Petition — Haskin v. United States

ae

Supreme Court, U. S,

FILED

JUN 26 1978

Supreme Couri of the Unite sptates - an

October Term, 1977

ae 1830

JAMES HASKIN,

Petitioner.

VS.

UNITED STATES OF AMERICA.

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD M. RE, ESQ.

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

| Telephone - (213) 553-8698

Attorney for Petitioner

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

Ce cee

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2 i Pete. «cer

i

TOPICAL INDEX

Petitioner, James Haskin, prays for

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nN N N

EPO TS Pee eT Ee

Constitutional Provisions and

Se Ns os sco Soi Oaks EERE Co oi dx 3

Seatemment Of Che Case... css on oc tbs owidn wes 0% 4

Reasons for Granting AWrit ................ 7

I‘ The various circuit courts of appeals,

and the various panels within the Ninth

Circuit Court of Appeals, are in com-

plete disarray on the issue of the appro-

priate standard to be applied to a question

of whether a criminal defendant has receiv-

ed the effective assistance of counsel ...... 7

Il The provisions of Title 26, United States

Code § 7203 cannot rationally or legally

be applied to a corporate officer solely

based upon his status as such an officer .... 10

Ill A conflict in the circuit courts of appeals

exists with regard to the standard to be

applied to prosecutorial assertions of

personal belief and argument to the jury

based upon matters not inevidence ...... 11

IV The Court of Appeals was incorrect in

formulating an ad hoc exception to the

hearsay rule based upon an after-the-fact

determination of “reliability.” .......... 13

a aes

ii

TOPICAL INDEX

Page

SD whvewe setbredveuccdtoetaeemen 15

TABLE OF AUTHORITIES CITED

Cases

Anderson v. United States,

406 F.2d 1057 (9th Cir. 1969) .......... 12

Berger v. United States, 395 U.S.78 .......... 12, 13

Cooper v. Fitzharris, 551 F.2d 1162

I ak oo el 8

de Kaplany v. Enomoto, 540 F.2d 975

Gra Ges Cree TU Cera. SE 8

Devine v. United States, 403 F.2d 93

Cree Ga Coane SCARRED 13

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 7

Gillihan v. Rodriguez, 551 F.2d 1182

GORGE By re hs OE Gee oS 7

Glasser v. United States, 315 U.S.60 .......... 9,10

Gradsky v. United States, 373 F.2d 706

Gun Gis, CRS) CCP Wi 13

Greenberg v. United States, 280 F.2d 472

ei Sn a aR a 12, 13

Harris v. United States, 402 F.2d 656

Ge, Ce. FRG UI EA PR i as il 13

iii

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Newsom v. United States, 431 F.2d 742

CSG ADIED civ cccccccccccscvcces 11

Orebo v. United States, 292 F.2d 747

(9th Cir, 1961)... ee eee eee eee ners 12

Patriarca v. United States, 402 F.2d 314

(let Cir. 1968) 2... ccc ccc ccc ccccesens 12

Smith v. United States, 353 F.2d 838

(D.C. Cir. 1965) .... ccc cceccvecccee 15

United States v. Easter, 539 F.2d 663 (8th Cir. 1976)

United States Ex Rel. Williams v. Twomey,

510 F.2d 635 (7th Cir. 1975) .......,...-.. 7

United States v. Leach, 429 F.2d 956

Ge BGT cn cccencveceveescecess 13

United States v. Madrid Ramirez,

535 F.2d 125 (ist Cir. 1976) ............ 7

United States v. Spanglet, 258 F.2d 338

>) 8 A). rns eee 13

Whitely v. Warden, 401 U.S. 560(1971) ........ 15

United States Constitution

i a ces ech oven egesaness 2,3

Statutes (United States)

Title 26, United States Code

| Pee CTE TEP LL. 11

— ——— ew —<—- -

iv

TABLE OF AUTHORITIES CITED

Statutes (United States) Page

Title 26, United States Code (cont’d)

De vetbeds bedede dd. eee 2, 3, 4, 10, 11, 14

DOE > cvadwtecadwbacese debi 4,11

S7OUD ....0065..3 NS DSR ERS ee bee 4, 10

97908 <uss i: nad ccukicaeetiees ene aT

Title 28, United States Code

OS SEPUD 0 vcs cdcvetiuttaciekleeeek 2

Federal Rules on Appeal

Balle 2p oS. cts ids fPOR AA E cee 2

Federal Rules of Criminal Procedure

Pane FF. 6. ss'vansvenncdctacttei fe 15

PND OS: 69. o.e-s-eineiuiiés oe ee bee 15

Federal Rules of Evidence

ot En erm mee 3, 14, 15

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

JAMES HASKIN,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To: The United States Supreme Court, October Term,

1977:

The petitioner, James Haskin, prays that a Writ of

Certiorari issue to review the judgment and order of the

United States Court of Appeals for the Ninth Circuit,

filed March 29, 1978, affirming the judgment of the United

States District Court for the Central District of California,

which found the petitioner guilty on three misdemeanor

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counts of violation of Title 26 U.S.C. § 7203.

