Petition — Smyth v. United States

: AUG 19 1677

IN THE | |

MICHAEL N 0 1 1 coy

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77 28 8

LEWIS MILLER SMYTH, III.

Petitioner,

VERSUS

|

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOSEPH A. CALAMIA

Suite 1300 Bassett Tower

El Paso, Texas 79901

CHARLES MICHAEL MALLIN

Suite 1300 Bassett Tower

El Paso, Texas 79901

WOODROW W. BEAN, SR.

1551 Montana Avenue

El Paso, Texas 79902

ATTORNEYS FOR PETITIONER

TABLE OF CONTENTS

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Constitutional Provision Involved 3

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REASONS FOR GRANTING THE WRIT

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TABLE OF AUTHORITIES

CASES: Page

Barker v. Wingo, 407 U.S. 514, 531 92 S.Ct.

2182, 2192 33 L Ed 24 101 (1% ù¶)“:: cccccccccces 11

Berger v. United States, 295 U.S. 78, 79 L Ed

TPW A ] ü; ̃] Nin4..

Gravitt v. United States, 523 F. 2d 1211 (Sth

D ̃˙ —!. ces baseseanes

Hanford v. United States, 249 F. 2d 2999998.

Holland v. United States, 328 U.S. 121. 99

, in ed i wainekad ee

Lloyd u. United States, 226 F.2d 9 99

Santobello v. New York, 404 U.S. 262, 92

BEL. GS, GP, FO LBs BO GST CIGTED .

United States v. Dawson, 486 F. 2d 1326 (Sth

Cir. 1973)

United States v. Ewell, 383 U.S. 116 S.Ct.

R · e

United States v. Golden, 436 F. 2d 941 (1971)

% ˙⁵J—x onen

United States v. Jackson, 504 F. 2d 3337,

889 8th Cir. 1974 (Cert. denied 420 U.S.

964 95 S.Ct. 1356, 43 L Ed 2d 442 1975) ..............

TABLE OF AUTHORITIES (Continued)

CASES: Page

United States v. Johnson, 319 U.S. 503, 83

Es ee 12, 13

United States v. Marion, 404 U.S. 307, 92

S.Ct. 455, 30 L Ed 2d 468 (1971777777777) 7,8,9

United States v. Stamp, 458 F.2d 759 (US

8k rr Terre rrr TET TTI Tere Tire 11

CONSTITUTIONAL AMENDMENT:

Amendment V. U.S. Constitution 3

STATUTES:

i...... 3. App. D

r Cec euwenes 3, App. D

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

LEWIS MILLER SMYTH, III.

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, LEWIS MILLER SMYTH, III, petitions for

a writ of certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered in this case on

the 18th day of May, 1977. Petitioner’s motion for rehearing

and for rehearing en banc was denied on July 20, 1977.

OPINION BELOW

The opinion of the court of appeals (App. A, pp. A-1 - A-12

infra) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. A, pp. A-1 - A-12

infra) was entered on May 18, 1977.

The jurisdiction of this Court is involved under 28 U.S.C.

§ 1254 (1).

QUESTIONS PRESENTED

Did the Fifth Circuit error in affirming the district court’s

action in refusing to dismiss the indictment against Petitioner,

LEWIS MILLER SMYTH, III, because of the long and undue

delay between the F. B. I. initial investigation and the return of

the final indictment which resulted in the loss of evidence

because of the «ction of the agents of the United States, thus,

depriving Petitioner of a fair trial and due process under the

Fifth Amendment of the Constitution of the United States of

America.

Whether the Fifth Circuit erred in affirming the district

court’s action in admitting into evidence certain exhibits vari-

ously referred to as computer runs or printouts as summaries of

other evidence prepered by the F. B. I. which were encumbered

by powerfully prejudicial conclusionary captions” such as

“original false”, “falsified difference and false money

thereby depriving Petitioner of a fair trial and due process of

law under the Fifth Amendment to the United Staies Constitu-

tion.

Whether Petitioner, SMYTH, was substantially prejudiced

and deprived of a fair trial by the closing argument of the

United States Attorney to the effect that the jury’s tax money

was being “kicked in here” and that somebody should be held

responsible.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution:

1. Amendment V to the United States Constitution pro-

vides:

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

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

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

actual service in time of War or public danger; nor

shall any person be subject for the same offense

to be twice in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

STATEMENT

LEWIS MILLER SMYTH, III. Petitioner herein, was indicted

on August 7, 1975, along with five others for violations of

Title 18 USC § 286, and Title 18 USC § 287 and 2. He allegedly

on or about July, 1968, and continuing thereafter to or about

September 15, 1971, conspired to knowingly, willfully and

unlawfully to defraud the United States, the United States

Department of Defense and AVSCOM, by obtaining and aiding

the obtainment of the payment and allowance of false,

fictitious and fraudulent claims, and that said Petitioner did

knowingly, willfully and unlawfully make and caused to be

made and presented and caused to be presented false, fictitious

and fraudulent claims to the United States Army Aviation

Material Command of the United States Department of Defense,

a department, a department and agency of the United States.

The indictment was in eight (8) counts, the first count charging

the conspiracy and counts 2 through 8 charging the substantive

crime or false, fictitious or fraudulent claims. A jury trial was

had commencing on March 22, 1976, before the Honorable

Leo Brewster, where the Petitioner entered a plea of not guilty

as to all eight (8) counts of the indictment. The jury found

Petitioner guilty on all eight (8) counts on April 1, i976, and

the Court sentenced him to five (5) years imprisonment on

each count, the Court further ordered that said sentences were

to run concurrently.

The evidence at trial reflects tha, Petitioner LEWIS MILLER

SMYTH, III. was an employee and cer of N.H.A., Inc., a

Texas corporation, that had two contracts in regard to technical

publication with the United States Army Material Command of

the United States Department of Defense. The allegations

concern vouchers filed under the aforementioned contracts

numbered respectively DAA-68-C-0784 (G) dated September 7,

1967, later modified to contract number DAAI0 168-0002263)

and contract number DAAJ01-71-0081(P3L) dated September

21, 1970, (Gov. Ex’s 2 and 3). The Government relied heavily

upon the testimony of Jack Curtis Turner, named as an un-

indicted co-conspirator in the indictment, to infer or suggest a

meeting to form the alleged conspiracy.

