Unpublished Disposition, 914 F.2d 264 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1987)

No. 88-1075.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and KEEP,1  District Judge.

MEMORANDUM2 

Richard Henri DeRoy appeals his conviction by a jury of two counts of violating 26 U.S.C. § 7203, failure to file income tax returns. His appeal addresses two primary issues. First, Appellant contends that his motion for a continuance should have been granted, since he was suffering from a medical condition that rendered him incompetent to stand trial. Second, Appellant alleges that the Government committed a number of irregularities which resulted in an unfair trial.

DeRoy appeals the trial court's refusal to grant a third continuance of the trial. He contends that he suffered from avitaminosis,3  which condition rendered him physically incompetent to stand trial.

The determination of mental fitness to stand trial is a factual determination. Austad v. Risley, 761 F.2d 1348, 1350 (9th Cir. 1985). Thus, competency determinations are reviewed under the clearly erroneous standard. Chavez v. United States, 655 F.2d 512, 517 (9th Cir. 1981). The decision whether to grant or deny a continuance lies within the sound discretion of the trial court and will not be overturned on appeal absent clear abuse of discretion. United States v. Studley, 783 F.2d 934, 948 (9th Cir. 1986). The issue on review is whether the district court's refusal to grant the continuance was "so unreasonable and arbitrary as to amount to an abuse of discretion." Ruiz v. Hamburg-American Line, 478 F.2d 29, 31-32 (9th Cir. 1973).

On the record before us, we affirm. First, the court reduced the trial day to four hours at Appellant's treating physician's suggestion. Second, no clear evidence was presented to the trial judge that Appellant in fact suffered from avitaminosis. The only evidence submitted was a statement by a psychiatrist, who saw Appellant once, that he suffered from "apparent avitaminosis." Moreover, a government psychiatrist examined Appellant and found him fully competent.

Finally, there is nothing in the record that supports Appellant's attorney's contention that Appellant's physical impairment rendered him incompetent at trial. The "constitutional standard" for determining mental competency to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 789 (1960) (per curiam); United States v. Mills, 597 F.2d 693, 699 (9th Cir. 1979). Although counsel alleged in oral argument before this court that Appellant was not competent to stand trial, during trial counsel never placed any problems of Appellant's competency on the record. Hence, the record does not support Appellant's contention.

The trial court applied the correct standard in denying the continuance, i.e., whether Appellant's infirmity rendered him incapable of communicating with his counsel. Dusky, 80 S. Ct. at 789. Essentially, there was no evidence offered at the hearing on Appellant's motion for a continuance, nor is there any evidence in the trial record that Appellant was incapable of "rational communication" with counsel or that he had no recollection of the facts of the case. Moreover, although this contention is not supported by the record, Appellant contends on appeal that he "often slept, ate, or was excused for kidney dialysis" during the trial, Appellant's Brief at 6. This behavior does not rise to the level of "bizarre" or "erratic" behavior necessary to demonstrate incompetence to stand trial. See Bassett v. McCarthy, 549 F.2d 616, 620 (9th Cir. 1977); Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985). Therefore, the court's factual finding that Appellant was competent to stand trial was not clearly erroneous.

2. Refusal to Inquire About Prospective Jurors' Audit History

On July 17, 1987, Appellant proposed voir dire questions relating to the prospective jurors' audit history.4  However, at a pretrial hearing dealing with voir dire issues before Magistrate Tokairin on October 27, 1987, counsel did not draw those questions to the court's attention. In fact, at the October 27, 1987 hearing, Appellant made only two requests with regard to the jury. He requested disclosure of jury panel information and leave to submit a written questionnaire to the jury array. Magistrate Tokairin found that the Clerk's Office had already made available to both counsel the standard information submitted by jurors. Therefore, that portion of Appellant's request was moot. The Magistrate denied counsel permission to submit the questionnaire. Since it contained no questions pertaining to the jurors' audit history, however, that denial is of no significance to Appellant's claim of error. On November 9, 1987, when the jury was being selected, Appellant renewed his motion to submit the jury questionnaire at jury selection, and again the motion was denied. The court noted, however, that in conducting voir dire, it would probably cover the areas with which counsel was concerned. More specifically, the court stated that although it would conduct the initial voir dire, it would permit both counsel to ask additional questions if they felt it was necessary.

After Magistrate Tokairin finished his voir dire, he called a bench conference. The record shows the following:

COURT: ... I've reviewed Mr. Minns proposed voir dire questions. This is the completion of my questions. Mr. Minns, you have any additional question you'd like to propose based on the Court's conduct of the voir dire?

MINNS: Yes, Your Honor, one. I would like the Court to inquire very strongly as to whether or nor the jurors can distinguish between a mistake and a crime. I think that's the essence of the case, is whether or not Mr. Deroy was mistaken in listening to the advice that he got or whether he had criminal intent, so that's my question, Your Honor.

