Petition — Senak v. United States

) MICHAEL RODAK, JR..CLERK

3u the

Supreme Court of the Rnited States

Ocroszr Term, 1975

NICK SENAK,

Petitioner,

vB.

UNITED STATES OF AMERIOA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MAX COHEN

504 Broadway

Gary, Indiana 46402

Ph: (219) 886-3505

Attorney for Petitioner

Oe

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

ERNEST > OF 20R NS SO 1

EV ee a om wines 2

PRET Sree a 2

aac a reecglciaeeaaticabinddateil 3

Constitutional provisions involved ...............-..es-s-es-seeseeee 4

ND TE ND | dicceattsieicienerveniiiesicisecrteneiteniitrteniteenne ' 5

Reasons for granting the Writ) 2...........2....:ccsccccsesceseeeees 9

A. The petitioner was not acting under color of law.. 9

B. The convictions are an unconstitutional application

— @ fF enone beciients 13

Se Ty ED : naereetnninemeenaamnin 13

The Gilarski Count ...................... 13

C. The admission of the statement as past recollection

DIII ceiinccttnncesesensntnnicccsinetinnnsiens mo =

D. Prejudicial argument by the government ................ 16

III secnsccseinsseiiponceiceciniesinieenes a ' 18

Appendix A—Opinion of the Court of Appeals for

the Seventh Circuit entered on October 23, 1975 .. App. 1

Appendix B—Indictment returned by Grand Jury

III, GEIIIED shisiticiicsiinsiciciainatcnitepintegpeniciuniinninasseees App. 42

Appendix C—Order denying Petition for Rehearing

een eae App. 47

ii

AUTHORITIES CITED

Cases

PAGE

Brown v. Duggan, (D.C. Pa 1971) 329 F. Supp. 207 ..... 12

Brown v. Joseph, 463 F. 2d 1046 (3rd Cir, 1972) ...... 11, 12

Dyer v. Rosenberg, 434 F. 2d 648 (9th Cir, 1970) ........ 12

Espinoza v. Rogers, 470 F, 2d 1174 (10th Cir, 1972) ... 9

Fletcher v. Hook, 446 F. 2d 14 (3rd Cir, 1971) .......... 12

French v. Corrigan, 432 F. 2d 1211 (7th Cir. 1970) ... 11

Jones v. Jones, 410 F’. 2d 365 (7th Cir. 1969) .............. ll

Mulligan v. Schlachter, 389 F’, 2d 231 (6th Cir. 1968) .. 12

Nelson v. Stratton, 469 F.2d 1155 (5th Cir. 1972) ...... 10

Obrien v. Colbath, 465 F. 2d 358 (1972)... eee 10

Szijarto v. Legeman, 466 I, 2d 864 (9th Cir. 1972) ...... 10

U. S. v. MeCarthy, 445 F. 2d 587 (7th Cir. 1971) ........ 15

Other Authorities

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£ ££ SS . £2 FY § aes =

Iu the

Supreme Court of the United States

OctToser ‘Term, 1975

No.

NICK S”NAK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

| Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit

entered in this proceeding on October 23, 1975. A petition

for rehearing was timely filed and denied on November

25, 1975.

OPINION BELOW

The opinion of the Court of Appeals, as yet unreported,

appears at Appendix A.

2

JURISDICTION

The judgment of the United States Court of Appeals

fer the Seventh Circuit was entered on October 23, 1975.

A timely petition for rehearing was filed and denied on

November 25, 1975. The order denying the petition for

rehearing appears as Appendix C. The jurisdiction of this

Court is invoked under 28 U.S.C, 1254(1).

QUESTIONS PRESENTED

In February, 1972, a Federal grand jury returned a five

count indictment against the petitioner, a public defender

for Lake County, Indiana. The indictment charged that

the petitioner, while acting under color of law, willfully

and unlawfully exacted and took money from various per-

sons, thereby willfully depriving those persons of their

right under the Fourteenth Amendment, not to be deprived

of property without due process of law, in violation of 18

U.S.C. 242. The pertinent part of that statute provides as

follows:

‘‘Whoever, under color of any law, statute, ordinance,

regulation or custom, willfully subjects any inhabitant

of any State, territory or district, to the deprivation

of any rights, privileges or immunities, secured or pro-

tected by the Constitution or laws of the United

States ...’’ (is guilty of an offense)

The indicts 2nt is reproduced as Appendix B. Prior to

trial, one count was dismissed. At the close of the Govern-

ment’s case in chief, a motion for judgment of acquittal

was sustained as to another count and, of the three counts

that were submitted to the jury, the jury found the peti-

tioner guilty of two counts and not guilty of one.

The counts were submitted to the jury and those of

which the petitioner was found guilty charge the petitioner

that, notwithstanding his appointment under Indiana law

3

as a pauper attorney, the petitioner exacted fees from a

friend and relative of persons he had been appointed to

represent by threatening inadequate legal representation

unless extra sums were paid to him. The questions pre-

sented are:

1. Is a pauper attorney, by virtue of his appoint-

ment to represent an indigent client, acting under

color of State law so as to be subject to the provi-

sions of 18 U.S.C. 242?

2. Does a pauper attorney who allegedly threatens

inadequate legal representation of persons he has

been appointed to defend unless he is paid a fee

by a relative or friend of those persons, deprive

those persons who pay him such money of prop-

erty without due process of law?

3. Does the admission of a witness’ statement as

past recollection recorded made three years after

the event constitute reversible error?

~-

Was the argument of Government’s counsel so

prejudicial as to necessitate the grant of a new

trial?

STATUTES INVOLVED

The statutes involved are as follows:

Burns’ Ind. Stat. 4-5716, Vol. 2, Part 4, 1968 Replace-

ment which provides as follows:

‘*Public defenders—authority to appoint—recovery

for services—The Judge of the Criminal Court or any

division thereof in the counties having a population of

400,000 or more according to the last preceding United

States census in which a separate criminal court is

established is hereby authorized to appoint one or

+

more public defenders as he may deem necessary to

defend any poor person accused of the commission of

a crime and not having sufficient means to employ an

attorney at law to defend himself or herself: provid-

ed, however, that the county attorney shall bring suit

on behalf of the county at the request of the judge of

said court or any division thereof for recovery of a

reasonable sum for the service of the public defend r

rendered on behalf of any such poor person whenever

it appears to the Court that said person has sufficient

means to employ an attorney. All amounts so recov-

ered shall be paid into the county general fund.’’

18 U.S.C. 242 provides as follows:

‘Whoever, under color of any law, statute ... wilfully

subjects any inhabitant of any State, territory or dis-

trict, to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution

or laws of the United States . . . shall be fined not

more than one thousand dollars or imprisoned not

more than one year or both.. .’’

42 U.S.C. 1983 provides as follows:

‘*Every person who, under color of any statute, ordi-

nance, regulation, custom or usage of any State or terri-

tory, subjects or causes to be subjected any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privi-

leges or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action

at law, suit in equity or other proper proceeding for

redress.’’

CONSTITUTIONAL PROVISIONS INVOLVED.

Amendment Ten, Rights reserved to States or people—

The powers not delegated to the United States by the Con-

stitution, nor prohibited by it to the States, are reserved

to the States respectively or to the people.

5

STATEMENT OF FACTS

On May 7, 1971, an indictment was returned against the

petitioner in the United States District Court for the

Northern District of Indiana charging him in five counts

with violation of Title 18 U.S.C. Sec. 242. A motion to

dismiss was addressed to the indictment and, on October

19, 1971, the District Court entered an order sustaining

the motion.

The Government initiated an appeal but subsequently

abandoned it. On February 10, 1972, an indictment was

returned charging the petitioner with the same five counts

in the original indictment; the phrasing of each count of

the indictment was charged by charging that the petitioner

wilfully and unlawfully exacted money from the persons

named in each count of the indictment.

A second motion to dismiss was addressed to the in-

dictment and, on March 27, 1972, the motion was sustained

and that indictment was also dismissed. The Government

appealed and, on April 24, 1973, the Court of Appeals

reversed and re-instated the indictment. U.S. v. Senak

(19732) 477 F. 2d 304, Cert. denied 94 S. Ct. 157, 414 U.S.

856.

Trial by jury commenced on October 7, 1974, and was

concluded on October 10, 1974. Prior to the commence-

ment of the trial, the Government dismissed one count of

the indictment. At the conclusion of the Government’s

ease in chief, the Court sustained a motion for judgment

of acquittal as to another count of the indictment. The

three remaining counts were submitted to the jury and the

jury returned a verdict finding the defendant guilty of two

counts and not guilty of one count. The defendant was

sentenced to a term of imprisonment of sixty days on each

6

count and fined One Thousand ($1,000.00) Dollars on each

count; the imprisonment to run concurrently and the fines

cumulative.

Count IV of the indictment named Honore Gilarski as

a person who was unlawfully deprived of property without

due process of law by the defendant. The defendant repre-

sented a friend of hers, Laposi, in two matters in the crim-

inal court wherein he was charged with rape and assault

and battery with intent to gratify sexual desires. Laposi

had directed Gilarski to contact the defendant; she did not

know he was a pauper attorney. After testifying briefly

about a telephone conversation she had with the defendant

where the defendant told her that Laposi didn’t have much

of a chance but that if she came up with some money he

would have a better chance, she was unable to recall any

further conversation that took place between them.

She had been interviewed by two F.B.I. Agents on Feb-

ruary 11, 1971, almost three years after the events took

place between herself and the defendant. The interview

lasted for about two hours and, at the conclusion of the

interview, she was handed a two page statement which she

signed. During the course of her testimony, she was per-

mitted to review the statement to refresh her recollection

and, after examining the statement, it did not refresh her

recollection. The Government then moved to admit the

statement as past recollection recorded. After vigorous

objection and considerable colloquy between the Court and

counsel, the statement was admitted, read to the jury and,

when the jury retired to deliberate, the statement was

given to them along with all the other exhibits.

The statement recited that the defendant called her and

asked her to pay Five hundred ($500.00) Dollars to de-

7

fend Laposi, sometime in the Spring of 1968; she made the

payment of Three Hundred ($300.00) Dollars to him on

May 29, 1968, and was to pay the remainder before trial;

the defendant, at no time, guaranteed the payment would

get Laposi off but that Laposi didn’t have a chance if she

didn’t pay him; in June of 1968, she paid the defendant

an additional Two hundred fifty ($250.00) Dollars; Laposi

was found not guilty. At that time, following the bench

trial, defendant asked her for an additional Seven hundred

($700.00) Dollars for the other charge and told her that

the money was to be split between a couple of other people.

She could only pay about Three hundred fifty ($350.00)

Dollars and the charges for the second trial were dropped

because of the failure of the prosecution witnesses to ap-

pear. In neither case was Judge McKenna presiding.

During the cross-examination of the defendant, the

Government was permitted, over objection, to allude to a

criminal tax fraud investigation of the defendant and to

develop specific instances where he had failed to report

income. The instances where he had failed to report in-

come were not the subjects of the indictment. The income

involved in one instance was One hundred ($100.00) Dol-

lars and the income involved in another instance was Nine

hundred ($900.00) Dollars. The investigation did not re-

sult in an indictment. The defendant had agreed to a de-

ficiency for the years in question.

To offset the unfavorable inference that this line of

questioning developed, the defendant on re-direct exam-

ination testified that he had voluntarily turned over all of

his books and records to the Internal Revenue Service,

had answered all questions put to him by the agents, and

had cooperated fully with the agents of the Internal Rev-

enue Service. He further testified that as a criminal de-

8

fense lawyer he knew he had the right to withhold such

information and would not have turned over his books and

records if he knew that he had wilfully misrepresented

or understated his income.

