United States v. George F. Brown

ALVIN B. RUBIN, Circuit Judge,

concurring in part, dissenting in part:

As my brethren note, the defendant did not ask for, and was not entitled to receive under the discovery rules in criminal cases, Rule 16, F.R.Cr.Proc., and Brady v. Maryland, 1963, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , as interpreted in United States v. Agurs, 1967, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 , everything in the government’s files. He sought that material that would “tend to negate the receipt of unreported income by the defendant in the amounts alleged in the indictment.” (Request 3) This is less vague than a request merely for exculpatory materials, but is hardly as specific as a request for a particular item. As to what was embraced in Request 4, set forth in full in the text of the opinion, we must conjecture, for the words used fail to convey any specific meaning to me; I cannot determine whether the defendant was seeking the names of witnesses, materials reflecting the names of witnesses, or Internal Revenue Service “statements,” whatever those may be.

The failure to produce material specifically requested by the defense that is in fact available to the government may be ground for a new trial. But we must distinguish between such a dereliction and the prosecutor’s failure merely to meet the constitutional duty, as interpreted in Brady, supra, and as further developed in Agurs, supra. If the prosecution has failed to produce exculpatory material not specifically requested by the defendant, the Constitution requires a new trial “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” Agurs, supra, 427 U.S. at 112 , 96 S.Ct. at 2401 , 49 L.Ed.2d at 355 . If the prosecutor fails to respond to a specific request, one that gives “the prosecutor notice of exactly what the defense desire[s],” Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2398-2399 , 49 L.Ed.2d at 351 , “it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2399 , 49 L.Ed.2d at 351 . Agurs does not, however, hold that every such default, however inexcusable, requires a new trial. Weighed by the non-specific request standard, Agurs, supra, obviously does not require a new trial here for reasons I will discuss below. If we assume that this request gave the prosecutor notice of exactly what the defense desired, however, the necessity for a new trial has not been demonstrated, and, for reasons set forth below, the procedure mandated by the opinion to determine that question appears to me to be ill-advised.

Let us return to the question whether the requests were specific in the Agurs sense; i. e., that the material requested exists and that the request told the prosecutor exactly what the defense desired. I assume that there was a net worth investigation, that annual balance sheets of the kind customarily prepared in such investigations exist for the years 1974 and 1975, and that they may show: (a) no increase in net worth for each year not reflected in reported income or non taxable income; (b) some increase in net *1280 worth not reflected in reported income or non-taxable income, but an increase amounting to substantially less than $15,000 each year; (c) similar increases in net worth equal to or in excess of $15,000. Analyses of the kind mentioned in (a) and (b) would tend to indicate that there is no unreported income that resulted in a net worth increase, but they would not disprove the receipt of income that was taxable and disbursed for purposes that did not result in an increase in net worth.

The value of the net worth analysis lies in proving the positive, not the negative: an increase in net worth not accounted for leads inescapably to the conclusion that there was income to enhance the taxpayer’s worth, but the absence of a net worth increase does not have the same force in proving that all income was reported.

The evidence here is overwhelming that $15,000 in cash was put in the defendant’s hands each year. The defendant virtually admits it. The defense was simply that the money was not income to him and he was merely a courier who carried the bag. Of course, we do not know, as my brethren say, what might be in the materials requested that would negate the receipt of $15,000 in unreported income each year. Let us conjecture: if the defendant received $15,000 each year and spent it for personal purposes, the result would not be reflected in his net worth at the end of either year. If, for example, he gambled all or part of it away, or spent it, at his own discretion, to benefit public officials, or expended it on personal extravagances, a net worth analysis showing that he had no unreported increase in net worth, or an unreported increase in net worth to a sum less than $15,000 would not per se negate his receipt of $15,000 each year as income. The audit might demonstrate fiscal rectitude in other regards, but there were character witnesses aplenty to testify to the defendant’s general impeccability.

The request was not for the balance sheets for 1974 or 1975. It was not for income reconstructions. It sought to put on the prosecutor the task of evaluating what might exist that would achieve the end of exonerating the defendant. Much travail would have been saved, and likely nothing lost to the government, had the prosecutor either produced what the government had, Cannon v. Alabama, 5 Cir. 1977, 558 F.2d 1211, 1213 , or responded by indicating the nature of the material in his possession and asking that the request be made specific so that he could determine his duty. The Supreme Court has said in Agurs, supra, 427 U.S. at 108 , 96 S.Ct. at 2399 , 49 L.Ed.2d at 352 , “[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.” But this was not done, and the failure by the government thus to cure what appears to be a lack of the necessary particularity in the request should not occasion a new trial.

