United States v. Darrel E. Shelton

EAST, District Judge: THE APPEAL (Shelton) Darrel E. Shelton appeals his judgment of suspended conviction and sen- tence upon entered verdict of guilty on one count violating 26 U.S.C. 7206(1) (willfully filing a § false income tax return.1 jurisdiction We note under 28 U.S.C. § and affirm.

ISSUES ON APPEAL urges these issues for review: 1. The evidence was sup- insufficient verdict; port jury’s 2. Various forms of Government miscon- deprived trial; duct him of a fair 3. The District Court erred in refusing requested submit Shelton’s special ver- form; dict 4. The District Court improperly in- jury. structed the * East, it is made Senior United a written declaration William G. fied Honorable Oregon, perjury, penalties and which he Judge the District of District under as to and correct sitting by designation. be true not believe to does every . material matter provides pertinent part: 26 U.S.C. § felony guilty ..” . . of a “shall be “Any person who— “(1) Willfully . makes and subscribes return, . . which contains or is veri- pretrial FACTS memorandum which items it would attempt prove.2 The excessive exhibits charged report- with under were then withdrawn and the District ing year his income for the 1972. At that Court immediately instructed the jury on time, Manager he was the Business for Iron which alleged items of income it would con- Union, Shopmen’s Workers Local 509. The trial, sider. During the course of the Shel- essence of the Government’s case was that receiving ton admitted four of the six items report and failed to Shelton received as but they contended were reportable not as payments property income and cash from income they gifts because were from his Joseph getting Hauser in return for long-time friend Hauser. He denied receiv- prepaid health Union to shift its insurance $5,000 ing payment cash or the clothing. plan Prepaid from Aetna to National (NPHP), compa- Health Plan one of several key witness, Ronald Prohaska, nies run Hauser. the Union’s former Business Agent working Shelton, under and with While the proceed Government elected to testified that the Union’s health insurance specific on the omission of items theory, plan upwas for renegotiation in 1972 expenditure rather than the net worth theo- late 1971 Shelton told him that Hauser ry, spell the indictment did not out the pay would large them a amount if they unreported amount of income and the de- swing could the Union’s health insurance initially fendant was not made aware of the business to Hauser’s company. He further allegedly However, unreported items. testified that he and Shelton successfully District Court pretrial denied Shelton’s mo- accomplished the shift to NPHP May or tion for a particulars bill of after June of 1972. Prohaska also testified that Government stated that the amount of un- he, Shelton and Hauser present at a reported charged income approximate- Big’s Mr. clothing store when paid Hauser $8,000. ly The District Court further or- for several hundred dollars worth of cloth- dered that the Government pre- would be ing for the two of them. He also stated proving cluded from amounts in excess of that he and $5,000 Shelton each received a $8,000. Nevertheless, opening in its payment cash June, from Hauser in 1972.3 statement, the Government mentioned and tendered exhibits for items exceeding the Prohaska also testified that in May, $8,000 objection, limit. On after the began its investiga- repeated its intention to offer evidence activities, tion of he, Shelton, their Hauser $8,000 exceeding to items limit. After Sidney Krems attended a meeting in colloquy,the Court reaffirmed the limit and which they discussed which of Hauser’s required the Government to payments choose from its to them could “haunt” them. finally purchase, 2. The Government settled on the follow- authorize the that Shelton was not ing present, items: only recipi- and that Prohaska was the clothing. ent of ceipt while the sales re- Date of name, did not bear Shelton’s it did indi- Item Transfer Amount garments. cate the sizes of the From other Refrigerator 1. $ 1/20/72 872.55 testimony, could have concluded that 2. Hotel bill 2/ 9/72 134.26 clothing some of the would have fit Shelton. Clothing 2/10/72 422.00 actually give Prohaska did not see Hauser Shel- 5,000.00 4. Cash $5,000. ton gave He testified that Hauser 5. Televisionset 3/ 6/72 314.95 him pay his share and stated that he would 6. Hotel bill 11/14/72 476.43 Vegas following day. Shelton in Las Pro- he, Shelton, Hauser, haska testified that Priscil- $7,220.19 TOTAL . . Rowe, la Vegas and others were in Las $5,000 June and that Hauser lost Shelton’s 3. No other witness testified that Shelton was gambling. while Priscilla Rowe testified that present Big’s at Mr. or that he had received the she heard Shelton comment that Hauser was pres- clothes. Shelton and Hauser denied their losing Finally, “his five.” Prohaska testified ence and that Shelton received Vegas, that after their return from Las Herrera, George employee, finally clothes. $5,000 a Hauser said he had received the from he, Hauser, present testified that Hauser. vigorously guez, counsel cross-exam- Defense First, Prohaska. Prohaska admitted

