United States v. Darrel E. Shelton

588 F.2d 1242 79-1 USTC P 9189 UNITED STATES of America, Plaintiff-Appellee, v. Darrel E. SHELTON, Defendant-Appellant. No. 77-1575. United States Court of Appeals, Ninth Circuit. Oct. 27, 1978. Thomas R. Sheridan (argued), of Simon & Sheridan, Los Angeles, Cal., for defendant-appellant. Ernest J. Brown, Asst. U. S. Atty. (argued), M. Carr Ferguson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for plaintiff-appellee. Appeal from the United States District Court For the Central District of California. Before DUNIWAY, Senior Circuit Judge, ELY, Circuit Judge, and EAST, Senior District Judge. * EAST, District Judge: THE APPEAL Darrel E. Shelton (Shelton) appeals his judgment of conviction and suspended sentence entered upon a jury verdict of guilty on one count of violating 26 U.S.C. § 7206 (1) (willfully filing a false income tax return. 1 We note jurisdiction under 28 U.S.C. § 1291 and affirm. ISSUES ON APPEAL Shelton urges these issues for review: 1. The evidence was insufficient to support the jury's verdict; 2. Various forms of Government misconduct deprived him of a fair trial; 3. The District Court erred in refusing to submit Shelton's requested special…

(dissenting):

I respectfully dissent. The record quite clearly reveals that repeated requests for possibly exculpatory evidence were essentially and inexcusably disregarded by the Government prosecutors to whom the requests were properly directed. Not until the eve of trial did the prosecution suddenly produce more than 500 pages of material that, as I see it, should have been delivered to the defense long before. Moreover, the prosecution followed the same unsavory pattern during the trial and thereafter, not delivering additional material until there had been continued requests by the defense and, also, prodding by the trial judge. In these circumstances, and in the light of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), the judgment of conviction should be reversed.

The Government’s case rested heavily upon the testimony of one Prohaska, a former employee of the Union. Without his testimony, the evidence would have been insufficient to support Shelton’s conviction. The voluminous material withheld by the Government, especially the records containing the denials by Shelton’s accountant of a coverup meeting, impeached Prohaska and Prohaska’s…

THE APPEAL

Darrel E. Shelton (Shelton) appeals his judgment of conviction and suspended sentence entered upon a jury verdict of guilty on one count of violating 26 U.S.C. § 7206 (1) (willfully filing a false income tax return. 1 We note jurisdiction under 28 U.S.C. § 1291 and affirm.

ISSUES ON APPEAL

Shelton urges these issues for review:

1. The evidence was insufficient to support the jury’s verdict;

2. Various forms of Government misconduct deprived him of a fair trial;

3. The District Court erred in refusing to submit Shelton’s requested special verdict form; and

4. The District Court improperly instructed the jury.

*1244 FACTS

Shelton was charged with under reporting his income for the year 1972. At that time, he was the Business Manager for Iron Workers Union, Shopmen’s Local 509. The essence of the Government’s case was that Shelton received and failed to report as income payments in property and cash from Joseph Hauser in return for getting the Union to shift its prepaid health insurance plan from Aetna to National Prepaid Health Plan (NPHP), one of several companies run by Hauser.

While the Government elected to proceed on the omission of specific items theory,…