U.S. v. Goodwin

• Decision Date: 17 September 1985
• Docket Number: 84-1980,Nos. 84-1183,s. 84-1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frances I. GOODWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 631

770 F.2d 631

UNITED STATES of America, Plaintiff-Appellee, v. Frances I. GOODWIN, Defendant-Appellant.

Nos. 84-1183, 84-1980.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1985.

Decided Aug. 8, 1985.

Rehearing and Rehearing En Banc Denied Sept. 17, 1985.

Mary F. Harkenrider, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Constantine J. Gekas, Chicago, Ill., for defendant-appellant.

Before BAUER, COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendant-appellant Frances Goodwin appeals her convictions for wire fraud and transporting securities and money in interstate commerce knowing the same to have been taken by fraud, in violation of 18 U.S.C. Secs. 1343 and 2314 (1982). Her grounds for appeal are (1) that the district court erred in denying her request for an investigator under the Criminal Justice Act (18 U.S.C. Sec. 3006A(e) (1982)); (2) that her Fifth Amendment right against self-incrimination was violated when the trial judge coerced her to testify at trial; (3) that the trial court erred in allowing the government to present certain rebuttal evidence; and (4) that the district court improperly denied her motion for a new trial based on newly discovered evidence. We affirm the convictions.

I.

Frances Goodwin was indicted in May 1983 on one count of wire fraud and one count of interstate transportation of securities and money taken by fraud. 18 U.S.C. Secs. 1343, 2314. The indictment alleged that Goodwin had fraudulently borrowed and never repayed approximately $48,000 from two families (the Tills and the Alexanders) with whom she was acquainted through their mutual membership in the Mormon Church. ¹ Following a five-day jury trial, Goodwin was found guilty on both counts. She was sentenced to thirty months imprisonment on each count, to run concurrently.

The government proved at trial that the Tills and Alexanders had loaned large amounts of money to Goodwin because of her representations in 1981-1982 that she was involved, through a corporation called Terrauto, Inc., in producing and marketing mobile hospital units in foreign countries and that she would repay the money as soon as the deals were completed, which she told them would be very soon. Goodwin's descriptions of her business were quite elaborate, involving United States Senators Orrin Hatch and Charles Percy, an unnamed senator from Florida, President Reagan, a former Lebanese ambassador named Eli Lutfallah, at least twenty-five Arab countries, Spain, Mexico, Swiss bank accounts, private jets, three or four American corporations, and millions upon millions of dollars. The government alleged that Goodwin made up the entire story in an attempt to defraud the Tills and Alexanders into loaning her money that she did not intend to repay. Goodwin's defense was that she never intended to deceive anyone, and that the statements that she made to the Tills and Alexanders were either true or she believed them to be true, based upon what Eli Lutfallah and others had told her.

Goodwin was able to corroborate only a small fraction of the business scheme that she had described to the Tills and Alexanders. The evidence at trial showed that Goodwin had in fact established a Nevada corporation named Terrauto, Inc. on October 24, 1972, but that the charter had been revoked in 1974 for failure to file an annual list of officers and directors and to pay the filing fees thereon. Goodwin and the government stipulated that if Senator Hatch were to testify, he would state that he had met Goodwin in 1974 or 1975 when he was in private practice in Salt Lake City and that he had performed legal services for Goodwin and a man named Keith Brown in connection with a business venture of theirs that later failed, the name of which Hatch could not recall. The stipulation also stated that Senator Hatch had approached Goodwin in 1974 or 1975 as a possible marketing person for an unrelated company that he had formed in Salt Lake City but that the venture was never completed, and that he had not seen Goodwin since 1975. The stipulation further provided that in 1976, Senator Hatch heard that Goodwin had begun attempting to market mobile hospital units but that he had never aided her attempts to market the units. Lastly, Senator Hatch would testify that in November 1979, he was informed by a Florida attorney that Goodwin had been using his name as a reference, and that Hatch subsequently sent a mailgram to Goodwin stating that he had no business relationship with her and requesting that she refrain from using his name in business transactions.

