United States v. Ollie H. Miller

Before HUFSTEDLER, CHOY and WALLACE, Circuit Judges.

CHOY, Circuit Judge: Miller appeals from a conviction nine counts for preparing false income tax returns for his clients and for aiding as it revealing testimony, Waddell s documents of false presentation did not operandi, modus about Mills’ Service, viola- Revenue Internal any in the Mills implicate affirm. 7206(2). We § 26 U.S.C. tion were the which returns five false fact, indictment. Miller’s subject of Facts at trial produced no evidence accountant, was an appellant, In 1973 than rather Mills to show that tended in- preparing of business the engaged in prepara- the for responsible was Miller generally Miller returns. tax come sup- and their returns five of the tion and each client alone meet would documents. porting from the information receive ask for or might be the which expenses on client Evidence Exculpatory of Suppression course due for deductions. basis on conviction challenges his Appellant and in- figures certain dictate ler merits dis- only one grounds, but several written to secretary be his to formation Miller, the According to cussion. tax return. the client’s typed or rule the of ran afoul Government client by the to given The information the close just until before suppressing by by prepared the and information Miller three Mills fact that case the of Miller’s however, return, use Miller for to Govern- admitted had earlier weeks At the the same. always were had and not Miller that he agents ment clients former appellant’s of of five each anoth- and Waddell return the prepared by prepared tax return the that testified “Lopez the (hereinafter return er false that were deductions contained Miller nor thé the Waddell return”). Neither had the client time that at and false however, basis the return, formed Lopez information. deduction false furnished indictment in the any counts that, stated also these clients Each on trial. was Miller which letter, audit he receiving IRS an after “suppres rule well is a settled It doc- had certain then who went Miller fa evidence prosecution of by the documents, sion These prepared. uments vio request upon an accused vorable to from vari- letters to be purported which the evidence where due process lates undisputedly but which companies, ous punish guilt or either to material ment, irrespective finance to certain false, referred were or good faith of the contributions, or charitable expenses, Brady v. prosecution.” the faith of bad into entered transactions financial other 83, 87, 83 S.Ct. Maryland, the client. by (1963); strategy primary defense Appellant’s Valdivia, circum- by demonstrate trial was 940, 94 denied, 1973), cert. em- part-time a evidence stantial (1974). 40 L.Ed.2d Miller, respon- was Mills, and ployee, during the and times before Several false five of the preparation for the sible all Bra- requested specifically Miller trial documents supporting returns of the possession in the material dy Mills based. was indictment which only and the agents, or its Government preparation for the responsible was here is raised Brady question significant typed returns cent per about suppressed evidence whether At trial secretaries. of Miller’s one by materia] guilt. Miller’s by a de- discredited character Mills’ materiality determine Waddell, To who witness, Mae Willie fense necessary case, it is this evidence income her prepared that Mills testified surrounding its circumstances review deduc- false contained return tax originally had Miller trial. disclosure sup- then Mills and that information tion prior counts, just but on 23 indicted been up to back documentary proof false plied date, trial original to June the IRS when deductions claimed Lopez— witnesses—Waddell two challenged them. disposal, an elemental Government’s a sworn affidavit repudiated prior each play of fair demands disclosure sense prepared that Miller had false income way any may be excul- evidence that false supporting tax return and docu- Government, upon re- If the Miller, patory.2 absolving While each im- ments. accused, by has serious doubts quest plicated Mills of the evidence to about the usefulness both false materials. Because Waddell defense, re- should Government Lopez told the Assistant full in favor of disclo- all doubts Attorney they already solve appears particularly Such rule to Miller’s sure. given their new statement cause since disclosure could appropriate never bothered Government sup- while no harm Government relay the new information to Miller. very prejudice well could pression No claim is made Miller that this suppressed by evidence was the Govern- defendant. ment; and, fact, Miller’s counsel knew The Government’s misconduct Lopez about the new and Waddell testi- failing iri to promptly disclose exculpato mony even before the Government ry evidence, however, does not automati learned of it. cally warrant reversal of a defendant’s Lopez’s With Waddell’s and new testi- conviction. United States v. Diaz-Rodri mony hand, the Government dismissed quez, 1005, 478 (9th F.2d 1008 Cir.), cert. all the original counts of indictment dismissed, 964, 93 S.Ct. 37 allegations which had been based on con- (1973). 1013 For two separate tained in the prior witnesses’ affidavits. reasons, Brady does require not reversal The Government then confronted Mills First, in this case. unlike Brady, there statement, Lopez’s Waddell’s complete suppression of the ex he that Lopez admitted Waddell and culpatory evidence. Appellant learned telling were the truth. of the Mills trial, statement albeit not at The Government did not inform until towards the close of his defense. ler’s counsel Mills confession until Thus, our inquiry on appeal is not presentation towards close of the evidence, whether had it been dis Miller’s trial. At defense that time closed, might reasonably have affected gave the court Miller’s counsel oppor- an jury’s judgment on some material tunity only client, confer with his Rather, point. it is whether the lateness but also with Mills and informed counsel of the prejudiced disclosure so appel grant that he would a continuance if preparation lant’s presentation or of his necessary.

