Petition — Diez v. United States

a .

Supreme Court, U. S,

k itLED

OCT 20 1975

MICHAEL RODAK, JR., CLERK

IN THE | MUURARL RUUAR CL CLERK |

Supreme Court of the United States

OCTOBER TERM, 1975

No. 65-591 (

JOE RAYMOND DIEZ and

PETER A. PALORI,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RAYMOND E. LaPORTE

408 Madison Street

Tampa, Florida 33602 ~

(813) 229-1891

Attorney For JOE RAYMOND DIEZ

E. DAVID ROSEN

19 West Flagler Street

Miami, Florida 33130

(305) 377-3736

Attorney For PETER A. PALORI

FREE PRESS PUB CO inc TAMPA. FLORIDA

INDEX

Page

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CE, cc dens decvxehenevecsvseeeuae 2

STATUTORY PROVISIONS INVOLVED ............... 3

ES hig bas Os Walaa wa ee ee ee weeks 4

REASONS FOR GRANTING THE WRIT ................ 6

IE ck ost 3 4c hack She eueehad UY Ceveeue chee’ 7

cic aan si eck dekh Ne eES Kone 12

CRUE URGE NEED 0c cv vkx dene vedere sccess 0% 13

APPENDIX (Opinion Of The Court Of Appeals) ...App. A- 1

APPENDIX (Judgment Of The Court Of Appeals) ..App. A-17

APPENDIX (Order Denying Diez’s Petition For

EE, Orns sui awene oe Ms 4 App. A-18

APPENDIX (Order Denying Palori's Petition For

I Cie su oak bee ee coun App. A-19

APPENDIX (Extension Of Time To File Diez’s Petition

For Writ Of Certiorari) ................. App. A-20

il

CITATIONS

Page

California v. Green (1970),

339 U.S. 149, 90S. Ct. 1930, 26 L Ed 2d 489 ........... 12

Causey v. United States,

I a i oh ae 11

Douglas v. Alabama,

SN DT me Tne Sees Pee! Maer ern 12

Dutton v. Evans,

i ea 9,12

Forman v. United States,

ee eee cae eed os oe 8

Grunewald v. United States,

a caauperebeeswed 8

Krulewitch v. United States,

eee ad eeu eaten a

Lutwak v. United States,

ghana ceawexed a

Ottomano v. United States,

a 12

United States v. Clayton,

I oo oid te MBit & 12

United States v. Puco,

aL <I 8 a ke 12

CONSTITUTION AND STATUTES

United States Constitution, Amendnment Five.............. 3

United States Constitution, Amendment Six................ 3

Title 18 United States Code §371 .................0...0... 3

Title 18 United States Code §1001 ........................ 3

Title 28 United States Code §1254(1)...................... 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

JOE RAYMOND DIEZ and

PETER A. PALORI,

Petitioners,

vs. |

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOE RAYMOND DIEZ and PETER A. PALORI respect-

fully petition for a writ of certiorari to review the judgment of

the United States Court of appeals for the Fifth Circuit.

OPINION BELOW

The opinion of the Court of Appeals (A. 1) is reported at

515 F 2d 892. No opinion was rendered in the United States

District Court for the Middle District of Florida.

JUDISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit was entered on July 14, 1975. Timely Petitions for

2

Rehearing were denied, as to Joe Raymond Diez on August 27,

1975, and as to Peter A. Palori on September 26, 1975. This.

Court granted Diez an extension of time to file a Petition for

Writ of Certiorari to and including October 21, 1975.

The jurisdiction of this Court is invoked pursuant to the

provisions of Title 28, United States Code §1254 (1).

QUESTIONS PRESENTED

I.

WHETHER NON-TESTIFYING UNINDICTED CO-CONSPI-

RATORS’ STATEMENTS TO GOVERNMENT AGENTS ARE

ADMISSIBLE ON THE THEORY THAT THERE EXISTED AN

IMPLIED CONSPIRACY TO CONCEAL THE UNDERLYING

CRIMINAL ACT.

A. HAS FORMAN VS. UNITED STATES, 361 U.S. 416

(1960) CARVED AN EXCEPTION OUT OF THE

IMPLIED CONSPIRACY RULE FOR ADMISSIBIL-

ITY OF OUT-OF-COURT STATEMENTS SET

FORTH IN KRULEWITCH VS. UNITED STATES,

344 U.S. 440 (1949), LUTWAK VS. UNITED

STATES, 344 U.S. 604 (1953), AND GRUNEWALD

VS. UNITED STATES, 353 U.S. 391 (1957),

BECAUSE INCOME TAXES ARE INVOLVED?

B. WHETHER UNINDICTED CO-CONSPIRATORS'’

OUT-OF-COURT STATEMENTS TO INVESTIGA-

TORS RELATING TO THE PRIOR ACTIVITY OF

THE DEFENDANTS, AND RELIED UPON BY THE

PROSECUTION AS PROOF OF THE CHARGES,

IN REALITY A DENIAL OF CONFRONTATION

AND DUE PROCESS, OR MERELY AN ACCEPT-

ABLE EXCEPTION TO THE HEARSAY RULE.

li.

WHETHER NON-TESTIFYING UNINDICTED CO-CONSPI-

RATORS' STATEMENTS TO PRIVATE INDIVIDUALS ARE

ADMISSIBLE WHEN SUCH WOULD NOT FURTHER THE

3

OBJECT OF THE CONSPIRACY ALLEGED IN THE

INDICTMENT.

WHETHER A CONVICTION CAN BE OBTAINED UPON

THE THEORY OF GUILT BY ASSOCIATION.

IV.

WHETHER THE PETITIONER HAS BEEN DENIED HIS

SIXTH AMENDMENT RIGHT OF CONFRONTATION

WHERE MASSIVE AND EXTENSIVE HEARSAY EVIDENCE

WAS ADMITTED ALLEGEDLY UNDER EXCEPTIONS TO

THE HEARSAY RULE, WHERE THE EVIDENCE WAS

CRUCIAL TO THE PROSECUTION AND DEVASTATING

TO THE DEFENDANT, AND WHERE THE LIVE TESTI-

MONY WAS AVAILABLE TO THE PROSECUTION.

CONSTITUTIONAL PROVISIONS INVOLVED

+ United States Constitution, Amendment Five:

“No person shall be . . . deprived of life, liberty, or property,

without due process of law... .”

United States Constitution, Amendment Six:

“In all criminal prosecutions, the accused shall enjoy the right

. . to be confronted with the witnesses against him. . .”.

STATUTORY PROVISIONS INVOLVED

Title 18 United States Code §371:

“If two or more persons conspire . . . to defraud the United

States, or any agency thereof in any manner or for any purpose,

and one or more of such persons do any act to effect the object

of the conspiracy each shall be tined . . .”

Title 18 United States Code §1001

“Whoever, in any matter within the jurisdiction of any .. .

agency of the United States knowingly and willfully . . . makes

any false, fictitious or fraudulent statements . . . shall be fined

4

STATEMENT

A United States Grand Jury for the Middle District of

Florida returned a multi-count indictment, the first count‘ of

which charged the petitioners, Diez and Palori, their

accountant, B. J. DeGuzman,’ and Palori’s mother, Minnie D.

Lopez,’ as defendants, together with James H. Garrett and

Clarence E. Prevatt as unindicted co-conspirators, with the

crime of conspiring to “defraud the United States by impeding,

impairing, obstructing and defeating the lawful governmental

function of the Internal Revenue Service of the Treasury

Department of the United States in the ascertainment,

computation, assessment and collection of revenue, to-wit:

income tax” The indictment alleged, inter alia, that the

agreement was to be accomplished by deliberately misrepre-

senting to agents of the Internal Revenue Service the true nature

of the transactions which resulted in the false and fraudulent

income tax returns.

Overt Acts 34 and 35 of the indictment charged that DeGuzman

and petitioner Palori made false and misleading statements to

agents of the Internal Revenue Service for the purpose of

concealing underlying transactions.

The thrust of the government's case was that Palori was

engaged in real estate transactions and arranged for others to

act as nominal owners and report the transactions on their

respective income tax returns. Additionally, Diez reported

commissions on two of the transactions, a profit on one, and

$3,200.00 interest on a loan allegedly made to Palori. The

government's claim was that all of the transactions were in truth

1 There were four substantive counts charging the petitioner Palori with

tax evasion for the calendar years 1965 through 1968. Since the evidence

hereinafter referred to was applicable to the substantive counts, the

same issues prevail.

2 B. J. DeGuzman was convicted and did not appeal.

3 Minnie D. Lopez was acquitted by the jury.

5

Palori’s; that Diez did nothing to earn any commissions, and no

loan existed between Palori and Diez.

Testimony By Agents

In the course of the trial, an Internal Revenue Agent

testified that several years after the last involved income tax

return was filed he interviewed unindicted co-conspirator

Garrett and co-defendant DeGuzman.

The Agent said that Garrett told him that he was Palori’s

partner in the real estate transaction and that Diez neither

shared in any of Palori’s transactions nor performed any

services for which he would earn a commission.

The Agent also said that Garrett told him he did not own

an int’. st ina parcel of land in which the petitioner Palori had

claimed Garrett had a one-fourth interest.

Another Agent testified that DeGuzman gave to him a

worksheet which reflected that Diez had no interest in a

particular parcel of land although Diez had reported on his

income tax return a one-sixth interest in the parcel. There was

no testimony as to the source of the information or the manner

or purpose for which the document was prepared.

