United States v. Robert Butler

concurring:

I generally concur in the opinion of the majority. Yet I go a little farther.

I am deeply troubled and offended by the conduct of the Government in this case. As my Brother Wright, joined by Judges Goodwin and Schwartz, so cogently wrote in the vacated 1974 decision of our court, now reinstated by our present decision, the “[pjrosecution’s acquiescence in and corroboration of Dur-den’s denials at trial were followed by continued deception and half-truths on appeal and at the hearing on appellants’ new trial motion.” After reviewing all of the facts presented here, including those adduced at the evidentiary hearing upon remand from the vacated 1974 decision of our court, I am of the opinion that the gravity of the governmental misconduct is significantly understated.

The District Court, in the evidentiary hearing on remand, found that the United States Attorney’s office had made no direct promise to Durden. Although the evidence seems to me to indicate strongly that the United States Attorney’s office actively made direct representations to Durden, I reluctantly agree with the majority in upholding the findings of fact made below, especially in light of the District…

On December 18, 1974, another panel of this court (Circuit Judges Wright and Goodwin and District Judge Schwartz) reversed a denial of this same defendant’s motion for a new trial.

The government thereafter represented to this court, on a petition for rehearing, that an unresolved conflict in the evidence supporting the underlying motion had been discovered and that this conflict required an evidentiary hearing. The court withdrew its opinion and remanded the cause for the evidentiary hearing. That hearing was concluded in due course, and the district court made findings and conclusions. Once again the district court denied the motion for a new trial. That denial is challenged in this appeal.

Because the essential facts and the correct statement of the applicable law appear in the December 18, 1974, opinion, we adopt it as our own and incorporate the text substantially as originally filed ** :

These appellants are again before us, this time appealing from an order denying their motions for a new trial under Rule 33, Rules of Criminal Procedure. Their earlier convictions had been affirmed on appeal. United States v. Butler, 472 F.2d 1 (9th Cir.), cert. den. 414 U.S. 864 , [ 94…

567 F.2d 885 UNITED STATES of America, Appellee, v. Robert BUTLER, Appellant. No. 76-3275. United States Court of Appeals, Ninth Circuit. Jan. 17, 1978. As Amended March 15, 1978. Rehearing and Rehearing En Banc Denied April 7, 1978. Barry Tarlow, Los Angeles, Cal., for appellant. Robert L. Brosio, U. S. Atty., Los Angeles, Cal., for appellee. Appeal from the United States District Court for the Central District of California. Before ELY and GOODWIN, Circuit Judges, and SOLOMON, * District Judge. PER CURIAM: 1 On December 18, 1974, another panel of this court reversed a denial of this same defendant's motion for a new trial. 2 The government thereafter represented to this court, on a petition for rehearing, that an unresolved conflict in the evidence supporting the underlying motion had been discovered and that this conflict required an evidentiary hearing. The court withdrew its opinion and remanded the cause for the evidentiary hearing. That hearing was concluded in due course, and the district court made findings and conclusions. Once again the district court denied the motion for a new trial. That denial is challenged in this appeal. 3 Because the facts of the case and the…