In the final argument, the Government, in its opening,

adverted generally to the evidence of guilt and referred to

the parade of character witnesses and stated

‘‘Those witnesses did not look at Nick Senak’s tax

recurns or did not talk to his clients.’’

Defense counsel, in his summation, commented that the

conduct of the defendant in cooperating fully with the

Internal Revenue Service by turning over his books and

records and by making statements negated any wrong-

doing, particularly since as a criminal defense lawyer he

knew he had the right to withhold such information. In

the Government’s closing argument, Government counsel

commented again that the defendant failed to report his

fees and that the defendant’s conduct in turning over his

books and records and being cooperative with the Internal

Revenue Service was meaningless since the defendant

knew the information could be obtained by subpoena, that

this showed guilty knowledge.

Strenuous objection was interposed by the defendant on

two occasions. The Court not only denied the objection on

each occasion, but added gratuitously that defense coun-

sel’s comment was erroneous.

re

REASONS FOR GRANTING THE WRIT

A.

THE ' £TITIONER WAS NOT ACTING UNDER COLOR

OF LAW.

The petitioner was not charged with denying any client

he had been appointed to represent the effective assistance

of counsel. When the case was finally submitted to the

jury, the persons who were the alleged victims of his mis-

conduct were not persons he had been appointed to repre-

sent but friends or relatives of persons he had been ap-

pointed to represent.

This case marks the first time that any pauper attorney

has been charged under Sec. 242 in this manner. There

have, however, been a number of cases brought under the

provisions of 42 U.S.C. 1983, the civil counterpart of Sec.

242, and which is in pari materia with Sec. 242. Those

cases have expressly and unequivocally held that a pauper

attorney is not acting under color of law so as to be subject

to a civil action for deprivation of rights.

In Espinoza v. Rogers, 470 F. 2d 1174 (10th Cir. 1972),

an action was brought under 42 U.S.C. 1983, against the

defendants in their capacities as attorneys for the Colo-

rado Public Defender’s Office. The plaintiff claimed that

he was denied due process and equal protection of the laws

because the defendants had grossly mishandled his de-

fense.

In a per curiam opinion, the Court of Appeals held:

‘<Tt is well settled that in order for a defendant to be

liable under the Federal Civil Rights Act he must have

acted under color of State law to cause the denial of a

10

federally protected right. The Colorado Office of State

Public Defender derives its existence from Colorado

statutes. These statutes in no way attempt to control

or otherwise influence the professional judgment of a

lawyer employed as a public defender. Additionally,

a Coloradu Public Defender’s professional duties and

responsibility towards his clients are identical in all

respects to any other Colorado attorney, whether pri-

vately retained or court-appointed. Therefore, we

hold that an attorney does not act under color of State

law simply because he has accepted employment as a

Colorado Public Defender ...’’ (At Page 1174, 1175)

The Court of Appeals for the Fifth Circuit has held to the

same effect in Obrien v. Colbath, 465 F. 2d 358 (1972)

stating:

‘« |. In our opinion (Sec. 1983) was never intended

as a vehicle for prosecuting malpractice suits against

court-appointed attorneys ...’’ (at Page 1155, See

also Nelson v. Stratton, 469 F.2d 1155, 5th Cir. 1972)

(Civil Rights Action against privately retained at-

torney dismissed on ground that attorney was not act-

ing under color of State law).

In Szijarto v. Legeman, 466 F. 2d 864, (9th Cir. 1972)

the Court of Appeals upheld a dismissal of a civil rights

action brought under Sec. 1983 against the plaintiff’s re-

tained attorney for alleged failure to render him reason-

able assistance during the course of a State criminal trial.

In a per curiam opinion, the Court stated:

‘‘That this cireuit, in common with others, has held

that such a claim is not within the purview of the

Civil Rights Act. The reason being that an attorney

whether retained or appointed does not act under

color of State law; hence, the claim is not one coming

within the jurisdiction of the District Court.’’ (our

emphasis)

11

The Court of Appeals for the Seventh Cireuit has held

that a court-appointed lawyer is not acting under color

of State law so as to be responsive in a suit for damages

brought under Sec. 1983, French v. Corrigan, 432 F. 2d

1211 (7th Cir. 1970), stating:

‘¢. . . Just as the prosecutors did not lose their im-

munity by reason of the alleged conspiracy, neither

were the acts of Corrigan done under color of law.

They were appointed by the trial judge to represent

plaintiff on his requested appeal, they were not func-

tionaries of the State, they were proceeding in their

private capacity acting on plaintiff’s behalf. . .’’ (at

page 1214)

In Jones v. Jones, 410 F. 2d 365 (7th Cir. 1969), the

Court of Appeals upheld an order dismissing the plain-

tiff’s complaint in a civil rights action brought under See.

1983, brought by the plaintiff against his counsel in a

criminal proceeding stating:

‘*. . . Lawyers who are not also parties in interest

and are engaged in private litigation on behalf of

clients do not act under color of State law within the

meaning of 42 U.S.C. 1983 ... The State merely pro-

vides a forum for the litigants and, although lawyers

are considered officers of the Court, they are not of-

ficers of the State within the meaning of the Civil

Rights Act. ..’’

In Brown v. Joseph, 463 F. 2d 1046, (3rd Cir. 1972) the

Court of Appeals upheld the dismissal of a civil rights

action by a former client against a court-appointed trial

attorney employed by the public defender’s office of Penn-

sylvania County. The basis of the decision was twofold:

(1) That a private attorney is not a State officer so as to

12

bring his actions within the purview of the Civil Rights

Statute; and (2) That a county public defender whose

office is created under State statute enjoys immunity from

liability under the Civil Rights Act, even if he was acting

under color of State law.

In Brown v. Joseph, the public defender argued that,

once his appointment in a given case is made, his public

or State function ceases and that thereafter he functions

purely as a private attorney; that his professional rela-

tionship with his client takes on all the incidents and con-

siderations attendant upon a private attorney-client rela-

tionship; that every aspect of his professional relationship

to his client within the framework of ethical representa-

tion thereof which conceivably could form the subject mat-

ter of a claim under 1983 is performed by him not as a

representative of the State under color of State law but in

the context of a private practitioner.

Although the Court of Appeals for the Third Circuit

did not rest its decision upon this contention (preferring

to rest it upon the immunity ground), it noted that the

argument had considerable persuasion. (at Page 1047)

Other cases holding that an attorney is not acting under

color of State law, whether retained or appointed, are:

Dyer v. Rosenberg, 434 F. 2d 648, (9th Cir. 1970) ; Fletch-

er v. Hook, 446 F. 2d 14 (8rd Cir. 1971); Mulligan v.

Schlachter, 389 F. 2d 231 (6th Cir. 1968); Brown v. Dug-

gan, (D.C. Pa 1971) 329 F. Supp. 207.

13

THE CONVICTIONS ARE AN UNCONSTITUTIONAL

APPLICATION OF 18 U.S.C. 242.

The facts adduced to sustain the convictions on the two

counts were as follows:

The Cadle Count

The defendant had been appointed to represent Cadle

on a charge of assault and battery with intent to kill.

After his appointment, he was contacted by Cadle’s son

who had come from Detroit, Michigan for the express

purpose of contributing to his father’s defense. At the

time he contacted Senak, he did not know Senak was a

public defender. Senak told Cadle’s son that, if he paid

him Five hundred ($500.00) Dollars, he would see to it

that his father went to a hospital, otherwise he would go to

jail. Cadle’s son paid Senak One hundred ($100.00) Dol-

lars. Senak then withdrew his appearance as pauper coun-

sel and appeared as private counsel. Cadle ultimately en-

tered a plea of guilty to a lesser charge of aggravated

assault and battery and was sentenced to a term of im-

prisonment of one (1) to five (5) years. Cadle’s son did

not pay Senak anymore money.

The Gilarski Count

Miss Gilarski was a friend of Steve Laposi who was

charged in the Lake Criminal Court with assault and

battery with intent to gratify sexual desires and rape.

Senak had been appointed to represent Laposi in the as-

sault and battery with intent to gratify case. Gilarski, at

Laposi’s direction, contacted Senak. She did not know he

was a pauper attorney. Senak told her that, if she hired

him, Laposi would have a better chance but that he

couldn’t guarantee that payment to him would get Laposi

14

off. She paid Senak various sums of money, at one time

three Hundred ($300.00) Dollars, and another time an ad-

ditional Two hundred fifty ($250.00) Dollars. Senak with-

drew his appearance as pauper attorney and appeared as

private counsel in the assault and battery with intent to

gratify case. The case was tried and Laposi was acquitted.

In the rape case, where Senak had never appeared as

pauper counsel but always as private counsel, the case

was dismissed for want of prosecution.

The uncontradicted evidence was that Senak was author-

ized to accept money from friends or relatives of persons

he had been appointed to represent and to appear as pri-

vate counsel on their behalf. This practice had been in

effect for forty years in the Lake Criminal Court. Senak,

during his tenure as public defender, was paid a maximum

compensation of Ten thousand ($10,000.00) dollars per

year. He was appointed in as many as two hundred and

fifty (250) felony cases per year.

The statute under which Senak was appointed, Burns

4-5716, expressly provides that only poor persons are en-

titled to the appointment of a public defender. If it

appears that a poor person has funds to pay for counsel,

the county attorney is to sue for recovery of a reasonable

sum for the services rendered by the public defender and

the sums so recovered go into the General County “nd.

Neither Gilarski or Cadle were under any legal obligu-

tion to pay the sums of money to Senak. It is clear that, if

Cadle or Gilarski had initiated an action under 42 U.S.C.

1983 against Senak alleging deprivation of property with-

out due process of law, that action would fail, since, in his

relationship with Cadle and Gilarski, he was not acting

under color of law but merely as a private attorney.

The language of Sec. 242 has been expanded to the point

of absurdity in an attempt to authorize this conviction.

oe

15

If upheld, it would permit the Government to prosecute

any State appointed or elected official for any breach of

his duties; it would effectively nullify the provisions of

the Tenth Amendment to the Constitution in that there

would be virtually no police powers reserved to the States.

C.

THE ADMISSION OF THE STATEMENT AS PAST

RECOLLECTION RECORDED.

The opinion of the Court of Appeals concedes that there

are no cases where a statement admitted as past recollec-

tion recorded was made as long as three years after the

event. (Opinion p. 18)

The opinion of the Court of Appeals also concedes that

there was sufficient additional incriminatory information

in the statement that it could scarcely say that it did not

add to the Government’s case. (Opinion p. 13)

That incriminatory information was devastating; it

suggested that Senak was extorting money from Gilarski

for the purpose of paying off someone to achieve a desired

result. The exhibit was not only read to the jury, but when

the jury retired to deliberate the statement went into the

jury room.

The admission of the statement was in direct violation

of Rule 803 (5) of the Federal Rules of Evidence. A\l-

though those rules did not become effective until July

1, 1975, the Seventh Circuit Court of Appeals had, in U.S.

v. McCarthy, 445 F.2d 587, 591 (7th Cir. 1971) expressed

the belief that the proposed rules should be used by the

District Courts as guidelines and at least given considera-

tion in the exercise of their discretion in making eviden-

tiary rulings. (Opinion P. 12)

16

The opinion of the Court of Appeals establishes a star-

tling precedent by stating

‘*. |. The fact that there is no rule other than the

credibility scrutiny of the trier of fact, which cur-

tails the lapse of time applicable to the live witness

on the stand, would suggest that we should not ar-

bitrarily say any given length of time is too long for

the statement-giver to have an accurate memory and

for a proper application of the past recollection re-

corded procedure.’’ (Opinion p. 18)

D.

PREJUDICIAL ARGUMENT BY THE GOVERNMENT.

