*1 1079 Second, majority most, the taxpayer and the an immaterial breach of the IRS’s ignore the fact that the eventually required performance. IRS I thus would hold the schedule overassessments for both that the IRS substantially performed its Admittedly, scheduling obligations 1964 and 1967. the qualified under the Form 870 in accomplished 1964 was not August 1973, for until Octo- more than prior one month ber one month after the extended expiration of the statute limitations, collecting for defi- signed statute limitations when it the schedule for the taxpay- expired September ciencies had 30. er’s 1967 overassessment. Because the problematic. This fact is The Form IRS up did live to its end bargain of the says nothing long issue how timely fashion, about the tax- I believe this case is dis- payer arrangement intended for the tinguishable to re- from Nelson, v. Steiner open (7th main to the IRS’s fulfillment of F.2d Cir.1958), its Corp. Parsons v. conditions. And arguable while that it United (9th Cir.1987), open-ended, I think it more and the reasonable other cases majori- which the parties conclude that ty or taxpayer rely. intended agreement would remain in only force I thus would affirm the judgment of the until the statute of limitations had run on court, district although on different statutory period. collection grounds. Hence, I respectfully dissent. case, however,
In this I do not think that
scheduling the 1964 overassessment after expiration of the statute of limitations
constitutes a material breach of the IRS’s
required performance. (1) The facts are 1967 overassessment was sched- August
uled well Sep- before the expiration tember of the statute AJ-1779, Dante Appellant, TODARO # limitations; (2) that the 1967 overas- $6,237,660, sessment involved whereas FULCOMER; Thomas A. Ernest $231,991. only overassessment was Preate, Jr.; D. and Somerset words, In other taxpayer’s over of the 96% Attorney’s District Office. overassessments were scheduled before expired. statute limitations The IRS’s No. 90-3756. timely failure to schedule the remaining 4% United States Appeals, Court of is, mind, my It immaterial. is hornbook Third Circuit. only law material breach of contract obligations will entitle the non-breaching 12(6) Submitted Under Third Circuit Rule party to relief. 8,May 1991. sum, I disagree In with the majority Sept. 10, Decided 1991. qualified required Form 870 the IRS to Rehearing Denied Oct. 1991. schedule the overassessments before technically assessment was issued. The
agreement simply that, required at some prior
time to the expiration of the statute limitations, sign the IRS specified date,
overassessments. As of that the tax-
payer waived all statutory pre-assess- its
ment willingly submitted to as- that,
sessment. further believe
context of the Form agreement entire millions involved, of dollars
post-expiration scheduling $231,991
overassessment constituted, for 1964 *2 Stefan, M. and Dennis Thomas S. White Defender, Pitts- Public
Office of Federal Pa., appellant. burgh, for Atty., Dist. Young, Asst. A. Carolann Somerset, Pa., appel- for County, Somerset Attorney’s County Dist. Of- Trooper Blasko, lee Somerset the officer who arrested fice. Todaro and Kinsey, testified a passenger stopped vehicle for MANSMANN, Before NYGAARD speeding; that Blasko found stolen goods, ROSENN, Judges. Circuit *3 including numerous weapons, in the ve- hicle; that he handcuffed both Todaro and Kinsey; that he advised orally them OPINION OF THE COURT their rights; Miranda and Kinsey ROSENN, Judge. Circuit signed the written statement acknowl- appeal petition from the denial of a edging that his Miranda given were for a writ of corpus requires habeas us to him, but that Todaro sign refused to presumption decide whether the that state form. waiver In the court factual findings are correct should be prosecutor argued that the waiver form rejected because factfinding procedure was relevant because both defendants had employed by the state court did not ade- given statements that inbe evi- “w[ould] quately hearing. afford a full and fair De- dence later.” fendant, Dante convicted of bur- State Trooper testified, Marker stating glary and other various following offenses that he advised one of the burglary victims trial, a alleged contends that his co- go jail to secure the victim’s conspirator's appearance on the stand de- missing watch from Kinsey and that the prived Todaro of fundamental fairness in victim identified watch as his. State his criminal alleges Todaro trial. that a Trooper testified, James Bee also stating evidentiary hearing federal is necessary