Osborne v. United States

Decision Date21 February 1967
Docket NumberNo. 20240.,20240.
Citation371 F.2d 913
PartiesAlfred H. OSBORNE, Sr., Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Morris A. Shenker, Murry L. Randall, John L. Boeger, St. Louis, Mo., Alfred H. Osborne, Kansas City, Mo., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., Robert L. Brosio, Asst. U. S. Atty., Asst. Chief, Crim. Div., Jules D. Barnett, Asst. U. S. Atty., Chief, Fraud Sect., Los Angeles, Cal., for appellee.

Gladys Towles Root, Los Angeles, Cal., for appellee, Melnick.

Before BARNES, HAMLIN and BROWNING, Circuit Judges.

BARNES, Circuit Judge.

Appellant was indicted, together with codefendant Sam Melnick, in a twenty count indictment; the first eighteen counts charging violation of 18 U.S.C. § 1343 (fraud by wire);1 the nineteenth count charging a violation of 18 U.S.C. § 2314 (interstate transportation of monies obtained by fraud);2 and the twentieth a violation of 18 U.S.C. § 371 (conspiracy to defraud).

At a jury trial, appellant was convicted of substantive counts 5, 6, 16 and 18; and of substantive count 19, and the conspiracy count, 20. After a week of trial, the codefendant Melnick entered a guilty plea to the conspiracy count. Appellant was sentenced to five years on each of the six counts; the sentences on 5, 6 and 16 to run concurrently with each other, and 18, 19 and 20 to run concurrently with each other but consecutively to sentences on 5, 6 and 16.

Jurisdiction below rested on 18 U.S.C. § 3231, and rests here on 28 U.S.C. §§ 1291 and 1294.

The facts are complicated, and difficult to accurately outline. This difficulty is enhanced by inadequate references to the reporter's transcript in the government's brief.3

I. Sufficiency of the Evidence on Conspiracy Count (Appellant's Specification of Error XI.)

It was for this reason necessary for the court to read the entire reporter's transcript. From that reading it seems clear that by a substantial preponderance of evidence, the two named defendants participated in a scheme to defraud certain parties of a great deal of money, and obtained it by means of fraudulent representations.4 We are entirely satisfied with the sufficiency of the evidence to support the conviction on count twenty. It is unnecessary to repeat such evidence herein in detail.5

We pass, then, to the proof of the enumerated substantive wire fraud counts (5, 6, 16 and 18) and the interstate transportation of money fraudulently obtained (19). But before that, we consider certain errors in law allegedly occurring.

II. Grand Jury Testimony.

We first will consider the point made in Appellant's Supplemental Brief (Appellant's Specification XII) — the refusal of the trial court to permit the defense to inspect the grand jury testimony of certain witnesses.

Appellant Osborne had already seen certain of the grand jury testimony taken in Southern California delivered to him at the time of appellant's previous trial on another indictment in St. Joseph, Missouri. There his conviction for conspiracy to rob certain banks, and aiding and abetting bank robberies, was reversed because the testimony of his two codefendants (Richard Leu and Mary Dorrel, who had entered pleas of guilty in the Missouri case, and who had implicated Osborne in the offenses charged), given before a grand jury in California by Leu and Dorrel which had not been offered or admitted in evidence at appellant's Missouri trial, was by mistake delivered to the jury by the Missouri court clerk, and highly prejudicial and inadmissible evidence contained within such transcript was possibly before the jury.

During Leu's testimony, Osborne's counsel in the Missouri trial had asked for and received the grand jury testimony of Leu, but made no use of it and it was not introduced in evidence. For the complete story, see Osborne v. United States, 8 Cir., 351 F.2d 111 at 114, et seq. The eighth circuit first held: "The delivery to the jury for their consideration of an exhibit not received in evidence constitutes error," citing cases (351 F.2d at 115).

It next held the error was prejudicial, because the general rule was that: "Placing before the jury evidence of other crimes committed by the defendant constitutes prejudicial error." (Citing cases. 351 F.2d at 117.) This included Leu's testimony Osborne had "concluded a business deal at the point of a gun," and "had a witness taken care of" who was thereafter known as "Seldom Seen." (Id., pp. 117, 118.)

