# Petition — Kalav v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1506%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 928 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1506%3A1. Public record. Not legal advice.