# Petition — Rodriguez v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 819

## Text

Sup. me Court, US.
FILED
APR 25 1977

n rr,

~

IN THE

Supreme Court of the United States

OcToBeR TERM, 1976

7671480

BENJAMIN RopRIQUEZ,
Petitioner,

No.

V.

Unrrep STATEs OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

ALBERT J. KRIEGER
2000° South Dixie Highway
Miami, Florida 33133
JOSEPH BEELER
2000 South Dixie Highway
Miami, Florida 33133

Attorneys for Petitioner

Pures or Bryson S. Avpams Parnrinc, Inc., Wasnineton, D. C.

Page
NE BND sees 1
eee see dees 2
... 0 6000s sacccseccccccescceccces 2
Coxsrrrurioxal. AND Statutory Provisions Invotvep.. 4
POSED GP GHB GOED . eee 5
Reasons ror Grantine THE Wr 9

I. Certiorari Should Be Granted To Resolve the
Conflict Among the District of Columbia, Third
and Seventh Circuits on the One Hand and the
First, Second, Fifth and Eighth Cireuits on the
Other Hand, Concerning Whether the Supple-
mental Charge Approved by This Court in Allen
v. United States Should Be Banned and A. B. X.
a by Jury Standard 5.4 Substituted in Its

WWW 9

II. The Decision Below Countenancing the Judge’s
Instruction to the Jury in the Absence of Peti-
tioner and His Counsel Conflicts with Applicable
Decisions of This Court on Important Recurring
Questions of Federal Law Concerning the
Proper Judicial Response to Questions from the
Jury During Deliberations ................... 16

III. The Decision Below Conflicts in Principle with
Decisions of This Court Forbidding the Prose-
eution from Commenting U a Criminal De-
— 's Decision Not To Testify in His Own
ese 19

IV. The Prosecution’s Deliberate Elicitation of the
Fact That an Attorney for Petitioner Had In-
voked Petitioner’s Attorney-Client Privilege
Before an Investigating Grand Jury Constitutes

ii Index Continued

Page
Error in Legal Conflict with the Third Circuit
and in Derogation of This Court’s Decisions
Concerning the Fifth Amendment Privilege
Against Self-Incrimination .................. 21

V. This Court Should Resolve the Important and
Continuing Conflict Between the Second Circuit
and the Other Cireuits Which Allowed the Prose-
cution To Elicit Evidence of Supposed Criminal
Associations Having No Probative Value but
Packing Great Prejudicial Effect and the Court
Below To Affirm Without Discussion .......... 22

VI. The Decision Below Allowing the Trial Court
To Amend the Language of the Indictment Used
To Charge an Element of the Crime on the
Theory that the Details Are Surplusage Con-
flicts Directly with This Court’s Decision in
Stirone v. United States

penecncesoccesdeeseces 25
77CGͤõ!x . chads. 29
APPENDIX

Opinion of the Court of Appeals ............... la
Supplemental Charge to the Jury .............. 7a
American Bar Association Projection Standards
for Criminal Justice, Standards Relating to Trial
by July § 5.4 (Approved Draft 1968) l4a

Citations Continued iii
CITATIONS
Page
— 2. 9, 10, 11
2 1 1896 eeee * ’ ’
Allen v. United States, 164 U.S. 492 (1896) 12, 14, 15, 16

, ; 20
Barnes v. United States, 8 F.2d 832 (8th Cir. 1925) ..
Bradley v. United States, 140 U.S. App. D.C. 7, 433 F.2d =
1113 (1969) 2.2... ..ccceee cece „ —
in v. United States, 351 F. 2d 618 (5th Cir. 1965) .. 20
— tk I. Ry. v. Sellars, 5 F.2d 31 (8th Cir. 1925) 15
Desmond v. United States, 345 F.2d 225 (Ist Cir. 1965) 20
DeVore v. United States, 368 F.2d 396 (9th Cir. 1966) 24

Doyle v. Ohio, 96 S.Ct. 2240 (1976) ..... :: 22
Estelle v. Williams, 425 U.S. —, 19 Cr.L. 3061, May 3, *
D ²˙‚Ã nah echevenesoesseoeese 2

illippon v. Albion Vein Slate Co., 250 US. 76 (1919) 18
rae United States, 215 F. 544 (1st Cir. 1914) 8 24
Fulwood v. United States, 369 F. 2d 960 (D. C. Cir. 1966) 12
Griffin v. California, 380 U.S. 609 (1965): 20, 21
Grunewald v. United States, 353 U.S. 391 (1957) 21
Haberstroh v. Montanye, 493 F.2d 483 (2d Cir. 1974). 20

Jackson v. — a2 i981 F.2d —, #10248 D.C. Ct. *
of Appeals, 1 e
Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975) ........-. 20
Lovely v. United States, 169 F.2d 386 (4th Cir. 1948) . 24

Mullen v. United States, 123 U. S. App. D. C. 29, 356 F.2d

11
II
mh, ~ AE v. United States, 409 F.2d 529 (Ist *
Cir, 19869)))))) „ „ „ „ „ „„„„„„%„
— v. United States, 422 U.S. 35 (1975 18
Russell v. United States, 369 U.S. 749 (1962) 29
Shields v. United States, 273 U.S. 583 (1927) ...... 17, 18
Stansbury v. United States, 219 F.2d 165 (öth Cir. -
th peonehenid de nceheehed O ne

Stirone v. United States, 361 U.S. 212 (1960) ....3, 27, 29
United States v. Aceardo, 298 F.2d 133 ( 7th Cir. 1962) 24
United States v. Angiulo, 485 F 2d 37 (Ist Cir. 1973) .13, 14
United States v. Bailey, 468 F.2d 652 (5th Cir. 1972)

aff d 480 F.2d 518 (5th Cir. 1973) (en bane) .. . 15
United States v. Bailey, 480 F.2d 518 (5th Cir. 1973
D ˙7/7»—flt. ͤ˙ Ü—wLA n 13, 16

United States v. Brown, 411 F.2d 930 (7th Cir. 1969).
cert. denied, 396 U.S. 1017 (1970) .............. 13

iv Citations Continued

Page

United States v. Burkhart, 458 F.2d 201 (10th Cir.
gg CY RR eee yy Hie 24

nene bieus saekin See 24
United States v. Cox, 536 F.2d 65 (5th Cir. 1976) .... 24
United States v. Davis, 357 F.2d 438 (5th Cir, 1966) 20
United States v. Fioravanti, 412 F.2d 407 (3d Cir.),

cert. denied, 396 U.S. 837 (1969) .............. 13
United States v. Fiorito, 300 F.2d 424 (7th Cir, 1962) 11
United States v. Flannery 451 F.2d 880 (1st Cir. N *

14,
United States v. Goodwin, 492 F.2d 1141 (5th Cir. 1974) 24
United States v. Greenberg, 445 F.2d 1158 (2d Gir.

„ eee 11
United States v. Hale, 422 U.S. 171 (1975) 1.) 21
United States v. Harris, 391 F.2d 348 (6th Cir. 1968). 14

United States v. Hynes, 424 F.2d 754 (2d Cir.), cert.
denied, 399 U.S. 933 (1970) .................. 13, 15
United States v. Kenner, 354 F.2d 780 (2d Cir. 1965) 14
United States v. Knight, 535 F.2d 1059 (8th Cir. 1976) 24
United States v. M 430 F. 2d 523 (7th Cir. 1970) 24
United States v. Martinez, 446 F.2d 118 (2d Gir.
...e ene 13, 15
United States v. McDuffie, 542 F. 2d 236 (Sth Cir. 1976) 19
United States v. Papadakis, 510 F.2d 287 (2d Cir.)

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) 24

United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970

Rogers, 289 F.2d 433 (4th Cir. 1961) 14
United States v. Silvern, 484 F.2d 879 (7th Cir. 1973

Böer baaaaeel 22
Walsh v. United 371 F.2d 135 (9th Cir. 1967) 15
Wilson v. United States, 149 U.S. 60 2 19, 21

Citations Continued *

Page
ConsTITUTIONAL Provisions: 3 ;
Fifth Amendment, United States Constitution ....
Sixth Amendment, United States Constitution 4
Srarurrs Ax Db RuLES: a
18 U.S. C. (3%. th
26 U.. C. (7ůů . —
26 U.S.C. 6720661) ; ‘ :
Rule 43, Federal Rules of Criminal Procedure ....2, 4, 1

Rule 403, Rules of Evidence for United States Coe -
and Magist rates — .

Rule 404(b), Rules of Evidence for United States
Courts and Magistrate

OTHER AUTHORITIES

Standards for Criminal Justice,
ag to Trial by Jury §54 (A *
proved Draft 1968) L PCRS .

