*1 damages The ers’ bag). had to ease must demand. The on the it never counter- judge refigured to the to fix claim be remanded district must be also. damages. these Finally, argues Lake River damage remain. The Two issues failed mitigate Carborundum to its dam expenses first Carborundum’s of concerns ages by accepting Lake offer River’s to bagged to its delivering Ferro Carbo cus product bagged place deliver the and replace impounded Lake tomers to proceeds in escrow. But a converter is not judge gave River. The district Carborun proceeds entitled to retain the of the con bagged of the dum the full market value temporarily. version even Lake River had argues Lake Ferro Carbo. River that it an to opportunity exposure by limit its sell pay have to should not for Carborundum’s ing bagged product on Carborundum’s expense selling additional Ferro of Carbo— deducting account and what it claimed was additional in the sense that is Carborundum due it “lien.” on its Its to failure follow being credit given for the full retail value this course reinforces our conclusion that product that Lake River withheld. the assertion of the lien was a naked at suppose explain, To had Carborundum tempt hostage to hold Carborundum $1,000 bagged an order for worth of Ferro view, Lake River’s view—an erroneous as Carbo, supposed Lake River was it has enforceability turned out—of the refused, deliver; and because Carborun damage formula the contract. transportation dum a cost of incurred $100 The judgment of the district court shipment bagged to make a substitute in part part, affirmed and reversed in and Ferro Carbo customer. Carborun the case is returned to that court to rede- get $1,000 from dum would still the cus termine parties’ damages both accord- tomer, price if that covered the trans and principles opinion. ance with the this portation profit. make a cost would still parties may present additional evi- sense, therefore, is that what cost remand, dence on and shall bear own separate damage, loss? all item On costs in this Circuit court. Rule shall (related case) Ferro to this sold Carbo apply on remand. Midwest, in the Carborun Carborundum Part, Part, Affirmed in Reversed and price, dum the full either received market Remanded. case from its customers of Ferro actually them, Carbo or delivered to from
Lake River in case of the Ferro Carbo
that Lake River refused to deliver. Hav price designed received cover all sale,
expenses get seller cannot also damage additional award for of those America, Appellee, UNITED STATES expenses. If, however, the additional Ferro CO., INC., Appellant.
Carbo that Carborundum delivered to its BEN M. HOGAN midwestern customers in substitution No. 84-1757. to, previously Ferro delivered Carbo Appeals, United Court of impounded by, Lake River would have been Eighth Circuit. price sold in the East at the same but lower cost, Carborundum would have an ad Nov. Submitted 1984. loss, profits, ditional the form of reduced July 25, Decided could for which it recover additional dam Rehearing Rehearing En Banc Denied ages. prove made no such But it effort Sept. Maybe a loss. it had no unsatisfied eastern customers, expanded rather than shift output
ed to fulfill its midwestern custom- *2 BRIGHT, Judge,
Before Senior Circuit BOWMAN, and McMILLIAN and Circuit Judges.