By the time this case was submitted to the jury, it was

not clear whether the defendant was being tried for viola-

tion of the Civil Rights Statute or for income tax evasion.

At every conceivable opportunity, beginning with the cross-

examination of Judge McKenna, continuing with the cross-

examination of the defendant and culminating in the final

argument, the Government attempted to tarnish Senak

with the suggestion of income tax evasion.

In his concurring opinion, Chief Judge Fairchild viewed

the cross-examination of Judge McKenna

‘* .. as the type of questionable conduct Government

counsel should avoid .. . this seems to me gossamer

covering for the prosecutor’s real hope that the jury

will view the witness less favorably because he was

charged, though not convicted, with income tax eva-

sion.’’ (Opinion p. 34)

The opinion of the Court of Appeals does not find the

remarks made by Government counsel so prejudicial as to

necessitate reversal, primarily because

‘*. . . The comment anent the subpoena was the cul-

mination of the opening defense gambit that Senak

did not require a subpoena to produce his records.’’

(Opinion, p. 9)

on > ep eEEe een eer mEE ern

17

This observation ignores the fact that it was the Gov-

ernment which first injected the income tax issue into the

trial of the case. The cross-examination of Judge McKen-

ne has already been alluded to. The defendant Senak was

vigorously cross-examined on his income tax returns and

the Government was permitted to show, over constant ob-

jection, that Senak had failed to report One hundred

($100.00) Dollars of his income in one case and Nine hun-

dred ($900.00) Dollars in another case. Those matters

in which he failed to report that income were not subjects

of the indictment.

The brief of the defendant filed in the Court of Appeals

sets out an unbroken line of authority which holds that a

taxpayer under criminal investigation is not required to

produce his books and records in the face of a subpoena

if he asserts the privilege against self-incrimination.

(brief of petitioner, p. 16-20)

The cumulative impact necessarily left the jury with the

impression that the defendant had wilfully understated

his income and that his conduct in voluntarily cooperating

with the Internal Revenue Service was a sham and sub-

terfuge. The Government made the most of the erroneous

ruling by the Court by commenting to the jury

‘« .. That, Ladies and Gentlemen, shows guilty know]l-

edge. That’s exactly what it shows... .’’ (R. 829)

The opinion of the Court of Appeals on this issue states

‘* All that the prosecutor said was that if one doesn’t

hand over the records he wili be handed a subpoena.

We do not agree with the defendant that this ncessari-

ly implies more than it says, i.e. that he would have

had to comply with a subpoena or summons. . .’’

(Opinion, p. 9)

18

This interpretation is semantically unrealistic.

The legal definition of a subpoena is almost identical to

the lay definition of a subpoena. A subpoena is defined in

Webster’s New Collegiate Dictionary 1974 as from the

Latin sub poena under penalty; a writ commanding a

person designated in it to appear in court under a penalty

for failure.

If all the Government prosecutor intended to convey to

the jury was that if Senak were handed a subpoena and

all that Senak would have been required to do would be to

comply with the subpoena and show up, it would have been

a simple matter for him to so state. What the Government

prosecutor attempted to convey to the jury and necessarily

did convey to the jury was that Senak, after having been

handed the subpoena, would have been required to produce

his books and records. In the light of the Government’s

final comment, that such conduct showed guilty knowledge,

any other interpretation is patently unrealistic.

CONCLUSION

To permit this conviction to stand would enable the

Government to act as national policemen in every con-

ceivable area of alleged criminal activity. The judicial im-

pact of the opinion of the Court of Appeals will have far-

reaching consequences. Local law enforcement agencies

and bar associations are more appropriate forums to ex-

amine the transgressions in this particular case.

Respectfully submitted,

Max CoHEN

Attorney for Petitioner

APPENDIX

APPENDIX A

in the

United States Court of Appeals

For the Seventh Cirruit

No. 74-1965

Unrtep States or AMERICA,

Plaintiff-A ppellee,

v.

Nick SEenak,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division

No. 73-S-CR-39

Rosert A. Grant, Judge.

Argued June 10, 1975—Decided October 23, 1975

Before Cuark, Associate Justice,* Farrcuitp, Chief

Judge, and Peuu, Circuit Judge.

Pew, Circuit Judge. The defendant, Nick Senak, a law-

yer, was charged with violation of 18 U.S.C. § 242 in a

five count indictment. The indictment in substance charged

Senak with having used his office as pauper attorney of

the Lake County, Indiana, Criminal Court to exact sums of

*Associate Justice Tom C. Clark (Retired) of the Supreme Court

of the United States is sitting by designation.

App. 2

money from a person he had been appointed to represent

(Count I) and from relatives and friends of persons he

had been appointed to represent (Counts II-V) by stat-

ing to such persons that he would not adequately rep-

resent the persons he had been appointed to represent

unless he were paid amounts in addition to his salary;

that this conduct deprived those persons of property with-

out due process. On motion of the defendant the indict-

ment was dismissed. The judgment of dismissal was re-

versed by this court and the case was remanded for fur-

ther proceedings. United States v. Senak, 477 F.2d 304

(7th Cir. 1973), cert. denied, 414 U.S. 856. At the trial

which followed, Count V was dismissed on motion of the

Government on the morning of trial. At the conclusion

of the Government’s evidence, the district court sustained

the defendant’s motion for acquittal as to Count I. The

jury returned a verdict of guilty on Counts II and IV

(concerning James Cadle and Honore Gilarski) and not

guilty on Count III (concerning Willie Drake). The de-

fendant was sentenced to a term of imprisonment for 60

days on each of Counts II and IV to run concurrently and

was fined in the total amount of $2000.00.

On this appeal, the defendant’s contentions are directed

to evidentiary matters (admission of a witness’s state-

ment as past recollection recorded; admissions of testi-

mony of past similar acts; cross-examination of three

defense witnesses; and a remark by Government counsel

in closing argument), jury instructions, and denial of

motions for judgment of acquittal.

— oe —eg ee

App. 3

I

The evidence viewed as it must be in the light most fa-

vorable to the Government’s position with regard to the

two Counts on which there were convictions is in sub-

stance as follows.

A. Count IT

Cadle who lived in Detroit learned from a telephone

call from his mother that his father, whom he knew to

be ‘‘broke’’ was charged with a crime in Lake County

and that he was represented by Senak. The defendant

was appointed on September 20, 1966, as pauper attorney

to represent the father who according to the court entry

was ‘‘in Court without funds to employ counsel.’’ Cadle

borrowed $100 from a friend and went to Gary. Upon

arrival there he had a telephone conversation with Senak

who ‘‘said that he wasn’t representing anyone until he

has his fee, and it was $500.’’ The following day Cadle

went to Senak’s office and saw a sign on the desk which

said ‘‘Pauper’s Attorney.’’ The office was in the court

house at the county seat. Cadle gave Senak the $100 and

told him he would have to borrow the balance, Cadle

told Senak that he thought his father was an alcoholic

and should be in a hospital rather than in a prison. Senak

agreed and said that if Cadle could come up with addi-

tional money that ‘‘we can see that he don’t go’’ to prison

and ‘‘we’ll get him in a hospital.’’ Cadle did not pay the

additional amount. The father was sentenced to impris-

onment on a guilty plea. At the time the plea was entered

on October 10, 1966, Senak withdrew as pauper attorney

but appeared as counsel for the father. The son was un-

aware of this.

Cross-examination developed some conflicts in Cadle’s

testimony. However, we are not the trier of facts and

App. 4

the conflicts were not sufficient to cause us to disregard

the above summary as having been established to the sat-

isfaction of the jury.

B. Count IV

Steve LaPosi was charged by affidavit filed on August

12, 1967, with statutory rape (No. 39254, hereinafter No.

54) and by affidavit filed on August 14, 1967, with assault

and battery with intent to gratify sexual desires (No.

39256, hereinafter No. 56). On September 13, 1967, the

court’s entry in No. 54 showed that the defendant was

without funds and that the court appointed Pauper At-

torney Senak to represent him. No similar appointment

appears in the docket sheet of No. 56; however, on Sep-

tember 22, slightly more than a week after the defendant

had been judicially found to be without funds, the defen-

dant by ‘‘ Atty Nick Senak, files verified petition to estab-

lish’’ the defendant as being a criminal sexual psycho-

pathic person, The status of Senak at the outset in No.

56 is not clear from the record. Senak testified in response

to a leading question from his own counsel that he ap-

peared as private counsel in No. 56 on September 22."

At one point, Senak testified, ‘‘[p]ursuant to the one sheet,

it shows my appointment. Why the other sheet wasn’t

brought in at the same time to show my appointment, I

can’t tell you.’’ This would appear to suggest that he

had been appointed in the second case but that the ap-

propriate entry had not been made. The next question

concerned Senak being contacted by one [Honore] Gilar-

ski. The following then appears in Senak’s testimony:

‘ Counsel had received permission from the court to get through

some of the preliminary matters by leading questions.

App. 5

‘*Q. And would that have been before or about on

September 22, 1967, when you appeared as private

counsel in Cause No. 392561

A. That would be, as I remember, and at the same

time—the other sheet I interviewed him and at the

time I entered my appearance in the sheet you’re

talking about, I brought in the other sheet. And I

told the Court to—because Mr. LaPosi wanted to re-

tain me. And he said that a girl-friend—I believe he

said that he was going to marry—was going to pay

his attorney’s fees. I brought in both sheets at the

same time as the sheet that shows that I was appear-

ing as private counsel.’’

Senak then returned to the subject of Gilarski, testify-

ing that he told her what LaPosi was charged with, that

the cases would have to be consolidated, that LaPosi hai

told her he wanted Senak as his attorney and she had said

she was willing to pay the attorney’s fees, that he was per-

mitted to enter an appearance for LaPosi and would do

the best he could under the circumstances and the type of

case involved, that she would retain any lawyer she wanted

but she wanted Senak because he was familiar with the

case and that she gave him some money at that time and

some more later.

Gilarski, the girl friend of LaPosi, who was the Govern-

ment witness on Count IV, testified that she first came to

know Steve LaPosi in March or April of 1968, which was

at least one half a year after the first contact Senak’s tes-

timony would seem to say he, Senak, had had with her

about LaPosi’s criminal prosecution. The docket entry in

No. 56 shows that on March 22, 1968, LaPosi was A.W.O.L.

from the Dr. Norman M. Beatty Memorial Hospital at

which he had been earlier accepted in accordance with the

trial court’s commitment of him to the Division of Mental

Health. Gilarski testified that she first became acquainted

with LaPosi about a week after he had run away from the

hospital.

App. 6

Gilarski also testified that he said if she gave him any

money in regard to ‘this case’’ that he would have ‘‘to

withdraw as a Court-represented attorney,’’ and appear

as a private attorney. Senak did not withdraw as pauper

attorney in No. 54 until July 9, 1969, the date of the one

day trial in that case upon which LaPosi was found not

guilty. The two cases were never consolidated and the

record reflects no effort to achieve that end. Gilarski did

not know that there was an assault and battery case, No.

56, until after the trial in No. 54, At that time Senak asked

for about $700.00 additional ‘‘and that the total of $1200.00

that he (Nick Senak) had requested was to be split be-

tween a couple of other people. [She] could only pay about

$350 sometime in the late Summer.’’ On September 24,

1968, the State dismissed, being unable to produce any of

its witnesses.

According to Gilarski, her first contact with Senak was

by telephone. The conversation was initiated by Senak

and he asked her to pay about $500.00 to defend Steve.

She asked what the charges against LaPosi were and

Senak told her it was rape.

‘*A, Well, I asked him what he was doing to assist

Steve, and he said at that time he hadn’t had a chance

to talk to Steve since he had been brought from the

Beatty Hospital back to the County Jail. He wasn’t

even sure, he told me at that time, if he was still as-

signed to the case.’’

