Petition — Goldberg v. United States
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
*
*
.
ar i Cull by :
APR .
NO. 74-6293
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1974
PHILIP J. GOLDBERG,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Cértiorari
to the United States Court of Appeals
Por the Ninth Circuit
DONALD C. SMALTZ
515 South Flower Street
Suite 4404
Los Angeles, California 90071
ANDREW I. SPILKER
One Wilshire Building
Suite 2420
Los Angeles, California 90071
Attorneys for Petitioner
N * „ —
>
— 5 VI. PETITIONER WAS DENIED DUE PROCESS OF
LAW WHERE THE GOVERNMENT OESPITE HIS
REQUEST FAILED TO REVEAL THE FULL DE-
TAILS OF A PLEA BARGAIN ARRANGEMENT
Page MADE WITH THE KEY GOVERNMENT WITNESS
AND AFFIRMATIVELY MISLED THE JURY AS
Opinion Be low . * . . . * . > a ee €. * * „ . 1 * 3 a 8 — . ; g 7
VII. PETITIONER WAS DEPRIVED OF HIS FIFTH
SJuries@icetion « „„ „„ „„ „„ „„ „„ „% „% %% „% & @ @ 1 AND SIXTH AMENDMENT RIGHTS WHEN THE
Questions Presented ...++ +++ e# «#* ee ee — ST RO 0 ———
*
Constitutional Provisions and Statutes Involved 4 n 1
— ß 3 WITNESS’ PRIOR INCONSISTENT STATEMENTS .. 32
Reasons for Granting the Writ ....+-+++++e+-s+ 9 VIII. THERE IS NO WORK PRODUCT EXCEPTION
TO THE JENCKS ACT, AND WHERE A
GOVERNMENT ATTORNEY TAKES NOTES
I. THE GOVERNMENT'S EXTRACTION FROM THE
GRAND JURY OF A COMPLEX 17 COUNT IN- FROM THE KEY PROSECUTION WITNESS
AND READ OTE
DICTMENT AGAINST FIVE DEFENDANTS IN WITNESS WHO CORRECTS SAME, THE NOTES
THE TOTAL ELAPSED TIME OF ONE HOUR, :
THUS LIMITING THE GRAND JURORS’ ARE COMPELLABLE UNDER BOTH THE JENCKS
CONSIDERATION OF THE CHARGES, THE ACT AND BRADY V. MARYLAND. ... .-
EVIDENCE, THEIR DELIBERATIONS AND
VOTING TO 42 SECONDS PER COUNT PER
DEPENDANT, DENIED PETITIONER'S FIFTH
AMENDMENT RIGHT TO INDICTMENT BY AN
INFORMED GRAND JURY .....+++++s+-s 9
* . * * 38
r . ˙ U „ „ „% „ „% „% „ „ „ &
Appendices A - F
11. THE TOTALITY OF THE PROSECUTOR'S CON-
‘DUCT WITH THE GRAND JURY DENIED PETI-
TIONER A FURTHER FIFTH AMENDMENT RIGHT
-- THE RIGHT TO DUE PRO Ess. 13
111. THE TRIAL COURT DENIED PETITIONER, AN
INDIGENT, HIS FIFTH AMENDMENT RIGHT TO
DUE PROCESS AND SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL,
WHEN IT REFUSED TO REQUIRE THE
GOVERNMENT TO MAKE ITS JURY BOOK
AVAILABLE TO PETITIONER OR, IN THE *
ALTERNATIVE, REFRAIN FROM USING IT .. 18 ;
IV. PETITIONER WAS DENIED DUE PROCESS OF
LAW WHERE THE TRIAL COURT, DESPITE
PETITIONER'S TIMELY REQUEST, REFUSED
TO INSTRUCT THE JURY CONCERNING
EVIDENCE OF PETITIONER'S GOOD CHAR-
ACTER WHICH HAD BEEN RECEIVED DUR-
ING THE TRIX... 23
V. PETITIONER WAS DENIED DUE PROCESS OF
LAW WHERE THE TRIAL JUDGE INSTRUCTED
THE JURY THAT IT COULD CONSIDER EVI-
DENCE OF UNCHARGED MISCONDUCT AS
PROOF OF HIS GUILT, AND WHERE THE
PROSECUTOR ARGUED SAID UNCHARGED MIS-
CONDUCT TO THE JURY IN VIOLATION OF
COURT ORDER... 2. ee cee 3
(i)
(ii)
People v. Rochin, 342 U.S. 165 (1937 13
CITATIONS —
Ring v. U.S., U.S. „ 95 S.Ct. 164 (1974). 31
Pages oe . ere
Roberts v. LaVallee, 389 U.S. 40 (1967 21
Cases:
Rosenberg v. U.S., 360 U.S. 367 (19599) 41
Alford v. U.S., 282 U.S. 687 (193177 37
: Swain v. Alabama, 380 U.S. 202 (196) 20, 21
Anthony v. U.S., 256 F. 2d 50 (9th Cir. 1959) 26
U.S. v. Cramer, 447 F.2d 210 (2nd Cir. 1971) . . 16, 17
Baker v. U.S., 310 F. 2d 924 (9th Cir. 19627 26
U.S. v. Dionisio, 410 U.S. 1 (1973) 9, 13
Beavers v. Henkel, 194 U.S. 73 (1906) 11
U.S. v. Estepa, 471 F.2d 1132 (2nd Cir. 1972) ... 15
Bird Vv. U.S., 180 U.S. 356 (1901) * rr * . * . * 26
U.S. v. Granol ini, 301 F.Supp. 39 (b. c. R. 1. 1969) . 17
Brady v. Maryland, 373 U.S. 83 (1963) . 4, 30, 39, 41
U.S. v. Hilbrich, 341 F.2d 555 (7th Cir. 1965),
Branzburg v. Hayes, 408 U.S. 665 41978) . « « « See 1 cert. denied, 381 U.S. 941 (1963) 39, 42
Campbell v. U.S., 365 U.S. 85 (1961) + + 40 U.S. v. Katz, 78 F.Supp. 435 (M. Db. Pa. 1946). . 35
Clancy V. v. 8. , 365 U.S. 312 (1961) . — . 7 „ * — * 41 Ss Vv. Nixon, U.S. * 94 S. Ct.
309C (1974) >. * — * * > >. > >. >. * >. >. > * >. * * 33
Costello v. U.S., 350 U.S. 359 (1956) . 15, 16, 17, 18
U.S. v. Noah, 475 F. 2d 688 (9th Cir. 1973) 324
Davis v. Alaska, 415 U.S. 308 (1974) ..+-++#e-s 37
U.S. v. Parker, 469 F. 2d 884 (10th Cir. 1972 o « « 26
DeMarco v. U.S., 415 U.S. 449 (197). 31 ,
U.S.’ v. Smaldone, 484 F.2d 311 (10th Cir. 1973). 39, 42
Durbin v. U.S., 221 F. 2d 520 (D.C. Cir. 1954) . .. 15
U.S. v. Thoresen, 428 F. 2d 654 (9th Cir. 1970) . 16
Edgington v. U.S., 164 U.S. 361 (1896) . +++ +s 24
U.S. v. Vole, 435 F.2d 774 (7th Cir. 19700) 35
Ex Parte Bain, 121 U.S. 1 (1666 11
Washington v. Texas, 388 U.S. 14 (1967) —5 32
Giglio V. U.S., 405 U.S. 150 (1972) * . * . * * 30, 32
Weedin v. U.S., 380 F. 2d 657 (9th Cir. 1967) +. 24
Gilmore v. Lynch, 319 F.Supp. 105 (197o)h0ʒ - 21
Woods v. Georgia, 370 U.S. 375 (1962) . +++ +s + 12
Gordon v. U.S., 344 U.S. 414 (1953) . « «© © «© «© © «& 37 poe
Griffin v. Illinois, 351 U.S. 12 (1956) 21, 22 ” United States Constitution:
Hale V. Henkel, 201 U. 8. 43 (1906) — . . 5 . - — . 13 Fifth Amendment * 5 " * 9 5 8 5 5 8 * 8 8 1 > 1 ” 4
Hamer v. U.S., 259 F. 2d 274 (9th Cir. 1958) 223 „ : ee 4
Hilliard v. U.S., 317 F.2d 150 (D.C. Cir. 19633 40
Statutes:
Irvine v. California, 347 U.S. 128 (195) 13
18 U.S.C. § 3006A (Criminal Justice Act)) 22
Michelson v. U.S., 335 U.S. 469 (194%) 324
18 U.S.C. § 3500 (Jencks t)... + 4, 39, 40, 42
Napue v. Illinois, 360 U.S. 264 (19594 30
Palermo v. U.S., 360 U.S. 343 (1959) eee @ @ 40, 41 ABA Code of Professional Responsibility,
Ethical Consideration 3-1r•«90“))))))) + 34
(iii)
(iv)
ABA Standards Relating to the Administration of
Criminal Justice (197/16
No.. 74-
Attorney As Witness for Client in Federal Case,
9 A.L.R. Fed. 500 . . . . . . > @& > eh ee . . . 33 IN THE
Attorney General's Committee on Poverty and the SUPREME COURT OF THE UNITED STATES
Administration of Federal Criminal Justice
(1963) » @ 66% 86 © 6 © @€.4. 8.9) 2:9 2...) 21 October Tern, 1974
4 Blackstone 303 * * * * * * * * * >. * * * ‘a * * * * 11
PHILIP J. GOLDBERG,
"Brady v. Maryland, and the Prosecutor's Duty to
Disclose,” 40 U. ch. L. R. 112 (1972) ö Be 6 US 42 Petitioner
Charge of Judge Irving Kaufman, 17 F. R. D. 331. 10 vs.
Charge of Judge Leon Yankwich, 19 F.R.D. 117 . « . 10 UNITED STATES OF AMERICA,
8 Moore's Federal Practice, Criminal Rules Respondent.
* 6.02121 * . 4 * * * * >. * * * * * . >. * — > * 17
II Wigmore on Evidence, § 277, 3d Ed., 1940 . . 33
Petition for a Writ of Certiorari
to the United States Court cf Appeals
for the Ninth Circuit
OPINION BELOW
The Memorandum Opinion of the Court of Appeals,
which was directed by the Court not to be published in the
official reports, is attached hereto as Appendix A. An order
of the Court of Appeals denying a petition for rehearing is
attached hereto as Appendix B.
JURISDICTION
The judgment of the Court of Appeals was entered
on December 18, 1974. A timely petition for rehearing was
denied on February 6, 1975. However, because counsel for
petitioner did not receive notice of the denial from the
Ninth Circuit Clerk's office until February 21, 1975, he
applied to this Court and, pursuant to order of Honorable
William J. Brennan, Jr., Associate Justice of the Supreme
(v) ele
Court, on March 5, 1975, an Order Extending Time to Pile
Petition for Writ of Certiorari was granted, providing that
petitioner had until April 5, 1975, in which to file a
petition. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
QUESTIONS PRESENTED
The questions presented are as follows:
1. Whether the Government in extracting a 17-
count, complex indictment in a complicated mail fraud case
against petitioner and four co-defendants within a one-hour
period, thus limiting the grand jurors consideration of
the charges, the evidence, their deliberations, and their
vote to a total of 42 seconds per count per defendant, denied
petitioner's rights to accusation by a reasoned and informed
grand jury required by the Fifth Amendment; and
2. mmether the totality of the prosecutor's
conduct before the grand jury denied petitioner the Fifth
Amendment right to due process where the prosecutor:
extracted the indictment within a one-hour time period from
the grand jury; refused to permit petitioner to appear before
the grand jury when a subpoena duces tecum had been issued
to petitioner directing his appearance; utilized hearsay
testimony when better testimony was available; and had no
reporter present in an effort to insure the prosecutor's
manipulations were beyond judicial scrutiny; and
3. Whether petitioner, an indigent, was denied
his Fifth Amendment right to due process and Sixth Amend-
ment right to effective assistance of counsel where the
trial court refused to require the Government to make avail-
able its jury book to petitioner, or in the alternative, to
refrain from utilizing said book in the selection of the
jury, where the trial court had stated it would not authorize
compensation for the efforts of counsel incurred in research-
ing and assembling the voting records and idiosyncrasies of
the panel; and
4. Whether petitioner was denied due process of
law where the trial court, despite petitioner's request and
over petitioner's objection, refused to instruct the jury
concerning evidence of petitioner's good character which had
been received during the trial; and
5. Whether petitioner was denied due process of
law where the trial judge, in his charge to the jury, over
petitioner's objection, instructed the jury it could consider
evidence of uncharged misconduct against petitioner as proof
of petitioner's guilt of the charges alleged in the indict-
ment; and where the prosecutor argued certain uncharged
misconduct to the jury in direct violation of the trial
court's admonition that he not do so; and |
6. Whether petitioner was denied due process of
law where the Government, despite petitioner's repeated
requests, failed to reveal the full details of a plea bargain-
ing arrangement it had made with the key prosecution witness,
and affirmatively misled the jury as to the true nature of
said plea bargain arrangement; and
7. Whether the trial court's refusal to permit an
attorney for petitioner to testify to the Government's
threat to indict a key defense witness, and its further
refusal to permit an attorney for petitioner to testify to
a major Government witness's prior inconsistent statements,
constitute denial of petitioner's Sixth Amendment right to
have compulsory process for obtaining witnesses and to have
the assistance of counsel for his defense and Fifth Amend-
ment right to due process; and
8. Whether 18 U.S.C. § 3500, the Jencks Act,
contains an “attorney's work product exception"; and whether
a Government attorney's notes of conversations with the key
Government witness, to whom the prosecutors read back their
notes from time to time where the witness corrected same,
which notes were prepared “only after lengthy conversations
had occurred and a mutual understanding of the factual
situation” had been reached, if not compellable under the
Jencks Act, are compellable under the doctrine of Brady vs.
Maryland.
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
This Petition involves the following Constitutional
provisions:
a. Fifth Amendment, United States Constitution:
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of
War of public danger; nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation."
— b. Sixth Amendment, United States Constitution:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein
the crime shall have been committed, which district
shall have been previously ascertained by law, and to
be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for
his defence."
