*1 the first of classic case2 This was Judge, BROWN, Circuit R. JOHN that determining was an issue Court concurring. namely necessarily presented, squarely and precision needed think but I concur ap- redhibition law of Louisiana that in Nilsen opinion banc our en applying Mississippi. the law and not plied emphasis. special warrants actually is or law of fact an issue “When binding, it is only not First, is Nilsen by a valid determined litigated and out, it is points and, Court as the sound the determination judgment, final and second the first whether applicable the determina- judgment, essential same, dif- are one and Courts Federal subsequent action in a conclusive tion is state, inor differ- ferent, in the same both on the same parties, whether between ent states. (Second) Restatement claim.” or different operate not limitations do Statutes (1982). That became Judgments par- to a pertains each abstractly. Rather Mississippi Federal Court binding on the 6-year Thus of action. cause ticular it longer that no determine could contract for Written limitations statute of action Mississippi cause really was per- a suit applicable not be of limitations. 6-year statute awith of limi- 2-year statute injuries with sonal right gets to the result The Court tations. judicata of res doctrine wrong route. The in redhibi- suit was the Louisiana Here should Our rationale precision. rests on period prescriptive 1-year to which a tion precise. equally all, what, and speaking Strictly applies. determined Court Federal the Louisiana redhibitory action plaintiffs only Louisi- that was the since prescribed At that asserted. which was claim
ana Mississippi law were rights under stage, no Federal Court Louisiana
presented. then, determine not, it nor could did action) (cause did claim Mississippi America, UNITED STATES stage, Also at that exist. or could Plaintiff-Appellee, would had Court Mississippi Federal only to effect given judicata res (87-6183), and Moham- ZALMAN Bruce that the Federal Court decision Louisiana (87-6178), mad Sharifinassab was time for redhibition claim Louisiana Defendants-Appellants. Mississippi Hence, Federal barred. Louisi- saying that the correct Court was 87-6178, 87-6183. Nos. that the Loui- decision Federal Court’s ana Appeals, Court prescribed did redhibitory action was siana Circuit. Sixth by the finding res judicata compel a Court. Mississippi Federal 22, 1988. July Argued plain changed all this was But 23, 1989. Feb. Decided persuade try misguided decision tiff’s Denied Rehearing No. 87-6178 Mississip Court Federal the Louisiana April 1989. Louisiana, The Louisi applied. law pi, not Louisiana, not in No. held Banc Rehearing En Federal Court Rehearing ana Ap Court of applied. This Mississippi, law 1989. April Denied decision. Steve peals affirmed Dorsey Trucking, Inc. Trail Thompson (un (5th Cir.1988) Inc.,
ers, opinion).
published (Second) Judgments See, e.g., Restatement 2. 2546. arts. La.C.C. c, illustration comment § 27 *2 (INS) in violation of Service
ralization 1001;1 three counts 2 and U.S.C.A. §§ by ar- defraud conspiring to marriages for various ranging fraudulent remain in the permit them Iranians aliens, States as *3 1001 and U.S.C.A. of 18 §§ in violation one with Sharifinassab 371.2 arrange to conspiring with Zalman of count 18 U.S.C.A. marriage in violation of a sham making of one and count 371 and §§ T. (argued), Scott Wen- Roles to, concealing Alan W. ma- and/or statements false Louisville, Robertson, delsdorf, and Ogden from, application in his facts terial Hopson D. Phillips, Mark status, G. Ky., Carter in violation permanent for D.C., for defen- Washington, (argued), and Sharifi- 1001. Zalman of 18 U.S.C.A. § dants-appellants. jury, tried before jointly nassab were counts. them on convicted all which Louisville, Atty., Whittle, U.S.
