Fendler v. Goldsmith

• Citation: 728 F.2d 1181
• Decision Date: 21 March 1984
• Docket Number: No. 83-1501,83-1501
• Parties: 14 Fed. R. Evid. Serv. 781, 15 Fed. R. Evid. Serv. 119 Robert Harold FENDLER, Plaintiff-Appellant, v. Robert GOLDSMITH, and the Attorney General of the State of Arizona, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1181

728 F.2d 1181

14 Fed. R. Evid. Serv. 781, 15 Fed. R. Evid.

Serv. 119

Robert Harold FENDLER, Plaintiff-Appellant, v. Robert GOLDSMITH, and the Attorney General of the State of Arizona, Defendants-Appellees.

No. 83-1501.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 13, 1983.

Decided Oct. 14, 1983.

As Amended March 21, 1984.

Robert H. Fendler, pro per.

Linda Akers, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellees.

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

Before ALARCON, CANBY, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

While on trial in Arizona state court, Robert Harold Fendler did not fully comply with the Arizona state criminal discovery rules. These rules permit extensive discovery in criminal cases, by both prosecution and defense, and provide sanctions for noncompliance. Because Fendler did not provide the prosecution with the addresses of two potential witnesses, as required by these rules, the state trial court prohibited those witnesses from testifying. On appeal from the district court's denial of his habeas corpus petition, Fendler argues, principally, that the exclusion of the two witnesses violated his sixth amendment right to present a defense. We agree with respect to one of the witnesses. However, since a transcript of the state court trial was not introduced in the habeas corpus proceeding we are unable to determine whether the error was harmless. Accordingly we remand the matter to the district court for a further hearing.

BACKGROUND

In March 1977, Fendler, along with two other defendants, was charged in a 17 count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. One of the charges against Fendler was that he made a false book entry by overvaluing four assets: goodwill; account acquisition and retention; branch offices; and investment securities.

On March 21, 1977, the prosecution filed its initial disclosures pursuant to Rule 15.1 of the Arizona Rules of Criminal Procedure. ¹ Fendler failed to make the reciprocal disclosures required by Rule 15.2(b). ² At the prosecution's request, the Arizona state trial court ordered Fendler to comply with Rule 15.2. Fendler again did not comply, and on August 19, 1977 the trial court again ordered Fendler to obey the discovery rules or face possible sanctions pursuant to Rule 15.7. ³ On September 2, 1977, Fendler finally filed his initial Rule 15.2 disclosure. This disclosure included the names of over 1,000 prospective witnesses.

The prosecution objected on September 14, 1977 to Fendler's disclosure because, among other reasons, he did not list the addresses for 131 of the potential witnesses as required by Rule 15.2. Colorado attorneys John Schaffer and Thomas Pierson were two of the witnesses for whom no addresses were given. The trial court then ordered Fendler to provide the addresses of every witness he intended to call. Fendler amended his disclosure statement, but still failed to provide numerous addresses, including those of Schaffer and Pierson. On October 6, 1977, the trial court granted the prosecution's motion for sanctions pursuant to Rule 15.7 and precluded Fendler from calling any witnesses for whom both names and addresses had not been provided.

Fendler's trial began on October 17, 1977. On January 8, 1978, several months into the trial and at the conclusion of the state's case, Fendler presented a list of the witnesses he intended to call. The names of attorneys Schaffer and Pierson were again included on the list, but once again no addresses were given. The state trial court after hearing arguments on the issue, ruled that Fendler should have known before trial that the testimony of Schaffer and Pierson might be needed and that he should have provided their addresses. The trial judge therefore left intact his order precluding Schaffer and Pierson from testifying.

A jury convicted Fendler on the false book entry count on February 2, 1978, ⁴ and the trial judge sentenced him to prison for not less than four nor more than five years. Fendler appealed the false book entry conviction to the Arizona Court of Appeals in part on the ground that the Arizona criminal discovery rules in general violated the fifth amendment right against self-incrimination. In addition, Fendler argued that the order precluding Schaffer and Pierson from testifying violated his sixth amendment right to present a defense. The Arizona Court of Appeals rejected both of these contentions and affirmed the false book entry conviction. State v. Fendler, 127 Ariz. 464, 622 P.2d 23, 40-42 (Ariz.App.1980). Fendler's request for review by the Arizona Supreme Court was denied on December 23, 1980.

