The issue of payments to Prohaska was fully aired to the jury.5 Moreover, the District Court cautioned the jury about carefully weighing the credibility of "an informer who provides evidence against a defendant for pay . . .."

Informant fees are neither unlawful nor unduly prejudicial per se. And there is no contention here that the payments were based on the type of contingent fee arrangement condemned by the Fifth Circuit in Williamson v. United States, 311 F.2d 441, 444 (5th Cir. 1962). See Annot., 13 ALR Fed. 905 (1972). In essence, Shelton's argument boils down to the claim that Prohaska's testimony should be stricken because the Government paid for it out of an improper source of funds. While we could neither endorse nor condone such action, we feel that to resort to the exercise of the Court's supervisory power on these facts would be an improper use of the power merely to foreclose law enforcement practices which we do not approve. See Hampton v. United States, 425 U.S. 484, 490, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976).

Shelton complains that he was prejudiced because at the outset of the trial the Government submitted and the jury viewed exhibits related to items of allegedly unreported income in excess of the aggregate $8,000 limitation previously imposed by the District Court. Although there is no excuse for the Government's disregard of the order limiting proof, this claim is unavailing.

Given the assumption that juries ordinarily follow a court's instructions, United States v. Fassler, 434 F.2d 161, 163 (9th Cir. 1970), Cert. denied, 401 U.S. 1011, 91 S. Ct. 1263, 28 L. Ed. 2d 548 (1971), error in the admission of evidence can generally be "cured by withdrawing the evidence from the jury's consideration and instructing the jury to disregard it." Maestas v. United States, 341 F.2d 493, 496 (10th Cir. 1965). United States v. Jiminez-Badilla, 434 F.2d 170, 174 (9th Cir. 1970). This course was taken by the District Court here preventing any prejudice to Shelton.6

Shelton next complains that his conviction should be reversed because the Government violated Brady v. Maryland in that it delayed turning over 500 pages of alleged Brady material until the eve of the trial and in that it failed to turn over another 1,900 pages of alleged Brady material until after trial.7 In Brady, the Supreme Court held that it is a denial of due process for the prosecutor to fail to disclose evidence in his possession which is material to the defense. In United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the Supreme Court explained that the standard of materiality varies in these situations "depending on the nature of the information withheld and the type of request made by the defendant for the production of the material." Skinner v. Cardwell, 564 F.2d 1381, 1384 (9th Cir. 1977). See also United States v. Brown, 562 F.2d 1144, 1150 (9th Cir. 1977).

Shelton claims that much of the 500 pages of information turned over to the defense the day before trial impeached Prohaska's credibility. Assuming that all of this information was material within the meaning of Brady, the delay in disclosing it only requires reversal if "the lateness of the disclosure so prejudiced appellant's preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial." United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.), Cert. denied, 426 U.S. 924, 96 S. Ct. 2634, 49 L. Ed. 2d 379 (1976). There can be no claim of prejudice insofar as the defendant was enabled to present to the jury favorable or impeaching evidence. United States v. Bracy, 566 F.2d 649 (9th Cir. 1977). Accord, United States v. Kaplan, 554 F.2d 577, 580 (3d Cir. 1977); United States v. Decker, 543 F.2d 1102, 1105 (5th Cir. 1976), Cert. denied, 431 U.S. 906, 97 S. Ct. 1700, 52 L. Ed. 2d 390 (1977).

Unlike in Miller, the evidence here was received on the day before trial, not near the end of the defense case. And, although unlike in Miller, no continuance was offered, there was a five day delay after the second day of trial. Finally, much of the evidence turned over consisted of the grand jury testimony of Hauser and Herrera, both of whom testified for the defense. Thus, Shelton has failed to demonstrate how the Government's delay in disclosing the 500 pages of information prejudiced the preparation of his case.8

The contention with respect to the Government's failure to disclose alleged Brady material until after trial is divided. The first attack relates to about 1,900 pages of information turned over to the defense during preparation for prosecution of a companion case in which Hauser and Shelton comprised two of the three defendants. This material was disclosed in time for the District Court to consider it in passing on Shelton's motion for a new trial in this case. The second attack focuses on a statement given to the Internal Revenue Service on March 7, 1974 by Sidney Krems, Hauser's accountant, which statement was disclosed during the briefing of this appeal.9

