Reisman v. United States, No. 21782

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES, HAMLEY, and BROWNING, Circuit
Citation409 F.2d 789
Docket NumberNo. 21782
Decision Date12 May 1969
PartiesSamuel REISMAN, Appellant, v. UNITED STATES of America, Appellee. Joseph J. BYRNES, Appellant, v. UNITED STATES of America, Appellee.

409 F.2d 789 (1969)

Samuel REISMAN, Appellant,
v.
UNITED STATES of America, Appellee.

Joseph J. BYRNES, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 21782, 21782-A.

United States Court of Appeals Ninth Circuit.

April 9, 1969.

Rehearings Denied May 12, 1969.


Clarence S. Hunt (argued), of Ball, Hunt, Hart & Brown, Long Beach, Cal., for Reisman.

409 F.2d 790

Earl P. Willens (argued), of Buchalter, Nemer, Fields & Savitch, Los Angeles, Cal., for Byrnes.

David R. Nissen (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., Doris R. Williamson, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before BARNES, HAMLEY, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

Appellants were convicted under 18 U.S.C. § 1341 of using the mails for the purpose of executing a scheme to defraud in connection with the subdivision and public sale of portions of the "Gamble Ranch" in Nevada. The pattern disclosed by the evidence is similar to that involved in two other cases recently before this court: Phillips v. United States, 356 F.2d 297 (9th Cir. 1965); and Windsor v. United States, 384 F.2d 535 (9th Cir. 1967).

Appellants' principal contention is that reversal is required because complaint letters from disgruntled customers were used against the appellants in a way prohibited by the Phillips decision.

Phillips held that complaint letters alleging misrepresentation are relevant to show that a defendant had a specific intent to defraud because such an intent may be inferred from the defendant's continued participation in a promotional venture after he has learned that the representations being made are misleading customers. However, as the court pointed out:

"* * * since it is the personal knowledge of the invidious fact which warrants such an inference, nothing less than personal knowledge of that fact will do to establish the fact even circumstantially. Thus so-called `constructive\' notice or knowledge of a circumstance, based upon the actual knowledge of a coconspirator, agent or employee, has no tendency, circumstantially or otherwise, to prove criminal intent" (356 F.2d at 303).

Accordingly, the court held, complaint letters are not admissible "on any theory of constructive notice to appellants based upon actual notice to other members of the asserted conspiracy" (304).1

Moreover, since such documents are relevant only on the theory that a defendant's actual knowledge of them shows that he must have realized the scheme was fraudulent, they should be admitted only after a preliminary determination by the trial court that there is a prima facie showing of actual knowledge (Phillips, 356 F.2d at 306 n. 8); and "the jury should be told in plain and direct language that such documents may be considered only if it has been independently shown that such defendant had actual knowledge of the documents while the asserted scheme was in progress." Phillips, 356 F.2d at 306.

We must agree with appellants that the constructive notice theory rejected in Phillips was applied in this case. Complaint letters were admitted as establishing notice to all the defendants of the misleading effect of Gamble Ranch advertising wherever it appeared that the letters had come to the attention of any one of the defendants or any of the employees or agents of the Gamble Land Company, including its attorney.2

409 F.2d 791

The government argues, as it did in Phillips, that there was direct and circumstantial evidence from which the jury could have found that each appellant had actual knowledge of the complaint letters.3 The trial court did not make a preliminary determination of the existence of such evidence as required by Phillips. In any event, as we pointed out in Phillips, the mere presence of such evidence is insufficient in the absence of a clear instruction that actual personal knowledge was required, because the jury may have based its verdict upon the actual knowledge of others imputed to the appellants. 356 F.2d at 304-305.4

Appellants objected to the introduction of the letters, but not on the ground articulated in Phillips. They did not request the trial judge either to make the preliminary determination or to give the instruction which Phillips requires. Nor did they object to the instructions which were given. The question presented, therefore, is whether these deviations from the principles applied in Phillips should be noticed by this court as "Plain errors or defects affecting substantial rights * * *." Fed.R.Crim.P. 52(b).

Rule 52(b) and the cases applying it avoid the imposition of detailed standards for the identification of errors "affecting substantial rights". The language of the rule implies, and the cases hold, only that while orderly administration of justice requires general adherence to the rule that errors be asserted in the trial court, exceptions must be recognized in unusual circumstances involving seriously prejudicial deficiencies in the trial process. "The plain error doctrine recognizes the need to mitigate in criminal cases the harsh effect of a rigid...

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23 practice notes
  • United States v. Pipefitters Local Union No. 562, No. 19466.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 17, 1970
    ...1318, 90 L.Ed. 1382 (1946); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Reisman v. United States, 409 F.2d 789, 791 (9 Cir. 1969); McMillan v. New Jersey, 408 F.2d 1375, 1377 n. 7 (3 Cir. 1969); Garza-Fuentes v. United States, 400 F.2d 219, 223 (5 Cir. 19......
  • U.S. v. Essex, No. 83-1169
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1984
    ...error must be not only plain and obvious but also of a type that would significantly prejudice the defendant. Reisman v. United States, 409 F.2d 789, 791 (9th Cir.1969). See generally, C. Wright, FEDERAL PRACTICE AND PROCEDURE: Criminal 2d Sec. 856 (1982). 36 Fed.R.Crim.Proc. 23(b). 37 Juro......
  • United States v. Scott, No. 23119.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 6, 1970
    ...v. United States, 235 F.2d 664, 666 (9th Cir. 1956), cert. denied 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59; Reisman v. United States, 409 F.2d 789, 791 (9th Cir. The majority recognizes the rule that a claim of error is waived, unless a proper objection is taken in the trial court. Rule 30, ......
  • Cooper v. Fitzharris, No. 74-2998
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 1978
    ...v. Johnson, 454 F.2d 700, 701 (9th Cir. 1972); Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969); Reisman v. United States, 409 F.2d 789, 791 (9th Cir. 1969). 14 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Francis v. Henderson, 425 U.S. 536, 9......
  • Request a trial to view additional results
23 cases
  • United States v. Pipefitters Local Union No. 562, No. 19466.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 17, 1970
    ...1318, 90 L.Ed. 1382 (1946); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Reisman v. United States, 409 F.2d 789, 791 (9 Cir. 1969); McMillan v. New Jersey, 408 F.2d 1375, 1377 n. 7 (3 Cir. 1969); Garza-Fuentes v. United States, 400 F.2d 219, 223 (5 Cir. 19......
  • U.S. v. Essex, No. 83-1169
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1984
    ...error must be not only plain and obvious but also of a type that would significantly prejudice the defendant. Reisman v. United States, 409 F.2d 789, 791 (9th Cir.1969). See generally, C. Wright, FEDERAL PRACTICE AND PROCEDURE: Criminal 2d Sec. 856 (1982). 36 Fed.R.Crim.Proc. 23(b). 37 Juro......
  • United States v. Scott, No. 23119.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 6, 1970
    ...v. United States, 235 F.2d 664, 666 (9th Cir. 1956), cert. denied 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59; Reisman v. United States, 409 F.2d 789, 791 (9th Cir. The majority recognizes the rule that a claim of error is waived, unless a proper objection is taken in the trial court. Rule 30, ......
  • Cooper v. Fitzharris, No. 74-2998
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 1978
    ...v. Johnson, 454 F.2d 700, 701 (9th Cir. 1972); Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969); Reisman v. United States, 409 F.2d 789, 791 (9th Cir. 1969). 14 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Francis v. Henderson, 425 U.S. 536, 9......
  • Request a trial to view additional results

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