Joseph Camp- Gambill, F. William Ky., Cleveland fol- the the trial disclosed record of for U.S. (argued), Zalman, an bell facts. attor- lowing underlying Louisville, the in practiced had ney who and MERRITT, KRUPANSKY Before the taught law at had Kentucky area and BOGGS, Judges. Circuit Louisville, reputation had University of community an individual as Iranian the Judge. KRUPANSKY, Circuit to marriages arrange fictitious would who (Zalman) Mohammad and Zalman Bruce for status Irani- residence gain (Sharifinassab), defendants- temporary of their upon expiration the ans re- from their appealed appellants, for servic- Zalman’s fee student visas. following a convictions spective criminal $1,500, for $1,000 and ranged es between States District the United before jury trial arrange pseudo he would payment which District of Ken- the Western Court female, who eligible an marriage with tucky. and paid $500 between herself would be re- addition, would $1,000. In indicted were and Sharifinassab con- to a course “couple” as the hearse Western grand by a federal re- INS officials to mislead calculated Zal- duct May Kentucky on District marriage; viewing the circumstances charged with two counts man was complete to namely, manner to make individuals abetting several and to mislead so as forms to, conceal materi- and/or false statements respond to to in which INS; the manner from, and Immigration Natu- al facts writing sentations, any false or or makes uses Section 2 states: knowing same contain document or against (a) offense commits an Whoever false, or statement any or fraudulent fictitious counsels, abets, aids, or the commands, $10,000 or than no more entry, fined shall be procures its commis- or induces years, both. five or more than imprisoned not sion, principal. punishable as is 1976). (West § U.S.C.A. 1001 willfully act (b) causes Whoever or directly performed if done as follows: reads 2. Section against the Unit- be an offense another conspire persons either two or more States, If principal. punishable a ed States, against United any 1969). offense (West commit 1001holds Section § 18 U.S.C.A. agency any or to defraud or that: any purpose, any or manner Whoever, jurisdic- thereof any matter within any persons do act such one or more agency the Unit- and any or department tion conspiracy, each object falsifies, effect willfully knowingly and ed $10,000 or im- scheme, more trick, than be fined up by any or shall or covers conceals years, both. or false, than fact, not more five prisoned or makes a material device 1966). (West repre- U.S.C.A. 371 statements fraudulent fictitious inquiries interrogations; INS oral and In Zalman was introduced to Gho- project appearance manner in which to (Mohammadzadeh), lam Mohammadzadeh marriage, i.e., moving a valid the wife’s whose student visa expire.4 was about to clothing personal items arranged into the hus- Zalman for Mohammadzadeh to residence; appearing publicly band’s bogus marriage to- enter into a with Gabrielle gether; designed (Goren) and other acts to further provided “couple” Goren marriage. charade of a valid designed convey instructions appearance of a proper valid marriage. anticipation expiration of his Specifically, “couple” Zalman counseled the August, student visa in Mansour Ka- to familiarize themselves with each other’s (Kazemi) requested zemi assistance families, to honeymoon, have a to move from Zalman to residency extend his personal some Goren’s items into Mo- gaining United States.3 discussed two apartment, hammedzadeh’s and to corre- permanent residency citizenship both *4 spond with each other. In return for these eventually for Kazemi. Zalman arranged a arrangements, paid Mohammadzadeh Zal- marriage delusive between Kazemi and $1,000.00 man and Goren each. (Gebhardt), Deborah Gebhardt one of Zal- divorce clients. man’s Zalman instructed Goren and Mohammadzadeh were mar- couple in all deceptive practices ried within fifteen minutes after their intro- suspicions, calculated to divert INS for a ductions to each “couple” other. The trav- $1,000.00plus fee of payment an additional eled to honeymoon, Florida for a sug- $1,000.00 participating gested to Gebhardt for However, Zalman. Mohammad- marriage. fraudulent zadeh occupied room, his own while Goren occupied and her mother separate room. marriage ceremony July occurred on Subsequently, Mohammadzadeh returned 1980 Tennessee. two Within weeks of college to in Michigan, and Goren and her wedding, requested Gebhardt Zalman mother returned their to home in Ken- to initiate proceedings against divorce Ka- tucky. Mohammedzádeh and Goren never zami so she could marry another individual. together resided they nor did consummate Zalman refused and insisted that she re- marriage. Both Mohammadzadeh and main married to Kazami for at least six Goren testified at trial that the marriage against to insure arousing months the sus- pretext, arranged was a only permit to picions of the nuptials INS that the