Petition — Dolwig v. United States

Supreme Court brief1977

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IN THE

SUPREME COURT OF THE UNITED Spates": | %. of

October Term 1977

No. ("2 3 7

RICHARD J. DOLWIG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GODFREY ISAAC, ESQ. and

LAWRENCE JAY KRAINES, ESQ.

LAW OFFICES OF

GODFREY ISAAC

A Professional Corporation

Penthouse Suite

9454 Wilshire Boulevard

Beverly Hills, CA 90212

(213) 278-1366/878-0455

Attorneys for Petitioner

’

}

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

RICHARD J. DOLWIG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GODFREY ISAAC, ESQ. and

_ LAWRENCE JAY KRAINES, ESQ.

LAW OFFICES OF

GODFREY ISAAC

A Professional Corporation

Penthouse Suite

9454 Wilshire Boulevard

Beverly Hills, CA 90212

(213) 278-1366/878-0455

Attorneys for Petitioner

TOPICAL INDEX

Table of Authorities

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING THE WRIT

1. CERTIORARI SHOULD BE GRANTED

TO REVIEW THE AUTHORITY OF

THE TWO SPECIAL ATTORNEYS OF

THE UNITED STATES DEPARTMENT

OF JUSTICE WHO REPRESENTED

THE GOVERNMENT, WHO OBTAINED

A FEDERAL INDICTMENT AND WHO

PROSECUTED THIS CASE.

2. CERTIORARI SHOULD BE GRANTED

TO REVIEW THE REFUSAL OF THE

TRIAL COURT, AFFIRMED BY THE

COURT OF APPEALS, TO GRANT

PETITIONER'S MOTION FOR A

SEPARATE TRIAL.

Page

CERTIORARI SHOULD BE GRANTED

TO DETERMINE IF THE COURT OF

APPEALS SHOULD HAVE REVERSED

THE CONVICTIONS OF PETITIONER

DUE TO THE PREJUDICE AND LACK

OF IMPARTIALITY OF THE DIS-

TRICT COURT TRIAL JUDGE. 46

CERTIORARI SHOULD BE GRANTED

TO DETERMINE IF THE COURT OF

APPEALS SHOULD HAVE REVERSED

THE CONVICTIONS OF PETITIONER

DUE TO THE INTERFERENCE BY

THE COURT CLERK WITH MEMBERS

OF THE JURY DURING THEIR

DELIBERATIONS. 49

CERTIORARI SHOULD ALSO

GRANTED TO DETERMINE WHETHER

THE COURT OF APPEALS SHOULD

HAVE REVERSED THE CONVICTIONS

OF PETITIONER DUE TO THE FOL-

LOWING, WHICH ARE FULLY DIS-

CUSSED IN PETITIONER'

S OP

AND REPLY BRIEFS BEFORE TH

NINTH CIRCUIT: 50

(A) a eeeaniat misconduct

uring opening and closin

arguments [(0.B. P. 34, -

seq-; R.B. P. 17, et seg. 50

(B) Insufficiency of the evi-

dence [0.B. P. 47, et seg.;

R.B. P. 9, et seg.];_ " 50

i connections [0.B. P.

, et seg.; R.B. P.

et om-17 ™

il.

(D) Failure to instruct the

jury as requested by

Petitioner and instruction

of the jury over Peti-

tioner's objections

[O.B. P. 59, et seq); 50

(E) Varying the Order of Proof

as to conspiracy [O.B. P.

62, et seq.];

(F) Refusal to dismiss the

entire jury panel due to

the prejudice and bias

caused by pre-trial pub-

licity [R.B. P. 21, et seq]; 50

(G) Failure to comply with the

mandate of Brady v. Mary-

land, supra, requiring that

exculpatory evidence be

timely presented to a

defendant accused of crime;

and 51

(H) The Ninth Circuit Court of

Appeals either ignored an

uncontroverted part of the

evidence or qisunderstood

its significance: 51

CONCLUSION

APPENDIX A OPINION OF THE COURT OF

APPEALS - UNITED STATES v.

KAPLAN , re er ’

1977, as amended SEPTEMBER

6, 1977

APPENDIX B FEDERAL RULES OF CIVIL

PROCEDURE 6(d) and 54(c)

and 28 U.S.C. § 515

iii.

TABLE OF AUTHORITIES

Page

APPENDIX C LETTER OF AUTHORIZATION Cases

OF SPECIAL ATTORNEY

ROBERT J. BREAKSTONE Brady v. Maryland (1963)

4, 52, 52

DATED JUNE 1l, 1974 373 U.S. 83

APPENDIX D

pane a OF In re: Grand Jury Subpoenas Addressed

DATED J my KSTONE to: Raymond L. S. Patriarca, et al.,

UNE 11, 1974 396 F.Supp. 859 (D.R.I. 1975) 37

Remmer v. United States (1954)

APPENDIX E LETTER OF AUTHORIZATION

OF EEC TAL ATTORNEY 347 U.S. 227 3

eo D. LYONS

TED FEBRUARY 4, 1975 Sandello v. Curran

CE OF

EDMUND D. LYONS Feb. 27, 1975) (Tenney, J.) 37

DATED FEBRUARY 4, 1975 Schaffer v. United States (1960)

362 U.S. 511 3

Shushan v. United States

117 F.2d 110 (5th Cir. 1941),

cert denied, 313 U.S. 574,

61 S.Ct. 1085, 85 L.Ed. 1531

rehearing denied

United States v. Agrusa

392 F.Supp. 3 (W.D. Mo.,

| Feb. 6 and Feb. 25, 1975)

(Oliver, J.)

; United States v. Amazon

Industrial Chemical Corp.

55 F.2d 254 (D. Md. 1931) 30, 3i

iv.

United States v. Brodson

and Halmo

390 F.Supp. 774 (E.D. Wis.

1975) (Gordon, J.)

United States v. Brown

389 F.Supp. 959 (S.D.N.Y.

1975) (Pollack, J.)

United States v. Cohen

273 F. 620 (D. Mass. 1921)

United States v. Crispino

392 F.Supp. 764

(S.D.N.Y. 1975) 28,

36,

39, 43

United States v. Crosthwaite (1897)

168 U.S. 375

United States v. DiGirlomo

393 F.Supp. 997 (W.D. Mo.

1975) (Hunter, J.)

United States v. Goldman

28 F.2d 424 (D. Conn. 1928)

United States v. Hall

145 F.2d 781 (9th Cir. 1944)

cert denied 324 U.S. 871

65 S.Ct. 1016, 89 L.Ed. 1425

(1945)

United States v. Huston

28 F.2d 451 (W.D. Ohio 1928)

United States v. Kazonis

391 F.Supp. 804

(D. Mass. 1975)

vi.

37, 38

32, 38

30, 31

United States v. Martins

288 F. 991 (D. Mass. 1923)

United States v. Morse :

292 F. 273 (S.D.N.Y. 1922)

United States v. 1,960 Acres

of Land in Riverside County,

54 F.Supp. 867 (S.D. Cal.

United States v. Powell

30,

Cal.

1944)

81 F.Supp. 288 (E.D. Mo. 1948)

United States v. Rosenthal

121 F. 862 (C.C.S.D.

N.Y. 1903)

United States v. Weiner

392 F.Supp. 81 (N.D. Ill.

1975)

United States v. Williams (1974)

65 F.R.D. 422

United States v. Wrigley

392 F.Supp. 14 (W.D. Mo.,

March 1l, 1975), 392 F.Supp. 9

(W.D. Mo., Feb. 5 1975)

(Oliver, J.)

Statutes

18 U.S.C. §§ 1341 and 1342

18 U.S.C. § 1962(c), 1961(1) (3)

and (2)

18 U.S.C. § 2314 and 2

vii.

31,

21,

14,

35,

Page

The Act of 1906,

34 Stat. 816

28 U.S.C. § 515 3e S$, 10-19

28 U.S.c. § 515(a) 18, 20, 33-44

28 U.S.c. § 547 10, 18

28 U.S.C. § 547(1) my 39

28 U.S.c. § 541-550 18

28 U.S.C. § 1254(1) 2

Rules

Federal Rules of Civi

6(d) and 54 (c) von Peeeatine 5, 10

Constitution

— States Constitution

ifth and Sixth Amendments 5

Miscellaneous

~_ Rep. No. 2901

9th Cong., lst Sess. (1906) 28, 35

House Bill, H.R. 4470

Senate Bill, s. 1519 7

viii.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

RICHARD J. DOLWIG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Defendant-Petitioner, RICHARD J.

DOLWIG, petitions for a Writ of Certiorari

to review the judgment of The United

States Court of Appeals for the Ninth

Circuit in this case, entered on May 26,

1977.

OPINIONS BELOW

| The opinion of the Court of Appeals

1S reported at 554 F.2d 958 and is

printed in Appendix A hereto.

JURISDICTION

The judgment of the Court of Appeals

— F.2d 958 (1977)), printed th Sein

dix A hereto, was entered on May 26, 1977

and was amended on September 6, 97 |

Petition for rehearing was timely eit0s

and was denied on September 6, 1977.

Jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1). Petitioner's

netttinien and Reply Briefs before the Ninth

Circuit Court of Appeals are referred to

numerous times in this petition. There-

fore, copies of said Opening Brief and

Reply Brief have been lodged with this

Court for the Court's consideration in

ruling on this petition.

QUESTIONS PRESENTED

1. Whether the special attorneys who

appeared before the federal grand jury in

thi

his case had any authority whatsoever or

whether they had proper authority under

Title 28, U.S.C. § 515 to appear before

said grand jury and, if they did not,

whether the indictment thereafter returned

was tainted and void requiring the rever-

sal of the convictions obtained thereunder?

2. Whether, under the ruling in

Schaffer v. United States (1960), 362 U.S.

511, the Court of Appeals should have

reversed the convictions of Petitioner

due to the failure of the trial court to

grant Petitioner a separate trial?

3. Whether the Court of Appeals

should have reversed the convictions of

Petitioner due to the prejudice and lack

of impartiality of the trial judge?

4. Whether, under the ruling in

Remmer v. United States (1954), 347 U.S.

227, the Court of Appeals should have

reversed the convictions of Petitioner

due to the interference by the Court

Clerk with members of the jury during its

deliberations?

5. Whether the Court of Appeals

should have reversed the convictions of

Petitioner due to the following:

—_ (A) Prosecutorial misconduct

uring opening and Closing arguments;

(B) Insufficiency of the

evidence;

| (C) Co-counsel's references to

Mafia connections;

(D) Failure to instruct the jury

o ——

S requested by Petitioner and instruction

of the jury over his objections;

(E) Varying the

Order of P

to conspiracy; seaniad

| (F) Refusal to dismiss entire

jury panel due to ri

pretrial prejudi

oo prejudice and

(G) Failure to comply with the

Page of Brady v. Maryland (1963), 373

-S. 83, requiring that exculpatory evi-

dence be timely presented to a defendant

accused of crime; and

, (H) The Ninth Circuit Court of

ppeals either ignored an uncontroverted

ale of the evidence or misunderstood its

Significance.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The constitutional provisions involved

are the due process clause of the Fifth

Amendment to the United States Constitution

and the Sixth Amendment to the United

States Constitution. The federal statutes

involved are 28 U.S.C. §§ 515 and Federal

Rules of Civil Procedure 6(d) and 54 (c)

which are printed in Appendix B hereto.

STATEMENT OF CASE

Beginning on January 23, 1975, U.S.

Special Attorneys, ROBERT J. BREAKSTONE

and EDMUND D. LYONS, appeared before the

Grand Jury for the Northern District of

California, and presented evidence or

assisted in the presentation of evidence

which resulted in the return of an indict-

ment on June 5, 1975. The purported

"Letter of Authority" (there is hereinafter

a discussion of the defects and questions of

authenticity relating thereto) and the Oath

of Special Attorney ROBERT J. BREAKSTONE,

were dated June 11, 1974. The “Letter of

Authority" of the other Special Attorney,

EDMUND D. LYONS, was dated February 4,

1975, and the Oath was filed on February

19, 1975, weeks after said attorney had

apparently already appeared before the

federal grand jury in this case.

The indictment charged David Kaplan,

David Gorwitz, Earl Vogt, Walter Stradley,

Gerald Enis, Douglas Cassidy and Richard

Dolwig with violation of various Federal

laws. In addition, Paul Axelrod and Hugh

DuVal were named as unindicted co-

conspirators. The indictment consisted

of some twenty-eight (28) cunts. All

defendants were not charged with all

counts.

The indictment charged that the defen-

dants did devise and intend to devise a

scheme and artifice to defraud and to

obtain money and property, by means of

false and fraudulent pretenses, representa-

tions and promises from certain named

persons throughout the United States.