OPINION BELOW

The memorandum opinion of the United States Court

of Appeals for the Ninth Circuit was filed March 29, 1978.

A copy of that memorandum opinion appears in the appen-

dix hereto as Appendix “A” (Appendix pp. | - 7). No

opinion was rendered by the United States District Court

for the Central District of California.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on March 29, 1978, affirming the peti-

tioner’s conviction on three counts of violating Title 26

U.S.C. § 7203. A copy of the judgment, in letter form,

obtained from the Office of the Clerk, United States Court

of Appeals for the Ninth Circuit, appears in the appendix

as Appendix “B” (Appendix p. 8). A timely petition for

rehearing and suggestion for rehearing en banc was denied

by order filed May 25, 1978. A copy of that order appears

in the appendix hereto as Appendix “C” (Appendix p. 9).

The Court’s jurisdiction is invoked pursuant to Title 28

U.S.C. § 1254(1) and Rule 22(2).

QUESTIONS PRESENTED

1. What standard must be utilized under the Sixth

Amendment to judge the competency of the assistance of

counsel rendered to a criminal defendant?

ul

2. Whether a corporate officer may be criminally

liable for failure to file a corporate income tax return

under 26 U.S.C. § 7203 based solely upon his status as

such corporate officer?

3. What is the appropriate standard to be applied

in a federal criminal case to determine whether reversible

error exists in a situation in which a government prosecu-

tor argues to the jury based upon his personal belief and

upon matters outside the record?

4. Whether the requirements of Federal Rules of

Evidence, Rule 803(10), concerning the absence of a public

record, and the requirements of the Sixth Amendment right

to confrontation of witnesses, are satisfied through an appel-

late finding of “reliability” but without any opportunity to

cross-examine the ultimate government source of the hear-

say information?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Amendment VI to the United States Constitution

provides in part:

“In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted

with the witnesses against him; . . . and to

have the assistance of counsel for his defense.”

Pertinent portions of the following statutory pro-

vions appear in Appendix “D” (Appendix pp. 10 and 11).

26 United States Code § 7203;

= =

26 United States Code § 7215;

26 United States Code § 7343.

STATEMENT OF THE CASE

The petitioner was charged before the United States

District Court for the Central District of California in a

three-count indictment filed March 14, 1977. Each count

charged a violation of Title 26 U.S.C. § 7203, a misdemean-

or. Counts I, II and III contained identical language, charg-

ing the petitioner with the failure to file a corporate income

tax return for the Ecktagraphics Corporation on or before

March 15, 1971, 1972, and 1973, respectively. Following

trial by jury, a judgment of conviction on each of the three

counts was entered on June 7, 1977. The petitioner was

sentenced consecutively on each count, receiving the maxi

mum one-year confinement on Counts I and II, together

with a $10,000 fine on each count, and probation as to

Count III, together with a $10,000 fine. The petitioner's

sentence, therefore, consists of a period of confinement

for two years and fines totaling $30,000.

A timely appeal was taken to the United States Court

of Appeals for the Ninth Circuit, which court, on March 29,

1978, entered its judgment affirming the conviction on each

count. A timely petition for rehearing was denied by the

court pursuant to order entered May 25, 1978.

The facts produced before the District Court demon-

strate that the petitioner, during the relevant years, was

the president of Ecktagraphics Corporation, a Nevada corp-

oration, with its principal place of business in Los Angeles.

Ecktagraphics, which had previously been called Intergraphics,

-_—_

had filed a 1968 fiscal year return. The evidence demon-

strated that Haskin was responsible for hiring a C.P.A. in

order to get the books and records of the corporation in

order. The accountant, however, dealt exclusively with

one Jerald Lynn, and discussed the tax situation with

Lynn. These matters were not discussed with the petitioner.

Evidence was introduced with regard to the petitioner’s

powers as president, including his ability, along with others,

to sign checks and hire employees.

The defense consisted primarily of demonstrating that

Lynn was in charge of the day-to-day business activities of

the corporation, and that the petitioner did not involve him-

self in this portion of the corporate activity. It was establish-

ed, therefore, that Lynn set up a computer system to keep

track of the finances of the corporation, and that only Lynn

and one of his subordinates utilized the computer. Lynn

was eventually fired from the corporation, and at that time

it was discovered that various employment tax checks, print-

ed by the computer, had not been forwarded to the govern-

ment and that other checks, representing payments to

corporate creditors, had similarly not been paid but had been

retained in Lynn’s desk drawer.

