U.S. v. Parodi

Citation703 F.2d 768
Decision Date23 March 1983
Docket Number81-5216 and 81-5219,Nos. 81-5215,s. 81-5215
Parties12 Fed. R. Evid. Serv. 1227 UNITED STATES of America, Appellee, v. Carlos Manuel PARODI, Appellant. UNITED STATES of America, Appellee, v. Edwin Barton CONWAY, Appellant. UNITED STATES of America, Appellee, v. Robert Lee LAWS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Mark King Leban, Miami, Fla., for appellant Carlos Manuel Parodi.

D. Blake Yokley, Winston-Salem, N.C., for appellant Edwin Barton Conway.

David T. Flaherty, Jr., Lenoir, N.C., for appellant Robert Lee Laws.

Bruce C. Fraser, Winston-Salem, N.C., for appellant Joseph Bean Crosswell.

David B. Smith, Asst. U.S. Atty., Greensboro, N.C. (Kenneth W. McAllister, U.S. Atty., Greensboro, N.C., Becky M. Strickland, Paralegal Specialist, Carolyn D. Johnson, Third Year Law Student on brief), for appellee.

Before RUSSELL and WIDENER, Circuit Judges, and JAMES H. MICHAEL, Jr., United States District Judge for the Western District of Virginia, sitting by designation.

DONALD RUSSELL, Circuit Judge:

The appellants-defendants appeal their convictions under an indictment, which in one count charged a conspiracy to violate the federal narcotics statutes on the part of all the persons named in the indictment and charged the commission of certain overt acts in pursuance of the conspiracy by some of the persons named in the indictment. 1 As originally filed, the indictment named eleven persons; in a superseding indictment the number of defendants was reduced to ten. Of the ten named in the superseding indictment, two--Michael and Douglas Early, brothers--were never apprehended or arrested; the others named, however, were arrested. However, it appears that only five of those named were brought to trial.

At trial, all the defendants tried were convicted under the conspiracy count in the indictment. In addition, the defendant Conway was convicted under four counts charging the commission by him of overt acts in pursuance of the conspiracy and the defendant Crump was acquitted of the count charging the commission by him of an overt act in connection with the conspiracy. After conviction, followed by a denial of a motion for acquittal after verdict under Rule 29(c), Fed.R.Crim.P., the five defendants appealed. While the appeals were pending, however, the defendants Crump and Crosswell moved voluntarily to dismiss their appeals and the motions were granted. The defendants who are presently appealing their convictions are accordingly the defendants Parodi, Conway and Laws.

In their appeals, the appealing defendants have raised two common claims of error and, in addition, have stated certain individual grounds for relief unique to them. Thus, all the defendants join in claiming trial error in failing to sequester DEA (Drug Enforcement Administration) Agent Ingram during trial and in permitting him to testify in rebuttal. They also complain of prejudice in the action of the district judge in allegedly interfering by addressing two questions to the witness Ozella at the conclusion of his cross-examination. The defendant Parodi individually charges error in the denial of his motion to sever and of his motion for acquittal. He, also, joins with the defendant Conway in alleging error in the district court's permitting testimony from Agent Ingram of prior consistent statements by the witness Ozella in response to the defendants' attack on the latter's credibility. The defendant Laws appeals individually from the admission into evidence of taped telephone conversations in which he participated. In addition to his joint objection with the defendant Parodi to Ingram's corroborative evidence, the defendant Conway raises two alleged errors unique to him. The first of these relates to the admission in evidence of a photograph of him with a known fugitive, one Turner. Conway further asserted that his conviction, under a count charging an overt act in pursuance of the conspiracy, was inconsistent with the acquittal of his co-defendant Crump, who was charged with like involvement in a like overt act. We overrule all the claims of error and affirm the convictions from which appeals are taken.

