Petition — Ganie v. United States

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IN THE

Supreme Court of the Wnited States

October Term of 1975

Nn. 45-6714

JOSEPH GANIE,

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

eee

Petition For A Writ oF CERTIORARI TO THE UNITED

States Court oF APPEALS For THE THIRD CIRCUIT

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Of Counsel and on the Brief:

Maria MARINARI SYPEK

Gerald R. Stockman, P. A.

Broad Street Bank Building

Trenton, New Jersey 08608

GeraALp R. STOCKMAN

Attorney for Petitioner

Broad Street Bank Building

Trenton, New Jersey 08608

i

TABLE OF CONTENTS

SE SS rca eas Che es SRE de Oha ne Ceca awa es

Jurisdiction

rs.€ ee ae. we Oe ee 2S Se BO CO :6, 0:8 06 6.6 8 2 0:08 £6 S.S.0 63 2 2 Oe

A eh san os ee ink oko hee kd

Constitution and Statutory Provisions .................

EEN SO iced SENSE a ate Sean sar Ane eae aD De

Reasons for Granting the Writ ...................205-

1.

to

Conclusion

The decision of the United States Court of Ap-

peals for the Third Circuit denied a criminal

defendant's federal constitutional right to a fair

trial in accordance with due process of law in

conflict with other Federal Court decisions ....

. The decision of the United States Court of Ap-

peals For the Third Circuit was a consideration

of a federal question not yet settled by the

United States Supreme Court ..............

. This Court has not settled the question of

whether it is a denial of due process to allow

the U. S. Attorney to dismiss a major part of

a multiple-count indictment initially presented

to the jury, the dismissal occurring before the

actual trial had commenced .................

ee gc Woee wae ds

Appendix A

Appendix B

Verdict rendered in Federal District Court of

I 6 pba 605646580 Kbabeene Rh eens

Order of Federal District Court of New Jersey

Granting New Trial Counts II and III and

Denying New trial Count [V ..............

9

il

TABLE OF AUTHORITIES

PAGE

Cases:

Alcorta v. Texas, 355 U. S. ZB (1DSD) ...ccececeee 11

Berger v. United States, 295 U. S. 78 (1935) .... 13

DeMarco 7. United States, 415 U. S. 449 (1974) .. 9,12

Es porte Gatae, 121 U. S. 1 (BBRB) ..... 2.000: 13

Gunville v. United States, 386 F2d 186 (8th Cir. 1967 ) 14

Larrison v. United States, 24 F2d 82 (7th Cir. 1928) 7

McClintock v. United States, 60 F2d 839

SR, oo ne ce cede eek eeeeeenees 14

Mesarosh v. United States, 352 U. S. 1 (1956) ..... 9,10

Mooney v. Holohan, 294 U.S. 109 (1934) ........ 9,11

Nepue v. Illinois, 360 U. S. 264 (1958) .......... 9, 10, 11

Pyle v. Kansas, 317 U. S. 213 (1940) ............ 9,11

Salinger v. United States, 272 U.S. 542 (1926) .... 13

United States v. Jackson, 257 F2d 31 (3rd Cir. 1958) 6,7,8

United States v. Meyers, 484 F2d 113 (3rd Cir. 1973) 6,7

United States v. Rabb, 453 F2d 31 (3rd Cir. 1958) .. 6,8

United States Constitution

ROIS Bn iv ic cesaccteccestescesevdceesss 2

Statutes :

oh! ee 4 PveeererTrereerreereee 2

ee Wes FE GBD Kconesedetvee cease 2

y Bis tae SB . 2) PPereerrrerer eres er 2

Other Authorities:

Aschuler, The Prosecutor's Role in Plea Bargaining,

| oa Se Se Ft | eer TTrrreerere 14

Appendix C

Opinion and Judgment of U. S. Court of

Appeals for the 3rd Circuit ........... C-1

Appendix D

Constitutional and Statutory Provisions 1-1

IN THE

Supreme Court of the United States

October Term of 1975

No.

JOSEPH GANIE.

