Nattress and Lanciano on direct examination was not error and did not prejudice defendant.
Next, defendant contends I erred in allowing William Nattress to testify on re-direct examination as to a threat defendant allegedly made to him. Nattress initially stated he first was approached by DEA agents in March, 1980, who asked him about the drug selling activity of Richard Lehr. At that time, Nattress denied having any knowledge regarding drugs and told the agents that Richard Lehr was a horse trainer. On cross examination at trial, Nattress testified he had lied to the agents regarding his knowledge of Richard Lehr's involvement in distributing drugs. N.T. 2.66. Later on cross-examination, Nattress testified that in October or November, 1980, he again spoke with the DEA agents. It was at this time Nattress began cooperating with the Government. Over defendant's objection, Nattress on re-direct examination testified that he began his cooperating with the Government because of a threat he received from Steven Lehr. Apparently when at the wedding of a mutual friend, Nattress and defendant drove to a bar and there defendant questioned him regarding his contacts with DEA agents. After Nattress tried to reassure defendant that he would not reveal his knowledge of the drug selling operation to the agents, defendant shook his finger at Nattress saying that "dead men tell no tales". Ruling that the probative value of this evidence was not substantially outweighed by its prejudicial nature, I admitted the testimony to rebut the inference raised on cross-examination that because Nattress had lied to the DEA agents in March, 1980, he also lied to them in November, 1980, and had lied at trial, and, in addition, to allow the Government to elicit the circumstances of Nattress' cooperation. There was no error in my ruling.
While courts have stated that death-threat testimony should be received only when clearly needed by the prosecution and after balancing its prejudicial nature with its probative value pursuant to Federal Rule of Evidence 403, such testimony is normally admitted "where cross-examination has been used to elicit an incomplete picture which gives a distorted impression of a witness' credibility . . .". United States v. Check, 582 F.2d 668, 685 (2d Cir. 1978), quoting United States v. Panebianco, 543 F.2d 447, 455 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 51 L. Ed. 2d 553, 97 S. Ct. 1128 (1977). See United States v. DeLillo, 620 F.2d 939 (2d Cir.), cert. denied, 449 U.S. 835, 66 L. Ed. 2d 41, 101 S. Ct. 107 (1980); United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989, 36 L. Ed. 2d 188, 93 S. Ct. 1501 (1973). Under those circumstances, the prosecution should be given the opportunity to set the record straight on re-direct examination with death threat testimony.
United States v. DeLillo, supra; United States v. Check, supra; United States v. Panebianco, supra; United States v. Cirillo, supra.
Here, the cross-examination of Nattress regarding his contacts with DEA agents left the jury with the unrebutted contention that because Nattress had lied in March, he lied on subsequent occasions and at trial. The Government, therefore, was entitled to rebut this inference on redirect examination by allowing Nattress to explain why he changed his story. In fact, on re-direct examination Nattress testified that after he was threatened, he feared for his life, and decided to cooperate with the Government so everyone would be caught and he would not be killed. N.T. 2.90. Thus, the death threat testimony became extremely probative by virtue of defendant's cross examination of Nattress,
and its prejudicial effect did not substantially outweigh its probative value.
Finally, defendant claims I erred in refusing to allow Nattress to be cross-examined regarding an alleged beating his girl friend, Patty Richards, received from defendant's sister-in-law, Linda Lehr. Defendant contends this testimony was relevant to show bias by Nattress against Linda Lehr and her family, including defendant. I refused to allow this testimony into evidence on the theory that it was too remote to be probative of Nattress' alleged bias against the defendant.
Cross-examination of a witness is subject to the discretion of the trial judge so long as defendant's sixth amendment right to confrontation is not infringed. United States v. Tracey, 675 F.2d 433 (1st Cir. 1982); United States v. Crumley, 565 F.2d 945, 949 (5th Cir. 1978). Exclusion of evidence relevant to bias or motive to testify does not require reversal when the jury possesses "sufficient information to make a discriminating appraisal of the witness' possible motives for testifying falsely in favor of the government." United States v. James, 609 F.2d 36, 47 (2d Cir. 1979). See United States v. Lawson, 683 F.2d 688, 693 (2d Cir. 1982); United States v. Tracey, supra. While defendant in his cross-examination of a key government witness who is an informant must be given wide latitude, United States v. Uramoto, 638 F.2d 84, 86 (9th Cir. 1980), the trial judge, as with all evidence, first must determine whether the evidence is probative of bias, and if so, admit it only if its probative value is not substantially outweighed by its prejudicial effect.
