# Petition — McPartlin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0225%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 833 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0225%3A1. Public record. Not legal advice.