552 F.2d 833 (9th Cir. 1976), 75-2424, United States v. King

Docket Nº:75-2424, 75-2934.
Citation:552 F.2d 833
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Andre Willis KING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fred Neil POWELL, Defendant-Appellant.
Case Date:December 16, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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552 F.2d 833 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Andre Willis KING, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Fred Neil POWELL, Defendant-Appellant.

Nos. 75-2424, 75-2934.

United States Court of Appeals, Ninth Circuit

December 16, 1976

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[Copyrighted Material Omitted]

Certiorari Denied April 18, 1977. See 97 S.Ct. 1646.

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Marcus S. Topel (argued), San Francisco, Cal., for defendant-appellant (in 75-2424).

Billie A. Rosen, Atty. (argued), Crim. Div., Dept. of Justice, Washington, D.C., James J. McLaughlin, Atty. (argued), Crim. Div., Dept. of Justice, Washington, D.C., Dennis Michael Nerney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before BARNES, CHOY and KENNEDY, Circuit Judges.

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CHOY, Circuit Judge:

Andre Willis King and Fred Neil Powell appeal from multiple-count convictions for conspiracy to commit and for the commission of narcotics offenses. We affirm.


King and Powell were indicted with two others, Kearney and Lemon, in an eight-count indictment charging various violations of 21 U.S.C. §§ 841(a), 846, 959, and 963. In particular, King was charged with conspiracy to import heroin illegally into the United States and to possess and distribute heroin (Count One) and with unlawful distribution of heroin intended for importation into the United States (Counts Three and Four). Powell was charged with conspiracy (Count One), with unlawful distribution of heroin intended for importation into the United States (Counts Three, Four, and Five), and with distribution of heroin (Count Eight). The indictment accused King, Powell, Kearney, and Lemon, as well as several unindicted co-conspirators, of engaging in a scheme to obtain heroin in Thailand, transport it through military cargo channels to Japan, and reship the heroin in a variety of ways from Japan to the United States for ultimate unlawful sale and distribution. Further detailed description of the activities and the evidence will be referred to where specifically relevant to issues on appeal.

Jury trial commenced in the district court on April 28, 1975. After a two and one-half week trial, Powell was convicted of Count Eight and Lemon was convicted of three counts. After three days of deliberation, the jury was unable to reach a verdict as to the other counts and defendants. As to those, a mistrial was declared, and a second jury trial commenced two days later. The second jury found King and Powell guilty as to all remaining counts. 1

Between them, King and Powell raise six issues. Numbers one through five apply to King and are discussed in his brief. Powell's brief adds a sixth, and Powell also adopts by reference the arguments presented in King's brief as to numbers one and five.


1. Was the district court's admission into evidence of the depositions of two absent witnesses erroneous as a denial of King's and Powell's rights of confrontation, effective assistance of counsel, and due process?

2. Did the district court err in denying King's motion for severance?

3. Did the district court err in refusing King's request for a cautionary instruction during the trial regarding the admissibility of statements under the co-conspirator exception to the hearsay rule?

4. Did the district court abuse its discretion in rereading a portion of a witness' testimony to the jury?

5. Are the convictions of King and Powell for violating 21 U.S.C. § 959 (unlawful manufacture or distribution of a controlled substance for purposes of unlawful importation) unconstitutional since Congress' legislative authority does not properly reach their activity outside the United States?

6. Was the evidence insufficient to support Powell's conviction on Count Eight?


  1. Use of Deposition Testimony under 18 U.S.C. § 3503

    A key component of the Government's case rested on the testimony of two unindicted co-conspirators, Adams and Gamble. They were not available to testify at trial since both were serving terms of imprisonment at Yokosuka Prison in Japan for Japanese narcotics law offenses. 2 The Government thus submitted their testimony in the form of videotaped depositions with a stenographic transcript.

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    The depositions were taken pursuant to 18 U.S.C. § 3503, adopted in 1970. 3 Section 3503(a) provides that a court may order testimony for a criminal action to be taken by deposition "(w)henever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved,"

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    and subsection (f) permits the use of such a deposition at trial if, among other reasons, "the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition . . . ." The district court admitted the depositions into evidence on this basis. The statute also provides, in subsection (b), that

    (a) defendant not in custody shall have the right to be present at the examination, but his failure, absent good cause shown, to appear after notice and tender of expenses shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

    Under subsection (d), the scope of examination and cross-examination allowed is as broad as would be allowed at trial itself, and the deposition is taken and filed as in civil actions. See Fed.R.Civ.P. 28, 30.

    The depositions were set at Yokosuka Prison, and defendants (then on bail) and their attorneys traveled to Japan to participate at Government expense. The Japanese government was uneasy about the entire project, however, and it imposed several restrictions. It required that the defendants arrive together no earlier than January 20, 1975, and that the depositions begin the next day, though defense counsel protested that more time was needed to investigate and prepare for cross-examination. Defendants were taken from the airport to rooms prepared for them and were guarded throughout their entire stay. They were confined to their rooms except for the trips to the prison for the deposition sessions, and they were not allowed to telephone or otherwise communicate with anyone else in Japan. They and their rooms were frequently searched. They could confer with their attorneys initially only in their own rooms, but subsequently in counsels' rooms as well. There were also rooms set aside for consultation purposes at the prison. The defendants and their attorneys could not speak privately with the deponents prior to their examinations, and a rigid daily schedule was set for the depositions.

    Defense counsel vigorously objected to these conditions, and American consular officials attempted to have them relaxed, but the Japanese government would not relent. Claiming that the circumstances were intolerable, defendants and their counsel withdrew on the fourth day during the Adams deposition and returned to the United States. The Government continued under the restrictions, taking the remainder of Adams' deposition and all of Gamble's after the defense's departure.

    Back before the district court, the defendants moved to exclude the depositions. The motions were denied. The deposition videotapes were played to the jury in both trials with all constitutional objections made at the time of taking deleted. The court prohibited defense counsel from commenting to the jury either on the circumstances of the depositions or on the absence of cross-examination of Gamble. Nor were they allowed to raise evidentiary objections to questions in Gamble's testimony, their failure to appear and assert them at the deposition being taken as a waiver.

    Appellants here raise three objections: (1) that the use of deposition testimony of witnesses absent at trial, as authorized by § 3503, is unconstitutional on its face; (2) that such use in the circumstances of this case is unconstitutional; and (3) that their departure from the deposition was not an effective waiver.

    1. Facial Constitutionality of 18 U.S.C. § 3503

      Appellants argue that the Supreme Court has never expressly authorized, for sixth amendment confrontation purposes, the use of an absent witness' deposition in lieu of trial testimony. While that may be true, the Court has observed that, at least since Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), "prior-recorded testimony has been admissible in appropriate cases." Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). Instances where such evidence has withstood sixth amendment scrutiny include testimony given at an earlier trial

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      (see, e. g., Mancusi, supra ) or at a preliminary hearing (see, e. g., California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)) where the defendant was represented by counsel who had the opportunity to conduct an effective cross-examination. 4

      We consider here a federal statute entitled to a strong presumption of constitutionality. See United States v. Watson, 423 U.S. 411, 416, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), quoting United States v. Di Re, 332 U.S. 581, 585, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Two other circuits have considered the confrontation question in the context of § 3503, and both have rejected constitutional challenges to the use at trial of such depositions. United States v. Ricketson, 498 F.2d 367 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973). See also United States v. Carter, 493 F.2d 704 (2d Cir. 1974). We agree with these...

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