*1 letter, its fail- address this district court error. The not a critical so was
ure to do the let- have construed court could district guilty plea; to withdraw the a motion
ter as suggest any however, did not the letter provide a sufficient
grounds that to withdraw allowing Lawson
basis for thought counsel could
plea. That Lawson nec- plea does not negotiated a better plea
essarily on whether bear voluntary. knowing and See (7th F.2d Savage, v.
States Cir.1989) (disappointment with sentence permit reason to
not sufficient plea). As discussed
to withdraw 11 col- responses during the Rule
Lawson’s with his claim of
loquy are inconsistent It is also notewor-
ineffective assistance. signed claims that he
thy that Lawson penalty, this does
fear of the maximum but involuntary. Brady plea make his 742, 746-47, States, 397 U.S. v. United 1467-68, (1970); 25 L.Ed.2d
S.Ct.
Hayes,
v.
Bordenkircher
cf
98 S.Ct.
(1978).
it that even had district
acknowledged letter and conduct- Lawson’s hearing, evidentiary an Lawson could
ed heavy
not have carried his burden. See
Ellison, F.2d at 643.
III. CONCLUSION reasons, these
For
district court is
Affirmed. America, Appellee,
UNITED STATES TIERNEY, Appellant.
Thomas W.
No. 89-2479. Appeals,
United States Court
Eighth Circuit. 10, 1990.
Submitted Oct. Oct. 1991.
Decided
Rehearing Rehearing En Banc
Denied Dec. *3 Bunch, Mo., City, B. Kansas for
Willard appellant. D.C., Lindsay, Washington, E.
Robert appellee. McMILLIAN, Judge,
Before Circuit ROSS, Judge, Senior Circuit STUART,* Judge. Senior District * Stuart, Iowa, sitting by designation. The Honorable C. Senior United William Judge District of States District for the Southern McMILLIAN, Judge. vice-president, Jackson, ecutive and Tom Circuit a pilot assistant, and administrative visited (“defendant”) ap- Thomas W. plants three times and observed that final entered from a peals they operational. were not Defendant also for the West- District Court1 United States certifying drafted letters to the IRS verdict, upon jury of Missouri ern District plants operational, (a which Paul Liscom conspir- finding guilty him of one count of independent engineer chemical hired to in- States in viola- acy to defraud spect plants) expected sign after (1988), and fifteen of 18 tion U.S.C. § visiting plants. assisting preparation in the counts of tax materially false income returns viola- 29, 1982, inspected On December Liscom 7206(2). The district tion of 26 U.S.C. § plants and discovered that the *4 years pris- in court sentenced him to three were still under construction and that none on, $10,000 fine, payment of the costs of plants the ready produce of to ethanol. years probation. of prosecution, and two completing inspection, After his Liscom vis- reversal, (1) argues that the For Larry Sinks, ited Kruzie and Ken two of denying in certain mo- district court erred cofounders, Titan’s at Kruzie’s house. (2) tions, court should have the district gave the Sinks Liscom certification letter prose- the indictment because the quashed by drafted defendant and asked Liscom to interest, (3) cutor acted under a conflict of sign so, it. Liscom refused to do because supported by his conviction was not suffi- plants operational. the were not Sinks evidence, (4) court errone- cient the district Walker, telephoned allegedly then who ously provided jury incomplete the with an brought defendant into a conference call. exhibit, and the district court should Sinks and Liscom testified that defendant jury due to miscon- have directed a mistrial plants technically told Liscom that the were below, For the reasons stated duct. operational meaning reg- the within IRS affirm the of the district court. ulations. Liscom testified that he then agreed certificates, sign to on the con- I. glossary dition that defendant create a ex- 1984, plaining his relevant 1981 and definitions of terms Between glossary general and attach the to the certificates. served as counsel of the Midwest- (“Midwestern”). glossaries prepared, After the were Liscom Companies, ern Inc. Be- contrast, signed By the certificates. Walk- tween 1983 and also served as a prepared glos- er testified that Liscom In Titan En- director Midwestern. (“Titan”), merely approved saries and that defendant ergy Engineering, Inc. a subsidi- Midwestern, them. ary of built and sold four etha- (known nol facilities in New Mexico defendant, Walker, January In and through IV”) partnerships as “Clovis I Baron, account- Carl one of Midwestern’s Under Internal Revenue as tax shelters. ants, visited New Mexico to see a demon- (IRS) regulations, partners Service plants. stration of one of the Walker later advantage tax could not take of relevant demonstration was a com- testified that the unless, alia, they provided credits inter 1983, defendant, plete February failure. In plants “placed that the were documentation Wright, Midwestern’s sec- Walker Carl end in service” of 1982. See retary-treasurer, allegedly decided not to 1.46-3(d) (1991). parties’ C.F.R. The ver- plants partnerships inform sions of all other relevant facts differ dra- incomplete prepare partnership were