were a Mohammadzadeh to permanent obtain his fraud. Gebhardt acceded to Zalman’s in- residency status. struction on this and her requested matter divorce was deferred. joint At the Sharifinassab, trial of appellant herein, an had Sharifinassab, Zalman and both Kazemi entered the United States in 1977 on a and Gebhardt testified that the marriage visa, student permitted which him to re- counterfeit, awas only per- entered into to main in the United until he received gain mit Kazemi to permanent degree resident sta- his in engineering scheduled for tus. December 1981.5 Sharifinassab con- charged 3. Zalman was application with one count permanent of con- residency for Kazemi, INS, spiring with to defraud the Mohammadzadeh filed with the INS. arranging marriage a sham between Kazemi 5.Zalmanand Sharifinassab were both indicted Deborah Gebhardt in order for Kazemi to conspiring on one count of with the other to gain permanent residency both eventually INS, by entering defraud the marriage a sham citizenship. permit in order to fraudulently Sharifinassab to gain permanent Additionally, resident status. 4. Zalman was indicted conspir- one count of charged Zalman was aiding with one count of Mohammadzadeh, ing INS, with to defraud the abetting and statements, submitting Sharifinassab in false by arranging marriage a sham between Moham- concealing or in material informa madzadeh and Gabrielle Goren in order to en- tion, application permanent INS in his gain permanent able Mohammadzadeh to resi- status, and Sharifinassab was status; dent and one count and abet- making with one count of false or fraudulent ting making Mohammadzadeh in a false state- statements to the INS in his residen ment, concealing information, cy material application. them until Decem- with of 1981 reside May or June continued to Zalman in tacted the three ber, apartment which in this coun- remain 1982 in seeking assistance sharing.6 Additionally, 1981 student of them had been try beyond his December Bak- testified that most of expiration date. roommates visa belongings remained at the er’s clothes and he advised Sharifinassab Zalman groceries at apartment, Baker stored accomplish options had three that she continued to apartment professional asylum; purpose: political of the rent and pay pro her rata share field; or specialized in a employment status They living expenses. also testified other citizen. Sharifi- marriage to an American Baker’s, other companions that male asylum qualify for either nassab could Sharifinassab, frequently had shared than status, and employment professional her the time during Baker’s bedroom with remaining option a mar- only thus his period here in issue. citizen of the United States. riage to a December, 1981, pre- girlfriend no Since Sharifinassab pared and filed an citizen of the United who was a status, seeking permanent resident based to a suggested an introduction Testimony upon his to Baker. agree marry who would young woman presented that Zalman reviewed the payment exchange application and advised Sharifinassab proposed Sharifinas- $500.00. appropriate responses Baker as for ar- $1,000.00 a fee of pay Zalman sab concerning investigators their given to INS *5 marriage performing for and ranging the granted subsequently marriage. to ac- preliminary services the additional permanent residency status to Sharifinas- residency Shari- status. quiring permanent Thereafter, September August in or sab. and in arrangement, to the agreed finassab granted a Baker filed for was him to a June, introduced Sharifinassab, was separation from (Baker) Kellie Baker woman named young marriage in of the to a amended dissolution at his office. June, represented Baker 1988. Zalman were married and Baker Sharifinassab proceedings. during the dissolution ceremony wedding in a on October indicted and Zalman were Sharifinassab was testi- in Tennessee. There performed grand jury for the Western federal by a had mony at the trial Sharifinassab May Kentucky on District of the in of $500 a check the amount cashed jointly tried before were two defendants wedding. Although Sharifinas- day of the jury convicted July jury. On money this that he used asserted sab on counts all contradictory expenses, wedding various defen- Both charged in the indictment. the trial indicated testimony at judgment appealed from timely dants part of as paid to Baker money had been jury’s pursuant of conviction entered mock mar- enter into the agreement to verdicts. wedding cer- Immediately after the riage. performed, Sharifinassab emony been had has ar appeal, Sharifinassab On for an addi- with a check presented Zalman an indictment was gued that since the $1,000.00. tional that he was assumption in chored illegally, the enactment wedding, Baker moved some After the Act Immigration Keform Control apart- clothing into Sharifinassab’s her 1255a 8 U.S.C.A. November ment, social functions and attended several (West the district Supp.1988), divested However, of