During the course of both the government’s and the

defense’s presentation, witnesses, while being questioned by

the government representative, testified largely without

defense objection that Haskin was purportedly “skimming”

from the corporation. The only objection interposed by

defense counsel was to the effect that the question was

“leading” and “assumed a fact not in evidence.” The only

evidence which purported to establish such skimming was

introduced through the testimony of one Richard Winans,

dhe

which consisted entirely of a recitation of a conversation

purportedly had between Winans and another individual

by the name of William Beal. Beal ultimately testified

that he had had no such conversation with Winans. A

great deal of other damaging hearsay testimony came in

without defense objection, including testimony concerning

the petitioner's life style and his ownership of a boat and a

plane.

Furthermore, the government attorney repeatedly

asked a variety of witnesses concerning the business of

Ecktagraphics Corporation. Without objection, these wit-

nesses were per: itted to testify that the business related

to “pornographic books.” In fact, one defense witness was

questioned without objection concerning her present em-

ployment in a pornographic outlet, although that business

had no relationship to this petitioner.

The evidence concerning skimming and the alleged

pornographic activities of the petitioner were argued to

the jury as a basis for finding that the petitioner was the

person responsible for filing taxes. Although the Court of

Appeals determined that the evidence was irrelevant and

should not have been admitted, it refused to find reversible

error in the absence of a defense objection. (Appendix p. 3.)

During the course of the defense, the District Court

excluded various business records of Ecktagraphics Corp-

oration based upon its determination that the witness had

not been the custodian of the records at the time the docu-

ments had been executed. Although the Court of Appeals

agreed with the petitioner’s contention that exclusion is not

justified merely because the witness was not the custodian

at the time of the execution of the documents, the court

found that the petitioner’s counsel had failed to make a

=~ )—

requisite offer of proof as to the relevance of the excluded

evidence. (Appendix p. 2.)

During closing argument, the prosecutor made asser-

tions of his personal belief based upon matters not in evi-

dence. The Court of Appeals found no reversible error,

stating that “({n] 0 objection was .aised.”” (Appendix p. 4.)

REASONS FOR GRANTING A WRIT

I

The Various Circuit Courts Of Appeals, And The

Various Panels Within The Ninth Circuit Court Of

Appeals, Are In Complete Disarray On The Issue

Of The Appropriate Standard To Be Applied To A

Question Of Whether A Criminal Defendant Has

Received The Effective Assistance Of Counsel.

The right to counsel has long been recognized as a funda-

mental right. Gideon v. Wainwright, 372 U.S. 335 (1963).

And, indeed, perhaps no other right is as essential to insure

that a criminal defendant receives the full panoply of rights

guaranteed to him by the United States Constitution. It is

somewhat surprising, and disconcerting, to realize that the

various circuit courts of appeals demonstrate no consistency

as to the appropriate standard to be applied to a denial of

this right. Compare United States v. Madrid Ramirez, 535

F.2d 125 (ist Cir. 1976); Gillihan v. Rodriquez, 551 F.2d

1182 (10th Cir. 1977); United States Ex Rel. Williams

v. Twomey, 510 F.2d 635 (7th Cir. 1975), and United

States v. Easter, 539 F.2d 663 (8th Cir. 1976). Although

the matter appears to be presently under en banc consider-

Sik we... > rat a i aes,

ation in the Ninth Circuit pursuant to the grant of hearing

in Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977), the

most recent en banc consideration in this circuit purports,

itself, to offer a variety of standards. See de Kaplany v.

Enomoto, 540 F.2d 975, 987 (9th Cir. 1975). The court

below in fact quoted the three standards of de Kaplany v.

Enomoto, supra, (Appendix p. 4) and apparently purport-

ed to apply the standard of the panel opinion in Cooper v.

Fitzharris, supra, that counsel rendered “reasonably effec-

tive assistance.”” (Appendix p. 4.)

The present case presents an appropriate vehicle for

discussion of this issue for a variety of reasons. First,

unlike the overwhelming majority of cases upon this issue,

the errors of counsel in this case may be analyzed with

regard to discreet portions of the record and without the

necessity of reference, at this state, to either the entire

record or to matters concerning the general preparation of

the case. See cases cited in de Kaplany v. Enomoto, supra.

Moreover, the opinion of the court below clearly

resolves a series of issues raised by the petitioner in the

petitioner’s favor, but finds that it either cannot consider

the issues as a result of the failure of the counsel to object

or finds that the failure to object imposes a higher stand-

ard of review. Thus, irrelevant, highly inflammatory and

hearsay evidence was admitted concerning alleged “‘skim-

ming” operations of the petitioner and concerning the

“pornographic” nature of the petitioner’s business, and

while the Court of Appeals’ opinion recognizes that the

evidence regarding “skimming” was irrelevant and that the

“gratuitous insinuation” of the word “pornography” into

the trial was “unworthy of a government lawyer” (Appen-

ia

dix p. 3), the court concludes:

“An error requiring reversal might have been

presented if defense counsel had objected at

the time the government insinuated the foreign

matter.” (Appendix p. 3.)

