Petition — Cohen v. United States

Supreme Court, U.S,

wm FitLk DvD

| FER 2a 1977

IN THE SUPREME COURT OF THE URMTED ‘STATES

NO. “6-116

LEON A. COHEN,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TAYLOR W. JONES

CHARLES F. BARNWELL

JONES & BARNWELL .

1120 Atlanta Center

250 Piedmont Ave., N.E.

Atlanta, Georgia 30308

(404) 659-0023

Attorneys for Petitioner

a =

IN THE SUPREME COURT OF THE UNITED STATES

NO.

LEON A. COHEN,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TAYLOR W. JONES

CHARLES F. BARNWELL

JONES & BARNWELL

1120 Atlanta Center

250 Piedmont Ave., N.E.

Atlanta, Georgia 30308

(404) 659-0023

Attorneys for Petitioner

PIP PRI Ce ee rr

INDEX

Opinions Below. .......

v

Ee ae

Questions Presented .....

Statutes and Constitutional

Provisions Involved. ....

S ta tement . * a + * . * * * .

Reasons for Granting the Writ

Conc lus ion . * * . * al 7 . . +

Mle oc eo es wee ee ee

CITATIONS

CASES:

Hillard v. United States,

24 F.2d 99 (5th Cir. 1928) .

Kolaski v. United States,

F. (5th Cir. 1966)

United States v. Davis,

461 F.2d 83 (5th Cir. 1972).

United States v. Lambert,

501 F.2d 943 (5th Cir., en banc,

1974) * . a * 7 * * >. 7 . . .

31, 33,

34, 35,

INDEX (Continued)

STATUTES:

§7206(1), I.R.C., 26 U.S.C.

7206 (1) . . . - . - + . . 7 a 7

RULES :

Rule 609(b), Federal Rules of

Bvaeeeee.s, Be-GobboSce 0 0 6 ee

Rule 7(c) (1), Federal Rules of

Criminal Procedure, 18 U.S.C..

CONSTITUTIONAL PROVISIONS:

Fifth Amendment, United States

Gees og fb tet ele etl él

Sixth Amendment, United States

CS OS eee a ae

ii

4,

31

31

31

26,

IN THE SUPREME COURT OF THE UNITED STATES

NO.

LEON A. COHEN,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of cer-

tiorari issue to review the judgments of

the United States Court of Appeals for the

Pifth Circuit entered in the above case on

‘January 3, 1977 and January 31, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals

below has not yet been officially reported,

but a copy of the Court's opinion is ap-

pended hereto. There was no reporting of

any opinion rendered by the District Court

below.

JURISDICTION

The judgment of the court below (see

appendix) was entered on January 3, 1977.

The Appellant's timely filed Petition for

Rehearing and Petition for Rehearing En

Banc was denied by entry of an order dated

January 31, 1977. This case involves the

appeal from a criminal conviction relating

to the statutory provisions of the Internal

Revenue Code and jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the first analytical judi-

cial construction of Rule 609(b) of the re-

cently enacted Federal Rules of Evidence,

relating to the admissibility of prior con-

victions for impeachment purposes, should

be permitted to establish precedent which

would authorize a trial judge to resolve

the question of the admissibility of a

2

"stale" conviction without first balancing

the probative value with the prejudicial

effect and thereafter determining that the

former substantially outweighs the latter.

2. Whether a criminal conviction

should be permitted to stand where the de-

fendant was not informed as to the nature

and cause of the charges, but where that

defendant was, instead, misinformed as to

the nature and cause of the charges by the

willful and affirmative misrepresentations

of Government counsel to both the trial

court and to the defendant.

3. Whether a criminal conviction

should be permitted to stand where the de-

fendant was convicted upon charges not

brought in the indictment by the Grand Jury,

but instead brought by Government counsel

and the trial court in the middle-of trial.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

l. The Fifth Amendment, United States

3

Ree

Constitution. was convicted, §7206(1), I.R.C., 26 U.S.C.

2. The Sixth Amendment, United States 7206(1), states, in pertinent part, as fol-

Constitution. lows:

re ee ve we

Be Rule 609 (b) of the Federal Rules a. "Any person who--

(1) Declaration under penalties

of perjury.--Willfully makes and

. subscribes any return, statement,

or other document, which contains

or is verified by a written decla-

of Evidence, 28 U.S.C., which states in

pertinent part, as follows:

(b) Time limit. Evidence of ration that it is made under the

a conviction under this rule is penalties of perjury, and which

not admissible if a period of he does not believe to be true

more than ten years has elapsed and correct as to every material

since the date of the conviction matter; . . . shall be guilty of

or of the release of the witness | a felony and, upon conviction

from the confinement imposed for thereof, shall be fined not more

that conviction, whichever is the than $5,000, or imprisoned not

later date, unless the court de- more than 3 years, or both, to-

termines, in the interests of ; gether with the costs of prose-

justice, that the probative value cution."

of the conviction supported by

specific facts and circumstances *

substantially outweighs its prej- ‘STATEMENT

udicial effect.”

The indictment in this case was origi-

4. Rule 7(c)(1) of the Federal Rules nally returned in five counts under the

of Criminal Procedure, 18 U.S.C., which style of Criminal Action No. CR74-464A

states, in pertinent part, as follows: (SR. 4-7), the first four counts alleging

"(c) Nature and Contents.

*

_— 7 Counsel for Petitioner was notified by the Office

PI PD gy oo oi of the Clerk of this Court that the transcript

shall be a plain, concise and should not be transmitted at this stage of the pro-

definite written statement of - ceeding. The Petitioner will make reference to

the essential facts constitut- true and correct excerpts from the record and upon

ing the offense charged." | request by this Court for all or part of said record,

| counsel for Petitioner will have same duly trans-

5. The statute under which Petitioner mitted. 5

4

federal income tax evasion for the years

1968 and 1969, and the fifth count relating

to an alleged false statement and unreported

assets on a financial statement which accom-

panied an offer in compromise.

