Petition — Henderson v. United States

Court, U. &;

ILED

APR 12 1979

, JR., CLERK

IN THE

Supreme Court of the United States

OctosBeR TERM, 1978

Ne 78-1563

HERBERT BERNARD HENDERSON, M.D., Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY PAUL

Route 4, Box 417-B

Chapel Hill, N.C. 27514

(919) 942-3676

Attorney for Petitioner

Paess oF Bynon 8S. ADAMS PRINTING, InCc., WASHINGTON, D. ©.

Page

EE OE 1

UR au ss boeeaecceevesssiccceece 2

QuesTIONS PRESENTED ..... 0S SEE A 2

STATEMENT OF THE CASE ..............cccccccess ix es

ALLEGATIONS OF THE INDICTMENT .............0e0000 3

sacle ce ness sesscccces +

CC 7

TESTIMONY ON THE Issue oF THE Court DenyineG TO

DEFENDANT THE Ricut to Catt His Lawyer As A

et wane eceses 8

REASONS FoR GRANTING THE WRIT ..............eee0- 12

1. The Court of Appeals finding that the evidence

was sufficient as to knowingly causing the United -

States mails’ utilization is in conflict with the de-

cisions of other circuits and a mistake of law and

re eee 12

2. The trial court refused to allow the petitioner

to call as a material witness his lawyer who could

give exculpatory evidence, and punished the pe-

titioner for exercising his Fifth Amendment rights,

and misapplied the law and facts as to Federal

Rules of Criminal Procedure 16(b), and the Court

of Appeals did the same. The decision is in conflict

with the law of this Court and with other cireuits . 21

CoNCLUSION ....... URE REL eats on hehe wded ¢6esceewe 38

AppPENDIXxX (OPINION AND JUDGMENT BELOW) ......... la

ii CITATIONS

CasEs: Page

Brady v. United States, (C.C.A.), 24 F.2d 399 ....... 15

Couch v. United States, 409 U.S. 322, 93 S.Ct. 611

| Stk SS ere ey i ee ee re ery oe ee 26

Dearinger v. United States, 344 F.2d 309, (9th Circuit,

SE 5 Gk Garb adib in dack dk oe hee Rk SARA Kea Owes. 0 21, 23

Factor v. C.1.R., 281 F.2d 100 (9th Cireuit, 1960) .... 18

Fisher v. United States, 96 S.Ct. 1569 (1976) ........ 27

Glasser v. United States, 314 U.S. 60, 62 S.Ct. 457.

CE. AEG band ok 00% bhbs eRe TES RUE SAS heres 21, 24

Glavin v. United States, 396 F.2d 725 (9th Cireuit,

iia dived dana Ohiccdas cach ects eeins Sans 21

Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007

EE 5b iasck ble = pains tage hee ea an eas 8 aes

Kroungold v. Triester, 521 F.2d 763, (3d Circuit,

SD ok 5 sD A means ¥ a4 kn Soap e wo dhs bee orn adees 4 22

Mackett v. United States, 90 F.2d 462, (7th Circuit,

SN Gch oe bakes tea ka ened eae Oona ee ee es 15, 19

Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358,

Lo Re re OPT err tT Pr reer eee 13

. Prudhomme v. Superior Court, 2 Cal.3d 320, (1970) . .29, 30

Quock Ying v. United States, 104 U.S. 417, 11 8.Ct. 733

SUED. waewcd cas cach vous eeien ene dase bneee 6ai.s 18

Rosenberg v. United States, 120 F.2d 935, (10th Cir-

i SED cc odnane ch eswon ce natn ase Cae nes see 17, 20

Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790 ...... 25

United States v. Alu, 246 F.2d 29, (2d Cireuit, 1957) .. 22

United States v. Baker, 50 F.2d 122, (2d Circuit,

NED ac ah beaec cd bao none ee eked ake 17, 19, 20

United States v. Brown, 501 F.2d 146, (9th Circuit,

1974), reversed on other grounds, United States

v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, (1975) .. .25, 26,

28, 29, 37

United States v. Browne, 225 F.2d 751, (7th Circuit,

a Rk Re a Se 16, 19,20

United States v. Clausell, 389 F.2d 34, (2d Circuit,

| SPP rrrT freee ye rrcr eT t TT tay ey

United States v. Dondich, 506 F.2d 1009, (9th Circuit,

error rr Ter erp ny T Corer yy rrr Erte 14, 15

United States v. Ellicott, 336 F.2d 868, (4th Circuit,

SE cs Sawsuc hao asedee tasseee seen veneaeennes

United States v. Fratello, 44 F.R.D. 444, (S.D.N.Y.,

| PPoreerer rT ee rreT rye rT re tr ete

Table of Citations Continued ili

. Page

United States v. Maze, 414 U.S. 395, 94 S.Ct. 645

RR ein as Pees tiie Sema ie 13, 14

ek ee rh ne eeiatac res 21

United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160,

a otal eae et a 25, 26, 27, 28, 33, 37

nited States v. Pepe, 247 F.2d 838, (2d Cireuit, 1959) 22

ee hee v. Skillman, 442 F.2d 542, (Sth Circuit,

United States. Sta, BA HSM, (aah inci,

v

Beit ae Cn Neen ea Seri ae ody 19,

“an v. Wright, 480 F.2d 1181, (D.C. Girenjt,. “i

Williams v. Florida, 309 W'S. 73101020125 2777 345% 33

Wong Ken Foon v. Brownell, 218 F.2d 444, (9th Cir.

MM ic lt ee cin) ee 18

MISCELLANEOUS:

Federal Rules Criminal Procedure 16(b) ..28, 31, 34, 35, 36

Moore’s Federal Practice, Vol. 8 i

SRG enna ee ne concent 28

IN THE

Supreme Court of the liniteh States

APRIL TERM, 1979

No.

HERBERT BERNARD HENDERSON, M.D., Petitioner,

Vs

UNITED STaTEs OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner Herbert Bernard Henderson, M.D.,

respectfully prays that a writ of certiorari issue to re-

view the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this

proceeding on January 30, 1979.

OPINION BELOW

The opinion of the Court of Appeals, not reported,

appears in the Appendix hereto. No opinion was ren-

dered by the District Court for the Northern District

of California or by the Court on the Petition for

Rehearing.

2

JURISDICTION

The judgment of the Court of Appeals for ~ N

Circuit was entered on January 30, 1979. A timely Be 2

tion for rehearing was denied on March 12, gel —

Court’s jurisdiction is invoked under 28 U.S.C. ;

1254(1).

QUESTIONS PRESENTED

1. Whether the Court below was in contlict va

other circuits in its determination of the ricer a

evidence on the question of causing a mailing and 1 the

Court’s standard relieved the Government of —

each and every element beyond a reasonable doubt.

2. Whether the Court below denied to petitioner the

right to call a material witness and punished the peti-

tioner for the exercise of Fifth Amendment rights.

STATEMENT OF THE CASE

The defendant, HerserT BerNARD HENDERSON, is a

medical doctor who was indicted by a Grand J * in

the United States District Court for the phi dan “a

trict of California, filed on November 8, 1975. sgevins :

ant was originally indicted on 17 counts of ana _

violation of Title 18, U.S.C., 1341 (use of the er ‘

States mails in a scheme to defraud) which =

counts, by the time of trial had on motions of t : a

ernment been reduced to 9 counts on which the de

fendant went to trial. (C.R. 1; the counts were sane

bered in the copy of the indictment as reflected by :

court’s interlineations). (C.R. denotes Clerk’s a

R.T. denotes Reporter’s Transcript ; and Ex. deno :

exhibits). Defendant went to trial which a

on October 17, 1977, before a Jury in the alge :

the Honorable Charles B. Renfrew, Trial Judge. ‘ : és

140). The defendant was convicted on all 9 counts 0

3

November 17, 1977. (C.R. 206). A motion for a new

trial was argued and denied. (C.R. 392). Notice of ap-

peal was timely filed on February 1, 1978 (C.R. 394).

The Court of Appeals for the Ninth Circuit by Memo-

randum filed January 30, 1979 affirmed the petitioner’s

conviction. On February 9, 1979, the petitioner moved

for a rehearing, which was denied on March 12, 1979.

ALLEGATIONS OF THE INDICTMENT

The indictment alleges that the defendant was a.

medical doctor who entered into a scheme with attor-

neys to provide inflated bills and medical reports show-

ing a course of treatment for patients under treatment

having been involved in automobile accidents, and

which said treatment had not, in fact, been given; that

said inflated medical bills and reports were for the pur-

pose of getting settlements from insurance companies

which would base the settlements upon the doctor’s

evaluation of the severity of the injuries as expressed

in the inflated medical reports and bills. It was alleged

that as a part of the scheme, the defendant employed

the United States mails in the Northern District of

California for the purpose of sending these medical

bills and reports to insurance companies, and did know-

ingly cause the use of the United States mails by at-

torneys for the purpose of furthering the scheme to

defraud. The indictment did not charge that the acci-

dents in question were fake accidents, or that the pa-

tients were not, in fact, injured, but charged that the

amount of the bills and the treatment given had been

inflated by the defendant.

