UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5191

MICHAEL E. TOTH,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-9)

Argued: January 31, 1996

Decided: July 31, 1996

Before RUSSELL and HAMILTON, Circuit Judges,
and BLAKE, United States District Judge
for the District of Maryland, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anthony Mark Mariani, ANTHONY M. MARIANI,
P.C., Pittsburgh, Pennsylvania, for Appellant. Sherry L. Muncy,
Assistant United States Attorney, Elkins, West Virginia, for Appellee.
ON BRIEF: David E. Godwin, Acting United States Attorney,
Elkins, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Michael E. Toth ("Toth") appeals his conviction for conspiracy and
related offenses arising out of a scheme to steal from his employer,
the Peabody Coal Company, and sell for his own benefit over 29,000
tons of coal worth more than $600,000. For the reasons set forth
below, we affirm.

I.

The evidence at trial showed that Toth, who was the general super-
intendent of Federal No. 2 Mine at Fairview, West Virginia, owned
by Peabody, devised a scheme to defraud his employer with the help
of Jeff Isiminger, the chief security guard at the mine, and several
other individuals. The billing process at the mine depended on a
computer-generated report which recorded the weight of trucks mea-
sured by scales which the trucks crossed as they left the mine loaded
with coal. Isiminger had responsibility for the computer report. Toth
approached Isiminger in January 1992 to secure his cooperation in
deleting a certain number of truckloads from the reports. Thus, no bill
would be generated by Peabody for those truckloads. With Isim-
inger's agreement to participate, Toth then obtained the assistance of
a friend and miner named Hans Mohr, who found several buyers for
the stolen coal.

Between January and August 1992 approximately 29,000 tons of
coal were taken from the mine but not recorded on Peabody's com-
puter reports. The scheme was discovered when another mine
employee noticed a discrepancy between the number of trucks he was
loading and the number shown on the mine records. He reported his
observations to mine officials, who in turn contacted the police. The
subsequent investigation included video surveillance and establishing
a second file on the computer which showed the weights of all the

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trucks that crossed the scales, including those deleted by Isiminger.
Isiminger gave lists of the stolen coal amounts to Toth, and some of
these lists were later found in a search of Toth's house. Isiminger,
who cooperated with the investigation, also recorded a conversation
with Toth in which they discussed the theft, and Toth told Isiminger
to play dumb if the police questioned him. The value of the stolen
coal was approximately $600,000. Toth personally received approxi-
mately $64,000 as a result of the fraud.

On January 13, 1994, Toth was named as a co-defendant in 18
counts of a 23-count indictment returned by a federal grand jury in
the Northern District of West Virginia. The charges against Toth
included conspiracy, mail and wire fraud, interstate transportation of
stolen property, money laundering, and tampering with a witness.
Two of the buyers of the stolen coal, James Pettite and James Frey,
also were named in the indictment but later entered plea agreements
with the government and testified at trial. Isiminger and Mohr also
entered plea agreements with the government and testified against
Toth.

After various pre-trial proceedings, the case proceeded to trial on
October 4, 1994. On October 17, 1994, the jury convicted Toth of all
charges. On March 6, 1995, Toth was sentenced to serve 97 months
in prison, followed by three years of supervised release, and to pay
$2,800 in restitution.

II.

The first issue raised by Toth relates to the prosecutor's failure to
provide in a timely fashion certain allegedly exculpatory information
in violation of Brady v. Maryland, 373 U.S. 83 (1963). The govern-
ment provided "open file" discovery in this case, making available to
Toth's counsel the contents of several file cabinets containing the evi-
dence gathered during the investigation. In response to a pretrial
motion filed by Toth seeking Brady material, however, the govern-
ment initially denied that it possessed any such material. It was later
determined that the prosecutor had in her desk drawer a confidential
memorandum and attached documents, titled as a "hypothetical" prof-
fer, which had been provided to the prosecution by counsel for a sepa-
rate target of the grand jury investigation, Arthur J. Boyle, Jr. Mr.

