Petition — Johnson v. United States

— —

7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

1

STANLEY JULES JOHNSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ARTHUR L. HARRIS, SR.

Attorney for Petitioner

Canal-LaSalle Building

1440 Canal Street, Suite 1714

New Orleans, Louisiana 70112

561-5831

SCOFIELDS’ QUALITY PRINTERS, P. o. BOX 63096, O. LA. 70153 - 604/822-1611

TABLE OF CONTENTS

Page

, ⁰ bavesus caste 2

J TET PETE TTP eP eer Tee 2

STATEMENT OF THE CAS gEZgz q 2

A. Summary Of The Indictment 2

STATEMENT OF THE CAS EEZEZgEZzgzz 2

F res- e 3

The Court Erred In Denying The

Petitioner’s Effective Cross Examination

After Prejudicial Remarks By The Court In

The Presence Of The Jur. 3

The Court Erred In Denying The

Petitioner’s Motion To Suppress The

Evidence Of The Search Warrants (Govern-

ment Exhibits 45 and 4õ:uö-iw-: 2. ce eeees 7

The Court Erred In Refusing To Charge The

Jury On The Petitioner’s Theory Of The

Finnen c hdc cccctcicccesen 8

ES © Gea USbieescveneereveveveccecve dies 14

CERTIFICATE OF SERVICEgzgz i 14

r Sghdbcbhndecibssddenasrcaccesccecs la

TABLE OF AUTHORITIES

CASES

UNITED STATES SUPREME COURT CASES:

Aguilar vs. Texas, 378 U.S. 108 (1964) ............. 8

Alford vs. United States, 282 U.S. 687 (1931) ....... 6

Brookart vs. Janis, 384 U.S. 1 (1966) ............... 6

Harris vs. United States, 403 U.S. 573 (1971) ....... 8

ii

TABLE OF AUTHORITIES (Continued)

Page

Pointer vs. State of Texas, 380 U.S. 400(1965)....... 6

Smith vs. State of Illinois, 390 U.S. 129(1968)....... 7

Spinelli vs. United States, 393 U.S. 410 (1969) ....7,8

FEDERAL CASES:

Apel vs. United States, 247 F. 2d 277 (8th Cir.

BOBS) . indice nd. al een 10

Bryan vs. United States, 373 F. 2d 403 (5th Cir.

W. enen . 12

Bursten vs. United States, 395 F. 2d 976 (Sth

GG.. oenone eatin 5

Ezzard vs. United States, 7 F. 2d 808 (8th Cir.

. 6 „ „„ „%%% tues 11

Hyde vs. United States, 15 F. 2d 816 (4th Cir.

BORG) . dadicic ccsccccsadds eee e 10

Koontz vs. United States, 277 F. 2d 53 (5th Cir.

ꝛV . eee 12

Levine vs. United States, 261 F. 2d 747 (Sth

11 ꝙT— Fx ⁊ðͤ . 8 12

Merrill vs. United States, 338 F. 2d 763 (Sth

Cir. 90 Sissi issn da. is BUA eee 12

Perez vs. United States, 297 F. 2d 12 (5th Cir.

arenen 10.12

Richardson vs. United States, 403 F. 2d 574

O. dd. .. .. d. „ eee ene 9

Smith vs. United States, 230 F. 2d 935 (6th Cir.

„ene 11.12

iii

TABLE OF AUTHORITIES (Continued)

Page

Strauss vs. United States, 376 F. 2d 416 (5th

ee thee Eh ie eka vine e esd bbeeusepvecs 11

Tatum vs. United States, 190 F. 2d 612 (D.C. ö

r . (tb 10.12.13

Turner vs. United States, State No. 227 (1974) 9

United States vs. Blane, 375 F. 2d 249 (6th Cir.

1 r 9

United States vs. Cullen, 454 F. 2d 386 (7th Cir.

D ⅛ĩÄ%,r' . ˙˙—ꝙôĩ , i 4

United States vs. Grimes, 413 F. 2d 1376 (7th

EE SEL eee 9,13

United States vs. Indiana, Trailer Corp., 226

IJ I ED ccc acccccccccccccccce 10,12

United States vs. Leach, 427 F. 2d 1107 (ist

r „eee 10

United States vs. Musgrave, 444 F. 2d 755 (5th

. „„ „„ 9

United States vs. Phillips, 217 F. 2d 435 (7th

eee 2 . 2 13

United States vs. Vole, 435 F. 2d 774 (7th Cir.

rbb e eee y

United States vs. Williams, 434 F. 2d 250 (5th

r ‚ͤvTt— . 5,6

INTHE |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

STANLEY JULES JOHNSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

TO THE HONORABLE CHIEF JUSTICE WARREN

BURGER, AND TO THE HONORABLE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Your petitioner, Stanley Jules Johnson, hereafter

sometimes referred to as “Defendant” or “Appellant”

. respectfully petitions this Honorable Court for a Writ

of Certiorari directed to the United States Court of

Appeals for the Fifth Circuit to review and reverse a

judgment of conviction and a sentence for a violation

of 18 U.S.C. 2113 (a), (e) and 18 U.S.C. 2.

2

OPINION BELOW

The opinion of the United States Court of Appeais

for the Fifth Circuit, dated April 11, 1977, is published

and appears herein at Appendix A. The District Court

wrote no opinion.

JURISDICTION

Jurisdiction is conferred on this Court by Section

1254 (1) of Title 28, U.S.C.

The judgment of the Court of Appeals for the Fifth

Circuit was rendered on April 11, 1977. It is noted the

thirty (30) days time period under Rule 22 has expired,

however, Heflin versus United States, 358 U.S. 415 is

cited for authorities for filing after May 11, 1977.

STATEMENT OF THE CASE

A. Summary Of The Indictment.

The Grand Jury in a two count indictment, charged

the defendant and Leonard Washington with armed

bank robbery and avoiding apprehension forced Irvin

M. Brown to accompany them and killed him.

The Appellant, Stanley Jules Johnson, hereinafter

referred to as Petitioner, was indicted in a two count

indictment on November 20, 1975 in violation of Title

18, Section 2113 (a) (d) (3) and Section 2 of the United

States Code.

3

The Petitioner was arraigned and pled not guilty,

and after pre-trial motions, this cause was brought to

trial on February 2, 1976.

Prior to opening statement, Petitioner's counsel

orally moved to adopt all motions and objections made

by Co-Defendant’s Counsel (Tr. 35).

On Friday morning, February 6, 1976, after instruc-

tions by the Court, the jury retired to deliberate, the

jury returned on Friday evening of February 6, 1976,

with a verdict of guilty as charged on both counts of

the indictment against the Petitioner.