This Petition involves the following statute:
18 U.S.C. § 3500, Demands for production of state-
ments and reports of witnesses.
The full text is set forth in Appendix C.
STATEMENT OF THE CASE
In October, 1970, a 17-count indictment was filed
in the United States District Court, District of Arizona,
Phoenix Division, charging petitioner Philip J. Goldberg
and co-defendants, Edwin S. Newman, Emil Tucker, William
Miles Skillman, and Robert Stanley Clark, with violations
of 18 U.S.C. § 1341, the mail fraud statute. Petitioner
was the only defendant whose case went to trial. Tucker,
Skillman and Clark had all pleaded guilty to at least one
count of the indictment. Tucker and Skillman were sentenced
before and Clark was sentenced after petitioner's trial.
Immediately prior to trial, the Government dismissed three
of the 17 counts of the indictment, and severed co-defendant
Newman's case ‘rom petitioner's. After his testimony at
petitioner's trial, the indictment against Newman was
dismissed. The trial against petitioner commenced May 22,
1973, before a jury, and on July 14, 1973, the jury found
petitioner guilty on all 14 counts. (C.T. 78)*
On October 5, 1973, petitioner was sentenced to
a term of two years imprisonment on each of the 14 counts
of which he was convicted, the prison sentence to be served
concu¥rently, and a fine of $1,000 on each of the counts.
(C.T. 546)
The facts upon which the convictions were based
are as follows:
In late 1967, petitioner was the president of
Financial Security Life Insurance Company (hereinafter FSL“),
a privately held full reserve life insurance company chartered
in Arizona and having in excess of $112 million worth of
* „C. r.“ refers to Clerk's Transcript.
life insurance in force. (Ex. 1-0, p. 15)* In late 1967,
petitioner and his co-defendant, Edwin 8. Newman, implemented
a concept whereby executives could exchange restricted assets,
such as lettered stock, for a single premium annuity policy.
The effective commencement pay-off date of the policy would
coincide with the lifting of the investment restrictions
on the stock so that the stock could be sold by the holder
and in the intervening period the annuitant would have a
fully paid policy to be used for various purposes, including
collateral for loans. (M 80-82)
In the majority of instances, FSL took from the
annuitant as payment for the annuity policies a premium note
in the face amount of the policy. A premium note is
legitimate payment for a policy under Arizona law. (B 223-
224) The note, in turn, was usually guaranteed by a Colorado
holding company, Financial General Capital Corporation (here-
inafter "PGCC") in which petitioner owned a controlling
interest. To induce FGCC to guarantee the premium note to
PSL, the annuitant was usually required to transfer lettered
stock in double the amount of the premium note. The con-
veyance of the stock to FGCC was coupled with an agreement
whereBy it could sell the stock after a stated period to
fund its guarantee to FSL of the annuitant's premium note.
Concurrently with the execution of the premium note, the
annuitant was required to execute a “reservation of benefits
and proceeds rider, which provided that, as between PSL and
the annuitant, the value of the policy was reduced by the
amount of the outstanding premium note.
0 "Ex." refers to Exhibits at the trial.
ee The Reporter's Transcript, which is in 15 volumes, each
volume having a separate letter designation, lettered as
Volumes A through 0, inclusive, is referred to by the letter
designating the volume and the page number.
:
The annuitant would utilize the annuity policy to
collateralize a new or existing loan from a lender. (K 326-
336) (Ex. Q-16) When the lender would inquire of FSL as to
the value of the ennuity policy, PSL would inform the lender
that the policy was fully paid, that there were no liens or
encumbrances against the policy, and that the face value of
the policy was the cash surrender value of the policy.
Because FSL did not necessarily follow the same procedure
with regard to the issuance of all the policies, variations
evolved as time went on.
On April 18, 1969, after a New York bank seized
the proceeds of its statutory deposit there, FSL was sus-
pended by the Arizona Insurance Commissioner. (B 252-256)
PSL was prohibited from conducting any further business.
(B 256, L 391) After protracted litigation with the
Insurance Commissioner of Arizona, during the summer of
1969, the company was ultimately placed into receivership.
(L 388) €x. 3-NN)
A. The Scheme Charged in the Indictment
The indictment (C.T. 1-18) alleged that commencing
January 20, 1968, through January 9, 1970, petitioner and
his four co-defendants devised a scheme for obtaining money
by false statements to lending sources that could be induced
to loan money and to take as collateral to secure the repay-
ment of such loans, single-premium annuities of FSL. That
in execution of this scheme, petitioner and his co-defendants
caused annuity policies to be used to borrow money from per-
sons, banks and other lending sources, and that as to these
persons “that made and considered making loans“ to be
collateralized with single-premium annuity policies issued
by PSL, defendants caused the following false statements to
be made:
(a) That the premiums were paid in full on
the annuity policies - whereas, no payments except interest
payments had been made on the promissory notes accepted by
PSL.
(b) There were no liens or encumbrances of
record against single-premium annuity policies offered as
collateral - whereas, the reservation of benefits and pro-
ceeds riders reduced the policies to zero.
(c) That the face amount of the policy was
the cash surrender value that would be paid to the annuitant
after the due date specified in the policy - whereas, said
policies were worthless.
That defendants withheld and concealed from the
lenders the material facts that promissory notes had heen
accepted by FSL in payment of premiums, and that the policies
were subject to riders providing that the policies would be
reduced by the total amount unpaid.
That when these policies were issued by FSL “and
accepted by lenders as collateral" and presented for payment,
the lenders would be informed that no amounts were payable
because no payments had been made on the promissory note.
— The 14 count mailings of the indictment upon
which petitioner was tried involved annuities issued to six
individuals. Two of the co-defendants, Clark and Skillman,
received annuities. Tucker arranged for the placement of some
annuities. Newman was the vice president and a director of
FSL and president of the holding company, FGCC.
Petitioner's defense was that the annuity concept
was lawful and proper, that he relied upon his attorneys,
including Newman, to insure the legitimacy of the program, and
that his attorneys, including Newman, reviewed and drafted
the responses to the lenders. That FSL rather than acting
in concert with Skillman as the indictment alleged, had
in fact been defrauded by Skillman, who had perverted the
annuity concept for Skillman's own financial gain, and in
the process bilked PSL out of over a million dollars.
REASONS FOR GRANTING THE WRIT
I. THE GOVERNMENT'S EXTRACTION FROM THE GRAND
JURY OF A COMPLEX 17 COUNT INDICTMENT AGAINST FIVE DEFENDANTS
IN THE TOTAL ELAPSED TIME OF ONE HOUR, THUS LIMITING THE
GRAND JURORS' CONSIDERATION OF THE CHARGES, THE EVIDENCE,
THEIR DELIBERATIONS AND VOTING TO 42 SECONDS PER COUNT PER
DEFENDANT, DENIED PETITIONER'S FIFTH AMENDMENT RIGHT TO
INDICTMENT BY AN INFORMED GRAND JURY.
This Court very recently reiterated a long-standing
principle of American jurisprudence:
"The Fifth Amendment guarantees that no
Civilian may be brought to trial for an infamous
crime ‘unless on a presentment or indictment of a
Grand Jury. This constitutional guarantee presup-
poses an investigative body ‘acting independently
of either prosecuting attorney or judge,' Stirone v.
United States, 361 U.S. 212, 218 . . . whose mission
is to clear the innocent, no less than to bring to
trial those who may be guilty." U.S. v. Dionisio,
410 U.S. 1, 16-17 (1973).
poe The Government, through an Assistant United States
Attorney and an attorney from the Department of Justice,
extracted this complex 17-count indictment against petitioner
and his four co-defendants in a single one-hour session on
October 14, 1970. (A 72-76) This necessarily implies* that
in that one hour the grand jurors: (i) were informed of the
allegations of the indictment, (ii) heard and considered the
e Because the Assistant U.S. Attorney “didn't want a
reporter present," there is no reporter's transcript of what
occurred in this one-hour period. (A 76)
evidence, (iii) deliberated and voted to return a true bill.*
This case was not a garden-variety criminal case.
At the trial, the Government during its case in chief (which
spanned 22 days) called 35 witnesses.
The indictment alleged that five named defendants
each acted in concert with the others and various persons
in execution of the scheme alleged. Seventeen different
lenders were stated to be involved. (Count 1) Out of the
17 count mailings, no two of these mailings were identical,
either in format or in content. No two transactions which
were the subjects of the events from which the mailings alleged
in the indictment emanated were identical. In some instances
FSL was seeking to obtain back policies it had issued; in
others it was responding to inquiries from lenders or attempt-
ing to gain information from annuitants as to the where-
abouts of policies; in other instances it was acknowledging
the recordation of assignments, etc. Six of the letters
were addressed to FSL from various individuals or organiza-
tions (Counts 3, 10, 11, 15, 16, 17); two were addressed
to a co-defendant, Skillman (Counts 7 and 12); five were
addressed to various lenders (Counts l, 5, 6, 9, 14); one
was addressed to petitioner (Count 2); one to an annuitant,
Stacey (Count 8); and one to a third party who was neither
an annuitant nor a lender (Count 8).
The trial judge at the commencement of the trial
observed that the case was "complicated" (A 200) and he
required 27 minutes just to read fourteen counts of the in-
0 Grand juries are charged at the time they are empaneled
that their “prime function is to decide whether or not suffi-
cient evidence has been produced to indicate that a crime has
probably been committed by the person accused. See Charge of
Judge Irving Kaufman, 17 F.R.D. 331, 335; Charge of Judge
Leon Yankwich, 19 F.R.D. 117, 121.
-10-
dictment to the petit jury. (A 202-218) The prosecutor's
opening statement to the petit jury was prefaced with the
observation, “We are faced with an extremely complex case .
Following that observation it took the prosecutor 1-1/2
hours to explain the nature of the charges in his opening
statement to the petit jury. (A 279) |
Petitioner is not suggesting that there is or
should be some legal rule of thumb by which the length of
the grand jury proceedings has to be proportionate to the
length of the trial. Rather, he notes these facts only to
demonstrate that the case was complex“ (the prosecutor's
observation), that it was “complicated” (the trial judge's
observation), and that it was impossible for the grand
jury to give any meaningful consideration to the probable
cause finding required for indictment by a grand jury, as
the Constitution requires.
Except for the sagest of judges, it is an impossi-
bility to read and understand this indictment in one hour,
let alone consider any evidence against five defendants.
At least since the time of Blackstone the proper
performance of the grand jurors function required that the
jurora:
"be thoroughly persuaded of the truth
of an indictment, so far as their evidence goes;
and not to rest satisfied merely with remote
probabilities: a doctrine that might be applied
to very oppressive purposes." 4 Blackstone 303.*
This principle has continued to be a requirement for the
proper operations of grand jurors in this country. Ex
Parte Bain, 121 U.S. 1, 11 (1886), quoting Grand Jury Charge
of Justice Field that:
e As quoted in Beavers v. Henkel, 194 U.S. 73, 84 (1904).
-ll-
"No person shall be required... to.
answer for any of the higher Crimes unless this
{grand jury] body . . . shall declare upon careful
deliberation, under the solemnity of an oath, that
there is good reason for his accusation and trial."
(Emphasis added)
The grand jury is supposed to function as the pri-
mary security of the citizenry against hasty prosecutions
and thus is charged with the duty “to determine whether a
charge is founded upon reason or is dictated by an intimida-
ting power or by malice and personal illwill." Woods v.
Georgia, 370 U.S. 375, 390 (1962). It cannot begin to
implement its constitutional duty in a case where the prose-
cutor is able to ramrod a complex indictmént through it in
a one-hour interval. ;
As observed in Branzburg v. Hayes, 408 U.S. 665,
\
701-702 (1972):
"It is only after the grand jury has
examined the evidence that a determination
whether the proceeding will result in an indict-
ment can be made... .” |
However, when the total elapsed time of the grand
jury's consideration of the charges, hearing 1 evidence,
deliberations and voting can all be caused to ccur within a
one-hour period, thus allotting a total elapsed time of 42
seconds consideration per defendant per count, there is no
way it can be seriously contended that the grand jury
“examined” -- let alone understood and carefully deliberated
upon the charges of the indictment. :
A prosecutor's extraction of an indictment in a
case like this constitutes ipso facto a perversion of the
grand jury system and a denial of petitioner's right to
indictment by a reasoned and informed grand jury as required
by the Fifth Amendment. The statements noted supra from
Ex Parte Bain, supra; Woods, supra; Branzburg, supra; and
-12-
Dionisio, supra are meaningless when a prosecutor who in
fact controls the evidence that comes before a grand jury
can accomplish what was done here.
This Court has long held that the abuses of the
grand jury system occurring through a prosecutor's unilateral
dealings with that body would be remedied, stating:
"Were such abuses called to the attention
of this Court, it would doubtless be alert to re-
press them. Hale v. Henkel, 201 U.S. 43, 65 (1906)
The Court stated in 1973 that "the Constitution could
not tolerate the transformation of the grand jury into an
instrument of oppression." Dionisio, supra, at 401 U.S.,
p. 12. That is precisely what occurred in this case --
through the unilateral dealings of the prosecutor with the
grand jury. The conduct of the Government in this case is
truly no less “shocking to the conscience” than the stomach
pumping of Rochin (People v. Rochin, 342 U.S. 165, 169 (1952)),
or the illegal month-long bugging of the defendant's bedroom
in Irvine v. California, 347 U.S. 128 (1954).
Because petitioner was denied his right to be
indicted by a grand jury which had the duty but not the
opportunity to fairly consider the charges and the evidence,
petitioner was denied a fundamental right at the very com-
mencement of the criminal process. This Court should
issue the writ so that it can put an end to these per-
nicious activities of prosecutors before Federal Grand Juries.
II. THE TOTALITY OF THE PROSECUTOR'S CONDUCT
WITH THE GRAND JURY DENIED PETITIONER A FURTHER FIFTH
AMENDMENT RIGHT -- THE RIGHT TO DUE PROCESS.
