Petition — Short v. United States

Ie, Supreme a .

(_ FII

i

IN THE

Supreme Court of the United States —

OCTOBER TERM, 1976

Nn. 26-1099

LORENZA SHORT,

Petitioner-Appellant,

UNITED STATES OF AMERICA,

Respondent-Appellee.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HENRY J. ROSENBAUM

Polasky, Meisel, Roseubaum

& Meyer

141 Harrow Lane

Saginaw, Michigan 48603

Telephone: (517) 793-9960

JEROME E. BURNS

Attorney at Law

4371 State Street

Saginaw, Michigan 48603

Attorneys for Petitioner-Appellant.

Dated: February , 1977

Washington, D.C. ¢ CLB PUBLISHERS’ « LAW PRINTING CO. e (202) 393-0625

va

(i)

TABLE OF CONTENTS

Page

EE rr ee ii

se aes eK eo l

SeAvemeeres OF FURESDICTION ..w wc ccc ccc ccees 2

i ee oo ka pce we necks eet 2

CONSTITUTIONAL PROVISION INVOLVED ......... 3

UMEMUNGE GEE WOME GIES gb cece ccc cee esccsees 3

REASONS FOR GRANTING THE WRIT:

The Decision Below Is In Direct Conflict With

The Decisions Of This Court Excluding In-

criminating Evidence Of Extrajudicial State-

ments Of A Co-Defendant Who Is Not Subject

To Cross-Examination And Who Could Have

Been Made Available As A Witness ............... 7

Harmless Error Exception Inapplicable ............ 8

Co-Conspirator Exception Inapplicable ............ 10

Cr Sc. cr stewed Pekka svn e oak eth wens s 12

eC eee aw eas u de VA ke Eek ehe es la

(ii)

INDEX OF AUTHORITIES

Cases: Page

Brookhart v. Janis, 384 U.S. 1 (1966) ............... 7

Bruton v. U.S., 391 U.S. 123 (1968) ................ 6,7

Chapman v. California, 386 U.S. 18 (1967) ......... 2,7,8,9

Douglas v. Alabama, 380 U.S.415 (1965) ............. 7

Dutton v. Evans, 400 U.S. 74 (1970) .............. 10,11

Fahy v. Connecticut, 375 U.S. 84 (1963) ........... 8,9,12

Harrington v. California, 395 U.S. 250 (1969) .......... 8

Hawkins v. U.S., 358 U.S. 574 (1958) .............-. 4

Ivey v. U.S., 344 F.2d 770 (CAS 1965) .............. 4

Peek v. U.S., 321 F.2d 934 (CA9 1963) .............. 4

Roberts v. Russell, 392 U.S. 293 (1968) ............. 7

Stewart v. Cowen, 528 F.2d 79 (CA6 1976) ........... 1]

U.S. v. Kelly, 526 F.2d 615 (CA8 1975) cert. den.

5 Ra eae eee en ee 11

U.S. v. Snow, 521 F.2d 730 (CA9 1975) cert. den.

Cr ius ade eee Pees aide ey II

USS. v. Yates, 524 F.2d 1282 (CA D.C. 1975) ......... II

Constitution:

i gr cata nd were eli oy oe

Statutes:

I, Ma a ee hee 6,11

Eo Ne ee a ae en 3

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1976

No.

LORENZA SHORT,

Petitioner-Appellant,

UNITED STATES OF AMERICA,

Respondent-Appellee.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner, Lorenza Short, respectfully prays that

a writ of certiorari issue to review the Order of the

United States Court of Appeals for the Sixth Circuit

entered in this proceeding on December 13, 1976, and

the Order of said Court denying the petition for

rehearing, entered January 10, 1977.

OPINION BELOW

The following unpublished orders are appended for

the convenience of the Court:

a. The Order of the Sixth Circuit Court of

Appeals, affirming the judgment of the District

Court, December 13, 1976.

b. The Order of the Sixth Circuit Court of

Appeals denying the defendant-appellant’s petition

for rehearing, January 10, 1977.

