Petition — McPartlin v. United States

Supreme Court of the Cnited States

Octosner Term, 1978

UNITED STATES OF AMERICA,

Respondent,

vs.

ROBERT F. McePARTLIN,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WriiuiM J. Harte

Ricuarp J. PrRenperGAst

111 West Washington Street

Chicago, 1L 60602

(312) 726-5015

The Scheffer Press, Inc.—(312) 263-6850

SUBJECT INDEX

PAGE

Citations To Opinions Below ............susssssersermeerseeseenee —

PLETE SES i 2 ae SOP RC 1

Constitutional And Statutory Provisions ....... iaiaiosodakes 2

I a sscassecoduenbeksnsensnensn’ 2

I i scalssnsunennnie 2

BE TOE GER FE TTE acne cecessccesssscessscbaccossecscesscesce 3

I. The Government’s Failure To Fulfill Its Obliga-

tions Under Brady v. Maryland Requires Re-

eee ate addicts meconeiiticcstnanieressivnnenmitinisane sovvnnems +

If. The Trial Court Erred In Refusing To Grant

Defendant McPartlin A Severance From The

I ni sccssidechencosseseatos 13

Ill. The Inconsistent Rulings Of The Court On

Critical Documentary Evidence Prejudiced Pe-

ss evens 16

a salechapslitanemend 18

side ich atescartes oeiasceinsotabesitadbicemmnaadtetbamsesees la

TABLE OF AUTHORITIES

CasEs

Brady v. Maryland, 373 U.S. 33 (1963) oo... 2,3

Jackson v. Wainwright, 390 F.2d 288, 298 (5th Cir.

RRR SIRT CIRETE SS acl SN AEN PSS oOo 10

United States v. Agurs, 427 U.S. 97, 112 (1976) wo... 8

United States v. Esposito, 423 F.2d 242, 248 (7th

Cir. 1975), cert. denied 425 U.S. 916 (1976) ....... ore |

$s

PAGE

United States v. Gerard, 491 F.2d 1300, 1302 (9th

EE URS STR ORE DN i COR 13

United States v. Kahn, 381 F.2d 824 (7th Cir. 1967) .... 13

United States v. Keough, 391 F.2d 138, 147 (2d Cir.

POI - cities hatecisbiiasaqeunnidantltineneenieksaneeniabbeccustiegatisibiehseaniesdateciions 8

United States v. Johnson, 478 F.2d 1129 (5th Cir.

5 RRC TEE Me RU RRS Ee LUE SE WE 13

United States v. Lomprey, 472 F.2d 860 (7th Cir.

SNUIE <adaiaxanssisik scclgdanaactoectienenlaceNgnsheebasadaeteaaaldocinbinaacvckencadaine 12

United States v. Partin, 320 F. Supp. 275, 285 (G.D.

SO PUINED idea ction dascdisiaccTina tein oedeasssasnabsclidebnaihamebiomebeciidndinsines 10

United States v. Pollack, 534 F.2d 964, 973 (D.C.

Spay SHOUD aaicdnnanbvenaasncahasavcniatandeniansteaoaanmassmbiiagtaninlanhsscin 10

United States v. Stone, 471 F.2d 170 (7th Cir.

ME 2 sctbliicidhasindecigcsaplinceaenrate ehiakastaan Gi bith sickle ebaaitanspandoniiiss 12

United States v. Weidman, ........ cme cctdaans (7th Cir.

1978) (Slip op. No. 6-1110, Mareh 31, 1978) .....0.... 8

STATUTES

Federal Rules of Evidence 803(6) (1975) oo... 16, 17

Se IIs, TUTE: sdsisin Oh acocnnacebaidinijepclaeagesclina MamabnibeSesadsiaxianion 2

I rie ir eh shtirch elaicach nd evccbeb npisdecadpbasbachs Names sobaiondnekad 2

Be Os INE bshcincnindsaiaiiead ts Gesseteandidlacdanntceaioraaci 2

In THE

SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1978

UNITED STATES OF AMERICA,

Respondent,

VS.

