UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Date Decided: June 6, 1972; As Amended July 13, 1972.
Bazelon, Chief Judge, Leventhal, Circuit Judge, and Adams,* Circuit Judge, United States Court of Appeals for the Third Circuit. Leventhal, Circuit Judge, concurring. Adams, Circuit Judge, dissenting.
The court unanimously agrees to affirm the conviction of the appellant Kinnard. Chief Judge Bazelon and Circuit Judge Leventhal agree to reverse the conviction of appellant Payne. The rulings of the trial judge below precluded an inquiry into the general unreliability of addict-informers; restricted defense counsel's efforts on cross-examination to develop extrinsic evidence concerning the informant's addiction; and in practical effect, foreclosed a request from defense counsel for a special instruction on the credibility of addict-informers. In view of the fact that the informant's testimony lacked corroboration on a material point, these rulings were prejudicial error. Circuit Judge Adams dissents from the reversal of Payne's conviction.
In this case we are confronted with some of the disturbing consequences of the Government's employment, as informers, of narcotics users, addicts and individuals accused of violating the narcotics laws. We do not dispute the Government's right to use such informers to infiltrate the drug traffic in order to enforce these narcotics laws. But the facts of this case do present us with the question of whether and how the testimony of these informers should be received. I.
Appellants Kinnard and Payne were tried jointly for the crimes of possession, failure to pay tax, and the sale of heroin. *fn1 These charges arose out of a sale of the drug arranged by a government informer, Robert Roscoe Jr., to take place between Kinnard, Payne and a government narcotics agent. The pertinent facts of the case are gleaned from the trial transcript.
In late August or early September of 1969, Roscoe was in custody in the District of Columbia, charged with four counts of possession of narcotics, the sale of narcotics, and burglary. Roscoe was an admitted user of heroin, although whether this use amounted to addiction is a fact which remains in dispute. *fn2 In conversations with a government attorney, Roscoe indicated that he was interested in assisting the Bureau of Narcotics and Dangerous Drugs as an informer, and was told by the Bureau that any assistance he provided would be reported to the United States Attorney's office, presumably to weigh in his favor. In point of fact, Roscoe was quickly released from custody. The charges against him were subsequently reduced to two misdemeanors to which he pleaded guilty and received two years' probation. In the course of his work with the Bureau, Roscoe also received at least $200 and his family was relocated at the Government's expense.
After his release, Roscoe met several times with Agents Cooper and Jackson from the Bureau of Narcotics. Roscoe mentioned the names Mahlon Payne and Darnell Kinnard as being two individuals involved in the drug trade in the District. Roscoe also apparently volunteered to set up a sale with these individuals.
Pursuant to this plan, Roscoe visited the appellant Mahlon Payne. Roscoe testified that he visited Payne on several occasions but arranged no sale. *fn3 On the afternoon of October 13, 1969. Agent Cooper observed Roscoe enter Mahlon Payne's apartment and emerge about forty-five minutes later. Roscoe reported that he could return that evening to make a purchase from Payne for a friend from North Carolina. Agent Jackson was to assume the role of that friend.
Jackson and Roscoe returned to Payne's apartment that evening. They testified that Payne said he could obtain $400 worth of heroin, and that they should accompany him to make a telephone call. The three drove to a gas station where Payne made the call, and then drove to the parking lot of a shopping center and bowling alley. Agent Jackson testified that Payne left the car and spoke with a man who had driven up in a Plymouth automobile, and whom Roscoe identified at the time as Darnell Kinnard.
When Payne returned to the car, the three drove to the parking lot of a carryout restaurant to await delivery of the heroin. Payne noticed several police cars in the area, so they left and crossed the street to the Shrimp Boat Carryout to wait. Agent Jackson testified that he presently saw the man identified as Kinnard drive up to the first restaurant.
Payne motioned Kinnard over to the Shrimp Boat. Roscoe and Payne then got out of the car and spoke with Kinnard. Agent Jackson observed Kinnard pass an envelope to Roscoe. Roscoe walked over to Jackson in the car and handed him the envelope, which was introduced at trial as containing the narcotic heroin. Four hundred dollars passed from Agent Jackson to Payne to Kinnard. Kinnard and Payne drove off in the Plymouth, and Jackson and Roscoe returned to the Bureau of Narcotics. The entire transaction was observed at some distance by Agent Cooper.
