Petition — Fleener v. United States

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Supreme Court, U.& ~

| FILED |

78-1649

APR 19 1979

MICHABL RODAK, JR., CLERK

NO. TAL SS “—

Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA,

Plaintiff-Respondent

Vv.

RICHARD FRANKLIN FLEENER,

Defendant-Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES M. MCDONALD

Attorney at Law

505-12 Alico Bldg.

Waco, Texas 76701

JACK N. PRICE

Attorney at Law

306 E. 11th St., Suite L-7

Austin, Texas 78701

Attorneys for Defendant-A ppellant.

Alpha Law Brief Co., One Main Plasa, No. 1 Main St., Houston, Texas 77002

TABLE OF CONTENTS

Page

a i

ee ii

Sh Bee Se Oe ii

STATUTES AND RULES .................eeeeeees iii

ee 2 iii

RE ee 1

BESET 2

GQUESTEONS PRESENTED ......................... 2

ees Me... .............. 00005. 3

STATEMENT OF THE CASE ..................0.00- 4

pS ES a 5

1. THE EVIDENCE IS INSUFFICIENT TO SUP-

PORT A CONVICTION OF AN OFFENSE DE-

FINED BY THE HOBBS ACT. ............... 5

2. THE EVIDENCE IS INSUFFICIENT TO SHOW

THAT COMMERCE HAS BEEN OBSTRUCT-

ED, DELAYED OR AFFECTED .............. 20

3. THE TRIAL COURT ABUSED ITS DISCRE-

TION IN PERMITTING, WITHOUT PROPER

FOUNDATION OR PREDICATE, INCOHER-

ENT, INAUDIBLE AND PARTIAL TAPES TO

BE PLAYED, INTERPRETED AND USED

THROUGHOUT THE ENTIRE TRIAL, SUCH

TAPES, AS A WHOLE, BEING SO UNTRUST-

WORTHY AS TO DENY APPELLANT DUE

POA GF Me av entcsesccdecrscscccees. 26

4. THE FAILURE OF THE TRIAL COURT TO

REQUIRE THAT A RECORD BE MADE OF

THE PORTIONS OF THE TAPES PLAYED IN

OPEN COURT AND THREE BENCH CON-

FERENCES, DENIED DEFENDANT ADEQU-

ATE APPELLATE REVIEW AND EFFECTIVE

ASSISTANCE OF COUNSEL ON APPEAL. .... 41

5. THE DEFENDANT WAS CONVICTED OF AN

OFFENSE NOT CHARGED IN THE INDICT-

MENT, ON THE BASIS OF EVIDENCE EX-

TRANEOUS TO THE INDICTMENT .........

6. THE INDICTMENT IS DUPLICITOUS. ......

Ne rege ces Gaius icneson cunt

CERTIFICATE OF SERVICE .............0ceeeeeees

LIST OF AUTHORITIES

CASES

Abney v. United States, US. , 97 S.Ct. 2034

SOE odinedi candied inde ce ehueecedbessviuescays oi

Anders v. California, 386 U.S. 743 (1967) ..........4..

Coppedge v. United States, 369 U.S. 443 (1962) .......

Crosby v. United States, 339 F.2d 743 (D.C. Cir. 1964)

Douglas v. California, 372 U.S. 353 (1963) ........0008.

Entsminger v. State of Iowa, 386 U.S. 748 (1967) ......

Gorin v. United States, 313 F.2d 641 (1st Cir. 1963) ...

Howard v. Daggett, 526 F.2d.1388 (9th Cir. 1976) .....

Independent Warehouses, Inc. v. Scheele, 67 S.Ct. 1062

CREE uaa h edb 6a pew hhs OAS DRA RRR RA cee 6 cd oes

Monroe v. U. S., 234 F.2d 49 (D.C. Cir. 1956) .......

Nick v. United States, 122 F.2d 660 (8th Cir.) ........

Stirone v. United States, 361 U.S. 212 (1960) ..........

Thomas v. United States, 369 F.2d 372 (9th Cir. 1966)

Todisco v. United States, 298 F.2d 208 ...............

United States v. Addonizio, 451 F.2d 49 (3d Cir.) ......

United States v. Brumley, 560 F.2d 1268 (Sth Cir. 1977)

United States v. Bryant, 480 F.2d 785 (2d Cir. 1973) ...

United States v. Carlson, 423 F.2d 431 (9th Cir. 1970)

United States v. Carson, 464 F.2d 424 (2d Cir. 1972) .

United States v. Frazier, 479 F.2d 983 (2d Cir. 1973) ...

United States v. Fuentes, 563 F.2d 527 (2d Cir. 1977) ...

United States v. Gerry, 515 F.2d 130 (2d Cir. 1975) ...

United States v. Hyde, 448 F.2d 815 (Sth Cir. 1971) ...

United States v. John, 508 F.2d 1134 (8th Cir. 1975) ...

United States v. Jones, 540 F.2d 465 (10th Cir. 1976) ...

United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976) ...

38, 40

TIT

CASES Page

United States v. Knohl, 379 F.2d 427 (2d Cir. 1967) .... 37

United States v. McGarrity, 559 F.2d 1386 (Sth Cir. 1977) 45

United States v. Merolla, 523 F.2d 51 (2d Cir. 1975) ... 25

United States v. Piascik, 559 F.2d 545 (9th Cir. 1977) ... 49

United States v. Provenzano, 334 F.2d 678 (3d Cir. 1964) 21, 22°

United States v. Schackelford, 494 F.2d 67 (9th Cir. 1974) 21

United States v. Selva, 559 F.2d 1303 (Sth Cir. 1977) ... 46,49

United States v. Starks, 515 F.2d 112 (3d Cir. 1975)

Galea a Mad tity «eat bead ke ace aces ae 25, 31, 37, 56, 57, 58

United States v. Upshaw, 448 F.2d 1218 (Sth Cir. 1971) 47

United States v. Williams, 455 F.2d 361 (9th Cir. 172) 45

United States v. Workcuff, 422 F.2d 700 (D.C. Cir. 1970) 47

STATUTES AND RULES

Federal Rules of Criminal Procedure:

SCE a's case CE PY Mea hed Mansion sk hae 56

ere Ce eae or Lee as tie ae 41

Federal Rules of Evidence:

ee i Ee oe dad kaa e NRA 40

United States Code Annotated:

Ue el ae as Cle cies swath 3,4, 21

ED iia hasten cash hee hho deen ekenw se s 2

United States Constitution:

Amendment V ............ ley ce eee ies a 41

Ce cane ea ee oe oe 41

nN ee | 41

ad eed oe, Ue 21

Wright, Federal Practice and Procedure:

pe Me Be Se ee oe ev niedeue cia ecb 56

NO. 78-1988

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA,

Plaintiff-Respondent

Vv.

RICHARD FRANKLIN FLEENER,

Defendant-Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Petitioner, Richard Franklin Fleener, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit

entered in this proceeding on January 19, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals is unpublished.

No opinion was rendered by the District Court. Copies

of the opinion of the Court of Appeals for the Ninth

vircuit and the judgment of the District Court are attached

as Appendices.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 19, 1979. A timely filed petition for rehearing

and petition for rehearing en banc was denied on March

9, 1979, and this petition for certiorari is timely filed.

Jurisdiction is invoked under 28 U.S.C., 1254(1).

QUESTIONS PRESENTED

1. Is the evidence sufficient to support a conviction of

an offense defined by the Hobbs Act?

2. Is the evidence sufficient to show that commerce

has been obstructed, delayed, or affected?

3. Did the District Court abuse its discretion in per-

mitting incoherent, inaudible, and partial tapes to be

played, interpreted, and used throughout the trial?

(a) Were the unintelligible and inaudible portions

of tapes admitted as evidence so substantial as to render

the recordings as a whole untrustworthy, thereby denying

appellant due process of law?

(b) Was a sufficient predicate or foundation for the

admission of the tape recordings established?

4. Did the failure of the Trial Court to require that

a record be made of the portions of the tapes played in

open court and three bench conferences deny the de-

fendant adequate appellate review and effective assistance

of counsel on appeal?

5. Was the defendant convicted of an offense not

charged in the indictment, on the basis of evidence extra-

neous to the indictment? -

6. Is the indictment upon which the conviction is

based duplicitous?

STATUTE INVOLVED

The statute involved is 18 U.S.C., § 1951, popularly

known as the Hobbs Act, which provides as follows:

§ 1951. Interference with commerce by threats or

violence

(a) Whoever in any way or degree obstructs, delays,

or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion, or at-

tempts or conspires so to do, or commits or threatens

physical violence to any person or property in furtherance

of a plan or purpose to do anything in violation of this

section shall be fined not more than $10,000 or im-

prisoned not more than twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful tak-

ing or obtaining of personal property from the

person or in the presence of another, against his will,

by means of actual or threatened force, or violence,

or fear of injury, immediate or future, to his person

or property, or property in his custody or possession,

or the person or property of a relative or member

of his family or of anyone in his company at the

time of the taking or obtaining.

(2) The term “extortion” means the obtaining of

property from another, with his consent, induced

by wrongful use of actual or threatened force, vio-

lence, or fear, or under color of official right.

(3) The term “commerce” means commerce

within the District of Columbia, or any Territory or

Possession of the United states; all commerce be-

tween any point in a State, Territory, Possession, or

the District of Columbia and any point outside

thereof; all commerce between points within the

same State through any place outside such State;

and all other commerce over which the United States

has jurisdiction.

modify or affect section 17 of Title 15, sections 52, 101-

115, 151-166 of Title 29 or sections 151-188 of Title 45.

June 25, 1948, c. 645, 62 Stat. 793.

STATEMENT OF THE CASE

Defendant-Petitioner Richard Franklin Fleener, a Clark

County, Nevada, Deputy Tax Assessor, was charged by

one count indictment with the violation of interference

with commerce by extortion under 18 U.S.C., § 1951.

It was alleged in the indictment that he demanded and

solicited money and property from D’Jamshid Mahban,

a Las Vegas rug merchant, to prevent loss due to in-

creased and manipulated personal property tax assess-

ments. He was tried before a jury in the United States

District Court, District of Nevada, on his plea of not

guilty, in Cause number Criminal-LV77-141, RDF-

(DWW). The jury returned a verdict of guilty on March

15, 1978. He was sentenced in Los Angeles, California,

on April 17, 1978. The court assessed punishment at a

period of three years in the custody of the Attorney

General. His appeal to the Ninth Circuit resulted in the

opinion rendered on January 19, 1979.

Since the questions presented in this application directly

involve the sufficiency of evidence, and various procedural

and evidentiary rulings, further discussion of the facts is

set forth in conjunction with the specific contentions of

error.

ARGUMENT

1. The Evidence Is Insufficient To Support A Con-

viction Of An Offense Defined By The Hobbs Act.

The indictment charges extortion in that Mr. Fleener

(1) attempted to obtain money and property and (2) did

obtain approximately $500, induced under the color of

official right by demanding and soliciting from Mahban

$500 which was paid (a) to lower the property tax as-

sessment of Mahban, and (b) to prevent economic loss

to Mahban due to increased and manipulated personal

property tax assessments in violation of § 1951 Title 18,

U.S.C. (the Hobbs Act.)

The Hobbs Act proscribes robbery or extortion, or

attempts or conspiracies to rob or extort which in any

way or degree obstrucis, delays, or affects commerce.

