Federal Circuits, 6th Cir. (March 16, 1988)
Docket number: 87-3084
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U.S. Supreme Court - Geders v. United States, 425 U.S. 80 (1976)
U.S. Supreme Court - Rosenberg v. United States, 360 U.S. 367 (1959)
Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and JOINER, Senior District Judge*.
PER CURIAM.Defendant-appellant Robert Joseph Blay (defendant) appeals his jury convictions on one count of distribution of controlled substances in violation of 21 U.S.C. Sec . 841(a)(1), and one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. Sec . 846. The defendant was sentenced to a total of ten years imprisonment. For the reasons that follow, we affirm.I.Defendant was indicted, along with thirty-one others, in a ninety-four count indictment returned on July 28, 1986. Defendant and his codefendants were either members or associates of the Avengers Motorcycle Club, a club which operated primarily in Michigan and Ohio. The indictment alleged that the defendants had used their association with the club to obtain access to controlled substances for purposes of distribution.The trial in this case was held from October 6, 1986, through October 21, 1986. Defendant was tried with three others while the remaining indicted defendants' cases were disposed of prior to trial.Proof of defendant's involvement in drug-related activities came mainly from two sources. First, telephone conversations recorded as a result of a court-ordered wiretap (the validity of which is not challenged here) implicated the defendant as a drug trafficker. Second, former club members testified against defendant, stating generally that defendant was a well-established source of controlled substances, including, although not limited to, cocaine, marijuana, and lysengic acid diethylamide (LSD).Ron Haddox, a former club member, testified against defendant. Haddox was a protected witness who had secretly been working for the FBI for several years. Haddox testified over the course of two days, and at several times during his testimony, he asserted that he had seen defendant distribute illegal substances.Former club member Sam Stites also testified against defendant. Stites testified that defendant was an Avengers Club officer (national vice-president), that he had seen defendant distribute narcotics, and that on at least three occasions he had collaborated with defendant in the delivery of controlled substances from the Avengers' clubhouse in Pontiac, Michigan, to the clubhouse in Columbus, Ohio. Each of these deliveries was characterized by Stites by the fact that defendant was the source of the narcotics, the drugs were taken to club member Gary Jonas in Columbus, Ohio, and the exchange of narcotics and money occurred in the basement of the Columbus clubhouse.Prior to cross-examining either Haddox or Stites, defendant's trial counsel, James Howarth, requested a recess to further prepare his examination. As to Stites, Howarth asserted a recess was necessary to review the transcript of Haddox's testimony before the grand jury. The transcript had been provided to defense counsel prior to Stites' taking the stand under Federal Rule of Criminal Procedure 26.2 ("the Jencks Act").1 During the colloquy between the district judge and Howarth, the judge suggested that if defendant's counsel wished, he could wait and study the grand jury testimony, and then cross-examine Stites after counsel for the other defendants. Howarth, however, felt it was "necessary strategically" for him to cross-examine Stites first. J.A. at 252. On inquiry from the district judge, the government prosecutor stated that Stites' grand jury testimony was not very long and could be read in less than ten minutes. As a result, the request for a recess to review the testimony was denied. Nonetheless, a review of the record reveals that during cross-examination, other defense counsel did question Stites as to specific statements made during his grand jury testimony, attempting to thereby impeach Stites.2 Defendant argues on appeal that the denial of counsel's request for a recess was error, leaving counsel unprepared to effectively cross-examine Stites.As to Haddox, Howarth's request for a recess to prepare cross-examination appears to be based on other grounds:MR. HOWARTH: Your Honor, I have a problem. A small problem is of course we got the Jencks Act material yesterday, it is very voluminous, but that is a small problem in preparing cross-examination. The big problem is this: I would like to cross-examine first, but that's not essential to the problem. The Court has ruled that should any counsel go over a matter following counsel on cross-examination will not be allowed to cover the same areas once they have been covered--once questions have been asked and answers given.THE COURT: That is correct.MR. HOWARTH: I have no problem with that, Your Honor. Last night, about 10:00 p.m., I came into possession of a large volume of materials regarding this witness, not written materials, oral materials. They are tremendously important to cross-examination. I was given