U.S. v. Maniktala

• Decision Date: 21 May 1991
• Docket Number: No. 1505,D,1505
• Citation: 934 F.2d 25
• Parties: UNITED STATES of America, Appellee, v. Rajindar K. MANIKTALA, Defendant-Appellant. ocket 90-1557.
• Court: U.S. Court of Appeals — Second Circuit

Page 25

934 F.2d 25

UNITED STATES of America, Appellee, v. Rajindar K. MANIKTALA, Defendant-Appellant.

No. 1505, Docket 90-1557.

United States Court of Appeals Second Circuit.

Argued April 16, 1991.

Decided May 21, 1991.

Mark F. Pomerantz, Rogers & Wells, New York City (Thomas J. Lilly and George J. Szary, of counsel) for defendant-appellant.

Edward R. Broton, Asst. U.S. Atty., Syracuse, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., for N.D. N.Y.) for appellee.

Before LUMBARD, FEINBERG and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Defendant Rajindar Maniktala appeals from a judgment entered in the United Maniktala was president of Maniktala Associates ("MA"), an engineering firm engaged in consulting work with its principal place of business in Liverpool, New York. In 1986 defendant's firm acquired a controlling interest in another engineering consulting firm, William Harrington Associates ("WHA"), a Maryland-based operation. In July 1987, the County of Onondaga, New York, awarded a contract to WHA, the Maryland operation, to perform engineering work for a landfill site located in New York. Because of the corporate relationship between MA and WHA, all billing and bookkeeping were processed through defendant's office in Liverpool, New York.

States District Court for the Northern District of New York (Howard G. Munson, Judge) following a jury verdict convicting him on fifteen counts of mail fraud. 18 U.S.C. Sec. 1341. The district court granted a post-trial motion for a judgment of acquittal, but only as to one count of the indictment. Fed.R.Crim.P. 29(c). On August 7, 1990 the court imposed concurrent sentences on the remaining fourteen counts of five months incarceration, to be followed by a two-year term of supervised release, the first five months of which is to be served in a half-way house or community treatment center. Defendant was also fined $32,942.

In August 1989, a federal grand jury handed up an indictment charging Maniktala with fifteen counts of mail fraud. The thrust of the government's case is that defendant overbilled Onondaga County by more than $33,000 by altering the time sheets signed by WHA workers to add approximately 690 bogus hours.

In proof of its case, the government presented three sets of time sheets that ideally should have been identical, but were not. The first set contained the original time sheets filled out in pencil by the WHA workers (curiously, the requirement that this set be filled out in pencil seems to have been imposed by MA after it took control of WHA). These "pencil originals," although filled out in Maryland where the workers were located, were shipped to the defendant's office in Liverpool, New York. They were admitted into evidence at trial as the "200 series" of exhibits, i.e., as exhibits 201, 202, etc.

Before the "pencil originals" were shipped to Liverpool, the workers made photocopies that were kept in Maryland, and these copies were admitted as the "100 series." The final set of time sheets, marked as the "300 series," was the set actually included with the bills that MA sent to Onondaga County as proof of the time expended on the project. The evidence showed that the times recorded on the 300 series jibed with those appearing on the pencil originals (the "200 series"), but did not square with the Maryland photocopies of the pencil originals (the "100 series"). Obviously, someone had tampered with the "200 series."

Nine workers at WHA testified that the Maryland photocopies (the "100 series") were accurate and that the changes made in the pencil originals (the "200 series") and then appearing in final form in the bills submitted to Onondaga County (the "300 series") were neither made nor authorized by them. The government's case consisted primarily of tracking the paper trail through the various series, and, by process of elimination, seeking to prove that it was the defendant who made the corrupt changes in Liverpool.

Before trial, defense counsel made a written request for discovery, stating that his "initial interest is in the time sheets." The government provided copies of the 100, 200 and 300 series of time sheets that it planned to use at trial. During the trial testimony of Lynn Lyons, an accounting clerk at MA, it became evident that yet a fourth series of time sheets was kept, that it had been turned over to the government, but was never passed along to the defense.