Post trial motions were timely filed by defense and

denied by Court.

A pre-sentence investigation was ordered by the

Court, and on March 3, 1976, the Petitioner was

sentenced to 99 years imprisonment.

On April 11, 1977 the United States Court of Appeals

for the Fifth Circuit, No. 76-1750 affirmed the convic-

tion. Chief Judge Brown, Judges Ainsworth and

Jameson.

ISSUES

The Court erred in denying the Petitioner's effective

cross-examination after prejudicial remarks by the

Court in the presence of the jury.

The Court erred in denying the Petitioner’s Motion

to Suppress the Evidence of the Search Warrants

(Government Exhibits 45 and 46).

4

The Court erred in refusing to charge the jury on the

Petitioner's theory of the case.

The Court Erred In Denying The Petitioner’s

Effective Cross Examination After Pre-

judicial Remarks By The Court In The

Presence Of The Jury.

During the trial the Government Offered Special

Agent Max Marr as an expert witness in lifting latent

fingerprints and dusting for latent fingerprints, the

defense objected to his qualifications as follows:

“MR. HARRIS:

I realize that, but my questions were

directed to lifting as well as analyzing, and the

witness had indicated that he is totally un-

familiar with these various texts that are

available and these articles that are available,

and for that reason we would argue against the

qualifications as an expert.

THE COURT:

He's totally acceptable to the Court as an ex-

pert. I say that he has had more experience

than any F.B.I. agent that’s worth his salt.

He’s had more experience than all of those

nutty professors that you have talked about.

He’s had more experience than any police

officer who’s worth his salt.

It’s done by the school of hard knocks, is

where you learn to dust something and lift

fingerprints, and not by sume professor sit-

ting in some university who doesn’t know his

neck from third base.“

By these remarks, the Petitioner, was denied effec-

tive cross examination of the agent’s qualification by

the Court.

The Government called twenty-eight (28) witnesses

of which five (5) were expert witnesses. The defendant-

appellant called one (1) expert witness. The

Government’s five (5) expert witnesses were from the

“school of hard knocks” and the Petitioner’s only ex-

pert could have been called one of those “nutty

professors”.

The strongest part of the Government’s case, was

the palm print, which was part of the testimony

offered by the Government experts.

It is well known, as a matter of judicial notice, that

juries are highly sensitive to comments by the trial

judge. Thus, a trial judge must seek total neutrality

and complete circumspection in the eyes and minds of

the jury. Bursten vs. United States, 395 F. 2d 976, 982-

983 (5th Cir. 1968).

In United States vs. Williams, 434 F. 2d 250 (5th Cir.

1971) the Trial Judge, in his general instructions on

the law, remarked favorably on the duties of the Secret

Service in guarding the currency of the United States.

The Fifth Circuit, in admonishing the behavior of the

Trial Judge, stated:

„... The jury’s fact-finding duties may not be

trespassed upon by a judge’s comments,

di v or impliedly, which point to one

wi or set of witnesses as the more likely

to .. elling the truth. However, innocently

they were made, we find the quoted comments

objectionable on this ground. They had the

effect of bringing vividly and favorably to the

minds of the jurors the testimony of the Secret

Service witnesses and the important work

they perform in protecting the integrity of the

currency. We review these remarks as being

out of place... and as exceeding our concept

of appropriate and fair comment from the

bench. United States vs. Williams, 447 F. ad

at 902.

The Sixth Amendment right of an accused to con-

front and cross examine the witnesses against him isa

“fundamental right” that corresponds to the right to

effective assistance of counsel.

“It is the essence of a fair trial that reasonable

latitude be given the cross-examiner, even

though he is unable to state to the court what

facts a denial of the opportunity to place the

witness in his proper setting and put the

weight of his testimony and his credibility to a

test. without which the jury cannot fairly ap-

praise them. * * * To say that prejudice can be

established only by showing that the cross-

examination, if pursued, would necessarily

have brought out facts tending to discredit the

testimony in chief, is to deny a substantial

right and withdraw one of the safeguards es-

sential to a fair trial. Alford vs. United States,

282 U.S. 687. at 688-689, 51 S. Ct. 218, 75 L. Ed.

624. Pointer vs. State of Texas, 380 U. S. 400, 85

S. Ct. 1065, 13 L. Ed. 2d 923, Brookart vs. Janis,

384 U. S. 1. 86 S. Ct. 1245, 16 L. Ed. 2d 314,

7

Smith vs. State of Illinois, 390 U. S. 129, 88

S. Ct. 748, 19 L. Ed. 2d 956.

The Court Erred In Denying The Petitioner’s

Motion To Suppress The Evidence Of The

Search Warrants (Government Exhibits 45

and 46)

The record shows that the search warrant involved

in the instant case was issued by Judge Wallace

LeBruns of the 24th Judicial District Court on March

19, 1975. (Tr. 526).

The defense attorney objected to the use of evidence

seized by way of the search warrant therein. The Court

found that the search warrant was valid. (Tr. 534).

The record also will reflect that the warrants were

issued on the basis of the affiant’s conclusions which

were not corroborated by independent surveillance.

The information in the affidavit supporting the search

warrant was obtained from so called informers who

were not shown to be reliable nor were they alleged to

be reliable.

In the case of Spinelli vs. United States, 393 U.S. 410

(1969):

“The Court held that the affidavit failed to es-

tablish probable cause because it did not state

facts enabling the magistrate to determine

that the informer was telling the truth and

because the corroboration of the informer’s

story by other parts of the affidavit was inade-

quate to compensate for the absence of such

facts.”

The Spinelli court reflected a more detailed affidavit

which contained both an informant’s tip and informa-

tion independently obtained by the police about the

suspect’s criminal reputation and his allegedly

suspicious movements.

There is clear authority to the proposition that an af-

fidavit containing police suspicion of illegal activity

without any supporting detail is clearly insufficient

for probable cause, for it puts the magistrate in the

position of accepting the police’s conclusions rather

than making his own evaluation of facts.

See Aguilar vs. Texas, 378 U.S. 108, 114 (1964). If the

only reason the magistrate has to accept an affidavit

establishing probable cause is a police submission of

an informant’s story, however detailed, a similar ab-

dication of his authority occurs. For evidence of crime,

he is relying on hearsay, the police report of the in-

former’s allegations.

See Harris vs. United States, 403 U.S. 573 (1971),

wherein the Court stated that the detailed tip was ap-

parently based on an informer's personal observation

and was therefore reliable.

In this instance, no such facts existed.

