647 F.2d 957 (9th Cir. 1981), 80-1369, United States v. Ellsworth

Docket Nº:80-1369.
Citation:647 F.2d 957
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phillip John ELLSWORTH, Defendant-Appellant.
Case Date:June 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 957

647 F.2d 957 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Phillip John ELLSWORTH, Defendant-Appellant.

No. 80-1369.

United States Court of Appeals, Ninth Circuit

June 8, 1981

Argued and Submitted Feb. 5, 1981.

As Amended Sept. 15, 1981.

Page 958

Lawrence J. Kulik, Kulik & Suddock, Anchorage, Alaska, for defendant-appellant.

Dan Dennis, Asst. U. S. Atty., Anchorage, Alaska, argued for plaintiff-appellee; Nelson Cohen, Asst. U. S. Atty., Anchorage, Alaska, on brief.

Appeal from the United States District Court for the District of Alaska.

Before BROWNING, Chief Judge, TANG, Circuit Judge and HEMPHILL, [*] District Judge.

HEMPHILL, District Judge:

Appellant appeals from the final judgment of the district court, entered May 23, 1980, after a jury finding of guilt March 14, 1980. The superseding indictment was lodged with the Court October 23, 1979, upon the finding of a true bill by the Grand Jury, and charged:

That on or about the 15th day of October, 1979, Anchorage, Alaska, in the District of Alaska, PHILLIP JOHN ELLSWORTH, unlawfully, wilfully and by means of a dangerous weapon, that is, a pair of black leather type gloves weighted in the areas of the knuckles, did forcibly assault, resist, oppose, impede, intimidate and interfere with Jerry Lee Cox, a Petroleum Engineer Technician of the Conservation Division of the United States Geological Service of the Department of the Interior, while he was engaged in the performance of his official duties, all in violation of Title 18, United States Code, Section 111 1 and 1114. 2

Appellant was sentenced to the custody of the Attorney General, or his authorized representative, for a period of three (3) years. He presents five issues for review by this court, seriatim.

SALIENT FACTS

On October 15, 1979 the victim in this case, Jerry Lee Cox, was employed by the United States Geological Survey (USGS) of the Department of the Interior of the United States as a Petroleum Engineer Technician. His duties included inspections to enforce safety and environmental regulations concerning oil rig drilling apparatus and

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operations that called for observation and testing of casing, cement, and plug and abandonment operations. If regulations were violated, he had authority to shut down the operation. The well in question had been shut down by a workers' strike, and inspection was required before operations could resume. Pursuant to a request by the oil company conducting operations, Cox's supervisor, Louis Dale Roberts, instructed him to travel on October 15, 1979, to the National Petroleum Reserve of Alaska on the North Slope of Alaska to inspect test well No. 1, Rig 25. According to Cox, Roberts, and their department regulations, Cox was on duty on the job when he left his house to travel to the airport, where he was to enplane for the North Slope.

At about 6:00 A.M. that day a large gathering had collected in the parking lot of Great Northern Air terminal at Anchorage. Some carried picket signs. Those inside the terminal had crossed the picket line to fly north to work causing expectations that something would happen. Two men in the terminal "stood out" from the rest in that they had no luggage, no arctic gear and did not check in at the counter. One of them wore black leather gloves inside the terminal and repeatedly slammed his gloves together. He was the larger of the two and comparably larger than almost anyone else there at the time.

Cox arrived at the terminal, checked his bags, and went to the coffee machine where he poured a cup. While standing there with the cup in one hand and his parka in the other, he was struck on the left side of his face. The assailant was heard to say "You goddam scabs are going to take away all our jobs." The attack was completely unprovoked.

The United States presented eyewitness testimony, physical evidence and an admission by the defendant to prove identity. 3 It never stipulated to Ellsworth's identity as the attacker although the defense offered such a stipulation. Cox testified the attacker was a large man, over 6 feet 2 inches tall, 220 pounds in weight, wearing a dark jacket and dark gloves. He pointed to Ellsworth at trial as the person he believed to have struck him. Additionally, William L. Hess, who was also enroute to NPRA to work on Rig 25 as a roughneck, saw the unprovoked attack. In open court he identified Ellsworth as the man who struck Cox.

