UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5467

DELMAR WALTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5468

MARK WATKINS,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-50066)

Argued: March 8, 1996

Decided: June 4, 1996

Before HAMILTON and WILLIAMS, Circuit Judges, and
WILLIAMS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part and remanded with instructions by unpublished per
curiam opinion.

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COUNSEL

ARGUED: John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI,
Wheeling, West Virginia, for Appellant Walton; Donald James Ten-
nant, Jr., CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT,
L.C., Wheeling, West Virginia, for Appellant Watkins. Robert H.
McWilliams, Jr., Assistant United States Attorney, Wheeling, West
Virginia, for Appellee. ON BRIEF: Jay T. McCamic, MCCAMIC &
MCCAMIC, Wheeling, West Virginia, for Appellant Walton; Wil-
liam Cipriani, CIPRIANI & PAULL, L.C., Wellsburg, West Virginia,
for Appellant Watkins. William D. Wilmoth, United States Attorney,
Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

I.

On February 17, 1995, Mark Watkins was convicted of five counts,
and Delmar Walton was convicted of four counts, of a six-count
indictment arising out of the murder of Debbie Pugh. The defendants
were engaged in a drug conspiracy ring, and killed Pugh to prevent
her from informing law enforcement officials about their activities.
The defendants have now lodged this appeal of their convictions, cit-
ing the following grounds:

I.The pretrial photographic array should have been suppressed.

II.The defendants' expert on photographic arrays should have
          been permitted to testify.

III.The police officer who conducted the photographic array was
          permitted to testify as an expert, despite the fact that no expert
          opinions were disclosed pursuant to Fed. R. Crim. P. 16(e).

                     2
IV.The defendants should have been allowed to introduce the pos-
         sible sentencing ranges for their co-conspirator.

V.The indictment should have been dismissed because the gov-
         ernment abused its subpoena power and failed to preserve
         exculpatory evidence.

VI.A mistrial should have been granted when the government
         made certain improper comments.

VII.The indictment should have been dismissed because of grand
          jury scripting.

VIII.Debbie Heiney should not have been allowed to testify because
         of the marital communications privilege.

IX.The government should have been required to elect between
         Counts Four and Five due to multiplicity.

X.The government should not have been allowed to bolster the
        testimony of a witness by using a provision in the plea agree-
        ment that the witness was to be truthful.

XI.The trials should have been severed.

XII.The evidence did not support the conviction.

XIII.Evidence that the defendants passed a polygraph test should
         have been admitted.

Finding only that the ninth ground of appeal has any merit, we affirm
on all the other grounds, and remand this case to the District Court
with instructions to vacate the defendants' convictions and sentences
on Count Five.

II.

The first ground of appeal raised by the defendants is that the pho-
tographic array identification of them was flawed. Two witnesses

                    3
were shown a photographic array containing six individuals, none of
whom were the defendants or their co-conspirator. Four and a half
years later, they were shown another array of six photographs, three
of which were pictures of the defendants and their co-conspirator. The
defendants first contend that the second array did not contain a suffi-
cient number of photographs. They argue that because 50% of the
array consisted of suspects, that the likelihood the women would pick
out the defendants was artificially inflated. This argument has no
merit. The women had rejected all the photographs in the previous
array, which contained no photographs of the defendants or their co-
conspirators, and they were free to do the same with the second array.
Furthermore, arrays where half of the photographs are of suspects
have been previously upheld by this Court. See Williams v. McKenzie,
576 F.2d 566, 571-72 (4th Cir. 1978); United States v. Cunningham,
423 F.2d 1269, 1271-73 (4th Cir. 1970).

The defendants further complain that the photographs in the array
were not sufficiently similar. Nothing requires that the photographs be
nearly identical; all the law mandates is that the array not be sugges-
tive. The photographs in the array were sufficiently close to the
descriptions given by the women such that the array was not sugges-
tive; nothing about the array leads to the conclusion that the women
would have inevitably chosen the defendants.