An Agent testified that co-defendant DeGuzman, who did

not take the stand in his defense, told him that another agent in

a prior audit intended to classify Palori as a real estate dealer |

and thereby deny Palori the tax benefits of long term capital

gains. This testimony later translated itself into a vigorous

closing argument by the prosecution as being the reason Palori

used nominees in the transactions, notwithstanding the fact that

every transaction involved in the case had been consummated

and made a matter of public record prior to the first agent's

determination.

6

Testimony By Private Individuals

An attorney testified that he withheld foreclosure

proceedings on a parcel of land titled in the name of Lopez

because Garrett told him that Palori was the true owner of the

property.

An accountant testified that in the preparation of

unindicted co-conspirator Prevatt’s 1968 income tax return, he

was told by Prevatt that $9,000.00 of the proceeds of a sale of

land was paid to Palori as his share of the transaction. Palori

did not report that amount on his income tax return.

Seven witnesses were asked on their direct examination if

they “knew” the Petitioner, Diez. Of the seven, only three

were testifying in any respect concerning parcels of land

allegedly involving Diez. No further questions were directed to

the witnesses relating to Diez, and no explanation was furnished

by the trial prosecutor for the use of this trial tactic, although

objections were raised that it amounted to attempted proof

of guilt by association.

The only non-hearsay evidence admitted against the

Petitioner, Diez, were his four tax returns for the years 1965

through 1968. All other evidence admitted against Diez in a trial

lasting two weeks was hearsay admitted allegedly under various

exceptions to the hearsay rule.

REASONS FOR GRANTING THE WRIT

A review of this case will set guidelines for the Trial Courts

to determine to what extent the prosecution may use

extrajudicial statements of unindicted co-conspirators given at a

time when the only evidence of a continuing conspiracy are the

statements themselves.

This Court should decide whether a separate and distinct

criminal act, which happens to further the central object of a

7

conspiracy, ostensibly committed after the conspiracy ended, is

binding on other co-conspirators without explicit evidence that

such subsequent criminal act was part of the original

agreement, or in the alternative later agreed to by the other

co-conspirators.

This Court should renounce the tactic of attempted proof

of guilt by association even though a conspiracy is charged in

the Indictment.

The Circuits are divided upon the issue whether evidence

admitted under hearsay exceptions automatically comply with

the requirement of the Sixth Amendment confrontation clause.

This case will permit this Court to resolve the conflict.

ARGUMENT

I.

WHETHER NON-TESTIFYING UNINDICTED CO-CONSPI-

RATORS’ STATEMENTS TO GOVERNMENT AGENTS ARE

ADMISSIBLE ON THE THEORY THAT THERE EXISTED AN

IMPLIED CONSPIRACY TO CONCEAL THE UNDERLYING

CRIMINAL ACT.

A. HAS FORMAN VS. UNITED STATES, 361 U.S. 416

(1960) CARVED AN EXCEPTION OUT OF THE

IMPLIED CONSPIRACY RULE FOR ADMISSIBIL-

ITY OF OUT-OF-COURT STATEMENTS SET

FORTH IN KRULEWITCH VS. UNITED STATES,

344 U.S. 440 (1949), LUTWAK VS. UNITED -

STATES, 344 U.S. 604 (1953), AND GRUNEWALD

VS. UNITED STATES, 353 U.S. 391 (1957),

BECAUSE INCOME TAXES ARE INVOLVED?

B. WHETHER UNINDICTED CO-CONSPIRATORS’

OUT-OF-COURT STATEMENTS TO INVESTIGA-

TORS RELATING TO THE PRIOR ACTIVITY OF

THE DEFENDANTS, AND RELIED UPON BY THE

PROSECUTION AS PROOF OF THE CHARGES,

ARE IN REALITY A DENIAL OF CONFRONTA-

TION AND DUE PROCESS, OR MERELY AN

8

ACCEPTABLE EXCEPTION TO THE HEARSAY

RULE.

The evidence herein was essentially circumstantial until

Internal Revenue Agents testified about their later meetings and

interviews with the named co-conspirators. The interviews

were received in evidence on the theory that the indictment

charged that it was a part of the conspiracy te ‘ake false

statements and misrepresentations to the Internal Revenue

Service.‘ If such statements were false, they constituted a

separate and distinct crime by the declarant. The government

conceded in the trial that there was no explicit evidence to

support the charge that there was an agreement among the

co-conspirators to lie to the Agents of the Internal Revenue

Service. The Court of Appeals relied upon Forman v. United

States, 361 U.S. 416 (1960), as a basis for affirming the

introduction of the co-conspirator out-of-court statements.

Forman, however, held that the passive concealment of holdout

income was of necessity a part of the original plan in order to

insure success. This type of concealment did not involve any

additional overt criminal act which would bind other

conspirators.

In Grunewald v. United States, 353 U.S. 391 (1957), this

Court indicated that if the theory of the prosecution

encompassed an extended conspiracy to conceal, then perhaps

crimes which furthered the conspiracy may be admissible. This

question was never fully answered in Grunewald. In the fair

administration of justice, however, should a theory outweigh

fact any more than form overcome substance?

Forman and Grunewald dealt with the viability of the

prosecution because of the applicable statute of limitations. We

submit, however, that the resort to a continuing conspiracy

4 It is paradoxical that the evidence referred to in the statement of the

case was received on the theory of falsity, but argued by the

government as representing the true facts.

5 For example, Title 18 United States Code §1001

9

theory, unsupported by any evidence, for the sole’purpose of

introducing extrajudicial statements of non-testifying co-con-

spirators violates the principles of Krulewitch vs. United States,

344 U.S. 440 (1949), and Lutwak vs. United States, 344 U.S. 604

(1953), and is a denial of the confrontation clause and due

process.

In that regard there has been a disagreement among the

members of the Court as to the interrelationship between the

confrontation clause and the hearsay exception. In Dutton vs.

Evans, 400 U.S. 74 (1970), Mr. Justice Harlan concurring in the

result and Messrs. Justices Marshall, Black, Douglas, and

Brennan dissenting, the Court was fragmented on this issue.

We submit, however, when a statement attributed to a

non-testifying co-conspirator, which is not against the penal

interest, not in furtherance of a conspiracy, not harmless error,

and the truth of which is not tested by cross-examination, it is in

reality a denial of the right of confrontation embodied in

Amendment Six and due process embodied in Amendment Five.

WHETHER NON-TESTIFYING UNINDICTED CO-CONSPI-

RATORS’ STATEMENTS TO PRIVATE INDIVIDUALS ARE

ADMISSIBLE WHEN SUCH WOULD NOT FURTHER THE

OBJECT OF THE CONSPIRACY ALLEGED IN THE

INDICTMENT.

The petitioners acknowledge the principle that statements _

made or acts done during the life of the conspiracy which

further the object of the conspiracy are binding upon all proven

conspirators.

6 We say for the sole purpose in as much as there was no evidence of any

action among the defendants or co-conspirators during the period of

time between the filing of the last return and the commencement of the

audit; even during the audit there was nothing to indicate collusion or

continuation of the alleged original agreement.

10

Too often, however, the courts lose sight of the second

prong of this proposition.

The petitioners concede that the witnesses testified

concerning events during the life of the alleged conspiracy, but

were these statements made for the purpose of furthering the

object of the conspiracy to defraud the United States?

We submit that the testimony of an attorney that he

discontinued forclosure proceedings because an unindicted

non-testifying co-conspirator told him that the petitioner Palori

was the true owner of certain property was a flagrant violation

of the rule.

We further submit that an accountant cannot under this

rule testify that he reduced the tax liability of an alleged

unindicted non-testifying co-conspirator because that person

told him that a defendant shared in the proceeds of that

particular transaction.

Not only are such statements not in furtherance of the

conspiracy, but would in fact defeat it.

When considered in the context of this case, these

statements may very well have persuaded the jury to convict.

Ill.

WHETHER A CONVICTION CAN BE OBTAINED UPON

THE THEORY OF GUILT BY ASSOCIATION.

The theory of the government's case against Diez was that

Petitioner Diez was allegedly involved in three of nine parcels of

land litigated in the trial.

In the direct examination of seven witnesses, the

prosecutor was allowed to ask each, over objection, if they

“knew” Joe Diez. Of the seven, only three were testifying in any

respect concerning the three parcels allegedly involving Diez.

11

The prosecutor failed to ask any questions relating to Diez of

any of the seven witnesses beyond the one question relating to

their acquaintanceship with Diez. Other testimony was elicited

concerning co-defendants. Although Diez objected to the

procedure in each instance, the trial prosecutor did not justify

the tactic or the questioning.

The procedure followed in the trial was a blatant and

obvious attempt to convict Diez (which was successful) upon

the illegitimate doctrine of “guilt by association”. That such is

improper, even in a conspiracy prosecution, needs no citation

of authority. See Causey v. United States, 352 F 2d 203 (5 Cir.,

1965). This Court should, once and for all, clearly renounce this

type of tactic, grant certiorari, and upon final hearing, reverse

the conviction and remand for a new trial free from the unfair

taint of guilt by association.

IV.

WHETHER THE PETITIONER HAS BEEN DENIED HIS

SIXTH AMENDMENT RIGHT OF CONFRONTATION

WHERE MASSIVE AND EXTENSIVE HEARSAY EVIDENCE

WAS ADMITTED ALLEGEDLY UNDER EXCEPTIONS TO

THE HEARSAY RULE, WHERE THE EVIDENCE WAS

CRUCIAL TO THE PROSECUTION AND DEVASTATING

TO THE DEFENDANT, AND WHERE THE LIVE TESTI-

MONY WAS AVAILABLE TO THE PROSECUTION.

