Petition — Callahan v. United States

Supreme Court US -\ |

| FILED

1)

\} APR 12 1979

MICHAL K, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

shah @8-1561

DAN CALLAHAN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Feels

Epwarp T. M. GARLAND

GARLAND, Nuckouus & Kapisn, P.C.

1012 Candler Building

Atlanta, Georgia 30303

(404) 577-2225

Attorney for Petitioner

TABLE OF CONTENTS

Page

OS I l

Jurisdiction. ...... SS i eee 2

Questions Presented for Review.................... 2

Constitutional Provisions Involved.................. 3

I OE Ce 4

EE 4

Reasons for Granting the Writ

REVIEW OF THIS CASE IS NECESSARY

TO RESOLVE THE CRITICAL LEGAL

QUESTION OF WHETHER THE SCOPE OF

CROSS-EXAMINATION OF A GOVERN-

MENT’S KEY WITNESS CAN BE LIMITED

WHEN THE QUESTIONS PROPOUNDED

BY DEFENSE COUNSEL ARE FOUND TO

BE RELEVANT AND WHEN THE QUES-

TIONS WOULD EXPOSE THE WITNESSES’

BIAS AND INTEREST IN THE CASE. RE-

VIEW IS NECESSARY TO SETTLE THE

CONFLICTING DECISIONS IN THE VARI-

OUS UNITED STATES CIRCUIT COURTS

WITH REGARD TO THE LANGUAGE OF

THE “CONSCIOUS PURPOSE” CHARGE,

SO THAT JURORS UNIFORMLY APPLY

THE PROPER STANDARDS IN WEIGHING

A CRIMINAL DEFENDANT’S KNOWL-

EDGE. FINALLY, THIS COURT SHOULD

RESOLVE THE NOVEL QUESTION OF

TABLE OF CONTENTS (Continued)

Page

WHETHER A PREJUDICIAL JURY

CHARGE ON CHARACTER EVIDENCE

WHEN COUPLED WITH THE TRIAL

COURT'S INSINUATIONS OF UNETHICAL

CONDUCT ON THE PART OF A STATE

JUDGE, WHO WAS SUBPOENAED BY PE-

TITIONER AND WHICH RESULTED IN

THE WITNESS’ FAILURE TO TESTIFY

PEDEMINES MUILVIGROAL. ...-.....<.......- 7-8

A A SP SA gg 16

Ce A IS Fi et aa ee ah Rea 17

RO eR Strnil sg te ope or ems ey, YN A la

EEE in WR Gonos ee et Be Ib

.

ii

TABLE OF CITATIONS

ee Page

Davis v. Alaska, 415 U.S. 308 (1974)... 2.0... 00..... )

Grant v. United States, 368 F.2d 658, 661

Cie Se RS Se oa haa ee Eds pias Shak we g

Greene v. McKlroy, 360 U.S. 474 (1959)... 10

Pointer v. Texas, 380 U.S. 400 (1965)... ............. 7)

Smith v. Illinois, 390 U.S. 129 (1968)..............%. 7)

United States v. Esquer-Gamez, 550 F.2d 1231

ee ee PR ot cae ees eS ee ee Oe el 15

United States v. Evans, 559 F.2d 244

PR NS EE V5 oe eR Tek ae car ia se hae s RRND 15

United States v. Greenberg, 423 ¥.2d 1106

CR TEE. a Daa etensc AbGind ees a ek en abe )

United States v. Harris, 533 F.2d 306

PEE a Sty gina LC a al tes heb bi 11

United States v, Leigh, 513 ¥.2d 784

COT Cs RE CS ek Fe Rd WE ee eae 8 11

United States v. Onori, 535 F.2d 938, 945

CET, I at Ss Oe ard et eS eg Oo gt i)

United States v. Valle-Valdez, 554 F.2d 911

eR ., BRGROTR CECE ele Sas eee ener ot 15

Other Authority

re eS, as ons AEP RAEN PS ADA Ske eS VALS Ries 2

ili

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

No.

DAN CALLAHAN,

Petitioner,

7

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF PETITIONER

The petitioner, DAN CALLAHAN, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Fifth Circuit.

OPINIONS BELOW

The opinions of the United States Court of Appeals for

the Fifth Circuit on appeal and on rehearing by the orig-

inal panel and en banc, appear in Appendices A and B

respectively.

2

JURISDICTION

The jurisdiction of this appeal is grounded in a Febru-

ary 2, 1979, decision of the United States Court of Appeals

for the Fifth Circuit affirming a judgment of the United

States Distriet Court for the Middle Distriet of Georgia,

and a Mareh 13, 1979, denial of a Petition for Rehearing

by the United States Court of Appeals for the Fifth

Cireuit. The statutory provision conferring jurisdiction

for this appeal is 28 U.S.C. $1254.

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER PETITIONER WAS DENIED HIS

SIXTH AMENDMENT RIGHT TO CONFRONTA-

TION WHEN THE SCOPE OF DIEFENSI COUN-

SEL’S CROSS-EXAMINATION OF THI GOV-

ERNMENT’S KEY WITNESS, JEANETTE

CALLAHAN, WAS UNCONSTITUTIONALLY

AND UNFAIRLY LIMITED SINC THE TRIAL

COURT REFUSED TO PERMIT QUESTIONS

CONCERNING DIVORCE DEMANDS MADE

UPON PETITIONER BY JEANETTE CALLA-

HAN’S ATTORNEY, WHICH WOULD EXPOSE

HER INTEREST AND BIAS IN THIS CASE,

2.

WHETHER PETITIONER WAS DENIED HIS

FIFTH AND SIXTH AMENDMENT RIGHTS TO

DUK PROCESS OF LAW AND TO A FAIR TRIAL

WHEN THE COURT CHARGED THE JURY

THAT “IF YOU SHOULD THINK FROM ALL

THE EVIDENCE OF GOOD CHARACTER, THE

DEFENDANT DID WHAT Hk IS CHARGED

WITH DOING, THEN YOU OUGHT TO CONVICT

HIM .. .°; AND WHEN THE TRIAL COURT

MADE INSINUATIONS OF UNETHICAL CON-

DUCT ON THE PART OF A STATI COURT

JUDGE, WHO WAS SUBPOENAED BY PEVTI-

TIONER AS A CHARACTER WIENESS, RIESULT-

ING IN THE JUDGE'S FAILURE TO TESTIFY.

3.

WHETHER PETITIONER WAS DENIED THIS

FIFTH AND SIXTH AMENDMENT RIGHTS ‘PO

DUEL PROCESS OF LAW AND TO A FATR TRIAL

WHEN THE COURT CHARGED THE JURY

THAT “THE ELEMENT OF KNOWLEDGE MAY

BE SATISFIED BY INFERENCES DRAWN FROM

PROOF THAT A DEFENDANT DELIBERATELY

CLOSED HIS EYES TO WHAT WOULD OTIIER-

WISH HAVE BEEN OBVIOUS TO HIM, A FIND-

ING BEYOND A’ REASONABLE DOUBT OF

CONSCIOUS PURPOSE TO AVOID ENLIGHITEN-

MENT WOULD PERMIT AN INFERENCH OF

KNOWLEDGE .. . PARTICULARLY IN LIGHT

OF THE CONFLICTING DECISIONS IN THE

VARIOUS CIRCUITS ON ‘THIS PARTICULAR

CHARGE,

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment, United States Constitution:

No person . . . shall be compelled in any criminal case

to... be deprived of life, liberty, or property without

due process of law; ...

a 4

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall enjoy

the right... to be confronted with the witnesses

against him... to have the assistance of counsel for

his defense.

PREFATORY STATEMENT

The record of this case is comprised of six volumes,

numbered in Arabie numerals. All citations will appear

to the Arabic number followed by the page reference,

ou; “V E82".

