U.S. v. Lyman

• Decision Date: 17 November 1978
• Docket Number: No. 77-4007,77-4007
• Citation: 592 F.2d 496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald G. LYMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 496

592 F.2d 496

UNITED STATES of America, Plaintiff-Appellee, v. Ronald G. LYMAN, Defendant-Appellant.

No. 77-4007.

United States Court of Appeals, Ninth Circuit.

Nov. 17, 1978.

As Amended on Denial of Rehearing and Rehearing En Banc Feb. 21, 1979.

Michael Tryon (argued), of McGroder & Tryon, P.C., Phoenix, Ariz., for defendant-appellant.

Mark S. Davidson, Atty. (argued), Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before TRASK and WALLACE, Circuit Judges, and HOFFMAN, ^* District Judge.

WALLACE, Circuit Judge:

Lyman appeals his conviction of conspiracy to transport in interstate commerce over $5,000 taken by fraud in violation of 18 U.S.C. § 371. ¹ His appeal challenges the conduct of the prosecution and a key witness, Justheim; changes in and conformity at trial to the indictment against him; the naming of unindicted coconspirators; proof of a single conspiracy; and the failure of the court to give a requested instruction. We affirm.

During the trial, the government introduced evidence to the effect that Lyman and two government witnesses, Bradshaw and King, participated in a scheme involving their corporation (New Era) to defraud investors, among them Justheim and Watson, by false representations about the worth of ore from Llano, Texas (Llano ore), and the ability of their process (the New Era process) to extract precious metals from the ore. The scheme involved fraudulent tests of the ore for the investors at which the conspirators "salted" the ore to make it appear more valuable to the investors. Evidence also indicated that the conspirators made false representations about the existence of purchase orders for the ore.

Lyman contended that he believed that the New Era process could analyze precious metal content; that he did not know Bradshaw was salting the ore; and denied that he, Bradshaw and King had agreed to do so.

I

In his closing remarks to the jury, the prosecutor stated that Bradshaw was a good witness because he had kept notes in a diary "to refresh his recollection about dates and so forth." Following the prosecutor's argument, Lyman's counsel moved for a mistrial and for discovery of the diary, stating that he had no knowledge of its existence. Later the same day, following the court's instructions to the jury, Lyman's counsel requested production of the diary on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500 (1976). The trial judge stated that he did not know "if there even exists a diary and I'm not going to take it up right now." On Monday, the next court day, the jury arrived at a verdict, and thereafter the district judge asked Lyman's attorney if he had "anything else for the record at this time." Counsel replied he did not.

On appeal, Lyman asserts that if there is a diary, there should be a remand to the district court for a determination of whether it constituted material that should have been disclosed to the defense. There is, however, no court ruling for us to review. Counsel failed to pursue the question and obtain a decision. Therefore, we consider the matter to have been abandoned. Cf. United States v. Mireles, 570 F.2d 1287, 1290 (5th Cir. 1978) (where counsel neither objected to admission of evidence previously sought to be suppressed, sought a directed verdict of acquittal, nor requested a ruling on motion to suppress, and no ruling was ever made, it was "clear that defendant effectively abandoned the motion to suppress").

II

As a separate challenge pertaining to this incident, Lyman states that the diary remark to the jury was improper prosecutorial conduct. We must first decide whether Lyman's objection to this remark was timely so as to have preserved the question for appeal. The government points out that Lyman's counsel failed to object to the diary remark until the conclusion of the rebuttal argument. We see no reason, however, to require an interruption of the prosecutor's argument. "(W)e recognize the tactical considerations that militate against interrupting an adversary's closing argument." United States v. Trutenko, 490 F.2d 678, 680 (7th Cir. 1973). Counsel's motion for a mistrial following the rebuttal argument in which the remark occurred was sufficient to preserve the point for appeal. See United States v. Williams, 503 F.2d 480, 485 (8th Cir. 1974); United States v. Perez, 491 F.2d 167, 173 (9th Cir.), Cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); United States v. Zumpano, 436 F.2d 535, 539 (9th Cir. 1970). ²

The government concedes the remark about the diary was improper. In determining whether this requires reversal, we employ the test for nonconstitutional errors and look to whether it is more probable than not that the error materially affected the verdict. United States v. Dixon, 562 F.2d 1138, 1143 (9th Cir. 1977), Cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977). ³ The effect of the remark, if any, was to bolster the credibility of Bradshaw. His testimony had already been backed up by King, although the defense had sought to discredit King's testimony during the trial. In addition, Lyman's counsel failed to request a curative instruction. Reviewing the case as a whole, we conclude that it was more probable than not that the remark about the diary did not materially affect the verdict.

