Petition — Zazzara v. United States

Supreme Court, U. $

FILED

APR 20 978

IN THE

SUPREME COURT OF THE UNITED &r/Pfiifl RODAK, JR., CLERK

October Term, 1977 «+

No. @P=1506

VINCENT C. ZAZZARA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL E. STEWART

610 Newport Center Drive

Suite 1455

Newport Beach, CA 92660

(714) 644-9450

Attorney for Petitioner

Of Counsel:

WILLIAM H. EILERS

610 Newport Center Drive

Suite 1255

Newport Beach, CA 92660

(714) 759-0234

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

VINCENT C. ZAZZARA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL E. STEWART

610 Newport Center Drive

Suite 1455

Newport Beach, CA 92660

(714) 644-9450

Attorney for Petitioner

Of Counsel:

WILLIAM H. EILERS

610 Newport Center Drive

Suite 1255

Newport Beach, CA 92660

(714) 759-0234

TOPICAL INDEX

Table of Authorities ii

OPINION BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED FOR REVIEW 2

CONSTITUTIONAL PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 3

ARGUMENT q

CONCLUSION 25

EXHIBIT A OPINION affirming the

judgment of conviction

EXHIBIT B ORDER denying petition

for rehearing

——as oe

Cases Page

TABLE OF AUTHORITIES |

U.S. v. ANDERSON

Cases Page 514 F.2d 583 (1975)

7th Cir. 18, 20

ASHE v. SWENSON

: U.S. v. NORRIS

EX PARTE BAIN U.S. v. SMOLAR

121 u.S. 1, 13, 7 S.Ct

: . ety 7 F.2d 13 (1970) lst Cir. 16

781 (1882) 9 ,12, 14, 15 33 (

CF. CLYATT v. U.S. U.S. v. STIRONE

361 U.S. 212, 80 S.Ct. 270

197 U.S. 207 14 =.

CONNOR v. PICARD

434 F.2d 673 (1970) 14 U.S. v. WILLIAMS

412 F.2d 625 (1969)

14

DOWNUM v. U.S. 3rd. Cir.

372 U.S. 734, 83 S.Ct, 1033 WINGATE v. WAINRIGHT

(1963) 20 464 F.2d 209 (1972) -

. 2 '

HADDAD v. U.S. oem Cas.

349 F.2d 511, 514 (cert.

den.) 382 U.S. 896 18 .

Constitution

HOWARD v. DAGGETT

526 F.2d 1388 (1975) 9th Cir. U.S. Constitution, 3

9, 15, 16 Fifth Amendment

JOHNSON v. ZERBST

304 U.S. 458 20

KETNER v. U.S.

195 U.S. 100 21

MORGAN v. DEVINE

37 U.S. 632 (1915) 23

RUSSELL v. U.S.

369 U.S. 749, 82 S.Ct. 1038 iii

(1962) 13, 14

ii

a a eee ennneerawmE

“ @

: IN THE

SUPREME COURT OF THE UNITED STATES

| October Tern,

NO.

VINCENT C. ZAZZARA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The Petitioner, Vincent C. Zazzara,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Ninth Circuit, entered March 3, 1978, and

the Order Denying the Petition for Re-

hearing entered on March 31, 1978.

OPINION BELOW

The Court of Appeals entered its

opinion on March 3, 1978. Thereafter, a

Petition for Rehearing was ordered denied.

Said Order was entered on March 3l, 1978.

————eeeeeeeee aaa... L808

A copy of the opinion, affirming the judgment

of conviction is attached as Appendix A and

a copy of the Order Denying the Petition for

Rehearing is attached as Appendix B.

JURISDICTION

Jurisdiction of this Court is invoked

under Title 28, United States Code, Section

1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Did the trial court below

impermissably amend the Grand Jury

Indictment, thereby depriving it of fur-

ther jurisdiction over Petitioner?

2. Was the Petitioner placed on

trial twice for the same offense, thereby

violating his right not to be subject to

being placed in jeopardy for the same

offense a second time?

i nr. oo

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment 5 to the Constitution of

the United States:

"No person shall be held to answer

for a capital, or otherwise,

infamous crime, unless on a pre-

sentment or indictment of a Grand

Jury, . . .? nor shall any person

be subject for the same offense

to be twice put in jeopardy of

life or limb; .. . nor be

deprived, liberty or property,

without due process of law;.. .

