United States v. Darnell R. Kinnard, United States of America v. Mahlon Payne

465 F.2d 566

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 13, 1972
• Docket: 24859, 24860
• Status: Published

Opinions

PER CURIAM:

The court unanimously agrees to affirm the conviction of the appellant Kinnard. Chief Judge Bazelon and Circuit Judge Leventhal agree to reverse the conviction of appellant Payne. The rulings of the trial judge below precluded an inquiry into the general unreliability of addict-informers; restricted defense counsel’s efforts on cross-examination to develop extrinsic evidence concerning the informant’s addiction; and in practical effect, foreclosed a request from defense counsel for a special instruction on the credibility of addict-informers. In view of the fact that the informant’s testimony lacked corroboration on a material point, these rulings were prejudicial error. Circuit Judge Adams dissents from the reversal of Payne’s conviction.

BAZELON, Chief Judge:

In this case we are confronted with some of the disturbing consequences of the Government’s employment, as informers, of narcotics users, addicts and individuals accused of violating the narcotics laws. We do not dispute the Government’s right to use such informers to infiltrate the drug traffic in order to enforce these narcotics laws. But the facts of this ease do present us with the question of whether and how the testimony of these informers should be received.

I.

Appellants Kinnard and Payne were tried jointly for the crimes of possession, failure to pay tax, and the sale of heroin.¹ These charges arose out of a sale of the drug arranged by a government informer, Robert Roscoe Jr., to take place between Kinnard, Payne and a government narcotics agent. The pertinent facts of the case are gleaned from the trial transcript.

In late August or early September of 1969, Roscoe was in custody in the District of Columbia, charged with four counts of possession of narcotics, the sale of narcotics, and burglary. Roscoe was an admitted user of heroin, although whether this use amounted to addiction is a fact which remains in dispute.² In conversations with a government attorney, Roscoe indicated that he was interested in assisting the Bureau of Narcotics and Dangerous Drugs as an informer, and was told by the Bureau that any assistance he provided would be reported to the United States Attorney’s office, presumably to weigh in his favor. In point of fact, Roscoe was quickly released from custody. The charges against him were subsequently reduced to two misdemeanors to which he pleaded guilty and received two years’ probation. In the course of his work with the Bureau, Roscoe also received at least $200 and his family was relocated at the Government’s expense.

After his release, Roscoe met several times with Agents Cooper and Jackson from the Bureau of Narcotics. Roscoe mentioned the names Mahlon Payne and Darnell Kinnard as being two individuals involved in the drug trade in the District. Roscoe also apparently volunteered to set up a sale with these individuals.

Pursuant to this plan, Roscoe visited the appellant Mahlon Payne. Roscoe testified that he visited Payne on several occasions but arranged no sale.³ On the afternoon of October 13, 1969. Agent Cooper observed Roscoe enter Mahlon Payne’s apartment and emerge about forty-five minutes later. Roscoe reported that he could return that evening to make a purchase from Payne for a friend from North Carolina. Agent Jackson was to assume the role of that friend.

Jackson and Roscoe returned to Payne’s apartment that evening. They testified that Payne said he could obtain $400 worth of heroin, and that they should accompany him to make a telephone call. The three drove to a gas station where Payne made the call, and then drove to the parking lot of a shopping center and bowling alley. Agent Jackson testified that Payne left the ear and spoke with a man who had driven up in a Plymouth automobile, and whom Roscoe identified at the time as Darnell Kinnard.

When Payne returned to the car, the three drove to the parking lot of a carryout restaurant to await delivery of the heroin. Payne noticed several police cars in the area, so they left and crossed the street to the Shrimp Boat .Carryout, to wait. Agent Jackson testified that he presently saw the man identified as Kin-nard drive up to the first restaurant..