The only non-hearsay evidence admitted against the

Petitioner Diez in this two week trial, were his four tax returns .

for the years 1965 through 1968. All other evidence admitted

against Diez which required almost two weeks of trial time, was

hearsay which was admitted allegedly under various exceptions

to the hearsay rule.

There can be no question but that the massive hearsay

evidence was “crucial” to the prosecution in securing a guilty

verdict. In like fashion the same extensive hearsay evidence was

certainly “devastating” to the Petitioner. Except for the hearsay

testimony of one witness, Garrett, no effort was made by the

12

prosecutor to establish that the live witnesses who could have

been called. were “unavailable”.

In California v. Green, 1970, 339 U.S. 149, 90S. Ct. 1930,

26 L Ed 2d 489, and Dutton v. Evans, supra, this Court

emphasized that the hearsay rule and the confrontation clause

are not congruent. Testimony introduced under a traditional

exception to the hearsay rule may still run afoul of the

constitutional provision requiring confrontation.

Considerations of elemental fairness and the accuracy of

the truth determining process demand that this Court prevent

the substitution of devastating, unreliable hearsay testimony

for live testimony, and an opportunity for cross-examination

by the accused, where the live testimony was as equally

available as the hearsay to the prosecutor.

The Circuits have ben divided upon the issue whether

evidence admitted in federal court under federal hearsay

exceptions automatically comply with the requirements of the

confrontation clause. Compare Ottomano v. United States, 1

Cir., 1972, 468 F 2d 269, 273 and United States v. Clayton, 1

Cir. 1971, 450 F 2d 16, 20 with United States v. Puco, 2 Cir.,

1973, 476 F 2d 1099.

This case will permit this Court to finally resolve this

conflict.

Petitioner is confident that this Court will finally and

clearly express itself that cross-examination is “the essential

right secured by the Confrontation Clause”. Douglas v.

Alabama, 380 U.S. 415 at 420.

CONCLUSION

Petitioners respectfully submit that a review of the record

will indicate that this Petition for Writ of Certiorari should be

granted and that the judgment of the Court of Appeals

13

affirming the judgment of the District Court should be set aside

and the judgment of conviction reversed.

Respectfully submitted,

Keb 8 hr

RAYMOND E. LaPORTE

408 Madisor Street

Tampa, Florida 33602

(813) 229-1891

Attorney for JOE RAYMOND DIEZ

E flared Kem

E. DAVID ROSEN

19 West Flagler Street

Miami, Florida 33130

(305) 377-3736

Attorney for PETER A. PALORI

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the foregoing

Petition for Writ of Certiorari, have been furnished, Air Mail,

Postage Prepaid, to the Solicitor General, Department of

Justice, Washington, D. C. 20530, on this , ) *” day of

a Ke I8 hee

Attorney

A-1l

UNITED STATES v. DIEZ

UNITED STATES of America,

Plaintiff-Appelliee,

v.

Joe Raymond DIEZ and Peter A.

Palori, Defendants-Appellants.

No. 74-2641.

United States Court of Appeals,

Fifth Circuit.

July 14, 1975.

The United States District Court for

the Middle District of Florida, at Tampa,

Ben Krentzman, J., found one of the de-

fendants guilty of income tax evasion

and found both defendants guilty of con-

spiring to defraud the United States by

impeding the Internal Revenue Service

in the collection of income taxes, and

they appealed. The Court of Appeals,

Ainsworth, Circuit Judge, held that (1)

the hearsay statements made by a cocon-

spirator in 1972 were part of the central

conspiracy itself, which involved a series

of real estate transactions between 1965

and 1968 but which had not terminated

when the statements were made, and

they were thus admissible under the co-

conspirator exception to the hearsay

rule, (2) the work papers of defendant's

accountant, an alleged coconspirator,

were admissible, (3) the refusal of the

defendant’s motion for a trial separate

from his accountant was not an abuse of

discretion, where, inter alia, defendant’s

proffer in support of his motion was be-

reft of exculpatory content and where

the motion was made late in the trial,

and (4) the iliustrative charts used by

the governmeni, while undeniably mak-

ing assu.nptions concerning the proper

attribut.on of income from the real es-

Syvnopes Syiah anc

COPY RIGH

The Synopees, jy!ist

CALION constitule he

i the opinmeon

tate transactions, had ample evidentiary

support.

Affirmed.

1. Criminal Law @>423(1)

Acts and declarations of coconspira-

tors are binding upon each member of

the conspiracy if made during the life of

the conspiracy and in furtherance of any

of its objects.

2. Criminal Law @=419(1)

Where IRS agent’s statement, re-

ported to second agent by coconspirator,

of bis intention to classify defendant as

a dealer in real estate was received not

to prove that defendant was or had been

classified as a dealer, but rather to prove

that the first agent intended to regard

him as one, the statement of the first

agent was a “statement of the declar-

ant’s then existing state of mind, emo-

tion, sensation, or physica! condition

(such as intent, plan, motive, design,

mental feeling, pain and bodily health)”

and fel! under the well-established ex-

ception to the hearsay rule for such

statements. Federal Rules of Evidence,

rules 803(3), 805.

3. Criminal Law e410

Since, when IRS agent first inter-

viewed defendant, defendant specifically

referred the agent to an accountant for

answers to any questions concerning tax-

es, the statement thereafter made by the

accountant constituted an “admission by

an authorized agent” and was admissible

against defendant irrespective of wheth-

er the coconspirator exception applied.

4. Criminal Law @=422(1)

in prosecution for conspiring to de-

fraud the United States by impeding the

Interna! Revenue Service in the coliec-

tion of income taxes, involving a series

of real estate transactions Letwecn 1965

and 1968, the hearsay stateinents made

hey Number Claasiticaten

y WEST PUBLISHING ©O

and Kev Number Cisaaf

INDEXED

of ine cour

A-2

6431 UNITED STATES v. DIEZ

by coconspirator in 1972 were part of the

central conspiracy itself, which had not

terminated when those statements were

made, and were thus admissible under

the coconspirator exception to the

hearsay rule.

5. Criminal Law =423(1)

A statement need not be false in

every detail in order to have been made

in furtherance of a conspiracy to conceal

and defraud.

6. Criminal Law @=423(1)

Although isolated parts of coconspir-

ators’ hearsay statements may have been

true, the record showed that, taken as a

whole, the statements were deceptive in

design and were therefore in furtherance

of the conspiracy, rendering them admis-

sible under the coconspirator exception

to the hearsay rule.

7. Criminal Law @423(3)

In prosecution for conspiring to de-

fraud the United States by impeding the

Internal Revenue Service in the collec-

tion of income taxes, the work papers of

defendant’s accountant, an alleged co-

conspirator, were admissible under the

coconspirator exception to the hearsay

rule, since the papers were prepared dur-

ing the course of the conspiracy and

were also in furtherance of the purpose

thereof, namely, the filing of false in-

come tax returns. 18 U.S.C.A. § 371; 26

U.S.C.A. (1.R.C.1954) § 7201.

8. Criminal Law @=>423(3)

Accountant for unindicted coconspir-

ator cou'd have testified to what his

client told him concerning the ownership

of subject land, since his client’s state-

ments to him were those of a coconspira-

tor during the course and in furtherance

of a conspiracy to defraud the United

States by impeding the Internal Revenue

Crevice in the collection of income taxes.

18 U.S.C.A. § 371; 26 U.S.C.A. (LR.C.

1954) § 7201.

9. Criminal Law 2436

Availability of the declarant does

not bar introduction of a document un-

der the Business Records Act. 28 U/S.

C.A. § 1732.

10. Criminal Law @419(12)

In prosecution for conspiring to de-

fraud the United States by impeding the

Internal Revenue Service in the collec-

tion of income taxes, involving a series

of real estate transactions, a letter from

an attorney for the seller of a parcel

purchased and later resold by defendant,

which letter stated that defendant was

the actual mortgagor of the property

even though the property was held in

the name of defendant’s mother, was ad-

missible over a hearsay objection, even

though the attorney testified that an un-

indicted coconspirator had told him that

defendant was the mortgagor, since the

coconspirator’s statement was made long

before the conspiracy ended and was in

furtherance of the conspiracy. 18 U-S.

C.A. § 371.

11. Conspiracy @=48.1(2)

In prosecution brought against uncle

and nephew for conspiring to defraud

the United States by impeding the Inter-

nal Revenue Service in the collection of

income taxes, the role of the uncle in the

various real estate transactions in ques-

tion was amply established by the

government’s evidence, and his motion

for acquittal was thus properly denied.

18 U.S.C.A. § 371; 26 U.S.C.A. (LR.C.

1954) § 7201.

12. Conspiracy #40

Mere association with members of a

conspiracy is insufficient to establish a

person’s participation in the conspir-

BIST GO°Y 22°" ADE

A-3

UNITED STATES v. DIEZ 6432

13. Criminal Law @1159.2(5), 1159.6

Guilty verdict must be sustained if

there is substantial evidence, taking view

most favorable to the government, to

support it, and that standard is not

changed by fact that government's case

rested in substantial part on circumstan-

tial evidence.

14. Criminal Law @622(2)

In prosecution for income tax eva-

sion and for conspiring to defraud the

United States by impeding the Interna!

Revenue Service in the collection of in-

come taxes, the refusal of defendant's

motion for a trial separate from his ac-

countant was not an abuse of discretion,

where, inter alia, defendant's proffer in

support of his motion was bereft of ex-

culpatory content and where said motion

was made very late in the trial. 18 U.S.

C.A. § 371; 26 U.S.C.A. (I.R.C.1954)

§ 7201; Fed.Rules Crim.Proc. rule 14, 18

U.S.C.A.