Lyman makes a number of additional claims of prosecutorial misconduct, including a question asked of witness Watson as to whether the $100,000 he had loaned to Buchanan, a codefendant, was used for the purpose for which it was loaned. ⁴ A timely objection was made. Watson answered that he did not check on what became of the money, and, therefore, as the trial court pointed out, all that was before the jury was Watson's lack of knowledge. The trial judge immediately instructed the jury to disregard both the question and the answer. While the question should not have been asked, it probably did not materially affect the verdict.

Lyman also accuses the prosecutor of misconduct due to his question of Lyman as to whether he recalled Bradshaw referring to his, Bradshaw's, resume as "flowered" and whether he recalled hearing a Dr. Werner tell him he would go to Llano to draw some samples for New Era to test. These points were sufficiently preserved for appeal. Lyman contends there was no evidence in the record to support these questions. Even if we assume there was error, we conclude it probably did not materially affect the verdict.

Lyman further asserts that the witness Justheim interjected various improper remarks to the jury during his testimony. At one point he referred to the alleged conspirators as "dirty crooks," but the jury reported it had not heard the remark. Similarly, a juror to whom Justheim spoke while he was on the stand reported that she had not heard what he was saying. We cannot assume, as Lyman wishes us to, that other jurors heard him. There was no error pertaining to Justheim's testimony.

III

Lyman next challenges the deletion of 20 of the 24 overt acts alleged in the indictment, and claims that the government's evidence did not conform to the allegations in the indictment.

In Count I of the indictment, the grand jury charged a conspiracy and alleged at least 24 overt acts in furtherance of that conspiracy. In response to the government's pretrial motion, the district court struck 20 of the overt acts and the indictment was retyped. Lyman characterizes the trial court's action as an amendment to the indictment violating his Fifth Amendment right to indictment by a grand jury. We disagree.

While the court "may not by any means . . . alter the material and essential nature of an indictment or broaden the offense charged," United States v. Dawson, 516 F.2d 796, 804 (9th Cir.), Cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975), the court may withdraw a portion of the charge if the offense charged remains the same. See Salinger v. United States, 272 U.S. 542, 548-49, 47 S.Ct. 173, 71 L.Ed. 398 (1926); United States v. Walters, 477 F.2d 386, 388 (9th Cir.), Cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973). Among the elements required to support a conspiracy conviction is proof of only one overt act in furtherance of the illegal purpose. United States v. Feola, 420 U.S. 671, 694, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Oropeza, 564 F.2d 316, 321 (9th Cir. 1977), Cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978). Thus, the striking of overt acts in the indictment neither altered the nature of the indictment nor broadened the offense charged. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); Thomas v. United States, 398 F.2d 531, 536-40 (5th Cir. 1967). The acts were properly stricken as surplusage if the defendant was not prejudiced by such action. See United States v. Abascal, 564 F.2d 821, 832-33 (9th Cir. 1977), Cert. denied, 435 U.S. 942, 953, 98 S.Ct. 1521, 1583, 55 L.Ed.2d 538, 804 (1978). Lyman asserts no prejudice. Such deletion may occur before trial. See Thomas v. United States, supra, 398 F.2d at 539.

Nor was there a material variance between the indictment and the proof during trial of the conspiracy alleged in Count I. We have held that in order to constitute grounds for reversal, a variance between proof and indictment must affect the substantial rights of the defendant by preventing him from presenting his defense properly, taking him unfairly by surprise, or exposing him to double jeopardy. United States v. Bolzer, 556 F.2d 948, 950 (9th Cir. 1977); United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), Cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976). Lyman asserts none of these grounds, but rather claims that the variance constituted an improper amendment to...