Penal Code Section 1054 Authorities

pc 1054 authorities
8. Due Process
**Defendants have a due process right to disclosure prior to the
preliminary hearing of evidence that is both favorable and material, in
that its disclosure creates a reasonable probability of a different
outcome at the preliminary hearing; this right is independent of, and thus
not impaired or affected by, the criminal discovery statutes. Bridgeforth
v. Superior Court (2013, 2d Dist) 214 Cal App 4th 1074, 154 Cal Rptr 3d
528, 2013 Cal App LEXIS 226, review denied, (2013, Cal.) -- P.3d --, 2013
Cal. LEXIS 5107.
1620 Bias, prejudice, or conduct of individual member or members of
jury panel as ground for challenge to array or to entire panel, 76
A.L.R.2d 678 (1961) HN: 210 (Cal.Rptr.2d)
P.C. 1054.1. Prosecuting attorney; disclosure of materials to defendant
The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and
information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies:
(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the
outcome of the trial.
(e) Any exculpatory evidence.
**(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the
prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the
case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial.
*95 ALR 3rd 832, Accused's Right to Discovery or Inspection of Rap Sheets or Similar Police Records About
Prosecution Witnesses.
**12. ---- Time of disclosure

**Defense counsel was not deficient, as element of claim for ineffective
assistance, in failing to file formal discovery motion or affirmatively seek
pretrial discovery as to two supplemental police reports that were not
disclosed until after trial had begun, in prosecution for burglary, assault
with deadly weapon, kidnapping, criminal threats, elder abuse, false
imprisonment, obstructing telephone, and being felon in possession of firearm;

prosecution was obligated by statute to turn over reports at issue, even
absent request from defense counsel, counsel requested discovery from
prosecution well in advance of trial, and when tardy reports were disclosed,
counsel moved for their exclusion. Rogers v. Wong, E.D.Cal.2009, 637 F.Supp.2d
807. Criminal Law
1905
13. ---- Delayed disclosure
**Prosecution's delay in disclosing two supplemental police reports until trial was not result of bad faith, as would
render reports inadmissible, under California law, in prosecution for burglary, assault with deadly weapon,
kidnapping, criminal threats, elder abuse, false imprisonment, obstructing telephone, and being felon in possession
of firearm. Rogers v. Wong, E.D.Cal.2009, 637 F.Supp.2d 807. Criminal Law
627.8(6)
**27 ALR 4th 1188, Right Of Accused in State Courts to Have Expert Inspect, Examine, or Test Physical Evidence
in Possession Of Prosecution--Modern Cases.
P.C. 1054.5. Criminal cases; discovery orders; informal request;

testimony of witnesses; prohibition westlaw
(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter
shall be the only means by which the defendant may compel the disclosure or production of information from
prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or
any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist
them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall
make an informal request of opposing counsel for the desired materials and information. If within 15 days the
opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a
showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party
complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary
to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings,
delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or
any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any
untimely disclosure.
(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have
been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the
Constitution of the United States.
1. Validity
**Due process clause is not violated by requiring defendant to first make informal request to other party for
information before seeking court enforcement to effectuate defendant's reciprocal discovery rights, given that
prosecution must also obtain discovery of defense through same mechanism. Izazaga v. Superior Court (1991) 285
Cal.Rptr. 231, 54 Cal.3d 356, 815 P.2d 304, modified on denial of rehearing. Constitutional Law
4594(9);
Constitutional Law
4594(11)
4. Discretion of court
**The Court of Appeal would exercise its discretion to consider the argument, first raised in the People's reply brief
upon the People's petition for writ of mandate challenging exclusion of evidence as a discovery sanction in a
criminal trial, that the trial court exceeded its jurisdiction because it was required to exhaust less drastic sanctions
first. People v. Superior Court (Mitchell) (App. 2 Dist. 2010) 109 Cal.Rptr.3d 207, 184 Cal.App.4th 451, rehearing
denied , review denied. Criminal Law
1130(6)
7. Sufficiency of motion
**A criminal defendant's motion for discovery must describe the information sought with some specificity and
provide a plausible justification for disclosure. People v. Prince (2007) 57 Cal.Rptr.3d 543, 40 Cal.4th 1179, 156
P.3d 1015
8.5. Failure to comply
**Under statute providing that the court may prohibit the testimony of a witness as a discovery sanction only if all
other sanctions have been exhausted, the trial court exceeded its subject matter jurisdiction in precluding the
testimony of two prosecution witnesses and any testimony from prosecution witnesses regarding discovery not
previously provided as a discovery sanction, where the trial court failed to exhaust other sanctions first. People v.
Superior Court (Mitchell) (App. 2 Dist. 2010) 109 Cal.Rptr.3d 207, 184 Cal.App.4th 451, rehearing denied , review
denied. Criminal Law
627.8(6)
Fact that defendant had committed discovery violation in failing to timely disclose names of potential alibi
witnesses, presenting his sister and niece as surprise alibi witnesses near the end of capital murder trial, was relevant
to jury's assessment of the credibility of the witnesses' testimony. People v. Riggs (2008) 79 Cal.Rptr.3d 648, 44
Cal.4th 248, 187 P.3d 363, rehearing denied, certiorari denied 129 S.Ct. 2386, 556 U.S. 1240, 173 L.Ed.2d 1302.
Criminal Law
572
other sanctions have been exhausted, the trial court exceeded its subject matter jurisdiction in precluding dog scent
and gunshot residue evidence as a discovery sanction against the prosecution, where the trial court failed to exhaust
other sanctions first; the impact of the trial court's order was to exclude the People from calling a dog scent expert
and a gunshot residue expert. People v. Superior Court (Mitchell) (App. 2 Dist. 2010) 109 Cal.Rptr.3d 207, 184
Cal.App.4th 451, rehearing denied , review denied. Criminal Law
627.8(6)
12. Exclusion of evidence
other sanctions have been exhausted, the trial court exceeded its subject matter jurisdiction in precluding dog scent
and gunshot residue evidence as a discovery sanction against the prosecution, where the trial court failed to exhaust
other sanctions first; the impact of the trial court's order was to exclude the People from calling a dog scent expert
and a gunshot residue expert. People v. Superior Court (Mitchell) (App. 2 Dist. 2010) 109 Cal.Rptr.3d 207, 184
Cal.App.4th 451, rehearing denied , review denied. Criminal Law
627.8(6)
**Prohibiting testimony of witness is not appropriate discovery sanction in criminal case absent showing of
significant prejudice and willful conduct. People v. Gonzales (App. 5 Dist. 1994) 28 Cal.Rptr.2d 325, 22
Cal.App.4th 1744. Criminal Law
627.8(6)
**Court may delay or prohibit testimony of witness whose identity or paperwork was unreasonably withheld .
Sandeffer v. Superior Court (App. 4 Dist. 1993) 22 Cal.Rptr.2d 261, 18 Cal.App.4th 672. Criminal Law
629.5(2)
**Court may exclude witness' testimony if omission of witness during informal discovery is willful in hope of
obtaining tactical advantage. People v. Jackson (App. 4 Dist. 1993) 19 Cal.Rptr.2d 80, 15 Cal.App.4th 1197, as
modified , review denied. Criminal Law
629.5(2)
**Defendant's constitutional right to compulsory process was not denied by preclusion of exculpatory statement of
declarant which defendant had failed to disclose to People; defendant had statement months before trial and
admission of such potentially unreliable evidence untested by cross-examination would have prejudiced People's
case and undermined discovery process. People v. Jackson (App. 4 Dist. 1993) 19 Cal.Rptr.2d 80, 15 Cal.App.4th
1197, as modified , review denied. Witnesses
2(1)
**Dismissal is proper as a sanction for refusing to comply with discovery order when effect of the refusal is to deny
defendant's right to due process. People v. Brophy (App. 1 Dist. 1992) 7 Cal.Rptr.2d 367, 5 Cal.App.4th 932.
Criminal Law
627.8(6)
13. Sanctions, generally
**The provision of the Criminal Discovery Statutes stating that a court cannot dismiss a charge for a discovery
violation unless required to do so by the Constitution of the United States preserves judicial power to dismiss
charges for a violation of the prosecution's due process duty to disclose material evidence that is favorable to the
defense. People v. Gutierrez (App. 1 Dist. 2013) 153 Cal.Rptr.3d 832, 214 Cal.App.4th 343, modified on denial of
rehearing , review filed, certiorari denied 134 S.Ct. 684, 187 L.Ed.2d 577. Constitutional Law
4594(1)
The provision of the Criminal Discovery Statutes stating that a court cannot dismiss a charge for a discovery
violation unless required to do so by the Constitution of the United States preserves judicial power to dismiss
charges for a violation of the prosecution's due process duty to disclose material evidence that is favorable to the
defense. People v. Gutierrez (App. 1 Dist. 2013) 153 Cal.Rptr.3d 832, 214 Cal.App.4th 343, modified on denial of
rehearing , review filed, certiorari denied 134 S.Ct. 684, 187 L.Ed.2d 577. Constitutional Law
4594(9)
**Although a discovery sanction may include an element of punishment, the record must support a finding of
significant prejudice or willful conduct. People v. Bowles (App. 4 Dist. 2011) 129 Cal.Rptr.3d 290, 198 Cal.App.4th
318. Criminal Law
627.8(6)
**Prosecutor's Brady error, in failing to disclose material exculpatory evidence that could have been used to
impeach testimony of state's accident reconstruction expert regarding speed at which defendant was driving,
required reversal of defendant's conviction for driving under the influence and causing injury, where prosecutor had
relied on defendant's alleged speeding to demonstrate required violation of law, and expert's testimony was only
evidence offered that defendant exceeded speed limit. People v. Garcia (App. 4 Dist. 1993) 22 Cal.Rptr.2d 545, 17
Cal.App.4th 1169, modified on denial of rehearing , review denied. Criminal Law
1166(10.10)
15. Habeas corpus
**Under postconviction discovery statute, defendants are entitled to discovery to assist in stating a prima facie case
for habeas relief, i.e., before they actually file a habeas corpus petition. People v. Superior Court (Pearson) (2010)
107 Cal.Rptr.3d 265, 48 Cal.4th 564, 227 P.3d 858. Habeas Corpus
688
4. Sanctions
**The sanctions provided by Pen C 1054.5 for a violation of the
statutory duty to disclose specified information to the defense are
available only prior to the close of testimony and for so long as the
trial court has jurisdiction of a criminal case. Thereafter, any discovery
violation is measured by a posttrial standard under which there must be a
reasonable probability that, had the evidence been disclosed, the result
of the proceedings would have been different. People v. Bohannon (2000,
Cal App 2d Dist) 82 Cal App 4th 798, 98 Cal Rptr 2d 488, 2000 Cal App
LEXIS 605, review denied, (2000, Cal) 2000 Cal LEXIS 8951.
Trial court's power to impose partial dismissal as a sanction for a
discovery violation is subject to the same limitation as its power to
dismiss an entire charge as a sanction: under Pen C 1054.5(b), it cannot
do so unless dismissal is required by the Constitution of the United
States. People v. Superior Court (2008, 5th Dist) 163 Cal App 4th 28, 77
Cal Rptr 3d 352, 2008 Cal App LEXIS 760, review or reh'g denied, People v.
S.C. (Meraz) (2008, Cal.) 2008 Cal. LEXIS 9792.
In an attempted murder case, after defendant was unable to obtain
discovery of criminal records of prosecution witnesses under Pen C
1054.5(b), the trial court abused its discretion in ordering defense
counsel to provide subpoenaed materials to the prosecution; the error
impinged upon defendant's constitutional rights because defense strategies
and work product might be revealed to the prosecution. Teal v. Superior
Court (2004, Cal App 4th Dist) 117 Cal App 4th 488, 11 Cal Rptr 3d 784,
2004 Cal App LEXIS 441.
7. Counsel
**Pen C 1054.3 requires the disclosure of relevant oral statements
communicated directly to defense counsel by an intended witness or
communicated to counsel via an investigator or some other third party. The
disclosure requirement does not violate the privilege against selfincrimination, the right to effective assistance of counsel, attorneyclient privilege, or the attorney work product doctrine. Roland v.
Superior Court (2004, Cal App 3d Dist) 124 Cal App 4th 154, 21 Cal Rptr 3d
151, 2004 Cal App LEXIS 1936.
P.C. 1054.2. Disclosure of address or telephone number of victim or
witness; prohibition; exception
(a)(1) Except as provided in paragraph (2), no attorney may disclose or permit to be disclosed to a defendant,
members of the defendant's family, or anyone else, the address or telephone number of a victim or witness whose
name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1, unless specifically permitted to do so
by the court after a hearing and a showing of good cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or permit to be disclosed the address or telephone
number of a victim or witness to persons employed by the attorney or to persons appointed by the court to assist in
the preparation of a defendant's case if that disclosure is required for that preparation. Persons provided this
information by an attorney shall be informed by the attorney that further dissemination of the information, except as
provided by this section, is prohibited.
(3) Willful violation of this subdivision by an attorney, persons employed by the attorney, or persons appointed by
the court is a misdemeanor.
(b) If the defendant is acting as his or her own attorney, the court shall endeavor to protect the address and telephone
number of a victim or witness by providing for contact only through a private investigator licensed by the
Department of Consumer Affairs and appointed by the court or by imposing other reasonable restrictions, absent a
showing of good cause as determined by the court.
2. Revocation of right of self-representation
**A defendant acting as his own attorney has no greater privileges than any member of the bar; he may not disrupt
proceedings or intimidate witnesses, and the trial court can stop harassment and abuse of a witness by a threatening
defendant and can terminate self-representation by a defendant who engages in serious misconduct. People v. Carson
(2005) 23 Cal.Rptr.3d 482, 35 Cal.4th 1, 104 P.3d 837, appeal after new trial 2007 WL 2660223, unpublished,
review denied , habeas corpus denied 2013 WL 169845. Criminal Law
1754; Criminal Law
1755
Lexis
1. Generally
**In a criminal trial where defendant proceeded in propria persona, Pen
C 1054.2 permitted defendant's investigator to receive discovery
materials, including a "rap sheet" for one of the prosecution witnesses.
Investigator arguably erred by leaving defendant with the information.
People v. Carson (2003, Cal App 2d Dist) 109 Cal App 4th 978, 135 Cal Rptr
2d 727, 2003 Cal App LEXIS 858, rev'd on other grounds, (2005) 35 Cal 4th
1, 23 Cal Rptr 3d 482, 104 P3d 837, 2005 Cal LEXIS 1019.
Alvarado v. Superior Court, 23 Cal.4th 1121, 5 P.3d 203, 99 Cal.Rptr.2d 149, 00 Cal. Daily Op. Serv. 6897,
2000 Daily Journal D.A.R. 9153 (Cal., Aug 17, 2000)
Inmates charged with jail-house murder of third inmate petitioned for writ of mandate after the Superior Court,
Los Angeles County, No. BA 099774, Robert J. Perry, J., denied requests for discovery of photographs and identities
of three witnesses who cooperated with prosecution. The Court of Appeal denied the petition and remanded. The
Supreme Court granted review, superseding the opinion of the Court of Appeal. The Supreme Court, George, C.J.,
held that: (1) federal Constitution's Confrontation Clause did not require immediate pretrial disclosure of names and
photographs of inmate witnesses, but (2) the Confrontation Clause would prevent the witnesses from testifying
anonymously at trial, if their testimony was crucial to the prosecution's case.
Reversed and remanded with instructions.
Opinion, 60 Cal.Rptr.2d 854, vacated.
West Headnotes
[1] Constitutional Law 92
4594(4)
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)4 Proceedings and Trial
92k4592 Disclosure and Discovery
92k4594 Evidence
92k4594(2) Particular Items or Information, Disclosure of
92k4594(4) k. Witnesses. Most Cited Cases
(Formerly 92k268(5))
Criminal Law 110
629(2)
110 Criminal Law

110XX Trial
110XX(A) Preliminary Proceedings
110k629 List of Witnesses and Disclosure of Other Matters
110k629(2) k. Statutes and rules. Most Cited Cases
Criminal Law 110
662.4
110 Criminal Law

110XX Trial
110XX(C) Reception of Evidence
110k662 Right of Accused to Confront Witnesses
110k662.4 k. Failure to produce or disclose witnesses or evidence. Most Cited Cases
Statute giving trial courts discretion to deny, restrict, or defer pretrial disclosure of witnesses' identities, if good
cause is shown, does not violate the confrontation clause or the due process clause. U.S.C.A. Const.Amends. 6, 14;
West's Ann.Cal.Penal Code 1054.7.
[2] Criminal Law 110
629(1)
110 Criminal Law

110XX Trial
110k629(1) k. In general. Most Cited Cases
A trial court retains considerable discretion to protect a witness's identity before trial. West's Ann.Cal.Penal
Code 1054 et seq.
629(5)
110 Criminal Law

110XX Trial
110k629(3) List or Disclosure of Prosecution Witnesses
110k629(5) k. Identification of witnesses; names and addresses. Most Cited Cases
Trial court was justified in authorizing the prosecution to refrain from giving immediate pretrial disclosure of
the identities of inmates who allegedly witnessed the jailhouse murder for which one defendant inmate was charged
with capital murder and another defendant inmate was charged with non-capital murder, where it was likely that a
prison gang had been involved in the murder, and the witnesses, as inmates, were particularly vulnerable to threats,
coercion, or violent acts of other inmates. West's Ann.Cal.Penal Code 1054.7.
629(5)
110 Criminal Law

110XX Trial
110k629(3) List or Disclosure of Prosecution Witnesses
110k629(5) k. Identification of witnesses; names and addresses. Most Cited Cases
Particularly in a capital case, where pretrial preparation and investigation often extend over a considerable
period of time, early disclosure of the identity of a vulnerable and threatened witness greatly may increase the
danger of the elimination of an adverse witness or the influencing of his testimony. West's Ann.Cal.Penal Code
1054.7.
110 Criminal Law
662.1
110XX Trial
110k662.1 k. In general. Most Cited Cases
Criminal Law 110
662.7
110 Criminal Law

110XX Trial
110k662.7 k. Cross-examination and impeachment. Most Cited Cases
The right of confrontation means more than being allowed to confront the witness physically; indeed, the main
and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. U.S.C.A.
Const.Amend. 6.
4679
92XXVII Due Process
92XXVII(H)5 Evidence and Witnesses
92k4679 k. Cross-examination. Most Cited Cases
**To deprive an accused of the right to cross-examine the witnesses against him is a denial of the guarantee of
due process of law. U.S.C.A. Const.Amend. 14.
662.1
110 Criminal Law

110XX Trial
**The right of an accused to be confronted with the witnesses against him must be determined by the same
standards whether the right is denied in a federal or state proceeding. U.S.C.A. Const.Amend. 6.
110 Criminal Law
110XX Trial
662.1

The right of confrontation is not absolute, and may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process. U.S.C.A. Const.Amend. 6.
662.4
110 Criminal Law

110XX Trial
**Confrontation clause would prohibit permanently withholding from defense, during and after witnesses'
testimony in murder prosecution, identities of inmates who allegedly witnessed the jailhouse murder committed by
defendant inmates, even if the safety of the witnesses was threatened, if the witnesses had been in close proximity to
the murder, so that their testimony, veracity, and credibility were crucial to the prosecution's case. U.S.C.A.
Const.Amend. 6; West's Ann.Cal.Penal Code 1054 et seq.
662.4
110 Criminal Law

110XX Trial
Pretrial disclosure of cell number occupied by each of the inmate witnesses to jailhouse murder, and pretrial
disclosure of their criminal histories, did not avoid the confrontation clause violation that would occur if witnesses'
names and photographs were not disclosed at or before trial; defendant inmates were unlikely to be able to conduct
adequate investigation of witnesses or of veracity of their testimony, or to challenge accuracy of information
concerning the witnesses provided by the prosecution, including their prior criminal records or benefits that may
have been provided to them in return for their testimony. U.S.C.A. Const.Amend. 6; West's Ann.Cal.Penal Code
1054 et seq.
662.80
110 Criminal Law

110XX Trial
110k662.80 k. Waiver of right. Most Cited Cases
Allegations that inmate defendant had threatened other inmates who had witnessed jailhouse murder did not
waive defendant's confrontation clause right to disclosure of witnesses' identities at murder trial; defendant had been
excluded from the in-camera hearing at which trial court heard testimony that threats had been made by prison gang,
and no full trial court hearing had been held on the waiver issue because the prosecution had not raised the issue in
the trial court. U.S.C.A. Const.Amend. 6; West's Ann.Cal.Penal Code 1054 et seq.
662.4
110 Criminal Law

110XX Trial
**When nondisclosure of the identity of a crucial witness will preclude effective investigation and crossexamination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of
that witness at trial while refusing to disclose his or her identity. U.S.C.A. Const.Amend. 6; West's Ann.Cal.Penal
Code 1054 et seq.
GEORGE, C.J.
In this case we must determine the validity of an order, entered prior to trial in a criminal action, that authorizes
the prosecution to refuse to disclose to the defendants or their counsel, both prior to and at trial, the identities of the
crucial witnesses ***152 whom the prosecution proposes to call at trial, on the ground that disclosure of the
identities of the witnesses is likely to pose a significant danger to their safety.
Protecting the safety of witnesses unquestionably is of the utmost importance, and a trial court has broad
discretion to deny, restrict, or defer disclosure of a witness's identity prior to trial in order to provide such protection
(Pen.Code, 1054.7). As we shall explain, however, we conclude in light of controlling constitutional authorities
that the trial court and the Court of Appeal erred in determining that, when the risk to a witness is sufficiently grave,
the identity of the witness may be permanently withheld from a defendant and the witness may testify anonymously
at trial even when the witness is a crucial prosecution witness and withholding the witness's identity will impair
significantly the defendant's ability to investigate and cross-examine the witness.
As discussed hereafter, numerous decisions of both the United States Supreme Court and the California courts
establish that whenever nondisclosure of a witness's identity will prevent the effective investigation and crossexamination of a crucial witness, the confrontation clause precludes the prosecution from relying upon the witness's
testimony at trial while refusing to disclose the witness's identity. As the United States Supreme Court has
explained: [W]hen the **206 credibility of a witness is in issue, the very *1126 starting point in exposing
falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and
where he lives. The witness'[s] name and address open countless avenues of in-court examination and out-of-court
investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of crossexamination itself. (Smith v. Illinois (1968) 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956, italics added, fn.
omitted.)
Accordingly, we conclude that the challenged order must be vacated insofar as it authorizes, in advance of trial
and without regard to the evidence and circumstances as they then may appear, the prosecution permanently to
withhold the identity of these prosecution witnesses from the defense. At the same time, however, we emphasize that
the trial court remains free to fashion a more limited order denying, restricting, or deferring disclosure of the identity
of each witness before trial (including limiting disclosure to defendants' counsel), as long as that order does not
impermissibly impair defendants' right to confront and cross-examine the witnesses effectively at trial.
I.
On February 6, 1993, during the noon hour, Jose Uribe, an inmate at the Los Angeles County jail, was killed in
his cell, having been stabbed 37 times with a contraband knife described as a shank . Three other inmates allegedly
witnessed the incident.
Following an investigation by law enforcement officials, a complaint was filed charging defendants Joaquin
Alvarado and Jorge Lopez with the first degree murder of Uribe. A third defendant, Frank Marquez, also was
charged but is not a party to this proceeding. The prosecution provided discovery to the defense indicating that three
inmates witnessed the killing. A magistrate ordered the prosecution to provide the defense with the identities of the
witnesses prior to the commencement of the preliminary hearing, pursuant to Penal Code sections 1054.1,
subdivision (a), and 1054.5.FN1
FN1. Unless otherwise specified, all further statutory references are to the Penal Code.
Instead of complying with the magistrate's order, the prosecution presented its case to a grand jury, which
returned an indictment charging defendant Alvarado with murder (and alleging a prior-murder special circumstance)
and conspiracy to commit murder, and charging defendant Lopez with murder, conspiracy to commit murder, and
possession of a shank while in custody (on three occasions unrelated to the present incident). ( 187, 190.2, subd.
***153 (a)(2), 182, subd. (a)(1), 4574, subd. (a).) The prosecution is seeking the death penalty against Alvarado but
not against Lopez.
*1127 The prosecution provided defendants with transcripts of the grand jury proceedings, in which the three
inmate eyewitnesses are identified only as witnesses 1, 2, and 3. We summarize the testimony of the three witnesses
before the grand jury.
Witness 1 testified that on the day of the murder, he was housed in cell No. 12. Witness 1 heard Marquez, a jail
trusty, ask one of witness 1's two cellmates in Spanish for some extra jail clothing, mentioning something about a
snitch. Witness 1 gave Marquez his shirt, hoping to curry favor with Hispanic inmates. Witness 1 remained in his
cell during the noon hour because he was tired. He saw a group of five inmates, including defendants, near his cell.
He then heard an altercation and observed the same group of five inmates leave the area.
Two days after the murder, during the course of the sheriff's department's investigation, witness 1 identified a
photograph of Marquez as depicting the person to whom he gave his shirt, but six months later he selected another
photograph identifying a different individual. Witness 1 told the grand jury that he had been confused regarding his
earlier photographic identification. Witness 1 further testified that defendants were in the group of inmates he saw
near his cell and that on the day immediately preceding his testimony before the grand jury, he was placed in the
same jail cell as defendant **207 Alvarado, who threatened to harm him if he testified.
Witness 2 testified that, on the morning of Uribe's death, Marquez came to cell No. 11, where witness 2 was
housed. Marquez spoke to witness 2's cellmates in Spanish. Witness 2 believed that Marquez said a snitch was going
to be dealt with in cell No. 10, and said witness 2 should stay away from cell No. 10. Approximately 10 minutes
later, witness 2 heard a Black trusty inform certain Black inmates to stay away from the end of the row where cell
No. 10 was located. Witness 2 remained in his cell around noon instead of going to lunch, because he wanted to eat
the food he had purchased that morning at the commissary.
Around noon, witness 2 saw defendants Alvarado and Lopez, who were not assigned to cell No. 10, enter that
cell with another inmate who was housed there. Witness 2 then heard an altercation inside cell No. 10 and something
being said about being a snitch. Shortly thereafter, witness 2 saw Lopez give a bloody shirt to Marquez outside cell
No. 10. Witness 2 also saw a bloody body lying under a bed inside cell No. 10. Marquez told witness 2 to return to
his cell because the matter did not involve him.
As part of the investigation into Uribe's murder, witness 2 was shown photographs of inmates who had been in
the area. Witness 2 identified *1128 Marquez, Lopez, and Alvarado. (Witness 2 initially identified a different
individual as having accompanied Lopez into cell No. 10. When thereafter shown Alvarado's photograph, witness 2
stated that his earlier identification had been mistaken.)
Witness 3 was a jail trusty assigned to sweep the module that contained cell Nos. 10, 11, and 12. On the
morning of the murder, he saw Marquez wrap a shank inside a shirt and give it to another Hispanic inmate. After
lunch, witness 3 saw Marquez take a shirt from someone on the same row.
The prosecution provided the defense with the grand jury transcripts and information regarding the witnesses'
criminal histories, but did not provide the names or photographs of witnesses 1, 2, or 3. FN2 The defense continued to
seek the witnesses' true names and addresses. The ***154 prosecution then sought a protective order, authorizing it
permanently to withhold disclosure of the witnesses' identities and photographs from defendants or their counsel on
the ground that disclosure would place the witnesses' lives in danger.
FN2. The prosecution also provided the defense with information describing the witnesses' custodial status
and with the police reports of their prior crimes. Copies of reports of interviews of other inmates were made
available to the defense. Additionally, the prosecution provided the names and photographs of 33 other
inmates who, on the date of the murder, resided in the county jail module where the killing occurred.
Defendants also were provided with the names of every other inmate who resided in a nearby county jail
module.
Over defendants' objections, the trial court held a series of in camera hearings, from which the defense was
excluded, to permit the prosecution to demonstrate good cause why disclosure of the witnesses' names and
photographs should be denied. ( 1054.7.) Based upon the evidence adduced at these hearings, the trial court found
as follows:
The evidence presented clearly established that witnesses 1 through 3 are in serious danger as a result of their
participation in this case and that the disclosure of their names would likely increase the danger to them . Several
facts support this conclusion, including the following:
(1) The homicide is believed to have been ordered by the Mexican Mafia, a notorious prison gang, and that the
defendants, who are not members of the gang, committed the homicide to gain favor with the Mexican Mafia.
(2) The Mexican Mafia is well-known for retaliatory acts against ... informants and government witnesses,
including murder. [] Information disclosed in camera documented 12 incidents of murder or attempted murder at
the county jail of inmates between 1988 through 1991 which were committed by or at the direction of the Mexican
Mafia. The additional five murders linked to the Mexican Mafia during this period of time were committed on
persons who were not incarcerated. [] The Mexican Mafia is believed to have ordered the murders of witnesses in
protective custody and incarcerated in other states....
*1129 (3) The Mexican Mafia has an excellent intelligence network which includes sources in several public
agencies and is able to obtain confidential information. [] ... [] Penetration [by] the Mexican Mafia of penal
institutions is so extensive that one in camera witness described the organization as having **208 de facto control
over all penal institutions in California.
(4) ... [T]he danger the Mexican Mafia poses to government witnesses is extreme. In camera, a witness stated
that the Mexican Mafia has ordered so many hits and there are so many witnesses in protective custody that we
cannot adequately protect them all.
(5) The Mexican Mafia requires documentation which identifies an individual as a government witness before
a contract to kill the witness is approved. The procedure for issuing contracts was described as follows: [] For
contracts to be issued, one Mexican Mafia member alone cannot give the contract. He has to have that contract
approved. [] The contract is approved in a manner where they meet, two or three members meet. They are
presented with evidence. They have ... what you would call a trial. It is informal. This evidence includes transcripts
or paperwork ... that would indict this person who has been a witness and that is why the name is so important.
(6) A witness in the instant case was attacked and cut in jail after the killing in this case. The attacker was a
member of the prison gang aligned with the Mexican Mafia and warned the witness not to testify. [] One of the
defendants in this case threatened a witness while the witness was in protective custody and told the witness
somebody would get him. [] Someone wrote on a wall while a witness was in a court holding cell that the witness
was dead. And that the witness was a snitch at the time when the witness was in protective custody.
(7) In the instant case, the homicide was committed in a manner which suggests highly organized criminal
activity involving several persons. [] The victim arrived at the institution a single day or at most two days before
the killing. This fact suggests that the group responsible for his killing had intelligence and organization.***155 It
was known that the [victim] was coming, where he would be and how to get to him. [] This sophisticated criminal
activity involving the obtaining of shanks which, of course, [are] illegal to possess in the jail, getting the shanks to
the floor [where] they could be used, obtaining the extra clothing so the killer could rid themselves [ sic ] of the
blood-stained clothes, getting rid of the blood-stained clothes. [] The sophistication of the killing indicates no one is
safe inside the county jail system and I think that also obtains to persons who are in prison within California and in
prisons outside of California.
*1130 Based on the foregoing and the other facts disclosed to the court in camera, it is clear that the witnesses
1 through 3 are in danger and that disclosure of their names would increase the risk of possible danger to them with
a resulting possible los[s] of evidence; that is, their testimony, which has not been preserved in any usable way . []
So I find good cause has been shown to support that there is a danger to these witnesses.
But I must say I continue to be troubled by the People's request to not turn over the names. It is a difficult issue
for me. And even though I think good cause exists, I certainly am persuaded by [counsel for defendant Alvarado]
Mr. Crain's argument and the arguments of counsel that for them to investigate the case in this situation, it makes it
almost impossible to investigate without the names....
Based upon the foregoing findings, the trial court concluded that good cause for nondisclosure of the witnesses'
true names had been established. The court therefore issued the following minute order: [The] People's request to
withhold the names of witnesses from the defense is granted. The witnesses will be made available for interview by
defense counsel 30 (thirty) days before trial. The witnesses are not required to state their names, but, may do so at
their own volition.
Defendants thereafter sought writ review of the trial court's order. The Court of Appeal denied defendants'
petitions for writ of mandate. Defendants thereafter sought review from this court. We granted review and
transferred the matters to the Court of Appeal, with directions to that court to vacate its order denying mandate and
to issue an alternative writ to be heard before that court. The Court of Appeal, upon discovering a discrepancy
between the trial court's minute order and the reporter's transcript, remanded the case to the trial court, which **209
issued a new minute order clarifying its ruling and providing as follows: (1) the prosecution is authorized
permanently to withhold from the defense the identities of the three witnesses; (2) the prosecution is to produce the
witnesses for interview by defense counsel 30 days prior to trial, although the witnesses are not required to speak to
defense counsel, and if they do, they may but are not required to disclose their names; (3) if defense counsel learn
the witnesses' names, they may not disclose the names to defendants; and (4) at trial, the witnesses may but are not
required to disclose their names, but their appearance will not be disguised.
Both defendants thereafter sought further writ review from the Court of Appeal, which consolidated the two
petitions, issued an order to show cause, and ultimately resolved the matter in a written opinion rendered by a
divided court.
*1131 In its opinion, the majority of the Court of Appeal determined that the trial court properly had exercised
its discretion in authorizing the prosecution permanently to withhold the witnesses' identities from the defense,
based upon the trial court's finding that disclosure of the witnesses' names would place them in mortal danger.... In
so holding, the majority acknowledged that under the trial court's order [d]efendants will have difficulty obtaining
complete information about the witnesses' location and ability to observe and testify about the crime. Moreover,
defendants will be unable to obtain complete ***156 impeaching information, such as the witnesses' reputation for
truthfulness or dishonesty, previous history and accuracy of providing information to law enforcement, and other
motives to fabricate, such as revenge or reduction or dismissal of their own charges . In sum, the majority conceded
that the trial court's nondisclosure order would seriously limit defendants' effective investigation and crossexamination of the witnesses, significantly impair[ing] defendants' constitutional rights to confrontation and to
due process of law. Nonetheless, the majority concluded that in light of the potentially grave danger to the witnesses,
the impairment of defendants' ability to cross-examine and impeach the witnesses was not unconstitutional. In
reaching this conclusion, the Court of Appeal majority expressly disagreed with the conclusion reached in People v.
Brandow (1970) 12 Cal.App.3d 749, 90 Cal.Rptr. 891 (Brandon), in which the appellate court held that disclosure of
the identity of a witness constitutes an essential element in the protection of the defendant's right to a fair trial. (12
Cal.App.3d at p. 755, 90 Cal.Rptr. 891.) FN3
FN3. In discussing the danger posed to the prosecution witnesses, the Court of Appeal majority emphasized
the threats by the Mexican Mafia found by the trial court, observing: One of the witnesses was attacked
and warned against testifying by an inmate aligned with the Mexican Mafia. [Defendant] Alvarado
threatened a witness while he was in protective custody. While one of the witnesses was in court, someone
wrote on his cell wall that he was dead. In addition to noting that the trial court found that defendant
Alvarado had threatened one of the witnesses, the Court of Appeal also observed that both of the other
witnesses received specific threats designed to dissuade them from testifying. The majority concluded that
disclosure of the witnesses' names to the defense would further endanger the witnesses, because the
Mexican Mafia then could determine who they are.
And the court stated at p. ,

