Petition — McFayden-Snider v. United States

#~ Supreme Court, U. wih

{ FILED |

FEB 9 1978

MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the United States

Octoser Term, 1977

No. @7-1117

HEATHER McFADYEN-SNIDER,

ee

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARTIN 8S. GERBER

GERBER & GERBER

39 South LaSalle Street

Chicago, Illinois 60603

HAL GERBER

GERBER, BERNSTEIN, GERBER

& WINESTONE

3121, 100 North Main Building

Memphis, Tennessee 38103

Attorneys for Petitioner

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINIONS BELOW siscniina 1

IE - Nalinnistaitincsdinniciiaiiilattanamataniilasinuiadieanaiebiniienis 2

RE 2

CONSTITUTIONAL PROVISION INVOLVED .......... 3

I vinsinicniisissbsinhaiecsishenpuiniieniiinnasaahiiiesiiainiisiinabeanitien 3

REASONS FOR GRANTING THE WRIT ............ 7

ARGUMENT:

I.

The Misconduct Of The Prosecutor Was Of Such

Proportion As To Fall Within The Purview Of

That Condemned In Jorn, Dinitz And Lee .............. 8

II.

The Misconduct Of The Trial Judge Was Of

Such Proportion As To Fall Within The Purview

Of That Condemned In Jorn, Dinitz And Lee ........ 15

TUTTE, ‘sinissssterieniaieaieiicintitiatsinalicabicasadiilnidbiiiaiaitaiatiaais 22

APPENDICES:

A—Opinion Below Reversing Conviction .................... la

B—Order Sustaining Tria! Court’s Order Denying

Motion To Dismiss On Double Jeopardy Grounds 14a

C—Order Denying Petition For Rehearing ................ 17a

AUTHORITIES CITED

Cases

Abney v. United States, 431 U.S. 651 (1977) —.0000000... 7

Ball v. United States, 163 U.S. 662 (1896) 0000. 9, 10

Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977) .......... 12

Downum v. United States, 372 U.S. 734 (1963) -........... 10, 14

Gori v. United States, 367 U.S. 369 (1961) 00002. 10, 14

Green v. United States, 355 U.S. 184 (1957) 00. 9, 10

Lee v. United States, ...... U.S. ...... (1977) ; 538 L.Ed.2d

80 (Adv. Sheet, July 25, 1977) ...............0............ 2, 8, 10, 11

Querica v. United States, 289 U.S. 466 (1933) 20002000... 15

Starr v. United States, 153 U.S. 616 (1894) 0000. 15

United States v. Ball, 428 F.2d 26 (6th Cir. 1969) .......... 15

United States v. Dinitz, 424 U.S. 600 (1976) 0020...

TETAS IT IO a NPS SLES ASR I 2, 8, 10, 11, 12, 14, 21

United States v. DiSisto, 289 F.2d 833 (2nd Cir. 1961) ..

PREIS Sek RN ee Ss KU eA SO ee 16, 18, 21

United States v. Jorn, 400 U.S. 470 (1971) -....00000200...

EE aeRO Nek MOR Ie FE AAT ANN 2, 7, 8, 9, 10, 11, 12, 21

United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976)

PREAH NOS eS Ae WTR tL EN ee et ae eT 11, 12, 14

United States v. Martin, 561 F.2d 135 (8th Cir. 1977) .. 11, 12

United States v. Tateo, 377 U.S. 463 (1964) —.0000. 9, 11

United States v. Tobin, 426 F.2d 1279 (7th Cir. 1970) .... 16

United States v. Wyatt, 442 F.2d 858 (D.C. Cir. 1968) .. 16

Wade v. Hunter, 336 U.S. 692 (1949) .....0 10

Constitutional Provision

U.S. Constitution, Amend. V ........ 1, 2, 3, 4, 7, 9, 10, 11, 12, 15

Statutes

Be ry He iy Bee a: NEED isctctisreininsnennccsencensensesanesmmmecnne 3

a Sei Wb INET siacicressesiilebcieticaninhanininasiigbinnanidinmammiiicneniandnsies 2

In THE

Supreme Court of the Anited States

Ocroser TERM, 1977

No.

HEATHER McFADYEN-SNIDER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit affirming denial of petitioner’s motion

to dismiss which was based on double jeopardy grounds.

OPINIONS BELOW

The opinion of the Court of Appeals reversing peti-

tioner’s conviction, its order sustaining the trial court’s

denial of her motion to dismiss on double jeopardy grounds,

and its order denying her motion for rehearing have not

—-2—

yet been reported. The opinion reversing petitioner’s con-

viction and remanding for a new trial is printed as Ap-

pendix A hereto, infra, p. la. The order sustaining her

motion to disiniss on double jeopardy grounds is printed

as Appendix B hereto, infra, p. 14a, and its order over-

ruling her motion for rehearing is printed as Appendix C

hereto, infra, p. 17a.

JURISDICTION

The opinion of the Court of Appeals reversing con-

viction and remanding for a new trial, (Appendix A,

infra, p. la) was decided and filed April 15, 1977. The or-

der of the Court of Appeals sustaining the action of the

trial court in denying petitioner’s motion to dismiss on

double jeopardy grounds, (Appendix B, infra, p. 14a) was

entered on December 9, 1977. The order denying petition

for rehearing, (Appendix C, infra, p. 17a) was entered

on January 13, 1978. The jurisdiction of this Court is in-

voked under 28 U.S.C., § 1254.

QUESTION PRESENTED

This case presents one question:

Was the prosecutorial and/or judicial misconduct in this

case of sufficient proportion to bar reprosecution under the

standards enunciated by this Court in United States v.

Jorn, United States v. Dinitz and Lee v. United States and,

if so, is this petitioner precluded from relying upon the

Double Jeopardy Clause to bar such reprosecution, where

her previous conviction was reversed on appeal, rather

than terminated by the trial court on a defense motion for

a mistrial?

a

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT V. — CAPITAL CRIMES: DOUBLE JEOP-

ARDY ; SELF-INCRIMINATION; DUE PROCESS; JUST COM-

PENSATION FOR PROPERTY

No person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

STATEMENT

On April 12, 1976, petitioner was indicted in five counts

in the Middle District of Tennessee, charging a scheme to

defraud the Hamilton Bank of Nashville by means of mail

and wire fraud and by making false statements in vio-

lation of 18 U.S.C., §§ 1014, 1341 and 1343.

After a jury trial, petitioner was convicted on four counts

of the indictment, but the jury failed to agree on count 2,

which was later dismissed on motion of the government.'

1 The indictment charges, in count one, a scheme to defraud; in

count two, making false statements to influence the action of a

bank: in count three, fraud by wire; in count four, mail fraud;

and in count five, making false statements and furnishing a false

financial statement to influence the action of a bank.

=

On appeal, the United States Court of Appeals for the

Sixth Cireuit, on April 15, 1977, reversed the conviction

because of prosecutorial misconduct and remanded the

case for a new trial. (Appendix A, infra, p. 1a).

Upon remand, the case was set for trial in the district

court. Petitioner then moved the court to dismiss on double

jeopardy grounds. This motion was denied.

Appeal was taken and on the 9th dav of December, 1977,

a decision was rendered affirming the district court. (Ap-

pendix B, infra, p. 14a). A petition to rehear was filed, but

on the 13th day of January, 1978, was denied. (Appendix

C, infra, p. 17a).

