U.S. v. Coleman

• Decision Date: 15 April 1988
• Docket Number: No. 87-1470,87-1470
• Citation: 862 F.2d 455
• Parties: UNITED STATES of America, Appellee, v. Nathaniel COLEMAN, a/k/a "Boo Tee Coleman," Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 455

862 F.2d 455

UNITED STATES of America, Appellee, v. Nathaniel COLEMAN, a/k/a "Boo Tee Coleman," Appellant.

No. 87-1470.

United States Court of Appeals, Third Circuit.

Argued April 15, 1988.

Resubmitted Under Third Circuit Rule 12(6)

Nov. 10, 1988.

Decided Dec. 1, 1988.

Rehearing and Rehearing In Banc Denied Jan. 5, 1989.

Stanley Weinberg (argued), Philadelphia, Pa., for appellant.

Michael R. Lazerwitz (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before HUTCHINSON, SCIRICA and ROSENN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Defendant-appellant, Nathaniel Coleman (Coleman), appeals from a judgment of sentence imposed after a jury found him guilty of violating 18 U.S.C.A. Sec. 241 (West 1969) (Count I), 18 U.S.C.A. Sec. 1503 (West 1984) and 18 U.S.C.A. Sec. 2 (West 1969) (Count II). ¹ Coleman contends that (1) the government violated the guarantees of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding certain evidence from the defendant and that we should either grant him a new trial or bar the prosecution under the double jeopardy clause of the Constitution; (2) the evidence was insufficient to support the guilty verdicts; (3) the government failed to corroborate Coleman's "confession" to its chief prosecution witness, and (4) he is entitled to a new trial on the basis of the prosecution and defense counsels' improper conduct before the jury and on the basis of the government's closing arguments. For the reasons stated below, we will affirm the judgment of sentence.

I.

As a threshold matter, the convoluted nature of the events leading up to this appeal requires us to discuss our jurisdiction. On May 29, 1985, Coleman and Anthony Del Bono (Del Bono) were indicted on the above charges stemming from the death of Nigel Anderson (Anderson). Anderson was found dead in a room at the Crossroads Motel, Whitpain Township, Pennsylvania, on the eve of Coleman's trial in the district court for various narcotics violations. That trial was scheduled to commence on June 2, 1980. Anderson had agreed to act as a confidential informant against Coleman. In September of 1985, Coleman and Del Bono were first tried on the indictment now appealed in the Eastern District of Pennsylvania. As to Coleman, the jury split evenly on both counts of the indictment. The jury was divided with seven guilty votes and five not guilty votes on Count I of the indictment against Del Bono. He was acquitted on Count II. The trial judge declared a mistrial on those charges upon which the jury failed to agree.

A new trial was held in December of 1985. The jury found Coleman guilty on both counts. It found Del Bono guilty only on Count I, the conspiracy charge. The trial court, noting counsels' incessant "bickering and improper actions" and finding a Brady violation, granted Coleman's request for another new trial. However, it denied Coleman's motion for a judgment of acquittal. Citing the lack of evidence supporting the jury's finding that Del Bono had conspired to prevent Anderson from testifying, the district court granted Del Bono's acquittal motion. It denied Del Bono's new trial motion as moot.

Pursuant to 18 U.S.C.A. Sec. 3731 (West Supp.1988), the government appealed the order granting Coleman's motion for a new trial and Del Bono's motion for acquittal. Since Coleman's new trial motion under Fed.R.Crim.P. 33 was untimely, we held that the district court did not have the power to order a new trial. Accordingly, we reversed and reinstated the jury's guilty verdict. United States v. Coleman, 811 F.2d 804, 807 (3d Cir.1987). However, we affirmed the district court's order granting Del Bono's motion for acquittal. Id. at 807-08. The case was then remanded to the district court for sentencing. On remand, the district court sentenced Coleman to a life term of imprisonment on Count I and a concurrent five year sentence on Count II. Coleman appeals the judgment of sentence.

