United States v. Ramey

• Citation: 559 F. Supp. 60
• Decision Date: 19 November 1981
• Docket Number: No. CR-2-80-7.,CR-2-80-7.
• Parties: UNITED STATES of America, Plaintiff, v. Clyde Gene RAMEY, et al., Defendants, Robert Puckett, Defendant-Appellant.
• Court: U.S. District Court — Eastern District of Tennessee

559 F. Supp. 60

UNITED STATES of America, Plaintiff, v. Clyde Gene RAMEY, et al., Defendants Robert Puckett, Defendant-Appellant.

No. CR-2-80-7.

United States District Court, E.D. Tennessee, Northeastern Division.

February 18, 1981.

On Production of Brady Material April 13, 1981.

On Admission of Evidence April 13, 1981.

On Disposition of Bail Deposit April 16, 1981.

On Posttrial Motion for Acquittal April 24, 1981.

On Motions to Appeal In Forma Pauperis May 19, 1981.

On Denial of Motion to Appeal In Forma Pauperis May 29, 1981.

On Motion to Reduce Sentence September 1, 1981.

On Motion for Dismissal of Appeal November 19, 1981.

COPYRIGHT MATERIAL OMITTED

Guy W. Blackwell, Asst. U.S. Atty., Greeneville, Tenn., and Richard K. Harris, Asst. U.S. Atty., Knoxville, Tenn., for John Cary, U.S. Atty., Knoxville, Tenn., for plaintiff.

Allen Potter, Corpus Christi, Tex., C. Dwaine Evans, Morristown, Tenn., Arthur M. Fowler, Johnson City, Tenn., W. Robert Manuel, Erwin, Tenn., Bruce Fraser, Winston-Salem, N.C., for defendants.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

With slightly less than 2 weeks remaining before trial, retained counsel for the defendant Mr. Puckett moved the Court for leave to withdraw as counsel of record herein. In support of such motion, it is stated by such counsel (under oath) that Mr. Puckett no longer desires his representation but, instead, wants to employ substitute counsel. No such substitute counsel has entered his appearance herein.

By accepting employment as counsel for Mr. Puckett, his attorney of record herein stipulated impliedly that he would represent his client in this matter to a conclusion. United States v. Maines, D.C.Tenn. (1978), 462 F.Supp. 15, 161. While Mr. Puckett has the right, upon an order of the Court, to discharge his attorney with or without cause, United States v. Thomas, C.A.D.C. (1971), 450 F.2d 1355, 13561, this Court will scrutinize carefully any request of an attorney to withdraw from his representation coming on the eve of trial, see United States v. Maines, supra. When faced with a request for a change of counsel, either retained or appointed, the Court must consider the merits of the complaints of that continued representation, the delay between the cause of the dissatisfaction and the request, the nearness to trial, and the general dictates of fairness and justice for both the government and the defendant. United States v. Thomas, supra. One additional consideration, of course, is the requirements of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq.

The record herein does not reflect why Mr. Puckett has suddenly become dissatisfied with his representation by Mr. White. Coming this close to trial, it obviously would be somewhat difficult for Mr. Puckett to secure the services of substitute counsel. This would probably be compounded by the fact that Mr. Puckett resides in Texas, far removed from the site of the trial, and the alleged scene of the crimes charged against him herein.

While Mr. Puckett has the right to counsel of his own choosing,¹ such right is not so absolute as to permit the disruption of the orderly procedure in the courts or the interference with the fair administration of justice. Gandy v. State of Alabama, C.A. 5th (1978), 569 F.2d 1318, 13233. This is especially true when another competent attorney is available to represent the defendant. See United States v. Mardian, C.A. D.C. (1976), 546 F.2d 973, 9799, n. 9. The right of Mr. Puckett to counsel of his choice "* * * cannot be used merely as a manipulative monkey wrench * * *, rather, the proper exercise of the trial court's discretion requires a delicate balance between the defendant's due process right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice. * * *" Gandy v. State of Alabama, supra.

Absent some explanation by Mr. Puckett of any reason he has become dissatisfied with the services of Mr. White, the Court is not prepared to permit the withdrawal of such counsel at this late date, especially in view of the lack of an appearance by substitute counsel. The motion hereby is DENIED, but without prejudice to its renewal upon the entry of an appearance by substitute counsel.²

MEMORANDUM OPINION

On Production of Brady Material

The defendant complained that the prosecution suppressed evidence favorable to him which was material to his guilt or innocence after his request therefor and thereby deprived him of due process of law. Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 218 (headnote 3). This, it was insisted, consisted of statements of his codefendant Mr. Ramey giving his version in a presentence report to this Court of the crime with which the defendants Messrs. Ramey, Puckett and others are charged.