The relevant evidence may be summarized as follows:

In the early part of 1974, petitioner approached officials

of the Hamilton Bank of Nashville, in Nashville, Tennessee,

and a subsidiary bank in Chattanooga, Tennessee, relating

to her need for financing the purchase and sale of railroad

cross ties and two million metric tons of rice.

In May, 1974, petitioner opened three bank accounts in

the Hamilton Bank and provided the bank with a financial

statement.

On May 7, 1974, the bank sent John Andreson, one of

its officials, with petitioner on a trip to England for the

purpose of investigating her buyers of commodities for

which the bank would issue letters of credit. While in

England cheeks, which petitioner had deposited to open

her accounts at the bank, were returned for insufficient

funds. Thereafter, the bank agreed to extend credit to

petitioner in the sum of $25,000.00, part of which was used

to cover an overdraft written to pay for the air fare to

os

England for petitioner, her assistant, and Andreson. Peti-

tioner received about $20,000.00 of the authorized credit.

Upon her return from England, petitioner again visited

the bank, in July, 1974, and attempted to obtain further

credit. The bank declined and further business dealings

were terminated.

Petitioner later paid $6,300.00 on the note executed to

secure her indebtedness to the bank. Because she did not

repay the balance, she was charged with fraud.

At her trial, petitioner testified in her own defense and

admitted her dealings with the bank, but denied any in-

tent to defra* 1. During cross-examination of petitioner,

the Assistant United States Attorney advised the court,

out of hearing of the jury, that he wished to prove that

petitioner had been a prostitute. The trial court pointed

out that petitioner had not introduced evidence of her

good character and warned the prosecutor against ‘‘over-

kill’.

Ignoring the trial court’s advice, the prosecutor, on re-

buttal,2 called two witnesses who testified that petitioner

had told them that she had been kept by several men and

had sold herself to prominent, wealthy men.

The Court of Appeals found that this evidence was in-

competent and rebutted nothing. Furthermore, it found

this evidence was unrelated to the charges against peti-

tioner, added nothing to the prosecutor’s case, catered

only to the passions of the jury and prejudiced her chance

for a fair trial. (Appendix A, infra, p. 9a).

2 This was done in the presence of the jury.

—

The prosecutor also offered proof of issuance of bad

checks which the Court of Appeals found was unrelated

to the charges. It held that this testimony was offered

solely for the purpose of prejudicing petitioner and de-

priving her of a fair trial. (Appendix A, infra, p. 11a).

The trial judge repeatedly interrupted the proceedings

to examine and cross-examine witnesses and to inject per-

sonal prejudice. Among other things, the Court utilized

these interruptions to ridicule the petitioner (Tr. 140; 161-

163), to argue with petitioner over her choice of words

(Tr. 307), to cross-examine petitioner (Tr. 317-20; 344;

348-349 ; 393-394; 396-403; 424-425; 433-435; 453-454; 461-

463; 483; 490-491), to comment about the absence of docu-

ments (Tr. 393; 399-402; 399; 402), and about her mar-

riages and relationships with men, all of which was done

in a sareastic and disparaging manner (Tr. 424-425; 441-

443 ; 498-501; 508-509; 511; 516; 530-31; 540; 541),3 and to

state, out of the presence of the jury, the defendant ‘‘ doesn’t

have any eredibility’’ (Tr. 532).

On appeal, the United States Court of Appeals for the

Sixth Cireuit reversed and remanded the case for a new

trial beeause of misconduct of the prosecutor (Appendix

A, infra, p. 2a) but did not reach the issue of judicial

misconduct. (Appendix A, infra, p. 13a). Instead it in-

dicated that it was unlikely that the same judge would want

to try the case again. (Appendix A, infra, p. 13a).

In May, 1977, the United States Attorney indicated that

he would seek to retry petitioner on the same charges and

the case was set for trial before a different judge. On

June 10, 1977, petitioner filed a motion to dismiss the

3 All in a manner to prejudice petitioner in the eyes of the jury

and to show the Court’s confidence in the government’s case and

his disdain for the petitioner’s case.

= =

indictment and bar further prosecution on the grounds of

double jeopardy. The trial court denied this motion on

June 24, 1977.

On the authority of Abney v. United States, 431 U.S.

651 (1977), petitioner appealed the district court’s ruling

to the United States Court of Appeals for the Sixth Cir-

cuit. On December 9, 1977, the Court of Appeals rendered

its order, affirming the district court. (Appendix B, infra,

p. 14a).

On December 19, 1977, petitioner filed her petition for

rehearing, which was denied by order dated January 13,

1978. (Appendix C, infra, p. 17a).

REASONS FOR GRANTING THE WRIT

—_—_

The question presented in this case has never been de-

cided by this Court. It is significant in the administration

of criminal law. The question relates to the right of a

defendant to rely on the Double Jeopardy Clause after his

conviction has been reversed on appeal because of prose-

cutorial misconduct and/or judicial overreaching or gross

negligence, even though he made no motion for mistrial

on these grounds. This Court, the United States Courts

of Appeals for the Fifth and Eighth Circuits, and the Su-

preme Court of Pennsylvania, have held that reprosecu-

tion is barred, for these reasons, by the Double Jeopardy

Clause, where mistrials have been granted in the trial court,

either on motion by defendant or by prosecutor or sua

sponie. We have found no case where the trial judge

granted a mistrial because of his own misconduct although

this Court has held retrial is barred by the Double Jeop-

ardy Clause in such a case. See United States v. Jorn, 400

U.S. 470 (1971).

ARGUMENT

THE MISCONDUCT OF THE PROSECUTOR WAS OF

SUCH PROPORTION AS TO FALL WITHIN THE PURVIEW

OF THAT CONDEMNED IN JORN, DINITZ AND LEE.

In its opinion dated April 15, 1977, the Court of Appeals

held:

‘We reverse defendant’s conviction beeause of mis-

conduct of the prosecutor.’’ (Appendix A, infra, p.

9

%a).

Tn support of this holding, the court clearly and precisely

found, with respect to testimony regarding prostitution:

‘*Despite the warning given by the district judge to

the prosecutor at the bench hearing, the prosecutor

persisted in ignoring these warnings and deliberately

offered the incompetent evidence in rebuttal. This evi-

dence rebutted nothing; plaintiff (sic) did not testify

that she had been a good moral person.’’ (Appendix

A, infra, p. 8a).

After finding that the trial court abused its discretion

in permitting rebuttal testimony on prostitution, (Appen-

dix A, infra, p. 9a) the court further found that allowing

testimony of petitioner’s [prostitution] :

‘*. . . not only resulted in prosecutorial overkill, but

also permitted the jury to consider evidence of Heath-

er’s background which was wholly unrelated to the

charges against her of wire and mail fraud and false

statements. This evidence added nothing to the pros-

ecutor’s case and served only to eater to the passions

of the jury. It tended to put her on trial for conduct

not in the indictment and prejudiced her chance for

a fair trial.’’ (Appendix A, infra, p. 9a).

