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GREEN v. UNITED STATES.

October 21, 1985

GREEN
v.
UNITED STATES.



C.A. 9th Cir. Reported below: 745 F.2d 1205.

Certiorari denied.

JUSTICE WHITE, with whom JUSTICE BRENNAN joins, dissenting.

This case presents the question whether, in a prosecution for mail fraud under 18 U.S.C. ยง 1341, a defendant who makes out an adequately supported defense of good faith is entitled to a separate jury instruction on that issue when the court gives a sufficient instruction on specific intent. Here, the United States Court of Appeals for the Ninth Circuit held that if a specificintent instruction adequately covers the issue of good faith, that is sufficient to present the defense to the jury, and the defendant is not entitled to a separate good-faith instruction. 745 F.2d 1205 (1984). Three other Courts of Appeals have reached the same conclusion. United States v. Gambler, 213 U.S. App. D.C. 278, 281, 662 F.2d 834, 837 (1981); United States v. Bronston, 658 F.2d 920, 930 (CA2 1981), cert. denied, 456 U.S. 915 (1982); United States v. Sherer, 653 F.2d 334, 337-338 (CA8), cert. denied, 454 U.S. 1034 (1981). Both the Fifth Circuit in United States v. Fowler, 735 F.2d 823, 828 (1984), and the Tenth Circuit in United States v. Hopkins, 744 F.2d 716, 718 (1984) (en banc), however, have reached the opposite conclusion. Both of these courts have held that when the defendant presents evidentiary support for his good-faith defense, the trial court must give a separate instruction to the jury on this issue. See also United States v. McGuire, 744 F.2d 1197, 1201 (CA6 1984). Given this square conflict among the Courts of Appeals, I would grant certiorari in this case.

19851021

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