Extortion is defined as the obtaining of property from

another with his consent induced by wrongful use of

actual or threatened force, violence, or fear, or under

color of official right. Analyzing the indictment in light

of the statute, it charges that Mr. Fleener, under color

of official right," (1) attempted to obtain money and

1. The Government’s theory of its proof was contrary to the

allegations of the indictment. At Page 229 of the Reporter’s trans-

cript of proceedings, the attorney for the Government stated: “The

gist of the extortion was the obtaining of money and property under

color of official right, or induced by fear of economic harm.” As the

attorney for the Government noted (Rec. Vol. 1, p. 229), this

theory was put forth before the jury in the opening statement. It was

‘ikewise argued in the Government’s opening and closing arguments,

-1 ' the court charged on both theories of extortion. (Rec. Vol. 2,

property and (2) did obtain $500.* The specification of

the wrongful actions taken “under the color of official

right” injects an element of confusion and vagueness into

the indictment. Part (a) above, is readily understood,

for it accuses Mr. Fleener, in language that is compre-

hensible, of soliciting money to lower Mahban’s property

tax assessment. Part (b) is incomprehensible. There is

simply no way to determine, from the wording of the

indictment, what is meant by the allegation that $500

was paid “to prevent economic loss . . . due to increased

and manipulated personal property tax assessments.” The

key to the meaning intended is to be found in a discussion

occurring during the presentation of Motion for Acquittal

after conclusion of the Government’s case. Defendant’s

counsel argued that the Government had shown no evi-

dence of threats, compulsion, or duress. The court inter-

rupted (Rec. Vol. 1, p. 226), and ventured the opinion

that the Government’s theory was

that the design on the part of the defendant was to

put the fear in Alex [Djamshid Mahban] that if he

didn’t go along and pay the money, that this man,

under color of authority, had the right to go high

and above what the merchant thought his inventory

was worth, or valued at, and that he, the merchant,

would end up with a much higher tax bill. . . .

Defendant’s attorney responded that this was being heard

for the first time, and that the Government contended

p. 430). However, it is clear that the indictment covers only extor-

tion “induced under the color of official right.” This variance in the

indictment, proof, and charge to the jury is the subject of a separate

point of error.

2. The fact that the one count indictment is duplicitous in that

it charges both attempt and actual extortion is also the subject of

a separate point of error.

that Fleener was charged “with the idea that ‘I'll lower

your taxes if you'll pay me money, that we will reduce

your taxes.’” (Rec. Vol. 1, p. 227-28) The Government

then asserted that the gist of the extortion was obtaining

money under color of official right, or induced by fear

of economic harm (i.e. by duress). It was contendea

that the two theories were alleged in the alternative in

the indictment (which clearly is not the case). The Gov-

ernment then stated that Mr. Fleener had the power to

do certain things, “one of which was to assure the con-

tinued financial successful operation of an_ interstate

business, namely, by adjusting, up or down as the case

may be, the tax assessment.”*® This, then provides the

key to understanding part (b). whereas part (a) accuses

Fleener of offering, for money, to adjust, improperly, the

property tax assessment downward, part (b) accuses

Fleener of offering, for money, to prevent economic loss

by refraining from adjusting the personal property tax

assessment upward.‘

The Government’s scenario is that on November 17,

1977, after a call from a “friend” Mahban was visited

by Mr. Fleener. The conversation that ensued during this

3. The second (and only other) thing the Government contended

Mr. Fleener represented he had the power to do was “having a direct

impact or influence on the federal tax assessment.” This clearly is

beyond the scope of the indictment, which refers only to money being

paid to lower the property tax assessment, and to prevent economic

loss due to increased and manipulated personal property tax assess-

ments. It is not even arguable that these references comprehend

federal tax assessments.

4. This reference to the Government’s declared theory does not

cure the vagueness in the indictment, (a condition exemplified by the

apparent confusion of the court, defendant’s counsel, and Govern-

ment’s counsel over the nature of the charges) but serves to define

the extent of the charges possibly included in the indictment in order

to test the evidence supporting the conviction.

first visit caused Mahban concern, so he consulted an

attorney who advised him to attend a proposed second

meeting with Mr. Fleener, and equipped him with a tape

recorder. The second meeting was held on November

18th and, with the concealed tape recorder on his person,

Mahban purportedly recorded approximately one-half of

the conversation. During a visit to Los Angeles on No-

vember 19th, Mahban reportedly was advised by the

husband of the girlfriend of his girlfriend to contact the

F.B.I., which he did on his return to Las Vegas. The

F.B.I. outfitted Mahban with another recorder and a

transmitter, and marked three $100 bills to be used as

“bait money”. A third meeting was then held with Mr.

Fleener on November 21, 1977, under the surveillance

of the F.B.I., who monitored the conversation through

the transmitter and hand-held walkie-talkies. A recording

of this conversation was obtained, through the concealed

tape recorder. Mr. Fleener was arrested by the F.B.I.

agents immediately after the completion of the conversa-

tion with Mahban, and was found to be in aencanen of

the three marked $100 bills.

The Government elicited evidence from a total of nine

witnesses. Four of these—T’Kindt, Smith, Scobie and

Parker—were F.B.I. agents. The agents testified only as

to the contact by Mahban, and the mechanics of wiring

Mahban for sound, the surveillance, and the arrest of

Fleener. None of them gave any evidence relating to

substantive elements of the alleged offense.°

5. Agent T’Kindt testified that he made transcripts from the tapes

made during the meeting of November 18th (before the F.B.I. was

contacted) and November 21st (after the F.B.I. was contacted), and

these were offered by the Government (Rec. Vol. 1, p. 43),

but the court found the transcripts to be unreliable and refused to

admit them in evidence. (Rec. Vol. 1, p. 88-89).

The witness Ricardo was a deputy assessor who ac-

companied Fleener to Mahban’s place of business on

November 21, 1977. He was not present during any con-

versation between Mr. Fleener and Mahban, and gave

no evidence relating to the offense. Terry Leavitt was an

associate in the office of Mahban’s attorney, and testified

about Mahban’s being outfitted with a tape recorder after

Mr. Fleener’s visit on November 17, 1977. He gave no

testimony relating to the offense.° The witness Jean Dut-

ton, Clark County Tax Assessor, simply identified Mr.

Fleener, and others, as employees of the Tax Assessor’s

office, and the witness Killingsworth was introduced and

identified, but did not give evidence on any subject.

Therefore, the only evidence upon which the Govern-

ment can rely to sustain the conviction is the testimony

of Mahban.’

Mahban testified that he is known as Alexander, that

he has several businesses in town (Las Vegas), that he is

6. Leavitt was permitted, over objection, to testify that Mahban

had stated he had been approached by a member of the assessor’s

office and asked for a sum of money “for the purpose of doctoring

some documents.” The court characterized this as “admissible hear-

say.” (Rec. Vol. 1, p. 184) Since it is hearsay, it can not constitute

evidence of an offense. Further, the phrase “doctoring some docu-

ments” has no meaning and could not evidence an offense even if

admissible.

7. Petitioner has not overlooked the fact that the tapes purport-

edly made during the conversations of November 18th and 21st were

played to the jury and admitted into evidence. The tapes were

demonstrated to be totally unreliable, a situation aggravated by the

improper handling of the tapes which accorded them undue emphasis

and stature as evidence which they did not possess, which is dis-

cussed in detail, infra. However, as reflected by the unadmitted

transcripts of the tapes, embodying the prosecution’s version of what

was said, it is clear that the tapes, even if properly considered, add

nothing to the testimony of Mahban (who was allowed to interrupt

the tapes and “explain” the discussion, at will).

an importer of Oriental and Persian rugs, tapestries, and

other kinds of gift items, that he has several stores in-

cluding Grand Persian in the MGM Hotel, Grand Carpet

at the MGM Hotel, House of Oriental Rugs, Las Vegas

Blvd. South, Carpet Capital, Las Vegas Blvd. South,

Tehran Gallery on Regal Street, and Nevada Carpet

Company, Ltd., on Maryland Parkway.* He said he re-

ceived a call on the 17th from a friend, who said that Mr.

Fleener wanted to see Mahban regarding his inventory

tax—“an I.R.S. agent”. (Rec. Vol. 1, p. 55-56) Later,

Mr. Fleener visited Mahban at the MGM Hotel. Accord-

ing to Mahban, Fleener wanted to go through his “in-

ventory tax papers” Mahban said Fleener told him the

I.R.S. was investigating him, but if Mahban cooperated,

Fleener would “fix my papers to be correct for I.R.S.””

When asked to explain what was meant by “fix” the

papers, Mahban responded “my inventory shows to I.R.S.

differently than county assessor’s.” (Rec. Vol. 1, p. 58)

Mahban said Fleener “said if I help him, he’s helping me.

And only one way I understood, to pay him some money,

or something.” (Rec. Vol. 1, p. 59) Fleener mentioned

“cash and rugs”, “but not any amount or anything at ~

all,” according to Mahban. (Rec. Vol. 1, p. 59) Fleener

had with him tax declaration papers which “he told me

I send this paper in to him and it’s not correct,” (Rec.

Vol. 1, p. 61) meaning that Fleener did not believe the

inventory shown on the paper to be correct. (Rec. Vol.

1, p. 61) The conversation on the 17th was very short,

because Mahban had another appointment, and wanted

8. Further discussion of Mahban’s business activities is contained

in the discussion relating to the failure to prove involvement of

interstate commerce.

9. It is to be remembered that all testimony relating to the I.R.S.

is wholly extraneous to the indictment.

to go to his attorney to “see what was going on.” (Rec.

Vol. 1, p. 58). He then went to see his attorney. (Rec.

Vol. 1, p. 60) He related to the attorney that Mr.

Fleener told him something was wrong with his tax

paper and that Fleener wanted him (Mahban) to help

him (Fleener). The attorney asked what Mahban under-

stood by “help” and Mahban said “I think he wanted

some cash and rugs.” The attorney suggested a tape re-

corder (Rec. Vol. 1, p. 62), which was obtained. (Rec.

Vol. 1, p. 63-64). ;

The tape recorder was used the following day (the

18th), but only recorded about one-half of an. hour-long

conversation. (Rec. Vol. 1, p. 65) Mahban related that

on the 18th, Fleener brought up the problem with the

I.R.S., and then recalled that on the 17th, as well as on

the 18th, Fleener purportedly indicated that the Govern-

ment knew that Mahban was involved in “smoking or

selling narcotics or dope” and that was why, on the 17th,

Mahban “was scared to go to attorney right away be-

cause he indicate the Government know I am involved

with something.” (Rec. Vol. 1, p. 66)

Mahban then related that on the 18th this conversation .

occurred:

If I pay him a thousand dollars and some wall to

wall carpet, install it for his boss’s home, like he

fix my inventory tax return, and he make it so like

I.R.S. should not come after me again.”° |

10. This is as close as Mahban comes to suggesting wrongdoing.

But it is clear that “fix my inventory tax return” can not be gratui-

tously construed to mean improper lowering or raising the tax assess-

ment. The very context in which the statement was made suggests.

the contrary, i.e., a reconciliation of conflicting inventories reported

by Mahban to different taxing authorities. This was a valuable, and

entirely proper, service to Mahban.

Mahban paid Mr. Fleener $200 on the 18th. (Rec. Vol.

1, p. 67).

After this conversation, Mahban was advised to contact

the F.B.I., which he did. (Rec. Vol. 1, p. 68-69) He

told the F.B.I. Fleener was accusing him of “tax fraud.”

(Rec. Vol. 1, p. 70). The F.B.I. outfitted Mahban with

a tape recorder, and Mahban arranged to meet Mr.

Fleener at 2:00 o’clock p.m. on the 21st. (Rec. Vol. 1,

p. 70) Mr. Fleener showed him some papers “like he

brought my inventory tax paper, and how he did fix it."

And I should pay him the rest of the money. I paid him

$300 in hundred dollar bills.” Mr. Fleener also “showed

me a piece of paper like his boss had been to my shop

and chose the carpet he wanted.” (Rec. Vol. 1, p. 71).

