Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 81-49-CR -- Cale R. Holder, Judge.
Cummings, Chief Judge, Pell and Cudahy, Circuit Judges.
Sir Walter Raleigh Bouye, Jr. challenges the validity of his federal bank robbery conviction. He makes two contentions on appeal. He first argues that the district court committed reversible error when it refused to strike the testimony of witnesses (linking him to the scene of the crime) on the ground that their identities had not been disclosed to him prior to the trial. Second, Bouye claims that the district court should have admitted the testimony of eyewitnesses of another bank robbery that the man in the bank surveillance photographs in this case was the same individual who had participated in the bank robbery which they had witnessed. Bouye planned to impeach this testimony by showing that he was incarcerated at the time of the other bank robbery. We disagree with both of the appellant's contentions and accordingly affirm the judgment of the district court.
On April 21, 1981, a branch of the Indiana National Bank, located in Indianapolis, Indiana, was robbed by an individual wearing a nylon stocking over his face and carrying a sawed-off shotgun in a white bag. After the gunman had ordered the customers and employees to "hit the floor face down . . . open the drawers," the bank robber leaped through a teller's window and proceeded from window to window, grabbing money from open drawers. Throughout the course of the robbery the bank surveillance camera took photographs of the robber. These photographs revealed that the robber was a man in his early 30's, with a large bump above the bridge of his nose. The robber also appeared to have a bright object in his mouth. After exiting the bank, the gunman got into a 2-door yellow "coupe" with 1981 Indiana license plates. It was later ascertained that Bouye's wife owned a yellow Camaro automobile with 1981 Indiana license plates, that Bouye had a large protrusion above his nose, and that he had a gold tooth in the front of his mouth.
Three days after the robbery, Bouye was arrested and charged with armed bank robbery in violation of 18 U.S.C. § 2113(a). At trial, three bank employees testified that Bouye resembled the bank robber. Four other individuals who had known Bouye for a period of time ranging from three months to three years identified the man in this bank's surveillance photographs as Bouye. The defendant presented as an alibi the testimony of his wife, mother, and neighbor to establish that Bouye was at his mother's home at the time of the robbery. The jury ultimately found Bouye guilty of the bank robbery. The district court sentenced him to fifteen years imprisonment. This appeal followed.
The first argument which we must address is Bouye's claim that the district court erred when it refused to strike the testimony of the witnesses upon whom the government relied to establish Bouye's presence at the scene of the crime. Bouye argues that their testimony should have been stricken because the government failed to disclose the identities of these witnesses prior to the trial. In order to assess the merit of this contention properly, it is necessary to examine in further detail some of the events which occurred prior to trial.
On June 11, 1981, the defendant served notice on the district court and the United States Attorney that he intended to call certain named witnesses at trial in order to establish that he was at a location other than the bank at the time of the robbery. The names and addresses of two witnesses were given. At no time prior to this notice had the government ever requested such alibi information. Five days later Bouye filed with the district court a "Notice of Additional Alibi Witnesses," in which two more names were added to Bouye's list of prospective witnesses. Again this notice was wholly gratuitous and was not made at the request of the government. No response was ever made by the government prior to trial to the "Notice of Alibi" and to the "Notice of Additional Alibi Witnesses" filed by the defendant.
At the commencement of the trial, Bouye moved for an order precluding the testimony of any government witnesses who would place him at the scene of the crime. He argued that because the government had failed to respond to his "Notice of Alibi" as allegedly required by Rule 12.1(b) of the Federal Rules of Criminal Procedure (note 3 infra), the sanction he requested (total exclusion) was appropriate and authorized by Rule 12.1. The district court, concluding that the defendant had not been harmed by the government's alleged failure to comply with Rule 12.1(b), denied the motion and allowed the witnesses to testify.
Under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the prosecution has the duty under the due process clause to insure that criminal trials are fair by disclosing evidence favorable to the defendant upon request. Id. at 87. As a general principle, however, the due process clause has "little to say" regarding the amount of discovery which the parties in a criminal trial must be afforded. Wardius v. Oregon, 412 U.S. 470, 474, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973). In fact, the Supreme Court has recently stated that there is no general constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977). It is only by virtue of Rule 16 of the Federal Rules of Criminal Procedure that pretrial discovery is generally provided for in criminal cases.*fn1 It is clear, however, that not even under Rule 16 is a defendant in a noncapital case entitled to lists of prospective government witnesses. See, e.g., Weatherford v. Bursey, supra, 429 U.S. at 559 (no requirement that prosecution reveal names of all witnesses unfavorable to defendant); United States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980)(government not required to furnish defendant with list of witnesses in a noncapital case); United States v. Dark, 597 F.2d 1097, 1099 (6th Cir.), certiorari denied, 444 U.S. 927, 62 L. Ed. 2d 183, 100 S. Ct. 267 (1979) (withholding of government witnesses' returned subpoenas from case file, thereby preventing defense from learning who will testify, does not require exclusion of testimony because government has no duty to identify witnesses).
Proposals to amend Rule 16, in an effort to provide each party with the names and addresses of the other party's witnesses prior to trial, have been rejected in the past, under the rationale that:
It is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contacts directed at influencing their testimony were deemed paramount concerns in the formulation of this policy.
H.R. Rep. No. 94-414, 94th Cong., 1st Sess. 12, reprinted in  U.S. Code Cong. & Admin. News 674, 713, 716. The exception to the policy of nondisclosure of the names of witnesses is found in Rule 16(e),*fn2 which states that the names of alibi witnesses are ...