Petition — Stern v. United States

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IN THE

Supreme Court of the United States

SPRING TERM, 1977

: ¥6°1708

DONALD MARTIN STERN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

— *

» 4

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

+.

7

JAMES W. BURDICK

Burdick & McNeill, P.C.

Attorney for Petitioner

17117 West Nine Mile Road

Southfield, Michigan

Phone (313) 559-9550

Of Counsel

NEIL H. FINK

1500 Buhl Building

Detroit, Michigan 48226

Phone (313) 963-1700

Interstate Brief & Record Co., 1615 Abbott St.. Detroit. Michigan 48216

962-8745

TOPICAL INDEX

Page

IO 5 ck cations cd cugeds tatenetccveoes ses ii

ENED dick Gueasndhedsetns deka eneeeoeseuen’s 2

PE cntecgeunes tp osebes s6db sense dd oeesdes ca 2

I a oe ee ee eacae candame 2

PED cvcceccccccespevencccest cbeseudses's 3

ee ee Se ee er 15-30

Ill.

IV.

WHEN A DEFENDANT ESTABLISHES A

PRIMA FACIE CASE OF IMPERMISSIBLE

SELECTIVE PROSECUTION AND THE GOV-

ERNMENT FAILS TO PROVIDE A SATIS-

FACTORY EXPLANATION, THE INDICT-

MENT MUST BE DISMISSED DUE TO THIS

CONSTITUTIONAL IMPROPRIETY. ....... 15-22

IT IS ERROR TO SUBMIT A CASE TO THE

JURY WHEN THE EVIDENCE AT MOST ES-

TABLISHES NO MORE THAN A CHOICE OF

REASONABLE PROBABILITIES, ONE CRIM-

INAL AND THE OTHER INNOCENT. ..... 22-26

THE GOVERNMENT'S ARGUMENT TO THE

JURY ON DEFENDANT'S FAILURE TO

PRODUCE CERTAIN PERSONS AS CHAR-

ACTER WITNESSES WAS AN IMPERMISSI-

BLE COMMENT ON HIS RIGHT TO REMAIN

SILENT AND AN ERRONEOUS ATTEMPT

TO SHIFT THE BURDEN OF PROOF TO HIM.

FAILURE OF THE TRIAL COURT TO IN-

STRUCT THE JURY AS TO DEFENDANT'S

THEORY OF THE CASE IS REVERSIBLE

EOFS TTT OTT TTCTTTITTCTeT TT Titre 27-28

V. IT IS ERROR FOR AN INDICTMENT NOT TO

CONTAIN THE CITATION OF PERTINENT

AND NECESSARY REGULATIONS WHICH

PROSCRIBE THE CONDUCT ALLEGED

Page

Es vn ccdivstocaccuccecdsestsvewnnte 28-30

PIES okn c seccnccesatndccteeschavesathaks 30

Appendix

PEED cdccccccsbatoaccdchadws cuauesheousean 31

BSED ovo csddingnsscvcncesceneepecosceoet cost 32-34

Opinion Denying Motion to Dismiss ............... 34-40

Order Granting Motion for Acquittal ................-. 41

Order Dismissing Motion for New Trial .............. 42

TN GRIN ok ckeecccccscunseciscccedes 43-51

Order Affirming Judgment of the District Court ..... 52-54

TABLE OF AUTHORITIES

Cases:

Barnard v United States, 342 F2d 309 (9th Cir 1965) ...

Beaudine v United States, 368 F2d 417 (Sth Cir 1966) ..

Beck v United States, 305 F2d 595 (10th Cir 1962) cert

denied, 371 US 890, 83 S Ct 186, 9 L Ed 2d 123

EE ain 26:b6dGs oataadaded iudéaekseieus bas sotee

Bird v United States, 180 US 356, 21 S Ct 403, 45 L Ed

FREI ph vessrvcorinccsoscsecedathddoenetecsc

Bolling v Sharpe, 347 US 497, 74 S Ct 693, 98 L Ed 884

GUD oc viccvccvscccsccsvdvedovrsncdesetessdeness

24

23

27

ee ew

iii

Page

Browder v United States, 312 US 335, 61 S Ct 599, 85

pe aes. due o avec cabies dbawdetdes oo 23

Chapman v United States, 386 US 18, 87 S Ct 824, 17 L

ERIE Ca, <a RnR ee ne aE Pe 27

Furman v Georgia, 408 US 238, 92 S Ct 2726, 33 L Ed

ES Si petsSt re i oan os Uwieaemaneees 21

Griffin v California, 380 US 609, 85 S Ct 1229, 14 L Ed

ED -~ebUcta< chdvudadndbbakedeadncese< 26,27

Griego v United States, 298 F2d 845 (10th Cir 1962) ... 28

Haner v United States, 315 F2d 792 (Sth Cir 1963) .... 23

Jensen v United States, 403 F2d 1018 (9th Cir 1968) ... 24

Kaplan v United States, 329 F2d 561 (9th Cir 1964) .... 24

Lennon v United States, 387 F Supp 561 (S.D.N.Y.

34 ov < baltio plied sldudes cadens dhessewaesde <us 22

Levine v United Staies, 261 F2d 747 (D.C. Cir 1958) .. 27

Middleton v United States, 49 F2d 538 (8th Cir 1931) .. 27

Moss v Hornig, 314 F2d 89 (2d Cir 1963) ........... 21,22

Olyer v Boles, 368 US 448, 82 S Ct 501, 7 L Ed 2d 446

a ee ea be 21

Perez v United States, 297 F2d 12 (Sth Cir 1961) ...... 27

Pierce v United States, 86 F2d 949 (6th Cir 1936) ..... 27

Rosen v United States, 161 US 29, 16 S Ct 434, 40 L

ESET SS ar oe ee 23

Russell v United States, 369 US 749, 82 S Ct 1038, 8 L

ee ee ane Esenecee 30

Screws v United States, 325 US 91, 65 S Ct 1031, 89 L

PE s.vidus shectseatessteobveccebesees 23

iv

Page

Shevlin - Carpenter Co v Minnesota, 218 US 57, 30

S Ce G63, 34 1, BS SOO IGT dc ccc cdovtesvesvcees 25

Shock v Tester, 230 F2d 935 (6th Cir 1956) ........... 16

Smith v United States, 230 F2d 935 (6th Cir 1956) ..... 28

Snowden v Hughes, 321 US 1, 64 S Ct 397, 88 L Ed

GP CIRO ok. os cccdvsecddss'eseseeeneeeeeeee 21

Standard Oil Company of Texas v United States, 307

P26 220 Gi Ge TEED iv ncdéocvctesssccstupeserts 23

Stamler v Willis, 415 F2d 1365 (7th Cir 1969), cert

denied sub nom, Ichard v Stamler, 399 US 929, 90

S Ct 2231, 26 L Ed 2d 796 (1970) ............-00-- 21

Strass v United States, 376 F2d 416 (Sth Cir 1967) ..... 28

Tatum v United States, 190 F2d 612 (D.C. Cir 1950) ... 28

Two Guys from Harrison-Alientown, Inc. v McGinley,

366 US 582, 81 S Ct 1135, 6 L Ed 2d 551 (1961) .... 16

United States v Berrios, 501 F 2d 1207 (2nd Cir 1974) . 17

United States v Bishop, 412 US 346, 93 S Ct 2008, 38 L

BS 26 S41 (ISTE) 2. ncccccccccccvscvccceecsesseses 23

United States v Cohn, 270 US 339, 46 S Ct 251, 70 L

BS GOS (ITSR on cccccccccvisecdesectsaceusseusenss 23

United States v Costello, 275 F2d 355 (2d Cir 1960),

aff'd 365 US 265, 81 S Ct 534, 5 L Ed 2d 551 (1961) 23

United States v Crowthers, 456 F2d 1074 (4th Cir 1972) 16

United States v Delay, 440 F2d 566 (7th Cir 1971) ..... 26

United States v De Sapio, 299 F Supp 436 (S.D. N.Y.

TOD vccccccscccscubsesestessneaneesuaeneean > @

United States v Falk, 479 F2d 616 (7th Cir en banc

FED cevcéewscsevesésenceent} nee 15,20,22

ee a een cee

Page

United States v Garcia, 452 F2d 419 (Sth Cir 1971) .... 28

United States v Henderson, 386 F Supp 1048 (S.D.N.Y.

eh ih RITE. Jt ce cou chu's ook oubace é¥ coeanes 17

United States v Indian Trailer Corp., 226 F2d 595 (7th

en ed us sees vceveeces 27

United States v Industrial Laboratories Co., 456 F2d

le oe cc ebéccvocedocece 23

United States v Krosky, 418 F2d 65 (6th Cir 1969) .... 23

United States v Leon, 534 F2d 667 (6th Cir 1976) ..... 26

United States v Lepowitch, 318 US 702, 63 S Ct 914,

EE 23

United States v Porter, 431 F2d 7 (9th Cir 1970), cert

denied, 400 US 960, 91 S Ct 360, 27 L Ed 2d 269

Ps ccncuseoesnddect ee cdeshebbb sutton se 23,25

United States v Robinson, 311 F Supp 1063 (W.D. Mo

EE a 16

United States v Sacco, 428 F2d 264 (9th Cir 1970), cert

denied, 400 US 903, 91 S Ct 141, 27 L Ed 2d 140

(1970), reh denied 401 US 926, 91 S Ct 864, 27 L Ed

EC Ciba ad daTG ee 6 duet veccedtboceeves 23,25

United States v Saunders, 325 F2d 840 (6th Cir 1964),

cert denied, 379 US 978, 85 S Ct 677, 13 L Ed 2d

EEE Es ee 26

United States v Smith, 500 F2d 293 (6th Cir 1974) ..... 27

United States v Swanson, 509 F2d 1205 (8th Cir 1975) . 17

United States v Steele, 461 F2d 1148 (9h Cir 1972) .... 19

United States v Thompson, 366 F2d 167 (6th Cir 1966)

cert denied, 385 US 973, 87 S Ct 512, 17 L Ed 2d

ES EE 23

vi

Page

United States v Young, 464 F2d 160 (Sth Cir 1972) .... 28

United States v Yingling, 368 F Supp 379 (W.D. Pa

SUOUD ov tsb eceedewdsehevncsdcdes eG bsdcncdssoes 22

Volkmoor v United States, 13 F2d 594 (6th Cir 1926) .. 27

Webb v United States, 369 F2d 530 (Sth Cir 1966) ..... 29

Washington v United States, 401 F2d 915 (D.C. Cir

TE Wan dcdcentavvidsdedies és cbmens @itessecess 15

Yick Wo v Hopkins, 118 US 356, 6 S Ct 1064, 30 L Ed

SGU 0-0 6c cwbocdhiuscpbes dodecdcdtcedeictuce 16

Statutes:

SR ee OEP ccsins ¢ndetdedsscetitniens sedhomered 1,22

WP is BEG aches ctnvigdds ctbbabs ebb s dues s cas 29

Ps I nik de pans knedikh en ek take tn ddhoeime 29

Se Ds UE Boa cvdiwibddsulcdscthddstcheaees 2

Federal Rules of Criminal Procedure:

Rule 7, Title 18, United States Code ........... pI 29

Rule 12, Title 18, United States Code ................ 30

Supreme Court of the United States

SPRING TERM, 1977

—_— *

-

DONALD MARTIN STERN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

— <

A

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—

. 4

NOW COMES the Petitioner, DONALD MARTIN

STERN, by his attorneys, JAMES W. BURDICK and

NEIL H. FINK, and respectfully Petitions this

Honorable Court for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit to review

the decision of said Court affirming his conviction of

fraudulent and knowing failure to manifest or declare

merchandise, or failure to declare all articles brought into

the United States, in violation of 18 U.S.C. §545, to

consider the important legal issues contained herein.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Sixth Circuit was decided and filed May 4, 1977. The

Order and Memorandum Opinion of the United States

District Court for the Eastern District of Michigan,

Gubow, Jr., were filed on January 15, 1976. These

documents are reprinted in full in the Appendix hereto.