15. Criminai Law @622(3)

For court to grant a severance mo-

tion based on the unavailability of a co-

defendant whose testimony is allegedly

needed, the movant must show a bona

fide desire to use the codefendant’s testi-

mony, that the testimony will be excul-

patory, that the codefendant will likely

testify if the severance is granted, and

that the motion is timely and will not

impair the economy of judicial resources.

16. Criminal Law @622(1)

Complexity of the trial, by itself, is

insufficient ground for overturning trial

court’s denial of a severance motion; in

fact, in complex trials the pressures

against severance are especially great

because of the drain on judicial resources

that would be created by separate trials.

17. Conspiracy #45

In joint trial of uncle and nephew

on charge of conspiring to defraud the

United States by impeding the Internal

Revenue Service in the collection of in-

come taxes, nephew's preconspiracy fi-

nancial statement which purported to list

nephew's outstanding obligations, yet

made no mention of a loan from uncle,

was admissible as evidence casting doubt

on whether nephew had made a $3,200

interest payment to uncle for a loan,

thus supporting government’s charge of

a conspiracy to conceal nephew’s income.

18. Criminal Law @1169.5(2)

In joint trial of uncle and nephew

on charge of conspiring to defraud the

United States by impeding the Internal

Revenue Service in collecting income

taxes, uncle could not have been preju-

diced by the introduction of nephew's

preconspiracy financial statement, which

purported to list nephew's outstanding

obligations yet made no mention of a

loan from uncle, since the jury was re-

peatedly instructed that statements of

any conspirator made before the exist-

ence of the conspiracy may only be con-

sidered as evidence against the person

making it.

19. Criminal Law @=437

In prosecution for conspiring to de-

fraud the United States by impeding the

Internal Revenue Service in collecting

income taxes, the illustrative charts used

by the government, while undeniably

making assumptions concerning the

proper attribution of income from the

real estate transactions involved, had

ample evidentiary support. 18 U.S.C.A.

§ 371; 26 U.S.C.A. (1.R.C.1954) § 7201.

20. Criminal Law @777

Where summaries are used in a

prosecution for income tax evasion, the

trial court should instruct the jury that

the summaries do not, of themselves,

constitute evidence in the case but only

A-4

6433 UNITED STATES v. DIEZ

purport to summarize the documents and

detail evidence already submitted. 26

US.C.A. (1.R.C.1954) § 7201.

21. Criminal Law +437

In a criminal prosecution, it is with-

in the trial court’s discretion to decide

whether the Government may use illus-

trative charts.

Appeals from the United States Dis-

trict Court for the Middle District of

Florida.

Before GIBSON ,* THORNBERRY and

AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Peter A. Palori and Joe Raymond Diez

appeal from convictions of conspiring to

defraud the United States by impeding

the Internal Revenue Service in the col-

lection of income tax in violation of 18

U.S.C. § 371. Palori also appeals from

his conviction on four counts of income

tax evasion. 26 U.S.C. § 7201. Both

defendants assign numerous errors in the

trial court’s rulings concerning the ad-

missibility and weight of hearsay evi-

dence, the propriety of a joint trial of

the defendants, and the possibility of

prejudice from the Government’s use of

illustrative charts.

I. Factual Background

The Government's case against Palori

and Diez involved a series of rea! estate

transactions in Tampa, Florida, between

1965 and 1968. The Government's theo-

ry was that Palori was the real owner of

shares of the various parcels sold in

these transactions, but that he had ar-

ranged for severa! of his relatives to act

as nomina! owners or brokers in the

transactions and to report part of the

* Of the Eighth Circuit, sitting by des:pnation

profits from the sales on their own tax

returns. Palori’s mother, Minnie Lopez,

reported profits from a number of the

transactions on her returns and was in-

dicted as a member of the conspiracy but

acquitted. Diez, who is Palori’s uncle,

reported part of the profit from one of

the transactions, as weil as two broker-

age commissions allegedly received in

connection with other transactions, and

interest on a loan he allegedly made to

Palori. B. J. DeGuzman, Palori’s ac-

countant during the tax years in ques-

tion, reported part of the profit from one

of the real estate transactions, and was

indicted and convicted both for his role

in the conspiracy and for preparing false

returns—specifically those of Palori and

his relatives.' The Government contend-

ed that all of this income was properly

attributable to Palori. James Garrett

and Clarence Prevatt, two unindicted co-

conspirators, also participated in seme of

the transactions.

Il. Evidence Allegedly Admitted in

Violation of the Hearsay Rule

A. Statements of Coconspirators

{1} Palori and Diez contend that it

was error to permit the introduction of

several statements by Garrett and De-

Guzman, two of their coconspirators,

which, they argue, were inadmissible un-

der the hearsay rule. The genera! prin-

ciples governing the introduction of out-

of-court declaratiors by one conspirator

against another, for the truth of the

matter stated, are clear:

It is established law, at least since

Krulewitch v. United States, 1949, 335

U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790,

and under so many cases prior to and

following Krulewitch that it would be

an affectation to cite them, thal acts

1. DeGuzman did not appeal hs conviction.

A-5

UNITED STATES v. DIEZ 6434

and declarations of co-conspirators are

binding upon each member of the con-

spiracy, if made during the life of the

conspiracy and in furtherance of any

of its objects.

United States v. Harrell, 5 Cir., 1970, 436

F.2d 606, 613. See United States v. Reg-

ister, 5 Cir., 1974, 496 F.2d 1072, 1078.

{2,3} The statements complained of

were part of the testimony of Agents

Brock and Hill of the Internal Revenue

Service. Brock testified that DeGuzman

told him, in an interview in November

1970, that during a prior audit another

agent, named Hunting, had proposed to

classify Palori as a dealer in real estate,’

and thus as ineligible for the special tax

treatment usually given long-term capi-

2. The fact that DeGuzman’s statement, like

numerous others introduced at trial, relied on

a statement by another person does not render

the testimony inadmissible. Agent Hunting’s

statement, reported to Agent Brock by DeGuz-

man, was a statement of his intention to clas-

sify Palori as a dealer in real estate. The

statement was received not Lo prove that Palo-

ri was or had been classified as a dealer, but

rather to prove that Agent Hunting intended to

regard him as one. The statement was thus a

“statement of the declarant’s then existing

state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design,

mental feeling, pain and bodily health)” and

falls under the well-established exception to

the hearsay rule for such statements. Fed.R.

Evid. Rule 803(3). DeGuzman was therefore a

competent witness to Hunting’s statement,

just as Agent Brock was a competent witness

to DeGuzman’s statement under the coconspir-

ator rule. “Hearsay included within hearsay is

not excluded under the hearsay rule if each

part of the combined statements conforms

with an exception to the hearsay rule provided

in these rules.” Fed.R.Evid. Rule 805.

The Federal Rules of Evidence were approved

by Congress on January 2, 1975, and take ef-

fect on the one hundred and eightieth day

thereafter. The Rules are to be applied even

in advance of their effective date “except to

the extent that application of the rules would

not be feasible, or would work [an] injustice.”

tal gains.» DeGuzman also stated in in-

terviews during July 1969 and July 1970,

according to the testimony of Agents

Brock and Hill, that he and Minnie Lo-

pez had paid fees and brokerage commis-

sions to Diez in connection with several

of the real estate transactions in the

case.‘

According to Agent Brock’s testimony,

in an interview during January 1972

Garrett stated that Diez “didn’t partici-

pate as a partner in any of Mr. Palori’s

real estate transactions, nor did he per-

form any services which would entitle

him to a commission.” This statement,

in contrast to that of DeGuzman con-

cerning payment of fees and commis-

sions, supported the Government’s con-

United States v. Rivera, 2 Cir., 1975, 513 F.2d

519. See United States v. Arias-Diaz, 5 Cir.,

1974, 497 F.2d 165, 170.

3. Palori made no objection to the introduction

of this statement, either on the basis of the

hearsay rule or on the basis of irrelevance, and

admission of the testimony was not plain er-

ror. Wright, Federal Practice and Procedure:

Criminal § 856 (1969). Therefore, it seems

doubtful that we can consider this assignment

of error as to Palori. Moreover, Agent Hunt-

ing was available and testified at trial. Nei-

ther Palori nor Diez has explained why they

did not attempt to cross-examine him or call

him as a witness on this issue.

4. Because DeGuzman's statement is consistent

with Palori and Diez’s version of the facts, it is

unclear how admission of this testimony preju-

diced defendants. Moreover, when Agent

Brock first interviewed Diez he specifically re-

ferred the agent to DeGuzman for answers to

any questions concerning his taxes. DeGuz-

man's statement, therefore, would appear to

be an “admission by an authorized agent,”

Hayes v. United States, 5 Cir., 1969, 407 F.2d

189, 192, and therefore would be admissible

irrespective of whether the coconspirator ex-

ception applies. In Hayes the accountant act-

ed pursuant to a written power of attorney,

but we know of no precedent requiring autho-

rization by a written instrument.

A-6

6435 UNITED STATES v. DIEZ

tention that income properly belonging

to Palori was being attributed to Diez as

part of the conspiracy. Agent Brock,

testifying as an expert witness, also stat-

ed that in computing Palori’s income for

1965 he disregarded a check from Palori

to Garrett, allegedly for the latter’s in-

terest in a parcel sold in one of the

transactions, because Garrett had told

him (in the January 1972 interview) that

he did not own an interest in the parcel

in question.’

Palori and Diez contend that these

hearsay statements were, at most, at-

tempts to conceal the completed crime,

and thus could not be introduced under

the coconspirator exception to the

hearsay rule. A review of the prior Su-

preme Court cases convinces us that this

argument must fail.