BOWMAN, Judge. Circuit Hogan Company, Defendant Ben M. Inc. *3 corporation (Hogan), engaged a in the busi- construction, highway ness of was indicted by grand jury a on one count conspiring to restrain trade in violation of the Sher- Act, 1, man on U.S.C. and three asso- § ciated counts of mail fraud under 18 U.S.C. Hogan was found on all § charged counts in the indictment. The Dis- $800,000 trict Hogan Court fined on the (Count One) $1,000 Sherman Act count and (Counts each on the mail fraud counts Two Four). through Hogan appealed. We re- verse conviction on Count One and remand this case to the District Court for a new trial on Count One. We affirm Ho- gan’s through convictions on Counts Two Four. theory upon Hogan prose-
The was was, essence, cuted May between September 1979 and conspired with A.P.T. Company, Construction Inc. (A.P.T.)1 themselves, to allocate between through rigged bids, the submission of work contracts highway for certain state projects.2 construction witness, principal Thompson, pres- Leonard A.P.T., request ident of testified that at the Moore, president Hogan, of William vice agreed May comple- he 1979 to a submit Rock, Ark., Light, Robert V. Little and bid, i.e., mentary higher a bid than the bid Braun, Nashville, Tenn., ap- Richard J. for submit, Hogan planned project on pellant. project Two bids were submitted on Freilicher, D.C., Washington, Frederic one from and one from A.P.T. Ho- appellee. gan’s bid was the lower and charged projects: 1. A.P.T. was in the same indictment tracts for the work to be done on these Hogan. with the same offenses as was trial, public project Prior to a a announcement of for which a pleaded guilty made; A.P.T. to Counts One and propos- contract is to be awarded is a bid agreed cooperate govern- Two and with the contractors; requested by al form is interested a return, investigation. ment in its requested propos- list of contractors that have Four, agreed ment to dismiss Counts Three and public; completed proposal al is made form $150,000, to recommend that A.P.T. be fined forms, signed which include a statement to be prosecute any prior and not to A.P.T. further for proposal the bidder that the is made without rigging. act of bid collusion, submitted; public are and a bid let- Thereafter, ting generally is held. the contract highway projects 2. State are authorized specifications is awarded to the The state en- lowest bidder. highway commission and for the courages competitive bidding prefers not to projects High- are drawn the Arkansas State single on the basis of a bid. award a contract way Transportation Department. public A bidding process employed awarding con- According never been keep awarded contract. had instructed to a bid Thompson, exchange amount, that, for A.P.T.’s com- any particular above project fact, on Moore plementary bid they standing up- instructions to promised to return the favor in future. price date bids with reductions if a down- price during pendency ward fluctuation July Thompson testified that in he of a bid made it feasible to do so. Fresh- telephoned request Moore with a Ho- our Construction’s bid estimator testified bid in excess of the amount A.P.T. gan profit margin compa- that he cut the on his project and that planned to bid on ny’s project bid on 60179 in an effort agreed Thompson also to do so. Moore secure the contract. that he was able to make similar testified arrangement regarding project 60179 with eligible projects Others to bid on the Freshour, president of Freshour Con- Jack question they testified that were not con- (Freshour Company Construc- struction regarding bidding tacted *4 A.P.T., tion).3 Hogan, and Freshour Con- projects alleged by Thompson to have been The project struction bid on 60179. con- rigged. Thompson, however, testified that project on awarded tract 60179 was unnecessary it was to contact other bid A.P.T., proved low to be the bidder. proposal plants holders because their were project located so far from the Thompson sites that Sep- further testified that in impossible would have been the from telephoned he Moore with a tember standpoint transportation request Hogan that costs for them bid excess bid planned to have underbid. project A.P.T. to submit on agreed Thomp- that Moore to do so. reversal, Hogan argues For that testified that when the son he made same improperly the District Court instructed Freshour, request Freshour told him jury regarding the the interstate commerce Freshour that Construction did not intend element of Sherman Act violation project on to bid 60234. and A.P.T. charged in Count One of the indictment. project were bidders on agree, We and we therefore reverse Ho A.P.T. was the low bidder was award- gan’s on conviction Count One and remand the contract on project ed this case to District Court for a new Thompson’s testimony was contradicted trial on One.4 Count several witnesses. acknowl- Moore makes a also number of other edged that he had had conversations with claims, all of which we carefully have con- Thompson concerning projects 60173 and sidered and have found to be without merit. entering any agree- 60234 but denied into will, however, Hogan’s We discuss addi- Thompson ments with rig bids. Fresh- they tional to the extent claims that are not our testified that he never discussed mak- resolved our reversal for instructional ing complementary bids with or error on Count One. anyone else. Freshour’s wife testified had Thompson, she never encountered Thompson’s suggests
while
testimony
I.
present
she had been
on one occasion when
correctly
Court
District
character-
he claims
have met
at
with Freshour
which,
concerning
ized this case as one
acts
Freshour residence.
proved,
if
per
are deemed
se unreasonable
Hogan’s
asphalt
so,
bid estimator and its
under
Act. Having
the Sherman
done
superintendent
plant
they
testified that
jury
the court instructed the
that:
any
is
3. There
no
regard-
indication in the record
Four. Therefore the instructional error
proceedings against Freshour
Construction.
prejudice
interstate commerce did not
Ho-
Four,
gan
respect
through
with
to Counts Two
4. While an effect on interstate commerce is an
gave separate
District Court
in-
which the
charged
element
the Sherman Act violation
structions.