to that he took Kinsey’s down statement. prosecutorial establish whether misconduct When the objected defense to this line of occurred and co-conspirator’s whether his questioning, responded that invocation of the fifth unfairly he believed he was entitled to show the prejudiced him. The district court denied inconsistency between and Toda- petitioner’s petition evidentiary without an ro’s The statements. court sustained the hearing. We affirm. objection defense’s permitted and no fur- ther regarding questioning Kinsey’s state- I. ment. August 13,1985, On Todaro com- question of whether panion, Larry Kinsey, Albert were arrested testify first in conjunction arose with the County, in Somerset Pennsylvania, while testimony of Trooper State Bee. Defense traveling in an containing automobile sto- objected counsel relevancy grounds on property. len Todaro were testimony Officer Bee’s concerning an ex- charged with burglary four counts of hibit of the he sent form to ascertain Kinsey pled related offenses. guilty, permit whether had a carry a whereas Todaro elected to be tried a Following firearm. the court’s decision to jury and was theft, convicted of burglary, objection, sustain the mischief, criminal conspiracy, and state quested a conference side-bar at which he firearms alleges violations. Todaro argued that right he had the to use Kin- Kinsey’s invocation of the fifth amendment sey’s given statement arresting offi- privilege against during self-incrimination long cers as as Todaro’s name was not the trial set in motion a series of circum- conference, mentioned. At that side-bar prejudiced stances which him and resulted following exchange took place: in fundamental unfairness. Mr. Baca you Do in- [defense counsel]: appearance Prior to Kinsey’s on the wit- tend Kinsey? to call stand, ness other witnesses called Mr. [prosecutor]: Yelovich Sure. He’s prosecution had mentioned his name and jail. yesterday. talked to him given testimony had regarding Kinsey, in- cluding burglaries. victims of State going testify? Baca: Is he (3rd Cir.1991). F.2d Where the so. I’m think petition he’s for a writ him. I don't know what district court denies rely corpus in evi- say. of habeas the absence
going to
dentiary hearing,
two-step
employ
we
court ruled
First,
analysis.
petitioner
whether the
Id.
was inadmissible.
facts which entitle him to relief.
asserts
prosecution called
Later in the
Second,
petition
if the
Id. at 291.
does
Although
pled
he had
Kinsey to
allege facts that establish
constitutional
yet
Pri-
been sentenced.
guilty, he had
violation, we must then determine whether
Kinsey,
testimony,
from the wit-
toor
evidentiary hearing
prove
needed
judge and
stand,
to the trial
turned
ness
those assertions.
Id.
*4
his
wished to invoke
him that he
informed
After
privilege against
petitioner
self-incrimination.
A
cor
on writ of habeas
side-bar,
and
conferring
pus
merely
with counsel
the
will not succeed
because
called,
he
the
prosecutors’
trial recess that
during
then
a
actions “were undesirable or
grant
he
the
judge
universally
ruled that
trial
even
condemned.” Darden v.
Kinsey
yet
had not
privilege
been
477
106
Wainwright,
since
U.S.
S.Ct.
judge
2464,
(1986). Rather,
then excused the
144
2471,
sentenced.
91 L.Ed.2d
questioning and without
prosecu
witness without
we must determine whether the
“
The court denied
explanation
jury.
‘so
trial
tor’s actions
infected the
with
for a mistrial.
resulting
the motion of
defense
unfairness as make
convic
” Id.,
process.’
citing
a denial of due
tion
preceding
alleges that the
testi-
Todaro
637,
Donnelly
DeChristoforo,
v.
416 U.S.
regarding Kinsey and the circum-
mony
1868,
(1974).
94
II.
question involv
knew
or some other
prisoners
him;
inferences from this
ing
State
entitled to relief
corpus
pros
testimony
on writ of habeas
in federal
critical
court
added
showing
only upon
a violation of
form not
federal
ecution’s case
Thus,
argues
he
constitutional standards. Milton v.
cross-examination.
Wain
377,
2174,
the trial
right,
U.S.
of these circumstances
the face
Thus,
(1971).
fully develop
33 L.Ed.2d
material facts at
“we sit
retry
pros
not to
state cases de novo but rather
determine whether
hearing
proceedings
Kinsey knowing
of his intent
to examine the
state
ecution called
Therefore,
court to determine if there has been a
fifth amendment.
to invoke the
fact-finding proce
argues
violation of federal constitutional stan
Todaro
Fulcomer,
Zettlemoyer
employed
dards.”
the court at side-bar did
dure
adequately
him a
ty
afford
full and fair
Sheriff
Kormanik. The
rep-
hearing
provided by
28 U.S.C.
resented to the court that when this case
2254(d)(6).
