U.S. v. Arthur, s. 90-6079

• Decision Date: 14 November 1991
• Docket Number: 90-6080,Nos. 90-6079,s. 90-6079
• Citation: 949 F.2d 211
• Parties: 34 Fed. R. Evid. Serv. 1021 UNITED STATES of America, Plaintiff-Appellee, v. Danny Wade ARTHUR (90-6080), and Terry Keith Arthur (90-6079), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 211

949 F.2d 211

34 Fed. R. Evid. Serv. 1021

UNITED STATES of America, Plaintiff-Appellee, v. Danny Wade ARTHUR (90-6080), and Terry Keith Arthur

(90-6079), Defendants-Appellants.

Nos. 90-6079, 90-6080.

United States Court of Appeals, Sixth Circuit.

Argued July 15, 1991.

Decided Nov. 14, 1991.

Guy W. Blackwell, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Greeneville, Tenn. and John W. Gill, Jr., U.S. Atty., Office of the U.S. Atty., Chattanooga, Tenn., for the U.S., plaintiff-appellee.

James A.H. Bell (argued and briefed), Law Offices of James A.H. Bell, Knoxville, for Terry Keith Arthur, defendant-appellant.

Anthony Philip Lomonaco (argued and briefed), Vaughan & Zuker, Knoxville, Tenn., for Danny Wade Arthur, defendant-appellant.

Before BOGGS, Circuit Judge, and BROWN, Senior Circuit Judge, and GIBBONS, District Judge. ^*

BAILEY BROWN, Senior Circuit Judge.

Defendants Danny Wade Arthur (Danny) and Terry Keith Arthur (Terry), two brothers appeal from their convictions for the armed robbery of the Bank of East Tennessee in Knoxville, Tennessee (bank). Both defendants allege that numerous trial errors occurred that mandate reversal. Because Terry confessed to the crime from the witness stand, any error is harmless as to him. Danny's conviction, however, is reversed because the district court induced a material witness to exercise his fifth amendment right to remain silent, and also because the district court erroneously excluded material, exculpatory evidence.

I.

On October 3, 1988, at approximately 2:00 p.m., a lone, white male wearing a baseball cap entered the bank and approached a teller. This man opened a bag he was carrying, showed the teller a gun and demanded money. After receiving the money, the robber exited through the front door. A witness saw the robber get into the passenger side of a black Chevrolet driven by another white male, which then moved away. The robbery was immediately reported to the local police and the FBI.

When FBI Agent Dixon and Agent Kazakewich learned of the robbery, they reported an incident that had occurred earlier that day. The agents had seen a black Chevrolet cruising slowly in the neighborhood of the bank about three hours before the robbery occurred. The agents took down the Florida license plate number and followed the car until they lost it in traffic. There were two white males in the car, with the driver wearing a baseball cap.

A black Chevrolet with the license plate number recorded by the agents was owned by Ginger Stivers of Jacksonville, Florida. When approached by the FBI, Ms. Stivers reported that she had allowed her brother Danny to borrow the car. The FBI acquired, based on the suspicions raised by Ms. Stivers' statement, a picture of Danny. Agent Dixon positively identified Danny from this photograph as the individual driving the black Chevrolet the day of the robbery, and two witnesses at the bank robbery identified Danny from a photograph array as the robber. Danny was arrested based on these identifications.

After Danny's arrest, Ms. Stivers, the sister, changed her statement concerning who had borrowed her car. According to her new statement, Terry, her other brother who is the co-defendant, borrowed her car. She had, she said, initially rejected Terry's request to use the car because of her husband's anticipated disapproval. Her husband disliked Terry and did not trust him with the car. Terry suggested that she lie to her husband by telling him that Danny had borrowed the car because her husband would not object to Danny's borrowing the car. She told the same lie, she said, to the FBI out of fear that her husband would discover the deceit.

On November 4, 1988, Terry was arrested in Michigan after a traffic stop on charges unrelated to this bank robbery. Larry Fields, a passenger in the car, was also arrested. In a search of the car incident to the arrest, a .32 caliber revolver, cash of $1,235, and several baseball caps and wigs were discovered. Both Terry and Larry Fields were held in custody.

In two separate FBI interviews of Terry and Larry Fields conducted two weeks after their arrest, both men confessed to committing a series of robberies in Tennessee and North Carolina, including the robbery in Knoxville. Both maintained that Danny was not involved in any of the robberies.