STATEMENT OF THE CASE

Petitioner, a doctor and surgeon in Warner Robins,

Georgia, was charged with four counts of tax evasion for

taxes owed by him and his wife for the years 1971 through

1974 and with one count of tax evasion for taxes owed by

him, alone, for the year 1975. Petitioner was convicted

by a jury as to all counts and was sentenced to five years’

imprisonment. The United States Court of Appeals for

the Fifth Cireuit affirmed his conviction (Appendix A)

and denied a petition for rehearing by the original panel

and en bane (Appendix B).

Petitioner respectfully submits the following chronology

with respect to the issues presented herein:

1. During the trial, the government’s key witness,

Jeanette Callahan, the ex-wife of petitioner, was called to

the stand. She had received a formal grant of immunity

from prosecution for her admitted role in tax evasion

activities. On cross-examination of Jeanette Callahan,

defense counsel attempted to elicit information which

would raise the issue of Mrs. Callahan’s motive, bias,

5

credibility and interest in this case. The Court did not

permit counsel to inquire into what defense counsel

asserted were material demands upon Appellant, by

Jeanette Callahan’s attorney, for certain monies (V.5:635).

The Court interrupted the examination by defense coun-

sel to ascertain the relevancy of the inquiries:

THE COURT: What has that got to do with the

case?

MR. GARLAND: Motive, bias, credibility, inter-

est.

THE COURT: There is no question about the

fact that they have had a dispute. They are divorced.

MR. GARLAND: May it please the Court, I rely

on the right of cross-examination.

THE COURT: You have a right of eross-examina-

tion. The Court is not going to deny it to you but

there is a limit to what’s relevant in this case.

MR. GARLAND: I haven’t gotten started...

(V.5:636).

The issue of money demands and its relation to the motive

and bias of the witness came up many times during cross-

examination. The trial court continued to disallow ques-

tions on this topic. (V.5:636-6389; V.5:654; V.5:655;

V.5:656; V.5:657; V.5:658-664).

2. Late in the afternoon on one of the final days of the

trial, petitioner’s defense counsel announced that his

next witness was Judge Paul C. Armitage, a Superior

Court Judge from Houston County, Georgia, who peti-

tioner intended to use as a character witness on his

behalf. When Judge Armitage appeared, the trial court

called for a bench conference and questioned the propriety

under the Georgia Code of Judicial Conduct of a judge

6

testifying in a trial as a character witness. The court

acknowledged that Judge Armitage was under an official

subpoena, but insinuated that the subpoena was an excuse

to legitimize what was really a voluntary appearance.

The following colloquy between the court and defense

counsel then took place:

MR. GARLAND: I object to this procedure with

a defense witness.

THE COURT: You may object. Your objection is

noted.

MR. GARLAND: The fact that I have him under

subpoena, Judge, I don’t think gives this Court a

right to conduct such an inquiry.

THE COURT: Well there’s a difference of opinion.

I think there is an obligation on the Court to deter-

mine the propriety of judges of other courts coming

in and injecting the power of their public office into a

proceeding in another court.

MR. GARLAND: I object to this court’s com-

ments because it is intimidating this witness. This

court has a tremendous power and the act of doing

that will chill my ability to present witnesses. The

fact that a man is a judge doesn’t remove him from

9 right to be a witness. I ask Your Honor not to

O it.

(V.5:483-4),

The Court later stated to Judge Armitage:

THE COURT: You make the decision but if you

are here voluntarily and that subpoena is just an

excuse to comply with the ethics I suggest you ought

not to testify and if you are here as the result of an

arms length subpoena you ought to testify. You

make the decision and those ethics are up to you.

(V.5:485).

7

The following morning Judge Armitage did not appear in

Court (V.5:494).

3. During the trial court’s charge to the jury, the

judge instructed the jury as follows:

Good character is a positive, substantive fact and

may of itself be sufficient to generate in your minds a

reasonable doubt as to the guilt of the defendant so

us to require an acquittal, although without it the

other evidence would be convincing as to guilt. If you

should think from all the evidence that in spite of

the evidence of good character the defendant did

what he is charged with doing, then you ought to

convict him. In other words, a jury would not be

authorized to acquit merely because of good char-

acter.

_ Petitioner objected to the above instruction being given

to the jury.

4. The trial court also instructed the jury as follows:

The element of knowledge may be satisfied by

inferences drawn from proof that a defendant deliber-

ately closed his eyes to what would otherwise have

been obvious to him. A finding beyond a reasonable

doubt of conscious purpose to avoid enlightenment

would permit an inference of knowledge. . .

(V.6:838).

Petitioner objected to the above-quoted instruction and

made a second objection after the instruction was given

(V.6:747; V.6:851).

REASONS FOR GRANTING THE WRIT

REVIEW OF THIS CASE IS NECESSARY TO RE-

SOLVE THE CRITICAL LEGAL QUESTION OF

8

WHETHER THE SCOPE OF CROSS-EXAMINA-

TION OF A GOVERNMENT'S KEY WITNESS CAN

BE LIMITED WHEN THE QUESTIONS PRO-

POUNDED BY DEFENSE COUNSEL ARE FOUND

TO Bl RELEVANT AND WHEN THE QUESTIONS

WOULD EXPOSE THE WITNESS’ BIAS AND

INTEREST IN THE CASK. REVIEW IS NECES-

SARY TO SETTLE THE CONFLICTING DI-

CISIONS IN TH VARIOUS UNITED STATES

CIRCUIT COURTS WITHE REGARD TO THE

LANGUAGE OF THE “CONSCIOUS PURPOSE”

CHARGIH, SO THAT JURORS UNIFORMLY AP-

PLY THs PROPER STANDARDS IN WEIGHING

A CRIMINAL DEFENDANT'S KNOWLEDGE.

FINALLY, THIS COURT SHOULD RESOLVE THE

NOVEL QUESTION OF WHETHER A PREJUDI-

CIAL JURY CHARGE ON CHARACTER EVI-

DENCE WHEN COUPLED WITH THE TRIAL

COURT'S INSINUATIONS OF UNETHICAL CON-

DUCT ON THE PART OF A STATE JUDGE, WHO

WAS SUBPOENAED BY PEHTITIONER AND

WHICH RESULTED IN THE WITNESS’ FAILURE

TO TESTIFY DISEMANDS REVEIERSAL,

1, WHETHER PETITIONER WAS DENIED HIS

SIXTH AMENDMENT RIGHT TO CONFRON-

TATION WHEN THI SCOPE OF DEFENSE

COUNSEL'S CROSS-EXAMINATION OF THI

GOVERNMENT'S KEY WITNESS, JEANETTE

CALLAHAN, WAS UNCONSTITUTIONALLY

AND UNFAIRLY LIMITED SINCID THE

TRIAL COURT REFUSED TO PERMIT QUES-

TIONS CONCERNING DIVORCE DEMANDS

MADE UPON PETITIONER BY JEANETTE

{)

CALLAHAN’S ATTORNEY, WHICH WOULD

MXPOSH HER INTEREST AND BIAS IN ‘THIS

CASE.

