United States v. Thompson

• Decision Date: 12 March 1974
• Docket Number: No. 73-1847,73-1018.,73-1847
• Citation: 493 F.2d 305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl THOMPSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven TERESI, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 305 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Carl THOMPSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven TERESI, Jr., Defendant-Appellant.

Nos. 73-1847, 73-1018.

United States Court of Appeals, Ninth Circuit.

March 12, 1974.

COPYRIGHT MATERIAL OMITTED

T. Roger Duncan, of Hollywood, Cal., for defendants-appellants.

William D. Keller, U. S. Atty., Eric A. Nobles, and Irving Prager, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before ELY and TRASK, Circuit Judges, and JAMESON,^* District Judge.

TRASK, Circuit Judge:

Following a jury trial, appellants Teresi and Thompson were convicted of violating 21 U.S.C. § 176a, which made unlawful conspiring to import marijuana into the United States.¹ After examining each allegation of error asserted by appellants, we find that the proceedings below were free from any prejudicial error and affirm both convictions.²

Appellants were indicted with three other individuals on July 14, 1971, for conspiring to smuggle marijuana during the years 1969-1971. As demonstrated at the trial, however, the actual duration of the conspiracy extended from November 1969 to February 1970.

Prior to the trial, one defendant, Moore, pleaded guilty and became a Government witness. In addition to Moore, several coconspirators who had not been indicted testified that in 1969 Thompson had instructed them to engage boats which could be employed in smuggling marijuana; that in January 1970, Thompson, Moore, and Teresi went to Mexico to supervise the shipment of marijuana; and that, although the marijuana was subsequently transferred to another boat, the shipment was eventually delivered to Long Beach, California, where, on or about February 11, 1970, it was distributed by Thompson, Teresi, and Moore. In 1971, appellants were arrested and charged with conspiracy to smuggle marijuana. The marijuana in question was never seized by the Government and, accordingly, no marijuana was introduced as evidence at appellants' trial.

On appeal, both Thompson and Teresi contend that it was erroneous not to dismiss the indictment since, allegedly, portions of the grand jury proceedings were not recorded. In addition, Teresi challenges the adequacy of discovery accorded him in this case, the District Court's denial of his motion for a new trial without an evidentiary hearing, and the propriety of the instructions given to the jury.

Selective Recordation of Grand Jury Proceedings

Prior to the commencement of grand jury proceedings, appellant Thompson, through counsel, wrote to the United States Attorney and requested that all such proceedings be recorded. Relying upon United States v. Thoresen, 428 F.2d 654, 665-666 (9th Cir. 1970), both appellants argue that any failure to comply with this request "should not be tolerated" by this court. Appellants allege that there was selective recordation; specifically, that there was testimony by federal investigative agents which was not recorded. This is wholly speculative; indeed, the Government answers that the "testimony of every witness who appeared before the Grand Jury in this case was recorded."³ Even if one assumes the presence of selective recordation, however, the appellants have failed to demonstrate the "clear indication" of prejudice that Thoresen requires before an indictment may be dismissed for failure to record grand jury proceedings. Thoresen, supra at 666; accord, United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973). Appellants speculate that a Government agent testified before the grand jury. Even if this were true, no such agent testified at the appellants' trial. In this regard, it is instructive to contrast this case with Lenske v. United States, 383 F.2d 20 (9th Cir. 1967), in which selective recordation, similar to that alleged here, was severely criticized. 383 F.2d at 24-25 (dictum). The prejudice in Lenske was clear: The agent who had testified at the grand jury proceedings did, in fact, later testify at the defendant's trial; the lack of recorded grand jury testimony precluded effective cross-examination. Id. In the present case defendants' counsel acknowledged at oral argument that copies of the transcripts of all trial witnesses who had testified before the grand jury were submitted to the trial court and to defense counsel a day or so before trial. They were therefore available to the defense for examination while the witnesses were available for cross-examination. Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

