U.S. v. Atisha

• Decision Date: 30 October 1986
• Docket Number: 85-1775,Nos. 85-1537,s. 85-1537
• Parties: 21 Fed. R. Evid. Serv. 1244 UNITED STATES of America, Plaintiff-Appellee, v. Najib Mansour ATISHA (85-1537), Michael Covintgon (85-1775), Defendants- Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 920

804 F.2d 920

21 Fed. R. Evid. Serv. 1244

UNITED STATES of America, Plaintiff-Appellee, v. Najib Mansour ATISHA (85-1537), Michael Covintgon (85-1775),

Defendants- Appellants.

Nos. 85-1537, 85-1775.

United States Court of Appeals,

Sixth Circuit.

Argued Sept. 23, 1986.

Decided Oct. 30, 1986.

Charles R. Scales, Detroit, Mich., for Covington.

N.C. DeDay LaRene, Detroit, Mich., for Atisha.

John N. Thompson, Jr., Asst. U.S. Atty., Detroit, Mich., Patricia G. Blake (argued), for U.S.

Before LIVELY, Chief Judge, MERRITT, Circuit Judge, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Michael Covington and Najib Mansour Atisha appeal from their convictions for conspiring to steal goods from interstate commerce in violation of 18 U.S.C. Sec. 371. ¹ Atisha also appeals from his conviction for possessing goods stolen from interstate commerce in violation of 18 U.S.C. Sec. 659. ²

I.

The indictment charged that, between January 1981 and March 1982, defendants Covington and Atisha, and others, were involved in a conspiracy to hijack tractor-trailers filled with goods, to store the goods for a short period of time and then to convert the goods to their own use. The key actor in the conspiracy was a man named John Ranzoni. The indictment alleged in part:

It was part of said unlawful conspiracy that JOHN RANZONI, would use his contacts through a roofing business which he conducted to arrange said thefts from interstate shipments.

It was further part of said unlawful conspiracy that JOHN RANZONI would use employees of his business to conduct said thefts; and that other contacts which he had made during the course of said roofing business would be contacted to receive and/or "fence" said stolen goods and chattels.

The only overt acts in furtherance of the conspiracy enumerated in the indictment were the hijackings of one truckload of chickens and one truckload of dry goods. It further was alleged that defendant Covington was involved in the actual truck hijackings, whereas defendant Atisha had agreed to purchase a portion of the stolen goods. Although indictments were issued in November of 1982 and January of 1984, these were dismissed by the government. The final indictment was issued on October 30, 1984, with a superseding indictment being issued on March 28, 1985 to correct technical errors.

The jury trial began on April 8, 1985 for defendants Covington and Atisha, and another coconspirator, Dimitrius Kyriazakos. At trial, the government produced evidence of a third hijacking of a truckload of beef whose contents were unloaded at Atisha's place of business. Atisha was convicted on both the conspiracy count and the possession of stolen goods count. ³ He was sentenced on June 14, 1985 to five-years confinement on each count, the prison terms to run concurrently, and was fined a total of $10,000. The jury was not able to reach a jury verdict with respect to Kyriazakos or defendant Covington. Covington was retried before a jury on June 3, 1985, convicted of conspiracy in violation of 18 U.S.C. Sec. 371 and he was sentenced to five-years confinement on September 6, 1985. ⁴

On appeal, Atisha asserts that he was denied a fair trial when testimony relating to the beef hijacking scam was admitted into evidence. Specifically, Atisha asserts that the government violated its "open file" policy and that the new evidence constituted a constructive amendment to, or prejudicial variance of, the indictment. Under either theory, Atisha argues that the district court abused its discretion in denying his motion for a mistrial due to the severe prejudice he experienced. Defendant Covington asserts on appeal that the lengthy pre-indictment delay violated his Fifth Amendment right to due process and that the post-arrest delay violated his Sixth Amendment right to a speedy trial. Covington also asserts that he was denied a fair trial when the trial court limited his cross-examination of the government's key witness. For the reasons which follow, we affirm each conviction.

II.

