Opposition — Markham v. United States

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UNITED STATES OF AMERICA _ Redes :

: av v letirron FORA wire OF CERTIORA RI TO

- «THE UNITED STATES COURT OF APPEALS FOR

| THE des CIRCUIT ;

BRIEF FOR THE UNITED ae IN erate

” oo . 7

Rosen H. Bork,

: Fo Solicitor General, Mea

= hag DONALD I. BakerR, Aes

: : Assistant Attorney General,

i BARRY GROSSMAN,

| | Ron M. LANDSMAN,

a : Attorneys,

i | Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-564

E. L. MARKHAM, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. I,

pp. 1-12) is reported at 537 F. 2d 187.

JURISDICTION

The judgment of the court of appeals was entered on

August 18, 1976. A petition for rehearing was denied on

September 22, 1976. The petition for a writ of certiorari

was filed on October 22, 1976. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Whether the district court abused its discretion

by curtailing the cross-examination of two witnesses.

2. Whether the evidence is sufficient to support the

conviction.

(1)

2

3. Whether the indictment informed petitioner of the

elements of the offense.

4. Whether there was a variance between the indict-

ment and the proof.

5. Whether 18 U.S.C. 1001 is unconstitutionally vague.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Texas, petitioner was

convicted of covering up and concealing from the Patent

Office the true inventor of improvements claimed in a

patent application, in violation of 18 U.S.C. 1001. Peti-

tioner was sentenced to two years’ probation and fined

$5,000. The court of appeals affirmed. The facts are

adequately stated in the court of appeals’ opinion (Pet.’

App. |, pp. 2-5).

ARGUMENT

1. Petitioner argues that the district court abused its

discretion by curtailing the cross-examination of two

witnesses. These arguments are unsound.

a. The court sustained an objection te the question,

asked of a patent attorney, whether the attorney found

in his conferences with petitioner “any evidence [that

petitioner sought] by trick, scheme, or device, to with-

hold information from the Patent Office” (Pet. 10).

Petitiorer argues that the answer to this question would

have been admissible under Fed. R. Evid. 704, which

permits opinion testimony. Rule 704 does not, however,

require the court to admit every proffered opinion. It

authorizes the use of opinion testimony only when “other-

wise admissible.” Admission of expert opinions is subject

to the discretion of the trial court, and its rulings are

to be sustained unless “manifestly erroneous.” Salem v.

United States Lines Co., 370 U.S. 31, 35. In this case,

3

as the court of appeals held, the question was repe-

titious; it was “no more than a rephrasing of questions

already put by defense counsel to the witness, and answered

by him without objection” (Pet. App. |, p. 12). Peti-

tioner does not challenge this assessment, and it supports

the district court’s decision.

b. The trial court also declined to permit extended

cross-examination of Orlando Klein, the true inventor,

concerning the contents of letters Klein had written to

government officials. Petitioner sought to demonstrate

Klein’s bias against petitioner (Pet. 13), but the court

of appeals correctly held that petitioner already had

been allowed ample opportunity to show Klein’s bias.

Indeed, it found that bias had been “fully established,”

and that the district court had permitted questioning

“to the outer limits of permissible inquiry” (Pet. App.

1, p. 11). There is no reason for this Court to review

this factual assessment.

2. The evidence, now taken, together with all reasonable

inferences, in the light most favorable to the prosecution

(Glasser v. United States, 315 U.S. 60, 80) is ample to

support the conviction. It demonstrated, as the court of

appeals showed (Pet. App. 1, pp. 2-5, 8-10), that peti-

tioner, who well knew that Klein invented the “Drycore”

system, represented on three occasions to the Patent

Office that others had invented the system, and that

petitioner willfully concealed or covered-up Klein’s role in

the invention even after the other purported “inventors”

had disclaimed the invention. Petitioner argues (Pet. 13-

14) that the court of appeals did not follow precedent set

by other panels of that court,' but such an intra-

'Petitioner is incorrect in stating that the decision in this case

departs from Fifth Circuit law. The one case petitioner cites

(Pet. 14) holding that the evidence must exclude every reasonable

4

circuit conflict would be for that court to resolve.

Wisniewski v. United States, 353 U.S. 901, 902.

