Petition — Kalav v. United States

<a RRT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

48-230

NO. eo e e ® eo

Charles S. Kalav, Petitioner,

Ve

United States of America, Respondent

/

Petition for a Writ of Certiorari to the

United States Court of Appeal

For the Ninth Circuit

Gordon E. Youngman, Esq.

Joel M. Lawlor, Esq.

Suite 1101

1801 Century Park East

Los Angeles, Ca. 90067

(213) 277-3333

Counsel for Petitioner

Goiniem below 1. oe hw eo se et

SUSE eOeee 6° Sb) ew 6 te ee

Question presented for review...

Constitutional provisions involved

BGGtieee Samaras sas 4 et st et 8

Panes is «es «© « «© & & © « «

Reasons for granting the writ...

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a te ee ew See eC

Pee GB wn eS lee we we

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Proof of service by mail .....

Citations

Constitution:

Fifth Amendment, United States

ce eS ee

Sixth Amendment, United States

ce ee ee ee

° De

23

ail

Vi na

Cases:

Brubaker v. Dickson ....

3h0 Biea 30, 37

(9th Cir. 1962)

Cooper v. Fitzharris ....

o5L F.2d 1162 (19/7)

Rehearing granted

Dalrymple v. Wilson ....

F

° 7

(9th Cir. 1966)

JOhnson v. Craven .....

432 F.2d 418

(9th Cir. 1970)

Leano v. United States ...

457 F.2d 1208

(9th Cir. 1972)

Mengarelli v. United States

476 F.2d 617

(Sth Cir. 1973)

United States v. Stern...

SL Fat Seh,e Dae

(9th Cir. 1975)

Mraene 9. Craven . 9... 2 6s

412 F.2d 915

(9th Cir. 1969)

Statutes:

18 United States Code § 134l

18 United States Code § 2314

28 United States Code § 1245(1)...

28 United States Code § 2255 3,

24

24

23

24

24

24

24

23

12

12

Other:

American Bar Association

Project on Standars for

Creams WUNEGAOO ws tw ce tlt ltl el tll 8 CM

~ S55 «

—_—r

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

CHARLES S. KALAV, Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

CHARLES S. KALAV, petitioner, prays that

a writ of certiorari issue to review the

Memorandum of the United States Court of

Appeals for the Ninth Circuit ("the Ninth

. Circuit Court"), filed and entered June 9,

1978.

Biview,

OPINION BELOW

The Memorandum of the Ninth Circuit

Court sought to be reviewed is reproduced

in Appendix A, infra at page 30; it was not

designated as "For Publication".

JURISDICTION

The Memorandum of the Ninth Circuit

Court (Appendix A) was filed and entered on

June 9, 1978. Rehearing of said Memorandum

was sought by a timely filed Petition there-

for; said Petition for Rehearing was denied

by the Ninth Circuit Court by Order, filed

July 14, 1978, a copy of which Order is

reproduced in Appendix 8B, infra,at page 35.

The jurisdiction of this Court is invoked

under 28 U.S.C. § 1245(1).

QUESTION PRESENTED FOR REVIEW

Whether petitioner was denied the

effective assistance of counsel at his

criminal trial below, as guaranteed by the

a ele

ett ge Boy

Fifth and Sixth Amendments to the United

States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth and Sixth Amendments to the

United States Constitutien which provide

as follows:

ae Amendment V: "No person shall...

be deprived of life, liberty or property,

without due process of law";

ym Amendment VI: "In all criminal

prosecutions, the accused shall enjoy the

right...to have the assistance of Counsel

for his defense."

STATUTES INVOLVED

The statutes under which petitioner

was prosecuted and for the violation of

which he was convicted are 18 U.S.C.

§§ 1341 and 2314. The statute under which

petitioner sought post conviction relief

was 28 U.S.C. § 2255. Because these

provisions are lengthy, their pertinent

text is set forth in Appendix D, infra,

page 39.

STATEMENT

The facts necessary to place in its

setting the question now raised may be

briefly stated:

A. Course of proceedings in the case

now before the Court.

On March 15, 1976 petitioner was

indicted by a federal grand jury in United

States of America v. Charles S. Kalav, said

action bearing the number CR 76 325 FW in the

files of the United States District Court

for the Central District of California ("the

Fraud Action"). The indictment was in seven

(7) counts and charged petitioner with inter-

state transportation of money obtained by

fraud (count 2) in violation of 18 U.S.C.

