U.S. v. Higgs

Decision Date05 August 1983
Docket NumberNos. 83-5361,83-5368,s. 83-5361
Citation713 F.2d 39
PartiesUNITED STATES of America, Appellant, v. Walter M. HIGGS; Adrienne Smith; Freeman Barnhill; John D. Kemp a/k/a Tomi; Ivory Cornell Toler a/k/a Mad Dog; Danny Carter; John Davis a/k/a Twenty; Benjamin Upshaw, Appellees. and UNITED STATES of America, Appellant, v. FUNN, Billy, Appellee.
CourtU.S. Court of Appeals — Third Circuit

J. Alan Johnson (argued), U.S. Atty., Paul J. Brysh, Asst. U.S. Atty., Pittsburgh, Pa., for appellants.

W. Penn Hackney, Asst. Federal Public Defender (argued), Pittsburgh, Pa., for Antionette Merida.

William C. Kaczynski (argued), Pittsburgh, Pa., for John Kemp.

Bart M. Beier, Pittsburgh, Pa., for Billy Funn.

Mark Homyak, Pittsburgh, Pa., for Danny Carter.

James B. Wiltse, Pittsburgh, Pa., for Freeman Barnhill.

Stephen Swem, Pittsburgh, Pa., for Ivory Toler.

J. Kerrington Lewis, Pittsburgh, Pa., for Audrey Taylor.

Before HUNTER, HIGGINBOTHAM, Circuit Judges and GILES, * District judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

In these consolidated appeals the government asks us to review a district court order excluding certain evidence in two related criminal prosecutions. Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the district court held that the government was required to turn over to appellees prior to trial the names and addresses of any government witnesses who had been offered immunity and/or leniency for their cooperation, as well as the substance of any promises made to those witnesses by the government. The government, citing evidence of threats to the witnesses' lives, respectfully refused to turn over that information before trial. As a result the district court held that those witnesses would be barred from testifying. The government appealed, contending that the district court erred in requiring them to produce the information under the terms of its order. We hold that, based on the unique circumstances of this case, it was an abuse of discretion for the district court to require disclosure before trial.

I

Appellees were named in two related indictments filed on February 2, 1983, in the United States District Court for the Western District of Pennsylvania. The indictment at 83-10 charged a conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976), and two substantive counts in violation of 21 U.S.C. § 843(b) (1976). The indictment at 83-11 charged a conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846 (1976), and thirty-three substantive counts in violation of 21 U.S.C. §§ 841(a)(1), 843(b) (1976) and 18 U.S.C. § 2 (1976). At arraignment all appellees entered pleas of not guilty. 1

Appellees filed a number of individual pretrial motions including motions containing requests for disclosure of certain evidence by the government. 2 The district court ruled on those motions at a hearing on April 29, 1983. Inter alia, the district court denied appellees' request for the names and addresses of any and all witnesses and potential witnesses that the government intended to call at trial. Transcript of April 29, 1983, at 7-8. It also denied appellees' request for early disclosure of all Jencks Act material, see 18 U.S.C. § 3500 (1976). Transcript of April 29, 1983, at 24. Those rulings are not before us in these appeals.

The district court granted appellees' request for the names and addresses of all intended government witnesses who had been offered immunity and/or leniency for their cooperation, as well as the substance of any grants of immunity, plea bargains, promises, and preferential treatment offered to those witnesses by the government. Transcript of April 29, 1983, at 8. The district court ruled that that information had to be disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Gengler, 574 F.2d 730 (3d Cir.1978). Transcript of April 29, 1983, at 9. The government objected to the court's ruling on the grounds that, assuming any witnesses had entered into any agreements, disclosing their identity and the substance of their agreements would put them in serious physical jeopardy. It requested that the court "delay any disclosure of those matters until such time as we're nearing the point where the witnesses could be called to vitiate any potential hazards that may result." Transcript of April 29, 1983, at 9-10. The district court denied the government's request and ordered the information turned over immediately. Id.

