United States v. Willie Joseph Causey, Jr.

MILBURN, pack Before KEITH and a red dye in the money they had EDWARDS, Judges, exploded. Circuit and Senior stolen point, At that apparently Judge. Circuit explosion, stunned the robbers in- began side the car to throw money stolen MILBURN, Judge. Circuit out the car’s windows and onto the street. Defendant-appellant Joseph Willie Cau- 17, 1986, April On the defendant and the Jr., sey, appeals his conviction for armed two others who were identified were indict- robbery bank in violation of 18 U.S.C. ed grand jury a federal for the bank 2113(a) (d)(2). principal argu- and The § robbery. A jury trial commenced on June (1) appeal ments on are: whether 11, 1986. Several different witnesses were government’s violation of Rule 12.1 of the provide eyewitness able to identification of Federal Rules of Criminal Procedure man- Causey as the wearing man under the clock trial, (2) prosecu- dates a new whether the Tigers cap. baseball permitted improper tion was to conduct Firestone, Kathleen the bank’s customer impeachment vouching and of its witnesses representative, service testified that she instructions, (3) limiting without whether identify could person standing under prosecutorial throughout misconduct Although the clock. identify unable to trial, (4) Causey the trial denied a fair anyone photo array, in a she was able to pretrial whether the and in-court identifica- positively identify Causey among the three excluded, tions should have been sitting in defendants the courtroom as the Causey whether was denied a fair trial man who stood underneath the clock. joinder because of his with other codefend- Furnari, follow, working Tamara who was ants. For the reasons that we af- morning drive-in window on the firm. of the rob- bery, Causey photograph- selected out of a array, indicating strongly ic that he resem- I. standing bled the man underneath the 21, 1986, a.m., On March at 10:30 four positive clock. was She also able to make a Michigan men robbed the National Bank of by pointing in-court identification out Cau- Macomb, Warren, Michigan. One of the sey among the three men in the courtroom men, Crumbie, Kevin entered the area be- as the robber underneath the clock. cage man, hind the teller while a second identify Two other tellers were able to Aundray Bradley, jumped onto teller coun- Causey photo array, out of a as well as in ter number two. Several witnesses identi- court, standing as the man underneath the man, against fied a third who stood clock. Another teller testified that she was clock, west wall underneath a as defendant get good able to look at the face of the Causey. The man identified as standing holding man underneath the clock wearing Tigers cap a Detroit baseball shotgun, directly in as he stood front pointing shotgun was observed a sawed-off her, pointed Causey man, and she out at those inside the bank. The fourth as the man under the clock. unknown, courtroom identity whose stood in the doorway as a lookout. None of the men’s police investigation A revealed that the any faces were concealed in manner. plate license number taken from the brown After robbery, compact registered Joseph the four men exited car 197Í) through the bank the same Plymouth door from Anderson of Detroit for a entered, taking agents which with them over FBI were automobile. $20,000.00 in They sped away locating cash. the car. After unsuccessful Anderson,

talking agents robber, the FBI knew, found fourth might whom she also the car disabled and absent license child, harm either her or her as he had Anderson, plate. who had known previously threatened her son. She further twenty years, for almost indicated that family indicated that members still were evening had come house talking to her husband and that testi- her looking robbery before the for codefendant mony might not be needed. Bradley, living who was with Anderson at After her husband’s testimony July on the time. 23, 1986, was with at the Bradley Defendants Crumbie and were time of the robbery, prosecution sought together by people, seen a number of both to obtain testimony. Mrs. Jackson’s When day robbery days several prosecutor attempted her, subpoena afterward, driving a brown-colored car and Mrs. Jackson would neither answer possession large money. sums of acknowledge presence door nor day robbery, Causey after the was ob- 24, 1986, officers. day, July The next Cau- served sitting Martin Hall inside a sey’s counsel was notified about Mrs. Jack- parked away car and later driving son. The district court then issued bench defendant Crumbie. warrant had brought and her before the court. attorney object did not 23, 1986, March police