§2314 and mail fraud (counts l, 3, 4, 5, 6,

and 7) in violation of 18 U.S.C. § 1314.

On May 10, 1976, petitioner was

arraigned on the Frau. Action before the

Honorable Francis C. Whelan, United States

District Court Judge, petitioner entering

a plea of "not guilty" as to each of the

counts of the indictment, and the matter was

set for jury trial.

On August 3, 1976, the trial on

the Fraud Action commenced and on August 16,

1976, the jury returned a verdict of guilty

on counts 2 through 7, the District Court

having theretofore granted petitioner's

motion for judgment of acquittal as to

count 1 of the indictment.

On August 16, 1976, the District

Court sentenced petitioner on the Fraud

Action to the custody of the Attorney

General for a period of eighteen months on

counts 2, 3 and 4, each to run concurrently

with the other, and suspended imposition of

Sentence on counts 5, 6 and 7 and imposed

five years probation on each of these counts,

to run concurrently each with the other, but

consecutively to the sentence imposed upon

counts 2, 3 and 4.

On August 16, 1976, petitioner

filed a Notice of Appeal from his conviction

On the Fraud Action. (Petitioner's trial

counsel has not represented petitioner sub-

sequent to the filing of the said Notice of

Appeal.)

On March 14, 1977, petitioner's

Opening Brief was timely filed, on or about

April 5, 1977 the Appellee's Brief was timely

filed and on April 25, 1977 petitioner's

Reply Brief was timely filed. The only

ground of appeal addressed in petitioner's

Opening and Reply briefs in the Fraud Action

was that the District Court erred in not

granting petitioner's motion for acquittal

following the government's presentation of

its evidence at trial.

On October 28, 1977, petitioner's

appellate counsel mailed to the Ninth Circuit

Court an “Application to File a Supplemental

Brief and to Postpone Argument", in which he

contended that petitioner had been denied |

effective assistance of counsel at trial in

contravention of petitioner's rights to due

process Of law under the Fifth Amendment to

the United States Constitution and to effec-

tive assistance of counsel under the Sixth

Amendment to the United States Constitution.

On November 1, 1977, while peti-

tioner's appeal was pending in the Ninth

Circuit Court, petitioner filed, in the

District Court, a "Motion to Vacate, Set

Aside, or Correct Sentence" ("the Petition")

under 28 U.S.C. § 2255, which was assigned

the number 77-4099-FW by the clerk of the

District Court ("the Habeas Corpus Action"),

and which attacked the legality of peti-

tioner's conviction in the Fraud Action upon

the ground that he did not have effective

representation by trial counsel therein.

The Petition consisted of the following:

(1) the District Court's form for such a

petition, duly completed; (2) a Supplemental

Memorandum of Points and Authorities in

Support of the Petition; (3) an Affidavit of

William Montgomery; (4) an Affidavit of peti-

tioner; and (5) an Affidavit of Joel M.

Lawlor, Esq., counsel for petitioner.

On November 2, 1977, Judge Whelan

ordered ("the Order") the government in the

Habeas Corpus Action to file a response to

the Petition, and specifically required

that the response include references to

those portions of the reporter's transcript

of the trial below relating to the alleged

false and fraudulent representations of

petitioner and the time or times when each

of such representations was made.

On or about November 15, 1977, the

government filed its response to the Fetition

in the Habeas Corpus Action, denominated

"Government's Response to Motion Filed

Pursuant to 28 U.S.C. § 2255; Memorandum of

Points and Authorities; Declaration of

Anstruther Davidson; Exhibit" ("the Response”).

On or about November 29, 1977,

petitioner filed a reply to the Response in

the Habeas Corpus Action, denominated "Reply

of Defendant-Petitioner to Government's

Response to Motion of Defendant-Petitioner

Filed Pursuant to 28 U.S.C. § 2255; Memo-

randum of Points and Authorities in Support

Therof" (“the Reply").

On February 3, 1978, the Ninth

Circuit Court granted petitioner's Appli-

cation to file a supplemental brief in the

Fraud Action.

On or about February 17, 1978,

petitioner's appellate counsel filed

Appellant's Supplemental Brief in the Fraud

Action, in which he detailed the sisted in

which petitioner was denied effective

assistance of counsel at his trial.

