Petition — Scales v. United States

In The

SUPREME COURT OF THE UNITED STATES = =

October Term, 1978

MICHABL RODAK, JR,, CLERK

—

JOHN E. SCALES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

‘PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

HAROLD E. WONNELL

Suite 1260 — IBM Building

140 East Town Street

Columbus, Ohio 43215

Attorney for Petitioner

JAMES C. CISSELL

United States Attorney

MARY JANE McFADDEN

Assistant United States Attorney

Room 200 — Federal Court House

85 Marconi Boulevard

Columbus, Ohio 43215

Attorneys for Respondent

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COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ...... 1

OPINIONS OF THE COURTS BELOW ......... ]

JURISDICTION .. eae ee were tome 2

QUESTIONS FOR REVIEW .................... 2

STATUTORY PROVISIONS toc hey eave ey eee

STATEMENT OF THE CASE ADIN a ROC on oh- 4

ARGUMENT ........ hewtlg dh ptite < peiaiaa a alas ne 6

1, Indictment as Evidence ..................... 6

2. Confusion as to Use of Summaries as Evidence. 7

S. ‘Welel Goust ap Agvet .........5..05.5044. 10

CONCLUSION ...... 5.6 hn. ede g ie Rae 12

APPENDICES

A. Opinion and Judgment of the United States

Court of Appeals for the Sixth Circuit ..... la-lla

B. Judgment and Probation/Commitment Or-

der of United States District Court for the

Southern District of Ohio, Eastern Division . 12a

TABLE OF AUTHORITIES

Cases: Page

Elder v. United States, 213 F.2d 876 (5th Cir.

1954), cert. denied, 348 U.S. 901, rehearing de-

oe

Garner v. United States, 244 F.2d 575 (6th Cir.

1957) , cert. dented, 355 US. 8382 ..............

Gariepy v. United States, 189 F.2d 459 (6th Cir.

oo an, BIRT NIE, tiers 0 Ao EN

Steele v. United States, 222 F.2d 628 (5th Cir.

1955) , cert. denied, 355 U.S. 828 (1957) , rehear-

map Gentes, BOS CB. BIO oe. i ness...

United States v. Harris, 501 F.2d 1 (9th Cir. 1975) __

United States v. Lawhon, 499 F.2d 352 (5th Cir.

_ 1974), rehearing en banc denied, 502 F.2d 1168,

cert. denied, 419 U.S. 1121 (1975) ..............

United States v. Moody, 339 F.2d 161 (6th Cir.

1964) , cert. denied, 386 U.S. 1003 (1967) .......

United States v. Smyth, 556 F.2d 1179 at 1180 (5th

Cir. 1977), rehearing en banc denied, 557 F.2d

823, cert. denied, 484 US. 862 ..................

United States v. Wright, 542 F.2d 975, 978-979 (7th

Cir. 1976), cert. denied, 429 U.S. 1073 (1977)

1]

Statutes: Page

EER eS a, pax nign sed ue wae see me 3

ya re a sar ere neem ar er err ae . 3,4

SE Alay ee ee eer a en ere eee 3, 4

i oe Ws wc kena ss PE ee so

ee eee reas eee eee 3, 4, Ll

Rules: |

Rule 1006 of the Federal Rules of Evidence ..... 6-7, 8

Rule 19 of the Supreme Court of the United

NS ly Oe Oh! 5 he Begs ha a

Rule 21(1) of the Supreme Court of the United

NN et, Me ises et Se vin Daw tess 6

Literary References:

Cicero, The Home Book of Quotations, p. 1032,

Dodd Mead & Co., Ninth Printing .............. 9

Plato, Republic, IV, 432B, Great Treasury of West-

ern Thought, p. 861, R. R. Bowker —

New York and London, 1977 .......... .... 9-10

Wilson, Woodrow. Speech, Washington, 26 Feb.

1916, The Home Book of Quotations, p. 1028,

Dodd Mead & Co., Ninth Printing ..... , 9

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

JOHN E. SCALES,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

John E. Scales, the petitioner herein, prays that a writ

of certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Sixth Circuit in

Case Number 78-5322 decided and filed on March 8, 1979.

OPINIONS OF THE COURTS BELOW

The opinion and judgment of the United States Court of

Appeals for the Sixth Circuit in Case Number 78-5322, United

States of America, Plaintiff-Appellee, v. John E. Scales, Defen-

dant-Appellant, is attached and appears as Appendix “A.” The

judgment and probation/commitment order of the United

States District Court for the Southern District of Ohio, East-

ern Division, is likewise attached and appears as Appendix

“B.” Neither of these decisions is officially reported,

2

JURISDICTION

Jurisdiction is invoked in accordance with the provisions

of 28 U.S.C. 1254:

“Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or after

rendition of judgment or decree; . . .”