Duke, Prosecuté Attempts to Evade Income
—— A — View of a Procedural Hybrid,

76 Vale LJ. 1 (1966) e
udicial rence of the United States, Supplement

. to — of na Committee on the Operation of

the Jury System (1969) f — 8
‘omment, Deadlocked Juries and Dynamite: A Critic

. Look at the Allen Charge, 31 U.Chi. L. Rev. 386

(16% % růrnũglůren ee cee eeeceeceeeee —

udicial Economy a 6

3 yoke of the Allen Charge, 53

Va. I. Rev. 123 (1967) ))0)Mißũ cece eeeeees ———

* The Allen Charge Dilemma, 10 Amer. Crim. * -
, NR

26

12

12

BENJAMIN Roprigvez,
Petitioner,
v.

Unrrep States or AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

The petitioner Benjamin Rodriguez respectfully
prays that a writ of certiorari issue to review the judg-
ment and opinion of the United States Court of
Appeals for che Second Circuit entered in this proceed-
ing on November 30, 1976.

The opinion of the Court of Appeals, reported at 545
F. 2d 829, appears in the Appendix hereto (App. la-6a).
No opinion was rendered by the United States District
Court for the Southern District of New York.

The judgment of the Court of Appeals for the Second
Cireuit was entered on November 30, 1976. A timely
petition for rehearing was denied on March 25, 1977
and this petition for certiorari was filed within 30 days
of that date. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1).

1. Whether the trial court's supplementary modified
Allen instruction improperly curtailed the jury’s legi-
timate factfinding function by divorcing it from con-
siderations of fairness, invited the dereliction of its
full responsibilities by pointing to appellate remedies,
and placed undue pressure on the lone juror who
prompted it by dwelling on the juror’s supposed cor-
ruption of her oath in showing sensitivity to such
intangibles as a fair trial.

2. Whether the federal courts generally should
ban further use of the charge approved by this Court
in Allen v. United States (and given in modified form
herein) and substitute in its stead A.B.A. Trial by
Jury Standard 5.4—as the District of Columbia, Third
and Seventh Circuits have done; and, whether lower
federal courts are authorized with supervisory power

to alter such Supreme Court precedent.

3. Whether the trial court committed reversible
error in violation of Supreme Court precedent, of Rule
42 of the Federal Rules of Criminal Procedure, and/or
of petitioner's constitutional rights to be present and
heard by counsel in open court at all stages of the
proceedings when it disposed of the jury’s third dead-
lock note by sending the jury word to continue deliber-

—ͤ—ũů —— — — — —

— —— kVI „„

ꝗꝗꝗ—

at ions without advising the defense of the note or seek-
ing its views as to the appropriate judicial response.

4. Whether the prosecution's reference in final argu-
ment to petitioner’s failure to contradict its only drug
transaction witness and his failure to present evidence
of where he hid his cash hoard naturally and necessar-
ily highlighted in a critical fashion the fact that the
petitioner exercised his constitutional and statutory
rights not to testify.

5. Whether the prosecution's deliberate elicitation
of the fact that an attorney for petitioner had invoked
petitioner’s attorney-client privilege before an investi-
gating grand jury impermissibly burdened the at-
torney-client relationship; and, whether there was any
legitimate justification for such prejudicial evidence.

6. Whether the prosecution improperly prejudiced
petitioner by deliberately eliciting evidence of sup-
posed criminal associations with organized crime”’
and with a numbers operator“ which evidence was
clearly unnecessary but freely admitted under the
Second Circuit inclusionary rule for other crimes”
evidence.

7. Whether the trial court effectively amended the
grand jury’s limited and specific finding that the de-
fendant had concealed income made in heroin trans-
actions when it instructed the petit jury that it could
return a finding of guilty even though it believed pe-
titioner received no income from drug trafficking and
thus bypassed petitioner’s constitutional safeguard
of a grand jury indictment in violation of Stirone v.
United States.

4

CONSTITU“ZIONAL AND STATUTORY PROVISIONS
INVOLVED

United States Constitution
Fifth Amendment:

No person shall be held to answer for a capital
or otherwise infamous crime, unless on a ed
ment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or the
Militia, when in actual service in time of War or
public danger; . . nor shall be compelled in any
criminal case to be witness against himself.

Sixth Amendment:

In all criminal prosecutions, the accused shall
enjoy the right to a . . . public trial, by an impar-
tial jury ..., and to be informed of the nature
and cause of the accusation; ... and to have the
Assistance of Counsel for his defence.

United States Code, Title 18, Federal Rules of
Criminal Procedure.
Rule 43(a):

Presence Required.—The defendant shall be
present at the arraignment, at every stage of the
trial including the impaneling of the jury and the
return of the verdict, and at the imposition of

sentence, except as otherwise provided by these
rules. R * # #

United States Code, Title 28, Rules of Evidence For
United States Court and Magistrates:
Rule 403:

Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time.—Al-
though relevant, evidence may be excluded if its

— a ne —

— value is substantially outweighed by the
r of unfair prejudice, confusion of the is-
sues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presen-
tation of cumulative evidence.

Rule 404(b) :

Other crimes, wrongs, or acts. Evidence of other
crimes wrongs or acts is not admissible to prove
the character of a person in order to show that he
acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, pian,
2 identity, or absence of mistake or acci-
ent.

STATEMENT OF THE CASE
Preliminary Statement

A two-count indictment was founded against peti-
tioner Rodriquez on April 14, 1974, charging him, in
Count I, with attempting to evade income taxes for the
year 1967 in violation of 26 U.S. C. § 7201 by omitting
in his 1967 tax return income received from the
purchase and sale of heroin,’’ and, similarly, in Count
II, with submitting a false income tax return for the
year 1967 in violation of 26 U.S.C. § 7206(1) by failing
to report additional income derived from another
business, to wit, trafficking in heroin....’’ Following
his plea of not guilty, he was tried in the United States
District Court for the Southern District of New York
before the Honorable Robert L. Carter and a jury. A
verdict of guilty was returned as to each count on
March 2, 1976. On April 6, 1976, the Court entered
judgment sentencing petitioner to two years’ impris-
onment on Count I and to no sentence on Count IT on
grounds that it was a lesser included offense.

. On November 30, 1976, the Court of Appeals affirmed
in a written opinion. On March 25, 1977, the Court of
Appeals denied petitioner’s timely petition for rehear-
ing with suggestion for rehearing en banc.

The Indictment

An indictment was founded six years, to the day,
after the April 15, 1968 filing deadline of petitioner's
joint federal income tax return for the year 1967.
The Grand Jury charged him basically with avoiding
taxes by concealing income received in the alleged pur-
chase and sale of heroin.

The Specific Item

The government called one informant witness, Claude
Pastou, to prove this alleged drug trafficking (Tr. 918-
1109). Pastou, who faced 1000 years’ imprisonment
in this Country alone (Tr. 976-81) and who admitted
on cross-examination that he was in ‘‘an occupation
in which one survives by the use of his wits“ (Tr. 974-
75), testified that during August, September and Oc-
tober 1967 he sold 58 kilograms of heroin at $11,000
per kilogram to the petitioner. A Drug Enforcement
Administration agent testified as an expert that, in his
opinion, during that time period quick middleman sale
of such contraband would result in profit of 30 to 100
percent (Tr. 1159-1210). Additionally, there was some
evidence presented circumstantially corroborating
Pastou’s testimony that he used a suitcase with a false
bottom to transport heroin (Tr. 1110-58), that the peti-
tioner owned a maroon Lincoln (Tr. 1300-01), that the
petitioner had a son in a certain age range (approxi-
mately 5 to 7 years old in 1967) (Tr. 1226), and that

7

a court record corresponded to information Pastou
received from a third party (the person he testified
introduced him to the petitioner).

Expenditures Method Proof

Evidence was introduced by the government to show
a financial starting point of roughly $1,000 of liquid
assets in the petitioner’s hands in September of 1966.
The most direct evidence was a financial statement
petitioner had filed with a New Jersey bank in the
process of assuming a mortgage incident to the pur-
chase of a home, although the government also tried
to show circumstantially that the petitioner was short
on money at this time. Additionally, the government
proved that petitioner expended nearly $80,000 during
the last months of 1967, primarily in making invest-
ments. His tax return for 1967 reported roughly
$7,000 in income. And he also received some $5,000
from the repayment of a loan which is a nontaxable
source.

Hoard of Assets

Pursuant to its expenditures method of proof the
government, among other things, had the burden of
disproving the existence of very subtantial assets which
the petitioner claimed as the source of his expenditures.
The government attempted to disprove—and the peti-
tioner in his case attempted to prove—that the peti-
tioner had been the beneficial owner of real property
in Puerto Rico. There is no dispute that three quite
substantial properties were sold in November of 1965
nor that the petitioner, represented by counsel, was the
prime mover in the sale. There is no dispute that these
were corporate properties nor that petitioner was not
the record owner. But petitioner contended that the
other participants in the sale were his nominees

whereas the government contended to the contrary,
arguing that they, and petitioner as well, were nomi-
nees of one Raymond Marquez—an alleged numbers
operator“ in New York.