The Court Erred In Refusing To Charge The

Jury On The Petitioner’s Theory Of The Case

Perhaps the most important instruction which must

be tendered in each and every criminal case is the

defendant’s “position” instruction or his “theory of

the case.” He is entitled to have the jury consider any

theory of defense which is supported by Law, see Unit-

ed States vs. Cullen, 454 F.2d 386, 390 (7th Cir., 1971),

and which has some foundation in the evidence,

however tenuous. United States vs. Vole, 435 F. 2d 774.

776 (7th Cir., 1971); United States vs. Grimes, 413 F. 2d

1376, 1378 (7th Cir., 1969); Turner vs. State, State No.

227, June 4, 1974. See also, United States vs. Blane, 375

F. 2d 249, 252 (6th Cir., 1967).

The trial judge may not weigh the evidence support-

ing a theory of the case instruction, and if he declines

to charge on the defendant’s theory of the case, he in

effect directs a verdict on that issue against the defen-

dant.

“Even if the evidence to support the defense

was fragile“ . . or “weak, insufficient, incon-

sistent, or of doubtful creditability,”...it was

error to refuse to give the jury the substance of

Musgrave's requested instruction concerning

good faith reliance on the appraisals he sub-

mitted to the Association.” [Citations and foot-

notes omitted]. United States vs. Musgrave,

444 F. 2d 755, 765 (5th Cir. 1971).

In considering the propriety of the denial of a

favorable defense instruction on the ground that the

evidence was insufficient to require it, an appellate

court should view the evidence most favorably to the

defendant. Richardson vs. United States, 403 F. 2d 574,

575 (D.C. Cir. 1968).

Where special facts present an evidentiary theory

which, if believed, would defeat the factual theory of

10

the prosecution, a theory of the case instruction must

be given provided it is tendered. United States vs.

Leach, 427 F. 2d 1107, 1113 (ist Cir. 1970).

The defense theory was a plausible one in the cir-

cumstances, and had the jury accepted it, which it

could have properly done, the Government’s case

would necessarily have failed, and this is the absence

of concrete evidence and testimony request of the

aforementioned charge. It is recognized that a party in

a criminal case, is entitled to a specific instruction on

his theory of the case if there is evidence to support it

and a proper request for such an instruction is made.

The Defendant’s Theory of the case was contained in

Defense Jury Charges #VIII and IX:

In the case of Perez vs. United States, 297 F. 2d 12

(1961) at 16, (5th Circuit 1961).

11

one which does not unduly emphasize the

theory of the prosecution, thereby

deemphasizing proportionally the defen-

dant’s theory.” It is also fundamental to our

jurisprudence that instructions to the jury

must be consistent with each other, and not

misleading to the jurors. Smith v. United

States, 230 F. 2d 935 (6th Cir. 1956). The fact

that one instruction is correct does not cure

the error in giving another that is incon-

sistent with it. Smith v. United States, supra.

Most important, is no condition of proof is it

permissible to leave with the jury the idea that

it has become the duty of the defendant to es-

tablish his innocence to obtain an acquittal.

See e.g., Ezzard v. United States, 7 F. 2d 808

(8th Cir. 1925). The refusal of the trial judge to

instruct the jury as requested was in violation

of each of these principles.

“It is elementary law that the defendant in a

criminal case is entitled to have presented in-

structions relating to a theory of defense for

which there is any foundation in evidence.

Tatum v. United States, 190 F. 2d 612 (D.C. Cir.

1951). A charge is erroneous which ignores a

claimed defense with such a foundation. Hyde

v. United States, 15 F. 2d 816 (4th Cir. 1926). The

charge to which he is entitled, upon proper re-

quest, in such circumstances is one which

precisely and specifically, rather than merely

generally or abstractly, points to his theory of

defense, Cf. United States v. Indiana Trailer

Corp., 226 F. 2d 595, 598 (7th Cir. 1955); Apel v.

United States, 247 F. 2d 277 (8th Cir. 1951), and

The case of Strauss vs. United States, 376 F. 2d 416, at

419, (5th Cir. 1967) reiterated the doctrine that the

defendant in a criminal case is entitled to have

presented instructions relating to any foundation in

the evidence regardless as to how tenuous:

“We find no requirement that a requested

charge encompass, in the trial judge’s eyes, a

believable or sensible defense. The defense

framed by the proposed charge, if believed by

the jury, are legally sufficient to render the ac-

cused innocent. The jury is a fact-finder. If the

trial judge evaluates or screens the evidence

supporting a proposed defense, and upon such

evaluation declines to charge on that defense,

12

he dilutes the defendant’s jury trial by remov-

ing the issue from the jury’s consideration. In

effect, the trial judge directs a verdict on that

issue against the defendant. This is imper-

missible. Bryan v. United States, (5th Cir.,

1967), 373 F. 2d 403. The judge must, therefore,

be cautious and unparsimonious in present-

ing to the jury all of the possible defenses

which the jury may choose to believe. We hold

that where the defendant’s proposed charge

presents, when properly framed, a valid

defense, and where there has been some

evidence relevant to that defense adduced at

trial, then the trial judge may not refuse to

charge on that defense. In Tatum v. United

States, 1950, (88 U.S. App. D.C.) Circuit said:”

We do not intend to characterize the case for

the defense as whether strong or weak. Thatis

unnecessary, for ‘in criminal cases the defen-

dant is entitled to have presented instructions

relating to a theory of defense for which there

is any foundation in the evidence, even though

the evidence may be weak, insufficient, incon-

sistent, or of doubtful credibility. He is entitled

to have such instructions even though

testimony in support of the defense in his

own.”

Levine vs. United States, 1958, 104 U.S. App. D.C. 281,

261 F. 2d 747: Perez vs. United States, supra, Smith vs.

United States, (6th Cir. 1956), 230 F. 2d 935; United

States vs. Indian Trailer Corp., (7th Cir. 1955), 226 F. 2d

595. See Merrill vs. United States, (5th Cir. 1964), 338

F. 2d 763; Koontz vs. United States, (5th Cir. 1960), 277

F. 2d 53.

13

All evidence of which varied conclusion can be

reached must be considered as establishing a possible

defense and the defendant is entitled to such charge.

The case of United States vs. Grimes, 413 F. 2d 1376, at

1178 (7th Cir. 1969) states:

“We start with the proposition that the defen-

dant in a criminal case is entitled to have the

jury consider any theory of the defense which

is supported by law and which has some foun-

dation in the evidence, however, tenuous.