-

And with respect to evidence of bad checks, the court

found:

‘‘The real reason the prosecutor offered the testimony

was to get before the jury incompetent and inadmis-

sible evidence which was highly prejudicial and which

deprived the defendant of a fair trial.’’ (Appendix A,

infra, p. 1la). [emphasis supplied ]

The Court of Appeals, however, did not reach the ques-

tion of judicial misconduct, significantly stating that it was

unlikely that the district judge would want to try the case

again. (Appendix A, infra, p. 13a).

The only authorities cited by the Court of Appeals to

support its conclusion that double jeopardy does not ap-

ply are those cited in its order denying the petition for

rehearing, Ball v. United States, 163 U.S. 662 (1896), and

Green v. United States, 355 U.S. 184 (1957).

These cases, in effect, hold that reprosecution is not

barred on double jeopardy grounds where a conviction has

been set aside on appeal. See, 355 U.S. at p. 189. We do

not quarrel with this general principle, but we assert that

a different rule applies where there has been ‘‘. . . any

intimation in a case that prosecutorial or judicial impro-

priety justifying a mistrial resulted from a fear that the

jury was likely to acquit the accused . . .’’. United States

v. Tateo, 377 U.S. 463, 468 (1964).

Although this Court has declined to formulate rules

which categorize circumstances which permit or preclude

retrial, in United States v. Jorn, 400 U.S. 470, 480 (1971),

it has held that misconduct of the trial judge in abruptly

discharging the jury of its own motion, operates to pre-

vent retrial on double jeopardy grounds, because the trial

court had abused its discretion. United States v. Jorn,

400 U.S. at 487.

_

The Court, in Jorn, while reaffirming the principles

set forth in Ball and Green, nevertheless noted that there

is an essential difference where there has been prosecu-

torial or judicial overreaching, in which case the double

jeopardy clause prevents reprosecution. 400 U.S. at 484-

485.

Later, this Court reaffirmed this principle in United

States v. Dinitz, 424 U.S. 600 (1976). Although the Court

there held that where a mistrial is granted at defendant’s

request because of the conduct of the trial judge, where

that conduct was not motivated by bad faith or to harass

or prejudice the defendant, reprosecution was not barred.

However, this Court held:

‘The double jeopardy clause does protect a defendant

against governmental actions intended to provoke mis-

trial requests and thereby to subject defendants to the

substantial burdens imposed by multiple prosecutions.

It bars retrials where ‘bad faith conduct by judge or

prosecutor’ United States v. Jorn, supra, at p. 485,

threatens the ‘[H]arrassment of an accused by suc-

cessive prosecutions or declaration of a mistrial so

as to afford the prosecution a more favorable oppor-

tunity to convict’ the defendant. Downum v. Un‘ted

States, 372 U.S. at 736. See, Gort v. United Siates,

367 U.S. 369; United States v. Jorn, supra, at 489

(Stewart, Jr. dissenting) ; ef. Wade v. Hunter, 336 U.S.

692.’’ United States v. Dinitz, 424 U.S. 611.

This Court, in Dinitz, excused the conduct of the trial

judge because it was not done in bad faith in order to

goad the respondent into requesting a mistrial or to prej-

udice his rights. 424 U.S. at 611.

More recently this court has reaffirmed Jorn and Dinitz.

In Lee v. United States, ...... US. ...... (1977); 53 L.Ed.2d

80 (Adv. Sheet, July 25, 1977), the court held to the view

—\)

that if the underlying error was intended to provoke the

motion for mistrial, motivated by bad faith or undertaken

to harass or prejudice, a retrial would be barred. 53 I..

Ed.2d at p. 89.

The thing that seems to emerge from these four Supreme

Court cases, Tateo, Jorn, Dinitz, and Lee, is that the

crucial difference that bars reprosecution on double jeop-

ardy grounds is where mistrial was declared because of

prosecutorial or judicial overreaching, coupled with a de-

sign to provoke a mistrial in order to strengthen the gov-

ernment’s position at a later trial. Evidence of such a de-

sign is provided where the prosecutorial overreaching was

due to gross negligence or intentional misconduct. United

States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976).

Analogizing Jorn, Dinitz and other cases, Id, p. 1256, the

Court of Appeals for the Fifth Circuit concluded:

‘‘Thus, a stringent analysis of the prosecutor’s con-

duct, considering the totality of the circumstances vrior

to the mistrial, to determine if there was ‘prosecutorial

overreaching’ is our inquiry. If ‘prosecutorial over-

reaching’ is found, a second trial is barred by the Dou-

ble Jeopardy Clause notwithstanding the fact that the

defendants requested the mistrial.

To find ‘prosecutorial overreaching,’ the Govern-

ment must have, through ‘gross negligence or inten-

tional misconduct,’ caused aggravated circumstances

to develop which ‘seriously prejudice[d] a defendant’

causing him to ‘reasonably conclude that a continua-

tion of the tainted proceeding would result in a con-

vietion’.’’ 530 F.2d 1256.

In a ease like petitioner’s, the Eighth Circuit reversed

a conviction on Double Jeopardy grounds because of mis-

conduct of the prosecutor. U.S. v. Martin, 561 F.2d 135

==

(8th Cir. 1977). Even though the prosecutor was not al-

leged to have provoked a mistrial, the court held it was

enough that his actions went beyond mere negligence. The

court characterized his conduct as improper and preju-

dicial and charged him with gross negligence.

The court relied upon Jorn, Dinitz and Kessler in reach-

ing its conclusion, The court held:

‘cm *%

Although mere negligence by the prosecutor

is not the type of overreaching contemplated by Dinitz,

if the prosecutorial error is motivated by bad faith

or undertaken to harass or prejudice the defendant,

then prosecutorial overreaching will be found * * *,’’

061 F.2d at p. 139.

The only difference between Martin’s case and that of

petitioner is that Martin’s counsel moved for a mistrial

which was denied. In the final analysis, however, there was

appellate reversal which is the question presented here.

The Supreme Court of Pennsylvania has also addressed

the question. In Commonwealth v. Bolden, 373 A.2d 90

(Pa. 1977) that court held that if a mistrial is ordered on

defendant’s motion alleging intentional or grossly negligent

misconduct of judge or prosecutor, the Double Jeopardy

Clause precludes retrial. The court specifically adopted the

reasoning of Kessler. 373 A.2d at p. 108.

In reversing this petitioner’s conviction below, the Court

of Appeals observed:

‘‘The facts in this ease reveal an incredible lack of

ordinary eare, diligence and prudence on the part of

the bank officials of the Hamilton Bank of Nashville,

together with their cupidity, all of which contributed

in large measure to whatever loss it sustained.’’ (Ap-

pendix A, infra, pp. 2a-3a).

—13—

The court then discussed the circumstances involving

petitioner’s relationship with the bank, (Appendix A, infra,

pp. 3a-5a) and concluded ‘‘. . . There was no proof that

the bank ever advanced one cent to the defendant on

any of these transactions, or that defendant made any sales

whereby the bank would be entitled to a commission.’’

(Appendix A, infra, p. 5a).

It seems to us that the character of the proof adduced,

coupled with the findings of the Court of Appeals with

regard to misconduct of the prosecutor, compels the con-

clusion that the prosecutor’s intent was indeed to provoke

a mistrial, especially in light of the warning by the dis-

trict judge that to offer the tainted evidence would be

‘‘overkill’’. (Appendix A, infra, pp. 7a, 8a).

