Before: WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Criminal No. 86-00038-01.
Lawrence O. Kuteyi, following a jury trial in the United States District Court for the District of Columbia, was convicted on four counts of conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 (1982); use of a communication facility to commit, cause and facilitate distribution of heroin, in violation of 21 U.S.C. § 843(b) (1982); interstate travel to promote, carry on and facilitate distribution of heroin, in violation of 18 U.S.C. § 1952(a) (1982); and distribution of heroin, in violation of 21 U.S.C. § 841(a) (1982). He was sentenced to twenty years' imprisonment and a fine of $5000 on the conspiracy count, four years and $2500 on the communication facility count, five years and $2500 on the interstate travel count, and twenty years and $7000 on the distribution count, all sentences to be served consecutively. Kuteyi was also sentenced to fifteen years and a fine of $25,000 in another criminal case, No. 86-152, in which he had pleaded guilty to conspiracy to distribute a controlled substance; that sentence, too, was to run consecutively to the others. Finally, Kuteyi was ordered to pay a special assessment of $50 for each count on which he was convicted.
On appeal Kuteyi raises five challenges to his conviction and sentence.
(1) Over the objection of Kuteyi's trial counsel, the District Court allowed the Drug Enforcement Administration's chief investigative agent to sit at counsel table throughout the trial even though he was called as a witness during both the direct and rebuttal stages of the Government's case. Kuteyi claims that this procedure violated Rule 615 of the Federal Rules of Evidence, which provides that the court shall sequester witnesses at the request of a party. The rule makes an exception, however, for "an officer or employee of [a] party which is not a natural person designated as its representative by its attorney." FED. R. EVID. 615(2). The report of the Senate Judiciary Committee makes clear the intent of Congress that this exception apply to government investigative agents. S. REP. NO. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S. CODE CONG. & ADMIN. NEWS 7051, 7072-73; see also FED. R. EVID. 615 advisory committee note. Numerous courts in other circuits have held that it is not error to permit a government agent to sit at counsel table at trial, notwithstanding that he gives testimony in the case, *fn1 and we agree.
(2) Kuteyi raises two claims under the Jencks Act, 18 U.S.C. § 3500 (1982). He urges that the testimony of DEA Special Agent William King should have been struck because the Government failed to supply a transcript of King's testimony at a preliminary hearing in Baltimore, and because King had lost some rough notes which he had taken while on surveillance in the case.
King's testimony at the preliminary hearing had never been transcribed. It was not "in the possession of the United States," 18 U.S.C. 3500(b), but rather in the public domain. As such, the Jencks Act does not require that the Government provide it to the defendant. See e.g., United States v. Cagnina, 697 F.2d 915, 922-23 (11th Cir.), cert. denied, 464 U.S. 856 (1983).
The lost notes, which consisted of about a dozen words jotted on the back of a notebook, were "surveillance notes" rather than notes made in interviewing a potential witness. As such they are distinguishable from the kind of material that this circuit requires government investigators to preserve under United States v. Bryant, 439 F.2d 642, 652 (D.C. Cir. 1971). See United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir. 1979); see also United States v. Harrison, 524 F.2d 421, 428 n.18 (D.C. Cir. 1975). Even if the notes should have been preserved, the District Court's failure to impose sanctions cannot be seen as an abuse of its discretion. See United States v. Gantt, 617 F.2d 831, 841-42 (D.C. Cir. 1980). There was no showing, or even allegation, of bad faith on the part of the agent, and in any case the appellant was not prejudiced since King's testimony concerning his surveillance was directed largely to the activities of Kuteyi's co-defendants.
(3) Kuteyi complains of three aspects of the trial court's jury instruction on the conspiracy count. *fn2 He states first that the court failed to instruct the jury that an overt act must be proved as an element of the conspiracy charge. It is well settled, however, that the statute under which Kuteyi was charged, 21 U.S.C. § 846 -- unlike the general federal conspiracy statute, 18 U.S.C. § 371 (1982) -- does not require the commission of an overt act. E.g., United states v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975) cert. denied, 425 U.S. 970 (1976). Second, Kuteyi complains that the instruction omitted the element that one must join the conspiracy with the specific intent to accomplish its purposes. This allegation is simply false. See Trial Transcript ("Tr.") at 1053-P, 1053-S. Even though the court at several other points stated the elements of conspiracy without mentioning the intent requirement, seen as a whole the instruction adequately informed the jury of the intent required. See United States v. Park, 421 U.S. 658, 674 (1975). Finally, Kuteyi notes that the court twice referred to "the conspiracy" without adding the cautionary phrase, "if such conspiracy existed." This allegation of error is wholly without merit, for the trial judge repeatedly stated the necessity of proving that a conspiracy existed. E.g., Tr. at 1053-T.
(4) The appellant claims that the trial judge committed reversible error by telling the jury In his opening remarks that he had once known of a jury which had made a mistake. This allegation is utterly frivolous. Seen in context, the judge was simply stating his faith in the jury system and urging the jurors to take their responsibilities seriously.
(5) Finally Kuteyi objects to the imposition of consecutive sentences on the four counts as violative of the "rule of lenity." Since with respect to cumulative sentences the constitutional double jeopardy clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended," Missouri v. Hunter, 459 U.S. 359, 366 (1983), "[t]he critical inquiry is whether Congress intended to punish each statutory violation separately." Jeffers v. United States, 432 U.S. 137, 155 (1977) (plurality opinion). In the absence of any more specific indication of congressional intent, we are to presume that Congress intended separate punishment where each statutory provision requires proof of an element not required in the other provision(s). Blockburger v. United States, 284 U.S. 299, 304 (1932); Albernaz v. United States, 450 U.S. 333, 337-42 (1981). In the face of this presumption, mere silence on the part of Congress does not give rise to an ambiguity which would justify application of the rule of statutory construction known as the "rule of lenity." Albernaz, 450 U.S. at 340-43. Here, the four offenses of which the appellant was convicted each contained a separate element. Only the conspiracy count required the existence of a conspiracy. The interstate travel count was the only one requiring proof of travel in interstate commerce. Only the count of unlawful use of a ...