ined Citations omitted. In United States v. Ro given immunity that he had been for the jas, F.2d 938 this Court very being same acts for which Shelton was reversed a decision in which the District tried; second, he receiving admitted more Court, accepting an argument identical to $3,000 than in witness or informant’s fees here, granted made the defendant’s approximately from the motion judgment Government — for a of acquittal follow $2,400 of this amount was related to his ing the guilty return verdict case; third, instant jury. In reversing, this Court reiterated “ he perjured Prohaska admitted that had ‘it is the exclusive function of the grand jury himself before on least jury to determine the credibility of witness two occasions overall es, evidentiary conflicts, resolve and draw investigation encompassed which ” proven reasonable inferences from facts.’ testimony case. Prohaska’s that he bore no 943, quoting Id. Nelson, United v. States animosity toward and made no threats 1237, (9th 419 F.2d 1969). 1241 Cir. against because fired him Shelton Shelton The testimony uncorroborated of an ac- job directly from his union was contradicted complice, although suspect, can support a testimony by impeach- of two defense Hibler, conviction. United States v. 463 ment witnesses. 455, (9th 1972). F.2d 458 Cir. This is “the testimony the core of Prohaska’s Finally, though rule even the accomplice is in a Shelton, Hau- by contradicted directly was position gain favors from the govern- ser, and Herrera. by ment testimony his . . . and even though there are inconsistencies in story his DISCUSSION . long so as it is not ‘incredible or ” 1, Sufficiency of the Evidence. Issue unsubstantial on its Lyda face.’ v. United States, 788, 321 (9th 1963). 794-95 Cir. elements in this only disputed The (Citations omitted). Before an appellate return case were whether Shelton’s may disregard court a witness’ testimony, it e., (i. materially false whether he had “inherently must be implausible.” Rojas, or, so, unreported items if received the rep Accord, 554 F.2d at 943. they gifts were and hence not whether 4 Cravero, 530 F.2d 666 We willfully whether he acted ortable) say cannot that Prohaska’s testimony was e., (i. he failing report them whether inherently implausible. gifts). were reasonably believed the items Accordingly evidence, we believe the Shelton claims that the evidence was in- viewed in light most favorable to the sufficient because “Prohaska was so thor- Government, is sufficient to support oughly impeached that as a matter of law jury’s verdict. should not be considered or in alternative, that even with his testimo- ny the evidence is still insufficient . ..” Alleged Issue Government Misconduct. conviction, Shelton’s next is that the com- appeal

“On from a criminal bined effect of various forms of this court must construe the evidence direct Govern- ment misconduct deprived and circumstantial in a manner him of consistent a fair verdict, jury’s resolving complained with the trial. The conduct all con- of Shel- ton covers prose- categories: First, flicts the evidence in favor of the three he ar- weigh gues cution. . . . We cannot con- illegally paid evidence, flicting nor consider the credibili- Prohaska informant guise fees under the of ty of witnesses.” United v. Rodri- providing States federal statute only for the Property acquired by gift meaning 4. within the Commissioner of Internal Revenue v. Duber is, course, stein, of the Internal Revenue Code 80 S.Ct. 4 L.Ed.2d gross reported. g., (1960). income and need not be E. 1218 1246 (9th Cir.), under conditions witness fees