STATEMENT OF THE CASE

The Petitioner was charged on two

separate occasions with various violations

of 18 U.S.C. 1014 (false statements in

loan applications to a federally insured

bank). On May 10 of 1976, the first three-

count indictment was filed with the court

below charging the Petitioner with making a

false statement to three separate federally

insured banks. Count One alleged a

violation occurring on August 15, 1973, to

Crocker National Bank. Count Two alleged

a violation occurring on August 29, 1973.

3.

Count Three alleged a violation occurring

on May 29, 1974. On May 13, 1976, a jury

was duly impaneled and sworn with trial

commencing on July 15, 1976. Thereafter,

the indictment was dismissed upon the

motion of the Government in the interest

of justice. This was no. CR 74-677.

On February 28, 1977, No. 77-260, a

four count indictment was returned against

Petitioner in the court below. This was

thereafter superceded by virtually an

identical indictment numbered €R 77-260(A)-

(DW) (hereinafter referred to as the "last

indictment".).

Count One of both the original and

the last indictment charged essentially the

same offense. Count Three of the last

indictment alleged an offense against the

same bank set forth in Count Two of the

Original indictment, but at a somewhat

later date. Count Four of the last indict-

ment alleged the same offenses set forth in

Count Three of the original indictment. The

only purported new matter set forth in the

last indictment was contained in Count Two

which alleged a violation occurring on or

about November 26, 1973, involving a Bank

4.

of America.

Separate Motions to Dismiss on the

grounds of prejudicial pre-trial delay and

prior jeopardy were filed by Petitioner.

In his affidavit in support of his Motion

to Dismiss because of the pre-trial delay,

the Petitioner alleged prejudice because

of:

1) The passage of time in and of

itself (a period of almost 4 years as set

forth in the last indictment until the

time of trial in March and April of 1977);

and

2) The death of John H. Kirk, his

personal and business attorney during the

times in question whom Petitioner alleged

would have been a most important witness

with respect to the transactions as set

forth in the last indictment.

The court held an evidentiary hearing

on both issues at which the Grand Jury

testimony of Mr. Kirk was introduced

into evidence, and Petitioner himself

testified as to the necessity of having

Mr. Kirk and various documents he believed

to be in his possession at his trial. At

the conclusion thereof, the court denied

5.

7 eimeacmiatieaaiaieatin a

the Motion to Dismiss on th: grounds of

prejudicial delay on the g.vounds that the

delay had not worked "legally to the

prejudice of this defendant, adding,

parenthetically, however:

"I don't think that any of

the acts of the government in this

case merit any commendations; they

should have been a whole lot speed-

ier about bringing this case to a

state of readiness."

Petitioner's written Motion to Dismiss

the last indictment on the grounds of prior

jeopardy were aimed at Counts One, Three

and Four. No formal objection was filed

with respect to Count Two as that count

apparently, on its face, alleged a new

and different matter than that set forth in

the previous three counts of the original

indictment.

During the course of argument on the

double jeopardy issue, counsel for the gov-

ernment conceded that it knew, or should

have been charged with knowledge, of all

of the facts forming the basis of the

allegations set forth in the last indict-

ment. At the conclusion of these arguments,

6.

the court dismissed Counts One and Four but

would not dismiss Count Two because it

appeared to be a new and separate trans~

action and ruled that Count Three set forth

a different date and what seemed to be a

different false representation than that

alleged in the original indictment. While

the Petitioner's Motion to Dismiss did not

contain any specific reference to Count

Two, it was in fact discussed during the

course of argument and the court in its

final ruling stated as follows:

"I decline to dismiss Counts 2

or 3 because 2 appears to be for

the new transaction and 3 appears

to be a totally new representation

made in connection with the sought-

after extension of the loan."

Trial commenced on April 4, 1977.

Shortly thereafter, government counsel

moved to dismiss Count Three and further

moved to amend the last indictment by

striking the words "dated April 30, 1973"

in Count Two of the indictment as surplusage.