Defendant RICHARD DOLWIG, a former

State legislator who honorably served 10

years in the California State Assembly and

14 years in the California State Senate,

was charged in a total of ten (10) counts

(Counts 19-28):

In Counts 19 through 22, all defen-

ts were charged with unlawfully using

an )

, n four occasions

the United States mails 0

, —

to carry out 4 fraudulent scheme in vi

lation of Title 18, United States Code,

§§ 1341 and 1342.

In Counts 23 through 25, all defen-

charged with unlawfully induc-

nterstate

s in order to

dants were dw

ing persons to travel inl

commerce on three occasion

xecute a scheme to defraud such persons

' .

roperty having a value in

and p |

pero lation of Title

$5,000.00 in vio

a §§ 2314 and 2.

18, United States Code,

t 26, all defendants were

oun

wide es and

charged with transporting securitl

monies in a value in excess of $5,000.00,

i n

in interstate commerce which had bee

taken by fraud in violation of Title 18,

United States Code, §§ 2314 and 2.

In Count 27, all defendants were

charged with joining together in 4 group

employed by and associated with Eurovest,

Ltd., and conducting racketeering

activities by perpetrating the acts charged

in Counts 1 through 26, in violation of

Title 18, United States Code, §§ 1962(c),

1961(1)(3) and (2).

In Count 28, all defendants were

charged with conspiracy in that they

knowingly used wire and other communica-

tions in interstate commerce; knowingly

used the United States mails; knowingly

induced persons to travel in interstate

commerce; and knowingly transported securi-

ties and monies in excess of $5,000.00 in

interstate commerce--all in furtherance of

a scheme to defraud certain persons.

Petitioner, RICHARD J. DOLWIG, entered

his plea of not guilty as to each count

with which he was charged. Trial was had

before a jury in the Federal District Court

for the Northern District of California,

at San Francisco, California. Petitioner

was convicted on eight of the ten counts

with which he was charged, Counts 21

through 28, and was acquitted as to Counts

19 and 20. He was sentenced to imprison-

ment for various terms: Two (2) years as

to Count 21; Two (2) years as to Count 22;

Five (5) years as to Count 23; Five (5)

years as to Count 24; Five (5) years as

to Count 25; Five (5) years as to Count 26;

Five (5) years as to Count 27; and Four

(4) years as to Count 28. All sentences

were to run concurrently.

Petitioner, RICHARD J. DOLWIG, timely

filed a Notice of Appeal in The United

States Court of Appeals for the Ninth

Circuit on October 10, 1975. He is pre-

sently free on $10,000.00 bail. ne |

Court of Appeals affirmed the convictions

of all defendants except as to Count 22

which it reversed, in a per curiam

opinion by Judges Goodwin, oan —

Fitzgerald, on May 26, 1977, which is

printed in Appendix A hereto (554 F.2d

958). Thereafter, Petitioner filed .

Petition for Rehearing which was denied

by the Court of Appeals on September 6,

1977.

REASONS FOR GRANTING THE WRIT

1. CERTIORARI SHOULD BE GRANTED TO

REVIEW THE AUTHORITY OF THE TWO

SPECIAL ATTORNEYS OF THE UNITED

STATES DEPARTMENT OF JUSTICE WHO

REPRESENTED THE GOVERNMENT, WHO

OBTAINED A FEDERAL INDICTMENT

AND WHO PROSECUTED THIS CASE.

The duties of the United States

Attcrney are contained in 28 U.S.C. 547,

which vests in the U.S. Attorneys exclusive

authority to prosecute all criminal

offenses in the United States.

As defined by Federal Rule of Criminal

Procedure, Rule 6(d) (printed in Appendix

B), only attorneys for the government may

be present while the Grand Jury is in ses-

sion. Rule 54(c) (printed in Appendix B)

states that an "attorney for the govern-

ment" means the Attorney General, an

authorized assistant of the Attorney Gen-

eral, a U.S. Attorney and an authorized

assistant of a U.S. Attorney.

Title 28, U.S.C. § 515 (which is

printed in Appendix B), specifies the pre-

requisites which must be met in order for

an attorney to be specially appointed by

10.

the Attorney General as a Special

Attorney and thereby be authorized to

bring legal proceedings on behalf of need

federal government. These include a

special appointment and the taking of an

oath.

Petitioner's objection to the author-

ity of the Special Attorneys to obtain

the indictment and prosecute this case

is two fold:

(A) THE FIRST OBJECTION CHALLENGES

THE AUTHORITY OF THE SPECIAL ATTORNEYS

ON THE BASIS THAT NO LETTER OF AUTHORIZA-

TION ACTUALLY EXISTED.

Two Special Attorneys represented the

government in this case: ROBERT J

BREAKSTONE and EDMUND D. LYONS. Both men

were present during the Grand Jury pro-

ceedings beginning on January 23, 1975,

and both men presented the government's

case at the trial.

On July 15, 1977, after first learning

that a question existed as to the etal

ity of the Special Attorneys in this case,

Petitioner filed a Motion for Bill yi

Particulars or for Evidentiary Hearing to

ll.

Specifically determine the

such attorneys.

the motion,

by the gover

facts regard

authority of

Although the Court denied

the Opposition Papers filed

nment revealed very important

. | ing the authority of the

Ppecial Attorneys in this case

As to Special Attorney, ROBERT J

BREAKSTONE: Mr. Break

"Letter of Authority"

1s dated June ll, 1974, as is his Oath

(Appendix p hereto), but his Letter j

not only a form letter, na

by its writer, who Purpo

PETERSEN, Assistant Atto

Stone's illegible

(Appendix c hereto)

but is not Signed

rtedly is HENRY E,

—_ rney General. In

it is not on any official

12.

In this case, the "Letter of Authority"

offered by Special Attorney BREAKSTONE to

substantiate his authority lacks the

signature of anyone. In fact, the end of

this letter does not even bear the ini-

tials of the dictator of the letter or the

secretary who typed same. In addition

the letter is not on any letterhead.

Since it is not clear whether or not

Assistant Attorney General, HENRY E.

PETERSEN, authorized the appointment of

Special Attorney BREAKSTONE, the Court of

Appeals should have granted Petitioner's

Motion for Bill of Particulars or should

have granted an evidentiary hearing to

determine the true facts.

As to Special Attorney, EDMUND D.

LYONS: The same documents offered in

opposition to Petitioner's Motion for

Bill of Particulars show that Special

Attorney LYONS did not receive his

"Letter of Authority" (Appendix E hereto)

until February 4, 1975, and filed his Oath

(Appendix F hereto) on February 19, 1975.

The facts also indicate that Special

Attorney LYONS appeared at and participated

13.

dienes Grand Jury Proceedings in this case

which began on January 23, 1975, several

| hear federal rule Pertaining to the

limitation on the presence of unauthorized

Persons in the Grand Jury room during it

proceedings is well-founded in our lh

tion. Such rule is to Protect not onl

the System, but the accused himself. ;

In United States vy. Williams (1974)

, ao

5 F.R.D. 422, the Court dismissed an

14,

indictment obtained by two special attor-

neys. The case cites 4 A.L.R.2d 392 on

the subject of "Presence in Grand Jury

Room of Person Other Than Grand Juror as

affecting Indictment," which collects the

various cases on the subject and summarizes

the federal rule that “the appearance and

participation of a special assistant not

properly appointed or specifically di-

rected by the Attorney General within the

meaning of the statute has been held

grounds for setting aside an indictment -"

(at p. 445)

The Williams case further points out

that this Court's opinion in United States

v. Crosthwaite (1897), 168 U.S. 375, under-

scores the prime importance of giving

§ 515(a) a construction consistent with

the Congressional intent expressed when

1906 was enacted. For

the Act of June 30,

the Congress, the case points out, had not

passed any legislation broadening the

authority of the Attorney General since

it acted in 1906.

It is settled that the: Attorney

General has power to appoint attorneys

under § 515 and only under that section.

15.

Failure to comply with that section's

prerequisites denies an appointed attor-

ney the power to appear before a grand

jury, obtain an indictment or prosecute

a case.

Since the Special Attorneys in this

case lacked adequate Letters of Authority

pursuant to § 515, at the time of their

appearance before the Federal Grand Jury

in this case, the indictment they obtained

was improperly obtained and the conviction ee

of the Petitioner obtained by way of such

tainted indictment cannot stand.

(B) THE SECOND OBJECTION ASSUMES, FOR

THE SAKE OF ARGUMENT ONLY, THAT THE LETTERS

OF AUTHORIZATION EXIST, BUT CHALLENGES

THEIR VALIDITY UNDER § 515 OF TITLE 28 AND

ITS "SPECIALLY DIRECTED" REQUIREMENT.

The cases in this area indicate that

questions regarding the validity of the

same Letters of Authority which exist in

this case have been decided differently by

different federal District Courts and

federal Courts of Appeal. There are di-

rectly conflicting cases on point and,

as yet, the questions presented have not

16.

been resolved by this Court. In fact,

Petitioner has been unable to find any

decision of this Court dealing with the

validity of the form letters presently

used by the United States Attorney General.

Due to the present conflict, as is more

fully discussed, infra, important memes

exist which can only be resolved by this

Court.

Title 28 U.S.C. § 515, printed in

Appendix B hereto, allows the Attorney

General to appoint a special attorney by

"specifically" directing him to conduct

legal proceedings. In addition, the

special attorney must take an oath.

The questions which arise in ian case,

and have arisen in many other cases in

this area, is what is the meaning of the

phrase "specifically directed" which

appears in § 515(a) and does the form

Letter of Authorization used by _ —

ney General comport with the “specifically

i ion?

directed" requirement of that sect

Close inspection of § 515(a) reveals

that there are two possible meanings which

can be attributed to the requirement that

17.

the special attorney be "specifically

directed." One is that the language

"specifically directed" only requires

that the special attorney be directed to

participate in a specified kind of pro-

ceeding. The other construction is that

there must be a direction for a specific

case in which the special attorney is to

participate. (United States v. Martins,

288 F. 991 (D. Mass. 1923). Either con-

struction is equally warranted by the

language of the statute. The choice of

constructions can be made only after an

examination of the realtion of § 515(a)

to the statutes establishing the network

of United States attorneys and a review

of the history of § 515(a).

Title 28 U.S.C., Chapter 35, §§ 541-

550, establishes a nationwide system of

United States attorneys. Section 547

provides for the duties and powers of the

United States attorneys and states:

"Except as otherwise provided

by law, each United States attor-

ney, within his district, shall--

18.

"(1) prosecute for all of-

fenses against the United

States; * * *."

Viewing these statutory provisions

together, it is apparent that the legisla-

tive scheme created by Congress is one in

which the primary responsibility for the

prosecution of offenses against the United

States is placed in the hands of the

United States attorney who is appointed

from his district for a term of years and

is only removable by the President. Al-

though the United States attorneys are

subject to the Attorney General, they are

not his employees, and it is evident that

Congress intended that the United States

attorneys only be circumvented under spe-

cial circumstances; it should be for some-

thing unusual and not as a standard

operating procedure.

This legislative scheme is in the

spirit of the federalism which is built

into our laws which makes it difficult to

concentrate power in the hands of those

in Washington. The Attorney General's

prosecutory power is limited by the esta-

blished system of United States attorneys,

19.

and the Attorney General's expansion of

that power is limited by § 515(a). It

has been argued that § 515(a) gives the

Attorney General the same power and author-

ity as the United States attorney has.

Congress never intended this. The deci-

sion to grant the primary power and res-

ponsibility for prosecution of all federal

crimes to a single United States attoreny

in each district is one which cannot be

viewed to be irrational in light of the

constitutional decision to have a federal

rather than a national government.

It also has been argued that the Act

of 1906, now codified as 28 U.S.c. § 515(a),

had the effect of allowing the Attorney

General to supersede the local United

States attorneys and their assistants by

appointing special attorneys and endowing

them with roving commissions to take the

very actions which are statutorily en-

trusted to the United States attorneys.

Attention must therefore be focused on the

legislative history and subsequent judicial

interpretations of § 515(a).

20.

The Act of 1906, now codified as 28

U.S.C. § 515(a), was enacted in response

to the decision in United States v.

Rosenthal, 121 F. 862 (C.C.S.D.N.Y. 1903).

There, Mr. W. Wickham Smith was commis-

sioned a special assistant to the Attorney

General to investigate and report concern-

ing alleged fraudulent importations and

to prepare and conduct such civil and

criminal proceedings as may result there-

from. Smith pursued the investigation of

the alleged offenses and chiefly conducted

the grand jury proceedings. The defend-

ants' motions to quash the resulting in-

dictments on the ground that Smith was not

legally authorized to conduct the grand

jury proceedings were granted.

In Rosenthal, Judge Thomas first ruled

that the statutory power of the Attorney

General to conduct and argue any "case" in

any court did not authorize him to make

appearances before grand juries (121 F. at

866-867). Since Smith was not commissioned

as an assistant to the District Attorney

but only as a special assistant to the

Attorney General, the conclusion that the

Attorney General had no power to appear

21.

before grand juries necessitated the

conclusion that Smith also lacked such

power.

