Petition — Rinn v. United States

| FILED

(FEB 15 1979

aon Court, U, £3

MICHAT DANAK Ip CLERK |

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1978

~- 78-1275

BARRY RINN and ALEX SELVA, Petitioners,

vs.

THE UNITED STATES OF AMERICA

Robert W. Homan

Counsel for Petitioners

2424 W. Torrance Boulevard

Torrance, California 90501

Carl A. Capozzola

Of Counsel

Suite 1140 Union Bank Tower

21515 Hawthorne Boulevard

Torrance, California 90503

TABLE OF CONTENTS

‘ The Opinion Below . ....+.. -

SURLSGICEIOR a ie ne ee eb

Questions Presented ......-

. Constitutional Provisions

SHVOLVOG ~ 66 SS ete Se RO eRe

Statute Involved ... ++. e

Statement of the Case .....

1. Proceedings in Federal

Distsict Court (26.406 se

2. Proceedings in the United

States Court of Appeals .

Reasons for Granting the Writ .

COMME USZOR 566 ek wee eS

ADPOnGI“9n 6. 6 Gh eA ee eS ee

A - Opinion of the Court

a BOLOW 6.b6 8. we ee ee 8

B - Order of the Court Below

Denying Petition for

Rehearing « « «+ © « s « «

C - Order of Court Below

Recalling and Staying

Entry of its Mandate

for Thirty (30) Days

D - Pertinent Text of

Statute Involved ....

Page

sO WO Loa) nmu WN N

He

=)

tee)

19

27

28

CASES CITED

- Page

United States v. Bryant, 480 F. 2d

~ $65 (2nd Circuit, 1973) ....

United States v. Carrasco,

537 F. 2a 3?2 (9th Circuit, 1976

United States v. Johnson,

521 F. 2d 1318 (9th Circuit,

1975) : e ° ° . *

United States v. Onori, 535 F. 2d

938 (5th Circuit, 1976) ....

United States v. Smith, 537 F. 2d

862 (6th Circuit, 1976) ....

United States v. Turner, 528 F. 2d

143 (9th Circuit), 423 U.S. 996,

96 S. Ct. 426, cert. denied,

OO Sie Mee Oe Te ULSI S) 6 le 8

14

}. 3, 12

ae

14

13

UNITED STATES CONSTITUTION CITED

ge ae ee ee

ee I ig a lg wt 8 te

STATUTES CITED

The Jencks Act, 180 U.S.C.

a rae ae

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1978

NO.

BARRY RINN and ALEX SELVA, Petitioners,

vs.

THE UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States.

BARRY RINN and ALEX SELVA, the

petitioners herein, pray that a writ

of certiorari issue to review the

judgement of the United States Court

of Appeals for the Ninth Circuit

entered in the above-entitled case

on November 9, 1978, petition for

rehearing having been denied on

December 18, 1978, entry of the mandate

of the Circuit Court having been

recalled and stayed for a period of

thirty (30) days from January 18, 1979,

See

aie Seed! Ls al J Peaty

EOS Sat Rope EF

= aa

pending the within application for a

writ of certiorari.

OPINION BELOW

The opinion of the Court of Appeals

for the Ninth Circuit is reported at

586 F. 2d 113 (1978) and is reproduced

in Appendix A hereto. The opinion

affirmed judgements of conviction of

petitioners for violations of Title 21

U.S.C., sections 846, 841 (a) (1) and

Title 18 U.S.C., section 2. Petitioners

were tried in the United States District

Court for the Central District of

California by a jury, and there was no

opinion of that Court.

JURISDICTION

The judgement of the United States

Court of Appeals for the Ninth Circuit

affirming the trial court convictions

(Appendix A, infra.) was entered on

November 9, 1978. A petition for re-

hearing was denied on December 18, 1978.

The order of the Circuit Court denying

the petition for rehearing is printed in

Appendix B hereto. On January 18, 1979,

the Circuit Court issued its order re-

calling and staying entry of its mandate

for a period of thirty (30) days from

date of the order pending Petitioners’

application to this Court for a writ of

certiorari. Said order of the Circuit

Court recalling and staying entry of its

mandate is printed in Appendix C hereto.

_

Jurisdiction of this Court is invoked

under 28 U.S.C., Section 1254(1).

QUESTIONS PRESENTED

1. Did the court below err in holding

that defense counsel was provided with

handwritten notes of a prosecution witness

in a timely manner during trial, and in

so holding, did it further err in failing

to reach the federal question whether

such notes were "statements" within the

purview of the Jencks Act (18 U.S.C.,

Section 3500) as construed in United

States v. Carrasco, 537 F. 2d 372 (9th

Circuit, 1976) and United States v.

Johnson, 521 F. 2d 1318 (9th Circuit,

1975)? In so failing to reach the

question and in failing to hold that the

witness's handwritten notes were state-

ments required to be provided to the

defense under the Jencks Act, have the

petitioners been deprived of the benefits

and safeguards of the Act, and have they

been denied their Sixth Amendment right

under the United States Constitution to

confront witnesses against them?

2. Did the court below err in holding

that, despite the fact that three

successive government prosecutors con-

cededly had represented to defense

counsel that certain tape recordings

would not be used as evidence at trial,

the representations did not bind the

government to withhold the evidence and

use of the evidence did not constitute

government misconduct? Did the court

below further err in impliedly holding

ay

that one week's notice to defense counsel

of the government's intention to use the

recordings was adequate to allow the

defense to electronically examine the

recordings, which the government concedes

were of poor quality, and to prepare a

defense version? Did the court below

further err in holding that, despite case

law to the contrary, proper foundation

was laid and adequate precautions were

taken to render the recordings - generally

bad in quality and unintelligible in

places - admissible at trial? Were the

defendants at trial denied thereby funda-

mental due process guaranteed by the Fifth

Amendment to the United States Constitu-

tion, namely, proof beyond a reasonable

doubt based on sufficient and competent

evidence?

