U.S. v. Beasley

• Decision Date: 13 July 1978
• Docket Number: No. 77-5302,77-5302
• Parties: 78-2 USTC P 9586 UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 626

576 F.2d 626

78-2 USTC P 9586

UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY, Defendant-Appellant.

No. 77-5302.

United States Court of Appeals, Fifth Circuit.

July 13, 1978.

Jonathan Shapiro, Boston, Mass., for defendant-appellant.

Wm. A. Kimbrough, Jr., U. S. Atty., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before SKELTON ^*, Senior Judge, and FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

For the third time, ¹ we consider the conviction of Noble C. Beasley for willful evasion of income taxes for the year 1971 ² and for conspiracy with three others to distribute heroin in Mobile County, Alabama. This review centers on whether there was a violation of the Jencks Act ³ as a result of the government's failure, albeit in good faith, to produce pre-trial statements given by a key prosecution trial witness and whether the scope of cross-examination of that witness at trial was unduly restricted. Because, under the Jencks Act, we consider results, not motive, we conclude that the government violated its statutory duty, however innocently, in failing to produce statements in the possession of a government department. We conclude that, despite the good faith effort of the U.S. Attorney to comply with the statutory mandate, and the diligence of the trial judge who conducted with fairness not only a lengthy trial but also an exhaustive post-conviction hearing, the defendant is entitled to a new trial on the heroin conspiracy charge. Because, however, we find that the failure to produce was harmless beyond reasonable doubt with respect to the tax evasion conviction, we affirm that conviction. Attempting to avoid reiteration so far as possible, we now relate the reasons for these conclusions.

I.

The heroin conspiracy count was supported principally by the testimony of two government witnesses referred to in our prior opinion: Dickie Diamond, who related at length and in detail his own sales of heroin to Beasley; and Barbara Heron, who had once borne Beasley a child, and who confirmed some of Diamond's account, and testified further that she had acted as a heroin courier for Beasley in transactions outside the scope of the conspiracy, and indeed designed to eliminate Diamond's role as Beasley's supplier. A careful examination of the lengthy record satisfies us that Mrs. Heron's testimony was ample to show a source of illicit income, but was not, by itself, adequate to support the jury verdict beyond reasonable doubt on the heroin conspiracy charge. Mrs. Heron testified that Beasley was engaged in selling narcotics, that he obtained a supply at one time from Diamond, and that she later established another contact, and brought further supplies directly to Beasley. But she did not testify to facts that would sufficiently prove the conspiracy charged to have existed among Beasley, James H. Finley, Roy S. Matthews, and Reginald Wilson. She was able only in part to corroborate Diamond's testimony; she did know the co-conspirators; she did know that they were Beasley's friends, and she was able to confirm various aspects of Dismand's account.

Thus, Diamond's testimony was indispensable. Had he not testified at all, and had the government put on its case, just as it did, but sans Diamond, the trial judge would have been obliged to direct a verdict on the heroin conspiracy count. For this reason, Diamond's credibility was also crucial.

Prior to and during the trial, the defense sought to obtain Diamond's Jencks Act statements. The Assistant U.S. Attorney performed his duty in this regard with commendable zeal. He produced a statement given by Diamond to an Internal Revenue Service agent named Doyle Coats in New York, on April 24, 1973. Diamond had said nothing to Coats about any prior statement. Because the case had originated as an Internal Revenue Service prosecution, the Assistant U.S. Attorney had not worked with Drug Enforcement Administration (DEA) agents, but he did attempt to determine from that agency whether it had any Jencks Act material. He was told that there was none; he so informed the court, and he produced no material from that agency.

Beasley sought a writ of certiorari from the Supreme Court to review his conviction. While the application for the writ was pending, an attorney in the Office of the Solicitor General, at the request of Beasley's counsel, made another inquiry of the DEA office in New York. As a result of a computer check, that office located a statement made by a DEA inspector Mortimer L. Benjamin recounting the results of interviews with Diamond held on March 16 and March 20, 1972 in a state penal institution and in the presence of another DEA agent, Weiser. Whether this statement (the Benjamin statement) was within the scope of the Jencks Act is an issue we will discuss below.

The Solicitor General suggested that the Benjamin statement might be Jencks Act material, and that the Supreme Court should grant the writ and remand the case. Responding to this suggestion, the Supreme Court in Beasley v. United States, 1976, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201, vacated the judgment and remanded the case "for further consideration in the light of the position presently asserted by the government." Upon reconsideration, we stated, "The facts revealed by the Solicitor General's investigation raised serious questions as to the correctness of the original rulings on the Jencks Act and cross-examination grounds . . . ." United States v. Beasley, 5 Cir. 1976, 535 F.2d 293, 294. We remanded "the entire case to allow the district court to determine what, if any, effect that material may have had on the conduct of the trial as a whole and its constituent counts." Id.

After the remand, the Assistant U.S. Attorney made further inquiries and learned that, on April 6, 1973, Diamond had been interviewed by DEA agent Claude Smith in Providence, Rhode Island, and that a tape recording had been made of a large part of the interview. The recording and a transcript of it (the Smith interview), 30 pages in length, were then filed in the record. Other agents testified that Diamond had been a government informant with respect to other matters in 1967. The trial judge held a lengthy evidentiary hearing that he found to be "exhaustive" and "exhausting," and considered the Benjamin report, the Smith interview, and a host of other material. He made detailed findings of fact. ⁴

During the various interviews of Diamond, the government's principal interest, at least initially, was in determining whether government employees in the DEA, the Customs office, or other agencies were engaged in illicit drug transactions, or were cooperating with persons dealing in prohibited substances. Because the Beasley case originated with the tax investigation, Diamond did not initially furnish any information with respect to it, and his comments on Beasley were only peripheral to the government's primary purpose. However, there were various conflicts in the statements made by Diamond in his interviews. These are analyzed in detail in the appendix.

II.

In Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, the Supreme Court held that the trial court erred in denying a defense request to have produced for inspection at trial and for use on cross-examination the prior statements of the government's two principal witnesses, who acknowledged that their prior statements were relevant to their testimony. In response, the Congress adopted Public Law 85-269, 18 U.S.C. § 3500, known as the Jencks Act. This familiar statute provides in part:

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.

The Jencks Act applies only to federal litigation. It implements a Congressional purpose, not a constitutional mandate. It does not discriminate between statements that contain material beneficial to the defense and those that include other material. But the government's failure to comply with the Jencks Act does not per se require a new trial. In Goldberg v. United States, 1967, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603, the court said that, if the error was harmless, a new trial would not be required. It elaborated what it meant:

Since courts cannot "speculate whether (Jencks material) could have been utilized effectively" at trial, . . . the harmless-error doctrine must be strictly applied in Jencks Act cases.

425 U.S. at 111, note 21, 96 S.Ct. at 1348, 47 L.Ed.2d at 618 (citations omitted).

In setting forth the procedures to be followed on remand to the trial court, the Supreme Court in Goldberg cited Justice Brennan's dissent in Rosenberg v. United States, 1959, 360 U.S. 367, 373, 79 S.Ct. 1231, 1235, 3 L.Ed.2d 1304, 1308, in which the court upheld the defendant's conviction notwithstanding the non-disclosure of a witness' statement, because the information contained in the statement came out on cross-examination. Justice Brennan, who was joined in dissent by Justices Black and Douglas and Chief Justice Warren, said, in a statement apparently approved by a majority in Goldberg :

Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply as to statements producible under the statute, . . . fidelity to the principle underlying Jencks and the Jencks statute requires, I think, that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would be clearly erroneous. In...