United States v. Alva Dotson Bennett, 702 F.2d 833 (9th Cir. 1983). · Go Syfert
United States v. Alva Dotson Bennett, 702 F.2d 833 (9th Cir. 1983). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 2002 · …in light of the evidence of guilt. at p. 835
42 citation events (9 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Roy M. Porter, Benjamin F. Gay III (ca9, 1992-06-16)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Roy M. Porter, Benjamin F. Gay III (2×) also: Cited as authority (rule)
9th Cir. · 1992 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
this one instance of error, viewed in the entire context of a case where there is substantial evidence of guilt, does not require reversal.
discussed Cited as authority (rule) Joshua Radwan v. County of Orange
9th Cir. · 2013 · confidence medium
See Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir.1991); United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983). 4.We do not decide whether the rule against vouching applies to civil trials because, even if certain of defense counsel’s statements would constitute vouching, any prejudice was dissipated by Radwan’s counsel’s objection, the court sustaining the objection, and the court instructing the jury that attorneys are not permitted to vouch and that attorney arguments do not constitute evidence.
discussed Cited as authority (rule) United States v. Scott
9th Cir. · 2011 · confidence medium
“Before a jury’s verdict will be overturned because of the conduct of a trial judge in rebuking or punishing an attorney or otherwise intervening in the proceedings, it must appear that the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party.” United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Rosen (2×)
C.D. Cal. · 2005 · confidence medium
United States v. Segall, 833 F.2d 144, 147 (9th Cir.1987) (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)). “[E]aeh false document made or submitted may be charged as a separate violation of 18 U.S.C. § 1001 .” United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983).
discussed Cited as authority (rule) United States v. Laimeche
9th Cir. · 2003 · confidence medium
The false statements alleged in each count were contained in different documents, see United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983), and concerned different matters within the jurisdiction of the United States.
discussed Cited as authority (rule) United States v. Marcellus Aaron Elder (2×)
9th Cir. · 2002 · confidence medium
It is true that in cases of minimal or negligible prejudice, we have considered the possible prejudice "in light of the evidence of guilt." United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983); see also Poland, 659 F.2d at 894 .
discussed Cited as authority (rule) United States v. Fernando Figueroa-Mendoza (2×) also: Cited "see"
9th Cir. · 1996 · confidence medium
Furthermore, judicial intervention only merits reversal where it is "clearly prejudicial" as assessed "in light of the evidence of guilt." United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983) (quotation marks and citations omitted); see also United States v. Milner, 962 F.2d 908, 912 (9th Cir.1992) (no reversal unless prejudice), cert. denied, 506 U.S. 1004 (1992). 6 On the other hand, a number of cases state that "[a] trial court commits reversible error when it expresses an opinion on an ultimate issue of fact in front of the jury or it argues for one of the parties." See, e.g., Shad v…
discussed Cited as authority (rule) United States v. Mavroules
D. Mass. · 1993 · confidence medium
United States v. Matanky, 482 F.2d 1319, 1322 (9 Cir.), cert. denied, 414 U.S. 1039 , 94 S.Ct. 539 , 38 L.Ed.2d 329 (1973); United States v. UCO Oil Co., 546 F.2d 833, 838-39 (9 Cir.), cert. denied, 430 U.S. 966 , 97 S.Ct. 1646 , 52 L.Ed.2d 357 (1977); United States v. Bennett, 702 F.2d 833, 835 (9 Cir., 1983).
discussed Cited as authority (rule) United States v. Russell Lee Keith
9th Cir. · 1992 · confidence medium
