Petition — McKenna v. United States

Supreme Gourt, & &,

FILED |

” Dec 6 1978

Supreme Court of the United States

PAISBAEL KOGAN

October Term, 1978

No -7 8-905

UNITED STATES OF AMERICA,

Respondent/Plaintiff,

vs.

HORACE J. McKENNA,

_emeenl

Petitioner/Defendant

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL D. NASATIR of

NASATIR, SHERMAN & HIRSCH

9911 West Pico Boulevard

Los Angeles, California 90035

Telephone - (213) 277-3112

Counsel for Petitioner

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

i

TOPICAL INDEX

Petitioner requests a Writ of Certiorari

to review the orders made by the United

States Court of Appeals for the Ninth

Ge Aaa Ae, Gk

SN eh wedacceucvccses.

i wee eee

rn

Statutes and Constitutional

twee cees

epee eececes

Reasons for Granting the Writ ................

RE REE

I

Il

Il

It is reversible error in the federal courts

for the prosecution to be allowed to call

a witness to testify solely for the purpose

of impeaching the witness’s trial testimony

with a tape recorded conversation, not

subject to cross-examination and not under

oe REGS etek ec cc cece

Mr. McKenna was denied a fair trial and his

right to a jury trial when the trial judge re-

fused to give a limiting instruction instructing

the jury on how it could use the “‘impeach-

ment tape” in determining petitioner’s guilt

or innocence; this error was not cured by

comments of counsel to the jury during

ES,

The mandatory language in Rule 30 of the

Federal Rules of Criminal Procedure requires

a trial judge to instruct the jury on the appli-

cable law after argument of counsel ......

1]

13

ii iii

TOPICAL INDEX TABLE OF AUTHORITIES CITED

Argument (cont’d) Page Cases (cont'd) Page

Holmgren v. United States, 212 U.S. 509,

IV Petitioner was denied a fair trial and his

2 Be BG 9,16

right to a jury trial when the trial court

refused to give ‘““complete”’ instructions

on how the jury should dertermine the

credibility of an “informer” and “‘accom-

Kotteakos v. Superior Court, 328 U.S. 705,

es BREED ov ew Rea ee Kaeo vie 12, 14

SE, Seeds Cee CER Ee ees Cows 14

Medley v. United States, 155 F.2d 857

V___In the federal courts a conviction may not (C.A. D.C. 1946) ow eee cece e cece 12

be based upon uncorroborated testimony

of an admitted accomplice and informer On Lee, 343 U.S. Tats 72 S. Ct. 967 (1952) 6 6 ae 9, 15

testifying under grant of immunity when

the accomplice’s testimony is contradicted People v. Robinson, 61 Cal. 2d 373,

re 15 38 Cal. Rptr. 890 (1964) ww ee eee 15

CN. 555 is FE eo i oe ewes ese 16 United States v. Alsten, 551 F.2d 315

es SUIT cA aKa Kame bene eee 13, 33

United States v. Coppola, 475 F.2d 1153

TABLE OF AUTHORITIES CITED CE SUE sh scelsle se'e ales s.nc0dae- 10, 11

Cases United States v. Gilliam, 484 F.2d 1093

ee ERE ee i cba eee se 8048 eee 11

Bushaw v. United States, 353 F.2d 477

(9th Cir. 1975), cert. denied, United States v. Hibler, 463 F.2d 455

RE ed eee tg ee 10 RR er eee Ree eee ee ee 16

Caminetti v. United States, 242 U.S. 470, United States v. Kemp, 504 F.2d 421

yd es lS: er nee 9, 16 SM WOE fF ch Aw ve sie siete ewans’s 1]

Chapman v. California, 386 U.S. 18 United States v. Kinnard, 465 F.2d 566

Th Meet, See ree 12 ee a oc wa 4 ooo 'g ¥ 0 wa end a's 15

Copeland v. United States, 152 F.2d : United States v. Miles, 413 F.2d 34

WIA OE TE ieee 12 (3rd Cir. 1969) «ss sees eee eee eseeeee. 10

Hooks v. United States, 375 F.2d 212 United States v Pinkney, 551 F.2d 1241

se ne ie Pe eee ee ea 10 (C.A. D.C. 1976)... eee eee eee eee aes 13

iv

TABLE OF AUTHORITIES CITED

Cases (cont'd)

United States v. Rogers, 549 F.2d 490

COA. Pee 6k Wee dies ce meee bake eee

United States v. Shoupe, 548 F.2d 636

SMe 2g : Ten margaret nb | 2 We

United States v. Small, 443 F.2d 497

COG GR OPTED. (6s kewkde esse tee ee

United States v. Washabaugh, 442 F.2d 1127

Can Ge. 1978) a. i oko. a ee

United States Constitution

rit Aeeeiet © oc aks eee ee

ath Assent oe oo oe oe Se

Statutes (United States)

United States Code

Title 18

LY. MOREE R Tee CTS

Statute (California)

Penal Code

EL} } Sewer er rep eo te

10

i]

12

NN NY

15

‘

TABLE OF AUTHORITIES CITED

Supreme Court Rules Page

SENN cee van b eaves csan vases 17

TS eS a 4, 5, 8, 12, 13, 16

ee go ais os oa 6 kc ace o ob ee. 5

Text

Devitt and Blackmar, ‘Federal Jury Practice

and Instructions’ (2d Ed.) .............. 7,14

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. ......

