United States v. Roell

• Decision Date: 12 November 1973
• Docket Number: No. 73-1331.,73-1331.
• Citation: 487 F.2d 395
• Parties: UNITED STATES of America, Appellee, v. Steven Elmer ROELL and Carrie Lee Manning, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

487 F.2d 395 (1973)

UNITED STATES of America, Appellee, v. Steven Elmer ROELL and Carrie Lee Manning, Appellants.

No. 73-1331.

United States Court of Appeals, Eighth Circuit.

Submitted October 17, 1973.

Decided November 12, 1973.

COPYRIGHT MATERIAL OMITTED

Sherman Bergstein, Minneapolis, Minn., for appellants.

John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

This appeal results from the joint trial and conviction, by a jury, of Steven Elmer Roell and Carrie Lee Manning. Roell was charged with violating the provisions of 21 U.S.C. § 841(a)(1) in a four count indictment, with the knowing and intentional distribution of cocaine on September 22, 1972, and September 25, 1972, and with the knowing and intentional possession of cocaine with intent to distribute on those dates. Manning was charged with knowing and intentional distribution of cocaine on September 22, 1972, and knowing and intentional possession of cocaine with intent to distribute on September 22, 1972. Roell and Manning were found guilty on all counts. We affirm the judgments of conviction.

Roell, with his partner, Thomas Johnson, owned and operated Stone Bleu, Inc. Manning was a secretary, and Johnson's fiance. Special Agent McDowell, of the Bureau of Narcotics and Dangerous Drugs (BNDD) purchased one ounce of cocaine from Roell at the Stone Bleu for $1,100 on September 22, 1972. At the meeting was Eric Zylman, a friend of Roell and an informant for the Government. Just prior to the sale, Manning brought the drug to the Stone Bleu and gave it to Roell. On September 25, 1972, Agent McDowell and Agent O'Connor purchased an additional ounce of cocaine from Roell at the Stone Bleu, paying $1,100. Neither Zylman nor Manning were present at this transaction. Roell was arrested on November 10, 1972, and Manning was arrested on November 21, 1972.

At trial Roell contended that he was entrapped by Zylman. Manning contended that she was not aware that the substance she transferred was cocaine. On appeal Roell and Manning claim: the trial court erred in refusing pretrial disclosure of the identity and location of the informant Zylman and subsequently erred in allowing him to testify for the Government in rebuttal; the trial court erred in restricting cross-examination, direct examination, and closing argument; the trial court erred in refusing to grant Manning a separate trial; the trial court erred in denying a motion for mistrial; and the trial court erred when it made certain statements in the presence of the jury.

I. Zylman

The defendants, before trial, requested the identity and location of the Government's informant relying on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The motion was denied, and they now claim that the denial of this motion prejudiced them. It is clear that Zylman was instrumental in effecting the sale of the cocaine on both September 22, 1972, and September 25, 1972, although Zylman was not present at the September 25, 1972, sale.

This Court recently held, in United States v. Barnes, 486 F.2d 779 (8th Cir., 1973), that:

We think it clear from the cases decided since Roviaro that where the witness is an active participant or witness to the offense charged, disclosure will almost always by material to the accused\'s defense.

But the Barnes Court recognized that where the witness is produced at trial and the defendant is given an opportunity to cross-examine, no prejudice results. The Barnes Court further recognized that where the defendant already knows the identity of the informant, prejudice may not result. This Court in United States v. Woods, 486 F.2d 172 (8th Cir., 1973), recently held that no prejudice resulted when the Government failed to disclose the identity of the informant, but produced the informant at the trial, and the defendant was able to cross-examine the informant. The Court further noted that a motion for continuance was available in the Woods case had defense counsel been caught unprepared to cross-examine. This case is much stronger than the Woods case with respect to the validity of the Government's assertion that the defendants were not prejudiced.

The following factors should be noted:

1. During the cross-examination of the Government\'s first witness it became apparent that the defendants knew the identity of the informant, as counsel expressed an intimate knowledge of the informant\'s arrest for possession of marijuana.

2. Early in the defendants\' presentation of evidence, the Government identified the informant, stated that he was a University of Minnesota student, and indicated that the informant could be called by defendants.

