Appeal from a judgment of conviction and order denying a new trial of the Southern District of New York, Honorable Richard Owen, Judge, entered after a jury trial convicting appellant of distributing approximately one-eighth kilogram of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Affirmed.
Before Moore, Oakes and Gurfein, Circuit Judges.
Mack Brown, Jr. appeals from a judgment of conviction entered on December 2, 1977, after a jury trial, of distributing approximately one-eighth kilogram of heroin on February 24, 1976 in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Brown also appeals from an order, entered on the same date, denying his motion for a new trial on the basis of newly discovered evidence. Brown was sentenced to eight years imprisonment and a three-year parole term and is presently serving his sentence.
On appeal Brown makes several contentions the principal ones being a failure to disclose certain alleged Brady material, an improper marshalling of the evidence by the trial court, an improper use of an Allen -type charge to the jury, and a refusal to hold a hearing on the motion for a new trial. For reasons set forth below, we affirm.
From the evidence presented, the jury could have found the following: At a February, 1976 meeting in a hospital room, Leslie Maize, a government informant, agreed to purchase one-eighth kilogram of heroin (valued at approximately $5000) from Brown and one Henry Simmons. The sale was scheduled for February 24, 1976. On that date Drug Enforcement Administration ("DEA") agent Carl Gordon drove Maize in Maize's car to the vicinity of 145th Street and 8th Avenue in Manhattan. Maize then met with Brown alone in Brown's late-model Lincoln Continental. Maize returned to Gordon and told him that Brown and Maize were going to the Bronx to pick up a heroin package and that Gordon should wait for their return. Agent Stuart Stromfeld followed Maize and Brown to the 145th Street Bridge, but lost them as they crossed into the Bronx. Approximately 11/2 hours later Maize and Brown were observed re-entering Manhattan.
As a result of a conversation between Maize and agent Gordon, surveillance agents were directed to the Goldbrick Inn where the transaction was to occur. At approximately 8:45 P.M., Brown arrived at and entered the Goldbrick Inn. Maize and agent Gordon then arrived; Maize entered the bar and met Brown where they could be seen through the window by surveillance agents. Maize then left the bar and rejoined agent Gordon, handing him a package containing approximately one-eighth kilogram of heroin. Agent Gordon gave Maize $4800 and Maize re-entered the bar. Shortly thereafter Maize returned to agent Gordon and reported that Brown had counted the money and it was short $200. Agent Gordon gave Maize the $200, then followed Maize as he went back to the bar. Agent Gordon stopped at the front window and saw Maize hand something to Brown, using the same hand with which Maize had taken the $200 from Gordon. Gordon then walked inside, and he saw Brown walk immediately to the rear of the bar. A few minutes later Brown walked by to make a phone call, and Maize then left the bar with agent Gordon.
On March 15, 1977 Brown was arrested.
About two weeks prior to the trial, Maize began to vacillate as to whether he would testify. On September 13, 1977 Maize affirmed his earlier contemporaneous statement that Brown had given him heroin on February 24, 1976, but Maize stated to the prosecutor that he would not testify. Maize gave two reasons: First, Maize was angry with DEA agents for what he claimed was their failure to fully inform the state court judge of the extent of his cooperation.*fn1 Second, Maize expressed concern for his safety and the safety of his family if he testified.
On September 19, 1977 Maize again told the prosecutor that he would not testify. This time he threatened to "sabotage" the case by either asserting a right not to testify, saying he "entrapped" Brown, or simply failing to remember what had happened. On September 23, 1977 Maize met with the prosecutor again and said that if called as a witness, he would state he was given the package by someone else, not Brown, in the Goldbrick Inn.
The trial began on September 26, 1977. After opening statements by counsel, the Government advised the trial court and defense counsel that Maize had indicated an unwillingness to testify. The court directed Maize's appearance and the following morning, Maize was called to the stand. Maize told the court:
"I am not taking the stand, your Honor. I don't wish to testify. As I told the defense, I gave a false statement and I don't wish to testify, and I would like to get a lawyer." Trans. 65-2.
The Government applied for an order of immunity, pursuant to 18 U.S.C. §§ 6002-03, and the order was granted. Maize refused to comply with the court's order to be sworn and was found in criminal ...