Mr. Fleener. left Mahban a copy of the papers he

prepared, and a small piece of paper bearing the name

of Ronnow identified as the person to whom carpet

should be delivered. (Rec. Vol. 1, p. 73) Mahban stated

Fleener did not offer to pay for the carpet, “I have to pay

him for the favor he make for me.” (Rec. Vol. 1, p. 73).

The Government played the two tape recordings and

periodically interrupted to ask Mahban questions. There

is little of significance in Mahban’s explanation of the

tapes (in fact, the result is more confusion than clarifica-

tion). At one point during the playing of the first tape,

Mahban said that he was “making a question like what

Mr. Fleener give to I.R.S. is they accepting his report,

you see, he is supposed to make a report to I.R.S.”

(Rec. Vol. 1, p. 78) At another point, Mahban said

11. The record is devoid of proof that the documents prepared

by Mr. Fleener reflected improper inventory figures, or even lowered

Mahban’s taxes. In fact, the evidence is to the contrary, i.e., the

inventories were increased with the effect of raising the taxes.

that he was asking Fleener what he wanted “for all this

favor he make for me. And he said—I believe we came

to the carpet, he wants a hundred yards of carpet, I

don’t know.” (Rec. Vol. 1, p. 79) At another point,

Mahban was questioned about a reference to “Mr. Rip-

per” and replied “Mr. Fleener told me, like the money

has to go to a Mr. Ripper, one of the I.R.S. agents.”

(Rec. Vol. 1, p. 79) References to the first tape were

concluded by Mr. Mahban explaining that a portion of

the tape said: “We ask with, I ask him how much. He

said ‘one’. I says ‘one thousand’? He says yes, five hun-

dred for him, five hundred for I.R.S. is a thousand.”

(Rec. Vol. 1, p. 81). There was no testimony as to the

purpose or nature of the payment. ;

In the explanation of the second tape, Mahban stated:

“T believe I had to pay $2,800 taxes and I was asking Mr.

Fleener what he saved me, and the money he wants from

me, because if I pay $1,400, if my tax is $2,800, if he

reduce it to $1,400, if I pay him $1,400 pius paying

him a thousand dollars plus I pay him $700, you go over

what I have to pay the Government.” Mahban at this

point was asked the meaning of a reference to the 1.R.S.,

and replied “Because he has to report it to I.R.S. all

the time.” (Rec. Vol. 1, p. 87) When asked why this was

a concern to him, Mahban stated, “I don’t know, he was

telling me about it, you know, I ask him what he is

reporting to I.R.S.” (Rec. Vol. 1, p. 88)** Later during

the second tape, Mahban said, “That of making con-

versation, like, okay, what is my insurance if I pay the

12. It was at this point in the proceedings that the court made

its ruling concerning the admissibility of the transcripts, and an-

nounced that ruling to the jury, during which he expressed further

reservations both about the transcripts and the tapes.

money he shouldn’t come back to me six months after

to get more money from me. And he says no, he’s not

doing that, and the thousand dollars is what I have to

pay, he should fix my paper, plus the carpet.” (Rec. Vol.

1, p. 91) On the same subject, Mahban stated, “I was

telling him if I paid the money what was my guarantee

like I.R.S. not coming back to me and charging me with

something, or getting more money from me. We was

talking about I.R.S.” When asked Fleener’s response,

Mahban stated: “I believe—I couldn’t hear the tape

myself, like he said no, they are not coming to me, he

make sure he’s not coming back to me.” (Rec. Vol. 1,

p. 92).

Mahban also said, “I believe we are discussing if I

did not pay him and I.R.S., charge me with—what could

they charge me with, and he told me with fraud.” (Rec.

Vol. 1, p. 95) In the concluding parts in the tape,

Mahban stated that Fleener gave me “the piece of paper”

and asked what was “happening to the other five hundred

dollars.” (Rec. Vol. 1, p. 95) Fleener also gave Mahban

a tax form and “I ask him what shall I do with this

paper. He said I should keep it just from, up to one

declaration for *77 and the rest is from, up till 1978.

June 1978.” (Rec. Vol. 1, p. 96).

Following the conclusion of the tapes, Mahban stated

that he was planning to open a new business, and dis-

cussed it with Fleener, and that Fleener gave him informa-

tion about how to keep inventory—‘“like he was men-

tioning in the warehouse. As we know, in Nevada, if

you keep it in the warehouse, it’s not taxable, okay?

And he told me in the future, because he did not know

himself in what stage of business we are in. And he is

going through what tax we have to pay for this business.”

Mahban further stated: “I did not understand, like Mr.

Fleener asked me in the meeting how much merchandise

we want to carry. I told him a million. And he says it’s

a hundred seventy-five thousand tax, inventory tax. I be-

lieve I corrected him, it’s only seventeen thousand five

hundred.” Mahban stated that if he had had to pay a

$175,000 tax in advance he couldn’t open the business.

When asked what he thought would happen if he didn’t

agree to have Fleener help him, Mahban stated “we have

to take full taxes” but that he didn’t know what those

would be because he did not have the inventory. (Rec.

Vol. 1, p. 113).

Mahban testified Fleener said that he was going to

help him next year and that meant “fixing my tax”, but he

(Mahban) did not know what he would have to do be-

cause “we did not know what’s going on next year, no.”

(Rec. Vol. 1, p. 116).

The Government’s concluding question, on direct

examination, asked Mr. Mahban what he understood

that Fleener was going to do for him regarding the

Internal Revenue Service. Mahban’s answer does nothing

to eliminate the confusion arising from his previous

answers:

Well, he told me about the agent, and I already got

a call from Internal—from the tax people, and I was

under auditing about two years, they were going

through my papers anyway. And when Mr. Fleener

told me, I did not know what was going on, I have

from one side some other people calling me from

this side telling me about the taxes, and I was con-

fused this time about the taxes. I thought, naturally

he knew these people, because he know exactly what

I declared last year for 1976, and he know my tax

record. | did not know how he got my tax record,

what, how do you find out about my tax return

papers? But he knew it. So I thought he was work-

ing with them.

On cross-examination, Mahban stated that he did not

know what the county assessor has to do with federal

taxes, that he has filed personal property declarations with

the county assessor every year for six years, and that

bookkeepers were employed for this purpose, that he had

many times discussed with his bookkeeper what was

necessary for a personal property declaration, and he

therefore fully understood Mr. Fleener’s mission when

Mr. Fleener started to talk to tim about his personal

property declarations. (Rec. Vol. 1, p. 118-121) He

talked to Mr. Jenkins, his bookkeeper, and learned that

Mr. Fleener had visited the bookkeeper (Rec. Vol. 1,

p. 125-126); Mahban made inquiry of Jenkins whether

the personal property declaration that had been filed was

correct. Jenkins told Mahban that the declaration was

made. When Mahban told Jenkins there was some prob-

lem with the tax papers, Jenkins stated that Mahban

should cooperate with Mr. Fleener. (Rec. Vol. 1, p. 128)

It was also developed during cross-examination that there

were reasons to question the inventory figures, because .

Mahban had reported both a fire loss and theft loss

affecting inventory. (Rec. Vol. 1, p. 130-131) Mr.

Mahban admitted that he had told Fred Sadri that Mr.

Fleener was a nice man and that he could have told

Mr. Sadri that Fleener was going to help him (Mahban)

organize his clothing business. (Rec. Vol. 1, p. 144-145)

Mahban further admitted that Fleener “gave him advice”

with regard to Mahban’s proposed business in which there

would be a million dollar investment. (Rec. Vol. 1, p.

147)**

Of considerable significance was testimony elicited

during cross concerning personal property tax declara-

tions filed by Mahban for the fiscal year July 1, 1977

to June 30, 1978, identified as Defense Exhibit A. Mah-

ban stated that his manager prepared them, that he

signed them, and that they were filed at his instance.

These were compared to Govt’s Ex. 10, which consisted

of the documents that Mahban testified Mr. Fleener gave

him on the 21st day of November, 1977. These are the

only documents relating to Mahban with which Mr.

Fleener is shown to have had any connection. Mahban

stated that the records comprising Govt’s Ex. 10 reflected

compilation of his inventory, in the stores indicated, pre-

pared by Fleener, and that the inventory figures repre-

sented a combination of information secured by Mr.

Fleener from Mr. Jenkins, and “physical inventory he

has been and seen.” (Rec. Vol. 1, p. 170) Not only does

this testimony establish the authenticity of inventory

figures included in the property tax declarations pur-

portedly prepared by Fleener (and thereby conclusively

rebuts the Government’s basic theory of threatened or

actual fraudulent alteration of the tax base), but the

documents indicate that Fleener actually raised the in-

ventory figures, thereby increasing the tax.

The foregoing does not purport to be a complete

resumé, but every effort has been made to cite all testi-

mony from which an inference of wrongdoing could be

13. The importance of this testimony is that it serves as cor-

roboration of Mr. Fleener’s testimony to the effect that he was hired

as a consultant by Mr. Mahban and rendered him valuable advice

concerning tax matters, which was entirely legitimate and proper, and

for which he was paid.

drawn, in proper context. It is clear that the Government

has totally failed to support the charges against Mr.

Fleener.

In determining whether there is evidence sufficient to ©

sustain a conviction, the appropriate test, as a general

proposition, is whether reasonable minds could find evi-

dence that excludes every reasonable hypothesis but that

of guilt, and in considering that question, the Court of

Appeals must review the evidence taking into account the

reasonable inferences which may be drawn from it in the

light most favorable to the Government. Thomas v.

United States, 369 F.2d 372 (9th Cir. 1966).

Testing the evidence against the indictment, the Gov-

ernment proved (1) that Mr. Fleener was a Clark

County, Nevada deputy tax assessor and, to the extent

that he had anything to do with the personal property

taxes of Mahban, acted “under the color of official right”;

and that (2) Mr. Fleener did obtain approximately $500

from Mahban and “attempted” to obtain an additional

$500 and certain carpeting. The proof fails, however,

when it comes to the gist of the offense alleged in the

indictment. There is no evidence that the $500 paid, or

the $500 and carpeting promised, was “to lower the

property tax assessment of Djamshid Mahban.” There

were references to “fixing” the inventory tax return. There

is a reference to money to be saved by Mahban. There

are also references which, in the manner of presentation

by the Government, leave a vague impression that some-

thing improper might have been discussed or suggested.

The record is devoid, however, of evidence of actual im-

propriety. There is no proof of any specific wrong that

purportedly was to be committed by Mr. Fleener. There

is no evidence that Mr. Fleener either offered to, or did

in fact, improperly lower the property tax assessment of

Mahban. The only record evidence is to the contrary,

ie., to the effect that Fleener prepared inventory assess-

ments based upon the information obtained by personal

inspection and from Mahban’s bookkeeper, Jenkins, the

effect of which was to raise Mahban’s taxes. There like-

wise is no evidence that Fleener in any way indicated

that if he was not paid, Mahban’s personal property tax

assessment would be “increased and manipulated.”

The only definite conclusions that can be drawn are

that there were questions about Mahban’s inventory

declarations, and those declarations were in conflict with

inventories shown on Mahban’s income tax returns. Mr.

Fleener offered to, and apparently did, effectuate a recon-

ciliation and remedied the deficiencies. To accomplisk

this, he used inventory information gained from Mahban’s

bookkeeper, and actual inspection. The accuracy of that

information has not been attacked. It is clear that reason-

able minds could not find evidence that excludes every

reasonable hypothesis but that of guilt. Though the evi-

dence may support an inference of impropriety, the in-

ference cannot give definition to the impropriety, for this

would amount to creation of evidence by inference or

“stacking an inference on an inference.” There is no

evidence that Mr. Fleener offered to do any specific

illegal, improper or fraudulent act, and no evidence from

which any inference of specific improper, illegal, or

fraudulent action can be drawn. In this regard, attempts

to draw inferences should be closely scrutinized, for the

Government, having wired Mr. Mahban for sound, and

instructed him in the use of bait money, and having

monitored one of the conversations with Mr. Fleener,

should not now be allowed to “infer” Mr. Fleener into

prison.