During the eross-examination of key witness Jeanette

Callahan, defense counsel attempted to eliert information

whieh would raise the issue of Mrs. Callahan’s motive,

bias, eredibility and interest ino this ease, There were

many instanees where the Court sua sponte, interrupted

the examination by defense counsel to aseertain. the

relevaney of defense counsel's inquiries,

This Court has already stated that a eriminal defendant

has a right to chgage in-a searching and wide-ranging

cross-cexamination, Saath ov. [linors, 890 US, 129 (1968);

Pointer v. Texas, 380 USS, 400 (1965). As the Fifth Cireuit

stated in United States v. Onor’, 535 F.2d O88, 945 (1976):

The Sixth Amendment confrontation clause guar-

antees to oa eriminal defendant the right to) cross-

expmiine © witness against him. See Pointer v. Texas

... This right is especially important with respeet to

accomplices of other witnesses who may have

substantial reason to cooperate with the govern-

ment. See e.g. United States vo. Greenberg, 423 V.2d

1106 (5th Cir, 1970); Grant vo United States, 368

I.2d GOS, GOL (Sth Cir., 1966),

In Davis ». Alaska, 415 UlS. 308 (1974), this Court

reversed a ruling of the distriet court and stated:

A more particular attack on the witness’ eredibility

is effected by means of eross-examination direeted

toward revealing possible biases, prejudices or ulterior

motives of the witness as they may relate directly to

issues or personalties in the ease at hand. Phe par-

tinlity of a witness is subject to exploration at trial,

and is “always relevant as discrediting the witness

and affecting the weight of his testimony.” 3A J,

me he

Wigmore, Evidence 8940, p. 775 (Chadbourn rey

1070), We have recognized that the exposure of a

Witness’ motivation in testifying is on proper and

important funetion of the constitutionally protected

right of crom-examination. Greene vo Mellroy, 360

US. 474, 496, 70 S.Ct. 1400, 1413, 3 Led 2d 1977

(1950). (at STO-17)

The question sanply put is whether there ean be suffi

cient eross-exnmination to aatiefy the Sixth Amendment

f the triad judge completely foreclosesta tine of question

Ing, Whieh is appropriately asked on erves-esamination of

the key government witness, This Coult must determine

the ciffieult question of how much erossexeamingdtion ts

aifficient to satiety the Sixth Amendment, expeemlly ina

aituation where defense counsel TaRbut off from asking

Appropriate questions on cromeexnmination. No court ean

begin to guess what information elreited from a watnere

will erente reasonable doubt in the minds of jurors and

therefore, when the questions asked on ecrosexamination

are relevant and expose the bins of the witness, refusal by

the trial court to allow sueh questioning should be deemed

an abuse of diseretion,

The crom-examination of Jeanette Callahan was un

fairly limited when the trial court refused to permit

questions concerning divoree demands made upon Peti

tioner by Jeanette Callahan's attorney, The trial court's

restrictions on relevant lines of questioning leaves this

Court with no chotee but to find that croes-examination

was insuflleient to antisfy the Sixth Amendment,

2. WHETHER PETITIONER WAS DENIED HIS

PITH AND SIXTH AMENDMENT RIGHTS

TO DUE PROCESS OF LAW AND TO A FAIR

TRIAL WHEN THE COURT CHARGED THE

JURY THAT “TR YOU SHOULD THINK FROM

ALL THE EVIDENCE OF GOOD CHARACTER,

THE DEFENDANT DID WHAT Hh US

CHARGED WITH DOING, THEN YOU OUGHT

TO CONVICT HIM 2. .°; AND WHEN ‘PHE

TRIAL COURT MADE ENSINUATIONS OF

UNWPTHICAL CONDUCT ON ‘THE PART OF A

STATE COURT JUDGE WHO WAS SUB

PORENABD BY PITITIONER AS A CHAR

ACTER WITNESS, RESULTING IN "THE

JUDG 'S PAILURE TOUTES TEPY,

When the jury heard the character evidence charge

given by the tral court, the jury could easily have formed

thecumpression that character evidence was not ns i

portant as other evidence. The language of the charge

yiven clearly medientes that in certain mnetances character

evidence should be relegated to on subsidiary role, or

totally cheregarded,

The Pifth Cirenit Court of Appeals ported out in ite

opinion that its lengthy and ertical analysis of the an

atroetion given om this ease would have been obviated

had the distret eourt given the pattern instruction on

charneter evidenee that is set forth oon the manual of

pattern metruetions adopted and published by the

Distriet: Judges’ Association of this Cireait, (See Appen

dix 18a) The facet remains, however, that the tral court

friled to give the appropriate inatroction and petitioner

was preyucieed by this failure,

This Court has never addressed iteelf to the appropri

ateness of the “eharacter evidence’ charge which was

given in this ease, In United States», Leigh, 5VS8 2d 784

(Sth Cir., 1975); and United States », Harris, 533 F.2d 306

(Sth Cir., 1976), the Fifth Cireait, Court. did not rule on

12

the appropriateness of the instruetion as charged by the

trial court in the instant case. Petitioner urges that the

novel instruction as given is: prejudicial, controversial

and therefore, appropriate for United States Supreme

Court review,

Not only did the trial court give a prejudicial charaeter

evidence charge in this ease, but the court also denied

petitioner (he testimony of a character witness who had

responded to a valid subpoena to appear at the trial of

the instant ease,

At the moment Judge Armitage arrived in the court-

room, he informed the trial court that he was under

subpoenn by defense counsel, Nevertheless, the trial

court articulated its belief that Judge Armitage’s presence

at trial for the purpose of testifying was unethieal eon-

duet:

TH COURT: A subpoena contemplates that you

are here only because of a subpoena, Tt sounds to this

Judge of course when somebody calls you and says

may Eeome by and you indicated a willingness that

the subpoena is just possibly an excuse,

(V.5:482), Be pies

THE COURT: L think there is an obligation on the

Court to determine the propriety of judges of other

courts coming and interjecting the power of their

public office into a proceeding in another eourt,

(V.5:483), pes ia

THE COURT: Gentlemen, the judicial ethies

suggest that a judge should not injeet the powers of

his office into a case,

(V.5:484). bea

| THE COURT: They suggest, gentlemen, that a

judge was not appointed or elected to be somebody

13

else’s character witness. You see, courts are not here

to testify as to character,

(V.5:484), pclimstes

THE COURT: We select. people from their titles

and there’s the reason we have ethies that suggest

when we become judges we should disassociate our-

selves from domp the things we used to do,

(V.5:484),

Although the trial judge did state that Judge Armitage

should make the deeision as to whether or not he should

testify, the judge’s strong statements left the prospective

witness with no choice at all,

It is quite signifieant that the trial judge told Judge

Armitage that the trial would resume at 9:00 0’cloek acm.

the following morning. However, Judge Armitage was at

that time presiding ina jury trial (V.5:493). Defense

counsel requested a continuance based on the faet that

the witness was at that time unavailable and the follow-

ing colloquy resulted:

THE COURT: If y'all want the judge, T will send

that. United States Marshal there and he will bring

him back very promptly.

MR, GARLAND: LT think that’s a choice we don’t

want,

THE COURT: T don’t blame you,

Just as the trial court gave defense counsel a “Tobson’s

choice” he did not want, the court put Judge Armitage

in the same kind of situation, The trial court did not give

a gratuitous leeture on its interpretation of a judicial

eanon, but instead attacked the personal integrity of a

defense witness.

14

The two limitations discussed, the controversial char-

acter charge and the chilling effeet whieh the trial ceurt’s

interrogation had on an important defense witness, un-

doubtedly hampered an important aspeet of petitioner's

defense. This Court should analyze both the language of

the eharacter witness instruction which was given to the

jury in this ease and the novel and signifieant issue eon-

cerning the chilling effeet of the trial eourt’s interrogation

of Judge Armitage and the subsequent loss of testimony

by an important defense character witness.

3. WHETHER PETITIONER WAS DENTED TIS

PITH AND SIXTH AMENDMENT RIGHTS

TO DUE PROCESS OF LAW AND TO A FAIR

TRIAL WHEN THE COURT CHARGED THI

JURY THAT “THE ELEMENT OF KNOWL,

MDGE MAY Blo SATISFIED BY INFERENCES

DRAWN FROM PROOF THAT A DEFENDANT

DELIBERATELY CLOSED HIS EYES ‘TO

WHAT WOULD OTHERWISE HAVE BEEN

OBVIOUS TO HIM. A FINDING BEYOND A

REASONABLE DOUBT OF CONSCTOUS PUR-

POSE TO AVOLD ENLIGHTENMENT WOULD

PERMIT AN INFERENCE OF KNOWLEDGE

2 2) PARTICULARLY IN) LIGHT Ol THI

CONFLICTING DECISIONS TN THE VARTOUS

CIRCUITS ON THIS PARTICULAR CHARGE,

‘

The jury instruction pertaming to “eonseious purpose

to avoid learning the truth’ was clearly erroneous and

this Court should address itself to this issue, since there

is a conflict between the Fifth Cireuit: and the Ninth

Circuit as to what language adequately instructs jurors

on the proper standards to apply in weighing whether a

criminal defendant has the prerequisite knowledge to

commit the offense eharged.

