U.S. v. King, s. 977
| Decision Date | 20 May 1985 |
| Docket Number | 1188,D,Nos. 977,s. 977 |
| Citation | 762 F.2d 232 |
| Parties | UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Jerry L. KING, Defendant-Appellant-Cross-Appellee. ockets 84-1409, 84-1437. |
| Court | U.S. Court of Appeals — Second Circuit |
Rodney O. Personius, Asst. U.S. Atty., Buffalo, N.Y. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Buffalo, N.Y., on brief), for plaintiff-appellee-cross-appellant.
Mark J. Mahoney, Buffalo, N.Y. (Diebold, Bermingham, Gorman, Brown & Cook, P.C., Buffalo, N.Y., on brief), for defendant-appellant-cross-appellee.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
Defendant Jerry L. King appeals from a judgment of the United States District Court for the Western District of New York, entered after a jury trial before John T. Elfvin, Judge, in Buffalo, New York, convicting him of conspiring to possess and distribute counterfeit money in violation of 18 U.S.C. Sec. 371 (1982). King contends that he should be granted a new trial because the district court erroneously denied him the right to review the transcript of certain testimony before the grand jury that indicted him and improperly refused to grant a continuance to permit him to bring a favorable witness to the trial. The government cross-appeals, challenging an order of Judge Elfvin that vacated the jury's verdict against King on a charge of tampering with a witness in violation of 18 U.S.C. Sec. 1512 (1982) on the ground that the facts proven by the government were not within the scope of Sec. 1512. For the reasons below, we affirm the judgment and order of the district court.
King was charged in an April 1984 indictment on one count of conspiring to deal in and utter counterfeit money, in violation of 18 U.S.C. Sec. 371; two counts of transferring counterfeit money, in violation of 18 U.S.C. 473 (1982); and one count of misleading a witness, in violation of 18 U.S.C. Sec. 1512. On July 23, 1984, jury selection was scheduled for August 28, 1984, and thereafter commencement of trial was scheduled for October 1, 1984.
During the course of the investigation of the events that led to the indictment, King's brother, Dennis King ("Dennis"), had appeared as a witness before the grand jury and testified that King was not a knowing participant in the counterfeit currency transactions. After King was indicted, the substance of Dennis's exculpatory testimony was communicated by the Assistant United States Attorney to King's attorney on two occasions: first to King's original attorney in May 1984, four days after King's arraignment, and then to King's newly substituted trial counsel on August 1, 1984. By the time of King's trial, Dennis was incarcerated in federal prison at Lewisburg, Pennsylvania.
On September 27, 1984, two court-days before the scheduled start of trial, King moved for the disclosure of Dennis's grand jury testimony and for a two or three week adjournment of the trial date. King's counsel stated that he wanted to review Dennis's grand jury testimony because he had been informed by Dennis's attorney that that testimony was exculpatory of King. The government pointed out that King's attorneys had previously been advised by the government of the exculpatory nature of Dennis's testimony, and it opposed King's motion for production of the grand jury transcript on the ground that it believed that Dennis's testimony had been perjurious and it did not wish to facilitate the continuation of his fabrications. The district court reviewed Dennis's grand jury testimony in camera, informed King that Dennis had testified that King was not a knowing participant in the counterfeit currency transactions, noted that Dennis had long been available to King for purposes of consultation, and denied the motion for production of the grand jury transcript.
The grounds advanced for King's requested adjournment were (1) that King had become aware of certain "new leads" that might lead to exculpatory evidence, and (2) that King wanted his brother, Dennis, "to be present or at least available at trial." The U.S. Marshals Office had advised King that it would require approximately two weeks' notice to obtain approval for Dennis to be brought from Lewisburg to the trial in Buffalo. The court was unpersuaded by King's proffered reason for not having discovered his new leads earlier, and no reason was offered for King's not having moved earlier to have Dennis brought to trial. King's counsel admitted that Dennis had not been unavailable for consultation. The court denied the motion for an adjournment. King did not ask the court to have Dennis produced on an expedited basis.
At trial, the jury found King guilty on the conspiracy count and the witness tampering count, and acquitted him on the two counts charging him with transfers of counterfeit money. Judge Elfvin vacated the guilty verdict on the witness tampering count, finding that the facts proven by the government, which we discuss in Part II.B. below, did not bring King's actions within Sec. 1512. King was sentenced to imprisonment for one year and one day on the conspiracy count. This appeal and the cross-appeal followed.
King contends that the district court abused its discretion in denying his motion for a continuance to permit Dennis to be brought to testify and in refusing to grant him access to the grand jury transcript. We find no merit in these contentions.
A motion for an adjournment of the scheduled start of trial is addressed to the sound discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964); Avery v. Alabama, 308 U.S. 444, 450, 60 S.Ct. 321, 324, 84 L.Ed. 377 (1940); United States v. Cicale, 691 F.2d 95, 106 (2d Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983). To show abuse of that discretion, the defendant must demonstrate that the court's denial of a continuance was arbitrary and substantially impaired his defense. United States v. Bein, 728 F.2d 107, 114 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984); United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir.1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967).
Here we can hardly regard the district court's action as arbitrary, and we conclude that any detriment suffered by King resulted from his own dilatory conduct and not from the court's ruling. King was advised more than four months in advance of trial that his brother's grand jury testimony had sought to exonerate him in the counterfeit money transactions. Yet he waited until two court-days before trial to suggest to the district court that he wanted Dennis to appear as a trial witness. Such tactics provide no basis for a ruling that the district court abused its discretion in denying a continuance to permit the witness to be brought to trial.
We are unpersuaded by King's attempt to cast this issue as a violation of his Sixth Amendment right to compulsory process to obtain witnesses in his defense. There seems to be no doubt that King would have been able to secure Dennis's presence had he simply requested it in timely fashion. Further, it is possible that had King requested, even at the late date of his continuance motion, that the court expedite the production of Dennis so that he might appear in time for trial. Dennis's presence might have been procured. That King made neither a timely request for Dennis's production nor an eleventh hour request for his production on an expedited basis belies his claim that his fundamental rights were violated.
Nor do we find merit in the claim that King should have been given the transcript of Dennis's grand jury testimony. We pause to note that we are unimpressed with the government's stated reason for opposing the motion, i.e., that the government did not want Dennis to have access to the transcript because it believed his prior testimony had been perjurious. Incredulity is not a proper basis for denial of access to grand jury materials.
Nonetheless, the court's ruling was not inappropriate. King had been advised in May and August that Dennis's testimony was exculpatory of King, and King's counsel conceded that Dennis would have been available for consultation if counsel had wished to speak with him. Thus, this was not a case in which King lacked either information as to the contents of the transcript or access to the person who gave the testimony. The district court's denial of the motion for production of the transcript was therefore not an abuse of discretion. See United States v. Natale, 526 F.2d 1160, 1171 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976) ().
Count 4 of the indictment charged that from approximately July 26, 1983, through August 4, 1983, King had, in violation of 18 U.S.C. Sec. 1512, "knowingly engage[d] in misleading conduct toward another person" by making false statements to, and intentionally concealing material facts from, one Frank S. Orgovan, Jr., for the purpose of hindering and preventing the disclosure to law enforcement agents of King's participation in the counterfeiting offenses. The jury found King guilty on this count, but the trial court vacated the verdict on the ground that the facts proven did not amount to a violation of Sec. 1512. The government cross-appeals from this decision. We agree with the district court's interpretation.
Section 1512 provides, in pertinent part, as follows:
(a) Whoever knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
(1) influence the testimony of any person in an official proceeding;
(2) cause or induce any person to--
(A) withhold testimony...
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