Unfortunately, however, such a motion was not made.*

Nevertheless, we feel that this failure is not fatal and

brings us to the issue we raise here. If the motion had

been made in the trial court and granted, but with an

order to reprosecute, it would seem that that decision could

have been reversed on appeal if the above criteria were

found to exist.

We fail to see any material difference. The fact that

defense counsel in the trial court failed to move for a

mistrial should not prejudice defendant’s rights upon re-

versal where the issue is squarely presented and based

on precisely the identical circumstances. It seems to us

that, at the very least, the prosecutor was guilty of gross

negligence or intentional misconduct.

While we have found no case directly in point on the

issue raised here, we call the Court’s attention to a let-

4 Present counsel did not try the case in the district court.

cilities

ter from an Assistant Attorney General of the Criminal

Division of the Department of Justice which was consid-

ered and quoted in the Kessler opinion:

‘*The rule which we glean from the (Supreme) Court’s

decisions involving the right of retrial is that retrial

of a defendant is not constitutionally prohibited fol-

lowing the termination by mistrial or appellate re-

versal of a criminal conviction, as long as the ruling

which resulted in the mistrial or reversal was not an

acquittal, was for defendant’s benefit (see Gori, supra),

and was not necessitated by prosecutive misconduct.

Compare Downum vy. United States, 372 U.S. 734 [83

S.Ct. 1033, 10 L.Ed.2d 100]. Jt is irrelevant whether

or not the defendant made any motion for mistrial

or consented to the district court’s action. [emphasis

supplied ]

Letter from Honorable Will Wilson to Honorable John

L.. MeClellan, May 13, 1970, Senate Committee on Ju-

diciary, Amendments to the Criminal Appeals Act,

S.Rep. No. 91-1296, 91st Cong., 2d Sess. 10 (1970).’’

530 F.2d at pp. 1255-1256.

This quotation forms an integral part of the Court’s

rationale in Kessler. We suggest it cannot be ignored.

Of course, petitioner was never acquitted, although the

decision on appeal was in her favor. There was prosecu-

torial, not to mention judicial, misconduct. Our argument

that these principles apply to appellate reversal is, on the

analysis of the Attorney General contained in the above

letter, buttressed by the fact that the absence of a motion

for mistrial is said to be irrelevant.

We wish to emphasize that the Court of Appeals in re-

versing petitioner’s conviction adjudicated the misconduct

of the prosecutor in almost the exact language which Dinitz

and Kessler held to be ‘‘intentional’’ and ‘‘seriously prej-

= =

udicial’’ to the defendant. See, 530 F.2d at p. 1256. We are

repeatedly drawn to the adjudication of the Court of Ap-

peals in finding that the real reason that the testimony was

offered was to inject incompetent and inadmissible evi-

dence which was prejudicial and deprived defendant of a

fair trial. (Appendix A, infra, pp. 8a, 9a).

II.

THE MISCONDUCT OF THE TRIAL JUDGE WAS OF

SUCH PROPORTION AS TO FALL WITHIN THE PURVIEW

OF THAT CONDEMNED IN JORN, DINITZ AND LEE.

Petitioner also submits that the Double Jeopardy Clause

prohibits her reprosecution because of the misconduct of

the trial judge. The Court of Appeals did not reach this

question because its determination of prosecutorial mis-

conduct was deemed adequate to support its decision, how-

ever, the court significantly commented in its opinion ‘‘* * *

It is unlikely that the district judge would want to try

this case again’’. (Appendix A, infra, p. 13a).

This Court has recognized that ‘‘. . . The influence of

the trial judge on the jury is necessarily and properly of

great weight, and his slightest word or intimation is re-

ceived with deference and may prove controlling’’. Starr

v. United States, 153 U.S. 616, 626 (1894). See also, Querica

v. United States, 289 U.S. 466 (1933). Although the trial

court is not a mere moderator and may ask questions for

clarification of issues, it has been held that it is not a de-

sirable practice for him to interrupt the proceedings by

questioning the witness and interrogating the witnesses

in the presence of the jury in such a way as to place him

in the role of an advocate. United States v. Ball, 428 F.2d

26, 30 (6th Cir. 1969).

~——1lb—

We have counted approximately one hundred thirty-five

occasions, in the record, upon which the trial judge vio-

lated this principle.

The trial judge abandoned his impartiality and gave

the jury the impression that he did not believe petitioner,

(see, United States v. Wyatt, 442 F.2d 858 (D.C. Cir. 1968) ;

United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970) ;

United States v. Tobin, 426 F.2d 1279 (7th Cir. 1970);

United States v. DiSisto, 289 F.2d 833 (2nd Cir. 1961)),

and he conveyed to the jury an impression of his belief

in the probable guilt of the defendant which was too force-

ful to permit the jury freely to perform its function of

independently determining the facts. United States v. Di-

Sisto, 289 F.2d 833, 835.

The trial court began by disparaging the defense evi-

dence of a contract signed by petitioner and a prospective

wheat buyer in London. Since one of the government’s

contentions was that petitioner had no commodities for

sale, it was important for the defense to show that she

did in fact enter into contracts for the sale of commodities,

which was of course the purpose of the trip to London.

During defense counsel’s cross-examination of John Andre-

sen, a representative of the bank, the witness identified

an exhibit as a contract and testified that he witnessed it.

(Tr. 137-8) The court then took over and asked several

questions (Tr. 138-40), finally leading the witness: ‘‘In

other words, it was a piece of paper, no wheat and no

money, right?’’ (Tr. 140) The obvious thrust of the court’s

question was to ridicule the defense effort to establish

that petitioner had entered into a contract.

Later, during the testimony of the same witness, the

court resumed its comments on the contract:

= SS

‘“‘The Court: Let me see if I understand correctly.

There has been an exhibit introduced here, Exhibit

No. 11, that has been referred to as a contract between

McFayden Enterprises, Limited and a bank, no name

for buyer. The only thing indicating a buyer is the

last line under buyer it says by and then a signature.

Is that what you called a contract?

‘‘The Witness: This is what they were signing as

a contract.

‘“‘The Court: Is that what you called a contract

and told the people in Nashville on that long distance

line that the contract was signed and everything was

okay?

This is what you called a contract?

‘‘The Witness: This is what I would have called

it at that time.

‘The Court: Go ahead.

‘‘Mr. Windsor: I don’t have any more questions.

‘“‘The Court: Call another witness then.

‘‘Mr. Windsor: Mr. DeSantolo.

‘“‘The Court: Ladies and gentlemen of the jury, I

will tell you that this piece of paper or this document

doesn’t have in it anywhere the name of the buyer.

That is just left blank. It has other blank spots in it

that were purportedly going to be filled in sometime

but were not filled in before the document was signed,

if these are the signatures and the signature of Mrs.

Snider or McFayden-Snider purportedly witnessed by

John Andresen and somebody by the name of Jones

and the signature of another man who appears as the

buyer but not listed as said buyer, as representing

somebody else, witnessed by same, John Andresen and

another witness by the name of Jones.

It is an addendum in somebody’s writing purported-

ly noted by the signature of Heather McF'ayden-Snider

and R. Siheeb it has been called.

That is what has been called a contract. Okay. They

can see it later. Go ahead. Call your next witness.

Is that the only contract, Mr. Windson, we have got?

—-18—

‘‘Mr. Windsor: That is the only one that has been

identified. That is the only one I know of.

