USA v. Edwards

• Decision Date: 27 December 2000
• Docket Number: No. 99-30143,99-30143
• Citation: USA v. Edwards, 235 F.3d 1173 (9th Cir. 2000)
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TROY ANTHONY EDWARDS, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1173

235 F.3d 1173 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TROY ANTHONY EDWARDS, Defendant-Appellant.

No. 99-30143

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 6, 2000

Filed December 27, 2000

Peter J. Avenia & Robert H. Gombier, Tacoma, Washington, for the defendant-appellant.

Timothy J. Ohms, Special Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding. D.C. No. CR-97-05101-FDB

Before: Harry Pregerson, Dorothy W. Nelson, Circuit Judges, and Lawrence K. Karlton, District Judge.¹

PER CURIAM:

Troy Anthony Edwards appeals his conviction from his second trial on one count of possession of cocaine with intent to distribute. Because we find that the admission of certain evidence denied Edwards the right to a fair trial, we reverse.

The prosecution of Edwards has been troubled from the beginning. At the first trial, the court admitted a bail receipt linking Edwards to the black bag that contained the cocaine after the bag, which had been introduced as evidence, was removed from the courtroom by a government attorney in violation of Local Rule CR 79(g). At the second trial, the government called a key witness despite repeatedly telling Edwards's attorney and the district court that the witness had refused to testify, and, in any case, could not be found.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 1995, the Tacoma Police responded to the scene of a domestic dispute. The victim, Carbeania Grimes, was bleeding from her forehead and was very upset. She told the officers that her boyfriend, Edwards, had struck her in the head with a gun. Grimes apparently also told the officers that Edwards had left the house with the gun and a black nylon bag. Four officers interviewed Grimes; one of the officers made a tape recording of his interview.

An officer at the scene observed Edwards drive a gray BMW out of an alley that ran next to Edwards's house and back the car into a parking space. Edwards was arrested on the suspicion of assault. Based on the interviews with Grimes, the police impounded the BMW, which was not registered to Edwards. The officers then obtained a warrant to search the car for the gun. Inside the trunk, they found clothes, paperwork, and a black nylon bag. The police opened the bag, which contained no indicia of ownership, and saw baggies of what appeared to be crack cocaine. They closed the bag and then obtained a second search warrant to search it. The search revealed eight baggies of crack cocaine and nearly seven kilograms of cocaine. In the front seat of the car, the police found a folder of legal papers belonging to Edwards, two cellular phones, and material used to package the cocaine. They also found various shopping bags with receipts containing Edwards's name. Neither the receipts nor Edwards's legal papers were ever inventoried by police. They never found the gun.

Edwards was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. SS 841(a)(1) & (b)(1)(A). He initially pleaded guilty, but later moved to withdraw his plea. The district court denied his motion to withdraw the guilty plea, and sentenced Edwards to 240 months in prison. In 1997, the Ninth Circuit vacated Edwards's guilty plea and remanded the case to the district court for trial. See United States v. Edwards, No. CR-95-05021-1-JET, 1997 WL 8579 (9th Cir. 1997) (unpublished opinion).

A. First Trial

At Edwards's first trial on May 5 and 6, 1997, the defense argued that the government had insufficient proof that the black nylon bag containing cocaine belonged to Edwards. During pretrial proceedings, the district court excluded as inadmissible hearsay the statements made by Grimes in her interviews with the police. Because Grimes refused to testify at the first trial, her hearsay statements to the police were the government's only evidence linking Edwards to the black nylon bag found in the trunk of the car.²

The government introduced the black nylon bag into evidence on the first day of the trial. Neither the bag nor its contents contained any fingerprints. A police officer who had searched the car testified that there was nothing in the black nylon bag that established the identity of its owner. The bag and the cocaine were separate exhibits but were contained in a single box, which had been sealed before it was opened and the evidence was introduced. At the end of the first day of trial, the prosecutor instructed another officer to take the black nylon bag out of the courtroom and into the U.S. Attorney's office. This conduct violated Local Rule CR 79(g), which states that "[a]fter being marked for identification, all exhibits, except weapons or other sensitive material, shall be placed in the custody of the clerk during the duration of the trial, unless otherwise ordered by the court." For safety and security reasons, this local rule gives parties custody, during the trial, of "any weapons or other sensitive exhibits." The cocaine was unquestionably a sensitive exhibit, but the bag was not.