One,
Count
is not an
of the mail
element
charged
through
fraud violations
Two
in Counts
types
regarded
of conduct are
of innocence with which the
Certain
law endows
per se. This means
as unreasonable
the accused and which
every
extends to
doing of the act itself consti-
the mere
crime,’
element of the
‘invade
[to]
[the]
restraint on inter-
tutes an unreasonable
factfinding function’ which in a criminal
commerce,
necessary
state
and it
assigns solely
jury.”
case
law
committed,
why the acts were
to consider
Montana,
Sandstrom v.
U.S.
industry,
or
or their effect on
2450, 2459,
(1979)
fies due
639,
(1981).
S.Ct.
9. This "reasonable
standard of ma-
disclosure____”
request
defense’s
Id.
teriality is taken from Part III of Justice Black-
opinion
Bagley. Only
mun’s
in United States v.
Hogan similarly
claims that it is entitled to
joined
Justice O’Connor
in Part III of Justice
Brady
relief under
because the Moore interview
White, however,
opinion.
Blackmun’s
Justice
notes could have been used to rehabilitate
concurring opinion joined by
in a
The Chief
testimony.
argument
Moore’s trial
This
is mer-
Rehnquist, approvingly quot-
Justice and Justice
government
attempt
itless. The
did not
to im-
probability”
ed the "reasonable
standard of ma-
peach
testimony regarding
Moore's
the issue on
teriality found in Part III of Justice Blackmun’s
Hogan
opinion.
claims the notes could have been
Justice Blackmun finds this standard
“sufficiently
impeachment,
used for rehabilitation. Absent
request,’
flexible to cover the ‘no
Moreover,
'general request,'
‘specific request’
there is no basis for
and
rehabilitation.
cases of
prosecutorial
assuming
even
failure to disclose
that material such as
evidence favor-
the Moore
accused,”
additionally
able to the
but
notes could be deemed
he
ad-
favorable to the accused
reviewing
Brady,
imagine
dresses how
courts should consider
under
it is hard to
a situation
specificity
request
of the defense’s
where
for evi-
evidence claimed to be of value to the
making
materiality
solely
dence in
purpose
bolstering
determinations
of
defense
for the
of
favorable,
probability"
unimpeached
under
the "reasonable
testimony
standard.
witness’s
will
Hogan
Jencks Act
and
B.
material
because
any
may
claim
regard-
waived
it
have had
Act,
3500,
Under the Jencks
18 U.S.C. §
portions
those
the Thompson
notes
witness
for the govern-
when a
testifies
ordered disclosed
District Court.
prosecution,
govern-
ment in a criminal
may, upon request by
ment
the defendant
Act,
part,
The Jencks
in relevant
defines
following
and
the witness’s direct testimo-
stenographic,
a statement as “a
mechani-
required
ny,
produce any
be
to
statement
cal, electrical,
recording,
or other
or a tran-
of the witness which relates to
wit-
thereof,
scription
substantially
which is a
testimony. Hogan
pre-
ness’s trial
made a
recital
oral
verbatim
of an
statement made
for,
government
request
trial
and the
vol- by
contemporane-
witness and recorded
[a]
agreed
untarily
produce
prior
to
five days
making
with
ously
of such oral state-
trial, to
Jencks Act material
in the
3500(e)(2).
ment.”
