U.S. v. Welch

• Decision Date: 06 February 1987
• Docket Number: No. 86-4104,86-4104
• Citation: 810 F.2d 485
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilton A. WELCH, Jr., and Wilton A. Welch, III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 485

810 F.2d 485

UNITED STATES of America, Plaintiff-Appellee, v. Wilton A. WELCH, Jr., and Wilton A. Welch, III, Defendants-Appellants.

No. 86-4104.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1987.

Julie Epps, Jackson, Miss. (Court-appointed), for Welch, Jr.

Robert W. Sneed, Jackson, Miss. (Court-appointed), for Welch, III.

Ruth R. Hams, Asst. U.S. Atty., and George Phillips, U.S. Atty., Jackson, Miss., for the U.S.

Appeals from the United States District Court for the Southern District of Mississippi.

Before VAN GRAAFEILAND, ^* HIGGINBOTHAM, and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendants appeal their conviction under 21 U.S.C. Sec. 846 of conspiracy to "manufacture, distribute and possess with intent to distribute phenylacentone and methamphetamine." They argue that the jury charge did not sufficiently explain their defense that they were acting under a reasonable belief that they were cooperating with the FBI, that the 23-month delay from arraignment until trial violated the Speedy Trial Act, 18 U.S.C. Sec. 3161, and that the government's failure to produce a Drug Enforcement Administration agent's investigation reports violated the Jencks Act, 18 U.S.C. Sec. 3500. We are persuaded that the district court's jury instructions were adequate and that the pretrial delay was excludable under the Speedy Trial Act, but we remand to the district court to review in camera the investigation reports as the Jencks Act requires.

I

In the fall of 1983, Wilton Anthony Welch, Jr., and James Howell acquired a formula for making "speed." They sought the financial assistance of Glen Crane, who provided money for the purchase of chemicals and equipment. Crane rented a house under an assumed name, and the three men made several unsuccessful attempts to manufacture speed. On occasion, Wilton Anthony Welch III watched the three and helped clean up.

Meanwhile, Ronald Gospodarek, a special agent with the DEA, learned that Howell had made frequent purchases of chemicals that could be used to manufacture controlled substances. Gospodarek began an investigation that led to a meeting with Howell and Crane to discuss the manufacture of methamphetamine. Gospodarek testified that Howell and Crane agreed to pay him $5,000.00 for his help in manufacturing methamphetamine.

On December 1, 1985, Gospodarek began to teach Howell and Crane how to make methamphetamine. Later, Welch, Jr., arrived and Crane introduced him to Gospodarek as a "major backer" of the scheme. Gospodarek explained how to monitor the manufacturing process and then returned to his motel. The next day Gospodarek gave DEA agents the information needed to obtain a search warrant, which led to the arrest of Howell, Crane, Welch, Jr., and Welch III.

The indictment charged Howell, Crane, Welch, Jr., and Welch III, with conspiracy to manufacture, distribute, and possess with intent to distribute controlled substances in violation of 21 U.S.C. Sec. 846. Crane was also charged with violating 21 U.S.C. Sec. 843(b), and Crane and Howell were charged with violating 18 U.S.C. Sec. 2 and Sec. 1952(a)(3). Crane and Howell pled guilty before trial. A jury found Welch, Jr., and Welch III guilty of the conspiracy charge.

II

The Welches argued at trial that they participated in the conspiracy because they reasonably believed that they were cooperating with the FBI as informants and therefore lacked the required specific intent. The Welches argue that the district court's explanation to the jury of their defense was inadequate and plain error--plain error because they admittedly did not request additional explanation of their defense and did not object to the court's explanation.

An error in a charge is plain only when, considering the entire charge and the evidence presented against each defendant, there is a likelihood of a grave miscarriage of justice. United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). The district court told the jury:

You may consider whether or not the defendants or either of them were cooperating with the F.B.I. with regard to the specific offense charged in the indictment in determining whether the defendants possessed the intent necessary to commit the crime charged.

The asserted inadequacy is that this instruction required a showing that the Welches were in fact cooperating with the FBI. In their view, the charge should have required only that they demonstrate that they had a good faith, though mistaken, belief that they were cooperating with the FBI.

The argument by necessity depends upon a cropped view of the charge, unacceptably so, because "[w]e review claimed deficiencies in a jury charge by looking to the entire charge" in the context of trial including counsel's closing arguments. United States v. Chagra, 807 F.2d 398, 402 (5th Cir.1986). Here, the closing arguments were not included in the record on appeal. But the disputed instruction was adequate when read as part of the entire charge. Indeed, before giving the assertedly inadequate explanation, the court told the jury:

The crime charged in this case requires proof of specific intent before the defendants can be convicted. Specific intent means more than the general intent to commit the act. To establish specific intent, the Government must prove beyond a reasonable doubt that the defendants knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.

We are persuaded that the charge, read as a whole, suggests to the jury that the defendants would be entitled to their contended for good faith defense if they thought they were cooperating with the FBI and not violating the law. There was no plain error.

III

The Welches contend that the district court erred in not granting their motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174. The Speedy Trial Act requires that a defendant be tried within seventy days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. 18 U.S.C. Sec. 3161(c)(2). Here, the seventy-day period began to run on January 11, 1984, the date of Welch III's arraignment. ¹ The trial did not start until December 12, 1985. However, Sec. 3161(h)(1)(F) excludes from the seventy-day limit "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." On January 25, 1984, Welch III filed a Motion for Discovery, and the court issued an Agreed Discovery Order on April 9, 1984. In addition, on January 25, 1984, Welch III filed a Motion for Severance requesting that his case be severed from the other defendants. The motion was noticed for February 24, 1984, and later for June 8, 1984; but no hearing on the motion ever took place. On June 11, 1984, defendants Howell and Crane pled guilty. The case went to trial without a hearing or dispositive order on the motion to sever.

Welch III argues that he abandoned the severance motion after Crane and Howell pled guilty. However, by its terms, the motion to sever still applied to Welch, Jr., after Crane and Howell pled guilty, and we find nothing in the record to suggest that the government or the court was told that the severance was no longer requested. Welch III argues that in any event a delay of a year-and-a-half is unreasonable. But in Henderson v. United States, --- U.S. ----, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986), the United States Supreme Court held that "Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.' " Nothing in the record suggests that Welch III attempted unsuccessfully to receive a hearing or that a hearing was deliberately refused with intent to evade the Speedy Trial Act. Therefore, the time from January 25, 1984, until the trial began was excludable under the Speedy Trial Act. See United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983); see also United States v. Schuster, 777 F.2d 264, 268, vacated as moot, 778 F.2d 1132 (5th Cir.1985). Accordingly, the trial commenced timely.

IV

The Welches contend that the district court's denial of defendants' request for production of two investigation reports prepared by Agent Gospodarek violated the Jencks Act, 18 U.S.C. Sec. 3500. During voir dire examination of Gospodarek by counsel for Welch III, Gospodarek testified that he had prepared three reports about his undercover investigation. The government had provided one of the reports to defense counsel during plea-bargaining and only the other two reports were at issue. Gospodarek testified that one report involved his investigation of Crane and Howell in Houston, Texas, and the other was a "general intelligence report" concerning the purchases of chemicals.

After learning of these reports defense counsel asked the court to order their production. ² The prosecutor replied that Gospodarek's reports of the investigation were not Jencks Act statements. The district court denied the defendant's motion without conducting an in camera review of the reports, persuaded by the government's trial counsel that "such reports as have been described by [Gospodarek] are not section 3500 material or Jencks Act material."

Section 3500 of the Jencks Act provides in part:

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which...