# Petition — Braverman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0881%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 985 ## Text +. ona No. 75-244 | | ern HOD JC. In the Supreme Court of the United States Ocroser Term, 1975 CHARLES BRAVERMAN, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT THOMAS P. SULLIVAN JOAN B. GOTTSCHALL One IBM Plaza Chicago, Illinois 60611 (312) 222-9350 Counsel for Petitioner CHARLES BRAVERMAN JENNER & BLOCK Of Counsel ee UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 ee EE Ce INDEX eae PAGE i eisiniiiiestieg 1 ESTES AR SRR eae ea Ee 2 I i setrrectmniginnninginene 2 Statutory Provisions Involved .00.............-sccssscssseseesees 2 I OT a. sisseieinaisenspetinanncts 6 Reasons for Granting the Writ ~............222.....2--.-.----00-0-++ 10 Ds eeiciisetateeliiciglimenitianite 17 Appendix A (Opinion of Court of Appeals) ........ App. 1 Appendix B (Opinion of the District Court) .......... App. 14 Appendix C (The Charge Relating To Conspiracy em Aidimg Om ACEI nnn nn. a ceseccnncancncnnsescoeeeeees App. 19 CITATIONS Cases Brotherhood of Carpenters v. United States, 330 U.S. 395 (1947) .............. ; . benching — Blumenthal vy. United States, 332 U.S. 539 (1947) ... 16 Direct Sales Co. v. United States, 319 U.S. 703 (1943) 11, 14, 16 Ingram v. United States, 360 U.S. 672 (1959) ............ 11 Kotteakos vy. United States, 328 U.S. 750 (1946) ...... 15 United States v. Cades, 495 F.2d 1166 (3d Cir. 1974) 11, 13, 15 PAGE United States v. Feola, ...... US. ......, 95 S.Ct. 1255 PINT sci: desssdamnanabinibeceabpinaneniaiahescaiemnaiiaadniaiie 11 United States v. Greer, 467 F.2d 1064 (7th Cir. 1972), cert, denied, 410 U.S. 929 (19738) ..........-----.---0--+--0++ 12-13, 16 United States v. Tornabene, 222 F.2d 875 (3d Cir. IIS ossississicsncotiesicenestieacansmaaaatamatalaeaoa 11 Statutes es (at eee 6 BO TLR, CODE cnciinenseninetsccincsciinssninnciencsncieiatineaeniiatinaiaian 6 By e sa eee 6, 11 bh 2 6, 11 Bt | see 6,7 Iu the Supreme Court of the United States Ocroser ‘term, 1975 No. CHARLES BRAVERMAN, Petttioner, Vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Petitioner, Charles Braverman, respectfully prays that this Court issue a writ of certiorari to review the judg- ment and opinion of the United States Court of Appeals for the Seventh Circuit, entered in this proceeding on June 16, 1975. OPINION BELOW The opinion and order of the Court of Appeals, not yet reported, appears as Appendix A hereto. The unpublished memorandum opinion and order of the District Court for the Northern District of Illinois appears as Appendix B. JURISDICTION The judgment of the Court of Appeals for the Seventh Circuit was entered on June 16, 1975. A timely petition for rehearing en banc was denied on July 16, 1975, and this petition for certiorari was filed within 30 days of that date. This Court’s jurisdiction is invoked under 28 U.S.C. §1254 (1). QUESTIONS PRESENTED 1. Whether the ‘‘reasonably foreseeable’’ test, as ap- plied by the Court of Appeals for the Seventh Circuit as the measure of an individual’s liability in conspiracy, is consistent with prior decisions of this Court holding that to support a conspiracy charge, the defendant’s knowl- edge of the conspiracy must be clearly and unequivocally proven. 2. Whether the ‘‘reasonably foreseeable’’ test, as ap- plied in this case, impermissibly withdraws the vital fac- tual issue of knowledge of the conspiracy from the jury. STATUTORY PROVISIONS INVOLVED United States Code, Title 18: § 2. Principals (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 3 United States Code, Title 18: § 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any man- ner or for any purpose, and one or more of such per- sons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misde- meanor. United States Code, Title 18: § 656. Theft, embezzlement, or misapplication by bank officer or employee Whoever, being an officer, director, agent or em- ployee of, or connected in any capacity with any Fed- eral Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Re- serve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, pur- loins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $100, he shall 4 be fined not more than $1,000 or imprisoned not more than one year, or both. As used in this section, the term ‘‘national bank’’ is synonymous with ‘‘national banking association’’; ‘‘member bank’? means and includes