U.S. v. Allen
| Decision Date | 01 October 1986 |
| Docket Number | No. 85-1717,85-1717 |
| Citation | 798 F.2d 985 |
| Parties | 21 Fed. R. Evid. Serv. 596 UNITED STATES of America, Plaintiff-Appellee, v. Robert Neal ALLEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Irl B. Baris, St. Louis, Mo., for defendant-appellant.
Bruce Reppert, U.S. Attorney's Office, East St. Louis, Ill., for plaintiff-appellee.
Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.
This court is called upon to address the scope and administration of the Jencks Act, 18 U.S.C. Sec. 3500, which requires a federal prosecutor to produce for the defense any statement or report made by a witness which relates to that witness's testimony on direct examination and, if contested, to submit the statement or report to the court for an in camera inspection. In this case the district court did not require the United States Attorney to produce the alleged Jencks material, nor did the court choose to examine the material in camera, purportedly because of an insufficient showing of relevancy and the prosecutor's assurance that all relevant material had been turned over. We review and outline the threshold requirements for making a Jencks Act request, vacate the decision below, and remand for an in camera hearing to determine the relevancy and materiality of the documents. We affirm on all of the defendant's remaining claims.
Robert Allen was a welder for the Pipe Fitters Union for thirty years. In 1947, thirty-six years before he was arrested for selling a car-bomb to an undercover informant for the FBI, Allen had pled guilty to a charge of bank robbery. In 1982, during the course of his work as a welder, Allen met Jesse Stoneking, who claimed to be the right-hand-man of the leader of organized crime activity in southern Illinois. Stoneking had been imprisoned but was released after agreeing to become an undercover informant for the FBI. Stoneking's mission was a general one: he was to obtain information about criminal matters around St. Louis and southern Illinois. He was paid $2,700 a month for taperecording conversations he had with his former associates and, in the case of Allen, people he met during his almost twenty months of undercover work.
The investigation of Allen began when Stoneking observed Allen building a device to defeat a burglar alarm. As Allen was to do often later, he bragged about his expertise and told Stoneking that he knew how to build bombs. With the approval of the FBI, Stoneking told Allen that he would like Allen to build him a bomb. At first, Stoneking wanted a bomb to wreck a building, but later he decided that he would rather have a car-bomb with a remote-control detonating device. Allen told Stoneking that he could build a bomb that could be detonated from eighteen miles away and that he had built such a bomb for $7,000. Allen told Stoneking that his nickname was "little bomber" and that he had recently made a car-bomb for someone in Toledo. Allen agreed to build a car-bomb for Stoneking for the bargain price of $6,000 and on August 13, 1983, Stoneking and Allen drove from Illinois to Kentucky and purchased dynamite. Three days later Allen delivered to Stoneking a sophisticated car-bomb constructed of ten sticks of dynamite and a remote control detonating device.
Stoneking gave Allen $6,000 in cash for the bomb, but according to Allen, and unbeknownst to the FBI, arranged to receive much of the money back as a kickback. This was part of what Allen alleges was a scheme of coercion by Stoneking. While Allen did not deny the substantive crimes he was accused of, his defense was based on his knowledge of the reputation and connections of Stoneking, including a murder Stoneking allegedly had committed. Allen stated that he had no choice but to build the bomb after Stoneking threatened him and his sister.
Allen was tried and convicted on four counts of a five count indictment. The first count of conspiracy to transport explosives in interstate commerce was dismissed, but Allen was convicted of the following: Count II: Interstate transportation of explosive material, in violation of 18 U.S.C. Secs. 842(a)(3)(A) and 844(a); Count III: Possession of explosives by a convicted felon, in violation of 18 U.S.C. Secs. 842(i) and 844(a); Count IV: Unlawful manufacture of a destructive device, in violation of 26 U.S.C. Secs. 5802, 5822, 5845(a) and (f), 5861(f) and 5871; and Count V: Unlawful sale of explosives, in violation of 18 U.S.C. Secs. 842(a)(1) and 844(a). The district court sentenced Allen to a term of ten years on Count IV and five years on Count V; the sentence on Count V to run consecutive to the sentence imposed on Count IV. The court suspended the sentence on Counts II and III and placed Allen on probation for five years for each count, to run concurrently with each other but consecutive to the sentences imposed on Counts IV and V.