2. The Evidence Is Insufficient To Show That Com-

merce Has Been Obstructed, Delayed Or Affected.

Mahban operated the Grand Persian Store in the

MGM Hotel, the Grand Carpet Store at the MGM

Hotel, the House of Oriental Rugs, Las Vegas Blvd.,

Carpet Capital, Las Vegas Blvd. South, Tehran Gallery

on Regal Street, and Nevada Carpet Company, Ltd. on

Maryland Parkway. (Rec. Vol. 1, p. 52-53) “Almost”

all his merchandise is imported from overseas or out

of the state, and sold in the ordinary course of business

to local residents, tourists or other merchants from other

states. (Rec. Vol. 1, p. 53-54) The services of a shipping

company are used to pack, insure and mail goods sold

to out-of-state residents. (Rec. Vol. 1, p. 54) Mahban

also started a new business called “Vogue Fashions”

which was going to carry a million dollar’s starting in-

ventory. (Rec. Vol. 1, p. 85) Mr. Fleener informed

Mr. Mahban that if his inventory was kept in a ware-

house, and sold outside the state, it was not taxable

(for “inventory” tax purposes). (Rec. Vol. 1, p. 86)

Mahban made reference to “the machinery in my fac-

tory”. Presumably this referred to machinery in a garment

factory either in operation or preparing to go into opera-

tion, to make dresses for Vogue Fashions, but the refer-

ence is not clear, and it could refer to an entirely dif-

ferent factory. (Rec. Vol. 1, p. 92)

Mahban at first stated that the carpet to be furnished

to Mr. Ronnow would have to be obtained from out of

state, but, on cross-examination, stated that he did

not know whether the carpet selected was already in a

local store or warehouse.

Mahban testified that Vogue Fashions was going to

locally manufacture and also import women’s clothing

from different countries. (Rec. Vol. 1, p. 110-111) The

$500 paid to Fleener was taken from money at his

Office at the MGM Hotel, but he did not identify the

source of the funds other than from “his business.”

Mahban testified that no interstate shipments were

delayed by reason of his conversation with Mr. Fleener.

This, essentially, constitutes the proof relating to

interstate commerce.

The Hobbs Act requires a showing that commerce, or

the movement of an article or commodity in commerce,

is in some way or degree obstructed, delayed, or affected.

Title 15, U.S.C. Sec. 1951(a). United States v. Hyde,

448 F.2d 815 (Sth Cir. 1971), cert. denied, 404 U.S.

1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972), reaffirmed

that “all of the Hobbs Act cases agree that the court

should determine whether the facts alleged meet the

statutory requirement of affecting interstate commerce.”

448 F.2d at 839. It has been held that in order to

satisfy the statute, the effect on interstate commerce need

only to be a minimal degree. United States v. Schackel-

ford, 494 F.2d 67 (9th Cir. 1974); United States v. Ad-

donizio, 451 F.2d 49 (3d Cir.), cert. denied, 405 US.

936, (1972). In United States v. Hyde, it was observed

that a different standard is employed under the Hobbs

Act than under the Sherman Act, although Congress, in

enacting both acts, exercised its full power under the

commerce clause, Art. 1, Sec. 8, Cl. 3, Federal Const.

The outer limits of liberality accorded the proof of com-

merce involvement under the Hobbs Act are defined in

language held to be a proper charge in United States v.

Provenzano, 334 F.2d 678, 692-693 (3d Cir. 1964),

quoted in United States v. Addonizio, supra:

“Where the resources of a business are depleted or

diminished in any manner or degree by payments

of money obtained by extortion the capacity to

efficiently conduct such business is to the extent

of the drain on its resources likely to be im-

paired. . . . It is merely required by the law where

extortion is shown that it did in some way or degree

obstruct, delay, or affect commerce. . . . It is the

depletion of the resources of a business by extortion

which permits as a reasonable inference if the

extortion is established that its operations are de-

layed, obstructed, and affected.”

In the present case, the alleged extortion involves

local property taxation. The incidence of the tax which

is the subject of the indictment must necessarily be upon

property at rest, within the state of Nevada, held for

local sale. If the property were in transit, or had not

completed its interstate shipment, or was committed to

future interstate shipment, it would be beyond the power

of a local unit of state government to impose a tax

upon it. See Independent Warehouses, Inc. v. Scheele,

67 S.Ct. 1062 (1947), discussing the power of taxation

under the commerce clause.

This proposition is expressly recognized by a principle

of Nevada taxation law which prohibits assessment of

the tax, in question upon property held in a warehouse

for intebstate sale and distribution. Mahban evidenced

thorough familiarity with this principle.

Accordingly, the extortion which the indictment alleges

is a purely local, or intrastate, activity. It necessarily

had reference to property at rest within the State of

Nevada, after completion of any interstate shipment, held

for local sale, and prior to any interstate shipment that

might result after completion of a local sale. Obviously,

therefore, the alleged extortion did not directly involve

the flow of interstate commerce, nor could its incidence

be said to directly relate to the movement of any com-

modity in interstate commerce.

Accordingly, therefore, if jurisdiction is to be sustained,

it must necessarily be on the basis of the principle

recognized in Addonizio, supra, that the depletion or

diminution of the resources of an interstate business

permits as a reasonable inference, if the extortion is

established, that interstate operations are delayed, ob-

structed, or affected. The crucial element is proof of

depletion or diminution of resources which the business

would have used in interstate commerce.’* The Govern-

ment wholly failed to sustain this burden.

The scope of the actual extortion alleged in the indict-

ment is $500, which, according to Mahban, was taken

from funds on hand at his office in the MGM Hotel and

originated from “his business.” However, he did not

define which of his businesses produced the funds,

whether the funds were produced by sales of merchan-

dise originally purchased in Nevada, or elsewhere, whe-

14. Although every case which has upheld interstate commerce

jurisdiction under the Hobbs Act has found some degree of actual

obstruction or depletion of assets used in interstate commerce, no

case has placed any minimum threshold requirement or standard on

the amount of depletion or diminution of resources necessary to

establish effect on commerce. Though it may appear ridiculous, under

the “de minimus” test, the depletion of as little as one dollar, or

one penny, in resources used in interstate commerce might be suffi-

cient. Fortunately, it is not necessary to resolve this point in the

present case.

ther the funds constituted resources of any particular

business, or whether such had previously been with-

drawn in the form of profits, dividends, salary, or

“petty cash”, etc.

The cases are uniform that some actual effect upon

commerce must be shown. Here the Government totally

failed to prove that the extortion or attempted extortion

alleged in the indictment depleted or diminished re-

sources used, or which would have been used, in inter-

state commerce, or in any way or in any degree affected,

obstructed, or delayed Mahban, or any of his businesses,

in the conduct of any interstate activities. The only evi-

dence in the record is to the contrary. Mahban testified

to the effect that his conversations with Fleener in no

way delayed or obstructed any interstate shipment.

It is required that one of the “natural effects” of an

extortion under the Hobbs Act be an obstruction of

interstate commerce. Nick v. United States, 122 F.2d

660 (8th Cir.), cert. denied, 314 U.S. 687 (1941). It

certainly cannot be said that the “natural effect” of an

extortion is to drain resources used in interstate com-

merce, where the “natural effect” of the extortion alleged

in this indictment is a net savings to the business.

Of course, the Government will likely respond that the

“prevent economic loss” portion of the indictment refers

to a threat to manipulate tax assessments that caused Mr.

Mahban to pay more than legitimately due. However,

there is not even a suggestion in the record that Mr.

Mahban would ever be required, under any set of cir-

cumstances, to pay more than the amount legitimately

owed or, as Mahban described it, the “full taxes” due.

Therefore, the term “prevent economic loss” viewed in

light of the record, could only refer to a savings to

Mahban.

In United States v. Starks, 515 F.2d 112 (3rd Cir.

1975), proof of interstate commerce was challenged.

“There was evidence of a decline of resales during

the period of the alleged conspiracy, but no evidence

of declines of purchases. We conclude, however, that

although this part of the Government’s case was

extremely thin, it met the federal jurisdiction test

for a Hobbs Act violation.”

In the present case, the evidence was not thin, it was non-

existent. There was no evidence of decline of either sales

or purchases, and no evidence of any lessening in the

ability to continue interstate activities.

The case of United States v. Merolla, 523 F.2d 51

(2d Cir. 1975), establishes that something more than

lip service must be accorded the interstate commerce

element. There a contractor, constructing a building to

be used as an automobile dealership, complained of

extortion by the owner. The contractor, Goberman,

proved that he purchased materials from out of state

which were delivered to the job site to be used in the

building process, and that new automobiles which the

owner, McNamara, sold at the completed showroom were

assembled in other states and transported into New York.

The court observed that this was Goberman’s first and

only construction venture, and that “all necessary ma-

terial for the project had already been delivered to the

site by June 5—the date of appellant’s first extorted

property from Goberman. Thus, there is no reason to

believe that Goberman would have purchased goods in

interstate commerce for the showroom project or any

other construction project had his buying power not been

diminished.” The court also observed that any effect on

the construction or on the arrival of the new cars oper-

ated on McNamara, the defendant, who was in position

to fully determine whether to engage in interstate com-

merce by selling cars or not. “We do not see how he

could be subject to prosecution under this statute for

restraining or affecting his own commerce where he has

the right to lawfully choose to cease construction or

abandon the business of selling automobiles.” The court

concluded that the victim’s purchase of interstate goods

must be of a continuing nature or the relationship be-

tween the extortion and any interstate commerce becomes

merely conjectural.

Here any relationship between an extortion in conjunc-

tion with local property taxation, and any on-going

“interstate” business of Mahban is purely conjectural.

When the lack of proof of lessening of buying power, or

depletion of resources, is considered, it conclusively ap-

pears that the relationship is non-existent.

3. The Trial Court Abused Its Discretion In Permit-

ting, Without Proper Foundation Or Predicate,

Incoherent, Inaudible And Partial Tapes To Be

Played, Interpreted And Used Throughout The

Entire Trial, Such Tapes, As A Whole, Being So

Untrustworthy, As To Deny Appellant Due Process

Of Law.

The tape recordings heretofore mentioned permeated

the entire trial. The use by the prosecution of the

partial, inaudible and untrustworthy tape recordings

wrongfully resulted in conviction. In his opening state-

ment the prosecutor told the jury:

In this trial you are going to have a unique ex-

perience; you are going to have the opportunity to

actually hear tape recorded conversations which

occurred on two different dates between the de-

fendant . . . and the victim. . . . I urge you to

listen very, very carefully to these conversations. I

urge you to pick each word out of there as care-

fully as you can. . . . But listen to the approach

of Richard Franklin Fleener as he attempts to, as

the government will show you, extort this money

from this merchant.

(Rec. Vol. 1, p. 9, 10);

We’re going to hear a conversation for approxi-

mately thirty minutes, which occurred between Mr.

Mahban and Mr. Fleener. . . . He tells them he

wants a thousand dollars. Again my words. You

will hear the specific words on the tape. .. .

You will hear the specific words on the tape. Ad-

ditionally, listen very carefully to this. The tape

runs out after approximately thirty minutes, for

reasons you'll hear from Mr. Mahban. You are

going to hear . . . he obtained from Mr. Mahban

$200 cash, acting under color of his office, under

color of official right, to assist, that is, the money,

you will hear, was obtained to assist Mr. Mahban

in certain ways, .. .

