Strangway v. United States

• Decision Date: 12 February 1963
• Docket Number: No. 18160.,18160.
• Citation: 312 F.2d 283
• Parties: Frank STRANGWAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

312 F.2d 283 (1963)

Frank STRANGWAY, Appellant, v. UNITED STATES of America, Appellee.

No. 18160.

United States Court of Appeals Ninth Circuit.

January 8, 1963.

Rehearing Denied February 12, 1963.

Richard E. Adams, San Diego, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Richard A. Murphy, Asst. U. S. Atty., Asst. Chief, Criminal Section, Los Angeles, Cal., for appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

Frank Strangway was convicted and sentenced, on a jury verdict, on count five of a twelve-count indictment charging violations of 26 U.S.C. § 7206(2), Internal Revenue Code of 1954.¹ Under count five Strangway was charged with having, on February 27, 1959, wilfully and knowingly aided and assisted in, and counseled, procured and advised the preparation and presentation of a false and fraudulent income tax return of Ramona E. Rodriguez for the year 1958. Appealing to this court, Strangway contends that the district court erred in several different respects.

First, appellant contends that the verdict is contrary to the evidence and the trial court therefore erred in failing to dismiss at the close of the Government's case, and in failing to direct a verdict of acquittal.

The Government argues that appellant designated only a portion of the evidence for inclusion in the record on appeal and that, for this reason, we may not pass upon the question of the sufficiency of the evidence. Appellant has not contradicted the Government's assertion that only a partial transcript has been filed.²

The Government's position is correct. Where only a partial transcript of the evidence is included in the record on appeal, the sufficiency of the evidence cannot be evaluated. Donaldson v. United States, 9 Cir., 248 F.2d 364, 367.

Second, Strangway contends that the trial court erred in rejecting his offered instruction to the effect that if the evidence is susceptible of two reasonable constructions or interpretations, one of which points to guilt and the other to innocence, the jury must adopt that interpretation which points to innocence.

Strangway does not argue this point in his brief. Nor did he object in the trial court to the failure to give this instruction, as required under Rule 30, Federal Rules of Criminal Procedure. For these reasons we decline to consider this contention on the merits.

Third, appellant contends that the trial court erred in rejecting his offered instruction to the effect that the jury may not convict on circumstantial evidence alone, unless the proved circumstances are not only consistent with the hypothesis of guilt, but are irreconcilable with any other rational conclusion.

The proposed instruction is not in accord with the currently-accepted rule in the federal courts. See Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150; Bolen v. United States, 9 Cir., 303 F.2d 870, 874.

Fourth, appellant contends that the jury should have been instructed on the evaluation of the testimony of an accomplice. This point is not mentioned in appellant's specifications of error relied upon, as required by Rule 18(d) of the rules of this court. Under that rule, if appellant proposed an instruction on the subject he should have set it out totidem verbis in such a specification, together with the grounds of the objection urged at the trial to the court's refusal to give the instruction. If he did not so object, he is not entitled to raise the question in this court, unless we notice the matter as a plain error or defect affecting substantial rights. Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., Baker v. United States, 9 Cir., 310 F.2d 924, decided November 20, 1962.

It would appear from the portion of the record cited by appellee that the trial court asked counsel for appellant if he had any objections to the instructions given or refused, and that counsel indicated an objection only with regard to the refused instruction on circumstantial evidence. Appellant has not asked us to notice this matter as plain error but, in any event, we hold that it did not constitute plain error.

Fifth, appellant contends that in giving the instruction quoted in the margin, the trial court erroneously coerced the jury into bringing in a verdict, and asked it to consider factors outside the evidence.³

The objection taken to the giving of this instruction was not adequate as it failed to state a ground for the objection. But, proceeding to the merits, the questioned instruction is almost identical with an instruction given in United States v. Tomoya Kawakita, S.D.Cal., 96 F.Supp. 824, 855-856, which instruction was approved by this court on appeal. Tomoya Kawakita v. United States, 9 Cir., 190 F.2d 506, 521-528. In our view the giving of this charge was not, under the circumstances of this case, prejudicial to appellant.⁴

Sixth, appellant contends that since the 1958 tax return which Ramona E. Rodriguez signed, constituted a declaration under the penalty of perjury, the effect of permitting her to testify at the trial that the return was not true and correct is "to permit a foundation for prosecution to be based on perjured testimony." Appellant also invokes the rule that a conviction cannot stand where the testimony of a material witness is false and without which a jury might have reached a different conclusion, citing United States v. Johnson, 7 Cir., 149 F.2d 31; and Martin v. United States, 5 Cir., 17 F.2d 973.

In both Johnson and Martin, affidavits submitted after trial in support of motions for a new trial on the ground of newly-discovered evidence tended to show that a major witness for the prosecution had testified falsely at the trial. But in our case there is no such showing.

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