Appeal from a judgment of the United States District Court for the Western District of New York after a jury trial before John T. Elfvin, Judge, convicting defendant of conspiracy to possess and distribute counterfeit money, in violation of 18 U.S.C. § 371; cross-appeal by the United States from an order, 597 F. Supp. 1228 (1984), vacating the jury's verdict finding defendant guilty of tampering with a witness, in violation of 18 U.S.C. § 1512. Affirmed.
Mansfield, Kearse, and Pratt, Circuit Judges.
Defendant Jerry L. King appeals from a judgment of the United States District Court for the Western District of New York entered after a jury trial before John T. Elfvin, Judge, in Buffalo, New York, convicting him of conspiring to possess and distribute counterfeit money in violation of 18 U.S.C. § 371 (1982). King contends that he should be granted a new trial because the district court erroneously denied him the right to review the transcript of certain testimony before the grand jury that indicted him and improperly refused to grant a continuance to permit him to bring a favorable witness to the trial. The government cross-appeals, challenging an order of Judge Elfvin that vacated the jury's verdict against King on a charge of tampering with a witness in violation of 18 U.S.C. § 1512 (1982) on the ground that the facts proven by the government were not within the scope of § 1512. For the reasons below, we affirm the judgment and order of the district court.
King was charged in an April 1984 indictment on one count of conspiring to deal in and utter counterfeit money, in violation of 18 U.S.C. § 371; two counts of transferring counterfeit money, in violation of 18 U.S.C. § 473 (1982); and one count of misleading a witness, in violation of 18 U.S.C. § 1512. On July 23, 1984, jury selection was scheduled for August 28, 1984, and thereafter commencement of trial was scheduled for October 1, 1984.
During the course of the investigation of the events that led to the indictment, King's brother, Dennis King ("Dennis"), had appeared as a witness before the grand jury and testified that King was not a knowing participant in the counterfeit currency transactions. After King was indicted, the substance of Dennis's exculpatory testimony was communicated by the Assistant United States Attorney to King's attorney on two occasions: first to King's original attorney in May 1984, four days after King's arraignment, and then to King's newly substituted trial counsel on August 1, 1984. By the time of King's trial, Dennis was incarcerated in federal prison at Lewisburg, Pennsylvania.
On September 27, 1984, two court-days before the scheduled start of trial, King moved for the disclosure of Dennis's grand jury testimony and for a two or three week adjournment of the trial date. King's counsel stated that he wanted to review Dennis's grand jury testimony because he had been informed by Dennis's attorney that that testimony was exculpatory of King. The government pointed out that King's attorneys had previously been advised by the government of the exculpatory nature of Dennis's testimony, and it opposed King's motion for production of the grand jury transcript on the ground that it believed that Dennis's testimony had been perjurious and it did not wish to facilitate the continuation of his fabrications. The district court reviewed Dennis's grand jury testimony in camera, informed King that Dennis had testified that King was not a knowing participant in the counterfeit currency transactions, noted that Dennis had long been available to King for purposes of consultation, and denied the motion for production of the grand jury transcript.
The grounds advanced for King's requested adjournment were (1) that King had become aware of certain "new leads" that might lead to exculpatory evidence, and (2) that King wanted his brother, Dennis, "to be present or at least available at trial." The U.S. Marshals Office had advised King that it would require approximately two weeks' notice to obtain approval for Dennis to be brought from Lewisburg to the trial in Buffalo. The court was unpersuaded by King's proffered reason for not having discovered his new leads earlier, and no reason was offered for King's not having moved earlier to have Dennis brought to trial. King's counsel admitted that Dennis had not been unavailable for consultation. The court denied the motion for an adjournment. King did not ask the court to have Dennis produced on an expedited basis.
At trial, the jury found King guilty on the conspiracy count and the witness tampering count, and acquitted him on the two counts of charging him with transfers of counterfeit money. Judge Elfvin vacated the guilty verdict on the witness tampering count, finding that the facts proven by the government, which we discuss in Part II.B below, did not bring King's actions within § 1512. King was sentenced to imprisonment for one year and one day on the conspiracy count. This appeal and the cross-appeal followed.
King contends that the district court abused its discretion in denying his motion for a continuance to permit Dennis to be brought to testify and in refusing to grant him access to the grand jury transcript. We find no merit in these contentions.
A motion for an adjournment of the scheduled start of trial is addressed to the sound discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964); Avery v. Alabama, 308 U.S. 444, 450, 84 L. Ed. 377, 60 S. Ct. 321 (1940); United States v. Cicale, 691 F.2d 95, 106 (2d Cir. 1982), cert. denied, 460 U.S. 1082, 76 L. Ed. 2d 344, 103 S. Ct. 1771 (1983). To show abuse of that discretion, the defendant must demonstrate that the court's denial of a continuance was arbitrary and substantially impaired his defense. United States v. Bein, 728 F.2d 107, 114 (2d Cir.), cert. denied, 469 U.S. 837, 105 S. ...