In response to Rosenthal, Congress

passed the Act of June 30, 1906, 34 Stat.

816, which is currently codified at 28

U.S.C. § 515(a). The Act enabled special

attorneys to conduct legal proceedings,

including grand jury proceedings, "when

specifically directed by the Attorney

General." Bills were introduced in both

Houses of Congress, and the House bill was

passed. The complete House report pro-

vided as follows:

"Mr. Gillett of California

from the Committee on the Judi-

Ciary submitted the following:

"The Committee on the Judi-

Cciary, having had under consi-

deration the bill (H.R. 17714)

to authorize the commencement

and conduct of legal proceedings

under the direction of the Attor-

ney~General, respectfully report

the same back with the recom-

mendation that the same do pass.

22.

"The purpose of this bill is

to give to the Attorney-General,

or to any officer in his Depart-

ment or to any attorney special-

ly employed by him, the same

rights, powers, and authority

which district attorneys now

have or may hereafter have in

presenting and conducting pro-

ceedings before a grand jury or

committing magistrate.

“Tt has been the practice of

Attorney-General for many years

to employ special counsel to

assist district attorneys in the

prosecution of suits pending in

their respective districts when-

ever the public interest demanded

it. It has been the practice of

such special counsel to appear,

with the district attorney, be-

fore grand judges and committing

magistrates and to assist in _

proceeding pending there. This

right passed unchallenged for

many years, until the Circuit

Court for the Southern District

23.

+ New York, on March 17, 1903, therefrom, is not authorized

in the case of the United States by law to conduct, or to aid

Vv. ae Goreme that -- the conduct of, proceedings

y General, before a federal grand jury,

the aeneemand General, nor and indictments based upon

any officer of the Depart- such proceedings so conducted

a of Justice is author- should be quashed upon motion.'

ized by sections 359, 367, "This decision makes the pro-

or ow. provision of the posed legislation necessary if the

pene Statutes of the Government is to have the benefit

United States [U.S.Comp.St. of the knowledge and learning of

1901, pp. 207, 209], to con- its Attorney-General and his

duct, or to aid in the con- assistants, or of such special

duct of, proceedings before counsel as the Attorney-General

‘om jury. nor has a spe- may deem necessary to employ to

Cial assistant to the Attor- assist in the prosecution of a

ney General such power.' special case, either civil or

"And the court further held that -- criminal. As the law now stands,

only the district attorney has any

authority to appear before a grand

jury, no matter how important the

case may be to the interests of the

Government to have the assistance

of one who is specially or parti-

cularly qualified by reasons of

his peculiar knowledge and skill

""A special assistant to the

Attorney General, appointed

to investigate and report

concerning alleged fraudulent

importations of Japanese

silks at the port of New York,

and to prepare and conduct

such civil and criminal pro-

ceedings as may result

to properly present to the grand

24. 25.

jury the question being consi-

dered by it.

"The Attorney-General states

that it is necessary, in the due

and proper administration of the

law, that he shall be permitted

to employ special counsel to

assist the district attorney in

cases which district attorneys

or lawyers do not generally pos-

sess, and in cases of such usual

[sic] importance to the Govern-

ment, and that such counsel be

permitted to possess all of the

power and authority, in that

particular case, granted to the

district attorney, which, of

course, includes his right to

appear before a grand jury either

with the district attorney or

alone.

"It seems eminently proper

that such powers and authority be

given by law. It has been the

practice to do so in the past and

it will be necessary that the

practice shall continue in the

future.

26.

"If such a law is necessary

to enable the Government to pro-

perly prosecute those who are

violating its laws, it is no argu-

ment against it that some grand

jury may be, perhaps, unduly in-

fluenced by the demands or im-

portunities that may be made upon

it by such special counsel. The

same argument can as well be made

against permitting a district

attorney from attending a sitting

of such jury.

"There can be no doubt of the

advisability of permitting the

Attorney-General to employ spe-

cial counsel in special cases,

and there can be no question that

if he has been employed because

of his special fitness for such a

special case that the Government

should have the full advantage of

his learning and skill in every

step necessary to be taken before

the trial, including that of

appearing before grand juries.

27.

"The law proposed by the bill

under consideration seems to be

very necessary, because of the

decision in the Rosenthal case,

hereinbefore referred to, and the

committee recommend its speedy en-

actment." H.R.Rep. No. 2901, 59th

Cong., lst Sess. (1906).

(Emphasis added. )

As stated by Judge Werker in United

States v. Crispino, 392 F.Supp. 764, 772

(S.D.N.Y., 1975):

"The House Report leaves no

room for doubt that Congress in-

tended the Attorney General to

have the power to appoint special

attorneys to prosecute a particu-

larly important case or a special

case or cases. This power was

seen as a necessary aid to effec-

tive law enforcement. Rather than

restricting the appearances of

these attorneys to the trial of

cases, it was deemed appropriate

that they appear in every step of

the litigation including grand

jury proceedings. However, since

28.

the district attorneys and their

regular assistants had the res-

ponsibility for prosecuting all

crimes in their districts, the

appearance of special attorneys

before grand juries was limited

to special cases where the Attor-

ney General concluded that the

particular knowledge and skill of

these special attorneys would be

useful." (Emphasis added.)

Following the enactment of the Act of

1906, several courts were called upon to

decide the meaning of the language "spe-

cifically directed" in the context of

attorneys appointed under what is now

§ 515(a) appearing before grand juries.

At least one case, United States v. Cohen,

273 F. 620 (D. Mass. 1921), dismissed an

indictment where the appointment letter

was too narrow to cover the actions--

filing informations--which the special

attorney had taken. Several other cases

dealt with whether the appointment letters

were sufficiently specific, i.e., whether

the letters had to specify particular

persons, statutes, or districts.

29.

In the United States v. Goldman, 28

F.2d 424 (D. Conn. 1928), the Court ruled

that an attorney appointed as a special

assistant to the United States attorney

for the district of Connecticut who acted

as a stenographer before the grand jury

was not lawfully present there because

his commission letter did not specify any

particular case or person.

Other cases have upheld indictments

where the appointment letter specified

several particular persons together with

"others", and persons not named in the

appointment letter were indicted.

Shushan v. United States, 117 F.2d 110

(Sth Cir. 1941), cert. denied, 313 U.S.

574, 61 S.Ct. 1085, 85 L.Ed, 1531, re-

hearing denied, 314 U.S. 706, 62 S.Ct.

53, 86 L.Ed. 564 (1941); United States

v. Amazon Industrial Chemical Corp., 55

F.2d 254 (D. Md. 1931); United States v.

Huston, 28 F.2d 451 (W.D. Ohio 1928);

United States v. Morse, 292 F. 273 (S.D.

N.Y. 1922). It must be noted, however,

that in Shushan, the appointment letter

specifically mentioned mail fraud cases,

30.

tow

and in Huston and Morse, the appointment

letters specified certain federal

statutes.

In United States v. Amazon Industrial

Chemical Corp., supra, it was also held

that the appointment letter did not have

to specify particular statutes, although

as noted above, the appointment letter

there did name several particular persons

who were to be investigated and prosecuted.

Also, in United States v. Powell, 31 F.

Supp. 288 (E.D. Mo. 1948), an indictment

for violations of federal law in a primary

election was upheld although the special

attorney's appointment letter was limited

to investigating irregularities in the

general election. The appointment letter

in Powell did specify certain federal

statutes, one of which was the basis for

the indictment there.

In United States v. Huston, 28 F.2d

451 (N.D. Ohio 1928), the Court dealt with

whether the district in which the special

attorney was to act had to be specified in

the appointment letter. The special attor-

ney there had been authorized to act in the

31.

Western District of Missouri, the District

of Minnesota, and “in any judicial district

where the jurisdiction thereof lies."

(28 F.2d at 454). The special attorney

went to the Northern District of Ohio and

began an investigation independent and un-

related to any investigation in Missouri

or Minnesota. The Court concluded that

the special attorney was not authorized

to conduct grand jury proceedings in Ohio

which were not "dependent or ancillary” to

crimes in Missouri or Minnesota (28 F.2d

at 456).

United States v. Hall, 145 F.2d 781

(9th Cir. 1944), cert. denied, 324 U.S.

871, 65 S.Ct. 1016, 89 L.Ed. 1425 (1945),

involved the establishment of a Lands

Division office in Los Angeles hy the

Justice Department which was .caffed by

special attorneys who were directed to

conduct such Lands Division cases as were

assigned to the office. The United States

attorney had agreed to the transfer of

specialized condemnation work to the Lands

Division office and was no longer signing

pleadings in condemnation cases. After

32.

the district court held it had no juris-

diction where the United States attorney

did not "‘initiate and prosecute' condem-

nation proceedings on behalf of the

Government", United States v. 1,960 Acres

of Land in Riverside County, Cal., 54 F.

Supp. 867, 882 (S.D. Cal. 1944), the

Government petitioned the Ninth Circuit

for a writ of mandamus. The Court stated

that the Act of 1906, now codified as

§ 515(a) --

“* * * authorizes the Attorney

General to institute litigation,

to enter into pending litigation,

and to cooperate with the district

attorney or to proceed to handle

such litigation independent of the

district attorney and any officer

of the Department of Justice may

act in the same manner and to the

same extent providing he is author-

ized so to do by the Attorney

General. * * * And we are further

of the opinion and we do hold that

such authorization need not be di-

rected to specifically designated

cases but may be designated and

33.

limited descriptively as was done

in the instant case by the Attor-

ney General when he authorized

Mr. Brett and the attorneys under

his immediate direction to act in

the kind of cases, to-wit, such

land cases as from time to time

shall be assigned to the Los

Angeles Lands Division office."

145 F.2d at 785. (Emphasis added.)

These cases demonstrate the difficulty

the courts have had in deciding whether

various appointment letters were "suffi-

ciently specific." United States v. Morse,

292 F. 273, 275 (S.D.N.Y. 1922). There is

authority for the proposition that the

appointment letters do not have to specify

particular persons, cases, or statutes,

and that § 515(a) should be given an in-

terpretation favoring the Attorney General's

use of its provisions. The common thread.

running through all these cases, however,

is that the appointment letters at the

very least described the type of cases

which the special attorneys were to pre-

sent to grand juries. Requiring the

34.

appointment letters to specify the type of

cases which the special attorneys are to

present is in accord with the congressional

intent, as manifested in the House Report

set out above to limit the appearances of

special attorneys to the “special case which

is of “such usual [sic] importance to the

Government" that it needs the assistance of

of an attorney "who is specially or parti-

cularly qualified by reasons of his pecu-

liar knowledge and skill." H.R. Rep. No.

2901, supra. Such a requirement limits

the power of the Attorney General to super-

sede the United States attorneys who have

the primary power and responsibility for

prosecuting "all offenses against the

United States." § 547(1)). It is with

such a requirement in mind that the recent

cases dealing with special attorneys

appointed under § 515(a) must be examined.

After the decision in United States v.

Powell, 81 F.Supp. 288 (E.D. Mo. 1948),

questions concerning the authority of spe-

cial attorneys to appear before grand

juries lay dormant for some twenty-six

years. In United States v. Williams, 65

35.

F.R.D. 422 (1974), however, Judge Oliver

raised these issues.

The Williams decision produced a

nationwide flurry of motions challenging

the authority of special attorneys to

appear before grand juries and the validity

of indictments obtained by these special

attorneys. The courts are not agreed on

whether the form letters of appointment,

identical to that used for the special

attorneys in this case, sufficiently com-

ply with the requirement of § 515(a) that

the special attorneys be "specifically

directed." In United States v. Wrigley,

392 F.Supp. 14 (W.D. Mo., March 11, 1975),

392 F.Supp. 9 (W.D. Mo., Feb. 5, 1975)

(Oliver, J.); United States v. Agrusa,

392 F.Supp. 3 (W.D. Mo., Feb. 6, and Feb.

25, 1975) (Oliver, J.); and United States

v. Crispino, 392 F.Supp. 764 (S.D.N.Y.

1975) (Werker, J.), indictments were dis-

missed because the blanket appvuintment

letters lacked any specific direction.

Other courts have, however, ruled that

special attorneys were properly authorized

to appear before the grand jury. In re:

Grand Jury Subpoenas Addressed to:

36.

Raymond L. S. Patriarca, et al., 396 F.

Supp. 859 (D.R.I. 1975); United States v.

DiGirlomo, 393 F.Supp. 997 (W.D. Mo. 1975)

(Hunter, J.); United States v. Kazonis,

391 F.Supp. 804 (D. Mass. 1975); United

States v. Weiner, 392 F.Supp. 81 (N.D. Ill.

1975); Sandello v. Curran, (No.M 11-188,

S.D.N.Y., Feb. 27, 1975) (Tenney, J.);

United States v. Brown, 389 F.Supp. 959

(S.D.N.Y. 1975) (Pollack, J.) See also,

United States v. Brodson and Halmo, 390

F.Supp. 774 (E.D. Wis. 1975) (Gordon, J).