payment Second, claims he (U.S. not here met. U.S. vio when the Government prejudiced 1977). (Citation omitted). limiting order lated the District Court’s Basurto, 1974) jury and the it submitted proof when (Hufstedler, J., concurring specially). detailing allegedly unre exhibits viewed payments issue Prohaska was exceeding the District Court’s ported items Moreover, fully jury.5 aired to the the Dis- third, con $8,000 And limitation. trict Court cautioned the about care- prejudiced by the that he was tends fully weighing credibility of “an in- respect to some delay with provides against former who evidence a de- to other evidence and failure pay fendant for . . exculpatory over evidence to turn evidence Brady Maryland, required under Informant fees are neither unlawful nor 1194, 10 (1963), L.Ed.2d 215 unduly prejudicial per se. And there is no and to a lesser extent progeny, its here that the payments contention Act, com 3500. These Jencks U.S.C. § type contingent based on the fee ar seriatim. plaints are considered rangement condemned the Fifth Circuit of this case During preparation in Williamson v. United trial, paid Prohaska Annot., See ostensibly as money sums of substantial essence, ALR Fed. 905 pursuant fees to 28 U.S.C. § witness argument boils down to the claim that Pro payment for the of provides This statute haska’s should be stricken be expenses to per day plus travel $20 “[a] the paid cause Government for it out of an court of the attending any witness Unit improper source of funds. While we could States, a ed or before United States com action, neither endorse nor condone such we any person or before [magistrate], missioner feel that to resort to the exercise of the deposition . . .” authorized to take his supervisory power Court’s on these facts here, that the facts argues under Shelton improper power would be an use of the in violation of payments were made these merely prac to foreclose law enforcement disguised informant 1821 and constituted § Hamp we See approve. tices which do not jury about Prohaska’s fees which misled the States, ton v. United 484, 490, 425 96 basis, U.S. invites us credibility. On Shelton 1646, (1976). supervisory power to S.Ct. 48 L.Ed.2d 113 to use this Court’s testimony. strike Prohaska’s complains prej that he was Assuming, arguendo, payments that the udiced because at the outset of the trial the statute, fee it would violated the witness jury Government submitted and the viewed justify remedy sought. The use of allegedly exhibits related to items of unre supervisory power properly is the Court’s ported income in excess aggregate of the situations in which the limited to those $8,000 previously imposed by limitation misconduct, though falling Government’s Although District Court. there is no excuse violation, short of a constitutional “ threatens disregard for the Government’s of the order integrity judicial process’ ‘the of Chanen, v. United States limiting proof, 549 this claim unavailing. is Prohaska, During payments $550 the cross-examination of it of the additional —was —about length fully brought explored. that he had received also It was out at should be noted that n $2,400 initially than from the in ex- while the Government did not inform more Government payments, change cooperation in the Shelton case. defense counsel of the for his additional fully During of another District Court was satisfied with the cross-examination witness, apparent explanation that and found the fail- it became event, money paid been to Prohaska in ure to be inadvertent. before it even more had jury investigation. fully retired the was informed as to the connection with another exchange total amount afforded District allowed Shelton to recall Prohas- Prohaska Court cooperation. for his ka for further cross-examination and the nature

