The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
This matter comes before the Court on the defendant's motion for a new trial, or, in the alternative, for a judgment of acquittal after a jury verdict of guilty on all three counts charged in the indictment. The three counts upon which the defendant was found guilty were as follows:
Count I Possession with intent to distribute a schedule II controlled substance in violation of 21 U.S.C. § 841(a)(1);
Count III conspiring to distribute a schedule II controlled substance in violation of 21 U.S.C. § 846.
The defendant's original motion raised seven issues for the Court to decide, but in his brief he has narrowed the issues to five:
1. did the trial judge err in failing to grant a mistrial when the United States Attorney made a statement to a potential witness at a hearing outside the presence of the jury regarding the possibility that such witness may be committing perjury if he testified contrary to a statement which he made under oath?
2. did the trial judge err in permitting the government to cross-examine the defendant regarding a prior conviction?
3. did the trial judge err in permitting the government in its cross-examination to inquire of the defendant whether he had been convicted of a crime for which he received a sentence of probation?
4. did the trial judge err in failing to charge the jury that the felony for which the defendant had been previously convicted is now a misdemeanor?
5. did the trial judge err in failing to sustain defense counsel's objection concerning the United States Attorney's closing address wherein he imputed personal knowledge to defense counsel of the reason for the delay in indicting the defendant?
1. Did the trial judge err in failing to grant a mistrial after the United States Attorney made a statement to a potential witness at a hearing outside the presence of the jury regarding the possibility that such witness may be committing perjury if he testified contrary to a statement which he made under oath?
No. After the first two government witnesses had testified, the United States Attorney informed the Court that he wished to call to the stand the government's informant in this case. The United States Attorney stated to the Court that the informant who was then imprisoned in a state institution might be a recalcitrant witness and that there was a possibility that he might wish to invoke his Fifth Amendment privilege against self-incrimination. The informant was then brought into the courtroom and a hearing was held outside the presence of the jury. The purpose of the hearing was to determine whether or not the informant intended to assert the Fifth Amendment privilege against self-incrimination and if so, to determine whether there was a reasonable cause to apprehend danger from any direct answers he might give thereby justifying his invocation of the testimonial privilege. Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).
During the questioning of the informant, he stated that he knew nothing about the case, that he did not want to testify, that he desired to invoke his Fifth Amendment privilege and that he wanted a lawyer to advise him. The United States Attorney informed the Court that under the circumstance the informant would not be called by the government to testify. At this point, the informant agreed to talk to defense counsel if defense counsel desired to speak to him at which time the United States Attorney made the following statement:
Your Honor, I will insist that since he [Mr. Carroll, Defense Counsel] is talking to Mr. Smith [informant] as a potential witness, not as a client, that I be present. I would ask that I be present. I would ask that I be present in that discussion.
I suspect that there is a possibility that if this witness is called to testify -- and I don't know this for sure, but according to the statement he has made here before Your Honor, that he knows nothing about this, that he may be perjuring himself if he is called.
Defense counsel after the United States Attorney's remarks asked for a mistrial which the Court denied. The informant then stated: "If I can help the defender, Your Honor, I will be glad to," after which the Court gave defense counsel the opportunity to talk to the informant. The Court stated that if defense counsel, after meeting with informant, wished to call him as a witness for the defense, it would be necessary to continue the hearing out of the presence of the jury so as to determine whether the informant still intended to invoke his Fifth Amendment privilege, and if so, whether he was entitled to claim the testimonial privilege. After defense counsel conversed with the informant, he stated to the Court that the defense did not intend to call the informant as a witness. Accordingly, the hearing out of the presence of the jury was terminated and the government closed its case.
In light of these facts, the Court did not err in failing to grant the defense motion for a mistrial. The statement of the United States Attorney was made out of the hearing of the jury and with no apparent intent to threaten or intimidate the informant. The United States Attorney stated on the record he did not act to threaten the prosecutive witness but acted simply out of an abundance of caution in light of the fact that he believed the witness might perjure himself. In the recent case of Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972), the United States Supreme Court held that the threatening remarks of the trial judge effectively drove a defense witness on the stand and deprived the defendant of due process. In that case, the trial judge gratuitously singled out the sole defense witness for a lengthy admonition on the dangers of perjury. In Webb, the trial judge did not stop at warning the witness of his right to refuse to testify and of the necessity of telling the truth but instead implied that he expected the witness to lie. The trial judge then went on to assure the witness that if he lied he would be prosecuted and probably be convicted of perjury, that the sentence for that conviction would be added to his present sentence and that the result would be to impair his chances of parole.
