# Petition — Callahan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 826

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0109%3A1. Public record. Not legal advice.