The Government introduced into evidence numerous business

records of N.H.A., Inc., these records were introduced through-

out the entire trial and consisted of the contracts involved,

Government Exhibits numbers 2 and 3. The time cards and

labor distribution cards which were allegedly duplicated and

computer runs.

At the trial Mr. Marvin Asbell employed by the Federal

Bureau of Investigation as a computer systems analyst, super-

visory computer systems analyst testified to certain exhibits

to wit: Government Exhibits 32“ and 33“ and Government

Exhibits 34 through 40A“, which were Government sum-

maries and printouts of records of N.H.A., Inc., sent to the

F.B.I. in Fort Worth. These summaries and printouts were

introduced into evidence over trial counsel’s objection. The

computer summaries were divided into various divisional classi-

fications among them were “voucher”, “category” (original,

false), original data“, “falsified data“, “falsified difference“;

trial counsel Anderson timely objected to the introduction of

such evidence. Trial counsel Anderson further objected to the

admission of any records belonging to N. H. A., Inc., for the

purpose of preserving Petitioner’s motion to dismiss the indict-

ment which was heard on the Friday preceding the indictment

with regard to the Government’s failure to obtain all the records

of N.H.A. As the lapse of time between the initial investigation

and the final indictment, and the subsequent loss of records of

N.H.A. was highly prejudicial to Petitioner SMYTH. The Court

granted Petitioner a running objection on this objection.

Petitioner SMYTH along with the other co-defendants filed

a motion to dismiss the indictment because of the undue

delay between the time the investigation in the case at bar

commenced and the return of the indictment in August of

1975, as said delay seriously prejudiced Petitioner’s right to a

fair trial because of the loss of evidence.

On March 19, 1976, the aforementioned motion was heard

wherein testimony was taken from Ray Buras, who was em-

ployed as a consultant with N.H.A. in January of 1976, and

other pertinent witnesses.

The evidence at that motion reflects that Ray Buras testified

that he had told the Government that N.H.A. had computer

runs which were important to audit the accounts of N.H.A.

Buras also stated that N.H.A. records were important because

once they received the information back from the Government,

“basically our work has just begun because we had to do a

— Jot of verification. Buras further stated that Malon Jennings

had told him that some of N.H.A.’s records were missing and

that some of the computer runs had been thrown out.

Albert Lee Cochran, the Secretary and Treasurer of N.H.A.,

Inc., related that some of the computer runs had been thrown

out and that these computer runs and records had probably

been destroyed at the end of 1973 or beginning of 1974, and

Mr. Ballard, Vice President of the total data division, destroyed

the records while he was doing away with miscellaneous type

paper and things that supposedly had no relevance whatsoever

to the activities of the company, and that he’d have writers and

some illustrators in the area where the records were kept and

he was trying to make room.

Malon Jennings, Special Agent for the F.B.I. in Fort Worth

and case agent, testified that the investigation in the case at bar

commenced around early November of 1971. That he appeared

before the grand jury in this cause in 1972, and that he had

picked up records concerning December 18, 1967, through

August 31, 1971. That these records were picked up by him

in November 1972. Jennings later at trial testified he received

additional time cards from N.H.A. in July of 1974. There were

probably two other grand juries in 1974.

Buras also related that in running an audit it would be

necessary to include all employees’ time cards and labor distri-

bution runs in determining the accuracy of all work done and

all work charged and that some of these records were thrown

out.

The Government’s attorney in the closing argument argued

to the jury that the jury’s tax money was being “kicked in

here” the Court sustained the objection. However, the attorney

for the Government immediately asked the jury to hold some-

body responsible and told them you decide who is to be held

responsible for this.”

REASONS FOR GRANTING THE WRIT

ISSUE NUMBER ONE

The Fifth Circuit by affirming the case at bar has decided an

important Federal Constitutional question that is in apparent

conflict with principles announced by this Court in UNITED

STATES V. MARION, 404 U.S. 307, 92 S.Ct. 455, 30 L Ed 2d

468, (1971), in that the United States Government's pre-

indictment delay resulted in the loss of evidence because the

agents of the United States failed to pick up and sequester

pertinent records. Thus, depriving Petitioner of a fair trial and

due process of law under the Fifth Amendment to the United

States Constitution.

The basic question which this Court must determine is

whether Petitioner was deprived of a fair trial and due process

of law because of the undue delay between the Government's

initial investigation commencing in November of 1971. and

the final indictment in August of 1975. Petitioner filed his

motion to dismiss the indictment because of the undue delay

between the time the investigation began and the return of

the indictment.

Ray Buras, who was a consultant with N.H.A., Inc., in

January of 1976, testified that the records which are the

subject of this issue were at the company’s Jacksboro Facility

near Fort Worth, Texas, and that he was first contacted, con-

cerning the N.H.A. investigation, by the F.B.I. in January of

1972. The importance of the lost records cannot be overly

stressed as the records kept track of labor distribution that

were accumulated by job number, and the cost accumulated

within a job would give management a computer printout as

to the total number of hours worked and the total charges to

that particular job. The computer print had a record of both

time cards, there were separate printouts for the labor distribu-

tion and separate printouts for the W-2 information. Buras

further related that it was very difficult without this computer

run to determine whether a particular segregated group were

all the hours performed on a contract or all the people who

worked on that contract.

On November 27, 1973, Special Agent Malon Jennings went

to N.H.A. and took possession of some cards that were in an

office occupied by Ray Buras, and received additional time

cards from N.H.A. in July of 1974. Jennings had no idea what

happened to the time cards that he left at N.H.A. Those cards

were not available at trial. Jennings testified that he took the

time cards given to him by Ray Buras, the then comptroller

of N.H.A. and sent them to Washington, D.C.

The time cards that were first sent to Washington were

incomplete and Jennings was depending on someone else to

furnish him the records. If these records furnished him were

incomplete then, whatever information he placed in the com-

puter for analysis would also be incomplete.

In UNITED STATES V. MARION, supra, this Court recog-

nized that statutes of limitations do not fully define suspects’

rights to be speedily accused and the Governmental post prose-

cution delay may violate a defendant's right to due process

under the Fifth Amendment to the United States Constitution.