On May 2, 1983, the government filed a motion for reconsideration and in the alternative for a stay of the district court's April 29 order. On May 2, 1983, the district court entered an order stating:

IT IS HEREBY ORDERED that [the government's] Motion is GRANTED insofar as reconsideration is sought, but DENIED insofar as relief is sought. This Court's Order of April 29, 1983, directing the government to disclose immediately the names and addresses of those witnesses with whom the government has entered into plea bargains or made promises of preferential treatment or given grants of immunity and whom the government intends to call at trial, is hereby AFFIRMED. The government's request for a stay is hereby DENIED.

United States v. Funn, Nos. 83-10, 83-11 (W.D.Pa. May 2, 1983) (emphasis in original).

On May 4, 1983, the government filed in our court a motion to stay the district court's April 29 order and a petition for a writ of mandamus directing the district court to vacate that order. The motion to stay was granted until the petition for mandamus could be heard before a full panel of the court. On May 12, 1983, a panel heard argument and issued the following order:

After consideration of the contentions of the parties and oral argument, it is ORDERED that the petition for mandamus is denied.

This order is not to be construed as approval of a practice by a district court to order the disclosure of witnesses identification and statements on a routine basis without consideration of such factors as the possibility of danger to the witnesses or their intimidation. This order is without prejudice to the government's right to apply to the district court for further consideration of its order if there are circumstances to justify that procedure.

United States v. Barnhill, No. 83-3225 (3d Cir. May 12, 1983) (order denying mandamus).

On May 16, 1983, the government filed under seal in district court a motion for reconsideration in light of our order denying the petition for mandamus. It included with its motion a sealed affidavit containing information detailing the potential danger to prospective witnesses if their identities were disclosed before trial. Oral argument on the motion was held on May 16. At that hearing the government made an in camera presentation of testimony concerning threats to prospective witnesses. The district court again affirmed its April 29 ruling and ordered the government to disclose the required information by May 19, 1983. Transcript of May 16, 1983, at 42-44. Trial was scheduled to begin sometime during the week of May 23, 1983.

On May 17, 1983, the government filed a notice of appeal from the district court's May 16 order. See 18 U.S.C. § 3731 (1976). The government then filed in district court a motion to stay pending appeal. That motion was denied on May 19, 1983. The government then sought an emergency stay pending appeal, and that stay was granted by Judge Weis on May 19, 1983. On May 20, 1983, the government sought an emergency stay pending appeal from the full court. That motion was granted on June 13, 1983. We heard oral argument on the merits of the government's appeal on June 15, 1983.

II

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1967), the Supreme Court held that

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Id. at 87, 83 S.Ct. at 1196-97. That rule has been expanded to require that, even though a defendant has not made a specific request for exculpatory material, the prosecutor is under a duty to volunteer evidence "obviously of such substantial value to the defense that elementary fairness requires it to be disclosed." United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). 3 The rule laid out in Brady requiring disclosure of exculpatory evidence applies both to materials going to the heart of the defendant's guilt or innocence and to materials that might well alter the jury's judgment of the credibility of a crucial prosecution witness. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Gengler, 574 F.2d 730, 735 (3d Cir.1978); United States v. McCrane, 547 F.2d 204, 207-08 (3d Cir.1976); accord Perkins v. Le Fevre, 691 F.2d 616, 619 (2d Cir.1982); United States v. Allain, 671 F.2d 248, 255 (7th Cir.1982); United States v. Bruner, 657 F.2d 1278, 1288 & n. 13 (D.C.Cir.1981).

A finding that evidence is exculpatory to the accused does not end the inquiry, however, as Brady only requires that material evidence be disclosed by the prosecution. Gengler, 574 F.2d at 735. In Agurs the Supreme Court analyzed the requirements of materiality in three different situations. First, where the prosecution's case includes perjured testimony and the prosecution knew, or should have known of the perjury, the undisclosed information is material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." 427 U.S. at 103, 96 S.Ct. at 2397. Second, where the defendant has made a specific request for information, any undisclosed information will be considered material if "the suppressed evidence might have affected the...

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