No court of appeals has yet ruled on the

question.

None of the courts upholding the

authority of special attorneys to appear

before grand juries have seriously ques-

tioned the validity of the legislative

history set out above, nor the conclusion

that the intent of Congress in passing

what is now § 515(a) was to facilitate the

Attorney General's use of peculiarly qua-

lified attorneys to present special cases

to grand juries. Further, the cases dis-

cussed above demonstrate that the various

Attorneys General recognized that their

37.

power to supersede United States attorneys

by virtue of § 515(a) was limited to spe-

cial cases, and accordingly they did spe-

cify, at the very least, the type of

cases which the special attorneys were to

present to grand juries. See, United

States v. Hall, 145 F.2d 781 (9th Cir.

1944), cert. denied, 324 U.S. 871, 65 S.Ct.

1016, 89 L.Ed. 1425 (1945).

In United States v. DiGirlomo, supra,

one of the bases for the court's decision

upholding the authority of special attor-

neys to appear before grand juries was

that since the enactment of the Act of

1906, Congress has vested the Attorney

General with increased statutory power,

thereby granting him the raw power to

supersede the local United States attor-

neys, and has abandoned the policy of en-

thrusting primary control of federal pro-

secutions to the United States attorneys.

Such is not the case. The statutory

analysis set out above demonstrates that

while the Attorney General has substantial

supervisory power over the United States

attorneys, Congress has not relieved them

38.

from the responsibility of prosecuting all

offenses, § 547(1), and has accorded them

some degree of independence.

The conclusion that Congress has not

abandoned the requirement of § 515(a) that

special attorneys be "specifically directed

by the Attorney General" is buttressed by

the failure of an amendment to § 515(a) in

1945. As set forth in United States v.

Crispino, supra, n. 40, identical Senate

(S. 1519) and House (H.R. 4470) bills were

introduced which would have eliminated

§ 515(a)'s requirement that special attor-

neys be "specifically directed by the

Attorney General." The Senate Bill was

referred to the Committee on the Judiciary

on October 26, 1945, but was never reported

out.

If special attorneys were allowed to

appear in any of the several states for

various purposes without specificity in

their direction, and with such broad lan-

guage that there is no limitation to their

power, the end result will be a usurpation

of the significance, practicality, effec-

tiveness and power of the several United

39.

States Attorneys. The system by which

federal districts have their own United

States Attorney (District Attorney) is

engrained in our system of government and

insures decentralization of absolute power.

To judicially emasculate the United States

Attorneys in contravention of clear con-

gressional mandate constitutes unwarranted

surgery and improper use of the legal

scalpel. Guarantees have been written

into 28 U.S.C. 515(a) and the court may

not nullify that legislation absent a

direct attack of unconstitutionality. If

anything, the passage of time has accen-

tuated the need for reasonable specificity

in letters of authority. Past abuses, no

matter how long existing, should not be

allowed to continue. The recent federal

experience at the highest level of the

executive branch of government has clearly

shown that the concentration of power

leads to abuse.

The conclusion evident from the legis-

lative history of § 515(a) is that Congress

intended to grant the Attorney General

power to supersede the United States

40.

attorneys’ responsibilities for presenting

cases to grand juries only where a case or

a specific area of law enforcement was of

such special importance that a specially

qualified attorney was desirable. This

limitation of the Attorney General's power

under § 515(a) was acquiesced in for de-

cades, as the appointment letters specified

the types of cases which the special attor-

neys were to conduct. The fact that

§ 515(a)'s requirement that the special

attorneys be "specifically directed by

Attorney General" remains valid is evident

from the recent cases discussed above. It

is necessary, therefore, to examine the

special attorneys' appointment letters to

judge whether they comply with the require-

ment of § 515(a) which has been identified.

The first paragraph of both Mr, Break-

stone's and Mr. Lyons; purported appoint-

ment letters provide as follows:

"The Department is informed

that there have occurred and are

occurring in the Northern District

of California and other judicial

districts of the United States

41.

violations of federal criminal

statutes by persons whose iden-

tities are unknown to the

Department at this time.”

The second paragraph appoints each man as

a special attorney to assist in the trial

of and conduct proceedings in the "afore-

said cases." The only reasonable meaning

which can be ascribed to the "aforesaid

cases" is that it refers to the cases

identified in the first paragraph. But all

the first paragraph states is that the cases

are ones involving "violations of federal

criminal statutes." There is no attempt

to specify the particular statutes which

are to be enforced or the types of cases

which are to be presented to grand juries.

There is no attempt to specify what makes

these cases of such “particular importance"

that a "specially or particularly qualified"

attorney is necessary. These letters ac-

tually directed Breakstone and Lyon to

enter into the Northern District of

California "and other judicial districts

of the United States" and conduct grand

jury proceedings with regard to any cases

42.

involving the violation of any federal

criminal statute by any person. In other

words, they are authorized to replace the

United States attorney in the investiga-

tion and prosecution of the criminal laws

of the United States

This statement by Judge Werker in

United States v. Crispino, supra, is

applicable here:

"The commission letter * * *

is a bold assertion of authority

by the Attorney General to appoint

special attorneys in any case re-

gardless of its importance and re-

gardless of whether any particular

skill or knowledge is required.

If upheld it would allow these

special attorneys to supersede

the local United States Attorneys

and their regular assistants,

whose statutory duty for the last

186 years has been to prosecute

all offenses against the United

States in their districts, in any

cases involving a violation of a

"federal criminal statute'.

43.

Congress never intended to give

such a broad authority when it

passed the Act of 1906 * * * *

392 F.Supp. at 779.

The roving commission granted to Mr.

Breakstone and Mr. Lyon by their "appoint-

ment letters" does not comply with the

recuirement of § 515(a) that they be

"specifically directed by the Attorney

General".

Since Mr. Breakstone and Mr. Lyon were

not lawfully authorized to appear before

the grand jury, their unauthorized pre-

sence requires a reversal of Petitioner's

convictions based on the indictment

returned by said grand jury.

2. CERTIORARI SHOULD BE GRANTED TO

REVIEW THE REFUSAL OF THE TRIAL

COURT, AFFIRMED BY THE COURT OF

APPEALS, TO GRANT PETITIONER'S

MOTION FOR A SEPARATE TRIAL.

As is fully argued in Petitioner's

Opening [P. 18, et seg.] and Reply Briefs

[P. 12, et seq.] in the Ninth Circuit Court

Court of Appeals, copies of which have

44,

eS ee

Ons etal = ere. ae ee ee ee ee

been lodged with this Court, a severance

is proper where a defendant will be

prejudiced by a joinder of defendants.

Although Petitioner's Opening Brief

[P. 18, et seq.] specifies numerous

grounds for the requested severance, the

most important are the facts that if a

severance were granted, the testimoney of

DOUGLAS CASSIDY, a co-defendant, would

have been available and would have com-

pletely exculpated Petitioner. An affida-

vit was filed on behalf of co-defendant

GERALD ENIS in which co-defendant CASSIDY

informed the court that he had exculpatory

evidence to provide as to ENIS. Ifa

separate trial had been granted, once ENIS

took the stand, Petitioner could have

fully questioned him since he would have

already waived his Fifth Amendment pri-

vilege. Absent a separate trial, Peti-

tioner lost his ability to obtain this

evidence and present all of the facts to

the jury.

Since such exculpatory evidence could

have affected the decision of the jury,

it was an abuse of discretion for the

45.

trial court to have denied Petitioner a

separate trial. In addition, as pointed

out in Petitioner's briefs, if a severance

had been granted, the bulk of the evidence

offered at trial could not have been in-

troduced. The decision of the jury would

very likely have been different in such a

situation. As such, certiorari should be

granted to review such decision by the

trial court and subsequently by the Court

of Appeals.

3. CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF THE COURT OF APPEALS

SHOULD HAVE REVERSED THE CONVIC-

TIONS OF. PETITIONER DUE TO THE

PREJUDICE AND LACK OF IMPARTIAL-

ITY OF THE DISTRICT COURT TRIAL

JUDGE.

As pointed out in Petitioner's Opening

Brief [P. 63, et seq.] before the Ninth

Circuit, the trial judge who presided over

all motions and proceedings in this case

was so partial to the prosecution that the

result was a denial of Petitioner's due

process rights to a fair trial. As such,

Petitioner's convictions should be

reversed.

46.

It is always easy to maintain that a

trial judge did not possess the requisite

impartiality essential to a fair trial and

to assure both the dignity of the court

and an atmosphere of justice. It is rare,

however, when a Judge's own statements

make his inability to be impartial emmin-

ently clear. In the instant manner the

trial judge, upon a motion having been

made, made the following statement:

"17 days today, and we've got

two days to go, and I don't intend

to let anything happen to this

case right now. I want to let

you know that right now. We are

here, and everybody is here, and

if anybody is making any motions

to sever or any more motions for

dismissal or mistrial or what

have you, I can give you an in

limine decision right now and

that's going to be that they are

all denied and we are all going

to stay here, and we are going to

try this case, and if there is

any problems, you can take it up

with the Appellate Court later on,

47.

but we are here, and we will do

it very orderly, and if the

defense wants to do it that way,

then we will let them do it that

way." ([R.T. 3058, 3059].

With the various defense lawyers mak-

ing courteous and appropriate motions, the

trial court saw fit to state that if there

were any more motions for anything or

"what have you", they were all going to be

denied. It is axiomatic that a court can-

not determine whether it is going to grant

or deny a future motion until such motion

is made and then upon the facts at that

time existing. For a court to indicate

that all future motions would be denied

removed both the appearance and the fact

of a fair trial.

48.

4. CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF THE COURT OF APPEALS

SHOULD HAVE REVERSED THE CONVIC-

TIONS OF PETITIONER DUE TO THE

INTERFERENCE BY THE COURT CLERK

WITH MEMBERS OF THE JURY DURING

THEIR DELIBERATIONS.

As is discussed fully in Petitioner's

Opening [P. 65, et seg.] and Reply Briefs

[PP. 20 and 21] before the Ninth Circuit,

the Court clerk was observed apparently

arguing with members of the jury during

their deliberations. This was brought to

the Court's attention and the trial court

said it would determine the nature of the

occurrence, but did not inform defense

counsel of his findings. Without further

information, it must be assumed that pre-

judice resulted since it is a foundation

of our judicial system that the integrity

of the jury process in criminal cases be

steadfastly protected at all costs. Fail-

ure of the trial court to determine the

nature of the interchange between the

Court clerk and the jury requires reversal

of Petitioner's convictions.

49.

5. CERTIORARI SHOULD ALSO BE GRANTED

TO DETERMINE WHETHER THE COURT

OF APPEALS SHOULD HAVE REVERSED

THE CONVICTIONS OF PETITIONER DUE

TO THE FOLLOWING, WHICH ARE FULLY

DISCUSSED IN PETITIONER'S OPENING

[O.B.] AND REPLY BRIEFS [R.B.]

BEFORE THE NINTH CIRCUIT.

(A) Prosecutorial misconduct during

opening and closing arguments [O.B. P. 34,

et seq.; R.B. P. 17, et seq.];

(B) Insufficiency of the evidence

[O.B. P. 47, et seg.; R.B. P. 9, et seq.];

connections [0.B. P. 56, et seq.; R.B. P.

(D) Failure to instruct the jury as

requested by Petitioner and instruction of

the jury over Petitioner's objections

[O.B. P. 59, et seg.];

(E) Varying the Order of Proof as to

conspiracy [O.B. P. 62, et seq.];

(F) Refusal to dismiss the entire jury

panel due to the prejudice and bias caused

by pre-trial publicity [R.B. P. 21, et seq];

50.

TSS ee

bg a ry) mn 3m

(G) Failure to comply with the mandate

of Brady v. Maryland, supra, requiring

that exculpatory evidence be timely pre-

sented to a defendant accused of crime;

and

(H) The Ninth Circuit Court of Appeals

either ignored an uncontroverted part of

the evidence or misunderstood its

significance:

The Appellate Court's Opinion reads

as if Senator Dolwig had not been candid

with other "clients" of Eurovest. In fact,

however, the government called as one of

its witnesses BYRON LASKY, a potential

client of Eurovest. He testified he went

to see Senator Dolwig "looking for some

assurances, some confidence-building

words." Dolwig told Lasky that his rela-

tionship with Eurovest was new and that

he had not engaged in any prior trans-

actions with it. He informed Lasky that

he, Dolwig, was merely acting as escrow

agent and that he had never seen a letter

of credit from Eurovest, nor knew of a

completed Eurovest transaction. Because

of this conversation with Senator Dolwig,

51.

