Petition — Berkson v. United States

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IN THE | MAR 14 1877

Supreme Court of the United 3 RODAK, JR., CLERK

—

OCTOBER TERM, 1976 —

No. 76-1269

ROBERT BERKSON,

Petitioner,

=

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

EDWARD BRODSKY

Spengler, Carlson, Gubar, Churchill

& Brodsky, Esqs.

280 Park Avenue

New York, New York 10017

(212) 682-4444

HENRY J. BOITEL

233 Broadway

New York, New York 10007

(212) RE 2-8104

Attorneys for Petitioner

TABLE OF CONTENTS

PAGE

t, ks Lek ads ian sdnsendes ii

Se ree 1

r,, ] · wwWW ea de 1

// IT...... 2

Questions Presented for Revigxgc 2

Constitutional Provisions and Rules Involved ...... 3

Rule 801, Federal Rules of Evidence .............. 4

PUY UGi'gs 000s ve ccceweeeudecass 5

Reasons for Granting the Writ .................. 9

A) The intended and proper scope of Rule

801(d) (1) (A) of the Federal Rules of Evi-

r ia 9

B) The prior testimony herein did not satisfy

basic evidentiary standards applicable to

Federal criminal trials ................. 13

C) Even if admissible as trial evidence, the

prior testimony herein should not have been

permitted to serve as the sole evidentiary

basis for the petitioner’s conviction ...... 19

Neen TTT ee ˙ .... dene 21

Appendix “A” (Court of Appeals, Order of Affirm-

ance; December 17, 1976)))0i:w'b la

Appendix “B” (Court of Appeals Order Denying Re-

hearing; February 15, 1977 );u:Q : 2a

ii

PAGE

Appendix C“ (Court of Appeals Order Denying Re-

hearing en banc; February 15, 1977) ........ 3a

Appendix “D” (Constitutional Provisions and Rules

IED ok occ cc Ooi cecvcadsovciacvivsoacin®s 4a

TABLE OF AUTHORITIES

Cases:

Bronston v. United States, 409 U.S. 352 (1973) .... 17

California v. Green, 399 U.S. 149 (1970) .. 9, 10, 18, 20

Northwestern Mutual Life Co. v. Linard, 498 F.2d

559, 560 (2d Cir., 197õkõu»mĩnſr-:--···Uĩ— U U! 13

Taylor v. Baltimore & Ohio Railroad Co., 344 F. 2d

281, 288-5 (2d Cir., 1066s))00ỹ/.˖t 12

United States v. Allsup, 485 F.2d 287 (8th Cir.,

197 ęnuu—P 7 12

United States v. Barrett, 539 F.2d 244, 254 (Ist Cir.,

d . <hascons 13

United States v. Briggs, 456 F. 2d 908, 909-911 (2d

G. „ „„ „V „„ „„ „ „„ 12

United States v. Carella, 411 F.2d 729, 732 (2d Cir.,

r ˙ ˙ AuVͤMAAn...m.... he 12

United States v. Classen, 424 F. 2d 494, 495 (6th Cir.,

/ oe Cees ¼ we 6 4 12

United States v. Cunningham, 446 F.2d 194, 198 (2d

„„ 12

United States v. DeSisto, 329 F.2d 929 (2d Cir.,

„ ˙—A eaeeNeeeenes 12

United States v. Fiore, 443 F.2d 112 (2d Cir., 1971) 12

—

iii

PAGE

United States v. Gerry, 515 F.2d 130 (2d Cir., 1975) 12

United States v. Gregory, 472 F.2d 484, 487-9 (5th

rc ͤ¼8mꝗ; CCOEN TAs ieee 12

United States v. Insana, 423 F.2d 1165, 1169-70 (2d

ß ͤ Arr.... 12

United States v. Jordano, 521 F.2d 695 (2d Cir.,

J%;˙ ⁵˙ꝗ 51A 0S 400 6 1UC.-üſñi 13

United States v. Klein, 488 F.2d 481 (2d Cir., 1973) 12

United States v. Mingoia, 424 F. 2d 710, 713 (2d Cir.,

/// A » 12

United States v. Nuccio, 373 F. 2d 168 (2d Cir., 1967) 12

United States v. Panzavecchia, 446 F. 2d 1293, 1297

, ae Nice wens 12

United States v. Pfingst, 477 F.2d 177, 197-198 (2d

. ̃²˙ ˙ eek Ss oud cael bees 13

United States v. Rivera, 513 F.2d 519, 525-528 (2d

r eee cde s cekh so see's 13

United States v. Robinson, 503 F.2d 208, 217 (7th

, ̃ͤ hin ghd ³˙ A ds 6666s 13

United States v. Ruth, 461 F.2d 1213 (D.C. Cir.

