U.S. v. Griffith, s. 82-1485

• Decision Date: 27 February 1985
• Docket Number: Nos. 82-1485,82-1495 and 82-1496,s. 82-1485
• Citation: 756 F.2d 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy GRIFFITH (82-1485), Gerald L. McKay (82-1495), Frank Ross Reynolds, III (82-1496), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1244

756 F.2d 1244

UNITED STATES of America, Plaintiff-Appellee, v. Roy GRIFFITH (82-1485), Gerald L. McKay (82-1495), Frank Ross Reynolds, III (82-1496), Defendants-Appellants.

Nos. 82-1485, 82-1495 and 82-1496.

United States Court of Appeals Sixth Circuit.

Argued Oct. 17, 1984.

Decided Feb. 27, 1985.

Rehearing Denied in No. 82-1495 March 22, 1985.

Rehearing and Rehearing En Banc in Nos. 82-1485 and 82-1496

Denied April 10, 1985.

David Steingold (argued), Detroit, Mich., for Roy Griffith.

Michael S. Friedman (argued), Troy, Mich., for Gerald L. McKay.

Richard Paul Zipser (argued), Southfield, Mich., for Frank Ross Reynolds, III.

Leonard R. Gilman, U.S. Atty., Michael C. Leibson, Asst. U.S. Atty. (argued), Detroit, Mich., for the U.S.

Before KEITH, MARTIN and CONTIE, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Defendants Griffith, McKay, and Reynolds appeal their convictions for activities related to a marijuana distribution scheme. All three defendants were convicted of operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Reynolds and McKay were convicted of conspiring to obstruct the Internal Revenue Service in violation of 18 U.S.C. Sec. 371. Reynolds was convicted of three counts of tax evasion in violation of 26 U.S.C. Sec. 7201, and McKay was convicted of two counts of tax evasion. The defendants challenge their convictions because of inflammatory remarks made by the prosecutor to the grand jury, the petit jury's use of a dictionary to define an important legal term during deliberations, and a comment on Reynolds' failure to testify made by counsel for a codefendant. ¹ For the reasons that follow, we affirm the convictions of all defendants on all counts.

The evidence at trial showed that Reynolds and Griffith were the primary organizers in a marijuana distribution network involving tons of marijuana and millions of dollars. Reynolds arranged for individuals to transport the marijuana from Florida and elsewhere to Michigan, where Griffith was in charge of distribution. Reynolds usually paid these individuals, although on occasion Griffith would pay them. Much of the marijuana was transported in a mobile home which had been purchased by Reynolds and in a van which had been bought and modified at Reynolds' direction. Reynolds also gave the drivers directions on where to take the marijuana and whom to contact upon arrival in Michigan.

Griffith and Reynolds provided money to Patrick Bolerjack to buy a "stash" house from which Bolerjack distributed marijuana to individuals approved by Griffith and Reynolds. Griffith and Reynolds owned the marijuana, set the selling price, and kept records of the sales. Griffith and Reynolds also gave marijuana to individuals to sell on a consignment basis.

McKay was a middleman in the distribution chain. Griffith supplied marijuana to McKay, who then provided marijuana to individuals who sold it on a consignment basis. McKay set the price for the sales and directed certain persons to perform tasks for him. These tasks included transporting marijuana, loading and unloading marijuana, carrying marijuana to be weighed, weighing and storing marijuana, and transporting, counting, and laundering money.

Defendants' first challenge to their convictions is based on comments made by Assistant United States Attorney Michael Leibson to the grand jury that returned the indictments on the 21 U.S.C. Sec. 848 charges. Although the comments made by Leibson related only to Reynolds, McKay and Griffith claim that Leibson's inappropriate remarks also reflected on them because they had been characterized as Reynolds' "partners" throughout the grand jury proceedings.

