UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 22, 1985
THE UNITED STATES
GARY LEE BARNI, DORIAN ARLETT, GARY LEE BARNI, APPELLANT
Appeal From the United States District Court For the Western District of Pennsylvania (Pittsburgh) D.C. Criminal No. 83-00134-01 District Judge: Honorable Carol Los Mansmann
Before: HUNTER, GARTH, and VAN DUSEN, Circuit Judges
HUNTER, Circuit Judge :
1. Following a jury trial in the United States District Court for the Western District Court for the Western District of Pennsylvania, appellant Gary Lee Barni was convicted of conspiring to manufacture, distribute and possess with intent to distribute amphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 846 (1982), and distributing and possessing with the intent to distribute a quantity of amphetamine, in violation of Title 21, United States Code, Section 841(a)(1) (1982). The district court sentenced him to a term of three years imprisonment on Count One, and a term of four years imprisonment on Count Two, to run consecutively. Barni alleges that the district court committed numerous errors. Although we address each separately, we find that appellant's contentions are meritless and do not warrant a reversal of his conviction.
2. According to the record in this case, an undercover informant associated with the Riverside, California Police Department gave Barni the undercover telephone number of two detectives with the Allegheny County Narcotics Division in Pennsylvania. Barni called the number and set up a meeting with them. The detectives, posing as individuals interested in purchasing narcotics, met with Barni and Dorian Arlett to discuss the purchase of "crank," the street term for methamphetamine. They arranged for Barni to bring them six ounces of crank as a sample, and Barni told them that he could provide them with two pounds of crank at a later date. Barni called the detectives on May 23, 1983, to arrange another meeting. At the meeting, he told them he had eight ounces of speed (amphetamine) and arranged to meet them again that day, at which time he gave them eight plastic baggies of a brown substance subsequently determined to contain amphetamine. The detectives and Barni conducted numerous further telephone conversations and meetings, each one electronically taped by the detectives. During their negotiations, Barni told the detectives he planned to manufacture a large quantity of amphetamine and explained his manufacturing technique.
3. As his first assignment or error, appellant contends that, pursuant to his Sixth Amendment right to confront the witnesses against him and in the interest of fundamental fairness and justice, the district court should have compelled the presence at trial of the informant who gave the detectives' number to Barni. Barni claims that the informant's testimony would have supported his story both that the government entrapped him and that the substance he sold to the agents was not a controlled substance. He argues that the failure to secure the informant's presence deprived him of his right to produce evidence in support of his testimony.
4. All that is required to satisfy the Confrontation Clause of the Constitution "is that the process issue and the Marshal exercise due diligence in a good faith attempt to secure service of the process." Maguire v. United States, 396 F.2d 327, 330 (9th Cir. 1968), cert. denied, 393 U.S. 1099 (1969). See also Barber v. Page, 390 U.S. 719, 724-25 (1968); United States v. Fera, 616 F.2d 590, 598 (1st Cir.), cert. denied, 446 U.S. 969 (1980). Appellant erroneously relies on Roviaro v. United States, 353 U.S. 53 (1957), to support his contention that the Sixth Amendment requires that the government produce the informant in this case. Roviaro holds only that when the government's informer "was the sole participant, other than the accused, in the transaction charged," and "the only witness in a position to amplify or contradict the testimony of government witnesses," that "under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure." Id. at 64-65. Here, the informant's part in the transaction consisted only of supplying Barni with the detectives' phone number. The remainder and bulk of the pertinent evidence stemmed from the communications between the detectives and Barni and not between the informant and Barni. Moreover, in this case, Barni well knew the identity and address of the informer. Barni requested the court to issue a subpoena requiring the informant be present at the February 17, 1984 hearing. The court issued the subpoena and the Marshals made a reasonable attempt to serve it. Here, where the defendant knew the identity and address of the witness, and had an equal opportunity to secure his presence, Roviaro, the Sixth Amendment and fundamental fairness require no more.