4

THE PROSECUTION CASE

The prosecution introduced the following evidence

as to each count:

‘ount OnE: Ruth Birdie Johnson following an ac-

pris was treated by defendant, who referred ap tad

tient to Allen Jacobs, an attorney, to pursue her ¢ we

for injuries (R.T. 1246). Jacobs sent a medical aes

(Exhibit 1-B) and a medical Bill (Exhibit 1- 2 :

Murphy Cheatham, claims representative zo4 ate

Farm Insuranee Company. The report and bi were

from defendant. The medical bill for J ohnson poelyn

the sum of $150 and, among other things, cei :

nerve block and physiotherapy. Johnson was ona

by other physicians as well, and the case eS y

settled for $7,500. However, Cheatham indicate ne

he did not rely upon the defendant’s medical bil i :

excluded it from consideration in the settlement. : : ,

1208). Cheatham testified that he received the . os

medical report from Jacobs by mail. (R.T. oe - oA

son testified that she only went to see the defen 0

onee, (R.T. 1248) and did not receive a nerve block or

any physiotherapy (R.T. 1251).

Counts Two anp THREE: William Murphy, a oe

representative for State Farm Insurance eee

14 years, (R.T. 1538), testified that he partially han io

the injury claim of Emet Davis for about a mon ;

(R.T. 1540) and in connection with this claim, got

from Allen Jacobs Dr. Henderson’s medical hs

(Exhibit 6-C) and bill (Exhibit 6-D) which showe l as

part of the treatment a nerve block and several —

tions. On the matter of mailing, he testified that he =

received these documents ‘‘in the mail from A m

Jacobs (R.T. 1548). On cross-examination, however, he

testified that he had not received the documents per-

~ il

4)

sonally, but received from from the “mail room”’ (R.T.

1557). In answer to questions posed by the court, he in-

dicated that the envelope had a cancelled stamp on it

(R.T. 1558). The receipt of the medical bill and re-

port is the gist of Count Two. Murphy did not settle

the case, but referred it to another adjuster for settle-

ment (R.T. 1553). Edward Teeling testified that he

settled the Emet Davis case after Murphy could not

get the medical report and bill, but that he subsequently

got them from Allen Jacobs (R.T. 1560). He mailed

the settlement draft to Jacobs and subsequently re-

ceived a release back in the mail (R.T. 1566). The send-

ing of the draft is the gist of Count Three. Davis testi-

fied that while being treated by the defendant, he never

received a nerve block (R.T. 1592), and he never re-

ceived the injections (R.T. 1595).

Count Four: Erie Jensen was a claims adjuster for

California State Automobile Association, and handled

the claims of Joyce English, Joyce Walker, George

Walker, and Denise Bernard. He received Dr. Hender-

son’s medical report (Ex. 8-B) and bill (Ex. 8-C) on

Denise Bernard from Allen Jacobs (R.T. 1305). Denise

Bernard testified that she did receive injections from

the doctor and she did not remember how many visits

that she made, but that the visits could have been more

than 20. Since this testimony was contradictory to her

Grand Jury testimony, the prosecution was allowed to

impeach the witness by reading her Grand J ury testi-

mony, in which she indicated that she did not receive

a nerve block, received no injections, and went to the

doctor no more than 4 or 5 times, (R.T. 1494-1536). On

the matter of mailing, Jensen testified that he was sent

the medical report and statement by Allen Jacobs by

mail (R.T. 1305).

6

Counts Five aAnp Six: Bessie Dean Tutt canst

that she was claims representative for State erect

surance Company for 23 years (R.T. stones : sie

the claim of Alberta Jackson (R.T. 90 yo

represented by Attorney ve J pesca on

»eived from Jacobs Dr. Henderso

(Ex. 23-D) and report (Ex. 23-C) nit onsen Mee ne

a ili hat her com -

issue of mailing, she testified t ,

perce these items from pores a se ea

This was the gist of Count Five. she s :

pacts to Jacobs by mail and got the release —

(R.T. 919). This is the gist of Count Six, Alber “ a 7

“a testified that she did not receive certain treatme

reflected on the bills (R.T. 956-960).

Counts SEVEN AND Ercut: Isadore a

testified that he was pee ch atageseei ; > Aone

Farm for 20 years, and handle » ele n i

Everett, Marlon Washington, Farvin : - 4

Earnest Andrews. He received from Jaco : va

ant’s reports and bills on each of the ¢ aim

gests mailing, Sanchez testified ay nga va

amination that the medical reports and i eg

“mailed to him’ by Jacobs, (R.T. 1020) ; = neo

examination, he acknowledged that the ager —

and bills had been received by somebody else p

his getting the file and that the file does not reflect |

who received them. In an effort to show ee ee

indicated that the documents were creased (R.T. sont

1053) and finally admitted that he a _ i

cnowledge concerning mailing (R. 7 . The

pei of aes reports and bills constituted the gist of

Count Seven. ;

her adjuster by th

The case was assigned to anot ; r

name of Vanderberg for settlement. Vanderberg testi

7

fied that he received the ease after somebody else had

been handling it (R.T. 1075). He subsequently settled

the case and mailed the draft and releases to Jacobs

(R.T. 1079). This mailing constitutes the gist of Count

Kight. Earnest Andrews testified that he did not re-

ceive certain treatment indicated on the bill (R.T.

1110). Georgia Everett testified that she did not receive

certain treatment indicated on her bill (R.T. 1136-

1149). Earvin Fields testified that he was treated by

Dr. Henderson, but that he never received an injection

as indicated on the bill (R.T. 1361).

Count NINE: Robert G. Sherman testified that he

was a claims adjuster for California State Automobile

Association and handled the claim of Florence and

Mark Andrews. These claimants were represented by

Allen Jacobs (R.T. 1725). Jacobs sent him medical re-

ports and bills from the defendant (Ex. 41-C. D, E, F).

On the matter of the mailing, he testified that he re-

ceived the medical reports and bills through the ‘U.S.

mail’? (R.T. 1727). The case was never settled and

there was nothing in the file to indicate that a lawsuit

had been filed and the statute of limitations had run on

the claim (R.T. 1734-1735). Florence Andrews testified

that she and her son, Mark, did not receive certain

treatment indicated on the bills (R.T. 1915-1917).

THE DEFENDANT'S CASE

The defense case consisted of evidence in support of

the defense contentions that the medical reports and

bills were not inflated and that the treatment reflected

by the bills were, in fact, given. The defendant so tes-

tified in his own defense (R.T. 2497-2641). Other office

personnel of defendant, principally Melvy Townsend,

also so testified (Melvy Townsend R.T. 2175-2188, 2358-

8

2409). The defense also contended that the prosecu-

tion was racially inspired, but none of the evidence on

either side of this issue is being set forth because it is

not relevant to any points raised on appeal.

TESTIMONY ON THE ISSUE OF THE COURT DENYING TO

DEFENDANT THE RIGHT TO CALL HIS LAWYER AS A

WITNESS

Since the issue of use of defendant’s lawyer as a

witness is seriously raised by this Petition, the evidence

bearing on that issue is set out below in some detail.

While the witness Emet Davis (Count Two) was on

the stand, and under cross-examination by counsel for

defendant, there was marked for identification what

purported to be 3 prescription receipts (Ex. 11, 12, 13)

in order to refresh the witness’ recollection as to

whether or not he had prescriptions filled which had

been given to him by the defendant (R.T. 1638-1646).

During the course of such examination, it was discov-

ered that the purported receipts were irregular in that

though they were for dates several days apart, two of

them bore the same receipt number thereon. Following

this discovery, the court ordered a hearing in the ab-

sence of the jury in order to Cetermine the circum-

stances under which such purported receipts were cre-

ated. During such session, the pharmacist, Simon

Liebman, testified substantially as follows: that these

receipts were recently made and resulted from a phone

eall asking for receipts for those particular dates in

April, May and June (R.T. 1759); that the receipts

were prepared at the request of someone from the de-

fendant’s office; that he did not cheek the underlying

records to see whether or not a prescription was filled

on those dates (R.T. 1751); that he had subsequently

ee

9

checked his records and could find no record of pre-

scriptions having been actually filled for Emet Davis

(R.T. 1752-1753) ; that the person calling did not say

why they needed the receipts (R.T. 1760) ; that he did

not know the reason why the receipts were being re-

quested so he made out three receipts as requested;

that his receipts are in triplicate form and he merely

took one form and made out a separate receipt on each

of the three parts.

