U.S. v. Crowell
| Decision Date | 17 November 1978 |
| Docket Number | 76-2325 and 77-1504,76-2324,Nos. 76-2323,s. 76-2323 |
| Citation | 586 F.2d 1020 |
| Parties | UNITED STATES of America, Appellee, v. Alfred David CROWELL, Appellant. UNITED STATES of America, Appellee, v. Donal Jarrett GILLESPIE, Appellant. UNITED STATES of America, Appellee, v. Michael Marion ROBERTSON, Appellant (two cases). |
| Court | U.S. Court of Appeals — Fourth Circuit |
Lee Gordon, Baltimore, Md. (Karl H. Goodman, Gordon & Goodman, Baltimore, Md., on brief), for appellant in 76-2325 and 77-1504.
David B. Lamb, Washington, D. C. (Patrick J. Moran, Lamb, Halleck & Keats, Washington, D. C., on brief), for appellant in 76-2323.
Gary E. Klein (Kenneth E. Conklin, Rockville, Md., on brief), for appellant in 76-2324.
Robert B. Schulman, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and PHILLIPS, Circuit Judges.
Defendants, Alfred David Crowell, Donal Jarrett Gillespie and Michael Marion Robertson, were convicted by a jury of conspiracy to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense the controlled substance phencyclidine (PCP), in violation of 21 U.S.C §§ 846 and 841(a)(1). Crowell was also convicted of four separate charges of traveling in interstate commerce in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3). 1
Each has appealed and collectively they assign ten errors committed during their trials and in rulings on pretrial motions which they assert require reversal of their convictions. All claim error in the district court's alleged failure to interrogate the non-sequestered jury about its exposure to prejudicial publicity. Crowell claims error in the district court's denial of his motion to suppress the fruits of the warrantless search of his trash can, the search of his truck as authorized by a warrant, and the search of his residence, again conducted under warrant. He also asserts that the district court improperly denied him standing to challenge the validity of the search of four separate premises and improperly denied him a hearing on his claim of illegal electronic surveillance, and that the district judge erroneously refused to disqualify himself upon Crowell's affidavit of bias and prejudice. Robertson asserts that the indictment against him should be dismissed in accordance with a government promise of immunity. Gillespie contends that the Jencks Act was violated when the statement of a witness was not furnished him because it had improperly been destroyed. He also contends that the testimony of a Drug Enforcement Agent should have been stricken because the agent failed to keep his notes concerning the matter about which he testified and that it was error for the district court to deny his pretrial motion for severance. Finally, he asserts that the evidence was legally insufficient to convict him.
We see no reversible error in the numerous contentions that are advanced and we affirm.
The government's evidence consisted chiefly of the observations of agents who had conducted surveillance of various defendants and the fruits of several searches of places where PCP was manufactured and stored. There was also testimony from persons who participated in the operation of the conspiracy.
In support of the conspiracy count of the indictment, the government's evidence showed the existence of a scheme to manufacture an enormously profitable controlled dangerous substance, phencyclidine (PCP). Initially the manufacturing operation was conducted at Crowell's home in Montgomery County, Maryland, where Crowell and Robertson spent hours refining the necessary chemical ingredients according to a process taught by records which they obtained from the United States Patent Office. As the enterprise flourished, Gillespie and others were added to the fold Gillespie to aid in distribution of the product and others to assist in its manufacture. Clandestine laboratories were established in two counties of Virginia and quantities of apparatus and chemicals were purchased in the District of Columbia, Maryland, Virginia, New York and Colorado, and transported to the laboratories.
Law enforcement officers first discovered the illegal enterprise in 1975 as a result of observations of Crowell's residence and detection of the chemical odors emanating therefrom. Materials were seized from Crowell's trash and analyzed. They were found to contain PCP. A search warrant for the premises was executed and various chemicals, apparatus and an enormous quantity of PCP were seized.
