U.S. v. Frascone, 83-1888
| Decision Date | 16 November 1984 |
| Docket Number | No. 83-1888,83-1888 |
| Parties | 16 Fed. R. Evid. Serv. 1214 UNITED STATES of America, Plaintiff-Appellee, v. John FRASCONE and David Allen Burcky, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bruder & Cooper, Melvyn Carson Bruder, Dallas, Tex., for Frascone.
Russell W. Schell, Dallas, Tex. (court-appointed), for Burcky.
James A. Rolfe, U.S. Atty., Robert R. Smith, Jr., Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GEE, POLITZ and HIGGINBOTHAM, Circuit Judges.
David Allen Burcky was convicted by jury of conspiracy to distribute methamphetamine, 21 U.S.C. Sec. 846, two substantive counts of distribution, 21 U.S.C. Sec. 841(a)(1), and of illegal use of a telephone to facilitate the distribution, 21 U.S.C. Sec. 843(b). John Frascone, jointly indicted, was convicted of conspiracy to distribute methamphetamine, two counts of aiding and abetting methamphetamine distribution, 18 U.S.C. Sec. 2, and two counts of illegal use of a telephone to facilitate the felonious distribution. Burcky contends: (1) that his right to effective counsel was abridged because the court denied a continuance; (2) the government's investigative methods constituted entrapment as a matter of law; (3) hearsay evidence was admitted, denying his right of confrontation; (4) the government's method of investigation and prosecution violated due process barring conviction or further prosecution; and (5) the trial court failed to give an appropriate agency instruction as to a government source. Frascone complains of (1) admission of hearsay evidence; (2) wrongful withholding of a continuance; (3) prejudicial comment by the prosecutor; and (4) impermissible restriction of defense counsel's argument. Finding no merit in any complaint except as noted herein, and no reversible error, we affirm.
The pertinent factual scenario begins with Garry Marcus Gunter agreeing to serve as a contact between FBI agent Donald Sanchez and persons in the Dallas, Texas area engaged in drug traffic. In return, Gunter was to be given some consideration in the disposition of a bank fraud charge pending in Houston. Upon confection of the mutual assistance pact, Gunter gave Sanchez a small package of methamphetamine which he said came from Frascone. Gunter also showed Sanchez an Able Repair Service business card containing two telephone numbers. Sanchez then devised a simple undercover operation designed to ensnare Frascone. Sanchez was to pose as a customer interested in purchasing a large quantity of methamphetamine. Gunter would provide the initial contact and serve as the conduit.
Implementation of the plan began on August 1, 1983 when Gunter, under Sanchez's supervision, placed monitored and recorded calls to Able Repair Service. Frascone owned Able Repair Service and Burcky was employed there. As a result of these conversations, Sanchez, Gunter and Burcky met in mid-afternoon at a public library where Gunter introduced Sanchez to Burcky as the potential customer. Burcky gave Sanchez five small packets containing samples of the available methamphetamine. No money changed hands. Following additional telephone conversations, on August 2, 1983 Sanchez, Gunter and Burcky arranged to meet at a Dallas motel to consummate a transaction involving the sale of 25 ounces of methamphetamine for $52,000. The two met in a motel room Burcky had rented and the transaction was completed. Burcky was then arrested. Shortly thereafter Frascone was arrested at his place of business.
On August 10, 1983 the grand jury returned a two-count indictment charging Burcky with distribution and Frascone with aiding and abetting. On September 27 a six-count superseding indictment charging conspiracy, distribution, and use of communication facilities was handed up. Trial was set for October 4, 1983. In preparation for trial the government secured a writ of habeas corpus ad testificandum for Gunter who was then incarcerated in an Alabama jail.
Just prior to trial, in the course of pretrial discovery, defense counsel learned of the existence of the recorded telephone conversations of August 1-2, 1983. On October 4 and 6, respectively, counsel for Frascone and Burcky moved for a continuance based on their need to review the tapes. Frascone added that he needed more time to prepare for the additional charges contained in the superseding indictment. These motions were granted and the trial was reset for October 11, 1983.