matically. falsely claiming tax credits. tax returns (or “pa- govern- They allegedly decided to leave a The federal “the also ment”) that, per giving appearance de- trail” claims December backdating fendant, Walker, complete, by plants ex- Ronald Midwestern’s Sachs, Judge, Howard F. Chief District of Missouri. 1. The Honorable United States District Court for the Western thereafter, Shortly defendant moved to classifying construc- bills and as 1982 bills indictment, alleged on an quash the based work. repair tion work prosecutor. The of interest conflict County, Curry New March this motion. district court denied investigated attorney Mid- Mexico, district Tierney, No. 87-00007 States United had western, built Midwestern 18, 1987) (W.D.Mo. Mar. 01/04/CR-W-6 bonds, and revenue with industrial trial, I). jury a three-week {Tierney After attorney was concerned about the district a directed verdict the district court entered funds. Based misuse of bond possible the issue of overvalua for defendant on that bond funds defendant’s assurances acquitted defendant of then tion. the district attor- properly spent, had been offenses convicted all securities-related In the fall of investigation. his ney closed conspiracy him of to defraud attorney reopened the in- the district assisting and fifteen counts States had failed Midwestern vestigation, because returns. preparation of tax false expendi- its about provide information eventually convicted Defendant tures. appealed then his conviction fraud, court of con- Mexico state a New argument, Shortly after oral to this court. fraud, criminal solicita- spiracy to commit motion for a new defendant filed a racketeering. tion and newly evidence. As a *5 discovered based result, appeal we dismissed defendant’s contrast, claims that the By defendant to the dis prejudice remanded without and perjury, government’s witnesses committed of defendant’s trict court for consideration prepa- in the participate he did not and that No. Tierney, v. motion. See United States tax partnerships’ 1982 re- ration of the 13, 1989). (8th Feb. The visiting the 88-1111WM Cir. also denies turns. motion and a court denied the sub 1982 and denies district plants in ethanol December 29, reconsideration. sequent in motion for participated the December that he 1982, Tierney, also No. 87-00007- call. Defendant United States conference 1989) (Tier- (W.D.Mo. 1, Aug. in the if he was involved claims that even 01-CR-W-6 certification, good II) (order in for new believed faith motion tri ney denying in service” as plants “placed al); Tierney, F.Supp. were States v. III) (order In this by (W.D.Mo.1989) con- de regulations. (Tierney defined IRS text, regulations reconsideration). the that This nying ap defendant- notes motion alleges by that ambiguous and the were peal followed. plants begun pro- had
end of 1982 ethanol.
duce some II. committing Finally, any denies defendant (1) argues appeal, his On defendant instance, in For defen- acts of fraud 1983. for a new and for reconsidera- motions trial co-workers were dant claims that his (2) granted, pros- tion should have been billing, and for any blame for fraudulent interest, a conflict of ecutor labored under misrepresentations made to the any alleged (3) supported by was not his conviction government officials. evidence, (4) partial copy sufficient defendant, Walker, Wright and 1.46-3(d) inappropriately submitted was indicted. indictment Sinks were (5) jury, and he was denied due to the fraud, with securities charged defendant jury misconduct. Each process because of assets, trading, insider overvaluation in be addressed turn. of these issues will States, the United conspiracy to defraud preparation of false aiding tax A. government Specifically, returns. for a new defen repeatedly In his motion had claimed that defendant at- newly discovered evi by alleged that falsely mislead the IRS dant tempted to was proved that his conviction ob plants dence claiming that the ethanol negligent use of prosecution’s end of 1982 tained “placed in service” at the Specifi- testimony. perjured or erroneous overvaluing plants. (1) telephone clearly wit- challenges perju various records established eally, defendant testimony regarding ry by government the December witnesses. The district nesses’ (2) testimony call and assumed that “this new material does conference improbable alleging and Walker that defen- indeed show it is de by Jackson ... call,” ethanol sites fendant had the present dant was at the conference III, December, F.Supp. in 1982.2 Each issue will be but nevertheless denied the government addressed below. motion because the testimony might
witnesses’ have constitut “tangled ed recollections” per rather than jury. Id. at 752. The district court added government As noted several wit- dicta that even if the wit claimed that on nesses December perjured, prose nesses’ in a conference participated defendant call Sinks, Walker, cutor’s use of such Larry was innocent with Liscom and Skel- negligent. rather than ley, general Id. at 752 n. 6. The contractor who built call, suggested district court also plants. In the conference defendant allegedly persuaded sign perjury, appropri Liscom to certifi- absence of a new trial is falsely only newly cates which described the ethanol ate discovered evidence “will plants operational, likely acquittal” Id., and which included a result an on retrial. glossary redefining By relevant terms. citing Begnaud, United States v.