Both Terry's and Larry Fields' confessions give the same basic account of the Knoxville robbery. Terry drove to Florida to get Ms. Stivers' car for use in the robbery. The morning of the robbery they "cased" the bank. As stated in Terry's confession, "[Terry] stated he observed a white male and a white female in a gray Dodge Diplomat ... and recalled telling FIELDS that the two were detectives." These individuals presumably were the FBI Agents Dixon and Kazakewich. Terry drove away from the bank and lost the agents' car in traffic. Terry and Larry Fields then decided to return to the bank and commit the robbery. With Larry Fields driving the car, Terry entered the bank with a bag and a gun. As asserted in the confession, "[Terry] stated ... he was wearing a blue denim baseball-type cap with a wig ..." to disguise his appearance when he robbed the bank. After receiving the money from the teller, he exited the bank and got into the black Chevrolet driven by Larry Fields. As written up by the FBI, Larry Fields' confession states, "no other individuals participated in the bank robberies and [Fields] specifically cited that DANNY ARTHUR was not present in Knoxville, Tennessee ... [and] stated that in addition, he has never met DANNY ARTHUR." Terry's in-court confession also maintains that Danny was not involved.

Two exhibits introduced at trial corroborate these confessions. First, a photograph of Larry Fields taken by a surveillance camera at the bank several hours before the robbery was introduced at trial. Second, several baseball caps and wigs were discovered in the car when Terry and Larry Fields were arrested in Michigan. Moreover, no witness could place more than two individuals in the black Chevrolet at any time.

The prosecution maintains that the course of events occurred as follows: Larry Fields "cased" the bank several hours before the robbery and the surveillance camera took his picture. Danny was driving the black Chevrolet with Terry as a passenger when the two FBI agents became suspicious and took down their license plate number. After Danny lost the agents in traffic, they returned to the bank. Danny entered the bank wearing a baseball cap and committed the robbery and Terry drove the "get away" car. Terry and Larry Fields then confessed to the crime in order to exculpate Danny. Both Terry and Larry Fields faced so much time in prison anyway, according to the government, the effect of an additional conviction for this bank robbery would be minimal.

Both Terry and Danny were charged with the bank robbery. Larry Fields was not indicted despite the fact that he confessed to the crime and a bank surveillance camera had taken his picture several hours before the robbery. The primary evidence that the government had connecting Danny to the robbery was the positive identification by several of the witnesses in the bank and the FBI agents. Danny maintained that this was a case of mistaken identification and that the witnesses were mistaking him for his brother Terry. Although Terry was balding and Danny had a full head of hair, Danny maintained that the two brothers looked very similar when Terry wore a baseball cap and wig. Danny made a motion before trial that his co-defendant Terry be required at the trial to put on the wig and baseball cap in front of the bank robbery witnesses. The government maintained that there was no foundation for this demonstration because all of the witnesses to the robbery stated that the robber did not wear a wig. The district court denied the pre-trial motion.

At the trial, against the advice of his court-appointed counsel, Larry Fields took the stand as a witness for Danny. He testified that he had arranged to and did meet Terry Arthur in Lexington, Kentucky, looked for a bank to rob in that area and ultimately they went on to Knoxville and looked there for a bank to rob. At the moment when Larry Fields was about to get into the details of the bank robbery itself, the government counsel asked the district court to inform the witness of his fifth amendment right to remain silent. The district court entered into a long colloquy with Larry Fields outside the presence of the jury. The district court strongly encouraged Larry Fields to assert the fifth amendment. Larry Fields stated that he wanted to testify in order to clear Danny. Finally the district court stated, "I think it's not to your best interest to testify because anything you say may be held against you in another prosecution against you for bank robbery, could and would be used against you. Knowing that, do you still want to testify or do you want not to testify." Larry Fields then stated, "I want to plead the fifth." Counsel for Danny then requested to be allowed to ask specific questions of Larry Fields in front of the jury, and to allow Larry Fields to then assert the fifth amendment. The district court refused. Moreover, the district court refused to allow Terry or the government to cross-examine Larry Fields before the jury on those matters about which Larry Fields had already testified. Danny then sought to introduce Larry Fields' confession to the FBI as a statement against penal interest, but the district court denied the request.

After Larry Fields decided to exercise his fifth amendment privilege, Terry, outside the presence of his own counsel, told counsel for Danny that he would like to testify on Danny's behalf. Over the objection of Terry's counsel, Terry testified that he was the person who robbed the bank and that Larry Fields drove the "get-away" car. Terry maintained that he wore a wig and a baseball cap to...