U.S. v. Bartle, 87-5093

• Citation: 835 F.2d 646
• Decision Date: 17 December 1987
• Docket Number: No. 87-5093,87-5093
• Parties: 24 Fed. R. Evid. Serv. 594 UNITED STATES of America, Plaintiff-Appellee, v. Herbert BARTLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 646

835 F.2d 646

24 Fed. R. Evid. Serv. 594

UNITED STATES of America, Plaintiff-Appellee, v. Herbert BARTLE, Defendant-Appellant.

No. 87-5093.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 24, 1987.

Decided Dec. 17, 1987.

Daniel T. Taylor, III, Louisville, Ky. (Court-appointed), for defendant-appellant.

Joseph Whittle, U.S. Atty., David Grise, Randy Ream, Terry M. Cushing, argued, Louisville, Ky., for plaintiff-appellee.

Before MARTIN and KRUPANSKY, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Herbert Bartle appeals from a judgment of the United States District Court for the Western District of Kentucky convicting him of making a false statement in an application for status as a permanent resident to the United States Immigration and Naturalization Service (INS), in violation of 18 U.S.C. Sec. 1546. ¹ In this appeal, Bartle argues that the government failed to present proof to sustain the charge of the indictment. He also claims that the district court erred in allowing the government to introduce damaging evidence that had not been made available to defense counsel in contravention of a reciprocal discovery order. Finally, Bartle contends that, although the district court was correct during the trial in severing his trial from that of his alleged accomplice Brad Smith because of a perceived problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the district court committed reversible error in proceeding with his trial when the testimony elicited prior to severance concerned statements allegedly made by Smith--not Bartle. For the following reasons, we affirm the judgment of the district court.

I.

On July 7, 1986, the grand jury returned an indictment against Bartle and Smith. Paragraph two of the single-count indictment charged Bartle with falsely representing under oath to the INS "that defendant and Jogina Eheart were living together as man and wife." Smith was charged with aiding and abetting the commission of this offense.

The incident that became the subject of this criminal prosecution occurred on October 23, 1985. On that day, Bartle, a West German immigrant, applied for status as a permanent resident alien at the INS office in Louisville, Kentucky. His ground for so doing was that he was married to one Jogina Eheart, a United States citizen.

On line 14 of the permanent resident application (Form I-485), Bartle checked the box indicating that he was married, and listed his wife's name as "Eheart, Jogina Ann." On line 15, Bartle checked the box indicating that his wife resided with him. At the bottom of the form, Bartle made oath that the contents of the application were true to the best of his knowledge.

A joint trial of Bartle and Smith was commenced before a jury, and it was not disputed at trial that Bartle and Eheart were validly married in June of 1985.

Eheart was the government's chief witness at trial. She testified that sometime in January or February of 1985 she was approached by Smith who discussed with her the possibility of marrying Bartle so that he could acquire permanent resident status. Eheart further testified that Smith promised her five-hundred dollars if she married Bartle and that she did not know Bartle at the time.

Bartle objected to this testimony on the ground that, while probative of Smith's complicity and admissible against him as an admission by a party-opponent, such testimony would violate Bartle's sixth amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), if Smith did not testify thereby avoiding cross-examination, and that Smith had not indicated that he was going to testify. Later in the trial, the district court granted Bartle's motion for a severance of his trial from Smith's in order to avoid continuing Bruton problems. But instead of proceeding with Smith's trial and postponing Bartle's, the court unaccountably did the opposite. Bartle objected to the court's decision to proceed with his trial. Smith did not testify at Bartle's trial.

Eheart continued her testimony. She testified repeatedly that she was not living with Bartle on October 23, 1985--the day Bartle filed his permanent resident application with the INS. Rather, she maintained that she was living at the Army barracks in Fort Campbell, Kentucky, where she served as an enlisted soldier. Eheart's testimony was impeached on cross-examination by the disclosure that she had lied to the INS on numerous occasions and had made an agreement with the government for her testimony against Bartle.