The standard announced in MARION was as follows:

“Thus, the Government concedes that the Due

Process Clause of the Fifth Amendment would

require dismissal of the indictment if it were shown

at trial that the pre-indictment delay in this case

caused substantial prejudice to appellees’ rights to a

fair trial and that the delay was an intentional device

to gain tactical advantage over the accused. * * *

However, we need not, and could not now, determine

when and in what circumstances actual prejudice

resulting from pre-accusation delays requires the

dismissal of the prosecution.”

The Fifth Circuit Court of Appeals in GRAVITT V. UNITED

STATES, 523 F.2d 1211 (Sch Cir. 1975), recognized that

although deliberate delay to prejudice the defense is weighed

against the Government, this Court will consider the Govern-

ment’s negligent delay. Under MARION, supra, SMYTH's

Fifth Amendment claim involves “a process of balancing the

reasonableness of the delay against any resultant prejudice to

the defendant.” UNITED STATES V. JACKSON, 504 F.2d

3337, 339 8th Cir. 1974, (Cert. denied 420 U.S. 964 95 S.Ct.

1356, 43 L Ed 2d 442 1975).

First the initial investigation commenced early in November

of 1971, and the indictment was returned on August 8, 1975,

thus, there was more than three years and eight months

between when the initial investigation began and when the

indictment was returned.

It must be remembered that Petitioner SMYTH left N. H. A.

Inc., early September 1970, and by doing so he had no control

over the records, documents, and computer runs which were

destroyed in the end of 1973 or the beginning of 1974.

Petitioner SMYTH suffered substantial actual prejudice” as

was reflected by the testimony of Don Warren, a certified

public accountant. Warren testified that he examined Defen-

dant’s Exhibit number 26 which was a daily labor distribution

report for the week ending 8-31-69, and that that record

showed total hours worked on various jobs of N.H.A., Inc.

which included the Army Jobs in question. That he then

referred Defendant’s Exhibit number 26 back to the F. B. I. com-

puter printout and found that there were at least eleven (11)

employees who were listed under Army jobs that were not on

the F. B. I. computer printouts, and that there were 198 hours

which were not included in the Government's listing for Army

Job hours worked. This resulted in 65% of unaccounted labor

hours for that one week.

Hence, it can be seen that if error in one week of 65%, the

additional missing records could have demonstrated that the

F. B. I. computer runs were in substantial error, throughout, all

to Petitioner’s SMYTH’s prejudice. Harm to Petitioner SMYTH

was further shown in the testimony of Lou Asbell, computer

systems analyst in the employment of the F. B. I., in his testi-

mony wherein he admits that Army time shown of the

Defendant’s Exhibit number 26 a daily labor distribution

report did not appear on the reconstructed F. B. I. computer run.

The action on the part of the Government was of such a

prejudicial nature that the undue delay herein was so severe that

it substantially impaired the Defendant's ability to defend

himself. UNITED STATES V. GOLDEN, 436 F.2d 941 (1971)

(8th Cir.); UNITED STATES V. EWELL, 383 U.S. 116 86 S.Ct.

773 15 L Ed 2d 627, (1966). For in 1972 evidence had been

presented to a grand jury in regard to N.H.A., Inc., and there

were probably two grand juries in 1974 where evidence was

presented. And yet, no action was taken on behalf of the

United States to secure the documents in question even after

the F. B. I. had been informed by Ray Buras, of the importance

of those documents both for Governmental use and for N.H.A.,

Inc. so that the F.B.I. computer runs could be verified as to

correctness or that such records were necessary to prepare

and accurate audit.

In the case at bar, the Government knew at the very least

that in 1972 that they were going to seek prosecutions in this

matter as they brought this case before a 1972 grand jury. Yet,

no action was taken to pick up and sequester these pertinent

-10-

records. Such culpable action on the part of the United States

Government at the very least amounts to gross negligence as

there was no communication between the F.B.I. and the United

States Attorney’s Office as to the fact that these documents

should be sequestered, rather than a piece meal investigation.

In other words, such failure on behalf of both the F. B. I. and

the United States Attorney's Office to conduct a proper investi-

gation and pick up all pertinent documents was akin to a failure

to let “the left hand know what the right hand is doing or had

done.“ The fact that this Government inaction may have been

“inadvertent” does not lessen its impact, as Petitioner SMYTH

was effectively prevented from adequately defending himself.

SANTOBELLO V. NEW YORK, 404 U.S. 262, 92 S.Ct. 495,

499, 30 L Ed 2d 427 (1971).

As this Court stated in BARKER V. WINGO, 407 U.S. 514,

531 92 S.Ct. 2182, 2192 33 L Ed 2d 101 (1972):

A deliberate attempt to delay the trial in order to

hamper the defense should be weighed heavily against

the Government. A more neutral reason such as

negligence or over crowded courts should be weighed

less heavily BUT NEVERTHELESS SHOULD BE

CONSIDERED SINCE THE ULTIMATE RESPON-

SIBILITY FOR SUCH CIRCUMSTANCES MUST

REST WITH THE GOVERNMENT RATHER THAN

WITH THE DEFENDANT.” (emphasis added)

Further, the Government did not meet its burden, for where

there is a showing of “substantial delay” in the return of an

indictment, that is, when the length of delay is of greater dura-

ation than usually attributable to the normal processes of the

judicial system the Government must show that such delay did

not substantially prejudice the defendants, UNITED STATES

V. STAMP, 458 F.2d 759 (US App. D.C.).

11

ISSUE NUMBER TWO

By affirming the case at bar the Fifth Circuit has decided an

important Federal Constitutional question that is in conflict

with principles announced by this Court in UNITED STATES

V. JOHNSON, 319 U.S. 503, 83 L Ed, 63 S.Ct. 1233, and at the

very least, the lower court in the case at bar departed from a

course of judicial proceedings as to deprive Petitioner of a fair

trial calling for this Court to exercise its supervisory power over

the federal courts.

During the course of Petitioner’s trial when the Government

was presenting its case in chief and when Mr. Marvin Asbell, a

computer system analyst supervisory computer analyst with the

F. B. I., the Court admitted into evidence certain Government

exhibits, to-wit: Government Exhibits “32” and “33” and 34

through “40A”. These computer runs or printouts were

admitted as summaries of other evidence, as the Court so

instructed the jury over trial counsel’s timely objection. These

computer runs or printouts were divided into various divisional

classifications, “voucher”, “category (original, False)“, “‘falsi-

fied data”, “falsified difference”, false money” and “false

hours.” It is Petitioner’s contention that the labeling in these

exhibits was of such a nomenclature that the conclusionary

captions so inflamed the jury as to prejudice Petitioner and

deprive him ol a fair trial.

