542 F.2d 1283 (7th Cir. 1976), 75-1360, United States v. Harris

Docket Nº:75-1360, 75-1399, 75-1409 to 75-1415 and 75-1421.
Citation:542 F.2d 1283
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Herman Tyrone HARRIS et al., Defendants-Appellants.
Case Date:October 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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542 F.2d 1283 (7th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Herman Tyrone HARRIS et al., Defendants-Appellants.

Nos. 75-1360, 75-1399, 75-1409 to 75-1415 and 75-1421.

United States Court of Appeals, Seventh Circuit

October 12, 1976

Argued April 5, 1976.

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John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard A. Hanning, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Terrance L. Smith, East Chicago, Ind., Frank J. Galvin, Jr., Hammond, Ind., Donald S. Eisenberg, Madison, Wis., Sheldon H. Cohan, Gary, Ind., Steven R. Crist, Highland, Ind., Jay N. Given, East Chicago, Ind., Cornelius E. Toole, Chicago, Ill., Michael L. Muenich, Hammond, Ind., Hawk P. C. Kautz, Merrillville, Ind., for defendants-appellants.

Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and WYZANSKI, Senior District Judge. [*]

PELL, Circuit Judge.

This is the fourth case to reach this court as a result of the Government's efforts to break up the drug ring of the so-called Family. The prior cases to reach this court were: United States v. Hillsman, 522 F.2d 454 (7th Cir. 1975), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410; United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); United States v. Jeffers, 532 F.2d 1101 (7th Cir. 1976), cert. filed, 44 U.S.L.W. 3739. No purpose would be served by repeating the facts which form the basis for these cases; they are amply set forth in our prior opinions. The particular facts relevant to the issues raised on this appeal are set forth in our discussion of those issues. We further observe at this outset point that the diversity and complexity of those issues necessarily has resulted in a regretful prolixity in this opinion. This appeal, however, demonstrates once more that in a conspiracy case with numerous defendants a direct relationship is discernible between the proliferation of parties and

issues. I. Adequacy of the Information Provided to the

Defendants Prior to Trial

The defendants complain of a general lack of discovery in this case; the Government responds that a large amount of discovery was allowed, that it complied with the district court's orders, and that the defendants were not prejudiced by the Government's refusal to provide all the materials that were requested. This general disagreement only reflects that the Government and the defendants are on opposite sides in the present litigation. The district court ordered the Government to reveal, inter alia, the date, the time, and the place of each overt act. It also ordered the Government to disclose the participants in

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the overt acts other than Government informers. The Government filed reports which purported to comply with this order and also filed much other material. The Government in answering indicated that it did not have some of the information requested, but the defendants have not argued or established that this was untrue. This court need not discuss the other information which was disclosed but will discuss the major items which the defendants argue should have been revealed to them.

The defendants desired lists of witnesses from the Government. Defendant Bullock raises also this point in his supplemental brief. Defendants cannot obtain lists of Government witnesses as a matter of right, although the district court has discretionary power to order it to provide a list. United States v. Jackson, 508 F.2d 1001, 1006-07 (7th Cir. 1975). The district court did not abuse its discretion by refusing to do so in this case. The Government did not wish to reveal this information because of physical danger to witnesses as well as the possibility of threats and intimidation. The sealed materials provided to the district court by the Government in support of its contentions regarding dangers to witnesses amply establish that the Government's fears were not unwarranted.

The defendants indicate that the Government's compliance with the court's discovery order was incomplete. William Douglas was listed as a participant in two overt acts but not as a participant in another. The Government justifies the omission on the grounds that he was a Government informer and therefore not within the scope of the order. The defendants do not appear to contend that he was not an informer; but because his identity had been revealed, the Government does not appear to have had cause not to have indicated his participation. The Government did, nevertheless, comply with the letter of the court's order. The Government apparently concedes that it erroneously omitted Horace Clay III as a participant in one overt act. The defendants have made no showing, however, that the Government knew that Clay was a participant or that Clay was in any way specifically prejudiced by the omission. An error in administering discovery rules is not reversible unless it is shown that the error was prejudicial to the substantial rights of the accused. United States v. Owen, 492 F.2d 1100, 1110 (5th Cir. 1974), cert. denied, 419 U.S. 965, 1019, 95 S.Ct. 227, 42 L.Ed.2d 180. The Jencks Act materials provided after the testimony of Isaac Davis contain the statement: "Pimp (Horace Clay) is not a Family member. He associated with the Family, but Davis knew of no specific duties that Clay performed." The defendants argue that this information should have been provided prior to trial because it was exculpatory. Counsel for Clay moved for a mistrial because this information was not disclosed, but the court denied the motion. The statement is not exculpatory. The Government never has contended that the conspiracy charged was co-extensive with membership in the Family. During a pretrial conference the Government represented that there were no phone conversations recorded involving these defendants. The Jencks Act materials show that a conversation was recorded, but the defendants have not shown that any of the present defendants were parties to that conversation. Defendant Bullock in his supplemental brief makes general contentions regarding the lack of discovery as to him. Specifically, however, what he contends is that certain statements which witnesses testified Bullock made to them were not revealed prior to trial. The law in this circuit is clear that the Jencks Act forbids a district court from ordering the production of statements of Government witnesses, even if they contain statements made by defendants, prior to the time the Government witnesses testify. United States v. Feinberg, 502 F.2d 1180 (7th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1122, 43 L.Ed.2d 396 (1975); United States v. Callahan, 534 F.2d 763 (7th

Cir. 1976). II. Adequacy of the Information Provided to the

Defendants During Trial

The defendants argue that the court committed reversible error in administering the

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Jencks Act, 18 U.S.C. § 3500, and that the Government's compliance with section 3500 was inadequate. We shall discuss the points raised seriatim.

The defendants argue that the court erred on three occasions regarding notes taken by Government agents. The Jencks Act only requires notes taken by Government agents to be produced if they are a substantially verbatim transcript of a statement of a witness or if the notes have been signed or otherwise adopted or approved by a witness if the witness has not read the notes and the person taking the notes did not read them back to him. Goldberg v. United States, 425 U.S. 94, 110-11 n. 19, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976).

VanBokkelen, the prosecuting attorney in this case, took notes on an interview with Isaac Davis, a Government witness. VanBokkelen stated that Davis had never seen the notes or had a chance to adopt them. The defendants' position at trial was that it was sufficient under the Jencks Act to require production if the Government had had the opportunity to have the witness review the notes. This is clearly not the law. No one argued at trial that the notes were a verbatim transcript of the interview, as is argued in this court. In any event, the trial court examined the notes; and if they were a substantially verbatim transcript within the meaning of the act, this most likely would have been apparent. Short excerpts are not producible as verbatim transcripts. Palermo v. United States, 360 U.S. 343, 352-53, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The court did not err by refusing to order the Government to produce the notes.

VanBokkelen also took notes on an interview with Esker Dodson. The notes were given to defense counsel voluntarily; but at the time they were turned over, VanBokkelen indicated that they were not § 3500 material, that the witness had not seen the notes, and that they had been made for the most part after the interview was over. We are unable to say that the court abused its discretion under these circumstances in not allowing cross-examination of Dodson on the basis of these notes.

Henry Harris, a witness for the Government, testified that he had been interviewed by Special Agent Schabillion and that notes were made by Schabillion. He indicated that he had read some handwritten notes. Schabillion testified that he took notes when he interviewed Harris, that he utilized those notes for asking questions before a court reporter, and that he had destroyed the notes after they were incorporated into the formal statement prepared by the court reporter. He indicated that to the best of his recollection he had neither read the notes to Harris nor showed them to him. Harris...

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