Petition — Ross v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. €4-155 l

DELOY C. Ross,

UNITED

Petitioner,

Vv.

STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCU:T

June 9, 1975

JOHN L. INGOLDSBY

918- 16th Street, N.W.

Washington, D.C. 20006

WILLIAM G. SPENCER

918 - 16th Street, N.W.

Washington, D.C. 20006

JOSEPH J. TRITICO

130 West Kirby Street

Lark Charles, Louisiana 70601

WILSON - EPES PRINTING Co..,

INC. - RE 7-6002 - WASHINGTON, D. C. 20001

INDEX

Page

nll all 1

Pe nr NET nT NRE 2

. I cia ae 2

Statutory provisions involved .................2..-.-...---.00---------- 3

Constitutional amendments involved -............................. 3-4

Statement of the case Jute taeiieatilaiciieataiiiibaesinaibiiie 4

Reasons for granting the writ

1. The Decision Below Creates Conflicts Among

the Circuits with Regard to the Application of

Discovery under Rule 16 of the Federal Rules of

ey Se ss cieimniaeibiaedindis 8

2. The Decision Below Conflicts with the Seventh

Circuit Court of Appeals Interpretation of the

Fourth Amendment Rights of the Petitioner ...... 13

3. The Fifth Circuit Decision Below is in Conflict

with the Decision of this Court Requiring that

the Government show that Evidence Obtained

from a Third Party Thief was Obtained Vol-

untarily and Without Mere Acquiescence .......... 15

4. The Government’s Obtaining Petitioner’s Docu-

ments from a Third Party Thief is a Violation

of his Right to Due Process of Law under the

Fea SEAT EEE RD 16

a 17

I 18

Appendix (Opinion and Judgment of the Fifth Circuit

I iii i a la-l6a

Il

CITATIONS

Cases: Page

Bass Vv. United States, 239 F.2d 711 (6th Cir.

IID giscccccscrssnseentisennsntytneeaniagucnstaniianemamncnaeenpisiseae 9

Bumper Vv. North Carolina, 391 U.S. 543 (1968)... 2, 15

Burdeau V. McDowell, 256 U.S. 465 (1921) ......... 13, 14-15

Gouled v. United States, 225 U.S. 298 (1921) ........ 16

Holland v. United States, 348 U.S. 121 (1955) -...... 11

Joint Anti-Fascist Refugee Committee Vv. McGarth,

TST isc nsiesiiebnaniisntinniombeemantante 16-17

Knoll Associates, Inc. v. FTC, 397 F.2d 530 (7th

I cates eaehheceelstatenatgnianieadcienned 2, 13,14

Matlock v. United States, 415 U.S. 164 (1974) -.... 14

McNabb v. United States, 318 U.S. 332 (1943) -... 12

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) -... 15

United States v. Baum, 482 F.2d 1325 (2nd Cir.

STII scssctssconcesicnntinanssenicutisviciiniianaininitndatsimmnmnsinenmtemen 11

United States v. Bryant, 439 F.2d 642 (1971)... 8,9

United States v. Bushton, 463 F.2d 887 (1972) -.... 8

United States v. Harper, 458 F.2d 891 (7th Cir.

1971) cert. den. 406 U.S. 930 ................................ 13

United States v. Heath, 260 F.2d 623 (9th Cir.

EAE NET SE RRS seceay aearen eee een Nee En 9

United States v. Kelley, 420 F.2d 26 (2nd Cir.

TUTTI. visiuiccinin ahiuntielestaniamabsnpetemastaninsinainneticeepiavesinindounsnen 11

United States v. Kenny, 462 F.2d 1205 (83rd Cir.

1972) cert. den. 409 U.S. 914 ..............--------.--------- 12

United States v. Procareo, 34 FRD 486 (S.D. N.Y.

aa celal aieenlinmatnnetnenniane 11

United States v. Shindler, 24 FRD 142 (S.D. N.Y

ITI ccs ii dtedeeielapemeunasnibaleniigiteaalieliiiiesteataiitone 11

United States v. Tanner, 279 F. Supp. 451 (N.D.

ETE: TITIES ‘ssc cipecevcshtininstilscscinbieiennisaniecininadimninpnbinesieneaniansen 10

Miscellaneous:

RIES eres remeernenenee 10

ee ee ee es

@ ..W 22, oe cow

FS EO ones *

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No.

DELOoY C. Ross,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner Deloy C. Ross respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on April 21,

1975, rehearing denied May 16, 1975. A stay of man-

date was issued by the Court of Appeals for the Fifth

Circuit pending appeal to this court no later than

June 15, 1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix A attached hereto. No opinion

rendered by the District Court for the Western District

of Louisiana is reported.

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on April 21, 1975. The petition for

rehearing en bane was denied on May 16, 1975, and this

petition for certiorari was filed within 30 days of that

date. The court’s jurisdiction is invoked under 28 USC

§ 1254(1).

QUESTIONS PRESENTED

1. Is it reversible error for the District Court to per-

mit the Government to obtain from a third party thief

documents which are the property of the accused; refuse!

to grant the rule 16(b) FRCP which motion to inspect

and copy these same documents; and to permit the Gov-

ernment to use on a selective basis these same docu-

ments against the accused at the time of trial?

2. Is evidence stolen by a third party during a Gov-

ernment criminal investigation which was then obtained

under circumstances not shown to be “voluntary” ex-

cludable under the Fourth Amendment pursuant to Knoll

Associates, Inc. v. FTC, 397 F 2d 530 (7th Cir. 1968) ?

3. Is the Government required to show that stolen

evidence, both that which is introduced at trial and that

which is withheld from defense inspection, obtained from

a third party thief, is acquired with the third party’s

consent and not mere acquiescence under Bumper V.

North Carolina, 391 US 543, 88 S.Ct. 1788 (1968)?

4. Is the Government’s secret withholding of stolen evi-

dence from a third party thief during a criminal in-

vestigation a violation of due process under the Fifth

Amendment?

3

STATUTORY PROVISIONS INVOLVED

United States Code, Title 18:

§ 3771 Rule 16(b) of the Federal Rules of Criminal

Procedure

The rule reads as follows:

Upon motion of a defendant the court may order

the attorney for the government to permit the de-

fendant to inspect and copy or photograph books,

papers, documents, tangible objects, buildings - or

places, or copies or portions thereof, which are with-

in the possession, custody or control of the govern-

ment, upon a showing of materiality to the prepara-

tion of his defense and that the request is reasonable.

Except as provided in subdivision (a) (2), this rule

does not authorize the discovery or inspection of re-

ports, memoranda, or other internal government doc-

uments made by government agents in connection

with the investigation or prosecution of the case, or

of statements made by government witnesses or pros-

pective government witnesses (other than the de-

fendant) to agents of the government except as pro-

vided in 18 U.S.C. § 3500.

