U.S. v. Murdock, No. 76-1435

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore AINSWORTH, CLARK and RONEY; RONEY
Citation548 F.2d 599
Parties77-1 USTC P 9289 UNITED STATES of America, Plaintiff-Appellee, v. Church E. MURDOCK, Jr., Defendant-Appellant. Summary Calendar. *
Decision Date11 March 1977
Docket NumberNo. 76-1435

Page 599

548 F.2d 599
77-1 USTC P 9289
UNITED STATES of America, Plaintiff-Appellee,
v.
Church E. MURDOCK, Jr., Defendant-Appellant.
No. 76-1435
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
March 11, 1977.

Church E. Murdock, Jr., pro se.

Wayman G. Sherrer, U. S. Atty., Melton L. Alexander, Asst. U. S. Atty., Birmingham, Ala., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Chief

Page 600

Appellate Sect., Robert E. Lindsay, Atty., Wynette J. Hewett, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Dr. Church E. Murdock appeals his conviction for willfully failing to file federal income tax returns for three years. The sole issue presented by Murdock's brief is this: "whether the trial judge erred by withholding documents from defendant in evidentiary hearing which could have sustained his motion to quash indictment on grounds of selective and discriminatory prosecution." Finding no error in the rulings of the trial judge, we affirm.

Defendant admittedly refused to file income tax returns although he had a gross income in excess of $23,000 for each of the three years in question. He filed a motion to quash the indictment for such refusal, however, on the ground that he had been singled out for selective and discriminatory prosecution for "asserting his First Amendment Religio/Political Freedoms to be a Protestant or Protestor." Defendant contends that his refusal to file a return is a form of protest based on religious convictions and that he was singled out for selective prosecution for exercising the rights and freedoms afforded him by the First Amendment.

In connection with the motion to quash the indictment and the hearing on the motion, Murdock requested discovery of numerous Government documents. The Government produced some of the documents, agreed to an in camera inspection of others, and was relieved from producing some information by court order. After an in camera inspection, the court allowed defendant to see some of the material but denied him access to certain documents.

The Federal Rules of Criminal Procedure govern this case. Rule 16(a)(1)(C) provides that discovery of documents in possession of the Government will be allowed the defendant if they are "material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." The kind of documents discoverable are generally those that relate to the defendant and the charge against him, not to third persons.

To avoid the use of a discriminatory prosecution defense as a means of obtaining information to which the defendant is otherwise not entitled, other circuits have held that a defendant must prove a "colorable entitlement" to the defense before discovery is allowed. United States v. Oaks, 508 F.2d 1403 (9th Cir. 1974), aff'd following remand, 527 F.2d 937 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973). This appears to be a sound rule for this Court to follow. To hold otherwise would encourage the assertion of such defense, no matter how spurious, as a means of burdening criminal trials with massive discovery of material completely irrelevant and immaterial to the defendant's case. The test is materiality, and the court is entitled to have the defendant demonstrate the materiality of what he seeks by proving a colorable entitlement to the defense before discovery is allowed.

Tested by this standard, the defendant fails to show error in the rulings of the trial court. First, a review of the record reveals that defendant has failed to present evidence tending to show that others similarly situated have not generally been prosecuted. Second, there is no showing that the Government's prosecution of him was selective, invidious, in bad faith, or based on impermissible considerations such as race, religion, or his exercise of constitutional rights. See United States v. Smith, 523 F.2d 771, 782 (5th Cir. 1975) (U.S. appeal pending); United States v. Berrios, supra, 501 F.2d at 1211-1212.

Page 601

To the contrary, the record, rather than appearing neutral on the matter, tends to show that defendant was not singled out for any reason other than his failure to comply with the law. The investigation was initiated when a computer print-out showed that defendant, a surgeon, had not filed a tax return, although he had filed in previous years. The Internal Revenue Service decided to prosecute only after a special agent determined that defendant's income was sufficient to require him to file a return, that defendant had not filed a return, and that he did not intend to file a return.

The trial court carefully considered the...

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53 practice notes
  • US v. Bradley, Crim. No. 1:CR-92-200-01
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 3, 1994
    ...entitlement to the defense of discriminatory prosecutions," Berrigan, 482 F.2d at 181 (citations omitted); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); A......
  • Bristol-Meyers Co. v. F. T. C., BRISTOL-MEYERS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 19, 1978
    ...holding to the NLRB context. 534 F.2d at 492. I believe that holding should not be so limited. I also agree with United States v. Murdock, 548 F.2d 599 (5th Cir. 1977), which involved an appeal from a criminal tax We hold that the discovery provisions of the Federal Rules of Criminal Proced......
  • Robbins Tire & Rubber Co. v. N.L.R.B., No. 76-2099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...of interference. 18 The Board has the burden of proving any such harm. 5 U.S.C. § 552(a)(4) (B). 19 We do not interpret U. S. v. Murdock, 548 F.2d 599, 602 (CA5, 1977), as requiring any different conclusion here. The Murdock panel, dealing with a FOIA plaintiff being prosecuted for criminal......
  • Wayte v. United States, No. 83-1292
    • United States
    • United States Supreme Court
    • March 19, 1985
    ...right to discovery if he can show that he has a "colorable basis" for a selective prosecution claim. See, e.g., United States v. Murdock, 548 F.2d 599, 600 (CA5 1977); United States v. Cammisano, 546 F.2d 238, 241 (CA8 1976); United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974); United ......
  • Request a trial to view additional results
52 cases
  • US v. Bradley, Crim. No. 1:CR-92-200-01
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 3, 1994
    ...entitlement to the defense of discriminatory prosecutions," Berrigan, 482 F.2d at 181 (citations omitted); United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir.1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974); A......
  • Bristol-Meyers Co. v. F. T. C., BRISTOL-MEYERS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 19, 1978
    ...holding to the NLRB context. 534 F.2d at 492. I believe that holding should not be so limited. I also agree with United States v. Murdock, 548 F.2d 599 (5th Cir. 1977), which involved an appeal from a criminal tax We hold that the discovery provisions of the Federal Rules of Criminal Proced......
  • Robbins Tire & Rubber Co. v. N.L.R.B., No. 76-2099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...of interference. 18 The Board has the burden of proving any such harm. 5 U.S.C. § 552(a)(4) (B). 19 We do not interpret U. S. v. Murdock, 548 F.2d 599, 602 (CA5, 1977), as requiring any different conclusion here. The Murdock panel, dealing with a FOIA plaintiff being prosecuted for criminal......
  • Wayte v. United States, No. 83-1292
    • United States
    • United States Supreme Court
    • March 19, 1985
    ...right to discovery if he can show that he has a "colorable basis" for a selective prosecution claim. See, e.g., United States v. Murdock, 548 F.2d 599, 600 (CA5 1977); United States v. Cammisano, 546 F.2d 238, 241 (CA8 1976); United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974); United ......
  • Request a trial to view additional results
1 books & journal articles
  • Pre-Trial
    • United States
    • Environmental crimes deskbook 2nd edition Part Two
    • June 20, 2014
    ...or to enlarge the scope of discovery beyond that already provided by the Federal Rules of Criminal Procedure.” United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977); see also United States v. U.S. District Court, Central District of Cal., L.A., 717 F.2d 478 (9th Cir. 1983); United Sta......

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