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

PETITION For A Writ oF CERTIORARI TO THE UNITED

STATES CourT OF APPEALS FOR THE THIRD CIRCUIT

OPpINions BELOW

The jury trial held in the United States District Court of

New Jersey resulted in the guilty verdict for the defendant. See

Appendix A. A motion for a new trial was held on Novem-

ber 4, 1974 at the Federal District Court of New Jersey grant-

ing a new trial on two Counts, but denying it as to the third

Count. See Appendix B. The United States Court of Appeals

For the Third Circuit affirmed the unreported finding of the Fed-

eral District Court of New Jersey on October 6, 1975 in an un-

reported opinion, see Appendix C.

JURISDICTION

The opinion of the Court below was entered on October 6,

1975.

The jurisdiction of this Court is invoked pursuant to 28

U. S. C. Sec. 1254(1).

(JUESTIONS PRESENTED

Whether the United States Court of Appeals For the Third

Circuit erred in failing to require a new trial where the initial

presentation of a Fourteen Count indictment to the jury, later

inexplicably reduced to Four Counts created an unduly preju-

dicial effect in abrogation of the Petitioner's rights of due proc-

ess. :

The United States Court of Appeals For the Third Circuit

erred in failing to grant a new trial where the jury reached its

verdict based on false and misleading testimony which was em-

phasized through a re-reading once deliberations commenced, in

derogation of the petitioner's constitutional rights guaranteed un-

der due process of law.

The United States Court of Appeals For the Third Circuit

erred in failing to grant a new trial where the totality of the

circumstanc.. surrounding the trial denied the petitioner's con-

stitutional right to a fair trial.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant provision of the United States Constitution

involved in this case is Amendment 5. This provision is set forth

in Appendix D. The relevant statute under which the petitioner

was convicted is 26 U. S. C., Sec. 7206(2), the body of which

is set forth in Appendix D.

STATEMENT OF CASE

Mr. Joseph Ganie and his wife, Elinor, were indicted on

April 4, 1973. A Fourteen Count indictment alleged violations

of 18 U.S. C., Sec. 371 and 26 U. S. C., Sec. 7206(2) involv-

ing conspiracy and aiding and abetting in the preparation of

false income tax returns which they knew to be false and fraudu-

lent as to material matters.

Mr. Ganie’ is a ffty-year old, black family man with four

children, who worked himself up from various jobs to his pres-

ent position as an area manpower representative of the A. F. L.-

C. 1. O. Human Resources Development Institute. In addition

to that position, Mr. Ganie, as a family venture, operates an in-

come tax service, his clientele constituting the lower middle class

to middle class worker. His service is operated from his home

and has been since 1954. Briefly, the procedures he uses are

as follows: He interviews the client, prepares the proper tax

return, reviews it with the client, has the client sign the form,

then mails the form along with any checks 's may be required to

the Internal Revenue Service. Some months later after the tax

season, he sends each client a copy of the form as submitted to

the Internal Revenue Service.

A trial date was set for June 18, 1974 to take place in

the United States District Court of New Jersey. After a two-

day delay, since the government's case was not ready, the trial

actually began June 21, 1974. At that time, the government

made a motion to dismiss all counts of the indictment against

Elinor Ganie, as well as Counts One, Six, Seven, Eight, Nine,

Ten, Eleven, Thirteen and Fourteen of the same indictment

against Joseph Ganie. This was subsequently made known to

the jury.

Up to this point, and including the trial itself, the defend-

ant had been represented by Robert R. Ross, Esq., an Attorney-

at-Law in Trenton, New Jersey. Mr. Ross, on the night of

June 20, 1974, the eve of the actual trial, experienced a great

family tragedy in the unexpected death of his mother-in-law.

The circumstances and their effect on his ability to adequately

conduct the trial the next morning are part of the record on ap-

peal through supplementary affidavits.

Despite the mental stress and strain of Mr. Ross, it was

decided that the trial! should proceed in view of the two-day

delay the jury had already experienced. The government pro-

duced in the main, four witnesses, all of whom were clients of

Mr. Ganieand allegedly victims of his false filing.

3

Count Twelve of the origina! indictment was dismissed at

the end of the government's case. Therefore, the jury considered

and rendered a verdict on a Four Count indictment. They found

defendant Ganie net guilty on Count One, and guilty on the

two counts involving Sarah Coleman, and the Fourth Count in-

volving the Dominiak return.