By maintaining an "open file" policy, the United States Attorney permitted the defendants' counsel full access to the evidence which the government intended to put forth as well as the theories upon which it intended to rely. On the second day of Atisha's trial, however, the United States Attorney, for the first time, expressed his intention to elicit testimony relating to the hijacking of a truckload of beef, an offense which was not specifically enumerated in the indictment as being one of the overt acts in furtherance of the conspiracy. The government's attorney announced that he had just recently learned of this theft, its relevance to the conspiracy charge and the willingness of both Dwight Benning and Wayne Smith to testify about this theft. ⁵ Each defendants' counsel objected to the admission of this evidence and moved for a mistrial. ⁶ Although Atisha argued that having relied on the government's open file policy he was prejudiced by the introduction of the new evidence, and that the admission of the evidence constituted a variance of or a constructive amendment to the indictment, the district court disagreed, ruling that the evidence was admissible to prove a conspiracy, or as "other acts" evidence under Fed.R.Evid. 404(b), ⁷ and reasoned that a mistrial was not warranted.

A. "Open File"

While Fed.R.Crim.P. 16 places some requirements on the government to disclose evidence to a defendant, ⁸ the government is not compelled by statute or the Constitution to disclose evidentiary details or " 'to explain the legal theories upon which it intends to rely at trial.' " United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983) (quoting United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)). See also Weatherford v. Bursey, 329 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977) ("[t]here is no general constitutional right to discovery in a criminal case"). If the government agrees to maintain an "open file" policy, thereby disclosing its evidence and theories to the defendant, however, the government is obligated to adhere to that agreement. See United States v. Herring, 582 F.2d 535, 540-41 (10th Cir.1978); United States v. Millet, 559 F.2d 253, 256-57 (5th Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 759 (1978). A defendant is justified in relying upon the government's representations of maintaining open records; breaking an open file agreement by withholding important evidence or a key theory can obviously cause great prejudice to a defendant.

However, the mere fact that a defendant is not made aware of certain evidence until shortly before or at trial does not mandate a finding that the government has violated its open file policy. Rather, if the government had not secreted the evidence, and had made the evidence available to the defendant within a reasonable time after the government learned of the evidence's significance or reliability, there has not been a violation of an open file policy. See, e.g., United States v. Franklin, 704 F.2d 1183, 1191 (10th Cir.) (evidence was not secreted and its relevance was not readily apparent), cert. denied, 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983); Herring, 582 F.2d at 541 (no abuse to admit evidence which was not secreted and was made available to the defendant before the trial began). Cf. United States v. Kelly, 420 F.2d 26 (2d Cir.1969) (where prosecution failed to disclose evidence pursuant to a discovery order). ⁹

An open file agreement is essentially an informal discovery agreement; as with other discovery orders, it is generally within the district court's discretion to award sanctions when there has been a violation. See Franklin, 704 F.2d at 1191. Therefore, even if the government violated its open file policy, it would still be within the district court's discretion to determine what the appropriate sanction--such as excluding the evidence or awarding a continuance or mistrial--should be.

In the case at bar, the jury trial began on a Tuesday; the previous Friday, witness Benning had a conversation with Special Agent Lopez about the hijacking of a truckload of beef. The United States Attorney was not immediately notified of this new information and the first partial verification of Benning's statement was not received until Monday, the day before trial, when coconspirator Wayne Smith was interviewed by Lopez and the United States Attorney. Atisha argues that, although the evidence was not intentionally withheld, the government was obligated to inform him of this evidence on Friday, or at least before his counsel delivered an opening statement on the first day of trial.

The United States Attorney asserted that, although Benning had informed the government of a beef theft, the government did not have enough information to know whether the evidence would be used at trial until the trial was under way. At trial, the United States Attorney stated to the district court:

Mr. Benning did advise us the weekend before that he was aware of what basically he testified to. He did not know the name of the company. We had no details. We had no way to verify what company that came from. We couldn't verify the theft. It was not until the following week.... We did not know the name of the company involved with the meat until after we had begun this trial.

There is no assertion, or indication, that the government secreted this evidence, and we do not believe that an open file policy obligates the government to instantaneously inform a defendant of each new piece of information regardless of its significance or foundation. In the instant case, it was established that the beef incident was still under investigation when the trial began and that the government had yet to decide whether it could use the evidence; once it was decided that the evidence could be used, the government informed the...