Petition — Klein v. United States

Supreme N

FEB 241977

IN THE

WCW ROARK IR. CLERK

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1173

ALVIN KLEIN,

Petitioner

v.

UNITED STATES OF AMERICA.

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIVINGSTON, MILLER, O’MALLEY & CLARK

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

205 Ross Street

Pittsburgh, Pennsylvania 15219

SMITH BROS... LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

TABLE OF CONTENTS

PAGE

Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit .............. 1

n 2

D ̃ ͤ e.. oneal 2

r, ae SI Tay a eR 3

Constitutional Provision Involve ll 4

rr ee eM NE aE 5

, cs Sialpinendboanentaantl 10

Reasons for Granting the Write 16

e ain NERS .... SPE PF Boe AP ROD 32

Appendix A—Opinion and Order of the United

States Court of Appeals for the Sixth Circuit

affirming the Judgment of Conviction .................. la

Appendix B—Order of the United States Court of

Appeals for the Sixth Circuit denying the Pe-

e ccidaueibaniessoncii 16a

Appendix C—Certificate of Servicſtde 17a

TABLE OF CITATIONS

CASES

American Tobacco Company v. United States, 328

et eeenD 19

Blockburger v. United States, 284 U.S. 299, 52 S.Ct.

BE EE acc acccnblsiaatommoncnmseniisnnion’ 3, 16, 19, 20, 22, 23

Costello v. United States, 350 U.S. 359, 76 S.Ct. 406

I iis sa a ct lal cic ecnacddematmas obese telnisecmndinnen 26

rh 22, 23

TTT 19

ee eee eee eee age 19, 22

ii

Table of Citations.

PAGE

Nye & Nissen v. United States, 336 U.S. 613, 69

I . 21

Pereira v. United States, 347 U.S. 1 (1954) 22

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270

aR EAA SEA IS RIE al a TS 29

Truchinski v. United States, 393 F. 2d 627 (8th Cir.

—— — ̃ ↄ . 27

United States v. Austin, 529 F.2d 559 (6th Cir.

RRR ñ 22, 23

United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613

%%% 26

United States v. Costello, 221 F. 2d 668 (2d Cir.

mne 27

United States v. Estepa, 471 F. 2d 1132 (2d Cir.

JJ 27-28

United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204

mmm eee 20

United States v. Hoffa, 349 F. 2d 20 (6th Cir.

1965), affd., 385 U.S. 293, 87 S.Ct. 40 26, 27

United States v. Ramirez, 482 F. 2d 807 (2d Cir.

men 28

Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364 (1962)

—̃ ũ·Bꝛ K’. hũ⁵³ʃb̃ 3 —2dreV9ſ7 9 9j97⁊ꝝ—ꝙ̃—ũ—ꝓ : r* ee eee eee eee ee ee eee ee

UNITED STATES CONSTITUTION

,,, .... TO 4, 23, 25

STATUTES

} ederal Rules of Criminal Procedure, Rule 5(c)......5, 28

Federal Rules of Criminal Procedure, Rule 60e)

c ( 6, 24, 30

Title 18, United States Code, Section 2. 7, 10, 11, 19, 21

Title 18, United States Code, Section 371. 7-8, 10

Title 18, United States Code, Section 13411. 8-11, 17

Title 18, United States Code, Section 1952.

P 9-11, 17, 19, 20, 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

ALVIN KLEIN,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Your petitioner, Alvin Klein, prays that a Writ

of Certiorari issue to review the Judgment of the United

States Court of Appeals for the Sixth Circuit entered

in the above captioned case.

Jurisdiction.

OPINIONS BELOW

An opinion was rendered by the United States

Court of Appeals for the Sixth Circuit in this matter.

Said opinion, affirming the district court’s judgment of

conviction, is not yet reported but is set forth herein at

Appendix A. The court of appeals’ order denying the pe-

tition for rehearing is not yet reported but is set forth

herein at Appendix B. No opinion was rendered by the

district court.

JURISDICTION

The opinion and order of the United States Court

of Appeals for the Sixth Circuit was filed on December

21, 1976. A petition for rehearing was denied on January

26, 1977. Pursuant to Rule 22 of the Rules of this Hon-

orable Court, the within Petition for Writ of Certiorari

is being filed within thirty (30) days after the entry of

the court of appeals’ final order.

The jurisdiction of this Honorable Court is invoked

under Title 28, United States Code, Section 1254(1).

Questions Presented.

QUESTIONS PRESENTED

I. Whether the trial court erred in sentencing peti-

tioner by imposing a five year sentence on count

one of the indictment and a consecutive five year

sentence on count three of the indictment since the

offenses charged in these counts merge and thus

separate punishment may not be imposed. Block-

burger v. United States, 284 U.S. 299, 52 S.Ct. 180

(1932) ?

II. Whether the trial court abused its discretion by re-

fusing to allow the production of transcripts of

testimony before the indicting grand jury, or to re-

view these transcripts in camera, in order to de-

termine if any evidence was presented or if the

indicting grand jury was merely “briefed” on what

occurred before the investigating grand jury?

Constitutional Provision Involved.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution of the

United States provides as follows:

No person shall be held to answer for a capital

or other infamous crime unless on a presentment

or indictment of a grand jury, except in cases aris-

ing in the land or naval forces, or in the militia,

when in actual service, in time of war or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public use

without just compensation.

Statutes Involved.

STATUTES INVOLVED

Rule (5) (e) of the Federal Rules of Criminal Pro-

cedure provides as follows:

(c) Offenses Not Triable by the United States

Magistrate. If the charge against the defendant is

not triable by the United States magistrate, the

defendant shall not be called upon to plead. The

magistrate shall inform the defendant of the com-

plaint against him and of any affidavit filed there-

with, of his right to retain counsel, of his right to

request the assignment of counsel if he is unable

to obtain counsel, and of the general circumstances

under which he may secure pretrial release. He shall

inform the defendant that he is not required to make

a statement and that any statement made by him

may be used against him. The magistrate shall also

inform the defendant of his right to a preliminary

examination. He shall allow the defendant reason-

able time and opportunity to consult counsel and

shall admit the defendant to bail as provided by

statute or in these rules.

A defendant is entitled to a preliminary ex-

amination, unless waived, when charged with any

offense, other than a petty offense, which is to be

tried by a judge of the district court. If the de-

fendant waives preliminary examination, the magis-

trate shall forthwith hold him to answer in the dis-

trict court. If the defendant does not waive the pre-

liminary examination, the magistrate shall schedule

a preliminary examination. Such examination shall

be held within a reasonable time but in any event

not later than 10 days following the initial ap-

Statutes Involved.

pearance if the defendant is in custody and no later

than 20 days if he is not in custody, provided, how-

ever, that the preliminary examination shall not

be held if the defendant is indicted or if an informa-

tion against the defendant is filed in district court

before the date set for the preliminary examination.

With the consent of the defendant and upon a

showing of good cause, taking into account the

public interest in the prompt disposition of criminal

cases, time limits specified in this subdivision may

be extended one or more times by a federal magis-

trate. In the absence of such consent by the de-

fendant, time limits may be extended by a judge of

the United States only upon a showing that extra-

ordinary circumstances exist and that delay is

indispensable to the interest of justice.

As amended Feb. 28, 1966, eff. July 1, 1966;

April 24, 1972, eff. Oct. 1, 1972.

Rule 6(e) of the Federal Rules of Criminal Pro-

cedure provides as follows:

(e) Secrecy of Proceedings and Disclosure.

Disclosure of matters occuring before the grand

jury other than its deliberations and the vote of any

juror may be made to the attorneys for the govern-

ment for use in the performance of their duties.

Otherwise a juror, attorney, interpreter stenogra-

pher, operator of a recording device, or any typist

who transcribes recorded testimony may disclose

matters occurring before the grand jury only when

so directed by the court preliminarily to or in connec-

tion with a judicial proceeding or when permitted by

the court at the request of the defendant upon a

showing that grounds may exist for a motion to dis-

Statutes Involved.

miss the indictment because of matters occurring be-

fore the grand jury. No obligation of secrecy may be

imposed upon any person except in accordance with

this rule. The court may direct that an indictment

shall be kept secret until the defendant is in custody

or has given bail, and in that event the clerk shall seal

the indictment and no person shall disclose the find-

ing of the indictment except when necessary for the

issuance and execution of a warrant or summons.