counsel deemed it After con- defense that he prevented from re client, ferring with his Miller’s counsel ceiving his constitutionally guaranteed place elected not to Mills on the stand fair trial. United Hibler, States v. 463 and did not move for a continuance. F.2d (9th 1972). Cir. The trial We agree judge with the trial court offered Miller a continuance and part bring Mills’ statement was in excul Mills in for an interview patory material and should have been Miller’s but Miller deemed both turned over to the defense. The fact not necessary. Since Mills was known appellant Government in good concluded at all times and appellant faith that the evidence would not be was aware three weeks before trial of very helpful to Miller does not excuse its Waddell’s and Lopez’s statement impli failure to disclose cating Mills, the statement. we do not see how the late prosecutor merely is not prejudiced an advocate for disclosure Miller. This is not party; he is also an a case evidence, administrator where the if promptly justice.1 disclosed, Considering the vast investiga would opened have the door tory powers resources for the defense to new witnesses or doc Standards, Standards, Discovery 1. ABA The Prosecution Func- See See ABA and Proce- 1.1(b), (c) (1971). 2.1(c) (1970). § tion dure Before § Trial

H29 Castro, F.2d time to be marshalled requiring uments (9th 1973), failing Cir. and did not err in United States v. See presented. and Baxter, jury they to instruct the were not 1973), required accept uncontradicted denied, 416 94 S.Ct. U.S. cert. testimony of witnesses. (1974). 40 L.Ed.2d 292 Viewing the Second, light evidence have the evidence would not Government, most favorable Glas state Miller. Mills’ been favorable States, 60, 80, ser v. of little or would have been ment itself (1942), L.Ed. 680 we find jury al trial because no value at against the evidence Miller to be sub undisputed from Waddell’s ready knew stantial, overwhelming. if not Affirmed. not Miller had testimony that Mills and The state false return. prepared her HUFSTEDLER, Judge (dis- Circuit evidence. merely cumulative ment was Further, senting): given by full statement required Reversal is in this be- Government, presented at if Mills to the cause the nondisclosure of Mills’ confes- more have harmed Miller error, sion was and it was not helped him. In addition to admitting than beyond harmless a reasonable doubt. Lopez for the Waddell and responsibility Although reasoning the majority returns, implicated Mil Mills’ statement crystalline, interpret I the opinion re of other false ler in the deciding occurred, a Brady as that error (Mills) any he that turns and denied error prejudicial. but that the was not I with to the thing do reasoning cannot reconcile the with Bra- which constituted tax returns five dy authority itself nor that con- against of the Government’s heart requires stitutional error reversal recognized the unless judge trial Miller. The the error a statements,3 beyond was harmless reason- of Mills’ value dubious able doubt. to call Mills stand Miller’s failure that he use the statement indicates Mills’ inquiry threshold is whether two-edged it a sword. viewed as also guilt confession was “material either to suppressed we that the Accordingly, find v. punishment.” (Brady Maryland or to not have been of materi evidence would 83, 1194, (1963) 373 83 10 U.S. S.Ct. to at trial. See United al aid Miller 215.) Evidence is “material” in 205-06; Valdivia, at supra, States v. it Brady may sense if have been Baxter, supra, at v. 174- United States guilt phase useful to Miller on the of his timely trial had it been disclosed. The materiality ma- plausible standard of is Other Claims of Error (The teriality, palpable materiality. not Miller’s other claims of error are tend excul- Brady phrase “would to argu without ment, to Contrary merit. his 88, 1194.) pate.” 373 U.S. at 83 S.Ct. to open Miller is not entitled an goes only that Suppression of evidence government inspection of files. Bax credibility of a witness is material ter, supra, at 173. meaning Brady when the within properly credibility might The district court in of a witness affect the v. jury (Giglio it could a structed convict outcome of case. United 763, (1972) 405 92 the defendant on the uncorroborated tes States U.S. S.Ct. 104; believed, timony accomplice, of an if v. Hibler 31 L.Ed.2d ****** Miller’s coun- court told district trial the 3. At Well, procedures you again, sel: the trial desire yours. you I see Brady to follow are don’t how right. material I consider this All Mills, really you could use but I will leave that you. given to Do It has been material. you you. usable, up brought If want him be- any—I if it don’t know desire interview, in, bring I an will him but I want your inculpate I will client. it does cause him in now. you you desire. give if a continuance R.T. 394. 