U.S. v. Mann

• Decision Date: 29 December 1978
• Docket Number: No. 78-1009,78-1009
• Parties: 4 Fed. R. Evid. Serv. 339 UNITED STATES of America, Plaintiff, Appellee, v. Rony MANN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 361

590 F.2d 361

4 Fed. R. Evid. Serv. 339

UNITED STATES of America, Plaintiff, Appellee, v. Rony MANN, Defendant, Appellant.

No. 78-1009.

United States Court of Appeals,

First Circuit.

Argued Oct. 3, 1978.

Decided Dec. 29, 1978.

Larry L. Scissors, Los Angeles, Cal., for defendant, appellant.

Justo Arenas, Asst. U. S. Atty., San Juan, P. R., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for plaintiff, appellee.

Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Defendant was convicted under one count of importing and a second count of possession with intent to distribute a Schedule II controlled substance, in violation of 21 U.S.C. §§ 952(a), 960, 841(a), and 18 U.S.C. § 2, and sentenced to two concurrent eight year terms. His appeal raises several issues relating to the admission of evidence as well as the issue of effective assistance of counsel. The most significant issue concerns the propriety of the district court's allowing the deposition of the crucial prosecution witness to be taken and subsequently to be admitted into evidence. We therefore note in some detail the circumstances surrounding the taking of the deposition, its admission at trial, and its content.

The key character in this drama, although always off stage except for the brief time when she was being deposed, was a 17 year old Australian woman, Joanne Lyndal Shine. Shine and defendant arrived on the same plane at San Juan, Puerto Rico, after a flight from Lima, Peru, via Curacao, on July 25, 1977. When her name, upon being fed into a computer, resulted in a "hit" information that she and an associate were suspected of smuggling she was subjected to a body search, which yielded some eleven packages of cocaine which had been taped inside her girdle. Defendant, who similarly activated the computer, was arrested shortly after Shine, although he was found not to possess any controlled substance.

Shine gave a statement to agents the night of her arrest and was detained in an adult prison facility. Meanwhile the grand jury indicted defendant on August 10, referring to a minor female who aided and abetted him but not naming Shine. On August 17 the court dismissed the charges against Shine. On August 22 the prosecution moved to take her deposition, alleging "Does appear that if the defendant returns to Australia it will be next too (Sic ) impossible for her to be available for the trial of the principal defendant Rony Mann." ¹ The defense opposed the motion, challenging the assumption that the fact Shine was an Australian meant that she would not be present. The deposition was taken on August 26. During its course the prosecution returned to Shine both her airplane tickets and her passport "for her travelling". At the end of the deposition Shine responded in several ways to defense counsel's questions whether she would appear at the trial: "No . . . No. As far as I know . . . I don't know." To the prosecution's question whether she would honor a subpoena, she said, "Yes".

A little over a month later, on October 5, the government moved for a subpoena, the trial having been set for October 17. Again the defense objected to any contemplated use of the deposition, stating that the government had "procured" Shine's unavailability by turning over plane tickets and passport, which were evidence in the case. The prosecution replied that it had exerted "all possible efforts" to have the witness present but had no authority to compel her to stay in Puerto Rico after her indictment had been dismissed. The court ordered issuance of the subpoena and subsequently the State Department cabled its embassy in Australia to request Shine's presence at trial, adding, "It is expected that she will decline, but AUSA (the Assistant U.S. Attorney) needs proof of her unavailability so her statement can be introduced at trial." The reply came back: "A consular officer spoke with the mother of Joanne Lyndal Shine, the mother stated that her daaghter (Sic ) who is only 17 years of age will definitely not be able to go to Puerto Rico to testify in case of U. S. v. Rooney (sic) Mann."