STATEMENT OF JURISDICTION

The Order of the Court of Appeals for the Sixth

Circuit affirming the judgment of conviction was

entered on December 13, 1976. Appellant-Petitioner’s

timely filed petition for rehearing was denied on

January 10, 1977. This petition for certiorari is filed

within 30 days of that date. Petitioner’s Motion for

Stay of the Mandate for a period of 30 days was

granted by the Court of Appeals for the Sixth Circuit

on January 19, 1977. This Court’s jurisdiction is

invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

By affirming a conviction based upon admission of

incriminating extrajudicial statements of petitioner’s

spouse, where he was denied both confrontation of the

available declarant and a requested cautionary in-

struction, did the Court of Appeals for the Sixth

Circuit erroneously refuse to apply the Sixth Amend-

ment to the United States Constitution and _ the

standards of Chapman y. California, 386 U.S. 18 (1967)

that the Court must find the prosecution has met the

burden of showing such constitutional error to have

been harmless beyond a reasonable doubt before the

conviction may be allowed to stand?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution:

Amendments, Article VI—In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public

trial, by an impariial jury of the state and district

wherein the crime shall have been committed, which

district shall have been previously ascertained by law,

and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses

in his favor, and to have the assistance of counsel for

his defense.

STATEMENT OF THE CASE

(Appendix refers to the Appendix filed in the Circuit

Court of Appeals for the Sixth Circuit).

Petitioner, Lorenza Short, was convicted of four

counts of income tax evasion under 26 U.S.C. §7201

for calendar years 1967-1970.

It was the defense contention that Short had no

knowledge of the contents of the returns, was unaware

that they were substantially deficient, and had not

committed the affirmative attempt charged of doing

and causing to be done the preparation, signing and

mailing of the returns, knowing them to be false. He

erroneously assumed his wife was adequately and

properly taking care of them.

During the prosecution case Mrs. Marie Evans, the

return preparer, testified that she prepared returns from

information supplied by Mrs. Short. All her dealings

were with Mrs. Short and none with Petitioner. The

subject returns showed income from a restaurant,

apartments, rentals, a motel and “net gambling

income”. The income from all but the gambling was

determined by Mrs. Evans through records obtained

from Mrs. Short. Over defense cbjection, Evans was

permitted to testify to the statements of Mrs. Short

made while the gambling information was furnished by

her.’ It was clear that the return deficiencies stemmed

from an understatement of the gambling income.

The government’s case consisted solely of circum-

stantial evidence and the spouse’s_ extrajudicial

utterance? created the only link between petitioner and

knowledge of the contents of any of the four returns in

_ question.

The import of this testimony was that petitioner had

conveyed a false figure to his wife for inclusion in the

Q. “How did you determine gambling income?”

A. “This figure was given to me by Mr. and Mrs. Short.”

Q. “Can you explain that to us; how this figure came from

Mr. and Mrs. Short?”

A. “Well, | would cal! Mrs. Short about the gambling figure

that she was going to use for the current year and she

would say, ‘I! am going to check with Mr. Short’. So,

then she would call me back and give me the figure.”

J. “Did you ever get a figure in some other way for

gambling?”

A. “She would ask ‘What did we do last year?’—I never got

any figure from any other way, no.”

Q. “But sometimes you just testified that she would say to

you, ‘What did we report last year’?”

A. “Right.”

Q. “And what did she say then, if anything?”

A. “She would say ‘Let’s use the same thing’, or it might

be that she would lower it some, but she—they would

give me the figure.”

(Appendix pgs. 128-129)

2In the lower court this testimony was also objected to as a

violation of petitioner’s marital privilege. Hawkins v. U.S. 358

U.S. 574 (1958): Ivey v. U.S. 344 F.2d 770 (CAS 1965); Peek v.