%%% a a 12

United States v. Skelley, 501 F.2d 447, 454-5 (7th

/ ͤ EU Lanes weg cednwassk ee’ 13

United States v. Small, 443 F.2d 497, 498-500 (3d

eee 12

United States v. Tavares, 512 F.2d 872 (9th Cir.,

%% a .. ˙˙ r 00⏑. 5 13

United States v. Wol fish, 525 F.2d 47, 461-2 (2d Cir.,

%%% ̃ —. x ves as 13

iv

PAGE

United States Constitution:

Ur.... OO 3

n ! 3

United States Code:

15 Ua. 5

DU... 5

IB enn... eee 5

18 ene... / 5

Federal Rules of Evidence:

x Se 4,17

0a. CCS — 5,17

kk, PT)! 4,17

L 2, 4, 9, passim

Other Authorities:

Leading Questions, 6 Crim. L.Q. 21, 22 (1963) 17

U. S. Code Cong. & Ad. News, 98rd Cong.

D...... ee 20

r . oc cccccscevccsceussee 17

Wigmore on Evidence, 1041 ................. 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

— ͤ — > — :-t—st——

ROBERT BERKSON,

Petitioner,

=

UNITED STATES OF AMERICA,

Respondent.

— — > — ——S—=SO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Preliminary Statement

Petitioner, Robert Berkson, prays that a Writ of Cer-

tiorari issue to review an order of the United States

Court of Appeals for the Second Circuit, entered on De-

cember 17, 1976, which affirmed, without opinion, a judg-

ment of conviction previously entered against him on

July 21, 1976 in the United States District Court for the

Southern District of New York.

Opinions Below

No opinion was written by the Court of Appeals or

by the District Court.

2

Jurisdiction

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254 (1).

The order of affirmance by the Court of Appeals was

filed on December 17, 1976 (Appendix “A” hereto, infra,

p. la‘). On February 15, 1977 the Court of Appeals

denied rehearing (Appendix “B” hereto, infra, at 2a),

and denied rehearing en bane (Appendix C“ hereto,

infra, at 3a).

This petition is filed within 30 days of the denial by

the Court of Appeals of the timely petition for rehearing.

Questions Presented For Review

Rule 801 (d) (1) (A) of the Federal Rules of Evidence

provides that prior, inconsistent, sworn testimony of a

witness may be used at trial as substantive evidence.

In the present case, an indispensable prosecution

witness gave trial testimony which exculpated the peti-

tioner. Relying upon Rule 801 (d) (1) (A), the trial court

permitted the government to read to the jury a portion

of the witness’s Grand Jury testimony. The Grand Jury

testimony consisted of several questions and answers, all

of which would have been inadmissible if elicited at trial

in the first instance, since they contained conclusions and

opinions, failed to specify the reasons for the witness’s

1 References “la”, et. seq., are to the appendices annexed to

this petition.

References “Tr. 1”, et seq., are to the trial transcript. A

copy of the Appellant’s appendix which was filed in the Court

of Appeals will be certified to this Court. It contains a sub-

stantial portion of the trial transcript, and retains the original

pagination.

beliefs, and failed to focus upon the knowledge and ac-

tivities of the petitioner, as distinguished from the knowl-

edge and activities of others.

When confronted with the apparently inconsistent

thrust of his grand jury testimony, the prosecution wit-

ness disavowed the accusatorial aspects of that testimony.

Nevertheless, the grand jury testimony was received as

substantive evidence and the jury was instructed that the

witness’s grand jury testimony, alone, if believed, pro-

vided a sufficient basis to convict the petitioner for

knowing participation in mail and stock fraud.

Within the above context, the following questions are

presented :

1. Do the proper administration of justice in the

Federal Courts and Constitutional due process of law

require that before it can be admitted as substantive

evidence against a defendant at a criminal trial, the prior

inconsistent statement of a government witness, given in

an ex parte proceeding, must comply with federal evi-

dentiary standards other than the precise hearsay stand-

ard which rule 801 (d)(1)(A) of the Federal Rules of

Evidence was designed to overcome?

2. Assuming that such prior testimony is admissible

as substantive evidence, despite its evidentiary deficien-

cies, may it be utilized as the sole evidentiary basis for a

conviction of the defendant?

Constitutional Provisions And Rules Involved

United States Constitution:

This case involves the due process clause of the 5th

Amendment and the confrontation clause of the 6th

Amendment, which are set forth in Appendix “D” hereto,

infra.

Federal Rules of Evidence:

This case involves the following italicized portions of

Rule 801 of the Federal Rules of Evidence, specifically

subsection (d) (1) (A):

Rule 801.

Definitions

The following definitions apply under this article:

(a) Statement. A “statement” is (1) an oral or

written assertion or (2) nonverbal conduct of a person,

if it is intended by him as an assertion.

(b) Declarant. A “declarant” is a person who makes

a statement.

(c) Hearsay. “Hearsay” is a statement, other than

one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the

matter asserted.

(d) Statements which are not hearsay. A statement

is not hearsay if—

(1) Prior statement by witness. The declarant

testifies at the trial or hearing and is subject to

cross-examination concerning the statement, and

the statement is (A) inconsistent with his testi-

mony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other

proceeding, or in a deposition, or (B) consistent

with his testimony and is offered to rebut an ex-

press or implied charge against him of recent

fabrication or improper influence or motive, or

(2) Admission by party-opponent. The state-

ment is offered against a party and is (A) his

5

own statement, in either his individual or a rep-

resentative capacity or (B) a statement of which

he has manifested his adoption or belief in its

truth, or (C) a statement by a person authorized

by him to make a statement concerning the sub-

ject, or (D) a statement by his agent or servant

concerning a matter within the scope of his agency

or employment, made during the existence of the

relationship, or (E) a statement by a co-conspira-

tor of a party during the course and in further-

ance of the conspiracy.