3. Was the trial court's refusal to

grant the defense one continuance, when

the defense had caused no previous delays,

a prejudicial abuse of discretion result-

ing in a denial of due process, especially

in light of the fact that the continuance

was requested because (1) the government

violated shortly before trial numerous

representations that certain tape

recording evidence would not be used at

trial, and defense counsel needed adequate

time to prepare a defense to such evidence,

and (2) the government at time of trial

had not complied with its stipulation for

discovery of evidence in its possession

and only furnished required information

to the defense at a time too late for

counsel to make adequate use of same, or

during actual cross-examination of the

prosecution witness.

=Sa

4. Did the trial court rule incorrectly

with regard to a defendant's inculpatory

statement made to a government investigator

and government informer by admitting the

statement, over objection of defense

counsel who had no prior knowledge of it,

despite the fact that the government's

use of the statement violated its stipula-

tion for discovery? Since use of the

inculpatory statement constituted the only

corroboration of the elements of the crime

by an eyewitness other than the informer,

was its admission into evidence prejudicial

error? Did suppression and use of the

statement constitute government misconduct?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI

"In all criminal prosecutions, the

accused shall enjoy the right. . . to be

confronted with the witnesses against him

Amendment V

"No person shall .. . be deprived of

life, liberty, or property, without due

process Of law. « ..”"

STATUTE INVOLVED

The statute involved is»sthe Jencks Act,

codified at 18 U.S.C., Section 3500. The

relevant provisions are found in subsections

(b), (dad), and (e). Because these pro-

visions are lengthy, their pertinent text

is set forth in Appendix D hereto.

as

-6-

STATEMENT OF THE CASE

1. Proceedings in United States District

Court.

On October 6, 1976, Barry Rinn and Alex

Selva, petitioners herein, were arrested

by agents of the United States Department

of Drug Enforcement Administration and by

agents of the Downey Police Narcotics

Division, and were subsequently indicted

for violations of 21 U.S.C. Section 846,

21 U.S.C. Section 841(a) (1), and 18 U.S.C.

Section 2 in a seven count indictment in

the United States District Court for the

Central District of California.

On July 26, 1977, after two prior

continuances, neither of which were the

result of defense requests, a pretrial

hearing was held, the Honorable Laughlin

E. Waters, Judge of the United States

District Court for the Central District

of California presiding. At this hearing,

defense counsel addressed himself to tape

recordings made by a government investi-

gator of alleged conversations between

the defendant Rinn and an informant.

Notwithstanding the fact that defense

counsel were repeatedly promised by three

different government prosecutors assigned

to the case that these tape recordings

would not be used at trial, the prosecu-

tion sought to renege on its representa-

tions and only shortly before trial

indicated its intent to use them.

Defense counsel urged the trial court

to rule that the tapes were inadmissible,

or in the alternative, to grant the

=Jo

defense a short continuance to enable

thorough testing of the tapes by qualified

experts. At the crux of the defense

motion was the prosecutions representa-

tions from the outset of the criminal

proceedings until one week before trial

that the tapes would not be used, and

the fact that the tape recordings were

of extremely poor quality, and unintelli-

gible in many places. The substance of

these taped conversations formed a

critical part of the prosecution's case

and thus were crucial to proving the

guilt of defendants.

The defense motion for continuance was

also based on the fact that the govern-

ment had flagrantly breached the stip-

ulation by both sides regarding informal

discovery and had failed to produce doc-

uments and information contained in the

stipulation including an accurate past

criminal record of the key government

informant, and an accounting regarding

rewards, reimbursements or promises made

to the informant, a photograph depicting

a material scene relevant to the trial,

and a defendant's inculpatory statement

in the possession of the government, the

latter two items of information only

coming to light during cross-examination

by the defense. Both the motion to

exclude tape recordings as evidence, and

the motion for a continuance were denied.

The prosecution was allowed to submit

into evidence not only the partially

unintelligible tapes, but also the

prosecution's transcripts of same, while

defense counsel was neither afforded

time to submit the tapes to electronic

=f-

scrutiny and enhancement nor to prepare

a defense version.

On July 27, 1977, jury trial commenced.

The tapes were first played for the jury

during direct examination of the govern-

ment informant, and at the same time

transcribed copies which had been pre-

pared by a government clerk from hand-

written notes of the government investi-

gator, were supplied. After the govern-

ment investigator had testified with

respect to the tapes and his handwritten

transcription, the defense requested

that all these notes be supplied, and

the trial court ordered the prosecution

to furnish the notes to the defense. It

is evident from the transcript that the

defense was not furnished the notes until

the case was concluded and the jury

deliberations had begun. The government

concedes in its brief on appeal to the

Circuit Court below that the notes were

not supplied, but contends that the govern-

ment had no obligation te do so under the

Jencks Act (Appendix D herein).

During the course of the trial, defense

counsel moved for a dismissal of the

indictment both orally and in a written

motion on the following grounds:

(a) That the prosecution breached

its stipulation for discovery

and delayed the disclosure of

the informant's past criminal

record and rewards and promises

made to him;

-9-

(b) That information regarding

the informant's past criminal

record was incomplete and

inaccurate when it was

eventually provided to the

defense;

(c) That the prosecution reneged

on promises not to use faulty

tapes at trial;

(ad) That the prosecution intention-

ally suppressed material photo-

graphs;

(e) That the prosecution deliberately

failed to disclose a defendant's

statement as was required by

the government's own stipula-

tion.

The motion was denied.

The jury returned verdicts of guilty

against Selva on three counts and against

Rinn on four counts. Rinn was acquitted

on two counts. Sentence was imposed as

to both on September 12, 1977.

2. Proceedings in the United States

Court of Appeals.

The petitioners herein appealed their

convictions to the United States Court of

Appeals for the Ninth Circuit. The

matter was scheduled for oral argument,

and defense counsel requested 30 minutes

time in order to clarify certain portions

of the record. Both sides on appeal

stipulated to one continuance of the

-10—-

appearance for oral argument, and

thereafter the matter was taken off

calendar and the Court prepared its

opinion without having heard oral

argument.

Said opinion, which is reproduced in

Appendix A hereto, affirmed the judge-

ment of the District Court.

REASONS ADVANCED FOR

GRANTING THE WRIT

I

Contrary to assertions of both the

appellants and the appellee in their

briess, and without clear substantiation

from the record, the circuit court below

held that defense counsel was provided

with handwritten notes of a prosecution

witness sn a timely manner at trial.