Approximately one week before the

scheduled date for the trial of all five

counts of the original indictment, Govern-

ment counsel filed a motion to consolidate

(R.541) in which they moved the Court for

an order joining the original indictment

with the newly returned indictment styled

Criminal No. CR 75-283A (R. 539). The mo-

tion to consolidate stated that the new in-

dictment “would supercede Count Five of CR

74-464a." At the hearing on said motion on

June 30, 1975, Government counsel, respond-

ing to very specific questions by the court

(PR. 9), represented to the Court and to

defense counsel that the only effect of the

change was to eliminate approximately 85%

of the alleged assets which the defendant

6

was charged with failing to report and thus,

limit its proof to the $30,000 in Federal

Reserve Bank drafts. Based upon this repre-

sentation and in reliance upon its under-

standing that the new indictment merely re-

stricted the Government's proof to the

$30,000 originally pled (PR. 13, 15, 16,

32), the trial court permitted Count Five

to be reindicted and permitted the new in-

dictment (CR 75-283A) to be substituted for

Count Five of the original indictment, all

of which was done over the objection of

defense counsel (PR. 14). The pertinent

terminology of Count Five of the original

indictment charged defendant with having

"stated that he had total assets as of

January 30, 1970, having a cost of $12,502

and a fair market value of $1,619.50, where-

as he then and there well knew and believed

he had certain additional assets as of the

aforementioned date of January 30, 1970,

to-wit: $30,000.00 in funds comprising a

7

a part of certain Federal Reserve bank drafts;

(and the other listed assets which were de-

leted from the second indictment)" (SR. 7).

The pertinent terminology of the new

indiothent (CR 75-283A) charged that defen-

dant “stated that he had total assets having

a cost of $12,502 and a fair market value of

$1,619.50, whereas as he then and there well

knew, he had substantial assets in addition

thereto, to-wit: $30,000, consisting of

three Federal Reserve bank drafts payable

to the order of Leon Cohen" (R. 539). Having

relied upon the representation of Govern-

ment counsel that the only effect of the

new indictment was to eliminate the various

other assets which defendant was accused of

having on January 30, 1970, defendant's at-

torneys did not notice and did not attach

any significance to the fact that the termi-

nology "as of January 30, 1970" had been

omitted from the new indictment.

On the morning of July 7, 1975, at the

8

very time when the trial was scheduled to

begin, Government counsel informed the

Court and defense counsel that the Govern-

ment could not prove a case to support the

income tax evasion charges alleged in Counts

One through Four of the original indictment

and consequently, the Government was dis-

missing with prejudice Counts One through

Four (SR. 70). At this point, the entire

original indictment had been dismissed and

the only thing before the Court was CR 75-

283A, which was the new indictment returned

approximately one week before the trial.

The trial commenced as scheduled on

July 7, 1975, and at the close of the

Government's case, the defendant filed a

motion for acquittal (R. 606), and argued

that the Government had completely failed

to prove that defendant had the alleged

additional assets on January 30, 1970, when

he made the financial statement alleged in

the indictment to be false (R. 336, 339, 350).

9

At that point, the Government for the first

time revealed that it considered February

13, 1970, to be the operative date concern-

ing possession of the assets and the state-

ment "I have no assets," contained on the

offer in compromise dated February 13, 1970,

to be the perjurious statement (R. 342).

The Court, first appearing to agree with

the defendant's understanding of the charge,

expressed his belief that the false state-

ment was supposed to have been made on

January 30, 1970 (R. 341, 342), and then

stated that in its opinion, the evidence

viewed most favorably to the Government did

not support the charge that the defendant

had the alleged additional assets at the

time the statement was made (R. 343, 344).

Instead of granting defendant's motion for

judgment of acquittal, however, the Court

was swayed by the Government's argument that

the January 30, 1970, date had been removed

from the second indictment and that in any

10

event, the statement "I have no assets,”

made by defendant on the February 13, 1970

offer in compromise might be shown to be

false under the evidence previously presented

(R. 344, 345). Defense counsel immediately

directed the Court's attention to the fact

that the allegations of the indictment were

quite specific and that the re-interpretation

of same as made by the Court and prosecutor

constituted an entirely different theory

than that upon which the trial had thereto-

fore been conducted (R. 345-346). The Court,

however, embracing the new date and the new

statement, denied defendant's motion (R. 346-

347). The defendant, prior to proceeding

with his case, expressed his surprise at

being called upon to defend the charges as

of February 13, 1970, as opposed to the

originally charged date of January 30, 1970,

and objected to the prosecution's change of

theory midway through trial (R. 347; 352).

The defense, already hampered by the

11

change of theory, was further set back when

the Court ruled that the defendant's prior

conviction of another offense, although

more than ten years old, would be admitted

should the defendant take the stand in his

own defense (R. 355-361).

At the close of the defendant's case,

defense counsel once again moved for a judg-

ment of acquittal, citing the essential facts

that the charge specifically made in the

indictment had been successfully refuted by

the evidence and that the defendant has been

unfairly put to the burden of defending a

new charge which had not been returned by

the Grand Jury and of which the defendant

was not notified so as to allow for the

preparation of a proper defense (R. 428-

432). The Court, although once again ex-

pressing his initial misunderstanding of

the Government's theory, denied the motion

(R. 433).

After deliberating, the jury returned

12

a verdict of “guilty" (R. 488). Within the

allowable time, the defendant filed a motion

for judgment of acquittal or, in the altern-

ative, motion for new trial (R. 623-650),

and the Government filed a responsive brief

(R. 651-657). During the oral presentation

of these motions, defense counsel reiterated

the same points it had been raising through-

out the trial: that the evidence clearly

failed to support a conviction on the charge

contained within the indictment and that the

defendant had been unfairly surprised at

being forced to defend charges not contained

within the indictment (R. 493-518). The

Court, immediately after defendant's argu-

ment, expressed its concern over the fact

that both it and the defendant had been

"surprised" by the unrecognized deletion of

the January 30, 1970 date from the second

indictment (R. 519). The Court spoke at

length of the fact that his allowance of

the second indictment a week before trial

13

was based on his understanding that the ef-

fect of the new indictment was only to reduce

the assets that the defendant was alleged to

have concealed and that his understanding of

the charge in the indictment did not contenm-

plate any change in the originally alleged

date of January 30, 1970 (R. 518-534). The

Court expressed the view that in changing

the indictments, the Government had been

less than honest with both the Court and

the defendant as to the reasons for and de-

sired effects of the change (R. 523, 533).

The Court further stated that it, like the

defendant, did not fully understand the

charge against the defendant until the argu-

ment on defendant's motion at the close of

the Government's case (R. 533). Finally,

the Court expressed the view, long proffered

by the defendant, that the evidence failed

to establish that the defendant had the

three bank drafts in his possession at the

time he made his January 30, 1970 financial

14

statement (R. 562).

While showing obvious concern over the

manner in which the Government had proceeded

against the defendant, the Court reserved

his ruling on the motions (R. 534), but two

months later, he denied same without written

opinion (R. 658). Thereafter, the defendant

filed his notice of appeal (R. 660-661).

The Court of Appeals for the Fifth Circuit

affirmed this judgment by opinion rendered

on January 3, 1977 (see Appendix) and denied

the defendant's timely filed Petition for

Rehearing and Petition for Rehearing En

Banc on January 31, 1977. Within thirty

days after the denial of the aforesaid peti-

tions, the defendant-appellant filed the

within Writ for Certiorari.