On Detroit arrest- lack of request notice nor Bradley ed continuance. defendant and recovered a paper bag containing a brown revolver and witness, When called Mrs. Jackson Bradley’s telephone identification. A num- claimed she that any remember assigned ber to Anita Jones was written on conversation with the FBI nor conver- the paper bag. exterior of this brown concerning sation what her husband told Jones, Bradley, who knew indicated that testimony, government her. After her the she had not heard from nor seen him in Agent called FBI Harrington, James the However, years. over three proof was in- agent took telephone who Mrs. Jackson’s telephone troduced that used Jones’ call, and he testified as to what Mrs. Jack- as a location number where could have son had told him over telephone. telephone messages taken. We also note from during the record that defense, Causey In his primarily relied alleged course of the threats were upon the alibi Aubrey of Jack- against many made government’s son, who testified that was with witnesses. It was unclear whether the al- the time of at the robbery. leged being threats were by made the un- day before testify, Jackson towas known by bank robber or the defendants. wife, Jackson, Maxine allegedly called threats, As alleged however, a result of the requested FBI and that remind judge Causey’s telephone district had her penalties husband of perjury. for privileges revoked. She further that her stated husband had days After several testimony, told her that he had been informed convicted three ap- all defendants. In this robbery, of the bank and Cau- peal, Causey presents defendant numerous sey given her husband for $50.00 re- indicated, issues for our review. As earlier payment debt, plus of a an additional we find all them to be without merit. allegedly taken in robbery. $100.00 Mrs. Jackson allegedly further stated II. that she family and other members had Noncompliance A. with Rule 12.1 attempted to talk to her husband concern- ing testimony, and that was she claims that the trial court erred certain what her husband intended to in allowing testimony government of a alibi say testify when he was called to on Cau- rebuttal when witness Rule 12.1 of the sey’s behalf. When asked whether or not Federal Rules of Criminal Procedure was she willing would be to testify, Mrs. Jack- technically provides violated. Rule 12.1 responded son that she was part: fearful that the relevant (a) BY THE mony NOTICE DEFENDANT. at the time it given.1 In the Upon attorney demand written timely absence of a proper objection, time, date, government stating Causey’s claim will be reviewed only to the place alleged at which offense extent that it constitutes error under committed, the serve shall 52(b). Fed.R.Crim.P. United States v. days, or at such within ten different .time Ortega-Chavez, Cir. direct, upon as the court the attor- 1982). Wood, noting after that a con- ney government for the a written notice temporaneous objection is generally re- of the defendant’s intention offer a quired, this “[bjecause court held that of alibi. defense Such notice the de- explicit nature of the ob- specific shall state place fendant ligation 12.1, under Fed.R.Crim.P. and be- places which the defendant claims to cause the Supreme Court has ruled that have been at the alleged time of the reciprocal government disclosure offense and the names and addresses of may at least to some extent be constitution- the witnesses whom the defendant ally required rule, in a notice-of-alibi rely intends to to establish alibi. such discussed the merits of defendant’s claim.” government requested has no “[0]nce Wood, (citation 780 F.2d at 560 n. 5. omit- defense, tice of a defendant’s alibi both the ted). However, implicit in our use of the are under a abuse of discretion standard is a Wood duty to disclose the names and addresses recognition judge trial case of its witnesses on the alibi issue.” United was on objection of an notice to the use of Wood, (6th Cir.) alibi rebuttal testimony. This is the curiam), (per cert. way an of abuse discretion standard of (1986). 89 L.Ed.2d 920 Fur review properly could be used. From the ther, parties are also under a con “[b]oth case, present record in the there no tinuing duty ‘promptly’ any to disclose such sort, and, objection any therefore, of the prior discovered during information to or judge trial any objection was unaware of to Wood, 560; trial.” 