Walter R. Ems testified substantially as follows:

that he was a pharmacist, also employed by the same

drug company; that he received a telephone call from

someone identifying himself as Dr. Henderson and in-

dicated that he was sending someone over to pick up

some receipts and that ‘‘there should also be some

copies of the prescriptions (R.T. 1782) ; that he looked

around and said ‘‘T see something here for Davis—

three receipts’? (R.T. 1970-1971) ; that the doctor then

said, ‘‘that’s what they are”; that he called to the atten-

tion of the doctor the fact that the receipts bore the

vear 1977, and the doctor said that this was an error

and that it should be 1973, and for him to make the

change (R.T. 1970) ; that he then wrote out three new

receipts with the same dates and therefore ended up

with six ‘‘receipts’? (the other three receipts were

given court’s Exhibit No. 2, 3 and 4 for identification) ;

that the defendant’s daughter came in just before eclos-

ing time and picked up the receipts; that she came back

in and said that she had spoken with her mother and

that she didn’t think this is what was wanted; that he

answered that he didn’t know where Sam had looked

up the records, and he couldn’t give her any more in-

formation because he had no way of looking them up;

10

that she then left with the documents which he had

previously ‘given her.

Pamela Henderson Morgan was called as a witness

by the court and testified substantially as follows: that

she was the daughter of the defendant, and that she

went to L & L Pharmacy with her mother to pick up

some documents at the request of her father; that the

pharmacist gave her three pieces of paper in one hand

and three pieces of paper in the other and that she

took them back to her mother who said, “I’m not sure

this is what we want. Go back in and ask if there is

anything else, any prescriptions, or something, or a

record of it’’. (R.T. 1801). So she went back in and

the druggist told her that he knew nothing about this

because Mr. Liebman was not there. The next morning,

as she was walking in the hall with her mother, she met

Mr. Berman (counsel for the defendant), who was

moving very fast into court, and she saw her mother

give the documents to Mr. Berman and say “This is

what the druggist gave us’’ (R.T. 1804). There was no

opportunity to confer with Attorney Berman, who en-

tered into court and immediately began to cross-ex-

amine the witness who was on the stand (R.T. 1804).

Clair Margaret Henderson testified substantially as

follows: that she was the wife of the defendant and

she was asked by her husband to go to the pharmacy

to pick up some documents (R.T. 1810). She went to

the pharmacy with her daughter who went in to get the

documents. When her daughter came out she had some

papers in her hand and she said to her daughter, ‘‘I

don’t think this is what was asked for because they

don’t look like they’re verifications of a prescription,

so go back in and ask them if we can have a copy”’

(R.T. 1817) ; that her daughter went back in, came back

eee

11

out and said that Mr. Liebman was not there and he

didn’t know anything about it; that she then took the

documents and went back to her home; that when she

got home she showed them to her husband and said, ‘‘T

don’t know whether you can use these or not. I don’t

understand why they’re written on all these pieces of

paper’’; that her husband said, ‘‘it doesn’t matter what

they’re written on as long as they’ve been verified”’

(R.T. 1818); that the next day she took them to court

and as she was going into court a few minutes before

nine, Mr. Berman was rushing into the court; that she

handed the documents to him and said, ‘‘Mr. Berman,

these were some papers that were picked up last night.

I think that they are dates that Mr. Davis may have

had prescriptions filled” (T.R. 1819) ; that Mr. Berman

took them in his hand and without any discussion, went

in and started immediate cross-examination of the wit-

ness on the stand (R.T. 1819-1820).

The defendant testified substantially as follows: that

he telephoned Mr. Liebman for vertification of pre-

seriptions for Emet Davis because he knew prescrip-

tions had been given (R.T. 1823); that he stated that

he gave the pharmacist some target dates and asked

him to give him verification of any prescriptions that

were telephoned or written for Mr. Davis in 1973, on or

about April 30, on or about May 14, and on or about

the Ist day of June (R.T. 1825) ; that he stated that he

told him to look for Empirin Compound, % gr. of

Codiene (R.T. 1826) ; that Mr. Liebman said he would

look up the request and try to have it for him; that he

told him that it was important to have it, but he didn’t

tell him the reason (R.T. 1827) ; that later that day, he

called back and talked to another gentleman who said

said that Liebman had left something there and he told

12

them that his wife and daughter were on their way to

pick it up (R.T. 1828); that when his wife returned

that evening, they both noticed the sequence of numer-

als in the lower left-hand corner (R.T. 1831-1832) ;

that he assumed that the documents were verification

of prescriptions, so he told his wife to give these to Mr.

Berman (R.T. 1832); that the next morning, he saw

his wife give them to Mr. Berman as he was hurrying

into court, but there was no time for any conversation

and she just handed them to him and said, ‘‘ Here’s the

material’’; that he had no consultation with Mr. Ber-

man before Berman started cross-examination of the

witness (R.T. 1833) that he did not interrupt Mr. Ber-

man while he was cross-examining the witness because

he thought the receipts were verifications of actual pre-

seriptions (R.T. 1834).

At the conclusion of the ‘‘chambers” hearing, the

court, over the vigorous objection of defendant (R.T.

1851-1875), including a motion by defense counsel to

be allowed to withdraw, allowed the issue of fabrica-

tion to go before the jury. Substantially, the same tes-

timony was presented to the jury as was heard by the

court in their absence.

REASON FOR GRANTING THE WRIT

I

The Court of Appeals Finding That the Evidence Was Sufficient

as to Knowingly Causing the United States Mails’ Utilization Is

in Conflict With the Decisions of Other Circuits and a Mistake

of Law and Fact by the Circuit Court.

In the instant case, the indictment alleged that the

defendant participated in a scheme to defraud insur-

ance companies by using the United States mails con-

ee

13

trary to the provisions of 18 U.S.C., 1341. The statute

in question provides, inter alia:

‘“Whoever, having devised or intending to de-

vise any scheme or artifice to defraud, ... 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 there-

eee shall be [punished] .. .’’ (Id.; Emphasis

added).

In this case, the government simply failed to adduce

evidence which might properly be regarded as sufficient

to establish defendant’s liability for having‘ ‘cause[d]’

the mails’ [utilization by performing] ‘an act with

knowledge that the use of the mails will follow in the

ordinary course of business, or where such use can

reasonably be foreseen, even though not actually in-

tended. ... Pereira v. United States, 347 U.S. 1, 8-9,

748. Ct. 358, 363 ... (1954).’’ United States v. Maze,

414 U.S. 395, 399, 94 S. Ct. 645, 648 (1974). For the

prosecution failed to adduce any evidence which tended

to suggest that the defendant himself utilized the mails

in furtherance of the alleged scheme’s consummation.

Indeed, the government was unable to introduce any

testimony tending to substantiate defendant’s aware-

ness concerning the mails utilization by his alleged ac-

complice, an attorney to whom defendant submitted

the documents in question by means of a messenger

service (R.T. 2376-2377). Moreover, the prosecution

failed to adduce any evidence concerning the extent of

commercial dependence upon the mails as a means of

assisting the consummation of personal injury-related

transactions between physicians, attorneys and insur-

14

ance companies. This is highly significant, since the

government cannot establish the reasonable foresee-

ability of its mailing facility’s utilization by the simple

device of soliciting the invocation of judicial notice

concerning the extent of commercial reliance upon this

medium of communication. (United States v. Dondich,

506 F. 2d 1009 [9th Cir. 1974]; United States v. Maze,

supra, 94 8. Ct. 650, fn. 7). Thus, the government’s at-

tempt to establish defendant’s knowledge was entirely

dependent upon the testimony of Isadore Sanchez—

testimony to which defendant objected at trial. Insur-

ance adjuster Sanchez provided an account document-

ing a series of 1960’s negotiations with Dr. Henderson

which had been directed toward the consummation of

settlements in connection with several personal injury

eases involving unrepresented patients. (R.T. 1033-

1036). Sanchez, who stated that he was unable to recall

the name of any such patient-claimant, acknowledged

that his company’s ‘‘ general policy’’ involved the use of

both personal contact and mailing as means of effecting

settlement. (R.T. 1039). But since the witness was un-

able to offer testimony indicating the non-personal-

contact character of any encounters with Dr. Hender-

son, it is readily apparent that Sanchez’ account may

properly be characterized as purely speculative in its

tendency to establish the defendant’s knowledge con-

cerning the mails’ probable utilization. Accordingly, it

is clear that the prosecution failed to introduce any

evidence tending to establish that Dr. Henderson might

properly be charged with knowledge concerning the

probability of mailings’ utilization in furtherance of

attempts to settle cases covered by the instant indict-

ment. To reiterate, the government may not invoke the

concept of judicial notice as a device by which to elimi-

nate this evidentiary deficiency’s fatal significance. By

15

itself, this deficiency mandates the reversal of defend-

ant’s conviction on all counts for want of sufficient

evidence.