The case also involves Rules 602, 611 and 701, which

are set forth in Appendix “D” hereto, infra.

Statement of the Case

The petitioner was one of several principles of the

New York stock brokerage firm of Packer, Wilbur &

Co., Inc. During the period from August through De-

cember, 1970, various employees of the firm forged cus-

tomers’ names upon stock powers, thus enabling the firm

to utilize certain customers’ securities for its own benefit.

The forgeries were accomplished by or under the super-

vision of James Gallentine, the firm’s cashier.

In June, 1975, more than four years after the under-

lying events, a Federal Grand Jury in the Southern Dis-

trict of New York returned an indictment naming four

individuals as defendants: (1) the firm’s president, Wil-

bur Hyman (who was a fugitive at the time of trial) ;

(2) Maurice Rind, the firm’s vice-president; (3) James

Gallentine, the firm’s cashier; and (4) Petitioner, the

firm’s secretary.

The indictment charged a number of counts of mail

fraud (18 U.S.C. § 1341), stock fraud (15 U.S.C. § 77q

la], interstate transportation of forged securities (18

U.S.C. § 2314) and conspiracy to commit those crimes

(18 U.S.C. § 371).

6

Gallentine entered a plea of guilty to conspiracy and

testified as a government witness. Rind and petitioner

were jointly tried. A first trial concluded when the jury

was unable to agree upon a verdict as to either defendant.

The second trial concluded with verdicts of guilty, as to

both defendants, upon one count of mail fraud, two counts

of stock fraud, four counts of interstate transportation

of forged securities, and one count of conspiracy.

Gallentine was an indispensable witness for the prose-

cution. The stock powers in question were forged and

negotiated by him or by various subordinate employees

at his direction. Although a number of those subordinate

employees testified at the trial, none of them had any

dealing with petitioner with respect to those activities.’

Gallentine’s trial testimony was that he engaged in

the fraudulent scheme pursuant to conversations with

Hyman and Rind.“ He made clear that, both in the

normal course of his duties and in the execution of the

aforesaid scheme, he took orders only from Hyman and

Rind.“ At no time in his trial testimony did Gallen-

tine state that the petitioner had any involvement or con-

temporaneous knowledge relating to the unauthorized use

of customer securities. Indeed, Gallentine denied that

during the execution of the scheme he had any conversa-

tion with petitioner about forging customer securities,

or that petitioner was ever present during such a con-

versation.“

There being no other evidence in the case to establish

such knowledge or involvement on the part of the peti-

tioner, the government was permitted, over objection, to

2 Tr. 2-5, 6-9, 10-28, 29-30.

Tr. 40-2, 56-8, 71-83, 89-91.

Tr. 33.

5 Tr. 95-7, 102.

7

introduce into evidence certain portions of Grand Jury

testimony which had been given by Gallentine on June 4,

1973—more than two years after the underlying events

and three years prior to trial. (Tr. 97-101, 103).

In order to facilitate discussion of Gallentine’s Grand

Jury testimony, we have numbered each of the questions:

[1] “Q. Now, apart from Mr. Rind, did you have

any conversation with either of the principals of

the company with regard to the use of customers’

Leasepac stock for the benefit of the firm?

“A. No, no. Mr. Rind just handled—Mr. Rind

set up the transactions, be they sales or loans, and

he followed through. Mr. Berkson and Mr. Hyman

— aware, yes, but my contact was with Mr.

ind.

[2] “Q. Well, you say that Mr. Hyman and Mr.

Berkson were aware. Could you tell us how you

know Mr. Hyman and Mr. Berkson were aware

of what was going on?

“A. Well, I had conversation with them as to

how we got through the day cash-wise, what we

had to do in order to get up the amount of cash

necessary.

[3] “Q. In other words, from time to time you

would tell them that Mr. Rind arranged for the

transactions in stock to generate some cash and

you provided customers’ securities to cover that

transaction, and that is how you got the cash on

a particular given day?

“A. Yes, yes.

[4] . And you would explain to them that you

actually went through the process of the unau-

thorized use of customers’ securities for this pur-

pose?

8

“A. Yes, yes. I didn’t state specifically what

accounts or which customers were used but gen-

erally, just generally speaking, we were using cus-

tomers’ securities.

[5] “Q. And both Mr. Berkson and Mr. Hyman

knew about that?

„A. Yes.

[6] “Q. And the reason you can say that is that

you specifically recall telling them about what was

going on?

„A. Yes, I spoke to them about it.” (Tr. 103-

105).

The District Court initially ruled that the Grand

Jury testimony was admissible for purposes of impeach-

ment, but reserved decision as to whether it would be

received as substantive evidence pursuant to Rule 801

(d)(1)(A) of the Federal Rules of Evidence (Tr. 97-

101). Subsequently, however, the Court charged the

jury that the testimony was substantive evidence in the

case (Tr. 569). Moreover, the trial court instructed the

jury that petitioner could be convicted upon the Grand

Jury testimony alone.