Dietrich, Stockman « Lake, P. A. were substituted as attor-

neys and a motion for a new trial was argued by Gerald R.

Stockman, Esq., of that firm. The Hon. George H. Barlow,

U. S. D. J. granted the motion for a new trial sought under

F. R. Crim. P. 33 on the two counts involving the Coleman

return, but denied the motion as to the Dominiak return. (Ap-

pendix B). The defendant thereafter appealed the denial of the

motion for a new trial as to the Dominiak return to the U. 5.

Court of Appeals for the Third Circuit. On October 6, 1975, the

United States Court of Appeals for the Third Circuit affirmed

the decision of the Federal District Court of New Jersey (Ap-

pendix C).

The essential facts upon which the appeal was based and

upon which the Petition for Writ of Certiorari is now based

concerns the testimeny of Sarah Coleman and its effect on the

entire verdict, and more particularly, on the finding of guilt as

to the Dominiak Count.

Mrs. Coleman testified that Mr. Ganie had prepared her

1971 and 1972 income tax returns. She testified that she had

not told Mr. Ganie to deduct the $129.50 on her 1971 return

and the $128.70 on her 1972 return for the state and local gaso-

line tax. It was elicited on direct examination that she does not

own a car, nor does she buy gasoline for anyone else. However,

on cross, although agreeing that Mr. Ganie entered what she had

told him to enter on the return, she stated that she did not tell

him to deduct the gasoline tax and further, that it was not in-

cluded on the copy she herself received in the mail and which

she had in her possession at trial.

After the case was submitted to the jury, and after approx-

imately two hours of deliberation, without a verdict, the jury

requested a clarification: “Did Sarah Coleman testify that the

4

copy of her income tax which she had in her purse did not have

the gas deduction on it? Upon the insistence of defense counsel

not to merely answer the question directly, it was decided by

the Court to re-read the entire testimony, which was done. De-

fense counsel had argued that the deductions had to be included

on her copy given the duplicating process used by Mr. Ganie.

The Assistant U. S. Attorney maintained that his special agent

had seen a copy of the return and that the deductions were not

included. The Judge ordered the U. S. Attorney to obtain a copy

to determine the truth.

Meanwhile, the jury informed the court that they had

reached a verdict. Thus, the jury deliberated without the ben-

efit of the actual document. Subsequently, defense counsel was

informed by the U. S. Attorney that the document had been ob-

tained, and that the deductions were, in fact, included. The U. S.

Attorney, when asked by defense counsel about the special

agent's representation, claimed that he had misunderstood the

special agent and that he had merely been told by Mrs. Coleman

the deductions were not included.’

On this basis, the motion for a new trial was granted as to

the Coleman counts. As such, Mr. Ganie was sentenced to a

$1,000 fine on the Dominiak count.

Unfortunately, the record dves not reflect these events. However, the

affidavits submitted as part of the record on appeal suppert the facts as

stated herein.

P)

Reasons For GRANTING THE Writ

1 THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIR-

CUIT DENIED A CRIMINAL DEFENDANT'S

FEDERAL CONSTITUTIONAL RIGHT TO A

FAIR TRIAL IN) ACCORDANCE WITH DUE

PROCESS OF LAW IN CONFLICT WITH

OTHER FEDERAL COURT DECISIONS.

The re-reading of the false, though highly relevant testi-

mony to a jury where the jury specifically requested a ruling by

the Court of what the witness originally stated, such statements

in actuality being false, is in and of itself a denial of due process.

The United States Court of Appeals For the Third Circuit er-

roneously considered the appeal for a new trial as being one

based on newly discovered evidence (Appendix C). To the

contrary, the issue centers upon a jury requesting information

from the Court which, given as testified, contained false ma-

terial statements. Although the Court was unaware of the falsity

at the time of trial, the truth was, ironically, within the reach

of the Court and in the knowledge of the U. S. Attorney. (Mrs.

Coleman had her copy in her purse while testifying). Only

after the inquiries «f the jury did the issue of whether the

deductions were included on the witness's own copy became rele-

vant to the Court and to the attorneys involved. Only then was

the attempt made to obtain the copy itself.

