Lyons v. United States

• Decision Date: 02 January 1964
• Docket Number: No. 18424.,18424.
• Citation: 325 F.2d 370
• Parties: Lowell LYONS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

325 F.2d 370 (1963)

Lowell LYONS, Appellant, v. UNITED STATES of America, Appellee.

No. 18424.

United States Court of Appeals Ninth Circuit.

November 20, 1963.

Rehearing Denied January 2, 1964.

COPYRIGHT MATERIAL OMITTED

Lowell Lyons, Artesia, Cal., in pro. per. for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section; and John A. Mitchell, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY and BROWNING, Circuit Judges, and MacBRIDE, District Judge.

MacBRIDE, District Judge.

Appellant was convicted, under 18 U. S.C. §§ 1001 and 2, of knowingly and wilfully causing materially false statements to be made to the Bankruptcy Court, a government agency.

The indictment charged: Appellant caused Raymond Steven Milcherska, a petitioner in bankruptcy, to state, in a petition submitted by him to the Bankruptcy Court, "No money has been paid by petitioner (Milcherska) or any other person on his behalf to an attorney at law for any services in connection with the proceedings in bankruptcy." Appellant also caused Milcherska to include the following statement in a pleading entitled "Debtor's Petitioner — Schedule B-4 — Attorney's Fee," which also was submitted by him to the Bankruptcy Court: "Sum or sums paid to counsel, and to whom, for filing fees or costs and for services rendered in this bankruptcy — NONE." Appellant caused Glenn Scott Watkins, also a petitioner in bankruptcy, to make substantially the same statements to the Bankruptcy Court. The statements made by Milcherska and Watkins were false, and appellant knew them to be false.

In attacking the conviction on this appeal, appellant raises several points. These will be dealt with separately below.

1. Appellant seeks to assign as error portions of the trial court's charge to the jury and the omission therefrom of appellant's requested instructions.

The record shows that appellant had ample opportunity to object to the charge before the jury retired, but did not do so. Before giving the charge, the judge stated to the attorneys:¹

"* * * I will instruct the jury. Of course, you are mindful of the provisions of Rule 30, both of them. If either side has any objection to any of the instructions given — I will turn to you both, after I have finished the instructions, and ask if either of you have anything you wish to take up before the jury retires, and if either of you indicate you have, then I will excuse the jury and hear you.

"Otherwise, if you say you are both satisfied to have the case submitted, I will go ahead and submit it to the jury. * * *"

Subsequently, this exchange took place between the judge and appellant's attorney, Mr. Arthur:²

"Mr. Arthur: * * * I would like to ask the court if the court has considered giving the defendant\'s instructions. * * *

"The Court: They were just brought in to me * * * I won\'t give them in that form, but I suspect that you will find the substance of them. If you wish to make any objection to the failure to instruct, of course, you will do that after I complete the instruction.

"Mr. Arthur: Yes, Your Honor."

After the charge had been given, but before the jury retired, the following occurred:³

"(The Court:) Now, are there any matters which counsel for the Government wishes to take up before the jury retires?

"Mr. Murphy: The Government has no matter to take up with the court.

"Mr. Arthur: The defense has no matter to take up with the court.

"The Court: Are you both satisfied, gentlemen, to have the matter submitted now?

"Mr. Arthur: Yes, sir.

"Mr. Murphy: Yes, sir."

Rule 30 of the Federal Rules of Criminal Procedure provides that "(n)o party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The policies underlying this rule were explained as follows in Herzog v. United States, 226 F.2d 561, 570 (9th Cir. 1955), aff'd 235 F.2d 664 (9th Cir. 1956):

"Every experienced member of the Bench and Bar knows that there are counselors who are very adept at sowing error in the record to provide an `ace in the hole\' for reversal on appeal in the event of an adverse verdict of the jury. The trial judge does not have an opportunity to scrutinize the proposed jury instructions at his leisure. Ordinarily the trial is delayed and the jury remains at recess while the judge settles the instructions with counsel after each party has submitted several dozen instructions. The attention of the court is engaged in the consideration of those instructions which are questioned by counsel with time for only a cursory examination of the instructions which are agreed upon by both parties. This would be a very fertile field for sowing error if a defendant were permitted to assign as error a charge in which he acquiesced. Rule 30 is designed to impede such tactics * * *."