1247 assumption juries that Given the ordinar this information was material within the instructions, meaning of ily Brady, court’s United the delay follow in disclosing it requires Fassler, 161, 163 only if (9th 434 reversal “the lateness States v. F.2d Cir. prejudiced disclosure so appellant’s 1970), denied, 1011, prepara cert. presentation tion or of his defense that he 1263, (1971), error in the prevented receiving from his constitu of can generally admission evidence tionally guaranteed fair trial.” United withdrawing the evidence from “cured Miller, 1125, States v. (9th 529 F.2d 1128 instructing jury’s consideration Cir.), denied, cert. 426 96 U.S. S.Ct. jury disregard it.” Maestas v. United 2634, 49 (1976). L.Ed.2d 379 There can be (10th 1965). 496 Cir. 341 prejudice no claim of insofar as the defend Jiminez-Badilla, States present ant was enabled to 174 Cir. This course favorable or impeaching evidence. United preventing District here taken Court v. Bracy, States 566 F.2d 649 any prejudice to Shelton.6 Accord, United v. Kaplan, next con complains his (3d 1977); 580 viction be reversed should because Decker, 543 Brady Maryland Government violated U.S. S.Ct. delayed turning over 500 of pages L.Ed.2d 390 alleged material until the eve of the Miller, Unlike in the evidence here was trial in that it failed to turn over received on trial, the day before not near 1,900 alleged pages another of mate And, the end of the defense ease. although Brady, rial until trial.7 In after the Su in Miller, unlike no continuance was of- preme held that it is a denial due Court fered, there day was a five delay after the to fail process prosecutor for the to disclose day second Finally, trial. much possession which evidence in is material evidence turned over consisted the grand Agurs, to the defense. In United States v. jury testimony Herrera, of Hauser and both L.Ed.2d of whom Thus, testified for the defense. (1976), Supreme explained Court Shelton has failed to demonstrate how the materiality the standard of varies in these delay in disclosing the 500 “depending on the nature the situations of pages prejudiced of information the prepa- type information withheld and the of re of ration his case.8 quest by pro the for made defendant the The contention with respect to the the duction of material.” Skinner v. Card Government’s failure to alleged disclose well, 564 F.2d Brady material after until trial is divided. Brown, See also United States v. 1,900 The first attack relates to pages about of information turned over to the defense Shelton claims that much of the 500 preparation during prosecution for of a pages of information turned over the companion case in which Hauser and Shel- day impeached defense the before trial Pro- comprised ton two of the three defendants. credibility. Assuming haska’s that all of This material was disclosed in time for the offending only huge 6. We that the exhibits note mass of so-called material briefly jury by before the at the outset of trial simple called the defense in this rather development was no of with- there case. Although drawn evidence Government. subsequent there were two references to one of respect 8. The contention with to material exhibits, they import were of little stricken over turned before the end of the trial includes when viewed the context of the entire trial. consisting some Jencks Act material of the event, any object defense counsel did not transcript of Prohaska’s from one of those references. grand appearances. However, his four during this evidence was disclosed his cross-ex- charges wide- here were an offshoot of a amination, there no violation of the Jencks spread, national, investigation if not federal of Act. crime, corruption alleged explaining thus passing it in on those who to consider attended a meeting District Court purpose trial in case. of which was to cover-up motion for a new Shelton’s Hauser’s payments to on a statement Shelton and The second attack focuses Prohaska. Shel- ton and meeting Hauser denied the Revenue on took given to the Internal Service place but Krems did Krems, testify. by Sidney March Hauser’s accountant, which statement was disclosed During its cross-examination of Prohas- briefing appeal.9 of this ka, the defense made a Brady request for “[ijnterview reports bookkeeper of a named 1,900 pages of infor With Sidney Krems.” Counsel for the Govern- mation, request can only be clas ment stated that he believed Krems had general.10 sified as “The standard of mate been interviewed the Internal Revenue whether the riality in such cases is ‘omitted Service and the District Court ordered dis- evidence creates a reasonable doubt that ” closure report. However, of exist.’ did not otherwise Government was unable to report locate the Brown, 1150, quoting 562 F.2d at until well after the trial. The memoran- Agurs, at interview, dum of the Krems which was rejected District Court 2402. The Shelton’s part made a of the record appeal, for this reviewing motion for new trial after states that Krems was reminded allega- evidence, finding omitted it was tions that he was involved “in attempts to or, not, cumulative to the extent it was up illegal payments cover to other individu- was remote and collateral in the extreme. als,” subject that he was the of a related evidence, agree. Impeachment We investigation IRS Special that which tends to further undermine the Agent wished to ask him questions “[i]n credibility key Government witness connection with my investigation of the tax credibility already whose has been shaken liability of JOSEPH HAUSER and others cross-examination, due to extensive does ..” Insofar as it is relevant to Shel- not create a reasonable doubt that did not ton’s Brady request, the memorandum indi- otherwise exist where evidence is cates: “KREMS insisted that he was inno- cumulative or collateral. United States v. cent wrongdoing. He stated T know Brown, 562 1150-51. See also Unit payoffs no that JOE made anyone,’ Mackey, ed States v. Cand am not aware any payoffs or 1978).11 ” cover-ups.’ Shelton also claims that the Govern We are satisfied that request ment’s failure to disclose a statement made for Krems’ statement “specific” —that by Sidney Krems necessitates a new trial is, by “focus[ing] his request on a particular “ teachings under the Brady. As was witness,” gave the defense prosecutor ‘the earlier, mentioned Prohaska testified on di exactly notice of what the defense de- ” among rect examination that Krems was sired.’ Mackey, 9. The Government’s motion to include the text 434 U.S. 98 S.Ct. (U.S. of this in statement the record before this granted Court was on November 1977 and therefore, may, properly the statement be con- complains 11. Shelton that the Government’s disposing appeal. in sidered of this failure to over turn material was deliberate. First, expressly we note that the District Court Although 10. there was much discussion be- rejected this with tween counsel and the District Court over the 1,900 plus pages Second, of evidence. it is now Brady material, nature of the had Government prosecution’s failing clear that the motive in to guidance little other than that it was to disclose alleged Brady turn over evidence is irrelevant everything impeach which tended to Prohas- determining materiality. Agurs, in its credibility. request general U.S. ka’s Such a is since 2392; Cardwell, give at prosecutor Skinner it “did ‘the notice of exact- ” ly Brown, 1977); what the defense desired.’ United States v. Lasky, at 1149. situations, at 389.12 In such if “a substan- This not a where, is case when faced with specific a materiality Brady request, basis exists claiming tial for response. failed to make any prosecutor] the failure the to [of seldom, ever, any response make is if excus- The Government initially resisted Shel- Agurs, 427 at able.” U.S. 96 S.Ct. at request ton’s for Krems’ statement on the 2399. ground that “Mr. Krems is equally available to the defendant. He is not unknown in Clearly, a basis substantial exists for any sense.” Although this was not disputed claiming that the Krems’ statement was by counsel, Shelton’s defense the District material in a sense. The Govern- Court reasonably production ordered heavily ment relied on Prohaska’s testimony During statement.13 ensuing colloquy, the cover-up meeting prove a about that Government’s counsel indicated that he consciously attempted to conceal thought he only grand had Krems’ payments that he knew were income. testimony and that it would be supplied. Krems’ statement can be construed con- The District Court indicated Krems’ last true, tradicting that It is testimony. how- known address should also be made availa- ever, that Krems’ denials were cumulative ble, and Shelton’s counsel stated that would the given similar denials be satisfactory.. Thus, Hauser. in view of the substantial Notwithstanding colloquy, this par- impeachment of Prohaska from other evi- ties understood that the ef- dence, the addition of Krems’ forts to locate the Krems’ statement were would not have created a reasonable doubt to continue. After Prohaska’s testimony that did not otherwise exist. but before the close of the Government’s marginal figure Krems was a much more case, subject open was raised in court Hauser, either than Shelton or and his testi- again. Counsel for the Government stated mony may given greater have been credibil- that the transcript of one Krems interview ity by jury. Accordingly, nondisclosure had been located and disclosed and that face a specific request would be another apparently existed which he did not Brady’s inconsistent “concern that then have. Upon questioning by the Dis- suppressed might evidence have affected Court, trict the Government further stated Agurs, outcome of trial.” that Krems’ address had supplied been at at 2398. Thus, the defense. question of Krems’ Nevertheless, we that a rejection feel availability to again the defense was raised. required claim is still here. Defense counsel protestation made no conclusion, reaching In we keep mind he did not know Krems’ address or that he the primary expressed concern fact, had been unable to locate him. he Brady line of cases is that accused not stated he had not attempted