Counsel for Petitioner objected strenuously

on the grounds that it was not a mere

ve

correction of a clerical error but was in

fact a change of substance inasmuch as there

were two written financial statements, one

dated April 30, 1973, and one dated

December 30, 1972, furnished to counsel by

the government in response to the court's

discovery order. The motion was granted,

after considerable argument and over the

strenuous objection of petitioner's

counsel on the grounds that the amendment

in fact was more than a “mere correcting"

of a clerical error, and in fact permitted

the substitution of a new evidentiary

document in place of the one set forth in

the indictment, without a showing that the

December 30, 1972, statement had ever been

presented or considered by the Grand Jury.

During the course of the trial, the

government introduced, over objection,

evidence of the same two transactions which

were contained in the original indictment

and which were dismissed on prior jeopardy

grounds.

REASONS WHY THE COURT SHOULD

GRANT THE WRIT:

THE RULE AGAINST "NO AMENDMENT” OF A

GRAND JURY INDICTMENT STATED IN EX PARTE

BAIN* HAS BEEN SO ERODED BY EXCEPTIONS AND

DISTINCTIONS IN THE COURTS BELOW THAT IT

NO LONGER EXISTS. IT IS INCUMBENT UPON

THIS COURT IN THE EXERCISE OF ITS SUPER-

VISORY POWERS TO RESTATE AND CLARIFY THE

RULE AS TO WHAT AMENDMENTS ARE CONSTITU-

TIONALLY PERMISSIBLE FOR THE PROPER

GUIDANCE OF THE COURTS BELOW. FURTHERMORE,

THE HOLDING OF THE COURT BELOW IN THE CASE

AT BAR IS IN DIRECT CONFLICT WITH ITS

HOLDING IN HOWARD V. DAGGETT, INFRA.

ARGUMENT

The Petitioner was charged in the

last indictment with submitting a false

financial statement bearing the date of

April 30, 1973. Copies of two separate

written financial statements had been

supplied to counsel for Petitioner, one

dated April 30, 1973, and one dated

*121 U.S. 1, 13, 7 S.Ct. 781 (1832)

tins Dee an, Me ws ba ‘ ‘

bee x wD Wehr ste t aed —P eg , ‘ 7

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| ——

December 30, 1972. During the course of

argument on the motion to strike the date as

to the April 30 statement*, counsel for

Petitioner stated to the court that he had

not examined or considered the December

30, 1972 statement prior to the time of

trial. The court of appeals in its judgment

affirming Petitioner's conviction (Ap-

pendix A) held that the words in question

were "mere surplusage" and could be stricken

without violating the Petitioner's constitu-

tional rights guaranteed under Amendment 5

to the United States Constitution to be

brought to trial on a “presentment or

indictment of the Grand Jury." The label

“surplusage" or "mere clerical error"

becomes, of course, the kiss of death to

the Petitioner's claim that the amendment

of the court below was impermissible under

the Fifth Amendment.

In the case at bar, there were two

Separate and distinct written financial

Statements. There is no way for this court,

or for any court, to know which of these

*VWhi ;

ge the court did not strike the date from

the indictment in a formal sense, it was

omitted when the charge in County 2 was read

to the jur } i

ptm jury, just as in Howard v. Daggett,

10.

documents was in fact presented to the

Grand Jury and whether in fact the Grand

Jury either saw or considered the 1972

statement. Assume hypothetically Petitioner

had been charged with uttering a forged

check dated April 30, 1973, and at the

time of the trial, the date of the check

was changed to December 30, 1972. This

could hardly be characterized as a mere

striking of "“surplusage". This begs the

question. In truth and in fact, under

the circumstances of the case at bar, and

in the hypothesis given, the changing of

the date and the substitution of one docu-

ment for another creates a totally separate

and different crime and one which certainly

is not the indictment of the Grand Jury.

The court of appeals went on to hold

that even though the change may have been

impermissible, there was sufficient

evidence under paragraph A of Count Two,

standing alone, to convict the Petitioner.

