U.S. v. Davis

• Decision Date: 25 October 1978
• Docket Number: No. 77-5652,77-5652
• Citation: 582 F.2d 947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. H. P. DAVIS, Arnold Harkless, Jr., and Billy Earl Clayton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 947

582 F.2d 947

UNITED STATES of America, Plaintiff-Appellee, v. H. P. DAVIS, Arnold Harkless, Jr., and Billy Earl Clayton Defendants-Appellants.

No. 77-5652.

United States Court of Appeals Fifth Circuit.

Oct. 25, 1978.

Arnold Harkless, Jr., pro se.

H. P. Davis, pro se.

Billy Earl Clayton, pro se.

Donald O. Ferguson, San Antonio, Tex. (Court-appointed), for Davis.

Raul Rivera, San Antonio, Tex. (Court-appointed), for Clayton.

J. Douglas McGuire, San Antonio, Tex. (Court-appointed), for Harkless.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., Robert S. Bennett, Trial Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, ^* District Judge.

PATRICK E. HIGGINBOTHAM, District Judge:

Defendants H. P. Davis, Billy Earl Clayton, and Arnold Harkless, Jr. were convicted in the Western District of Texas of conspiracy to possess heroin with the intent to distribute, in violation of 21 U.S.C. § 846, and possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Each received sentences of ten years on each charge to be served consecutively. ¹ They join in this appeal. ² The defendants' complaints fall into three groups: (1) failure of the prosecution to disclose a plea agreement with its chief witness; (2) the denial of four pretrial motions; and (3) evidentiary rulings. For the reasons that follow, we reject these claims of error and affirm.

The three defendants were indicted on May 10, 1977, and all entered pleas of not guilty on May 20, 1977. Defendants later filed numerous pretrial motions. The parties appeared on June 1 and the trial was scheduled for July 11, 1977. On July 11 the case was called to trial, a jury was selected, and the case was commenced two days later on July 13. After a trial of less than one day and jury deliberations of less than one hour, the defendants were found guilty on both counts.

One of the government's key witnesses was a 61-year old male named Kinslo Davis. He testified that on Sunday, April 17, 1977, he received a telephone call from a man who identified himself as "Hawk's cousin." Hawk had purchased heroin from Kinslo Davis at other times. Hawk's cousin asked and Kinslo Davis answered that he could furnish heroin if "the man" was available. It later developed that "Hawk's cousin" is the defendant, H. P. Davis.

The following Tuesday morning Kinslo Davis received a second call from H. P Davis asking if he had the heroin. On learning that Kinslo Davis had made contact with "the man", H. P. Davis stated that he would come to San Antonio from Houston that day. H. P. Davis arrived in San Antonio and telephoned Kinslo Davis at the Hackberry Street Bar. Kinslo Davis instructed the defendants to meet him at a certain washateria and learned that he could identify H. P. Davis as the driver of a black and gold pickup truck. Unknown to Kinslo Davis, and unfortunate for H. P. Davis and his compatriots, D.E.A. agents had the Hackberry Street Bar under surveillance. The agents observed Kinslo Davis leave the bar. Following Kinslo Davis, the agents observed him pull his Cadillac behind the black and gold pickup. While the surveillance continued, H. P. Davis got out of the pickup and joined Kinslo Davis in the Cadillac. H. P. Davis asked Kinslo Davis if he had "the stuff." Kinslo Davis said that he did. H. P. Davis had the money. The pickup and the Cadillac departed to a nearby park where the vehicles were parked side by side. There defendants Clayton and H. P. Davis left the pickup and joined Kinslo Davis in the Cadillac, tendering the purchase money for two ounces of heroin; Kinslo Davis immediately found it $50 short of the agreed upon $1,200. H. P. Davis left the Cadillac, returned to the pickup, obtained the additional $50 from the defendant Harkless, and returned to the vehicle. The money delivered to Kinslo Davis was in small denominations, mostly $10's, but none larger than a $50 note. All parties left the park, followed by the same D.E.A. agents. Kinslo Davis then delivered $1,200 he had just received from defendants to Rogelio Galindo, his source. Kinslo Davis had been a heroin runner for Galindo for some period of time during which he had been entrusted with substantial quantities of drugs and money. After he handed the money over to Galindo, Kinslo Davis was arrested at a supermarket.

