United States v. Willie Joseph Causey, Jr.

KEITH, Circuit Judge,

concurring in part, dissenting in part:

I concur in the portion of the majority opinion which finds that there was no improper impeachment or identification, or other prosecutorial misconduct. However, as I believe the majority erroneously resolves the question of whether the government’s violation of Fed.R.Crim.P. 12.1 was plain error and warrants a new trial, I dissent.

I agree with the majority that the trial court might not have been sufficiently prescient to divine the possible objections to Mrs. Jackson’s testimony, and that this would have been an “easier case” if defense counsel had objected to the testimony on the record. Nonetheless, I believe the majority misconstrues the plain error standard. Plain error is not predicated upon a trial judge’s on-the-spot ability to detect an error at trial the moment it occurs. It is not necessarily an error that causes observers instantly to gasp in recognition. The plain error rule was devised to protect a defendant’s substantial rights. The case law is clear that the analysis centers upon the degree of injustice to the defendant, not the degree of obviousness to the judge at the time of the error. See, e.g., United States v. Martin, 757 F.2d 770, 771 (6th Cir.), cert. denied, 472 U.S. 1029 , 105 S.Ct. 3506 , 87 L.Ed.2d 636 (1985) (plain errors are those which would produce a substantial miscarriage of justice to the defendant if not corrected); Fed.R.Crim.P. 52(b) (plain errors affect a defendant’s “substantial rights”).

Moreover, in United States v. Wood, 780 F.2d 555 , 559-60 n. 5 (6th Cir.), cert. denied, 475 U.S. 1111 , 106 S.Ct. 1522 , 89 L.Ed.2d 920 (1986), this court noted that “the explicit nature of the government’s obligation under Fed.R.Crim.P. 12.1” may trump the lack of objection by defendant. Thus, I believe that the admission of the testimony was plain error because the failure to disclose this rebuttal alibi witness strikes solidly at the fundamental fairness of this trial, where the defendant relied exclusively on an alibi defense. See United States v. Mendez-Ortiz, 810 F.2d 76, 78 (6th Cir.1986), cert. denied, — U.S.—, 107 S.Ct. 1384 , 94 L.Ed.2d 697 (1987); United States v. Perez, 651 F.2d 268, 273 (5th Cir.1981).

I also believe that the trial court abused its discretion in determining that the government was excused from noncompliance with Rule 12.1 for “good cause” under the exception to the Rule articulated in 12.1(e).

First, the government admitted on the record that it could think of no excuse for *1289 its failure to alert defense counsel to Mrs. Jackson’s rebuttal testimony. When the court asked why no notice was given, the assistant United States attorney replied, “your Honor, I really can’t say. I don’t know if it was oversight on my part.” This court should not absolve government “oversight” that conveniently violates a rule and results in conviction. The judiciary should not be made an accomplice to this prosecutorial indiscretion.

Second, it was only at the post-trial stage of the proceedings that the government molded its ex post facto reasons to justify its violation of Rule 12.1. I believe these rationalizations are too feeble and too late.

The majority approvingly observes that notice to defendant was provided within forty-eight hours of the time the government became aware of Mrs. Jackson’s testimony. Two days is a long time in the life of a trial, where the attorneys are rooted in the same small courtroom and are in constant contact. It would have taken little time or effort for the government to have complied with the Rule, simply by mentioning to defense counsel — either in court during the day’s trial, or in the evening via a three minute phone call — that it was attempting to bring Mrs. Jackson to the stand. 1 Instead, defense counsel was apprised of Mrs. Jackson’s testimony only just prior to when the witness took the stand. The prosecution knew too well that Mr. Causey’s case rested solely on his alibi defense, and that by bringing Mrs. Jackson as a surprise witness, they were decimating his defense.

The majority does not attempt to reconcile with their opinion the holdings in United States v. Myers, 550 F.2d 1036 (5th Cir.1977), later appealed, 572 F.2d 506 (5th Cir.), cert. denied, 439 U.S. 847 , 99 S.Ct. 147 , 58 L.Ed.2d 149 (1978), and United States v. White, 583 F.2d 899 (6th Cir. 1978). In those cases, the courts found error in the failure to provide notice of an alibi witness. Here, as in Myers, “the prejudice to the defense was substantial and remained unabated.” Myers, 550 F.2d at 1043 . Defense counsel was deprived of the opportunity to interview Mrs. Jackson, to reassess Mr. Causey’s story in light of the additional evidence, to re-evaluate his trial strategy, and most importantly, to reconsider his decision to put Mr. Jackson on the stand. See id. This is prejudice of the most fundamental sort: the defense counsel had absolutely no opportunity to prepare for the bombshell that was to blow his ego apart.

The trial judge gave as another reason to justify the failure to give notice the fact that certain witnesses in the case had received threats. Even so, the trial court could have granted a protective order for Mrs. Jackson if she had actually felt threatened; protective orders are a daily occurrence in criminal trials. Moreover, there is no evidence that this particular witness had received any threats.

Because I do not believe this court should condone the government’s convenient “oversight,” I believe the violation of Rule 12.1 mandates a new trial.

Accordingly, I respectfully dissent.

. The government argues that it should be excused from the requirement because it was having difficulty subpoening Mrs. Jackson. This circuit has expressly held that Fed.R.Crim.P. 12.1 only requires disclosure of the "identity” of the alibi witness and does not excuse notice simply because a witness is somehow indisposed. United States v. White, 583 F.2d 899, 902 (6th Cir.1978).