Jurisdiction is also sought to be invoked in accordance with

the provisions of Rule 19 of the Rules of the Supreme Court

of the United States Subsection (b) because of conflict in

decisions in such cases and as well to invoke the Court's

powers of supervision in regard to certain procedural matters.

QUESTIONS FOR REVIEW

1. Is prejudicial error committed in a criminal case in the

federal courts upon the admission into evidence of chart

summaries which summarize the indictment and state

conclusions as to what is not in evidence where such

chart summaries are not prepared by an expert, when

the charts summarize documents already in evidence?

2. Is prejudicial error; if any, corrected if after the trial

court admits in evidence a summary of the indictment,

the jury is instructed the indictment is not evidence

and the summaries are not evidence but are admitted

only to assist the jury in considering the evidence?

3. Is it prejudicial error for a trial court in the presence

of the jury to interrupt cross-examination upon a rele-

vant matter and openly invite an objection from the

government?

3

STATUTORY PROVISIONS

1. Title 29, United States Code, Section 501(c), reads

as follows:

“(c) Embezzlement of assets; penalty. Any person

who embezzles, steals, or unlawfully and willfully ab-

stracts or converts to his own use, or the use of another,

any of the moneys, funds, securities, property, or other

assets of a labor organization of which he is an officer,

or by which he is employed, directly or indirectly,

shall be fined not more than $10,000 or imprisoned for

not more than five years, or both.”

2. Title 18, United States Code, Sections 2, 371 and 664,

reads in pertinent part as follows: —

Section 2.

“Principals. — (a) Whoever commits an offense against

the United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as a

principal. |

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal.”

Section 371.

“If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons do

any act to effect the object of the conspiracy, each shall

be fined not more than $10,000 or imprisoned not more

than five years, or both.”

Section 664.

“Theft or embezzlement from employee benefit plan.—

Any person who embezzles, steals, or unlawfully and

willfully abstracts or converts to his own use or to the

4

use of another, any of the moneys, funds, securities,

premiums, credits, property, or other assets of any em-

ployee welfare benefit plan or employee pension bene-

fit plan, or of any fund connected therewith, shall be

fined not more than $10,000, or imprisoned not more

than five years, or both.

As used in this section, the term “any employee wel-

fare benefit plan or employee pension benefit plan”

means any employee benefit plan subject to any pro-

vision of Title I of the Employee Retirement Income

Security Act of 1974.”

STATEMENT OF THE CASE

On March 8, 1979, the United States Court of Appeals

for the Sixth Circuit affirmed the convictions of John E.

Scales on nine counts of unlawfully converting to his own

use assets of Local 423 of the Laborers’ International Union

in violation of 18 U.S.C. 371. On May 31, 1978, the date of

the above convictions, the jury acquitted Scales on six counts,

which included three charges under Section 501(C), two

charges for conversion of funds from an employee insurance

fund in violation of 18 U.S.C. 664 and one charge of mail

fraud in violation of 18 U.S.C. 1341. Scales was sentenced to

a total of ten years. .

At trial, with respect to the charges under 29 U.S.C. 501

(C), Scales admitted that he, following procedure and

custom of long standing before his tenure as business man-

ager of Local 423 from 1968 through 1977, received per diem

expenses from more than one entity, to wit; Local 423, the

International and the Laborers’ District Council. He made

no accounting for such funds but paid income tax thereon.

The defense contention throughout the trial was that the

practice of per diem allowances without submission of

itemized expense statements was a matter of custom and

long standing in Local 423 and other local unions. The cor-

5

roboration of this practice tended to support Scales defense

of lack of intent, since he admitted the receipts and ex-

penditures.

The government called Thomas Needham, comptroller of

the Laborers’ International Union and while on cross-ex-

amination, the following took place:

“BY THE COURT:

Q. Mr. Needham, in your capacity as comptroller

for the International, do you ever pass on the questions

of the reasonableness of the amount of expense that a

local may authorize in addition to the $60 a day?

A. No, Your Honor, I don't.

BY MR. WONNELL:

Q. Are you familiar with the procedure in some

locals of giving a per diem without submission of an

expense voucher or an expense account?

THE COURT: I am going to sustain an: objection

to that. |

MR. PALMER: The Government does so object,

Your Honor.

THE COURT: I will sustain the objection to that.”

One hundred sixty-one government exhibits including

thousands of pieces of paper, almost all of which were stipu-

lated as business records, were admitted in evidence. Con-

tention arises because of the admission of government ex-

hibit 145 (a copy of which, reduced considerably in size, has

been lodged with the Court), consisting of twenty-five huge

charts purporting to summarize the evidence. The first of

these charts summarizes the indictment and over objection

was admitted into evidence.