On June 9, 19 ®8, the Ninth Circuit

Court filed its Memorandum in the Fraud Action

(Appendix A, infra, p. 30) in which the Court

affirmed petitioner's conviction, determining

(a) with respect to petitioner's claim that

the District Court erred in not granting his

motion for acquittal following the govern-

ment's presentation at trial, that there was

sufficient incriminating evidence before

the jury to warrant the finding of guilt

beyond a reasonable doubt, and (b) with

respect to petitioner's claim that he was

Genied effective assistance of counsel, that

petitioner did, in fact, receive effective

assistance of counsel.

On June 23, 1978, petitioner filed

with the Ninth Circuit Court (i) a Motion to

Supplement the Record on Appeal to include

the Petition, the Order, the Response and

the Reply which were filed in the Habeas

Corpus Action, and (ii) a Petition for

Rehearing of the Memorandum in the Fraud

Action.

4 On July 14, 1978, the Ninth Circuit

o- 23 =

Court filed its Order (i) that the Motion to

Supplement the Record be filed, (ii) that the

Petition for Rehearing be filed, and (3)

denying the Petition for Rehearing (Appendix

B, infra, p. 35).

On July 19, 1978, petitioner filed

with the Ninth Circuit Court an Application

for Stay of Issuance of Mandate in the Fraud

Action; on July 26, 1978, the Ninth Circuit

Court Filed its Order staying issuance of

Mandate until August 20, 1978 (Appendix C,

amuizra, PP. 37).

Copies of the Petition, Order,

Response and Reply which were filed in the

Habeas Corpus Action are annexed, as

Exhibits "A", "B", "C" and "D", respectively,

to petitioner's Motion

Record on Appeal filed

with the Ninth Circuit

June 23,

1978, and the

William Montgomery and

to Supplement the

in the Fraud Action

Court on or about

affidavits of

petitioner, respecting

petitioner's lack of effective assistance of

;

%

counsel at trial, are attached as Exhibits

"B" and "C", respectively, to the Petition.

B. Relevant facts concerning peti-

tioner's underlying convictions for mail

fraud (18 U.S.C. § 1341) and interstate

transportation of money obtained by fraud

(18 U.S.C. § 2313).

Petitioner was convicted on one

count of interstate transportation of money

obtained by fraud (in violation of 28 U.S.C.

§ 2314) and five counts of mail fraud (in

violation of 28 U.S.C. § 1341).

It is clear, from the proceedings

prior to and at trial that the "theory" of

the government's prosecution was that peti-

tioner had defrauded numerous "investors"

of money by knowingly making false and

fraudulent representations, pretenses and

promises. Specifically, the government con-

tended that petitioner had made the following

representations, pretenses and promises to

various “investors": (1) that petitioner had

- 12 -

+ Nena

3

an option that would enable him to obtain

stock in a corporation, known as GCI, and

then to transfer said stock to persons who

invested funds with iiim; and (2) that

petitioner would return the full dollar

amount Of any "investment" (plus eight

percent per annum interest) to all investors

if petitioner was unable to deliver the

subject stock. The government argued that

these representations, pretenses and promises

were false at the time petitioner made them,

that petitioner knew them to be false, and

that they were made as a part of a scheme

and artifice to defraud the said "investors".

The indictment upon which petitioner

was tried and convicted contained seven counts:

count 1 alleged that on April 5, 1973, one

Robert C. Vogel delivered a $1,000.00 check

to petitioner, by mail, as and for an

investment in GCI stock; count 2 alleged

that on April 9, 1973, one Harry L. Page

delivered a $10,000.00 check to petitioner,

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by mail, as and for an investment in GCI

stock; count 3 alleged that in June, 1973,

one James S. Forrester delivered a $10,000.00

check to petitioner, by mail, as and for an

investment in GCI stock; count 4 alleged that

On August 6, 1973. One Robert J. Parker

delivered a $5,000.00 check to petitioner,

by mail, as and for an investment in GCI

| stock; count 5 alleged that on September 5,

1973, petitioner delivered a so-called

"lulling letter", by mail, to Robert J.

Parker, in connection with Parker's Satine

ment", which was and is the subject matter

of count 4; count 6 allecged that on

September 11, 1973, one Dr. Spencer Koener

; delivered a $1,000.00 check to petitioner,

* by mail, as and for an investment in GCI

' stock; and count 7 alleged that on July 24,

1974, petitioner delivered a so-called

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"lulling letter", by mail, to Dr. Koener in

connection with Koener's “investment", which

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was and is the subject matter of count 6.