Secondly, the government failed to present evidence

sufficient to establish the United States mails’ actual

utilization in connection with the settlement of cases

covered by the instant indictment. In this case, as in

Dondich, supra, (1010), not one witness acknowledged

responsibility for having mailed any written communi-

cations. Not one witness claimed to have observed the

commission of any act specifically or inferentially

demonstrating the mails’ prospective utilization. More-

over, the government failed to introduce a single post-

marked envelope for the purpose of establishing the

mails’ employment in the instant case. But, as was ob-

served in Mackett v. United States, 90 F.2d 462 (7th

Circuit, 1937):

‘*In Brady v. United States (C.C.A.), 24 F.(2d)

399, the sufficiency of the evidence on the element

of mailing is discussed at length . . . The court,

among other things, said: ‘There is no direct evi-

dence that defendants wrote the letters or that they

deposited them in the post office directed to Mergen

with postage prepaid, or that they otherwise caused

them to be delivered to Mergen through the mails.

The envelopes in which the letters were mailed

are not in the record and apparently were not

introduced in evidence. . . . The fact that the

defendants caused such letters to be delivered...

must be inferred, if at all, from the fact that the

letters purported to have been written either by

McClintock or by Brady, and that the letters are

addressed to Mergen ... and that Mergen testified

he received such letters through the mail’.’’ (Mack-

ett, supra, at 463).

Moreover, not one single witness provided competent

testimony indicating personal knowledge concerning a

16

mailed communication’s receipt. For instance, while

Mr. Sanchez asserted on direct examination that medi-

cal records had been ‘‘inailed to him’’ by attorney Allen

Jacobs, (R.T. 1020) the witness ultimately acknowl-

edged a lack of personal knowledge with respect to the

means by which Mr. Jacobs’ documents had been trans-

mitted. (R.T. 1053). Needless to say, the absence of

tangible evidence tending to substantiate the validity

of this witness’ purported opinion hardly impairs its

speculative character. As was observed in United States

v. Browne, 225 F. 2d 751 (7th Cir. 1955) :

‘‘There was no proof that the letter ... was re-

ceived by the witness or any other person con-

nected with the insurance company in a stamped

addressed envelope. (This is a circumstance if

shown, much relied upon by some of the cases as

creating an inference that the letter was received

through the mails). It is true that Gadwell at one

point testified that the letter was received through

the mails, but it is conclusively demonstrated by

his testimony that he had no knowledge that such

was the fact and that his statement was nothing

more than a matter of mere opinion. This is not

sufficient.’’ (Id.)

While he admitted that his files contained no informa-

tion by recourse to which it might prove possible to

identify the document’s particular recipient, (R.T.

1052), Sanchez had initially observed that a ‘‘ecreas-

ing’’ on the record’s surface suggested their arrival in

mailed envelopes. But since it is clear that cireumstan-

tial evidence indicating the utilization of envelopes can-

not plausibly be regarded as sufficient to constitute cir-

cumstantial evidence that the containers in question

had been transmitted by mail, the deficiencies which in-

fect Sanchez’ speculations are fully comparable to the

mite %

Peete neem

17

shortcomings with which the court was confronted in

Rosenberg v. United States, 120 F. 2d 935 (10th Cir.

1941), wherein it was observed:

‘‘No envelope was offered. The government

places strong reliance upon the letter from Uphoff

to Harbor as indicating that the letter to the com-

missioner was sent by mail. But the letter to Har-

bor merely stated that a copy of a letter to the

commissioner was enclosed. It did not even state

that such a letter had been sent to the commis-

sioner, much less that it had been sent by mail... .

The mere fact that it was written in Illinois and

reached New Mexico is not enough. .. . One of the

accused may have delivered it in person, it may

have been sent by messenger, or it could have been

transmitted by express. Inference upon inference

or presumption upon presumption was the only

basis for the conclusion of the jury that the de-

fendants caused the letter to be transmitted and

delivered through the mails.’’ (Id. 937).

And as was observed in United States v. Baker, 50 F. 2d

122 (2d Cir. 1931):

‘‘Nothing . . . was shown about [the letter in

question] except that a former clerk in the addres-

see’s office, who did not testify from any knowledge

about the letter except his conclusion drawn from

the addressee’s stamp it bore, was asked ‘In the

ordinary course of your business would you say

that that letter came through the mail?’ and an-

swered, ‘ Absolutely’.

é

. . Since this letter went from New York to

Hartford, it is very likely that it went by mail, as

that is a convenient and customary way to send

letters from one city to another. That is really all

the ‘proof’ of mailing there is. If the guilt of an

accused under the Mail Fraud Statute requires no

more proof of the mailing of a letter than proof

18

that it was written in one city and received in an-

other, the task of the federal prosecutor in such a

case is much simpler than had been supposed, [cita-

tions omitted].’’ (Id. 123-124).

The only witness whose testimony is consistent with

personal knowledge’s existence is William Murphy,

who claimed to have specifically noted the presence of a

cancelled stamp on the face of an envelope which had

been received from Mr. Jacobs in connection with settle-

ment negotiations concerning a case the special signifi-

cance of which remained unknown to the witness for a

very substantial period of time (R.T. 1558).

Yet it is clear that both the remoteness and the ap-

parent insignificance of the prior transactions justifies

the propriety of characterizing this witness’ scenario as

inherently incredible—a characterization which nulli-

fies this testimony’s evidentiary significance. For as

Justice Field observed in Quock Ying v. United States,

104 U.S. 417, 11S. Ct. 733 (1891) :

‘‘Undoubtedly, as a general rule, positive testi-

mony as to a particular fact, uncontradicted by

anyone, should control the decision of the court;

but that rule admits to many exceptions. There

may be such an inherent improbability in the state-

ments of a witness as to induce the court or jury

to disregard the evidence, even in the absence of

any direct conflicting testimony.”’ (104 U.S. 420-

421, 118. Ct. 734).

(See also, Factor v. C.I.R., 281 F. 2d 100, 111 (9th Cir.

1960) ; Wong Ken Foon v. Brownell, 218 F. 2d 444, 446

(9th Cir. 1955). It is interesting to note that the doc-

trine of inherent incredibility has found expression in

mail fraud cases involving problems similar to those

presented by this witness’ testimony. For as was re-

19

gently stated in United States v. Stull, 521 F. 2d 687

(6th Cir. 1975) :

‘‘No stamped envelope was introduced. Browne,

supra, at 753, 756. The president-manager’s testi-

mony that he received the orders through the mail

is no more than a conclusion, particularly in light

of his admission that his secretary opened the mail,

see Mackett v. United States, 90 F. 2d 462, 464 (7th

Cir. 1937); Baker, supra, Browne, supra, at 756;

and a rather weak conclusion at that, given the pas-

sage of four years between the receipt of these

small, routine orders and his testimony. See

[United States v.] Ellicott, 336 F. 2d 868, at 870

(4th Cir. 1964).’’ (Stull, supra, 690).

But since inherently incredible evidence is fully equiva-

lent to its non-existence, the government failed to pre-

sent evidence sufficient to establish the mails’ utiliza-

tion in connection with the settlement of cases covered

by this case’s indictment. For this reason alone, the

instant conviction should be reversed as to all counts.

In sum, it is respectfully submitted that the prosecu-

tion failed to adduce evidence sufficient to justify the

conclusion that defendant ‘‘knowingly [caused various

documents] to be delivered by United States Mail [in

furtherance of the instant alleged conspiracy].”’

A principal point on appeal raised by the Appellant

was the sufficiency of the evidence concerning ‘‘use of

the mails.’’ This Court, in rejecting Appellant’s con-

tention, stated in its opinion that ‘‘an examination of

the record clearly discloses the direct testimony of at

least one witness who stated that on each of the nine

counts the mails of the United States were used for the

purposes of transmitting or receiving letters, medical

reports, medical bills, insurance drafts, or a release of

claim relating to the plan to defraud.”’ (Page 2 of the

20

memorandum, Lines 21-26.) The above statement of

the Court is in error as a matter of fact. As to Count

Seven of the Indictment, there was absolutely no evi-

dence which could support a finding of ‘‘mailing”’ as it

concerned this Count. The witness Sanchez did testify

on direct examination that bills were ‘‘mailed to him”’

by Jacobs. However, on cross-examination, the witness

acknowledged that the bills had been received by some-

one else prior to his getting the file and the file did not

reflect how they were received. The witness finally ad-

mitted on cross-examination that he had no personal

knowledge concerning mailing. (See Reporter’s Tran-

script Page 1053, and Appellant’s Opening Brief, Page

5. Lines 1-10. Therefore, at the very least, conviction

on this Count should have been reversed.

Moreover, the Court, in finding that there was evi-

dence of mailing on ‘‘each of the nine counts’’, has com-

pletely ignored the fact that all of the testimony from

the witnesses on the remaining counts was conclusion-

ary in form and said testimony does not rise to the

dignity of amounting to proof beyond a reasonable

doubt. On the facts of this case, the finding of ‘‘mail-

ing’’ is in direct conflict with the specific holding of

such eases as United States v. Browne, 225 F.2d 751

(7th Cir. 1955), Rosenberg v. United States, 120 F.2d

935 (10th Cir. 1941), United States v. Baker, 50 F.2d

122 (2nd Cir. 1931), and United States v. Stull, 521

F.2d 687 (6th Cir. 1975). The witnesses in the instant

ease testified to no more than the claim that they “re-

ceived the letter through the mail.’’ Stull specifically

rejects this evidence as being merely conclusionary and

insufficient to support a finding of a violation of the

statute. United States v. Stull, 521 F.2d 687, 690.

fea Chee as

21

II

The Trial Court Refused to Allow the Petitioner to Call as a

Material Witness His Lawyer Who Could Give Exculpatory Evi-

dence, And Punished the Petitioner for Exercising His Fifth

Amendment Rights, And Misapplied the Law and Facts as to

Federal Rules of Criminal Procedure 16(b), And the Court of

Appeals Did the Same. The Decision 1s in Conflict With the Law

of This Court and With Other Circuits.

