Petition — Frakes v. United States

RECEIVED

nov 17 ‘977

OFFICE OF THE CLERK

SUPREME COURT, U.S.

—

SUPREME COURT OF THE UNITED STATES

er 7-57 42

KENNETH RAY FRAKES,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Kurt A. Philipps, Jr.

1401 Dixie Highway

Covington, KY 41011

Attorney for Petitioner

TABLE OF CONTENTS

Page(s)

Table Of COMtemtS .ccccccccccccccccccccccccsccccscececccecessseesseceeees i

List of Authorities ......ccccccccccccccccnceerncseneeesseesseesssesseseees ii, iii

Opinions Below ..- +... eeee cere eee cee reer eeeeeeeeeeeeeneeeeeeaseseceesees 1

Bemedhatien cc cccccccccccccccccscccscsscssescccvcccscccccesosssccccgcens 2

Questions Presented ..--.eeee cece rece eee ee eee renee eneenasesernaereseenes 2

Statement Of FactS ....- ccc eeeee cece cree ce ceeeeeeeceeeeeeeeeeeeresserees 3

Reason for Granting the Writ

l. The decision by the Sixth Circuit interpreting

the term "stolen" in 18 U.S.C. 2314 (National

Stolen Property Act) as broadly as that term

is used in 18 U.S.C. 2312 (Dyer Act) is an

important question of federal law which should

be settled by the Supreme Court......--seeeeeeeeeeeees 7

2. Petitioner was denied his Sixth Amendment

right to have compulsory process where the

trial court refused to enforce a subpoena on

Helen Frake....cccccccccccccccccccccccccceccsccees -10

3. The Assistant United States Attorney denied

Petitioner a fair trial because of repeated

reference to extraneous criminal activity

in violation of F. R. Ev. 404(D). 1... cece cece eee een nce 12

4. The government failed to prove the tractors

in issue had a market value in excess of

$5,000 in contravention of 18 U.S.C. 2312.......+.+6-- 14

5. The trial court erred in not requiring for

cross-examination the delivery of notes

prepared and used by a witness to refresh

his memory in violation of F. R. Ev. 612

and 18 U.S.C. 3500... .cccgeccccccccccccccccesccesces 16

Appendix (Sixth Circuit Opinion)

LIST OF AUTHORITIES

Barber v. Page, 390 U.S. 719 (1968)... ... cece cece eee creer rereereneeencees 11

Cave v. United States, 390 F.2d 58 (8th Cir. 1968),

cert . denied 392 U.S. 906 (1968)... .. cece cece eee e eee eeenereereererereeees 15

Chambers v. Mississippi, 410 U.S. 284 (1973) ....--+eeeeeer rere reeerereeee 10

Gordon v. United States, 164 F.2d 855 (6th Cir. 1947),

cert . denied 333 U.S. 862 (1948) ..... cece cece cee eneeeeerenneerrereeereens 15

Herman v. United States, 289 F.2d 362 (Sth Cir. 1961).....+-eeeeereeecers 15

Roberson v. United States, 282 F.2d 648 (6th Cir. 1960),

cert. denied 364 U.S. 879 (1960) ..... cece eee e cence rere rcererererereneeees 17

Streett v. United States, 331 F.2d 151 (8th Cir. 1964).....--eeeeeeeevecees &

United States v. Ailstock, 546 F.2d 1285 (6th Cir. 1976)....-+e+eeeeeeevees 14

United States v. Alloway, 397 F.2d 105 (6th Cie, Bo ccccecsscencocscens 14

United States v. Allsenberrie, 424 F.2d 1209, 1215

(Tt Cir. 1970)... cccccccccccccccvcccccccccccvccssssscssssvesensesecses 17

United States v. Barker, 553 F.2d 1013 (1977) ....---eee eee eereerceeees 10,11, 14

United States v. Calabrese, 421 F.2d 108 (6th Cir. 1970),

cert. denied 397 U.S. 1021 (1970)... .. cece eee cece weer ene reeeeeeneeeeeeees 17

United States v. Graves, 428 F.2d 196, 199 (5th Cir. 1970),

Cert. denied 400 U.S. 960... ... cece eee e eee ewer weer ee ee ee erneeeeeereees 17

United States v. Hamrick, 293 F.2d 468 (4th Cir. SURED . ccccvescocdscectos 15

United States v. Howard, 450 F.2d 792 (9th Cir. 1971) .....---eeeeeeeeees 17

United States v. Leggett, 292 F.2d 423 (6th Cir. 1961),

cert. denied 368 U.S. 914 (1961), reh. denied 368 U.S.

