Petition — Morgan v. United States

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

7?" 1896

DUDLEY MORGAN, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

JAMES C. LANG

Fourth Floor

Thurston National Building

Tulsa, Oklahoma 74103

Attorney for Petitioner

Of Counsel:

SNEED, LANG, TROTTER,

ADAMS, HAMILTON & DOWNIE

Fourth Floor

Thurston National Building

Tulsa, Oklahoma 74103

TABLE OF CONTENTS

SN SN 60 ound o0Ghsendsnes6adbegnenescenses 2

I ho panos dn sd ie cesnsnoeeeeenddatdaenests 2

Sy IID so cckcvcevnnvesenneeendouncesace 2

Constitutional Provisions Involved................... 3

Pe HE DNs necdbcecécccctcdcndcccecsess 3

ET cn ctnccaneckidsesubeaudeteseuned 4

Reasons for the Allowance of the Writ............... 7

I. The decision below directly conflicts

with the opinion of the United States Court of

Appeals for the Fifth Circuit in United States v.

Candelaria-Gonzalez, 547 F.2d 291 (5th Cir.

SEED 6hs6nuccenendsencuseenenskecsscesues esac 8

II. The decision below directly conflicts

with this Honorable Court’s statements as set

forth in Estelle v. Williams, U.S.

ete Wil Se IE 9. non5.06 bescaccenensneastece 10

III. The decision below sets forth an inter-

pretation of Rule 405 of the Federal Rules of

which should be corrected .............ceccceees 13

Amppends A . wc ccccccccccccccccccvcccccccccesesees Al

BS kn keen ebneeenedcnenesnssnccecseseddsees A8

INDEX TO AUTHORITIES

Amendment V, United States Constitution ........... 3

Cases:

Chapman vy. California, 386 U.S. 18 (1967)........ 12

Coffin v. United States, 156 U.S. 482 (1895) ...... 10

Craft v. Mississippi,

181 So.2d 140 (Miss. 1965) ............-5000. 7

Diggs v. State, 88 S.W.2d 103 (Tex. 1935)........ J

Estelle v. Williams, _____ U.S. ,

OB B. Ce. BOGE CRBTED co ccccccccccccccs 8, 11, 12

Gaugh v. Commcnwealth,

87 S.W.2d 94 (Ky. 1935). ........ cece cence 7

Sexton v. State, 312 So.2d 71 (Ala. 1975)......... 7

United States v. Candelaria-Gonzalez,

547 F.2d 291 (5th Cir. 1977)......... 7, 8, 9, 10

United Stated v. Morgan,

Slip. Op. No. 801, (S.D.N.Y. 1977).......... Al

Federal Statutes and Rules

2B U.S.C. SIBBHA) .. nc cccccccccccccccccccccvees 2

Rule 405, Federal Rules of Evidence............. 3

Miscellaneous

Notes of Advisory Committee on proposed

Federal Rules of Evidence...............++-- 10

In The

SUPREME COURT OF THE UNITED STATES

No.

DUDLEY MORGAN, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

The Petitioner, Dudley Morgan, Jr., prays that a

writ of certiorari issue to review the decision and judg-

ment of the United States Court of Appeals for the

Second Circuit rendered in these proceedings on April

18, 1977 (and thereby, in effect, to review the conviction

and sentence imposed by the United States District

Court for the Southern District of New York on October

8, 1976).

OPINION BELOW

The decision of the Second Circuit, as yet

unreported, appears at Appendix A. The Conviction and

sentence imposed by the United States District Court for

the Southern District of New York is not reported.

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit was entered on April 18, 1977.!

Petitioner filed a Petition for Rehearing in Bane which

was denied on June 29, 19772 This petition for certiorari

was filed less than thirty days from the date of the denial

of the Petition for Rehearing in Banc. The jurisdiction of

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

QUESTIONS PRESENTED

The United States of America prosecuted Petitioner

for mail fraud and the use of schemes and artifices to

defraud in connection with the sale of securities in inter-

state commerce. At the trial, Petitioner introduced

testimony to establish his good character, and the

questions arising as a result of the cross-examination of

Petitioner's character witnesses are:

1. Whether questions asked by a United States

Attorney over Defendant's objection to character

1. Appendix A.

2. Appendix B.

witnesses of the Defendant, and which assume

Defendant’s guilt of the offense for which he is on trial,

violate Defendant’s right to the presumption of

innocence, to a fair trial, and to due process under the

due process clause of the Fifth Amendment.

