U.S. v. Wayne, s. 89-1486

Citation903 F.2d 1188
Decision Date06 July 1990
Docket NumberNos. 89-1486,89-1563,s. 89-1486
PartiesUNITED STATES of America, Appellee, v. Eric Alan WAYNE, Appellant. UNITED STATES of America, Appellant, v. Eric Alan WAYNE, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Louis M. Jepeway, Jr., Miami, Fla., for appellant.

Richard L. Murphy, Cedar Rapids, Iowa, for appellee.

Before McMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

A jury found Eric Alan Wayne guilty on three counts of possession of cocaine with the intent to distribute, and aiding and abetting possession with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988). Wayne was also found guilty on Count V of conspiring to distribute, and possess with the intent to distribute, cocaine and marijuana in violation of 21 U.S.C. Sec. 846 (1988). The district court 1 granted a new trial on Counts I and II, involving offenses occurring in April, 1987, because the government had withheld evidence critical to Wayne's cross-examination of a witness to those drug activities. On appeal, Wayne argues that the district court erred by: (1) denying his motion for a new trial on Counts III and V because the suppressed evidence was also material to those counts and there was a reasonable probability that its disclosure would have affected the outcome of the trial; (2) denying his motion to suppress evidence seized pursuant to an allegedly invalid search warrant; and (3) making certain sentencing determinations. On cross-appeal, the government argues that the court abused its discretion in granting Wayne's motion for a new trial on Counts I and II. After considering these arguments, we affirm the judgment of the district court.

The facts leading to Wayne's arrest and convictions are complex, and involve a series of narcotics transactions in Florida, Iowa, and Arizona, extending over several years. The indictment charged four counts of possession of cocaine with the intent to distribute, and aiding and abetting possession with the intent to distribute, on the following dates: Count I charged an April 26, 1987 offense, Count II charged an April 29, 1987 offense, Count III charged an offense occurring between September 9 and September 11, 1987, and Count IV charged an October 13, 1987 offense. Count V, the conspiracy charge, was alleged to have occurred between April 1982 and May 1988. Wayne was convicted on four counts, but was acquitted of Count IV. He was sentenced to serve 300 months imprisonment. The issues on appeal focus on the testimony of several witnesses, all of whom had been arrested on drug charges and had agreed to cooperate with the government, including Tim Shelton, Bart Hoffman, Joseph Newland, and Chris Mottinger. It is not necessary here to recite the evidence in detail, as we will refer to it in considering the specific claims of error.

I.

Wayne argues that the district court erred in refusing to grant a new trial as to Counts III and V because the suppressed evidence, on which the court based its grant of a new trial for Counts I and II, was also material to Counts III and V, and there was a reasonable probability that its disclosure would have affected the outcome of the trial.

After the jury convicted Wayne on Counts I, II, III, and V, he filed a motion for a new trial because the government had failed to disclose the existence of drug transaction records kept by witness Bart Hoffman, which were seized by the FBI when Hoffman was arrested on drug charges. The records referred to debts owed by Hoffman, debts owed to him, and other details of drug sales. The court granted a new trial for Counts I and II because it found that Hoffman was the only witness who identified Wayne as the source of the drugs involved in those counts. Hoffman's credibility, therefore, was critical to those counts, and the court found that Wayne's lack of opportunity to cross-examine Hoffman, and perhaps impeach him, concerning the undisclosed records undermined its confidence in the verdict on those two counts. The court concluded that the prosecution's failure to disclose the suppressed records did not undermine its confidence in the verdicts on Counts III and IV, however, because Hoffman's testimony was not factually critical to those counts, and the jury's verdicts on those counts were supported by an "abundance of evidence." (Sentencing Hearing, Mar. 3, 1989, at 199).

Wayne challenges the court's conclusion as to Counts III and V. He argues that the suppressed evidence not only undermined confidence in the counts upon which Hoffman testified, but also tainted the counts upon which Newland testified. He contends that the complete impeachment of Hoffman also completely undermined Newland's testimony.

