United States v. Goodrich

• Decision Date: 08 March 1974
• Docket Number: No. 73-2633,73-2556.,73-2633
• Citation: 493 F.2d 390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Elroy GOODRICH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rex LeFEVRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 390 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Donald Elroy GOODRICH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rex LeFEVRE, Defendant-Appellant.

Nos. 73-2633, 73-2556.

United States Court of Appeals, Ninth Circuit.

March 8, 1974.

Richard J. Dowdall, Robert A. Schuler (argued) Johnson, Hayes & Dowdall, Ltd., Tucson, Ariz., for defendant-appellant in 73-2633.

Fred T. Scanlan (argued) Scanlan, Schiesel & Jurkowitz, Tucson, Ariz., for defendant-appellant in 73-2556.

Sarah Ann Bailey, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Ann Bowen, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before BROWNING and WALLACE, Circuit Judges, and WILLIAMS,^* District Judge.

OPINION

SPENCER WILLIAMS, District Judge:

Defendants Goodrich and LeFevre appeal from a conviction by a jury of conspiring to transport in foreign commerce an aircraft knowing the same to be stolen. 18 U.S.C. § 2312.

Defendants were initially charged with flying a stolen piper Axtec from Tucson, Arizona to Sonora, Mexico on June 2, 1972. Subsequent to this indictment their counsel discussed a disposition of the charge with the prosecuting Assistant United States Attorney. Although the briefs differ on this point (appellants assert that the AUSA promised "if you get Mr. LeFevre out of Mexico, I will dismiss the case," and the appellee asserts only that the AUSA promised ". . . if I become convinced the defendant is innocent of the charge I will seek to have the indictment dismissed.") an agreement was reached that if LeFevre could prove he was not in Mexico the prosecutor would dismiss the case. LeFevre evidently proved through the testimony of six witnesses, that he could not have been in Mexico June 2. Thus on February 26, 1973, the government dismissed the indictment, indicating it had new information that the overt act had been committed June 3. Thereafter the grand jury returned a new indictment identical to the first except charging that the overt act occurred June 3. Prior to the trial, defendants filed motions objecting to the dismissal of the first indictment on the basis it was dismissed without their knowledge and requesting dismissal of the second indictment on the grounds that the United States had promised to dismiss the case upon the establishment of an alibi. Although the trial court's orders are not included in the record presumably these motions were denied.

During the trial several references were made to June 2 as being the date of the overt act. LeFevre presented alibi witnesses as to both dates. He testified that he placed his family on a commercial flight to Utah on the morning of June 2, making impossible his presence in Mexico on that date. He also testified and introduced telephone records to show that on the evening of June 2 he placed a call from his home in Tucson to his wife at his brother-in-law's home in Draper, Utah. This alibi testimony as to June 2 was never controverted.

In reliance however on the government charge that the overt act occurred on June 3, he elected to not call the additional six witnesses who would have further substantiated his presence in Tucson on June 2.

LeFevre's alibi evidence as to June 3 consisted of the testimony of one eye-witness, a Mrs. Bryson, and an entry in a church log which indicated he worked at the church on that date. It was argued in contravention of this alibi that the eye-witness could have been in error and that the entry in the log could have been entered at a later date. In fact, one rebuttal witness testified that LeFevre had informed her of his plan to do so.

The judge instructed the jury in pertinent part that "The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged." Appellants raise two points on appeal: (1) the second indictment should have been dismissed since it breached the promise of the government to dismiss the case; (2) the trial court's instruction on the time of the offense was in error in light of a possible alibi.

The government contends that the appeal of the first issue should be dismissed without consideration of the merits, in accordance with the holding in United States v. Martinez, 429 F.2d 971, 976 (9th Cir. 1970). In Martinez the defense alleged without specific contentions or record references that the co-defendant's counsel's opening remarks were prejudicial to the defendant. While we agree with Martinez that such general allegations do not warrant consideration on appeal, there are in this case specific contentions and record references which raise important questions of law.

Turning to the merits, appellants concede there is no law directly on point but analogizes their situation to a series of cases enforcing breached government "deals" where defendants were promised dismissals, immunity or leniency. In State v. Davis, 188 So.2d 24 (Fla.App. 1966), the court enforced a promise not to prosecute if the defendant submitted himself to a polygraph test which showed him to be telling the truth concerning his innocence. The test exonerated the defendant, and the appellate court upheld the trial court's dismissal of the attempted prosecution finding that "this was a pledge of public faith — a promise made by state officials — and one that should not be lightly disregarded." Also, in Smith v. United States, 321 F.2d 954, 955 (9th Cir. 1963), the court held that a government promise that a plea to a second charge would not result in a sentence longer than that already imposed for the first plea, and that the sentences would run concurrently, was violated when the defendant was sentenced to twice the time on the second plea.

These cases along with several others similarly cited by the appellants (concerning breached promises of immunity, or fraudulently induced guilty pleas) all generally stand for the proposition that when the prosecution makes a "deal" within its authority and the defendant relies on it in good faith, the court will not let the defendant be prejudiced as a result of that reliance.

In this case there seems to be some question as to what, exactly, the bargain was.

Even if the Assistant United States Attorney promised, as the appellants assert ". . . if you get Mr. LeFevre out of Mexico, I will dismiss the case," it is not at all clear that the defendants did "get Mr. LeFevre out of Mexico." The appellants merely convinced the government that Mr. LeFevre was not in Mexico on June 2, and since further investigation put him in Mexico June 3, prosecution of an overt act on that date would not abrogate either interpretation of the agreement.

This case is also distinguishable from those cited by the appellants in that here they did nothing to jeopardize themselves or waive any rights in reliance on the prosecution's promise. They merely came forth with positive, beneficial evidence which established LeFevre's alibi for June 2 and did not waive their Fifth Amendment rights such as by submitting themselves to polygraph tests or entering guilty pleas.

The question of whether the trial court committed error in giving the...