In Krulewitch v. United States, 336

U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790

(1949), the Supreme Court held inadmis-

sible the hearsay statement of a cocon-

spirator made after she had been ap-

prehended. The Government argued

that there was an implicit conspiracy to

conceal the crime. The Court noted,

however, that no such conspiracy to

conceal had been charged in the indict-

ment, and stated:

It is beyond doubt that the central aim

of the alleged conspiracy—transporta-

5. This testimony is largely repetitive of earlier

testimony by Agent Brock. On cross-examina-

tion his testimony strongly suggested that Gar-

rett had told him he held no interest in the

property in question. No objection was made

by defendants. His testimony on redirect ex-

amination, to which Palori objected, was large-

ly repetitive of his answers on cross-examina-

tion.

Garrett's statement to the agents disavowing

any ownership of a share in one of the parcels

sold in 1965 was also introduced in the form of

his tax return for that year, which contained

no reference to gain from that sale. Palori

tion of the complaining witness to

Florida for prostitution—had either

never existed or had long since ended

in success or failure when and if the

alleged co-conspirator made the state-

ment attributed to her.

336 U.S. at 442, 69 S.Ct. at 718.

In Lutwak v. United States, 344 U.S.

604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), a

conspiracy to conceal the crime was

charged in the indictment, but the Court

interpreted Krulewitch to require more

than an unsubstantiated allegation:

This Court in [Krulewitch] rejected

the Government’s contention that in

every conspiracy there is implicit an

agreement as a part thereof for the

conspirators to collaborate to conceal

the conspiracy.

344 U.S. at 616, 73 S.Ct. at 489. The

Court held in Lutwak that the Govern-

ment had failed to prove a conspiracy to

conceal the crime, and went on to discuss

what kind of proof would be sufficient.

See Grunewald v. United States, 353

U.S. 391, 403-405, 77 S.Ct. 968, 973-974,

1 L.Ed.2d 931 (1957).

[4] It is unnecessary to apply the

reasoning <eveloped in these prior cases

concerning proof of a conspiracy to

conceal a completed crime, because the

statements in question here were part of

contends that the tax return was inadmissible,

relying on Greenbaum v. United States, 9 Cir.,

1935, 80 F.2d 113, 125, which we cited approv-

ingly in dicta in United States v. Ragano, 5

Cir.. 1973, 476 F.2d 410, 417-418. Like the

testimony on redirect concerning Garrett's oral

statement to the agents, however, the informa-

tion supplied by the tax return was merely

repetitive of what Agent Brock had stated on

cross-examination without objection. Under

these circumstances, the admission of the tax

return and Agent's Brock’s statements on redi-

rect examination was not erroneous or preju-

dicial.

—s

A-7

UNITED STATES v. DIEZ 6436

the central conspiracy itself, which had

not terminated when those statements

were made. In this case the Govern-

ment charged a conspiracy to defraud

the United States by impeding the Inter-

nal Revenue Service in the collection of

income tax. This conspiracy is different

from the conspiracies discussed in the

cases relied on by defendants.

In Krulewitch the conspiracy was to

transport a woman across state lines for

prostitution in violation of 18 U.S.C.

§ 2421. That conspiracy clearly had end-

ed when the arrested coconspirator made

her statement. In Lutwak, supra, the

conspiracy was

“‘to defraud the United States of and

concerning its governmental function

and right of administering’ the immi-

gration laws and the Immigration and

Naturalization Service, by obtaining

the illegal entry into this country of

three aliens as spouses of honorably

discharged veterans.”

344 U.S. at 605, 73 S.Ct. at 483 (emphasis

added). The conspiracy to defraud was

complete when the conspirators deceived

the immigration officials into permitting

them to enter the country.£ The Court

held that coconspiratcrs’ statements

made later would not be admissible un-

der the coconspirator exception to the

hearsay rule. In Grunewald, supra, the

conspiracy was to defraud the United

States by preventing criminal tax prose-

cutions. The prosecutions were prevent-

6. The dissolution of the fraudulent marital re-

lations, after the aliens had entered the United

States but long before the indictments were

handed down, left little doubt that the conspir-

acy to defraud the Government had ended.

7. The conspiracy alleged in this case is similar

to the Supreme Court's exampies, in Grune-

waid, supra, of crimes that inherently involve

concealment.

ed through the procurement, by bribery,

of “no prosecution” rulings from the In-

ternal Revenue Service, and ended when

the rulings were issued.

On the other hand, in the present case

the central aim of the conspiracy was to

deceive officials of the Internal Revenue

Service, thereby inducing them to accept

fraudulent tax returns as truthful and

accurate. In light of the substantial pos-

sibility that the returns would be audited

and investigated, the filing of the re-

turns did not fully accomplish the pur-

pose of the main conspiracy, which, by

its very nature, called for concealment.’

The Supreme Court described a very

similar conspiracy in Forman v. United

States, 361 U.S. 416, 423-424, 80 S.Ct.

481, 486, 4 L.Ed.2d 412 (1960):

[T]he conspiracy was a continuing

one extending from 1942 to 1953 and

its principal object was to evade [tax-

es} for 1942-1945, inclusive, by

concealing [the conspirators’] “hold-

out” income. This object was not at-

tained when the tax returns for 1945

concealing the “holdout” income were

filed. As was said in Grunewald, this

was but the first step in the process of

evasion. The concealment of the

“holdout” income must continue if the

evasion is to succeed.

In some circumstances it may be diffi-

cult to determine precisely when the de-

ception has been accomplished in a con-

spiracy like this one.* A lapse of several

A-8

6437 UNITED STATES v. DIEZ

years between the filing of the last

fraudulent return and the initiation of

investigative efforts by the Government

might suggest that the conspiracy had

succeeded in its purpose. Statements

made during the course of such an inves-

tigation might be considered outside the

scope of the coconspirator exception.

That difficult determination is unneces-

sary in the present case, however, be-

cause an IRS audit of Palori’s returns

for 1965 and 1966 was undertaken in

April 1968 even before the last fraudu-

lent return involved here was filed.

Thus the conspirators were clearly on no-

tice that their activities had aroused sus-

picion and that further deception might

be necessary to fulfili their purpose. At

the time of the statements by DeGuz-

man and Garrett, it could not be said

that the conspiracy “had long since end-

ed in success or failure,” as was true in

Krulewitch. No charges had been

brought, so the conspiracy could not be

considered a failure, and the investiga-

tion had not been abandoned, so the con-

spiracy could not be considered a success.

“(T]he termination of a conspiracy

generally is an issue to be determined on

the facts of the individual case ...”

United States v. Sarno, 1 Cir., 1972, 456

F.2d 875, 878. We find no reversible

error in the District Court’s conclusion

that, for purposes of admissibility, there

was sufficient evidence that the state-

ments in question were made during the

course of the conspiracy. See United

States v. Nowak, 7 Cir., 1971, 448 F.2d

134, 189; Nassif v. United States, 8 Cir.,

1966, 370 F.2d 147, 151-152; United

yond the filing of the returns, such conspira-

cies cannot be said to have “ended in success

or failure” until either the conspirators are

caught or the statute of limitations has run on

any action to recover the evaded taxes. 361

U.S. at 424, 80 S.Ct. at 486.

States v. Hickey, 7 Cir., 1966, 360 F.2d

127, 140-141; United States v. Klein, 2

Cir., 1957, 247 F.2d 908.

15,6] Defendants contend that, even

if made during the conspiracy, several of

the statements made by DeGuzman and

Garrett to the IRS agents cannot be con-

sidered in furtherance of the conspiracy.’

Defendants argue that since the state-

ments were consistent with the Govern-

ment’s position at trial, they must be

considered as true; and true statements

do not further a conspiracy to deceive.

A statement need not be false in every

detail, however, in order to have been

made in furtherance of a conspiracy to

conceal! and defraud. Deception rarely

takes the form of an uninterrupted se-

ries of lies. A fair reading of the

agents’ interviews with DeGuzman and

Garrett convinces us that, taken as a

whole, the coconspirators’ statements

were deceptive in design, especially when

considered in conjunction with the ver-

sions of the facts related to the agents

by Palori, Diez and the others during the

investigation. The truthfulness of iso-

lated parts of the statements does not

affect this conclusion. Cf. Bruton v.

United States, 391 U.S. 123, 126, 88 S.Ct.

1620, 1622, 20 L.Ed.2d 476 (1968); Unit-

ed States v. Maddox, 5 Cir., 1974, 492

F.2d 104, 107.

B. Evidence Admitted Under the

Business Records Act

[7] The trial court received into evi-

dence, over defendants’ objections, sever-

al documents which the Government con-

tended were admissible under the Busi-

9. The fact that Garrett and Prevatt were not

made defendants in the case does not render

the coconspirator exception inapplicable to

them. United States v. Nixon, 418 U.S. 683,

700-701, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039

(1974).

A-9

UNITED STATES v. DIEZ 6438

ness Records Act. 28 U.S.C. § 1732(a).”

Defendants particularly objected to the

introduction of work papers, given to the

IRS agents by DeGuzman, showing that

Palori had a one-third interest in a pare

cel of land sold in one of the transactions

in the case, although Diez reported half

of the gain attributable to that one-third

share on his own tax return for 1965.

Defendants contend that proper founda-

tion for introducing the papers as busi-

ness records was ia ing. We need not

resolve that question, however, because

DeGuzman’s work papers, like his state-

ments discussed earlier, were admissible

under the coconspirator exception to the

hearsay rule. The work papers were

prepared shortly after the sale of the

parcel in 1965, and thus were statements

made during the course of the conspir-

acy. They also were in furtherance of

the purpose of the conspiracy: the filing

of false income tax returns."

