The opinion of the court was delivered by: DITTER
In this case, Steven Lehr
was convicted of conspiring to manufacture, possess, and distribute phencyclidine (PCP), and to distribute and possess cocaine in violation of title 21, United States Code, sections 841(a)(1) and 846. Defendant's post trial motions contend there was insufficient evidence to support his conviction of conspiracy to distribute PCP and cocaine, and that there was error in pre-trial and trial rulings. For the reasons which follow, his motions must be denied.
Viewed in a light most favorable to the Government, as the jury's verdict requires, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the evidence showed that Steven Lehr was integrally involved in a drug manufacturing and distribution scheme for several years headed by his brother, Richard Lehr. The testimony revealed that the conspiracy focused primarily on manufacturing and distributing PCP in the form of "killer weed" sometimes known as "green". Specifically, the evidence showed that certain of the conspirators, including Steven Lehr, first manufactured PCP in liquid form,
and then mixed the liquid with parsley flakes thereby forming the killer weed. The killer weed was delivered in one to five pound quantities to other conspirators who then sold the substance in smaller quantities. The evidence further showed that members of the drug-selling ring sold or imported cocaine from Florida for distribution in Eastern Pennsylvania and elsewhere.
Although scant compared to that dealing with PCP, the evidence as to cocaine was sufficient to show its possession and distribution also was an object of the conspiracy. The cocaine incidents were related by William Nattress, an unindicted co-conspirator who cooperated with the Drug Enforcement Administration (DEA) during its investigation. Nattress testified that in November, 1978, he was summoned by Richard Lehr to Springton Manor, a house that then was the base of operations of the conspiracy. Upon his arrival at the house, Nattress observed defendant, Richard Lehr, and Joseph Connehey, another co-conspirator, mixing a quantity of cocaine with a neutral substance, and personally using it. Nattress soon was informed that Richard Lehr was going to California and then to Florida on business, Nattress was to care for the house during Lehr's absence, and a quarter pound of cocaine would be left with Nattress for his use or sale. Nattress testified that Richard Lehr was going to California to sell cocaine and to Florida to get more. Nattress further testified he sold one ounce of cocaine to James "Biggie" Slaughterback, and that defendant, as he did when killer weed was sold, collected the money from Slaughterback. Additionally, Nattress testified that Richard Lehr telephoned from Florida, instructing him to direct Steven Lehr to send a drug-weighing scale and money to purchase drugs to Richard in Florida. The money was sent as Richard said it should be.
Although Richard Lehr returned with no drugs, shortly thereafter, Neal McCrossen, another co-conspirator, and Connehey, arrived from Florida with a large quantity of cocaine. The logical inference from this testimony was that Richard Lehr travelled to Florida from California, purchased a quantity of cocaine with the money sent by defendant, and then directed Connehey and McCrossen to transport the cocaine to Pennsylvania. Because it involved at least five members of the conspiracy, money generated from drug sales by conspirators, and equipment used by the conspirators to weigh other drugs, the cocaine transactions described by Nattress clearly were directed and financed by members of the PCP distribution ring. Furthermore, it is equally clear that defendant participated in this aspect of the conspiracy by being present when cocaine was adulterated, by collecting money after Nattress sold cocaine, and by sending money to his brother in Florida to purchase the cocaine. Therefore, there was evidence from which the jury could find that the conspiracy had as an object the possession and distribution of cocaine, in addition to PCP, and defendant's personal involvement therein. Even if the evidence did not show Steven Lehr's personal involvement in matters pertaining to cocaine, his voluntary and knowing continued participation in other activities of the conspiracy would render him liable for its acts dealing with cocaine. Accordingly, the evidence supported the jury's verdict, thus making denial of defendant's post trial motions on this ground necessary.
Exceptions to Grand Jury Proceedings
Defendant next contends I erred in refusing his pretrial motions for disclosure of grand jury transcripts and for dismissal of the indictment based on prosecutorial misconduct.
There was no error in my rulings.
During the grand jury testimony of James Carpenter, III, an eventual co-defendant of Steven Lehr, the prosecutor, out of the presence of the witness, stated to the grand jurors that in the government's opinion, the witness had committed perjury and that it would be investigated. Additionally, in response to a comment by a grand juror that Mr. Carpenter smelled of PCP, the prosecutor commented that he had tried a case involving methamphetamine "and the courtroom stunk." When these matters were brought to my attention, I requested the Government to submit to me all of the grand jury transcripts for an in camera examination. After reviewing the transcripts, I denied the motions for disclosure and to dismiss.
As to disclosure of grand jury matters, rule 6(e)(3)(C)(ii) of the Fed. R. Crim. P. provides that:
(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made --
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
Fed. R. Crim. P. 6(e)(3)(C)(ii)(1982). Notwithstanding the plain language of Rule 6(e), courts have required a defendant to make a showing of "particularized need" prior to the court authorizing disclosure. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979). "Particularized need" has been defined by Justice Powell as follows:
From United States v. Procter & Gamble Co. 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958) and Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966) emerges the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.
Douglas Oil, supra, 441 U.S. at 222. (citations omitted).
Because the aforementioned portions of Mr. Carpenter's grand jury testimony may have led defendant to believe that similar comments by the prosecutor occurred during the testimony of other witnesses and thus, give him additional fuel for a motion to dismiss based on prosecutorial misconduct, I conducted an in camera review of the grand jury material. United States v. Singer, 660 F.2d 1295, 1302 n. 15 (8th Cir. 1981), cert. denied, 454 U.S. 1156, 71 L. Ed. 2d 314, 102 S. Ct. 1030 (1982). Had there been instances of similar conduct by the prosecutor, I might have felt compelled to disclose to defendant at least those portions of the grand jury transcripts in which it occurred. Douglas Oil, supra, 441 U.S. at 222 n. 12. Having found nothing I concluded the defendant had not demonstrated a particularized need. There was no error in my ruling.
It is clear that "in federal criminal proceedings, the right to indictment by an unbiased grand jury is guaranteed by the fifth amendment." United States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979) (citation omitted). " United States v. Bruzgo, 373 F.2d 383 (3d Cir. 1967) and United States v. Riccobene, 451 F.2d 586 (3d Cir. 1971), both recognize the authority of . . . [the] court, in the exercise of its supervisory power, to order dismissal of the indictment as a remedy for prosecutorial misconduct before the grand jury." Id. Quoting ABA Standards Relating to the Prosecution Function and the commentary thereto; the United States Court of Appeals for the Third Circuit stated in United States v. Birdman, 602 F.2d 547 (3d Cir. 1979):
The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury.
Id. at 555 (emphasis by Judge Van Dusen). There are no hard and fast rules, however, as to sanctions when the record discloses instances of prosecutorial misconduct before the grand jury. After noting that both Bruzgo and Riccobene spoke in terms of suppression of the evidence after a showing of actual prejudice,