U.S. v. Gardner

• Decision Date: 11 January 1980
• Docket Number: No. 76-1874,76-1874
• Parties: 80-1 USTC P 9390, 6 Fed. R. Evid. Serv. 219 UNITED STATES of America, Plaintiff-Appellee, v. John David GARDNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 770

611 F.2d 770

80-1 USTC P 9390, 6 Fed. R. Evid. Serv. 219

UNITED STATES of America, Plaintiff-Appellee, v. John David GARDNER, Defendant-Appellant.

No. 76-1874.

United States Court of Appeals Ninth Circuit.

Jan. 11, 1980.

Elliott E. Stanford, Los Angeles, Cal., for defendant-appellant.

Bert H. Deixler, Asst. U. S. Atty., Los Angeles, Cal., argued for plaintiff-appellee; Leonard Sharenow, Los Angeles, Cal., on the brief.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON and HUG, Circuit Judges, and EAST ^*, District Judge.

HUG, Circuit Judge:

John David Gardner appeals his conviction on three counts of willfully attempting to evade federal income taxes, in violation of 26 U.S.C. § 7201. The jury found that Gardner had understated his taxable income in each of the years 1968, 1969, and 1970. Gardner raises numerous contentions on appeal, none of which requires reversal of his conviction. We affirm.

I

After Gardner's indictment on three counts of tax evasion, the Government sought to strike a plea bargain with Gardner. The Government offered to abandon plans to seek a second indictment against Gardner on charges of filing false statements to secure loans and to dismiss two counts of the original indictment if Gardner pleaded guilty to one count of tax evasion and cooperated with the Government in another criminal investigation involving other suspects. Gardner rejected the offer. Subsequently, Gardner was convicted on all three counts of tax evasion, and the Government obtained an indictment against Gardner on the charges of filing false statements. Gardner contends that the Government's threat to obtain the second indictment created an appearance of vindictiveness which impermissibly burdened his rights to stand trial and to refuse to cooperate with the criminal investigation. ¹

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), a state prosecutor offered to recommend a lenient sentence for a criminal defendant if the defendant agreed to plead guilty to a felony charge. Additionally, the prosecutor threatened to obtain an indictment under a recidivist statute, which carried a heavier penalty than the original charge, if the defendant chose to stand trial. The Supreme Court held that, so long as the defendant was free to accept or reject the offer, the prosecutor could lawfully present the defendant with the alternatives of pleading guilty or facing charges on which he was plainly subject to prosecution. Id. at 363-65, 98 S.Ct. 663.

Gardner does not assert that the Government had no probable cause to prosecute him on the charges of filing false statements, and it is clear that Gardner was free to accept or reject the offer proposed by the Government in plea bargaining. Consequently, in light of Bordenkircher, we must reject Gardner's contention that the Government's offer unlawfully impinged upon Gardner's right to plead not guilty and stand trial. See id. Similarly, the Government could lawfully seek to induce Gardner to cooperate in another criminal investigation. Cf. United States v. Warren, 594 F.2d 1046, 1049 (5th Cir. 1979) (offer by prosecutor to drop charges against witness in exchange for testimony against codefendant).

II

During pretrial proceedings, Gardner moved to dismiss the indictment on the ground, Inter alia, that the Government had obtained evidence against him through the use of illegal electronic surveillance. Gardner supported his allegations with affidavits submitted by one Darthard Perry, a one-time paid informant for the Federal Bureau of Investigation. Those affidavits stated that Gardner was under frequent electronic surveillance by federal authorities. In response, the Government produced the affidavit of F.B.I. Agent Stephen Moss, which stated that the records of the Washington, D.C. headquarters and two field offices of the F.B.I. indicated that Gardner had not been the subject of electronic surveillance. Moss had personally checked the records of one field office and had obtained reports from the other offices. In addition, the Government communicated to the court the statement of a member of the Department of Justice, Tax Division, that each of six federal agencies had reported that it had not conducted electronic surveillance of Gardner.