Smith v. State of Illinois, 390 U.S. 129, 130,
88 S.Ct. 748, 19
L.Ed.2d 956 (U.S.Ill. Jan 29, 1968)

Defendant was convicted in the Circuit Court, Cook County, Illinois, of unlawful sale of narcotic drugs and he
appealed. The Appellate Court of Illinois, First District, First Division, 70 Ill.App.2d 289, 217 N.E.2d 546, affirmed.
Certiorari was granted. The Supreme Court, Mr. Justice Stewart held that defendant had right guaranteed to him
under Sixth and Fourteenth Amendments of Constitution to cross-examine informer who was principal prosecution
witness as to informer's actual name and address.
Reversed.
Mr. Justice Harlan dissented.
West Headnotes
3856
92XXVII Due Process
92XXVII(A) In General
92k3848 Relationship to Other Constitutional Provisions; Incorporation
92k3856 k. Sixth Amendment. Most Cited Cases
**The Sixth Amendment right of accused to confront witness against him is fundamental right made obligatory
on states by Fourteenth Amendment. U.S.C.A.Const. Amends. 6, 14.
Defendant was convicted in the Circuit Court, Cook County, Illinois, of unlawful sale of narcotic drugs and he
appealed. The Appellate Court of Illinois, First District, First Division, 70 Ill.App.2d 289, 217 N.E.2d 546, affirmed.
Certiorari was granted. The Supreme Court, Mr. Justice Stewart held that defendant had right guaranteed to him
under Sixth and Fourteenth Amendments of Constitution to cross-examine informer who was principal prosecution
witness as to informer's actual name and address.
Reversed.
Mr. Justice Harlan dissented.
West Headnotes
3856
92XXVII Due Process
92XXVII(A) In General
92k3848 Relationship to Other Constitutional Provisions; Incorporation
92k3856 k. Sixth Amendment. Most Cited Cases
**The Sixth Amendment right of accused to confront witness against him is fundamental right made obligatory
on states by Fourteenth Amendment. U.S.C.A.Const. Amends. 6, 14.
662.7
110 Criminal Law

110XX Trial
110k662.7 k. Cross-examination and impeachment. Most Cited Cases
**The right of cross-examination is included in right of accused in criminal case to confront witnesses against
him.
[4] Witnesses 410
266
410 Witnesses
410III Examination
410III(B) Cross-Examination
410k266 k. Right to cross-examine and re-examine in general. Most Cited Cases
**A denial of cross-examination without waiver is constitutional error and no amount of showing of want of
prejudice will cure it.
4679
92XXVII Due Process
92k4679 k. Cross-examination. Most Cited Cases
Witnesses 410
268(17)
410 Witnesses
410III Examination
410k268 Scope and Extent of Cross-Examination in General
410k268(17) k. Witness's identity, address, etc.; matters endangering witness. Most Cited Cases
**A defendant in state narcotics case had right guaranteed to him under Sixth and Fourteenth Amendments of
constitution to cross-examine informer who was principal prosecution witness as to informer's actual name and
address. U.S.C.A.Const. Amends. 6, 14.
[10] Witnesses 410
330(1)
410 Witnesses
410IV Credibility and Impeachment
410IV(A) In General
410k330 Cross-Examination to Discredit Witness or Disparage Testimony in General
**No obligation is imposed on trial court to protect witness from being discredited on cross-examination, short
of an attempted invasion of his constitutional protection from self-incrimination, properly invoked.
[11] Witnesses 410
267
410 Witnesses
410III Examination
410k267 k. Control and discretion of court. Most Cited Cases
**There is a duty to protect witness from questions which go beyond the bounds of proper cross-examination
merely to harass, annoy or humiliate him.
On cross-examination this witness was asked whether James Jordan was his real name. He admitted, over the
prosecutor's objection, that it was not. He was then asked what his correct name was, and the court sustained the
prosecutor's objection to the question.FN5 Later the *131 witness was asked where he lived, and again the court
sustained the prosecutor's objection to the question.FN6
FN5. MR. PRIDE: Is James Jordan your correct name?
MR. MARTWICK: Object.
MR. PRIDE: I have a right to know if it is his correct name.

THE COURT: He may answer if it is his correct name or not.
MR. PRIDE: Is that your correct name?
A. No, it is not.
Q. What is your correct name?
MR. MARTWICK: Object.
THE COURT: I won't have him answer that.
FN6. Q. Now, where do you live now?
MR. MARTWICK: Objection.
MR. PRIDE: This is material.
MR. MARTWICK: Objection, Judge.
THE COURT: Yes, objection allowed.
The record shows that in fact the petitioner and his lawyer knew Jordan and that the lawyer had once
represented him. However, there is no evidence in the record that either the petitioner or his lawyer knew
Jordan's' correct name or where he was living at the time of this trial.
[3][4] As the Court said in Pointer, It cannot seriously be doubted at this late date that the right of crossexamination is included in the right of an accused in a criminal case to confront the witnesses against him. 380
U.S., at 404, 85 S.Ct., at 1068. Even more recently we **750 have repeated that (a) denial of cross-examination
without waiver * * * would be constitutional error of the first magnitude and no amount of showing of want of
prejudice would cure it. Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.
[5] In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the
petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although
the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the
very starting point in exposing falsehood and bringing out the truth'FN7 through cross-examination must necessarily
be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of incourt examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is
effectively to emasculate the right of cross-examination itself.
FN7. See Pointer v. State of Texas, 380 U.S., at 404, 85 S.Ct., at 1068.
*132 [6][7][8][9][10][11] In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, this Court
almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to
questions by the defense seeking to elicit the place of residence of a prosecution witness over the insistence of
defense counsel that the jury was entitled to know who the witness is, where he lives and what his business is .
282 U.S., at 688689, 51 S.Ct., at 218. What the Court said in reversing that conviction is fully applicable here:
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to
state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the
opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test,
without which the jury cannot fairly appraise them. * * * To say that prejudice can be established only by showing
that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in
chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. * * *
* * * The question, Where do you live? was not only an appropriate preliminary to the cross-examination of
the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential
step in identifying the witness with his environment, to which cross-examination may always be directed. * * *
The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion
of the trial court. It may exercise reasonable judgment in determining when the subject is exhausted. * * * But no
obligation is imposed *133 on the court, such as that suggested below, to protect a witness from being discredited on
cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly
invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination
merely to harass, annoy or humiliate him. * * * But no such case is presented here. * * * 282 U.S., at 692694, 51
S.Ct., at 219220.
[12] In Pointer v. State of Texas, supra, the Court made clear that the right of an accused to be confronted with
the witnesses against him must be determined by the same standards whether the right is denied in a federal or state
**751 proceeding * * *. 380 U.S., at 407408, 85 S.Ct., at 1070. In this state case we follow the standard of
Alford and hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth
Amendments of the Constitution.FN8
FN8. It is to be noted that no claim of the privilege against compulsory self-incrimination was asserted by
James Jordan. Cf. United States v. Cardillo, 316 F.2d 606, 87 S.Ct. 1056, 18 L.Ed.2d 62. Nor are this
Court's decisions in McCray v. State of Illinois, 386 U.S. 300, and Roviaro v. United States, 353 U.S. 53,
77 S.Ct. 623, 1 L.Ed.2d 639, relevant here. In neither of those cases was the informer a witness for the
prosecution. Another recent Illinois decision seems to have recognized that the state evidentiary informer
privilege is not involved when the informer is himself a witness at the trial. People v. Smith, 69 Ill.App.2d
83, 89, 216 N.E.2d 520, 523. See 8 Wigmore, Evidence s 2374, n. 6 (McNaughton rev. 1961).
Reversed.
Secondary sources
716
Construction and Application of Sixth Amendment Confrontation Clause--Supreme Court Cases, 83
A.L.R. Fed. 2d 385 (2014) HN: 12 (S.Ct.)

717
Right to impeach witness in criminal case by inquiry or evidence as to witness' criminal activity not
having resulted in arrest or charge--modern state cases, 24 A.L.R.4th 333 (1983) HN: 3,5,7,10,11 (S.Ct.)
718
Right to impeach witness in criminal case by inquiry or evidence as to witness' criminal activity for
which witness was arrested or charged, but not convicted--modern state cases, 28 A.L.R.4th 505 (1984) HN:
2,3,5,9,10 (S.Ct.)
719
Right to cross-examine witness as to his place of residence, 85 A.L.R.3d 541 (1978) HN: 2,5,7,9,10
(S.Ct.)
**
720
Accused's right to, and prosecution's privilege against, disclosure of identity of informer, 76 A.L.R.2d
262 (1961) HN: 5 (S.Ct.)
**
1209 Comment Note.--Impeachment of witness by evidence or inquiry as to arrest, accusation, or

prosecution, 20 A.L.R.2d 1421 (1951) HN: 1,2,3,5,6 (S.Ct.)
**
1210 Preventing or limiting cross-examination of prosecution's witness as to his motive for testifying, 62
A.L.R.2d 610 (1958) HN: 6 (S.Ct.)
Alford v. U.S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (U.S.Cal. Feb
24, 1931)
J. W. Alford was convicted of using the mails to defraud, the conviction being affirmed by the Circuit Court of
Appeals ( 41 F.(2d) 157), and he brings certiorari.
Reversed.
[1] Witnesses 410
266
410 Witnesses
410III Examination
410k266 k. Right to Cross-Examine and Re-Examine in General. Most Cited Cases
**Cross-examination of witness is matter of right.
[4] Witnesses 410
268(1)
410 Witnesses
410III Examination
410k268 Scope and Extent of Cross-Examination in General
410k268(1) k. In General. Most Cited Cases
**Denial of reasonable latitude in cross-examination of witness is prejudicial error.
1170.5(5)
110 Criminal Law

110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1170.5 Witnesses
110k1170.5(5) k. Cross-Examination. Most Cited Cases
(Formerly 110k11701/2(5))
Postal Service 306
50
306 Postal Service

306III Offenses Against Postal Laws
306k50 k. Trial and Review. Most Cited Cases
**Refusal, in prosecution for using mails to defraud, to permit cross-examination of government's witness
respecting residence, held prejudicial error.
Mr. Justice STONE delivered the opinion of the Court.
Petitioner was convicted in the District Court for southern California of using the mails to defraud in violation
of section 215 of the Criminal Code (18 USCA s 338). This Court granted certiorari, 282 U. S. 826, 51 S. Ct. 77, 75
L. Ed. -, October 20, 1930, to review a judgment of affirmance by the Court of Appeals for the Ninth Circuit, which
upheld certain rulings of the trial court upon the evidence. 41 F.(2d) 157.
In the course of the trial the government called as a witness a former employee of petitioner . On direct
examination he gave damaging testimony with respect to various transactions of accused, including conversations
with the witness when others were not present, and statement of accused to salesmen under his direction, whom the
witness did not identify. Upon cross-examination questions seeking to elicit the witness's place of residence were
excluded on the government's objection that they were immaterial and not proper cross-examination. Counsel for the
defense insisted that the questions were *689 proper cross-examination, and that the jury was entitled to know who
the witness is, where he lives and what his business is. Relevant excerpts of the record are printed in the margin.FN1
FN1. Q. Where do you live, Mr. Bradley?
Mr. Armstrong: That is objected to as immaterial and not proper cross-examination.
The Court: I cannot see the materiality.
Mr. Friedman: Why, I think the jury has a perfect right to know who the witness is, where he lives and what
his business is, and we have the right to elicit that on cross-examination. I may say that this is the first
witness the Government had called that they have not elicited the address from.
The Court: I will sustain the objection.
Q. By Mr. Friedman: What is your business, Mr. Bradley? A. My profession is an accountant, public
accountant.
Q. What is your occupation now? A. I am not doing anything at the present time on account of this case.
Q. On account of this case? A. Yes.
Q. Do you live in Los Angeles?
Mr. Armistrong: That is objected to as immaterial and invading the Court's ruling.
The Court: I have ruled on that question.
Mr. Friedman: I will temporarily pass on to something else. I would like leave to submit authorities on may
right to develop that on cross-examination. I haven't them with me.
The Court: All right. * * *
The jury were thereupon excused by the court until 9:30 o'clock on the morning of July 24, 1929,
whereupon the jury retired after which the following proceedings were had relative to the materiality of the
testimony, as to the residence and place thereof of Cameron Bradley.
The Court: So ordered. In what particular do you think that evidence is material?
Mr. Friedman: I think it is material for this purpose, first, not only on the general grounds I urged in asking
the question, but on the additional grounds that I have been informed and caused to believe that this witness
himself is now in the custody of the Federal authorities.
Mr. Armstrong: You mean Mr. Bradley? You mean by the Federal authorities here?
Mr. Friedman: I don't know by what authorities, but that is my impression, that he is here in the custody of
the Federal authorities. If that is so, I have a right to show that for the purpose of showing whatever bias or
prejudice he may have.
The Court: No; I don't think so. If you can prove he has ever been convicted of a felony, that is a different
thing.
Mr. Friedman: I realize that is the rule. I may impeach him if he has been convicted of a felony.
The Court: No. You may prove that fact as going to his credibility, but you can't merely show that he is
detained or in charge of somebody. Everbody is presumed to be innocent until proven guilty.
Mr. Friedman: It is a violent presumption sometimes, I know.
The Court: Your defendant is certainly to be given the benefit of that presumption.
Mr. Friedman: I have no doubt of that.

The Court: If that is all you have, I will have to stand on the ruling. * * *
Mr. Friedman: I would like, if the Court please, our exception noted to the Court's ruling made yesterday
after the jury retired to the effect that we could not inquire as to the present address and residence of the
witness.
The Court: Very well.
**219 *690 Later, the jury having been excused, counsel for the defense urged, as an additional ground for
asking the excluded questions, that he had been informed that the witness was then in the custody of the federal
authorities, and that such fact might be brought out on cross-examination for the purpose of showing whatever bias
or prejudice he may have. But the court adhered to its previous rulings, saying that if the witness had been
convicted of a felony that fact might be proved, but not that he was detained in custody.
The Court of Appeals, after stating that it is customary to allow cross-examination of a witness with reference to
*691 his place of residence, upheld the trial court, saying, page 160 of 41 F.(2d):
The purpose of such evidence is to identify the witness and to some extent given proper background for the
interpretation of his testimony. In this case, however, the counsel indicated his purpose to use the information for the
purpose of discrediting the witness. It is part of the obligation of a trial judge to protect witnesses against evidence
tending to discredit the witness unless such evidence is reasonably called for by exigencies of the case. A witness is
not on trial and has no means of protecting himself. Here it was evident that the counsel for the appellant desired to
discredict the witness, without, so far as is shown, in any way connecting the expected answer with a matter on trial.
If it had been contended that the witness was in custody because of his participation in the transaction with which
the appellant was charged, and if it was sought to show that he was testifying under some promise of immunity, it
would undoubtedly have been prejudicial error to have excluded such testimony; but counsel avowed no such
purpose, and indicated that the proposed question was merely in pursuit of a fishing expedition by which he hoped
to discredit the witness. The witness was examined at great; length concerning his relation to the appellant and great
latitude was accorded in that examination.
[1][2] Cross-examination of a witness is a matter of right. The Ottawa, 3 Wall. 268, 271, 18 L. Ed. 165. Its
permissible purposes, among others, are that the witness may be identified with his community so that independent
testimony may be sought and offered of his reputation for veracity in his own neighborhood, cf. Khan v. Zemansky,
59 Cal.App. 324, 327ff, 210 P. 529; 3 Wigmore, Evidence (2d Ed.) s 1368 I. (1)(b); that the jury may interpret his
testimony in the light refiected upon it by knowledge of his environment, Kirschner v. State, 9 Wis. 140; *692Wilbur
v. Flood, 16 Mich. 40, 93 Am. Dec. 203; Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; People v. White, 251 Ill,
67, 72ff., 95 N. E. 2036; Wallace v. State, 41 Fla. 547, 574 ff., 26 So. 713; and **that facts may be brought out
tending to discredit the witness by showing that his testimony in chief was untrue or biased, Tla-koo-yel-lee v.
United States, 167 U. S. 274, 17 S. Ct. 855, 42 L. Ed. 166; King v. United States (C. C. A.) 112 F. 988; Farkas v.
United States (C. C. A.) 2 F.(2d) 644; see Furlong v. United States (C. C. A.) 10 F.(2d) 492, 494.
[3][4] Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For
that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does
not, in general, apply. Knapp v. Wing, 72 Vt. 334, 340, 47 A. 1075; Martin v. Elden, 32 Ohio St. 282, 289. It is the
essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the
court what fact a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to
place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which
the jury cannot fairly appraise them. Tla-koo-yel-lee v. United States, supra; King v. United States, supra; People v.
Moore, 96 App. Div. 56, 89 N. Y. S. 83, affirmed without opinion, 181 N. Y. 524, 73 N. E. 1129; cf. People v.
Becker, 210 N. Y. 274, 104 N. E. 396. To say that prejudice can be established only by showing that the crossexamination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to
deny a substantial right and withdraw one of the safeguards essential to a fair trial. Nailor v. Williams, 8 Wall. 107,
109, 19 L. Ed. 348; see **220People v. Stevenson (Cal. Sup.) 284 P. 491; cf. Brasfield v. United States, 272 U. S.
448, 47 S. Ct. 135, 71 L. Ed. 345. In this respect a summary denial of the right of cross-examination is
distinguishable from the erroneous admission of harmless testimony. Nailor v. Williams, supra.
The present case, after the witness for the prosecution had testified to uncorroborated conversations of the
defendant of a damaging character, was a proper one for *693 searching cross-examination. The question, Where
do you live? was not only an appropriate preliminary to the cross-examination of the witness, but on its face,
without any such declaration of purpose as was made by counsel here, was an essential step in identifying the
witness with his environment, to which cross-examination may always be directed. State v. Pugsley, 75 Iowa, 742,
38 N. W. 498; State v. Fong Loon, 29 Idaho, 248, 255ff., 158 P. 233. L. R. A. 1916F, 1198; Wallace v. State, supra;
Wilbur v. Flood, supra; 5 Jones, Evidence (2d Ed.) s 2366.
But counsel for the defense went further, and in the ensuing colloquy with the court urged, as an additional
reason why the question should be allowed, not a substitute reason, as the court below assumed, that he was
informed that the witness was then in court in custody of the federal authorities, and that that fact could be brought
out on cross-examination to show whatever bias or prejudice the witness might have. The purpose obviously was
not, as the trial court seemed to think, to discredit the witness by showing that he was charged with crime, but to
show by such facts as proper cross-examination might develop, that his testimony was biased because given under
promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States,
which was conducting the present prosecution. King v. United States, supra; Farkas v. United States, supra, and
cases cited; People v. Becker, supra; State v. Ritz, 65 Mont. 180, and cases cited on page 188, 211 P. 298; Rex v.
Watson, 32 How. St. Tr. 284. Nor is it material, as the Court of Appeals said, whether the witness was in custody
because of his participation in the transactions for which petitioner was indicted. Even if the witness were charged
with some other offense by the prosecuting authorities, petitioner was entitled to show by cross examination that his
testimony was affected by fear or favor growing out of his detention. See Farkas v. United States, supra; People v.
Dillwood, 4 Cal. Unrep. 973, 39 P. 438.
[5][6] *694 The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound
discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted.
Storm v. United States, 94 U. S. 76, 85, 24 L. Ed. 42; Rea v. Missouri, 17 Wall. 532, 542-543, 21 L. Ed. 707; Blitz v.
United States, 153 U. S. 308, 312, 14 S. Ct. 924, 38 L. Ed. 725. But no obligation is imposed on the court, such as
that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted
invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him
from questions which go beyond the bonds of proper cross-examination merely to harass, annoy or humiliate him.
President, etc., of Third Great Western Turnpike Road Co. v. Loomis, 32 N. Y. 127, 132, 88 Am. Dec. 311; Wallace
v. State, supra; 5 Jones, Evidence (2d Ed.) s 2316. But no such case is presented here. The trial court cut off in
limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross examination. This
was an abuse of discretion and prejudicial error. Tla-koo-yel-lee v. United States, supra; Nailor v. Williams, supra;
King v. United States, supra; People v. Moore, supra; cf. People v. Becker, supra. Other grounds for reversal were
set up in the petition for certiorari, but we do not find it necessary to pass upon them.
Reversed.
Izazaga v. Superior Court, 54 Cal.3d 356, 376, 815 P.2d 304, 285 Cal.Rptr. 231 (Cal., Aug 30, 1991)
FN11. The Ohio Supreme Court defined the requirement that the prosecution disclose the witnesses it
intends to call at trial as including all witnesses it reasonably anticipates it is likely to call.... (State v.
Howard, supra, 383 N.E.2d 912, 915.) **We adopt this definition for purposes of interpreting the
requirements of the new discovery chapter.
76 alr 2d 262 accued right to prosecutors priv against discl of identity

of informer
6. Pretrial proceedings
[Cumulative Supplement]
**Where otherwise proper, disclosure of the identity of an informer may be required in advance of the trial.
Roviaro v United States (1957) 353 US 53, 1 L ed 2d 639, 77 S Ct 623 , infra; Priestly v Superior Court of San
Francisco (1958) 50 Cal 2d 812, 330 P2d 39, infra; Mitchell v Superior Court of San Francisco (1958) 50 Cal 2d
827, 330 P2d 48, infra.[11]
436
Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction, 34
A.L.R.3d 16 (1970) HN: 2 (S.Ct.)

458
459
(S.Ct.)
Prosecutorial Misconduct s 5:20, False testimony-Applicable principles (2014) HN: 2 (S.Ct.)

Prosecutorial Misconduct s 5:21, False testimony-What constitutes false testimony? (2014) HN: 2
456
Police Misconduct: Law and Litigation s 12:26, Obtaining false statements (2014) HN: 2 (S.Ct.)
471
Am. Jur. 2d Criminal Law s 1181, Suppression of evidence, generally (2014) HN: 2 (S.Ct.)
351
Am. Jur. 2d Criminal Law s 1200, Generally; requirement that testimony be actually perjured (2014)
HN: 1 (S.Ct.)
Alcorta v. State of Tex., 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (U.S.Tex., Nov 12, 1957)
Prosecution for murder. The Criminal District Court No. 2, Bexar County, Texas, entered judgment of
conviction and defendant appealed. The Court of Criminal Appeals, 294 S.W.2d 112, affirmed, and later affirmed
action of trial court in refusing to issue a writ of habeas corpus on ground of perjured testimony of a witness for the
state, and defendant was granted certiorari. The Supreme Court held that where defendant relied on Texas statute
treating killing under influence of sudden passion arising from adequate cause, as murder without malice, and a
witness for the state gave testimony inconsistent with defendant's claim that he had come upon his wife kissing such
witness in a parked automobile, and **after trial, witness admitted that he had had sexual intercourse with
defendant's wife on many occasions, and prosecutor admitted he had knowledge of such intercourse but told witness
not to volunteer any information about it, unless asked, defendant under such circumstances, was not accorded due
process of law.
Reversed and remanded for further proceedings not inconsistent with opinion.
West Headnotes
Constitutional Law 92
4673
92XXVII Due Process
92k4672 Witnesses in General
92k4673 k. In general. Most Cited Cases
(Formerly 92k266(1), 92k266)
In prosecution for murder, where defendant relied on Texas statutes treating killing under influence of sudden
passion arising from adequate cause, as murder without malice, and a witness for the state gave testimony
inconsistent with defendant's claim that he had come upon his wife kissing such witness in a parked automobile, and
after trial, witness admitted that he had had sexual intercourse with defendant's wife on many occasions, and
prosecutor admitted he had knowledge of such intercourse, but told witness not to volunteer any information about it
unless asked, defendant, under such circumstances, was not accorded due process of law. Vernon's Ann.P.C.Tex. arts.
1256-1257c.
**
5. Withholding or suppression of evidence by prosecution in criminal case as vitiating
conviction
American Law Reports ALR3d The ALR databases are made current by the weekly addition of relevant new
cases. 34 A.L.R.3d 16 (Originally published in 1970) Felix V. Lapine, LL.B.
This annotation collects and discusses the cases concerned with the question whether and under what
circumstances the prosecutions withholding or suppression of evidence in its possession or control is a
sufficient ground for overturning the conviction of the defendant on appeal or in a collateral proceeding,
such as for habeas corpus. The...
...Test for materiality in specific request case is harmless error standard; stricter test, requiring that requested
evidence be of kind that creates a reasonable doubt that would not otherwise exist, is applicable to general request
situation....
...While a specific request for disclosure of evidence in states possession might necessitate court to order in
camera inspection and to make appropriate findings of fact, such a specific request was not made at trial and no
violations of constitutional rights were apparent....
...When considering prosecutors obligation to provide defense counsel with exculpatory information, distinction would
be made between cases in which specific defense request for evidence is made, and cases in which only general
request is made....
...Thus, noted the court, there was both a general pretrial request for favorable evidence in the hands of the
government and a specific request for the identity of this witness when his existence became known....
**When considering prosecutors obligation to provide defense counsel with exculpatory information, distinction
would be made between cases in which specific defense request for evidence is made, and cases in which only
general request is made. Test for materiality in specific request case is harmless error standard; stricter test,
requiring that requested evidence be of kind that creates a reasonable doubt that would not otherwise exist, is
applicable to general request situation. United States v Goldberg (1978, CA9 Ariz) 582 F2d 483, cert den 440 US
973, 59 L Ed 2d 790, 99 S Ct 1538.
That defense counsel did not specifically request information suppressed by prosecutor, that diligent defense
attorney might have discovered information on his own with sufficient research, or that prosecutor did not suppress
information in bad faith, were not conclusive, and suppression vitiated robbery conviction. U. S. v Hibler (CA9 Cal)
463 F2d 455.
**In prosecution for felony murder, robbery and grand larceny, court properly granted defendants habeas corpus
petition where prosecution refused to disclose police rap sheet of prosecution witness which was specifically
requested by defendant and which may have affected jurys judgment of credibility of significant witness. Perkins v
Le Fevre (1982, CA2 NY) 691 F2d 616
**Defendant convicted of homicide was granted new trial where specific pretrial request for copy of deceaseds rap
sheet was material to defendants guilt under facts and circumstances, and where rap sheet was in possession of
medical examiner who testified for prosecution at trial, but never furnished to defense. Martinez v Wainwright
(1980, CA5 Fla) 621 F2d 184.
**The court in Lee v United States (1968, CA9 Cal) 388 F2d 737, held that the District Court erred in denying a
motion for a new trial based on the prosecutions failure to reveal, upon request, that at about the time that a bank
was robbed an eyewitness had observed a person vaulting a high fence behind the bank. The defendant was
convicted of the robbery. On motion for a new trial the defendant recited that prior to trial the trial judge had ordered
prosecuting counsel to disclose to the defendant at the close of the prosecutions case the identity of any witness
favorable to his case and to produce such person at his request. The defendant showed by affidavit of his counsel
that following submission of the case to the jury the prosecuting counsel had advised the defense counsel of the
witness who had observed the person vaulting the high fence behind the bank. **The affidavit stated further that
despite a request, the prosecuting attorney declined to further identify the witness. Thus, noted the court, there was
both a general pretrial request for favorable evidence in the hands of the government and **a specific request for the
identity of this witness when his existence became known. Consequently, ruled the court, it was unnecessary to
consider what the duty of the prosecutor might have been in the absence of such a request. In opposition to the
defendants motion, the prosecution, not disputing the defendants allegations, argued only that the evidence was
not favorable to the defendant and that for this reason it was under no duty to reveal the identity of the witness. In
sole support of this position, the prosecution stated that the observer was a 10yearold boy (now eleven) who
stated that he was not positive whether the man ran down the alley, up the alley, or jumped over the fence. The court
stated that in a typical case of nondisclosure the nature of the suppressed evidence is known to the defendant and is
presented by him upon his motion. In the instant case, noted the court, the prosecution was arguing that such a
showing is necessary if the defendants burden of establishing lack of due process is to be met and that such a
showing was not made here. Rejecting the prosecutions argument, the court said that to require a showing in every
case of just what it was that the government learned from a witness casts too heavy a burden on a defendant. The
court said that where identity is at issue and the defendant has shown that the government has failed to disclose the
existence of an eyewitness to the crime itself, or to entry upon or flight from the scene of the crime, and persists in
refusal to name the witness, the defendants initial burden of showing the nature of the suppressed testimony has
been met by inference and it is then incumbent upon the prosecution to rebut the prima facie case of the defendant
by disclosing the nature of the potential testimony as communicated to it at the time of trial. The court concluded by
stating that it would leave to the District Court the question of what should constitute a sufficient governmental
showing in this respect whether the witness need be produced to test the accuracy of the prosecutions
representations as to what it had learned from him, and, if so, whether his examination should be in open court or by
the court in camera.
Permitting a police informer, who was present at both transactions involving sales of heroin allegedly by the
defendant, to leave the jurisdiction was conduct causing the unavailability of the informant as a witness, which
denied the defendant a fair trial, held the court in Hernandez v Nelson (1968, DC Cal) 298 F Supp 682, affd per
curiam (CA9) 411 F2d 619. At the date of the defendants arrest for selling heroin, the informer, who had introduced
the man who made the sales of heroin to the California narcotics officer who became the states chief witness
against the defendant, was himself under indictment and either in custody or available to the prosecution. In
granting a writ of habeas corpus to the defendant, the court pointed out that according to the narcotics officers
testimony, the informer was available to the state at the time of the defendants indictment, and also that the
defendants counsel at trial made a declaration that he had made numerous efforts to locate the informer, and that the
district attorney had told him that the informers intentions to leave the area were known to the prosecution. The
court, noting in addition that the defendant at all times sought the testimony of the informer because he contended
that the informer could exculpate him, concluded that (1) the informer was a material witness on the issue of the
defendants guilt, (2) his materiality was known to the district attorneys office prior to the defendants trial and at
the time it dismissed its case against the informer (3 days before the defendants indictment), (3) the prosecutor
knew that the informer would flee the area upon his case being dismissed, and (4) the prosecutor allowed the
informer to leave the area when by other conduct the informers availability could have been insured. The rule as to
informers is that the identity of an informer who is a material witness on the issue of guilt must be disclosed to a
defendant, said the court, concluding that this view, together with the proposition established by the United States
Supreme Court that the prosecutor may not knowingly engage in conduct which causes evidence which might be
favorable to the defendant to be unavailable to him, required the conclusion that the prosecutors conduct denied
the defendant a fair trial. It cannot be said that the defendant would have prevailed had the informer been present,
said the court, but in view of his denial of culpability, he was entitled to have the government refrain from conduct
causing the unavailability of the witness.
**8. F. THE FAILURE OF A PROSECUTOR, OR ANY AGENCY ACTING ON THE