any national bank, state bank, or bank and trust company which has become a member of one of the Federal Reserve banks; and ‘‘insured bank’’ includes any bank, bank- ing association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation. United States Code, Title 18: $ 1005. Bank entries, reports and transactions Whoever makes any false entry in any book, report, or statement of such bank with intent to injure or de- fraud such bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corpo- ration, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System— Shall be fined not more than $5,000 or imprisoned not more than five years, or both. As used in this section, the term ‘‘national bank’’ is synonymous with ‘‘national banking association’’; ‘¢member benk’’ means and includes any national bank, state bank, or bank or trust company, which has be- come a member of one of the Federal Reserve banks; and ‘‘insured bank’’ includes any state bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal ‘Deposit Insurance Corporation. 5 United States Code, Title 18: § 1014. Loan and credit applications generally; re- newals and discounts; crop insurance Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of the Reconstruction Finance Corporation, Farm Credit Administration, Federal Crop Insur- ance Corporation, Farmers’ Home Corporation, the Secretary of Agriculture acting through the Farmers’ Home Administration, any Federal intermediate credit bank, or any division, officer, or employee thereof, or of any corporation organized under sections 1131 to 1134m of Title 12, or of any regional agricultural credit corporation established pursuant to law, or of the National Agricultural Credit Corporation, a Fed- eral Home Loan Bank, the Federal Home Loan Bank Board, the Home Owners’ Loan Corporation, a Fed- eral Savings and Loan Association, a Federal land bank, a joint-stock land bank, a Federal land bank association, a Federal Reserve bank, a small business investment company, a Federal credit union, an in- sured State-chartered credit union, any institution the accounts of which are insured by the Federal Sav- ings and Loan Insurance Corporation, any bank the deposits of which are insured by the Federal Deposit Insurance Corporation, any member of the Federal Home Loan Bank System, the Federal Deposit Insur- ance Corporation, the Federal Savings and Loan In- surance Corporation, or the Administrator of the Na- tional Credit Union Administration, upon any appli- cation, advance, discount, purchase, purchase agree- ment, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by re- newal, deferment of action or otherwise, or the ac- ceptance, release, or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years or both. STATEMENT OF THE CASE Petitioner Charles Braverman, together with Stanley Johnson, the president of the Steel City National Bank of Chicago, Charles Helm, the bank’s vice president and Robert Ness, was indicted in a six count indictment charg- ing violations of 18 U.S.C. §§ 2, 371, 656, 1005 and 1014. Neither petitioner nor Ness was affiliated with the bank. As to petitioner, the indictment charged as follows: (a) Count 1 charged that petitioner conspired with Johnson, Helm and Ness to commit three federal of- fenses: the willful misapplication of bank funds (18 U.S.C. § 656), the making of false entries in the books and records of the bank (18 U.S.C. § 1005) and the submission of false statements to the bank to influence its actions (18 U.S.C. § 1014). (b) Count 2 charged that in connection with a $30,000 loan in April, 1971, petitioner aided and abetted Johnson in the willful misapplication of bank funds (18 U.S.C. $656), thus violating 18 U.S.C. § 2; (ec) Count 3 charged that in connection with a $20,000 loan in December, 1971, petitioner aided and abetted John- son in the violation of 18 U.S.C. § 656, thus violating 18 U.S.C. § 2; (d) Count 4 charged that in connection with the April, 1971 loan referred to in Count 2, petitioner aided and abetted Johnson in making false entries in the bank’s In- terview and Memorandum Sheet with regard to the purpose of the loan (18 U.S.C. $1005), in violation of 18 U.S.C. § 2; (e) Count 5 charged that in connection with the De- cember, 1971 loan referred to in Count 3, petitioner aided and abetted Johnson in the violation of 18 U.S.C. §1005, thus violating 18 U.S.C. § 2; A 7 (f) Count 6 charged that petitioner, aided and abetted by Ness, made