GTO (1962) . cc ccccccccccccccccccvcccccccccccsecesccessssecessessesseeees 9

United States v. Leon, 534 F.2d 667 (6th Cir. 1976) ....-.-eeeeeeeeeerees 14

United States v. Lynch, 499 F.2d 1011, 1023 (D.C. Cir. 1974)....++--+-. 13

United States v. Nall, 437 F.2d 1177 (Sth Cir. 1971) ...---seerereceeeeees 15

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975)....+---eeeeeeeeeres 14

Unitec “iates v. Sheridan, 329 U.S. 379 (1946)....--e eee ee eee rerececces 8

United States v. Smith, 521 F.2d 957, 969 (D.C. Cir. 1975)....-+.-++++: 16

United States v. Stoner, 487 F.2d 651 (6th Cir. 1973) ...---eeeeeeeeeeeees 15

ii

United States v. Turley, 352 U.S. 407 (1957)... .. cee eee ee eee cence ween

United States v. Wiley, 534 F.2d 659 (6th Cir. 1976),

cert. denied sub nom. O'Donnell v. United States, 425

ls Ec oh cbeceéecessoece CELE LILES IIPS POE TEE ET ECT TTT OLE? 14

Washington v. Texas, 388 U.S. 14, 23 (1967)... .. ccc eee e cece eee eeeneees 10

MISCELLANEOUS AUTHORITIES:

Federal Criminal Rule 17............2eeeee8. Pete eee e eee eee e eee en ees 11

POGarel BviGemes Rule GOED). oc cccccccccccccccccccccccccccccescccsescces 14

POGeras Rake OF BviGemee GIS. nc cccccccccccccccccccccccscvcccsccccocesess 16

Westen, Compulsory Process II, 74 Mich. L. Rev. 191 C19TE) .nccccccccees 11

BP Wes Beeb eccccecccccccegeescessccccosoccecesccusoeccsccecsosees 15

18 U.S.C. 2312...... PUTT TTTIT TTI TTT TITEL TTTTiTiii rire ee 7

BP ac DER e sc ccicecccccesccccescccccccncccscscocveceoseseesececoes 7, 8, 9

Be es Tc ce vcc recess vccccccccccccccsencccqcecceccccceseseeseeooess 8

| FE ee = PPT TTT TT TTTTTE TILT ITIP TITTLE 8

SPOR, BEGG) BD) cccccecccesvceccccccccvcsscsecvccceccseeeseeses —s

BD BB. TR cc vce ccc wccccccccsssccccccccccsecvceccoescocccecccese 17

iii

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

KENNETH RAY FRAKES,

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, Kenneth Ray Frakes, prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for the Sixth Circuit

entered on October 18, 1977 affirming the judgment of the United States District

Court for the Western District of Kentucky.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Circuit is not yet reported

and appears in the Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered by the Clerk on October 18,

1977. The writ of certiorari was filed within 30 days of that date. 28 U.S.C. 1254(1)

gives this Court jurisdiction to review the judgment by writ of certiorari.

QUESTIONS PRESENTED

I

Whether the interstate transportation of a tractor purchased with an insufficient

funds check can be prosecuted under 28 U.S.C. 2314.

A. Is the term "stolen" in 28 U.S.C. 2314 to be given the same

interpretation as the term "stolen" in 28 U.S.C. 2312?

B. Is United States v. Turley, infra, which interpreted 28 U.S.C.

2312 applicable to 28 U.S.C. 2314?

II

Whether the petitioner was denied his Sixth Amendment right to have

compulsory process.

A. Should the trial judge have granted petitioner's motion for

continuance to permit appearance of Helen Frakes who could

verify petitioner's past business experience selling tractors?

Ill

Whether the Assistant United States Attorney overstepped the bounds of

legitimate trial zeal in referring to extraneous criminal activity thereby denying

petitioner his right to a fair trial.

A. Did Federal Rule of Evidence 404(b) mandate exclusion of any

reference to other "cold" checks allegedly cashed by petitioner?

B. Was there a sufficient showing of similarity between the two

checks on which the prosecution was based and other remote

and unproven "cold checks" to justify admission pursuant to

F.R. Ev. 404(b)?

IV

Whether 28 U.S.C. 2314 requires testimony that the market value of the

tractors was $5,000.

A. Is the failure to offer proof that the market ‘alue of the

tractors was $5,000 a failure of proof?

B. Did the trial court err in not granting tiie petitioner's

motion for acquital where the only evidence of market

value was the purchase price paid by the petitioner?

Whether the trial court erred in not requiring disclosure of notes of a

government witness used to refresh his recollection pursuant to F. R. Ev. 612.

STATEMENT OF FACTS

On September 15, 1975, Petitioner Frakes contacted James McCarty of Murray,

Kentucky who did business as J.D. Equipment Company. McCarty testified that

after some "dickering" he agreed to sell Frakes a used 1973 John Deere tractor for

$16,000. McCarty indicated that Petitioner gave him a check for $16,000 drawn on

City National Bank, Memphis, Tennessee. The check was drawn on the business

account of Mid-South Tractor Company which had been opened on August 28, 1975.

An initial deposit of $9,500 had been made when the account was opened. On

September 4 another deposit of $12,000 was made. On September 12, the bank

on their own initiative closed the account because the account was a "headache."

There was $4,537 in the account at the time it was closed. A total of $21,500 had

been deposited in the account while it was active.

Mr. McCarty testified Frakes identified himself as a tractor dealer doing

business as Mid-South Tractor Company. On September 16th, the John Deere

tractor was released to Frakes even though the check had not yet cleared the

bank. McCarty indicated he delivered the tractor under the circumstances

because "we had done business with the company that he referred to that he

represented; that was the main reason I accepted the check ." When McCarty

discovered the check had been dishonored he attempted to recover the tractor,

however, he was unsuccessful.

