October 22, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 93-1037

                        THOMAS P. BOWLING,
                       Plaintiff-Appellant,

                                v.

                   GEORGE A. VOSE, DIRECTOR OF
                  THE DEPARTMENT OF CORRECTIONS,
                  STATE OF RHODE ISLAND, ET AL.,
                      Defendants-Appellees.

                                           

                           ERRATA SHEET

     The opinion of this  Court issued on September 10,  1993, is
amended as follows:

     Add to the end of footnote 2 on page 2 of the opinion:

          It  is  apparently  the  state's   view  that
          Inspector  Byrne's  estimate  that  the  fire
          started thirty to  forty-five minutes  before
          discovery depended on the assumption that the
          fire did not  start until 11:46.   We see  no
          basis for this assumption and think  that, at
          the  very least, the  testimony is reasonably
          open to the interpretation that the fire  had
          been  started  thirty  to forty-five  minutes
          before it was actually discovered.

     Add as  a footnote  on page 6  of the opinion  following the
first sentence on that page after the word "testimony":

          The trial judge and the Rhode Island  Supreme
          Court  conducted  the  required  weighing  of
          factors  elaborated  in Taylor  and concluded
                                        
          that the exclusion of the  alibi evidence was
          an appropriate sanction.  As  the application
          of Taylor is a legal question, we review this
                   
          ruling  de novo  and arrive  at the  opposite
          conclusion.

     Add as a footnote at the end of the first  full paragraph on
page 7, after the word, "worst":

          The trial  court not only failed  to make any
          explicit finding of  willful misconduct,  see
                                                       
          Bowling v.  Vose, No. 91-0472, slip  op. at 3
                          
          (D.R.I.   Nov.   13,   1992),  it   seemingly
          concluded   to   the   contrary.     In   its
          exclusionary ruling, the court stated that it
          was  "not persuaded  that [offering  an alibi
          witness]   was   the   defendant's   original
          intention . . . ."  Without such an intent to
          violate  the discovery  rules, the  fact that
          defense  counsel  later  felt that  an  alibi
          witness   should  be  called   would  not  be
          indicative of bad faith or misconduct.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1037

                        THOMAS P. BOWLING,

                       Plaintiff-Appellant,

                                v.

                   GEORGE A. VOSE, DIRECTOR OF
                  THE DEPARTMENT OF CORRECTIONS,
                  STATE OF RHODE ISLAND, ET AL.,

                      Defendants-Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Francis J. Boyle, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                 Campbell, Senior Circuit Judge,
                                               

                      Boudin, Circuit Judge.
                                           

                                           

     Paula Lynch Hardiman for appellant.
                         
     Jane  M.  McSoley,  Assistant  Attorney  General,  Appellate
                      
Division, with  whom Jeffrey  B. Pine,  Attorney General, was  on
                                     
brief for appellee State of Rhode Island.

                                           

                        September 10, 1993
                                           

          TORRUELLA, Circuit Judge.  In   this   habeas    corpus
                                  

action, appellant  was convicted  of first-degree arson  in Rhode

Island.  He claims that the trial judge excluded an alibi witness

in violation of his Sixth Amendment rights, and we agree.

          In the prosecution's request for  discovery information

prior to trial, the  prosecution specified that the suspect  fire

started between  11:00 p.m. and 12:00  a.m., on June  7, 1986, at

his  apartment building in Pawtucket, Rhode Island.  In complying

with  the  request  appellant  did not  aver  an  alibi  defense,

although Rhode Island  Rule of Criminal  Procedure 16 requires  a

defendant to provide such notice within 21 days of receipt of the

state's demand.1   Appellant claims  that he was  unaware of  any

alibi  for  that   evening  between  11:00  p.m.  to  12:00  a.m.

Appellant prepared his defense accordingly.  

          At trial,  the state presented the  testimony of Donald

Byrne, a fire investigator.  On cross-examination, he stated that

the  fire actually started thirty to forty-five minutes before it

was  discovered.2    Appellant's  counsel  then calculated  that,

                    

1   The rule provides that  "upon demand by the  attorney for the
State and  delivery by him or  her to the defendant  of a written
statement describing with specificity the date  and time when and
the  place where the offense charged is alleged to have occurred,
the  defendant, within twenty-one (21) days after receipt of such
demand and  particulars, shall give written  notification whether
he or  she intends to rely in  any way on the  defense of alibi."
R.I. Sup. Ct. R. Crim. P. 16.  