In 450 holding the court erred in

faiking to reach the federal question

whether such notes were "statements"

within the purview of the Jencks Act

(18 U.S.C. Section 3500) - it being

clear that such notes ane statements

within the meaning of the act - and

petitioners have been denied thereby

the benefits and safeguards of the

act, and have been denied their Sixth

Amendment right to confront witnesses

against them.

It was strongly contended on appeal

that defense counsel was never during

trial provided with copies of a

government investigator's handwritten

notes subsequent to the testimony of the

= be

investigator regarding the notes. Counsel

for the government on appeal conceded this

point in appellee's brief, and confined

its argument to the contention that the

notes were not Jencks Act material. Thus,

both parties to the appeal agreed that

the notes were not supplied to defense

counsel in time for cross-examination,

but the parties differed as to the char-

acter of the notes in relation to the

Jencks Act. The court below, however,

apparently on the basis of that portion

of the record set out in footnote 1 of

the Opinion (Appendix A herein) concluded

that the notes were tendered to defense

counsel in a timely manner. Of interest

is the fact that the exact same colloquy

quoted in.the first part of footnote l

to the Opinion (up to and including the

words of the trial court "All right.

We can arrange that.") was cited by

appellee in its brief as standing for

the proposition that the trial court was

"suggesting" thereby that the government

make the notes available. Solely on the

basis of the record, the meaning of

which is unclear at best, and without

benefit of oral argument, the Circuit

Court below held that it need not

construe the Jencks Act in terms of the

facts of this case. If it had reached

the Jencks Act question, however, as it

clearly should have, the Court below

would have run squarely into the opinion

in United States v. Johnson, 521 F. 2d

1318 (9th Circuit, 1975) which held that

"notes and reports" of agents of the

government who testify for the govern-

ment, made in the course of a criminal

investigation, may be subject to inquiry

=} 2=

under the Jencks Act, and that the notes

are producible even where it appears

that the entire contents of the notes

are included in a document which was

turned over to the defense (i.e., in

context of the instant case, the govern-

ment clerk's mechanically produced copy

of the notes). In the instant case the

Circuit Court below would also have run

squarely into conflict with United States

v. Carrasco, 537 F. 2d 372 (9th Circuit

1976) which, following the rationale and

underlying basis of Johnson, supra,

strongly admonished the government on

the importance of the defendant's right

to receive statements akin to the notes

in the case at issue, and held that non-

production of same constituted reversible

error.

This Court should grant certiorari in

order to make certain that the procedures

followed and rulings made in the trial

court with respect to production of the

government investigator's notes did not

depart from the accepted and usual course

of judicial proceeding as annunciated by

the above-cited precedents of the Ninth

Circuit Court of Appeals.

Il

This Court Shoukd grant certiorari to

consider whether the prior representations

of three separate government prosecutors

that certain tape recording evidence would

not be used at triak neaches the Level of

an agreement or promise binding on the

government and implicates in the event

of breach, established federal doctrine

-l13-

relative to prosecutorial misconduct.

This Court should grant certiorari to

consider whether foundational require-

ments and cautionary instructions

utikhized at triak and approved on appeal

with respect to tape recording evidence

were not in congkict with federal case

Law.

The Opinion of the Court below

(Appendix A herein) dismisses the issue

of prior representations of the govern-

ment respecting its intention not to

use certain tapes as evidence by con-

cluding that such representations cannot

be deemed to reach the level of an

agreement binding, on the government.

This Court should grant certiorari to

consider the important question whether,

between professionals, and especially

between fellow practitioners in the

legal profession, such representations

should be accorded equal stature with

more formal agreements, and whether

breach should call into operation well

established sanctions, including

suppression of the evidence or dismissal

of the indictment, for government mis-

conduct in a prosecution.

The Circuit Court below held that in

light of the rationale in Turner (cited

in the Opinion, Appendix A herein) the

foundational requirements and cautionary

instructions utilized by the trial court

for admission of tape recordings were

adequate to insure the sufficiency and

reliability of the evidence. It was

contended strongly on appeal by

petitioners herein, however, that such

inh hied sil

=-14-

foundational requirements and cautionary

instructions were inadequate, and coupled

with the fact that defense counsel was

not afforded time to electronically

examine the poor quality tapes and

prepare a defense version, the tapes

should have been excluded ype hee gga

e appellants below relied on Bryan

pie smith (cited in footnote 2 to the

Opinion, Appendix A herein) as well as

on United States v. Onori, 535 F. 2d

938 (5th Circuit 1976) in support of

their assignment of error. Because of

the increasingly frequent use, especially

by prosecutors, of tape recordings as

evidence in federal and state cases,

resolution of the apparent conflicts

in the above cited cases is important,

and this Court should grant certiorari

to establish what foundational require-

ments and procedures in this area are

necessary to insure sufficiency and

reliability of this type of evidence

consistent with due process.

IIt

The Circuit Court below chearky was

in eranor in holding that refusal of

the triak court to grant one defense-

requested continuance was a proper

exercise of fjudiciak discretion when

Such continuance was sought as a

dinect result of the government

prosecutor's breach of prior repredsent-

ations regarding tape recording

evidence, and as a dinect result of

the government breach of its stipula-

tion f0r discovery.

The facts advanced by defense counsel

ot6- i

to support his motion for continuance

made at time of trial are detailed else-

where in this Petition, primarily in the

Statement of Facts. Under the facts

presented, the refusal of the trial

court to grart a short continuance,

upheld on appeal as a proper exercise

of discretion, so far departs from

the accepted and usual course of judicial

practice, and so fundamentally raises

questions of due process, that an

exercise of this Court's power of

supervision is strongly indicated.

IV

The trial court should have exckuded

a defendant's incukpatory statement made

to a government investigator and govern-

ment A4nforamer since the government

dAntentionakly withheld the statement

before triak, even though disclosure was

required by the terms of its Stipulation

for discovery.