With respect to the 1,900 pages of information, the Brady request can only be classified as general.10 "The standard of materiality in such cases is whether the 'omitted evidence creates a reasonable doubt that did not otherwise exist.' " United States v. Brown, 562 F.2d at 1150, quoting United States v. Agurs, 427 U.S. at 112, 96 S. Ct. 2402. The District Court rejected Shelton's motion for a new trial after reviewing the omitted evidence, finding that it was cumulative or, to the extent it was not, it was remote and collateral in the extreme. We agree. Impeachment evidence, even that which tends to further undermine the credibility of the key Government witness whose credibility has already been shaken due to extensive cross-examination, does not create a reasonable doubt that did not otherwise exist where that evidence is cumulative or collateral. United States v. Brown, 562 F.2d at 1150-51. See also United States v. Mackey, 571 F.2d 376, 389 (7th Cir. 1978).11

Shelton also claims that the Government's failure to disclose a statement made by Sidney Krems necessitates a new trial under the teachings of Brady. As was mentioned earlier, Prohaska testified on direct examination that Krems was among those who attended a meeting in 1973, the purpose of which was to cover-up Hauser's payments to Shelton and Prohaska. Shelton and Hauser denied the meeting took place but Krems did not testify.

During its cross-examination of Prohaska, the defense made a Brady request for "(i)nterview reports of a bookkeeper named Sidney Krems." Counsel for the Government stated that he believed Krems had been interviewed by the Internal Revenue Service and the District Court ordered disclosure of the report. However, the Government was unable to locate the report until well after the trial. The memorandum of the Krems interview, which was made a part of the record for this appeal, states that Krems was reminded of allegations that he was involved "in attempts to cover up illegal payments to other individuals," that he was the subject of a related IRS investigation and that the Special Agent wished to ask him questions "(i)n connection with my investigation of the tax liability of JOSEPH HAUSER and others . . .." Insofar as it is relevant to Shelton's Brady request, the memorandum indicates: "KREMS insisted that he was innocent of any wrongdoing. He stated 'I know of no payoffs that JOE made to anyone,' and 'I am not aware of any payoffs or cover-ups.' "

We are satisfied that Shelton's request for Krems' statement was "specific" that is, by "focus(ing) his request on a particular witness," the defense gave " 'the prosecutor notice of exactly what the defense desired.' " United States v. Mackey, 571 F.2d at 389.12 In such situations, if "a substantial basis for claiming materiality exists . . . the failure (of the prosecutor) to make any response is seldom, if ever, excusable." Agurs, 427 U.S. at 106, 96 S.Ct. at 2399.

Clearly, a substantial basis exists for claiming that the Krems' statement was material in a Brady sense. The Government relied heavily on Prohaska's testimony about a cover-up meeting to prove that Shelton consciously attempted to conceal payments that he knew were income. Krems' statement can be construed as contradicting that testimony. It is true, however, that Krems' denials were cumulative given the similar denials by Shelton and Hauser. Thus, in view of the substantial impeachment of Prohaska from other evidence, the addition of Krems' testimony would not have created a reasonable doubt that did not otherwise exist. However, Krems was a much more marginal figure than either Shelton or Hauser, and his testimony may have been given greater credibility by the jury. Accordingly, nondisclosure in the face of a specific request would be inconsistent with Brady's "concern that the suppressed evidence might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398.

Nevertheless, we feel that a rejection of Shelton's Brady claim is still required here. In reaching this conclusion, we keep in mind that the primary concern expressed in the Brady line of cases is that the accused not be deprived of a fair trial. Agurs; United States v. Bracy.

This is not a case where, when faced with a specific Brady request, the Government failed to make any response.

The Government initially resisted Shelton's request for Krems' statement on the ground that "Mr. Krems is equally available to the defendant. He is not unknown in any sense." Although this was not disputed by Shelton's defense counsel, the District Court reasonably ordered production of the statement.13 During ensuing colloquy, the Government's counsel indicated that he thought he had only Krems' grand jury testimony and that it would be supplied. The District Court indicated Krems' last known address should also be made available, and Shelton's counsel stated that would be satisfactory.