In addition, the defendants complain about the fact that the women
were shown the array together, and in a truck in a hospital parking lot
rather than at the police station. Yet the record clearly shows that only
in regard to defendant Walton was there a joint viewing. One woman
picked out the co-conspirator, while the second was still entering the
truck, having been impeded by the doorknob. The second woman then
picked out the co-conspirator independently. Both women then
pointed at defendant Walton at the same time, and then the first
woman also picked out defendant Watkins. The first woman then
attempted to jog the second woman's memory as to defendant Wat-
kins, but the second woman said that she had never seen his face, and
therefore could not pick him out. Again, the showing of a photo-
graphic array to two witnesses at the same time is not per se imper-
missible; the standard is again whether the array was suggestive. See
Tavarez v. LeFevre, 649 F. Supp. 526 (S.D.N.Y. 1986). The forego-
ing sequence of events demonstrates that despite the joint viewing,

                    4
the witnesses made independent identifications, and did not influence
one another. As for holding the viewing in a truck in a hospital park-
ing lot, that was done for the convenience of the witnesses; one of
them was taking her son to an appointment. Nothing about the array
suggests that the women were rushed in their identifications.

As for defendant Walton's attack upon his in-court identification
by one of the women, his contentions are without foundation and are
consequently without merit.

III.

The defendants' second ground of appeal relates to the exclusion
of the testimony of their supposed "expert." The admission of all evi-
dence in the federal system is subject to a test of probativeness. See
Fed. R. Ev. 402. The curriculum vitae of this expert casts doubts upon
his expertise, given his supposed mastery of approximately fourteen
separate areas. Furthermore, the content of the expert's testimony
demonstrates that it would have confused and mislead the jury. The
expert proposed to testify that one of the women unconsciously trans-
ferred the mustache from the laundromat cleaning man to the people
in the array. Yet the cleaning man testified that when he left the laun-
dromat, only the victim was present. It is an abecedarian principle of
evidence law that the opinion of the expert must fit the facts. This
expert's opinion did not, and the District Court properly excluded it.

IV.

The third ground of appeal raised by the defendants is that the
police officer who conducted the photographic array was allowed to
testify as an expert without disclosing his expert opinions pursuant to
Fed. R. Crim. P. 16(e). The record in the case clearly demonstrates
that the police officer was not testifying as an expert in photographic
arrays, but was instead a fact witness offering permissible opinion tes-
timony under Fed. R. Ev. 701. Consequently, no error occurred.

V.

The defendants' fourth ground of appeal relates to the refusal of the
District Court to allow the introduction of testimony concerning the

                    5
possible sentencing guideline range for Millward in order to impeach
his credibility. Yet Millward testified that he thought that he was
going to receive ten years, and the jury was informed that he could
get less. The defense was able to call one of Millward's attorneys; the
District Court merely precluded the testimony of his other attorney.
Such testimony would have been cumulative, and was properly
excluded. See Fed. R. Ev. 403.

VI.

The defendants next argue that the indictment against them should
have been dismissed because the government failed to preserve excul-
patory evidence and abused its subpoena power. The government
denies that it ever received the evidence, and questions its exculpatory
nature. Even if the government did receive the evidence in question,
the defendants have shown nothing more than that the government
was negligent in its handling of it. In order to prevail on a claim of
a due process violation, the defendants must show bad faith. See
Huldren v. Legursky, 16 F.3d 57 (4th Cir.), cert. denied, 115 S. Ct.
106 (1994). This they have not done.

Nor did the government abuse its subpoena power. The investigator
who served subpoenas on the trial witnesses asked if they desired a
pretrial interview. If they said yes, he wrote the date and time of the
interview on the subpoena he was serving. While this practice is not
to be encouraged, it does not convert the subpoena to appear at trial
into a subpoena to appear at a pretrial interview, and therefore the
government did not abuse its subpoena power.

VII.

The defendants' ninth ground of appeal, and the only one with
merit, is that the District Court erred when it failed to order the gov-
ernment to elect between Counts Four and Five in the indictment due
to multiplicity. Count Four charged the defendants with conspiracy to
kill an informant in violation of 18 U.S.C. § 371. As this Count con-
stitutes the conspiracy to commit the offense charged in Count Two,
however, the elements of the conspiracy which must be proved are set
forth 18 U.S.C. § 1512(a). Count Five charged the defendants with
conspiracy to violate the civil rights of the victim in violation of 18

                     6
U.S.C. § 241. The defendants argue that the essential elements of
these counts are identical. To prove the elements of Count Four, the
government must show that the defendants engaged in a conspiracy
to kill the victim with the intent to prevent her from communicating
to a law enforcement officer of the United States information related
to the commission of federal crimes. To prove the elements of Count
Five, the government must show that the defendants conspired to
injure, threaten, and intimidate the victim in the exercise of rights
guaranteed her under the Constitution to provide information concern-
ing federal offenses. Murdering the victim is one method of injuring,
threatening, and intimidating. The government argues that the ele-
ments of these two offenses have one difference: in Count Four, the
government must show that the victim intended to inform a federal
law enforcement officer, while in Count Five, all the government
must show is that the victim intended to inform some law enforce-
ment officer, whether state or federal.