The touchstone of the Supreme Court's decision in Webb was that the unnecessarily strong terms used by the judge could well have exerted duress on the witness so as to preclude him from making a free and voluntary choice whether or not to testify. The Court concluded that the trial judge's remarks effectively drove the witness off the stand and, thus, deprived the defendant of due process of law.
In the instant case, the United States Attorney's statement certainly did not affect the prospective witness' decision whether to testify and did not preclude him from making a free and voluntary choice whether to testify. The record is clear that the Court advised the informant of his Fifth Amendment rights; advised him that no one was trying to "railroad" him; and advised him that his rights would be observed. The record also shows that the Court did not condone the remarks of the United States Attorney and gave the defense an opportunity to talk to the informant so as to enable defense counsel to determine whether or not he desired to call him to the stand. After the United States Attorney's statement, there was no indication that the informant would refuse to testify for the defense, but instead defense counsel reached an independent decision not to call him as a witness. Moreover, the informant, after the United States Attorney's statement, stated that he would be happy to help the defense, if he could. We find nothing in the record to indicate that the defendant was coerced or intimidated by the prosecutor's remarks. This Court can perceive no prejudice resulting to the defendant. Cf. United States v. Reed, 446 F.2d 1226 (8th Cir. 1971); Torralvo v. United States, 481 F.2d 1397 (2nd Cir. 1973) affirming conviction without opinion.
The defendant in his brief states that under the circumstances surrounding the prospective testimony of the informant and the failure of the informant to testify, he was, in the least, entitled to a missing witness instruction to the jury which the Court declined to give. The Court properly declined to give a missing witness instruction on the ground that the informant was equally available and accessible to both the government and the defense, thus, obviating the necessity for a missing witness instruction.
The missing witness instruction is required only if the Court determines that a witness is in fact more accessible to one side than to the other. United States v. Burgess, 142 U.S. App. D.C. 198, 440 F.2d 226 (D.C.Cir. 1970); United States v. Pugh, 141 U.S.App.D.C. 68, 436 F.2d 222 (1970); United States v. DeLutro, 435 F.2d 255 (2nd Cir. 1970). The record in this case is clear that the informant was equally available and physically accessible to both the defense and to the prosecution. The Court gave defense counsel an opportunity to talk with the informant for the purpose of determining whether the defense would call him as a witness for the defense. As indicated, the defense opted not to call the informant as a witness. Accordingly, a missing witness instruction would have been inappropriate. See United States v. Grizaffi, 471 F.2d 69 (7th Cir. 1972); Yumich v. Cotter, 452 F.2d 59 (7th Cir. 1971).
2. Did the trial judge err in permitting the government to cross-examine the defendant regarding a prior conviction?
No. During cross-examination of the defendant, the United States Attorney, as side bar, informed the Court that he proposed to cross-examine the defendant with respect to a prior conviction for a felony. The matter that the prosecutor made reference to was a marijuana conviction in 1971 in the state court of Pennsylvania. Defense counsel at this point interposed an objection asking the Court to bar cross-examination as to prior conviction for two reasons: (1) its prejudicial value far outweighed its probative value; and (2) when the conviction was entered possession of marijuana under the law of Pennsylvania was a felony, but under the new drug act in Pennsylvania simple possession of marijuana is only a misdemeanor. The Court ruled that it would permit the government to use the prior conviction for the purpose of impeaching the credibility of the defendant and that a cautionary instruction regarding the use of prior conviction evidence would be given to the jury. The prosecuting attorney then asked the following question:
Mr. Closson, will you tell the Court and jury whether it would be accurate to say that on October 14, 1971 there was a judgment of sentence upon you in which you were given three years' probation for felonious possession of narcotic drugs?
The defendant in this post-trial motion now argues that the Court abused its discretion by allowing the conviction to be proved because of its prejudicial effect which was magnified since the prior conviction was for a drug offense.
The rule has long been established in this Circuit that a defendant who takes the stand may be cross-examined concerning a felony for the purpose of impeaching his credibility. United States v. Greeley, 471 F.2d 25 (3rd Cir. 1972); United States v. Gray, 468 F.2d 257 (3rd Cir. 1972); United States v. Mitchell, 427 F.2d 644 (3rd Cir. 1970). Moreover, in both Greely and Gray, the Circuit Court favorably cited Rule 609 of the Proposed Rules of Evidence for United States Courts and Magistrates, which rule as presently revised by the Subcommittee on Criminal Justice of the House Judiciary Committee provides:
In this case the conviction for possession of marijuana was a felony and was punishable by imprisonment in excess of one year at the time the defendant was convicted. Consequently, the cross-examination as to such a conviction was not improper. Moreover, this Court was and is of the opinion that the probative value of the prior conviction substantially outweighed the danger of unfair prejudice especially in light of the defendant's own testimony ...