Opposition — Goldstein v. United States

wo

Nos. 76-1440, 76-6561 and FP 21 1977

MICHAE! Orns,

Yn the Supreme Gourt of the United Htates,

Octoper Term, 1977

ALEx GOLDSTEIN, PETITIONER

v.

Unirep States or AMERICA

LEONARD NIKOLORIC, PETITIONER

v.

Untrep States or AMERICA

Mixes DearpdeNn, IR., PETITIONER

v.

Unttep States or AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H McCREE, IR.

Solicitor General.

BENJAMIN R CIVILETTI,

Assistant Attorney General.

MICHAEL W. FARRELL,

JAMES A. HUNOLT,

Attorneys.

Department of Justice.

Washington, 5.6, 20530.

BC ee

r

1

E

EE

T

CITATIONS

Cases:

United States v. Bernstein, 533 F. 2d 775,

certiorari denied, 429 U.S. 998

United States v. Bronston, 321 F. Supp.

SS

United States v. Leon, 441 F. 2d 175.

United States v. Miley, 513 F. 2d 1191, cer-

tiorari denied sub nom. Goldstein v.

United States, 423 U.S. 842_.----------

United States v. Whiting, 308 F. 2d 537,

certiorari denied, 372 U.S. 919

Woodward v. Metro Bank of Dallas, 522

Statutes and regulation:

1 1 —

3 —

1 —

I —

.

3. ͤ —

Miscellaneous:

ALI, Restatement of the Law of Trusts

— —

I

245-799 77——1

:

@S-00 whe

—

11

11

* — eee

Ju the Supreme Court of the Wnited States

Octoser TERM, 1977

No. 76-1440

ALEX GOLDSTEIN, PETITIONER

*

Unrrep Srarus or AMERICA

No. 76-6561

LEONARD NIKOLORIC, PETITIONER

v.

UNITED STATES OF AMERICA

No. 76-6579

Mus DEARDEN, JR., PETITIONER

v.

Unrrep States or AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 546 F. 2d 622.

„Pet. App.” refers to the appendix in No. 76-6561.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on February 3, 1977. Petitions for rehearing and re-

hearing en bane were denied on March 17, 1977. The

petitions for writs of certiorari were filed on April

14, 1977 (No. 76-6561), April 16, 1977 (No. 76-1440),

and April 18, 1977 (No. 76-6579). No. 76-6579 is out

of time under Rule 22(2) of the Rules of this Court.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

1. Whether evidence of other fraudulent activities

by some of the conspirators in this case was relevant

to prove the conspiracy charged, and whether peti-

tioner Nikolorie was prejudiced by any error.

2. Whether petitioner Nikoloric’s status as trustee

of fraudulently obtained funds immunized him from

criminal prosecution for transactions involving the

transfer of those funds.

3. Whether the trial court abused its discretion in

denying petitioner Goldstein’s mid-trial motion to

depose foreign witnesses.

4. Whether the prosecutor improperly commented

on petitioner Goldstein’s failure to testify.

5. Whether petitioner Dearden was improperly

denied prior to trial copies of the voluminous docu-

mentary evidence he requested at the government’s

expense.

3

STATEMENT

After a jury trial in the United States District

Court for the Southern District of Florida, petitioners

were convicted of conspiracy to transport money ob-

tained by fraud, in violation of 18 U.S.C. 371. Peti-

tioners Nikoloric and Dearden were also convicted on

seven and twelve counts of mail fraud, wire fraud,

and interstate or foreign transportation of monies

or securities converted or taken by fraud, in viola-

tion of 18 U.S.C. 1341, 1343, 2314 and 2. Petitioner

Goldstein was sentenced to two years’ imprisonment.

Petitioners Nikoloric and Dearden were sentenced to

concurrent terms of five years’ imprisonment on the

conspiracy count and two years’ imprisonment on each

of the substantive offenses.“ The court of appeals

affirmed.

The evidence showed that petitioners and others

established a scheme to defraud investors in the First

Liberty Fund, an offshore mutual fund, through the

sale of worthless securities. Petitioner Dearden was

a managing partner of the fund. Petitioner Nikolorie,

who entered the scheme after its creation, assisted

in the operation and management of First Liberty,

and petitioner Goldstein was a partner in the sales

organization that sold First Liberty securities. (Jet.

App. 1329).

1. First Liberty Fund was formed in the Bahamas

in late 1968 by Phillip Wilson, Jack Axelrod, Sam

Miles Dearden, Sr., also was convicted on several counts. He did

not appeal (Pet. App. 1329 n. 1).