PROSECUTORS BEHALF, TO TURN OVER POSSIBLE EXCULPATORY EVIDENCE TO A
DEFENDANT WILL BE CHARGED AGAINST THE PROSECUTOR, DESPITE ANY ACTUAL
KNOWLEDGE BY THE PROSECUTION OF THE EVIDENCE OR ANY LACK OF BAD FAITH BY
ANY PARTY. THE PROSECUTOR HAS AN AFFIRMATIVE DUTY TO SEARCH OUT
EXCULPATORY EVIDENCE AND ANY FAILED ATTEMPT TO TRANSMIT THE EXCULPATORY
EVIDENCE WILL NOT BE SUFFICIENT TO MEET THE DUE PROCESS REQUIREMENTS THAT
THE RULE IS MEANT TO PROTECT. HOWEVER, NON-DISCLOSURE WILL GIVE RISE TO A
DENIAL OF DUE PROCESS ONLY WHEN THE EVIDENCE IS MATERIAL.
Pepperdine Law Review 1999 26 Pepp. L. Rev. 734 Jennifer Vanse
Facts. The defendant, Brown, opened fire on police officers in an Orange County bar, killing one officer
and seriously wounding two other officers and two civilians. The state charged the defendant with first
degree murder. The defendant had a history of extensive drug use, including phencyclidine (PCP), and
asserted a defense of diminished...
...Emily D. Quinn, Comment, Standards of Materiality Governing the Prosecutorial Duty to Disclose Evidence to the
Defense, 6 alaska L. Rev. 147 (1989) (discussing the standards of materiality for Brady disclosures related to
voluntary disclosure by prosecutors or from defense counsel requests)....
...United States v. Agurs, 427 U.S. 97 (1976) (holding that failure of a defendant to request exculpatory evidence will
not exclude a prosecutors duty to disclose)....
...L. Rev. 887 (criticizing Agurs and discussing the prosecutors responsibility of disclosing promises made to
prosecution witnesses)....
...3 b.E. Witkin, California Evidence, Effect of Nondisclosure 1781 (3d ed. 1986) (discussing the materiality
standard for error in non-disclosure of favorable exculpatory evidence)....
**11. Failure of State Prosecutor to Disclose Existence of Plea Bargain or Other Deals with
Witness as Violating Due Process
American Law Reports ALR6th The ALR databases are made current by the weekly addition of relevant new
cases. 12 A.L.R.6th 267 (Originally published in 2006) Jay M. Zitter, J.D.
This annotation collects and discusses the state and federal cases in which the courts determined
whether the action of a state prosecutor in failing to disclose, produce, or reveal all or a portion of oral or
written plea bargains or other agreements with witnesses in exchange for their testimony at trial violated
federal due process guarantees as...
...Prosecutors failure to disclose letters written by prosecution witness requesting his transfer to different
correctional facility in exchange for his testimony and prosecutors transfer request did not violate Brady, in capital
murder prosecution, arising from fatal stabbing of defendants cellmate; even if the witness and prosecutor actually
reached an agreement for the transfer in exchange for witnesss testimony, so that the information would have
impeached witness, disclosure of the letters and transfer request would not have likely changed the outcome of the
guilty verdict or death sentence, as witnesss testimony was of relatively minimal importance, in that he only
corroborated other evidence showing escalating disputes between defendant and victim....
...The court explained that where the request by the defense for the prosecutions evidence is general, rather than
specific, evidence is material if the omitted evidence creates a reasonable doubt that did not otherwise exist....
...Pointing out that in situations in which the state fails to respond to a specific request, a conviction must be
reversed if the suppressed evidence was material in that it might have affected the outcome of trial, the court noted
that this evidence could have affected the verdict as the jury was presented with potentially false testimony by the
alleged eyewitnesses to the crime....
...Under the circumstances in People v. Ellis, 315 Ill. App. 3d 1108, 249 Ill. Dec. 132, 735 N.E.2d 736 (1st Dist. 2000),
the court reversed a murder conviction on due process grounds because the prosecution failed to reveal a potential
deal with a witness, an associate of the victim, as to an unrelated crime, both in response to a specific request
before trial and when the witness denied it....
**15. Failure of State Prosecutor to Disclose Pretrial Statement Made by Crime Victim as
Violating Due Process
whether the action of a state prosecutor in negligently or deliberately suppressing, losing, destroying, or
otherwise failing to produce statements by crime victims, made after the crime and before a criminal
trial on such charges, violated federal due...
...Since the defendant should have known about the document and even some of its contents, the court observed, he
should have obtained the evidence by a specific request for this statement....
...In Lockhart v. Com., 34 Va. App. 329, 542 S.E.2d 1 (2001), the court held that because pretrial statements by both
a child victim of sodomy and his family members, and police notes that allegedly were inconsistent with the victims
trial testimony and statements at the pretrial hearing, were immaterial, the state did not violate Brady due process
considerations by its failure to disclose the statements and notes, despite a specific and proper request for
exculpatory evidence....
...However, civil rights statute cases requesting damages or the like for due process violations are not included....
...The defendant also requested the disclosure of any and all other information that might tend to exculpate him
either through the indication of his innocence or through the potential impeachment of any states witness....
**25. Failure of State Prosecutor to Disclose Exculpatory Photographic Evidence as Violating

Due Process
whether the action of a state prosecutor in negligently or deliberately suppressing, destroying, or
otherwise failing to produce photographic evidence violated federal due process guarantees as set forth
in the landmark case of Brady v. Maryland, 373...
...The court reasoned that the state might have withheld evidence that was exculpatory and favorable to the
defendant, since even absent a specific request the state is under an affirmative duty to produce evidence whose
suppression would render a fair trial impossible....
...The court further noted that the defense requested and was granted an adequate opportunity to examine the
photographs before proceeding, that no request was made to reopen crossexamination of any of the states
witnesses, and that the defense failed to support its mistrial motion with a showing of prejudice arising from the
states actions....
...Instead, the court reasoned, the standard for the preservation of photo identification evidence is limited to
preserving arrays in which a victim or potential witness affirmatively identified a defendant or failed to identify a
defendant whose photograph had been specifically placed within the array after the police had focused on the
defendant as a suspect in the crime....
...Where the state did not reveal a photograph depicting the defendants bicycle thrown into the bushes near the spot
from which the victim was abducted, in violation of the discovery request of the defense to furnish the defense with
any photograph the state intended to introduce at trial prosecution, the court in State v. Johnson, 443 So. 2d 744 (La.
Ct. App. 4th Cir. 1983), a prosecution for aggravated rape, aggravated kidnapping, and armed robbery, held that the
states failure to comply with the discovery request would not result in a reversal....
**34. THE PROSECUTIONS DUTY TO PRESERVE EVIDENCE BEFORE TRIAL

California Law Review September, 1984 72 Cal. L. Rev. 1019 Che H. Lee
While courts have adequately dealt with prosecutorial suppression of evidence, an acceptable response
to the destruction or loss of relevant evidence has remained elusive. When evidence has been
suppressed, courts simply evaluate its probative value to determine whether a new trial is required.
However, when evidence is lost or destroyed, a court...
...When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever,
excusable....
...The Court held that, although the prosecution is not required to disclose everything specifically requested by the
defense, any doubt should be resolved in favor of the defense: Although there is, of course, no duty to provide
defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a
request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the
prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge....
...[FN75] The presumed characteristics approach improves the adverse-inference remedy by abandoning a
standard subject to differing interpretations in favor of one that firmly establishes specific characteristics....
...The preference for a broad definition of materiality can also be seen in Justice Marshalls dissent in Agurs, where
he attacked the third formulation of the materiality standard in the case as being too high: With all respect, this rule is
completely at odds with the overriding interest in assuring that evidence tending to show innocence is brought to the
jurys attention....
**39. OMNIBUS PROCEEDINGS IN FEDERAL COURT

Federal Rules Decisions 1978, 1979 80 F.R.D. 353 Adrian A. Spears , Stanley E. Crawford, Jr.
C1-7TABLE OF CONTENTS Page L1-6I. Scope of article 357 L2-6A. Examination of the Essence of
Omnibus Procedure 357 L3-61. Emphasis on Development in the Western District of Texas 357 L4-6a.
The Fundamental Issue 357 L4-6b. Individual Implementation 357 L5-6(1) Pertinent differences 357 L46c. Other Discussion 357 L1-6II. Introduction 357 L2-6A....
...(e) Discovery by defendant requiring a specific request...
...(e) Discovery by defendant requiring a specific request....
...Any exceptions noted below: _ _ _ _ _ 4. In addition to what has been requested and furnished as part of the
Governments case file, the Defendant requests the following items:...
...The fact that the Supreme Court has recently raised the showing of materiality required to obtain reversal when no
specific request has been made for Brady materials would not necessarily affect the number of appeals or postconviction challenges taken for such reasons....
**41. DISCOVERY
Georgetown Law Journal May, 2000 88 Geo. L.J. 1175 Joshua M. Levinson, Brian A. Lambert
Governments Constitutional Disclosure Duties. Defendants have no general constitutional right to

discovery in criminal proceedings. Nevertheless, courts have fashioned rules providing for the
disclosure of certain types of evidence when necessary to safeguard a defendants due process rights.
In Brady v. Maryland, the Supreme Court held that due...
.... See, e.g., U.S. v. Agurs, 427 U.S. 97, 107-11 (1976) (prosecutions constitutional duty to disclose favorable
evidence governed by materiality standard and not limited to situations where defendant has requested favorable
evidence)....
...The defendants request for discovery must be both timely [FN1104] and specific....
...[FN1035] Subsequent Supreme Court cases have established that the governments duty under Brady arises
whether or not the defendant specifically requests the favorable evidence....
...In Bagley, the defendant filed a pretrial discovery motion specifically requesting notice of any deals, promises, or
inducements made to witnesses in exchange for their testimony....
1036
See, e.g., U.S. v. Agurs, 427 U.S. 97, 107-11 (1976) (prosecutions
constitutional duty to disclose favorable evidence governed by materiality
standard and not limited to situations where defendant has requested
favorable evidence).
Silva v. Brown, 416 F.3d 980, 05 Cal. Daily Op. Serv. 6537, 2005 Daily Journal D.A.R. 8962 (9th Cir.(Cal.)
Jul 26, 2005) failure to disclose due process violation established
Horton v. Mayle, 408 F.3d 570, 2005 Daily Journal D.A.R. 5377 (9th Cir.(Cal.), May 10, 2005)
failure to disclose due process violation established

keywords: prosecutor district attorney failure to disclose names and
addresses telephone numbers of witnesses violating 14th amendment right to
due process
westnext_search_prosec_dist_atty_fail_discl_names_addresses_tel_numb_of_wi
tnesses_viol_14th_amend_right_to_due_process_ca_all_125_results.doc
**
19. Alvarado v. Superior Court
Supreme Court of California August 17, 2000 23 Cal.4th 1121 5 P.3d 203 S059827
CRIMINAL JUSTICE - Confrontation. Witnesses with crucial testimony could not testify anonymously at
trial.
...(See, e.g., United States v. Cavallaro (2d Cir.1977) 553 F.2d 300, 304 [the governments legitimate concern for the
witnesss safety justified denying the defendant the correct address of a witness, where the defense failed to state
why the information was material]; United States v. Persico (2d Cir.1970) 425 F.2d 1375, 13831384 [fear for the
witnesses personal safety justified the trial courts refusal to disclose their correct address and place of
employment, where the witnesses were well known to the defense and the defense failed to demonstrate a
particularized need for the information]; United States v. Marti...
...(See, e.g., People v. Ramirez (1997) 55 Cal.App.4th 47, 55, 64 Cal.Rptr.2d 9 [in a sexual assault case involving a
victim who was allowed to testify under the pseudonym Jane Doe, the defense was provided with complete
discovery, including the true name and address of the victim]; see also Siegfriedt v. Fair (1st Cir.1992) 982 F.2d 14,
17 [no violation of the defendants right of confrontation where the prosecution witness testified under a pseudonym
at a probable cause hearing, but the true identity of the witness was known to the defendant prior to trial, allowing
the defendant effectively to investigate and impeach the ...
...(See, e.g., Miller v. Superior Court (1979) 99 Cal.App.3d 381, 386, 159 Cal.Rptr. 456 [in a case involving a single
informant witness whose credibility was central to the defense, the defendant was deprived of his right of crossexamination by the withholding of the witnesss address]; United States v. Hernandez (9th Cir.1979) 608 F.2d 741,
744746 [where the principal prosecution witness participated in the events that were critical to the prosecutions
case, the identity of the witness could not lawfully be withheld from the defendants, but there was no reversible error
in permitting the witness...
... Indeed, to deprive an accused of the right to cross-examine the witnesses against him is a denial of the
Fourteenth Amendments guarantee of due process of law. ...
**24. Malone v. Kramer

United States District Court, E.D. California. April 06, 2010 Not Reported in F.Supp.2d 2010 WL 1404286
1:07CV00743AWISMSHC
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C.
2254. Petitioner is represented by Charles M. Bonneau, Jr., Esq. On May 13, 2004, following a jury trial
in the California Superior Court, County of Kern, Petitioner was convicted of second degree murder
(Cal. Pen.Code 187(a)) and...
...Petitioner further contends that the prosecutors failure to keep in contact with an informant, failure to reveal
exculpatory evidence under Brady, and the trial courts finding that Petitioner was not entitled to discovery in the
possession of the Federal Bureau of Investigations, violated his due process right to a fair trial....
...Petitioner contends that he was denied his rights to present a defense and due process under the Sixth and
Fourteenth Amendments by the trial courts refusal to provide a jury instruction on the uncharged, lesser related
offense of accessory-after-the-fact ( 32) to murder....
...Petitioner contends that the prosecutor withheld crucial evidence implicating Orbus Weathers being involved in the
murder resulting in a violation of his due process rights of the Fifth and Fourteenth Amendments of the United
States Constitution under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)....
...A review of Patricia Allens declaration and the letter in which the District Attorney acknowledged that Ms. Allen
attempted to contact his office before trial, reveals that the parties never established contact and consequently the
District Attorney had much less information in his possession than Petitioner suggests....
**
25. Connick v. Thompson
Supreme Court of the United States March 29, 2011 131 S.Ct. 1350 2011 WL 1119022 09-571
CIVIL RIGHTS - Municipal Liability. Need for further training of prosecuting attorneys was not so
obvious as to support liability.
...To prove deliberate indifference, of kind required to hold district attorney liable, on failure-to-train theory under
1983, for Brady violation committed by his subordinate prosecutors, former criminal defendant had to show that
district attorney was on notice that, absent additional specific training, it was highly predictable that prosecutors in
his office would be confounded by Bradys gray areas and make incorrect Brady decisions as result; former criminal
defendant had to show that it was so predictable that failing to train prosecutors...
... Or a district attorney could be deliberately indifferent if he had a practice of paring well-trained prosecutors with
untrained prosecutors, knew that such supervision had stopped untrained prosecutors from committing Brady
violations, but nevertheless changed the staffing on cases so that untrained prosecutors worked without
supervision....
...The Court holds that the Orleans Parish District Attorneys Office (District Attorneys Office or Office) cannot be
held liable, in a civil rights action under 42 U.S.C. 1983, for the grave injustice Thompson suffered....
... Thompson alleged liability under two theories: (1) the Brady violation was caused by an unconstitutional policy of
the district attorneys office; and (2) the violation was caused by Connicks deliberate indifference to an obvious
need to train the prosecutors in his office in order to avoid such constitutional violations....
**
34. Cone v. Bell
Supreme Court of the United States April 28, 2009 556 U.S. 449 129 S.Ct. 1769 07-1114
CRIMINAL JUSTICE - Death Penalty. Remand was required to review effect of improperly suppressed
evidence regarding defendants drug problem on his sentence.
... Accordingly, we have held that when the State withholds from a criminal defendant evidence that is material to his
guilt or punishment, it violates his right to due process of law in violation of the Fourteenth Amendment....
...In this case, Gary Cone, a Vietnam veteran sentenced to death, contends that the State of Tennessee violated his
right to due process by suppressing witness statements and police reports that would have corroborated his trial
defense and bolstered his case in mitigation of the death penalty....
...The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth
Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure that justice shall
be done in all criminal prosecutions....
... In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we held that when a State suppresses
evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendants right
to due process, irrespective of the good faith or bad faith of the prosecution. ...
**36. Fonseca v. Hall

United States District Court, C.D. California. July 18, 2008 568 F.Supp.2d 1110 2008 WL 2949429 CV04-5836CJC (RC)
CRIMINAL JUSTICE - Sentencing. Imposition of three consecutive life sentences did not constitute
cruel and unusual punishment.
... Here, however, respondents Teague defense is specious since Ground Six is not, as respondent suggests, a claim
that petitioner has the right to have the jury instructed in whatever manner he wishes, but rather, that he was
deprived of due process of law because the trial court did not give instructions on petitioners theory of defense-a
well-recognized due process claim....
...);**Bradley, 315 F.3d at 1098-1101 (Supreme Court has clearly established the right to present a complete and
meaningful defense to the jury, which includes the right to have the jury instructed on the defense theory of the
case, under the principles set out in Mathews and Trombetta.)....
... Given the nature and strength of the evidence against petitioner, even if defense counsel was ineffective in failing
to object to the prosecutors references in his opening statement, petitioner has not established prejudice from
defense counsels failure....
... Similarly, petitioners claim that defense counsel was ineffective in failing to sufficiently investigate the prosecution
witnesses to determine false testimony and that the witnesses had been told they would be allowed to remain in
the U.S. free of INS interference in exchange for testimony favorable to the prosecution has no factual basis....
California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (U.S.Cal., Jun 11, 1984)
In various cases, motions to suppress evidence obtained from intoxilyzer breath test were denied. In each
municipal court case, the Superior Court, Sonoma County, affirmed, and the Court of Appeal accepted transfer. In
other cases defendants sought relief by way of habeas corpus. Cases were consolidated. The Court of Appeal of
California, First District, Division Four, 142 Cal.App.3d 138, 190 Cal.Rptr. 319, granted new trials to habeas corpus
petitioners and ordered that intoxilyzer results not be admitted as evidence against other two drivers. The State
unsuccessfully petitioned for certiorari in the California Supreme Court, and the United States Supreme Court
granted certiorari. The Supreme Court, Justice Marshall, held that due process clause does not require that law
enforcement agencies preserve breath samples of suspected drunk drivers in order for results of breath-analysis tests
to be admissible in criminal prosecutions.
Reversed and remanded.
Justice O'Connor filed concurring opinion.
West Headnotes
4594(1)
92XXVII Due Process
92XXVII(H)4 Proceedings and Trial
92k4592 Disclosure and Discovery
92k4594 Evidence
**Due process clause of the Fourteenth Amendment requires state to disclose to criminal defendants favorable
evidence that is material either to guilt or to punishment. U.S.C.A. Const.Amend. 14.
4500
92XXVII Due Process
92XXVII(H)1 In General
**Under due process clause of Fourteenth Amendment, criminal prosecutions must comport with prevailing
notions of fundamental fairness. U.S.C.A. Const.Amend. 14.
627.6(1)
110 Criminal Law

110XX Trial
110k627.5 Discovery Prior to and Incident to Trial
110k627.6 Information or Things, Disclosure of
110k627.6(1) k. In general. Most Cited Cases
**Defendant has constitutionally protected privilege to request and obtain from prosecution evidence that is
either material to guilt of defendant or relevant to punishment to be imposed.
627.8(3)
110 Criminal Law

110XX Trial
110k627.8 Proceedings to Obtain Disclosure
110k627.8(3) k. Application, motion or request; affidavits. Most Cited Cases
**Even in absence of specific request, prosecution has constitutional duty to turn over exculpatory evidence that
would raise reasonable doubt about defendant's guilt.
627.6(1)
110 Criminal Law

110XX Trial
110k627.6 Information or Things, Disclosure of
Criminal Law 110
110 Criminal Law
110XX Trial
627.10(1)

110k627.10 Informers or Agents, Disclosure
Prosecution must reveal contents of plea agreements with key government witnesses, and under some
circumstances may be required to disclose identity of undercover informants who possess evidence critical to
defense.
[2] Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with
prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal
defendants be afforded a meaningful opportunity to present a complete defense. **To safeguard that right, the Court
has developed what might loosely be called the area of constitutionally guaranteed access to evidence. United
States v. ValenzuelaBernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982). Taken together, this
group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the
innocent from erroneous conviction and ensuring the integrity of our criminal justice system.
[3][4][5] The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional
obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v.
Illinois, 360 U.S. 264, 269272, 79 S.Ct. 1173, 11771179, 3 L.Ed.2d 1217 (1959); see also Mooney v. Holohan,
294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). But criminal defendants are entitled to much more than protection
against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution
evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed . Brady v.
Maryland, 373 U.S., at 87, 83 S.Ct., at 1196. Even in the absence of a specific request, the prosecution has a
constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's
guilt. United States v. Agurs, 427 U.S., at 112, 96 S.Ct., at 2401. The prosecution must also reveal the contents of
plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d
104 (1972), and under some circumstances may be required to disclose the identity of undercover informants who
possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
*486 Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the
government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond
the government's possession. On a few occasions, we have suggested that the Federal Government might transgress
constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for
trial. For instance, in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), and in
United States v. Lovasco, 431 U.S. 783, 795, n. 17, 97 S.Ct. 2044, 2051 n. 17, 52 L.Ed.2d 752 (1977) , we intimated
that a due process violation might occur if the Government delayed an indictment for so long that the defendant's
ability to mount an effective defense was impaired. Similarly, in United States v. ValenzuelaBernal, supra, we
acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting
potential witnesses, it diminished a defendant's opportunity to put on an effective defense.FN6 458 U.S., at 873, 102
S.Ct., at 3450.
FN6. In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that
criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who
have testified on the government's behalf. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d
347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
See
California Criminal Practice: Motions, Jury Instructions and Sentencing
Current through the 2010 update
Edward A. Rucker and Mark E. Overland
Chapter 13. Discovery
III. Formal Discovery
13:10. Formal DiscoveryPoints and authorities
Cunningham v. City of Wenatchee, 345 F.3d 802, 811, (9th Cir.(Wash.) Oct 03, 2003)
C. Cunningham's DeliberateFabricationofEvidence Claim

[18] Cunningham next argues Perez violated his right to be free from prosecution based on false evidence. We
have held there is a clearly established constitutional due process right not to be subjected to criminal charges on
the basis of false evidence that was deliberately fabricated by the government. Devereaux v. Abbey, 263 F.3d 1070,
107475 (9th Cir.2001) (en banc). To prevail, Cunningham must show: (1) Perez continued his investigation
despite the fact that[he] knew or should have known that [Cunningham] was innocent; or (2) [Perez] used
investigative techniques that were so coercive and abusive that [he] knew or should have known those techniques
would yield false information. Id. at 1076.
[19] First, Cunningham alleges that Perez should have known he was innocent because his confession was
coerced and his daughters did not immediately corroborate the confession. We do not agree. Cunningham's
confession was legal, and thus it was reasonable for Perez to continue the investigation. Further, the daughters' initial
failure to corroborate Cunningham's *812 confession is not sufficient for Perez to cease the investigation. It is
common for sex abuse victims to suppress memories of the assault or deny that it happened. Perez thus did not
violate Cunningham's rights by continuing the investigation.
Second, Cunningham alleges that Perez used coercive tactics while interviewing Cunningham's daughters which
he knew would yield false information. It is true that Perez kept questioning the daughters after they initially denied
the sex abuse. Perez may have also told Jessica that she could not leave Pinecrest until she confessed to the abuse.
Perez's conduct, while inappropriate, does not satisfy Devereaux. Cunningham must produce more than mere
allegations that Perez used improper interview techniques. Id. Further, the court gives interviewers of child
witnesses suspected of sexual abuse discretion in deciding when to accept initial denials at face value and when to
reject them.... Id. at 1077. Accordingly, Perez's interviews were not so coercive and abusive that he knew or should
have known that he would receive false information.
D. Cunningham's Exculpatory Evidence Claim
[20][21] Cunningham concludes by arguing that Perez violated the Due Process Clause of the Fourteenth
Amendment by failing to preserve and gather exculpatory evidence. A police officer's failure to preserve or collect
potential exculpatory evidence does not violate the Due Process Clause unless the officer acted in bad faith. Arizona
v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Miller v. Vasquez, 868 F. 2d 1116, 1120 (
9th Cir. 1989). The presence or absence of bad faith ... turn[s] on the police's knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 57, 109 S.Ct. 333.
[22] Cunningham claims Perez acted in bad faith because he failed to document his interrogations and did not
keep a record of Jennifer and Sarah's statements denying sexual abuse. Perez also failed to gather any physical
evidence, such as bed sheets or clothing, which could have exonerated Cunningham. These facts are not specific or
compelling enough to show bad faith. See Jeffers, 267 F.3d at 907(stating plaintiff must put forward specific,
nonconclusory factual allegations that establish improper motive) (internal quotations omitted). Perez's failure to
document his interrogations does not illustrate an improper motive because Perez likely believed his tactics were
lawful, a conclusion which we reached earlier in the opinion. Further, Perez's failure to gather any physical evidence
does not show bad faith because the value of the untested evidence is speculative. It could have exonerated
Cunningham, but it also could have incriminated him. While Perez's investigative work may have been negligent or
incomplete, it was not conducted in bad faith. Perez's investigation differs from cases in which the court has found
an improper motive. In Miller v. Vasquez, 868 F. 2d 1116 ( 9th Cir. 1989), for instance, the officer referred to the
defendant using an expletive and lied about his knowledge of potential exculpatory evidence. Id. at 1121. The
officer also tried to dissuade witnesses from testifying in favor of the defendant. Id. Perez's alleged conduct did not
rise to this level. Id. Accordingly, we find Cunningham has not alleged specific, nonconclusory facts showing Perez
engaged in a conscious effort to suppress exculpatory evidence. California v. Trombetta, 467 U.S. 479, 488, 104
S.Ct. 2528, 81 L.Ed.2d 413 (1984).
People v. Velasco, 194 Cal.App.4th 1258, 1264, 124 Cal.Rptr.3d 238, (Cal.App. 6 Dist., Apr 29, 2011)
**
38. Jackson v. Brown
United States Court of Appeals, Ninth Circuit. January 23, 2008 513 F.3d 1057 2008 WL 185528 04-99006, 0499007
CRIMINAL JUSTICE - Discovery. Materiality element of Brady and Napue claims were satisfied with
respect to jurys special circumstances finding.
...The prosecution violated Brady by failing to disclose inducements provided to both Mikles and McFarland, and it
violated Napue by allowing these witnesses to present false testimony about these inducements....
... Finally, the admission of Rushings preliminary hearing testimony violated Jacksons right to confrontation....
... We must ask whether the aggregated errors so infected the trial with unfairness as to make the resulting
conviction a denial of due process....
**
42. Giglio v. U.S.
Supreme Court of the United States February 24, 1972 405 U.S. 150 92 S.Ct. 763 70-29
While appeal from a judgment of conviction was pending in the Court of Appeals, defense counsel filed
a motion for new trial on basis of newly discovered evidence. The District Court denied the motion. On
certiorari to the Court of Appeals, the Supreme Court, Mr. Chief Justice Burger, held that if assistant
United States attorney, who first dealt...
...If assistant United States attorney, who first dealt with key Government witness, promised witness that he would
not be prosecuted if he cooperated with the Government, such a promise was attributable to the Government,
regardless of whether attorney had authority to make it, and nondisclosure of promise, which was not communicated
to assistant United States attorney who tried the case, would constitute a violation of due process....
...On certiorari to the Court of Appeals, the Supreme Court, Mr. Chief Justice Burger, held that if assistant United
States attorney, who first dealt with key Government witness, promised witness that he would not be prosecuted if
he cooperated with the Government, such a promise was attributable to the Government, regardless of whether
attorney had authority to make it, and nondisclosure of promise, which was not communicated to assistant United
States attorney who tried the case, would constitute a violation of due process...
...Held: Neither the Assistants lack of authority nor his failure to inform his superiors and associates is controlling,
and the prosecutions duty to present all material evidence to the jury was not fulfilled and constitutes a violation of
due process requiring a new trial....
...Where Governments case depended almost entirely on testimony of a witness who was named as a
coconspirator but was not indicted, and without it there could have been no indictment and no evidence to carry case
to jury, such witness credibility was important issue in case, and evidence of any understanding or agreement as to
future prosecution would be relevant to such witness credibility and jury was entitled to know of it....
Coleman v. Calderon, 210 F.3d 1047, 00 Cal. Daily Op. Serv. 3404, 2000 Daily Journal D.A.R. 4635 (9th
Cir.(Cal.), May 02, 2000)
Defendant, whose state court convictions for rape, sodomy, and murder and death sentence were affirmed on
direct appeal, 46 Cal.3d 749, 251 Cal.Rptr. 83, 759 P.2d 1260, filed petition for habeas corpus relief. The United
States District Court for the Northern District of California, Ronald M. Whyte, J., denied relief as to conviction but
granted as to sentence based on improper penalty phase instruction. Cross-appeals were taken. The Court of
Appeals, 150 F.3d 1105, affirmed, but, on state's petition for certiorari, the Supreme Court, 525 U.S. 141, 119 S.Ct.
500, reversed and remanded for determination of whether erroneous jury instruction was harmless. On remand, the
Court of Appeals, Thompson, Circuit Judge, held that: (1) instruction on governor's power to commute sentence was
unconstitutional; (2) error in giving instruction was not harmless and thus warranted relief from death sentence; but
(3) state's concealment of evidence did not warrant relief from conviction.
[6] Habeas Corpus 197
480
197 Habeas Corpus

197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for Detention in General
197k480 k. Discovery and disclosure. Most Cited Cases
**State's concealment of evidence during trial did not prejudice habeas petitioner in a way that rendered his trial
fundamentally unfair, since defense was able to counter state's presentation of evidence and other evidence against
petitioner was ample, and, thus, even if petitioner was not barred, under law of the case doctrine, from challenging
his conviction on grounds of such concealment, on remand to Court of Appeals from Supreme Court for
consideration of whether instructional error at sentencing was harmless, petitioner was not entitled to relief.
**Coleman asserts he is entitled to relief from his conviction because the prosecution affirmatively concealed
the results of a Hemastix test and bloody print evidence it disclosed. According to Coleman, springing this
inculpatory evidence on him *1052 at the time of trial without prior notice violated his Due Process right to a fair
trial because it denied him a reasonable opportunity to know the claims of the opposing party and to meet them .
Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); see also Lindsey v. Smith, 820 F.2d
1137, 1151 (11th Cir.1987); United States v. Baum, 482 F.2d 1325, 133132 (2d Cir.1973). In our previous opinion,
we concluded this argument was foreclosed by Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.
2d 457 ( 1996). See Coleman, 150 F.3d at 1112. We were wrong about that. Coleman now correctly points out that
Gray never held that due process is not violated when the government affirmatively conceals inculpatory evidence.
The petitioner in Gray raised the issue, but the Supreme Court did not decide it. The Court instead remanded the
case to determine whether the argument was procedurally barred. See Gray, 518 U.S. at 170 71, 116 S.Ct. 2074.
Woods v. Adams, 2010 WL 3789546, p. 4, (C.D.Cal., Jul 30, 2010)
III. PETITIONER'S CLAIMS