“If you believe the testimony of Gallentine to be

true beyond a reasonable doubt, that testimony

is sufficient to convict the defendant even though

it is not corroborated by any other evidence.” (Tr.

567).

* „ * „ *

“In essence . if you find, for example, that

Gallentine was saying the truth when he appeared

before the Grand Jury, you may consider that as

evidence in the case.

“On the other hand, if you find that he was not,

then you will, of course, disregard it or compare

it to other statements which were made which

indicate that the other statements are true. Those

9

are the ones where he said Berkson knew nothing

about it.” (Tr. 569-570).

The otherwise barren nature of the government’s case

against Berkson is demonstrated by the prosecutor’s

statement to the trial court, at the end of the govern-

ment’s case, during the prosecutor’s plea that the Grand

Jury testimony be received as substantive evidence:

“Well, your Honor, it seems to me that there is,

the very least, a potential problem on the subject

of motions to dismiss the case at the close of the

government’s case without that evidence in the

case as substantive evidence.” (Tr. 356).

Reasons for Granting the Writ

This case presents important questions concerning the

admissibility and sufficiency of evidence in Federal courts,

particularly at criminal trials. It calls for an interpreta-

tion of a provision of Rule 801 of the recently enacted

Federal Rules of Evidence. It is clear that the provision

in question will regularly be invoked in criminal trials

throughout the Federal system.

A. The Intended and Proper Scope of Rule 801(d)

(1) (A) of the Federal Rules of Evidence.

Rule 801 (d) (1) (A) of the Federal Rules of Evidence

{hereinafter “subsection (A)”] has formally added a

new dimension to the character of evidence which may

serve as substantive proof of a defendant’s guilt. A de-

fendant may now be convicted upon the prior sworn testi-

mony of a witness, despite the fact that the prior testi-

mony was given in an ex parte proceeding (and thus, not

subject to cross-examination at the time it was given),

and despite the further fact that the witness repudiates

the testimony at the trial.

The Constitutional foundation for the admissibility of

such prior testimony is to be found in California v.

10

Green, 399 U.S. 149 (1970). There, this Court held that

the use, as substantive evidence of a prior inconsistent

statement does not per se, violate the Sixth Amendment

right of confrontation. (California v. Green, supra, 399

U.S. at 158-164).

The theory is that confrontation is preserved since

the witness is available at trial to be cross-examined with

respect to the prior testimony, and the jury is in a posi-

tion to assess the credibility of his present rejection of

the prior testimony. California v. Green, supra, 399 U.S.

at 159-162.

In ruling upon the Constitutionality of the California

procedure which permitted the use of such testimony,

this Court specifically distinguished satisfaction of the

confrontation requirement from satisfaction of non-con-

stitutional evidentiary standards applicable to Federal

trials. California v. Green, supra, 399 U.S. at 163, fn.

15. Indeed, both in Federal and State courts, the majority

view has been to prohibit the substantive use of prior

inconsistent statements.“

Subsection (A) represents, therefore, a substantial

break with traditional wisdom as to evidentiary standards

in Federal courts. The reason for the former rule was

a commitment to evidentiary reliability. The change in

the rule does not represent a diminution of that commit-

ment, but rather a reassessment of whether the objective

was, in fact, served by the rule. To the extent that par-

ticular applications of the new rule would undermine that

objective, they should be rejected.

Prior inconsistent statements are usually used by a

cross-examiner to impeach a witness. For that purpose,

“inconsistency” has usually been given a broad interpre-

„ The cases are collected in III Wigmore, Evidence

$1018 (3rd Ed. 1940) and Annot. 133 A. L. R. 1454, 1455-1457

(1941). See also: California v. Green, supra, 399 U.S. at 154-

155 and at 164, fn. 15.

11

tation and the eross-examiner has been given a good deal

of latitude. We are concerned here with a qualitatively

different type of situation. In attempting to use a prior

inconsistency as substantive evidence constituting the

witness’s sole inculpatory accusations against a defend-

ant, the concept of “inconsistency” must be strictly con-

strued, and a determination must be made as to whether

the allegedly inconsistent testimony would have been ad-

missible as substantive evidence if given at trial in the

first instance.

In the present case, the trial court declined to assess

Gallentine’s grand jury testimony in those terms, but

appears to have followed the impeachment standard in

determining the admissibility of the testimony for sub-

stantive purposes. We have set out in the margin the

colloquy between the trial court and defense counsel, in

which it is clear that the trial court refused to apply the

other rules of evidence to the prior testimony, but rather,

treated the mere fact of apparent inconsistency as the

sole criteria for admissibility.’

* “The Court: I am familiar with the rule, and I know,

as I indicated before, that this is a change in this Dis-

trict. Are you aware of any case that says this district

still is not affected by the change in the rule, Mr. Brodsky

[Defense counsel]?

