Monday, June 25, 2007

Defense's Failure to Subpoena Witness Or to Ask Court to Order Her Back for Second Day of Trial Was Not Diligent Effort to Secure Her Presence

United States v. Hickerson, No. 05-20888 (5th Cir. June 19, 2007) (Smith, Barksdale, Dennis)

This is a fairly brief opinion rejecting three arguments that Hickerson raised on appeal from his conviction of two counts of being a felon in possession of a firearm.

First, the court held that the district court did not abuse its discretion in refusing to grant an additional defense request for a continuance to locate a witness on the second day of trial, after the defense had already failed to do so during two other continuances that day. Specifically, the defense failed to demonstrate due diligence in obtaining the witness, as required by the first of the four conjunctive Olaniye-Oke factors. Defense counsel had produced the witness at a suppression hearing on the first day of trial, had spoken to her that night, and had tried unsucessfully to contact her by telephone eight or nine times on the morning the defense presented its case. But because the defense did not subpoena her, and did not ask the district court to order her to return for the second day of trial after she finished testifying at the suppression hearing on the first day, the defense failed to exercise due diligence to obtain her presence.

Second, Hickerson argued that the district court erred by refusing to sever the two counts, which arose out of entirely separate incidents. Hickerson presented witnesses as to the first count, but was unable to do so as to the second count (as recounted above). According to Hickerson, "his defense as to the first count was prejudiced because the second count was not rebutted." The court found no abuse of discretion because the district court instructed the jury to consider the counts separately, "[p]rejudice from a failure to sever counts can be cured by proper jury instructions, and juries are generally presumed to follow their instructions."

Third, Hickerson argued, solely for purposes of preserving it for further review, that his ยง 924(e) enhancement was unconstitutional in light of Apprendi because the jury did not find his prior convictions and he did not admit them. This argument is foreclosed by Fifth Circuit precedent.


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