United States v. Columbus Lee Phillips, United States of America v. Larry Lee Phillips

The appellants Larry and Columbus Phillips were each indicted on one count of theft from an interstate shipment in violation of 18 U.S.C. § 659 . Columbus Phillips was indicted under the same statute on a second count for concealment of stolen chattels. They were tried together, and the jury found them guilty on all counts. We find the defendants were prejudiced by the prosecution’s failure promptly to inform the court and defense counsel that it would seek to reopen its case because a government witness, who had lied on the stand, was prepared to recant his testimony. We reverse the conviction.

The Government’s case was that the defendants had stolen a truckload of wood paneling from a parking lot and had unloaded it in the corner of a lumber yard. The owner of the lumber yard had a son, age 17 years. The boy saw (or did not see — that was a key issue) the defendants unloading the paneling. In an interview with FBI agent Sanderson before the trial, the boy stated he had seen the defendants driving the truck and unloading the wood paneling. Agent Sanderson’s written report of the interview was available to the prosecutor and defense attorneys.

The prosecution called the boy as a…