The court similarly finds that assertions of personal

belief by the prosecutor concerning matters not in evi-

dence were not reversible error as “[n] 0 objection was

raised.” (Appendix p. 4.) _

Finally, the court below, in agreeing with the peti-

tioner’s contention that various business records should

not have been excluded upon the ground that the custodian

of the records at the time of trial was not the custodian at

the time the various documents were made, finds that the

relevancy of the documents was never established, as a

result of the failure of petitioner’s trial counsel to make

the requisite offer of proof. (Appendix p. 2.) The court

concludes that “[i] f Haskin had a valid foundation for the

documents, he neglected to make it.” (Appendix p. 2.)

It is consequently submitted that it is absolutely

essential that this Court quiet the uncertainty surrounding

the appropriate standards to be applied to a denial of effec-

tive assistance of counsel and that the instant matter is an

appropriate case for making that determination. This is

especially so in view of the recognized principle that once

denial of effective assistance of counsel has been determin-

ed, the harmless-error standard does not apply. As stated

in Glasser v. United States, 315 U.S. 60, 76:

“The right to have the assistance of counsel

is too fundamental and absolute to allow courts

to indluge in nice calculations as to the amount

I~ *

~10—

of prejudice arising from its denial.”

i

The Provisions Of Title 26, United States Code

§ 7203 Cannot Rationally Or Legally Be Applied

To A Corporate Officer Solely Based Upon His

Status As Such An Officer.

The case presented to the District Court by the govern-

ment was largely based upon the assertion that Haskin, as

president of Ecktagraphics, was criminally responsible for

a corporate failure to file a tax return based primarily upon

his position in the corporation. The possible crippling effect

of such a rule upon the operation of all but the smallest corp-

orate businesses in the country is apparent. A corporate

officer cannot possibly become personally i~volved in each

of the day-to-day activities of the corporation, and yet, the

holding of the Ninth Circuit below would appear to require

him to do so at his criminal peril.

The basis for attaching liability under § 7203 to this

petitioner arises solely from the provisions of Title 26, U.S.C.

§ 7343 which defines the “person” as used in Chapter 75 of

that title as including “an officer . . . of a corporation

. who as such officer . . . is under a duty to perform

the act in respect of which the violation occurs.” On at least

two separate bases, however, that section does not make the ,

provisions of § 7203 applicable to this petitioner.

First, § 7343 applies only to such officer who is under

a “duty to perform the act” in question. Of necessity, the

term “duty” must be related to some other statutorily impos-

ed duty. In contrast to sections involving civil penalties,

=e

where such a “duty” is specified, no such duty is detailed

with regard to the criminal corporate filing sections.

Furthermore, § 7203 applies only to “any person re-

quired under this title to . . . make a return” (emphasis

added). That language leads one directly to the provisions

of Title 26, U.S.C. § 6012 entitled “Persons Required To

Make Returns Of Income.” That section requires the

returns to be made by “every corporation” but imposes

no such responsibility upon the corporate officers.

Moreover, under somewhat parallel legislation, at

least one circuit court of appeals has decided that the term

“person” does not include corporate officers. Thus, in

Newsom v. United States, 431 F.2d 742 (1970), the Fifth

Circuit refused to extend the liability for taxes withheld or

collected under 26 U.S.C. § 7501 to corporate officers.

Finally, unless the petitioner is correct in his analysis

of the sections, a corporate officer has greater protection

with regard to liability from civil tax collection actions

than he does in criminal actions. For, under § 7215 of

Title 26, U.S.C., in such civil collection actions, notice

is required prior to the initiation of ihe lawsuit. In con-

trast, under the government’s analysis, which appears to

have been adopted by the court below, criminal liability

may be imposed without knowledge or intent, and merely

as a result of the individual status of the corporate officer.

ii

A Conflict In The Circuit Courts Of Appeals

Exists With Regard To The Standard To Be

Applied To Prosecutorial Assertions Of Per-

sonal Belief And Argument To The Jury Based

—12—

Upon Matters Not In Evidence.

During the course of argument to the jury, the Assist-

ant United States Attorney made various references to

matters outside the record regarding the alleged extent of

petitioner's activities and importuned the jury to adopt the

government’s case by continually utilizing the phrase “‘I

think” while commenting on both the government and

defense case. The court below announced that the rule

of the Ninth Circuit is that “assertions of personal belief based

on matters not in evidence constitute reversible error unless no

objection is made. . . . No objection was raised [here]}.”

(Appendix p. 4.) The court thus found no reversible error.

(/bid. )

As indicated by the court, the Ninth Circuit generally

subscribes to the standard that assertions of belief based on

matters not in evidence would constitute reversible error

unless no objection is made or the prosecutor is attempting

to rebut insinuations of defense counsel. Orebo v. United

States, 292 F.2d 747, 749 (9th Cir. 1961); Anderson v.