(Rec. Vol. 1, p. 11);

. that under the strict control of the Federal

Bureau of Investigation, that he (Mahban) will-

fully and consensually wore a transmitting device.

. . . You are going to have an opportunity to

actually hear a rather lengthy conversation, I think

it’s approximately fifty minutes that occurred be-

tween Mr. Fleener and Mr. Mahban, generally the

same subjects again, but I urge you, please listen

very closely to that tape again. . . . You are

going to hear that Mr. Fleener assures Mr. Mah-

ban the minute that he hears he is interested in a

new business venture, that he, Mr. Fleener, is

going to help him in this business venture, and that

he dare not act without his assistance, at least that

is the clear implication . . .

(Rec. Vol. 1, p. 12);

‘You are going to have the opportunity, in addition

to the tape recording and the conversations on them,

which I again urge you to listen to carefully, .. .

(Rec. Vol. 1, p. 14). The opening statement of the

government consisted of ten pages of the record (Rec.

Vol. 1, p. 4-14). It is readily discernible how vital

the tape recordings were to the prosecution’s case. The

government played unidentified portions of the tapes

to the jury thirty-nine separate times during the trial

which commenced on March 13, 1978, at 10:40 a.m.

and ended at 2:30 p.m. on March 15, 1978. (Rec. Vol.

1, p. 3 and Vol. 2, p. 444) Concluding argument by the

prosecution emphasized, and replayed, portions of the

tapes. In short the government's case was the tapes, yet

the record shows that the tapes were so unreliable that

they should not even have been mentioned.

The first witness called by the government was Wil-

liam A. Scobie, a special agent with the-FBI. He testified

that his particular responsibility was to place on Mahban

a tape recorder, transmitter, and microphone owned by

the FBI “so that his conversation and any other person

who talked to him would be recorded and would be

also received by the transmitter and transmitted to other

receivers that would be in the same frequency.” He

testified that he could hear what was being said on his

receiver between appellant and Mahban.** (Rec. Vol.

1, p. 25, 26) but he gave no testimony as to what he

heard.

The next witness, Thomas R. Parker, a special agent

for the FBI, said that he first met Mahban on November

21, 1977. At that time Mahban gave Parker the tape

recording of the conversation which Mahban had with

appellant on November 18 (Government’s Trial Ex-

hibit No. 1). Parker put his initials on this cas-

sette tape and turned it over to special agent T’Kindt.

Parker also removed a cassette tape from Mahban after

the arrest of appellant on November 21, 1977. (Gov-

ernment’s Exhibit No. 5). Government’s Exhibit No. 1

and No. 5 were given by Parker to T’Kindt. (Rec. Vol.

1, p. 28-38)

Special agent T’Kindt testified that he was given gov-

ernment’s Exhibit No. 1, the small cassette tape, and

that he placed it on a recording device, and made two

copies of it. The original tape was thereafter locked in

an exhibit room. He identified government’s Exhibit No. 3

as a written transcript that he had made from the tape

recording. He also made a written transcript of Exhibit

No. 5 identified as government’s Exhibit No. 7. He also

made two duplicate tapes, which were on larger cassette

recordings “because they are easier to work with instead

of trying to use a small tape cassette and this small

recording.” The two duplicate tapes were identified as

Exhibits No. 8-A and No. 8-B. Exhibit No. 8-A was

a duplicate copy of government’s Exhibit No. 1, and

15. The fact that Scobie did not offer testimony of the content

of the conversation indicates that it was not of sufficient clarity for

him tc risk sworn affirmation of what was said. This stands as

further condemnation of the quality of the tapes.

Exhibit No. 8-B was a duplicate copy of government’s

Exhibit No. 5.

As to the difficulty of transcribing from the duplicate

tapes (not the original, or alleged original tapes), witness

T’Kindt testified as follows:

Q: Now with respect to each of the two transcripts

you have before you, would you describe the steps

you went through in an effort to prepare these two

transcripts?

A: Yes, sir. I placed one of these recording copies

on a cassette player and listened to it with a set of

earphones. And I went over and over the tapes

until I got the best copy that I could get and went

over the tapes approximately six times.

Q: Did you go over the tapes with Mr. Mahban?

A: Yes, sir, I did.

Q: And did that assist you in your preparation

of the two transcripts that you are telling us about?

A: Yes. .

With respect to the smaller tape, government’s Exhibit

No. 1, he stated as follows:

Q: Do you know how long, or approximately how

long the transcription is on that tape?

A: I could only guess and say its five minutes.

We don’t want you to guess.

Well, I would say five minutes.

Do you know?

I don’t know specifically.

Again, sir, how many times did you go over

the transcripts in an effort to correct them and make

them accurate?

A: A minimum number of six times a beginning

to end.

(Rec. Vol. 1, p. 42, 43);

OFOFO

T’Kindt further stated that in preparing the transcripts

he “played the tape on a player and listened to what

you heard and then try to write it down.” He made

rough pencil copies, then had them typed and again

listened to the tapes and made changes on the tapes and

this continued “until I finally got a final copy.” The

witness then stated (at p. 46, 47 of Vol. 1) “Well, Mr.

Mahban, after this was done, we sat down, and there

were some parts that were unclear to me and I had him

listen to it, of his own voice, and to tell me if what I

thought that I had written down was correct in his

opinion. He said it was.” This witness’s final appraisal of

the transcripts was that they were “not perfect” and where

unintelligible the transcripts were so marked in a number

of places. (Rec. Vol. 1, p. 47, 48)

Thus, the record not only shows the unreliability of

the tapes, but also shows lack of predicate for the ad-

mission of the recordings (assuming arguendo that the

sound was audible and trustworthy). The only govern-

ment witnesses testifying to the predicate were Scobie,

Parker and T’Kindt. Mahban only identified the cassette

(Government Exhibit No. 1) which he had in his pos-

session for a couple of days prior to turning it over to

the FBI.

The burden is on the government to produce clear

and convincing evidence of authenticity and accuracy as

a foundation for the admission of tape recordings. As

stated in United States v. Starks, 515 F.2d 112, 121

(3d Cir. 1975) the weight of authority commands that

before a sound recording is admitted into evidence, a

foundation must be established by showing the following

facts: (1) that the recording device was capable of taking

the conversation offered in evidence, (2) that the

operator of the device was competent to operate it, (3)

that the recording is: authentic and correct, (4) that

changes, deletions or additions have not been made in

the recording, (5) that the recording has been preserved

in a manner that is shown to the court, (6) that the

speakers are identified, (7) that the conversation was

made voluntarily and in good faith, without any kind of

inducement. The trial court does not have unbridled

discretion to disregard the problems inherent in the use

of such evidence. The government has failed to meet its

burden to establish a predicate and foundation for the

admission of the tape recording. It is apparent from the

record that the device was not capable of accurately

recording the conversation and that the operator was not

competent to operate it. Great portions of the tape re-

cordings were inaudible and untrustworthy and the speak-

ers were not identified.

“The direct examination of Mahban (Rec. Vol. 1, p.

52-117) reveals that the tapes constituted the basis of

his testimony. The unreliability of the tapes tainted

all of his testimony, which was, for the most part, a vain

attempt to explain, clarify, identify, interpret and trans-

late the unintelligible sounds on the tapes.

The. manner of the use of the tapes, and the fact

that the record is devoid of any indication of the portions

of the tapes that were played, is illustrated by the follow-

ing excerpt from the record:

MR. ANDERSON: Your Honor, I would use Mr.

Smith of the FBI to run the tape recorder, and we

propose to play exhibit No. 8-A, identified as the

November 18, 1977 conversation. Mr. Smith, would

you commence the playing of the—(The tape was

played.)

MR. ANDERSON: Now stop the tape please.

Q: At this point, are you still talking to Mr.

Fleener?

A: No. I was in the shop, I told Mr. Fleener wait

outside, I had some customer... .

THE COURT: What page are you on in the tran-

script at this point? [The Court referred to the

transcript, even though it had been excluded from

evidence. ]

MR. ANDERSON: I believe we are at page five,

your Honor. (The tape was played.)

(Rec. Vol. 1, p. 74-77).

There are many such examples in the record. The

highly prejudicial effect of the use of the tapes, their total

unreliability, and the fact that the court realized that

the tape recordings were not trustworthy, is shown by

the following quotations from the record:

Q: Where are you now, sir, where this conversation

is being recorded, where were you?

A: We were at the coffee shop at the MGM Hotel.

THE COURT: Counsel come to the bench with

reporter. (The following proceedings were held at

the bench: )

THE COURT: I’ve been trying my best to follow

this recording, this tape with the transcript, both the

first one and so far with this one. With the first one

I had extreme difficulty trying to pick places where

the transcript picked up audible conversation, and

it was because there was a lot of music in the back-

ground, and the accent of this witness is of no help

to us either. And it’s starting out the same thing

with this transcript, and I have grave doubt at this

moment whether I’m going to permit this jury to

follow along with the written transcript, because

there’s too much danger of the transcript supplying

something that the jurors may not be able to hear

for themselves. Therefore, as against the possibility

that I may later refuse to let the transcript be used

by the jurors, I’m going to permit you, Mr. Ander-

son, to make such use as you desire to, going through

this transcript, this tape, of interrupting as you have

in the past and having the witness tell us what it

was that happened at that time. That seems to be

the only manner of interpretation of the terrible

reception that we seem to be getting on the tape,

that is fair for this jury. Jt would be prejudicial to

the defendant for me to allow this tape to go to the

jury on the basis of the clarity of the tape that I’ve

heard so far. It may be that it may improve in the

future, but I wanted to let you know my feelings on

it at this point so that you may make such inter-

ruptions as you care to, with this witness, to try to

have him tell us what is happening at a certain

given point.

(Rec. Vol. 1, p. 82-84);

The following is in the same vein: (Mahban—Direct)

(Rec. Vol. 1, p. 88-91)

Q: BY MR. ANDERSON: Do you know what is

happening there?

A: No.

Q: You didn’t turn it off or anything?

A: No.

MR. ANDERSON: May we turn the tape over,

your Honor?

THE COURT: Counsel come to the bench for a

moment, please.

(The following proceedings were held at the bench: )

THE COURT: Because I have almost—as a matter

of fact, J have decided against letting the jurors see

these transcripts, . . . so that it will let them do the

best they can for getting as much as they can out

of the tape as they hear it. We may have to play the

whole two of them over again. .. . (Rec. Vol. 1,

p. 88)

(The following proceedings were held in open

court: )

THE COURT: Ladies and gentlemen of the jury,

you have heard . . . witness, went over the tapes as

much as six times and made notes from the tapes

as best he could, and eventually made a transcript.

And I have a copy of that transcript, and the lawyers

have a copy of that transcript. And it is a question

whether you should also be given a copy of' that

transcript. 1 have come to the conclusion that there

are so many distractions in the tape, . . . and with

the lack of foundation that I have, that we have as

near a perfect transcript as we can, I don’t want to

prejudice the defendant by letting you have a copy

of this transcript to follow along, because it may be

supplying you with something that you should not

have. And what I must impress upon you is that

your task is going to be to listen as closely as you

can to the tape as it is being played, and as I know

that you have been doing because I’ve been watching

you, so that you can get as much as you can of

the conversation.

This tape is attempting to record a conversation .. . ,

there are lapses in it that you just can’t get. And that

is why I have permitted Mr. Anderson, from time

to time, to stop the playing of the tape and to ask

the witness what was said at that particular juncture.

