U.S. v. Miller

• Decision Date: 26 January 1976
• Docket Number: No. 74--3019,74--3019
• Citation: 529 F.2d 1125
• Parties: 76-1 USTC P 9228 UNITED STATES of America, Plaintiff-Appellee, v. Ollie H. MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1125

529 F.2d 1125

76-1 USTC P 9228

UNITED STATES of America, Plaintiff-Appellee, v. Ollie H. MILLER, Defendant-Appellant.

No. 74--3019.

United States Court of Appeals Ninth Circuit.

Jan. 26, 1976.

Jerald W. Newton (argued), Beverly Hills, Cal., for defendant-appellant.

Leonard Sharenow, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before HUFSTEDLER, CHOY and WALLACE, Circuit Judges.

CHOY, Circuit Judge:

Miller appeals from a conviction on nine counts for preparing false income tax returns for his clients and for aiding in the presentation of false documents to the Internal Revenue Service, in violation of 26 U.S.C. § 7206(2). We affirm.

Facts

In 1973 appellant, an accountant, was engaged in the business of preparing income tax returns. Miller generally would meet alone with each client and ask for or receive information from the client on expenses which might be the basis for deductions. In due course Miller would dictate certain figures and information to his secretary to be written or typed on the client's tax return.

The information given by the client to Miller and the information prepared by Miller for use on the return, however, were not always the same. At the trial, each of five of appellant's former clients testified that the tax return prepared by Miller contained deductions that were false and that at no time had the client furnished false deduction information. Each of these clients also stated that, after receiving an IRS audit letter, he went to Miller who then had certain documents prepared. These documents, which purported to be letters from various companies, but which undisputedly were false, referred to certain finance expenses, charitable contributions, or other financial transactions entered into by the client.

Appellant's primary defense strategy at trial was to demonstrate by circumstantial evidence that a part-time employee, Mills, and not Miller, was responsible for the preparation of the five false returns and supporting documents upon which the indictment was based. Mills was responsible for the preparation of about 25 per cent of the returns typed by one of Miller's secretaries. At trial Mills' character was discredited by a defense witness, Willie Mae Waddell, who testified that Mills prepared her income tax return which contained false deduction information and that Mills then supplied false documentary proof to back up the claimed deductions when the IRS challenged them.

Waddell's testimony, revealing as it was about Mills' modus operandi, did not implicate Mills in the preparation of any of the five false returns which were the subject of Miller's indictment. In fact, no evidence was produced at trial which tended to show that Mills rather than Miller was responsible for the preparation of the five returns and their supporting documents.

Suppression of Exculpatory Evidence

Appellant challenges his conviction on several grounds, but only one merits discussion. According to Miller, the Government ran afoul of the Brady rule by suppressing until just before the close of Miller's case the fact that Mills three weeks earlier had admitted to Government agents that he and not Miller had prepared the Waddell return and another false return (hereinafter the 'Lopez return'). Neither the Waddell nor the Lopez return, however, formed the basis for any counts in the indictment for which Miller was on trial.

It is a well settled rule that 'suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Valdivia, 492 F.2d 199, 205 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

Several times before and during the trial Miller specifically requested all Brady material in the possession of the Government or its agents, and the only significant Brady question raised here is whether the evidence suppressed was material to Miller's guilt.

To determine the materiality of the evidence in this case, it is necessary to review the circumstances surrounding its disclosure at trial. Miller had originally been indicted on 23 counts, but just prior to June 18, 1974, the original trial date, two witnesses--Waddell and Lopez-- each repudiated a prior sworn affidavit that Miller had prepared a false income tax return and false supporting documents. While absolving Miller, each implicated Mills in the preparation of the false materials. Because both Waddell and Lopez told the Assistant United States Attorney that they had already given their new statement to Miller's counsel, the Government never bothered to relay the new information to Miller. No claim is made by Miller that this evidence was suppressed by the Government; and, in fact, Miller's counsel knew about the new Waddell and Lopez testimony even before the Government learned of it.