contrast, (8th Cir.1988) defendant testified that he did not (Begnaud). The district participate in the December 29 conference court found that defendant had not shown call at all. witness- acquittal likely that an on retrial was testimony damaged es’ defendant’s credibil- accordingly denied the motion.
ity and established appeal, On yet opera- aware that the were not *6 testimony regard- witnesses’ dictionary tional under a definition of that ing telephone the December 29 call was term. (2) perjured, prosecutor’s failure to dis- Fifteen months after defendant dis- perjury negligent cover rather telephone billing Walker’s records covered innocent, any legal than under stan- repository in a used a law firm relat- dard, prejudice he has shown sufficient to litigation. ed civil These records revealed obtain a new trial. For the reasons stated Tierney in that “no call from Walker to below, arguments. reject we all three City Kansas was billed to the Walker home number,” II, a. telephone slip op. Tierney at accordingly for a new moved As noted the district court telephone trial that the records basis actually partici that defendant doubted participate that he did not in the showed pated in December call. 29 conference 29 call. The district court de- December III, F.Supp. at 749. The See nied the motion because the December 29 district court nevertheless held that “[d]e have to of- call could been billed Walker’s charge perjury unduly dis fendant’s fice number. Id. recollection,” vagaries counts the of human thereafter, likely Shortly perjury defendant discovered and that was less id. records, recollections, in re telephone “tangled office which than confusion Walker’s miscommunication, memories, constructing revealed that no calls made to defendant support the like.” In of this con had been billed to that office on December Id. clusion, court noted that Walk accordingly 1982. Defendant moved the district disagreed ground for reconsideration on the er and Liscom as to whether prose- policy "against duplicating prosecu- federal-state 2. Defendant also claims that his federal However, tions"). Department’s it has been held that defen- cution violated the Justice own restricting may policy policy prosecutions the Petite to bar dual state and dants not invoke States, prosecution. government. States v. Robin- federal See Petite v. United federal son, 529, 531, 450, 451, (8th Cir.1985) (citations U.S. 4 L.Ed.2d omitted). (1960) (noting general has redefined knew which terms had be for the also solely responsible defendant “oper- “in terms such as service” (ie.g., that defendant testified Liscom glossary. ational”) glossary drafted a and could have him to and convinced glossary drafted Lis- speaking with of redefinitions before that Liscom it, testified sign while Walker com. defendant and that glossary drafted The dis- it. Id. at 750. approved merely Third, he received defendant notes that if accordingly reasoned that trict court during the from home no calls Walker’s planned to commit had and Liscom Walker following preceding and Decem- two weeks “adopt[ed] the have perjury, Walker would plot- not have and therefore could ber conversa- incriminating version of the more language. relevant How- ted to redefine at 752. More- by Liscom.” Id. tion offered ever, talked with defendant could have merely quoted de- over, may Walker was at his office. Walker while Walker instead of legal opinion to Liscom fendant’s argument this also lacks merit. call, the conference bringing into defendant Finally, claims that a New causing to become “con- thereby Liscom recently state court held that Mexico fact, fused, thinking he into years after prosecution witnesses’ about on the tele- had talked [defendant] perjury and warrant- December 29 call was
phone.” Id.3 Because the relevant New ed reversal. claims that the dis- appeal, defendant On reported or other- opinions Mexico are not speculative and trict court’ scenarios court, we cannot tell wise available evidence, for four rea- unsupported by the correctly the state defendant has described sons. Accordingly, reject holding. we court’s (albeit argument prejudice to this without First, no reason- claims that most recent motion for a new expect could several fact-finder able court, alleg- district which trial before the to “believe that a government witnesses question). edly addresses this never oc- telephone conversation which Appel- place.” taken curred had sum, hold that the evidence disagree. As the district lant at 19. We supports the district presented at trial have told suggested, Walker could inference that court’s had endorsed the Liscom that defendant the December witnesses’ about *7 by glos- as modified certifications innocent er- 29 conference call constituted time, and, parties could over saries ror, perjury. rather than Because defen- that Liscom had have come to believe innocent dant does not contend that such defendant, merely spoken to instead fact trial, a new we hold that the error warrants authority by hearing used as an his name not abuse its discretion district court did Walker. denying for new trial based on the motion regarding the newly discovered evidence Second, argues that he could defendant call. December 29 conference glossary speak- drafted the before not have Liscom, he did not know ing to because b. have said about the what Liscom would If, assume, use of the testi defendant was plants. as we innocent rather operational mony, perjured, even if were not aware that term, knowing, negligent. reckless or dictionary of the than in the sense government finds that the known that Liscom When the court probably would have Thus, negligently used knowingly, recklessly or fact. would discover this office, addition, even if government speculates either Walker's home or his that its 3. In true, Moreover, actually testimony was witnesses’ Walker had been at a third location. defendant, they might they even if talked to telephone Walker called records reveal ”forgot[ten] exactly defendant and Thus, where the witnesses’ Kruzie from his home. they by were reached Walker were when phone." simply ir- opinions relevant, location are as to Walker’s Appellee 20-21. If Walker Brief for at argument government's and the night December had called defendant on the 29, merit. without presumably the call would have been billed