Baker’s room- him. both crimi to entertain the jurisdiction massage court of mates, at worked with her who Act against him charges that, nal the wed- at trial after parlor, testified adjust Attorney General October, 1981, mandated the Baker had ceremony in ding testimony grand at criminal testifying Baker’s be- suicide committed after 6. Baker trial grand jury, the criminal but before trial. fore the the use of begun; court barred the district had lawfully admitted makes no mention of a whatsoever concerning to that his status legal government’s authority which, prosecute to a fiction pursuant resident activity attorney, grant veiled Sharifi- aliens for criminal or to am- by his conceived prose- nesty criminal from criminal or civil amnesty from actions of any nassab with Although the kind. The Act fails to cution, accepted.7 incorporate, he either inference, authority upon directly by any fact confer Act does not in reference grant to a retroactively amnesty ad- whatsoever to aliens Attorney General manner, any includ- who have committed crimes while just an alien’s status residence, Act, directly United States. Nor does the temporary Sharifinas- ing inference, by shield aliens from hypothecated that the Act criminal sab nevertheless Furthermore, prosecutions any kind. legalized his resident status retroactively legislativehistory examination of the satisfying requirements.8 its He upon his Congress prem- statute indicates that not in- proceeded from this false had thereafter legal tended the Act serve as a vehicle for argue he had attained ise to that since conferring amnesty Act to aliens who had com- by virtue of the alien status Baker, and if the mitted crimes while the United married Kellie States. time he then, contrary, respects, all To the from an examination of marriage was valid in history event, legislative appar- of the Act it his marriage applicable only after the ent that it was made residence status have, a result of country he proper and individuals who entered the marriage, legal illegally been the valid but who had otherwise abided Conversely, illegal he country during alien in the United States. the laws their fraud, that if his residency. reasons residence status thereafter would then his eq- The Committee believes that illegal that of an alien and have been proposal immigration uitable reform him, amnesty upon the fic- Act conferred large population un- must address attorney, read into the Act tion living working in documented aliens prose- have shielded from which would States, many long period the United for a *6 Consequent- cution under the indictment. Therefore, requires of time. the bill ly, argued, he the indictment should have Attorney grant legal General to status been dismissed. in to those aliens who have been States a substantial number of United language Immigration The of the Re- here, years, developedequities and and Control Act of 1986discloses that form by country. this have abided the laws adjust enacted to the status of an it was immigration purposes, and it individual direct, court, this Act makes no indirect or commenced. Sharifinassab notified
7. 1986 11, 1988, grant any amnesty inferential reference to letter dated November that the prosecution from criminal or civil kind. had since reconsidered its initial decision of merely "Attorney and, reconsideration, 15, Instead it directs that the Gen- May upon 1987 adjust lawfully eral shall the status of an alien application Temporary Resident denied his temporary provided admitted for residence” Act as of Novem- Status under the 1986Reform specific requirements. that the alien meets 8 1, ber (West Supp.1988). U.S.C.A. 1255a For the It is not clear what effect the INS’sdecision of legislative history adoption behind the 1, upon November 1988 had Sharifinassab’s al- 1986, Immigration Reform Control Act legation legal that he was a alien at the time of along eligibility require- with a discussion of accept- his criminal trial as a result of the initial therein, generally H.R.Rep. ments contained see ance of his under the 1986 Reform 71-72, reprinted at in No. 99-682 1986 U.S.Code Sharifinassab has indicated that he would Act. 5649, Cong. & Ad.News 5675-76. appeal the INS’s latest determination. This arguendo court will assume that Sharifinassab 6, 1986, Subsequent May to his indictment on legitimately within the ambit of the Immi- timely application filed a Sharifinassab under gration during INS, Reform and Control Act requesting Act the 1986 Reform with the pendency proceedings of the criminal in the Attorney adjust General his status to that temporary district court below for the of consider- initially of a resident alien. The INS 15, 1987, ing charge grant accepted application May his that the Act constituted a on be- amnesty prosecution. fore his criminal trial in the district court had from criminal
1053
Robinson,
879; Gallo,
unity, or when
However,
grounds
exclusion
appeal,
In the instant
Sharifinassab
est.