Tatum v. United States, 88(U.S. App. D.C.) 386,

190 F. 2d 612, 617 (D.C. Cir. 1951); United States

v. Phillips, 217 F. 2d 435, 442-443 (7th Cir.

1954). There is no question that the evidence in

the present case raised a jury question as to

the cause of the fight between Reid and the

guards and Grimes’ motivation in intervening

in the struggle. The issue then becomes

whether federal law provides a defense to a

prosecution under Section 111 for the use of

reasonable force to defend another from an un-

provoked assault by a federal officer.”

Once this reason theory has been established either by

direct evidence of the defense or through the insuf-

ficiency of the evidence produced by the State. It is

mandatory in equity and justice that the defense

charge be given. All are presumed to be innocent until

proven guilty and the determination of guilt is strict-

ly a jury function.

14

CONCLUSION

For the foregoing reasons, we pray for certiorari,

reversal and dismissal and such other and further

relief in the premises as this Honorable Court may

deem just and equitable.

Respectfully submitted,

ARTHUR L. HARRIS, SR.

Attorney for Petitioner

Canal-LaSalle Building

1440 Canal Street, Suite 1714

New Orleans, Louisiana 70112

561-5831

CERTIFICATE OF SERVICE

I hereby certify that a copy of this petition has been

mailed, postage prepaid, by U.S. Mail, to the Solicitor

General of the United States, Department of Justice,

Washington, D.C., and that a copy has been mailed,

postage prepaid, by U.S. Mail, to the United States At-

torney for the Eastern District of Louisiana, 500 Camp

Street, New Orleans, Louisiana, this day of June,

1977.

ARTHUR L. HARRIS, SR.

la

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

V.

Leonard WASHINGI ON and Stanley Jules Johnson,

Defendants-Appellants.

No. 76-1750.

United States Court of Appeals,

Fifth Circuit.

April 11, 1977.

Appeals from the United States District Court for

the Eastern District of Louisiana.

Before BROWN, Chief Judge, AINSWORTH, Circuit

Judge, and JAMESON’, District Judge.

JAMESON, District Judge:

Appellants, Stanley Jules Johnson and Leonard

Washington, were convicted following a jury trial, on

one count of armed bank robbery and assault, in viola-

tion of 18 U.S.C. §§ 2, 2113(a), and 2113(d), and on one

count of kidnapping and murder incident to bank

robbery, in violation of 18 U.S.C. § 2113(e). Each

appellant was sentenced to 99 years imprisonment.

We affirm.

Facts

At 11:35 A.M. on October 31, 1974, three black men

armed with handguns entered the Bank of St. Charles

* Senior District Judge of the District of Montana, sitting by

designation.

in Boutte, Louisiana. After forcing the bank

employees and a customer into the vault, the men

robbed the bank of $21,982.75, and left the scene in a

1973 Mercury Comet (white with a brown top), which

had been parked in front of the bank. Judy Gibbs, a

witness who was parked in front of the bank, saw three

black men leave the bank, get into the Mercury Comet,

back out “real fast” and head west on Highway 90.

At about noon Joyce Bernard, who had been driving

west on Highway 90, turned onto Bayou Gauche Road

where she saw two cars in the righthand lane (her

lane) of traffic — a late model two-toned compact car

and a larger late model white car. Two black men stood

between the cars conversing. One of them entered the

larger car, drove past the compact, made a U-turn, and

stopped next to the compact. The other man, who was

wearing a red bandana around his throat, a multiple-

colored flannelette shirt“, and a little hat“, squatted

down behind the trunk of the compact as if he was

“unlocking the trunk or fixing a flat“. Both men then

drove off in the larger car.

Susan Lewis was also driving on Bayou Gauche

Road at about noon. As she stopped behind a two-toned

compact car parked in the right lane in order to let a

truck pass from the opposite direction, she noticed

blood dripping from the trunk of the car. Upon the

arrival of police, the car’s trunk was pried open,

revealing the body of Irwin Brown, who had died of a

gunshot wound in the head. The car was identified as a

1973 Mercury Comet belonging to Brown. Recovered

1 It was stipulated that appellant Johnson owned a white 1974

Chevrolet Malibu Super Sport sedan.

3a

from the roadside near the car were an orange hardhat,

a red bandana, a glove, a blue workshirt, and a button

identified as coming from the shirt. An examination of

the car revealed a latent palm print on the right-front

door handle, a spent .45 caliber shell casing, and the .45

caliber bullet which killed Brown.

The evidence disclosed that Irwin Brown, acustoms

broker and international freight forwarder in New

Orleans, had a parking contract with the Holiday Inn

on Royal Street and always parked his car, a white

1973 Mercury Comet with a brown top, there. On the

morning of October 31, 1974, Brown followed his daily

routine of dropping his son off at school and

proceeding to work, but Brown never appeared for

work.

Emile Carmouche, an employee of the Holiday Inn,

testified that between 7:30 and 8:00 A.M. on October 31

he noticed two men, one wearing a red bandana on his

head, enter the Holiday Inn from Exchange Alley and

walk up the stairwell leading to the parking lot. Car-

mouche identified one of the men as appellant

Washington, although he could not be “sure beyond a

reasonable doubt“

Employees of the bank identified one of the robbers

as wearing a bluish- gray shirt” and another as wear-

ing a “red scarf“, an orange hardhat, and a flanne-

lette shirt, black with red stripes. The articles of

clothing found near the car on Bayou Gauche Road

were identified by the employees as similar to those

worn by the robbers. Two of the employees, Myra

Fields and Mona Scott, testified that they had been

shown photo spreads by the F.B.I. following the

4a

robbery and had identified the picture of Johnson as

being similar to one of the men involved. Mrs. Fields

testified that, although she was not positive, Johnson

“could be the person that had come to my window”.

Mrs. Scott identified Johnson in court as one of the

robbers and testified that she was “about ninety per

cent sure” of her identification. A third employee,

Gilda Rachael, identified Johnson as “almost definite-

ly” being one of the robbers, and testified that she had

previously identified Johnson at a police lineup on

May 20, 1975.

Althea Tolliver, a friend of Johnson and Washing-

ton, was called as a witness by the Government.

Tolliver, on October 31, 1974, was awaiting trial on

charges of armed robbery. She agreed with a Govern-

ment detective to assist in this case in return for his

assistance in the disposition of the charges against

her. Tolliver testified that upon her release on bail, she

met Johnson, who told her that he “knew just what

went down” at the bank robbery. Johnson said that one

of the women at the bank had on a blue dress and that

he knew one of the black women who worked there but

wasn't worried. He told Tolliver that her “pistol sure

came in handy that day”’.2 When Tolliver asked him for

some money, Johnson replied: “Well, I don’t have any

right now. If you would have come to me a couple of

weeks ago, I had a fist full of fifties... .”

