U.S. v. Tindle, 84-5036

Decision Date29 December 1986
Docket NumberNo. 84-5036,84-5036
Citation808 F.2d 319
Parties22 Fed. R. Evid. Serv. 407 UNITED STATES of America, Appellee, v. Isaac James TINDLE, a/k/a I.J., Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Henry W. Asbill (Timothy D. Junkin; Asbill, Junkin & Myers, Chtd., on brief), for appellant.

Ty Cobb, Asst. U.S. Atty. (J. Frederick Motz, U.S. Atty., Donna H. Triptow, Asst. U.S. Atty., on brief), for appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

This case was held in abeyance pending the Supreme Court's decision in Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In view of the Supreme Court's recent decision in that case, we remand for the district court to ascertain whether blacks were systematically excluded from the jury in violation of the Equal Protection Clause through the government's use of its peremptory challenges. Since there may be a retrial depending on the district court's finding and since a number of other issues were raised we express our view respecting them to promote a final and definitive resolution of this case.

I

Isaac James Tindle appeals his conviction for heroin related offenses. On April 20, 1983, Tindle was indicted with thirteen other individuals in the United States District Court for the District of Maryland. Tindle was charged with 1) conspiracy to possess and distribute heroin (21 U.S.C. Sec. 846); 2) actual distribution of heroin on June 8, 1982, September 15, 1982, September 30, 1982, and November 17, 1982 (21 U.S.C. Sec. 841(a), 18 U.S.C. Sec. 2); and 3) unlawful use of a communications facility (a telephone) in furtherance of the conspiracy (21 U.S.C. Sec. 843(b), 18 U.S.C. Sec. 2). At his arraignment on April 26, 1983, Tindle pled not guilty to all charges. He was ordered held on a twenty million dollar surety bond.

On June 22, 1983, Tindle was charged, in a separate indictment, with conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. He was arraigned on June 30, 1983 and, again, pled not guilty. 1 Pursuant to the government's motion, the two indictments were ordered joined for trial. Tindle was tried alone (the other twelve co-defendants were either fugitives, had pled guilty, or had been severed). The trial began on October 11, 1983. On November 10, 1983, the jury found Tindle guilty of all counts in the original indictment. He was acquitted of the continuing criminal enterprise charge contained in the second indictment.

On January 5, 1984, Tindle was sentenced to an aggregate prison term of fifty years. Judge Harvey also imposed a ten year Special Parole Term and a $150,000 fine.

II

In 1971, Tindle was convicted of selling heroin. After his release from prison in 1976 through April 1983 (when he was indicted), Tindle allegedly acquired a fortune selling heroin in Washington, D.C. Tindle's drug operation was highly sophisticated and extensive. It was also marked by widespread violence.

The documentary and financial evidence admitted at trial established that Tindle had a lavish lifestyle presumably made possible by his involvement with heroin. The government demonstrated that in 1977, following his release from prison, Tindle spent $18,878.05. In 1978, the evidence revealed that Tindle spent $79,183.04. The figure for 1979 was $155,863.56 and in 1980, 1981, and 1982 he spent $365,909.74, $438,867.07, and $282,825.36, respectively. The government further informed the jury that a search of Tindle's home revealed jewelry, furs, expensive furnishings, multiple sky lights and fireplaces, and other trappings of wealth.

To substantiate its contention that Tindle's flamboyant lifestyle stemmed from his heroin operation, the government introduced, inter alia, "narcotics debt sheets" found in Tindle's basement fireplace which purported to list numerous high-priced drug transactions. The government also admitted large quantities of cutting material, various drug paraphernalia and two handguns found in the home of one of Tindle's lady friends. In addition, the jury learned that searches of the residences of Tindle's principal associates uncovered additional narcotics debt sheets, weapons, and bulletproof vests.

The government then sought to establish that Tindle, with the assistance of his attorney, Herbert Suskind, attempted to secret his drug-generated income by engaging in "under the table" payments in connection with certain real estate transactions, reporting substantial gambling income on his tax returns, and securing discarded racetrack tickets in an effort to support his gambling claims. Tindle also allegedly lent money, using Suskind as an intermediary, to an independent businessman who repaid Tindle with cash and created fraudulent W-2 income forms for 1980-81. The forms stated that Tindle earned his living as a gas station attendant.