UNITED STATES OF AMERICA,

Respondent/Plaintiff,

VS.

HORACE J. MCKENNA,

Petitioner/Defendant.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the United States Supreme Court, October Term, 1978:

This is a petition of Horace J. McKenna for a Writ of

Certiorari to review the orders made by the United States

Court of Appeals for the Ninth Circuit on January 13, 1978,

denying petitioner’s appeal, and on November 6, 1978,

denying petitioner’s Petition for Rehearing and Suggestion

for Rehearing En Banc, which appeal was sought to review

the order made by the United States District Court, Central

4

District of California, on September 7, 1976, convicting

petitioner of violations of Title 18 U.S.C. §8 371, 472

and 473!.

OPINIONS BELOW

To petitioner’s knowledge there are no official or

unofficial reports of (a) the order of the United States

Court of Appeals for the Ninth Circuit entered on January

13, 1978 affirming petitioner’s conviction on all counts (a

copy of said order has been attached hereto as Appendix

“A” [appendix pp. | - 5] ), or (b) the order filed by the Court

of Appeals for the Ninth Circuit on November 6, 1978 deny-

ing petitioner's Petition for Rehearing and Suggestion for

Rehearing En Banc (a copy of said order has been attached

hereto as Appendix “B’’ [appendix pp. 5 - 7}).

JURISDICTION

1. On June 9, 1976 a three-count indictment was

returned against petitioner alleging violations of Title 18

U.S.C. 88371, 472 and 473.

2. Petitioner was convicted on all counts of the

indictment and sentenced to a total of six years incarcera-

tion on September 7, 1976. Petitioner filed a timely Notice

of Appeal on said date.

3. On January 13, 1978 petitioner’s conviction on

all counts of the indictment was confirmed by the Court of

1 : - ion of counterfeit

S.C. §371 - conspiracy; 18 U.S.C. $472 - possess

Pec reserve notes with intent to defraud; and 18 U.S.C. § 473 - delivery

of counterfeit notes with intent that they be passed into circulation.

an

Appeals for the Ninth Circuit

4. On November 6, 1978 petitioner’s Petition for

Rehearing and Suggestion for Rehearing En Banc was

denied.

5. On November 13, 1978, an Application for Stay

of Mandate was filed with the Court of Appeals for the

Ninth Circuit and, as of this date, has not been ruled upon.

6. There have been no motions for extension of time

within which to file this Petition for Writ of Certiorari.

7. The jurisdiction of this Court is invoked under

Title 28, U.S.C. § 1254(1).

QUESTIONS PRESENTED

I. May a witness be called to testify at a criminal

trial in the federal court, for the sole purpose of introduc-

ing before the jury a prior tape recorded conversation, not

under oath of that witness, when:

A. The prosecution knows, or has reason to

know, that the witness will repudiate the prior conversation

by admitting that the remarks in the conversation were made

but were untrue; and

B. The witness claims that the conversation

occurred when the witness was under the influence of drugs?

Il. Does the refusal of the trial judge to instruct the

jury on the limited purpose that a tape recorded conversa-

tion was admitted require reversal of a conviction when:

A. The tape recorded conversation was not

under oath;

B. The tape recorded conversation was repudia-

din

ted by the witness when testifying;

C. The tape recorded conversation is the

only evidence tending to corroborate the testimony of

an accomplice, the principal government witness; the

accomplice’s testimony implicating petitioner was refut-

ed by the testimony of another admitted accomplice, a

defense witness;

D. The prosecutor argued in closing argument

that the tape recorded conversation corroborated the gov-

ernment’s witness (an accomplice) and constituted the

true version of the offense in question; and

E. The defense requested a “limiting” instruc-

tion?

III. Does the mandatory language of Rule 30 of the

Federal Rules of Criminal Procedure require the reversal

of a conviction when the trial judge refused to instruct the

jury on the law relating to how the jury should weigh the

credibility of an accomplice and informer at the conclusion

of closing argument by counsel and when:

A. The trial judge gave “‘general credibility

instructions” to the jury prior to receiving any testimony;

B. The trial judge gave all remaining “‘instruc-

tions” at the close of final argument by counsel and “‘re-

minded” the jury that instructions regarding the credibility

of witnesses had been given to them before testimony was

received; and

C. The jury was required to judge the credibility

of the government witness’s testimony, an accomplice, as

compared to the testimony of defense witnesses directly

contradicting the government witness?

