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United States v. Wables

decided: April 9, 1984.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TONY WILLIAM WABLES, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 82 CR 30065 -- James E. Doyle, Judge.

Cummings, Chief Judge, Eschbach and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

This is an appeal from the defendant's convictions for conspiracy to possess marijuana with intent to distribute and for possession of marijuana with intent to distribute. For the reasons set forth below, we affirm the convictions.

The facts in this case were presented at trial solely through the testimony of government witnesses.*fn1 A summary of this testimony follows. In the early morning of April 29, 1981, Vernon Michels, James Lee Klinefelter, and Don Lipscomb arrived in Springfield, Illinois, with a load of six bales of marijuana. They contacted Richard Leinen, a friend of Klinefelter, and asked him to find a place in which to store the marijuana for a few days while they attempted to find buyers. Leinen, in turn, relayed the request to the defendant, who took Michels, Klinefelter, and Lipscomb to a garage on Cornell Street ("Cornell garage") that was attached to the residence of Dennis Hanger and George Taylor. The defendant previously had spoken with Hanger and had arranged for the use of the garage as a storage facility for the marijuana. Failing in their attempts to sell the marijuana, Michels, Klinefelter, and Lipscomb transported the marijuana to Carbondale, Illinois, on May 2, 1981. Before leaving, however, they obtained assurances from the defendant that they could use the Cornell garage in the future for storing marijuana.

About a month later, on June 1, Michels returned to Springfield with James McGowen and Daniel Richardson. Michels, McGowen, and Richardson brought approximately 2500 pounds of marijuana, which they stored in the Cornell garage at the direction of the defendant. During the month of June, the defendant obtained 609.8 pounds of the marijuana on consignment. When Richardson moved the marijuana to a farmhouse in Edinburg, Illinois, during the second week in July, he left a small amount of marijuana at the Cornell garage for the defendant to purchase. While the marijuana was in Edinburg, the defendant procured 150.1 pounds of marijuana from Richardson. During the first or second week of August, Richardson transferred the marijuana from Edinburg to a farmhouse near Andrew, Illinois. Between that time and August 24, 1981, the defendant obtained 198 pounds of marijuana from the Andrew farmhouse.

On September 1, 1981, agents of the Drug Enforcement Administration ("DEA") executed a search warrant at the Andrew farmhouse, arrested Richardson, and seized approximately 1000 pounds of marijuana. In addition, the DEA agents seized notebooks and records that reflected that, between June 2, 1981, and August 31, 1981, the defendant had acquired 972.9 pounds of marijuana and had paid $143,005 to Richardson and to others.

A federal grand jury returned a fourteen-count indictment on August 23, 1982, charging the defendant with one count of conspiracy to possess with intent to distribute over a thousand pounds of marijuana, and with thirteen counts of possession of marijuana with intent to distribute. During a pretrial conference on October 25, 1982, the prosecutor informed the trial court that the government had supplied all discovery materials to the defendant, including pretrial statements of prosecution witnesses, which must be produced prior to the cross-examination of the witnesses, pursuant to the Jencks Act, 18 U.S.C. ยง 3500 (1982).*fn2 The defense counsel, however, stated that he had not received any Jencks Act material relating to Richard Leinen, a possible government witness. The prosecutor replied that the government did not have any such material because Leinen neither testified before the grand jury nor gave any statements to government agents.

On the second day of the defendant's trial, Richard Leinen testified for the prosecution. During cross-examination, Leinen indicated that he had been interviewed by a number of federal agents prior to trial and that the agents took notes as they were talking to him. The defense counsel then approached the bench and moved for production of these notes, stating that he was entitled to them under the Jencks Act. The prosecutor replied that such production was not required because Leinen never reviewed the notes. The court reserved ruling on the matter, on the condition that the witness remain available. After the defense counsel completed his cross-examination and the court excused the jury for lunch, a bench conference took place, during which the prosecutor expressed the position that the Jencks Act requires production of a government agent's handwritten notes only if the witness has reviewed them and has adopted them. Nonetheless, the prosecutor offered to produce voluntarily the notes regarding Leinen's pretrial interview. The court, on the other hand, interpreted the Jencks Act to require production of any notes that are a substantially verbatim recital of the witness's oral statement. The defense counsel agreed with the court's interpretation and voiced his concern that the government may not have produced notes regarding the pretrial interviews of other government witnesses. The court requested the prosecutor to inquire as to whether any law enforcement agents had taken substantially verbatim notes during their interviews with all the witnesses. Later that afternoon, the government modified its view of the Jencks Act and conceded that it had "at least a minimal obligation to produce [the agents '] notes for examination of at least the Court." Trial Tr. at 365.

On the following morning, the prosecutor presented to the court and to the defense counsel documents of supplemental discovery, which consisted primarily of notes that law enforcement agents took while interviewing government witnesses.*fn3 The defense counsel moved to strike the testimony of the three witnesses who had already testified, Klinefelter, Michels, and Leinen. The trial court denied the motion, holding that when a court is faced with the untimely production of pretrial statements, it is not limited under the Jencks Act to either striking testimony or declaring a mistrial. The court ruled that it had discretion "to turn to other alternatives," Trial Tr. at 437, and it decided to provide the defendant with the maximum opportunity to make use of the supplementary discovery materials with respect to the witnesses who had already testified.*fn4 The court called a recess of approximately three hours to give the defense counsel time to examine the supplementary discovery documents, and it indicated that it would allow the defense counsel to recross-examine any witness. After the recess, the defense counsel recalled Michels, Klinefelter, and Leinen to the witness stand and engaged in further cross-examination in the presence of the jury.

After the presentation of all the evidence and prior to closing arguments, the prosecutor expressed his concern that the defense counsel would argue, as a defense to the conspiracy count, that the defendant was merely a purchaser of marijuana. During the ensuing bench conference, the court extensively questioned the defense attorney about his theory of defense. The court explained, in considerable detail, the law of conspiracy, and it defined the scope of the conspiracy with which the defendant was charged in Count 1 of the indictment. The court concluded the discussion by stating that it would not interrupt the defense counsel's closing argument, but that it would take appropriate action afterward if it found that the defense counsel had misstated the law of conspiracy or had mischaracterized the scope of the conspiracy count. Closing arguments then took place, and the court did not deem it necessary to take any corrective action.

The jury found the defendant guilty of the conspiracy count and guilty of eight counts of possession.*fn5 Approximately one month later, on December 8, 1982, the government filed a motion for leave to file supplemental notes and memoranda relating to pretrial interviews of two government witnesses, Michels and Richardson. The court granted the motion and, after examining the notes and memoranda, the court ruled that some part of the memoradum pertaining to Michels constituted Jencks Act statements. It held, however, that the government's failure to produce this material during trial was harmless error.

In appealing his convictions, the defendant raises four issues for review. First, the defendant claims that the trial court erred both in refusing to strike prosecution testimony as a consequence of the untimely production of Jencks Act material during trial and in finding the post-trial production of Jencks Act material to be harmless error. Second, the defense argues that the records seized by DEA agents at the Andrew farm were untrustworthy and that their admission into evidence was error. Third, the defendant contends that the trial court improperly restricted his closing argument. Fourth, the defendant claims that the trial court erred in ...


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