Trial Abuses

The prosecution deliberately injected into the trial
the numbers operator“ comment and references to
organized crime“. Similarly, it elicited evidence that
an attorney for petitioner had invoked the attorney-
client privilege before a grand jury investigating
petitioner. The case was finally submitted to the
jury, over defense objection, on instructions which
would permit a conviction predicated on either specific
item or expenditures proof, that is, even if the jury
disbelieved the narcotics trafficking allegations of the
indictment. The prosecutor’s final argument drew
attention to the petitioner’s failure to contradict Claude
Pastou and his failure to present evidence of where
cash was hidden, cirewmstances which the petitioner
claimed impermissibly burdened his decision not to take
the witness stand. During the course of deliberations
the jury sent out several notes. One revealed that at
least one juror held the opinion that the petitioner had
not received a fair trial. In response the trial judge
delivered a modified A/len charge which, among other
things, instructed the jury that it had no function
concerning any aspects of fairness. Another note
revealed that the juror still held the opinion that the
petitioner had not received a fair trial and also held
the opinion that the evidence was insufficient to convict.
The judge failed to notify counsel of this note and
simply sent an instruction back to the jury that it must
continue deliberating. Counsel were informed of these
communications several hours after the fact.

so eee

A trial problem arose in this case which the trial
judge interpreted as requiring a supplementary in-
struction packing even more dynamite,“ and less
balance, than the original Alen charge as passed on by
the Supreme Court in 1896. A note from the jury
advised the Court as follows.

„One juror in our group feels that the courtroom
atmosphere in the entire court was hostile at all
times to the defendant's cause of action; therefore
we cannot really ever come to a unanimous con-
clusion since that juror feels a fair trial has not
taken place here. Doesn't this mean we are im.

possibly locked and unable to give a verdict?”
phn (Tr. 2164)

The Court sent the jurors home for the evening and
heard defense counsel the following morning. Counsel
urged at length that the juror’s concern may well have
involved legitimate aspects of factfinding (Tr. 2166-
68). The Court then immediately called for the jury
and instructed it at great length (App. 7a-13a).

In brief, the judge perceived the note as an attack
on his own fairness, Aid. the essence of the complaint
is that a juror feels that the defendant, in the atmos-
phere in this courtroom, did not obtain a fair trial”

10

(Tr. 2169), and proceeded to charge the jury that
fairness was none of their concern, that it was
function of the judge to attend to fairness, that
trial was fair, and that if it were not, the Court of
Appeals sat to cure this error. Along this path the
judge admonished repeatedly those jurors who would
invade“ (App. 9a) the province of fairness that such
would corrupt their oaths’? (App. 7a, 9a, 10a, 13a),
indicated the desirability of reaching a verdict in this
important case“ (App. 10a), emphasized the expense
of the trial (App. 1la-12a), and the necessity of a dis-
position at some time, announced the ‘‘very object and
purpose of the jury system . .. to secure unanimity”
(App. 12a), suggested the need to change opinions
(App. 12a), and to *‘yield judgments in further de-
liberations (App. 12a), and misquoted the charge in
Allen v. United States, 164 U.S. 492, 501 (1896). On
the subject of Allen, the judge also gave the Court's
language from the Supreme Court’s discussion—as
distinguished from the charge being reviewed—be-
littling blind“ stubbornness (App. 13a). See gen-
erally, Note, The Allen Charge Dilemma, 10 Amer.
Crim. L. Rev. 637, 667 & n. 113 (1972).

A. A number of severe criticisms can be mounted
against this charge:

1. The great coercive pressure placed upon the lone
holdout“ juror who had prompted the charge is mani-
fest. Similar imputations that a juror was corrupting
her oath led to reversal of the conviction in Jackson v.
United States, — A.2d —, 20 Cr. L. 2437, & 10248, D.C.
Ct. of Appeals, Feb. 2, 1977. Furthermore,
the trial court did not give a second Allen type charge
in terms, its response to the jurors’ subsequent deadlock

11

note that they should continue deliberating must have
been perceived by all as a reaffirmation of the previous

charge (Tr. 2192-94).

2. Mr. Chief Justice Burger, speaking as a Circuit
Judge, has said it would be a ‘‘preearious undertaking”
for a trial judge to give a supplemental charge knowing
of a split among the jurors with a minority favoring
acquittal. Mullin v. United States, 123 U.S. App. D.C.
29, 356 F.2d 368, 370 (1966). Yet, that is precisely
what happened here.

3. The Judge in this ease may well have miseonceived
what was troubling the juror. By taking a lawyer’s
view of what a hostile“ courtroom and a fair trial“
portend, he may have overlooked the lay understanding
of these terms. In any event, the jury's proper fune-
tion in factfinding canmot be pried apart in mechanical
fashion from the judge’s function in ruling on law.
Notions of fairness permeate both roles.

4. The judge further undermined the jury by direct-
ing its attention to the existence of an appeals court
and its remedial function. Such reference could only
invite the jury to take its responsibilities less seriously
and constitutes grounds for reversal. United States
v. Fiorito, 300 F.2d 424, 427 (7th Cir. 1962) ; see United
States v. Greenberg, 445 F.2d 1158, 11962 (2d Cir.
1971) (unobjected to reference to appeals court not
reversible error, but better procedure“ to avoid such
hazards ).

5. The reliance of the court below on the fact of a
subsequent request for testimony pla ly does not show
that the jury as an entity was deliberating in a respon-
sible and conscientious fashion. We do not know which
juror or jurors made the request or for what reasons.

B. More importantly, there are substantial reasons
why the Supreme Court should hear this case:

J. The time has come for this Court to review the
continuing viability and advisability of Allen v. United
States, 164 U.S. 492 (1896). The charge found in that
case not to be reversible error has become a standard
deadlock-breaker as well as a springboard for numerous
free-style ventures such as the one appearing herein.
The commentators, however have identified great
hazards in Allen and many courts have agreed. See
generally, Note, The Allen Charge Dilemma, 10 Amer.
Crim. L. Rev. 637 (1972); Note, Due process, Judicial
Economy and the Hung Jury: A Reexamination of
the Allen Charge, 53 Va. L. Rev. 123 (1967) ; Comment,
Deadlocked Juries and Dynamite: A Critical Look
at the Allen Charge, 31 U. Chi. L. Rev. 386 (1964).
Among the criticisms are the inherently coercive nature
of the charge and the economic drawbacks in spawning
innumerable appeals. Joining in the criticism are the
American Bar Association, A. B. A. Project on Stand-
ards for Criminal Justice, Standards Relating to Trial
by Jury § 5.4 (Approved Draft 1968) and the Judicial
Conference of the United States, Supplement to
Report of the Committee on the Operation of the
Jury System 2 (1969). And, Mr. Chief Justice Burger,
again speaking as a District of Columbia Court of
Appeals Judge, has stated “that considerable work
for this court would be eliminated if Distriet Judges
would consistently use a form of instructions plainly
within Alen“. Fulwood v. United States, 369 F.2d
960, 963 (D.C. Cir. 1966).

2. A direct conflict exists among the Circuits. Allen
has been banned and the A.B.A. Standards substituted

13

in its stead in the District of Columbie, the Third, and
the Seventh Cirenits. ( nited States v. Thomas, 449
F.2d 1177 (D.C. Cir. 1971) (en banc); United States
v. Fioraventi, 412 F.2d 407 (3d Cir.), cert. denied, 396
U.S. 837 (1969) ; United States v. Brown, 411 F.2d 930
(7th Cir. 1969), cert. denied, 396 U.S. 1017 (1970);
United States v. Silvern, 484 F.2d 879 (7th Cir. 1973)
(en banc). On the other hand, the First, Seeond, Fifth
and Eighth Cireuits have expressly refused to take this

United States v, Flannery, 451 F.2d 880, 884
(Ist Cir. 1971); United States v. Angiulo, 485 F.2d 37,
40 (ist Cir. 1973); United States v. Hynes, 424 F. 2
754 (2d Cir.), cert. denied, 399 U.S. 933 (1970) ; United
States v. Martinez, 446 F.2d 118 (2d Cir. 1971);
United States v. Bailey, 480 F.2d 518 (5th Cir. 1973)
(en banc) ; United States v. Wiebold, 507 F.2d 932 (8th
Cir. 1974). Petitioner invited the court below to switeh
to the A. B. A. Standard, but it ignored the invitation.
The prevailing attitude in the Second Cireuit was
plainly stated by Judge Feinberg in United States v.
Martinez, supra, 446 F.2d at 119:

We recognize that in recent years the traditional
„Allen“ charge has received criticism from both
see e. g., United States v. Sawyers, 423
F 1344 (4th Cir. 1970) (dissenting
nion); Thaggard v. United States, 354 F.2d
75. 739 (Sth Cir. 1965) N inion);
Huffman v. United States, 297 F.2d 754. 755 (Ith
Cir. 1962) (opinion dissenting in part), and com-
mentators, see e. g., 2 C. Wright, Federal Practice
and Procedure (Criminal) § 502, at 360 (1969) ;
Comment, On Instructing ked Juries, 78
Yale LJ. 100 (1968) ; Note, Due Process, Judicial
and the Hung Jury: A reexamination

of the Allen Charge, 53 Va. I. Rev. 123 (1967), and
that some jurisdictions forbid its use entirely see,

14

e. g., United States v. Thomas, [449 F.2d 1177,
39 L.W. 2306 (D.C. Cir. mal 1970); Uni

9 L. Ed. 2d 102 (1962).

Whether the Allen Charge is necessarily coerci
or not, or whether it should be eliminated merely as a
prophylactic measure, the question is one which de-
serves an answer and a uniform federal rule by the
Supreme Court. Since unanimous 12 person juries
are required in federal criminal cases, constitutional
issues are clearly embroiled in the conflict. And, since
this Court has supervisory power over lower federal
courts, an answer can be rendered even if no constitu-
tional violation is found in this case.

