U.S. v. Albert, s. 76-2560

• Citation: 595 F.2d 283
• Decision Date: 21 May 1979
• Docket Number: Nos. 76-2560,76-4350,s. 76-2560
• Parties: 4 Fed. R. Evid. Serv. 750 UNITED STATES of America, Plaintiff-Appellee, v. Douglas W. ALBERT, Bennard D. Jackson, Gilbert Gonzalez, Jesse C. Smith, John J. Davis and Richard Y. Garcia, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 283

595 F.2d 283

4 Fed. R. Evid. Serv. 750

UNITED STATES of America, Plaintiff-Appellee, v. Douglas W. ALBERT, Bennard D. Jackson, Gilbert Gonzalez, Jesse C. Smith, John J. Davis and Richard Y.

Garcia, Defendants-Appellants.

Nos. 76-2560, 76-4350.

United States Court of Appeals,

Fifth Circuit.

May 21, 1979.

James A. Moore, Robert C. Hunt, Ray B. Martin, Houston, Tex., for defendants-appellants.

J. A. Canales, U. S. Atty., James R. Gough, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Scott Campbell, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GODBOLD, SIMPSON and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

The defendants were charged in an eight-count indictment with conspiring to deprive United States citizens of guaranteed rights, 18 U.S.C. § 241, depriving persons of property without due process of law and under color of state law, 18 U.S.C. § 242, and filing false income tax returns, 26 U.S.C. § 7206(1). Each was convicted by a jury on one or more counts. ¹ All appeal. We affirm all convictions.

The facts

All defendants were members of the Narcotics Division of the Houston Texas Police Department. The evidence at trial supported the following version of the facts. In the spring and summer of 1972 defendants and others ² participated or aided in placing and monitoring unlawful wiretaps on telephone lines to gain information about drug traffic in Houston. These wiretaps revealed that a sale of marijuana was to take place in Houston in July 1972 between Geronimo Torres, a Houston seller, and Charles Jacobs, a Michigan buyer. It was also learned that John Huston of Michigan was to transport the marijuana from Houston to Michigan.

The transfer of the marijuana took place in a motel in Houston. Jacobs gave Huston about $300 for his expenses, and Huston left the motel in a car containing the marijuana. Jacobs also gave Torres $900 as a final payment on the marijuana. After these transactions Jacobs had approximately $9,000 in cash on his person.

Jacobs and Torres remained at the motel after Huston departed. Soon thereafter witness Avila and defendant Jackson appeared at the motel room of Torres and Jacobs, identified themselves as police officers and entered. A short time later defendant Albert arrived at the room. ³ Torres and Jacobs were then beaten by one or more of the officers. Avila took the $900 Torres had and later divided it with witness Chavez. Jackson seized Jacobs' cash and gave it to Albert. No report was made of the seizure of this money. It was not included on property receipts given to Jacobs and Torres, and it was never returned.

Huston was stopped shortly after leaving the motel by persons identifying themselves as Houston police officers. He too was beaten and the $300 he had was seized and has never been accounted for or returned.

After Jacobs, Torres, Huston and the confiscated marijuana had been taken to the police station, witnesses Avila and Zavala and defendants Albert, Jackson and Gonzalez prepared a list of the officers who had participated in the investigation and how much of the stolen money from the raid each was to get. ⁴ The money was then divided.

These prosecutions followed.

The following alleged trial errors require discussion: (1) denial of motion for continuance, (2) denial of speedy trial, (3) admission of testimony of a prior crime of defendant Gonzalez, (4) admission of a tape recording as a prior consistent statement of a government witness, (5) outside communication with the jury. Other claims of error sequestration of the jury, lack of evidence to support convictions of defendants Garcia and Davis, and reversible cumulative error do not merit discussion.

(1.) Denial of continuance

Defendants moved for a continuance based on the illness of prospective defense witness Sgt. Robert Hosford of the Houston Police Department, defendants' immediate superior.

The denial of a continuance is within the discretion of the trial judge, E. g., Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); U. S. v. Sahley, 526 F.2d 913 (CA5, 1976); U. S. v. Gidley,527 F.2d 1345 (CA5, 1976); U. S. v. Ruiz, 533 F.2d 939 (CA5, 1976), and will be disturbed on appeal only on a clear showing of abuse of discretion by the trial court, E. g., U. S. v. Moriarity, 497 F.2d 486 (CA5, 1974); U. S. v. Harper, 505 F.2d 924 (CA5, 1974). Whether a trial court has abused this discretion is decided on a case-by-case basis in light of the circumstances. Ungar; McKinney v. Wainwright, 488 F.2d 28 (CA5, 1974); U. S. v. Uptain,531 F.2d 1281 (CA5, 1976). Of particular importance are the reasons for continuance presented to the trial court. Ungar & Uptain. A request for continuance should be advanced with all specificity and detail feasible under the circumstances and presented as early as possible. Uptain.