5. At his trial, Barni took the stand in his own defense and testified that he never believe that the substance which he sold to the detectives was a controlled substance. He stated that he had asked a friend who worked at the University Park Medical Center in Hershey to test it, and his friend told him it was phenylalanine, a noncontrolled substance. During the course of his rebuttal argument, the prosecutor commented on Barni's failure to produce his friend to testify. Barni's counsel moved for a mistrial, claiming that the prosecutor committed misconduct when he commented on the absence of the witness. The district court denied the motion, and at the close of the case, gave a general "missing witness" instruction which could be applied to either the failure of the government to produce the informant or Barni's failure to produce his friend from the Hershey laboratory.
6. Barni claims the district court abused its discretion in allowing the government to comment, without an advance ruling, on the failure of Barni to produce his friend from Hershey. He also objects to the general missing witness charge, claiming that the missing witness doctrine cannot be applied to a defense witness without a specific finding of practical and physical unavailability. We find, however, that the district court acted well within its discretion. A prosecutor commits no impropriety when he comments on the failure of the defense to call a particular witness, at least when it cannot be construed as a comment on the failure of the defendant himself to testify. United States v. Keller, 512 F.2d 182, 186 (3d Cir. 1975); United States v. McClain, 469 F.2d 68, 70 (3d Cir. 1972); United States v. Kenny, 462 F.2d 1205, 1228 (3d Cir.), cert. denied, 409 U.S. 914 (1972). Moreover, according to our decisions, no advance ruling is necessary, and even if it were, failure to secure an advance ruling in this case would constitute harmless error. See United States v. Martin, 696 F.2d 49, 51-52 (6th Cir.), cert. denied, 103 S. Ct. 1532 (1983).
7. Similarly, the district court acted properly in giving a general missing witness instruction. Contrary to the appellant's contention, a missing witness instruction may be given when a defense witness, as well as a prosecution witness, fails to testify. Graves v. United States, 150 U.S. 118, 121 (1893) ("The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable."). Particularly considering the form of this instruction, we find no support for Barni's contention that the charge may not be given without a specific finding of unavailability.*fn1
8. Appellant next objects to the district court's failure to suppress the tape recordings of telephone calls and meetings between the detectives and Barni. According of Barni, the state police officers violated both state and federal law when they turned the tapes over to the grand jury and the United States Attorney's Office. We need not address the alleged violations of state law since it "is the general rule that federal district courts will decide evidence questions in federal criminal cases on the basis of federal, rather than state law." United States v. Rickus, 737 F.3d 360, 363 (3d Cir. 1984). Moreover, "evidence obtained in accordance with federal law is admissible in federal court -- even though it was obtained by state officers in violation of state law.". Id. at 363-64.
9. Here, the district court acted in accordance with federal law when it refused to suppress the tapes. Tape recording a conversation to which one party has consented does not violate either the Fourth Amendment, see United States v. White, 401 U.S. 745, 751 (1971), nor the applicable sections of the United States Code. See 18 U.S.C. §§ 2511(c), 2517(3), 2510(6) (1982). Under section 2511(c), it is not unlawful "for a person acting under color of law to intercept a wire or oral communication or one of the parties to the communication has given prior consent to such interception." In addition, to the extent that the disclosure of the taped conversations falls under section 2517, it was authorized by paragraph (3) which states that any
"person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication or evidence with the provisions of this chapter may disclose the contents of that communica- tion or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any court of the United States or of any state or any federal or state grand jury proceeding."
Under federal law, the conversations were legally intercepted and the tapes were clearly admissible.
10. Barni contends that the district court erred when it denied his motion for a judgment of acquittal. He claims the government did not introduce sufficient admissible evidence of conspiracy in its case in chief from which the jury could find beyond a reasonable doubt that the appellant was guilty of a single conspiracy to manufacture, possess with intent to distribute and distribute amphetamine, as charged in the indictment. More specifically, he argues that the district court was not permitted to consider Barni's own statements when it evaluated the sufficiency of the independent evidence of conspiracy for the purpose of determining the admissibility of Barni's co-defendant's statements. Barni misapprehended the laws of evidence and conspiracy, however, when he fashioned this argument.