Mr. Lasky decided not to do business with

Eurovest. It was a direct result of

Dolwig's candor and honesty that Lasky

did not become a victim. Dolwig's state-

ments to Lasky are illustrative of his

lack of criminal intent and affirmatively

show that Dolwig was not a conspirator.

This positive showing on Dolwig's behalf

clearly indicates innocence and was intro-

duced by the government and cannot be

ignored [0.B.].

Each and all of these points denied

Petitioner a fair trial and require rever-

sal of his convictions. Appellant RICHARD

J. DOLWIG adopts and respectfully asks the

Court to consider the points raised and

authorities stated in the Petitions for

Writ of Certiorari filed on behalf of

WALTER STRADLEY and EARL VOGT, including,

but not limited to, the failure of the

government to properly and adequately

conform to the requirements of Brady v.

‘ Maryland, supra

52.

CONCLUSION

For the reasons set forth above, it

1s respectfully submitted that this

Petition for Writ of Certiorari should be

granted.

Respectfully submitted

GODFREY ISAAC, ESQ. and

LAWRENCE JAY KRAINES, ESQ.

LAW OFFICES OF

GODFREY ISAAC

A Professional Corpcration

Attorneys for Petitioner

RICHARD J. DOLWIG

APPENDIX A

APPENDIX A.

UNITED STATES v. KAPLAN

AMENDED: September 6, 1977

UNITED STATES of America,

Appellee,

Vv.

David KAPLAN, Appellant.

UNITED STATES of America,

Appellee,

David GORWITZ, Appellant.

UNITED STATES of America,

Appellee,

Richard DOLWIG, Appellant.

UNITED STATES of America,

Appellee,

Earl VOGT, Appellant.

UNITED STATES of America,

Appellee,

Walter STRADLEY, Appellant.

UNITED STATES of America,

Appellee,

Douglas CASSIDY, Appellant.

Nos. 76-1319, 76-1318, 75-3418, 75-3423,

75-3428 and 75-3337.

United States Court of Appeals,

Ninth Circuit.

May 26, 1977.

Rehearing and Rehearing En Banc

Denied Sept. 6, 1977.

Seven defendants’ were indicted

upon multiple charges of mail fraud and

wire fraud, together with conspiracy, in

1042

connection with a fraudulent scheme to

obtain advance fees for promised loans, i.

e., letters of credit, which were never

delivered. Defendants were convicted in

the United States District Court for the

Northern District of California, Samuel

Conti, J., and defendants appealed. The

Court of Appeals held, as to one count,

that use of the mails that is not a step

toward receipt of fruits of the scheme is

not a violation of the mail fraud statute.

Affirmed in part; reversed in part;

remanded for entry of modified sentence

in one case.

1. Criminal Law ¢753.2(5), 1159.2(1)

Test of sufficiency of evidence,

whether in deciding motion for acquittal

or on review o; that decision on appeal,

is whether, viewing evidence in light

most favorable to Government as pre-

vailing party, court is satisfied that jur-

ors reasonably could decide that they

would not hesitate to act in their own

serious affairs upon factual assumptions

as probable as conclusions that defend-

ant is guilty as charged.

2. Conspiracy <=47(4)

Evidence including proof that partic-

ular defendant did nothing to stop fraud

or warn others after he had been told

scheme probably was total fraud permit-

ted jury to infer from evidence that par-

ticular defendant knowingly participated

in conspiracy to defraud. Fed.Rules

Crim.Proc. rule 29, 18 U.S.C.A.; 18 U.S.

C.A. § 1341.

3. Criminal Law 745, 747

It was for jury to resolve evidentia-

ry conflicts and draw reasonable infer-

ences therefrom, and they could draw

inference of criminal intent from circum-

stantial evidence. Fed.Rules Crim.Proc.

rule 29, 18 U.S.C.A.

Synopses, Syllain and Key Number (Classification

The Svnopses, Syliati and Key Number Classifi-

cation constitute no part of the opimon of the court

1043 UNITED STATES v. KAPLAN

4. Conspiracy @47(4)

Evidence which showed that one

particular defendant was deeply involved

in most of fraudulent transactions and

that he and another defendant continual-

ly engaged in reassuring victims as to

legitimacy of their operation and that

the latter defendant was courier of non-

existent letters of credit and took posses-

sion of at least part of advance funds

which eventually found their way into

joint bank account in Bahamas belong-

ing to both such defendants permitted

jury to find guilt of conspiracy. 18 U.S.

C.A. §§ 371, 1341.

5. Criminal Law 554

Jury was not compelled to believe

testimony of particular defendant, who

made false representations, that he was

acting solely in role of FBI informer.

Fed.Rules Crim.Proc. rule 29, 18 U.S.C.A.

6. Conspiracy @41

Where at least one of appealing de-

fendants performed one or more of ille-

gal acts charged, and acts charged were

in furtherance of conspiracy, all of them

became guilty of substantive acts by vir-

tue of their participation in the conspir-

acy. Fed.Rules Crim.Proc. rule 29, 18

U.S.C.A.; 18 U.S.C.A. § 371.

7. Post Office #=35(2)

To violate mail fraud statute, de-

fendant must be involved in scheme to

defraud, and he must cause mailing for

purpose of executing that scheme. 18

U.S.C.A. § 1341.

8. Post Office #=49(11)

Evidence permitted finding that

there was scheme to defraud, that par-

ticular defendant was involved, and that

mailing occurred, and that such defend-

ant caused mails to be used in that it

was reasonably foreseeable that his oral

representations would result in use of

mails to obtain written confirmation, but

where, although oral representations

made by particular defendant were in

furtherance of fraudulent scheme, such

letter in response to the representations

was not, conviction for mail fraud could

not be sustained. 18 U.S.C.A. § 1341.

9. Post Office =35(8)

Use of mails that is not step toward

receipt of fruits of scheme is not viola-

tion of mail fraud statute. 18 U.S.C.A.

§ 1341.

10. Criminal Law <=—622(4, 5)

Motions to sever must be timely

made and properly maintained, or right

to severance will be deemed waived.

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

11. Criminal Law c= 144.2(2)

To preserve point, motion to sever

must be renewed at close of all evidence,

but requirement is not inflexible, and

waiver may be absent if motion accom-

panies introduction of evidence deemed

prejudicial and if renewal! at close of all

evidence would constitute unnecessary

formality; diligent pursuit of severance

motion is the guiding principle. Fed.

Rules Crim.Proc. rule 14, 18 U.S.C.A.

12. Criminal Law @—622(1)

Ordinarily denial of motion to sever

must be viewed as of time of denial:

only in rare cases will trial court's fail-

ure to reopen, sua sponte, question of

severance constitute abuse of discretion.

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

13. Criminal Law o622(1)

Trial court, in considering motion to

sever based upon defendant's insistence

that codefendant will provide exculpato-

ry testimony after severance, must

weigh, inter alia, good faith of d«fend-

ant’s attempt to have codefendant testi-

fy, possible weight and credibility of pre-

dicted testimony, probability that it will

UNITED STATES v. KAPLAN 1044

materialize, economy of joint trial, and

possibility that trial strategy of a code-

fendant will be prejudicial. Fed.Rules

Crim.Proc. rule 14, 18 U.S.C.A.

14. Criminal Law ¢=622(5)

Any right of particular defendant to

severance was waived by failure to dili-

gently pursue motion made before trial.

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

15. Criminal Law ¢=622(5)

Where trial court had indicated that

renewal of severance motion would be

useless, right to seek severance was not

waived by failure to renew motion at

close of all evidence. Fed.Rules Crim.

Proc. rule 14, 18 U.S.C.A.

16. Criminal Law @622(3)

Affidavit by codefendant would

have strengthened credibility of his pro-

posed testimony, for purposes of deter-

mining whether motion for severance

was properly denied, but affidavit would

not be required under circumstances of

case, in which summaries by counsel

were furnished. Fed.Rules Crim.Proc.

rule 14, 18 U.S.C.A.

17. Criminal Law @622(3)

Summaries of expected testimony

which demonstrated only “remote likeli-

hood” that exculpatory testimony by co-

defendant would become available were

insufficient to establish abuse of discre-

tion in denying motion for severance.

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

18. Criminal Law <=622(2)

Where particular defendant obtained

benefit of codefendant’s opinion that

particular defendant was victim of

wrongdoing rather than wrongdoer,

through cross-examination of agents,

agents’ testimony was not adequate sub-

stitute but strengthened resolve of re-

viewing court not to characterize trial

court’s refusal to sever us abuse of dis-

cretion. Fed.Rules Crim.Proc. rule 14, 18

U.S.C.A.

19. Criminal Law @622(2)

Where certain evidence was put he-

fore jury which was admissible with re-

spect to other defendants but not admis-

sible against particular defendant, fun-

damentai issue was whether jury could

be expected to keep separate the evi-

dence as it pertained to each jointly tried

defendant, and best indication of such

ability of jury to compartmentalize was

its failure to convict all defendants.

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

20. Criminal Law © 1169.1(1)

Complaint of references during trial

and entrapment defense of codefendant

were not grounds for reversal of convic-

tion where reviewing court concluded

that jury could and did compartmental-

ize the evidence properly.

21. Criminal Law @822(1)

Adequacy of jury instructions is not

determined by giving or failure to give

any one or more instructions but by ex-

amining instructions as a whole.

22. Criminal Law @829(3)

Entrapment instruction given by

court, when read in pari materia with

instructions on specific intent, willfulness

and knowledge, adequately presented de-

fense of lack of criminal intent, and

there was no error in refusing to give

particular instruction sought by particu-

lar defendant in mail fraud and conspir-

acy prosecution, including requested in-

struction relating to such defendant’s

claim that it lucked requisite criminal

intent because he was acting as govern-

ment informant. 18 U.S.C.A. §§ 371,

1341, 2314.

23. Criminal Law c=829(3)

Where, although one identical spe-

cific-intent instruction was given as to

1045 UNITED STATES v. KAPLAN

all defendants in prosecution for mail

fraud, wire fraud, and conspiracy, court

did instruct jury that each defendant

was entitled to have his case determined

from evidence as to his own acts and

statements and conduct, leaving out of

consideration entirely any evidence ad-

mitted solely against some other defend-

ant or defendants, particular defendant

was not prejudiced by absence of sepa-

rate specific-intent instruction applicable

to him alone.

24. Criminal Law *=706(2)

In view of issue whether particular

defendant was abused, faithful, confi-

dential informer or faithless double

agent, resolution of which required that

beginning of story be told, there was no

error in Government’s bringing up, dur-

ing questioning of federal agent, point

that particular defendant had first come

to attention of FBI when that agency

was asked to watch such defendant

board plane for England so that his at-

tire could be described to Scotland Yard,

nor was there error in supplementation

by hearsay intelligence that such defend-

ant was of interest because of his possi-

ble role in international transportation

of stolen securities.

25. Criminal Law = 1037.1(3)

Record failed to demonstrate that

there was fundamentally erroneous fail-

ure on part of prosecutor to present ex-

culpatory evidence of particular defend-

ant’s status as government informer, in

view of fact that defendant failed to

show that his role as informer actually

exculpated him and that he was there-

fore prejudiced by the challenged prose-

cutorial conduct.

*The Honorable James M. Fitzgerald, United

States District Judge for the District of

Alaska, sitting by designation.

26. Indictment and Information 144,

144.2

Motions to dismiss indictment must

be made before trial or they are waived,

but trial court may defer determination

of the motion or grant relief from waiv-

er for good cause. Fed.Rules Crim.Proc.

rules 12(b\2), (f), 52(b), 18 U.S.C.A.

27. Indictment and Information 144

Failure to include particular ground

in pretrial motion to dismiss indictment

was excusable where defendant did not

receive transcript of relevant grand jury

proceedings until midway through trial,

but there was no similar excuse for fail-

ure to renew motion during trial. Fed.

Rules Crim.Proc. rules 12(b\2), (f), 52{b),

18 U.S.C.A.

28. Grand Jury @34 /

Prosecution may exercise wide dis-

cretion in grand jury proceedings.

Appeals from the United States Dis-

trict Court for the Northern District of

California.

Before GOODWIN and SNEED, Cir-

cuit Judges, and FITZGERALD,” Dis-

trict Judge.

PER CURIAM: **

Seven defendants were indicted upon

multiple charges of mail fraud and wire

fraud, together with conspiracy, in con-

nection with a fraudulent scheme to ob-

tain advance fees for promised loans (let-

ters of credit) which were never deliv-

ered. The six appellants whose com-

bined appeals are now before us present

a wide variety of challenges to their con-

victions.

** Because of the number and complexity of

the issues, all members of the panel partics-

pated in the writing of this opimon.