Payne motioned Kinnard over to the Shrimp Boat. Roscoe and Payne then got out of the car and spoke with Kin-nard. Agent Jackson observed Kinnard pass an envelope to Roscoe. Roscoe walked over to Jackson in the ear and handed him the envelope, which was introduced at trial as containing the narcotic heroin. Four hundred dollars passed from Agent Jackson to Payne to Kin-nard. Kinnard and Payne drove off in the Plymouth, and Jackson and Roscoe returned to the Bureau of Narcotics. The entire transaction was observed at some distance by Agent Cooper.

The defendants Kinnard and Payne did not take the stand to present a conflicting version of the facts of their encounters with Roscoe and Jackson. Instead, they sought through cross-examination to impeach the credibility of those who testified against them, and emphasized in their closing arguments the crucial role played by Roscoe in inducing their participation in the sale. Thus the thrust of their defense was to raise the question of entrapment. They requested, and were granted the customary instruction on an entrapment defense.⁴

In this appeal, appellants raise two issues of merit.⁵ First, during the cross-examination of Agent Jackson, defense counsel attempted to elicit the Agent’s opinion on the general reliability and truthfulness of narcotics addicts. The trial judge halted this inquiry and stated that, in reliance on Godfrey v. United States6 he would not give any special instructions on the unreliability of addicts. Defense counsel objected to the foreclosure of his inquiry and appellate counsel now claims that such an instruction should have been given.⁷

Second, during cross-examination of Roscoe, the defense sought to impeach his credibility by use of extrinsic evidence to prove the frequency of his drug use and the most recent occurrence of such use. The defense first requested that Roscoe bare his arms before the jury, and later suggested that an examination be conducted at Government expense by a dermatologist or other expert to ascertain these facts. Both requests were denied as raising collateral questions and are claimed as error on this appeal.

Judge Leventhal and I hold for appellants on both issues. When, as in this case, the Government relies on the testimony of an informer about whom there is suspicion of past or current narcotics addiction, the court must permit the defendant to develop extrinsic evidence to ascertain the informer’s status as an addict. If such status is determined, I would hold that the court must provide an explicit cautionary instruction on the unreliability of paid informers who are also drug addicts. In Judge Leventhal’s opinion, the court’s duty to issue such an instruction arises if the addict’s testimony is without corroboration in some significant aspect of the case, and there is a request from defense counsel.

We both agree that the availability of such an instruction is of vital necessity to preserve the rights of the defendant to cross-examination and to proper jury instructions. Application of this rule to the case before us requires reversal only of the appellant Payne’s conviction and a new trial for him.

II.

This decision is based on a history of judicial opinions which underscore the necessity of special cautionary instructions when paid informants testify for the Government in criminal cases. The principle which guides us is that enunciated by this court in Fletcher v. United States:

“Granting that the credibility of the testimony of a paid informer is for the jury to decide, it nevertheless follows that where the entire case depends upon his testimony, the jury should be instructed to scrutinize it closely for the purpose of determining whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness’s own interest. Here, admittedly, the usefulness of the witness — and for which he received payment from the agent — depended wholly upon his ability to make out a case. No other motive than his own advantage impelled him in all that he did.” 81 U.S.App.D.C. 306, 307, 158 F.2d 321, 322 (1946).

The court thus recognized that informers have a motive to lie, and that this danger creates the necessity for a special instruction on their unreliability.⁸

Other Circuits have approved Fletcher⁹ and we have held that when the instruction is requested, a failure to give it is reversible error unless the informer’s testimony is fully corroborated by other eyewitnesses.¹⁰ We have also urged trial courts to caution the jury about the unreliability of informant testimony even in the absence of a request.¹¹

These principles also govern cases involving addict-informers. We believe that a government informer’s addiction to narcotic drugs and his indictment for narcotics violations so increase the danger that he will color his testimony to place guilt on the defendant for his own benefit that this special danger should be recognized by courts and flagged by a special charge to the jury.

This belief is grounded in the hard realities of narcotics law enforcement. The use of informers is the primary police technique in this field¹² since addicts are the primary sources of information about the drug trade.¹³ Law enforcement officials are open about their use of informants,¹⁴ but there is less discussion about why their informers perform.