Tolliver testified that she later met Washington.

Upon being asked about the robbery, he said: Well. I

2 Tolliver testified that she had stolen a .45 caliber automatic

pistol from J. Dudley Bruton, one of her prostitution clients, and

had given it to Washington. Washington later told her that he had

sold the gun to Johnson.

5a

did it [but] I didn’t get my share of the money When

asked about the guns used in the robbery, Washington

replied: “I got a prettier .38 than your .45”. Tolliver

further testified that the hardhat was similar to one

owned by Washington and that the workshirt was

similar to one owned by Johnson.

A .45 caliber colt automatic pistol was received in

evidence as Exhibit 17. Testimony revealed that the

gun had been purchased from Gretna Gun Works, Inc.

by Charles Strickland, who sold it to George Evans,

who in turn sold it to J. Bruton. As noted supra,

Tolliver testified that she stole the gun from Bruton

and gave it to Washington. She identified Exhibit 17as

similar to the gun she stole from Bruton. A firearms

expert testified that the shell casing found in the trunk

of the Mercury Comet had been fired from that pistol

“to the exclusion of all other weapons in existence“.

He also testified that the slug recovered from the trunk

could have been fired from the gun.

A fingerprint expert testified that a latent palm

print found on the right front door handle of Brown's

Comet was definitely the palm print of Stanley John-

son. Records of South Central Bell Telephone Com-

pany showed that at 2:35 P.M. on October 31, 1974,

Johnson made a person-to-person phone call from a

phone booth in Luling, Louisiana, to his home in

Marrero, Louisiana. The phone booth was three miles

from Boutte on River Road, which connects Boutte

with New Orleans.

3 The expert also testified that two .45 cartridges given to the

F.B.I. by Bruton had been inserted and extracted from Exhibit 17.

He testified that these cartridges and the spent casing found in the

Comet’s trunk had been inserted in the same gun.

6a

Washington did not take the stand or call any

witnesses. Johnson called several witnesses who

testified that after 3:00 P.M. on the afternoon of October

31, 1974, Johnson had attended a football game and had

helped a friend clean graves. Johnson himself testified

about his activities on the afternoon of October 31, but

could not recall what he had done that morning. He

denied participating in the robbery of the Bank of St.

Charles, denied making any statements to Althea

Tolliver, and denied owning a .45 automatic. Johnson

further testified that he didn’t know how his palm

print got on Brown’s car.

Comments by Court

Both appellants argue that the court erred in

remarks concerning the acceptability of a proffered

Government expert in lifting latent fingerprints. In

accepting the expert over defense counsel's objection

that the witness was unfamiliar with leading texts and

articles on the lifting of latent prints and was not an

expert in the field of fingerprint analysis, die court

stated:

He's totally acceptable to the Court as an

expert.

“T say that he has had more experience than

any F. B. I. agent that’s worth his salt.

He's had more experience than any police

officer who’s worth his salt.

He's had more experience than all of those

nutty professors that you have talked about.

“It’s done by the school of hard knocks, is

where you learn to dust something and lift

fingerprints, and not by some professor sit-

|

7a

ting in some university who doesn’t know his

neck from third base.”

Johnson contends that these remarks denied him

effective cross-examination of the expert’s

qualifications. Both appellants contend that the

court’s statement adversely affected the credibility of

Johnson’s expert witness, Dr. Elder, a psychologist

and professor, who testified about the possibility of

error in photographic identifications. Appellants

claim that the court violated its duty to remain neutral

and improperly trespassed on the jury’s fact-finding

duties. See United States v. Williams, 447 F.2d 894 (5

Cir. 1971).

While the remarks were unfortunate, viewing the

record as a whole they do not constitute reversible

error. First, they took but a few moments of a five day

trial, concerned a procedural matter, and did not

reflect on appellants’ guilt or innocence. See United

States v. James, 510 F.2d 546, 550 (5 Cir. 1975), cert.

denied 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1976). Se-

cond, the comments were made long before appellants’

expert took the stand, and were not directed towards

him.‘

4 Moreover, immediately following the comments, the court ad-

monished the jury:

“I want the Jury to understand that the Court’s not

vouching for the qualifications of this witness, for his

testimony, or anything. I accept him as an expert.

“I accept him on the basis of his expertise, of his tra in-

ing, of his having done the thing over a period of thirteen

ears.

. “I think he’s certainly capable of examining, having

been an expert in the field.

“Now, it’s up to the Jury to give the weight that their —

that they are going to give to his testimony, whether they

believe it or not. I'm not vouching for him.”

Furthermore, the court in its charge instructed the jury that they

were the sole judges of the facts and were not to be influenced by

the court’s comments during trial.

8a

Comments by Witness

The Government’s first witness was Sandra Brown,

widow of the murder victim. Following her testimony,

defense counsel asked that Mrs. Brown remain under

subpoena and subject to the court’s sequestration rul-

ing. The Government objected, arguing that the

defense could have asked anything they wanted of

Mrs. Brown while she was on the stand, and the follow-

ing colloquy ensued:

“THE COURT: All right.

“Mrs. Brown, you may go home if you wish,

but you will remain under subpoena so that

you can come back.

“THE WITNESS: Why can't sit in here?

“THE COURT: You can’t sit in the court-

room.

“THE WITNESS: They are doing that on

purpose.

“THE COURT: There’s a possibility that

you will be recalled as a witness, therefore,

you can’t sit in the courtroom.

“THE WITNESS: They are doing that on

purpose.

“THE COURT: Now, ma’am, that’s not for

you and me to say, I don’t know, so —

“THE WITNESS: That’s not right.

“THE COURT: All right. But, the cir-

cumstances are that you must stay out of the

courtroom now.

22

“THE WITNESS: It's not fair.

“THE COURT: Well, you must stay out of

the courtroom.”

Defense counsel moved for a mistrial, which the

court denied, stating: “I don’t think that her outburst

amounted to that much”. Appellant Washington con-

tends that the court erred in denying his motion for

mistrial on the ground that Mrs. Brown's remarks pre-

judiced the jury against the defense at the outset of the

trial. He argues that the Government violated its duty

of fairness in the prosecution of the case by making

the objection which prompted the outburst. Washing-

ton contends that the court, sua sponte, should have

taken steps to eliminate or cushion the effect of the

remarks on the jury.

We disagree. This dialogue occupied only a moment

of a lengthy trial and concerned a procedural issue.

