United States v. Capers

61 F.3d 1100
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 10, 1995
DocketNos. 93-5625, 93-5664, 93-5668, 93-5669, 93-5697, 93-5699 and 93-5731
StatusPublished
Cited by150 cases

This text of 61 F.3d 1100 (United States v. Capers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Capers, 61 F.3d 1100 (4th Cir. 1995).

Opinion

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge ERVIN and Judge MOTZ joined.

OPINION

MICHAEL, Circuit Judge:

After a jury trial that lasted over two weeks, all seven appellants were convicted for conspiracy to distribute and possess with intent to distribute drugs. Five of them were also convicted for possession of drugs with intent to distribute. In addition, one of them was convicted for money laundering. Appellants raise several issues in this appeal. Finding no error, we affirm.

I. Background

In the fall of 1991 the Drug Enforcement Administration (DEA) initiated an investigation into cocaine and crack distribution in and around a nightclub in Ridgeville, South Carolina. With the assistance of a confidential informant, Lowell Smith, the DEA made controlled buys from the targets of the investigation. In the spring of 1992 the DEA, assisted by two additional confidential informants, Lester Williams and Hezekiah Salone, expanded its investigation to include the nearby towns of Holly Hill and Eutawville, South Carolina. Salone and Williams, too, made controlled buys.

On October 14,1992, seventeen defendants were charged in a thirty-one count superseding indictment in the District of South Carolina. Count One charged all seventeen defendants with conspiring to distribute and possess with intent to distribute crack and cocaine, in violation of 21 U.S.C. § 846. Counts Two through Twenty charged most defendants with possession of crack and co[1103]*1103caine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts Twenty-One through Thirty-One charged defendant Darrol Harrison, the putative leader of the drug distribution scheme, with money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)© and 18 U.S.C. § 2.

Six defendants entered into plea agreements prior to trial, and one became a fugitive. The remaining ten defendants had a jury trial on March 1^4 and March 17-31, 1993. The jury rendered guilty verdicts on most of the counts before it. Seven of the ten defendants who went to trial join in this appeal.

II. Discovery Issues

A.

Appellants first contend that the government violated both the Jencks Act, 18 U.S.C. § 3500, and the rule set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as extended in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (impeachment evidence), by failing to disclose a notebook kept by informant Salone, a major government witness at trial. For the reasons discussed below, we disagree.

In early 1992 Salone began writing in a spiral notebook a detailed daily log of the various drug activities he observed as an informant in this case. Salone kept the notebook locked in his suitcase. He showed the notebook to no one.

In August 1992 Salone testified before the grand jury. Between September and December 1992 appellants filed motions for discovery of exculpatory and impeachment information and Jencks Act material. They asked for, among other things, all such papers within the possession, custody, or control of the government, as well as any notes prepared by any government employee. The government did not turn over Salone’s spiral notebook.1 In December 1992, a few months before trial, Salone left South Carolina and destroyed the spiral notebook.

Appellants first learned about the spiral notebook at trial in late March 1993 during Harrison’s cross-examination of Salone. Various appellants then took turns cross-examining Salone about the notebook (asking who knew about it, who knew he destroyed it, et cetera). Because they had not received the notebook during discovery, appellants moved for a mistrial and, in the alternative, to strike Salone’s testimony. The government took the position that it was as surprised as appellants were to learn of the notebook. The district court denied the motions, and appellants claim this was error.

In order to prevail on their Giglio and Jencks Act claims, appellants must show that the government had possession, or at least was aware, of Salone’s spiral notebook. 18 U.S.C. § 3500(a) & (b) (Jencks Act, by its terms, applies only to statements “in the possession of the United States”); United States v. Atkinson, 512 F.2d 1235, 1239 (4th Cir.1975) (under Giglio, no duty to disclose when government did not know about or possess non-disclosed information); see United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980); United States v. Goldberg, 582 F.2d 483, 490 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979). The government argues that it neither possessed nor was aware of the spiral notebook. Appellants say the government had custody or control over the notebook because, they allege, Agent Johnny Daniels was aware of it. Daniels, a narcotics agent with the Isle of Palms Police Department, was co-case agent in this investigation. He had primary responsibility for supervising Salone, and Salone reported to him almost every day (usually by telephone).

Our review of appellants’ cross-examinations of Salone, as well as Agent Daniels’ affidavit, leads us to conclude that Daniels was not aware of the spiral notebook. Sa-lone testified that he told Daniels he wrote things down “every now and then” and showed Daniels some random notes he had jotted down on loose paper (e.g., license plate numbers). But Salone did not show Daniels the spiral notebook nor tell Daniels he was [1104]*1104keeping the detailed daily log in the spiral notebook. This was the gist of Salone’s testimony on cross-examination, and it was confirmed by Daniels in his affidavit:

During the investigation, I was not aware that Hezekiah Salone was keeping a personal notebook of his daily activities. He never informed me of this and I never gave him any instructions concerning whether or not to keep a notebook. I did believe that he may be writing down license plate numbers because he would call on occasion and give me license plate numbers for use in our investigation. On a few occasions, he gave me scrap pieces of paper with license plate numbers written on them.

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Bluebook (online)
61 F.3d 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-capers-ca4-1995.