The fourth series was created when suspicion began to fester among company workers in both Maryland and Liverpool that defendant might be doctoring time sheets. This hunch prompted Victor Basile, the MA company comptroller in Liverpool, to instruct Lyons that she should start making copies of the time sheets before, as well as after, they were presented At this critical juncture in the trial, defense counsel stated to the court that he had never seen the fourth series and requested its production. The prosecutor, in the belief that he had already produced all documents in the government's possession and that defendant, thus, already had copies of the fourth series, stated on the record: "I have no objection to that. I don't have them right here, they are in my office. If he needs them right now I will have to go get them but if he can continue, I can give them to him during the lunch break."

to the defendant for approval. Lyons testified that she did so, and turned the extra copies over to Victor Basile. When questioned at trial on the whereabouts of the extra copies, Basile testified that he had surrendered them to the government.

During the luncheon recess, the prosecutor advised defense counsel that the government did not possess any fourth series of time sheets and, moreover, that he believed everything Basile had provided to the government had already been produced in pre-trial discovery. Defense counsel did not bring this new development to the court's attention, did not seek a continuance and did not attempt to pursue discovery of the fourth series before the jury verdict. In March 1990, after Maniktala's conviction, but while post-trial motions were still pending, the government finally discovered the fourth series during an office move. Relying principally on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defense counsel seized upon the belated production to move for a new trial.

A page-by-page comparison of the time sheets in the fourth series with the forty-seven government time sheets admitted into evidence established that one sheet was not altered by the defendant. The government conceded that Lynn Lyons added one billable hour to the Onondaga project on that one time sheet.

The district court refused to grant a new trial premised upon the government's alleged discovery abuse, explicitly refraining from making a determination as to the materiality of the fourth series under Brady. In the court's view "defendant cannot prevail because, in brief, he did not pursue the matter to the point of non-disclosure and because he seeks redress for a failed trial tactic." Defendant, according to the court, deliberately elected not to pursue discovery of the fourth series, choosing instead to argue to the jury that the missing Basile fourth series raised a reasonable doubt. In a motion for reconsideration, defense counsel protested that, based upon his luncheon recess conversation with the prosecutor, he believed--and had every right to believe--that the government did not possess the Basile copies of the fourth series. The district court's response was pointed and unequivocal: "With all due deference to defense counsel for whom the court has the utmost respect, the court finds that the present position taken by defense counsel is untenable."

On appeal, defendant argues: (1) that the government's failure to produce documents in violation of its statutory obligation warrants a new trial; and (2) that the district court's charge on mens rea and specific intent amounts to plain error. For the reasons set forth, we affirm.

DISCUSSION

I. Production of Documents

In pressing his post-trial discovery claims before the district court, defendant focused on a Brady violation. We note at the outset that defendant has made a calculated shift of theories for purposes of this appeal. Maniktala now grounds his claim for a new trial on the government's breach of Federal Rule of Criminal Procedure 16(a)(1)(C). Defendant therefore has abandoned any Brady claim on appeal. Fed.R.App.P. 28(a); see Stein v. Board of New York, 792 F.2d 13, 18 (2d Cir.1986) (issue waived when rejected by district court but not raised on appeal), cert. denied, 479 U.S. 984, 107 S.Ct. 572, 93 L.Ed.2d 576 (1986); see also Maynard v. Havenstrite, 727 F.2d 439, 440 (5th Cir.1984) (appellant did not argue "other issues that were before the district court and they are deemed abandoned"). By pursuing this tactic, defendant Recognizing that Brady, though not a discovery rule, affects discovery through its interplay with Rule 16, we will consider the merits of defendant's Rule 16 appeal. See United States v. Starusko, 729 F.2d 256, 262 (3rd Cir.1984) ("Unlike Rule 16 and the Jenks Act, however, Brady 'is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation' " and is not violated unless the government's nondisclosure infringes upon a defendant's right to a fair trial.) (quoting United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979)); see also United States v. Thevis, 84 F.R.D. 47, 50 (N.D.Ga.1979) ("Not only the scope of disclosure, but the timing of the allowed discovery turns on the interplay of Brady's constitutional command upon the statutory mandates of Rule 16 and the Jenks Act.").

creates another obstacle to this appeal: because he did not make the Rule 16 argument before the district court he has, at least arguably, failed to preserve this claim for our review except...