United States v. Brown

• Decision Date: 10 October 1979
• Docket Number: Crim. No. K-79-054.
• Citation: 479 F. Supp. 1247
• Parties: UNITED STATES of America v. Donna B. BROWN.
• Court: U.S. District Court — District of Maryland

479 F. Supp. 1247

UNITED STATES of America v. Donna B. BROWN.

Crim. No. K-79-054.

United States District Court, D. Maryland.

October 10, 1979.

Russell T. Baker, Jr., U.S. Atty., Robert P. Trout and Kurt L. Schmoke, Asst. U.S. Attys., Baltimore, Md., for plaintiff.

Harold Buchman, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

Donna B. Brown (Brown) was found guilty by a jury on April 16, 1979 following a trial which began on April 4, 1979 on charges of giving false testimony before a federal grand jury in violation of 18 U.S.C. § 1623.¹ Brown moved for a new trial on the following grounds:

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1. The trial court erroneously prevented the defendant from examining a hospital record pertaining to the hospitalization of the government's chief witness. The record had been subpoenaed by the defendant, and may have contained material and relevant evidence relating to the credibility and reliability of the witness or other areas of aid in cross-examination. Even though unprivileged, the court denied defendant access to the hospital record.

2. The court thus not only erred in depriving the defendant of unprivileged evidentiary matter but the denial of the access to duly subpoenaed material amounted to a denial of due process and a fair trial under the Fifth Amendment.

That motion has been denied. Herein, this Court reviews and amplifies its reasons for that denial.

During 1975, a special grand jury of this Court investigated the activities of Maryland's Governor, Marvin Mandel, and others.² Diane E. Lawrence (Lawrence), a close personal friend of Brown, was a member of that grand jury.

During September 1978, another special grand jury investigated allegations of possible jury tampering and obstruction of justice in connection with the Mandel case. In late October 1978 Brown appeared before that latter grand jury and denied any involvement in or knowledge of any attempt by her in October 1975 to buy or otherwise procure information from any member of the special grand jury which had been investigating the Governor and others in October 1975. Brown's said October 1978 testimony formed the basis for the perjury charges for which she was convicted on April 16, 1979 and as to which her motion for new trial was filed.

Brown was indicted on February 6, 1979. Prior to trial, during a motion hearing, counsel for Brown indicated that the defense theory of the case would be that everything that Brown did or said in her discussions with Lawrence during October 1975 was a "hoax" perpetrated by Brown. Trial evidence, i. e., recorded conversations, subsequently revealed that Brown discussed with Lawrence on a number of occasions, both in person and by telephone, a plan for obtaining a sizable monetary payment from one or more of the persons who, the newspapers were suggesting in October 1975, were targets of the grand jury on which Lawrence was serving. During the pre-trial period, the government proffered that its evidence against Brown would include the testimony of Lawrence, and also tape recordings of pertinent conversations between Brown and Lawrence during which Brown discussed with Lawrence the possibility that Lawrence might reveal, for money, details of matters, which according to newspaper reports, were under consideration by the grand jury on which Lawrence was serving. The tapes were obtained after Lawrence forthwith reported Brown's initial approach to her to a judge of this Court, and agreed to cooperate, at the request of the FBI, in the government's investigation of Brown's approach to Lawrence.³ Trial was scheduled to commence in this case on April 4, 1979. On March 30, 1979 in a chambers conference with counsel for both sides and counsel for the hospital, this Court learned that counsel for Brown had issued a subpoena duces tecum to the custodian of records of a hospital located in the City of Baltimore, for the production of certain of its records relating to a period when Lawrence had been a voluntary psychiatric in-patient at that hospital. Brown's counsel stated that Brown desired those records for the purposes stated in the instant motion for a new trial. The government opposed such production.⁴ Counsel for the hospital stated that the hospital would produce those records only under the compulsion of an Order by this Court.

