U.S. v. Cecil

• Citation: 836 F.2d 1431
• Decision Date: 05 February 1988
• Docket Number: 83-5159 and 83-5191,Nos. 83-5148,s. 83-5148
• Parties: 24 Fed. R. Evid. Serv. 838 UNITED STATES of America, Appellee, v. Ronald CECIL, Appellant. UNITED STATES of America, Appellee, v. Patrick HADDIX, Appellant. UNITED STATES of America, Appellee, v. Odus HAYES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1431

836 F.2d 1431

24 Fed. R. Evid. Serv. 838

UNITED STATES of America, Appellee, v. Ronald CECIL, Appellant.

UNITED STATES of America, Appellee, v. Patrick HADDIX, Appellant.

UNITED STATES of America, Appellee, v. Odus HAYES, Appellant.

Nos. 83-5148, 83-5159 and 83-5191.

United States Court of Appeals Fourth Circuit.

Argued June 1, 1987.

Decided Jan. 11, 1988.

Rehearing and Rehearing In Banc Denied Feb. 5, 1988.

Alan Dershowitz, Cambridge, Mass., Barbara Gold, Baltimore, Md., Robert L. Rubinstein, Miami, Fla. (Gerson S. Horn, Beverly Hills, Cal., Dirk Bruinsma, Mission Viejo, Cal., on brief), for appellants.

J. Sedwick Sollers, III, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., John G. Douglass, Asst. U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting en banc.

DONALD RUSSELL, Circuit Judge:

This appeal arises out of a conspiracy prosecution for the transportation by boat from Lebanon into the United States of 36,000 pounds of hashish. A large number of individuals were involved. Twenty-two of these were named in the indictment. The operation contemplated delivery of the hashish at sea off the coast of Lebanon. The conspirators had acquired a "lake" vessel to take delivery of the hashish from a couple of coast-wide ships. The vessel was to proceed across the Mediterranean Sea through the Straits of Gibraltar into the Atlantic. At some point between the coast of Portugal and the Island of Madeira, the ship, which was inadequate for an ocean crossing, would rendezvous with an ocean-going ship, to which the hashish would be delivered. The ocean-going vessel was to be met off the Maryland coast by coast-wide boats, which, after the hashish had been transferred from the ocean-going vessel, would land on shore where trucks would be available to transfer the hashish to a secluded house a short distance from the shore where the hashish would be stored until it could be distributed to various areas in the United States. A force had been employed and brought to the storage area to carry out the removal of the hashish from the boats and for transporting the illegal shipments to the place of temporary storage for later distribution.

From the testimony it would appear that Harold (or Otto) Hughes, a resident of California, and a person with a long involvement in drug smuggling into the United States, was in charge of certain of the shore operations in Maryland. Hughes had an assistant to whom he delegated various duties in connection with the conspiracy, Richard Creswell. Among the tasks Hughes assigned to Creswell was the leasing in his (Creswell's) name of the house where the hashish was to be unloaded and temporarily stored until it could be distributed. An apartment in another part of the area, not too far away was also leased by Creswell to be a headquarters site for the operation and for the persons engaged in the landing and distribution of the hashish.

Sometime after the hashish had been transferred from the ships to storage, and presumably had been removed for distribution about the country, Creswell was suddenly confronted by officers when he arrived in a car at the storage area. Upon request he identified himself to the officers as John Richard Campbell and presented an expired Canadian driver's license as well as a Canadian birth certificate issued him in that name. The officers remembered hearing that a "John Campbell" had been involved in charges of drug violations. When this information was verified, they arrested Creswell. Following his arrest, Creswell signed a consent waiver for the search of the house and the officers searched the house and discovered evidence that hashish had been stored there. Creswell later entered into a plea bargain agreement with the Government under which he agreed to state truthfully his knowledge of the conspiracy. In carrying out that agreement, he gave the Government an extensive statement, in which, among other things, he named defendant Cecil as a participant in the conspiracy.

At the subsequent trial, Creswell testified as a Government witness. A number of the other conspirators had entered pleas of guilty under plea agreements as had Creswell. The three appellants herein, however, entered not guilty pleas, went to trial, and were convicted. From their convictions they have appealed.

I.