The charts were prepared by a special agent of the FBI

who testified that he is not an expert and that he and others

prepare’ ‘he charts after reviewing business records. The

trial court, over objection, admitted exhibit 145 into evidence

but told the jury in its instructions the indictment is not

evidence; the charts are not evidence but are only to serve

in your deliberations to assist in considerations regarding the

evidence.

On March 21, 1979, a letter was directed by counsel for

petitioner to the Clerk of the United States Court of Ap-

peals for the Sixth Circuit, Cincinnati, Ohio, in accordance

with Rule 21(1) of the Rules of the United States Supreme

Court, requesting that the Clerk certify all of the record in

the Court’s possession in Case No. 78-5322, United States of

America v. John E. Scales, to the United States Supreme

Court on or before April 6, 1979.

ARGUMENT

1. Indictment As Evidence

It is projudicial error to admit into evidence a summary

of the indictment and an instruction by the trial court that

the indictment is not evidence does not cure or correct such

error but is inconsistent and potentially misleading to a jury.

It has long been the practice in the trial court to send a

copy of the indictment to the jury with a proper instruction

that the indictment is not evidence nor is it to be considered

as evidence. That was done in the instant case without ob-

jection. This practice has been approved in Garner v. United

States, 244 F2d 575 (6th Cir. 1957), cert. denied, 355 U.S.

832. The trial court; however, because of a considerable

body of cases involving charts and summaries and Rule 1006

of the Federal Rules of Evidence as follows:

“Rule 1006. Summaries

The contents of voluminous writing, recordings, or

photographs which cannot conveniently be examined

in court may be presented in the form of a chart, sum-

mary, or calculation. The originals, or duplicates, shall

7

be made available for examination or copying, or both,

by other parties at a reasonable time and place. The

judge may order that they be produced in court.

was led into error, in effect, admitting the indictment (that is, a

summary thereof) into evidence.

It is clear that Rule 1006 does not provide for such a pro-

cedure nor does it provide for summaries when all documents

relied upon are marked and admitted as in the instant case.

No case cited by the government or, with all due respect,

in the opinion of the United States Court of Appeals for the

Sixth Circuit condones or passes upon in any way the ad-

mission into evidence of a summary of a criminal indictment

under any circumstance.

Certaiiily this is a matter subject to review in accordance

with the provisions of 28 U.S.C. 1254. Moreover, if such a

procedure is to be condemned, it is urged that such is well

within the meaning and intent of the power of supervision

embodied in Rule 19 of the Rules of the United States Su-

preme Court.

2. Confusion As To Use Of Summar’»s As Evidence

In Steele v. United States, 222 F2d 628 (5th Cir. 1955)

cert. denied, 355 U.S. 828 (1957) rehearing denied, 355

U.S. 875, an income tax evasion case, it was held to be

prejudicial error to send to the jury (not admitted in evi-

dence) government exhibits which were based on computa-

tions made by a government witness; the court noting that

a jury could scarcely consider them.

While in the prosecution of a conspiracy to violate the

Dyer Act, (interstate transportation of a stolen motor >

hicle), it was held error to permit an FBI agent to exhibit

charts in rebuttal to destroy the defendant’s claim he was an

unwitting “tool,” the error was not considered prejudicial

as the charts were not offered as competent evidence. Elder

8.

v. United States, 213 F2d 876 (5th Cir. 1954), cert. denied

348 U.S. 901, rehearing denied 348 U.S. 922 (1955).

In the court from which relief is sought in United States

v. Moody, 339 F2d 161 (6th Cir. 1964) cert. denied 386 U.S.

1003 (1967), a case involving the net worth approach re-

garding income tax evasion, it was held that charts presented

by an expert not based upon facts appearing in the record

are inadmissible.

A succinct statement of a problem to be encountered in the

use of summaries even under Rule 1006 is found in the fifth

syllabus of United States v. Smyth, 556 F2d 1179 at 1180

(5th Cir, 1977), rehearing en banc denied, 557 F2d 823, cert.

denied, 434 U.S. 862:

“Inasmuch as summaries are elevated under rule of

evidence to the position of evidence, care must be taken

to omit argumentative matters in their preparation lest

the jury believe that such matter is itself evidence of

the assertion it makes. Federal Rules of Evidence, Rule

1006, 28 U.S.C.A.”