4

Wilkenson, and others (Tr. 71). Axelrod prepared

and Wilkenson (who was not a certified public ac-

countant) certified balance sheets reflecting that First

Liberty’s assets exceeded $26 million in January 1970

(G. Exh. 76) and $32 million in March 1970 (G. Exh.

80; Tr. 173). These figures were baseless. First Lib-

erty’s assets were all but valueless (Tr. 81, 172). In

April 1970 petitioner Dearden became president and

director of First Liberty (Tr. 93, 113).

To stimulate purchases of its shares, First Liberty

entered into an agreement with Transcontinental Cas-

ualty Insurance Company (‘*Transeon”) (Tr. 258

259) under which Transcon purportedly ‘“‘guaranteed”

all investments in First Liberty held for a period of

three years. Transcon, however, had insufficient assets

to underwrite these investments (Tr. 267).

In April 1970 Wilson learned that a European ac-

quaintance, Jerry Lasky, had a sales force in Baden-

Baden, West Germany, that was secking a mutual

fund to sell to its clients (Tr. 417). First Liberty and

Lasky subsequently agreed that Lasky’s sales organi-

zation, Northern U.S. Investors (“NUSI”), would

sell First Liberty shares in Europe for a commission

(Tr. 420-423). Petitioner Goldstein and co-conspira-

r.“ refers to the 11-volume transcript of the evidence at trial.

“Tr. Cl.” refers to the one-volume transcript of the closing argu-

ments of the prosecutor and petitioner Goldstein’s counsel. “G.

Exh.” refers to the government’s exhibits introduced at trial. “M.

Supp. R.” refers to the government’s motion to supplement the

record, contained in volume 18 of the record in this Court.

5 —

tors Jurgen and Volker Reible were partners in NUSI

(Tr. 434, 1113-1114, 2517).

Petitioner Nikoloric, an attorney, came in contact

with First Liberty in Germany while seeking financ-

ing for Cocein, a financially distressed Honduran

lumber company of which he was president. He en-

tered into an agreement in June 1970 by which First

Liberty sales proceeds would be used to finance Cocein

(Tr. 2403-2410). In August 1970 Nikoloric reached

an agreement with a partnership that included key

principals of First Liberty; under this agreement

Nikolorie was to receive a $40,000 annual retainer,

his expenses, and one-quarter of the venture’s profits

(Tr. 2130; G. Exh. 226C) |

2. In late July 1970 petitioners, the Reible brothers

and officers of First Liberty met in Baden-Baden and

discussed a plan for the sale of First Liberty shares

to investors in a troubled mutual fund, Investors

Overseas Service (“LOS”). The plan provided for a

sales program by which IOS investors would redeem

their 108 shares through a Zurich bank and purchase

First Liberty shares instead, with the proceeds to be

deposited in First Liberty’s account at a Geneva bank

(Tr. 500-501, 1121-1124, 1137).

After the July meeting, brokers were sent false

financial statements of First Liberty and other false

„It was agreed that NUSI would receive a 2214 percent sales

commission, in addition to Lasky’s personal 10 percent commission,

for all sales of First Liberty shares (G. Exhs. 222, 223; Tr. 423-

424). The customary commission on European sales of offshore

mutual funds was 814 percent, with the highest being no more than

10 percent (Tr. 450).

6

or misleading information, including (1) a statement

reflecting a nonexistent $1,697,000 profit by Cocein

(G. Exh. 149); (2) a balance sheet showing First

Liberty’s assets as exceeding $31 million (G. Exh.

85); (3) a statement describing First Liberty’s an-

nual growth rate as 72½ percent (G. Exh. 87); and

(4) a prospectus published by First Liberty showing

a $290 million net worth for Transcon, the insurance

guarantor,” and $27 million in First Liberty assets

(G. Exhs. 92, 231G). Investors relying upon this

information purchased more than $1.8 million worth

of First Liberty shares in the period through mid-

December 1970 (Tr. 600-601, 1110-1111, 1138-1140,

1177-1183, 1318-1319, 1324-1327, 1329-1333, 1409-

1414, 1448-1450, 1473).

In September 1970, after the Geneva bank holding

the sales proceeds of First Liberty shares had closed

the company’s account, petitioners, the Reible broth-

ers, and others discussed means (including issuance of

a revamped financial statement) of persuading another

bank to accept the some $600,000 in proceeds that had

accumulated. At the same time Goldstein and the

Reibles demanded a 40 percent commission for NUSI

on future sales; petitioner Nikolorie and Richard

Brandom, a First Liberty principal, acceded to the

request (Tr. 575-578, 638-640, 1073-1074, 2554).