false statements in a personal statement submitted to the bank in order to obtain two loans, in violation of 18 U.S.C. § 1014. Ness, Johnson and Helm, at the time the loan transac- tions forming the basis for the indictment took place, were involved in a massive loan-kiting and embezzlement scheme which eventuated in 29 indictments, each charging, in es- sence, that Ness, with the assistance of some other in- dividual who had agreed to help him obtain a loan, sub- mitted false documents to the bank and, with the complicity of Johnson and Helm, obtained the loan. Ness, Johnson and Helm pleaded guilty to other indict- ments and petitioner’s indictment was dismissed as to them. Petitioner was tried alone. Ness was the govern- ment’s chief witness. Neither Johnson nor Helm testified. Ness testified that petitioner, a friend of his, at Ness’ urging, agreed to take out a loan on Ness’ behalf pursuant to Ness’ representation that he was in financial difficulty. Ness testified that petitioner had been reluctant to obligate himself for Ness, fearing that his wife would be angry, but agreed to assist Ness when Ness suggested that petitioner use an assumed name and a borrowed address, thus pre- venting his wife from learning of the loan. Ness completed a financial statement, signed by petitioner in blank using the name ‘‘ Weis,’’ and obtained a loan. Ness testified that petitioner received none of the loan proceeds for his per- sonal use, never went to the bank and never met nor spoke to the bank officers. (Tr. 102-114, 224-230, 252-253, 985-286, 292.)* Approximately six months later, Ness *“Tr.” refers to the page of the transcript. “App.” refers to the printed appendix to this brief. asked petitioner if he would take out an additional loan. When he refused, Ness obtained the additional loan with a note petitioner had previously signed for renewal pur- poses, (Tr. 158, 160, 317-318.) * As proof of the bank officers’ complicity, a necessary element of the aiding and abetting and conspiracy charges, Ness testified to conversations he had with Johnson relat- ing to their ongoing relationship and to Ness’ need for Johnson’s approval of the ‘‘ Weis’’ loan in order to meet payments due on other Ness loans Johnson had approved ; Ness further testified concerning conversations he had with Johnson relating to the fabrication of information for bank records. He testified that he did not tell peti- tioner of these conversations and that it was his belief that petitioner would not have assisted him had petitioner been aware of the illegal dimensions of Ness’ activities. Fur- ther, Ness stated that when the FBI began its investiga- tion of Ness’ transactions at the bank, Ness called peti- tioner, told him that there was an investigation of various loans in which Ness was involved at the Steel City Bank in progress and that the less petitioner knew about Ness’ involvement at the bank, the better off he would be. (Tr. 102, 122-132, 141-143, 237-238, 274-278, 284, 174, 335-336.) The trial judge reserved ruling on petitioner’s motions for judgment of acquittal made at the close of the govern- ment’s case and at the close of all the evidence. The jury was instructed, as to the accessory counts, that to be guilty, petitioner must have knowledge of the bank officers’ commission of the relevant offenses. The jury was instruct- ed, as to the conspiracy count, that they could find petition- * This paragraph is not intended to summarize all the evidence but simply the testimony relating to the obtaining of the two loans. er guilty if they found that he entered into a conspiracy to commit any one of the three objects of the conspiracy charged.* Petitioner was found guilty on all six counts. After verdict, the trial judge granted the motion for judgment of acquittal as to the four accessory counts, find- ing that it was not necessary to petitioner’s agreement with Ness to obtain a loan that a bank officer would be criminal- ly involved, and that there was not sufficient evidence from which the jury could conclude beyond a reasonable doubt that petitioner had specific intent to aid in, or specific knowledge of, the crimes with which the bank officers were charged. The trial judge upheld the jury’s verdict as to the conspiracy count, apparently reasoning that since there was prima facie proof that petitioner agreed to obtain a loan under fraudulent circumstances, and the loan was, in fact, obtained by means of a bank officer’s complicity, the conspiracy was adequately proven. (App. B, pp. 16-18.) Petitioner appealed from the jury verdict on the con- spiracy count and the substantive §1014 count, and the Court of Appeals affirmed. In so doing, the Court made a finding that ‘‘Braverman could reasonably foresee the necessity of the criminal involvement of bank officials.’’ (App. A, p. 8.) It is the propriety of the Seventh Cir- euit’s use of that standard which petitioner respectfully asks this Court,to review. * The trial court’s charge on conspiracy and aiding and abetting is appended as Appendix C hereto. The “one object” portion of the charge is at App. C, p. 19.) 10 REASONS FOR GRANTING THE WRIT This case involves a critically important, constantly re- curring issue of federal conspiracy law which has never been expressly decided by this Court: the standard of proof to be applied in determining the scope of a par- ticular defendant’s conspiratorial agreement when a sub- stantial question exists as to his knowledge of some of the crimina! dimensions of the conspiracy alleged. The ques- tion has arisen in the trial of a single defendant and dem- onstrates clearly that the confusion experienced in the trial of conspiracy cases is due as much to ambiguous lan- guage and vague standards in the law as it is to the prob- lems created by multiple defendants. Petitioner submits that this confusion of standards has led the trial court and the Court of Appeals, both apply- ing different tests of liability, to affirm his conviction of membership in a conspiracy vastly different in nature from anything of which he was shown to be aware. He further respectfully submits that this Court’s clarification of the standards governing this difficult area of the law is desperately needed to protect the rights of those accused of conspiracy and to set forth, for all those involved in the trial of conspiracy cases, fair, ascertainable standards of guilt. 1. The Decision Below, Holding That A “Reasonably Foreseeable” Test Can Be Applied to This Case As the Measure of Petitioner’s Liability in Conspiracy Conflicts with Prior Decisions of This Court Holding That There Must Be Clear, Unequivocal Proof of Knowledge of the Conspiracy Alleged To Support A Finding of Guilt of That Charge. Petitioner was charged with membership in a conspiracy which had as its alleged objects the violation of three fed- eg eee ee ong 11 eral criminal statutes. Two of the alleged objects, the will- ful misapplication of bank funds (18 U.S.C. § 656) and the knowing making of false entries in the books of the bank (18 U.S.C. § 1005) can be committed only by a bank officer or employee, although an individual who is not affiliated with a bank may be held liable as an aider and abettor or as a conspirator in their commission. United States v. Tornabene, 222 F.2d 875, 877 (3d Cir. 1955); United States v. Cades, 495 F.2d 1166, 1170 (3d Cir. 1974). To prove that an individual not affiliated with the bank is guilty as an aider and abettor, the government must prove that a bank officer committed the substantive of- fense and that the defendant knew of his fraudulent in- tent and joined with him. United States v. Cades, 495 F.2d 1166, 1168, 1170 (3d Cir. 1974). The third object of the conspiracy with which petitioner was charged was submit- ting false statements to a bank in order to influence its action; petitioner does not here dispute that the govern- ment established prima facie that he agreed with Ness to submit false statements to the bank in order to permit Ness to obtain the proceeds of a loan. The decisions of this Court make clear that ‘‘ ‘{C]on- spiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent neces- sary for the substantive offense itself.’’’ Ingram v. Unit- ed States, 360 U.S. 672, 678 (1959). See United States v. Feola, ...... US. ......, 95 S.Ct. 1255, 1265 (1975). To sup- port a finding of intent, the Court has insisted that there be evidence of knowledge, and that that evidence of knowl- edge be ‘‘clear, not equivocal.’’ Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943). The Court has also said that in the case of inherently broad schemes in which many individuals are involved, a conviction may be had ‘‘of 12 those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others.’’ Blumenthal v. United States, 332 U.S. 539, 556-557 (1947). The Court of Appeals, in adopting a reasonable foresee- ability standard, attributed the test to Umited States v. Greer, 467 F.2d 1064 (7th Cir. 1972), cert. denied, 410 U.S. 929 (1973), a case in which a defendant was held li- able for a three-object conspiracy to (1) steal from an interstate shipment of copper; (2) transport the copper in interstate commerce and (3) conceal the stolen cargo, on the basis of evidence that he had called friends in Chi- cago, alerted them to the location of a disabled trailer containing copper on an Indiana highway and had twice later called them to ask about his share of the proceeds. Against his contention on appeal that he had been shown to have conspired only to steal the load, the Court held he was liable for the whole conspiracy. The Court spoke in objective terms, extending his liability to all objects of the conspiracy alleged that were ‘‘indispensable’’ to the success of that part of the venture with which he was immediately concerned. (467 F.2d at 1071.) In applying the Greer test to the case at bar, the Court of Appeals significantly altered its meaning. In Greer, it was virtually beyond controversy—and the court so found— that the transportation and concealment of the cop- per were indispensable aspects of its successful theft. The Court did not have to look to the facts of record to know that disposition of the goods follows a theft. It was that knowledge that the Court assumed Greer had; to the extent the Court spoke of inferring consent and assuming knowl- 13 edge it was in reality making the only inference that was rationally possible, given the nature of the offenses. This Court in Blumenthal made a similar inference. (332 U.S. at 550.) The Seventh Circuit in the instant case, however, applied Greer’s language to a situation in which the crime it found to be foreseeable, Johnson’s willful misapplication of bank funds, was in no sense a necessary concomitant of the submission of false loan documents. The trial court in the case at bar so found in acquitting petitioner of the accessory counts (App. B, p. 16): ‘*Unquestionably a loan could be fraudulently ob- tained by Ness without complicity on the part of a bank officer or employee: because a fraudulent loan was obtained, it does not necessarily follow that a bank officer wilfully misapplied funds or unlawfully made false entries in bank records. The Third Circuit in a recent decision reversed a defen- dant’s convictions of aiding and abetting a bank officer and conspiring with him to misapply funds, finding that despite the bank officer’s fraudulent intent and the customer’s fraudulent activities which facilitated the bank officer’s misapplications, there was no evidence to show that the customer knew of the bank officer’s criminal intent. United States v. Cades, 495 F.2d 1166, 1168-1169 (3d Cir. 1974). The objects of this alleged conspiracy are separate and distinct. The agreement charged depends for its definition and essential scope on its inner-bank dimension. The application of a reasonable foreseeability standard to an object so critical to the nature of the agreement directly conflicts with the holdings of this Court that knowledge of a conspiracy and intent to join it must be proven, and that the proof must be clear, not equivocal. Only by a conscien- 14 tious insistence on proof of knowledge can liability in con- spiracy be controlled. Without strict scrutiny of whether knowledge has truly been proven, conspiracy will indeed, as it has here, become ‘‘a dragnet to draw in all substantive crimes.’’ Direct Sales Co. v. United States, swpra at 711.° 2. The “Reasonably Foreseeable” Test, As Applied In This Case by The Court of Appeals for The Seventh Circuit As The Measure of An Individual’s Liability for Conspiracy, Sanctions The Withdrawal of The Vital Factual Issue of Knowledge from The Jury. The District Court instructed the jury that they could find petitioner guilty of the single conspiracy alleged if they found that he was knowingly and willfully a member of a conspiracy to commit any one of the three offenses charged as its objectives. The jury was further instructed that if they found that a conspiracy existed and that the defendant was one of its members, the conspirator attribu- tion rules applied to any acts and declarations of other members of the conspiracy done in furtherance of its objec- tives. (App. C, pp. 19, 21.) These instructions literally mean * In its discussion of the evidence, the Court of Appeals made two