3. Further conflict exists among the Cireuits (and
among the States as well) concerning when, if ever, in
what form and under what circumstances a trial court
should give an Allen charge. Compare, United States
v. Flannery, 451 F.2d 880 (1st Cir. 1971) ; United States
v. Angiulo, 485 F.2d 37 (Ist Cir. 1973); United States
v. Kenner, 354 F.2d 780, 782-84 (2d Cir. 1965) ; United
States v. Rogers, 289 F.2d 433 (4th Cir. 1961); United
States v. Harris, 391 F.2d 348, 355 (6th Cir. 1968) ;

‘9

5

15

Chicago d E. I. Ry. v. Sellars, 5 F.2d 31 (8th Cir.
1925) ; Walsh v. United States, 371 F.2d 135 (9th Cir.
1967) ; United States v. Wynn, 415 F.2d 135 (10th Cir.
1969) with United States v. Hynes, 424 F.2d 754 (2d
Cir.), cert. denied, 399 U.S. 933 (1970) ; United States
v. Martinez, 446 F.2d 118 (2d Cir. 1971); and United
States v. Sawyers, 423 F.2d 1335, 1342-43 (4th Cir.
1970). See generally, United States v. Bailey, 468
F. 2d 652, 667-68 (Sth Cir. 1972), af d., 480 F.2d 518
(Sth Cir. 1973) (en banc). Allen v. United States, 164
U.S. 492 (1896) has not withstood the test of time.
Indeed, it has become so eroded and so hedged about
over the years that it serves now more as a source of
confusion—and an enticement to error—than as a pole-
star for trial judges.

4. A final question remains. Apparently the lower
federal courts have some doubt concerning their au-
thority under the supervisory power to ban a jury
instruction which this Court has once approved. Mr.
Justice (then Cireuit Judge) Stevens identified this
‘difficult question“ in his concurring opinion in U nited
States v. Silvern, 484 F.2d 879, 885, 886 (7th Cir. 1973)
(en banc) in which he observed:

that an instruction to a jury which the Su
Court has specifically and squarely held is not

Possibly the answer is confidence that Su
Court review of a decision such as this lead

it does
warranted, 89 a completely satis-

And, Cireuit Judge Coleman voted with the majority
in United States v. Bailey, 480 F.2d 518, 519 (Sth Cir.
1973) (en banc) only because he believed himself bound
to this Court’s decision in Allen.

If the lower courts have power to modify the rigors
of Allen, they should be so advised. If they lack this
authority, they also should be so advised. And, if the
latter is true, it is a further reason for this Court to
grant certiorari and review its 1896 precedent in Allen.

Following the Allen episode of the previous point,
the trial judge received another note from the jury
describing the circumstances of its continued disagree-
ment. Instead of (1) notifying the petitioner and (2)
his counsel and (3) giving them the opportunity (4)
to appear and (5) to respord, and then instead of
(6) having the jury brought to the open courtroom
(7) for whatever instructions it deemed appropriate in
its informed discretion after hearing from the parties,
and (8) after hearing timely exceptions, the Court
simply sent in word to them that I wanted them to
continue in their deliberations’’ (Tr. 2193) and ad-
vised counsel of this several hours after the fact. This
entire episode which violates a panoply of established

17

rights and controvenes all orderly trial procedure,
appears succinctly in the transcript:

“Tue Cour: I have a note which I received
from the jury while I was in the other case and the
answer to which I indicated that I wanted them to
continue to deliberate, but I will read the docu-

:

‘Your Honor, we, the members of the 22
were voting on the verdict since 2:30
when we had ten guilty, one undeci — —
not guilty.’
“*T can’t read that. There is one phrase I can’t
read, but something on something
| Afaybe it means ‘On a further ballot the un
i shifted to guilty and the same juror still
votes not guilty. Apart from one juror feeling,
1 1 . verdict of
guilty, this juror continues to feel that the trial
was conducted in an atmostphere detrimental to
the defendant’s cause of action. rye — Ay we

note, and I am go eving in that.
oul — Honor indicate a
about what time that note was sent in, please ?
“Tue Court: I thought I had indicated that.
3.45. (Tr. 2192-93)

This, we submit, is the antithesis of due process.

In Shields v. United States, 273 U.S. 583 (1927) a
unanimous Supreme Court reversed the petitioner’s
conviction in a case where the jury sent a note com-
municating inability to agree as to some defendants
and the judge on his own sent back a written reply
telling the jury they would have to decide as to all de-
fendants. Shields appears to be remarkable indistin-

18

guishable from the case at hand. And Shields is still
good law.’

In Rogers v. United States, 422 U.S. 35 (1975) a
unanimous Supreme Court, speaking through the
Chief Justice, reversed the petitioner’s conviction as
plain error in a case where the jury sent a note inquir-
ing whether the Court would accept a verdict of
Guilty as charged with extreme mercy of the court“
and the judge on his own sent back instructions
through the marshal that his answer was affirmative.
Shields is prominently cited, quoted, and relied on in
Rogers.

Herein the petitioner and his counsel were, among
other things, deprived of the substantial right to ad-
dress advocacy to the trial court’s diseretion before it
acted on the problematical note. See Fillippon v. A“
bion Vein Slate Co., 250 U.S. 76 (1919). Counsel may
well have argued for declaration of a mistrial because
of the jury’s failure to agree. He could have argued
for supplemental instructions or other measures, if he
had been informed. And the instruction to keep de-
liberating may well have been perceived as a legal
instruction reaffirming the trial court’s disapproval
of the lone holdout juror’s concern over fairness.
Thus, the court below did not successfully distinguish
Shields and Rogers.

The court below also erred in relying upon the ab-
sence of an objection. Since the trial judge concluded
“and I am going to persist in that’’, an objection
would have been futile and discourteous. Moreover,
the error qualifies as plain error.

Indeed, it is now buttressed by Rule 43 of the Federal Rules
of Criminal Procedure.

19

Finally, the court below ignored the constitutional
basis of the error, relying on Rule 43 only, and thus
did not make the difficult finding that the error was
harmless beyond a reasonable doubt.

The decision of the court below is in direct conflict
with the controlling Supreme Court precedents cited,
Furthermore, although the law governing communica-
tions with the jury should be clear, many federal trial
judges appear to be unaware of it and in fact often
proceed in what they regard as simple matters out of
the presence of counsel. For other recent instances,
see United States v. Robinson, 544 F.2d 611, 620-21 (2d
Cir. 1976) (sealing of juror’s note), pet. for reh. en
bane granted, Feb. 17, 1977; United States v. McDuffie,
542 F.2d 236, 240-41 (5th Cir. 1976).

The attitude that allows trial judges to dispatch
with deadlock notes without even advising counsel is
an affront to the adversary system and should be
repudiated by this Court. Moreover, the concept that
such a departure from basic trial guarantees can be
forgiven under a “harmless error’’ rule provides a
further ground for granting the writ.

The Decision Below Conflicts in Principle with Decisions of
This Court Forbidding the Prosecution from Commenting
Upon a Criminal Defendant's Decision Not To Testify in
His Own Behalf

It has long been the law in federal courts that re-
marks about the defendant’s failure to take the stand

constitute reversible error. 18 U.S.C, § 3481; Wilson .