1h

In United States v, Valle-Valdez, 554 F.2d O1L (9th

Cir., 1979), the defendant appealed his convietion on the

ground that a jury instruction pertaining to “eonseious

purpose to avoid learning the truth’ about the presence

of contraband was erroneous, The conviction was reversed

on this ground and the Court held: That the “conscious

purpose” instruction was deficient in that the instruetion

failed to add that “a deliberate avoidance of knowledge is

culpable only when coupled with a subjective awareness

of high probability.” (at 194). Other Ninth Cireuit: cases

have also required this balancing instruction in conjune-

tion with the “conseious purpose” charge. See United

Slates v. Msquer-Gamez, 550 F.2d L231 (th Cir, 1977).

This additional language is erucial when instrueting the

jury, in order to safeguard diluting the guilty state of

mind required for convietion, In United States v, Moans,

HOO bo 2d 244 (hth Cir., 1977), however, a charge similar

to the one rendered by the trial judge in United States v,

Valle-Valdez, supra, and in the instant ease, Aas been

approved, Thus, this confliel between the Tifth Cireuit

and the Ninth Cireuit on the appropriate language of the

“eonseious purpose” eharge should be resolved by the

Supreme Court of the United States so that trial courts

ean be consistent in their instruetions to jurors and so that

eriminal defendants in the Fifth Cireuit: are not preju-

diced by an inappropriate and incomplete charge on

“eonseious purpose.” The urgency of a Supreme Court

decision on this question arises, sinee the instruction. in

this case allows the jury to conviet a criminal defendant

without being certain beyond « reasonable doubt that he

possessed the mens rea required for income tax evasion,

16

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Court of Appeals

for the Fifth Circuit.

Respectfully submitted,

GARLAND, NUCKOLLS & KADISH, P.C.

BY: /s/ Epwarp T. M. GARLAND

Epwarp T. M. GARLAND

Attorney for Petitioner

1012 Candler Building

Atlanta, Georgia 30303

Telephone: (404) 577-2225

17

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a copy of

the within and foregoing Brief of Appellant upon Mr.

Sam Wilson, Assistant United States Attorney for the

Middle District of Georgia, Macon Division, by depositing

a copy of same in the United States Mail in a properly

addressed envelope with adequate postage thereon.

This the day of April, 1979.

/s/ Exwarp T. M. GARLAND

Epwarp T. M. GARLAND

~~ --

Appendices

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

v.

Dan CALLAHAN, Defendant-Appellant.

No. 78-5251.

United States Court of Appeals,

Fifth Circuit.

Feb. 2, 1979.

Defendant was convicted before the United States Dis-

trict Court for the Middle District of Georgia, Wilbur D.

Owens, Jr., J., of tax evasion, and he appealed. The Court

of Appeals, Charles Clark, Circuit Judge, held that: (1)

trial court’s instruction adequately informed jury that

conviction requires some act willfully done to evade the

tax; (2) trial court properly instructed jury that defen-

dant could not avoid criminal culpability merely by de-

liberately closing his eyes to tax avoidance scheme, if

such scheme would have been obvious; (3) trial court did

not err in refusing to submit defendant’s proffered in-

struction delineating difference between fraud and negli-

gence, since instructions given by trial court completely

described such distinction; (4) trial court’s character evi-

dence instruction properly informed jury that character

evidence was to be treated together with all other evi-

dence and not segregated merely to tip the scales; (5)

trial court did not err in telling jury that if juror would

like to have a particular question asked of a witness dur-

ing his testimony, the juror should write the question out

and have it passed up to judge who would put the ques-

tion to witness if it was not legally improper, and (6)

trial court did not improperly intimidate state court

la

2a

judge and prevent him from testifying as character wit-

ness for defendant.

Affirmed.

1. Internal Revenue 2408

To conviet a person for criminal tax evasion, Govern-

ment must prove three elements: willfulness, existence of

tax deficiency, and an affirmative act constituting eva-

sion or attempted evasion of the tax. 26 U.S.C.A. (LRG.

1954) § 7201.

2. Internal Revenue 2459

In prosecution for tax evasion, trial court’s instruetion

which informed jury that prosecution was required to

prove beyond a reasonable doubt that defendant will-

fully attempted to evade or defeat a tax due the Govern-

ment and that such a showing involved the specific intent

to evade the tax “and some willful commission or omis-

sion or affirmative action by the defendant in furtherance

of that intent” sufficiently required a finding of “some

act willfully done” to evade the tax. 26 U.S.C.A. (LR.C,

1954) § 7201.

3. Internal Revenue 2408, 2459

In prosecution for tax evasion, defendant could not

avoid criminal culpability merely by deliberately closing

his eyes to the tax avoidance scheme, if such scheme

would otherwise have been obvious; trial court’s instrue-

tion correctly conveyed the essential principle that if de-

fendant was really ignorant of the scheme and its resultant

errors on his tax returns, he could not be criminally liable

unless his ignorance was a conscious or purposeful effort

to avoid knowing the obvious truth, 26 U.S.C.A. (LR.C.

1954) § 7201.

3a

4. Criminal Law 829(3)

In prosecution for tax evasion, trial court did not err

in refusing to submit defendant’s proffered instruction

delineating the difference between fraud and negligence,

since instructions given by trial court completely and

accurately deseribed the distinetion between fraudulent

tax evasion and negligent or good-faith failure to pay

taxes due, 26 U.S.CLA, (IR.C.1954) § 7201,

5. Criminal Law 776(2)

A character evidence charge is erroneous if it) could

lead jury to believe that character evidence is to be seg-

regated from other evidence in the case and used only to

lip the seales if that evidence is otherwise close,

6. Criminal Law 776(2)

It is permissible to tell jury that character evidence is

to be considered together with all other evidence in a ease

to determine guilt.

7. Criminal Law 776(4)

In prosecution for tax evasion, trial ecourt’s charae-

ter evidence charge, which instrueted jury that if they

thought “from all the evidence that in spite of the evi-

dence of good character that the defendant did what he

is charged with doing, then you ought to convict him,”

was proper, in view of its repeated emphasis of principle

that character evidence was to be treated together with

all other evidence and not segregated merely to tip the

seales in a close case.

8. Witnesses 246(1)

There is nothing improper about the practice of allow-

ing occasional questions from jurors to be asked of wit-

nesses.

da

9. Witnesses 246(1)

In prosecution for tax evasion, trial court cid not err

in telling jury before opening statements that if any juror

would like to have a particular question asked of a witness

during his testimony, the juror should write the question

out and have it passed up to judge who would put the

question to witness if it was not legally improper.

10. Witnesses 246(1)

The proper handling of juror questions is a matter with-

in diseretion of trial judge.

11. Criminal Law 1166.22(1)

Witnesses 79(1)

In prosecution for tax evasion, in which defendant sub-

poenaed state court Judge as character witness, trial court

did not commit reversible error in providing « gratuitous

lecture on its interpretation of judicial canon prohibiting

judge from voluntarily testifying as a character witness

and then permitting state court judge to determine him-

self whether to testify, although trial court’s concern

about possibility of impropriety on the part of state court

judge should have been handled by the initiation of ap-

propriate action before local bar authorities. Code of

Judicial Conduct, Canons 2, 2 comment, 3, subd. B(3).

12. Witnesses 372(2)

In prosecution for tax evasion, trial court did not abuse

its diseretion in limiting defense attorney’s attempts dur-

ing cross-examination of defendant's ex-wife to inquire

into monetary demands on defendant made by ex-wife's

attorney during the pendency of divorce suit, since pur-

pose of such questioning was to show ex-wife's interest

and bias, and trial court did permit examination in other

areas that amply exposed ex-wife’s bias.