United States, 406 F.2d 1057 (9th Cir. 1969). However,

while all circuits recognize that the prosecutor bears a

special responsibility as a representative of the government

(Berger v. United States, 395 U.S. 78, 88), the various circuit

courts do not agree on the appropriate standard to measure

prosecutorial expressions of personal belief. Thus, the First

Circuit appears to have the strictest standard, requiring rever-

sal whenever the prosecutor expresses his personal belief.

Patriarca v. United States, 402 F.2d 314, 321 (1968); Green-

berg v. United States, 280 F.2d 472 (ist Cir. 1960). The

District of Columbia Circuit relies upon Greenberg v. United

ma

States, supra, but requires that an objection be made. Harris

vy. United States, 402 F.2d 656 (1968). The Second Circuit

applies the rule to those situations which indicate that the

prosecutor was relying upon information other than that

which had been presented in court. United States v. Spanglet,

258 F.2d 338 (1958). This appears to be the rule in the Fifth

Circuit. Gradsky v. United States, 373 F.2d 706 (1967). The

Eighth Circuit has held that “statements by counsel or the

court are not cause for reversal unless prejudicial error is

apparent.” United States v. Leach, 429 F.2d 956 (1970). The

Tenth Circuit, while recognizing such error, has determined

to decide on a case-by-case basis whether the grounds for

reversal exist. Devine v. United States, 403 F.2d 93 (1968).

The standards of prosecutorial behavior relate, of course,

not only to the interest of the criminal defendants but also to

the manner in which society at large views and may rely upon

the responsibility of government officials and the judicial

process. It is therefore of utmost importance that this Court

take this opportunity to reaffirm the notions announced in

Berger v. United States, supra, and to give appropriate guid-

ance to the various circuit courts as to the standard to be

applied.

IV

The Court Of Appeals Was Incorrect In Form-

ulating An Ad Hoc Exception To The Hearsay

Rule Based Upon An After-The-Fact Determina-

tion Of “Reliability.”

The petitioner argued before the court below that the

evidence produced at trial was insufficient as a matter of law

mt

~14—

to establish the failure of Ecktagraphics Corporation to file

the requisite income tax return. Obviously, if the petitioner

had been successful upon this argument, an essential element

of § 7203 would not have been demonstrated and the peti-

tioner would be entitled to an acquittal. The government's

evidence utilized to show failure to file a tax return was

produced through one Keith Krouge, a representative of the

Internal Revenue Service, whose jurisdiction extended

throughout the states of California and Hawaii. Krouge’s

testimony established that he never requested a search to be

made with regard to Ecktagraphics Corporation, a Nevada

corporation, and that in fact the only search which he made

was to request a computer printout from Washington con-

cerning Ecktagraphics, a California corporation. The peti-

tioner argued (1) that the failure to search for the Nevada

corporation rendered Krouge’s testimony incompetent to

establish Ecktagraphic’s failure to file, and (2) that the ex-

tent of Krouge’s testimony was deficient to meet the require-

ments of Federal Rule of Evidence 803(10), concerning the

absence of a public record.

The interpretation given to Rule 803(10) by the court

below purports to remove the requirement that the custodian

of the records testify as to such search. The court’s interpre-

tation imposes, in its place, a requirement only that the records

in some unspecified manner be determined “reliable.” (Appen-

dix p. 7.) While the court, in its opinion, states rather blandly

that “reliability was never seriously in question,” the memo-

randum opinion overlooks the fact that the petitioner was

asserting that the search which had been made did not go far

enough in checking the filing status of the Nevada corporation.

Only through appropriate cross-examination of the requisite

ae

custodian could this requirement be satisfied. The Ninth

Circuit's opinion, however, authorizes the non-custodian

Krouge to testify to the results of a search made by some

unidentified person. This approach is not only contrary

to the historical background of Rule 803(10), which is

based upon Federal Rules of Criminal Procedure, Rule

27 and Rule 44!, but serves also to deprive criminal de-

fendants of their effective right to cross-examination. It

is indeed anomalous that the court is willing to view second-

hand governmental in-channels information with the aura of

reliability when the evidence is used as an element to con-

vict a criminal defendant, in the face of the requirement that

the ultimate source of such evidence must be subjected to

cross-examination on the less stringent standard of probable

cause to arrest. Whitely v. Warden, 401 U.S. 560 (1971).

CONCLUSION

This petition presents fundamental issues regarding

a variety of questions which remain unsettled in the various

circuit courts of appeals. These questions relate to the funda

mental right of representation by counsel, and to the special-

ized duty of a prosecutor to the defendant, the court and to

society. Furthermore, the petition presents a rather serious

issue concerning the liability of corporate officers for a

corporate failure to file tax returns, in the absence of know-

ledge or intent on their part. Finally, the petition raises an

-16-

issue concerning the propriety of judicial modification and

substantial alteration of the Federal Rules of Evidence

concerning utilization of governmental in-channels hearsay

information to convict a criminal defendant.