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The critical issue at the trial

below was whether or not petitioner had a

valid and binding option to purchase the

stock of GCI on the dates and at the times

of the events mentioned in the indictment.

The only testimony at the trial

as to the nature, scope and duration of the

Subject option came from petitioner, who was

the only witness who testified on behalf of

the defense, and a government witness,

named Patrick N. DiCarlo, who was, at all

celevant times, the chief operating officer

of GCI.

Respecting the option, DiCarlo

testified, inter alia, as follows:

i that it was not until May,

1973, that DiCarlo had any converations with

petitioner respecting the details of the

option that he admittedly gave to petitioner

to purchase GCI stock, and that the said

option was memorialized in a written option

agreement, dated June 12, 1973;

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as that there were never any

discussions between DiCarlo and petitioner

regarding the value of GCI stock, and that

he (DiCarlo) never told petitioner, as a

certainty, that the par value of the stock

was going to be reduced to $l per share;

and

3s that there was a Rescission

Agreement, bearing the date of August 6, 1973,

wherein the option given to petitioner to

acquire GCI stock was rescinded and that (a)

the first conversation between him (DiCarlo)

and petitioner concerning the said rescission

Occurred approximately two or three days

prior to August 6, 1973, (b) that there was

a meeting on August 6, 1973, to discuss the

said subject matter, and (c) that petitioner

returned the Rescission Agreement, duly

executed by petitioner, a few days there-

after.

Petitioner's testimony at his trial,

respecting the nature, scope and duration of

a?

the said option, was directly contradictory

to the testimony of DiCarlo. Indeed, peti-

‘tioner testified that at all times from and

after March of 1973 and continuing until

November of 1973, he had a valid, binding

option to purchase at least two million shares

of stock of GCI Corporation at no more than

$l per share.

At the time of petitioner's trial,

he was incarcerated at the Los Angeles County

Jail, serving a sentence imposed upon him

after conviction for (an earlier and unrela-

ted) federal income tax law violation. At

his trial in the Fraud Action, a certified

copy of his earlier conviction was intro-

duced and presented to the jury, as affecting

petitioner's credibility when he testified

in his own defense.

When petitioner heard DiCarlo's

testimony at trial, as outlined hereinabove,

petitioner repeatedly advised his trial counsel

that William Montgomery, if called as a

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witness, could and would refute DiCarlo's

testimony on each of the points outlined.

Petitioner's trial counsel, however, failed

and refused to locate Montgomery and call

him as a witness on petitioner's behalf.

As pointed out hereinabove, at the time of

petitioner's trial in the Fraud Action he

was incarcerated, hence, it was impossible

for petitioner to locate Montgomery and

arrange for his testimony. (See, Affidavit

of Charles Kalav, annexed as Attachment "B"

to petitioner's Supplemental Brief.)

Had William Montgomery been con-

tacted by petitioner's trial counsel,

interviewed and called as a witness for the

defense, Montgomery would have testified

consistent with petitioner and contradictory

to DiCarlo as to the nature, extent and

duration of the option petitioner received

from DiCarlo, which testimony would have

been of critical importance on the issue of

petitioner's guilt or innocence. (See,

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cer ho Se ee n. te

So Wa ik, 3 Picgsix Ee BCE Fee,

Affidavit of William Montgomery, annexed as

Attachment "A" to petitioner's Supplemental

Brief.

REASONS FOR GRANTING THE WRIT

The Court of Appeals had so far departed

from the accepted and usual course of judicial

proceedings as to call for an exercise of

this Court's power of supervision.

The only major issue at the trial below

was whether or not petitioner had a valid

and binding option to purchase stock of GCI

on the dates upon which he said he had such

an option. Petitioner testified that the

Option was granted in March, 1973 (well

before any monies were delivered to him by

the "investors") and was rescinded retro-

actively in or about October or November

of 1973 (well after any monies had been

delivered to him by the "investors").

—; 2

DiCarlo testified that he gave petitioner

_ the option in mid-June, 1973 and rescinded

i the option on or about August 6, 1973. Thus,

| the dates upon which the option was granted

and rescinded were and are critical to the

case.

Even the Ninth Circuit Court, in its

Memorandum, recognized the importance, to

petitioner's guilt or innocence, of his having

the option that he said he did at the times

he said he had it. In its discussion of the

point, the Ninth Circuit Court stated "As it

turned out, appellant did not have the option

he said that he did." (See, Memorandun,

: Appendix A, infra, p. 30.)