Allen appeals six issues that arose during his trial. First, he contests the district court's imposition of separate sentences on each of the four counts he was convicted of even though all four counts arose out of the same set of facts. Second, Allen claims that he was charged with the criminal offense of transporting explosives by a convicted felon solely for the purpose of getting his thirty-six year old conviction before the jury and that the district court abused its discretion in not severing that portion of his trial. Third, Allen alleges that the district court erred in failing to make an independent determination of the accuracy of the government-prepared transcripts of the conversations between Allen and Stoneking that Stoneking secretly taped. Fourth, Allen alleges the district court erred in the method it used to tell the jury that there was insufficient evidence to submit Count I, thus implying that there was enough evidence to convict on the other four counts. Fifth, Allen argues that the district court erred in refusing to instruct the jury on the issue of coercion. Finally, Allen's sixth claim is that the district court erred in failing to require the government to deliver Jencks material to him or to the court for an in camera inspection.
Because we remand only on Allen's sixth claim, the violation of the Jencks Act, we begin there.
The government alleges that what Allen is seeking is the "production of all or substantially all of the government's case report under the Jencks Act (18 U.S.C. Sec. 3500) pertaining to unrelated cases developed through the use of Mr. Stoneking." Appellee's Brief, p. 21. The alleged motivation for seeking this information is that Allen's counsel was representing a defendant in another related case and that the information Allen's counsel was seeking could be used to the advantage of that other client. Three weeks before Allen's trial the United States Attorney informed the district court by letter that this other client was accused of participating in the murder of a St. Louis crime boss whose car was destroyed by a remote control car-bomb several years before Stoneking met Allen. The government alleges that Allen took "credit" for producing that bomb in a taped conversation with Stoneking. Thus, both of Allen's counsel's clients were implicated in the same car bombing. Allen was admonished by the district court that his counsel might have a conflict, but he consented to his counsel's continued representation. The issue was not appealed.
During Allen's trial an F.B.I. Agent testified on direct examination about his conversations with Stoneking prior to Stoneking's release from prison and his stint as an undercover agent. Allen's counsel cross-examined the F.B.I. Agent and asked him about these conversations:
Q. Now it's customary, is it not, in your agency in the Federal Bureau of Investigation to make reports of your activities, isn't it?
A. Yes it is.
Q. And did you make out any reports concerning the negotiations that you had with Mr. Stoneking leading up to his release from the penitentiary?
A. No I didn't.
Q. Did any other agent do that?
A. No.
Q. That is unusual, isn't it, not to make reports?
A. Not concerning talking to cooperative witness. I made a report of whatever he told me concerning any criminal information that he gave me.
Q. You mean before or after his release?
A. Some were before.
Q. So you did make some reports then of the discussions that you had with him before he was released from the penitentiary?
A. Yes I did.
Q. And those are the same conversations that you testified to earlier that you had with him while he was in the penitentiary?
A. Yes.
When Stoneking was put on the stand, Allen's counsel in cross-examination sought to bring out details concerning Stoneking's negotiations with the F.B.I., arguably to support his "coercion" theory of defense.
Q. Okay. Then after you got out, you had some numerous conversations with the F.B.I., is that right?
A. Yes I did.
Q. And you gave them information as to what you knew about the activities in this area, right?
A. Yes, sir.
Q. And during that time, were they making notes when you would talk with them?
A. Yes, sir.
Q. And these are the conversations that you mentioned this morning when you testified about the various interviews that you had with F.B.I. agents, correct?
A. Yes, sir.
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