U.S. v. Burns, 81-3133

• Decision Date: 26 February 1982
• Docket Number: No. 81-3133,81-3133
• Citation: 668 F.2d 855
• Parties: 9 Fed. R. Evid. Serv. 1620 UNITED STATES of America, Plaintiff-Appellee, v. William T. BURNS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 855

668 F.2d 855

9 Fed. R. Evid. Serv. 1620

UNITED STATES of America, Plaintiff-Appellee, v. William T. BURNS, Defendant-Appellant.

No. 81-3133

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 26, 1982.

Frank G. DeSalvo, New Orleans, La., for defendant-appellant.

Michael Schatzow, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, RANDALL and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, William T. Burns, was found guilty of one count of conspiracy to distribute cocaine and three counts of possession with intent to distribute cocaine. A major government witness at Burns' trial was Robert Lee Collins. It was his testimony that he had twice travelled to Miami, Florida, with Burns to purchase cocaine from a supplier, Kenneth Linn. He further testified that he travelled two months later with another person, James Worthy, to purchase cocaine on behalf of defendant Burns. His testimony was to the effect that after returning with the cocaine he had delivered it to Burns. Finally, Collins testified he made arrangements by telephone with Linn in Miami for Burns to pay a $5,000 brokerage fee to Collins so that Burns could buy cocaine directly from Linn without going through Collins.

All of this testimony was part of a plea bargain by Collins with the government. Collins was killed four days after the conclusion of the trial when a bomb exploded in his pickup truck.

Burns makes two contentions in this appeal. First, he urges error in the district court overruling a motion for a new trial based upon newly discovered evidence. The newly discovered evidence was that Collins had received psychiatric treatment. Burns urges that the government had had at least a hint of such knowledge but had not pursued it and had not turned such knowledge over to the defense. Second, Burns urges that in two different ways the government prosecutor in closing argument alluded to the fact that Burns had not testified in his own defense.

Adequacy of Notice of Appeal

The court notes on its own motion a preliminary question as to whether Burns has properly raised the newly discovered evidence issue on this appeal. Logically, this question is the matter for first consideration.

Defendant was convicted on March 4, 1981. He filed a timely notice of appeal. But after this notice, on April 7, 1981, he moved for a new trial on the ground of newly discovered evidence. The motion was denied by the district court on June 25, 1981, after a hearing. No second notice of appeal was filed after the denial of the motion for a new trial. The result is that Burns' appeal urging that the district court was in error in overruling the motion for a new trial on the ground of newly discovered evidence has never been made the subject of an appeal notice.

This procedural posture raises two problems. The first is brought about by the wording of Rule 33 of Fed.R.Crim.P. which provides in part: "A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case." Decisions of this court have read the rule literally and have held that the district court does have jurisdiction to entertain such a motion and deny it while an appeal is pending. The rule is read to forbid only the granting of such a motion while the appeal is pending. United States v. Parker, 586 F.2d 422, 435 (5th Cir. 1978); United States v. Fuentes-Lozano, 580 F.2d 724, 725 (5th Cir. 1978). We read these cases as settling the law. The district court did have the authority to deny the motion for a new trial based upon newly discovered evidence pursuant to Fed.R.Crim.P. Rule 33.

The more serious question is whether a second notice of appeal was required in order for Burns to assert error in the denial of his motion for a new trial. The government does not urge that the appeal be denied on the issue of newly discovered evidence in this case. But if this were a jurisdictional matter, of course, the parties could not waive it. It is established in this circuit that timely notice of appeal is not jurisdictional but is a "prerequisite to the exercise of jurisdiction." Sanchez v. Bd. of Regents, 625 F.2d 521, 522 n.1 (5th Cir. 1980). There was, of course, a timely notice of appeal in this case. The only issue is whether the later action of the district court also had to be noticed specifically for appeal. This Court dealt with that issue as demanding only brief attention in United States v. Hersh, 415 F.2d 835, 837 (5th Cir. 1969). In that case the government moved to dismiss the appeal on the ground the appellant had not filed a second notice of appeal from the denial of his motion for a new trial based upon newly discovered evidence. We denied the motion to dismiss without elaboration, but we indicated that appellant's timely brief which dealt with the denial of his motion for a new trial could serve as a substitute for a second notice of appeal. We have such a brief in this case also.