During the trial, defendant’s attorney sought the

issuance of an order authorizing his withdrawal by as-

serting that the emergence of a potential fabrication

issue generated an attorney-client conflict and fore-

closed his own capacity to provide exculpatory testi-

mony concerning the circumstances surrounding ap-

pellant’s purported attempts to fabricate evidence.

(R.T. 1852-1873). The motion was ultimately denied

(R.T. 1873). It has long been recognized that a ‘‘mo-

tion to dismiss counsel should be... granted where im-

portant interests of the defendant are at stake and

there is no material danger that the processes of justice

will be obstructed or abused.’’ (Dearinger v. United

States, 344 F. 2d 309, 311 [9th Cir. 1965]; see also,

United States v. Mitchell, 138 F. 2d 831, [2d Cir.

1943]). While the fact that a defendant simply desires

to obtain a delay in the proceedings obviously fails to

qualify as a sufficient justification, (United States v.

Clausell, 389 F. 2d 34, 35 [2d Cir. 1968]). it is clear

that the ‘‘[d]enial of [a defendant’s] motion [for with-

drawal of counsel] is reversable error where there is

some possibility that appellants have divergent inter-

ests so that one or both might not receive ‘untram-

melled and unimpaired’ assistance from common coun-

sel. (Glasser v. United States, 314 U.S. 60, 70, 62, S. Ct.

457 ... [1942]).”’ (Glavin v. United States, 396 F. 2d

725, 727 [9th Cir. 1968]). But since ‘‘‘[i]t has been

22

widely recognized that lawyers representing litigants

should not be called as witnesses in trials involving

those litigants if such testimony can be avoided con-

sonant with the end of obtaining justice[,]’? (United

States v. Alu, 246 F. 2d 29, 33 [2d Cir. 1957]), there

ean be no question but that the denial of a withdrawal

motion constitutes reversable error to the extent that it

forecloses the elimination of a conflict between an at-

torney’s respective obligations as advocate and perci-

pient witness. For as was observed by one court:

‘*W ]e deplore the practice of the government

prosecutor so injecting himself into the trial of a

case unless doing so is unavoidable. If it appears

that he is to be a witness for the government, and

obviously there are times when that cannot be

avoided, the trial of the case should be entrusted

to a colleague.’’ (United States v. Pepe, 247 F. 2d

838, 844 [2d Cir. 1959]).

It is equally clear that the applicability of this propo-

sition is not confined to prosecutors. For according to

Disciplinary Rule 5-102 of Canon 5 of the Code of Pro-

fessional Responsibility,

‘Tf, after undertaking employment in contem-

plated or pending litigation, a lawyer learns or it

is obvious that he or a lawyer in his firm ought to

be called as a witness on behalf of his client, he

shall withdraw from the conduct of the trial and

his firm, if any, shall not continue representation

in the trial... .’’ (Id.)

(See Kroungold v. Triester, 521 F. 2d 763 [3d Cir.

1975]).

The substantiality of prosecutorial reliance upon

fabrication evidence is clearly sufficient to outweigh

the “‘reasonably anticipated delay or disruption of

23

court proceedings’’ attendant upon defense counsel’s

replacement. (Dearinger, supra, at 311). Yet the denial

of defense counsel’s motion for withdrawal foreclosed

the presentation of exculpatory material evidence

which would have assisted the jury’s attempt to assess

prosecution evidence purportedly establishing defend-

ant’s responsibility for having precipatated the manu-

facture of prescription receipts for presentation at

trial. Moreover the significance of defense counsel’s

role in appellant’s account concerning the cireum-

stances surrounding these receipts’ preparation might

wall have induced the jury to invest his judicially-

ordained non-witness status with substantial ineulpa-

tory significance.

Furthermore, the intensity of defense counsel’s pro-

testations of surprised non-involvement fully justifies

the conelusion that his withdrawal motion was at least

partially prompted by a belief that the receipts’ pre-

sentation established a conflict between the vindication

of his own professional status and the presentation of

an effective defense on behalf of his client—a client

whose actions may have been interpreted by defend-

ant’s trial counsel as having compromised the latter’s

integrity. Obviously, however, the existence of a con-

flict between attorney and client is fully comparable to

either the existence of an opposition between counsel

representative and testimonial obligations or the pres-

ence of adversity between the respective legal interests

of co-defendants. For in each instance, the conflict situ-

ation diminishes the justifiability of a client’s anticipa-

tion that he will obtain the benefit of ‘‘untrammelled

and unimpaired”’ assistance from counsel. (Glasser v.

United States, supra).

24

In view of the fact that this motion’s denial not only

prevented the introduction of substantial exculpatory

evidence concerning fabrication but also invited the

jury to regard the bare fact of defense counsel’s non-

witness status as an inculpatory circumstance, it is

clear that the trial court’s insistence upon the latter’s

retention simply augmented the prejudice to which ap-

pellant has been subjected in connection with this is-

sue’s presentation to the jury. The prejudicial implica-

tions inherent in this motion’s denial are also high-

lighted by the issuance of an instruction which effee-

tively encouraged the trier of fact to conduct its con-

sideration of fabrication’s significance in accordance

with an assumption that its existence had already been

conclusively demonstrated.

Subsequent to its compliance with defendant’s re-

quest for discovery, the government obtained the issu-

ance of an order mandating the production of Dr. Hen-

derson’s medical log and patients’ records for prosecu-

torial inspection. The court ruled that defendant would

be foreclosed from offering these logs and files in the

event that he failed to comply with the reciprocal dis-

covery order by invoking his Fifth Amendment privi-

lege against self-incrimination. In response to defend-

ant’s contention that the disecoverability of these docu-

ments presupposed his ‘‘inten[tion] to introduce

[them] as evidence in chief at the trial’’, the court

ruled that governmental representations concerning

the anticipated contours of its witnesses’ testimony

were sufficient to justify a conclusion that the defense

should be deemed to have foreseen the necessity of

utilizing the documents in question for impeachment

a

25

and rebuttal purposes. Ultimately, the court permitted

defendant to utilize his records for the purpose of un-

successfully attempting to refresh a witness’ recollec-

tion. Nevertheless, the court ruled that defendant’s re-

fusal to comply with its pretrial reciprocal discovery

order foreclosed the documents’ admissibility as sub-

stantive evidence under the past recollection recorded

exception to the hearsay rule.

By predicating the admissibility of privileged infor-

mation upon the renunciation of its protected status,

the court violated defendant’s Fifth Amendment privi-

lege against self-incrimination. For as was observed

by the Ninth Cireuit Court of Appeals in United States

v. Brown, 501 F. 2d 146 (9th Cir. 1974), reversed on

other grounds in United States v. Nobles, 422 U.S. 225,

95 S. Ct. 2160 (1975) :

“The prosecution’s opportunity to discover evi-

dence in the possession of the defense is somewhat

limited in the proposal with which we deal in that

it is tied to the exercise by the defense of the right

to discover from the prosecution. But if discovery,

by itself, of information in the possession of the

defendant would violate the privilege against self-

incrimination, is it any less a violation if condi-

tioned on the defendant’s exercise of the oppor-

tunity to discover evidence? May benefits be con-

ditioned on the abandonment of constitutional

rights? See, e.g., Sherbert v. Verner, 374 U.S. 398,

403-406, 83 8. Ct. 1790, 1793-1795, .... To deny a

defendant the opportunity to discovery—an op-

portunity not withheld from defendants who agree

to prosecutorial discovery or from whom discovery

is not sought—merely because the defendant

chooses to exercise the constitutional right to re-

frain from self-incrimination arguably imposes a

26

penalty upon the exercise of that fundamental

privilege.’’ (501 F. 2d 152).

It is clear that the substantially unilateral quality of

criminal discovery remains unimpaired by the Su-

preme Court’s reversal of the Ninth Circuit’s Brown

decision. For as was stated in Nobles, supra:

‘The Court of Appeals concluded that the Fifth

Amendment renders criminal discovery ‘basically

a one-way street.’ 501 F. 2d at 154. Like many gen-

eralizations in constitutional law, this one is too

broad. The relationship between the accused’s

Fifth Amendment rights and the prosecution’s

ability to discovery materials at trial, must be

identified in a ore discriminating manner.