At his trial, the evidence against peti-

tioner was that either before mid-June, 1973

(the time at which DiCarlo testified he

granted petitioner the subject option) or

after August 6, 1973 (the time at which

DiCarlo testified the said option was

rescinded), petitioner engaged in acts which

expressly or impliedly indicated to others

that he had the said option. However, the

evidence in the record was and is that all

of the monies were paid to petitioner, and

the two so-called "lulling letters" were

dated, no earlier than April 5, 1973 and no

aE Py oe ihr Fea Salat hd LM I A OOO TIO BEG EAN as ant

later than September 11, 1973, well within

the period of time during which petitioner

testified that he had the subject option.

7

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It is understandable, though, how the

jury could have convicted petitioner if the

jury believed DiCarlo's testimony that peti-

tioner only had an option to purchase GCI

stock for a few weeks commencing on June 12,

1973 and terminating on or about August 6,

1973; as such, the payment of any monies to

petitioner by the "investors" prior to

June 12, 1973 or after August 6, or so 1973

would have been at a time when petitioner

did not have the option. On the contrary,

if the jury had believed petitioner's testi-

mony to the effect that he had an option from

— sae

March of 1973 to November of 1973, the payment

of monies to him during that entire period

3

i

4

3

of time could not have supported his convic-

tion.

roy Aint

At the time of petitioner's trial,

William Montgomery, if called as a witness

for petitioner would have testified contrary

_ to DiCarlo and consistent with petitioner as

: to the nature, scope and duration of the said

Option, and the failure of petitioner's trial

counsel to seek out and call Montgomery

amounted to a denial of the effective assis-

tance of counsel.

The jury, when it weighed petitioner's

credibility as against DiCarlo's credibility

was bound to "tip the scales" in favor of

DiCarlo by virtue of the jury's awareness of

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petitioner's prior conviction. However, had

' Montgomery been contacted, interviewed, called

as a witness for the defense and testified

consistent with petitioner and contradictory

to DiCarlo, it is entirely possible that the

=: =

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jury would have "tipped the scales” in favor

of petitioner.

Certainly petitioner was entitled, as

a matter of constitutional imperative, to

have Montgomery's testimony at least pre-

sented to the jury.

The Sixth Amendment to the United

States Constitution guarantees a criminal

defendant the right to effective assistance

of counsel. While the Sixth Amendment's

command is unambiguous, different appellate

courts have enunciated differing standards

by means of which the effectiveness of

counsel is to be tested. For example, in

the Ninth Circuit Court alone there are three

standards: (1) performance so poor and

incompetent as to make the trial a farce or

mockery of justice (United States v. Stern,

519 F.2d 521, 524 (9th Cir. 1975); Wright v.

Craven, 412 F.2d 915 (9th Cir. 1969);

Dalrymple v. Wilson, 366 F.2d 183, 185

(9th Cir. 1966)); (2) circumstances showing

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a denial of fundamental fairness (United

States v. Stern, supra, at 525; Mengarelli

v. United States, 476 F.2d 617 (9th Cir.

1973); Johnson v. Craven, 432 F.2d 418

(9th Cir. 1970)); and (3) lack of effective

aid in the preparation and trial of the

case -- lack of counsel likely to render and

rendering reasonably effective assistance

(Cooper v. Fitzharris, 551 F.2d 1162 (1977)

rehearing granted; Leano v. United States,

457 F.2d 1208 (9th Cir. 1972); Brubaker v.

Dickson, 310 F.2d 30, 37 (9th Cir. 1962)).

Regardless of what standard is chosen

and applied, it cannot be disputed that a

defendant is denied effective assistance of

counsel if such defense counsel has not

prepared and has not conducted the defense

with reascnable knowledge and skill. In that

regard, the Court's attention is directed to

the American Bar Association Project On

Standards For Criminal Justice, Standards

Relating to the Defense Function (App.

» 24-%

Draft 1971) ("the Standards") which recog-

nized that "investigation and preparation"

are keys to effective representation.

Minimally, this requires counsel to contact

persons whom he knows or should have

reasonably known were or are witnesses to

the events in question; and to conduct

these interviews and investigations as

promptly after his appointment as is possible

before memories fade or witnesses disappear.