IV. Are the courts of the United States required

to give instructions informing the jury that the testimony

of an accomplice and informer should be weighed with

greater care than the testimony of an ordinary witness

when the prosecution relies upon the credibility of an

admitted accomplice and informer, testifying under

immunity, whose testimony is directly contradicted by

defense witnesses?

V. May an accused citizen, in the federal courts,

be convicted solely on the testimony of an uncorrobor-

ated admitted accomplice and informer testifying under

grant of immunity when the accomplice’s testimony is

contradicted by the testimony of defense witnesses?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions

are set forth in Appendix ‘‘C”’ [appendix pp. 7 - 9]; they

are:

Fifth Amendment to the United States Consti-

tution;

2. Sixth Amendment to the United States Consti-

tution;

3. Rule 30, Federal Rules of Criminal Procedure;

and

4. Rule 52, Federal Rules of Criminal Procedure.

=

STATEMENT OF FACTS

At trial, the only witness accusing petitioner McKenna

of criminal conduct was Anthony Perkins, an uncorroborated

accomplice, testifying under grant of immunity, who agreed

to testify for the government after charges against him had

been dismissed. Perkins testified that he obtained the coun-

terfeit money, seized when he (Perkins) was arrested. Per-

kins testified that he, along with Dennis Jocque, received

the counterfeit currency at petitioner McKenna’s apartment

where Perkins and Jocque spent three days sorting and “‘doc-

toring” the counterfeit currency. Dennis Jocque, who was

arrested with Perkins, testified that petitioner McKenna was

not the source of the counterfeit currency and that the

currency was not sorted in petitioner McKenna’s apartment.

Dennis Jocque’s testimony was corroborated by Carolyn

Hagan, a girlfriend of petitioner McKenna, who testified

that she was present at McKenna’s apartment at the time

that Perkins testified that he sorted the counterfeit currency

at the apartment and that during that period Perkins was not

at the apartment. Another defense witness, Robert Ball, a

fingerprint specialist for the United States Secret Service,

testified that he did not recover any latent fingerprints of

petitioner from the counterfeit money seized when Perkins

was arrested.

After the arrest of Anthony Perkins, Joyce Turner was

interviewed by deputies of the Los Angeles County Sheriff's

Department. This interview was tape recorded without her

knowledge and appeared to corroborate, in part, Perkins’

testimony concerning the preparation of the counterfeit

money for distribution. Prior to the commencement of trial,

a, se

the government learned that Joyce Turner had repudiated

her statements in the tape recording, claiming that all the

statements on the tape were false and that the statements

had been made when she was under the influence of drugs.

At trial, Joyce Turner was called to testify and was grant-

ed immunity. Joyce Turner admitted making the state-

ments contained in the Moe recording, but she stated that

they were untrue. The government, under the guise of

impeachment, then played the tape recording to the jury.

The defense objected to the procedure of calling Joyce

Turner solely to impeach her and also requested a “‘limit-

ing instruction”’ on how the jury could consider the tape

recording. This limiting instruction was refused, and the

prosecutor argued, in closing argument, that the tape

iecording corroborated the testimony of Anthony Perkins.

Prior to the commencement of testimony, the trial

court instructed the jury on certain general principles of

law by including how the jury should weigh the testimony

of witnesses. The general instructions were not standard

“Devitt and Blackmar” instructions but, rather, a general-

ized version of these instructions. At the conclusion of

closing argument, and over defense objection, the trial

court refused to instruct the jury on how it should weigh

the testimony of an accomplice and informer as set forth

in ‘Devitt and Blackmar”’ and merely referred the jury to

the general instruction on how to weigh testimony given

prior to the receipt of testimony.

REASONS FOR GRANTING THE WRIT _

The prosecution’s case against Mr. McKenna relied

x

solely upon the testimony of Anthony Perkins. This

testimony was contradicted by defense witnesses Dennis

Jocque, Carolyn Hagan and Robert Ball. The tape record-

ed conversation with Joyce Turner was the only additional

evidence tending to corroborate Perkins. This testimony

was received by calling Joyce Turner as a witness solely for

the purpose of introducing the impeachment tape recording.

The decision of the United States Court of Appeals for the

Ninth Circuit allowing this practice, by implication, is in

conflict with the rule prohibiting a witness being called

solely for impeachment in the Third Circuit, Fifth Circuit,

Sixth Circuit, Eighth Circuit, and Tenth Circuit Courts of

i.

on informers and accomplices was directly contradictory

to the requirements stated by this Court in On Lee, 343

U.S. 757, 72 S. Ct. 967 (1952), where this Court held that

an accused is entitled to have the issues submitted to the

jury with careful instructions when the government uses

informers, accessories, accomplices or false friends to make

its case. This Court should also provide guidance under its

supervisory powers to the circuit courts on what instruc-

tions are necessary in this situation.