ROBERT EF. MePARTLIN,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Seventh Circuit rendered in the above entitled

ease on March 26, 1979.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Cireuit is unpublished. It is set forth in

a Joint Appendix filed contemporaneously with this

Petition by several co-defendants in this cause.

JURISDICTION

The judgment of the Cireuit Court of Appeals was

entered March 26, 1978. A timely petition for rehear-

ing was filed and was denied on April 23, 1979. Jurisdic-

tion of this Court is invoked under 28 U.S.C. §1254(1).

is Da

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional provision involved is the Due Process

clause of the Fifth Amendment. The statutory provisions

include 18 U.S.C. Sees. 371, 1343 and 1952. Pertinent

statutory provisions are set forth in Appendix A to this

Petition.

QUESTIONS PRESENTED

1. Did the Government’s willful failure to fulfill its

obligations under Brady v. Maryland, 373 U.S. 83 (1963),

thereby depriving petitioner of a fair trial, violate his

constitutional rights to due process under the Fifth Amend-

ment?

2. Where the defenses of the defendants were so

antagonistic that belief of one required disbelief of the

other, did the trial court’s refusal to sever the eases vio-

late petitioner’s constitutional right to due process under

the Fifth Amendment?

3. Did the trial court’s admission of documentary evi-

dence tendered by the Government, together with its ex-

clusion of similar documentary evidence tendered by the

defense in apparently contradictory rulings, manifest a

double standard in the conduct of the trial and thereby

violate petitioner’s constitutional right to due process un-

der the Fifth Amendment?

STATEMENT

The indictment in this cause charged petitioner Robert

F. MePartlin and others with various violations of 18

U.S.C. §§371, 1343 and 1952. The jury returned a ver-

dict of guilty as to the conspiracy count, and certain of

the remaining counts charging violations of §§1343 and

1952. Robert F. MecPartlin was sentenced to a total of

eight years in prison and fined a total of $40,000.00. On

appeal the Seventh Circuit unanimously affirmed the judg-

ment of the trial court.

age

REASONS FOR GRANTING THE WRIT

1. Brady v. Maryland

Petitioner submits that this case presents this Court

with the unusual question of the Government’s planned,

wilful and admitted withholding of favorable evidence,

contrary to an explicit order of the trial court, until the

Government’s opening statement at the trial. This evidence

was such that it required extensive investigation by the

defense after disclosure, and could have led to substan-

tial other favorable evidence if disclosed earlier. The

excuse of the Court of Appeals, ie., “the failure of

the defendants to pursue adequately any subsequent in-

vestigation and their subsequent failure to request addi-

tional time for any investigation,’’ has absolutely no

foundation in the real world. Petitioner is not a man

means, a father of ten children, and had to rely upon

friends to raise money for his attorney fees. Brady v.

Maryland does not comtemplate or permit the Govern-

ment’s planned, designed, wilful, admitted secreting of

favorable evidence until the actual trial of the cause.

2. Severance

There was no possibility of a fair trial for all defen-

dants in this ease. The defense of the Ingram defendants

(extortion by the “Chicago” defendants) rendered impos-

sible the defense of the so-called “Chicago” defendants.

Severance was not requested to obtain a ‘‘tactical advan-

tage’’ or ‘‘a better chance of acquittal’, as suggested by

the Court of Appeals. The defenses were so antagonistic

as to preclude fair consideration of petitioner’s defense.

'

|

3. The Inconsistent Evidentiary Rulings

The trial court admitted evidence proffered by the Gov-

ernment of non-contemporaneous entries in a personal

diary of an admitted thief, embezzler and liar, on the

ae

ground that there was a showing of the requisite “trust-

worthiness”. The trial court excluded evidence, proffered

by defendants, of an accountant’s records and a bank

statement because they “lacked sufficient trustworthiness

to: permit admissibility.” These rulings were totally in-

consistent applications of the same rule of evidence.