United States, 149 U.S. 60 (1893). Such statements

infringe upon the defendant's presumption of inno-

cence and violate his Fifth Amendment right against
self-incrimination by converting silence to evidence of

20

guilt. Griffin v. California, 380 U.S. 609 (1965). The
test for determining whether a statement before a
jury by the judge or prosecutor was an improper com-
ment upon a defendant’s failure to testify has been
defined as whether the language used was manifestly
intended or was of such a character that the jury would
naturally and necessarily take it to be a comment on
the failure of the accused to testify. United States v.
Williams, 503 F.2d 480, 485 (2d Cir. 1974); Haber-

st roh v. Montanye, 493 F.2d 488 (2d Cir. 1974) (per

curiam). Direct and indirect references by a prosecu-
tor to an aceused's decision not to testify and to rely
on the presumption of innocence have on more than
one occassion contributed to reversal of a conviction.
See, e.g., Griffin v. California, supra; Kelly v. Stone,
514 F.2d 18 (9th Cir. 1975) (per curiam); United
States v. Smith, 500 F.2d 293 (6th Cir. 1974); United
States v. Flannery, 451 F.2d 880 (1st Cir. 1971);
Rodriguez-Sandoval v. United States, 409 F.2d 529
(Ist Cir. 1969); United States v. Davis, 357 F.2d 438
(5th Cir. 1966) ; Carlin v. United States, 351 F.2d 618
(5th Cir. 1965); Desmond v. United States, 345 F.2d
225 (Ist Cir. 1965); Barnes v. United States, 8 F.2d
832 (8th Cir. 1925).

In the case at bar, defendant finally chose not to tes-
tify; rather, he relied on his Fifth Amendment right
to remain silent, on the prosecution’s burden of proof
imposed by our Constitution, and on the presumption
that an accused is innocent until proven guilty beyond
a reasonable doubt. Nonetheless, during his final ar-
gument, the prosecutor clearly implied that the jury
should consider the defendant’s failure to testify in
determining defendant's guilt or innocence (Tr. 2007-
08; 2079-81).

21

The conclusion of the court below that a jury would
not get the prosecution’s intended message defies the
facts and indicates conflict with the spirit of this
Court’s decisions in Griffin v. California, 380 U.S. 609
(1969) and Wilson v. United States, 149 U.S. 60
(1893). Certiorari should be granted.

IV.

The Prosecution’s Deliberate Elicitation of the Fact That an
Attorney for Petitioner Had Invoked Petitioner's Attorney-
Client Privilege Before an Investigating Grand Jury
Constitutes Error in Legal Conflict with the Third Circuit
and in Derogation of this Court's Decisions Concerning
the Fifth Amendment Privilege Against Self-Incrimination

The prosecuter deliberately and unjustifiably drew
attention, over objection, to the fact that Mr. Irwin

Zemen, the attorney who had represented the petition-

er during the crucial property transactions of Novem-

ber 1965, invoked the petitioner’s attorney-client priv-
ilege when he appeared before a grand jury in Puerto

Rico (Tr. 1533-34; see also 1526). Petitioner's mo-

tions for a mistrial were denied (Tr. 1534; 1643-45).

Specifically, in eross-examining Mr. Zemen the pros-
ecutor confronted him with grand jury testimony in
which he declined to disclose any of the investors in
the Madrid Hotel Corporation (Tr. 1533-34). The pro-
priety of Mr. Zemen’s invocation of the attorney-client
privilege has never been challenged. Moreover, that
assertion of privilege was not the least inconsistent,
factually or legally, with anything Mr. Zemen had
said at trial. See United States v. Hale, 422 U.S. 171
(1975); Grunewald v. United States, 353 U.S. 391
(1957). The preceding grand jury testimony read by
the prosecutor was arguably proper impeachment. But
the final question and answer read related to the pe-

titioner’s privilege and only served the purpose of in-
viting the jury’s attention to a circumstance which
undoubtedly was viewed adversely by some of the
jurors. Again, the petitioner’s silence was emphasized.

The court below failed even to address this infringe-
ment of the petitioner’s rights. But the result seems
at war with the spirit of the Supreme Court’s recent
Fifth Amendment decision in Doyle v. Ohio, 96 S.Ct.
2240 (1976) and in legal conflict with the Third Cir-
cuit's Sixth Amendment right to counsel decision in
United States ex rel. Macon v. Yeager, 476 F.2d 613
(3d Cir. 1973). If the prosecution is free to draw ad-
verse inferences from invocation of the attorney-client
privilege, then the right to counsel as well as the priv-
ilege itself have been greatly burdened.

The prosecutor also planted a seed oi explanation
for the petitioner’s silence.

First, in his direct examination of Revenue Agent
Davidson the prosecutor deliberately elicited that the
agent was assigned to an Organized Strike Force“
(Tr. 1243), that he had training in Strike Force“
fraud courses and that this meant investigation of tax
returns of alleged members of organized crime. The
Court failed to grant a mistrial or strike the testimony
but it did tell the jurors that the testimony was not to
influence the deliberations (Tr. 1243-47).

23

Then, in cross-examining a Mr. Adorno, the prose-
cutor asked about a man, Raymond Marquez, whom the
prosecutor intended to argue was closely associated
with the petitioner: ‘‘Mr. Marquez is in the business of
running the numbers game, is he not?“ (Tr. 1832).
The petitioner’s motion for a mistrial was denied (Tr.
1833). Similarly, the prosecutor again inserted the
issue of guilt by association when during rebuttal he
repeated the identification of Marquez as a numbers
operator. This occurred in a context in which (a)
no one had challenged who Marquez was, (b) his occu-
pation was irrelevant, (e) the prosecutor had just as-
sured the judge that the answer he wanted would be
relevant to a proper inquiry, (d) defense counsel ob-
jected beforehand, (e) the witness was an FBI agent,
and (f) the answer was an alleged admission of the
petitioner himself. Petitioner’s motions for a mistrial
were denied (Tr. 1907-7-8; 1994-95). And, thereafter
the prosecution flaunted Raymond Marquez in argu-
ment to the jury (Tr. 2013, 2018, 2020-21, 2022, 2024;
see also 2072, 2073, 2076-77, 2080-81) thus foreing de-
fense counsel also to struggle with this problem (Tr.
2038, 2041).

Irrelevant and highly prejudicial testimony hinting
the petitioner’s involvement in organized crime and
numbers operation had no business in this case. Rules
404(b) and 408, Rules of Evidence for United States
Courts and Magistrates. Casting petitioner as the real
estate nominee of Marquez was perhaps permissible
advocacy ; casting him as a partner in crime was not.
Here, the association with numbers operations not only
impermissibly puts the petitioner's character in issue
before the jury but also conjures poisonous specula-

tion that he may have received unreported taxable in-
come in 1967 from a gambling enterprise.

In short, the prosecution committed reversible error
by its persistent efforts which deprived petitioner of
his rightful cloak of innocence and instead tarred
him in a presumption of criminality. (f., Estelle v. Nil-
liams, 425 U.S. ——, 19 Cr. L. 3061, May 3, 1976.

In other Cireuits such evidence of other crimes,
wrongs, or acts would never have been admitted. E. g.,
Fish v. United States, 215 F. 544 (1st Cir. 1914);
Lovely v. United States, 169 F.2d 386 (4th Cir. 1948);
United States v. Cor, 36 F.2d 65 (Sth Cir. 1976);
United States v. Goodwin, 492 F.2d 1141 (5th Cir.
1974); Stansbury v. United States, 219 F.2d 165 (5th
Cir. 1955) ;l nited States v. Ring, 513 F.2d 1001 (6th
Cir. 1975); United States vy Machen, 430 F.2d 523 (7th
Cir. 1970); United States v. Accardo, 298 F.2d 133,
136-38, 140-41 (7th Cir. 1962); United States v.
Knight, 535 F.2d 1059 (8th Cir. 1976); United States
v. Crawford, 438 F.2d 441 (8th Cir. 1971); DeVore v.
United States, 368 F.2d 396 (9th Cir. 1966); United
States v. Burkhart, 458 F.2d 201 (10th Cir. 1972) (en
banc). But in the Second Circuit the so-called in-
clusionary rule“ has prevailed. E. g., United States v.
Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied,
421 U.S. 950 (1975). See also, Bradley v. United
States, 140 U.S. App. D.C. 7, 433 F.2d 1113, 1118 n. 18
(1969) (court refrains from choosing between the in-
clusionary and exclusionary rule). This conflict remains
even after passage of the Rules of Evidence for United
States Courts and Magistrates. Under the inclusion-
ary rule, anything comes into evidence which the trial
court views as having any relevance to the case—even
though it imports problems of other crimes, wrongs

25

or acts into the trial These are excluded, if at all,
on grounds only of substantially overweighing prej-
udice, confusion, or waste of time just like any other
evidence under Rule 403. And, as a practical matter,
other crimes”’ evidence is admitted so readily in the
Second Circuit that the court below did not bother to
diseuss the issue in this case. This great conflict in
principle between the Circuits should be resolved.

The net effect of the prosecution’s veiled comment
upon the petitioner’s decision not to testify, its bring-
ing into evidence Mr. Zemen's invocation of the at-
torney-client privilege on petitioner’s behalf, and its
unwarranted injection of other crimes’’ evidence
was to destroy the presumption of innocence in this
close and hotly-disputed case.

