# Petition for Writ of Certiorari — Proner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1309%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 823 ## Text FILED LIESRAICY =, “~ s a . ‘ ° « ‘SUPREME COUR™ ed | x FEB’ 5 4969 @ | JOHN F. DAWS, @LERK . ae ’ IN THE is = | | Supreme Court of the United States October “Berm, 1968 ; ’ No. 102 ° | - WILLIAM PRONER, . . 4 | nes Petitioner, yy, UNITED STATES OF AMERICA, 3 : Respondent. ag ~~~ pETITION FOR A WRIT OF CERTIORARI TO THE ~ UNITED STATES COURT OF APPEALS oa. _FOR THE SECOND CIRCUIT — an : Harris B. STEINBERG Attorney for Petitioner 25 Broad Street New York, New York 10004 Harris B. STEINBERG S§tranuey 8. ARKIN Of Counsel bE mores od Sons OE BREE Sere ave ves 2 TREK Bea 5 cs » * s ‘ ‘ - : . 7. . . \ . \ . . . > . .* ~- TABLE OF CONTENTS ; PAGE CrrationsSijo OPINIONS BELOW ..............00-5 siamese a JURISDICTION eS canicaah cap selonnpyenesasipsaceshniand aa sasteb panel 20 ‘s ee PRESENTED a eer lara weace aclauisnciaiieienaiaes 2 Coxstrruttonat PROVISIONS AND , Srarures INVOLVED .. 3 STATEMENT,OF THE CASE .............. ‘icdaalesions seine 4 II onside sssesissecnsnisscnsasasinernnncineenrennnseiicada pore 4 ‘The Evidence .................... Fe RN ce SR ONE 4 The Prosecutor’s Summation ...............0.0.0 ne a. SE IIE xa damatiecenicinnaoenane ss sctd lies aaa canMaalto ee Re BI se eccoccemeton ahid sineiateni paca 8 - Reasons FoR GRANTING THE WRIT @0.00..00..000.000005 aie 10 - This Court has set down for argument a case in ee which, a question identical to one presented’ — by this petition will be Oe ae The concurrent sentence doctrine enunciated. in Hirabayashi v. United States and subsequent . cases has and will continue to deprive peti- _ tioner of his constitutional right to due proc- ~ ess and is an unsound rule of appellate re- view which should be corrected ........................ 11 The Court of Appeals’ determination that the jury’s verdict on Counts. 2 and 3 was not affected by evidence challenged by petitioner as insufficient violates this Court’s ee in Stromberg v. United States and Yates v: United States sii aisenbienspenninpaaneiovesiaanenenniinn cen “44 | i % AR ibis dR HE te is ann a SRP SAO ate aA ee RT ER art ‘ rr my) Il an 1s ae PAGE _ Petitioner=was deprived of his right to confron- tation by the prosecutor’s, vouching- for the . | credibility of his chief witness i in his summa- EE epee Dalai ecient choca sensi 16 “Conctuston EERE Cae Ms AIO LEC EDE YN OT CONTEST Ree Re PORE 17 : Arrenpicrs | A—Opinion of the Court of Appeals liaison Fonatioas la B—Judgment of the Court of Appeals Entered GY i Ya C—Exhibit 44 0. rane Pinaceae 1. lla TABLE OF AUTHORITIES | Cases: . Amos v. eeialietaaee of Internal Revenwe, 360 F.2d 358 (4th Cir. 1965)... dee sedis dete 2 Moreover, we submit, that if petitioner’s conviction on * these six counts was invalid he is entitled to be resentenced irrespective of the validity of his conviction on the remain- -ing two counts. In the event of reversal of the six counts, ¥ this case is the same as those in w hich the sentencing judge | determines a defendant’s ‘sentence in the belief that the defendant has in fact committed more crinies than those of ‘which he has been convicted. In such circumstances, - courts on appeal have required a resentencing. In Town- send v. Burke, 334 U. S. 736, 740° (1948), this Court said, ‘‘We are not at liberty to assume that items [false state- P oe = ae . ments by an officer as to defendant’s criminal record] given. such emphasis by the sentencing court, did not inffmence the sentence * * *.’’ See also, Smith v. United States, 223 F. 2d 750 (5th Cir. 1955) (if presentence report contains false . statements as toa defendant’s record sentence is void as lacking in due process) ; Baker v. State, 8 Md. App. 251 (1968) (case remanded for resentencing where trial judge considered defendant also guilty of other crimes he was not convicted of). _ Obviously, petitioner herein is deprived of the opportu- nity to raise.this latter contention so long as he is denied appellate review of the six counts, which are unquestionably aifected by the evidence he chaffenged as fegaffy insufficient. — Moreover, even if petitioner were not entitled to be re- sen s of right, reversal of conviction ex six counts wouldsfresent a strong