2    Inspector  Byrne believed  that  the  fire  was reported  at
11:46 p.m., and testified  as such.  However,  the Pawtucket Fire
Department  reported  that  it was  informed  about  the fire  at
11:34 p.m.    The  latter  report  would  seem  to  be  the  most
definitive   evidence  of  the  actual  starting  time.    It  is
apparently the state's view  that Inspector Byrne's estimate that

                               -2-

according to the  inspector, the fire  must have started  between

10:49 and 11:04 p.m.  This new time period obviously was somewhat

removed from the 11:00 p.m. to 12:00 a.m. period that counsel had

previously focused on in preparing the defense.

          The  revised  time  window  suggested  a  new  defense.

Counsel remembered an affidavit, supplied during discovery by the

state, from  appellant's common-law  wife, Doris Palmieri.3   Ms.

Palmieri stated that appellant  had picked her and her  sister up

at a club  in Providence sometime  after ten o'clock.   Because a

witness  placed  appellant at  the  building at  10:34  p.m., and

others  saw him there before  then, counsel inferred  that he did

not leave to pick up his wife until after approximately half past

ten.

          Counsel  then  tracked  down  Ms.   Palmieri's  sister,

Jenette Fagundes, and learned  that after picking up the  sisters

at  the  club,  appellant  drove  her home  before  returning  to

Pawtucket.   Counsel  determined that  appellant could  not leave

Pawtucket after 10:34 p.m., drive to the club in Providence, take

Ms. Fagundes to her  home in Providence, and return  to Pawtucket

in  time to  start the fire  by 11:04  p.m.   Appellant therefore

could not have burned down the building.  

                    

the fire  started thirty  to forty-five minutes  before discovery
depended  on the  assumption that  the fire  did not  start until
11:46.  We se no basis for this assumption and think that, at the
very   least,   the  testimony   is   reasonably   open  to   the
interpretation that  the fire had  been started thirty  to forty-
five minutes before it was actually discovered.

3   Ms. Palmieri passed  away shortly after  the fire, of  causes
unrelated to the fire.  

                               -3-

          After  the state  closed  its evidence,  and five  days

after the fire inspector  testified, counsel petitioned the court

to allow  Ms. Fagundes  to testify.   He stated  that he  did not

recognize the  relevance of  her story  until the fire  inspector

testified about when the  fire started.  Furthermore, he  did not

learn Ms.  Fagundes' name or  address until two days  later.  The

state responded that it would  not oppose the motion if  it could

introduce Ms. Palmieri's statement, which contained incriminating

facts, in full  as rebuttal.   In it, Ms. Palmieri  revealed that

upon arriving at the apartment building, appellant told her  that

she should sleep elsewhere.

          The  trial judge took a recess to ponder the matter and

ultimately decided to exclude Ms. Fagundes' testimony.  The judge

noted that appellant had the  Palmieri statement well before  the

trial,  and that  it sufficiently  raised the possibility  of the

alibi.   Because Rule 16 imposed an affirmative duty on appellant

to disclose reliance on an alibi, even if the name of the witness

was  unknown,    the  judge found  that  appellant  had  violated

discovery.   The judge excluded the alibi testimony as a sanction

under  Taylor  v.  Illinois, 484  U.S.  400  (1988).   The  judge
                           

determined that defendant "seized upon this tact having heard the

state's entire case and the state rested,"  and cited the need to

ensure the "orderly administration of justice."  

          In  contrast  to the  proffered alibi,  the inculpatory

evidence  at  trial  was   substantial.    Two  eyewitnesses  saw

appellant  in the vicinity of the fire overcome by smoke; one saw

                               -4-

him running from the building.  Another eyewitness saw  appellant

throwing lighted paper into  a vent leading to the first floor of

the building.  Witnesses  testified that appellant threatened the

building's  owners  shortly before  the  fire.   Another  witness

apparently  testified that  appellant had  warned the  witness to

leave the building.  Swayed by this evidence, the jury rendered a

guilty verdict and appellant received a 25 year sentence.

