Lewis v. United States - 771 F.2d 454 (10th Cir. 1985)

Rule:

Fed. R. Crim. P. 12.1(c) provides: Continuing Duty to Disclose. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (a) or (b), the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.

Facts:

When the police arrived at the post office, they discovered Jermaine Lewis’ wife and the other individual's girlfriend parked across the street. At both trials, the individual and his girlfriend testified that Lewis and the individual burglarized the post office after having stolen a cutting torch and oxygen bottles from a local garage store. Lewis presented an alibi defense at both trials. At the second trial, the government called a rebuttal alibi witness. The government gave Lewis one day's notice that the rebuttal alibi witness was going to be called. Lewis appealed his conviction.

Issue:

Did the district court properly deny Lewis’ motion for a new trial?

Answer:

Yes.

Conclusion:

The court affirmed, holding the government complied with Fed. R. Crim. P. 12.1(c) by promptly notifying Lewis that they had a rebuttal witness. The court held that because the rebuttal witness was not called until the second day of trial, Lewis had adequate time to prepare a cross-examination. The court held that the evidence of Lewis’ participation in a burglary several hours before the post office burglary with which Lewis was charged fell within Fed. R. Evid. 404(b) as establishing Lewis’ plan and intent.