CONSTITUTIONAL AMENDMENTS INVOLVED

Fourth Amendment, United States Constitution

The Fourth Amendment reads as follows:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.

4

Fifth Amendment, United States Constitution

The Fifth Amendment reads as follows:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the militia,

when in actual service in time of war or public dan-

ger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use with-

out just compensation.

STATEMENT OF THE CASE

The petitioner, defendant in the United States District

Court for the Western District of Louisiana, Deloy C.

Ross, was in 1973 charged by indictments with filing a

false and fraudulent income tax return and with will-

fully attempting to evade income tax due on behalf of

himself and his wife for the years 1966, 1967 and 1968,

and was indicted for the same offense for the years

1968 and 1969 in connection with his activities in Ross

Investments, Inc., a corporation (26 U.S.C. 7201). The

defendant was tried before a jury in the Western Dis-

trict of Louisiana and on June 7, 1974 the jury found

the petitioner guilty on all counts.

The Government’s case against the defendant Ross was

based entirely upon the well-known and much used net

worth theory. The defendant Ross asserted the affirmative

defense that any unexplained increase in his net worth

during the years in question was not the result of any

willful evasion or nonpayment of income taxes due to

the Internal Revenue Service, but was due to the re

5

ceipt of gifts from his father, W. C. Ross, prior to the

time of his father’s demise in March 11, 1969.

At the time of the father’s death, Deloy Ross, the

defendant below, became the owner of all of his father’s

books, records and papers. During the pretrial stage,

indeed during the pre-indictment stage which commenced

May 6, 1969, the petitioner Ross repeatedly made his

position known to IRS agents and to the U.S. Attorney,

by documents submitted, by conferences and by telephone

calls. From the beginning there was never any ques-

tion or doubt but that the petitioner admitted to an

increased net worth and asserted that the increase was

due in substantial part to gifts which he had received

from his father. The petitioner Ross having asserted

this theory of increased net worth realized, with the ad-

vice of counsel, that he was asserting an affirmative

defense and it was therefore incumbent upon him to

establish the validity of this defense.

The petitioner Ross in order to establish an affirmative

defense assembled all of his own books, records and ac-

counting reports, as well as other material data, and

had all of this material analyzed and evaluated by com-

petent accountants and with the assistance of his own

counsel prepared this material in such a manner as to be

presented at his trial in order to produce its maximum

evidentiary value for the petitioner. Having adopted this

theory of defense, Ross and his counsel realized that they

indirectly placed in issue petitioner’s father’s net worth

for each material year. During the investigation of the

petitioner, a William Taylor in 1970 took from one of

Deloy Ross’ properties numerous business records, re-

ferred to in testimony on the motion for a new trial in

the District Court as a “carload and a truckload” of the

petitioner’s documents and records. Most of these records

were documents that formerly belonged to the father

of the petitioner but which the petitioner had inherited.

6

The records stretched back to the early forties and late

fifties. During the investigatory period the petitioner

was not entirely sure where or how these documents had

disappeared. It was not learned by petitioner and his

counsel until during the trial on May 29, 1974 that the

stolen documents were turned over to agents of the

IRS and that for over three years the petitioner’s prop-

erty was therefore directly or indirectly within the pos-

session and control of the U.S. Attorney.

In preparation for trial and in order to obtain all

available documents which might assist the defendant

in establishing his affirmative defense, counsel for the

defendant Ross filed a motion pursuant to 16(b) of the

Federal Rules of Criminal Procedure for discovery and

inspection of:

A. All books, records, papers, documents, photo-

graphs, tangible objects and material obtained

from or belonging to the accused;

B. Copies of all books, records, papers, documents,

photographs, tangible objects and material ob-

tained from or belonging to the accused;

C. All books, records, papers, documents, tangible

objects and material from whomsoever obtained

which are favorable to the accused on the issue

of his guilt or punishment and which will aid

him in the preparation of his defense;

D. All books, records, papers, documents and physi-

cal material which the Government intends to

offer as evidence in this case.

The Fifth Circuit Court of Appeals in its opinion

finds and contends that this motion was granted. It is

indisputable that the Government did not turn over for

discovery or inspection all the documents called for by

the defendant’s 16/b) motion, and there is no dispute

but what the defendant Ross in the District Court did

;

!

|

|

:

.

—

7

not have the benefit of use, or even of inspection, of

these records which were in possession of the Government.

Thereafter, during the trial in the District Court the

U.S. Attorney selectively introduced 24 out of 144 month-

ly profit and loss statements; the very same documents

which the defendant had sought to obtain by his rule

16(b) motion. These documents were introduced into evi-

dence against the petitioner over the general objection of

his counsel. (The record does not clearly indicate how

the District Court treated the government’s objection to

this objection.) It was only then that he saw for the

first time some of the very documents which he had

sought to obtain by pretrial motion and learned for the

first time who had stolen them. From that point on the

thief of the documents was absent evidently by “design”.

In arguing the rule 16(b) motion in the District Court,

the defendant Ross was at an extreme disadvantage from

the standpoint of establishing the materiality of the very

documents which he was seeking to obtain. In effect, he

and his counsel had to be able to see the documents in

order to establish their materiality or be blessed with a

remarkable memory because after all most of the stolen

documents were originally his father’s documents or kept

by him as his son’s employee, and he therefore did not

have the same familiarity with the contents of the docu-

ments as his father would have had, had he been alive.

Nevertheless, any of the petitioners own documents in a

complex tax case are not readily reconstructed from mem-

ory. One quick test of the materiality of the documents

which were being sought under rule 16(b) can be estab-

lished by the fact that the U.S. Attorney found some of

the documents to be extremely material. In fact, they

were so vitally material that the U.S. Attorney used

them in evidence against the defendant Ross.

Subsequent to the entry of the jury’s guilty verdict the

defendant’s counsel filed a motion for a new trial and a

8

hearing was had thereon. It was at this time that coun-

sel for the petitioner learned that four boxes of stolen

documents were still in possession of the Government.

The court received the documents and placed them under

seal after a brief secret examination. One of the prin-

cipal grounds asserted in support of the motion for a

new trial was the fact that at no time prior to trial,

nor during trial, was the defendant Ross permitted to

inspect or use his own documents. It was the contention

of the defendant Ross that had he had access to the docu-

ments in question, he would have been able to establish

to the satisfaction of the jury that the unexplained in-

crease in his net worth during the years in question was,

in fact, the result of substantial gifts from his father.

