U.S. v. Patterson, 94-4056
| Decision Date | 17 November 1994 |
| Docket Number | No. 94-4056,94-4056 |
| Citation | 41 F.3d 577 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. David A. PATTERSON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard G. MacDougall, Asst. U.S. Atty., Salt Lake City, UT (Scott M. Matheson, Jr., U.S. Atty. and Mark K. Vincent, Sp. Asst. U.S. Atty., with him on the brief), for plaintiff-appellant, the U.S.
Kenneth R. Brown, Salt Lake City, UT, for defendant-appellee, David A. Patterson.
Before HENRY, Circuit Judge, LOGAN, Senior Circuit Judge, and BROWN, Senior District Judge. *
The government contends the district court abused its discretion when it granted a new trial to the defendant-appellee David A. Patterson. We affirm.
David A. Patterson was charged and convicted after a one-day jury trial with possession of a firearm and ammunition, having been previously convicted of a felony, in violation of 18 U.S.C. Sec. 922(g)(1). 1 During jury selection, Patterson's counsel informed the district court and potential jurors that the defense might present Patterson's brother, Carl Patterson, and his wife, Debbie Patterson, as witnesses on his behalf. At trial, when it became time for Patterson to present his case, Carl Patterson was called to testify, but he could not be found. The district court granted a short recess to allow counsel to locate Carl Patterson, but again, he could not be found. Outside the presence of the jury, defendant's counsel reported that Carl had been present at court that morning and intended to testify, and counsel requested the court to continue the case until the witness could be found. The government objected to a continuance unless Patterson could demonstrate that the brother was under subpoena and was required to be present for trial. The district court denied the motion to continue, and the trial went on with Debbie Patterson testifying that she had gone with Carl to purchase the 30/30 rifle in question, and that each put up $100 towards the purchase of the gun. Debbie stated that she took possession of the rifle until Carl could "buy out" her $100 interest, and that she took the firearm to the Patterson residence and placed it in the master bedroom shared by her and David Patterson. She further testified that the pants found in that bedroom belonged to Carl Patterson who had changed from his short pants to a pair of long pants when he left the Patterson residence about 2:00 a.m..
Following the testimony, the jury returned a guilty verdict against David Patterson, who then filed a motion for a new trial together with an affidavit from his brother Carl. Carl stated that he had left the courthouse at lunchtime to go on a personal errand, his truck broke down in Draper, Utah, and he was unable to contact anyone until approximately 5:30 p.m., when he discovered that his brother David had been convicted. In his affidavit, Carl stated that he would have testified that he and Debbie had purchased the rifle together, each paying $100, that she retained possession of it until he could buy out her $100 investment; that Debbie placed the rifle in the Patterson's bedroom, and that the shorts found in that bedroom belonged to him, being left there when he changed clothes upon leaving the Patterson residence.
Following a hearing on the motion, the trial court granted a new trial finding that the absence of Carl could have been prejudicial to defendant because the jury had been told, and was anticipating the testimony of Carl Patterson, and the fact that he did not testify could have created an inference that his testimony would not have been favorable to the defense. In this respect, the court accepted Carl's excuse, giving him the benefit of the doubt, with a finding that Carl may not have been able to find a telephone to call in the news of his breakdown until it was too late. In so ruling, the court specifically found "that in the interest of justice the defendant should be granted a new trial."
In this case, the government has taken the unusual step of appealing a ruling of the court granting a new trial, claiming that the court abused its discretion "by arbitrarily ruling that Patterson could have been prejudiced by the district court's denial of Patterson's motion to continue during trial." The government appears to contend that the trial court could not sustain the motion for new trial since the court did not make any finding that the initial denial of a continuance was an "abuse of discretion."
The government should be aware that a trial judge is not obliged to review his past trial rulings and make an independent judgment that he himself has "abused his discretion" before granting a new trial. The power of the trial court to do so is found in Rule 33, Fed.R.Criminal Procedure, which provides in pertinent part that:
The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice. (Emphasis supplied)
In this instance, the trial judge made a specific finding that in the...
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