In that regard, the Commentary to the

Standards, Section 4.1, provides that "[t]Jhe

relationship of effective investigation by

the lawyer to competent representation at

trial is patent for without adequate investi-

gation he is not in a position to make the

best use of such mechanisms as cross-

examination or impeachment of adverse

witnesses at trial or to conduct plea dis-

cussions effectively."

In its Memorandum, the Ninth Circuit

Court made short shrift of petitioner's

contention that he was denied the effective

assistance of counsel at his trial. In that

regard, the Ninth Circuit Court's decision

reflects its belief that the testimony of

William Montgomery, if given at petitioner's

trial, would have been of no consequence.

It is respectfully submitted that the Ninth

Circuit Court either overlooked or misappre-

nended the legal and factual effect of

whether or not petitioner had the option

that he claimed he had at the time he claimed

he had it. Indeed, as pointed out herein-

above, in the portion of the Memorandum

discussing the sufficiency of the evidence

to support a finding at trial of petitioner's

guilt, the Ninth Circuit Court made the

statement "As it turned out, appellant did

not have the option he said that he did,"

thus acknowledging the importance of that fact.

The only evidence supporting the determination

that petitioner did not have the option he

said he had, of course, was the evidence of

the sole witness whose testimony would have

been flatly contradicted had Montgomery

testified.

In discussing petitioner's claim of

ineffective assistance of counsel, the Ninth

Circuit Court in its Memorandum stated that

"even if all of [Montgomery's] testimony had

been given, it would not have negated the

elements of the crime. No defenses to the

charge would have been presented." Again,

it is respectfully submitted that had

Montgomery testified at petitioner's trial,

and had his (Montgomery's) testimony been

believed, it would have compelled the conclu-

sion that petitioner, indeed, had the option

he claimed he had at the times he claimed

he had it. That, of course, would have

negated one of the elements of the crime,

namely, that petitioner knew that the repre-

sentations he was making were false at the

time he made them, and would have constituted

a defense to the charges. Indeed, whether or

- ie

not petitioner had the option was the corner-

stone upon which the indictment was placed

and was the foundation upon which the govern-

ment's case was built. If petitioner either

had the Option he claimed he had or believed

that he had the option, the case against

him crumbles.

Petitioner's trial counsel did not

contact, interview or call as a witness an

individual who would have testified on

behalf of petitioner and who would have

contradicted a "key" prosecution witness

as to the nature, scope and duration of the

subject option; petitioner's trial counsel's

failure to seek out and interview that witness

was. not Supported by tactical considerations,

informed or otherwise, violated said trial

counsel's duty to conduct a factual investi-

gation, and, hence, denied petitioner

effective assistance of counsel.

CONCLUSION

It is submitted that, for the reasons

set forth above, petitioner was not accorded

effective assistance of counsel at his trial.

Accordingly, this Petition for a Writ of

Certiorari should be granted.

Dated: August ££, 1978

Respectfully submitted,

Ahn oe Leas Etre

“~ GORDON E. ais

Cth taal

M. LAWLOR)

1801 Century Park East

Suite 1101

Los Angeles, CA 90067

Attorneys for Petitioner

o 29. «

APPENDIX A

FILED

JUN 9 1978

EMIL E. MELFI, JR.

Clerk, U.S. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

vs. . ) No. 76-3618

CHARLES S. KALAV, ) MEMORANDUM

Defendant-Appellant. )

Appeal from the United States

District Court for the Central

District of California

Before: TRASK and GOODWIN, Circuit Judges,

and SOLOMON,* District Judge

Appellant, Charles Kalav, appeals from

his jury conviction on five counts of mail

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

One count of interstate transportation of

* Honorable Gus J. Solomon, Senior United

States District Court Judge; for the District

of Oregon, sitting by designation.

—'

money Obtained by false representation in

violation of 18 U.S.C. § 2314.

In the initial round of briefs,

appellant argued that the district court

erred in not granting his motion for

acquittal following the government's

presentation at trial. Supplemental briefs

were allowed to be filed on the issue of

ineffective assistance of counsel.

The test for determining the validity

of a decision denying a motion for

acquittal is found in United States v.

Scott, 452 F.2d 660, 662 (9th Cir. 1971):

"The measure which the court

must use to determine the validity

of a motion for acquittal is

whether the evidence is such that

a jury might reasonably base a

finding thereon that the accused

is guilty beyond a reasonable

doubt .. . . Should the court be

of the opinion that prudent jurors

Might have no reasonable doubt, or

might disagree

[2]

as to its existence, the matter

lies within the jury's province and

the motion must be denied."