concludes that under
He
was scheduled for
§
Kinsey was in jail
these circumstances the district court erred
in another county and the Commonwealth
granting
in not
him evidentiary hearing
petitioned for his return. He was not re-
when it held
prosecution’s
irrelevant
day
turned until the
before trial when the
knowledge Kinsey’s
anticipated invoca- assistant
attorney
district
then saw him.
right.
tion of his fifth amendment
meeting
Their
was cordial
told
him that testifying in
Todaro, referring to an analysis in Nam
defendant
pose any
would not
problem for
et v. United
83 S.Ct.
him. This statement is not
contradicted
(1963),
concerning
any reliable evidence. Defense counsel has
whether reversible error is invariably com
never claimed that Kinsey informed him
mitted whenever
privi
a witness claims his
prior to trial that he would
testify.1
answer,
lege
argues
not to
prosecuto-
Indeed, the defense counsel himself asked
rial misconduct
occur
“when
whether Kinsey
Government makes a conscious and fla
Neither do we
affidavit
grant attempt to build its case out of infer
Kinsey stating
that he
anyone
informed
arising
ences
from the use of the testimoni
*5
prior to trial of his decision
testify.
not to
privilege,”
al
1154-55,
id. at
83 S.Ct. at
It
only
is
who,
the defendant
pre-
himself
and that in the
given
circumstances of a
dictably, alleges that his counsel informed
case, inferences from a witness’ refusal to
prosecution
of Kinsey’s decision to in-
may
answer
add
pros
critical
to the
voke the
privilege.
testimonial
Under
ecution’s case in a
form not
circumstances,
these
we hold that the state
Namet, however,
cross-examination.
did
trial
fact-finding procedure
court’s
in which
prisoner’s
involve state
writ of habe-
it
prosecutor
determined that the
did not
corpus,
but a
appeal
direct
from con
engage in misconduct afforded the defen-
Moreover,
viction.
the Court
rejected
“full, fair,
dant a
adequate
hearing.”
arguments
those
though
Namet even
2254(d)(6).
28 U.S.C. §
counsel for the witness had announced to
the Government that his clients
in
Todaro also contends that the dis
voke the
privilege questioned.
testimonial
if
trict court erred in
granting
him an
The Court
observed
“the
evidentiary hearing to
the cor
determine
accept
need not
face
every
at
value
assert
rectness of the trial
finding
court’s
that the
privilege,
ed claim of
no matter
friv
how
jury
overhear
did not
invocation
olous.”
at
Id.
The Court:
If
in fact.
stances there’s
Kinsey: No.
Mr.
made
request
this
had been
he had—if
up, please.
counsel come
Will
The Court:
loud,
matter.
you’d have another
out
(SIDE-BAR)
preju-
Now,
you
you’re
think
suppose
man,
Kinsey, has
Mr.
This
The Court:
merely by
appear-
anyway
diced
plead the
me that he wants to
just told
things.
ance of
Fifth;
does not want
he
plead the Fifth.
Yes,
He can’t
Mr. Yelovich:
Your Honor.
Mr. Baca:
guilty.
pleaded
already
He’s
fact that the
judge found as a
The trial
pleaded
Oh,
already
he’s
The Court:
Al
Kinsey’s request.
jury did not hear
sentenced?
he been
But has
guilty.
twice,
request
though Kinsey stated his
No, he hasn’t.
Mr. Baca:
did
him the first time and
judge
not hear
right?
that his
Isn’t
Court:
Only counsel heard it at all.
neither
I haven’t
I don’t know.
request both
stenographer heard the
checked that.
times,
stenographer invariably sits
but
twenty
the trial for
The court recessed
proximity to the witness.
resumed, the follow-
minutes and when
stand,
following a
Kinsey take the
see
ing occurred:
dis
purpose
for the
recess called
short
(MR.
SIDE-
KINSEY APPROACHED
law that was not
cussing
question
“a
BAR)
courtroom without
anticipated,” leave the
Kinsey, you’re
The Court:
occurrence
explanation.
[sic]
other
not have to
quest
granted.
You will
fact,
most,
In
was,
jury.
puzzling
go
now
testify. You
back
Baca, moving
for a mis
defense counsel
jail with the Sheriff.
had
*6
complaint
jury
that the
made no
(MR.
LEFT THE COURT-
KINSEY
colloquy or
invoca
overheard the
ROOM)
the con
the fifth amendment. On
tion of
Honor,
approach
may we
his motion was “because
trary,
Mr. Baca: Your
the basis of
to have
prejudiced
the Bench?
the defendant
it ha[d]
testifying.”