The addict’s habit makes him uniquely subject to constant surveillance- and susceptible to arrest — he is in a perpetual status of violating the law.¹⁵ . For the addict, arrest is harrassment of' a special sort, for he is forced to undergo the beginnings of withdrawal symptoms.¹⁶ At this stage, a bribe of heroin or the promise of immediate release and return to the habit seem irresistable.¹⁷ The deliberate harassment of addicts for information, through illegal searches, arrests and general intimidation by police and other officials, has been reported.¹⁸

Probably the most effective tools to induce information and cooperation from addicts under indictment are offers of leniency from the severe mandatory penalties of narcotics violations.¹⁹

Furthermore, the addict is only valuable if he produces fruitful tips or arranges sales which lead to prosecutions. The addict-turned-informer may therefore be desperate not only to produce results for the police, but also to avoid retribution from powerful figures in the drug trade.²⁰ This desperation may well lead him to lie, and increases the danger that he will misrepresent the involvement of those whom he fingers.²¹

Several courts have commented that these pressures make the testimony of an addict inherently unreliable.²² In Godfrey v. United States, the case on which the court below relied in denying a special instruction,²³ this court rejected the use. of an instruction aimed at discrediting the testimony of all drug addicts simply because of their addiction.²⁴ We are concerned with the unreliability of a far narrower category of witnesses — namely, narcotics addicts who are paid informers for the Government with criminal charges pending against - them. We must now recognize that there is a special danger that such government informers will lie.

III.

We are faced with the problem of how best to counteract this danger. The Government’s use of infiltrators and informers to combat the drug trade may well be a necessity, and is not unconstitutional per se.²⁵ It has been established that their testimony may be used to obtain convictions, even if it is uncorroborated.²⁶ But when they do testify at trial, the court must exercise special care to protect the defendant’s right to the “established safeguards of the Anglo-American legal system”²⁷— cross-examination and proper instructions to the jury.

Therefore, the majority of this court today holds that in order to save the defendant’s rights from “substantial prejudice,”²⁸ the trial court should be prepared to caution the jury to weigh with extreme caution the testimony of an addict-informer that is uncorroborated in some material respect, because of the possibility of the addict’s special interest and motive to fabricate.

The writer of this opinion would hold that this charge should be offered by the court upon its own motion. Since this court has decided that as a matter of accepted knowledge and experience there is an increased danger that addict-informers will lie, I believe there is no substitute for a charge to this effect from the trial judge. I am skeptical about the value of a debate between witnesses over the reliability of addict-informers — an alternative to which the concurring opinion refers. In my view, in cases where the credibility of an addict-informer is at issue, the judge should not rely on defense counsel to request so important an instruction.

The rule I propose is not directed at law enforcement practices, and involves no danger that a criminal will be set free because the constable stumbled. Rather, I am concerned that the innocent not be convicted because a lawyer stumbled.

Furthermore, it places no added burden on the court to protect the defendant’s right to this instruction. The instruction does not relate to a defendant’s particular “theory” of the case, nor is the trial judge unaware of the circumstances which necessitate it. When an addict-informer testifies against a defendant, the judge is put on notice that an instruction on credibility should be submitted to counsel as part of the routine set of instructions which the trial court offers.²⁹

Placing this duty on the court not only saves time-at trial, but also reduces the number of appeals premised on the failure of defense counsel to request such an instruction. The rights of, in most cases, indigent defendants, should not be jeopardized by the inexperience or oversights of their appointed counsel.³⁰

For these reasons, it seems an exceedingly small but important step for us to move from “hoping” that the trial court will be vigilant enough to provide such an instruction, especially in cases involving appointed counsel, to “requiring” him to do so.³¹

At a minimum, however, Judge Leven-thal and I agree that upon request this special instruction be available.

IV.

Applying this rule to this case, we are faced with the question of whether the appellants were entitled to the special instruction outlined above. This depends first on. whether the Government informer, Roscoe, was a narcotics addict —either at the time of trial or when he operated as a police informer.³² Both prosecution and defense counsel asked this question of Roscoe, and both his replies were in the negative. Upon further inquiry by the defense into the frequency of his narcotics use, Roscoe responded that he was only an occasional user.