Gilarski also testified that during the telephone con-

versation Senak said ‘‘[t]hat Steve didn’t have much of

a chance, but that if I came up with some money, he would

have a better chance.’’

The telephone conversation took place in the Spring of

1968. She met Senak at the court house and made the first

payment of $300.00 to him on May 29, 1968, for which he

App. 7

gave her a receipt. She met him again at the court house

the day of the trial on No. 54 and paid him the balance.

Gilarski was uncertain just when she learned Senak was

the pauper attorney. He did say to her that ‘‘Steve would

not have much help without me giving him the money.”’

II

The first contention of Senak is that the district court

erred in denying his objection to improper argument by

the Government in its final summation. The defense

brought in a number of witnesses who testified that

Senak’s reputation in the community for honesty, integ-

rity, truth, and veracity was excellent. Senak then took

the stand. On cross-examination, he was asked with regard

to several payment transactions which were in evidence,

including the Cadle payment, whether he had included the

amounts involved in his federal income tax returns for

the year. It was indicated that he had not. It also appears

that the amounts in question did not appear in Senak’s

own records which he had turned over to the LR.S. Ac-

cording to the defendant on this appeal, to offset the un-

favorable inference from this line of questioning, on re-

direct examination he testified that he had voluntarily

turned over all of his books and records to the Internal

Revenue Service, had answered all questions put to him

by the agents and had cooperated with the agents of the

Internal Revenue Service. He further testified that as a

lawyer he knew that he was entitled not to turn over any

of his documents. The following then appears in the

transcript:

‘‘Q. Did you turn over all of your records to the

Internal Revenue Service voluntarily?

A. I did, sir.

Q. Did they ever have to subpoena any of your

records?

A. They did not, sir.’’

App. 8

He also testified on redirect examination that the first

examination by the I.R.S. agents took two days, that there

was no criminal charge filed against him in connection

with the examination and that he had agreed to a defi-

ciency because it would be prohibitively expensive to con-

test the matter in view of the small amount involved.

Upon recross-examination, the Government brought out

that the investigation by the LR.S. was a criminal investi-

gation and that the deficiencies pertained to both the civil

and criminal cases. The deficiencies in the criminal in-

vestigation for 1965 of $3,225 and for 1966 of $4,500 were

identified by Senak as being possibly correct amounts.

Upon redirect, Senak testified that he was an attorney and

knew the law and would not have volunteered any records

to the I.R.S. if he had committed a wilful fraud, knowing

in such case that he would be subject to criminal prosecu-

tion.

In the opening summation argument of the Govern-

ment, counsel after adverting generally to the evidence of

guilt, referred to the parade of character witnesses.

‘*Those witnesses,’’ he stated, ‘‘did not look at Nick

Senak’s tax returns, or did not talk to his clients.’’ De-

fense counsel responded:

‘‘And this man has been under investigation. The

LR.S. couldn’t get him. So they came at him with

this. Is this the conduct of a man who feels that he

has committed a criminal offense? If he felt that he

was cheating, defrauding the Government, not paying

his taxes, a man who is a criminal defense lawyer

says to the I.R.S.: ‘Here. Take all my records. Look

at them I'll talk to you about everything. I’ll make

statements to you,’ which he did.

‘Is this the mark of guilt? No, this is the mark

of a free and honest conscience. If you have some-

thing to hide and you know the LR.S. is breathing

App. 9

down your neck, a criminal tax investigation, particu-

larly a criminal defense lawyer, he is not going to say

to them, ‘Here are my books and records. Here, use

my adding-machine, too. I’ll help you convict me.’ ’’

In the Government’s closing argument, counsel referred

to the income not reported and argued that if a person

has a lawful right to that money, if he is an ethical per-

son, he should report that as his fees. ‘‘Maybe he was

cooperative with the Internal Revenue Service, but if he

knows full well that if you don’t hand the man the docu-

ments, then he’s going to hand you a subpoena. It’s as

clear-cut as that.’’ Defense counsel objected to the state-

ment on the ground that a taxpayer in a criminal investi-

gation does not have to volunteer anything. The trial

court denied the objection, observing that he thought the

defense comment was erroneous. After further colloquy,

Government -counsel concluded the particular subject by

observing that it showed guilty knowledge.

The defendant’s claim of reversible error appears to be

primarily based upon the Fifth Amendment ground that

an accused cannot be compelled to give evidence against

himself in a criminal proceeding and is thereby protected

from the compulsory production of books and papers that

would tend to incriminate him, citing U.S. v. White, 322

U.S. 694 (1944); Crucio v. U.S., 354 U.S. 118 (1957); U.S.

v. Cohen, 388 F.2d 464 (9th Cir. 1967); 58 Am.Jur. Wit-

nesses, Sec. 69, p. 62, et seq. (1948). The gist of the argu-

ment is that the jury was misled into believing that the

defendant’s cooperation with the tax authorities was a

sham and subterfuge since the Government could obtain

the same information by subpoena.

As an initial matter, it is not as clear as the defendant

would have us believe that an I.R.S. summons could not

have forced the production of the records. In Donaldson

App. 10

v. United States, 400 U.S. 517 (1971), it was held that the

use of the 1.R.S. summons is authorized in investigating

what may turn out to be criminal conduct so long as it is

issued in good faith and prior to a recommendation for

criminal prosecution. A discussion of guidelines for en-

forcement of such a summons and of the manner in which

the summoned individual can claim constitutional privi-

lege is set forth in United States v. Awerkamp, 497 F.2d

832 (7th Cir. 1974). The record does not help us here. It

is apparent that the investigation had criminal aspects

but there is no showing as to whether prosecution had been

authorized. It is clear that it never occurred. We cannot

say that the district court was incorrect in characterizing

as erronous the defense comment that a taxpayer in a

criminal investigation does not have to volunteer any-

thing.

We do not, however, deem it necessary to resolve this

question. The first reference to the use of a subpoena to

secure records did not come from the Government but

occurred during the redirect examination of Senak when

his own attorney, during the course of putting a gloss on

his client’s openness, hiding-nothing attitude, asked Senak

if they ever had to subpoena any of his records. All that

the prosecutor said was that if one doesn’t hand over the

records he will be handed a subpoena. We do not agree

with the defendant that this necessarily implies more than

it says, i.e., that he would have had to comply with a sub-

poena or summons. Under any circumstances, upon the

issuance of a summons Senak would have found himself

in the undesirable position for a lawyer of denying com-

pliance because to do so might incriminate him.

Colloquies of the sort which developed here mostly out

of the fact that a substantial part of the defense was the

good character of the defendant tend to resemble a snow-

App. 11

ball being pushed back and forth across an open field. The

size and scope increase with each directional roll. In view-

ing this give-and-take which occurs in vigorously con-

tested litigation, our principal inquiry is whether the

prosecutorial remarks deprived the defendant of a fair

trial. See United States v. Cook, 432 F.2d 1093, 1106-08

(7th Cir. 1970), cert. denied, 401 U.S. 996 (1971). View-

ing the argument as a whole, see United States v. Greene,

497 F.2d 1068, 1084 (7th Cir. 1974), and bearing in mind

that the comment anent the subpoena was the culmination

of the opening defense gambit that Senak did not require

a subpoena to produce his records, we are not persuaded

that the argument of the Government counsel brought

about an unfair trial.

Il

Senak next contends that the district court erred in

permitting the statement provided by Honore Gilarski

to the FBI to be admitted as substantive evidence under

the hearsay rule exception of past recollection recorded.

The statement in question had been taken by two FBI

agents on February 11, 1971. When Gilarski stated that

she could not remember any further conversation with

Senak, she was handed the two page statement for the

purpose of refreshing her recollection. Upon the comple-

tion of her examination of the document, she stated that

her recollection was not refreshed as to conversations she

had \ th Senak in 1968. The Government then moved to

admit the statement into evidence as past recollection

recorded. After a spirited colloquy, the court indicated

that it would admit the statement if the witness testified

that she had read it entirely and it was true and correct.

The statement was then produced and the witness testified

that that part which read, ‘‘I Honore L. Gilarski, have

App. 12

read this and one other handwritten page, and understand

it, anc it is true,’’ was in her own handwriting. She was

then asked and responded:

‘*Q. Mrs. Gilarski, was this a true statement at

the time you were interviewed by the FBI Agents in

19617

A. Yes.’’?

The statement was then admitted. Numerous deficiencies

in the procedure are urged, not all of which were pre

sented to the district court. We do not conceive that any

of these were deliberately waived in the trial court as a

tactical matter, or for other reasons and will consider each

of the asserted deficiencies. Nevertheless, in the overall

evaluation of the egregiousness of the claimed error we

cannot be unmindful that a litigant is not in as secure a

position of complaining about a trial court ruling for the

first time on appeal as he would if he had specifically

brought the matter to the attention of the trial court

thereby affording that body the full opportunity of ap-

preciating all incorrect aspects of the action taken or to

be taken. Defense counsel objected and objected vigorous-

ly in the district court but in this court has added to the

list of claimed grounds of deficiency. Our consideration

of the claimed deficiencies is not necessarily in the order

of their significance.

Defendant asserts that the first prerequisite to admis-

sion is that, even after having been displayed the memo-

randum, the witness has no present recollection. We-agree

2? We deem the “1961” reference to be a typographical error in the

transcript as the statement was dated 1971 and there is no indication

whatsoever of any FBI activity a decade earlier in respect to the

investigation of Senak.

App. 13

with this statement as a general proposition but find that

the parties are in disagreement as to what the record

reflects by way of lack of present recollection.

The defendant summarizes the transcript as follows:

‘‘During the course of her direct examination, she

tstified that, during a telephone conversation, the

defendant told her that LaPosi didn’t have much of

a chance but that if she came up with money he would

have a better chance; that she gave the defendant the

sum of $300 for which he gave her a receipt. She

could not remember any further conversation that

took place between them at that time.’’

We are not aware of the source for tying down further

conversation to ‘‘at that time.’’ The transcript shows:

‘*Q. Mrs. Gilarski, can you tell us, please, if you

ean recall, what, if anything, did Mr. Senak say to

you when you paid him the $300?

A. He said nothing.

. What, if anything, did you say to him as you

handed him the $300?

A. Nothing.

Q. Did any further conversation take place be-

tween you?

A. Not that I can remember.’’

Since Gilarski had already said she could not remember

anything Senak said to her nor anything she said to him

at the time the $300 was paid, it would appear it would

have been fruitless to ask about ‘‘any further conversa-

tions’’ ‘‘at that time.’’ That counsel did not so intend to

limit the question is indicated by his next question which

was whether her recollection would be refreshed ‘‘about

the details of some of these conversations if I were to

show you a copy of the statement. . . .’’ Counsel for the

defense was aware of the contents of the statement and

would have known that there was a conversation with

App. 14

Senak subsequent to the date of the $300 payment. The

objection that the witness had recollected everything to

the point in time to which’she had testified and therefore

there was no reason for the application of past recollec-

tion recorded could have been simply stated and equally

simply remedied by Government counsel making it clear

that he was inquiring as to any further conversations at

a subsequent time. Indeed, during the ensuing colloquy,

defense counsel stated, ‘‘{s]he has testified to practically

everything that is in that statement.’’ (Emphasis added.)

In considering this aspect of the claim, we note a dis-

cussion of the requirement of np present recollection in

McCormick’s Handbook of the Law of Evidence, 2nd ed.

§ 302, at 714-15 (1972). The author after surveying the

areas of disagreement in the application of the principle

concludes :

‘‘An accommodation of these various aspects may be

found in phrasing the requirement as a lack of suffi-

cient present recollection to enable the witness to tes-

tify fully and accurately, a standard which is gaining

adherents.’’