names, I was given addresses, telephone numbers of people who know a tremendous amount about this witness, about his background, and the indication, I am indicating to the Court upon information and belief that a substantial part of his testimony on direct is incorrect, either mistaken or lies. Your Honor, I have had no opportunity--I was up until midnight last night on this.THE COURT: Mr. Howarth, I will make it very clear. You have known about this witness for a long time.MR. HOWARTH: Since Monday, Your Honor.THE COURT: This is Wednesday. I don't see any reason why this matter should be delayed. If you are in a position to cross-examine him, fine. I don't know the details of this information you have come into contact with. Whether this man is telling the truth or not, you would know from contacting your clients. A third party isn't going to be able to tell, so far as I can see, in a significant fashion, the basis of your cross-examination. The jury will believe him or not believe him, I do expect the cross-examination to go forward. If you want somebody else to do it, somebody else may do it. Now, a statement of yours, I can deal with. If you have something specific, direct, that I can deal with, I will hear you, but I would say to you that I have heard this same statement made times without number by defense counsel, and I am just not willing to pay any attention to it.MR. HOWARTH: Will Your Honor allow me to make a presentation to the Court in camera, naming the party who spoke to me, naming the information in particular that was given to me, naming the names of people, addresses, telephone numbers? It is a volume of material, and as I say, I came into it at 10:00.THE COURT: You see, Mr. Howarth, that is consistent, it always happens. Everybody comes into possession of material about ten minutes before the cross-examination, and the Court is now asked to do something about it and I won't. You go forward or somebody else goes forward, I am going to follow our ordinary procedure. Now, let's go to it.J.A. at 131-33. The motion for a recess was denied, and defense counsel proceeded to cross-examine the witness. Defendant now argues that this denial was an abuse of discretion.Kenneth Colby, a police officer, also testified for the government. Colby participated in the execution of a search warrant on the residence of an Avengers Club officer. During the search, the minutes of the Avengers Motorcycle Club's December 3, 1983, National Officers' Meeting were seized. The minutes listed the national officers for the club on that date, contained records on votes taken at the meeting regarding the use of controlled substances, and also noted that each Avengers' clubhouse should keep a "donation jar for imprisoned brothers."Howarth objected to Colby's reading from the minutes prior to their being admitted into evidence but the district judge overruled this objection. However, the judge sustained the objection with respect to the reference to imprisoned brothers and instructed the jury to disregard the remark. The judge reasoned that the reference merely created "the notion in the minds of the jury that these are a bunch of thugs and convicts ..." and tended to create "guilt by association." J.A. at 98. When these minutes were eventually admitted into evidence as Government's Exhibit 3-1, the language referring to imprisoned brothers was excluded. Defendant now asserts that the passing reference to imprisoned brothers requires reversal.Defendant testified in his own behalf, as did his wife, Margaret Blay. During the course of the government's cross-examination of defendant, he was asked whether he had attended a New Year's Eve party at the Avengers' Columbus clubhouse. He stated he had, and the government then asked whether the defendant had sought to purchase marijuana for his wife:Q. Isn't it a fact, Mr. Blay, that during that party and afterwards the following day, you were attempting to contact Mike Morris, another club member, in order to obtain marijuana for your wife Marge?A. Not that I remember.Q. You deny doing that?A. Yes.J.A. at 314-15.When Mrs. Blay was cross-examined, she was also questioned about her and her husband's activities during the New Year's Eve party:Q. Were you present in the club house at the New Year's Eve party this last year?A. Yes.Q. At that time did you attempt to locate Mr. Morris in order to obtain marijuana?A. No.Q. Did your husband attempt to get that marijuana on your behalf?A. To my knowledge, no.In rebuttal, the government called Mike Morris and questioned him about whether he had provided defendant's wife with marijuana at defendant's request. Morris responded in the affirmative, stating he had done so on more than one occasion.II.A.Defendant first argues that it was reversible error for the district court to deny counsel's recess request to develop the cross-examination of Haddox in that the denial left defendant incapable of effectively exercising his Sixth Amendment right "to be confronted with the witnesses against him."Try vLex for FREE for 3 days
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