Each of these matters may be decided upon limited

portions of the record. And, each of thes. matters is raised

in the context of a criminal defendant convicted of three

misdemeanor offenses and, as a result of such convictions,

facing two years imprisonment, $30,000 in fines, proba-

tion and restitution. The issues are obviously substantial

to the petitioner. It is submitted, moreover, that the issues

are extremely important to the administration of justice

and to the conduct of the judicial system.

For each of these reasons, it is respectfully requested

that a Writ of Certiorari issue to review the judgment and

order of the United States Court of Appeais for the Ninth

Circuit.

Respectfully submitted,

DONALD M. RE

Attorney for Petitioner

United States Court of Appeals for

so

ER Uy regs ceausdcs

Notice of Entry of Judgment ..........

Order denying Petition for Rehearing

and Suggestion for Rehearing En Banc

[filed May 25,1978] ............+...

Pertinent statutory provisions

_ 5 NER Wy Se

Oh awk bebe ceceetes

26 USC. 7343 ses i Wades ceubeet

10

10

ES eS SR ce Saget &

APPENDIX “A”

MEMORANDUM OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Appellee, v. JAMES

HASKIN, Appellant.

No. 77-2410.

[FILED MARCH 29, 1978]

Appeal from the United States District Court

for the Central District of California.

Before: TRASK and GOODWIN, Circuit Judges, and

SOLOMON *, District Judge.

James Haskin was convicted on three counts of failure

to file income tax reterns on behalf of a corporation, Eckta-

graphics, of which he was president and sole owner.

On appeal, Haskin argues that some of his business

records were improperly excluded and that prejudicial

testimony, ineffective representation, misconduct of the

prosecutor, and a lack of impartiality by the court require

reversal.

Haskin also asserts that the government produced

insufficient evidence to prove: (1) that the corporation

was required to file a “calendar year” return, (2) that

Haskin was a person required to file these returns, (3) that

his conduct was willful, and (4) a failure to file. On these

* The Honorable Gus J. Solomon, Senior United States District Judge for

the District of Oregon, sitting by designation.

Appendix 2.

points, the evidence was sufficient for the jury to reach the

guilty verdict.

The business-records exclusion followed a ruling by

the trial court which interpreted Fed. R. Evid. 803(6) to

require the witness to have been the custodian of the records,

at the time the various documents were made, in order to

qualify the records under the hearsay exception. In C. S.

Johnson Co. v. Stromberg, 242 F.2d 793, 799 (9th Cir. 1957),

cert. denied, 355 U.S. 816 (1957), under the predecessor to

Fed. R. Evid. 803(6), 28 U.S.C. § 1732(a), we held otherwise.

It is not necessary to produce someone who was working at

the business when the documents were prepared, so long as

authenticity is otherwise established.

In the instant case, however, the relevancy of the docu-

ments was never established. Moreover, there was no founda-

tion for many of the exhibits, and no reason to believe that

others had been prepared in the regular course of business.

The purpose of introducing the excluded documents

was to show that one Jerry Lynn, an employee, was respon-

sible for taxes. The jury heard testimony to this effect. The

exclusion of the documents, under all the circumstances, was

not error. If Haskin had a valid foundation for the documents,

he neglected to make it.

Haskin argues that questions to witnesses about “skim-

ming’, and other remarks by the prosecutor that his business

was related to pornography or “adult” literature, and ques-

tions abcu:t the income of the business were irrelevant and so

highly prejudicial as to require a reversal. There was no evi-

dence that Haskin engaged in other illegal activity either with

respect to pornography or personal tax evasion.

The government explains that the prosecutor’s questions

Appendix 3.

about the nature of Haskin’s business and possible use of

corporate receipts for personal purposes was necessary

to prove Haskin’s total control of the business, to attack

the credibility of a defense witness, and to show that Eckta-

graphics and not some related corporation was indeed doing

the business which generated the income for which a tax

return was due.

Testimony about “skimming” was irrelevant to the

issue of whether corporate tax returns had been filed or

who was responsible for filing them. The gratuitous insin-

uation of the word “‘pornography”’ into the trial was the

sort of pettifogging that is unworthy of a government lawyer.

An error requiring reversal might have been presented if

defense counsel had objected at the time the government

insinuated the foreign matter. However, Fed. R. Evid.

103(a) (1) forecloses the assignment of error on appeal

when the point was not raised on trial. Had the point

been raised, we assume that the trial court could have made

the necessary corrections on the spot. The error, if any, was

not so prejudicial as to be plain error which we might notice

on appeal even though not raised in the trial court.

