U.S. v. Garmany
| Decision Date | 11 June 1985 |
| Docket Number | No. 84-7130,84-7130 |
| Citation | 762 F.2d 929 |
| Parties | 18 Fed. R. Evid. Serv. 679 UNITED STATES of America, Plaintiff-Appellee, v. Harold J. GARMANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David P. Whiteside, Jr., Birmingham, Ala., for defendant-appellant.
Frank W. Donaldson, U.S. Atty., Robert J. McLean, Bill L. Barnett, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, CLARK and PECK *, Circuit Judges.
Appellant, Harold J. Garmany, was convicted on three counts of conspiracy to distribute, dispense, and possess with intent to distribute cocaine, marijuana, and methaqualone, 21 U.S.C. Sec. 846, and one count of conspiracy to introduce packages containing contraband into federal penitentiaries, without the knowledge or consent of the penitentiaries' wardens, 18 U.S.C. Sec. 1791. On appeal, he challenges the district court's requirement that he pay the travel fees of defense witnesses, the court's denial of a motion for a continuance, and other rulings made during the course of his trial. Finding no error, we affirm.
On August 12, 1982, Garmany was arrested for alleged parole violations and incarcerated in the United States penitentiary in Atlanta, Georgia. Shortly after his arrest, Garmany initiated a scheme to have drugs smuggled to him in prison. To effectuate the plan, friends of Garmany obtained the drugs and assorted paraphernalia that he requested. Steve Kermish, Garmany's attorney since 1978, acted as the conduit in the scheme, bringing the drugs and requested articles with him on his visits to Garmany in prison.
At first, Garmany requested that the drugs be packed in a "keester," a hollow tubular device designed for insertion into the rectum. In the visitors' room at the penitentiary, Kermish passed the keester to Garmany, who inserted the keester unnoticed and returned to his cell. Garmany then devised another method for receiving drugs, enlisting the help of a prison guard, Charles Robinson. Twice Kermish brought cigarette packages into the prison and passed them to Robinson, who gave them to Garmany at his cell. Garmany's friends had replaced these packages' original contents with the drugs and paraphernalia requested by Garmany, and then prepared the packages to resemble ones sold inside the prison. 1 When Robinson became uncomfortable with his role, Garmany found another prison guard, Charles Grady, to assist him. Several times Grady met with Kermish, or another friend of Garmany, outside the prison, picked up the cigarette packages, and delivered them to Garmany's cell.
In November, 1982, Garmany was transferred to the federal correctional institute at Talladega, Alabama, where the drug-smuggling scheme continued. Several of Garmany's friends moved into a home in that city and continued the operations from that site. From November, 1982, through February, 1983, Kermish drove from Atlanta to Talladega several times, picked up drug-filled keesters prepared by Garmany's friends, and delivered them to Garmany in the prison's visitation room. Although Kermish often was accompanied by other individuals on these visits, he would arrange to be alone with Garmany, at which time Garmany would take the keesters.
Acting on a tip of another inmate, prison officials searched Garmany and his cell on May 30, 1983. In Garmany's trouser pocket, they found one-half gram of cocaine wrapped inside a plastic bag. The next day prison officials found Garmany in his cell bleeding from the wrists. Garmany told prison officials that he had slashed his wrists so that "someone would talk to him."
Garmany was charged in a five-count indictment on November 9, 1983. Trial commenced during the first week in January, 1984. The government dropped one of the counts during the trial, and the jury returned a verdict of guilty on the remaining four counts. This appeal ensued.
To assist the presentation of his defense, Garmany filed petitions for writs of habeas corpus ad testificandum for several inmates scattered throughout the federal prison system. As a condition for production of these inmate-witnesses at trial, the district court required that Garmany, who made no claim of indigency, tender the cost of transporting these inmates from their respective prisons to the place of trial, Birmingham, Alabama. Garmany requested the presence of five witnesses who were incarcerated at the federal correctional institute in Talladega, which the United States marshals stated would cost approximately $1,000. Another inmate imprisoned in Lexington, Kentucky, could be produced for $2,000. Two prisoners from Leavenworth, Kansas would cost Garmany $4,000, and an inmate from El Reno, Oklahoma, could be present if Garmany tendered $3,000. 2
Appellant argues that the costs imposed to obtain the presence of the inmates violated his sixth amendment right to compulsory process. In effect, Garmany states that due to his limited resources, he was forced to be selective in choosing among several essential defense witnesses. This in turn hindered the defense Garmany was able to present at his trial and, according to the appellant, requires reversal of his convictions.
To be sure, a criminal defendant's sixth amendment right to compulsory process is a fundamental component of due process itself. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978). 3 To effectively implement this constitutional guarantee, the accused has the right to subpoena witnesses on his or her own behalf to testify at a trial. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev., 567, 587 (1978). Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases, and Rule 17(d) prescribes that service of any subpoena, except those issued on behalf of the United States, must be accompanied by payment of witness fees and travel expenses. 4 For a defendant who is financially unable to pay these costs, Rule 17(b) requires the court to subpoena witnesses on that defendant's behalf "upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense." In such instances, the government bears the cost of securing the attendance of the witnesses. See Fed.R.Crim.P. 17(b). Appellant does not challenge the requirement that financially able criminal defendants must bear the cost of bringing their own witnesses to the trial, but rather he alleges that the amounts he was charged here were excessive, and thereby inhibited his right to compulsory process. We cannot agree.