In our opinion this standard is consistent with the modern

concept of the admissibility of relevant evidence and we

adopt it. We hold that there was sufficient shown insofar

as lack of present recollection was concerned to entitle

the statement to be admitted.

Relying on that part of Rule 803(5) of the new Federal

Rules of Evidence that if the recorded recollection is ad-

mitted, ‘‘the memorandum or record may be read into evi-

dence but may not itself be received as an exhibit unless

offered by an adverse party,’’ the defendant claims error

in the fact that here the statement was in addition to being

read to the jury allowed in as an exhibit and taken to the

jury room with other exhibits.

_—

App. 15

The trial in the present case took place in October 1974

and the new Federal Rules of Evidence did not become

effective until July 1, 1975. Nevertheless, four years be-

fore the effective date, this court in United States v. Mc-

Carthy, 445 F.2d 587, 591 (7th Cir. 1971) expressed the

belief that the proposed Rules ‘‘should be used by the

district courts as guidelines and at least given considera-

tion in the exercise of their discretion in making eviden-

tiary rulings.’’ Also, in the present case the district court

had indicated that it intended to apply the new Rules.

Whether receiving the past recollection recorded memo-

randum as an exhibit when it has not been offered by the

adverse party would invariably constitute reversible er-

ror, now that Rule 803(5) is effective, as to which we ex-

press no opinion, we find no basis for reversing here. In

the course of objecting to the evidence, the defendant

focused on the reading of the documents to the jury:

‘‘T further object to it being read to the Jury that

singles out this particular exhibit. It’s an exhibit and

should be treated as any other exhibit, and going to

the Jury Room as any other exhibit.’’

Under these circumstances, to hold that the fact that

the document did go into evidence as an exhibit was re-

versible error would be an overly technical application of

a Rule not yet effective which we do not find ourselves

compelled to do.

The parties appear to be somewhat ambiguous in their

treatment of the impact of the statement. The defense

refers to a statement of the prosecutor during the objec-

tion-colloquy to the effect that the witness’s testimony was

not too far from what she had said on prior occasions, and

then points out additional matters in the statement to

which she had not testified during the trial. On the other

App. 16

hand, during the colloquy, defense counsel, as we have

previously noted, stated that ‘‘{s|he has testified to prac-

tically everything that is in that statement.’’ We are of

the opinion that there was sufficient additional incrimina-

tory information in the statement that we could scarcely

say that it did not add to the Government’s case. Indeed,

the very fact of corroboration of a witness’s testimony by

the fact that she had previously stated substantially that

which was in her testimony would strengthen the case.

This, however, is not determinative of the question of

admissibility.

Senak also objects to the fact that twice he was denied

the opportunity to voir dire the witness prior to the ad-

mission of the statement for the purpose of making a more

specific objection. He points out that upon subsequent

cross-examination numerous factors developed:

‘‘(T)}hat the interview took place over a two hour

period; that she didn’t know if the agents were taking

down everything that she said; that they were writing

and taking notes; that the statement was a summary

of the conversation over a two hour period; that the

statement really didn’t represent what she said; it

represented the FBI Agent’s impression of what she

said. The statement was not in her handwriting; she

had no recollection of reading the statement over be-

fore she signed it; and, after having read the state-

ment over and later heard it read again in open court,

she didn’t know whether she said any of the things in

the statement and that she was not under oath at the

time.’’

A trial judge always has a difficult decision when con-

fronted with the request to voir dire or preliminarily ques-

tion a witness for the purpose of lodging an objection to

testimony about to be offered. This procedure should not

be utilized, as it sometimes is, as anticipatory cross-exam-

an .

App. 17

ination for the purpose of devitalizing proposed evidence

before it has ever been received. The trial judge, however,

can exercise control over the scope of such out-of-order

interrogation and can put a stop to it if it exceeds its

proper scope. We think the better practice here would

have been to permit some voir dire questioning of the

witness. However, the defense was permitted to develop

fully on cross-examination all of the frailties which it

now attributes to the statement. The objection which we

deem the most significant one which could have been

raised, and which we will treat hereinafter, that of the

freshness of the recollection at the time the statement was

taken, was obvious on the face of the situation and needed

no voir dire. What was developed by cross-examination

in view of the explicit testimony of the witness that the

statement was true at the time she was interviewed by the

FBI agents goes only to the weight to be accorded to the

statement. In reviewing the exercise of discretion and

that which was developed by the vigorous cross-examina-

tion of Gilarski, we note the district court’s statement to

counsel out of the presence of the jury and before the

admission of the statement that ‘‘[i]t’s obvious the wit-

ness is frightened beyond description.’’ While under our

adversary system the scared truthful witness must be just

as much subject to searching cross-examination as the

glib liar, the trier of fact is given the difficult task of dis-

cerning whether matters affecting the weight of the wit-

ness’s testimony result from a lack of verity or from

trepidation.

From our reviewing point of view, we, of course, do

not ordinarily determine the question of credibility.

Nevertheless, in evaluating that which was brought out in

cross-examination as either being so destructive as to

preclude admissibility or merely being that which is to be

considered in the weight-giving process to be performed

App. 18

by the trier of fact we find some illumination in the ob-

servation of the judge concerning the witness. Since we

view that which was brought out as not precluding admis-

sibility if it had been permitted to be developed on voir

dire we are not persuaded that the denial of the oppor-

tunity constituted such an abuse of discretion as to re-

quire a reversal.

On appeal, Senak argues that ‘‘the most apparent de-

fect’’ in the predicate for admissibility is that it fails to

meet the requirement that the memorandum be made

when the events were fairly fresh in the memory of the

witness. The fact that it was made three years after the

event, of course, was just as apparent at the time of the

trial as it is now, yet at no time was this advanced as an

objection to the admission and there was no motion to

strike the statement on that ground.

Not only was the lapse of time obvious on the face of

the situation but when the trial judge was in the process

of determining whether the statement would be admitted

he observed:

‘*McCormick on Evidence says this ‘ I’m going to

read it. This is from Section 279 on page 594:

‘Records of Past Recollection’.

‘The typical and classic record of Past Recollection

was a one-man affair. The verifying witness was the

one man who originally observed the facts and the

man who wrote them down .. . One deviation from

this pattern, however, we have already mentioned.

This is the situation where the written statement is

made by someone other than the witness, but the wit-

ness verifies it for admission by testifying that when

his own memory of facts was fresh, he read the memo-

randum and knew that it was true. Here only the wit-

ness who recognized the truth of the memorandum

need be called.’ ’’ (Emphasis added.)

App. 19

The quotation by the judge was from the first edition

of the Handbook on Evidence by Professor McCormick

(1954) and the reference to freshness of memory was

incidental to the primary scope of discussion being that

of co-operative records and reports. Nevertheless it would

appear to us that the reference was more than sufficient

to have triggered at that time, not for the first time on

appeal, an objection based upon the fact that the state-

ment resulted at an interview taking place some three

years after the occurrence of the events related in the

statement. Indeed, the reference would appear to be a

patent invitation to such an objection. To stress grounds

of objection such as that the Government has not pro-

duced the FBI agent to testify that he took the witness’s

statement down verbatim and that this was hearsay as

to the defendant could only serve to divert the trial court’s

attention from that which the defendant on appeal char-

acterizes as the ‘‘most apparent defect.’’ Our considera-

tion of the present issue must be on the basis that reversal

sould be required only if we are convinced that there was

error so plain and clear that Senak was denied a fair trial.

In the same first edition of McCormick from which the

district court quoted, the freshness of memory aspect is

dealt with separately in § 277, at 591 as follows:

‘‘The usual requirement for witnesses and for hear-

say declarants that they must have had first-hand

knowledge of the facts is enforced here. But the most

distinctive requirement is designed to guarantee that

this knowledge must have been clearly and accurately

remembered by the witness who tenders the writing,

as of the time that he made or recognized the correct-

ness of the writing. An older, strict formula, still

commonly used, is that the writing must have been

made or recognized as correct ‘at or near the time’

of the events recorded. This limitation has some sup-

App. 20

port in psychological findings. More liberal is the

standard often found in the opinions and preferred

by Wigmore, namely, at a time when the events were

‘fairly fresh’ in the memory of the witness. The last

test seems the more practical and it should be flexibly

administered. It is true that the nearer to the event

the more reliable the statement is likely to be, but

it is equally true that all statements made substan-

tially nearer to the event that the trial itself suffer

less from errors of memory than the testimony of wit-

nesses from purported present recollection on the

stand.’’* [Footnotes omitted.]

While in at least one case there is a suggestion that the

statement must be recorded contemporaneously with the

event, Dickinson Supply, Inc. vy. Montana-Dakota Utilities

Co., 423 F.2d 106, 109 n. 1 (8th Cir. 1970), we believe the

better view is that the discretion of the trial judge should

* The second edition of McCormick’s Handbook (1972) prepared

under the editorship of Professor Edward W. Cleary with various

professorial contributing authors, has some change of verbiage on

the subject but both texts adhere to favoring a more liberalized view

on admissibility. The second edition text is as follows:

“The writing must have been prepared or recognized as cor-

rect at a time close to the event. Some opinions use the older

strict formulation that requires the writing to have been made

or recognized as correct ‘at or near the time’ of the events re-

corded. This finds some support in psychological research sug-

gesting that a rapid rate of forgetting occurs within the first

two or three days following the observation of the event. But

the tendency seems to be towards acceptance of the formulation

favored by Wigmore which would require only that the writ-

ing be made or recognized at a time when the events were fairly

fresh in the mind of the witness. No precise formula can be

applied to determine whether this test has been met; perhaps

the best rule of thumb is that the requirement is not met if the

time lapse is such, under the circumstances, as to suggest that

the writing is not likely to be accurate.” [Footnotes omitted. ]

(Sec. 301 at 714.)

lll

App. 21

not be rigidly bound by an inflexible rule but rather that

it should be exercised on a case-by-case basis giving con-

sideration to all pertinent aspects including the lapse of

time which reasonably and properly bear upon the likeli-

hood of the statement being an accurate recordation of

the event to which the memory related. Of course, the

likelihood of accuracy only justifies admission but does

not preclude an effort, as in the present case, to persuade

the trier of fact that matters in the statement are not

factually correct.‘

It is not unusual to read a record on appeal in which

it is clear that the witness who is testifying is many more

than three years removed from the events as to which

he is testifying. Of course, such a witness is subject to

immediate cross-examination. Here while the witness was

subject to ultimate cross-examination she was not sub-

jected to this procedure at the time the statement was

given, which, if it had occurred, could arguably have

resulted in changes or variations in that which she related

to the recording agents. Nevertheless, the facts that there

is no rule, other than the credibility scrutiny of the trier

of fact, which curtails the lapse of time applicable to the

live witness on the stand, would suggest that we should

not arbitrarily say any given length of time is too long

for the statement-giver to have an accurate memory and

for a proper application of the past recollection recorded

procedure.

Here the time was three years. We are unaware of

any cases where this amount of time has been involved.

We are not unmindful that there are cases in which a

4 We are not impressed by the Government’s explanation that the

witness was not interviewed until 1971 because the Government's

investigation did not begin until that time. The question is whether

when the witness was interviewed was her memory fairly fresh.

App. 22

much lesser period of time has been held to be fatal to

admission. Thus, in Gigliotti v. United Illuminating Com-

pany, 101 Conn. 114, 193 A.2d 718, 723 (1963), in which

the written statement was signed about six weeks after

the event, the reviewing court held that the trial court

was fully justified in excluding the statement on the

ground that it was not made at or about the time of the

events recorded in it. The trial court had based its exclu-

sion on several independent grounds but the appellate

court apparently deemed there was no necessity to give

consideration to whether in fact the witness’s memory

might have still been fresh enough to justify admission.