JURISDICTION

The Opinion of the United States Court of Appeals for

the Sixth Circuit was filed May 4, 1977. The jurisdiction

of this Court is invoked under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

B.

WHEN A DEFENDANT ESTABLISHES A PRIMA

FACIE CASE OF IMPERMISSIBLE SELECTIVE

PROSECUTION AND THE GOVERNMENT FAILS

TO PROVIDE A SATISFACTORY EXPLANATION,

MUST THE INDICTMENT BE DISMISSED DUE TO

THIS CONSTITUTIONAL IMPROPRIETY?

Il.

IS IT ERROR TO SUBMIT A CASE TO THE JURY

WHEN THE EVIDENCE AT MOST ESTABLISHES

NO MORE THAN A CHOICE OF REASONABLE

PROBABILITIES, ONE CRIMINAL AND THE

OTHER INNOCENT?

III.

WAS THE GOVERNMENT’S ARGUMENT TO THE

JURY ON DEFENDANT'S FAILURE TO PRODUCE

CERTAIN PERSONS AS CHARACTER WITNESSES

AN IMPERMISSIBLE COMMENT ON HIS RIGHT TO

REMAIN SILENT AND AN ERRONEOUS ATTEMPT

TO SHIFT THE BURDEN -OF PROOF TO HIM?

IV.

IS FAILURE OF THE TRIAL COURT TO INSTRUCT

THE JURY AS TO DEFENDANT’S THEORY OF THE

CASE REVERSIBLE ERROR?

V.

IS IT ERROR FOR AN INDICTMENT NOT TO CON-

TAIN THE CITATION OF PERTINENT AND

NECESSARY REGULAIIONS WHICH PROSCRIBE

THE CONDUCT ALLEGED THEREIN?

STATEMENT OF FACTS

The Petitioner, DONALD MARTIN STERN, was

charged in a three-count Indictment with failing to mani-

fest or declare merchandise carried into the United States

or failure to declare all articles brought into the United

States and two counts of attempting to introduce into the

commerce of the United States imported merchandise

by means of a knowingly false and fradulent

4

declaration to a United States Customs Inspector. After a

trial by jury before the Honorable Lawrence Gubow, Mr.

Stern was found guilty of the first count (Trial Transcript’

VI 105) and sentenced to a two-year probationary period.

As a result of a pretrial defense motion, an evidentiary

hearing was held on the issue of whether the within

prosecution was selectively discriminatory and violated

your Petitioner’s right to equal protection of the law as

guaranteed by the United States Constitution. The thrust

of this motion was to dismiss the instant Indictment on

the basis of the aforementioned constitutional

impropriety.

The evidence presented at this hearing indicated

Clifford Best, a Special Agent of the Bureau of Customs

(Evidentiary Hearing Transcript? 7), placed the Defendant

under arrest for the offenses alleged in the Indictment.

(EHT 48). However, this was not the first confrontation

of Messrs. Stern and Best.

Agent Best had, on prior occasions, investigated the

Petitioner, a customs house broker, for ‘‘several

months,’’ (EHT 10) and in fact, personally spent five

hundred hours on that case (EHT 13). Nevertheless,

neither criminal indictment nor license revocation

proceedings were ever instituted as a result of the

investigation. (EHT 14).

Yet, Mr. Best was of the opinion Donald Stern was

“not a very good’’ customs house broker (EHT 14). In

addition, he felt Appellant’s company was ‘‘operating in a

manner completely. .. against all customs’ regulations,

' “*Trial Transcript’’ will hereafter be referred to as **TT.””

2 “*Evidentiary Hearing Transcript’’ will hereafter be referred to as

“ENT.”

5

against the custom regulations that pertain to custom

house brokers. . ."” (EHT 15). Furthermore, these beliefs,

and your Defendant’s identity, were placed on the

Bureau’s CADPIN machine, a computer network which

reflects warrants and suspects.* (EHT 36, 37). Incredibly,

however, entries are made only when ‘‘a violation

occurs.’ (EHT 37).

Moreover, Speciai Agent Best’s methodology in the

prior investigation was questioned (EHT 40-42, 154-155).

Complaints by Mr. Stern and his attorney resulted in the

agent being admonished by his superiors (EHT 154).

On the pertinent evening, Agent Best was not on duty

(EHT 20), but rather, was socially visiting a co-worker

(EHT 35). Even though there were thirty other Special

Agents with the Customs Department in Metropolitan

Detroit (EHT 79, 155), it was determined Mr. Best should

be brought in because he ‘“‘understands Mr. Stern.”

(EHT 79).

Prior to the arrival of Clifford Best, the supervisory

customs inspector, William Rearick, had decided to

proceed against the Petitioner administratively (EHT

114). This decision was made after other sanctions were

considered and rejected (EHT 114, 116). Accordingly, he

was fined (EHT 52), a duty imposed (EHT 115) and his

‘xmobile seized (EHT 116).

. fact, Mr. Rearick never considered Donald Stern’s

action cons’: uted a criminal violation because such cases

are routinely handled administratively (EHT 116). The

inspector, in arriving at this decision, applied the

standards ‘‘as set forth by the Chief Inspector’s Office.”’

(EHT 117). The propriety of Mr. Rearick’s actions were

never questioned by his superiors (EHT 119-120).

3 Mr. Best also felt it necessary to inform an associate he had

uncovered ‘‘several violations.’’ (EHT 77)

6

Furthermore, the inspector, with twelve years of

experience (EHT 116), did not know (EHT i116), or ever

heard of (EHT 117), an instance where merchandise, not

involving weapons or narcotics, was brought in without a

proper declaration and was not handled administratively.

In fact, the government could produce only three cases in

the preceding seventeen years where a criminal

prosecution was instituted (EHT 144-145, 192).*

Nonetheless, when Special Agent Best arrived it was

decided Donald Martin Stern would be arrested (EHT

49-50).5 In addition, Mr. Best determined it was

necessary for your Petitioner to spend the night in the

Wayne County Jail and transported him there in

handcuffs. (EHT 50). Incredibly, this occurred even

though persons accused of certain narcotics offenses are

routinely released on their own personal recognizance.

(EHT 164-165).

* One case involved jewelry concealed on the person inside an

undergarment (EHT 144) and was subsequently dismissed (EHT 144).

The other two instances involved whiskey: one accused was a

notorious gambler (EHT 148) and the other had a long criminal record

(EHT 149). This prosecution was justified because the person had

been apprehended on three prior occasions ‘‘for the same type of

offense."’ (EHT 161).

*> Scott Eshelman, a Special Agent of the Bureau of Customs (EHT

73) who was involved in this matter, testified that since he had been

so employed, he did not know, or even heard of another case *‘where

something like seven hundred or seven hundred fifty dollars was

involved and where receipts were presented for all of the merchandise

[personal goods — not weapons or narcotics] where the man has been

subjected, number one, to a forfeiture of the goods and number two,

to a penalty in the full amount and number three, to a seizure of the

automobile and an arrest."’ (EHT 103-104) In fact, he admitted never

seeing ‘anything like this."’ (EHT 104).

SS

7

This decision was made with the knowledge Mr. Stern

had never been in jail before, (EHT 50, 61) that this

particular jail was notorious for fights, stolen property

and sexual molestations (EHT 50, 61) and in spite of his

attorney’s assurances he would present him to the proper

authorities the following morning (EHT 45). Moreover,

Mr. Best deemed it necessary to inform

Defendant-Appellant he was going to ‘‘a rough place.”’

(EHT 50).

Furthermore, when Harvey Tennen, an attorney and

former judge, attempted to intervene in relation to the

decision to incarcerate Mr. Stern, he was informed the

Defendant ‘‘was a special person to the Customs

Department’’ (EHT 135) and this was being done to teach

him a lesson. (EHT 135). In addition, Judge Tennen was

told this was not being done because Donald Stern was

Jewish. (EHT 136)®.

Moreover, when Agent Best met with Petitioner the

following morning, he felt compelled to tell ‘“‘Mr. Stern,

you probably feel that what is happening to you is

because you are Jewish. But let me assure you that it is

not.’’ (EHT 58). Needless to say, such a statement is an

unusual occurrence in the Customs Department. (EHT

97).

At the conclusion of said evidentiary hearing, the Court

denied Defendant’s Motion to Dismiss the Indictment.

(EHT 127). In doing so, it made some crucial findings of

fact.

[The Defendant] is charged with importing cer-

tain merchandise without properly declaring it.

® Agent Best admitted he spoke with Mr. Tennen. (EHT 129).

8

The merchandise in question is harmless,

consisting of toys, antiques, china and clothing.

Had he properly declared these items, the duty

owing would have amounted to $68.00. The

defendant does not have a prior criminal record.

In all previous similar circumstances involving

other such offenders, the Customs Department

has proceeded administratively without result in

criminal prosecution. Administrative action has

also been taken against Mr. Stern to the extent of

a one hundred percent penalty and the seizure of

this automobile.

I might point out that it is not clear to the

Court, even after hearing the testimony, exactly

why in this case a criminal prosecution was also

brought. One possible explanation is that Special

Agent Clifford Best, who played a principal role in

executing the arrest and in seeking criminal

sanctions against the defendant, had developed a

personal dislike for defendant stemming from an

extensive investigation conducted by Best into the

defendant’s operation as a Customs broker.

Notwithstanding Best’s efforts, no action had

been taken against the defendant at the time and I

believe even to this time, to Best’s obvious

disappointment.

Best’s personal feelings toward the defendant-

were reflected in the unnecessarily harsh

treatment meeted (sic) out to the defendant at the

apparent initiative of Best immediately following

his arrest. For in spite of a clean prior record and

notwithstanding his obviously deep roots in the

community which were known to Best and the

9

other Agents involved, the defendant was

incarcerated over night in the Wayne County Jail.