‘*The Court: Go ahead.’’ (Tr. 161-63)

The trial court’s comments on the contract, repeatedly

referring to it as ‘‘What you have called a contract’’ and

pointing oat to the jury that the name of the buyer had not

been filled in on the first page, more resembled the closing

argument of a prosecutor. The court’s remarks obviously

‘*had the effect of disparaging the defense’’ in the eyes of

the jury. (United States v. Grunberger, 431 F.2d 1062,

1067).

But the court’s most prejudicial comments came during

the testimony of petitioner herself. Early in her direct

examination he interrupted her testimony to argue with

her choice of words:

‘‘The Witness: Well, with the Union Pacific con-

tract because I was going to be dealing with a gentle-

man in Tennessee and between all of us we didn’t

have adequate cash flow in our bank accounts to cover—

‘“‘The Court: You meun you didn’t have enough

money at the bank? Is that what you are saying?

‘‘The Witness: Yes, sir.

‘‘The Court: Money in the bank sounds a whole lot

better to me than cash flow because T know what mon-

ey in the bank is.’’ (Tr. 307)

There were numerous other interruptions during direct

examination which are too lengthy to quote here. The

court’s questions were in the main in the nature of cross-

examination, an attempt to bring out and emphasize to the

jury alleged inconsistencies—followed frequently by com-

ments about the absence of documentary evidence to back

up the witness’ testimony. (Tr. 317-20; 344; 348-49; 393-

94; 396-403; 424-25; 433-35; 453-54; 461-63; 483; 490-91.)

.° orweer-

—19—

All of the foregoing interruptions by the court occurred

during direct examination.

Sometimes the court interrupted the order of direct

examination to ask for answers to questions which the

court wanted answered. (Tr. 358). The Court also asked

questions beginning ‘‘I thought you said * * *’’ and the

like. (Tr. 351; 353). The court also frequently commented

on the witness’ unresponsive answer in the presence of the

jury (Tr. 348) and charged counsel with the responsibility

for seeing that petitioner answered the questions. (Tr. 352)

The following is typical, again, on direct examination:

‘“‘By The Court: You never sold them anything, as

I understand? You never delivered anything, right?

‘‘The Witness: Your Honor, the reason—

‘“‘The Court: Just answer the question. Did you

ever deliver anything to them?

‘‘The Witness: No, sir, because—

‘‘The Court: Okay. I know you said because you

found out they were a fraud, is that right?

‘“‘The Witness: Yes. I would like to explain why

we took this $50,000. We took this $50,000 in good

faith.

‘‘The Court: You didn’t take the $50,000. You saw

a check written. You never got it?

‘‘The Witness: No. They put up the $50,000 as

escrow funds to guarantee they were going to per-

form their part by submitting their letter of credit

to the Hamilton National Bank, which never arrived.

‘‘The Court: Was the check part of an agreement?

‘‘The Witness: It was a contract.

‘‘The Court: Was it part of a contract that pro-

vided for this check to be issued and be held in es-

crow?

‘‘The Witness: Yes, sir, Your Honor.

‘‘The Court: Do we have that contract here?

‘‘The Witness: No, I don’t have it with me.

‘‘The Court: Allright. Go ahead.’’ (Tr. 368-69)

—_—

Again, we direct attention to the court’s comment as to

the absence of documents. And, again, a short time later,

the court asked: ‘‘Do you have anywhere in the world

any receipt, contract?’’ (Tr. 393). A few pages later

the court again interrupted the witness to ask where cer-

tain contracts were, (Tr. 399-402) asking: ‘‘You don’t

have any down here today?’’ (Tr. 399), and ‘‘You don’t

have any in Nashville for this trial?’’ (Tr. 402) The trial

Court’s persistent and repeated comments on the absence

of documentary evidence surely by now have taken on the

character of a prosecutor’s remarks during closing argu-

ment. Similarly the court later commented on the absence

of a witness, indicating there was nothing to corroborate

defendant’s testimony:

‘“‘The Court: Does he still have it, or do you have

it, or what?

‘‘The Witness: No, Mr. Kurth would have it, Your

Honor.

‘‘The Court: He has these things to show that you—

‘‘The Witness: We had a backup buyer.

‘“‘The Court: You had somebody buy them. You

don’t have them and he is not here?’’ (Tr. 483)

The court’s comments on defendant’s marriages and re-

lationships with men were also sarcastic and disparaging.

(Tr. 424-25; 441-43)

On cross-examination the court continued to interrupt

and engage in argumentative and sarcastic exchanges with

petitioner. (Tr. 498-501; 504-506; 508-509; 511; 516; 530-

31; 540-41)

The court’s comments continued after petitioner testified

that Delta Airlines was a creditor:

“The Court: Did you have an account with them

or give them a check for a ticket? Did you give them

a check for a ticket and the check bounced?

—2j—

‘*The Witness: I did, sir.

“‘The Court: That is why they became a creditor?

They didn’t open an account with you. You gave them

a check for a cash transaction and the check bounced?

‘“‘The Witness: Yes. I had to declare—Delta is

listed.’’ (Tr. 516)

The repeated interruptions by the trial judge ridiculing

her, arguing with her over her choice of words, cross-

examining her, commenting about the absence of documents

and about her marriages and relationships with other men

in a sarcastic and disparaging manner, once stating, al-

though out of the presence of the jury, that she did not

have any credibility, should give this Court some indica-

tion of the massive, if not overwhelming, prejudice and

atmosphere of guilt created by this judicial misconduct,

especially when further aggravated and compounded by the

attendant misconduct of the prosecutor.

We submit that it is no answer that the court instructed

the jury that credibility was to be determined by the jury,

and it should not construe anything the judge said as indi-

cating that he had an opinion in the matter (Tr. 651).

Here, as in United States v. DiSisto, 289 F.2d 833, it was

not possible to remove the prejudicial impression merely

by the instructions given in the charge. To the same ef-

fect, see United States v. Grunberger, 431 F.2d 1062, 1068.

While this is not the sort of judicial misconduct to be

found in Jorn and Dinitz, we think it is far worse. In those

two cases, the focal point was abuse of discretion. Here,

the court took over the trial of the case.

If the testimony of petitioner was so incredible, it would

seem unnecessary to resort to such tactics. The only con-

clusious we can draw is that this combined conduct of

court and prosecutor was designed to provoke a motion

29

for mistrial in order to strengthen the government’s posi-

tion at a later trial, or to assure the government a con-

viction.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

MARTIN S. GERBER

GerBeER & GERBER

39 South LaSalle Street

Chicago, Illinois 60603

HAL GERBER

GreRBER, BERNSTEIN, GERBER

& WINESTONE

3121, 100 North Main Building

Memphis, Tennessee 38103

Attorneys for Petitioner

APPENDIX

—)] s—

APPENDIX A

OPINION BELOW REVERSING CONVICTION

No. 76-2022

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unrirtep States Or America,

Plaintiff-Appellee,

Heatuer McFaypen-Sniper,

Defendant-A ppellant.

Appeal from the United States District Court for the

Middle District of Tennessee, Nashville Division.

Decided and Filed April 15, 1977.

Before: Weick and Livery, Circuit Judges, and Tay-

Lor", District Judge.