When a Zurich bank accepted the First Liberty ac-

count, NUSI commissions amounting to $170,000 of

Pet it ioner Nikoloric knew that Transcon had been unable to

post a $100,000 guarantee in the London financial market (Tr. 458

459). |

7

the initial $673,000 deposit were transferred to a num-

bered account, and petitioners implemented a plan to

conceal the amount of future NUSI commissions from

the bank (Tr. 617-623).°

Despite subsequent changes in the control of First

Liberty, petitioner Nikolorie and NUSI continued to

receive disbursements from the company as before

(Tr. 681-684, 2221-2226, 2557-2558). Of more than

$1.8 million in sales proceeds of First Liberty shares,

NUSI (in which petitioner Goldstein was a partner)

received nearly $700,000, petitioner Nikoloric received

nearly $40,000, and Cocein (of which Nikolorie was a

principal shareholder) received $220,000 (Tr. 2212,

2495-2496). With one minor exception, investors in

First Liberty lost their money (Tr. 1198-1200, 1405-

1406, 1416, 1457, 1469, 1474).

1. Petitioner Nikoloric contends (Pet. 10-22) that

the proof at trial showed the existence of multiple

conspiracies rather than the single one alleged in the

indictment. Petitioner’s argument was accurately char-

acterized by the court of appeals (Pet. App. 1331-

1332) as an objection to the evidence introduced at

trial rather than as a contention that the proof showed

multiple conspiracies.

Most of the evidence to which petitioner objects was

relevant to the question whether petitioner Nikoloric

As part of that plan, a substantial portion of the proceeds was

routed to accounts in the name of petitioner Nikoloric in Washing-

ton, D.C., banks, from which they were forwarded to the numbered

Swiss account (Tr. 620-623).

245-799—17—2

took part in a conspiracy to defraud customers of

First Liberty. The evidence showed either the fraudu-

lent nature of that company or Nikolorie’s knowl-

edge of the fraud by the co-conspirators. Evidence

was introduced, for example, to show fraudulent ma-

nipulation of the Bank of Sark by Axelrod and Phil.

lip Wilson. The Bank of Sark, however, was listed on

some of First Liberty’s financial statements as the

holder of $900,000 of its funds (G. Exh. 84, 92; Tr.

1943-1944). Evidence of the fact that the Bank of

Sark was itself a fraud thus helped to demonstrate

the nature of the deception engaged in by First Lib-

erty.’ Moreover, petitioner Nikoloric had been made

aware in July 1970 of the unreliability of the persons

operating the Bank of Sark (Tr. 455-458), and evi-

dence of its practices was thus relevant to Nikoloric’s

knowledge of the fraud practiced by First Liberty.“

At the time the Bank of Sark was represented to hold $900,000

in First Liberty assets, it had actual deposits totaling about

$15,000 (Tr. 90). In similar fashion, holdings in Tangible Risk,

Compreal Holding, Bethany Lodge, London and Wales, and Com-

utrix were listed as assets on First Liberty’s balance sheets

distributed in Europe, but they were either worthless or grossly

overvalued in the statements (Tr. 86, 209, 247 1580-1614; G. Exhs.

89, 92, 98).

* In like manner, petitioner Nikoloric had been informed of the

purchase of securities from anuther bank by petitioner Dearden at

a greatly inflated price, in return for a bank account in which to

deposit First Liberty sales proceeds (Tr. 670-674). Since these

securities were then listed as a First Liberty asset (Tr. 673-674:

G. Exh. 98), evidence of this transaction tended to show Nikoloric’s

knowledge of First Liberty’s practice of inflating its assets.

Dearden’s action in purchasing the stock did not show the existence

of a separate conspiracy ; it was an act of a co-conspirator in fur-

— _—-

— ;

The rest of the evidence that petitioner contends

related to separate conspiracies involving institutions

other than First Liberty (albeit involving some of the

same conspirators) was elicited during defendants’

cross-examination of government witnesses.” Peti-

tioner Nikoloric evidently did not believe during trial

that this evidence was prejudicial to him, since he did

not object to its admission.” In any event, assuming

that some of this evidence was inadmissible with re-

gard to petitioner, we submit that he suffered no pre-

judice from it. Petitioner Nikolorie was no periphere!