III

We will address Tindle's assignments of error seriatim. Tindle first contends that the district court committed reversible error in refusing to require the government to copy and release to the defense counsel all of the business and financial records of Tindle in its possession. Tindle claims that he was entitled to said records pursuant to Fed.R.Crim.P. 16(a)(1)(A). 2 In a related argument, Tindle contends that the district court committed reversible error by refusing to grant a ninety day continuance; the one week continuance permitted allegedly rendered it impossible for defense counsel to pore over the documents and fully prepare himself for trial.

The appellant moved the court to order the government to copy and release all of Tindle's financial records in the government's possession. The appellant offered to bear the reproduction costs. The government claimed that it had already delivered thousands of documents to Tindle and that it would be unwieldy and fruitless to copy all of the other documents requested. The government asserted that it had already reviewed the materials and had determined that they did not contain any exculpatory information. The government suggested, however, that if Tindle or his attorney deemed any documents relevant, the government would furnish them with copies. On August 19, 1983, the district court denied Tindle's motion and ruled that Tindle, his lawyer and either Suskind or Hughes (Tindle's real estate partner and advisor) could view the financial documents in the prosecutor's office. Mrs. Tindle was not permitted in the room with her husband. The district court further ruled that Tindle should be supplied with copies of documents he or his attorney determined were helpful to his defense.

In September, Tindle again moved the court to order the government to copy and release all of the business records and/or to grant a ninety day continuance to allow defense counsel to review said records. The district court did not order the copying and release of all documents, but it did modify its August order in the appellant's favor. The district court ruled that Mrs. Tindle would now be able to peruse the documents in the same room (at the same time) as her husband and that DEA agents should not be permitted in the room while Tindle and his entourage were viewing the documents; only U.S. Marshals were permitted in the conference room. The district court also granted the appellant an eight day continuance to enable his counsel further to prepare for trial.

The district court's rulings were reasonable under the circumstances. Although he did not order the government to copy the documents (at the appellant's expense), he permitted the appellant to have access to all of the records and to copy those he deemed relevant. The district court took note of the fact that between its August and September orders, Tindle did not take many trips to examine the documents and did not have many copies made. The district court appears to have viewed the infrequent trips as an indication that the documents would not greatly aid Tindle's defense and that defense counsel was simply asserting a need for the entire mountain of documents as a dilatory tactic.

Not only did Tindle's apparent lack of interest in the documents (as evidenced by the few trips to the prosecutor's office) influence the court to refuse Tindle's request for copies of the thousands of records but it also apparently influenced the district court to disallow a continuance for longer than eight days. In other words, the district court presumably regarded the appellant's plea for more preparation time with skepticism since the defense counsel had failed to make effective use of the discovery time already granted.

In sum, in light of the fact that defense counsel failed to take full advantage of his ability to review and copy documents that would perhaps have aided his client, the district court did not abuse its discretion with regard to the discovery matters and the continuance. 3 See Fed.R.Crim.P 16(d)(1). See also United States v. Sellers, 658 F.2d 230, 231 (4th Cir.1981) ("Only when a court's refusal to grant a motion for a continuance can be deemed arbitrary and fundamentally unfair will such a refusal be deemed an abuse of discretion.").

Tindle next asserts that the government did not in its plea agreement entered with Suskind require Suskind to testify at trial solely as a device to preclude Suskind's use as a witness for the defense. Tindle additionally claims that the government acted improperly in refusing to grant Suskind use immunity since such failure resulted in the suppression of exculpatory evidence. Tindle further asserts that the government requested the district court to postpone the sentencing of Suskind until after Tindle's trial in order to intimidate Suskind and render him unavailable as a witness.

A. The Plea Agreement and the Timing of Suskind's Sentencing

Although Tindle endeavors to create a very dramatic scenario in which the government and district...

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