deprived a Agurs; fair trial. subpoena Krems. days Two later Bracy. reported in open court that the Agurs, Supreme is It true that Court aware that Prohaska claimed the occurrence of specific request cover-up that a “is meeting involving said characterized a Krems pretrial request specific (Prohaska’s) evidence.” direct examination. On these (Emphasis facts, 96 S.Ct. at 2398. add- request properly we feel Shelton’s is Here, ed.) Brady requests Shelton’s for materi- specific though characterized as it was specifically did al not focus on Krems until not made before the trial. during the trial. Krems’ statement singled prosecution was out before the com- all, hardly After Government could be chief, pleted its case in and the Government by disclosing hurt that which the defense could argue not does that it could have uncovered the easily Further, obtain. made Krems’ statement before the conclusion necessary no that the effort to make only singled had it been trial Finally, out before trial. unduly disclosure was burdensome in view of reasonably Shelton could not have independent the defendant’s to access the infor- expected single pre- been to out Krems in his mation. requests since trial the defense first became Brady’s ‘sporting theory justice.’ statement had been We for the Krems’ search opinion very are of the that at the least that the search was so far and fruitless discovered, newly the evidence must be Although defense counsel was continuing. appears and in this to us that gave no indication that he he still present, diligence failure to exercise can be so locating difficulty Krems on had had obviously bordering gamesmanship on The he had tried to do so. or that own place constructively to the evidence eventually was IRS statement Krems category non-newly discovered.” the conclusion of the subse- up after turned trials a and Hauser quent Shelton Reversal on the facts of this case would immediately other files. It was search of permitting amount to the gamesmanship the defense and this available to made First, just condemned. knew ex- discovery The circumstances of its Court. actly what hoped benefit he to secure from in an affidavit submitted detailed and, therefore, Krems’ had an augment the Government’s motion Second, incentive to seek him out. the rec- appeal with Krems’ state- record on this supports ord the conclusion that Krems was have reviewed the affidavit ment. We available to the It is disputed defense. that still satisfied are that Krems was Hauser’s accountant or effort to locate the state- good a faith made bookkeeper and Hauser knew where to con- earlier. ment cooperated fully tact him. Hauser with and length testified at for defense —this in- held that the due dili It has also been cover-up cluded his denial of the meeting. part on the of a defendant gence standard colloquy open in court between counsel a motion for a new trial in connection with over whereabouts of the Krems’ state- dispensed with when the new should already ment has been detailed above. Suf- raises constitutional issues. Mar evidence say, giyen fice it to the nature of that U.S.App.D.C. shall v. United colloquy, obligation there was an on the position This draws 436 F.2d 155 part speak up difficulty the defense if Brady support in the context from some being locating was encountered in Krems. Agurs. in There Supreme Court’s decision Nothing forthcoming. Under these cir- that even where the accused the Court held cumstances, it is unreasonable to ask us to material, request Brady he made no believe defense not have could. required to meet a test as would not be contacted Krems. normally applied in deter stringent as that mining motions for new trials. U.S. We hold that the combination of the na- 110-11, in 2400-2401. We feel that response ture of to Shel- diligence defense Brady specific Brady request situation some ton’s for the Krems’ Basically, we find ourselves required.14 statement diligence and the lack of on the agreement following part with the comment of the defense in attempting to obtain comments in United independently Circuit’s Krems’ evidence establish Seventh Hedgeman, deprive that this nondisclosure did not Shel- 1977): ton of a fair trial. necessarily disagree “While we do not 3, Special Issue Verdict. D. Circuit’s statement with the C. [in principle, we do general rejected as a The District Court Marshall] that it should be application request special not think in that a verdict be submitted the extreme that we find our- jury calling upon carried to them to decide items, exemplifying in a case which of the if any, selves as arbiters six constituted request. in other contexts absence of a And in United 14. This has indicated States v. Circuit Brown, diligence required general request we stated is still that some Hocker, require was not sufficient to disclosure when In Wallace v. 441 F.2d 219 situations. (9th prosecution “negligently it was held that the the defense failed to discover and required produce exculpatory possession.” evi- utilize information in their own was not defendant knew in the 562 F.2d at 1151. dence about which the