These policies have particular pertinence in a case such as this, where the judge specifically directed the attention of the attorneys to Rule 30.⁴

It is true that Rule 30 is subject to an exception, based on Rule 52(b) of the Federal Rules of Criminal Procedure, which allows an appellate court to notice "plain errors or defects affecting substantial rights," even though they were not properly brought to the attention of the trial court. Herzog v. United States, 235 F.2d 664 (9th Cir. 1956) (on rehearing), original opinion 226 F.2d 561 (9th Cir. 1955). United States v. Balodimas, 177 F.2d 485 (7th Cir. 1949). Madsen v. United States, 165 F.2d 507 (10th Cir. 1947). However, as was stated in Herzog v. United States, supra, 667 (on rehearing):

"This court has not gone overboard in its application of Rule 52 (b) to situations such as here presented, and it does not propose to do so now. In the great bulk of the cases in which counsel have sought to have us consider claims of error in instructions not objected to at the trial we have declined to do so. More than once we have stressed the salutary nature of Rule 30 and the vitally important part it plays in the administration of justice. Thus in Enriquez v. United States, 9 Cir., 188 F.2d 313, at page 316, we remarked that Rule 30 `is not designed as a mere trap for the unwary. Painstaking compliance with its requirements, although not an easy matter for the lawyer, is of the very essence of the orderly administration of criminal justice.\' But, in common with the generality of the circuits, we recognize that the Rule does not debar us from noticing of our own motion error in instructions thought to have resulted in a miscarriage of justice."

Having examined the charge given in this case, we can state, for the most part without discussion, that no plain error or defect affecting substantial rights appears therein.

There is, however, one portion of the charge which deserves special consideration on this appeal. During the charge, the trial court stated:⁵

"Now, as I told you yesterday, I believe that the defendant says that he was admitted to the bar of California and later suspended from practicing, so I instruct you that he is an attorney at law within the meaning of this section and within the meaning of the term as it is used in the forms which are set forth in the indictment." (Emphasis added.)

Did the inclusion of this instruction in the charge constitute plain, reversible error?

Clearly the instruction assumed an important fact material to appellant's conviction. Appellant was charged with knowingly and wilfully causing materially false statements to be made to the Bankruptcy Court. To prove the offense charged, the Government had to establish, first of all, that the statements which appellant allegedly caused to be made were false. As has been indicated above, the indictment charged that appellant caused Raymond Steven Milcherska and Glenn Scott Watkins, two petitioners in bankruptcy, to state that they had paid no money to an attorney at law in connection with the proceedings in bankruptcy. Milcherska and Watkins testified, and the testimony is not disputed, that they paid money to appellant for the preparation of petitions and schedules in connection with the bankruptcy proceedings referred to in the indictment. Thus, if appellant was an attorney at law at the times he was paid the money, the statements in question were false. Consequently, whether appellant was an attorney at law at such times was an important question bearing on the element of falsity.⁶

During most of the trial, there was uncertainty concerning this question. Appellant testified that he was admitted to the practice of law in California "about ten years ago."⁷ He further testified that subsequently, but prior to the times here relevant, he was convicted of a felony and the conviction was affirmed by the California Supreme Court. If, as a result of the conviction, appellant was disbarred, he was not an attorney at law at the times in question. California Business and Professions Code § 6117. On the other hand, if he was merely suspended, he was still an attorney at law, though he could not legally practice until the expiration of the period of suspension. Friday v. State Bar of California, 23 Cal.2d 501, 144 P.2d 564 (1953). Appellant expressed uncertainty as to the effect of the felony conviction on his professional status;⁸ and his testimony on this point was not free from doubt.⁹

Nevertheless, in response to the trial court's question, "You are not disbarred, are you?", appellant did specifically state, "No, I am not disbarred. I am suspended from practice."¹⁰ Furthermore, careful examination of the record reveals that though the question of appellant's professional status was unsettled during most of the trial, by the time the jury was charged, it was admitted that appellant was merely suspended at the times here relevant, and the question was no longer in controversy. We note that before charging...