Matthews v. United States

• Decision Date: 03 March 1969
• Docket Number: No. 24491.,24491.
• Citation: 407 F.2d 1371
• Parties: Charles Edward MATTHEWS, Ezekiel Brown and Raymond Cook, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.2d 1371 (1969)

Charles Edward MATTHEWS, Ezekiel Brown and Raymond Cook, Appellants, v. UNITED STATES of America, Appellee.

No. 24491.

United States Court of Appeals Fifth Circuit.

March 3, 1969.

COPYRIGHT MATERIAL OMITTED

Clyde Woody, Marion Rosen, Houston, Tex., Charles R. Burton, Austin, Tex., for appellants.

Ernest Morgan, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before GOLDBERG and CLAYTON^*, Circuit Judges, and HANNAY, District Judge.

HANNAY, District Judge:

This appeal is by three of seventeen individuals charged by indictment with conspiracy to violate the federal narcotic laws. Title 21, U.S.C.A. Section 176a; Title 26 U.S.C.A. Sections 4741(a), 4744 (a) (1), 4744(a) (2), and 7237. The trial below involved the three Appellants here and one of the other alleged conspirators. Disposition of the charges against the remaining defendants for the most part followed the granting of separate trials or the entry and acceptance of pleas of guilty.

The geographical area of the alleged conspiracy reached from the Mexican border at points near Laredo, Texas and Los Angeles, California to the New York-New Jersey area on the eastern seaboard of the nation. The general conspiratorial scheme involved the illegal and clandestine importation of large quantities of marihuana into this country at the indicated points on the Mexican border and the transportation thereof to the New York-New Jersey area. The alleged conspiracy dated from November 2, 1961 to the time of the indictment on or about March 10, 1966; the eighteen alleged overt acts of conspiracy dated from on or about November 13, 1961 to on or about November 22, 1965. The center of the conspiracy was in the New York-New Jersey area from whence the orders for the contraband were made. It was there that the Appellant Raymond Cook allegedly became involved in the conspiracy after dissatisfaction developed over the manner in which arrangements were being made for the transportation of the contraband. The Appellants Charles Edward Matthews and Ezekiel Brown were allegedly the main suppliers in the Los Angeles area and engaged occasionally in the transcontinental deliveries. Such is the import of the overt acts of conspiracy charged against these Appellants.

The Appellants Brown and Matthews bring on a wide ranging attack against their convictions and raise issues pertaining to both the merits and the constitutionality of the trial. Appellant Cook's attack is not dis-similar thereto and has been added to by a Supplemental Brief filed by Cook's appellate counsel at the direction of the Court and about which more later.

A.

THE APPEAL OF APPELLANTS BROWN AND MATTHEWS:

I.

1. The alleged violation of their rights under the Jencks Act, Title 18 U.S.C.A., Section 3500, for production of statements and reports of witnesses. The Act states:

"(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpoena discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.

(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means —

(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement."

a. The government called one Edward Faison to prove the existence of the conspiracy. Faison testified that he had repaired certain vehicles owned and operated by the co-defendant Albert Hillaire. In response to the trial judge's inquiry, the United States Attorney stated that one Mr. Murphy, the principal investigator for the government, had prepared a memorandum as a result and after the interview with Mr. Faison. (Emphasis added throughout.) No statement had been signed by Mr. Faison. The trial judge called for and inspected the Murphy memorandum in camera. This memorandum had been dated practically three weeks after the interview with Faison. The record does not show that it was either adopted or approved by Faison. The trial judge later announced orally that he had examined the notes and declined to turn them over to Appellants' counsel.

b. One Wynn L. Lyday testified for the government concerning the purchase of a vehicle; this evidence was material in establishing the conspiracy. On cross-examination Lyday testified that he was interrogated by a government agent who took notes at the end and then asked him if they were correct.

When this arose as a Jencks Act issue at the trial, the trial judge found that the notations were in fact made, that some of them were read back to the witness and verified, the witness was not sure that the entire statement was read to him for verification, but that what was read to him was verified. In short, the witness did not adopt the statement. Subsequently, the witness testified for the government that he did not know how many pages of notes were taken by the agent, that he did not personally read the notes, that the government agent did ask him to confirm or verify some of his answers. Not remembering exactly, the witness did not think that the agent had read the notes in their entirety to him for confirmation.

c. The government's principal witness in the case, William Barber, had been interrogated by Murphy. Appellants Brown and Matthews contend that the government refused to produce all of the documents which the prosecution had in its possession. These appellants received a ten-page document which was identified as the testimony of William Barber. The record shows that this document contained all of the information given by Barber which the prosecution then possessed and information in addition to that which had been secured by Murphy. This document is before this Court. On this point Murphy's testimony is to the effect that he took notes from Barber but not verbatim notes and did not read them back to Barber at the time; that these notes were thrown away after he put them in the form of a report. This report was in his own handwriting and was later typed by a secretary. The notes were not reviewed by Barber. The interviews were not recorded stenographically. Murphy did not, according to his testimony, review his notes during the course of conversation with Barber.

d. Appellants object to the non-production of grand jury minutes. These minutes had been taken before a state grand jury in New York for a New York state prosecution. There were two government witnesses in this category. It appears that the minutes pertaining to one of them were not available; in the other instance, they were not required to be produced by the trial court.

2. Any statement within the purview of the Jencks Act must be produced upon demand by the defense where the witness has testified as a government witness. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287; Campbell v. United States, 365 U.S. 85, 81 S.Ct. 413, 5 L.Ed.2d 428. The purport of the Jencks Act as it is particularly relevant here was stated by the late Mr. Justice Frankfurter in Palermo v. United States, supra, at 350, 79 S.Ct. at 1223:

"* * * One of the most important motive forces behind the

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