The remainder of the documents in

question, objected to by Palori, are writ-

ings “made in [the] regular course of any

10. Section 1732(a) provides:

In any court of the United States and in any

court established by Act of Congress, any

writing or record, whether in the form of an

entry in a book or otherwise, made as a

memorandum or record of any act, transac-

tion, occurrence, or event, shall be admissi-

ble as evidence of such act, transaction, oc-

currence, or event, if made in regular course

of any business, and if it was the regular

course of such business to make such mem-

orandum or record at the time of such act,

transaction, occurrence, or event or within a

reasonable time thereafter.

Rule 803(6) of the Federal Rules of Evidence

provides:

The following are not excluded by the

hearsay rule, even though the declarant is

available as a witness:

(6) Records of regularly conducted activity.

A memorandum, report, record, or data

compilation, in any form, of acts, events,

business,” 28 U.S.C. § 1732, and were

otherwise qualified to be introduced un-

der the Act. Palori does not dispute

this, but raises other objections to the

admission of these documents, which we

deal with separately.

The Government offered in evidence

the work papers of Clarence Prevatt’s

accountant, showing a profit of $24,-

612.91 on the sale of a parcel of real

estate in 1968 and allocating $9,000 of

that profit as Palori’s share—$9,000 that

Palori did not report on his 1968 return.

The accountant testified that he prepar-

ed the work paper in the regular course

of business, specifically in the course of

preparing Prevatt’s 1968 tax return. He

also testified that Prevatt, an unindicted

coconspirator in the case, had provided

the information he used in his computa-

tions.

[8] Apparently Palori’s only objection

to the introduction of this document is

that, since the accountant could not tes-

tify to what Prevatt had told him con-

cerning the ownership of the land, the

conditions, opinions, or diagnoses, made at

or near the time by, or from information

transmitted by, a person with knowledge, if

kept in the course of a regularly conducted

business activity, and if it was the regular

practice of that business activity to make

the memorandum, report, record, or data

compilation, all as shown by the testimony

of the custodian or other qualified witness,

unless the source of information or the

method or circumstances of preparation in-

dicate lack of trustworthiness. The term

“business” as used in this paragraph in-

cludes business, institution, association, pro-

fession, occupation, and calling of every

kind, whether or not conducted for profit.

11. As we noted earlier in connection with De-

Guzman and Garrett's oral statements, the

fact that DeGuzman’s notations on the work

papers coincided with the Government's ver-

sion of the facts at trial does not mean that

they were not in furtherance of the conspiracy.

A-10

6439 UNITED STATES v. DIEZ

same information could not come in by

virtue of being preserved in a business

record. We believe, however, that the

accountant could have so testified, be-

cause Prevatt’s statements to him were

those of a coconspirator during the

course and in furtherance of the conspir-

acy. The purpose of the conspiracy was

to enable Palori to receive income from

the various real estate transactions »~.th-

out revealing his participation in them as

an owner and thus exposing himself to

tax liability. The statements of the con-

spirators that were intended to facilitate

the flow of funds to Palori were as much

in furtherance of the conspiracy as were

the statements designed to conceal the

disposition of the proceeds of the trans-

actions. Without Prevatt’s directions to

his accountant, which indisputably were

given before the conspiracy ended, Palori

would not have received his share of the

proceeds from the sale, and a major pur-

pose of the conspiracy would have been

frustrated.

To establish Palori’s intention to

conceal his participation in one of the

transactions in 1967, the prosecution of-

fered a letter from an official of the

title company that closed the sale, stat-

ing that Palori “did not want his name

to appear because he did not think it.

was politically expedient that it do so.”

The title company official testified that

he wrote the letter in the regular course

of business and that Palori himself was

the source of his statement concerning

the omission of Palori’s name from the

transaction.”

12. Palori contends that the title company offi-

cial could not remember whether Palori specif-

ically directed that his name be kept out of the

transaction or whether he simply drew that

conclusion himself. A careful reading of the

testimony to which Palori refers, however,

shows that the official's uncertainty concerned

[9] Palori contends that the title

company officer’s letter should not have

been admitted because he was available

to provide his own testimonial recollec-

tion of the facts in the letter. Availabil-

ity of the declarant, however, does not

bar introduction of a document under

the Act. McCormick on Evidence § 311

at 728-729 (1972); Fed.R.Evid. Rule

803(6).

{10} As further evidence of Palori’s

concealment of his participation in the

transactions, the prosecution introduced

a letter from an attorney for the seller

of a parcel purchased and later resold by

Palori. It stated that Palori was the

actual mortgagor of the property, even

though the parcel was held in the name

of Minnie Lopez, Palori’s mother. The

attorney testified that he prepared the

letter in the regular course of his busi-

ness. He stated that he had written

Mrs. Lopez to tell her where to send the

mortgage payments, but she had failed

to make the first payment. Garrett in-

tervened, informing the attorney that

Palori was the actual mortgagor of the

property and would be making the pay-

ments.

Palori maintains that the attorney was

uncertain of the source of his informa-

tion, but a review of the attorney’s testi-

mony reveals this contention to be with-

out merit. Furthermore, the fact that

the attorney relied on Garrett’s state-

ment does not render admission of the

letter violative of the hearsay rule. The

statement was made in 1967, long before

the conspiracy ended. It was in further-

a different part of his letter. In any event, the

clear import of the text of the letter is that

Palori had requested that his name not be

«mentioned, and a specific present recollection

of that fact on the part of the writer of the

letter is unnecessary.

A-11l

UNITED STATES v. DIEZ 6440

ance of the conspiracy because the attor-

ney had already brought foreclosure pro-

ceedings against Minnie Lopez. If Gar-

rett had not intervened the conspirators

could not have resold the property.

Ill. Sufficiency of the Evidence as to

Diez

[11] Diez contends that the trial

court erred in denying his motion for

acquittal under Rule 29 of the Federal

Rules of Criminal Procedure, because the

evidence was insufficient for submission

of the case to the jury. His argument is

based chiefly on the paucity of refer-

ences to his role in the conspiracy by the

numerous witnesses at trial. Under the

Government’s theory of the case, how-

ever, Diez’s role was amply established

by the evidence.

The Government sought to prove that

Diez had reported income that was not

properly attributable to him. That the

income was reported by Diez was estab-

lished by introducing his tax returns for

1965, 1966, 1967 and 1968. The other

half of the Government’s case against

Diez was more difficult, because it re-

quired proof that Diez had not earned

the income in question and had not

owned a share of the property that was

the source of the sales proceeds listed on

his return.

[12] The prosecutor asked a number

of witnesses whether they knew Diez,

and many of them answered affirmative-

ly. Diez argues that, because the prose-

cutor did not pursue the relevance of

these witnesses’ familiarity with Diez,

13. United States v. Oliva, 5 Cir., 1974, 497

F.2d 130, 134; United States v. Suarez, 5 Cir.,

1973, 487 F.2d 236, 239, United States v. Mar-

tinez, 5 Cir., 1973, 486 F.2d 15, 24; United

States v. Jackson, 5 Cir., 1970, 426 F.2d 305,

309: Jett v. United States, 5 Cir., 1968, 393

F.2d 139, 140; Causey v. United States, 5 Cir.,

his conviction was the product of guilt

by association. It is true that mere asso-

ciation with members of a conspiracy is

insufficient to establish a person’s partic-

ipation in the conspiracy," but in this

case it was the defendant’s nonassocia-

tion that proved his guilt. Despite his

acquaintance with a number of the wit-

nesses at trial, Diez was not mentioned

as a participant in the real estate trans-

actions by anyone but Palori and, in one

statement, DeGuzman.

Simon Wooten, an associate of Palori

who owned a one-third share of one of

the parcels sold, indicated no knowledge

of any participation in the transaction by

Diez, who nevertheless reported the

profit from a one-sixth interest in the

property on his return. Gaston Fernan-

dez, the real estate broker who handled

the transaction, identified only Palori,

Garrett, and Simon Wooten as owners of

the land. Diez’s name did not appear on

any documents connected with the sale,

and there was no record of any payment

of sale expenses by him. Although the

other owners received payments from

Palori by check for their interests in the

property, there was no record of any

such check from Palori to Diez. DeGuz-

man’s worksheet compiled during the

preparation of Palori’s 1965 tax return,

lists one-third interests held by Palori,

Garrett, and Simon Wooten.

Diez reported a $5,000 brokerage com-

mission, allegedly paid by Minnie Lopez,

from another real estate sale involved in

the case. The broker who procured the

purchase option by which the owners

1965, 352 F.2d 203, 207; Panci v. United

States, 5 Cir., 1958, 256 F.2d 308, 312; United

States v. Cantone, 2 Cir., 1970, 426 F.2d 902,

904. Cf. United States v. Menichino, 5 Cir.,

1974, 497 F.2d 935, 942-943; United States v.

Edwards, 5 Cir., 1974, 488 F.2d 1154, 1158.

A-12

6441 UNITED STATES v. DIEZ

(Palori and others) acquired this land,

however, knew of nothing Diez had done

in connection with the property which

would warrant receipt of a commission.

The closing statements for this transac-

tion show payment of commissions to

several real estate brokers, but Diez is

not among them. Although in all the

other ciransactions Minnie Lopez paid

sale expenses by purchasing cashier’s

checks with cash withdrawals from her

savings account, there was no such check

payable to Diez.”

