The opinion of the court was delivered by: WEBER
Defendants William Edward Hayes, Jr. and Patrick Edward Mertens have filed motions for a new trial following their convictions on the conspiracy count and all substantive counts as charged in the indictment. Many of the grounds pleaded in these motions had been considered and ruled on at a previous stage of these proceedings in pretrial motions and hearings. Upon reconsideration of each of the defendants' claims we find no cause to reverse our prior holdings.
The first claim of error is the denial of the pretrial motions of both defendants for a bill of particulars. Among the defendants' assertions is that if the request had been granted the defendants would have been timely advised that allegations in the indictment concerning incidents "occurring on or about May 3, 1974" were allegations about incidents which in fact occurred on May 8, 1974. Defendant Mertens suggests that the prejudicial effect of the alleged misstatement of a critical date was to "preclude the possibility" of establishing an alibi defense. However, neither defendant apprises the court of what specific evidence not presented at trial would have been presented by the defense if the later date or other specific information sought by defendants had been revealed in a bill of particulars. When the motions for a bill of particulars were filed, we determined that the indictment was so drawn as to inform the defendants of the nature of the charges against them with sufficient precision to enable them to prepare their defenses and to avoid the danger of surprise at trial. See United States v. Bearden, 423 F.2d 805 (5th Cir. 1970); United States v. Rubino, 320 F. Supp. 613 (M.D.Pa.1970). Nothing now pleaded by defendants persuades us that the decision was an abuse of discretion. United States v. Addonizio, 451 F.2d 49 (3rd Cir. 1971) and United States v. Ahmad, 53 F.R.D. 194 (M.D.Pa.1971) demonstrate that the liberality with which F.R.Cr.P. Rule 7(f) is presently interpreted does not remove the discretion which trial courts must exercise in dealing with such motions in individual cases, and, when appropriate, denying the motions. Nor do we deem substantial or prejudicial any variance now claimed between the indictment and the proof at trial. The fact that the mailing and controlled delivery which occurred between May 3 and May 8 constituted an ongoing event, the "on or about" language qualifying the date in the indictment, and the obvious closeness of these two dates all serve to convince us that defendants have demonstrated no substantial variance. Moreover, where, as here, there is no showing that the alleged variance impaired defendants' ability to defend themselves, the variance must be considered harmless. United States v. Evans, 398 F.2d 159, 166 (3rd Cir. 1968); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970) and cases cited therein.
Hayes cites as error the failure of the trial court to grant his motion to dismiss because of the government's failure to timely provide him with a handwriting expert's reports pursuant to Rule 16 and Local Rule 24. On July 17, 1974 counsel for the government agreed to timely produce for Hayes' counsel any and all forthcoming expert's reports including handwriting reports. At the same time the government advised Hayes' counsel that it would offer into evidence at trial certain letters allegedly written by co-conspirator Patrick Mertens. On August 8, 1974 and on August 26, 1974 the government received from their documents examiners reports that on the basis of the evidence then available it was not possible to positively identify Patrick Mertens as the writer of the letters in question. These reports were not provided to Hayes' counsel until November 26, 1974. It is uncontested that it was not until the government had seized an examplar from Patrick Mertens on November 12, 1974 that the government's handwriting expert had a sufficient basis to identify the letters as writings of Patrick Mertens. Hayes' claim of prejudice from the late production of the first two reports lies in his allegedly resultant failure to object to two motions by the government to continue the trial date, first from September 9, 1974 and then from November 4, 1974. We note that the continuance of the September 9 trial date was granted without objection on September 9th. On that date, during a suppression hearing, co-defendant Edward Mertens abruptly withdrew his not guilty plea and entered a plea of guilty. Hayes argues that if the government had complied with its agreement and with Local Rule 24 his counsel would have been aware of the government's inability to have admitted into evidence the critical documents and counsel would have demanded an immediate trial. Hayes does not contend, however, and the record does not show, any wilful withholding of the first two reports from Hayes by the government. On October 4, 1974, copies of the first two reports were served on counsel for Patrick Mertens but not on counsel for Hayes, apparently because the United States Attorney was unmindful of the fact that the conspiracy count of the indictment necessitated the production of the report on Patrick Mertens' handwriting to both counsel.