The motion for new trial was denied.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CREATES CONFLICTS

AMONG THE CIRCUITS WITH REGARD TO THE

APPLICATION OF DISCOVERY UNDER RULE 16

OF THE FEDERAL RULES OF CRIMINAL PRO-

CEDURE.

The Circuit Court of Appeals for the District of Co-

lumbia recognizes that denial of a reasonable discovery

request for no good reason “cannot be excused as an

exercise of the trial judges discretion under the Rule.”

United States v. Bushton, 463 F 2d 887, 988 (1972).

The court in so observing referred to United States v.

Bryant, 4839 F 2d 642 (1971) a case involving 16(a)

discovery.

One’s private financial records can, depending on the

individual, be vast and complex. Memory alone cannot

catalogue and retain their every significance, particularly

with regard to the complexities of the tax laws. Without

discovery and inspection as provided for by rule 16(b),

ee

9

the petitioner was unable to properly prepare for trial.

The documents stolen during the Government’s investiga-

tion could not be reconstructed to use himself or to

counter inferences that might be derived from them. The

evidence still under seal might as well be lost or de-

stroyed as far as the petitioner is concerned.’

The court, through Judge Skelly Wright, in United

States v. Bryant observed with regard to the prosecution’s

disclosure study: *

The purpose of the duty is not simply to correct

an imbalance of advantages, whereby the prosecu-

tion may surprise the defense at trial with new evi-

dence; rather, it is also to make of the trial a search

for truth informed by all relevant material, much

of which, because of inbalance in investigative re-

sources, will be exclusively in the hands of the gov-

ernment (citation omitted, emphasis supplied).

And with regard to evidence to which one is left, “en-

tirely in the dark,” the court said: *

There is not simply ‘substantial room for doubt’ *

but room for nothing except doubt as to the effect

of disclosure.

The case was remanded.

Even if the discovery motion had been granted entirely,

the government failed to abide by it. In so doing the

government gravely violated the rights secured to the

petitioner under this rule for a reasonable inspection of

his own property which was material to his trial and

his defense. In Bass v. United States, 239 F 2d 711 (6th

Cir 1957) the court held that the defendant should have

1C.f. United States v. Heath, 260 F 2d 623 (9th Cir. 1958), in

which evidence was destroyed and the directed verdict of acquittal

was upheld.

2439 F 2d at 648.

3 [bid.

* See footnote 8 and text 439 F 2d at 648.

10

been entitled to inspection of evidence obtained from a

third party belonging to him and said:

Appellant had a right equal to that of the gov-

ernment to use the same documents in the same way

to prepare for trial. A denial of this right calls for

reversal.°

Rule Sixteen was changed in 1966 and in subdivision

(b) “obtained from or belonging to the defendant or ob-

tained from others by seizure or by process” was omitted.

These limitations were eliminated to broaden the scope

of discovery not to limit it.°

The standard of materiality and reasonableness can-

not be met by a defendant where there is a vast amount

of documents which the Fifth Circuit seems to feel should

be computerized in defendants own “knowledge”. In a

complex networth tax case materiality of documents re-

quires time and careful analysis.’ The court in United

States v. Tanner, 279 F Supp 457 (N.D. Ill 1967) quoted

from a learned law review article* by Mr. Daniel Rez-

neck on this subject which in substance pointed out that:

. . « [I]t may be difficult to demonstrate the ma-

teriality of what has not been seen.

Anything the government plans to introduce

against the defendant at trial would obviously be

material to the preparation of his defense and a

request to inspect it would be reasonable. .. .

Reasonableness is a closely related requirement

[to materiality]. A request for items material to

° At 716. See e.g. United States v. Fancher, 195 FS 448, 450 (D.

Conn 1961) ; United States v. Cohen, 15 FRD 269 (S.D. N.Y. 1953) ;

United States v. Parr, 17 FRD 512 (S.D. Tex. 1955) : United States

Vv. Bennethum, 21 FRD 227 (D. Del. 1957) : United States v. Skind-

ler, 24 FRD 142 (S.D. N.Y. 1959).

* Introduction to committee note to Rule 16.

* United States v. Tanner, 279 F Supp. 457, 470 (N.D. Ill 1967).

*54 Geo. L. J. 1276, 1279-1290 (1966).

11

the preparation of the defense would ordinarily be

reasonable, unless, for example, the defendant al-

ready had some other access to the matters sought.

In the instant case, memory concerning the contents of

the petitioner’s documents as well as ignorance of the de-

tails of documents once belonging to the petitioner’s fa-

ther effectively created a situation wherein the defendant

might as well have never seen the documents. It is ab-

surd to say that it is within his knowledge that docu-

ments stretchin, back over 20 years should be intimately

“known”. Of course, as Mr. Rezneck points out, those

documents introduced are inherently material and it is

only reasonable to request discovery of support documents

in preparation for trial in order to refute contrary con-

clusions the Government should use or make. As the court

said in United States v. Procareo: °

... [I]t is difficult to understand how a defendant

can, in advance of trial, adequately prepare to meet

the charge unless he has access to basic records.

In addition, it is somewhat outrageous that the district

court could examine secretly in thirty minutes four cases

of documents that would take an accountant an extensive

amount of time to analyze’ and then declare the mate-

rial only non-exculpatory.

The Second Circuit has recognized the need for fair-

ness with regard to subdivision (a) of Rule Sixteen.”

As with those cases, the tactics of the Government in this

case “smacks too much of a trial by ambush, in viola-

tion of the spirit of the rules.” *

°34 FRD 486, 488 (S.D. N.Y. 1963).

10 See Holland v. United States, 348 U.S. 121, 127, 75 S.Ct. 127,

132 (1955); United States v. Shindler, 24 FRD 142, 145 (S.D. N.Y.

1959).

United States v. Kelley, 420 F 2d 26, 28-29 (2nd Cir. 1969) ;

United States v. Baum, 482 F 2d 1325, 1332 (2nd Cir 1973).

12 United States v. Baum, 482 F 2d at 1332.

12

In the Third Circuit a much broader discovery re-

quest than the instant case was granted, upheld, and the

defendant foreclosed from the complaint that too much

material was disclosed.** Certainly in the Fifth Circuit

a request for four boxes of the defendants own property

is not unreasonable.

Moreover, the Government should not be allowed to com-

pound an illegal act during its investigation or aid and

abet the commission of a crime, even if it were a crime

it could not prosecute. If the United States Government

can cooperate with local authorities to enforce state crim-

inal laws, it should not on mere whim ignore a local

crime to its advantage. Under the court’s supervisory

power over the administration of criminal justice in the

Federal courts,‘ the Government should be required to

proceed openly and fairly, particularly when stolen evi-

dence is involved in its prosecution and when discovery

of such evidence is material and reasonable.

