United States v. Heath

• Decision Date: 01 August 1958
• Docket Number: No. 15576.,15576.
• Citation: 260 F.2d 623
• Parties: UNITED STATES of America, Appellant, v. David Ransom HEATH, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F.2d 623 (1958)

UNITED STATES of America, Appellant, v. David Ransom HEATH, Appellee.

No. 15576.

United States Court of Appeals Ninth Circuit.

August 1, 1958.

Louis B. Blissard, U. S. Atty., Edgar D. Crumpacker, Sanford J. Langa, Asst. U. S. Attys., Honolulu, Hawaii, for appellant.

Robertson, Castle & Anthony, Honolulu, Hawaii, for appellee.

Before STEPHENS, Chief Judge, and ORR and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This case arises over the dismissal of an indictment. The right of defendant to have the government produce for inspection and copying before trial documents which the trial judge found necessary for the defense of defendant and which the Internal Revenue agents had received from him with his consent has been here contested. The power of the District Court to order production of such documents to the end that defendant have a fair trial has been challenged. Finally, the key question is whether the government is by statute accorded an appeal from dismissal of indictment for inability of the prosecution to comply with the condition precedent of production and then proceed to trial.

An order was entered by the United States District Court for the District of Hawaii, dismissing an indictment charging defendant David Ransom Heath with willful attempt to evade and defeat payment of income tax due from him and his wife. This order was the ultimate result of a very complicated procedural situation, which must be unraveled before the jurisdiction to entertain the appeal can be discussed.

Primarily, after indictment had been returned, Heath moved for an order under Rule 16, Federal Rules of Criminal Procedure, 18 U.S.C.A., requiring that the prosecution produce for inspection certain records pertaining to the charge "obtained by the agents of the Internal Revenue Service * * * and which have not been returned to the defendant." After a lengthy hearing at which witnesses for both the prosecution and the defense testified, the court made findings that defendant in 1952 turned over to Internal Revenue agents all his books and records and they took what they wanted while investigating his civil and criminal liability for the years in question, but gave no receipt therefor, that the records of defendant for part of the period covered by indictment were corrected in his handwriting and initialed by him, that such a book or record did exist and was sometime in possession of these agents and is now lost. The trial court concluded that the document was material and necessary for the defense, that "defendant would be unable to prove the existence of errors in the books without a production of his records, which evidence could have a direct bearing upon the question of his intent."

Defendant was given a positive right to inspect any such document by the literal language of the Rule:

"Upon motion of a defendant * * * after the filing of the indictment * * * the court may order the attorney for the government to permit the defendant to inspect * * * documents * * * obtained from or belonging to the defendant * * * upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *" Rule 16, Federal Rules of Criminal Procedure.

The trial court concluded defendant could not go to trial and present his defense without inspection of the records sought. The court also came to the conclusion "that the document or book has been lost and cannot now be produced."

When the government indicated the document of which inspection was sought was at least not presently available, the trial court had several choices. The cause could have been continued temporarily. A trial date could have been set in the future, in order to give the government time to reorganize its case. The order might have been that the prosecution would be abated until the record be produced.

But the trial court chose another course. It was directed that a motion to dismiss be filed by counsel for defendant. A written motion to dismiss was accordingly filed without stating any grounds therefor. The trial court thereupon entered judgment dismissing the indictment.

It has often been said that a federal judge is not a mere automaton steering a course or deflected therefrom by mechanical or electronic devices. His office is judicial and requires the exercise of discretion in extremely delicate situations. In criminal proceedings, his primary function is the protection of society from lawbreakers and criminals. But what the interests of society are is itself a complex question of human relations. The whole system of protection of rights of the individual has been built up primarily by the judges of the common law. This process goes on today. These relations are, of course, never static, and judicially devised protection has been widely expanded in our time.

Rule 16, Federal Rules of Criminal Procedure, is an innovation.¹ Before the adoption thereof by the United States Supreme Court, discovery by defendant even of the exact contention of the government was confined to the severely limited motion for bill of particulars.² Unquestionably, for protection of society, restriction on disclosure must still be relatively ironclad before trial. Otherwise, at times there can be no effective prosecution. The boundaries of disclosure before trial and the remedies for failure to produce should be left to the absolute discretion of the trial judge,³ unless defendant is convicted, in which case review thereof may be had.

If the question were before this Court, which it is not, we should have no difficulty in sustaining the trial judge in the findings and in requiring the government to produce the documents as a condition precedent to trial, since these were, without question, vital to the defense. Far otherwise would be the situation after defendant were on trial. That is a diametrically different situation for both prosecution and defense, as above noted.

There any unfairness to a defendant should be eliminated by the trial judge.⁴ To prevent possible prejudice on trial beyond the general atmosphere of impartiality which traditionally pervades the courtroom, trial judges have wide discretion to methods of control. Among these are direction of mistrial, order to the jury to return verdict of acquittal and grant of new trial.⁵ By an order requiring production before trial, the judge saved the government and defendant the necessity of going to trial when it was a foregone conclusion that one of these motions would have been granted after the evidence was submitted.

If the trial court had not during the course of trial corrected this patent unfairness to defendant, as it inherently had the power to do upon conviction, appeal for defendant would have lain.

On the other hand from none of these enumerated orders, made after empanelment of the jury, could the prosecution have review.

It was anciently the policy of the common law, which was continued in our law until recent times, that the government have no appeal from any adverse ruling or order, albeit the prosecution was thereby terminated. Generally speaking, even today no right of appeal by the prosecutor lies from any ruling adverse to the government.⁶ This rule was rigidly adhered to from the foundation of the United States of America until the year 1907, when an appeal was allowed to the United States Supreme Court from a ruling sustaining a demurrer to an indictment based upon the invalidity or construction of the statute upon which the indictment was founded.⁷ By this statutory exception, such an appeal has been allowed. By another exceptional enactment, other attacks upon the substance of an indictment, such as failure to state facts sufficient to show that a crime has been committed, are reviewable by the Courts of Appeals if these result in dismissal of the indictment.⁸

This enactment must be strictly construed, and generally has been so construed, in the light of the historical development. We are therefore constrained, in consideration of an order before trial and after indictment, to allow appeal only if it be expressly accorded by the statute strictly construed.⁹ It is usually held that the review of these orders must be granted or denied, based upon a consideration, not of what the motion is termed by the pleader or denominated by the trial court, but upon the actual substance and real effect thereof.

Under the language of the appeals statute and Rule 12(b), Federal Rules of Criminal Procedure, an appeal is given to the government to the United States Supreme Court where the motion to dismiss, filed after indictment and before trial, really performs the function of a special plea in bar¹⁰ and to a Court of Appeals where a plea in abatement to the indictment would have formerly been the appropriate remedy.¹¹ It may well be that no order sustaining a motion to dismiss founded upon any ground other than those which historically were included in previous enactments can be appealed by the prosecution.¹² Many courts apparently so hold.¹³ The logic of the situation and the legislative policy requires that no appellate jurisdiction can be based upon the fact that such a dismissal is a "final decision" as regards the government. A judgment on a directed verdict of acquittal is such a "final decision." Such judgment has never been reviewable.

Since every method of terminating criminal action against the prosecution before trial may be accomplished by filing a motion to dismiss,¹⁴ a court is compelled to analyze the situation in the particular case to determine whether appeal lies from such an order. Review of the facts show here that the dismissal was based upon the finding that the government could never obey an order to produce the document. This is a circumstance outside the indictment and which did not affect the merits of the charge. The government could not therefore accord to defendant the right expressly given him...