780 F.2d at Fed.R. the. evidence at the time it was admitted. 12.1(c). Crim.P. any objection kind, the absence of any of failing comply sanction for to pro- willing we are not to find that the trial 12(d), provides vided in Rule which in rele- court sponte should have sua excluded the part: vant any evidence absent indication that failure (d) FAILURE Upon TO COMPLY. plain to do so constituted error. the of party comply failure either to with Plain errors are limited to those requirements rule, the of this court the harmful that are so rank ones that may exclude any the of undis- apparent should have been to the trial closed witness offered party such as judge objection, or without that strike to the pres- defendant’s absence from or fairness, the honesty, pub fundamental ence at the alleged scene of the offense. reputation lic of the trial. United States v. However, provides the rule good that “[f]or Perez, (5th Cir.1981); F.2d also see shown, may grant cause the court an ex- Mendez-Ortiz, F.2d ception requirements of sub- — U.S. (a) (d) through divisions of this rule.” Fed. —, (1987). 94 L.Ed.2d 697 12(e). R.Crim.P. plain doWe not find error. case, present the there is no dis pute government Assuming, arguendo, that we were technical However, ly comply apply with Rule 12.1. Cau- the of discretion of abuse standard sey object Wood, did use of testi- review employed the this court in Thus, Causey’s objection 1. counsel claims that review is limited to the record our objection. made off the record in chambers. the which is If did devoid chambers, judge ruling Causey’s object district motion for his failure to have objection objection new stated trial recalled no noted in the record limits our review being in chambers made J.A. at claimed. to whether or not error was committed. support trial, in the record adequate find for a judge, the new the trial after consid- determination, ruling upon ering circumstances, trial court’s all the found that the for a motion new government first became aware of Mrs. totality that under the circumstances potential Jackson’s as an alibi rebuttal wit- good government had cause for non 22, 1986, July ness on day before her 12.1, and, therefore, Rule compliance with testify. husband was to day, The next noncompliance government’s 23rd, would be government decided to call Mrs. exception pursuant con excused Jackson as a unsuccessfully witness and 12.1(e).2 Initially, Rule tained in we note attempted to subpoena her. The trial court 12.1(d) provides that Rule the trial properly that, concluded as the case was court exclude if there is a moving time, fast at the government comply failure to rule. ex adequate failing cause for to disclose mandatory clusion “is neither nor absolute until morning July 1986. Under every under the United rule instance.” totality circumstances, the trial Carter, (3d court did finding not abuse its discretion in — —, exception an in admitting Mrs. Jackson’s (1986). testimony pursuant 12.1(e). to Rule case, present pro In the notice was Improper Impeachment B. forty-eight vided within hours of the time government became aware of Mrs. The defendant also claims that the potential testimony, Jackson’s judge and within district committed reversible error in twenty-four government’s allowing government hours of the de Agent to call FBI Harrington cision to call her. indi impeach Jackson, record Mrs. being cates that threats were made to wit alibi rebuttal witness. When preclude nesses an effort to their testi Agent Harrington, called mony. situation, In such physical Causey objected grounds on the that this safety protection potential improper witnesses was impeachment because it was proper constitutes a impeachment. However, consideration of a trial “[ujnder Rule determining court in good whether Evidence, cause 607 of the Federal Rules of justify exists to nondisclosure credibility of witnesses of a witness can be attacked opposing to noncompli counsel and thus party, including party calling ance with Rule 12.1. Townsend, See United States ex witness.” United States v. 796 DeRobertis, rel. v. Veal (7th 158, (6th Cir.1986). F.2d 162 Cir.1982). appeal, Causey On argues now that the possible

