# Petition — Smyth v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 862

## Text

: 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

Page
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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.

A-3

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.

A-17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2420%3A1. Public record. Not legal advice.