UNITED STATES v. KAPLAN 1046

1. FACTS

During the last part of 1974, a high

demand for venture capital to develop

real estate stimulated efforts to find

money outside of traditional banking

channels. All the methods, both legiti-

mate and illegitimate, traded upon the

willingness of developers to pay a premi-

um for venture capital. David Kaplan

and David Gorwitz, two of the appel-

lants, were early organizers of a corpo-

rate entity known as Eurovest, chartered

in the Cayman Islands, British West In-

dies. Eurovest, through one or more of

the defendants, located individuals wh»

were seeking to borrow large sums of

money, and promised to arrange letters

of credit. The victims were told that

the letters of credit could be pledged to

obtain capital for their projects.

In return for the promised financing,

Eurovest would request ownership of

some percentage of the venture. Most

important, Eurovest required the victims

to pay an “advance fee” to cover the

alleged expenses of securing the letters

of credit. More than $150,000 in ad-

vance fees were paid to Eurovest, but no

letters of credit were ever issued nor

were the advance fees returned.

Viewed in a light most favorable to

the government, the evidence produced

at trial showed that each of the appel-

lants played a role in the scheme.

Appellant Vogt was a management

consultant from New York. He testified

that the major service he offers his

clients is aid in locating financing for

business ventures. Vogt was the initial

contact between Eurovest and eight of

the thirteen businessmen who negotiated

with Eurovest. Each of the eight men

Vogt contacted subsequently dealt with

appellant Stradley, who was the acting

attorney for Eurovest.

Vogt represented to the victims that

Eurovest was backed by a prestigious

and wealthy Florida family (the Duvals),

and that Eurovest had millions of dollars

in securities which could be pledged to

secure letters of credit.

Appellant Dolwig was prominent in

state politics. He was made the trustee

of the “escrow” account into which the

advance fees were paid. As a California

State senator, his connection with Euro-

vest was supposed to lend credibility and

prestige to the enterprise. On occasion,

Senator Dolwig reassured victims as to

the substantiality of the principals be-

hind Eurovest. His main function in the

scheme was to receive advance fees, hold

them in his trust account, and turn them

over to Eurovest upon written instruc-

tions from the corporation.

Appellant Cassidy, an insurance agent,

sent insurance binders to some of the

victims. These binders purported to pro-

tect any advance fees paid by the vic-

tims in the event that the promised let-

ters of credit were not forthcoming.

From time to time, Cassidy was called

upon to vouch for the reliability of the

Eurovest enterprise.

The mastermind of the scheme appar-

ently was David Kaplan. It was Kaplan

who approved the “loans” to various vie-

tims, engaged Senator Dolwig to become

the west coast “escrow”, convinced the

Duval family to lend its name to Euro-

vest by furnishing the sole director and

trustee of the corporation. Kaplan also

personally negotiated with most of the

victims.

Appellant Gorwitz worked with Ka-

plan. Gorwitz was the international

money courier. Most of the fees from

the victims were paid into Dolwig’s

account and then were turned over to

Gorwitz. It was Gorwitz who was to

1047

deliver the letters of credit to the vic-

tims.

Much of the government's proof cen-

tered around the experience of one Paul

Heck. Heck paid $60,000 in advance

fees to Eurovest. When Eurovest failed

to deliver its promised letter of credit,

Heck began to pursue the Eurovest prin-

cipals around the country. He made

representations to Kaplan, Dolwig, Vogt,

and Stradley that the entire Eurovest

operation was fraudulent. Heck also

warned Arthur Lachman, a broker who

was dealing with Eurovest on behalf of

2 client named Conrad Preiss. Lachman,

in turn, warned Vogt and Stradley.

This evidence became important when

some of the defendants insisted that

their representations to the victims of

Eurovest had been made in good faith.

Il. SUFFICIENCY OF THE

EVIDENCE

A. Conspiracy Counts

All the appellants challenge the trial

court’s denial of the motions for acquit-

tal under Fed.R.Crim.P. 29 and for a

new trial, on the grounds that the evi-

dence was insufficient to convict them.

{1] As a practical matter, the tria:

court in deciding a motion for acquittal

in a criminal case and the court review-

ing that decision on appeal use the same

test. United States v. Leal, 509 F.2d 122

(9th Cir. 1975); United States v. Nelson,

419 F.2d 1237, 1241 (9th Cir. 1969). That

is, viewing the evidence in a light most

favorable to the government as prevail-

ing party, is the court satisfied that the

jurors reasonably could decide that they

would not hesitate to act in their own

serious affairs upon factual assumptions

as probable as the conclusions that the

defendant is guilty as charged? United

States v. Nelson, supra.

UNITED STATES v. KAPLAN

With that test in mind, we turn to

appellants’ arguments:

1. Dolwig.

{2] The government's proof at trial

showed that, among other things, Doiwig

performed the following acts in relation

to the Eurovest scheme: As trustee of

the account into which the advance fees

were deposited, he participated in setting

up a fictitious “escrow”. There was no

escrow, and Dolwig knew it. The

account was simply a conduit to move

money from the victims to Gorwitz.

Dolwig reassured Paul Heck as to the

substantiality of the Eurovest principals;

he failed to inform other Eurovest

“clients” after he knew of problems Paul

Heck was having in securing his letter of

credit; he appeared with appellant Ka-

plan in a hotel different from the one in

which Kaplan had told Heck he would

be, and Dolwig’s wife aided Kaplan in

eluding Heck.

Dolwig does not question the factual

accuracy of the government's proof, but

contends that it fails to establish the

requisite intent on his part to join or

participate in the conspiracy. Dolwig

claims that he himself was a victim who

was duped into lending his good name to

the Eurovest enterprise. This was a

question for the jury. Although the evi-

dence against Dolwig is entirely circum-

stantial, it does not have to exclude ev-

ery hypothesis but that of guilt. United

States v. Nelson, supra. Once the exist-

ence of a conspiracy is shown, only slight

evidence is needed to connect a defend-

ant with it. United States v. Marotta,

518 F.2d 681, 684 (9th Cir. 1975); Fox v.

United States, 381 F.2d 125, 129 (9th Cir.

1967).

The jury could infer from the evidence

that Dolwig knowingly participated in

the conspiracy. It was proved that he

UNITED STATES v. KAPLAN

did nothing to stop the fraud or warn

others after Heck had told him that the

scheme probably was a total fraud.

“* * * [A) conspirator’s intent to de-

fraud may be inferred from the fact that

he personally knew that the venture was

operating deceitfully * * *.” Phillips

v. United States, 356 F.2d 297, 303 (9th

Cir. 1965), cert. denied, 384 U.S. 952, 86

S.Ct. 1573, 16 L.Ed.2d 548 (1966). As we

hold that the jury’s decision had support

in the evidence, we must affirm Dolwig’s

conviction of conspiracy in this case.

2. Vogt and Stradley.

Both Vogt and Stradley admit that

they engaged in various business trans-

actions on behalf of Eurovest. However,

they claim that they were duped into

believing that Eurovest was a legitimate

operation. Vogt testified that, but for a

lack of funds, he would have invested his

own money in Eurovest letters of credit.

The government contends that Vogt

and Stradley intended to defraud, and

that such intent was shown by their con-

duct after receiving warnings from both

Heck and Lachman that the scheme was

a fraud. That is, Vogt and Stradley con-

tinued to negotiate deals with other Eu-

rovest victims without any mention of

Heck’s and Lachman’s warnings and ac-

cusations.

{3} Credibility was for the jury. The

jury had to resolve evidentiary conflicts

and draw reasonable inferences there-

from. United States v. Nelson, supra;

United States v. Barham, 466 F 2d 1138,

1140 (9th Cir. 1972), cert. denied, 410

U.S. 926, 93 S.Ct. 1356, 35 L.Ed.2d 587

(1973). An inference of criminal intent

can be drawn from circumstantial! evi-

dence. United States v. Childs, 457 F.2d

173 (9th Cir. 1972); United States v. Os-

wald, 441 F.2d 44 (9th Cir. 1971).

We agree with the trial judge that the

jury could reasonably have inferred from

the evidence that Vogt and Stradley pos-

sessed the intent to participate in the

conspiracy.

3. Kaplan and Gorwitz.

[4] By reference to the briefs of the

other appellants, Gorwitz and Kaplan

challenge the sufficiency of the evidence

which led to their conspiracy conviction.

It cannot, however, be seriously contend-

ed that the evidence as to these two

appellants is insufficient.

There was ample testimony, which the

jury reasonably could believe, showing

that Kaplan was deeply involved in most

of the fraudulent Eurovest transactions.

Gorwitz and Kaplan continually engaged

in reassuring victims as to the legitimacy

of their operation.

Gorwitz was named as courier of the

nonexistent letters of credit. Addition-

ally, he took possession of at least part

of the advance funds which had been

deposited in the Dolwig “escrow”

account. These funds eventually found

their way into a joint bank account in

the Bahamas which belonged to Kaplan

and Gorwitz.

At trial, Kaplan, testifying in his own

behalf, attempted to place the culpability

for this enterprise upon unindicted co-

conspirator Duval. The government pro-

vided testimony to the contrary which

the jury was entitled to believe. The

evidence connecting Kaplan and Gorwitz

with the conspiracy is more than suffi-

cient.

4. Cassidy.

[5] By reference to the briefs of the

other appellants, Cassidy challenges the

sufficiency of the evidence which con-

victed him of the conspiracy in this case.

1049 UNITED STATES v. KAPLAN

At trial, the government produced evi-

dence which showed that Cassidy was

actively involved in the Eurovest opera-

tion. He made false representations

concerning the enterprise and he sold in-

surance “binders” which purported to

protect any fees advanced by the vie-

tims. These “binders” were an integral

part of the scheme. Victims would not

proffer advance fees without some form

of protection. In fact, however, Cassi-

dy’s “binders” did not protect the fees,

and Cassidy knew that his “binders

were worthless.

Cassidy does not contest most of these

facts. Instead he argues that he did not

have any intent to join and participate

in the conspiracy. On the contrary, he

says, he was acting solely in the role of

an F.B.I. informer throughout his associ-

ation with Eurovest.

The government produced witnesses

who testified that Cassidy went beyond

his informant role in making false repre-

sentations to Eurovest victims. Also,

the testimony showed that Cassidy did

not inform the F.B.I. that he had made

such representations.

The jury was entitled to believe that

Cassidy actively participated in the Eu-

rovest scheme and that he had the neces-

sary intent to defraud. The jury was

not required to believe that Cassidy was

acting solely as a government informant,

and it did not. Therefore, we affirm

Cassidy's conviction on the conspiracy

count.

B. Substantive Counts

([6] With one exception, the evidence

was sufficient to support the convictions

of the appellants on all substantive

counts charged. At least one of the ap-

pellants performed one or more of the

illegal acts charged, and the acts charged

were in furtherance of the conspiracy.

All the appellants became guilty of the

substantive acts by virtue of their partic-

ipation in the conspiracy. Pinkerton v.

United States, 328 US. 640, 6 S.Ct.

1180, 90 L.Ed. 1489 (1946).

The one exception is Count 22, which

charges the appellants with mail fraud

in connection with a letter sent from

Arthur Lachman to Cassidy. We find

that the evidence is insufficient to sup-

a conviction on this count. The

‘court should have granted the Rule 2

motion for acquittal on Count 22.

Lachman was a “money broker” who

was negotiating with Eurovest on behalf

of his clients. Lachman was concerned

with obtaining insurance to protect any

advance fees which were paid into the

Dolwig account. In his negotiations

with Eurovest, Lachman had occasion to

speak with Cassidy in a conference call

which included Kaplan. Cassidy made

representations to Lachman concerning

the extent of coverage that Cassidy's in-

surance company would provide.

Some time after this phone call, Lach-

man mailed the Count 22 letter to Cassi-

dy. In it he asked for a confirmation of

the oral representations Cassidy had

made on the telephone. Cassidy sent no

such confirmation.

(7] The letter from Lachman to Cas-

sidy could not form the basis of the mail

fraud charged in Count 22 of the indict-

ment, 18 U.S.C. § 1341. To violate

§ 1341, a defendant must be involved in

a scheme to defraud, and he must cause

a mailing for the purpose of executing

that scheme. Pereira v. United States,

347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435

(1954).

[8,9] The evidence supports a finding

that (a) there was a scheme to defraud,

(b) Cassidy was involved, and (c) a mail-

ing occurred. Furthermore, the evulence

UNITED STATES v. KAPLAN 1050

supports the conclusion that Cassidy

caused the mails to be used in that it

was reasonably foreseeable that Cassi-

dy’s oral representations to Lachman

would result in the use of the mails to

obtain a written confirmation. See

United States v. Maze, 414 U.S. 395, 399,

94 S.Ct. 645, 38 L.Ed.2d 603 (1974); Per-

eira v. United States, 347 U.S. at 8-9, 74

S.Ct. 358.

However, to affirm this conviction we

must also find that this mailing was in

furtherance of the scheme to defraud.

Use of the mails that is not a step to-

ward receipt of the fruits of the scheme

is not a violation of § 1341. United

States v. Maze, supra; Kann v. United

States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed.