See United States v. James, supra. The witness's

remarks were unsolicited by the Government. Any

effect this incident may have had on the ultimate ver-

dicts was minimal. Neither defense counsel requested

any cautionary instructions. The court bears no duty,

sua sponte, to give such instructions. We conclude that

Washington was not substantially prejudiced by the

unsolicited remarks of the witness.

Suppression of Evidence

Johnson testified on cross-examination that he had

never owned a .45 caliber pistol and had never kept

any ammunition or holster in his house. Over defense

objection, the Government rebutted Johnson's

10a

testimony by introducing a shoulder holster and .45

caliber bullet seized on May 19, 1975, from Johnson’s

bedrooin pursuant to a search warrant. Johnson con-

tends that the evidence seized in the search should

have been suppressed and not used for impeachment

because the affidavit made in support of the search

warrant’ did not establish probable cause. Relying on

Aguilar v. Texas, 378 U.S. 108, 84S.Ct. 1509, 12 L.Ed.2d

723 (1964) and Spinelli v. United States, 393 U.S. 410, 89

S.Ct. 584, 21 L.Ed.2d 637 (1969), Johnson argues that the

affidavit did not state sufficient facts to establish the

reliability of the informant.

The affidavit was made by Detective Mitchell of the

Jefferson Parish Sheriff's office. In addition to stating

facts about other crimes in which Johnson was believ-

ed to be involved, Mitchell set forth in detail a conver-

sation on April 15, 1975, between F.B.I. Agent Beinner,

who was in charge of the investigation of this case,

and an informant Beinner knew to be “reliable”. The

informant told Beinner that the informant was stand-

ing on a street corner on November 1, 1974, when John-

son and Washington drove up. Johnson displayed a .45

caliber pistol and told the informant that it had been

used in the commission of an armed robbery of a bank

near Hahnville, Louisiana. Johnson said that during

the robbery, they had to place a man in the trunk of the

car. While Johnson was telling the informant about the

robbery, he suddenly remembered that he had left a

blue shirt marked Loop Uniform“ on the inside at the

scene of the abandoned getaway car and was afraid the

shirt might be traced to him. Washington then became

upset and advised Johnson to leave. Beinner cor-

5 Two search warrants were obtained, the other pursuant to an

investigation in an unrelated murder case.

. a

re

——

11

roborated the informant's information with facts dis-

covered during the F. B. I. investigation of the armed

robbery of the Bank of St. Charles and the murder of

Irwin Brown. Affiant stated that these facts were not

publicized and were known only to investigators and

the perpetrator”.

We conclude that the affidavit alleged facts suf-

ficient to meet the “substantial basis” test of Jones v.

United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697

(1960) and United States v. Harris, 403 U.S. 573, 91 S. Ct.

2075, 29 L.Ed.2d 723 (1971). In Jones, the Court stated

that “[a]n affidavit is not to be deemed insufficient”

because it sets out observations by someone other

than the affiant, so long as a substantial basis for

crediting the hearsay is presented“. 362 U.S. at 269, 80

S.Ct. at 735. The Court continued:

¶ We have held that [an officer] may rely upon

information received through an informant,

rather than upon his direct observations, so

long as the informant’s statement is

reasonably corroborated by other matters

within the officer’s knowledge. Draper v. Unit-

ed States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d

327. 362 U.S. at 269, 80 S.Ct. at 735.

The Court found a substantial basis” for crediting the

hearsay in the search warrant affidavit because the in-

formant had previously given accurate information,

his story was corroborated by “other sources”, and the

defendant was known to the police as a user of nar-

cotics.

12a

United States v. Harris concerned the sufficiency of

an affidavit for a search warrant based on the hearsay

statements of an unnamed informant whom the af-

fidavit stated was a “prudent person”, and on the af-

fiant’s knowledge of the defendant’s reputation as a

“trafficker of nontaxpaid distilled spirits”. In finding

probable cause for the issuance of a warrant based on

the affidavit, the Court reviewed its holding in Jones,

supra, and stated that “Aguilar cannot be read as

questioning the ‘substantial basis’ approach of

Jones“. 403 U.S. at 581, 91 S.Ct. at 2081. The Court found

that the affidavit, like the one in Jones, “contained a

substantial basis for crediting the hearsay” because

both affidavits purported “to relate the personal

observations of the informant” and recited “prior

events within the affiant’s own knowledge” — factors

“clearly distinguish[ing] Spinelli”. It was held that an

averment that the informant had previously given

“correct information” was not necessary. The Court

declined to follow Spinelli to the extent that it preclud-

ed reliance by a policeman on his knowledge of a

suspect's reputation in assessing the reliability of the

informant's tip. 403 U.S. at 583, 91 S.Ct. 2075.

The affidavit here provided a substantial basis for

crediting the hearsay.® We hold that the search of

Johnson's residence was made pursuant to a valid

warrant and that the evidence obtained thereby was

6 It may be noted also that the evidence relating to the search was

introduced for impeachment purposes. In a different context the

Court has recognized that evidence inadmissible in the

prosecution's case in chief under the exclusionary rule may be

used for impeachment purposes to attack the credibility of the

defendant's trial testimony. Harris v. New York, 401 U.S. 222, 91

S.Ct. 643, 28 L.Ed.2d 1 (1971).

13a

properly admitted for purposes of impeaching John-

son's testimony.

Jury Instructions

Appellant Johnson contends that the court erred in

refusing to instruct the jury on what he terms “the

defendant’s theory of the case“, contained in his re-

quested instructions VIII and IX. Requested instruc-

tion VIII reads:

“In order to convict the accused, each in-

dividual juror should arrive at the conclusion

that the defendant has been proven guilty

beyond a reasonable doubt, that is, each in-

dividual juror, ‘and each juror’ having in view

the oath he had taken and his duty and respon-

sibility thereunder should have his own mind

convinced beyond a reasonable doubt upon all

the evidence before he should consent to a ver-

dict of guilty.”

This requested instruction was fully covered by the

court’s charge that the Government bore the duty of

proving each element of its case beyond a reasonable

doubt and that each juror must incependently reach

his own conclusion. See United States v. Garcia, 531

F.2d 1303, 1307 (5 Cir. 1976). Proposed instruction VIII

was properly refused.

The second paragraph of Johnson’s proposed in-

struction IX reads:

“Further the defense theory of the case on

the palm print is that the evidence produced

14

did not establish how long the latenſt] prints

had been on the car, or who the other prints on

the car belonged to, therefore the evidence on

the palm print is inconclusive. I charge you

where any element of prosecution’s rests on

circumstantial evidence, such evidence may

be a basis for conviction only if it shows com-

plete inconsistency with innocence and ex-

cludes every reasonable hypothesis except

that of guilt of the accused. This simply means

that the prosecution must prove each and

every link in its chain of evidence beyond a

reasonable doubt, and if any one link in the

chain has not been proved beyond such

reasonable doubt, a verdict must be returned.