As the record reflects, defense counsel,

by way of informal discovery, had

requested from the prosecution all state-

ments to be used at trial. Although

written reports containing certain

statements were furnished, a critical

statement by Selva was not so furnished

and was only learned of during the

trial and in front of the jury. The

statement attributed to Selva was

incrinminatory and highly prejudicial

since it became the only corroboration

of cocaine possession by the defendant

by an eyewitness other than the

informant.

-16=-

This alleged statement by Selva was

known by the prosecution far in advance

of the trial, as the record reflects,

and suppression of the statement clearly

violated the above-mentioned discovery

agreement, constituted government

misconduct, and resulted in surprise

and extreme prejudice to defendants

at trial.

This Court should grant certiorari to

review this instance of government

misconduct at trial, because of the

serious nature of this assignment of

error, and because the Circuit Court

below did not treat suppression of the

statement from the standpoint of |

intentional breach of the stipulation

for discovery and because, in failing

to hold that the statement should have

been suppressed or at least its

admission into evidence delayed pending

defense counsel's scrutiny of its

circumstances and content, the Court

below seems to be taking a position

contrary to established federal law

respecting the consequences of govern-

ment prosecutorial misconduct.

oj] 7=

CONCLUSION

For all the foregoing reasons, the

within petition for certiorari should be }

granted.

Respectfully submitted, ;

Robert W. Homan

Counsel for Petitioners

2424 W. Torrance Boulevard ;

Torrance, California 90501

Of Counsel

7 PER ES IETS

Carl A. Capozzola

Suite 1140 Union Bank Tower

21515 Hawthorne Boulevard

Torrance, California 90503

APPENDIX

—_

-19-

UNITED STATES v. RINN

Cite an BA6 F 34 113 (1978)

UNITED STATES of America,

Plaintiff-Appellee,

v.

Barry RINN and Alex Selva,

Defendants-Appellants.

No. 77-3339.

United States Court of Appeals,

Ninth Circuit.

Nov. 9, 1978.

Rehearing Denied Dec. 18, 1978.

Defendants were convicted in the Unit-

ed States District Court for the Central

District of California, Laughlin E. Waters,

J., of conspiracy, possession with intent to

distribute a controlled substance and aiding

and abetting, and they appealed. The

Court of Appeals, East, Senior District

Judge, sitting by designation, held that: (1)

trial court did not err in submitting tran-

scripts of tape recordings to jury subject to

cautionary instruction that tape recordings,

not transcripts, were controlling; (2) trial

court did not err in refusing to grant con-

tinuance requested on first day of trial; (3)

trial court did not err in permitting detec-

tive to testify concerning certain state-

ments made to him by key government

witness who was available at trial and sub-

ject to cross-examination and (4) Govern-

ment’s failure to disclose inculpatory state-

ment made in presence of government

agents did not constitute reversible error.

Affirmed.

1. Criminal Law @627.6(4)

Contention that Government's failure

to provide defendants with copies of detec-

tive’s handwritten notes used in preparing

transcript of relevant tape recordings con-

stituted violation of Jencks Act was with-

out merit where Government timely ten-

dered notes for defense inspection and use

during cross-examination of detective but

tender was not accepted and notes were not

utilized by defense. 18 U.S.C.A. § 3500(b).

2. Stipulations = 1

Pretrial verbal exchanges among coun-

sel to the effect that tape recordings would

not be used as evidence did not rise to level

of actual agreement binding on Govern-

ment, particularly since defense counsel

was informed a week before trial of

Government’s intention to introduce tapes

in evidence, defense had been in possession

of tape recordings for approximately six

months and defense counsel admitted he

realized he did not have promise from

Government not to use recordings.

3. Criminal Law > 1169.1(10)

District court did not commit reversible

error in submitting tape recordings and

Government's prepared transcripts thereof

to jury subject to instruction that tran-

scripts were to be used only as aid in fol-

lowing tapes and that tape recordings, not

transcripts, were controlling.

-20-

586 FEDERAL REPORTER, 2d SERIES

4. Criminal Law @=586, 1151

Motion for continuance directs itself to

sound discretion of trial court and appellate

court will not disturb trial court’s ruling

unless an abuse of discretion is shown.

5. Criminal Law @589(1)

Failure to grant continuance on ground

of Government's failure to provide copies of

prior criminal record of government witness

was not error where record established that

criminal record of witness was supplied by

Government and known to defense in ade-

quate time to fully and extensively cross-

examine witness on subject. Fed.Rules

Crim.Proc. rule 16(a1\C), 18 U.S.C.A.

6. Criminal Law e700

Information concerning “favor or

deals” made to key government witness

merely goes to credibility of witness and

need not be disclosed prior to witness testi-

fying.

7. Witnesses e395

Where defense counsel, to impeach

credibility of key government witness,

opened the subject of witness’ prior state-

ment to detective concerning identity of his

source of cocaine, prosecutor’s cross-exami-

nation question to detective about witness’

prior identification of his source of cocaine

was proper rehabilitation and properly al-

lowed over hearsay objection. Fed.Rules

Evid. rule 801(d)(1), 28 U.S.C.A.

8. Criminal Law @1171.1(1)

Government’s failure to disclose pre-

trial inculpatory statement made by de-

fendant in presence of two government

agents did not constitute reversible error

where defendant, at time he made state-

ment, was not under interrogation and was

unaware that other participants in conver-

sation were government agents. Fed.Rules

Crim.Proc. rule 16(aX1)A), 18 U.S.C.A.

Carl A. Capozzola, of Moore & Capozzola,

Torrance, Cal., for defendants-appellants.

Theresa A. Kristovick, Asst. U. S. Atty.,

Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District

Court for the Central District of California.

Before ANDERSON and HUG, Circuit

Judges, and EAST,* Senior District Judge.

EAST, Senior District Judge:

The defendants Rinn and Selva appeal

their respective judgments of conviction

and sentences to custody, fine and special

parole for violations of the provisions of 21

U.S.C. § 846 (conspiracy), 21 U.S.C.

§ 841(aX(1) (possession with intent to dis-

tribute a controlled substance), and 18

U.S.C. § 2 (aiding and abetting).

Rinn and Selva were jointly indicted un-

der a seven count indictment. A jury

found Rinn guilty on four counts and Selva

guilty on three counts.