Fendler subsequently filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976) in the United States District Court for the District of Arizona. ⁵ The petition challenged the Arizona criminal discovery rules and the state trial court's preclusion order on the same fifth and sixth amendment grounds raised before the Arizona Court of Appeals. The district judge referred the case to a magistrate, who conducted an extensive hearing on the events surrounding the exclusion of potential witnesses Schaffer and Pierson. ⁶ The magistrate then recommended that Fendler's petition be dismissed. The district judge agreed with this recommendation and entered an order dismissing the petition. Fendler now appeals pro se ⁷ the district court's denial of his habeas corpus petition.

DISCUSSION

Fendler's principal argument before us is that his sixth amendment right to present a defense was violated when the state court, as a sanction for noncompliance with discovery rules, precluded both Schaffer and Pierson from testifying. ⁸ We are, therefore, presented with the question whether preclusion of witnesses is a constitutionally permissible sanction when defendants do not obey state criminal discovery rules. This question has been expressly left open by the Supreme Court and this circuit. See, e.g., Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 446 (1970) ("Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore. It is enough that no such penalty was exacted here."); Robbins v. Cardwell, 618 F.2d 581 (9th Cir.1980), discussed infra at p. 1187. 1 C. Wright, Federal Practice & Procedure: Criminal Sec. 256, Sec. 436 (Supp.1982).

I. APPROACHES TO THE USE OF THE WITNESS PRECLUSION SANCTION

A. A PROHIBITION AGAINST USE OF THE WITNESS PRECLUSION SANCTION

Courts faced with sixth amendment challenges to witness preclusion orders have offered varied responses. The Fifth Circuit, for example, has held that "the sixth amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants." United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981). A number of commentators have expressed agreement with that view. See Pulaski, "Extending the Disclosure Requirements of the Jencks Act to Defendants: Constitutional and Nonconstitutional Considerations," 64 Iowa L.Rev. 1, 53 (1978) ("using a preclusion sanction to enforce [a discovery rule] may be constitutionally excessive."); ABA Standards for Criminal Justice Sec. 11-4.7(a) (2d ed. 1980) ("The exclusion sanction is not recommended because its results are capricious.... [E]xclusion of defense evidence raises significant constitutional issues."); Note, "The Preclusion Sanction--A Violation of the Constitutional Right to Present a Defense," 81 Yale L.J. 1342, 1364 (1972) (witness preclusion violates sixth amendment right to present a defense).

There is considerable force to the Fifth Circuit's position. To begin with, courts have consistently recognized the paramount importance of a defendant's sixth amendment right to present his own defense. As the Supreme Court has emphasized,

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (emphasis added). See also Rezneck, "The New Federal Rules of Criminal Procedure," 54 Geo.L.J. 1276, 1294 (1966) (courts have been "historical[ly] willing[ ] ... to afford defendants in criminal cases an untrammeled right to be heard."). By precluding defense witnesses from testifying, a court may substantially hinder a defendant's efforts to persuade a jury of his innocence. See, e.g., Davis, 639 F.2d at 243; State v. Marchellino, 304 N.W.2d 252, 256-57 (Iowa 1981) (preclusion of defense evidence not permitted under Iowa criminal discovery rules because of its "severity" and "possible constitutional implications."); Note, "Constitutionality of Conditional Mutual Discovery Under Federal Rule 16," 19 Okla.L.Rev. 417, 424 (1966).

Second, a defendant's failure to comply with discovery rules will usually have nothing to do with the probative value of the evidence to be excluded. Consequently, the "exclusion of defense evidence may lead to an unfair conviction." ABA Standards, supra. Such a result would obviously "defeat the objectives of discovery." Id. See also Weinstein, "Some Difficulties in Devising Rules for Determining Truth in Judicial Trials," 66 Colum.L.Rev. 223, 237 (1966) ("Wh...