By sanctioning the admissibility of privately stolen

evidence and conviction thereon this court permits dis-

respect for the law that protects not only a person’s con-

stitutional rights but also his legal rights in his property.

And where privately seized or stolen property is evidence

requested by the Government, the Government should in

the light of day obtain the property, thereby allowing a

victimized citizen to regain what is rightfully his or at

least know where his property has disappeared. In-

deed, it is admirable to encourage third party citizens

to be cooperative in criminal investigations of others, but

not to the extent that private vigilantism is encouraged or

private burglaries are encouraged. The whole purpose

of law and order is otherwise defeated.

'S United States v. Kenny, 462 F 2d 1205 (3rd Cir 1972) cert den.

409 U.S. 914, 93 S.Ct. 233.

** McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943).

—

13

2. THE DECISION BELOW CONFLICTS WITH THE

SEVENTH CIRCUIT COUR’ OF APPEAL’S INTER-

PRETATION OF THE FOURTH AMENDMENT

RIGHTS OF THE PETITIONER.

In Knoll Associates, Inc. v. FTC, 397 F 2d 530 (7th

Cir. 1968) the Government during the course of its in-

vestigation of Clayton Act violations received from a

third party stolen business documents belonging to the

defendant. The court in its fifth footnote at page 535

distinguished Burdeau v. McDowell, 256 U.S. 465, 41

S.Ct. 574 (1921) on the observation that the Burdeau

documents were stolen months before the initiation of

the Government investigation. Consequently there was no

nexus or taint of Government approval for private theft

and seizure of a persons property or papers which would

normally violate the Fourth Amendment as intimated by

Burdeau.**

The financial records secretly in the possession of the

Government belonged to Deloy C. Ross because (1) he

owned the store, the land and W. C. Ross & Sons en-

tirely since 1946 and never sold the business of or the

name of W. C. Ross & Sons; (2) he maintained owner-

ship of the documents on his property * even after the

abandonment of the store by the caretaker of the docu-

ments; and (3) whatever portion of the stolen documents

that originally were his father’s he inherited from his

father. The thief as a step-brother had no ownership

right or interest in the documents other than the fact

8 256 U.S. 465, 475, 41 S.Ct. 574, 576; United States v. Harper,

458 F 2d 891 (7th Cir 1971) cert den. 406 U.S. 930, 92 S.Ct. 1772.

1% The Fifth Circuit Court of Appeals made a factual error in

that Deloy C. Ross sold the inventory of W. C. Ross & Sons but he

did not sell the building, land or business name to the thief. That

is to say, he did not sell the “store”. Trial Transcript page 1798.

The deed to the property is recorded at Book 162 page 590, Parish

of Vernon, Leesville, Louisiana.

14

that prior to his abandoning the store premises" and his

caretaker duty of the records, he had the duty of their

safekeeping.’ He had no authority to remove or consent

to removal of the documents for his own use or that of

the Government.” He had no right of “mutual use” of

the documents at any time.*’ Indeed, his reentry of the

abandoned store amounts to theft by unlawful entry.

The theft of Deloy Ross’ financial records was during

the investigation by the IRS as the Fifth Circuit Court

of Appeals notes. Had Deloy Ross been accused and

tried in the Seventh Circuit the evidence introduced

against the petitioner would be suppressible under the

Fourth Amendment and the Knoll decision.

In such situations where the Government takes ad-

vantage of crimes of individuals, the words of Justice

Brandeis in his dissent in Burdeau v. McDowell be-

come more urgent:

At the foundation of our civil liberties lies the

principle which denies to the government officials an

exceptional position before the law, and which sub-

jects them to the same rules of conduct that are

* Trial Transcript, page 1813 line 15.

'* Trial Transcript, page 1798.

af It has not been established if consent was “voluntarily” given

or if there was trick or coercion vis a vis the thief with regard to

the documents still withheld. See reason #3 below.

*° Matlock v. United States, 415 U.S. 164, 171, $4 S.Ct. 988 (1974)

at footnote 7: “Common authority is, of course, not to be implied

here from the mere property interest a third party has in the

property. The authority which justifies the third party consent

does not rest upon the law of property, with its attendant historical

and legal refinements, . . . (citation omitted) but rests rather on

mutual use of the property by persons generally leaving joint access

or control for most purposes, so that it is reasonable to recognize

that any of the coinhabitants has the right to permit inspection in

his own right... . (emphasis supplied )

7? 256 U.S. at 477, 41 S.Ct. at 576-577.

15

commands to the citizen. And in the development

of our liberty, insistence upon procedural regularity

has been a large factor. Respect for law will not be

advanced by resort, in its enforcement, to means

which shock the common man’s sense of decency and

fair play. (emphasis supplied)

3. THE FIFTH CIRCUIT DECISION BELOW IS IN

CONFLICT WITH THE DECISION OF THIS COURT

REQUIRING THAT THE GOVERNMENT SHOW

THAT EVIDENCE OBTAINED FROM A THIRD

PARTY THIEF WAS OBTAINED VOLUNTARILY

AND WITHOUT MERE ACQUIESCENCE.

As this court has reiterated in Schneckloth v. Busta-

monte, 412 U.S. 218, 223, 93 S.Ct. 2041, 2045 (1973),

when the Government relies on the consent of a third

party to justify the lawfulness of a search, the Govern-

ment “has the burden of proving that the consent was,

in fact, freely and voluntarily given” without mere ac-

quiescence Bumper Vv. North Carolina, 391 U.S. 543, 548-

549, 88 S.Ct. 1788, 1792 (1968). With regard to docu-

ments still withheld from the petitioners inspection, the

Government did not so show this because the one person

able to testify as to the voluntariness of the consent to

the IRS search and seizure, the thief, disappeared before

his significance was realized. Considering his theft it is

understandable why he did. And there is no indication

that the Government searched for the witness—undoubt-

edly conduct favoring his theft and unlawful entry. With

regard to the evidence stolen which was admitted, these

were evidently received from the thief’s attorney but this

is not entirely clear.

16

4. THE GOVERNMENT’S OBTAINING PETITION-

ER’S DOCUMENTS FROM A THIRD PARTY THIEF

IS A VIOLATION OF HIS RIGHT TO DUE PROCESS

OF LAW UNDER THE FIFTH AMENDMENT.

In Gouled v. United States, 225 U.S. 298, 41 S.Ct. 261

(1921) this court said that the bill of rights “should

receive a liberal construction, so as to prevent stealthy

encroachment upon or ‘gradual depreciation’ of the rights

secured by them, by imperceptible practice of courts,

or by well intentioned but mistakenly over-zealous ex-

ecutive officers.” ** In the present case the Government

has taken advantage of a crime in order to rob the

petitioner of due process.