The Government also called Danny Flood of Mayfield, Kentucky who did

business as Ford Richardson Tractor Company. On September 22, 1975 Flood

met Petitioner who had come to his place of business to purchase a tractor.

Petitioner represented that he was in business as Mid-South Tractor Company.

The parties were able to strike a bargain for a new International Parvester

tractor which was paid for by a check for $18,000 drawn on the Peoples State

Bank of Midlington, Tennessee. The account had been opened on September

18, 1975 by Petitioner in the name of Mid-South Tractor Company, with an

initial deposit of $1,900. This deposit was the balance of a $12,000 cashier's

check negotiated at Peoples State Bank on the date the account was opened.

On September 22, 1975 there was $925 in this account.

At the time the International tractor was purchased Petitioner told Mr. Flood

he had purchased another tractor from Mr. McCarty. When this fact was verified

by telephone, Mr. Flood permitted the tractor to be loaded onto Petitioner's truck.

On September 23, Mr. Flood was contacted by J.D. Equipment Company that the

check which had been given to their cashier by Petitioner had been returned.

Mr. Jackie James testified that someone identifying himself as Kenneth Ray

Frakes brought the International Harvester tractor to his auction business and

asked him to sell it. When he was later contacted by McCarty and informed of

the circumstances surrounding the tractor he asked the local authorities to take

possession of the tractor. James testified that Frakes asked him to sell the

tractor for $15,500 or $16,500. James also indicated that although he did not

know Frakes personally , he did know his father for whom he had conducted

auctions at All State Tractor Company.

Arthur Webster, an FBI agent, testified he arrested Frakes on January 16,

1976. Special Agent L. V. McGinty testified he obtained a statement from Frakes

on April 30, 1976 at which time he admitted purchasing the International tractor

and delivering it to James for resale. This oral admission contradicted James'

testimony in that Frakes stated the resale price was to be $18,500. Referring to

the John Deere tractor Frakes told Agent McGinty it had been sold to his father

in Arkansas, however, he had no record of its later sale by his father to unknown

persons. The records of this sale were in the possession of Stan Frakes and

Merlon Northcutt, who had assumed control of the father's business after he was

murdered. At close of the government's proof, counsel for Petitioner moved for an

acquital on grounds of a failure of proof. This was overruled.

The defense called only one witness. Frakes testified he was employed by

his father from 1972-75 in the tractor business. He admitted the checks in question

were dishonored. He explained the bank accounts were insufficient to cover the

outstanding checks because his step mother, Nell Frakes, failed to deposit

money which had been earmarked for the Mid-South account by his father. Frakes

admitted purchasing the John Deere tractor, however, he stated he dealt with

McCarty by phone and mailed the $16,000 to him four days before going to Murray,

Kentucky on September 15, 1975. The money to cover the $16,000 check was to

have been deposited by his step mother at the direction of Frakes’ father. At

the time the check was signed Petitioner believed the check would be honored

because of the anticipated deposit.

Petitioner testified his mother helped him keep the books for Mid-South

Tractor Company. In fact, they were in her possession at the time of the trial.

In the past he had sold and bought tractors al! over Tennessee, Arkansas,

Mississippi, and Louisiana. Frakes denied he told the FBI he had cashed bad

checks before. On cross-examination, Frakes testified he had been office manager

from 1972 to 1975 for All State Auction Sales and Frakes Truck Company which

were both owned by E. O. Frakes, the Petitioner's father. He admitted that he

knew when he signed the check for the John Deere tractor that there were

insufficient funds in the bank, however, he post dated the check for September

15, 1975 with the anticipation of his father depositing money in the Mid-South

account before the check cleared. Petitioner denied that City National Bank

had advised him on the phone that his bank account would be closed. He

indicated the bank had agreed to forego closing the account until the deposit

by his stepmother. Prior to the checks, the subject of this prosecution, the

Petitioner had bought other vehicles and paid for them by checks which were

honored. The business address which had been listed on Peoples State

account was a warehouse used by the Petitioner in furtherance of his business

activities.

Prior to the close of the defendant's case in chief, counsel moved for a

continuance on the ground that Helen Frakes, the Petitioner's natural mother,

did not appear even though she had been served with a subpeona by the

United States Marshall. After an extended conference in chambers the trial

judge denied the motion for a continuance ruling her testimony was not

necessary. The government called no rebuttal witnesses.

Following oral arguments and instructions by the trial court the jury

retired and later returned a verdict finding the Petitioner guilty on both

counts in the indictment.

THE INTERPRETATION OF "STOLEN" IN 28 U.S.C. §2314 BY THE SIXTH CIRCUIT

IS A MATTER OF FIRST IMPRESSION AND IS AN IMPORTANT QUESTION OF FEDERAL

LAW WHICH SHOULD BE SETTLED BY CHE SUPREME COURT.

ARGUMENT AND AUTHORITIES

The pivotal issue in this assignment of error is whether an insufficient funds

check for the purchase of a tractor which is transported in interstate commerce

violates the National Stolen Property Act. Neither the legislative history nor the

clear meaning of 18 U.S.C. 2314 contemplates the prosecution of facts in which an

object is acquired with an insufficient funds check.

As noted by the Sixth Circuit, the issue before this court is a matter of first

impression. However, the analysis offered by the lower court to resolve this

unique question is incorrect. By resorting to United States v. Turley, 352 U.S.