2. Whether the asking of questions to Defendant's

character witnesses which assume a Defendant’s guilt of

the offense for which he is on trial constitutes a serious

denial of Defendant's constitutional rights, or merely

constitutes “harmless error.”

3. Whether Rule 405 of the Federal Rules of

Evidence permits a United States Attorney to ask

Defendant’s character witnesses questions on cross-

examination which assume that the Defendant is guilty of

the alleged offense for which he is being tried.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

“No person shall . . . be deprived of life, liberty, or

property, without due process of law. . .”

FEDERAL RULES INVOLVED

Rule 405 of the Federal Rules of Evidence:

“(a) Reputation or opinion. In all cases in which

evidence of character or a trait of character of a person

is admissible, proof may be made by testimony as to

reputation or by testimony in the form of an opinion. On

cross-examination, inquiry is allowable into relevant

specific instances of conduct.

(b) Specific instances of conduct. In cases in which

character or a trait of character of a person is an

essential element of a charge, claim, or defense, proof

may also be made of specific instances of his conduct.”

STATEMENT OF CASE

The facts relevant to the questions presented by this

Petition are uncontroverted and therefore may be

introduced to the Court in a summary fashion.

Petitioner, Dudley Morgan, Jr., was the managing

partner of a brokerage firm in Tulsa, Oklahoma. He was

charged with failing to disclose certain material facts in

connection with the sale of stock of a New York

corporation named Display Sciences, Inc. The indictment

alleged, inter alia, that Petitioner had sold stock in

Display Sceinces, Inc. when he knew the corporation was

in receivership, and that he failed to disclose to the

purchasers that the corporation was in receivership.

The principal Government witness was one Frank

Dell’Aglio, a co-defendant who had previously received

probation as a result of a plea-bargaining agreement.

Both Dell’Aglio and Erwin Pincus, an attorney, testified

that Petitioner knew the corporation was in receivership

at the time he sold the stock.

Petitioner testified in his defense that he had not

known that the corporation was in receivership during

the period in question. He testified that, if he had been

aware of the receivership or other negative information

concerning the corporation, he and his family would not

have invested over One Hundred Thousand Dollars

($100,000.00) in the corporation during the period in

question. The critical issue therefore became one of

credibility between Dell’Aglio and Pincus, on the one

hand, and Petitioner on the other. Petitioner called

numerous character witnesses who testified as to

Petitioner's good character, and the questions presented

herein involve the cross-examination of the character

witnesses by the United States Attorney.

Over Petitioner's objection, the Government asked

three of Petitioner's character witnesses who had

presented favorable character evidence on Petitioner's

behalf, if their opinion would change if they knew that

Petitioner had committed various acts alleged in the

indictment In other words, the Government's question

was, in effect, “would your opinion about Petitioner

3. Specifically, the prosecutor asked, “Now, Mr. (witness), if Mr.

Morgan knew that Display Sciences, was in receivership at the time

he was selling these shares of Display Sciences stock between May

and July of 1972 and didn’t tell that to his customers, would your

opinion of him change at all?” Trial Transcript, p. 55A.

change if you knew that he was guilty of this charge for

which he is being tried?” Each of the character witnesses

who was asked this question stated that his opinion

would change under those circumstances.

Petitioner was convicted by the jury, but the trial

court acknowledged in the record that the question as to

his guilt or innocence was a close one’ After he was

convicted by the jury, Petitioner was sentenced on the

8th day of October, 1976 to a term of two years in the

custody of the Attorney General, on the condition that he

be confined in a jail-type or treatment institution for two

months and that he serve the balance of the two years on

probation.

An appeal was taken by Petitioner to the United

States Court of Appeals for the Second Circuit, and on

April 18, 1977, that Court affirmed the judgment below.

Petitioner timely filed a Petition for Rehearing in Banc,

which was denied on June 29, 1977.

