United States v. Noble C. Beasley

576 F.2d 626, 42 A.F.T.R.2d (RIA) 6360, 1978 U.S. App. LEXIS 10177
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 13, 1978
Docket77-5302
StatusPublished
Cited by86 cases

This text of 576 F.2d 626 (United States v. Noble C. Beasley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Noble C. Beasley, 576 F.2d 626, 42 A.F.T.R.2d (RIA) 6360, 1978 U.S. App. LEXIS 10177 (5th Cir. 1978).

Opinion

ALVIN B. RUBIN, Circuit Judge:

For the third time, 1 we consider the conviction of Noble C. Beasley for willful evasion of income taxes for the year 1971 2 and for conspiracy with three others to distribute heroin in Mobile County, Alabama. This review centers on whether there was a violation of the Jencks Act 3 as a result of the government’s failure, albeit in good faith, to produce pre-trial statements given by a key prosecution trial witness and whether the scope of cross-examination of that witness at trial was unduly restricted. Because, under the Jencks Act, we consider results, not motive, we conclude that the government violated its statutory duty, however innocently, in failing to produce statements in the possession of a government department. We conclude that, despite the good faith effort of the U.S. Attorney to comply with the statutory mandate, and the diligence of the trial judge who conducted with fairness not only a lengthy trial but also an exhaustive post-conviction hearing, the defendant is entitled to a new trial on the heroin conspiracy charge. Because, however, we find that the failure to produce was harmless beyond reasonable doubt with respect to the tax evasion conviction, we affirm that conviction. Attempting to avoid reiteration so far as possible, we now relate the reasons for these conclusions.

I.

The heroin conspiracy count was supported principally by the testimony of two government witnesses referred to in our prior opinion: Dickie Diamond, who related at length and in detail his own sales of heroin to Beasley; and Barbara Heron, who had once borne Beasley a child, and who confirmed some of Diamond’s account, and testified further that she had acted as a heroin courier for Beasley in transactions outside the scope of the conspiracy, and indeed designed to eliminate Diamond’s role as Beasley’s supplier. A careful examination of the lengthy record satisfies us that Mrs. Heron’s testimony was ample to show a source of illicit income, but was not, by itself, adequate to support the jury verdict beyond reasonable doubt on the heroin conspiracy charge. Mrs. Heron testified that Beasley was engaged in selling narcotics, that he obtained a supply at one time from Diamond, and that she later established another contact, and brought further supplies directly to Beasley. But she did not testify to facts that would sufficiently prove the conspiracy charged to have existed among Beasley, James H. Finley, Roy S. Matthews, and Reginald Wilson. She was able only in part to corroborate Diamond’s testimony; she did know the co-conspirators; she did *628 know that they were Beasley’s friends, and she was able to confirm various aspects of Diamond’s account.

Thus, Diamond’s testimony was indispensable. Had he not testified at all, and had the government put on its case, just as it did, but sans Diamond, the trial judge would have been obliged to direct a verdict on the heroin conspiracy count. For this reason, Diamond’s credibility was also crucial.

Prior to and during the trial, the defense sought to obtain Diamond’s Jencks Act statements. The Assistant U.S. Attorney performed his duty in this regard with commendable zeal. He produced a statement given by Diamond to an Internal Revenue Service agent named Doyle Coats in New York, on April 24, 1973. Diamond had said nothing to Coats about any prior statement. Because the case had originated as an Internal Revenue Service prosecution, the Assistant U.S. Attorney had not worked with Drug Enforcement Administration (DEA) agents, but he did attempt to determine from that agency whether it had any Jencks Act material. He was told that there was none; he so informed the court, and he produced no material from that agency.