U.S. 321 F.2d 934 (CA9 1963).

tax returns as net gambling income. It created an unfair

and overwhelming burden and one which the petitioner

should not have been required to overcome. Despite his

uncontested testimony in denial, the jury found he had

the requisite guilty knowledge.

The Assistant U.S. Attorney, in his closing argument,

pressed this very point.’

This was the sole evidence from which it could be

inf_rred that Short had provided information or had

any actual knowledge of the contents of the returns,

much less that such contents were fraudulent.

Other testimony established without contradiction

that Short did not sign any of the four allegedly

fraudulent returns. A government expert testified that

Mrs. Short had signed both names on each return. Short

3“Then, we get to the next element and this requires a certain

amount of consideration, a great deal of consideration. The

Government has to prove that he knew this money wasn’t being

reported. Here, I submit the evidence is only subject to one

interpretation and that is that the Defendant thought that he

could beat the State of Michigan and the Federal Government

out of his true and accurate tax liability.

We know of one, of two events which took place, one you

will recall a Mrs. Marie Evans testifying she prepared these

returns. She would have it pretty much prepared and when she

got to the part of the gambling she wouldn’t know what to put

down. She had occasion to call Mr. Short and Mrs. Short would

say, “I will have to check with Lorenzo” and at some later time

Mrs. Evans would get a figure to put down.

Now, we don’t really know what went on here. Did Lorenzo

give a figure that was as small as could be? Did he give her the

actual figure around $10,000.00 for each year except one year

when it was $16,000.00? We don’t know. He could have given

that small figure that was actually one. Why would Mrs. Evans

come here and lie to you? I don’t think she did. Why would

Mamie Short tell Marie Evans, the return preparer a story? There

was no criminal investigation going on and that seemed to be

pretty credible the way Marie Evans explained it.”

(Appendix pg. 158-159.)

was outside of the State of Michigan when the returns

were prepared and signed and, therefore, did not

examine them.

Short denied he ever furnished the gambling income

figure to Mrs. Short. He assumed she was properly

taking care of the return obligations and that she had

adequate information from her awareness of his

activities. He had no knowledge of any contents.

Short’s reading and mathematical abilities were

professionally tested and found to be at the lowest

elementary school level.

Despite a timely objection to the Evans testimony,

and a subsequent motion for a mistrial, both based

upon, and with reference to, the decision in Bruton vy.

U.S., 391 U.S. 123 (1968), the Evans testimony was

admitted and allowed to remain before the jury without

any cautionary instruction as to its use.

Petitioner, Short, sought to call his spouse for

examination. Such examination was denied when she

claimed her constitutional ight against _ self-

incrimination. Neither the Court nor the government

offered her use immunity (18 U.S.C. §6001-6003) so

that the firsthand testimony would be available to the

petitioner in his defense.

A written defense request* that the jury be

instructed to disregard the testimony was refused. This

request was renewed in open court and denied by the

judge.

*C. (The Court has heretofore over-ruled Defendant’s motion

for a mistrial on the grounds that the statement of Mrs. Marie

Evans to the effect that Mamie Short told her that she would get

the figure for net gambling income from the Defendant, Lorenza

Short, is inadmissible heresay (sic) and said Defendant was

denied the constitutional right of confrontation of the

Co-Defendant, maker of this extra judicial statement. Bruton vy.

U.S. 391 U.S. 123, 30 L.Ed.2d 476, 88 S.Ct. 1620. The following

request for instruction is not a Waiver of Defendant’s claim for

({continucd)

7

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW IS IN DIRECT

CONFLICT WITH THE DECISIONS OF

THIS COURT EXCLUDING INCRIMINA-

TING EVIDENCE OF EXTRAJUDICIAL

STATEMENTS OF A CO-DEFENDANT WHO

IS NOT SUBJECT TO CROSS-EXAMINA-

TION AND WHO COULD HAVE BEEN

MADE AVAILABLE AS A WITNESS.