393 R.T. 1972) 455; Cir. 463 F.2d see Napue (1967) 133 U.S.App.D.C. 6, 408 F.2d (1959) Illinois 269-70, U.S. 1212.) The failure of prosecutor 1217.) S.Ct. 3 L.Ed.2d reveal the Mills’ confession was akin to negligence. Negligent Mills’ confession nondisclosure is a “plausibly mate- of Brady. (See violation Giglio rial” v. Unit because tended support it States, ed supra, 405 150, 154, ler’s U.S. central defense theory Mills, 104; 31 L.Ed.2d Miller, Brady v. prepared the false tax returns Maryland, supra, 373 specified 83 S.Ct. the indictment. The evi- 1194; Levin v. Katzenbach (1966) dence did not become immaterial because U.S.App.D.C. 158, 287, 290; 363 F.2d defense did not see counsel use it after the also, g., e. United prosecution (2d tardily Rosner disclosed it. evi- 1975) 269, 272; F.2d dence was not revealed until the Govern- Gerard, States v. supra, ment’s case-in-chief F.2d at closed and the 1302). “[N]egligent defense case was almost nondisclosure is over. Defense less damaging than that counsel could which is prod then a turn back the uct guile.” (Levin clock, plan Katzenbach, and execute su his cross-exami- pra, 363 F.2d at 290.) nation Nonetheless, ap Government’s witnesses plication of the lay automatic path for the reversal rule defense with involving cases negligent Brady Mills’ confession in hand. viola A continuance tions would probably juncture be too (See severe. provided have United States v. Keogh, him supra, with little more than an opportunity at 147-48.) to reflect upon the use he could have made of the evidence if he had known A violation involves a depriva- about it in time. tion of due process. Thus, except The next question is those cases special where whether the Bra- circumstances dy requires error necessitate Special application reversal. rules automatic govern rules, reversals for reversal we apply should Government’s usual failure to disclose evidence constitutional error rule that favorable violation requires defendant. If prosecutor reversal unless the inten- error was tionally beyond withholds Brady harmless a reasonable material to doubt. gain an advantage (Chapman over v. (1967) California accused, the 386 the U.S. 18, nondisclosure 824, is in 87 faith, bad S.Ct. 17 705.) L.Ed.2d The auto- matic reversal burden rests the (E. upon follows.1 g., Government to es- United (2d States v. tablish that Keogh the error 1968) Cir. 391 was un- F.2d harmless 138, 146-47; Chapman, der see United and the v. Government States has Gerard (9th not 1974) Cir. carried that 1300, 491 burden. F.2d Although the 1302-1303). The prosecutor in evidence was this sufficient case to the deliberately sustain withheld the appeal, conviction on Mills’ Brady error, confession absent until the trial over, was the evidence guilt by almost of nothing but the means in suggests overwhelming. record that he acted in bad Rather, faith. he mistakenly arrogated We should not be hesitant in rigorous to himself a determination about ly applying Brady and enforcing that utility of the confession to the defense. rule even though reversals of criminal Defense not the prosecutor, has may convictions thereby result. the responsibility to decide whether plau- Brady rule not does result in sup sibly material evidence will be useful. pression evidence, of relevant but in its (See Brady Maryland, v. supra, 373 U.S. disclosure, thereby shoring up the integ 88, 1194; at 83 S.Ct. Levin v. Clark rity of the fact-finding process. Signifi Supreme 1. The Court has indicated (prosecution that a F.2d 933 negligent liable for mis- prosecutor responsible is for all information prosecution identification of chief witness); available to a member of (Giglio his staff. (4th Barbee v. 1964) Warden Cir. F.2d States, supra, United 154, (prosecution U.S. at 92 S.Ct. police liable for nondisclosure).) 763; Ingram Payton cf. (4th 1966)