The deprivation suffered by petitioner did not end
with merely the prosecutor's glib one-hour presentation of
this complex case and the denial to the grand jury of any
meaningful opportunity to consider the nature of the .warges,
the evidence and the propriety of the indictment. Rather, it
was accomplished by the following, which exacerbated the
denial of petitioner's fundamental right to indictment by a
grand jury and resulted also in a denial of petitioner's
right to due process.
(1) Petitioner had been subpoenaed to appear
before the grand jury at its October 14, 1970, session. The
subpoena required him to appear and produce records relating
to FSL. He duly appeared with the records on October 14.
However, before appearing before the grand jury he was inter-
cepted by the prosecutor who informed him he could not
appear before the grand jury and instructed petitioner that
he must turn over the records to the prosecutor.* (A 77-78)
Petitioner requested the opportunity to testify, but the
prosecutor refused.
(2) The Government's evidence before the grand
jury consisted solely of two witnesses, neither of whom was
percipient to the transaction or events. One was a postal
inspector who testified that he was before the grand jury
"about “30 to 45 minutes maybe." (A 69) The other, Trexler,**
testified approximately 15 minutes. (A 79)
(3) No reporter's transcript of these witnesses’
testimony or the prosecutor's comments to the grand jury was
kept, because there was no reporter present since the prose-
cutor "didn't want one there.” (A 76) So, there is no
© In addition to the prosecutor cancelling the subpoena
to petitioner, he cancelled the subpoenas of other persons
percipient to the activities giving rise to the allegations
in the indictment.
Se Trexler's trial testimony was solely concerned with the
custody of certain records of FSL which he acquired pursuant
to his designation as the receiver for FSL. (B 124-129)
-l14-
record of what was said in their bricf interval of testimony
-- which lasted between 45 minutes and one hour “maybe.”
Petitioner concedes that an accused has no absolute
right to be called as a witness before the grand jury; how-
ever, by denying petitioner the right to testify, as was
petitioner's duty pursuant to the grand jury subpoena in
this case, the prosecutor was thus able to seal off any other
evidence or explanation thereof favorable to petitioner,
thereby insuring that the gossamer position of the Govern-
ment before the grand jury was not disturbed. This was
plainly wrong, as this Court has continually recognized
the primary and nearly exclusive role of the grand jury as
an agent of compulsory disclosure. Branzburg v. Hayes,
408 U.S. 665, 668 (1972). This Court has not recognized
the United States Attorney's Office as a proper substitute
for the grand jury room. The grand jury subpoena is a
process of the district court, not a compulsory administra-
tive process of the United States Attorney's Office as used
by the Government in this case. Cf., Durbin X. S. . 221 F.2d
520, 522 (D.C. Cir. 1954).
Petitioner acknowledges that under the authority
of Costello v. U.S., 350 U.S. 359 (1956), hearsay evidence
is admissible before a grand jury, and its use has been
sanctioned in subsequent cases. Even so, the Second Cir-
cuit has invoked its supervisory powers and held that the
prosecutor has an affirmative duty to tell the grand jury
that it is listening to hearsay. See U.S. v. Estepa,
471 r. 2d 1132 (2nd Cir. 1972), and collection of cases there-
in. Here there is nothing to indicate that the admonition
that is required in the Second Circuit was in fact given
to the grand jurors. Petitioner submits that the utiliza-
tion of non-percipient witnesses should not properly be a
-15-
basis upon which indictments are rendered when percipient
witnesses are readily available. That position is advanced
by the American Bar Association. See ABA Standards Relating
to the Administration of Criminal Justice, Sections 3.5 and
3.6, p. 90 (1974). Even if this Court declines to modify
Costello or, in its supervisorial powers, require a warning
similar to that of the Second Circuit, still the utilization
of such witnesses cannot be condoned in this case since,
when it is added to the other machinations of the prose-
cutor, the totality of circumstances requires reversal of
petitioner's conviction.
Petitioner acknowledges that at the time the grand
jury heard that testimony of the two witnesses, viz.: on
October 7, 1970, he did not have an absolute right to a
transcript absent a previous request and offer to pay the
expenses of a reporter. U.S. v. Thoresen, 428 F. 2d 654
(9th Cir. 1970). However, this concession does not operate
to mitigate the Government's conduct in manipulating the
grand jury in the instant case.
By refusing to have a reporter present to record
the testimony because the prosecutor “didn't want one the
Government was able to mask the charade of de minimus evi-
dence presented to the grand jury from discovery by any-
one for all time.
In U.S. v. Cramer, 447 F.2d 210, 214 (2nd Cir.
1971), when faced with an issue where appellants there con-
tended that failure to record grand jury testimony constituted
a denial of due process, the court, per Judge Friendly, in
denying the validity of this contention, stated:
“While appellants raise the spectre
of arbitrary and discriminatory prosecutorial
conduct in selecting those cases in which grand
jury testimony will be recorded, it will be time
enough to deal with such a problem when, as, and
-16-
if a defendant comes forth with any evidence
suggesting bad faith on the part of the govern-
ment--something appellants have utterly failed
to do here.”
Judge Oakes, in his dissenting opinion in that case, found
the Government's failure to record a violation of Rule 6(d),
F. R. Cr. P., if not the due process clause of the Fifth
Amendment. . ." (Id., at 221)
Recordation is recognized as the preferred method
of dealing with witnesses’ testimony before the grand jury,
as it assists in controlling overreaching or improper examina-
tion of witnesses by the prosecutor." 8 Moore's Federal
Practice, Criminal Rules 1 6.02[2]. See U.S. v. Gramolini,
301 F.Supp 39, 42 (D.C.R.I. 1969).
The Government's dealings with the grand jury in
these matters clearly deprived petitioner not only of his
Fifth Amendment right to due process, but even a colorable
— implicit in the concept of * liberty. There
is more here than a “spectre of arbitrary and discriminatory
prosecutorial misconduct." There is actual misconduct
and perversion when the actions of the prosecutor are juxta-
posed with the total elapsed time of one hour for the grand
jury's total consideration of this case.
The trial court at a pretrial hearing, while
acknowledging that petitioner's arguments re perversion
were meritorious, indicated that it did not have the author-
ity to grant petitioner the relief requested, viz.: dis-
missal of the indictment. (A 89-90)
The Panel appeared to acknowledge the errors cited
by petitioner in these arguments, but cited U.S. v. Costello,
supra, as controlling in holding that the prosecutor's
perversion was not “clear, prejudicial error." (Memorandum,
page 7) An attempt to extend Costello to these lengths is
17
plainly wrong, as Costello holds only that an indictment is
valid, although based entirely on hearsay. (Id., at 362.)
Petitioner's research disclosed that Costello has been cited
in at least 17 Supreme Court opinions, 195 Circuit Court
opinions, and 137 District Court opinions. In not one of
those opinions was there ever a hint that Costello would be
authority to countenance the type of perversion which peti-
tioner has demonstrated in this case.
This case is a shocking example of prosecutorial
manipulation and perversion of the grand jury and the con-
comitant deprivation of petitioner's Fifth Amendment rights.
The writ should be granted to clarify the extent of an |
accused's rights before the grand jury, since appellate
courts refuse to recognize that in the twentieth century
something other than fifteenth century notions of due pro-
cess are required.
III. THE TRIAL COURT DENIED PETITIONER, AN INDI-~
GENT, HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS AND SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN IT
REFUSED TO REQUIRE THE GOVERNMENT TO MAKE ITS JURY BOOK
AVAILABLE TO PETITIONER OR, IN THE ALTERNATIVE, REFRAIN FROM
USING IT. ne
At a pretrial conference petitioner inquired of
the Government “whether or not they intend to utilize a
jury book in connection with the jury selection process . .
(A 185)
A jury book is a compilation prepared by the U.S.
Attorney's Office on the voting record and idiosyncracies of
individual jurors on the panel. (A 185-186) The prosecutor
indicated the Government's possession of such a book and
its intention to use it. (A 186) Petitioner then moved
that either the Government be prohibited from using the
jury book in connection with the jury selection process
18
-18-
or, in the alternative, that it be made available to peti-
tioner s counsel. (A187) Petitioner was indigent and
his counsel had been appointed under the Criminal Justice
Act. The court indicated that it would not authorize compen-
sation for the efforts incurred in researching and assembling
the voting records and idiosyncrasies of the panel to pre-
pare a comparable book by petitioner. (A 187) The court
denied petitioner's request and the Government did use its
jury book in the selection of the jury. (A 189)
There is no question but that petitioner was at a
distinct disadvantage when the trial court refused to require
the Government to make available its jury book to petitioner
or, in the alternative, not to utilize it, since:
(1) Petitioner was an indigent and a nonresident
of the district and state wherein the trial was held; and
(2) Petitioner's counsel was neither a resident
of nor maintained an office in the district or even in the
state where the trial was held, and was appearing pro hoc
vice. further, there was no correspondent local counsel to
assist trial counsel because of petitioner's indigency;
and petitioner was entirely without any useful information
on the prospective jurors; and
(3) The voir dire conducted by the trial judge
to the entire panel at one time, under the Arizona system*--
* Under the Arizona system" of jury selection, the entire
panel of jurors (37 in this case) was called, sworn and
interrogated at one time by the judge. After challenges
for cause were exercised by each side, Government and
defense counsel were then required to separately state in
writing their peremptory challenges and jointly submit them
to the clerk, so that the first 12 individuals who were not
challenged by either petitioner or the Government were then
called by the court and became the jurors in the case.
Under this system, at the time of exercising the challenge,
neither counsel has any idea what jurors the other side has
peremptorily challenged since it is stated in a separate
writing by each side, which is then handed to the clerk
who makes the tabulation. Petitioner's objection to this
procedure was overruled. (A 190)
-19-
a procedure requiring petitioner to exercise his peremptory
challenges concurrently with those of the prosecutor, and
thus in effect in the dark--rendered useless the peremptories
allowed petitioner.
The value of petitioner's access to a jury book,
which gives at least the voting records and proclivities
of the indivi. 1al jurors, cannot be denied. This is particu-
larly true when the procedure for voir dire--the Arizona
system--involved the en banc questioning of the entire panel
of jurors at one time. Envisage the scene from petitioner's
vantage point: The 37 members of the panel, some seated in
the jury box and some seated in the spectators’ section, all
being read voir dire questions and assertedly ready to orally
respond sua sponte to a question if it pertained to him or her.
Neither petitioner nor his counsel had any meaningful oppor-
tunity even to observe the impact of the questions on each
of the individual jurors.
Under these circumstances, the denial of peti-
tioner's access to the jury book is particularly acute when
neither he nor his counsel is local“ to the community and
where petitioner did not have the financial wherewithal to
institute an inquiry into the background of the jurors.
Thus, because of his indigency the petitioner's peremptories
were rendered a nullity when contrasted with the Government.
This Court has observed that the right of a
defendant to peremptory challenges:
"is ‘one of the most important rights secured to
the accused.' .. . The denial or impairment of the
right is reversible error without a showing of
re judice. Swain v. Alabama, 360 U.S. 7925 219
- (Emphasis added)
In Swain, Mr. Justice White, after a review of
some of the reasons that may prompt a party to exercise his
peremptory challenges, concluded:
-20-
“Hence, veniremen are not always judged
solely as individuals for the purpose of exercising
peremptory challenges. Rather, they are challenged
in light of the limited knowledge counsel has of
chen. 380 U.S. at 221.
Since Griffin ». Illinois, 351 U.S. 12, 17-18
(1956), the concepts of due process and equal protection
require that if a defendant be indigent, the Government has
an obligation to prevent discrimination and wealth from work-
ing an inequality in the criminal process.“
Equal protection of the laws requires that the
mere fact of indigency should not place a defendant at a
disadvantage, Roberts v. LaVallee, 389 U.S. 40, 42 (1967).
Indigents have the same right of access to the courts as do
any other defendants. That right to a fair trial “encompasses
all the means a defendant or petitioner might require to
get a fair hearing from the judiciary on all charges brought
against him or grievances alleged by him." Gilmore v. Lynch,
319 F.Supp. 105, 110 (1970), aff'd. sub nom., Younger v.
Gilmore, 404 U.S. 15 (1971).
While petitioner was required to exercise his
challenges by total guesswork predicated on the vague and
inadequate knowledge of the jurors he was able to obtain
from tlie manner of voir dire conducted by the court, the
Government was able to rely and did rely on the information
contained in its jury book. By denying petitioner access
* While the Government may not be required to relieve an
accused of his poverty, it may properly be required to
minimize the effect of an accused's poverty on the Govern-
ment's administration of justice.
A problem of poverty arises before the system of
criminal justice when at any stage in the proceed-
ings lack of means in the accused substantially
inhibits or prevents the proper assertion of a
right or a claim of right.” Attorney General's
Committee on Poverty and the Administration of
Federal Criminal Justice, pp. 5—11 (1963).
to the Government's jury book or, in the alternative,
prohibiting the Government from using that book, the court
prohibited petitioner from standing on an equal footing with
the Government in intelligently exercising his challenges
to any juror. This imbalance resulted from petitioner's
indigency, since the trial court would not have authorized
payment of the necessary expenses by petitioner in an effort
to compile a similar book.*
The Sixth Amendment right to counsel includes
the right to effective assistance of counsel. Certainly,
if counsel for an indigent defendant cannot stand on equal
footing with the Government prosecutor in the knowledge of
the venireman's proclivities, propensities and voting
records, this concept is violated particularly when
indigent's counsel could be put on à par with the Govern-
ment by permitting access to the book or simply denying
the prosecutor the right to use that book. It matters not
whether the right in this instance be labelled as concomi-
tant to the due process clause of the Fifth Amendment or
as falling within that portion of the Sixth Amendment
guaranteeing the right of the defendant to the effective
assistance of counsel, or both. What matters is that the re
can be no equal justice when the kind of trial a man gets
depends on the amount of money he has." Griffin, supra,
351 U.S. at p. 19.
The Panel below in upholding the trial court's
ruling found no “prejudicial error“ and cited to Hamer x.
* Counsel for petitioner was appointed pursuant to the
Criminal Justice Act, 18 USC § 3006A, et seq. The United
States pays the expenses of an indigent's defense in a
criminal case, but it is up to the trial judge to deter-
mine which expenses are properly reimbursable and the
Chief Judge of the Circuit to approve that determination.
