# United States v. Keith Scott Brown > Court of Appeals for the Sixth Circuit · November 13, 1991 · 946 F.2d 1191 URL: https://www.frixlaw.com/law-library/cases/9482178 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Keith Scott BROWN, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** November 13, 1991 - **Citations:** 946 F.2d 1191 - **Precedential status:** Published - **Opinion:** Dissent by Feikens - **Judges:** Jones, Suhrheinrich, Feikens - **Cited by:** 42 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482178 ## Opinion text FEIKENS, Senior District Judge, (dissenting). I respectfully dissent. I would reverse Brown’s conviction because the district court’s refusal to give an addict-informant instruction deprived Brown of a fair trial and was, therefore, plain error. While there is no per se rule requiring that an addict-informant instruction be given in all cases involving testimony of an addict-informant, United States v. McGhee, 882 F.2d 1095, 1100 (6th Cir.1989), it is clearly plain error not to give one when “the addict-informer’s testimony [is] corroborated on only minor points, and [when] there [is] no direct untainted evidence against the defendant.” Id. See also United States v. Griffin, 382 F.2d 823 (6th Cir.1967). The key is corroboration. Without citing supporting facts, the majority concludes that Stokes, the sole witness against Brown, “could not have manufactured the events leading to Brown’s conviction ‘out of whole cloth’ and Stokes’ testimony could not have been ‘the product of his own prevarication.’ ” I do not agree. Brown’s conviction rested on a controlled purchase of cocaine allegedly made by Stokes. Stokes was the sole witness who testified to that purchase. Although Officer Slaughter was waiting in the car for Stokes during the controlled buy, Officer Slaughter concedes that he did not witness it. Nor was this purchase tape-recorded, as was the controlled purchase which Stokes made of Brown’s co-defendant, Simpson. In these circumstances, it cannot be said that there was direct, independent, corroborating evidence supporting Brown’s conviction. We have only Stokes’ word as to where he obtained the cocaine. The jury in this case had two choices: to believe Stokes and convict or to disbelieve Stokes and acquit. The majority concedes that Stokes was a known and long-time drug addict and dealer. Yet the majority concludes that the jury did not need a special cautionary instruction regarding Stokes’ credibility because at least some of Stokes’ drug use and drug dealing was brought out on cross-examination and the average juror is presumed to give the proper scrutiny to the testimony of drug addicts. I find this argument unpersuasive. First, cross-examination of Stokes regarding his prior drug use and drug dealing was sharply curtailed by the district judge. Second, the majority appears to agree with the district court that an addict-informant instruction would have been tantamount to “commenting on the evidence,” and prejudicial to the government. In re *1200 fusing to give an addict-informant instruction, the trial judge stated: THE COURT: [N]ow, the reason that I didn’t give the charges that you proposed like the addict-informer, I found a proposed charge in the Fifth Circuit and Devitt and Blackmar. It is discretionary with the Court. It is a common occurrence, and I have made it a practice in eight and half years on the bench that I will not go down to the — not even close to the shoreline of commenting on the evidence. I think that the reliability of someone that’s addicted to narcotics is so well-known to the ordinary juror, the ordinary person on the street, that it does not require any comment on the court. (Emphasis supplied). But commenting on the evidence is precisely what was required in this situation. In order to insure that Brown received a fair trial the trial judge was obligated to specifically caution the jury that Stokes’ testimony should be regarded with heightened scrutiny. It is not fair to assume the “average juror” understands the reduced credibility of a drug addict. That may or may not be the case, but Brown deserved the benefit of the doubt. I do not know where the paranoia about commenting on the evidence began. In 75 Calif.L.Rev. 1341, at 1366, this explanation is given: The populist political movement in the 19th century was influential in limiting the power of the trial judge over the jury. In many states, statutes and constitutional provisions restricted judicial comment on the evidence. But, there is no such limitation on federal judges. Chief Justice Hughes, in Quercia v. United States, 289 U.S. 466, 469 , 53 S.Ct. 698, 699 , 77 L.Ed. 1321 (1933), said: In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [ 51 S.Ct. 383, 384 , 75 L.Ed. 857 (1931) ]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson [ 29 U.S. (4 Pet.) 1, 80 [ 7 L.Ed. 761 (1830)]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553 [ 7 S.Ct. 1, 2 , 30 L.Ed. 257 (1886) ]; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [ 8 S.Ct. 77, 78 , 31 L.Ed. 138 (1887)]; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [ 19 S.Ct. 580, 585, 586 , 43 L.Ed. 873 (1899)]; Patton v. United States, 281 U.S. 276, 288 [ 50 S.Ct. 253, 254 , 74 L.Ed. 854 (1930) ]. Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matters of fact; which is a great advantage and light to laymen.” Hale, History of the Common Law, 291, 292. Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. Vicksburg & Meridian R. Co. v. Putnam, supra; St. Louis, I.M. & S. Ry. Co. v. Vickers, 122 U.S. 360, 363 [ 7 S.Ct. 1216 , 30 L.Ed. 1161 (1887)]; Slocum v. New York Life Insurance Co., 228 U.S. 364, 397 [ 33 S.Ct. 523, 536 , 57 L.Ed. 879 (1913)]; Herron v. Southern Pacific Co., supra; Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 498 [ 51 S.Ct. 513, 514 , 75 L.Ed. 1188 (1931)]. Justice Oliver Wendell Holmes of the U.S. Supreme Court had no such paranoia. See Horning v. District of Columbia, 254 U.S. 135, 138 , 41 S.Ct. 53, 54 , 65 L.Ed. 185 *1201 (1920). Nor did Justice Brandéis have such paranoia. In that same case, he said, “It has long been the established practice of the federal courts that, even in criminal cases, the presiding judge may comment freely on the evidence_” Id. See also Graham v. U.S., 231 U.S. 474, 478 , 34 S.Ct. 148, 150 , 58 L.Ed. 319 (1913); U.S. v. Martin, 740 F.2d 1352, 1357 (6th Cir.1984). I would, therefore, reverse Brown’s conviction, and remand the case for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482178. Public record. Not legal advice.