An analytical approach to the rule with a discussion of

its underlying rationale is found in United States v. FMC

Corporation, 306 F. Supp. 1106, 1137-38 (E.D. Pa., 1969).

The court there adopted the Wigmore standard that the

past recollection must have been sufficiently fresh and

vivid to be probably accurate and properly, in our opinion,

emphasized that there should be no inflexible criteria for

determining when a writing is so remote from the events

described as to make it inadmissible. In excluding the

proffered grand jury testimony, the judge in FMC gave

significance to the memory lapses of the witness at the

time of his appearance before the grand jury the tran-

script of which was the recordation in question and held

therefore that there were inadequate safeguards to insure

the accuracy and trustworthiness of the grand jury testi-

mony.

From our examination of the record in the case before

us we have no question but that the district court was

convinced that the statement accurately reflected the wit-

ness’s version of the events as they occurred. Confining

the admissible portion to factual matters only, the court

excised two phrases which the defendant described as

LA SY Bs ae a NE ly At ll a ee Ne a i Ay a RN ee ly i ll te

ae ee

a eeatnttneen ttle

App. 23

conclusions: ‘‘[h]e led me to believe that if I didn’t pay

him, Steve LaPosi would not have a chance in trial court,”’

and the italicized portion of the following, ‘‘On the day

Steve was found not guilty, Nick Senak contacted me for

the purpose of obtaining more money.’’ The statement

as it went into evidence displayed no lapses of memory

as was the situation in FMC, supra, but was specific in

detail and was not inconsistent with that which the wit-

ness was able to recall when on the witness stand during

trial. It appears obvious that Gilarski had read the state-

men? as she had initialled several strikeouts in the text.

Particularly significant is the fact that stricken and ini-

tialled was the phrase, ‘‘I knew that Nick Senak was a

pauper’s attorney.’’ The agents had apparently written

this in the statement but it had been stricken at the

time of writing as having not been known by her at the

time to which it related. Also, at one point the word

‘‘fall’? as the time of a payment had been stricken and

initialled with ‘‘Summer’’ being substituted. The trial

judge could not have been unmindful of the fact that this

was not a case where a witness was going back three

years in time to attempt to resurrect facts which would

have made no particular impact upon her memory. This

obviously was no routine series of transactions but in-

volved a dealing with a lawyer in an effort to get ‘‘a

change’’ for her boyfriend in relation to the criminal

charges which had been brought against him.

Under all of the unusual circumstances of this case,

we are not persuaded that the introduction of the state-

ment requires a reversal.

App. 24

IV

Senak’s next contention of error relates to the admis-

sion of the testimony of Robert L. Becker, the cousin

oi one Anna Zolkes, who was charged with voluntary

manslaughter and who was represented by the defendant

as a private attorney and not as the pauper attorney. ®

Becker testified that he learned his cousin was repre-

sented by an attorney and he met with her and the at-

torney who was the defendant. He then testified as to a

conversation he had with Senak, the substance of which

was as follows:

He was introduced to the defendant by his cousin, Anna

Zolkes; he asked what the charges were; the defendant

said they hadn’t been brought yet, that this was a pre-

liminary hearing. He asked the defendant about bail bond;

the defendant didn’t know but said that his cousin was

in a lot of trouble; she had killed her husband. The de-

fendant asked Anna Zolkes how much money she brought;

Mrs. Zolkes opened her purse and gave him the money

she had. He stated the defendant looked through her

purse and took the change and said ‘‘If I don’t get some

money, I can’t defend this girl.’’

The witness asked the defendant how much money he

wanted; the defendant said ‘‘I should have a retainer

of $3000.00.’’ The witness said, ‘‘This woman can’t afford

you; tell me who the pauper attorney is.’’ The defendant

stated, ‘‘I’m the pauper attorney and if I represent her

as a pauper attorney she’ll go to jail, she’ll be charged

with first degree murder and get the chair.’’

* While Becker testified that to his knowledge, Anna Zolkes was

entirely destitute and had been for months, it is clear that she had

never made any request for pauper counsel and that the defendant

was never formally appointed as pauper counsel in her case.

App. 25

There was a bondsman present during the discussion

and the witness gave the bondsman either fifty dollars

or a hundred dollars and gave the defendant a post-dated

check for one hundred and fifty dollars.

The defendant concedes that the testimony was offered

by the Government for the purpose of showing intent,

scheme, motive, design, and plan. The defendant, pointing

out that ‘‘{o]bjection to the testimony was made on the

basis that it did not constitute evidence of similar crimes,’’

cites to us cases dealing with the matter of the admission

of evidence of other similar crimes. This is followed by

the assertion, without citation of supporting authority,

that the sine qua non for admissibility under any theory

is that the evidence constitute a crime. The defendant

then concludes that since this was a private relationship

there could have been no crime.

We do not agree that similar acts introduced to estab-

lish motive, intent, the absence of mistake or accident,

or a common scheme or plan must necessarily be acts

constituting a crime. Probably most of the cases dealing

with the precise issue have involved other acts which

were of a criminal nature because of the courts’ concern

that a defendant may be unduly damaged in the eyes of

the trier of fact by being considered a common criminal,

or in other words, the defendant would be being tried

on the purity of his character rather than on his guilt

or innocence of the crime charged. The defendant here

finds himself in the somewhat dilemmatic position of

relying on the cases in which the admissibility of evidence

of other crimes was the issue while denying that the acts

involved in the testimony amounted to a crime.

As Wigmore points out, 1 Wigmore on Evidence, (3rd

ed. 1940) § 216 at 712-18 and 2 Id., § 305 at 205-6, the

criminality of other acts does not affect their admissibility ;

App. 26

either they are relevant or they are not, in which case

they are rejected; and the only bearing of their having

the quality of criminality is that the undue prejudice in-

volved in acts which are crimes is another reason for ex-

cluding them. Here we do not, by the defendant’s own

argument, have the additional undue prejudice which

would flow from other acts of a criminal nature.

Rule 311 of the Model Code of Evidence of the Ameri-

can Law Institute is quoted as having been previously

applied in the circuit in Swann v. United States, 195 F.2d

689, 690-91 (4th Cir. 1952):

‘Rule 311. Other Crimes or Civil Wrongs. Sub-

ject to Rule 306, evidence that a person committed

a crime or civil wrong on a specified occasion is in-

admissible as tending to prove that he committed a

crime or civil wrong on another occasion if, but only

if, the evidence is relevant solely as tending to prove

his disposition to commit such a crime or civil wrong

or to commit crimes or civil wrongs generally.”’

The new Federal Rules of Evidence similarly appear to

recognize that the other acts need not be crimes. Rule

404(b) provides as follows:

‘Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show that he acted in conformity therewith. It

may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident.’’ (Emphasis added.)

Since the underlying basis of the charge against Senak

was that he used his position to extract money from per-

sons under threat of inadequate legal representation unless

the sums were paid, we cannot say that the court erred in

determining that the evidence was relevant to Senak’s

App. 27

plan and intent as reflected in the evidence pertaining to

the counts on which he was found guilty. Further, we note

that the purpose for which the evidence was admitted was

properly delineated in the court’s instructions :

‘‘If the jury should find beyond a reasonable doubt

from anes rt comin in the case that the accused did

the act charged in the particular Count under de-

liberation, then the jury may consider evidence as

to an alleged earlier act of a like nature in determin-

ing the state of mind or intent with which the accused

did the act charged in the particular Count. And

where proof of an alleged earlier act of a like nature

is established by evidence which is clear and conclu-

sive, the jury may, but is not obliged to, draw the in-

ference and find that, in doing the acts charged in the

particular Count then under consideration, the accused

acted wilfully and with specific intent, and not because

of mistake or accident or other innocent reason.”’

The defendant also complains that the court refused

to hear the testimony of Zolkes outside the hearing of

the jury to establish the nature of her relationship with

Senak even though the Government had subpoenaed her

and she would have been available to testify prior to the

Becker testimony. However, the nature of the relationship

as being private was not in dispute. Further, the de-

fendant complains that the Government never did call her

as a witness. However, it is not shown that she would

have established by her testimony any matter other than

the private attorney-client relationship which she had, as

to which there was no dispute.

Finally, on this point, the defendant complains that he

was denied the opportunity to show a pattern of lawful

conduct to rebut the testimony of Becker. We find no

merit in this contention as it appears the defendant was

App. 28

given wide latitude in showing the practices in the Lake

County Criminal Court with regard to the conduct of the

office of pauper attorney.

V

The next contention of error is that the court permitted

cross-examination of Senak which showed that he had

failed to report on his ledger sheets a $100 payment by a

Mrs. Daugherty and that he had reported a $2500 fee with

respect to Mrs. Zolkes and that the LR.S. investigation

culminated with an assessment based on a $3400 fee for

that particular matter. The gist of the argument is that

since there had been no conviction for income tax evasion

or similar crime, the evidence should have been excluded.

We have previously referred in this opinion to the

snowballing development of this subject in connection

with the prosecutor’s closing argument. On this appeal,

the defense confines itself to the Daugherty and Zolkes

transactions since neither were the subject of indictment.

However, the first push of the snowball was adminis-

tered with regard to the Cadle fee which was involved in

an indictment count on which Senak was being tried.

On cross-examination, the defendant testified that he

felt he was legally aud lawfully entitled to the amount

received from Cadle. He was then asked if he had re-

ported this amount on his 1966 income tax return. Counsel

objected on the basis that the question was outside the

scope of the issues. Before the district court had indicated

any ruling on the evidence, Senak, himself, stated, ‘‘I’ll

answer that question,’’ and then proceeded to state that

if the record indicated the payment had not been reported

it was neglect on his part. This was followed by the in-

troduction of the records Senak had turned over to the

[.R.S. upon which Senak conceded that there was ‘‘no in-

dication here of Mr. Cadle.’’

App. 29

Without determining whether the door may not have

been opened by the foregoing development pertaining to

Cadle as to the reporting of all fees as to which there

had been evidence, we do not agree that the introduction

of the evidence required a showing that there had been

a criminal conviction. After the evidence was all in it was

clear that the evidence only showed that income had been

received which had not reached the records. This may or

may not be a criminal offense. Senak offered his own

reasons for the failure. This was not a case of attempting

to impeach a witness by showing that he had been charged

with or arrested for the commission of a crime. The evi-

dence, however, could have been found relevant by the

trier of fact to the question of Senak’s credibility, he

having taken the witness stand. A substantial number

of witnesses had testified on behalf of the defendant that

his reputation for truth and veracity in the community

was excellent. Senak contended at trial that all of the

fees referred to in evidence were proper and lawful, yet

they were not recorded either wholly or in part in his

records of receipts.

Senak relies upon Rule 608(b) of the new Federal Rules

of Evidence pertaining to the use of specific instances of

non-criminal conduct. The Government again argues that

the Rules were not effective at the time of the trial. Even

if they were we do not find great help to the defendant

as extrinsic evidence of the conudct of a witness may,

under the Rule, be inquired into on cross-examination, in

the discretion of the court, if probative of truthfulness

or untruthfulness concerning the witness’s character in

that respect.

In our opinion, the district court did not abuse its

discretion in deciding that the probative value of the

App. 30

particular evidence outweighed any prejudicial chaarcter

it may have had. United States v. Kaufman, 453 F.2d 306

(2nd Cir. 1971); Simon v. United States, 123 F.2d 80 (4th

Cir. 1941), cert. denied, 314 U.S. 694.