Title 18, United States Code, Section 2 provides as

follows:

§ 2. Principals

(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable

as a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another wouid

be an offense against the United States, is punish-

able as a principal. As amended Oct. 31, 1951, c. 655,

$ 17b, 65 Stat. 717.

Title 18, United States Code, Section 371 provides

as follows:

§ 371. Conspiracy to commit offense or to defraud

United States

If two or more conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner

or for any purpose, and one or more of such per-

sons do any act to effec’ the object of the conspiracy,

*

Statutes Involved.

each shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a misde-

meanor only, the punishment for such conspiracy

shall not exceed the maximum punishment provided

for such misdemeanor.

Title 18, United States Code, Section 1341, provides

as follows:

§ 1341. Frauds and swindles

Whoever, having devised or intending to devise

any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent

pretenses, representations, or promises, or ta sell,

dispose of, loan, exchange, alter, give away, dis-

tribute, supply, or furnish or procure for unlawful

use any counterfeit or spurious coin, obligation,

security, or other article, or anything represented

to be or intimated or held out to be such counter-

feit or spurious article, for the purpose of executing

such scheme or artifice or attempting so to do,

places in any post office or authorized depository for

mail matter, any matter or thing whatever to be

sent or delivered by the Postal Service, or takes or

receives therefrom, any such matter or thing, or

knowingly causes to be delivered by mail according

to the direction thereon, or at the place at which

it is directed to be delivered by the person to whom

it is addressed, any such matter or thing, shall be

fined not more than $1,000 or imprisoned not more

than five years, or both.

Statutes Involved.

As amended May 24, 1949, c. 139, § 34, 63 Stat. 94;

Aug. 12, 1970, Pub.L. 91-375, § 6(j) (11), 84 Stat.

778.

Title 18, United States Code, Section 1952 provides

as follows:

§ 1952. Interstate and foreign travel or transpor-

tation in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or

foreign commerce, including the mail, with intent

to—

(1) distribute the proceeds of any unlaw-

ful activity; or

(2) commit any crime of violence to

further any unlawful activity; or

(3) otherwise promote, manage, establish,

carry on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of any

unlawful activity.

and thereafter performs or attempts to perform any

of the acts specified in subparagraphs (1), (2), and

(3), shall be fined not more than $10,000 or im-

prisoned for not more than five years, or both.

(b) As used in this section “unlawful activity”

means (1) any business enterprise involving

gambling, liquor on which the Federal excise tax

has not been paid, narcotics, or controlled sub-

stances (as defined in section 102(6) of the Con-

trolled Substances Act), or prostitution offenses in

violation of the laws of the State in which they are

10

Statement of the Case.

committed or of the United States, or (2) extortion,

bribery, or arson in violation of the laws of the

State in which committed or of the United States.

(c) Investigations of violations under this sec-

tion involving liquor shall be conducted under the

supervision of the Secretary of the Treasury.

Added Pub.L. 87-228, § 1(a), Sept. 13, 1961, 75 Stat.

498 and amended Pub. L. 91-513, Title II, § 701(i)

(2), Oct. 27, 1970, 84 Stat. 1282.

STATEMENT OF THE CASE

History

On April 28, 1975, your petitioner, Alvin Klein, was

indicted at criminal number 75-097L in the United States

District Court for the Western District of Kentucky.

The indictment named six co-defendants and charged

these individuals with a total of fifteen counts which

alleged various violations of Title 18, United States Code,

Sections 2, 371, 1341 and 1952. Count one alleged that

from June 1, 1969 to April 28, 1975 in the Western

District of Kentucky and elsewhere, Klein and his co-

defendants unlawfully conspired and agreed to violate

18 U.S.C. 881341 and 1952, i.e., 1) to travel in interstate

commerce with intent, and thereafter perform acts, to

promote, manage, establish, carry on and facilitate the

promotion, management, establishment and carrying on

of the unlawful activity of arson; and 2) to use the United

States mails in furtherance of a scheme to defraud and

by means of fraud to obtain money from certain in-

surance companies, all in violation of 18 U.S.C. §371.

Counts two, three, four, five and six alleged that from

11

Statement of the Case.

May 1, 1970 to May 3, 1970 in the Western District of

Kentucky, Klein and his co-defendants did travel and

caused certain co-defendants and others to travel in

interstate commerce with intent, and thereafter perform

acts, to promote, manage, establish, carry on and facili-

tate the promotion, management, establishment and

carrying on of the unlawful activity of arson, all in

violation of 18 U.S.C. $$2 and 1952. Counts seven, eight,

nine, ten, eleven, twelve, thirteen, fourteen and fifteen

alleged that from June 1, 1969 to April 28, 1975 in the 3

Western District of Kentucky and elsewhere, Klein and

his co-defendants: 1) devised a scheme to defraud and

by means of fraud to obtain money from certain insur-

ance companies by means of false pretense, representa-

tions and promises; and 2) for the purpose of executing

the aforesaid scheme to defraud, did knowingly cause

the United States Post Office Department to deliver by

mail certain letters to and from insurance companies,

all in violation of 18 U.S.C. $$2 and 1341.

Prior to trial co-defendants Merrill H. Klein, Merle

Gottlieb and Hobart Darling entered pleas of guilty. A

jury trial of the indictment against co-defendants Alvin

Klein, Ivan Marra and James Fife was convened before

the Honorable Rhodes Bratcher, District Judge, on

October 6, 1975. On October 17, 1975, the jury found

Alvin Klein guilty as charged on ten counts of the indict-

ment (counts one, two, three, four, seven, eleven, twelve,

thirteen, fourteen and fifteen) and not guilty as charged

on five counts of the indictment (counts five, six, eight,

nine and ten).

On October 31, 1975, a Judgment and Commitment

Order was entered sentencing Alvin Klein to serve five

years as to count one and five years as to count three

12

Statement of the Case.

(to be served consecutively) and five years each as to

counts two, four, seven, eleven, twelve, thirteen, fourteen

and fifteen (to be served concurrently, each with the

other, and concurrently with the sentences imposed as to

counts one and three). Klein was also ordered to pay a

$7,500.00 fine as to each of counts one and three for a

total fine of $15,000.00.

The judgment of sentence was affirmed by the

United States Court of Appeals for the Sixth Circuit on

December 21, 1976; a petition for rehearing was denied

on January 26, 1977. The within Petition for Writ of

Certiorari follows.

FACTS

A.

The principal facts established through the testi-

mony and exhibits presented by the Government are as

follows:

‘From June 1, 1969 to May 9, 1973, the building

located at 1400-1406 West Broadway Avenue, Louis-

ville, Kentucky (“the building”), was owned or con-

trolled by Vienna Baking Company, Inc., and its wholly

owned subsidiary, Dixie Baking Company, Inc., said

corporations or businesses being entities in which peti-

tioner Alvin Klein had a financial interest. From June

14, 1968 to June 14, 1971, the building was insured

against loss by fire by the Hartford Insurance Group

under a policy issued to Alvin Klein and Burton Klein

doing business as Vienna Baking Company in the

amount of $400,000. On May 4, 1970, a fire occurred on

the premises resulting in the destruction of the build-

ing’s interior; it was opined that the fire was inten-

tionally set.

13

Statement of tre Case.

Hobart Darling, a co-defendant who had plead

guilty in this case prior to trial and who was incar-

cerated in federal prison for another matter at the time,

met in 1969 with co-defendants Merrill Klein (not re-

lated to Alvin Klein) and Merle Gottlieb, both of whom

had also plead guilty in this case, and planned the arson

destruction of the building. Alvin Klein consented to

the plan and provided $20,000. in cash to Darling for

payment to Merrill Klein who was to arrange the fire.

Alvin Klein promised an additional $20,000 after the

fire which Darling did receive and deliver to Merrill

Klein.