U.S.C. §
government’s possession.
appeal,
On
Ho-
Plainly,
Thompson
notes when
gan
raises
Jencks Act claim. Because
in
entirety
their
do
viewed
not constitute
upon
this claim seems to
focused
be
Jencks Act
they
materials because
are not
notes,
Thompson
we will discuss it in the
statements within the
meaning
context of those notes.
Cuesta,
Jencks Act. See United States v.
apparently concluded
(5th Cir.),
denied,
satisfy probability" the “reasonable standard of the Moore and Freshour notes in 11. event, materiality. any entirety In do constitute mate- in this not Jencks Act case Hogan rials and therefore has no satisfy viable Jencks Moore notes do not that standard. respect Act claim with to them. c. fact, court that a trial we believe notes. extrap- process employ such ought not 16(a)(1)(A) Rule of the Federal Rules of circumstances particular unless olation requires Procedure Criminal compelling. In our extremely are of a case ment, defendant, upon request of a to dis- circumstances
view,
it is doubtful
or recorded state-
close relevant written
as
fairly be characterized
case can
of this
defendant, as well as
ments of the
however,
decline,
to de-
We
compelling.12
by
oral statement made
substance
District Court
or not the
whether
termine
response
interrogation
the defendant
Thompson
ordering portions of
erred in
any person
by
then known
the defend-
Campbell v. United
notes disclosed.
government agent,
Cf.
487, 493,
which the
ant to be
States,
373 U.S.
intends to offer in evidence at
government
(1963) (determination
1360,
clarified to those The indictment proof reject charged and the at trial. We this claim. Hogan conspiring with rig to bids Act; violation of the Sherman that charged Hogan The indictment charge changed by was not conspiracy rig an single with a to bids on voluntary and, ment’s subject disclosure to unspecified highway projects of number the interstate problem commerce discussed Although a bill central Arkansas. formal opinion, in Part I of proved this was at ordered, particulars of was never merely trial. violation shown was nar- voluntary a filed disclosure charged. rower than the violation Under trial, specifying two months before three circumstances, Hogan these preju- was not projects Hogan on to which was believed — Miller, diced. See United States participated rigging have in bid and defined -, 1811, 1814-16, U.S. 105 S.Ct. 85 County “central Arkansas” as Pulaski and (1985).15 L.Ed.2d 99 adjacent voluntary counties. The disclo sure also referred to two to four other
unspecified projects on purport which bids IV. edly rigged Hogan’s cooperation. were with Hogan claims it preju that was Hogan contends was charged thus by diced the introduction at trial of A.P.T.’s with conspiracy rig a massive to to five supra note plea. See 2. Govern projects multi-county seven bids on in a ment counsel informed the District Court area, proof while the at trial adduced relat it anticipated by use defense counsel projects single ed to three on bids a guilty plea impeach of Thomp A.P.T.’s to county.14 credibility proposed son’s and it first
Clearly was, bring jury’s allowed Hogan to to the attention on the basis of the guilty plea. indictment the matter of A.P.T.’s voluntary and the Tr. at disclosure, 112, objected notified well in advance 147-49. Defense of trial counsel charged generally action, it was rigging with on to this course bids of Tr. at 114, County projects way three Pulaski but to which in no denied that counsel related, proof at Hogan trial and had guilty plea intended to use the to attack every plead to opportunity to Thompson’s credibility. and defend The District Court Hogan 1979, argument makes a related projects April that the on bids willing two was Freshour proof separate rigging conspira- project established bid Hogan to on do so ar- cies, single conspiracy gues April rather than projects with that reference to these is, however, Hogan charged. which was conspiracy There fixes commencement of the at a Hogan’s substantial evidence in the point preceding May record from which a involvement single, reasonably thus, could find a proof overall con- at of trial was a spiracy concerning projects conspiracy charged. Thomp- than broader 60234. Such a explanation by Hogan conclusion is not undermined son’s first was elicited the fact that multiple there evidence of cross-examination was consistent with i.e., sub-conspiracies, agreements of Thompson's grand jury at testimony, copy made lettings, the time of each three bid provided consti- which had been in advance objects tuting conspiracy. seriously of the overall See preju- trial. cannot claim States, 513, (8th Koolish United 340 F.2d dice on the question basis of an answer to a Cir.), denied, solely cert. 381 U.S. challenge Thompson’s asked And, (1965). contrary Hogan’s L.Ed.2d 724 assertions, credibility scope and which exceeded the examination, single conspiracy especially Hogan, not trans direct when multiple merely by into lapse formed ones availability Thompson’s grand based on the Vila, of time. United States v. jury testimony, 599 F.2d must have known what answer (2nd Cir.), denied, Furthermore, cert. Thompson likely give. would (1979). conspiracy April evidence of a 1979 would bearing Hogan; upon no have whatsoever unpersuaded implicate Hogan respect 15. We also are did alterna- with prejudiced by Thompson’s April projects, spoke only tive claim that it was he explanation willingness agreement of Freshour’s to submit A.P.T. Con- between and Freshour 60179; Therefore, complementary project Thomp- bid on required struction. was not agreed, son against any charge testified that because he had at at trial defend that it request, complementary Freshour’s to submit not been informed of the indictment.