We note jurisdiction and affirm.

FACTS :

The pertinent facts gleaned from the tes-

timony of the informant Larry Neuberger

are:

Neuberger met Rinn in New York during

1968. During that year, Neuberger moved

to California and began trafficking in nar-

cotics for Rinn. In 1969, he was convicted

and sentenced to California penal custody

for dangerous drug trafficking. After re-

lease in 1972, he borrowed $3,000 from Rinn

and moved to Indiana. In 1976, he re-

turned to Los Angeles where he rejoined

Rinn and agreed to again enter drug traf-

ficking for Rinn in order to clear the $3,000

indebtedness. Thereafter, on a number of

occasions, he received narcotics for sale

from Rinn and Selva. During one such

transaction late in July, 1976, he agreed to

sell cocaine to Detective John D. Abbey of

the Downey, California Police Department,

who was working in an undercover police

capacity. Neuberger obtained cocaine from

Rinn and Selva and sold two ounces thereof

*Honorable William G. East, Senior United States District Judge for the District of Oregon,

sitting by designation.

-21-

UNITED STATES v. RINN

Cite as 686 F.24 113 (1978)

to third parties and one ounce to Abbey for

$1,600. Neuberger was arrested by Abbey

late in July, 1976. Thereafter Neuberger

agreed with Abbey to cooperate in the in-

vestigation of cocaine trafficking with the

understanding that Abbey would do all he

could to help Neuberger with his pending

narcotics charge. Neuberger was released

from custody and on September 3, 1976 he

met with Rinn, at which time Neuberger

was wearing a body radio transmitter.

Neuberger and Rinn arranged for a sale of

cocaine, with the pickup through the

“stash” (the person holding the narcotics)

Selva. The radio signals from Neuberger’s

body transmitter were tape recorded by po-

lice officers. Further meetings with Rinn

for sales of cocaine were recorded on Octo-

ber 4 and 6, 1976. At the meeting on

October 6, Abbey purchased cocaine from

Rinn and Selva. Selva was subsequently

arrested

Abbey's testimony corroborated the testi-

mony of Neuberger to the extent of his

participation and established that through-

out the investigation the Drug Enforcement

Administration of the United States was

cooperating with the Downey Police De-

partment and had financed the investiga-

tion.

PRETRIAL PROCEEDINGS IN THE DIS-

TRICT COURT:

On July 26, 1977, the day scheduled for

trial, the District Court held a pretrial hear-

ing at the joint request of the Government

and the Defense with respect to the

Government’s stated intention to introduce

portions of the tape recorded conversations

between Rinn and Neuberger. The De-

fense challenged the intelligibility of the

tapes and the accuracy of the Government’s

prepared transcript thereof.

Defense ccunsef also requested a 30-day

continuance on the grounds that they had

not adequately reviewed the tapes because

they had been informed by three different

Assistant United States Attorneys who had

handled the case that the tapes would not

in fact be used at trial. The trial prosecu-

tor did not inform the Defense of the

Government's intention to utilize the tapes

until the week before trial. Further, de-

fense counsel claimed that they had

received a complete arrest record of

informant Neuberger nor any report of

promises or compensation he had recei

in exchange for his cooperation and testi-

mony.

The District Court denied the motion for

a continuance, noting that the case was a

arrest record. Additionally, the District

Court ordered that prior to the time the

informant was to testify, defendants were

to be informed of any inducements Neuber-

ger had received in exchange for his testi-

mony.

With respect to the tape recorded conver-

sations, the District Court found that the

Defense had been apprised of the Govern-

ment’s intention to introduce them at trial

by both the Government's trial memoran-

dum as well as telephonic communication

by the Government's trial prosecutor the

week prior to the commencement of the

trial. The District Court also found that

the Defense had been in possession of the

tapes for many months and had made no

effort to analyze them.

The District Court also heard testimony

from Abbey, who had conducted the surveil-

lance operation involving the defendants

and had prepared a written transcript of

the tapes. Neuberger testified that he had

listened to the tapes of the conversations in

which he had participated and believed that

the transcript accurately identified who was

speaking. He identified the conversation

attributed to him and to Rinn as accurate

and said that he believed the tapes accu-

rately reflected the conversations.

After carefully listening to the tapes,

Judge Waters ruled that adequate founda-

tion had been laid. The tape recordings

were probative and intelligible, however of-

ten with some difficulty. Although one

tape was partly unintelligible, the unintelli-

gible portions were not sufficient to defeat

its probative value as a whole. The District

Court concluded that the tapes were admis-

ee

a2 Des

586 FEDERAL REPORTER, 2d SERIES

sible and further stated that with respect to

the transcripts, a cautionary instruction

would be given to the jury as to the pri-

mary use of the tapes and that the tran-

scripts would be removed from the jury

upon completion of playing the tapes.

ISSUES ON REVIEW:

We construe the decisive issues on review

to be:

1. Whether it was reversible error for

the Government to fail to produce Abbey’s

handwritten notes used in preparing a tran-

script of the tape recordings.

2. Whether the District Court erred by

placing the transcript of the tape recordings

to the jury subject to a cautionary instruc-

tion that it was the tape recordings, not the

transcript, which were controlling.

3. Whether the District Court erred in

refusing to grant a continuance requested

on the first day of trial.

4. Whether the District Court erred in

permitting Detective Abbey to testify con-

cerning certain statements made to him by

Neuberger, who was available at trial and

subject to cross-examination by the De-

fense.

5. Whether the Government's failure to

disclose an inculpatory statement made by

Selva prior to trial constituted reversible

error.

DISCUSSION :

Issue 1:

It developed during the trial and before

final cross-examination by defense counsel

1. During the presentation of the Government's

case in chief, the following colloquy took place

with respect to the Government's obligation, if

any, to provide the defense with Abbey’s

rough, handwritten notes of the tapes:

“THE COURT: Do you see any reason why

those [handwritten notes of Abbey],

however, should not be turned over to

[defense counsel] at this point, aside

from the fact that there was a failure to

make a proper motion?

PROSECUTOR: No, your Honor, I don’t. I

have no objection to his having those

notes.