Surveillance agents also followed the pickup truck (containing defendants H. P. Davis, Harkless, and Clayton) to Interstate Highway 10 where the agents were satisfied it was heading east towards Houston, Texas. Later that evening, acting on the information of agents in San Antonio, Officer B. J. Gallatin of the Houston Police Department spotted the truck on Interstate 10 and in the city limits of Houston. During an ensuing high speed chase two objects were thrown from the pickup truck by the passenger on its right side. One of the objects struck the windshield of Officer Gallatin's car in a burst of powder. The other object went over the top of the police car. Another police vehicle stopped and recovered the packets thrown from the pickup during the chase. Although the officer recovered only one-third of the packet which struck the windshield, he retrieved the other packet intact. Officer Gallatin succeeded in stopping the vehicle and was joined at the arrest site by Officer Harrison who had recovered the heroin. As he approached H. P. Davis, H. P. Davis volunteered "Officer Harrison, I guess you have me this time." The packets contained 30.5 grams of 1.6% Heroin. According to the testimony of Houston police officials, the quantity could be divided into approximately 110 foil packets or "balloons" with a resale value of approximately $50 each, aggregating a resale price of some $5,000.

The first group of errors urged by defendants revolves around a factual assertion that Kinslo Davis had entered into a plea bargain arrangement not revealed to defendants. Such nondisclosure upon the request of the accused would violate due process, offend the rules of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and in general suggest acute problems of prosecutorial misconduct.

These claims can be quickly dispatched. The record contains no evidence of any undisclosed plea arrangement between Kinslo Davis and the government. Defendants argue, however, that this court need not limit itself to the contents of the record. Pointing to events occurring after the trial and outside the record on appeal, they urge that Kinslo Davis' later plea to one felony count of an indictment and his four year sentence demonstrates that at the time of the trial, a secret deal was in existence. They contend that under Ring v. United States, 419 U.S. 18, 95 S.Ct. 164, 42 L.Ed.2d 29 (1974), these post trial events require this court to reverse their convictions. Ring, a Per curiam opinion vacating an unreported Fifth Circuit decision, does not support defendants' position. In Ring, as here, the trial record contained no indication that the prosecution had withheld exculpatory evidence. The Solicitor General conceded on appeal, however, that the prosecutor's records revealed plea bargaining not disclosed at trial. The Supreme Court, without explanation, remanded the case to allow that evidence to be offered into the record. Although the opinion does not so specify, Ring falls into that category of cases confronting confessed error in which appellate courts are obliged independently to examine the error confessed in order to determine whether its magnitude is sufficient to justify remand. See Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942). The government has not here confessed any error or conceded facts that raise sufficiently serious questions to justify remand. Defendants are, of course, free to proceed before the trial court to develop factual support for their present suspicions that now appear to spring from no more than a possible later plea and favorable sentence of Kinslo Davis. See 28 U.S.C. § 2255.

Second, defendants urge the trial court erred in denying motions for a bill of particulars, for appointment of investigator at the government's expense, for an independent chemical analysis, and for severance.

Defendants contend that the trial court by not ordering a bill of particulars prevented their gaining sufficient knowledge of the offenses to prepare their defense. The purpose of a bill of particulars is to inform an accused of the charge with sufficient precision to reduce trial surprise, to enable adequate defense preparation, and critically, by the fleshing out of the charges to illuminate the dimensions of jeopardy. United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977); United States v. Sherriff, 546 F.2d 604, 606 (5th Cir. 1977). The determination of whether a given bill falls within or exceeds these permissible purposes is seldom subject to precise line drawing. More often it is an exercise calling for discrete decisions properly infused with the ambience of the trial scene and tailored to fit the facts before the trial judge. Not surprisingly then, in passing on motions for a bill of particulars, a trial court is afforded substantial...