Diez also reported a $6,000 commis-

sion, allegedly paid to him in cash by

DeGuzman, in connection with another

real estate transaction involved in the

ease. Like Minnie Lopez, DeGuzman

consistently made payments by check in

the other transactions. The real estate

broker who helped Palori and Garrett

obtain an option to purchase on the

property, which was later sold, testified

that he knew of no efforts by Diez in

connection with the property which

would warrant receipt of a commission.

Finally, Diez reported as his income

$3,200 allegedly paid to him by Palori as

interest on a loan. Palori’s records con-

tain no indication, however, of such pay-

ments. Nor is there any evidence that

any such loan was made to Palori by

Diez.

The pattern of Diez’s reporting of in-

come also reinforced the Government’s

case. For three of the four years in

question (1965-1968), Diez reported sub-

stantial losses consistently in excess of

14. At trial Palori offered a different explana-

tion of Diez’s receipt of the $5,000. He stated

that Diez had made arrangements for sewer-

age hook-ups for a parcel sold in Minnie Lo-

pez’s name, and he had recommended that she

pay Diez $5,000 for his services. The Govern-

ment introduced evidence showing that Palori

was aware of the need for sewerage hook-ups

his gains from the real estate transac-

tions. In 1966, the only year in which

Diez reported no losses, no gains from

commissions or the sale of real estate

were reported on his return.

Against all this evidence there was

only the out-of-court statement of De-

Guzman (to which Agent Brock testified)

concerning his payment of a commission

to Diez, for which he furnished an al-

leged receipt, and the testimony of Palo-

ri, who stated that Diez participated in

all of the transactions from which he

reported income, but had been paid in

cash each time and had participated

without the knowledge of anyone but

himself, DeGuzman, and Minnie Lopez.

[13] The standard we must apply in

reviewing a denial of a motion for ac-

quittal is clear. “The verdict of a jury

must be sustained if there is substantial

evidence, taking the view most favorable

to the Government, to support it.” Glas-

ser v. United States, 315 U.S. 60, 80, 62

S.Ct. 457, 469, 86 L.Ed. 680 (1942). That

the Government’s case rested in substan-

tial part on circumstantial evidence does

not change that standard. Id.; United

States v. Prince, 5 Cir., 1974, 496 F.2d

1289, 1293; McFarland v. United States,

5 Cir., 1960, 273 F.2d 417, 419. “Circum-

stantial evidence in this respect is intrin-

sically no different from testimonial evi-

dence.” Holland v. United States, 348

U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed.

150 (1954). See United States v. Miller,

5 Cir., 1974, 500 F.2d 751, 763. Our ex-

amination of the evidence and applica-

long before he allegedly commissioned Diez to

look into the matter and had hired an expert

engineer to solve the problem. Palori main-

tains that the engineer was hired in connection

with sewerage hook-ups for another parcel

sold in the same transaction, but that was a

question for the jury.

A-13

UNITED STATES v. DIEZ 6442

tion of the appropriate standard of re-

view compels the conclusion that the tri-

al court did not err in denying Diez’s

motion for acquittal.

IV. Defendants’ Motions for Sever-

ance

Palori contends that the trial court

erred in refusing to grant him a trial

separate from DeGuzman’s. Diez con-

tends that the trial court erred in re-

fusing to grant him a trial separate from

Palori’s. Both of these assignments of

error are without merit.

A. Palori’s Motion

[14] After the Government and the

other defendants had rested and he had

presented his evidence, Palori moved for

a severance, alleging that DeGuzman

would testify in his behalf if a separate

trial was granted. Palori’s proffer in

support of his motion was, in its entire-

ty, as follows:

He [DeGuzman] would be prepared to

testify for and on behalf of Mr. Palori

as to the manner and means by which

he computed the taxes and his error or

omission on the 1967 tax return. His

advice from time to time on tax mat-

ters.

{15} In Byrd v. Wainwright, 5 Cir.,

1970, 428 F.2d 1017, we discussed the

factors a trial court should consider in

ruling on a motion for severance based

on the unavailability of a codefendant

whose testimony is allegedly needed.

First, the movant must show a bona fide

desire to use the codefendant’s testimo-

ny. In Byrd the movant’s assertions

concerning the importance of the code-

fendant’s testimony were made “with

full exploration of reasons.” 428 F.2d at

1020. Here, in contrast, the defendant

offered an _ unelaborated conclusory

statement.

Second, the codefendant’s testimony

must be specifically shown to be excul-

patory. United States v. Wilson, 5 Cir.,

1974, 500 F.2d 715, 721. In this case the

defendant’s proffer not only lacked suffi-

cient detail but also was bereft of excul-

patory content. Palori had based prior

motions for severance on the allegedly

prejudicial effect of admissions made by

DeGuzman during the _ investigation.

His proffer contained nothing to erase

this suggestion that DeGuzman would be

a damaging, rather than exculpating,

witness. The testimony briefly described

in the proffer was irrelevant. Palori’s

defense was not that he relied in good

faith on advice that proved to be incor-

rect. He contended that the transac-

tions were exactly as represented on the

various tax returns. As to the omission

on Palori’s 1967 tax return, Palori had

already stated that the proceeds from

one of the sales was left out of the re-

turn inadvertently. See United States v.

Burke, 5 Cir., 1974, 495 F.2d 1226, 1234.

Cf. United States v. Shuford, 4 Cir.,

1971, 454 F.2d 772, 778.

Third, the movant must show a sub-

stantial likelihood that the codefendant

will testify if the severance is granted.

In Byrd the prosecutor and other de-

fense counsel advised the judge, before

he ruled on the severance motion, that

the codefendant would testify if a sepa-

rate trial was granted. Here there is

nothing to show why DeGuzman would

be any more willing to testify in a sepa-

rate trial than in a joint trial. See Unit-

ed States v. Cochran, 5 Cir., 1974, 499

F.2d 380, 391-392; United States v.

Burke, supra, 495 F.2d 1226, 1234.

Finally, the trial judge shouid consider

the timeliness of the motion and the ef-

fect of a severance on economy of judi-

cial resources. Byrd v. Wainwright, su-

pra, 428 F.2d at 1020; United States v.

A-14

6443 UNITED STATES v. DIEZ

Burke, supra, 495 F.2d at 1234; United

States v. Johnson, 5 Cir., 1973, 478 F.2d

1129, 1134. In the present case, Palori

has offered no explanation for making

his motion very late in the trial.“ Hav-

ing spent three weeks of trial time hear-

ing the testimony of over sixty witnesses

and considering over three hundred doc-

uments, the trial judge was not obliged

to treat Palori’s motion as he would an

ordinary severance request made at the

outset of a trial.

The granting of a motion for sever-

ance under Rule 14 of the Federal Rules

of Criminal Procedure is within the trial

court's discretion. E. g., Opper v. United

States, 348 U.S. 84, 95, 75 S.Ct. 158, 165,

99 L.Ed. 101 (1954); United States v.

Burke, supra, 495 F.2d at 1233-1234;

Byrd v. Wainwright, supra, 428 F.2d at

1018; Smith v. United States, 5 Cir.,

1967, 385 F.2d 34, 38. We find nothing

to indicate an abuse of discretion on the

part of the trial court in denying Palori’s

motion."

B. Diez’s Motion

Diez contends that trying him with

Palori was inherently unfair, because of

the sheer complexity of the case and the

impossibility of expecting the jury to re-

strict their consideration of evidence ad-

mitted against less than all the defend-

ants. Closely related to this contention

is Diez’s assertion that the trial court’s

general instructions to the jury concern-

15. Palor’s two prior motions for severance

were not based on the contention that DeGuz-

man would testify in his behalf, and he has not

contended on appeal that the denial of these

earlier motions is error.

16. Palori alternatively requested that the court

bifurcate the jury deliberations, so that De-

Guzman's guilt or innocence could be resolved

whereupon he would testify for Palon. This

procedure would have been impractical and

unwarranted. The jury could not have deter-

ing the admissibility of evidence in a

conspiracy trial were inadequate.

{16} The complexity of a trial, by it-

self, is insufficient grounds for overturn-

ing a trial court’s denial of a severance

motion. In complex trials the pressures

against severance are especially great,

because of the drain on judicial resources

that would be created by separate trials.

See Byrd v. Wainwright, supra; United

States v. Martinez, supra, 486 F.2d at 23.

The only specific evidence cited by

Diez as prejudicing him in the joint trial

was a record of zoning proceedings held

by the Hilisborough County Commission

in late 1966 and early 1967, and a finan-

cial statement given by Palori to his

bank in September 1964. The minutes

of the Commission proceedings were in-

troduced to refute Palori’s contention

that he recommended to Minnie Lopez

that she pay Diez a $5,000 commission

for arranging sewer hook-ups to a parcel

of property sold in her name in 1967.

This evidence showed that Palori ha’

been aware of the sewerage problem

months before he allegedly commissioned

Diez to look into the matter, and had

hired an engineer to develop plans for

sewerage connections. The minutes sup-

ported the Government’s contention that

Diez had not earned the $5,000 he re-

ported on his 1967 tax return. They

were admissible against both Palori and

Diez as proof of the existence of a con-

spiracy to conceal Palori’s income."

mined DeGuzman's guilt or innocence on the

conspiracy count without coming to a conclu-

sion concerning Palori's guilt or innocence on

the substantive count, which would nullify the

purpose of having the bifurcated deliberation

in the first place.

