decided as amended march 25 1981.: March 16, 1981.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 80-00098)
Before Gibbons and Weis, Circuit Judges, and Whipple*fn*, District Judge.
William Curtis, III appeals from a judgment of sentence following a jury verdict finding him guilty on three counts of illegally distributing methamphetamine, 21 U.S.C. § 841(a)(1) (1976), and one count of illegal possession of a firearm during the commission of a felony. 18 U.S.C. § 924(c) (2) (1976). We reverse and remand for a new trial.
Like most controlled substance cases that we see, the government's case consisted of the testimony of an informant, an undercover Drug Enforcement Administration Agent, and purchases made with government funds. Curtis stipulated that each of the drug transactions occurred, and that during the last one he was carrying a weapon. As a witness on his own behalf Curtis testified that the transactions were the result of solicitations, demands, inducements and threats by the government, amounting to entrapment. For present purposes it suffices to say that determination of the entrapment question, the sole issue in the case, turned on whether the jury believed the informant and the undercover agent, or Curtis.
The government was informed in the defendant's opening statement that Curtis admitted the transactions and raised an entrapment defense. Before the end of the government's case, and thus well before Curtis testified, the court granted leave to call four defense witnesses out of turn. All four were character witnesses, and each was asked on direct examination what Curtis' reputation as a peaceful law abiding citizen was in the community of which the witness was a member. Each gave the expected answer that his reputation was "excellent" or "terrific." On direct examination none of the character witnesses was asked his own opinion of any facet of Curtis' character, and none volunteered any such opinion. The government's cross examination at that point in the trial gives rise to one of several issues raised on appeal.
The first character witness was Thomas McNulty, business manager of the Plumbers' Union local of which Curtis is a member. On cross examination he was asked:
Q. Mr. McNulty, do you know anything about methamphetamine?
Q. Do you know that it is illegal?
Q. What would you say if you were told that Mr. Curtis admits in this court of law that he did perform the acts that he was charged with but that he is saying that someone put the idea in his mind? What would you say to that?
A. I would be very, very surprised.
This question could only refer to defense counsel's disclosure in his opening to the jury that the defense was relying on entrapment. It went beyond the scope of direct examination, since it asked, rather inartfully, for the witness' opinion either on the merits of the defense, or, what was more likely intended, on the effect of the defense on defendant's character. No objection was made concerning the scope of cross examination. The question was, however, an incomplete and unfair characterization of the defense position, since it did not describe all the elements of the entrapment defense. Defense counsel attempted to bring the inquiry back within the scope of direct examination, and within the boundaries of the entrapment defense, asking:
Q. Is your surprise that he is involved in this activity?
Q. OK, and if in fact people in the community told you that he was forced to do it, would that be consistent
The Court: Wait a minute, wait a minute.
The question was cut short and disallowed. Defense counsel tried again:
Q. If, for example, people in the community had told you that he was involved in drugs per se, that would shock you; is that correct?
Q. Now, if people in the community told you that he was involved in drugs because someone induced him to do it, would you then change your attitude?
An objection to the last question was sustained. Thus the net effect of the government's cross examination and the trial court's rulings on redirect, was that when a witness testified on direct examination concerning good reputation in the community, the government was permitted to ask how the witness' own opinion of defendant's character would be affected by an admission of participation in the charged transactions, while the defendant was precluded from testing that opinion by putting the entrapment elements into the hypothetical which was its basis.
The second character witness was Michael Clarke, a high school teacher. On cross examination he was asked:
Q. And is there a drug problem in your high school?
The question was objected to as outside the scope of direct, but the court permitted it because "It has to do with his opinion, what it is based upon." This ruling was incorrect, since Clarke had not testified as to his opinion. When he acknowledged his high school was probably like every other with respect to drugs, the cross examination continued:
Q. Is there a problem with methamphetamine?
A. Not as much as other drugs. All I hear is hearsay. I am not in the discipline.
Q. And as a teacher at that high school, I assume you are very much against drugs among your students?
Q. And you are very much against the use of methamphetamine?
Thus over objection, and in the guise of testing an opinion the witness never expressed, the government was permitted to elicit the information that in the high school in the community in which Curtis lived, there was a drug problem, and that the teacher witness was very much against drug use. It should be noted that he had not testified about Curtis' reputation in the High School community, but in the community at large. The cross examination continued:
Q. And you have already heard the questioning that I placed to the other witness, so I make the same question to you, Mr. Clark (sic): Would it surprise you if you knew that this defendant has walked into this court and has essentially admitted that all the three sales occurred including a pound of methamphetamine? Would that change your testimony?
MR. MOSER: Your Honor, I would object and ask him not to answer the question. The issue here is not his opinion; the issue here is what he hears from people in the community. And if I had asked him what is his opinion of Mr. Curtis, the U.S. Attorney would object.
THE COURT: Well, the specific evidence of specific instances that are relevant can be considered by a witness and he can
MR. MOSER: Judge, most respectfully, he is only testifying as to what he is ...