Subsequently, at the request of this Court, an experienced trial attorney, a former United States Attorney for this District, agreed to act as counsel to Lawrence in the matter of the subpoena issued to the hospital. On April 2, 1979, counsel for the government, Brown, the hospital, and Lawrence, conferred in chambers with this Court, on the record, in an attempt to resolve the dispute relating to the subpoenaed records. All parties agreed that the transcript of proceedings during that in camera hearing should be sealed. Also by agreement, the hospital records were produced by counsel for the hospital and were reviewed by this Court and by Lawrence⁵ and her counsel. Thereafter, this Court and counsel for Lawrence stated to all counsel and to Brown that the psychiatric records related to a period of time during November, 1976, and contained nothing concerning Lawrence's service on the grand jury, nothing relating to Brown or the relationship between Lawrence and Brown, and nothing concerning the charges against Brown or the government's prosecution of Brown. Thereafter, Lawrence restated her desire to maintain the confidentiality of the records and asserted her state law privilege with respect thereto.⁶ Counsel for Brown pressed his demand for production of the records under protective order for review by Brown and himself, stressing the possible usefulness of the information in the records during cross-examination and impeachment of Lawrence. The government maintained that the records were not sufficiently relevant or material to any issues, including those of credibility and reliability. Thereafter, this Court briefly examined Lawrence on the record, with her counsel present but out of the presence of counsel for the government, Brown, and the hospital. Defense counsel did not object to this Court's in camera⁷ examination of the records and of Lawrence, but objected at all times to any procedure or ruling which denied to Brown and himself the opportunity to review the records. Thereafter, in a Memorandum dated April 3, 1979, this Court set forth in part its reasons for denying defense counsel's request to examine the psychiatric records and its determination of Lawrence's competency to testify.

The trial commenced on April 4, 1979. On April 16, 1979 Brown was found guilty. The instant motion for a new trial was timely filed on April 23, 1979.

Brown's pre-trial and post-trial objections to the non-production of the records were and are framed in a due process/Fifth Amendment context. However, the Sixth Amendment right to effective cross-examination of adverse witnesses also underlies Brown's contention of unfairness and prejudice. The fundamental principles that give meaning and shape to that Sixth Amendment right were set forth by Judge Carter in Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977) cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978):

The Sixth Amendment right to confrontation is embodied largely by the right to cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940); United States v. Harris, 501 F.2d 1 (9 Cir. 1974). If the right to effective cross-examination is denied, constitutional error exists without the need to show actual prejudice. Davis v. Alaska, supra; Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Harris, supra at 9.

However, the defendant does not have the unrestricted right to cross-examine adverse witnesses on any matter desired. Initially the cross-examination must be shown to be relevant. The determination of relevancy is within the discretion of the trial court. United States v. Trejo, 501 F.2d 138 (9 Cir. 1974); Enciso v. United States, 370 F.2d 749, 751 (9 Cir. 1967).

Next, topics of inquiry which pass the relevancy hurdle are subject to the trial court's further discretion as to the proper extent of cross-examination. In Alford, supra, 282 U.S. at 694, 51 S.Ct. at 220 the Supreme Court ruled:

"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. Storm v. United States, 94 U.S. 76, 85, 24 L.Ed. 42; Rea v. Missouri, 17 Wall. 532, 542-43, 21 L.Ed. 707; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725." Citations omitted.

Relevancy and the proper extent of cross-examination are closely interrelated. For example, a topic which is highly material deserves extensive cross-examination. But some topics may be of such minimal relevance that the trial court would be justified either in totally prohibiting cross-examination about them or in allowing only limited questioning. Citations omitted.

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The test for whether cross-examination about a relevant topic was effective, i. e., whether the trial court has abused its discretion, is whether the jury is otherwise in possession of sufficient information upon which to make a discriminating appraisal of the subject matter at issue. When the refused cross-examination relates to impeachment evidence, we look to see whether the jury had sufficient information to appraise the bias and motives of the witness. Citations omitted.

No general psychiatrist-patient or hospital-patient privilege is available as a bar to the production of documents under Maryland law or under the Federal Rules of Evidence (see Rule 501). However, in a...