The Court of Appeals is in conflict with the reasoning of three

cases decided in its own Third Circuit: United States v. Meyers,

484 F. 2d 113 (3d Cir. 1973); United States v. Rabb, 453 F.

2d 1012, (3d Cir. 1971); United States v. Jackson, 257 F. 2d

31 (3d Cir. 1958). In the United States v. Meyers, supra, the

Court of Appeals reversed the Federal District Court finding

that false testimony by a prosecution witness required that a

new trial be granted the defendant since such evidence was so

tainted, “that the conviction based on such testimony should not

be permitted to stand.” /d. at 117. The witness had testified

6

that a certain check was already endorsed by the defendant when

presented to him as bank teller by another and based on such

testimony, a handwri‘ing expert testified that that was the de-

fendant’s signature, thereby connecting the defendant to a con-

spiracy scheme of mail fraud. After the trial, and after a guilty

verdict was entered, the truth was discovered that the check had

not been endorsed at that time and that the witness had, in fact,

instructed a third person to sign the defendant's name. The

Court found that this was not really newly discovered evidence

Id. at 116, but rather a situation where a prosecution witness

falsely testified at trial. Here, the test is one espoused in Lar-

rison v. United States, 24 F. 2d 82, 87 (7th Cir. 1928):

“1. The Court is reasonably well satisfied that the testimony given by

a material witness is false; 2. That without it, a jury might have

reached a different conclusion; 3. That the party seeking the new

trial was taken by surprise when the false testimony was given and

was unable to meet it or did not know of its falsity until after

the trial.

Here, it is submitted that (1) the testimony is known to

have been false (2) the jury might have found otherwise (see

discussion imfra., Point 2 (3) The defendant was surprised

and unaware of the falsity until after the trial.* :

In Meyers, the Court could not even be sure of the part the

testimony played in jury deliberations, but here, however, it is

clear from the jury's request to know whether the witness stated

that it was or was not on her copy, that the jury focused their

attention on this one peculiar fact. It is contended that the actual

copy should have been supplied since the question of re-reading

the testimony was paramount, particularly where it was argued

by the defense that such testimony was false and maintained on

the other hand by the prosecution that it was true.

Re-reading testimony is done with caution as it, at times,

unduly emphasizes certain facts. The Third Circuit in United

States v. Jackson, supra., found that the jury was entitled to

“Unfortunately, the record does not reflect these events. However, the

record for the appeal contains affidavits supporting the facts as stated.

7

be informed of the information requested as a matter of right.

In that case, the jury, during the course of their deliberation,

asked the Court whether a witness, who was an informer, was a

government employee. The judge felt he was unable to answer

this question and, therefore, the jury was sent to resume de-

liberations without a response to their inquiry. Thereafter, ar-

guments ensued between defense counsel and the government's

counsel, with the judge finally deciding to read a portion of the

transcript which would show that the informer was, in fact, paid

by the government. However, before this information could be

relayed to the jury, the judge was notified that they had reached

a verdict. The judge asked whether they needed the answer to

their earlier question, and the foreman responded that they no

longer required such and thereby returned a guilty verdict. The

Court of Appeals in Jackson found the question posed by the

jury highly relevant. The issue of entrapment was essential in

this case, and, therefore, the question of whether the informer

Was a government employee was of major import. Jd. at 43.

The Third Circuit, thus failed to apply Jackson to the ex-

tent that the failure to submit the document itself to the jury

created an unfair and prejudicial result with respect to the de-

fendant’s case. The importance of responding to a jury's request

in the best possible way was highlighted in the United States v.

Rabb, supra. In this case, the jury requested testimony of the

three eyewitnesses be read. The Court of Appeals found that

such testimony was absolutely crucial to their jury's determina-

tion of the appellant's guilt or innocence in that this was the only

evidence linking the defendant to the crime. The Jackson and

Rabb decisions are important to support the petitioner's conten-

tion that the testimony of Sarah Coleman and the consideration

of the actual copy of her tax return was so crucial in the minds

of the jury in reaching an ultimate verdict that a denial of the

copy itself and merely the submission of the false testimony was

similar to not allowing a re-reading of crucial testimony as

found in these two cases.

2. THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIR-

CUIT WAS \ CONSIDERATION OF A FEDERAL

QUESTION NOT YET SETTLED BY THE

UNITED STATES SUPREME COURT.

This particular issue of false testimony has not been decided

by this Court although there are cases having some application

here. The line of cases following Mooney v. Holohan, 294 U. 3.

109 (1934); Mesarosh v. United States, 352 U. S. 1 (1956);

Napue v. Hlinois, 360 U. S. 264 (1938) with a most recent ap-

plication in DeMarco v. United States, 415 U. S. 449 (1974)

shed some light on the issue of false testimony. In Mooney

and Napue, the facts show that the prosecuting attorney had

knowledge that the evidence introduced was false at the time ot

trial.

In Mesarosh, the prosecutor later determined that the wit-

ness had a history of perjury and a psychologically induced habit

of not telling the truth. He, therefore, moved to have the Fed-

eral District Court conduct a hearing to determine that there was

other sufficient evidence to sustain the conviction. However,

the Court found that a new trial should be granted in favor of

the defendant rather than acceding to the procedure requested by

the prosecuting attorney. /d. at 13. It is noteworthy that the

Court found that a new trial be granted all the defendants since

the false testimony tainted the proceedings making it impossible

to discern if other evidence existed in the case to support a guilty

conviction.

Here, where the main witnesses were the tax clients of the

defendant who claimed to have no knowledge of “false” entries

on their tax returns yet admitted that they would tell the peti-

tioner what to enter on the forms; that they would review the

return with the petitioner; and would receive a photocopy some

months later, the question of credibility is great. The jury con-

victed the petitioner on three out of four counts, The First

Count involved one of the witnesses’ returns, whose testimony in

no way supported the offense alleged. The Second and Third

9

Counts involved the Coleman returns, (the Coleman testimony

contained the pertinent false statements.) The Fourth Count in-

volved the Dominiak return. Mr. Dominiak testified, speaking in

broken English, and insistently denied having told the petitioner

to enter a deduction for union dues. It should be noted that he

was extremely difficult to understand, and by his testimony, it

seems, had difficulty h'mself in understanding many of the ques-

tions.

The fact that the jury highlighted the Coleman testimony

regarding her own copy implies that the jury found a mode by

which the petitioner intentionally falsely filed the returns without

the individual client-witness’ knowledge, that is, by not showing

these deductions on the clients’ own copy, yet making such de-

ductions on the forms actually filed with the Internal Revenue

Service. This is completely and utterly erroneous as was clearly

shown to be so once the copy was retrieved. Of note is that the

U. S. Attorney never espoused such a theory and it was merely

by a stroke of fate that such a theory was so formulated.

It is the obligation of the Court system to now allow a new

trial to correct the tainted and polluted evidence that the jury is

now known to have considered. Based on the reasoning of

Mesarosh, it should be found here that a denial of due process

exists where false testimony is allowed to remain as the basis

of a conviction. If the jury, as it likely did, found that the

petitioner had worked out the method described as the means of

false filing, no one can now separate the tainted evidence from

the original verdict as to the Coleman counts and the Dominiak

Count (which was the final Count and probably last deliberated

one once the “guilty” verdict was reached on Coleman).

In Napue v. /llinois, supra., the prosecution's witness who

had been previously found guilty of murder and who was now

testifying against the defendant accused of the same murder

denied having been promised anything for his testimony. It was

later determined that he had been given promises and that the

prosecution had not stopped or clarified the false testimony dur-

ing the trial. It was contended by the state, throughout the ap-

peal for a new trial based on the realization that false testimony |

10

had been given, that this testimony was not, in fact, false but

rather that the time the promise was made was actually in dis-

pute. /d. at 267. Convictions obtained through false evidence

known to be false by a representative of the state falls under the

Fourteenth Amendment. See Mooney v. Holohan, supra.; Pyle

v. Kansas, 317 U.S. 213 (1940). The same result occurs when

the state, although not soliciting false evidence allows it to go

uncorrected when it appears. <lcorta v. Texas, 355 U. S. 28

(1959).