The only other evidence presented at trial tending to corroborate Eheart's testimony that she was not living with Bartle on October 23, 1985, was a "key-control log" in the possession of Sergeant Jackie Jameson. Sergeant Jameson testified that the key-control log is kept by the Army at Fort Campbell and records the day on which a key to the barracks is checked out to an enlisted soldier and the day on which it is returned. The log showed that a key was checked out to Eheart on October 8, 1985, and returned on November 27, 1985, and was therefore checked out at the time Bartle had represented that she was living with him.

Bartle objected to the introduction of the key-control log on the ground that it was not made available to him during discovery in violation of a reciprocal discovery order. The government explained that the log was not discovered until the day before trial. The district court overruled Bartle's objection and admitted the key-control log as evidence.

On October 2, 1986, the jury returned a verdict of guilty against Bartle finding that he violated 18 U.S.C. Sec. 1545 by falsely swearing that he resided with Eheart on October 23, 1985. Bartle was subsequently sentenced to five years of probation.

II.

A.

Bartle first argues that he is entitled to a reversal because of a variance between the proof introduced at trial and the facts alleged in the indictment. Paragraph two of the indictment states:

As part of the [permanent resident] application process, on or about October 23, 1985, HERBERT BARTLE was placed under oath by a Hearing Examiner duly authorized to administer oaths, and thereunder and contrary to that oath knowingly affirmed, restated the substance of, and subscribed as true an Application for Status as a Permanent Resident which, as defendant well knew, contained false statements of material facts; to wit, that defendant and Jogina Eheart were living together as man and wife.

Bartle argues that since his application for permanent resident status, introduced into evidence, which affirms that "[m]y ... wife resides with me," does not contain the indictment language, "living together as man and wife," there is a variance between the government's proof at trial and the facts alleged in the indictment. We disagree in that we determine that there was no material variance. This court has noted that "[a] variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment." United States v. Beeler, 587 F.2d 340, 342 (6th Cir.1978), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981).

Bartle argues that the language of the indictment, "living together as man and wife," should be narrowly construed as a direct quote of the false statement allegedly contained in his application for permanent residency, and, since that precise language does not appear on the application, there is a variance between the government's proof and the facts alleged in the indictment. Since the grand jury did not intend its words to be a quote but merely a summary of the fraudulent representation (as evidenced by the absence of quotation marks around the statement), Bartle's argument rests implicitly on the assumption that indictments alleging false representations must quote the offending statements.

This assumption is incorrect. In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the Supreme Court held that a key requirement for an indictment to pass fifth amendment muster is that it " 'sufficiently apprise the defendant of what he must be prepared to meet.' " Id. at 763-64, 82 S.Ct. at 1047 (citations omitted). Additionally, the Court noted that the indictment must be specific enough to enable the defendant to effectively raise the double jeopardy bar in any subsequent criminal proceeding. Id. at 764, 82 S.Ct. at 1047.

These constitutional requirements do not mandate that, in every false statement prosecution, the indictment quote verbatim the purported misrepresentation. See, e.g., United States v. Radetsky, 535 F.2d 556 (10th Cir.1976). It is sufficient, to apprise the defendant of the charge and to protect against double jeopardy, if the indictment describes the alleged false statement in such a way as to distinguish it from the universe of other statements made by the defendant.

In the instant case, the indictment describes with particuliarity the document in which the false statement is to be found, and adequately summarizes the statement's contents. There is, therefore, no requirement that we take the excessively literalist tack urged by Bartle of treating the summary language of the indictment as a direct quote, and superimposing the indictment's language over Bartle's actual statement to insure a perfect match. ²

B.

Bartle next argues that the district court abused its discretion in permitting the government to introduce the Fort Campbell key-control log into evidence when the log had not been furnished to him in contravention of a reciprocal discovery order. Specifically, he contends that the district court's decision violated Rule 16 of the Federal Rules of Criminal Procedure. We reject this argument on two separate grounds.

The first ground for rejecting Bartle's argument is that Rule 16 does not require federal courts to exclude evidence not turned over...