“Mr. Brodsky: No. This District is certainly affected

by the change in the rule. I don’t argue that at all, it is

plain English. But this is my argument, Judge: Here

we have a situation where a witness testifies before the

grand jury where there is no lawyer present on the other

side, there is no Judge to rule on the propriety of ques-

tions

“The Court: I am aware of your argument, and I

would say, as I said months before, that is what you can

tell the jury when you get to that point, if you get to that

point.

“Under the situation, I find there is substantive use,

and I will allow it, with an exception to each defendant.

“I think your argument should be made to the jury

rather than as a matter of law. It is not a matter of

law.” (Tr. 382-883).

12

By Subsection (A), Congress has created a new

function for Grand Jury testimony, and, we submit, the

quality of the testimony must be such as to meet the re-

quirements of the function. Unless this is so, subsection

(A) will be nothing less than an engine for the destruc-

tion of the rules of evidence. The prosecutor could regu-

larly ask his grand jury witnesses unfounded questions,

calling for conclusory answers, and then, if the witness

disappoints the prosecutor at trial, the grand jury testi-

mony would come in as substantive evidence.

Our review of the draftsman’s notes and legislative

history with respect to subsection (A) fails to disclose

any mention of the problem posed here, i.e., the admissi-

bility of prior inconsistent testimony which does not meet

evidentiary standards for reasons other than the fact that

it was given on a prior occasion and was not subject to

cross-examination. Similarly, in the Second Circuit, where

previously inconsistent grand jury testimony had been

admissible for many years prior to the enactment of sub-

section (A), none of the cases decided under that line of

authority refer to the problem or involved prior testimony

that was incompetent for reasons other than hearsay.“

8 United States v. DeSisto, 329 F.2d 929 (2d Cir., 1964);

Taylor v. Baltimore & Ohio Railroad Co., 344 F.2d 281, 283-5

(2d Cir., 1965); United States v. Nuccio, 373 F.2d 168 (2d Cir.,

1967); United States v. Carella, 411 F.2d 729, 732 (2d Cir.,

1969) ; United States v. Insana, 423 F.2d 1165, 1169-70 (2d Cir.,

1970); United States v. Classen, 424 F.2d 494, 495 (6th Cir.,

1970); United States v. Mingoia, 424 F.2d 710, 713 (2d Cir.

1970); United States v. Fiore, 443 F.2d 112 (2d Cir., 1971);

United States v. Small, 443 F.2d 497, 498-500 (3d Cir., 1971);

United States v. Cunningham, 446 F.2d 194, 198 (2d Cir., 1971);

United States v. Panzavecchia, 446 F.2d 1293, 1297 (5th Cir.,

1971); United States v. Briggs, 456 F.2d 908, 909-911 (2d Cir.,

1972); United States v. Ruth, 461 F.2d 1213 (D.C. Cir., 1972);

United States v. Gregory, 472 F.2d 484, 487-9 (5th Cir. 1973);

United States v. Klein, 488 F.2d 481 (2d Cir., 1973); United

States v. Allsup, 485 F.2d 287 (8th Cir., 1973); United States v.

[Footnote continued on following page]

13

Wigmore touches upon the problem within the con-

text of the discussion of a prior expression of opinion as

being an inconsistent statement for the purpose of im-

peachment :

“The usual case of this kind is that of a general

statement upon the merits of the controversy,

which is now offered against a witness who has

testified to a specific matter. Thus, A testifies for

the prosecution that he saw the defendant near

the scene of the alleged arson; it is offered to show

that he has elsewhere declared that he is sure that

the defendant is innocent; is this admissible?

“The usual answer of some courts is that the dec-

laration should be excluded because it is mere

opinion (§ 1918, infra). This is unsound (1) be-

cause the declaration is not offered as testimony

(§ 1018, supra) and therefore the opinion rule has

no application. (IIIA Wigmore on Evi-

dence, § 1041, at p. 1052 [Chadbourne Revision] ).°

B. The Prior Testimony Herein Did Not Satisfy Basic

Evidentiary Standards Applicable to Federal Crim-

inal Trials.

An analysis of the Grand Jury transcript which was

received in evidence, and upon which the jury was in-

structed they could convict the petitioner, leaves no doubt

that neither the questions that were put to Gallentine, nor

Pfingst, 477 F.2d 177, 197-198 (2d Cir, 1973); Northwestern

Mutual Life Insurance Co. v. Linard, 498 F.2d 559, 560 (2d Cir.,

1974); United States v. Skelley, 501 F.2d 447, 454-5 (7th Cir.,

1974); United States v. Robinson, 503 F.2d 208, 217 (7th Cir.,

1974); United States v. Tavares, 512 F.2d 872 (9th Cir., 1975);

United States v. Rivera, 513 F.2d 519, 525-528 (2d Cir., 1975);

United States v. Jordano, 521 F.2d 695 (2d Cir., 1975); United

States v. Wolfish, 525 F.2d 47, 461-2 (2d Cir., 1975); United

States v. Gerry, 515 F.2d 180 (2d Cir., 1975).

* See also: United States v. Barrett, 589 F.2d 244, 254 (Ist

Cir. 1976).

14

his answers, would have been admissible if the examina-

tion had occurred at trial in the first instance. The six

questions and answers are set forth supra, at pp. 7-8.