1303
(1983)
government
(relying
Wiesle)
counsel would be
ruled
United States v.
(co-defendant’s
the fact A.P.T.’s
permitted
prior
to introduce
of
conviction introduced
guilty plea during its direct examination of
acknowledgment
to show
of participation in
Thompson.
crime);
United States v. Basic Con
Company,
570,
(4th
struction
711 F.2d
574
following cautionary instruction was
—
Cir.),
denied,
U.S.-,
cert.
104 S.Ct.
given
Thompson testified concern-
before
(1983)
(given
L.Ed.2d 330
guilty plea:
instruction,
cautionary
court’s
no error for
guilty plea,
of a witness’s own
[E]vidence
jury
tell
court
to
of co-defendants’ nolo
is,
Compa-
A.P.T.
that Mr.
for
pleas although
contendere
it is better to
ny,
except
cannot
used
to
assess
simply
jury
tell
that cases of co-defendants
credibility of the witness and also as an
disposed
how).
had been
of
saying
without
acknowledgment
partic-
of
witness’s
ipation
charged,
in the offense
but it We find the
guilty
introduction of the
cannot be considered as substantive evi- plea in this case to have been in keeping
dence of the defendant Ben
Com- with United States v. Wiesle and thus
pany’s guilt,
guilt
and no inference of
as within the District Court’s discretion. The
Hogan Company
to the Ben
can be in-
jury’s
plea
carefully
use of the
was
limited
plea.
ferred from A.P.T.’s
by the District Court
to assessment of
Thompson Transcript at 3. Government Thompson’s credibility and to A.P.T.’s ac
questioned Thompson briefly
then
counsel
knowledgment
Thompson participated
plead-
the fact that A.P.T.
establish
charged.
the offense
needWe
not hold
cross-examination,
guilty.
ed
in an
On
ob-
plea improper
the introduction of the
mere
attempt
impeach Thompson’s
vious
cred-
ly
injected
because it first was
into the case
ibility,
Hogan questioned
counsel
on direct examination
Thompson extensively
guilty
about A.P.T.’s
Thompson.
Kop
United
Cf.
plea.
charge
Id. at 51-54. In its formal
to pers
290,
(2nd
Company, 652 F.2d
jury,
again explicitly
the District Court
Cir.),
denied,
1083,
cert.
