987 F.2d 1054 (4th Cir. 1993), 91-5774, United States v. Shafer

Docket Nº:91-5774.
Citation:987 F.2d 1054
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Scott Dunbar SHAFER, Defendant-Appellant.
Case Date:February 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1054

987 F.2d 1054 (4th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Scott Dunbar SHAFER, Defendant-Appellant.

No. 91-5774.

United States Court of Appeals, Fourth Circuit

February 23, 1993

Argued Oct. 29, 1992.

Sean Patrick Devereux, Whaley, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A., Asheville, NC, for defendant-appellant.

Page 1055

Frank D. Whitney, Office of the U.S. Atty., Charlotte, NC, argued (Thomas J. Ashcraft, U.S. Atty., Gretchen C.F. Shappert, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.

OPINION

K.K. HALL, Circuit Judge:

Scott Dunbar Shafer conditionally pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341. The plea preserved his right to appeal the district court's decision to declare a mistrial over his objection. We conclude that there was no "manifest necessity" for the mistrial and reverse.

I.

Shafer owned Seeker Lure Company ("Seeker"), a small manufacturer of plastic fishing worms located in Hendersonville, North Carolina. On February 21, 1985, the building occupied by Seeker burned to the ground. Shafer received an insurance settlement for the building's contents.

On February 9, 1990, twelve days before the statute of limitations would have run, a grand jury indicted Shafer on one count of arson, 18 U.S.C. § 844(i), and one count of mail fraud, 18 U.S.C. § 1341.

On March 1, 1990, Shafer filed a request for exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On March 16, 1990, the United States Magistrate entered an order requiring that:

[T]he Government disclose to defense counsel all Brady material which is in the possession, custody or control of the government, the existence of which is known, or by due diligence should become known, to the attorney for the government. Disclosure under this paragraph will include the following:

. . . . .

  1. evidence or information ... which tends to exculpate the accused;

    . . . . .

  2. evidence or information tending to discredit or impeach the credibility of a government witness,.... Impeaching as well as exculpatory evidence is favorable to the accused under Brady.

    (emphasis supplied; citations omitted). The order further specified that the discovery materials were to be provided "no later than ONE WEEK prior to trial[.]" (emphasis in original). On March 20, 1990, government and defense counsel entered into an "open file" agreement. On March 4, 1991, the government provided defense counsel with what it claimed were all Jencks 1 and Brady materials.

    The jury was empaneled on March 5, 1991. The government's opening statement told the jury that the evidence would prove that Shafer burned his place of business because Seeker was failing financially. The government, in its case-in-chief, delivered on its promise to show that Seeker Lure was failing financially. As later events would demonstrate, however, it did so through false or misleading testimony.

    Terry Lee Gimer, an employee of C & L Plastics, one of Seeker's suppliers, testified that Seeker had never purchased more than $5,000 of worms in a month and that its total purchases from C & L in 1984 and 1985 were only $14,000. She also intimated that Seeker would not have had alternative sources of supply of certain types of worms.

    Marvin Culp, another supplier, testified that Seeker curtailed its orders in 1984 and only ordered one small shipment in the "early part" of 1985. Although Culp could not at first remember how small the shipment actually was, after the government "refreshed" his memory, he agreed that it was "next to nothing," and that he had informed the investigators the small order might indicate sales problems. Culp also testified that, to the best of his knowledge, Seeker had shifted its orders to C & L. When this testimony was combined with

    Page 1056

    Gimer's statement that Seeker's total purchases of worms from C & L for 1984 and 1985 was only $14,000, it created the impression that Seeker was in serious financial trouble.

    On redirect, the government emphasized the significance of Shafer's curtailment of orders immediately prior to the "heart of the worm season" and again elicited Culp's opinion that this action indicated sales problems. 2

    A. The missing documents.

    As the government's case unfolded, Shafer's lawyer complained that the discovery materials produced on March 4, 1991, contained an internal reference to an unproduced videotape of the fire scene. The court heard evidence on this matter, determined that the tape was lost, and ruled that the trial should continue in its absence.

    On March 12, still seeking the tape, Shafer's lawyers served a subpoena duces tecum on Captain John Nicholson, who was in charge of the Hendersonville Police Department's property room. Nicholson could not find the tape, but he did bring a cart that was four feet long and stacked two to three feet high with Seeker's financial records--records that had never been disclosed to Shafer's lawyers.

    These records had been collected from the fire scene and stored for over six years in the Hendersonville Police Department. At some point, the records became misplaced or forgotten. Significantly, Steve Reed, a State Bureau of...

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