By their appeals, three questions are presented for review. Two of these have been carefully briefed and the oral arguments focused on these two issues. The first of these questions relates to an evidentiary ruling by the district judge regarding the admissibility of certain unsworn evidence relating allegedly to Creswell's credibility as a witness. Cecil sought admissibility of this evidence and, upon the denial of admissibility, he alone appeals. The second of such questions is common to all defendants, Cecil, Haddix and Hayes, and represents an attack on the constitutional validity of the use of the Maryland voters registration list as a source for the random selection of the jury panel. The third issue relates to the appeal of Hayes. He contends that the evidence was insufficient to support his conviction for conspiracy to import into the United States, and to possess with intent to distribute, hashish. We shall consider these questions separately, beginning first with the issues raised by Cecil alone.

II.

It is important in addressing the first issue to determine exactly what this issue, as pressed at trial by Cecil, was. Cecil, in his brief, has stated the issue in absolute terms: "Whether the trial court committed reversible error by excluding all testimony, cross-examination and argument relating to the mental condition of the government's key witness." He also contended that not only did the court erroneously preclude all cross-examination on this issue of Creswell's mental condition, but it also erroneously "excluded proffered expert testimony of the very psychiatrist who had examined Creswell" which was to be the basis for such cross-examination. (Italics added) Finally, he declares that the district court erred in denying his request "for a new psychiatric examination of Creswell (Transcript of 3/28/83 at 139)." Such are Cecil's claims of error. Cecil emphasized the importance of this evidence which he claimed demonstrated the want of credibility in Creswell's testimony which, he said, was the only evidence of his involvement in the conspiracy.

It is undoubtedly true, as Cecil argues, that Creswell's testimony was important, if not critical, to sustaining Cecil's conviction. Though it might be said that there was some circumstantial evidence in the record which indicated Cecil's participation in the conspiracy, the only "live" witness who testified to Cecil's actual participation was Creswell. It was but natural under those circumstances that Cecil should make every possible attempt to discredit the credibility of Creswell as a witness, by any relevant evidence he could marshal. This was particularly important if he did not intend to offer any direct testimony attacking directly the accuracy and truthfulness of Creswell's testimony. He accordingly attempted to undermine Creswell's testimony by introducing a record, which he said demonstrated Creswell was not a credible witness. It is the refusal to admit this specific material in evidence that constitutes the real claim of error on this first point.

Cecil did not actually raise the admissibility of this evidence until the trial had been proceeding for almost a week. Near the end of the Government's testimony and just before Creswell was to testify, Cecil's attorney advised the United States Attorney that he intended to use, during his cross-examination of Creswell, the record of a Rule 12.2 Notice, ¹ along with certain supporting documents, filed by Creswell's attorney in a prosecution in the Eastern District of New York under a 1981 indictment for jumping bond given in connection with a 1977 prosecution for a violation of the Controlled Substance Act. The United States Attorney promptly requested the district judge to hold an in limine hearing on the admissibility of such record as a basis for cross-examination of Creswell and to dispose of the matter before Creswell testified. Without objection from Cecil, the district judge granted the motion and suspended for the moment the trial in order to hear the motion.

At the hearing, it developed that Cecil's counsel did not actually have available the record in the 1981 case in the Eastern District of New York, which he was seeking to have admitted. Counsel, however, did say that the 1981 prosecution grew out of an earlier prosecution in 1977 in the same court of Creswell for violating the Controlled Substance Act. Creswell had jumped bond in 1977 in that prosecution and had not been apprehended until early 1981. When apprehended, he was indicted in the same court for jumping bond. It was in this 1981 fugitive prosecution in New York that Creswell's attorney filed the Rule 12.2 Notice of an intention to assert a defense of diminished capacity and insanity which is the first item the defendant Cecil sought to have admitted in evidence. The Notice was accompanied by a supporting "tentative" statement of Dr. Seymour Kuvin, who was identified as a psychiatrist. Counsel apparently had procured this statement of Dr. Kuvin and he proceeded to publish it to the court:

Although I cannot present any finite psychiatric opinions without a psychiatric examination of Mr. Creswell, from the information supplied, it is highly probable that Mr. Creswell exhibited a pathological personality disorder in his most unusual attachment to his mother.

After reading this statement of Dr. Kuvin, Cecil's counsel characterized the description of Creswell's stated disorder as an "Oedipus complex." Counsel, also, read a statement which he...