U.S. v. Minsky

• Decision Date: 20 August 1992
• Docket Number: No. 91-5861,91-5861
• Citation: 963 F.2d 870
• Parties: UNITED STATES of America, Appellee, v. Gerald L. MINSKY, Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 870

963 F.2d 870

UNITED STATES of America, Appellee, v. Gerald L. MINSKY, Appellant.

No. 91-5861.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1992.

Decided May 7, 1992.

Rehearing Denied Aug. 20, 1992.

Seymour Glanzer (argued), Washington, D.C.; Patrick H. Molloy, and Alagia, Day, Marshall, Mintmire & Chauvin, Louisville, Ky.; and Marvin B. Segal, New York City (briefed), for appellant.

Michael R. Baer, Asst. U.S. Atty. (argued), and Karen Caldwell, U.S. Atty. (briefed), Lextington, Ky., for appellee.

Before: KEITH, Circuit Judge, and LIVELY and TIMBERS, ^* Senior Circuit Judges.

TIMBERS, Senior Circuit Judge.

Appellant Gerald L. Minsky appeals from a judgment entered April 23, 1991 in the Eastern District of Kentucky upon a jury verdict of guilty on charges of mail and wire fraud and conspiracy stemming from the killing of a thoroughbred horse for an insurance payout, in violation of 18 U.S.C. §§ 1341, 1343 and 371 (1988).

Minsky contends on appeal that various constitutional and statutory errors at trial were prejudicial in impairing his ability to impeach an important government witness. His primary contentions are: (1) that the court's holding an ex parte bench conference during trial without defense counsel being present violated his due process rights and his right to counsel; (2) that the government's refusal to disclose information contained in certain FBI reports violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) that the court's refusal to order production of prior recordings of two witness' statements violated the Jencks Act, 18 U.S.C. § 3500 (1988). We shall consider each of these contentions seriatim.

For the reasons that follow, we reverse appellant's conviction and remand the case for a new trial.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

On November 7, 1990, Minsky was indicted on three counts of mail and wire fraud and conspiracy arising from the killing of a thoroughbred horse in order to collect insurance proceeds. The indictment charged that in November 1987 Minsky conspired with Dr. Joseph Brown, a Kentucky dentist, and Robert West, a Kentucky bloodstock agent, to inject a lethal dose of insulin in McBlush, a racehorse owned by Minsky and insured for $20,000 by Lloyd's of London.

The prosecution's case against Minsky was based on the testimony of Brown and West. They agreed to testify against Minsky pursuant to a plea agreement stemming from charges that they had killed a Florida racehorse in an unrelated incident in February 1990. In exchange for their cooperation, all 1990 Florida charges against Brown and West were dropped. They plead guilty to a single conspiracy count charging the killing of McBlush. The government also agreed to move at sentencing for a downward departure under the Sentencing Guidelines to reflect their cooperation.

At trial, Brown testified that in 1985 he purchased a mare named Fran Nasra for $100,000 cash, plus a $100,000 promissory note. Six months after the sale, the $100,000 promissory note, which was secured by a lien on Fran Nasra and her offspring, was assigned to Minsky. Although Brown made some principal payments, by 1987 he still owed Minsky $50,000, plus accrued interest. He testified that Minsky continually pressured him for payment, but without success.

Minsky suggested to Brown, in an October 1987 phone conversation, that the debt would be forgiven if Brown agreed to kill McBlush. West, who had been terminated as one of Minsky's employees, testified that Minsky called him--not Brown--in September 1987 and asked West to kill McBlush. West also testified that several days later the three men engaged in a conference call during which they discussed applying the proceeds of the insurance on McBlush to reduce Brown's outstanding debt to Minsky. Brown did not refer to this call in his testimony. No telephone records were produced to confirm that this call took place. Minsky's former secretary, Diane Donase, testified that she overheard the September conference call; at sentencing, the trial judge remarked that her testimony was "too fantastic to be true," and he questioned her motives. Brown testified that after several failed attempts they killed McBlush on November 4, 1987 by injecting the horse with insulin.