(Citations omitted)

The appeals court can examine all the

evidence presented at trial and does not

have to limit itself to reviewing only that

evidence admitted up to the time the motion

was made. United States v. Martinez, 514

F.2d 334, 337 (9th Cir. 1975). See contra,

Cephus v. United States, 117 U.S.App.D.c. 15,

324 F.24 693 (D.C. Cir. 1963).

A review of the evidence here shows

that the jury had more than enough incri-

minating material before it to find guilt

beyond a reasonable doubt.

The fraudulent scheme was one in which

appellant represented to four doctors that

he had an option to purchase stock in an

investment company called GCI. He offered

to exercise these stock options using the

doctors' money to buy shares on their

behalf. Thereafter, by the organization of

a limited partnership and a public offering,

the heart and lung institute would be

financed, the doctors would make a great

deal of money and the International Heart

- 32-

& Lung Institute (IHLI) would come into

being. As it turned out, appellant did not

have the option he said that he did. He

took the money the doctors furnished and

used it for his own living expenses and

not for the purposes promised. He never

paid back any part of the money; thus,

finally the institute turned out to be a

nightmare instead of a dream fulfilled.

No witnesses were produced by the *‘

appellant except Mr. Kalav himself. It is

the function of the jury to determine who

is telling the truth and who is not. Here,

the jury believed the witnesses for the

government and not the testimony of the

appellant.

Appellant's allegations of ineffective

assistance of counsel center on his trial

attorney's failure to call a

[3]

witness -- William Montgomery. In an affi-

davit submitted to this court, Montgomery

a 33 @

refuted some of the testimony against

appellant. But, even if all of his

testimony had been given, it would not have

negated the elements of the crime. No

defenses to the charge would have been

presented. The scope of pretrial investi-

gation and choice of witnesses are matters

of trial tactics which are generally not

second-guessed by the appeals court.

United States v. Ladley, 517 F.2d 1190,

1194 (9th Cir. 1975); United States v.

Pearson, 482 F.2d 809, 811-12 (9th Cir.

1973). Under the three tests for ineffec-

tive assistance of counsel set out in

DeKaplany v. Enomoto, 540 F.2d 975 (9th Cir.

1976), appellant did receive effective

assistance of counsel.

Judgment is AFFIRMED.

- 34-

APPENDIX B

FILED

JUL 14 1978

EMIL E. MELFI, JR.

CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

V. ) No. 76-3618

CHARLES S. KALAV, ) ORDER

Defendant-Appellant. )

Before: TRASK and GOODWIN, Circuit Judges,

and SOLOMON,* District Judge

The appellant's substitution of

attorneys may be filed; the motion to

supplement the record may also be filed.

Appellant's petition for rehearing

received by the Clerk on June 23, 1978

(Memorandum filed by the court, June 8,

*Honorable Gus J. Solomon, Senior United

States District Judge, for the District of

Oregon, sitting by designation.

1978), is herewith ordered filed.

We have considered the documents and

the panel has voted to deny the petition

for rehearing.

The petition for rehearing is denied.

APPENDIX C

FILED

JUL 26 1978

EMIL E. MELFI, JR. CLERK

U. S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ]

Plaintiff/Appellee,

vs. No. 76-3618

CHARLES S. KALAV, DC #Cv1724 RDF

Defendant/Appellant.

ORDER STAYING ISSUANCE OF MANDATE

Upon application of Joel M. Lawlor

counsel for the appellant, and good cause

appearing, IT IS ORDERED that the issuance,

under Rule 41 (a) of the Federal Rules of

Appellate Procedure, of the certified copy

of the judgment of this Court in the above

cause be and hereby is stayed pending the

filing, consideration and disposition by

the Supreme Court of the United States

of a petition for writ of certiorari to be

made by the appellant herein, provided

such petition is filed in the Clerk's

Office of the Supreme Court of the United

States on or before August 20, 1978.

In the event the petition for writ of

certiorari is granted, then this stay is

to continue pending the final disposition

of the case by the Supreme Court of the

United States.

/s/

Ozell M. Trask,

United States Circuit Judge

DATED: SAN FRANCISCO, CALIF.