1251 4, argues the Issue special Jury to He income Shelton. Instructions. required ground on the that

verdict respect Shelton makes two claims with to argu- it prevented he was was from without jury First, instructions. he argues that verdict, following guilty a either to the ing the Court incorrectly set out the definition Court, Second, Court or this that he was gift. District of Shelton contends that the instruction on willfulness was solely to an item erroneous convicted that it was incomplete. Neither contention a as matter of which was insubstantial has merit. disagree. law.15 We The trial court instructed the jury that long special It been established has gross that income does not include the value are disfa jury in criminal trials verdicts property acquired by gift and that vored, O’Looney, F.2d v. 544 United States whether an gift depends item is a on the 385, (9th Cir.), denied, 392 cert. 429 U.S. transferor’s intent. This was a correct 642, (1976); 1023, 50 L.Ed.2d 625 2 97 S.Ct. statement of the law. Commissioner of In Miller, & Practice & Proce Wright Federal Duberstein, ternal Revenue v. 278, 363 U.S. dure, (1969). 512 And while this Court § 1190, 80 4 (1960). S.Ct. L.Ed.2d 1218 Shel may that the District Court submit has held argument ton’s that this allows a person to cases, special appropriate verdict a of a convicted criminal offense based 391-92, O’Looney, 544 F.2d at Shelton has upon another’s state of unpersua mind is case and we have found none in cited no sive since the element of pre willfulness grant it was held that the refusal to which solely vents a conviction based on the state fact, special verdict was error. a of mind of one other than the defendant. previously upheld has the refusal to Court The District Court instructed that request for a grant special a defendant’s “the ‘wilfully’ term deliberately means single in another count multi-item verdict with knowledge, distinguished from care States, Bisno v. United 299 F.2d 711 case. less, inadvertent negligent. or That is to denied, 952, (9th 1961), cert. 370 82 Cir. say, the defendant knew and specifically 1602, (1962). 8 L.Ed.2d 818 Cf. United intended the return to S.Ct. be false when he made, Munz, (10th subscribed filed During it.” v. 542 F.2d 1382 Cir. instructions, jury conference on the District denied, 1104, 1976), cert. 429 U.S. 97 S.Ct. recognized Court that if reasonably 1133, (1977); 51 L.Ed.2d 555 United States believed that the gifts, items received were Jackson, 1976). 542 F.2d 403 Cir. he would willfully not have acted failing it not all clear Finally, is report to on them his return. prevented special verdict absence rejected District Court defense counsel’s re making any substantiality from ar- quest to add such a statement to the will gument. The District Court instructed the fulness instruction ground on the that, exception with the of the smaller jury Rather, specific.” was “too it was left to bill, items, standing of the six hotel defense “to make that within alone, be the basis of a conviction if could the instruction of which I ‘wilfulness’ am they going give.” found it to be substantial. 925, argues special 393 U.S.