In January, 1970, Dixie Baking Company leased the

building in Louisville, Kentucky to the Palomar Tool

Company, a business venture owned and controlled by

co-defendant Ivan Marra, who also plead guilty in this

case. Marra and Merrill Klein planned to establish a

business in the building, burn it, and then receive money

from the phony insurance claims on their destroyed in-

ventory. On April 3, 1970, Marra obtained from the Fire-

man’s Fund Insurance Company a policy of insurance in

the name of Marra Industries covering the contents of

the building against loss by fire in the amount of

$115,000. Marra and Merrill Klein procured phony bill-

ings, invoices and receipts in order to inflate the value

of the building’s contents.

On May 4, 1970, Merrill Klein and others under his

direction set fire to the building. Several days later,

Carl Luick, who was aware of the planned fire and had

been referred by Darling and Merrill Klein, was hired

by Alvin Klein to act as the public adjustor on the claim

for the losses resulting from the fire. Luick also under-

took to represent Marra in regard to his elo ims. Con-

14

Statement of the Case.

cerning both claims, Luick forwarded by mail various

correspondence and oe including final Proofs of

Loss to the insurance panies involved. Alvin Klein’s

claim was for $395,195. while Marra’s claim totaled

$115,000. Subsequently, Alvin Klein discharged Luick.

The final settlement with Hartford Insurance Company

on the building itself was effected through Alvin Klein’s

attorney after litigation had commenced and Hartford

was completely satisfied that the name insured (Alvin

Klein) had not caused or brought about the fire; the

settlement figure was only $160,000. which caused a

“big loss” to Alvin Klein. Marra’s claim was never paid

by Fireman’s Fund Insurance Company because Marra

was unable to prove his loss.

The main points of the testimony and exhibits pre-

sented by petitioner Alvin Klein are as follows:

Alvin Klein denied ever meeting with anyone or

participating in any discussion concerning the planning

of a fire at his building in Louisville, Kentucky. He did

not agree to have the building burned, nor did he pay

anyone to do it. Klein first learned of the fire on the day

after it occurred; he was extremely upset at this news.

He was shocked when arson was recited as a defense

by Hartford during the course of the litigation involving

his company’s claim for damages to the building. The

fire proved to be a real disaster for Alvin Klein, his

brother Burton and their company; after the claim was

settled, total company and personal obligations on the

destroyed property for the Kleins totaled approximately

$490,000.

15

Statement of the Case.

Attorney Arthur Bloom represented the Kleins in

regard to their claim and effected the final settlement

with Hartford. The end result of the fire loss was a

serious drain on the Kleins’ personal and corporate

finances.

C.

Additional relevant facts will be set forth in detail,

where appropriate, in the argument amplifying the rea-

sons relied on for the allowance of the writ.

16

Reasons for Granting a Writ of Certiorari.

REASONS FOR GRANTING A WRIT OF

CERTIORARI

In the court of appeals, petitioner Klein argued that

the trial court erred in sentencing him by imposing a five

year sentence on count one of the indictment and a con-

secutive five year sentence on count three of the in-

dictment since the offenses charged in these counts

merge and thus separate punishment may not be

imposed. The court of appeals rejected this argument.

Klein now contends that the court of appeals’ decision

is in conflict with an applicable decision of this Honor-

able Court, Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180 (1932).

On October 13, 1975, Klein was sentenced as fol-

lows:

“FIVE YEARS as to Count 1 of the Indictment,

FIVE YEARS as to Count 3 of the Indictment, said

sentences to be served consecutively, each to the

other, for a total sentence of TEN YEARS. IT 18

FURTHER ORDERED AND ADJUDGED that the defend-

ant is committed to a FINE of $7,500.00 as to each

of Counts 1 and 3 of the Indictment, for a total fine

of $15,000.00 to be paid by the defendant.

“IT Is FURTHER ORDERED AND ADJUDGED that the

defendant be committed to the custody of the At-

torney General or his authorized representative for

a period of FR YEARS as to each of Counts 2, 4,

7, 11, 12, 13, 14, and 15 of the Indictment, said sen-

tences to be served concurrently, each with the

other, and concurrently with the sentences imposed

this date in Counts 1 and 3 of the Indictment, for

17

Reasons for Granting a Writ of Certioruri.

a TOTAL SENTENCE OF TEN YEARS to be served by the

defendant.”

Count one of the indictment states in pertinent part:

“The Grand Jury charges:

“1. That beginning on or about June 1, 1969,

and continuing thereafter up to the date of the filing

of this indictment, in the Western District of Ken-

tucky and elsewhere, IVAN L. MARRA, MERRILL H.

KLEIN a/k/a Morris Klein, MERLE GOTTLIEB, HOBART

DARLING, JAMES E. Fire a/k/a “Jay” Fife, and ALVIN

KLEIN, the defendants herein, and others known and

unknown to the Grand Jury, did knowingly and

unlawfully conspire, combine, confederate and

agree together and with each other and with diverse

others to the Grand Jury known and unknown to

commit certain offenses against the United States,

to-wit:

“Violations of Title 18, United States Code,

Section 1952 and Section 1341; that is to say,

they conspired and agreed to travel in inter-

state commerce with the intent to promote,

manage, establish, carry on and facilitate the

promotion, management, establishment and

carrying on of an unlawful activity, to wit, Ar-

son, in violation of the laws of the Common-

wealth of Kentucky, and thereafter performed

acts promote, manage, establish, carry on

and facilitate the promotion, management, es-

tablishment, and carrying on of said unlawful

activity, to wit, Arson...

18

Reasons for Granting a Writ of Certiorari. .

7. It was further a part of the conspiracy

that defendants MERRILL H. KLEIN a/k/a Morrie

Klein, IVAN L. MARRA, JAMES E. FIFE a/k/a Jay“

Fife, and others would and did travel and cause to

travel on various occasions during the period of

this indictment between the state of Pennsylvania

and the Commonwealth of Kentucky and between

the state of Ohio and the Commonwealth of Ken-

tucky and between the Commonwealth of Kentucky

and the state of Indiana for the purpose of making

preparations for the intentional destruction of the

aforesaid premises by fire and for the additional pur-

pose of procuring the intentional destruction of the

aforesaid premises by fire

Count three of the indictment states:

“The Grand Jury further charges:

1. On or about May 2, 1970, in the Western

District of Kentucky, IVAN L. MARRA, MERRILL H.

KLEIN a/k/a Morrie Klein, MERLE GOTTLIEB, HOBART

‘Daruinc, JAMES E. Fire a/k/a “Jay” Fife, and

ALVIN KLEIN, the defendants herein, did travel and

cause travel in interstate commerce by defendant

MERRILL H. KLEIN a/k/a MORRIE KLEIN, from Pitts-

burgh in the Commonwealth of Pennsylvania to

Louisville in the Commonwealth of Kentucky with

the intent to promote, manage, establish and carry

on and facilitate the promotion, management, es-

tablishment and carrying on of an unlawful ac-

tivity, said unlawful activity being arson in viola-

tion of the laws of the state of Kentucky, and there-

after did perform and attempt to perform acts to

promote, manage, and carry on and facilitate the

promotion, management and carrying on of said

unlawful activity.

19

Reasons for Granting a Writ of Certiorari.

In violation of Title 18, United States Code Sec-

tions 1952 and 2.”’

The fifteen counts of the instant indictment charge

multiple offenses arising out of a single transaction, i.e.,

the destruction by fire of the building located at 1406

West Broadway Avenue, Louisville, Kentucky on May 4,

1970. In determining whether separate punishment

might be imposed for each of these counts, this Court in

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.

180, 182 (1932), held that courts must examine the

offenses charged to ascertain “. . . whether each pro-

vision requires proof of a fact which the other does

not“.

„ . As Blockburger and other decisions ap-

plying its principle reveal, see e.g. Gore v. United

States, 357 U.S. 386, 78 S. Ct. 1280, 2 L.Ed. 2d 1405

(1958); American Tobacco Co. v. United States,

328 U.S. 781, 788-789, 66 S.Ct. 1125, 1128-1129, 90

L.Ed. 1575 (1946), the Court’s application of the

test focuses on the statutory elements of the of-

fense. If each requires proof of a fact that the

other does not, the Blockburger test is satisfied,

notwithstanding a substantial overlap in the proof

offered to establish the crimes. See Gore v. United

States, supra...” lannelli v. United States, 420 U.S.

770, 785, 95 S.Ct. 1284, 1293-1294, footnote +17

(1975).