Even the vigorous efforts of Mr. Rosenthal,

defendant’s attorney, to secure defendant's

release on board were to no avail until the

following morning.

Now, this is in shocking contrast to the usual

treatment of arrested violators. There was

testimony that even some [individuals] charged

with smuggling narcotics are not incarcerated. No

adequate or even candid explanation was offered

by Government witnesses for the special

treatment of the defendant in this regard.

To the extent that the animosity of Agent Best

toward defendant might explain the Government's

decision to proceed against him, this prosecution,

in the opinion of the Court, from what it has

heard, must certainly be regarded as a monument

to misguided zeal and bad judgment.

* * *

I suggest that at the very least, the Customs

Department policy which permitted and condoned

the harsh post-arrest treatment of the defendant

should be examined and reformed. I say this

because of what I heard from the witness stand in

the course of this hearing. For example, I have

never heard such equivocation of testimony,

especially from Agents of a Federal Agency.

10

What I’m referring to is this: First, the hesitation

on the part of the witnesses to answer many of

the questions; two, the evasive answers; and at

least twice, Agent Best answered that he couldn’t

figure out what the attorney was getting at. In

both of those cases, the Court had to admonish

and warn him that it was not for him to figure out

what the. attorney was getting at but to answer the

question. Thirdly, the testimony with regard to the

file in this case. Agent Best first said it was in his

office and then when the Court indicated it would

call a recess to allow him to get the file so that it

could be reviewed in camera, he said it was on

the table. I can’t conceive of an Agent bringing a

file over for a hearing, putting it on counsel table

and then a few minutes later saying it is in his

office. Four, the testimony by Mr. Best that a

felony was committed in his presence when he

was Called there after the defendant had been

stopped by the Agents at the Tunnel. Five, Agent

Best’s testimony and the evidence presented

relative to his remarks about an attorney. Six,

Agent Best’s testimony about his statement to Mr.

Stern relative to the fact that, “‘You probably

think I’m doing this because you are Jewish, but

that isn’t so,’’ or remarks to that effect. In the

opinion of the Court, this is like the usually used

statement, “‘Some of my best friends are Jewish.”’

Even Mr. Harnisch, in his closing argument,

stated, and I quote, ‘“‘Mr. Best made a statement

which bothers me and should bother the Court, a

statement which was improper and out of order.”’

Seven, the fact that Mr. Eshelman, in the car at

the time that the statement admitted by Mr. Best

was made, heard so many things but didn’t hear

this statement. Eight, the testimony of Mr. Liming

relative to the practice of arresting a person at the

Tunnel or Bridge for such a violation in light of

Mr. Rearick’s testimony that in twelve years with

Customs, he has never seen this happen, and the

answer based on what I’m sure was a thorough

search of their files and yet they could come up

with only three arrests in the past seventeen

years. And, lastly, the fact that the Assistant U.S.

Attorney, Mr. Harnisch, at the request of the

Agents, I’m sure, requested that the Agents be

excused because there was so much work to be

done and they needed to be allowed to leave so

they could attend to their duties; yet despite this

request which the Court granted, one Agent

remained in the courtroom and one in the hallway.

(EHT 210-215).

At the trial below, the testimony indicated Donald

Martin Stern was in the ‘‘auto-line’’ or ‘‘Primary

Inspection’’ of the Detroit-Windsor Tunnel on November

12, 1972, at approximately 4:15 P.M. (TT I 74-75). The

Defendant and his wife were returning from a four-day

vacation at Toronto, Canada. (TT IV 58-59).

The inspection lanes at this time were congested (TT

IV 73) and it was raining (TT IV 73). The intemperate

weather increased the extreme pain concomitant with an

eye-injury Mr. Stern received while in the military and

for which he was under medication. (TT IV 60, 7-71, 73).

While waiting in line, your Petitioner was listening to a

football game on his car radio. (TT IV 59, 73, 89).

12

When the Stearns reached the customs inspector,

inquiries were made as to their citizenship and point of

departure. (TT I 76; IV 61, 73). The Defendant noticed

the inspector staring at his Swiss-made watch, which had

an unusual movement. (TT IV 73, 85, 86, 88).

Donald Stern thought he was next asked if he had

anything else ‘‘from Canada to declare’’ (TT IV 73; V 4)

and responded ‘‘nothing.’” (TT 176; IV 61, 74). His

interjected ‘‘Nothing?’’ (TT IV 74). Realizing that he

‘either misunderstood [the] question or something,’’? (TT

IV 74; V 4), he started to make a declaration (TT I 78; IV

61, 74; V 7), but was interrupted by a request to exit the

vehicle. (TT IV 74).

Mr. Stern apologized and stated ‘‘I do have things to

declare from Canada. I have toys, clothing and

miscellaneous antique items.’’ (TT IV 74; V 7). He then

honored instructions to open his trunk. (TT I 78-79; IV

61, 74-75). Inside, the inspector clearly saw ‘‘clothing.

bags, paper sacks, merchandise.’’ (TT I 79, 101, 105, 106;

IT 22).

Petitioner was subsequently sent to ‘‘Secondary

Inspection.”’ (TT I 80; IV 64, 75). There he was asked

‘‘What do you have to declare?”’ (TT II 8; 65, 76) and

Mr. Stern responded that he had toys and clothing.* (TT

IV 65, 76). Again his wife interjected, *‘Donald, ana

* Although the inspector believed the question was *‘What are you

bringing back from Canada?’’, he stated the question might have been

‘‘whether he had anything to declare other than from Canada?”’ (TT I

83)

* The inspector stated the response was ‘toys and other things.’

(TT Il 17)

13

antiques’’ (TT IV 65, 76) and he immediately stated

‘**And antiques.’’ (TT IV 65, 76).

Donals Stern was then questioned as to the value of

this merchandise (TT II 8; IV 76) and he responded with

an ‘‘approximate figure’’® (TT IV 76) of ‘‘about $500.00.”’

(TT Il 8, 17, 20). There were several bills and your

Defendant had not been given an opportunity to precisely

calculate them. (TT IV 66).

After presenting all his receipts to the customs

inspector (TT II 9; IV 42, 78), Mr. Stern was informed

the total was $924.00. (TT IV 42, 78). He responded that

this figure was ‘‘Impossible’’ (TT IV 42, 78) and a

recalculation established an error had been committed

and the amount was $136.00 less. (TT IV 42, 78).

Asked about the validity of this second figure (TT IV

43, 78), Petitioner indicated ‘‘You have the adding

machine in front of you. If you say they add up to 700

and some odd dollars, I'm not going to dispute you. |

gave you an approximate evaluation and | presented all

the bills to you for that purpose.’’ (TT IV 78). An

amended declaration was accepted (TT IV 46-47, 55, 81)

and a duty of $68.00 was calculated.'® (TT IV 68).

The evidence presented at trial also established your

Petitioner was a married man (TT IV 58) with three

young daughters (TT IV 57-58), as well as an Air Force

veteran of the Korean War. (TT IV 70-71). He holds a

* The inspector believed this declaration was an estimation. (TT II

20).

‘© Some of the items were, in fact, duty-free. (TT IV 50).

14

customs house broker’s license (TT IV 72) and has

authority to deal with various governmental agencies (TT

IV 72). In addition, Mr. Stern has no prior criminal

record. (TT IV 72). 7

Moreover, Donald Stern frequently traveled to Canada

(TT IV 69) and knew there was a reasonable possibility

his car would be searched (TT IV 69). In fact, he had

been ‘‘examined”’ on several prior occasions. (TT IV 94).

Furthermore, Mr. Stern was of the belief the Bureau of

Customs was conducting ‘“‘more and more’’ searches as a

result of increased narcotics trafficking (TT IV 95-96).

Also, due to the season and Great Lakes’ shipping

schedule, his chances of being examined were greater

(TT IV 96). Significantly, your Petitioner felt that if he

acted contrary to the customs laws, he would lose his

license and livelihood. (TT IV 82; V 23, 25).

At the conclusion of the government’s case-in-chief,

the Defense made a motion for a directed verdict. (TT II

5:1-53). It was granted as to Counts 2 and 3 (TT II 73),

but denied as to the first count. (TT II 71). In addition, a

defense motion to dismiss Count I pursuant to Rule 12 (b)

(2) of the Federal Rules of Criminal Procedure (TT III 3)

was denied. (TT IV 3-9).

The Defendant renewed his motion for a judgment of

acquittal at the conclusion of his case (TT V 32) and

again after the government’s rebuttal (TT VI 19).

However, the court denied both motions. (TT V 37; VI

19).

During closing arguments, the Assistant United States

Attorney twice asked the jury to consider why the

Defendant did not present additional, and different types

of, character witnesses. (TT VI 40. 78). The second time

15

this contention was made the defense attorney objected

(TT VI 78) and moved for a mistrial (TT VI 82). This

motion was subsequently denied. (TT VI 83).

In addition, defense counsel objected to the Court's

failure to instruct the jury on the Defendant's theory of

the case (TT VI 102), which was submitted to the Court

in Defendant’s Request to Charge Number 1. (See

Appendix). Moreover, the Court denied Defendant's

renewed Motion to Dismiss, based on selective

prosecution (See Appendix), as well as his Motion for

New Trial (See Appendix).

ARGUMENT

I. WHEN A DEFENDANT ESTABLISHES A PRIMA

FACIE CASE OF IMPERMISSIBLE SELECTIVE

PROSECUTION AND THE GOVERNMENT FAILS

TO PROVIDE A SATISFACTORY EXPLANA-

TION, THE INDICTMENT MUST BE DISMISSED

DUE TO THIS CONSTITUTIONAL IMPRO-

PRIETY.

The Fourteenth Amendment to the United States

Constitution prohibits a state from taking action which

would ‘‘deny to any person within its jurisdiction the

equal protection of the laws.’’ This admonition is

applicable to the federal government through the Fifth

Amendment. Bolling v Sharpe, 347 US 497, 74 S Ct 693,

98 LEd 884 (1954); Washington v United States, 401 F2d

915 (D.C. Cir 1968).

The guarantee of equal protection of the laws is “‘not

limited to the enactment of fair and impartial legislation,

but necessarily extends to the application of these laws.”

United States v Falk, 479 F2d 616, 618 (7th Cir en banc

1973).

16

Though the law itself be fair on its face and

impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye

and an unequal hand, so as practically to make

unjust and illegal discrimination between persons

in similar circumstances, material to their rights,

to denial of equal justice is still within the

prohibition of the Constitution. Yick Wo v

Hopkins, 118 US 356, 373-374, 6 S Ct 1064, 30

LEd 220 (1886).'' See also, United States v

Robinson, 311 FSupp 1063 (W.D. Mo. 1969).

To support a defense of selective or discriminatory

prosecution, the defendant must, prima facie, establish

the following:

(1) that, while others similarly situated have

not generally been proceeded against because of

conduct of the type forming the basis of the

charge against him, he has been singled out for

prosecution, and (2) that the government’s

discriminatory selection of him for prosecution

has been invidious or in bad faith, i.e., based

upon such impermissible considerations as race,

religion, or the exercise of constitutional rights.