Notwithstanding this colloquy, the parties understood that the Government's efforts to locate the Krems' statement were to continue. After Prohaska's testimony but before the close of the Government's case, the subject was raised in open court again. Counsel for the Government stated that the transcript of one Krems interview had been located and disclosed and that another apparently existed which he did not then have. Upon questioning by the District Court, the Government further stated that Krems' address had been supplied to the defense. Thus, the question of Krems' availability to the defense was again raised. Defense counsel made no protestation that he did not know Krems' address or that he had been unable to locate him. In fact, he stated that he had not even attempted to subpoena Krems. Two days later the Government reported in open court that the search for the Krems' statement had been fruitless so far and that the search was continuing. Although defense counsel was present, he still gave no indication that he had had difficulty locating Krems on his own or that he had tried to do so. The Krems IRS statement was eventually turned up after the conclusion of the subsequent Shelton and Hauser trials during a search of other files. It was immediately made available to the defense and this Court. The circumstances of its discovery were detailed in an affidavit submitted with the Government's motion to augment the record on this appeal with Krems' statement. We have reviewed the affidavit and are still satisfied that the Government made a good faith effort to locate the statement earlier.

It has also been held that the due diligence standard on the part of a defendant in connection with a motion for a new trial should be dispensed with when the new evidence raises constitutional issues. Marshall v. United States, 141 U.S.App.D.C. 1, 436 F.2d 155 (1970). This position draws some support in the Brady context from the Supreme Court's decision in Agurs. There the Court held that even where the accused made no request for Brady material, he would not be required to meet a test as stringent as that normally applied in determining motions for new trials. 427 U.S. 110-11, 96 S. Ct. 2400-2401. We feel that in this Brady situation some defense diligence was required.14 Basically, we find ourselves in agreement with the following comment in Seventh Circuit's comments in United States v. Hedgeman, 564 F.2d 763, 768 (7th Cir. 1977):

"While we do not necessarily disagree with the D. C. Circuit's statement (in Marshall ) as a general principle, we do not think in application that it should be carried to the extreme that we find ourselves as arbiters in a case exemplifying Brady's 'sporting theory of justice.' We are of the opinion that at the very least the evidence must be newly discovered, and in this respect it appears to us that failure to exercise diligence can be so obviously bordering on gamesmanship as to place the evidence constructively in the category of non-newly discovered."

Reversal on the facts of this case would amount to permitting the gamesmanship just condemned. First, Shelton knew exactly what benefit he hoped to secure from Krems' testimony and, therefore, had an incentive to seek him out. Second, the record supports the conclusion that Krems was available to the defense. It is not disputed that Krems was Hauser's accountant or bookkeeper and Hauser knew where to contact him. Hauser cooperated fully with and testified at length for the defense this included his denial of the cover-up meeting. The colloquy in open court between counsel over the whereabouts of the Krems' statement has already been detailed above. Suffice it to say, that given the nature of that colloquy, there was an obligation on the part of the defense to speak up if difficulty was being encountered in locating Krems. Nothing was forthcoming. Under these circumstances, it is unreasonable to ask us to believe that the defense could not have contacted Krems.

We hold that the combination of the nature of the Government's response to Shelton's specific Brady request for the Krems' statement and the lack of diligence on the part of the defense in attempting to obtain Krems' evidence independently establish that this nondisclosure did not deprive Shelton of a fair trial.

Issue 3, Special Verdict.

The District Court rejected Shelton's request that a special verdict be submitted to the jury calling upon them to decide which of the six items, if any, constituted income to Shelton. He argues the special verdict was required on the ground that without it he was was prevented from arguing following a guilty verdict, either to the District Court or this Court, that he was convicted solely with respect to an item which was insubstantial as a matter of law.15 We disagree.

It has long been established that special verdicts in criminal jury trials are disfavored, United States v. O'Looney, 544 F.2d 385, 392 (9th Cir.), Cert. denied, 429 U.S. 1023, 97 S. Ct. 642, 50 L. Ed. 2d 625 (1976); 2 Wright & Miller, Federal Practice & Procedure, § 512 (1969). And while this Court has held that the District Court may submit a special verdict in appropriate cases, O'Looney, 544 F.2d at 391-92, Shelton has cited no case and we have found none in which it was held that the refusal to grant a special verdict was error. In fact, this Court has previously upheld the refusal to grant a defendant's request for a special verdict in another single count multi-item case. Bisno v. United States, 299 F.2d 711 (9th Cir. 1961), Cert. denied, 370 U.S. 952, 82 S. Ct. 1602, 8 L. Ed. 2d 818 (1962). Cf. United States v. Munz, 542 F.2d 1382 (10th Cir. 1976), Cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); United States v. Jackson, 542 F.2d 403 (7th Cir. 1976).

Finally, it is not at all clear that the absence of the special verdict prevented Shelton from making any substantiality argument. The District Court instructed the jury that, with the exception of the smaller hotel bill, any of the six items, standing alone, could be the basis of a conviction if they found it to be substantial.

