U.S. v. Taylor, s. 78-2512

Citation648 F.2d 565
Decision Date17 June 1981
Docket NumberNos. 78-2512,79-1240,s. 78-2512
Parties7 Fed. R. Evid. Serv. 1850 UNITED STATES of America, Plaintiff-Appellee, v. Richard E. TAYLOR, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Peter Shenas, Shenas, Robbins, Shenas & Shaw, San Diego, Cal., for defendant-appellant.

Bruce J. Kelton, Sp. Atty., U. S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California.

Before ELY and WALLACE, Circuit Judges, and TAKASUGI, * District Judge.

ELY, Circuit Judge:

The subject causes have been consolidated on appeal. Because the cases involve a single defendant and arise from the same criminal proceeding, the facts of each cause are discussed together. The legal issues, however, are distinct and require separate resolution.

FACTS

Richard E. Taylor appeals from his conviction of wire fraud in violation of 18 U.S.C. § 1343 (1976) (No. 78-2512) and an order of the District Court denying his motion for a writ of error coram nobis (No. 79-1240).

Taylor and Dennis B. Wittman were jointly indicted for their part in the assertedly fraudulent acquisition of a substantial loan from the Continental Bank of Texas ("Continental"), in Houston, Texas. During the period of time covered by the indictment, late 1974 to early 1975, Taylor was a vice-president of the real estate department of Home Federal Savings and Loan Association ("Home Federal"), located in San Diego, California. The fraudulent "scheme or artifice" alleged by the Government was that Taylor and Wittman, who was a principal in several San Diego real estate development entities, had induced Continental to make a $1.97 million loan to a corporation run by Wittman, on the basis of their false representations of several material facts. In a January 16, 1975 letter signed by Taylor and containing an initialed postscript, Taylor and Wittman blatantly misrepresented to Continental that Home Federal held a first lien on certain California real property. This letter was telecopied from San Diego to Houston, where Wittman received it, photocopied it, and delivered the photocopy to a loan officer of Continental. The photocopy tendered to Continental, which was the copy of the letter Continental relied on in approving the loan, was admitted into evidence at Taylor's trial as Government Exhibit "24." On January 23, 1975, Taylor signed a letter agreement with Continental purporting to confirm Home Federal's first lien commitment. 1 After Taylor signed the letter agreement, without authorization, in his capacity as an officer of Home Federal, Continental funded the $1.97 million loan.

In July 1975, Wittman's corporation defaulted on the loan. Taylor and Wittman were indicted in June 1977; the Government's motion for severance was granted on January 16, 1978. Taylor's trial commenced on March 14, 1978.

An issue at trial critical to the jurisdictional element of the crime charged 2 was whether Taylor had already signed the fraudulent letter dated January 16, 1975 (the predecessor of Exhibit "24") when it was telecopied from California to Texas, or whether Taylor had signed it after its transmission to Texas. Neither the "original" nor the telecopy was ever produced at trial. Instead, the Government introduced Exhibit "24," which was either a photocopy of the telecopy or a more remote reproduction. 3 While Exhibit "24" did reflect Taylor's signature, it was never conclusively established that the exhibit was a direct copy of the telecopy, leaving open the possibility that the signature was not affixed prior to interstate communication. Taylor's counsel at trial objected to the admission of this potentially spurious document on the basis of the "best evidence rule." The trial court ultimately admitted Exhibit "24" as secondary evidence, relying on the Government's claim that the original document had been unsuccessfully subpoenaed from the relevant parties, i. e., Continental, Home Federal, and Wittman's corporation. 4

In the course of the District Court's probe of the prosecuting attorney on the subpoena issue, Taylor's trial counsel made a qualified stipulation to the admission of the exhibit based on the truth of the Government's representations. 5

Exhibit "24" proved to be a vital piece of evidence for the Government. It was used to rebut Taylor's contention that a fraudulent scheme did not exist at the time of the transmission of the January 16, 1975 letter; it was used to corroborate in important respects the testimony of the prosecution's key witness, Continental loan officer Michael Wells; and, most importantly, it provided evidence of an essential element of the charged offense interstate communication to execute a fraud. 6

