U.S. v. Davis, 79-5484
| Citation | 639 F.2d 239 |
| Decision Date | 12 March 1981 |
| Docket Number | No. 79-5484,79-5484 |
| Parties | 7 Fed. R. Evid. Serv. 1510 UNITED STATES of America, Plaintiff-Appellee, v. Jake H. DAVIS, Jr., Barry Gene Spence, Lloyd D. Murray and Honorio Montanez, Defendants-Appellants. . Unit B |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Jack P. Friday, Jr., Savannah, Ga., for Barry Gene Spence.
Alvin E. Entin, North Miami Beach, Fla., Michael Lipsky, Miami, Fla., Clyde M. Taylor, Jr., Tallahassee, Fla., Ronald A. Dion, North Miami, Fla., for Lloyd D. Murray and Honorio Montanez.
William T. Moore, Jr., U. S. Atty., Melissa S. Mundell, David Roberson and William H. McAbee, II, Asst. U. S. Attys., Savannah, Ga., for the U. S.
Appeals from the United States District Court for the Southern District of Georgia.
Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges, and ALLGOOD *, District Judge.
This is an appeal from convictions for conspiring to possess with intent to distribute and for possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The following points of error are urged: (1) that the appellants were improperly denied the right to call witnesses as guaranteed by the compulsory process clause of the sixth amendment; (2) that hearsay evidence was improperly admitted; (3) that death threat testimony was improperly admitted; (4) that appellant's character was improperly allowed into evidence through proof of other crimes or bad acts; (5) that the appellants were deprived of the right to a fair trial because of improper comments by the prosecutors, because some of the appellants were not allowed to make an opening statement and some of the closing arguments were restricted, and because of improper comments by prospective jurors in the presence of the jury panel; (6) that appellants' motion to suppress the marijuana seized in this case was improperly denied; and (7) that appellants' motion for judgment of acquittal on the possession charge was improperly denied. Our review of the record persuades us that the district court erred in denying the appellants the right to call witnesses. Because we cannot find that error harmless beyond a reasonable doubt, we reverse the convictions below and remand the case to the district court for a new trial.
Our disposition of this case makes it unnecessary to address any of the remaining alleged trial errors. We do, however, address the issue of the denial of the appellant's motion to suppress the marijuana seized in this case. The claim that the motion to suppress was improperly denied is meritless because some of the marijuana was on a commercial dock in plain view. The motion to suppress was properly denied.
FACTS:
On July 9, 1979, the appellants and others were brought to trial pursuant to a two-count indictment charging them with conspiracy to possess and possession with intent to distribute some 40,559 pounds of marijuana. All appellants 1 were found guilty on both counts with the exception of Montanez who was convicted on the conspiracy count but was acquitted on the substantive count.
At the trial the prosecution relied heavily on the testimony of a confidential informant, Joseph May Wooten. Wooten had been arrested in Virginia on July 27, 1978, for possession with intent to distribute approximately fifty pounds of marijuana. As a result of that arrest, Wooten offered his cooperation to the Drug Enforcement Administration (DEA) in exchange for his case being nol-prossed. Wooten agreed to act as an undercover informant within the Southern District of Georgia. It was Wooten who first alerted authorities to the existence of the conspiracy that is the focus of this prosecution and who provided law enforcement officers with continuing information throughout its course that led ultimately to the arrest of the appellants. At the trial Wooten testified in some detail about the conspiracy and the marijuana off-loading operation which was its goal. He also testified that he had previously been convicted of felonies and that his cooperation with the government in this case stemmed from his arrest on drug distribution charges.
On cross-examination, counsel for the appellants were able to achieve some impeachment of Wooten by eliciting testimony from him concerning his prior convictions and his motive for cooperating with the government, and by apparent inconsistencies in his testimony. However, appellants' counsel were not allowed to impeach Wooten by presenting two character witnesses who were prepared to testify that his reputation for truth and veracity in the community was poor and that, in their opinion, he was not worthy of belief.
The district court excluded these two witnesses on two grounds: (1) the names of the witnesses were not on the witness list provided to the government pursuant to the court's pretrial discovery order, and (2) the testimony of the witnesses would be merely cumulative and impeaching. The appellants argued at trial that to the extent that the court's pretrial discovery order had indeed been violated, 2 the violation was unavoidable since nothing was known about Wooten's background and work history until he testified. The witnesses could not have been included on the witness list until they had been identified and located as a result of Wooten's testimony during trial. Appellants also contend that the exclusion of the witnesses violated their sixth amendment right to call witnesses on their behalf since the government's case depended on Wooten's testimony and their defense would necessarily depend on discrediting Wooten.
The appellants press the argument on appeal that the sixth amendment guarantees their right to call witnesses on their behalf, including the impeaching character witnesses at issue here. Appellants further contend that since the noncompliance, if any, with the pretrial discovery order was innocent and unavoidable and the witnesses were crucial to their defense, the district court's exclusion of their testimony as a sanction for noncompliance with the order was error. It is appellants' position that since that error resulted in the denial of a constitutionally protected right, the resulting convictions can be upheld only if the error was harmless beyond a reasonable doubt.
In response, the government argues that a trial court has wide latitude in limiting the amount of character evidence to be presented during a trial, and in imposing sanctions for failure to comply with pretrial discovery orders. Characterizing the district court's ruling excluding the witnesses as one limiting the admission of merely cumulative character evidence, the government contends that this court can reverse only upon a showing that the trial court's discretion was abused. The government also argues that errors in the administration of criminal discovery rules, including the imposition of sanctions such as the exclusion of evidence, are reversible only upon a showing of abuse of discretion and prejudice to the appellants.
It is in these postures that the litigants approach this court. We are presented with an apparent conflict between the latitude granted to a trial judge under the Federal Rules of Evidence and the Federal Rules of Criminal Procedure and the basic rights guaranteed to criminal defendants by the sixth amendment to the Constitution of the United States.
In express terms the Federal Rules of Criminal Procedure authorize the trial court to impose sanctions, including the exclusion of evidence, against either party for failure to comply with a rule governing pretrial discovery. Fed.R.Crim.P. 16(d)(2). Despite the unequivocal language of Rule 16, however, serious questions have been raised concerning the constitutionality of such sanctions as applied to criminal defendants: Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 466 (1970) (citations omitted). See 1 C. Wright, Federal Practice and Procedure: Criminal § 256 (Supp.1979). Such a question is raised by this appeal.
Cases which involve a defendant's sixth amendment right when a rule of sequestration has been violated by a witness are helpful in resolving the issue in this case. In Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), the Supreme Court established the rule governing the imposition of sanctions against criminal defendants for noncompliance with witness sequestration orders:
If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of the authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.
150 U.S. at 92, 14 S.Ct. at 10.
In Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972), this court expanded upon the Holder rule, holding that the exclusion of a defense witness by the State of Florida as a sanction for that witness' noncompliance with the court's sequestration order violated the compulsory process clause of the sixth amendment, and that the defendant's invocation of the sequestration order did not constitute a waiver of his sixth amendment rights. 463 F.2d at 1154. The Braswell panel reiterated the Supreme Court's holding that exclusion might be proper under "particular circumstances":
(W)e think that only where some overriding policy consideration is shown for the exclusion of a witness or where it can be shown that the defendant made a Johnston v. Zerbst waiver of his sixth amendment right can a trial court...
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