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United States v. Reddick

*fn*: March 12, 1980.


Appeal from the United States District Court for the Western District of Wisconsin. No. 78-Cr-64 -- James E. Doyle, Judge .

Before Bauer, Wood, and Cudahy, Circuit Judges.

Author: Cudahy

Defendant-appellant Norman C. Reddick was convicted of mail fraud in violation of 18 U.S.C. § 1341. The fraudulent scheme alleged in the indictment related to defendant's marketing in Wisconsin of a utility rate and cost consulting service which he claimed would save subscribers money on their utility bills. Defendant sought authorization under 18 U.S.C. § 3006A(e)(1)*fn1 for an investigator to locate and interview potential witnesses among his former customers in California, where he had marketed similar consulting services from 1967 until June, 1977, when he moved to Wisconsin. The magistrate denied this motion without prejudice, finding that defendant had made an insufficient showing of necessity for the services. On appeal, defendant urges that in rejecting his request, the magistrate incorrectly applied the relevant statutory standard and violated his constitutional rights to due process, equal protection, effective assistance of counsel and compulsory process. We affirm.

As a preliminary matter, the government contends that defendant waived his right to appeal the denial of his motion by failing to renew the motion before the magistrate and by not raising the request before the trial judge.*fn2 While our research has not revealed any case holding that objections to a magistrate's ruling under 18 U.S.C. § 3006A(e) must first be made to a district court, the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A), authorizing district court judges to refer numerous other pretrial matters to a magistrate, provides that reconsideration of a magistrate's pretrial finding authorized under that subparagraph may be made by a district court judge. We have interpreted this requirement as prohibiting direct appeal to this court from a magistrate's pretrial findings. See United States v. Reeds, 552 F.2d 170, 171 (7th Cir. 1977) (per curiam). See also United States v. Haley, 541 F.2d 678 (8th Cir. 1974).*fn3 While § 3006A lacks similar language suggesting the proper procedure for review of a magistrate's denial of authorization of services for indigent defendants, we believe requiring a defendant to seek intermediate review in a district court or to renew the motion in that forum represents the better rule. Such intermediate review, preferably before the initiation of trial, serves the interests of judicial economy by placing the issue before a trial judge who is more intimately familiar with the details of the case than this court could hope to become and is, therefore, in a better position initially to review the merit of the request.

Even if we were to reject the government's contention on this procedural issue, our application of the requirements of 18 U.S.C. § 3006A(e) to the facts of this case would still compel affirmance of the conviction. As previously noted, § 3006A(e) permits authorization of investigative services if the defendant is financially unable to obtain them and if they are necessary. We have no doubt about defendant's inability to have procured such services at his own expense; however, we believe that while the services might have been required to defend against the original indictment, the assistance defendant sought was not necessary to defend against the charges in the superseding indictment.

Specifically, subparagraph 4(a) of Count I of the first indictment had stated that the misrepresentations and promises which defendant made to the alleged victims of this scheme included the following:

That 80% of . . . (defendant's) customers experienced a savings in their electrical bills as a result of . . . (defendant's) utility rate and cost consultant service.

Since many of defendant's former customers resided in California, his proving this statement to be accurate arguably would have required some investigation of defendant's practices in that state. The government indicated it would seek to prove the falsity of the representation by reference to the utility bills of defendant's 571 customers in California. These records were subpoenaed and made available to defendant.*fn4

We need not decide whether access to these records would have provided defendant with an adequate opportunity to defend against the original charge because the alleged statement quoted above was omitted from the superseding indictment. The list of misrepresentations, which defendant allegedly made, was reformulated to include promises given only to the alleged victims in Wisconsin.*fn5 Consequently, investigation of defendant's practices in California was not necessary to defendant's effective defense against the new charges.*fn6

In his brief and his arguments before this court, defendant stated that, even under the superseding indictment, the investigative services in California were necessary to develop and to establish the defense of his good faith belief in the truth of the representations he made to the alleged Wisconsin victims. In asserting this contention, defendant has not added any new factual support to his original showing of necessity made before the magistrate. In the affidavit supporting the request for authorization, defense counsel stated he had spoken by telephone with two of defendant's California customers, and that they said they had saved money as a result of defendant's services.*fn7 Counsel also stated that he had talked by telephone with a California attorney whom defendant had consulted concerning representation in that state and that the attorney said he had a list of clients whom defendant's services had benefited. We agree with the magistrate that recitation of these facts constituted an insufficient showing of necessity to warrant hiring an investigator to work in California. We see no way in which investigation of these "leads" in California would have been of substantially more assistance in establishing defendant's alleged good faith belief than were the utility bills and responses to government questionnaires available to defendant. The magistrate made clear that she was willing to reconsider her ruling if defendant could make a stronger showing of the necessity for the proof requested. Defendant did not do so in that forum, and he has not brought to our attention any additional facts that would warrant authorization of the requested services.*fn8

Finally, in addition to alleging a failure to comply with the applicable statutory standards, defendant states in conclusory language that his constitutional rights have been violated. He has not made a particularized showing with respect to any of these alleged violations. His claims on both the constitutional and the statutory grounds are quite speculative. Defendant has not demonstrated by clear and convincing evidence the prejudice required for reversal of his conviction.*fn9

Accordingly, the judgment appealed from ...

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