U.S. v. Shaffer

• Citation: 789 F.2d 682
• Decision Date: 05 May 1986
• Docket Number: No. 85-5127,85-5127
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William SHAFFER, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 682

789 F.2d 682

UNITED STATES of America, Plaintiff-Appellant, v. William SHAFFER, Defendant-Appellee.

No. 85-5127.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1986.

Decided May 5, 1986.

Richard R. Romero, Christine Byrd, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Howard L. Weitzman, Weitzman & Furstman, Santa Monica, Cal., defendant-appellee.

An Appeal from United States District Court for the Central District of California.

Before FARRIS, PREGERSON, and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge.

Appellee William Weitz Shaffer was convicted on several counts of narcotics and income tax violations. The district court granted Shaffer's motion for a new trial, concluding that the government's failure to disclose to Shaffer certain impeachment evidence regarding a government witness violated the rule set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government appeals the district court's decision. We affirm the district court's order granting a new trial.

BACKGROUND

On September 16, 1981, a grand jury returned a superseding indictment charging Shaffer and three other defendants with four counts of narcotics violations and four counts of income tax violations. ¹ The indictment alleged that, from February 1975 to April 1977, the four defendants conspired to import and distribute cocaine.

The government's case against Shaffer rested in large part on the testimony of Robert Durand, an unindicted co-conspirator in the cocaine operation. In May 1980, Durand, in exchange for immunity from prosecution, agreed to cooperate with the government in an investigation into the cocaine operation conducted by Shaffer and the other three defendants. During the investigation of Shaffer, Durand was paid for his expenses in meeting with IRS and DEA agents. In February 1982, Durand was also paid for expenses incurred in traveling to Los Angeles to prepare for Shaffer's trial. During the trial, Durand was also paid for security expenses, and after the trial, he was paid for security and relocation expenses.

During the cocaine investigation, one of Shaffer's indicted co-conspirators, James Hoffman, contacted Durand about a separate heroin operation that Hoffman wanted to conduct. Shaffer was not involved in this new narcotics operation. With the aid of Durand, the government conducted a supplemental investigation into Hoffman's heroin operation from approximately September 1980 to May 1981. During the Hoffman investigation, the government compensated Durand for expenses incurred in meeting with Hoffman. Durand also received money that he paid to Hoffman and another subject for their expenses in setting up the smuggling venture. Therefore, while Durand was testifying in the Shaffer grand jury proceedings, he was also operating as a paid informant in the Hoffman investigation.

Before his trial, Shaffer made a specific discovery request concerning: (1) any promises that the government made to Durand in exchange for his cooperation; (2) Durand's tax returns for the time period charged in the indictment; and (3) internal government memoranda regarding Durand's cooperation. Shaffer also made a general request for all material in the government's possession that was favorable and material to his defense. In response, the government provided Shaffer with a copy of Durand's grand jury testimony and Durand's immunity agreement.

The immunity agreement provided, in essence, that: (1) the government would not prosecute Durand for any of his criminal activity in the Shaffer narcotics operation; (2) any information provided by Durand would not be used by the government against him except in a prosecution for perjury; and (3) Durand would not be subject to any criminal tax prosecution through the calendar year 1981, but the U.S. Attorney would nonetheless notify the IRS about any information relative to any civil audit or investigation of Durand. The government stated that this immunity agreement was the complete agreement with Durand; and that no separate secret or other agreement was made with Durand.

At Shaffer's trial, Durand implicated Shaffer in the cocaine operation. Durand testified, inter alia, about the smuggling trips conducted by the conspirators and the enormous profits realized by Shaffer and the others on the cocaine operation. On May 7, 1982, a jury convicted Shaffer of all eight counts.