861 stringent testimony, argues the less new that testimony regard- the false only ing material, applies. That standard December 29 call was trial standard First, “any three reasons. defendant argues to show rea requires the defendant disagreement him between likelihood that the false sonable four “effectively witnesses judgment have affected the of the could him purposes made out as a liar for all jury.” Agurs, U.S. United States jury.” the minds of Appel- 2392, 2397, 97, 103, L.Ed.2d 342 96 S.Ct. above, lant at 11. As noted govern- (1976) {Agurs), cited in United States v. disagrees ment with defendant as to virtu- 667, 678, Bagley, 473 U.S. ally every relevant fact. the credibil- (1985) (Bagley). L.Ed.2d 481 In ity regarding conflict the December 29 con- contrast, government innocently when the just many, ference call is one of and the testimony, uses false the defendant must testimony regarding the conference call did acquittal probably establish that an Second, prejudice. cause substantial retrial. Begnaud, result on at defendant claims that the New Mexico 113-15. courts overturned his conviction based on Here, the district court found that the above, the evidence at issue. As noted government innocently used false testimo- alleged opinion New Mexico court’s is not III, ny. F.Supp. Tierney at 752 n. 6. reported and has not otherwise been made We have reviewed the record and deter- any way. available this court in Accord- finding clearly mined that this is not erro- ingly, reject argument with- neous. prejudice out to defendant’s recent motion 3, 1990, August for a new filed on c. Third, which addresses this issue. defen- addition, In we hold that even the dant that even the district court government negligently perjured used tes allegedly perjured admitted that the testi- timony, inappropriate. trial new would be mony dispositive. support of this Defendant admits that even where the theory, he cites two statements the dis- negligently knowingly has First, trict court. defendant notes that in perjured testimony, used a new trial is nec denying its order defendant’s motion for essary only if the “any defendant shows reconsideration, the district court found reasonable likelihoodthat the false testimo at issue increased the ny could have affected the of the acquittal chances of from to at least 10% jury,” Bagley, III, F.Supp. U.S. 105 S.Ct. at at 751. For 30%. 3382. We believe the “reasonable like- the reasons stated we believe the requirement wrong lihood” has not been met district court was the material- Second, ity testimony. defendant. Defendant notes that relevant regulations highly denying IRS are technical and relies on the district court’s order *8 he honestly judgment acquittal. claims that believed that the his motion for a of plants sufficiently “operation- interprets ethanol that order to mean qualify testimony regarding al” to for tax Brief the credits. See for that the December Thus, Appellant at 41-45. defendant’s al- 29 conference call “was so critical to the leged preparation glossary necessarily of the on De- must case that it diligent accepted by jury cember 29 is as consistent with a have been in order to (if attempt comply Reply Appellant with letter not the convict.” at 15. fact, spirit) of the tax laws as it is with a crimi- In the district court stated “[a] conspiracy against jury nal to evade those laws. It New Mexico has found [defen- logically dant], follows that the wit- and the in this case almost testimony partici- necessarily accepted that defendant nesses’ what seems be pated damaging against in the defen- December 29 conference call most evidence guilt innocence, was immaterial to his or dant. While the court is not a fact-finder it legalistic sleight perju- and that the must witnesses’ be observed ry unimportant. strongly participation on issue was indicates of a this of hand (such requests reimbursement Appeal on records as Designated Record
lawyer.”
vouchers) showing
expense
and
that Walk-
to mean
interpret this statement
628. We
all
er and Jackson did not visit Clovis at
accepted Lis-
district court
only that the
De-
during the month December 1982.
testimony, not that the district court
com’s
accordingly alleged in his motion
fendant
testimony
to the
to be crucial
such
believed
trial
that Jackson’s records
for a new
jury’s verdict.
demonstrably
probably
incorrect and
“were
sum,
newly
we hold that
witness,”
II,
slip
Tierney
falsified
regarding
Decem-
discovered evidence
op. at 1.
require
call does not
29 conference
ber
addressing
perju-
the issue of
Instead of
deny-
order
of the district court’s
reversal
ry,
applied
five-part
court
the district
for
ing
motions for a new trial and
his
generally applicable to a motion for
test
reconsideration,
(1) it is not clear
newly
new trial on the basis
discovered
(2)
under
perjury occurred and
even
test,
may
evidence. Under this
a motion
be
test,
the witnesses’
stringent Agurs
(1)
granted only if
the evidence is in fact
sufficiently materi-
alleged perjury was not
discovered, (2)
newly
the movant has
Accordingly,
require a
trial.