REASONS FOR GRANTING THE WRIT

is AS TO ISSUE NO. 1 CONCERNING

RULE 609(b) OF THE FEDERAL

RULES OF EVIDENCE.

This case represents the first judicial

construction by a Circuit Court of Appeals

15

of the very important standard by which the

trial court's discretion in determining the

admissibility of a more than ten-year-old

prior conviction under Rule 609(b) of the

Federal Rules of Evidence, enacted six days

prior to the trial of the instant case.

After lengthy legislative debate, the final

version of that statute, as adopted, pro-

vides in essence that a criminal defendant

cannot be impeached by the existence of a

prior conviction which is more than ten

years old, “unless the court determines, in

the interests of justice, that the probative

value of the conviction supported by speci-

fic facts and circumstances substantially

outweighs its prejudicial effect ...".

The important question at bar, the resolu-

tion of which will act as precedent in count-

less criminal trials hereafter, is by what

standard should the trial court act in de-

termining the admissibility of a "stale"

conviction.

16

Prior to analyzing the Court of Appeals'

decision, the Petitioner suggests that a

review of the legislative history of Rule

609 is essential. It is significant that

the first draft of the Rule submitted by

the Advisory Committee appointed by Chief

Justice Earl Warren of the Supreme Court

of the United States provided for an arbi-

trary limit of ten years, after which time

the evidence of a prior conviction would

be conclusively inadmissible. In that re-

gard, the Advisory Committee's Note states:

"Few statutes recognize a time

limit on impeachment by evidence

of conviction. However, practical

considerations of fairness and

relevancy demand that some boun-

dary be recognized." (See Federal

Rules of Evidence, Notes of Ad-

visory Committee on Proposed Rule,

28 U.S.C.A., Pp- 288).

It is further significant that the

Court's proposed rule, when sent to the

House of Representatives, was not changed

as it related to the arbitrary ten-year

limit. As stated in the Report of the

17

House Committee on the Judiciary:

"The Committee was of the view

that after ten years following

a person's release from confine-

ment (or from the date of his

conviction) the probative value

of the conviction with respect

to that person's credibility

diminished to a point where it

should no longer be admissible."

(See, Notes of Committee on the

Judiciary, House Report No. 93-

650, Note to Subdivision (b)).

It was not until the proposed rule

the court that the probative

value of the conviction sup-

ported by specific facts and

circumstances, substantially

outweighs its prejudicial ef-

fect. It is intended that

convictions over I0 years old

Will be admitted very rarely

and only in exceptional cir-

cumstances. The rules provide

that the decision be supported

by specific facts and circum-

Stances thus requiring the court

to make specific findings on the

record as to the particular facts

and circumstances it has con-

sidered in determining that the

reached the Senate that the language allow- | probative value of the conviction

: | substantially outweighs its pre-

udicial impact." (Emphasis

| supplied). See, Notes on Com-

added. Regarding that amendment and the mittee on the Judiciary, Senate

ing discretion after a ten-year lapse was

Report No. 93-1277, Note to

scope to be granted same, it is stated in Subdivision (b)).

the Report of the Senate Committee on the As shown above, the early drafters of

Judiciary as follows: Rule 609(b) favored an approach which would

"Although convictions over ten

years old generally do not have

much probative value, there may

be exceptional circumstances un-

der which the. conviction substan-

tially bears on the credibility

of the witness. Rather than ex-

clude all convictions over 10

years old, the committee adopted

an amendment in the form of a

legislatively recognize intolerance of the

use of stale convictions for impeachment

purposes. Only the third and final stage

of adoption saw fit to allow the trial court

ee

to exercise discretion after the ten-year

final clause to the section grant- ; limit and, even then, these older convic-

ing the court discretion to admit

convictions over 10 years old, tions should be admitted "very rarely and

but only upon a determination by

only in exceptional circumstances."

18

_ 19

Additionally, the Senate's amendment which

permitted the trial court to exercise its

discretion was added with the requirement

that in so doing and prior to admitting

said evidence, the trial court must "make

specific findings on the record as to the

particular facts and circumstances it has

considered in determining that the proba-

tive value of the conviction substantially

outweighed its prejudicial impact."

(Emphasis supplied).

Turning to the decision under present

scrutiny, the Petitioner submits that said

opinion condones, adopts and sets forth a

standard of admissibility which is clearly

insufficient when viewed in light of the

‘legislative intent of said statute. As

has been previously stated, the trial court's

decision to admit the evidence must be sup-

ported by "specific findings on the record

as to the particular facts and circumstances

it has considered in determining that the

20

probative value of the conviction substan-

tially outweighs its prejudicial impact."

It is axiomatic, submits the Petitioner,

that in order to determine the relative

weight of two objects, one must consider

the weight of each; nevertheless, the Court

of Appeals erroneously condoned and adopted

a standard in which the trial court merely

considers the weight of only the probative

value without any regard to the weight of

the prejudicial effect. At page 427 of the

opinion, the Court of Appeals noted three

factors considered by the trial court in

determining the admissibility of the con-

viction, and said "although the trial judge

did not explicitly so state, each of these

factors goes to the probative value of the

prior conviction as impeachment evidence."

Having isolated those three factors, the

Court of Appeals then turned to the remain-

ing two-thirds of the equation: does that

probative value (1) substantially outweigh

21

(2) the prejudicial effect? Concerning the

latter factor, the Court of Appeals noted

that the trial court did not “analyze on

the record the nature of possible prejudice

to defendant.” Likewise noting that the

trial court did not utilize the term “sub-

stantially outweighs," the Court of Appeals

nevertheless said the following:

"Since the court had the Rule be-

fore it when it made the determi-

nation that the prior criminal

activity of the defendant was ad-

missible, the finding of the

district court can be interpreted

as concluding that the usefulness

of this past criminal conviction

substantially outweighed the possi-

ble prejudice to defendant."

In short, the "specific standard" by

which a trial court must exercise his dis-

cretion was set forth, for precedential

purposes, as follows:

If a trial court considers any

factors which bear upon credibili-

ty, the appellate court can look

upon same as a finding of proba-

tive value. With such a finding,

the appellate court can assume

that since the trial judge had

the Rule before him when he

22

determined the prior conviction

to be admissible, he must have

felt that the factors he con-

sidered (converted into proba-

tive value by the appellate

court) substantially outweighed

the possible prejudice to defen-

dant -- this, even though the

trial judge made no findings

whatsoever as to the quality,

nature and extent of pre“ idice

to the defendant and though he

made no effort to compare the

relative weight of any such

prejudice vis-a-vis the factors

considered relevant to credi-

bility.

