U.S. v. Latham, 88-1107

Citation874 F.2d 852
Decision Date04 November 1988
Docket NumberNo. 88-1107,88-1107
PartiesUNITED STATES of America, Appellee, v. Frederick Charles LATHAM, Jr., Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Valerie Stanfill with whom Jack H. Simmons and Berman, Simmons & Goldberg, P.A., Lewiston, were on brief, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before BOWNES and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant Frederick Latham, Jr. appeals his guilty verdict stemming from cocaine related charges. He claims that: (i) his constitutional right to be present at his own trial was violated; (ii) the court's instruction regarding possession with intent to distribute cocaine was plain error; and (iii) the government failed to disclose evidence favorable to him. We reverse the conviction on the count of possession with intent to distribute cocaine, and remand for a new trial on the count of conspiracy to possess with intent to distribute cocaine.

I. BACKGROUND

On April 16, 1987, Sergeant Harold Bickmore and Trooper Patrick Lehan of the Maine Police Department set up a meeting through a confidential informant, Mr. Geisinger, in which they bought one-half gram of cocaine for $50 from Irving Myrick. Bickmore testified that Myrick said: "[I]f I wanted more he could get it. He was able to get more but it would be from a different supplier ... that he could get me up to four ounces of cocaine." According to Bickmore, in a telephone conversation the following day, Myrick "told me what he would do is show me an ounce sample...." Bickmore and Lehan met Myrick at the appointed place. Defendant Frederick Latham, Jr. appeared on the scene for the first time when he subsequently joined them. After some discussion, an evening meeting to be attended by Latham, Myrick, Bickmore and Lehan was arranged. The meeting was held and Latham produced a bag containing just under one ounce of cocaine. Bickmore testified that both Latham and Myrick clearly stated that this sample of cocaine was for their own personal use and not for sale. At the trial, there was testimony by a government witness, David Ford, that a heavy user could go through an ounce of cocaine in 1 1/2 - 2 days. According to Bickmore, Latham told them that "it was a sample of what he could get us, if we wanted four ounces like this, the deal would go down in Portland." The officers decided not to go to Portland and arrested Latham and Myrick on the spot. Bickmore testified: "[W]e decided that we were going to arrest Myrick and Latham, at that time, because it didn't appear to us that we were going to, that they were actually going to go through with a four ounce deal or we really were not sure who they would be dealing with...."

Lehan was wearing a body wire recording device during these meetings. Bickmore testified that the tape did not operate because of some malfunction. Defense counsel was never given the tape recording, nor did the government tell him of its existence. In his brief supporting the motion for a new trial, Latham's defense counsel states that he discovered that a tape recording had been made upon reading the transcript of the guilty plea entered by Myrick.

Latham was charged on two counts: (i) conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C), and Sec. 846, and (ii) possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C), and 18 U.S.C. Sec. 2.

Latham's jury trial commenced on September 9, 1987. On that day, three government witnesses testified and two of them were cross-examined. In the afternoon, Latham stated that he was not feeling well and the judge recessed the trial early at 3 p.m., ordering that the trial be reconvened the next morning, September 10, 1987, at 9:00 a.m. On September 10, 9:00 a.m., Latham did not appear for the trial. In chambers, the court inquired as to Latham's whereabouts, and Latham's attorney stated that he did not know where Latham was. Latham's attorney then tried unsuccessfully to reach Latham by telephone. The court revoked Latham's bail and issued a bench warrant for his arrest. The chambers conference was reconvened at 10:13 a.m. and the court noted that in the interim the Assistant United States Attorney had called three hospitals, Maine Medical Center, Mercy Hospital, and Osteopathic Hospital, and four jails, and that Latham was not at any of these places. The judge also told counsel that the United States Marshal's Office had been informed by a clerk at United Airlines that at 7:10 a.m. Latham had boarded a United Airlines plane at the Portland, Maine airport, bound for Chicago, and that Latham was expected to be on the ground at O'Hare Airport in Chicago to connect with a flight leaving at 10:55 a.m. for Little Rock, Arkansas. Based on this information, the judge instructed the Marshal to apprehend Latham.