In the present case there has been no showing of an abuse of discretion. Although Hosford suffered a stroke on December 18, 1975, the motion for continuance was not filed until February 11, 1976, only six days before trial was set to begin. To delay what was foreseen to be, and indeed was, a long and complex trial so close to its beginning required a showing to the trial court of strong reasons. Defendants in their motion stated only that Hosford's testimony was "material and relevant" and that he was the only witness capable of presenting "material evidence." Because these were the only reasons given they took on special significance. Ungar. The trial court found that because of the paucity of information contained in the conclusory assertions of the motion, it was unable to determine whether Hosford's testimony would be material, whether it would be substantially favorable to defendants, whether it would be corroborative or cumulative, and whether it could be obtained through other witnesses or other sources.

The defendants made no representation concerning when Hosford would be able to testify except that he "should be available in the near future" and that he was "steadily improving." ⁵ The trial court found, on the basis of these statements, that it could not evaluate when Hosford would be available to testify. Thus, defendants made no sufficient showing that Hosford would be able to testify if a continuance was granted. See Blackwell v. U. S., 405 F.2d 625 (CA5, 1969). The prosecution offered to stipulate to the substance of Hosford's testimony by direct stipulation of fact and by stipulated admission of portions of Hosford's testimony in prior related proceedings. In addition, the prosecution offered to cooperate in taking Hosford's deposition. Defendants refused these offers. While defendants were not compelled to accept the offers, the possibility of these alternative sources for the testimony Hosford would have given may be taken into account in determining whether a delay was justified.

The defendants review the trial record and point to testimony which, they say, demonstrates the significance of Hosford as a witness. But the trial court cannot be put in error for matters not made known to it when the motion was presented.

The court did not abuse its discretion in declining to grant a continuance.

(2.) Speedy trial

Defendants maintain that the indictments should have been dismissed for delays between indictment and arraignment and between arraignment and trial, violative of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 Et seq., and the Rule 50(b) Plan for the United States District Court for the Southern District of Texas for Achieving Prompt Disposition of Criminal Cases. The district court did not err in failing to dismiss the indictments.

The indictments were returned May 31, 1974. Defendants were arraigned October 31, 1975, and trial began February 17, 1976.

Since indictment, arraignment and trial all occurred before July 1, 1976, the time limitations of the Speedy Trial Act of 1974, 18 U.S.C. § 3161(c), do not apply. ⁶ 18 U.S.C. § 3163(b); U. S. v. Garza, 547 F.2d 1234 (CA5, 1977).

The Rule 50(b) Plan in effect at the time in question required that arraignment occur within 30 days of indictment and that trial take place within 90 days of the arraignment for high risk defendants. ⁷

Seventeen months elapsed between indictment and arraignment. However, most of this time was spent pursuing an interlocutory appeal to this court to determine whether defense attorneys should be disqualified for conflict of interest. It was the duty of the prosecution to call attention to the possible existence of a conflict of interest. The trial judge ruled that there was a fatal conflict, but this court reversed. U. S. v. Garcia, 517 F.2d 272 (CA5, 1975). Three and one-half months passed between arraignment and trial. Trial had been set for early January 1976, but was moved to February 18 because of an earlier trial still in progress before the original trial judge and because of that judge's poor health.

Rule 50(b) plans are "not inflexible and noncompliance therewith does not automatically result in dismissal." U. S. v Maizumi,526 F.2d 848 (CA5, 1976); See also, U. S. v. Garcia, 553 F.2d 432 (CA5, 1977); U. S. v. Bloom, 538 F.2d 704 (CA5, 1976); U. S. v. Atkins, 528 F.2d 1352 (CA5, 1976); U. S. v. Pena, 527 F.2d 1356 (CA5, 1976); U. S. v. Clendening, 526 F.2d 842 (CA5, 1976). A 50(b) plan is "not intended to impose arbitrary or impractical penalties on the system of criminal justice it seeks to expedite." U. S. v. Rodriguez, 497 F.2d 172 (CA5, 1974).

The delay between the end of the interlocutory appeal and arraignment was short, ⁸ and the delay beyond the plan limit between arraignment and trial was only 18 days. Given the complexity of this case and the multiplicity of defendants, ⁹ the short period by which the 50(b) plan time was extended, and the reasons for the extensions, ¹⁰ the district court was not in error in refusing to dismiss the...