U.S. v. Snow, 75-1403

• Decision Date: 29 March 1976
• Docket Number: No. 75-1403,75-1403
• Citation: 537 F.2d 1166
• Parties: UNITED STATES of America, Appellee, v. Randolph E. SNOW, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1166

537 F.2d 1166

UNITED STATES of America, Appellee, v. Randolph E. SNOW, Appellant.

No. 75-1403.

United States Court of Appeals Fourth Circuit.

Argued Oct. 7, 1975.

Decided March 29, 1976.

Alan J. Cilman, Alexandria, Va., for appellant.

Elsie M. Powell, Asst. U. S. Atty., Annandale, Va. (William B. Cummings, U. S. Atty., Norfolk, Va., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Appellant, Randolph Snow, appeals his conviction of aiding and abetting one George Fediay in the distribution of cocaine in violation of 21 U.S.C. § 841(a) (1). Snow was tried by a jury, found guilty, and sentenced to three years imprisonment, service of two and one-half years of which was suspended. George Fediay entered a plea of guilty to conspiracy to distribute cocaine, and upon acceptance of his plea the charge of distribution of a controlled substance, cocaine, was dismissed.

The record indicates that on July 24, 1974, David Woodside, a government informer, introduced Charles Story, a government narcotics agent, to both Fediay and Snow. Story, acting in an undercover capacity, purchased cocaine from Fediay at his first meeting in the District of Columbia and a second agent, Ray Malczewski, observed this transaction from a distance. Snow was present at the sale, but did not handle either the drugs or the money. Less than two months later, Snow approached Story at a bar in the District of Columbia whereupon Story indicated that he wanted to purchase more cocaine. Snow arranged a meeting between Story and Fediay the following day, September 9, 1974, at Snow's Arlington, Virginia, residence. At that meeting the three men discussed and arranged the sale of a "bag" of cocaine and Fediay delivered the "bag" to Story for fourteen hundred dollars. Again Snow did not handle either the money or the bag of cocaine, although he was present throughout the exchange. After the transaction was concluded Fediay gave Snow twenty dollars.

Snow was subsequently arrested in the District of Columbia on charges arising out of the Virginia transaction and was brought before a federal magistrate in the Eastern District of Virginia. Upon Snow's petition, however, District Judge Bryan returned the case to the District of Columbia for a preliminary hearing. At this hearing, Snow was bound over to answer any indictment which might be returned against him by the grand jury in the Eastern District of Virginia. The grand jury for the Eastern District of Virginia indicted Fediay and Snow on a charge of distribution of cocaine in Virginia. Snow then moved the district court for a change of venue to the District of Columbia, but District Judge Lewis denied his motion. With Judge Bryan presiding, Snow was tried and convicted by a jury on the charge brought against him in Virginia.

On appeal, Snow raises four issues: (1) whether the Assistant United States Attorney's failure to comply with the Jencks Act, 18 U.S.C. § 3500, requires reversal; (2) whether the court erred in refusing to allow Snow the opportunity to present a "purchasing agent" defense; (3) whether the district court erred in denying Snow's motion for a change of venue; and (4) whether Snow could be convicted of aiding and abetting the distribution of a controlled substance when the distribution charge against the principal, Fediay, had been dismissed.

Snow's first contention is that the government attorney failed to comply with the Jencks Act, 18 U.S.C. § 3500. The record indicates that Snow's attorney stated at trial that he had received no "grand jury testimony" and the Assistant United States Attorney responded that the Government had "no recorded grand jury testimony" in the case. The Assistant United States Attorney stated that several months after the conclusion of Snow's trial she learned that testimony concerning the earlier District of Columbia transaction given by Woodward, Story and Malczewski before a District of Columbia grand jury had been reported and transcribed. She has submitted an affidavit to this court in which she states that, at the time the request for Jencks Act material was made, she was unaware that testimony before the grand jury of the District of Columbia had been reported and transcribed and she had no intention of deceiving, misleading or perpetrating a fraud upon the court or the defendant.

The purpose of the Jencks Act is to make any existing prior statement of a government witness concerning matters covered by direct examination equally available to the defense and the prosecution. United States v. Cruz,478 F.2d 408 (5 Cir.), cert. denied, see Aleman v. United States, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973). Since it is ordinarily difficult upon review of a cold record to ascertain the value to the defense of a statement withheld, violation of the Act should be excused only where it is perfectly clear that the defense was not prejudiced by the omission. United States v. Missler, 414 F.2d 1293 (4 Cir. 1969).

The material in question herein was the recorded testimony of three witnesses before a District of Columbia grand jury concerning the earlier D. C. drug transaction which involved Snow. The statement of one grand jury witness, Woodside, was clearly not within the scope of the Jencks Act since Woodside did not testify at Snow's trial. United States v. Anderson, 481 F.2d 685 (4 Cir. 1973), aff'd on other grounds, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The statements of the other two witnesses, Story and Malczewski, who testified at Snow's trial, arguably may have been Jencks Act material as defined by 18 U.S.C. § 3500(e)(3).

We find it unnecessary, however, to reach the question of whether transcribed grand jury testimony pertaining to another alleged crime, given in another district, is within the scope of the Jencks Act since it is clear that Snow was not prejudiced by the prosecution's failure to produce the two statements.

As to Agent Malczewski, the grand jury testimony withheld did not relate to the same incidents about which he testified at trial, thus making the grand jury testimony inadmissible for cross-examination. As to Agent Story, it is clear that substantially the same information was furnished to defense counsel from other sources. Snow does not suggest in what particular the grand jury testimony would have been helpful in the cross-examination of the two agents or that the absence of such testimony prejudiced his defense. Instead, Snow's counsel concerns himself in his brief with berating the prosecution for what he terms the deliberate and deceptive suppression of Jencks Act material. There is no evidence, however, which indicates that the Assistant U. S. Attorney for the Eastern District of Virginia either had knowledge at the time of the trial that the District of...