THE COURT: All right.

that Abbey initially listened to the tapes

and took rough, handwritten notes. It ap-

pears that the transcript of the tape record-

ings was prepared with the help of these

notes. The transcript was compared with a

praying of the tape recordings at the pre-

trial hearing. Rinn and Selva contend that

failure to provide them with copies of the

handwritten notes constitutes a violation of

the Jencks Act (18 U.S.C. § 850Q(b)), enti-

tling them to a reversal of their convictions.

They argue that the Government had been

ordered to hand over such notes after Ab-

bey testified and, further, that their failure

to receive such information until the end of

trial, after all testimony in the case had

been given, prejudiced their right to con-

frontation and cross-examination of Abbey

with respect to the accuracy of the tran-

script.

For the reasons later stated, we do not

reach the issue of whether the rough hand-

written notes made by Abbey upon listen-

ing to the tape recordings are “statements”

within the purview of the Jencks Act as

rationalized by United States v. Carrasco,

587 F.2d 372 (9th Cir. 1976), and United

States v. Johnson, 521 F.2d 1318 (9th Cir.

1975).

{1} It is not clear from the record

whether the Defense made proper demand

for the handwritten notes as either Jencks

Act material or Defense’s belief of exculpa-

tory material. Nevertheless it is crystal

clear that the Government timely tendered

the handwritten notes for the Defense’s

inspection and use during cross-examina-

tion.' For reasons known only to defense

PROSECUTOR: I believe that I, in fact, have

most of them in my possession here.

DEFENSE COUNSEL: Before we receive

them, your Honor, I would like to have

the officer testify that they are his full

and complete notes.

THE COURT: All right. We can arrange

that.”

Later the following was adduced through de-

fense counsel's cross. ination of Abbey:

“Q Do you have a copy of your handwritten

notes that you made at the time that you

first copies [sic] down those those

tapes?

A Yes.

@23<

UNITED STATES vy. RINN

Cite as 086 F.24 113 (1978)

counsel, the tender was not accepted nor

were the notes utilized by the Defense in

further cross-examination. The Govern-

ment could do no more. We believe no ruie

requires the Government to put Jencks Act

or exculpatory materials into defense coun-

sel’s pocket after counsel declined to make

use of what was tendered. We conclude

this issue to be without merit.

Issue 2:

It appears that during the period be-

tween the date of the return of the indict-

ment on or about October 27, 1976, and the

date of trial, July 26, 1977, a succession of

three Assistant United States Attorneys

were consecutively in charge of the prosecu-

tion. Defense counsel was supplied with

copies of the tape recordings in January of

1977. Thereafter each of the Assistant

United States Attorneys, including the trial

prosecutor, told defense counsel that the

Government would not use the tape record-

ings as evidence. Thereafter and approxi-

mately a week before trial, the trial prose-

cutor orally and in writing advised defense

counsel that it was the intention of the

Government to offer the tape recordings

into evidence. The Defense claims they had

not prepared a transcript or thoroughly re-

viewed the tapes on the basis of a “gentle-

men’s agreement” with the prosecutor that

the tapes would not be used at trial, and

furthermore, that the numerous errors in

the Government’s prepared transcript and

the inaudible nature of the tapes rendered

the transcript and tapes untrustworthy and

inadmissible.

Q Are there any other handwritten notes

O>Oo > D>

i

i

:

;

2

3

i

Of interest is the following colloquy at instruc-

tion settlement time:

[2] We are satisfied that the verbal ex-

changes among counsel to the effect that

the tape recordings would not be used as

evidence cannot be deemed to reach the

level of an actual agreement binding on the

Government, especially in light of the fact

that defense counsel was informed a week

before trial of the Government's intention

to introduce the tapes in evidence. The

Defense had been in possession of the tape

recordings for approximately six- months,

and defense counsel admitted that he real-

ized he did not have a promise from the

Government not to use the tape recordings.

(Cf. United States v. Sweet, 548 F.2d 198,

203-04 (7th Cir.), cert. denied, 430 U.S. 969,

97 S.Ct. 1653, 52 L.Ed.2d 361 (1977).)

The District Court at the pretrial confer-

ence, after listening very carefully to the

tape recordings, ruled that despite some

difficulties, it believed one could pick up

and follow what was on them, and conclud-

ed that the tape recordings were admissible.

The Court further concluded that the jury

could utilize the Government prepared tran-

script under the cautionary instruction.

The Defense correctly contends that they

never stipulated to the accuracy or admissi-

bility of the Government’s prepared tran-

script of the tape recordings. They further

submit that in light of the discrepancies,

confusion, and inaudible portions of the

tapes, the admission of the transcript was

prejudicial error.

The most recent Ninth Circuit pronounce-

ment on this issue was in United States v.

“DEFENSE COUNSEL: One last thing on

this thing. I’m not going to make any

motions at this time. It's a little late.

But I never did receive those handwritten

notes. I'd like for my own benefit to

read them. | think you asked them to

provide them to me and they were never

provided.

THE COURT: They were never provided?

DEFENSE COUNSEL: No. And the copies

of the photographs. I got them once, but

I wanted copies of those things and I

never got them either. I don’t know if

you told him to give them to me or not.”

(Emphasis added).

ey

nadrrmeenenaenesalits —

-24-

586 FEDERAL REPORTER, 2d SERIES

Turner, 528 F.2d 143 (9th Cir.), cert. denied,

423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371

(1975), wherein this Court approved the ad-

mission of typewritten transcripts to assist

the jury in following recordings while they

were being played. In Turner, this Court

stated that there could be no doubt that the

transcripts were an accurate rendition of

the contents of the tape recordings since

the District Court had methodically re-

viewed many of the tape recordings and

corresponding transcripts to ensure their

conformity; had made appropriate correc-

tions in the transcripts, including changes

requested by the defense; and had given a

cautionary instruction to the effect that

only the recordings were evidence of the

conversations and that the transcripts were

provided merely to facilitate listening. Ad-

ditionally, in Turner as in the present case,

the Court granted the juror’s request, after

deliberations had begun, to have certain of

the taped conversations replayed, following

the same procedure as before and with the

specific admonition that only the record-

ings, not the transcripts, were evidence of

the conversations.