The Second Circuit recognized in the majority

opinion that the questions which were asked by the

United States Attorney should not have been asked and

that the probative value of such questions were

negligible® The concurring opinion of Circuit Judge

4. Judge Wyatt stated at sentencing:

“And if I were free to decide everything on the basis of my personal

feelings, you would probably walk out a free man.” Trial Tran-

script, p. 105A.

5. Appendix A, Page A6.

J

i

Mansfield went further, stating that the questions “were

improper because they asked the jury to assume the

Defendant to be guilty of the very charge on trial... 6

Nevertheless, the majority found that the admission of

the questions was within the discretion of the trial

court,’ while the concurring opinion concluded that, since

no “prejudice” had been shown, the error of allowing the

questions to be asked was “harmless” ®

After the affirmance by the Second Circuit, this

Petition for a Writ of Certiorari issued.

REASONS FOR THE ALLOWANCE OF THE WRIT

This case involves the flagrant denial by a United

States Attorney and the trial court of Petitioner's funda-

mental right to the presumption of innocence. Incredibly,

the Second Circuit has put its tacit stamp of approval

upon questions addressed to character witnesses, when

substantially identical questions have for decades in the

vast majority of state and federal jurisdictions been held

to violate a defendant's right to be presumed innocent.?

The Second Circuit opinion not only conflicts with the

Fifth Circuit opinion in United States v. Candelaria-

6. Appendix A, page A7.

7. Appendix A, page A6.

8. Appendix A, page A7.

9. United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977);

Sexton v. State, 312 So.2d 71 (Ala. 1975); Craft v. Mississippi,

181 So.2d 140 (Miss. 1965); Diggs v. State, 88 S.W.2d 103 (Tex.

1935); Gaugh v. Commonwealth, 87 S.W.2d 94 (Ky. 1935).

Gonzalez, 547 F.2d 291 (5th Cir. 1977) and with this

Court’s discussion concerning the presumption of

innocence in Estelle v. Willaims, U.S. , 96

S. Ct. 1691 (1976), but it also conflicts with the basic

notion of a fair trial and with the rule that the filing of

an indictment cannot, in itself, be used to deny or dilute

the defendant’s right to be presumed innocent.

I.

TH’. DECISION BELOW DIRECTLY CON-

FLiCTS WITH THE OPINION OF THE FIFTH

CIRCUIT COURT OF APPEALS IN UNITED

STATES V. CANDELARIA-GONZALEZ, 547

F.2D 291 (STH CIR. 1977).

As a result of the decision of the Second Circuit

there now exists a square and embarrassing conflict

between the Second Circuit, which considers the

questions asked by the Government as being properly

admitted within the discretion of the trial court, and the

Fifth Circuit, which considers approval of the questions

by the trial court to be an abuse of discretion and

prejudicial error which denies the defendant his constitu-

tional rights. United States v. Candelaria-Gonzalez, supra.

The majority opinion of the Second Circuit attempts to

distinguish Candelaria- Gonzalez by stating that in

Candelaria-Gonzalez the questions to character witnesses

deal with witnesses who testified concerning the

defendant’s reputation in the community, whereas in the

present case, the questioning concerned the character

witnesses’ own opinions about [etitioner’s character

traits. Petitioner submits that the purported “distinction”

is not meaningful and does nothing to ease the clear

conflict which now exists between the Circuits.

It is true that the character witnesses in Candelaria-

Gonzalez appear to have testified concerning the

defendant’s reputation in the community, while the

character witnesses in this case testified as to their

opinions concerning Petitioher’s character. The Second

Circuit’s opinion, however gives no reason whatsoever

to explain why this difference between the two cases

should lead to a different result. The Second Circuit's

opinion indicates that more liberal cross-examination is

permissible when a witness states his own opinion,

especially if he is an expert witness. This has no

relevance to the case at bar, in which none of the

character witnesses were expert witnesses, and the

analysis by the Second Circuit begs the question of

whether more “liberal” cross-examination can be allowed

to deprive a defendant of his right to the presumption of

innocence and due process of law. The Second Circuit

also appears to rely upon Rule 405 of the Federal Rules

of Evidence, but certainly Rule 405 was not intended to

abrogate the presumption of innocence or to permit

questions to be asked which rest upon an assumption of

guilt!

