U.S. v. Boyd, 94-5156

• Citation: 53 F.3d 631
• Decision Date: 05 May 1995
• Docket Number: No. 94-5156,94-5156
• Parties: 42 Fed. R. Evid. Serv. 196 UNITED STATES of America, Plaintiff-Appellee, v. Richard Edison BOYD, a/k/a Jake Boyd, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 631

53 F.3d 631

42 Fed. R. Evid. Serv. 196

UNITED STATES of America, Plaintiff-Appellee, v. Richard Edison BOYD, a/k/a Jake Boyd, Defendant-Appellant.

No. 94-5156.

United States Court of Appeals,

Fourth Circuit.

Argued March 6, 1995.

Decided May 5, 1995.

ARGUED: James Joseph Nolan, Jr., Pierson, Pierson & Nolan, Baltimore, MD, for appellant. Jefferson McClure Gray, Asst. U.S. Atty., Baltimore, MD, for appellee. ON BRIEF: Lynne A. Battaglia, U.S. Atty Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

James G. Warwick, Asst. U.S. Atty., Baltimore, MD, for appellee.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge NIEMEYER and Senior Judge BUTZNER joined.

OPINION

HAMILTON, Circuit Judge:

Richard Edison Boyd (Boyd) appeals his conviction on two counts of conspiracy to possess with intent to distribute and to distribute marijuana, see 21 U.S.C.A. Secs. 841(a)(1) and 846 (West 1981 & Supp.1994), and three substantive counts of possession with intent to distribute marijuana, see 21 U.S.C.A. Sec. 841(a)(1) (West 1981 & 1994). We affirm.

I.

During the late 1980s, Boyd lived an illegal but lucrative double life. Although he held a regular job at the Rohm & Haas plant in Galveston Bay, Texas, the evidence at trial established that Boyd also supplied large quantities of marijuana to James Todd Hibler in Maryland. Boyd obtained the marijuana he sold from two different sources in Baytown, Texas. One source was Manual Jaramillo (Jaramillo); the other was brothers Joseph and Arthur Nieto.

The government's evidence established at trial that from December 1988 through November 1989, Boyd, through various middlemen, namely, Scott Jordan (Jordan), Aubrey Clevenger (Clevenger), and Scott Ianaro (Ianaro), supplied marijuana to Hibler. Generally, the marijuana, in quantities of forty to sixty pounds, was transported by truck from Texas to Maryland.

On October 7, 1993, Boyd, Jaramillo, and brothers Joseph and Arthur Nieto were indicted for conspiracy to possess with intent to distribute and to distribute marijuana and other related offenses. After Jaramillo pled guilty to conspiracy to possess with intent to distribute and to distribute marijuana, see 21 U.S.C.A. Secs. 841(a)(1) and 846 (West 1981 & Supp.1994), the grand jury returned a superseding indictment. The superseding indictment contained six counts, charging two conspiracies--one involving Hibler, Jordan, and Boyd being supplied by Jaramillo and the second involving Hibler, Jordan, Clevenger, and Boyd being supplied by the Nieto brothers. In addition to the two conspiracies, the indictment charged Boyd with three substantive counts of possession with intent to distribute marijuana, see 21 U.S.C.A. Sec. 841(a)(1) (West 1981 & 1994). The sixth count related solely to Joseph Nieto. Boyd and the Nieto brothers proceeded to trial, and after the jury was sworn, the Nieto brothers entered into a plea agreement whereby they pled guilty to the conspiracy count that related to them. The jury returned its verdict on November 8, 1993, finding Boyd guilty on the five counts of the superseding indictment that related to him. The district court sentenced Boyd to seventy-eight months' imprisonment and four years supervised release. Boyd filed a timely appeal raising numerous issues. While we have carefully considered them all, we address only three, concluding that the others are completely without merit.

II.

First, Boyd argues his conviction should be reversed because the district court erred in refusing to require the government to produce eleven reports prepared and signed by Drug Enforcement Administration (DEA) Case Agent Dennis Howell (Howell) during the investigation of the charged conspiracies, and in failing to conduct an in camera inspection to determine if the reports were producible pursuant to the Jencks Act, 18 U.S.C.A. Sec. 3500 (West 1985). We find Boyd's argument to be without merit.

