U.S. v. Walker, s. 76-1105
| Decision Date | 30 June 1976 |
| Docket Number | Nos. 76-1105,76-1163,s. 76-1105 |
| Citation | 538 F.2d 266 |
| Parties | UNITED STATES of America, Appellee, v. Wilbur WALKER, Appellant. UNITED STATES of America, Appellee, v. Floyd TAYLOR, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before ELY and CHOY, Circuit Judges, and ORRICK, * District Judge.
Taylor and Walker were convicted by a jury of conspiring to distribute and of distributing heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). Taylor received concurrent sentences of 10 years imprisonment on each of three counts, plus concurrent special parole terms of three years. Walker was sentenced to concurrent terms of three years on each of three counts and special parole terms of three years, also to run concurrently. They appeal their convictions on several grounds. We affirm.
On June 10, 1975, Agent Williams of the Drug Enforcement Administration (DEA) was introduced to the appellants by an informant. According to Agent Williams, Walker told him that he (Walker) and Taylor carried out most of their drug transactions as joint ventures. A sale of heroin was arranged for the following day. On June 11, Agent Williams and the informant met Taylor, from whom Williams bought a quantity of heroin. On June 27th, sixteen days later, the agent called Walker in an unsuccessful attempt to arrange another sale. Agent Williams tape recorded his conversation with Walker.
On September 19, 1975, Taylor learned of an outstanding warrant for his arrest and on September 22nd surrendered himself to the office of the United States Marshal. After being released on bail, Taylor met two DEA agents at a restaurant on September 29th. One of the agents read Taylor the latter's so-called Miranda rights, and thereafter Taylor made statements incriminating himself and Walker. At the request of the agents, Taylor met them at the United States Attorney's office two days later and initialed a written statement, again implicating both him and Walker.
At trial, the informant testified that she had witnessed Taylor and Walker distributing narcotics on approximately 10 occasions during the previous 4 years. Both appellants testified. Taylor denied his statements concerning Walker and claimed that any incriminatory comments he may have made were a result of duress. The agents swore that Taylor had not been coerced.
Walker and Taylor here argue that they were denied adequate discovery and that the jury panel was illegally constituted because eighteen-year-old voters had not been mixed into the jury system as promptly as they thought proper. The record does not reveal any basis for reversal on the two contentions just mentioned. However, Walker's argument that he should have been allowed to discover the tape recording made by Agent Williams of his June 27th telephone conversation with Walker merits some discussion.
Prior to trial, Walker filed a motion for discovery pursuant to Rule 16, Fed.R.Crim.P., in which he asked for "(a)ny statements made by the defendant which relate to this case." Despite this, the existence of the tape recording was not discovered by Walker until the course of the cross examination of Agent Williams in the midst of the trial. Walker contends that the tape recording is a statement "made by the defendant" within the meaning of Rule 16(a)(1) 1 and that the government's failure to reveal it to him until trial constitutes reversible error. This is a question of first impression in this court.
Several other Courts of Appeals have considered the issue and have held that tape recordings of conversations between an accused and a government informer or agent are discoverable statements of the defendant under the aforementioned Rule. United States v. James, 495 F.2d 434 (5th Cir.), cert. denied, 419 U.S. 899, 95 S.Ct. 181, 42 L.Ed.2d 144 (1974); United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971); Davis v....
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...been different had the government complied with the discovery rules, not had the evidence been suppressed. See United States v. Walker, 538 F.2d 266, 268-69 (9th Cir.1976).9 Shortly after the trial began, the district court stated that "the Government has bent over backwards to make informa......
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...which the accused had participated while preparing for, or in the course of committing, the crime charged. See, e.g., United States v. Walker, 538 F.2d 266 (9th Cir.1976) (recording by undercover agent of drug transaction); United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971) (drug transact......
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