misstatements. First, there is no evidence of record that petitioner knew that Ness was insolvent; he was asked what his financial con- dition was at the time, not whether Braverman was aware of it. (Tr. | 102.) (The government’s theory of Braverman’s motive was that Ness appeared to him to be an active, successful commodities trader and Braverman desired to win his favor and his business.) It is also not correct that petitioner knew the loan would be granted prior to the submission of the financial statement petitioner signed. While the loan proceeds were in fact disbursed to Ness prior to the time Ness submitted the statement, petitioner signed it prior to the time the loan was granted, after Ness told him he wanted it to obtain the loan. (Tr. 126-129.) 15 that guilt of the three-object conspiracy alleged can be predicated on a finding that petitioner and Ness conspired to submit false statements to influence the bank. The ‘‘in furtherance’’ limitation to the co-conspirator hearsay rule here extends by its own terms to all the objectives of the al- leged conspiracy. No instruction directing the jury’s at- tention to the scope of any conspiracy they found petitioner to have joined was given. This Court need not look to the evidence to see that peti- tioner’s knowledge of the bank officers’ criminal complicity was very much at issue in this case; the trial court’s de- cision to set aside the jury’s verdict on the accessory counts for lack of an adequate showing of knowledge and intent makes that apparent. Further, there is nothing in the nature of a plan to submit false statements to a bank which suggests bank official involvement. See United States vy. Cades, 495 F.2d 1166, 1170 (3d Cir. 1974). On the record, Ness’ uncontradicted testimony of the absence of contact between petitioner and the bank officials, and Ness’ failure to testify to any statements he made to petitioner indicating criminal conduct by anyone at the bank at the very least raises a jury question as to petitioner’s knowl- edge of bank official complicity. Before the decision in the instant case, it had been the rule in the Seventh Circuit that whenever there was a pos- sibility of a variance between an alleged multi-object con- spiracy and the proven scope of an individual defendant’s agreement, the scope issue had to be submitted to the jury. United States v. Varelli, 407 F.2d 735, 746 (7th Cir. 1969). See also Kotteakos v. United States, 328 U.S. 750, 769-770 (1946). In its opinion below, the Court of Appeals limited this rule, holding that it did not apply to this case because the possibility of a variance was not a ‘‘reasonable pos- sibility.’’ (App. A, p. 9 and n.4.) 16 The Seventh Circuit’s failure to recognize the difference between the transactionally-related objectives of the con- spiracy alleged in United States v. Greer* and the distinct crimes charged as conspiratorial objectives here caused it to fail to require for conviction proof that petitioner had actual knowledge of an inside bank conspiracy. Failing to recognize the importance of that knowledge or its lack in determining the nature of any agreement petitioner made, the Court found it unnecessary to alert the jury to the issue of the scope of petitioner’s agreement if they found one, and to instruct them on how to apply the co-conspira- tor attribution rules if petitioner’s agreement did not en- compass bank officers’ crimes. Petitioner’s knowledge of the alleged conspiracy was very much at issue in this trial. It was an issue of fact and susceptible of proof, if proof existed. The trial court’s failure to instruct the jury either that they must find that petitioner entered into an agreement encompassing all three alleged objects or that they must determine the scope of any conspiracy they find he joined vitiated his right to trial by a jury adequately instructed as to all the issues. See Brotherhood of Carpenters v. United States, 330 U.S. 395, 410-411 (1947.) The Court of Appeals’ holding that its finding of foreseeability so conclusively foreclosed the issue of actual knowledge as to leave not even a jury question makes clear that the Seventh Circuit, in disregard of the warnings of Direct Sales, supra, has dispensed with the elements of actual knowledge and intent in multi-object conspiracy trials. * See the discussion at pp. 12-13, supra. 