454 U.S.
102 S.Ct.
jury
cautioned the
that evidence of A.P.T.’s 639,
(1981) (references
V. describing types struction of conduct challenges to makes additional *11 per considered unreasonable se under the given by jury the the District instructions pre- Sherman Act contained a conclusive Court, as as to the District well Court’s sumption of an effect on interstate com- give to particular two instructions refusal which improperly merce removed that ele- Hogan. proposed by We have examined of from ment the offense the consideration charge jury the to the as a and find whole jury. of supra. the See Part I I also Hogan’s remaining challenges analysis (govern- concur the II Parts court’s instructions are meritless. We also ment nondisclosure of exculpatory material find that the District Court did not abuse defendant), (vari- and statements of the III refusing discretion to instruct the ance), (instructions V discovery and other requested Hogan. Similarly, as we evidentiary matters), and (prosecu- and VI reject Hogan’s regarding claims of error misconduct). torial discovery evidentiary other and various Our review discloses that these matters. IV, respect With to I acknowledge Part entirely were within the matters District analysis therein of anticipatory the soundly Court’s exercised discretion. guilty plea introduction of APT’s is consist position ent with the set forth for this
VI. Wiesle, Circuit in United 542 F.2d (8th Finally, govern Cir.1976). claims that I separately write ment improperly injected govern only counsel my to restate belief that the better credibility ment counsel’s into the trial and rule to government not the “allow to misstated the evidence. We have con introduce part evidence as of its case-in- sidered these claims and them to find be chief that a pleaded codefendant However, without merit. we caution to the same or similar offense with which government on counsel retrial to avoid the charged.” defendant is United States making statements that could be Hutchings, (8th construed 751 F.2d Cir. injection 1984) (McMillian, as an into trial J., the of specially concurring). credibility counsel’s or statements of Finally, although I note conspir- faithfully evidence that are not accurate. acy count, to restrain trade for which con- While do discourage spirited we not wish to viction the imposed district court had a advocacy, prosecutorial a misconduct is ser $800,000, substantial fine in the of amount matter, ious and this Court will not allow has been reversed and remanded for new go actual instances of such misconduct trial, today appel- the court has affirmed unremedied. lant’s conviction for three counts mail fraud in highway connection with the state VII. bid-rigging construction scheme. The dis- respect With conviction on $1,000 imposed trict court a fine of on each One, Count judgment of the District of the mail counts. fraud This is the maxi- Court is reversed and this case is remanded mum fine that the district court could have to the District Court for new trial. With imposed for the of mail offense fraud. See respect to Hogan’s convictions on Counts may U.S.C. 1341. Mail fraud also be § through Four, Two the judgment of the punished by imprisonment for not more District Court is affirmed. years. is, course, than five It impossible itself; imprison corporation it would
McMILLIAN, Judge, Circuit concurring. not, however, impossible imprison, I following investigation, indictment, trial, concur the decision to reverse appellant’s conviction, remand for trial corporate new conviction and those officers or conspiracy unlawfully to restrain trade in violation employees who acted on behalf (count 1) by Sherman Act submitting corporation. We have often ob- rigged bids for certain state highway corporation con- served that cannot take ac- duct, indictment, persons. charged as has a through but must act itself tion impact goods moving in inter- view, reexamine direct it is time to my punishment corporate state commerce—which means across prosecution goods lines—or on are in the upon to focus state crime entity goods but also when the corporate flow commerce—as wrongdoing awaiting origin in the state of inter- of its human actors. are upon that shipment or the state of destina- state BRIGHT, Judge, dissent- Senior Circuit way to consumer. tion on the the final ing. instructions, giving the After above trial, found lengthy corporation After a challenged here. gave court the instruction *12 punish- rigging escapes just of bid question merely part in The instruction erred trial court grounds that the ment “unreason- of the court’s definition of an A I must dissent. instructing jury. restraint: able” a whole dis- reading the instructions as means To restrain interstate commerce all, experienced error at for the closes no the ordi- unreasonably to interfere with explained the judge fully trial able pric- nary, freely competitive usual and necessary to commerce element interstate open system or distribution convict. com- market interstate trde [sic] indi-