While this may or may not be true, it is

respectfully submitted that this invades

the province of the jury. There is no way

of telling from the jury's verdict what

the jury's findings were with respect to

Ai.

either paragraphs A or B, which contained

the stricken date. It may well be the

jury found there was insufficient evidence

to convict under paragraph A, but con-

victed on the document substituted in

paragraph B. This court, in Ex Parte Bain,

Supra, stated what has generally been con-

sidered to be a "no amendment rule". The

court therein, at page 13, stated as

follows:

"We have no difficulty in

holding that the indictment

on which he was tried was no

indictment of a grand jury.

The decisions which we already

referred to, as well as sound

principle, require us to hold

that after the indictment was

changed, it was no longer the

indictment of the grand jury

which presented it. Any

other doctrine would place the

rights of the citizen, which

were intended to be protected

by the constitutional pro-

visions at the mercy or control

of the court or prosecuting

12.

attorney; for, if it becomes

once held that changes can be

made by the consent or orGer of

the court in the body of the

indictment as presented by the

grand jury, and the prisoner can

be called upon to answer the

indictment as thus changed, the

restriction which the constitu-

tion places upon the power of the

court, in regard to the prerequisite

of an indictment, in reality no

longer exists." (emphasis added)

The rule laid down in Ex Parte Bain,

supra, was cited with approval in U.S. v.

Norris, 281 U.S. 619; U.S. v. Stirone,

361 U.S. 212, 80 S.Ct. 270; and Russell v.

U.S., 369 U.S. 749, 82 S.Ct. 1038 (1962).

In the Stirone Case, Supra, the court said

as follows at page 217:

"The Bain case, which has never

been disapproved, stands for the

rule that a court cannot permit a

defendant to be tried on charges

that are not made in the indictment

13.

against him. (citing cases) Yet

the court did permit that in this

case." Cf. Clyatt v. U.S., 197 U.S.

207.

In the Stirone case, Supra, this

court reversed the guilty verdict of the

court below holding that the introduction

into evidence of certain matters not alleged

in the indictment was "neither trivial, use-

less nor inoculous." (page 217)

Again, in Russell v. U.S., Supra, this

court cited the same provisions from Ex

Parte Bain, Supra, as are set forth above,

quoting with approval from U.S. v. Stirone,

Supra.

U.S. v. Williams, 412 F.2d 625 (1969)

3rd Cir. was a case in which the defendant

consented to amendment of the indictment and

thereafter plead guilty. The court held

"an amendment of substance to the body of an

indictment violates the Fifth Amendment even

if the accused agrees that the facts stipu-

lated should have the same effect as if set

out in the indictment itself."(page 627)

Connor v. Picard, 434 F.2d 673 (1970)

3rd Cir. involved a habeas corpus proceeding

against a state court wherein the defendant's

14.

— ‘

name was substituted in the indictment was

the person whom the grand jury had charged

as a "John Doe". The court of appeals, again

citing Ex Parte Bain, Supra, held that the

state's practice of substituting the

defendant's name in place of a John Doe

name by the Grand Jury violated the

defendant's Fifth Amendment rights inasmuch

as there was no showing was to what

evidence, if any, had been considered by

the Grand Jury as against the particular

defendant ultimately charged.

Howard v. Daggett, 526 F.2d 1388, (1975)

9th Cir. is almost on all fours with the case

at bar. Defendant was charged with violating

the Mann Act. Count Three of the indictment

specifically charged defendant with traveling

in interstate commerce to promote prostitu-

tion with two specifically named women. The

court's instructions to the jury as to the

essential elements they had to find in order

to convict the defendant failed to include

the names of the two women that were named

in the indictment. In response to the jury's

request for further instructions as to which

was controlling, the indictment or the

instructions, the court instructed the jury

15.

as follows:

"If you find language or wording

in the indictment that is not

contained in the statement of

essential elements contained in

instruction number 28, you may

consider the additional language

in the indictment mere surplusage

and the same may be disregarded

by you.” (emphasis added)

In the case at bar, a specifically

named document was withheld from the jury as

"mere surplusage", just as in Howard, Supra.

The court specifically held, citing from

Stirone, Supra, at page 1390:

"The supplemental instruction

constituted an impermissible

amendment to the indictment that

‘destroyed the defendant's sub-

stantial right to be tried only

on charges presented in an

indictment returned by a grand

jury'". See also, U.S. v. Smolar,

557 F.2d 13 (1970) Ist Cir.

It is difficult, if not impossible, to

see any distinction between a specifically

described person and a specifically described

document.

