548 F.2d 599 (5th Cir. 1977), 76-1435, United States v. Murdock

Docket Nº:76-1435
Citation:548 F.2d 599
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Church E. MURDOCK, Jr., Defendant-Appellant.
Case Date:March 11, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 599

548 F.2d 599 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Church E. MURDOCK, Jr., Defendant-Appellant.

No. 76-1435


United States Court of Appeals, Fifth Circuit

March 11, 1977

Church E. Murdock, Jr., pro se.

Wayman G. Sherrer, U. S. Atty., Melton L. Alexander, Asst. U. S. Atty., Birmingham, Ala., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Chief

Page 600

Appellate Sect., Robert E. Lindsay, Atty., Wynette J. Hewett, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Dr. Church E. Murdock appeals his conviction for willfully failing to file federal income tax returns for three years. The sole issue presented by Murdock's brief is this: "whether the trial judge erred by withholding documents from defendant in evidentiary hearing which could have sustained his motion to quash indictment on grounds of selective and discriminatory prosecution." Finding no error in the rulings of the trial judge, we affirm.

Defendant admittedly refused to file income tax returns although he had a gross income in excess of $23,000 for each of the three years in question. He filed a motion to quash the indictment for such refusal, however, on the ground that he had been singled out for selective and discriminatory prosecution for "asserting his First Amendment Religio/Political Freedoms to be a Protestant or Protestor." Defendant contends that his refusal to file a return is a form of protest based on religious convictions and that he was singled out for selective prosecution for exercising the rights and freedoms afforded him by the First Amendment.

In connection with the motion to quash the indictment and the hearing on the motion, Murdock requested discovery of numerous Government documents. The Government produced some of the documents, agreed to an in camera inspection of others, and was relieved from producing some information by court order. After an in camera inspection, the court allowed defendant to see some of the material but denied him access to certain documents.

The Federal Rules of Criminal Procedure govern this case. Rule 16(a)(1)(C) provides that discovery of documents in possession of the Government will be allowed the defendant if they are "material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." The kind of documents discoverable are generally those that relate to the defendant and the charge against him, not to third persons.

To avoid the use of a discriminatory prosecution defense as a means of obtaining information to which the defendant is otherwise not entitled, other circuits have held that a defendant must prove a "colorable entitlement" to the defense before discovery is allowed. United States v. Oaks, 508 F.2d 1403 (9th Cir. 1974), aff'd following remand, 527 F.2d 937 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973). This appears to be a sound rule for this Court to follow. To hold otherwise would encourage the assertion of such defense, no matter how spurious, as a...

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