Lewis v. U.S., 84-2194
| Decision Date | 27 August 1985 |
| Docket Number | No. 84-2194,84-2194 |
| Citation | 771 F.2d 454 |
| Parties | Jermaine LEWIS, a/k/a Bernard Lewis a/k/a Bernard Wilson, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Philip K. Blough II, Tulsa, Okl., for appellant.
Peter Bernhardt, Asst. U.S. Atty., Tulsa, Okl. (Layn R. Phillips, U.S. Atty., and Ben F. Baker, Asst. U.S. Atty., Tulsa, Okl., on brief), for appellee.
Before MOORE, BREITENSTEIN and DOYLE, Circuit Judges.
Defendant Jermaine Lewis appeals his conviction for burglary of a post office, a violation of 18 U.S.C. Sec. 2115, and for destruction of government property, a violation of 18 U.S.C. Sec. 1361. We affirm the conviction.
The facts of the case are as follows. At approximately 1:30 a.m. on April 23, 1984, a silent alarm went off at the United States Post Office in Bristow, Oklahoma. Police officers responded to the alarm, arriving at the post office in minutes. There they apprehended one Thomas Mitchell as he fled from the east side of the building. Mitchell stated that defendant Jermaine Lewis was still inside, but the police officers were unable to find anyone in the post office. The officers did find one blue bag of burglary tools at the scene and another blue bag in some nearby bushes. They also discovered that defendant's wife, Jo Ann Lewis, and Mitchell's girlfriend, Frances McCowan, were parked in a car across the street from the post office. Defendant was arrested a short time later at his home, which was three blocks from the post office.
Defendant was charged in a two-count indictment with burglary of a post office and with destruction of government property. A jury trial was held in the United States District Court for the Northern District of Oklahoma on June 18 and 19, 1984. The trial ended in a hung jury, and the court declared a mistrial. A second jury trial was held on July 16 and 17, 1984, in which defendant was found guilty on both counts. Defendant was sentenced to two four-year terms, to run concurrently, and was ordered to pay restitution of $4,405.18.
At both trials, Thomas Mitchell and Frances McCowan testified that defendant and Mitchell had burglarized the post office after having stolen a cutting torch and oxygen bottles from a local garage store. Apparently defendant and Mitchell made several trips to the post office, first from the garage store with the torch and bottles and twice later from defendant's home with various burglary tools. On the first two trips, they were driven by McCowan and Mrs. Lewis. McCowan and Mrs. Lewis then waited in the car across the street from the post office while defendant and Mitchell made the third trip on foot.
Defendant presented an alibi defense at both trials, relying on the testimony of Debra Rogers. Rogers stated that defendant had been with her in Oklahoma City, some 100 miles from Bristow, on the evening of April 22, 1984. At the second trial, the government called a rebuttal alibi witness, Sergeant Clarence Eslick of the Bristow Police Department, who testified that he had seen defendant buy gasoline at a local convenience store between 10:15 and 11:00 p.m. on April 22, 1984. Because the government did not know until the day of the trial that Eslick could rebut defendant's alibi, it gave defendant only one day's notice that Eslick would be called as a witness.
After he was convicted in the second trial, defendant filed a Motion for New Trial on Newly Discovered Evidence. At a hearing on the motion, defendant called James Drummond, who had worked at the convenience store the night Sergeant Eslick claimed to have seen defendant there. Drummond stated that defendant did not come into the store at any time that night. The district court denied the new trial motion, and defendant appeals his conviction on the following grounds.
First, defendant argues that the government violated Fed.R.Crim.P. 12.1 by failing to give him adequate notice of rebuttal witness Sergeant Eslick. Defendant relies on Rule 12.1(b), which states:
(b) Disclosure of Information and Witness.
Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the attorney for the government shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
We believe that the Rule applicable to this case is not 12.1(b...
To continue reading
Request your trial
-
Andrews v. Barnes
...the petitioner has presented some "impeaching" evidence on a collateral matter. This is insufficient for relief. Lewis v. United States, 771 F.2d 454, 456-57 (10th Cir.1985); United States v. Ramsey, 726 F.2d 601, 604 (10th Cir.1984); United States v. Allen, 554 F.2d 398, 403 (10th Cir.) ce......
-
State v. Verde
...the trial, as where a defendant is shown to have stolen a cutting torch that is used in a subsequent burglary. See Lewis v. United States, 771 F.2d 454, 456 (10th Cir.1985). “Pattern” evidence, by contrast, is implicated where the uncharged and charged conduct is “peculiarly distinctive” an......
-
State v. Lough
...scheme or plan. The first category causes relatively little difficulty. It includes cases such as the following: Lewis v. United States, 771 F.2d 454 (10th Cir.1985), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (U.S.1985) (testimony properly admitted that defendant accused of......
-
State v. Verde
...the trial, as where a defendant is shown to have stolen a cutting torch that is used in a subsequent burglary. See Lewis v. United States, 771 F.2d 454, 456 (10th Cir. 1985). "Pattern" evidence, by contrast, is implicated where the uncharged and charged conduct is "peculiarly distinctive" a......