United States v. Richard E. Taylor

copy to officer a loan of Continental. The WALLACE, Before ELY and Circuit Continental, photocopy tendered to Judges, TAKASUGI,* Judge. District was copy of the letter Continental re- loan,

lied on in approving the was admitted into evidence at trial Govern- ELY, Judge: Circuit 23, January ment “24.” On Exhibit subject The causes have been consolidat- Taylor agreement signed letter Con- ed on cases Because the involve a purporting tinental to confirm Home Feder- single defendant and arise from the same al’s first lien commitment.1 After proceeding, criminal of each the facts cause signed agreement, the letter without autho- issues, together. legal are discussed rization, capacity in his as an officer of however, require separate are distinct and Federal, Home Continental funded the resolution. million loan. $1.97 In July Wittman’s corporation de- FACTS faulted on the loan. and Wittman 1977; E. Taylor appeals Richard from his con- were June indicted in the Govern- wire granted viction of fraud in of 18 ment’s violation motion for severance was (1976) (No. 78-2512) 16,1978. January U.S.C. and an commenced trial denying order of District his mo- March * Takasugi, agreement Honorable Robert M. United States This letter admitted as was Judge, California, District sitting by designation. Central District “25.” Government Exhibit jurisdic- communication. prior to interstate critical

An issue at trial charged2 was the crime objected element of counsel at to the admission tional already signed the Taylor had whether on the potentially spurious document January dated fraudulent letter The trial “best evidence rule.” basis of the “24”) when it of Exhibit (the predecessor “24” as ultimately admitted Exhibit court Texas, telecopied from California evidence, relying on the Govern- secondary it after its signed Taylor had whether document ment’s claim that “origi- Neither Texas. transmission to subpoenaed from unsuccessfully had been produced at was ever telecopy nor the nal” e., i. Continental, parties, the relevant Instead, introduced the Government trial. Federal, corporation.4 Home and Wittman’s “24,” photocopy which was either Exhibit probe course of the District Court’s reproduc- more remote telecopy or a attorney prosecuting Tay- reflect “24” did tion.3 While Exhibit issue, Taylor’s qualified trial counsel made a conclusively it was never signature, lor’s of the exhibit stipulation to the admission was a direct the exhibit established on the truth of the Government’s based leaving open possi- copy telecopy, of the representations.5 not affixed bility signature was 2. 18 U.S.C. 4. Fed.R.Evid. 3. An 5. At letter, vision communication commerce, to tures, transmission reliance of either the nal can be process took the defrauded inals. 807, letter legally operative of the documents, “scheme part, recording, need not rule on this rationale. M. and other evidence of the contents of a (2) district such scheme or artifice.” “best evidence” rule the evidence in the case will have to be what- THE COURT: nal of this letter has been ever it is ports understand MR. SHENAS ing ^[02] Berger, ORIGINAL NOT OBTAINABLE. admissibility 810 n.4 place: argument based on a typed must be treated as or sounds your objection (1978 Supp.1979). See United States v. telecopy. judge, follows: or artifice to defraud” involve be— or procedure; concerning Weinstein’s Evidence ¶ obtained any writings, rather in San & “by photograph your point. defense ultimately 1004(2) provides, following colloquy Texas can be made analysis Well, now, [Defense Counsel]: for the “The means of representation issue Under this document than the Diego (1976) requires that by any telecopy bank made 1976); 5 J. Weinstein & what [Exhibit “24”] .... counsel, in interstate original on because the officer legally purpose is admissible if — ... turns out to be. I ” signs, signals, pic- wire, is not the here’s other Because we decide that the am Gerhart, admissibility, subpoenaed available for “original” typed view, or a is not and operative orig going that the radio, grounds, my ruling. purposes of between the the loan in 1001(3)[01] prosecutor Is that rul- photocopy or “original” the latter executing pertinent No required, original, writing, judicial or tele- foreign origi- origi- over- from pur- of of I THE COURT: THE COURT: THE COURT: Can’t THE willing MR. SHENAS: Thank gation was— that — ument was from What? thing THE COURT: Just a minute. that’s question directly? gation was initiated— and from Home Federal THE MR. right. “no”? MR. KELTON: come