# Petition — Cohen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 914

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1343%3A1. Public record. Not legal advice.