This is far from a perfect way of communicating all

that was said in these two conversations to you as

jurors. And it is important that you get as much evi-

dence as you can from a listening to the tape, be-

cause I, for legal reasons, can not send this into you

as you deliberate or let you have it now as the tape

is being played.

So, along with the help that this witness will be able —

to give us in telling us at different junctures, in it

what was said at that time on a certain subject, .. .

(The tape was played.) (Rec. Vol. 1, p. 89)

This vividly points out that the tapes were wholly un-

reliable and untrustworthy and that there was no founda-

tion laid for their admission, a fact recognized by the

Trial Court. The trial judge even stated that the play-

ing of the tapes was prejudicial to the defendant, but

allowed them to be played. Contradictorily, the court said

that the transcripts were the best that could be obtained,

but instructed the jury that they were unreliable and so

would not be made available to the jury.

At this point in the trial “the horse was out of the

barn”. The tapes had already been utilized by the govern-

ment in their opening statements and portions had been

played numerous times. The witness Mahban had already

been permitted to give his interpretation of what he thought

the tapes contained and the court and government counsel

continued to use the tapes and the written transcript in

the manner indicated by the excerpts from the record.

To compound the error and prejudice, the prosecution,

in arguing the case to the jury, repeatedly made reference

to the tapes and played parts of them, over strenuous

defense objections. What was actually played before the

jury is not reflected in this record for appellate counsel

or this Court. It is certainly conceivable that the portions

of the tapes played during argument were different from

the portions played during the examination of Mahban,

and thus injected matters outside the record.

Defendant objected to the interpretation by Mahban

as to the conversations on the tape on the ground that

it invaded the province of the jury (Rec. Vol. 1, p. 80).’°

After bc. prosecution and defense rested defendant’s

trial counsel made further objections to the admission of

the tapes and moved to strike on numerous legal and

constitutional grounds. (Rec. Vol. 2, p. 372-373).

Ordinarily the admissibility of taped conversations rests

within the sound discretion of the trial judge. Each case

is determined on its peculiar set of facts. Unired States

v. Frazier, 479 F.2d 983, 985 (2d Cir. 1973). However,

the trial court does not have unbridled discretion to dis-

regard the problems inherent in the use of tape recording

evidence during trial. See United States v. Starks, 515

F.2d 112, 121 (3d Cir. 1975) (reversed because of the

admission of tape recordings). In United States v. Knohl,

379 F.2d 427, 440 (2d Cir. 1967), cert. denied, 389 US.

973, the court stated:

... that tape recordings are susceptible to alteration

and that they often have a persuasive, sometimes a

dramatic, impact on a jury. It is therefore incumbent

on the government to produce clear and convincing

evidence of authenticity and accuracy as a founda-

16. The pertinence of this objection is illustrated at Rec. Vol. 1,

p. 92. When asked about a particular part of the tape, Mahban said

“T couldn’t hear the tape myself”. The portion of the tape was then

played over for Mahban a total of three additional times before

Mahban would venture an opinion as to the subject being discussed.

tion for the admission of such recording; and where

the Court accepts them as authentic and accurate

but the evidence is conflicting on these points, it

must caution the jury to scrutinize the evidence with

care.

The correct procedure to be followed prior to the ad-

mission of tape recordings or the use of written trans-

cripts is for an in camera inspection and playing of the

tapes and a hearing of objections thereon. This procedure

has been approved and recommended; to do otherwise

has been held to be improper by numerous circuit courts.

Gorin v. United States, 313 F.2d 641,, 651-62 (1st Cir.

1963), cert. denied, 379 U.S. 971; Todisco v. United

States, 298 F.2d 208, 211 (9th Cir. 1961), cert. denied,

368 U.S. 989; United States v. Bryant, 480 F.2d 785,

789 (2d Cir. 1973); United States v. Carson, 464 F.2d

424, 437 (2d Cir. 1972).

Definitive and specific instructions should be given in

the court’s charge to the jury as to the weight to be given

the tape recordings, and instructions admonishing the

jury to carefully scrutinize the evidence preserved on the

tapes. United States v. Carson, 464 F.2d 424, 437 (2d

Cir. 1972); United States v. John, 508 F.2d 1134, 1141

(8th Cir. 1975); United States v. Kirk, 534 F.2d 1262

(8th Cir. 1976). :

Where tape recordings are inaudible and a substantial

part thereof is unintelligible, the court should preclude

the playing of the tapes before the jury unless and until

the party offering them prepares an accurate written

transcript of the tape recordings. In United States v.

Frazier, 479 F.2d 983, 985 (2d Cir. 1973), the court

held an in camera inspection and refused the offering

party the right to use the tapes before the jury. The court

Stated at page 985:

There is an obvious danger when a recording is

substantially unintelligible that the part that can be

heard may leave a misleading impression of the en-

tire conversation. . . . Moreover, the danger of un-

reliability of a partly inaudible recording is exacer-

bated by the substantial impact it may have on the

jury."

Also, see United States v. Gerry, 515 F.2d 130 (2d Cir.

1975).

The Court of Appeals for the Ninth Circuit has an-

nounced that it expects the trial court to proceed with

abundant caution respecting the use of tape recordings.

The court announced, at least by strong implication, that

tape recordings should be so audible and intelligible that

the Court Reporter can transcribe into the record the

tapes or parts thereof that are placed in open court. In

United States v. Carlson, 423 F.2d 431, 440 (9th Cir.

1970), cert. denied, 400 U.S. 847, the court stated:

After listening to the tape, the trial court...

permitted the tape to be played once to the jury in

the courtroom. Neither the tape nor a transcript of it

was permitted in the jury room. . . . The govern-

ment concedes that the tape was only partially audi- .

ble. The Court Reporter, however, was able to

understand and transcribe for the record . . . a sub-

stantial part of it.

17. This observation is particularly applicable to the present case.

The effect is the same as though incriminating portions of a docu-

ment had been admitted out of context without admitting exculpa-

tory portions which explain the portions admitted. In this case it is

possible—in fact, probable—that the inaudible portions provide an

explanation entirely consistent with Mr. Fleener’s defense.

Portions of tape recordings, the content and context

of which are utterly unknown to appellate counsel, were

played before the jury on thirty-seven different occasions

(two additional times during argument). The Court Re-

porter was unable to understand and transcribe for the

record any part of the tapes so played and emphasized

by the prosecution. The failure of the Court Reporter

to transcribe this evidence demonstrates how inaudible,

unintelligible, and untrustworthy the tapes were. Of

course, appellant is deprived of a record on appeal in

this respect, a point covered by another portion of

this application.

If the unintelligible portions of the tape recordings are

so substantial as to render the recordings as a whole

untrustworthy, or if the parts audible are without evi-

dentiary value, or if the inaudible parts are so substantial

as to make the rest more misleading than helpful, the

tape recordings should be excluded. Monroe v. United

States, 234 F.2d 49, 55 (D.C. Cir. 1956), cert. denied,

352 U.S. 873; United States v. Bryant, 480 F.2d 785,

790 (2d Cir. 1973); Gorin v. United States, supra.

Further, even assuming some parts of the tapes are

relevant, the same should have been excluded because

the probative value of the tapes as used throughout the

trial of this case was substantially outweighed by the

danger of unfair prejudice, confusion of the issues, and

tendency to mislead the jury. See Rule 403, Federal Rules

of Evidence.

The inadequacy of predicate and foundation could not

have been rectified at the trial, nor could the tape re-

cording evidence have been corrected or cured in any

manner. Failure to make additional objections by trial

counsel does not preclude raising this matter on appeal.

United States v. Fuentes, 563 F.2d 527 (2d Cir. 1977),

Rule 52(b), F.R. Crim. P.

It is submitted that the trial court did not follow

the rules formulated in the cited cases. An in camera

audition of the tapes was not held. The Court did not

first hear the tapes out of the presence and hearing of

the jury, did not premise the use of the tapes on an ac-

curate transcript of the recordings and did not establish

a foundation and predicate for the introduction of the

tapes or the duplicates. But the trial court permitted the

witness Mahban to bolster his testimony by testifying

to “what the tapes were saying”. The Court did not give

requested cautionary instructions about the use of the

tapes to the jury, but used and commented on an un-

reliable written transcript of the tapes, and permitted the

tape recordings to permeate the entire trial. The entire

manner of handling the tapes was so highly prejudicial

that Defendant was denied a fair trial, due process of

law, and effective assistance of counsel, all guaranteed

by the Fifth, Sixth, and Fourteenth Amendments to the

Constitution of the United States.

4. The Failure Of The Trial Court To Require That

A Record Be Made Of The Portions Of The Tapes

Played In Open Court, And Three Bench Confer-

ences Denied Defendant Adequate Appellate Re-

view And Effective Assistance Of Counsel on

Appeal.

It is settled that a defendant convicted in a United

States District Court has a right of appeal, “that is, a de-

fendant has a right to have his conviction reviewed by a

Court of Appeals and need not petition that court for

an exercise of its discretion to allow him to bring the

case before the court.” Coppedge v. United States, 369

U.S. 443 (1962).

The right to appeal has been held to include the right

to assistance of counsel, and if the defendant is unable

to afford an attorney, one must be appointed to repre-

sent him. Douglas v. People of the State of California,

372 U.S. 353 (1963). Effective assistance of counsel on

appeal has been held to require the provision of complete

transcripts of the proceedings below [Entsminger v. State

of lowa, 386 U.S. 748 (1967)] so that, based on an

examination of the complete record, appellate counsel

can act in the role of “an active advocate in behalf of his

client, as opposed to that of amicus curiae.” Anders v.

State of California, 386 U.S. 743, 744 (1967).

In this case, defendant’s trial counsel withdrew after

the trial. Appellate counsel became attorneys of record

after the trial and prior to sentencing. Although the trial

was held in Las Vegas, Nevada, the formal sentencing

occurred at Los Angeles, California, on April 17, 1978.

At that time, defendant’s appellate counsel advised the

court of the filing of notification of the designation of

the record and notice of appeal. The following statements

were made:

MR. McDONALD: Of course, we are requesting

that the entire record of all proceedings, actually,

we are not designating any segment of it.

‘THE COURT: I think that very properly the entire

record ought to be before the appellate court in

this case.

Rec. Vol. 2, pp. 457-58. The written designation of

record to be included on appeal was filed on April 17,

1978, and states that the appellant “respectfully requests

the Court Reporter to prepare a transcript of all of the

evidence adduced during the trial of this action and of all

proceedings had including but not limited to hearing on

pretrial motions, jury selection, trial, and post-trial and

sentencing.” (Rec. Vol. 3, p. 1).

The record is far from complete. On thirty-seven

separate occasions during the testimony, a tape recording

machine was played in open court for various periods of

time, the length of which are not indicated in any way.

The record simply says “(The tape was played.)” The

record is silent as to what the jury may or may not have

heard, who was speaking, the length of time that the tape

played, or anthing else that transpired. Twice during the

closing arguments of the prosecution, the tape recorder

was played, and the Court Reporter again failed to make

any record as to what was said or what occurred.

In addition, on three separate occasions during the

trial, the Court Reporter’s transcript indicates that a con-

ference was held at the bench, but the record is silent

as to who attended the bench conferences or what was

said or done during the conferences.

The effect of these omissions clearly was to deny the

defendant adequate review ard effective assistance of

counsel on appeal. The Court Reporter on thirty-seven

separate occasions during the taking of the testimony,

and two separate occasions during the closing arguments,

failed to comply with the mandate of the Court Reporter’s

Act requiring all proceedings in open court to be re-

corded, but instead, became oblivious to the fact that the

prosecution was playing a tape machine for the jury to

hear. The tapes supposedly contained conversations to

which the defendant was a party. Perhaps the poor quality

of the tapes is responsible for the court reporter’s inac-

tions, but the record would have been aided by an indica-

tion of the length of time each portion of the tape lasted,

and a notation that the tapes were inaudible. The record

made available to appellate counsel does not reveal the

nature of any of the alleged conversations, the identity

of the parties speaking, the actual words alleged to have

been said, the duration of the conversations, or anything

else. Appellate counsel can not tell whether a particular

portion of a tape might have contained a statement in-

admissible for legal reasons, or whether there might have

been valid legal objections to certain portions of the tapes.