I

THE GOVERNMENT’S FAILURE TO FULFILL IT'S

OBLIGATIONS UNDER BRADY v. MARYLAND RE.

QUIRES REVERSAL.

On July 20, 1976, counsel for defendant Frederick In-

gram made a formal request that the Government dis-

close favorable evidence, including specific requests that

the Government disgorge any written statements or grand

jury testimony of any person claimed to have been a

co-conspirator, and any material reflecting that William

Benton, the Governmeat’s principal witness, benefitted

personally or financially as a result of the dealings be-

tween the MSD and Ingram Corporation.

The Government flatly refused to deliver any grand

jury testimony and replied that it was aware of its re-

sponsibility under Brady v. Maryland and that upon com-

pletion of its review, all relevant Brady material would

be produced. On August 9, 1976, the Government having

failed to further respond, defendants Frederick and F.

Bronson Ingram filed a motion for production of evi-

dence favorable to the defendants. Robert McePartlin

adopted this motion, which requested that the Court order

the Government to disclose any information showing:

“(5) That Benton was fired by any former em-

ployer for diverting substantial sums of money to

his own personal use.

(6) That Benton arranged to have Ingram Cor-

poration funds, . . . diverted to any person or per-

oe

sons . . . and subsequently diverted to his own use

(7) That Benton improperly took funds.”

The Government responded that it had made available

all documentary evidence. In an order dated October 22,

1976, Judge Brady held that “defendants are clearly en-

titled to... (1) any evidence favorable to them (inelnd-

ing any such material which would also be produceable

at trial under $3500) and (2) any material required by

Rule 16 of the Federal Rules of Criminal Procedure.”

Noting that “some of the defendants have apparently at-

tempted to list every conceivable kind of evidence that

might or could be favorable to them, without reference

to whether there is even a bare possibility that such ma-

terial exists”, the Court ruled as follows:

“Rather than belabor over each of these individual

items, the court is entering an order requiring pro-

duction of all favorable evidence, regardless of what

it is ... A blanket order of this kind obviously re-

quires and assumes good faith on the part of the Gov-

ernment. But this is true regardless of whether the

order refers to a general class of evidence or to speci-

fic items. The Court and the defendants must rely

upon the representations of the Government wm either

case.” (emphasis added).

The Court’s order, applicable to all defendants, specifi-

cally required that the Government must provide “[a]ll

evidence favorable to the defendant, by which is meant

evidence which either by itself or in combination with

other evidence creates or tends to create a reasonable

doubt of the defendant’s guilt. This includes, but is not

limited to, documents, tangible objects, statements of wit-

nesses, grand jury testimony, and statements of co-de-

fendants. This portion of the order is intended to ensure

compliance with the mandate of Brady v. Maryland.” (R.

Vol. II, 26) (emphasis added)

wre kee

On September 8, 1977, a full thirteen months after the

initial request and eleven months after Judge Grady’s

order, the Government delivered its opening statement,

and disclosed for the first time that Benton had stolen

$376,000.00 of the money allegedly given to him by Ingram

Corporation for the purpose of bribing the Chicago de-

fendants (Tr. 47-8). Following the opening statement,

defense counsel strenuously objected to the Government’s

failure to disclose this fact at any time prior to trial, de-

spite the Court’s unequivocal order and the fact that, as

the Government conceded, the information had been known

to the Government since prior to Benton’s appearance

before the grand jury, roughly two years before trial.

(Tr. 237).

During the arguments which followed, Judge Grady

asked: “Are you saying, Mr. Nash, that the documents

you have disclosed to the defense already show a $376,-

000.00 discrepancy on their face?” Mr. Nash responded:

“On their face. That is correct.” (Tr. 226). As Mr. Neal,

representing the Ingrams, responded, “That is just pat-

ently not accurate.” (Tr. 227) Mr. Neal, who had had

aceess to the Ingram documents, as well as those dis-

closed by the Government, and who had been involved in

a well-financed and thorough effort to prepare the Ingram

defense, stated to the Court:

‘*T have gone over the documents, and I know that

some money disappears, but to say that Mr. Benton—

that I know, [based on those documents] that Mr.

