United States v. Franklin

• Decision Date: 20 August 1970
• Docket Number: No. 20035.,20035.
• Citation: 429 F.2d 274
• Parties: UNITED STATES of America, Appellee, v. James Eugene FRANKLIN, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

429 F.2d 274 (1970)

UNITED STATES of America, Appellee, v. James Eugene FRANKLIN, Jr., Appellant.

No. 20035.

United States Court of Appeals, Eighth Circuit.

July 22, 1970.

Rehearing Denied August 13, 1970.

Rehearing Denied August 20, 1970.

Donald R. Wilson, Clayton, Mo., for appellant.

Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before VOGEL, HEANEY and BRIGHT, Circuit Judges.

Rehearing En Banc Denied August 13, 1970.

VOGEL, Circuit Judge.

James Eugene Franklin, Jr., defendant-appellant, was charged in a four-count indictment with violations of 26 U.S.C.A. § 4704(a) and 26 U.S.C.A. § 4705(a). Counts I and III charged unlawful purchases of heroin, while Counts II and IV charged violations of § 4705(a) in that the defendant was charged with selling narcotic drugs other than in pursuance of a written order. Defendant was found guilty by a jury on all four counts. He was thereafter sentenced to five years in the custody of the Attorney General on each of the four counts, the sentences to run concurrently.

In this direct appeal, defendant raises a number of claimed errors which he believes justify this court in reversing and directing a dismissal. In affirming, we consider each claim separately.

1. Defendant's first contention is that the trial court erred in denying his motion to dismiss the indictment because no record of the grand jury testimony of the government witness Agent Moriarty was made. Defendant claimed a "particularized need" for Moriarty's testimony before the grand jury in that Moriarty, in preparing or contributing to a Jencks Act statement referred to the defendant as James Eugene Franklin, Jr., alias "Foots" and it appeared that "Foots" was not the nickname of the defendant but that of John Franklin, the defendant's brother. Defendant relies principally upon Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L. Ed.2d 973, and also cites Melton v. United States, 10 Cir., 1968, 398 F.2d 321. In both cases, a record was made of the testimony before the grand jury. Therein it was established that the defendants had a "particularized need" for the grand jury testimony and that the ends of justice required it be produced. See United States v. Youngblood, 2 Cir., 1967, 379 F.2d 365, 367-368. In the instant case, however, no record was made of the grand jury testimony so that defendant's request therefor could not be complied with. Rule 6 of the Federal Rules of Criminal Procedure, 18 U.S.C. A., provides that a record may be made of the testimony but it is not mandatory. We know of no case which holds that the failure to record and transcribe testimony given before a grand jury is ground for dismissal of any indictment returned. In McCaffrey v. United States, 10 Cir., 1967, 372 F.2d 482, cert. denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332, in answer to a similar contention, the court held squarely that there was no requirement that grand jury proceedings be recorded or transcribed. In Loux v. United States, 9 Cir., 1968, 389 F.2d 911, at page 916, cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L. Ed.2d 135, the court held:

"The law does not require that the testimony of witnesses before a grand jury be recorded or transcribed. Rule 6(d), F.R.Crim.P. is permissive, not mandatory. Every court that has considered the question has so held. United States v. Caruso, 2 Cir., 1966, 358 F.2d 184, 186; United States v. Cianchetti, 2 Cir., 1963, 315 F.2d 584, 591; United States v. Martel, D.C.N. Y., 1954, 17 F.R.D. 326 (cited with approval in Cianchetti, supra); United States v. Hensley, 6 Cir., 1967, 374 F.2d 341, 352; Welch v. United States, 10 Cir., 1966, 371 F.2d 287, 291. Nor is there support for the claim that failure to record grand jury testimony violates the defendants\' constitutional rights. United States v. Cianchetti, supra, and United States v. Hensley, supra, are to the contrary. See also Lawn v. United States, 1958, 355 U.S. 339, 349-350, 78 S.Ct. 311, 2 L.Ed.2d 321; Costello v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397."