16.

Decisions approving the trial courts’

striking “surplusage", or correcting "cler-

What is “form"

The labels alone

ical erros" are numerous.

and what is "substance"?

are meaningless and give no guide as to the

issues involved.

Petitioner contends that the substitu-

tion in evidence of a different document than

that alleged in the Grand Jury indictment is

more than the withdrawal of "surplusage”",

and in truth and in fact, is the allegation

of a new and different crime, and therefore,

not the charge or presentment of the Grand

Jury.

It is respectfully submitted that the

constitutional right invoked by the Petitioner

and the erosion of that right through the

various exceptions and modifications engraf-

ted on the rule by the circuit courts below,

warrants the examination of the question by

this court in order that Petitioner's

constitutional right may be given proper

protection.

17.

Ee

ADDITIONAL REASONS WHY THE COURT

SHOULD GRANT THE WRIT:

AN ALLEGED "WAIVER" BY A ” .IMINAL

DEFENDANT OF AN IMPORTANT AND FUNDAMENTAL

CONSTITUTIONAL RIGHT SHOULD NOT BE LIKELY

INVOKED BY AN APPELLATE COURT IN PASSING

ON SUCH A CLAIM.

FURTHERMORE, THE RULING OF THE NINTH

CIRCUIT COURT OF APPEALS IS IN DIRECT

CONFLICT WITH THE RULING OF THE 7TH CIRCUIT

COURT OF APPEALS IN U.S. V. ANDERSON, INFRA.

ARGUMENT

The court below, in its judgment, re-

fused to consider the defendant's claim of

"double jeopardy" on the grounds that the

defendant had waived the defense, expressly

holding:

"We will not now consider the

question on appeal," citing Haddad

v. United States, 349 F.2d 51l, 514

(cert. den.) 382 U.S. 896 (Appendix

A).

It is true that the Petitioner did not

formally raise the prior jeopardy objection

before the trial court in his written motion

because, on its face, the last indictment

seemed to prevent at least one new fact

18.

situation not alleged in the original

indictment. For the first time, during

the course of the motion to suppress the

other three counts, counsel for Petitioner

learned from the U.S. Attorney that the

government "knew or should have known of

the facts which formed the basis of Count

Two of the indictment." Furthermore, as

appears in the statement of facts, the

court, in passing on the Petitioner's

motion to dismiss because of prior jeopardy,

expressly held that Count Two presented

new and different facts from that contained

in the original indictment. It is clear,

therefore, that while Petitioner's objection

was not contained in his written motion,

it was raised during the course of the

argument on the motion, and the court

expressly ruled thereon.

At Petitioner's trial, the government

introduced evidence as to all three counts

of the indictment that had been dismissed,

including two that the court had dismissed

on the grounds of prior jeopardy urged by

Petitioner. The evidence as to these

counts came in under the Doctrine of "Prior

19.

Similar Acts."

This court, in Downum v. United States,

372 U.S. 734, 83 S.Ct. 1033 (1963), held

that jeopardy attaches the moment that the

jury is impaneled and sworn even though

no witnesses were called against the

defendant.

In U.S. v. Anderson, 514 F.2d 583

(1975) 7th Cir., this issue was precisely

involved. Here the defendant had plead

guilty to a lesser included offense which

was thereafter vacated pursuant to a 2255

petition, the defendant permitted to

withdraw his guilty plea, and was there-

after tried on the greater offense. No

formal double jeopardy claim was presented

at trial. The government argued that the

Petitioner had "waived" his claim thereon,

precisely the issue presented here.

The court, at page 586, stated as

follows:

"A finding of waiver requires

an ‘intentional relinauishment or

abandonment of a known right or

privilege'.

304 U.S. 458. We should par-

ticularly scrutinize the claim of

Johnson v. Zerbst,

20.

poet —_

waiver when it relates to a right

as fundamental as that embodied in

a constitutional protection against

double jeopardy." (Ketner v. U.S.,

195 U.S. 100.)

"in this case we do not find ‘in-

tentional relinquishment’ of a

‘known right'. A double jeopardy

defense is normally not the type of

claim that would be foregone for some

strategic reason. Indeed, the ques-

tion of a possible double jeopardy

problem was at least mentioned

before the district court." (emphasis

added)

The court went on to hold that the lesser

included offense to which the defendant had

plead guilty was included in the offense

charged at the subsequent trial and that the

plea of guilty to the prior offense barred

prosecution on the greater.