A two-count indictment was founded against pe-
titioner on April 14, 1974, charging him, in Count I
with attempting to evade income taxes for the year
1967 in violation of 26 U.S.C. § 7201 by omitting in his
1967 tax return income received from the purchase
and sale of heroin,“ and, similarly, in Count II. with
submitting a false income tax return for the year 1967
in violation of 26 U.S.C. § 7206(1) by failing to report
additional income derived from another business, to
wit, trafficking in heroin ....’’ Despite the singular-
ity of the Grand Jury finding of narcotics trafficking
income, the trial was permitted to proceed to verdict
on expenditures method proof as well as a specific item

proof and, significantly, the petit jury was instructed
that it could return a finding of guilty even though it
may have believed that petitioner received no income
from drug trafficking (Tr. 2145-61). That is, the
Grand Jury made specific and relevant allegations that
one particular kind of income had been concealed. The
prosecution attempted to prove the specific item alle-
gation by Claude Pastou’s testimony and to corrobor-
ate this charge cireumstantially by expenditures
method proof. See generally, Duke, Prosecutions for
Attempts to Evade Income Tax: A Discordant View
of a Procedural Hybrid, 76 Yale L.J. 1, 13, 15 (1966).
No complaint is lodged against this procedure. But
the trial jury was finally instructed that it could ig-
nore the heroin dealing allegations and convict without
finding that the petitioner made his income from any
particular source.

Throughout the trial petitioner urged that a verdict
could not properly be predicated on charges extending
bevond the grounds of the indictment. He submitted
jury instructions to this effect (Requests Nos. 7 and
8), which were denied. But the issue came to a pre-
cise head when the jury requested a specific instrue-
tion,

Please, may we have an answer to: Is it suffi-
cient evidence of guilt that the defendant spent
moneys [sic] in 1967 in excess of reported in-
come regardless of the source of that income, pre-
— bis ust Westh Gun — ta
statement of net worth, or did that income have

to come from the heroin trafficking?’’, (Tr. 2158-
59; 2145),

and the Court over objection (Tr. 2160-61) answered,
in essence, yes, it is sufficient evidence of guilt that

27

petitioner spent money in excess of reported income
without regard to particular source and, no in order
to convict the defendant under the expenditures meth-
od you need not find that he made his income from any
particular Source“ (Tr. 2059-60).

Petitioner contends that the Court effectively
amended the indictment and permitted the petit jury
to rest conviction on charges never made against him
by any Grand Jury in violation of Stirone v. United
States, 361 U.S. 212 (1960). The prosecution con-
tends, and the court below agreed, that there was no
violation of the Supreme Court's unanimous decision
in Stirone, that the Grand Jury's findings of heroin
trafficking income were mere surplusage which could
properly be read out of the indictment.

Stirone v. United States, 361 U.S. 212 (1960) was a
Hobbs Act prosecution for interfering with interstate
commerce by extortion. The indictment charged that
the defendant used his influential union position to
obstruct, delay and affect interstate commerce by ex-
tortion of money from the owner of a ready-mix con-
erete plant induced by fear and threats of labor dis-
putes and of interference with the victim's eo..cact
to supply ready-mix concrete from his plant to be used
for the erection of a steel-processing plant. In plead-
ing the essential element of interstate commerce the
Grand Jury not only alleged in general terms but also
made the limited and specific finding that the steel

contract caused sand to be moved in interstate
commerce to the concrete plant. But the trial court
rged the petit jury with two theories concerning
interstate commerce element, namely, that the de-
fendant’s guilt could be resved either on a finding (1)
that sand used to make the conerete had been shipped

F F

into the conerete plant from out of state or (2) that
the concrete was used for constructing a mill which
would manufacture articles of steel to be shipped out
of state. Thus the petit jury could return a verdict
of guilty even though it believed no shipments of sand
were proven, contrary to what the Grand Jury had in
mind.

In other words, when the Grand Jury charges an
element of the crime which cannot be treated as sur-
plusage its description cannot be amended freehand.
361 U.S. at 218-19.

The same error inheres in the instant prosecution.
In pleading the essential element of concealed taxable
income the Grand Jury not only alleged in general
terms but also made the limited and specific finding
that petitioner had received the income from the pur-
chase and sale of heroin. But the trial court charged
the petit jury with two distinct theories concerning
the concealed taxable income one of which would per-
mit a guilty verdict rested on a finding contrary to a
belief that heroin transactions were proven as the

Grand Jury specified.

Indeed, the trial jury’s note in the instant case sug-
gests that it may have rejected out of hand Claude
Pastou’s testimony of trafficking in drugs with peti-
tioner. For all we know, it may have had in mind
entirely different sources of income, such as mortgage
payments received in 1967 (Tr. 129-130; 190-92; 196-
197) or even such dark unproven sources improperly
interjected by the prosecutor as the numbers game run
by Raymond Marquez (Tr. 1832) or “‘organized crime”’
generally (Tr. 1243-47). After all, the trial court did
not require any particular source”’ to be proved.

For purposes of logic, the danger of bypassing the
Grand Jury's specification, see generally, Russell v.
United States, 369 U.S. 749 (1962), may be viewed as
follows: The heroin in the instant case is to the mort-
gage payments (and so forth) as the sand in Stirone
was to the steel. In each case the indictment was effee-
tively amended to permit a conviction to rest outside
the Grand Jury's charge; accordingly, on the strength
of Stirone petitioner's conviction should have been
reversed. The preservation of the Fifth Amendment
safeguard of a Grand Jury indictment process requires
no less.

For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Second Circuit.

Attorneys for Petitioner

APPENDIX

la
APPENDIX
OPINION OF THE COURT OF APPEALS

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 1317—September Term, 1975.
(Argued August 17, 1976 Decided November 30, 1976.)
Docket No. 76-1188

Unrrep States or America, Appellee,
v.
Bensamin Ropriovez, Defendant-Appellant.

Before:

Van Graarerann, Circuit Judge, Kettener* and
Gaotsarnt,** District Judges.

Appeal from judgment of conviction after jury trial
before Hon. Robert L. Carter in the United States District
Court for the Southern District of New York, on one count
of attempted income tax evasion, 26 U.S.C. 4 7201, and one
count of filing a materially false income tax return, 26
U.S.C. 5 7206(1).

Affirmed.

Aveert J. Keiecer, New York, N. V., and Josern Breer,
Miami, Florida, for Defendant-Appellant Rodriguez.

Joun N. Busn, Assistant U.S. Attorney (Robert B. Fiske,
Jr., United States Attorney for the Southern District
of New York; Audrey Strauss, Assistant U.S. At-
torney, Of Counsel), for Appellee.

* Of the Central District of California, sitting by designation.
** Of the Southern District of New York, sitting by designation.

2a

Gacuiarpi, District Judge:

On April 16, 1974 a two count indictment was filed
charging Benjamin Rodriguez with attempting to evade
payment of income tax for the year 1967, 26 U.S.C. § 7201,
and with filing a materially false income tax return for
the same year, 26 U.S.C. §7206(1). After a twelve day
jury trial in the United States District Court for the
Southern District of New York before Robert L. Carter, J.,
Rodriguez was found guilty on both counts. He now urges
reversal on several grounds, the most serious of which is
his contention that the trial judge committed reversible
error when, in response to a deadlock note sent by the
jury, he sent instructions to it to continue deliberations
without notifying counsel of the note and his response
thereto. We turn first to this claim and the circumstances
surrounding it.

At 3:45 P.M. on March 2, after the jury had been de-
liberating for one and one half days, Judge Carter received
a note from the jury which indicated that the jurors felt
they were unable to reach a unanimous verdict. Without
informing counsel of the receipt of this note or its con-
tents, Judge Carter sent a message to the jury instructing
it to continue deliberating. Two hours later the jury
requested that the testimony of a crucial government wit-
ness be read. Judge Carter summoned counsel, the note
was discussed, the relevant testimony was identified and
read to the jury, and the jury retired. The judge then
notified counsel for the first time that he had received the
deadlock note two hours earlier. He informed counsel that
he had instructed the jury to continue deliberating and
that he was still of the opinion that continued delibera-
tions were appropriate. Counsel for the defendant made
no objection upon learning of Judge Carter’s disposition

Judge Carter was at that time conducting a hearing on an ap-
plication for a preliminary injunction in another matter.

3a

of the earlier note. One hour after this colloquy the jury
returned with its verdict of guilty. Rodriguez now con-
tends that the District Court committed reversible error
when it responded to the jury’s deadlock note without first
notifying counsel of it and soliciting their statements. We
reject his contention.