In a long line of cases, summarized by citation only in the

opinion, at page 8, of the court below, beginning with Gariepy

v. United States, 189 F2d 459 (6th Cir. 1951), and ending

with United States v. Lawhon, 499 F2d 352 (5th Cir. 1974),

rehearing en banc denied, 502 F2d 1168, cert. denied, 419

U.S. 1121 (1975), courts have permitted the use of sum-

maries. Almost all of these cases were income tax evasion

cases and all of them involved voluminous records not in-

troduced in evidence. In some the summaries were admitted

in evidence while in others the summaries were only used

in jury presentation. In all cases where they were used as

evidence, as in the instant case, the in court presentation as

well as the preparation was by expert witnesses. Such is

not the case in the trial of the petitioner. The only witness

who testified regarding exhibit 145 described himself as a

“layman.” sili i —e

9

This is the first instance known to counsel where one who

describes himself as a “layman” and not an expert has ad-

* mitted preparation of summaries and is then permitted to

testify in narrative closing argument style, sans questions

and answers, over repeated objections. The trial court final-

ly, after additional objections, stopped the testimony in this

fashion. This was done only after the summary of the in-

dictment, later admitted as part of exhibit 145, was again

summarized by a “layman.”

Because of the conflict in the cases with respect to the

growing use of summaries as evidenced by the instant use

and the evident extension of their use in improper ways, pe-

titioner urges that certiorari be granted and proper guide-

lines be established.

The words of two famous and eminent scholars ring through

time and seem appropriate.

“Justice has nothing to do with expediency. Justice

has nothing to do with any temporary standard what-

ever. It is rooted and grounded in the fundamental in-

stincts of humanity.”

Woodrow Wilson, Speech, Washington, 26 Feb. 1916,

The Home Book of Quotations, p. 1028, Dodd Mead &

Co., Ninth Printing.

“Injustice often arises . . . over an over-subtle . . .

construction of the law... .”

Cicero, The Home Book of Quotation, p. 1032, Dodd

Mead & Co., Ninth Printing.

It is not too pedantic or far fetched to consider, in our

quest for a proper and just method of using summaries to

consider the words of one of the greatest of all scholars who

spoke of justice as follows: :

“Socrates. Why, my good sir, at the beginning of our

enquiry, ages ago, there was justice tumbling out at our

feet, and we never saw her; nothing could be more

10

ridiculous. Like people who go about looking for what

they have in their hands—that was the way with us—

we looked not at what we vere seeking, but at what

was far off in the distance; and therefore, I suppose, we

missed her. . . .”

Plato, Republic, IV, 432B, Great Treasury of Western

Thought, p. 861, R. R. Bowker Company, New York and

London, 1977.

3. Trial Court As Advocate

Should a trial court in the presence of the jury interrupt

cross-examination upon a relevant matter indicating the

court’s intention to sustain an objection if one is made? We

think not.

At page 3 of the opinion of the court below, the court

agrees that a question put to the witness Needham, Comp-

troller for the Laborers’ ‘nternational Union was relevant.

The exchange which occurred is as follows:

“By Mr. Wonnell (appellant’s counsel )

Q. Are you familiar with the procedure in some

locals of giving a per diem without submission of an

expense voucher or an expense account?

Psy Court: I am going to sustain an objection to

t.

Mr. Palmer: The Government does so object, Your

Honor.

The Court: I will sustain the objection to that.”

The court below reasons that since the trial court had

established by questions by the court that Needham had

no contact with determinations as to the reasonableness of

payments of per diem, he was not competent to answer the

question set out above. This is most difficult to understand

since the question is designed specifically to determine his

competency or familiarity with the subject of the inquiry.

The witness could have answered “yes” or “no.”

11

It was a critical point in the trial since petitioner had ad-

mitted no expense vouchers were submitted and that this

had been the procedure and custom for as long as he and

others could remember. If Needham was familiar with this

custom and procedure, it would have gone far to corroborate

lack of intent. At this sensitive and delicate point in the

trial for the court to intervene as an advocate was prejudicial

error.

It is quite easy for one to argue that since the jury ac-

quitted the petitioner on six counts of the indictment, _it is

clear they were not misled and, therefore, were not prej-

udiced. There is a much more persuasive argument to the

contrary. Petitioner was acquitted in those six points on

his denials that he committed the act alleged. As to the

charges under 29 U.S.C. 501(C) in question, Scales admitted

the acts and insisted on absence of mens rea. The signal

from the trial court is clear, before the jury, that either such

corroboration as sought is inadmissible or not to be taken

into account in any event.

Petitioner urges that the United States Supreme Court,

both in review in accordance with the plain error doctrine

and the supervisory powers in Rule 19, that lower courts

should follow the prescription of conduct laid down in

United States v. Harris, 501 F2d 1 (9th Cir. 1974), where

when cross-examination was interrupted the Court held in

syllabus 12:

“Trial Court must be ever mindful of the sensitive role

it plays in a jury trial and avoid even appearance of

advocacy or partiality.”