Petitioner states nine claims for federal habeas corpus relief [FAP at 2]:
**1. The prosecutor withheld address information on witnesses
And the court stated at p. 5,

V. DISCUSSION
A. GROUND ONE: WITHHOLDING WITNESS INFORMATION
In present ground one, Petitioner claims that the prosecutor withheld from the defense address information
about seven witnesses, despite pretrial and trial disclosure orders, and that this action and the trial court's failure to
enforce discovery violated Petitioner's Fourteenth Amendment right to due process and his Sixth Amendment right
to confront witnesses. [FAP at 2; R. Mem. at 11-23.] Petitioner raised this claim on direct appeal, and exhausted it
before the California Supreme Court in his petition for review. [AOB at 16-30; ARB at 3-6; PFR at 16-27.] In
reviewing ground one, this court may look through the state supreme court's summary denial on direct review (in
No. S109149) to the reasoned opinion by the court of appeal. [Opinion at 6-14.]
*6 The court of appeal summarized the background to this claim as follows: FN7
FN7. As above, names have been substituted (based on the record as a whole) where the opinion used only
initials.
Defendants contend the prosecution prevented them from contacting3 witnesses who were in the group with
[Lavale Weldon] and Latoya Stansberry outside the [Weldon-Vance] apartment when the shooting occurred. The
evidence showed that, besides [Lavale Weldon] and Stansberry, the group outside the apartment consisted of
Michelle [Reed], [Jason Weldon], and [Deborah Weldon], Albert and Michael Brady, and Deondre Glasper. As
stated ante, Michelle [Reed] was the mother of [Lavale Weldon]'s child, [Jason Weldon] was [Lavale Weldon]'s
brother, and [Deborah Weldon] his sister. The other three were friends of the [Weldon] family.
Prior to trial, in March 2000, the defense made a motion for discovery of the names and addresses of witnesses
to be called by the prosecution and names and addresses of percipient nontestifying witnesses . In April 2000, the
court ordered the prosecution to give defense counsel any information regarding the whereabouts of the [Weldon]
witnesses.
Trial began in July 2000. At various times in July, August, and September 2000, the parties and court discussed
the matter of discovery of the eyewitnesses. On August 15, 2000, the court ordered the prosecutor to give the
eyewitnesses' addresses to the defense or make the eyewitnesses available to the defense. The record is not clear
as to what information the prosecution provided. However, it appears that at least the following occurred:
Out of the six eyewitnesses other than Latoya Stansberry, it appears the defense had contact with two , [Lavale
Weldon] and Michelle [Reed]. However, both [Lavale Weldon] and Michelle [Reed] declined to speak to defense
counsel about the case. [Lavale Weldon] and Michelle [Reed] testified for the prosecution at trial.
The remaining eyewitnesses, [Jason Weldon], [Deborah Weldon], Albert and Michael Brady, and Deondre
Glasper, did not testify. At all times on the record, the prosecutor stated he did not know where these witnesses
were. The prosecutor said none of the [Weldons] would provide their address or phone number, and he had to
contact them through Michelle [Reed]'s mother. He had tried unsuccessfully to locate the Bradys and had
provided the defense investigator with the Bradys' last known address.
It is not clear whether the prosecutor had valid addresses for any of the eyewitnesses at any time after the
defense requested them. According to defense counsel, the prosecution when it disclosed its witnesses refused to
provide addresses for witnesses other than law enforcement, on the grounds that the addresses were in the police
reports and witnesses were fearful of retaliation. However, defense counsel stated the addresses in the police
reports were incorrect. The prosecutor, as stated ante, maintained when trial started and thereafter that he did not
know where the eyewitnesses were. He did not indicate whether he had valid addresses for them at some earlier
time which he withheld from the defense.
*7 During the defense case, defense counsel asserted that Michael Brady and [Deborah Weldon] had made
statements to the police which contradicted [Lavale Weldon]'s testimony about his actions during the shooting and
showed he could not have seen who the shooters were. Since neither side had been able to locate Brady and
[Deborah Weldon], defense counsel wanted the officers who interviewed them to testify to their statements, to
impeach [Lavale Weldon]'s testimony. The court declined to let the defense present the statements through the
officers, noting there was no applicable hearsay exception.
[Opinion at 6-8; see also PFR at 16-21; R. Mem. at 11-15.]
In reviewing Petitioner's claim, the court of appeal stated that a criminal defendant's discovery rights arise from
two sources-state statute and the federal constitution; that the prosecution's obligation to disclose information under
the federal constitution, in particular, only extended to material, exculpatory information within the prosecution's
control; and that, to prevail on such a claim, a defendant must also show a reasonable probability that, had the
evidence in question been disclosed, the result would have been different. [Opinion at 8-9.]
Petitioner has contended that the prosecution was required to provide the defense with address and telephone
information for these witnesses under the state discovery statute, California Penal Code section 1054 et seq., FN8 and
**that the failure to do so violated his rights under the Due Process Clause of the Fourteenth Amendment and **the
Confrontation Clause of the Sixth Amendment. [PFR at 21-27.] Here, Petitioner appears to be merging two separate
claims: first, that the prosecution was required by statute to disclose this information about all the witnesses named
above, and violated state law by not doing so, and, second, that failure to disclose information about specific
witnesses violated Petitioner's federal rights under the due process and confrontation clauses. [PFR at 15-27.] In
particular, Petitioner contends that denial of access to address information for Lavale Weldon, Michelle Reed,
Deborah Weldon, and Michael Brady, deprived him of possible impeachment evidence against Reed and, especially,
Lavale Weldon. [Id.]
FN8. For example, the statute requires the prosecution to disclose to defense counsel the names and
addresses of persons the prosecutor intends to call as witnesses at trial. Cal.Penal Code 1054.1(a).
Insofar as Petitioner is simply contending that the prosecution's failure to disclose this information violated the
California discovery statute, he fails to state a claim cognizable on federal habeas corpus review . See Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (federal habeas relief not available for state
court error in interpreting or applying state law); Bonin v. Calderon, 77 F.3d 1155, 1161 (9th Cir.1996) (no federal
habeas relief for state law error not amounting to denial of federal constitutional right); see also United States v.
Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (no general federal constitutional right to
discovery in criminal cases) (citing Weatherford v. Bursey, 429 U.S. 545, 560, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977));
Gray v. Netherland, 518 U.S. 152, 168, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (same); United States v. Branch,
No. 08-35853, 2010 WL 737842, *2 (9th Cir. Mar.3, 2010) (unpublished slip opinion) (same).
*8 On the other hand, criminal defendants do have a basic fair trial right to receive from prosecutors
exculpatory impeachment material. Ruiz, 536 U.S. at 628-29 (due process requires prosecutors make available
upon request evidence favorable to an accused ... where the evidence is material either to guilt or to punishment)
(citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); United States v. Agurs, 427 U.S.
97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (defense request unnecessary); Kyles v. Whitley, 514 U.S. 419,
435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (exculpatory evidence is evidence the suppression of which would
undermine confidence in the verdict); United States v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985) (under Brady rule, prosecution is required only to disclose evidence favorable to the accused that, if
suppressed, would deprive the defendant of a fair trial); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972) (material, exculpatory evidence includes evidence affecting witness credibility, when
witness's reliability is likely determinative of guilt or innocence).FN9 Furthermore, defendants have the right,
under the Confrontation Clause, to effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
S.Ct. 1431, 89 L.Ed.2d 674 (1986). The right to confrontation includes the right, on cross-examination, to question a
witnesses for his true name and address. Pennsylvania v. Ritchie, 480 U.S. 39, 54 n. 10, 107 S.Ct. 989, 94 L.Ed.2d
40 (1987) (citing Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968)). However, the right to
confrontation is a trial right, and not a constitutionally compelled rule of pretrial discovery. Ritchie, 480 U.S. at
52-53.
FN9. If a Brady violation has been established, no further harmless error analysis applies. See Kyles, 514 U.S. at 435
**
63. Moore v. Illinois
Supreme Court of the United States June 29, 1972 408 U.S. 786 92 S.Ct. 2562 69-5001
Defendant was convicted in the Circuit Court, Cook County, Illinois, of murder and was sentenced to
death and he appealed. The Supreme Court of Illinois, 42 Ill.2d 73, 246 N.E.2d 299, affirmed, and
certiorari was granted. The Supreme Court, Mr. Justice Blackmun, held that, although before trial
defense moved for disclosure of all written statements...
...When the prosecutor consciously uses police officers as part of the prosecutorial team, those officers may not
conceal evidence that the prosecutor himself would have a duty to disclose....
...A citizen has the right to expect fair dealing from his government, see Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct.
968, 3 L.Ed.2d 1012, and this entails . . . treating the government as a unit rather than as an amalgam of separate
entities....
...My reading of the case leads me to conclude that the prosecutor knew that evidence existed that might help the
defense, that the defense had asked to see it, and that it was never disclosed....
...In the recent decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), holding that
use immunity was co-extensive with the Fifth Amendment privilege against self-incrimination, the Court noted that
prosecutors may be responsible for actions of police officers enlisted to aid a prosecution....
**
64. Reid v. Superior Court
Court of Appeal, Sixth District, California. June 20, 1997 55 Cal.App.4th 1326 64 Cal.Rptr.2d 714 H015958
CRIMINAL JUSTICE - Discovery. Order barring defense from directly contacting alleged sex offense
victims was not justified.

... We conclude the victims expressed wish to protect their right to privacy cannot provide the basis for a superior
court order to interfere with the defendants normally unrestricted right to contact prosecution witnesses.6...
...[9]Once a defendant has been charged in a criminal action with sexual assault crimes, he or she has the right to
the benefit of the discovery provisions of section 1054.1 regarding the prosecutions trial witnesses, notwithstanding
the limitations on disclosure of information contained in sections 293 and 841.5....
... Moreover, subdivisions (c) and (d) of section 293 preclude a law enforcement agency from releasing the name and
address of a sexual assault victim to anyone except the prosecutor....
...The names and addresses of sexual assault victims must be disclosed to the defendant in a criminal case
regardless of other statutory provisions that protect sexual assault victims from unwanted publicity and, in the
absence of a showing of good cause as defined in section 1054.7 or actual harassment as discussed in section 1054,
subdivision (d), the defense cannot be prohibited from directly contacting those victims....
**
67. Smith v. Cain
Supreme Court of the United States January 10, 2012 132 S.Ct. 627 2012 WL 43512 10-8145
CRIMINAL JUSTICE - Discovery. Witnesss statements to police, made on night of murder and five
days after murder, were material for purposes of Brady.
...Under Brady, the State violates a defendants right to due process if it withholds evidence that is favorable to the
defense and material to the defendants guilt or punishment. U.S.C.A. Const.Amend. 14....
...Witnesss statements to police, made on night of murder and five days after murder, were material, as required for
statements to be subject to mandatory disclosure by prosecution under Brady, where witnesss testimony was the
only evidence linking defendant to the crime, and his undisclosed statements directly contradicted his trial testimony,
in that he told jury that he had [n]o doubt that defendant was the gunman that he stood face to face with on the
night of the crime, but officers notes showed that witness said he could not ID anyone because [he] couldnt see
faces and would not know them if [he] saw them....
...[1][2][3]Under Brady, the State violates a defendants right to due process if it withholds evidence that is
favorable to the defense and material to the defendants guilt or punishment....
...The Court holds that Juan Smith is entitled to a new murder trial because the State, in violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), did not disclose that the eyewitness who identified
Smith at trial stated shortly after the murders that he could not identify any of the perpetrators....
78. People v. Doolin

Supreme Court of California January 05, 2009 45 Cal.4th 390 198 P.3d 11 S054489
CRIMINAL JUSTICE - Counsel. Capital counsel did not render ineffective assistance based on alleged
conflict of interest arising from compensation agreement.
... In arguments elsewhere, defendant asserts violation of his federal constitutional rights to due process under the
Fourteenth Amendment, a fair trial by jury under the Sixth and Fourteenth Amendments, counsel under the Sixth
Amendment, or a reliable determination of guilt and penalty in a capital case under the Eighth and Fourteenth
Amendments....
...The derivative claim that, because counsel labored under an unconstitutional conflict of interest, defendant was
denied his rights to due process under the Fourteenth Amendment, confrontation under the Sixth Amendment,
and a reliable determination of guilt and penalty in a capital case under the Eighth and Fourteenth Amendments,
also fails....
...Defendant contends the trial court abused its discretion in denying his pretrial request for the appointment of
second counsel, thereby depriving him of due process, the right to counsel, and the right to a reliable guilt and
penalty phase determination....
...A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due process. ...
**
85. People v. Earp
Supreme Court of California June 24, 1999 20 Cal.4th 826 978 P.2d 15 S025423
CRIMINAL JUSTICE - Trial. Testimony that defense team tried to bribe witness did not cause
miscarriage of justice at capital trial.
...[54]Defendant also claims the exclusion violated his Sixth Amendment right to confront an adverse witness
(Morgan as well as Milkey) and Fifth and Fourteenth Amendment rights to present evidence in his own behalf. ...
... In Melton, we held that [a] defendants constitutional right to confront a witness does not entitle him to obtain
court-ordered evidence in violation of the witnesss constitutional rights against unreasonable searches and
seizures. ...
...Defendant contends that in cross-examining defense witnesses Gloria Carl and James Park, the prosecutor
committed prejudicial misconduct that violated not only state law but also the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution....
...Defendant contends that in admitting and excluding proffered evidence at trial, the trial court committed errors that
individually and cumulatively deprived him of due process and a fair trial in violation of the Fifth, Eighth, and
Fourteenth Amendments to the federal Constitution as well as unspecified provisions of California law....
**
103. People v. Harris
Supreme Court of California August 29, 2005 37 Cal.4th 310 118 P.3d 545 S058092
CRIMINAL JUSTICE - Death Penalty. Capital murder defendant was not entitled to disparage victims
mother in penalty trial.
...Prosecutorial intimidation of, or interference with, defense witnesses violates the Sixth Amendment right to
compel the attendance of witnesses and the Fourteenth Amendment right to due process. U.S.C.A.
Const.Amends. 6, 14....
...[37][38]Defendant next asserts that the prosecution caused three potential witnesses to Cantos murder in Chicago
to change their minds about testifying on defendants behalf, and thereby interfered with his right to compulsory
process in violation of various constitutional rights....
...The Eighth Amendment permits introduction of victim impact evidence in capital cases, or evidence of the specific
harm caused by the defendant, when admitted in order for the jury to assess meaningfully the defendants moral
culpability and blameworthiness, but such evidence violates Fourteenth Amendments due process clause when it
is so unduly prejudicial that it renders the trial fundamentally unfair. U.S.C.A. Const.Amends. 8, 14....
... He argues this violated his Eighth Amendment right to have the court give guidance as to the mitigating factors
to be considered, citing McDowell v. Calderon (9th Cir.1997) 130 F.3d 833....
**107. People v. Salazar

Supreme Court of California June 06, 2005 35 Cal.4th 1031 112 P.3d 14 S119066
CRIMINAL JUSTICE - Discovery. Alleged suppression of impeachment evidence against state witness
in murder trial did not establish Brady violation.
...Whether, in this case, the district attorney followed his stated policy of resolving doubtful questions in favor of
disclosure is not for us to say, since the due process clause does not tax the prosecutor with error for any failure
to disclose, absent a further showing of materiality. ...
...The referee further found that the prosecutors concerns about Dr. Ribes testimony arose at least by September
26, 1996, when police investigators met with the district attorneys office to discuss whether Eve Wingfield was
erroneously in custody for the death of two-year-old Lance Helms, and that supervisory and administrative personnel
[in the district attorneys office] were on Ribe notice at the time of the Salazar trial...
...In support of his claim that the evidence is material, petitioner initially relied heavily on the fact that the Los Angeles
County District Attorneys Office had assembled boxes of materials concerning Dr. Ribes testimony in Wingfield
and in other cases and had directed deputy district attorneys to make this information available to defense counsel
in cases where Dr. Ribe was expected to testify....
...[763,] 766 [31 L.Ed.2d 104] [(1972)] (Brady violation found where government failed to disclose promise not to
prosecute cooperating witness on whom governments case against defendant almost entirely depended), or where
the likely impact on the witnesss credibility would have undermined a critical element of the prosecutions case, see
United States v. Badalamente, 507 F.2d 12, 1718 (2d Cir.1974) (same re nondisclosure of hysterical letters that
would have had powerful adverse effect on witnesss credibility, where that credibility was...
**
108. People v. Hayes
Supreme Court of California, In Bank. December 31, 1990 52 Cal.3d 577 802 P.2d 376 CR. 22477, S004421
Defendant was convicted of robbery, burglary, and first-degree murder, and was sentenced to death, in
the Superior Court, San Joaquin County, K. Peter Saiers, No. 30924, and judgment was automatically
appealed. The Supreme Court, Kennard, J., held that: (1) trial court properly concluded that
prosecutions peremptory challenges of...

...[22]Under the due process clause of the Fourteenth Amendment to the United States Constitution, the
prosecution has a duty to disclose all substantial material evidence favorable to an accused, including evidence
bearing on the credibility of a prosecution witness; the duty exists whether or not the evidence has been requested,
and it is violated whether or not the failure to disclose is intentional....
... The Sixth Amendment right to confront witnesses does not forbid the use of prior out-of-court statements by a
declarant who testifies at trial and is subject to full cross-examination in regard to the prior statement....
... Defendant argues, however, that the right of confrontation is broader than the right to cross-examine, and that an
advisement and waiver of the right to cross-examine does not constitute an advisement and waiver of the right of
confrontation....
... Despite the prosecutors representations in this case that no promises had been made to James regarding the
disposition of his pending charges, and despite Jamess testimony to that effect, defendant now argues that the
prosecutor must have somehow communicated to James or his attorney that the charges would be dismissed, and
that the prosecutors failure to disclose this communication to the defense was misconduct....
**
111. In re Martin
Supreme Court of California, In Bank. November 09, 1987 44 Cal.3d 1 744 P.2d 374 CRIM. 24182
Defendant was convicted of conspiracy to commit extortion, conspiracy to commit assault with deadly
weapon, murder in the second degree, and simple assault by the Superior Court, San Diego County,
Donald W. Smith, J., by jury verdict. Defendant appealed. Defendant subsequently filed petition for writ
of habeas corpus and motion to...
...The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the
right to present a defense, the right to present the defendants version of the facts as well as the prosecutions to
the jury so it may decide where the truth lies....
... Just as an accused has the right to confront the prosecutions witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense....
...) Indeed, as the Washington court held, the right of an accused to have compulsory process for obtaining
witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair
trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. ...
... In United States v. Blackwell (D.C.Cir.1982) 694 F.2d 1325, 13331334, the District of Columbia Circuit presented
the following selective survey: Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam)
(defense witness effectively driven off witness stand by remarks of trial judge regarding penalties for perjury); United
States v. Smith, 478 F.2d 976 (D.C.Cir.1973) (defense witness told by prosecutor that if he testified as indicated by
other testimony he could or would be prosecuted for carrying a concealed weapon, obstructing justice, and as an
accessory to murder); United States v. MacCloskey,...
**
116. People v. Burgener
Supreme Court of California January 27, 2003 29 Cal.4th 833 62 P.3d 1 S024642
CRIMINAL JUSTICE - Death Penalty. Court hearing motion to modify death penalty failed to exercise
independent judgment.
...[102][103]In this court, for the first time, defendant contends the substitution of Judge Heumann for Judge Mortland
violated his Sixth Amendment right to a jury trial, his Eighth Amendment right to be free from cruel and unusual
punishment, and his Fourteenth Amendment state-created liberty interest and right to due process....
...[31]Defendant now contends the trial courts failure to inform potential jurors of the circumstances that led this court
to reverse the verdict of death at the first penalty trial violated his Sixth and Fourteenth Amendment rights to an
impartial jury....
... Before a criminal defendant can establish a federal due process right to use the results of a polygraph
examination, it is necessary (although perhaps not sufficient) to offer proof that the technique has become generally
accepted in the scientific community....
... The court, referencing its earlier order under section 190.3, also expressed its belief that the district attorneys
question had been contemptuous and subsequently held the prosecutor in contempt....
**122. Netherton v. Parnell

United States District Court, W.D. Washington, at Seattle. December 19, 2014 Slip Copy 2014 WL 7240525
C13-1281-JCC-MAT
This matter comes before the Court on the petition of Lorraine Netherton for writ of habeas corpus,
challenging her conviction for second degree murder. (Dkt. No. 1.) The Honorable Mary Alice Theiler,
Chief United States Magistrate Judge, issued a Report and Recommendation (R & R) (Dkt. No. 42)
advising this Court to deny Nethertons...
...Fifth Ground: Petitioner was denied due process of law and her right to a fair trial guaranteed by the Sixth and
Fourteenth Amendments to the Constitution of the United States by the prosecutions failure to disclose evidence
regarding unscientific and unreliable testimony and methodology utilized by Washington State criminology expert
witness Evan Thompson, and the States reliance on Mr. Thompsons unscientific and baseless testimony on several
points in this case....
...The Ninth Circuit rejected the assertion of a constitutional right to a jury instructionseparate and apart from the
standard self-defense instruction already provideddirected towards a criminal defendants Second Amendment
right to bear arms....
...Seventh Ground: Petitioner was denied due process of law and the right to a fair trial guaranteed by the Sixth and
Fourteenth Amendments to the Constitution of the United States as a result of the prosecutors misconduct in
closing argument, in which he suggested that Petitioner was carrying forty rounds of deadly ammunition which was
enough to take out three juries....
...Sixth Ground: Petitioner was denied due process of law and the right to trial by an impartial jury guaranteed by
the Sixth and Fourteenth Amendments to the Constitution of the United States as a result of the prosecutors
misconduct in threatening and filing a baseless criminal charge against her because of her refusal to plead guilty,
which baseless charge was dismissed but improperly communicated to and by members of Petitioners jury,
prejudicing her....
1. All consulting relationships working as a consultant for third party

during his or her employment as a public official.
2. diviersion of campaign contributions for personal use.
3. (anti corruption investing & trial guide)Payments made by third parties
for the benefit of the defendant;
4. 4. Unusual Use of Cash
Evidence of various types of cash expenditures made during the charged
period may suggest that defendant
had an alternative cash source which, the government can argue, involved
the bribery/payoff/unlawful cash
generation scheme alleged in the indictment. Thus, evidence of frequent
cash deposits, the use of large bills
(currency), unusually large cash expenditures made to purchase clothing,
jewelry, cars, etc., is probative of the
defendants receipt of cash and, hence, participation in the charged
scheme.
The probative value of this type of evidence is enhanced, to the extent
that the government can show that the
defendant did not generate the cash for these expenditures through
legitimate means (cashing salary checks,
tax refund checks, dividend checks, etc., or writing checks for cash from
an account that appears to be
funded by legitimate sources).
Similarly, where the defendants checking account and credit card

slips reveal no expenditures for daily
incurred living expenses (food, clothing, entertainment, etc.), it can
be argued that the defendant spent his
cash bribes/payoffs on the incidental expenses that everyone incurs in
normal living. Also, where it can be
shown that outside of the alleged bribed period, the defendant would
normally charged gasoline, car repairs,
restaurant expenses, etc., but similar charges do not appear during
the indictment period, the government
may argue that the defendants spending habits reflect an alternate
cash source during the relevant period.
CONDUCTING THE FINANCIAL INVESTIGATION
In conducting an investigation designed to uncover financial evidence
of a defendants receipt of cash bribes,
payoffs, kickbacks, or otherwise unlawfully-derived money, **it is
important, if possible, to secure the
defendants tax returns for the period in which the alleged unlawful
conduct took place. If the defendant
made money in another country, it is possible that tax returns were
generated there. The returns should be
reviewed to determine the defendants income sources, deductions,
banks (identified via the listed interest
expense or interest income), and other financial information presented
on the return. Next, **the defendants
payroll checks should be subpoenaed and determinations should be made
as where these checks were cashed
or deposited. All records of the defendants financial transactions
and relationship with these financial
institutions should be subpoenaed as necessary. A standard attachment
should accompany every subpoena
issued to a financial institution asking for all records pertaining to
the defendant, the defendants spouse, or
anyone else whose financial affairs may be intertwined with the
defendant, that would reflect any type of a
financial relationship between the defendant (or family members) and
the bank. This should include records
of a checking account, savings account, certificates of deposit,
signature card, monthly statements and
correspondence, deposit slips, deposited items, cancelled checks, wire
transfers, cashiers checks, money
orders, travelers checks, withdrawal slips, and loan files (including
financial statements, credit reports, loan
applications, safe deposit information, trust accounts, records of
investment, documents relating to any credit
card or credit-extending account, and any other financial information
involving the defendant).
Bank information from all banks/financial institutions in the areas
where the defendant works, lives, or has a
vacation home should be subpoenaed. It may be that the defendant has
accounts at banks separate from
those where legitimate sources of income are deposited.
Copies of the defendants cancelled checks or the original cancelled
checks from the defendant should be
subpoenaed. These will provide leads to other financial institutions,
business ventures, brokerage houses,
travel agencies, credit card companies, girlfriends, boyfriends,

flower shops (obtaining messages indicating the
existence of a girlfriend or boyfriend), and stores and restaurants
frequented by the defendant.
Interviews should be conducted of proprietors of businesses, stores,
and restaurants suggested by the review
of the cancelled checks to determine the extent of any expenditures
made by the defendant, cash or
otherwise.
The payees of checks should be interviewed to determine the extent of
their financial relationship with the
defendant and to preclude any later fabricated testimony that there
were nontaxable sources of funds for the
defendant (cashed checks for the defendant, made cash gifts or loans
to the defendant, etc.).
NEPAL ANTICORRUPTION INVESTIGATION AND TRIAL GUIDE 35
It is important to secure copies of the defendants deposit slips, as

they will reflect if the deposit was made in
cash and may reflect teller notations as to the types of bills used by
the defendant when making cash deposits.
The financial statements contained in loan files (that list the
defendants assets, including cash on hand, and
liabilities) will be helpful in establishing a starting point and in
developing leads to other financial
information. A review of credit reports will reflect all instances in
which a defendant applied for credit cards
(banks, charge companies, car dealers, etc.). Records should be
subpoenaed from these entities and it should
then be determined whether the defendant paid his credit card bills in
cash. The underlying credit card slips
will be useful to determine where the charges were incurred.
If the credit card slips reflect the names of rental car companies,
the underlying rental agreement should be
subpoenaed; this will reflect where the defendant stayed while
traveling. Hotel records should also be
subpoenaed to determine the manner in which the defendant paid the
bill and any local phone calls made by
the defendant (these could lead to other expenditures).
Subpoenaing the defendants passport will reflect foreign entry and
exit records and relevant Customs Service
records (currency and monetary instrument reports that are required
whenever an individual transports
currency over a certain amount in or out of the country).
If the defendant is a member of any professional organizations or has
access to any campaign funds, records
of this relationship should be secured in order to prevent and/or
rebut any subsequent claim that the
defendant obtained cash from these sources as reimbursement for
personal expense and used this cash during
the charged period.
Any statements of economic interest or other disclosure statements

that the public official is required to file
with the state or any public regulatory agency regarding loans, gifts,
lists of creditors, etc. should be obtained.
This will commit the defendant to a financial position and limit their
ability to provide bogus nontaxable
sources of cash later at trial. Reviews should be made of public
probate records (inheritances), insurance
records (loans against insurance policies, insurance settlements), and
any other leads to nontaxable sources.
Defendants telephone records should be subpoenaed disclosing calls (toll records)
that involve business
ventures, banks, and, where available, travel agencies, brokerage firms, real estate
offices, and financial
institutions.
Government records concerning all vehicles registered to the defendant or
members of his family should be
reviewed to determine the vehicles owned by the defendant and the dealership
that sold the vehicles to the
defendant. The dealerships records should be subpoenaed to ascertain the manner
in which the defendant
purchased the car.
(from investing_prosec_corrup_fin_investig.pdf) Use of information from
electronic means. On many occasions the use of e-mails (official and
private) and other forms of electronic communication was mentioned as an
increasingly important source of information. In a corruption case in the
United States an e-mail exchange contained crucial information proving
corruption facts that were otherwise denied by defendants. In the case
investigated in Lithuania information received through electronic means
was also highlighted as very useful.
Bribery and ways to misuse public money become more sophisticated. The
seminar showed a great variety of forms of bribery and ways to misuse
public money. In discussed cases officials received bribes or misused
public money in a variety of forms, including expensive watches, an
airplane, computers, weapons, a prescription for narcotics, business class
plane tickets, expensive cars or personal restaurant charges, bar bills,
dry cleaning. While money or material benefits remain the most common
gain, non-financial, non-material and indirect benefits become
increasingly common. For instance, officials received as bribes gift cards
in shops and access to schools for their children, no-return loans, loans
to relatives, operations with financial instruments, shares to affiliated
persons, possibility to purchase various goods at reduced prices, rights
(to property, cars, etc.), promotion at work. Various techniques are often
used to hide bribes and illegal incomes, such as division of contracts in
official and unofficial parts, exchange of services or use of black
books by companies. A rather typical example was mentioned by Estonia
were a public official provided a pubic contract and got in exchange a
reduction in purchasing of building materials by his wife.
From Searchlight on kickbacks and bribery in local government

What are typical bribes?
Interest in a profit making enterprises
H. Understanding the Process of Corruption
It should be helpful to the investigators to understand the normal process
of corruption, and through
which the investigators would be able to know where to obtain evidence to
prove the corrupt act. Generally,
a corrupt transaction may include the following steps:
1. Softening-up Process
It is quite unlikely that a government servant would be corrupt from his
or her first day in office. It is
also unlikely that any potential bribe-offerer would approach any
government servant to offer a bribe without
building up a good relationship with him or her first. Thus there is
always a softening up process when the
bribe-offerer builds up a social relationship with the government servant,
for example, inviting him or her
to dinner and karaoke, etc. Thus the investigator should also attempt to
discover evidence to prove that the
government servant had accepted entertainment prior to the actual corrupt
transaction.
2. Soliciting/Offering of Bribe
When the time is ripe, the bribe-offerer would propose to seek favour from
the government servant and
in return offer a bribe to him or her. The investigator should attempt to
prove when and where this had
taken place.
3. Source of Bribe
When there is agreement for the bribe, the bribe-offerer would have to
withdraw money for the payment.
The investigator should attempt to locate the source of the funds and
whether there was any third person
who assisted in handling the bribe payment.
4. Payment of Bribe
The bribe would then be paid. The investigator should attempt to find out
where, when and how the
payment was effected.
5. Disposal of Bribe
On receipt of the bribe, the receiver would have to dispose the cash. The
investigator should try to locate
how the bribe was disposed, either by spending or depositing into a bank.
6. Abuse of Power
To prove a corruption offence, you need to prove the corrupt act or the
abuse of position in return for
the bribe. The investigator needs to identify the documents or other means
proving his or her abuse of
authority.
The task of the investigator is to collect sufficient evidence to prove
the above process. He or she needs
to prove when, where, who, what, how and why on every

incidence, if possible.
However this should not be the end of the investigation. It is rare that
corruption is a single event. A
corrupt government servant would likely take bribes on more than one
occasion. A bribe-offerer would likely
offer bribes on more than one occasion and to more than one corrupt
official. Hence it is important that the
investigator should seek to look into the bottom of the case, to unearth
all the corrupt offenders connected
with the case.
U.S. v. Zichettello, 208 F.3d 72 (2nd Cir.(N.Y.) Mar 30, 2000)
Law firm attorney giving bribes

U.S. v. Frega, 179 F.3d 793, 799, 99 Cal. Daily Op. Serv. 4392, 1999 Daily Journal D.A.R. 5643 (9th Cir.
(Cal.), Jun 08, 1999)
Following jury trial, defendants, including attorney and state court judges, were convicted in the United States
District Court for the Southern District of California, Edward Rafeedie, J., of **mail fraud and **conspiring to
conduct affairs of state court through pattern of racketeering activity in violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO). **Defendant attorney was also convicted of conducting affairs of court through
pattern of racketeering activity in violation of RICO. Defendants appealed, and government cross-appealed from
sentences. The Court of Appeals, Reinhardt and Rymer, Circuit Judges, held that: (1) alleged prosecutorial conflict
of interest did not violate due process; (2) prosecution did not exceed bounds of federal authority under commerce
clause; (3) defendants did not establish vindictive prosecution based on prior dismissal of bribery charge; (4) mail
fraud statute was not vague; (5) mail fraud convictions were not tainted by variance or instructional error; (6)
indictment charging substantive RICO offense was valid; (7) predicate acts of bribery were established by sufficient
evidence; (8) instructions on substantive RICO charge were proper; (9) instruction given in response to jury inquiry
on RICO conspiracy charge was misleading and erroneous; (10) defendant attorney's sentence did not have to be
enhanced for his alleged leadership role; and (11) court properly determined value of improper benefit accrued and
amount of benefit defendant attorney intended or expected to receive.
Reversed in part, affirmed in part, and remanded.
Rymer, Circuit Judge, concurred in part, dissented in part, and filed opinion.
[28] Bribery 63
1(2)
63 Bribery
63k1 Nature and Elements of Offenses
63k1(2) k. Bribery of Jurors and Particular Classes of Officers. Most Cited Cases
**Defendant's payments to family members of judge could constitute bribe, under California law, regardless of
whether judge was made aware of payment, as critical finding related to defendant's intent in making payment, not
whether judge was in fact aware of or influenced by the payment.
[30] Bribery 63
1(2)
63 Bribery
63k1(2) k. Bribery of Jurors and Particular Classes of Officers. Most Cited Cases
**Defendant attorney's alleged payments of $1,000 bill for rental car used by judge's daughter, payment of $1,500
bill for repairs to vehicle owned by daughter, and payment of $5,250 towards purchase of automobile for another
judge constituted predicate acts of bribery, under California law, for purpose of prosecution for substantive violation
of Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C.A. 1962(c).
This case involves allegations of numerous bribes paid by Patrick Frega, a San Diego attorney, to three then
Superior Court judges, Dennis Adams, James Malkus, and Michael Greer. Over a period of twelve years, Frega,
together with Jim Williams, the owner of a San Diego car dealership, purportedly gave more than $100,000 in
payments and benefits-ranging from **automobiles, **car repairs, **money orders, **an apartment, **health club
memberships, and **a queen-sized bed-to the judges or members of their families. In exchange, Frega allegedly
sought and received an unfair advantage in the cases in which he was involved in the Superior Court.
In June of 1996, after Greer became a witness for the prosecution, a grand jury returned a twenty-one count
indictment against Frega, Malkus and Adams.FN1 The Indictment charged all three with RICO conspiracy in violation
of 18 U.S.C. 1962(d) (Count One). This charge was based on allegations that the three defendants had
**conspired to conduct the affairs *799 of the Superior Court through a pattern of racketeering activity consisting of
multiple acts of **bribery in violation of Sections 92 and 93 of the California Penal Code and **extortion in
violation of 18 U.S.C. 1951. Frega, Adams and Malkus were also charged with **eighteen counts of mail fraud in
violation of 18 U.S.C. 1341 and 1346. The mail fraud counts specifically related to mailings done in furtherance
of the defendants' alleged scheme to defraud the people of the State of California by depriving them of their right to
the honest services of judges of the Superior Court. **Most of the mailings listed in the Indictment related to an
investigation of the defendants' actions conducted by the California Commission on Judicial Performance and
involved documents sent to the Commission by Frega and the judges.FN2 **A few related to proceedings in the
Superior Court. **Additionally, the grand jury charged Frega with a substantive RICO offense in violation of 18
U.S.C. 1962(c), and with forfeiture allegations pursuant to 18 U.S.C. 1963. The substantive RICO charge alleged
that Frega not only conspired to conduct the affairs of the Superior Court through his bribes, as charged in Count
One, but that he in fact succeeded in doing so.

