U.S. v. Millet

• Decision Date: 14 September 1977
• Docket Number: No. 76-3783,76-3783
• Citation: 559 F.2d 253
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lester J. MILLET, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 253

559 F.2d 253

UNITED STATES of America, Plaintiff-Appellee, v. Lester J. MILLET, Jr., Defendant-Appellant.

No. 76-3783.

United States Court of Appeals, Fifth Circuit.

Sept. 14, 1977.

Julian R. Murray, Jr., New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Walter J. Rothschild, Cornelius R. Heusel, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD, ^* District Judge.

FAY, Circuit Judge:

Lester J. Millet, appellant, is a former sheriff and tax assessor of St. John the Baptist Parish, Louisiana. On March 11, 1976, the Grand Jury returned a six-count indictment charging appellant with extortion in violation of the Hobbs Act, Title 18, United States Code, Section 1951. Defendant Millet entered a plea of not guilty as to all counts on March 24, 1976.

Pre-trial motions included a motion for speedy trial and a motion for discovery and inspection. The court held the speedy trial motion moot because a trial date had been set for Monday, June 28, 1976. With respect to the motion for discovery and inspection, the Government and the defense at a pre-trial hearing before the Magistrate reached an agreement as to what would be turned over to the defense.

On June 22, 1976, six calendar and three working days before trial, the Grand Jury returned a seven-count superceding indictment. The superceding indictment additionally charged the defendant with attempted extortion in all of the former counts as well as one new substantive count. The court denied a defense motion to dismiss the superceding indictment.

The trial began on June 28, 1976 and continued into the third week. The jury returned the following verdict: Guilty as to Counts II, III, IV and V; Not Guilty as to Counts I and VI. The court declared a mistrial as to Count VII because the jury was unable to reach a verdict on that count. Subsequently, the court sentenced the defendant to six months imprisonment on Count II, suspended the sentences as to Counts III, IV and V, and imposed a three year period of probation following the defendant's release from custody. From the judgment and sentence as to Count II, the defendant brings this appeal. ¹ We affirm.

I

The appellant assigns four grounds of error, the first of which is appellant's contention that the trial court incorrectly denied appellant's motion for new trial after the Government failed to comply with its pre-trial discovery agreement. Prior to the trial, defendant filed a group of standard discovery motions including a request for a copy of the Grand Jury testimony of all witnesses favorable to the defendant, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant further requested that the desired evidence be made available to the defense prior to trial because of the complex nature of the case and that any problems with the materiality or exculpatory nature of the evidence be resolved by the court in camera. The Government's written answer to the defense motion asserted that it had no Brady material in its possession. The matter came before the Magistrate at a pre-trial hearing at which time counsel for the Defendant asserted that the motion was a bit unique from the "standard type of Brady motion" in that he was specifically requesting access to the Grand Jury testimony of witnesses who were not to be called at trial. (In accordance with the Jencks Act, 18 U.S.C. § 3500, the Government already consented to give copies of the testimony of all Grand Jury witnesses the Government intended to call at trial.) The Magistrate's response was that rather than conduct an extensive in camera inspection for possible Brady material, the Government might turn over the transcripts in question to the defense to allow it to conduct the perusal. To this suggestion the prosecutor responded:

As to Brady material, as to determining what is Brady material, I don't believe that it's the Government's position in this or any other case, that we should be required to produce everything that the Grand Jury has heard. But I think a reasonable alternative might be that on these counts on which the Defendant is charged, that the Government would offer to turn over at least in advance now, a list of all the witnesses who were called before the Grand Jury on the counts charged in the indictment and that at a reasonable time prior to trial, preferably at the time of presenting Jencks Act, we would make that, the testimony of all those witnesses available, both Jencks Act material and the other witnesses who may or may not be witnesses at trial.

The essence of the agreement, then, was that the Government would give the defendant first a list and then the full testimony of all the witnesses who appeared before the Grand Jury and testified regarding the various counts in the indictment. The Government agreed that a reasonable time for producing copies of these witnesses' testimony would be 5 P.M., Thursday, June 24.

Appellant contended then, and contends now, that the material the Government delivered on June 24 failed to include the testimony of "numerous" Grand Jury witnesses. ² Appellant notified the Government the next day that it did not consider the Government to have complied with its pre-trial agreement. The defense did not raise the matter prior to or during the trial purportedly because, without a transcript of the Magistrate's hearing, appellant's counsel was not absolutely certain that his recollection of the extent of the agreement was correct. After the trial was completed, appellant raised this issue before the district court in a motion for a new trial, contending that it was prejudiced by the Government's non-compliance. ³

Defense counsel also filed a motion for issuance of a subpoena duces tecum in order to review the undisclosed testimony prior to the hearing on his motion for a new trial. The Government filed a motion to quash the subpoena duces tecum, contending that it had fully complied with the pre-trial requirements of Brady and Jencks, supra, and that compliance with the subpoena may interfere with a continuing investigation of appellant on matters other than those involved in the indictment and about people other than appellant.

The district judge reviewed in camera the Grand Jury testimony requested by appellant which was not furnished by the Government. This included testimony of approximately 50 witnesses. Finding that the undisclosed Grand Jury testimony would not have affected the judgment of the jury or the outcome of the trial on the question of guilt or on the issue of punishment, the district court denied appellant's motion for new trial and granted the Government's motion to quash the subpoena duces tecum.

Appellant maintains in this appeal that he had relied upon the pretrial agreement made by the Government, as noted above, and that the Government should not be allowed to breach said agreement with impunity. Appellant contends that such a breach denied him due process of law.

The record in this case reveals that the court below reviewed the materials in camera and took no action favorable to the defendant, implying that the district court found no breach. The appellant respectfully suggests that the district court focused on the wrong issue, namely compliance with Brady requirements rather than a pre-trial agreement voluntarily made by the Government.

At this point of the proceedings we find appellant's non-compliance argument to be without merit. Unequivocably, the Government has the obligation to fully comply with any and all agreements and promises it makes with and to defendants and we would interpret any non-compliance as a serious breach of the Government's duty, as well as a possible violation of a defendant's constitutional due process rights. ⁴ However, under the facts of the instant case, we need not decide whether the Government breached its agreement because we find that appellant waived his right to complain about any possible non-compliance on the part of the Government.

The alleged agreement was made eight weeks before trial. The material was supposed to be delivered the Thursday before trial began. Defense counsel knew at least by Friday before the trial started that the Government had not complied with the agreement, if that were correct. The defense did not file a motion for continuance nor request the trial judge prior to trial to consider the matter. Neither did the defense offer any objection, indication or remark to the trial judge during the Government's case regarding the Government's purported non-compliance. There was no request for an adjournment or short recess after the Government's case in an attempt to use the material or obtain witnesses for the defendant. Defendant made no motion, no objection he did nothing, until the trial was over and the jury had convicted him. During almost three weeks of trial and several days prior to trial, appellant had ample opportunity to assert his claim. Although appellant asserts prejudice, he has made no showing that he suffered as a result of any non-disclosure of all grand jury transcripts. This Court is of the opinion that raising this issue by way of a post-trial motion was so untimely as to amount to a waiver. See United States v. Urdiales, 523 F.2d...