In order to convict the defendant on cir-

cumstantial evidence, such evidence must be

inconsistent with his innocence and fairly

consistent with his guilt.”

This instruction was also properly rejected. The first

sentence is clearly a comment on the weight of the

evidence. The remainder of the instruction deals with

the “reasonable hypothesis” test. This court has con-

sistently followed Holland v. United States, 348 U.S.

121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) and held that such

an instruction “is not required where there [are] ade-

quate instructions on reasonable doubt”. United

States v. Pipkins, 528 F.2d 559, 564 (5 Cir. 1976), cert.

denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191

(1976). The jury here was adequately instructed on

reasonable doubt.

15a

Sufficiency of the Evidence

Appellant Washington contends that the evidence is

insufficient to support his conviction. He argues that

Carmouche’s identification testimony was so ten-

tative as to raise only a suspicion that he could have

been one of the robbers. Washington attacks the

credibility of Althea Tolliver’s testimony by reciting

the evidence offered to impeach her.

Upon a review of the record and taking the evidence

in the light most favorable to the Government, we con-

clude that there is sufficient evidence to sustain

Washington's conviction. Tolliver testified that when

asked about the bank robbery, Washington said “Well,

I did it“. In further conversation about the weapons

used in the robbery, Washington stated that they were

a 38 and “your [Tolliver’s] 45. While there was

evidence to impeach Tolliver’s testimony, this

evidence was argued at length by counsel and con-

sidered by the jury. The jury obviously believed

Tolliver. Carmouche’s identification of Washington

as one of the two men who entered the Holiday Inn gar-

age on the morning of October 31, 1974, while by no

means positive, further implicated Washington. There

was testimony that Washington owned an orange

hardhat similar to that found near the murder victim's

car. Although the evidence against Washington may

not be overwhelming, we find it sufficient to establish

Washington's guilt beyond a reasonable doubt.

Motion for New Trial

Washington moved for a new trial on grounds that

(1) comments made by Johnson’s attorney in closing

16a

argument reflected on Washington's failure to testify,

and (2) the Court should have severed the trials of the

two defendants. Washington claims error in the

court’s denial of his motion.

During his argument to the jury, counsel for John-

son referred to facts to which his client had testified

during the trial. Washington contends that these

references by inference drew the jury’s attention to

Washington’s failure to testify and deprived him of the

right to remain silent, thereby falling within the

prohibition of De Luna v. United States, 308 F.2d 140(5

Cir. 1962).

We find no merit in this contention. De Luna is dis-

tinguishable. There counsel for one defendant

repeatedly commented on the failure of the co-

defendant to testify. Here Johnson merely sum-

marized the facts to which his client testified. He made

no reference to Washington’s failure to testify. It is

clear from the holding of this court in United States v.

Hodges, 502 F.2d 586, 587 (5 Cir. 1974) that De Luna is

inapplicable. The court there said: “A mere favorable

comment upon the fact that one of several co-

defendants testified does not involve the same poten-

tial for prejudice as an adverse comment by counsel

upon the failure to testify of the other co-defendant. We

decline to extend De Luna to cover the situation.“

Washington concedes that the “court did, in its

general charge to the jury, correctly state the law

regarding the failure of an accused to testify in his

own behalf”. This charge was sufficient.

17a

Washington contended for the first time in his mo-

tion for a new trial that his trial should have been

severed to avoid “the cascading effect of the evidence

introduced against Stanley Johnson”. Since he did not

either before or during the trial move for a severance,

to prevail on this issue now, Washington must

demonstrate actual prejudice resulting from the

failure to sever his trial from that of his co-defendant.

Tillman v. United States, 406 F.2d 930, 934-935 (5 Cir.

1969), vacated on other grounds, 395 U.S. 830, 89 S.Ct.

2143, 23 L.Ed.2d 742 (1969). Washington has failed in

this burden. Washington and Johnson were properly

joined since both were involved in both counts of the

indictment. See F.R.Crim.P. 8(b). Washington does not

claim that his co-defendant had an antagonistic

defense, or that the jury was confused by the number of

defendants or issues. See United States v. Larson, 526

F. 2d 256, 260 (5 Cir. 1976), cert. denied. U.S. ____, 97

S.Ct. 110, 50 L.Ed.2d 106. The law of this circuit is clear

that Ja] defendant cannot claim prejudice from

failure to sever merely because his likelihood of ac-

quittal is not as great in a joint trial as in a separate

trial”. United States v. Larson, supra at 260.

Furthermore, the trial court properly instructed the

jury on their duty to consider the guilt of each defen-

dant separately. “[T]Jhis instruction was given to the

jury near the end of the judge’s instructions, such that

it cannot be argued that it did not make an impression

on the jury.” United States v. Larson, supra at 260.

Washington has failed to demonstrate any actual pre-

judice. The trial court’s denial of his motion for a new

trial was clearly within its discretion.

18a

Brady Material

Following trial, defense counsel learned that a five

thousand dollar reward had been offered for informa-

tion leading to the arrest and conviction of those

responsible for the robbery of the Bank of St. Charles

and the murder of Irwin Brown.’ Upon learning of the

reward, appellants moved for a new trial, contending

that the Government had a duty under Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963) to reveal the reward offer to the defense and

argued that the Government’s failure to do so denied

them a fair trial. The court, following a hearing, denied

the motions stating:

“I don’t think that the government has the

duty to disclose, but even if they had the duty, I

don’t think it would have made any difference,

it was brought out to the jury that Althea

Tolliver was paid a thousand dollars by the

government and she entered into a plea or

bargain for her testimony. It was all brought

out to the jury.”

The recent decision of the Supreme Court in United

States v. Agurs, 427 U.S. 97,96 S. Ct. 2392, 49 L.Ed.2d 342

(1976) controls our disposition of this issue. The Court

there held that the Brady rule may apply in three

different situations: (1) where the undisclosed

evidence demonstrates that the prosecution’s case in-

cludes perjured testimony and that the prosecution

knew, or should have known of the perjury”; (2) where

there is a pretrial request for specific evidence; and (3)

7 The reward was offered jointly by the Bank of St. Charles and

the “Friends of Irwin M. Brown”.