Weick, Circuit Judge. Appellant, Heather McFayden-

Snider (hereinafter referred to as Heather), appeals from

a judgment of conviction entered upon a guilty verdict by

a jury on two counts of an indictment charging her with

the marking of interstate telephone calls for the purpose

of carrying out a scheme to defraud the Hamilton Bank of

Nashville, in violation of 18 U.S.C. § 1343; on one count

* The Honorable Robert L. Taylor, Judge, United States Dis-

trict Court for the Eastern District of Tennessee, sitting by des-

ignation.

—

(Opinion Below Reversing Conviction)

charging mail fraud in violation of 18 U.S.C. § 1341; and

on one count charging the making of a false financial state-

ment to the Hamilton Bank of Nashville for the purpose of

influencing said bank in extending credit, in violation of

18 U.S.C. § 1014. The jury was unable to agree upon a

verdict as to a false verbal statement count and the Gov-

ernment dismissed the charge, namely, on Count 2. She

received three five-year concurrent sentences on the wire

and mail fraud counts, and a suspended sentence with

three years’ probation on the false financial statement,

Count 5.

Heather’s main contentions on appeal are that preju-

dicial error was committed and she was denied a fair

trial by the erroneous admission of evidence to the ef-

fect that she had been a prostitute; that such evidence

was not relevant in any respect to the mail fraud charges

for which she had been indicted, and such evidence was

introduced by the prosecutor for the sole purpose of cre-

ating prejudice against her; that evidence concerning her

writing bad checks was unrelated to the offenses charged in

the indictment; and that the trial judge assumed the role

of the prosecutor in extensively cross-examining witnesses

and commenting on the credibility of the defendant.

We reverse defendant’s conviction because of misconduct

of the prosecutor, and remand the case for a new trial.

I

The facts in this case reveal an incredible lack of ordi-

nary care, diligence, and prudence on the part of the bank

officials of the Hamilton Bank of Nashville, together with

4

——

(Opinion Below Reversing Conviction)

their cupidity, all of which contributed in a large measure

to whatever loss it sustained.

In March, 1974 Heather called by telephone from Miami,

Florida, a bank in McMinnville, Tennessee, to seek financing

for the purchase of railroad crossties for the Union Pacific

Railroad. That bank referred her to the Hamilton Bank of

Nashville and Max Herrin, the bank’s executive vice-presi-

dent. Shortly thereafter Heather contacted Herrin and in-

formed him of the need for financing on the railroad cross-

ties and on two or four million metric tons of rice com-

modities in South America which she stated she owned or

controlled. The difference between ‘‘two or four million

metric tons’’ and ‘‘owned or controlled’’ should certainly

have caused a banker with ordinary intelligence to make

some investigation to ascertain whether she owned or con-

trolled the rice, and the amount of it. The bank was eager

for her business because she promised the bank a com-

mission of one dollar on each ton of rice she was able

to sell.

On May 4, 1974 Heather came to Nashville to open three

bank eccounts in the Hamilton Bank. She submitted also

a notzrized financial statement in which she purported to

own more than $800,000 in assets. Among those assets,

the bulk of her wealth was tied up in four pieces of Florida

real estate, in which she claimed ownership of a 25% in-

terest, and a house in Pass Christian, Mississippi. In fact,

she did not own any of this property, but the bank did

not learn of these facts until late 1974. Heather’s account

was referred to the International Department of the Hamil-

ton National Bank in Chattanooga, a subsidiary of the

Hamilton Bank of Nashville.

—4a—

(Opinion Below Reversing Conviction)

On May 7, 1974 Heather wrote two checks for $6,300 to

the Hamilton Bank on her Florida bank checking account.

On May 24th the checks were returned unpaid for insuffi-

cient funds. Nevertheless, the Hamilton Bank officials ar-

ranged to have its John Andresen, from its International

Department, accompany Heather to England to check out

Heather’s buyers on her commodity contracts and the

banks that would be issuing letters of credit. Heather

agreed to pay Andresen’s expenses.

Andresen went to England on May 23, 1974 for two days,

and returned for a business meeting. He returned to Eng-

land on May 30th and remained there until June 13th.

Upon his return to the United States his airline ticket,

paid for by Heather, was not honored by BOAC because

Heather’s check to the airline had been returned for lack

of sufficient funds.

While in England Andresen never confirmed Heather’s

ownership of commodities, nor saw any warehouse re-

ceipts; however, he did sign as a witness on a ‘‘contract’’

for the sale of 500,000 metric tons of wheat, between Heath-

er as seller and a Mr. Siheeb as buyer. In the space in

the contract where the buyer’s name was to appear, nei-

ther Mr. Siheeb’s name nor any other person’s name ap-

peared. The deal was never consummated. Moreover, An-

dresen, Heather, Herrin, and James Denton, Hamilton Bank

President, participated in a conference trans-Atlantic tele-

phone call. The call concluded with the bank agreeing to

extend Heather $25,000 credit, a portion of which was to

be used to clear the unpaid checks and to pay for the

2 - a Sern 8 moe

—da—

(Opinion Below Reversing Conviction)

London trips’, two of which were made by Andresen, the

bank employee. In return, Heather executed a $25,000

promissory note. She received only about $20,000 of the

authorized credit. According to Alan Haefele, Vice Presi-

dent and Cashier, she paid $5,300 on the note. The note

was not even offered in evidence. The trips to London

failed to result in obtaining a single enforcible contract.

It does seem strange that with all the testimony about

interstate telephone calls to carry out a scheme to defraud,

mail fraud, and false financial statements relating in some

instances to railroad crossties, alleged deals for rice and

other commodities, concerning which the bank was to re-

ceive one dollar a ton as commission on the commodity

sales, there was no proof that the bank ever advanced

one cent to the defendant on any of these transactions, or

that the defendant made any sales whereby the barik would

be entitled to a commission.

Because Heather did not pay her indebtedness to the

bank, she was charged with fraud, convicted and sentenced

to three years’ imprisonment, plus probation, on Count 5.

When Heather returned to the United States she went

first to New York and Chicago; later she went back to Ten-

nessee to see where she stood with the Hamilton Bank.

On July 5 and 8, 1974 Heather met with John Mousou-

rakis of the International Department in Chattanooga.

1 The record is unclear whether Heather actually participated in

the call, and if she did, whether she heard the entire telephone

eall. Only Andresen testified that Heather was a part of the call;

Herrin and Denton never mentioned Heather as being at the other

end of the line.

—fa—

(Opinion Below Reversing Conviction)

Again Heather could not verify that she owned any com-

modities. When asked she presented to Mousourakis the

same financial statement which she had previously given

to the bank in May, 1974. Mousourakis was not persuaded

that Heather was still a good financial risk, and thus

Heather’s business dealings with the Hamilton Bank were

terminated. Heather never produced proof that she owned

or controlled the rice commodities, or any other com-

modities. The railroad crossties deal ‘‘fell through’’.

In November, 1974 the bank employed the services of

Timothy Hooper, a private investigator from Henderson-

ville, Tennessee, to investigate Heather. Apparently Hoop-

er’s investigation led to the federal grand jury indictments

herein.

I

During the trial the following colloquy occurred at the

bench, out of the hearing of the jury:

Mr. Windsor [Assistant United States Attorney]:

I want to make an offer of proof because I think

that the nature of it is somewhat sensitive. I don’t

want to jeopardise [sic] the proceedings so far.