There is no way to ascertain whether the tapes were

inconsistent with Mahban’s explanations. There is no way

to tell if exculpatory portions of the tapes were excluded.

Appellate counsel are totally unable to determine if de-

fendants right were violated, or whether defendant re-

ceived adequate and effective assistance of trial counsel.

The procedure employed by the trial court and the

Court Reporter have been specifically condemned. “To

avoid danger of reversal for an inadequate record and

possible prejudice, some means should be used to identify

clearly those portions of the tapes played at trial.”

United States v. Jones, 540 F.2d 465 (10th Cir. 1976),

cert. denied, 429 U.S. 1101 (1977). Even if the tape

recordings were themselves properly admitted, which is

denied, neither appellate counsel nor this Honorable

Court will ever know what particular portions of those

tapes were played for and heard by the jury that decided

this case. This error requires reversal.

The failure to report the bench conferences com-

pounds the error. The first decision dealing with the failure

of the Court Reporter’s transcript to contain conferences

held at the bench was that of the Ninth Circuit in United

States v. Williams, 455 F.2d 361 (9th Cir. 1972). The

conviction was affirmed, but the Ninth Circuit first re-

quired the record to be supplemented with the reporter’s

transcript of the bench conferences, which then showed

clearly that nothing constituting error had transpired

during the conferences.

In United States v. McGarrity, 559 F.2d 1386 (Sth

Cir. 1977), the record on appeal contained an entry

reading “(discussion at the bench off the record.)” The

Fifth Circuit noted that it could “not endorse the failure

of the record to contain a verbatim report of all pro-

ceedings in open court,” as mandated by the Court

Reporter’s Act, but was nevertheless able to affirm the

conviction on the basis that the portion of the reporter’s

transcript immediately following the bench conference

notation clearly and unmistakeably indicated exactly what

had happened during the bench conference (i.e., that the

prosecution and defense had stipulated that the prosecu-

tion need not call a particular government witness.)

Under these circumstances, the Fifth Circuit felt there

was “no other reasonable conclusion to draw from the

record as a whole and there being nothing to indicate

that any prejudice resulted to the defendant or to the

ability of this court adequately to review the proceedings

in the trial court. . . .” 559 F.2d at 1389. It is thus

the position of the Fifth Circuit that on rare occasions,

“there may be some instances where it can readily be

determined from the balance of the record whether an

error has been made during the untranscribed portion of

the proceedings.” United States v. Selva, 559 F.2d 1303,

1306 (Sth Cir. 1977).

Unless this can be done, the error warrants reversal. In

reversing a conviction in which the record revealed un-

reported bench conferences, the Fifth Circuit observed

that the Court Reporter’s Act requiring the recording of

all proceedings held in open court in criminal cases “is

mandatory,” and is “not to be overridden by locai prac-

tice.” United States v. Brumley, 560 F.2d 1268, 1280

(Sth Cir. 1977). During an unreported bench con-

ference, the trial court might have instructed trial coun-

sel not to make further examination of a particular wit-

ness as to a_particular matter, might have instructed

trial counsel not to call a particular witness, or might

even have made a derogatory comment about defendant

or his counsel, overheard by the jury.

Since a bench conference is recognized to be an im-

portant part of the proceedings held in open court in a

criminal trial, it is manifest that the failure of the record

on appeal to contain the three separate bench con-

ferences in this case deprived defendant of effective

right of appeal and assistance of counsel on appeal. The

three bench conferences are noted at pages 203 and 219

of Vol. 1 of the record, and page 374 of Vol. 2 of the

record. The record is silent as to what transpired, or

who was present at the bench, or whether the conference

was audible to the jury. Only in the case of the last

conference is there any indication whatsoever as to

what may have been the general subject matter of the

conference.

The cumulative effect of these omissions certainly re-

quires reversal. The Court Reporter’s statute is “manda-

tory rather than permissive.” The District of Columbia

Circuit reversed a case in which the transcript was com-

plete but for one instruction given to the jury during de-

liberations.

“In light of the clear language of the statutory man-

date, the ease with which its requirements can be

satisfied, and the crucial importance of the transcript

to meaningful appellate review, we think that such

exceptions should be narrowly construed. . . . There

can be little doubt that the absence of a complete

and accurate transcript impairs the ability of appel-

late counsel to protect his client’s basic rights. . . .

The problem is greatly exacerbated when, as here,

the attorney representing the appellant is different

from the counsel who represented him at trial. . . .

The difficulties inflicted upon appellant’s counsel by

an inadequate transcript of the trial proceedings are

necessarily shared by the reviewing court. It is diffi-

cult enough in normal circumstances to appraise the

propriety of the trial court’s various actions on the

basis of a cold printed record; when that record is

[incomplete], our review is turned into an exercise

in creative imagination.”

United States v. Workcuff, 422 F.2d 700 (D.C. Cir.

1970). In United States v. Upshaw, 448 F.2d 1218 (Sth

Cir. 1971), the court reversed for the reason that the

record contained the closing arguments of the prosecu-

tion, but not the closing argument of the defense trial

counsel.

Where new counsel is appointed for appeal, he may

not be able to discharge his duty to seek out plain

errors not brought to the attention of the court

unless he can read the entire transcript. Otherwise,

the right to assign plain error may become il-

lusory. . . . And, of course, new appellate counsel

may be unable to assign as error or present effec-

tively matters which were objected to, and the ob-

jections overruled, except to the extent the transcript

informs him of them and supports his presentation

of them. . . . However, the language of the Court

Reporter Act is clear, and its requirements are man-

datory and may not be overridden by local practice.

Since compliance with the act is ‘hot difficult, and

the transcript is of crucial importance to the defend-

ant (and to the appellate court for meaningful re-

view), exceptions should be few and narrowly con-

strued,

448 F.2d at 1223-24.

In recently reversing a case for failure of the record

to contain the closing arguments, the Fifth Circuit ob-

served that two rules have evolved with respect to the

effect of a failure to comply with the Court Reporter's

Act.

The first holds that failure to comply with the act

is not error per se and will not work a reversal ab-

sent a specific showing of prejudice—i.e., appellant

must show that failure to record and preserve the

specific portion of the trial proceedings visits a hard-

ship upon him and prejudices his appeal. [citing

cases] The government urges upon us this body of

law as controlling our decision here. We disagree.

An examination of the second body of case law

reveals that a different rule obtains in cases involving

new counsel on appeal. When, as here, a criminal

defendant is represented on appeal by counsel other

than the attorney at trial, the absence of a sub-

stantial and significant portion of the record, even

absent any showing of specific prejudice or error, is

sufficient to mandate reversal. [citing cases] The

wisdom of this rule is apparent. When a defendant

is represented on appeal by the same attorney who

defended him at trial, the court may properly re-

* quire counsel to articulate the prejudice that may

have resulted from the failure to record a portion

of the proceedings. . . . But when a defendant

is represented on appeal by counsel not involved

at trial, counsel can not reasonably be expected to

show specific prejudice. . . . In such a case, to

require new counsel .o establish the irregularities

that may have taken place would render illusory an

appellant’s right to notice plain errors or defects, . . .

and render merely technical his right to appeal.

United States v. Selva, 559 F.2d 1303 (5th Cir. 1977).

In another recent case dealing with a situation where

the record was incomplete as to the closing arguments,

the Ninth Circuit has specifically held that in this circuit

the Court Reporters are required to make a record of

the voir dire examination of jurors, the opening

statements of counsel, and the closing arguments,

as well as any bench conferences when requested

by the court or counsel. These matters are as much

a part of the proceedings in criminal cases as are

the testimony of witnesses, the rulings of the court,

the motions and objections of counsel, etc. In short,

anything that transpires in open court, with the

possible exception of the reading of a deposition,

should be recorded by the reporter. Local practice

can not alter the statute.

United States v. Piascik, 559 F.2d 545 (9th Cir. 1977).

In Piascik, the Ninth Circuit was able to affirm the con-

viction despite the absence of the closing arguments, on

the basis that the defendant had in open court, in a

portion of the proceedings which was transcribed for

appeal, specifically waived the reporting of the closing

arguments. The Ninth Circuit noted that the requirements

of the Court Reporter’s statute “are mandatory according

to several circuits and, we believe, from a fair reading

of Brown v. United States, supra, they are mandatory in

this circuit.” 559 F.2d at 548. Under the peculiar cir-

cumstances of this case, where the record on appeal is

woefully inadequate in numerous respects significantly

affecting appellant’s rights, and appellant is represented

by new counsel on appeal, reversal is required.

5. The Defendant Was Convicted Of An Offense Not

Charged In The Indictment, On The Basis Of

Evidence Extraneous To The Indictment.

In two respects, defendant was convicted of an offense

for which he did not stand charged by indictment.

Evidence elicited and charged upon by the court so

broadened and in effect amended the indictment as to

include an additional crime not described in the indict-

ment.

First, the indictment charged that appellant interfered

with interstate commerce by extorting money from Mah-

ban to lower or not raise his personal property tax

assessments, while the proof and court’s charge enlarged

and broadened this alleged crime by permitting proof and

instructions concerning a second and different interstate

commerce interference, that of obtaining some sort of

preferential treatment for Mahban with the Internal Re-

venue Service.

Second, the indictment charged that appellant bur-

dened interstate commerce by extortion under the color

of his official authority as a Clark County, Nevada, De-

puty Tax Assessor, and this charge was enlarged and

broadened and amended by evidence and jury instructions

relating to extortion by threats and fear.

Concerning the first amendment of the indictment,

above referred to, it is noted that the indictment is

absolutely silent as to any alleged effect upon commerce

caused by the appellant by intervention, real or threat-

ened, with the Internal Revenue Service. The sole act

charged affecting commerce is the claimed threat of mani-

pulating, by lowering or raising, Mahban’s “property tax

assessment” or “personal property tax assessment” under

color of appellant’s authority as a Clark County, Nevada,

tax official. No reference, direct or indirect, is made in

the indictment to any effect on commerce claimed to be

caused by appellant in manipulating Mahban’s Federal

Income Taxes or any other taxes under the jurisdiction of

the Internal Revenue Service.

Yet, the government attorney alluded to I.R.S. tamper-

ing in his opening statement (Rec. Vol. 1, p. 11, 12),

the testimony concerning the appellant’s alleged I.R.S.

tampering or promises was admitted (Rec. Vol. 1, p. 55,

1. 25; p. 56, 1. 1; p. 57, 1. 20-25; p. 58, 1. 1-3; p. 66, 1.

2-8; p. 77, 1. 10-25; p. 78, 1. 1-9; p. 87, 1. 22-25; p. 88,

1, 1-3; p. 92, 1. 2-10; p. 116, 1. 10-25; p. 117, 1. 10-25;

p. 118, 1. 1-2), and the court charged upon this phase of

the alleged obstruction of commerce (Rec. Vol. 2, p.

431, 1. 10-17).

In argument to the jury, the government’s attorney

stated that appellant “guaranteed I.R.S. would not be

coming” (Rec. Vol. 2, p. 384, 1. 23) and made numerous

other arguments respecting appellant’s alleged I.R.S. con-

nections or promises. (Rec. Vol. 2, p. 392, 1. 17-20; p.

393, 1. 6-8; p. 418, 1. 19-23).