17. Diez asserts that a cautionary instruction

was necessary because this evidence was of-

fered only to impeach Palori's credibility. Al-

though in its brief the Government does use

the term “impeachment” in discussing Diez's

Se

A-15

UNITED STATES v. DIEZ 6444

[17,18] Diez’s objection to the admis-

sion of Palori’s financial statement is

also without merit. Palori furnished the

statement to his bank in connection with

an application for a loan several months

before, under the Government’s theory,

the conspiracy began. The statement

purported to list Palori’s outstanding ob-

ligations, yet made no mention of a loan

from Diez. By casting doubt on whether

Palori had made a $3,200 payment of

interest to Diez, the evidence supported

the Government’s charge of a conspiracy

to conceal Palori’s income. Although the

court did not give an instruction to the

jury cautioning that Palori’s admission

was not binding on Diez, or the other

alleged coconspirators, such an instruc-

tion was given in connection with the

introduction of a similar financial state-

ment by Palori later in the trial. More

importantly, the jury was repeatedly in-

structed throughout the trial that

“{s]tatements of any conspirator which

are not in furtherance of the conspiracy

or made before its existence or after its

termination may be considered as evi-

dence only against the person making

contention, this evidence is referred to as

“impeachment of Palori’s testimony.” The

context in which the Commission records were

offered leaves no doubt that they were intro-

duced as evidence of guilt.

Palori contends the minutes were introduced

to inject an element of political scandal into

the trial, because they suggest connivance be-

tween him and Prevatt, an unindicted cocon-

spirator and member of the Commission, to

arrange for zoning variances and changes. As

we explained in our discussion of Diez’s mo-

tion for severance, however, there were iegiti-

mate reasons for the introduction of the min-

utes. [he Government is not required to fore-

go valuable evidence merely because it may

lay bare the unsavory details of a defendant's

dealings.

18. Diez challenges the correctness of the

court's cautionary instruction concerning the

kind of evidence admissibie to connect a de-

it.” In light of these instructions we fail

to see how Diez was prejudiced by the

introduction of Palori’s pre-conspiracy fi-

nancial statement.

To say that the jury might have been

confused amounts to nothing more

than an unfounded speculation that

the jurors disregarded clear instruc-

tions of the court in arriving at their

verdict.

Opper v. United States, supra, 348 U.S.

at 95, 75 S.Ct. at 165."

V. The Government’s Use of Charts

{19} Palori and Diez claim prejudice

by the Government’s use of illustrative

charts and summaries in connection with

the testimony of its summary witness,

Agent Brock. Their argument is that

the captions on the charts and the head-

ings on various columns of figures mis-

led the jury by assuming the central fact

to be proved at trial—to whom various

items of income were properly attributa-

ble.® The caption on one chart, for ex-

ample, reads “Schedule of Sales, Net

Taxable Gains to Peter A. Palori And

fendant with a conspiracy. The record shows

that the trial judge apparently did skip a line,

inadvertently, when he first read to the jury

the standard instruction on this point. No one

objected. Moreover, the instruction was cor-

rectly repeated throughout the triai, thus elimi-

nating any possibility of prejudice.

19. Defendants also object to the parts of one

chart listing the total sales price of the proper-

ties sold and the listing of the taxable gains,

rather than the entire gains, reported by De-

Guzman and Minnie Lopez on the various real

estate transactions. We find no prejudice

from the listing of the sales prices. Further-

more, the taxable gain to Lopez and DeGuz-

man was only half of the entire gain because

they reported these items of income as iong-

term capital gains. If the entire gain had been

shown, the chart would have given a mislead-

ing indication of the amount of taxable income

Palori had avoided reporting.

A-16

6445 UNITED STATES v. DIEZ

Amounts Not Reported Or Taxable Gain

Reported By Others.”

The charts undeniably make assump-

tions concerning the proper attribution

of the income from the transactions in

this case, and the propriety of Palori and

Diez’s attributions of this income was

the crucial issue at trial. Any such chart

of computations, however, must rest on

certain assumptions. Contrary to de-

fendants’ argument, the essential re-

quirement is not that the charts be free

from reliance on any assumptions, but

rather that these assumptions be sup-

ported by evidence in the record. Unit-

ed States v. Lawhon, 5 Cir., 1974, 499

F.2d 352, 357; Gordon v. United States,

5 Cir., 1971, 438 F.2d 858, 876; Myers v.

United States, 5 Cir., 1966, 356 F.2d 469,

470; Azcona v. United States, 5 Cir.,

1958, 257 F.2d 462, 466; Barsky v. Unit-

ed States, 9 Cir., 1964, 339 F.2d 180, 181-

182. See Watkins v. United States, 1

Cir., 1961, 287 F.2d 932, 934.” In this

case it is indisputable that the assump-

tions on which the Government based its

charts—that is, its version of the facts—

were amply supported by evidence al-

ready presented to the jury.

20. Baines v. United States, 5 Cir. 1970, 426

F.2d 833, relied on by defendants, is inappo-

site. In that case the crucial issue was wheth-

er dancing and music occurred simultaneously

after 9:30 p. m. in a nightclub, for purposes of

a cabaret tax on the sale of liquor. The

Government relied on a chart computing the

amount of taxes based on the assumption that

every sale of liquor after 9:30 p m. occurred

while music and dancing were occurring

simultaneously. There was no evidence to

support that assumption. In this case, each

representation made on the charts 1s sup-

ported by evidence in the record.

21. Contrary to defendants’ assertion, relying

on Steele v. United States, 5 Cir. 1955, 222

F.2d 628, this Court has never held that the

{20} The court should instruct the

jury that “summaries do not, of them-

selves, constitute evidence in the case

but only purpert to summarize the docu-

mented and detailed evidence already

submitted.” #4 Gordon v. United States,

supra, 438 F.2d at 877. See Myers v.

United States, supra, 356 F.2d at 470.

In this case such instructions were given

both when the Government’s summary

witness testified and again at the close

of the case. We believe the court’s in-

structions eliminated any possibility of

the charts confusing the jury.

{21} It is within the trial court's dis-

cretion to decide whether the Govern-

ment may use illustrative charts. Unit-

ed States v. Lawhon, supra, 499 F.2d at

357; Gordon v. United States, supra, 438

F.2d at 877; Bobsee Corporation v. Unit-

ed States, 5 Cir., 1969, 411 F.2d 231, 241;

Lloyd v. United States, 5 Cir., 226 F.2d

9, 16; United States v. Dana, 7 Cir.,

1972, 457 F.2d 205, 207-208. We per-

ceive no abuse of discretion here.

Having reviewed all of defendants’ as-

signments of error carefully, we find no

reversible error.

Affirmed.

jury cannot take illustrative charts with them

to the jury room. In that case we held only

that the charts in question, because of their

composition and layout, could not properly

have been submitted to the jury, and that it

was doubly prejudicial to accede to the jury's

request for the charts after the deliberations

began. See Flemuister v. United States, 5 Cir.,

1958, 260 F.2d 513, 516; United States v. War-

ner, 8 Cir., 1970, 428 F.2d 730, 737.

22. Defendants contend that the court de-

scribed these charts in its instruction to the

jury @ “summaries of facts.” Although that

phrase appears in the Government's proposed

instruction, the record shows that the trial

judge did not use this language.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

United States Court of Appeals

FOR THE Fif TH Circuit

October Term, i9 74

No. 74-2641

D. C. Docket No. cCpr-72-210

UNITED STATES OF AMERICA,

Plaintiff-Appelilee,

versus

JOE RAYMOND DIEZ and PETER A, PALORI,

De fendants-Appellants,

Appeak from the United States District Court for the

Middle District of Florida

Before GIBSON,* THORNDERRY and AINSWORTIi, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Middle

District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here ordered and adjudged

by this Court that the judgment of the said Distriot Court in this

oause be, and the same is hereby, affirmed,

July 14, 1975

Issued as Mandate:

* Or the Tichth Circuit, sitting by

designation,

BEST GO°Y fy ABLE

Pe

Before

1-18

IN THE UNITED SYATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UW S COURT OF APPEALS

NO. 74-2641 FILED

A> 22 1975

UNITED STATES OF AMERICA,

EDWARD W. WADSWORTH

CLERK

Plaintiff-Appellee,

versus

JOE RAYMOND DIEZ and PETER A. PALORI,

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

( August 22 » 1975 )

GIBSON*, THORNBERRY and AINSWORTH, Circuit Judges.

PER CURIAM:

T IS ORDERED that the petition for rehearing

on behalf of Joe Raymond Diez

filed in the above entitled and numbered cause be and the

Same is hereby DENIED,

~~* OF the Eighth Circuit, sitting by designation.

EOWARO W WADSWORTH

c.sen

A-19

Alnited States Court of Appeals

PieTH CIRCUIT

OFFICE OF THE CLERK

@00 Cae sreter

NEW OF. CONS La FOTO

TEL EPRONE 604.569 6514

September 26, 1975

TO ALL COUNSZ2L OF RECORD

No. 74-2641 - U.S.A. vs. Joe Raymond Diez aad

veter A. Palori

Guar Commaes: as to appellant, Peter A, Palori

This is to advise that an order/has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en bane (Rule 35, Federal Rules of Appellate Procedure;

Loeal Fifth Circuit Rule 12) the petition( ) for rehear-

ing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

LDWARD W. WADSYORTH, Clerk

4},? ‘

by ‘hag

Deputy Clerk

ce: “Mr, Raymond E, LaPorte

Mr. E. David Rosen

Mr. Claude Tison, Jr.

if

,

—*

/

Supreme Court uf the United State

No. 4.24}

JOE RAYMOND NIL,

ticioner

V.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsiprraTIon of the application of counsel for petitioner( ),

Ir Is OnpeRep that the time for filing a petition for writ of certioran

the above-entitled cause be, and the same is hereby, extended to and includi

lctober 2] 19 75

Lewis | Powell

Associate Jusace of the Supreme

Court of the United States

Dated this - i7t!

September _ 19 75

dav of