407 (1957) the court concludes that the broad interpretation of the term "stolen"

in the Dyer Act (18U.S.C. 2312) should be given to the term "stolen" in 18 U.S.C.

2314. Turley is inopposite in the instant case because the legislative history of

the Dyer Act indicates the interstate transportation of stolen automobiles was a

critical problem unsuited for detection and prosecution by state authorities.

Turley, Supra at 414 The Dyer Act was the only way of suppressing this present

and growing problem. The reason the term "stolen" was given a broad interpre-

tation was to meet this pervasive problem. In the instant case there is no present

or growing problem in the interstate transportation of tractors or any other

commodity purchased with insufficient funds checks. Likewise, the purchase of

a tractor with an insufficient funds check cannot possibly be beyond the authority

or administration of state prosecution. In fact, Petitioner has been tried and

convicted in Kentucky Circuit Court for the same transaction thereby coroborrating

the position taken in this appeal that the use of an insufficient funds check is

not a "distinctly federal crime" unsuited for local prosecution. United States v.

Sheridan, 329 U.S. 379, 387 (1946) The strained application of dicta in the

Turley decision is not justified because the exigent circumstances which

justified Turley are not present in the case at bar.

Congress has isolated certain types of criminal conduct which for one reason

or another the states have not been able to adequately police. The Dyer Act is

an example of this Congressional perogative and deals with "automobiles" and

"aircrafts." Parallel to the Dyer Act are several other federal laws which Congress

specifically indentified as worthy of federal enforcement. 28 U.S.C. 2318 makes |

it a federal crime to transport in interstate commerce an article upon which sound

can be recorded on which there has been a forged or counterfeit label. Under

§2316 it is a federal offense if stolen cattle are transported in interstate commerce.

Even the statute in question, 28 U.S.C. 2314, specifies certain types of criminal

conduct which warrants federal prosecution with primary focus on bogus or forged

checks and securities. There is a dearth of case authority in which an insufficient

funds check was the subject of an indictment under §2314. In fact most prosecutions

_ under the National Stolen Property Act are due to forged, embezzled, or counterfeit

securites or checks. Py authorizing the prosecution of the facts of the instant case

the Sixth Circuit has given a broader interpretation than Congress has authorized.

United States v. Sheridan, supra; Streett v. United States, 331 F.2d 15] (8th Cir.

1964)

If Congress had thought insufficient funds checks posed a grave danger

they could have enacted specific laws to provide legislative coverage. A fortiori

had Congress intended the broad and inclusive interpretation given by the Sixth

Circuit in the instant case there would be no need for the specific federal statutes

which have been promulgated for the prosecution of interstate thefts. Justice

Frankfurter in his dissent in Turley cautioned the broad coverage of §2314

given by the Sixht Circuit in the case at bar because to do so would sweep into

the crowded federal system "a mass of offenses that are local in origin." 325 U.S.

407, 418

Assuming arguendo, the facts of the case at bar can be prosecuted under

18 U.S.C. 2314, clearly the evidence was insufficient as a matter of law to

sustain the conviction. Considering the circumstances surrounding the two

sales transactions it is impossible to detect fraud or the intent to defraud.

Absent from the present case are any "badges of fraud" or any other circumstances

from which an inference of fraud can arise. In United States v. Leggett, 292 F.2d

423 (6th Cir. 1961), cert. denied 368 U.S. 979 (1962) the court identified certain

indicia of fraud which are normally present: inadequacy of consideration, secret

or hurried transactions, and the use of dummy or ficticious persons. These

were absent in the prosecution against 7rakes. There was nothing secretive

about the transactions with Flood and McCarty. They were bona fide sales. No

fictitious names were used. Petitioner's representations of himself and his

business experiences were truthful. The tractors were not stolen. They were

subject of a face to face transaction between experienced businessmen. Petitioner

was who he purported to be, a tractor salesman. Likewise, the exchange of

checks for the tractors was exactly what it purported to be, a commercial exchange

for retail goods. Although the checks were insufficient they were not of a frequency

to conclusively establish Petitioner's intent to defraud. The mere fact that money

was not in the bank at the time the checks reached the bank does not violate

18 U.S.C. 2314. Viewing the evidence in its most favorable light reasonable minds

could not conclude beyond a reasonable doubt that Frakes intended to defraud

McCarty and Flood.

II

THE PETITIONER FRAKES WAS DENIED HIS SIXTH AMENDMENT RIGHT TO HAVE

COMPULSORY PROCESS WHERE THE TRIAL JUDGE REFUSED TO ENFORCE A

SUBPOENA SERVED ON MRS. HELEN FRAKES.