Kinsey go
Mr.
off without
(SIDE-BAR)
hardly
said to
incident could
be
This brief
Honor,
Baca: Your
basis
trial with unfairness
“so infected the
calling Mr.
the Commonwealth
a denial
resulting
conviction
as to make
being
stand and him
released
to the
Donnelly
process.”
due
Fifth Amendment
such based on his
DeChristofo
ro,
40 L.Ed.2d
94 S.Ct.
for a
U.S.
request, I would like to move
(1974).
that the
We therefore conclude
in this case because it has
mistrial
deny
in
to have Mr.
no error
prejudiced the defendant
district court committed
testifying.
hearing.
Kinsey go
ing
evidentiary
off without
Todaro an
Well, I
like the record
The
Court:
find a violation
Neither do we
request was
to show that the witness’s
right to
petitioner’s
sixth
quietly
Judge.
It was not
made
adequate opportunity for cross-examina
an
Courtroom,
announced out loud in the
poten
acknowledge the
Although we
tion.
and there’s no reason to think that the
infer
impermissible
jury
tial for a
to draw
jury
heard it.
It’s true the
saw
brief, unex
co-conspirator’s
ences from a
him called
and then re-
stand
stand, to
the witness
appearance on
leased,
plained
explana-
but there’s
been
corpus,
of habeas
on a writ
be addressable
Attorney
tion. The
also
District
has
“
refusal to
us,
from witness’
‘inferences
yet,
told
not on the record
weight
added critical
man told him
answer
he was
have]
[must
request.
prosecution’s case in a form
surprised
So he was
at the
to the
correct,
cross-examination,
Am I
Mr. Yelovich?
and thus un
subject to
” Doug
the defendant.’
fairly prejudiced
right,
Right.
That’s
415, 420,
Alabama,
85 S.Ct.
380 U.S.
las v.
Judge.
(1965)
(quoting petition
recent and related offenses that reaching In this conclusion I am mindful occurred in the same area in were found of the role of the federal courts in evaluat- the vehicle. attempted Todaro to conceal ing prisoners. the habeas claims of state identity by giving an incorrect name to may Before a federal court overturn a police, recognized but Officer Marker resulting conviction from a state trial him, having identified known Todaro ..., merely it must not be established previous experience. evidence, from a undesirable, that the er- [state action] together taken in light viewed the most roneous, “universally con- or even Commonwealth, favorable to the sufficient- right that it some demned” but violated ly guilt. established Todaro’s the defendant guaranteed which was to
by the Fourteenth Amendment.
III.
414 U.S.
94
Cupp Naughten,
v.
(1973).
396, 400,
constitutional seem at all a con- did not Kinsey, be based “error versible misconduct, testify. During when Kinsey would prosecutorial that cept of certain and fla- Bee, conscious makes a follow- government Trooper the examination out of infer- its case attempt to build grant exchange took ing place: testimonial use of the arising from ences Kinsey? call youDo intend to Mr. Baca: where, “in the circumstances privilege” or jail. in He’s Mr. Yelovich: Sure. case, from a witness’ inferences given aof yesterday. to him talked weight to critical added to answer refusal testify? he to going Mr. Baca: Is subject in form not prosecution’s case I’m so. not think unfairly prej- thus to cross-examination he’s him. I don’t know what rely to 186-87, Id. the defendant.” udiced say.1 going to articulated principles at 1154-55. The S.Ct. to a constitution- in Namet were “elevated circumstances, I unable am these Under Alabama, 380 U.S. plane Douglas v. al prosecutor did not say either (1964).” 1074, 13 L.Ed.2d S.Ct. 934] [85 flagrant attempt to “a conscious and make Callahan, 272 n. Ziegler arising from its case out of inferences build Cir.1980). (1st privilege” or that of the testimonial use from a witness’ prong is clear that “inferences second Namet relies on the Todaro not critical to answer claiming of his constitutional refusal add] a violation [did case in a form repeatedly prosecution’s refer- rights. argues weight He eliciting testimony from and this Kinsey in ring subject to cross-examination not witnesses, dis- “the assistant Namet at prosecution unfairly prejudiced [Todaro].” opportunity attorney missed 186-87, trict at 1154-55. 83 S.Ct. put jury.” before the Kinsey’s name surrounding evaluating In events references, prosecu- coupled with the These stand, the state appearance on the the stand and Kin- calling Kinsey tor declaration of concluded that a trial court if the declining testify, especially sey’s corrective action was mistrial or other invoke would knew that jury did not hear necessary because the amendment, “added critical fifth and, fifth amendment Kinsey invoke the case in a form prosecution’s therefore, prej- not have been Todaro could cross-examination_” In the conclusion reaching udiced. Namet, at 1155. testify had not been Kinsey’s refusal petition, that in In his Todaro states Jan- relied ex- the court overheard uary, counsel Todaro informed the for they statements clusively on counsel’s testify prosecutor that Despite the fact Kinsey. not heard had also against Todaro in case. Todaro this reporter was able to hear *8 March, Kinsey informed that in states Kinsey's statements with record all of testify not Todaro’s counsel he would that jury was never problem, the apparent no avers, Finally, Todaro against Todaro. Kinsey, appar- polled. The court dismissed assertion, prosecutor’s that contrary to the hearing the with ently the of within day the on the Kinsey notified following words: the not wish to he did
