Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-75-102-CR JAMES E. NOLAND, Judge.
Swygert, Cummings, and Pell, Circuit Judges.
This is an appeal from a judgment following a jury conviction of the defendant Darryl K. Wright on both counts of an indictment charging him with knowing and intentional distribution of heroin, a Schedule (I) controlled substance, in violation of 21 U.S.C. § 841 (a)(1). On this appeal, Wright's challenges fall within two broad categories, claimed erroneous evidentiary rulings and errors in instructing the jury.
The two distributions were charged in the indictment as occurring on December 12, 1974, and January 2, 1975. Other than a forensic chemist for the Drug Enforcement Administration who testified that in his opinion the material in the exhibits allegedly sold on those dates was heroin, the Government's case was principally presented by Special Agent Herman D. Hogue of the Drug Enforcement Administration and John Ellis Smith, an informant for the Administration. Both testified to a conversation with Wright about heroin on November 25, 1974, and a sale by Wright on December 12, 1974. Hogue testified to the January 2, 1975, purchase. In addition to three character witnesses, the defense testimony came from Wright and his wife, who testified that neither Hogue nor Smith were in their residence on either date. Wright testified that he had never distributed heroin to anyone, had not seen it, and had not used it. On this appeal, he quite properly does not challenge the sufficiency of the evidence for conviction.
The first two particularized issues raised by the defendant relate to the curtailment of cross-examination of Smith, the informer. Counsel on this appeal, who was not trial counsel, concedes that the trial judge has broad discretion in respect to cross-examination but claims that the limitation here prevented a fair trial in that the defendant was prevented from impeaching Smith as to his motivation, discrediting him as to his credibility, and establishing that little weight should be given to his testimony, which, of course, in essence is saying the same thing with three variations.
During the informer's direct testimony, it was established that he had been convicted of armed robbery in 1972 for which he had received a sentence of ten years imprisonment, and that he had been convicted of robbery in 1975 for which the sentence was ten to twenty-five years imprisonment. On cross-examination the informer testified that he was presently residing at the Indiana State Prison; that he was addicted to drugs during the time to which his testimony related being November and December 1974; that the addiction was to heroin; that he had been so addicted for about six years; and that a person so addicted to heroin craves the drug and would get pretty desperate for it. At this point Smith was asked "[as] a matter of fact, your robbery was involved because you needed money -." Objection to the exploration of the details of the criminal offense was sustained.
Thereafter the following information was elicited from the informer on cross-examination. He stated that his habit cost him from $20 to $40 a day; that he was employed off and on, jobs like shipping-receiving clerk, which did not make him $40 a day; that he had to find other sources of income; that the Anderson Police Department put him in touch with Hogue after he, the informer, had been arrested for 1st degree burglary; that the burglary charge was dismissed in July 1975; that he was asked if he could help clean up the heroin traffic, or drug traffic; that he agreed to do so; that he was paid $150 or $200 a week by the Federal Government, until around December 1974; that the money was used by him to get the narcotics to which he was addicted.
Wright claims that his inability to pursue the question regarding Smith's involvement in robbery being motivated by the need for money precluded in some manner the defense establishing motivation which would affect his credibility. The fact of the convictions within ten years would properly have been admissible. Indeed, the Government apparently realizing this to be true brought out the information on direct testimony. Ordinarily, establishing the fact of conviction for impeachment is the end of the inquiry. The defendant here attempts to justify further pursuit on a motivation theory. In view of the wide latitude given to the defense in its cross-examination of Smith, we cannot conceive that all possible alternative reasons for Smith's testifying for the Government were not exhaustively covered even if the jury ignored the implicit message in the unanswered question. We also note that immediately after the objection was sustained, Smith was asked:
Nevertheless, Mr. Smith, your addiction for drugs caused you to do things you probably wouldn't do if you weren't addicted, isn't that correct?
to which Smith responded, "that's correct."
Failing to see any harm whatsoever to the defendant in this matter, we are unable to say that there was an abuse of discretion in the trial court's sustaining of the objection.
The defense further brought out on cross-examination that Smith earlier in the year had testified in the same court against some individuals by the name of Bell and Vaughn in other cases. The record then reflects the following:
Q. And Mr. Vaughn, you testified that you bought some narcotics from him in this very Courtroom, didn't you?
THE COURT: The Court will sustain an objection to any further testimony in regard to the other case except for the fact that he did testify. We will not go into circumstances of the other cases because it's irrelevant as far as this case is concerned.
