U.S. v. Delk

• Decision Date: 18 December 1978
• Docket Number: No. 78-5120,78-5120
• Citation: 586 F.2d 513
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald DELK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 513

586 F.2d 513

UNITED STATES of America, Plaintiff-Appellee, v. Donald DELK, Defendant-Appellant.

No. 78-5120.

United States Court of Appeals, Fifth Circuit.

Dec. 18, 1978.

Joe O. Sams, Jr., William G. Burgin, Jr., Columbus, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Sam D. Knowlton, Alfred E. Moreton, III, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

As will hereinafter be related, the gist of this appeal arises from a disappointed reliance on the United States postal service.

Donald Delk was convicted on two counts of a three-count indictment for receiving, concealing, and storing stolen vehicles, 18 U.S.C. § 2313. He contends that the District Court committed reversible error when it admitted evidence in rebuttal which it had previously excluded from the government's case in chief, Rule 16(a)(1)(C), Fed.Rules Cr.Procedure. We affirm.

On October 7, 1977, Mr. Delk was indicted for three Dyer Act violations. Count 1 described a 1976 GMC pickup; Count 2, a 1974 Mercury Comet; and Count 3, a 1974 Jeep. The GMC pickup had been stolen in Alabama; the other vehicles had been stolen in Illinois. Delk acquired them in Mississippi.

Prior to arraignment, defense counsel filed a written request for general disclosure under Rule 16. As various documents and items of information became available they were mailed to the attorneys during the two months preceding trial.

On Wednesday before jury selection was scheduled to begin the following Monday (January 9) government counsel received from the FBI three automobile vehicle license tag receipts. That same day, copies of the receipts were mailed to defense counsel, who should have received them in Columbus the next day. But the mail moved slowly. On January 9 (Monday), before the letter containing the receipts reached their offices the attorneys left for jury selection in Oxford. Consequently, they did not know of the receipt of the documents.

These tag receipts indicated that each of the Delk vehicles was carrying an improper tag. The receipt for the license tag appearing on the 1976 GMC pickup (Count 1) showed that the tag had not been issued for that vehicle but for a 1974 Ford pickup. The tag receipt for the license tag on the 1974 Mercury Comet (Count 2) showed that the tag had been issued for a 1973 Mercury Comet with a vehicle identification number different to that for the 1974 Comet. Mrs. Sue Delk, appellant's wife, had obtained these two tags in Pickens County, Alabama. The Mississippi tag receipt matching the license tag of the 1974 Jeep (Count 3) showed that the tag had been issued for a 1970 Jeep registered to Timothy D. L. Tyler. In short, all three vehicles in Delk's possession, and the subject of this prosecution, were carrying tags issued for other cars or pickups.

The trial began on Tuesday morning, January 10. When the government attempted to introduce the first tag receipt, defense counsel objected that there had been no disclosure under Rule 16. The Court responded by giving appellant a two hour noon recess in which to prepare evidence and get witnesses to explain the documents. After the recess appellant's attorneys reported that they could not yet offer evidence to counter the documents. The Court offered to delay the case until the next day, but appellant suggested that they continue with the trial, omitting any reference to the tag receipts until the next day. The following morning, however, defense attorneys announced that the additional witnesses with reference to the tag receipts were unavailable and that they were in no better position than they had been the day before. They did not request a continuance.

At this point, although the Court exonerated the government attorney from responsibility for the delay, it did find that the appellant was prejudiced by the failure to disclose, and therefore, excluded the documents as part of the government's case in chief. The Court pointed out, however, that this did not necessarily mean that the receipts could not be used for other purposes.

The government completed its case in chief without the evidence as to the improper tags.

Throughout cross-examination of government witnesses and throughout defense presentation of its case, the essential element offered in defense was lack of Concealment. It was repeatedly emphasized that the vehicles had been regularly and conspicuously used, were never physically hidden, and that numerous people other than the defendant had driven them.