It is Appellant’s contention that these various exhibits which

were F. B. I. computer runs or printouts admitted obstentively

as summaries of other evidence were inadmissible, although

purporting to be accurate summations of evidence, the conclu-

sionary captions were in fact based upon assumptions or

conclusions of the persons who prepared them, as to the weight

to be given such exhibits the province of the jury was invaded,

and the conclusionary labels which were used indeed was so

inflamatory as to constitute prejudicial error, as these exhibits

were deliberately spread before the jury.

The most extensive judicial exposition on the admissibility of

charts and summaries has been developed in those cases dealing

with criminal tax evasion trials. In UNITED STATES V. JOHN-

SON, supra, this Court seemed to sanction the propriety of the

use of hypothetical questions propounded to an expert witness

in a criminal tax evasion case, there the Court believed such a

question does not invade the province of the jury as long as

proper guidance by the trial left the jury free to exercise its

untrammeled judgment upon the worth and weight of the

testimony. However, in HOLLAND V. UNITED STATES, 328

U.S. 121, 99 L Ed 2d 150, 75 S.Ct. 127, decided a decade after

JOHNSON, supra, this Court observed that “bare figures have

a way of acquiring an existence of their own independent of

the evidence which give use to them.“. at 99 L Ed 160, and that

a jury may assume that once the Government has established

the figures in its computations, the crime of tax evasion auto-

matically follows.

In the case at bar, Petitioner along with his co-defendants

were indicted and tried for filing false and fictitious claims, and

the labels which the Government placed upon the named

exhibits were original false, “falsified data“, “faisified differ-

ence”, “false money”, and “false hours”. These labels were

highly conclusionary captions, and once the Government

established the figures in its computations through their expert

witness, Marvin Asbell, it was likely that the jury believed that

the filing of false and fictitious claims automatically followed,

thus, the admission was reversible, considering the type of

charge, and the specific intent which the Government had the

burden to prove beyond a reasonable doubt.

The Government’s entire case was that the Petitioner and his

co-defendants conspired to and did file false and fictitious

claims, and by the inflamatory nomenclature and prejudicial

captions used on these various exhibits there was a complete

takeover of the jury’s function as to whether these were

actually false and fictitious claims filed with AVSCOM. This

amounted to Petitioner’s conviction in a “trial by charts“ as

the trial court permitted the jury’s unrestricted and acceptance

and use of the summaries as a substitute for primary and

independent proof, LLOYD V. UNITED STATES, 226 F. 2d 9.

In LLOYD, the Fifth Circuit warned: at 226 F.2d 17:

Whenever possible, such charts should be confined

in their preparation to strictly mathematical compu-

tations subject to detailed explanation upon the trial

by the testimony of expert Government witnesses,

and they should not be encumbered by such impres-

sive, conclusionary captions as over-statement of

merchandise purchases”, “over-statement of delivery

expenses, “unreported cash receipts of Lloyd's

Bakery”’, “unreported and undeposited cash receipts

invested in United States Savings Bonds“, un-

reported net income of Mr. E. C. Lloyd“, “income

tax unreported and unpaid by Mr. Lloyd’’, such as

were used on the Government’s charts here in dispute

while a prosecution witness may testify as to such

conclusions from his mathematical computations, we

think the danger in permitting the unrestricted use

of such phases upon charts results from a jury’s

natural tendency to accept such unsworn, conclu-

sionary verbiage as authentic, primary proof, instead

of purely in summarization and explanation of sworn

testimony or authenticated documentary evidence.

It is respec’.ully submitted that the above quoted law should

and does apply in the case at bar, that the questioned exhibits

herein should have been confined to strictly mathematical com-

putations without the use of the prejudicial and inflamatory

-14-

nomenclature and captions which was used by the Government.

ment. The Court merely instructed the jury that the F. B. I.

computer runs or printouts were not actual evidence, but were

admitted as summaries of other evidence, and admitted only

for their assistance and convenience in considering the other

exhibits which they purported to summarize. However, this

instruction did nothing to cure the prejudicial error which

occurred.

Furthermore, Petitioner is prejudiced by the fact stated in

issue one concerning the pre-indictment delay which resulted

in the destruction of records which were necessary to verify

the figures which were listed below the “captions” in question

as Petitioner was unable to verify in his defense the accuracy of

the F.B.I. reports thus, both the accuracy of the F. B. I. runs

and the captions, added to the prejudicial error of the F. B. I.

computer runs which were admitted into evidence.

On August 5, 1977, the Fifth Circuit Court of Appeals,

corrected its opinion concerning this issue and strongly empha-

sized Rule 1006 of the Federal Rules of Evidence, and the

Court now tells us that such summaries may be introduced in

evidence even though Rule 1006 does not contain the word

“evidence” and therefore a cautionary instruction was not

necessary as to the fact that said instruction was not evidence.

Petitioner vehemently disagrees with the court’s corrected

opinion.

First, as the Fifth Circuit noted, the word evidence“ is

not used in Rule 1006 and the Rule goes on to state that

“voluminous writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the

form of a chart, summary, or calculation.“ It is Petitioner's

contention that the only correct interpretation of this language

is that charts, summaries, or calculations may be presented

in court only as a jury aid designed to clarify voluminous

26,

documents already in the record and to provide a manageable

prospective for the Jury in its deliberations. To allow summaries

and charts without the documentary evidence is clearly a trial

by “charts and summaries” and denied Petitioner the right to

confrontation and cross-examination. Although he may cross-

examine the preparer, a chart or summary cannot be cross-

examined, especially if the documentary evidence is not

available.

Further, it must be realized in this case, Rule 1006 was not

even complied with as due to the pre-indictment delay, supra

issue one, documents which should have been used to prepare

the charts were not available for inspection by the defense

attorneys and clearly since all documents were not available

to the preparer of the charts and summaries the charts and

summaries were therefore inaccurate.