19a

where there is no request or simply a general request

for “all Brady material”. With respect to the third

category the Court recognized that, “If there is a duty

to respond to a general request of that kind, it must

derive from the obviously exculpatory character of

certain evidence in the hands of the prosecutor”.

The Court in Agurs held that, “The mere possibility

that an item of undisclosed information might have

helped the defense, or might have affected the outcome

of the trial, does not establish ‘materiality’ in the con-

stitutional sense.” 96 S.Ct. at 2400. It was recognized

that the courts “cannot consistently treat every non-

disclosure as though it were error“. The Court con-

tinued: “It necessarily follows that the judge should

not order a new trial every time he is unable to

characterize a nondisclosure as harmless under the

customary harmless error standard.“ Id. at 2401.

In discussing the “standard of materiality” which

gives rise to a duty on the part of » prosecutor “to

volunteer exculpatory matter to the defense“, the

Court said:

“It necessarily follows that if the omitted

evidence creates a reasonable doubt that did

not otherwise exist, constitutional error has

been committed. This means that the omission

must be evaluated in the context of the entire

record. If there is no reasonable doubt about

guilt whether or not the additional evidence is

considered, there is no justi‘ication for a new

trial. On the other hand, if the verdict is

already of questionable validity, additional

evidence of relatively minor importance

might be sufficient to create a reasonable

doubt.” Id. at 2401-2402.8

This court summarized the Brady rule in Calley v.

Callaway, 519 F.2d 184, 223 (1975) as follows:

“The basic import of Brady is not that there is

an abstract right on the part of the defendant to

obtain all evidence possibly helpful to his

case, but rather that there is an obligation on

the part of the prosecution to produce certain

evidence actually or constructively in its

possession or accessible to it in the interests

of inherent fairness. As we stated most recent-

ly in United States v. Ramirez, 5 Cir., 1975, 513

F.2d 72, 78, Brady ‘rests upon an abhorrence of

the concealment of material arguing for in-

nocence by one arguing for guilt.’ 513 F.2d at

78.”

8 See also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972) which falls into the first category established by

Agurs. The Government there failed to disclose to the defense that

the Government's key witness had been promised immunity from

prosecution in return for his testimony, despite the statement of

the witness on cross-examination that Nobody told me! wouldn't

be prosecuted”. In discussing the necessity for disclosure, the

Court said:

“When the ‘reliability of a given witness may well by

determinative of guilt or innocence,’ nondisclosure of

evidence affecting credibility falls within this general

rule. Napue, supra, [Napue v. Illinois, 360 U.S. 264 (1959)]

at 269, 79 S.Ct. 1173, 3 L.Ed.2d 317. We do not, however,

automatically require a new trial whenever ‘a combing of

the prosecutors’ files after the trial has disclosed evidence

possibly useful to the defense but not likely to have chang-

ed the verdict... .” United States v. Keogh, 391 F.2d 138,

148 (CA 2 1968). A finding of materiality of the evidence is

required under Brady, supra, 373 U.S. at 87, 83 S.Ct. [1194]

at 1196. A new trial is required if ‘the false testimony could

in any reasonable likelihood have affected the judg-

ment of the jury... Napue, supra, 360 U.S. at 271. 79 S. Ct.

[1173] at 1178.“ 405 U.S. at 154, 92 S.Ct. at 766.

2ia

The parties stipulated that the reward offer had been

published in four newspapers in New Orleans and St.

Charles and telecast on a New Orleans station, and

that the “Government did not solicit, was not a source

of, nor was a party to the offer of reward”. It was

stipulated further that Althea Tolliver knew of the

offer of reward; that attorneys for the Government

were aware that she knew of the offer and “hoped to

receive same; and that attorneys for the Government

informed the court and defense counsel immediately

prior to trial, in response to a defense request for

“Brady” material, that there was no Brady material.

The defense was allowed open file“ discovery by the

Government, but no reference to the award was con-

tained in the file.

We question whether the reward offer under the cir-

cumstances was the type of “exculpatory evidence”

contemplated by Brady and subsequent cases. This is

not a case where the Government had “exclusive

access” to and concealed evidence or information

which would exculpate the defendant. The Govern-

ment was not a party to the reward offer and did not

participate in making or obtaining it. The reward offer

did not directly exculpate the defendant. At most it

cast further doubt on the credibility of Tolliver, ad-

mittedly a crucial witness.

In any event, from a review of the entire record, we

are satisfied that the omitted evidence“, the reward

offer, does not create a reasonable doubt that did not

otherwise exist”. Althea Tolliver admitted that her

motive for testifying was that she had made a plea

bargain in a state case where she was charged with

22

armed robbery.“ She testified that her bond on the

charge was reduced from $200,000 to $11,000, and that

she was ultimately given a suspended sentence on a

plea to a lesser charge. Tolliver further testified that

she had received “a little over one thousand dollars”

from the F.B.I. in return for the information she sup-

plied. There was other testimony that Tolliver was a

thief and had been a prostitute. The evidence provided

a substantial basis for the impeachment of Tolliver’s

testimony and was extensively argued to the jury by

all counsel. The jury was in a good position to assess

Tolliver’s credibility. In light of all the evidence, it is

unlikely that evidence concerning the offer of reward

would have affected the jury’s determination of

Tolliver’s credibility or would have produced a

“reasonable doubt” as to Washington’s guilt. In the

words of Agurs, “the mere possibility that [this] item

of undisclosed information might have helped the

defense. . does not establish ‘materiality’ in the con-

stitutional sense”.

While we are concerned about the Government

counsel’s remark in closing argument that Althea

Tolliver “has got nothing to gain by coming in here to

testify”, we do not think it requires a conclusion con-

trary to the one we reach here. This was an isolated

9 Tolliver testified:

Well when the time came for me to go back to Court and

— see, they started putting a lot of pressure on me, which I

explained it to them, and I told them thatI was — I wouldn't

volunteer no information to them no matter what it took,

because of fear on my life and because it — of emotional

feelings involved, but when a push came to a shove, and I

figured that it either had to be my neck or their's, so I

volunteered information that I had heard, and this is when

they told me that if I volunteered this information for them,

that the only deal they could make with me is to let me out

on probation, active probation, that I make six thousand

dollars restitution back to that jail, which I haven't made.”

comment upon which the Government did not

elaborate. It was made in the middle ofa lengthy argu-

ment on Tolliver’s credibility and was not prominent

in that context.

We conclude that the district court could properly

find that the reward offer would not have “made any

difference” and that under the criteria of United States

v. Agurs, supra, the reward information was not re-

quired to be disclosed by the Government. The motion

for a new trial was properly denied.

Affirmed.