Trial began on October 17. During argument as to the admissibility of the deposition the court asked if there had been any promise to pay Shine's expenses if she had come to testify. The prosecutor answered, "Yes, Your Honor. If I may explain to the Court what is the procedure followed . . . . (T)he correct procedure . . . is we go through Mr. Robert Chamblis who in turn contacts the Department of State . . . . The Department of State through the Embassy in the particular country contacts the individual and asks him whether he comes or not. If he says, yes, immediately the Embassy provides the funds. They issue the tickets and they are then chargeable to an account in the Department of State. So, she was offered the opportunity." The court, having in mind the teaching of Government of the Virgin Islands v. Aquino 378 F.2d 540 (3d Cir. 1967) (that the government must show diligent effort to obtain the presence of a witness), and obviously believing that an offer had been made to pay Shine's expenses, reasoned that the mere fact that a witness was a foreign national was insufficient to establish unavailability; and that, when the liberty of a defendant is at stake, "the Government must show genuine and bonafide efforts on its part. . . . This is why I kept on insisting with the Government whether an offer was made to the witness to pay her expenses and subsistence. I believe that in view of the evidence presented by the Government and the offer of proof by the Government to the effect that she was offered to be paid for her expenses and subsistence I believe the deposition is admissible."

The deposition was then admitted and the trial began, only to abort into a mistrial when a customs inspector, contrary to the understanding of all parties, testified that he learned from the computer that defendant had a smuggling violation. Two days later the retrial began. It began with the reading of the deposition. The story told by Shine was of bare bones, not much excess flesh. She had been living in London for several months with her family. She had met a man named Hugh, last name unknown, who had put her in touch with defendant. She had told Hugh she would like to go to Los Angeles but needed money so that a friend could come with her. Shine added that she would be willing to pay for the ticket. Three months later defendant began calling her. She knew there was a job for her, but did not know what kind of a job it was. Finally, on July 15, 1977, she was provided with tickets and flew to Los Angeles to take some kind of a job. Defendant met her and took her to a hotel. Four days later he had her tickets "changed" to Lima, Peru, and she learned that she was to pick up and body carry cocaine.

Both she and defendant travelled to Peru on the same plane and stayed in the same hotel, in different rooms, for one night. The next day she moved to the Sheraton Hotel and, following defendant's instructions, went to a shop next door where defendant awaited her, and picked up a package, bringing it back to her room where she and defendant subsequently packaged it in plastic bags. The following day she carried the bags under her girdle and flew to Curacao and San Juan. ² She then told about being arrested in San Juan, being held from 8:30 a. m. to 4:30 p. m., and giving a statement. ³

After the deposition was read, two customs inspectors described the events leading up to Shine's arrest. The computer responded positively to her name, the inspector describing the response in these words: "DEA information indicates subject and accompanying (Sic ) smuggled cocaine to the United States from Peru concealed in luggage or on person." She was tense, unresponsive, wore a large "muumuu" dress. Her luggage was searched, apparently without untoward result. Then she was subjected to a body search and the cocaine was discovered. At this point in the trial a stipulation, agreed upon by both the prosecutor and defense counsel in an apparent effort to dispense with the testimony of the witness who had caused the mistrial, was presented by defense counsel. This was that a customs inspector would have testified that "He received information to the effect that Mr. Mann was the accomplice of Miss Joann Shine and that on that suspicion he retained him and Mr. Mann was subsequently arrested." After this a chemist testified and the prosecution rested.

The case for the defense, insofar as it is relevant to issues on appeal, may be briefly summarized. It began with stipulations that no narcotics were found on defendant; that computerized information given the customs inspectors includes information not only relating to a prior record but mere suspicion based on "profiles", e. g., observations of the manner in which tickets are bought; and that an agent had told the grand jury the version of the cocaine pickup which appeared in her statement (See n. 2, Supra ). Defendant then took the stand and disclaimed any acquaintance with Shine before meeting her by chance at the airplane ticket office in Los Angeles when he bought his ticket to Lima. His wife had parents in Lima. Although they had had a civil wedding, defendant was an Israeli citizen and he and his wife wished to have a Jewish ceremony. Defendant's trip to Lima was to try to arrange with his wife's family and a Rabbi for such a ceremony. He denied any connection with Shine's drug carrying activities. The defense concluded with testimony from defendant's wife and mother-in-law in which both corroborated defendant's story that his purpose in going to Lima was to arrange a Jewish wedding.

I. The Deposition

We face two questions concerning the deposition. The first is whether it was appropriate to permit the government to take the deposition. The second is whether the deposition was properly...