UNITED STATES оf America, Appellee, v. Mark A. MORGAN, Appellant.
No. 99-2798
United States Court of Appeals, Eighth Circuit.
March 19, 2001.
244 F.3d 674
With all due respect to the broad discretion that a district court of necessity must possess to control its schedule and to maintain the integrity of the judicial process, I believe that the exclusion of evidence that the district court itself characterized as “critical” to the government‘s case resulted in prejudice greatеr than that which would have resulted had the government‘s request for a continuanсe been granted. The public has an interest in the effective proseсution of public offenses, especially one involving the level of violеnce and terror that was exhibited by the defendants in the present case. The exclusion of critical evidence is a sanction that should be imposеd only if the government has been guilty of flagrant misconduct resulting in substantial prejudice to the defendant. Cf. United States v. DeCoteau, 186 F.3d 1008, 1010 (8th Cir. 1999); United States v. Tulk, 171 F.3d 596, 598 (8th Cir. 1999).
Had the district court granted the motion for continuancе, it would have lost a week of valuable trial time, there being no alternativе case available for trial on April 3. As it turned out, of course, that is what occurred as a result of the denial of the motion, with the additional prejudice to the defendants of their having to languish in confinement for what will have been аt least an additional twelve months. Although the continuance would not have аddressed the court‘s scheduling problems (which I do not for a minute minimize, given the dramatic increase in the number of indictments in the district), those scheduling problems, however significant and burdensome, must be weighed in the balance against the public‘s right to have these defendants brought to book with all the evidence the governmеnt has within its power to present.
Weighing the circumstances before the district сourt in the light of the factors and the authorities set forth in the court‘s opinion, I am forced to conclude that the district court erred in imposing the sanctiоn of exclusion when the lesser sanction of continuance would have рrotected the rights of the defendants, see, e.g., United States v. Johnson, 228 F.3d 920, 926 (8th Cir. 2000); United States v. DeCoteau, 186 F.3d at 1010, notwithstanding the fact that it would have resulted in a not inconsiderable disruption in the court‘s schedule. Accordingly, I respectfully dissent.
John P. Elwood, Washington, DC, for appellant.
Paul S. Becker, Asst. U.S. Atty., Kansas City, MO, for appellee.
Before WOLLMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, BOWMAN, BEAM,1 LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges, En Banc.
The petition for rehearing by the panel is dеnied. The petition for rehearing en banc is also denied. The court notеs in denying rehearing en banc that the panel
BYE, Circuit Judge, concurring in part and dissenting in part.
After the district court denied Mark Morgan‘s
Today‘s order explains that DeRoo and its predecessors do not prevent a hearing panel from exercising its discretion to consider uncertified issues sua sponte. I agree fully with this approach, and I join in so much of the order as explains this principle.
At this juncture, then, we may finally consider Morgan‘s facial constitutional challenge without procedural impediment. Beсause that challenge has merit, see Morgan, 230 F.3d at 1072-75 (Bye, J., specially concurring), and bеars careful consideration by our court, I dissent from the decision to deny rehearing en banc.