At the U.S. Attorney's office, the prosecutor examined the empty bag in the presence of two officers. In examining the bag, he removed a cardboard stiffener in the bottom of the bag. Beneath the cardboard stiffener, he allegedly discovered a wadded up piece of paper. The paper was a bail receipt from the Tacoma Municipal Court with Edwards's name on it. The bag had been in the possession of the Tacoma Police for two years, but the receipt was not discovered until the first day of trial. See Edwards, 154 F.3d at 919. That evening, the prosecutor called Edwards's counsel and informed him that the government would be introducing the bail receipt.

The next day, Edwards's counsel moved to exclude the bail receipt and asked for a mistrial. Defense counsel claimed that his case had been unfairly prejudiced by the alleged discovery of the receipt because the defense theory depended entirely on the contention that there was no evidence linking Edwards to the black nylon bag. Counsel also argued that the prosecutor was injecting himself into the case as the government's chief witness. The district court denied the motion. At the suggestion of the trial judge, a police officer then testified about the bail receipt, acting as if he were discovering it for the first time in the courtroom. On cross-examination, the officer admitted that the prosecutor had found the bail receipt the night before. On re-direct, when the officer was again asked about how the bail receipt had been discovered, he insisted that no one had tampered with the black bag.

The prosecutor did not testify. Neither did Grimes. The prosecutor told the court that Grimes was living in Las Vegas, had been subpoenaed, but was reluctant to testify. The court denied a continuance that would have allowed the government to secure Grimes's testimony. The police conceded on cross examination that they failed to inventory the legal documents contained in the manila folder found in the front seat of the BMW. The failure to inventory those documents raised additional questions about the origins of the bail receipt purportedly discovered in the bottom of the black bag. During closing argument, the prosecutor denied that the black nylon bag had been tampered with and argued that the bail receipt was "the closest thing to a smoking gun that ties the defendant to the bag." Id. at 64. The jury convicted Edwards, and the trial judge sentenced him to 262 months in prison.

On June 23, 1998, the Ninth Circuit reversed Edwards's conviction, finding that "the prosecutor's continued performance of his role as prosecutor in this case violated the principles upon which both the rule against prosecutorial vouching and the advocate-witness rule are based. " Edwards, 154 F.3d at 921. Because the court declined to address the other issues raised, it did not rule on Edwards's argument that the bail receipt should have been suppressed. See id. at 924 n.3. The court concluded "that the prosecutorial vouching in this case warrants reversal of Edwards's conviction because the error cannot be characterized as harmless." Id. at 923. Following this discussion of the vouching rule and the basis for reversal, the panel noted that it did not view the prosecutor's conduct as unethical or improper. Id.

B. Second Trial

A new judge presided over the second trial. The case was re-assigned to an out-of-district prosecutor. Edwards renewed his motion to suppress the bail receipt. At a pre-trial conference on January 8, 1999, Edwards's attorney argued that the bail receipt should be excluded because: (1) the evidence had been illegally obtained in direct violation of Local Rule CR 79(g); (2) it was inherently unreliable; and (3) suppression was an appropriate sanction for government misconduct in the first trial. The district court denied the motion and instructed both parties to prepare a list of witnesses they intended to call. The government left Grimes's name off the witness list and repeatedly informed both the judge and defense that she would not be testifying.

The defense attorney's opening statement at the retrial focused on the bail receipt:

The government wants you to think that this case is about a big bag of dope, but what this case is really about is a little piece of paper. A little piece of paper like this crumpled up. A little piece of paper with Troy Edwards' name on it that was planted in that big bag of dope by the government to fake the evidence that the government didn't have. A little crumpled up piece of paper that says you must acquit Troy Edwards.

The defense explained that the prosecutor at the last trial described the bail receipt as "the smoking gun, " and that absent this tainted evidence the government had no way of determining...