The Petitioner very strenuously urges

that the above standard does not comply with

the spirit nor letter of Rule 609 in that

it permits appellate approval of the admis-

sibility of prior convictions on no more a

showing than that said prior conviction has

"some" probative value. The Court of Ap-

peals' finding to the effect that, "that

the court neither analyzed on the record

the nature of possible prejudice to defen-

dant nor used the explicit words of the

Rule in terms of ‘substantially outweighing'

is not crucial," is, the Petitioner

23

respectfully submits, a misconstruction of

the statute. In comparing the relative

weights of two factors, it is not only cru-

cial, but it is absolutely essential to

know and consider the weight of the second

factor as well as that of the first.

The Court of Appeals concluded its

opinion concerning the Rule 609 question

as follows:

"While Rule 609(b) may envision

a more explicit proceeding with

full findings setting forth the

quality and nature of any possi-

ble prejudice to the defendant,

we are satisfied that the dis-

trict court acted within the

confines of the Rule and did

not abuse its discretion in ad-

mitting the prior conviction."

The Petitioner submits that, as the

case of first impression upon which all

later judicial construction of Rule 609

will be based, the instant opinion should

do more than acknowledge an "envisioned"

standard which should, but need not be

utilized by a trial court; it should do

more than condone an unstated and uncertain

24

"confines of the Rule” within which a trial

judge can be affirmed notwithstanding his

failure to utilize the "envisioned" standard;

and it should do more than affirm an exer-

cise of discretion when all of the relevant

factors necessary to exercise such discre-

tion are neither considered by the trial

court nor placed upon the record for review

by the appellate court. Instead, this Court

should accept the opportunity to convert

legislative intent into judicial reality by

enunciating a clear and concise rule which

calls upon the trial court to consider the

facts and circumstances of both the proba-

tive value and the prejudicial effect and

to place upon the record those facts and

circumstances in order that the appellate

courts will have some measure hy which to

determine whether the trial court acted

properly in exercising his discretion to

the effect that the former "substantially

outweighed" the latter. Without such a

25

standard, the new Rule 609 will be forever

emasculated to the point that any prior con-

viction deemed relevant to credibility will

be freely admitted notwithstanding its age

- a result unwanted by the Supreme Court's

Advisory Committee and the House Committee

on the Judiciary and a result unintended by

the Senate Committee on the Judiciary.

2. AS TO ISSUE NO. 2 CONCERNING

GOVERNMENT COUNSELS' WILLFUL

AND AFFIRMATIVE MISREPRESEN-

TATIONS TO THE TRIAL COURT

AND TO THE DEFENDANT AS TO

THE NATURE AND CAUSE OF THE

PROCEEDINGS.

The Sixth Amendment to the Constitution

of the United States provides that the ac-

cused in a criminal prosecution shall "be

informed of the nature and cause of the ac-

cusation."” In the case at bar, there was a

pre-trial substitution cf indictments, the

effect of which was not understood by either

the trial court or the defendant as a result

of the willful and affirmative misrepresenta-

tions by Government counsel as to the reasons

26

a ee

for and alleged effect of the change. This

misunderstanding as to the nature and cause

of the substituted indictment resulted in

the defendant and the trial court proceed-

ing through the trial on one theory and

Government counsel proceeding upon another

theory.

Were it not for the requirement of

brevity, the Petitioner would quote page

after page wherein the trial court went on

record in its expression of outrage in the

manner in which Government counsel surrepti-

tiously amended the criminal charges on the

eve of trial under the misrepresented guise

of merely deleting assets when, in fact,

the Government intended the change to have

a more far-reaching effect than was made

known to the trial court or to the defen-

dant. While the opinion of the Court of

Appeals states that “there is no indication

that there was any secret or surprise in-

volved in the substitution" (see page 426

27

of opinion), the Petitioner shows that the

trial court, in chastising Government coun-

sel, stated the following on the record:

"I will tell you what disturbs

me the most about this thing is

the fact they were surprised be-

cause frankly I was too.” (R. 519)

(Emphasis supplied) .

"I consider you were less than

straightforward with me about

it (the change)." (R. 523).

"I directed in that conference

some very pointed questions to

you about the reasons for the

change and you never once told

me of any reason other than

deleting those other allega-

tions concerning the assets.'

(R. 527).

". . ». in response to very

pointed questions of mine you

did not, to put it in the com-

mon vernacular, shoot straight

with me. You were less than

honest with me and with the

defendant, too, because 1 asked

you very pointed questions about

what the purpose of the new in-

dictment was for, and based upon

those representations I allowed

you to go to trial. You could

have easily related it at that

time, and under the questions

directed to you, in my opinion,

you were under an obligation as

an officer of the Court not to

Re ames with me and to US

isclose why you had reindict

28

the case. I see now that ob-

viously there was another very

valid reason why you did it or

that you thought you had another

very valid reason and that is

what concerns me about the case.

I may very well have allowed you

to go to trial on it then if you

had told me the truth about it.

I don't know what I would have

done. I will be very frank, I

did not understand until the

motion for judgment of acquittal

was made and you started arguing

it at that time, did I fully un-

derstand what you had done and

why you had changed it." (R. 533).

(Emphasis supplied).

Indeed, even Government counsel con-

ceded that it had not made the alleged ef-

fect

of the change known either to the trial

court or to the defendant. Responding to

the trial court's charges as partially quo-

ted above, trial counsel for the Government

said:

"Your Honor, I have to apologize.

I thought that I had (made the

change clear) and I thought it

was understood. If I didn't--

and I obviously didn't--I

apologize." (R. 527) (Emphasis

supplied).

The Petitioner shows that this Court

should grant the instant writ in that the

29

the appellate court sanctioned a departure

from the constitutional requirements of no-

tifying the defendant of the nature and

cause of the charges against him. In grant-

ing and resolving said writ, this Court

should judicially declare intolerance to

convictions obtained where Government coun-

sel makes affirmative misrepresentations to

both the trial court and the defendant;

where Government counsel is "less than

straight-forward" with the court (R. 523);

where Government counsel "did not...

shoot straight" with the court (R. 533);

where Government counsel is "less than

honest with (the court) and with the defen-

dant, too" (R. 533); where under pointed

questions from the trial court, Government

counsel "play(ed) games" with the court

(R. 533); and where, in reference to the

reasons for changing the indictment, Govern-

ment counsel had not “told the truth about

it” (R. 533).

30

A OTANI Bore me

3. AS TO ISSUE NO. 3 CONCERNING

THE VARIANCE BETWEEN THE

CRIME CHARGED AND THE ALLEGED

CRIME USED IN OBTAINING THE

CONVICTION.