argument for a discretionary reduc- tion of sentence under Rule 35, Federal Rules of Criminal Procedure. We further submit that the concurrent sentence doctrine as applied herein deprived petitioner of the equal protec- tion of the laws.in that his right of appellate review under 28 U.S.C. §1291 of the decisions of the District Court that he was guilty of eight separate crimes was unreasonably denied him, whereas had be not been sentenced in, this man- . ner his right to review. would have been left intact. -—--- -_- CUR RGR ae Rhee ono oo 14 The Court of Appeals’ determination that the jury’s verdict on Counts 2 and 3 waa\not af- fected by evidence challenged by petitioner as insufficient violates this Court’s holdings in Stromberg v. United States and Yates v. United States. The Court of Appeals decided that the jury’s verdict on Counts 2 and 3 was not based on the evidence of unsubstan- tiated ‘business deductions: In Stromberg v. California, 283 U.S. 359 ( 1931), and succeeding cases, this Court, laid down as a fundamental rule of appellate review of criminal convictions that if the jury might have convicted the de- fendant on an impermissible theory, such conviction must be reversed, even though a valid alternative ground existed upon which the conviction could have been sustained. What this obviously means is that where a jury may have based . its verdict on a legally deficient theory, even though it did not necessarily or could not properly have so based it, the defendant. is entitled to a reversal. , This rule must be applied in light of this Court’s rulings in Yates v. United States, 354 U. S. 298 (1957) and Bollen- bach v. United States, 326 U. S. 607 (1946). In Yates v. United States, 354 U.S. 298, this Court held that a convic- tion had to be revérsed when a verdict was supportable on ohne ground but-not on another, and when the judge’s charge was not so clear as to warrant a finding that the jury must have understood it could only consider the supportable ground. A jury is not so sophisticated as a Court of Appeals. A confusing and. contradictory charge may not convey to a ' jury the necessity of its adopting the more complex ef two 15 theories even though the Court of Appeals later determines, » after cool deliberation, that the charge should properly be read that way. This is particularly true when the Court of Appeals mistakenly assumes there was no evidence to sup- port an alternative reading\of the charge, when, in fact, there was such evidence before the jury. Compare, Bruton v. United States, 391 U. S. 123 (1968) ; Jackson v. Denno, 378 U.S. 368 (1964). In the instant case, as the Court of Appeals recognized, the trial court instructed the jury that the government had presented evidence relating to improper business deduc- tions for the years 1959 to 1964. Instead of regarding it as possible that the jury may have considered these instruc- ‘tions as permitting it to base a verdict of guilt on the 1959 counts on these same improper business deductions, the Court of Appeals interpreted the instructions as conveying to the jury a much more difficult and involuted thought, namely, that such deductions, if any, represented additional fiseal 1960 income to Palmer and therefore additional cal- endar 1960 income to Proner when his proportionate share of undistributed profits-was calculated. , Buttressing its conclusion that counts 2 and 3 were un- affected by the unsubstantiated business expense deduction theory, was its belief that there was no evidence in the case that petitioner had received any money in 1909. Tn this belief the Court was wrong. See Exhibit 44, Appendix C: hereto. - | ek - What we have here, then, is a case where a man is charged with tax evasion and false statements for 1959, where the government proves the.man received reimburse- RTE Romer = eR mE ROR (RON . ’ , IA TY AN INE SEATON, ERTL TNT II RS . ANT é. Try ¢ at re tn A ae alee a ake e Sota atten ee NS RMB NEAT Geet a notin 16 © ments in 1959 in accord with its theory that he is guilty for failing to report as income to him reimbursements he received, and where the trial court’s charge explains to the jury what the governmem’s theory is and reminds it that there were such reimbursements in 1959. We submit the Court of Appeals applied too loose a standard and that, in fact, the jury’s verdict on the 1959 counts may have been Jnfluenced by the evidence and charge on the insufficiently substantiated deduction theory advanced by the govern- ment. .