USA v. Otis Alex Jones

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 2, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15450
Non-Argument Calendar
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D.C. Docket No. 6:09-cr-00264-GKS-KRS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll l Plaintiff-Appellee,
versus
OTIS ALEX JONES,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 2, 2012)
Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.
PER CURIAM:

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Otis Jones appeals his convictions for bank robbery and armed bank robbery,
in violation of 18 U.S.C. § 2113(a) and (d). On appeal, Jones argues that he was
denied his Fifth and Sixth Amendment rights to a fair trial when the district court
excluded his alibi notice and alibi witnesses because he failed to comply with the
deadline in the criminal scheduling order. After careful review, we affirm.
We review cases dealing with discovery violations under Fed.R.Crim.P. 12.1
for abuse of discretion. See United States v. Burkhalter, 735 F.2d 1327, 1329 (11th
Cir. 1984). In addition to traditional discretionary review for procedural rules, we
also recognize that under Taylor v. Illinois, 484 U.S. 400 (1988), a complaint about
a procedural rule which limits a defendant’s right to offer testimony is properly
grounded in the Sixth Amendment. Horton v. Zant, 941 F.2d 1449, 1466 (11th Cir.
1991). Normally, questions of constitutional law are reviewed de novo. United
States v. Douglas, 489 F.3d 1117, 1126 (11th Cir. 2007). However, when a criminal
defendant claims a violation of his Fifth and Sixth Amendment right to call witnesses
in his defense, we assess these claims under a two-step analysis. United States v.
Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). First, we examine whether the
defendant’s constitutional rights have actually been violated, and then ask whether
the error was “harmless beyond a reasonable doubt.” Id. at 1362-63 (quotation
omitted). The inquiry under the harmless error doctrine is whether there was a
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“reasonable possibility” that the excluded evidence contributed to the guilty verdict.
United States v. Cruz, 765 F.2d 1020, 1025 (11th Cir. 1985).
Under Rule 12.1(a), the defendant is obliged to give the government notice of
an intent to offer an alibi defense within 14 days of the government’s written demand
for such notice. Fed.R.Crim.P. 12.1(a)(2). In addition to providing the name,
address, and telephone number of each alibi witness, the defendant’s alibi notice must
also state each specific place where the defendant claims to have been at the time of
the alleged offense. Id. If a party does not comply, then the testimony of its alibi
witnesses may be excluded unless the court grants an exception for good cause.
Fed.R.Crim.P. 12.1(d), (e).
The Sixth Amendment guarantees a criminal defendant the right to have
“compulsory process for obtaining witnesses in his favor.” U.S. Const. amend VI.
Implicit in the Sixth Amendment right is the Fifth Amendment guarantee of “due
process of law,” which means that a criminal defendant must be afforded the
opportunity to present evidence in his favor. See U.S. Const. amend V; Hurn, 368
F.3d at 1362-63. A defendant’s right to a fair trial is violated when evidence is
excluded that is “material in the sense of a crucial, critical, highly significant factor.”
Hurn, 368 F.3d at 1363 (quotation omitted). However, a criminal defendant does not
have an “unfettered right” to offer testimony, and a court may constitutionally
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preclude a defendant from offering otherwise relevant evidence if he fails to comply
with procedural rules requiring that notice be given. United States v. Frazier, 387
F.3d 1244, 1271 (11th Cir. 2004) (en banc) (quotation omitted).
In this case, the district court did not abuse its discretion when it excluded
Jones’s alibi notice based on his failure to comply with the filing deadline, as
established in the criminal scheduling order. As the record reflects, Jones filed his
alibi notice more than a month after the stated deadline, and after the trial term had
begun. Despite Jones’s contention, the district court is not required to grant the
parties a hearing or the lesser sanction of a continuance. See Fed.R.Crim.P. 12.1;
Taylor, 484 U.S. at 413 (stating that alternative sanctions, such as a continuance, may
be “adequate and appropriate” in most cases, but may be “less effective than the
preclusion sanction”). Here, the district court concluded that Jones’s untimely alibi
notice did not leave the government any time to investigate the alibi claim or to
interview the alibi witnesses, and in its discretion, excluded Jones’s alibi notice.
In addition to being untimely, Jones’s alibi notice failed to comply with the
specific disclosure requirements under Fed.R.Crim.P. 12.1(a). Jones’s alibi notice
listed his location as simply “Buffalo, N.Y.,” without indicating the specific place
where Jones was when Regions Bank was being robbed. See Fed.R.Crim.P.
12.1(a)(2). Because Jones failed to comply with the rules of procedure and evidence
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designed to assure both fairness and reliability in his criminal proceeding, Frazier,
387 F.3d at 1271, the district court did not abuse its discretion in excluding Jones’s
alibi notice.
Moreover, Jones’s Fifth and Sixth Amendment rights were not violated when
the district court precluded Jones from calling his alibi witnesses at trial due to his
failure to disclose the witnesses pursuant to Fed.R.Crim.P. 12.1. See Frazier, 387
F.3d at 1271 (stating that a district court may constitutionally preclude an accused
from presenting an alibi witness if he failed to disclose the witness under the requisite
procedural rules). While the defendant has a fundamental right to offer testimony of
witnesses in his favor, the invocation of this right must be weighed against
countervailing public interests, such as the integrity of the adversary process. Taylor,
484 U.S. at 414-15. The purpose of the notice-of-alibi rules is to provide a liberal
discovery system giving both parties, Jones and the government, the maximum
amount of information to prepare their cases and reduce the possibility of surprise at
trial. See id. at 411 n.16. Indeed, given the ease with which an alibi defense can be
fabricated, the government has a legitimate interest in protecting itself against an
“eleventh-hour defense.” Id. at 412 n.17 (quotation omitted).
In this case, Jones waited until after the filing deadline passed, and after the
trial term began, to give notice of his intent to present an alibi defense. At this point,
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the parties had to be ready to proceed to trial on 24 hours’ notice, and to allow Jones
to assert his untimely alibi notice would have prevented the government from having
an “ample opportunity to investigate certain facts crucial to the determination of guilt
or innocence.” Id. (quotation omitted). Thus, Jones’s inability to call alibi witnesses
was a result of his own doing, and the district court did not err.
In any event, even if we were to conclude that the exclusion of Jones’s alibi
witnesses at trial violated his constitutional rights, this error was harmless beyond a
reasonable doubt because there was no “reasonable possibility” that the excluded
testimony contributed to his guilty verdict. Cruz, 765 F.2d at 1025. Although it is
unclear exactly what each alibi witness would have testified to at trial, at a minimum,
they would have stated that Jones was in Buffalo, New York, when the Regions
Banks was being robbed in Florida. However, the evidence at trial -- including the
consistent testimony of three bank employees and several others the first-hand
witnesses’ consistent testimony, an incriminating response by Jones concerning the
robberies, and the close proximity of time between the robberies and Jones’s presence
in Florida -- showed compelling proof of Jones’s presence in Florida during the dates
of the bank robberies. As a result, there was no reasonable possibility that the
exclusion of testimony by Jones’s alibi witnesses contributed to Jones’s guilty
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verdict, and the district court did not err in excluding Jones’s alibi notice and alibi
witnesses. Accordingly, we affirm.
AFFIRMED.
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