Lee v. United States, 21469.

• Decision Date: 26 January 1968
• Docket Number: No. 21469.,21469.
• Citation: 388 F.2d 737
• Parties: John Robert LEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.2d 737 (1968)

John Robert LEE, Appellant, v. UNITED STATES of America, Appellee.

No. 21469.

United States Court of Appeals Ninth Circuit.

January 26, 1968.

A. Kendall Wood (argued), Michael E. Witte, of Hinchy, Katz, Witte & Wood, San Diego, Cal., for appellant.

Shelby Gott (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and STEPHENS, District Judge.

MERRILL, Circuit Judge.

Appellant was convicted of bank robbery and has taken this appeal from judgment. The sole question presented is whether the District Court erred in denying motion for new trial sought by appellant upon the ground that the Government deliberately concealed evidence which might clearly have operated in his favor.

If there had been such concealment appellant's right to due process had been violated and he was entitled to new trial. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965).

Upon trial the principal issue was that of identity. Appellant was identified as the robber by two eyewitness bank employees.

On motion for new trial appellant recited that prior to trial the trial judge had ordered Government counsel to disclose to appellant at the close of the Government's case the identity of any witness favorable to his case and to produce such person at his request. Appellant showed by affidavit of his counsel that following submission of the case to the jury Government counsel had advised appellant's counsel that at about the time of the robbery a witness had observed a person vaulting a high fence behind the bank. The affidavit stated further, "Said Assistant United States Attorney declined to further identify the witness." Thus there was both a general pretrial request for favorable evidence in the hands of the Government and a specific request for the identity of this witness when his existence became known. We therefore need not consider what the duty of the prosecutor might have been in the absence of such a request. See Giles v. State of Maryland, 386 U.S. 66, 102, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964).

The Government did not dispute appellant's allegations. In opposition to the motion for new trial it represented simply that the evidence was not favorable to the defendant and that for this reason it was under no duty to reveal the identity of the witness. In sole support of this position it stated, "In fact, the observer was a ten-year-old boy, (now eleven) who stated that he `was not positive whether he ran down the alley, up the alley, or jumped over the fence.'"¹

Upon a motion for new trial based upon nondisclosure of evidence (as distinguished from one based on newly discovered evidence) the precise issue is what the Government had learned from the witness in question (and whether this should have led it to disclose his identity) rather than what this witness might now state under examination by the defendant.

In the typical case of nondisclosure the nature of the suppressed evidence is known to the defendant and is presented by him upon his motion. It is here argued that such a showing is necessary if the defendant's burden of establishing lack of due process is to be met and that such a showing was not made here.

To require a showing in every case of just what it was that the Government learned from a witness casts too heavy a burden on a defendant. In our judgment, where identity is at issue and the defendant has shown that the Government has failed to disclose the existence of an eyewitness to the crime itself, or to entry upon or flight from the scene of the crime, and persists in refusal to name the witness, the defendant's initial burden of showing the nature of the suppressed testimony has been met by inference. It is then incumbent upon the Government to rebut the prima facie case of the defendant by disclosing the nature of the potential testimony as communicated to it at the time of trial.²

We leave to the District Court the question of what should constitute a sufficient governmental showing in this respect — whether the witness need be produced to test the accuracy of the Government's representations as to what it had learned from him,³ and, if so, whether his examination should be in open court or by the court in camera.

Under the circumstances it is our judgment that the order denying motion for new trial should be set aside and that further hearing on the motion should be held.

It is so ordered.

STEPHENS, District Judge (concurring in part).

I agree with the majority that the order denying motion for new trial should be set aside and that a further hearing on the motion should be held. However, I do not agree that the hearing should be limited to inquiring what the government had learned from the anonymous boy witness.

The defendant moved for a new trial on the ground that the government suppressed evidence favorable to the accused. A hearing was held on the motion and it was denied for the reason that the evidence known to the government was not favorable to the accused. Obviously the majority believes, as I do, that the government has not been candid with the court and suspicion hangs heavy in the air.

The trial commenced on January 12, 1965. On January 14, 1965, the government filed a partial statement of evidence favorable to the defendant. Later on the same day, the government represented to the court that the partial statement was a complete statement. On January 15, 1965, after the case was submitted to the jury and while the jury was deliberating, counsel for the government told defense counsel of the existence of a witness who had observed a person vaulting a high fence behind the bank at about the time of the robbery, that this witness furnished the government with a statement and then government counsel refused to identify the witness. The government has ever since steadfastly refused to disclose the identity of the witness and has refused to give a copy of the witness' statement to the defendant.

There appears to be no doubt but that the information concerning the unnamed witness was communicated to defense counsel in the context of the court's order to disclose the identity of all witnesses who might furnish evidence favorable to the accused. If the witness was not in fact known to be favorable to the defendant, the Assistant United States Attorney should have said nothing at all. But now it appears that the government knows something which it is suppressing and the inference is strong that it is favorable to the defense or it would be willingly disclosed.

No excuse at all is offered for maintaining the anonymity of the witness. The observation is made that he was only nine years old at the time, but this is not offered as a reason and besides many children of even tenderer years are called upon to testify in both civil and criminal cases with regularity. The only justification offered by the government for suppression of information inferentially favorable to the accused, including the identity of the witness, is simply that it is not in fact favorable. All that the government will say on the subject is that the boy "was not positive whether he (presumably the bank robber) ran down the alley, up the alley, or jumped over the fence." To me this appears to be a flippant, if not insolent, disposition of the subject.

Initially the law relies upon the government to weigh the information available to it and in good faith determine whether information possessed by the government is favorable to the defendant. But obviously after the conduct of the government has raised an inference that it is suppressing evidence favorable to the accused, it is no longer up to the government to make the decision as to whether what it knows is or is not favorable.

At the hearing on the motion for new trial in the trial court, the government made a disclosure as to what the government knew concerning the potential testimony of the witness. The trial judge...