Issue 4, Jury Instructions.

Shelton makes two claims with respect to the jury instructions. First, he argues that the Court incorrectly set out the definition of gift. Second, Shelton contends that the instruction on willfulness was erroneous in that it was incomplete. Neither contention has merit.

The trial court instructed the jury that gross income does not include the value of property acquired by gift and that whether an item is a gift depends on the Transferor's intent. This was a correct statement of the law. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S. Ct. 1190, 4 L. Ed. 2d 1218 (1960). Shelton's argument that this allows a person to be convicted of a criminal offense based upon another's state of mind is unpersuasive since the element of willfulness prevents a conviction based solely on the state of mind of one other than the defendant.

The District Court instructed that "the term 'wilfully' means deliberately and with knowledge, as distinguished from careless, inadvertent or negligent. That is to say, the defendant knew and specifically intended the return to be false when he made, subscribed and filed it." During the conference on jury instructions, the District Court recognized that if Shelton reasonably believed that the items received were gifts, he would not have acted willfully in failing to report them on his return. However, the District Court rejected defense counsel's request to add such a statement to the willfulness instruction on the ground that it was "too specific." Rather, it was left to the defense "to make that argument within the instruction of 'wilfulness' which I am going to give."It is true that the Supreme Court approved the essence of what was sought here in United States v. Pomponio, 429 U.S. 10, 13 n.4, 97 S. Ct. 22, 50 L. Ed. 2d 12 (1976). However, while the better practice may be to give such instructions when requested, we hold it was not an abuse of discretion to refuse it here. The defendant has no right to any particular language in the instructions. It is sufficient if the instructions taken as a whole encompass the instruction sought. United States v. Kaplan, 554 F.2d 958, 968 (9th Cir. 1977). "Instructions are not a substitute for argument to the jury. If the judge fairly instructs the jury as to applicable principles of law so as to allow counsel on each side sufficient latitude to argue what he considers to be key points in his case, the trial judge has performed his duty." United States v. Campanale, 518 F.2d 352, 362 (9th Cir. 1975). This much was done here. We conclude that the instructions as a whole were fair.

The District Court's judgment of conviction and suspended sentence entered on February 11, 1977 is affirmed.

AFFIRMED.

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

The Government's case rested heavily upon the testimony of one Prohaska, a former employee of the Union. Without his testimony, the evidence would have been insufficient to support Shelton's conviction. The voluminous material withheld by the Government, especially the records containing the denials by Shelton's accountant of a coverup meeting, impeached Prohaska and Prohaska's incriminating testimony. My Brothers hold that because these materials were merely cumulative, consisting largely of testimony duplicated by two witnesses for the defense, Shelton was not harmed by the late disclosure. I simply cannot agree.

It is true, of course, that our Circuit's rule, a rule that I dislike (See, United States v. Andrews, 455 F.2d 632, 633, n.1 (9th Cir. 1972)), is that the uncorroborated testimony of an accomplice, standing alone, will support a conviction. United States v. Sigal, 572 F.2d 1320, 1324 (9th Cir. 1978); Moody v. United States, 376 F.2d 525, 528 (9th Cir. 1967). Nevertheless, an enhanced impeachment by the accused, armed with material amassed by the Government during its investigation, could have well been pivotal as the jury weighed the evidence relating to Shelton's guilt or innocence. Thus, I submit that it cannot be said that the Brady error was harmless beyond a reasonable doubt. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).

I take no pleasure in reprimanding government prosecutors or any other attorneys, and I emphasize that, most assuredly, there is no indication here that exculpatory material was intentionally suppressed. What is all too apparent, however, is a demonstrated laxity and failure seriously to undertake the prosecutorial duty to examine government files for requested material that may show that a case against an accused is unfounded. In our land, the attainment of a conviction must never become the sole goal of the prosecution. "(T)he interest of the prosecution is not that it shall win the case, but that it shall bring forth the true facts surrounding the commission of the crime so that justice shall be done . . .."1 I thoroughly share the opinion of Judge Hufstedler, written in a cogent dissent about two years ago:

"We should not be hesitant in rigorously applying Brady and enforcing that rule even though reversals of criminal convictions may thereby result. The Brady rule does not result in the suppression of relevant evidence, but in its disclosure, thereby shoring up the integrity of the fact-finding process."

United States v. Miller, 529 F.2d 1125, 1130 (9th Cir. 1976).

I would vacate the convicting judgment and permit Shelton, rightly prepared, to defend himself again.