United States v. Walden

• Decision Date: 06 November 1978
• Docket Number: Crim. No. 77-127-1.
• Citation: 465 F. Supp. 255
• Parties: UNITED STATES of America v. Vernon Earl WALDEN.
• Court: U.S. District Court — Eastern District of Pennsylvania

465 F. Supp. 255

UNITED STATES of America v. Vernon Earl WALDEN.

Crim. No. 77-127-1.

United States District Court, E. D. Pennsylvania.

November 6, 1978.

Thomas Colas Carroll, Carroll, Creamer, Carroll & Duffy, Philadelphia, Pa., for appellant.

Robert N. deLuca, Walter S. Batty, Jr., Edward S. G. Dennis, Asst. U. S. Attys., Philadelphia, Pa., for appellee.

MEMORANDUM

HANNUM, District Judge.

Defendant was convicted by a jury on June 24, 1977, of having conspired with four codefendants to distribute heroin and to possess heroin with intent to distribute. On July 22, 1977, defendant was sentenced to fifteen (15) years imprisonment and a life-time special parole term. An appeal followed and the case is presently before this Court on remand from the Third Circuit Court of Appeals. United States v. Walden, 578 F.2d 966 (3d Cir. 1978). The format for this Memorandum is sourced from the opinion of Wyzanski, J., in United States v. Campbell, 199 F.Supp. 905 (D.Mass.1961).

The case was remanded for two purposes. First, this Court is to supplement the record with a statement of reasons for denying a further continuance as requested by defendant in his motions of June 13 and 14, 1977. Second, this Court is to examine the handwritten notes and draft reports of Drug Enforcement Administration (D.E.A.) Agent Wallace B. Mitchell and make findings on whether these constitute "statements" within the meaning of the Jencks Act, 18 U.S.C. § 3500 (1970), and if so, whether the failure to order their disclosure to defense counsel at trial was harmless error.

I. PROCEEDINGS ON REMAND

Anticipating the directions contained in the formal Court of Appeals Mandate which was filed July 10, 1978, the Court directed the Assistant United States Attorney to produce the handwritten notes and draft reports in question. By letter of July 6, 1978, however, the Court was informed that neither the Assistant United States Attorney nor the agents of D.E.A. were able to locate the handwritten materials. In light of this development, the Court, after a conference with counsel, scheduled a hearing for July 28, 1978, at 10:00 A.M. On July 26, 1978, the Court received a letter from Harry R. Seay, Esquire, requesting that the hearing be continued until the week of August 14 due to a recent family tragedy. N.T.-1 at 31, 32.¹ The rescheduled hearing was conducted on August 16, 1978 and the notes of testimony are transmitted herewith.

Based on the testimony of defendant adduced at the August 16, 1978 hearing, the government requested a second hearing by letter of August 22, 1978 to which the Court assented by scheduling a second hearing on September 18, 1978. Notes of testimony from the second hearing are also transmitted with this Memorandum.

II. DENIAL OF THE CONTINUANCE

A. Facts

1. Since Harry R. Seay, Esquire, represented three defendants in the case, N.T. at 11, the Court conducted a conflict of interest hearing on June 6, 1977.² At the hearing, it became apparent that Walden in fact was concerned about Mr. Seay's representing him along with other defendants and he so stated in open court:

"A. I do not wish to be represented by any attorney that is defending any defendant that is involved in this case, Your Honor.

Q. So you are stating, then, that you do not want Mr. Seay now?

A. Since Mr. Seay is representing Mr. Ford and Mr. Hines—no, sir. I have no desire for his services at this time." N.T. at 19.

2. Immediately following the conflict of interest hearing on June 6, a conference was held in chambers during which Harold Randolph, Esquire, was contacted concerning his availability to represent Walden. N.T.-2 at 7, 8, 30, 31. At the conference, it was decided that Mr. Randolph was to assume the defense of Walden and that trial was to commence within one week. N.T.-2 at 30, 31. After the conference, the matter was explained to Walden by Mr. Seay and defendant expressed no objection to his being represented by Mr. Randolph.³ N.T.-2 at 10, 35, 36.

3. On June 7, 1977, Mr. Randolph informed the Court by telephone that a conflict in his schedule could interfere with his representation of Walden. N.T.-2 at 45, 46. The conflict concerned a multi-defendant criminal case that was to be tried before Honorable John Gerry of the United States District Court for the District of New Jersey on June 13, 1977. N.T.-2 at 46.⁴

4. Efforts to obtain counsel to replace Mr. Randolph in the New Jersey case were successful, however, and by the afternoon of June 9, 1977, it was clear to all concerned that Mr. Randolph was to proceed in the Walden matter on June 13, 1977. N.T.-2 at 41-42, 46-47.

