U.S. v. Harbin, 77-5835

• Decision Date: 27 August 1979
• Docket Number: No. 77-5835,77-5835
• Citation: 601 F.2d 773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David HARBIN, Lonnie Mims, Nolan O'Quinn, William Stanley, Johnny Thompson, a/k/a J. T., Descel Eldridge, Chuck Pruitt and Roger Cleckler, Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 773

601 F.2d 773

UNITED STATES of America, Plaintiff-Appellee, v. David HARBIN, Lonnie Mims, Nolan O'Quinn, William Stanley Johnny Thompson, a/k/a J. T., Descel Eldridge Chuck Pruitt and Roger Cleckler Defendants- Appellants.

No. 77-5835.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1979.

C. Wes Pittman, Panama City, Fla., Court-Appointed, for Harbin.

William F. Wager, Jr., Panama City, Fla., Court-Appointed, for Stanley.

Henry R. Barksdale, Pensacola, Fla., Court-Appointed, for Cleckler.

Michael B. Mann, Lynn Haven, Fla., for Eldridge Thompson.

Michael M. Corin, Asst. Fed. Public Defender, Tallahassee, Fla., for defendants-appellants.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., Donald Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before GEWIN, GEE and RUBIN, Circuit Judges.

GEE, Circuit Judge:

Appellants David Harbin, Lonnie Mims, Nolan O'Quinn, William Stanely, Johnny Thompson, Descel Eldridge, Chuck Pruitt, and Roger Cleckler appeal from their convictions of conspiracy to possess marijuana and/or cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Appellants, and other alleged coconspirators who have already been convicted, ¹ were apprehended as a result of a lengthy investigation conducted by the Florida Department of Criminal Law Enforcement (FDCLE), with the assistance of federal Drug Enforcement Administration (DEA) agents in Texas, of drug traffic in the Panama City, Florida, area. In February 1977, an FDCLE agent obtained authorization for a wiretap from a Florida Supreme Court justice that produced evidence of conversations among the appellants regarding past and planned future trips to Texas and Mexico to obtain drugs for distribution in the Florida market. This information was shared with DEA agents in Texas and guided surveillance in both Florida and Texas until DEA agents were able to arrest five persons during the course of a drug transaction in Texas on March 15, 1977. Arrests of other alleged members of the conspiracy followed shortly thereafter.

Appellants attack the validity of their convictions by asserting that the wiretape was illegal; that the prosecutor impermissibly commented on their failure to testify; that the trial court erred in denying their motions for a bill of particulars, for a continuance, and for the exclusion of evidence promised but in noncompliance with the court's order not furnished to defendants before the trial began; that certain prejudicial telephone calls and one defendant's post-arrest admissions were improperly admitted; and that there was insufficient evidence to convict some of the defendants of conspiracy. With the exception of O'Quinn's convictions for conspiracy to possess with intent to distribute both marijuana and cocaine and Cleckler's conviction on the cocaine count, for which we find insufficient evidence, we find no reversible error in the proceedings below and affirm.

Appellants' attack on the legality of the wiretap runs headon into our ruling sustaining it in the earlier prosecution, United States v. Hyde, 574 F.2d 856 (5th Cir. 1978), and no new allegations are presented in the instant appeal. Therefore, stare decisis leads us to reject these complaints.

Appellants' attack on statements made by government counsel as comments on their failure to testify in violation of their fifth amendment rights, See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), requires more discussion. The United States entered extensive wiretapped conversations as evidence at trial, which necessitated calling witnesses to identify the various voices heard on the recordings as those of particular defendants. During his closing argument the United States Attorney stated to the jury:

Now, you personally, of course, don't have knowledge of the voices of various people in the case, but the people who testified said that they knew these people. They explained to you how they knew them and the circumstances of their voice identification.