The proof would be testimony from three separate

witnesses who acquired the information at three sepa-

rate times and places from the mouth of this defend-

ant that she was a professionai prostitute in Miami and

she worked the Democratic Convention and in that year

she made $25,000 quote lying on her back end quote

and described a house where she lived with other girls

and carried on the business of prostitution with a select

clientele of rich men and that when Mr. Joe Landrum

stated to her upon receiving this knowledge, Heather,

I don’t think yon are capable of that, she replied, of

course I am. How do you think I got all those rich men?

| ae lll

Sereno -

ee ee

—{a—

(Opinion Below Reversing Conviction)

I think it is relevant and proper on the question of

her credibility in this case.

The Court: Well, in the first place she doesn’t

have any credibility, and you have a lot more cred-

ibility matters on that.

Mr. Levine [Defense Counsel]: I believe there are.

The Court: I am not talking about in the past. I

am talking about overkill. I think this other is just

overkill.

Mr. Levine: Right.

The Court: That is just what you have got. Stay

away from that if you can avoid it. I think it is over-

kill. She starts telling you what a good woman she

is, that is a different deal. She isn’t saying that.

Nevertheless, on rebuttal the Government, through the

testimony of Nancy Ladner, Heather’s secretary during

September, 1973, introduced the following evidence:

Q. [By the Assistant United States Attorney]:

Did she [Heather] ever tell you about a time in Florida

where rich men were in competition with each other

dating her?

‘A. [Ms. Ladner]: Yes, sir.

Q. What did she tell you?

A. That there had been several men that had been

competing for her favors over a period of a year.

Q. Did she tell you ow they competed?

A. Well, that she had been kept by several men

over a period of a year.

Q. Did she say how much money she had made that

year?

A. $25,000.

The Government did not stop there. It immediately ques-

tioned Joe Landrum, a party who had shared office space

with Heather during part of 1973, concerning Heather’s

relationshiv with rich men. Mr. Landrum testified:

cus

(Opinion Below Reversing Conviction)

Q. [By the Assistant United States Attorney]:

Mr. Landrum, did Mrs. Heather McFayden-Snider ever

tell you about any relationship she had with rich men

in Florida?

A. Yes, sir.

Q. Where and when did she tell you this?

A. In Gulfport, Mississippi, in 1973.

Q. What did she tell you?

A. She told me she had sold herself to prominent,

wealthy men.

Heather contends that the jury could only conclude from

this testimony that she was a prostitute. She argues that

such testimony was irrelevant and prejudicial, and there-

fore it deprived her of a fair trial. It was properly char-

acterized by the District Judge as prosecutorial overkill.

Despite the warnings given by the District Judge to the

prosecutor at the bench hearing, the prosecutor persisted

in ignoring these warnings and deliberately offered the in-

competent evidence in rebuttal. This evidence rebutted noth-

ing; plaintiff did not testify that she had been a good

moral person.

The effect of the foregoing testimony was to impeach

the defendant’s character by her sexual conduct. In United

States v. Cox, 536 F.2d 65, 71 (5th Cir. 1976) the Court

said:

Evidence of illicit sexual activities is totally immaterial

to the credibility or character traits involved in most

criminal cases... .

This is especially true where the conduct does not involve

a substantive issue of the case, United States v. Coz, id.,

and would serve only to unduly harass the defendant. Unit-

ed States v. Marchesani, 457 F.2d 1291, 1297 (6th Cir. 1972).

%

ce

— =

(Opinion Below Reversing Conviction)

As noted by the Court in Aaron v. Uniied States, 397 F.

2d 584, 585 (5th Cir. 1968) :

Appellant was on trial for a crime which involved the

question of his honesty and fair dealing. The direct

examination of his character witness was properly

limited to these areas. Rumors of an illicit affair with

a woman, even if these rumors were true, were wholly

immaterial to the character traits involved in this case.

The question was therefore improper, and the defense

objection was properly sustained.

The proper standard which the trial judge should apply

in receiving this evidence is whether, in his sound discre-

tion, the probative value of the proffered testimony out-

weighs the possibility of undue prejudice to the defendant.

Only upon a grave abuse of discretion will his ruling be

overturned. United States v. Jenkins, 525 F.2d 819, 824

(6th Cir. 1975).

Applying this test to the present case, the trial judge

abused his discretion in permitting rebuttal testimony con-

cerning Heather’s ‘‘prostitution’’ activities to be introduced

into evidence. Allowing Landrum to testify that Heather

‘**sold herself to prominent, wealthy men’’ not only re-

sulted in prosecutorial overkill, but also permitted the jury

to consider evidence of Heather’s background which was

wholly unrelated to the charges against her of wire and

mail fraud and false statements. This evidence added noth-

ing to the prosecutor’s case and served only to cater to the

passions of the jury. It tended to put her on trial for con-

duct not in the indictment, and prejudiced her chance for

a fair trial.

—10a—

(Opinion Below Reversing Conviction)

HI

In the Government’s case-in-chief Nancy Ladner testified

that Heather had given her a pay and severance check in

September, 1973; and that the check was unpaid for lack

of sufficient funds in the bank. When Ladner confronted

Heather about the bad check Heather merely tore up the

check and wrote Ladner a new check on a different account

in another bank. This second check also was unpaid be-

cause the account had been closed.

Similarly, Joe Landrum received a check from Heather

for $125,000 representing payment to Landrum for work

performed for Heather. He received the check either in

late 1972 or early 1973. When he presented the check to

the bank Landrum discovered that Heather did not have

an account.?

Moreover, during cross-examination of the defendant, the

Government.asked Heather about a $15,400 check allegedly

written by Heather to Edmund Smith in January, 1973 on

what the evidence indicated was a nonexistent bank ac-

count. Although the check was never introduced into evi-

dence, Heather said she did not remember writing the

check. She did admit, however, that the signature on the

check appeared to be her signature.

At the close of the trial the trial judge instructed the

jurors generally as to intent and then noted that the evi-

dence that Heather gave bad checks to Ladner was proba-

2 Landrum also testified that he was in possession of a $500

check from Heather. It is unclear from the record whether this

check cleared for payment.

ee

mer eee

~ wee

-—j] la—

(Opinion Below Reversing Conviction)

tive of Heather’s intent to defraud, or a pattern or scheme

of action to defraud the Hamilton Bank, but not of her

guilt as to the charges in <.:e indictment.

Heather claims that the testimony concerning these bad

checks denied her a fair trial. She argues that this evi-

dence was unrelated to the charges in the indictment. The

Government on the other hand, responds that its questions

to Ladner and Landrum were relevant to show their bias

or ill feelings toward the defendant, and that the cross-

examination of Heather on the Smith check was proper.

This Court, however, agrees with the appellant that she

was deprived of a fair trial. Ladner and Landrum were

Government witnesses. It is not understandable why the

Government would want to prove that its own witnesses

were biased. The real reason the prosecutor offered the

testimony was to get before the jury incompetent and

inadmissible evidence which was highly prejudicial and

which deprived the defendant of a fair trial.

