U.S. v. Bizzard

• Citation: 674 F.2d 1382
• Decision Date: 06 May 1982
• Docket Number: Nos. 81-7403,s. 81-7403
• Parties: 10 Fed. R. Evid. Serv. 687 UNITED STATES of America, Plaintiff-Appellee, v. Errol Ricardo BIZZARD, Defendant-Appellant. to 81-7406.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1382

674 F.2d 1382

10 Fed. R. Evid. Serv. 687

UNITED STATES of America, Plaintiff-Appellee, v. Errol Ricardo BIZZARD, Defendant-Appellant.

Nos. 81-7403 to 81-7406.

United States Court of Appeals, Eleventh Circuit.

May 6, 1982.

James F. Ponsoldt, Athens, Ga. (Court appointed), for defendant-appellant.

Melissa S. Mundell, Joseph D. Newman, Asst. U. S. Attys., Augusta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before RONEY and JOHNSON, Circuit Judges, and PITTMAN ^*, District Judge.

RONEY, Circuit Judge:

Convicted of aggravated bank robbery, defendant raises on this appeal multiple points involving double jeopardy, speedy trial, and Brady issues, the admissibility, failure to admit, and sufficiency of evidence, prosecutorial misconduct, and jury instructions. The district court, 493 F.Supp. 1084, having committed no reversible errors, we affirm.

On May 26, 1978, the defendant and an accomplice robbed a bank in Savannah, Georgia. The two men fled from the bank on foot, one of them carrying a pillowcase containing the stolen money. The accomplice was immediately arrested by police. The defendant escaped capture at that time. The accomplice informed FBI agents that the defendant had been his cohort in the bank robbery. He described the defendant, called him by his street name, "Hip," identified a photograph of him, and gave his address. Based on this information a warrant was obtained for the arrest of Bizzard. The defendant was found at his parents' home by the agents and voluntarily accompanied them to the FBI office where he denied his involvement in the robbery.

Defendant Bizzard was convicted and sentenced to 20 years imprisonment. This Court reversed the conviction, finding the trial court in its instructions to the jury had fatally amended the indictment, and remanded the case for retrial. United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980). The Court specifically noted that double jeopardy would not bar retrial. 615 F.2d at 1082. On retrial, the jury returned a verdict of guilty, and defendant was sentenced to 15 years imprisonment. Four separate appeals filed by defendant were consolidated by order of this Court. ¹ The defendant raises a number of challenges. Although many border on the frivolous and merit little discussion, we will address each point made by defendant.

Double Jeopardy

There are two issues on defendant's claim of double jeopardy. The first issue is whether the district court had jurisdiction to try defendant after he filed a notice of appeal from the denial of his double jeopardy motion.

Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), held a defendant was entitled to appellate review of a double jeopardy claim prior to trial. See 28 U.S.C.A. § 1292. In United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), this Court dealt with the issue of jurisdiction of the trial court after notice of appeal was filed on the denial of a double jeopardy claim. ² Dunbar held that if a double jeopardy claim was found by the district court to be frivolous, the filing of a notice of appeal would not divest the district court of jurisdiction to try the case.

After a reversal by this Court of defendant's first conviction, 615 F.2d 1080 (5th Cir. 1980), he filed a double jeopardy motion to bar a retrial. Although the trial court denied the motion, it held the claim nonfrivolous. A notice of appeal filed August 1, 1980 suspended the trial. In January 1981, however, the defendant voluntarily dismissed his appeal, and this Court remanded the case for trial without prejudice to defendant's later assertion of the double jeopardy claim. United States v. Bizzard, No. 80-7571 (5th Cir., Jan. 27, 1981). After a new trial was scheduled for April 14, 1981, defendant brought a new double jeopardy motion. This time when the district court denied the motion, it held the claim frivolous.

Although that finding by the district court presents some difficulty because the second motion included grounds previously held nonfrivolous, we think the district court acted reasonably within its authority. On the second motion, the court held an evidentiary hearing not available on the first hearing. The finding of frivolousness applied to all grounds asserted, and therefore modified the earlier ruling to the contrary.