“The principle that a state may not knowingly use false evidence, includ-

ing false testimony, to obtain a tainted conviction, implicit in any concept

of ordered liberty, does not cease to apply merely because the false testi-

mony goes only to the credibility of the witness. The jury's estimate of

the truthfulness and reliability of a given witness may well be determina-

tive of guilt or innocence, it is upon such subtle factors as the possible in-

terest of the witness in testifying falsely that a defendant's life or liberty

may depend. Napue rv. Illinois, 360 U. 8. 264 at 269 (1958).”

It is not clear from the record that the United States At-

torney knew of the falsity, although it is arguable that he should

have known the true contents.*

It is contended here that in the light of the facts and the

state of the present law as formulated by the Federal Courts

that the decision regarding false testimony be extended here by

this Court to a situation where (1) it is not clear, the U. S. At-

torney did not know of its falsity, and (2) even if he was not

aware of the falsity, the resulting effect is a denial of due process

because of the essential pivotal question of intent and credibility

3The special agent for the U. S. Attorney's Office had access to Mrs. Cole-

man’s copy. As a matter of fact, Mrs. Coleman stated the following on cross

examination with reference to the special agent's investigation :

“They asked me if Mr. Ganie filed my income tax. I said, ‘yes’, and

he asked me could he see my ‘71 receipt and ‘72. I said, ‘yes, you

can see them.’ He said, ‘Do you mind going upstairs getting them for

me’ which I did, went up and got them. He looked them over. He said,

‘Thank you for your cooperation. What he was writing down, I don't

know. I didn't read what they wrote down. They didn’t show me what

they wrote down, just told me to sign it. Q. “Told you to sign the

statement? A. The statement they were there and they looked at my

receipts, the ‘71 and “72.”

11

which is the basis of the offense for which the petitioner has been

convicted.

DeMarco v. United States, 415 U. S. 449 (1974) again in-

volves the false testimony of a prosecution's witness who stated

that he had not been promised more favorable treatment by the

state for his testimony. The United States Court of Appeals had

found in this case that a promise had been made after the testi-

mony was given. This Court granted the Petition for Writ of

Certiorari finding that the fact question of when the promise

was made should be determined by the Federal District Court

and therefore remanded it to that Court vacating the Court of

Appeals decision. /d. at 450.

i2

3. THIS COURT HAS NOT SETTLED THE QUES-

TION OF WHETHER IT IS A DENIAL OF DUE

PROCESS TO ALLOW THE U.S. ATTORNEY TO

DISMISS A MAJOR PART OF A MULTIPLE

COUNT INDICTMENT INITIALLY PRESENTED

TO THE JURY, THE DISMISSAL OCCURRING

BEFORE THE ACTUAL TRIAL HAD COM-

MENCED.

The Court has settled the point that an amendment by a

Federal Court to an indictment returned by the Grand Jury is

in violation of the Fifth Amendment. E.r Parte Bain, 121 U. S.

1 (1886), Salinger v. United States, 272 U. S. 542 (1926).

It is not contended here that the dismissal of all but five counts

against Joseph Ganie of the original indictment consisting of

twenty-eight counts between Elinor and Joseph Ganie constitutes

an amendment and, therefore, these cases have no application.

This Court has also considered cases dealing with ‘vari-

ance’ that is where the evidence is at variance with the offenses

alleged in the indictment. The question of whether any existing

variance is prejudicial has been settled by this Court in the test

espoused in Berger v. United States, 295 U.S. 78 (1935). Vari-

ance would prejudice the case if the defendant is not adequately

informed of the charges against him, and (2) he is not protected

from being prosecuted again for the same offense. The petitioner

does not seek to apply this concept.

Rather, the petitioner contends that his constitutional right

of due process has been abridged since at the outset of the trial.

the government, through the Court, introduced to the jury the

indictment against Elinor and Joseph Ganie, charging them with

conspiracy with each other and others involving some fourteen

substantive counts against each defendant.