MR. KELTON: When the Grand kind. MR. and Home Federal. record that there’s pered MR. SHENAS: MR. KELTON located. But I am after neys, MR. SHENAS: Your [Continental], naed, that’s son Shenas’ and the bank in Texas [Wittman’s transaction, KELTON: who is KELTON: COURT: —and COURT: subpoenaes, [Continental], after anything. down make with this Home Federal true, true or not. to Now, implication rely speaking I will believe it. He hasn’t said that’s a subpoenaed by the corporation] has been asking from [Wittman’s Is that the this is Yes. on? When the Grand Now, That the Yes. evidence. Now, Judge, I and I after [Prosecuting Attorney]: no [Wittman’s a you representation you If counsel will tell me making can’t Honor, has been you. important when representation everybody do speaking has been really object to Mr. original answer, somebody answer it question, must you you the Government? I don’t know if this I am the that could corporation], corporation], want some- Jury Jury Government answer that subpoenaed, to the attor- say of that doc- subpoenaed “Yes”? involved in statement has tam- “yes” whether subpoe- investi- for the investi- of that per- you All or tion proved piece “24” to be a vital of of that necessarily Exhibit matter involved It was evidence for the Government. used matters outside the record. a Taylor’s contention that fraudu- personal request to rebut made a of the time of did exist at the subpoenas. Unfortunately, lent scheme the Govern- letter; January transmission respond ment proof.8 did not such important used to it was corroborate 15, 1978, Taylor On November filed a testimony prosecution’s respects of motion in District Court for writ a witness, officer key loan Mi- Continental error challenging coram nobis the Govern- Wells; and, importantly, pro- chael most subpoena representations ment’s and re- essential element vided evidence of an questing hearing a thereon. The District charged offense —interstate communi- Court denied motion without a cation to execute a fraud.6 due, hearing, part, pendency guilty verdict jury The rendered appeal before this Court. Taylor was sentenced March to a appeal (No. 79-1240) filed an from the or- day. On year July term one der summary denial on March 1978, Taylor filed a direct from his Later, 3, 1979, May following argu- oral (No. 78-2512), assigning conviction a varie- ment in the direct two causes— significant ty of trial errors. most and collateral —were consolidated. allegation error the District 15, 1980, January On both were submitted Court erred in the admission Exhibit for decision. because, alia, copy was “24” inter im- proper under the “best evidence rule” of the DISCUSSION Federal Rules of Evidence.7 In his direct I. No. 78-2512 Taylor impugn veracity did not of the concerning Taylor Government’s statements raises claims several of error in his inability subpoena power of the to un- the most serious of which is document, original cover the since resolu- that admitting District Court erred in production original just put my for the of the letter of MR. KELTON: I would like to record, January position your 1975—which Telexed to on the It was Honor. would Texas. take one second. is this: all I That That have Yes, they have, lay through to MR. KELTON: and would do to that foundation this, say your way also Honor: is no witness is There establish a record that that was original kept ordinary that letter could been in course of business at corporation], they Texas because it was point. That’s the and [Wittman’s Telexed. that do not have the my And that is available. Well, up position THE COURT: it would show under the Federal And I then Rules. Federal, Home wouldn’t think I have made that clear. it? right. THE MR. KELTON: Home not have COURT: All I will Federal does admit the secondary it. document the basis of evidence your right. subpoe- inability through THE COURT: All It’s been because only thing power produce originals. naed there. I That’s am ask- about, R.T., V, added). ing you (emphasis and said Vol. at 51-54 it has been. So See enough. you That’s also id. 43. that’s what have said at explanation. and needn’t have more supra. basis, See note accept And I will this in secondary evidence as evidence. Now, you responsibility you 7. See know the Fed.R.Evid. assuming say you subpoe- when it’s been Don’t so pass naed. look disheartened. 