United States v. Moriarty

• Citation: 497 F.2d 486
• Decision Date: 19 July 1974
• Docket Number: No. 73-3524.,73-3524.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter John MORIARTY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

497 F.2d 486 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Walter John MORIARTY, Defendant-Appellant.

No. 73-3524.

United States Court of Appeals, Fifth Circuit.

July 19, 1974.

P. D. Aiken, Miami Beach, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

DYER, Circuit Judge:

Moriarty appeals from his jury conviction of possession of and trafficking in contraband in violation of 21 U.S.C.A. § 841(a) (1). His contentions on appeal are threefold: (1) that the hearsay testimony of the Government's rebuttal witness with respect to Moriarty's entrapment defense was both false in nature and incurably tainted by a violation of the court's order sequestrating witnesses; (2) that the court abused its discretion by denying Moriarty's motion for a continuance; and (3) that the court erred in giving the Allen charge upon the jury's advising that it was "hung." We affirm.

The outcome of Moriarty's trial rested principally upon the issue of entrapment vel non, inasmuch as the critical facts were in large measure undisputed. The evidence demonstrated that Moriarty had initially met a Government informer, Bevilacqua, in entirely fortuitous and innocent circumstances in early June 1973 when Moriarty picked up Bevilacqua while the latter was hitchhiking. From this origin, the relationship flourished due, as Moriarty sees it, to the appellant's altruistic concern for Bevilacqua's distressed circumstances. Eventually, Bevilacqua requested his philanthropic confidant to procure cocaine for a relative who would soon arrive in town. Moriarty initially demurred, but finally acquiesced in the face of Bevilacqua's repeated petitioning.

By prior arrangement, Moriarty, accompanied by a girl friend, Susan King, rendezvoused with Bevilacqua on July 10, 1973, at which time Bevilacqua introduced Moriarty to a law enforcement officer, Dietrich, who was posing as the out-of-town relative. Moriarty protested the outsider's presence, indicating that he had intended to do business with Bevilacqua alone, but soon relented to Dietrich's intrusion. The parties then got into Moriarty's car, and while driving around the neighborhood consummated the transaction with Dietrich paying over $1,700 to Moriarty in exchange for two ounces of cocaine.¹ Upon completing the deal, Dietrich placed Moriarty and King under arrest.

On the morning of trial, September 4, 1973, counsel for Moriarty and King moved for a continuance so that King could employ separate counsel and thereby obviate any possible conflict of interest on the part of counsel arising from the co-defendants' assertion of inconsistent defenses. Despite misgivings over the eleventh-hour nature of this request, the district court granted the motion and rescheduled the trial, with counsel's concurrence, for September 10. On September 5, Moriarty's counsel unsuccessfully moved for another continuance on the ground of the impending absence of two defense witnesses. The motion was renewed on the morning of trial but was again denied. In the course of relating the reasons warranting a continuance, counsel for Moriarty indicated that one witness had left the country on vacation, that Moriarty had known of the witness' upcoming trip but felt he could be induced to stay or else another continuance could be obtained, that counsel was fearful of inconveniencing the witness by forcing him to cancel the trip, and thus no subpoena was ever issued. No explanation was given with respect to the second witness, who was apparently in St. Louis at the time, other than that counsel was "trying" to get in touch with him. Counsel indicated that these two witnesses could corroborate Moriarty's anticipated testimony to the effect that Bevilacqua had constantly hounded him by placing numerous telephone calls to Moriarty's various quarters.

The trial proceeded as scheduled with Moriarty testifying in his own defense that, although he did illicitly transact business with Dietrich, he was entrapped by virtue of Bevilacqua's incessant demands for cocaine. In addition to the testimony of Bevilacqua and Dietrich in its case-in-chief, the Government called as a rebuttal witness Officer McDonald, who testified that on a previous occasion he had been told by an informant that Moriarty was a dealer in cocaine and that pursuant to this information, McDonald and the informant unsuccessfully sought to buy contraband from Moriarty. Moriarty objected to this line of questioning solely on grounds of hearsay, although counsel also elicited on cross-examination an admission by McDonald that he had conversed with Officer Dietrich with respect to his forthcoming testimony, even though Dietrich was fully aware that the rule of sequestration of witnesses was in effect. This latter point of alleged error was subsequently made a basis of Moriarty's motion for a new trial, which was denied.

Upon completion of the trial, the jury retired for deliberations but soon advised the court that it was "hung." The court thereupon gave the Allen charge to the jury, which shortly thereafter returned a verdict of guilty.

TESTIMONY OF OFFICER McDONALD

Moriarty attacks the rebuttal testimony of Officer McDonald on various grounds. Although recognizing the hearsay evidence is admissible to prove predisposition when an accused interposes the defense of entrapment, see, e. g., United States v. McKinley, 5 Cir. 1974, 493 F.2d 547, 552; United States v. Simon, 5 Cir. 1973, 488 F.2d 133, 134; United States v. Stills, 5 Cir. 1973, 476 F.2d 592, 593, Moriarty protests that this hearsay evidence was proven false by McDonald's own testimony, that the testimony in any event was the poisoned fruit of flagrant violations of the sequestration rule by McDonald's conversing with Officer Dietrich, and that even if admissible, this suspect testimony was insufficient to prove Moriarty's predisposition beyond a reasonable doubt. We find none of these contentions persuasive.

First, the hearsay statements were in no sense proven "false" by McDonald's further testimony about events of which he had personal knowledge. The general tip that Moriarty trafficked in narcotics was simply not rendered inaccurate by Moriarty's subsequent refusal to transact business with two particular individuals on a single occasion. Indeed, McDonald testified that Moriarty, far from disclaiming any knowledge of narcotics dealing on the earlier occasion, simply excused himself from entering into any negotiations because of the presence of friends in...