The Fifth Amendment to the United States

Constitution provides that "no person shall

be held to answer for a capital, or other-

wise infamous crime, unless on a presentment

or indictment of a Grand Jury. . .". The

Sixth Amendment provides that the accused

shall “be informed of the nature and cause

of the accusation. . .". Finally, Rule

7(c) (1) of the Federal Rules of Criminal

Procedure, 18 U.S.C. provides that, "the

indictment or the information shall be a

plain, concise and definite written state-

ment of the essential facts constituting

the offense charged."

Initially, it must be noted that 26

U.S.C.A. §7206(1) is a perjury statute. As

was stated in Kolaski v. United States, 362

F.2d 847 (5th Cir. 1966):

"The statute hereinvolved is a

3}

perjury statute. As in the total assets having a cost of $12,502 and a

general statute on perjury, 18

U.S.C.A. §1621, the gist of the fair market value of $1,619.50, whereas he

offense is a false statement."

then and there well knew, he had substantial

Concerning the false statement which

assets in addition thereto, to-wit: $30,000

comprises the "gist of the offense," the .

consisting of three Federal Reserve Bank

Fifth Circuit Court of Appeals stated in

drafts. . .". Since "the truth or falsity

Hillard v. United States, 24 F.2d 99 (5th |

of the statement is to be related to the

Cir. 1928), that:

time the statement is made," Kolaski v.

"It is essential, in charging

perjury, that the indictment United States, supra; since the statement

shall clearly set out wherein

the witness has sworn falsely." |

24 F.2d at 100.

alleged in the indictment to be false was

made "as of January 30, 1970" (Government's

The "variance" of which the Petitioner

Exhibit 1); and since it was shown at trial

complains is that the Grand Jury's indict-

that the statement was not false when made

ment clearly set out wherein it contended

| (R. 343-344; 526), the Petitioner asserts

the defendant had sworn falsely, but the

that he was entitled to a judgment of acquit-

trial court and the appellate court, being

tal. The appellate court, however, affirmed

unable to find the falsity of that state-

the conviction on the basis that the defen-

ment, affirmed the conviction on the grounds

dant swore falsely when he certified on

that another statement was false. The a-

. February 13, 1970 (by filing the offer in

mended indictment, as essentially set forth

compromise on that date), that the various

at page 425 of the appellate court's deci-

documents were “true, correct and complete”

sion, charged that the Petitioner made a

(see p. 426). Accordingly, the Petitioner

false statement when he stated that "he had

33

32

respectfully shows that one statement was

alleged to be false, while another (separate

and different) statement was relied upon to

support the conviction.

Concerning the question of "variances"

in false statement cases, the Fifth Circuit

Court of Appeals, sitting en banc, recently

said:

"The extent or range by which

proof may vary from the indict-

ment before prejudice arises is

much narrower in a false state-

ment case than in many other

prosecutions." United States

v. Lambert, 501 F.2d 943, 948

(5th Cir. 1974).

While the perjury statute involved in

Lambert was not 26 U.S.C.A. 7206(1), the

court there dealt with the inherent diffi-

culties in defending any false statement

case where the indictment fails to inform

the defendant of the specific statement

which he is alleged to have falsified. At

page 858, the court in Lambert said:

"In the false statement case the

inquiry is threefold: Did the

34

a ee 2

defendant say what the indictment

charges him with saying? If he

did, does it depart from the truth?

Was it material? The starting

point for everything is the state-

ment. Once the defendant is in-

formed what it is he is claimed

to have said, then he can marshal

his evidence tending to show that

he did not make the utterance

charged, or that it is true,

or that it was not material.

If the threshold information

iven is not correct, the de-

endant is hampered in de-

fending on all three grounds,

Since the starting point for

the latter two is the content

of his alleged statement.”

(Emphasis supplied).

At page 949, the Lambert court said:

"The mere fact that jurors might

reasonably agree with the re-

characterization of the actual

statement does not cure the pre-

judicial impact upon the defen-

dant of an indictment which, as

it turns out, did not sufficient-

ly apprise him of what evidence

he must marshal and present."

The Court of Appeals, it is respect-

fully submitted, erred in its conclusion

that "the Government proved precisely what

was alleged when it demonstrated that on

February 13, 1970, Cohen then and there

35

well knew that he had $30,000 in Federal

Reserve checks which he failed to disclose,"

(see p. 420), in view of the fact that said

conclusion focuses only upon what the Court

considered to be the true statement without

recognition of what it considered to be the

allegedly false statement. As was stated

previously, "the gist of the offense is a

false statement," Kolaski v. United States,

supra, and in charging and proving a case

of false statement, the Government must in-

form the defendant of precisely that alleged-

ly false statement upon which he is to be

tried. As shown by the Lambert decision at

page 947, in prosecuting the violation of

26 U.S.C.A. 7206(1), the Government is bound

to prove the elements of the offense by

those specific facts charged in the indict-

ment:

"If an indictment alleged particu-

lar facts as constituting an ele-

ment of a charged crime, there is

a variance if the trial judge ad-

mits evidence that makes out the

36

element in a different manner."

Likewise, as was stated in United States

v. Davis, 461 F.2d 83 (5th Cir. 1972):

"Since the Government chose to

charge a section 1708 violation

in a particular manner, we hold

that in any conviction pursuant

to the indictment, the prosecution

is bound by the particular alle-

gations contained therein and it

cannot obtain a conviction by

proof of a violation of the same

statute in a manner not alleged."

In the present case, the Grand Jury

charged the defendant with making one false

statement, and the trial court, prosecutor,

trial jury and appellate court convicted him

of making another. The statement charged

was made on January 30, 1970; the statement

upon which the conviction and appellate de-

cision rested was made on February 13, 1970.

Each statement was made under separate oath

of perjury, each being on a different docu-

ment and each made under different circum-

stances and in response to different in-

gquiries. The Grand Jury had both statements

37

before it when the indictment was drawn, but

significantly, it chose to allege the falsi-

ty of one, but not the other. The defendant

in the instant case marshalled his evidence,

prepared his defense and showed at trial

that the statement alleged in the indictment

to be false, was in fact true. He respect-

fully submits that in affirming the convic-

tion based upon the alleged false statement

to the effect that the forms were "true,

correct, and complete,” the Court of Appeals

erroneously disregarded and ruled in contra-

vention of the Fifth and Sixth Amendments

to the Constitution of the United States.

The Petitioner respectfully requests this

Court to grant the instant writ and declare

that a criminal defendant should be informed

of the charges upon which he is to be tried

and that he should be tried upon the charges

about which he was informed.