In the instant case, petitioner Klein believes that the

Blockburger test is satisfied in favor of his position that

the offenses charged in counts one and three of the in-

dictment merge and thus separate punishment is pro-

hibited.

20

Reasons for Granting a Writ of Certiorari.

Under the Blockburger test, each of the two specific

offenses alleged against Klein in counts one and three

does not require proof of a fact that the other does not.

Count one alleges that Alvin Klein conspired and agreed

to violate 18 U.S.C. 81952, i.e., he conspired and agreed

to travel in interstate commerce with the intent to

promote, manage, establish, carry on and facilitate the

promotion, management, establishment, and carrying

on of the unlawful activity of arson. Count one further

alleges that after Klein so conspired and agreed he then

“|. . performed acts to promote, manage, establish

carry on and facilitate the promotion, management,

establishment, and carrying on of said unlawful activity,

to wit, arson .. .”. Finally, for the purpose of the

within argument, count one (in paragraph seven)

alleges that co-defendants and co-conspirators. Mer-

rill H. Klein, Ivan Marra and James E. Fife and

others would and did travel and cause to travel on

various occasions during the period recited in this

indictment between Pennsylvania and Kentucky, be-

tween Ohio and Kentucky, and between Kentucky and

Indiana for the purpose of preparing for the destruction

of, and then destroying, the building at 1406 Broadway

Avenue, Louisville, Kentucky. There are two elements

necessary to prove the existence of this conspiracy:

1) an agreement between two or more persons to act

together in committing an offense, and 2) an overt act

in furtherance of the conspiracy. United States v. Fal-

cone, 311 U.S. 205, 61 S.Ct. 204 (1940). Here, the Gov-

ernment’s evidence did show Alvin Klein’s agreement

with his co-conspirators to travel (or cause others to do

so) in interstate commerce for an unlawful purpose (ar-

son) and his performance of overt acts to promote this

21

Reasons for Granting a Writ of Certiorari.

purpose. It also showed that co-conspirators Merrill H.

Klein, Marra and Fife (whose actions are attributable

to co-conspirator Alvin Klein) did in fact travel exten-

sively in and between Pennsylvania, Ohio, Kentucky

and Indiana to effect this illegality.

Count three alleged that on May 2, 1970, Alvin

Klein violated 18 U.S.C. §$2 and 1952! by causing, or aid-

ing and abetting, Merrill H. Klein’s travel in interstate

commerce from Pennsylvania to Kentucky to promote

the unlawful activity of arson. In order to sustain a con-

viction for aiding and abetting under 18 U.S.C. §2, the

accused must have knowledge of the criminal plan and

must consciously share in the criminal act. Nye d Nis-

sen v. United States, 336 U.S. 613, 69 S.Ct. 766 (1949).

Here, these two elements are contained in both the

specific charge against Alvin Klein in count one of the

indictment and the evidence presented by the Govern-

ment on that charge. Here, the evidence of the agree-

ment involving Alvin Klein and the overt acts pursuant

thereto actually prove the aiding and abetting of travel.

In short, the offense of aiding and abetting in count

three does not require proof of a fact that the offense of

conspiracy in count one does not require. The partici-

pants in the substantive offense in count three are all

the same co-conspirators who are a party to the con-

spiracy alleged in count one. The acts of Alvin Klein

1. Count three only charges Alvin Klein with the

specific offense of aiding and abetting under 18 U.S.C.

§2. The evidence shows that co-defendant Merrill Klein

actually performed the act of traveling while the other

co-defendants performed acts to “cause” or “aid and

abet“ that travel.

22

Reasons for Granting a Writ of Certiorari.

which are offered to prove the substantive offense in

count three are the same as those offered to prove the

conspiracy in count one. To prove the aiding and abet-

ting charges against Alvin Klein, the Government did

not have to establish any fact which was not already

established to prove the conspiracy charge against him.

The very same evidence was relied upon to prove both

charges. Therefore, under Blockburger, the conspiracy

and the substantive offense as they relate to Alvin Klein

merge upon proof of the former, and separate punish-

ment is thus prohibited.

The court of appeals held against Klein and cited

Blockburger, lannelli and United States v. Austin, 529

F.2d 559 (6th Cir. 1976). In its opinion, the applicable

standard of review was set forth as follows:

“The substantive offenses do not require an agree-

ment whereas the conspiracy does. There may be

conviction and punishment both for a conspiracy

and for aiding and abetting in commission of a

substantive offense so long as the ‘separate offense’

test of Blockburger is met. Pereira v. United States,

347 U.S. 1 (1954).” Opinion, p. 5 (see Appendix,

p. 5a).

Petitioner Klein respectfully suggests that when the

above standard or test is applied to the facts of the in-

stant case, a result different from that reached here

should ensue.

It is respectfully suggested that the court of ap-

peals’ decision in Austin, which relies in part on this

Court's holding in Gavieres v. United States, 220 US.

338, 31 S.Ct. 421 (1911), is supportive of Klein’s

position rather than distinguishable. There it was held:

23

Reasons for Granting a Writ of Certiorari.

“The test to be applied to determine whether the

offenses are separate or essentially congruent is the

same evidence’ test. As the Supreme Court has

held, whenever it appears that the proof of one

offense proves every essential element of another

growing out of the same act, the Fifth Amendment

limits the punishment to a single act. Gavieres v.

United States, 220 U.S. 338, 343, 31 S.Ct. 421,

55 L.Ed. 489 (1911).” United States v. Austin,

supra, 529 F.2d at 562-563.

Here, under the particular facts and circumstances, the

proof of the conspiracy proves every essential element

of the substantive offense of aiding and abetting, which

offense grows out of the same act involved in the con-

spiracy offense. As in Austin, . essentially the same

evidence in this case was relied upon to prove both the

conspiracy count and the substantive offense (s)“. 529

F.2d at 563. Here, as in Austin, the substantive offense

charged in count three “. . . in effect charged the same

agreement or concert of action,” 529 F.2d at 563-564, on

the part of Klein and others, as charged in count one.

Therefore, petitioner Klein contends that a correct

application of this Court’s reasoning in Blockburger and

Gavieres makes clear that petitioner’s five year sentence

on count one and his consecutive five year sentence on

count three are improper and in violation of the Fifth

Amendment which limits the punishment to a single act

under the circumstances of the instant case.

24

Reasons for Granting a Writ of Certiorari.

Petitioner Klein poses an important question of

federal law which has not been, but should be, settled by

this Court. He asks this Court to determine whether a

trial court should allow the production of tran-

scripts of testimony before the indicting grand jury,

or to review these transcripts “in camera’, in order to

determine if any evidence was presented or if the indict-

ing grand jury was merely “briefed” on what occurred

before the investigating grand jury.

Prior to trial, petitioner Alvin Klein, pursuant to

Rule 6 (e) of the Federal Rules of Criminal Procedure?,

moved the district court for disclosure of the grand jury

transcript of each witness who testified before the grand

juries involved in the instant case concerning the events

alleged in the indictment. One of the express reasons

for said motion was:

2. Rule 6(e) reads, in pertinent part, as follows:

“(e) Secrecy of Proceedings and Disclosure. Dis-

closure of matters occurring before the grand jury other

than its deliberations and the vote of any juror may be

made to the attorneys for the government for use in the

performance of their duties. Otherwise a juror, at-

torney, interpreter, stenographer, operator of a record-

ing device, or any typist who transcribes recorded testi-

mony may disclose matters occurring before the grand

jury only when so directed by the court preliminary to

or in connection with a judicial proceeding or when per-

mitted by the court at the request of the defendant upon

a showing that grounds may exist for a motion to dis-

miss the indictment because of matters occurring before

the grand jury. No obligation of secrecy may be im-

posed upon any person except in accordance with this

rule.” Emphasis supplied.

25

Reasons for Granting a Writ of Certiorari.

“It is the defendant’s understanding that the grand

jury which returned this indictment is not the

grand jury which took testimony and heard wit-

nesses in this case, and defendant believes that the

indicting grand jury was ‘briefed’ as to the pro-

ceedings which occurred before the investigating

grand jury. These facts give rise to the possibility

of prosecutorial misconduct before the grand jury

and impermissible selection of material, thus pre-

venting the grand jury from exercising its power

and duty independently to investigate and examine

evidence and request additional testimony and/or

witnesses.”