Thereupon, the defense sought to ascertain the frequency of Roscoe’s drug usage by inquiry into extrinsic evidence —-namely, an examination of Roscoe’s arms for needle tracks. This inquiry was foreclosed by the trial court as raising issues collateral to the trial and ás improper impeachment.

Ordinarily, extrinsic evidence may not be used to impeach a witness’s general credibility or his specific testimony on a collateral matter.³³ But evidence which is probative of a special motive to lie or fabricate a case against a defendant is admissible because it bears directly on the issue of the defendant’s guilt.³⁴ This is a crucial distinction which the dissenting opinion seems to ignore. The discussion above focuses on the fact that the addict-turned-informer may have a special and very powerful motive to fabricate a case for his own benefit. His motive, and therefore his addiction, are highly material to his testimony at trial. The trial court below erred in refusing to allow the defendants in this case to attempt to prove the fact of Roscoe’s addiction with extrinsic evidence.

Furthermore, in light of the special cautionary instruction which was discussed above, the possible addiction of a government informer under indictment for narcotics violations must not remain in doubt. The defendant’s right to have the jury receive the special instruction is jeopardized if the informer can simply deny addiction. If the defense is bound by a witness’s denial, our recognition of the importance of the cautionary instruction is meaningless. Extrinsic evidence, if it exists, must be admitted to refute this denial.

It is well-recognized that the scope and extent of cross-examination and impeachment of a witness are generally within the discretion of a trial judge, who may exclude false insinuations and groundless accusations,³⁵ as well as evidence which needlessly debases the character of a witness and is merely cumulative and repetitive.³⁶ However, for the trial judge to foreclose entirely the inquiry into extrinsic evidence tending to prove the added motive of a government informer to lie is an erroneous application of these principles of law.³⁷ In order to protect against needless prejudice, the initial exploration of an informer’s status as an addict can easily be held outside the presence of the jury.

In the case before us, it was suggested by defense counsel that an expert be called to examine Roscoe’s arms for indications of extensive intravenous narcotics use, probative of addiction. This surely is one possible avenue of inquiry.³⁸ We cannot at this point formulate specific rules as to what will or will not be admissible to prove a current or former state of narcotics addiction. As attempts at proof are offered at trials in the future, both trial and appellate judges will have the opportunity to examine and test the problems of proving this issue of fact. We hold only that if evidence is presented by the defense that a paid government informer is also an addict and under indictment for narcotics violations,³⁹ this evidence must be presented to the jury along with the special cautionary instruction outlined above.

It is no excuse in this case that the inquiry suggested by defense counsel was cut off because he made no detailed proffer of what a dermatologist or other expert could have testified about Roscoe’s arms. Of course this groundwork should be accomplished before trial, but in this case, as is usual, we are dealing with appointed counsel who operates with severe constraints on both his time and his funds. In this context, defense counsel should have some leeway to explore this issue even at the time of trial if we are to make our adversary system work effectively for the defendant.⁴⁰ Once it is recognized that this issue is highly relevant when an addict-informer testifies, lawyers will learn to investigate before trial and will not unduly delay the criminal process.

Since appellants’ inquiry into Roseoe’s addiction was erroneously curtailed, we must assume for purposes of this appeal that Roscoe was an addict and that Kin-nard and Payne were entitled to the special cautionary instruction on addict-informers. The rulings of the trial judge which, in effect, precluded a request for such an instruction, thus constituted error.

V.

It remains to be decided whether appellants are entitled to reversal of their convictions and a new trial.⁴¹ This determination depends on whether the erroneous omission of the special instruction in fact worked “substantial prejudice”⁴² to either Kinnard or Payne. Failure to give the instruction is prejudicial when the addict-informer’s testimony contributes a material aspect of the prosecution’s case, and it is not fully corroborated by other witnesses.⁴³

Application of this test requires a careful examination of the record and ascertainment of the testimonial source of the incriminating evidence against both appellants. Neither disputes that the sale took place, or that they were participants in the transaction. Roscoe’s version of the sale itself was fully corroborated by Agent Jackson, who was present, and by Agent Cooper, who observed from a distance and identified both defendants.

