United States v. Birdie Louise Joshua Harris, United States of America v. Billy Charles Harris

(Concurring and dissenting):

The majority found no error as to appellants’ first three contentions and I concur in this result. However, as to the last two contentions, I cannot agree with the majority’s conclusions and accordingly dissent.

*15 DENIAL OF RIGHT TO CROSS-EXAMINATION

No principle of law is more firmly settled in this circuit than that which recognizes that the scope and extent of cross-examination generally lies within the sound discretion of the trial court. United States v. Coulter, 474 F.2d 1004 (CA9 1973), cert. denied 414 U.S. 833 , 94 S.Ct. 172 , 38 L.Ed.2d 68 (1973); United States v. Haili, 443 F.2d 1295 (CA9 1971); Viramontes-Medina v. United States, 411 F.2d 981 (CA9 1969); Harris v. United States, 371 F.2d 365 (CA9 1967). Only where the record firmly shows that the trial court committed an abuse of discretion will a reversal be required. Harris, supra.

There is no question that inquiry into motive and bias are permissible avenues of cross-examination. In the instant case, defense counsel was permitted to cross-examine the informant on the financial remuneration he received for testifying as an informant for the Government, 1 the number of times for…

501 F.2d 1 UNITED STATES of America, Appellee, v. Birdie Louise Joshua HARRIS, Appellant. UNITED STATES of America, Appellee, v. Billy Charles HARRIS, Appellant. Nos. 73-1923, 73-2163. United States Court of Appeals, Ninth Circuit. July 24, 1974, Rehearing Denied Sept. 25, 1974. Joseph T. Vodnoy, Los Angeles, Cal., for Birdie Harris. Morton Boren, Los Angeles, Cal., for Billy Harris. John K. Cameron, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge. * OPINION ELY, Circuit Judge: 1 The appealing defendants were tried together, each being charged with four counts of violating 21 U.S.C. 841(a)(1). Counts One and Two charged that, on January 22, 1973, both Birdie Harris and Billy Harris 1 knowingly and intentionally possessed 19.05 grams of heroin with intent to distribute it, and that they knowingly and intentionally distributed that substance. Counts Three and Four similarly charged that, on February 8, 1973, both defendants possessed with the intent to distribute, and that they distributed, 352.1 grams of heroin. After pleading not guilty, both Birdie Harris and Billy Harris were convicted by a jury on all four…

The appealing defendants were tried together, each being charged with four counts of violating 21 U.S.C. § 841 (a)(1). Counts One and Two charged that, on January 22, 1973, both Birdie Harris and Billy Harris 1 knowingly and intentionally possessed 19,05 grams of heroin with intent to distribute it, and that they knowingly and intentionally distributed that substance. Counts Three and Four similarly charged that, on February 8, 1973, both defendants possessed with the intent to distribute, and that they distributed, 352.1 grams of heroin. After pleading not guilty, both Birdie Harris and Billy Harris were convicted by a jury on all four counts. A brief summary of the facts, in the light most favorable to the *3 Government, follows. See Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942).

The prosecution’s case was primarily-based upon the testimony of an informant, John Durden. The first transaction was arranged by Durden in a telephone conversation with Billy Harris. Durden expressed a desire to purchase an ounce of heroin and was told to come to a house in Inglewood, California. Durden and John Jackson, an undercover agent of the Bureau of…