We shall here examine them seriatim.

[1] . Now, apart from Mr. Rind, did you have

any conversation with either of the principals of

the company with regard to the use of customers’

Leasepac stock for the benefit of the firm?

“A. No, no. Mr. Rind just handled—Mr. Rind

set up the transactions, be they sales or loans and

he followed through. Mr. Berkson and Mr. Hyman

were aware, yes, but my contact was with Mr.

Rind.”

The permissible answer to the first question should

have been “yes” or “no”. If the answer were yes, the

witness could have been permitted to go on to give the

details of the conversation. Since the answer was no“

it was clearly improper to permit the witness to venture

the opinion that petitioner was “aware”.

[2] “Q. Well you say that Mr. Hyman and Mr.

Berkson were aware. Could you tell us how you

know Mr. Hyman and Mr. Berkson were aware of

what was going on?

“A. Well, I had conversation with them as to

how we got through the day cash wise, what we

had to do in order to get up the amount of cash

necessary.”

The second question repeats the improper conclusion

that the petitioner was “aware”, and then, without se-

parating the questions as to Hyman and petitioner, asks

how they were aware of what was going on. The answer

to the question was improper because, without being

specific as to whether the witness was talking about

petitioner or Hyman, he was permitted to give testimony

as to a conversation, in summary form, without being

15

required to specify the content of the conversation, and

without specifying the time, place or participants.

[3] „. In other words, from time to time you

would tell them that Mr. Rind arranged for the

transactions in stock to generate some cash and

you provided customers’ securities to cover that

transaction and that is how you got the cash on a

particular given day?

“A. Yes, yes.”

The third question simply picks up on the prior ques-

tion, and has the witness reaffirm the answer, again

referring to “them”, without testifying as to what was

said to petitioner and what was said to Hyman, or

whether he was talking to them alone or separately. The

answer is merely an affirmation of testimony which has

been given by the prosecutor, himself. It is difficult to

imagire circumstances under which an attorney would be

permitted to similarly lead his own witness at trial.

[4] . And you would explain to them that you

actually went through the process of the unau-

thorized use of customer securities for this pur-

pose?

“A. Yes, yes. I didn’t state specifically what

accounts or which customers were used but gen-

erally, just generally speaking, we were using

customers’ securities.”

The fourth question is improper because it uses the

conclusory word “unauthorized”, and also because it refers

to “them” without stating what the witness said to peti-

tioner or what the witness said to Hyman.

[5] „. And both Mr. Berkson and Mr. Hyman

knew about that?

“A Yes.”

16

The fifth question is improper because it uses the

conclusory word “knew”, without requiring the witness

to make clear as to whether his assent to the question

was based upon his personal knowledge, rather than some

assumption on his part that petitioner “knew”.

[6] “Q. And the reason you can say that is that

you specifically recall telling them about what

was going on?

“A. Yes, I spoke to them about it.”

The sixth question is improper because it refers to

“them”, without referring to what was said to petitioner

and what was said to Hyman, and permits the witness

to answer, “I spoke to them about it”, without requiring

him to state what he said to either man, specifically or

when the information was conveyed.

Aside from the obviously objectionable character of

the above noted questions and answers, there is a subtle,

and thus more devastatingly improper impact which the

testimony has when taken as a whole. While some of

the questions appear to be attempting to narrow the field

created by the prior question or answer, the successive

questions and answers have a cumulative, “snowball”

effect, picking up pockets of opinion, error, confusion and

equivocation, and passing them through to the subsequent

testimony.

The witness’s answers were conclusory. They con-

stituted equivocal findings of fact, and" i infringed upon

the fact finding function of the jury. The jury, there-

fore, had to base its findings not upon the raw data of

what occurred, but rather, upon speculations as to

whether Gallentine’s conclusions were accurate.

None of the questions was calculated toward isolating

information imparted by the witness to the petitioner.

None of the questions or answers shows that petitioner

was ever told that customers’ names were being forged to

17

securities, nor do they show whether any information was

conveyed to petitioner contemporaneously with the occur-

rence of the improper conduct or after the fact. The testi-

mony, taken as a whole, does not amount to anything more

than an expression of belief that the petitioner was aware

of some of the activities that underlie the charges of the

indictment. Since no particularized statement of the basis

for that belief was elicited from or given by the witness,

the testimony was incompetent. Shepard v. United States,

290 U.S. 96, 104-106 (1933). See also: United States v.

Murray, 297 F.2d 812, 816 (2nd Cir., 1962).

Similarly, if such testimony had been given at the

trial in the first instance, it would squarely have conflicted

with other provisions of the Federal Rules of Evidence.

Rule 602 requires that before a witness may testify to a

matter, his personal knowledge of the matter must first

be established. Rule 701 provides that a witness, other

than an expert, may only give testimony in the form of

an opinion or inference where a proper foundation is laid

and where such testimony will clarify the issue. Neither

of those conjunctive requirements existed here.“

Rule 611(c) provides that leading questions should

not be used on the direct examination of a witness except

as may be necessary to develop his testimony. Cf. Den-

roache, Leading Questions, 6 Crim. L. Q. 21, 22 (1963) ; 3

Weinstein’s Evidence, 611[05] at pp. 611(54-55).

