UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: April 3, 1973.
GOVERNMENT OF THE VIRGIN ISLANDS
VALDEMAR HENDRICKS, APPELLANT
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX.
Van Dusen, Rosenn and Hunter, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
Defendant Hendricks was convicted of both of two counts of selling heroin in violation of 19 V.I.C. § 604(a) and was sentenced to ten-to-fifteen years on each count, to be served consecutively. He asserts here that the district court erred in regard to jury selection, jury instructions, and sentencing. We affirm.
The circumstances of the two sales are essentially the same. The police employed one Carlos Encarnacion to purchase the drugs. According to the testimony of the police and Encarnacion, on October 14, 1971, and again on October 19, 1971, the police searched Encarnacion, gave him money, and told him to buy drugs from defendant. Encarnacion sought out defendant and, as he stated, purchased heroin from him. Then Encarnacion returned to the police, who searched him and found in his possession heroin but no money. On both occasions the police officers had trailed Encarnacion. On October 14 they witnessed an exchange between Encarnacion and defendant. On October 19, however, they saw only that Encarnacion and defendant entered an apartment house together; the police officers did not observe the alleged sale itself.
Encarnacion was similarly employed to obtain evidence against a number of other suspected drug pushers. Four of these individuals were brought to trial before defendant Hendricks was, and, as a result, the jury array from which defendant's jury was selected contained jurors who had sat on some of such earlier cases and had heard Encarnacion testify during such cases. Defendant challenged the entire array,*fn1 and, after that challenge was rejected, requested that the district court ask certain questions designed to elicit whether jurors who had sat on such earlier cases had formed an impression about the credibility of Encarnacion or of the police officers involved in defendant's case.*fn2 The district court declined to ask the requested questions, but did determine which jurors had sat on such earlier cases and did inquire of these persons whether they were able to confine themselves solely to the evidence which would be presented.*fn3 The district court denied defendant's motion to strike such jurors for cause.*fn4
While we acknowledge that the credibility of Encarnacion's testimony was crucial to this case, we adhere to the view that the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror. See Government of the Virgin Islands v. Williams, 476 F.2d 771 (3d Cir. 1973). We note that of the nine jurors who had sat on such earlier cases, eight had sat on one such case and one had sat on two such cases. Consequently, we reject defendant's claim that the district court erred in the above-mentioned rulings.
Defendant requested two instructions involving the credibility of Encarnacion, one relating to his being a drug addict*fn5 and the other to his being paid by the Government.*fn6 The district court refused to give the former on the ground that there was no evidence in the record to show that Encarnacion was an addict as of the time of the trial, February 15, 1972. The district court did give the latter, but with significant modification.*fn7 Defendant took exception to the refusal to give the proffered instruction on addicts,*fn8 but he did not make any objection to the instructions eventually given by the court.*fn9
It is undisputed that, inter alia, Encarnacion was an addict at the time he allegedly bought drugs from defendant,*fn10 that he was to be paid $2,000 by the Government for obtaining evidence and then testifying against from 10 to 20 persons, that he had been convicted of forgery and was still subject to sentencing for this conviction, and that he had pending against him a number of felony charges. The questions before this court are whether, under these circumstances, the district court should have given defendant's instruction that "a drug addict is inherently a perjurer" and, if not, whether the district court's instructions were plain error, see F.R. Crim. P. 30.
Defendant took this "inherently a perjurer" language from Fletcher v. United States, 81 U.S. App. D.C. 306, 158 F.2d 321, 322 (1946). While the court in Fletcher was concerned with the reliability of an addict-informer, the court's decision was to allow such testimony but to require that a cautionary instruction be given. To suggest that the cautionary instruction should contain the words "inherently a perjurer" is to misread Fletcher, for such an instruction would in effect make the testimony incompetent altogether. The district court was correct in not giving the proposed instruction.
One recent case has held outright that it is plain error for a district court not to instruct the jury sua sponte about the unreliability of an addict-informer's testimony when that testimony is corroborated only in minor details.*fn11 United States v. Griffin, 382 F.2d 823 (6th Cir. 1967). Griffin, however, is easily distinguishable on its facts. In Griffin there were two co-defendants, Griffin and a woman. The woman made two sales to an addict-informer; Griffin was not present at the first sale and was only seen in the vicinity of the second. While there was corroboration by police officers as to the woman's guilt, only the word of the addict-informer connected Griffin with the crimes. In the present case, on the other hand, police witnessed one transaction and provided significant corroboration for Encarnacion's testimony about the other transaction, even though they did not witness the sale itself. Moreover, the district court did instruct the jury that because Encarnacion was an informer his testimony had to "be scrutinized with care and received with caution." In these circumstances, we decline to hold that there was plain error.
We do not, however, mean to suggest that, if it is requested, a special cautionary instruction is not proper when a witness is in the Government's pay and either is an addict at the time of trial or was an addict at the time of the events concerning which testimony has been given. Similar scrutiny must be used in weighing the testimony of a present or former addict who recognizes, or may recognize, the possibility of being rewarded by the Government. Examples of possible rewards are the dropping of charges presently pending against the witness and the recommending of a lighter sentence for a crime of which the witness has already been convicted. An instruction would be appropriate whether or not it is shown that the Government intends to reward the witness. It would be especially useful when the testimony of such a witness is uncorroborated as to a material fact.
While the precise formulation of the instruction is up to the trial court,*fn12 it should set out the rationale for examining the testimony of such a witness with special caution. As United States v. Kinnard, 150 U.S. App. D.C. 386, 465 F.2d 566, 570-71 (1972), points out, an addict-informer faces the immediate threat of being jailed and thereby kept from access to the drugs to which he is addicted, as well as the prospect of a long term prison sentence and possible retaliation from various persons in the drug trade. These factors substantially increase the danger that the addict-informer may color his testimony so as to place guilt on the defendant.
Defendant Hendricks' final contention is that the sentence he received -- two consecutive terms of ten-to-fifteen years -- was excessive. Although this is a very long sentence, it is within the statutory limits, and, therefore, not subject to review here. Government of Virgin Islands v. Venzen, 424 F.2d 521 (3d Cir. 1970). See Gore v. United States, 357 U.S. 386, 393, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958); United States v. Frank, 245 F.2d 284, 288 (3d Cir. 1957). Cf. generally ABA Project on Minimum Standards for Criminal Justice (Approved 1968), Standards Relating to Appellate Review of Sentences, including Appendix 3, pp. 86-90. We note, however, that defendant may apply under F.R. Crim. P. 35 for a reduction of sentence after the issuance of this court's mandate.
The March 10, 1972, judgment and commitment will be affirmed.