R.T., pp. 51-52 (Nov. 9, 1987).

Hence, Appellant was given the opportunity to ask the court to inquire as to the jurors' audit history. He did not. Therefore, he cannot prevail on his argument that he was not given the opportunity to ask those questions. He was. Moreover, Appellant could have obtained information regarding the prospective jurors' past or present audit history pursuant to 26 U.S.C. § 6103(h) (5). However, he did not attempt to obtain the information from Treasury as was his right. See United States v. Hashimoto, 878 F.2d 1126 (9th Cir. 1989).

Moreover, trial courts are given "wide latitude" in determining how best to conduct voir dire. United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983) (per curiam). "Failure to ask specific questions will be reversed only for abuse of this discretion. Abuse of discretion will be found, however, if the questioning is not reasonably sufficient to test the jury for bias or partiality." Id. The record reflects that the court questioned the panel concerning prejudice in favor of the government. The record also reflects that Appellant never requested the judge to inquire as to the prospective jurors' audit history. Therefore, the court committed no error.

As noted, Appellant was given the opportunity at the conclusion of the judge's voir dire to inquire as to the jurors' audit history, and he did not do so. Appellant waived his right to the specific information he claims was error. The record does not support a finding of error.

Appellant contends the Government improperly withheld discoverable "statements" requested by counsel during discovery and at trial. The alleged statements consist of three certified mail return receipt cards. Defendant contends that Fed. R. Crim. P. 16(a) (1) (A) required the Government to produce these cards. The Government introduced these cards into evidence during the testimony of one of its rebuttal witnesses and later alluded to them in its rebuttal.

Presumably, Appellant does not cite as error the Government's introducing the receipt cards as evidence at trial, because they were received absent any objection by Appellant. Evidentiary rulings are generally not reviewed except on grounds asserted at a contemporaneous objection. United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). Where the appellant fails to object to allegedly improper evidence at trial, the standard of review is plain error. Plain error is recognized only where exceptional circumstances require the court to act to avoid a miscarriage of justice. United States v. Kupau, 781 F.2d 740, 745 (9th Cir. 1986). Besides noting that earlier disclosure might have refreshed his memory or enabled him to impeach the cards, Appellant alleges no actual prejudice. Therefore, there is no plain error due to their receipt in evidence.

Moreover, the receipt cards do not constitute statements under Rule 16 or the Jencks Act; therefore Rule 16 does not compel their disclosure. Indeed, the Government did not introduce the cards in its case-in-chief, because the handwriting on them was illegible and could not conclusively be attributed to Appellant. In addition, the Government is under no compulsion to turn over evidence it does not intend to use in its case in chief unless it falls within the dictates of Brady v. Maryland, 373 U.S. 83 (1963), or some other recognized judicial compulsion, predicated upon affirmative aid to the defendant's case. See, e.g., United States v. Whitney, 633 F.2d 902 (9th Cir. 1980). The receipt cards do not fall into this category. Finally, the law is well settled that the government may use any evidence, even illegally obtained evidence, to impeach trial testimony. Harris v. New York, 401 U.S. 222, 224-26 (1971).

In short, there is no error.

According to Appellant, the Government introduced various documents into evidence by attaching them to his income tax returns. These documents included an internal IRS form identifying Appellant and his wife as tax protesters and letters of warning allegedly sent to his home. Appellant's objection is two-fold. He contends that the internal document is hearsay and prejudicial and that the jury might infer that the DeRoys received the warning letters and sent them back to the I.R.S. According to the Government, internal documents of the I.R.S. that were added to the file but not sent to the defendant were deleted. It contends that only documents sent by the I.R.S. to the defendant were received in evidence.

It appears that when Defendant's 1977 tax return was initially introduced into evidence, it did have several documents attached to it. It also appears, however, that the internal I.R.S. document objected to by Appellant was detached and was not admitted at all. See R.T. Vol. I, pp. 81-83. Regarding the letters, Appellant did not raise the possibility that the jury might draw a negative inference from them at trial. Counsel was primarily concerned with the internal document labelling his client as a tax protester. Moreover, although the letters were initially presented as an attachment to Appellant's return, they were marked separately and were admitted with Appellant's counsel's apparent consent. In sum, the allegations of error are unfounded. Appellant has failed to demonstrate their admission constituted plain error. Rogers, 769 F.2d at 1425.

5. Government's Deliberate Misleading of the Jury

Appellant objects to three statements the prosecutor made during closing argument. The first two are interrelated and will be discussed together. They are as follows:

We know that the appellate state judge told Mr. DeRoy: Your issues, sir, are frivolous, the Supreme Court of the United States has rejected them.

R.T. Vol. VI, p. 75.

The Supreme Court of the United States has found them to be a joke, the Supreme Court of the State of Hawaii has found them to be a joke, the tax appeals court has found them to be a joke.

Id., p. 79.