In Bronston v. United States, 409 U.S. 352 (1973),

this Court assessed the scope of liability under the Federal

perjury statute, and noted:

„ * But we are not dealing with casual conver-

sation and the statute does not make it a criminal

1 It should be noted that the trial court acknowledged that

Gallentine’s grand jury testimony involved a characterization of

petitioner’s “mental operations” (Tr. 99), and was merely “.

evidence of [Gallentine’s] opinion of what [petitioner] knew.”

(Tr. 100).

18

act for a witness to willfully state any material

matter that implies any material matter that he

does not believe to be true.” (409 U.S. at 357-8)

[Emphasis as in original].

Although Bronston was not concerned with the issue

presented by this petition, the discussion in Bron-

ston provides an excellent rationale for the proposition

that prior allegedly inconsistent Grand Jury testimony

must first meet the condition of being fairly precise and

must have a proper foundation before it can be used as

substantive evidence in a subsequent trial upon which a

defendant’s guilt beyond a reasonable doubt will be predi-

cated. Grand Jury testimony need not meet the latter

qualification in order to justify a valid indictment.

However, if it is to serve its recently enlarged function,

it must do so.

As this Court said in California v. Green, supra, the

basis for the use of such testimony as substantive evi-

dence is. . the State’s ‘need’ to introduce relevant evi-

dence that through no fault of its own cannot be intro-

duced in any other way.” (399 U.S. at 167, fn. 16).

The “fault” for sloppy questioning before the Grand

Jury, whether intentional or not, must rest with the

prosecution. If Federal prosecutors are content to take

advantage of the rather liberal standards upon which

Federal indictments can be secured, then they must do so

with the knowledge that the testimony may not later

qualify as substantive trial evidence.

It must finally be noted that the text of subsection

(A), itself, requires that the prior testimony be “given

under oath subject to the penalty of perjury”. If the

testimony does not meet the Bronston standards, then it

is not subject to the penalty of perjury, and it does not

qualify for admission under subsection (A). Here, Gal-

lentine’s testimony was so imprecise that, we submit, he

could not have been prosecuted for perjury based upon

19

the implications which the government sought to draw

from that testimony in using it at trial, ie, that Gal-

lentine participated in or witnessed the communication

to petitioner of the fact that customers’ names were being

forged to stock powers.“

C. Even If Admissible As Trial Evidence, the Prior

Testimony Herein Should Not Have Been Permit-

ted to Serve as the Sole Evidentiary Basis for the

Petitioner’s Conviction.

Assuming, arguendo, that Gallentine’s testimony was

admissible for whatever evidentiary worth it might have,

we respectfully submit that, standing alone, it was in-

adequate to sustain a conviction in a Federal Court.

There reaches a point where prior testimony, offered for

the truth of its contents, is so equivocal and so lacking

in evidentiary worth, as to deprive a defendant of any

meaningful opportunity to confront the witness. In a

situation where the testimony is clear-cut and unequivo-

cal, the witness can, at least, be called upon to give an

explanation for his change in testimony, and then the

credibility of his explanation may be left for the jury to

decide. However, where the prosecutor seeks to argue

merely from inferences which he seeks the jury to draw

from the prior testimony, the testimony then becomes

twice removed from the trial itself.

In its charge, the trial court instructed the jury that

the prior inconsistent testimony was “sufficient to convict

the defendant even though it is not corroborated by any

other evidence.” (Tr. 567).

The prosecutor put his finger on the problem in sum-

mation by stating the issue as follows:

1 At trial, Gallentine testified that he did not have a discus-

sion with Berkson about the matter until after the firm had

stopped doing business, which was long after the underlying

events (Tr. 146-150, 162).

20

“Did Robert Berkson know about it, did Maurice

Rind know about it, and did they take part in

what was going on” (Tr. 420).

In his rebuttal, the prosecutor analyzed the quality

of the truth finding process by which the jury had re-

solved that issue:

Wie are all hearsaying to you, ‘Mr. Gal-

lentine said this, this, and this, and if it happens

to help, the result will be we rely on it, and if it

doesen’t, he must not be telling the truth,’ and I

suppose to some extent we have all done that

“Well, whatever Mr. Gallentine was saying,

you will have to decide. * * *” (Tr. 541).

In California v. Green, supra, this Court noted that

“ .. considerations of due process, wholly apart from the

confrontation clause, might prevent convictions where a

reliable evidentiary basis is totally lacking. .” (399

U.S. 164, fn. 15). Indeed, in Green, while sustaining

the admissibility of the prior inconsistent testimony, this

Court remanded the case for reconsideration as to

whether the testimony provided a sufficient basis for the

conviction (399 U.S. at 170, fn. 19, and accompanying

text).

That precise thought was expressed in the report of

the Senate Committee on the Judiciary with respect to

subsection (A):

“It would appear that some of the opposition to

this rule is based on a concern that a person could

be convicted solely upon evidence admissible under

this Rule. The Rule, however, is not addressed

to the question of the sufficiency of evidence to send

a case to the jury, but merely as to its admissi-

bility. Factual circumstances could well arise

where, if this were the sole evidence, dismissal

would be appropriate.” U.S. Code Cong. & Ad.