This is too small a peg upon which for the government to hang its
hat. The Double Jeopardy Clause of the Constitution prohibits cumu-
lative punishments for the same offense. In Blockburger v. United
States, 284 U.S. 299 (1932), the Supreme Court held that where the
same act violates two separate statutory provisions, the test to deter-
mine whether or not the act constitutes two separate offenses is
whether each statute requires proof of an additional fact which the
other does not. Such is not the case here. While Count Four requires
proof that the victim intended to go to a federal law enforcement offi-
cer, Count Five only requires proof that the victim intended to go to
some law enforcement officer. As the government stated in its brief,
one can easily conceive of facts which, if proved, would constitute a
violation of Count Five, but not Count Four. One cannot, however,
conceive of facts which, if proved, would constitute a violation of
Count Four, but not Count Five. Blockburger requires that both stat-
utes require proof of an additional fact which the other does not. Here
only one statute requires proof of an additional fact; therefore, the
defendants, who received concurrent life terms on both Count Four
and Count Five, were subject to multiple punishments for the same
offense. The District Court erred when it failed to order the govern-
ment to elect between the counts. Therefore, we remand the case to
the District Court on this ground of appeal, with instructions to vacate
the defendants' convictions and sentences on Count Five. Because the

                    7
defendants received concurrent life terms on Counts Four and Five,
resentencing is not necessary.

VIII.

Of the remaining grounds of appeal raised by the defendants in
their briefs, none was argued at oral argument. Upon consideration of
the briefs, none of these grounds has any merit. Some further com-
ment is warranted upon the defendants' eighth ground of appeal,
namely, that the District Court erred when it denied defendant Wat-
kins' invocation of the marital communication privilege with regard
to his former wife, Debbie Heiney. The government correctly notes
that Watkins was a bigamist, and that his second marriage, to Cindy
Hadley, evidences an intent to permanently abandon his first mar-
riage, such that the marital communication privilege does not apply.
See In re Witness Before Grand Jury, 791 F.2d 234, 238-39 (2d Cir.
1986); United States v. Porter, 986 F.2d 1014, 1018-19 (6th Cir.),
cert. denied, 114 S. Ct. 347 (1993); United States v. Fulk, 816 F.2d
1202, 1205 (7th Cir. 1987); United States v. Byrd, 750 F.2d 585, 593
(7th Cir. 1984); United States v. Frank, 869 F.2d 1177, 1179 (8th
Cir.), cert. denied, 493 U.S. 839 (1989); United States v. Jackson, 939
F.2d 625, 627 (8th Cir. 1991); United States v. Roberson, 859 F.2d
1376, 1281 (9th Cir. 1988). However, Hadley also testified at the trial
as to communications between her and Watkins when they were mar-
ried. Normally, that would not raise an issue concerning the marital
communications privilege, because in most states, bigamous mar-
riages are void ab initio. In West Virginia, however, bigamous mar-
riages are merely voidable. See W. Va. Code§ 48-2-2(a)(1).
Authority exists for the proposition that, as is the case for marriages
ending in divorce, communications made during a voidable marriage
subsequently annulled remain subject to the privilege beyond the ter-
mination of the marriage. See People v. Dorsey , 120 Cal. Rptr. 508,
514-15 (Cal. Ct. App. 1975); People v. Mabry, 455 P.2d 759, 763-64
(Cal. 1969), cert. denied, 406 U.S. 972 (1972).

This interesting question need not be resolved today because defen-
dant Watkins did not object to Hadley's testimony at trial, and did not
raise it as a ground of appeal. Thus Watkins has abandoned this issue.
See Tucker v. Waddell, No. 95-2080, 1996 WL 265795, at *5 n.1 (4th

                    8
Cir. May 20, 1996) (finding an issue not addressed in the party's brief
or at oral argument abandoned).

IX.

For the foregoing reasons, the defendants' convictions are
affirmed, except for their convictions on Count Five. The case is
remanded to the District Court, with instructions to vacate the defen-
dants' convictions and sentences on that count.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS

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