Benton got that or could prove that Mr. Benton got

that is absolutely inaccurate.” (Tr. 227)

The following day, Mr. Neal advised the Court that

he had worked until two or three o’clock in the morning

reviewing “the Benton materials”—‘“probably three feet

thick of materials”, and advised the Court as follows:

pen ie

“T would say on behalf of the other counsel, it took

me months, literally, to trace money available to Ben-

ton, money allegedly delivered to Chicago, money

otherwise accounted for and money missing. That is

about all you can say. J do not know how anyone of

the Chicago counsel really could have traced this

money, but that is their problem to show.” (emphasis

added )

Mr. Neal also pointed out that, the previous evening,

he had reviewed a document consisting of Benton’s grand

jury testimony—a document prepared by the Government

and read by Benton which contains the statement: “The

remaining $337,000.00 which was not distributed is the

amount of money I am responsible for keeping.” The

Court was moved to respond that the Government should

have made available the information concerning Benton’s

theft prior to trial, and that it should not have been left

to inference (Tr. 247).

In addition to the obvious fact that the information

withheld was highly favorable to the defendants for pur-

poses of impeachment [see, United States v. Esposito,

423 F.2d 242, 248 (7th Cir. 1975), cert. denied 425 U.S.

916 (1976)], the fact that Benton retained all or a por-

tion of the “bribe money” impacts critically upon the

question of whether the Ingram money was distributed

to any of the Chicago defendants, and if so, to whom and

in what amount. Clearly, the Government was aware that,

in denying the receipt of money from Benton, each of

the “Chicago” defendants would argue that any funds

which the Ingrams claimed to have given to Benton went

no farther (Tr. 226).

The Government has an absolute obligation to volun-

tarily disclose “Brady” material as a matter of due pro-

cess of law. Thus, even in the absence of a specific re-

quest, if the suppressed evidence is such that it “creates

—8—

a reasonable doubt that did not otherwise exist, consti-

tutional error has been committed.” United States v.

Agurs, 427 U.S. 97, 112 (1976). In any event, once a re-

quest is made by the defense for exculpatory material

within the Government’s control, the argument that no

court order was issued specifically requiring disclosure

becomes irrelevant. In reference to a specific request by

the defense for exeulpatory material, the Agurs Court

held that the Government’s failure to respond is “seldom,

if ever, excusable.” Following Agurs, the Seventh Cireuit

indicated in United States v. Weidman, ...... Pe ison (7th

Cir. 1978) (Slip Op. No. 6-1110, March 31, 1978), that

where the defense makes a specifie request, the applicable

standard of materiality is less than that whieh is required

when the request is of a general nature.

It should be noted, as did the Court in United States v.

Keough, 391 F.2d 138, 147 (2d Cir. 1968), that a specific

request by the defense serves to give the proseeutor notice

of the importance which such evidence has to the defense.

Aware of the inequity which non-disclosure would create

in such a situation, the Keough Court held that a specifie

request imposes upon the prosecutor a duty to make “a

careful check of his files”. It is fallacious to argue that

onee such a careful check is made, exculpatory evidence

thus discovered or otherwise known to the Government

may be withheld from the defense.

In the context of the case against Robert MePartlin, the

failure to disclose the facet that Benton had retained

$337,000 of the alleged bribe money was critical. [lad this

fact been disclosed to the defense, specific requests could

have been directed toward moje detailed information con-

cerning those funds. For example, if a portion of the

$337,000 retained by Benton were determined to have

been obtained by him shortly prior to the date on which

mea

he allegedly made a payment to MePartlin, that evidence

would have critically impacted upon the defense that

Benton kept the funds which he claims to have passed

on to this Appellant. It should be noted that defendant

Lynam was acquitted, despite Benton’s testimony, because

Lynam was able to demonstrate that shortly after Benton

claimed to have delivered $5,000 to him, Benton’s account

at a jewelry store was credited in that amount. (Tr. 674

78).