                    3
Boyle was alleged to have purchased some of the coal through Frey,
knowing it was stolen. The United States Attorney ultimately decided
not to seek an indictment of Mr. Boyle.

The Boyle documents eventually were provided to Toth's counsel.
On May 11, 1994, a hearing was held on Toth's motion to dismiss the
indictment for the government's failure to make the Boyle materials
available earlier in response to Toth's request for Brady materials. On
May 12, 1994, Toth filed a motion for a 45-day continuance in order
to review the Boyle materials and further prepare for trial in light of
those documents. The trial, which had been scheduled to begin May
17, 1994, was rescheduled for October 4, 1994.

The United States Magistrate Judge to whom Toth's motion to dis-
miss the indictment was referred concluded on the basis of the testi-
mony presented before him that the government prosecutor was
credible in her explanation that she had forgotten about the Boyle
materials when she responded to Toth's pretrial motion, and that no
bad faith was involved. The district judge, affirming the magistrate
judge, found that the government may have acted carelessly but not
with intentional or reckless disregard toward the defendant's rights.

Toth contends that the court, pursuant to its inherent supervisory
powers, should have dismissed the indictment because of what he
terms outrageous governmental misconduct. The Supreme Court has
recognized that, in an extreme case, governmental misconduct may be
so outrageous as to require dismissal of charges against a defendant
under the Due Process Clause of the Fifth Amendment. United States
v. Russell, 411 U.S. 423, 432 (1973). Such claims, however, are diffi-
cult to support and rarely successful. United States v. Jones, 13 F.3d
100, 104 (4th Cir. 1993). In this case Toth has shown no reason to
conclude that the magistrate judge, and the district judge in his affir-
mance of the magistrate judge's findings, were clearly erroneous in
determining that the prosecutor acted carelessly, at worst, and not
with deliberate or reckless disregard for the defendant's rights. In
light of the confidential and "hypothetical" nature of the Boyle docu-
ments, the fact that they did not relate directly to Toth, and the fact
that the government had agreed not to use them in any way, the prose-
cutor's failure to recognize that they should be disclosed to Toth's
counsel falls far short of conduct sufficiently outrageous to "shock the

                    4
conscience of the court." See United States v. Osborne, 935 F.2d 32,
36 (4th Cir. 1991).

Toth makes a related argument that the delay in providing him the
Boyle materials caused him prejudice requiring dismissal of the
indictment. Failure by the government to disclose material evidence
favorable to the defendant in response to a defense request may vio-
late due process, regardless of a prosecutor's good or bad faith.
Brady, 373 U.S. at 87; see also United States v. Agurs, 427 U.S. 97,
107 (1976). There is no violation, however, unless the failure to dis-
close is sufficiently significant as to result in the denial of a defen-
dant's right to a fair trial. Id. at 108. 1 In this case, when the documents
were produced, Toth sought and received a continuance of the trial
date that gave him ample time to make any use of the Boyle materials
he found helpful to his defense. The only prejudice he points to is that
he received a longer continuance than he requested, thereby interfer-
ing with his request for a speedy trial. He remained free on bond,
however, during the entire time. While he contends that the delay
before trial increased his level of anxiety and financial hardship, he
identifies no way in which his ability to present a defense to the
charges was compromised. Dismissal of the indictment was not
required.

III.

Toth next argues that his rights to a speedy trial under the Speedy
Trial Act, 18 U.S.C. § 3161 et seq., and under the Sixth Amendment
to the Constitution were violated when the court granted a continu-
ance of the trial from May 17, 1994 until October 4, 1994 in response
to Toth's request for a 45-day continuance to consider the Boyle
_________________________________________________________________
1 The government denies that the Boyle materials were exculpatory of
Toth, as they focused on Boyle's lack of knowledge that the coal he
received was stolen. At trial, Toth conceded the coal was stolen but
denied personal involvement in the scheme. Toth, however, contends that
the Boyle materials related to the credibility of a government witness and
also to use of an expert witness. Under Giglio v. United States, 405 U.S.
150 (1972), the government is required to disclose evidence probative of
the credibility of a witness if the reliability of that witness may be deter-
minative of guilt or innocence. Id. at 154-55.