- It is particularly unsuitable for a court on appeal to indulge in nice calculations in retrospect as in the case at bar where one of the prosecution’s theories is highly com- plex and difficult to understand, and the other sedulous, easy and ‘highly prejudicial. Coim pare Hartman v. United States, 215 F.2d 386 (8th Cir. 1954) ; United States v. Kelly, 349 F.2d 720, 758 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966) ; United States v. Long, 257 F.2d 340, 342 (3d Cir. 1958) ; United States v. Barash, 365 F.2d, 395, 399 (2d Cir. 1966). Petitioner was deprived of his right to confron- tation by the prosecutor’s vouching for the cred- ibility of his chief witness in his summation. The prosecutor vouched for the credibility of his chief witness by stating that the witness had made statements to him antedating the trial which were consistent with the witness’ challenged testimony (Record, p. 780). Since the defendant was not able to cross-examine the prosecutor, he was deprived of his constitutional right to confrontation. See Berger v. United States, 295 U. S. 78 (1934) ; Compare, Pointer v. Texas, 380 U. S. 400 (1965). a i ‘Conclusion .For the reasons stated herein, this petition for a writ of certiorari should be granted. Respectfully submitted, Harris B. STernserc * Attorney for Petitioner Harris B. SteErnBERG Stanuey S. ARKIN Of Counsel February, 1969 A. Pe ond pened attain Cale a are - . PEL RTP LOY NTSC WOES EY LORE ee SERS TENTH iT TENN woe — are Tere a oa “e et ae \—" ae ee Pett Po Oeb . cater te en wee hate SEK Sed Me Om ee ot Appendix A Opinion of the Court of Appeals ~~ UNITED STATES COURT OF APPEALS For THE Seconp CIRCUIT ” No. 236—September Term, 1968. c (Argued December 12, 1968 Decided January 10, 196%) _ Docket No. 32573 Ee Unitep States or AMERICA, Appellee, my goon ’ Wr414m Proner, | ; Appellant. Before: Moors, SmitH and Hays, Ee | Circuit Judges. Appeal from a judgment of the United States District - Court for the Southern District of New York, Walter R. Mansfield, Judge, convicting appellant after a jury trial of attempting to evade payment of i income tax, filing false staterhents in connection with his income: tax, and con- spiring to commit these acts, all in violation of 26 U.S.C. §§7201\ and 7206 (1964) and 18 U. S. C. §371 (1964). oo is SG 2a Appendix A Affirmed. Harris B. Stermnserc, New York, New York (Stanley S. Arkin, on the brief), for Appel- lant. — Peter ZimrotH, Assistant United States Attor- ney (Robert M. Morgenthau, United States Attorney for the Southern District of New York, David M. Dorsen and Charles P. Sif- ton, Ausiutans United States Attorneys, on the brief), for Appellee. . Hays, Circuit Judge: William Proner appeals from a judgment of the United States District Court for the Southern District of New York, Walter R. Mansfield, Judge, convicting him, after a jury trial, on eight counts of attempting to evade payment of income tax, filing false statements in connection with his income tax. and conspiring to commit these acts, all in violation of 26 U. S. C. —§§7201 ona 7206 — hacen 18 U.S.C. §371 (1964). Under a compromise agreement with the Internal Reve- nue Service made by Proner in 1957, Proner was to pay a portion of his ‘‘annual income’? for the years 1956-1965 on account of his tax liability for the years 1942- -1945. The term ‘‘annual income’’ was defined to include wages and, if Proner became a stockholder in.a closely held corpora- tion, ‘‘his proportionate share of corporate net income in excess of $5,000.00 as determined for Federal income tax purposes, * * * whether distributed or undistributed to him. _ ~ 1. The definition of corporate net income was subject to further qualifications not relevant here. 3a Appendix A The indictment charged that Proner (1) wilfully at- tempted to evade his 1959 income. tax in violation of 26 U. S. C.. §7201 (1964) (count 2); (2) wilfully filed false. statements of -annual income for the years 1959-1964 in violation of. 26 U. S. C. §7206 (1964) (counts 3-8); and (3) conspired to commit the offenses charged in counts 2-8 and to defraud the United States of payments. due under the