U.S. v. Jones
| Decision Date | 27 July 1976 |
| Docket Number | 74-1861,Nos. 74-1860,s. 74-1860 |
| Citation | 540 F.2d 465 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Walter L. JONES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Calvin BAINES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lawrence E. Schauf, Asst. U.S. Atty., Denver, Colo. (E. Edward Johnson, U.S Atty., Wichita, Kan., on the brief), for plaintiff-appellee.
William E. Shull, Kansas City, Mo. (Duncan & Russell, Kansas City, Mo., on the brief), for defendants-appellants.
Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.
Defendants-appellants Walter L. Jones and Calvin Baines were convicted as co-defendants for distributing a controlled substance in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2, and appeal. We find their contentions for reversal to be without merit and affirm.
Charges of distributions on three separate dates in January, 1974, are involved. Baines alone was charged and convicted on count I for a distribution of cocaine on January 3. Baines and Jones were jointly charged and convicted on count III for a distribution of heroin on January 22. Jones was charged alone in count II with distributing cocaine on January 4, but was acquitted of this charge.
Jones was sentenced to 15 years' imprisonment and a special parole term of three years on his conviction on count III. Baines was also sentenced to 15 years' imprisonment and a special parole term of three years on each of his convictions, these sentences being made to run concurrently.
The defendants both testified and denied any guilt of the offenses. They also presented witnesses who challenged the reputation and credibility of a government informer on which much of the prosecution's case depended.
The government's proof was made primarily by a Drug Enforcement Administration agent, by an informer, and a forensic chemist. The proof tended to show that the informer made a buy of cocaine capsules from Baines on January 3. The agent said he observed this transaction from a distance, monitored the conversation through a Kel transmitter and recorded the discussion. The tape recording of this transaction was admitted into evidence and played for the jury.
On January 4 the informer allegedly purchased cocaine from Jones. Jones, however, was acquitted on this charge and we need not discuss the details concerning it.
The government proof also tended to show a heroin transaction on January 22. This transaction was also observed by the DEA agent, monitored through a Kel transmitter and recorded. Again the tape was admitted into evidence and played before the jury. The evidence tended to show that Baines asked the informer how many he wanted and that the informer requested the usual amount. Jones was not present at this time. Jones later appeared at another location where Baines and the informer were sitting in Baines's car. The testimony of the DEA agent placed Jones at the scene. The agent testified that it appeared that Jones was passing something in the window of Baines's car. According to the informer, Jones passed eight capsules of heroin to Baines and Baines handed them to the informer.
The chemist testified that the capsules involved in the two transactions respectively contained cocaine and heroin. The capsules identified were admitted in evidence.
The defendants argue four propositions on appeal: 1 (1) that 21 U.S.C.A. § 841 is unconstitutionally vague by not specifying the maximum special parole term which may be imposed, and is also an invalid delegation of legislative power; (2) that the court erred in admitting the tape recordings because they were inaudible, susceptible to misinterpretation and highly prejudicial, and because the government was unable to provide transcripts of the recordings; (3) that the court erred in admitting one particular tape containing statements by Baines which were hearsay and prejudicial as to Jones, who was not present when the statements were made; and (4) that the court exceeded the bounds of fundamental fairness and fair comment by statements made concerning the case and to defense counsel.
The constitutionality of the special parole term provisions
in 18 U.S.C.A. s841(b)(1)
Defendants argue essentially that the special parole term provision is invalid due to the lack of any statutory maximum on the length of the special parole term which must be imposed under § 841(b)(1)(A). They point out that if a violation of the terms of the mandatory special parole occurs, the special parole may be revoked and the original term of imprisonment must then be increased by the period of the special parole term, the resulting new term of imprisonment not being diminished by the time spent on special parole. See § 841(c). Defendants say the statute is both unconstitutionally vague and an invalid delegation of legislative power, citing Article 1, Section 1 of the Constitution and United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200; and Roberts v. United States, 491 F.2d 1236, 1238 (3d Cir.), and similar cases.