8. We do not on whether the Government disheartened, Judge. MR. KELTON: I’m not obliged respond was to defense counsel’s only point trying I am I non-judicial request proof subpoenas. make for good analysis process made faith offer of to the Our the due duty Court— nobis assumes that no existed. It issues suggesting you however, emphasis, THE COURT: I am didn’t bears the Govern- good asking compliance it make faith. I am about a ment’s literal does little to conserve it, resources, my judicial accepting foundation for in evi- we have been forced to since secondary subpoena issue in dence evidence. deal with the the abstract. Having stipulated “24” into evidence. deter- and even unavailability Exhibit merit, letter, “original” these claims are without the record on direct mined that appeal compels reject Taylor’s that we Taylor’s conviction. we affirm argument.13 “best evidence” Taylor argues that because Exhib carefully We have considered re- photocopy it at of the teleco “24” is best maining claims and find that the District letter, 16,1975 it pied January improp was discretion, Court did not abuse its that the erly admitted into evidence. Federal Rule instructed, jury properly and that asserts, Taylor correctly of Evidence adequate support jury evidence was requires production “original” Therefore, Taylor’s verdict. conviction of thereof, writing prove the contents “ex wire fraud in the District Court is affirmed. cept provided.” Taylor as otherwise con “24” is tends that since Éxhibit neither an II. No. 79-1240 “original” “dupli under Rule 1002 nor a During the pendency 1003,9 exception cate” within the of Rule appeal, he also filed a coram nobis motion should not have been admitted into evi Court, with the the summary District denial Taylor’s argument dence. overlooks the subject is the of the collateral appli state of the trial record and the clear ruling denial his col- exception 1004(2), cation of the of Rule motion, lateral solely we address the issue which allows the admission of secondary of whether has demonstrated that “original” evidence when the cannot be he is hearing entitled to a and do not decide judicial procedures.10 obtained available whether relief is warranted. For the rea- When Exhibit “24” was offered for intro below, sons set forth we reverse the District duction into evidence at the Govern Court and remand for further proceedings. represented ment to the District Court that subpoenas requesting “original” letter— In the motion for a writ of error e., typed Diego i. the one in San had presented coram nobis14 to the District —11 parties been served on the below, alarming levels charges “original” produced. was not In reliance on against the Government. He contends that this representation, the District Court ad prosecuting attorney misled the trial mitted Exhibit “24” into Taylor’s evidence. judge and defense counsel to believe that object counsel did not to the exhibit’s adm subpoenas had been issued at trial for the ission.12 Because Taylor’s “original” letter, counsel failed with the result that a less “24,” object short, admission of Exhibit reliable document In was admitted. provides “duplicate separately 9. Fed.R.Evid. 1003 that a discussed in the coram nobis original admissible to the same extent as an No. 79-1240. (1) genuine question unless a is raised toas authenticity (2) original or in the circum- supra. subpoenas 13. See note 5 Whether the dupli- stances it would be unfair to admit the jury subpoenas grand issued were trial or sub- original.” in cate lieu of the not, event, poenas dispositive. would in be 1001(4) “duplicate” Fed.R.Evid. defines as “a Advisory 1004(2) Committee Note to Rule counterpart produced by impression the same contemplates relatively a lax standard of una- matrix, original, by as the or from same or vailability, surely met on the record here. photography, including enlargements means of miniatures, by or mechanical or electronic 14. The common-law writ of error coram nobis re-recording, by reproduction, or chemical or statute, by 1651(a) is available (1976) (All 28 U.S.C. § by equivalent techniques other which accurate- Statute), Writs to correct errors of ly reproduces original.” [sic ] fact of such fundamental character as to render proceeding irregular itself and invalid. supra. 10. See 4 note 502, 505-13, Morgan, United States v. 346 U.S. supra (telecopy photocopy 247, 249-53, (1954). 11. Cf. note 3 or 74 S.Ct. 98 L.Ed. 248 telecopy might operative legally “original”). circumstances, Among other it is available to vacate a federal conviction where the sentence Taylor’s argument 12. that the Government fac- imposed yet Migdol has not been served. v. tually misrepresented subpoe- the issuance of States, (9th 1961). United 298 F.2d 513 nas duces tecum to obtain the letter is