On September 9, 1975, without a hearing, the district

court denied said motion. On September 29, 1975, again

prior to trial, Klein renewed his motion. It was averred

that no witnesses had appeared before the grand jury

sitting in Louisville, Kentucky, and that this grand jury

had returned an indictment based solely upon a “brief-

ing” by the prosecuting attorneys as to what had been

presented to the grand jury in Pittsburgh, Pennsylvania

which had actually conducted the investigation sur-

rounding the instant case. Klein requested an eviden-

tiary hearing or an “in camera” judicial review of the

proceedings before the indicting grand jury. Said re-

quest was not granted. In light of the particular facts

and circumstances here, Klein contends that,the denial

of his motion and the lower court’s failure to order an

evidentiary hearing or “in camera” review of the in-

dicting grand jury proceedings was so serious an abuse

of discretion as to deprive him of his rights to a fair

trial and due process of law under the Fifth Amendment

to the United States Constitution.

—

26

Reasons for Granting a Writ of Certiorari.

It should be noted that petitioner Klein does not

allege there was no competent evidence presented to

the indicting grand jury in Louisville as was the allega-

tion in United States v. Hoffa, 349 F. 2d 20, 43 (6th Cir.

1965), affd. 385 U.S. 293, 87 S.Ct. 408 (1966). Klein’s

position is that there was no evidence presented to the

indicting grand jury and, consequently, no basis for the

return of a valid indictment. In Hoffa, it was held that

“(hjearsay evidence is sufficient“, 349 F. 2d at 43, to

support an indictment. In Costello v. United States, 350

U.S. 359, 362, 76 S.Ct. 406, 408 (1956), Mr. Justice

Black wrote:

“But neither the Fifth Amendment nor any other

constitutional provision prescribes the kind of evi-

dence upon which grand juries must act.” (Em-

phasis supplied).

As Hoffa and Costello both imply and as no court has

held to the contrary, some evidence of some type must

be presented before a grand jury can hand up an indict-

ment. See also: United States v. Calandra, 414 U.S. 338,

344-345, 94 S.Ct. 613, 618 (1974). The concurring opinion

in Costello strongly supports this view. In it, Mr. Justice

Burton reasoned:

“Likewise, it seems to me that if it is shown that

the grand jury had before it no substantial or ra-

tionally persuasive evidence upon which to base its

indictment, that indictment should be quashed. To

hold a person to answer to such an empty indict-

ment for a capital or otherwise infamous federal

crime robs the Fifth Amendment of much of its

protective value to the private citizen.” 350 U.S. at

364, 76 St.Ct. at 409.

27

Reasons for Granting a Writ of Certiorari.

Mr. Justice Burton went on to quote from the lower

court opinion. There, in Judge Learned Hand’s majority

opinion, it was announced:

We should be the first to agree that, if it appeared

that no evidence had been offered that rationally

established the facts, the indictment ought to be

quashed; because then the grand jury would have

in substance abdicated.” United States v. Costello,

221 F. 2d 668, 677 (2d Cir. 1955).

From the above, it is clear that some evidence, however

slight, must be offered to the indicting grand jury. Here,

Klein alleged the total absence of any evidence. It is

submitted that a report or summarization of testimony

heard by the investigating grand jury in Pittsburgh can

not fill this void.

Due to the seriousness of Klein’s allegation, the

lower court should have ordered an evidentiary hearing

or reviewed a transcript of the Louisville grand jury

proceedings “in camera”. If the court had acceded to

Klein’s request, it would not have acted without support.

In Hoffa, the trial judge required the production of the

grand jury minutes for “in camera” inspection as a re-

sult of defendants’ desire to use them for impeachment

purposes. The Eighth Circuit has stated in Truchinski

v. United States, 393 F. 2d 627, 634 (8th Cir. 1968) :

“This is not to say that a defendant upon timely

motion cannot demonstrate a ‘particularized need’

for at least the Court’s in camera examination of

grand jury minutes to determine if defendant’s

motion to dismiss the indictment is well taken.”

Further support can be found in the Second Circuit’s

decision in United States v. Estepa, 471 F. 2d 1132 (2d

28

Reasons for Granting a Writ of Certiorari.

Cir. 1972) where the indictment was dismissed because

the nature of the case’s presentation to the grand jury

failed to avoid undue reliance upon hearsay. In addition

to showing an appellate court’s willingness to “look

behind” an indictment, Estepa is also significant for its

reasoning. The court pointed out that:

“The importance of avoiding undue reliance upon

hearsay before a grand jury is heightened by this

circuit’s view that an indictment constitutes a find-

ing of probable cause and avoids the need for a

preliminary hearing under F.R. Cr.P. 5(c).” 471

F.2d at 1136.

This language bolsters the view that there must be

some evidentiary basis for an indictment since an in-

dictment serves to demonstrate a grand jury’s conclu-

sion that probable cause exists to charge a particular

individual with a violation of law.

Klein respectfully suggests that this Court adopt

a procedure akin to that ordered by the Second Circuit

in United States v. Ramirez, 482 F.2d 807, 812 (2d Cir.

1973). There, based on Estepa, the court ruled that

where it appears the grand jury has heard only hearsay

testimony, upon appropriate motion, the proper course

for the trial judge to follow is to examine the grand jury

minutes “in camera” to determine whether or not

the grand jury was misled into believing it was

given eyewitness testimony when in fact it was not.

Quaere: is it not at least equally important, if not more

so, to have the trial judge, in the appropriate circum-

stances, determine whether or not the indicting grand

jury had heard any testimony at all? Here, the lower

29

Reasons for Granting a Writ of Certiorari.

court should have examined the minutes to determine

whether the indictment was based on any evidence pre-

sented to the Louisville grand jury.

As noted above, judicial precedent requires that an

indictment rest upon some evidence. Without review

of the Louisville grand jury proceedings, neither Klein

nor the lower court could discover whether this require-

ment was met. If it was not, the prejudice to Klein is

clearly manifest for several reasons. First, the indict-

ment against him would be invalid and unfounded. Sec-

ond, the grand jury will have been only a “rubber

stamp” endorsing the wishes of a prosecutor without

the opportunity to evaluate the credibility of witnesses

contrary to the requirement that an individual be in-

dicted by a grand jury so as to place between the prose-

cutor and the accused an independent body, which can

evaluate the evidence and decide if the charge is

grounded in reason. Wood v. Georgia, 370 U.S. 375, 390,

82 S.Ct. 1364 (1962) Third, the accused Klein would be

denied his rights “. . to have the grand jury make the

charge on its own judgment”. Stirone v. United States,

361 U.S. 212, 219, 80 S.Ct. 270, 274 (1960).

In rejecting Klein’s argument, the Sixth Circuit

viewed the statement by his counsel that it was his “un-

derstanding” that the indicting grand jury was not the

grand jury which heard witnesses in the case as a

mere conclusion of the defendant without any factual

support” (Opinion, pp. 3-4, Appendix, p. 4a). That court

went on to say:

“Actually the chief witness for the government tes-

tified twice at the trial that he appeared before the

grand jury in Louisville. We conclude that the de-

fendant made no showing of the existence of

30

Reasons for Granting a Writ of Certiorari.

grounds for a motion to dismiss the indictment and

that the district court did not abuse its discretion

in denying the motion.“ (Opinion, p. 4, Appendix,

p. 4a)

Petitioner Klein respectfully suggests that by reasoning

in such a manner the court of appeals misapprehended

certain points of law and fact. Initially, it should be noted

that the secrecy of grand jury proceedings precluded

Klein from offering “factual support” for his motion;

the facts were simply not available to him. Moreover, the

trial court refused to grant an evidentiary hearing on

this question and/or to review the grand jury minutes

“in camera”. Even though it would appear reasonable

and fair for the burden of going forward to shift to the

Government when a defendant raises a contention like

the one raised here, this also was not done. It was thus

impossible for Klein to offer supportive information. He

had sincerely alleged to the court his belief that the

indicting grand jury did not hear witnesses but had

only been briefed“ as to the proceedings which occurred

before the investigating grand jury. Because of the rules

of grand jury secrecy and absent the benefit of a hearing

or an “in camera” review, his allegation could not be

expanded upon.

