United States v. Jerry Joseph ( 1976 )

TUTTLE, Circuit Judge

(dissenting):

With deference, I dissent. Here the Court lets stand a conviction of a young man, not previously known either as a user, addict or dealer, for making two heroin sales, at a trial in which the government attorney made statements to the jury which, in the words of the Court’s opinion, “placed [him] in a group of individuals who were ‘drug addicts’ and who might have occasion to commit other crimes, perhaps even murder.” The Court rationalizes its action by saying that while it was error for counsel to make the statement, “an otherwise valid conviction should not be overturned where there is no reasonable possibility that the error might have contributed to the conviction,” citing Faby v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173. See, also, Kotteakos v. United States, 326 U.S. 711, 66 S.Ct. 169, 90 L.Ed. 420 (1945). If we appraise the effect of the highly inflammatory closing argument by this standard I cannot agree that there was no “reasonable possibility that the [improper remarks] might have contributed to the conviction,” Faby v. Connecticut, supra.

Since the Court’s opinion does not quote the comments which we all agree constituted error, I think I should quote them here. The one government agent who testified to the alleged transactions with Joseph said she was introduced to Joseph by two homosexual transvestite addict-informers who were present at the alleged sale. The government did not call the informers as witnesses, but the defense did so, apparently for the purpose of showing that they were persons guilty of a wide catalogue of violations of moral and criminal laws, and that they were paid informers for the government and that if a sale was made it was made by them to the agent. In his final argument to the jury, government counsel sought to answer defendant’s argument criticizing the government for not calling the two informers as witnesses to the alleged transaction. The following colloquy occurred:

“Mr. Simno [prosecutor]: . . . Consider also, ladies and gentlemen, the fact that these individuals had made over 120 cases. Why are they not sitting here? For the same reason that they have been under guard on the fourth floor and have been delayed in coming down here when they were called.

Mr. Simmons [defense counsel]: Your Honor, I’m going to object at this time. This is beyond the evidence.

The Court: That’s correct. It’s outside the evidence. Disregard that fact.

Mr. Simno: You decide it, ladies and gentlemen, you decide. These individuals have had hassles before with fellow drug addicts. They have robbed them, they have taken their money, they have also sold to them on numerous occasions, and they will also kill them in a minute if they can get their hands on them.

Mr. Simmons: Your Honor, at this time, I would like to approach the bench. (Whereupon, the following proceedings were had at the bench, outside of the presence of the jury.)

Mr. Simmons: At this time, your Honor, I would like to make a motion for a mistrial in this case, because of the remarks of the prosecution being so inflamatory [sic] as to prejudice the jury against my client, that the jury would not be able to give him a fair trial, make a fair and impartial judgment; or in the alternative, we ask, if the Court does not grant a mistrial, that it give a very strong admonition to the jury to disregard the remarks.

The Court: I will given them a very strong admonition to disregard the remarks. All right, Motion denied. (Whereupon, the following proceedings were had in the presence of the jury.) The Court: Ladies and gentlemen of the jury, you will disregard the remarks of the United States Attorney as concerns the fact that somebody might attempt to kill these witnesses and the fact that they were under guard and so forth. That hasn’t been brought out in this trial, and I agree, that it should not be brought in in this case, so, please disregard those remarks and put it out of your mind. That has no part of this case, what might happen to them.”

Thus, government counsel, even after being put on notice by the Court, proceeded to give evidence against the accused: first, that he was a drug addict, and second, that he and others had robbed the informers and sold to them on numerous occasions, and third, that the defendant and “fellow addicts” would kill the informers in a minute, etc. It is difficult for me to conjure up improper argument of counsel more highly inflammatory or more likely to be prejudicial.

Here, once again, we give the prosecuting officer a very light tap on the wrist by saying that “our affirmance should in no way be construed as condoning the actions of the government prosecutor. The statements were error. They should not have been made and went beyond the proper role that a prosecutor should adhere to in closing arguments.” We have said this or something like it so many times that it almost becomes boiler plate, and the prosecutors persist in ignoring what we say. For recent cases in which we characterized the prosecutor’s statements as improper but affirmed, see United States v. Rhoden, 453 F.2d 598 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972) and United States v. Scaglione, 446 F.2d 182 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971).