In Joint Anti-Fascist Refugee Committee v. McGarth,

341 U.S. 123, 71 S.Ct. 624 (1951) Justice Frankfurter

in his concurring opinion made some basic observations

about “the deep-rooted demands of fair play enshrined

in the Constitution.” In that case the Committee was

designated communist “without notice, without disclosure

of any reasons justifying it, without opportunity to meet

the undisclosure evidence or suspicion on which designa-

tion was may have been based, and without opportunity

to establish affirmatively that the aims and acts of the

organization ay» innocent.” ** All this was “devoid of

fundamental fairness as to offend the Due Process Clause

of the Fifth Amendment.”

Justice Frankfurter expounds :**

“. .. [D]ue process”, unlike some legal rules, is not

a technical conception with a fixed content unrelated

to time, place and circumstances expressing as it

does in its untimate analysis respect enforced by

22 225 U.S. at 304, 41 S.Ct. at 263.

*8 341 U.S. at 161, 71 S.Ct. at 643.

** 341 U.S. at 162-3, 71 S.Ct. at 643-4.

17

law for that feeling of just treatment. . . . “Due

process” cannot be imprisoned within the treacherous

limits of any formula. Representing a profound

attitude of fairness between man and man, and more

particularly between the individual and government,

“due process” is compounded of history, reason, the

past course of decision and stout confidence in the

Strength of the democratic faith we profess. Due

process is not a mechanical instrument. It is not

a yardstick. It is a process. It is a delicate process

of adjustment inexcapably involving the exercise of

judgment by those whom the Constitution entrusts

with the’ unfolding of the process. (emphasis sup-

plied)

In the instant case the petitioner’s property was taken

twice: once by a third party thief and then by the

Government. The later, like the thief, took that evi-

dence introduced into trial without disclosure of any

legal reasons justfying such taking of his property

and that evidence which is stil] Suppressed left the pe-

titioner without opportunity to meet or use his secretly

held property. In short the petitioner is deprived the

opportunity to prepare his defense, and such deprivation

was without due process.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

/S/f | oblon.. AO cL,

JOHN L. INGOLDSBY

918- 16th Street, N.W.

Washington, D.C. 20006

, LLL.

June ba 1975

18

CERTIFICATE OF SERVICE

I hereby certify that on this 2” aay of June, 1975,

three copies of the Petition for writ of Certiorari were

mailed, postage prepaid, to Mr. Robert H. Bork, Solicitor

General of the United States, Justice Department, Wash-

ington, D.C. 20530.

JOHN L. INGOLDSBY ”

Suite 201

918 16th Street, N.W.

Washington, D.C. 20006

Counsel for Petitioner

la

APPENDIX A

Fifth Circuit Opinion and Judgment Copied

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 74-2969

April 21, 1975

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

DELOoY C. Ross,

Defendant-A ppellant.

* * * *

Appeal from the United States District Court for

the Western District of Louisiana.

Before AINSWORTH, GODBOLD and SIMPSON, Cir-

cuit Judges. ~

AINSWORTH, Circuit Judge:

Defendant Deloy C. Ross appeals from a judgment

of conviction entered after a jury trial on five counts

of evasion of federal income tax. He raises three issues

on this appeal: that the trial court improperly denied

in part his motion for discovery under Fed.R.Crim.P. 16;

that the prosecution failed to fulfill its obligation to

disclose evidence favorable to the defense under Brady

v. State of Maryland, 373 U.S. 88, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963); and that the Government denied

him due process and violated his Fourth Amendment

rights in acquiring from a third party certain papers

and records allegedly belonging to him. We affirm the

conviction.

2a

I. Factual Background of the Investigation and Trial

In May 1969, two Internal Revenue Service agents

interviewed Deloy Ross and told him that they were

undertaking an investigation of his tax returns that

might lead to criminal charges. After conferring with

his accountant and attorney, Ross agreed to permit the

agents to inspect and hand copy business records to be

provided him at his accountant’s office. These records

included accounting books and corporate records of a

motel owned by Ross, of Ross Investments, Inc., and of

W. C. Ross & Son, a general store partnership between

Ross and his father (W. C. Ross) which was dissolved

in January 1968. These records were for tax years

1965 through 1969. It was agreed that none of the

records thus provided was to be Xeroxed or removed

by the IRS agents.

As part of their investigation the IRS agents inter-

viewed defendant’s step-brother, William Taylor. Defend-

ant had sold the store operated under the W. C. Ross

& Son partnership to Taylor in 1968, and several boxes

containing financial records of the partnership remained

there. In September 1970, Taylor took these records

to attorneys looking into his claims against his mother’s

estate. In March 1971, Taylor retrieved some of these

records and turned them over to the IRS agents, in

response to their request. The agents received the re-

maining records directly from the attorneys, with Tay-

lor’s permission. This investigation culminated in indict-

ments against Deloy Ross for evasion of income tax

owed by himself and his wife for 1966, 1967, and 1968,

and for evasion of income tax owed by Ross Investments,

Inc. for 1968 and 1969.

The Government’s case at trial was proved by the

“net worth” method, which is used to establish a tax-

payer’s true income when there is no direct proof of

the unreported income. The net worth method involves

calculating the taxpayer’s assets and liabilities at the

beginning of the relevant tax period to establish an

initial net worth. The same calculation is performed as

to assets and liabilities at the end of the tax period.

If the taxpayer’s increase in net worth plus his living

expenses for that tax period exceed his reported income

and cannot be explained by receipt of nontaxable in-

—, the existence of unreported income may be in-

erred.

Before trial defendant filed a written motion seeking

discovery from the Government of

A. All books, records, papers, documents, photo-

graphs, tangible objects and material obtained

from or belonging to the accused;

B. Copies of all books, records, papers, documents,

photographs, tangible objects and material ob-

tained from or belonging to the accused;

C. All books, records, papers, documents, tangible

objects and material from whomsoever obtained

which are favorable to the accused on the issue

of his guilt or punishment and which will aid

him in the preparation of his defense;

D. All books, records, papers, documents and physi-

cal material which the Government intends to of-

fer as evidence in this case.

This motion was granted, and the Government provided

defendant with a set of computations and data sheets it

developed in attempting to establish the amount of un-

reported income attributable to defendant and his en-

terprises during the years in question.

Ross sought to rebut the Government’s case by assert-

ing that he had a substantial cash accumulation from

years prior to the tax years in question, and that he

received large cash gifts (several hundred thousand

4a

dollars) from his father, W. C. Ross, who died in 1969.