38

CONCLUSION

For the reasons set forth above, the

writ of certiorari should be granted.

Respectfully submitted,

JONES & BARNWELL

OE OO A

CHARLES F. B LL

Attorneys for Petitioner

39

APPENDIX

Opinion of the United States Court of

Appeals for the Fifth Circuit in the case

of:

United States of America,

Plaintiff-Appellee,

Vv.

Leon A. Cohen, Defendant-Appellant.

No. 75-3966

40

ong ot eee

See

UNITED STATES v. COHEN 423

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Leon A. COHEN, Defendant-Appelilant.

No. 75-3966.

United States Court of Appeals,

Fifth Circuit.

Jan. 3, 1977.

By a judgment of United States Dis-

trict Court for the Northern District of

Georgia, at Atlanta, William C. O’Kelley,

J,, the defendant was convicted of filing

with Internal: Revenue Service an offer

in compromise of tax liability containing

materially false statements and he ap-

pealed. The Court of Appeals, Roney,

Circuit Judge, held, inter alia, that there

was no variance between the facts

proved relating to defendant’s failure to

disclose possession of $30,000 in checks at

time of offer and indictment charging

the submission of an offer containing

materially false statements, that defend-

ant suffered no prejudice from substitu-

tion of indictment, that trial judge did

not abuse his discretion in allowing a

more than ten-year-old mail fraud con-

viction to be admitted for purpose of

impeachment, and that trial court did

not abuse discretion in admitting as rele-

vant a five-year-old Ictter bearing on de-

fendant’s state of mind with respect to

discharge of tax liability.

Affirmed.

1. Internal Revenue ©2408

Where the taxpayer was in posses-

sion of $30,000 in checks payable to him-

self on date of offer in compromise of

tax liability and did not disclose his pos-

session of those checks on offer in com-

promise form, failure to indicate posses-

sion of those checks as of date of com-

promise offer of February 13th was a

material omission, notwithstanding claim

that the accompanying statement of fi-

nancial condition was as of January 30,

while the checks were dated February 5.

26 U.S.C.A. (1.R.C.1954) § 7206(1); Fed.

Rules Crim.Proc. rule 48, 18 U.S.C.A.

2. Internal Revenue ©2408

Omission of a material fact in an

offer to compromise tax liability renders

such statement just as much not true

and correct within meaning of statute as

the inclusion of a materially false fact.

26 U.S.C.A. (1.R.C.1954) § 7206(1).

3. Internal Revenue <=2446

There was no fatal variance be-

tween indictment charging defendant

taxpayer with submitting an offer in

compromise of tax liability containing

materially false statements and proof

showing that defendant failed to disclose

his possession of $30,000 in checks on the

date of the offer in compromise. 26 U.S.

C.A. (I.R.C.1954) § 7206(1).

4. Criminal Law <= 1032(2)

Since same offense was charged in

both the original and substituted indict-

ments, question of permitting dismissal

of original indictment and the related

substitution was, in first instance, for

trial court. Fed.Rules Crim.Proc. rule

48, 18 U.S.C.A.

5. Criminal Law ¢1167(1)

Since various forms filed by taxpay-

er in connection with offer to compro-

mise tax liability were all part of one

continuous course of dealing and original

indictment respecting the making of an

offer in compromise containing material-

ly false statements referred to dates of

February 13 and January 30, substitu-

424 UNITED STATES v. COHEN

tion in operative date of perjury count

from January 30 to February 13 was not

prejudicial to defendant who was toid

that substitute indictment had clarifying

language with respect to date of offense

and did not request a continuance or op-

portunity to recall any government wit-

nesses when he allegedly learned import

of date. 26 USC.A. (1.R.C.1954)

§ 7206(1); Fed.Rules Crim.Proc. rule 48,

18 U.S.C.A.

6. Courts @=85(3)

Since there was no showing that ap-

plication of rules would not be feasible

or work an injustice, Federal Rules of

Evidence, which became effective six

days prior to commencement of trial for

filing an offer in compromise of tax lia-

bility containing materially false state-

ments, were applicable. 26 U.S.C.A.

(I.R.C.1954) § 7206(1); Federal Rules of

Evidence, rule 609, 28 U.S.C.A.

7. Criminal Law @1153(1)

On questions involving impeachment

of witness, determination of district

court is to be tested on review by abuse

of discretion standard.

8. Criminal Law ¢=369.1

Assumption that prior conviction

demonstrates propensity on part of de-

fendant to have acted on present occa-

sion in conformity with criminal charac-

ter suggested by previous conviction is

impermissible. Federal Rules of Evi-

dence, rule 404(b), 28 U.S.C.A.

9. Witnesses = 337(6)

Where sufficient evidence in record

of prosecution for filing an offer in com-

promise of tax liability containing mate-

rially false statements indicated that tri-

al judge thoroughly analyzed issue of

whether a more than ten-year-old mail

fraud conviction could be used to

impeach defendant if he took stand and

concluded that evidence of such prior

—

conviction could be introduced on various

factors, failure of trial court to analyze

on record the nature of possible preju-

dice to defendant was not crucial and

trial court did not abuse discretion in

admitting prior conviction. 26 U.S.C.A.

(I.R.C.1954) § 7206(1); Federal Rules of

Evidence, rules 609, 60%(b), 28 U.S.C.A.

10. Criminal Law = 1153(1)

Determination of relevancy is for

trial judge and wil! not be disturbed in

absence of clear showing of abuse of dis-

cretion.

11. Internal Revenue e=2448

Since there was ample indication

that five-year-old letter did bear on de-

fendant’s state of mind, vis-a-vis the

matter of discharging past tax liability,

district court did not err in determining

that letter was relevant and admissible

in prosecution for submitting an offer in

compromise of tax liability containing

materially false statement. 26 U.S.C.A.

(I.R.C.1954) § 7206(1).

Appeal from the United States Dis-

trict Court for the Northern District of

Georgia.

Before AINSWORTH and RONEY,

Circuit Judges, and ALLGOOD, District

Judge.

RONEY, Circuit Judge:

Defendant Leon A. Cohen appeals his

conviction for filing with the Internal

Revenue Service a Department of the

Treasury Form 656, entitled “Offer in

Compromise,” containing materially false

statements, in violation of 26 U.S.C.A.

§ 7206(1). Defendant asserts four errors

on this appeal: (1) that there was a fa-

tal variance between the proof offered

and the offense alleged in the indictment

and that the evidence was insufficient to

UNITED STATES v. COHEN 425,

show that his statements as to his assets

were false; (2) that a last minute substi-

tution of indictments worked an unfair

deprivation of his right to be informed

of the charges against him; (3) that the

district court abused its discretion in rul-

ing that a thirteen-year-old mail fraud

conviction would be admissible to

impeach the defendant if he chose to

testify; and (4) that a five-year-old let-

ter received in evidence was irrelevant

and should have been excluded. Finding

these claims without merit, we affirm.