As rebuttal to this "lack-of-concealment" evidence, the government offered the three disputed tag receipts as evidence that the vehicles had been operated while bearing improper tags. Appellant argued that this was improper rebuttal, but the Court overruled the objection and admitted the tag receipts. On surrebuttal, in an effort to negate the adverse inferences raised by the tag discrepancies, the defense adduced three witnesses, Delk's wife, his son, and his son's friend.

After a period of deliberation, the jury sent a note to the Judge, inquiring whether the evidence of an illegal tag could be considered concealment. In response to this the government wanted supplemental instructions giving examples of what constituted concealment. The defense opposed it. In line with the defense position, the Court declined further instructions. The jury returned a verdict of acquittal on Count 1 (the 1976 GMC pickup), but found Delk guilty on Counts 2 and 3. He was sentenced to two years imprisonment on Count 2 and to four years supervised probation on Count 3.

On appeal, Delk does not argue that the proof, if one includes the tag receipt evidence, was insufficient to support the conviction. His plea for reversal is grounded entirely upon the argument that "the lower court erred when it allowed the prosecution to introduce evidence in rebuttal that the prosecution obtained with intention for use in its case in chief without prior disclosure to the appellant. Such action violated the appellant's right to due process."

This argument is based on the specific provisions of Rule 16(a)(1)(C):

Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

In considering and sustaining defense objections to the admission of the tag receipts in chief, the District Court quite correctly perceived the Rule 16(a) (1)(C) nature of the problem and stated from the Bench, "(I)t is unquestionable the documents are damaging to the defendant. No question about that." At another point the Court said, "(I)t would be difficult to conceive that the defendant has not been prejudiced by this failure to make disclosure."

On appeal, then, the question boils down to whether the tag receipts were properly admitted in rebuttal.

In our analysis of this problem we do not consider the favorable testimony which defense counsel had elicited on cross-examination of government witnesses. This is so because it is well settled that the purpose of rebuttal testimony is "to explain, repel, counteract, or disprove the evidence of the Adverse party " (emphasis added) and if the defendant opens the door to the line of testimony, he cannot successfully object to the prosecution "accepting the challenge and attempting to rebut the proposition asserted", Luttrell v. United States, 5 Cir., 1963, 320 F.2d 462, at 464.

We have, of course, carefully read the entire trial transcript. We now give a brief synopsis of the evidence adduced for the defense.

Over a period of several years D. A. Moore had worked part time in Delk's farming operations. He was familiar with the GMC pickup. It was used for many activities on the farm. Many different people drove it. He personally drove the truck all over the "field, Columbus, County, and off to other towns". He saw the truck practically every day and it was never hidden. Delk also had a Ford pickup. The GMC truck was parked at the house, in sight of a well travelled state highway. Mr. Delk, his three sons, and the hired hands drove the Jeep. It was parked in the same place as the GMC pickup. Mrs. Delk used the Comet as a family car most of the time. Its parking place was in sight of the highway.

Leon Brown, Jr., a neighbor, had seen Delk, a Mr. Faggert, Mr. Moore, the Delk children, and "the hired hand" operating the GMC pickup. He had seen the Jeep in the carport and the yard. He had seen the Comet in the carport and the yard. They were easily seen from State Highway 50. About a year after Delk obtained the GMC pickup it had been scratched up and he suggested that Delk have the places repaired and repainted.

The John Deere dealer in Columbus, of whom Delk was a customer, had seen Delk and his sons driving the GMC pickup over an extended period of time.

Hansel Wiygul, a member of the Mississippi Highway Safety Patrol for ten years, was assigned to Highway 50. He knew Donald Delk. He had operated radar speed control out of Delk's yard on the average of once a week for six or seven years. He had seen the vehicles in question. He had never heard that the Jeep was a stolen vehicle. The latter statement was contradicted, however, by another highway patrolman.

James L. Faggert lived across the road from Delk. During the period in question he knew that Delk had a Comet car, a 1-ton Ford, a GMC pickup, a Jeep, a Chevrolet bean truck. He had driven the truck, his son had driven the truck, as well as Delk, his sons, Moore, and Mrs. Delk. The...