18 USC § 3006A(b) (3).
-22-
U.S., 259 F.2d 274 (9th Cir. 1958) [p. 8 of Memorandum).
A citation to that case is erroneous, since Hamer expressly
held that if the Government used a jury book, then:
„ it is up to the individual judge to see
that neither attorney has an unfair advantage
over the other, whether by use of jury lists or
jury books, or any other knowledge or information
that exists with respect to a juror's previous
action." 259 F.2d at 281.
Here the trial court violated the holding of Hamer when it
permitted the Government to utilize the jury book and thus
affirmatively permitted the Government an unfair advantage
over petitioner. Petitioner submits that his conviction
must be reversed.
Iv. PETITIONER WAS DENIED DUE PROCESS OF LAW
WHERE THE TRIAL COURT, DESPITE PETITIONER'S TIMELY REQUEST,
REFUSED TO INSTRUCT THE JURY CONCERNING EVIDENCE OF PETI-
TIONER'S GOOD CHARACTER WHICH HAD BEEN. RECEIVED DURING THE
TRIAL. |
At the trial, affirmative evidence as to petition~
er's good character was elicited through the testimony of
witness Maryalice Darling.* She testified as to petitioner's
excellent business reputation and general reputation for
honesty and integrity. (B 199-201) |
Prior to the trial court's instructions to th
jury, petitioner, at the instruction conference, submitted
proposed jury instructions concerning this character
evidence, but the trial court refused to give any character
evidence instruction whatsoever in the apparent mistaken
belief that no reputation or character evidence had been re-
ceived during the trial. A copy of the proposed instruction
* Mrs. Darling was called as a Government witness, and the
favorable character testimony was elicited by way of
cross-examination, with the trial court's permission, in
order to avoid calling her later during petitioner's case
in chief. (B 198-199)
-23-
is attached hereto as Appendix D. ‘Petitioner's counsel
attempted to convince the trial court that there had in
fact been character evidence received during the trial,
but to no avail. (0 84-86, 111, 113-114) No good character
instruction of any sort was given by the trial court in its
charge to the jury.
The relevance of a criminal defendant's character
in resolving probabilities of guilt, and his right to intro-
duce such evidence, together with appropriate instructions
to the jury have long been recognized by this Court.
Edgington v. U.S., 164 U.S. 361 (1896); Michelson X. U.S.
335 U.S. 469, 476 (1948).
In the instant case, petitioner was deprived of
his right to have the jury instructed that it could consider
the evidence of petitioner's good character as raising a
reasonable doubt of his guilt of the charges against him.
“It is reversible error not to instruct as to defendant's
theory of the case if the record contains evidentiary
support for the theory and the theory is supported by law.”
U.S. v. Noah, 475 F.2d 688, 697 (9th Cir. 1973).
The Memorandum Decision of the Court of Appeals
below is totally silent as to this fundamental error com-
mitted by the trial judge, despite the fact that this issue
was fully briefed and presented to the Panel for its deter-
mination. This is particularly inexplicable when the Ninth
Circuit has held that evidence of good character may be
sufficient alone to create a reasonable doubt of guilt...
and that the jury must be so instructed. Weedin v. U.S.,
380 F. 2d 657, 660 (9th Cir. 1967).
We submit that the question of petitioner's
criminal intent was the key issue at the time of trial. Had
the jury been instructed as to the weight it could give to
the good character testimony that had been received in
evidence, it might well have tipped the scales in peti-
tioner's favor. The failure of the trial court to give
the jury a proper character evidence instruction, despite the
clear evidentiary support therefor, deprived petitioner of a
fundamental right accorded him by due process of law, and
petitioner's conviction must be reversed; alternatively,
this Court should exercise the power of supervision over
the lower federal courts and reverse petitioner's conviction,
since the trial court's actions were a substantial departure
from the accepted and usual course of judicial proceedings,
and this departure was sanctioned by the Court of Appeals
in its failure to respond to the trial court's error, much
less correct it.
V. PETITIONER WAS DENIED DUE PROCESS OF LAW
WHERE THE TRIAL JUDGE INSTRUCTED THE JURY THAT IT COULD
CONSIDER EVIDENCE OF UNCHARGED MISCONDUCT AS PROOF OF HIS
GUILT, AND WHERE THE PROSECUTOR ARGUED SAID UNCHARGED
MISCONDUCT TO THE JURY IN VIOLATION OF COURT ORDER.
At the trial, evidence was received of certain
conduct and acts of petitioner which allegedly constituted
“wrongs” or misconduct of petitioner, but which were not
charged against petitioner in the indictment. *
While such evidence may be admissible against a
defendant in a criminal case for limited purposes such as,
* Said evidence included (1) foredating and backdating of
annuity policies; (2) the two suspensions of FSL, petitioner's
insurance company, by the Arizona Insurance Commissioner;
(3) the liquidation of FSL; (4) the issuance of single
premium annuity policies by FSL in consideration for the
execution of premium notes; (5) the issuance of annuity pack-
age documents in locations other than where indicated on
their face; and (6) that reservation of benefits and proceeds
riders issued in connection with the single premium annuities
were in some cases required to be approved by the Arizona
Department of Insurance.
-25-
e.g-., showing intent, absence of mistake, modus operandi and
complete transaction, this Court and, as far as petitioner
is aware, all common law jurisdictions require that the jury
be appropriately cautioned as to the limited purpose of
such evidence to avoid the obvious possibility that a jury
might convict a defendant for acts or conduct other than
those with which he is charged in the indictment. Baker v.
U.S., 310 F.2d 924, 929 (9th Cir. 1962); Anthony v. U.S.,
256 F.2d 50, 52-53 (9th Cir. 1958); U.S. X. Parker, 469 F.2d
884, 889-891 (loth Cir. 1972). As this Court has held in
connection with the duty of the trial judge to properly and
fully charge the jury:
"It is well settled that the defendant
has a right to a full statement of the law from
the court, and that a neglect to give such full
statement, when the jury consequently fall into
error, is sufficient reason for reversal." Bird
v. U.S., 180 U.S. 356, 361 (1901). 7
This fundamental principle was ignored in this case.
At the instruction conference, petitioner's counsel
submitted six proposed instructions which would have charged
the jury that this evidence could not be considered by it as
evidence of petitioner's wrongdoing; however, over petitioner's
strenuous objection, the trial court not only refused to give
instructions as proposed, but modified them in such a way
so as to instruct the jury that, while it could not consider
such evidence “standing alone" as any evidence of petitioner's
wrongdoing, it could consider these items of evidence "along
with all the other evidence in the case." * The trial court's
recognition that these items of evidence could not be con-
sidered by the jury as proof of petitioner's guilt of the
* The six proposed instructions juxtaposed with the six
instructions as given by the trial court, are attached
hereto as Appendix E-1 through E-6.
charges against him--as shown by the “standing alone“
language--was completely and effectively nullified when
the trial judge affirmatively allowed the jury to consider
this evidence with all the other evidence, without in any
way cautioning the jury as to the limited use it could make
of this evidence.
The effect of instructing the jury that it could
consider these alleged six uncharged misdeeds together with all
the evidence in determining petitioner's guilt was exacerbated
when the prosecutor, in closing argument, argued these
uncharged acts of misconduct as proof of petitioner's guilt,
in direct violation of the trial court's admonition that he
not do so, and after a lengthy discussion between counsel
and the trial court prior to the trial court's admonition.
(O 115-123)
"MR. SMALTZ: I have stated my position
for the record.
"THE COURT: Well, [Mr. Lebowitz] where
are you going to stand on the useless individual
items like that? Are you going to argue them or
t, or are you going to couch your argument in
terms of the real crux of your case, which is
the lulling letters?
"MR. LEBOWITZ: I have intended to do
That.
THE COURT: Huh?
"MR. LEBOWITZ: I have intended to do
just that.
"THE COURT: Okay. Do it, then, and
we won't have a problem on appeal.” (0 123)
In direct defiance of this admonition, and despite
his express representations to the contrary, the prosecutor
proceeded to argue these items of evidence as proof of
petitioner's guilt. (0 274, 279, 281, 285-286 and 289)
Additionally, the prosecutor went out of his way to empha-
size to the jury that the trial court would be instructing
227
it to consider all these matters with “all of the other
evidence." (0 289)
It is submitted that petitioner was denied funda-
mental due process rights when the trial judge instructed
the jury that it could consider evidence of uncharged mis-
conduct against petitioner as proof of petitioner's guilt
of the charges alleged in the indictment, and where such
evidence was argued to the jury by the prosecutor in direct
violation of the trial court's order. The Memorandum
Decision of the Court of Appeals below has no reference to
this issue, which was fully presented to it in the appellate
briefs filed with said court. We submit that if this Court
does not reverse petitioner's conviction because of the
fundamental deprivation of due process, this Court should
exercise its supervisory powers and reverse the conviction
because of the substantial departure in the courts below
from the accepted and usual course of judicial proceedings.
VI. PETITIONER WAS DENIED DUE PROCESS OF LAW
WHERE THE GOVERNMENT DESPITE HIS REQUEST FAILED TO REVEAL
THE FULL DETAILS OF A PLEA BARGAIN ARRANGEMENT MADE WITH
THE KEY GOVERNMENT WITNESS AND AFFIRMATIVELY MISLED THE
JURY AS TO THE TRUE NATURE OF SAID AGREEMENT.
At the trial, it was revealed that the Government
had entered into a contingency plea bargaining “arrangement”
with petitioner's co-defendant Edwin Newman (the key Govern-
ment witness against petitioner) * whose case was severed
* Newman, an attorney and since 1959 an associate of peti-
tioner's and number two man in petitioner's organization,
was on the stand for five days; he had been intimately
connected with petitioner's business activities for over
a decade (J 127-128); he was vice-chairman of the board of
PSL and president of FGCC (J 130) he was a signatory to all
the correspondence emanating from FSL to the lenders, and
all the count letters from FSL emanated from him; along with
another attorney, he had provided the form of responses to
the lenders that FSL utilized, which resulted in petitioner's
indictment. (J 341-345)
from petitioner's on the very day the trial was scheduled
to begin and seven days before the trial actually commenced.
(C.T. 572-574) The written plea bargain agreement, which
was represented to petitioner, his counsel, the jury and
the trial court as the full and entire agreement between the
Government and Newman is attached hereto as Appendix F. It
provided in substance that if petitioner pleaded guilty to
a felony as charged in the indictment, Newman would plead
guilty to two misdemeanor violations of 26 U.S.C. § 7203,
and the Government would recommend probation; however, if
petitioner was found guilty by a jury after a trial (which
is what occurred) and if Newman testified against petitioner
in accordance with his statements given to the U. S. Attorney,
then upon the U. S. Attorney's exercise of discretion
Newman would plead guilty to one count of the indictment
1 felony) and the Government would recommend probation.
On cross-examination of Newman, petitioner's
counsel sought to elicit all the details concerning said
agreement and the events that led up to it. Newman made
reference to discussions between the Government and his
counsel concerning offers to testify, meetings on this sub-
Sout ent documents concerning plea-bargaining arrangements.
(K 164-168) Newman denied that the Government would permit
him to plead to a misdemeanor if he testified at petitioner's
trial, even though he recognized that he would lose his
license to practice law if tainted with a felony, and that
the practice of law was of “paramount interest" to him.
(K 184-185)
Thereafter, in order to discover all information
in the hands of the Government pertaining to its plea-
bargaining arrangement with Newman, petitioner moved the
-29-
trial court, both orally and by way of written motion,
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. U.S., 405 U.S. 150 (1972), to require the Govern-
ment to produce all evidence that related to said plea
bargain. (C.T. 361 at 364) (r 101) The motions were denied,
and the Government produced nothing. (L 57, 103)
During the Government's closing rebuttal argument,
the prosecutor flatly told the jury that Newman had no
option to plead to a misdemeanor, that there was no deal
with Newman to let him plead to a misdemeanor, and that any
suggestion by petitioner's counsel to the contrary was his
imagination. (0 259)
On December 17, 1973, approximately ten weeks after
petitioner was sentenced and his Notice of Appeal filed, the
indictment against Newman was dismissed and he was allowed
to plead guilty to two misdemeanor violations of 26 U.S.C.
§ 7203, and he was placed on probation. (C.T. 546, 579-580)
The record is crystal clear that the Government
not only wilfully kept from petitioner's counsel and the jury
the full details of its agreement with Newman, but affirma-
tively misled the jury as to its true nature. Contrary to
the prosecutor's misrepresentation, the fact is that the
Government not only had the option of giving Newman a mis-
demeanor after his testimony at petitioner's trial, and
upon petitioner's conviction, but it also exercised that
option. With Newman's testimony the key to the Government's
case against petitioner, and with his credibility a central
issue in the case, summary reversal of petitioner's conviction
under these circumstances is mandatory. Napue v. Illinois,
360 U.S. 264 (1959); Brady, supra; Giglio, supra.
The Court of Appeals, in its Memorandum Decision
-30-
below, stated that the Government's decision “to go some-
what further than the written agreement provided" to allow
Newman to plead to a misdemeanor was “made after the trial."
(Memorandum, p. 10) There is no evidence in the record to
support the Court of Appeals’ conclusion that the decision
to allow such a plea was in fact made after the trial,
except for the unsworn assertions of the prosecutor in the
Government's brief filed with the Court of Appeals. On the
contrary, the circumstantial evidence is overwhelming that
Newman was in fact expecting to plead to a misdemeanor when
he testified, considering the value and necessity of his
testimony to the Government's case, his intimate coopera-
tion with the prosecutor throughout the proceedings, and the
fact that he did ultimately plead to a misdemeanor. Peti-
tioner attempted to seek all possibie evidence that would
pertain to the plea bargain arrangement during the trial,
but was denied the opportunity to do so.
We submit that pursuant to this Court's decisions
in Ring v. U.S., U.S. „ 95 S.Ct. 164 (1974), and
DeMarco v. U.S., 415 U.S. 449 (1974), if this Court chooses
not to summarily reverse petitioner's conviction, at the
very least a remand to the district court for an evidentiary
hearing is required in order to pinpoint exactly what the
full arrangements between Newman and the Government were,
and when they were made.