Appeal from the United States District Court for the

Middle District of Georgia.

da

Before GOLDBERG, SIMPSON and CLARK, Circuit

Judges.

CHARLES CLARK, Circuit Judge:

The appellant Dr. Dan Callahan was convicted of five

counts of tax evasion in violation of 26 U.S.C. § 7201.

On appeal the appellant raises a variety of issues con-

cerning the conduct of his trial. We find no reversible

errors aud affirm Dr. Callahan’s conviction,

1. FACTS

Dr. Callahan, a physician from Warner Robins, Geor-

gia, was convicted in a jury trial for tax evasion for the

years 1971-1975. The government offered evidence that

Callahan juggled the financial records covering his prac-

tice to avoid a total of $83,337.04 in tax liability. Calla-

han was fined $50,000 and sentenced to five concurrent

five-year terms in the custody of the Attorney General.

The government’s case was based primarily on the ex-

istence of false financial records kept in the doctor's office

and large amounts of cash stored in the attie of Calla-

han’s home. The office staff maintained a permanent office

ledger which was used by Callahan’s accountant to pre-

pare his tax returns. The ledger purported to account for

all office income. Through a variety of methods, however,

income from patient payments was diverted and not. re-

corded on the ledger. The principal method used to siphon

receipts from the ledger was to record payments from

certain patients on a duplicate cash receipts book. These

payments recorded on the eash receipts book were never

listed on the ledger and the cash receipts book was never

shown to the tax accountant.

The trigger for the income diversion scheme involved

Callahan’s notation of a code acronym, “NOL,” standing

for “not on ledger.’”’ When a patient entered the doctor's

office he would sign his name on a sign-in sheet. Office

personnel then would pull the patient’s medical history

file and attach a small blank tab of paper. The file, with

the attached slip of paper, would be hung on the door of

the examining room. After examining the patient, Calla-

han would write on the slip of paper the amount of money

which the patient would be charged. If only the dollar

amount appeared on the paper, office personnel would

accept payment from the patient and record it on the

office ledger. Whenever Callahan added the “NOL” no-

tetion to the dollar amount written on the slip of paper,

the payment wouid not be recorded on the ledger, but

only in the duplicate cash receipts book. Money from the

office ledger was placed in a cash box. “NOL” funds, how-

ever, were placed loose in an office desk drawer, “NOL”

funds were routinely converted to eash and taken from

the office to the doetor’s home and placed in the inside

coat pocket of an old grey coat kept in a clothes closet.

A notation on the amount of “NOL” cash brought home

was also kept in the coat pocket. Periodically, the cash

would be taken up to the attie of the doctor's home and

placed in one of three strongboxes maintained there.

Much of the government’s proof was obtained from

Jeanette Callahan, the doctor's ex-wife, who first divuiged

the “NOL” story to the IRS during a bitter divorce dis-

pute with the doctor, Jeanette Callahan testified at the

trial under a grant of immunity.

Callahan’s defense did not dispute the government’s

basic factual ease concerning the “NOL” seheme but

7a

sought instead to shift. all criminal culpability for the

scheme to his ex-wife. Callahan testified that Jeanette

handled all businass aspects of his practice while he merely

practiced medicine. According to Callahan, Jeanette set,

up and managed all his business records. At Jeanette’s

request, Callahan “randomly” placed ““NOL” on certain

patient cards. Callahan claimed he had no idea that the

cash that found its way to the attie strongboxes via the

old grey coat was not being recorded for tax purposes.

Not surprisingly, the jury found this defense unconvincing.

On appeal, Callahan challenges several aspects of the

court’s charge to the jury, argues that it was improper

for the court to encourage juror questioning of witnesses,

and claims that the presentation and examination of cer-

tain witnesses were improperly restricted. Finally, the

appellant asserts that the cumulative impact of the

court’s various errors deprived him of a fair trial.

Il. THE JURY CHARGE

A. The Elements of Tax Evasion

{1] To convict a person for criminal tax evasion under

26 U.S.C. § 7201, the government must prove three ele-

ments: “willfulness; the existence of a tax deficiency, . . .

and an affirmative act constituting an evasion or attempt-

ed evasion of the tax.’’ Sansone v. United States, 380 U.S.

343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965).

The appellant claims that the court’s instructions to the

jury failed to include the requirement of an affirmative

act.

|2| The court specifically stated to the jury that:

‘“l¢lhe prosecution must prove beyond a reasonable doubt

that this defendant willfully attempted to evade or defeat

a tax due the government. This involves the specific in-

8a

tent to evade the tax and some willful commission or

omission or affirmative action by the defendant in fur-

therance of that intent.”” At another point in the charge

the court stated that conviction under the evasion statute

required “some act willfully done” to evade the tax. The

appellant’s allegation that the court failed to require the

showing of an affirmative act is flatly contradicted by

the record.

B. “Willful Blindness”

[3] It was clear at Dr. Callahan’s trial that his tax

returns substantially understated his income. for each of

the five years between 1971 and 1975. The only issue was

whether the understatement was knowing and willful.

The court’s elaborate instructions to the jury on knowl-

edge and willfulness included the statement:

Now speaking further about knowledge, the ele-

ment of knowledge may be satisfied by inferences

drawn from proof that a defendant deliberately closed

his eyes to what would otherwise have been obvious

to him. A finding beyond a reasonable doubt of con-

scious purpose to avoid enlightenment would permit

an inference of knowledge. Stated another way, a

defendant’s knowledge of a fact may be inferred

from willful blindness to the existence of the fact.

It is entirely up to you as to whether you find de-

liberate closing of the eyes and the inferences to be

drawn from any such evidence. A showing of negli-

gence or mistake is not sufficient to support a find-

ing of willfulness or knowledge.

The appellant asserts this portion of the charge incor-

rectly permitted the jury to draw an inference of knowl-

edge from evidence of “willful blindness’’, ‘conscious

purpose to avoid enlightenment” and “deliberately closed

his eyes to what would otherwise have been obvious.”’

9a

However, we find the instruction indistinguishable from

the language approved by this court in United States v.

Kvans, 559 F.2d 244, 246 (5th Cir. 1977).

Evans upheld an instruction which stated that ‘ ‘a per-

son who makes a statement with reckless disregard of the

truthfulness of the statement and with the conscious pur-

pose to avoid learning the truthfulness of the statement,

is deemed to have knowledge of this statement.’ ’’? 559

I.2d at 246. Hvans quoted with approval the:statements

in United States v. Sarantos, 455 F.2d 877, 881 (2d Cir.

1972), that an individual may not circumvent criminal

sanctions “merely by deliberately closing his eyes to the

obvious risk that he is engaging in unlawful conduct,”

and that “construing ‘knowingly’ in a eriminal statute to

include willful blindness to the existence of a fact is no

radical concept in the law.”

Although east in different verbal garb, the phrases

“willful blindness,” “conscious purpose to avoid enlight-

enment” and “deliberately closed his eyes to what would

otherwise have been obvious” convey the same meaning

“ ‘veckless disregard of... and... conscious pur-

|’ standard in Hvans.

as the

pose to avoid learning the [truth

Callahan argues that deliberate avoidance of knowledge

of a fact should be criminally culpable only when it is

coupled with proof of actual subjective awareness of the

high probability of the fact’s existence, relying on United

States v. Valle-Valdez, 554 F.2d 911, 914 (9th Cir, 1977).

In Valle-Valdez, the defendant was apprehended while

driving an automobile owned by someone else across the

Mexican border with 667 pounds of marijuana in the

trunk. The Ninth Cireuit reversed the defendant’s con-

viction because the trial court had instrueted the jury

10a

that it could find the defendant guilty if he “acted with

a conscious purpose to avoid learning the truth of the

contents of the vehicle.” 554 F.2d at 913. The court held

that the jury should also have been required to find ‘that

the defendant was aware of the high probability that the

vehicle carried contraband.” Jd. at 914.

The appellant’s reliance on Valle-Valdez is misplaced.