Petitioner requests this Court to authoritatively con-

strue its decision in Caminetti v. United States, 242 U.S.

470, 37 S. Ct. 192 (1917), and Holmgren v. United States,

212 U.S. 509, 30 S. Ct. 588 (1910), and repudiate the-rule,

adopted by the circuit courts, that these decisions allow the

federal courts to sustain a conviction based solely upon the

Appeals. The ruling by the Ninth Circuit on this issue so

departed from established procedure that this question

should now be decided by this Honorable Court.

The decision of the Ninth Circuit in holding that it

was harmless error to refuse to give a limiting instruction

on the purpose for which the “impeachment” tape could

be received, in a case depending upon the credibility of

defense or prosecution witnesses, appears to be in conflict

with decisions of the United States Courts of Appeals for

the District of Columbia, the Third Circuit, Sixth Circuit,

and Tenth Circuit.

Petitioner requests that this Court seize upon this

opportunity to authoritatively interpret the language in

Rule 30 of the Federal Rules of Criminal Procedure re-

quiring jury instructions to be given at the conclusion of

closing argument. This Court should also exercise its

supervisory powers, and hear this case, to prevent trial

judges from departing {rom this established procedure.

Petitioner contends that the actions of the trial

judge in only giving “general credibility instructions”

uncorroborated testimony of an accomplice.

ARGUMENT

I

It Is Reversible Error In The Federal Courts For

The Prosecution To Be Allowed To Call A Witness

To Testify Solely For The Purpose Of Impeaching

The Witness’s Trial Testimony With A Tape Record-

ed Conversation, Not Subject To Cross-Examination

And Not Under Oath.

At trial, over defense objection, the prosecutor called

Ms. Turner to testify, even though he knew that Ms. Turner

had repudiated the statemenis contained in her tape recorded

conversation. After being granted immunity, Ms. Turner

| os

admitted making the statements in the tape recording but

denied that they were true. The government, under the

guise of impeachment, then played the tape to the jury.”

The government, in closing argument, argued that the

statements in the tape recorded conversation constituted

two events of the case and that the tape recorded conver-

sation corroborated its witness, Anthony Perkins, an accom-

plice. While not ruling on this contention of petitioner, the

Ninth Circuit, by implication, overruled Bushaw v. United

States, 353 F.2d 477, 481 (9th Cir. 1975), cert. denied,

384 U.S. 921, and allowed this practice in direct contradic-

tion to the rule in other circuits. United States v. Miles,

413 F.2d 34, 37 (3rd Cir. 1969); Hooks v. United States,

375 F.2d 212, 214 (Sth Cir. 1967); United States v. Shoupe,

548 F.2d 636, 643 (6th Cir. 1977); United States v. Rogers,

549 F.2d 490, 497 (8th Cir. 1976); and United States v.

Coppola, 475 F.2d 1153, 1158 (10th Cir. 1973).

Petitioner is unaware of any opinion of this Court

allowing the prosecution, in a federal trial, to call a wit-

ness to testify solely for the purpose of introducing a prior

hearsay statement, not under oath and not subject to cross-

examination, in a criminal trial. Petitioner requests that

this Court take this opportunity to set forth a rule pro-

hibiting this conduct on behalf of the government in the

federal district courts. It is submitted that the Fifth Amend-

ment right to a fair trial and the Sixth Amendment rights to

confront and cross-examine witnesses, along with this Court’s

inherent power to supervise the federal courts, requires this

at must be remembered that the defendant's request for a limiting instruction

as to the purpose of the tape was refused by the trial judge.

conduct on behalf of the government to be prohibited and

that petitioner’s conviction be reversed.

Il

Mr. McKenna Was Denied A Fair Trial And His

Right To A Jury Trial When The Trial Judge Re-

fused To Give A Limiting Instruction Instructing

The Jury On How It Could Use The “Impeach-

ment Tape” In Determining Petitioner’s Guilt Or

Innocence; This Error Was Not Cured By Com-

ments Of Counsel To The Jury During Closing

Argument.

At petitioner’s trial, the prosecution played a tape

recorded conversation of Joyce Turner, after she admitted

the conversation, to “impeach” her testimony. Prior to

argument, the defense requested a “limiting” instruction,

but this instruction was not given. The Court of Appeals

for the Ninth Circuit held that it was error not to give the

limiting instruction but then held that this error was cured

by statements of the prosecutor and defense counsel to the

jury during closing argument regarding the purpose of the

limiting instruction.

