U.S. v. Carpenter, 74--1369
| Decision Date | 22 January 1975 |
| Docket Number | No. 74--1369,74--1369 |
| Citation | 510 F.2d 738,166 U.S.App.D.C. 358 |
| Parties | UNITED STATES of America v. Ronald R. CARPENTER, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David T. Austern, Washington, D.C. (appointed by this Court), for appellant.
Julius A. Johnson, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and David M. Bullock, Asst. U.S. Attys., were on the brief for appellee. Edward D. Ross, Jr., U.S. Atty., also entered an appearance for appellee.
Before LUMBARD, * Senior Circuit Judge for the Second Circuit, and McGOWAN and ROBINSON, Circuit Judges.
Ronald R. Carpenter's appeal raises the single point whether the four-count indictment, on which he was convicted after a non-jury trial before Judge June L. Green, should have been dismissed because a transcript of the preliminary hearing testimony of the government's principal witness was unavailable to the defendant at trial, due to the inadvertent recording-over of a tape made of the preliminary hearing pursuant to the United States Magistrate's Act, 18 U.S.C. § 3060(f). 1 As there is no reason to believe that Carpenter's defense was in any way prejudiced by the unavailability of the transcript, we affirm the conviction.
The principal witness against Carpenter was one Louis Avery, an undercover police officer for the narcotics branch of the Metropolitan Police. He testified that on July 13, 1973, he was introduced to Carpenter, who asked him to help sell or cash several United States savings bonds and notes, with a face value of $1,550, which Carpenter said were the proceeds of a Maryland burglary. Avery said he took the notes and bonds and later that day gave Carpenter $275. Carpenter then asked Avery to obtain cash for $140 in stolen American Express traveler's cheques. When Avery returned with the money ($60), Carpenter let him keep half and offered to and gave Avery some cocaine. 2
As required by 18 U.S.C. § 3060(f), a tape recording was made of the preliminary hearing held before a magistrate on September 24, 1973, at which Avery was the only witness. Carpenter was there represented by Silas Wasserstrom, Esq., of the Public Defender Service of the District of Columbia, which about one month prior to trial notified Carpenter's new counsel of the side and line numbers of the tape recording. Counsel thereupon submitted a voucher request for a transcript of the hearing pursuant to 18 U.S.C. § 3060(f). After some delay, counsel was finally advised by Pro-Typists, Inc., to whom the request had been forwarded by the magistrate's office, that the tape of the hearing had been recorded-over and lost.
On the day of the trial, February 4, 1974, defense counsel moved to dismiss the indictment pursuant to the United States Magistrate's Act, 18 U.S.C. § 3060(f), and the Jencks Act, 18 U.S.C. § 3500, because of the unavailability of the preliminary hearing transcript. No claim was made that the loss of the transcript was due to anything other than inadvertence on the part of the magistrate's office or Pro-Typists, Inc. The district court denied the motion, but at the same time ordered the presence in court of Wasserstrom. He appeared and read the record of Avery's grand jury testimony, which had been made available to the defense, to determine whether it agreed with his notes of the testimony Avery had given on September 24, 1973, at the preliminary hearing. Wasserstrom consulted with defense counsel and then was excused upon the motion of the defense. Although he remained available as an impeachment witness, he was never called. In denying the motion to dismiss, the district court also was assured that all other Jencks Act material, including police department reports Avery had made shortly after his meetings with Carpenter, had been or would be turned over to the defense, and this was in fact done.
Avery's trial testimony was thus subject to cross-examination based upon notes he had made shortly after the events in question, as well as the grand jury testimony he had given under oath only a month after the preliminary hearing. There was no indication that a transcript of Avery's testimony at the preliminary hearing would have made defense counsel's cross-examination any more effective, as Wasserstrom had gone over the grand jury material in light of his notes and apparently had had nothing to add. Nothing in the record suggests that Avery's trial testimony departed from what he had said before the grand jury or at the preliminary hearing. In these circumstances, the defense was in no way prejudiced.
On this record we find that the trial court was clearly correct in refusing to dismiss the...
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