That petitioner’s allegation was sufficient is im-

pliedly supported by the language of Rule 6 (e) of the

Federal Rules of Criminal Procedure which permits dis-

closure of grand jury minutes... at the request of the

defendant upon a showing that grounds may exist for

a motion to dismiss the indictment because of matters

occurring before the grand jury” (emphasis supplied).

The Rule does not require absolute certainty, only a

possibility. Here, that criterion was met. Furthermore,

31

Reasons for Granting a Writ of Certiorari.

under the circumstances, disclosure of the minutes was

not necessary to satisfy Klein’s request; judicial “in

camera” review would have been sufficient. As discussed

above, such a procedure is certainly not without

precedent.

Finally, while it is true that a Government witness

testified twice at trial of his appearance before the in-

dicting grand jury, it does not necessarily follow that

any evidence was presented to that body concerning

petitioner Klein. The record is devoid of any men-

tion of such evidence. At trial, that Government wit-

ness did not implicate petitioner Klein. At trial, only

one witness, Hobart Darling, testified to any involve-

ment by Klein in the crimes charged, but there is no

indication that Darling either appeared before, or of-

fered testimony to, the indicting grand jury. In fact,

there is no evidence of any witness testifying against

Klein before the indicting grand jury.

32

Conc4usion.

CONCLUSION

For the reasons discussed above, petitioner Klein

requests a Writ of Certiorari issue to review the Judg-

ment of the United States Court of Appeals for the

Sixth Circuit.

Respectfully submitted,

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT |

UNITED STATES OF AMERICA, )

Appelice, | No. 76-1366

iP No. 76-1367

JAMES E. Fire and ALVIN KLEIN,

Appellants. _

APPEAL from the United States District Court

for the Western District of Kentucky.

Decided and Filed December 21, 1976.

Before: PHILLIPS, Chief Justice; MCCREE and

LIVELY, Circuit Judges.

LIVELY, Circuit Judge. The appellants, Fife and

Klein, were indicted by a grand jury of the Western

District of Kentucky for conspiring te travel in inter-

state commerce for the purpose of committing arson

and of conspiring to use the mails to defraud. They were

algo indicted in six substantive counts charging viola-

tions of 18 U.S.C. S 1952, interstate travel for the purpose

of committing arson, and eight substantive counts of

violating 18 U.S.C. S 1341, use of the mails to defraud.

Both appellants were convicted of the conspiracy charge

and three substantive counts of interstate travel to

commit arson as well as charges of mail fraud. A co-

defendant, Ivan Marra, pled guilty during the trial to

the conspiracy count and one substantive count of in-

terstate travel to commit arson. Each appellant was

sentenced to serve five years on count one, the conspiracy

count, and five years on one of the substantive counts,

2a

Appendix A.

to be served consecutively to the conspiracy sentence;

each was sentenced to serve concurrent sentences on the

remaining substantive counts.

A building in Louisville, Kentucky in which the ap-

pellant Klein had a financial interest burned on May 4,

1970. There was abundant evidence of arson. The build-

ing was insured against loss by fire by the Hartford

Insurance Group, and Klein eventually received $160,000

from Hartford in settlement of the fire claim. The co-

defendant Marra made a claim against Fireman’s Fund

Insurance Company for loss to the contents of the build-

ing under a policy he had obtained upon representation

to Fireman’s Fund that he was conducting a plastics

business as lessee of the building. The evidence disclosed

that Marra had moved some materials into the building

to give the impression that a business was being con-

ducted, but that actually this was not the case. Fireman’s

Fund never paid Marra on his claim. The arrangements

for the fire and the actual setting thereof involved trips

between Pennsylvania and Kentucky by the defendants

and others acting in concert with them, and the mails

were used in filing loss claims with the insurance com-

panies. Neither appellant questions the sufficiency of

the evidence.

APPEAL OF ALVIN KLEIN (No. 76-1367)

Klein made a motion under Rule 6(e), Fed. R. Crim.

P., for production of the grand jury minutes, charging

that the indicting grand jury had not heard witnesses,

but had actually only been “briefed” by government

agents concerning evidence which had been presented

to an earlier grand jury in the Western District of Penn-

sylvania. Following denial of this motion Klein re-

quested the district court to conduct an in camera ex-

7 3a

Appendix A.

amination of the Kentucky grand jury transcript. Seek-

ing to distinguish Costello v. United States, 350 U.S.

359 (1956), and this court’s decision in United States v.

Hoffa, 349 F.2d 20 (1965), aff’d, 385 U.S. 293 (1966),

he argues that it is his contention that there was no

evidence presented to the indicting grand jury, not that

the evidence presented to the grand jury was hearsay

or otherwise incompetent. He concedes that a motion

under Rule 6(e) is addressed to the sound discretion of

the trial judge, but maintains that there was an abuse

of discretion in denying t L motion in this case.

The Court of Appeals for the Second Circuit reversed

a conviction and dismissed an indictment where a wit-

ness before a grand jury testified extensively about a

drug transaction and the grand jury was not informed

that the testimony was based on hearsay and was misled

to believe that the witness was testifying from personal

knowledge. United States v. Estepa, 471 F.2d 1132 (2d

Cir. 1972). Thereafter the Second Circuit held that

when it appears that a grand jury had heard only hear-

say testimony, on motion, the district judge should ex-

amine the grand jury minutes in camera. United States

v. Ramirez, 482 F.2d 807 (2d Cir.), cert denied sub nom.

Gomez v. United States, 414 U.S. 1070 (1973). Both

Estepa and Ramirez were addressed to a practice of the

United States Attorney’s Office for the Southern Dis-

trict of New York from which the court concluded that

grand juries were being misled by the use of hearsay

witnesses rather than eyewitnesses and that in some

cases there was a high probability that the grand juries

would not have returned indictments if eyewitness testi-

mony had been presented. It is not contended that such

a situation existed in the present case.

4a

Appendix A.

The requirement of Rule 6(e) is that the defendant

must make “a showing that grounds may exist for a

motion to dismiss the indictment because of matters

occurring before the grand jury.” In the absence of such

a showing, the proceedings of a grand jury are required

to be kept secret. United States v. Wilkinson, 513 F.2d

227 (7th Cir. 1975); Truchinski v. United States, 393

F.2d 627 (8th Cir.) , cert. denied, 393 U.S. 831 (1968).

In his motion before the district court counsel for

the defendant Klein stated that it was his “understand-

ing” that the grand jury which had returned the indict-

ment was not the grand jury which had heard the wit-

nesses in the case. This was a mere conclusion of the

defendant without any factual support. Actually the

chief witness for the government testified twice at the

trial that he had appeared before the grand jury in

Louisville. We conclude that the defendant made no

showing of the existence of grounds for a motion to

dismiss the indictment and that the district court did

not abuse its discretion in denying the motion. United

States v. Barnes, 313 F.2d 325, 326 (6th Cir. 1963).

Klein next contends that count one (conspiracy)

and count three (interstate travel for the purpose of

committing arson) of the indictment charged him with

identical offenses and that the counts therefore merged,

precluding separate punishment on the two counts.

Count three charged that Klein caused travel in inter-

state commerce by one of the actual arsonists and he

maintains that this is precisely the same as one of the

overt acts with which he is charged under count one.

The government argues that Klein’s contention is under-

cut by the settled principle that a person may be con-

5a

Appendix A.

victed both of a substantive offense and a conspiracy

to commit the same substantive offense.

The test for determining if an indictment charges

one offense or separate offenses was established by the

Supreme Court in Blockburger v. United States, 284

U.S. 299, 304 (1932). In Jannelli v. United States, 420

U.S. 770, 785 (1975), the Court pointed out that there

may be a “substantial overlap” in the proof offered to

support two charges but that the Blockburger test is

satisfied so long as “each requires proof of a fact that

the other does not... In United States v. Austin, 529

F.2d 559 (6th Cir. 1976), the indictment was drawn in

such a way that the substantive offenses “in effect

charged the same agreement or concert of action

involving the defendant and other persons as was

charged in the conspiracy count. Under these circum-

stances we held that there was a merger of offenses. The

indictment in the present case is not drawn in the same

way as the indictment which the court considered in

Austin.