The Court of Appeals in its Memorandum Decision
further found no prejudice to petitioner because he was
informed that there had been an agreement for recommended
probation" and petitioner was given “full opportunity to
cross-examine Newman concerning promises." (Memorandum
Decision, p. 10) We submit that the Court of Appeals totally
missed the point. Probation for Newman was only one rele-
vant aspect of any deal that might have been made between
him and the Government; the crucial consideration was
whether Newman was going to be allowed to plead to a mis-
demeanor or to a felony -- the latter event leading to much
more serious consequences for Newman, including being dis-
barred from practicing law.
Further, whether petitioner had an opportunity to
cross-examine Newman concerning promises is irrelevant to
the due process issues raised herein, and the duty of the
Government not to suppress evidence or deliberately mislead
and misinform the jury as was done here. Indeed, in Giglio,
supra, defense counsel “vigorously cross-examined" the Gov-
ernment witness in seeking to reveal any deal between the
Government and said witness -- and it was precisely because
such cross-examination did not in fact bring out the truth as
to the relationship between the Government and the witness
that required a reversal in Giglio, as it does in the
instant case.
VII. PETITIONER WAS DEPRIVED OF HIS FIFTH AND
SIXTH AMENDMENT RIGHTS WHEN THE TRIAL COURT REFUSED TO LET
PETITIONER'S ATTORNEYS TESTIFY AS TO THE GOVERNMENT'S THREAT
TO INDICT A KEY DEFENSE WITNESS AND TO A MAJOR GOVERNMENT
WITNESS' PRIOR INCONSISTENT STATEMENTS.
In Washington v. Texas, 388 U.S. 14, 19 (1967),
this Court held that:
"The right to offer the testimony of wit-
nesses and to compel their attendance if necessary,
is in plain terms the right to present a defense
„ „ * Just as an accused has a right to confront
the prosecution's witnesses for the purpose of
challenging their testimony he has the right to
present his own witnesses to establish a defense
and this right is a fundamental element of due
process of law.”
22
Just last term in U.S. v. Nixon, U.S.
—
94 S.Ct. 3090, 3109 (1974), this Court clearly reaffirmed
these principles:
"The right to the production of all
evidence at a criminal trial .. . has consti-
tutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a
criminal trial the right ‘to be confronted with
the witnesses against hin“ and, ‘to have com-
pulsory process for obtaining witnesses in his
favor. Moreover, the Fifth Amendment also
guarantees that no person shall be deprived of
liberty without due process of law. It is the
manifest duty of the courts to vindicate those
guarantees and to accomplish that it is essen-
tial that all relevant and admissible evidence
be produced.”
These fundamental rights of petitioner were trampled
on by the trial court and the Court of Appeals when they
effectively held that: An attorney for a defendant in a
criminal case is incompetent as a matter of law as a witness
for the defense. This holding finds no support in any
federal law or case. See Annotation, Attorney As Witness
for Client in Federal Case, 9 A.L.R.Fed. 500.
At the trial, petitioner sought to present evidence
through the testimony of his lead trial counsel, Mr. Smaltz,
that the prosecutor had threatened to indict a proposed
defense witness (Schwartz) if said witness testified for
the —
Additionally, through associate trial counsel,
Mr. Nazarian, petitioner sought to prove that a major Govern-
ment witness (Skillman) had made a statement to Mr. Nazarian
prior to trial totally inconsistent with his trial testimony
concerning his motives for testifying. Each attorney's
proposed testimony was presented to the trial court by way
of an offer of proof outside the presence of the jury.
(I. 259-262, 265-266)
The trial court simply ruled that no attorney in
the case would be permitted to testify (L 278), but gave no
-33-
reason for its ruling. Assuming that the trial court's
refusal to allow such testimony was based on its belief
that the attorneys were not competent to testify, the trial
court committed plain error, affecting petitioner's
substantial rights.
Petitioner is unaware of any case which makes an
attorney incompetent to testify on behalf of his client
solely because of the attorney-client relationship. Ethic-
ally, where the events giving rise to his testimony could
not have been anticipated prior to the time he accepted
the representation of the client, and the testimony is
relevant and material to the client's cause, it is essential
that the attorney come forward and testify. ABA Code of
Professional Responsibility, Ethical Consideration 5-10.*
The Government's efforts to intimidate Schwartz
from testifying occurred when, four days before trial was
scheduled to commence, the prosecutor called Mr. Smaltz and
told him that there was a significant possibility that
Mr. Schwartz would be indicted if he testified and that
Mr. Schwartz should receive his Fifth Amendment admonition
before he testified, and that Mr. Smaltz should tell that
to Mrr Schwartz. (L 259-260) Mr. Smaltz advised Mr. Schwartz.
Mr. Schwartz had served as one of FSL's attorneys
during the interval covered by the indictment, and his
testimony was totally consistent with petitioner's position
* This consideration provides: In the exceptional situation
where it will be manifestly unfair to the client for the
lawyer to refuse employment or withdraw when he will likely
be a witness on a contested issue, he may serve as advocate
even though he may be a witness. 8
Footnote 12 thereto provides: It is a general rule that
a lawyer may not testify in litigation in which he is an
advocate unless circumstances arise which could not be
anticipated and necessa to prevent a miscarriage 2
tice. n those rare cases where the testimony of an attor-
ney is needed to protect his client's interests, it is not
only proper but mandatory that it be forthcoming. (Citation
omitted)" Ethical Consideration 5-10, and Footnote 12
thereto, ABA Code of Professional Responsibility.
547
-34-
and contrary to the testimony of the key Government witness
Newman on the latter's role and advice which Newman gave to
petitioner. The threat was communicated to counsel on
May 11, which was the day after Newman agreed to testify
for the Government and was designed to inhibit the defense
efforts to challenge Newman's testimony.*
The trial court found the prosecutor's conduct
"highly improper . .. under the circumstances of this
case,” but refused to permit petitioner to bring this conduct
to the attention of the jury. (L 296)
The relevance of Mr. Smaltz's proposed testimony
cannot be questioned -- it tended to show the Government's
conscious weakness of its case against petitioner, a weli-
known and time honored evidentiary principle, and petitioner
would have been entitled to an appropriate jury instruction
and to argue this principle to the jury.** U.S. v. Katz,
* The prosecutor's action was designed to and did have a
"chilling effect" on Schwartz, who when called as a wit-
ness by petitioner addressed the court outside the presence
of the jury, narrated the facts that he had been inter-
viewed in 1968 by the Postal authorities, had been in
contact with the U. S. Attorney since 1969, and that no
action or suggestion of his criminal involvement had ever
been expressed until Mr. Smaltz told him of the prosecu-
tors threat. Schwartz refused to testify on behalf of
petitioner. (L 291) At the direction of the court,
Schwartz was granted immunity and ultimately he testified.
(L 296-297) The Government was aware of the nature of
Schwartz's testimony and his importance to petitioner's
case, since it had petitioner under electronic surveillance
between January 25 and March 6, 1973 and had intercepted
conversations between petitioner and his attorney. (A 115-
141) The fact that eavesdropping had been conducted had
previously been denied by the Government, who only admitted
it after petitioner brought it to the court's attention
pursuant to an article in the April 29, 1973, edition of
The New York Times. (C.T. 231-253)
** “It has always been understood the inference, indeed, is
one of the simplest in human experiences - that a party's
falsehood or other fraud in the preparation and presenta-
tion of his cause, his fabrication or suppression of evi-
dence by bribery or spoliation, and all similar conduct,
is receivable against him as an indication of his
[cont'd on next page]
-35-
78 F.Supp. 435, 438 (N. b. Pa. 1948); U.S. v. Vole, 435 F.2d
774, 778 (7th Cir. 1970).
In the context of the circumstances of this case,
the inability of petitioner to present this evidence to the
jury monumentally prejudiced petitioner, since Schwartz was
the one witness in a position to refute auch of Newman's
testimony which was so damaging to petitioner, and the prose-
cutor was well aware of this fact. Additionally, petitioner
had been claiming that the Government was using coercive
tactics with regard to other witnesses which it called to
influence those witnesses’ testimony, and this testimony
regarding Schwartz would have corroborated this claim.
Mr. Nazarian's proposed testimony would have
flatly impeached the testimony of Skillman, a key Government
witness whose testimony covers 1,096 pages of transcript.
Skillman had pleaded guilty to the indictment and had been
sentenced prior to petitioner's trial. He was also serving
concurrently the first year of a seven-year sentence on a
previous conviction unrelated to this matter. (G 29-30)
Skillman had been maintained by the Government at
a hotel in Phoenix from May 5, 1973, through the trial and
even-after the close of the evidence on July 12. (G 29-30)
On direct examination, over petitioner's objections, the
Government elicited statements regarding Skillman's coopera~
tion as a Government aide in this and other cases, and asked
Skillman whether his “placement in a motel" was at his
“insistence” or the Government's arrangement. Skillman denied
[cont'd]
consciousness that his case is a weak or unfounded one;
and from that consciousness may be inferred the fact it-
self of the cause's lack of truth and merit. The infer-
ence thus does not apply itself necessarily to any specific
act in t cause ut operates indefinite thou
strongl against the whole mass of alle acts consti-
tutin his cause.” Vol. II, Wi re on Evidence, p. 120,
§ 277, 3a Bd. 1940. (Emphasis added.)
BSA
-35A-
that he insisted on it or that it was at his behest. (E 4i7-
423) Nazarian would have testified. that Skillman had told
him in a pretrial interview on January 31, 1973, that if he
were going to testify on behalf of the Government he required
comfortable accommodations and would not stay at the county
jail; that he had no sympathy for the lenders (the supposed
victims in this case who at trial disclaimed knowledge of the
arrangements between the annuitants and FSL) since the lenders
were attempting to “clean up“ old loans by virtue of their
previous dealings with the annuitants. (L 265-266) Skillman
not only testified contrariwise on direct; he also on cross-
examination denied making any of these statements. (L 266)
Thus, Nazarian's testimony would have impeached
Skillman's testimony on both direct and cross-examination
and demonstrated Skillman's bias against petitioner. It was
a theory of the defense that Skillman would say anything,
whether fact or fiction*, to convict petitioner as long as
the Government kept him comfortable, and considering that
the lengthy prison sentence he had begun serving might be
shortened, since the Government was going to seek an early
parole for Skillman. (G 40-41)**
At the offer of proof, the trial court was
informed that Mr. Nazarian would withdraw as associate
* Skillman purported to testify in practically ipsissimis
verbis to no fewer than 83 conversations with petitioner
between August, 1968, and April, 1969. (E 414 H 235) His
trial testimony contradicted his other prior statements in
various ways--most particularly in his attribution to peti-
tioner of actions and responses that he had previously
attributed to Newman. Thus, Skillman was able to shift all
of the responsibility from Newman to petitioner.
** The significance of Nazarian's proposed impeachment of
Skillman becomes even greater, considering the prosecutor's
statement in closing argument that Skillman had to stay in
a motel because the only federally-approved detention center
was at least 60 miles from the courthouse. (O 257-258) Not
only did this constitute flagrant prosecutorial misconduct,
as there was no evidence to support this fact, but as
petitioner found out after trial, the statement was patently
false--the Government had been utilizing the Maricopa County
jail in Phoenix since several months prior to trial. See
Memorandum, p. 9.
AG
-36-
counsel if the court would permit his testimony. The
court refused. (L 288)*
In Davis v. Alaska, 415 U.S. 308 (1974), this
Court, in the context of the scope of the confrontation
clause, held that the Constitution mandated a defendant's
right to fully probe by way of impeachment the possible bias
of a Government witness because of his vulnerable status
as a probationer. This Court long ago recognized the con-
stitutional right of a defendant to impeach a witness by
showing that his testimony was biased because of his being
in federal custody at the time of trial. Alford X.. L.
282 U.S. 687 (1931).
It was essential that petitioner be allowed to
fully impeach Skillman in connection with his bias against
petitioner and his motives for testifying. It is submitted
that the failure of the trial court to allow petitioner his
right to impeach a key Government witness "(withheld]) from
the jury information necessary to a discriminating appraisal
of {the witness's] trustworthiness to the prejudice of
petitioner's substantial rights." Gordon v. U.S., 344 U.S.
414, 417 (1953).
aa
* Under the circumstances present in this case, even this
offer to withdraw was not legally or ethically required.
See page 34, supra. No offer was made by Mr. Smaltz
to withdraw as counsel in connection with the threat to
Mr. Schwartz, since it would have been futile. The trial
court had previously denied a motion by Mr. Smaltz to
withdraw for other reasons two months before the trial
because of the delay this would have caused; and
associate counsel, Mr. Nazarian, who had never tried any
case, criminal or civil, in any court, could not have
conducted the trial.
-37-
VIII. THERE IS NO WORK PRODUCT EXCEPTION TO THE
JENCKS ACT, AND WHERE A GOVERNMENT ATTORNEY TAKES NOTES
FROM THE KEY PROSECUTION WITNESS AND READS THOSE NOTES BACK
TO THE WITNESS WHO CORRECTS SAME, THE NOTES ARE COMPELLABLE
UNDER BOTH THE JENCKS ACT AND BRADY V. MARYLAND.
Four days before the scheduled commencement of
trial, Newman made his deal with the Government and partici-
pated in a 2-1/2 hour question and answer session with the
Government attorneys, which resulted in a 90-page sworn
statement. The statement concluded with the prosecutor's
representation that:
"We intend to continue this discussion
off the record at a later time this weekend, and
there are individuals . as well as Goldberg
transactions „ which will be explored at a
further time." (K 182)
Petitioner was furnished with a copy of this statement.
Thereafter, Newman met on at least five separate
occasions with Government attorneys. The meetings were
lengthy and there was no reporter present. At those meetings
the only record of what Newman said was the notes of the two
prosecutors, which they would read back to Newman from time
to time, and Newman would correct them.* (K 177-180)
* Newman's direct testimony at trial spanned 440
pages of reporter's transcript and covered a multitude of
matters which were not noted in this sworn statement to the
Government.