                     5
materials. In granting the continuance, the court entered an order
under 18 U.S.C. § 3161(h)(8)(A) and (B) excluding the time from
May until October in the interests of justice and to allow counsel rea-
sonable time necessary for effective preparation for trial.2

Under the Act, an indictment is to be dismissed if more than 70
days elapse between the indictment or initial appearance and trial, not
counting time properly excludable for the pendency of motions and
other specified reasons. 18 U.S.C. § 3161. Toth first contends that
none of the delay after May 17, 1994, should be excludable, even
though he requested a continuance, because the government's alleged
misconduct in not producing the Boyle materials at an earlier date
compelled him to request a continuance he did not want. As discussed
above, however, any misconduct involved in failing to produce the
Boyle materials was not so egregious as to justify the sanction of dis-
missal Toth seeks, either directly or by refusing to exclude time other-
wise properly excludable under the Speedy Trial Act. Assuming the
45 days requested by Toth in his motion for continuance and the time
attributable to consideration of Toth's motion to dismiss are excluded,
Toth's own calculations show a delay of only three days past the 70-
day limit set by the Act. (Appellant's Brief at 44-45).

Toth then relies on the fact that the choice of October 4, 1994,
rather than an earlier date to begin trial, may have been somewhat
influenced by the general congestion of the court's calendar.
Acknowledging this, the district court in denying the motion to dis-
miss nevertheless found any such additional period of delay properly
excludable because the continuance itself was not a result of the
court's calendar.

Periods of delay attributable solely to the congestion of the court's
calendar are not excludable under the Speedy Trial Act. 18 U.S.C.
§ 3161(h)(8)(C). In this case, however, the delay resulted from the
defendant's own request for a continuance and from his motion to dis-
miss. The district court reset the trial at the first appropriate date that
allowed time to resolve the motion and time for defense counsel to
_________________________________________________________________
2 Much of this time was excludable for other reasons as well, which
have been sufficiently discussed in the briefs and need not be repeated
here.

                    6
consider the Boyle materials. The date also was chosen to insure an
uninterrupted block of time for the trial to proceed. There was no
error in excluding the time under the Speedy Trial Act. See United
States v. Gallardo, 773 F.2d 1496, 1505-06 (9th Cir. 1985). The dis-
trict court also correctly found no violation of Toth's constitutional
right to a speedy trial. See Barker v. Wingo, 407 U.S. 514 (1972).

IV.

One of Toth's co-defendants, James Frey, entered a plea agreement
with the government. As a condition of receiving that agreement, Frey
successfully passed a polygraph examination. At trial, Frey was called
to testify by the government. Government counsel advised the jury in
her opening statement, however, that they should not believe all of
Frey's testimony. A portion of Frey's testimony was favorable to
Toth.

Toth then sought to introduce evidence of Frey's successful com-
pletion of the polygraph examination in order to bolster Frey's
credibility.3 The trial court, under Fourth Circuit precedent and also
in the exercise of his discretion under Rule 403, refused to admit this
evidence, finding that its probative value would be outweighed by the
consumption of time that would be involved and the likelihood of
confusing the jury.

The rule in this Circuit is that evidence that an accused or a witness
has taken a polygraph test is inadmissible. United States v. A & S
Council Oil Co., 947 F.2d 1128, 1133 (4th Cir. 1991); United States
v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984). An exception was
made in the Council Oil case where the government had offered
expert testimony on the credibility of a key government witness and
the trial court had refused to permit cross-examination of the expert
concerning the results of a polygraph test taken by the witness. In that
case we held that the polygraph result should have been admitted as
an attack on the expert's opinion, although not as a direct attack on
the credibility of the witness. Council Oil, 947 F.2d at 1135.
_________________________________________________________________
3 According to the government, the polygraph questions answered by
Frey related primarily to Boyle rather than to Toth.