While the court below cites United States v. Wright, 542

F2d 975, 978-979, (7th Cir. 1976) cert. denied 429 U.S. 1073

(1977), in that case the trial judge was held not to become

an advocate or litigant by stopping on his own motion direct

or cross-examination when an improper line of inquiry is

12

being explored. How can Wright be authority here when the

court below held the inquiry relevant?

To continue to condone such conduct is to invite it on a

continuing basis.

CONCLUSION

For all of the reasons set forth herein, the petition for writ

of certiorari should be allowed.

Respectfully submitted,

HAROLD E. WONNELL

Suite 1260 — IBM Building

140 East Town Street

Columbus, Ohio 43215

(614) 224-7291

Attorney for Petitioner

APPENDIX A

No. 78-5322

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,’

Plaintiff-Appellee,| On AppeaL from the

Southern District of

Ohio, Eastern Divi-

Joun E. SCALEs, sion.

Defendant-Appellant.

V.

Decided and Filed March 8, 1979.

Before Livety and Kertu, Circuit Judges, and Taytor,°

District Judge.

Taytor, District Judge. John E. Scales has appealed his

conviction on nine counts of unlawfully converting to his own

use assets of Local 423 of the Laborer’s International Union in

violation of 29 U.S.C. § 501(c) and one count of conspiracy

in violation of 18 U.S.C. § 371. He was acquitted on the six

remaining counts, which included three charges under Section

501(c), two charges for conversion of funds from an em-

ployee insurance fund in violation of 18 U.S.C. § 664, and one

charge of mail fraud in violation of 18 U.S.C. § 1341. He was

given an aggregate sentence of ten years.

* The Honorable Robert L. Taylor, District Judge, United States

District Court for the Eastern District of Tennessee, sitting by des-

ignation.

la

2a

From 1968 through 1977, appellant was the business mana-

ger of Local 423 of the Laborer’s International Union, a labor

organization as that term is used in 29 U.S.C. § 401.531.

Count I of the indictment charged him with conspiracy to

embezzle and misapply the funds of Local 423 and the Ohio

Laborer’s District Council — Ohio Contractor’s Association

Insurance Fund. A number of overt acts were alleged in

furtherance of the conspiracy including receiving double pay-

ments for expenses, receiving payment for expenses not in-

curred, using Local 423 funds for personal expenses of no

benefit to the members of the Union and receiving interest

free loans made for fraudulent purposes from union funds. All

but one of the substantive counts upon which appellant was

convicted were also charged as overt acts. Count XV involved

similar self dealing with union funds.

At trial, the Government introduced 161 exhibits, con-

sisting of thousands of pages of documents, and the testi-

mony of eight co-conspirators who had previously pleaded

guilty to conspiring with appellant to embezzle union funds.

Seventeen other witnesses also testified, including FBI Agent

Charles A. Tosi, who prepared Government’s summary ex-

hibit, Exhibit 145. The trial lasted eight days.

Appellant raises two questions on appeal: One, whether the

trial judge erred prejudicially in interrupting the testimony of

a Government witness on cross-examination and inviting the

Government to object; and Two, whether the trial judge erred

prejudicially in admitting Government Exhibit 145 and in

admitting the testimony of Special Agent Tosi of the FBI

in connection with said exhibit.

Testimony of Thomas Needham

Thomas Needham, Comptroller of the Laborer’s Interna-

tional Union, testified on direct examination to the absence of

official union business at various time and places in 1974-76,

and also to the issuance of per diem expenses and payments

for airfare from the International to appellant on the occasion

3a

of the September 1976 International Union convention in Mi-

ami, Florida. On cross-examination, he was asked if he were

familiar with the practice in some local unions of paying a per

diem in addition to funds paid by the International. He re-

plied that he did not have “first-hand knowledge” of such a

practice. Over the Government’s objection, he was neverthe-

less permitted to testify that it was his understanding that

the International did permit such a practice, if payment were

reasonable, and that some local unions did in fact supplement

expenses payments from the International. At this point, the

Court inquired further of the witness concerning his personal

familiarity with the determination of the reasonableness of

payments by the local unions. The witness answered that he

had no contact with that determination. At this point, the

following exchange occurred:

By Mr. Wonnell [appellant’s counsel]

Q. Are you familiar with the procedure in some locals

of giving a per diem without submission of an ex-

pense voucher or an expense account?

The Court: I am going to sustain an objection to that.

Mr. Palmer: The Government does so object, your

Honor.

The Court: I will sustain the objection to that.

Appellant claims that the Court committed error in sustaining

the objection, and suggested bias against appellant by inter-

vening before an objection was made by the Government.

Although the Court agrees with appellant that the question

posed was relevant,' the trial judge committed no error in

ruling that the witness could not answer the question at issue.

'The Government argues, inter alia, that the question posed was

irrelevant to the crimes charged because appellant was charged with

receiving double airfare rather than double per diem. The Court

notes that Counts X and XIV included an allegation of double pay-

ment of expenses as well as double payment of airfare.