United States v. Diecidue, 603 F.2d 535, 550 (5th Cir. 1979).
Here, defendant's proposed evidence of bias did not reach first base. The fact that Nattress' girlfriend was beaten up by Richard Lehr's wife had virtually no probative value as to Steven Lehr. Such a contention is too remote and attenuated. Certainly, defendant's evidence would be probative of bias if the witness was testifying against Linda Lehr, but to have allowed such evidence in Steven Lehr's trial would have diverted the jury's attention to a collateral matter that was completely unrelated to issues being tried. In his offer of proof, defendant argued that any bias against Linda Lehr would also be bias against Steven Lehr by virtue of the family relationship. That simply is not true. For example, in Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980), the Court of Appeals for the Ninth Circuit granted relator's petition for habeas corpus because the trial court in the underlying criminal case had refused to allow inquiry on cross-examination regarding possible bias and prejudice of a witness. Noting that the trial court cannot restrict cross-examination so as to infringe defendant's sixth amendment right to confrontation, the court opined that it would not be error for the trial court to exclude as collateral an inquiry attempting to show bias because a witness disliked a relative of the defendant for reasons unrelated to the case or the defendant. Id. at 531. This example of irrelevance is one step closer than the situation presented here. In this case, it was a friend of the witness who disliked a relative of defendant. Moreover, never once did defendant explain whether or how the alleged beating of Nattress's girlfriend either was connected to the drug selling conspiracy, to the defendant, or to the witness. Defendant's sole theory of relevance was based on the family connection between defendant and Linda Lehr. As previously explained, that fact standing alone was insufficient to show its relevance to Nattress' bias towards defendant, and thus, it was not error to exclude the testimony of the beating.
Court's Charge and Jury Deliberations
Defendant contends I erred in refusing certain of his requests for charge, in certain aspects of my charge, and in the manner in which I responded to a question submitted by the jury during its deliberations. All of defendant's contentions are meritless.
As to defendant's requests for charge, I have been directed to the proposed instructions
I refused, but not told how what I said or refused to say prejudiced defendant. Notwithstanding the deficiencies in defendant's presentation of these issues, "[a] party has no vested interest in any particular form of instruction; the language of the charge is for the trial court to determine." Olsen v. United States, 521 F. Supp. 59, 63 (E.D. Pa. 1981), aff'd mem., 688 F.2d 820 (3d Cir. 1982); Posttape Associates v. Eastman Kodak Co., 537 F.2d 751, 757 (3d Cir. 1976). When the charge is viewed in its entirety, if the jury has been fairly and adequately instructed, the requirements of the law have been satisfied. Olsen v. United States, supra; James v. Continental Insurance Co., 424 F.2d 1064, 1065 (3d Cir. 1970). Suffice it to say that my instructions regarding reasonable doubt and the law of conspiracy were correct and did not prejudice defendant.
As to the charge given, defendant first contends I erred in charging generally regarding the credibility of witnesses. Essentially, I told the jurors they could either disbelieve all of a witness' testimony if they found he lied once, or they could examine carefully the witness' entire testimony and choose what to believe and disbelieve. I further explained that the latter course seemed to be the more sensible of the two. Defendant has neither explained what I should have done differently nor how he was prejudiced by the instruction as given. My instruction correctly stated the law and did not force the jury to adopt one course over the other. Accordingly, there was no error.
Second, defendant argues I erred when, during my charge, I criticized the example used by defense counsel in his closing argument to explain reasonable doubt. Commenting on the reasonable doubt standard in relation to the testimony of William Nattress, counsel stated:
Now does William Nattress' testimony create a reasonable doubt as to his credibility? Because there is absolutely, positvely (sic) no corroboration of what Billy Nattress says relative to coke. There is none.
How about if you went to the doctor, your son, your daughter, you take him to the doctor, and when you take him to the doctors, the doctor examines him and say, "Well, I'm afraid we have to amputate his legs," your son's legs, and you say, "What's the problem?" And the doctor says, "Well, he's got Nattreitis," and you say, "What's that?" He say, "Well, if you believe everything William Nattress said then he must have it."