Latham's attorney asked for a continuance of the trial as it appeared that Latham would very shortly be arrested and returned for trial. The court denied the motion for a continuance. Concluding that the defendant had voluntarily absented himself from the trial, the court, over defense counsel's objection, ordered, pursuant to Fed.R.Crim.P. 43, that the trial recommence in Latham's absence at 10:30 a.m. The trial had been delayed a total of 1 1/2 hours.

A significant portion of the trial was conducted on the second day in Latham's absence: one of the government's key witnesses, David Ford, was cross-examined; closing arguments were made; and jury instructions were given. In the afternoon, the jury found Latham guilty on both counts. Latham was sentenced to ten years on each count, and five years of supervised release on each count, said sentences to be served consecutively. Latham duly appealed his conviction.

On September 21, 1987, Latham moved for judgment of acquittal or, in the alternative, for a new trial. In his memorandum in support of these motions, 1 Latham's attorney argued that Latham did not attempt to flee, but rather, that he was incapacitated and unable to attend the last day of the trial. The attorney stated in his memorandum that he had visited Latham on September 15, 1987, at the Maine Medical Center where Latham had been hospitalized as a result of a cocaine overdose. Latham's attorney further stated that Latham told him at this time that he fully intended to attend his trial, but that he became so nervous about the trial that he ingested a large quantity of cocaine, left his room, and remembered nothing after that. Latham's attorney also included in his memorandum facts which indicated that the defendant might have been forced to ingest the cocaine involuntarily: that when Latham was found he was covered with recent bruises and cuts and appeared to be beaten quite badly; that his family and attorney were not allowed to visit him in the hospital for "security reasons" even though the doctors were giving him only a 25% chance of survival; and that the Assistant United States Attorney had stated that "there's more going on here than you know about." In a letter to the court dated December 4, 1987, the defense attorney again raised the issue that coercion or duress may well have occasioned the overdose and that fear was preventing Latham from being forthcoming about the circumstances surrounding the incident. The memorandum further stated that Latham denied buying an airplane ticket.

On December 31, 1987, the court denied Latham's motion for judgment of acquittal or for a new trial. Latham's attorney had repeatedly requested an evidentiary hearing in order to establish the cause of his absence from trial: on October 19, 1987 in his reply brief on the post-trial motions; on November 13, 1987 at the sentencing hearing; and again in a letter to the court on December 4, 1987. The court refused to hold such an evidentiary hearing.

There is no dispute that the information the court had received on September 10 that Latham had taken a plane to Chicago was false. Latham had been hospitalized in the Maine Medical Center in Portland, Maine in critical condition, due to an overdose of cocaine. The facts surrounding this overdose have not been fully developed on the record because Latham's motions for an evidentiary hearing were denied. The record does, however, show that both at sentencing and when the court ruled on the post-trial motions, the court was aware that the reason for Latham's absence was cocaine intoxication and not a flight to Chicago. In a letter to the district judge dated September 23, 1987, the Assistant United States Attorney stated that Latham had been transferred from the Maine Medical Center to the Federal Prison Hospital in Springfield, Missouri. The post-trial motion briefs by both the defendant and the government, dated September 21 and October 5, 1987, respectively, comment extensively on the cocaine overdose. At the sentencing hearing the government stated that Latham had ingested "a substantial quantity of cocaine during the trial," and defense counsel stated that "part of the motion deals with the situation of the overdose and cocaine intoxication." In imposing sentence, the court stated that it had "reviewed fully the written presentence investigation report ... dated October 6 from Mr. Hubble, case manager, Federal Bureau of Prisons, where Mr. Latham was treated for the drug overdose...."

There can be no doubt that the court knew, at the time of sentencing and when he denied the motion for acquittal or a new trial, that the defendant had not voluntarily absented himself from the second day of trial by fleeing on an airplane, but was in a hospital in critical condition due to an overdose of cocaine.

II. A DEFENDANT'S RIGHT TO BE PRESENT AT...

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