United States v. Hart

526 F.2d 344 | 5th Cir. | 1976

PER CURIAM:

Appellants were convicted by a jury of distribution of cocaine, 21 U.S.C. § 841(a)(1).

Hart complains of alleged errors at the preliminary hearing conducted by a magistrate. Consistent with the spirit of F.R.Cr.P. 5.1 and under our decision in Harris v. U. S., 458 F.2d 670, cert. denied, sub nom., Scott et al. v. U. S., 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972), the magistrate was not required to permit Hart to elicit from the government witness, by cross-examination, the identity of the informer. Arguably Coleman et al., v. Burnett, 155 U.S.App.D.C., 477 F.2d 1187 (1973), is contrary, but it is not wholly consistent with F.R. Cr.P. 5.1(a), and we decline to follow it.

The confrontation clause of the Sixth Amendment was not violated by the magistrate’s refusal to require the DEA agent-witness to produce a written statement of the undercover agent. Harris v. U. S., supra. Here, as in Harris, the appellant [Hart] confronted at trial the person whose statement was sought and had the opportunity to cross-examine him, and did so. The statement itself was clearly Jencks Act material.

Counsel for appellant Hammond has filed a motion asking that he be permitted to withdraw as counsel and also has filed an Anders v. California¹ brief raising a single evidentiary question. The issue is without merit. We have independently examined the entire record and find no reversible error relating to Hammond. The motion of his counsel for leave to withdraw is granted.

The convictions are affirmed.

1 . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).