Also lending support to the conclusion that a second notice of appeal is not a prerequisite to the appeal in the principal case is our earlier decision in Richardson v. United States, 360 F.2d 366, 369 (5th Cir. 1966). In that case the Court found a second notice of appeal was not necessary. It based its decision in part, however, upon the fact that the defendant had asserted some of the same grounds in his direct appeal as he had asserted in his motion for a new trial. The Court labeled his motion "hybrid" and held the appeal was properly before the Court. It is accurate to say that the principal case is not hybrid in the same sense since Burns could not have asserted the attack upon the credibility of Collins on direct appeal because no record existed at trial on the issue. The record on that issue was developed solely at the post-trial hearing.

The critical point to be distilled from these cases is that the second notice of appeal is literally a "notice" requirement. Without a showing of prejudice against the government, it would be unreasonable and unfair to refuse to consider an issue which was thoroughly briefed and clearly recognized as an issue by both parties growing out of the criminal trial and its aftermath. Fed.R.App.P. Rule 4(a) is explicit in requiring a second notice of appeal in civil cases if the post-trial motion is one affecting the finality of the judgment. But it is to be noted from this rule, applicable only to civil cases, that only in this one circumstance is a second notice of appeal stated as being required. While it may be desirable for a second notice of appeal to be filed, we must conclude that there is no requirement in the law that this be done to perfect an appeal. The Hersh case states the law of this circuit, and this law is in accordance with the fair and just administration of the laws when no prejudice is shown. See also 9 J. Moore Federal Practice P 204.14 (2d ed. 1980). Appellant was not directed either by Criminal Rule 33 or Appellate Rule 4 to file a second notice of appeal after the denial of the motion for a new trial. We hold that the issue of the correctness of the district court's ruling denying the motion for a new trial on the basis of newly discovered evidence is properly before the Court.

The Motion for a New Trial

Defendant's motion for a new trial urged that since the trial he had learned that the government's main witness, Robert Lee Collins, had received treatment from a psychiatrist and that this information was or should have been known by the prosecutor. The defendant did not disclose how he had learned of this information even though the defense counsel in his opening statement had said that the defendant knew witness Collins.

The facts as developed at the district court hearing on this motion for a new trial show that Burns made a pre-trial discovery request for any and all medical records and information concerning "any confidential informants" including any records which would indicate "alcohol or drug related problems." In response to this request even though Collins was not a confidential informant, the prosecutor asked witness Collins whether he had ever seen a psychiatrist. Collins responded that he had been in group transactional analysis. When asked if the group therapy was for drug or alcoholic problems, Collins responded that it was not-that it was for Collins' own personal problems. He did not state that he had consulted a psychiatrist.

As a preliminary matter it should be pointed out that defendant's motion for a new trial was deficient on its face under the criteria set out in United States v. Rodriguez, 437 F.2d 940, 941 (5th Cir. 1971). Rodriguez lays out the requirements to be met to obtain a trial on the basis of newly discovered evidence: (1) the evidence must be discovered following the trial, (2) facts must be alleged from which the court may infer diligence on the part of the movant to discover the evidence, (3) the evidence must not be merely cumulative nor impeaching, (4) the evidence must be material, and (5) the evidence must be such that a new trial would probably produce a new result. The two deficiencies in defendant's motion were that it did not allege facts about his diligence in his discovering the evidence and also he did not respond to the seemingly overt circumstance that the evidence was merely impeaching.

The district court, however, did not deny the motion on these grounds. It held a hearing and made its decision on the merits. We shall review its decision on the merits. The challenge on the merits is based upon the Brady rule which finds a violation of due process of law in the suppression of material evidence by a prosecutor. Brady v. Maryland, 373 U.S. 83, 83...