An exchange between the IRS agents and Haskin’s

attorney does not show the invocation of a Fifth Amend-

ment claim. The agents were attempting to obtain business

records from Haskin. He had no privilege as to these records.

United States v. White, 322 U.S. 694, 699 (1944), Wilson v.

United States, 221 U.S. 361, 380-8 (1911).

Haskin now argues that because “‘irrelevant, highly

inflammatory, and hearsay” evidence was admitted, largely

without defense objection, and because certain evidence

proffered by the defense was excluded, he received ineffective

(eo

.

i

)

ee eee

Appendix 4.

representation by counsel. He had constitutionally adequate

counsel. The trial was not perfect, but it was fair.

In de Kaplany v. Enomoto, 540 F.2d 975, 987 (9th

Cir. 1975), we noted the various standards by which appel-

late courts measure the conduct of counsel: (1) was the per-

formance so poor and incompetent as to make the trial a

farce or mockery of justice?, or (2) do the circumstances

show a denial of fundamental fairness?, or (3) does the

record show a lack of effective aid in the preparation and

trial of the case?

Counsel in this case was able to render and did render

reasonably effective assistance. This was far from a model

trial, but the errors and omissions of counsel, if any, under-

score the efficacy of hindsight. They do not rise to a denial

of due process.

Haskin argues that the introduction of prejudicial evi-

dence, combined with highly inflammatory pre-entations

of personal belief or knowledge by the prosecutor in the

final argument, amounted to reversible misconduct.

The rule in this circuit is that assertions of personal

belief based on matters not in evidence constitute reversible

error unless no objection is made. Orebo v. United States,

293 F.2d 747, 749 (9th Cir. 1961), cert. denied, 368 U.S.

958 (1962). However, the prosecutor can argue inferences

to the jury based upon the evidence. United States v. Parker,

549 F.2d 1217, 1221, 1222 (9th Cir. 1977). Here the prose-

cutor stated, “This is a big business, that Mr. Haskin was

running, a big business. Only a portion of it is reflected

here.”’, and at various times used the phrase “I think”

while commenting on the evidence. No objection was

raised. The court later instructed that statements of counsel

Appendix 5.

are not to be considered as evidence. We find no reversible

error here.

Haskin claims the court was not impartial. On balance

we cannot say that because the trial judge was sometimes

short with defense counsel the case must be reversed. The

court was sometimes abrupt with both counsel. We noted in

United States v. Schmitz, 542 F.2d 782 (1976),“Canon 3A(3)

of the Code of Judicial Conduct says: ‘A judge should be

patient, dignified, and courteous to litigants, jurors, witnesses,

lawyers, and others with whom he deals in his official capacity

* * * * ” 542 F.2d at 785. Here there is no reason to say

that the judge’s conduct did not meet that standard.

Haskin says that time is an essential element of an

indictment in a § 7203 criminal action. This is true. Haskin

then relies on the Intergraphs Corporation (a related company)

fiscal return to show that the indictment was invalid.

Title 26, U.S.C. § 441(g) reads in part:

“(T] he taxpayer’s taxable year shall be the

calendar year if — .

(1) the taxpayer keeps no books;

(2) the taxpayer does not have an annual

accounting period; or

(3) the taxpayer has an annual accounting

period, but such period does not qualify

as a fiscal year.”

The jury heard evidence that the books were inadequate or

insufficient for Ecktagraphics Corporation to have the

privilege of the option.

Haskin argues that there was no evidence to prove the

element of willfulness. Under United States v. Hawk, 497

F.2d 365, 368 (9th Cir. 1974), cert. denied, 419 U.S. 838

Appendix 6.

(1974), the standard of willfulness in § 7203 actions does

not include an independent element of bad purpose or evil

motive. It is sufficient that there is proof of conscious

wrongdoing rather than mere carelessness or mistake. If the

notion of mens rea is adequately conveyed, instructions to

include the terms bad purpose or evil motive may be reject-

ed. Here evidence was introduced to show that Haskin had

stated he would pay all taxes, that he had been made aware

tax returns had not been filed, and that he knew of a duty

to file. The jury could conclude that his failure to file was

willful.

Haskin argued at trial that the employee Lynn was

the “person required” to file the corporate income tax

returns and that the government never proved Haskin was

required to file the returns. In this court he assumes that

his position as corporate president was the sole basis of the

prosecution’s case. But there was more.

We have defined the “person” responsible for the pay-

ment of the tax as that individual who “had the final word

as to what bills should or should not be paid, and when.”

Dudley v. United States, 428 F.2d 1196, 1201 (9th Cir.

1970) (action to recover funds collected by Internal Revenue

Service), quoting from Wilson v. United States, 250 F.2d

312, 316 (9th Cir. 1958). “Final” means significant rather

than exclusive control. Turner v. United States, 423 F.2d

448, 449 (9th Cir. 1970). Haskin had total control.