Valle-Valdez did not own the car involved. So far as the

proof disclosed, the trunk was never opened in his pres-

ence. Under these circumstances, the court held the pros-

ecution had to show that Valle-Valdez knew it was highly

probable that marijuana was in the trunk before his con-

scious avoidance of knowledge of its contents would be

incriminating. Along that same line of reasoning, the jury

here was not told that Callahan could be convicted merely

because he closed his eyes to the errors on his tax returns.

Rather, it was told that if the tax avoidance scheme

“would otherwise have been obvious” he could not avoid

criminal culpability merely by deliberately closing his

eyes to it. The facts of the two cases are also inapposite.

It is far easier to imagine innocent ignorance of the con

tents of an automobile trunk than innocent ignorance of

dual receipt books, the “not on ledger’ notations, the

cash and records that were stuffed in Callahan’s coat

pocket at home, and the thousands of dollars that were

secreted in his attic. The requirement that Callahan’s

willful blindness be a failure to see illegal activity that

would otherwise have been obvious supplies here what

was found substantially lacking in Valle-Valdez. Callahan

cannot complain that the exact language of Valle-Valdez

or our own Hvans decision was not followed in his case.

The instruction given correctly conveyed the essential

principle that if Callahan was really ignorant of the “NOL”

scheme and its resultant errors on his tax returns, he

lla

could not be criminally liable unless his ignorance was a

conscious and purposeful effort to avoid knowing the ob-

vious truth. See United States v. Cook, 586 F.2d 572 (Sth

Cir. 1978); United States v. Restrepo-Granda, 575 ¥.2d

524, 528-29 (5th Cir. 1978).

C. Fraud and Negligence

4) The appellant asked the trial court to give a spe-

cific instruction delineating the difference between fraud

and negligence. The proffered instruetion read in’ perti-

nent part:

Negligence and fraud are not identical either in

their nature or effeet. Negligence is the absence of

proper attention to duty, but fraud is always a posi-

tive and willful deviee, resorted to with a speeific

criminal intent in some manner in which the mind

concurs with the act.

A false return is not necessarily a fraudulent one.

It may be merely incorrect, due to negligence or

some other cause lacking intent, sueh as an honest

mistake, Fraud is never presumed but must be de-

termined from clear and convineing evidence, con-

sidering all the facts and circumstances.

The instructions that were given by the trial court com-

pletely and accurately deseribed the distinetion between

fraudulent tax evasion and negligent or good faith failure

to pay taxes due, The instructions included the following

statements:

The word knowingly means that the act or omission

was done voluntarily and intentionally and not be-

cause of mistake or accident. . . .

A showing of negligence or mistake is not sufficient

to support a finding of willfulness or knowledge. . . ,

Now the attempt to evade or defeat the tax must be

a willful attempt, that is to say it must be an attempt

made voluntarily and intentionally and with the spe-

12a

cific intent to keep from the government a tax im-

posed by the income tax laws which it was the legal

duty of the defendant to pay to the Government and

which the defendant knew it was his legal duty to

pay. In other words, the attempt must be made with

the bad purpose of willfully seeking to defraud the

Government of some substantial amount of income

tax lawfully due from the defendant.

I have already defined the word willfully for you.

Let me further point out to you that as applied to

the income tax criminal statute, willfulness is a state

of mind in which the defendant taxpayer is fully

aware of the tax obligation which he seeks to con-

ceal. Willfulness under the tax laws requires an in-

tentional rather than an inadvertent act or omission

and that willfulness must be characterized by a spe-

cific intent to conceal in contrast to a genuine mis-

understanding of the law’s requirements or a good

_ faith belief that certain income is not taxable.

If anything, the trial court’s instructions went further

than the appellant’s proffered charge by repeatedly em-

phasizing the requirement of knowing and willful evasion

of tax liability. The instructions made it clear to the jury

that it could not convict Callahan if it believed that his

failure to report all his income was merely the result of

negligence.

D. Character Evidence

A more serious allegation of error regarding the trial

court’s jury instructions concerns the instruction on char-

acter evidence. The instruction given was:

The defendant, ladies and gentlemen, has intro-

duced what is known as character evidence. That

evidence as to character is properly before the jury,

not as a reason to acquit the defendant if you think

he is guilty but to be considered along with all the

13a

other evidence in the case in determining whether

you think he is guilty or not. Good character is :

positive, substantive fact and may of itself be suffi-

cient to generate in your minds a reasonable doubt

as to the guilt of the defendant so as to require an

acquittal, although without it the other evidence

would be convincing as to guilt. If you should think

from all the evidence that in spite of the evidence

of good character the defendant did what he is charged

with doing, then you ought to convict him. In other

words, a jury would not be authorized to acquit

merely because of good character. Character evi-

dence is to be considered along with all the other

evidence in determining whether the defendant did

what he is charged with doing.

The appellant argues that the charge implies that jurors

must disregard good character if other evidence points

to guilt, emphasizing the sentence which states:

If you should think from all the evidence that. in

spite of the evidence of good character the defendant

did what he is charged with doing, then you ought

to convict him.

The appellant’s argument requires an evaluation of four

prior decisions in this circuit: United States v. Leigh, 513

F.2d 784 (5th Cir. 1975); United States v. Furr, 528 F.2d

578 (Sth Cir. 1976); United States v. Lange, 528 F.2d 1280

(5th Cir. 1976); and United States v. Harris, 533 F.2d 306

(5th Cir. 1976).

Leigh is the initial case in the series which the three

subsequent decisions all purported to follow. The court in

Leigh struck down a character evidence charge because

it included the following sentence:

However, evidence of good reputation should not

constitute an excuse to acquit the defendant if you,

the jury, after weighing all of the evidence in the

l4a

case, is convinced beyond a reasonable doubt that

the defendant is guilty of the offenses charged in the

indictment.

513 F.2d at 785. The court found that the sentence was

an erroneous statement of the law because, ‘‘[sleizing on

this sentence, the jury could easily have formed the im-

pression that reputation evidence could only be used to

tip the seales in defendant’s favor if the case was other-

wise close; this is precisely the contention rejected by

the Supreme Court in |Hdgington v. United States, 164

U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1897)].” 513 F.2d

at 786. The Leigh court further zeroed in on the precise

fault in the offending sentence by explaining that the

phrase “ ‘after weighing all of the evidence in the case’ ”’

conveyed the impression that character evidence was

merely a tie-breaker to be used only if the case was close

and when all other evidence was weighed. The court

found that the error in the sentence was exacerbated by

the fact that it gained emphasis by being placed last in

the instruction, and by its use of the word “excuse,” a

word which implied “that if the jurors let the defendant

go free on the basis of such evidence, they would be ‘ex-

cusing’ his commission of the crime rather than ‘acquit-

ting’ him of it.”? 513 F.2d at 786.

[5] Leigh stands for the proposition that a character

evidence charge is erroneous if it could lead a jury to

believe that character evidence is to be segregated from

other evidence in the case and used only to tip the scales

if that evidence is otherwise close. Leigh explicitly stated

the correct rule:

[I]n charging that reputation evidence alone may

create a reasonable doubt as to a defendant’s guilt,

[the trial judge] more than met the minimum con-

tent requirement for such a charge in this Circuit;

that reputation evidence, considered together with

see

15a

all other evidence, may create such a doubt.

513 F.2d at 785, citing United States v. Fontenot, 483 F.2d

315, 323 (5th Cir. 1973); United States v. Ramzy, 446 F.2d

1184 (5th Cir. 1971), cert. denied, 404 U.S. 992, 92 S.Ct.

537, 30 L.Ed.2d 544; United States v. Cashio, 420 F.2d

1132 (5th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct.

1234, 25 L.Ed.2d 420. Leigh thus drew a distinction. be-

tween instructions which properly require character evi-

dence to be considered along with all other evidence and

instructions which relegate character evidence to a sub-

sidiary role by allowing its consideration only after all

other evidence is separately weighed. Leigh expressly ap-

proved the rule that it is proper to explain to the jury

that character evidence is to be ‘‘considered together with

all other evidence.” 513 F.2d at 785.