The decision of the Ninth Circuit, concluding that the

error in not giving the limiting instruction was “harmless,”

was in direct contradiction to the result reached by other

circuits in cases depending upon the credibility of witnesses

for a conviction. United States v. Gilliam, 484 F.2d 1093,

1095-98 (C.A. D.C. 1973); United States v. Small, 443 F.2d

497, 500 (3rd Cir. 1971); United States vy. Kemp, 504 F.2d

421, 423, 424 (6th Cir. 1974); and United States vy. Coppola,

= =

475 F.2d 1153, 1158 (10th Cir. 1973). The decision of

the Ninth Circuit also overruled, by implication, United

States v. Washabaugh, 442 F.2d 1127, 1130, 1131 (9th

Cir. 1971). This Honorable Court should take this oppor-

tunity to clarify the law in this regard within the various

circuits and to affirmatively hold that the failure to give

the limiting instruction on the impeachment tape, affect-

ing petitioner's right to a jury trial, was not harmless

error. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824

(1967).

This Court should also grant certiorari in the instant

case to review the decision of the Ninth Circuit wherein it

concluded that statements of counsel in closing argument

were adequate to instruct the jury on the “impeachment”’

purpose of the tape recording. This language by the Ninth

Circuit is in direct violation of the requirements of Rule

30 of the Federal Rules of Criminal Procedure requiring

the court to instruct the jury on the law and, also, in viola-

tion of case authority. Medley v. United States, 155 F.2d

857, 860 (C.A. D.C. 1946); Copeland v. United States,

152 F.2d 769, 770 (C.A. D.C. 1945). The opinion by the

Ninth Circuit so departed from established procedure that

a hearing should be granted by this Court.‘

3 t should also determine whether the failure to give a limiting

peaien Bonaret gx citizen's right to a jury trial should be —

by the “constitutional” harmless error provisions of Chapman v. Ca on q

supra, or the provisions of Kotteakos v. United States, 328 U.S. 705, .

66 S. Ct. 1239 (1946)

4 cutor, in arguing to the jury, argued that the tape record-

- a haan the truth in the case, was consistent with a

testimony, and could be believed by the jury in its consideration of the case.

— | >s—

Ill

The Mandatory Language In Rule 30 Of The Feder-

al Rules Of Criminal Procedure Requires A Trial

Judge To Instruct The Jury On The Applicable Law

After Argument Of Counsel.

It is undisputed that Rule 30 of Federal Rules of Crim-

inal Procedure requires the trial judge to instruct the jury on

the law applicable to the case at the conclusion of counsel’s

closing argument. In the instant case, the trial court had

previously instructed the jury, prior to the receipt of testi-

mony, On general principles regarding how the jury should

determine the credibility of witnesses. When the jury was

instructed after closing argument, over defense objection,

the trial court merely referred the jury to the previous

instructions given to it prior to the receipt of testimony.

The Court of Appeals for the Ninth Circuit concluded that

this was harmless error.

It is the contention of petitioner that the guilt or

innocence of petitioner depended upon how the jury

viewed the credibility of Anthony Perkins. At the conclu-

sion of evidence and argument, the jury was instructed on

all areas of the law except credibility, the area most critical

to the defense. It is the contention of the defense that the

refusal to give credibility instructions at this time denied

petitioner his right to a jury trial. See United States v.

Pinkney, 551 F.2d 1241, 1245 (C.A. D.C. 1976); and

United States v, Alsten, 551 F.2d 315, 319 - 321 (C.A. D.C.

1976). There is obviously a conflict in the circuits on this

point, and for that reason, this Court should grant a hearing

in this matter.

Ye

The decision of the Ninth Circuit in holding that this

error under the facts of this case was “harmless”’ also appears

to be in conflict with this Honorable Court’s opinion in

Kotteakos v. Superior Court, supra, 328 U.S. at 764, 76S,

where this Court intimates that there is a different “harmless

error’ standard where conduct is a departure from a constitu-

tional norm or a specific command of Congress.

IV

Petitioner Was Denied A Fair Trial And His Right

To A Jury Trial When The Trial Court Refused To

Give ‘‘Complete”’ Instructions On How The Jury

Should Determine The Credibility Of An “Informer”

And “Accomplice.”

Prior to the receipt of testimony, the trial court gave

“general” instructions.° The defense requested Devitt and

Blackmar, FEDERAL JURY PRACTICE AND INSTRUCTIONS

(2d Ed.) numbers 12.02 and 12.04. These instructions were

refused. The general instructions given prior to the receipt

of testimony did not instruct the jury that it should view

the testimony of an interested witness or informer with

greater care than it should view the testimony of an ordi-

nary witness, and the instructions given did not instruct

the jury that Mr. McKenna could be convicted on the

unsupported testimony of an accomplice only if the jury

believed the accomplice’s testimony beyond a reasonable

doubt. The Ninth Circuit concluded that the instructions

SThe court instructed as follows: “You should consider the status of a witness.

