U.S. v. Nevels

• Citation: 490 F.3d 800
• Decision Date: 06 June 2007
• Docket Number: No. 06-1240.,06-1240.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clemmeth D. NEVELS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

490 F.3d 800

UNITED STATES of America, Plaintiff-Appellee, v. Clemmeth D. NEVELS, Defendant-Appellant.

No. 06-1240.

United States Court of Appeals, Tenth Circuit.

June 6, 2007.

Neil MacFarlane, Westminster, CO, for Appellant.

Joshua Stein, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, for Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Clemmeth D. Nevels was convicted of two federal firearm possession charges in March 2006 and was sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1). On appeal, Nevels makes three arguments. First, he alleges that the disclosure of a government witness's existence three days prior to trial denied him a fair trial. Second, he contends that the government's introduction of expert testimony describing how he shot and killed an individual in his home was unfairly prejudicial in a firearms possession trial. Third, he asserts the district court erred in determining that one of his prior juvenile delinquency adjudications constituted a predicate offense under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).

We take jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and AFFIRM.

I. Background

Before dawn on January 11, 2004, Clemmeth Nevels made a 911 call requesting assistance at his Denver residence. Police found Nevels leaning against a car parked across the street from his house. He first identified himself as "Michael" and told the police that he discovered an intruder in his house. After revealing his true identity, he told the police that the intruder had a gun and said, "I think there's a body inside." ROA, vol. XIII, at 172. One officer testified that Nevels became agitated and angry at some point and that officers handcuffed him for their safety. Another officer heard Nevels claim, "I'm the shooter, there will be gun powder on my hands, it's my house, and I had to do what I had to do." Id. at 232.

Inside the house, the police discovered the body of Terrell McLamb on the couch. He had been shot seven times at short range and died on the way to the hospital. On the couch next to McLamb's left hand was a Ruger P89 semi-automatic pistol with an extended magazine. The chamber was fully loaded and had not been fired.

Another pistol was recovered in the same vicinity. This was a Ruger P95 semi-automatic pistol, with its serial number sanded down. This pistol had a 10-round magazine with two rounds remaining—one in the chamber and one in the magazine. Police discovered multiple bullet fragments and spent bullets. They all matched the P95 pistol. The police arrested Nevels at the scene.

The state subsequently charged Nevels with first degree murder and weapons possession by a prior offender. The charges were later dismissed in favor of two federal charges: (1) one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), and (2) one count of possession of a firearm with an altered serial number, in violation of 18 U.S.C. § 922(k). After a four-day trial, a jury convicted Nevels of both counts.

Since Nevels had two prior juvenile delinquency adjudications and one adult felony conviction, the district court found him to be an armed career criminal under 18 U.S.C. § 924(e)(1). The court sentenced him to 300 months on the first count and 60 months on the second, to be served concurrently.

II. Analysis

Nevels alleges three claims challenging his conviction and sentence. We find each without merit.

A. Pretrial Disclosure of Witness's Identity

Nevels first claims the district court erred in permitting the testimony of a witness who was disclosed to the defense just prior to trial. We review the admission of testimony from an unlisted government witness for abuse of discretion. United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir.1992).

The government learned of the existence of Shelly Barnett, Nevels's ex-wife, on Friday, March 3, 2006—three days before the beginning of trial. Based on an interview, prosecutors believed she would testify that she had seen Nevels with an identical semi-automatic pistol two weeks before the shooting and that Nevels and the victim were close friends. The government notified Nevels's defense counsel about Barnett's existence, her expected testimony and known impeachment information by email within an hour of her interview. The government also filed a formal notice with the district court on Sunday, March 5, the day before the trial was to begin. At the beginning of trial on March 6, Nevels's counsel objected to Barnett's testimony, claiming that the defense had no opportunity to investigate Barnett or her story. The district court found no violation of Federal Rule of Criminal Procedure 16's disclosure duty and permitted the government to introduce Barnett as a witness. Nevertheless, the district court ordered the government to make Barnett available for the defense to interview that day. Barnett testified two days later on March 8—six days after Nevels's attorney was first notified she would testify.

