U.S. v. Jenkins

• Decision Date: 30 August 1989
• Docket Number: No. 87-3177,87-3177
• Citation: 884 F.2d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James S. JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 433

884 F.2d 433

UNITED STATES of America, Plaintiff-Appellee, v. James S. JENKINS, Defendant-Appellant.

No. 87-3177.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1989.

Decided August 30, 1989.

Ronald H. Hoevet, Portland, Or., for defendant-appellant.

Charles W. Stuckey, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, WALLACE and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

In June of 1987, a jury returned a guilty verdict against James Jenkins on two counts of aiding and assisting the preparation of false income taxes. Jenkins was sentenced to three years in prison on Count I and five years probation on Count II. The district court conditioned probation on Jenkins' payment of $250,225.00 in restitution. Jenkins argues that the conviction should be reversed because (1) the district court improperly limited the scope of cross-examination of a leading prosecution witness, Bruce Schulte; and (2) the indictment was insufficiently specific. He also argues that the "restitution condition" on his probation is improper. We affirm the conviction, but vacate his sentence on both counts and remand for resentencing.

I

In 1979, IRS Special Agent Checkwith began an investigation of the tax affairs of Bruce Schulte. The investigation focused on various foreign trusts Schulte was using as tax shelters.

According to the government, Schulte, his accountant (Jones), and Jenkins concocted a scheme to allow Schulte to offset the tax liability for 1979 resulting from the income from the foreign trusts. In 1980, Jenkins was selling distributorships of a "new" form of toilet (the Mediator toilet) as a tax shelter. On October 13, 1980, two days before the 1979 return was due, Jones, Jenkins and Schulte met. At that meeting, Schulte agreed to purchase the rights to distribute the Mediator toilet for $862,500, to be paid by two promissory notes. According to the government, Jenkins suggested to Schulte that the notes be back-dated so that it would appear that the investment was made in 1979 to enable Schulte to offset the trust income for 1979 with a loss. According to Jenkins, "it was Mr. Jones' idea to date the documents December 31, 1979" and Jenkins' purpose in agreeing to the back-dating was not to assist Schulte in avoiding tax liability for 1979.

Schulte served a one-year sentence for tax evasion. The record does not indicate what punishment, if any, Jones received. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II

1. Limitations on the Scope of Cross-Examination

a. Standard of Review

Whether the district court has violated the confrontation clause is a question of law involving the accused's constitutionally guaranteed right to a fair trial and is reviewed de novo. Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir.1980). Although our review is de novo, we nonetheless recognize that trial courts in the conduct of trials have considerable discretion as to what evidence they admit, what they exclude, and how and what questions may be asked provided a fair trial is had. See United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985); Once the reviewing court concludes that the district court violated the confrontation clause, it must decide whether the district court's error was harmless. Our prior circuit law expressed in Chipman, 628 F.2d at 533 ("Confrontation clause doctrine appears to require reversal if there is any error; whether the error was harmless in the particular case is not considered."), has been overruled by Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986), in which the Supreme Court held that

                United States v. Kennedy, 714 F.2d 968, 973 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984).  Because a district court has a good deal of discretion in limiting cross-examination, a reviewing court normally will hold that the district court violated the confrontation clause only if it concludes that the district court denied the jury "sufficient information to appraise the biases and motivations of the witness."    McClintock, 748 F.2d at 1290.    Accord United States v. Jackson, 756 F.2d 703, 707 (9th Cir.1985)
                

the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors ... [including] the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Thus, "the extent of cross-examination otherwise permitted" is a relevant factor both in determining whether there was a confrontation clause violation and in determining whether any such violation was harmless.

b. The Merits of Jenkins' Confrontation Clause Claim

Jenkins argues that the district court violated his constitutional right to confront witnesses against him when it ruled that Jenkins' counsel could not inquire on cross-examination whether Schulte's sworn affidavit of January 8, 1986 was the product of coercion or duress. Paragraph 6 of this affidavit states in effect that Jenkins suggested to Schulte that he back-date the documents and that Jenkins explained that this back-dating would have the effect of wiping out Schulte's tax liability from his participation in the foreign trusts and would divert the IRS special agent investigating Schulte's involvement in those trusts.

During redirect examination, Schulte maintained that paragraph 6 of the affidavit, although "true conceptually," is "not true." Schulte then asked if he could ask the judge a question, and the judge dismissed the jury. While the jury was out, Schulte told the judge that "I am saying that statement was taken under duress. I will only tell you what was true. I cannot say they threatened me with perjury to put me in jail. I really don't know what to do." The judge then asked Jenkins' counsel to ask Schulte the questions he proposed to ask in front of the jury. During this questioning, Jenkins' counsel asked Schulte if Schulte had just said that the statements in the affidavit were the product of coercion and duress and Schulte answered "yes." The judge then questioned Schulte about the nature of the coercion and duress, presumably in order to get some sense of what Schulte meant by these words.

BY THE COURT

Q. When you speak of coercion and duress, Mr. Schulte, as being present in your mind as of the time you gave the statement, January 18, 1986, are you referring to some kind of threats that were then being made to you in so many words by Mr. Checkwick?

A. No, Your Honor. What I was referring to then I didn't realize, you know just when it was signed. I was [in my lawyer's office] Saturday. And I asked on these agreements. And we found the same day I was sentenced.

So what I am saying is I had a phone call will you meet me somewhere, I have a statement I want to go over with you. And I met Mr. Checkwick in a coffee shop. We just went over this agreement which he had already typed up and prepared. We made a few changes on it basically. And here it stands. I mean I didn't really have the time to review it. I didn't sit down and make the statements conceptually. I am saying everything here is the truth.

Q. Well, you were feeling under pressure at that time because your sentence was coming up?

A. That is right.

Q. I mean pressure from the sentence alone?

A. (No response.)

Q. That is true of anybody that is getting ready to be sentenced, isn't it?

A. That's true.

Q. But you were given an opportunity by Mr. Checkwick to object to various parts of it and to make corrections or to ask that corrections be made?

A. That is right. That is what we have done.

While the jury was still out, the district court ruled that Jenkins' lawyer (Mr. Hoevett) could not use the words "coercion" and "duress" during his cross-examination in front of the jury, but that he could inquire about the pressures Schulte was feeling on January 8:

THE COURT: ... I rule out the claim by way of exploration of coercion or duress that is implicit in--or explicit, I should say, in some of Mr. Hoevett's questions. I treat those questions as being proposed cross-examination and I rule that they are not entitled to be asked in the presence of the jury.

MR. HOEVETT: May I be allowed to inquire into the circumstances in which the statement was given; that it was given on the morning before he was to be sentenced?

COURT: ... yes, of course. If the course of the two events has not been earlier mentioned, of course, you can mention it....

MR. HOEVETT: ... I also think it proper cross-examination to suggest[ ], as anyone would, that Mr. Schulte felt some pressure on the morning he was to be sentenced to cooperate with Mr. Checkwick. I don't know if that is necessarily encompassed within the words "coercion" and "duress." Certainly he wasn't in a position to refuse a meeting with Mr. Checkwick because he knew he was looking for the Government to say something at the sentencing.

THE COURT: Well, anyone who is as skilled an advocate as you are can find other adjectives which approach the same concept as are embodied in the words "coercion" and "duress." And that one we will sort of have to play by ear I suggest to you because I have already told you I will allow you...