Although we recognize that the preferred course is for
the District Court to notify counsel of all communications
from the jury, Rule 43, Fed. R. Crim. P., and we hold that
the course followed here was erroneous, we find no plain
error warranting reversal of the conviction. We hold in-
stead that the error was harmless, for it did not prejudice
the defendant, and may therefore be disregarded. Fed. R.
Crim. P. 52(a). See United States v. Reynolds, 489 F.2d
4, 7-8 (6th Cir. 1973), cert. denied, 416 U.S. 988 (1974);
United States v. Arriagada, 451 F.2d 487, 488 (4th Cir.
1971), cert. denied, 405 U.S. 1018 (1972). C/. United States
v. Schor, 418 F.2d 26, 30 (2d Cir. 1969); United States v.
Crutcher, 405 F.2d 239, 244 (2d Cir. 1968), cert. denied,
394 U.S. 908 (1969); United States v. Compagna, 146 F.2d
524, 528 (2d Cir. 1944), cert. denied, 324 U.S. 867 (1945).

Rule 43, supra, guarantees to a defendant in a erim-
inal trial the right to be present ‘at every stage of the
trial.... Rogers v. United States, 422 U.S. 35, 39 (1975).
Here, however, we find that the note from Judge Carter
to the jury, directing it to continue ¢eliberating, produced
no ‘‘reasonable possibility of prejudice’’ to the defendant
although sent without prior notice to counsel. United
States v. Reynolds, supra at 8. See United States v. Toliver,
Dkt. Nos. 76-1130, 76-1136, 76-1202 (2d Cir. September 2,
1976), slip opin. 5321, 5332, quoting Walker v. United
States, 322 F.2d 434, 436 (D.C. Cir. 1963), cert. denied, 375
U.S. 976 (1964). See 3 Wright, Federal Practice and Pro-
cedure § 724, at 203 (1969).

Counsel were informed of the communication to the jury
two hours after it had been given, and any objection to

4a

the continuation of jury deliberations could have been taken
effectively at that time. The intervening request for the
testimony of a key witness indicated that the jury had
received the court’s instruction to continue in a responsive
manner and was deliberating in a responsible and con-
scientious fashion. The jury did not request and Judge
Carter did not give legal instructions in the absence of
defendant and defense counsel. Nor did the Judge comment
on the form or acceptability of the verdict in response to
a jury inquiry. These factual circumstances distinguish the
case before us from Rogers v. United States, supra, and
Shields v. United States, 273 U.S. 583 (1927). Accordingly,
upon a consideration of the non-prejudicial nature of the
court’s communication to the jury and the absence of
objection, we find no plain error requiring reversal.

We turn now to appellant’s other claims of error, which
may be disposed of in more summary fashion. He argues
that the District Court erred in instructing the jury that it
could probably reach a guilty verdict without finding that
the source of his unreported income was the purchase and
sale of heroin, as averred in the indictment which charged
him with attempted income tax evasion. Appellant contends
that such instructions effectively amended the indictment
and violated the rule against prejudicia! variance enunci-
ated in Stirone v. United States, 361 U.S. 212 (1960). We
disagree. The essential elements of the violation charged
were the realization of substantial unreported income by
the defendant and tle wilful and knowing attempt to evade
payment of the income tax due. Sansone v. United States,
380 U.S. 343 (1965). To establish these elements the gov-
ernment introduced evidence under both the specific items
and the expenditures method of proof. From the totality
of the evidence the jury could reasonably and properly
have inferred the existence of the essential elements with-
out finding beyond a reasonable doubt that the specific
source of the income was heroin transactions. United States

5a

v. Massei, 355 U.S. 595 (1958). The averment in the indict-
ment of this source may be treated as surplusage; since it
is not essential to the proof of the violation charged, the
jury may be instructed to disregard it. United States v.
Cirami, 510 F.2d 69 (2d Cir.), cert. dented, 421 U.S. 964
(1975); United States v. Colasurado, 453 F.2d 585, 590-591
(2d Cir. 1971), cert. denied, 406 U.S. 917 (1972) ; see United
States v. Rosenblum, 176 F.2d 321, 323-324 (7th Cir.), cert.
denied, 338 U.S. 893 (1949).

We also find appellant’s attack on the supplemental
charge delivered by Judge Carter to be unpersuasive. At
the close of the first day of deliberations, the jury sent
Judge Carter a note which stated that one juror felt that
the defendant had not received a fair trial and asked if this
meant that it would be unable to return a verdict. Judge
Carter sent the jury home for the evening and the next
morning gave supplementary instructions emphasizing the
jury’s duty to find the facts based on the evidence pre-
sented. In addition, Judge Carter gave a modified Allen
charge.

This Court has regularly upheld such a modified Allen
charge. See e.g., United States v. Bermudez, 526 F. 2d 89,
99-100 (2d Cir. 1975); United States v. Tyers, 487 F.2d
828, 832 (2d Cir. 1973), cert. denied, 416 U.S. 971 (1974);
United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir. 1971),
cert. denied, 404 U.S. 1025 (1972). We find nothing in the
charge in this case which exceeds the permissible encourage-
ment of the jurors to pursue their deliberations toward a
verdict, if possible, in order to avoid the expense and delay
of a new trial. The jury was neither coerced nor dis ected
toward any verdict. Bermudez, supra at 100. In his supple-
mentary instructions Judge Carter responsibly and prop-
erly dealt with the concern voiced by one juror concerning
the fairness of the trial by correctly delineating the respec-
tive responsibilities of the court and the jury. In these
circumstances the District Court’s reference to the review-

6a

ing responsibility of the Court of Appeals over its conelu-
sions of law neither coerced the jury in its determination
of the facts nor undermined the seriousness and con-
scientiousness with which it undertook them. See, b. g.,
United States v. Marchese, 438 F. 2d 452, 455 (2d Cir. 1971)
cert. denied, 402 U.S. 1012 (1971).

Finally, we find no merit in the claim that the prosecutor
improperly called the jury’s attention to defendant’s deci-
sion not to testify in his own behalf. Cf. Griffin v. Cali-
fornia, 380 U.S. 609 (1965). We have repeatedly held that
the prosecutor may comment upon the defense’s failure to
contradict the government’s case. United States ex rel.
Leak v. Follette, 418 F.2d 1266, 1268-1270 (2d Cir. 1969),
cert. denied, 397 U.S. 1050 (1970). This is particularly
proper where contradictory testimony was potentially avail-
able from witnesses other than the defendant himself.
United States v. Lipton, 467 F.2d 1161 (2d Cir. 1972)

cert. denied, 410 U.S. 927 (1973) ; United States v. Deutsch
451 F.2d 98, 117 (2d Cir. 1971), cert. denied, 404 U.S. 1019
(1972). The remarks of the prosecutor in this case were
not of such character that a jury would naturally and neces-
sarily take them as comment on the failure of the defendant
to testify, and therefore were not unfairly prejudicial

United States ex rel. Leak v. Follette, supra.

We have considered appellant’s other assi

ignments of
error and find them to be without merit. For the fore-
going reasons, we affirm the judgment of conviction.

— a ge ee

7a
SUPPLEMENTAL CHARGE TO THE JURY

(Transcript of March 2, 1976, pp. 2169-78)

[2169] (Jury present.)
The Court: Good morning, ladies and gentlemen.

I sent you home last night and deferred until today to
respond to your note because you had had a full day yester-
day and I wanted all of you to be rested and clearheaded
so that you could absorb fully my comments.

Now, each of you took an oath when you sat down in that
jury box to truly try this case, based on the evidence and
on the law as I gave it to you and stated it to you.

Each of you took the oath that you did not sit in that
jury box with some hidden, unrevealed personal agenda
which you would attempt to pursue.

Now, your obligation and responsibility as jurors is to
decide the facts, based on the evidence, solely on the evi-
dence you heard in this courtroom, and on the law as I
state it to you.

If you fail or refuse to do that, you have corrupted your
oath and the legal process, and you cannot escape that re-
sult, let me suggest to you, by throwing the responsibility
on someone else’s shoulders.

Now, as I understand, the essence of the complaint is
that a juror feels that the defendant, in the atmosphere in
this courtroom, did not obtain a fair trial.

[2170] In the courtroom and in court trials there is a
ritual and each of us in this ritual has a function, counsel,
the Court and the jury.

A trial is an adversary proceeding, and counsel are en-

gaged in a contest of skills, and at times that contest be-
comes heated. It has occurred; you have noticed that at

some point in this trial.

8a

The function of the court is, one, to maintain order and
to be sure that the trial process proceeds in an atmosphere
where there can be a rational and fair trial.

In the first instance, the ultimate responsibility of the
Court is to insure that there is a fair trial. That is not the
responsibility of the jury. The jury’s responsibility is to
decide the facts based on the evidence.

My function is not to invade your responsibility and to
decide the facts for you. That is your job. But my job is
to insure in the first instance that this trial proceeded in
accordance with the rules of law in respect to fairness.

In doing that, ladies and gentlemen, I have to rule on
various motions, I have to rule on objections. I have to
make rulings as I understand the law to be.

I believe that in the course of this trial [2171] there
have been a number of times when motions for a mistrial
were made, and I have in every instance overruled those
motions because I am convinced that as a matter of law
there was no unfairness in this trial.