That RICO embodies a fundamental federal policy can scarcely be disputed.... RICO represents a fundamental
choice by Congress to employ the heavy artillery of federal law against a variety of organized criminal endeavors
involving security fraud, **wire fraud, and **bribery.
Govett Am. Endeavor Fund Ltd. v. Trueger, 112 F.3d 1017, 1021-22 (9th Cir.1997). Moreover, we have often
affirmed RICO convictions involving bribery of state officials, see, e.g., Jackson, 72 F.3d at 1373 (bribery of state
senator); United States v. Dischner, 974 F.2d 1502, 1506-08 (9th Cir.1992) (bribery of a mayor), as have other
circuits, see, e.g., United States v. Griffith, 85 F.3d 284, 288 (7th Cir.), cert. denied,519 U.S. 909, 117 S.Ct. 272,
136 L.Ed.2d 195 (1996) ([b]ribery of local ... officials is just the sort of corruption connoted by the term
racketeering ), and the United States Supreme Court, see Salinas v. United States, 522 U.S. 52, ---- - ----, 118
S.Ct. 469, 472-73, 139 L.Ed.2d 352 (1997) (upholding RICO conspiracy convictions of deputy who accepted
bribes from prisoners in county jail).
U.S. v. Frega, 933 F.Supp. 1536, 1538, (S.D.Cal.,Jul 09, 1996)
According to the indictment, Malkus presided over at least five cases in which Frega appeared. FN4 Of these cases,
two resulted in $4 million verdicts for Frega's clients, and another in a $2 million settlement. Over the same period,
**Frega allegedly lavished on Malkus such gifts as a $612 health club membership, $9,900 in salary payments to
Malkus' son for employment arranged by Frega with a former client, and over $3,500 in car repairs.
FN4. It is not clear from the indictment whether Malkus actually had complete control of these cases, or
whether he presided over them for more limited purposes, such as a particular motion.
Similarly, Adams presided over or handled portions of at least seven cases in which Frega appeared. Of these, one
resulted in a $5 million non-jury verdict in favor of Frega's client. The indictment does not disclose the results of the
other cases. ****Over the same period, Frega supposedly paid over $1,700 for a professional writer to ghostwrite a
novel for Adams, gave Adams a $2,000 computer, arranged for a former client to provide or contributed himself
over $8,000 in car services to Adams and his family, arranged for the former client to sell a car to Adams at $1,000
below cost, contributed $4,000 and $2,200 toward the costs of cars for Adams' daughter and father respectively, and
paid $614 for a new bed for Adams.

A. Public Corruption and the Reach of 18 U.S.C. 1346
The first argument raised by the defendants is that 1341, 1346 do not reach the intangible right of honest public
services. This argument is drawn entirely from the recent Fifth Circuit case of United States v. Brumley, 79 F.3d
1430 (5th Cir.1996), and so the Court will explain the analysis of that case in some detail.
****In Brumley, the defendant was a state workers' compensation official who accepted over $86,000 in loans from
a local attorney between 1987 and 1992, with the understanding that the loans would never be repaid. During that
same time, the defendant attempted to derail a state workers' compensation agency investigation of a local attorney.
The defendant first urged the agency to reconsider its decision to investigate; when that failed, he helped the
attorney alter subpoenaed documents. Based on this conduct, the defendant was convicted of three counts of wire
fraud, three counts of money laundering, and one count of conspiracy to commit mail and wire fraud. 79 F.3d at
1432-33
U.S. v. Brumley, 116 F.3d 728 (5th Cir.(Tex.),Jun 18, 1997)
Following bench trial before the United States District Court for the Eastern District of Texas, Richard A.
Schell, Chief Judge, defendant was convicted of **wire fraud, **money laundering, and one count of conspiracy to
commit mail fraud and wire fraud, as well as ****making false financial statements to financial institution. On
rehearing, superseding and withdrawing opinion at 59 F.3d 517, the Court of Appeals, 79 F.3d 1430, vacated wire
fraud, conspiracy, and money laundering convictions. On grant of government's petition for rehearing en banc, the
Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that: (1) government entity could be victim of
scheme to deprive another of intangible right of honest services; (2) citizens as body politic could be victim of
scheme to deprive another of intangible right of honest services; (3) honest services referred to services which
defendant state official owed to state employer under state law; and (4) defendant, who was employed by state
workers' compensation board and received payments from attorneys representing claimants who appeared before
him, engaged in scheme to deprive another of intangible right of honest services, for purpose of wire fraud statute.
Affirmed.
E. Grady Jolly and DeMoss, Circuit Judges, filed dissenting opinion in which Jerry E. Smith, Circuit Judge,
joined.
[10] Telecommunications 372
1014(10)
372 Telecommunications
372III Telephones
372III(I) Offenses and Prosecutions
372k1011 Offenses
372k1014 Wire Fraud
372k1014(10) k. Honest services fraud. Most Cited Cases
(Formerly 372k362)
Conduct of state official employed by state workers' compensation board, in receiving payments from attorney
representing claimants who appeared before official, constituted scheme to deprive another of intangible right of
honest services, for purpose of wire fraud statute. 18 U.S.C.A. 1343, 1346.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Michael Bryant Brumley was convicted in a bench trial of conspiring to defraud the citizens of the State of
Texas of honest services by use of interstate wire communications and the United States mail in violation of 18
U.S.C. 371, three counts of wire fraud in violation of 18 U.S.C. 1343, three counts of money laundering in
violation of 18 U.S.C. 1956, and two counts of making a false statement to a financial institution in violation of 18
U.S.C. 1014. Brumley does not appeal his conviction on the last two counts of defrauding a financial institution,
and they are not before us.

**Brumley never seemed to be able to live within his income. As early as 1982, he began to solicit loans from
lawyers representing claimants and their assistance in obtaining loans from lending institutions. In 1985 and 1986,
while he was conducting prehearing conferences in cases in Lufkin, Texas, he charged and never repaid several
hundred dollars to the account of a claimant's counsel at the local country club. By 1988 Brumley had borrowed
money from at least eight lawyers and struck up a relationship with John M. Cely, a Lufkin attorney with a
substantial workers' compensation practice. Cely and persons employed by his law firm made frequent appearances
before Brumley in prehearing conferences. They began a process whereby Cely would cause wire transfers to be
made from the Western Union office in Lufkin to Brumley at various locations in Texas. These wire transfers were
accomplished electronically through a Western Union facility located outside of Texas. From 1987 to May of 1992,
Cely made some seventy wire transfers to Brumley totaling approximately $86,730. In all, Brumley borrowed
some $112,156 from eleven lawyers, including Cely. None of this sum was ever repaid.
Anderson v. Keffer 2010 Wl 4623831

Skilling, Supreme Court held that 18 U.S.C. 1346(the honest services fraud
statute) crimihnalizes only bribery and kickback schemes, ie.,
fraudulently depriving another of ones honest services by accepting
bribes or kickbacks. Skilling, 130 S.Ct. at 2993
U.S. v. Dischner, 974 F.2d 1502, 1521, (9th Cir.(Alaska) Apr 03, 1992)
Defendants were convicted in the United States District Court for the District of Alaska, James M. Fitzgerald, J.,
of violations of Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to violate RICO, extortion,
mail and wire fraud, and violation of Travel Act. Defendants appealed. The Court of Appeals, Rymer, Circuit Judge,
held that: (1) RICO was not unconstitutionally vague as applied to defendants; (2) evidence sustained convictions;
(3) Hobbs Act jury instructions were sufficient; and (4) defendants were not entitled to change of venue.
Affirmed.
Petition for rehearing denied.
Opinion, 960 F.2d 870, superseded.
[5] Racketeer Influenced and Corrupt Organizations 319H
319H Racketeer Influenced and Corrupt Organizations
319HI Federal Regulation
319HI(A) In General
319Hk24 Pattern of Activity
28
319Hk28 k. Continuity or Relatedness; Ongoing Activity. Most Cited Cases

Racketeer Influenced and Corrupt Organizations 319H
29

319HI(A) In General
319Hk24 Pattern of Activity
319Hk29 k. Time and Duration. Most Cited Cases
**Evidence that defendants repeatedly solicited and accepted bribes in connection with public matters and
received substantial kickbacks from companies for steering public works contracts in their direction satisfied
Racketeer Influenced and Corrupt Organizations Act's (RICO) requirement of pattern of racketeering activity;
given consistency of methods, purposes, results, and participants involved, predicate acts were sufficiently related,
acts were committed over substantial period of time and demonstrated threat of continued racketeering, and because
of what defendants said and did, various contractors were led to believe that they had to keep paying kickbacks to
continue to receive borough's business. 18 U.S.C.A. 1961-1963.
[6] Racketeer Influenced and Corrupt Organizations 319H

319HI(A) In General
319Hk2 k. Constitutional and Statutory Provisions. Most Cited Cases
Enterprise requirement of Racketeer Influenced and Corrupt Organizations Act (RICO) was not
unconstitutionally vague as applied to conduct of defendant borough officials who solicited and accepted bribes in
connection with public matters and received substantial kickbacks from companies for steering public works
contracts in their direction; statute accurately warned defendants that their association with each other and office of
mayor and Department of Public Works constituted a RICO enterprise. 18 U.S.C.A. 1961(4).
[26] Commerce 83
82.10
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(J) Offenses and Prosecutions
83k82.5 Federal Offenses and Prosecutions
83k82.10 k. Offenses Involving Activity Unlawful Under State Law. Most Cited Cases
Evidence sustained defendant's conviction for aiding and abetting Travel Act violations; codefendant travelled
from Alaska to Seattle to collect kickback from company for continuing business in Alaska borough and company
made payment funnelling it to codefendant's bank account and codefendant wrote check to defendant for half of
payment on same day. 18 U.S.C.A. 1952.
U.S. v. Jackson, 72 F.3d 1370, 1374, (9th Cir.(Cal.) Dec 15, 1995)
Money laundering of bribes through campaign committees and company fronts

C. Racketeering Act 6 and Counts II through X-Mail Fraud and Money Laundering
**Jackson and Robbins sought to avoid the reporting requirements attached to campaign funds. They enlisted
the aid of former senator Paul Carpenter, then serving on the Board of Equalization. Carpenter offered to let
Jackson's clients contribute to his campaign committee and then have his campaign committee make payments at
Robbins' direction.
Jackson, Robbins, and Carpenter worked out a scheme whereby Jackson had his clients contribute to Carpenter ,
who, as a member of the Board of Equalization, was relatively immune from criticism for accepting large donations
from insurance companies. Carpenter, after taking his cut, would then write checks and mail them to the Goddard
Company, ostensibly as compensation for public relations work performed by the Goddard Company. In fact,
Jennifer Goddard of the Goddard Co. was a friend of Robbins, did no work for Carpenter, and would merely issue a
false invoice to Carpenter in return for the payments. Carpenter carried the lie to the California Secretary of State,
mailing mandatory reports characterizing these expenditures of campaign funds as payments for professional
services. **After taking her cut, Jennifer Goddard would either pass the money on to Robbins directly or spend it on
Robbins' personal expenses as he directed.
In all, Carpenter received over $84,000 in contributions from Jackson's clients, at Jackson's request , and passed
$78,500 on to Goddard, **Robbins' front. Checks mailed from Jackson's clients to Carpenter and the false campaign
reports mailed from Carpenter to the Secretary of State supported the jury verdict which convicted Jackson of the
mail fraud-related offenses. The deposit of checks paid by Carpenter to the Goddard Co. supported the verdict which
convicted Jackson of racketeering predicated on money laundering.

A. Background: The Indictment
In general, the indictment described the scheme through which Jackson would channel money from his
insurance clients to Robbins. Jackson would solicit donations from his insurance clients to Carpenter's campaign
fund, deceiving his clients both as to the real beneficiary of their donations, and Carpenter's political status. (Jackson
did not tell his clients that Carpenter was no longer in the Senate and currently served on the Board of Equalization
where he would have little, if any, voice in insurance policy.) After taking his cut of the action, Carpenter would
issue checks to Goddard Co. and report these campaign fund expenditures to the Secretary of State as public
relations expenses. In fact, Goddard Co. performed no work for Carpenter, **other than issuing phony invoices.
Jennifer Goddard of Goddard Co. would then either pass the cash on to Robbins directly or spend the money as
Robbins directed, after, of course, taking her cut.
Count I, the RICO count, Racketeering Act 6 charges Jackson with mail fraud, 18 U.S.C. 1341 and 2, and
money laundering or aiding and abetting money laundering, 18 U.S.C. 2 and 1956(a)(1)(A)(i) and (B)(i).
Racketeering Act 6 charges six specific mailings, each a check payable to Carpenter from one of Jackson's insurance
clients. Under the money laundering charge, the indictment alleges thirty acts, each a check payable to the Goddard
Co. from Carpenter's account. Any single instance of mail fraud or money laundering alone could constitute
Racketeering Act 6.
Count II charges Jackson and Carpenter with conspiracy to commit mail fraud and money laundering for their
roles in the same scheme to pass donations from insurance companies through Carpenter and Goddard to Robbins as
a bribe. This count lists Jackson's solicitations of various insurance companies to donate to Carpenter as Jackson's
overt acts in furtherance of the conspiracy. The indictment lists Carpenter's overt acts as the numerous checks
written by Carpenter to the Goddard Co., along with Carpenter's campaign statements mailed to the Secretary of
State which mischaracterize these expenditures as payments for professional services.
Counts III through X charge Jackson with specific acts of mail fraud. Counts III and IV are based on the mailing
of two checks from Jackson's insurance clients to Carpenter. (These checks are also listed as specific acts of mail
fraud in Racketeering Act 6 of Count I.) Counts V through X are based on the Carpenter campaign reports mailed to
the Secretary of State.
U.S. v. Eisen, 974 F.2d 246, 36 Fed. R. Evid. Serv. 580 (2nd Cir.(N.Y.), Aug 17, 1992)
Investigator for law firm visited witness at home and offered her money to
testify falsely
U.S. v. Rybicki 354 F.3d 124 139-40 (2nd cir. 2003) collecting bribery and
kickback cases.
Hub City Solid Waste Services, Inc. v. City of Compton, 186 Cal.App.4th 1114, 112 Cal.Rptr.3d 647
Bribery by campaign contributions

U.S. v. Mokol, 957 F.2d 1410, 34 Fed. R. Evid. Serv. 1438 (7th Cir.(Ind.), Mar 18, 1992)
Bribery of buyer by kickbacks

U.S. v. Kaplan, 886 F.2d 536, 58 USLW 2258 (2nd Cir.(N.Y.), Oct 03, 1989)
Bribery by companies to launder bribes to public officials and false

services and invoices
U.S. v. Traitz, 871 F.2d 368, 130 L.R.R.M. (BNA) 3035, 111 Lab.Cas. P 11,094, 27 Fed. R. Evid. Serv. 1311
(3rd Cir.(Pa.), Mar 22, 1989)
Cash payments to public officials

U.S. v. Hocking, 860 F.2d 769 (7th Cir.(Ill.), Oct 14, 1988)
Cash payments
U.S. v. Friedman, 854 F.2d 535, 542, 26 Fed. R. Evid. Serv. 444 (2nd Cir.(N.Y.),Jun 14, 1988)
Bribery by investment in a parcel of commercial real estate

Defendants were convicted in the United States District Court for the Southern District of New York, Whitman
Knapp, J., of conspiracy to operate city parking violations bureau as racketeering enterprise, racketeering, and mail
fraud, and one defendant was also convicted of perjury. The Court of Appeals, Winter, Circuit Judge, held that: (1)
evidence supported racketeering, conspiracy, and perjury convictions connected with bribery of public officials ; (2)
evidence established single conspiracy to operate bureau as racketeering enterprise; and (3) dismissal of mail fraud
counts that were based on intangible rights theory and Government's assumed leaks of grand jury proceedings to
press did not require reversal.
Vacated in part and affirmed.
See also, 635 F.Supp. 782, 636 F.Supp. 462, 638 F.Supp. 816.
**Lazar was charged in three racketeering acts (Nos. One, Two and Three) with having bribed Manes and
Lindenauer on behalf of two PVB contractors, Datacom and Miller & Rothman, and in one racketeering act (No.
Four) **with bribing Shafran by providing him with the opportunity to invest in a parcel of commercial real estate,
the Candler Building, on behalf of a PVB contractor, Datacom
bribery by investment in a business, or having stock in a corporation

owned by the briber.
**Under an indictment charging an officer of a national bank with embezzlement of its funds by causing money of
the bank to be paid to persons known by him to be insolvent, for the purpose of bribery, and with intent to defraud
the bank,--such payment being made under the guise of a loan, for which such persons executed their note to the
bank,--the insolvency of such persons is an important consideration, going to the question of intent, and an
instruction which, in effect, tells the jury that the question of their insolvency may be ignored, is misleading.
McKnight v. U.S., C.C.A.6 (Ky.) 1902, 115 F. 972, 54 C.C.A. 358. Banks And Banking
257(4)
U.S. v. Campbell, 684 F.2d 141, 11 Fed. R. Evid. Serv. 939 (D.C.Cir., Aug 03, 1982)
Applying 18 U.S.C. 201(g)

In cases in which jury found corporation guilty of giving illegal gratuity and found judge guilty of receiving
illegal gratuity, appeals were taken from the United States District Court for the District of Columbia, Thomas A.
Flannery, J. The Court of Appeals, Mikva, Circuit Judge, held that: (1) in view of failure to make contemporaneous
objection, reversal of convictions was not required because of jury instructions or because of rulings upon evidence;
(2) jury's behavior in its deliberations did not justify overturning verdict; and (3) evidence sustained the convictions.
Affirmed.
[1] Bribery 63
11
63 Bribery
63k8 Evidence
63k11 k. Weight and Sufficiency. Most Cited Cases
In prosecution **wherein corporation was found guilty of giving illegal gratuity and judge was found guilty of
receiving gratuity, evidence permitted jury to find that $60 offered by judge to movers was intended as tip rather
than as payment for value of services given and **that judge knew movers' assistance was gratuity rendered for or
because of his official acts. 18 U.S.C.A. 201(f, g).
[6] Bribery 63
1(1)
63 Bribery
**Payments to public official for acts that would have been performed in any event, whether before or after
those acts have occurred, are probably illegal gratuities rather than bribes, depending upon controlling nature of
defendant's intent, but all bribes need not inevitably be paid prior to official act in question, and in certain situations
bribe will not actually be conveyed until act is done. 18 U.S.C.A. 201(f, g).
[7] Bribery 63
1(1)
63 Bribery
Criminal Law 110
1038.1(4)
110 Criminal Law

110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1038 Instructions
110k1038.1 Objections in General
110k1038.1(3) Particular Instructions
110k1038.1(4) k. Elements of Offense and Defenses. Most Cited Cases
Since bribe may be conveyed after official act has been performed, fact that indictment charged that first
payment was made to judge in 1973 did not immunize defendants' actions prior to that date, and where possible
distinction between bribery and illegal gratuities apparently did not strike defense counsel as anything significant at
time instructions were requested, it was not plain error for trial court, in context of trial as a whole, to share such
view. 18 U.S.C.A. 201(f, g).
[8] Bribery 63
14
63 Bribery
63k12 Trial
63k14 k. Instructions. Most Cited Cases
It was more than sufficient, in case wherein there was no problem of distinguishing illegal gratuities from
legitimate campaign contributions to elected officials, for trial court to require that alleged gratuities be given and
received knowingly and willfully and for or because of official acts, and, in context of trial and in light of failure of
defense counsel to seek more specific instruction, jury had clear understanding of distinctions among bribery, illegal
gratuities and innocence. 18 U.S.C.A. 201(f, g).
Before TAMM, MIKVA and GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge MIKVA.
**370 *144 MIKVA, Circuit Judge:
The two cases consolidated here involve appeals from practically every facet of a criminal trial in the district
court.[FN1] In March 1981, after six weeks of trial and four days of deliberation, the jury found **Excavation
Construction, Inc. (ECI) guilty of giving an illegal gratuity in violation of 18 U.S.C. s 201(f). **The jury also found
Judge Robert Campbell guilty of receiving an illegal gratuity in violation of 18 U.S.C. s 201(g). The trial court
denied the defendants' post-verdict motions for judgments of acquittal, and imposed sentence. Despite the range and
importance of the questions raised by appellants, we affirm.
FN1. On July 16, 1982, we vacated an earlier order consolidating these cases with United States v. Larry
Campbell, No. 81-1757, an appeal taken by the government from an order of the trial court in this trial
entering judgment of acquittal for a third defendant (not related to Judge Campbell) notwithstanding the
jury's verdict.
I. Background
ECI was formed to engage in trucking and construction work. In 1974, when the company obtained three
contracts for construction of Metro subway stations, ECI maintained a fleet of 80-85 dumptrucks to conduct dirthauling operations. These trucks were subject to the vehicle weight restrictions of the District of Columbia . They
could carry a maximum load of 44,000 pounds unless they displayed special use permits, costing $680 apiece, that
raised the limit to 65,900 pounds.
ECI purchased 112 special use permits for the year ending June 1974. It purchased only 60 permits for the year
ending June 1975, and no permits at all for the next two years. As a result, ECI received hundreds of traffic tickets
charging weight violations. These tickets were handled erratically by the Superior Court.[FN2] A number of judges
(including some who later testified for the defense) dismissed the tickets or imposed only token fines. ****One of
these judges was Robert Campbell, who had been appointed to the Superior Court bench in 1972. In over 90 percent
of the 1,138 tickets involving ECI that were considered by Judge Campbell, the judge suspended sentence.[FN3]
FN2. A defense analysis of Superior Court dispositions of overweight tickets showed that Judge Campbell
was not alone in imposing token fines or suspended sentences. Tr. 5326-30. On some occasions, the local
government declined to prosecute these violations altogether. Tr. 4994-5020, 5252-54. The defense also
suggested that the District of Columbia was not speaking with one voice on the desirability of weight
laws. See Tr. 5000 (Corporation Counsel's staff suspected police were not enforcing weight laws fairly); Tr.
4592-93 (judge testified that he always suspended sentence because the laws were unevenly enforced and
because their purpose was unclear). A witness from the Department of Transportation produced records
suggesting that most of the large trucking companies in the District of Columbia had stopped buying the
special use permits or had sharply reduced their purchases by 1975. Tr. 269-87.
FN3. Tr. 3262-3343. The government's evidence also showed that ECI frequently arranged to have its
tickets brought before Judge Campbell and that on at least one occasion Judge Campbell reviewed and
dismissed a bloc of 95 ECI tickets even though he was not assigned to traffic court that day. Tr. 3317-18,
4042. The evidence also suggested that Judge Campbell had been in serious financial trouble for many
years. Tr. 2572-2602, 3069-89.
**ECI's assistant general manager, Robert Jenkins, had responsibility for supervision of the ECI truck fleet .
Jenkins was called before a grand jury in 1978, and at that time testified that he had never delivered anything of
value to Judge Campbell. In July 1978, Jenkins discussed his testimony with another ECI employee, **Walter
Junior Jones, and Jones gave similar testimony at his own grand jury appearance. In August 1978, however, the
Washington Post reported that ECI employees had assisted in the move of Judge Campbell's household furnishings
under the direction of Jones and Jenkins. Jones was then offered immunity in exchange for testimony against
Jenkins, and Jenkins was ultimately indicted and convicted of perjury. We affirmed that conviction in United States
v. Jenkins, No. 79-2559 (D.C.Cir. Sept. 19, 1980).
In August 1980, the grand jury charged ECI and Judge Campbell in a four-count indictment, alleging
conspiracies in violation*145 **371 of 18 U.S.C. s 1962(d) (RICO) and 18 U.S.C. s 371, and **the giving and
receiving of bribes in violation of 18 U.S.C. s 201(b) and **(c). The indictment charged 16 separate instances of
bribery.****Twelve of these were payments of cash, starting as early as 1966 when Campbell was an Assistant
Corporation Counsel. **The other four instances were gifts to Judge Campbell of three loads of topsoil, a garden
cultivator, several cases of liquor, and the move of his household belongings.
Problems beset the prosecution almost immediately; even after a superseding indictment was filed, the
government acted repeatedly to narrow the charges. [FN4] By the time the case went to the jury, the bribery scheme
alleged in Count III of the indictment was confined to the move of household goods in August 1975 and five
payments of cash between January 1976 and February 1977. At the conclusion of testimony, however, the trial court
also agreed to instruct the jury of the lesser included offenses of giving and receiving an illegal gratuity in the third
and fourth counts of the indictment.[FN5]

The jury did find each defendant guilty in connection with the 1975 move of the household goods-ECI for having
given an illegal gratuity in the form of that move, and Judge Campbell for having received that gratuity. In June
1981, the trial court fined ECI $10,000, the maximum penalty authorized under the statute, and sentenced Judge
Campbell to serve a term of imprisonment of three months to two years.
And the court statd at p. 146,

*146 **372 Judge Campbell's defense sought to negate the existence of criminal intent. It emphasized that
Judge Campbell gave $60 to the three ECI employees who assisted during the five-hour move, and that Judge
Campbell sought to pay their supervisor, Jones, as well. When Jones refused to take any money for his own time or
to let Judge Campbell pay for a truck that Jones had already rented, Judge Campbell was confronted, not of his own
volition or choice, with a gratuity ... of such a nature that he could not give it back. Brief for Appellant Campbell at
12.
Although this version of events could be believed, there was clearly sufficient evidence from which the jury
could conclude beyond a reasonable doubt that it was not so. There was credible evidence to suggest that Jenkins
arranged the move pursuant to a meeting with Judge Campbell, that the $60 was intended as a tip rather than as
payment for the value of the services given, and that Judge Campbell knew the movers' assistance was a gratuity
rendered for or because of his official acts.[FN6] It was for the jury to resolve the question of Judge Campbell's
intent based on this evidence, and we find no occasion to disturb its verdict.
FN6. See note 3 supra. **ECI, through Jenkins, had paid $48 to rent the truck used during the move, and
paid Jones and the three other employees their regular salaries for the day. A prosecution witness who
operated a moving service in the evenings after his employment as a D.C. policeman estimated the valu of
the move at between $136 and $300, based on the exteriors of the houses involved. Finally, although
Jenkins could not remember whether Judge Campbell had asked him for help during the move, Tr. 1501,
Jenkins testified that the subject came up while Jenkins was at Judge Campbell's house, Tr. 934, and that it
was not unusual for Judge Campbell to telephone when he needed cash or other services. Tr. 1055-63,
1064-71, 1081-83.
Westnext_search_bribery_campaign_contribution_offered_in_exchange_for_offi
cial_acts_ca_fed_all_98_results.doc
**11. U.S. v. Terry
United States Court of Appeals, Sixth Circuit. February 14, 2013 707 F.3d 607 2013 WL 535754 11-4130
CRIMINAL JUSTICE - Bribery. Judges conviction for accepting bribe was supported by sufficient
evidence that judge agreed with campaign donor to fix cases.
... Without anything more, a jury could not reasonably infer that a campaign contribution is a bribe solely because a
public official accepts a contribution and later takes an action that benefits a donor....
... But when a public official acts as a donors marionetteby deciding a case to a donors benefit immediately after
the donor asks him to and without reading anything about the casea jury can reject legitimate explanations for a
contribution and infer that it flowed from a bribery agreement....
... Here, the jury rejected any legitimate explanation for Russos contributions in the face of strong circumstantial
evidence that Terry and Russo had a corrupt bargain....
...[15]Not every campaign contribution, we recognize, is a bribe in sheeps clothing....
U.S. v. Biaggi, 705 F.Supp. 790 (S.D.N.Y., Jun 27, 1988)
Bribery by John Mariotta offer of an option for 20,000 shares of wedtech

stock in Betsos name, Betso was a nominee for Peter Neglia, to influence
Peter Neglias official acts
Keywords: bribe to prosecutor district attorney in return for the official
action of falsely maliciously indicting another for a crime; in return for
the official action of calling ceasing criminal investigation into briber.
U.S. v. Triumph Capital Group, Inc., 260 F.Supp.2d 444, 447, (D.Conn., Apr
18, 2002)
Bribery by consulting contracts and kickbacks, campaign contributions in

return for an official action or lack of official action on party of an
public offficial
In public corruption prosecution, defendants moved to dismiss counts charging
them with violations of Racketeer Influenced and Corrupt Organizations Act
(RICO) and wire fraud/theft of honest services. The District Court, Nevas, J.,
held that: (1) indictment sufficiently alleged existence of closed-ended or
open-ended continuity; (2) indictment adequately alleged nexus between
mailings and crime; and (3) theft of honest services element of mail or wire
fraud prosecution did not need to be grounded in state law.
Motions denied.
[7] Racketeer Influenced and Corrupt Organizations

91
319Hk91 Most Cited Cases
To be sufficient, indictment charging violation of Racketeer Influenced and
Corrupt Organizations Act (RICO) must allege that: (1) defendant was employed
by or associated with enterprise;
(2) defendant knowingly conducted or
participated directly or indirectly in conduct of affairs of enterprise
through pattern of racketeering activity; (3) defendant knowingly committed
or aided and abetted commission of at least two acts of racketeering; and (4)
activities of enterprise affected interstate or foreign commerce. 18 U.S.C.A.
1962(c).
91
Indictment charging former state treasurer, campaign officials, provider of
investment services for state retirement fund, investment firm, and others
with violations of Racketeer Influenced and Corrupt Organizations Act (RICO)
in connection with bribery scheme sufficiently alleged existence of closedended or open-ended continuity, despite defendants' contentions that scheme
lasted only eight months and had finite goal of financing treasurer's reelection campaign; there was nothing in nature of alleged predicate acts that
suggested that enterprise's activities reached natural end or that scheme to
bribe treasurer to obtain investments of state pension assets would have ended
if treasurer had been re-elected, and alleged predicate act of obstruction of
justice was not merely based on "exculpatory no," but rather involved
corruption of grand jury investigation. 18 U.S.C.A. 1962(c).
91
Whether Connecticut bribery statutes required specific intent to influence
official conduct was irrelevant in determining sufficiency of indictment
charging defendants with violations of Racketeer Influenced and Corrupt
Organizations (RICO) statute in connection with bribery scheme, where
indictment alleged that campaign contributions were offered and received in
exchange for official state acts.
C.G.S.A.
53a-147, 53a-148;
18
U.S.C.A. 1961(1)(A).
[17] Postal Service
35(9)
306k35(9) Most Cited Cases
Elements necessary to establish offense of mail fraud/theft of honest services
are: (1) scheme or artifice to defraud; (2) for purpose of depriving another
of intangible right of honest services; and (3) use of mails in furtherance
of scheme. 18 U.S.C.A. 1341, 1346.
[18] Postal Service
48(4.7)
306k48(4.7) Most Cited Cases
Indictment charging defendants with mail fraud/theft of honest services in
connection with scheme to bribe state treasurer to invest state pension assets
in alleged briber's investment fund adequately alleged nexus between mailings
and crime, even if mailings did not precede crime, and were routine,
intrinsically innocent, or required by law; indictment expressly alleged that
mailings were made "[f]or the purpose of executing and attempting to execute
the scheme and artifice to defraud and deprive the citizenry of Connecticut of
the honest services of the incumbent State Treasurer," and mailings were made
within time period of alleged scheme.
18 U.S.C.A.
1341, 1346.
NEVAS, District Judge.