10

Besides, it has been recognized by the draftsmen of

Rule 405 that a character witness's testimony concerning

a defendant's reputation in a community always has, in

fact, been that witness’s opinion of the defendant’s

reputation in the community, and has therefore been

opinion evidence “in disguise”. Thus the purported

distinction between “reputation” testimony and “opinion”

testimony is shown to be meaningless by the draftsmen

of the Federal Rules of Evidence.)

The language of the Fifth Circuit in Candelaria-

Gonzalez is, in any event, clear and unambiguous,

leaving no room for a facile distinction between “reputa-

tion” testimony and “opinion” testimony.

Il.

THE DECISION BELOW DIRECTLY CON-

FLICTS WITH THIS HONORABLE COURT'S

STATEMENTS AS SET FORTH IN ESTELLE

V. WILLIAMS ___ U.S. ___., 968. CT.

1691 (1976).

This Court has always emphasized the importance of

the presumption of innocence in a criminal trial. In Coffin

v. United States, 156 U.S. 432 (1895) this Court said:

“The principal that there is a presumption

of innocence in favor of the accused is the un-

doubted law, axiomatic and elementary, and its

10. Notes of Advisory Committee on Proposed Rules, 28 U.S.C.A.,

Federal Rules of Evidence, Rule 405, p. 148.

11

enforcement lies at the foundation of the admin-

istration of our criminal law.” (Emphasis

supplied.) 156 U.S. at 453.

In Estelle v. Williams, supra, this court held that a

defendant who fails to object to being tried in prison

clothes, and who cannot present sufficient reason for

failure to raise the issue before trial, cannot complain

that his right to be presumed innocent was violated. Mr.

Chief Justice Burger, after pointing out that the pre-

sumption of innocence constitutes a basic component of a

fair trial, went on to say:

“[Tjo implement the presumption, courts

must be alert to factors that may undermine the

fairness of the fact-finding process. In the

administration of criminal justice, courts must

carefully guard against dilution of the principle

that guilt is to be established by probative evi-

dence and beyond a reasonable doubt (citation

ommitted). The actual impact of a particular

practice on the judgment of jurors cannot always

be fully determined, but this Court has left no

doubt that the probability of deleterious effects

on fundamental rights calls for close judicial

scrutiny.” (Citation omitted.) 96 Sup. Ct. at

1693.

In this case, the Second Circuit, while recognizing

that the prosecutor’s questions assuming Petitioner's

guilt should not have been asked, totally ignored the

teaching of Estelle, and stated that the trial court could

allow the questioning in the exercise of its discretion.

12

The concurring opinion, recognizing that the questions

asked the jury to assume Petitioner's guilt, said that the

questioning constituted “harmless error” because Peti-

tioner did not “show prejudice.” Estelle does point out

that some procedures which are contrary to the

presumption of innocence may constitute harmless error

in some cases. Obviously, for example, if a man is being

tried for escape from the penitentiary, it cannot be too

prejudicial if he is tried in prison clothes! The fatal flaw

in the Second Circuit's decision is that it put the burden

on Petitioner to prove prejudice. This is directly contrary

to the holding in Chapman v. California, 386 U.S. 18

(1967), in which this Court stated:

“(Blefore a federal constitutional error can

be held harmless, the court must be able to

declare a belief that it was harmless beyond a

reasonable doubt.” 386 U.S. at 24.

The burden is not on Petitioner to show prejudice

but upon the Government to prove beyond a reasonable

doubt that no prejudice resulted from the denial of

Petitioner's fundamental rights to a fair trial and the

presumption of innocence.

Here there was no waiver as in Estelle and certainly

no showing of “harmless error”. The nature of the error

here is quite different from that considered by this Court

in Estelle. When a defendant goes to trial in jail clothes,

neither witness nor jury is expressly asked to assume

that the defendant is guilty. In this case, however, the

itt

Pt <

13

witnesses and the jury were asked to assume Petitioner's

guilt. Petitioner submits that the severe prejudice

resulting from the prosecutor asking the jury to assume

the Petitioner's guilt (as admitted in the concurring

opinion) cannot constitute “harmless error.” In allowing

the questions to be asked, the trial court abused its

discretion and denied Petitioner his right to be presumed

innocent and to a fair trial.