No evidence is admissible unless it is relevant, Rule 402, Federal Rules of Evidence, and that means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” Rule 401, id. See also McCormick on Evidence, § 185 at 437 (2d Ed. 1972). If, however, a prosecutor fails, even in response to a specific request, to adduce the evidentiary material requested, a new trial is not automatically granted: the test is not whether the material was admissible, that is not merely relevant, but, whether it “is material, or indeed [whether] a substantial basis for claiming materiality exists.” United States v. Agurs, supra, 427 U.S. at 106 , 96 S.Ct. at 2399 , 49 L.Ed.2d at 351 . Because the actual holding in Agurs deals with the duty to produce exculpatory evidence in accordance with the “defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution,” id., 427 U.S. at 107 , 96 S.Ct. at 2399 , 49 L.Ed.2d at 352 , we cannot automatically apply its standard here: but we now know that, in such cases, a new trial must be granted “if the omitted evidence creates a reasonable doubt that did not otherwise exist, . . . .” 427 U.S. at 112 , 96 S.Ct. at 2401 , 49 L.Ed.2d at 355 . Presumably, the test is less stringent if there is a request for specific material, the material in fact exists, and is not pro *1281 duced. But nothing in Brady, supra, or in Agurs, supra, or in Rule 16 makes even the willful failure to produce every item of requested relevant material ipso facto ground for reversal.

In United States v. Anderson, 5 Cir. 1978, 574 F.2d 1347 , Judge Hill discusses the various failure-to-disclose situations. It is unnecessary to repeat that excellent summary here. Let me assume, however, that the requests were specific in the sense that Agurs, supra, defines that term. It appears to be implicit in the Agurs rationale that, even if the prosecution’s failure was inexcusable, this does not necessarily require a new trial. There must be some showing that the suppressed evidence might have affected the outcome of the trial. Presumably, the test to be applied would be the same test that applies if the prosecutor fails to comply with a request for discovery made in accordance with Rule 16, Federal Rules of Criminal Procedure; it must be shown that the defendant was prejudiced by the nondisclosure. United States v. Ross, 5 Cir. 1975, 511 F.2d 757, 764 ; United States v. James, 5 Cir. 1974, 495 F.2d 434, 436 ; United States v. Saitta, 5 Cir. 1971, 443 F.2d 830 , 831. In this respect, I agree with the criterion adopted by my brethren as sufficient to show prejudice: it must be shown that the material “might have affected the outcome of the trial.”

But the mandate does not confine itself to directing the trial judge to search for the specific items requested, to determine whether they exist, and, if so, whether prejudice resulted from their non-production. It directs a general search for “exculpatory evidence that is material to the guilt, or to the punishment of appellant, and which might have affected the outcome of the trial.” It thus embraces both specific items and general exculpatory material, non-production of which results in a new trial only if “the omitted evidence creates a reasonable doubt that does not otherwise exist.” Agurs, supra, 96 S.Ct. 2401 . Therefore, it directs a search for two different kinds of material and adopts the same standard for both.

Moreover, the mandate of my brethren requires the trial judge to examine documents in camera. A net worth investigation produces prodigious quantities of paper; the task of examining it is substantial. Assuming the utmost of industry, not every trial judge is capable of assimilating this data, which is based essentially on accounting concepts. 1 More important, even after trial, the judge does not know all of the possible theories of a case or all of the ways data in one party’s hands might be used when combined with data available to the other side. What may seem insignificant to a judge may be of great potential value to an advocate; once he knows what the facts are, a lawyer may be able to demonstrate that what is apparently unimportant is, in fact, material. The converse is also true: given a chance to argue the point, the prosecutor may be able to show that what appears significant is of little real probative worth. In the interests of due process, and the opportunity of both the defendant to evaluate the evidence that may be helpful to him (as well as to confront the witnesses against him), as well as in the interest of affording the prosecutor a chance to brief and argue its case, I would require no more in camera duties of trial courts than those that are indispensable.

Therefore, I would simply affirm the conviction. The defendant may yet file a motion for post-conviction relief under Section 2255. He may pursue this motion with such discovery devices as are available. 2 The inquiry may then be more directly focused, *1282 the subjects more specific, and the evidence may be viewed by the defendant, not merely by the court. Each side will also have a chance to be heard on the issues. Where this has been done, and due process afforded both sides, not in camera but in open court, the trial judge may determine whether there should be a new trial.

For these reasons, I respectfully DISSENT from the remand and the mandate to the trial judge.

. As it happens here, this experienced trial judge has unusual capabilities in this respect; he has a degree in accounting and actually worked as an accountant while attending law school.

. The trial judge in his discretion may allow the use of those discovery devices applicable to civil and criminal proceedings. Harris v. Nelson, 1969, 394 U.S. 286 , 89 S.Ct. 1082 , 22 L.Ed.2d 281 ; Ferrara v. United States, 5 Cir. 1977, 547 F.2d 861 ; United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53 . See also Rules Governing Section 2255 [ 28 U.S.C. § 2255 ] Proceedings, Rule 6, Act Sept. 28, 1976, P.L. 94-426, § 1, 90 Stat. 1334 .