al to
new
(3)
diligence,
shown due
the new evidence
its
that the district court did not abuse
hold
“merely
impeaching,”
cumulative or
is not
the motion for a new
denying
discretion in
(4)
is material to
the new evidence
relevant
issue,
addressing
to this
without
trial as
issues,
(5)
retrial,
newly
“the
discov-
on
dispute
to whether
the factual
probably produce an
ered evidence would
government’s failure to uncover the wit-
(cita-
acquittal.” Begnaud,
there is of sense definition under a common plete in action to discover take government to “complete”, “in such as service” possess.” terms it does not which formation def- 963, complete under the technical they were Beaver, F.2d 966 524 v. States testimo- 905, the tax code. Jackson’s denied, initions of Cir.1975), 425 U.S. (5th cert. would have (1976). regarding the Clovis visits ny For 1498, 756 47 L.Ed.2d knew that the only that defendant proved instance, Frey, 801 F.2d in Reese v. under the com- complete not curiam) (Reese), a defen Cir.1986) (8th (per definition, therefore does sense arrest mon challenged his warrantless dant who “attempted tech- defendant’s file not contradict in the court warrant found an arrest Furthermore, compliance” theory. nical trial, the warrant argued after that he visited defendant concedes evidence which exculpatory constituted in and was aware prosecu plants earlier by the disclosed should have been complete. We therefore they were not if the defendant that even tor. We held warrant, probably have would for the hold prosecutor had asked the that defendant knew culpable not inferred conduct was prosecutor’s operational at the end of plants were not file in which the war “the court actually visit the even he did not readily available to found was rant was year. plants in December of attorney, and it can and his defendant] [the sup prosecutor hardly said that be sum, attack we hold that defendant’s its or failed to disclose pressed the warrant upon the Jackson and Walker Id. at 350. See also United existence.” regarding visits the December (8th Dunn, v. States satisfy Begnaud: fails to two elements (“the Cir.1988) government has no affirma discovering in the evi- delay defendant’s potentially excul obligation to discover tive excusable, and compellingly dence was not pos which it neither patory information probably produce not exclusion its aware”), citing of which it was sessed nor Accordingly, acquittal retrial. an on Chen, 754 F.2d United States not its the district court did abuse hold that (9th Cir.), denied, cert. denying in defendant’s motion discretion (1985). Based L.Ed.2d 701 S.Ct. issue, reach- for a new trial on this without cases, we hold that on Reese and similar ing merits of the district court’s hold- requested evi if the defendant has even newly discovered evi- ing that defendant’s govern government, the dence from the in not visit Decem- dence that did Clovis duty to affirmative disclose ment has no impeach- simply “was additional ber 1982 where, here, it is not aware of evidence ment,” II, slip op. at 3. evidence, readily and the evidence logically It accessible to the defendant. B. negligent failure that defendant’s follows defendant moved Before travel of Jackson’s to discover evidence indictment, on the quash the basis prosecution’s records is not excused financial inter prosecutor’s husband had a discover that evidence. failure to 208(a) 18 U.S.C. est the case. See that defendant’s Accordingly, we hold employee may participate (government records arose discover the travel failure to spouse a financial in which has matter negligence. defen- out of his own interest); (prohibiting 45.734-4 28 C.F.R. § diligence” “due not satisfied the dant has Department employee partici from Justice Begnaud. requirement of pating prosecution if he or she has a anyone “a personal relationship with with demonstrated Even if defendant had interest that would specific and substantial that admission of diligence, due we doubt directly affected the outcome probably produce be records would the travel Fed. investigation prosecution”); retrial, acquittal given the nature an 6(d). prosecutor’s husband R.Crim.P. theory the case. As noted *11 865 Cir.1989) (Dick) (citations omitted) (noting representing in a law firm partner awas disqual- financial interest that would insurer, has that a and the insurer defendant’s may remote and ify judge a be “too insub- declaratory for a defendant sued prosecutor). disqualify to liability insurance stantial” rescinding defendant’s Although prosecutor’s husband policy. however, argues, Defendant case, in the defendant participate not did demanding relatively under the stan even defen- that because reasons nevertheless by Young and similar dard established dishonesty might bar recov- alleged dant’s cases, had a prosecutor’s husband sub the insurer policy, insurance ery under the guilty financial interest in a ver stantial from a firm benefit its law would support theory, In