't In Yick Wo, a city licensing ordinance, though on its face a fair

and reasonable exercise of police power was principally utilized to the

detriment of Chinese. The case was concerned with an abuse of

discretion in the administration of the ordinance by the governing

board, and not with the activities of law enforcement officials who

apparently prosecuted all Chinese who violated the commands of the

board. The underlying principle has nevertheless been properly held to

apply to the actions of prosecutors and police officials. Two Guys

from Harrison-Allentown, inc. v McGinley, 366 US 582, 81 S Ct 1135,

6 LEd 2d 551 (1961); United States v Crowthers , 456 F2d 1074 (4th Cir

1972); Shock v Tester, 230 F2d 935 (6th Cir 1956).

17

These two essential elements are sometimes

referred to as ‘‘intentional and purposeful

discrimination.’’ United States v Berrios, 501 F2d

1207, 1211 (2d Cir 1974). See also, United States v

Swanson, 507 F2d 1205 (8th Cir 1975); United

States v Henderson, 386 FSupp 1048 (S.D. N.Y.

1974).

Applying these legal maxims to the appeal at bar, it is

quite apparent your Petitioner satisfied this burden of

proof. After an evidentiary hearing on this issue, the

Court below adroitly concluded ‘‘[i]Jn all previous

circumstances. . .the Customs Department has proceeded

administratively without result in criminal prosecution.”’

(EHT 210)'?

More specifically, William Rearick, a supervisory

customs inspector (EHT 108) with twelve years of

experience (EHT 116), testified he had never seen an

instance where ‘‘harmless’’ merchandise (EHT 210) was

involved and not handled in an administrative fashion.

(EHT 116-117, 215). Furthermore, after ‘‘a thorough

search of their files,"’ (EHT 215) the government could

only produce three cases in the preceding seventeen

years where a criminal prosecution was instituted. (EHT

144-145, 192, 215).

It should be noted that the facts and circumstances

surrounding these three prosecutions differ significantly

from the one at bar. Two instances involved whiskey:

one defendant was a notorious gambler (EHT 148) and

'2 In fact, administrative action was also taken against Mr. Stern

to the extent of a one hundred percent penalty and the seizure of this

automobile. (EHT 52, 115, 116, 210).

the other had a long criminal record (EHT 149). This

prosecution was justified because the person had been

apprehended on three prior occasions ‘‘for the same type

of offense.” (EHT 161). However, in the instant matter,

Donald Martin Stern had no prior criminal record. (EHT

211; TT IV 72)

Moreover, the third case involved jewelry which was

intentionally concealed on the person inside an

undergarment.'* (EHT 144). However, the merchandise

herein was clearly displayed in the trunk; there were no

blankets or other objects present to obstruct the view nor

any indicia of an intent to conceal (TT I 79, 101, 105,

106; II 22).

Furthermore, it was initially decided to proceed against

your Petitioner in an administrative fashion (EHT 114).

This decision was made after other sanctions were

considered and rejected (EHT 114, 116) and was arrived

at by applying the standards ‘‘as set forth by the Chief

Inspector’s Office.’ (EHT 117).

Nonetheless, when Special Agent Clifford Best arrived

it was decided Mr. Stern would be arrested. (EHT

49-50).'* ‘‘One possible explanation,’’ the Court below

concluded for this course of conduct, was that ‘‘Agent

Best, who played a principal role in executing the arrest

and in seeking criminal sanctions against the defendant,

had developed a personal dislike for defendant stemming

from an extensive investigation conducted by Best into

defendant’s operation as a Customs broker. Not-

‘8 This prosecution was subsequently dismissed. (EHT 144).

'* See Footnote 5, supra.

19

withstanding Best’s efforts, no action had been taken

against the defendant. ..to Best’s obvious disap-

pointment.’’ (EHT 210).

Moreover, ‘*in shocking contrast to the usual treatment

of arrested violators,"’ (EHT 211) Donald Martin Stern

was handcuffed and incarcerated in the Wayne County

Jail (EHT 50, 211). Incredibly, this occurred even though

persons accused of certain narcotics offenses were

routinely released on their own personal recognizance

(EHT 164-165). Significantiy, ‘‘[nJo adequate or even

candid explanation was offered by Government witnesses

for the special treatment of the defendant in this regard.”’

(EHT 211).

In addition, the testimony indicated your Defendant

‘‘Was a special person to the Customs Department”’

(EHT 135) and the ‘‘unusual’’ treatment he received was

being done to teach him a lesson (EHT 135). This

conduct is attributabie, in no small part, to the reprimand

Agent Best received as a result of the complaints made

by Mr. Stern and his attorney for the unorthodox manner

in which he was conducting the previous investigation.'®

(EHT 40-42, 154-155).

Furthermore, on at least two occasions, Clifford Best

felt obligated to explain the ‘‘special’’ treatment accorded

your Petitioner was not a result of his being Jewish (EHT

'S ‘An enforcement procedure that focuses upon the vocal

offender is inherently suspect, since it is vulnerable to the charge that

those chosen for prosecution are being punished for their [exercise of]

a constitutionally protected right."’ United States v Steele, 461 F2d

1148, 1152 (9th Cir 1972). See also, United States v Falk, supra.

20

58, 136). These statements were unprovoked and their

import so obvious no explanation need be provided.'®

Accordingly, it is evident Donald Martin Stern carried

his burden and established that he was discriminatorily

selected for criminal prosecution and that this decision

was invidious, intentional and based on the impermissible

considerations herein described. Therefore, the burden of

‘going forward with proof of non-discrimination’’ now

shifts to the government. United States v Falk, supra,

479 F2d at 624. An examination of the proceedings below

indicate the record is completely barren of a proper,

non-discriminatory basis for the prosecution at bar.

The trial court concluded ‘‘that it is not clear . . . even

after hearing the testimony, exactly why in this case a

criminal prosecution was ... brought.’’ (EHT 210). In

addition, it was of the opinion that ‘“‘this prosecution . . .

must certainly be regarded as a monument to misguided

zeal and bad judgment.’’ (EHT 211).

Although the government argued the case at bar

occurred as a result of prosecutorial discretion (EHT 3),

the courts have stated this ‘‘answer will simply not

suffice.’* United States v Steele, supra, 461 F2d at 1152.

Rather, they examine the underlying circumstances

surrounding the decision to prosecute because ‘‘{t]he

judiciary has always borne the basic responsibility for

'6 The making of such statements are not a usual occurrence in the

Customs Department (EHT 97). Even the Assistant United States

Attorney felt compelled to state “‘Mr. Best made a statement which

bothers me and should bother the Court, a statement which was

improper and out of order.’’ (EHT 215). In fact, the Court's disgust

with this remark was apparent in its opinion that it was ‘“‘like the

usually used statement, ‘Some of my best friends are Jewish’ *’ (EHT

214).

21

protecting individuals against unconstitutional invasions

of their rights by all branches of the Government.”

Stramler v Willis, 415 F2d 1365, 1369-1370 (7th Cir 1969);

cert denied sub nom. Ichard v Stamler, 399 US 929, 90S

Ct 2231, 26 LEd 2d 796 (1970).

While the government contends the instant prosecution

is proper under Olyer v Boles, 368 US 448, 456, 82 S Ct

501, 7 LEd 2d 446 (1962), that case merely held that the

selective enforcement of a criminal statute was not in

itself a constitutional violation unless ‘‘the selection was

deliberately based upon unjustifiable standard such as

race, religion, or other arbitrary classification.’’'’

Accordingly, Olyer ‘‘does,not preclude the granting of

relief if there is intentional or purposeful discrimination

against an individual.'* CF., Furman v Georgia, 408 US

238, 257, 293, 92 S Ct. 2726, 33 LEd 2d 346 (1972);

Snowden v Hughes, 321 US 1, 8, 64 S Ct. 397, 88 LEd

497 (1944).’’ United States v Yingling, 368 F Supp

‘7 In Olyer petitioner attacked the validity of a state habitual

offender criminal statute and its concomitant increased penalties.

However, unlike the instant appeal, there ‘“‘was no allegation by

petitioner of purposeful discrimination against him as an individual. It

was merely argued, from statistic, that more severe penalties were

sought in a minority of the multiple offender cases. This, it was

contended, denied equal protection to those persons against whom the

heavier penalty was enforced.’ Moss v Hornig, 314 F2d 89, 93 (2nd

Cir 1963).

18 The court in United States v Falk, supra, noted its ‘‘disapproval

of . . . simply dismissing all allegations of illegal discrimination in the

enforcement of criminal laws with a reference to Olyer v Boles, supra,

and its statement that the conscious exercise of some selectivity in the

enforcement of laws does not violate the Constitution. That correct

principle does not in many cases answer the question whether

selective enforcement in a given case is invidious discrimination which

cannot be reconciled with the principles of equal protection." /d at

624.

22

379 (W.D. Pa 1973). See also, United States v Falk,

supra; Moss v Hornig, 314 F2d 89 (2d Cir 1963).

Therefore, the government’s failure to satisfy the

burden and provide an adequate explanation must result

in the dismissal of the instant Indictment.

Nothing can corrode respect for a rule of law

more than the knowledge that the government

looks beyond the law itself to arbitrary

considerations, such as race, religion, or control

over the defendant’s exercise of his constitutional

rights, as the basis for determining its

applicabilit -. United States v Berrios, supra, 501

F2d at 1209. See also, Lennon v United States,

387 F Supp 561 (S.D. N.Y. 1975).

Il. IT IS ERROR TO SUBMIT A CASE TO THE

JURY WHEN THE EVIDENCE AT MOST ES-

TABLISHES NO MORE THAN A CHOICE OF

REASONABLE PROBABILITIES, ONE CRIMI-

NAL AND THE OTHER INNOCENT.

DONALD MARTIN STERN was found guilty, after

trial by jury, of fraudulent and knowing failure to

manifest or declare merchandise, or failure to declare all

articles brought into the United States, in violation of 18

USC §545 (TT VI 105). Petitioner submits the proofs

adduced below did not establish, with the degree of

certainty required for submission to the jury, that he

acted with the elemental specific intent and willfulness

mandated by the aforementioned criminal offense.