Of course the essence of a conspiracy is an agree-

ment to commit an offense. A conviction under count one

required proof of an agreement. Count three, on the

other hand, charged interstate travel and causing in-

terstate travel by the arsonist. The fact that the offenses

charged in the substantive counts all related to a single

event which was the ultimate purpose of the conspiracy

is immaterial. The substantive offenses do not require

an agreement whereas the conspiracy does. There may

be conviction and puishment both for a conspiracy and

for aiding and abetting in commission of a substantive

offense so long as the “separate offense” test of Block-

burger is met. Pereira v. United States, 347 US. 1

6a

Appendix A.

(1954). Essentially the same arguments as those made

by Klein in this case were considered by the court in

United States v. Bradley, 421 F.2d 924, 927-28 (6th Cir.

1970), where the court stated:

The commission of a substantive offense and a con-

spiracy to commit it are separate and distinct

crimes, and a plea of double jeopardy does not arise

on a conviction for both. Pinkerton v. United States,

328 U.S. 640, 643, 644, 66 S.Ct. 1180, 90 L.Ed. 1489;

Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358,

98 L.Ed. 435 (1953); Callanan v. United States, 364

U.S. 587, 590, 81 S.Ct. 321, 5 L.Ed.2d 312 (1960).

Neither does a conviction for a substantive offense

in any way merge a conspiracy charge into the sub-

stantive crime. Callanan v. United States, supra, 364

US. at 587, 81 S.Ct. 321. In Pereira, supra, 347 U.S.

at 11, 74 S.Ct. 358, the Court specifically held that

aiding and abetting, under the facts of that case,

was a separate crime from conspiring. We can find

no meaningful distinction in the facts presented

here.

Bhe other issues raised by Klein do not require ex-

tended treatment. He contends that it was an abuse of

discretion for the district court to exclude evidence that

he had submitted to a polygraph test and that Hartford

had relied upon it in settling his insurance claim. This

court has recently reiterated its position that the result

of a polygraph test is not competent evidence. United

States v. Mayes, 512 F.2d 637 (6th Cir.), cert. denied,

422 U.S. 1008 (1975) and sub nom. Cook v. United

States, 423 U.S. 840 (1975). Since polygraph evidence

itself would have been incompetent, there was no abuse

of discretion in excluding testimony that a polygraph

7a

Appendiæ 4.

test had been taken. Klein contends further that the

district court committed prejudicial error in admitting

testimony that the occupation of Merrill Klein (no rela-

tion to appellant) was that of “arsonist.” His argument

on this point seems basically concerned with the fact

that the District Judge ruled similar evidence inadmis-

sible at an earlier stage of the proceedings. However, at

the time the evidence was admitted there had been a

great deal of testimony concerning arson and the identi-

fication of Merrill Klein as an arsonist was clearly rele-

vant. Appellant Klein also contends that the district

court erred in admitting a letter in evidence which had

been written by a government witness to himself setting

forth the details of the conspiracy. United States v.

Walsh, 305 F.2d 821 (6th Cir.) , cert. denied, 371 U.S. 876

(1962), cited by Klein is inapposite. The decision to ad-

mit or exclude evidence is within the discretion of the

trial judge and we perceive no abuse of discretion in the

rulings complained of.

APPEAL OF JAMES E. Fire (No. 76-1366)

Appellant Fife argues that he was prejudiced by

the fact that a co-defendant, Ivan Marra, pled guiity

during the trial and that the court advised the jury of

this occurrence. Upon first receiving the guilty plea of

Marra the court merely advised the jury that something

had transpired which made it necessary for Marra and

his counsel to be present and that he was no longer in-

volved in the case. Thereafter, counsel for appellant

Klein requested the court to instruct the jury of the

reason for Marra’s withdrawal. Counsel for Fife ob-

jected and moved for a mistrial when the court an-

nounced that the jury would be informed and instructed

that no inferences could be drawn from Marra’s guilty

plea in their consideration of the charges against Klein

8a

Appendix A.

and Fife. The court did then advise the jury of Marra’s

guilty plea and gave a comprehensive instruction that the

jury should draw no inferences with respect to the

case against the remaining defendants and that the

guilty plea would in no way influence them in the de-

cision which they would be required to make with re-

spect to the other two defendants.

Fife relies primarily upon Payton v. United States,

222 F.2d 794 (D.C. Cir. 1955), in which it was held prej-

udicial error for the court to receive a guilty plea in the

presence of the jury and then emphasize this fact as the

trial proceeded. The court of appeals pointed out that

it was particularly prejudicial because the evidence

showed a close association between the co-defendant

who had pled guilty and the defendant whose trial con-

tinued. So far as may be ascertained from reading the

reported decision, the trial court in Payton did not give

a corrective instruction to the jury as was done in the

present case. In United States v. Kimbrew, 380 F.2d 538

(6th Cir. 1967), the court held that it was no error to

permit a co-defendant to change his plea from not guilty

to guilty in the presence of the jury, though the review-

ing court must be sensitive to any aggravating circum-

stances. In Kimbrew there was no request for a correc-

tive instruction and the conviction was affirmed.

Fife argues that there were aggravating circum-

stances in the present case in that testimony had linked

Marra and Fife as business associates and they had

been described as being together about one week before

the fire. On the other hand, we do not have the aggravat-

ing circumstance found in Payton of several references

by the court to the guilty plea without instructing the

jury that it was not to draw any inferences from this

development. We believe the Fifth Circuit articulated

9a

Appendix A.

the proper test in United States v. Baete, 414 F.2d 782,

783 (1969), where it stated that in cases such as this

the appellate court should focus its attention carefully

on “the sufficiency of the corrective instruction.” This

test is particularly applicable in the present case where

one of the remaining codefendants requested the court

to advise the jury of the guilty plea and the other ob-

jected. We have carefully examined the corrective in-

struction given by District Judge Bratcher and conclude

that it was sufficient to remove any prejudice which

might otherwise have flowed from the jury’s knowledge

of Marra’s guilty plea.

Prior to trial, appellant Fife made a motion pur-

suant to Rule 16(c), Fed. R. Crim. P., for production

of all documents and other tangible items in the posses-

sion, custody or control of the government which might

be material to the preparation of the defense. This mo-

tion was granted, but the documents disclosed to the

defendants did not include a bank signature card with

reference to a deposit in a Cleveland, Ohio bank in the

name of Marra Industries. An officer of the Cleveland

bank appeared pursuant to a government subpoena and

brought with him bank deposit statements and a signa-

ture card for the account of Marra Industries bearing

the signatures of Ivan Marra and the appellant Fife.

Fife objected to production of the signature card on the

ground that the government had not produced it in com-

pliance with the order under Rule 16. The court excluded

the signature card at that time. When the witness was

recalled later, the court permitted the signature card to

be received in evidence. At this time the attorney for the

government pointed out that copies of the card had been

made available to the defense two days earlier.

10a

Appendix A.

Fife argues that so long as the bank official was only

permitted to testify that the account has been opened the

jury did not know that he, Fife, had any connection with

the bank account, and that it was prejudicial to reveal

this fact through admission of the signature card which

had not been furnished prior to trial. We fail to see

prejudice in the ruling of the trial court. Fife never

denied that he was associated with Marra, but insisted

that he made an investment in Marra Industries thinking

that it was a legitimate business enterprise. Further-

more, there was direct evidence of Fife’s association

with Marra in addition to the fact that both had signed

the signature card. There was no reversible error in the

district court’s handling of this matter.

Fife contends that his Sixth Amendment right to

confront witnesses against him was infringed by the

limitations which the district court placed on his cross-

examination of the government witness, Joseph Lav-

erich. Laverich was the only witness who implicated

Fife in the burning of the bakery building, and Fife

denied any involvement. Thus the jury had to make a

credibility determination with respect to conflicting

testimony of Fife and Laverich. Cf. Smith v. Illinois, 390

U.S. 129, 131 (1968). Fife argues that his cross-examina-

tion of Laverich was improperly restricted in two

respects.