          Appellant bases  his argument  on the  Sixth Amendment,

which states:   "In all criminal prosecutions,  the accused shall

enjoy the right  . . . to  have compulsory process  for obtaining

witnesses  in  his favor."   Of  course, the  "right to  compel a

witness'  presence in the courtroom" would  be meaningless "if it

did not embrace the right to have the witness' testimony heard by

the trier of fact."   Taylor, 484 U.S.  at 409.  Exercise of  the
                            

right  thus assists  the adversary  process in  its truth-seeking

function by ensuring that the trial court hears the full array of

admissible  facts pertinent  to the  case.   The Court  in Taylor
                                                                 

noted  that  "few rights  are more  fundamental  than that  of an

accused to present witnesses in his own defense."  Id. at 408.
                                                      

          It  is  not an  absolute  right,  however.   Given  the

demands of the adversary system, the Court in Taylor found that a
                                                    

trial court may  exclude a defense  witness without trampling  on

the Sixth Amendment.   The Court issued no  hard test; rather, it

listed  various considerations that a judge could use as a guide.

These  include the  "integrity  of the  adversary process,  which

depends both  on the  presentation of reliable  evidence and  the

                               -5-

rejection of unreliable  evidence, the interest  in the fair  and

efficient administration of justice,  and the potential prejudice

to  the truth-determining function of the trial process."  Id. at
                                                              

414-15.   If these concerns  outweigh the defendant's interest in

presenting witnesses,  the trial  court can properly  exclude the

testimony4.

          Courts thus have upheld the exclusion of a witness when

a party willfully violates the discovery rules to gain a tactical

advantage  in litigation.  In Taylor, for instance, it was "plain
                                    

that  the case fit[] into  the category of  willful misconduct in

which the severest  sanction is appropriate."   Id. at 417.   The
                                                   

proposed testimony appeared to be fabricated -- "witnesses [were]

being found  that really  weren't there."   Id.   In Michigan  v.
                                                             

Lucas,  111 S.  Ct. 1743,  1748 (1991),  the Court  explained its
     

earlier holding:  "We  did not hold in Taylor  that preclusion is
                                             

permissible  every time a discovery rule is violated.  Rather, we

acknowledged that alternative  sanctions would  be 'adequate  and

appropriate in  most cases'" (quoting  Taylor, 484 U.S.  at 414).
                                             

The  Court  in Lucas  justified  the imposition  of  the severest
                    

sanction of exclusion  in Taylor by noting  the willful character
                                

of the discovery violation.

          Indeed, most circuit court cases affirming exclusion in

                    

4   The trial judge and the  Rhode Island Supreme Court conducted
the  required  weighing  of  factors  elaborated  in  Taylor  and
                                                            
concluded  that  the  exclusion  of  the alibi  evidence  was  an
appropriate  sanction.  As the  application of Taylor  is a legal
                                                     
question,  we  review  this ruling  de  novo  and  arrive at  the
opposite conclusion.

                               -6-

response to  discovery violations  involve willful conduct.   See
                                                                 

United States v.  Johnson, 970  F.2d 907, 911  (D.C. Cir.  1992);
                         

United  States v.  Mitan, 966  F.2d 1165,  1175 (7th  Cir. 1992);
                        

Horton v.  Zant, 941 F.2d  1449, 1467 (11th  Cir. 1991);   United
                                                                 

States v. Peters, 937 F.2d 1422,  1426 (9th Cir. 1991); Eckert v.
                                                              

Tansy, 936 F.2d 444 (9th Cir. 1991); Escalera v. Coombe, 852 F.2d
                                                       

45, 48 (2d  Cir. 1988); Chappee  v. Vose, 843  F.2d 25 (1st  Cir.
                                        

1988).  The  Ninth Circuit  has even interpreted  Taylor to  mean
                                                        

that  exclusion  is  permissible  only  when  the  case  involves

misconduct.  Peters, 937 F.2d at 1426.
                   

          In this case, there was  no such misconduct.  Appellant

did not, and could not, learn that the fire was set between 10:49

to 11:04  p.m., until  the fire  inspector was cross-examined  at

trial.   Appellant  proceeded on  the theory  that 11:00  p.m. to

12:00  a.m.  was  the relevant  time  period  simply  because the

government  suggested  that it  was  the  relevant time  period.5

While counsel could have learned about appellant's travels on the

night  in question with some ease from the Palmieri statement, we

view counsel's ultimate failure as negligence at worst6.

                    

5    The  reporter's notes  appended  to  Rule  16 recognize  the
significance  of the  state-provided  time of  offense.   "Unless
defendant  is given specific information about the time and place
of the offense, his ability to predict whether or through whom he
will raise  the defense of alibi  may be impaired."   Sup. Ct. R.
Crim. P. 16 reporter's notes to 1974 amendment.

