U.S. v. Lach, 94-50109
| Decision Date | 23 March 1995 |
| Docket Number | No. 94-50109,94-50109 |
| Citation | 50 F.3d 17 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Thaddeus Lawrence LACH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: BROWNING, D.W. NELSON, and HAWKINS, Circuit Judges.
Thaddeus Lawrence Lach appeals his conviction for subscribing false income tax returns in violation of 26 U.S.C. Sec. 7206(1). Specifically, he argues that the district court's denial of his motion for a new trial was improper because of numerous alleged errors at trial. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.
Lach argues that the district court violated Federal Rule of Evidence 404(b) by improperly admitting exhibits and testimony by former IRS Agent Lynn Lipscomb Smith relating to a 1982 audit of Lach. This court reviews the decision to admit evidence under Rule 404(b) for an abuse of discretion. Arizona v. Elmer, 21 F.3d 331, 335 (9th Cir.1994).
Lach asserts that the notice of the government's intention to introduce Rule 404(b) evidence was misleading because the proffered testimony deviated significantly from the description in the notice. We disagree. Although the government's notice did not specifically state that Smith's testimony would focus on the fact that Lach had overreported expenses, it did satisfy the requirement of "reasonable notice in advance of trial ... of the general nature of any [Rule 404(b) ] evidence [the government] intends to introduce at trial." Fed.R.Evid. 404(b). First, the notice's statement that Smith's testimony would reveal that Lach was "not reporting the corporations' true income" was substantially accurate. As Smith's testimony revealed, the direct effect of overreporting expense deductions is to "[r]educe the corporate taxable income." Second, the IRS reports that were offered into evidence, which plainly list overreported expenses discovered during the prior audit, were attached to the 404(b) notice. Even Smith's testimony that Lach had stated, "The little guy has to have a tax shelter, too," was anticipated by the notice's general statement that Smith had met with Lach to "discuss the problems" with the audit. Thus, we find no error arising from the 404(b) notice.
Lach also argues that Smith's testimony and the exhibits did not meet particular requirements for Rule 404(b) material. Although Lach does not dispute that the testimony was relevant on the issue of intent, he argues that the prior audits were too remote in time, were not similar to the present charges, and were more prejudicial than probative. See United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989), cert. denied, 494 U.S. 1083 (1990). 1
These claims are without merit. Although the prior audit occurred six years before Lach filed the allegedly improper tax returns, this is not so remote as to be inadmissible under Rule 404(b). See Ross, 886 F.2d at 267 (); United States v. Spillone, 879 F.2d 514, 519 (9th Cir.1989) (), cert. denied, 498 U.S. 878 (1990); United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir.) (admitting statements arising from arrest eight years earlier), cert. denied, 469 U.S. 837 (1984).
Even though the prior audit violation for overreporting of expenses was not identical to the present charge of underreporting gross receipts, it was sufficiently similar because both incidents resulted in an underreporting of the corporate income. See United States v. Bergman, 813 F.2d 1027, 1029 (9th Cir.), cert. denied, 484 U.S. 852 (1987); United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir.), cert. denied, 479 U.S. 855 (1986).
Finally, the district court's determination that the prior audit was more probative than prejudicial should not be disturbed. See United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir.1982) (). Indeed, we have declined to overturn the admission of Rule 404(b) evidence under far more prejudicial circumstances than the revelation of prior tax audits. See United States v. Hadley, 918 F.2d 848, 852 (9th Cir.1990) (). Particularly where the court gave an instruction limiting the use of the evidence to the issues of intent and absence of mistake, we decline to reverse the admission of the 404(b) evidence. See id.; Spillone, 879 F.2d at 520.
Lach also asserts reversible error arising from the government's failure to disclose various documents relating to the 1982 audit. Lach claims that this failure violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963); the Jencks Act, 18 U.S.C. Sec. 3500; and discovery rules, Fed.R.Crim.P. 16(a)(1)(C). We reject these arguments.
