U.S. v. Richman
| Decision Date | 31 May 1979 |
| Docket Number | 78-1191,Nos. 78-1190,s. 78-1190 |
| Citation | 600 F.2d 286 |
| Parties | 4 Fed. R. Evid. Serv. 1223 UNITED STATES of America, Appellee, v. Harold RICHMAN, Defendant-Appellant. UNITED STATES of America, Appellee, v. George PAPPAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Anthony M. Traini, Boston, Mass., with whom Martin K. Leppo, Boston, Mass., was on brief, for appellant Harold K. Richman.
Ann Lambert Greenblatt, Boston, Mass., with whom Silverglate, Shapiro & Gertner, Boston, Mass., was on brief, for appellant George Pappas.
Elliot D. Lobel, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
On March 9, 1978, defendants George Pappas and Harold Richman were convicted after a ten day jury trial. Richman was convicted on three of four counts, and Pappas on two of three. Both were convicted of violating section 846 of title 21, conspiring to possess with intent to distribute and distributing cocaine and of violating section 841(a)(1) of title 21 and section 2, title 18, knowingly and intentionally possessing with intent to distribute and distributing cocaine on August 21, 1976. Harold Richman was convicted of the same substantive count for August 17, 1976. Richman and Pappas were tried with three other codefendants. A narrative of the evidence is essential to understand the defendants' claims of alleged errors by the trial court.
Two DEA (Drug Enforcement Administration) informants contacted Jesse Jackson, one of the five codefendants, in August, 1976. The informants, Lonnie Wilkerson and Robert Skinner, explained to Jackson that they were looking for an apartment where they could deal cocaine. Jackson operated a real estate office and a fish and chips restaurant from a single location. At several meetings during the next three days, Wilkerson and Skinner discussed with Jackson the purchase of some cocaine from him. On August 17, after being fitted with transmitters, Skinner and Wilkerson met Jackson at his real estate office where they were to await the arrival of the cocaine they wished to purchase, for a price of $1,500 per ounce. Shortly thereafter, Pappas dropped Richman at the real estate office and waited, double parked, while Richman carried a plastic baggie containing approximately one ounce of cocaine into where the others were waiting. The informants paid for the cocaine with DEA funds. After discussions concerning the possibility of future sales of cocaine, at a better price, Richman left and got back into the awaiting car driven by Pappas. Wilkerson and Skinner left after a brief discussion with Jackson, rendezvousing with DEA agents under whom they were working.
DEA agents were stationed outside the real estate office in a van equipped with a camera and receivers and taping devices for the transmissions from the informants' recording devices. The people entering and leaving Jackson's office were photographed during the approximately forty minute transaction.
On August 21, Skinner and Wilkerson, after being fitted again with recording devices, met with Jackson at a restaurant to plan a second purchase of cocaine. After agreeing on a price of $1,300 an ounce, informants agreed to purchase three ounces. The three repaired to Jackson's office and met with Richman and Samuel Coran, another of the codefendants. Coran left the others after expressing his opinion that the informants were police agents and that he did not want any involvement with them. Richman then asserted that he would need $4,000 for the proposed deal and that he would need the money up front. The informants balked at this. In the midst of the dickering, Richman went to Jackson's desk, pulled a pad of paper over, and dialed a number written on it. He said to the person on the other end of the line that "everything (was) still in motion." Richman then reported that he had some people waiting for him and exited Jackson's office to wait in his car outside. After more discussion, Skinner agreed to front $1,200 which Jackson carried outside to the waiting Richman who then drove to the Holiday Inn in Randolph, Massachusetts, where he met Pappas who was waiting for him in the lobby. DEA agents had the place under surveillance. After a short conversation, Richman went out to the parking lot and Pappas made a phone call from a lobby phone booth. As soon as he finished the call, he went out to Richman who handed him approximately ten to fifteen bills and then left. Pappas then returned to the same lobby phone and placed a call. An agent entered the booth next to Pappas and overheard the conversation which was as follows:
Pappas left the Holiday Inn on completing the call. Agents who were tailing him lost contact before he reached his destination.
After Richman had driven off, Jackson returned to his office saying that Richman had a "million dollar connection" and waited with the informants. After some time, Skinner complained of the delay and Jackson then pulled out the same paper Richman had used in making his call earlier and dialed the number, hanging up when there was no response. Jackson then left the room and Wilkerson surreptitiously wrote the number on the inside cuff of his tennis shorts. The number was that of the phone booth at the Holiday Inn where Pappas had made his calls after meeting with Richman. Jackson returned, further discussion concerning the delay ensued, and finally Jackson called Richman. The three Jackson, Skinner and Wilkerson then got into Jackson's car and drove to Howard Johnson's in Canton, Massachusetts, where Jackson gave another $300 of Skinner's DEA funds to Richman, who was waiting in his own car nearby. While Jackson was with Richman, two gunmen came over and stood sentinel at Jackson's vehicle and waited there until Jackson returned and handed Skinner and Wilkerson a package of cocaine.
Both Richman and Pappas allege that delays by the government in complying with discovery requests, purported misrepresentations by the government to obtain a continuance, and alleged countenancing of perjury before the grand jury by the informants constituted such serious misconduct that the indictments should have been dismissed.
The Assistant United States Attorney, Nasif, originally handling the case failed to disclose to defendants that Skinner and Wilkerson were paid informants. At a hearing held by the trial court, he explained that he thought that the payments being received by the informants were to cover expenses they incurred while acting as undercover agents and were not in exchange for either grand jury testimony or testimony at trial. In fact, the informants had received about $17,000 between them during the period March, 1976, through March, 1977. On December 30, 1977, defense learned that Wilkerson had been a paid informant and, on the following day, they learned that Skinner had also been a paid informant. Trial was scheduled to begin on January 3, 1978. The trial actually began on February 21, 1978.
The error by the original government attorney handling the case in failing to provide the above information was regrettable, but, given the circumstances of this case, not so prejudicial as to warrant a dismissal. We assume for purposes of this discussion that had the government exercised "due diligence," Fed.R.Crim.P. 16(a)(1)(A), it could have obtained the information in time to comply with the automatic discovery order which it answered in September, 1977. The requested information Was provided in advance of trial. The delay was the product, not of willful misrepresentations or bad faith, Compare United States v. Banks, 383 F.Supp. 389, 392-3 (D.S.D.1974), Appeal dismissed sub nom. United States v. Means, 513 F.2d 1329 (8th Cir. 1975), but of a negligent misunderstanding by the government attorney. The defense had already been armed with the information that the informants were participating in the witness protection program which, as the defense knew, carried with it financial assistance that one of the informants had received consideration in a criminal case, and that one had a criminal record. This information alone is potent ammunition in a defense attorney's arsenal for impeaching a government witness. When the information on Skinner and Wilkerson came to light, the new prosecutors quickly made it available to the defense and the court permitted a continuance on January 3, 1978, for the defense to digest it. The trial court found insufficient prejudice to warrant the extraordinary relief of dismissal. No deliberate wrongdoing by the government or prejudice to the defendants was evidenced. The district court has discretion in handling non-compliance with discovery orders and the manner chosen by the court here was not an abuse of that discretion. See United States v. Gladney, 563 F.2d 491 (1st Cir. 1977); United States v. Hathaway, 534 F.2d 386, 402 (1st Cir.), Cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976).
Closely aligned with the above charge is that Nasif countenanced perjury before the grand jury in January, 1977, when the informants, when asked if they had received any consideration in exchange for their testimony, responded that they had received promises of protection. No mention of the nearly $17,000 was made. During the hearing held by the district court, Nasif stated that he did not learn that the two...
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