23

A declaration is fraudulent if made with an intent to

deceive. United States v Lepowitch, 318 US 702, 63 S Ct

914, 87 LEd 1091 (1943); United States v Cohn, 270 US

339, 46 S Ct 251, 70 LEd 616 (1926); United States v

Costello, 275 F2d 355 (2d Cir 1960), aff'd 365 US 265, 81

S Ct 534, 5 LEd 2d 551 (1961). In order to establish that

Petitioner acted with this state of mind, the government

must demonstrate he proceeded willfully,'® with the

specific intent?® to deceive, United States v Industrial

Laboratories Co., 456 F2d 908 (10th Cir 1972); Beaudine

v United States, 368 F2d 417 (Sth Cir 1966); United

States v Thompson, 366 F2d 167 (6th Cir 1966), cert

denied, 385 US 973, 87 S Ct 512, 17 LEd 2d 436 (1966);

Beck v United States, 305 F2d 595 (10th Cir 1962), cert

denied, 371 US 890, 83 S Ct 186, 9 LEd 2d 123 (1962),

and not as a result of mistake, accident or other innocent

reason. Screws v United States, 325 US 91, 65 S Ct 1031,

89 LEd 1495 (1945); Browder v United States, 312 US

335, 61 S Ct 599, 85 LEd 862 (1941); Standard Oil

Company of Texas v United States, 307 F2d 120 (Sth Cir

1962).

'® “An act is done ‘willfully’ if done voluntarily and intentionally,

and with the specific intent to do something the law forbids.”’ United

States v Krosky, 418 F2d 65, 67 (6th Cir 1969). See also, United

States v Bishop, 412 US 346, 93 S Ct 2008, 36 LEd 2d 941 (1973);

Rosen v United States, 161 US 29, 16 S Ct 434, 40 LEd 606 (1896);

Haner v United States, 315 F2d 792 (Sth Cir 1963).

2@ Specific intent means more than the general intent to commit

the act. To establish specific intent the government must prove that

the defendant **kaowingly failed to do an act which the law requires,

intending with evil motive or bad purpose either to disobey or

disregard the law."’ United States v Sacco, 428 F2d 264, 272 (9th Cir

1970), cert denied 400 US 903, 91 S Ct 141, 27 LEd 2d 140 (1970), reh

denied, 401 US 926, 91 S Ct 864, 27 LEd 2d 831 (1971); United States

v Porter, 431 F2d 7, 9 (9th Cir 1970) cert denied, 400 US 960, 91S Ct

360, 27 LEd 2d 269 (1971).

24

The evidence produced against Donald Martin Stern

was, in a very real sense, circumstantial in nature.

Although the actual transactions and statements at the

customs checkpoint were proven to have occurred, the

significance of these matters (i.e., Petitioner’s intent and

state of mind) must be ascertained circumstantially from

the surrounding facts and circumstance. To find Mr.

Stern guilty, the jury would have had to conclude,

beyond a reasonable doubt, that the proofs excluded

every reasonable theory except that of guilt. Jensen v

United States, 403 F2d 1018 (9th Cir 1968); Barnard v

United States, 342 F2d 309 (9th Cir 1965); Kaplan v

United States , 329 F2d 561 (9th Cir 1964).

At trial, the testimony indicated that when your

Petitioner reached the customs inspector, he was

suffering severe pain from his eye injury. (TT IV 60,

70-71, 73). In addition, the car radio was tuned to a

football game (TT IV 59, 73, 89). It is quite reasonable to

believe these factors, as well as the peculiarity of Mr.

Stern’s watch (TT IV 73, 85, 86, 88), lead to a

misunderstanding of the inspector’s question.?!

Moreover, as soon as he realized a mistake had been

made, Petitioner apologized and began to make a

declaration. (TT I78; IV 61, 74; V 7). In addition, the

merchandise was not secreted within the vehicle or

covered by other objects. Rather, it was clearly displayed

and immediately visible inside the trunk. (TT I 79, 101,

105, 106; II 22).

2! It is significant to note the inspector himself was not one

hundred percent sure of exactly what his question was. See Footnote

7, supra.

Sess

—sS oe

25

Furthermore, Donald Martin Stern frequently traveled

to Canada (TT— IV 69) and knew there was a reasonable

possibility his car would be searched (TT IV 69). In fact,

he had been ‘‘examined’’ on several prior occasions. (TT

IV 94).

Significantly, Mr. Stern was of the belief the Bureau of

Customs was conducting ‘‘more and more’’ searches as a

result of increased narcotics trafficking (TT IV 95-96).

Also, due to the season and the Great Lakes’ shipping

schedule, he felt his chances of being examined were

greater. (TT IV 96).

Your Petitioner also believed that if he acted contrary

to the customs laws, he would lose his broker’s license

and livelihood. (TT IV 82; V 23, 25). It is highly unlikely

Donald Stern would knowingly and intentionally subject

himself to such : vere sanctions for a mere $68.00 duty.??

This record hardly establishes Petitioner acted with the

requisite ‘‘evil motive or bad purpose either to disobey or

disregard the law.’’** United States v Porter, supra, 431

F2d at 7; United States v Sacco, supra, 428 F2d at 272.

22 Interestingly, the government, in rebuttal, failed to present any

evidence which countered your Petitioner's theory of the case.

Furthermore, Petitioner recognizes and accepts the legal maxim that

“ignorance of the law is no excuse.”’ Shevlin-Carpenter Co. v.

Minnesota, 218 U.S. 57, 68, 30 S. Ct. 663, 54 L.Ed. 930 (1910).

However, the Sixth Circuit would expand this principle and create a

‘sliding scale’’ approach, wherein the presumption that each person is

acquainted with the law would be altered to fit his education and

profession. (Order, May 4, 1977, page 1). This modification of the

aforementioned rule is both novel and impermissible, in that your

Petitioner is unaware that this or any other Court has approved of

such a position.

23° The fact an amended declaration was accepted (TT IV 46-47, 5S,

81) is indicative of the inspector's belief Mr. Stern was not acting with

a criminal intent.

26

Quite to the contrary, the evidence ‘‘at most establishes

no more than a choice of reasonable possibilities or

inferences, one criminal and the other innocent.’’ United

States v Leon, 534 F2d 667, 677 (6th Cir 1976); United

States v Saunders, 325 F2d 840, 843 (6th Cir 1964), cert

denied, 379 US 978, 85 S Ct 677, 13 LEd 2d 568 (1965).

Accordingly, the verdict of guilty cannot stand on appeal.

Where the evidence as to an element of a crime

is equally consistent with a theory of innocence as

with a theory of guilt, that evidence necessarily

fails to establish guilt beyond a reasonable doubt.

United States v Leon, supra, 534 F2d at 677;

United States v Delay, 440 F2d 566, 568 (7th Cir

1971).

Ill. THE GOVERNMENT’S ARGUMENT TO THE

JURY ON DEFENDANT’S FAILURE TO PRO-

DUCE CERTAIN PERSONS AS CHARACTER

WITNESSES WAS AN IMPERMISSIBLE COM-

MENT ON HIS RIGHT TO REMAIN SILENT AND

AN ERRONEOUS ATTEMPT TO SHIFT THE

BURDEN OF PROOF TO HIM.

During closing arguments, the Assistant United States

Attorney twice asked the jury to consider why the

Defendant did not present additional and different types

of character witnesses. (TT VI 40, 78). The second time

this contention was made defense attorney objected (TT

VI 78) and moved for a mistrial (TT VI 82), which was

subsequently denied. (TT VI 83).

However, these remarks impermissibly commented on

Donald Stern’s right to remain silent and was an

erroneous attempt to shift the burden of proof to him.

Cf., Griffin v California, 380 US 609, 85 S Ct 1229, 14

27

LEd 2d 106 (1965). Moreover, the trial court failed to

admonish the jury or give a cautionary instruction. See,

Middleton v United States, 49 F2d 538 (8th Cir 1931).

Furthermore, the fact these comments were made

twice magnified the error and had a cumulative effect

upon the jury. United States v Smith, 500 F2d 293 (6th

Cir 1974); Volkmor v United States, 13 F2d 594 (6th Cir

1926). In fact, this Circuit has recognized that even a

‘*single misstep on the part of the prosecution may be so

destructive of the right of the defendant to a fair tral that

reversal must follow.’’ Pierce v United States, 86 F2d

949, 952 (6th Cir 1926). Accordingly, these errors cannot

be termed ‘‘harmless’’ beyond a reasonable doubt,

Chapman v United States, 386 US 18, 87 S Ct 824, 17

LEd 2d 705 (1967), especially in light of the

overwhelming nature of the evidence. (See Argument II,

supra.)

}V . FAILURE OF THE TRIAL COURT TO INSTRUCT

THE JURY AS TO DEFENDANT’S THEORY OF

THE CASE IN REVERSIBLE ERROR.

It is a well-established legal maxim that a Defendant in

a criminal prosecution ‘‘is entitled to have presented

instructions relating to a theory of defense for which

there is any foundation in the evidence.’’ Perez v United

States, 297 F2d 12, 13-14 (Sth Cir 1961). - Accordingly,

‘‘[w)here the evidence presents a theory of defense, and

the court’s attention is particularly directed to it, ii is

reversible error for the court to refuse to make any

charge on such theory.’’ Levine v United States, 261 F2d

747, 748-749 (D.C. Cir 1958). See also, Bird v United

States, 180 US 356, 21 S Ct 403, 45 LEd 570 (1901);

United States v Indian Trailer Corp., 226 F2d 595 (7th

Cir 1955).

28

We do not intend to characterize the case for

the defense as either strong or weak. That is

unnecessary, for in criminal cases the defendant is

entitled to have presented instructions relating to

a theory of defense for which there is any

foundation in the evidence even though the

evidence may be weak, insufficient, inconsistent,

or of doubtful credibility. He is entitled to have

such instructions even though the sole testimony

in support of the defense is his own. United

States v Young, 464 F2d 160, 164 (Sth Cir 1972);

United States v Garcia, 452 F2d 419, 423 (Sth Cir

1971); Strass v United States, 376 F2d 416, 419

(Sth Cir 1967); Tatum v United States, 190 F2d

612, 617 (D.C. Cir 1950).

In the instant trial, the court refused to instruct the

jury on Defendant’s Theory of Defense (TT VI 102).

Petitioner’s objection was noted on the record (TT VI

102) and this failure constitutes reversible error.

The theory of the defendant must be stated

clearly and completely. A charge is erroneous if it

ignores a defense claimed as to which there is

evidence before the jury. Smith v United States,

230 F2d 935, 939 (6th Cir 1956). See also, Griego

v United States , 298 F2d 845 (10th Cir 1962).

Vv. IT IS ERROR FOR AN INDICTMENT NOT TO

CONTAIN THE CITATION OF PERTINENT AND

NECESSARY REGULATIONS WHICH PRO-

SCRIBE THE CONDUCT ALLEGED THEREIN.

An Indictment shall contain the ‘‘official or customary

citation of the statute, rule, regulation or other provision

29

of law which the defendant is alleged therein to have

violated."’ F.R.Cr. P. 7 (c) (1). One of the purposes of

this rule is “‘to aid a defendant in clearly understanding

the charge against him.’’ United States v De Sapio, 299 F

Supp. 436, 447 (S.D. N.Y. 1969).

Although failure to state the citation is harmless unless

the omission “‘mislead the defendant to his prejudice,”

F.R.Cr. P. 7 (c) (3), it is nonetheless *‘a matter of good

practice’’ for the indictment to specifically refer to

particular sections alleged to have been breached. Webb

v United States , 369 F2d 530, 536 (Sth Cir 1966).