This version was obviously a preliminary, challenged, and highly speculative written account of Mr. Ramey to support an intended defense of entrapment which he afterward disavowed at the sentencing proceedings against him. It was disclosed to the prosecution in those proceedings against Mr. Ramey as required by Rule 32(c)(3)(C), Federal Rules of Criminal Procedure. Mr. Puckett contended that, with the knowledge of such information thus gained, the prosecuting attorney was required to furnish it to him for this current trial.

There is no merit to such contention. First, the prosecuting attorney had no obligation to communicate to Mr. Puckett such preliminary, challenged and speculative information. Giles v. Maryland (1967), 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737, 75810 (concurring opinion of Justice Fortas; no opinion was agreed upon by the Court). Secondly, there was nothing exculpatory of Mr. Puckett in the preliminary information disclosed to the prosecution.

The Court inspected the report again in camera during this trial. A sealed copy was provided for the record of this current trial.

Admission of Evidence

The defendant objected to the admission of exhibits nos. 1-61, inclusive, on multiple grounds, including the ground that the chain of post-raid custody was not shown sufficiently as a foundation for their admissibility. That objection was overruled.

The exhibited materials consisted of various bulky items sufficient to operate a laboratory for the manufacture of the controlled substance, methamphetamine (or "speed"). They were seized by a federal drug enforcement (DEA) and other officers either in a raid made pursuant to a valid search warrant or in a search incidental to the lawful arrest of one of the named defendants herein.

The DEA officer had constructive possession of the exhibits from the time they were seized in the raid until he delivered them to his agency's office in Nashville, Tennessee. He kept them physically in a locked cell of the jail in the county in which most of them were seized for the remainder of the evening (actually early morning) of their seizure. They were kept in the evidence-vault of his agency in Nashville until the same agent retrieved them to bring them to Court. Upon arrival in the town where the trial herein was to be held, the same DEA agent arranged with the sheriff of this county to keep them constructively in his custody in a place of security the sheriff provided until they were again withdrawn by the same agent to be delivered to Court and exhibited.

The DEA agent testified positively that each such exhibit was the same item seized in the raid. He was corroborated as to a portion of the material by other witnesses.

Such evidence was admissible because the possibilities of misidentification or alteration were eliminated "* * * `as a matter of reasonable probability. * * *'" United States v. Rocha, C.A. 9th (1972), 458 F.2d 4412, citing inter alia United States v. Blue, C.A. 7th (1971), 440 F.2d 300, 303, and for cf. United States v. Hobbs, C.A. 6th (1968), 403 F.2d 977, and citing and quoting from Gass v. United States, C.A.D.C. (1969), 416 F.2d 767, 770. The proposed exhibits were admitted as such.

On Disposition of Bail Deposit

The defendant Mr. Robert Puckett was ordered released pending trial herein after execution on January 5, 1981 of an unsecured bond, for his appearance(s), as ordered and directed, in the principal amount of $25,000 and the deposit in the registry of the District Court for the Southern District of Texas, Corpus Christi Division, of the sum of $2,500 in cash as specified by Honorable Eduardo E. de Ases, United States magistrate, such cash-money to be returned upon the performance of the conditions of pretrial release. Rule 46(a), Federal Rules of Criminal Procedure; 18 U.S.C. § 3146(a)(3). Such deposit was made in the District Court for the Southern District of Texas, Corpus Christi Division, was transferred to this District Court, Northeastern Division, on January 7, 1981, and was deposited and remains in the registry of this Court and Division.

Such defendant performed the conditions of his release pending trial. (The conditions of his release post-trial were prescribed by this Court after his conviction under count 1 of the indictment herein on April 14, 1981.) The Court was presented on April 15, 1981 with a proposed order for the withdrawal from its registry of $2,500 deposited therein after such transfer and for its delivery to Allen Potter, Esq., substituted counsel for Mr. Puckett herein.

Ms. Grace Ponce, aka Ms. Darlene Grace Ponce, made a verified assignment on February 24, 1981 of the said deposit to Mr. Potter, Esq., asserting that such deposit constituted her "moneys". Ms. Darlene Grace Ponce signed a purported "supplemental affidavit" of March 30, 1981, bearing no signed jurat, that she is "* * * the same person that sic: who placed monies with the United States Magistrate in Corpus Christi, Texas for the bond for Robert Puckett in * * * case no. Cr. 80-7 sic: no. CR-2-80-7. * * *"

The clerk of this Court represented that Ms. Bertha...