It must be remembered that it is Petitioner’s contention that

he was denied a fair trial due to the “conclusionary captions”

of the charts and that no act of congress including the Federal

Rules of Evidence can over-ride a defendant's constitutional

rights to a fair trial. The Federal Rule 1006 allows only that

under the proper circumstances that charts, summaries and

calculations may be presented in court. However, this Rule in

no way allowed the characterizations the Government utilized

in the summary headings, and no cautionary instruction could

possibly reduce the prejudicial affect.

-16-

ISSUE NUMBER THREE

By affirming the case at bar the Fifth Circuit has decided an

important Federal Constitutional question that is in conflict

with principles announced by this Court in BERGER V.

UNITED STATES, 295 U.S. 78, 79 L Ed 1314, and at the very

least, the lower court in the case at bar departed from a course

of judicial proceedings as to deprive Petitioner of a fair trial

calling for this Court to exercise its supervisory power over the

federal courts.

During the Government’s closing argument Mr. Sweeny,

the Assistant United States Attorney, argued, “You want to

say we approve of this type of conduct in dealing with the

Government? Let Uncle Sam take the ride, but when you think

about that, think of that, that’s your tax money, that’s your

tax money that’s being kicked in here.” Trial counsel objected,

and the Court instructed the jury not to consider the portion

about their tax money. However, the United States Attorney

immediately thereafter asked the jury to hold somebody

responsible and told them, “You decide who is to be held

responsible for this.“ Trial counsel objected, but was overruled

by the court. It is submitted that although the court instructed

the jury not to consider the portion about their tax money

being kicked in, the harm was already done, and such instruc-

tion could not cure the error.

The Fifth Circuit at page 3210 states: we view the prosecu-

tor’s pitch as an unprofessional and highly improper appeal to

the passion and prejudices of the jurors“, but, because of the

trial court’s instruction and that this was not a close case, the

error was harmless. It is submitted that the Fifth Circuit was

mistaken as to closeness of the evidence and the teachings

of HANFORD V. UNITED STATES, 249 F.2d 295, and

BERGER V. UNITED STATES, supra, be applied.

17.

Here, the United States Attorney called upon the jury to

place responsibility on SMYTH, because someone had to be

fixed with that responsibility instead of finding the Petitioner

guilty beyond a reasonable doubt upon the evidence, which

the Government had adduced at trial. UNITED STATES V.

DAWSON, 486 F.2d 1326, (Sth Cir. 1973). And in the first

part of his argument which was objected to, the United States

Attorney made an improper appeal to convict Petitioner by

preying upon the sympathy of the jurors as taxpayers as their

money was the money which was lost. Petitioner was not

charged with responsibility for the loss of any of the jurors

tax monies. The United States Attorney’s argument was

obviously improper and reversible error for the sole effect of

his summation was to inflame passion of or arouse the jury’s

prejudice by making them the victims of an uncharged crime

instead of keeping them as impartial and open minded finders

of fact.

CONCLUSION

For the reasons stated, the Petition for Writ of Certiorari

should be granted.

espectfully submitted,

OSEPH A. CALAMIA,

Attorney for Petitioner

* aS

CHARLES MICHAEL MALLIN,

Attorney for Petitioner

WOODROW W. BEAN, SR.

Attorney for Petitioner

CERTIFICATE OF SERVICE

I, JOSEPH A. CALAMIA, one of the attorneys for the

Petitioner, LEWIS MILLER SMYTH, III, and a member of the

Bar of the Supreme Court of the United States, hereby certify

that on this the 19th day of August, 1977, I served three

copies of the foregoing Petition for Writ of Certiorari each,

on the following:

1. On Mr. John Sweeney, and Mr. Gerhard Kleinschmidt,

Assistant United States Attorneys for the Northern District of

Texas, by mailing them three copies of the same at their offices,

Federal Courthouse Building, Fort Worth, Texas.

2. On the United States by mailing three copies thereof in a

duly addressed envelope, to the Honorable Robert H. Bork,

United States Solicitor General, United States Department of

Justice, Washington, D.C.

OSEPH A. CALAMIA

-19-

APPENDIX A“

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 76-2314

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LEWIS MILLER SMYTH, III, and GLENN B. BAVOUSETT,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas

May 18, 1977

Before GODBOLD, TJOFLAT and HILL,

Circuit Judges

TJOFLAT, Circuit Judge:

Appellants Lewis Smyth and Glenn Bavousett are former

officers of Norman Harwell Associates, Inc. (NHA), a corpora-

A-l

tion engaged in the preparation and publication of technical

materials. They were charged in an eight count indictment with

conspiring to defraud / and with defrauding / the United

States by overbilling the United States Army Aviation Material

Command (AVSCOM) on two cost-plus contracts / which

NHA had with AVSCOM. The overbilling was allegedly done

intentionally by appellants and other officers and employees of

NHA who systematically replaced the company’s original

employee labor distribution cards with a set of forged cards

on which time formerly billed by NHA to private clients was

shown as having been spent on AVSCOM work. The appellants

were tried and convicted along with other participants in the

scheme and sentenced to concurrent five-year terms of imprison-

ment on each count.

On appeal appellants’ principal arguments are (1) that the

lengthy pre-indictment delay denied them due process, (2) that

the lower court erred in admitting into evidence certain FBI

computer printouts, and (3) that the prosecutor's closing

argument was improper and denied them a fair trial. 4/ We

reject each of these arguments and affirm.

1 18 U.S.C. 8 286 (1970).

2 14. 287

3/ Under the contracts NHA agreed to develop, write and deliver

certain technical manuals to AVSCOM at an agreed composite billing rate

for each type of employee who worked on the contracts. The rate was

designed to include labor, overhead and profit. Thus NHA was required to

keep track of the time employees spent on AVSCOM work and then to

bill AVSCOM at the composit rate for the total hours.

4) Appellants also question the sufficiency of the evidence, the trial

court’s failure to grant their severance motions, the FBI’s refusal to discuss

the case with them, and certain jury instructions. We have examined each

of these claims of error and find them to be totally without merit.

I. Pre-Indictment Delay

The indictment was returned on August 7, 1975. In Count I

it charged a conspiracy running from June 28, 1968, through

September 15, 1971, while Counts II through VIII charged

substantive offenses based on false billings during 1970. (These

false billings constituted some of the overt acts specified in the

conspiracy count.) Thus, there was a period of three years and

ten months between the termination of the conspiracy (the

most recent offense) and the return of the indictment. Though

they concede that the indictment was returned well within the

five-year statute of limitations period. appellants claim that

under United States v. Marion, 404 U.S. 307, 320-21. 92 S.Ct.