Thus the only subject on which Roscoe furnished important and uncorroborated testimony was the nature of his negotiations with appellant Payne which preceded the sale itself. This subject is of critical importance in Payne’s case, since his entire defense was that of entrapment. The crucial point to be determined was whether Payne was induced to commit the crime, or whether he was predisposed to do so and was merely afforded the opportunity by the Government.⁴⁴

This issue was properly submitted to the jury since the Government was acting through Roscoe, its paid employee.⁴⁵ Roscoe’s testimony about the course of his negotiations with Payne would undoubtedly weigh heavily in the jury’s determination of Payne’s predisposition to sell heroin. Roscoe indicated that he exerted no pressure on Payne, and that he had made prior purchases from Payne.⁴⁶ On the other hand, he also testified that he had visited Payne several times without arranging a sale, which might indicate that Roscoe had to make some persuasive efforts.⁴⁷

Roscoe’s testimony does not make out the entire case for Payne’s predisposition to commit the crime. Agent Jackson testified about Payne’s willingness during their first meeting,⁴⁸ and also stated that Payne was willing to sell him some cocaine.⁴⁹ Both Agents testified that they had heard appellant’s name previously linked to the narcotics trade.⁵⁰ However, Roscoe’s testimony was far from negligible and the facts he stated were uncorroborated. Thus his credibility was a material factor in the jury’s resolution of the entrapment issue ⁵¹ and had the special instruction on addict-informers been given, the jury might have had a reasonable doubt⁵² that Payne was all that Roscoe portrayed him to be —a ready and willing seller.

In these circumstances, prejudice resulted from violations of Payne’s right to full cross-examination of Roscoe and to a properly instructed jury. The dissent asserts that sufficient impeaching evidence was brought out in Roscoe’s cross-examination to justify the trial judge’s calling a halt when he did. This argument sidesteps our holding that the status of addiction is evidence of unreliability, and that the Government’s right to use such informers as witnesses is offset by the defendant’s right to an instruction, if in any material respect the Government’s ease is established by the uncorroborated testimony of an addict, that his testimony must be viewed with caution because of the possibility of his special interest and motive to fabricate.

We need not be convinced that the jury’s verdict would have been different had the proper instruction been given.⁵³ Its absence worked substantial prejudice to Payne which must now be eradicated.

Kinnard was not similarly prejudiced, although he raised the entrapment defense as well. Roseoe’s credibility was not a material factor in the prosecution’s case against Kinnard, since the record indicates that Roscoe never met alone with Kinnard and had no opportunity to induce his cooperation.⁵⁴ Roscoe also did not testify about Kinnard’s willingness to sell narcotics, and his comment about making a prior purchase from Kinnard was of negligible importance in the context of the prosecution’s entire ease.⁵⁵

Accordingly, only Payne’s conviction must be reversed.

1 . 26 U.S.C. §§ 4704(a), 4705(a) and 21 U.S.C. § 174.

2 . See p. 573 infra.

3 . Transcript p. 238.

4 . The importance of the entrapment defense for appellants’ case is discussed at p. 576 infra.

5 . We have examined appellant Payne’s contentions that the entrapment defense was established in his case as a matter of law, and that no evidence proved he was a seller of the drug. Both issues were properly for the jury. Appellant Kinnard’s objection to the alleged presence of a part-time law student on the jury is without merit.

6 . 122 U.S.App.D.C. 285, 353 F.2d 456 (1965). For a discussion of this case, see p. 571 infra.

7 . See Transcript pp. 134-36. Although Rule 30, Fed.R.Crim.P. was not precisely complied with, we consider that the question of the necessity of a special instruction is properly before this court.