VI

Robert A. Lucas, a prominent attorney who practiced

in the county, was called as a character witness by the

defendant and testified, in response to questions couched

in the present tense, that Senak’s reputation in the com-

munity for honesty, integrity, truth, and veracity was ex-

cellent. The witness who was one of six character wit-

nesses was asked upon cross-examination if he had any

knowledge as to the allegations made by the various Gov-

ernment witnesses in regard to this defendant. Senak

contends this was error because it involved charges which

were in issue in the case, citing the annotation at 47 ALR

2d at 1303-06 (1956). That authority, in reliance upon

state court cases from Alabama, Kentucky, and Texas,

categorically states that ‘‘[iJt is error to permit the cross-

examination of the defendant’s character witness as to

whether he has heard that the defendant committed the

act for which he is on trial, since such cross-examination

must be confined to acts antecedent to the commission of

the offense for which the defendant is on trial.’’ Jd. at

1303-04. (Footnote omitted.)

The rationale of this statement is probably found in

the opinion cited in the annotation of Stephens v. State,

128 Tex.Crim. 311, 80 S.W.2d 980 (1935) to the effect

that the fact that the defendant who was indicted in the

case on trial should not be proved to be of bad reputation

at time of trial solely because of alleged discussion of the

alleged offense for which he was on trial since he was

App. 31

presumed innocent until convicted. While this approach

has some appeal, we do not deem that the test, at least in

federal practice, can be as simply delineated as has been

done in the annotation.

The difficulties of determination of the scope of cross-

examination are analyzed and discussed in Michelson v.

United States, 335 U.S. 469 (1948), as a result of which

the Court concluded on the matter of appellate review as

follows (at 480):

‘‘Both propriety and abuse of hearsay reputation

testimony, on both sides, depend on numerous and

subtle considerations difficult to detect or appraise

from a cold record, and therefore rarely and only on

clear showing of prejudicial abuse of discretion will

Courts of Appeals disturb rulings of trial courts on

this subject.’’ (Footnote omitted.)

The subject is also extensively discussed in United

States v. Lewis, 482 F.2d 632 (D.C. Cir. 1973). There the

court while recognizing the dangers of undue prejudice in

adversion to conduct subsequent to the events in issue

nevertheless laid down a flexible test (at 642):

‘‘Some discretion in the matter is more in keeping

with the broad latitude which judges have as to the

admission of character testimony, and which tradi-

tionally they have exercised over the scope of cross-

examination, than is any inexorable rule on the sub-

ject. A measure of discretion imparts to the pro-

ceedings a desirable degree of flexibility to shape the

judge’s ruling to the ‘numerous and subtle considera-

tions’ appearing. Not every situation calls for exclu-

sion of questions exploring knowledge of events oc-

curring after the time in issue. Not every subsequent

event is an unacceptable topic, nor a topic so prejudi-

cial as to outweigh its probative significance; some

events otherwise objectionable perhaps could be made

App. 32

unobjectionable. A decision to permit inquiry respect-

ing subsequent events should, of course, be reached

cautiously and only for the best of reasons. But in

the final analysis the matter should be left to careful

handling by the trial judge, subject to appellate cor-

rection only where mishandling is clear.’’ (Footnotes

omitted. )

In examining the question of whether the permission

over objection of the particular cross-examination, which

was confined to one of the character witnesses only, a

lawyer who arguably at least might have been in a better

position to evaluate the community reputation of the

defendant from the point of view of the impact his con-

duct as a lawyer had had on his reputation in the com-

munity, constituted an abuse of discretion, we note the

following. The defendant had been permitted a broad

spectrum of proof of good character—honesty, integrity,

truth, and veracity. This was not confined to the time of

the incidents for which he was being prosecuted or close

thereto but was brought down to the time of the trial.

The trial court subsequently permitted a lay witness to

testify over Government objection that Senak ‘‘is in my

relations with him as Assistant Pastor to be [sic] an

honest man, to be trustworthy.’’ Lucas was not asked

whether, if he had known the incidents to have been true

it would affect his opinion nor indeed was he asked to

express any opinion on the effect of the incidents which

were not described to him.* Finally, at the conclusion

of the cross-examination, the witness testified that al-

though he had no personal knowledge of the incidents

earlier inquired about he had read newspaper accounts

concerning the allegations, and ‘‘of course, in the course

®A typical question was: “Have

: you any knowledge as to allega-

tions by Honore Gilarski as to this defendant ?” si

App. 33

of association with other professional persons, I have

generally heard of the gist of the Government’s charges

against the defendant . . . from my past association and

experience with the defendant, I would believe that I still

feel that he is a man of integrity and honesty.’’ This he

based on Senak’s reputation in the community and his

association with Senak for 25 years.

Under these circumstances, we do not find the permis-

sion of the particular cross-examination to be an abuse of

discretion.

Vil

At the time of the involved incidents, the judge of

the Lake Criminal Court was John H. McKenna who

had appointed the defendant as pauper attorney. McKenna

testified extensively as to the custom and usage in the

court with respect to pauper attorneys; that during his

tenure and that of his predecessors, the pauper attorney

was authorized to appear as private counsel for persons

he had been appointed to represent if it developed that that

person or his friends or relatives had engaged him as

private counsel. McKenna also testified over Government

objection that there was no difference in the quality of

Senak’s representation whether he was representing an

indigent or a person who had hired him privately and that

his representation of defendants was excellent.

Prior to cross-examination of McKenna, Senak sought

a protective order to prevent the Government from allud-

ing in any way to the trial of McKenna on a charge of

federal income tax evasion for which he had been acquitted.

The trial judge ruled that the question referring to the

trial which the Government had proposed to ask could not

be asked unless the witness stated that he was biased

against the Government. In response to the question of

App. 34

whether he had any bias against the Government ‘‘in this

case,’’ McKenna replied, ‘‘I have no bias. I’m here as a

witness to tell the truth.’’ However, when asked, ‘‘Spe-

cifically, Mr. McKenna, do you have any bias against the

Department of Justice?’’ the witness stated, ‘‘On occasion

I have.’’ The Government then asked permission, which

was granted, to pursue the matter of the ‘‘occasion.’’

After some colloquy as to the form of the question, the wit-

ness was asked, with defense objection being denied:

‘*Q. Now you said ‘on occasion’ in response to my

past question, Mr. McKenna. And wouldn’t this

be the occasion that you are biased against the

Department of Justice because they, in fact,

prosecuted you, although unsuccessfully, for in-

come tax evasion?’’

McKenna responded that that was not the reason and

when pushed further as whether he had any bias against

the Department of Justice on that account he responded,

‘‘Like any other citizen, I have my opinion.’’ When in-

formed by the court that he had to answer the question

with a ‘‘yes’’ or a ‘‘no,’’ he responded by the latter. The

Government then left the matter.

The gist of the defense argument is that the Govern-

ment was attempting to impeach the credibility of Me-

Kenna by showing that he had been accused of a crime

and that this was improper in the absence of a conviction.

The defense misconceives the basis upon which the court

permitted the inquiry. As the court stated,

‘*You’re talking about convictions that go to the ques-

tion of credibility. This is an area where you’re

talking about bias or prejudice or hostility that might

have been engendered.

App. 35

‘‘But until I am persuaded to the contrary by

[Government counsel], I am going to hold that if he

says that he is not, that he may not ask that next ques-

tion.’’

3A Wigmore, Evidence § 949 at 784-90 (Chadbourne rev.

1970) points out that the range of external circumstances

from which probable bias may be inferred is infinite and

that too much refinement in analyzing their probable ef-

fect is out of place. While further observing that exact

concrete rules are almost impossible to formulate, the

author then has no trouble in being specific as to bearings

to be found from the fact that a witness is or has been

under indictment:

‘‘(1) if the indictment, present or past, was had by

the opponent’s procurement or for an injury to him,

it is relevant as having tended to excite in the wit-

ness a hostile feeling to him.’’ (Jd. at 790) (Emphasis

in the original.)

Here, it may be fairly assumed the Department of

Justice had been instrumental in procuring the indictment

against McKenna, and therefore, the inquiry might prop-

erly have been pursued without McKenna’s admission that

on occasion he had been biased against the Department of

Justice. Having admitted that, we have no difficulty in de-

termining the present contention to be without merit.

vill

While civil rights cases, including criminal prosecutions

under 18 U.S.C. § 242, are no strangers to the courts, the

factual context of the present case is sufficiently of first

impression stature as to impose limitations on the resort

to form books for significant portions of the jury instruc-

tions. It is not surprising therefore to find that the parties

and the court devoted substantial attention to the matter

App. 36

of settling the instructions. We have carefully reviewed

the transcript both as it pertains to the objections to in-

structions to be given and those refused and as it pertains

to the actual charge. While the defendant attempts to find

reversible error in certain phrases and portions of the in-

structions given, we are of the opinion that, when those

singled-out portions are viewed in the context of the total

charge, the jury was fully and fairly informed of the

applicable law and the rights of the defendant inherent

under our system of justice. Likewise, we find no error in

ne refusal of certain instructions tendered by the defen-

ant.

The defendant first attacks portions of the charge per-

taining to a delineation of what the Government was re-

quired to prove to demonstrate a violation of section 242.

The court in this respect emphasized, and indeed through-

out the instructions continued to emphasize, the necessity

that the Government had to prove each of the elements of

the crime charged beyond a reasonable doubt. Since the

indictment charged that the defendant deprived the named

persons of property without due process of law, it became

necessary for the court to essay into the important, but

difficult, * matter of definition of that concept. The defen-

dant particularly objected to a portion of the instruction

claimed to be mandatory but not containing all of the ele-

ments of the offense. In the objections, the defendant had

specified the missing elements as being the standard of

reasonable doubt and not setting out the burden of proof.

As a matter of fact, the same paragraph in which the

challenged portion appears referred to a finding beyond a

*“But there is no table of weights and measures for ascertaining

what constitutes due process.” Mr. Justice Frankfurter in B

v. Wilson, 346 U.S. 137, 149 (1953). as

App. 37

reasonable doubt. In any event, the paragraph was just

one continuing portion of a definitive instruction pertain-

ing to the statute and the indictment brought under it.

The complained-of missing elements were more than ade-

quately covered in the instructions and no one paragraph

is expected to include all phases of the litigation.

We do not read this portion of the district court’s charge

as does the defendant. When the jury was told that Senak,

as Public Defender, was not entitled to any money from

the clients he was appointed to represent, the fact finding

body was told nothing more than that during the time he

was serving as pauper attorney he was not entitled to

other fees. This, of course, did not preclude the proper

termination of that relationship and a retained status

thereafter if the clients or their relatives had funds for

that purpose. This, on the other hand, is not to mean

that a person who was entitled to representation under the

rules of the court should have extracted from him money on

the basis of threat that continuance as or service as pauper

attorney would provide a less adequate defense than would

be given on a retained basis. As the district court stated

in one portion of the instructions: ‘‘As a matter of law,

the defendant, Nick Senak, was required, as a Public De-

fender, to provide his clients with nothing less than ade-

quate legal protection.’’

The court gave examples of deprivation of property

without due process for exemplary purposes; however, in

his objections to this portion of the charge, the defendant

overlooks that the jury was told each of ‘‘the persons

involved in this case who were allegedly deprived of prop-

erty had the continuing right to use and control his own

property, including money, until such time as he voluntart-

ly disposed of it or it was taken from him by means of

App. 38

due process.’’ (Emphasis added.) Since much of the de-

fense was based upon a claim that the payments were

voluntarily made, the issue was squarely posed for the

jury as to the circumstances under which the payments in

fact were made.

We also read the instructions as not saying, as the defen-

dant contends, that once Senak was appointed, the only

way money could be secured from the clients or their

relatives was through suit by the county attorney. That

the jury did not so understand the instructions is indicated

by their acquittal on Count ITI.* In sum, we do not agree

with the contention that the jury was told ‘‘that once the

defendant had been appointed as public defender for any

person the defendant could under no circumstances take

money from that client or friends or relatives of that

client.’’

