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
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 ...