88 (1944); United States v. Staszeuk, 502

F.2d 875 (7th Cir. 1974), modified en

banc on other grounds, 517 F.2d 53, cert.

denied, 423 U.S. 837, 96 S.Ct. 65, 46

L.Ed.2d 56 (1975); Henderson v. United

States, 425 F.2d 134 (5th Cir. 1970).

Although the oral representations

made by Cassidy were in furtherance of

the Eurovest scheme, the letter from

Lachman in response to those represen-

tations was not. Therefore, the convic-

tions of those appellants who were con-

vieted on Count 22 of the indictment are

reversed.

Ill. SEVERANCE FROM TRIAL

OF CASSIDY

Appellants Kaplan, Gorwitz, Vogt,

Stradley, and Dolwig insist that each

should have had his trial severed from

that of Cassidy. Each insists that his

joinder with Cassidy prejudiced him suf-

ficiently to require severance pursuant

to Fed.R.Crim.P. 14.

{10,11} To evaluate these contentions

it is helpful to set forth certain princi-

ples. Motions to sever must be timely

made and properly maintained, or the

right to severance will be deemed

waived. United States v. Figueroa-Paz,

468 F.2d 1055 (9th Cir. 1972). To pre-

serve the point, the motion to sever must

be renewed at the close of all evidence.

468 F.2d at 1057. This requirement is

not an inflexible one; waiver may be

absent when the motion accompanies the

introduction of evidence deemed prejudi-

cial and a renewal at the close of all

evidence would constitute an unneces-

sary formality. Diligent pursuit of a

severance motion is the guiding princi-

ple. United States v. Burnley, 452 F.2d

1133 (9th Cir. 1971); Williamson v. Unit-

ed States, 310 F.2d 192 (9th Cir. 1962).

Premature motions to sever not diligent-

ly pursued as the prejudicial evidence

unfolds cannot serve as_ insurance

against an adverse verdict.

On another occasion we have observed:

“The power vested in the district

corrt pursuant to Rule 14 is discretion-

a:,, and the only question on appeal is

whether such discretion has been

abused. Parker v. United States, 404

F.2d 1193 (9th Cir. 1968),-cert. denied,

394 US. 1004, 89 S.Ct. 1602, 22

L.Ed.2d 782 (1969). The test is wheth-

er a joint trial is so prejudicial to one

defendant as to require the exercise of

that discretion in only one way, that

is, by ordering a separate trial.” Unit-

ed States v. Thomas, 453 F.2d 141, 144

(9th Cir.), cert. denied, 405 U.S. 1069,

92 S.Ct. 1516, 31 L.Ed.2d 801 (1971).

See United States v. Echeles, 352 F.2d

892, 896 (7th Cir. 1965).

[12] In determining whether the trial

court abused its discretion, ordinarily we

must view its denial of a motion to sever

as of the time of denial. Only in rare

cases will a trial court's failure to re-

open, sua sponte, the question of sever-

ance conslilule an abuse of discretion.

1051 UNITED STATES v. KAPLAN

Byrd v. Wainwright, 428 F.2d 1017, 1019

n.1 (5th Cir. 1970).

{13} The trial court, in considering a

motion to sever based upon a defend-

ant’s insistence that a codefendant will

provide exculpatory testimony after sev-

erance, must weigh, inter alia, the good

faith of the defendant's intent to have a

codefendant testify, the possible weight

and credibility of the predicted testimo-

ny, the probability that such testimony

will materialize, the economy of a joint

trial, and the possibility that the trial

strategy of a codefendant (a decision to

plead guilty, for example) will prejudice

the defendant seeking severance. Byrd

v. Wainwright, 428 F.2d at 1019-20.

Our review of the trial court’s exercise

of its discretion must recognize the com-

plexity and difficulty of this process of

weighing.

[14] Applying these principles to the

denial by the trial court of the motions

to sever by appellants Kaplan and Gor-

witz presents little difficulty. In neither

instance was the motion diligently pur-

sued; hence any right to severance was

waived. Both moved for a severance be-

fore trial, but such motions were not

renewed when Cassidy indicated he

would not testify and the existence of

the FBI form 302 containing the alleged-

ly exculpatory statements became

known.

{15] The circumstances are different

with respect to Vogt, Stradley, and Dol-

wig. Each pursued diligently the motion

to sever, renewing it during trial at the

time Cassidy refused to testify, and

when the existence of the FBI form be-

came known. Although none of the

three renewed the motion at the close of

all evidence, the trial court had previous-

ly indicated that a renewal would be

useless. Under these circumstances nei-

ther Vogt, Stradley, nor Dolwig waived

his right to seek a severance.

{16} Turning to appellants Vogt and

Stradley initially, it is clear that each

intended in good faith to attempt to in-

duce Cassidy to testify. Also, by means

of summaries by their counsel of the ten-

or of Cassidy's testimony which they ex-

pected, they sufficiently demonstrated

the exculpatory character of Cassidy's

expected testimony. Although an affi-

davit by Cassidy would have strength-

ened the credibility of this proposed tes-

timony, we are not prepared to require

such an affidavit under the circumstanc-

es of this case. Cf. United States v.

Shuford, 454 F.2d 772 (4th Cir. 1971).

[17] However, these summaries did

not indicate a reasonable probability that

Cassidy would give his exculpatory testi-

mony. Cf. United States v. Shuford, su-

pra. By contrast, the affidavits accom-

panying the motion to sever by defend-

ant Enis did indicate a willingness on the

part of Cassidy to testify on behalf of

Enis. No such indication appears in the

statements supporting the severance mo-

tions of Vogt and Stradley. At best

these summaries only demonstrated a

“remote likelihood” that Cassidy's excul-

patory testimony would become availa-

ble. That is not enough. See United

States v. Thomas, supra.

[18] It is also true that Vogt obtain-

ed the benefit of Cassidy's opinion that

Vogt was a “victim” of wrongdoing

rather than a wrongdoer, through the

cross-examination of Agents McKee and

Bumpers. While the agents’ testimony

is not an adequate substitute for Cassi-

dy’s, it does strengthen our resolve not

to characterize the trial court's refusal to

sever as an abuse of discretion.

What has heen said concerning appel-

lants Vogt and Stradley is equally appli-

cable to appellant Dolwig. The summa-

UNITED STATES v. KAPLAN 1052

ry of the anticipated Cassidy testimony

prepared by Dolwig’s counsel reflected

no reasonable probability that Cassidy

would testify had Dolwig's trial been

severed. Indeed, it would be unusual to

expect such testimony. Moreover, the

contents of this summary were read into

evidence, thereby somewhat lessening

any prejudicial effect of Cassidy's refus-

al to testify in the trial.

[19] Dolwig also argues, relying on

United States v. Donaway, 447 F.2d 940,

943 (9th Cir. 1971), that failure to sever

him was an abuse of discretion because

certain evidence put before the jury,

while admissible with respect to other

defendants, was not admissible against

Dolwig. We believe the facts in Dona-

way far more clearly indicate an abuse

of discretion than those present in this

case. The fundamental issue is whether

the jury can be expected to keep sepa-

rate the evidence as it pertains to each

jointly tried defendant. Fernandez v.

United States, 329 F.2d 899, 906 (9th Cir.

1964). As Fernandez observes, the best

indication of the jury's ability to com-

partmentalize is its failure to convict all

defendants. 329 F.2d at 906. The fail-

ure to convict Enis provides such an indi-

cation here. Moreover, our view of the

record convinces us that the jury was

able to keep separate the evidence as it

pertained to Doiwig.

{20} Finally, Dolwig contends that he

was unduly prejudiced by references

during the trial to the Mafia and by

Cassidy's entrapment defense. Both in-

voke the Fernandez inquiry, and both

must he disposed of in the same manner

as was Dolwig’s complaint regarding evi-

dence inadmissible as to him. We be-

|. Dolwig was convicted on two counts (Counts

21, 22) of violating 18 USC. § 1341. In part

11(B) of thes court's opimion, his conviction on

lieve the jury could, and did, compart-

mentalize the evidence properly.

Obviously our refusal to hold that the

trial court abused its discretion in re-

fusing to sever Vogt, Stradley, and Dol-

wig from the trial of Cassidy is influ-

enced by the truism that joint trials are

usually less burdensome to the prosecu-

tion than separate trials. This economy

does not entitle us to treat lightly, how-

ever, appeals based on refusals to order

separate trials. Joint trials do alter the

emotional and factual setting within

which an individual's guilt or innocence

is to be determined. Our task on review

is to review carefully the record to de-

termine whether the trial court abused

its discretion in ordering a joint trial.

We have made that review and hold that

no such abuse exists in this case. United

States v. Wood, 550 F.2d 435 (9th Cir.

1976).

[V. THE INSTRUCTIONS

l. Dolwig

Dolwig contends that the trial court

committed reversible error when it gave

the government’s proposed instructions

relating to mail fraud (18 U.S.C. § 1341),

transportation fraud (18 U.S.C. § 2314),

and conspiracy to commit such offenses

(18 U.S.C. § 371), on the ground that

there was no evidence presented to sup-

port those charges. But we have indeed

found evidence sufficient to support Dol-

wig’s conviction on all substantive

counts, with the exception of Count 22

charging mail fraud.' Furthermore, we

have rejected his argument that the

government failed to establish the requi-

site intent to support the conspiracy con-

Count 22 1s reversed. Dolwig was also con

victed of four counts of transportation fraud

and one count of conspiracy

viction. Thus, the instructions, except

parts relating to Count 22, are clearly

supported by. the evidence.

Dolwig also asserts error in the refusal

to give three requested instructions per-

taining to his theory of defense. He re-

lies on Baker v. United States, 310 F.2d

924, 930 (9th Cir. 1962), cert. denied, 372

U.S. 954, 83 S.Ct. 952, 9 L.Ed.2d 978

(1963). The three requested

instructions? relate to Dolwig’s purport-

ed role as an “escrow holder”, innocent

of all wrongdoing and himself a victim

of the Eurovest scheme.

{21} While it is clear that the trial

judge must instruct the jury as to the

defendant’s theory of the case, the in-

structions given need not be in the pre-

cise language requested by the defend-

ant. Charron v. United States, 412 F.2d

657, 660 (9th Cir. 1969); Rivers v. United

States, 368 F.2d 362, 364 (9th Cir. 1966).

The refusal to give a requested instruc-

tion is not error “if the charge as a

whole adequately covers the theory of

the defense.” United States v. Blane,

375 F.2d 249, 252 (6th Cir. 1967), cert.

denied, 389 U.S. 835, 88 S.Ct. 41, 19

L.Ed.2d 96 (1967), reh'g denied, 389 U.S.

998, 88 S.Ct. 459, 19 L.Ed.2d 503 (1967).

2. Defendant Dolwig’s Proposed Jury Instruc-

tion No. 1:

“In each instance in which the Defendant,

RICHARD DOLWIG is charged, he purported

to act as an escrow agent. If you find from all

of the evidence that he believed that this was

his role, that he did not mislead any third

persons with reference to his role and that he

had no knowledge that the role which he ac-

cepted was part of any scheme of any others

to commit any offense charged. or if you have

a reasonable doubt as to the above, then you

must find Defendamt, RICHARD DOLWIG not

guilty as to all counts.”

Defendant Dolwig's Proposed Jury Instruc-

uuon No. 2.

“The mere fact stancing alone that a partic-

ular defendant may have held a sum of money

UNITED STATES v. KAPLAN

Thus, the adequacy of the jury instruc-

tions is “not be determined by the giv-

ing, or failure to give, any one or more

instructions,” but by examining the in-

structions as a whole. Beck v. United

States, 305 F.2d 595, 599 (10th Cir. 1962);

United States v. Alvarez, 469 F.2d 1065,

1067 (9th Cir. 1972); United States v.

Moore, 522 F.2d 1068, 1079 (9th Cir.

1975), cert. denied, 423 U.S. 1049, 96

S.Ct. 775, 46 L.Ed.2d 637.

Viewed in their entirety, the instruc-

tions thoroughly elaborated on the terms

“knowingly,” “willfully,” “specific in-

tent,” and “intent to defraud.” While

Dolwig’s requested instructions were re-

fused, the given instructions provided

the jury with adequate guidance to con-

sider evidence relating to the defense

that he was an escrow holder, innocent

of any wrongdoing.

Finally, Dolwig challenges Instruction

32, regarding knowing participation in a

scheme to defraud, as being unfairly tai-

lored to the facts of the case, and the

refusal of the trial court to give an in-

struction on the requirement of actual

knowledge as an essential element of

each offense. The instructions, when

viewed as a whole, adequately charged

for a period of time is not sufficient upon

which you may base a verdict of guilty. In

order to return a guilty verdict, based on such

a fact, you must also find beyond a reasonable

doubt that such person had an intent to de-

fraud.”

Defendant Dolwig's Proposed Jury Instruc-

tion No. 3.