15. Shelton also verdict L.Ed.2d 261 prejudice allowing Fritz, would have cured the due to See United States v. jury improper to view the exhibits. How The willful omission ever, already gross we have held that there was no g., income is sufficient. E. prejudice Mirelez, such in view the District (5th Cir.), Court’s States v. prompt withdrawing denied, action in exhibits cert. 419 U.S. 95 S.Ct. carefully instructing disregard them. (1974). However, L.Ed.2d 665 correctly concedes that the omission required must be prove is a The Government tax Jernigan, deficiency substantial. See United States v. charge violating to sustain (5th Cir.), denied, Miller, 7206(1). cert. § United States 1976); (1969); Schepps 1211 n.8 v. Unit Siravo States, (5th Cir.), (1st v. United 377 F.2d 469 ed 395 F.2d 749 1252 mer Supreme ap- employee Court of the the Union. Without his

It is true sought here of what testimony, the essence the evidence proved would have been Pomponio, 429 v. in United States support insufficient Shelton’s conviction. (1976). n.4, 97 13 S.Ct. by The voluminous material withheld practice may be while the better Government, especially the records contain- requested, when instructions give such ing by the denials Shelton’s accountant of a of discretion to it was not an abuse we hold coverup meeting, impeached Prohaska and right has no it here. The defendant refuse incriminating testimony. Prohaska’s My language in the instruc- any particular Brothers hold that because these materials if the instructions It is sufficient tions. cumulative, merely were consisting largely the instruction encompass as a whole taken duplicated testimony two witnesses Kaplan, v. 554 F.2d sought. United States defense, for the Shelton was not harmed by are (9th Cir. “Instructions 968 simply the late disclosure. I agree. cannot jury. a substitute for not true, course, It is that our Circuit’s judge fairly instructs the as to If the rule, (See, a rule that I dislike allow principles of law so as to applicable Andrews, 632, 633, v. 455 to States n.1 each side sufficient latitude counsel on key points (9th 1972)), considers to be argue what he Cir. is that the uncorroborated case, judge performed trial has his testimony accomplice, alone, standing of an Campanale, duty.” United States support will a conviction. United States v. This much Sigal, 1978); here. We conclude that the in- was done States, Moody v. United a whole were fair. structions as 1967). Nevertheless, an enhanced accused, impeachment by the armed with judgment of convic- District Court’s entered on suspended and sentence material amassed tion dur February is affirmed. ing investigation, its could have well been pivotal jury weighed as the the evidence AFFIRMED. relating guilt to Shelton’s or innocence. Thus, I submit that it cannot be said that ELY, Judge (dissenting): Circuit error was beyond harmless respectfully quite dissent. The record I Giglio reasonable doubt. v. United repeated requests for clearly reveals that 150, 154, 405 U.S. 31 L.Ed.2d were essen- exculpatory evidence possibly inexcusably disregarded by tially pleasure I take reprimanding no prosecutors to whom the re- government prosecutors or any other attor- Not until quests properly directed. neys, that, I emphasize assuredly, most prosecution suddenly of trial the eve did there is no exculpatory indication here that pages than 500 of material produce more material was intentionally suppressed. that, it, have been delivered as I see should however, apparent, What is all too is a Moreover, long to the defense before. laxity demonstrated and failure unsavory seriously to followed the same prosecution thereafter, prosecutorial undertake duty the trial and to exam- pattern material until there delivering government additional ine requested files for material requests by the defense had been continued may show that a against case an ac- and, also, judge. prodding by trial land, cused is unfounded. In our the at- circumstances, light these tainment of a conviction must never become 83, 83 Brady Maryland, goal prosecution. “(T)he the sole (1963), judgment 10 L.Ed.2d prosecution interest of the is not that reversed. of conviction be should case, bring shall win but that it shall forth the true surrounding facts the com- heavily rested

The Government’s case Prohaska, justice of one a for- mission of the crime so that shall upon thoroughly . I share the ..”1 done Hufstedler, in a

opinion Judge written years ago: dissent two

cogent about in rigorous-

“We should not be hesitant enforcing rule

ly applying though of criminal convic- reversals may thereby result. rule

tions suppression

does result rele- evidence, disclosure, but in

vant its there- shoring integrity of the fact- up

finding process.” Miller,

United States v. convicting judgment would vacate the

I Shelton, permit rightly prepared, again.

defend himself America,

UNITED STATES

Plaintiff-Appellee, QUIJADA, Defendant-Appellant. V.

Abel

No. 78-1514. Appeals, Court of

Ninth Circuit.

Nov. 1978.

Rehearing Rehearing En Banc Jan. 1979.

Denied Willis, Tucson, Ariz.,

Paul T. for defend- ant-appellant. Danneman,

Dale A. (ar- Asst. U. Atty. S. Ariz., gued), Tucson, for plaintiff-appellee. Butler, Introduction to ABA Standards for Criminal cited Justice, 1978) J., Relating (Ely, concurring). Standards Function 1972) Judge, (Approved Trial Draft

Case Details

Case Name: United States v. Darrel E. Shelton

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 27, 1978

Citation: 588 F.2d 1242

Docket Number: 77-1575

Court Abbreviation: 9th Cir.