United States v. Leonard O. Bowling

BOYCE F. MARTIN, Jr., Circuit Judge,

concurring.

I agree with the majority that Bowling’s conviction should be affirmed. I write separately merely to augment the majority’s cogent reasoning on the immunity issue and to address briefly a few of Bowling’s alternative contentions.

I fully agree that defendants have no compulsory process right to compel immunization of favorable witnesses, except in extraordinary circumstances, which are not present here. See United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976). We stated in Lenz that “18 U.S.C. § 6003 commits the decision to grant or deny immunity to the sole discretion of the executive branch of government.” 616 F.2d at 962. The record contains no evidence that this statute as applied denied Bowling either compulsory or due process. The government neither granted nor denied immunity selectively. Miller was not immunized for purposes of Bowling's trial. He had received a promise of relief from state charges he faced long before Bowling’s prosecution. He was a paid informant with a long history of government cooperation. See United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 932 , 95 S.Ct. 1136 , 43 L.Ed.2d 405 (1975). Nor does the record contain evidence that Lawson was threatened with prosecution in the event he testified. See United States v. Morrison, supra. Under these circumstances, where no prosecutorial misconduct was shown, the District Court correctly denied Bowling’s motion.

I agree that Bowling’s other contentions are without merit, for the following reasons. First, evidence of Bowling’s flight was harmless error, adequately cured by a cautionary instruction. Over defense counsel’s strenuous objection, the District Court initially permitted government witnesses to testify about Bowling’s flight to Florida and assumption of a false identity. The trial judge recanted, however, at the close of all the evidence, concluding that this evidence was inadmissible under United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), cert. denied, 439 U.S. 847 , 99 S.Ct. 147 , 58 L.Ed.2d 149 (1978). He then suppressed the false identification and instructed the jury to disregard the flight testimony-

Before this court, Bowling argued that the cautionary instruction was inadequate because it did not refer specifically to the damaging testimony. Had the District Court given a flight instruction, we might be required to reverse. However, Bowling did not object to the cautionary instruction before the jury retired. Under Federal Rule of Criminal Procedure 30, Bowling did not preserve this alleged error for review. Even had Bowling made a timely objection, in my view the admission was harmless error beyond a reasonable doubt. The District Court did not permit the government to mention Bowling’s flight in closing argument. See United States v. Jackson, 572 F.2d 636 (5th Cir. 1978). More importantly, as the majority points out, evidence of Bowling’s participation in transporting the silver across state lines was conclusive and overwhelming. In a closer case I might be persuaded that the vague instruction was insufficient to cure any possible prejudice. Given the facts of this case, however, the instruction was adequate.

Second, in my view, the tape of Agent Dorton’s “pay-off” meeting was properly admitted. The trustworthiness of a tape recording is left to the sound discretion of the trial judge. United States v. Enright, 579 F.2d 980 (6th Cir. 1978). See also United States v. Crane, 632 F.2d 663 (6th Cir. 1980). The District Court carefully reviewed those portions of the tape that were *1057 inaudible or irrelevant, and partially granted Bowling’s suppression motion, approving only those portions that specifically related to the silver transaction. I note that Bowling did not object to the jury’s use of a transcript to help them follow the recording. The record does not support Bowling’s claim that the trial judge abused his discretion. United States v. Reed, 647 F.2d 678 (6th Cir. 1981).

Finally, I agree that Bowling was not prejudiced by evidence of “bad acts” or other crimes based on government testimony. Specifically, Miller testified on direct examination that once he went to Bowling’s house to pick up a load of guns. On cross-examination Miller testified that once he used cocaine at Bowling’s house. Defense counsel objected to the gun reference and moved for a mistrial. Instead, the trial judge gave a cautionary instruction. Miller volunteered the cocaine reference in response to cross-examining questions about his drug use. Defense counsel objected to Miller’s answer on the ground that it was non-responsive. Subsequent requests for an instruction and a mistrial were denied.

Although I reject Bowling’s argument that the cumulative effect of these bad act references substantially prejudiced his right to a fair trial, I am troubled by the striking similarity between the conduct in this trial and that in Reed . As the majority indicates, Reed involved the same cast of government characters: Miller and Dorton. In my opinion, the methods Miller employed at Bowling’s trial are equally suspect as those Judge Engel criticized in Reed . Miller was eager to volunteer his opinion that Bowling’s and Lawson’s friends were “burglars”, and that they associated with the infamous, unsavory “Office II” crowd. The trial judge diligently tried to diminish the impact of Miller’s statements. Nevertheless, the jury heard much damaging testimony.

However, as I view the entire record, I am not convinced that other crimes evidence “so adversely affected the substantial rights of the defendant as to require reversal.” Id. at 687 . Again, evidence of Bowling’s complicity was overwhelming. Miller’s testimony, admittedly that of a witness eager to cooperate, was corroborated by that of Dorton, and by tape recordings. The trial judge adequately cautioned the jury to disregard the gun testimony. The cocaine reference was a response to an aggressive line of cross-examination calculated to impeach Miller. As the District Court admonished, defense counsel invited Miller’s response by his line of questioning and thus himself significantly increased the risk of eliciting a damaging response. See United States v. Feroni, 655 F.2d 707 (6th Cir. 1981). For these reasons, I conclude that we must affirm the conviction.