At the commencement of cross-examination of Newman,
petitioner promptly moved pursuant to the Jencks Act for
production of the notes taken by the Government attorneys.
The trial court denied the motion on the basis that there was
a “work product privilege” that protected the notes.
* Neither petitioner nor his counsel was present at any of
these meetings.
Thereafter, petitioner renewed his motion (K 184) and
requested that the court at least conduct an in camera
inspection. The trial court refused to even examine the
notes and again denied the motion. (K 240-241) Petitioner
subsequently renewed his motion, contending that there was
no work product exception and, even if there were, the
material was compellable under Brady v. Maryland, 373 U.S.
83 (1963), and its progeny. (C.T. 381-384) It was denied.
At no time did the trial court ever examine the
notes, and they were never made a part of the record. In its
brief to the Court of Appeals, the Government contended that
there was an in camera inspection of the notes; but at oral
argument, they withdrew that contention and instead lodged
a two-inch thick packet of papers with the Court of Appeals
which the prosecutor described blithely as “the notes."
There is no work product exception in § 3500.
Indeed, it expressly requires that after a witness has
testified on direct:
"The court shall, on motion of the
defendant, order the United States to produce any
statement . of the witness in the possession
of the United States which relates to the subject
matter as to which the witness has testified."
18 USC § 3500(e) (Emphasis added.)
a
At least two circuits have squarely held that
there is no work product exception. U.S. v. Smaldone, 484
F.2d 311, 317 (loth Cir. 1973) ["We recognize there is not
a work product exception as such. ] and U.S. X. Hilbrich,
341 F.2d 555, 557 (7th Cir. 1965), cert. denied, 381 U.S.
941 (1965) ["There is no ‘work product exception to the
Jencks Act.].
The Panel below resolved petitioner's contention
as follows:
"Apart from the question whether such
notes were exempt from the Jencks Act (18 USC § 3500)
as ‘work product they were not statements of the
-39-
defendant within the meaning of 3500(e). We find
no clear, prejudicial error.” (Memorandum, p. 8)
(Emphasis added.)
Petitioner never contended the notes were his statements--
but rather the statements of the witness Newman.
Petitioner does not know whether the Court of
Appeals examined the notes tendered to it by the prosecutor.
Petitioner assumes that it did; otherwise, the observation
that the notes do not constitute statements is inexplicable.
The Jencks Act vests in the trial court the primary
responsibility for resolving disputes about whether or not
notes constitute a statement, which court is required by
the terms of the Act to conduct an in camera inspection.“
Here the trial court refused. If the decision of the trial
court after a preliminary examination had been adverse,
petitioner would at least have had the opportunity to take
additional extrinsic evidence to the statement and conditions
under which it was taken. Ogden v. U.S:, 303 F.2d 724, 732-
733 (9th Cir. 1962). See also, Hilliard v. U.S., 317 F.2d
150 (D.C. Cir. 1963).
How the Court of Appeals was able to make an ex
parte determination when the papers left with it were not
part of the record and not submitted through a procedure
that entitlea petitioner to challenge the accuracy of the
Government's counsel's assertions as to completeness or
authenticity, is an anomaly. There is no rule of law or
precedent for such a procedure, and the utilization of
same flat out violates the commandments of the Jencks Act.
Palermo v. U.S., 360 U.S. 343, 349 (1959); and Campbell v.
U.S., 365 U.S. 85, 93 (1961).
* § 3500(c) provides: “If the United States claims that any
statement ordered to be produced . does not relate to
the subject matter of the testimony of the witness...
the court shall order the United States to deliver such
statement for the inspection of the court in camera."
The Panel, in apparently holding that the “notes” that was consistent with petitioner's innocence, or tended
did not constitute statements, ignored not only this Court's to exculpate petitioner, or was otherwise useful to
holding in Palermo, supra, but also the witness's own testi- petitioner, was nevertheless compellable under the Brady
mony that the notes were read back to him from time to time rationale, whether or not it was a “statement” for Jencks
for correction (K 177-180), and the Government's contentions Act purposes. The court's failure to order the Government
that the notes were prepared “only after lengthy conversa- to turn over same to petitioner constituted reversible
tions had occurred and a mutual understanding of the factual error. See “Comment, Brady v. Maryland, and the Prosecutor's
situation had been reached." (Government's Brief to the Ninth Duty to Disclose,” 40 U.Chic.L.Rev. 112, 119-120 (1972).
Circuit, p. 64.) The express language of § 3500(e) defines The rule established by the Circuit in this case
a statement of the witness as follows: is contrary not only to the holdings of the Seventh and
“The term statement, as used . . . means Tenth Circuits in Smaldone, supra, and Hilbrich, supra, but
"(1) a written statement made by said also to the express requirements of 18 U.S.C. § 3500. This
witness and signed or otherwise adopted or
approved by him." Court should issue a writ of certiorari to resolve this
This Court has held that the doctrine of harmless issue.
error should be employed with restraint in Jencks Act cases, CONCLUSION
Rosenberg v. U.S., 360 U.S. 367 (1959), stating: For the foregoing reasons, the writ should issue.
"An appellate court should not confi-
dently guess what defendant's attorney might DA
have found useful for impeachment purposes in TED: April 2, 1975.
withholding documents to which the defendant
is entitled.” Id., 360 U.S. at 371. Respectfully submitted
In Clancy v. U.S., 365 U.S. 312 (1961), the Court DONALD C. SMALTZ
rejected the Government's harmless error argument, stating: a SPILKER
8 "Since the production of at least some —
of the statements withheld was a right of the
defense, it is not for us to speculate whether By J
they could have been used effectively.” Id.,
365 U.S. at 316. ; .
Atto
Petitioner's repeated motions for the Government's rneys for Petitioner
notes of interviews with Newman were not only premised on
the Jencks Act, but also the rule of Brady v. Maryland,
373 U.S. 83 (1963). (L 57) (C.T. 361-364) The Panel below
never reached this question. Since the notes were prepared
only after the prosecutor and the witness Newman arrived at
a "mutual understanding, anything in the notes that contra-
dicted the witness or explained any transaction in a fashion
601
-42-
@- <= -- qe
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Tux Unrrep States or Asenica, }
Plaintif..\ ppeliee,
er > = No. 74-1023
Pnulir J. Gooarro,
— MEMORANDUM
[December 18, 1974]
On Appeal from the United States District Court
for the District of Arizona
Before: KOFISCII and KILKENNY, Cireuit Judges
and SWEIGERT, District Judge*
Appellant Goldberg appeals from a judgment imposed by the
Court after his conviction by a jury on fourtcen counts of an
indictment charging violation of 18 U.S.C. § 1341—use of the mail
to defraud. He was sentenced to a temn of two years imprison-
ment on cach of the 14 counts, the sentences to be served concur-
rently, and a fine of $1,000 on cach count.
Each of the 14 counts charged appellant with a separate trans-
actiona! instance of use of the mail for the purpose of executing
a scheme and artifice to defraud. The scheme alleged in cach
count was in substance and to the effect that appellant, as Presi-
dent of Financial Security Life Insurance Company, caused the
company to issue to various individuals evrtain so-called single
premium arnuity policies, purporting to be premium fully pre-
paid, with a view to their use by the annuitant as collateral for
*The Honorable William T. Sweigert, Senior United States District
Judge for the Northern Distnet of California, sitting by designation.
APPENDIX A
—_
3 The United States of America vs.
borrowing money from banks and other lending sources: that
when lenders, considering such loans, inquired of Financial Seen-
rity Life Insurance Company (PSL) concerning the status of
such policies, appellant caused certain false statements to be made,
Le., that the premiums were paid in full—whereas no payments
exeept interest payments had been made on certain promissory
notes accepted by FSL as premium payment; that there were no
liens or encumbrances of record against the policies offered as
collateral—whereas certain reservations of benefits and proceeiis
riders reduced the policies to virtually zero; that the face amount
of the policy was the cash surrender value that would be paid to
the annuitant after the due date specified in the policy whereas
aid policies were worthicss; that appellant coneealed and with-
held from the lenders the material facts that promissory notes
had been accepted by PSL in payment of premiums and that the
policies were subject to riders providing that the policies would
be reduced by the total amount unpaid; that when the policies
issued by FSI. were accepted by lenders as collateral and pre-
sented for payment the lenders would then be informed by appcl-
lant that no amounts were payable because no payments had been
made on the promissory notes. .
It was contended by appellant at the trial that the policies in
question had been properly issued, that the false statements to
the lenders “were believed to be correct” and that appellant “had
relied upon the advice of his various attorneys.” (App. Opp.
Brief, p. 6)
Appellant makes no contention that the evidence, if believed by
the jury, would be insufficient to support findings adverse to
appellant on those issucs of fact.
Appellant makes no contention that the evidence, if believed
by the jury, would be insufficient to support findings adverse to
appellant on those issues of fact.
Appellant asserts insufficieney of the evidence only with respect
to the use of the mails clement of the cuse, fe. (1) the implicd
finding that the letters referenecd in Counts 10 and 12 had been
placed in the mail, and (2) the implied finding that the mailings
referenced in Counts 2, 12, 16, 4 and 14 were for the purpose
of exceuting, within the meaning of Section 1341, the scheme
alleged in those Counts.
APPENDIX A
Philip J. Goldberg 3
Other grounds fer revenal presented by appellant have to do
with claimed errors of the trial judge.
RE INSUFFICIENCY OF TIE EVIDENCE
1. Counts 10 and 12—re Proof of Mailing
It is well established that one “causes” the mails to be used,
within tie meaning of Section 1341, when he does an act with
knowledge that the use of the mails will follow in the ordinary
course of business or where such use can reasonably be foreseen.
Pereira v. United States, 347 US. 1, &9 (1954).
Appellant here does not contend in his brief that the letters
referenced in the above counts, if mailed, were not so “caused”
to be mailed by him; he contends only that there is insufficient
evidence to support the finding that the letters referenced in
Counts 10 and 12 were actually placed in the mail.
The mailing of the letter referenced in Count 10, Exhibit 13A,
a letter of December 31, 1968, allegedly mailed by one Hoover of
Western General Corporation to FSL, was supported only by the
testimony of Newman (of FSL.) to the effect that he received the
letter in the mail. However, Hoover could not recall whether he
had mailed that letter to Newman or had delivered it to one Ken-
slow for delivery to Newman. There is no evidence concerning
Hoover's customary practice concerning how letters of this kind
were transmitted. The evidence shows, however, that shortly after
the date of the letter Hoover and Kenslow did come to Phocnix
where Kenslow personally presented the annuity policies referred
to in the letter, along with other documents, to Newman. Al-
though a copy of the letter appeared in FSL files, no receipt
stamp appears on its face; Newman's testimony about receiving
the letter “in the mail” was qualified by adding: “as far as I can
determine.”
The letter referenced in Count 12 was a letter dated January
24, 1968 (Ex. 10B), allegedly mailed by Newman of FSI. to one
Skillman of American Mortgage Company. Exhibit 10B was an
unsigned copy of the letter. There is no testimony from anyone
at FSL concerning the mailing of the letter nor any testimony
concerning the custom and practice relating to the mailing of
such letten Newman merely testified that Exhibit 10B was a
APPENDIX A
4 The Unsied States of America vs.
copy of a letter of January 24, 1969 from him to Skillman. Nei-
ther the original of the letter nor the envelope was produced at
trial. The copy was received in evidence upon testimony of Skill-
man that he “reecived” the letter in the mail.
It is scttled that use of the mails, like most other facts, need
not be established by dircet evidence; it may be established by
cirewnstantial evidence provided, of course, that the cireumstanecs
are such as to reasonably support an inference of mailing beyond
reasonable doubt. United States v. Fassoulis, 445 F.2d 13, 17 (2d
Cir. 1971). Appellant contends, however, that there is no such
evidence of the mailings refereneed in Counts 10 and 12.
An examination of cases discussing the standards and quide-
lines for proof of the mailing requirement of Section 1341 (Cmited
States v. Fassoulis, supra; United States v. Leathers, 135 F.2d
507 (2d Cir. 1943); Whealton v. United States, 113 F.2d 710, 713
(1940); United States v. Baker, 50 F.2d 122 (2d Cir. 1931);
Meckett v. United States, 90 F.2d 462 (7th Cir. 1937); Freeman
v. United States, 20 F.2d 748 (3d Cir. 1927), leads us to the
donelusion that proof of mailing the letter referenced in Count 10
falls far short of the guidelines sct by even the most liberal of
these cases, eg, Fassoulis, Leathers, supra) ond is insufficient
within the meaning of such cases as Baker, supra; Freeman,
supra; Mackct!, supra and Whcalton, supra.
We are of the opinion, however, that within the meaning of
United States v. Leathers, supra, the evidence is sufficient to sup-
port the implicd finding of the mailing of the letter (Ex. 10B)
referenced ia Count 12.
2 Re Counts 2, 12, 16, 4 and 14—re Proof that Mailing
— tm Execution of the Schemes Charged
Again we note that appellant makes no contention that the
letters referenced in the above counts, if they were mailed in
exceution of the alleged scheme, would not have been “caused” to
be mailed by appellant within the meaning of Section 1341. De-
fendant argues only that the letters were not “for the purpose of
executing the scheme” within the meaning of the statute.
Since we have already determined that the convictions on Count
10 must be reversed for failure to prove mailing of the letter ref-
APPENDIX A
Philip J. Goldberg 5
erenced in that count, it is unnecessary to consider defendant's
further contention that the letters were not in execution of the
scheme.
The letter referenced in Count 2, Exhibit 4A, was a letter dated
July 31, 1908, from one Tucker to FSI. relating to single pre-
mium life insurances policies—-not single premium annuities. Ap-
pellant contends that, therefore, it could not be considered to be
in furtherance of the scheme charged in Count 2 which refers
only to annuities.
The evidence is to the effect that in the summer of 1968 one
Tucker, a New York financial broker, had called FSI. to discuss
morigage loan commitments and later to discuss the issuance of
single premium life insurance policies (not annuity policies).
