U.S. v. BORUFF

No. 88-1347.

870 F.2d 316 (1989)

UNITED STATES of America, Plaintiff-Appellant, v. James Othel BORUFF, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

Opinion on Denial of Rehearing June 8, 1989.


Attorney(s) appearing for the Case

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., James Blankinship, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Austin, Tex., for plaintiff-appellant.

Robert Ritchie, Knoxville, Tenn., for defendant-appellee.

Michael Salnick, West Palm Beach, Fla., for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.


ALVIN B. RUBIN, Circuit Judge:

We hold that the government may call to testify at trial a third-party witness called by the defendant at a pretrial suppression hearing whose testimony at that hearing was favorable to the defendant's motion to establish standing and whose identity was not previously known to the government, but whose testimony to the same effect at trial inculpated the defendant.

I.

On July 9, 1985, James Boruff, accompanied by Russell...

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