While it is testimony Agent Harrington was hear- prejudiced by have say been and therefore inadmissible. In es- 12.1, noncompliance sence, with Rule failure argues that as Mrs. Jackson Causey’s counsel to contemporaneously recall, only inability claimed an to the testi- object to the testimony, admission of the mony Agent Harrington was therefore continuance, request failure to technically inconsistent with her state- failure to voir dire prior witness to her ment. That contention is without merit. A testimony, and the fact that no motion judge to “trial has considerable discretion in testimony strike the was made determining militates whether testimony is ‘incon- against any presumption prejudice. prior At sistent’ statements[,]” United hearing Dennis, motion 782, (8th 625 F.2d 795 exercising discretionary power ly its supporting ex- admitted evidence a defendant’s testimony clude the of undisclosed witnesses guilt, (5) for arising other relevant factors out 12.1, violation of Rule "a district court should White, of the case.” United States v. 583 F.2d (1) prejudice consider the amount of that result- the reason 899, (6th Cir.1978) (quoting 902 United States v. disclose, (2) ed from the failure to (5th Myers, Cir.1977), 550 1043 cert. nondisclosure, (3) for the extent to which the denied, 439 U.S. 99 S.Ct. L.Ed.2d 58 harm caused subsequent mitigated by nondisclosure was (1978)). events, (4) weight proper- Cir.1980), and inconsistencies can be misstating found jury permissible its use of changes positions implied through impeachment evidence; (2) si deliberately inability withholding lence or a claimed the identity recall. Unit of a crucial wit- statements; ness and McCrady, 774 F.2d witness ed States v. im- Cir.1985); properly interjecting credibility Rogers, United States v. Attorney’s office in 549 F.2d 495-96 the ex- amination of Maxine Jackson and the sub- sequent impeachment testimony of (1977). Therefore, the FBI L.Ed.2d the district agent. As we already have held that the judge properly testimony admitted the second and third alleged incidents of prose- Agent Harrington reiterating what Mrs. cutorial misconduct improper, were not prior Jackson him as her told statement will now consider prosecutor’s allegedly constituted a statement inconsistent with improper argument. final and, therefore, testimony her proper im peachment. See Fed.R.Evid. 613. argument, final with reference to the defendant, prosecutor stated: Improper Vouching C. PROSECUTOR: He made a statement to Jackson, Aubrey stated, as his wife argues Defendant also that the made a statement that he leading questions robbed a bank. concerning nature of prior inconsistent statement DEFENSE COUNSEL: Objection. which Mrs. Jackson was examined and the There is no statement that he made a Agent later of FBI Harrington statement to his wife. She denied that. improper constituted vouching improp- as it THE COURT: jury has heard the erly put credibility of the United States testimony. Attorney’s office in issue the trial. PROSECUTOR: Defendant Again, the defendant’s counsel did not ob- made a Aubrey statement Jackson. ject to this questioning at Told him that he robbed the bank. Told Therefore, the trial. our review is limited him dye pack about the exploding, he to whether error occurred. told him gave about the chase and he dollars, an extra hundred and that inwas improper vouching “The test March of 1986. He furthermore had a whether reasonably could believe wad of money on him the time. prosecutor indicating per prosecutor sonal belief in the credibility.” improperly argued witness’ im- Dennis, 1029, peachment testimony United States v. substantive fact. (11th Cir.1986)(quoting United States important It is to note that when the Sims, prosecutor misspoke, the defense counsel object grounds on the (1984)). Upon a review of evidence could used impeach be record, we find that the testimony was Mrs. credibility any Jackson’s and not for clearly improper not so vouching that the purpose. substantive “It is this Court’s trial court should have sponte sua moved grounds inveterate rule not to reverse on to exclude the and questioning. not raised in the district court.” United If improper vouching, such did constitute it Contractors, Inc., States v. McDowell 668 impossible any would be 256, (6th witness to be Cir.1982) curiam). (per 257 questioned concerning trial an incon Cardinal, See United States v. 782 F.2d 34, Cir.), (6th denied, sistent statement made to a 36-37 cert. 476 U.S. agent. Therefore, 1161, we find no merit in the 2282, 106 (1986). S.Ct. 90 L.Ed.2d 724 Therefore, defendant’s contention. our review is limited to whether plain