You have no more right as a juror to overrule and over-
see me in that regard than I have to oversee your finding
of the facts. That is what the legal process is for. That
is what it is all about.

I am here to attempt to interpret the law as I understand
it, and if an atmosphere in this courtroom has been created
so there is unfairness to a defendant in a case before me,
and if the jurors follows its function and applies tne law
to the facts that defines it and comes back with a verdict
of acquittal, then at that point the defendant obviously,
even though he has been affected by it hasn’t been adversely
affected.

On the other hand, if the jury comes back and applies
the law to the facts and comes back with a conviction, if
the atmosphere is such that there was unfairness, the case

9a

isn’t over. That is what Appellate Courts are for. The
Appellate Courts are here to supervise and to oversee me,
the Court, and to be certain that errors of law do not creep
in, and therefore no one is unduly and unfairly punished
because the judge, either by personal [2172] prejudices
or by whatever way, has made errors in the law.

But again, that is not the function of the jury. That is
the function of the Appellate Court in the event that the
facts and the application of the facts lead to a conviction.
If it doesn’t, then that is something else. Then we are
through with it. But if it leads to a conviction, then the
case isn’t over. The Appellate Courts are there to look at
this case and to oversee it and to make rulings in regard
to it, in regard to the fact whether or not there were errors
in the law.

We have to make certain that we all understand what
our oath is and what our function is in this process. It is
quite possible that as a Federal judge in the Federal Court
that I could comment on the evidence and I could indicate
to you—and it would be within the rules—as to each one of
these witnesses, by virtue of my commenting on the evi-
dence, I could give you some indication of how I felt about
the facts. But I never do that and don’t propose to do that
because even though I am allowed to do it, it would be in-
vading your function.

Now, what I want you to do is that you stick to your
function, you follow your oath, you fulfil [sic] your respon-
sibility, and don’t you invade my responsibility or my fune-
tion or the Court’s function.

[2173] I applaud the concern of the juror or jurors who
are concerned that our courts function and operate in a
way that there be fairness in the trial, but I want to assure
you that the way to do that and to insure fairness is not
for you to violate your oath. Even assuming that you are
correct, that somehow the Court didn’t fulfil its function
in regard to the supervision of this trial, the old saying is

10a

that two wrongs can’t make a right; you can’t correct it
by corrupting your oath. Your responsibility is not to vio-
late your oath.

Now, let me say one more thing, then I will move on.

We all have a purpose, and the jurors have a purpose,
and the jurors are picked as lay people because their role
is to concern themselves solely with the facts and to take
the law as the Court gives it to them. Counsel and the
Court have had a lifetime of training in the law. None of
you sitting there can make any rational decision as to
whether or not a judgment or a motion or a ruling of the
Court on a matter of law was correct or not because you
are uninformed. You don’t know what that is. Many of
you are in some profession of some kind, but I am not a
trained doctor or an engineer or an architect so that I
would be able to therefore tell you, those of you who
2174] are in that field, what your business is. I have to
accept the fact that you know what your business is, and
you are going to have to do that insofar as the Court is
concerned.

I am going to suggest that you continue your delibera-
tions, and I am going to suggest, as I indicated to you be-
fore, the purpose of jury deliberations is to talk things out.

When you first sat down I said to you I wanted you to
listen to all the evidence and to keep an open mind and
that you are to be hardheaded and make a hardheaded
analysis of the facts without favor or prejudice, but based
on your view of what the facts require, based upon the
instructions that I have given you.

Now, the case is an important case, as I told you before,
both to the Government and to the defense, and it is de-
sirable that if a verdict can be reached that it be done, and
that is so both from the point of view of the defendant and
from the point of view of the Government.

lla

As I understand this note—I can’t read between the lines
of the note, but as I understand this note—maybe I have
misjudged it—the import of the note, as I received it, is
that the juror has reached a conclusion that he or she can-
not exchange views or deliberate about the [2175] facts
and will not reach any conclusion about the facts for the
reasons I have stated, and they are not, let me suggest,
sound reason:

Your final vote must reflect your conscientious decision
as to how the issues are to be decided. But that conscien-
tious decision must be based upon the evidence in this
courtroom and upon the law as I stated it to you. If you
follow that process and apply it, then obviously you are
not to yield your convictions simply because you happen
to be outnumbered and outweighed.

This trial, as I told you yesterday, took some 12 days.
It was spread out over a period of four weeks. The fact
issues have been sharply delineated. The trial has been
expensive, and if you should fail to agree on a verdict, the
ease is left open and undecided, and like all cases it must
be disposed of at some time, and there appears to be abso-
lutely no reason to believe that another trial would not be
equally expensive, nor does there appear to be any reason
to believe that the case can be tried again more expertly
or more exhaustively or more earnestly than it has been on
either side.

Any future jury must be selected in the same manner as
you were and must be chosen from the source that you
were chosen from, so there doesn’t appear to be any [2176]
reason to believe that the case would ever be submitted to
12 jurors who are more intelligent, more impartial or more
competent to decide this case or that more or clearer evi-
dence could be produced on behalf of either side.

A trial of a ease represents enormous energy, but that

energy has gone primarily into an expenditure before the
trial. A trial is like surgery. The patient has been treated

12a

with deep therapy by the application of drugs and all kinds
of remedies short of surgery itself, and surgery may take
a couple of hours, but does that make it less important in
the whole process? Of course not .

This case has taken 12 days, but there has been a great
deal of time and effort before this case came into this
courtroom that was expended by lawyers, by lawyers for
the Government and for the defense before we even reached
this point.

Now, while undoubtedly the verdict of the jury should
represent the opinion of each individual juror, it by no
means follows that opinions may not be changed by con-
ference in the jury room.

The very object and purpose of the jury system is to
secure unanimity by comparison of views and by argument
among the jurors themselves.

It is normal, perfectly normal, absolutely [2177] normal
for the jurors to have differences, and frequently jurors,
after extended discussion, may find that a point of view
which originally represented a fair and considered judg-
ment might well vield upon the basis of argument and upon
the basis of further discussions and a further view of the
facts and the evidence.

Now, frequently further consideration may indicate that
a change of original attitude is fully justified upon the law
and the facts.

Now listen to what the Supreme Court of the United
States has said on this and I am now quoting:

Although the verdict must be the verdict of each
individual juror, they should listen with a disposition
to be convinced by each other’s argument, that if the
much larger number were for conviction, a dissenting
juror should consider whether his doubt was a reason-
able one which made no impression upon the minds of

13a

some men equally honest, equally intelligent as him-
self. If, upon the other hand, the majority were for
acquittal, the minority ought to ask themselves whether
they might not reasonably doubt the correctness of the
judgment which was not concurred in by the majority.“

Now, it cannot be that each juror should go [2178]
into the jury room with a blind determination that the
verdict shall represent his or her opinion of the case at
the particular time or that he should close his ears
to the argument of men and women who are equally
honest and intelligent as himself or herself and who
bear the same responsibility, serve under the same
sanction of the same oath and heard the same evi-
dence with, we may assume, the same attention and
with an equal desire to arrive at a fair and honest
determination.

Now remember that at all times no juror is expected to
yield a conscientious conviction that she or he may have
as to the weight or effect of the evidence, but remember
also that after full deliberation and a consideration of all
the evidence it is your duty to agree upon a verdict, if you
can do so without violating your individual judgment and
your conscience.

Now, consequently, I am going to ask you to retire to
the jury room and to continue your deliberations. Care-
fully reexamine and reconsider all the evidence bearing
upon the questions before you. And that consideration,
ladies and gentlemen, is to be limited, as your oath bound
you to, to an evaluation of the evidence and a determina-
tion of the facts based upon the law as I have stated it to
you.

All right, thank you.

14a

AMERICAN BAR ASSOCIATION PROJECT ON STAND-
ARDS FOR CRIMINAL JUSTICE, STANDARDS RELAT-
ING TO TRIAL BY JURY, §5.4 (APPROVED DRAFT
1968)

5.4 Length of deliberations ; deadlocked jury.

(a) Before the jury retires for deliberation, the court
may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must
agree thereto;

(ii) that jurors have a duty to consult with one
another and to deliberate with a view to reaching an
agreement, if it can be done without violence to indi-
vidual judgment;

(iii) that each juror must decide the case for him-
self, but only after an impartial consideration of the
evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror
should not hesitate to reexamine his own views and
change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest con-
viction as to the weight or effect of the evidence solely
because of the opinion of his fellow jurors, or for the
mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been un-
able to agree, the court may require the jury to continue
their deliberations and may give or repeat an instruction
as provided in subsection (a). The court shall not require
or threaten to require the jury to deliberate for an unrea-
sonable length of time or for unreasonable intervals.

(c) The jury may be discharged without having agreed
upon a verdict if it appears that there is no reasonable
probability of agreement.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1770%3A1. Public record. Not legal advice.