With Waddell's and Lopez's new testimony in hand, the Government dismissed all counts of the original indictment which had been based on allegations contained in the witnesses' prior affidavits. The Government then confronted Mills with Waddell's and Lopez's statement, and he admitted that Waddell and Lopez were telling the truth.

The Government did not inform Miller's counsel of the Mills confession until towards the close of the presentation of Miller's defense at trial. At that time the court gave Miller's counsel an opportunity to confer not only with his client, but also with Mills and informed counsel that he would grant a continuance if counsel deemed it necessary. After conferring with his client, Miller's counsel elected not to place Mills on the stand and did not move for a continuance.

We agree with the trial court that Mills' statement was in part exculpatory material and should have been turned over to the defense. The fact that the Government concluded in good faith that the evidence would not be very helpful to Miller does not excuse its failure to disclose the statement. The prosecutor is not merely an advocate for a party; he is also an administrator of justice. ¹ Considering the vast investigatory resources and powers at the Government's disposal, an elemental sense of fair play demands disclosure of evidence that in any way may be exculpatory. ² If the Government, upon request by the accused, has serious doubts about the usefulness of the evidence to the defense, the Government should resolve all doubts in favor of full disclosure. Such a rule appears particularly appropriate since disclosure could cause no harm to the Government while suppression could very well prejudice the defendant.

The Government's misconduct in failing to promptly disclose exculpatory evidence, however, does not automatically warrant reversal of a defendant's conviction. United States v. Diaz-Rodriquez, 478 F.2d 1005, 1008 (9th Cir.), cert. dismissed, 412 U.S. 964, 93 S.Ct. 3024, 37 L.Ed.2d 1013 (1973). For two separate reasons, Brady does not require reversal in this case. First, unlike Brady, there was no complete suppression of the exculpatory evidence. Appellant learned of the Mills statement at trial, albeit not until towards the close of his defense. Thus, our inquiry on appeal is not whether the evidence, had it been disclosed, might reasonably have affected the jury's judgment on some material point. Rather, it is whether the lateness of the disclosure so prejudiced appellant's preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial. United States v. Hibler, 463 F.2d 455, 459 (9th Cir. 1972). The trial judge offered Miller a continuance and to bring Mills in for an interview by Miller's counsel, but Miller deemed both not necessary. Since Mills was known to appellant at all times and appellant was aware three weeks before trial of Waddell's and Lopez's statement implicating Mills, we do not see how the late disclosure prejudiced Miller. This is not a case where the evidence, if promptly disclosed, would have opened the door for the defense to new witnesses or documents requiring time to be marshalled and presented. See United States v. Baxter, 492 F.2d 150, 174 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

Second, the evidence would not have been favorable to Miller. Mills' statement itself would have been of little or no value at trial because the jury already knew from Waddell's undisputed testimony that Mills and not Miller had prepared her false return. The statement was merely cumulative evidence. Further, the full statement given by Mills to the Government, if presented at trial, would have harmed Miller more than helped him. In addition to admitting responsibility for the Waddell and Lopez returns, Mills' statement implicated Miller in the preparation of other false returns and denied that he (Mills) had anything to do with the preparation of the five tax returns which constituted the heart of the Government's case against Miller. The trial judge recognized the dubious value of Mills' statements, ³ and Miller's failure to call Mills to the stand and use the statement indicates that he also viewed it as a two-edged sword. Accordingly, we find that the suppressed evidence would not have been of material aid to Miller at trial. See United States v. Valdivia, supra, at 205--06; United States v. Baxter, supra, at 174--75.

Other Claims of Error

Miller's other claims of error are without merit. Contrary to his argument, Miller is not entitled to an open inspection of the government files. Baxter, supra, at 173.

The district court properly instructed the jury that it could convict the defendant on the uncorroborated testimony of an accomplice, if believed, United States v. Castro, 476 F.2d 750 (9th Cir. 1973), and...