At the beginning of the trial, counsel for Fife re-

quested an FBI “rap sheet” on Laverich. The government

attorneys reported to Fife’s counsel that it had been

learned through a telephone call to Washington that the

FBI did not have a rap sheet on the witness. Defense

counsel was informed that the witness had two mis-

demeanor convictions, but no felony convictions. Near

lla

Appendix A.

the end of cross-examination of Laverich by counsel for

Fife one of the prosecuting attorneys informed counsel

and the court that a second telephone call to Washington

had produced the fact that a rap sheet on Laverich was

in existence. The government attorney had a hand-

written copy of the contents of the rap sheet and this

was shown to the District Judge and Laverich in

chambers. Counsel for Fife was permitted to ask Lav-

erich about each item on the handwritten sheet out of

the presence of the jury. Laverich stated that he had not

been convicted of a felony within ten years of the time

of trial and that he was found innocent by a jury of a

charge of attempted murder which was shown on the

handwritten sheet. Counsel for Fife did not cross-

examine Laverich further in the presence of the jury.

Prior to the above proceedings counsel for Fife had

attempted to cross-examine Laverich extensively about

the attempted murder charge upon which he had been

acquitted. The district court sustained objections to

such questions and counsel stated that he believed the

Department of Justice Strike Force attorneys had as-

sisted Laverich in winning an acquittal in the attempted

murder case in order to induce him to testify against

Fife in the present case. Counsel admitted that he had

no information to this effect, but wanted to attempt

to develop this theory. The district court permitted Fife’s

attorney to introduce a memorandum of understanding

between Laverich and the prosecuting attorneys and

required Laverich to read this memorandum to the jury.

Laverich testified that he received immunity and was not

named as a defendant in the case against Klein, Marra

and Fife.

12a

Appendia A.

Fife was not prejudiced by the delay of the govern-

ment in producing the “rap sheet.“ Furthermore, the

District Judge did not abuse his discretion in sustaining

objections to questions concerning a charge on which

Fife had been acquitted by a jury. This case is totally

unlike Giglio v. United States, 405 U.S. 150 (1972), where

the prosecution failed to disclose to the jury the fact

that the government had made a promise of leniency in

return for the testimony of a key witness. The jury was

fully informed as to arrangements between Laverich

and the government, and Fife’s attorney was free to

argue inferences from the known facts. However, counsel

for Fife was not entitled to harass the witness with

questions about a serious charge upon which a jury had

acquitted him, based on counsel’s personal theory of an

illegal agreement between the government and Laverich

which is totally unsupported by the record.

The second, and more serious charge of prejudicial

limitation of cross-examination relates to the residence

address of Laverich. On direct examination Laverich

testified that he lived in a residence in Greensburg,

Pennsylvania and had lived there for two years at the

time of the trial. The prosecuting attorney objected when

counsel for Fife on cross-examination asked the resi-

dence address of Laverich in Greensburg, Pennsylvania,

and che court sustained the objection. Immediately there-

after there was a bench conference at which counsel for

Fife said that he needed the information to develop his

cross-examination and for further investigation of

Laverich. The government attorney stated, “This wit-

ness is apprehensive to tell it.“ The district court stated

that he did not want to contribute to the apprehension

of the witness and that the name of the town where

13a

not in custody at the time of the trial, that he had

participated in the burning of a hotel in Pennsylvania

in 1968 or 1969 and in another arson case in Pittsburgh

after the fire in Louisville. Furthermore, he testified that

he had “burglarized places.“ He testified that he was

employed at the time of the trial as a building contractor

in Greensburg, Pennsylvania and that he had previousiv

done work in electronics. During the conference between

the court and the counsel after the “rap sheet” informa-

tion was produced, Laverich stated under oath that the

population of Greensburg, Pennsylvania is about 15,000.

Fife relies principally on Alford v. United States,

282 U.S. 687 (1931), and Smith v. Illinois, 390 U.S. 129

(1968). Alford establishes the rule that counsel for a

defendant is not required to show, or even know, what

he expects to prove on cross-examination. Cross-ex-

amination, particularly where the purpose is to disclose

bias or prejudice on the part of a witness, is necessarily

of an exploratory nature. The Supreme Court held that

it was error for a trial court to sustain an objection to

a cross-examiner’s question seeking to elicit the address

of a government witness in a criminal prosecution. Mr.

Justice Stone wrote for the Court, “Prejudice ensues

from a denial of the opportunity to place the witness in

his proper setting and put the weight of his testimony

and his crevibility to a test, without which the jury

cannot fairly appraise him.” 282 U.S. at 692.

In Smith v. Illinois, 390 U.S. 129 (1968), a govern-

ment witness admitted on cross-examination that he had

14a

Appendix A.

given a fictitious name on direct examination. The trial

court sustained objections to cross-examination ques-

tions concerning his real name and his residence address

at the time of the trial. Pointing out that the identity and

residence of a witness are basic information the Court

stated, “The witness’ name and address open countless

avenues of in-court examination and out-of-court in-

vestigation. To forbid this most rudimentary inquiry at

the threshold is effectively to emasculate the right of

cross-examination itself.” Jd. at 131. The present case

is distinguishable in some respects from Smith v. Illinois

in that the witness gave his true name, the town where

he lived and worked and his occupation.

The mere expression of apprehension by a witness

who is reluctant to divulge his address is not sufficient

justification for restricting cross-examination without

further inquiry. An in camera hearing might be held to

determine if there is a factual basis for such apprehen-

sion. The district court should have conducted such an

inquiry in the present case. However, information which

was brought out in the otherwise unrestricted cross-

examination of Laverich revealed that he had lived in

a town of approximately 15,000 population for a period

of at least two years where he was engaged as a self-

employed building contractor. Thus the only information

the witness was allowed to withhold was his street

address in a relatively small community.

Though convictions were reversed by the Supreme

Court both in Alford v. United States and Smith v. Illi-

nois, the Court did not lay down a per se rule that a wit-

ness must always be required to give his residence ad-

dress. In Alford the Court affirmed that the extent of

cross-examination with respect to any permitted subject

15a

Appendix A.

is always within the sound discretion of the trial court.

282 U.S. at 694. We believe that under the circumstances

of this case, counsel for Fife had the opportunity “to

place the witness in his proper setting... Id. at 692.

As the court pointed out in United States v. Alston, 460

F. 2d 48, 51 (5th Cir.) , cert. denied, 409 U.S. 871 (1972),

the purpose of Alford and Smith is achieved if sufficient

evidence is admitted to identify the witness and locate

him in his usual environment. The cross-examination

which was permitted in the present case produced this

information.

The critical importance of cross- examination in our

adversary system of justice has been affirmed many

times. The necessity of permitting great latitude in cross-

examination where the purpose is to show bias or motive

of a witness to testify falsely has been recently reiterated

by the Supreme Court and this court. See Davis v.

Alaska, 415 U.S. 308 (1974); United States v. Garrett,

—— F.2d (6th Cir. No. 76-1108, decided September

29, 1976); United States v. Baker, 494 F.2d 1262 (6th

Cir. 1974). However, an examination of the entire tran-

script of the testimony of Laverich reveals an extensive

and productive cross-examination, and we conclude that

the district court did not commit prejudicial error.

Both judgments of conviction are affirmed.

i

16a

Appendix B.

APPENDIX B

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee

v. No. 76-1367

ALVIN KLEIN

Defendant-Appellant

Filed Jan. 26, 1977, John P. Hehman, Clerk

BEFORE: PHILLIPS, Chief Judge; MCCREE and LIVELY,

Circuit Judges.

ORDER

Upon consideration of the petition for rehearing

filed herein by the defendant- appellant, Alvin Klein, the

court concludes that the issues raised therein were con-

sidered upon submission of this appeal following oral

argument and that rehearing is not required.

The petition for rehearing is denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN,

Clerk

17a

Appendix C.

APPENDIX C

Certificate of Service

Petitioner, Alvin Klein, by his attorneys, Thomas A.

Livingston, Esq., and Dennis J. Clark, Esq., hereby cer-

tify that the within Petition for Writ of Certiorari has

been forwarded by mail for filing to the Clerk of the

Supreme Court of the United States in Washington,

D.C., and that a true and correct copy of said Petition

has been forwarded by mail to the Office of the Solicitor

General of the United States, Department of Justice,

Washington, D.C.

THOMAS A. LIVINGSTON, Esq.

DENNIS J. CLARK, Esq.

Attorneys for Petitioner