571 Taylor’s gives pros- nothing process claim rise to the limits principle somber the due pect committed a Government to these situations. aWhen conviction is ultimately fraud on court which worked secured methods that offend elementary prejudice great a case.15 justice, may standards of the defendant in- voke guarantee the Fourteenth Amendment points While to no cases fundamentally of a fair trial. See Irvine v. involving closely tracking those al facts California, 128, 144-49, 347 leged motion, we have doubt U.S. 74 in his no S.Ct.' Taylor’s general 381, of principle 389-92, assertion (1954) (Frankfurt- 98 L.Ed. 561 e., grounded authority, in /. respectable er, J., Moreover, dissenting). principle pollute prosecutorial may misconduct so strictly is not those limited to situations in prosecution as to require criminal new arguable which the defendant has suffered in especially pro when the taint prejudice; designed the principle to main- ceedings seriously prejudices the accused. tain public also confidence in the adminis- therefore, Courts, new trials ordered justice.20 tration of knowingly prosecution when the has used Thus, prosecutorial a claim of impropriety perjured or testimony16 materially withheld pleaded type subject motion defense;17 favorable evidence from the may be a basis for relief a coram nobis pursuant have excluded evidence seized determine, therefore, action.21 We must searches;18 and unlawful have dismissed whether the District denying Court erred in indictments was en when defendant opportunity prove an trapped police allega- the creative concert of his We officers criminal activities.19 see tions.22 Alternatively, Taylor’s opening Hampton 484, brief in No. v. United 425 U.S. 96 1646, reply allege appeals (1976); 78-2512 and briefs in both S.Ct. L.Ed.2d United subpoenas Russell, 423, 1637, that the Government’s during were issued States v. 411 U.S. 93 S.Ct. Jury proceedings, (1973); Grand 36 L.Ed.2d 366 Sherman during opening trial. 369, its brief No. 78- 819, U.S. 78 S.Ct. 2 L.Ed.2d specify the Government does not what (1958); Hermosillo-Nanez, United States v. subpoenas type of were issued. If the issue of 545 F.2d nied, cert. de claim, timing were the extent of 429 U.S. 97 S.Ct. L.Ed.2d might be affirm inclined to the dismissal of the (1977). motion, jury grand coram nobis because sub- poenas “judicial proc- would have fulfilled the rejected 20. “This has the notion that procedure” requirement ess or of Fed.R.Evid. because a conviction is established on incon- 1004(2). supra. See note 13 We focus instead may stand, proof guilt testable no matter subpoenas further assertion that no how was secured. of due Observance were issued. process questions guilt has do not with guilt but innocence the mode is as- Illinois, Napue the of Under doctrine v. 360 California, certained.” Irvine v. 347 U.S. at 264, 1173, 1177-78, 269-72, S.Ct. U.S. 79 3 148, (Frankfurter, J., 74 at S.Ct. 391 dissent- (1959), 1217 L.Ed.2d a conviction violates the ing). Fourteenth if it Amendment is obtained the perjured testimony prosecu- use of which the purposes analyzing 21. For the of the issues tion knows to or later be false discovers presented compelling in the there no go false and allows to uncorrected. nobis, distinguish reason to between coram 17. In United 97, Agurs, 427 States v. U.S. 103- 2255, corpus authority; and habeas § case 04, 2392, 2397, (1976), S.Ct. 342 96 49 L.Ed.2d however, cases other than under 2255 have recently Supreme the Court reiterated that the been See note earmarked. also 25 infra. prosecu- process require of demands due the materially tion turn over favorable evidence would, claim of Government fraud to the defense. See also United States v. Hi- proven, if meet the tests for various relief bler, 455, (9th 1972) (pros- 463 F.2d 459-60 Cir. nature of coram nobis. We do not read Moon process ecution in a due criminal owes a States, 530, (D.C.Cir. v. United 272 F.2d 532 “duty defendant). of candor” to suggest or the District Court to other wise. 18. See Calandra, generally States v. 414 United 338, 356-66, 613, 624-28, deny The District Court relied on Moon to U.S. 94 S.Ct. 38 nobis, (Brennan, J., (1974) dissenting), ap- for L.Ed.2d 561 motion a writ parently reasoning alleged in and authorities cited therein. that the error the