or not error occurred. Id. D. Prosecutorial Misconduct Supreme As the Court noted United

The defendant also 1, 1038, claims that the Young, v. 470 U.S. 105 S.Ct. prosecutor (1985), prop breached the standards of adversary system 84 L.Ed.2d 1 “the prosecutorial er deliberately permits conduct prosecutor ‘prosecute

1284 ” denied, 991, 522, vigor[,]’ prosecutor and a cert. 444 U.S. and S.Ct. earnestness ” “ (1979). long blows’ as as he hard L.Ed.2d 420 ‘strike ” “ Young, foul ones.’ not ‘strike does 7, (quoting Berger E. Testimony 105 S.Ct. at U.S. at Identification 629, States, 295 U.S. 55 S.Ct. v. United argues Defendant also (1935)). criminal convic- 79 L.Ed. 1314 “[A] pretrial procedures employed identification lightly overturned tion is not to be present in the case created likelihood of standing comments prosecutor’s basis of a misidentification which denied him a fair alone, statements or conduct must for the trial. context; only by doing so can viewed be prosecu- whether the determine[ ] [a court] 1. Martin Hall’s Testi- Identification the fairness of the affected tor’s conduct mony 470 U.S. at 105 S.Ct. at Young, trial.” Initially Causey argues that the in-court error, plain Supreme Regarding him by identification of witness Martin Hall plain held that the error rule: Court suggestive single photo was the result of a Appeals the Courts [Authorizes identification and should therefore have egregious “only particularly er- correct Hall, suppressed. been Martin who testi- rors,” “seriously those errors that affect grant fied immunity, under stated that fairness, integrity public reputa- saw an automobile with code- judicial proceedings.” tion of other days fendant Crumbie within a few words, plain exception error to the robbery. This was said to have occurred at contemporaneous objection rule is to be the Hall residence. He further testified solely in those circum- sparingly, “used that he did not know and saw miscarriage justice stances in which a through once before the window would otherwise result.” house, allegedly of his while Young, 450 U.S. at 105 S.Ct. at 1046-47 sitting in parked a car out in the street. (citations omitted). agents, When interviewed FBI Hall de- reviewing alleged prosecutorial mis- agents scribed the vehicle to the FBI error, necessary conduct for “it is mug Causey, was shown a shot of whom he that the error be measured not within the identified as one the men in the car argument narrow confines of the but traveling with codefendant Crumbie. Cau- against the entire record.” United States sey argues single photo that this identifica- Ebens, Cir.1986). v. “To procedure sugges- tion was unnecessarily trial, however, prosecutorial warrant a new tive and the trial court sup- erred pronounced misconduct ‘must be so pressing photographic identification persistent permeates that it the entire at- subsequent ” in-court identification of mosphere of the trial.’ United States v. him Hall. Krebs, (6th Cir.), — Brathwaite, In Manson v. —, U.S. (1977), 53 L.Ed.2d 140 (1986) (quoting United States Supreme United States Court refused to Lichenstein, adopt per se rule that an identification Cir.), single photo based examination of a (1980)). In the graph would be inadmissible at trial. The case, present prosecutor the remark of the Court held that a trial court should adhere isolated, very trial and the court in Big factors articulated Neil v. structed that “the has heard the testi 199-200, gers, 409 U.S. 93 mony,” the S.Ct. implication being clear that the 382-383, (1972), 34 jury to deter testimony would remember what the Therefore, mine whether the identification has indicia although improper, was. dowe reliability such as there is no substantial believe that the isolated remark stand ing irreparable “sufficiently prejudicial alone is rise likelihood of misidentification. Manson, to the level of error.” 432 U.S. at 97 at 2253. United States S.Ct. “ Calandrella, (6th Cir.), sum, question 605 F.2d In is the essential ‘whether then; (4) “totality of the under the circumstances” Hall testify could not to vital descriptive though details of person the identification was reliable even the he saw in automobile; (5) the and on other procedure sugges- the occasions confrontation was ” Hall indicated that he identify could not Tyler, tive.’ United States v. Causey person as the in the car. In re- (6th Cir.1983) Neil, (quoting viewing claims, those we find 378). at U.S. S.Ct. at simply go to weight the testimony the Perini, 723 F.2d 478 Smith v. given should be jury the and do not denied, 466 render the testimony so unreliable as to (1984), we re S.Ct. mandate its exclusion. The record indi- the de single person showup viewed a cates that the vehicle in which Causey was rape fendant from her hos before a victim allegedly sitting was 20 to 30 feet from the bed, two pital after she had been shown window, and Hall’s view was unobstructed photo spreads in which she made one selec looking Further, inside the car. Hall’s de- and a second person tion some other scription of the man in the car was un- selection of the defendant. We held that equivocal very accurate, matching the despite suggestive of the identi nature description defendant, of the including procedure, fication the witness had an inde race, sex, appropriate age, length, hair identification, pendent making basis noticeable facial features such as facial and, therefore, properly the evidence was hair, provide all of which some indicia of “ admitted. We noted that ‘[a] reliability. government provided process only is denied due when the identi convincing clear and evidence that the in- fication evidence is so unreliable that its court origin identification had an indepen- introduction renders a trial As single unfair. dent of showing. See photo long Rose, as there is not a substantial likelihood Marshall v. Cir. 1974). misidentification, it is the function of the jury weight to determine the ultimate to be reviewing After all of the factors ” given Smith, the identification.’ 723 F.2d concerning single identification, photo Bordenkircher, (quoting at 482 Summit v. we conclude that the identification did not (6th Cir.1979)). give rise to a irrep substantial likelihood of Further, arable misidentification. while evaluating reliability of an identifi- Causey point why can to several reasons cation, there are five factors to consider: accuracy testimony ques of Hall’s opportunity of the witness to view [T]he tionable, they go weight we find that crime, the criminal at the time of testimony enough and are not degree attention, witness’ the accura- testimony render the inadmissible. The tri cy of the prior description witness’ properly jury al court allowed the to hear criminal, certainty the level of demon- testimony give Hall’s and to strated at the confronta- witness weight jury proper. whatever deemed tion, length and the of time between the Therefore, Martin Hall’s was crime and the confrontation. Moreover, properly admitted. in view of Neil, U.S. at 382. overwhelming guilt evidence of case, present In the defendant Cau presented against at the trial sey argued single photo identifica error, Causey, any, concerning single if (1) tion was unreliable for several reasons: photo identification would in our view be attempt beyond no made to elicit a harmless detailed a reasonable doubt.3 showing (2) description photo; before 2. Bank and In- Employee Pretrial provide lineup Court photo array; other Hall Identifications saw the person sitting period the car for short argues Defendant bank of time employees’ pretrial and did not know in-court and identifica before overwhelmingly compare photos, identified the bank wit- surveillance robbery holding Causey’s picture, nesses to the as the man which included shotgun. appeared was able to examine in court. excluded, as photographic