law or en-
violations
relating to
court erred in
asserted that
the district
persecution
of others
gaging
refusing
grant a severance
tes
because
be waived.
never
timony against Zalman disclosed two
conspiracy
counts of
and two counts of
71-72, reprinted
H.R.Rep. No. 99-682 at
abetting
testimony,
al
Cong. & Ad.News
in
1986 U.S.Code
him,
preju
though
apply
it did not
added). Accordingly,
(emphasis
5675-76
jury against
of his
dice the
virtue
argument
is with-
appellant’s jurisdictional
“Merely
Zalman.
association with
out merit.
against
inflammatory evidence is admitted
urged
has also
defendant,
directly involving anoth
one
not
denying
his mo
court erred
the district
(and
which the other is
er codefendant
trial
from that of his
to sever his
tion
not,
itself,
charged) does
in and of
not
co-defendant,
A motion for a sev
Zalman.
prove
prejudice in the latter’s
substantial
erance,
Federal
governed by Rule 14 of the
Gallo,
jury
trial.”
or follow the
73 S.Ct.
assign- 485-86,
issue,
consequently, this
97 L.Ed.
(1953).
593
this
The defen-
not well taken.
dant’s contention
ment of error is
that the indictment for
falsely or fraudulently concealing the actu-
additionally alleged
has
Sharifinassab
purpose
al
of the marriage failed to state
denying his
erred in
that the district court
an actionable offense is incorrect. Accord-
acquittal because
judgment
motion for
ingly,
judgment
against Sharifinassab
state a criminal
the indictment failed to
is affirmed.
charged
indictment
offense. The
Zalman to
conspired
with
Zalman was convictedon two counts
marriage
purpose
conceal the actual
aiding
and abetting
submitting
aliens in
from the INS in Sharifinassab’s
concealing
false information to or
material
permanent
residency. Sharifinassab
for
information from
applications
the INS on
argued
marriage
presumed
that since
permanent
status,
in violation
face,
purpose for the
to be valid on its
1001,
18
2
of U.S.C.A.
and of three
§§
marriage
punisha-
is not a “material fact”
conspiring
counts of
to defraud
aliens
under criminal statutes.
ble
by submitting
false
information
concealing
or
material information from
The courts which
examined
applications
on
resi
concluded,
this issue have
with virtual una
citizenship,
dence or
in violation of 18 U.S.
nimity,
underlying purpose
that the
of a
C.A.
371 and 1001. Section 1001 is
§§
marriage is a material fact which bears
phrased
disjunctive
and its violation
upon
validity
marriage,
and that
by proof
is satisfied
that the accused either
misrepresentation
false
fraudulent
made
false
fraudulent statement or
regarding
marriage
the actual
aof
concealed
depart
a material fact from a
gain
in order to
status as a resident of the
See,
agency
ment or
of the United States.
punished
United States can be
under 18
Tobon-Builes,
e.g., United States v.