Bruton v. U.S., supra, Douglas v. Alabama, 380 U.S.

415 (1965), Brookhart v. Janis, 384 U.S. 1 (1966),

Chapman v. California, supra, Roberts v. Russell, 392

U.S. 293 (1968),

The declarant spouse’s own explanation of the truth

and meaning of the statement was unavailable to the

defendant even though he expressly called her as a

witness. He was further denied the opportunity to

directly test her statement’s credibility under oath and

in the presence of the jury.

(footnote continued from preceding page)

mistrial since Defendant believes that the jury is unable to ignore

such testimony even with an instruction.)

At an earlier stage in the proceedings, Mrs. Marie Evans

testified that the Defendant, Mamie Short, told her that

she, Mamie Short, would have to get a figure as to

gambling income from the Defendant, Lorenza Short, and

that later, Mrs. Short did transmit such figure. This

testimony is not admissible against the Defendant, Lorenza

Short, and may not be considered by you in the case

against him. You must treat such testimony as if it did not

exist since the Defendant has not had the opportunity in

this trial to cross-examine the declarant, Mrs. Short, to

determine from her testimony if in fact she claims to have

received said information from the Defendant, Lorenza

Short.

(Appendix pgs. 55-56)

Admission of such evidence is plain and fundamental

error requiring the conviction to be set aside unless the

case falls within a specific exception. No such exception

was found by the Court below nor did it declare the

objectionable statement to be admissible.

HARMLESS ERROR EXCEPTION

INAPPLICABLE

One such exception suggested by the government,

but not adopted by the Court of Appeals for the Sixth

Circuit was that the effect of the improper evidence

was merely cumulative. To the contrary, in this case,

built upon circumstantial evidence, this evidence was

crucial and furnished, by inference, the sole direct link

between Short and the preparation of the returns

and/or knowledge of their contents.

Before an error such as this may be classified as

“harmless” and merely “cumulative” there must be a

cautionary instruction. Harrington v. California, 395

U.S. 250 (1969). In the present case both written and

verbal defense requests for such an instruction were

denied and the jury was improperly allowed to consider

the spouse’s extrajudicial statements as if they were

evidence of defendant’s guilt.

Further, the government has a substantial burden to

bear before the defendant’s conviction may be allowed

to stand. Chapman vy. California, supra, Fahy yy.

Connecticut, 375 U.S. 84 (1963).° It is the burden of

s“We prefer the approach of this Court in deciding what was

harmless error in our recent case of /ahy v. Connecticut, 375

U.S. 84, 11 L.Ed.2d 171, 84 S.Ct. 229. There we said: ‘The

question is whether there is a reasonable possibility that the

evidence complained of might have contributed to the

conviction.” *’ Chapman v. California, supra, pg. 23.

Send

the government to establish beyond a reasonable doubt

that the error was harmless and that there was no

reasonable possibility that the evidence complained of

might have contributed to the conviction.

Despite the written motion for new trial citing this

issue, submitted to the District Court after the jury

verdict, and the appeal to the Sixth Circuit Court of

Appeals, neither Court has ever suggested that this

standard could possibly be met under the facts of this

case. Chapman vy. California, supra, mandates an

affirmative finding of the Court that the burden has

been met. At no time has the Respondent ever

specifically detailed ‘‘overwhelming” evidence which

could meet the standard of Chapman and Fahy, supra,’

nor has the court below ever declared a belief that the

®“We, therefore, do no more than adhere to the meaning of

our Fahy Case when we hold, as we now do, that before a

federal constitutional error can be held harmless, the court must

be able to declare a belief that it was harmless beyond a

reasonable doubt.”. Chapman v. California, supra, pg. 24.