Appellants also seek to establish prejudice attributable to alleged nonrecordation by conjecturing that the grand jury was presented hearsay testimony prior to the return of its indictment. It is true that in United States v. Arcuri, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Gramolini, 301 F.Supp. 39 (D. R.I.1969), the deliberate use of hearsay before the grand jury, when direct testimony was available, was criticized and recognized as a possible basis for dismissal of the indictment. 405 F.2d at 693-694; 301 F.Supp. at 42-43. In this case, however, there has been no showing that hearsay testimony was so used; indeed, the Government notes that several participants in the conspiracy testified before the grand jury. Nonetheless, this circuit has not yet so limited Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), wherein an indictment issued by a grand jury before which only hearsay testimony was elicited was held sufficient. See United States v. Fox, 425 F.2d 996, 1001 (9th Cir. 1970). Thus, even if hearsay testimony was presented before this grand jury, in order for an indictment procured partially by incompetent evidence to be dismissed on appeal, Fox requires a showing that the trial court abused its discretion in failing to do so. Id. Given the presence here of substantial direct evidence before the grand jury, such a showing has not been made.

Appellants further contend that partial nonrecordation in this case resulted in prejudice since, at their trial, they were "confronted with testimony from witnesses who did not testify before the grand jury." On the contrary, there is no requirement that all witnesses who testify at a trial must previously testify before the grand jury which indicts the defendant. United States v. Nasse, 432 F.2d 1293, 1305 (7th Cir. 1970), cert. denied, 401 U.S. 938, 91 S. Ct. 927, 28 L.Ed.2d 217 (1971).

Adequacy of Discovery

Since there had been no seizure of marijuana in this case, there were no scientific tests on the substance that could be discovered by appellant Teresi. Furthermore, as will be discussed infra, the presence of marijuana was not material to this prosecution for conspiracy to smuggle marijuana. Hence, Teresi's request to discover the results of any tests made on the substance did not satisfy the "relevancy" requirement of Fed.R. Crim.P. 16(a) or the "materiality" requirement of Fed.R.Crim.P. 16(b).

The denial of appellants' pretrial motion for disclosure of grand jury testimony was proper since there was no demonstration of any "particularized need" to examine the testimony at that time.⁴ Dennis v. United States, 384 U. S. 855, 872-873, 86 S.Ct. 1840, 16 L.Ed. 2d 973 (1966); United States v. Parker, 469 F.2d 884, 888-889 (10th Cir. 1972); United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972). Counsel for appellants were provided copies of relevant testimony before the grand jury during the course of the trial and in time to facilitate effective cross-examination. Absent any express need for earlier disclosure, this was all that was necessary. Dennis, supra at 875, 86 S.Ct. at 1840.

The District Court's denial of Teresi's motion for a witness list was not erroneous; in a noncapital case such as this, there is no entitlement to such a list prior to trial. United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969). Appellant Teresi further objects to the "concealment" of certain Government witnesses during pretrial proceedings. The seclusion of such witnesses, however, was consistent with the lack of any requirement to disclose the identities of Government witnesses prior to trial. United States v. Glass, supra. Such a procedure is also properly authorized by Fed.R.Crim.P. 16(d), (e).

Teresi alleges that it was erroneous to deny him the opportunity, upon cross-examination of "the government witnesses," to discover the current addresses of these witnesses. The appellee answers that such an objection was made during the trial, but was made with regard to only one witness. Indeed, this is consistent with the relevant motion filed by Teresi below. C.T. at 155. The appellee further represents that this information was provided to the appellant.⁵ Assuming that the information was not so provided, however, the foreclosure of this inquiry on cross-examination, although erroneous, Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), was harmless. In Smith, the "only real question at the trial" was the relative credibility of the defendant and the prosecution witness whose address was not disclosed. Smith, supra at 130. Here, in addition to the witness whose address was sought, eight accomplices testified as Government witnesses at Teresi's trial.

Denial of Teresi's Motion for a New Trial

The decision whether or not to conduct an evidentiary hearing to consider a motion for a new trial is a matter of discretion. United States v. Clay, 476 F.2d 1211, 1216 (9th Cir. 1973). Moreover, for a new trial motion to be granted, the movant must show that the newly discovered evidence is not merely cumulative and would "probably produce an acquittal." Id. at 1215. Teresi's "newly discovered evidence" was a possibility that two witnesses, in exchange for their testimony, had been promised a...