prior to trial that Kinsey, you’re The Court: [sic] The district court testify against Todaro. have to granted. You will not quest is appar- allegations but explore did not these go testify. may You now back ently prosecutor’s credited the the jail with Sheriff. him, on the afternoon Kinsey that had told court, considering the totali- The district testify. The prior to that he circumstances, deferred to the ty prosecutor’s of these district the accepted court was, fact, prepared to exchange, determine whether he the state trial 1. On the basis of this should, Kinsey arguably, have examined court jury the in order to out of the of trial respect state court’s with applied conclusion the the court legal correct standard despite the fact prejudice that the issue in evaluating Todaro’s claim of prejudice. fully prejudice by of was never evaluated evidentiary An hearing required is with prejudice the state trial court. The analy- regard disputed the factual matters and was skeletal at sis best and was under- independent evaluation must be made of any taken without reference to articulated the overall claim of prejudice. Moreover, legal standard. un- factual It bemay that even if the outstanding derpinnings of the of claim were factual questions were not resolved favor- given only cursory prosecu- attention. The ably to Todaro still would have a equivocation tor’s and Todaro’s statements prejudice. viable claim of The danger of regarding whether the knew “guilt by association” inherent in a case Kinsey testify that would refuse to were involving co-conspirator’s a assertion of the not addressed and inquiry was made as fifth amendment privilege is obvious. jury actually Kinsey say. what heard There is strong argument that danger questioning What there was did not far go “guilt by of association” present was enough; the trial stopped court short of this case even if it is determined that the asking questions might those which well jury did not Kinsey’s overhear assertion of have prejudice. established the fifth privilege. At the time circumstances, Under these that believe that was called to the stand and was incumbent district excused testifying, without jury do more presumption than apply thoroughly familiar with and his 2254(d) correctness in 28 U.S.C. embodied § alleged role in the though case. Even Kin- finding to the state trial court’s that Toda- sey did testify, was made ro not suffer any prejudice. The case- aware jail was in may well law makes clear pre section 2254 guilt used as substantive sumption does not where it apply appears evidence against Todaro or have in- the material adequately were not facts ferred that testimony would have developed in proceeding the state or where implicated Todaro. The likelihood that Kin- fact-finding procedure employed by the sey’s appearance was prejudicial is in- state adequate court was not afford creased the court’s explain failure to full hearing.2 and fair In those circum Kinsey’s dismissal or to offer caution- stances, an evidentiary hearing required. ary instruction. These are matters which Sain, 293, 313, Townsend v. the district court should have addressed. (1963); Smith stands, On the record as it I am unable Freeman, (3d 892 F.2d 338-39 Cir. say that Todaro was deprived 1989); Cuyler, Sullivan v. 723 F.2d “fundamental fairness (3d criminal tri- Cir.1983). al,” Bisaccia v. Attorney General It is our responsibility to examine N.J., (3d State Cir. findings of the state to determine [court] 1980), process and that his due were they if are adequate support pre- abridged. would, therefore, vacate sumption 2254(d). of correctness under § the order of the district court and remand findings These must be sufficient en- this matter with instructions that an evi- the district able court to fulfill its obli- dentiary hearing be held in the gation to context of they sup- determine ported evaluation claim preju- overall evidence and that cor- *9 dice. standards of applied. rect law were (6th v. Jago,
Fowler 988-89
Cir.1982).
I am not convinced that the state trial findings
court’s factual are reliable or that paragraphs In its brief of but a few the Com- The Commonwealth does not address the ade- 2. argues simply monwealth the state trial quacy factfinding procedure. state court’s conclusions entitled to deference.