United States v. Charles R. Gee, Jr.

Gee appeals from his conviction on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 . He contends on appeal that the Government violated Fed.R.Crim.P. 16(a) and the due process clause of the fifth amendment by not providing him with a transcript of a tape-recorded conversation in advance of trial. He also contends that he was prejudiced by his joint trial with two co-defendants who pled guilty after the close of all the evidence. Gee also objects to statements made by the prosecutor in closing arguments and to the use against him of co-conspirator statements which were made before the date that his participation in the conspiracy could be independently established.

FACTS

Gee was tried with two alleged co-conspirators for his role in a conspiracy to distribute cocaine. The two co-conspirators were charged with several substantive offenses. Gee was charged only with conspiracy. The evidence against Gee consisted of two tape-recorded conversations involving Gee, his alleged co-conspirators, and an undercover agent, Officer Kallis, and the trial testimony of Officer Kallis.

The tapes of the recorded conversations were played for defense counsel in the…

695 F.2d 1165 12 Fed. R. Evid. Serv. 419 UNITED STATES of America, Plaintiff-Appellee, v. Charles R. GEE, Jr., Defendant-Appellant. No. 80-1811. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 20, 1981. Reassigned Aug. 31, 1982. Decided Jan. 6, 1983. David B. Bukey, Roberts & Shefelman, Seattle, Wash., for defendant-appellant. Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee. Appeal from the United States District Court for the District of Alaska. Before SKOPIL, FLETCHER, and FARRIS, Circuit Judges. FARRIS, Circuit Judge: 1 Gee appeals from his conviction on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 . He contends on appeal that the Government violated Fed.R.Crim.P. 16(a) and the due process clause of the fifth amendment by not providing him with a transcript of a tape-recorded conversation in advance of trial. He also contends that he was prejudiced by his joint trial with two co-defendants who pled guilty after the close of all the evidence. Gee also objects to statements made by the prosecutor in closing arguments and to the use against him of co-conspirator statements which were made…

concurring:

At appellant’s trial, the Government used a transcript of the tape made by Agent Kallis during his April 25,1980 session with the defendant. Much of the tape was so unclear as to be unintelligible. The transcript represented important information for the defense concerning the Government’s version of the conversation between Gee and Agent Kallis; its significance was independent of the significance of the tape itself. Under these circumstances, if the transcript was in existence at the time that the defendant made his discovery request, production was required, because the transcript was both a “relevant written or recorded statement ] made by the defendant, or cop[y] thereof,” Fed.R.Crim.P. 16(a)(1)(A), and a “document[ ] . .. material to the preparation of [Gee’s] defense,” Fed.R.Crim.P. 16(a)(1)(C), “within the possession, custody or control of the government.”