United States v. James Douglas Defranco (91-4148) John Renforth (91-4165) Penny Defranco (91-4153) and Raymond Defranco, Sr. (91-4149)

Citation: 30 F.3d 664Docket: 91-4148, 91-4149, 91-4153 and 91-4165

Court: Court of Appeals for the Sixth Circuit; August 18, 1994; Federal Appellate Court

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Defendants James Douglas DeFranco, Penny DeFranco, Raymond DeFranco, Sr., and John Renforth were convicted of narcotics and weapons offenses, leading to their appeals on multiple grounds. The Sixth Circuit Court of Appeals affirmed the district court's decisions on all issues except for the claim by James Douglas DeFranco regarding a violation of the Jencks Act, which mandates disclosure of certain witness statements after their testimony. The court reversed and remanded solely on this issue.

An 18-count indictment was filed against the defendants in April 1991. James Douglas DeFranco faced 11 counts, was acquitted of one count, and found guilty on others, receiving a total sentence of 360 months for Counts 1 and 2, among other concurrent and consecutive sentences. Raymond DeFranco, Sr. was convicted of conspiracy and sentenced to 66 months, while John Renforth was sentenced to 63 months for conspiracy and possession charges. The jury determined Raymond, Sr. was accountable for 500 grams to 5 kilograms of cocaine, while Doug and Penny DeFranco were responsible for over 5 kilograms.

During jury deliberations, defense counsel identified violations of the Jencks Act related to witness Lonnie Culp's testimony, and later discovered a similar violation concerning FBI Special Agent Laukert. The government acknowledged the failures and proposed remedies, including allowing the witnesses to retestify or striking their testimonies from the record. However, defense counsel opted for a mistrial instead.

The court determined that the materials in question constituted Jencks Act materials, but the government's failure to disclose them did not cause 'significant prejudice' to the defendants, leading to a ruling that the violations were harmless. The standard for reviewing district court decisions on Jencks Act issues is abuse of discretion. If the government knowingly withholds Jencks Act materials, the court must either strike the witness's testimony or grant a new trial. However, if the failure to disclose is inadvertent, the court may apply any just remedy. In this case, the trial court found the failure to produce the materials was inadvertent and harmless, thus denying a mistrial. 

While the Supreme Court has acknowledged the appropriateness of 'harmless error' hearings, this case raised the question of whether such a hearing is suitable after the jury has begun deliberations. Previous cases indicated that deliberate misrepresentations by the government negate harmless error analysis, but inadvertent violations discovered during trial can often be remedied without disrupting proceedings. Here, since the jury had begun deliberations, it would be unjust to compel the defense to accept the government's corrective measures. 

The government proposed striking the relevant witness testimonies, which would not further prejudice the defense, and this approach should have been adopted by the judge. The analysis of harmless error, which considered the witness evidence in full, inadequately compensated the defense for the disadvantage caused by the government's error. The judge should have fully stricken the testimony from both jury and court considerations. The defense's choice not to inform the jury to disregard the testimony precluded complaints about the judge's inaction.

On remand, the court will address only Doug DeFranco's conspiracy conviction, determining if sufficient evidence exists to uphold the conviction absent the testimonies of Culp and Laukert. If insufficient evidence is found, a judgment of acquittal should be issued.

Raymond DeFranco, Sr. appeals his conspiracy conviction, arguing the evidence was insufficient to establish the existence of a conspiracy. The court reviews evidence in favor of the government, affirming that if reasonable minds could find guilt, the verdict stands. Numerous witnesses, including an indicted co-conspirator and government agents, testified about the cocaine conspiracy, leading the jurors to disbelieve the defendants and conclude there was sufficient evidence for conviction.

Doug DeFranco and Raymond DeFranco, Sr. contend that considering a sentencing reduction for acceptance of responsibility before all appeals are exhausted is unconstitutional, claiming it hampers their right to appeal. The court counters that denial of a downward adjustment is not a penalty and that contrition is relevant in sentencing, referencing prior rulings that dismissed similar arguments.

Penny DeFranco raises two issues regarding her sentencing. She argues for a minor role reduction, which is at the trial court's discretion and reviewed for clear error. Testimony indicated her involvement in narcotics sales, leading the court to reject her claim of a minor role, despite the government's lack of opposition to a sentence reduction.

Penny also disputes being held responsible for five kilograms of cocaine, which is also reviewed for clear error. Evidence showed she supplied cocaine and was aware of her husband’s actions in the conspiracy. The determination of cocaine amount was additionally supported by a special jury verdict, reinforcing the court’s decision against clear error.

Sentencing decisions regarding Penny DeFranco were upheld, as no clear errors were found. Raymond DeFranco, Sr. raised three key points of error: 

1. He argued for a 4-level sentence reduction due to a minimal role in the offense, but evidence revealed he was significantly involved in cocaine trafficking, denying the claim for further reduction beyond the minor role already granted.
  
2. DeFranco, Sr. claimed indigence to contest a $10,000 fine, yet evidence of his assets undermined this claim, justifying the fine within the Guideline range of $12,000 to $2,000,000.

3. He requested a severance from co-defendants, citing confusion for the jury due to overlapping names. The court's denial was reviewed for abuse of discretion. Although some confusion occurred, it was not shown that this caused substantial prejudice necessitating separate trials, and the judge adequately addressed any clarity issues during the trial.

The case is remanded for further review of James Douglas DeFranco's conspiracy conviction, while all other aspects of the convictions are affirmed.