In two decisions subsequent to Leigh, this court affirmed

the ‘distinction made in Leigh. United States v. Furr, 528

F.2d 578 (5th Cir. 1976), involved an instruction which

was substantially identical to the Leigh instruction, but

with the inclusion of one additional phrase:

However, evidence of good reputation should not

constitute an excuse to acquit a defendant if you,

after weighing all of the evidence, including the ev-

dence of good character, are convinced beyond a rea-

sonable doubt that the defendant is guilty of the

crime charged in the indictment.

528 F.2d at 579. The court held that the addition of the

phrase “including evidence of good character’ removed

the vice of the Leigh charge because it eliminated the im-

pression that character evidence was different from other

evidence and could be used only to tip the scales if the

case was otherwise close. Jd. at 580. The Furr opinion

also noted that the word “excuse” was a “troubling”

16a

term that should be avoided, but held that its inclusion

was not reversible error.

United States v. Lange, 528 F.2d at 1280 (1976), decided

only ten days after Furr, reached the same conclusion as

Furr by the same reasoning, though it did not cite the

Furr decision. Lange involved exactly the same instruc-

tion language used in Furr. Lange reasoned identically

with Furr that the inclusion of the phrase ‘‘including evi-

dence of good character’’ distinguished the language from

Leigh. 528 F.2d at 1287 n.12. As did Furr, Lange expressed

disapproval of ‘‘the troublesome ‘excuse’ language.” Jd.

at 1287 n.12. Thus, Furr and Lange present independent

interpretations of Leigh that endorse the distinction be-

tween telling the jury to consider character evidence after

considering the other evidence and telling the jury to

consider character evidence together with all the other

evidence.

Two months after Furr and Lange were decided, another

panel of this court decided United States v. Harris, 533

F.2d 306 (5th Cir. 1976). Again the exact language ap-

proved in Furr and Lange was used by the trial court.

The Harris opinion quoted the instruction and then made

a one-sentence holding: “On the authority of United States

v. Leigh, supra, the conviction is reversed.” 533 F.2d at

307. Harris did not discuss, analyze or explain Leigh in

any way, nor did it cite Furr and Leigh or attempt to

explain its direct conflict with those opinions.

The charge given in this case is not the same charge

treated in Harris, Furr and Lange. The charge here does

not use the word “excuse” and is far more elaborate than

the Harris-Furr-Lange charge in its repeated emphasis of

the principle that character evidence is to be treated to-

gether with all other evidence and not segregated merely

17a

to tip the scales. The charge states that character evi-

dence ‘‘is to be considered with all the other evidence in

the case in determining whether you think he is guilty or

not.” It emphasizes that ‘“[glood character is a positive,

substantive fact and may of itself be sufficient to generate

in your minds a reasonable doubt as to guilt.’”? Even the

sentence singled out by Callahan (which reads, ‘If you

should think from all the evidence that in spite of the evi-

dence of good character the defendant did what he is charged

with doing, then you ought to convict him.’’) clearly pre-

serves the idea that good character is to be considered

together with all other evidence. That sentence and the

sentences that precede it plainly set forth the correct legal

rule: good character should be considered together with

all other evidence in a case and may of itself give rise to

a reasonable doubt.

[6,7] We decline to read Harris as intending to modify

the long-standing rule that it is permissible to tell a jury

that character evidence is to be considered together with

all other evidence in a case to determine guilt. That prin-

ciple has existed since the Supreme Court’s 1896 decision

in Edgington, which was endorsed in Leigh and repeated

in Lange and Furr. Because Harris relied exclusively on

Leigh and contained no discussion or analysis, it obvi-

ously did not change that principle. While Harris may

be said to be inconsistent with Lange and Furr and the

correct rules set forth in Leigh, it is phrased in language

considerably different from that used here and is not con-

trolling here. Since the instruction on character evidence

given in today’s case makes it clear that such evidence

should be considered together with all other evidence in

a case, it was correct.

One final observation is appropriate. Our lengthy anal-

18a

ysis In this case would have been obviated had the district

court given the pattern instruction on character evidence

that is set forth in the manual of pattern instructions

adopted and published by the District Judges Association

of this circuit.!

Ill. QUESTIONING BY JURORS ;

Before the opening statements of counsel began, the

trial court told the jury that if any juror would like to

have a particular question asked of a witness during his

testimony, the juror should write the question out and

have it passed up to the judge. The judge said that if the

question was not legally improper, he would put the ques-

tion to the witness. The judge explained that he did not

want to encourage jurors to ask large numbers of ques-

tions but that they should not hesitate to ask a question

if they felt that there was something they needed to know

from a witness and the lawyers or the court had not

brought it out. Only one question from a juror was ac-

tually submitted at the trial; the question asked for the

date on which Callahan first found out that the IRS was

checking on him. Callahan claims that the procedure of

encouraging jurors to ask questions invades the province

of trial counsel and distorts the proper roles of counsel,

judge and jury.

1 The pattern instruction reads:

Where a Defendant has offered evidence of good general repu-

tation for truth and veracity, or honesty and integrity, or as a

law-abiding citizen, the jury should consider such evidence along

with all the other evidence in the case.

Evidence of a Defendant’s reputation, inconsistent with those

traits of character ordinarily involved in the commission of the

crime charged, may give rise to a reasonable doubt, since the jury

may think it improbable that a person of good character in respect

to those traits would commit such a crime.

The jury will always bear in mind, however, that the law never

imposes upon a Defendant in a criminal case the burden or duty of

calling any witnesses or producing any evidence.

19a

{8} There is nothing improper about the practice of

allowing occasional questions from jurors to be asked of

witnesses. If a juror is unclear as to a point in the proof,

it makes good common sense to allow a question to be

asked about it. If nothing else, the question should alert

trial counsel that a particular factual issue may need more

extensive development. Trials exist to develop truth. It

may sometimes be that counsel are so familiar with a case

that they fail to see problems that would naturally bother

a juror who is presented with the facts for the first time.

{9,10} The single question submitted by a juror in this

trial was relatively innocuous and could have had no mea-

surable impact on the outcome. There was no error com-

mitted in allowing the question to be asked, and the pro-

cedure employed of requiring jurors to put their questions

in writing and clear their relevancy with the court was

not an abuse of the court’s discretion to conduct the trial .

fairly.?

IV. RESTRICTIONS ON WITNESSES AND CROSS-

EXAMINATION

A. The State Judge Character Witness

[11] Late in the afternoon on one of the final days of

the trial, Callahan’s defense counsel announced that his

next witness “is a Judge and he is just completing a trial.”

The reference was to Judge Paul C. Armitage, a Superior

2 The proper handling of juror questions is a matter within the dis—

creation of the trial judge. See United States v. Witt, 215 F.2d 580°

584 (2d Cir. 1954). A procedure similar to the one employed in this

case was held not to be error in United States v. Gonzales, 424 F.2d

1055 (9th Cir. 1970). Although no error occurred in this case, this

opinion should not be read as an endorsement of any particular pro-

cedure. District courts must in each case balance the positive value

of allowing a troubled juror to ask a question against the possible

abuses that might occur if juror questioning became extensive.

20a

Court Judge from Houston County, Georgia, who Calla-

han intended to use as a character witness on his behalf.

Judge Armitage had not yet arrived in the courtroom, so

the defense called Callahan to the stand and direct ex-

amination of the doctor began. When Judge Armitage

did appear, the trial court called for a bench conference.

The court questioned the propriety under the Georgia

Code of Judicial Conduct of a judge testifying in a trial

as a character witness. He indicated that he wished to

discuss the issue in chambers, and then required defense

counsel to continue his direct examination of Callahan.

The direct examination was concluded and the jury was

excused for the day.

In chambers the court then began an inquiry into the

circumstances surrounding Judge Armitage’s appearance.