455, 463, 30 L.Ed.2d 468, 478-79 (1971), the indictment

should nonetheless have been dismissed because the delay

substantially prejudiced their right to a fair trial. The prejudice

is said to have resulted from the accidental destruction of NHA

employees of certain corporate records in 1973, including

certain computer printouts, which appellants claim might have

demonstrated that the AVSCOM billings were not inflated. & /

While it is admitted that the Government did not destroy these

records, appellants argue that the Government knew of the

records’ existence and importance and thus was negligent in

failing to insure their safe keeping.

We reject this argument for two reasons. First, the law

identifies two factors which must be considered in evaluating

5/ 14,8 3282

8/ The appellants and the other officers and employees of NHA who

were involved in the fraudulent billing scheme left NHA in 1971 and

were thus not involved in the subsequent destruction of the records. The

records were simply thrown out to provide needed working space, and

the NHA employees in charge were under the impression that the records

were no longer important.

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a complaint of pre-indictment delay: (1) that defendant

incurred substantial prejudice as a result of the government's

delay, and (2) that the prosecution had intentionally employed

the delay to gain a tactical advantage. United States v. Avalos,

541 F.2d 1100, 1107 (Sth Cir. 1976). See also United States v.

Duke, 527 F.2d 386 (Sth Cir. 1976); United States v. Butts,

524 F.2d 975 (Sth Cir. 1975). But see Gravitt v. United States,

§23 F.2d 1211, 1216, (Sth Cir. 1975) (“negligence is counted

against the government but is weighted less heavily”). There has

not even been an allegation here that the delay was “an inten-

tional device to gain tactical advantage over the accused.”

Marion, 404 U.S. at 320-21, 92 S.Ct. at 463, 30 L.Ed.2d at

478-79. The record clearly shows that, while the Government

investigation of NHA began in 1971, it was not until April 1975

that a witness came forward and related to investigators how

the fraud was perpetrated. Prior to that time the FBI knew that

NHA’s records had been tampered with but did not know who

the culprits were. Thus, the delay in the present case was in no

way related to any Government misfeasance.

Second, even if the Government had been responsible for the

pre-indictment delay, we believe that appellants have failed to

show substantial prejudice. The fact is that, while appellants

claim the missing records would have exonerated them, their

proffer failed to support their contention. Indeed, the record

indicates that all the pertinent records were before the court.

The original set of employee time cards and the forged set were

placed in evidence, as were the computer runs which tied the

forged set of cards into the vouchers presented to AVSCOM.

1 Appellants characterize the Government’s conduct as negligent;

however, the alleged negligence relates to the failure of investigators to

seize the documents which were later destroyed. At no point did the

appellants make a showing that the Government’s negligence caused the

pre-indictment delay.

A-4

These were the critical source materials, for they clearly demon-

strated that someone copied the original cards submitted by

the employees and changed them to show additional work being

performed on AVSCOM contracts. They also established that

AVSCOM was subsequently billed on the basis of these forged

cards. Absent some explanation as to how the destroyed com-

puter printouts could have placed an innocent light on the

forged cards and the billings based on these cards, appellants’

claim that they were prejudiced is speculative at best and clearly

insufficient to demonstrate prejudice. See, e.g., Butts, 524 F.2d

at 977; United States v. McGough, 510 F.2d 598, 604 (Sth Cir.

1975).

II. The FBI Computer Printouts

At trial two sets of computer printouts prepared by the FBI

were introduced into evidence by the Government. One set

tabulated the information disclosed by the employee labor

distribution cards - the originals and the forged cards - to show

the discrepancies between them. Over each column of the first

group of printouts was a heading, and the inside cover of the

exhibit contained a key which explained the meaning of each

heading. The key was as follows:

MEANING OF HEADINGS

LISTING HEADER DESCRIPTION

Voucher Hours = Billed by NHA per

Voucher

No Time Card Support

Worked Hours = Original Time Taken

From Time Cards

MEANING OF HEADINGS (Continued)

LISTING HEADER DESCRIPTION

Billed Hours = False Time Taken From

Time Cards

Amount of Voucher = Billed by NHA per

Voucher

No Time Card Support

AMOUNT FOR HOURS WORKED = Original Cost Supported

by Time Cards

The second set of printouts tabulated the information on the

billings submitted to AVSCOM and cross-referenced this infor-

mation to the original and forged employee labor distribution

cards. The exhibit was designed to show as to cach voucher how

much time the Government was charged for in excess of the

time actually spent on AVSCOM work. The printouts contained

columns with the following headings: original data.“ falsiſied

data,” “falsified data summarized,” and “difference between

original / false.

Appellants objected to the use of the two sets of printouts on

the ground that the column headings and the explanatory key

constituted improper conclusions which invaded the province of

the jury. The objection was overruled, and the exhibits were

admitted. In charging the jury at the end of the trial, the court

instructed that these computer printouts were not evidence and

were only received as summaries of the labor distribution cards -

original and forged - and the billings, which were in evidence.

Appellants contend that this instruction failed to cure the error

earlier committed in allowing the jury to be exposed to the

conclusory matter appearing on the printouts.

A-6

The evidentiary use of summaries at trial is controlled by

Fed. R. of Evid. Rule 1006, which provides:

The contents of voluminous writings, recordings or

photographs which cannot conveniently be examined

in court may be presented in the form of a chart,

summary, or calculation. The originals or duplicates

shall be made available for examination or copying,

or both, by other parties at reasonable time and

place. The court may order that they be produced in

court.

Prior to the adoption of Rule 1006 the law governing the

evidentiary status of summaries and therefore their use was

unsettled. Striking differences had developed within and among

the circuits, no doubt causing the district courts to resort to

various approaches in handling summaries at trial. In theory

the scope of judicial treatment ranged from the view that

summaries were not evidence, see e.g., Conford v. United States,

336 F.2d 285, 288 (10th Cir. 1964), to the view that they were.

See e.g., Hartford Accident and Indemnity Co. v. Collins

Dietz-Morris Co., 80 F.2d 441 (10th Cir. 1°35). Among the

opinions treating summaries as evidence the more liberal school

required no underlying documents to be received in evidence

as a foundation for the summaries. All that was required was

that the underlying documents be made available to opposing

counsel for cross-examination purposes. See e.g., In re Shelley

Furniture, Inc., 283 F.2d 540, 543 (7th Cir. 1960). The sum-

maries were therefore given an independent evidentiary

significance and could be introduced on the strength of the

preparer’s foundation testimony, thereby avoiding the need to

8/ ‘The new Federal Rules of Evidence became effective on July 1,

1975, prior to the trial of this case.