Before this court will find that a defendant has been denied his Sixth Amendment rights to effective counsel and a fair trial "because of the conduct of a trial judge in 'rebuking or punishing [counsel]' or otherwise intervening in the proceedings, 'it must appear that the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party.' " United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983) (quoting United States v. Eldred, 588 F.2d 746, 750 (9th Cir.1978)) (fair trial); see also United States v. Burt, 765 F.2…
discussed Cited as authority (rule) Ruben W. Espinoza v. Wayne Seifert
9th Cir. · 1992 · confidence medium
Espinoza's litany of the trial judge's wrongdoing includes: failure to remain neutral during trial; misconstruing the record; ruling incorrectly from the bench on various evidentiary matters; and erroneously adopting the government's position that Espinoza's section 2255 motion was without merit. 3 Before a verdict will be overturned because of judicial misconduct, "it must appear that the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party." United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983) (quo…
discussed Cited as authority (rule) United States v. Wood
W.D. Ark. · 1991 · confidence medium
Other circuits have found an insufficient showing in cases where counsel for the defendant stated “his ‘understanding’ that the grand jury which had returned the indictment was not the grand jury which had heard the witnesses” but offered no factual support for that “ ‘understanding,’ ” see United States v. Fife, 573 F.2d 369, 372 (6th Cir.1976), cert. denied, 430 U.S. 933 , 97 S.Ct. 1555 , 51 L.Ed.2d 777 (1977); where the defendant’s “assertion of impropriety” in the grand jury proceedings, “based only on the speed with which the indictment was returned,” was “mere…
discussed Cited as authority (rule) United States v. Hardy
D. Haw. · 1991 · confidence medium
“It is not sufficient for [movant] to assert that he has no way of knowing whether prosecuto-rial misconduct occurred.” DeTar, 832 F.2d at 1113 (citing United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983)).
discussed Cited as authority (rule) United States v. Gerald Michael Dini (2×) also: Cited "see"
9th Cir. · 1989 · confidence medium
United States v. Green, 698 F.2d 1364, 1375 (9th Cir.1983). 19 Judicial misconduct requires reversal only if "the conduct measured by the facts of the case presented together with the result of the trial was clearly prejudicial to the rights of the party." United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983).
cited Cited as authority (rule) United States v. Michael James Olsowy
9th Cir. · 1988 · confidence medium
United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983).
cited Cited as authority (rule) United States v. John H. Detar, M.D.
9th Cir. · 1987 · confidence medium
United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983).
cited Cited as authority (rule) United States v. Michael James Olsowy
9th Cir. · 1987 · confidence medium
United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983).
discussed Cited as authority (rule) United States v. David P. Twomey
1st Cir. · 1986 · confidence medium
However, this single comment, made in the course of a long and well-conducted trial, falls far short of reversible error, which will be found only if judicial intervention is substantial, United States v. Robinson, 687 F.2d 359, 361 (11th Cir.1982); see also United States v. Smith, 561 F.2d 8, 14 (6th Cir.1977), cert. denied, 434 U.S. 958 , 98 S.Ct. 487 , 54 L.Ed.2d 317 , 434 U.S. 972 , 98 S.Ct. 524 , 54 L.Ed.2d 461 (1977), 434 U.S. 1019 , 98 S.Ct. 741 , 54 L.Ed.2d 766 , 434 U.S. 1048 , 98 S.Ct. 897 , 54 L.Ed.2d 800 (1978), and interferes with a defendant’s right to a fair trial. 3 United St…
cited Cited as authority (rule) United States v. Burt
9th Cir. · 1985 · confidence medium
United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983).
discussed Cited as authority (rule) United States v. Bradford J. Burt
9th Cir. · 1985 · confidence medium
United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983). 10 At best, the record demonstrates that the judge's remarks to counsel may have unnerved him and made it difficult for him to serve his client to the full extent of his ability.