Ii.

THE DECISION BELOW SETS FORTH AN

INTERPRETATION OF RULE 405 OF THE

FEDERAL RULES OF EVIDENCE WHICH

SHOULD BE CORRECTED.

As indicated above, the Second Circuit's decision

holds that Rule 405 somehow justifies the trial court's

decision in this case upon the grounds that the “liberal”

cross-examination envisioned by the Rule, entitles the

Government to ask questions of a defendant's non-expert

character witnesses which assume a defendant's guilt.

The Second Circuit's decision, if allowed to stand, will

lead to confusion as to the scope of Rule 405 and will

have a deleterious effect upon the administration of

justice in the Federal Courts. This Honorable Court,

which has an interest in the uniform administration of

justice in the Federal Courts and in the correct inter-

pretation of the Federal Rules of Evidence, should

therefore act to correct this anomalous decision.

14 °

WHEREFORE, Petitioner prays that a Writ of

Certiorari issue.

Respectfully submitted.

JAMES C. LANG

Fourth Floor

Thurston National Building

Tulsa, Oklahoma 74103

Attorney for Petitioner

Of Counsel:

Sneed, Lang, Trotter,

Adams, Hamilton & Downie

Fourth Floor

Thurston National Building

Tulsa, Oklahoma 74103 APPENDICES

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Se ond Circuit

No 801 — September Term, 1976

(Argued February 25, 1977 Decided April 18, 1977.)

Docket No. 76-1497

UNITED STATES OF AMERICA,

Appellee,

vs.

DUDLEY D. MORGAN, JR..,

Defendant-Appellant.

Before:

Mansfield and Van Graafeiland, Circuit Judges,

and Mishler, District Judge,*

Appeal from a judgment convicting defendant of viola-

tions of 18 U.S.C. §1341 and 15 U.S.C. §§77q (a) and 78)

(b) after a jury trial in the United States District Court

for the Southern District of New York, Wyatt, J.

Affirmed.

JAMES C. LANG, Tulsa, Oklahoma (Sneed,

Lang, Trotter & Adams, Tulsa, Oklahoma,

of Counsel), for Defendant-Appellant.

* Chief Judge, Eastern District of New York, sitting by designation.

A2

ALAN M. GOLDSTON, Special Attorney, U.S.

Department of Justice (Robert B. Fiske,

Jr., U.S. Attorney for the Southern District

of New York; Audrey Strauss, Assistant

U.S. Attorney, of Counsel), for Appellee.

VAN GRAAFEILAND, Circuit Judge:

After a jury trial in the United States District Court

for the Southern District of New York, appellant was

convicted on eleven counts of mail fraud, 18 U.S.C.

§1341, and on two counts of engaging in fraudulent,

deceptive and manipulative securities transactions, 15

U.S.C. §§77q (a) and 78j(b). We affirm.

Appellant was the managing partner of a brokerage

firm in Tulsa, Oklahoma, and the corporation whose

stock he was charged with mishandling was Display

Sciences, Inc. Display was incorporated in New York in

1968 and went public in 1970. It was engaged in the

design and manufacture of large-screen te« vision projec-

tion equipment but found this to be financia.iy unreward-

ing and was forced into receivership in 1971. The

Government's proof established that appellant, who had

invested heavily in the corporation, sold a quantity of the

company’s stock which was unregistered without

disclosing the lack of registration and without disclosing

the fact that the company was in receivership. In

addition, misstatements were made concerning the

number of shares outstanding and the status of negotia-

tions between Display and the State of Connecticut for a

contract covering off-track betting installations.

Appellant’s defense, based on asserted lack of

knowledge and good faith, was rejected by the jury; and

appellant does not seriously contend that the facts were

insufficient to warrant this determination. His appeal is

A3

based instead upon several evidentiary rulings which he

contends were prejudicially erroneous.

The first of these arises out of a telephone conversa-

tion between the defendant and Frank Dell’Aglio, the

founder of Display Sciences, Inc. and Chairman of its

Board, who was called as a government witness.

Dell’Aglio testified that, during a telephone conversation

with defendant concerning Display’s deteriorating finan-

cial condition, defendant was very angry. When

admonished by the coyrt to state what defendant had

said, rather than advancing his own opinion or conclusion

concerning defendant’s state of mind, the witness quoted

defendant as having said:

[Y]Jou know you have a Mafia up there, we have

an Oklahoma Mafia here.