Here the defendant argues that he should have been permitted to show that Smith had testified in another narcotics case against two individuals and that they had been acquitted despite his testimony. He further argues that the trial judge by sua sponte limiting any further questioning became an advocate for the Government, and that there could be no suggestion "that the two or three necessary questions to establish the fact that in a similar case the jury did not believe the informer would unnecessarily delay the trial." We, initially, cannot accept the underlying premise of the defendant that the fact that another jury did not believe Smith could be so simply established. Any observer of criminal trials is aware that sometimes convictions follow the flimsiest of evidence and, conversely, acquittals are the sequel to overwhelming evidence of guilt. To pinpoint that the cause of the acquittal in the other case was because of disbelief of Smith, even if he was the only witness, would have called for a collateral review in depth of the other trial, and even then the answer would probably have been conjectural. Even if the answer could have been adduced beyond doubt, the testimony would not have been proper. The issue was whether Smith was credible in the eyes of the present jury, not whether twelve other persons believed or disbelieved him. We need not list the extremes to which the present contention would carry us if logically pursued. A trial judge does not become an advocate in litigation by stopping on his own motion, whether on direct or cross-examination, an improper line of inquiry.
During Agent Hogue's direct testimony concerning his conversation with the defendant at a service station on November 25, 1974, Hogue testified that Wright had told Smith and him that he, Wright, had been in some sort of a fight and had received several bruises and cuts. "He further told [Smith] and myself that if he had had his gun in his car -." At this point the defense objected and moved to strike the testimony. In a bench conference it developed that the Government expected Hogue to testify that Wright had said that if he had had a gun the results would have been different. The court sustained the objection, pointing out that insofar as the character of the witness was concerned, the determinative factor was reputation for truth and veracity rather than specific incidents. The prosecution indicated that if the defendant should later attempt to show excellent character, the Government would return to the challenged evidence. The court instructed the jury to disregard the testimony.
Subsequently during Wright's direct examination, he related details about the fight in which he had received bruises. On cross-examination in response to a general question about the November conversation, Wright added "[there] was an incident or a point made by Agent Hogue about if I had my gun -." The gun testimony had, of course, been stricken and the jury instructed to disregard it. Thereupon the prosecution pursued the matter without objection. Wright denied that he had told Hogue and Smith that had he had his gun the results would have been different. Elsewhere in his testimony, Wright had testified as to his own work and educational background and as to his church and social work. He called as character witnesses his minister, a history professor, and the executive director of a Boys Club. Their testimony without detailed recitation did go beyond, although ordinarily without objection, the strict confines of reputation in the community for truth and veracity. The professor observed that he was particularly interested in Wright "because he was a young man that had great potential and I particularly cultivate five or six which I believe are outstanding young men and women each year, so I cultivated Mr. Wright."
The prosecution recalled Agent Hogue for rebuttal and over objection he testified as to the November conversation relating to the gun matter, i.e., that Wright had said that if he had had a gun in his car that it might have been a different story. The testimony then continued with regard to the conversation later the same November day at the Wright residence, part of which related to the effort to get some heroin that evening, but which concluded, "He further stated to myself and [Smith] that anyone that messed with him would get hurt and that he could pay someone to take care of anyone that messed with him." Trial counsel indicated he might call Wright for surrebuttal; however, he did not do so.
The defendant, relying on United States v. Park, 525 F.2d 1279 (5th Cir. 1976), and cases cited therein, argues that even if the prosecution is entitled to rebut character evidence that reputation is bad, proof of specific acts of misconduct is not admissible. This would appear to have been the rule of general application. Rule 608(b) of the Federal Rules of Evidence has changed the situation somewhat. That rule which was in effect at the time of the trial reads in pertinent part as follows:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . . .
In the present case, the defendant places reliance upon Rule 608(b) because the testimony he challenges was not on cross-examination of himself but, he contends, was specific instances of misconduct testified to by another, i.e., Agent Hogue. This approach, however, ignores the fact that the subject of the conversation was explored on his own direct testimony and the matter of the gun was brought in the case again by his own volunteered doing on cross-examination. Having denied that any such conversation took place, he cannot now complain that testimony reflecting upon his truthfulness was admitted on rebuttal.
We have more difficulty, however, with the matter of the testimony by Hogue concerning the statement at the residence that anyone who messed with him would get hurt. This was on the same day as the service station conversation but at a later time and at a different place. There had been no previous reference to it. It came late in the trial and the court had indicated that it would admit the conversation which occurred at the residence although there is no indication that the court was aware of the specifics or even of the general nature of this particular item of the conversation. The defendant did not move to strike this testimony on the basis that it was a new ...