United States v. Darwin Bissonette ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1870
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Darwin Michael Bissonette, *
*
Defendant - Appellant. *
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Submitted: December 18, 1998
Filed: January 8, 1999
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Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
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MURPHY, Circuit Judge.
Darwin Michael Bissonette appeals from his conviction for distributing
marijuana in violation of 21 U.S.C. § 841(a)(1). He claims that the government’s
untimely disclosure of witness Robert Thunder Horse should have led to the exclusion
of his testimony and that the district court1 also erred by permitting Thunder Horse to
identify him at trial. We affirm.
1
The Honorable Richard H. Battey, United States District Court for the
District of South Dakota.
The evidence at trial indicated that Bissonette had sold 5.44 grams of marijuana
at his home to Thunder Horse, who was acting in an undercover capacity. Details of
the purchase were recorded immediately after the transaction in Thunder Horse’s own
statement and in summary reports of debriefing officers. The transaction took place
on February 22, 1997, and it was part of an extended sting operation by the Bureau of
Indian Affairs and the Oglala Sioux Tribe Department of Public Safety. During the
operation Thunder Horse made approximately 15 controlled buys and between 50 and
60 contacts which did not result in controlled purchases. In the course of debriefing
Thunder Horse, investigators from the tribal police and the Bureau of Indian Affairs
showed him a photograph of Bissonette and asked him if he could identify the
individual pictured. He replied affirmatively and said that it was Mike Bissonette, one
of the people from whom he had made a controlled buy. Thunder Horse’s trial
testimony indicated that he had also seen Bissonette on another occasion four years
earlier when he had gone to his house with a friend.
Bissonette gave written notice on September 24, 1997 of his intention to offer
an alibi defense at trial. This obligated the government to provide the names and
addresses of any alibi rebuttal witnesses within ten days, and “in no event less than ten
days before trial.” Fed. R. Crim. P. 12(b). The trial was scheduled to start on
November 4, and on October 22 Bissonette moved to exclude the testimony of
witnesses not disclosed pursuant to Rule 12.1. The district court continued the trial
date to November 18, and on October 31 the government named Thunder Horse as an
alibi rebuttal witness. The government had previously given Bissonette copies of
Thunder Horse’s statement and his debriefing summaries, but these documents
identified the declarant only by confidential informant number. The court
subsequently denied the Rule 12.1 motion to exclude testimony.
At trial, Thunder Horse identified Bissonette as the person who had sold him
marijuana on February 22, 1997. He was the only witness who testified to being
present at the sale. The jury found Bissonette guilty, and the trial court sentenced him
to one year incarceration.
2
Bissonette claims on appeal that the trial court committed reversible error by
admitting Thunder Horse’s testimony when the government had not identified him
within ten days of his notice of alibi defense and less than ten days before the original
trial date. The standard of review for this issue is whether the district court abused its
discretion in admitting the evidence. See United States v. Woodard, 671 F.2d 1097,
1099 (8th Cir. 1982).
The alibi notice rule requires the government to provide notice of its alibi
rebuttal witnesses within a set time period, but leaves it to the trial court to decide
whether any violation mandates exclusion of testimony. Fed. R. Crim P. 12.1(b), (d),
(e) (court “may” exclude the testimony of any undisclosed witness and grant
exceptions for good cause). Factors to consider include prejudice to the defendant, the
reason for nondisclosure, mitigation of harm by subsequent events, and other evidence
of the defendant’s guilt. See United States v. Woodard, 671 F.2d 1097, 1099 (8th Cir.
1982); United States v. Myers, 550 F.2d 1036, 1043 (5th Cir. 1977).
The district court did not abuse its discretion by denying the motion to exclude
Thunder Horse’s testimony. Although Rule 12.1 gives the court the power to exclude
evidence when it is violated, it does not require exclusion. Bissonette suffered no
prejudice as a result of the government’s late disclosure. The trial was continued, and
the defense had more than ten days to consider the disclosure of Thunder Horse as an
alibi rebuttal witness. The defense previously knew the substance of Thunder Horse’s
testimony from the statements and summary reports provided Bissonette, and counsel
conducted a thorough cross examination on his behalf. Bissonette also failed to
request a further continuance, indicating that he did not perceive the need for
additional time to prepare. See McClendon v. United States, 587 F.2d 384, 389 (8th
Cir. 1978). See also United States v. Quesada-Bonilla, 952 F.2d 597, 603 (1st Cir.
1991). Neither the text nor the policy behind the rule required the court to exclude the
evidence. See Quesada-Bonilla, 952 F.2d at 602-03; McClendon, 587 F.2d at 388-89.
3
Bissonette also claims that the court committed reversible error by permitting
Thunder Horse to make an in court identification at trial. Bissonette says that the
pretrial identification procedure was impermissibly suggestive because Thunder Horse
was only shown one photograph and that he therefore should not have been permitted
to identify Bissonette at trial.
There is no evidence that there was anything in the debriefing interview to
prompt Thunder Horse to connect the photo he was shown to a particular individual
or incident. Thunder Horse had been involved in numerous controlled buys, but he
named Bissonette and reported on the drug transaction with him as soon as he saw the
photograph. This situation is not like procedures where there is a suggested connection
between displayed evidence and a particular crime, as when a witness is asked whether
this specific individual was responsible for robbing the bank. See United States v.
Henderson, 719 F.2d 934, 937 (8th Cir. 1983). Although there was an almost nine
month gap between Thunder Horse’s last encounter with Bissonette and the photo
identification, Thunder Horse had had ample opportunity to observe Bissonette during
the course of the face to face transaction at Bissonette’s house and on his previous
visit. Because he was part of an undercover sting operation at the time of the
transaction, Thunder Horse knew he needed to observe the seller carefully. He had
previously been trained as a police officer and specifically in identification procedures.
The totality of circumstances here indicates that the single photo identification
was not impermissibly suggestive or likely to result in “irreparable misidentification.”
Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir. 1996); see also Pratt v.
Parratt, 615 F.2d 486, 488 (8th Cir. 1980). There was ample reason for the trial court
to find Thunder Horse capable of making a reliable identification. See Neil v. Biggers,
409 U.S. 188, 199-200 (1972); Brodnicki, 75 F.3d at 1265. The trial court therefore
did not abuse its discretion in allowing Thunder Horse to identify Bissonette at trial.
The court also did not err by refusing to grant a separate pretrial suppression hearing,
and defense counsel was able to protect Bissonette’s rights by attacking the reliability
4
and accuracy of the identification through cross examination. See Watkins v. Sowders,
449 U.S. 341, 349 (1981).
Appellant has not shown reversible error or established a right to a new trial, and
we affirm the judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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