4a

The witness had stated at the outset of cross-examination that

he lacked personal knowledge of local union practices in regard

to additional expense payments and was therefore not com-

petent to answer the question.

Nor was there any error in the manner in which the trial

judge sustained the Government’s objection. A trial judge

must not give an impression of partisanship on either side.

United States v. Ornstein, 355 F.2d 222, 224 (6th Cir. 1966).

That duty, however, does not require the trial judge to sit

idly by while incompetent evidence is presented to the jury.

See United States v. Wright, 542 F.2d 975, 978-979 (7th Cir.

1976), cert. denied 429 U.S. 1073 (1977).? The trial judge’s

action in this case did not contain any suggestion of bias

against the appellant.

In addition to the foregoing, the court’s action in inviting

objection was particularly appropriate in this instance because

the Government had objected moments earlier apparently on

the basis of the witness’ lack of personal knowledge of the

subject matter. The court overruled the objection at that time.

The trial judge may well have felt that the Government

would not renew its objection in view of the court’s earlier

ruling. In such a case, a ‘rial court would have to give some

indication that an objection might be reconsidered before the

Government could be expected to bring the matter up again.

Government Exhibit 145 and Related Testimony

Appellant contends that the trial judge erred in allowing

Government Exhibit 145 to be admitted into evidence as well

as in permitting Special Agent Charles Tosi to testify con-

cerning the exhibit. Appellant argues that the exhibit was

inadmissible and prejudicial because it summarized the in-

2 United States v. Wright, 542 F.2d 975 (7th Cir. 1978), cert.

denied, 429 U.S. 1073 (1977), was overruled by United States v. Hol-

linger, 553 F.2d 535 (7th Cir. 1977), on a different issue from that

presented here. ta a

5a

dictment and part of the Government’s proof, thereby con-

stituting conclusion and argument, and that Agent Tosi’s tes-

timony contained improper conclusions and argument.

Exhibit 145 consisted of a series of large charts. The first

chart summarized all the charges contained in the indictment.

Each of the remaining charts summarized a count or an overt

act, or both, by reproducing, or making reference to, some

of the documentary proof already in evidence. The only

references in Exhibit 145 that were not to documents ad-

mitted previously into evidence were several statements in

the charts that union records did not contain certain informa-

tion. The charts were authenticated by Agent Tosi.

There was no prejudicial error committed by the admission

of Exhibit 145. In regard to the summary of the indictment,

the rule is clear that the trial judge has discretion to submit

the indictment to the jury in a criminal case as long as limiting

instructions are given to the effect that the indictment is not to

* be considered as evidence of the guilt of the accused. See

Garner v. United States, 244 F.2d 575 (6th Cir. 1957), cert.

denied, 355 U.S. 832; United States v. Russo, 480 F.2d 1228,

1244 (6th Cir. 1973), cert. denied, 414 U.S. 1157 (1974).

Such a charge was given in this case. Indeed, the actual in-

dictment was submitted to the jury in this case, and appellant

raises no objection in that regard.

Nor can appellant claim that he was prejudiced by this chart

because it was a summary rather than a copy of the full in-

dictment. Not only was the Government’s summary not in-

flammatory or prejudicially worded, the summary contained

only enough description of the charges to remind the jury

of the substance of each count. The trial judge carefully

charged the jury as to all of the elements necessary for con-

viction on each count. The summary of the indictment clearly

was intended to aid the jury in organizing the proof and no

rights of appellant were prejudiced by its admission into evi-

dence. Cf. United States v. Swan, 396 F.2d 883, 886-887

(2nd Cir. 1968), cert. denied, 393 U.S. 923.

6a

The remainder of Exhibit 145 consisted of a summary of

some of the objective proof relating to a number of the counts

and overt acts charged. The Government argues that the

exhibit was admissible under Fed.R.Evid. 1006, which pro-

vides as follows:

The contents of voluninous writings, recordings, or pho-

tographs which cannot conveniently be examined in court

may be presented in the form of a chart, summary, or

calculation. The originals, or duplicates, shall be made

available for examination or copying, or both, by other

parties at reasonable time and place. The court may

order that they be produced in court.

Insofar as Exhibit 145 contained summaries of other ex-

hibits in evidence, appellant contends that Rule 1006 does not

apply because each document listed could have been, and

was, examined at the time of its admission. There is no re-

quirement in Rule 1006, however, that it be literally impossible

to examine the underlying records before a summary or chart

may be utilitzed. All that is required for the rule to apply is

that the underlying “writings” be “voluminous” and that in-

court examination not be convenient. With 161 exhibits, in-

volving facts relevant to sixteen counts and twenty-one overt

acts, comprehension of the exhibits would have been dif-

ficult, and certainly would have been inconvenient, without the

charts utilized by the Government. See United States v. Evans,

572 F.2d 455 (5th Cir. 1978), rehearing en banc denied, 576

F.2d 931. }

Exhibit 145 also contained written statements that union

records did not contain certain information, primarily au-

thorization for travel. Appellant argues that this information

is not covered by Rule 1006 because this is information that

records do not contain, and thus is not a summary of their

contents as required by the rule.