The court acknowledged that Judge Armitage was under

an official subpoena, but questioned whether the subpoena

was merely an excuse concocted to legitimize what was

really a voluntary appearance. The following colloquy

between the court and defense counsel then took place:

Mr. Garland: I object to this procedure with a defense

witness.

The Court: You may object. Your objection is noted.

Mr. Garland: The fact that I have him under subpoena,

Judge, I don’t think gives this Court a right to con-

duct such an inquiry.

The Court: Well there’s a difference of opinion. I think

there is an obligation on the Court to determine the

propriety of judges of other courts coming in and in-

jecting the power of their public office into a proceed-

ing in another court.

Mr. Garland: I object to this Court’s comments because

it is intimidating this witness. This Court has a tre-

mendous power and the act of doing that will chill

2la

my ability to present witnesses. The fact that a man

is a judge doesn’t remove him from the right to be

a witness. I ask Your Honor not to do it.

The court resolved the problem by leaving the choice to

Judge Armitage himself:

THE COURT: The basic question, Judge, is whether

you are here because |you] are subpoenaed or because

of your relationship with the doctor and that telephone

call, the subpoena not having arrived until 4:00. Now

if you are here on an arms length subpoena you may

testify but you are going to have to make that decision

and I think I have the duty to call that Canon of Ethics

to your attention which is right there in 231 Georgia

Reports. You make the decision but if you are here

voluntarily and that subpoena is just an excuse to com-

ply with the ethics I suggest you ought not to testify

and if you are here as the result of an arms length sub-

poena you ought to testify. You make the decision and

those ethics are up to you.

The next morning Judge Armitage did not appear in court

to testify. The appellant argues that the court intimidated

Judge Armitage and thus deprived Callahan of a valuable

character witness.

Canon 2 of the Georgia Code of Judicial Conduct. pro-

vides that a judge “‘should not testify voluntarily as a

character witness.’”’ The Commentary to Canon 2, how-

ever, states the caveat that the Canon “does not afford

him a privilege against testifying in response to an offi-

cial summons.” * The trial court below had no power to

’ The Georgia Code of Judicial Conduct was adopted by the Supreme

Court of Georgia on January 1, 1974. It is published in 202 S.E.2d

at XX XIII, 231 Ga. at A-2. Canon 2 reads:

CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impro-

priety in All His Activities.

A. A judge should respect and comply with the law and should

>

22a

bar Judge Armitage from testifying under a subpoena.

The subpoena was legal and valid on its face; as the offi-

cial summons of the United States District Court it ab-

solved and insulated Judge Armitage from any violation

of the Judicial Canons. The court’s concern about the

possibility of an impropriety on Judge Armitage’s part

should have been handled by the initiation of appropriate

action before local bar authorities. See Code of Judicial

Conduct for United States Judges, Canon 3(B)(3).4

conduct himself at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other rela-

tionships to influence his judicial conduct or judgment. He should

not lend the prestige of his office to advance the private interests

of others; nor should he convey or permit others to convey the

impression that they are in a special position to influence him. He

should not testify voluntarily as a character witness.

Commentary

Public confidence in the judiciary is eroded by irresponsible or

improper conduct by judges. A judge must avoid all impropriety

and appearance of impropriety. He must expect to be the subject

of constant public scrutiny. He must therefore accept restrictions

on his conduct that might be viewed as burdensome by the ordi-

nary citizen and should do so freely and willingly.

The testimony of a judge as a character witness injects the pres-

tige of his office into the proceeding in which he testifies and may

be misunderstood to be an official testimonial. This Canon, how-

ever, does not afford him a privilege against testifying in response

to an official summons.

‘The situation of a judge testifying as a character witness is dis-

cussed in Advisory Opinion No. 9 of the Interim Advisory Committee

on Judicial Activities, Code of Judicial Conduct for United States

Judges at II-21. The Advisory Opinion treats the ethical conflicts

posed by such testimony as matters to be resolved by the witness-

’ judge, not the trial court. The opinion unequivocally states that “if

subpoenaed, a judge must respond to the subpoena.”’ As we note in

the text, however, a trial judge who believes that a judge who ap-

pears as a witness in his court has acted improperly has an obliga-

tion under the Canons to initiate disciplinary action before appro-

priate bar authorities.

23a

On the record before us, however, it appears that the

trial court did little more than provide a gratuitous lec-

ture on its own interpretation of the Judicial Canon. The

court did not bar the testimony of Judge Armitage but

let the Judge himself decide whether to testify. As a prac-

tical matter, Judge Armitage’s testimony as a character

witness would have had to have been “voluntary,” sub-

poena or no subpoena. Callahan could issue a summons

which would command the witness’ appearance, but he

could not by dint of the subpoena force the witness to

speak well of him. The decision on whether to commend

a defendant’s character will always be ‘voluntary’ in

that sense. Obviously, Callahan would not have sub-

poenaed Judge Armitage unless he expected the Judge’s

cooperation. Nothing the trial judge said barred Judge

Armitage from reaching his own decision on whether he

wished to lend the prestige of his office to Callahan’s de-

fense. Although we do not approve of the trial court’s

actions in scrutinizing the Judge’s decision, the fact that

the decision was finally left solely to the witness prevented

the mistake from rising to the level of reversible error.

B. The Cross-Examination of Jeanette Callahan

[12] On cross-examination of Callahan’s ex-wife, de-

fense attorneys attempted to inquire into monetary de-

mands on the doctor made by Jeanette Callahan’s attor-

ney during the pendency of her divorce suit. The purpose

of the questioning was to show Jeanette Callahan’s interest

and bias. The court refused to permit cross-examination

concerning divorce demands by Jeanette Callahan’s attor-

ney, but it did permit examination in other areas that

amply exposed the bias of the doctor’s ex-wife. The de-

fendant’s counsel was instructed that the court would

permit Jeanette Callahan to be questioned on demands

24a

she personally made on the defendant, as well as any vin-

dictive actions she took in reporting the doctor’s activities

to the IRS. Counsel was allowed to ask whether Jeanette

Callahan had stated that “she would rather see Dan Cal-

Inhan dead or in jail” and whether she was “demanding

$48,000 a year or else [she] would go to the IRS.” Jeanette

Callahan’s prejudice was also evidenced by her obviously

bitter divoree from the doctor, her formal grant of immu-

nity, and her admitted complicity in the “NOL” scheme.

The divorce papers were in evidence, and the prosecutor

himself admitted in his closing argument that Jeanette

was biased against her ex-husband. It was within’ the

court’s diseretion to limit this one area of questioning

concerning demands by Jeanette Callahan’s attorney in

view of Jeannette Callahan’s amply established antagonism

to her former husband.

V. CONCLUSION

The government assembled a strong factual case against

Callahan. The appellant claims, however, that at trial the

government received too much help from the court. The

appellant asserts that even if no single action by the trial

court rises to the level of reversible error, their cumulative

impact warrants reversal of his conviction, We have re-

jected, however, virtually every allegation of error pre-

sented on this appeal. There are no legal errors of any

substance to total on Callahan’s behalf,

The appellant’s conviction is

AFFIRMED.

APPENDIX B

[Filed March 15, 1979]

UNITED STATES COURT OF APPEALS

RIFTH CIRCUIT

OFFICE OF THE CLERK

March 13, 1979

TO ALL PARTIES LISTED BELOW:

No. 78-5251

U.S.A. v. DAN CALLAHAN

Dear Counsel:

his is to advise that an order has this day been entered

denying the petition (—) for rehearing, and no member

of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en bane (Rule 35, Federal Rules of Appellate

>> yay “a ) Ps . Lg oh.

Procedure; Local Fifth Circuit Rule 16) the petition (— )

for rehearing en bane has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Kpwarp W. Wapswortn, Clerk

By /s/ SALLY Hrywarp

Deputy Clerk

ce: Mr. Edward T. M. Garland

Mr. Samuel A. Wilson

lb