A prosecutor is given a certain degree of latitude in summation. United States v. Calandrella, 605 F.2d 236, 254 (6th Cir. 1979). An occasional "rhetorical flourish" does not necessarily constitute prosecutorial misconduct and lead to reversible error.

"When a prosecutor's remarks are nonprejudicial, or constitute reasonable inferences from the evidence, no prosecutorial misconduct can be demonstrated. The critical inquiry is whether, in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985). The comments at issue here were based entirely upon evidence adduced at trial. The evidence showed that Appellant was informed that the Supreme Court of the United States, the Supreme Court of the State of Hawaii, and other inferior courts had rejected the positions he took with regard to federal reserve notes not constituting money within the meaning of the Internal Revenue Code. Under the Patel standard, there is no reversible error.

Moreover, the record reflects that Appellant's counsel failed to object when the statements were made. Hence, under Rogers, we only review for plain error, which Appellant has failed to demonstrate.

The third statement challenged by Appellant is the prosecutor's following comment during his closing argument: "Why didn't they answer his 1985 affidavit? That's the affidavit that's exactly the same for Mrs. DeRoy and Mr. DeRoy. Because, first of all, we don't know that he ever sent it to anybody, ..." R.T.Vol. IV, p. 106. Appellant asserts that this is a misrepresentation.

It does appear that the Government did know that the affidavit had been received by the I.R.S. See Reporter's Transcript Volume II, page 7, where the prosecutor admits, albeit out of the presence of the jury, that the affidavit was received by the I.R.S., so it was sent. Although it may have been error, Appellant alleges no prejudice and the court finds none. In any event, the remarks were not "so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." Patel, 762 F.2d at 795. Therefore, there is no reversible error.

Appellant's next claim is that the Government shifted the burden of proof to him in its closing argument. The Government's statement was

I know that you have been following the evidence very, very, very closely and listening to all of the testimony, and, of course, as you know, the burden and responsibility of this case is passing from both of the lawyers, and the judge, shortly after we're done making our remarks, will be instructing you on what the law is and then it becomes your obligation to weigh the evidence and reach a decision. A decision which is based on that evidence and which is fair to both parties--the United States and the defendant.

R.T.Vol. VI, p. 65.

This statement does not shift the burden of proof in this case to the defendant. It is a fair comment. There is no error.

Appellant claims that the Government called witnesses whose names did not appear on the witness list provided by the Government at jury selection or on the amended list provided in the middle of trial. The Government contends that " [a]ll of the allegedly unnamed witnesses who were called at trial were identified to the defendant long before their appearance." Government's Brief at 18.

First, defendants are not entitled to a complete witness list in advance of trial in non-capital cases. United States v. Sukumolochan, 610 F.2d 685, 688 (9th Cir. 1980). Moreover, it is within the trial court's discretion to allow a party to present additional evidence, and that determination is reversed only when there is a clear abuse of discretion. United States v. McQuistern, 795 F.2d 858, 864 (9th Cir. 1986). Since Appellant alleges no prejudice from the claimed unidentified witness's testimony, the court finds no clear abuse of discretion in admitting the testimony of unidentified witnesses (if there were any).

Appellant's last claim of error is that the Government impugned his integrity during jury selection. The colloquy at issue, which occurred during voir dire, is as follows:

MR. MINNS: ... Until I get the report from the government I don't know the two names of the government's doctors who examined Mr. Deroy. I may or may not call them.

THE COURT: All right.

MR. MINNS: But the government could read the names of those two doctors.

MR. OSBORNE: There are not two doctors, Your Honor. Mr. Deroy failed to appear at one of those appointments.

MR. MINNS: Your Honor,--

MR. OSBORNE: There's only one doctor.

R.T., pp. 31-32 (Nov. 9, 1987).

In determining whether a trial court's denial of a motion for mistrial is proper, the applicable standard is whether the denial constituted clear error. United States v. Brutzman, 731 F.2d 1449, 1453 (9th Cir. 1984). The record reflects and the court found that the dialogue concerning the number of doctors occurred solely because Appellant's counsel raised the issue in open court in front of the jury panel. The Government's remarks were not sufficiently egregious to warrant a mistrial. There is no clear error. See Brutzman, supra.

Having found no reversible error, we affirm.

 1

The Honorable Judith N. Keep, United States District Judge for the Southern District of California, sitting by designation

 2

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth CIr.R. 36-3

 3

Avitaminosis is a side effect of dialysis. It is treated by a 90-day dose of high-potency vitamin supplements

 4

Question 12 on the list of proposed questions reads as follows:

 12

A. Have the personal or business income tax returns of any member of the Jury Panel ever been audited by the Internal Revenue Service, or does any member fear or anticipate such an audit?

B. Does any member of the Jury Panel feel that his/her participation in this trial might tend to increase his/her chances of being audited?

Record Excerpts, p. 21.