this defendant dict. agreed The district guilty verdict. partners in firm argues that even a which benefit, found but the insurer in clients the hour have an interest bills firm was the husband’s law that because suit, winning reputa a the firm’s because basis, hourly it would not benefit paid on a (and income) partner’s each bene tion thus verdict, and the husband’s guilty a from Although partners victory. fits from such firm was there- partner a in the interest as may prevailing, have an interest in we be impli- to speculative” fore too “remote simply interest too insub lieve that this Department either 208 or Justice cate § require disqualification of a stantial in court noted regulations. The district litigation.5 in Ac partner’s spouse related however, “a differ- passing, somewhat cordingly, we endorse the district court’s judge if a applied be ent standard would quash. of defendant’s motion to denial partner relative who was a spouse had a engaged litigation before in a law firm I, 4 n. 1 judge.” Tierney slip op. at C. omitted). (citations argues next that his convic- relies on numerous appeal, defendant On evidence, supported by the tion was not disquali holding judge that a should cases carry government failed to its she has a or herself he or fy himself proving that he was motivated burden of partner is a a law spouse or relative who intent, rather than an honest by criminal judge. engaged litigation before firm misinterpretation the tax code. re- City v. Port Construction See Potashnick (1) expert government relies on sponse, the (Potashnick), Cir.) Co., (5th 1101 609 F.2d interpreta- attacking denied, 78, cert. 101 S.Ct. 66 U.S. code, (2) testimony that of the tax tion Services, Inc. v. A (1980); SC L.Ed.2d pay Skelley a urged Walker to Cir.1977) (SCA). (7th
Morgan,
866
Second,
argues
that the
1.
plants
“placed
by
were in fact
in service”
1.46-3(d),
plants
the ethanol
Under §
1982,
though they
the end of
because even
eligible
they
were not
for tax credits unless
fully complete they
capable
were not
were
by
“placed
had been
in service”
the end of
producing
by
of
some ethanol
the end of
1.46-3(d)(2)
1982. 26 C.F.R.
defines
§
reject
interpretation
1982. We
defendant’s
“placed in service” as “in a
condition
3(d). In
opinion, property
of
our
is
§ 1.46—
availability
state of readiness and
for a
in
availability
a “state of readiness and
for
specifically assigned function”.
specifically assigned
only
a
function”
if it
government argues
productive
fairly
that defendant
on a
consistent basis.
Mitchell,
434,
In
reasonably
could not have
believed that the See
re
109 B.R.
438
(electrical
(Bkrtcy.W.D.Wash.1989)
plant
plants
“placed
by
in
were
service”
the end
“placed in
1982,
gone
not
service” unless it
plants
“has
ready
of
because the
were not
ordinary daily operation.”),
into
affd, 1990
produce
by
to
ethanol
the end of 1982. In
(W.D.Wash.
31, 1990).
Aug.
WL 142016
conclusion,
support
government
of this
the
instance,
buys
For
if a consumer
an auto
testimony
relies on the
of David Buchmuel-
mobile, that automobile is not in a “state of
ler,
group manager specializing
an IRS
in
if it
only
readiness”
can be driven at
10
regulations relating
shelters,
to tax
who
only
miles an hour for
3 miles at a time.
plants
“placed
stated that the
were not
by
We believe
the end of
that
1982
the
ready
produce
by
service” or
ethanol
plants
ethanol
“ready”
were no more
than
Similarly,
end of
Wright
1982.
testified
hypothetical automobile,
was our
based on
service,”
“placed in
plants
that to be
Skelley’s testimony
parts
that various
had to be “in the state of readiness so that
which needed
up”
to be “hooked
for etha
could,
effect,
you
up
they
start them and
produced
nol to be
up”
were not “hooked
produce
Appel-
ethanol.” Brief for
by
Appel
December
Addendum to
government
lee at 42. The
also relied on
14-15,
lant’s Brief at
testimony
Sinks’s
testimony by Skelley
Sinks,
who al-
produce
could
ethanol but
“in
not
leged
plants
that the
were
capable
any appreciable amount”,
at
id.
producing ethanol at the end of 1982. Fi-
testimony
only
Liscom’s
couple
nally,
government
relies on defendant’s
gallons
produc
of ethanol could have been
plants
own
“placed
that the
were
ed.
Id. at 24.
we hold that defen
only
they
“capable
service”
were
interpretation
dant’s
of the tax code was
producing ethanol.” Brief
Appellee
incorrect, and indeed was
egregiously
so
wrong
jury
reasonably
could
inferred criminal intent.
response,
defendant makes
First,
arguments.
three
defendant notes
Third,
that where the
Wright (the
that Buchmueller and
only
interpretation
ambiguous
of an
government witnesses familiar with tax
regulation
issue,
is at
has
law)
plants
had never seen the
and that the
proving
the burden of
that defendant’s ac
other
witnesses did not have
tions were
by something
“motivated
other
expertise
sufficient tax
judge
whether
than misunderstanding, honest
inadvert
plants
“placed
were
in service” as de
ence,
Reply
or mistake.”
