed.R.Evid. 405 the rule allow- usurp jury’s function to tions tends witness, ing qualified, a character once is determine for itself whether Polsinelli express personal opinion of defendant’s guilty charged. or not of the crimes though might even such witness questions We are of the view that thus unacquainted with be defendant’s commu- wit propounded to Polsinelli’s character nity This distinction between were in form. nesses community reputation 405(a) provides Fed.R.Evid. in cases as to character has been deemed of some “in which evidence of character or trait of importance by other courts which have con- admissible, proof person character of a is sidered the now before us. Before authorities, may by testimony be made reviewing those we should first by testimony opinion.” precise in the form of an ascertain the nature of counsel’s di- That same rule further states: “On cross- rect examination of the character witnesses. Your MR. JARVIS Your Hon- of him would remain the counsel]: Q. [Defense same,
or, object
question. That
whether that act was committed or
I
to the form of the
not?
There is no
is what we are here about here.
way
Right.
A.
he could have heard that.
THE COURT: This is cross-examination.
pertinent portion
prosecutor’s
3. The
answer,
may
He
if he can.
cross-examination was as follows:
sorry, I didn’t hear
THE WITNESS: I’m
And,
Trinastich,
you
Mrs.
could
tell us
Q.
you, sir.
your opinion
whether or not
about Mr. Polsi-
answer,
say, you
if
THE
I
COURT:
change
you
nelli would
if
knew that on at
you can.
during April
least two occasions
of 1979 he
please,
MR. JARVIS: If Your Honor
for the
quantities of
distributed one ounce
cocaine?
record,
I think the form of the
object
I
MR. JARVIS:
to the form of
charged with
should be that he has been
question.
those, not that he has done it.
THE COURT: Overruled.
THE
This is cross-examination.
COURT:
my feeling
THE WITNESS: You mean if
proper question.
It is a
change against
would
Quinn?
prosecutor]:
I will
MR. MARTIN
re-
[The
(By Martin)
Mr.
Yes.
Q.
it,
like,
phrase
you
Father.
A. No.
Tobin,
(By
Martin)
Mr.
Father
Q.
your opinion
your opinion
And
would remain the
Q.
same?
any
just given
you
Polsi-
different
were aware
Always.
A.
occasions distributed
nelli had on at least two
good family,
He comes from an awful
Q.
quantities
ounce
of cocaine?
doesn’t he?
No,
A.
it would not.
it, really.
A. You better believe
held that the
transcript
leads us to
the Fifth Circuit
cross-exami-
study of the
Our
examination of the
of defendant’s character witnesses
conclude
nation
defense coun
and the
grossly prejudicial
and commented
understanding of
merely
sel
elicited
follows:
reputation, and that
community
....
questions
The nature of the
was a
personal opin
expressed a
neither witness
concept of
cry
far
formulated
regard,
In this
of Polsinelli’s
ion
Rather,
community opinion.
ques-
points
ques
out that
the Government
posed sought speculative responses
tions
by defense counsel in his
propounded
tions
resting upon
assumption
guilt.
an
and the
direct examination
asked if Ledesma’s
Government counsel
“opin
contain the word
family friend did
reputation would be affected if he were
quite
correct.
ion.” This observation
convicted of the
crime. These
context,
crystal
it is
clear to us
hypothetical questions
very
struck at the
related
“opinion”
elicited
*4
presumption
heart of the
of innocence
example,
For
the
community reputation.4
Anglo-Saxon
which is fundamental
examination, was asked
priest, on direct
concepts of fair
trial. See Gomila v.
“opinion
repu
whether he had an
about the
States,
1944,
372;
United
5 Cir.
146 F.2d
Quinn
community
Polsinel
tation
States,
1937,
v.
8
93
Little
United
Cir.
family
the
Similarly,
li.”
401,
F.2d
408. We think that the risk of
examination,
“opinion
was asked her
about
prejudice
rights
to defendant’s basic
reputation in the commu
questions requires
such
reversal. The
Although we are not certain that
nity.”
questions put
place
have have no
in a
significance,
thus drawn is of
the distinction
criminal trial.
Id. at 294.
that,
are certain
in the instant
we
examination,
counsel, on direct
lim
defense
Palmere,
United
v.
578
States
F.2d 105
community
inquiry
ited his
to Polsinelli’s
(5th
1978),
denied,
Cir.
cert.
439 U.S.
reputation, and that neither witness ex
(1979),
the defendant
cannot have
error, we must be able to conclude that such
probative
deciding
value in
issue.
error
beyond
was harmless
a reasonable
any showing
in the absence of
doubt before we
prejudice,
Chapman
can affirm.
v.
the error was harmless in
California,
present
18, 20-24,
F.2d at 34.
824,
case. 554
386
87
U.S.
S.Ct.
Commonwealth,
91,
Ky.
5. Cases in which state courts have considered
v.
261
826-28,
in
rehearing
management
705
and was
the restaurant
17 L.Ed.2d
L.Ed.2d
business.