First, appellant never raised this contention in the district court. We do not ordinarily consider claims raised for the first time on appeal. United States v. Silva, 611 F.2d 78, 80 (5th Cir.1980). Garmany's failure to pursue this claim in the district court also leaves us without a record for evaluating the factual basis for his contentions. As noted above, Rule 17(b) provides that a defendant who is unable to pay associated costs of producing witnesses can still avail himself of the court's subpoena power. As a threshold matter, however, there must be a satisfactory showing of financial hardship. United States v. Sprouse, 472 F.2d 1167 (6th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). In the court below, not only did Garmany's attorney fail to make any proffer of inability to pay, he stated that Garmany was prepared to tender approximately $8,000 to obtain the necessary inmate-witnesses. As far as we can deem from the record, Garmany in fact paid this amount. Moreover, Garmany was represented at trial by retained counsel, indicating at least that he was not indigent.
Aside from this deficiency, appellant's argument does not warrant reversal of his convictions. In United States v. Valenzuela, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court held that deportation of potential witnesses who had entered the United States illegally did not violate a criminal defendant's sixth amendment right to compulsory process, where the defendant failed to "make some possible showing of how their testimony would have been both material and favorable to his defense." 102 S.Ct. at 3446-47 (footnote omitted). In the present case, appellant's argument suffers from a similar defect. There is no allegation that the court's action deprived him of any particular witness. Thus, it is not even clear that the costs of producing the witnesses forced Garmany to be selective. Nor do we find any indication as to what any absent witnesses might have testified to. Without this, we cannot say that appellant was deprived of his right to compulsory process. 5 We hold, therefore, that the imposition of the expenses did not abridge appellant's constitutional right. 6
Eleven days prior to trial, Garmany requested that his trial be postponed. In support of the motion for continuance, Garmany's counsel, J. Wilson Dinsmore, stated that circumstances prevented him from devoting time to his client's case until the middle of December. Further, Garmany was in Talladega's Administrative Segregation Unit during the pretrial period, which, according to Dinsmore, limited Garmany's access to a telephone. Prisoners with information relevant to Garmany's defense were scattered throughout the country, which, Dinsmore asserted, made it impossible to interview them. Finally, counsel urged that the prosecution had refused to permit discovery of government witnesses, further contributing to the defense's inability to prepare its case. Simultaneously with the filing of this motion, Garmany sought several writs...
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Brown v. Berghuis, 07-CV-12264-DT.
...the Compulsory Process Clause does not require the government to bear the expense of producing the witness. See United States v. Garmany, 762 F.2d 929, 934 (11th Cir.1985); cf. FED.R.CRIM.P. 17(b) (defendant seeking to have government bear costs of compliance with subpoena in federal crimin......
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U.S. v. Johnson
...the party against whom the secondary evidence is being offered bears the burden of challenging its admissibility. United States v. Garmany, 762 F.2d 929, 938 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 Here, all of Rule 1004's requirements are met because the......
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U.S. v. Persico
...Generally, “financially able criminal defendants must bear the cost of bringing their own witnesses to the trial.” United States v. Garmany, 762 F.2d 929, 934 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 (1986). However, a defendant can have the government bea......
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Perry v. Norris, PB-C-83-275.
...accused to compulsory process. See Thomas v. Wyrick, 687 F.2d 235 at page 239, a 1982 case, as has the Eleventh Circuit, United States v. Garmany, 762 F.2d 929, 933, a 1985 case. Clearly, then, the Sixth Amendment affords one the right to call his own witness to trial, and that right cannot......
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Other Evidence Rules
...this rule, the burden of challenging the admission of a photocopy is on the party against whom it is offered. United States v. Garmany , 762 F.2d 929 (11th Cir. 1985). In this regard, the opponent who challenges the admission of a duplicate must show that: There is a genuine issue regardi......
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Other Evidence Rules
...this rule, the burden of challenging the admission of a photocopy is on the party against whom it is offered. United States v. Garmany , 762 F.2d 929 (11th Cir. 1985). In this regard, the opponent who challenges the admission of a duplicate must show that: There is a genuine issue regardi......
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Other Evidence Rules
...this rule, the burden of challenging the admission of a photocopy is on the party against whom it is offered. United States v. Garmany , 762 F.2d 929 (11th Cir. 1985). In this regard, the opponent who challenges the admission of a duplicate must show that: • There is a genuine issue regardi......
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Other Evidence Rules
...this rule, the burden of challenging the admission of a photocopy is on the party against whom it is offered. United States v. Garmany , 762 F.2d 929 (11th Cir. 1985). In this regard, the opponent who challenges the admission of a duplicate must show that: There is a genuine issue regardi......