U.S. v. Wills

• Decision Date: 26 June 1996
• Docket Number: No. 95-10054,95-10054
• Citation: 88 F.3d 704
• Parties: 44 Fed. R. Evid. Serv. 1357, 96 Cal. Daily Op. Serv. 4720, 96 Daily Journal D.A.R. 7519 UNITED STATES of America, Plaintiff-Appellee, v. Eural WILLS, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 704

88 F.3d 704

44 Fed. R. Evid. Serv. 1357, 96 Cal. Daily Op.

Serv. 4720,

96 Daily Journal D.A.R. 7519

UNITED STATES of America, Plaintiff-Appellee, v. Eural WILLS, II, Defendant-Appellant.

No. 95-10054.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1996.

Decided June 26, 1996.

Paul B. Meltzer and Rosemarie Braz, Law Offices of Paul B. Meltzer, Santa Cruz, California, for defendant-appellant.

Robin L. Harris, Assistant United States Attorney, San Francisco, California, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Fern M. Smith, District Judge, Presiding. D.C. No. CR-94-00007-FMS.

Before: ALARCON, BEEZER, and RYMER, Circuit Judges.

ALARCON, Circuit Judge:

We must decide whether evidence that a witness is threatened with injury is sufficient to justify a delay in the disclosure of her identity. We hold that evidence that a witness' safety is threatened constitutes good cause to grant an exception to the disclosure requirements of The Notice of Alibi Rule. Fed.R.Crim.P. 12.1.

Eural Wills, II seeks reversal of the judgment on several grounds. We reject each of these contentions and affirm the judgment. We vacate the five year concurrent sentence imposed by the court because of the jury's finding that Wills used a gun during a crime of violence. This court has jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.

I

In the early morning of October 15, 1993, a masked robber dropped through the roof of the Martinez, California branch of the Bank of America. The robber was armed with a handgun. He carried a backpack. He communicated with an accomplice on the roof through a "walkie-talkie."

Responding to the emergency call of a bank branch manager who had escaped from the bank, police officers arrived at the scene of the crime as the robbery was occurring. Upon learning from the accomplice on the roof of the arrival of the police, the robber fled through the rear exit of the bank. The accomplice threw an incendiary device at the officers. It exploded on impact. At this point, the robber fired at the police. The officers shot their weapons in response. The robber escaped by jumping over a fence. The accomplice also escaped. Lisa MacPheators was waiting in an adjacent residential neighborhood in a Jeep Cherokee which had been rented by Wills. She drove Wills from the scene of the crime. The robber stole $35,760 in $20 denominations.

On January 5, 1994, a federal grand jury returned a five count indictment against Wills. Wills was charged with conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371, armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d), using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), using a destructive device during a crime of violence in violation of 18 U.S.C. § 924(c), and attempt to escape from custody in violation of 18 U.S.C. § 751(a). On the same day, Wills pled not guilty to each of the five counts. Trial commenced on September 12, 1994. After a seven day trial and an additional four days of deliberation, the jury found Wills guilty of the first four counts and not guilty of the attempted escape charge.

II

Wills contends that the district court "abused its discretion in finding 'good cause' to permit the government to withhold Ms. MacPheators from its alibi rebuttal list and witness list." A district court's decision to grant an exception to the disclosure requirements of Rule 12.1(e) is reviewed for abuse of discretion. United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir.1980), cert. denied 450 U.S. 1043, 101 S.Ct. 1763, 1764, 68 L.Ed.2d 241 (1981).

On January 20, 1994, pursuant to Rule 12.1(a) of the Federal Rules of Criminal Procedure, ¹ the Government asked Wills to provide the names of any witnesses upon whom he intended to rely to establish an alibi. Five months later, after numerous extensions granted by the district court, on May 12, 1994, Wills provided the name of one alibi witness.

On June 23, 1994, the Government filed an ex parte application under seal pursuant to Rule 12.1(e) ² seeking relief from its obligation to disclose MacPheators' identity to the defense. ³ The request was based on the Government's concern that MacPheators would be harmed if her identity as a Government witness became known to Wills. A Federal Bureau of Investigations ("FBI") report attached to the application stated that MacPheators was concerned about her safety if she were called to testify. ⁴ In its application, the Government described the violent conduct of the perpetrators of the bank robbery, which included the firing of a weapon and the detonation of an incendiary device. The Government also relied upon facts showing that Wills conspired with others to effect his escape from custody at the Federal Detention Center at Pleasanton ("FDC Pleasanton"). In addition, the Government apprised the court of its attempt to determine MacPheators' suitability for the Witness Protection Program. The court was informed that this process takes several months.