The Jencks Act provides that after a witness for the government has testified on direct examination in a criminal case, the government must "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." 18 U.S.C.A Sec. 3500(b) (West 1985) (emphasis added); United States v. Snow, 537 F.2d 1166, 1168 (4th Cir.1976) (the Jencks Act only applies to an "existing prior statement of a government witness concerning matters covered by direct examination"). Under the Jencks Act, a "statement" is:

(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (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 and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded or transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C.A. Sec. 3500(e). "Notes taken by ... government agents during a pretrial interview of a witness may qualify as a 'statement' of the witness under Sec. 3500(e)(1) if the witness has reviewed them in their entirety--either by reading them himself or by having them read back to him--and formally and unambiguously approved them--either orally or in writing--as an accurate record of what he said during the interview." United States v. Smith, 31 F.3d 1294, 1301 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1170, 130 L.Ed.2d 1124 (1995).

If the government refuses a defendant's request for material under the Jencks Act on the basis that the material sought is not in fact a statement under the Jencks Act, then the district court is obligated to conduct an independent inquiry into the circumstances surrounding the materials sought by the defendant in order to make its own determination. Id. at 1302. District courts have " 'substantial latitude' " in deciding what this inquiry will entail. Id. (quoting Matthews v. United States, 407 F.2d 1371, 1376 (5th Cir.1969), cert. denied, 398 U.S. 968, 90 S.Ct. 2177, 2178, 26 L.Ed.2d 554 (1970)). Although we have opined that this inquiry normally should begin with an in camera inspection of the materials sought, we have observed that the district court may dispense with this exercise if "it is clear that they cannot be Jencks Act material." Id. at 1302. In other words, a defendant must provide some foundation for his Jencks Act request before the district court is required to make an in camera inspection. See United States v. Nickell, 552 F.2d 684, 689-90 (6th Cir.1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2233, 56 L.Ed.2d 402 (1978) (Holding that it is not an abuse of discretion for the district court to refuse either to order the government to produce or to screen materials in camera if the defendant fails to provide a foundation for the government to turn over any materials as Jencks Act statements, or for the court to screen any materials.). Such a foundation, typically established through cross examination of the witness whose statement the defendant is attempting to obtain, requires the defendant to specify with reasonable particularity that material which may be a Jencks Act statement exists. See United States v. Robinson, 585 F.2d 274, 280-81 (7th Cir.1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979). Whether, and to what extent, the material sought must be produced are questions of fact to be decided by the district court and will not be overturned unless clearly erroneous. See United States v. Medel, 592 F.2d 1305, 1316 (5th Cir.1979).

Boyd sought from the government eleven reports prepared and signed by Howell that the government asserts summarized meetings with various witnesses, listed dates when witnesses testified before the grand jury, recorded general case development information such as the dates when indictments were returned on various co-defendants and when they entered guilty pleas. The record reveals that the district court's determination that these reports were not producible under the Jencks Act was not clearly erroneous because Boyd failed to provide even the barest of foundation for his assertion that the information contained in the eleven reports related to Howell's testimony on direct examination.

Howell's direct examination consisted of only forty pages in the lengthy trial transcript and was primarily limited to: (1) how he obtained the hotel and telephone records the government subsequently introduced into evidence; (2) how he established Boyd's home and work telephone numbers for 1989 and (3) authentication of two charts detailing calls placed by Ianaro and Hibler to Boyd's home and work telephone numbers between June and October 1989. Additionally, Howell very briefly testified that he had made several expense payments totaling $500 to Ianaro and Jordan during the investigation; that he initially debriefed Jaramillo in the latter part of October 1992; and that his practice was to talk to witnesses one at a time.

In contrast to the government's limited direct examination of Howell, Boyd's cross examination strayed far beyond the scope of the government's direct examination. ¹ On cross-examination, Boyd asked Howell if he recalled the dates of every report that mentioned the name "Boyd." Without consulting any reports, Howell testified that he had prepared ten or eleven reports during his work on the investigation between September 1991 and March 1993 and the reports contained Boyd's name. Aside from eliciting the general dates that Howell prepared the reports, however, Boyd never asked Howell any questions about their contents or even their general subject matter.

Only once did Boyd request the production of a specific report prepared by Howell. After Howell mentioned he had prepared a report in September 1991, following a meeting with Ianaro,...