APPENDIX D

18 U.S.C. §1341 provides, in pertinent

part, that:

"Vihoever, having devised or

intending to devise any scheme or

artifice to defraud, or for

obtaining money or property by

means Of false or fraudulent

pretenses, representations, or

promises , . . . for the purpose of

executing such scheme or artifice

Or attempting so to do, places in

any post office or authorized

depository for mail matter, any

matter or thing whatever to be sent

or delivered by the Postal Service,

‘Or takes or receives therefrom, any

such matter or thing, or knowingly

causes to be delivered by mail

according to the direction thereon

« « e« {Shall be guilty of an

offense against the laws of the

United States].”"

18 U.S.C. §2314 provides, in pertinent

part, that:

"Whoever transports in

interstate ... commerce...

money Of the value of $5,000 or

more knowing the same to have been

taken by fraud..." {shall be

guilty of an offense against the

laws of the United States]".

28 U.S.C. §2255 provides that:

"A prisoner in custody under

sentence of a court established by

Act of Congress claiming the right

to be released upon the ground that

the sentence was imposed in

- violation of the Constitution or

laws of the United States, or that

the court was without jurisdiction

to impose such sentence, or that

the sentence was in excess of the

maximum authorized by law, or

« £6 «

ey

:

is otherwise subject to collateral

attack, may move the court which

imposed the sentence to vacate, set

aside or correct the sentence.

A motion for such relief may be

made at any time.

Unless the motion and the files

and records of the case

conclusively show that the prisoner

is entitled to no relief, the court

shall cause notice thereof to be

served upon the United States

attorney, grant a prompt hearing

thereon, determine the issues and

make findings of fact and

: woewentons of law with respect

thereto. If the court finds that

the judgment was rendered without

jurisdiction, or that the sentence

imposed was not authorized by law

or otherwise open to collateral

o AS =

attack, Or that there has been such

a denial or infringement of the

constitutional rights of the

prisoner as to render the judgment

vulnerable to collateral attack,

the court shall vacate and set the

judgment aside and shall discharge

the prisoner or resentence him or

grant a new trial or correct the

sentence as may appear appropriate.

A court may entertain and

determine such motion without

requiring the production of the

prisoner at the hearing.

The sentencing court shall not

‘be required to entertain a second

Or successive motion for similar

relief on behalf of the sane

prisoner.

An appeal may be taken to the

court Of appeals froin the order

entered on the motion as from a

final judgment on application for a

writ of habeas corpus.

An application for a writ of

habeas corpus in behalf of a

prisoner who is authorized to apply

for relief by motion pursuant to

this section, shall not be

entertained if it appears that the

applicant has failed to apply for

relief, by motion, to the court

wnich sentenced him, or that such

court has denied him relief, unless

it also appears that the remedy by

motion is inadequate or ineffective

‘to test the legality of his

Getention."

Proof of Service by Mail

State of California )

) ss.

County of Los Angeles )

I, the undersigned, depose and say:

I am employed in the offices of

Messrs. Youngman and Lawlor, attorneys of

record for Petitioner herein;

I am over the age of eighteen and

not a party to the within proceeding;

Our business address is 1801 Century

Park East, Suite 1101, Los Angeles,

California 90067;

On August ig 1978, I served the

foregoing Petition for a Writ of

Certiorari to the United States Court of

Appeal for the Ninth Circuit upon the

United States of America, Respondent

herein, the only party required to be

served,

- by enclosing three (3) true copies

thereof, in a sealed envelope, with air

or a

mail postage thereon, fully prepaid,

addressed to The Solicitor General, 5614

Department of Justice, Washington D.C.

20530, and

- by enclosing three (3) true copies

thereof, in a sealed envelope, with

regular mail postage thereon, fully

prepaid, addressed to the United States

Attorney for the Central District of

California, 312 North Spring Street, Los

Angeles, California 90012, and

- by depositing the said two (2)

envelopes in a United States post office

mail box in Los Angeles, California.

(ole m. Eeber

Carole M. Ekker

Subscribed and sworn to ‘a

before me, at Los Angeles, OFFICIAL SEAL

California, this ¢' day SANDI FLANDERS

NOTARY PUBLIC CALIFORNIA

of August, 1978. PRINCIPAL OFF:CE IN

LOS ANGELES COUNTY

; My Commission Evpires June 17, 1979

SES ee,

Notary Public in and for

said State and County. [SEAL]

a! a