The trial court initially criticized the Government's response for lack of specificity in Moss's affidavit and for the Government's failure to produce an affidavit from the agent who personally checked the F.B.I. records at the Washington, D.C. headquarters. However, the court denied the motion to dismiss without prejudice to its renewal after trial. Upon renewal of the motion to dismiss after trial, the court accepted the Government's denial of electronic surveillance and denied Gardner's motion. Gardner contends that the Government inadequately negated his allegations of illegal surveillance, warranting reversal of the conviction.

Upon a preliminary showing by a criminal defendant that he was the victim of illegal electronic surveillance, the prosecution must unequivocally affirm or deny the use of such surveillance. See 18 U.S.C. § 3504(a)(1); United States v. Alter, 482 F.2d 1016, 1026-27 (9th Cir. 1973). However, a general or unsupported claim by the defendant requires only a response appropriate to that claim. See United States v. See, 505 F.2d 845, 856 (9th Cir. 1974), Cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). The specificity of the prosecution's denial and the comprehensiveness of the search on which the denial is predicated must be measured against the specificity of the allegations of unlawful electronic surveillance and the strength of the support for those allegations. See United States v. Alvillar, 575 F.2d 1316, 1321 (10th Cir. 1978); United States v. See, 505 F.2d at 856 n. 18.

Perry's affidavits, the chief support for Gardner's allegations, were thoroughly impeached by testimony taken at hearings on the motions to dismiss and at trial. ² In light of the general nature of Gardner's allegations and the failure to provide substantial support for those allegations, the Government's denial of electronic surveillance was adequate. Absent a stronger showing by Gardner, first-hand inspection of the F.B.I. records by the Government's affiant was not required; the information received by Moss and stated in his affidavit was sufficient. See United States v. Yanagita, 552 F.2d 940, 945 (2nd Cir. 1977); In re Weir, 495 F.2d 879, 881 (9th Cir.), Cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). The district court properly accepted the Government's denial of Gardner's allegations of electronic surveillance.

III

During the trial, Gardner directed a general request to the Government to produce "all evidence within the Government's knowledge or possession which may be favorable to the accused and is material to either guilt or punishment." The trial court made a similar request. In response, the Government submitted to the court for In camera inspection the excised portions of two documents and the full text of several other documents. The Government had determined that the matter submitted to the court contained information that was potentially material to the issue of the credibility of Government witnesses. After review, the district court turned a single document over to the defense; the court concluded that the remaining information was insufficiently material to require disclosure.

On appeal, Gardner does not assert that he has discovered specific, exculpatory evidence improperly suppressed by the Government. Rather, he contends that the procedure adopted by the Government and approved by the district court inadequately protected his constitutional rights.

The prosecution may not suppress exculpatory evidence that is material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In a case in which a general request for exculpatory evidence is made, the test for materiality is whether the suppressed evidence "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976).

In response to a request for exculpatory evidence the prosecution does not have a constitutional duty to disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality. See Agurs, 427 U.S. at 108-112, 96 S.Ct. 2392. If the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an In camera inspection and evaluation. See id. at 106, 96 S.Ct. at 2399 (prosecutor may respond to specific request by "submitting the problem to the trial judge."); United States v. Ross, 511 F.2d 757, 765 (5th Cir.), Cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

In this case, the Government properly submitted to the trial court for In camera evaluation only those documents or portions of documents that it determined were arguably subject to disclosure under Brady and Agurs ; sensitive information not meeting that standard could be deleted or withheld. We reject Gardner's assertion that the excision of portions of two of the submitted documents indicates that the deleted portions contained material, exculpatory information. The court was in a position to determine whether it needed to see the excised portions of documents in its In camera inspection in order to make a proper evaluation. Absent a more concrete showing that the Government improperly suppressed material evidence, we find no reversible error in the procedure utilized by the district court. See United States v. Frazier, 394 F.2d 258, 262 (4th Cir.), Cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968).

IV

To establish that...