The defendants Kinnard and Payne did not take the stand to present a conflicting version of the facts of their encounters with Roscoe and Jackson. Instead, they sought through cross- examination to impeach the credibility of those who testified against them, and emphasized in their closing arguments the crucial role played by Roscoe in inducing their participation in the sale. Thus the thrust of their defense was to raise the question of entrapment. They requested, and were granted the customary instruction on an entrapment defense. *fn4
In this appeal, appellants raise two issues of merit. *fn5 First, during the cross-examination of Agent Jackson, defense counsel attempted to elicit the Agent's opinion on the general reliability and truthfulness of narcotics addicts. The trial judge halted this inquiry and stated that, in reliance on Godfrey v. United States *fn6 he would not give any special instructions on the unreliability of addicts. Defense counsel objected to the foreclosure of his inquiry and appellate counsel now claims that such an instruction should have been given. *fn7
Second, during cross-examination of Roscoe, the defense sought to impeach his credibility by use of extrinsic evidence to prove the frequency of his drug use and the most recent occurrence of such use. The defense first requested that Roscoe bare his arms before the jury, and later suggested that an examination be conducted at Government expense by a dermatologist or other expert to ascertain these facts. Both requests were denied as raising collateral questions and are claimed as error on this appeal.
Judge Leventhal and I hold for appellants on both issues. When, as in this case, the Government relies on the testimony of an informer about whom there is suspicion of past or current narcotics addiction, the court must permit the defendant to develop extrinsic evidence to ascertain the informer's status as an addict. If such status is determined, I would hold that the court must provide an explicit cautionary instruction on the unreliability of paid informers who are also drug addicts. In Judge Leventhal's opinion, the court's duty to issue such an instruction arises if the addict's testimony is without corroboration in some significant aspect of the case, and there is a request from defense counsel.
We both agree that the availability of such an instruction is of vital necessity to preserve the rights of the defendant to cross-examination and to proper jury instructions. Application of this rule to the case before us requires reversal only of the appellant Payne's conviction and a new trial for him. II.
This decision is based on a history of judicial opinions which underscore the necessity of special cautionary instructions when paid informants testify for the Government in criminal cases. The principle which guides us is that enunciated by this court in Fletcher v. United States:
"Granting that the credibility of the testimony of a paid informer is for the jury to decide, it nevertheless follows that where the entire case depends upon his testimony, the jury should be instructed to scrutinize it closely for the purpose of determining whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interest. 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. No other motive than his own advantage impelled him in all that he did." 81 U.S.App.D.C. 306, 307, 158 F.2d 321, 322 (1946).
The court thus recognized that informers have a motive to lie, and that this danger creates the necessity for a special instruction on their unreliability. *fn8
Other Circuits have approved Fletcher *fn9 and we have held that when the instruction is requested, a failure to give it is reversible error unless the informer's testimony is fully corroborated by other eyewitnesses. *fn10 We have also urged trial courts to caution the jury about the unreliability of informant testimony even in the absence of a request. *fn11
These principles also govern cases involving addict-informers. We believe that a government informer's addiction to narcotic drugs and his indictment for narcotics violations so increase the danger that he will color his testimony to place guilt on the defendant for his own benefit that this special danger should be recognized by courts and flagged by a special charge to the jury.
This belief is grounded in the hard realities of narcotics law enforcement. The use of informers is the primary police technique in this field *fn12 since addicts are the primary sources of information about the drug trade. *fn13 Law enforcement officials are open about their use of informants, *fn14 but there is less discussion about why their informers perform.
The addict's habit makes him uniquely subject to constant surveillance and susceptible to arrest -- he is in a perpetual status of violating the law. *fn15 For the addict, arrest is harrassment of a special sort, for he is forced to undergo the beginnings of withdrawal symptoms. *fn16 At this stage, a bribe of heroin or the promise of immediate release and return to the habit seem irresistable. *fn17 The deliberate harassment of addicts for ...