572 sufficiently extraordinary to warrant dual determining whether

Before however, we note hearing, proceedings. to a is entitled of a the assertion presented by problem the has been burden Whether challenge during pendency collateral and difficult in this case is a close carried Gener conviction. appeal from a the direct claim di question. Taylor’s coram nobis severely appeal noting of such an ally, seriously implicates this Court’s rectly and claim with filing of a collateral restricts We af appeal. direct Court, anomaly decision to avoid the District our largely the conviction because of considera firmed simultaneous associated uphold the of Exhibit courts. decision to admission by two See the same case tion of 38, (9th aegis Federal Rule of States, F.2d 41 “24” under the 269 v. United Black decision, turn, denied, 938, 1004(2). 361 80 That 1959), cert. U.S. Evidence Cir. 379, (1960); Welsh v. unsub L.Ed.2d 357 was founded Government’s 4 S.Ct. unrebutted, States, (5th 1968) stantiated, at 404 F.2d 333 Cir. albeit declaration United States, curiam); Womack v. United had failed to (per power trial that the 630, (D.C.Cir.1968) (per Therefore, cu F.2d 631 produce document. practice is to make a riam). challenging The usual Taylor’s collateral claim — subsequent error assertion of representation— collateral truth of Government’s decision in the direct the date of disquieting which threat question raises a du path is followed the risk of When this very basis of our affirmance ens conflicting judicial administra plicitous Taylor’s conviction. minimized, disposi inasmuch as

tion is When, this exceptional as in the facts of may render the appeal tion of the direct case, casts such a dark the collateral claim States, moot. See Black v. United motion pivotal aspect on a of the direct shadow 269 F.2d at 41. and, time, appeal implicates at the same pro- fundamental fairness of the trial and general rule of forebearance actions, priety of the Government’s it is our not, however, jurisdictional impediment. justice view that the concerns for are best The District Court entertain a collater may by prompt confirming during inquiry served either pendency al motion of a dispelling suspicion irregularity appeal circumstances” or “extraordinary when, outweigh particularly raised. This is true the considerations of administra here, forth- judicial economy. tive convenience and See the Government has refused 317, 318 (9th support its critical rightly Jack v. United 435 F.2d account denied, 1970) (per curiam), Accordingly, cert. representations fact. 1530, S.Ct. 28 L.Ed.2d erred in dis- U.S. hold that District Court Davis, (1971); F.2d United v. missing Taylor’s solely States motion because 1979); 484-85 pending before Tindle, (D.C.Cir. v. 522 F.2d 692-93 Court. curiam);

1975) v. United (per Womack Passing ap of this the merits 631; 395 F.2d at United States we must decide whether the District peal, Deutsch, F.Supp. (S.D.N.Y.1971), properly otherwise in dismiss acted aff’d, Cir.), (2d cert. 119 n.22 ing motion writ of coram nobis denied, 682, Taylor’s 1019, 30 404 U.S. 92 S.Ct. hearing. the benefit a Our task (1972). Hence, without Taylor’s prior 667 L.Ed.2d is made more analyzing in his contention his an abso appeal from conviction is not Court, fact the District by mo difficult lute bar to his concurrent coram nobis motion, gave only tion, Taylor’s though imposes upon passing him in the burden summary for its dismissal. proving the existence of circumstances scant elaboration was, Taylor Moon, finding plead apparent “ex- on the did not sufficient instant case as in (cid:127) discussed, infra, reject ceptional to come within record. As will be circumstances” view, reject pending appeals exception. as we also the District Court’s