On June 29, 1994, the district court signed an order, filed under seal, relieving the Government of any obligation to disclose MacPheators' identity to the defense until further order of the court. On August 26, 1994, the Government filed a sealed status report. The Government reported that MacPheators would not participate in the Witness Protection Program. Accordingly, alternative arrangements for MacPheators' safety were being made. The court was also informed that MacPheators' name would not be included on the Government's pretrial witness list. The Government advised the court that it would disclose MacPheators' identity at the pretrial conference.

The Government disclosed its witness list to Wills on August 31, 1994. MacPheators name was not on the list. On the afternoon of September 7, 1994, the Government sent a facsimile to Wills' counsel informing him for the first time that it intended to call MacPheators as a witness, and that she would testify in its case-in-chief. On September 9, 1994, Wills moved for a continuance of the trial date based on the Government's delayed disclosure of MacPheators' identity. The district court denied the motion. It ordered the Government not to call MacPheators as a witness until September 19, 1994, however, to give Wills time to investigate MacPheators.

We have not previously addressed the question whether a court may permit the Government to delay disclosure of the identity of a witness whose safety is at risk. Only two other circuits appear to have commented upon this issue. ⁵

Wills argues that the Government failed to present sufficient evidence that he could have harmed MacPheators. The record belies this contention. The Government presented facts that demonstrated that Wills orchestrated a conspiracy to effect his escape from imprisonment at FDC Pleasanton. The conspiracy involved the procurement of weapons by Wills' brother and the "tak[ing] out" of a prison guard. Wills pled guilty before Judge Fern M. Smith to conspiracy to escape from prison as charged in a separate indictment. Thus, Judge Smith was familiar with facts that support the inference that Wills, although in custody, was capable of inducing others to commit crimes on his behalf. The district court did not abuse its discretion in finding that good cause existed to authorize the Government to delay disclosure of MacPheators' identity.

Wills also maintains that the district court erred in conducting an ex parte proceeding before ruling on the Government's request for a delay in the disclosure of MacPheators' identity. Rule 12.1(e) is silent as to the nature of the proceeding required to grant an exception.

Wills cites United States v. Thompson, 827 F.2d 1254, 1258 (9th Cir.1987) to support the proposition that ex parte proceedings are disfavored. Wills' reliance on Thompson is misplaced. We reasoned in Thompson that "situations where the court acts with the benefit of only one side's presentation are uneasy compromises with some overriding necessity, such as the need to act quickly or to keep sensitive information from the opposing party." Id. at 1258. Here, the record shows that an ex parte proceeding was required to prevent Wills from learning that MacPheators was going to testify against him. The district court did not abuse its discretion in conducting an ex parte proceeding to determine whether good cause existed to believe that a delay in the disclosure of MacPheators' identity as a Government witness was necessary to protect her from harm.

III

Wills next argues that the district court abused its discretion by denying his motion for a continuance of the trial in order to complete his investigation of MacPheators. " 'The decision to grant or deny a requested continuance lies within the broad discretion of the district court, and will not be disturbed on appeal absent clear abuse of that discretion.' " United States v. Gonzalez-Rincon, 36 F.3d 859 (9th Cir.1994) (quoting United States v. Flynt, 756 F.2d 1352, 1358, amended, 764 F.2d 675 (9th Cir.1985)), cert. denied, 510 U.S. 878, 115 S.Ct. 1323, 131 L.Ed.2d 203 (1995). " 'To reverse a trial court's denial of a continuance, an appellant must show that the denial prejudiced [the] defense.' " Id. (quoting United States v. Lewis, 991 F.2d 524, 528 (9th Cir.), cert. denied, 510 U.S. 878, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993)). "A trial court clearly abuses its discretion only if denial of the continuance was arbitrary or unreasonable." United States v. Torres-Rodriguez, 930 F.2d 1375, 1383 (9th Cir.1991).

Wills has not demonstrated that the refusal to grant a continuance prejudiced his defense. Wills' investigator discovered that MacPheators' boyfriend was on felony probation at the time of the bank robbery. This information provided defense counsel with the only defense offered at trial. Wills' attorney...