Some background is necessary to a full understanding of the content and effect of Leibson's remarks. The grand jury returned indictments against Reynolds and twenty-one other individuals. From its inception, the grand jury's investigation focused on Reynolds as a possible violator of 21 U.S.C. Sec. 848. During the course of the investigation, Reynolds was indicted for obstructing the section 848 grand jury. On October 3, 1981, nearly eleven months prior to the presentment of the indictments on August 28, 1982, Leibson made the following remarks to the grand jury investigating the section 848 violations:

"It has been a busy three or four weeks. While all of this is going on, we have Frank Reynolds. Frank is in jail at the moment without bond. About a month ago, month and a half ago, according to testimony that another Grand Jury, 80-3, heard last week, Greg Reynolds--you remember Brother Greg--he was here that day with his wife--was in his store in Ann Arbor. Frank came in in the early evening, punched him, was yelling 'Why did you go before the Grand Jury? Why didn't you get a lawyer? Have you read your transcript? Do you know what you said?' And then he got very specific, wanted to know, 'Why did you present me in such a bad light? Why did you tell them about my water bed business, about my assets?' He made a derogatory comment about Greg's wife. 'Why did she tell about the car and the trunk incident?' I think they are referring to that money over the fence business in the cemetery.

"Anyway, a good many things that Frank Reynolds should not know were said to you and very specific statements about the Grand Jury and he demanded $10,000 from Greg without precisely stating why. It is Greg's opinion, according to his testimony, that he is being asked because he caused Frank all these problems. Greg called the IRS as he was instructed to do should anything like this occur. We obtained a complaint charging him with obstruction of justice or threatening and intimidating a witness who had appeared before the Grand Jury. The matter was taken to Magistrate Komives who on hearing the general facts of the case found that Frank was not entitled to bond, as rare an occurrence in the Federal system as you are going to find. It is virtually unheard of to be given no bond. Magistrate Komives found that in his opinion, Frank Reynolds simply was a threat to the Grand Jury investigation, was a threat to the witnesses, and he wasn't going to tolerate it. The matter was appealed to Chief Judge Feikens. Judge Feikens had three different hearing dates set and heard testimony on three different days and upheld Magistrate Komives, finding the same thing, that the matter is serious, that a witness had been threatened, and that Mr. Reynolds poses a tremendous risk to the continued integrity of the investigation on the street. That matter has been appealed to the Sixth Circuit on an emergency basis. They have been sitting on it for a week which would seem to indicate to me that they are not likely to release Mr. Reynolds.

"The matter was indicted last week by 80-3. Mr. Reynolds has appeared before Judge Joiner now who has also upheld the one decision on the earlier matters. So he has now had three hearings before two District Judges and a Magistrate. All of them have denied him bond. That is set for trial October 22. If you have nothing better to do, come on down and watch the performance. It will only take about a day. There is only three witnesses involved. What will happen if he is convicted is, most likely at this point Mr. Reynolds will not be out of jail then either. We are having some indication that he has seen the future and understands its ramifications at this point. He has had tentative discussions through his attorney, plea negotiations. We have told him essentially that there is nothing we can offer him without knowing what he has got and that if he thinks about probation, forget it, and if he is thinking about an easy deal, he is going to have to give us the world and we don't think he has got it. If he does, all the better. In any event, he is not going to save us a lot of time one way or the other so that is where Mr. Reynolds is at the moment. He is sitting in Milan, not too thrilled about the whole thing.

"A JUROR: Question. How would he have known what his brother said?

"MR. LEIBSON: That is a good question. There are two possible ways--well, three possible ways. Greg could have told him. Greg denies he told him anything of the substance of the Grand Jury conversations. Frank incidentally says he did. Frank has not said that under oath subject to cross examination. That is the position he has taken that he knew about it because his brother told him. That is one possibility.

"Possibility two is that as the Agents go out and question witnesses, they ask them things that, if you know what the case is about, you can guess what the source of information was. However, at least two of the things in my estimation that Frank told about would not be things that have been asked of anybody else because they were things unbeknown by Greg. Therefore, he won't ask anybody else about them. So that is the alternative, that in some manner, in some way, Frank Reynolds has gotten a hold of those transcripts or some information from this Grand Jury and we are terribly concerned about that.

"When John McKay was here, there was an allegation that an attorney had been paid off. I don't think that is true but who knows?

"There are various other ways one could get those transcripts. You could have a Court Reporter, which is not likely in this case because they would first have to identify who the Reporter was and then get to them which is almost impossible to do. They have no idea who is recording for us and certainly no idea who was here on a given day. They could have paid somebody from the protective services organizations and somebody unconnected with the office to simply go through the files. It seems they could have bugged the rooms, I suppose the Grand Jury Room. These things are all possibilities. I don't think many of them are probable. There is something happening that we are not fully--we have not been able to grab a hold of. In some manner, these people are getting information they...