In this connection, it is further noted that to defendant’s

motion for bill of particulars in which defendant re-

quested specification as to what acts were done by the

defendant to induce the alleged victim to pay any sums of

money to the defendant, setting forth dates, times, and

places where such acts were performed, the government

responded that the indictment described the conduct of

the defendant with sufficient particularity and further

specifications by means of bill of particulars was inappro-

priate. (Rec. Vol. 3, p. 82). Thus, there was no attempt

by response to the bill of particulars to broaden or par-

ticularize any of the allegations of the indictment.

It is obvious that one of the crimes for which the

government was attempting to convict defendant was the

crime of obstructing commerce by threatening to manipu-

late Mahban’s Federal Income Taxes; the record is per-

meated with the government’s efforts in this regard. Yet,

this is not the crime for which he was indicted. Nowhere

in the indictment is there any mention or allusion to

I.R.S., Internal Revenue Service, Federal Income or any

other federal taxes. The only crime charged in the indict-

ment, the sole burden on interstate commerce claimed

to have occurred by reason of appellant’s activities, is

another and different Hobbs Act violation, another and

different means and method of burdening commerce. This

situation has resulted in what has been plainly held by

the Supreme Court of the United States in Stirone v.

United States, 361 U.S. 212 (1960) to be an impermiss-

ible and unconstitutional amendment of the indictment,

and a conviction for an offense not charged in the in-

dictment.

In Stirone, the defendant was “indicted and convicted

in a federal court for unlawfully interfering with interstate

commerce in violation of the Hobbs Act.” The indictment

charged only one method of interference with commerce

—that of extortion induced by fear of loss of a contract

to supply ready-mixed concrete, the sand for which moved

into Pennsylvania from out of state. The government

offered evidence supporting this charge, but additionally

proved that the extortion would affect interstate com-

merce in another manner, not charged in the indictment,

that is that the concrete was to be used to build a Penn-

sylvania steel mill which would ship steel out of Penn-

sylvania. Further, the trial court in its charge, instructed

that conviction could rest on a finding of either of the

two claimed interferences with commerce. In this, Justice

Black for the Supreme Court held the trial court erred,

stating:

[W]e agree with the dissenting judges of the Court

of Appeals that it was error to submit that question

to the jury and that the error can not be dismissed.

as merely an insignificant variance between allega-

tion and proof and thus harmless error as in Berger

v. United States, 295 U.S. 78, 55 S.Ct. 629, 79

L.Ed. 1314. The crime charged here is a felony

and the Fifth Amendment requires that prosecution

be begun by indictment.

Ever since Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781,

30 L.Ed. 849, was decided in 1887, it has been the

rule that after an indictment has been returned its

charges may not be broadened through amendment

except by the grand jury itself.

Stirone v. United States, 361 U.S. 215, 216 (1960).

The Supreme Court in Stirone reasoned that since the

Grand Jury was satisfied to charge that Stirone’s conduct

interfered with interstate commerce of sand, the trial

court could not know whether the Grand Jury would have

so charged respecting steel shipments from a plant built

with the sand.

And it can not be said with certainty that with a new

basis for conviction added, Stirone was convicted

solely on the charge made in the indictment the

grand jury returned. Although the trial. court did

not permit a formal amendment of the indictment,

the effect of what it did was the same.

361 U.S. at 217.

Further, Justice Black held that:

[T]he addition charging interference with steel ex-

ports here is neither trivial, useless, nor innocuous.

While there was a . . . variation between pleading

and proof, that variation here destroyed the defend-

ant’s substantial right to be tried only on charges

presented in an indictment returned by a grand jury.,

361 U.S. at 217. Justice Black concluded (361 U.S. 218)

that: “[W]hen only one particular kind of commerce is

charged to have been burdened a conviction must rest on

that charge and not another.” Any deviation, Justice

Black reasoned, resulted in a situation where it would be

impossible to know whether the defendant was convicted

on the basis of the charge the Grand Jury had made

against him, or on the basis of some other crime covered

in the evidence and the trial court’s instructions to the

jury. “This was fatal error.” 361 U.S. at 219.

The same reasoning applies with equal force to the

second situation above referred to whereby the indictment

charged the defendant with extortion solely by reason of

the color of his office, and the proof, charge to the jury,

arguments of the government all enlarged, broadened,

and amended these charges in the indictment by adding

thereto claims that commerce was interfered with by

appellant by means of threats and fear. Threats and fear

are nowhere mentioned in the indictment as a part of

the crime for which appellant is on trial, yet, he was con-

victed of that crime.

Failure to object is not material under the circum-

stances here where the scope of the indictment goes to

the existence of the trial court’s subject matter jurisdic-

tion. The defect here complained of is one which can not

be waived by the appellant even by agreement. Crosby

v. United States, 339 F.2d 743 (D.C. Cir. 1964).

In a recent case, the Ninth Circuit, on the au-

thority of Stirone v. United States, 361 U.S. 212

(1960), reversed a conviction in a situation quite similar

to the matter here before the court. Thus, in Howard v.

Daggett, 526 F.2d 1388 (9th Cir. 1976), defendant

was indicted for traveling in interstate commerce to pro-

mote prostitution with Lucretia Yvonne South and Do-

lores Nelson. The evidence showed the defendant had

relationships with several women in addition to the two

specifically named in the indictment. The jury instruc-

tions did not limit jury consideration to the two women

named in the indictment, and a note from the jury was

responded to by the court by giving a supplemental in-

struction. “The effect of the supplemental instruction was

to permit the jury to convict appellant on the basis of

evidence introduced at trial regarding women other than

the two named in the indictment.” On the authority of

Stirone, this Honorable Court held: “To allow the jury

to consider the evidence respecting the other alleged

prostitutes was to allow the jury to convict of a charge

not brought by the Grand Jury. The supplemental in-

struction constituted an impermissible amendment of the

indictment that ‘destroyed the defendant’s substantial

right to be tried on charges presented in an indictment

returned by a Grand Jury.’ ” 526 F.2d at 1390.

It is submitted that appellant here has likewise been

denied the right to be tried solely on charges presented

in an indictment returned by a Grand Jury.

6. The Indictment Is Duplicitous,

The indictment, in a single count, purports to charge

both (1) attempted extortior and, (2) extortion. This

renders the indictment fatally duplicitious under Rule

8(a), F.R. Crim. P., which requires that every offense

be alleged in a separate count. Wright, Federal Practice

and Procedure, Criminal, Section 142, at 309 (1969).

The case of United States v. Starks, 515 F.2d 112

(3rd Cir. 1975) was a proceeding under the Hobbs Act

under an indictment charging the defendants did “un-

lawfully and willfully conspire and attempt to obstruct,

delay and affect commerce,” by extorting money from a

tavern proprietor. The trial court refused to dismiss the

indictment or to require the government to make an elec-

tion. In reversing the convictions, the court clearly ex-

posed the vices of duplicity as follows:

One vice of duplicity is that a general verdict for

a defendant on that count does not reveal whether

the jury found him not guilty of one crime or not

guilty of both. Conceivably this could prejudice the

defendant in protecting himself against double jeop-

ardy. Another vice of duplicity is that a general

verdict of guilty does not disclose whether the jury

found the defendant guilty of one crime or of both.

Conceivably this could prejudice the defendant in

sentencing and in obtaining appellate review. A

third vice of duplicity is that it may prejudice the

defendant with respect to evidentiary rulings during

the trial, since evidence admissible on one offense

might be inadmissible on the other. . . . Finally,

there is no way of knowing with a general verdict

on two separate offenses joined in a single count

whether the jury was unanimous with respect to

either.

United States v. Starks, 515 F.2d 116-117.

Further, in Starks the court found that the duplicity

in that indictment had occurred where the indictment

charged that the defendant did “unlawfully and willfully

conspire and attempt to obstruct,”; etc. . . . by extorting

money. In explaining this holding the court stated at

515 F.2d 117:

The Hobbs Act proscribes a number of separate

offenses:

(1) robbery;

(2) extortion;

(3) attempted robbery or extortion;

(4) conspiracy to commit robbery or extortion;

Each such offense also required the federal juris-

dictional element of obstruction, delay or effect on

interstate commerce. The indictment charged two

such offenses, conspiracy to extort and attempt to

extort.

Since both were improperly charged in a single

count the defendant’s pretrial motions that the in-

dictment be dismissed or that the government be re-

quired to elect should have been granted.

The court in Starks unequivocally held that extortion

and attempted extortion were two separate offenses. Al-

though in the Starks indictment the two separate of-

fenses which were improperly joined were attempted

extortion and conspiracy to commit extortion, there can

be no difference in principle where, as here, the two

separate offenses improperly joined are those of ex-

tortion and attempted extortion. The same reasoning

as to the vices inherent in such a procedure apply with

equal force to both improper joinders.

There is no question about the materiality of the

court’s holding respecting the duplicitous nature of the

indictment in Starks. This holding was not dicta as con-

tended by the government in its opposition to appellant’s

motion to dismiss. (Rec. Vol. 3, p. 75) This is definitely

borne out in the retrial of the Starks case which reached

the United States Supreme Court in Abney v. United

States, US. , 97 S.Ct. 2034 (1977). On page

2038 the Supreme Court in its opinion states:

On appeal, the United States Courts of Appeals for

the Third Circuit reversed petitioners’ conviction

and ordered a new trial on the ground that the key

tape recording had been admitted into evidence

without proper authentication. United States v.

Starks, 515 F.2d 112 (C.A. 3, 1975). The Court

of Appeals also agreed with the petitioners’ claim

that the indictment was duplicitous. Jd., at 115-118.

However, since the admission of the unauthenticated

tape recording necessitated a new trial in any event,

the court found it necessary to pass on the Govern-

ment’s argument that the indictment’s duplicitous

nature had been corrected by the trial court’s in-

structions to the jury and was thus harmless. /d.,

at 118. Nonetheless, it directed the Government to

elect between the conspiracy and attempt charges on

remand in order to avoid any similar problems at

the next trial. /d., at 118, 125.

CONCLUSION

In the instant case, the government convicted this

appellant of an offense not charged in the indictment and

on an indictment that was fatally duplicitous.

The prosecution as an expedient tool of its trial strategy

permeated the entire trial, from opening statement

through final argument, with unreliable, inaudible, and

untrustworthy tape recordings. The use of these prej-

udicial tape recordings resulted in appellant’s conviction

and the denial of his receiving a fair trial and due process

of law.

Further, the denial of an appellate record and effective

assistance of counsel on appeal, with the other errors

set forth herein, have resulted in a manifest miscarriage

of justice.

Accordingly, defendant-petitioner respectfully prays that

this petition be granted and, that the decision of the

Ninth Circuit and the judgment of conviction of the

United States District Court for the District of Nevada

be reversed and a decision rendered in petitioner’s favor,

- or in the alternative, that the cause be remanded to the

District Court for a new trial.

Respectfully submitted,

CHARLES M. MCDONALD

505-12 Alico Bidg.

Waco, Texas 76701

JACK N. PRICE

306 E. 11th St., Suite L-7

Austin, Texas 78701

CHARLES M. MCDONALD

JACK N. PRICE

Attorneys for Defendant-A ppellant

CERTIFICATE OF SERVICE

I hereby certify that true copies of the foregoing brief

was this day of 1979, placed in

the United States Mail, first class postage prepaid, di-

rected to Mr. Geoffrey Anderson, Attorney in Charge,

Las Vegas Strike Force Office, U.S. Department of

Justice, P. O. Box 160313, Las Vegas, Nevada 89102,

and to Robert J. Erickson, Criminal Division, Dept. of

Justice, Room 2155, Washington, D.C. 20530.

CHARLES M. MCDONALD

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.