The jury so understood the government's case from the

time it was selected on June 18, 1974 until Friday, June 24,

1974 when the actual trial began. At that time the Court made

a brief statement to the jury indicating that the government

had dismissed all counts against Mrs. Ganie and had dismissed

13

Counts One, Six, Seven, Eight, Nine, Ten, Eleven, Thirteen and

Fourteen against Joseph Ganie leaving for the jury's considera-

tion, five counts, Counts Two, Three, Four, Five and Twelve.

No explanation was offered to the jury as to why the

charges were dismissed. Moreover, at the conclusion of the gov-

ernment’s case, the Court indicated out of the presence of the

jury, that it would dismiss one more count of the indictment

since the government's proofs were obviously inadequate to sup-

port this count as well. The jury was not informed of this

fact until sometime after the defendant took the stand in his

own defense. gain, no explanation was given for this action.

The Court did, however, in its general instruction, correctly state

the fact that no inferences were permitted to be drawn from

an indictment. It should be noted, however, that the Court did

not instruct the jury as to the inferences permitted from the

dismissal of the aforementioned charges.

It is recognized that it has been customary for defendants

charged in multiple-count indictments to plead to one or more

of the counts and have the Court dismiss the remaining. Mc-

Clintock v. United States, 60 F. 2d 839 (10th Cir. 1932); Gun-

ville v. United States, 386 F. 2d 186 (8th Cir. 1967), See Al-

schuler, The Prosecutor's Role in Plea Bargaining, 36 U. Chi.

L. R. 50 (1968). However, it is submitted that a jury might

easily infer from a long list of accusations followed by a trial

only on a few, that the government generously and gratuitously

acting on its own initiative, dismissed charges even though the

defendant was probably guilty of most or all of these offenses

as well, but that the government would not involve everyone

with the expense and time of a long, intricate trial. Rather,

it would present and be satisfied with a conviction of only a few

charges.

This element proved to be highly prejudicial, particularly

with the indictment against the petitioner. The form of the in-

dictment is similar to a litany in which most of the Fourteen

Counts were identical, generally dissimilar only regarding the in-

dividuals involved. Thus, the natural inclination of the jury

would be to believe that the petitioner had done something wrong

heing accused of doing the same thing fourteen different times.

14

CONCLUSION

It is respectfully submitted that for the foregoing reasons,

the petitioner be granted his Petition for Writ of Certiorari.

Respectfully submitted,

We ' at PE K ‘Sr Chan

OCKMAN

Attorney for Petitioner

15

IN THE

November Term of 1975

No.

JosepH GANIE,

Petitioner,

Vs.

Unitrep STATES OF AMERICA,

Respondent.

Certificate of Service

I, Gerald R. Stockman, Attorney for Petitioner, Josern

GANIE, do hereby certify that on this, the 5th day of November,

1975, three copies of the foregoing Petition for a Writ of Cer-

tiorari have been served on the following:

Solicitor General

Department of Justice

Washington, D. C. 20530

Attorney of record for the Respondents by personal service to

the office of the above named.

~~ £2

ee J

“r- * 4a

GERALD R. STOCKMAN

16

A-l

APPENDIX A

Verdict Rendered in Federal District Court

of New Jersey

THE COURT: That is all, ladies and gentlemen. You may

return now and resume your deliberation.

(The jury left the courtroom at 1:55 P.M.)

(The following occurred at 3:00 P.M.)

(The jury entered the courtroom)

(Defendant present )

(Roll call of the jury)

THE CLERK: Ladies and gentlemen of the jury, have

you agreed upon your verdict?

THE JURY: Yes.

THE CLERK: Who shall speak for you?

THE JURY: The Forelady.

THE CLERK: Please rise.

Is the verdict unanimous ?

THE FORELADY: Yes.

THE CLERK: Do you find the defendant guilty or not

guilty on Count 1?

THE FORELADY: Not guilty.

THE CLERK: Do you find the defendant guilty or not

guilty on Count 2?

THE FORELADY. I don't know which one you are talk-

ing about, Count 2 in the indictment? For the first one, Burgos.

Coleman is guilty.

THE CLERK: Do you find the defendant guilty or not

guilty on Count 3?

THE FORELADY: Guilty.

THE CLERK: Do you find the defendant guilty or not

guilty on Count 4+?

THE FORELADY: Guilty.

A-2

THE CLERK: Ladies and gentlemen of the jury, hearken

to your verdict as the Court shall order it recorded.