For cases in which this Court felt that the bounds of fairness had been passed and reversed, see Handford v. United States, 249 F.2d 295 (5th Cir. 1957) and United States v. Brown, 451 F.2d 1231 (5th Cir. 1971).¹ In the Brown case we stated the facts of life that still trouble me if we permit the error in this record to go unredressed. We said:

“This court has passed too many times on this kind of comment by prosecutors to permit it to continue by allowing it to be brushed under the rug under the harmless error doctrine.”

Id. at 1236. See also Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967) and McMillian v. United States, 363 F.2d 165 (5th Cir. 1966).

In Dunn v. United States, 307 F.2d 883 (5th Cir. 1962), even without a motion for mistrial having been made, we found it necessary to reverse because of improper closing argument.² We there announced a principle of law that, it seems to me, is much more wholesome and fair than that announced today:

“In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘cannot unring a bell;’ ‘after the thrust of the saber it is difficult to say forget the wound;’ and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.’ ” (Emphasis added).

Id. at 886.

BRADY MATERIAL NOT TURNED OVER TO THE GOVERNMENT.

I, of course, agree with the Court that the failure of the trial court to require the government to furnish the details of employment and compensation paid to the two informers who, according to the government’s case, introduced Joseph to the agent, was error in light of the Brady rule. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But I strongly disagree with the Court’s nullifying the effect of the rule by using what to me now seems to be a dangerously growing tendency to avoid a reversal by applying the label “harmless error.”

Here, the defendant, who, I repeat, had no prior record as an addict or dealer, sought to show that the single eyewitness who testified for the government as to the actual sale, had worked six months with these same two informers; that they had worked up 120 cases; that occasionally the agent acquired the buy from one of the informers, but usually “tried to” buy it from the suspect. Doubtless it was Joseph’s hope that the jury would believe his story that he had not had any contact with the agent and that he had tried to avoid the two informer-addicts. He wished to show by obtaining pre-trial information from the government how much the informers were paid and what the terms of their employment were. According to the government’s witnesses they were present at the alleged transactions. It is extremely difficult for me to see how the failure of the government to supply this information before the trial to permit defense counsel to prepare for cross-examining the agent and to pin down discrepancies in the testimony of the informers when they were called was “harmless beyond a reasonable doubt.” Such is the standard for determining whether constitutional error is harmless, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973). The government witness, upon cross-examination, gave ambiguous testimony as to the amounts paid — whether each informer was paid $30 or $60 or they were both paid a total of $30 to $60 for each case was unanswered. This makes a difference of from $3600 to $7200 for each or for both, together with a further amount that one of the informers testified he got: “ . . . and sometimes when we didn’t go with them, and we needed money for rent or food, the government would give us money.” In sum, the evidence sought by the Brady motion was not furnished by other witnesses. Thus the cited cases, United States v. Prout, supra, and United States v. Felts, supra, are not applicable.

I would give more weight than does the Court to the Brady principle, which, after all, rises to constitutional dimensions as expanding a requirement of due process. I do not think we should so readily denigrate a principle of which this Court said in Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799:

“The Brady decision culminates a series of cases in which the Court proscribed the use by the prosecution of perjured testimony and the active suppression of exculpating or favorable evidence. It is now clear that Brady imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is materially favorable to the accused either as direct or impeaching evidence.” (Emphasis added.)

Id. at 800.

I would hold that the two errors recognized by this Court to have occurred require a reversal and remand for a new trial.

1 . There the prosecutor in his argument stated:

“However, I would like to add that the attitude of Mr. Wilder on this assignment the chances that he took in the sense of being an undercover agent. .

And I personally feel he did a real good job. I feel that he was doing his duty to his country, and to the organization of which he was a member — and he was doing it to the best of his ability, and it was successful, in my opinion.”

2 . The improper remarks were:

“In his opening the prosecutor had said: ‘This case is replete with fraud and is one of the most flagrant cases we have ever tried in the Southern District of Georgia.’

Id. at 885. And in his closing he stated:

‘[H]ow was Mr. DeLaigle going to get the job? Mr. Dunn was the Mayor. He got them from Mr. Dunn. Whether those accounts (amounts?) (sic) were reimbursement for expenses or kickbacks — any of you gentlemen that know anything about politics, when you throw out that much money, why, somebody is going to have to take (pay?) (sic) somebody else.’ ”