John Robert Lee v. United States

388 F.2d 737, 1968 U.S. App. LEXIS 8278

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 1968
• Docket: 21469_1
• Status: Published

Opinions

MERRILL, Circuit Judge.

Appellant was convicted of bank robbery and has taken this appeal from judgment. The sole question presented is whether the District Court erred in denying motion for new trial sought by appellant upon the ground that the Government deliberately concealed evidence which might clearly have operated in his favor.

If there had been such concealment appellant’s right to due process had been violated and he was entitled to new trial. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965).

Upon trial the principal issue was that of identity. Appellant was identified as the robber by two eyewitness bank employees.

On motion for new trial appellant recited that prior to trial the trial judge had ordered Government counsel to disclose to appellant at the close of the Government’s case the identity of any witness favorable to his case and to produce such person at his request. Appellant showed by affidavit of his counsel that following submission of the case to the jury Government counsel had advised appellant’s counsel that at about the time of the robbery a witness had observed a person vaulting a high fence behind the bank. The affidavit stated further, “Said Assistant United States Attorney declined to further identify the witness.” Thus there was both a general pretrial request for favorable evidence in the hands of the Government and a specific request for the identity of this witness when his existence became known. We therefore need not consider what the duty of the prosecutor might have been in the absence of such a request. See Giles v. State of Maryland, 386 U.S. 66, 102, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964).

The Government did not dispute appellant’s allegations. In opposition to the motion for new trial it represented simply that the evidence was not favorable to the defendant and that for this reason it was under no duty to reveal the identity of the witness. In sole support of this position it stated, “In fact, the observer was a ten-year-old boy, (now eleven) who stated that he ‘was not positive whether he ran down the alley, up the alley, or jumped over the fence.’ ”¹

Upon a motion for new trial based upon nondisclosure of evidence (as distinguished from one based on newly discovered evidence) the precise issue is what the Government had learned from the witness in question (and whether this should have led it to disclose his identity) rather than what this witness might now state under examination by the defendant.

In the typical case of nondisclosure the nature of the suppressed evidence is known to the defendant and is presented by him upon his motion. It is here argued that such a showing is .necessary if the defendant’s burden of establishing lack of due process is to be met and that such a showing was not made here.

To require a showing in every case of just what it was that the Government learned from a witness casts too heavy a burden on a defendant. In our judgment, where identity is at issue and the defendant has shown that the Government has failed to disclose the existence of an eyewitness to the crime itself, or to entry upon or flight from the scene of the crime, and persists in refusal to name the witness, the defendant’s initial burden of showing the nature of the suppressed testimony has been met by inference. It is then incumbent upon the Government to rebut the prima facie case of the defendant by disclosing the nature of the potential testimony as communicated to it at the time of trial.²

We leave to the District Court the question of what should constitute a sufficient governmental showing in this respect — whether the witness need be produced to test the accuracy of the Government’s representations as to what it had learned from him,³ and, if so, whether his examination should be in open court or by the court in camera.

Under the circumstances it is our judgment that thé order denying motion for new trial should be set aside and that further hearing on the motion should be held.

It is so ordered.

1 . We do not have before us a transcript of the hearing on motion for new trial. Appellant designated the transcript of that proceeding as part of his record on appeal. Apparently he has been unable, after diligent effort, to secure that transcript. Either it was unreported or the reporter’s notes have been lost.

2 . Here the only showing by the Government which appears in the record relates not to the witness’s ability to identify the person observed, but rather to his ability to specify the course of that person’s flight from the scene.

3 . The value of disclosure and production may in some cases be outweighed by legitimate interests of the prosecution, such as protection of the witness from intimidation by the defendant or preservation of undercover anonymity.