1) indictment merce. The recitations of the cated the restraining interstate commerce. ment: court spiracy element beyond within the flow interstate establish unreasonable charged in the indictment. Three elements with or about affected 2) state trade 3) Finally, In Count 1980 Third, The court instructed, having in a combination and must affect of the offense necessity interstate that the May, One the defendants Sfc reasonable doubt the offense of explicitly engaged, restraint of certain court 1979 with are commerce [*] conspiracy commerce interstate commerce: required regard to the indict- gave stated from sometime charged, the con- sN proof about * conspiracy * * * are * that, in order or occurred # September, of conduct commerce. conspiracy jury *. The trial charged proved as one either whole, inter- a de- Sfc v. whether a trial (Emphasis price to consider We by a tutes rigging. terstate state as ness activities garded as unreasonable other or their Park, The Certain unreasonable [*] mere must consider the instructions 1912-13, showing fixing, division markets and bid an unreasonable restraint on commerce, not explanatory commerce. added). effect on the types of conduct are sfc doing of why the U.S. court isolation, that the defendant’s busi- substantially affected in- per [*] and it is not erred. United States matter. L.Ed.2d the act acts were se. This means that burden [*] 674-75, industry, se includes per itself consti- determining Conduct re- [*] is satisfied committed, necessary regarded or (1975); inter- [*] as a definition of “interstate commerce”: 141, 146-47, tailed Cupp Naughten, 400-01, (1973); un- applicable The Sherman Act is not Works, Na there is a Aimor Electric Ltd. Omaha less it is first established that (8th Bank, Cir. inter- attempted or restraint of F.2d restraint tional 1984). Here, reading as a the instructions you can find state commerce. Before The propriety. guilty, you beyond must find a whole demonstrates defendant Sherman explained court first that the doubt there was such trial reasonable restraint or attempted may apply without a or You Act did actual restraint. commerce. illegal attempt con- to restrain interstate allegedly find when the so explained then court restraint unreasonable, had to be and that certain
types per of restraints were unreasonable instructions,
se. Under these
to find that the defendant’s business was in
interstate before commerce it considered
the per se instruction. error, I
Because do not find much less
prejudicial instructions, error in the I would
affirm. America, Appellee,
UNITED STATES of
v. HELMEL, Appellant.
William John America, Appellee,
UNITED STATES of
v. STOWE, Appellant.
Arthur Charl America, Appellee,
UNITED STATES of
Barry GLICK, Appellant. Michael America, Appellee,
UNITED STATES of George PAULSEN, Appellant.
William 84-2012, 84-2013,
Nos. 84-2137
and 84-2234.
United States of Appeals, Court
Eighth Circuit. May 14,
Submitted 1985. Aug.
Decided
Rehearing Rehearing En Banc Denied
Sept. notes trial, the defense in advance of material, government may constituted Jencks Act did di required not be so.” it to do rect, pursuant Act, White, United to the Jencks F.2d that sev (8th Cir.1984). phrases quo eral sentences and But when ulti- enclosed disclosure is required, mately tation marks be extracted given must made before any Hogan. Certainly is too for the put late material to be the District Court required effective use. We need not address the to order disclosed as Jencks timeliness of the disclosure this ease Act material a few scattered sentences and
Notes
notes have been disclosed to should ence, May the afternoon of 16(a)(1)(A), Rule we hold under had not complained then is not a non-disclosure of these notes The District Court received the material. Hogan’s sub ground for reversal because right to had waived its ruled thereby prejudiced. rights stantial were not by its failure to alert the this material Bledsoe, 674 F.2d United States v. See resting prior matter its case. court to the (8th Cir.), denied, 459 U.S. cert. way it had no The court reasoned that (1982). As S.Ct. government had not com knowing that the concluded, it is not reason already we have in order and that plied with the court’s probable the result of the trial ably case, Hogan voluntarily resting stead had the Moore have different would been requested have some time to receive should notes been disclosed. material in order to make a and review the as to whether it wished to determination III. Tr. at present additional evidence. See Hogan claims there was a substan District Court 410-11. We hold that single conspiracy to consti tial variance between correctly found actions indictment, voluntarily charged in the as tute a waiver. 7,May acknowledged dated that it acted 13. The written order was District Court 12. 8,May "out of an abundance of caution" and court clerk on as it did was filed with the might have it a little far" "stretch[ed] that giving Hogan any portion notes. Tr. at