Appellant admits that the underlying union records could

have been introduced to prove the nonoccurrence of the .

relevant matters under Fed.R.Evid. 803(7). If the records

eee

Ta

themselves could have been admitted to show what their con-

tents did not include, there appears to be no reason why Rule

1006 would not apply to a summary of their contents. It

is true that in such an instance the content of the records is

negative, but that does not render the fact of omission any

less an accurate summary of the content of the records. The

Court is strengthened in this conclusion by the similar view

of 4 Wigmore, Evidence § 1230 (Chadbourn rev. 1972):

[T]estimony, by one who has examined records, that

no record of a specific tenor is there contained is re-

ceivable instead of producing the entire mass for perusal

in the courtroom.

(Emphasis in original )

It is to this section in Wigmore, though apparently to an

earlier edition, that the Advisory Committee referred in its

explanatory note for Rule 1006. See Rules of Evidence, 56

F.R.D. 183, 345-346 (1972) (Advisory Committee’s Note);

cf. United States v. Smyth, 556 F.2d 1179®)183 n. 9 (5th Cir.

1977), rehearing en banc denied, 557 F.2d 823, cert. denied,

434 U.S. 862.

Of course even under Rule 1006, the summary or chart

must be accurate, authentic and properly introduced before

it may be admitted in evidence. See United States v. Denton,

556 F.2d 811, 816 (6th Cir. 1977), cert. denied, 434 U.S. 892.

In this regard appellant urges in general terms that Exhibit

145 is replete with characterizations and conclusions, and is

deceptive. After a careful examination of Exhibit 145, the

Court is unable to find any misleading or conclusory ref-

erences. Exhibit 145 appears to present merely an organiza-

tion of some of the undisputed objective evidence in terms

of the relevant counts of the indictment.

Appellant also complains that the charts were too large and

that the authenticating testimony was insufficient because

Agent Tosi was not an expert. Size alone does not render

inadmissible an exhibit containing otherwise unobjectionable

8a

objective evidence. Cf. United States v. Nathan, 536 F.2d

988, 992 n. 5 (2nd Cir. 1976), cert. denied, 429 U.S. 930. Given

the nature of Exhibit 145, it is difficult to see how Agent Tosi’s

lack of expertise could have prejudiced appellant. The chart

did not contain complicated calculations that would require an

expert for accuracy. In order to authenticate Exhibit 145

it was necessary only that Agent Tosi had properly catalogued

the exhibits previously admitted and had knowledge of the

analysis of the union records referred to in the exhibit. Neither

of these requirements necessitated any special expertise. As

the one who supervised the compilation of Exhibit 145, Agent

Tosi was the proper person to attest to the authenticity and

accuracy of the chart. See Weinstein’s Evidence, J 1006[06].

Entirely aside from Rule 1006, there would still be ample

authority for the admission of Exhibit 145 into evidence.

There is an established tradition, both within this circut and in

other circuits, that permits a summary of evidence to be put

before the jury with proper limiting instructions. See e.g.,

Gariepy v. United States, 189 F.2d 459 (6th Cir. 1951);

Epstein v. United States, 246 F.2d 563 (6th Cir. 1957), cert.

denied, 355 U.S. 868; Barber v. United States, 271 F.2d 265

(6th Cir. 1959); United States v. Bartone, 400 F.2d 459 (6th

Cir. 1968), cert. denied, 393 U.S. 1027 (1969); United States

v. Rath, 406 F.2d 757 (6th Cir. 1969), cert. denied, 394 U.S.

920; United States v. Lattus, 512 F.2d 352 (6th Cir. 1975);

Carlson v. United States, 187 F.2d 366 (10th Cir. 1951);

Gordon v. United States, 438 F.2d 858 (5th Cir. 1971), cert.

denied, 404 U.S. 828; United States v. Downen, 496 F.2d 314

(10th Cir. 1974), cert. denied, 419 U.S. 897; United States v.

Lawhon, 499 F.2d 352 (5th Cir. 1974), rehearing en banc

denied, 502 F.2d 1168, cert. denied, 419 U.S. 1121 (1975).

These cases normally involve violation of income tax laws but

there has never been any formal distinction between the use of

summaries in that type of case and in other types of criminal

cases. Cf. United States v. Conlin, 551 F.2d 534, 538 (2nd Cir.