figure in the scheme to defraud investors in First Li-

berty ; this was accordingly not a case“ ‘where a minor

participant in one conspiracy was forced to sit

through weeks of damaging evidence’ relating to

others. United States v. Bernstein, 533 F. 2d 775,

7:3 (C.. 2), certiorari denied, 429 U.S. 998; United

States v. Miley, 513 F. 2d 1191, 1209 (C. A. 2), cer-

tiorari denied sub nom. Goldstein v. United States,

therance of the conspiracy alleged. There was also evidence of

other attempted or successful acquisitions of properties by

Dearden, which were then listed as First Liberty assets, some at

grossly inflated value (e.g., Compreal Holding, Bethany Lodge)

(Tr. 119-123, 1561-1614, 1852-1870; G. Exh. 3). These transactions

too were admissible as acts of a co-conspirator in furtherance of the

conspiracy.

. g., Frank Blosser was cross-examined about his connection

with fraudulent schemes involving English and Israeli companies

(Tr. 320-322), and Axelrod was questioned about his involvement

in fraudulent activities for which he had pleaded guilty to

criminal charges (Tr. 165-167, 189-190).

% Of the some 70 instances cited by petitioner as allusions to

separate conspiracies, the record shows that he objected to only two

(Tr. 89, 2019).

10

423 U.S. 842. Moreover, the trial judge thoroughly

instructed the jury both during and after the recep-

tion of evidence that it was to treat each defendant

separately and to consider only the acts of the individ-

ual defendant in determining whether he was a mem-

ber of the conspiracy charged (e.g., Tr. 68-69, 419

420, 3469-3470, 3492-3493). In these circumstances

petitioner may not belatedly contend that he was

prejudiced by evidence of “multiple conspiracies.”

2. Petitioner Nikoloric’s substantive convictions for

wire fraud were based upon transfers of funds to and

from two bank accounts in his name in Washing-

ton, D.C., banks. More than $900,000 in First Liberty

sales proceeds had been deposited in these accounts.

More than $240,000 was transferred from the ac-

counts to the account of M. C. Dearden Associates in

Florida, and more than $250,000 was transferred to a

numbered Swiss bank account. Petitioner Nikoloric

personally received $38,500 from the aeeounts (Tr.

2216-2220).

Petitioner Nikolorie contends (Pet. 36-40) that

he was a trustee“ of First Liberty’s funds, that he

transported the sales proceeds in that capacity ae-

cording to the instructions of the settlors, and that he

was therefore not criminally liable for his acts." At

bottom petitioner’s claim is that, although he knew

First Liberty had obtained the funds in question by

One of petitioner Nikoloric’s accounts named him as a trustee,

and he identified the accounts at trial as trust accounts (Tr. 2461).

According to petitioner, disbursements from the accounts wer-

— upon instructions from the Reibles and petitioner Dearden

(Id.).

11

fraud, he owed a higher duty to the settlors than he

did to the criminal law. But a trustee has no duty to

violate the law. ALI, Restatement of the Law of

Trusts § 166, pp. 410-415 (1935); Seott, Trusts 271

(1967).

3. Petitioner Goldstein contends (Pet. 8-14) that

the district court erred in denying his mid-trial motion

to depose Jurgen and Volker Reible, who were named

in the indictment as defendants. The Reibles were

fugitives in West Germany at the time of trial.

Petitioner filed a motion in January 1975 to take

the depositions of 29 potential witnesses (R. 185,

195). The motion was denied for failure to make the

required showing of need (R. 281-282). By February

1975 the prosecutor’s exhibit file had been opened to

petitioner’s counsel for inspection and copying (R.

190-191, 209, 284-285, 426). In April 1975 petitioner

Goldstein filed a supplemental motion to depose (R.

294). The court allowed depositions of 25 potentiai

22 Pet it ioner s reliance ( Pet. 38-39) on Woodard v. Metro Bank

of Dallas, 522 F. 2d 84 (C.A. 5), is unwarranted. In Woodward the

court considered the issue whether the defendant bank and its

employee could be secondarily liable to an accommodation endorser

under the securities fraud prohibitions of 17 C. F. R. 240. 10b-; the

court found insufficient evidence of fraudulent knowledge to permit

liability (522 F. 2d at 97-100). Petitioner seeks to analogize the

facts of this case to these of Wood ard. But petitioner conceded

that he knew by October 1970 that First Liberty was a fraud (Tr.