8 . This same analysis applies in eases involving other types of witnesses with strong motivation to lie, e. g. accomplices. United States v. Jones, 425 F.2d 1048 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); McMillen v. United States, 386 F.2d 29 (1st Cir.), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1967); Williamson v. United States, 332 F.2d 123 (5th Cir. 1964); Egan v. United States, 52 App.D.C. 384, 287 F. 958 (1923).

9 . Orebo v. United States, 293 F.2d 747, 750 (9th Cir. 1961); Joseph v. United States, 286 F.2d 468, 469 (5th Cir. 1960); United States v. Masino, 275 F.2d 129, 133 (2d Cir. 1960).

10 . Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233 (1964) cert. denied, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276 (1965). Other Circuits have ignored the requirement of a request when tlie informer’s testimony is crucial and uncorroborated. United States v. Griffin, 382 F.2d 823, 829 (6th Cir. 1967). Cf. McMillen v. United States, supra note 8, 386 F.2d 29; Williamson v. United States, supra note 8, 332 F.2d 123.

11 . Cratty v. United States, 82 U.S.App.D.C. 236, 163 F.2d 844 (1947).

12 . See A. Lindesmith, The Addict and the Law, at 35 (1965) [Hereinafter Lindesmith]; and J. Skolniclc, Justice Without Trial, at 120 (1966) [Hereinafter Skolnick]: “Without a network of informers — usually civilians, sometimes police— narcotics police cannot operate.”

13 . The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse, at 8 (1967) [hereinafter Task Force Report].

“In order to make their way into the tolls of the illicit traffic it is necessary for the police to use artificial leverage of some sort to obtain information and evidence and to secure reluctant cooperation from participants in the traffic. This entree into the illegal distribution system is usually provided initially by addicts acting as informers or ‘special employees.’ ” Lindesmith at 35.

14 . See e. g., M. Harney & J. Cross, The Informer in Law Enforcement (1960).

15 . “[T]he addict lives in almost perpetual violation of one or several criminal laws, and this gives him a special status not shared by other criminal offenders. Together with the fact that he must have continuous contact with other people in order to obtain drugs, it also gives him a special exposure to police action and arrest. . . .” Task Force Report at 10. See also Lindesmith at 46.

16 . “Among the symptoms of the withdrawal sickness, which reaches peak intensity in 24 to 48 hours, are muscle aches, cramps, and nausea.” Task Force Report at 2. These symptoms are so painful that they are used as a brutal technique to elicit information from addicts. Duster, Legislation of Morality — Law, Drugs, and Moral Judgment, at 21 (1970) [hereinafter Duster]. This treatment, though effective, is extremely detrimental to the addict’s health. Lindesmith at 38, 47.

17 . See Duster at 194-95. Drugs are turned over to addict-informers in a variety of ways. Lindesmith at 44, 47, 50-51.

18 . These arrests are made for information only, not with expectation of prosecution. Arthur D. Little, Inc., Drug Abuse and Law Enforcement, at 84 (1967). The most dramatic revelation of this practice was in the Daniel Committee Hearings in 1955: Illicit Narcotics Traffic: Hearings before the Subcommittee on Improvements in the Federal Criminal Code of the Committee on the Judiciary, U.S.Senate, 84th Cong., 1st sess. (1955-1956), also reported in Lindesmith, at 36-37. See also Task Force Report at 8, and Skolnick at 143-155.

19 . That addict-informers are given a “break”, such as reduction of charges, is freely admitted. Task Force Report at 8, 11. See also the discussion of the Daniel Committee investigations in Lindesmith, at 48-49, and Skolnick at 124-26. In the context of this case we do not need to reach the question of whether equal pressures are at work on addicts who are not under indictment.

20 . See Skolnick at 132-33.

21 . Lindesmith supports this conclusion at 45-50. The special dangers of addicts’ testimony in entrapment cases is noted in note 51 mfra.

22 . This court stated in Fletcher, supra, 81 U.S.App.D.C. at 307, 158 F.2d at 322:

“a drug addict is inherently a perjurer where his own interests are concerned, it is manifest either that some corroboration of his testimony should be required, or at least that it should be received with suspicion and acted upon with caution.”