7The Respondent’s primary evidence on the subject of Short’s

imputed knowledge and intent was to be inferred from testimony

pertaining to two other audits of the defendant, each unrelated

in time and one also unrelated in nature. Ralph F. Childs, IRS

Tax Accountant, testified that a monetary entry in documentary

exhibits (9J, 9K and 9L) showed the Shorts had been the subject

of fifty-percent penalties for “fraud” on their 1950, 1951 and

1952 U.S. Income Tax Returns. A defense objection (Appendix

pgs. 76-77) was overruled. The penalties were an uncontested

administrative assessment of civil liability for periods 15-17 years

prior to those years under indictment.

Joseph C. Walsh, an employee of the Michigan Department of

Treasury was permitted, over defense objection to relevance and

its inflammatory nature, to testify to an audit of the Shorts for

Michigan Business Activities taxes and Sales taxes for 1958-1961.

The audit was for periods 6-9 years earlier than those in the

eorliest indictment year. The State of Michigan did not have a

State income tax until 1967.

Admission of the above evidence was raised as an issue in the

Court below but received no comment.

10

extrajudicial statements of petitioner’s spouse were

harmless beyond a reasonable doubt and could not

reasonably have contributed to the conviction.

Because the respondent’s burden has not been met,

the conviction should be overturned.

CO-CONSPIRATOR EXCEPTION

INAPPLICABLE

In its brief to the Court of Appeals for the Sixth

Circuit, Respondent suggested, for the first time, that

the Evans’ testimony qualified as an exception to the

constitutional right of confrontation as an extrajudicial

statement of a co-conspirator in accordance with this

Court’s opinion in Dutton y. Evans, 400 U.S. 74

(1970). In Dutton, a 5-4 decision, a plurality of four

justices announced a standard within which the

extrajudicial statement of a co-conspirator would be

admissible despite the lack of confrontation. Neither

Court below made any determination or suggestion that

this exception was pertinent or material to this case. No

conspiracy was alleged in the indictment and there was

no evidence aliunde from which a conspiracy to commit

an unlawful act could be implied since there was no

evidence to show Short knew the information furnished

by his spouse was fraudulent (if in fact it was since she

never testified whether or not she knew the returns

were false when she filed them).

Even if the necessary evidence aliunde of the

conspiracy were found to exist, despite the lower

court’s failure to so find, the three mandatory standards

set by this Court in Dutton y. Evans, supra have not

been met.

(1) There must be an indicia of reliability sur-

rounding the extrajudicial statement;

(2) The extrajudicial statement must be peripheral

rather than crucial or devastating;

(3) The witness must be equally available to the

prosecution and the defense; Dutton v. Evans, supra,

U.S. v. Snow, 521 F.2d 730 (CA9 1975), cert. den. 423

U.S.-1090; U.S. v. Kelley, 526 F.2d 615 (CA8 1975)

cert. den. 96 S.Ct. 1471; U.S. v. Yates, 524 F.2d 1282

(CA D.C. 1975).

Clearly the third requirement of Dutton vy. Evans,

supra, that the witness be equally available to the

prosecution and the defense is lacking. The Respondent

could have granted the witness “‘use immunity” under

18 U.S.C. §6901-6003 at little cost to itself but failed

to do so, thus denying Short this important defense

testimony. This alone is sufficient for reversal U.S. y.

Yates, supra. The Constitution imposes .upon the

prosecution the unavailability of a witness before it

may introduce less reliable accounts of his statement in

a criminal trial. Stewart v. Cowen, 528 F.2d 79 (CA6

1976).

The indicia of reliability is missing in that the

offending testimony tends to exculpate the declarant

spouse in some respects at the expense of inculpating

the petitioner, Short.

Further, on the facts of this case, the testimony is

crucial and not merely peripheral where it provides the

sole link between Short and the actual furnishing of

false information for use in the return. The lower court

was itself concerned with sufficiency of the evidence as

expressed in the general language of its opinion

attached hereto. In. this case, constructed entirely or

circumstantial evidence, the spouse’s statement showing

participation of the defendant in the preparation of the

returns was severely and prejudicially damaging.