On February 13, 1970, Cohen, who was

over $150,000 delinquent in federal in-

come tax payments, completed an Offer

in Compromise form for submission to

the Internal Revenue Service. He

signed that document under a declara-

tion stating that “I have examined this

offer, including accompanying schedules

and statements, and to the best of my

knowledge and belief, it is true, correct,

and complete.” With that document he

also filed a Statement of Financial Con-

dition, which stated it was “as of” Janu-

ary 30, 1970. Neither document listed as

assets three checks dated February 5,

1970 and payable to Cohen, in a total

amount of $30,000. Defendant stated on

the Offer in Compromise “I have no as-

sets.”

In September of 1974, a five-count in-

dictment was returned against the de-

fendant. The first four counts charged

perjury in connection with false state-

ments made on various income tax re-

turns. The fifth count charged perjury

in connection with the omission from the

Offer in Compromise of various assets

supposedly in defendant’s possession.

Approximately a week and a half before

trial commenced, the Government, with

the district court’s permission, substitut-

ed a new count five, alleging solely the

omission of the $30,000 in checks from

the Offer in Compromise. Before the

trial actually began, the Government

then dismissed the four counts pertain-

ing to false income tax returns. Defend-

ant was tried and convicted solely for

omitting the three checks worth $30,000

from the Offer in Compromise.

Variance Between Indictment and Proof

The indictment on which Cohen was

tried alleged that:

{O}n or about the 13th day of Febru-

ary, 1970 .. Leon A. Cohen

. . did wilfully and knowingly

make and subscribe a Department of

the Treasury Form 656 entitled ‘Offer

in Compromise,’ . . together

with an attached and accompanying

Department of the Treasury Form 433,

entitled ‘Statement of Financial Condi-

tion and Other Information,’

{which} said ‘Officer in Compromise’

and attachments thereto stated that

he had total assets having a cost of

$12,502 and a fair market value of

$1,619.50, whereas, as he then and

there well knew, he had substantial

assets in addition thereto, to wit: $30,-

000 consisting of three Federal Re-

serve Bank drafts

The defendant alleges that the only doc-

ument which definitely sets forth his as-

sets is the Statement of Financial Condi-

tion, which was “as of” January 30, 1970.

The defendant's position is that the

checks dated February 5, 1970, were

properly excludable from that document,

and that when he certified on February

13, 1970 that the accompanying state-

ment of Financial Condition was “true,

correct and complete,” he was merely

certifying that it reflected his financial

position as of the 30th of January, which

he maintains it did.

{1-3] The uncontested facts show

that on February 13, 1970, the date of

BEST COPY AVAILABLE

426 UNITED STATES v. COHEN

the Offer in Compromise, the defendant

was in possession of $30,000 in checks.

Defendant did not disclose his possession

of those checks on the Offer in Compro-

mise form. This failure to indicate pos-

session of those checks as of the date of

the compromise offer was a material

omission, making the form something

other than “true, correct and complete.”

The Government proved precisely what

was alleged when it demonstrated that

on February 13, 1970, Cohen “then and

there well knew” that he had $30,000 in

Federal Reserve checks, which he failed

to disclose. The omission of a material

fact renders such a statement just as

much not “true and correct” within the

meaning of 26 U.S.C.A. § 7206(1), as the

inclusion of a materially false fact. See

United States v. Jernigan, 411 F.2d 471

(5th Cir.), cert. denied, 396 U.S. 927, 90

S.Ct. 262, 24 L.Ed.2d 225 (1969); Siravo

v. United States, 377 F.2d 469 (ist Cir.

1967). Thus there is no force to the

contention that there was a variance be-

tween facts proved and the crime al-

leged, and the evidence was sufficient to

support the conviction.

Substitution of Indictments

The defendant contends that he was

misled as to the nature of the charges

against him because of the last minute

change in the wording of the indictment,

and that therefore he should be afforded

a new trial. The defendant particularly

protests what he conceives to be the

change in the operative date of the per-

jury count from January 30, 1970 to

February 13, 1970.

[4,5] Since the same offense was

charged in both the original and substi-

tuted indictments, the question of per-

mitting the dismissal of the original in-

dictment and the related substitution

was, in the first instance, for the trial

court. See F.R.Crim.P. 48; United

States v. Perkins, 383 F.Supp. 922, 931

(N.D.Ohio 1974). Since the various

forms filed by the defendant were all

part of one continuous course of dealing

with the Internal Revenue Service, and

since the original indictment made refer-

ence to the date of February 13, 1970, as

well as January 30, 1970, the district

court’s determination that the substitu-

tion was not prejudicial was not in error.

United States v. Arradondo, 483 F.2d

980, 983 (8th Cir. 1973), cert. denied, 415

U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480

(1974).

Furthermore, when the substitution

was requested by the Government, the |

accompanying motion explicitly stated

“(t]he new indictment also contains some

clarifying language with respect to the

date of the offense.” The new indict- |

ment was read aloud in open court to ©

the defendant. At the close of the

Government's case, when the defendant

claimed he learned of the true import of

the change, he did not request a continu- |

ance or the opportunity to recall and re- |

examine any of the Government witness-

es. There is no indication that there was

any secret or surprise involved in the

substitution. Given these factors, there

was no prejudice to the defendant result-

ing from the change in indictments

which would warrant a new trial.

Admissibility of Prior Conviction

{6] The trial of this case commenced

six days after the new Federal Rules of

Evidence became effective.

there was no showing by either party

that the “application of the rules would

not be feasible, or would work injustice,”

the rules were applicable to the proceed-

ings below. See Rules of Evidence, Pub.

L.No. 93-595, § 1, 88 Stat. 1926 (1975).

Because |

*

UNITED STATES v. COHEN 427

Rule 609 provides that a prior conviction

cannot be admitted without special court-

determination of probative value, if

more than ten years have elapsed since

the date of conviction or release, which-

ever is the later date, The Rule pro-

vides: :

(a) General Rule. For the purpose of

attacking the credibility of a witness,

evidence that he has been convicted of

a crime shall be admitted if elicited

from him or established by public

record during cross-examination but

only if the crime (2) in-

volved dishonesty or false statement,

regardless of the punishment.

(b) Time Limit. Evidence of a convic-

‘ tion under this rule is not admissible if

a period of more than ten years has

elapsed since the date of the convic-

tion or of the release of the witness

from the confinement imposed for that

conviction, whichever is the later date,

unless the court determines, in the in-

terests of justice, that the probative

value of the conviction supported by

specific facts and circumstances sub-

stantially outweighs its prejudicial ef-

fect.