ARGUMENT AND AUTHORITIES

Defense counsel requested the issuance of a subpoena for Helen Frakes,

the mother of Petitioner, approximately four days before trial which began on

Wednesday, October 13, 1976. The marshal was unable to serve her until October

13, 1976. She was served at Marianna, Arkansas. Counsel for Petitioner moved

for a continuance until her presence could be assured. The government opposed

the motion contending her testimony was cumulative. Petitioner's counsel pointed

out Mrs. Frakes was the only one who could produce any business records main-

tained by Frakes. Equally as important was the fact that she was the only one who

could substantiate Frakes' testimony that he was in the tractor business. The

motion for continuance was denied even though the trial court noted that the

Petitioner's announcement of ready was conditioned on Mrs. Frakes being present

to testify. —

Few rights are more fundamental than that of an accused to present witnesses

in his own defense. The failure to provide avenues of compelling a subpoenaed

witness to appear denies an accused his Sixht Amendment right of compulsory

process. Washington v. Texas, 388 U.S. 14, 23 (1967); Chambers v. Mississippi,

410 U.S. 284 (1973). In United States v. Barker, 553 F.2d 1013 (1977) the

Sixth Circuit reaffirmed this Sixth Amendment right. The Barker decision

held that a defendant need only show a witness is necessary for his/her

defense in order to compel his/her attendance. "Necessary" was defined to mean

relevant, material, and useful to an adequate defense. Although the prosecution

sought to minimize the importance of the Petitioner's mother, apparently she was

the only one who could produce business records of his business operation or to

10

verify the business relationship of the defendant and his father. Unlike witness

Northcutt, the defendant's brother-in-law who was excused from testifying because

he would not be able to aid the defense or prosecution, Mrs. Frakes was the only

person identified who would,have first hand knowledge of her son's prior

business history. The only evidence in the record pertaining to Mrs. Frakes

favors the production of this relevant witness. Petitioner indicated his mother was

the only one who could corroborate his previous business experience. The

relevant testimony would also rebut the insinuations of the prosecution that he was

acon man engaged in a "sting." Clearly the arguments advanced by counsel for

Petitioner satisfy the standard enunciated in Barker, i.e. "the appropriate

standard is whether defendants have alleged that the witnesses will testify about

facts that are relevant to any issue in the case." supra at 1021 (emphasis added) ‘

It would have been within the authority of the court to issue an arrest warrant

for the mother in order to determine whether she could give "necessary" testimony.

To require the issuance of a subpoena and subsequently not enforce it makes Federal

Rule 17 meaningless and an empty ritual. As was observed in by Westen, Compulsory

Process II, 74 Mich. L. Rev. 191 (1975):

{I]t is insufficient simply to serve the witness with a

subpoena and rely upon him to appear at trial. Ifthe

witness fails to appear the state must try to enforce

the subpoena by dispatching officers to arrest the

witness, and, if these efforts are unsuccessful, the

state 'must demonstrate that it has been unable to

obtain the witness' presence through a reasearch

exercised both in good faith and with reasonable

diligence and care,' quoting U.S. v. Lynch, 499

F.2d 1011, 1023 (D.C. Cir. 1974). At 279-280.

Barker, supra requires that the government itself must exercise due

diligence to secure the attendance of subpoenaed witnesses. Barber v. Page,

390 U.S. 719 (1968). In order to lend force to the subpoena served on Mrs. Frakes

the trial court should have directed the marshal to arrest Mrs. Frakes in order to

aid in the compliance of the issued subpoena. The trial had only taken one and

one-half days and a continuance until the witness could be brought into court

would have served to assure Petitioner's right to compulsory process. As it

11

presently stands by not requiring Mrs. Frakes' presence Petitioner's right of

compulsory process was not fully enforced.

Ill

PETITIONER WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE OF THE

PREJUDICIAL MISCONDUCT OF THE ASSISTANT UNITED STATES ATTORNEY.

ARGUMENT AND AUTHORITIES

There are two repetitive acts of misconduct which occurred during Frakes'

trial where the prosecutor overstepped the bounds of legitimate trial zeal and con-

duct. The first area is the repeated references to extraneous criminal activity

which were totally irrelevant to charges in the indictment.

In the direct examination of Mr. Milnor, the prosecutor referred to checks

other than the two which were the subject of the two count indictment;

Q. Now during the existence of that account

from the time it was initially opened until the time

it was closed, what was the total amount of monies

deposited in that account?

A. $21,500.

Q. Now onthe number of checks the bank has

received hack, what is the total number of checks

in terms of value actually written on that account?

A. $75,555.36.

Q. Sothen if my math is correct, approximately

$60,000 more than was ever deposited in that account,

is that correct? (Emphasis added)

A. Right.

Q. Did Mr. Frakes ever attempt to resolve that

with you personally?

A. No.

Q. But the persons who had submitted those

checks for payment had already supplied some

services of value to Mr. Frakes insofar as you

know? (Emphasis added) (T. 132, 133).

12

On the direct examination of Agent Webster, the prosecutor asked:

Q. Did he make a statement concerning check

passing activities?

A. Yes, he did. He told me he had passed bad

checks before. (T. 147, 14%).

In cross-examining the Petitioner Frakes, the prosecutor intentionally injected

reference to other cold checks when he asked:

Q. If your - you are worth $21,000 worth, or you

had $21,000 worth of deposits at the City National

Bank - you wrote $75,000 worth of checks, where

were you going to come up with that extra nearly

$55,000? (sic.) (T. 226)

He emphasized these extraneous checks by asking about checks allegedly written

one and one-half months after the checks which were the subject of the prosecution.

Q. Then why were you still writing checks

as of October 31st on that account? (T. 229).

Another example of the over zealous conduct of the prosecutor was:

Q. Out somewhere else? You mean you'd

written $42,000 worth of checks that were no good?