I

We address initially the asserted errors common to the contentions of all the appealing defendants. The first of these is the alleged error in not sequestering the DEA agent Ingram as requested under Rule 615, Fed.R.Evid., and in later permitting him to testify. 2 It is true that Rule 615 mandates, upon motion, the sequestering of the witnesses in any case. Excluded from such mandatory requirement, however, is "an officer or employee of a party which is not a natural person designated as its representative by its attorney" at trial. It has been authoritatively determined, based on the legislative history of the Rule, that a government investigative agent involved in a criminal prosecution, such as Ingram, is within this exception. United States v. Walker, 613 F.2d 1349, 1354 (5th Cir.1980), cert. denied, 446 U.S. 944, 100 S.Ct. 2172, 64 L.Ed.2d 800; United States v. Nix, 601 F.2d 214, 215 (5th Cir.1979), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 196; United States v. Woody, 588 F.2d 1212, 1213-14 (8th Cir.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d 484 (1979); In Re United States, 584 F.2d 666, 667, 48 A.L.R.Fed. 480 (5th Cir.1978). The trial court thus has a right to make an exception from a general rule of sequestration in favor of the chief investigating agent of the government involved in a trial. United States v. Frazier, 417 F.2d 1138, 1139 (4th Cir.1969), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 rehearing denied, 398 U.S. 945, 90 S.Ct. 1850, 26 L.Ed.2d 284 (1970); United States v. Windsor 17 F.2d 1131, 1133 (4th Cir.1969); United States v. Pellegrino, 470 F.2d 1205, 1208 (2d Cir.1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973). Ingram met fully the test of investigating officer capable of being designated by the Government as "its representative" at trial under Rule 615 and his exclusion by the district judge from the order sequestering the witnesses in this case was clearly authorized and was not error.

If it be conceded the district judge had the power to permit an investigating officer such as Ingram to remain in court during trial under Rule 615, Parodi contends that such permission, if granted, should be conditioned upon requiring the officer, if he is to be permitted to testify, to testify as the first witness in the case. He relies on Frazier as authority for so conditioning permission for the investigating officer to remain in court at trial under Rule 615. Frazier did suggest such a practice but it coupled such suggestion with this limitation: "unless in the judge's considered opinion, it would unduly break the continuity and seriously impair the coherence of the Government's proof." 417 F.2d at 1139. 3

We find no abuse of discretion on the part of the district judge in permitting such agent in this case to testify at the conclusion of the Government's case in response to the defendant's effort to impeach the testimony of one of the government's principal witnesses. There was only one part of Ingram's testimony that could have been admitted logically at the beginning of the trial without confusing the order of proof. This testimony related to the search of Parodi's apartment. There was, though, no substantial difference between the agent's testimony in this regard and that of the defendant Parodi. The defendant could not, therefore, have been at all prejudiced by the delay in offering this evidence. 4 The other evidence of Ingram logically and sequentially followed all the other evidence in the case. Ingram in his testimony, summarized certain telephone records. His summary would have been unintelligible and confusing to the jury until after the records had been proved. Moreover, the witness, in his testimony on this point, did not go beyond what was obvious in the records themselves, as those records had been proven and testified to by other witnesses in the case. Finally, Ingram in his testimony related what Ozella had told him in interviews about the narcotics operations which was the subject of the prosecution. Ozella had previously been extensively cross-examined with reference to these interviews and about his statements to agent Ingram during those interviews. The government could not have offered testimony through the witness Ingram with reference to those statements made to such witness by Ozella until after Ozella had testified and the defendants had sought to impeach his credibility with reference to these events. Such are conditions upon the admission of prior statements of a declarant consistent with his trial testimony in support of his credibility. United States v. Strand, 574 F.2d 993, 997, n. 4 (9th Cir.1978) ("... since the defendant (whose exculpatory testimony he sought to support with prior consistent statements by him) had not yet testified, the statements were not admissible as prior consistent statements under Fed.R.Evid. 801(d)(1), see 4 Weinstein's Evidence p 801(d)(1)(B), at 801-100 (1975)"). It was thus not permissible for Ingram to testify in corroboration of Ozella until after the latter had testified and been impeached in cross-examination. This is precisely the type of situation in which Frazier found it would be inappropriate to require the witness to testify first. There was accordingly no abuse of discretion by the district court and no improper prejudice suffered by the defendants in permitting Ingram to testify when he did.

The defendants further complain of what they characterize as "the Court's interjecting itself into the prosecutorial function and rehabilitating the chief prosecution witness, Larry Ozella, by strongly implying, through its questioning, that Ozella was telling the truth ...." 5 However, the role of the district judge...

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