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July 25, 1980


The opinion of the court was delivered by: BECHTLE


By Order dated May 27, 1980, this Court denied the post-trial motions of defendant William Curtis, III ("Curtis"), for a new trial or, in the alternative, for judgment of acquittal. This Memorandum Opinion serves to set forth the Court's reasoning and authority for that denial.

 This criminal action stems from an indictment charging the defendant with three counts of illegally distributing methamphetamine, 21 U.S.C. § 841(a), and a fourth count of carrying a weapon during the commission of a drug offense, 18 U.S.C. § 924(c)(2). Following a three-day trial, Curtis was convicted by a jury on all four counts. The principle defense offered by Curtis at the time of trial was that of entrapment. The Government proved its case by offering the testimony of an informant, Daniel Davis ("Davis"), who had purchased drugs from Curtis on two separate occasions, and an undercover Drug Enforcement Administration ("DEA") agent who testified to receiving drugs from Curtis in the last charged transaction. All three transactions took place between September of 1979 and February of 1980 at an office building located in Jenkintown, Pennsylvania. The first two transactions involved quantities totalling approximately one ounce of methamphetamine and the last transaction, at which time Curtis was arrested by DEA agents, involved the distribution of approximately one pound of methamphetamine with a value of over $ 10,000.

 After raising entrapment as his major defense, Curtis stipulated: (1) to each of the drug distributions on the dates alleged; (2) that the substances were methamphetamine, an illegal non-narcotic; and, (3) that he was carrying a weapon, without a permit, that was loaded and operable during the last drug transaction. Curtis testified in his own behalf and offered the testimony of several character witnesses.

 In his post-trial motions, Curtis raises four points. First, he claims that the Court erred by not limiting the Government in its cross-examination of the defendant's character witnesses under Fed.R.Evid. 405 *fn1" and 608 *fn2" The defendant objects to the questions posed by the Government as to whether the character witnesses had changed their "opinion" of Curtis after learning that he had admitted at trial that the drug transactions had in fact taken place and that he had been carrying a weapon at the time. *fn3" Curtis claims that these questions were intended to inquire of the witnesses' personal opinions of Curtis, which was impermissible because the witnesses were only questioned on direct examination as to their opinion of the character of Curtis based upon what others in the community thought to be his character, and not as to their individual personal opinion of Curtis. The Court finds that the Government's cross-examination of the defendant's character witnesses was permissible as being more probative than prejudicial and within the scope of direct examination. The questions posed by the Government were challenging the credibility and reliability of the opinions of the character witnesses. The challenge went not to their personal opinions of Curtis, but to their opinions of what others in the community thought to be the character of the defendant and whether they had knowledge that those persons knew that Curtis had admitted that he had distributed drugs and carried an illegal firearm at the time. This area of inquiry is permitted under the Federal Rules of Evidence. As the United States Supreme Court stated in Michelson v. U. S., 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948):


The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.

 335 U.S. at 479, 69 S. Ct. at 220 (footnotes omitted). See also 2 Weinstein, Evidence P 405(03) at pp. 405-21-30 (1979).

 The Government, in the within case, attempted and intended to accomplish exactly what the Michelson case allows, even though here, unlike Michelson, the factual events about which questions were posed related to knowledge of the facts surrounding the very charges for which the defendant was on trial. Nevertheless, the purpose and probative value of the questioning was the same as in Michelson that being to assess the character witnesses' opinion of the character traits of the defendant and was not a "random shot" or a "groundless question" intended to inject unwarranted innuendo to the jury. 335 U.S. at 472 n.3, 481, 69 S. Ct. at 217 n.3, 221. The Government was not questioning the witnesses concerning the arrest and indictment for which Curtis was then on trial. See U. S. v. Lewis, 157 U.S. App. D.C. 43, 482 F.2d 632, 640-641 (D.C.Cir.1973). Rather, the questions went to factual issues concerning the distribution of drugs and the possession of a firearm that Curtis had stipulated to at the beginning of trial in conjunction with his defense of entrapment. Curtis was denying he possessed the guilty mind to commit the acts, but he was admitting the occurrence of the very factual acts for which he was on trial. Placed in that unique posture, the Court finds that, in this case, the questioning was permissible and probative of the character traits of Curtis allegedly known in the community at the time of trial for which the character witnesses were being challenged. See also N.T. 4-25 (Court's charge concerning character testimony); N.T. 2-2 (Court's instructions to the jury prior to testimony of character witnesses); N.T. 4-4, 11 to 13 (charge of Court concerning elements of entrapment defense and defendant's admission of factual events).

 Second, Curtis objects to the following comment by the Government in its rebuttal argument:


Well, ladies and gentlemen of the jury, you remember the direct examination of William Curtis and you remember the cross-examination of William Curtis and there was just one question that was asked of Mr. Curtis.