In the instant case, the District Court

permitted the jury to consider both the tape

recordings and transcript only after a care-

ful review of the tape recordings’ intelligi-

bility and the transcript’s accuracy. Specif-

ically, the Court entertained objections by

the Defense as to any alleged errors in the

transcript, replayed challenged portions of

the tape recordings and corrected the tran-

script where it appeared that certain rele-

vant words were missing. Furthermore,

the District Court clearly instructed the

jury, immediately prior to playing the tape

recordings, that the document placed before

them was a transcription of a portion of

what appeared on the tape recordings, and

was to be used only as an aid in following

the tapes themselves. The Court noted that

sometimes the tape recordings were diffi-

cult to follow but admonished the jurors

2. The appellants rely upon United States v.

Bryant, 480 F.2d 785 (2d Cir. 1973), and United

States v. Smith, 537 F.2d 862 (6th Cir. 1976),

which appear to support their claim of error;

however, in each case the error was held to be

that if they followed carefully, with the use

of the transcript, it thought they would be

able to understand what was being said on

the tape recordings and, further, that it was

the tape recordings, not the transcript,

which were controlling.

[3] We are satisfied that in light of the

rationale in Turner, the District Court did

not commit reversible error in submitting

the tape recordings and the Government’s

prepared transcripts thereof to the jury in

the manner in which it was done. Our

position is fortified by the testimony of

Neuberger, a party to the conversations,

corroborating the identity of the parties to

and the substance of the conversations

taped. Neuberger was subjected to a most

searching cross-examination on the subject

by the Defense.

The issue is without merit.’

Issue 3:

The three grounds in support of the de-

fendants’ motion for continuance were that

the Government had failed to provide them

with (1) copies of Neuberger’s prior crimi-

nal record; (2) the enticements or promises

made to him to secure his testimony; and

(8) adequate notice that would allow them

to analyze the tape recordings and tran-

script thereof.

[4] We start with the truism that a

motion for a continuance directs itself to

the sound discretion of the trial court, and

unless an abuse of discretion can be shown,

an appellate court may not disturb the trial

court’s ruling. United States v. Harris, 501

F.2d 1 (9th Cir. 1974); United States v.

Bryan, 584 F.2d 205 (9th Cir. 1976); United

States v. Pratt, 581 F.2d 396 (9th Cir. 1976). -

{5} (1) It has been said that the Govern-

ment has no discovery obligation under Fed.

R.Crim.P. 16(aX1XC) to supply a defendant

with the criminal records of the Govern-

ment’s intended witnesses. United States

harmless. The Defense merely urges that the

etror cannot be harmless. We believe the Dis-

trict Court in this case gave the appellants

More safeguards than were given in Bryant or

Smith.

-25-

UNITED STATES v. RINN

Cite as 888 F.2d 113 (1978)

v. Taylor, 542 F.2d 1023, 1026 (8th Cir.

1976), cert. denied, 429 U.S. 1074, 97 S.Ct.

813, 50 L.Ed.2d 792 (1977). We, however,

do not reach the issue in this case because it

is manifest from the trial record before us

that the entire criminal record of Neuber-

ger was supplied by the Government and

known to the Defense in adequate time to

fully and extensively cross-examine Neu-

berger on the subject.

[6} (2) On July 26, 1977, the District

Court ordered the Government to apprise

the Defense in detail of any promises which

had been made to Neuberger in exchange

for his testimony. On July 27, 1977, in

response to the District Court's inquiry,

Government counsel stated that he had not

had time to complete the task. The District

Court instructed the Government to reduce

the agreement to writing during the noon-

time recess and to provide the defense with

an accounting. Defense counsel fully uti-

lized such accounting during the extensive

cross-examination of Abbey on the follow-

ing two days. We believe the Government

complied with the requirements set forth by

the United States Supreme Court in Giglio

v. United States, 405 U.S. 150, 92 S.Ct. 763,

81 L.Ed.2d 104 (1972), wherein it was held

that nondisclosure of a promise of lenience

to a key Government witness violated the

due process clause. However, since infor-

mation concerning “favor or deals” merely

goes to the credibility of the witness, it

need not be disclosed prior to the witness

testifying. United States v. Mitchell, 372

F.Supp. 1289, 1257 (S.D.N.Y.1978). See also

United States v. Joseph, 5883 F.2d 282, 286-

87 (5th Cir. 1976), cert. denied, 431 U.S. 905,

97 S.Ct. 1698, 52 L.Ed.2d 889 (1977); accord,

United States v. McGovern, 499 F.2d 1140

(1st Cir, 1974). ;

(3) We are satisfied for the reasons

adopted by the District Court at pretrial

conference that the ground of inadequate

notice of the Government's intention to use

the recordings and transcripts has no merit.

We conclude the District Court exercised

sound judicial discretion and did not other-

wise err in denying the motion for continu-

ance.

Issue 4:

The Defense contends that they were

prejudiced at trial by the admission of Neu-

berger’s statements regarding the identity

of his narcotics suppliers. Selva failed to

object below.

Toward the end of the trial, the District

Court made available to the defendants an

investigative report prepared by Abbey on

July 30, 1976, and upon request, Rinn’s

counsel was afforded the opportunity to

recall Abbey and Neuberger.

Abbey was called as Rinn’s witness and

the following colloquy ensued:

“Q Did you write a police report in

which you indicated that he was able

to obtain large quantities of cocaine

from people?

A Yes, I believe I did.”

Cross-examination began immediately

thereafter and Government counsel asked

the following questions which were answer-

ed over the objections of Rinn’s attorney:

“Q Detective Abbey, referring to the

references in this report to talking

to his people, did he ever tell you

who his people were?

A Yes.

Q Who did Larry Neuberger tell you

his people were?

MR. CAPOZZOLA: That asks for hear-

say, your Honor, and I object to it.

It’s rank hearsay.

THE COURT: Overruled.

THE WITNESS: His people were Barry

Rinn and Alex Selva.”