The spirit of Dunbar, if not the letter, would permit the district court to take into consideration the previous procedural activity of the defendant, which would indicate a frivolous approach to the procedural problems in the orderly administration of justice. Clearly the Abney right to appeal before trial can be waived. The double jeopardy claim is not lost for failure to assert it on an interlocutory appeal. Where a defendant notices an appeal, suspends the trial, then dismisses the appeal, we would have no trouble upholding a district court's decision that the Abney right has been waived, that a defendant could not "toy" with the court's processes in this manner and defendant should be left to assert the double jeopardy claim on appeal after trial.

We hold therefore the district court had jurisdiction under Dunbar to conduct the trial.

As to the merits of the double jeopardy claim, defendant makes two arguments: (1) the double jeopardy clause precludes retrial since the evidence in the first trial was insufficient to convict defendant, and (2) prosecutorial misconduct at the first trial bars retrial.

The double jeopardy clause does preclude a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Although argued on the prior appeal, the appellate court neither decided there was insufficient evidence, nor specifically addressed the point. Since the issue was argued in the main brief and specifically asserted on the petition for rehearing, however, the panel must have determined there was sufficient evidence to support the verdict in order to remand the case for retrial. We are bound by that prior panel decision.

This same reasoning disposes of defendant's second double jeopardy argument. The point was argued in the prior appeal and relief was denied.

Even if a prior panel of this Court had not passed on these matters, neither argument could be sustained. The evidence in the prior trial was sufficient, and the prosecutorial action did not rise to the level of misconduct required to bar retrial. See United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485 n.12, 91 S.Ct. 547, 557 n.12, 27 L.Ed.2d 543 (1971). Defendant's motion to dismiss was properly denied by the district court.

Speedy Trial

Defendant's argument that the "thirty-four month delay between defendant's arrest and trial deprived him of his right to a speedy trial and due process of law" is duplicitous. Approximately 28 months of that time were attributable to the appellate procedures initiated by defendant. The time between a conviction and a reversal which requires retrial is clearly not counted for speedy trial purposes. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Neither is the time taken by stays or continuances sought by a defendant. See United States v. Hill, 622 F.2d 900 (5th Cir. 1980). Much of the time consumed before the second trial is attributable to the necessary procedures caused by motions filed by defendant, often on the eve of trial. Defendant evidenced little interest in his speedy trial rights until February 6, 1981. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). He was retried on April 14, 1981. The district court properly refused to dismiss the indictment on speedy trial and due process grounds.

Proof of Federally Insured Bank

To establish federal jurisdiction, the Government had to show that the bank was insured by the Federal Deposit Insurance Certificate (FDIC) at the time of the robbery. The Government introduced the bank's certificate and a check reflecting the payment for insurance coverage existing at the time of the robbery. Proof of the certificate alone was sufficient to establish the bank's insured status where there was no evidence offered by the defendant to the contrary. United States v. Baldwin, 644 F.2d 381, 385 (5th Cir. 1981). A review of the transcript reveals that defendant's argument that the certificate was not properly admitted is frivolous.

Brady Material

Contrary to defendant's position that the court improperly precluded discovery of relevant evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the trial court properly conducted an in camera inspection of an FBI agent's personnel file in response to defendant's discovery request, and determined that nothing in the file would in any way relate to or have any bearing upon the agent's credibility or substantive testimony. Thus the file contained no Brady material, that is, material that would be favorable to the defense or might have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397-2398, 49 L.Ed.2d 342 (1975); Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-2568, 33 L.Ed.2d 706, reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972); United States v. Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978).

Department of Justice Judicial Administration

The district court quashed a subpoena by which defendant attempted to call as a witness a former employee of the Department of Justice. Although defendant was aware of the regulations prohibiting a former Department employee from testifying as to information acquired during the performance of his official duties without prior approval of the...