B. Analysis

The foregoing reflects the factual background that existed when the Court denied the June 14 motion for a further continuance.⁵ When viewed against this background, the Court believes that the denial of a further continuance was fair and within its discretion.

We were faced with a large trial which required coordination of the presence of several defendants, numerous counsel and many witnesses. When this factor, combined with the week's delay which had already resulted from the substitution of counsel, was balanced against the time Mr. Randolph had available for preparation, it was, and is, the Court's view that further delay was unwarranted. Mr. Randolph had well over a week to review the case (June 6-June 14) or at a minimum six days (June 9-June 14). The Court was also aware that most of the groundwork had already been done by Mr. Seay. It is clear from Mr. Randolph's testimony that he had adequate time to review the file and prepare by June 13 and that he did so.

"A. I didn't only discuss the matter with Mr. Seay. I discussed the matter with Mr. Johnson and Mr. Mozenter. I went over everything but talking to Mr. Walden, whose position I clearly understood." N.T.-2 at 58, (emphasis added).

Further, it does not appear that an assertion of the attorney-client privilege by Mr. Seay interdicted Mr. Randolph's preparation. Mr. Randolph was allowed access to Mr. Seay's file insofar as it related to Walden, N.T.-2 at 66, and in any event, Mr. Randolph considered the other evidence in the file as unrelated to his client. N.T.-2 at 37. Additionally, Mr. Randolph had access to the complete government file and this too was used to prepare. N.T.-2 at 49. Finally, concerning independent investigation of alleged harassment of Walden by D.E.A. Agents,⁶ Mr. Randolph admits:

"Now, as you well know, much of this is by virtue of informants and acts of agents which I could not have obtained even by the broadest rules of discovery, but Mr. Walden having told me these matters I thought it was my duty to check something out, some portions of them out, because Mitchell, the main agent in here, had nothing to do with Walden as I could find out, even from the tapes." N.T.-2 at 57.

As to the availability of defense witnesses, initially it is noted that Mr. Randolph had between six and nine days to locate them. Additionally, the Court was aware that this was to be a lengthy trial and we anticipated that it would be at least another week before the defense was to produce evidence, and counsel informed the Court that the witnesses could be located within a week. N.T. at 28.⁷ It was thus, in the Court's view, apparent that sufficient time was allowed.

Although the issue of defendant's purported dissatisfaction with counsel was not before this Court prior to the remand, we believe it deserves comment. While defendant did not actively participate in obtaining substitute counsel, there was no basis, on the record or otherwise, to believe that a conflict existed between defendant Walden and Mr. Randolph. In fact, the only representation made to the Court was to the contrary. N.T. at 25. Mr. Randolph is a seasoned and capable trial lawyer whose previous association as counsel to Walden had been satisfactory. N.T.-2 at 29, 30. Defendant's request for an in camera conference came in the midst of a discussion of matters wholly unrelated to Mr. Randolph's substitution for Mr. Seay. The Court's view was that Mr. Randolph adequately presented defendant's position on the other matters and that an in camera conference with Walden was not appropriate. See N.T.-2 at 55.

Since the decision to grant a continuance in such circumstances rests in the sound discretion of the trial court, and it has been held not to be an abuse of discretion to deny a continuance even when the Court is aware of the conflict between counsel and client, United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976), the Court believes where, as here, the conflict was never brought to the Court's attention, there was no abuse in denying the motion. Further, this Court is not convinced that any disagreement existed between Walden and Mr. Randolph. It is emphasized that given the conflict between the testimony of defendant and that of Messrs. Seay and Randolph, all issues of credibility relating to the existence of a conflict between defendant and substitute counsel must be resolved against defendant.

Finally, as to the government's lack of objection to the motion for a continuance, the Court makes the following observations. The Assistant United States Attorney's statement of June 13, 1977 that: "The government does not object to that particular request . . ." was based primarily on the lack of opportunity Mr. Randolph had had to speak with his client. N.T. at 26. The government took no position on the renewed motion for a continuance made on June 14. Since the government took a neutral position on June 14 and the reason for acquiescence expressed on June 13 had been eliminated in the Court's view, by the one day continuance, the government's previous statement militated neither for nor against the motion. Having considered the other issues concerning preparation time and having resolved them against defendant, the Court denied the motion.

In summary, it was the Court's view that the replacement of Harry Seay, Esquire, with ...