Pending before the court are motions of defendants **Triumph Capital Group,
Inc. ["Triumph"], **Frederick W. McCarthy ["McCarthy"], **Charles B. Spadoni
["Spadoni"], **Lisa A. Thiesfield ["Thiesfield"] and **Ben F. Andrews
["Andrews"] to dismiss numerous counts of the superseding indictment
("indictment") in this public corruption case. Specifically, all five of the
defendants move to dismiss counts one and two, which charge them with
conducting and conspiring to conduct the affairs of an enterprise through a
pattern of racketeering activity including bribery, bribe receiving,
obstruction of justice and witness tampering *448 in violation of RICO, 18
U.S.C. 1962(c) and (d). Triumph, McCarthy, Spadoni and Thiesfield also
move to dismiss counts sixteen and seventeen, which charge them with mail
fraud/theft of honest services in violation of 18 U.S.C. 1341 and 1346.
Additionally, Spadoni moves to dismiss the wire fraud/theft of honest services
charges alleged against him in counts twenty through twenty-three. [FN1]
FN1. Triumph, McCarthy, Spadoni and Thiesfield have also moved to
dismiss the counts alleging a violation of 18 U.S.C.
666(a)(1)(B),
Theft/Bribery Concerning Programs Receiving Federal Funds. That motion
is still under advisement.
And the court stated at p.449-451,

The indictment in this case alleges these statutory elements. It charges that
from in or about March, 1997, to in or about October, 2000, the defendants
knowingly and unlawfully conducted and participated directly or indirectly in
the affairs of an enterprise through a pattern of racketeering activity. The
members of the alleged association-in-fact enterprise are **Triumph,
**McCarthy, **Spadoni, **Thiesfield, **Andrews and two other individuals who
are not charged as defendants, **Paul J. Silvester ("Silvester"), the former
Connecticut State Treasurer, and **Christopher J. Stack ("Stack"). According
to the indictment, **Triumph is an investment firm with its principal place of
business in Boston, Massachusetts. **McCarthy is Triumph's Chairman and
principal shareholder. **Spadoni is Triumph's General Counsel. **Thiesfield
was an employee of the Connecticut State Treasurer's Office from September,
1997, to May, 1998, when she became campaign manager for the Silvester for
State Treasurer Campaign. Andrews was employed as managing director of a
company that provided investment services to the Connecticut State Treasurer's
Office and was the Republican candidate for Connecticut Secretary of State in
1998. Silvester was, from January, 1995, to October, 1996, the Chief of Staff
at the Connecticut State Treasurer's Office. In October, 1996, he became the
Deputy Treasurer, and when the elected State Treasurer resigned on July 22,
1997, **Silvester was appointed State Treasurer.
**As State Treasurer,
Silvester had sole authority for managing and investing hundreds of millions
of dollars of *450 assets of **the Connecticut Retirement Plans and Trust Fund
("CRPTF"). In 1998, Silvester ran as the Republican candidate for Connecticut
State Treasurer.
He was defeated in the November, 1998 election and left
office on January 6, 1999.
**Christopher A. Stack ("Stack") was a close
associate of Silvester. Each of the defendants is alleged to be employed by
and associated with the alleged enterprise.
The indictment charges each defendant with at least two acts of racketeering
consisting of either bribery, aiding and abetting bribe receiving, obstruction
of justice or witness tampering.

Further, the indictment alleges that the
enterprise was engaged in, and its activities affected, interstate commerce.
In addition to alleging the statutory elements of RICO, the indictment also
descends to particulars.
Specifically, it alleges that the purpose of the
racketeering activity conducted through the enterprise was to enrich the
defendants and others through ongoing criminal activity including bribery and
fraud;
to conceal the defendants' participation in the criminal activity
through obstruction of justice and witness tampering;
and to conceal
Silvester's participation in and enrichment from the criminal activity. **The
purpose was accomplished by, among other means, corrupting the Connecticut
pension investment process through solicitation and payment of bribes, rewards
and gratuities, which deprived the citizens of Connecticut of the honest
services of the incumbent state treasurer.
The manner and means by which the defendants conducted and participated in
the affairs of the enterprise is also particularized in the indictment. **The
defendants allegedly funneled campaign contributions to the Silvester for
State Treasurer Campaign in exchange for the investment of state pension
assets; aided and abetted Silvester in the solicitation, acceptance and
agreement to accept bribes, rewards and gratuities for, because of, or as
consideration for pension fund investments; **agreed to pay bribes, rewards
and gratuities in consideration for pension investments; and agreed to kick
back a portion of the corrupt payments to Silvester.
In this regard, the indictment alleges that Silvester and Stack had a corrupt
arrangement whereby Silvester, in connection with pension investments, would
direct the investment fund to compensate Stack as a consultant and Stack would
then pay Silvester a portion of the consultant fees.
The indictment also
alleges that the defendants attempted to conceal that Silvester was sharing in
the corrupt payments and their participation in the criminal activity through
obstruction of justice and witness tampering.
The indictment also provides details of the predicate racketeering activity
in which the members of the enterprise engaged. Specifically, the alleged
pattern of racketeering activity consists of the following acts: Racketeering
Act 1 (bribery) charges that between April, 1998, and July, 1999, Andrews,
Silvester and Stack agreed that, in return for Silvester's investment of state
pension assets with a firm or fund, **Andrews would receive a consulting
contract from that firm or fund and would kick back a portion of the money he
received to Silvester through Stack.
**It further alleges that Silvester
solicited from Fund A a $1 million consulting contract for Andrews as
consideration for an investment of $100 million of state pension assets with
Fund A, **that Andrews, Silvester and Stack agreed that Andrews would split
the $1 million with Stack, and Stack would kick back a portion of his share to
Silvester.
Then, after Andrews arranged for one-half of his payment to be
paid to Stack, Silvester would sign closing documents *451 investing $100
million of state pension assets with Fund A.
Racketeering Act 2A (bribe receiving) charges that between March, 1998, and
November, 1998, **Thiesfield aided and abetted Silvester in the receipt of
benefits consisting of a $25,000 payment to Thiesfield and financial support
to the Silvester for State Treasurer Campaign from McCarthy, Spadoni and
Triumph in exchange for an investment of state pension assets in a Triumphrelated investment fund. Further, Thiesfield committed an act involving bribe
receiving when she aided and abetted Silvester's solicitation, acceptance and
agreement to accept from McCarthy, Spadoni and Triumph benefits consisting of
financial support to Thiesfield and **the Silvester for State Treasurer

Campaign as consideration for Silvester's investment of state pension assets
in a Triumph-related investment fund.
Racketeering Act 2B (bribery) charges that between March, 1998, and November
8, 1998, McCarthy, Spadoni and Triumph provided benefits consisting of $25,000
to Thiesfield and financial support to the Silvester for State Treasurer
Campaign, to Silvester in exchange for an investment of state pension assets
in a Triumph-related investment fund. It further charges that between March,
1998, and November 8, 1999, McCarthy, Spadoni and Triumph committed bribery by
offering, conferring and agreeing to confer on Silvester those benefits as
consideration for Silvester's investment of state pension assets in a Triumphrelated investment fund.
Racketeering Act 3 (bribery) charges that between November, 1998, through
July, 1999, **Andrews committed an act of bribery by offering, conferring and
agreeing to confer money to Silvester and Stack as consideration for
Silvester's decision to increase by $50 million the amount of state pension
assets invested with Fund A.
Racketeering Act 4A (bribe receiving) alleges that between November, 1998,
and the date of the indictment, Thiesfield, together with Silvester and Stack,
committed **an act involving bribe receiving by aiding and abetting
Silvester's solicitation, acceptance and agreement to accept from McCarthy,
Spadoni and Triumph benefits consisting of consulting contracts for Thiesfield
and Stack valued at approximately $2 million as consideration for Silvester's
increased investment of state pension assets with Triumph Connecticut-II.
Racketeering Act 4B (bribery) charges that between November, 1998, and the
date of the indictment, McCarthy, Spadoni and Triumph committed an act
involving bribery by offering, conferring and agreeing to confer consulting
contracts valued at approximately $2 million for Thiesfield and Stack as
consideration for Silvester's increased investment of state pension assets
with Triumph Connecticut-II.
And the court stated at p.458-459,

III. Motion to Dismiss Counts Sixteen & Seventeen Mail Fraud/Theft of Honest
Services
[17] Counts sixteen and seventeen of the indictment charge Triumph, McCarthy,
Thiesfield and Spadoni with mail fraud/theft of honest services. The elements
necessary to establish this offense are (1) a scheme or artifice to defraud;
(2) for the purpose of depriving another of the intangible right of honest
services; and (3) the use of the mails in furtherance of the scheme. See 18
U.S.C.
1341 & 1346.
Fraudulent intent is an essential element of the
crime. See United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir.1994). Here,
the indictment charges the defendants with devising a scheme to defraud and
deprive the citizens of Connecticut of their right to Silvester's honest
services as state treasurer, i.e., performance of his duties free from deceit,
favoritism, bias, conflict of interest and self-enrichment.
**Counts sixteen and seventeen allege a scheme in which McCarthy, Spadoni and
Triumph, who had business with Silvester and sought additional business from
him, agreed with Thiesfield and Silvester to provide financial benefits to
Thiesfield and Silvester's re-election campaign for the purpose of influencing
him and obtaining ongoing favorable treatment from him in connection with
investments of state pension assets in a Triumph-related fund.
Specifically, the indictment alleges that Spadoni, on behalf of Triumph and
with McCarthy's approval, entered into a $25,000 consulting contract with
Thiesfield as a cover to pay her to work as Silvester's campaign manager. In
addition, McCarthy, Spadoni and Triumph allegedly agreed to raise money for
Silvester's campaign, even though doing so would require them to circumvent
state laws which restricted people who had financial dealings with the state
treasurer's office from contributing to or soliciting money for his campaign.
McCarthy and Triumph allegedly circumvented those laws by raising about
$100,000 for the Connecticut Republican Party (CRP) knowing that Silvester had
reached an agreement with the chairman of the CRP which led him to expect that
the CRP would give his campaign a percentage of the funds it received as a
result of his and his campaign's efforts. McCarthy and Spadoni also allegedly
disguised *459 their contributions by giving money to others to contribute in
their names.
With respect to the use of the mails, the indictment alleges that, "for the
purpose of executing and attempting to execute" the scheme and artifice to
defraud and deprive the citizenry of Connecticut of the honest services of the
incumbent State Treasurer, the defendants "did knowingly cause to be placed in
an authorized depository for mail matter or caused to be sent or delivered by
any private or commercial interstate carrier" two items: (1) a letter from
the CRP to Kathryn McCarthy in June, 1998; and (2) a statement addressed to
the Office of the Secretary of State from the Silvester for State Treasurer
Campaign in July, 1998.
U.S. v. Casamayor, 837 F.2d 1509, 1511-1512, 24 Fed. R. Evid. Serv. 1001 (11th Cir.(Fla.), Feb 23, 1988)
Defendants were convicted of racketeering and conspiracy to commit racketeering by the United States District
Court for the Southern District of Florida, No. 84-413 CR-CCA, C. Clyde Atkins, J., and they appealed. The Court
of Appeals held that: (1) denial of RICO defendants' motion for severance, based on alleged spillover effects of
allowing RICO and income tax counts to be tried together, was not abuse of discretion; (2) statements were properly
admitted as statements of coconspirator in furtherance of conspiracy; (3) allowing state to introduce evidence of
coconspirators' guilty pleas was not plainly erroneous; (4) information not revealed by juror during voir dire, that
juror had been trainee some 23 years earlier in same police department in which RICO defendant served, would not
have raised presumption of bias sufficient to support challenge for cause; and (5) prosecutor's opening statement,
that indictment is not evidence but is merely vehicle by which defendants are called to answer in criminal trial, did
not shift burden of proof and deprive defendants of fair trial.
Affirmed.
622.7(8)
110 Criminal Law

110XX Trial
110k622 Joint or Separate Trials of Codefendants
110k622.7 Grounds for Severance or Joinder
110k622.7(8) k. Evidence
Compartmentalization. Most Cited Cases
(Formerly 110k622.2(8))
Admissible
Only
Against
Codefendant;
Spillover
or
Denial of RICO defendants' motion for severance, based on alleged spillover of effect of allowing RICO and
income tax counts to be tried together, was not abuse of discretion, where trial court instructed jurors that income tax
evidence was admissible only against codefendant, and income evidence would have been admissible, even if tax
counts had been severed, to show that codefendant received bribes.
[1] The major argument of the defendants for severance involved the alleged prejudicial spillover effect from
the joinder of co-defendant Casamayor's income tax counts with the RICO and narcotics charges. Approximately
half of the evidence presented at the three and one-half month trial related to Casamayor's tax counts . The quantity
of evidence, however, does not alone constitute specific and compelling prejudice. See United States v. Walker, 720
F.2d 1527, 1533-34 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). **The taxrelated charges were included to show that Casamayor must have received bribes because his income and expenses
far exceeded that which he earned in his employment with the Key West Police Department and other *1512
legitimate sources. That Casamayor received bribes was an important part of the Government's case. A separate trial
on Casamayor's tax counts would have resulted in extensive duplication of evidence. See United States v. Zicree, 605
F.2d 1381, 1386 (5th Cir.1979), modified on other grounds, 609 F.2d 826 (5th Cir.), cert. denied, 445 U.S. 966, 100
S.Ct. 1656, 64 L.Ed.2d 242 (1980).
U.S. v. Mandel, 591 F.2d 1347, 1377-1378, 5 Fed. R. Evid. Serv. 133 (4th Cir.(Md.), Jan 11, 1979)
**Bribery imparts the notion of some more or less specific quid pro quo. Quid pro quo means the giving of
something in *1378 exchange for something else. Not every gift, favor (or) contribution made to or received by a
public official constitutes bribery. The crime of bribery occurs only if the gift or favor is coupled with a particular
criminal intent. The crime of bribery requires that there be a gift or favor received by a public official as a quid pro
quo. This requirement would be satisfied if the jury were to find beyond a reasonable doubt a course of conduct or
favors flowing to a public official in exchange for an official act, or in exchange for a pattern of official actions
favorable to the donor even though no particular gift or favor is directly connected to any particular official act. This
requirement would also be satisfied if a gift were made or a favor were done upon the condition that the public
official act favorably to the donor when necessary.
As to a public official, the requisite intent is not supplied merely by the fact that he received a gift or favor with
knowledge that it was motivated by some generalized hope of some ultimate benefit on the part of the donor. It is
necessary to the crime of bribery that the public official received the gift or favor with knowledge that the benefits
were conditioned upon his performance of an official act, a pattern of acts, or an express or implied agreement to act
favorably to the donor when necessary and with intent that he be so influenced in the performance of his official
duties.
As to the donor, the requisite intent is not supplied by the fact that he was motivated by making the gift or doing
a favor by some generalized hope of some ultimate benefit on his part. The practice of promoting a favorable social
climate by making gifts or doing favors for a friend does not amount to bribery if motivated by friendship alone, and
no official action is expected in return.
A legitimate good faith business transaction not involving the giving of something of value in exchange for
official action is not a bribe. The crime of bribery requires that something of value be given to a public official in
exchange for or as compensation for official action. Thus, a distinction between conduct that constitutes the crime of
bribery and conduct that does not is the existence or nonexistence of criminal intent that the benefit be received by
the public official in exchange for some official act, a pattern of acts, or an expressed or implied agreement to act
favorably to the donor when necessary.
U.S. v. Wilkes, 662 F.3d 524, 544, (9th Cir.(Cal.), Oct 19, 2011)
Background: Defendant was convicted in the United States District Court for the Southern District of California,
Larry A. Burns, J., of conspiracy, honest services wire fraud, bribery, and money laundering, and he appealed.
Holdings: The Court of Appeals, Alarcn, Senior Circuit Judge, held that:
(1) evidentiary hearing was warranted to determine whether prosecution's refusal to grant immunity to defense
witness amounted to denial of fair trial;
(2) prosecution had no duty under Brady or Giglio to provide to defendant charged with bribery proffers made by
cooperating witness;
(3) defendant failed to establish that he was prejudiced by prosecution's pretrial unlawful disclosure of grand jury
information;
(4) prosecutor's argument that its witnesses told truth did not constitute improper vouching;
(5) district court did not abuse its discretion in denying defendant's requests for continuance;
(6) there was sufficient evidence to support defendant's convictions; and
(7) defendant's effort to disguise source of kickback was separately punishable under money laundering statute.
Affirmed in part and remanded in part.
[36] Bribery 63
11
63 Bribery
63k8 Evidence
63k11 k. Weight and sufficiency. Most Cited Cases
Conspiracy 91
47(6)
91 Conspiracy
91II Criminal Responsibility
91II(B) Prosecution
91k44 Evidence
91k47 Weight and Sufficiency
91k47(3) Particular Conspiracies
91k47(6) k. Fraud upon government. Most Cited Cases
United States 393
34
393 United States

393I Government in General
393k34 k. Mints, assay offices, coinage, and money. Most Cited Cases
**There was sufficient evidence to support defendant's convictions for offenses predicated upon honest services
fraud, including conspiracy, money laundering, and bribery, where government proved that defendant engaged in
scheme to defraud United States and its citizens of their right to United States congressman's honest services, and
that this scheme involved both quid pro quo bribery and material misrepresentations. 18 U.S.C.A. 201, 371,
1956(a)(1)(B)(i).
[36] In Skilling, the Supreme Court held that honest services fraud theories other than bribery and kickback
schemes are invalid. 130 S.Ct. at 2931. The evidence against Wilkes of honest services fraud, however, was
sufficient to convict because the government proved that Wilkes engaged in a scheme to defraud the United States
and its citizens of their right to Cunningham's honest services, and that this scheme involved both quid pro quo
bribery and material misrepresentations. See United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.1980) (The
requisite scheme ... to defraud is found in the deprivation of the public's right to honest and faithful government.
When a public official is bribed, he is paid for making a decision while purporting to be exercising his independent
discretion. The fraud element is therefore satisfied.).
The jury convicted Wilkes of federal bribery under 18 U.S.C. 201. The government presented substantial evidence
that Wilkes engaged in a course of conduct of favors and gifts in exchange for benefits and support from
Cunningham. See **United States v. KincaidChauncey, 556 F.3d 923, 943 (9th Cir.2009) (bribery violation's
requisite quid pro quo satisfied by a course of conduct of favors and gifts flowing to a public official in exchange
for a pattern of official actions favorable to the donor ) (quoting United States v. Jennings, 160 F.3d 1006, 1014
(4th Cir.1998)) (footnote and additional citations omitted).

Consider, for example, the bribery of public officials, as in United States v. Murphy, 768 F.2d 1518 (7th Cir.1985).
Judge Murphy took money from litigants in cases over which he presided. Doing this deprived the public of his
honest services. He did not take money from the public coffers, but the bribes were proceeds' of the scheme to
defraud, and if he had engaged in financial transactions with these proceeds Judge Murphy could have been
convicted of money laundering as well as the scheme to defraud the public
U.S. v. Garner, 837 F.2d 1404, 1407, 24 Fed. R. Evid. Serv. 476 (7th Cir.(Ill.), Dec 29, 1987)
Private contractors making cash payments to sewer inspectors of the City

of Chicago.
Evidence testimony of private contractors, notebooks keeping record of
payments to sewer inspectors.
Eight defendants who were all city sewer inspectors were convicted for violations of the Racketeer Influenced
and Corrupt Organizations Act and the Hobbs Act by a jury in the United States District for the Northern District of
Illinois, William T. Hart, J., and they appealed. The Court of Appeals, Ripple, Circuit Judge, held that: (1) joinder of
defendants was proper; (2) coconspirator statements were admissible; (3) receipt of illegal gratuities in violation of
Illinois official misconduct statute could constitute predicate RICO violations; and (4) court's failure to grant jury
request for transcript was not abuse of discretion.
Affirmed.
General Background
This case involves the payment of bribes by private sewer contractors to sewer inspectors of the City of
Chicago. Sewer work on private property in Chicago is performed by contractors regulated by the city. All
contractors must be licensed by the city, and a permit and inspection must be obtained for most sewer work.
Sewer contractors pay a fee to the city to obtain work permits. The amount of this fee varies depending on the
job that will be done. Before a contractor begins a job, he is required to contact the Department of Sewers and report
the type, location, and price of the work. This information is then transmitted to a central desk for assignment to an
inspector. The inspector travels to the jobsite to check the contractor's work, handle citizen complaints, and accept
the check or money order for the permit fee. Inspections are performed after the work is completed but before the
excavation is filled in. **Inspectors are not entitled to any payment other than the permit fee. After inspecting the
job and accepting the *1408 permit fee, the inspectors return the fee to the permit desk by interoffice mail.
The government does not contend that the defendants ever failed to remit the permit fee. Rather, this case
involves the payment of additional amounts to inspectors by contractors. At trial, the government presented evidence
demonstrating that sewer contractors, as a matter of course, gave inspectors from $10 to $20 per inspection . The
government contended that this system was the product of a conspiracy among the sewer inspectors, and that the
receipt of these additional payments constituted acts of bribery and extortion. The defendants contended that there
was no conspiracy among the inspectors, and that the additional payments to inspectors were mere gratuities and
were not intended as bribes nor induced by extortion.FN2
FN2. Six of the eight defendants used this defense. Defendant Harold Knies contended that he never
received any payments and that there was no tradition of making payments. Defendant Hensley Garner
contended that there was insufficient evidence to establish beyond a reasonable doubt that he had violated
any laws.
On July 17, 1985, a grand jury returned an 84-count indictment against 14 defendants, all of whom were
inspectors for the Department of Sewers of the City of Chicago. In Count 1 of the indictment, all 14 defendants were
charged with conspiracy in violation of the RICO statute, 18 U.S.C. 1962(d). This count of the indictment alleged
that the defendants had agreed to conduct the affairs of the Department of Sewers through a pattern of racketeering
activity, and it incorporated by reference the predicate acts alleged in the later individual RICO counts. In counts 215, each of the 14 defendants was charged with one count of violating the RICO statute, 18 U.S.C. 1962(c). The
indictment alleged numerous acts of racketeering activity by each defendant in violation of the Illinois bribery
statute and the Illinois official misconduct statute. FN3 In Counts 16-84, each defendant was charged in five counts
with extortion under color of official right in violation of the Hobbs Act.
FN3. The Illinois bribery statute is found at Ill.Rev.Stat. ch. 38, para. 33-1. The Illinois official misconduct
statute is found at Ill.Rev.Stat. ch. 38, para. 33-3.
Eight of the 14 defendants were tried jointly. The trial began on January 6, 1986 and concluded on February 21,
1986. The government's case centered on the testimony of more than 50 witnesses. Most of the witnesses were
contractors or their agents who had paid money to inspectors. Many of these witnesses testified under a grant of
immunity. Four witnesses were not contractors or their agents, including one of the most important witnesses,
Aubrey Blunt, a sewer inspector, who testified under a plea bargain agreement.
The government also introduced a substantial amount of documentary evidence. **Many of the sewer
contractors retained records of various jobs, and some even kept records of payments to inspectors. Records of the
Department of Sewers also were introduced that identified which inspectors had been assigned to particular jobs.
Most of the evidence of bribery and extortion was provided by the direct testimony of contractors . As to each
defendant, several contractors testified that they made payments to the inspector and that these payments were
accepted. At least five contractors testified against each inspector.FN4

**2. Evidence of Conspiracy
As proof of the conspiracy, the government offered a good deal of custom and practice evidence. This
evidence was admitted over the objection of the defendants. Custom and practice evidence consisted of testimony by
contractors concerning the tradition of giving and receiving money in the sewer business. Contractors testified that it
had long been customary in the business for inspectors to receive payments of $10 or $20, or even more, per
inspection. They tesitifed that these payments were made because it was commonly understood that inspectors
would cause hassles and delays if they were not paid. Some contractors testified that they were advised to make
these payments by their parents or friends or prior employers, and that the *1410 regular practice was to conceal the
payment from the customer by putting it in an envelope or folding the cash into the check for the permit fee.
The government also presented evidence of an established price structure for payoffs. For many years, the
standard fee for a permit was $10. Later, the price went up to $20. One contractor testified that he was told by an
inspector that the price of poker went up. Tr. 10 at 1416. Several contractors testified that they were told by
inspectors that the standard fee had gone up to $20. The defendants conceded at oral argument that there was
evidence of parallel conduct.
Aubrey Blunt, an inspector, testified that he was told by other inspectors that he should take the money out of
the envelopes because it was for him, and that the purpose of the payments was to avoid hassles. Blunt related
conversations between inspectors describing contractors as all right or one of the good guys. Blunt testified that
these expressions meant that the contractor would make payments. Blunt described a discussion in which Rhey
Orme, one of the defendants, spoke to a group of inspectors and told them that the contractors should be paying $20
instead of $10.
As additional proof of the conspiracy, the district court admitted evidence from a notebook kept by employees
of **Wagner & Sons Sewer Company (Wagner & Sons). The book contained the name of the customer, the
customer's phone number and address, the employee assigned to the job, the estimated cost of the job, the permit
number, the inspector who was paid, the type of job, and the date. Julie Anderson, an employee of Wagner & Sons,
testified that the purpose of the book was to prevent double payment to an inspector. Ms. Anderson testified that
occasionally one inspector would collect money for another inspector, and that this would be noted in the book. The
defendants objected to the admission of the Wagner & Sons notebook because it included evidence of payments that
were not charged in the indictment and on the ground that it was unduly prejudicial. In its final instructions to the
jury, the court did not give a limiting instruction directly relating to the notebook; however, the record does not
reveal that one was requested.
U.S. v. Paulus, 331 F.Supp.2d 727, 729, (E.D.Wis. Aug 06, 2004)
bribery of district attorney by attorney

**the defendant, as the District Attorney of Winnebago County, accepted twenty-two bribes over the course of a
two-year period from June of 1998 through June of 2000. The total amount received by the defendant in bribes over
this period of time was slightly more than $48,000. The twenty-two cases in which bribes were accepted by the
defendant included misdemeanor, traffic and at least one felony charge. Most of the bribes were accepted in return
for favorable treatment in the form of a reduced charge on drunk driving cases. Other cases involved defendants who
had been arrested for, or were under investigation for, passing a counterfeit bill, soliciting prostitution, misdemeanor
theft, a *730 hunting violation, and the manufacturing or possession of marijuana. **All of the bribes were received
from a single attorney who had agreed to pay one-half of his retainer to Paulus in return for the favorable treatment
of his clients.
U.S. v. Qaoud, 777 F.2d 1105, 1116, (6th Cir.(Mich.),Nov 21, 1985)
Use of middleman (Judeh) and law firm attorney son of judge to pass cash
payments to Judge Callanan at gas station where Judeh was employed.
[12] The office of the Michigan District Court of the 18th District served by Judge Callanan is, in effect, the
RICO enterprise charged in this case. A state or local government office or organization may properly be charged as
a RICO enterprise. United States v. Davis, 707 F.2d 880, 883 (6th Cir.1983); United States v. Thompson, 685 F.2d
993, 994-95 (6th Cir.1982) (en banc), cert. denied, 459 U.S. 1072, 103 S.Ct. 494, 74 L.Ed.2d 635 (1982).
[13][14] The indictment in the case at bar alleges that the RICO enterprise was a group of individuals
associated in fact, although not a legal entity, which made use of the Office of the District Judge of the 18th District
Court. (Count One, 1, Count Two, 2). This form of indictment was employed because of language used in
United States v. Thompson. It is sufficient in this case particularly in view of the further allegation that the affairs of
this enterprise were conducted through a pattern of racketeering activity consisting of **bribery, **mail fraud, and
**obstruction of a criminal investigation. There is no requirement, as urged by defendants, that all conspirators be
involved in each of the underlying acts of racketeering, or that the predicate acts be interrelated in any way; all that
is necessary is that the acts are connected to the affairs of the enterprise. United States v. Sinito, 723 F.2d 1250, 1261
(6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 53 (1984); United States v. Sutton, 642 F.2d at
1017.
[15] Because we conclude that evidence was sufficient to indicate that defendants conducted racketeering
activity through the 18th District Court of Michigan, and that the defendant Judge and his co-defendants were
associated in fact, and that bribes and mail frauds were made possible through official and illegal conduct of Judge
Callanan, together with his co-defendant associates, which deprived the public of the expectation of honest services,
we reject the defendants' arguments about the sufficiency of proof of the RICO elements above specified. Evidence
was presented to show, if believed, that each of the defendants convicted under Counts One and Two were engaged
in an enterprise and/or a conspiracy within the meaning of the Act and that it affected interstate commerce through
its nexus with the court and the judge who corrupted the court processes. See United States v. Sutherland, 656 F.2d
1181, 1198 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982); United States v.
Robinson, 763 F.2d 778, 785 (6th Cir.1985). There was sufficient proof also that the enterprise, conducted by
defendants in Counts One and Two as associates-in-fact, involved a pattern of racketeering activity centered around
bribes and efforts to conceal these bribes involving two or more persons as charged in the indictment. See United
States v. Long, 651 F.2d 239 (4th Cir.), cert. denied, 454 U.S. 896, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); United
States v. Altomare, 625 F.2d 5, 8 n. 8 (4th Cir.1980); United States v. Cauble, supra, at 1332, 1333; United States v.
Dozier, 672 F.2d 531 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v.
Robinson, 763 F.2d 778 (6th Cir.1985).
Callanan Sr. bagman was Qaoud