Appellant contends that the court’s refusal to strike

this testimony was reversible error. We disagree. The

subject was not pursued, and it is far from clear what an

“Oklahoma Mafia” is. Moreover, no attempt was made to

establish any connection between the defendant and this

organization, ‘f such it was. In fact, on summation, the

prosecutor described defendant's remark as _ merely

another example of his “puffing and misstatements”. We

find no ground for reversal here. See United States v.

Schwartz, Dkt. No. 76-1324, (2d Cir. Jan. 25, 1977), slip

opin. 1535, 1542-44; United States v. Polizzi, 500 F.2d

856, 888 n.54 (9th Cir. 1974), cert denied, 419 U.S. 1120

(1975).

The second ruling complained of occurred during the

Government's cross-examination of one of defendant's

character witnesses. After this witness had testified

concerning appellant’s reputation for honesty, integrity

and truthfulness and had stated his own favorable

opinion as to these character traits, he was asked if his

opinion would change if appellant knew that Display was

A4

in receivership and didn't disclose that fact to his

customers. Appellant contends that this question was

prejudicially improper, because it was not confined to the

time period prior to the incidents for which he was being

tried and because it forced the witness and invited the

jury to assume that he was guilty.

Appellant’s “time period” argument can be quickly

disposed of. When a witness, as here, testifies concern-

ing the defendant’s then existing traits of honesty and

veracity, cross-examination may include acts up to the

time the witness testifies. United States v. Kelner, 534

F.2d 1020, 1028 (2d Cir.), cert. denied, 45 U.S.L.W. 3431

(Dec 14, 1976); United States v. Lewis, 482 F.2d 632, 640

n.44 (D.C.Cir. 1973).

Appellant's able counsel has cited a number of cases

from state courts which hold that hypothetical questions

of the general nature of the one asked by the Govern-

ment herein are prejudicially improper. However, in each

of these the subject under discussion was the reputation

of the defendant in the community! Here, the matter

being pursued was the opinion of the witness concerning

the defendant’s character. When a witness is permitted

to state his own opinion on a matter in issue, as he is

now under Rule 405 of the Federal Rules of Evidence,

some latitude in cross-examination must be allowed.”

1. Prior to the enactment of the Federal Rules of Evidence, a so-

called “character witness” was not permitted to give his own

opinion of the defendant's character but was limited to testimony

concerning his reputation. Michelson v. United States, 335 U.S.

469, 477 (1948). Rule 405 of the Federal Rules provides in part that

in all cases in which evidence of character or a trait of character of

a person is admissible, proof may be made by testimony in the

form of an opinion. Counsel cannot, therefore, always rely upon

decisions applying the “archaic” and “paradoxical” law, Michelson,

supra, at 486, which preceded the Rules.

2. United States v. Candelaria-Gonzales, 20 Crim.L.Rep. 258 (5th

Cir. Feb. 18, 1977) is not to the contrary because it deals with a

witness who testified concerning defendant's reputation in the

community.

cid

ane

A5

Opinion testimony of expert witnesses has traditionally

been. given in response to hypothetical questions based

upon the evidence in the case, United States v. White,

124 F.2d 181, 185-186 (2d Cir. 1941), and this form of

questioning may properly be used on cross-examination

as well as direct. Stahl v. United States, 144 F.2d 909,

913 (8th Cir. 1944).

The argument has long since been laid to rest that,

where an expert expresses an opinion on an assumed

state of facts, he is usurping the province of the jury.

Guzik v. United States, 54 F.2d 618, 619-20 (7th Cir.

1931), cert. denied, 285 U.S. 545 (1932); Tinkoff v.

United States, 86 F.2d 868, 879-80 (7th Cir. 1936), cert.

denied, 301 U.S. 689 (1937); Myres v. United States, 174,

F.2d 329, 336 (8th Cir.), cert. denied, 338 U.S. 849

(1949); Fed. Rules Evid. Rule 704. Wigmore calls this

agrument a “bugbear”, and a “mere bit of empty

rhetoric” which “has done much to befog bench and bar.”