2463). All but one of the transactions charged in the substantive

counts on which he was convicted occurred after that date, and the

conspiracy charge encompassed that period. Although the evidence

was sufficient to show petitioner's guilty knowledge well before

that date (see pages 3-7, supra), petitioner's own admission of

knowledge further distinguishes this case from Woodward.

12

witnesses, primarily in West Germany, although the

court noted that petitioner had shown the necessity of

deposing less than half that number (R. 378-379).

Although he had not moved to depose them, peti-

tioner’s counsel interviewed the Reibles about the case

while in West Germany (R. 418-419).”

Trial began on June 25, 1975. Petitioner Goldstein

moved two weeks later to recess the trial and to depose

Jurgen and Volker Reible (R. 552). Attached to this

motion was a statement of Volker Reible that the

brothers would be willing to testify by deposition

in the Bahamas if assurances of free passage in the

United States could not be given (R. 554355). The

court denied the motion, concluding that it was un-

timely (R. 426-427; Tr. 1814-1817).

The court of appeals correctly held that the denial

of the mid-trial motion was not an abuse of discre-

tion. Petitioner Goldstein had been afforded broad

discovery and full opportunity to seek depositions

of the Reibles prior to trial. In denying the motion

the district court observed (R. 427):

Every possible consideration and advantage

for gathering evidence and preparing for trial

has heretofore becu sccorded Goldstein and

his counsel by both counsel for the govern-

ment and the Court.

Moreover, petitioner’s counsel interviewed the Reibles

when in West Germany. Petitioner and the Reibles

were co-defendants and significant figures in the

= According to petitioner's counsel, the prosecutor declined his

suggestion to depose the Reibles, and the Reibles refused to give

sworn or written statements (R.418).

— ee ee

13

scheme alleged in the indictment. The significance of

their testimony, if any, to petitioner Goldstein should

have been apparent well in advance of trial. Peti-

tioner’s failure to move to depose the Reibles until

the third week of trial amply justified the court’s de-

nial of the motion for undue delay. United States v.

Whiting, 308 F. 2d 537, 541-542 (C.A. 2), certiorari

denied, 372 U.S. 919; see United States v. Leon, 441

F. 2d 175, 178 (C.A. 5).

Petitioner maintains (Pet. 13) that the delay was

excusable because he did not know the theory of the

government’s case until after its case-in-chief. The dis-

trict court, however, observed (Tr. 1815):

[N]o one with any intimate knowledge of this

ease could possibly avoid knowing the situation

that we have today insofar as the state of the

evidence that would exist.

Petitioner’s claim that the delay was excusable is thus

groundless.”

4. Petitioner Goldstein contends (Pet. 14-16) that

the prosecutor improperly commented on his failure

to testify at trial.

During closing argument the prosecutor stated:

Did Goldstein say, “Hey, stop, no more

sales!“ Did he say “Let’s freeze the money, all

Petitioner relies on United States v. Bronston, 321 F. Supp.

1269 (S. D. N.Y.). In Bronston the court granted a motion to de-

pose foreign witnesses submitted more than three weeks prior to

trial, although the court noted that the motion was dilatory (521

F. Supp. at 1273). But there is a world of difference between pre-

trial motions and mid-trial motions; Bronston does not indicate

that no motion to depose may be denied as untimely.

14

money coming in and hold it for the benefit of

the First Liberty Fund shareholders?” No, he

did not do that. [Tr. Cl. 22.]

Now, what did Mr. Goldstein and the others

do. Well, they didn’t tell Riegler. [Tr. Cl. 69.]

Mr. Goldstein met with Mr. Mattauch before

the Frankfort meeting. He never told Mr. Mat-

tauch about First Liberty being a fraud. [Tr.

Cl. 69.]

They never told anyone [that First Liberty

was a fraud], ladies and gentlemen. [Tr. Cl.

60.

Those comments have nothing whatever to do with

petitioner Goldstein's failure to testify. On the con-

trary, they relate only to evidence of his conduct dur-

ing the course of the fraudulent scheme, and they

were therefore proper. They relate to Goldstein’s

dealings with investors, not to his defense at trial.

The prosecutor further commented (Tr. Cl. 67):

Mr. Goldstein is trying to say that he is so

naive * * *.” The statement was a proper response to

the evidence presented by petitioner Goldstein in an

effort to show that he was unaware of the fraudulent

nature of First Liberty (Tr. 3119-3120, 3210-3211).

The comment did not allude to petitioner’s failure

to testify.

Finally, the prosecutor observed (Tr. Cl. 128):

There is no evidence in this case, one way or

the other, as to who had the power to sign the

checks on this NUSI account at the Swiss bank

— —— — — Un

15

corporation, and there is no evidence in this

case one way or the other as to what happened

to the money that was in that account.