In the instant case, the first paragraph of Count |

alleges Petitioner ‘‘failed to manifest or declare

merchandise which he carried into the United States on a

vehicle, in violation of Section 1459, Title 19 United

States Code, and Customs regulations promulgated

thereunder."’ However, this statute provides that an

individual, who is not a ‘“‘master of any vessel,”

importing or bringing merchandise into this country

‘‘shall present such merchandise to such customs officer

for inspection.’’ Accordingly, the language proscribed by

the statute is not contained in the indictment and a probe

of the regulations is required.

Moreover, subparagraph 2 of Count I states Mr. Stern

‘failed to declare all articles which he brought into the

United States, in violation of Section 1498 (a) (6). Title 19

United States Code, and Customs regulations

promulgated thereunder.’’ Yet, this statute merely

provides the ‘‘Secretary of the Treasury is authorized to

prescribed rules and regulations for the declaration and

entry of . . . articles carried on the person or contained in

the baggage of a person arriving in the United States.”’

Therefore, an examination of the regulations must be had

to ascertain exactly what was proscribed.

30

However, the indictment herein contains neither the

regulations or their identifying number. As such, the

Petitioner is not afforded his Sixth Amendment right to

be reasonably apprised of the nature of the accusation

against him. Russell v United States, 369 US 749, 82 S Ct

1038, 8 LEd 2d 1038 (1962). In addition, the indictment

fails to state an offense. F.R.Cr. P. 12 (b) (2). Therefore,

Defendant’s motion to dismiss (TT III 3) should have

been granted, especially in light of the confusion and

prejudice had by Defendant regarding closing argument

and jury instruction. (TT VI 102-103).

RELIEF REQUESTED

WHEREFORE, the Petitioner DONALD MARTIN

STERN respectfully prays that this Honorable Court

grant his Petition for Writ of Certiorari to consider the

important legal issues contained herein.

Respectfully submitted,

JAMES W. BURDICK (P11397)

BURDICK AND MCNEILL, P.C.

Attorney for Petitioner

OF COUNSEL:

NEIL H. FINK (P13430)

Attorney for Petitioner

1500 Buhl Building

Detroit, Michigan 48226

(313) 963-1700

31

APPENDIX

RELEVANT DOCKET ENTRIES

1972

Dec. 7. Indictment and report filed.

Dec. 21. Defendant arraigned on indictment.

1973

Jan. 10. Pretrial held.

Feb. 16. Defendant’s motion to dismiss indictment filed.

Mar. 9. Hearing on motion to dismiss indictment

commenced.

Apr. 12. Order denying defendant's motion to dismiss

filed.

July 10. Jury trial commenced.

July 18. Verdict of guilty returned by jury.

July 20. Defendant's motion for new trial or for order of

dismissal filed.

1976

Jan. 15. Defendant’s motion for new trial or for order of

dismissal denied.

Jan. 22. Judgment and probation order entered.

1977

May 4. Order, United States Court of Appeals for the

Sixth Circuit, denying Defendant’s Appeal.

32

INDICTMENT

(United States District Court,

Eastern District of Michigan,

Southern Division)

(U.S.A., Plaintiff vs. Donald Martin Stern, Defendant)

(Filed December 7, 1972)

THE GRAND JURY CHARGES:

COUNT ONE

That on or about the 12th day of November, 1972, in

the Eastern District of Michigan, Southern Division,

DONALD MARTIN STERN, defendant herein,

fraudulently or knowingly did import or bring

merchandise, that is, various pieces of clothing, china,

antiques, and decorative brass and copper ware, into the

United States contrary to law, in that:

(1) said defendant, DONALD MARTIN

STERN, failed to manifest or declare merchandise

which he carried into the United States on a

vehicle, in violation of Section 1459, Title 19

United States Code, and Customs regulations

promulgated thereunder, or

(2) said defendant, DONALD MARTIN

STERN, failed to declare all articles which he

brought into the United States, in violation of

Section 1498(a) (6), Title 19 United States Code,

and Customs regulations promulgated thereunder:

in violation of Section 545, Title 18 United States Code.

ee ee ee

33

THE GRAND JURY FURTHER CHARGES:

COUNT TWO

That on or about the 12th day of November, 1972, in

the Eastern District of Michigan, Southern Division,

DONALD MARTIN STERN, defendant herein, wilfully

and knowlingly did enter or introduce, or attempt to enter

or introduce into the commerce of the United States,

imported merchandise, that is, various pieces of toys,

clothing, china, antiques, and decorative brass and

copper ware, by means of a false and fraudulent

declaration to United States Customs Inspector, Alan J.

Zelton, that the said merchandise had been purchased for

approximately Four Hundred Dollars ($400.00), whereas,

in truth and fact, as DONALD MARTIN STERN well

knew, the said merchandise had been purchased for

approximately Eight Hundred Sixteen Canadian Dollars

($816.00) Eight Hundred Twenty-nine United States

Dollars ($829.00); in violation of Section 542, Title 18

United States Code.

THE GRAND JURY FURTHER CHARGES:

COUNT THREE

That on or about the 12th day of November, 1972, in

the Eastern District of Michigan, Southern Division,

DONALD MARTIN STERN, defendant herein, wilfully

and knowingly did enter or introduce, or attempt to enter

or introduce, into the commerce of the United States,

imported merchandise, that is, various pieces of toys,

clothing, china, antiques, and decorative brass and

copper ware, by means of a false and fraudulent

declaration to United States Customs Inspector, Peter E.

Sirosky, that the said merchandise was valued at

approximately Five Hundred Dollars ($500.00), whereas,

34

in truth and fact. as DONALD MARTIN STERN well

knew, the said merchandise had been purchased for

approximately Eight Hundred Sixteen Canadian Dollars

($816.00) (Eight Hundred Twenty-nine United States

Dollars ($829.00)); in violation of Section 542. Title 18

United States Code.

FINDINGS OF FACT AND OPINION

DENYING MOTION TO DISMISS INDICTMENT

(United States District Court,

Eastern District of Michigan,

Southern Division)

(U.S.A., Plaintiff vs. Donald Martin Stern, Defendant)

(Filed April 12, 1973)

(208) The Court: The Court in this case of United

States of America versus Donald Stern has before it the

defendant's Motion to Dismiss the indictment against him

on the grounds that the Government is guilty of

discriminatory prosecution. The defendant alleges that

the prosecution against him, a Customs broker by

occupation, is the result of a personal vendetta waged

against him by the United States Treasury Department

because of the personal animosity of Special Agent

Clifford Best.

In response to the Motion, Mr. Alan Harnisch. the

Assistant U. S. Attorney, has filed an affidavit in which

he states that his decision to prosecute the defendant was

not based on any arbitrary consideration, but on the

following factors: One, the belief that the defendant is in

35

fact guilty; two, that there is reasonable probability that

the defendant will be convicted; and three, the (209)

belief that justice will be served by this conviction.

In their briefs, the parties both cite the same authority

as controlling the merits of the defendant’s contention,

that being 4 ALR 3rd 404 and following. That annotation

sets forth the elements which the defendant must be able

to show in order for his contention of discriminatory

prosecution to succeed. It reads as follows and I quote:

‘*It is insufficient merely to show that the other

offenders had not been prosecuted or that there

had been laxity of enforcement or that there has

been a conscious exercise of selectivity in

enforcement, but there must be sufficient evidence

to establish the existence of intention or

purposeful discrimination which is deliberately

based upon an unjustifiable standard such as race,

religion or other arbitrary classification.”

} believe the parties are agreed as to the applicable law

for determining whether a prosecution is proper in the

respect alleged. An evidentiary hearing was held for the

purpose of determining whether such impermissible

discrimination existed. The hearing revealed that the

prosecution involved here is at best unique.

The defendant is accused of Customs violations in (210)

connection with his entry into the United States on

November 12, 1972. He is charged with importing certain

merchandise without properly declaring it. The

merchandise in question is harmless, consisting of toys,

antiques, china and clothing. Had he properly declared

these items, the duty owing would have amounted to

$68.00. The defendant does not have a prior criminal

record. In all previous similar circumstances involving

36

other such offenders, the Customs Department has

proceeded administratively without result in criminal

prosecution. Administrative action has also been taken

against Mr. Stern to the extent of a one hundred percent

penalty and the seizure of his automobile.

I might point out that it is not clear to the Court, even

after hearing the testimony, exactly why in this case a

criminal prosecution was also brought. One possible

explanation is that Special Agent Clifford Best, who

played a principal role in executing the arrest and in

seeking criminal sanctions against the defendant, had

developed a personal dislike for defendant stemming from

an extensive investigation conducted by Best into the

defendant’s operation as a Customs broker. Not-

withstanding Best’s efforts, no action had been taken

against the defendant at that time and I believe even to

this time, to Best’s obvious disappointment. Best’s

personal (211) feelings toward the defendant were

reflected in the unnecessarily harsh treatment meeted out

to the defendant at the apparent initiative of Best

immediately following his arrest. For in spite of a clean

prior record and notwithstanding his obviously deep roots

in the community which were known to Best and the

other Agents involved, the defendant was incarcerated

over night in the Wayne County Jail. Even the vigorous

efforts of Mr. Rosenthal, defendant’s attorney, to secure

defendant's release on bond were to no avail until the

following morning.

Now, this is in shocking contrast to the usual treatment

of arrested violators. There was testimony that even

some charged with smuggling narcotics are not

incarcerated. No adequate or even candid explanation

was offered by Government witnesses for the special

treatment of the defendant in this regard.

ee ee

37

To the extent that the animosity of Agent Best toward

defendant might explain the Government's decision to

proceed against him, this prosecution, in the opinion of

the Court, from what it has heard, must certainly be

regarded as a monument to misguided zeal and bad

judgment. The affidavit of Mr. Harnisch, the Assistant

U. S. Attorney, as he has argued to the Court, points out

that the decision to prosecute was his and that he decided

to prosecute because he believed there was flagrant

violation of the (212) law. And as the Court said in

United States vs. Mano, 118 F. Supp. 511, at 515, and I

quote:

‘It is the defendant's contention that the

Internal Revenue officials have discriminated

against so called racketeers, singling their cases

out for prosecution and not utilizing the statutory

power of compromise. In support of their

position, the defendants have cited cases outlining

the proper administration of Government. But

none of them touches closely to the instant case.

These decisions may be summed up by saying that

citizens are entitled to equal protection of the law.

But these decisions do not hold that citizens are

entitled to equal protection from the laws. The

fact that not all criminals are prosecuted is no

valid defense to one prosecuted. As the

Government points out in many cases supporting

its position, the administration of such matter lies

in the discretion of a prosecuting attorney. The

Government also calls attention to the fact that

the designation of racketeer type is unrelated to

the return of indictments by grand juries who have

no knowledge of the Treasury Depart- (213)

ment’s characterization of the case. Long ago, the

Supreme Court, in the In Re Confiscation cases.