News, 93rd Cong., 2d Sess., No. 12A, p. 41 (Janu-

ary 15, 1975).

21

CONCLUSION

For all of the above reasons, the Petition for a Writ

of Certiorari ought be granted.

Respectfully submitted,

EDWARD BRODSKY

Spengler, Carlson, Gubar, Churchill

& Brodsky, Esds.

280 Park Avenue

New York, New York 10017

(212) 682-4444

HENRY J. BOITEL

233 Broadway

New York, New York 10007

(212) RE 2-8104

Attorneys for Petitioner

APPENDICES

— —

1a

APPENDIX A

Court of Appeals Order of Affirmance

(December 17, 1976)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court

of Appeals for the Second Circuit, held

at the United States Courthouse in the

City of New York, on the seventeenth

day of December, one thousand nine hun-

dred and seventy-six.

Present: HON. WILLIAM H. MULLIGAN

HON. WILLIAM H. TIMBERS

HON. ELLSWORTH A. VANGRAAFEILAND

Circuit Judges.

76-1348

76-1367

— (Ü—— <> —

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

—

ROBERT BERKSON, JAMES GALLENTINE, WILBUR HYMAN,

MAURICE RIND,

Defendants,

MAURICE RIND, ROBERT BERKSON,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of New York.

2a

Appendix A—Court of Appeals Order of Affirmance

(December 17, 1976)

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgments of said

District Court be and they hereby are affirmed.

A. DANIEL FUSARO

Clerk

by VINCENT A. CARLIN

Chief Deputy Clerk

3a

APPENDIX B

Denial of Petition for Rehearing (February 15, 1977)

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the

Second Circuit, held at the United

States Court House, in the City of

New York, on the fifteenth day of

February, one thousand nine hundred

and seventy-seven.

Present: HON. WILLIAM H. MULLIGAN

Hon. WILLIAM H. TIMBERS

HON. ELLSWORTH A. VAN GRAAFEILAND

Circuit Judges.

76-1348

76-1367

— Oo

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

— a

ROBERT BERKSON, JAMES GALLENTINE, WILBUR HYMAN,

MAURICE RIND,

Defendants,

MAURICE RIND, ROBERT BERKSON,

Defendants-A ppellants.

Oe

A petition for a rehearing having been filed herein

by counsel for the defendant-appellant, Robert Berkson,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

/s/ A. DANIEL FUSARO

A. DANIEL FUSARO

Clerk

by LLEssa BING, Deputy Clerk

4a

APPENDIX C

Denial of Suggestion for Rehearing En Banc

(February 15, 1977)

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the

Second Circuit, held at the United

States Court House, in the City of

New York, on the fifteenth day of

February, one thousand nine hundred

and seventy-seven.

76-1348

76-1367

—— = — —

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

—

ROBERT BERKSON, JAMES GALLENTINE, WILBUR HYMAN,

MAURICE RIND,

Defendants,

MAURICE RIND, ROBERT BERKSON,

Defendants-A ppellants.

— — - 2 i —— -

A petition for rehearing containing a suggestion that

the action be reheard in banc havng been filed herein by

counsel for the defendant-appellant Robert Berkson, and

no active judge or judge who was a member of the panel

having requested that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

DENIED.

/s/ IRVING R. KAUFMAN

IRVING R. KAUFMAN,

Chief Judge

5a

APPENDIX D

Constitutional Provisions and Rules

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

United States Constitution, Sixth Amendment

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been pre-

viously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assist-

ance of Counsel for his def nce.

Federal Rules of Evidence, Rule 602.

LACK OF PERSONAL KNOWLEDGE

A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that he has

personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the

testimony of the witness himself. This rule is subject to

the provisions of rule 703, relating to opinion testimony

by expert witnesses.

6a

Appendix “D”—Constitutional Provisions and Rules

Federal Rules of Evidence, Rule 611.

MODE AND ORDER OF INTERROGATION

AND PRESENTATION

(a) Control by court. The court shall exercise rea-

sonable control over the mode and order of interrogating

witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertain-

ment of the truth, (2) avoid needless consumption of time,

and (3) protect witnesses from harassment or undue

embarrassment.

(b) Scope of cross-examination. Cross-examination

should be limited to the subject matter of the direct ex-

amination and matters affecting the credibility of the

witness. The court may, in the exercise of discretion,

permit inquiry into additional matters as if on direct

examination.

(e) Leading questions. Leading questions should not

be used on the direct examination of a witness except as

may be necessary to develop his testimony. Ordinarily

leading questions should be permitted on cross-examina-

tion. When a party calls a hostile witness, an adverse

party, or a witness identified with an adverse party, in-

terrogation may be by leading questions.

Federal Rules of Evidence, Rule 701.

OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, his testi-

mony in the form of opinions or inferences is limited to

those opinions or inferences which are (a) rationally

based on the perception of the witness and. (b) helpful

to a clear understanding of his testimony or the deter-

mination of a fact in issue.