Finally, it should be pointed out that the co-con-

spirator exception to the general rule of confrontation

12?

_

rights is not yet firmly entrenched in our law. Speaking

for the minority in dissent, Mr. Justice Marshall stated

Dutton v. Evans, supra, Pg. 111: )

“The incriminatory extrajudicial statement of an

alleged accomplice is so inherently prejudicial that

it cannot be introduced unless there is an

Opportunity to cross-examine the declarant

whether or not his statement falls within a genuine

exception to the hearsay rule.”

In general the use of such statements is viewed with

grave suspicion and caution even by those who would

admit them in limited circumstances. A conviction

should not be allowed, as in this case, to substantially

rest on the use of such evidence.

CONCLUSION

For these reasons a writ of certi i

orari should issue to

review the Orders of the Court of Appeals for the Sixth

Circuit affirming petitioner’s icti

cu conviction and denyi i

petition for rehearing. es

Respectfully submitted,

HENRY J. ROSENBAUM

Polasky, Meisel, Rosenbaum

& Meyer

141 Harrow Lane

Saginaw, Michigan 48603

Telephone: (517) 793-9960

JEROME E. BURNS

Attorney at Law

4371 State Street

Saginaw, Michigan 48603

la

NO. 76-1614

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA §: Jon bre Ley

5 acer NP ye 13

Plaintiff-Appellee Hep Hy 1976

N

v. . LER,

LORENZA SHORT :

Defendant-Appellant : ORDER

and

MAMIE O. SHORT

Defendant

Before: PHILLIPS, Chief Judge, and PECK and

ENGEL, Circuit Judges.

This appeal, perfected from a judgment of conviction

entered on jury verdict finding defendant-appellant

guilty of four counts of attempted income tax evasion

in violation of Section 7201 of the Internal Revenue

Code, has been submitted on the record on appeal and

on the briefs and oral arguments of counsel.

It is apparent from the record that counsel for the

Internal Revenue Service have in what appears to be

their routine customary operation abused the subpoena

process in a procedure which requires members of the

public to absent themselves from their places of

employment to appear for interrogation for investigative

rather than testimonial purposes at such times as may

suit counsel’s convenience without regard to their own.

While this abuse introduces an element of unfairness

since no corresponding privilege is enjoyed by defense

counsel who also lack the extensive investigative

resources available to government agencies, United

States v. Keen, 509 F.2d 1273, 1274-5 (6th Cir. 1975),

Rule 17 Federal Rules of Criminal Procedure, no

2a

prejudice as a result of such abuse has been shown in

the present case.

It is further concluded that whatever deficiences may

have existed in the appellee’s case in chief in

connection with its attempt to prove that in doing

certain acts appellant’s wife acted as his agent were

supplied by the subsequent testimony of the appellant,

and it is noted that no motion for a judgment of

acquittal was made at the conclusion of the appellee’s

case. It having been determined that the other

contentions offered by the appellant are without merit.

IT IS ORDERED that the judgment of the district

court be and it hereby is affirmed.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

John P. Hehman, Clerk of Court

3a

NO. 76-1614

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA : , atthe

Plaintiff-Appellee OHN p 1 10 195,

: “HM AN,

LORENZA SHORT : ORDER

Defendant-Appellant

and

MAMIE O. SHORT

Defendant

Before: PHILLIPS, Chief Judge, and PECK and

ENGEL, Circuit Judges.

Defendant-appellant’s petition for rehearing having

come on to be considered and of the judges of this

Court who are in regular active service less than a

majority having favored ordering consideration en banc,

the petition has been referred to the panel which heard

the appeal, and it further appearing that the petition

for rehearing is without merit,

IT IS ORDERED that the petition be, and it hereby

is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk of Court