The Sixth Circuit has stated in United States v. Griffin, 382 F.2d 823, 828 (1967) :

“Obviously, the testimony of [the addict-informer] was highly suspect, ...” citing Fletcher.

And Judge Miller of this Court, writing in dissent in Godfrey v. United States, 122 U.S.App.D.C. at 289, 353 F.2d at 460 stated:

“During the last fifty years I have had many opportunities to observe the way drug addicts testify in criminal cases about matters which concern their own interests. On the basis of that experience, I believe [the trial judge] was correct in saying they are inherently perjurers and I see no reason why a jury should not be told this fact of life.”

23 . The court instructed that:

“It is recognized that a drug addict is inherently a perjurer when his own interests are concerned and his testimony should be received with suspicion and acted upon with caution.” Id. at 287, 353 F.2d at 458.

24 . Several addicts had testified at the trial, one of whom was the defendant. The majority rejected the use of the instruction on the grounds that it was aimed directly at the defendant; that as a general comment on all addicts it was “obviously erroneous”; and that the phrase “it is recognized” made the instruction a too concrete and emphatic comment on the evidence.

United States v. Green, 327 F.2d 715 (7th Cir. 1964), which also rejected an instruction on addicts, is likewise distinguishable since in that case there was evidence that the witness was no longer an addict, and there was no indication that he was an informer.

25 . Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Courts have not assumed the task of adjudicating the propriety of law enforcement techniques, or regulating the “dirty business” of using guile, secret informers and infiltrators to obtain arrests. In On Lee, Mr. Justice Frankfurter wrote in dissent that a criminal prosecution should not be “a dirty game in which ‘the dirty business’ of criminals is outwitted by ‘the dirty business’ of law officers. . . . It is most uncritical to assume that unless the Government is allowed to practice ‘dirty business’ crime would become rampant or would go unpunished.” 343 U.S. at 758, 760, 72 S.Ct. at 974.

26 . Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

27 . Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966).

28 . Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Griffin, supra note 10, 382 F.2d at 829; Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943).

29 . At this point, the defendant could object to the court’s instruction if it in any way prejudiced his defense.

30 . This court has resolved this same dilemma in another context by urging trial judges to inquire sua sponte whether objections are going to be raised to identification procedures in criminal cases. Solomon v. United States, 133 U.S.App.D.C. 103, 408 F.2d 1306 (1969).

31 . As this court has already done for an identification instruction, Macklin v. United States, 133 U.S.App.D.C. 139, 409 F.2d 174 (1969); United States v. Shelvy, 148 U.S.App.D.C. 1, 458 F.2d 823 (1972).

32 . At both times the pressures on an addictturned-informer would enhance his motivation to lie.

33 . Tinker v. United States, 135 U.S.App.D.C. 125, 128 n. 16, 417 F.2d 542, 545 n. 16, cert. denied, 396 U.S. 864, 90 S.Ct. 141, 24 L.Ed.2d 118 (1969); Lee v. United States, 125 U.S.App.D.C. 126, 368 F.2d (1966); Ewing v. United States, supra note 28, 77 U.S.App.D.C. 14, 135 F.2d 633.

34 . Tinker v. United States, supra note 33, 135 U.S.App.D.C. at 127, 417 F.2d at 544; Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621 (1967); Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261 (1950). See also Salgado v. United States, 278 F.2d 830, 831 (1st Cir. 1960); United States v. Lester, 248 F.2d 329, 334 (2d Cir. 1957).

35 . See United States v. Pugh, 141 U.S.App.D.C. 68, 71, 436 F.2d 222, 225 (1970).