74 U.S. 454; 19 Law Edition 196, took this

position:

38

‘Public prosecutions, until they come

before the Court to which they are

returnable, are within the exclusive discretion

of the district attorney’.”’

In a suit where the United States sought forfeiture of

an automobile, Judge Sparks stated in United States v.

One 1940 Oldsmobile, and I quote:

“There is quite a large discretion vested in a

district attorney to resubmit a presentment to the

grand jury or to subsequent grand juries and this

is not subject to control of the district courts.’’

However, once having said that, I suggest that at the

very least, the Customs Department policy which

permitted and condoned the harsh post-arrest treatment

of the defendant should be examined and reformed. I say

this because of what I heard from the witness stand in

the course of this hearing. For example, I have never

heard such equivocation of testimony, especially from

Agents of a Feceral Agency. What I’m referring to is

(214) this: First, the hesitation on the part of the

witnesses to answer many of the questions; two, the

evasive answers; and at least twice, Agent Best answered

that he couldn’t figure out what the attorney was getting

at. In both of those cases, the Court had to admonish and

warn him that it was not for him to figure out what the

attorney was getting at but to answer the question.

Thirdly, the testimony with regard to the file in this case.

Agent Best first said it was in his office and then when

the Court indicated it would call a recess to allow him to

get the file so that it could be reviewed in camera, he

said it was on the table. I can’t conceive of an Agent

bringing a file over for a hearing, putting it on counsel

table and then a few minutes later saying it is in his

office. Four, the testimony by Mr. Best that a felony was

committed in his presence when he was called there after

39

the defendant had been stopped by the Agents at the

Tunnel. Five, Agent Best’s testimony and the evidence

presented relative to his remarks about an attorney. Six,

Agent Best’s testimony about his statement to Mr. Stern

relative to the fact that, “‘You probably think I’m doing

this because you are Jewish, but that isn’t so’’, or

remarks to that effect. In the opinion of the Court, this is

like the usually used statement, “‘Some of my best

friends are Jewish’’. Even Mr. Harnisch, in his closing

argument, (215) stated, and I quote, ‘‘Mr. Best made a

statement which bothers me and should bother the Court,

a statement which was improper and out of order.”

Seven, the fact that Mr. Eshelman, in the car at the time

that the statement admitted by Mr. Best was made, heard

so many things but didn’t hear this statement. Eight, the

testimony of Mr. Liming relative to the practice of

arresting a person at the Tunnel or Bridge for such a

violation in light of Mr. Rearick’s testimony that in

twelve years with Customs, he has never seen this

happen, and the answer based on what I’m sure was a

thbrough search of their files and yet they could come up

with only three arrests in the past seventeen years. And,

lastly, the fact that the Assistant U. S. Attorney, Mr.

Harnisch, at the request of the Agents, I’m sure,

requested that the Agents be excused because there was

so much work to be done and they needed to be allowed

to leave so they could attend to their duties; yet despite

this request which the Court granted, one Agent

remained in the court room and one in the hallway.

Now, having said ali that, the Court is now faced with

the law which must guide this Court in resolving the issue

before it. Based on that law, it does not appear to me

that the conduct of the Government in this case reaches

Constitutional proportions. While the proceedings (216)

against the defendant may reflect bad judgment, they do

not appear to be deliberately based upon an unjustifiable

40

standard such as race, religion or other arbitrary

classification. What has been shown instead in a

conscious exercise of selectivity in enforcement. Under

the applicable rule, this does not warrant dismissal of the

indictment.

In the case of Moss v. Hornig, 314 F2d 89, the Court

stated and I quote:

‘*Mere failure to prosecute other offenders is no

basis for a finding of denial of equal protection.

To show that unequal administration of a state

statute offends the equal protection clause, one

must show an intentional or purposeful

discrimination. In Oiler vs. Bowles, 368 U.S., the

Supreme Court rejecting Petitioner's contention

that a selective enforcement of the West Virginia

habitual offenders penalty statute was a denial of

his right to equal protection, said, ‘The conscious

exercise of some selectivity in enforcement is not

in itself a Federal Constitutional violation. Even

though the statistics in this case might imply a

policy of selective enforcement, it was not stated

(217) that the selection was deliberately based

upon an unjustifiable standard such as race,

religion or other arbitrary classification.

Therefore, grounds supporting a finding of a

denial of equal protection were not alleged.” The

Oiler case seems to indicate that the relief for

denial of equal protection is limited to cases

where class discrimination is proved.”

Now, the defense here has attempted to show that the

proceedings against the defendant were prompted by

anti-Semitism as based upon the statement which |

referred to earlier. In the opinion of the Court, however,

this theory has not been sufficiently substantiated by the

evidence at the hearing. Accordingly, the Motion will be

denied.

41

ORDER GRANTING MOTION FOR JUDGMENT

OF ACQUITTAL AS TO COUNTS II AND II

AND DENYING SAID MOTION AS TO

COUNT I OF THE INDICTMENT

(United States District Court

Eastern District of Michigan

Southern Division)

(U.S.A., Plaintiff v. Donald Martin Stern, Defendant.

— No. 48103)

(Fieé —.......

At a regular session of said Court, held in the Federal

Building, Detroit, Michigan, on

PRESENT: THE HONORABLE LAWRENCE

GUBOW, District Judge.

Whe Defendant, at the close of the Government's proof,

having made a Motion for Judgment of Acquittal as to all

three Counts of the Indictment, oral argument having

been heard, and the Court being of the opinion that the

Government failed to make out a prima facie case as to

Counts II and III, but did make out a prima facie case as

to Count I of the Indictment and the Court otherwise

being fully advised in the premises;

NOW, THEREFORE, IT IS HEREBY ORDERED

that the Defendant's Motion for Judgment of Acquittal be

and hereby is granted as to Counts Il and III of the

Indictment but is denied as to Count I of the Indictment.

LAWRENCE GUBOW

District Judge

42

ORDER DISMISSING MOTION FOR NEW TRIAL

AND FOR ORDER OF DISMISSAL

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed January 15, 1976)

(U.S.A., Plaintiff v. Donald Martin Stern, Defendant.

— No. 48103)

At a session of said court held at Detroit, Michigan,

this 1Sth day of January, 1976.

PRESENT: HON. LAWRENCE GUBOW, U.S.

District Judge.

For the reasons stated in the Memorandum Opinion

Dismissing Motion for New Trial And Or Order of

Dismissal entered in this case on this date,

IT IS ORDERED that the Defendant’s motion for a

new trial or for order of dismissal be, and hereby is,

DENIED.

/s/ Lawrence Gubow

U.S. District Judge

* -

a ee

43

MEMORANDUM OPINION

(United States District Court

Eastern District of Michigan

Southern Division)

(U.S.A., Plaintiff v. Donald Martin Stern, Defendant.

— No. 48103)

(Filed )

Before the court is a renewed motion to dismiss the

indictment against Defendant DONALD STERN on the

basis of United States v. Falk, 479 F.2d 616 (7th Cir.

1973). The Government has filed a memorandum in

opposition to this motion.

DONALD MARTIN STERN was arrested on

November 12, 1972 for a customs violation relating to his

entry into the United States at the Detroit-Windsor

Tunnel. He was indicted by a grand jury on December 7,

1972 and charged with a violation of 18 U.S.C. §545.

Prior to the trial, an evidentiary hearing was conducted to

determine if the criminal proceedings against the

Defendant had been initiated in a discriminatory manner.

At the conclusion of the testimony, the court summarized

its findings as follows:

“The hearing revealed that the prosecution

involved here is at best unique. The defendant is

accused of Customs viola‘. «+s in connection with

his entry into the United Siates on November 12,

1972. He is charged with importing certain

merchandise without properly declaring it. The

merchandise in question is harmless, consisting of

44

toys, antiques, china and clothing. Had he

properly declared these items, the duty owing

would have amounted to $68.00. The defendant

does not have a prior criminal record. In all

previous similar circumstances involving others,

they proceeded administratively without result in

criminal prosecution. Administrative action has

also been taken against Mr. Stern to the extent of

a one hundred percent penalty and the seizure of

his automobile.

I might point out that it is not clear to the

Court, even after hearing the testimony, exaciiy

why in this case a criminal prosecution was also

brought. One possible explanation is that Special

Agent Clifford Best, who played a principal role in

executing the arrest and in seeking criminal

sanctions against the defendant, had developed a

personal dislike for defendant stemming from an

extensive investigation conducted by Best into the

defendant’s operation as a Customs broker.

Notwithstanding Best’s efforts, no action had

been taken against the defendant at that time and

I believe even to this time, to Best’s obvious

disappointment. Best’s personal feelings toward

the defendant were reflected in the unnecessarily

harsh treatment meeted (sic) out to the defendant

at the apparent initiative of Best immediately

following his arrest. For in spite of a clean prior

record and notwithstanding his obviously deep

roots in the community which were known to Best

and the other Agents involved, the defendant was

incarcerated over night (sic) in the Wayne County

en ne

=

ed ne tl Na le Ae Rid Bi Ceti

45

Jail. Even the vigorous efforts of Mr. Rosenthal,

defendant's attorney, to secure defendant's

release on bond were to no avail until the

following morning.

Now, this is in shocking contrast to the usual

treatment of arrested violaters. There was

testimony that even some (individuals) charged

with smuggling narcotics are not incarcerated. No

adequate or even candid explanation was offered

by Government witnesses for the special

treatment of the defendant in this regard.

To the extent that the animosity of Agent Best

toward defendant might explain the Government's

decision to proceed against him, this prosecution,

in the opinion of the Court, from what it has

heard, must certainly be regarded as a monument

to misguided zeal and bad judgment. The affidavit

of Mr. Harnish, the Assistant U.S. Attorney as he

has argued to the Court, points out that the

decision to prosecute was his and that he decided

to prosecute because he believed ‘“‘there was

flagrant violation of the law . . ., I suggest that at

the very least, the Customs Department policy

which permitted and condoned the harsh

post-arrest treatment of the defendant should be

examined and reformed. I say this because of what

I heard from the witness stand in the course of

this hearing. For example, I have never heard

such equivocation of testimony, especially from

Agents of a Federal Agency... . First, the

hesitation on the part of the witnesses to answer

many of the questions; two, the evasive answers;

and at least twice, Agent Best answered that he

couldn’t figure out what the attorney was getting

46

at. In both of those cases, the Court had to

admonish and warn him that it was not for him to

figure out what the attorney was getting at but to

answer the question. Thirdly, the testimony with

regard to the file in this case. Agent Best first said

it was in his office and then when the Court

indicated it would call a recess to allow him to get

the file so that it could be reviewed in camera, he

Said it was on the table. I can’t conceive of an

Agent bringing a file over for a hearing, putting it

on counsel table and then a few minutes later

saying it is in his office. Four, the testimony by

Mr. Best that a felony was committed in his

presence when he was called there after the

defendant had been stopped by the Agents at the

Tunnel. Five, Agent Best’s testimony and the

evidence presented relative to his remarks about

an attorney. Six, Agent Best’s testimony about his

statement to Mr. Stern relative to the fact that,

‘You probably think I’m doing this because you

are Jewish, but that isn’t so’, or remarks to that

effect. In the opinion of the Court, this is like the

usually used statement, ‘Some of my best friends

are Jewish’. ... Seven, the fact that Mr.

