# Petition — Johnson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 832

## Text

— —
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
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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1999%3A1. Public record. Not legal advice.