Appel
1.46-3(d).
fined
Admittedly, the testi
lant at 20. See United States v. Steinhil
mony
group
of either
of witnesses alone ber,
(8th Cir.1973)(where
484 F.2d
might
particularly
not be
useful. How defendant
willfully
is accused of
misinter
ever, we hold
could have preting ambiguous language, government
ascertained whether
has
negating
burden of
the defendant’s
“placed
in service”
combining the non-
error) (citation
claim
omitted);
of honest
expert witnesses’ factual testimony regard
States,
Johnson v. United
ing
plants’
capabilities with
expert
(8th Cir.)
(“it
upon
is incumbent
witnesses’
applying the law to
negative
Government
any
reasonable in
such
testimony.
factual
terpretation that would make the defen-
trying
correct.”),
merely
he
to make Walker
factually
citing
statement
dant’s
agreement
Skelley. De-
up
live
to his
with
F.2d
Diogo, 320
States
urge
claims
did not
fendant further
denied,
Cir.1963),
(2d
cert.
bonus,
merely
pay the
but
“ad-
Walker to
(1969). As noted
63, 24 L.Ed.2d
S.Ct.
not the time or
vised him that that was
lan
hold,
plain
based
*13
getting
place for him to be
into a discussion
testimony re
3(d)
on
and
of
guage
§ 1.46—
Skelly
plants
as to
the
with
whether
plants
[sic]
the ethanol
of
the condition
garding
Ap-
Brief for
fully complete”, Reply
were
jury
a reasonable
that
in December
Finally,
claims
pellant
16.
at
misstate
defendant’s
that
have found
could
until the
pay
did not
the bonus
that Walker
words,
In other
were willful.
ments of fact
ethanol,
begun
produce
to
plants had
sug
conspired to
if defendant
hold that
we
had no role
therefore
that defendant
requirements,
IRS
plants
the
met
gest that
paid.
be
directing that the bonus
support
the
to
evidence exists
sufficient
con
claim that defendant
government’s
key
purposes
appeal,
of this
the
For the
tax fraud.
spired to commit
said to
question is what defendant
Walker.
merely
that the issue of
If he
told Walker
however,
if
that
argues,
even
Defendant
at another
completion should be addressed
par-
did
1.46-3(d) unambiguous, he
not
§
time,
Skelley
between
confrontation
the
Thus,
it.
conspiracy
to violate
ticipate
a
obviously irrelevant to de-
and Walker is
government’s
the
go on to address
we must
the other
guilt
fendant’s
or innocence. On
conspiracy.
of
evidence
hand,
terms of the
(regardless
of the
agreement) defendant
Walker that
told
2.
plant
incomplete, Walker
even if
was
the
initially
relies
The
fact,
acknowledge
jury
the
this
should not
Skelley’s completion
regarding
he con-
reasonably have found that
could
government, Mid
According to the
bonus.
spired
other
Titan
with
Midwestern
$40,000
Skelley
to
a
agreed
pay
western
falsely represent that the
officials to
capa
plants
the
were
“completion bonus” if
“placed in service.”
was
by the
of
end
producing
of
ethanol
ble
admits, Skelley’s testimony
As defendant
1983, Skelley approached
January
1982. In
the
version of
corroborates
requested
airport and
in the Clovis
Walker
at
Appellant
16.
Reply
facts.
Brief of
the
bonus,
$40,000 completion
of a
payment
Proceedings at 1174
Transcript of
also
telling the public
had been
Walker
because
Thus,
hold that a rea-
(“Transcript”).
al
complete. Walker
plants were
the
that defen-
jury could have found
sonable
pay Skelley,
the
because
legedly refused
even
pay
the bonus
urged Walker
dant
then
complete.
not
Defendant
plants were
complete at the
though
plants were not
the
to make such
told Walker never
allegedly
conversation.
time
the
statements,
they
publicly
not
could
if he tried to
in
that even
plants
the
were
position that
Defendant
the
take
bonus,
completion
his
thereafter, Skelley
help Skelley get the
Shortly
was
complete.
paid
bonus be
$40,000
in
recommendation
on defendant’s
paid
allegedly
had actu-
plants
not
until the
interprets was
followed
The
structions.
amount of etha-
ally produced a substantial
knew
mean that defendant
facts to
these
However,
at
Skelley
trial
admitted
complete,
nol.
but
plants were
shortly before
paid the bonus
a
that he
payment of
was
directed
nevertheless
Transcript at
began,
production
mislead the
completion bonus to
IRS
in-
reasonably have
Thus,
could
jury
public.
general
paid due to
the bonus
ferred that
Skelley’s agree-
Defendant claims
that defendant
influence and
Midwestern,
by an
as amended
with
ment
a member of
influence
be
had
sufficient
provided that
agreement,
bonus
oral
among
staff.