The defendant also claims error in the portion of the in-

struction given to the effect that it was necessary to show

or to prove that the defendant was thinking in constitu-

tional terms. The defendant’s reliance on Screws v. United

States, 325 U.S. 91 (1945) is misplaced. Here, as con-

trasted with Screws, the jury was instructed that it was

not sufficient to find that the defendant had a generally

had purpose. It was made plain to the jury that specific

intent must be established, that ‘‘the Government must

prove that the defendant knowingly did an act which the

law forbids, . . . purposely intending to violate the law.’’

*In Count III, Senak was charged with depriving Ernest Drake

of $180 to defend Drake’s nephew. On cross-examination, it was

developed that the money came from the sale of a motor bike which

belonged to the nephew. The jury could have concluded that Ernest

Drake was not deprived of any of his own property and, of course,

the money was not paid by virtue of a suit for recoupment by the

county attorney.

App. 39

During the course of instructing on specific intent, the

court made reference to the lack of necessity of showing

that the defendant was thinking in constitutional terms.

But this phrase appears in Screws: ‘‘The fact that the

defendants may not have been thinking in constitutional

terms is not material where their aim was not to enforce

local law but to deprive a citizen of a right and that right

was protected by the Constitution.’’ 325 U.S. at 106.

Finally, with regard to instructions, Senak complains

of the refusal to give three of the instructions tendered

by him. Each of the instructions concludes by the man-

datory, ‘‘you must find the defendant not guilty.”’ No. 3

would have led to that result if the persons named in

each Count were not entitled to the services of pauper

counsel. In his objections at trial, the defendant argued

that this was particularly important as to the Drake

count, but, as noted above, there was an acquittal on that

count. In any event, this would have introduced an

entirely collateral, irrelevant inquiry. The issue before

the court pertained to the deprivation of property in

connection with persons charged with state crimes during

a time that Senak was the appointed counsel. To decide

his guilt or innocence on the basis of whether the state

court should not have appointed him or should not have

continued the appointment would be an improper cri-

terion. No. 4 would have required an acquittal based in

part upon the asserted law that the appointment of a

public defender created no rights for relatives or friends

of the accused person. However, we are here dealing

with whether constitutional rights to property suffered

deprivation and these rights were shared by the relatives

and friends as well as those charged with the local

crimes. No. 5 would have mandated an acquittal if the

jury had found that Senak was authorized to appear as

App. 40

private counsel for those he had been appointed to rep-

resent and had been authorized to accept payments in

such event. However, the indictment was not concerned

with this conjectural possibility. What it was concerned

with was the allegation that Senak conditioned his repre-

sentation of persons for whom he had been appointed as

pauper attorney on the payment of money to him.®

IX

Finally, in a two pronged attack the defendant con-

tends that his motion for judgment of acquittal at the

close of the evidence and a similar motion after verdict

should have been sustained. The defendant candidly ad-

mits that the second portion of the attack is primarily

based upon a claim that the indictment fails to state an

offense against the United States and that this has been

determined adversely to the defendant in the prior appeal.

United States v. Senak, supra. We agree with his analysis

and respect the defendant for his candor. We, however,

upon reexamination of the prior opinion decline to agree

that it was erroneous. We find no merit in the contention

that the failure to grant the motion for acquittal as to

the Court III (Drake) was imp-oper or that it somehow

tainted the other verdicts. We have examined the evidence

in the light most favorable to the Government as we are

bound to do on this appeal and in that light are unable

to agree that there was not sufficient evidence to support

the verdicts of guilty on Counts II and IV, which counts,

as we have previously held, did state an offense against

the United States.

* The issue was succinctly put by the defense counsel in his final

summation : “[i]f you are convinced beyond a reasonable doubt that

this man treatened these people with inadequate representation, yes,

you should find him guilty.”

App. 41

In his original appellate brief on the present appeal,

the defendant, again with candor, argues that ‘‘[a}ll that

the evidence in this record shows is that the defendant

may have illegally charged a fee to perform a pre-existing

duty.’’ That which the jury could have found proven goes

farther than that. It adequately supports the verdict

of guilt of deprivation of property in violation of

18 U.S.C. § 242.

From our review of the entire record and considera-

tion of the various errors urged by the defendant we

are convinced he was given a fair trial and that the

judgment of conviction does not require reversal. Ac-

cordingly, the judgment of the district court is

AFFIRMED.

Farcump, Chief Judge, concurring. With respect to

Part VII, cross-examination of Judge McKenna, the ques-

tions concerning bias against the Department of Justice

perhaps bear the analysis that they were within bounds.

I do not think, in any event, that this series of questions

affected the outcome of this trial, and therefore would not

reverse on their account.

I do view them, however, as the type of questionable

conduct government counsel should avoid. The suggested

analysis is that the fact that the witness has been prose-

cuted for a federal offense raises some probability that

he will color his testimony in favor of another federal

defendant. This seems to me grossamer covering for the

prosecutor’s real hope that the jury will view the witness

less favorably because he was charged, though not con-

victed, with income tax evasion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circust

App. 42

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

72 H Criminal No. 6

Title 18 U.S.C. §242

UNITED STATES OF AMERICA

v.

NICK SENAK

The Grand Jury Charges:

COUNT I

In or about March, 1967, in Lake County, Indiana, Nick

Senak, who was then and there serving as duly appointed

pauper attorney of Lake County, Indiana, acting under

color of the laws of the State of Indiana, did willfully sub-

ject Larry Laban Smith, an inhabitant of the State of

Ohio, to the deprivation of the right secured and protected

by the Fourteenth Amendment to the Constitution of the

United States not to be deprived of property without due

process of law, as hereinafter more fully set forth:.

On or about February 28, 1967, the judge of the Lake

County Criminal Court found Larry Laban Smith to be

without funds, and appointed pauper attorney Nick Senak

to represent him. Notwithstanding his appointment as

pauper attorney, in or about March of 1967 Nick Senak

App. 43

willfully and unlawfully exacted and took approximately

$400.00 from Larry Laban Smith, by representing to Smith

that a payment of money to him (Senak) was required,

or he would not adequately represent Smith in connection

with that same matter as to which Senak had already been

appointed to represent Smith as pauper attorney; and

Nick Senak did thereby willfully deprive Larry Laban

Smith of property without due process of law.

In violation of 18 U.S.C. $242.

COUNT II

In or about October, 1966 in Lake County, Indiana,

Nick Senak, who was then and there serving as duly ap-

pointed pauper attorney of Lake County, Indiana, acting

under color of the laws of the State of Indiana, did will-

fully subject James Cadle, an inhabitant of the State of

Michigan, to the deprivation of the right secured and pro-

tected by the Fourteenth Amendment to the Constitution

of the United States not to be deprived of property with-

out due process of law, as hereinafter more fully set forth:

In or about September 1966, the judge of the Lake

County Criminal Court found Hobart Cadle, the father

of James Cadle, to be without funds, and appointed pauper

attorney Nick Senak to represent him. Notwithstanding

his appointment as pauper attorney, in or about October

of 1966 Nick Senak willfully and unlawfully exacted and

took approximately $100.00 from James Cadle, by repre-

senting to James Cadle that a payment of money to him

(Senak) was required or he would not adequately represent

Hobart Cadle in connection with that same matter as to

which he had already been appointed to represent him as

pauper attorney; and Nick Senak did thereby willfully

deprive James Cadle of property without due process of

law.

In violation of Title 18 U.S.C. §242.

App. 44

COUNT III

In or about November, 1966, in Lake County, Indiana

Nick Senak, who was then and there serving as duly ap-

pointed pauper attorney of Lake County, Indiana acting

under color of the laws of the State of Indiana did will-

fully subject Willie Drake, an inhabitant of the State of

Illinois, to the deprivation of the right secured and pro-

tected by the Fourteenth Amendment to the Constitution

of the United States not to be deprived of property with-

out due process of law, as hereinafter more fully set forth:

In or about October, 1966, the judge of the Lake County

Criminal Court found Ernest Drake, nephew of Willie

Drake, to be without funds, and appointed pauper attorney

Nick Senak to represent him. Notwithstanding his ap-

pointment as pauper attorney, in or about November, 1966

Nick Senak willfully and unlawfully exacted and took ap-

proximately $180.00 from Willie Drake, by representing to

Willie Drake that a payment of money to him ( Senak) was

required, or he would not adequately represent Ernest

Drake in connection with that same matter as to which he

had already been appointed to represent him as pauper

attorney; and Nick Senak did thereby willfully deprive

Willie Drake of property without due process of law.

In violation of Title 18 U.S.C. § 242.

COUNT IV

In or about May, 1968, in Lake County, Indiana; Nick

Senak, who was then and there serving as duly appointed

pauper attorney of Lake County, Indiana, acting under

color of the laws of the State of Indiana, did willfully sub-

ject Honore Gilarski, an inhabitant of the State of Indiana

to the deprivation of the right secured and protected ty

eo

App. 45

the Fourteenth Amendment to the Constitution of the

United States not to be deprived of property without due

process of law, as hereinafter more fully set forth:

In or about September, 1967, the judge of the Lake

County Criminal Court found Steve Laposi, a friend of

Honore Gilarski, to be without funds, and appointed pauper

attorney Nick Senak to represent him. Notwithstanding

his appointment as pauper attorney, in or about May of

1968, Nick Senak willfully and unlawfully exacted and

took approximately $800.00 from Honore Gilarski, by repre-

senting to her that a payment of money to him ( Senak)

was required, or he would not adequately represent Steve

Laposi in connection with that same matter as to which

he had already been appointed to represent him as pauper

attorney; and Nick Senak did thereby willfully deprive

Honore Gilarski of property without due process of law.

In violation of Title 18 U.S.C. §242.

COUNT V

In or about September, 1967, in Lake County, Indiana,

Nick Senak, who was then and there serving as duly ap-

pointed pauper attorney of Lake County, Indiana, acting

under color of the laws of the State of Indiana, did will-

fully subject Victor Neier, an ‘nhabitant of the State of

Indiana, to the deprivation of the right secured and pro-

tected by the Fourteenth Amendment to the Constitution

of the United States not to be deprived of property with-

out due process of law, as hereinafter more fully set forth:

On or about May 18, 1967, the judge of the Lake County

Criminal Court found Claude Neier, the son of Victor

Neier, to be without funds and appointed pauper attorney

Nick Senak to represent him. Notwithstanding his ap-

App. 46

pointment as pauper attorney, in or about September of

1967 Nick Senak willfully and unlawfully exacted and took

approximately $300.00 from Victor Neier, by represent-

ing to him that a payment of money to him (Senak) was

required, or he would not adequately represent Claude

Neier in connection with that same matter as to which he

had already been appointed to represent him as pauper

attorney; and Nick Senak did thereby willfully deprive

Victor Neier of property without due process of law.

In violation of Title 18 U.S.C. §2492.

Julius J. Valberg

Foreman

William C. Lee

William C. Lee

United States Attorney

App. 47

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Lllinois 60604

November 25, 1975

Before

Hon. TOM C. CLARK, Associate Justice*

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 74-1965 vs.

NICK SENAK,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

Robert A. Grant, Judge

No. 73-S-CR-39

On consideration of the petition of the defendant-appel-

lant, Nick Senak, for a rehearing by the court in the above-

entitled appeal, and no member of the panel and no judge

in regular active service having requested that a vote be

taken on the suggestion for an en banc rehearing, and the

panel having voted to deny a rehearing,

IT LS ORDERED that the petition of the appellant for

a rehearing in the above-entitled appeal be, and the same

is hereby denied.

*Associate Justice Tom C. Clark (Retired) of the Supreme Court

of the United States is sitting by designation.