“The Fifth Amendment privilege against com-

pulsory self-incrimination is an ‘intimate and

personal one’, which protects ‘a private Inner sanc-

tum of individual feeling and thoughts and pro-

scribes state intrusion to extract self-condemna-

tion.’ Couch v. United States, 409 U.S. 322, 327,

93 S. Ct. 611, 615... (1973) ... As we noted in

Couch, 409 U.S., at 328, 93 S. Ct. at 616, the

‘privilege is a personal privilege: it adheres ba-

sically to the person, not to information that may

incriminate him.’

‘‘In this instance disclosure of the relevant por-

tions of the defense investigator’s report would

not impinge on the fundamental values protected

by the Fifth Amendment. The court’s order was

limited to statements allegedly made by third par-

ties who were available as witnesses to both the

prosecution and the defense. Respondent did not

prepare the report, and there is no suggestion that

the portions subject to the disclosure order re-

flected any information that he conveyed to the

investigator. The fact that these statements of

third parties were elicited by a defense investiga-

2 ae

27

tor on respondent’s behalf does not convert them

into respondent’s personal communications. Re-

quiring their production from the investigator

therefore would not in any sense compel respond-

ent to be a witness against himself or extort com-

munications from him.

‘*We thus conclude that the Fifth Amendment

privilege against compulsory self-incrimination,

being personal to the defendant, does not extend

to the testimony or statements of third parties

called as witnesses at trial. The Court of Appeals’

reliance on this constitutional guarantee as a bar

to the disclosure here ordered was misplaced.’ (95

S. Ct. 2167-2168).

In contrast to the situation with which the Supreme

Court was confronted in Nobles, supra, the instant case

involves documents the preparation of which is directly

attributable either to the defendant himself or an agent

acting under this direct supervision. The present case

thus stands in sharp contrast with the circumstances

presented by Fisher v. United States, 96 S. Ct. 1569

(1976), wherein the Supreme Court observed:

‘‘A subpoena served on a taxpayer requiring

him to produce an acecountant’s work papers in his

possession without a doubt involves a substantial

compulsion. But it does not compel oral testimony ;

nor would it ordinarily compel the taxpayer to re-

state, repeat or affirm the truth of the contents of

the documents sought. Therefore, the Fifth

Amendmént would not be violated by the fact

alone that the papers on their face might incrimi-

nate the taxpayer, for the privilege protects a per-

son only against being incriminated by his own

compelled testimonial communications. [Citations

omitted]. The accountant’s work papers are not

the taxpayer’s. They were not prepared by him,

28

and they contain no testimonial declarations by

him... .’’ (96 S. Ct. 1580).

There can thus be no question but that the Fifth

Amendment privilege’s applicability is sufficient to

substantially undereut the reciprocity of criminal dis-

covery which is permitted by Rule 16. As was observed

in United States v. Fratello, 44 F.R.D. 444 (S.D. N.Y.

1968), (a decision which the Ninth Cireuit’s Brown

opinion cited with approval, [501 F. 2d 154]):

‘Tt is true that discovery under Rule 16(b) is

limited to material as to which the defendant in-

tends at the trial, to waive his Fifth Amendment

privilege. ...’’ (Fratello, supra, at 448).

The Advisory Committee note accompanying Rule

16(b) provides the following guidance for the exercise

of discretion:

‘*While the government normally has resources

adequate to secure the information necessary for

trial, there are some situations in which mutual

disclosure would appear necessary to prevent the

defendant from obtaining an unfair advantage. ...

[Where] the defendant is well represented and

well financed, mutual disclosure so far as consist-

ent with the privilege against self-incrvmination

would seem as appropriate as in civil cases.’’ (8

Moore’s Federal Practice, § 16.01[3] (1967).

The Nobles decision has not impaired the efficacy of

this Circuit’s endorsement of a doctrine advanced by

the California Supreme Court in accordance with

which the prosecution is foreclosed from attempting to

circumvent an assertion of the Fifth Amendment privi-

lege by the simple devise of demonstrating that “the

defendant intends to introduce [the materials in ques-

tion] as evidence in chief at the trial’’. Rule 16[b]).

29

For as the Ninth Circuit observed in United States v.

Brown, supra:

‘In Prudhomme v. Superior Court, 2 Cal. 3d

320,.... (1970), the court wrote:

‘The People must ‘‘shoulder the entire load” of

their burden of proof in their case in chief with-

out assistance from the defendant’s silence or from

his compelled testimony. [Citations].’

‘Thus, ... it is apparent that the principal ele-

ment in determining whether a particular demand

for discovery should be allowed is not simply

whether the information sought pertains to an

‘‘affirmative defense’? or whether defendant in-

tends to introduce or rely upon the evidence at

trial, but whether disclosure thereof conceivably

might lighten the prosecution’s burden of proving

its case in chief. Although the defendant should

not be completely barred from pretrial [emphasis

in original] discovery, defendant must be given

the same right as an ordinary witness to show

that disclosure of particular information could

incriminate him.’... .

[2 Cal. 34] 323-325, 326... .’? (501 F. 2d 153-154).

It is thus readily apparent that the privilege’s efficacy

as a.means by which to resist an order of reciprocal

discovery cannot be made to depend upon the question

of whether or not the “defendant intends to introduce

[the materials] as evidence in chief at the trial.’’ (Rule

16[b]). Of course, it need hardly be mentioned that

the privilege’s applicability does not presuppose the

asserting party’s capacity to demonstrate the existence

of tangible hazards of incrimination. As the Ninth Cir-

cuit observed in Brown, supra:

30

“In Prudhomme vy. Superior Court, 2 Cal. 3d

320,.... (1970), the [California Supreme Court]

wrote:

‘An ordinary witness need not actually prove

the existence of an incriminatory hazard, as that

would surrender the very protection which the

privilege against self-incrimination was designed

to guarantee. Instead, .. . . the trial court must

find that it clearly appears from a consideration

of all the circumstances in the case that an answer

to the challenged question cannot possibly have the

tendency to incriminate the witness’.’’ (501 F. 2d

153-154).

In sum, the sanctions to which the defendant was sub-

jected by virtue of his non-compliance with the instant

discovery order contravened his capacity to assert a

Fifth Amendment privilege against compulsory self-

inerimination.’

Even if the foregoing constitutional problems are

ignored for the sake of discussion, however, it seems

clear that the materials in question may not properly

be characterized as ‘trelevant’’ within the meaning of

Rule 16. For the relevancy of potentially discoverable

material is dependent upon the extent to which the

scope of its anticipated utilization excludes the pur-

poses of impeachment and rebuttal as justifications for

its introduction. As we observed in United States v.

Skillman, 442 F. 2d 542 (8th Cir. 1971):

.... The recorded conversation was not a ‘rele-

vant statement’ under the meaning of Rule 16. It

was introduced not as a part of the government’s

‘Moreover, the sanction of exclusion effectively penalized the

defendant for attempting to protect himself against the possibil.ty

of administrative liability in connection with the disclosure of ma-

terials protected by the patient-physician privilege.

REP =

31

ease-in-chief, but on rebuttal. ... It was not ad-

mitted for its truth, but was admitted solely for

the purpose of impeaching Skillman’s denial that

he had ever talked with Knight.’’ (Id. 550).

Moreover, the prosecution cannot compel the defense

to anticipate the necessity of impeaching government

witnesses by the simple device of asserting the pre-

dicatability of their testimony. For as the Supreme

Court observed in Jencks v. United States, 353 U.S.

657, 77 S. Ct. 1007 (1957) :

‘*Requiring the accused first to show conflict be-

tween the reports and the testimony is actually to

deny the accused evidence relevant and material

to his defense. The occasion for determining a con-

flict cannot arise until after the witness has testi-

fied and unless he admits conflict, .... the accused

is helpless to know or discover conflict without in-

specting the reports.’’ (353 U.S., 667-668, 77 S.

Ct. 1013; Emphasis added).

Thus, it seems clear that the materials in question can-

not properly be characterized as comprising ‘‘ books,

papers, [and] documents .... which the defendant in-

tends to introduce as evidence in chief at the trial.’’

(Rule 16(b), Federal Rules of Criminal Procedure).

Finally, the instant order sweeps with unnecessary

breadth in purporting to compel the disclosure of all

patients’ records and physician’s log books. In United

States v. Wright, 480 F. 2d 1181 (D.C. Cir. 1973), the

court discussed a similar situation in the following

terms:

sé

.... [T]he investigative report obtained from

Reeves included not only a summary of Reeves’

interview with Richardson, but also summaries of

his interviews with other potential witnesses, in-

cluding Miss Fleming, who Holloway testified ac-

32

companied Holloway and appellant as they drove

around DuPont Circle about the time of the

robbery.

ee

= [T]he rules governing documents used

to refresh recollection could in no event justify

requiring Reeves to turn over his entire investiga-

tive report to the prosecution. As a defense witness

Reeves testified only as to two matters—his inter-

view with Richardson on January 19, and his ex- —

amination of the lighting conditions at the scene -

of the crime. Assuming they had been used to re-

fresh his recollection « trial, those parts of his in-

vestigative report relative to this testimony and

possible use to the goverrment in cross-examining

Reeves with respect to this testimony would have

to be turned over to the prosecution. But there was

nothing in the investigative report on Reeves’ ex-

amination of the lighting conditions. And the re-

port contained much information totally irrele-

vant to the January 19 interview with Richardson,

including summaries of interviews with police

officers, ‘another interview with Richardson, and

the interview with Miss Fleming. Even if Reeves

used the report to refresh his recollection, only

those parts of the report relating to his testimony

on direct need have been turned over to the gov-

ernment. [Citations omitted].’’ (Wright, supra,

185, 1189).