The jury rendered a guilty verdict on March 29, 1978. Taylor was sentenced to a term of one year and a day. On July 12, 1978, Taylor filed a direct appeal from his conviction (No. 78-2512), assigning a variety of trial errors. The most significant allegation of error was that the District Court erred in the admission of Exhibit "24" because, inter alia, the copy was improper under the "best evidence rule" of the Federal Rules of Evidence. 7 In his direct appeal Taylor did not impugn the veracity of the Government's statements concerning the inability of the subpoena power to uncover the original document, since resolution of that matter necessarily involved matters outside the trial record. Taylor made a personal request for proof of the subpoenas. Unfortunately, the Government did not respond with such proof. 8

On November 15, 1978, Taylor filed a motion in the District Court for a writ of error coram nobis challenging the Government's subpoena representations and requesting a hearing thereon. The District Court denied Taylor's motion without a hearing, due, in part, to the pendency of the direct appeal before this Court. Taylor filed an appeal (No. 79-1240) from the order of summary denial on March 12, 1979. Later, on May 3, 1979, following oral argument in the direct appeal, the two causes direct and collateral were consolidated. On January 15, 1980, both were submitted for decision.

DISCUSSION
I. No. 78-2512

Taylor raises several claims of error in his direct appeal, the most serious of which is that the District Court erred in admitting Exhibit "24" into evidence. Having determined that these claims are without merit, we affirm Taylor's conviction.

Taylor argues that because Exhibit "24" is at best a photocopy of the telecopied January 16, 1975 letter, it was improperly admitted into evidence. Federal Rule of Evidence 1002, Taylor correctly asserts, requires the production of the "original" writing to prove the contents thereof, "except as otherwise provided." Taylor contends that since Exhibit "24" is neither an "original" under Rule 1002 nor a "duplicate" within the exception of Rule 1003, 9 it should not have been admitted into evidence. Taylor's argument overlooks the state of the trial record and the clear application of the exception of Rule 1004(2), which allows the admission of secondary evidence when the "original" cannot be obtained by available judicial procedures. 10 When Exhibit "24" was offered for introduction into evidence at trial, the Government represented to the District Court that subpoenas requesting the "original" letter i. e., the one typed in San Diego 11 had been served on the parties and that the "original" was not produced. In reliance on this representation, the District Court admitted Exhibit "24" into evidence. Taylor's counsel did not object to the exhibit's admission. 12 Because Taylor's counsel failed to object to the admission of Exhibit "24," and even stipulated to the unavailability of the "original" letter, the record on direct appeal compels that we reject Taylor's "best evidence" argument. 13

We have carefully considered Taylor's remaining claims and find that the District Court did not abuse its discretion, that the jury was properly instructed, and that the evidence was adequate to support the jury verdict. Therefore, Taylor's conviction of wire fraud in the District Court is affirmed.

II. No. 79-1240

During the pendency of Taylor's direct appeal, he also filed a coram nobis motion with the District Court, the summary denial of which is the subject of the collateral appeal. In ruling on the denial of his collateral motion, we address solely the issue of whether Taylor has demonstrated that he is entitled to a hearing and do not decide whether relief is warranted. For the reasons set forth below, we reverse the District Court and remand for further proceedings.

In the motion for a writ of error coram nobis 14 presented to the District Court below, Taylor levels alarming charges against the Government. He contends that the prosecuting attorney misled the trial judge and defense counsel to believe that subpoenas had been issued at trial for the "original" letter, with the result that a less reliable document was admitted. In short Taylor's claim gives rise to the somber prospect that the Government committed a fraud on the court which ultimately worked a great prejudice to Taylor's case. 15

While Taylor points to no cases involving facts closely tracking those alleged in his motion, we have no doubt that Taylor's general assertion of principle is grounded in respectable authority, i. e., prosecutorial misconduct may so pollute a criminal prosecution as to require a new trial, especially when the taint in the proceedings seriously prejudices the accused. Courts, therefore, have ordered new trials when the prosecution has knowingly used perjured testimony 16 or withheld materially favorable evidence from the defense; 17 have excluded evidence seized pursuant to unlawful searches; 18 and have dismissed indictments when the defendant was entrapped by the...

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