United States v. Elmore

• Decision Date: 16 March 1970
• Docket Number: No. 13067.,13067.
• Citation: 423 F.2d 775
• Parties: UNITED STATES of America, Appellee, v. Clarence C. ELMORE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

423 F.2d 775 (1970)

UNITED STATES of America, Appellee, v. Clarence C. ELMORE, Appellant.

No. 13067.

United States Court of Appeals, Fourth Circuit.

Argued December 3, 1969.

Decided March 16, 1970.

As Modified on Denial of Rehearing April 29, 1970.

COPYRIGHT MATERIAL OMITTED

Robert G. Perry, Charleston, W. Va. (Owen Griffith and Walter Burton, Princeton, W. Va., on the brief), for appellant.

John M. Brant, Atty., Dept. of Justice (Johnnie M. Walters, Asst. Atty. Gen., Joseph M. Howard, Atty., Dept. of Justice, and Wade H. Ballard, III, U. S. Atty., on the brief), for appellee.

Before WINTER and CRAVEN, Circuit Judges, and HARVEY, District Judge.

WINTER, Circuit Judge:

Clarence C. Elmore has appealed from the judgment entered on his conviction for violation of 26 U.S.C.A. § 7201. He was indicted in two counts of wilfully attempting to evade federal income taxes by filing false and fraudulent returns which understated his taxable income and consequent tax liability for the years 1962 and 1963. The jury acquitted as to 1962, but returned a verdict of guilty on the 1963 count. We affirm.

Elmore's assigned errors and the context in which they arose are set forth below.

I

At trial the government employed the net worth plus nondeductible expenses method in order to establish its case. As a part of this process evidence of Elmore's reported and corrected taxable income and expenditures during 1962 and 1963 was introduced. He claims that two items of evidence were improperly admitted against him.

The first was a notebook which the government subpoenaed from a woman who had been Elmore's receptionist in 1962-1963. The notebook contained data relating to his travel expenses. Elmore claimed that the notebook was his personal property and moved to suppress. At the hearing on the motion the district judge indicated that he would "probably" admit the evidence if and when it was offered, but he apparently made no formal ruling on the matter at that time. When the government subsequently offered the notebook at trial, however, defense counsel stated that he had no objection to its admission.

We think that under these circumstances the affirmative statement that defendant did not object constituted a conscious and knowing relinquishment of any right to have the notebook suppressed. Lawn v. United States, 355 U.S. 339, 353-355, 78 S.Ct. 311, 2 L.Ed. 2d 321 (1958); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). But in any event, despite some self-contradiction, the receptionist's testimony taken as a whole makes it clear that the records in the notebook were compiled on her own initiative to assist her in the performance of her own duties. Therefore, we conclude that the records were not Elmore's private books and that their compulsory production did not violate any constitutional stricture.¹ Cf., Boyd v. United States, 116 U.S. 616, 634-635, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

The government also introduced a document in which Elmore's son-in-law, Patrick West, had recorded mortgage payments which Elmore had made to West.² The district court admitted the document on the theory that it was characterized by sufficient "guarantees of trustworthiness" to take it out of the hearsay rule. This conclusion appears to have been rested on two grounds: (1) the federal business records statute, 28 U.S.C.A. § 1732, and (2) the exception to the hearsay rule for declarations against interest.³

We need not decide whether or not this document would be admissible under § 1732, for we have concluded that it constitutes a declaration against West's pecuniary interest. The document is a declaration by West that the debt which Elmore owed him had been reduced by the amount of the recorded payments. The requirement that the declarent be unavailable to testify is satisfied by the fact that West successfully asserted his fifth amendment privilege against self-incrimination and declined to answer any questions about the matter. McCormick, Law of Evidence (1954 ed.) § 257, at 554 n. 11. Finally, on cross-examination Elmore himself identified the document and admitted all of the payments which it disclosed.

II

Elmore also claims that the government violated the principle enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing, upon request, to disclose material evidence favorable to the accused.