tions should have been the the array had beards or robbery length the and the of time between facial hair does not array render the preju- identifications, the coupled with fact that Valenzuela, dicial. See United States v. only a few robbery the lasted minutes and (9th Cir.1983) (a 722 F.2d 1431 photograph black, renders all the robbers were the photo of a defendant in spread a showing unreasonably suspect. identifications Fur wearing him a when moustache bank sur- ther, that he was Causey prejudiced claims photos veillance showed the bandit to be police lineup because did not conduct clean-shaven was impermissibly sug- not identification, photo array and that gestive). The defendant cannot indicate because it only used was defective con what, any, if adverse prejudice inference or beards, wearing suspects tained while Cau- resulted from depiction of him wearing sey claims he did not have one at the time a chain Having around his neck. viewed robbery.4 Finally, Causey of the claims photo array, we conclude that it simply pretrial photo array preju that magnitude is not of such as to draw atten- it dicial because him with a showed small particular tion to that photo. Moreover, chain or necklace around his neck while the question is photo- not whether array others did not have such a graphic array suggestive, is but rather chain. whether it is impermissibly suggestive. United States v. Tyler, We conclude that the trial court (6th Cir.1983). case, photo this properly pretrial admitted and in-court suggestive, much less impermissibly identifications into evidence. A three to suggestive. delay four-month between the crime and the identification does not render the identi Finally, claims inherently fication unreliable. See United eyewitness testimony of the tellers Marchand, (2d States v. 564 F.2d 983 Cir. who were pick unable to photo out of a 1977), 98 S.Ct. array prior to their in-court identification (1978) (nine-month de renders their in-court identifications unrea lay upheld); United States ex rel. Clark v. unreliable, and, sonably therefore, improp Fike, (7th Cir.1976), 538 F.2d 750 cert. de erly admitted. Toney, States v. United nied, 429 U.S. 50 L.Ed. we held (1977) (five-month 2d delay upheld). that: required is not Marchand, lineup, conduct a see The fact that a witness cannot identify and the availability of time for a an accused photograph from a is no rea- lineup plays part no in determining wheth excluding son for identify- er photographic spread impermissibly ing the accused in court. When a man is suggestive. Allison, See actually court, seen in expression, (5th Cir.) curiam), (per glance eyes, from his the movement of be, witness, his facial features to a (1980). Thus, we find nei much convincing more that he has seen ther delay between the crime and the that man before than observations of a identification nor the failure govern photograph accused, taken or ment lineup to conduct a rendered the testi “line-up” views of him at police or mony unreliable. “show-up.”

Further, we find photo prior The failure of the identify witness to graphic array employed was not goes only defective weight to be First, improper. fact people that all accorded testimony, not its admissibility. appears dispute There abe factual robbery as to claims at the time of the he was clean- whether or not the robber identified as photos shaven. the bank surveillance robbery. had facial hair at the time clearly which were also admitted into evidence standing witnesses testified the man under show that facial hair at the time the clock had facial hair. At the time of his robbery. arrest, Causey had similar facial hair.

1287 United, Hamilton, States v. F.2d See 684 United States v. McKinney, 379 F.2d 259 380, (6th Cir.), denied, (6th 383 cert. Cir.1967), 459 U.S. rejected the Fifth Cir- 976, 312, (1982). 103 74 S.Ct. L.Ed.2d 291 cuit’s majority holding in Luna, De holding sum, we find that while certain factors that separate even if held, trials were de- may put accuracy of the identifications fense counsel could not upon comment an- question, the factors are not substantial other defendant’s failure to testify in a enough for us to separate hold that identifica trial. McKinney, 379 F.2d at tions should have been excluded. The 264-65. questions weight go raised to be Defendant Causey argues given that and not to its admissi even if he could not comment on the failure