The government's previous interlocutory appeal under 18 U.S.C.A. Sec. 3731 seeking our review of the new trial and acquittal orders did not, at that time, give this Court jurisdiction to consider those other issues Coleman now raises on appeal. United States v. Margiotta, 646 F.2d 729, 734 (2d Cir.1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). Because Coleman has now been sentenced, we have before us a final order and appellate jurisdiction is present under 28 U.S.C.A. Sec. 1291 (West Supp.1988). Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053-54, 79 L.Ed.2d 288 (1984).

Coleman's Rule 33 motion for a new trial was untimely. Accordingly, the district court only had power to consider those issues raised pursuant to his Fed.R.Crim.P. 29 motion for acquittal. Coleman, 811 F.2d at 807. In its answer to Coleman's petition for rehearing, the government chose not to rely on this default and agreed that the new trial issues were open on this appeal. Accordingly, we have considered them, but find they lack merit. ²

II.

Coleman argues that the government's failure to provide him with Brady materials before the first trial bars the second trial under the double jeopardy clause of the United States Constitution. ³ Following the hung jury on both counts of the indictment against Coleman, the second jury found him guilty of all charges. Although the bulk of the purported Brady violations were remedied before the second trial, Coleman contends that the second trial should never have taken place. In other words, the new trial order was insufficient to remedy the prosecutor's misconduct in failing to provide him exculpatory evidence in satisfaction of Brady. This is a legal issue on which our scope of review is plenary.

The constitutional protection against double jeopardy secures a defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). That protection, however, has never been described in absolute terms. The right "is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). ⁴ In the context of prosecutorial misconduct, the double jeopardy clause will not bar retrial "absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982) (emphasis added). Here, assuming arguendo a number of Brady violations prior to the first trial, the double jeopardy clause is not implicated. The prosecutor's withholding of exculpatory evidence from the defendant may only be characterized as an overzealous effort to gain a conviction from the first jury and not as an attempt to subvert Coleman's "valued right" by bringing the case before a second jury. Because the double jeopardy shield against prosecutorial misconduct seeks to deny "the prosecution a more favorable opportunity to convict" the defendant, Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), we do not believe the clause may be invoked to supplement the remedies contemplated by Brady.

The one reported decision on this issue that we have located supports this position, i.e., that the double jeopardy clause may not be relied upon to remedy a Brady violation. The Tenth Circuit, in United States v. Davis, 578 F.2d 277 (10th Cir.1978), rejected a similar request for a double jeopardy remedy to a Brady violation. Following a hung jury, the district court ordered a new trial. On the Brady issue, the court opined:

Assuming arguendo that nondisclosure at the first trial of the note written by Andrus was indeed a violation of the principles laid down in Brady, the most an invocation of Brady could accomplish would be the ordering of a new trial in which the withheld information is fully disclosed. The second trial of Mr. Davis, which is the case on appeal before us, in effect afforded him the new trial remedy prescribed by Brady. In this fact situation, defendants' claim that the second indictment and trial subject Mr. Davis to double jeopardy is simply contrary to long established precedent.

Id. at 280.

Careful scrutiny of Brady and its progeny lend further support to this approach. Brady itself addressed a prosecutor's failure, in a capital case, to disclose to a defendant a co-defendant's admission to commission of the actual homicide. In defining the due process right impinged by the prosecutor's failings, the Court noted that the aim of due process "is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused." Brady, 373 U.S. at 87, 83 S.Ct. at 1197. See also Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982) (touchstone of Brady due process analysis is fairness of trial, not culpability of prosecutor). ⁵ Unlike the double jeopardy analysis, which places a premium upon the defendant's right to one prosecution, due process simply requires that the defendant be treated fairly. The awarding of a new trial to remedy a Brady violation insures that the defendant will be able to make full use of the exculpatory evidence during the subsequent proceeding. Additionally, such a limited remedy furthers the societal interest in prosecuting criminal defendants to conclusion.

In the instant case, Coleman asserts that the government's failure to provide him with certain Brady materials prior to the first trial mandates that we bar the second trial and conviction as violative of the double jeopardy clause. As discussed above, the new trial, ordered as a result of the hung jury, provided Coleman an opportunity to utilize the exculpatory evidence that he contends was impermissibly withheld. At both trials, Haywood Logan...