(a) First Request for Inspection. (Webb, R.T. pp. 132-134):

At his California trial, appellant Osborne sought to prove by the grand jury testimony that "a witness" (F.B.I. Agent Yates Webb) before "some grand jury" had accused Robert Webb, then testifying against Osborne, of "robbing savings and loan associations," (p. 132) and having "over 50 hot checks or insufficient fund checks out in several states." (R.T. p. 133.) Osborne was permitted to ask Webb if he had been promised any immunity for his testimony, and Webb denied this. F.B.I. Agent Yates Webb did not testify at this trial against appellant.

(b) Second Request for Inspection. (Yergin, R.T. pp. 627-628):

Osborne also sought to prove when cross-examining Callie Yergin, by grand jury testimony, "that a different set of facts was presented under oath to the grand jury." Contrary to appellant's Supplemental Brief, page 2, no reference was made as to whether it was Mrs. Yergin, or someone else, who had presented "a different set of facts." (R.T. p. 627, ll. 18-24.)

(c) Third Request for Inspection. (Rabe, R.T. pp. 706-710; 758-760):

Osborne again sought a transcript of grand jury testimony after the plea of guilty by his codefendant Melnick, "in that I have knowledge and believe that perjury was presented before that grand jury; that inflammable untrue, wild and ridiculous statements were made to that grand jury in order to get this indictment against me." (R.T. p. 706.)

This oral motion was supplemented by a written motion. The written motion did not refer to "untrue, wild or ridiculous statements" made by anyone, but asked for the testimony of six witnesses, including Mrs. Yergin. The "untrue, wild and ridiculous statements" were orally alleged to have been made by the appellant's Missouri codefendants Leu and Dorrel.

In other words, neither Yates Webb, Leu or Dorrel could under any circumstances be classified as "key witnesses" against appellant at the trial at which he was convicted in California, for they were never called as witnesses. Thus appellant's first and third requests are each factually without merit.

But Mr. Osborne's second request and his written motion did include a reference to Mrs. Yergin's testimony. Mrs. Yergin could be classed as a key witness. For that reason we consider the effect and requirements of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L. Ed.2d 973 (1966): the Court ruling in Part III thereof that it was reversible error for the trial court to refuse to permit the defense to inspect the grand jury testimony of government witnesses. The Supreme Court first said:

"This Court has recognized the `long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.\' United States v. Procter & Gamble Co., 356 U.S. 677, 681 78 S.Ct. 983, 986, 2 L.Ed.2d 1077. And it has ruled that, when disclosure is permitted, it is to be done `discreetly and limitedly.\' Id. at 683, 78 S.Ct. at 987. Accordingly, the Court has refused in a civil case to permit pretrial disclosure of an entire grand jury transcript where the sole basis for discovery was that the transcript had been available to the Government in preparation of its case. Procter & Gamble, supra. And, in Pittsburgh Plate Glass Co. v. United States, supra, the Court sustained a trial court\'s refusal to order disclosure of a witness\' grand jury testimony where the defense made no showing of need, but insisted upon production of the minutes as a matter of right, and where there was `overwhelming\' proof of the offense charged without reference to the witness\' trial testimony." (384 U.S. at 869, 86 S.Ct. at 1848.)

The Supreme Court then detailed the five circumstances which required a reversal in Dennis, supra:

"The record shows the following circumstances:
"1. The events as to which the testimony in question related occurred between 1948 and 1955. The grand jury testimony was taken in 1956, while these events were relatively fresh. The trial testimony which petitioners seek to compare with the 1956 grand jury testimony was not taken until 1963. Certainly, there was reason to assay the latter testimony, some of which is 15 years after the event, against the much fresher testimony before the grand jury. Footnote omitted.
"2. The motions in question involved the testimony of four of the eight government witnesses. They were key witnesses. The charge could not be proved on the basis of evidence exclusive of that here involved.
"3. The testimony of the four witnesses concerned conversations and oral statements made in meetings. It was largely uncorroborated. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements.
"4. Two of the witnesses were accomplices, one of these being also a paid informer. A third had separated from the union and had reasons for hostility toward petitioners.
"5. One witness admitted on cross-examination that he had in earlier statements been mistaken about significant dates." (384 U.S. at 873, 86 S.Ct. at 1850.)

We compare these circumstances with the facts of this case:

1. Instead of the events taking place one to eight years prior to the grand jury testimony, and eight to fifteen years prior to the trial testimony (as in Dennis, supra), in the instant case...

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