Alfred H. Osborne, Sr. v. United States

371 F.2d 913 Alfred H. OSBORNE, Sr., Appellant, v. UNITED STATES of America, Appellee. No. 20240. United States Court of Appeals Ninth Circuit. Jan. 18, 1967, Rehearing Denied Feb. 21, 1967. Morris A. Shenker, Murry L. Randall, John L. Boeger, St. Louis, Mo., Alfred H. Osborne, Kansas City, Mo., for appellant. Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., Robert L. Brosio, Asst. U.S. Atty., Asst. Chief, Crim. Div., Jules D. Barnett, Asst. U.S. Atty., Chief, Fraud Sect., Los Angeles, Cal., for appellee. Gladys Towles Root, Los Angeles, Cal., for appellee, Melnick. Before BARNES, HAMLIN and BROWNING, Circuit Judges. BARNES, Circuit Judge. 1 Appellant was indicted, together with codefendant Sam Melnick, in a twenty count indictment; the first eighteen counts charging violation of 18 U.S.C. 1343 (fraud by wire); 1 the nineteenth count charging a violation of 18 U.S.C. 2314 (interstate transportation of monies obtained by fraud); 2 and the twentieth a violation of 18 U.S.C. 371 (conspiracy to defraud). 2 At a jury trial, appellant was convicted of substantive counts 5, 6, 16 and 18; and of substantive count 19, and the conspiracy count, 20. After…

Appellant was indicted, together with codefendant Sam Melnick, in a twenty count indictment; the first eighteen counts charging violation of 18 U.S.C. § 1343 (fraud by wire); 1 the nineteenth count charging a violation of 18 U.S.C. § 2314 (interstate transportation of monies obtained by fraud); 2 and the twentieth a violation of 18 U.S.C. § 371 (conspiracy to defraud).

At a jury trial, appellant was convicted of substantive counts 5, 6,16 and 18; and of substantive count 19, and the conspiracy count, 20. After a week of trial, the codefendant Melnick entered a guilty plea to the conspiracy count. Appellant was sentenced to five years on each of the six counts; the sentences on 5, 6 and 16 to run concurrently with each other, and 18, 19 and 20 to run concurrently with each.other but consecutively to sentences on 5, 6 and 16.

Jurisdiction below rested on 18 U.S.C. § 3231 , and rests here on 28 U.S.C. §§ 1291 and 1294.

The facts are complicated, and difficult to accurately outline. This difficulty is enhanced by inadequate references to the reporter’s transcript in the government’s brief.

*916 I. Sufficiency of the Evidence on Conspiracy Count (Appellant’s Specification of…

(dissenting in part).

With one exception appellant’s specifications disclose no error, or error which was not fairly presented to the trial court, or error which was harmless on the whole record. The exception relates to the court’s refusal to require disclosure of a trial witness’s grand jury testimony for use in cross-examination.

The only possible conclusion that can be reached from a balancing of the interests of the government and appellant (as required by Dennis v. United States, 384 U.S. 855, 871-872 , 86 S.Ct. 1840 , 16 L.Ed.2d 973 (1966)) is that appellant should have been granted access to portions of the grand jury transcript containing Mrs. Yergin’s testimony on subjects to which she testified at trial.

The traditional reasons for secrecy (Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 405 , 79 S.Ct. 1237 , 3 L.Ed.2d 1323 (1959) (Justice Brennan dissenting)) were obviously inapplicable; and the government has suggested none which were peculiar to this case.

The state has no legitimate interest simply in denying the accused an opportunity to compare the grand jury and trial testimony of government witnesses. Presumably the testimony will be the same. If…