Haskin argues that we should follow the reasoning in

United States v. Fago, 162 F. Supp. 125, 129 (W.D. N.Y.

1958), that where there are other officers the government

must show that the defendant is the one responsible. Whether

Or not we might agree with that abstract proposition, the jury

Appendix 7.

verdict can survive. The jury heard testimony that the

employee Lynn was just a figurehead; that Haskin had final

authority; and that Haskin ran the operations and negotiated

business deals. The jury may well have inferred that Haskin

knew that Lynn and Cornell (another employee) would never

file the required returns without Haskin’s approval, even though

they were stipposedly responsible.

The final issue is whether there was sufficient evidence of

a failure to file a return. The testimony of the IRS investigator

showed that two employer identification numbers were search-

ed. Haskin says this is hearsay. The important point of the

hearsay exception is reliability. Here the investigator could

request information from the Federal Records Center and

Archives and the National Computer Center. The government

made an explanation of how a diligent search is conducted.

We can discern no reason to have the person who actually

ran the computer testify. Reliability was never seriously in

question. The investigator’s evidence was admissible under

Fed. R. Evid. 803(10). It was up to the jury to give it such

weight as it deserved.

Haskin’s other contentions are without merit.

Affirmed.

APPENDIX “B” 8.

NOTICE OF ENTRY OF JUDGMENT

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Please take notice that the judgment was filed and entered

in the case noted on the attached disposition (opinion, memo-

randum or order). Also, please take special notice of the date

of filing as it represents the date of entry of judgment.

Important Time Periods

There are fourteen (14) days from the date of entry of judg-

ment in which to file a petition for rehearing. The mandate

of the court shall issue twenty-one (21) days after the entry

of judgment unless the court orders otherwise. If the court

enters an order denying the petition, the mandate will issue

(7) days thereafter. For further information regarding these

processes, please refer to Rules 36, 40 and 41 of the Federal

Rules of Appellate Procedure.

APPENDIX “C” 9.

ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

In the United States Court of Appeals for the Nir:th

Circuit.

UNITED STATES OF AMERICA, Appellee, JAMES

HASKIN, Appellant.

No. 77-2410.

[FILED MAY 25, 1978]

Appeal from the United States District Court

for the Central District of California

Before: TRASK and GOODWIN, Circuit Judges, and

SOLOMON’, District Judge.

On April 11, 1978, appellee filed its petition for

rehearing and suggestion for rehearing en banc.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sugges-

tion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc hearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

* The Honorable Gus J. Solomon, Senior United States District Judge

for the District of Oregon, sitting by designation.

11.

APPENDIX “D” 10. Appendix

| of a partnership, who as such officer, employee, or member

| PERTINENT STATUTORY PROVISIONS is under a duty to perform the act in respect of which the

| violation occurs.

Title 26, United States Code

87203. Willful failure to file return, supply informa t

tion, or pay tax |

Any person required under this title to pay any esti-

mated tax or tax, or required by this title or by regulations

made under authority thereof to make a return (other than

a return required under authority of section 6015), keep

any records, or supply any information, who willfully fails

to pay such estimated tax or tax, make such return, keep

such records, or supply such information, at the time or

times required by law or regulations, shall, in addition to

other penalties provided by law, be guilty of a misdemeanor

and, upon conviction thereof, shall be fined not more than

| $10,000, or imprisoned not more than | year, or both,

together with the costs of prosecution. —

87215. Offenses with respect to collected taxes

(a) Penalty.—Any person who fails to comply with

any provision of section 7512(b) shall, in addition to any

other penalties provided by law, be guilty of a misdemeanor,

and, upon conviction thereof, shall be fined not more than

$5,000, or imprisoned not more than one year, or both, —

together with the costs of prosecution.

§ 7343. Definition of term “person”

The term “person” as used in this chapter includes an

officer or employee of a corporation, or a member or employee

County of Orange )

L, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of California,

over the age of eighteen years and not a party to the within action or proceeding;

that

My business address is 326% Main Street, Huntington Beach, California 92648,

that on SUNEQ, 1978, | served the within PETITION FOR WRIT OF CER-

TIORARI (HASKIN v. UNITED STATES OF AMERICA) on the following

named parties by depositing the designated copies thereof, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States Post Office in

the City of Huntington Beach, California, addressed to said parties at the addre sses

as follows:

Clerk, United States Court of Appeals

For the Ninth Circuit

Seventh and Mission Streets

P. O. Box 547

San Francisco, CA. 94101

Ref. 77-2410 - 1 copy

United States Attorney

312 North Spring Street

Los Angeles, California 900i 2

2 copies

Clerk, United States District Court

Central District of California

312 North Spring Street

Los Angeles, California 90012

1 copy

Soiicitor General of the United States

U. S. Department of Justice

Washington, D.C. 20530

3 copies

I declare under penalty of perjury that the foregoing is true and correct.

Executed on JUNE J71978, at