Eshelman, in the car at the time that the

statement admitted by Mr. Best was made, heard

sO many things but didn’t hear this statement.

Eight, the testimony of Mr. Liming relative to the

practice of arresting a person at the Tunnel or

Bridge for such a violation in light of Mr.

Rearick’s testimony that in twelve years with

Customs, he has never seen this happen, and the

answer based on what I’m sure was a thorough

search of their files and yet they could come up

———

ee ee

— uvseasint ABest DW il eA ee Oe Orme &

47

with only three arrests in the past seventeen

years. And, lastly, the fact that the Assistant U.S.

Attorney, Mr. Harnisch, at the request of the

Agents, I’m sure, requested that the Agents be

excused because there was so much work to be

done and they needed to be allowed to leave so

they could attend to their duties; yet despite this

request which the Court granted, one Agent

remained in the court room and one in the

hallway.

Now, having said all that, the Court is now

faced with the law which must guide this Court in

resolving the issue before it. Based on that law, it

does not appear to me that the conduct of the

Government in this case reaches Constitutional

proportions. While the proceedings against the

defendant may reflect bad judgment, they do not

appear to be deliberately based upon an un-

justifiable standard such as race, religion or other

arbitrary classification. What has been shown

instead in (sic) (is) a conscious exercise of

selectivity in enforcement. Under the applicable

rule, this does not warrant dismissal of the

indictment.

Now, the defense here has attempted to show

that the proceedings against the defendant were

prompted by anti-Semitism as based upon the

statement which I referred to earlier. In the

opinion of the Court, however, this theory has not

been sufficiently substantiated by the evidence at

the hearing. Accordingly, the Motion will be

denied.”

48

The Defendant was subsequently convicted following a

jury trial of a violation of 18 U.S.C. §545. After the

publication of United States v. Falk, 479 F.2d 616 (7th

Cir. 1973), the Defendant renewed his motion to dismiss

the indictment. After requesting briefs from both parties

on the applicability of Falk to the instant case, we took

the matter under advisement.

The defense of discriminatory prosecution gained

acceptance with the decision of the United States

Supreme Court in Yick Ho v. Hopkins, 118 U.S. 356

(1886). The Court held that an impartial statute applied

by authorities in an unjust and discriminatory manner to

persons similarly situated violated the equal protection

clause. In Oyler v. Boles, 368 U.S. 368 (1962), the Court

held that the selective enforcement of a criminal statute

was not in itself a constitutional violation unless the

selection was based on an unjustifiable standard such as

race or religion or some other such ‘‘arbitrary

classification’’. Oyler, however, does not preclude

granting relief for intentional or purposeful discrimination

against an individual, Moss v. Hornig, 314 F.2d 89, 93

(2nd Cir. 1963).

In United States v. Falk, supra, the defendant was

found guilty of failing to possess a selective service

registration and draft classification cards. At trial, he

attempted to prove that criminal proceedings had been

initiated against him because of his anti-war and draft

counseling activities, thus punishing him for the exercise

of his First Amendment rights. The court held that, in

view of the Government’s past policy of penalizing

individuals expressing anti-war sentiments, it was

incumbent upon the Government to justify prosecuting

Falk. The court outlined several factors establishing a

prima facie case for selective prosecution: the delay in

bringing the indictment against Falk, a statement by

ae

49

the prosecution that part of Falk’s troubles stemmed from

his anti-war and draft-counseling activities, the fact that

the prosecution had been carefully approved by a chain

of command in the Department of Justice. Accordingly,

the court remanded the case to the district court for

evidentiary hearings with instructions to dismiss the

indictment if the prosecution had been initiated for the

purpose of chilling Falk’s First Amendment rights.

Falk and post-Falk cases have not led to a broadening

of the selective prosecution defense; a defendant raising

this claim still has a heavy burden to overcome the

presumption of regularity in the institution of criminal

proceedings. He must show 1) that others similarly

situated have not been proceeded against for the same

type of conduct with which he is being charged and 2)

that the Government's reason is discriminatory or in bad

faith, being based on impermissible considerations such

as race or religion or the desire to prevent exercise of

constitutional rights, United States v. Berrios, 50\ F.2d

1297, 1212 (2nd Cir. 1974). In United States v.

Ortego-Alvarez, 506 F.2d 455 (2nd Cir. 1974) cert denied

U.S. , the court, citing the Berrios test,

upheld convictions of conspiracy to violate the narcotics

laws of the United States, refusing to set aside the

convictions on the ground that one member of the

conspiracy had been prosecuted while others had not.

In United States v. Benson, 509 F.2d 1205, 1208 (8th

Cir. 1975), in reviewing two convictions for failure to file

income tax returns, the court discussed the applicability

of the selective prosecution defense where the Internal

Revenue Service carried on a special program (ACE) to

investigate the tax returns of attorneys, accountants and

registered practitioners. The defendants had charged that

the IRS’ ACE program constituted an invidious

discrimination which was arbitrary and capricious and

50

which had resulted in a disproportionate number of

convictions among such individuals. The court found that

the defendants had not shown that others similarly

situated had not been prosecuted and that the

Government's decision to proceed was invidious or made

in bad faith. See also, United States v. Beuchler. 509

F.2d 13 (4th Cir. 1975), cert denied U.S. ;

In United States v. Brookshire, 514 F.2d 786 (10th Cir.

1975) rehearing denied, the defendant appealed his

conviction for misapplication of bank funds through the

use of interbank deposit slips, claiming that the federal

statute under which he was convicted has never been

used to prosecute others for such conduct and that

the actions for which he was convicted, and that

the record did not show that a general banking practice

regarding the use of interbank deposit slips had been

shown and that, even if such a practice did exist, custom

and usage involving criminality did not defeat a criminal

prosecution for violation of a criminal statute. Under

Brookshire, as long as the charged conduct is proscribed

by statute, no federal constitutional violation occurs

when an individual is prosecuted even if there have been

no prior prosecutions under the statute.

Thus, neither Falk nor the federal cases decided after

Falk have extended the defense of discriminatory

prosecution beyond the scope of Oyler v. Boles, supra.’

At the evidentiary hearing, this court did not find that

the discrimination against STERN had constitutional

proportions, despite indications that criminal proceedings

' The Fifth Circuit has indicated that it does not intend to follow

the Falk case, United States v. Ream, 491 F.2d 1243, 1246 (1974):

United States v. Raven, S00 F.2d 728, 733 (1974).

he

4 ee

51

against him might have been initiated because of the great

personal animosity of the special agent originally involved

in investigation of his business. The animosity is best

shown by the unprecedented decision to hold Defendant

overnight in the Wayne County Jail. Several instances of

non-cooperation and obstructionist tactics by customs

agents at the evidentiary hearing show bad faith.

Moreover, the absence of criminal prosecutions (with

three minor exceptions) during a seventeen year period is

significant where it cannot be doubted that numerous

customs violations had occurred and had been processed

administratively during the same period. This court

cannot condone conduct based on pettiness and personal

vendettas on the part of Government agents.

However, the court will not do the Customs

Department the injustice of assuming that it approves

applying the customs laws with a heavy hand against one

individual. Hopefully, the misguided zeal and bad

judgment characterizing this case at its inception and at

the evidentiary hearing were aberrations. In view of the

great misconduct that the record amply demonstrates

here, the court hopes that no further proceedings, as a

result of this conviction, will be initiated against the

Defendant.

Having carefully examined Falk v United States and

recent case law, as well as the record, the court

concludes that its original finding at the evidentiary

hearing, to wit that the conduct of the Government in this

case did not reach constitutional proportions sufficient to

uphold the defense of discriminatory enforcement of the

laws, must stand.

Accordingly, albeit with the utmost reluctance, the

court denies Defendant's renewed motion to dismiss the

indictment.

/s/ Lawrence Gubow

Dated: Jan. 15, 1976 U.S. District Judge

$2

ORDER

(United States Court of Appeals

For the Sixth Circuit)

(U.S.A., Plaintiff-Appellee, vs. Donald M. Stern,

Defendant-Appellant — No. 76-2486)

(Filed May 4, 1977)

Before: PHILLIPS, Chief Judge, EDWARDS and

PECK, Circuit Judges.

On receipt and consideration of an appeal from a

conviction after jury trial for failure to declare

merchandise brought into the United States, in violation

of 18 U.S.C. §545 (1970), and a subsequent two-year

sentence of unsupervised probation; and

Noting that appellant was a custom house broker by

employment, and hence, could be presumed to be far

more thoroughly acquainted with United States customs

regulations than the average citizen; and

Noting further that there clearly was evidence before

the District Court from which appellant’s knowing

violation of the customs law could have been found by

the jury beyond reasonable doubt, and

Noting further the careful attention that the District

Judge gave to appellant’s arguments, 1) that appellant had

been subjected to harassment by a special agent of the

Bureau of Customs, Clifford Best, who had initiated his

confinement overnight in the Wayne County Jail and had

said to him at one point something to the effect that,

ee ee

53

‘‘You probably think I am doing this because you are

Jewish, but that isn’t so,’’ and the District Judge

condemned this action and this language in the strongest

terms, but nonetheless, found no Constitutional violation

in the criminal prosecution (as opposed to civil action to

recover penalties) where there was no evidence that the

United States Attorney’s office was motivated by

anything other than the facts of the offense and the

obvious professional knowledge of the appellant; and

Noting further that in concluding his opinion denying a

renewed motion to dismiss the indictment on the basis of

United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en

banc), District Judge Gubow said as follows:

However, the court will not do the Customs

Department the injustice of assuming that it

approves applying the customs !aws with a heavy

hand against one individual. Hopefully, the

misguided zeal and bad judgment characterizing

this case at its inception and at the evidentiary

hearing were aberrations. In view of the great

misconduct that the record amply demonstrates

here, the court hopes that no further proceedings,

as a result of this conviction, will be initiated

against the Defendant.

Having carefully examined Falk v. United

States and recent case law, as well as the record,

the court concludes that its original finding at the

evidentiary hearing, to wit that the conduct of the

Government in this case did not reach

constitutional proportions sufficient to uphold the

defense of discriminatory enforcement of the laws,

must stand.

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Accordingly, albeit with the utmost reluctance,

the court denies Defendant's renewed motion to

dismiss the indictment.

Now, therefore, this court affirms the judgment of the

District Court for the reasons, including the dicta set

forth in said Memorandum Opinion of January 15, 1976.

Entered by order of the Court

/s/ John D. Hehman

Clerk