573 Thus, view, attorney’s al in our prosecuting The the District Court leged misrepresentations, which form the summarily denying Taylor’s erred in claim motion, basis of are included in the merely challenged because the statements consequence, As a the Dis trial record.23 appear in the trial record. appears suggest trict in the order Government, opposition in motion, denying the and Government conclusion, to such a insists that Taylor has error in clearly argues on raising not carried a question his burden of admission of Exhibit “24” court’s and, hence, falsity prosecuting about the attor was reflected in the trial record ap ney’s should have been asserted direct comments. we deal here Since with Therefore, argument proceeds, peal. petition the dismissal of a for coram nobis asserting argu his relegated is determine, hearing, with no we must as we all, ment, appeal the direct not if at and 2255,25 do claims under whether the § by way of writ of error coram nobis. We “motions and and files records of the quarrel proposition have little with the conclusively show that the prisoner case ordinarily the admission of evi erroneous entitled to no relief.”26 See United States dence at trial is an error should be Boniface, 390, (9th v. 601 F.2d 393 Cir. taking challenged by appeal an from the 1979); States, Dukes v. United 492 F.2d judgment Cauley of conviction. v. See 1187, (9th 1974) (per curiam); 1188 Cir. Lo States, 318, (9th 294 F.2d 320 United Cir. States, pez 997, 999-1000 v. United 439 F.2d States, 1961); v. 197 Barber United F.2d (9th 1971). inquiry Cir. This necessitates a Cir.) denied, (10th (per curiam), cert. 815 (1) analysis: petition twofold whether the 857, 94, 344 U.S. 73 S.Ct. 97 L.Ed. 665 allegations er’s specifically delineate the (1952). salutary principle Yet that finds no claim, factual basis of his Diamond v. Unit to mis it is here, invoke and to application States, 35, (9th 1970); ed 432 F.2d 37 Cir. claim. obscure apprehend Wagner 618, v. United 418 F.2d 621 The coram nobis motion does not focus on (9th 1969); and, (2) Cir. even where the propriety of the trial court’s reliance on allegations specific, are whether the rec statements, prosecuting attorney’s with ords, files and affidavits are conclusive more, out in the admission of Exhibit “24.” against petitioner. United States was, That properly, matter addressed in the Moore, 310, (9th F.2d 1979), 312 Cir. motion, appeal. Taylor’s collateral denied, 1024, 100 687, cert. 444 U.S. S.Ct. rather, veracity strikes at the vel non (1980). L.Ed.2d Since the is representations Government’s to the trial record, does appear sue but is an issue, court. On that the record is barren. matter, principal legal ques extrinsic Indeed, it is challenge because the collateral tion whether has endowed his propels murky us outside the record into the with sufficient petition particulars factual speculation realm of that we harbor doubts require hearing. about the fairness of trial.24 a supra. (10th 23. See note 5 v. United 353 F.2d denied, 1965), cert. 383 U.S. 86 S.Ct. Analogous involving situations matters (1966). L.Ed.2d which, proven, would amount to a denial of a fair trial and which cannot be raised (1976) provides, perti- 28 U.S.C. they scope because are outside the part: nent cognizable upon collateral motion. Unless the motion and the files and records See the cases States, v. United collected Houser conclusively prison- of the case show that the 517-18 relief, including circumstances of coerced confes- er is entitled to no the court shall cause sions, suppression helpful upon evidence notice thereof to be served prosecutor, knowing grant hearing the Government’s use of attorney, prompt testimony, . false of a tran- thereon, falsification make find- determine the issues and script prosecutor. ings of fact and conclusions of law with re- spect thereto. hearing required 25. Whether on a is a nobis motion should be resolved in the same Owensby corpus petitions. manner as habeas short, clear, claim is that the fraud.27 In his assertion support of In detailed, by the trial court and de- the misled and unrebutted plausible, Government counsel, points first fense record. the to that Govern- record demonstrate unusual Further, presents an this ease were not substantiated. ment’s statements has made situation because the Government presumption verity of overcome the To deny Taylor’s to specifically no effort attorney’s by prosecuting state- borne the subpoe- less the charges produce to —much ments, Taylor largely on the relies affidavit uncertainty the Despite nas question. counsel at trial. Stephen Guy, D. defense of declarations, its the surrounding trial he his affidavit was Guy states in consistently has resisted Government Seifers, agent the re- Donald by informed by interposing ar- accountability technical subpoenas Government’s sponsible for the guments, some of which have been referred case, that, best, grand jury at some in this response to above. Government’s issued, have been but that subpoenas may sub- plainly nothing does to controvert the was certain the letter Seifers appellant’s claim. To the con- stance of purpose subpoenaed not for the of had been trary, lingering it serves reinforce the appropriate from least two of the trial at proof in this case since of the sub- doubts e., i. Bank and Home parties, Continental exists, poenas, presumably if it is Federal. Taylor’s inquiry, hands the Government. record, Taylor’s