He also declared, in another comment on prosecution witnesses:

And it was clear it was clear as it could be that these people were telling the truth and that they were not holding back anything or getting anybody. Did you hear the defense attorney spring out anything, weren't you trying to get this guy because you hate him? No, there is no undercurrent to that in this trial at all. These people were merely getting up here, if you want to use the term, "spilling the whole beans" on everybody. Just laid it right out. ²

Appellants characterize these two statements as improper comments on their failure to take the stand by reasoning that the jurors could only have personal knowledge of their voices by having heard them testify, and the government witnesses' testimony could only have been contradicted by that of defendants so that the comments served to point out their failure to take the stand. While oblique comments on a defendant's failure to testify, if sufficiently suggestive, can be as pernicious and as unlawful as direct comments, United States v. Brown, 546 F.2d 166, 173 (5th Cir. 1977); United States v. Driscoll, 454 F.2d 792, 800 (5th Cir. 1972); Carlin v. United States, 351 F.2d 618 (5th Cir. 1965), we find no such reversible error here.

The test to be applied when it is claimed that a prosecutor has impermissibly commented on a defendant's fifth amendment protected silence is whether or not " 'it can be said that the prosecutor's manifest intention was to comment upon the accused's failure to testify (or) was . . . of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' " United States v. Ward, 552 F.2d 1080, 1083 (5th Cir. 1977), Cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1978) (quoting Samuels v. United States, 398 F.2d 964, 968 (5th Cir. 1968), Cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). We conclude that appellants have failed to satisfy either of these criteria. Rather than manifestly being intended to call the defendants' silence to the attention of the jury, we believe that the prosecutor's first statement was no more than a reminder to the jury that the defendants' voices had been reliably identified by witnesses. And while the first statement could have been interpreted as an indirect reference to the fact that the jury had never personally heard the defendants' voices from the stand, its character was not such that the jury would "naturally and necessarily" understand it as directed at the defendants' silence.

The second statement assailed by defendants was even more innocuous. In context, it clearly did not address the defendants' failure to take the stand by parading as uncontradicted government testimony that could have been disputed only by defendants. Cf. Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966) (finding an oblique comment was directed at defendant's failure to testify because it pointed to the uncontradicted nature of testimony that only defendant could dispute). Instead, it was directed to defense attorneys' inability to cast doubt on the testimony of government witnesses by demonstrating that they were improperly motivated by animosity toward the defendants or had told a tale slanted by incomplete disclosures of relevant information. Moreover, any damage conceivably inflicted by either statement was cured by the trial judge's instruction to the jury that the defendants were under no obligation to testify. See United States v. Brown, 546 F.2d 166, 173-74 (5th Cir. 1977); United States v. Jennings, 527 F.2d 862, 871 (5th Cir. 1976).

Appellants next contend that the trial court erred in denying their motions for a bill of particulars, for the exclusion of evidence requested in the motion for the bill of particulars and not provided them, and for a continuance after the government finally provided massive discovery on the second day of trial. After they were indicted for a conspiracy extending over two-and-one-half years (shortened to one-and-one-half years by a superseding indictment), defendants moved for a bill of particulars specifying the date and the location where each defendant allegedly conspired with each of the other members of the conspiracy and identifying all overt acts taken in furtherance of the conspiracy. At a pretrial motion hearing on September 12, 1977, approximately two months before the date set for trial, the United States Attorney announced that he would voluntarily provide that information within ten days. The trial court deferred for the ten-day period further consideration of the motion for a bill of particulars and directed the United States Attorney to make the requested information available to defendants at a reasonable time and place. Seventeen days later, defendants notified the court that the promised information had not been furnished, and with the court's approval the prosecutor renewed his pledge to provide the information. The defendants did not inform the trial judge of the prosecutor's continuing failure to provide the information sought in the bill of particulars until the day the jury was to be selected. At that time, defendants moved for the exclusion of all evidence of transactions not revealed in the taped conversations that had been supplied defendants or, in the alternative, for the court to order the prosecutor to provide the promised information and to grant a continuance to afford defendants time to prepare to meet it. The court denied the defense motion on grounds that federal criminal discovery is restricted and that a bill of particulars is granted at the trial court's discretion. However, the judge did order the prosecutor to furnish the requested information and allowed defendants a one-day recess to analyze it. In response...