terms of the compromise agreement with the Internal : Revenue Service in violation of 26 U. S. C. §371 (1964 | (count 1). The government sought to prove at trial (1) that Proner held an interest in the ‘‘Palmer Division’’ of the ‘S & E Novelty Company and, later, in the Palmer Import Trading Company during the years 1956-1964; (2) that he wilfully filed a false income tax return in 1959 and faise Statements of Annual Income for the years 1959-1964 by failing to report his share of the profits of these companies;? (3) that he wilfully filed false Statements of Annual Income for the years 1960-1964 by failing to report additional in- come received by him from Palmer Import in the form of expense allowances; (4) that, by improperly deducting as business expenses during 1960-1964 these expense allowance | payments to Proner, Palmer Import understated its income and Proner wilfully filed false Statements of Annual In- come’ for 1960-1964 by failing: to report his proportionate ‘share of the understated amount; and (5) that Proner con- 2. In 1957 and 1958 Proner also held an interest in Kaplan - Brothers, a company controlled by the S & E Novelty Company. Kaplan Brothers. lost money during this period. These losses must be subtracted from the‘profits of Palmer Division to compute the amount Proner should have reported. eae | Appendix A spired with others to commit these acts. The jury found :; Proner guilty on.all eight counts of the indictment. He was Sentenced to a three year term on each count with the terms to run concurrently. | . On this appeal Proner challenges the sufficiency of the evidence regarding his failure to report income attributable to Palmer Import’s payments to him for his alleged busi- ness expenses. This evidence provides the sole basis for the conviction on count 7 because the government offered no evidence that Proner failed to report other income in 1963, the year covered by count 7. Proner also claims that under the charge given by the court the jury might have convicted him on counts 2, 3, 4, 5, 6.and 8 solely on the basis of the evidence as to business expenses. He argues that the evidence, relating as it does only to the failure to sub- stantiate business expenses, does not show a wilful failure to report income in violation of 26 U. S. CG. §§7201 and 7206 (1964). If he is correct, the conviction on counts 2-8 is sub- ject to reversal since there is no way for this court to know on which evidence’the jury based its verdict. Moreover a successful challenge to counts 2-8 would require reversal - of the conspiracy conviction under count 1 because this court cannot know whether the conviction under that count was based on’ the evidence relating to the payments for ex- penses. Thus Proner argues that we must reverse the judgment of conviction on all counts and grant him a new trial. : one. ae 7 For the reasons set forth below. we need not decide the merits of the arguments Proner advances. _ No evidence involving unsubstantiated business expenses was presented with respect to Proner’s 1959 income tax 5a Appendix A return (the subject of count.2) and his 1959 Statement of Annual Income (the subject of count 3). The evidence adduced in support of count 2 concerned the distribution to Proner of the profits of the Palmer Division when it was liquidated in 1959 and a claimed. capital) loss carry- over deduction of $1000 arising from the overstatement of Proner’s loss in-1956 on the sale of his interest in the com- pany the business of which was transferred to the ‘¢Palmer Division?’ of S&E Novelty Company. The evidence in support of count 3 relates only to Proner’s failure to in- - elude im his Statement of Annual Income for 1959 his profit ‘distribution from the’ Palmer Division and his propor- tionate share of Palmer Import’s net income. It is true that Proner may have received amounts in 1959 for business expenses that he did mot report as in- come in his 1959 income tax return of in his 1959 State- ment of Annual Income. This poamngety arises from the fact that Palmer Import operated on a’ fiscal year running from October through September so that its 1960 return included operations during the last quarter of calendar ear 1959. No evidence was offered .as to whether some of the payments to Proner disallowed as deductions to Palmer Import