the against Viewed claim being opposed, rather than should clarity, focusing not as does lack for it does been as a welcomed the Government Moreover, issue. his on building public greater means of confidence charge is affidavit fortified an which judicial system. in our forth factual averments giving sets clear question subpoe- to a as to the rise serious particular circumstances of this Wagner Compare nas. v. United rights case—where at stake are both the (§ F.2d at 621 2255 movant need not the individual before this Court and the evidence,” only his make “detail “factual are sanctity generally of the courts —we Cardwell, allegations”), with Wacht v. say juncture that unprepared to at (9th 1979) (mere allegation F.2d Cir. a has failed state claim. Whether judge failed to inform state support or is not there factual his parole ineligibility the defendant about allegations subject should of further general require too a hear- proceedings before District Court. ing), and Eaton v. United 384 F.2d We have concluded that there should (9th 1967) (in a motion vacate in this hearing have been a case. If sentence based defense counsel’s failure did, fact, subpoena origi- Government witness, allegations to call a material letter, easily nal this should be demonstrat- were insufficient to sustain an inference frankly sincerely hope ed. It our the testimony would have been favor- forthcoming, obviating that such Likewise, to appellant). able the conse- But, inquiry. the need for further true, quences presented, if the claim are hand, hearing if in manifest, other the course heavily since Exhibit “24” bore out, e., appropri- pivotal Taylor’s usage claims borne issue at i. perpetrate remedy promptly of interstate communication to ate can be determined.28 distinguish ultimately play may This is in this sufficient to such cases as into come Bowers, supra, United States v. case, accompanying notes 16-22 see text where, appellant’s pros- assuming judgment to the extent withhold showing appel- prejudice was sufficient to establish that his ecutorial malfeasance telephone tapped, nothing necessary counsel’s had District been relief. The to warrant lant issues, suggest any pass was offered to connection between on these will be able to exist, proceed- they claimed surveillance and the trial the assistance fact presently ings. before complete record factual this Court. demonstrate comments our earlier While safeguards process due for the our concerns will tack would “extraordinary coram nobis writ be eliminate the Accordingly, the If requirement. reading further District Court for circumstance” remanded to the correct, regardless relationship conformity opinion. is of the be- proceedings in with this arguments support the tween made of SO ORDERED. conviction, of nobis and reversal coram granting a writ of coram nobis will always, WALLACE, concurring Judge, Circuit majority, in the sense used the “under- part dissenting part: mine” affirmance of a conviction. the The relationship arguments ap- between the on I concur in the affirmance of not peal strength- and on coram nobis does (No. 78-2512), respectfully conviction but majority’s position. disposition en the Our majority’s dissent from the treatment legal on evidentiary question appeal the 79-1240). (No. the coram nobis issue regardless remains valid whether the I believe majority reversing errs in true, representation just prosecutor’s as judge’s holding petition district that the disposition issue legal appeal of a on untimely for a writ of coram nobis is be valid subsequently would remain even if set pendency appeal cause of the of the direct aside a collateral on issue. agree I is conviction. that there no jurisdictional hearing a impediment to cor- majority appears The treat this case as am petition during pendency nobis of a exception, a limited but has failed to make States, direct v. appeal. Jack United any analysis of “extraordinary when an cir- 1970) curiam), F.2d Cir. (per cumstance” exists such that a collateral at- denied, cert. 402 U.S. S.Ct. appeal pending permissible. tack I have (1971); L.Ed.2d 867 Womack United v. been to locate only able one court of appeals (D.C. 1968) 395 F.2d Cir. opinion to identify an “extraordinary cir- however, (per curiam). majority, gives The cumstance.” Tindle, United States v. requirement short shrift there (D.C. 522 F.2d 689 court held be “extraordinary circumstances” before alleging that a section 2255 motion ineffec- petition may such a be reviewed. The basis tive permissible assistance of counsel was for this requirement that “determination despite the pendency appeal. of an Id. at appeal may direct render collateral 692-93. D.C. Circuit reached this con- Thus, unnecessary.” attack Id. exam clusion as the possible best resolution of the ple, conviction, if we had reversed tension between its precedents in Womack petition his for writ of coram nobis would v. supra, and United unnecessary have been and would have DeCoster, (D.C. 1973). F.2d 1197 judicial By been a waste of resources. af Tindle, supra, See United States v. firming judge, the district would Taylor 692-93 & n.10. would us read deprive Taylor his opportunity to seek a broadly proposition Tindle to stand for the Indeed, writ of coram nobis. the usual that whenever the relief desired cannot be procedure is to seek such a writ after sought appeal, may sought collater- is decided. ally pending appeal. I have substantial appears