If the witness is an informer for the government or an rape or participant

in the commission of the crime charged, you should view such testimony con-

scientiously and weigh its probative value with great care.”

ee

given by the trial judge were satisfactory.

This conclusion by the Ninth Circuit is in direct con-

flict with this Honorable Court’s opinion in On Lee, 343

U.S. 757, 72 S. Ct. 967, 973 (1952), where this Court held

that a defendant is entitled, in a case involving informers,

accessories, accomplices or false friends, to have the issue

submitted to the jury with careful instructions. See also

United States v. Kinnard, 465 F.2d 566 (C.A. D.C. 1972),

This Honorable Court should grant petitioner a hearing to

settle this issue within the circuits and to eliminate the

Ninth Circuit’s apparent conflict with this Honorable Court

on this issue.

V

In The Federal Courts A Conviction May Not Be

Based Upon Uncorroborated Testimony Of An

Admitted Accomplice And Informer Testifying

Under Grant Of Immunity When The Accomplice’s

Testimony Is Contradicted By Defense Witnesses.

Petitioner’s conviction in the trial court rested solely

upon the testimony of Anthony Perkins, an admitted ac-

complice and informer testifying under a grant of immunity.

Numerous state courts, including California, do not allow a

conviction to rest on this evidence.® The federal courts

have interpreted past decisions of this Honorable Court as

allowing a conviction on the uncorroborated testimony of

an accomplice. See United States v. Alsten, 551 F.2d 315,

319 - 320 (C.A. D.C. 1976).

®See California Penal Code § 1111; People v. Robinson, 61 Cal. 2d 373,

38 Cal. Rptr. 890 (1964)

ay

Petitioner contends that this rule was arrived at in

the federal courts because of an improper reading of

Holmgren v. United States, 212 U.S. 509, §23, 30 S. Ct.

588 (1910), and Caminetti v. United States, 242 U.S. 470,

495, 37S. Ct. 192 (1917). See United States v. Hibler,

462 F.2d 455 (9th Cir, 1972), Judge Anderson concurring,

463 F.2d at 462.

It is respectfully submitted that this Honorable Court

should take this opportunity to announce the ruling in the

federal courts, under this Court’s supervisory powers, that

the conviction of an accused citizen may not be sustained

on the uncorroborated testimony of an accomplice.

CONCLUSION

Petitioner was convicted by a jury whose task it was

to decide whether to believe the accomplice, Anthony

Perkins, or defense witnesses. A prosecution witness was

called solely for the purpose of allowing impeachment

material to be placed before the jury. A requested limiting

instruction, as to the impeachment material, was refused by

the trial judge. The jury was not instructed on how it

should determine the credibility of witnesses at the conclu-

sion of argument, as required by Rule 30 of the Federal Rules

of Criminal Procedure, and as requested by counsel. Incom-

plete instructions on “accomplices” arid “informers”’ were

given prior to the receipt of testimony. The trial court, and

the United States Court of Appeals for the Ninth Circuit in

upholding petitioner's conviction, as set forth in this Petition

for Writ of Certiorari, made rulings (1) conflicting with those

of other circuits; (2) in direct conflict with opinions by this

a =

Honorable Court; and (3) in departure from established

precedent. These rulings bring this case clearly within

Rule 19, Supreme Court Rules, Title 28 U.S.C., and for

that reason, it is respectfully requested that this Honor-

able Court grant a hearing on petitioner’s matter and

resolve these serious problems affecting the federal judi-

ciary.

Respectfully submitted,

MICHAEL D. NASATIR

of NASATIR, SHERMAN &

HIRSCH

Counsel for Petitioner

INDEX TO APPENDIXES

“A” Order of Affirmance in the United

States Court of Appeals for the Ninth

Circuit, tiled January 13, 1978 ...... eae,

“BB” Order denying Petition for Rehearing,

etc , in the United States Court of Appeals

for the Ninth Circuit, filed November 6,

SRE - we i cielo ORS MCT hos Ree as ee eek

“Cc” Constitutional and Statutory Provisions

Involved HCPC eh AEN hea

APPENDIX “*A”’

ORDER OF AFFIRMANCE

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. HORACE J. MCKENNA, Defendant-Appellant.

No. 76-3029

[Memorandum Filed January 13, 1978]

Appeal from the United States District Court for the

Central District of California

Before: CHAMBERS, GOODWIN and KENNEDY, Circuit

Judges.

Horace McKenna appeals his convictions by a jury of

conspiracy, a violation of 18 U.S.C. § 371; possession of

counterfeit federal reserve notes with intent to defraud, a

violation of 18 U.S.C. § 471; and delivery of counterfeit

notes with intent that they be passed into circulation, a

violation of 18 U.S.C. 8472. We affirm.