During closing argument, petitioner Goldstein’s coun-

sel had argued that the Reible brothers had exclusive

control of the numbered Swiss bank account to which

certain First Liberty sales proceeds were transferred

(Tr. Cl. 103).“ The prosecutor’s remark was a direct

and proper response to that argument. Moreover, as

the court of appeals observed (Pet. App. 1331), the

remark was in the nature of a comment on the failure

of the defense; it did not ask the jury to draw any

inference from petitioner’s failure to testify.

5. Petitioner Dearden contends (Pet. 5-8) that

he was entitled to receive prior to trial copies of the

government’s proposed documentary evidence at gov-

ernment expense.

Petitioner’s counsel, Theodore Klein, was appointed

more than seven months prior to the June 1975 trial.

By mid-December 1974, Klein had received volumi-

nous Jencks material and was advised that the docu-

mentary evidence was available for inspection (KR.

181-182, 278-280, 488). On February 6, 1975, peti-

tioner sought reimbursement of almost #500 as ex-

penses incurred in copying some 4500 pages of the

material (R. 234-235, 458). That application was

granted (R. 380).

15 Petitioner Nikoloric had testified that the Reibles told him that

the Swiss account was theirs (Tr. 2487).

Throughout the pretrial period the prosecutor continuously

provided updated Jencks material, proposed lists of exhibits, and

tentative lists of documents to be offered by each witness (R. 209,

234-235, 249-250, 255-276, 284-289, 496, 582-600).

16

Petitioner also requested advance payment of the

cost of copying the documentary evidence; Klein

stated that it was needed for trial preparation (R.

234-240). Arrangements had heen made for co-defend-

ants to obtain copies of the material, and the esti-

mated cost of copying the approximately 15,000 pages

was between $1,000 and $1,500 (R. 235). A hearing was

held the following day; Klein stated that he needed

copies of the material regardless of its availability

from other sources (R. 460-461). The district court

stated that it had contacted the attorney for peti-

tioner's father, co-defendant Miles Dearden, Sr., who

had agreed to lend his copies of documents in blocks

to Klein so that he could use it in his own office

(R. 464). The court observed that funds for the kind

of expenditure sought by petitioner were very limited

(R. 462-464, 469). Approximately ten days later the

prosecutor informed Klein by letter that he would

make all reasonable efforts to allow him to study the

materials. The prosecutor stated that Klein could

come to his office as often and as long as necessary for

that purpose, and that a private area would be pro-

vided in which Klein could go over the materials with

his client (M. Supp. R. Exh. A).

In April 1975 the court, responding to Klein’s sub-

sequent motion to have the material copied, requested

reasons why the arrangement to obtain copies of the

materials from co-defendant’s counsel was unsatisfae-

tory. The court also stated (M. Supp. R. Exh. B):

If adequate representation of your elient de-

mands that you receive copies of all this ma-

17

terial, will you please advise by whom the

copies will be made, the mode of copying * * *;

and if this additional expense must be incurred,

please made every reasonable effort to obtain

it as economically as possible.

The court asked for a more definite statement of cost

and concluded by offering to enter an appropriate

order upon further report for counsel (ibid.). A few

days later the prosecutor noted in a letter to Klein

that they were to meet to review the materials and

determine what Klein wanted copied (M. Supp. R.

Exh. C). Klein took no further action, either with re-

gard to the district court’s request and offer to au-

thorize the expenses or with regard to the prosecutor’s

offer to provide assistance when more specifically ad-

vised of the particular documents Klein sought to

copy.

Under these circumstances, petitioner was not pe-

nalized by his inability to afford copying costs. Al-

though the documentary evidence was voluminous,

petitioner’s counsel was afforded access to it both in

his own office and at the United States Attorney’s

office with provision for private consultation there

with his client. Moreover, petitioner did nothing after

the court offered to authorize the requested expendi-

ture. Finally, petitioner’s counsel effectively utilized

the documentary evidence at trial (/.g., Tr. 827-829,

1206-1208, 1615, 1879, 1883, 2039, 2473, 2475-2479).

Accordingly, petitioner’s claim that he was denied

materials necessary for trial preparation is insubstan-

tial.

18

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wape H. McCresr, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

Michal. W. Fm,

JAurs A. HUNOLT,

Attorneys.

SEPTEMBER 1977.

US GOVERNMENT PRINTING OFFICE. 1077