A-7

receive voluminous documentary evidence at trial. 2/ Under

the most restrictive view summaries were never accorded the

position of evidence. Rather, they were treated as jury aids

designed to clarify voluminous documentary evidence already

in the record and to provide a manageable perspective for the

jury in its deliberations. Juries were not permitted to see the

summaries unless every fact reflected was established by evi-

dence in the record. See, e.g., United States u. Moody, 339 F. 2d

161 (6th Cir. 1964); Hoyer v. United States, 223 F.2d 134

(8th Cir. 1955).

nis approach is in keeping with liberal common law treatment of

summaries espoused by Professor Wigmore:

Where a fact could be ascertained only by the inspection

of a large number of documents made up of very numerous

detailed statements - as, the net balance resulting from a

year’s vouchers of a treasurer or a year’s accounts in a bank

ledger - it is obvious that it would often be practically out of

the question to apply the present principle by requiring the

production of the entire mass of documents and entries to be

perused by the jury or read aloud to them. The convenience

of trials demands that other evidence be allowed to be offered,

in the shape of the testimony of a competent witness who has

perused the entire mass and will state summarily the net result.

Such a practice is well established to be proper.

Most courts require, as a condition, that the mass thus

summarily testified to shall, if the occasion seems to require it,

be placed at hand in court, or at least be made accessible to

the opposing party, in order that the correctness of the evi-

dence may be tested by inspection if desired, or that the

material for cross-examination may be available

4 Wigmore f 1230 (4th ed. 1950).

Wigmore’s view was codified by Rule 1006. See Rules of Evidence,

56 F.R.D. 183, 345-46 (1972). (Advisory Committee’s Note.)

A-8

One viewing the Fifth Circuit opinions cannot clearly

ascertain its position regarding the status of such summaries

either. This Court has sometimes followed the liberal view;

on occasion it has followed the more restrictive view. Compare

Greenhill v. United States, 298 F.2d 405 (Sth Cir. 1962), and

New Amsterdam Casualty Co. v. W. D. Felder and Co., 214

F.2d 825 (Sth Cir. 1954) with United States v. Prevatt, 526

F.2d 400, 404 (Sth Cir. 1976), and United States v. Diez, 515

F.2d 892, 905-06 (Sth Cir. 1975), cert. denied, 423 U.S. 1052,

96 S.Ct. 780, 46 L.Ed.2d 641 (1976). 10

10/ Prior to the implementation of the new Federal Rule this court’s

application of common law principles governing the reception of sum-

maries as evidence varied. We have, for example, referred to such sum-

maries as either primary proof” or “secondary proof” in approving trial

court treatment of summaries as evidence. See McDaniel v. United States,

343 F.2d 785, 789 (5th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 59,

15 L.Ed.2d 71 (1965); Azcona v. United States, 257 F.2d 462 (5th Cir.

1958). At times we have required that the underlying source documents

be in evidence before the summaries could properly be received. McDaniel,

supra. We have also predicated admissibility on a mere showing that such

underlying sources were made available for inspection by the opposing

side. Cooper v. United States, 91 F.2d 195 (5th Cir. 1937); New Amster-

dam Cas. Co. v. V. D. Feidon & Co., 214 F.2d 825 (5th Cir. 1954). These

variations in the treatment of summaries are manifested by the inconsis-

tent references to them as either “competent evidence”, Ward v. United

States, 356 F.2d 938 (5th Cir. 1966); Barrick v. Pratt, 32 F.2d 732 (5th

Cir. 1929), or useful tools through which a jury can more readily ompre-

hend the underlying evidence. United States v. Diez, 515 F.2d 692, 905-

06 (5th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d

641 (1976); United States v. Lawhon, 499 F.2d 352, 357 (5th Cir. 1974),

cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975).

Through this disaccord we recently held that such summaries may be used

only where the jury is instructed that the summaries themselves are not

evidence. See United States v. Prevatt, 526 F.2d 400, 404 (5th Cir. 1976);

Diez, supra; Lawhon, supra, but see EAC Credit Corp. v. King, 507 F.2d

1232 (5th Cir 1975).

A-9

Prior uncertainties regarding the status of summari¢s are now

resolved by Rule 1006. Although the word “evidence” does not

appear in its text we construe the rule as treating summaries as

evidence under circumstances where, in the court's discretion,

examination of the underlying documents in a trial setting

cannot be done conveniently. This construction is compelled by

the rule’s history and by the fact that the rule requires only the

availability of the underlying documents.

That the court below did not apply the rule so as to receive

the summaries in evidence is understandable in light of the

conflicting case law. We are convinced, however, that under any

application of Rule 1006 the use of these summaries at trial

was not error. In applying the rule the trial court followed the

most restrictive approach indicated in our prior opinions. This

approach, from the appellant’s perspective, was calculated to

be the least prejudicial. The court could have excluded all of

the underlying documents and received the summaries as

evidence. The court chose, however, to admit these documents

in evidence and to instruct the jury that the summaries were

not evidence. 11 / Moreover, in light of appellants’ objections to

the characterizations the Government utilized in the summary

headings the cautionary instruction given by the trial judge was

entirely appropriate, if not necessary, for it neutralized their

possible prejudicial effect. Thus, whether or not the trial court

had received the summaries as evidence under Rule 1006,

the cautionary instruction insofar as it emphasized that the

characterizations were not evidence, would have made the

11/ Implicit in Rule 1006 is the notion that a trial judge may choose

this alternative. In the circumstances of a given case the court may feel

that the jury, or the court, itself, in a bench trial, ought to consider the

source documents in resolving a fact issue and that, on balance, a sum-

marization of such evidence would add to or detract from the proper

weight or emphasis to be given it.