3. Defense counsel made it clear that on Friday before the trial started on the following Monday that he suspected who the informant was. In closing argument, counsel stated: "Last Friday when we got some papers from the U. S. District Attorney we were able to figure out that Eric Zylman probably was the Government informant * * *."

4. Defense counsel presented the Court with information that Zylman had previously been arrested for possession of some 450 pounds of marijuana, and that he had not yet been tried. The court so advised the jury.

5. At the close of defendants\' evidence defense counsel was told that Zylman would be called by the Government in rebuttal, and, after the noon recess, a period of one and one-half hours, Zylman was called. Defense counsel made no motion for a continuance. Nor did defense counsel move for a continuance when he began to cross-examine Zylman. When defense counsel was told the name of the informant, he did not move for a continuance, but simply said: "It\'s a little late for that disclosure and the disclosure is relatively incomplete at this point."

6. During the closing argument defense counsel stated that "They surprised us and brought him in to testify—I was surprised they brought him in to some extent, but I wasn\'t surprised at his testimony." (emphasis added).

7. Roell and Zylman were friends, and Zylman visited Roell after Roell had been arrested. At that time Roell did not know that Zylman was the informant.

Under these circumstances Roell and Manning were not prejudiced by the failure to disclose the identity of Zylman, or the Government's calling Zylman as a rebuttal witness.

II. Restriction on Examination, Cross-examination, and Closing Argument.

Roell and Manning claim that they were unfairly restricted in the examination and cross-examination of witnesses, and in closing argument. We have examined the record carefully and have found no abuse of discretion on the part of the trial judge with respect to the examinations, and have found no prejudicial error with respect to his rulings on the closing argument. See United States v. Crawford, 438 F.2d 441, 444 (8th Cir. 1971); United States v. Leach, 429 F.2d 956, 964 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

a. Failure to allow cross-examination to determine whether Manning was arrested to force Roell to become an informant.

Roell was arrested on November 10, 1972, and Manning was arrested on November 21, 1972. Roell claims that had he been able to pursue Agent McDowell and Agent O'Connor as to their subjective reasons for arresting Manning, he would have been able to show that Manning was arrested in order to pressure Roell into becoming an informant, thus buttressing the entrapment defense.

First, although counsel was generally restricted from asking the agents why they arrested Manning, at least once, counsel asked:

Q. You didn\'t arrest Miss Manning because she committed any offense that you knew of, did you?

A. That\'s untrue.

The question and answer were not objected to, nor was the answer stricken. Thus, to some extent, counsel was able to pursue the subject.

Second, the inquiry was not shown to be relevant to the entrapment defense. Manning was arrested after Roell committed the illegal act, and, after Roell was arrested. It is obvious that evidence pertaining to entrapment must, in order to be relevant, bear on the defendant's state of mind at the time he committed the illegal act. As Chief Judge Coffin, of the United States Court of Appeals for the First Circuit, has said, in a similar case:

The remaining contention of the appellant, concerning the district court\'s exclusion of testimony offered by appellant to prove the defense of entrapment, does not merit full discussion. The conversations sought to be presented occurred after Frost\'s arrest. The requisite elements of entrapment must necessarily precede the criminal acts. We cannot comprehend what form of alchemy the appellant intended to employ to transmute post facto conversations into pre facto entrapment. The district court did not err in declining appellant\'s invitation to view this experiment. United States v. Frost, 431 F.2d 1249, 1251 (1st Cir. 1970), cert. denied. 401 U.S. 916, 91 S.Ct. 896, 27 L.Ed.2d 817 (1971).

Furthermore, counsel contended that Zylman was responsible for the entrapment, not the agents. Hence, it is difficult to understand what relevancy the agents' subjective reasons for arresting Manning could have had.

With regard to Manning, who did not claim entrapment, but rather lack of knowledge with respect to the identity of the substance she transferred, the subjective reasons for her arrest were properly found to be irrelevant. Whether she knew the substance was cocaine on September 22, 1972, could not in any way be proven or disproven by the Government agents' state of mind on November 21, 1972, when they arrested her. Whether the agents believed that she was guilty was, of course, totally irrelevant and a question for the jury.

b. Failure to allow examination of Johnson with respect to statements made to him by Agent O\'Connor before and after Roell\'s arrest, and regarding the fact that Johnson refused to sell

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