11. All parties agree that a person may not be convicted solely on the basis of a confession or admission made after the fact, without some independent corroboration of the corpus delicti of the offense and his participation in the offense. See, e.g., Wong Sun v. United States, 371 U.S. 471, 488-89 (1963); Smith v. United States, 348 U.S. 147, 156-57 (1954). But the government need not show corroborative evidence when the statements are made before or during the course of the crime rather than after the fact. Warszower v. United States, 312 U.S. 342, 347 (1941). Here, all Barni's statements which tended to show the existence of a conspiracy were made before the completion of the crime. Accordingly, the district court acted properly when it relied on those statements to determine the independent existence of the conspiracy, both for the purpose of establishing the admissibility of appellant's co-defendant's statements and for establishing that appellant was guilty of the conspiracy charged.
12. The district court likewise did not err when it found that the government had established "the existence of the alleged conspiracy and the connection of each defendant with it by a clear preponderance of the evidence independent of the hearsay declarations," as is required by the Federal Rules of Evidence and the case law. See United States v. Gibbs, 739 F.2d 838, 842-43 (3d Cir. 1984) (in banc); Fed. R. Evid. 801(d)(2)(E). We may only reverse the district court if we conclude that it did not have "reasonable grounds" to make its finding. Gibbs at 843. Here the facts clearly support the district court's finding. According to the record, both Barni and the co-defendant Arlett attended the initial meeting with the detectives. Moreover, the detectives testified that it was Arlett who initiated the conversation, described the quality of the drugs Barni could supply and gave the detectives Barni's telephone number in case they wished to consummate the deal. These statements, admitted only for the purpose of showing Barni's knowledge and intent to participate in an argument, are not hearsay and provided the district court with a reasonable basis for finding that the government had established the existence of the conspiracy by a preponderance of independent evidence. With all of the appellant's and Arlett's statements properly admitted, we cannot say that there was insufficient evidence introduced at trial from which the jury could have concluded, beyond a reasonable doubt, that a conspiracy existed and that appellant was a member of it. We cannot, therefore, overturn the jury's verdict on conspiracy. United States v. United States Gypsum Co., 600 F.2d 414, 416-17 (3d Cir.), cert. denied, 444 U.S. 884 (1979).
13. We can dispose briefly of appellant's final two objections to the disposition below. First, Barni claims that the district court abused its discretion when it permitted an expert witness for the government to give his opinion as to whether the formula Barni told the detectives reflected knowledge on his part of a viable process for producing amphetamine. Under Fed. R. Evid. 702, "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testified thereto in the form of an opinion or otherwise." Here, the expert, Mr. Padden, was undoubtedly qualified, with a Bachelor's degree in Chemistry, a Master's degree in Forensic Science and study in the area of organic synthesis. Padden testified that he had attempted to produce amphetamine in his laboratory using the process described by appellant and had been able to do so by altering the process in minor ways. Since proof that Barni knew a viable means of manufacturing amphetamine corroborates his statements that he made or intended to make amphetamine, this expert testimony was clearly relevant to the charge of conspiracy to manufacture. In addition, laymen would ordinarily be unfamiliar with the process for manufacturing drugs and therefore the district court did not abuse it discretion when it determined that the testimony would be helpful to the jury.
14. Finally, Barni claims that the district court abused its discretion when it made an in camera determination that certain tape recordings subpoenaed by the defense under Fed. R. Crim. Pro. 17(c) were not relevant to the issue of prosecutorial overreaching and therefore need not be produced. We disagree. A defendant may subpoena material in the hands of the government only if the material is relevant and admissible as evidence. Nixon v. United States, 418 U.S. 683, 714 (1974); Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951); United States v. Cuthbertson, 651 F.2d 189, 195 (3d Cir.), cert. denied, 454 U.S. 1056 (1981). The district court's in camera inspection of the evidence revealed that the tapes were neither relevant nor admissible. Having independently listened to the tapes, we agree with district court's conclusion. The court acted properly, therefore, when it refused to enforce the subpoena.
15. Accordingly, the judgment of the district court will be affirmed.