(T. 232).

On recross-examination the prosecutor boldly added his own personal opinion

and commented on extraneous offenses when he stated:

Q. You don't pay for much, so you say you

kept records yourself. (T. 240).

In his closing argument Mr. Boyle again highlighted other check activity when he stated:

It is interesting to note that a guy who has

$21,000 in deposits but writes $75,000, in excess

of $75,000 in checks... (T. 267).

It is clear these references to other criminal activity served to depict

Petitioner as a "con" man. At notime did the government seek to substantively

prove any of these transactions in order to show motive, plan, design or intent.

Instead, the government chose to refer to them without proving any relevant

pattern or relationship to the check writing under prosecution. Assuming arguendo,

that substantive evidence had been offered, clearly the mere passage of insufficient

funds checks in the past would be sufficiently dissimilar from issuing two checks

13

for farm equipment to warrant exclusion under Federal Evidence Rule 404(b). See

also, United States v. Ring , 513 F.2d 1001 (6th Cir. 1975); United States v. Wiley,

534 F.2d 659 (6th Cir. 1976), cert. denied sub. nom. O'Donnell v. United States,

425 U.S. 995 (1976); United States v. Ailstock, 546 F.2d 1285 (6th Cir. 1976).

The second instance of prosecutorial misconduct occurred when Mr. Boyle

stated in his closing argument:

Consider that. Consider these facts, and consider

all these things and send a message to those people

who want to steal, those people who want to defraud,

and those people who want to take those things which

you and I have to work hard for, which you and I sweat

for; and we gain in a legal way, which he wants to take

away in anillegal way. (T. 272).

This clearly is more than a reference to or an appeal for law enforcement.

In United States v. Barker, supra it was noted that some legitimate reference

may be made to law enforcement when it is coupled with a limiting instruction.

at 1025; See also, United States v. Alloway, 397 F.2d 105 (6th Cir. 1968). There

was no instruction in the instant case. Considering the reference in the light

probably intended by the government, it was more an appeal to the provincial

prejudice of the jury, rather than to the general need for effective law enforcement.

In addition to this appeal to provincial prejudice, the prosecutor continually

referred to Petitioner as a "confidence man," a "thief," a "con man" engaging in a

"sting." Clearly the cumulative effect of these personal remarks along with reference

to the unproven extraneous checks of $75,000 was to unfairly prejudice the Petitioner

and deny him a fair trial. United States v. Leon, 534 F.2d 667 (6th Cir. 1976).

IV

THERE IS NO EVIDENCE THAT THE TRACTORS ALLEGEDLY TAKEN BY FRAUD

WERE VALUED AT $5,000.

ARGUMENT AND AUTHORITIES

The record is void of any expert or non-expert testimony as to the market

value of the two tractors. The record does reflect that a $16,000 check was given

14

for the John Deere tractor and that an $18,000 check was given for the International

Harvester equipment. The government did not qualify either McCarty or Flood as

expert witnesses, nor were they ever asked about the market value of the tractors.

Assuming by some stretch of evidentiary imagination they could be characterized

as expert witnesses, they were never asked to state an opinion as to the market value.

Under 18 U.S.C. 2311 "value" means face, par, or market value. Cases

which have interpreted the value of property taken by fraud have insisted on a

standard of market value at the time and place of taking. Gordon v. United States,

164 F.2d 855 (6th Cir. 1947), cert. denied 333 U.S. 862 (1948); United States v.

Stoner, 487 F.2d 651 (6th Cir. 1973); Cave v. United States, 390 F.2d 58 (8th Cir.

1968 ), cert. denied 392 U.S. 906 (1968); Herman v. United States, 289 F.2d 362

(Sth Cir. 1961); United States v. Hamrick, 293 F.2d 468 (4th Cir. 1961). Value

to owner is not market value under this statute. Herman, supra at 366. The only

evidence of "value" was the amount of the check given tothe owners. In United

States v. Nall, 437 F.2d 1177 (Sth Cir. 1971), the government failed to prove the

$5,000 requirement where the only witness called was the owner of the stolen

securities. The court reasoned that the testimony of the owner had little probative

value. When the testimony in the case at bar is compared with the Nall case one

discovers there was more evidence of value in the Nall case than the instant case.

At no time were the witnesses Flood and McCarty asked about the market value of

the tractors. In Nall, the owner of the securities did give his opinion based on

market value, nevertheless, his opinion alone was insufficient to support a verdict.

Evidence of the vaiue of the subject property is essential to a valid conviction

under 18 U.S.C. 2314. Proof must be offered that the property had a market value

of $5,000 either at the time of the theft or sometime after its receipt. Nall, supra at

1187. The absence of such evidence in the instant case requires a reversal because

of a failure of proof.

15

THE TRIAL COURT ERRED IN NOT REQUIRING A GOVERNMENT WITNESS TO DELIVER

NOTES WHICH HE USED TO REFRESH HIS MEMORY PRIOR TO TESTIFYING IN VIOLATION

OF FEDERAL RULE OF EVIDENCE 612.

ARGUMENT AND AUTHORITIES

On cross-examination Special Agent Webster acknowledged he "reviewed"

investigative notes prior to his testimony. Defense counsel moved that the notes

be produced for his inspection to aid in cross-examining the witness. The Government

objected to this motion on the theory that to do so would reveal confidential information

relating to the circumstances surrounding Frakes’ arrest. Although it is unclear

what the court's ruling was, apparently the motion to inspect the investigative notes

was denied.