                    7
As we also recognized in Council Oil, circuits "that have not yet
permitted evidence of polygraph results for any purpose are now in
the decided minority." Id. at 1134 n.4. Toth's counsel urges us to fol-
low the opinion of the Eleventh Circuit, en banc , in United States v.
Piccinonna, 885 F.2d 1529 (11th Cir. 1989), or that of the Fifth Cir-
cuit in United States v. Posado, 57 F.3d 428 (5th Cir. 1995). In
Council Oil we concluded that en banc consideration would be neces-
sary before altering Fourth Circuit practice by permitting polygraph
results to be used as a direct attack on or bolstering of the credibility
of a witness. Council Oil, 947 F.2d at 1134. Council Oil was decided
prior to the Supreme Court's decision in Daubert v. Merrell Dow
Pharmaceuticals, ___ U.S. ___, 113 S. Ct. 2786 (1993). The Fifth
Circuit in Posado concluded that because of the change in the law
effected by Daubert, en banc consideration was not necessary to
overturn that Circuit's per se rule against admissibility of polygraph
evidence. Posado, 57 F.3d at 433-34.

While we might be inclined to agree with the Fifth Circuit in an
appropriate case, it is not necessary to reach that issue in Toth's case.
Both the Piccinonna and Posado opinions recognize the "gatekeeper"
function of Rule 403. Posado, 57 F.3d at 435; Piccinonna, 885 F.2d
at 1536. Here the trial judge, in the exercise of his discretion, con-
cluded that any probative value of the polygraph results was out-
weighed by the potential for confusing the jury and unnecessarily
lengthening the trial by opening up the polygraph issue. We see no
reason to disturb that ruling.

V.

Toth next challenges the trial court's admission under Fed. R. Evid.
404(b) of testimony concerning other "bad acts" engaged in by Toth
with either Mohr or Isiminger. The evidence admitted showed that (1)
Toth had a well dug at Isiminger's home as a "wedding present" at
the expense of the mine; (2) Toth had Isiminger deliver to Toth's
home certain property (a cannon and a weight bench) built at the mine
by mine employees; (3) Toth directed Isiminger to unlawfully remove
from mine property and have processed a dead deer in violation of
wildlife laws, causing Isiminger to receive a criminal conviction for
a wildlife violation; and (4) Toth and Mohr cooperated in a scheme
to have slurry, a coal by-product, transported out of the mine and sold

                     8
for their personal profit. The trial court has broad discretion in ruling
on the admissibility of evidence offered under Rule 404(b), and its
decisions are not reversed unless they are "arbitrary and irrational."
United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (quoting
United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990)), cert.
denied 116 S. Ct. 784 (1996). "Evidence of prior bad acts is admissi-
ble if it is (1) relevant to an issue other than character, (2) necessary
to show an essential part of the crime or the context of the crime, and
(3) reliable." Id. In this case the trial court properly weighed any
unfairly prejudicial effect of the evidence against its probative value,
see Fed. R. Ev. 403, and admitted the evidence for various purposes,
including demonstration of the close, conspiratorial relationship
between Toth, Mohr, and Isiminger. Admission of evidence for this
purpose is permissible under Rule 404(b). United States v. Boyd, 53
F.3d 631, 637 (4th Cir.), cert. denied , 116 S. Ct. 322 (1995). The con-
duct testified to was no more "sensational or disturbing" than the
fraud with which Toth was charged. Id. The trial court did not err in
admitting the 404(b) evidence.

VI.

As his last issue Toth contends that the district court incorrectly
applied an enhancement under § 3B1.1(a) of the United States Sen-
tencing Guidelines to increase Toth's adjusted offense level on Count
18 of the indictment, money laundering. Even if Toth is correct, how-
ever, resentencing would not be required because the district judge
explained that the 97-month sentence he imposed on Count 18 would
have been the same, in light of the seriousness of the offense, without
application of the four-level enhancement. See United States v. Smith,
914 F.2d 565, 569 n.3 (4th Cir. 1990); United States v. White, 875
F.2d 427, 432-33 (4th Cir. 1989).

Accordingly, Toth's convictions and sentence are affirmed.

AFFIRMED

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