The primary prosecution witness was Anthony Perkins,

a cousin of appellant, who had been granted immunity in

exchange for his testimony. In substance, Perkins testified

that: McKenna had contacted him and offered him $10,000

in counterfeit bills if he would assist in McKenna’s scheme

to pass approximately $50,000 in worthless notes; it was

McKenna’s plan to have three individuals, one of them

Perkins, pass the money at various amusement parks in

the Los Angeles area; Perkins eventually agreed and spent

three days in McKenna’s apartment preparing the bills for

'N

Appendix

distribution. On November 26, 1975, Perkins and several

associates were arrested in Disneyland after cashing several

counterfeit notes. Following his arrest, Perkins became a

government informer. At their request, he made several

telephone calls to McKenna which were taped. In June of

1976, McKenna was indicted for his connection with the

counterfeit federal reserve notes.

To bolster the testimony of Perkins, the government

called Joyce Turner, the wife of a friend of McKenna. The

district court granted her immunity after she refused to

testify. On direct examination she denied having seen or

heard of any counterfeit money in McKenna’s apartment.

To impeach her testimony, the government played a tape

of her statements to a police officer implicating McKenna

in the counterfeiting operation.

On appeal, appellant argues eight grounds for reversal.

First, he challenges the instruction on the credibility of

accomplice and informant testimony. Prior to the govern-

ment’s presentation of its case, the district court gave pre-

liminary instructions to the jury, including one cautioning

them about testirnony from a government informer or a

participant in the crime charged. Despite appellant’s re-

quest, the district court did not include that instruction

among those it gave the jury after closing arguments. Ap-

pellant contends that the district court violated Rule 30,

Federal Rules of Criminal Procedure, by failing to repeat

the instruction after the evidence had been presented. We

agree that the letter of Rule 30 was violated. However,

this court has held that failure to comply with Rule 30 is

reversible error only if appellant is thereby prejudiced. See

United States v. Hermosillo-Nanez, 545 F.2d 1230, 1233

Appendix

(9th Cir. 1976), cert denied, 429 U.S. 1050 (1977). We

are unable to conclude that appellant has been prejudiced.

The trial was relatively simple. The instruction was given

at a time calculated to assist the jury in evaluating the

testimony of Perkins. In addition, defense counsel in his

closing argument adequately refreshed the jury’s recollec-

tion of the instruction. There was no evidence of jury

confusion; they made no request for additional instruc-

tions. Appellant argues, however, that the preliminary

instruction was prejudicially deficient even if failure to

repeat it was not reversible error. We disagree. Although

concise, the instruction correctly stated the law.

The second error raised by appellant is the failure

of the district court to give a requested limiting instruc-

tion prohibiting the jury from considering the taped

statements of Mrs. Turner as evidence of the content of

those statements. Rule 105, Federal Rules of Evidence,

provides that when evidence is admissible for only a limit-

ed purpose—such as this impeachment evidence —‘‘the

court, upon request, shall restrict the evidence to its

proper scope and instruct the jury accordingly.”” We

think it would have been better for the district court to

have given a limiting instruction as requested. However,

the failure to do so is not reversible error in this case.

The government, when introducing the evidence, made

it clear that the purpose of the evidence was to impeach

Mrs. Turner’s testimony. In addition, both sides told

the jury during closing argument that the tape was intro-

duced for this limited purpose. Finally, there was no

evidence that the jury was confused. Compare United

States v. Washabaugh, 442 F.2d 1127, 1131 (9th Cir.

Appendix 4.

1971). We therefore conclude that failure to give the re-

quested instruction was harmless error under Rule 52(a),

Federal Rules of Criminal Procedure. See Thompson vy.

United States, 389 F.2d 37, 38 (9th Cir.), cert. denied,

391 U.S. 903 (1968).

The third alleged error was the failure to give an

instruction that a conviction cannot stand on the un-

corroborated testimony of an accomplice. That is not

the law of this circuit. See United States v. Turner, 528

F.2d 143, 161 (9th Cir. 1975), cert. denied sub nom,

Hackett v. United States, 429 U.S. 837 (1976). It was

properly refused.

As the fourth ground for reversal, appellant argues

that the admission into evidence of portions of the taped

phone conversations between appellant and Perkins violated

his fifth amendment right to remain silent and his sixth

amendment right to counsel. This argument has no merit.

Parenthetically it should be noted that the conversations

occurred before appellant had been indicted and before

the focus on him had shifted from investigation to accusa-

tion in nature. See Brewer v. Williams, 97 S. Ct. 1232,

51 L. Ed. 2d 424 (1977); United States v. Massiah, 377

U.S. 201 (1964).

The fifth ground concerned Perkins’ lie to appellant

during a taped phone conversation that appellant’s attor-

ney had told Perkins’ lawyer that appellant was the source

of the counterfeit notes. Appellant asserts that his sixth

ainendment right to counsel was thereby violated. The

intrusion occurred too early in the investigation to be a

violation of the sixth amendment. See Brewer v. Williams,

supra.