Eventually, Tucker visited PSL at Phoenix and discussed single
premium life iusurance policics with defendant. It was not, how-
ever, until near the end of August, 1968, ie, after the date of
his July 31, 1968 letter, that Tucker for the first time discussed
= defendant the possibilities of using single premiwn annui-
We find no merit in appellant's uarrow point; the correspond-
ence in question led to the ultimate use of annuity policies. Al-
though the July 31, 1968 letter refers only to life insurance pol-
ieics (as distinguished from annuity policies), Tucker's subsequent
contribution of ide concerning annuity policies stemmed from
that carlier correspondence and the letter, therefore, can be
deemed to have been in that sense in furtherance of the scheme
charged.
The letter referenced in Count 16, Exhibit 5Y, was a letter
dated May 6, 1969, from Royal National Bank to FSL demanding
that FSL make payment to the bank of certain annuities under
a policy which the bank had previously accepted as collateral
for a loan. The evidence is to the effect that the letter, making
demand for payment by FSL, was mailed 18 months after the
bank had actually accepted the policies as collateral.
Appellant contends, citing ond relying on United States v.
Maze, 414 U.S. 395 (1974); Perr r. United States, 363 U.S. 370
(1960); Kuna v. United Staics, 323 U.S. 88 (1944), that the
scheme had reached fruition when the bank accepted the policies
APPENDIX A
6 The United States of America vs.
as collateral and that, therefore, the letter could not be considered
to have been in execution of the scheme charged in Count 16.
In Marc. supra, the letter in question was mailed to 1 bank
by the true owner of the bank“ eredit card requesting adjust-
ment of his account after Maze, the defendant in that case, had
stolen and misused the eredit card to obtain lodging at various
motels. The court held (p. 402) that Mare scheme had already
reached fruition when he cheeked out of the motcls and that
there was no indication that the success of his scheme depended
in any way on the adjustment of loss between his victims.
In the present case, however, the letter in question was from
the bank which had been victimized by its acceptance of the
policy as collateral, but it was written, not to another victim
(as in Maze), but to the defraudcr, himself, seeking, not merely
to adjust a discovered loss, but to realize on the policy collateral,
something that appellant herein would reasonably have cxpected
to happen at some time during the period the bank held the
collatcral in reliance upon appcllant’s false representation.
Whether a mailing is in furtherance of a scheme docs not
depend upon mechanical determination of when the mailing
oceurs but upon a determination of the contribution made by
the mailing to the scheme’s success. United States v. Kelem,
416 F.2d 346, 350 (%h Cir. 1969).
We are of the opinion, therefore, that here, appellant's scheme
had not reached fruition, as in Maze, but was in effect continuing
up to the time of writing the letter (Ex. 5Y) the mailing of
which was caused by appellant and was also in this sense in exe-
eution of the scheme.
The letter referenced in Count 4, Exhibit SB, was a letter
dated December 17, 1968, from Newman of FSL to Herman of
First National Bank of Mason City in response to a letter inquiry
from Ilerman, dated Deeember 9, 1968, concerning an applica-
tion of one Darden for a loon based on an FSL. policy as
collateral.
The evidence is to the effect that on the following day,
December 10th (six days before FSL mailed the Count 4 refer-
enced letter), Herman decided not to make the loan to Darden.
Appellant contends that, therefore, the letter could not be con-
APPENDIX A
Philip J. Goldberg 7
sidered as being in fartheranee of the scheme charged in Count
4. (See App. Brief p. 85-101).
We cannot agree. The referenced letter (Ex. SB) was obviously
intended to further the seheme end the mere fact that appellant
did not know that the hank had slre-dy decided to reject the loan
for other reasons docs not exeuse appellant.
The letter refereneed in Count 11, Exhibit 16C, was a letter
dated February 7, 1969, from one Friedman of National Bank of
North America to FSI, inquiring concerning certain FSL policies
presented to the bank on the previous day by one Kenslow as
further collateral for loans which the bank had already made to
Kenslow on January 7, 1969 and January 15, 1969 on the basis,
according to defendant, of Kenslow’s note rather than on the
basis of the FSL. policy collateral. Appellant contends that,
therefore, Exhibit 16C could not be considered as in execution
of the scheme alleged in Count 11; appellant makes a similar
contention as to the letter referenced in Count 14, Exhibit 16F,
a letter from Newman of FSL to National Bank of North
America, dated March 21, 1969, responding to the Exhibit 160
letter reference) in Count 11.
We dissgree. Obviously, the sending of Exhibit 16C w the
bank indicates that the bank was relying, to some extent at least.
on the further security of the policies. Appellant's response to
the bank (Fx. 14) was, therefore, in furtherance of appcllant’s
scheme.
RE ERRORS OF LAW
Defendant contends that the trial court erroneously refused to
dismiss the indictment upon the grounds that it had been re-
turned after only a one-hour grand jury hearing on other vari-
ously asserted charges of “perversion” by the government of the
grand jury proecedings. We are satisfied that this ruling of the
trial court did not constitute clear prejudicial error. See United
States v. Costco, 350 U.S. 359 (1956).
Defend int contends that the trial court erroneously refused to
order the government cither to refrain from using or to deliver
to defendant a copy of a so-called “jury book”—the United States
Attorney's notes concerning the voting record and any known
idiosyncracics of jurors on the pancl. We are satisfied that this
APPENDIX A
8 The United States of America vs.
refusal did not constitute prejudicial error even under the cir-
cumstances argued by defendant. See Hamer v. United States,
259 F.2d 274 (9th Cir. 1958).
Defendant further contends that the trial judge erroneously
refused to order government disclosure of certain notes taken by
Assistant United States Attorneys reflecting the substance of, but
not verbatim, discussions with government witness Newman.
These notes were taken in discussions with Newman after New-
man’s written statement of May 11, 1973 which was disclosed to
defendant. Apart from the question whether such notes were
exempt from the Jeucks Act (18 U.S.C. 5 3500) as “work prod-
uct,” they were not statements of the defendant within the mean-
ing of § Boe). We find no clear, prejudicial error.
Defendant rurther contends that the tricl cour: crred in per-
mitting cross-cxamination cf the defendant on matters which,
defendant asserts, were beyond the scope of direct examination.
Considered in the licht of the length ond tenor of defendant's
direct examination to the effect that his own conduct was free of
any intent to defraud and that he was unaware of any impropri-
ctics and that be was victimized by his reliance on oth ra. we
cannot say that the crossexamination which was allowed by the
trial court to refute defendant's testimuny, was unreasonable or
in exeess of the bounds of cross-cxamination. We find no clecr,
prejudicial evror.
Defendant further contends that the trial court erred in refus-
ing to allow one of defendant's attorneys (Smaltz) to testify
concerning an alleged government threat to indict a prospective
defense witness (Schwartz) if he testified.
The trial court hearing on this point, held outside the presence
af the jury, shows an offer of proof coneerning, not a government
threat aguinst Schwartz, but only a government statement to
defendant's counsel (Sinaltz) to the effect that, if defendant in-
tended to cull Schwartz, he (defendant's counsel) should inform
Schwartz of his Fifth Amendment rights beeause, if Schwartz
testified, there was u considerable possibility he might be indicted;
that defendant's counsel did so inform Schwartz; that, upon suz-
gestion of the court, Schwartz was then granted immunity and
did testify.
APPENDIX A
Philip J. Goldberg 9
An examination of the record on this point satisfies ‘the court
that there was no abuse of diserction on the part of the trial
court. We ml re clear, prejdicial error.
Defendant contends that the trial court crroncously refused to
allow one of the defendant's sttormers (Naarian) to testify con-
cerning claimed inconsistent statements of the government's wit-
nem (Skillman) to the effect that Skillman had stated to Nazarian
during u interview with Skillman at the Heliday Inn in Phoenix
just prior to the Goldberg trial. that ke (Skillman) had informed
an Assistant United States Attorney, that, if he (Skillman) was
to testify for the government, he wanted comfortable aceommoda-
tions and would not stay in a county jail—a statement whieh
Skillman had on cross-examination denied making.
Considering the circumstances shown by the record we are of
the opinion that the trial court's refusal to allow Nazarian, who
had participated as defendant's counsel, to testify to the elaimed
inconsistent statements of Skillman was not in abuse of diserction.
Skillman had been cross-examined by defendant's counsel on these
statements aileged!y wade to Nazarian, yet Nazarian continued
as co-counse! for two to three wecks thereafter without either
withdrawing or indicating to the government that he was a poten-
tial witness in the case. We find no clear, prejudicial error.
Defendant further contends that during the government“ ro-
buttal argument to the jury, government counsel made statements
of fact, referring to Stillman’s testimony above referred to but
not shown by any evidence, to the effect that witnesses brought
by the government from federal penitentiaries to testify, normally
stay at the clowst federally approved detention center, normally
a jail within a city, but that I'hocnix did not have such a feder-
ally approved detention center and the closest was at Florence—
60 miles away.
Defendant contends that this statement was, not only outside
the evidence, but also false. Defendant attaches to his brief a
copy of a contract between the Burcau of Prisons and Maricope
County providing for detention ef federal prisoners at the Mari-
copa County Jail. Defendant's counsel, conecding that no objec-
tion was made at trial to this claimed improper argument, ex-
plains that he did not know the true state of affairs until after
the trial.
APPENDIX A
10 The United States of America vs.
Appelice concedes that its remark concerning the non-existence
of a federally approve! jail near Phoenix was erroncously but
innocently made and, further, that its remark concerning safety
was made in a good faith attempt to indicate that prisoners who
are called to testify for the covernment are sometimes kept apart
from other prisoners in the interest of protecting the witness, not
from the defendant.in the case, but from other prisoners. Con-
sidering all the circumstances shown by the record, we are Stix
fied that the remarks of government counsel on these matters,
which was quite collateral to the main issu s, were not so out of
line as to deprive defendant of a fair trial. We find no clear,
prejudicial error.
Defendant contends that the trial court erroncously refused dur-
ing the cross-cxamination of government witness, Newman, to
make an order requiring the government to produce all its records
of conversations betwee. attorneys for Newman and attorneys
for the government relating to the making of a written plea bar-
gaining agreement with Newman that had been reduced to writing
and disclosed to counsel for appellant.
Defendant argues that, although the written agreement was to
the effect that Newman was to plead guilty to one count of the
indietment and although Newman admitted to that effect on the
stand, the government, after the Goldberg trial, actually per-
mitted Newman to plead to new misdemeanor charges and dis-
missed the felony indictment charges.
On this point we are satisfied that the government's decision,
made after the trial, to go somewhat further than the written
agreement provided, did not amount to a failure to fully disclose
a bargaining agreement with the witness Newman. Even if it did,
it would not have prejudiced defendant who had been timely in-
formed of the written bargaining agreement for recommended
probation and given full opportunity to cross-examine Newman
toncerning promises. Sec, United States v. Polizzi, 500 F.2d 806
(9th Cir. 1974). We find no clear, prejudicial error.
For the reasons above set forth the judgment of the District
Court is affirmed except that the judgment on Count 10 is
reversed.
PERNAU-WALSI PRINTING co., SAN FRANCISCO 12-26-7 4-400
APPENDIX A
~
—
2
UNITED STATES COURT OF APPEALS 47.
U
FOR THE NINTH CIRCUIT = 22
FEB - 5 1975 *
Docbc=
THE UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 74-1023
)
)
)
)
vs. ;
PHILIP J. GOLDBERG, ;
)
Defendant -Appellant.
Before: KOELSCH and KILKENNY, Circuit Judges,
and SWEIGERT,* District Judge.
ORDER DENYING PETITION FOR REINEARING
AND REJECTING SUGGESTION FOR REHEARING IN BANC
The members of the panel voted unanimously to
deny the petition for panel rehearing. Judge Koelsch
voted against a rehearing in banc, and Judges Kilkenny
and Sweigert recommended against such a rehearing.
The full court has been advised of the suggestion
for an in banc hearing, and no judge of the court has
requested a vote on the suggestion for rehearing in banc.
FT. R. App. P. 35(b).
The petition for rehearing is denied, and the
*
suggestion for a rehearing in banc is rejected.
5 5255
Le - zee Siga“
* The Honorable William T. Sweigert, United States District
Judge for the Northern District of California, sitting by
designation.
18 U.S.C. § 3500. Demands for production
of statements and reports of witnesses.
(a) In any criminal prosecution brought by the
United States, no statement or report in possession of the
United States which was made by a Government witness or pro-
spective Government witness (other than the defendant) shall
be the subject of subpena, discovery, or inspection until said
witness has testified on direct examination in the trial of
the case.
(b) After a witness called by the United States has
testified on direct examination, the court shall, on motion of
the defendant, order the United States to produce any statement
(as hereinafter defined) of the witness in the possession of
the United States which relates to the subject matter as to which
the witness has tesified. If the entire contents of any such
statement relate to the subject matter of the testimony of the
witness, the court shall order it to be delivered directly to
the defendant for his examination and use.
(c) If the United States claims that any statement
Ordered to be produced under this section contains matter which
does not relate to the subject matter of the testimony of the
witness, the court shall order the United States to deliver such
statement for the inspection of the court in camera. Upon such
delivery the court shall excise the portions of such statement
which do not relate to the subject matter of the testimony of
the witness. With such material excised, the court shall then
direct delivery of such statement to the defendant for his use.
If, pursuant to such procedure, any portion of such statement
is withheld from the defendant and the defendant objects to such
withholding, and the trial is continued to an adjudication of
the guilt of the defendant, the entire text of such statement
shall be preserved by the United States and, in the event the
defendant appeals, shall be made available to the appellate court
for the purpose of determining the correctness of the ruling
of the trial judge. Whenever any statement is delivered to
the defendant pursuant to this section, the court in its dis-
cretion, upon application of said defendant, may recess proceed-
ings in the trial for such time as it may determine to be reason-
ably required for the examination of such statement by said
defendant and his preparation for its use in the trial.