It is true that 21 U.S.C.A. § 841(b)(1)(A) makes a special parole term for the controlled substance offenses mandatory, specifying only required minimums for the special parole term and leaving its maximum length to the court's discretion. § 841(b)(1)(A) provides in part:
. . . Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.
Moreover, a violation of the conditions of the special parole term may bring revocation and a new term of imprisonment, as § 841(c) makes clear. 2
We are, however, unpersuaded by the defendants' contentions. While § 841(b) (1)(A) provides only the three and six years minimums, the statute is reasonably construed to validly authorize a maximum special parole term of life. United States v. Rich, 518 F.2d 980, 987 (8th Cir.); see Binkley v. Hunter, 170 F.2d 848, 849-50 (10th Cir.), cert. denied, 336 U.S. 926, 69 S.Ct. 645, 93 L.Ed. 1087; cf. Bailey v. United States, 74 F.2d 451, 452-53 (10th Cir.). Leaving the determination of maximum sentences to the court is not uncommon, see Binkley v. Hunter, supra at 849, and we are convinced that no unlawful delegation of legislative power is involved. Nor is the statute void for vagueness because of the broad range of the sentencing power. Id. at 849; Bailey v. United States, supra at 452.
Relying on Roberts v. United States, 491 F.2d 1236, 1238 (3d Cir.), defendants argue that because of the undetermined period of the special parole term to be imposed, a defendant would lack the knowledge and understanding of one of the most crucial elements to be considered in plea bargaining or waiving one's right to a trial (Appellants' Brief, 9-10). We agree that, as the Roberts case recognizes, the possible life extent of such a special parole term is a consequence of a plea of guilty which must be made clear in addressing a defendant before accepting a plea of guilty pursuant to Rule 11, F.R.Crim.P. See Jenkins v. United States, 420 F.2d 433 (10th Cir.). These problems are not involved here, however because the defendants entered no such plea and instead exercised their rights to a trial by jury.
We hold that the special parole term provisions of § 841 are valid.
The admission into evidence of the tape recordings
As noted above, the surreptitious tape recordings of the drug transactions were admitted in evidence and played for the jury over the defendants' objections. Those which we need be concerned with on this issue are Exhibit 4-A, the recording concerning the January 3 cocaine charge in count I against Baines, and Exhibit 14-A, the recording concerning the January 22 heroin charge against both defendants.
Essentially the defendants contend that the tapes were inaudible, susceptible to misinterpretation and highly prejudicial. They argue that the trial court abused its discretion by admitting the tape recordings in evidence. In addition, the defendants complain that the manner in which the tapes were played before the jury was extremely prejudicial and inflammatory because the informer was permitted to testify on the contents of the unclear tapes as they were being played (Appellants' Brief, 22). Thus they argue that the informer improperly corroborated his own testimony by relating to the jury the contents of the tapes, although the alleged corroboration came from virtually undecipherable sources. Id. And the defendants complain because the government was unable to provide a transcript of the tapes.
We must agree there are problems concerning the tapes. The record on appeal itself is unsatisfactory. As to the portion of Ex. 4-A on the January 3 transaction (count I) which was played, there is no record showing in any manner what was played. At that point the reporter made a notation that "a portion of Exhibit 4-A is played which is not sufficiently clear for the reporter to be able to report the voices." (R.Vol. 1, 270). Thereafter, at points in the record where portions of the recordings were played, there are simply notations that further portions of the tapes were played.
There is, therefore, support from the court reporter for the contention on the unintelligibility of the tapes. Moreover, the government admitted at pretrial that the recordings were incoherent in part. It admitted also that transcripts which had been made of the recordings were perhaps inaccurate, and that they were incomplete. Hence the government said it would make no use whatsoever of the transcripts at trial (R.Vol. 1, 25).
In view of the state of the record we have had to assume that the tapes marked as Exhibits 4-A (count...
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