In the instant case, the government

notified the defendant that, should he

choose to testify, it intended to use a

previous conviction for the crime of mail

fraud to impeach him during cross-exam-

ination. That conviction was the result

of a guilty plea by the defendant in con-

nection with the very same activities

which gave rise to the tax liability which

he was trying to settle through his Offer

in Compromise. Defendant had been

sentenced to three vears imprisonment

for the crime of mail fraud, and had

served from April 10, 1961 until May 15,

1962. Since the trial commenced in July

of 1975, the time clapsed from the date

of release was just under 13 years, 2

months. Nonetheless, the trial court

ruled that this conviction would be ad-

missible to impeach the defendant if he

testified, thus invoking the provisions of

Rule 609(b).

{7] Since the effective date of the

Rules, this Court has not had occasion to

consider the type of determination a dis-

trict court must make under Rule 609(b)

to admit into evidence a conviction over

ten years old. On questions involving

the impeachment of a witness, the deter-

mination of the district court is to be

tested on review by the abuse of discre-

tion standard. Goddard v. United

States, 131 F.2d 220 (5th Cir. 1942);

United States v. Allison, 414 F.2d 407

(9th Cir.), cert. denied, 396 U.S. 968, 90

S.Ct. 449, 24 L.Ed.2d 433 (1969);

S.Rep.No. 1277, 93d Cong., 2d Sess., Rule

609(b) (1974). Under Rule 609, discre-

tion must be exercised by a specific stan-

dard. The Rule requires a finding on

specific facts and circumstances that

prejudicial effect will be outweighed by

probative value.

In evaluating the admissibility of the

conviction the district court noted the

nature of the prior crime, the similarity

between the offense for which he was

presently being tried and the offense for

which he previously entered a guilty

plea, and that both the events to be tes-

tified to by the defendant and the acts

which constituted the crime he was cur-

rently alleged to have committed oc-

curred within ten years of his rel

from confinement for the earlier crime.

Although the trial judge did not ex

plicitly so state, each of these fac

goes to the probative value of the prio

conviction as impeachment evide

That the nature of the crime was o

involving dishonesty indicates that

fendant might be the type of person w

would not take the judicial oath serious-

428 UNITED STATES v. COHEN

ly. That the offenses were similar sug-

gests that his denials of current miscon-

duct might not be as trustworthy as they

normally would in the absence of previ-

ous misconduct of the same kind. Be-

cause defendant would be recounting

events and acts relevant to the crime of

perjury that transpired during a period

within ten years after his release from

confinement for mail fraud, the jury

might believe that his version of those

events was colored by his still recent dis-

honest conduct and was thus less than

truthful.

In United States v. San Martin, 505

F.2d 918, 923 (5th Cir. 1974), this Court

observed that “prior crimes involving de-

liberate and carefully premeditated in-

tent—such as fraud and forgery—are far

more likely to have probative value with

respect to later acts than prior crimes

involving a quickly and spontaneously

formed intent.” Similarly such crimes

are more probative on the issue of pro-

pensity to lie under oath than more vio-

lent crimes which do not involve dishon-

esty. See Ladd, Credibility Trends, 89

U.Pa.L.Rev. 166 (1940). Since mail

fraud is within this category of offenses,

its probative value is enhanced.

[8] Of course, the assumption that a

prior conviction demonstrates a propensi-

ty on the part of the defendant to have

acted on the present occasion in con-

formity with the criminal character sug-

gested by the previous conviction is im-

permissible. See Fed.R.Evid. 404(b).

This is because our system of criminal

justice focuses solely on the commission

of specific forbidden acts, rather than

the punishment of those persons who

have a criminal or evil character. Un-

fortunately the trial court seemed to en-

gage, at least partially, in this improper

- assumption, while otherwise property fo-

cusing on the likelihood that the previ-

ous conviction indicated a probable lack

of veracity. Nonetheless, in reviewing

the factors relied on by the district

court, it is apparent that they all were

relevant to the impeachment inquiry.

Having isolated these factors, the dis-

trict judge then found on the record that

they formed “a basis for an exception

and that justice would not be counterbal-

anced against the defendant.”

{9} The provisions of Rule 609 re-

quire that the court find that probative

value “substantially outweigh” prejudi-

cial effect. Since the court had the Rule

before it when it made the determina-

tion that the prior criminal activity of

the defendant was admissible, the find-

ing of the district court can be interpret-

ed as concluding that the usefulness of

this past criminal conviction substantial-

ly outweighed the possible prejudice to

defendant. That the court neither ana-

lyzed on the record the nature of possi-

ble prejudice to defendant nor used the

explicit words of the Rule in terms of

“substantially outweighing” is not cru-

cial. Sufficient evidence in the record

indicates that the trial judge made a

thorough and thoughtful analysis of the

issue and based his conclusion upon vari- |

ous factors which were then hefore him.

While Rule 609(b) may envision a more

explicit proceeding with full findings set- |

ting forth the quality and nature of any

possible prejudice to the defendant, we

are satisfied that the district court acted

within the confines of the Rule and did

not abuse its discretion in admitting the

prior conviction.

Admissibility of a Five-Year-Old Letter

{10,11} Defendant’s final contention

concerns the admissibility of a five-year- |

old letter which the Government offered |

in evidence to prove defendant’s willful-

ness. Because of the age of the letter

UNITED STATES v. COHEN 429

the defendant claimed it was irrelevant

and inadmissible. The determination of

relevancy is for the trial judge, and will

not be disturbed in the absence of a

clear showing of abuse of discretion.

United States v. 110 Bars of Silver, 508

F.2d 799 (5th Cir. 1975); United States

v. Watts, 505 F.2d 951 (5th Cir. 1974),

vacated on other grounds, 422 U.S. 1032,

95 S.Ct. 2648, 45 L.Ed.2d 688 (1975).

Since there was ample indication that

the letter did in fact bear on defendant’s

state of mind, vis-a-vis the matter of

discharging his past tax liability, the dis-

trict court did not err in determining

that the letter was relevant and admissi-

ble in evidence.

AFFIRMED.

CERTIFICATE OF SERVICE

I, Charles F. Barnwell, hereby certify

that I have this day served counsel for the

United States of America with three (3) copies

of the foregoing "Petition for a Writ of

Certiorari," by depositing said copies in the

United States Mail in an envelope with airmail

postage prepaid thereon, addressed to:

Solicitor General

Department of Justice

Washington, D. C. 20530.

This 25th day of February, 1977.

Charles F. Barnwell

Attorney for Petitioner