At trial the government attempted to prove that Elmore had received unreported taxable income from bribes which he accepted as commissioner of the West Virginia Alcohol Beverage Control Commission. The government called as a witness a certain Brawley, who had been employed during 1963 by a distilling company. Brawley testified that he and his superior, a man named Manning, paid Elmore a $500 bribe in 1963 to secure the privilege of having their brand of liquor sold in the West Virginia state liquor stores. According to Brawley, Manning obtained the $500 from the company but the source within the company was not disclosed.

Brawley was then permitted to testify to a similar bribe in 1964. At that time a check for $500 had been made out by the president of the company, John Turner, and made payable to Manning. Brawley did not say why Turner sent this check to Manning, but he did testify that on the latter's orders he cashed the check and arranged for the proceeds to be delivered to Elmore in return for a continuation of the privilege of doing business in the state liquor stores.

Brawley was apparently a surprise witness, and we assume that prior to his appearance on the stand the defense had no reason to expect that Manning and Turner were in any way relevant to the case. During the four days which followed Brawley's testimony, defense counsel attempted to find, interview, and subpoena Manning and Turner. Manning was located, and the defense expected to present him as a witness, but for reasons which do not appear in the record he never took the stand.

Turner could not be located, however. Counsel then repeated an unsuccessful pretrial motion for the production and disclosure of any exculpatory statements made by Turner.⁴ The government responded by disclosing a pretrial statement made by Turner to an Internal Revenue Service agent. In this statement Turner claimed that he had intended the 1964 check to be used as a political contribution to the Democratic Party, of which Elmore was an official. He also denied that bribery was his purpose.⁵ Defense counsel then moved for a directed verdict or a mistrial on the ground that the government's belated disclosure violated Brady.⁶ We think the district court's denial of the motion was correct.

In Brady the Supreme Court held that the prosecutor has a duty, upon request, to disclose material evidence favorable to the accused. On two occasions we have applied this doctrine. Hamric v. Bailey, 386 F.2d 390, 392-393 (4 Cir. 1967); Barbee v. Warden, 331 F.2d 842, 847 (4 Cir. 1964). See also United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2 Cir. 1964). In all three of these cases, however, the government did not disclose exculpatory information in its possession either before or during trial. In each the information suppressed was unquestionably exculpatory; here its excusatory effect was more questionable.

In Hamric we held that "disclosure to be effective must be made at a time when the disclosure would be of value to the accused." 386 F.2d at 393. E. g., United States v. Gleason, 265 F.Supp. 880, 885 (S.D.N.Y. 1967). Manifestly, a more lenient disclosure burden on the government would drain Brady of all vitality. Against the background of this holding, Elmore claims that disclosure here was of no value to him because it came so late in the trial that he was unable through due diligence to secure Turner's presence. Turner's relevance was first disclosed in Brawley's testimony on September 16, 1968. The defense opened its case on September 19. The trial ended on September 25. During the interim the court recessed for two full days and for most of a third. Even if we assume, however, that this time was insufficient for reasonable efforts to be successful, we note that defense counsel did not request a continuance for whatever further time might have been necessary.

Furthermore, under these circumstances we think that at the most the government should have only been required under Brady to disclose Turner's statement after Brawley had testified. If the statement had been produced in response to Elmore's pretrial motion for disclosure, there was a substantial probability that Brawley would have been suspected as a surprise hostile witness.⁷ This would have created a possibility of intimidation of Brawley. In this case the government's concern to protect its case from such influences was justifiable. At a pretrial hearing evidence was introduced that in a previous case Elmore had attempted to intimidate government witnesses and agents. Although the district court did not expressly rely on this evidence in denying Elmore's pretrial motion, we are not precluded from resting upon it, especially when the defendant does not question its accuracy. Cf., McCormick, Law of Evidence (1954 ed.) § 52, at 118 n. 26.

The government should have promptly disclosed the statement as soon as Brawley was called as a witness. At that point there was no further justification for withholding it, and we do not think that the government should be allowed to await a repeat request. Cf., Fed.R. Crim.P. 16(g). Nevertheless, the unjustifiable delay of which the government was guilty in this case did not prejudice the defendant, for Turner's relevance was disclosed by Brawley's testimony, Elmore's efforts were promptly undertaken to secure Turner's appearance, and the statement was produced well before the end of the trial. Fed.R. Crim.P. 52(a); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Finally, aside from the risk that if produced...