The evidence as to the bad checks concerned prior mis-

conduct by the defendant. Such evidence is inadmissible to

prove the defendant’s character or criminal propensity,

but rather, is admissible under Fed. R. Evid. 404(b) to

prove motive, opportunity, intent, preparation, plan, know!l-

edge, identity, or absence of mistake or accident. United

States v. Riggins, 539 F.2d 682, 683-84 (9th Cir. 1976) ;

United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976) ;

and Fed. R. Evid. 404(b), Advisory Committee Note.

Thus if the proffered evidence concerns misconduct other

than that charged in the indictment, it is inadmissible when

the resulting prejudice would be too great. United States

=

(Opinion Below Reversing Conviction)

v. Wiley, 534 F.2d 659, 663 (6th Cir. 1976), and would ‘‘not

tend to establish the commission by the accused of the of-

fense charged.’’ United States v. McCarthy, 470 F.2d 222,

224 (6th Cir. 1972). See also United States v. Blanton, 520

¥'.2d 907, 909-10 (6th Cir. 1975), and United States v. Geb-

hart, 441 F.2d 1261, 1264 (6th Cir.), cert. denied, 404 U.S.

855 (1971).

In the present case the evidence that Heather gave

Landrum, Ladner and Smith bad checks was wholly unre-

lated to the charges of wire and mail fraud and false state-

ments. Admittedly the evidence that Heather gave the

Hamilton Bank and BOAC bad checks was admissible even

though the checks were later paid by the $25,000 loan made

to her by the bank, which also took care of the expenses

of the trips to London.

Appellant Heather does not challenge this evidence. How-

ever, the contested evidence of bad checks to others tended

to put the defendant on trial for her prior misconduct, for

which she was not charged. This evidence did not merely

imply that Heather was a party to other mischief, but

rather it directly imputed to her other bad acts that were

not necessary to prove the prosecution’s case, and thus

the evidence was prejudicial to her right to a fair trial.

Furthermore, the trial court’s jury instruction did not

cure the prejudice from the inadmissible evidence. The jury

instruction was too limited because only the bad checks to

Ladner were ever mentioned. The jury’s exposure to this

evidence during the trial was never limited by cautionary

instructions that the evidence was received only as to the

defendant’s intent. See United States vy. Ailstock, 546 F.2d

1285, 1291 (6th Cir. 1976).

ee De ee

=

(Opinion Below Reversing Conviction)

IV

The testimony concerning Heather’s prostitution, and the

repeated introduction of evidence of Heather’s writing of

bad checks, independently are reversible error. Although

the evidence as to the bad checks is a closer question, the

Court is of the opinion that these errors were not harm-

less beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 24 (1967).

Lastly, Heather claims that the trial judge’s active par-

ticipation in the trial and his questioning of witnesses dur-

ing the trial gave the jury the impression that he did not

believe the defendant’s testimony, and that he was biased

and partial to the prosecution. Because of our resolution of

the question of admissibility of the testimony concerning

Heather’s prostitution activities and the bad checks we need

not reach this issue, as it is unlikely that the District Judge

would want to try this case again.

We therefore reverse the judgment of conviction of the

defendant and accordingly remand this case to the District

Court for a new trial.

ORDER SUSTAINING TRIAL COURT’S ORDER

DENYING MOTION TO

DISMISS ON DOUBLE JEOPARDY GROUNDS

(Filed December 9, 1977)

Nos. 77-5214, -5215, -5216

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unirep States Or AMERICA,

Plaintif f-Appellee,

vs.

HeatTHer McF aypen-Sniver,

Defendant-A ppellant.

ORDER

Before Weick, Livety and Merritt, Circuit Judges.

In United States v. McFayden-Snider, 552 F.2d 1178 (6th

Cir. 1977), we reversed and remanded for a new trial the

conviction of the defendant on two counts of an indictment

charging her with the making of interstate telephone calls

for the purpose of carrying out a scheme to defraud the

Hamilton Bank of Nashville, in violation of 18 U.S.C. § 1343,

and one count of making a false financial statement to the

Bank for the purpose of influencing said Bank to extend

credit, in violation of 18 U.S.C. § 1014.

The basis for the reversal was the misconduct of the

prosecutor in offering testimony concerning prostitution

and illicit sexual activities of the defendant, and also con-

call

—l5a—

(Order Sustaining Trial Court’s Order)

cerning her writing of bad checks, none of which testimony

was relevant to any issue in the case.

We did not pass upon the issue of conduct of the Judge

as we felt that he would not want to preside at any retrial

of the case.

Upon retrial the defendant filed a motion to dismiss the

indictment and to bar further prosecution on the ground of

double jeopardy, which motion was denied by the District

Court. The defendant has appealed from such denial. The

defendant has cited no cases to us upholding any such propo-

sition; nor did she object to our decision remanding the

case for a new trial, nor claim that the remand would vio-

late her constitutional rights.

The judgment of the District Court denying the motion

to dismiss is hereby affirmed in Appeal No. 77-5214.

The Government waited until after our reversal of the

judgment of conviction to indict the defendant on two counts

of perjury. The first count charged her with making false

statements in connection with a declaration of trust; the

second count charged her with testifying falsely that she

had been married to Snider.

Defendant filed a motion to dismiss the indictment on

the grounds that the prosecution violated her due process

rights, double jeopardy, and collateral estoppel. She also

claimed that she had been indicted for perjury because

she had appealed from her conviction. The District Court

denied the motion. :

Defendant also filed a motion to dismiss on the ground

of purposeful and intentional delay. The Court also denied

—l6a—

(Order Sustaining Trial Court’s Order)

that motion after an evidentiary hearing; she has appealed

therefrom. We find no prejudice in the delay.

With respect to the claim of double jeopardy, we are of

the opinion that it has no merit, as we explained in our

dicision in Appeal No. 77-5214.

We think, however, that it is unusual for the Government

to seek an indictment for perjury when there has been a

conviction at the criminal trial. It may violate the due proc-

ess rights of the defendant. This question can be determined

at the trial. It bears all the earmarks of punishment of the

defendant for prosecuting an appeal. At the oral argument

the prosecutor admitted that there probably would have

been no perjury indictment if an appeal had not been taken.

Upon the remand of this case the District Court is di-

rected to conduct an evidentiary hearing to determine

whether the prosecution would have sought a perjury in-

dictment if the defendant had not appealed and the judg-

ment had not been reversed. If the evidence supports such

contention the perjury indictment should be dismissed. No

one should be punished for prosecuting an appeal.

The Judgment of the District Court in Appeals Nos. 77-

5215 and 77-5216 is affirmed as modified.

Entered By Order Of The Court

/s/ John P. Hehman

Clerk

ORDER DENYING PETITION FOR REHEARING

(Filed January 13, 1978)

No. 77-5214

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unttep States Or America,

Plaintiff-Appellee,

vs.

HeatHer McF'aypen-Sniw|er,

Defendant-A ppellant.

ORDER

Before: Weick, Livery and Merritt, Circuit Judges.

We find no merit in the petition for rehearing and it is

hereby denied.

It has long been settled that where a defendant has suc-

cessfully appealed from his conviction and the judgment is

reversed, he may be retried. A plea of double jeopardy in

such a case is denied. United States v. Ball, 163 U.S. 662

(1896). Cf. Green v. United States, 355 U.S. 184, 189 (1957).

Entered By Order Of The Court

/s/ John P. Hehman

Clerk

on the face of this is stamped ‘‘filed January 13, 1978”’.