And by that I ask the Court's leave to argue this, Your Honor.


And that is, why didn't you tell the story to anyone before?

 N.T. 3-47.

 Curtis claims that the comment by the Government violates the rule of U. S. v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), prohibiting negative inferential comments or questions by the prosecution as to a defendant's post-arrest silence after being given and exercising his Miranda rights. The standard, as set forth by the Supreme Court in Doyle, is that a negative inferential comment on the defendant's post-arrest silence would be:


fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

 426 U.S. at 618, 96 S. Ct. at 2245.

 Therefore, the first question that the Court must ask under Doyle is whether the comment concerned Curtis' post-arrest silence or his pre-arrest silence. The Supreme Court has recently held that the Doyle decision is limited to inferences concerning post-arrest and not pre-arrest silence, and that comments on the latter were permissible and not violative of the Fifth Amendment right to silence. See Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). See also U. S. v. Agee, 597 F.2d 350, 356 n.19 (3d Cir. 1979) (en banc); U. S. v. Cianciulli, 482 F. Supp. 585, 612 (E.D.Pa.1979), aff'd, 624 F.2d 1091 (3d Cir., 1980).

 The remark in issue here was, "(w)hy didn't you (Curtis) tell the story to anyone before?" N.T. 3-47. The Court finds that the remark is ambiguous and, therefore, could have reasonably been understood by the jury to mean why did the defendant not tell anyone, including the police, friends or his family, prior to his arrest, about the alleged frame-up he was being subjected to by the Government's informant (Davis) over the course of the entrapment period. This resultant ambiguity surrounding the Government's rebuttal comment only serves to dissipate any prejudicial effect the remark might have occasioned in the minds of the jurors. See U. S. v. Agee, supra, 597 F.2d at 359.

 If any prejudicial effect did result, it was, in any event, effectively negated by the Court's prompt curative instruction given to the jury at the request of defense counsel immediately following the Government's comment. *fn4" In Doyle, the trial court did not make such prompt, extensive curative instructions to the jury. Finally, in Doyle, the comments by the Government found to be prohibited were extensive and repeatedly asserted by the prosecution, only serving to reinforce the finding that the remarks were both intentional and prejudicial, thereby rising to the level of a constitutional violation. Doyle, supra, 426 U.S. 613-614, 96 S. Ct. 2242, 2243. See U. S. v. Agee, supra, 597 F.2d at 358 n.26. Here, the comments were brief, isolated in context and ambiguous; and, in light of the Court's prompt and extensive curative instructions, it can be easily said that all of these factors served to effectively neutralize any possibility of any prejudicial effect on the jury. See U. S. v. Agee, supra, 597 F.2d at 358, 359 n.30.

 For the above reasons, the Court finds that the rebuttal remarks of the Government were neither intended to be, nor did they have the effect of being, an impermissible inferential comment on Curtis' post-arrest silence of the type prohibited by the Doyle and Hale decisions.

 Third, Curtis contends that the Court erred in responding to two questions posed by the jury during the course of their deliberations. The questions were:


And the note reads: "Could the defense have recalled Davis on Wednesday?" That's the first question.


The second question is: "Or could the defense, when Davis was dismissed, have made a request to have Davis available for later questioning?"

 N.T. 4-48. After soliciting suggestions from counsel, the Court responded to the jury in open court:


Now, let me discuss the first question first: "Could the defense have recalled Davis on Wednesday?"


The answer to that is a relatively simple answer, but I want to make sure we understand the word "recall."


If you mean "recall after he left," bring him back, the answer would be "Yes."


Actually, the defendant didn't put Davis on as his witness. Usually when a person puts a witness on, then they put him back on again and it is recalling the witness. So technically speaking, Mr. Curtis couldn't recall Davis because he never called him in the first place.


But if we change that word from "recall" to "call," let me read it that way:


"Could the defense have called Davis on Wednesday or brought him back to court or had him subpoenaed for a question?"


The answer is: Yes, the defendant would have the right to do that. The Government would also have the right to do that, to have Davis brought back. So either party would. All right?


Now, the second question is:


"Or could the defense, when Davis was dismissed, have made a request to have Davis available for later questioning?"


Well, the answer to that is: Yes. The Government could also have done that. Or a witness can be subpoenaed, what we say, issue a subpoena for a witness, and it is an order for him to appear in court. So there are a variety of ways of having witnesses appear in court. They can do so willingly. They can be told by the Court to come back. Or they can be subpoenaed.


So that's a discussion of the questions, and in summary, then, what the answer is, the answer is: "Yes, he could have been called by the Government or by the defense after he left the courthouse."


That's the extent of the answer. And does that answer your question?


THE FOREMAN: Thank you, Your Honor. Yes.

 N.T. 4-48-49.