On the second day of the six day trial, at the conclusion of Brown's direct testimony, Minsky moved pursuant to the Jencks Act for production of, among other things, all prior statements made by Brown and West. Minsky claims that the Jencks Act material included statements made by Brown and West to FBI agents on routine investigation forms ("FBI 302s"). The prosecution objected, arguing that neither Brown nor West had adopted or affirmed the statements in those reports after they were recorded by the investigating FBI agents, and that the reports were not used to refresh Brown's recollection prior to his testimony.

In response to the prosecution's objections, the court held an in camera review of the FBI 302s. Brown's two FBI 302s, which the court found to be "substantially identical" to his direct testimony, did contain a statement regarding a conversation between Brown and Jerry Healy, a friend of Minsky. During this conversation, Brown told Healy about injecting McBlush with insulin. Brown asked Healy to tell Minsky to "lay off" efforts to collect the outstanding debt, saying that it was his understanding that killing McBlush absolved him of any debt to Minsky. When the government questioned Healy prior to trial, Healy stated that he had no recollection of any discussion with Brown about the killing of McBlush. Healy's statement, if made known at trial, might have undermined Brown's credibility.

After a brief recess, during which the court considered Minsky's Brady and Jencks Act requests, the court held a sidebar conference with only the prosecutors present, stating that:

"The Court has reviewed the 302 materials. I have reread Presser and Nathan, and before I make my ruling, however, there is one matter I need to clear up with counsel for the United States. And this will be part of my in camera review of the materials submitted by the United States and I will ask that counsel for the United States approach the bench."

The court asked the prosecutors whether the defense had been made aware of the existence of Healy as a potential witness, or of the conversation itself, pursuant to its obligations under the Jencks Act and Brady. The prosecution responded that a polygraph test had been administered to Brown, the results of which had been given to the defense. As part of the test, Brown was questioned about his conversation with Healy. Although the test questions did not elaborate on the substance of that conversation, the test results suggested that Brown had lied. The prosecutors stated that the test results were inadmissible at trial. They nevertheless argued that, by receiving the test questions and results, the defense was adequately apprised of the existence of both Healy and his conversation with Brown. Any failure to pursue this line of defense, according to the prosecutors, was the fault of defense counsel.

Following the bench conference, the judge ordered the prosecution to recall Brown and to make clear (1) that he received no insurance proceeds for the killing of McBlush; (2) that Brown's understanding of the deal was that killing McBlush absolved him of any outstanding debt to Minsky; and (3) that after the killing, when Minsky renewed efforts to collect the debt, Brown contacted Healy. This order of the court sought to ensure that the defense was apprised adequately of any conversation between Healy and Brown, in satisfaction of both the Jencks Act and Brady.

On cross-examination, Minsky's counsel sought to undermine Brown's testimony by establishing that his incriminating testimony was given under the belief that the prosecution would treat him favorably by asking the court at the time of sentencing for a downward departure under the Guidelines. In response to counsel's questions, Brown responded that he was "pretty well locked with whatever the guidelines show" and therefore he did not anticipate any substantial reduction in sentence as a result of his cooperation. The court interrupted this colloquy by asking the prosecutors whether the case was governed by the Guidelines. When the prosecutors erroneously responded that the case was not under the Guidelines, the court instructed defense counsel to ask Brown whether he anticipated favorable treatment from the sentencing judge, to which Brown responded that he did not.

The government's entire case rested on the testimony of Brown and West. The government failed to produce any medical experts to confirm that McBlush had died from insulin; rather, medical experts testified that the cause of death seemed to be colic, an inflammation of the intestinal track unrelated to insulin which frequently caused death in horses. Minsky asserts that the government failed to establish any motive; no explanation was given why Minsky was willing to forgive a $50,000 debt upon the death of a horse insured for $20,000.

Despite these inconsistencies, Minsky was convicted. He was sentenced to 18 months incarceration, a $100,000 fine, $82,000 in restitution, $150 in special assessments, and 2 years supervised release. After entering guilty pleas, Brown and West each were sentenced to 5 year terms of probation, including a 6 month period of residency in a half-way house; and each ordered to pay $9,500 in restitution and $50 in special assessments. The absence of incarceration for Brown and West was the result of the prosecution's motion for a downward departure based on cooperation. Minsky now appeals his conviction.

II.

With this summary of the facts and prior proceedings in mind, we turn first to the claim that the ex parte bench...