While Loux is perhaps justifiably coming under criticism, see United States v. Thoresen, 9 Cir., 1970, 428 F.2d 654 (majority and concurring opinions), it still is controlling authority. See Jack v. United States, 9 Cir., 1969, 409 F.2d 522, 524.¹

We might point out additionally that counsel for defendant, through the use of Jencks Act statements, was able to bring out on cross-examination the fact that there was some confusion as to whether or not the defendant was known as "Foots". There was no prejudice to the defendant and the trial court properly overruled the motion to dismiss the indictment for failure to have the testimony before the grant jury recorded and transcribed.

2. Defendant's second contention is that the trial court erred in allowing Agent Stamm to testify, over objection, with respect to a pre-trial photograph identification of defendant by the informer Gibson. Defendant cites and relies on Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

The substance of what Agent Stamm testified to was that after the March 13, 1969, purchase of heroin by informer Gibson, Gibson was given a number of photographs from which he identified one as that of defendant as the seller. We find no violation of the proscriptions set forth in Simmons, which also held "* * * each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971. Here the informer picked out a picture from a number exhibited to him subsequent to the sale episode. He also identified the defendant in court at the time of trial. Furthermore, he testified that he knew the defendant for approximately a year and a half before the in-court identification. We find nothing "impermissively suggestive" or unfair or prejudicial to the defendant in the manner of handling the identification of defendant.

3. Defendant next complains that the trial court erred in refusing to compel the witness Agent Moriarty to comply with the subpoena duces tecum which had been served upon him. By subpoena duces tecum defendant sought to obtain from Agent Moriarty three things: (1) a photograph of the defendant with "Foots" written on the back side; (2) the arrest and conviction record of the witness informer Gibson; and (3) disbursements made by the government to informer Gibson. As to the photograph, Moriarty denied its existence, which contention was supported by other testimony. With reference to the second request, Moriarty stated that to his knowledge Gibson had no record of convictions of either the federal or state narcotics laws. Accordingly, he was unable to furnish record thereof. As to the third request, Moriarty stated that he knew and could furnish the information requested and he stated that the amount of money paid for the period March 3rd through the Thursday before the trial date, October 23, 1969, was $786.00. We think the court could well have insisted on Moriarty's bringing to the court such records as existed regarding the payments made to the informer Gibson but we do not believe that failure to do so justifies a conclusion that the defendant was prejudiced thereby.

4. Defendant's fourth complaint is that the trial court erred by unduly restricting his cross-examination of the informer Gibson. During the cross-examination of Agent Moriarty, it appeared that Moriarty had not brought any material indicating violations of the federal or state narcotic laws by the informer, George Gibson. The following occurred out of the hearing of the jury:

"MR. WILSON Attorney for defendant: Your Honor, I request that the witness be held in contempt.

"THE COURT: He says he has the information in his head.

"MR. WILSON: In addition, Your Honor, he has been subpoenaed to bring books and records.

"THE COURT: Let me see.

"MR. STRAUB Attorney for the government: Your Honor, he has no access to F.B.I. records so far as prior convictions are concerned with respect to this witness or the informant.

"MR. WILSON: I know this man has a prior record. That has sic been brought from the Police Department today. I think it is directly relevant to indicate the hold they have on this informant.

"THE COURT: This is an arrest, this isn\'t a conviction.

"MR. STRAUB: I think the question is whether he has been convicted.

"THE COURT: You can\'t get the information from this witness. If he the informer Gibson takes the stand then you have a perfect right to ask about convictions, or show convictions. Arrests are not admissible anyhow.

"MR. WILSON: It is our position, Your Honor, that these are narcotics violations which this gentleman and his office have handled and they decide whether the information is produced.

"THE COURT: That is not true.

"MR. WILSON: I simply want to know if this man has a string of narcotics offenses and he has the information I am quite sure in his possession.

"THE COURT: You can ask him as to what convictions he has had. Go ahead and ask him."

The following occurred in the presence and hearing of the jury:

"Q (By Mr. Wilson) Did I understand, Mr. Moriarty, from your previous answers to my questions that although you have no papers here with you you know the answer to my request?

"A Yes, sir, I believe I do.

"Q Could you tell me what your answer is?

"A The subject, George C. Gibson, to my knowledge, this I know for a fact, sir, has no Federal Narcotics violations. To my knowledge he has no State narcotic convictions or violations.

"Q What do you mean by using the term violations?

"A Whether it be suspect or something he was actually committed

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