Although this point was neither raised

on Petitioner's appeal nor argued, a fur-

ther violation of the Petitioner's

constitutionally protected right not to be

placed twice in jeopardy on the same charge

resulted from the government's use of the

21.

Oe

two transactions contained in Count One

and Count Four of the last indictment

which was identical to Count One and

Count Three of the original indictment.

This precise issue was raised in a

writ of habeas corpus proceeding in

Wingate v. Wainwright, 464 F.2d 209 (1972)

5th Cir., where the Petitioner had been

tried in a state court on a robbery

charge. During the course of the trial,

the prosecutor introduced evidence of two

prior robberies on which the Petitioner

had been tried and acquitted. References

were made to these prior crimes as proof

of intent in both his opening and closing

statements, as in the case at bar. The

court made an exhaustive analysis of the

"collateral estoppel" rul in civil cases

as applied to criminal cases, where the

Petitioner had been acquitted of the

"prior similar acts" and concluded they

were no more admissible at a second trial

On another charge to prove a "merely

evidentiary fact" than they would be to

prove an “ultimate fact."

Concededly, in the case at bar,

there was no finding of guilt or innocence

22.

by the trier of fact at the first trial.

Nonetheless, the government was at liberty

to prosecute Petitioner on these two

counts and should not be permitted to re-

prosecute under the guise of introducing

these transactions as evidentiary

matter.

In Morgan v. Devine, 37 U.S. 632

(1915), this court expressly held that a

defendant in a criminal case has been placed

in jeopardy if he could have been convicted

of an offense charged in thesecond pro-

ceeding. The Wingate court in this regard

refers to a decision of this court in Ashe

v. Swenson, 397 U.S. 436, which holds that

the collateral estoppel rule prohibits a

relitigation in any future lawsuit between

the same parties where the same acts were

determined at a previous trial. (page 443)

At page 213, the court goes on to

hold:

"We do not perceive any meaning-

ful difference in the quality of

‘jeopardy' to which a defendant

is again subjected when the state

attempts to prove his guilt by

relitigating a settled fact issue

23.

a a I nll

which depends upon whether the

relitigated issue is one of

‘ultimate fact' or merely ‘an

evidentiary fact' in the second

prosecution. In both instances,

the state is attempting to prove

a defendant guilty of an offense

other than the one of which he

was acquitted. In both instances,

the relitigated proof is offered

to prove some element of the

second offense. In both instances,

the defendant is forced to defend

against against charges or factual

allegations which he overcame in

the earlier trial."

As conceded above, Petitioner was not

acquitted at the previous trial inasmuch as

the government chose not to present any

evidence against him. However, at the

second trial, the evidence of the "prior

Similar acts" was a very substantial factor

in the government's evidentiary case

against Petitioner. To permit the govern-

ment to do indirectly what it could not do

directly would make a mockery of the

constitutional right not to be put in

24.

jeopardy twice for the same offense.

CONCLUSION

It is respectfully submitted that

because of the serious constitutional

issues presented, and because of the

conflict in the decisions below, both

within and between the Circuits as set

forth above, that the Writ of Certiorari

should issue.

Respectfully submitted,

ual 6 fturnat

CARL E. STEWART, ESQ.

Attorney for Petitioner

25.

—”

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED

MAR 3 1978

Emil E. Melfi, Jr.

Clerk, U.S. Court

Of Appeals

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

VINCENT C. ZAZZARA, aka

'C. Vincent, and Zaz Vincenzo,

; Defendant-Appellant.

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MEMORANDUM No. 77-2140

Appeal from the United States District

Court for the Central District of

California

_ BEFORE: BROWNING, GOODWIN and KENNEDY,

Circuit Judges.