Eli Lutfallah testified at trial that he had met Goodwin in Illinois in 1973 and that he had discussed her mobile hospital business with her. Ten days later, Lutfallah met in Lebanon with a man associated with Goodwin and signed a contract to represent Goodwin's company in Lebanon. He further testified, however, that he had not seen or spoken to Goodwin since that meeting with her representative, and that he never made any effort to market mobile hospital units pursuant to the contract.

Ted Koyzis, a native of Cyprus, testified that he had met with Goodwin on a number of occasions in the mid-1970's to discuss the possibility of his acting as a middleman between Goodwin and Arab countries for the sale of mobile hospital units. He broke off all business dealings with Goodwin in 1975, however, because she was never able to provide documentation that she could actually produce the units for sale.

II.

A. Denial of Request for Investigator

Goodwin's first argument is that the district court erred in denying her request for an investigator under 18 U.S.C. Sec. 3006A(e). Section 3006A generally provides for the appointment of counsel for indigent defendants. Subsection (e) authorizes the court-appointed counsel to obtain investigative services in appropriate cases:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services.

18 U.S.C. Sec. 3006A(e)(1) (1982). Goodwin's court-appointed counsel filed a request for an investigator on September 26, 1983, but did not explain why an investigator's services were necessary to Goodwin's defense. The trial judge denied the request without prejudice on October 7, without ever holding an ex parte hearing on the motion. Goodwin never renewed the request. Goodwin asserts that the district court erred in two respects: by ruling on her request for investigative services without first conducting an ex parte proceeding, and by denying her request.

Goodwin interprets section 3006A(e)(1) as requiring that an ex parte hearing be held whenever a judge receives a request for investigative services, and that the trial judge thus erred by ruling on her request for an investigator without first holding such a hearing. We disagree. The plain language of section 3006A(e)(1) requires only that an ex parte proceeding be held before the court authorizes any investigative services, to ensure that the services are necessary and that the defendant is financially unable to obtain them before permitting public funds to be used for those purposes. We do not believe, although we can find no legislative history on this point, that Congress intended to require trial judges to hold an ex parte proceeding before considering or denying a request for investigative services when a defendant files a request for investigative services without, as here, even the barest of assertions that such services are necessary for an adequate defense. We believe that it would not be unduly burdensome, and would avoid potential delay and waste of judicial resources, to require a defendant to include in the request for investigative services a specific statement of why the services are necessary. See United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978) (when requesting investigative services, defendant must show specifically the reasons why such services are necessary), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979); United States v Mundt, 508 F.2d 904, 908 (10th Cir.1974) (same), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975). But cf. United States v. Theriault, 440 F.2d 713, 715 (5th Cir.1971) (error to deny Sec. 3006A(e) request for psychiatrist without conducting ex parte proceeding when request alleged that psychiatrist necessary to an adequate defense), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973). Because Goodwin's request for services did not indicate why an investigator was necessary, what the investigator would do, and why Goodwin's attorney could not perform the investigative work needed, the trial court was not required to hold an ex parte proceeding before denying her request. We note that the court denied Goodwin's request for an investigator without prejudice, thus leaving her with every opportunity to refile a request that met these simple requirements.

The decision to grant or deny a request for services under section 3006A(e) is one committed to the discretion of the trial court, and will be overturned on appeal only for an abuse of discretion. United States v. Alden, 767 F.2d 314, 319, (7th Cir.1984). This circuit has held that an appropriate test for deciding whether investigative services are "necessary for an adequate defense" under section 3006A(e) is whether a reasonable attorney would engage such services for a client having the independent financial means to pay for them. See Alden, at 318. As noted above, Goodwin's request for an investigator did not explain why an investigator was necessary to her defense. Goodwin argues that if the judge had held an...