Moreover, the appropriate sanctions for a failure to make discovery under Rule 16 are (1) ordering the delinquent party to permit the discovery of inspection of the materials not previously disclosed, (2) granting a continuance, or (3) prohibiting the party from introducing into evidence the material not disclosed. Rule 16(g). We chose alternative (1) and we now find no abuse of discretion in our having done so. It is only in the most unusual circumstances that a court will consider dismissal of an indictment for failure to timely provide discovery materials, and we find no such circumstances here. See 8 Moore's Federal Practice § 16.05(1), p. 16-31 and cases cited therein.
The scheduling of criminal cases and the granting of continuances of trial dates are matters within the discretion of the trial court. Before the continuances were granted in the within action several factors were taken into consideration. These included the availability of the Assistant United States Attorney originally assigned to the case, the likelihood of defendant Patrick Mertens' return to this country from Columbia in time for a trial with his co-defendant, the availability of government witnesses, the necessity for immunity proceedings for Edward Mertens, and other matters. It is impossible to now determine what effect, if any, the exhortations of Hayes' counsel for an immediate trial might have had on the court's granting of the continuances. Absent a claim that the government intentionally attempted to deprive Hayes' counsel of access to material he was entitled to, we do not think it appropriate to attempt to reconsider the merits of the motions for continuance.
Hayes also claims he is entitled to a new trial because of an allegedly unlawful search of his home at 927 West 8th Street, Erie, Pennsylvania. These premises were visited twice by federal agents. The first intrusion, the one challenged here, was without a warrant and included no seizure. During the first visit, however, agents did observe such evidence in plain view as to give them probable cause to support the issuance of the warrant under which the second search and seizure was conducted. Hayes asserts that because the agents who initially entered his home did not encounter exigent circumstances as well as probable cause any seizures which ultimately resulted from this visit cannot be upheld. Defendant Hayes cites Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385 (D.C. Cir. 1970), for the proposition that no warrantless search of a dwelling place is valid in the absence of several specified conditions. We read Dorman, however, to require a case by case analysis. We find the factors cited in Dorman not to be prerequisites to any valid warrantless search but only factors which had "particular pertinence in the case at bar" -- a warrantless night time search upheld by the Court of Appeals.
In the instant case we find upon consideration of all the circumstances attending the initial entry by the agents that there was no need for a warrant. On May 8, 1974 federal agents effected the controlled delivery of two envelopes to 118 West 4th Street. The envelopes had been mailed from Cali, Columbia and were addressed to an Arthur Perro, 118 West 4th Street. Prior to the controlled delivery agents had intercepted the envelopes and confirmed that they contained cocaine. The agents had extracted most of the cocaine and replaced it with another white powder before the envelopes were resealed and dusted with fluorescent powder.
At about 10:30 a.m. on May 8th a postal carrier placed the two envelopes in the mailbox at 118 West 4th Street. Agents observed Edward Mertens arrive and enter the house at 3:10 p.m. Then, a few minutes later, they observed the arrival of an unidentified white male later determined to be Hayes. Hayes also entered the premises. After a few moments the two men appeared outside the house and walked together to the mailbox. Mertens removed something from the mailbox and both men showed evidence of some excitement. Both men then re-entered the residence.
A short time later Hayes left the premises driving a blue Volkswagen. Surveillance was unable to keep up with Hayes following his departure. A short time after that Mertens left the residence and began to drive away in a green Pontiac. The agents pulled Mertens over to the side of the road and arrested him. At this time one of the agents observed that Mertens had a white powder around his nostrils.
Mertens was returned to his residence at 118 West 4th Street and the agents then executed a search warrant they had for that address. The search produced certain documentary evidence, some cocaine, and some using paraphernalia. The agents knew that one of the envelopes which had been removed from the mailbox had contained a United States Customs information booklet in which the cocaine had been secreted. The search of Mr. Mertens' residence, however, produced only the original outer envelope in which the booklet had been mailed and not the booklet itself or its contents. During this search Mr. Mertens' hands were placed under a black light and were observed to fluoresce.
The agents then entered the house. Once inside, they determined that the white male observed in the window was not Hayes. Lumsden, while standing in the living room with Mrs. Hayes and the male, observed on the top of the television set an envelope postmarked Cali, Columbia. The observed envelope was similar in several respects to other envelopes which Lumsden knew had been used to mail cocaine to Erie.
We find that the warrantless entry of the residence at 949 West 8th Street was, under the circumstances, completely justified. The agents had reason, especially following Mrs. Hayes denial, to believe that Hayes was in the house. They had every reason to suspect that Hayes had the missing booklet and its contents in his possession when he left Mertens' home. Unless an early arrest could be effected it was very possible that ...