Midwestern’s
conspiracy
produced
plants
payable
be
when
was a
finding that defendant
jury’s
ethanol,
production
regardless of when
supported
also
conspiracy is
member
defendant contends
achieved.
provide
defendant dis-
less
relevant
subsections of the
Walker’s
regulation
jury.
disclosing
to the
couraged him from
Titan’s fail-
complete
plants.
Walker testi-
ure to
prejudiced
Defendant claims that he was
partners in
that he wanted to tell the
fied
partial
“placed
because the
definition of
plants that
the ethanol
supplied by
might
service”
the court
However,
incomplete.
told
jury,
confused the
and that
the district
“would
Walker that such disclosure
be
duty
charge
court therefore violated its
“to
do,”
dangerous thing to
Tran-
stupid and
law,
questions
on all essential
script at 289.
not,”
requested
Appel
whether
(citations omitted).
lant at 47
As noted
does not address this testimo-
1.46-3(d)
all relevant
portions
all,
ny
merely attacks other testimo-
but
*14
given
jury.
to the
the district
ny by
regarding the difference
Walker
be-
duty
jury
court fulfilled its
to instruct
warranty
tween
and construction costs.
law,
jury
about relevant
and the
could not
See
Reply
Appellant
Brief
at 18. Walk-
for
accordingly
have been confused. We
hold
highly persuasive,
er’s
and
was
prejudiced by
that defendant was not
convic-
we therefore hold
defendant’s
district court’s failure to
all
submit
of
supported by
tion was
sufficient evidence.
1.46-3(d)
See Caldwell v.
jury.
to the
§
We therefore need
address the rele-
States,
(8th
Cir.
Wright’s testimony
of
vance
about defen-
1964)
error,
(“[i]t is not
but sometimes bet
complicity,
alleged
dant’s
or of defendant’s
part
practice,
ter
to read all or
of a crimi
attempts
classify warranty
work as con-
instructing
nal statute when
jury”),
struction work.
denied,
cert.
380 U.S.
(1965) (emphasis added).
L.Ed.2d 277
D.
trial,
1.46-3(d)
At
was submitted
E.
§
jury
to the
as an
The district
exhibit.
court
Finally,
argues
the dis-
give
complete regulation
did not
to the
trict court should have declared a mistrial
jury,
only gave
jury
but
subsections
sponte,
sua
jurors
because some of the
(d)(1)
(d)(3)
through
regulation,
of the
slept
magazines during
and read
the trial
two and a half sentences of subsection
among
and discussed the case
themselves.
(d)(4)(i).
object
Defendant did not
to the
response,
contends that
exhibit,
introduction of the
but raised the
defendant should have moved for a mistrial
jury
again
issue while the
deliberated and
at
preju-
and that defendant was not
acquittal.
his motion for
of
jury’s
diced
inattentiveness.
motion,
The district court denied the
be
primarily
Defendant
relies
on an
(1)
cause
counsel for defendant should have
explaining
annotation
may
that a mistrial
regulation
noticed this error as soon as the
appropriate where,
here, jurors
be
introduced,
defendant suffered
trial. See
slept during
Annotation,
Inat
prejudice
no
as a result of the district
Sleepiness
tention
Juror
or Other
of
from
alleged
court’s
error.
Cause as Ground
Reversal or New
appeal,
On
defendant attacks both con- Trial,
(1963). However,
themselves and intra- jury pressures “normal
held that *15 grounds no
jury influences ... constitute overturning a verdict.” Government Gereau, F.2d v. Virgin Islands omitted), (3d Cir.1975) (citations cert.
denied, (1976). “intra-jury influ
L.Ed.2d 323 Such (as “extraneous influ opposed to ences” WHATLEY, Appellant, Donald G. ences”) discussions include “evidence of Accordingly, at 150. we among jurors,” id. jurors discussed the if the hold that even MORRISON, Michael Paul J. themselves, among the district case Groose, Appellees. declare a mistrial. required No. 91-3165. sum, that the evidence we hold in this case and misconduct
inattention Appeals, States Court require reversal. does not Eighth Circuit. III. 9, 1991. Submitted Oct. above, we stated For the reasons 25, 1991. Decided Oct. and affirm claims reject all of defendant’s court. of the district stay of temporary remand and motion for moot; is denied as appellate proceedings any merits of opinion on the express no in district pending motions now
of the
court. Judge,
STUART, District Senior
concurring. opinion majority
I in all concur 11(A)(1)(c).
except Part testimony of the agree that
I cannot testified who four witnesses in a Decem- participated
that the defendant his immaterial to call
ber 29 conference