The majority position to take whether doubts our circuit should adopt that because reading nobis claim and the even of Tindle, the narrowest but related, claim on appeal disposition certainly there is no basis for the broad question coram nobis could under- of Tindle reading urges. In- This, deed, mine the I appeal. decision read even there were valid reasons for provides the majority opinion, adopting reading, the “extraor- the broad I am not con- dinary circumstance” that remedy warrants vinced had no on ap- propriety during peal. Taylor a collateral attack claims basis for his pendency defect, of a petition To make this coram nobis is that permitting prosecutor’s alleged misrepresentation standard for a collateral at- subpoenas, lies out- about the existence major- 5 in the As footnote

side the record. indicates, judge did the district

ity opinion an offer to make require prosecutor subpoenas. existence of error, may but it may

This have been failing to counsel by Taylor’s waived

been fact, prosecu- and, accepting

object event, representations. oral

tor’s Taylor had a reme- arguable that

is at least have been most It would

dy appeal. arguments raise his

efficient for him to unsuccessful, then, seek writ of nobis, burden the courts rather than proceedings. two simultaneous expands majority improperly exception to circumstances”

“extraordinary effectively eliminates the extent that it to crimi- preventing collateral attacks

rule during pendency of di-

nal convictions I would appeals from the convictions.

rect judge properly dis-

hold that the district writ of coram petition for a

missed the extent the dismissal

nobis to to re- prejudice Taylor’s ability

without peti- after Because I think

file untimely, I would not reach

tion was hearing should have been

issue of whether a

held. STINNETT,

Roy Plaintiff-Appellant, L. CORPORATION, OIL

DAMSON

Defendant-Appellee.

No. 78-2815. Appeals, Court of

Ninth Circuit. June

Argued and Submitted 20, 1981.

Decided March May

Rehearing Denied

Case Details

Case Name: United States v. Richard E. Taylor

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 17, 1981

Citation: 648 F.2d 565

Docket Number: 78-2512, 79-1240

Court Abbreviation: 9th Cir.