The record is clear that the Government had knowledge

of the specific amount of money which Benton claimed to

have kept. The record is equally clear that the Govern.

ment did not obtain its knowledge by perusing a massive

array of documents, but rather received its information

directly from Benton. It goes without saying that Ap-

pellant did not have access to Mr. Benton, as did the

Government prior to trial (Tr. 241-242), not that he

would have been a very cooperative source of information

in any event,

Benton claimed to have kept $337,000. No one knows,

however, whether b> actually kept $500,000 or $700,000 or

a million dollars. A thorough investigation into the dis

position of those funds which he admittedly retained

might have revealed that additional funds were similarly

expended, deposited or hidden. But the Government's dis-

closure in its opening statement as to the amount which

Benton says he retained came entirely too late to allow

for such an investigation.

It is respectfully submitted that the Government's

failure to disclose Benton’s embezzlement of Ingram Cor-

poration funds until the commencement of the trial, served

to achieve essentially the same result as non-disclosure,

The belated disclosure precluded any chance of effective

investigation, and as a result destroyed the potential to

—

uncover exculpatory evidence regarding the funds al-

legedly delivered to MePartlin by Benton.*

The Government's efforts to sidestep its obligation

under Brady by merely making voluminous records avail-

able for examination and copying, when Benton's illicit

activities and the amount of money he embezzled had been

discovered by the prosecution two years prior to trial,

creates a condition not dissimilar to that found in Jackson

v. Wainwright, 390 F.2d 288, 298 (Sth Cir. 1968). There,

the Court held that the prosecution’s partially truthful

disclosure actually amounted to an affirmative misrepre-

sentation. Disclosure must occur in sufficient time to enable

the defendant to utilize the information effectively. Thus,

in United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir.

1976), the Court held that while Brady may be viewed

in some contexts as not creating a right to pre-trial dis-

covery, strict application of such a view would inevitably

produce situations where the prosecution, by late dis-

closure, could effectively “emasculate” Brady. By delay-

ing disclosure until after trial had commenced, when de-

fense counsel were immersed in the demanding and time-

consuming task of litigation, defendants were precluded

from conducting an effective follow-up investigation. See

U.S. v. Partin, 320 F.Supp. 275, 285 (G.D. La. 1970). By

thus failing to disclose material essential to MePartlin’s

defense until the trial had actually begun, the Govern-

ment purposely and blatently attempted to satisfy its duty

under Brady in a manner calculated to render disclosure

void of any real substance,

* In this connection, it should be noted that defendant

Weber’s counsel requested “a recess for a reasonable time

for additional investigation” (Tr. 249). The request was

denied.

|;

It is beyond petitioner’s comprehension how any fair

person can address the Brady issue in this case and agree

with the decision of the Court of Appeals. Brady vy. Mary-

land has been stood on its head; all that remains is the

shell. Until this decision, every single proseey ‘or in every

single court, whether state or federal, has been obliged to

unhesitatingly reveal Brady material long before trial so

as to comply with the true meaning, purpose and spirit of

Brady.

The Court of Appeals ignored, failed to consider, or

gave an inadequate and incomplete response to the fol-

lowing arguments in the briefs filed therein on this issue:

(a) Defendant had to rely on the ‘‘good faith’’ of

the government that it followed the Court order to

turn over ‘‘favorable evidence regardless of what

it is’’, and planned MePartlin’s defense accordingly.

(b) The information withheld was highly favor-

able to the defendants for purposes of impeachment.

(ce) The fact that Benton retained all or a portion

of the ‘bribe’ money impacts critically upon the ques-

tion of whether the Ingram money was distributed to

any of the Chicago defendants, and if so, to whom

and in what amount... [EJach of the ‘Chicago’

defendants would argue that any funds which the

Ingrams claimed to have given to Benton went no’

further.