706
theory underlying
1001. “The
U.S.C.A. §
1092,
(11th Cir.1983);
F.2d
1096-97
United
charge is
the concealment
that the inten
671,
(10th
Irwin,
v.
654 F.2d
States
parties
tion of the
to limit
Cir.1981),
denied,
1016,
rt.
455
102
U.S.
ce
relationship
their
is a material fact under
1709,
(1982).
gen
S.Ct.
1055 decisis, by judicial stare imposed has been questions to the Immigration Form question of is not a fact your proof thereof you “do married?” and you “are [and is, See, jury. It e.g., by a together?” Unit to be decided spouse] reside 646, (6th Bartle, question properly 647 con contrary, 835 F.2d law v. ed States — U.S. -, denied, See, 108 Cir.1987), by and determined the court. cert. sidered (1988); 1245, 443 see also Tobon-Builes, L.Ed.2d S.Ct. 99 e.g., v. 706 United States 1072, Al-Kurna, 808 F.2d Cir.1983); Irwin, v. 1092, (11th United States F.2d 654 1097 1023, denied, Cir.), (5th 481 U.S. 1073 cert. 678; Kungys F.2d at v. United cf. (1987). 1909, Zal- L.Ed.2d 515 107 S.Ct. 95 759, —, 485 U.S. 108 S.Ct. 99 propriety jury has conceded man (1988)(analogous issue of ma L.Ed.2d 839 his conviction permitted instruction that teriality question is of law to be decided govern upon to section 1001 pursuant court); Chandler, 752 United States abetted, he had aided and proof ment’s that Cir.1985) (6th (Analogous F.2d 1150 falsely conspiracy with an alien and/or “[mjateriality issue of under 1001 is a § questions. Ac responding to these two question law.”); Adadi, United States v. raised Zal- cordingly, is no issue there (6th Cir.) (“[T]he 180 materi court’s instruc concerning man the district ality issue in prosecution a section 1001 charge. jury tion to the on that law.”), should question be treated as a denied, cert. 78 However, charged as 464 U.S. Zalman has 104 S.Ct. (1983). Consequently, L.Ed.2d there to instruct the 95 error the trial court’s failure imposed upon the trial requirement to no jury government’s burden as to the as jury had to the issue of prove that he and/or his Iranian clients court to instruct purposes of their the concealment of duty duty to disclose the as an element of per marriages attaining they related to fense. status, he was
manent resident and that alternative, as Zalman has “concealing materi improperly convicted duty if serted that even the issue concerning marriage,” a sham be facts al court, one of law to be decided independent duty to dis no he had cause government alleged proved nor neither cor Zalman was information. close that any legal duty or his clients had asserting support in order to rect served as the disclose information that of material information” “concealment In the case at basis for his convictions. agency department government from a bar, however, of material the “concealment government was under section into incorporated information” offense that Zalman or his clients required prove efforts, any, if Zalman’s related to § particular infor duty to disclose the abetting, that had constituted from the which was concealed mation with, clients conspiracy and/or his Iranian See, government. e.g., United States concealing material information from (8th Cir.1986) Larson, 796 F.2d concerning of the an the truthfulness (“[W]e cannot be hold that [the defendant] by the submitted swers which had been concealing material facts unless guilty of critical controversial Iranians to the two facts.”); duty to disclose the there was a perma on the appeared questions Ospina, 798 v. Hernando 1-485, residency Form nent (11th Cir.1986)(“It F.2d is clear you you married?” and “do namely “are support in order to a section 1001 together?” Thus spouse] reside your [and conviction there must be a le concealment proof support govern the burden gal duty to disclose facts the defendant of “concealment” charged offense ment’s concealing.”); was convicted see also duty including element of the to dis Anzalone, 766 F.2d United States v. was iden close the Cir.1985); Irwin, (1st States v. already government’s satisfied tical to the suggestion F.2d 678. Zalman’s at “felony of false infor prove charge burden failing court erred in the district Accordingly, however, charge element, mation” as to this *9 imposed proof duty, judicially since the misplaced duty, because the issue of 1056 Morris, charge, See Allen v. to the concealment ulation. 610, relates it 845 F.2d as (6th Cir.1988) case identical 616 at bar (“[D]efendant’s] trial concededly supported that pursued counsel a strategy evidence deliberate trial information, Estelle, filing failed.”) Zalman’s
charge
false
Trussel v.