bility. of one or the other defendants to testify, if Improper F. Joinder tried in separate proceeding one of the codefendants would have given exculpatory The defendant’s final contention is that testimony. a motion for sever he was denied a trial because of fair ground ance on the of absence of a code- joinder with the other codefendants. As a fendant’s must be accompanied general rule, persons jointly indicted should basic, more than a unsupported conteii together. tried be See United States v. tion that a separate trial would afford the Stull, 439, (6th Cir.1984), 446-47 defendant exculpatory testimony. See denied, 1062, 1779, cert. 470 U.S. 105 S.Ct. Butler, United States v. 611 F.2d 1066 (1985). 84 L.Ed.2d 838 When a defendant Cir.), denied, cert. 830, 449 U.S. 101 S.Ct. severance, seeks heavy he has a burden 97, (1980). 66 L.Ed.2d 35 stringent A test showing specific and compelling prejudice, is to be employed in ruling on a motion for and denial of will severance be overruled severance in order to obtain a codefend- appeal only for a clear abuse of discre ant’s testimony. The defendant “must tion. United Bibby, States v. (1) demonstrate: a bona fide need for the denied, cert. (2) testimony, the substance of the testimo U.S. (3) ny, exculpatory effect, its nature and (1986); Licavoli, United v. F.2d that the eodefendant will in fact (6th Cir.), 1051-52 testify if the Butler, cases are severed.” U.S. 104 S.Ct. 82 L.Ed.2d 840 1071; 611 F.2d at United Jack (1984). A request for severance be should son, (8th Cir.), 549 F.2d 517 denied if jury properly compartmen can talize the evidence as it ap relates to the (1977). propriate defendants. We note that A present review Causey’s case is not one of such motion for sever- complexity ance jury provided reveals that no compartmentalize could bona fide need for the testimony, evidence. the trial could not tell went court great degree court which the two and detail to codefendants instruct the would jury take the stand behalf, consider each and testify on his separately, as the and did not charge demonstrate explicitly makes clear. codefendants would have waived their Defendant Causey presents three inde- Fifth Amendment privilege against self-in-

pendent arguments to alleged illustrate the crimination if the case were severed. improper joinder. First, he claims be- Therefore, the trial court did not abuse its cause of the joinder, attorney could not discretion in refusing to grant the motion. comment on the failure of two other testify, defendants to citing De Luna v. Finally, Causey argues States, that his trial should been severed have wherein the Fifth Circuit held that in such from the codefendants of the dis because instance, an it is a trial duty court’s parate danger evidence and the of transfer order the defendants be tried separately. ence of guilt guilt by association. See Luna, De at 141. re- States, Kotteakos United liance De is misplaced. Luna (1946). 90 L.Ed. 1557 How-