U.S.
study
unique
somewhat
(1967). Our
To
his own
concerning
bolster
case leads us to con
present
facts in the
his
as well as
establish his
error is not harmless
clude that the
innocence, Polsinelli called the three charac-
doubt.6
beyond a reasonable
indicated,
witnesses, and,
ter
in this set-
was,
sense,
indicated,
one-
this
As
important
ting their role was more
than
situation,
e.,
word of
i.
it was the
on-one
might have otherwise been the case. The
McFarland,
against
the word of
defendant
family friend both testified as to
and
McFarland,
witness.
key
good community
On
one
plea bargaining, pled guilty
after
cross-examination, Government
counsel
sentencing was deferred until
count and his
effect,
asked each of the
testified that
after Polsinelli’s trial. He
community reputa-
their assessment of the
cocaine which
received from Polsinelli the
change because Polsinelli had
tion would
drug agent on
he sold to the undercover
April
delivered cocaine to McFarland on
testified that he
April 18 and 30. Polsinelli
was,
course,
dispute.
to McFarland.
did not deliver cocaine
Indeed,
as a
assumed
fact that
corroborating
There was no
evidence on this
very
Polsinelli was
crimes for
particular point. Other Government wit-
impaneled
which a
had been
to decide
concerning their
testify
did
surveil-
nesses
or innocence. The
witnesses
Polsinelli, and es-
lance of McFarland and
each instance stated that such fact would
tablished that
there
contact between
not alter their
of Polsinelli’s com-
Polsinelli admitted
the two on both dates.
munity reputation.
responses may
Such
contacts,
testified that on each
such
well have led the jury to conclude that the
simply trying
occasion McFarland
testify favorably
character witnesses would
brother, Jerry Polsinelli.
locate Polsinelli’s
Polsinelli,
no matter what. This could
Although the surveillance did establish the
detracted,
so,
arguably
greatly
Polsinelli,
contacts
between McFarland
credibility.
from their
We therefore con-
not, as we read the
the surveillance did
*6
beyond
clude that
the error is not harmless
record,
possibility
rule out the
that McFar-
a reasonable doubt.
land
the cocaine from a source
obtained
other than the defendant.
sum, then,
the Government’s cross-ex-
amination of the defendant’s character wit-
clearly suggested
The
that the tes-
record
improper,
nesses was
and we are unable to
in the
timony of the character witnesses
conclude that such error was harmless be-
position
greater
instant
assumed a
case
doubt.
yond a reasonable
noth-
importance than would be true in the ordi-
ing
herein should be
contained
considered as
nary
put his own character
case. Polsinelli
any indication that the Government’s cross-
by testifying
in issue
that he had never
proper
would have
examination
been
had
any
before even been accused of
criminal
had,
expressed
per-
the character witnesses
their
example,
misbehavior. He
for
done
work,
served honor-
sonal
of Polsinelli’s character. That
voluntary community
Reserve,
Army
ably
particular
matter is not before us.
United States
ascertain,
pains
supported
the decision
before us. He
Our conclusion is
took
out of
Supreme
presence
jury,
target
of the
in Michelson v. United
Court
of the
States,
event,
335 U.S.
69 S.Ct.
799-807 differently, punishment we are not here con- but should not suffer because Stated by the past good with the situation faced of his record and cerned Morgan, in United States v. Second Circuit That is why it so difficult cross-exam- cross-examination supra, namely discussed ine It such character witnesses. is difficult “expert” witness of a so-called character impact testimony to assess the of their testified, who has jurors. Certainly, their car- to his of the defendant’s weight in terms sympa- ries considerable In our case the so-called “non- thy compassion in some expert” character witnesses testified instances result a not verdict out community reputation. as to Polsinelli’s of fear of a court sentence the verdict We have held that now Government’s were otherwise. returned “non-expert” of these I cannot any significant attribute distinc- and, character witnesses was un- tion testimony given by between the circumstances, prejudicial. der the In thus family friend of Polsinelli in the holding, imply we do not intend that such “community reputation” sense of for “hon- proper cross-examination would have been truthfulness, esty, veracity integrity” expressed character witnesses had the “personal” opin- on the one hand and their personal opinion of Polsinelli’s character. ion of his on the other hand. particular Resolution of that matter must truth, Thus, they are one and the same. it fact situation. await a different is a matter of serious concern to me wheth- disposition appeal, In view of our proper er the evidence is in the context of grounds urged the other for reversal need or innocence of a Whether, retrial, not be considered. specific charge defendant to a criminal highly error would reoccur is same which he stands trial. note, however, problematical. We do argument the indictment for failure to should have been dismissed
comply Speedy with the Trial Act is not
valid. remanded,
Judgment reversed and case proceedings to
further be consonant with expressed.
the views herein
BARRETT, Judge, concurring
the result: *7 conclude, I
I concur in the result because panel opinion, prejudi-
as does the that it is prosecution,
cial error for the in the course
of cross-examination of defense character inquire of their opinion assump- based on an
tion of his for which he predicate truly
is then on trial. Such a
places predic- witnesses in an untenable Obviously,
ament. witnesses would not present they personal unless had close
feelings go for the defendant. I would suggest they
further and would not be they truly believed that the de- or, guilty, perhaps
fendant was more fairly, believed that he fact