On October 7, 1983, Frascone and Burcky jointly filed a motion to compel the government to produce tapes of the relevant telephone conversations which were said to be in the possession of the FBI or DEA in Selma, Alabama. The authorities had allegedly found the tapes in Gunter's personal possessions when Gunter was arrested there. In the memorandum in support of the motion, counsel specifically invoked Rule 16 of the Federal Rules of Criminal Procedure. The motion was granted, subject to an in camera review if the government challenged discoverability. Three tapes were produced, two were blank. The government challenged, and after an in camera examination the trial court found the remaining tape not subject to discovery. No reasons were assigned for the ruling.
On that same day, defense counsel moved for access to Gunter who had been brought to Dallas from Alabama and was being held by the United States Marshal pursuant to the writ of habeas corpus ad testificandum. This motion was granted and on October 10, 1983 counsel met with Gunter. According to the affidavits of defense counsel, they then learned that Gunter had substituted two blank tapes for two tapes which contained recorded conversations. Gunter further informed counsel that the government was not aware of these two tapes and that he would not reveal their whereabouts. Acting on this information, counsel for Frascone and Burcky filed a joint motion to compel Gunter to surrender the tapes. As reflected by the supporting memorandum, counsel relied on Fed.R.Crim.P. 16 and the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This motion was denied. No reasons were assigned for the ruling.
On the first day of trial Frascone sought and was granted a writ of habeas corpus ad testificandum for Diane Dollar Gunter, the 18-year-old wife of Garry Gunter, who was then being held by the authorities in Selma, Alabama. In the ensuing six-day trial, the government relied principally on the testimony of agent Sanchez. The recorded telephone conversations were introduced into evidence. Gunter was not called as a witness.
The defense called several witnesses, including Diane Gunter. The defense did not call Garry Gunter. The thrust of the defense was that appellants did not intend to participate in a sale of drugs, but rather, they were involved in what they believed to be a "sting" of a Nigerian drug purchaser as a means of securing funds so that Gunter could repay a debt owed Frascone. The defense insisted that the government entrapped them into committing the charged crimes. The jury returned verdicts of guilty on all counts.
There is no record support for the complaint that the district court failed to grant a continuance to the defense. The only motions for continuance filed were granted. Appellants suggest that the trial court was obliged to grant a continuance sua sponte when the defense moved to compel production of the tapes Gunter allegedly had but had secreted from the government. No authority is cited for this novel proposition. We are not prepared to say that the trial court erred when it failed to grant a continuance which was not sought. United States v. Tatum, 496 F.2d 1282 (5th Cir.1974). See Davis v. State of Alabama, 596 F.2d 1214 (5th Cir.1979).
Appellants complain that the government's failure to call Gunter to testify denied them their constitutional right of confrontation. This challenge fails for two reasons. First, "the Government is under no duty to call witnesses even if they are informers." United States v. Tatum, 496 F.2d at 1284. Second, the only reference to any direct statement by Gunter came on redirect of agent Sanchez, after lengthy cross-examination, when the agent testified that Gunter had told him the methamphetamine sample came from Frascone. Defense counsel's objection to this hearsay was sustained and the jury was instructed to disregard the comment. In such an instance it cannot be said that the hearsay testimony of an available witness was offered as proof of a contested fact and that the defendant was denied the right of confrontation. Here the hearsay statement was found objectionable and a timely cautionary instruction was given. Further, the record reflects that pursuant to the writ of habeas corpus ad testificandum Gunter was available throughout the trial. The government did not seek to offer his testimony. The defense likewise opted. From the description of Gunter gleaned from the record, that decision by counsel for the government and counsel for the defense is easily understood.
Burcky maintains that he was entrapped as a matter of law because the government...
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