ever, is not entitled to a agree a defendant sever- I with the majority that the trial against simply might because the evidence court ance not have been sufficiently prescient to damaging possible objections codefendant is far more than the divine the to Mrs. Jackson’s testimony, against evidence him. As we noted in and that this would have been Warner, an “easier case” if 690 F.2d de United States v. fense objected counsel had to the (6th Cir.1982): on Nonetheless, the record. I believe the that, recognize trial, joint We in a majority misconstrues plain error stan always danger there is jury a dard. Plain error is not predicated upon a convict on the will basis of the cumula- judge’s trial on-the-spot ability to detect an tive evidence rather than on the basis of error at trial the moment it occurs. It is relating the evidence each to defendant. not necessarily an error that causes observ However, view, pre- adhere to the ers instantly gasp recognition. to in The court, viously stated our that “[t]he plain error rule was protect devised to jury presumed capable must be sort- defendant’s rights. substantial The case ing considering out the evidence law is clear analysis centers case of each separately.” degree of injustice defendant, to (citations omitted). presentation Id. degree not the of obviousness judge applicable evidence to more than one de- at the See, time of the error. e.g., United fendant is simply a fact of in multiple life Martin, States v. 757 F.2d Jackson, defendant cases. 549 F.2d at 525. Cir.), 87 L.Ed.2d 636 (plain We errors find that has are which produce those would not met substan significant his very burden dem miscarriage tial justice to the defendant onstrating specific compelling preju corrected); if not 52(b)(plain Fed.R.Crim.P. being dice from tried with his codefend errors affect a defendant’s “substantial ants. against The evidence de various rights”). fendants consisted of substantially the same documents, witnesses and Moreover, and there Wood, United States v. proof was of the defendants’ working to Cir.), 559-60 n. 5 cert. de gether. Further, nied, the trial fully court in structed to (1986), consider defend L.Ed.2d 920 this court noted that ants individually. Therefore, “the explicit the trial nature of the court obligation its under failing abuse discretion in Fed.R.Crim.P. 12.1” grant trump the lack objection defendant’s motion for sever defendant. ance. I believe that the admission of the was error because the fail ure to disclose this rebuttal alibi witness III. solidly strikes at the fundamental fairness Accordingly, stated, for the reasons trial, of this where the defendant relied judgment of the district court is AF- exclusively on an alibi defense. See Unit FIRMED. ed Mendez-Ortiz, States v. — U.S.—, KEITH, Judge, concurring (1987); Circuit part, Perez, part: dissenting (5th Cir.1981). I concur in portion majority I believe opinion also that the trial court abused which finds that there no im- was its discretion in determining proper impeachment identification, or government was excused noncompli- from prosecutorial other misconduct. ance Rule “good 12.1for cause” under as I believe the majority erroneously re- exception to the Rule articulated in question solves the govern- of whether the 12.1(e). ment’s violation of Fed.R.Crim.P. 12.1 was plain error and warrants a new I First, government admitted on dissent. record that it could think of no excuse for its failure to alert defense counsel to Mrs. remained Myers, unabated.” 550 F.2d at testimony. rebuttal When Jackson’s Defense counsel deprived of the given, why court asked no notice was opportunity Jackson, to interview Mrs. replied, attorney assistant United States reassess Mr. Causey’s story light Honor, I “your really say. I don’t can’t evidence, additional to re-evaluate his trial part.” oversight my know if it This strategy, and most importantly, to recon- court should not absolve sider his put decision to Mr. Jackson on the conveniently “oversight” violates stand. See This prejudice id. judi- rule results in conviction. The most fundamental sort: the defense coun- accomplice an ciary not be made should sel had absolutely no opportunity pre- indiscretion. prosecutorial this pare for the bombshell that was to blow his ego apart.

Second, post-trial stage it was at the proceedings government judge gave The trial as another reason to post justify its ex reasons to molded facto justify give the failure to notice the fact its of Rule 12.1. I violation believe these that certain witnesses the case had re- are rationalizations too feeble and too late. so, ceived threats. Even the trial court majority approvingly The granted could have protective observes order for provided notice to defendant was within Mrs. Jackson she actually if felt threat- forty-eight ened; govern- hours of the time the protective orders daily are a occur- ment aware of Mrs. Jackson’s became testi- Moreover, rence in criminal trials. there is mony. days long Two is a time the life no evidence particular that this witness had of a attorneys where the rooted in are received threats. the same small courtroom and are con- I Because do not believe this court stant contact. It would have taken little should condone the conve- time or effort for the to have “oversight,” nient I believe the violation of Rule, complied simply with the by mention- Rule 12.1 mandates a new trial. ing to defense counsel—either court dur- Accordingly, I respectfully dissent. ing day’s trial, evening or in the via a phone three minute call—that it was at-

tempting bring Mrs. Jackson Instead,

stand.1 ap- defense counsel was

prised of Mrs. Jackson’s

just prior to when the witness took prosecution

stand. The knew too well that WHITESIDE, Frederick W. Mr. solely case rested alibi Plaintiff-Appellee, defense, and by bringing Mrs. Jackson witness, as surprise decimat- were ing defense. SECRETARY OF HEALTH & HUMAN majority does attempt to recon SERVICES, Defendant-Appellant. opinion cile with their holdings in Unit No. 86-6109. (5th ed Myers, States v. 550 F.2d 1036 Appeals, United Court of appealed, later 572 F.2d 506 Sixth Circuit. Cir.), (1978), Argued May 1987. White, Cir. Decided Dec. 1978). cases, In those the courts found provide error the failure to of an notice Here, in Myers, prej alibi “the witness.

udice to the defense was substantial government argues

1. The that it should be ex- the alibi witness and does not excuse notice requirement from the because cused it was hav- simply because a witness is somehow indis ing difficulty subpoening Mrs. This Jackson. White, 899, 902 posed. United States v. expressly has held that circuit Fed.R.Crim.P. (6th Cir.1978). only requires "identity” 12.1 disclosure of the

Case Details

Case Name: United States v. Willie Joseph Causey, Jr.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 25, 1988

Citation: 834 F.2d 1277

Docket Number: 86-1992

Court Abbreviation: 6th Cir.