APPENDIX C
Wage 1 of 2)
(d) If the United States elects not to coaply with
an order of the court under subsection (b) or (c) hereof to
deliver to the defendant any such statement, oc such portion DEFENDANT'S PROPOSED INSTRUCTION:
thereof as the court may direct, the court shall strike from
the record the testimony of the witness, and the trial shall
proceed unless the court in its discretion shall determine 39
that the interests of justice require that a mistrial be Where a defendant has offered evidence of good general
declared. * —
reputation for truth and veracity, or honesty and Integrity, or
(e] The term “statement” as used in subsections (b), '
(e) and (d] of this section in relation to any witness called as a law-abiding citizen, the jury should consider such evidence
by the United States, means - along with all the other evidence in the cese.
(1) a written statement made by said witness 7 * e
and signed or otherwise adopted or approved by him;
Evidence of a defendant's reputation, inconsistent «it>
(2) a stenographic, mechanical, electrical,
: : ; those traits o h r y im ; ine
or other recording, or a transcription thereof, which f character ordinarily involved in the cornissio:
is a substantially verbatim recital of an oral statement of the er ine charged may give rise to a reasorable doubt, since
made by said witness and recorded contemporaneously
with the making of such oral statement; or the jury may think it improbable that a person of good character in
(3) a statement, however taken or recorded, respect to those traits would commit such a crine,
or a transcription thereof, if any, made by said witness
. The + - w never
to a grand jury. jury will always bear in mind that the law neve
imposes upon a defendant in a criminal case the burden or duty
o? calling any witness or producing any evidence.
Devitt 2 Blackmar, Vol. i, Section 11.30, modified.
+
C.T. 464
APPENDIX D
APPENDIX C
(Page 2 of 2)
PROPOSED INSTRUCTION:
26
„ You have heard evidence that either all, or substan-
tially all, of the single-prenium annuity policies which were
issued by Financial Security Life Insurance Co, were paid fer
by the execution of prenium notes. You have also heard expert
testimony to the effect that a premium note is valid considcera-
tion for the issuance of an annuity pursuant to the lawe of the
State of Arizona.
Therefore, you ere not to infer, either directly or
indirectly, that there was any irregularity or wrongéoing on the
part of 7. 3. L. or the defendant,. hr. Goléberg, in issuing these
single-prenium annuities in exchange for the execution of a
prenium note.
u. . vy Pficer, 426 7. 24 32, 39 (2nd Cir, 1970),
rehearing denied &37 F.2¢ 957 (2nd Cir. 1970).
Cf. Devitt & Blackrar, Vol. 1, Section 10.13.
C. 1. 451
INSTRUCTION AS GIVEN:
You have heard evidence that either all, or
substantially all, of the single premius annuity policies
which vere issued by Pinancial Security Life Insurance ~
Company were paid for by the execution of premium notes.
You have elso heard expert testimony to the effect that a
premiua note is valid consideration for the issuance of an
annuity pursuant to the laws of the Stato of Arizona.
Therefore, you are not to infer, either
directly or indirectly, that, standing alone, there was
any irregularity or wrongdoing on the part of PSL or the
defendant on trial in issuing these single premium annui-
ties in exchange for the execution of a premium note.
However, you may consider this matter along with cll othor
evidence in the case.
R.T. O 334-335
APPENDIX E-
PROPOSED INSTRUCTION:
27
There has been undisputed testimony in this case
regarding the fact that Financial Security Life Insurance issued
certain single-preniunm annuity policies which bore issuance cates
which were not necessarily the dates that said policies were
delivered to the respective annuitants. You have also heard
testimony from severdl witnesses that this is a custom and
practice in the insurance industry.
Therefore, you are instructed not to consider the fore-
dating or backdating of these single-preniun annuity policies as
any evidence of wrongdoing on the part of the defendant, br.
Goldberg. ,
U.S. v. Pfizer, 426 v. 20 32, 39 (2nd Cir. 1970),
rehearing denied 437 F.2d 957 (2nd Cir. 1970).
Cf. Devitt & Blacknar, Jol. 1, Section 10.13.
C. 1. 452
INSTRUCTION AS GIVEN:
There has been undisputed testimony in this
case regarding the fact that Financial Security Life
Insurance issued cortain single premium annuity policios
which Lore issuance dates which vere not necessarily the
Gates that said policies were delivered to tho respective
annuitants. You have also heard testimony from several
witnosses that this is not unusual in ths insurance
industry.
Therefore, you are instructed not to
consider the foredating or backdating of theso single
premium annuity policies, standing alone, as any evidenco
of wrongdoing on tha part of the defendant. However, you
may consider these facts and this matter along with othor
evidence in the case.
R.T. O 335
és
APPENDIX E-2
PROPOSED INSTRUCTION: PROPOSED INSTRUCTION:
20 i 29
There has been testinony wat sone of the documents You will recall that there was some testimony regare in.
that tonstituted the annuity package were executed in dev York, whether ot not the reservation of benefits and proceeds ricers
new York and in San Prancisco, California, whereas the docunents which were used in connection with these single-prenium
indicate on their face that they were executed in Phoenix, annuities were ever submitted for approval to the Arizona Depart-
Arizona. ment of Insurance. You will also recall that itr. Humphrey,
These facts do not in and of theaselves constitute who is the Director df Insurance for the State of Arizona, recite:
any part of the charges in this case, and therefore, are not to from the Arizona Revised Statutes, specifically Section 20-1110,
be considered by you, either directly or indirectly, during which exenpts the reservation of benefits form used in connection
your deliberations.
vu, 8. v. Pfizer, &26 7. 2d 32, 39 (2nd Cir. 1970),
rehearing denied 437 7. 24 957 (2nd Cir. 1970).
with these annuities from any approval requirement.
Therefore, even if you were to conclude from the evi-
dence presented that said reservation of benefits and proceeds
Cf. Devitt & Blackmar, Vol. 1, Section 10.13.
rider vas not submitted to the Department of Insurance for
c.T. 453 approval, you are not to consider that fact, either directly
or indirectly, as any evidence of wrongdoing, in connection with
your deliberation.
INSTRUCTION AS GIVEN: '
U, S. v. Pfizer, &26 7. 2d 32, 39 (2nd Cir. 1970),
There has been testimony that some of ths rehearing denied 437 7.24 957 (end Cir. 1970).
documents that constituted the annuity package were Cf. Devitt 1 Blacamar, Vol. 1, Section 10.13.
executed in New York, New York and in San Prancisco, C.T. 454
California, vhereas the documents indicate on their face INSTRUCTION AS GIVEN:
that they were executed in Phoenix, Arizona. Again, thsse You will recall, also, that thero vas *
facts, standing alone, do not in and of thonselvos testinony regarding whother or not the rasnrvation of
constitute wrongdoing under the indictment. fowever, you benefits and proceeds riders which were iseusd in connec-
may consider chose facts also along with all the other tion with these single premium annuities wore ever
evidence in the case. submitted for approval to the Arizona Department of
R.T. O 335-336 Insurance. You will also recall that dr. Tumphrey, who
is the Director of Insurance for the State of Arizona,
recited from the Arizona Fovised Statutcs specifically
Section 20-1110, which exempts the reservation of bonofits
form used in connection with these annuities from any
approval requirenent, 4 requested by the policyholder.
{continued on next page]
APPENDIX E-3
ec S -4
81 428
APPENDIX E-4
{Page 1 of 2)
PROPOSED INSTRUCTION:
INSTRUCTION AS GIVEN {cont'd}:
35
Therefore, if you vere to conclude from tho You must not infer, directly or indirectly, that
evidence presented that said reservation of benefits and there was any wrongdoing on the part of the defendant,
process rider was requested by the policyholdar, then tr. Goldberg, merely because the Insurance Commissioner suspende
ts
Pinancial Security Life Insurance C fro ° ; * 8 7
you are not to consider tho fact, stanéing alone, that it * c
October 16, 1968 to November 29, 1969.
was not submitted to the departrent for approval, as evi-
Devitt 1 Blackmar Vol. 1, Section 11.05.
Genco of wrongéoing, in connection with your doliboration,
U. 8. v. Rucker, 35 2. 2d 950 (8th Cir. 1971).
but you ray consider that fact again in the context of al} Cf. Devitt 4 Blacknar, Vol. 1, Section 10.13.
other evidences in the case. C.T. 460
Evon if you should conclude that the
reservation of benefits and procaods rider should have INSTRUCTION AS GIVEN:
* *
bean submitted fer approval, that fact, standing salons, 8 You must not infar, directly or indirectly,
would not constitute fraud but it may bo considered by that there was any wrongdoing on the part of the dofondant
you in context with all tho othar avidence in the caso. merely because of the fact, standing alons, *
R. T. 0 336-337 insurance commissioner suspended Pinancial Security Life
Insurance Company from doing businoss.
R.T. O 338-339
APPENDIX E-4
(Page 2 of 2)
BEST COPY AVAILABLE
APPENDIX E-5
. i
* 2
PROPOSED INSTRUCTION:
2 3
You must not infer, directly or indirectly, that 4
s any *rongdoing on the part of the defendant, kr. Goldberg, .
—— inancial
nerely because the Insurance Commissioner suspended 7 g 4 6
8, 1 9.
Security Life Insurance Co. from doing business on April 1 9 7a
* — onr-
Purther, you must not infer, directly or indirectly, any wr 8 IN THE UNITED STATES DISTRICT COURT
zr. Goldberg by virtue of the fact that >
doing on the part of kr. sere FOR THE D)STRICT OF ARIZONA
ity Life went into liquidation in January, b 10
Financial Security UNITED STATES OF AMERICA, )
Devitt & Blacknar, Vol. 1, Section 11.05. 1 ) No. CR-70-517-PHX. wee
1971) Plaintiff, )
g. S. v. Rucker, 435 F. 2d 950 (Sth Cir. 12 ) AGREEMENT
C.F. 421 vs. ) OF
13
) EDWIN S. NEWMAN
10 PHILIP J. GOLDBERG, )
)
INSTRUCTION AS GIVEN: a )
th you must not infer, directly or indirectly, any 1 Pursuant to negotiations conducted by Ronald 4.
Furthor,
gdoing on the part of the defendant on trial, 48 1 Lebowitz and Joseph Raymond Keilp, Assistant b. S. Attorneys,
wron a a *
h d in the indictment, by virtue of the 22 19 and Tom Galbraith, counsel for the de fendant, I, Edwin 8.
enargo
Life went into liquidation 20 Newman, do hereby agree:
alone, that Pinancial Security
21 1. To waive all Fifth Anendment rights that I may
in January 1270. 2
R. T. O0 339 have in the above-styled cause, and sive to the United States
23
* complete statenent under oath concerning those events which
x are the subject for prosecution in CR-70-517-Phx. pc.
— 26 2. In the event that co-defendant, Philip J.
27 Goldberg, elects to enter a plea of guilty to a felony as
28 charged in the indictment in CR-70-517-Phx. bc, Edwin s.
2 :
Newman will enter a plea to two separate violations of Title
» 8
26, U. S. c., 7203, and the government will recommend probation.
31
2 3. In the event that co-defendant, Philip J.
Goldberg proceeds to trial, resulting in a finding of guilty
—
1 oe. on
Q3
Appendix PF f
| BEST COPY AVAILABLE
1
4
APPENDIX E-6
— —
—
8898
f
17
by way of a jury verdict in CR-70-517-Phx. WPC, the followin -
events will occur.
(a) The government will sever Edwin $. Newman
and Edwin S. Newman will testify as a witness for the United
States, said testimony being in conformity with the statemen:
having been given to the United States Attorney under oath
before trial.
(b) Edwin 8. Newman shall, after conviction g:
co-defendant Philip J. Goldberg, and upon the exercise of
discretion to be held fo; all purposes by the office of the
United States Attorney, enter a plea to one count of the in-
dictment in CR-70-517-Phx. WPC, whereupon the United States
shal) recommend the disposition of probation as to Edwin
S. Newman and shall dismiss all remaining counts in CR-70-517-
4. Furthermore, I, Edwin S. Newman, do expressly
understand that in the event I 2241 to honor the terms of
this agreement upon the conclusion of a trial of Philip J. )
Goldberg which results in a conviction, that the United State:
Attorney shall use my pretrial statement under oath as well
as my testimony at the trial of Philip J. Goldberg against me
in a subsequent trial in CR-70-517-Phx. WPC.
I do hereby certify that I have read, understood,
and agree to follow the terms of this agreement.
* , 1
; |
28 ca. 50 66 . % & 1
EDWIN S. NEWMAN
Defendant
— ©,
9 % @ ©
3 8 8 * R B 8 2 8
{ *
95
*
| a
2 a **
enn.
Attorney for Edwin S. Newnan
WILLIAM C. SMITIHCROUAN
United States lf.
3
7 f+ .
MW! /
7
“4 25. — wih
MEE {YE INA LE a
RONALD A. EPC. itz
Assistant) U. 8 2
Je
ie id. 15 \
Ascistant U. S Attorney
“
*
—
ae.
nf „% ww
*
sees es!
STATE OF ARIZONA )
° >») ss
COUNTY OF MARICOPA )
EDWIN S. NEWMAN, Defendant, TOM GALBRAITI, At-
torney for Edwin 8. Newman, RONALD A. LEBOWITZ, Assistant
U. S. Attorney, and JOSEPH RAYMOND KEILP, Assistant U. S. i
Attorney, each being first duly sworn upon his oath deposes |
and says:
The signatures on the foregoing Agreement of
Edwin 8. Newman are true and valid.
DATED this 4 day of May, 1973. °
~* * ’ |
. 7 . !
* erer ere
EDWIN S. NEWMAN, Defendant :
8 3 |
4 Ps
— ‘ a ge = °
“TOM GALDRAITH —
Attorney for Edwin 8. Newman
WILLIAM S. SMITHERMAN
United States ape > |
. VY ~f
Lp it, Ue — 5
A KKK
RONALD A. LEBOWITZ }
Assistant U. S. Attorney,”
2
JOSEPH, RAYMOND MILF
Assistant U. 8. tor ney
~
Subscribed and sworn to before me this yo aay of May, 197-.
Alu Kun 2 2
Notary Pub) icf
Ky Commission Expires ha 11, 1974
-4- |
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.