The Government sought to refuge this assertion by of-

fering the testimony of an IRS agent who had analyzed

W. C. Ross’ personal income tax returns and the monthly

accounting statements of the W. C. Ross & Son partner-

ship from 1952 through 1968. The tax returns for 1952

through 1968 were introduced into evidence,’ as were

the accounting statements of W. C. Ross & Son for 1952

through 1964, except for 1956. Although a few monthly

statements for this period were not introduced, the vast

majority were. Defendant made no objection to the

introduction of this evidence.

The jury returned a verdict of guilty on all counts.

Defendant filed several motions for a new trial, arguing

that the Government had seized the records of the W. C.

Ross & Son partnership from Taylor in violation of

defendant’s Fourth Amendment rights and in violation

of the Government’s agreement with him; also, that the

Government had failed to produce materials described

in defendant’s pretrial motion for discovery, which had

been granted by the court, as well as other evidence

required to be disclosed under Brady v. State of Mary-

land, supra. These post-trial motions were denied, and

defendant brought this appeal.

II. The Adequacy of Pretrial Discovery

A. Failure to Raise This Alleged Error at Trial

Defendant argues on this appeal that the trial court

partially denied his discovery motion. The record shows,

however, that the motion was granted by the trial

judge without qualification. Whether an error was com-

mitted is, of course, affected by the extent of defend-

1The Government also introduced certificates of assessments

and payments of W. C. Ross for the years 1941 through 1968. These,

in conjunction with the tax returns, showed that W. C. Ross earned

$147,000 during that period.

5a

ant’s efforts, under Fed.R.Crim.P. 16(g),? to bring to

the court’s attention any alleged noncompliance by the

Government with his discovery requests.

The records of W. C. Ross & Son were introduced dur-

ing the prosecution’s case. Defendant was aware that

the boxes of records stored at his stepbrother’s business

contained the financial statements introduced into evi-

dence, yet no motion to suppress this evidence was offered

until defendant’s motion for a new trial, made after the

jury’s verdict was received and 43 witnesses and 1,300

pages of transcript later.’ Moreover, during the prosecu-

tion’s case an IRS agent testified (and defense counsel

stipulated) that the stepbrother Taylor was the source

of the records.*

This Court and others have criticized failure to

raise alleged discovery errors promptly. See United

States v. Fink, 5 Cir., 1974, 502 F.2d 1, 7; United States

v. James, 5 Cir., 1974, 495 F.2d 434, 436-437; United

2 Fed.R.Crim.P. 16(g) states, in relevant part:

If at any time during the course of the proceedings it is

brought to the attention of the court that a party has failed

to comply with this rule or with an order issued pursuant to

this rule, the court may order such party to permit the dis-

covery or inspection of materials not previously disclosed, grant

a continuance, or prohibit the party from introducing in evi-

dence the material not disclosed, or it may enter such other

order as it deems just under the circumstances.

3’ Defense counsel did attempt to lodge a general objection to all

documents introduced: “to be certain, Your Honor, if there is any-

thing that the Court ordered them to give us, and if they didn’t

do it, I want the record to reflect that.” Tr. at 381. The prosecution

objected, and the court properly treated defendant’s objection as

applying to the document then being introduced, which is not at

issue on this appeal.

*Cf. United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350, 1353;

United States v. Baxter, 9 Cir., 1973, 492 F.2d 150, 173, where

defendants, upon learning that the Government had not complied

with their discovery requests, moved for a mistrial.

6a

States v. Baxter, supra. Defendant’s ample opportunity

to ask the trial court to order the Government to comply

with his request for documents must be taken into ac-

count in determining whether error was committed in

denying the motions for a new trial.

B. The Provisions of Fed.R.Crim.P. 16(b)

and the Standard of Review

Fed.R.Crim.P. 16(b) provides, in relevant part:

(b) Other Books, Papers, Documents, Tangible Ob-

jects or Places. Upon motion of a defendant the

court may order the attorney for the government

to permit the defendant to inspect and copy or photo-

graph books, papers, documents, tangible objects,

buildings or places, or copies or portions thereof,

which are within the possession, custody or control

of the government, upon a showing of materiality

to the preparation of his defense and that the re-

quest is reasonable.

The operative terms of the rule are “materiality” and

“reasonable.” The phrase “the court may order” in the

text of Rule 16(b) clearly indicates that the granting of

discovery motions is a matter of the trial court’s discre-

tion. In judging the correctness of the trial court’s con-

clusion that the evidence not tendered by the Government

was not material and that defendant’s request for such

materials (as clarified and renewed in his motion for a

new trial) was not reasonable, we will not interfere

with the trial court’s ruling in the absence of a clear

abuse of discretion. United States v. Stone, 5 Cir., 1973,

5 See United States v. Armes, 6 Cir., 1972, 470 F.2d 1353, 1355;

United States v. Cook, 7 Cir., 1970, 432 F.2d 1093, 1101; United

States v. Indiviglio, 2 Cir., 1965, 352 F.2d 276, 280. See generally

Colella v. United States, 1 Cir., 1966, 360 F.2d 792, 800. Cf. United

States v. Wolfson, 2 Cir., 1969, 413 F.2d 804, 808.

Ta

472 F.2d 909, 916.° We find no abuse of discretion in this

regard.

C. Materiality of the Disputed Documents

As a matter of general construction “[{t|]he meas-

ure of discovery permitted by the Rules of Criminal

Procedure is not intended to be as broad as in a civil

case.” Clay v. United States, 5 Cir., 1968, 397 F.2d 901,

915, vae. on other grounds sub nom. Giordano v. United

States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297

(1969). Materiality means more than that the evidence

in question bears some abstract logical relationship to the

issues in the case. See United States v. Schembari, 4 Cir.,

1973, 484 F.2d 931, 935 (fact that photographs in Gov-

ernment’s possession were of demonstration during which

defendant was arrested held insufficient to show mate-

riality) There must be some indication that the pretrial

disclosure of the disputed evidence would have enabled

the defendant significantly to alter the quantum of proof

in his favor. The extensiveness of the material which

the Government did produce, United States v. Hildebrand,

5 Cir., 1974, 506 F.2d 406, 409, and the availability of

the disputed material from other sources, including the

defendant’s own knowledge, must also be considered. See

United States v. Felts, 5 Cir., 1974, 497 F.2d 80, 82.”

®* See United States v. Saitta, 5 Cir., 1971, 443 F.2d 830, 831;

United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286; United

States v. Baxter, 9 Cir., 1973, 492 F.2d 150, 175; Mullins v. United

States, 8 Cir., 1973, 487 F.2d 581, 589; United States v. Smaldone,

10 Cir., 1973, 484 F.2d 311, 320-321; United States v. Newman, 3

Cir., 1973, 476 F.2d 733, 739; United States v. Armes, 6 Cir., 1972,

470 F.2d 1353, 1355; United States v. Lewis, 7 Cir., 1969, 406 F.2d

486, 492; United States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615;

Walsh v. United States, 1 Cir., 1967, 371 F.2d 436, 437.

