United States v. Myers

United States Court of Appeals for the Fifth Circuit · 1977 · Evidence

550 F.2d 1036 (5th Cir. 1977)

Updated August 22, 2026

EvidenceRule 12.1alibi rebuttal witnessescontinuing duty to disclosegood cause exceptionexclusion sanctionRule 404(b)other crimes evidence

Facts

Myers was prosecuted for a June 13, 1974 bank robbery in Clearwater, Florida, and defended on the theory that he was elsewhere, relying on alibi witnesses including Ronald Akers. Before the first trial, Myers gave Rule 12.1 alibi notice, and the government named only two bank tellers and Janice Johns as witnesses, promising to supplement as additional rebuttal witnesses were discovered, but never did. After the first trial ended in mistrial, the government investigated Akers' account and at the second trial called four previously undisclosed witnesses whose testimony was designed to show Akers' story was false. The district court also admitted evidence of a later Pennsylvania bank robbery to identify Myers as the Florida robber and instructed the jury on flight based on incidents in Florida and California after the robbery.

Issue

Did the district court reversibly err by allowing testimony from undisclosed alibi rebuttal witnesses under Rule 12.1, by admitting evidence of another bank robbery to prove identity, and by giving a flight instruction without sufficient evidentiary support? More specifically, did the government have to disclose witnesses used only to impeach an alibi witness, were the similarities between the charged and uncharged robberies distinctive enough to support identity, and did the flight evidence support the required inferences?

Rule

Under Federal Rule of Criminal Procedure 12.1(b) and (c), the government must disclose in writing both witnesses relied upon to place the defendant at the scene and any other witnesses relied upon to rebut testimony of the defendant's alibi witnesses, and unjustified nondisclosure may warrant exclusion under Rule 12.1(d). In deciding whether to exclude undisclosed testimony, a court should consider the prejudice from nondisclosure, the reason for nondisclosure, the extent of mitigation, the strength of the properly admitted evidence of guilt, and other relevant circumstances. Other-crimes evidence offered to prove identity through modus operandi is admissible only if the threshold prerequisites are met, including a sanctioned Rule 404(b) purpose and substantial need, and only if the similarities make the inference of identity extremely strong and the probative value outweighs prejudice under Rule 403. A flight instruction is improper unless the evidence reasonably supports four inferences: from behavior to flight, from flight to consciousness of guilt, from consciousness of guilt to consciousness of guilt concerning the crime charged, and from that consciousness to actual guilt of the crime charged.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal warehouse-theft prosecution in Dallas, Noel Carter served written notice that he would present an alibi through his sister, Maya Carter, who would say he was with her at a clinic in Fort Worth. The prosecutor timely disclosed only two security guards who would place Noel near the warehouse, but at trial also called a clinic receptionist, previously undisclosed, who testified Maya had never checked in on the date in question.

If Noel moves to strike the receptionist's testimony under Rule 12.1, how should the court rule?

Explanation. The majority construed Rule 12.1(b) to require disclosure of two classes of government witnesses: those used to establish the defendant's presence at the scene and any other witnesses relied on to rebut testimony of the defendant's alibi witnesses. A receptionist contradicting the alibi witness falls within the second class. Under that rule, nondisclosure can warrant exclusion.