17 CONCLUSION For the reasons stated above, a writ of certiorari should issue to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit. Respectfully submitted, Tuomas P. SuLLivan Joan B. GorrscHaLL One IBM Plaza Chicago, Illinois 60611 (312) 222-9350 Counsel for Petitioner Charles Braverman JENNER & BLocK Of Counsel APPENDIX APPENDIX A OPINION BY JUDGE PELL. In the Gnited States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 June 16, 1975 Before Hon. Watter J. Cummines, Circuit Judge Hon. Wrisur F. Pe, Jr., Circuit Judge Hon. Wiuu1am J. Campse.L, Senior Circuit Judge* No. 74-1467 UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. CHARLES BRAVERMAN, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. * Senior District Judge William J. Campbell of the Northern District of Illinois sitting by designation. App. 2 This cause came on to be heard on the transcript of the rec 7d from the United States District Court for the Northern District of Illinois, Eastern Division, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court that the judgment of the said District Court in this cause appealed from be, and the same is hereby, AF- FIRMED, in accordance with the opinion of this court filed this date. App. 3 Sa the United States Court of Appeals For the Seventh Ctrrutt No. 74-1467 UNITED STATES OF AMERICA, Plaintiff-A ppellee, vs. CHARLES BRAVERMAN, Defendant-A ppellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 766 Richard W. McLaren, Judge. Argued November 7, 1974—Decided June 16, 1975 Before Cummincs and PeELu, Circwt Judges, and Camp- BELL, Senior District Judge.* Pei, Circuit Judge. The defendant-appellant Charles Braverman was charged in a six-count indictment with conspiracy and five substantive counts arising from the procurement of two fraudulent loans. After a jury found Braverman guilty on all six counts, the district court judge, who had reserved ruling on Braverman’s motion *Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation. App. 4 for judgment of acquittal, found that the Government had failed to prove four accessory counts (Counts 2 through 5) and granted Braverman’s motion on these counts. Braverman now appeals from his conviction on the remaining Counts 1 and 6, which charged, respec- tively, conspiracy and making false statements to a bank in order to obtain two loans, in violation of 18 U.S.C. § 1014. The major issues raised on appeal are: (1) wheth- er the evidence was sufficient to prove Braverman in- tended to defraud the bank; (?) whether the evidence was sufficient to prove Braverman’s involvement in the con- spiracy; (3) whether the district court erred in deferring its ruling on Braverman’s motion for judgment of ac- quittal; (4) whether the evidence was sufficient to show the materiality of the financial statement; and (5) whether the district judge erred in replaying the tape of the jury instructions and permitting the jury to take notes during this time. 1. Braverman contends with respect to both Counts 1 and 6, that the evidence was insufficient to prove that he intended to defraud the Steel City National Bank. The intent of the defendant, in a case such as this, may, of course, be inferred from the facts and circumstances in proof. United States v. Acree, 466 F.2d 1114, 1117 (10th Cir. 1972), cert. denied, 410 U.S. 913 (1973). View- ing the evidence here, as we must, in the light most favor- able to the Government, we find that the evidence was more than sufficient to support the jury’s verdict. Braverman, a broker on the Chicago Mercantile Ex- change, agreed to use a fictitious name, ‘‘Peter Weis,’’ to secure a $30,000 bank loan for his insolvent friend Robert Ness. After being assured by Ness that Ness could ‘‘han- » aj Tay + os 4 Wo. Nn, ea, App. 23 of federal law. This is said to be in violation of Title 18, United States Code, Section 2. This Section provides that ‘‘whoever aids, abets, counsels, commands, induces or procures the commission of a crime is punishable as a principal.’’ In order to aid or abet the commission of a crime, a person must associate himself with the criminal venture, participate in it and try to make it succeed. Count 2 of the indictment charges that on or about @ 8 e It is further alleged in this Count 2 that the defendant Charles Braverman, knowing the foregoing, did wilfully aid and abet such offense by Stanley Johnson. Count 3 of the indictment charges that on or about December —and that defendant Charles Braverman, knowing the foregoing, did wilfully aid and abet such offense by Stan- ley Johnson. Now Title 18, United States Code, Section 656, which Stanley Johnson is alleged to have violated, provides in part: ‘*Whoever, being an officer or employee of or con- nected in any capacity with any national bank or a bank; the deposits of which are insured by the F.D.L.C., wilfully misapplies any of the monies, funds, or credits of such bank, shall be guilty of an offense against the laws of the United States.’’ I have used the word ‘‘misapplication.’’ Let me define it. A misapplication means an obviously improper and unjustifiable use of the funds of a national bank done with intent to injure and defraud the bank and includes a pay- ment made for a fictitious purpose or a payment the true purpose cf which is concealed from the bank. App. 24 There can be a misapplication of the funds of a national bank even though the bank does not suffer an actual loss. The fact that the defendant made restitution to Steel City National Bank is not a defense to charges contained in the indictment, but it may be considered in determining whether or not the defendant had the requisite intent to defraud required under the statutes. Now three essential elements are required to be proved beyond a reasonable doubt in order to establish the offense of aiding and abetting with which Charles Braverman is charged in Counts 2 and 3 of the indictment: First, that there was a wilful misapplication of money or funds by Stanley Johnson in the manner charged in Counts 2 and 3 of the indictment. Second, that Charles Braverman, knowing the foregoing, did aid and abet Stanley Johnson to misapply those monies or funds. And, third, that Charles Braverman did such act or acts knowingly and wilfully. To move on to Count 4, Count 4 of the indictment charges: ® 6 e —and that defendant Charles Braverman, knowing the foregoing, did wilfully aid and abet such offense by Stan- ley Johnson. Count 5 of the indictment charges: On or about December 17 o e @ —and that defendant Charles Braverman, knowing the foregoing, did wilfully aid and abet such offense by Stan- ley Johnson. All right. Title 18, U. S. Code, Section 1005 which Stanley Johnson is alleged in these two counts to have violated provides in part: App. 25 ‘*Whoever makes any false entry in any book, re- port or statement in any national bank or a bank, the deposits of which are insured by the F.D.LC., with intent to injure or defraud such bank, shall be guilty of a violation of this section.’’ This is the crime with which Stanley Johnson is charged in Counts 4 and 5. I instruct you that as a matter of law, Government’s Exhibit 17 entitled ‘‘Interview and Memorandum Sheet’’ is a book, report or statement within the meaning of the statute. Again three essential elements are required to be proved beyond a reasonable doubt in order to establish the offense of aiding and abetting with which Charles Braverman is charged in each of Counts 4 and 5 of the indictment: First, that there was a false entry made by Stanley Johnson in a book, report or statement of a national bank. Second, the making of the entry by Johnson was done with intent to in- jure or defraud the bank. And third, that the defendant Braverman, knowing the foreging, did wilfully aid and abet such false entry to be made. I used the word ‘‘false’’ a number of times. Let me define that for you. A statement, including a statement, a claim or a document, is false if it was untrue when made and was then known to be untrue by the person making it or causing it to be made. I have used the phrase ‘‘intent to defraud.’’ Let me define that for you. The phrase ‘‘intent to defraud’’ used in the crime charged means that the act was done know- ingly, with the specific purpose to deceive, in order to cause finaucial loss to another or financial gain to one’s self or another. App. 26 In order to find Charles Braverman guilty of aiding and abetting the commission of the wilful misapplication of Steel City National Bank funds or the making of false entries in the books of the Steel City National Bank, you must first find beyond a reasonable doubt that Stanley Johnson committed those crimes. It is immaterial that Stanley Johnson is not on trial at the present time. If you are not convinced beyond a reasonable doubt of the guilt of Stanley Johnson, you must find Charles Braverman not guilty under Counts 2, 3, 4 and 5. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0881%3A1. Public record. Not legal advice.