It is beyond dispute that a defendant's constitutional right to due process is violated if the prosecution withholds evidence favorable to the defendant, and the evidence is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). It is also firmly-established that the Brady rule applies to impeachment evidence, as well as to exculpatory evidence. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court refined the principle announced in Brady by providing a standard to determine whether the suppressed evidence is material:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

Id. at 682, 105 S.Ct. at 3383. Thus, our task is to determine whether there is a reasonable probability that the outcome of the trial for Counts III and V would have differed if the prosecution had provided Wayne with the records seized from Hoffman as part of the discovery file. Based upon a thorough examination of the record, 2 we are satisfied that there is no reasonable probability that the results would have differed for those counts if the Hoffman records had been disclosed to Wayne prior to trial. 3 We are impressed with the careful analysis which the district court performed in distinguishing between the evidence on Counts I and II, and the evidence on the other counts. We are persuaded that the court did not err in refusing to grant a new trial on Counts III and V.

A.

Count III was not based upon Hoffman's testimony, unlike Counts I and II. As the district court recognized, Hoffman's testimony provided the only evidence that Wayne was the source of the cocaine in the Count I and II April 1987 transactions. By way of contrast, Count III, the September 1987 transaction, was established primarily through Joe Newland's testimony. A review of the evidence on Count III leads us to conclude that the suppressed evidence was not material to this count. Since the suppressed evidence was not material to those counts, for purposes of the Brady rule, Wayne is not entitled to a new trial on Count III.

Newland and Wayne began planning a three kilogram cocaine deal in July or August 1987. (Tr. 752). Wayne told Newland that he felt that Hoffman, who had previously acted as a middleman in the distribution process, was "ripping him off and lying to him." (Tr. 753). Wayne wanted to avoid selling narcotics through Hoffman, and therefore, he proposed selling directly to Newland. (Tr. 753). Newland and Wayne discussed prices over the telephone, and then Newland and another individual, Larry Shreeves, flew to Miami, Florida to complete the deal. (Tr. 754). Newland purchased the three kilograms from Wayne at Wayne's home in Miami. (Tr. 754). They had agreed upon a price of $18,500 for each of the three kilograms, (Tr. 754), but Newland paid only $40,000 to Wayne at the time of the sale. (Tr. 755).

After the sale, Wayne, Shreeves, and Newland went to the Miami airport in order to rent a car. (Tr. 755). Shreeves was to drive the cocaine back to Iowa while Newland planned to fly back. (Tr. 755). Wayne rented the car for Shreeves because Shreeves had forgotten his driver's license and other identification. (Tr. 755). Shreeves and Newland were reunited soon thereafter in Iowa City. (Tr. 755). Newland called Wayne from his motel because Wayne wanted to make sure that they had arrived without incident, and also because Wayne was concerned since the car was rented in his name. (Tr. 757). Mark Stearns was at Newland's motel, and the two men drove to Shreeves' motel to pick up the cocaine. (Tr. 756). Stearns, Shreeves, and Newland then used the rental car to drop off Shreeves at his father's house, to take Stearns to pick up his Corvette, and then to drive to the Cedar Rapids airport to return the rental car. (Tr. 757). After Newland returned the rental car, Stearns picked him up, and Newland gave him the cocaine. (Tr. 757). Newland received money from Stearns for the cocaine, and then he returned to Miami to pay Wayne the remainder of the selling price, approximately $15,000. (Tr. 757-58).

While Newland was in Miami to pay the amount due on the sale, Wayne gave Newland a Burmese sapphire ring to sell for Wayne. (Tr. 758). Wayne explained that Hoffman had given him the ring as collateral on a marijuana deal. (Tr. 759). Newland then returned to Phoenix. (Tr. 759). The ring was later seized from Newland's safe deposit box after his arrest, and introduced into evidence at Wayne's trial. (Tr. 788).

We agree with the district court's conclusion that the Hoffman drug transaction records withheld by the government were not material to Count III. There is not a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley,...

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