discussed Cited as authority (rule) United States v. Louella G. Solomon, United States of America v. John Elias Wesley
9th Cir. · 1985 · confidence medium
If the same act constitutes a violation of two different statutes, the test to determine whether punishment for both offenses may be imposed is “whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932); United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983).
discussed Cited as authority (rule) United States v. David W. Warren
10th Cir. · 1984 · confidence medium
For other cases where courts have held that the defendant has not made a sufficiently strong showing to justify disclosure of grand jury materials, see Lucas v. Turner, 725 F.2d 1095, 1099-1109 (7th Cir.1984); United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983); Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1093 (7th Cir.1982); In re Grand Jury Matter, 682 F.2d 61, 63-67 (3d Cir.1982).
discussed Cited as authority (rule) United States v. Gerald M. Schaflander, United States of America v. Stephen M. Wright (2×) also: Cited "see"
9th Cir. · 1983 · confidence medium
The district court’s questioning here would require reversal if “the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party.” United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983), quoting United States v. Eldred, 588 F.2d 746, 750 (9th Cir.1978).
cited Cited "see" United States v. Derna Wong Wylde, A/K/A Derna Wong
9th Cir. · 1998 · signal: see · confidence high
See United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983). 6 Wylde's motion to expand the record on appeal is denied.
cited Cited "see" United States v. Jerry Alfred Whitworth
9th Cir. · 1988 · signal: see · confidence high
See United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983); United States v. Kenny, 645 F.2d 1323, 1344 (9th Cir.), cert. denied, 452 U.S. 920 , 101 S.Ct. 3059 , 69 L.Ed.2d 425 (1981).
discussed Cited "see, e.g." James Reyer v. William G. Todd City of Santa Rosa Willard Lien Service
9th Cir. · 1993 · signal: see also · confidence medium
See Robinson v. United States, 401 F.2d 248, 252 (9th Cir.1968); see also United States v. Bennnett, 702 F.2d 833, 836 (9th Cir.1983) (judgment will be overturned only where judicial conduct was "clearly prejudicial"). 7 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
discussed Cited "see, e.g." United States v. Katherine J. Segall, A/k/a: Katherine J. Coady
9th Cir. · 1987 · signal: see also · confidence medium
UCO Oil Co., 546 F.2d at 839 ; see also United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983) (upholding multiple convictions for submitting subsequent documents summarizing earlier false statements).
discussed Cited "see, e.g." Ernest C. Williams v. A. Mensey R. Bordeaux J. Simmons v. Vaughn Armstrong W. Pecha St. Louis County Edward M. Moreland William Breeding
8th Cir. · 1986 · signal: see also · confidence medium
See also United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983) (“It was justifiable for the trial judge to reprimand defense counsel for holding a document in his hand during cross-examination in a way designed to suggest that it was a report he was reading from, where he had been told in a prior sidebar conference to avoid precisely this tactic”).
discussed Cited "see, e.g." United States v. Reed
D. Maryland · 1985 · signal: see also · confidence medium
See also United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983); United States v. Ward, 696 F.2d 1315, 1319 (11th Cir.), cert. denied, 461 U.S. 934 , 103 S.Ct. 2101 , 77 L.Ed.2d 308 (1983); United States v. Neal, 692 F.2d 1296, 1306 (10th Cir.1982); Andiarena v. Keohane, 691 F.2d 993, 995 (11th Cir.1982).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Alva Dotson BENNETT, Defendant-Appellant
81-1662.
Court of Appeals for the Ninth Circuit.
Mar 30, 1983.
702 F.2d 833
1983 U.S. App. LEXIS 29263
Donald B. Marks, Marks & Brooklier, Beverly Hills, Cal., for defendant-appellant., Henry H. Rossbacher, Los Angeles, Cal., for plaintiff-appellee.
Wright, Wallace, Kennedy.
Cited by 31 opinions  |  Published
KENNEDY, Circuit Judge:

Appellant, Alva Dotson Bennett, was indicted with accomplices and tried on one count of conspiracy, 18 U.S.C. § 371, forty-nine counts of making false statements to the United States Department of Labor, 18 U.S.C. § 1001, seven counts of theft and embezzlement of CETA funds, 18 U.S.C. § 665(a), and two counts of filing false income tax returns, 26 U.S.C. § 7206(1). We affirm his convictions.

Bennett was secretary-treasurer of Teamsters Union Local 911. The criminal charges were for participating in a scheme to defraud the Government of funds appropriated under CETA. The first part of the fraud was to bill the CETA program for work purportedly done by defendant’s collaborators and codefendants. The money so generated was kicked back to Bennett. The second part of this scheme involved salaries of four teamster employees. Bennett misrepresented facts in order to collect salaries for four employees for work in fact not performed.

The kickbacks to Bennett included a series of payments by a company which administered the program. Bennett did not report these payments on his tax return. Also included in the unreported income was a check he received from a codefendant. That payment was unrelated to the CETA fraud scheme.

Bennett’s first contention is that charging him both with infractions of 18 U.S.C. § 665(a) and 18 U.S.C. § 1001 violates the double jeopardy clause. We reject that claim.

The double jeopardy clause is not violated where separate charges are based on statutes, each of which requires proof of a fact the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Dixon v. Dupnik, 688 F.2d 682, 684 (9th Cir.1982). The Blockburger test is met “notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17,43 L.Ed.2d 616 (1975). The two statutes involved here, 18 U.S.C. § 665(a) and 18 U.S.C. § 1001, do meet the Blockburger test for separate charges. The statutory elements of 18 U.S.C. § 665(a) not required to be proved under § 1001 include, for example, the requirement that the defendant be connected with an agency receiving financial assistance under CETA. The statutory elements of 18 U.S.C. § 1001 not part of § 665(a) include an affirmative act of falsifying or concealing a material fact; the making of a false, fictitious, or fraudulent statement or representation; or the making or use of a false writing or document.

The defendant also contends that it was reversible error to join the fraud and tax evasion counts. Since the codefendants pleaded guilty and defendant was tried alone, the controlling joinder rule is Fed.R. Crim.P. 8(a), which sanctions the joinder of all offenses that are of “the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 8(a) is clearly met here. The tax evasion counts were offenses of the same character, and they were occasioned mostly by the necessity of concealing the illegal proceeds of the offenses charged in the remaining counts.

Appellant argues that the indictment was multiplicitous in that it charged him for the same offense in several separate counts. Counts 2-45 charged the appellant with submitting certain misleading invoices. Counts 46-50 charged him with submitting close-out reports that are summations of these misleading invoices. In United States v. UCO Oil Co., 546 F.2d 833, 839 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977), we held that each false document made or submitted may be charged as a separate violation of 18 U.S.C. § 1001. The counts charged separate offenses under this rule, and they are not multiplicitous.

[*836] The district court properly denied the defendant’s motion for discovery of grand jury transcripts. To obtain disclosure, the defense must show “a particularized need” for the grand jury materials requested. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). The defendant’s assertion that he has no way of knowing whether prosecutorial misconduct occurred does not constitute a particularized need outweighing the need for grand jury secrecy.

The district court did not improperly restrict the scope of cross-examination in this case. “[T]he test as to ‘whether the trial court’s ruling violated the sixth amendment is whether the jury had in its possession sufficient information to appraise the biases and motivations of the witness.’ ” Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir.1980). That test is met in the present case.

Finally, the defendant complains that the district judge’s conduct during the trial conveyed the impression of bias to the jury, denying him a fair trial. Before a jury’s verdict will be overturned because of the conduct of a trial judge in “rebuking or punishing an attorney” or otherwise intervening in the proceedings, “it must appear that the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party.” United States v. Eldred, 588 F.2d 746, 750 (9th Cir.1978). The assessment is to be made, moreover, in light of the evidence of guilt. United States v. Poland, 659 F.2d 884, 886, 894 (9th Cir.), cert. denied, 454 U.S. 1059,102 S.Ct. 611, 70 L.Ed.2d 598 (1981).

The cited instances of alleged judicial misconduct do not warrant reversal. It was justifiable for the trial judge to reprimand defense counsel for holding a document in his hand during cross-examination in a way designed to suggest that it was a report he was reading from, where he had been told in a prior sidebar conference to avoid precisely this tactic. All of the other reprimands but one took place outside the presence of the jury and were not prejudicial. In one instance, the trial judge’s conduct was improper. He improperly rebuked defense counsel for asking that a witness’s unresponsive answer be stricken. The answer was in fact stricken later on. This one instance of error, viewed in the entire context of a case where there is substantial evidence of guilt, does not require reversal.

AFFIRMED.