1977), cert. denied, 434 U.S. 831, and United States v. Jalbert,

9a

504 F.2d 892, 894 (Ist Cir. 1974) (both citing United States

v. Gordon, supra, a case involving misapplication of bank

funds). Some cases allow the summary of purely testimonial

evidence, e.g., Epstein v. United States, 246 F.2d at 570;

Barber v. United Stutes, supra, so strictly speaking, such sum-

maries cannot be said to come within the requirements of

Rule 1006. The purpose of the summaries in these cases is

simply to aid the jury in its examination of the evidence al-

ready admitted. See United States v. Downen, supra. Au-

thority for such summaries is not usually cited, but would

certainly exist under Fed.R.Evid. 611(a). See Weinstein’s

Evidence {| 1006[03].

The danger of permitting presentation of a summary of

some of the evidence in a criminal case is plain. The jury

might rely upon the alleged facts in the summary as if these

facts had already been proved, cf. United States v. Moody,

339 F.2d 161 (6th Cir. 1964), cert. denied, 386 U.S. 1003

(1967), or as a substitute for assessing the credibility of wit-

nesses. Cf. Steele v. United States, 222 F.2d 628 (5th Cir.

1955), cert. denied, 355 U.S. 828 (1957), rehearing denied,

355 U.S. 875. This danger has led to the requirement of

“guarding instructions” to the effect that the chart is not

itself evidence but is only an aid in evaluating the evidence.

See Holland v. United States, 348 U.S. 121, 128 (1954);

United States v. Bartone, 400 F.2d at 461. Even with such

instructions, a summary may still be considered as too con-

clusory or as emphasizing too much certain portions of the

Government’s case, or as presenting incompetent facts. See

United States v. Conlin, supra; United States v. Abbas, 504

F.2d 123 (9th Cir. 1974), cert. denied, 421 U.S. 988 (1975);

Elder v. United States, 213 F.2d 876 (5th Cir. 1954), cert.

denied, 348 U.S. 901, rehearing denied 348 U.S. 922 (1955).

Trial courts may take care that such unfair summaries are

not presented to juries.

Despite the danger, however, most summaries are routinely

admitted. See cases, supra. In fact, not only are the sum-

10a

maries themselves admitted, but computations and evalua-

tions are often permitted on the basis of such summaries. E.g.,

Epstein v. United States, supra.

In contrast to such extensive use, this appeal presents a

very limited utilization of an evidence summary. The facts

of the case were complex. Thus the summary was likely to

have been very helpful to the jury. The facts summarized

were entirely objective, and, for all that appears from this

appeal, uncontested. No issue of credibility was presented.

The exhibit was in no sense conclusory, but stated the facts

shown in a neutral way. The facts summarized did not even

directly undermine appellant’s theory of the case. Finally,

the trial judge did instruct the jury as to the limited purpose

that such a summary could serve.?

Appellant’s final argument is that the trial court improperly

permitted Agent Tosi to deliver a closing argument during his

authentication of the summary. Ultimately the trial court

accepted appellant’s objection and limited Agent Tosi’s testi-

mony. Because Exhibit 145 was essentially a presentation of

objective material which aided the jury in remembering

portions of the evidence and sorting out the charges, there

was really no need for Agent Tosi to restate the portions of

the evidence contained in Exhibit 145. Under these circum-

3 Appellant has not specifically raised the issue of permitting such

a summary to go to the jury during deliberations. At is appears that

Exhibit 145 did accompany the jury, appellant’s objection to this

course may be viewed as implicit. It is certainly not unsual for such

demonstrative evidence to go to the jury. See United States v. Downen,

supra; United States v. Goichman, 407 F.Supp. 980 (E.D. Pa. 1976),

affd 547 F.2d 778. In most cases, however, once the summary is con-

sidered properly admitted, the issue of its going to the jury is not

separately raised. It appear: generally that when such summaries are

kept from the jury, it is either because they were not properly

offered into evidence, cf. Gordon v. United States, supra, or because

the summary was considered unfair or unreliable for the reasons

listed above. See Steele v. United States, supra; cf. United States v.

Abbas, supra. For essentially the same reasons we rule that this ex-

hiL# was properly admitted, we conclude that no right of appellant

was prejudiced by its submission to the jury.

ee

lla

stances, it would perhaps have been preferable had the trial

judge ruled from the start of Agent Tosi’s testimony that

Exhibit 145 was essentially self-explanatory. The Court need

not decide this issue, however, because the early portion of

Agent Tosi’s testimony consisted of an accurate recounting

of certain objective evidence already before the jury. No

rights of appellant could have been prejudiced by such a

recital.

For the foregoing reasons, the judgment of the trial court

is affirmed.

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