in its 1960 fiscal year actually took place during calendar year 1959. Proner’s tax year was the calendar year and the payments to Proner disallowed as - deductions to Palmer Import for its 1960 fiscal year were introduced in evidence only with respect to Proner’s 1960 income tax return and 1960 Statement of Annual Income. This point was made clear in thé testimony of one of the» government’s witnesses and in the opening remarks by eaprmanrpesoe « . “ pee desist DOAN Wiha eA ENR het i 3 ( Appendey é the prosecutor. Although Judge Mansfield referred in his charge to ‘‘payments by Palmer to Proner during the pe- — riod from 1959 to 1964, which were improperly deducted,”’ and noted that ‘‘[a]s for the years 1959 to 1961 there was testimony * * * that the amounts disallowed had been ‘agreed to by Palmer and had been added to Proner’s in- come with Proner’s agreement,’’ his comments served only to remind the jury of the evidence relating to payments by Palmer Import during its fiscal years that included a portion of calendar 1959-~Thus the comments did not con- stitute a suggestion, contrary to the evidence, that any payments in 1959 affected Proner’s 1959 income tax return and Statement of Annual Income. Since, .therefore, the government presented no evidence involving payments to Proner for unsubstantiated expenses with respect to counts 2 and 3 and the judge’s charge cannot properly be read as suggesting that such evidence was presented, the jury’s verdict. on these counts must stand. _ Because the conviction on counts 2 and 3 is suihied to the evidence challenged by Proner and because the sen- tences on all counts were concurrent, the judgment of con- viction must be affirmed regardless of the validity of the conviction on the other counts.. Lawn v. United States, 355 TT. S. 339, 359 (1958) ;* United States v. Marino, 396 F. 2d 780, 781 (2d. Cir. 1968). ee ee BP ALMA mie During his summation defense counsel indicated that the prosecutor had remained silent even, though he knew 3. We note that on December 16, 1968 the Supreme Court de- nied certiorari in Cribb v. United States, 397 F. 2d 361 (Sth Cir. _ 1968), which involves an application of the Lawn doctrine. 37 U. S. *L. W. 3216 (U. S.) (December 17, 1968). Ta \ Appendian A \ his witness, Schur, was lying on the stand. The proseeutor replied to this comment in his summation by saying: ‘I | can’t take the stand and testify. But I am telling you right now that if I did not believé what [Schur] had told was true, I would never have let it stay the way it was on the record.” This reply defending the prosecutor’s in- tegrity and, by implication, vouching for Schur’s credibility does not require reversal.’ Seé U nited States v. Stromberg, 268 F. 2d 256, 270-71 (2d Cir. ), cert. denied, 361 U. S. 863 (1959). Moreover the point was waived since no ‘objection to the prosecutor’s remarks was raised at trial. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 238-40 (1940) ; United States —— 393 F: 2d 642, 645-46 (ed Cir. 1968). Affirmed. — “ POPS : - GEIB a - 9a Appendix B Judgment of the Court of Appeals Entered January 10, 1969 UNITED STATES COURT OF APPEALS For THE SEeconp Circuit At a Stated Term of the United States Court of Ap- peals, in and for the Second Circuit, held at the United States Courthouse in the City of New York, on the tenth day of January one thousand nine hundred and sixty-nine. Present: — Hon. Leonarp P. Moore, Hon. J. Josern Smirn, ' Hon. Pauu R. Hays, Circuit Judges. —— Unrirep States oF AMERICA, ‘Plaintiff-A ppellee, v. Leo Kapa, Defendant, Wiuiam PrRoner, Defendant-A ppellant. ——— oe Appeal from the United States District Court for the Southern District of New York. 10a ’ Appendix B This cause came on to be heard on the transcript of record from the United States District Court for the South- ern District of New York, and was argued by counsel.” ~ | Ox ConsipeRATION WHEREOF, it is now hereby Ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed. | _ A. Daniel Fusaro Clerk FILED January 10, 1969 - United States Court of Appeals Second Circuit 32573 + Bei a = / t -e* W044 ww “ee ow ~~ —_—- @ ii . a = . , : 7 ie. a gg. ©. | e p > ir >” ‘ © e | Be pv = BS | of ae 2° i. ier - re) w 4 | aes. ox ° vd = e 6 6 e >) — a a lee aa aaa . 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