Beasley sought a writ of certiorari from the Supreme Court to review his conviction. While the application for the writ was pending, an attorney in the Office of the Solicitor General, at the request of Beasley’s counsel, made another inquiry of the DEA office in New York. As a result of a computer check, that office located a statement made by a DEA inspector Mortimer L. Benjamin recounting the results of interviews with Diamond held on March 16 and March 20, 1972 in a state penal institution and in the presence of another DEA agent, Weiser. Whether this statement (the Benjamin statement) was within the scope of the Jencks Act is an issue we will discuss below.

The Solicitor General suggested that the Benjamin statement might be Jencks Act material, and that the Supreme Court should grant the writ and remand the case. Responding to this suggestion, the Supreme Court in Beasley v. United States, 1976, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201, vacated the judgment and remanded the case “for further consideration in the light of the position presently asserted by the government.” Upon reconsideration, we stated, “The facts revealed by the Solicitor General’s investigation raised serious questions as to the correctness of the original rulings on the Jencks Act and cross-examination grounds . . . United States v. Beasley, 5 Cir. 1976, 535 F.2d 293, 294. We remanded “the entire case to allow the district court to determine what, if any, effect that material may have had on the conduct of the trial as a whole and its constituent counts.” Id.

After the remand, the Assistant U.S. Attorney made further inquiries and learned that, on April 6, 1973, Diamond had been interviewed by DEA agent Claude Smith in Providence, Rhode Island, and that a tape recording had been made of a large part of the interview. The recording and a transcript of it (the Smith interview), 30 pages in length, were then filed in the record. Other agents testified that Diamond had been a government informant with respect to other matters in 1967. The trial judge held a lengthy evidentiary hearing that he found to be “exhaustive” and “exhausting,” and considered the Benjamin report, the Smith interview, and a host of other material. He made detailed findings of fact. 4

During the various interviews of Diamond, the government’s principal interest, at least initially, was in determining whether government employees in the DEA, the Customs office, or other agencies were engaged in illicit drug transactions, or were cooperating with persons dealing in prohibited substances. Because the Beasley case originated with the tax investigation, Diamond did not initially furnish any information with respect to it, and his comments on *629 Beasley were only peripheral to the government’s primary purpose. However, there were various conflicts in the statements made by Diamond in his interviews. These are analyzed in detail in the appendix.

II.

In Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Andres C. (Dissent)
Supreme Court of Connecticut, 2024
Phillips v. Whittington
Fifth Circuit, 2022
People in the Interest of E.G
2016 CO 19 (Supreme Court of Colorado, 2016)
Woodfox v. Foti
609 F.3d 774 (Fifth Circuit, 2010)
United States v. Jones
620 F. Supp. 2d 163 (D. Massachusetts, 2009)
United States v. Adams
314 F. App'x 633 (Fifth Circuit, 2009)
United States v. Graham
Sixth Circuit, 2007
United States v. Hartzog
189 F. App'x 340 (Fifth Circuit, 2006)
United States v. Causey
356 F. Supp. 2d 681 (S.D. Texas, 2005)
United States v. Garrett
238 F.3d 293 (Fifth Circuit, 2001)
United States v. Montgomery
210 F.3d 446 (Fifth Circuit, 2000)
United States v. Volpe
42 F. Supp. 2d 204 (E.D. New York, 1999)
United States v. Martinez
151 F.3d 384 (Fifth Circuit, 1998)
United States v. Ramirez
145 F.3d 345 (Fifth Circuit, 1998)
Flores v. Cochran
137 F.3d 1275 (Eleventh Circuit, 1998)
Curry v. United States
658 A.2d 193 (District of Columbia Court of Appeals, 1995)
Commonwealth v. Santiago
654 A.2d 1062 (Superior Court of Pennsylvania, 1994)
United States v. James Gordon Keller
14 F.3d 1051 (Fifth Circuit, 1994)
United States v. Marcus Duke Shelton
19 F.3d 13 (Fourth Circuit, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
576 F.2d 626, 42 A.F.T.R.2d (RIA) 6360, 1978 U.S. App. LEXIS 10177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-noble-c-beasley-ca5-1978.