"It is settled law in this circuit that, in the absence of a statutory or constitutional requirement, ... there [is no] requirement that the government disclose its witnesses in any manner, except in a case where trial is for treason or other capital offense." United States v. Baca, 494 F.2d 424, 427 (10th Cir.1974) (permitting government to conceal the name of an informant until trial); see also Sturmoski, 971 F.2d at 458 (finding no prejudice from an undisclosed government witness); Moore's Federal Practice § 616.02[3][a] ("[A] defendant in a noncapital case has no absolute right to obtain the names of government witnesses before trial.").

The Supreme Court has established that no constitutional right to pretrial discovery of witnesses exists in non-capital cases. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (holding that a defendant in a non-capital case has no right to discover lists of prospective government witnesses); see also United States v. Russell, 109 F.3d 1503, 1510 (10th Cir.1997) ("In noncapital cases, moreover, there is no constitutional right to the pretrial disclosure of witnesses."). As Weatherford states, "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded." 429 U.S. at 559, 97 S.Ct. 837. Neither does this amount to a Brady violation since Barnett would not exculpate Nevels. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring pretrial disclosure of exculpatory evidence in the possession of prosecutors).

No statute or rule, moreover, requires pretrial disclosure of non-expert witnesses. Federal Rule of Criminal Procedure 16 provides limited discovery obligations on behalf of prosecutors. But it does not entitle defendants to discover the identity of government non-expert witnesses before trial. Russell, 109 F.3d at 1510. Under Rule 16(a)(2), a defendant may only discover statements made by prospective government witnesses as provided under the Jencks Act, 18 U.S.C. § 3500 (1976). The Jencks Act entitles a federal criminal defendant to obtain any pretrial statement and report made by a government witness, but only after the witness has testified on direct examination at trial. United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 451 (10th Cir.1984). Furthermore, the parties do not contend that Barnett was an alibi witness, thereby implicating the disclosure requirements of Rule 12.1. See United States v. Pearson, 159 F.3d 480, 483-84 (10th Cir.1998).

Accordingly, in the absence of a court order,¹ the government was under no legal obligation to disclose Barnett's identity prior to trial. In fact, the government acted commendably in promptly informing Nevels's counsel about Barnett as soon as it learned of her potential testimony.

Nevels also asks us to apply the three factor test for assessing the propriety of court sanctions for discovery violations found in United States v. Wicker, 848 F.2d 1059 (10th Cir.1988) and United States v. Combs, 267 F.3d 1167, 1179 (10th Cir. 2001), to overturn the district court's decision. He argues that we should examine: "(1) the reason for the delay in disclosing the witness; (2) whether the delay prejudiced the other party; and (3) the feasibility of curing any prejudice with a continuance." Combs, 267 F.3d at 1179; see also United States v. Martinez, 455 F.3d 1127, 1130 (10th Cir.2006); United States v. Muessig, 427 F.3d 856, 864 (10th Cir.2005).

But the government committed no discovery violation here. In any event, the record does not support the extreme sanction of excluding Barnett from trial. First, the government did not delay in disclosing Barnett nor does the record support the allegation that the late discovery of Barnett was the result of a lack of diligence on the government's part. Second, Nevels has failed to establish prejudice from the late disclosure. See Sturmoski, 971 F.2d at 458 (analyzing whether a "surprise witness" was prejudicial). He was allowed to interview the witness prior to her testimony and was able to cross-examine her effectively at trial. Nevels has pointed to nothing specific about Barnett's testimony or background that suggests additional time would have been helpful. While perhaps given enough time Nevels may have discovered helpful information for impeachment purposes, on this record we are left only with speculation and conjecture that such information exists. Indeed, Nevels was able to elicit testimony that Barnett had a warrant for her arrest on the charge of false reporting or providing false information to the police.² Finally, Nevels never asked for a continuance of the trial.

Consequently, we find no abuse of discretion in the district court's decision to permit Barnett to...