Wigmore on Evidence §§673, 1920 (1940). As pointed out

by the court in Guzik, supra, the jury still has to

determine the controverted issue of whether the

assumption which the witness has made is correct. Time

and again, experts are asked hypothetical questions

which assume the very facts upon which the defendant's

guilt is predicated. If the question is based upon the

evidence, it may be permitted in the exercise of the trial

judge’s discretion. Heller v. United States, 104 F.2d 446,

449 (4th Cir. 1939). Indeed, in technical cases such as

those involving tax fraud, it is difficult to visualize how

the Government could prove its case in any other

manner. See United States v. Caserta, 199 F.2d 905, 908

(3d Cir. 1952). “So long as proper guidance by a trial

court leaves the jury free to exercise its untrammeled

judgment upon the worth and weight of testimony, and

nothing is done to impair its freedom to bring in its

verdict and not someone else’s we ought not to be too

finicky or fearful in allowing some discretion to trial

A6

judges in the conduct of a trial and in the appropriate

submission of evidence within the general framework of

familiar exclusionary rules.” United States v. Johnson,

319 U.S. 503, 519-20 (1943).

We conclude, therefore, that the asking of the

hypothetical question at issue herein, based as it was

upon testimony already offered, was not prejudiciously

improper so as to mandate reversal. It introduced

nothing into the case which was not already before the

jury. In rulings on character evidence, the District Court

has wide discretion and will be reversed only upon a

clear showing of prejucicial abuse. United States v.

Dibrizzi, 393 F.2d 642, 645 (2d Cir. 1968). We find no

such showing in this case. Cf. United States v. Null, 415

F.2d 1178, 1179-80 (4th Cir. 1969).

It does not follow from this holding that we approve

of the question which was asked. Because it is too early

in the history of Rule 405 to predict how much use

ingenious counsel will make of opinion testimony from

witnesses who may qualify as experts on traits of

character, we are reluctant to prescribe an evidentiary

rule which will inhibit full cross-examination of any such

expert. Insofar as non-expert character witnesses are

concerned, however, we believe that the probative value

of a hypothetical question such as the one at issue herein

is negligible and that it should not be asked. The jury is

in as good a position as the non-expert witness to draw

proper inferences concerning the defendant's character

from its own resolution of the issue. Cf. Wigmore, supra,

at §679.

Finally, appellant contends that the District Court

erred in refusing to admit testimony concerning possible

representations made to other witnesses by officers of

Display Sciences, Inc. Relevancy of proffered evidence is

a matter largely within the discretion of the trial court,

Hamling v. United States, 418 U.S 87, 124-25 (1974);

OE Bent. er 2A

ee

AT

United States v. Corr, 543 F.2d 1042, 1051 (2d Cir.

1976). There was no abuse of the court’s discretion in

this case. See Muschany v. United States, 324 U.S. 49,

58 (1945).

The judgment appealed from is affirmed.

MANSFIELD, Circuit Judge (concurring):

I concur in Judge Van Graafeiland’s well-reasoned

opinion. In addition, I believe that the questions put by

the prosecutor to the character witnesses were improper

because they asked the jury to assume the defendant to

be guilty of the very charge on trial, i.e., that he sold

stock to his customers without disclosing that the

company was in receivership. Since character eivdence is

admitted only as bearing upon guilt or innocence, an

opinion based upon the assumption that the defendant is

guilty cannot have any probative value in deciding that

issue. However, in the absence of any showing of

prejudice, the error was harmless in the present case.

A8

APPENDIX B

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

As a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York, on

the twenty-ninth day of June, one thousand nine

hundred and seventy-seven.

United States of America,

Plaintiff-Appellee,

Vv.

Victor Danenza, Frank Dell’Aglio, K. Cyrus Melikian,

Michael Brodsky, Dudley Morgan,

Triple Management Inc.,

Defendants

Dudley Morgan,

Defendant-Appellant.

76-1497

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

counsel for the appellant Dudley Morgan, and no active

judge or judge who was a member of the panel having

requested that a vote be taken on said suggestion,

Upon consideration thereof, it is Ordered that said

petition be and it hereby is DENIED.

ag >

VING R. KAUFMAN,

Chief Judge