3. Petitioner’s contention that the indictment is in-

sufficient does not withstand analysis.2 The indictment

specified that petitioner concealed the material fact that

Roberts and Shipley (the asserted inventors) “made no

inventive contribution at all to some of the improve-

ments * * * claimed in the patent application, including

that covered by one or more of the following claims:

14, 17, 22 and/or 24” (Pet. App. 3, p. 3). This allega-

tion is explicit. No more is needed, as the court of

appeals explained (Pet. App. 1, p. 7):

The indictment specified that the building process

was developed by Klein, that [petitioner] knew this,

and that [petitioner] knowingly and willfully mis-

represented to the Patent Office that Shipley and

Roberts were the true inventors. The indictment

charged much more than that somewhere within the

hypothesis consistent with innocence was wrongly decided (Holland

v. United States, 348 U.S. 121, 139-140) and has not been fol-

lowed. See, e.g., United States v. Bass, 490 F. 2d 846, 855

(C.A. 5); United States v. Warner, 441 F. 2d 821, 825 (C.A.

5), certiorari denied, 404 U.S. 829; United States v. Diez, 515 F.

2d 892, 902 (C.A. 5), certiorari denied, 423 U.S. 1052; United

States v. Parr, 516 F. 2d 458, 463-464 (C.A. 5); United States

v." Reynolds, 511 F. 2d 603, 606 (C.A. 5); United States v.

Smith, 523 F. 2d 771, 774 (C.A. 5), certiorari denied, October

4, 1976, No. 75-1451.

?Petitioner appears to argue that the sufficiency of the indictment

rests entirely on Paragraph 8 (Pet. 14). However, that paragraph

is but one of three substantive paragraphs, each supplying a

different part of the charge. Paragraph 7 contains the elements

of the offense charged, Paragraph 8 contains the material facts

alleged to have been concealed, and Paragraph 9 contains the

acts done by petitioner to effectuate the concealment (Pet. App. 3,

pp. 3-5). Paragraphs 4 and 5 also contain significant factual

averments (Pet. App. 3, p. 2). The validity of the indictment is

determined by reading the indictment as a whole. Dunbar v. United

States, 156 U.S. 185, 190.

5

lengthy patent application there lay an unidenti-

fied idea attributable to Klein which [petitioner]

concealed from the government.

4. Petitioner argues that there was a variance between

the indictment, which alleged concealment of material

facts from the Patent Office, and the proof. Petitioner

contends that the government proved false representa-

tion (also prohibited by 18 U.S.C. 1001), although he

does not say the government failed to prove concealment.

In support -of this argument, he quotes language from the

prosecutor's closing argument and asserts: “Thus did

the government base its case on falsity” (Pet. 15).

The argument misunderstands the nature of the crime.

As the court of appeals noted, “{[c]oncealment and

falsity were bound together in the context here” (Pet.

App. |, p. 7). Concealment implies covering up the

truth, which can be done by omitting information and by

purveying lies or misleading stories. Here petitioner

concealed the identity of the true inventor by asserting

under oath that two other people were the true inventors.

Petitioner cites no facts in the indictment that the

government failed to prove. That the government may have

proved that part of the concealment was brought about

by lying does not show a variance.

5. Finally, petitioner’s contention that 18 U.S.C. 1001

is unconstitutionally vague (Pet. 16) is both untimely

and unsound. The issue was not raised below, and there

is no reason to consider it now. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 147 n. 2. Moreover, the argu-

ment is insubstantial. Cf. United States v. Powell,

423 U.S. 87. Section 1001 proscribes activities long held

to be culpable, in terms heavy with common law elabor-

ation. Cf. Rose v. Locke, 423 U.S. 48. It makes illegal

the knowing and willful concealment of. material facts

6

in dealings with government agencies. Its requirement of

specific intent relieves the statute of any possible un-

certainty. Papachristou v. City of Jacksonville, 405 U.S.

156, 163; Screws v. United States, 325 U.S. 91, 101-

107.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

DONALD I. BAKER,

Assistant Attorney General.

BARRY GROSSMAN,

RON M. LANDSMAN,

Attorneys.

DECEMBER 1976.

DO)-1976-12