“If you find that Defendant, RICHARD DOL-

WIG, believed that persons dealing in matters

in which he was to be escrow agent would

either receive letters of credit or have their

money refunded, or if you entertain a reasona-

ble doubt of such belief on his part, then you

must find him innocent as to all counts in

which he is charged.”

UNITED STATES v. KAPLAN

the jury on knowledge. Instruction 32

properly addressed the law applicable to

the prosecution counts. Therefore, Dol-

wig’s latter contentions must be rejected.

2. Cassidy

[22] Appellant Cassidy contends that

his conviction? must be reversed because

of the trial court’s refusal to give two

requested jury instructions. Requested

Instruction No. 3‘ relates to his claim

that he lacked the requisite criminal in-

tent because he was acting as a govern-

ment informant. Requested Instruction

No. 2° deals with the related claim that

he acted in conformity with the agree-

ment of nonprosecution he entered into

with the Government. Cassidy further

argues that the standard entrapment in-

struction® given by the trial court did

not adequately present his defense of

lack of mens rea.

Cassidy's contentions concerning the

insufficiency of the instructions, like

Doiwig’s, must be rejected. During tri-

al, Cassidy attempted to show that he

“honestly and reasonably thought the ac-

tions and representations he was making

to others were in the course of his activi-

ties as an informant.” Through the tes-

timony of FBI agents Bumpers and

McKee, he tried to adduce evidence of

entrapment from government encourage-

3. Cassidy was convicted on one count (Count

16) of wire fraud, two counts (Counts 21, 22)

of mail fraud, one count (Count 27) of racket-

eering, and one count (Count 28) of conspir-

acy. Count 22 was reversed as to all defend-

ants.

4. “If you find the evidence in this case shows

that defendant CASSIDY honestly and reason-

ably thought the actions and representations

he was making to others were in the course of

his activities as an informant or government

agent you should acquit him on all counts.”

5S. “If you find the evidence in this case is that.

1) Defendant CASSIDY entered into an agree-

ment with the government through its agents

1054

ment of his activities and his own adher-

ence to, and reliance upon, the agree-

ment of nonprosecution with government

prosecutors in Los Angeles. The entrap-

ment instruction given by the court,

when read in pari materia with the in-

structions on specific intent, willfulness,

and knowledge, adequately presented the

defense of lack of criminal intent. See

United States v. Elksnis, 528 F.2d 236,

238 (9th Cir. 1975). The trial judge did

not commit error in refusing to give the

particular instructions Cassidy sought.

See Rivers v. United States, supra.

{23] Cassidy additionally challenges

the complete “package” of instructions

as being insufficiently tailored to the

unique facts underlying his informant

defense to enable the jury to assess his

culpability separately from that of his

codefendants. Although one. identical

specific-intent instruction was given as

to all defendants, the trial court did in-

struct the jury that “each defendant is

entitled to have his case determined

from evidence as to his own acts and

statements and conduct, * * * Jeay-

ing out of consideration entirely any evi-

dence admitted solely against some other

defendant or defendants.” Cassidy was

not prejudiced by the absence of a sepa-

rate specific-intent instruction applicable

to him alone.

to cooperate with it by providing information

in exchange for a promise of non-prosecution

and 2) that defendant CASSIDY has substan-

ually complied with his part of the agreement.

then vou must acquit DOUGLAS CASSIDY on

all counts.

“Substantially complied with means that De-

fendant CASSIDY has provided the basic in-

formation and performed in a manner asked

and that there is no omission of the essential

requirements expected of him and that the in-

formation that was provided was satisfactory

for the case under investigation.”

6. | Devitt and Blackmar, Federal Jury Practice

and Instructions § 13.13 (2d ed 1970)

1055 UNITED STATES v. KAPLAN

V. PROSECUTORIAL MISCONDUCT

[24] Cassidy contends that he should

have been granted a mistrial because the

government brought up, during the

questioning of a federal agent, the point

that Cassidy had first come to the atten-

tion of the FBI when that agency was

asked to watch Cassidy board a plane for

England so his attire could be described

to Scotland Yard. This more or less

harmless remark was shortly supple-

mented by the hearsay intelligence that

Cassidy was of interest because of his

possible role in the international trans-

portation of stolen securities. While the

prosecutor’s inept control of the ques-

tioning at that point raises some ques-

tions about prosecutorial good faith,

there was no basis for mistrial. At issue

was whether Cassidy was an abused,

faithful, confidential informer or a faith-

less double agent. Resolution of that is-

sue requires that the story’s beginning

be told. This is what the prosecutor

drew from the agent and what Cassidy's

counsel previously had carefully avoided.

Defense counsel correctly extracted only

those portions of the story that tended

to support his theory of the case. The

prosecutor followed the same course

from the point of view of the govern-

ment. We detect no error.

VI. CASSIDY’S CHALLENGE TO

THE INDICTMENT

[25-28] Appellant Cassidy argues for

the first time on appeal that the prose-

cutor’s failure to present exculpatory ev-

idence of his status as a government in-

former to the grand jury requires a dis-

missal of the indictment against him.’

7. Motions to dismiss an indictment must be

made before trial or they are waived. Fed.R.

Crim.P 12(bx2), (f); see. e gv. Mitchell v.

United States, 434 F.2d 230 (9h Cir. 1970),

cert. demed, 402 U.S. 946, 91 S.Ct. 1636, 29

L.Ed.2d 115 (1971). The tral court may, how-

ever, defer determination of the motion, Fed. R.

Crim P. 12(e). or grant relief from the waiver

A showing of fundamental error is nec-

essary before we will consider issues not

raised below. United States v. Murray,

492 F.2d 178 (9th Cir. 1973), cert. denied

sub nom., Roberts v. United States, 419

U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87

(1974). See Fed.R.Crim.P. 52(b).

No such error has been shown to exist.

Appellant has not demonstrated that he

was prejudiced by the challenged prose-

cutorial conduct. He has failed to show

that his role as an informer actually ex-

culpates him. As a consequence, his re-

liance on cases involving the use of per-

jured testimony relevant to a material

element in an indictment is misplaced.

See United States v. Basurto, 497 F.2d

781 (9th Cir. 1974). We can no more

assume exculpation than we can materi-

ality. Moreover, we recognize the wide

discretion which the prosecution may ey-

ercise in grand jury proceedings. United

States v. Y. Hata & Co., 535 F.2d 508

(9th Cir. 1976).

Except for the convictions upon Count

22, which are in each instance reversed,

and Stradley’s conviction upon Count 27,

all other convictions are affirmed.

Stradley was sentenced on Count 21 to

two years, on Count 27 to five years, and

on Count 28 to four years, all sentences

io run concurrently. Stradley’s convic-

tion upon Count 27 is set aside upon the

government's agreement, on a petition

for rehearing, that it depended upon

Count 22 and falls with the conviction

upon Count 22.

Affirmed in part; reversed in part:

remanded for entry of a_ modified

sentence in No. 75-3428, United States v.

Walter Stradley.

for good cause. Fed.R.Crim.P. 12(f). Cassidy

failed to inciude this ground in his pretrial

motion to disnmuss the indictment: this failure

aione is excusable because he did not receive a

transcript of the relevant grand jury proceed-

ings until mudway through the trial. Neverthe-

less, he has no similar excuse for his failure to

renew his motion during trial.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

APPENDIX "“B"

APPENDIX B

Rule 6. The Grand Jury.

(d) Wuo May Be Present. Attorneys for the govern-|

ment, the witness under examination, interpreters when

needed and, for the purpose of takimg the evidence, a

stenographer or operator of a recording device may be

present while the grand jury is in session, but no person

other than the jurors may be present while the grand jury

is deliberating or voting.

Rule 54. Application and Exception.

following terms have the designated meanings.

‘*Attorney for the government’’ means the Attorney

General, an authorized assistant of the Attorney General,

a United States Attorney, an authorized assistant of s

United States Attorney and when upficable to cases

arising under the laws of Guam means the Attorney Gen- |

eral of Guam or such other person or persons as may be

authorized by the laws of Guam to act therein.

§ 515. Authority for legal proceedings; commission, oath,

and salary for special attorneys

(a) The Attorney General or any other officer of the Department

of Justice, or any attorney specially appointed by the Attorney Gen-

eral under law, may, when specifically directed by the Attorney

General, conduct any kind of legal proceeding, civil or criminal, in-

cluding grand jury proceedings and proceedings before committing

magistrates, which United States attorneys are authorized by law to

conduct, whether or not he is a resident of the district in which the

proceeding is brought.

(b) Each attorney specially retained under authority of the De-

partment of Justice shall be commissioned as special assistant to the

Attorney General or special attorney, and shall take the oath required

by law. Foreign counsel employed in special cases are not required

to take the oath. The Attorney General shall fix the annual salary

of a special assistant or specia! attorney at not more than $12,000.

Added Pub.L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 613.

APPENDIX "C"

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crcurring in tne Gort crs “strict of California anc other te tryed

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(NOTE: Please note that this is

a@ fair reproduction of what was

received by Appellant Dolwig.

Appellant has never been shown

a clear copy.)

| BEST COPY AVAILABLE

APPENDIX "Dp"

OATH. OFFICE (Without Compensatio.. ORIGINAL APPENDIX D

FILED

L Rstert 3. Greshetene , do eal, BE. chat 1

will support and defend the Constitution of the United Spates, againstisdl Gneniies,

foreign and domestic; that I will bear true faith and allegiance to 7S Gen that

I take this obligation freely, without any mental reservation or purpose of evasion;

and that I will well and faithfully discharge the duties of the office of Special

Attorney on which I am about to enter in the Northern District of Californta,

pursuant to the authorization of Henry E. Petersen, Assistant Attorney Ceneral ,

Criminal Division, Cepartment of Justice,

dated June 11, 1974

and filed herewith: So help me God

(Sign Here) aan : ‘a a

Date of Birth _Bicn. rsh 19 SY

Date of Entry Upon Duty Mencd. iS \AT4

Subscribed and sworn to before me this__/ 7 _

day of £ ccm ,AD.19l7,

UP ,

wt Ky (Signature of Officer).

(Seal) DEPYTY Soa. *

— Post 2 +: RCT ov CaLsORHA

(Title)

‘

7 i

Note 1—If certificate is executed by a Notary Public, date of expiration of commission

should be shown.

Note 2—An executed copy of this form should be returned to the appropriate division

Ot t«

DOs 05-1971 suse

——

NDIX "

—— APPENDIX E

a aa gi f Sustics

February 4, 1975

Mr. Edmund 9. Lyons

Criminal Division

Department of Justice

Washington, D. C.

Dear Mr. Lyons:

The Department is informed that there have occurred and are

occurring in the Northern District of Califernia and other judicial

districts of the United States violations of federal crimirz! statutes

by parsons whcse identities are unknown to the Department at this

tice.

As an attorney at law you are specially retained end sppointed

2 Speci2! Atcarney under the authority of the Department of Justice

to S asobet iM <2 trial 97 the aforesaid case; in the aforesaid dictrict

anc other judicial districts of the United States in which the Covernment

is interested. In that connection you are soecially authorized and

directed to Abe inforrations 2nd to conduct in the aforesaid district

anc other jutzicial districts of the United States any kind of legal

proc2edins civil ce criminal, including grand jury proce2cings and

oroceedirgs pefore Com tting magistrates, whicn United States Attorneys

ere authori z24 to cordsuct.

Your 2pp0intrent is extended to include, in addition to the

aforesaid c252s, the prosecution of any other such special cases arising

in cn® afores:i¢ cistricz and other judicial districts of the United States.

You -7e@ to sarve without compensation other than the compensa-

tion you art ctw receiving ur.cer existirg anpointrent.

tps required oath of office and forward a

Crininal Division.

“*s

P22 x

duslicate trereof te

Sincerely,

As fone

Acting Assistant Attorney General

‘BEST COPY AVAILABLE

OATH * OFFICE (Without Compensatic APPENDIX -F

L,_ristz¢e D. Lrons , do solemnly swear that I

will support and defend the Constitution of the United States against ali enemies,

foreign and domestic; that’ I will bear true faith and allegiance to the same; that

I take this obligation freely, without any mental reservation or purpose of evasion;

and that I will well and faithfully discharge the duties of the office of Special

pursuant to the authorization of __Act Assi G "

dated Feamiaz +, 1975

and filed herewith: So help me God.

} Yi

(Sign ae Oe L my 4 Fe A

Date of Birth__7/20/47 a ORIGINAL

2higlhi— | ,

SS" _

Date of Entry Upon Duty

Su.sscribed and sworn to before me on _

es, - CuSRA, U.S. DIST. Cour

dey ome te zo, AD. 19f4_, SAN ERaiiciseg

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aoa, DEPUTY CLERRIBNat HIRO ices —

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Note 1—If certiheate is executed by a Notary Public, date of expiration of commission

shouid be shown.

Note 2—An executed copy of this form should be returned to the appropriate division.

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