In the instant ease, defendant unequivocally repre-

sented his intention to confine the utilization of his

records to the limited rebuttal purpose of impeaching

prosecution witnesses in the event of any misrepre-

sentations concerning the extent of treatments with

which they had been provided by his office. Conse-

quently, the reciprocal discovery order’s sweeping

scope substantially exceeded the dimensions of its issu-

$b as LE ne Oe

33

ance’s initial justification. The circumstances of the

instant case thus stand in sharp contrast with the facts

confronting the Supreme Court in Nobles, supra,

wherein it was observed:

“Finally, our examination of the record per-

suades us that the District Court properly exer-

cised its discretion in this instance. The court au-

thorized no general ‘fishing expedition’ into the

defense files or indeed even into the defense in-

vestigator’s report. Cf. United States v. Wright,

supra, Rather, its considered ruling was quite

limited in scope, opening to prosecution scrutiny

only the portion of the report that related to the

testimony the investigator would offer to discredit

the witness’ identification testimony. The court

further afforded respondent the maximum oppor-

tunity to assist in avoiding unwarranted disclo-

sure or to exercise an informed choice to eall for

the investigator’s testimony and thereby open his

reports to examination.’’ (95 8. Ct. 2171).

Obviously, however, the court’s decision to prevent the

introduction of Dr. Henderson’s records effectively

penalized the defendant for having refused to comply

with an overly broad discovery order.

It is clear that the imposition of sanctions as the

price for defendant’s non-compliance with the recipro-

cal discovery order effectively prejudiced Dr. Hender-

son’s right to a fair trial. During Grand Jury proceed-

ings, the prosecution obtained testimony by several

former patients tending to suggest that the defendant

had substantially exaggerated the extent of their re-

spective treatments for the purpose of defrauding in-

surance carriers in connection with numerous personal

injury automobile accident cases. However, some of

these witnesses subsequently repudiated their Grand

Jury testimony at the time of trial. In each such in-

34

stance, the trial court admitted the declarant’s former

testimony for substantive purposes pursuant to the

hearsay rule’s prior inconsistent statement exception.

The jury was thus confronted with the difficult task of

attempting to effect a selection between mutually ex-

elusive accounts of the witnesses’ respective relation-

ships with their physician. It is only too obvious that

the defendant would have been able to assist the jury’s

completion of this conflict-resolution process in the

event he had been permitted to introduce his medical

logs and patients’ files for the purpose of impeaching

misrepresentative statements. Clearly, therefore, the

invocation of sanctions as a consequence of defendant’s

non-compliance with the order for reciprocal discovery

severely prejudiced Dr. Handerson’s capacity to ob-

tain a fair trial.

In rejecting Appellant’s Fifth Amendment claim in

connection with the Order for Reciprocal Discovery

pursuant to Rule 16(b), this Court seriously miscon-

ceived the facts, and thereby misapplied the law. In its

Memorandum Decision, the Court stated at Page 5,

Lines 24-28, that Defendant’s Trial Counsel ‘‘advised

the Court that he intended to use the medical records

during the presentation of his case in chief.’’ This

statement is in most serious error. Never at any time

did the Defense Counsel advise the Court that he in-

tended to use the records in his ‘‘case in chief.’’ On the

contrary, counsel repeatedly reiterated that he had

no intention of introducing the documents in his case

in chief, unless they were used for impeachment pur-

poses, and impeachment material was not required to

be produced pursuant to Rule 16(b). The hearing on

the Motion for Reciprocal] Discovery appears in the

Reporter’s Transcript, Page 192 through 217. Within

weer,

35

those pages appears such comments from Defense

Counsel as:

“T have never indicated to Counsel in any way,

shape, or form that we were going to introduce

records,” (Page 193, Lines 3-5), and the com-

ment by the Court as follows:

The Court: ‘*. .. my understanding was: Coun-

sel has said he does not intend to offer any of these

documents in evidence, at all.’’

Again, at Page 214, Line 14, Mr. Berman (Defense

Counsel) stated, ‘‘We will not offer those in chief.”’

The record is clear that Defense Counsel’s position was

that the records would only be introduced for impeach-

ment purposes, in event the prosecution witnesses did

not testify truthfully, and pointed out that impeach-

ment material did not come within the confines of

Rule 16(b).

The Court accepted the defendant’s position that

he did not intend to introduce the documents in his

‘‘ease in chief’’ but when counsel indicated that he may

possibly use the documents for impeachment purposes,

and that he would have to make that decision when the

issue arose, thereupon, the Court indicated that the

defendant would not be allowed to utilize the documents

for any purpose it defendant could not state at that

point in time whether or not he was going to introduce

the documents. (See Page 215, Line 1 through Page

216, Line 4.) It was only after the Court had taken this

position that the defendant then asserted a refusal to

show the documents on the ground of a Fifth Amend-

ment privilege. The Court, having recognized and ac-

cepted defendant’s position that he had no present in-

tention of introducing the documents, nevertheless pen-

36

alized the defendant by making an Order which pro-

hibited the defendant from introducing the documents

at any time for any purpose in spite of the fact that

he claimed a Fifth Amendment privilege.

Perhaps the Court’s misconception of the facts led

it to a serious mistake in the application of the law,

since Rule 16(b) has no application to the require-

ment of reciprocal discovery unless the defendant in-

tended to introduce the documents in his case in chief,

and the record is abundantly clear that there was no

such intention on the part of the defendant. Therefore,

this Court’s opinion concerning ‘‘acceleration of the

moment of disclosure’’ has no application to the case

before it. Indeed, this Court stated that the Trial Court

had accepted the defendant’s position that inasmuch

as he did not intend to introduce the documents in his

‘case in chief” the documents did not fall within the

Rule 16(b) requirement. (Memorandum Opinion, Page

6, Lines 9-14) Once the Court accepted the defendant’s

position that he did not intend to offer the documents

in his ease in chief, the reciprocal discovery Order was

no longer valid.

It is clear from the record that the documents in

question did pose a properly invoked Fifth Amendment

privilege. Because the defendant subsequently decided

to waive that privilege, and to utilize the documents to

either refresh the recollection of defense witnesses, or

to utilize them in establishing past recollection re-

corded, the Trial Court had absolutely no right to

prevent the use of the questioned material because to

do so was to punish the defendant for the invocation

of Fifth Amendment privileges, which said privileges

could be waived at any time by defendant.

37

Contrary to the instant Memorandum Opinion,

neither Williams v. Florida, 399 U.S. 78, nor United

States v. Nobles, 422 U.S. 225, supported the Govern-

ment’s position. The Williams opinion was inapplica-

ble since that case involved a Notice of Alibi statute

rather than a Reciprocal Diseevery provision. More

significantly, Nobles provides a strong indication that

a Fifth Amendment claim may not be defeated so long

as the materials called for under a Reciprocal Diseov-

ery Order do not fall within what ‘‘the defense intends

to reveal at trial.’’ (United States v. Browne, 501 F.2d

146, 154, 9th Cir. 1974) While Nobles in effect reversed

Browne, it did not reverse the logic and holding of the

language set forth above.

In summary on this point, it is asserted that the Trial

Court, while accepting defendant’s position that the

records did not fall within the Rule 16 requirement

because they were not items which he intended to in-

troduce in his case in chief, said Trial Court neverthe-

less refused to allow the introduction of the documents

in question because the defendant had failed to comply

with an Order which could not, under the law, ‘be

made. This Court’s affirmance of the Trial Court’s posi-

tion has denied the defendant a most basie constitu-

tional privilege, which denied him due.process in that

all parties recognized that at the point in time when

the records were sought to be introduced, they consti-

tuted a most significant facet of the defense case since

those records would have impeached the voracity of

the prosecution witnesses who testified to facts con-

trary to those contained in the records.

38

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue to review the judgment and opinion of

the Ninth Circuit.

Respectfully submitted,

/s/ JERRY PAUL

Jerry Paul

Route 4, Box 417-B

Chapel Hill, N.C. 27514

(919) 942-3676

Member of the Bar of the

Umited States Supreme Court

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 78-1344

Memorandum

Unitep States or America, Plaintiff/Appellee,

v.

Hersert Bernarp Henperson, M.D., Defendant/Appellant.