7 See United States v. Toombs, 5 Cir., 1974, 497 F.2d 88, 93;

United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286-1287;

United States v. Bland, 5 Cir., 1970, 432 F.2d 96, 97; United States

v. Brawer, 2 Cir., 1974, 496 F.2d 703, 705; United States v. Barnes,

8a

The Government gave defendant a complete sum-

mary of the computations and data on which it based its

calculation of defendant’s net worth and income for the

tax years in question. The only point on which the dis-

puted records were relevant was whether Ross’ father

had sufficient income to be able to make the cash gifts

that were the basis of one of Ross’ defenses. Defend-

ant’s accountant testified that copies of the profit and

loss statements of W. C. Ross & Son introduced by the

Government, as well as copies of those not introduced

from earlier years, were customarily kept on file in the .

accountant’s office. Therefore, it is different to under-

stand how obtaining the Government’s copies of these

reports could have materially aided Ross’ defense, es-

pecially since defendant did not dispute the total amount

of income attributed by the Government to W. C. Ross

as evidenced by the tax returns, certificates of assess-

ments and payments, and the IRS agent’s testimony.

Documents showing W. C. Ross’ income from one source,

the partnership, for the months not covered in the Gov-

ernment’s proof, would be relevant only if defendant

disputed the amount of income attributable to W. C.

Ross from all sources combined. It follows that the re-

ceipts and other primary sources from which the tax re-

turns and accounting statements were prepared are also

not material, and would only have duplicated the testi-

mony of defendant’s accountant concerning his prepara-

tion of the returns and statements.

The most persuasive evidence that the trial court did

not err in his ruling on this issue is found in defend-

ant’s lack of interest in the documents until some of

them were introduced at trial. Deloy Ross’ testimony

shows he was well aware of the contents of these boxes

of records. He was also aware that the records were

8 Cir., 1973, 486 F.2d 776, 779; Xydas v. United States, 1971, 144

U.S.App.D.C. 184, 445 F.2d 660, 668.

9a

no longer in the store as of the middle of 1971, two

years after the IRS began its investigation but nearly

two full years before any indictments were handed down.

D. Reasonableness of Defendant’s

Discovery Request

Irrespective of the materiality of the documents re-

quested by defendant, we believe the request was not

reasonable, as required by Rule 16(b), under all the cir-

cumstances. To be reasonable a request for documents

must not be unduly burdensome to the Government, and,

equally important, must be framed in sufficiently spe-

cific terms to show the Government what it must produce.

See United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350,

1355. General descriptions of the materials sought and

conclusory arguments as to their materiality have been

rejected repeatedly as insufficient under Rule 16(b).

a States v. White, 5 Cir., 1971, 450 F.2d 264,

A

If a defendant is requesting documents he has

never seen, he obviously cannot designate specifically

the items sought, although a concrete showing of ma-

teriality is still required. See United States v. Hughes,

5 Cir., 1969, 413 F.2d 1244, 1254. In this case, however,

defendant was familiar with the disputed documents and

knew they had been removed from their place of storage;

yet nowhere in defendant’s discovery motion is there any

specific mention of these documents.” Not until his mo-

* See United States v. Hughes, 5 Cir., 1969, 413 F.2d 1244, 1254;

Downing v. United States, 5 Cir., 1965, 348 F.2d 594, 599: United

States v. Moore, 6 Cir., 1971, 439 F.2d 1107, 1108; United States v.

Conder, 6 Cir., 1970, 423 F.2d 904, 910; United States v. Evanchik,

2 Cir., 1969, 413 F.2d 950, 953; United States v. Fioravanti, 3 Cir.,

1969, 412 F.2d 407, 411; United States v. Jordan, 2 Cir., 1968, 399

F.2d 610, 615.

* We do not believe that defendant’s request for all documents

“belonging” to him was sufficient to notify the Government that it

10a

tion for a new trial did defendant specifically request the

documents in question and specifically state why he be-

lieved they were material. Under the circumstances, de-

fendant’s discovery request was not sufficiently specific

to apprise the Government of what was sought or to

permit the trial court to determine in a timely fashion

whether material evidence had not been produced.

E. Harmless Error

If, contrary to our interpretation of this case, er-

ror was committed by the trial court, we are con-

vinced it was harmless. See United States v. Hilde

brand, 5 Cir., 1975, 506 F.2d 406, 408-410.° The evi-

dence of this defendant’s guilt is very substantial. The

Government showed that Ross had regularly withheld

substantia! amounts of cash from his business deposits,

and had used some of this cash to purchase Treasury

bonds (the income from which was not reported) and

bank money orders, putting the remainder in a special

bank account. Ross’ defenses of prior cash accumula-

tion and gifts from his father were refuted by proof

that Ross, by his own admission, had invested all of his

accumulated cash in his motel business, and by proof

that his father had insufficient income to make the large

cash gifts alleged.

was being asked for his father’s personal records and for the

records of a business no longer owned by the defendant. As the

District Court noted, whether Ross had legal title to the papers

was hardly clear. Moreover, proprietary interest is no longer a

relevant criterion under Rule 16(b). See United States v. Crisona,

S.D.N.Y., 1967, 271 F.Supp. 150, aff’d 2 Cir., 1969, 416 F.2d 107.

10 See United States v. Rojas, 5 Cir., 1974, 502 F.2d 1042, 1045;

United States v. White, 5 Cir., 1971, 450 F.2d 264, 268; United

States v. Hinkle, 1973, 159 U.S.App.D.C. 334, 487 F.2d 1205, 1206-

1207; United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350, 1355;

United States v. Bryant, 1971, 145 U.S.App.D.C. 259, 448 F.2d

1182, 1184; United States v. DeLeo, 1 Cir., 1970, 422 F.2d 487,

499; United States v. Crisona, 2 Cir., 1969, 416 F.2d 107, 115.

lla

This Court has held that “an error in adminis-

tering the discovery rules is not reversible absent a

showing that the error was prejudicial to the substantial

rights of the defendant.” United States v. James, 5

Cir., 1974, 495 F.2d 434, 436. See United States v. Mil-

ler, 5 Cir., 1974, 500 F.2d 751, 755; United States v.

Saitta, 5 Cir., 1971, 443 F.2d 830, 831; Mullins v.