[7] It is manifest that the defense coun-

sel opened the subject of Neuberger’s prior

statements to Abbey concerning the identi-

ty of his source of cocaine. To the extent

that this subject was opened tc impeach

Neuberger’s ¢redibility, i.| e. syndicate

sources of cocaine, the prosecutor's question

ahout Neuberger’s prior identification of

the true source was proper rehubilitation.

Rule 801(dX1) of the Federai Rules of

Evidence provides in relevant part that:

=26=

586 FEDERAL REPORTER, 2d SERIES

“A statement is not hearsay if—

“(1). . . The declarant testifies at

the trial or hearing and is subject to

cross-examination concerning the state-

ment, and the statementis . . . (B)

consistent with his testimony and is of-

fered to rebut an express or implied

charge against him of recent fabrication

or improper influence or motive . ..”

Furthermore this Court in United States

v. Parr-Pla, 549 F.2d 660, 668 (9th Cir.),

cert. denied, 431 U.S. 972, 97 S.Ct. 2935, 53

L.Ed.2d 1069 (1977), held in a similar con-

text that:

“{Rinn’s}] counsel opened the door to ad-

mission of the full conversation by asking

{Abbey on direct examination] whether

[Neuberger] had made a particular state-

ment in the course of the conversation. _

See United States v. White, 377 F.2d 908,

911 (4th Cir. 1967).”

We conclude that the District Court did

not abuse its discretion or otherwise err in

overruling the Defense objection to the re-

ceipt in evidence of Neuberger’s prior iden-

tification by name of his cocaine source.

Issue 5:

The Defense contends that the Govern-

ment’s failure to inform them prior to trial

of an inculpatory statement made by Selva

to Neuberger, which was introduced at tri-

al, constituted a violation of the discovery

requirements of Fed.R.Crim.P. 16(aX1)A)

and constituted reversible error.

The statement in question occurred dur-

ing the course of the narcotics transaction

on October 6, 1976, at which time Abbey,

Neuberger, and Selva were present. Abbey

had met Neuberger and Selva inside the

Rochelle Motel and Bar, and Neuberger

stated he had “four pieces” under the dash-

board of his car. The three then proceeded

out of the bar to the car. It was during

this period, when Neuberger was retrieving

the paper bag from under the dashboard of

his car, that Abbey testified Neuberger

looked up at Selva and inquired “Was this.

bag ripped when you gave it to me?” to

which Selva uttered what the Defense now

challenges as a previously unknown incrimi-

nating response.

Abbey did not testify as to Selva’s al-

legedly incriminating response until nearly

the close of the trial when he was called by

the Defense. On cross-examination by

Government counsel, Abbey was asked

about the conversation he had heard be-

* tween Neuberger and Selva outside Roc-

helle’s Restaurant. Over Defense objec-

tions, Abbey was permitted to testify that

when Neuberger asked, “Was the bag

ripped when you gave it to me?” Selva

stated, “No, I don’t think so.”

The pertinent portion of Fed.R.Crim.P.

16(aX 1A) provides:

“Upon request of a defendant the

government shall permit the defendant to

inspect and copy . . . the substance

of any oral statement which the govern-

ment intends to offer in evidence at the

trial made by the defendant whether be-

fore or after arrest in response to interro-

gation by any person then known to the

defendant to be a government agent

It is manifest from the evidentiary record

that Selva at the time of his statement was

unaware that either Neuberger or Abbey

was in fact a Government agent. Further-

more, Selva was not then under “interroga-

tion” within the meaning of Rule

16(aX1XA) by either Neuberger or Abbey.

[8] We conclude that the District Court

did not abuse its discretion or otherwise err

in admitting into evidence Selva’s reply.

The several judgments of conviction and

sentences entered by the District Court on

September 12, 1977 are each affirmed.

AFFIRMED.

-27-

Appendix B

No. 77-3339, United States of America,

Plaintiff-Appellee, v. Barry Rinn and

Alex Selva, Defendants-Appellants.

Order

December 12, 1978, the Petition for

Rehearing filed by the appellants Rinn

and Selva has been considered and is

denied.

Before: ANDERSON and HUG, Circuit

Judges, and EAST,* Senior District Judge

*Honorable William G. East, Senior

United States District Judge for the

District of Oregon, sitting by

designation.

eee ae ene

-28-

Appendix C

No. 77-3339, United States of America,

Plaintiff-Appellee, v. Barry Rinn and

Alex Selva, Defendants-Appellants.

Order —

January 18, 1979. The motion of

appellants to recall and stay the

issuance of mandate in this cause is

GRANTED pending the timely filing of a

petition for writ of certiorari with

the United States Supreme Court. This

stay shall remain in effect for a

period of 30 days or until such time

as the United States Supreme Court

takes final action on said petition.

Before: ANDERSON and HUG, Circuit

Judges, and EAST,* District Judge

*The Honorable William G. East,

Senior United States District Judge

for the District of Oregon, sitting

by designation.

-29-

Appendix D

18 U.S.C., Section 3500 (Jencks Act)

(b) After a witness called by the

United States has testified on direct

examination, the court shall, on motion

of the defendant, order the United States

to produce any statement (as hereinafter

defined) of the witness in the possession

of the United States which relates to the

subject matter as to which the witness

has testified. If the entire contents

of any such statement relate to the

subject matter of the testimony of the

witness, the court shall order it to be

delivered directly to the defendant for

his examination and use.

(ad) If the United States elects not |

to comply with an order of the court

under subsection (b) or (c) hereof to

deliver to the defendant any such state-

ment, or such portion thereof as the

court may direct, the court shall strike

from the record the testimony of the

witness, and the trial shall proceed

unless the court in its discretion shall

determine that the interests of justice

require that a mistrial be declared.

(e) The term "statement", as used in

subsections (b), (c), and (da) of this

section in relation to any witness called

by the United States, means -

(1) a written statement made by said

witness and signed or otherwise adopted

Or approved by him;

(2) a stenographic, mechanical,

electrical, or other recording, or a

transcription thereof, which is a

substantially verbatim recital of an

-30-

Oral statement made by said witness and

recorded contemporaneously with the

making of such oral statement; or

(3) a statement, however taken or

recorded, or a transcription thereof, if

any, made b y said witness to a grand

jury.