(d) Nondisclosure ‘‘ precluded any chance of effec-

tive investigation, and as a result destroyed the poten-

tial to uncover exculpatory evidence regarding the

funds allegedly delivered to MePartlin by Benton.”

(Appellant’s Br., p. 36).

_

Finally, petitioner calls this Court’s attention to the

fact that not one word is said in the Seventh Circuit’s

lengthy opinion about the Government’s inability to ae-

count for its failure to disclose this information in the

face of a court order. Once again, and all too often the

concept of fair trial is diluted by a rush for justice in a

sensational trial.

The new Brady rule measures how long one ean with-

hold information notwithstanding a court order to reveal

it long before trial? It must be remembered that the

court ordered this material produced long before trial.

The Government had the material long before trial. The

Government chose not to reveal it until the opening state-

ments. Why? To assist its prosecution? Of course!!

Why? Was the delay caleulated? Of course!! Why?

To make it difficult, if not impossible for defendants to

discover helpful material? Of course!! There is no other

possible explanation. The Government does not claim mis-

take, inadvertence. or accident. The Brady violation was

intentional.

This case is not U.S. v. Stone, 471 F.2d 170 (7th Cir.

1972) or U.S. v. Lomprey, 472 F.2d 860 (7th Cir. 1972).

Comparing those cases to the one at bar is like comparing

fleas with elephants. In Stone, the defendant claimed

that the withheld witnesses would have testified they

could not identify him. But both witnesses testified at

trial that they could not identify him. In Lomprey,

another witness identification case, the pretrial exculpatory

expressions were delivered to defendant in time for use

during trial. In neither case would investigation have re-

vealed anything useful to defendants.

As we labored to state to anyone who would listen, in the

Court of Appeals, this case was a complex sensational

criminal trial which took tie Government with all its re-

a

seurees years to investigate. The trial alone extended two

months. The defendant is a man with limited resources,

and a wife and a load of children to feed. What possible

sense does it make to suggest that during the trial, while

he and his attorney are present in court all day, every

day, he can conduct an investigation of the affairs of

the Government’s chief witness.

Regardless of whether the failure of the Government

to meet its obligations under Brady is viewed as an ad-

mission that the proper discharge of its duties would have

jeopardized the Government’s case, or whether the proper

administration of our system of justice simply cannot

tolerate such actions*, the result is the same—reversal

of Petitioner’s conviction.

II.

THE TRIAL COURT ERRED IN REFUSING TO

GRANT DEFENDANT McPARTLIN A SEVERANCE

FROM THE INGRAM DEFENDANTS.

Petitioner respectfully submits that, in refusing to sever

the trial of the Ingram defendants from that of the remain-

ing defendants, the trial court committed prejudicial error

and denied petitioner a fair trial.

It is respectfully submitted that the instant case clearly

falls within the parameters established in United States

v. Kahn, 381 F.2d 824 (7th Cir. 1967), and by the Fifth

Cireuit in United States v. Johnson, 478 F.2d 1129 (5th

Cir. 1973), pursuant to which the trial court should

have granted the motions for severance. Just as ‘‘Smith

was the Government’s best witness against Johnson”

in the latter case, the Ingrams, the witnesses called on

their behalf, and their counsel (both in argumnt and

* See, United States v. Gerard, 491 F.2d 1300, 1302 (9th

Cir. 1974).

a low

in the course of cross-examining Benton) seized every

opportunity to support and reinforce the Government's:

claim that the “Chicago” defendants had participated ina

scheme and conspiracy to extort money from Ingram Cor-

poration. The extent and effectiveness of this effort is well

demonstrated in the record of this case.

That the defenses of the two groups of defendants were

so inconsistent as to satisfy the requirements of United

States v. Kahn, supra," is perhaps best demonstrated by

the fact that, given the defense advanced by the Ingrams,

it would have been impossible, as a practical matter, for

all defendants to be acquitted. The Ingrams’ defense was

that. the monies paid by Ingram Corporation were the

product of a scheme of extortion so pervasive as to negate

the intent necessary to sustain a conviction for bribery.