After the 1975 raid, the Crowell laboratory was moved to the home of a non-appealing co-defendant and plans were made to move it elsewhere. Gillespie and another purchased a farm in West Virginia as a site but that location was never used for manufacture. A second search warrant for Crowell's residence was executed in 1976 and chemicals, money and a small quantity of PCP were seized. The laboratory was then moved to Tappahannock, Virginia and the execution of a search warrant on it uncovered a cache of chemicals and apparatus capable of being used to manufacture PCP worth millions of dollars.
Other facts will be stated later in the opinion in connection with the contentions to which they relate.
The trial of defendants' case generated a great deal of newspaper publicity both before the trial began and during its course. In the selection of the jury, at least one member of the venire was excused because he said that he had read about the case that morning. Once the jury was selected, the district court admonished it to refrain from reading articles or listening to broadcasts concerning the trial. The jury was not sequestered, but this admonition was repeated periodically throughout the trial.
On the second day of trial, defense counsel presented to the court two newspaper articles that reported on the opening of the proceedings. Both stressed that courtroom security was unusually restrictive in response to unspecified threats. The articles named the defendants and identified the charges against them. Immediately after learning about the articles, the district judge inquired of the jurors whether they had been exposed to any publicity concerning the case. When there was no response, he repeated the admonition against reading articles or listening to broadcasts about the trial and proceeded with the case.
On the fourth day of trial, a newspaper published an edition bearing the banner headline, "DEATH THREAT TIP CAUSES FEDS TO TIGHTEN DRUG TRIAL SECURITY Gang May Attempt to Kill Defendant." The body of the article contained highly prejudicial information. Defense counsel called this article to the attention of the district court and moved for a mistrial. Again the district court interrogated the jury collectively as to whether anyone had read the article and when no juror responded affirmatively, the district court denied the motion and proceeded with the trial.
We see no error in the manner in which the district court proceeded or in its ruling. Our decisions in United States v. Pomponio, 517 F.2d 460 (4 Cir.), Cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975); and United States v. Hankish, 502 F.2d 71 (4 Cir. 1974), prescribed the manner in which a district court should proceed to determine whether a jury's impartiality has been adversely affected by prejudicial publicity. First, the obligation of bringing prejudicial material to the attention of the district judge rests with defense counsel. Once the material is before the judge, he must determine whether it is prejudicial. That entails a determination of whether the publicity disclosed information about the defendant that would not be admissible before the jury, or that was not in fact adduced before the jury in open court. United States v. Jones, 542 F.2d 186, 195 (4 Cir. 1976). If the material is found to have been prejudicial, the judge must then ascertain whether any of the jurors were exposed to it. "(I)f no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity in question, the judge is not required to proceed further." United States v. Hankish, 502 F.2d 71, at 77. (Quoting from Margoles v. United States, 407 F.2d 727, 735 (7 Cir.), Cert. denied,396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969)). If, on the other hand, some members have been exposed to the prejudicial material, the district court must then determine the extent and effect of the infection and act to ensure a fair trial. United States v. Hankish, supra; United States v. Pomponio,517 F.2d at 463.
In the instant case, it is manifest that the district court proceeded correctly. Since upon collective inquiry no juror indicated that he had read the publicity in question, there was no need for voir dire on an individual basis.
On two occasions in late March or early April, 1975, Montgomery County police officers, lacking a warrant, nonetheless directed Crowell's private contract trash collector to turn over trash which had been collected from Crowell's residence. On each occasion the trash collector had collected the bag of trash and carried it off of the Crowell property preparatory to putting it on the collection truck. On each occasion the trash collector did as he was told and the police officers received the bag. The trash collector had no permission from Crowell to turn over the trash to the police. At the same time, there was no evidence that he had any instructions other than to remove and dispose of it.
The police examined the trash and caused certain substances contained in it to be subjected to chemical analysis. They were shown to be PCP. The presence of PCP in the trash was later used by the police as one of the grounds for obtaining a search warrant to search Crowell's...
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