* A-10

remainder of the summaries admissible under the rule. 12

In fine, we reject appellant's claim that the district court's

treatment of the summaries unduly prejudiced their trial. In

permitting the jury to utilize them, the court proceeded well

within the discretion accorded it under Rule 1006. The original

and forged employee labor distribution cards were in evidence.

The computer printouts merely tabulated the information they

disclosed. As for the headings, they accurately explained the

significance the Government attached to the tabulations. In this

sense the headings reflected certain assumptions, but these

assumptions were amply supported by the evidence already

before the jury. By instructing the jury that the summaries were

not evidence, however, the trial judge took one further step

to insure that the jury would not rely on the conclusory matter

as independent proof of the appellants’ guilt.

12/ We do not opine on the extent of error that would have been created

had these summaries and characterizations been received as evidence

without any cautionary instruction being given. It would seem, though,

that because summaries are elevated under Rule 1006 to the position of

evidence care must be taken to omit argumentative matter in their prepara-

tion lest the jury believe that such matter is itself evidence of the assertion

it makes. See Ping v. United States, 407 F.2d 157, 160 (8th Cir.) cert.

denied, 395 U.S. 926, 89 S.Ct. 1784, 23 L.Ed.2d 244 (1969); Lioyd v.

United States, 226 F.2d 9, 17 (5th Cir. 1955). We think that the framers

of the rule clearly contemplated a pre-trial resolution of any issues that

may be raised concerning the use of summaries. By requiring that the

underiying documents be made available to opposing counsel, the rule

encourages counsel to eliminate objectionable matter and to stipulate to

the form of the summary. Through this process the frequency of objec-

tions such as those raised here should be greatly reduced.

A-11

III. The Prosecutor’s Closing Argument

During his closing argument the prosecutor said: Vou want

to say we approve of this type of conduct in dealing with the

Government? Let Uncle Sam take the ride, but when you

think about that, think of that, that’s your tax money, that’s

your tax money being kicked in here.” Appellants submit

that this argument was an improper attempt to appeal to the

personal prejudices of the jurors as taxpayers and that it was so

prejudicial they were denied a fair trial.

We view the prosecutor’s pitch as an unprofessional and

highly improper appeal to the passion and prejudices of the

juror. See Handford v. United States, 249 F.2d 295 (Sth Cir.

1957); ABA Standards Relating to the Administration of

Criminal Justice, The Prosecution Function § 5.8(c) (1972).

But we must consider errors of this sort in the context of the

entire record to determine whether or not the substantial rights

of an accused were affected. See Handford, supra; Fed. R.

Crim. P. 52(a). In the present case, the court sustained the

objection and gave an appropriate cautionary instruction. 13/

More importantly, though, unlike the situation in Handford,

this clearly was not a close case. The evidence against appellants

was strong, and we are therefore convinced that the error was

harmless.

AFFIRMED.

13/ The court instructed the jury as follows:

Members of the jury, you are not to consider that statement

for the reason that it’s a personal appeal to you. It’s alright for

him to argue that tax money is paying for it but [not] the

portion about your tax money hurting you. It will not be

considered by you because you’re not supposed - you’re

supposed to view the matter impartially. Record at 1107-08.

A-12

ee

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK”

TEL. 504-589-6514

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

May 18, 1977

MEMORANDUM TO COUNSEL OR

PARTIES LISTED BELOW:

No. 76-2314 U.S. A. VS. SMYTH, ET AL.

Dear Counsel:

Enclosed is a copy of the Court’s opinion this day rendered

in the above case. A judgment has this day been entered in

accordance therewith pursuant to Rule 36 of the Federal Rules

of Appeliate Procedure.

Rules 39, 40 and 41, F.R.A.P., govern costs, petitions for

rehearing and mandates, respectively. A petition for rehearing

must be filed in the Clerk’s Office within 14 days from this

date. Placing the petition in the mail on the 14th day will not

suffice.

Local Rule 15 provides that “A motion for a stay of the

issuance of a mandate in a direct criminal appeal filed under

F.R.A.P. Rule 41 shall not be granted simply upon request.

Unless the petition sets forth good cause for stay or clearly

A-13

demonstrates that a substantial question is to be presented to

the Supreme Court, the motion shall be denied and the mandate

thereafter issued forthwith.”

If you are court-appointed counsel, your attention is called to

Local Rule 7 which provides: “Appointed counsel shall, in the

event of affirmance or other decision adverse to the party

represented, promptly advise him in writing of his right to seek

further review by the filing of a petition for writ of certiorari

with the Supreme Court, and shall file such petition, if re-

quested by such party in writing to do so.”

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By _/s/ Ann Barre

Deputy Clerk

cc: Mr. Jim Claunch

ur. Charles Michael Mallin

Mr. Joseph A. Calamia

Mr. Woodrow Bean, Sr.

Mr. Gerhard E. Kleinschmidt

Mr. John W. Sweeney, Jr.

A-14

) desert

APPENDIX C“

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-589-6514

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

July 20, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-2314 - U.S.A. v. LEWIS MILLER SMYTH, III and

GLENN B. BAVOUSETT

Dear Counsel:

This is to advise that an order has this day been entered denying

the petition () for rehearing, and no member of the panel nor

Judge in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the

petition ( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for issuance

and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By Brenda M. Hauck

Deputy Clerk

A-15

ec: Mr. Jim Claunch

Messrs. Charles Michael Mallin

Joseph A. Calamia

Mr. Woodrow Bean, Sr.

Messrs. Gerhard E. Kleinschmidt

Mr. John W. Sweeney, Jr.

A-16

APPENDIX “D”

8 286. Cons iracy to defraud the Government with respect

to claims

Whoever enters into any agreement, combination, or

conspiracy to defraud the United States, or any department

or agency thereof, by obtaining or aiding to obtain the payment

or allowance of any false, fictitious or fraudulent claim, shall

be fined not more than $10,000 or imprisoned not more than

ten years, or both.

June 25, 1948, c. 645, 62 Stat. 698.

§ 287. False, fictitious or fraudulent claims

Whoever makes or presents to any person or officer in the

civil, military, or naval service of the United States, or to any

department or agency thereof, any claim upon or against the

United States, or any department or agency thereof, knowing

such claim to be false, fictitious, or fraudulent, shall be fined

not more than $10,000 or imprisoned not more than five years,

or both.

June 25, 1948, c. 645, 62 Stat. 698.

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