People v. Keyes, 103 Cal.App. 624, 628-629, 284 P. 1096 (Cal.App. 2 Dist., Jan 31, 1930)
The indictment under which appellants were prosecuted charges them with a criminal conspiracy to commit
the crime of giving and offering a bribe in violation of the provisions of section 67 of the Penal Code, a felony, and
the crime of asking, receiving, and agreeing to receive a bribe in violation of the provisions of section 68 of the
Penal Code, a felony. *** **The pleading then alleges that during the times mentioned therein appellant Keyes was
the district attorney of the county of Los Angeles, that there were pending in the superior court of the county three
criminal actions, one against C.S. Lewis, Jacob Berman, alias Jack Bennett, appellant Rosenberg and others, the
second against E.L. Rouse, appellant Rosenberg, and others, and the third against Jacob Berman and others, and that
appellant was charged with the duty of prosecuting the three actions.
The nature of the conspiracyand it will be observed that but one conspiracy is mentioned in the language
above quotedis thus, with the omission of unnecessary verbiage, more specifically set forth in the indictment:
That continuously throughout the period of time from about the first day of September, 1927, to the first day of
September, 1928, *** the said above named defendants *** have conspired, combined, confederated and agreed
together, and with each other, to commit the crime of giving and offering a bribe in violation of the provisions of
section 67 of the Penal Code, a felony, and the crime of asking, receiving and agreeing to receive a bribe in violation
of the *629 provisions of section 68 of the Penal Code, a felony, that is to say, that the said defendants then and there
and continuously throughout said period of time *** have conspired, combined, confederated and agreed together
that he, the said Asa Keyes, *** would ask, agree to receive and receive various and divers things of value and
advantages and promises and undertakings to give things of value and advantages, and that the said defendants ***
[[[[several defendants other than appellants are named in the indictment] would willfully, unlawfully and
feloniously**1098 give and offer to give to him, the said Asa Keyes, various and divers things of value and
advantages and promises and undertakings to give things of value and advantages, with a corrupt intent and upon the
agreement and understanding that the action of him, the said Asa Keyes, as such district attorney *** would be ***
influenced thereby, in that he, the said Asa Keyes *** would control and direct the prosecution of each of said
actions to the end that in so far as said actions related to any of said above named defendants E.H. Rosenberg ***
[and others] that said actions would be disposed of in such manner as to result in the discharge of such defendant
[sic] without the conviction of such defendant [[[[sic].

that the overt acts charged in the indictment here include acts which amounted to a commission of the very crimes
which it is alleged that appellants conspired to commit. **The first overt act alleged was the receipt by appellant
Keyes, from one of the other defendants, of a large sum of money, the exact amount of which is to the grand jury
unknown, but which was approximately $10,000.00. **Others of the ten paragraphs which set up the overt acts
allege the receipt by appellant Keyes of articles of personal property.** The eighth of those paragraphs charges that
appellant Rosenberg delivered to the said Asa Keyes a certain wrist watch of the value of about $600.00, lawful
money of the United States.
personal relationhsip
People v. Wong, 186 Cal.App.4th 1433, 113 Cal.Rptr.3d 384, 10 Cal. Daily Op. Serv. 9585, 2010 Daily
Journal D.A.R. 11,675 (Cal.App. 2 Dist. Jul 28, 2010)
Background: Defendant, a former city commissioner, and director of non-profit entity, was convicted in the
Superior Court, Los Angeles County, Michael Johnson, J., of embezzling money, accepting a bribe, acting with a
conflict of interest, and committing perjury. He appealed.
Holdings: The Court of Appeal, AshmannGerst, J., held that:
(1) defendant's embezzlement conviction was not barred by the statute of limitations;
**(2) there was sufficient evidence to support defendant's bribery conviction;

(3) sufficient evidence supported defendant's conviction for acting with a conflict of interest;
**(4) defendant's omission on city's financial disclosure form of amount of money he had accepted as a bribe
supported his conviction for perjury.
[8] Bribery 63
63 Bribery
11
63k8 Evidence
63k11 k. Weight and sufficiency. Most Cited Cases
**There was sufficient evidence that defendant's intent in working as a consultant for third party during his
employment as a city commissioner was corrupt, as required to support finding of bribery; intent could be inferred
from third party's agreement to pay money to defendant, third party's knowledge that while it was paying defendant,
defendant would use his public office to influence actions of officials to obtain amendment of lease agreement
between city and third party, clandestine payment of funds into defendant's offshore account, defendant's failure to
disclose his third party relationship to city officials, and cessation of payments to defendant as soon as he left public
office. West's Ann.Cal.Penal Code 68.
See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, 49; Cal. Jur.
3d, Criminal Law: Crimes Against Administration of Justice and Public Order, 533.
[10] Officers and Public Employees 283
110
283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities
283k110 k. Duties and performance thereof in general. Most Cited Cases
**State conflict of interest statute represents the Legislature's decision to codify the common law rule
prohibiting public officials from having a personal financial interest in the contracts they form in their official
capacities. West's Ann.Cal.Gov.Code 1090.
[11] Officers and Public Employees 283
110
283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities
283k110 k. Duties and performance thereof in general. Most Cited Cases
**State conflict of interest statute applies when a public official has a direct financial interest in a contract, and
will apply even when a public official's financial interest is indirect, unless the interest is too remote and speculative.
West's Ann.Cal.Gov.Code 1090.
From anti_corruption_toolkit.pdf
Financial Investigation. One of the most successful ways to produce evidence against corrupt
public officials is to conduct financial investigations to prove that they spend or possess assets
beyond the means of their income (see Financial Investigations and Monitoring of Assets).
However, suspects are unlikely to place the bounty from a
Version 4, last edited 11 November 2002 199
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bribe into their daily bank accounts and instead may transform the proceeds into other forms of
property. Therefore, financial investigations should also concentrate on the lifestyles,
expenditures and property of the suspected persons. In this respect, it might be extremely helpful
to look not only at what has actually been spent, but also to compare the amounts of money
deposited into the bank accounts of suspects with deposits from previous years. Efforts should
also be focused on identifying whether the suspected corrupt person maintains foreign accounts.
The existence of such an account can be suspicious alone and indicate that funds are being
hidden. In order to be effective, financial investigations should be extended to the suspected
persons family members and those living in the same household: experience shows that they are
often used as conduits for corruption proceeds.
Identification of Slush Funds. In order to avoid paying bribes directly out of the corporate bank
account, it is common practice for larger organisations to create so-called slush funds, i.e. funds
that do not appear in official corporate accounts and records. Money needed to pay bribes can be
taken from these funds as needed. The methods adopted to create these funds are very similar to
techniques used to launder money. One common method is where the costs of services or goods
are falsified and funds used to pay for these alleged services or goods are transferred into the
slush fund account. It is usually extremely difficult to prove the actual receipt of this money as,
for example, in the case where consultants are hired and schemes enacted where monies paid are
actually returned to the slush fund in cash.
Investigation into the Slush Fund. Once a slush fund has been identified, the investigation should
be broadened to include all payments made out of this fund. All individuals with access to the
funds should be identified. Companies and private persons that have ongoing business with the
state and are found paying a bribe on one occasion are most likely to have done so on several
occasions.
Evaluation of Key Life Style Indicators. Prior to in-depth asset and life style monitoring, a
targets lifestyle should undergo initial screening to determine whether further investigation
should be undertaken. This might be restricted to a few significant assets that are given priority
over others, such as homes, second houses or holiday homes, means of transport and other items
of significant value.
Target Definition. Once initial grounds for suspicion have been found and a concrete target for
further investigation has been identified, the screening should not be limited to the suspected
persons, but should also target persons with whom they have strong ties, such as spouses and
Version 4, last edited 11 November 2002 203
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family members. Quite frequently, corruption proceeds are deposited into bank accounts
belonging to husbands or wives (less frequently to children, brothers or parents). This same
scheme to disguise actual ownership is often used for the registration of property.
Life Style Indicators. Investigators should focus on owned or rented residential homes, including
short-term vacation rentals, cars, boats, planes, holiday trips, recreational expenses (for example
restaurants), clothing expenses, the purchase of works of art and antiques, the purchase of jewels,
medical expenses and other large purchases in general. These parameters are usually used to
verify whether an in-depth asset assessment is justified.
Sources of Information. The instruments used to investigate disproportionate living standards
include public registers and contracts that can indicate excessive availability of money or
property (for example, a contract for the lease of a particularly expensive house). Bank and
company documentation might contain further information. In addition, verification of expenses
incurred by the public officials or persons close to them has proven extremely effective in
uncovering indicators of corruption.
Third Party Protection. In-depth investigations into the origins of third party property should
only be made when there are elements to reasonably justify the suspicion that third parties
possess property that belongs to the suspected corrupt official.
From combat_bribery_of_foreign_public_officials.pdf
1.1 Bribes through intermediaries
1. Article 1 of the Convention requires the coverage of cases of

bribing foreign public officials where a person intentionally offers,
promises or gives an undue advantage to a foreign public official
directly or through an intermediary. Since bribes are rarely given
directly to foreign public officials, and are often transferred
through, for instance, a local agent abroad, the non-coverage of cases
where the bribe is made through an intermediary would represent a very
large loophole. Indeed, a 2006 survey commissioned by Control Risks
and Simmons & Simmons3 showed that the vast majority of respondents4
believed that corporations from their own countries either
occasionally, regularly or nearly always sought to circumvent
laws on transnational bribery by using intermediaries.
3. This issue is also relevant to a major concern of the private
sector and civil society, and relates to two of the five issues
identified by the OECD Council in 1997 to be examined on a priority
basis by the Working Group on Bribery the bribery of foreign
political parties and party officials, and the role of foreign
subsidiaries in bribery transactions -- since foreign political
parties and party officials, and foreign subsidiaries may act as
intermediaries in such transactions. The role of intermediary can also
be played by other actors, including but not limited to the following:
agents, including customs agents, sales representatives, consultants,
suppliers, sub-contractors, joint venture partners and other business
partners including lawyers.5
1.2 Bribes that benefit third parties
4. Article 1 of the Convention requires the coverage of cases where a
bribe is offered, promised or given to a foreign public official for
that official or for a third party. Foreign public officials often
want to obtain benefits for a third party, such as a political party,
party official, charity, spouse, friend, business partner or company
in which the foreign public official holds a beneficial interest.
Bribery in relation to political parties and party officials has been
identified as a priority issue by civil society and is one of the five
issues identified by the OECD Council in 1997 to be examined on a
priority basis by the Working Group on Bribery.
From anticorruption investing_&_trial_guide.pdf
2. Indicators
Tax returns, financial disclosure forms, employment records, and loan
applications should be
reviewed;
Identify the Defendants Stakeholders
The suspect under whose name the asset is likely to be controlled needs to be
identified. Family members
(such as spouses, children, parents, sisters, and brothers) who may be holding
assets for the suspect need to
be identified, as well as mistresses and/or other intimates who might be trusted by
the suspect and may be
knowledgeable about their assets. Other possible people to research are business
associates and friends who
may be maintaining assets for the suspect, and secretaries and clerical personnel,
as they could also have a
wealth of information.
Note that these individuals are identified through physical surveillance and/or
technical surveillance in both
covert and overt processes, as well as through interviews, which widen the circle
of individuals to be
contacted.
There is also the possibility that assets are held by persons who are paid
specifically to hold assets for the
suspect. (These include employees, accountants, lawyers, and debtors.)
Do Not Believe in Coincidence
Convicted corrupt officials often try to claim that the incident for which they were
caught was an
aberrationthis is not to be believed in the investigation stage, and is certainly not
to be believed in the
sentencing stage.
For purposes of investigation, it should be assumed that the incident for which the
team has information is not an
example of coincidence. If patterns can be identified, they should be follow up,
e.g., are other individuals or
entities doing business in the same way; do similar public projects, contracts, or
permits exist; were other
unexplained valuable items obtained by the subject; are other public officials or
close associates involved in similar
activities?
Do Not Believe in Coincidence
Convicted corrupt officials often try to claim that the incident for which they were
caught was an
aberrationthis is not to be believed in the investigation stage, and is certainly not
to be believed in the
sentencing stage.
For purposes of investigation, it should be assumed that the incident for which the
team has information is not an
example of coincidence. If patterns can be identified, they should be follow up,
e.g., are other individuals or
entities doing business in the same way; do similar public projects, contracts, or
permits exist; were other
unexplained valuable items obtained by the subject; are other public officials or
close associates involved in similar
activities?
TRACKING CASH
Some of the most incriminating and persuasive evidence in a public corruption

case is evidence that a public
official benefited financially from his allegedly corrupt activity. For example,
evidence that a public official or
employee deposited large sums of cash into a bank account, purchased expensive
items with cash, or spent
significantly more money than can be attributed to legitimate sources of income is
strong corroboration for
the testimony of cooperating co-conspirators regarding their involvement in a
bribery or payoff scheme with
the defendant. Depending upon the thoroughness of the governments financial
investigation, this type of
evidence will be unimpeachable and unexplainable by the defendant. Moreover,
this type of evidence will
have strong court appeal, because the typical jurist will not have had financial
experience of the corrupt public
official, that is, dealing with large sums of money.
Thus, a court will be more inclined to believe the testimony of cooperating coconspirator witnesses when the
government presents financial evidence that demonstrates the defendants ability
to spend cash or engage in
certain types of financial transactions, an ability that can be explained only by the
defendant public officials
corrupt activity.
The purpose of this section is threefold:
1. To present an overview of the types of financial evidence that are available in
detecting and prosecuting
bribery, payoff, or other types of cash generation schemes involving corrupt public
officials;
2. To outline an investigative plan for attacking the typical corruption case in
which a public official is
allegedly accepting bribes or otherwise benefiting financially by corrupting a
public office; and
3. To discuss the most effective manner in which to present financial evidence at
the trial of a public
official.
Overview of Financial Evidence
Methods of Proof
Methods of proving receipt of unlawful income include the following:
1. Specific Items
Whenever the government has a witness who will testify that he carried bribes to a
public official on behalf of
a third party (bagman) or paid the bribes directly to the official on behalf of himself
(bribe-paying attorney,
bribe-paying businessman), this evidence is specific item proof that will support
a tax charge. Often, the
evidence is used in conjunction with an indirect method of proof (net worth, total
expenditures, and bank
deposits) that utilizes circumstantial evidence to support a tax charge and provides
corroboration for the
various corruption charges.
Example: A public official has his girlfriend placed on the payroll of a private
company. This official has
enforcement power over business conducted by the private company. The
girlfriend receives several
thousands of dollars in salary, although she has never presented herself at work
(i.e., she has not earned the
money). The evidence shows that it was the public official who actually earned
the money (the company
paid the salary to curry favor with the official, who had arranged for the ghost
payroll situation).
Depending on the laws of the country involved, the public official is obligated to
declare this specific item of
income and the facts as presented show that he willfully omitted it from his
declaration.
2. Net Worth
In a net worth tax case, the government tries to prove that a defendant has
underreported income (i.e., there
are discrepancies between an individuals income for a given period and their net
worth).
First, the government establishes a defendants opening net worth or total net
assets at the beginning of the
prosecution period, calculated by subtracting the amount of defendants liabilities
from his assets, including
any accumulated cash.
Next, evidence of the increase in the defendants net worth over the tax year is
presented. The government
must show that the increase in net worth is due to a likely taxable source, such as
the receipt of bribes, or that
there were no nontaxable sources of funds that account for the increase in net
worth, such as loans, gifts, or
inheritances.
Finally, the government must negate all reasonable nontaxable sources suggested
by the defendant to explain
the increase in net worth. The difference between the defendants reported income
and the increase in net
worth for that year, after accounting for all nontaxable sources, is the unreported
income that forms the basis
for the particular tax charge (and, according to the governments theory,
represents the bribe or otherwise
unlawfully-derived income underlying corruption charges).
Example: A defendant underreported his income for a given year, as evidenced by
an increase in the
defendants net worth in excess of reported income. In this situation, the net worth
method was used in
conjunction with the specific items method to show that the public official diverted
campaign contributions
to his personal use and willfully omitted this and other income from his tax return.
3. Expenditures Method
Total Expenditures: This method and a derivative methodthe cash expenditure
methodare the most useful
methods of financial proof in a public corruption case. While the net worth method
is most often used in
situations where an individual invests ill-gotten gains in durable property (real
estate, stocks, business
30 NEPAL ANTICORRUPTION INVESTIGATION AND TRIAL GUIDE
ventures), the expenditures method is primarily employed in the typical corruption

case where as official
spends bribes or unlawfully-derived cash on consumable items. Thus, a corrupt
official might use bribe
money on food, entertainment (restaurants, bars), clothing, travel, girlfriends (or
boyfriends), or other items
that are not as traceable (cashiers checks, money orders, travelers check, etc.).
In the total expenditures method of proof, the government calculates a starting
point, reflecting how much
cash a defendant had at the beginning of the tax year, through financial
statements, loan applications,
financing arrangements, economic disclosures statements, admissions made to
investigators, or a review of
their financial condition prior to the charging period.
Then, all of the defendants expenditures for the given year are totaled (increases
in cash deposited into the
defendants bank accounts, personal expenditures, checks written, cash purchases,
third-party checks issued
to the defendant but negotiated to another party, etc.).
The government next ascertains all of the defendants nontaxable sources of funds,
including loans,
inheritances, gifts, checks, tax refunds, insurance settlements, nontaxable portion
of assets disposed of during
the tax year, and any prior accumulated cash. Where the defendants total
expenditures for a given year
exceed his reported income, nontaxable sources of income, and available cash at
the beginning of the year,
the excess represents the amount of unreported income (bribes or otherwise
unlawfully-derived financial
gains) that forms the basis of the criminal conduct charged in the indictment.
Cash Expenditures. Another method of financial proof to support charges in public
corruption is the cash
expenditures method. This method is the most understandable and probative
method of proof, where the
charges involve a bribery pay-off or other type of unlawful cash generation scheme
engaged in by a corrupt
public official.
This type of financial analysis deals solely with the defendants use of cash. For
example, writing checks for
cash, withdrawing cash from a bank account, cashing salary or third-party checks,
or receiving cash gifts or
loans.
By totaling all of the defendants cash expenditures (such as deposits of cash into
an account, items or
services purchased with cash, and bills paid in cash) and subtracting all legitimate
cash sources (e.g., checks to
cash, withdrawing cash, cashing third-party checks or ones payroll checks, and
prior accumulated cash), the
government can determine the amount of cash expenditures made in excess of
legitimate sources of cash for
a given period. The amount of this excess cash represents the cash bribes, payoffs,
or otherwise illegallyderived
funds resulting from the defendants criminal conduct.
The greater the excess of the defendants cash expenditures, the more persuasive
is the proof and the more
difficult it will be for the defendant to devise a plausible explanation for the excess
cash expenditures. Given
the nature of the charged criminal conduct, a cash bribe, payoff or other type of
unlawful cash generation
scheme, this methodfocused simply on the defendants use of cashis the
simplest and most persuasive
type of financial analysis that can be presented to a court. This method of proof has
been used in various
judicial corruption cases where the judges spent significantly more cash than was
available to them.
4. Bank Deposits Method
This method of proof is normally used when a defendant makes regular deposits to
a bank account while
employed in or conducting an income-producing business. Often, this method
results in an expenditure-type
analysis as the investigation focuses on defendants cash deposits and other
expenditures made during the
indictment period.
5. Disproportionate Income/Property/Asset Method
In many countries of the world, GAs use the disproportionate income/ asset method
to create a prima facie
case that the individual is corrupt, placing the burden on the defendant to explain
how he obtained the assets.
However, in Nepal, and a few other countries, having disproportionate property or
income which is
incompatible or unnatural, or a public servant having an incompatible or

unsuitable lifestyle is a crime
in and of itself. It forces that public officials prove the sources from which they
have acquired such property.
A failure to prove that these assets are from legitimate sources deem that the
property was acquired in an
illegal manner. Hence, a crime has been committed and no other substantive crime
need be proved (see the Nepal
Prevention and Corruption Act, 2059 [2002 A.D.], Section 20.)

In Nepal, or in countries that do not make disproportionate property by itself a
crime, it is also a system of
proof to make a prima facie case on another (separate) substantive crime (other
than the crime of
disproportionate income). The burden shifts to the defendant, once the
disproportionate income, property,
or assets have been established by the state.
Note that when material possessions are of an amount or value so disproportionate
to official or other
earnings, a case is created which puts the burden on the suspect/defendant to
explain how the assets were
obtained.
The explanation requirement is to for the defendant to describe he has a number
of assets that are
unreasonable and incommensurate under the circumstances.
Examples: An officials standard of living is disproportionate to his or her official
salary and benefits, or the
official controls resources and property that are disproportionate to official income
and benefits either past or
present. It must be proved that those particular assets/properties are under the
dominion and control of the
suspect on the dates indicated in the charge.
The defendants status as a government servant must be proved, or it must be
proved that the individual
is a private person who is aiding and abetting a public official in the corrupt
activity.
It must be proved that the defendant maintained a standard of living not
commensurate with present or
past official salary, or with benefits, during the charge period (expenditures and
capital accretions could
not be reasonably afforded out of official salary or benefits).
Note that this property control (or expenditure) and/or liabilities could be incurred
not only by the suspect,
but by their parents, children, agents, trustee, etc., on the suspects behalf
In summary, it is necessary to prove 1) the items of property that were under the
defendants control at a
specified date, 2) the amount of monetary resources and other assets which were
in the defendants control at
that date, 3) total payments made up to the same date, thus, 4) establishing the
disproportion between the
three.
It is important to establish the defendants standard of living, including all
outgoing payments and capital
accretions (both domestic and abroad). This includes:
Goods and services acquired during the charged period;
Running costs, expenses of repairs, or maintenance and outgoings, incurred
during the charge period
(and/or connected with the property acquired before the charge period);
The value of any gifts given;
The money spent by the defendant on another individual;

The ability to obtain credit during the charge period;
The value of services obtained on credit;
Prepayments that were made during the charge period;
Amount of salaries or hires paid during the period;

Bills remaining unpaid for goods and services rendered during the period;
Increase in the defendants bank account between the beginning and end of the
period being investigated;
Deposits and investment made by or for the defendant, family, etc.;
Payments made by third parties for the benefit of the defendant;
Credit given for money received from sale of assets or goods before the charged
period (if shown they
come from an untainted source); and
All sources of income, including things such as agricultural income that the
target may have received
from family members, etc.
Other Types of Financial Evidence
Whether or not tax charges accompany the substantive bribery, payoff, or other
type of cash generation
criminal conduct charged against the public official, various types of financial
evidence should be developed
and presented. In cases where the charged crime involves a motive of financial
enrichment, a sudden increase
in cash expenditures or other unusual circumstances in the defendants handling of
money may be probative.
Evidence that the defendant public official expended large sums of cash during the
relevant time period or
engaged in certain types of cash transactions (evidence of changed spending
habits or lifestyle) corroborates
the governments proof regarding the defendants participation in the charged
scheme. Examples of
persuasive financial evidence in this context include those listed below.
1. No Checks for Cash
A review of the manner in which the defendant generates cash during the
investigated period may
demonstrate that the defendant had an unlawful cash source. The defendants
banking and check writing
activity may reveal that, during the charge period, the defendant wrote only a few
checks for cash and made
few cash withdrawals while depositing almost all salary checks. Yet, prior to the
time the defendant began
accepting cash bribes and subsequent to the bribe period (usually, after the
investigation began or once the
defendant became aware of the investigation), the defendant wrote substantially
more checks for cash, made
more cash withdrawals, or cashed more paychecks. Charting this out is persuasive
evidence that, during the
relevant time period, the defendant did not have to write checks for cash or
generate his own cash because he
was receiving cash bribes or payoffs and, thus, deviated from normal spending or
check writing habits.
Also, one should review the defendants check writing activity to determine if the
defendant wrote fewer nonsufficient
funds checks during the charged period because his bank account was better
funded during the
period in which he is alleged to have received the cash bribes/payoffs.
2. No Loans
In many instances, corrupt public officials who receive bribes on a systematic or
regular basis do not finance
the purchase of items during the bribe period. Yet, if they frequently financed or
secured loans outside the
indictment period, this pattern is another factor probative of the claim that they
benefited financially through
the alleged criminal conduct.
3. Using Cash Instead of Checks
Evidence that during the indictment period, the defendant used cash to pay bills
despite having maintained a
checking account, is probative of the defendants attempt to hide illegally-obtained
cash. Thus, if it can be
shown that the defendant purchased cashiers checks or money orders with cash
and used these to pay bills
instead of depositing the cash into his checking account and writing a check, it can
be argued that the
defendant did not want to surface the cash bribes and, therefore, refrained from
depositing the cash into
his bank account. Rather, the defendant chose to use a method of payment which is
more difficult to trace.
Securing information from a bank or financial institution that shows that the
defendant frequently purchased
cashiers checks, money orders, or travelers checks with cash is strong
corroboration for the governments
claim that the public official was involved in an unlawful cash generation scheme.
4. Unusual Use of Cash
Evidence of various types of cash expenditures made during the charged period
may suggest that defendant
had an alternative cash source which, the government can argue, involved the
bribery/payoff/unlawful cash
generation scheme alleged in the indictment. Thus, evidence of frequent cash
deposits, the use of large bills
(currency), unusually large cash expenditures made to purchase clothing, jewelry,
cars, etc., is probative of the
defendants receipt of cash and, hence, participation in the charged scheme.
The probative value of this type of evidence is enhanced, to the extent that the
government can show that the
defendant did not generate the cash for these expenditures through legitimate
means (cashing salary checks,
tax refund checks, dividend checks, etc., or writing checks for cash from an
account that appears to be
funded by legitimate sources).

5. No Checks or Credit Charges
Often, the absence of checks or credit charges during the suspect period is
extremely probative of the claim
that the defendant was spending sums of cash derived from unlawful conduct.
Thus, where it can be shown
that the defendant took trips or vacations (via an isolated hotel/restaurant bill paid
by the defendant in
another country, as evidenced by a credit card charge, personal check, or
negotiation of a travelers check),
there is a strong inference that while on these trips, the defendant spent cash (due
to the fact that money is
needed to travel, and traceable credit charges or checks few in number do not
account for all expenditures
likely to be incurred in the course of travel).
Similarly, where the defendants checking account and credit card slips reveal no
expenditures for daily
incurred living expenses (food, clothing, entertainment, etc.), it can be argued that
the defendant spent his
cash bribes/payoffs on the incidental expenses that everyone incurs in normal
living. Also, where it can be
shown that outside of the alleged bribed period, the defendant would normally
charged gasoline, car repairs,
restaurant expenses, etc., but similar charges do not appear during the indictment
period, the government
may argue that the defendants spending habits reflect an alternate cash source
during the relevant period.
6. Safe Deposit Box Activity
Where it can be shown that a defendant had a safe deposit box, the government
should review the activity
concerning entries to the box both during and outside of the charged period. If the
safe deposit entry records
reflect frequent activity during the indictment period, this provides a strong basis
for arguing that the
defendant stored his cash bribes in the safe deposit box and withdrew the cash
when needed.
Also, if the entry records show activity correlating with trips taken by the
defendant or dates of large cash
purchases, the government may argue that the cash bribes were concealed in the
safe deposit box and were
the source of the defendants personal cash expenditures. The absence of activity
outside the period
corroborates the claim that the defendant was involved in a bribery scheme during
the charged period.
Moreover, the absence of entries prior to the charged period will help negate any
defense that the defendant
had a prior accumulated cash hoard which, the defendant may later attempt to
argue, explains his
expenditures during the charged period.
7. Use of Third Parties in Financial Transactions

Evidence of cash or check deposits into third-party/nominee accounts that result in
checks issued from the
third-party account to the defendant suggests an attempt to launder otherwise
unlawfully-derived money.
Attempts to conceal the payment of money to a public official (through the use of
nominees, trust accounts,
etc.) are indicative of an unlawful, illegitimate transaction.
There may be circumstances in which the government will not want to introduce
financial evidence in its
case-in-chief but would rather use the evidence for purposes of cross-examining a
defendant. For example,
where there are several defendants and the investigation has uncovered useful
financial evidence with respect
to only one or two of them (particularly if the financial information is only
moderately persuasive), it may be
wiser simply to use the evidence for purposes of cross-examination. Otherwise, if
the government highlights
such evidence in its case-in-chief against some of the defendants, the other
defendants may argue that they
are innocent because had they been accepting bribes, the government would be in
a position to present
financial evidence of their bribe-taking.
CONDUCTING THE FINANCIAL INVESTIGATION
In conducting an investigation designed to uncover financial evidence of a
defendants receipt of cash bribes,
payoffs, kickbacks, or otherwise unlawfully-derived money, it is important, if
possible, to secure the
defendants tax returns for the period in which the alleged unlawful conduct took
place. If the defendant
made money in another country, it is possible that tax returns were generated
there. The returns should be
reviewed to determine the defendants income sources, deductions, banks
(identified via the listed interest
expense or interest income), and other financial information presented on the
return. Next, the defendants
payroll checks should be subpoenaed and determinations should be made as where
these checks were cashed
or deposited. All records of the defendants financial transactions and relationship
with these financial
institutions should be subpoenaed as necessary. A standard attachment should
accompany every subpoena
issued to a financial institution asking for all records pertaining to the defendant,
the defendants spouse, or
anyone else whose financial affairs may be intertwined with the defendant, that
would reflect any type of a
financial relationship between the defendant (or family members) and the bank.
This should include records
of a checking account, savings account, certificates of deposit, signature card,

monthly statements and
correspondence, deposit slips, deposited items, cancelled checks, wire transfers,
cashiers checks, money
orders, travelers checks, withdrawal slips, and loan files (including financial
statements, credit reports, loan
applications, safe deposit information, trust accounts, records of investment,
documents relating to any credit
card or credit-extending account, and any other financial information involving the
defendant).
Bank information from all banks/financial institutions in the areas where the
defendant works, lives, or has a
vacation home should be subpoenaed. It may be that the defendant has accounts at
banks separate from
those where legitimate sources of income are deposited.
Copies of the defendants cancelled checks or the original cancelled checks from
the defendant should be
subpoenaed. These will provide leads to other financial institutions, business
ventures, brokerage houses,
travel agencies, credit card companies, girlfriends, boyfriends, flower shops
(obtaining messages indicating the
existence of a girlfriend or boyfriend), and stores and restaurants frequented by
the defendant.
Interviews should be conducted of proprietors of businesses, stores, and
restaurants suggested by the review
of the cancelled checks to determine the extent of any expenditures made by the
defendant, cash or
otherwise.
The payees of checks should be interviewed to determine the extent of their
financial relationship with the
defendant and to preclude any later fabricated testimony that there were
nontaxable sources of funds for the
defendant (cashed checks for the defendant, made cash gifts or loans to the
defendant, etc.).
It is important to secure copies of the defendants deposit slips, as they will reflect
if the deposit was made in
cash and may reflect teller notations as to the types of bills used by the defendant
when making cash deposits.
The financial statements contained in loan files (that list the defendants assets,
including cash on hand, and
liabilities) will be helpful in establishing a starting point and in developing leads
to other financial
information. A review of credit reports will reflect all instances in which a
defendant applied for credit cards
(banks, charge companies, car dealers, etc.). Records should be subpoenaed from
these entities and it should
then be determined whether the defendant paid his credit card bills in cash. The
underlying credit card slips
will be useful to determine where the charges were incurred.
If the credit card slips reflect the names of rental car companies, the underlying
rental agreement should be
subpoenaed; this will reflect where the defendant stayed while traveling. Hotel
records should also be
subpoenaed to determine the manner in which the defendant paid the bill and any
local phone calls made by
the defendant (these could lead to other expenditures).
Subpoenaing the defendants passport will reflect foreign entry and exit records
and relevant Customs Service
records (currency and monetary instrument reports that are required whenever an
individual transports
currency over a certain amount in or out of the country).
If the defendant is a member of any professional organizations or has access to any
campaign funds, records
of this relationship should be secured in order to prevent and/or rebut any
subsequent claim that the
defendant obtained cash from these sources as reimbursement for personal
expense and used this cash during
the charged period.
Any statements of economic interest or other disclosure statements that the public
official is required to file
with the state or any public regulatory agency regarding loans, gifts, lists of
creditors, etc. should be obtained.
This will commit the defendant to a financial position and limit their ability to
provide bogus nontaxable
sources of cash later at trial. Reviews should be made of public probate records
(inheritances), insurance
records (loans against insurance policies, insurance settlements), and any other
leads to nontaxable sources.
U.S. v. Slutsky, 487 F.2d 832, 836, (2nd Cir.(N.Y.), Sep 24, 1973)
Upon appellants' continued failure satisfactorily to explain the excess of deposits over recorded income, Agent
Wood filed a report. The case was referred to the Intelligence Division of the IRS.
**The referral culminated in a thorough investigation headed by Special Agent David Empie. This investigation
utilized the bank deposits method. **This involves an analysis of all deposits made in bank accounts under the
control of the taxpayer, the total of which is adjusted to exclude transfers, loans, redeposits, and other identifiable
non-income items. Further subtractions are made for allowable exemptions and deductions. The resulting net taxable
income figure is compared against the *837 total taxable income reported.FN3 As summarized by the government at
trial, the investigation produced the following data in support of the alleged unreported income for each of the three
tax years involved:
FN3. This method of analysis necessarily closely tracks the requirements of trial proof which we discuss in greater
detail later in this opinion under Section III(A). See, e. g., United States v. Lacob, 416 F.2d 756, 759 (7 Cir. 1969),
cert. denied, 396 U.S. 1059 (1970).
Ben J. Slutsky et al.