H31 1173; 271, at 79 S.Ct. supra, con of judgment considered cantly, the 1974) (5th Cir. v. DeVoe States be firmly scholarship stands temporary 776.) F.2d pro in criminal disclosure fuller hind sure, of one stan- application To be Amendment Proposed (E. ceedings. g., evi- “materiality” of undisclosed of dard of Crimi Rules Federal of the Rule 16 to us presented is issue when the dence Committee Advisory Procedure nal stan- and of a different appeal direct 17.) thereto, 62 F.R.D. Note 304 - evi- “materiality” of the same of dard the ines serves Brady rule Further, the on a presented is issue when dence rendering function timably important may court a district motion post-trial rule just; more proceedings criminal product the end because anomalous seem prosecu hardship no undue works a new trial. may be situations both prosecution requires merely tion, but any anomaly, is that there the extent To evidence material plausibly disclose long which we however, one to are it is accused, resolve to an favorable erroneous accustomed, example, the for “The disclosure. in favor any doubt a may often be of evidence exclusion con is not obligation [prosecution’s] appeal, reversal on direct ground possible, as that, so far vict, to see but evidence, if discovered the same whereas respecta No . . . . emerges truth be a sufficient would not after served is [prosecution] interest ble before the a trial motion for new ground of information its concealment Moreover, the difference court. district conceived, to the material, generously ex- the result rules is also defenses.” possible all case, including Giglio that Brady and concern pressed (1967) 386 Maryland (Giles v. “automatically not error should (Fortas, 793, 809, 17 S.Ct. 87 J., combing ‘a a new trial whenever require concurring).) trial after the prosecutor’s files for- rule Chapman Application useful possibly disclosed evidence has throwing any burden our bids to have likely but not defense prejudiced how nondisclosure ler to show ” (Giglio . . . the verdict changed majority’s first- Accordingly, him. States, 405 U.S. at supra, v. United is irrele- nonreversal reason stated quoting vant. 148.) F.2d Keogh, supra, 391 majority’s basis for The second v. Valdivia Finally, United required is not that reversal conclusion upon which 1973) Cir. majority opinion evidence undisclosed relies, support does new trial. enough to warrant material in that The evidence governs its conclusion. test that majority applies withheld, not materi- and it was was not new trial made for a motions post-trial prosecutor’s The Brady sense. the al in the That court. the district before evidence, possessed never office like a case Unit- This wrong test. ato one Silva a statement (9th Cir. which was Diaz-Rodriquez v. ed nar- had delivered that he agent Brady ma- customs which 1005 in 1973) cousin. the defendant’s cotics after discovered terial about defendant told the agent a customs made the defendant basis end shortly before statement Silva’s the district trial before a new for motion nev- agent trial. defendant’s situation, govern- of absent court. it, about office prosecutor’s er told is not court faith, the district bad mental facts the recitation nothing it trial unless a new granting justified any agent the customs suggests evi- newly discovered that the concludes “ anyone. the statement disclose duty to any reasona- ... ‘could dence information simply volunteered judg- He have affected likelihood ble Moreover, rejected we defendant. (Giglio .’” . . jury ment statement the Silva argument 92 the States, supra, impeachment useful have been Illinois, Napue quoting purposes; it had no substantive signifi-

cance. agree

I with the majority that the oth-

er claimed errors are not meritorious,

but I would reverse and remand for the

Brady: error. .

Doris al., ARMSTRONG et

Plaintiffs-Appellees,

Benjamin WARD, Commissioner of Services,

Correctional al., et Defendants-Appellants. Stephen M. Latimer, New York City (Bronx Legal C, Corp. Services Donald No. Docket 75-2109. Grajales, New City, York Project Di- United States Court of Appeals, rector; Charles Jones, H. Newark, J.,N. Second Circuit. Rutgers University Clinic, Prison Law the brief), for plaintiffs-appellees. Argued Dec. 1975. Lewittes, Joel Asst. Atty. Gen., New Decided Feb. York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Stanley Kantor, L. Asst. Atty. Gen., New City, York on the brief), for defendants-appellants. Before OAKES, VAN GRAAFEI- LAND MESKILL, Judges. Circuit GRAAFEILAND, VAN Circuit Judge: Prior to May 1974, Bedford Hills Correctional Facility (hereinafter “Bed- ford Hills”) the only general con finement facility adult sane female felons in New York State. Because this facility had overcrowded, become Department of Corrections in May 1974 authorized the establishment of a second women’s institution, to be located grounds of the Fishkill Correctional Fa cility Beacon, (hereinafter New York . “Fishkill”) 7 N.Y.C.R.R. (effec 100.91 tive May 24, 1974). Within a matter of weeks thereafter, a number of inmates

Case Details

Case Name: United States v. Ollie H. Miller

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 26, 1976

Citation: 529 F.2d 1125

Docket Number: 74--3019

Court Abbreviation: 9th Cir.