. Finding no merit in any of the four

grounds for this appeal, we affirm the

' conviction of Vincent C. Zazzara for mak-

ing statements to a federally insured

bank in connection with a loan applica-

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

Appellant claims he was denied due

_ process of law because of pre-indictment

' delay. To prevail, appellant must show

that actual prejudice resulted from the

delay, United States v. Lovasco, 431 U.S.

| “

783, 97 S.Ct. 2044 (1977); United States

v. Mays, 549 F.2d 670, 677 (9th Cir. 1977).

And even if actual prejudice is demon-

strated, the court must consider the rea-

sons for the delay before concluding that

there was a due process violation. Appel-

lant did show that his accountant died

during the period of the alleged delay,

but he has not shown that the accountant's

testimony would have been of any assis-

tance to the defense case. Indeed, all

indications in the record are that the

accountant had no information that would

be helpful to the defense. Cf. United

States v. Wilson, 492 F.2d 1345 (3d Cir.

1973), rev'd on other grounds, 420 U.S.

332 (1975) (defendant prejudiced by delay

because witness who was vital to his de-

fense became unavailable.)

Consequently,

appellant has failed to show that he was

prejudiced by the alleged delay. Moreover,

there is no showing that the government

delayed prosecution for any impermissible

reason. There has been no due process

violation here.

Appellant's second contention is that

his conviction violates the constitutional

guarantee against double jeopardy because

A-2.

he was tried on a charge which had been

the subject of an earlier indictment that

had been dismissed on his moticn. The

appellant failed to raise the defense of

double jeopardy in the court below, and

the defense was therefore waived; we will

not now consider the question on appeal.

Fed. R. Crim. P. 12; Haddad v. United

States 349,F.2d 511, 514 (9th Cir.),

cert. denied, 382 U.S. 896 (1965).

Third, appellant argues that by strik-

ing from the indictment the date of an

allegedly false financial statement the

trial court made an impermissible amend-

ment of the indictment. In Ex parte Bain,

121 U.S. 1 (1887), the Supreme Court held

that an amendment to an indictment vio-

lates an accused's fifth amendment right

to be tried only after presentment or

indictment by a grand jury, and renders

a conviction based thereon void. Over

time, numerous exceptions and limitations

have been grafted onto this rule. It is

clear that changes which are merely a

matter of form, which simply correct typo-

graphical errors, or which delete sur-

plusage are permissible. See United States

A-3.

EE

v. Dawson, 516 F.2d 796, 801-02 (9th Cir.),

cert. denied, 423 U.S. 855 (1975); United

States v. Edwards, 465 F.2d 943, 950 (9th

Cir. 1972).

In this case the accused was charged

in paragraph (a) of count 2 with making

misrepresentations to the Bank of America

by submitting an individual financial

statement dated April 30, 1973. Para-

graph (b) of count 2 charged appellant

with misrepresentations by submitting a

company financial statement "dated April

30, 1973." In fact the company statement

was dated in December, 1372, and the

court amended the indictment by striking

the reference to a date in paragraph (b).

We believe the indictment described the

two statements with sufficient particula-

rity and that the erroneous date of the

company statement recited in the original

indictment was surplusage which could be

stricken without violating any of appel-

lant's constitutional rights. See United

States v. Edwards, supra (deletion of er-

roneous location considered surplusage) ;

United States v. Buble, 440 F.2d 405

(9th Cir.), cert. denied, 404 U.S. 828

A-4.

(1971) (change in year of tax returns

deemed constitutional). And in any event

there was sufficient evidence to convict

the defendant under paragraph (a) of the

indictment standing alone.

Fourth, appellant argues that the evi-

dence was insufficient to sustain the

conviction. Viewing the evidence in the

light most favorable to the government as

the prevailing party, Glasser v. United

States, 315 U.S. 60, 80 (1942), we find

the evidence clearly sufficient to sus-

tain the instant conviction.

Affirmed.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 31 1973

] EMIL E. MELFI, JR.

: Clerk, U.S. Court of Appeals

. UNITED STATES OF AMERICA,

> Plaintiff-Appellee,

v.

VINCENT C. ZAZZARA, aka

C. Vincent, and Zaz Vincenzo,

Defendant-Appellant.

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Appeal from the United States District

Court for the Central District of

California

BEFORE: BROWNING, GOODWIN and KENNEDY,

Circuit Judges.

The petition for rehearing is DENIED.

EXHIBIT B