FBI agents interviewed Roy L. Waldrop and showed him a group of photographs; based on his recollection of the assault, he chose, although he couldn't be sure about it, a picture of Ellsworth as being the attacker, and this was admitted without objection. In addition to these in-court photographic identifications of Ellsworth as Cox's attacker, the jury viewed a T-shirt with the words "Satisfaction Guaranteed" on the front in glittering letters, which was allegedly worn by the attacker and later found pursuant to a search authorized by warrant at Ellsworth's house. That search also produced a pair of black leather gloves weighted in the knuckles and found in Ellsworth's bedroom. Those were admitted without objection. Other dark color gloves were also found there. Cox's attacker was described to have worn gloves by witnesses Nanini, Hess, Waldrop, and Smalley.

I

WAS APPELLANT'S RIGHT TO DUE PROCESS OF LAW VIOLATED BY THE

MANNER IN WHICH FOUR STATEMENTS OF POTENTIAL

WITNESSES WERE PRODUCED TO APPELLANT'S COUNSEL?

On February 29, 1980, Ellsworth filed requests for exculpatory evidence. The United States responded March 3 by acknowledging its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), but opposing delivery of Brady materials, if any there were, until trial. The opposition was based in part upon the stated desire to protect anticipated government witnesses who had expressed grave concern for their safety and feared reprisals. The

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United States further responded that it would produce Brady materials, if any there were, and that it did not consider minor discrepancies in eyewitnesses' descriptions to be Brady material, and that it possessed no exculpatory evidence tending to show that Ellsworth did not commit the attack. In an Order dated March 6, 1980, the pretrial magistrate instructed the United States to comply with the following Brady requests by producing any such evidence at trial:

1. any and all statements or evidence of statements, hearsay or otherwise, which describe or identify defendant Phillip Ellsworth in any manner inconsistent with Ellsworth's actual description and identification;

2. any statements or evidence of statements which describe or identify defendant Phillip Ellsworth in a manner that is inconsistent with each other;

3. any statements which describe the gloves worn by Cox's alleged assailant in any manner other than as "weighted gloves" or "sap gloves" or any other such expression which denotes or connotes that the assailant's gloves were extraordinary in design or designed to be used as a weapon;

4. any statements by any witnesses describing any T-shirt worn by the alleged assailant which descriptions are either

(a) inconsistent with each other; or

(b) inconsistent with the T-shirt seized at Mr. Ellsworth's home by Special Agents of the FBI on or about October 24, 1979.

The magistrate's Order also required the United States to disclose immediately the Brady material requested by Ellsworth in request No. 5 which reads:

5. any evidence, whether statements of witnesses or otherwise, indicating or suggesting that Mr. Jerry Lee Cox was struck by anyone other than defendant Phillip Ellsworth on October 15, 1979; this request is intended to include evidence that anyone in addition to Mr. Ellsworth struck Mr. Cox.

The United States produced no evidence indicating that Cox was struck by anyone other than or in addition to Ellsworth and maintained that it had no such evidence.

On March 12, 1980, prior 4 to the making of opening statements by either party, Assistant United States Attorney Nelson P. Cohen delivered to defense counsel John Suddock, at defense counsel's table in the Courtroom, copies of the statements of Dora Holmes, Mary Hicks, Michael Nichols and Ed Parsons.

After trial, Dora Holmes was re-interviewed by an FBI agent. She was shown a photographic spread out of which she chose Ellsworth as the person she saw hit Cox on October 15, 1979. She stated: "That's him. I am sure that is definitely him". In her affidavit she had stated that 1) two men came into the terminal, one larger than the other; and 2) the larger man was dressed in a dark leather jacket, gloves and heavy boots, and went over near the coffee machine and struck Cox.

In a post-trial interview of Mary Hicks, she stated that she saw two big men come into the terminal; the large man, wearing black leather gloves and a black leather jacket, struck Cox.

During preparation for trial an interview of Michael Nichols was conducted by FBI agents, in which he was unable to pick Ellsworth out of a photographic line-up. In a post-trial affidavit, Nichols stated: "My location during the assault was such that I did not have a full face view of the assailant. I saw his face from an angle for a fraction of a second during the assault."

Ed Parsons, a 73 year old man, gave a statement after the incident that the man who struck Cox was over seven feet tall. Parsons was unable to describe any clothing and did not pick Ellsworth from a photo spread. He was sitting near Nichols at the time of the attack.

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This Court's consideration of the conduct of counsel for the government, in this and every case, attends the guidelines espoused by the United States Supreme Court:

The United States attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to...

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