The right to inspect a writing under Federal Rule of Evidence 612 depends

on two basic factors:

(1) the writing was used by the witnesses either

before or during trial to refresh the witness' memory,

and

(2) the witness has testified in open court.

An examination of the record reveals that both factors were satisfied because

Webster had testified and had "reviewed" his investigative notes prior to trial. The

only limitation to the production of material under Rule 612 pertains to that which is

not related to the subject matter of the witness' testimony. This was not the defense

raised by the Government to the use of this information. In fact the defense of

confidentiality, which was urged by the Assistant United States Attorney, is not

applicable to Rule 612. See generally, United States v. Smith, 521 F.2d 957, 969

(D.C. Cir. 1975).

The investigative report used by Agent Webster should also have been

made available to trial counsel for Petitioner under 18 U.S.C. 3500 (a) (b) if:

16

(1) they were prepared by the witness on the stand

and

(2) the witness had testified prior to the request.

Although the record does not affirmatively show that Agent Webster prepared the

the investigative notes, the unequivocal tenor of his testimony as well as the

colloquy between the trial judge and both lawyers was that Webster prepared the

notes.

As was true when discussing Rule 612 the only defense to the production

of the investigative notes is that they bear no relation to the subject matter of

Agent Webster's testimony. See 18 U.S.C. 3500(c). This was never a contention

of the government in urging the denial of the motion to produce. See generally,

United States v. Calabrese, 421 F.2d 108 (6th Cir. 1970), cert. denied 397 U.S.

1021; Roberson v. United States, 282 F.2d 648 (6th Cir. 1960), cert. denied

364 U.S. 879 (1960). Thus, any statement prepared by the witness that may be

relevant to a witness' cross-examination is to be produced. United States v.

Allsenberrie, 424 F.2d 1209, 1215 (7th Cir. 1970). At no time did the government

contend that the notes were not prepared by Agent Webster nor that they were

not relevant to his cross-examination. United States v. Graves, 428 F.2d 196,

199 (5th Cir. 1970), cert. denied 400 U.S. 960; United States v. Howard, 450 F.2d

792 (9th Cir. 1971). By not requiring the production of the investigative notes

Petitioner was not able to fully cross-examine Agent Webster thereby denying him

his fundamental rights of cross-examination and confrontation.

17

Wherefore premises considered writ of certiorari should be granted and

the decision of the lower court should be reversed.

CERTIFICATE OF SERVICE

Respectfully submitted,

Leth he

Kurt A. Philipps, Jr.

Attorney for Petitioner

1401 Dixie Highway

Covington, Kentucky 41011

606-292-5387

I hereby certify that a true and correct copy of the foregoing Petitioner's Brief

was mailec postage prepaid to George J. Long, United States Attorney, 211 U.S.

Courthouse Building, Louisville, KY 40202 on the 16th day of November, 1977.

Ky Md,

| a9 Philipps, Jr.

No. 76-2650

UNITED STATES COURT OF APPEALS

FOR The SIXTH CIRCUIT

UniTEp STATES OF AMERICA, ‘ ; i

_ PPEAL from

Plaintiff-Appellee,| “ United States District

Vv. Court for the West-

KENNETH Ray FRAKES ern District of Ken-

Defendant-Appellant. techy.

Decided and Filed October 18, 1977

Before: Pures, Chief Judge; Weick and Encet, Circuit

Judges.

Per Curntam. Defendant-appellant stands convicted by a

jury on two counts of interstate transportation of stolen goods

having a value of $5000 or more, in violation of 18 U.S.C.

§ 2314 (1970). We affirm.

The proofs at trial indicated that on September 15, 1975,

appellant acquired possession of a used John Deere tractor

from a Tennessee firm by passing a $16,500 check drawn on

an account with insufficient funds. According to a statement

given to the FBI by the appellant, the tractor was subsequently

transported across state lines into Arkansas.

On September 22, 1975, the appellant bought another tractor,

an International Harvester, from a firm in Mayfield, Kentucky.

The purchase was made with an $18,000 check, again drawn

on account with insufficient funds. This tractor was recovered

on September 25 from an auction company in Missouri, where

2 United States vy. Frakes No. 76-2650

the appellant had left it with instructions to sell it for $15,500

or $16,500.

_ With respect to both purchases, the circumstances proven

at trial established that the appellant intended to take posses-

sion of the tractors without paying for them.

Appellant raises a number of issues on appeal, although

we find only one to be sufficiently substantial to merit discus-

sion. Specifically, the appellant claims that § 2314, the Nation-

al Stolen Property Act, does not penalize the interstate trens-

portation of an object acquired in exchange for an insufficient

funds check.

The statute provides:

Whoever transports in interstate or foreign commerce

any goods, wares, merchandise, securities or money, of

the value of $5,000 or more, knowing the same to have

been stolen, converted or taken by fraud. . .

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

more than ten years, or both.