 Curtis objects that the clarifying remarks of the Court should have included instructions that the defendant had no duty to call any witnesses and that the burden of proof and production remains with the Government to show guilt beyond a reasonable doubt.

 As the Court stated to defense counsel after the above clarifying response (N.T. 4-49-50), the Court had already in its charge to the jury fully and clearly instructed that the defendant has no duty or burden to call any witnesses at all, and that the burden of proof and production always remains with the Government. *fn5"

  The Court finds its response to the two questions posed by the jury during deliberations to be legally proper and comprehensive in light of its prior instructions, which the Court believes the jury fully understood and could continue to follow during the remainder of their deliberations without further comment from the Court.

 Another claim raised by Curtis concerns the Government's characterization during its rebuttal argument of Curtis as a "liar" based on his trial testimony (N.T. 3-50). The Court does not condone the characterization, but it does not find it was so prejudicial to Curtis as to violate his right to a fair trial. The phrase was intended to be a persuasive point of argument to the jury by the Government that they should find the defendant's testimony not believable and to be contrary to the weight of the evidence presented by the Government chiefly through the testimony of its informant witness. See U. S. v. Siegel, 587 F.2d 721, 727 (5th Cir. 1979). The Government's use of the word "liar" was not the first use or variation of that word made during the course of the trial. Defense counsel stated to the jury during his closing argument, immediately prior to the Government's rebuttal, that:


He hasn't lied to this Court. He has been truthful through the entire case. If he was going to lie he should have denied even being there. I mean, if you are going to give the jury and the judge a bunch of bull, you might as well go the other way. But he doesn't do that. He tells you what happened. And it is a pathetic story and it might even be a little bizarre. But you know, ladies and gentlemen, unfortunately sometimes the truth is bizarre and it is pathetic. And in this case I submit that's what it is.

 N.T. 3-19 (emphasis supplied). See also N.T. 3-15, 16, 30 (statements by defense counsel that the Government's informant had "lied" and his testimony was a "bunch of baloney").

 Therefore, the Government's remark in its rebuttal argument was only a reiteration and recharacterization of the terminology that defense counsel had previously selected to describe the testimony of the defendant and the chief Government witness.

 Finally, whatever prejudicial inferences might have been drawn by the Government's remark, the Court's instructions to the jury immediately following the Government's remarks served to cure any prejudicial effect the comment may have had:


It is not my role to assess all of that testimony and suggest to you this or that or remind you of this fact or that fact. That's your job. That's your job and it is counsel's job in their arguments which are a very important part of the case to try to remind you of certain facts that they think are important and you may think they are important. Maybe you won't think they are important, but it is up to you to decide what those facts are. It is not my job to review all of that evidence and I don't do that.

 N.T. 4-5, 6.


It is the obligation of attorneys to represent their clients with vigor and with the conviction that (what) they are doing is correct and proper.

 N.T. 4-18.


You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief.


Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more than two persons who perceive or witness an accident or a transaction or event oftentimes see or hear it differently.

 N.T. 4-19.


The testimony of a witness may be discredited or impeached by contradictory evidence, in other words, by evidence that at some other time the witness has said or done something or has failed to say or do something that is inconsistent with his testimony here before you in this courtroom. If you believe a witness has been impeached in that manner and thus discredited, it is your exclusive province as jurors to give the testimony of that witness the weight if any that you think it deserves. And as I mentioned earlier, if a witness is shown knowingly to have testified falsely concerning any material matter you have a right to distrust that witness' testimony in other particulars and you may reject all the testimony or accept all or part of that testimony as you determine it deserves.

 N.T. 4-21. See also U. S. v. Rodriguez, 585 F.2d 1234, 1244 (5th Cir. 1978); U. S. v. Rich, 580 F.2d 929, 936 (9th Cir. 1978); U. S. v. Morris, 568 F.2d 396, 402-403 (5th Cir. 1978); U. S. v. Austin, 548 F.2d 759, 760 (8th Cir. 1977); U. S. v. Erb, 543 F.2d 438, 442 (2d Cir. 1976); U. S. v. Benson, 487 F.2d 978, 982 (3d Cir. 1973).

 The final claim raised by the defendant in his post-trial motions is equally without merit that claim being that the verdict was contrary to the weight of the evidence. The Government presented two major witnesses who testified that the illegal drug transactions were willfully and voluntarily entered into by Curtis after he was approached by the Government's informant for the purpose of purchasing drugs. The transactions took place and money was exchanged and, during the last transaction, Curtis was arrested by DEA agents and found to be carrying a firearm. The conflicting reasons as to why the transactions occurred ultimately were bottomed on a question of the credibility of the testimony of Curtis versus the Government's informant. This issue was properly presented to the jury, whose verdict reflects their finding, and which the Court finds to be supported by the evidence presented at trial.

 This Memorandum Opinion is in support of the Court's Order of May 27, 1980.

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