The defense advanced by each of the “Chieago” defen-

dants was not only that they did not receive money fro

Benton, but that they had never demanded such payments.

In order for the jury to find Frederick Ingram not guilty,

it would have been necessary for the jury to conclude that

the coercive and extortionate actions of at least one

Chieago defendant were such as to have negated any in-

tent on the part of the Ingrams to commit bribery. To

posit any real possibility of a verdiet favorable to all de-

fendants, given the Ingram defense, is to operate in a

world of make-believe.

More importantly, however, one cannot examine the

issue of severance solely in the context of whether, as an

academic matter, some possible set of cireumstanees might

conceivably result in a verdict of acquittal for all, thus es-

* At a minimum, Aahn requires severance under cireum-

stances in which, “if one defense were believed, the other

could not be.” 381 F.2d at 841.

een.

tablishing the theoretical possibility that the antagonistic

defenses were not wholly inconsistent. Rule 14 of the

Federal Rules of Criminal Proeedure provides for sever-

ance “[{i]f it appears that a defendant or the Govern-

ment is prejudiced by the joinder of offenses or of de-

fendants in an indietment or information or by such

joinder for trial together, .. .”. That the Chieago defen-

dants were prejudiced by, the joinder of the ease against

them with that against the Ingrams is manifest. The

record in this case is replete with the hearsay testimony

of Frederick Ingram and others as to what they were

told by Benton. That testimony was admitted to establish

Ingram’s state of mind, and ostensibly was admitted solely

for that purpose. The extra-judicial statements of Benton,

presented to the jury in this manner, tracked the Govern-

ment’s case against the Chicago defendants in every re-

speet. To argue that the jury could consider this evidence

as bearing only upon Ingram’s state of mind, as instructed,

and disregard it as substantive against the Chieago de-

fendants, is pure folly.

Likewise, the cross-examination of Benton, a sampling

of which appears at pages 10 through 13 of the Janicki

brief in the court below, demonstrates the extent to which

the Ingram attorneys were allowed to lead Benton through

the very areas, and elicit testimony regarding the same

matters, as had been developed by the Government during

direct examination. No doubt, the Government would have

been delighted had it been allowed to examine its prin-

cipal witness through the use of leading and suggestive

questions; no doubt the Government was delighted when

counsel for the Ingrams, under the guise of eross-examina-

tion, did precisely what the Government could not.

In essence, the Chieago defendants were tried twice,

onee by the Government and onee by the Ingrams. That

he

the Ingrams should have been provided a full oppor-

tunity to pursue their defense is beyond dispute. That

they should have been able to do so at the expense of the

remaining defendants was reversible error. The motions

for severance of the Ingram ease from that of the re-

maining defendants should have been granted.

IT.

THE INCONSISTENT RULING OF THE COURT

ON CRITICAL DOCUMENTARY EVIDENCE PREJU-

DICED PETITIONER.

The least a defendant should expect in the trial of

any cause is consistency, even in erroneous rulings. In

this ease the court’s rulings seem to be poles apart, de-

pending upon who offered the evidence.

The aceountant’s records reflecting Weber’s explanation

as to the source of certain one thousand dollar bills should

have been allowed in evidence. Rule 803(6) of the Federal’