(quoting
256,
failed to
suggestion
government
(5th Cir.),
cert.
that
699 F.2d
262 n. 4
denied,
853,
168,
conclu-
support
introduce
to
a
78
evidence
464 U.S.
104 S.Ct.
—
denied,
cert.
duty
(1983)),
to advise
sion
there was a
U.S.
L.Ed.2d 153
(1989);
purposes
-,
799,
of the mar-
the fictitious
L.Ed.2d 790
109 S.Ct.
102
Illinois,
riages
question
400,
under the “concealment
Taylor v.
484
see also
U.S.
charge is without
of material information”
-,
L.Ed.2d 798
108
98
S.Ct.
merit.10
(1988) (“The
accept
must
the conse
client
lawyer’s [strategic]
quences deci
additionally urged
Zalman has
matters.);
relating
evidentiary
to
sion^]”
permitting
testi
the district court erred
Ramos,
461,
States v.
861 F.2d
United
cf.
various
interrogated
mony that he had
(6th Cir.1988).
468-69
to en
willingness
concerning their
women
Moreover,
an alien
ter into a sham
court had admitted
district
admitted
issue,
to be
monetary
merely
consideration
to dem
testimony
at
conclud
during
court
intent,
prove
his trial. The district
to
but also
onstrate Zalman’s
excep
ed
testimony
was within
plan
or scheme
the existence of a common
404(b),11
tion to
of Evidence
Federal Rule
See United
relating to the offenses.
urged
testimony.
and allowed the
Vincent,
462,
(6th
465
States v.
681 F.2d
that,
stipulate
he had
to
offered
Cir.1982) (relevant
“the
to demonstrate
his intent
to commit the al
the issue of
crime”)
history
common scheme
offenses,
leged
testimony
did not relate
McDaniel,
574
v.
(quoting
United States
in issue
inadmis
to a matter
and was thus
denied,
Cir.1978),
cert.
1224, 1227 (5th
F.2d
Ismail,
See, e.g.,
v.
United States
sible.
2181,
952,
441
record and the briefs asked for a defini- never
cates disclose, objected never duty tion of ground instruction and never on this did not raise such that the situation
claimed therefore, He, has waived his ob- duty. ground by his failure
jection on this it.
raise here, as plain error
Neither do we have contends, the failure because not precise more “does
District Court to be rights substantial
affect [and therefore] 52(a), disregarded.” Rule Fed.R.
shall be overwhelming, proof
Crim.P. Every law-
Judge Krupansky makes clear. participate he
yer knows that a crime. commission of his client context, misleading is a matter
What duty to disclose the existence of a lawyer from the situation. Here
arises negli- or act the true facts
did not overlook press
gently of business. deliberately that he chose to proof on the documents is
conceal the real facts lawyer had Only
clear. if we hold that the submitting duty
no to be truthful justify setting
documents could we aside turn the
the convictions. To so hold would
“plain error” doctrine on its head. America,
UNITED STATES
Plaintiff-Appellee, (88-
Anthony DiCARLANTONIO
3151/3248), Prayso and John
(88-3152/3249), Defendants-Appellants. 88-3151, 88-3152,
Nos.
and 88-3249. Appeals,
United States Court of
Sixth Circuit.
Argued Jan. 1989. March
Decided
Rehearing Rehearing En Banc
Denied June