This court reviews alleged Brady violations de novo. United States v. Woodley, 9 F.3d 774, 777 (9th Cir.1993). A court should only reverse a conviction if the alleged Brady information is material, i.e., if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Kennedy, 890 F.2d 1056, 1058 (9th Cir.1989) (internal quotations omitted), cert. denied, 494 U.S. 1008 (1990).
In the present case, the government denies the existence of additional materials relating to the 1982 audit. The only evidence of such materials is a declaration by Lach's appellate counsel that the IRS generally keeps an administrative file with materials of the type he has sought in this case. However, the bare assertion that the government has not released all relevant documents does not establish materiality under Brady. See United States v. Endicott, 803 F.2d 506, 514 (9th Cir.1986). Thus, Lach has not asserted a valid Brady claim.
Under the Jencks Act, the defendant would be entitled, upon request, to prior statements of testifying witnesses which relate to the subject matter of his testimony. 18 U.S.C. Sec. 3500(b); United States v. Cleveland, 477 F.2d 310, 316 (7th Cir.1973). This court reviews denial of a Jencks Act request for abuse of discretion. United States v. Boshell, 952 F.2d 1101, 1104 (9th Cir.1991).
Lach waived his Jencks Act claim because he did not make a specific request for Jencks Act material following Smith's testimony. See United States v. Lyman, 592 F.2d 496, 498-99 (9th Cir.1978), cert. denied, 442 U.S. 931 (1979). Even if Lach had requested materials, only statements which "simply record, be it in either verbatim or paraphrased form, the interviewee's remarks," constitute "statements" discoverable under the Jencks Act. United States v. Griffin, 659 F.2d 932, 938 (9th Cir.1981), cert. denied, 456 U.S. 949 (1982). Because Lach has not shown that any withheld files contain such specific statements by a testifying witness, there could be no Jencks Act violation. See United States v. Pisello, 877 F.2d 762, 768 (9th Cir.1989); United States v. Michaels, 796 F.2d 1112, 1117 (9th Cir.1986), cert. denied, 479 U.S. 1038 (1987).
Similarly, Federal Rule of Criminal Procedure 16 does not compel the disclosure of the alleged administrative file. The district court's discovery rulings are reviewed for an abuse of discretion. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990). In this instance, Lach cannot complain of a Rule 16 violation because defense counsel never made a general discovery request under Rule 16(a)(1)(C). See United States v. Ness, 652 F.2d 890, 892 n. 1 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). Even if Lach had made a request, Lach's conclusory assertions of the existence and materiality of additional documents are insufficient to satisfy the materiality requirement. See United States v. Little, 753 F.2d 1420, 1445 (9th Cir.1984). Accordingly, we reject Lach's claims that the government violated Rule 16(a)(1)(C).
Lach asserts that the court violated Federal Rule of Evidence 615 because after a request that the witnesses be sequestered, it permitted two government agents to sit at the prosecution's table, yet denied the defense's request to have an accounting expert at defense counsel's table. We review a district court's decisions on exclusion of witnesses under Rule 615 for abuse of discretion. Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir.1986).
Under Rule 615, "[a]t the request of a party the court shall order witnesses excluded." Fed.R.Evid. 615; United States v. Brewer, 947 F.2d 404, 407 (9th Cir.1991). Lach first challenges the court's decision to permit two government agents to sit at counsel table. Lach concedes that the presence of one government agent is permissible under the exception to the mandatory exclusion rule for "an officer or employee of a party which is not a natural person designated as its representative by its attorney." Fed.R.Evid. 615. We have read this provision, however, to permit two individuals to represent a party at counsel table. Breneman, 799 F.2d at 474; see also United States v. Alvarado, 647 F.2d 537, 540 (5th Cir. Unit A June 1981) (); United States v. Spina, 654 F.Supp. 94, 96 (S.D.Fla.1987), aff'd 881 F.2d 1086 (11th Cir.1989) (same).
We likewise reject Lach's claim that the court violated Rule 615 in its treatment of the defense experts. Although the defendant's expert submitted a declaration stating that he was "not allowed to be in the courtroom during the testimony ... of the government expert witnesses," the district court did not prohibit his...
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