Rules of Evidence ecodifies the business records exception

to the hearsay rule and provides that a record kept in

the course of a regularly conducted business activity is

admissible if made by a person with knowledge, or if

made from information transmitted by a person with

knowledge, unless the souree of information or the method

or circumstance of preparation indicate lack of trust-

worthiness. The cireumstanees surrounding the prepara-

tion of the accountants’ records (i.e., the tax appeal) cer-

tainly do not indieate a lack of trustworthiness, and since

the information was provided by Weber (a person with

knowledge) prior to commencement of the grand jury’s

investigation, it eannot be coneluded that the source of

the information was untrustworthy at the time the state-

ment was made. Clearly, the record which Weber sought

a

to introduce in evidence was kept in the course of

a regularly conducted business activity, as that term is

defined in the last sentence of Rule 803(6). Yet the Trial

Court held, in sustaining the Government’s objection, that

“the ruling is the same as to the written notations on the

document. They are obviously not made in the ordinary

course of business. They are hearsay. They are self-

serving.” (Tr. 4944) It is absolutely astounding that the

Courts below would hold that the records normally kept

by a Certified Publie Accontant do not satisfy the require-

ments of the business records hearsay exeception—Rule

803(6)—and yet hold that the Benton diaries were ad-

missible as records of a regularly conducted business ac-

tivity. In so ruling, the trial court allowed the CGovern-

ment to use Benton’s diaries to corroborate his testimony

as to what transpired at the April 3, 1971 meeting, and

precluded the defendants from introducing evidence cal-

culated to refute Benton’s testimony and corroborate that

of Appellant Weber.

The Court of Appeals states that the argument that it

was error to exclude the testimony of Weber’s accountant

and the bank statement ‘‘ereates a paradoxical tension

with their arguments that Benton’s desk calendars were

not business records.” The paradoxical tension in this

case was not on petitioner’s doorstep. We ask only that

the Court contrast the treatment of the Rule 803(6) issue

in this respect, with the conclusion that the Benton

diaries were properly admitted under that Rule. The

rulings are wholly inconsistent with one another.

Even more paradoxical is the treatment of both issues

by the Court of Appeals. The accountant’s testimony

and the bank statement are said to be inadmissible because

they “lacked sufficient trustworthiness to permit adiis-

— |

sibility.” (Opinion, p. 49). The Court must have found

the requisite “trustworthiness’’ in the diary entries. The

requisite ‘‘trustworthiness’’ for these entries was Ben-

ton who admittedly doctored the diaries whenever it suited

his purpose. Benton is a confessed thief, embezzler and

liar. He had in the past been fired for dishonesty and

embezzlement, had accepted kickbacks, and has admitted

outright the theft of $337,000 from Ingram. This man

had the consuinate gall to claim that $230,000 of that sum

was stolen from his closet.

We accept the fact that the Government must take its

immunized embezzler and thief with all his limitations

in character, but for the Court of Appeals to label him

and his diaries, and the way they were entered, as sup-

plying the requisite “trustworthiness”, while holding that

the accountant’s testimony and the bank statements are

said to lack sufficient trustworthiness, is difficult to get

down. What is sauce for the goose, ought to be sauce for

the gander.

CONCLUSION

For the reasons set out above, Petitioner respectfully

submits that this petition for writ of certiorari should be

granted.

Respectfully submitted,

WuuiuM J. Harte

Ricuarp J. PRENDERGAST

111 West Washington Street

Chicago, IL 60602

(312) 726-5015

an 12 =

APPENDIX A

STATUTORY PROVISIONS INVOLVED

Title 18, U.S.C., $371.

Conspiracy to commit offense or to defraud United

States.

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

Title 18, U.S.C., $1343

Fraud by wire, radio, or television

Whoever, having devised or intending to device any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, repre-

sentations, or promises, transmits or causes to be trans-

mitted by means of wire, radio, or television communca-

tion in inter-state or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of

executing such scheme or artifice, shall be fined not more

than $1,000.00 or imprisoned not more than five years,

or both. :

Title 18, U.S.C., $1952

Inter-state and foreign travel or transportation in aid

of racketeering enterprises

(a) Whoever travels in inter-state or foreign com-

merce or uses any facility in inter-state or foreign

commerce, including the mail, with intent to —: (3)

—

promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carry-

ing on, of any unlawful activity, and thereafter per-

forms or attempts to perform any of the acts speci-

fied in sub-paragraph [s] ... (3), shall be fined not

more than $10,000.00 or imprisoned for not more

than five years, or both.

(b) As used in this Section “unlawful activity’

means... (2)... bribery... in violation of the

laws of the State in which committed or of the

United States.