18 U.S.C. § 2314 (1970).

Similarly, the Dyer Act, 18 U.S.C. § 2312 (1970), states:

Whoever transports in interstate or foreign commerce

a motor vehicle or aircraft, knowing the same to have

been stolen, shall be fined not more than $5,000 or im-

prisoned not more than five years, or both.

While the precise issue of this case is a matter of first im-

pression, we conclude that the Supreme Court’s construction

of the Dyer Act is controlling. In United States v. Turley, 352

U.S. 407 (1957), the Court faced a split among the circuits

as to the meaning to be accorded the word “stolen” in the Dyer

Act. Three circuits were of the opinion that “stolen” meant

the acquisition of property by means which would be punish-

able at common law as larceny. Three other circuits inter-

preted “stolen” in a more generic way, not limiting the concept

No. 76-2650 United States v. rakes 3

to the crime of larceny. The Supreme Court adopted the latter

view, concluding that “‘[s]tolen’ as used in 18 U.S.C. § 2312

includes all felonious takings of motor vehicles with intent to

deprive the owner of the rights and benefits of ownership,

regardless of whether or not the theft constitutes common-law

larceny.” 352 U.S. at 417.

The Court further noted, in language which is especially

pertinent to the facts of this case:

CY [A]n automobile is no less “stolen” because it is rented,

transported interstate, and sold without the permission of

the owner (embezzlement). The same is true where an

automobile is purchased with a worthless check, trans-

ported interstate, and scld (false pretenses )."7

17 See Boone v. United States, 235 F_ 2d 939 (C. A. 4th Cir.

1956); Murphy v. United States, 206 F.2d 571 (C. A. 5th Cir.

1953); Ackerson v. United States, 185 F. 2d 485 (C. A. 8th Cir.

1950); Hite v. United States, 168 F. 2d 973 (C. A. 10th Cir. 1948).

In each of these cases the defendant obtained possession of a

car by passing a bad check, falsely representing that it would

pad oll

352 U.S. at 416 (emphasis added).

Relying on the authority of Turley, supra, then Circuit Judge

Stewart noted for our court:

The issue as to whether the goods were obtained by one

of the unlawful methods of acquisition referred to in

[the National Stolen Property Act] is not to be decided

upon the basis of technical common law definitions.

\ Bergman v. United States, 253 F. 2d 933, 935 (6th Cir. 1958).

‘We consequently decline appellant’s invitation to follow com-

mon law notions in construing the Act.

We accord the same meaning to the word “stolen” in the

National Stolen Property Act as in the Dyer Act. United States

v. McClain, 545 F. 2d 988, 994-95 (5th Cir. 1977); Lyda v.

United States, 279 F. 2d 461, 463-65 (5th Cir. 1960); see Tur-

ee

? a

\)

4 United States v. Frakes No. 76-2650

ley, supra, 352 U.S. at 412 & n. 9... We therefore hold that

‘ $2314 embraces the conduct of appellant in acquiring title

to the tractors by means of checks drawn on insufficient funds.?

We find support for our conclusion in the fact that the

National Stolen Property Act and the Dyer Act are part of

an overall legislative scheme designed to thwart the misuse

of interstate commerce. As the Fifth Circuit noted in Lyda,

supra, 279 F. 2d at 464: “

\en>- ar Tike National Stolen Property Act] is, of

course, to prohibit the use of interstate transportation

facilities for goods having certain unlawful qualities. This

reflects a congressional purpose to reach all ways by which

an owner is wrongfully deprived of the use or benefits of

the use of his property. It was one way to meet the

difficulties in legislative draftsmanship. The experience

with this Act, the Dyer Act, and others* bears witness that

“what has concerned codifiers of the larceny-type offense

is that gaps or crevices have separated particular crimes

of this general class and guilty men have escaped through

the breaches.” Morissette v. United States, 1952, 342

U.S. 246, at page 271, 72 S.Ct. 240, at page 254, 96 L.Ed.

288, at pages 304-305. Congress by the use of broad

terms was trying to make clear that if a person was

deprived of his property by unlawful means amounting

to a forcible taking or a taking without his permission, by

’ As support for its construction of “stolen” in the Dyer Act, Turley

cited wk @ roval two cases which gave a similarly broad readin

to the word “stolen” in the National Stolen Property Act: Unite

States v. Handler,.142 F. 2d 351, 353 (21 Cir. 1944), cert. denied 323

U.S. 741 (1945); Crabb v.Zerbdst, 99 F. 2d 562, 565 (5th Cir. 1939).

2 We thus need not decide whether the appellant's conduct falls

within the other methods of acquisition condemned by § 2314: “con-

verted or taken by fraud.” Lyda, supra, 279 F. 2a at 464-65; see

generally United States v. Vicars, 465 F. 2d 720 (6th Cir 1972).

3E.g., 18 U.S.C. §2316 (1970), (interstate transportation of stolen

cattle) construed, Cummings v. United States, 289 F. 2d 904 (10th

Cir.), cert. denied 368 U.S. 850 (1961). Cummings held that § 2316 con-

demned the interstate transportation of cattle. acquired with an

insufficient funds check.

No. 76-2650 United States v. Frakes 5

false pretense, by fraud, swindling, or by a conversion by

one rightfully in possession, the subsequent transportation

of such goods in interstate commerce was prohibited as

a crime.

See also Turley, supra, 352 U.S. at 413-17.

Affirmed.