6  The  trial court not only failed to  make any explicit finding
of willful misconduct, see Bowling v. Vose, No. 91-0472, slip op.
                                          
at  3 (D.R.I.  Nov.  13, 1992),  it  seemingly concluded  to  the
contrary.  In its  exclusionary ruling, the court stated  that it
was "not  persuaded  that [offering  an  alibi witness]  was  the
defendant's original intention . . .  ."  Without such an  intent

                               -7-

          In  this  circumstance,  it is  obvious  that  concerns

related to the  integrity of  the trial process  do not weigh  in

favor  of exclusion.    Indeed, exclusion  of an  exculpatory and

potentially   reliable  alibi  would  distort  the  truth-seeking

function of trial.   The proposed testimony does not  threaten to

pollute  the trial  with unreliable  evidence; it  corroborates a

written statement that the prosecution itself was content to use.

The fact  that no willful misconduct  prevented timely disclosure

of the alibi also allays fears of fabrication and untruthfulness.

          The prosecution could  have received  a continuance  to

investigate the  alibi and  cross-examine Ms. Fagundes  about the

night  in question.  Furthermore, the  proposed testimony was not

particularly scientific or technical  in nature, which could have

imposed  a  hardship  on  the government  in  preparing  a cross-

examination on short notice.   Given the unintentional nature  of

the violation in this case, we see no threat to the trial process

as a whole.

          Undoubtedly the  interest  in the  fair  and  efficient

administration of justice  is burdened by  the introduction of  a

new defense theory after the  government has closed its evidence.

Alternative  remedies   exist,  however,  which   adequately  and

appropriately address fairness and efficiency.  Rhode Island Rule

16 does not limit trial judges to exclusion as the only  sanction

for a violation  of its  discovery rules.   It lists less  severe

                    

to violate  the discovery rules,  the fact  that defense  counsel
later  felt that an alibi  witness should be  called would not be
indicative of bad faith or misconduct.

                               -8-

remedies such  as requiring  the  offending party  to reveal  the

discovery  or inspection,  granting  a  continuance, or  entering

"such  other order as  it deems appropriate."   R.I.  Sup. Ct. R.

Crim. P. 16(i).  

          Given the important nature of the proposed testimony to

the defendant,  and the nonwillful  character of the  offense, we

find  that   concerns  over  fairness  and   efficiency  are  not

sufficiently weighty  to justify the denial  of appellant's Sixth

Amendment  rights.    Indeed,  the  trial  court's  concern  over

fairness and efficiency seems  less credible when the prosecution

itself was willing to have the evidence admitted.  This is one of

those cases in  which a less severe sanction  than exclusion of a

witness was "adequate and appropriate."  Taylor, 484 U.S. at 414.
                                               

          Although  we have  found that  error  of constitutional

magnitude infected this case, our analysis is not over.  Before a

writ  of habeas  corpus  may issue,  that  error must  have  been

sufficiently prejudicial to defendant's rights  to warrant habeas

relief.  As the Supreme  Court has framed the inquiry,  the error

must have "had  substantial or injurious  effect or influence  in

determining  the jury's verdict."  Brecht v. Ahmanson, 113 S. Ct.
                                                     

1710, 1714  (1993) (citing Kotteakos  v. United States,  328 U.S.
                                                      

750, 776 (1946)).   As this standard is "grounded in  the federal

harmless-error rule (28 U.S.C.    2111), federal courts may  turn

to an existing body of case law in applying it."  Id. at 1722.
                                                    

          On  the  record we  have before  us,  we cannot  make a

sufficiently  appropriate  determination  on  whether  the Taylor
                                                                 

                               -9-

violation in this case  meets this standard.  The  district court

is  in a  better position  to evaluate  this issue  in  the first

instance, as  the inquiry entails  a determination  of the  exact

nature  and  force of  Ms.  Fagundes' proposed  testimony  and an

effort  to place her testimony within the context of the evidence

as  a whole.   In  short,  the weight  of her  testimony must  be

balanced against the weight  of the inculpatory evidence  in this

case, which is substantial.

          We therefore remand the case  to the district court for
                             

a  determination of this issue.   The district  court should hold

such hearings as necessary.

                               -10-
