The opinion of the court was delivered by: HANNUM
Defendant was convicted by a jury on June 24, 1977, of having conspired with four codefendants to distribute heroin and to possess heroin with intent to distribute. On July 22, 1977, defendant was sentenced to fifteen (15) years imprisonment and a lifetime special parole term. An appeal followed and the case is presently before this Court on remand from the Third Circuit Court of Appeals. United States v. Walden, 578 F.2d 966 (3d Cir. 1978). The format for this Memorandum is sourced from the opinion of Wyzanski, J., in United States v. Campbell, 199 F. Supp. 905 (D.Mass.1961).
The case was remanded for two purposes. First, this Court is to supplement the record with a statement of reasons for denying a further continuance as requested by defendant in his motions of June 13 and 14, 1977. Second, this Court is to examine the handwritten notes and draft reports of Drug Enforcement Administration (D.E.A.) Agent Wallace B. Mitchell and make findings on whether these constitute "statements" within the meaning of the Jencks Act, 18 U.S.C. § 3500 (1970), and if so, whether the failure to order their disclosure to defense counsel at trial was harmless error.
Anticipating the directions contained in the formal Court of Appeals Mandate which was filed July 10, 1978, the Court directed the Assistant United States Attorney to produce the handwritten notes and draft reports in question. By letter of July 6, 1978, however, the Court was informed that neither the Assistant United States Attorney nor the agents of D.E.A. were able to locate the handwritten materials. In light of this development, the Court, after a conference with counsel, scheduled a hearing for July 28, 1978, at 10:00 A.M. On July 26, 1978, the Court received a letter from Harry R. Seay, Esquire, requesting that the hearing be continued until the week of August 14 due to a recent family tragedy. N.T.-1 at 31, 32.
The rescheduled hearing was conducted on August 16, 1978 and the notes of testimony are transmitted herewith.
Based on the testimony of defendant adduced at the August 16, 1978 hearing, the government requested a second hearing by letter of August 22, 1978 to which the Court assented by scheduling a second hearing on September 18, 1978. Notes of testimony from the second hearing are also transmitted with this Memorandum.
II. DENIAL OF THE CONTINUANCE
1. Since Harry R. Seay, Esquire, represented three defendants in the case, N.T. at 11, the Court conducted a conflict of interest hearing on June 6, 1977.
At the hearing, it became apparent that Walden in fact Was concerned about Mr. Seay's representing him along with other defendants and he so stated in open court:
"A. I do not wish to be represented by any attorney that is defending any defendant that is involved in this case, Your Honor.
Q. So you are stating, then, that you do not want Mr. Seay now?
A. Since Mr. Seay is representing Mr. Ford and Mr. Hines no, sir. I have no desire for his services at this time." N.T. at 19.
2. Immediately following the conflict of interest hearing on June 6, a conference was held in chambers during which Harold Randolph, Esquire, was contacted concerning his availability to represent Walden. N.T.-2 at 7, 8, 30, 31. At the conference, it was decided that Mr. Randolph was to assume the defense of Walden and that trial was to commence within one week. N.T.-2 at 30, 31. After the conference, the matter was explained to Walden by Mr. Seay and defendant expressed no objection to his being represented by Mr. Randolph.
N.T.-2 at 10, 35, 36.
3. On June 7, 1977, Mr. Randolph informed the Court by telephone that a conflict in his schedule could interfere with his representation of Walden. N.T.-2 at 45, 46. The conflict concerned a multi-defendant criminal case that was to be tried before Honorable John Gerry of the United States District Court for the District of New Jersey on June 13, 1977. N.T.-2 at 46.
4. Efforts to obtain counsel to replace Mr. Randolph in the New Jersey case were successful, however, and by the afternoon of June 9, 1977, it was clear to all concerned that Mr. Randolph was to proceed in the ...