Appeals from the United States District Court for the District of Columbia (No. 91cr00677-01) (No. 91cr00677-02)
Before: Wald, Williams and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with No. 96-3049
Opinion for the Court filed by Circuit Judge Wald.
A jury convicted Dennis S. Davis and Bobby A. Holton of crimes involving the unlawful possession and distribution of crack cocaine, conspiracy and the unlawful use of a communications facility. On appeal, both appellants challenge their convictions on the basis of alleged errors made by the district court when it (1) permitted the jurors to consider government-prepared transcripts of drug transactions during deliberations; (2) replayed recorded drug transactions for the jury during deliberations without the defendants being present; (3) refused to voir dire the jury about possible prejudice stemming from a television news program; and (4) determined that handwritten notes made by a government witness were not producible Jencks Act material. In addition, appellants contend that the Fifth Amendment requires a remand for resentencing under the guidelines applicable to individuals who have committed crimes involving powder cocaine. Finding none of these claims meritorious, we affirm the convictions and sentences.
In October 1991, a confidential informant advised the Metropolitan Police Department ("MPD") that individuals were selling drugs at the Barry Farms housing complex in southeast Washington, D.C. The MPD launched an undercover investigation in which MPD Detective Michael J. Quander posed as the brother of the confidential informant in order to gain an introduction to the drug dealers. Detective Quander made six trips to the Barry Farms complex during which he purchased approximately 11 ounces of crack cocaine. Following the last purchase, the police executed search warrants at two homes in the complex and seized additional drugs and drug paraphernalia. They arrested appellants Dennis S. Davis, Bobby A. Holton and several others.
The government's evidence against appellants included body-wire tape recordings of conversations between Detective Quander and the individuals with whom he engaged in drug transactions. A trial was held at which the body-wire tapes were admitted into evidence but, based on an agreement between the parties, were never played to the jury. Appellants were convicted of all the charges against them. On appeal, this court vacated the convictions against appellants and remanded the case for a new trial.
At the second trial, the government announced its intention to play portions of the body-wire recordings to the jury. Defense counsel unsuccessfully moved to have the tapes excluded because of their poor quality. Just prior to calling Detective Quander to the witness stand, the government informed the court that it had not yet prepared transcripts of the tape recordings. The trial was recessed so that the government and defense counsel could listen to the tape recordings and the government could prepare transcriptions of the recordings. When presented with the government's transcripts, defendants objected to their accuracy, arguing that the tapes were inaudible in many parts and that, because defendants denied involvement in the drug transactions, the attribution of statements to them would be prejudicial. Appellant Davis' counsel proffered an alternative version of the transcript that eliminated the attributions and substituted "inaudible" for some of the statements. At the government's request, the court listened to the tape recordings while reading along with the government-prepared transcripts. The court heard objections from the defendants and ruled that the government transcripts of the recordings would aid the jury in listening to the tapes during the trial, but that the transcripts themselves would not be given to the jury during its deliberations.
The tapes were played and authenticated during the examination of Detective Quander. The government-prepared transcriptions were distributed to the jury before the tapes were played and were collected directly afterwards. On cross-examination of the detective, it was revealed that Detective Quander had prepared handwritten notes or transcriptions of the tape recordings. Defense counsel made a Jencks Act request for the written notes, but the district court concluded that the documents did not constitute Jencks material and refused to hold a hearing. At defense counsel's request, however, the court agreed to examine the documents in camera and ordered that the government file the handwritten notes under seal so that they could be examined on appeal.
The evening after the defendants began presenting their cases, ABC News showed a Nightline program concerning the disparate sentences imposed for crimes involving powder cocaine and those involving cocaine base or crack cocaine. Among the individuals interviewed on the program were District of Columbia Superior Court Judge Reggie Walton and Michelle Roberts, a criminal defense attorney who practices in the District of Columbia. Judge Walton talked about patterns of violent behavior related to the crack cocaine trade and speculated that high mandatory sentences may have contributed to the lowering of the homicide rate in Washington, D.C. Ms. Roberts criticized the sentencing structure for crimes involving crack cocaine as lacking deterrent value. When trial resumed the following morning, counsel for appellant Holton requested that the district judge voir dire the jury in order to determine whether any of the jurors had viewed the television program and, if so, what impact it might have on their deliberations. The district court refused to question the jurors because they had been probed about their ability to be fair and impartial during jury selection and frequently had been admonished not to decide the case based on anything heard outside of the courtroom.
After deliberations began, the court received notes from the jury asking to hear all of the tape recordings. The district judge consulted with counsel and arranged a procedure whereby his law clerk would play the tapes for the jury in the courtroom-which the judge described as "an extension of the jury room"-and distribute the transcripts as listening aids, to be collected at the completion of the playing of the tapes. Defense counsel objected to the jurors receiving the transcripts during deliberations because the transcripts had not been admitted into evidence, were not accurate and because the court had stated that the jury would not be given the transcripts during deliberations.
Appellant Holton was convicted of one count of Conspiracy to Distribute Cocaine Base in violation of 21 U.S.C. Section(s) 846 and 841, four counts of Unlawful Distribution of Cocaine Base Within 1000 Feet of a Playground and School in violation of 21 U.S.C. Section(s) 860(a) and 18 U.S.C. Section(s) 2, and one count of Unlawful Use of a Communication Facility in violation of 21 U.S.C. Section(s) 843(b). Appellant Davis was convicted of one count of Conspiracy to Distribute Cocaine Base in violation of 21 U.S.C. Section(s) 846 and 841, six counts of Unlawful Distribution of Cocaine Base Within 1000 Feet of a Playground and School in violation of 21 U.S.C. Section(s) 860(a) and 18 U.S.C. Section(s) 2, and one count of Unlawful Use of a Communication Facility in violation of 21 U.S.C. Section(s) 843(b). The court sentenced appellant Holton to concurrent terms of 363 months imprisonment for the conspiracy and distribution offenses and 48 months imprisonment for the communication facility offense, and appellant Davis to concurrent terms of 370 months imprisonment for the conspiracy and distribution offenses and 48 months imprisonment for the communication facility offense. These consolidated appeals ensued.
A.Use of Transcripts and Replaying of Tapes During ...