Appeal from the United States District Court

for the Northern District of California

Before: Duniway and Kitkrenny, Circuit Judges, and Me-

Govern", District Judge.

Defendant appeals from the judgment and sentence en-

tered by the Court upon a jury verdict finding defendant

guilty on 9 counts of using the mails of the United States

to defraud in violation of Title 18 U.S.C. § 1341.

The basic facts giving rise to the charges were said to

be that the defendant doctor of medicine knowingly made

false statements by overstating the severity of injuries,

and the quantity of treatment rendered, to some of his

medical patients; that the magnified claims were then

processed through attorney at law, Allen Jacobs, who for-

warded them to certain insurance companies for claim

settlement purposes; and that defendant knowingly caused

the United States Mail to be used in furtherance of the

scheme to obtain money from those insurance companies

by means of those false and fraudulent representations.

* Honorable Walter T. McGovern, Chief United States District

Judge, Western District of Washington, sitting by designation.

2a

Defendant contends that the government failed “. . . to

adduce any evidence which tended to suggest that the de-

fendant himself utilized the mails in furtherance of the

alleged scheme’s consummation.” He argues that he himself

employed a messenger service for the delivery of docu-

ments to the lawyer and that there was no evidence to sup-

port the proposition that he was aware of lawyer Jacobs

using the mails to promote the fraudulent scheme.

It is, of course, not necessary for the government to show

that the defendant actually mailed any of the documents

himself. Nor is it necessary that the plan or scheme en-

visage the use of the mails as a part of the plan or scheme.

The essential elements are: (1) the scheme to defraud and

(2) the use of the mails for the purpose of carrying out the

scheme. And the second element is satisfied if the defen-

dant merely “caused” a mailing to be made. Pereira a.

United States, 347 U.S. 1 (1954); United States v. Outpost

Development Co., 552 F.2d 868 (9th Cir. 1977).

Did defendant here cause the mailing? “Where one does

an act with knowledge that the use of the mails will follow

in the ordinary course of business, or where such use can

reasonably be foreseen, even though not actually intended,

then he ‘causes’ the mails to be used.” Pereira v. United

States, supra, at 8-9.

An examination of the record clearly discloses the direct

tesitmony of at least one witness who stated that on each

of the nine counts the mails of the United States were used

for the purposes of transmitting or receiving letters, medi-

cal reports, medical bills, insurance drafts, or a release of

claim relating to the plan to cefraud. The jury was cor-

rectly instructed on this essential element of the charge

and apparently was satisfied that the mails were in fact

used and that such use by a participant, or somebody else,

was either reasonably foreseeable by the defendant or au-

thorized by him, or chargeable in law, to him. Ample evi-

dence in the record supports that finding.

3a

Defendant next complains of the court’s instruction on

the issue of fabrication of defense, i.e., the use of Devitt

and Blackmar, I’ederal Jury Practice and Instructions

§ 15.09 (3d ed. 1977).

While it may be said that the instruction would be better

stated if it contained the usual conditional language to the

effect that evidence of fabrication could be considered in

the case if the jury finds that there was such as attempt to

fabricate, nonetheless an examination of the record as a

whole indicates no plain error in this respect, but, if error

at all, then harmless in law.

No exception was taken to the instruction as proposed

and given; no argument was made or inferred by the gov-

ernment that the court had in fact found an attempted

fabrication by the defendant; counsel for the government

and counsel for the defense each argued to the jury the

question of whether an attempt to fabricate the evidence

had been made; the court instructed the jury that no one

instruction should be considered in isolation but that the

instructions should be considered as a whole and the jurors

were instructed that they were the sole judges of the weight

and effect to be given to any and all evidence admitted in

the cause. The assignment of error is without merit.

Defendant next assigns error to the failure of the trial

court to grant defense counsel’s motion to withdraw as

attorney for the defendant when the issue of fabrication

of evidence arose.

Toward the close of the government’s ease in chief the

court held a hearing outside the presence of the jury to de-

termine whether sufficient cause existed to justify a pre-

sentation of facts to the jury on the question of fabrication

of evidence. Following the ruling that the issue would be

presented to the jury, defense counsel predicated his motion

to withdraw upon the belief that his credibility with the

jury had been impeached because it was he who first raised

the issue of contradictory evidence. The court considered

4a

the interests of all parties involved and then denied the

motion to withdraw. “. .. a motion to dismiss [defense]

counsel should be denied if defendant’s reasons are insub-

stantial in relation to reasonably anticipated delay or dis-

ruption of court proceedings; and, conversely, such a mo-

tion should be granted where important interests of the

defendant are at stake and there is no material danger that

the processes of justice will be obstructed or abused.” Dear-

inger v. United States, 344 F.2d 309, 311 (9th Cir. 1965).

The trial court pointed out to defense counsel that his

integrity was not impugned in that appellant’s wife testi-

fied that she gave the documents in issue to defense counsel

for the first time as he entered court that morning. Addi-

tionally, defense counsel was allowed to cross-examine the

principal witness upon the theory of a misunderstanding, as

distinguished from fabrication, of evidence.

Those factors, in conjunction with the fact that this was

the third trial of the cause, that the appellant was in a

state of ill health, that a mistrial would seriously incon-

venience the witnesses, and that the government’s case in

chief was substantially completed, all support the discre-

tionary ruling of the trial court. No error occurred.

Defendant next contends that the court committed error

when it prohibited him from placing into evidence certain

records of his medical patients.

Pre-trial motions had resulted in an agreed upon order

of reciprocal discovery under Federal Rules of Criminal

Procedure, §16(a) and (b). Yet defendant thereafter ad-

vised the court that he would not comply with its order

because such order violated his fifth amendment privilege

against self-incrimination.

Notable jurists and authors have made a similar argu-

ment. See the dissent of Douglas, J. from the adoption of

Rule 16, Federal Rules of Criminal Procedure, at 39 F.R.D.

276, 277 and Wright, Federal Practice and Procedure:

da

Criminal, § 256. The arguments put forward by those au-

thorities have heen substantially watered down in effect,

however, when considered in the light of United States v.

Nobles, 422 U.S. 225, 95 S. Ct. 2160 (1975), which sustains

the government’s limited right to reciprocal pre-trial diseov-

ery in criminal cases, and in the light of Williams v.

'lorida, 399 U.S. 78, 90 S.Ct. 1893 (1970).

In Williams the court upheld a Florida state statute

which required a defendant to give notice to the state if

defendant intended to rely on an alibi defense and to then

furnish the state with a list of names of his alibi witnesses.

The state was then reciprocally required to produce for the

defendant its list of alibi rebuttal witnesses. That court

said:

“Nothing in the Fifth Amendment privilege entitles

a defendant as a mater of constitutional right to await

the end of the state’s case before announcing the na-

ture of his defense, any more than it entitles him to

await the jury’s verdict on the state’s case-in-chief be-

fore deciding whether or not to take the stand himself.”

09 U.S. 78, at 85.

In the case at hand, defendant’s trial counsel at the

time of the trial court’s initial consideration of the issue

in dispute advised the court that he intended to use the

medical records during the presentation of his case in chief.

The only condition then attached to that admission was the

claim of a doctor-client privilege, subsequently admitted

by defense counsel to be without merit, and not raised on

appeal, and the later argument of irrelevancy.

Considered in the light of defendant’s then claim that he

intended to use the questioned exhibits during his case in

chief, it appears that no substantial risk, or the exposure to

danger, of self-incrimination existed to possibly incrimi-

nate the defendant by an acceleration of the moment of dis-

closure of those exhibits.

6a

Later, upon plaintiff’s renewed request for an order re-

quiring the defendant to deliver to plaintiff copies of those

rule 16 reciprocal documents, the defendant aruged to the

court that he no longer intended to introduce those ex-

hibits into evidence during his case in chief and that,

therefore, they did not fall within the rule 16 requirement.

The trial court accepted that argument and did not require

their production. The court did, however, advise defense

counsel that it would not tolerate an attempt by the defense

to avoid the reciprocal discovery order and would not per-

mit the admission of the documents in issue into evidence

during defendant’s case in chief without prior disclosure

to the government. That order, and that admonition, were

consistent with the court’s prior rulings on the issue and,

under the faets at hand, were correct in law.

Considering the wide latitude necessarily granted trial

judges when dealing with the questions of relevancy of evi-

dence and considering the breadth of the reciprocal rule 16

order, defendant’s-declarations of error as they relate to

those subjects are without merit.

Defendant sets forth two remaining assignments of error.

He first claims reversible error because of a prosecutorial

comment made during closing argument about the failure of

defendant to produce certain evidence within the defen-

dant’s possession. No objection was made to the statement

at the time it was made and the failure of the trial court to

sua sponte strike the statement did not constitute plain

error, if error at all.

Finally, it is alleged that certain improper re-direct ex-

amination of prosecution witnesses was permitted. The

record shows that such re-direct questioning on that sub-

ject was occasioned by the defendant’s cross examination of

those witnesses. The. claimed error is without merit.

AFFIRMED.