36 . This court held in Tinker v. United States that it was not an abuse of discretion for the trial judge to exclude evidence for the following reasons :

“Evidence of homosexuality has an enormous proclivity for humiliation and degradation of a participant in a fashion completely unrelated to testimonial honesty. The record before us makes evident the trial judge’s concern that the witness’ claim that the officer had engaged in homosexual conduct would unfairly debase him in the eyes of the jury. Even where testimony of that sort has some tendency to connote motivation, any exercise of judicial discretion worthy of the name necessitates consideration of these adverse effects. Here the preferred evidentiary items could have legitimately added little to appellant’s substantial presentation while their illegitimate propensities loomed large.” (footnotes omitted). 135 U.S.App.D.C. at 127-128, 417 F.2d at 544-545.

37 . In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931), the Supreme Court held that it was an abuse of discretion and prejudicial error to “cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross examination.”

38 . Urinalysis, onset of withdrawal symptoms and testing for tolerance to heroin are other possible means of proving a current state of addiction. Hospital or prison records which indicate a history of addiction or withdrawal symptomatology would also be probative evidence. We assume, but do not decide, that any such evidence in the hands of the Government would be subject to the rule of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. , 10 L.Ed.2d 215 (1963):

. . . “ [Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

39 . Either at the time of trial or while the informer was operating for the Government, see note 32 supra.

40 . See Dawkins v. United States, 324 F.2d 521, 523 (9th Cir. 1963). We cannot ignore the very serious problems of effective assistance of counsel raised by the use of appointed counsel whose expertise in the field of criminal law is limited. See generally, Bazelon, New Gods for Old: “Efficient” Courts in a Democratic Society, 46 N.Y.U.L.Rev. 653, 667-673 (1971).

41 . At a new trial, the defendants would be allowed to submit extrinsic evidence of Roscoe’s addiction if he testifies and could assert their right to the special cautionary instruction.

42 . This test is established in Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Griffin, supra note 10, 382 F.2d at 828-829; Lindsey v. United States, 77 U.S.App.D.C. 1, 133 F.2d 368 (1942).

43 . Accord, Hardy v. United States, supra note 10, 119 U.S.App.D.C. 364, 343 F.2d 233. See also United States v. Jones, supra note 8, 425 F.2d 1048; Williamson v. United States, supra note 8, 332 F.2d 123. I fully subscribe to the reasoning upon which Judge Leventhal concludes that it is no reflection upon the trustworthiness of police officers that the testimony of an officer involved in undercover arrangements will not in every case provide sufficient corroboration to negate the need for a cautionary instruction on addict-informers. I therefore join him in urging trial courts to give the cautionary instruction where the only corroboration of an addict-informer is from an officer involved in such arrangements.

44 . Sherman v. United States, 356 U.S. 369, 371-372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 451-452, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

45 . The Sherman case involved a government informer who was not paid for his efforts. 356 U.S. at 373, 78 S.Ct. 819, 2 L.Ed.2d 848. See also Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963).

46 . Transcript pp. 187-89, 237-39.

⁴⁷

48 . Transcript p. 107.

49 . Transcript p. 122.

50 . Transcript pp. 134, 152.

51 . Accord, Notaro v. United States, 363 F.2d 169, 173 (9th Cir. 1966). That the actions of an informer must be viewed with special caution when the entrapment defense is raised is implicit in Sherman v. United States, supra note 44, 356 U.S. at 374-376, 78 S.Ct. 819.

52 . We disagree with the dissent’s contention that in order for the jury to acquit these defendants it would have to reach a “rational conclusion” that they were entrapped. This contention seems to cast some doubt on the government’s burden to prove its case beyond a reasonable doubt. See Notaro v. United States, 363 F.2d 169, 175 (9th Cir. 1966); Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219 (1962).

53 . See Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); and United States v. Griffin, supra note 10, 382 F.2d at 829.

54 . Kinnard may nevertheless have been entitled to have the question of entrapment go to the jury. See Johnson v. United States, supra note 45, 115 U.S.App.D.C. 63, 317 F.2d 127.

55 . Testimony about Kinnard’s involvement in the narcotics trade was stronger than against Payne. See Transcript at pp. 167, 168. It is also of considerable weight that Kinnard was able to produce 400 dollars worth of heroin upon a single brief meeting with Payne.