United States, 8 Cir., 1973, 487 F.2d 581, 589; United

States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615. In

this case the accounting records introduced by the Gov-

ernment, although not produced before trial, were dis-

cussed in the IRS agent’s report, which was furnished to

defendant several days before the records were offered

in evidence. Thus, even if the records should have been

produced before trial, we believe defendant had sufficient

opportunity to consider this evidence, or at least to re-

quest more time. See United States v. James, supra,

495 F.2d at 436-437; Pierce v. United States, 5 Cir.,

1969, 414 F.2d 163, 169; United States v. Amabile, 7

Cir., 1968, 395 F.2d 47, 52; United States v. Knohl, 2

Cir., 1967, 379 F.2d 427, 441-442. As for the few

monthly reports that were not introduced into evidence,

defendant has failed to show any prejudice from not re-

ceiving those documents.

On the basis of this inquiry into the materiality

of the evidence not produced, the reasonableness of de-

fendant’s discovery requests, and the possibility of preju-

dice, we perceive no abuse of discretion in the trial court’s

refusal to grant a new trial on grounds of noncompliance

with its discovery order. See United States v. Smaldone,

10 Cir., 1973, 484 F.2d 311, 320-321; Meyer v. United

States, 8 Cir., 1968, 396 F.2d 279, 283.

III. Failure to Disclose Brady Material

Defendant also contended in his motion for a new trial

that the Government had failed to disclose evidence favor-

12a

able and material to his defense, as required by Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). The evidence not disclosed in this case is far

different in importance from the evidence prosecutors

have been required to divulge under Brady. Cf. Moore

v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706

(1972) (misidentification of defendant by prosecution

witness on an earlier occasion, and diagram of murder

scene showing poor vantage point of eyewitness) ; United

States v. Frick, 5 Cir., 1973, 490 F.2d 666, 671 (promise

not to oppose probation of Government witness) .”

Moreover, the trial court examined the documents

in camera and specifically found that none was ex-

culpatory—a method of dealing with Brady contentions

that this Court and others have approved. See United

States v. Sanchez, 5 Cir., 1975, 508 F.2d 388; Flanagan

v. Henderson, 5 Cir., 1974, 496 F.2d 1274, 1277; Tagli-

anetti v. United States, 1 Cir., 1968, 398 F.2d 558, 572,

aff'd 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969).

We find no basis for overturning the trial court’s finding.

As was true in United States v. Register, 5 Cir., 1974,

496 F.2d 1072, 1081,

[a]n in camera examination by the trial judge con-

firmed the government’s statement that [the evi-

dence in question] contained no exculpatory Brady

material. We will not go beyond the trial court’s

finding to encourage shipping prosecutor’s files to

™ United States v. Tashman, 5 Cir., 1973, 478 F.2d 129 (un-

specified promise to coconspirator contingent upon the value of his

testimony); Evans v. Janing, 8 Cir., 1973, 489 F.2d 470 (police

report stating that an eyewitness had failed to identify a photo-

graph of the defendant); United States v. Poole, 7 Cir., 1967,

379 F.2d 645 (physician’s report in rape case concluding there

was no evidence of penetration); Barbee v. Warden, Maryland

Penitentiary, 4 Cir., 1964, 331 F.2d 842 (ballistics and finger-

print reports showing that a revolver not belonging to the de-

fendant was used in the crime); United States v. Wilkins, 2 Cir..

1964, 326 F.2d 135 (existence of two disinterested eyewitnesses who

would have testified that defendant was not involved in robbery).

13a

the appellate court whenever the defense cries

Brady.

IV. Government Misconduct in Acquiring the Disputed

Documents

Defendant argues that in acquiring the business

records from his stepbrother Taylor, the Government

broke its promise not to remove or Xerox his records. It

is true that breach of a promise made to a defendant by

Government officials violates due process in some circum-

stances. See Santobello v. New York, 404 U.S. 257, 92

S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Scan-

land, 5 Cir., 1974, 495 F.2d 1104, 1106. In this case,

however, there was no such breach. The IRS agents

asked defendant for records from 1965 through 1969.

He provided these at his accountant’s office on the con-

dition that they not remove or copy the records. The

agreement clearly related only to those specific records

and did not obligate the agents, as defendant argues, to

ignore documents discovered through other sources.

The manner in which the records were acquired

from Taylor was also entirely proper.'** The IRS agents

secured some of these records from an attorney who han-

dled Taylor’s claims against his mother’s estate and the

remaining records from Taylor himself. Obtaining these

documents was proper, because they were undertaken

with the consent of Taylor and his attorney. See United

States v. Thompson, 5 Cir., 1970, 421 F.2d 373; Holzhey

v. United States, 5 Cir., 1955, 223 F.2d 823; United

States v. DiPrima, 1 Cir., 1973, 472 F.2d 550; Shorey v.

Warden, Maryland State Penitentiary, 4 Cir., 1968, 401

F.2d 474. Cf. Comment, Third-Party Consent Searches:

12 Because we have concluded that defendant cannot prevail on the

merits of this issue, we need not determine whether he has estab-

lished his standing to contest the searches at issue. See Brown

v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

l4a

An Alternative Analysis, 41 U.Chi.L.Rev. 121 (1973).

The trial court correctly found that there was “not the

slightest evidence of any overbearing threat, trick or

deception on the government’s part.”

Having reviewed all of defendant’s contentions care-

fully, we find no reversible error.

Affirmed.

15a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1974

No. 74-2969

D. C. Docket Nos. CR-20,406 & CR-20,550

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

DELOY C. Ross,

Defendant-A ppellant.

Appeal from the United States District Court for the

Western District of Louisiana

Before AINSWORTH, GODBOLD and SIMPSON,

Circuit Judges

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Louisiana, and was argued by coun-

sel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed.

April 21, 1975

Issued as Mandate:

l6a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-2969

[Filed May 23, 1975, U. S. Court of Appeals,

Edward W. Wadsworth, Clerk]

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

DELOY C. Ross,

Defendant-A ppellant.

ON CONSIDERATION OF THE APPLICATION of

the appellant in the above numbered and entitled cause

for a stay of the mandate of this Court therein, to enable

appellant to apply for and to obtain a writ of certiorari

from the Supreme Court of the United States. IT IS

ORDERED that the issuance of the mandate of this

Court in said cause be, and the same is stayed to and

including June 15, 1975, the stay to continue in force

until the final disposition of the case by the Supreme

Court, provided that within the period above mentioned

there shall be filed with the Clerk of this Court the cer-

tificate of the Clerk of the Supreme Court that certio-

rari petition has been filed. IT IS FURTHER OR-

DERED that the Clerk shall issue the mandate upon the

filing of a copy of an order of the Supreme Court deny-

ing the writ, or upon the expiration of the stay granted

herein, unless the above mentioned certificate shall be

filed with the Clerk of this Court within that time.

/s/ Robert A. Ainsworth

United States Circuit Judge