Approximately two years after his conviction, Shaffer filed a motion for new trial, pursuant to Fed.R.Crim.P. 33, based on newly discovered evidence. As a result of evidence revealed at an evidentiary hearing on this motion, Shaffer contended that the government failed to disclose to him prior to trial: (1) that Robert Durand was a paid informant in Hoffman's separate heroin operation during the years 1980 and 1981; (2) the full benefits and expense payments that Durand received in exchange for his cooperation in both narcotics investigations; (3) the full extent of assets which Durand acquired through narcotics profiteering; and (4) the fact that the government has failed to initiate any civil tax proceedings against Durand. Shaffer argued that these facts, if used at trial, would have had a substantial effect on Durand's credibility, and would have resulted in Shaffer's acquittal. ²

On February 14, 1985, the same district court judge who presided over the trial granted Shaffer's motion and ordered a new trial. The district court held that "Durand's testimony was critical to Shaffer's conviction ... [and if] the jury chose not to believe Durand, it is quite possible that Shaffer would not have been convicted." The district court further held that the information revealed in the evidentiary hearing, if used at trial, "creates reasonable doubt that would not otherwise exist and certainly creates the reasonable possibility of a material effect on the jury."

On March 11, 1985, the government filed a motion for reconsideration, which was denied by the court on April 29, 1985. On May 28, 1985, the government filed a notice of appeal from both orders. ³

DISCUSSION

A. JURISDICTION

The government asserts that this court has jurisdiction over this appeal pursuant to 18 U.S.C. Sec. 3731. ⁴ The government maintains that its newly acquired right of appeal in section 3731 became effective when the Crime Control Act ["Act"] was signed into law on October 12, 1984. Accordingly, the government claims that this new right of appeal would apply to the district court's order of February 15, 1985, granting the new trial motion.

Shaffer contends, however, that the language amending section 3731 will not take effect until November 1, 1986. Shaffer argues that this amending language is subject to the effective date provision set forth in section 225 of the Act. Section 225 of the Act provides that "[t]his chapter shall take effect on the first day of the first calendar month beginning twenty-four months after the date of enactment [i.e. November 1, 1986]...."

Section 225 was enacted as part of Chapter II of the Act. The amendment to 18 U.S.C. Sec. 3731, upon which the government bases its right to appeal, however, is not found in Chapter II of the Act; the amendment was enacted under Chapter XII of the Act.Pub.L. 98-473, Sec. 1206, 98 Stat. 1837, 2153 (1984). Consequently, Shaffer errs in asserting that the amendment to section 3731 is governed by the November 1, 1986 effective date found in section 225 of the Act.

Because neither the statutory language amending section 3731 nor its legislative history specifically prescribes the effective date upon which the statute was to take effect, this issue must be resolved under general principles of statutory construction. "In the absence of an express provision in the statute itself, an act takes effect on the date of its enactment." United States v. Clizer, 464 F.2d 121, 123 n. 2 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 673 (1972) (citing Arnold v. United States, 13 U.S. (9 Cranch) 103, 119 (1815)); see also United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985) (holding that, absent Congressional intent to the contrary, another section of the Crime Control Act of 1984 became effective upon its enactment on October 12, 1984).

Applying these principles to this case, we hold that 18 U.S.C. Sec. 3731, as amended by section 1206 of the Crime Control Act of 1984, gives this court jurisdiction to hear the government's appeal. See also Nilson Van & Storage, 755 F.2d 362, 364-65, (4th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985); United States v. Draper, 762 F.2d 81, 82 (10th Cir.1985) (citing with approval Nilson Van Storage as the basis for its earlier order which allowed the government to invoke the new provision of section 3731 as the basis for appealing a district court order of October 24, 1984 granting a new trial). ⁵

B. STANDARD OF REVIEW

We review the order granting a motion for a new trial pursuant to Fed.R.Crim.P. 33 for abuse of discretion. United States v. Steel, 759 F.2d 706, 713 (9th Cir.1985) (appellant carries "significant burden" to show abuse); United States v. Falsia, 724 F.2d 1339, 1343 (9th Cir.1983) (same).

C. DISCUSSION

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the failure of the prosecutor to disclose evidence that is both favorable to the accused and material to either guilt or punishment violates due process. "The Brady rule is based on the requirement of due process. Its purpose is ... to ensure that a miscarriage of justice does not occur ... [by requiring the prosecutor] to disclose evidence favorable to the accused that, if supressed, would deprive the defendant of a fair trial...." United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). In decisions after Brady, the Court has also held that evidence impeaching the credibility of a key...