You say you find the defendant not guilty on Count 1;

guilty on Count 2; guilty on Count 3; and guilty on Count 4,

and so say you all?

THE COURT: Poll the jury, please.

(The jury was polled)

B-1

APPENDIX B

Order of Federal District Court of New Jersey

Granting New Trial Counts II and III and Denying

New Trial Count IV

For THe Distaicrt or New Jersey

Criminal No: 192-73

UNITED STATES OF AMERICA =:

v.

JOSEPH GANIE AND ELINOR

GANIE, : ORDER

Defendants. :

This matter being opened to the Court by Dietrich, Stock-

man & Lake, P. A., substituted attorneys of record for the de-

fendants, Gerald R. Stockman, Esq., appearing, and the United

States of America being represented by the United States At-

torney’s Office, Richard T. Philips, Esq., Assistant United States

Attorney appearing, and the Court having examined the moving

papers and heard oral argument;

[T IS on this 2nd day of Dec., 1974+, ORDERED that in

accordance with Rule 33 of the Federal Rules of Criminal Pro-

cedure, the defendant Joseph Ganie, be granted a new trial on

Count II and III of the Amended Indictment (the Counts in-

volving Sarah Coleman's tax returns), and

It is FURTHER ORDERED that the defendant's motion

for a new trial as to his conviction of the Fourth Count of the

Indictment (the Ludwik Dominiak’s tax return) is denied, and

judgment of conviction is entered thereon.

/s/ Grorce H. Bartow, JUSDC

We hereby consent to the form of the within Order.

JONATHAN L. GOLDSTEIN

U. S. Attorney

Attorney for U. S. of America

By: /s/ Richard T. Philips

C-1

APPENDIX C

Opinion and Judgment of United States Court of Appeals

For The Third Circuit

Un itep States Court or APPEALS

For Tue Tuirp Circuit

No. 75-1461

UNITED STATES OF AMERICA

v.

JoseEpH GANIE and

ELINOR GANIE

JosepH Ganire, Appellant

(D. C. Criminal No, 192-73)

APPEAL From THe UnNttrep States District Court

For Tue District or New JERSEY

Submitted under 3rd Cir. Rule 12(6) October 3, 1975

Before Maris. Van Dusen and HuNTER,

Circuit Judges

Gerald R. Stockman, Esq., Dietrich,

Stockman, & Lake, P. A., Trenton, N. J..

Attorneys for Appellant

Jonathan L. Goldstein, U. S. Attorney;

Maryanne T. Desmond, Assistant U. S.

Attorney; Newark, N. J.

Attorneys tor Appellee

C-2

Judgment Order

After considering the contentions raised by appellant that

(a) in the interest of justice, a new trial should be granted on

the entire verdict due to erroneous and misleading testimony

reread to the jury, causing an unfair and prejudicial result to

follow,’ and (b) the totality of the circumstances surrounding

the trial denied the appellant his right to a fair trial,? it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

By Tue Court:

Van Dusen

Circuit Judge

Dated: Oct. 6, 1975

Attest:

Thomas F. Quinn

Tuomas F. Quinn, Clerk

ISee United States v. Meyers, 484 F. 2d 113, 116 (3d Cir. 1973) ; 2 Wright,

Federal Practice and Procedure — Criminal § 551, at p. 482 (1969).

2Compare Sheppard v. Marwell, 384 U. *. 333, 352-55 (1966), with the

defendant's version of the facts in the instant case.

D-1

APPENDIX D

Constitutional and Statutory Provisions

AMENDMENT 5

No person shall be held to answer for a capital, or other-

Wise infamous crime, unless on a presentment or indictment of

a Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same of-

fence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use, with-

out just compensation.

26 U. S. C. 7206(2) — Fraud and False Statements

Aid or assistance. Willfully aids or assists in, or procures,

counsels, or advises the preparation or presentation under, or

in connection with any matter arising under, the internal revenue

laws, of a return, affidavit, claim, or other document, which is

fraudulent or is false as to any material matter, whether or not

such falsity or fraud is with the knowledge or consent of the

person authorized or required to present such return, affidavit,

claim or document,