Appendix

The sixth ground for reversal pertains to the prosecu-

tor’s statement in closing argument that the defense wit-

nesses were “pathetic.” Appellant argues that this comment

was prejudicial. That does not prove that it was inappro-

priate.

Appellant’s seventh ground for reversal is the district

court’s refusal to permit the defense to introduce a prior

consistent statement of a witness into evidence. The dis-

trict court properly exercised its discretion in keeping the

evidence out.

Finally, appellant challenges the refusal of the district

court to grant a continuance. The granting of a continuance

rests in the sound discretion of the district court. See United

States v. Michelson, ..... oe: ee (9th Cir. 1977) (slip opinion

pp. 1986, 1991). There was no clear abuse of that discretion

here.

AFFIRMED.

APPENDIX “B”’

ORDER DENYING PETITION FOR REHEARING, ETC.

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Appellee, v. HORACE

J. MCKENNA, Appellant.

No. 76-3029,

Appendix 6.

{Filed November 6, 1978]

Appeal from the United States District Court for

the Central District of California

Before: CHAMBERS, GOODWIN, and KENNEDY, Circuit

Judges.

On petition for rehearing the defendant again contends

that the error of the district court in refusing a timely request

for a limiting instruction was error per se which requires rever-

sal and a new trial, no matter how copious the evidence of

guilt.

The district court erred, and it should not fail to give

limiting instructions when appropriate in the future. The

receipt in evidence of a tape-recorded statement to impeach

a witness virtually always must be accompanied by a caution-

ary instruction to the jury that the tape is received for

impeachment only and that the jury is not to consider the

statement as proof of the substantive facts in issue. We

also recognize that in many cases the omission of the caut-

ionary instruction would require reversal. But in this case

we have again reviewed the evidence and it is plain that to

recycle this case would be a triumph of form over substance.

It is difficult to imagine how a jury could have reached a

different verdict, no matter how the trial judge instructed.

The petition for rehearing included a suggestion for

rehearing en banc. At the request of the panel, a response

to the petition with suggestion was filed. The panel has

voted to deny the petition for rehearing and to reject the

suggestion for a rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc, «1d no judge of the court has requested

Appendix ws

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 rehearing en banc is rejected.

APPENDIX “C”’

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution:

Amendment V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case \o be a witness

against himself, nor be deprived of life, liberty or

property without due process of law; nor shall private

property be taken for public use, without just compen-

sation.

Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

Appendix 8.

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the accu-

sation; to be confronted with the witnesses against

him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the assistance of

counsel for his defense.

Statutory Provisions

Federal Rules of Criminal Procedure

Rule 30, Title 18

At the close of the evidence or at such earlier

time during the trial as the court reasonably directs,

any party may file a written request that the court

instruct the jury on the law as set forth in the request.

At the same time copies of such request shall be fur-

nished to adverse parties. The court shall inform

counsel of its proposed action upon the request

prior to their argument to the jury, but the court

shall instruct the jury after the arguments are com-

pleted. No party may assign as error any portion

of the charge or omission therefrom unless he objects

thereto before the jury retires to consider its verdict,

stating distinctly the matter to which he objects and

the grounds of his objection. Opportunity shall be

given to make the objection out of the hearing of the

jury, and on request of any party, out of the presence

of the jury.

Appendix

Federal Rules of Criminal Procedure (cont'd)

Rule 52, Title 18

(A) Any error, detect, irregularity or variance

which does not aftect substantial mghts shall be dis-

regarded

(B) Viain errors or detects affecting substantial

rights may be noticed although they were not brought

to the attention of the court.

STATE OF CALIFORNIA )

) 8s

County of Orange )

I, the undersigned, ) 1am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, over the age of

eighteen years and not a party to the within action or proceeding; that

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

that on DECEMBER , L served the within PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (United States of America vs Horace J McKenna) 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 addresses as follows:

United States District Court United States Attorney

For the Central District of California For the Central District of California

United States Courthouse United States Courthouse

312 North Spring Street 312 North Spring Street

Los Angeles, California 90012 Los Angeles, California 90012

(1 Copy) (2 Copies)

United States Court of Appeals Solicitor General of the United States

For the Ninth Circuit U.S. Department of Justice

Court of Appeals & Courthouse Bldg = Washington, D. C. 20530

Seventh & Mission Streets (3 Copies)

San Francisco, California 94101

(1 Copy)

I declare under penalty of perjury a the foregoing is true and correct,

Executed on DECEMBER uf 1978, at HUNTINGTO

D A. Standefer

41 Copies to U, §. Supreme Court, U.S. Supreme Court Building, Washington, D. C,

Zip Code 20543

Dean-Standefer, 326 Main St., Huntington Beach, Ca. 92648

(714) 536-7161