Schedule of Alleged Unreported Income-Nevele
1965, 1966, 1967
Item Particulars
1965
1966
1 Total Bank Deposits
$6,548,213.68
$5,287,062.46
2 Less: Nonincome
3,283,910.71
998,361.76
Deposits and Items
1967
$6,310,260.18
1,707,471.99
3 Gross Receipts-Bank
Deposit Method
4 Cash-on-hand Less:
Balance-beginning of
year
3,264,302.97
4,288,700.70
4,602,788.19
78,688.84
193,346.46
206,772.39
4 Cash-on-hand Less:
Sub-Total
4 Cash-on-hand Add:
Balance-end of year
3,185,614.13
4,095,354.24
4,396,015.80
193,346.46
206,772.39
unknown
5 Gross Receipts-Bank
Deposit Method
(adjusted)
6 Less: Direct Costs
claimed on returns
3,378,960.59
4,302,126.63
4,396,015.80
2,146,562.42
2,746,645.27
2,771,463.63
7 Gross Profit
8 Less: Other expenses
and depreciation
claimed on returns
1,232,398.17
976,988.28
1,555,481.36
966,183.80
1,624,552.17
1,181,760.18
9 Partnership ordinary
income as corrected
255,409.89
589,297.56
442,791.99
10 Partnership ordinary
income as reported
(143,767.32)
111,387.09
87,816.67
11 Unreported Income
$ 399,177.21
$ 477,910.47
$ 354,975.32
The tax effect of the unreported income set forth in this summary was to increase the partnership share of each
appellant by $199,588.60 for 1965; $238,955.23 for 1966; and $177,487.66 for 1967. This resulted in a total alleged
personal tax deficiency for the three years involved of $369,136.83 for Julius Slutsky and of $391,945.19 for Ben
Slutsky.
A nine count indictment was returned November 2, 1972. FN4 At trial, the government claimed that the large
deficiencies stated above were the result of wilful fraud. In support of that theory, the government adduced evidence
describing*838 the Nevele's bookkeeping and accounting procedures. Ideally, all guest charges-the basic form of the
Nevele's income-would be recorded as received in a bill book. At the end of each day, Julius Slutsky would
reconcile the bill book with the physical cash received. He personally prepared the deposit slips. An adding machine
tape showing the total would then be given to Greco, the bookkeeper, who thereafter would post the receipts in a
cash on hand account in the Nevele's books. As the receipts were deposited in one or more of the bank accounts, or
otherwise disbursed, the disposition of the funds presumably would be posted accordingly-i. e., by crediting the cash
on hand account and debiting the appropriate disbursal account. The government's evidence showed, however, that
with respect to bank deposits only those deposits in one of the three accounts in the name of the Nevele were
properly recorded.
FN4. Count 1 charged Julius Slutsky with making and subscribing to a false partnership income return for
the year 1965. Counts 2 and 3 charged Ben Slutsky with making and subscribing to false partnership
income returns for the years 1966 and 1967. Counts 4, 5 and 6 charged Julius Slutsky with wilfully
attempting to evade personal income taxes for the years 1965, 1966 and 1967. Counts 7, 8 and 9 charged
Ben Slutsky with wilfully attempting to evade personal income taxes for the years 1965, 1966 and 1967.
The government's essential claim was that the unrecorded accounts served to mask large sums of money which
constituted income to the partnership. The evidence showed that, while the cash on hand account was the principal
stage at which the fraud was committed, the internal accuracy of that bookkeeping account nevertheless was
preserved by a system of parallel entries. Thus, certain cash receipts deposited in the recorded accounts would not be
posted in the cash on hand account; but subsequent deposits in the unrecorded accounts, in corresponding amounts,
were duly noted in the cash on hand account. This, according to the government's evidence, resulted in appellants
purporting to show that the amounts deposited in the unrecorded accounts had been properly recorded as income.FN5
The tax effect of the unreported income set forth in this summary was to increase the partnership share of each
appellant by $199,588.60 for 1965; $238,955.23 for 1966; and $177,487.66 for 1967. This resulted in a total alleged
personal tax deficiency for the three years involved of $369,136.83 for Julius Slutsky and of $391,945.19 for Ben
Slutsky.
A nine count indictment was returned November 2, 1972. FN4 At trial, the government claimed that the large
deficiencies stated above were the result of wilful fraud. In support of that theory, the government adduced evidence
describing*838 the Nevele's bookkeeping and accounting procedures. Ideally, all guest charges-the basic form of the
Nevele's income-would be recorded as received in a bill book. At the end of each day, Julius Slutsky would
reconcile the bill book with the physical cash received. He personally prepared the deposit slips. An adding machine
tape showing the total would then be given to Greco, the bookkeeper, who thereafter would post the receipts in a
cash on hand account in the Nevele's books. As the receipts were deposited in one or more of the bank accounts, or
otherwise disbursed, the disposition of the funds presumably would be posted accordingly-i. e., by crediting the cash
on hand account and debiting the appropriate disbursal account. The government's evidence showed, however, that
with respect to bank deposits only those deposits in one of the three accounts in the name of the Nevele were
properly recorded.
FN4. Count 1 charged Julius Slutsky with making and subscribing to a false partnership income return for
the year 1965. Counts 2 and 3 charged Ben Slutsky with making and subscribing to false partnership
income returns for the years 1966 and 1967. Counts 4, 5 and 6 charged Julius Slutsky with wilfully
attempting to evade personal income taxes for the years 1965, 1966 and 1967. Counts 7, 8 and 9 charged
Ben Slutsky with wilfully attempting to evade personal income taxes for the years 1965, 1966 and 1967.
The government's essential claim was that the unrecorded accounts served to mask large sums of money which
constituted income to the partnership. The evidence showed that, while the cash on hand account was the principal
stage at which the fraud was committed, the internal accuracy of that bookkeeping account nevertheless was
preserved by a system of parallel entries. Thus, certain cash receipts deposited in the recorded accounts would not be
posted in the cash on hand account; but subsequent deposits in the unrecorded accounts, in corresponding amounts,
were duly noted in the cash on hand account. This, according to the government's evidence, resulted in appellants
purporting to show that the amounts deposited in the unrecorded accounts had been properly recorded as income.FN5
And the court stated at p. ,

III.
SUFFICIENCY OF THE EVIDENCE
(A) ADEQUACY OF INVESTIGATION
In utilizing the bank deposits method of proof, the government necessarily relied on circumstantial evidence.
*840United States v. Doyle, 234 F.2d 788, 793 (7 Cir.), cert. denied, 352 U.S. 893 (1956). That imposes on us in
reviewing the convictions below the duty of bearing constantly in mind the difficulties that arise when
circumstantial evidence as to guilt is the chief weapon of a method [as with the net worth method] that is itself only
an approximation. Holland v. United States, 348 U.S. 121, 129 (1954). In the context of this case, we direct our
attention particularly to the adequacy of the foundation underlying the computations introduced by the government
and the propriety of the investigation that led to those computations. We hold that the bank deposits method of proof
in this case complied with the requirements of law and adequately supported the jury verdicts that resulted.
[6][7] The requirement of a full and adequate investigation in a bank deposits case is based on the similar
requirement in a net worth case. Holland v. United States, supra. Such investigation must establish a guarantee of
essential accuracy in the circumstantial proof at trial as an element of the government's burden of proving guilt
beyond a reasonable doubt. Kirsch v. United States, 174 F.2d 595, 601 (8 Cir. 1949). **Once the government
satisfies its burden of proving substantial deposits in excess of reported income, has given the taxpayer credit for
properly claimed and otherwise allowable deductions, and shows that it has taken all reasonable steps to eliminate
identifiable non-income items, the burden is then on the taxpayer to explain the remaining excess . United States v.
Lacob, 416 F.2d 756, 760 (7 Cir. 1969), cert. denied, 396 U.S. 1059 (1970).
Having these requirements in mind, we must examine the adequacy of the government's investigation. The
record shows that, as a result of the IRS' examination of the six bank accounts within appellants' control, it made the
following analysis:
1. Checking account in name of The Nevele at Sullivan County National Bank.
With the exception of two unidentified items totalling some $2,000, every item of the total $1,661,639.08
deposited in this account during the three taxable years was analyzed. More than $1.5 million was identified as nonincome. The remainder was charged as income.
2. Checking account in name of The Nevele at First National Bank and Trust Company of Ellenville.
Of the total $1,710,083.34 deposited in this account, more than $550,000 was identified as income to the
Nevele. That figure comprised 788 individual items of which 678 were items under $1,000. The IRS' investigation
of this account entailed an analysis of every item over $1,000 (with the exception of approximately $11,000), and a
random analysis of items under $1,000. Only $13,456.78 of the total deposits was identified and eliminated as nonincome.
3. Checking account in name of The Nevele at Ellenville National Bank.
In this, the major business account, more than $13 million was deposited during the three years in question. Of
the items over $1,000, the IRS analyzed all but $4,000. In addition, of the items under $1,000 (all of which had a
number encircled on the back of the checks), FN10 some 769 were randomly analyzed. The result was the elimination
of almost $3.8 million as non-income, the identification of over $800,000 as income, and the further charging as
income of almost $7.5 million in unidentified*841 items under $1,000. Some $1 million in currency deposited in
this account was also charged as income.
FN10. Irving Greene, the Nevele's front office manager, testified that a cashier, upon receiving a check
from a guest leaving the hotel, was instructed to write the guest's room number on the back of the check
and encircle that number.
4. Savings account in name of Ben or Julius Slutsky at Ellenville National Bank.
Of the total $996,297.82 deposited in this account, every item was identified. $19,500 was eliminated as nonincome. The remainder was charged as income.
5. Checking account in name of Julius or Alice Slutsky at Ellenville National Bank.
Of the total $326,687.75 deposited in this account, every item was identified. More than $230,000 was
eliminated as non-income. The remainder was charged as income.
6. Checking account in name of Alice Slutsky at Ellenville National Bank.
Of the total $360,929.44 deposited in this account, every item was identified. More than $170,000 was
eliminated as non-income. The remainder was charged as income.
In sum, of approximately $18 million in total deposits during the three years involved, more than $5.7 million
was eliminated as non-income,FN11 and the remainder was charged as gross income for purposes of the bank deposits
analysis. Of the total charged as income, almost $2.8 million was in specifically identified items. Almost $8.6
million, however, was in unidentified items, and a further $1 million was in currency. Appellants' principal attack on
the sufficiency of the government's investigation focuses on this large sum of unidentified checks and currency
charged as income.
FN11. In addition to the $5.7 million eliminated as the result of the government's own investigation, some
$180,000 attributed to leads and $47,000 attributed to guest returns were also eliminated.
[8][9] The adequacy of a bank deposits investigation necessarily turns on its own circumstances. The reported
cases indicate the kinds of factors that bear on the assessment of adequacy. **The critical question is whether the
government's investigation has been sufficiently adequate to support the inference that the unexplained excess in
receipts was in fact attributable to currently taxable income. Holland v. United States, supra, 348 U.S. at 137. In
proving its case, the government is not required to negate all possible non-income sources of the deposits,
particularly where the source of the income is uniquely within the knowledge of the taxpayer. At the same time,
however, the government may not disregard explanations of the defendant reasonably susceptible of being
checked. Id. at 138.
Thus, in United States v. Lacob, supra, the court upheld as adequate an investigation involving total deposits of
$99,000 by a lawyer who specialized in personal injury claims with fees ranging from 20% to 33 1/3 % . There, [o]f
$39,356.33 of substantial checks deposited but not identified or explained, defendant was charged with income of
$7,871.27, or 20%, because it was assumed, in the absence of other proof, that these were proceeds of cases. . . .
416 F.2d at 758. Similarly, in United States v. Procario, 356 F.2d 614 (2 Cir.), cert. denied, 384 U.S. 1002 (1966),
where almost half of the total alleged professional receipts were in the form of deposits unidentified by the
government, we said:
The government relied on the fact that it excluded all possible dividends, on the small size and relative
frequency of the deposits, similar to deposits and other income proven to be professional receipts, and on the fact
that appellant had patients other than those whose payments were included in . . . the directly proven items of
income. This was sufficient. 356 F.2d at 618.
[10] We hold that the government's investigation here was clearly sufficient *842 under the particular
circumstances of the case. FN12 Analysis of the nature of the business in which appellants were engaged revealed that
most income items were in amounts under $1,000. Accordingly, the investigation included a detailed check of every
item in an amount greater than $1,000, with very few specified exceptions. In addition, a random check of 1447
items in amounts less than $1,000 was made; and the analyzed items were found to constitute income in virtually
every instance. Moreover, a further examination of the business accounts disclosed that almost every item in an
amount under $1,000 was reflected by a check with a room number encircled on the back; according to the record,
this specifically identified these items as guest receipts and therefore income. To hold the government to a stricter
duty of investigation than it performed here would be to ignore both the reasonableness and fairness strictures
that have been imposed; it would also result in an exercise in diminishing returns in terms both of the provision of
relevant information to the fact-finder and of the protection of the rights of taxpayers.
FN12. Appellants' contention to the contrary is undermined to a significant degree by the testimony of
Nathan Frankel, an accountant who conducted a two year investigation of appellants' books after being
retained by appellants. Frankel testified that he discovered even fewer non-income items than had the
government. And significantly he did not check any of the reported accounts despite assistance by a staff of
eight.
[11][12][13] Appellants' attack upon the sufficiency of the government's investigation appears further to have
misconstrued the essence of the bank deposits method of proof. [O]nce the Government proves unreported receipts
having the appearance of income, and gives the defendant credit for the deductions he claimed on his return, as well
as any others it can calculate without his assistance, the burden is on the defendant to explain the receipts, if not
reportable income, and to prove any further allowable deductions not previously claimed. United States v. Lacob,
supra, 416 F.2d at 760. (emphasis added). Put another way, once the existence of unreported receipts is established,
the defendant remains quiet at his peril. Holland v. United States, supra, 348 U.S. at 139. Proof of the exact
amount of the understatement is not required, United States v. Johnson, 319 U.S. 503, 517 (1934); United States v.
Pawlak, 352 F.Supp. 794, 796 (S.D.N.Y.1972), nor is there any duty to negate all non-income sources of unreported
receipts. United States v. Doyle, supra, 234 F.2d at 794. Once the government showed that appellants' accounting
system was such as to permit the non-disclosure of income, as well as the existence of substantial amounts of excess
deposits which, after reasonable investigation, had the appearance of income, that was sufficient to warrant
submitting the case to the jury.
We hold that the government adequately sustained its burden in this case.
(B) OPENING CASH ON HAND
[14][15] As in a net worth case, Holland v. United States, supra, 348 U.S. at 132-35, an essential element of the
government's burden of proof in a bank deposits case is to establish an accurate cash on hand figure for the
beginning of the taxable year. If the taxpayer's deposits or other expenditures during the relevant year came from a
safety deposit box in a bank or from a hoard at home, obviously they are not income when taken from their storage
place and deposited in a checking account nor when spent. United States v. Frank, 245 F.2d 284, 287 (3 Cir.), cert.
denied, 355 U.S. 819 (1957). Thus, the government must prove with reasonable certainty the amount of undeposited
cash at the beginning of the year so that an appropriate amount may be subtracted from the total of deposits made
during the taxable year.FN13

FN13. By the same token, the cash on hand at the end of the taxable year must be added to the sum of
deposits to reflect the total income for that year. That procedure was followed by the government in this
case.
*843 [16] In the instant case, the government alleged cash on hand at the beginning of 1965 of $78,688.84, a
figure taken directly from the Nevele's general ledger. Appellants mount a two-tiered attack on that figure. First,
they contend that the government's own proof demonstrated the inaccuracy of the cash on hand account in the
Nevele's books-the source of the figure used-and that therefore the proper foundation for the resulting computation
is lacking. Second, they argue that the government was informed by appellants of the source of the inaccuracy and
that the failure to utilize that information violated the leads doctrine of Holland.FN14 We hold that the record
supports the use of the opening figure relied on by the government.
FN14. At one time there was some doubt as to the applicability of the leads doctrine to a bank deposits
case. In United States v. Procario, 356 F.2d 614, 617 (2 Cir.), cert. denied, 384 U.S. 1002 (1966), for
example, we noted the argument but found no need to resolve it upon the facts of that case. The contention
that the leads doctrine should be confined to a net worth case is no longer tenable. See, e. g., United
States v. Ramsdell, 450 F.2d 130, 133 (10 Cir. 1971); United States v. Stein, 437 F.2d 775, 778 (7 Cir.),
cert. denied, 403 U.S. 905 (1971).
Appellants' essential contention is that the evidence showed the inherent unreliability of the cash on hand
account in that the account was not properly credited when deposits were made in any of the three accounts not
recorded in the Nevele's books. This resulted, according to appellants, in a double computation of large sums of
money: once in the sum of deposits in those accounts and again in the use of the cash on hand account itself as an
index of receipts. Whatever merit there might be in this contention if the government had relied solely on the figure
in the cash on hand account to establish an opening cash on hand amount, the record clearly demonstrates sufficient
corroboration to have warranted submission of the case to the jury.
First, as stated above, the proof adduced by the government which showed the manner in which appellants were
able to conceal substantial sums of income alleged to have been unreported was sufficient to demonstrate that the
integrity of the cash on hand account was maintained despite its use in the fraudulent scheme. Second, and of critical
importance, independent evidence was introduced by which the validity of the figure shown in the cash on hand
account could be tested. Specifically, the government demonstrated that in each of the years in question the deposits
in the two principal business accounts during the first few days of the new year were consistent with the amount of
cash indicated in the ledger account. And, finally, the cash on hand account figure was authenticated by the in-house
investigation conducted by Nathan Frankel, an accountant retained by appellants subsequent to the commencement
of the IRS audit. Frankel, it should be noted, had the additional benefit of full access to all of the Nevele's books and
records, a privilege not afforded the government.FN15
FN15. The government's pre-trial motion to require production of the books was denied on the ground of
appellants' privilege against self-incrimination. United States v. Slutsky, 352 F.Supp. 1105, 1108
(S.D.N.Y.1972).
[17] Accordingly, apart from making the opening cash on hand figure sufficiently reliable to allow the jury to
consider the evidence, the factors enumerated above more than adequately negate appellants' contention that the
government failed to follow up leads provided by appellants. The leads doctrine, as outlined in Holland v. United
States, supra, 348 U.S. at 135-36, places on the government a duty of effective negation of reasonable explanations
by the taxpayer inconsistent with guilt-a duty limited to the investigation of leads reasonably susceptible of being
checked which, if true, would establish the taxpayer's innocence. Here, the leads furnished by appellants, such as
they were, were not directed as much *844 at the inaccuracy of the cash on hand account as against the alleged
invalidity of the government's entire theory of tax evasion. In every practical sense, the ensuing investigation, which
we hold to have been full and fair, consisted of a tracking down of the explanations offered by appellants. The
essence of the government's investigation was a detailed study of the use of the cash on hand account. This led to the
conclusion, bolstered by independent evidence, that the explanation offered by appellants was untrue. To require the
government to do more would be to ignore the element of reasonableness embodied in the leads doctrine.
[18] We hold that the government fully discharged its duty to investigate the leads furnished by the taxpayers,
and that the resulting evidence was sufficient to establish with reasonable certainty the accuracy of the cash on hand
figure used.
**Under the bank deposits plus cash expenditures method of income
reconstruction, gross income is derived for tax purposes by adding together
all bank deposits made by the taxpayer during the tax year in question,
subtracting the nontaxable amounts, and adding expenditures made from cash
that were never deposited into the bank.18
Choi v. C.I.R., 379 F.3d 638, 639, (9th Cir., Aug 10, 2004)
Background: Taxpayers petitioned for redetermination of deficiencies arising from understated income, penalties,
unpaid self-employment tax, and improperly taken dependent deduction. The Tax Court, Gerber, J., 2002 WL
1765991, upheld decision of the Internal Revenue Service (IRS), and taxpayers appealed.
Holding: The Court of Appeals, Schroeder, Chief Judge, held that bank deposits plus cash expenditures method of
income reconstruction could be used in determining income from taxpayers' grocery store.
Affirmed.
West Headnotes
[1] Internal Revenue 220
4529
220 Internal Revenue

220XXI Assessment of Taxes
220XXI(A) In General
220k4529 k. Income and Profits Taxes, Computation in General. Most Cited Cases
**Under the bank deposits plus cash expenditures method of income reconstruction, gross income is derived
for tax purposes by adding together all bank deposits made by the taxpayer during the tax year in question ,
subtracting nontaxable amounts, and adding expenditures made from cash that was never deposited into the bank.
4529

220XXI Assessment of Taxes
220XXI(A) In General
220k4529 k. Income and Profits Taxes, Computation in General. Most Cited Cases
**Under the bank deposits plus cash expenditures method of income reconstruction, gross income is derived
for tax purposes by adding together all bank deposits made by the taxpayer during the tax year in question ,
subtracting nontaxable amounts, and adding expenditures made from cash that was never deposited into the bank.
[1] On appeal to this court, the principal challenge is to the use of the bank deposits plus cash expenditures
method of income reconstruction. Under this method, gross income is derived by adding together all bank deposits
made by the taxpayer during the tax year in question, *640 subtracting nontaxable amounts, and adding expenditures
made from cash that was never deposited into the bank. United States v. Brickey, 289 F.3d 1144, 1152 (9th Cir.2002).
48 Am. Crim. L. Rev. 1201

American Criminal Law Review
Spring, 2011
Article
*1201 TAX VIOLATIONS
A simple variant of the net worth method is the **cash expenditures
method.68 Under this method, the government seeks to demonstrate that the
taxpayers expenditures taken from taxable income exceed the income
reported by the taxpayer.69 Rather than locating the exact source of
unreported income, the *1212 government merely needs to establish a
likely source of unreported income or negate reasonably possible
nontaxable sources of income.70 The cash expenditures method does not
require the government to prepare a formal net worth statement, similar to
that used under the net worth method.71
The bank deposits method requires the government to conduct a full
investigation of the taxpayers bank accounts and compare taxable deposits
with reported income.72 A jury may infer tax evasion from the difference
between the two amounts.73
Fed. Taxn Income, Est.& Gifts 107.3
*1 Federal Taxation of Income, Estates and Gifts
Current Through 2011
Boris I. Bittkera, Lawrence Lokkenb
2011 Thomson/RIA. All rights reserved.
Part 15. Accounting Methods and Periods
Chapter 107. Indirect Methods of Computing Income
107.3 CASH EXPENDITURES METHOD
Instead of a net worth computation, the IRS may determine the taxpayers income by **the cash expenditures (or
application and source of funds) method, under which the taxpayers nondeductible expenditures for living
expenses, investments, and other items are added together, reported income is subtracted, and **any balance is
considered unreported income. According to the Tax Court:
The cash expenditures method is based on the assumption that the amount by which a taxpayers expenditures
during a taxable year exceed his reported income has taxable origins absent some explanation by the taxpayer ....The
relevant issue in a cash expenditures case is whether any expenditures in excess of reported income can be attributed
to assets available at the beginning of the period or to nontaxable receipts , such as loans, gifts, or inheritances. [The
IRS] does not have to negate every possible source of nontaxable income if [it] proves a likely source of income. 1
This procedure is better viewed as a variant of the net worth method than as a separate method. Increases in the
taxpayers assets and decreases in liabilities during the period represent funds expended, while decreases in assets
and increases in liabilities are nontaxable sources of funds. As a result, the expenditures method is simply another
way of presenting the raw materials used in a net worth computation. However, although assets held at the beginning
of the year are a possible source of nontaxable funds that might be spent during the year, a precise computation of
opening net worth is not essential to the methods application.2
The relationship between this method and the net worth method is illustrated by Example 107-2, which applies the
cash expenditures method to the data used in the net worth computation of Example 107-1. 3 The only difference
between the two is the omission of the taxpayers personal residence ( Example 107-1, line 1d) from Example 1072, but this item could also be omitted from Example 107-1 without affecting the result.
EXAMPLE 107-2 Application and Source of Funds (Based on Facts of Example 107-1 )
1. Application of funds
a. Securities purchased ( Example 107-1, line 1c as of 12/31/92 less line 1c as of 12/31/91)
$200
b. Swimming pool ( Example 107-1, line 1e)
150
c. Principal paid on bank loan ( Example 107-1, line 2a)
100
d. Principal paid on residence mortgage ( Example 107-1, line 2b)
20
e. Living expenses ( Example 107-1, lines 4a and 4b)
150
f. Federal income tax withheld ( Example 107-1, line 4c)
50
g. Total funds applied
$650
2. Funds available from known sources

a. Reduction in bank balance ( Example 107-1, line 1a)
$20
b. Undeposited cash ( Example 107-1, line 1b)
50
c. Bequest ( Example 107-1, line 5a)
50
d. Reported taxable income plus personal and dependency exemptions ( Example 107-1, lines 5b
and 5d)
304
e. Total funds available from known sources
$424
3. Understatementunreported income (line 1g less line 2e)
$246
*2 It is sometimes said that the net worth method cannot be used to reconstruct the income of taxpayers who
consume rather than invest their unreported receipts and hence wind up no wealthier than before 4 and, conversely,
that the cash expenditures method is not appropriate for taxpayers who invest rather than consume their receipts.
Both propositions, however, are demonstrably wrong. As Example 107.3 discloses, the net worth method takes
account of both net worth increases (or decreases) and nondeductible cash expenditures; so does the application and
source of funds method, as shown by Example 107-2. Since the two are functionally equivalent, differing only in the
presentation of the data, suggestions that the cash expenditures method dispenses with the need for an opening net
worth or entails a different burden of proof are unreliable generalizations, although they may be warranted in the
special circumstances of particular cases. 5 Similarly, safeguards necessary to avoid abuse of the net worth method
are equally necessary in applying the cash expenditures method.
The application and source of funds method should be distinguished from another technique, entailing a day-by-day
analysis of the taxpayers cash expenditures in order to detect the use of unreported income in particular
transactions. For example, if the taxpayer in Example 107-1 sold the residence owned at the beginning of the taxable
year for its cost of $500 and used the proceeds to purchase a second residence for the same amount, the computation
would be unaffected. But if the second residence was purchased for $500 in cash before the first residence was sold,
an alert revenue agent would want to know where the taxpayer obtained the necessary funds because the opening net
worth statement discloses undeposited cash of only $50. An inquiry might reveal that the taxpayer borrowed to pay
for the second residence and repaid the loan when the first residence was sold, but another possibility is that the
taxpayers unreported income was $500 greater than the amount as computed and that the excess was held as
undeposited cash and used for living expenses or invested in assets not yet unearthed. These possibilities suggest the
need for further investigation.
U.S. v. Sutherland, 929 F.2d 765, 780, (1st Cir.(Mass.), Mar 26, 1991)
One defendant was convicted of conspiracy to distribute cocaine and marijuana, and second defendant was
convicted of distributing marijuana, conspiracy to distribute cocaine and marijuana, and two counts of tax evasion,
in the United States District Court for the District of Massachusetts, Frank H. Freedman, Chief Judge, and
defendants appealed. The Court of Appeals, Torruella, Circuit Judge, held that: (1) tape recordings were admissible
in federal prosecution even if they were obtained by state law enforcement personnel in violation of Massachusetts
statute; (2) lack of evidence showing that first defendant had distributed marijuana did not require reversal of
conviction for conspiracy to distribute cocaine and marijuana; (3) prosecutor's improper comment that defendant
made a lot of purchases that he could not explain was harmless and did not warrant new trial; and (4) trial court
properly declined to sever the two tax evasion counts from defendants' joint trial on drug charges.
Affirmed.
5298

220XXXII Offenses
220XXXII(B) Criminal Prosecution
220k5297 Evasion of Taxes, Weight and Sufficiency
**Expenditures method of proving tax evasion requires that Government demonstrate that defendant's
expenditures did not result from cash on hand or the conversion of assets on hand at beginning of period, establish
through independent evidence that expenditures charged to defendant were nondeductible, establish likely source of
income from which expenditures sprang or negate nontaxable sources of income, and investigate all relevant leads
reasonably susceptible to being checked.
**The expenditures method requires that the government: (1) demonstrate that the appellant's expenditures did not
result from cash on hand, or the conversion of assets on hand at the beginning of the period; (2) establish through
independent evidence that the expenditures charged to the appellant were non-deductible; (3) establish a likely
source of income from which the expenditures sprang, or negate non-taxable sources of income; and (4) investigate
all relevant leads reasonably susceptible to being checked. Taglianetti v. United States, 398 F.2d 558, 562 (1st
Cir.1968), aff'd, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969).

Penal Code Section 1054 Authorities

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**12. ---- Time of disclosure

imprisonment, obstructing telephone, and being felon in possession of firearm;

P.C. 1054.5. Criminal cases; discovery orders; informal request;

110 Criminal Law

110 Criminal Law

[2] Criminal Law 110

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110XX(C) Reception of Evidence

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

And the court stated at p. ,

L.Ed.2d 956 (U.S.Ill. Jan 29, 1968)

110 Criminal Law

MR. PRIDE: I have a right to know if it is his correct name.

Construction and Application of Sixth Amendment Confrontation Clause--Supreme Court Cases, 83

A.L.R. Fed. 2d 385 (2014) HN: 12 (S.Ct.)

1209 Comment Note.--Impeachment of witness by evidence or inquiry as to arrest, accusation, or

110 Criminal Law

306 Postal Service

Mr. Friedman: I have no doubt of that.

76 alr 2d 262 accued right to prosecutors priv against discl of identity

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction, 34

A.L.R.3d 16 (1970) HN: 2 (S.Ct.)

Prosecutorial Misconduct s 5:20, False testimony-Applicable principles (2014) HN: 2 (S.Ct.)

**8. F. THE FAILURE OF A PROSECUTOR, OR ANY AGENCY ACTING ON THE

**25. Failure of State Prosecutor to Disclose Exculpatory Photographic Evidence as Violating

**34. THE PROSECUTIONS DUTY TO PRESERVE EVIDENCE BEFORE TRIAL

**39. OMNIBUS PROCEEDINGS IN FEDERAL COURT

Governments Constitutional Disclosure Duties. Defendants have no general constitutional right to

failure to disclose due process violation established

19. Alvarado v. Superior Court

**24. Malone v. Kramer

25. Connick v. Thompson

34. Cone v. Bell

**36. Fonseca v. Hall

110 Criminal Law

110 Criminal Law

110 Criminal Law

110XX(A) Preliminary Proceedings

C. Cunningham's DeliberateFabricationofEvidence Claim

38. Jackson v. Brown

42. Giglio v. U.S.

197 Habeas Corpus

Woods v. Adams, 2010 WL 3789546, p. 4, (C.D.Cal., Jul 30, 2010)

III. PETITIONER'S CLAIMS

And the court stated at p. 5,

63. Moore v. Illinois

64. Reid v. Superior Court

victims was not justified.

67. Smith v. Cain

78. People v. Doolin

85. People v. Earp

103. People v. Harris

**107. People v. Salazar

108. People v. Hayes

prosecutions peremptory challenges of...

116. People v. Burgener