Petition — Dark v. United States

——

yo” Supremes Court, US

H FILED |

AUG 9 1979

— MICHAEL RODAK, JR., CLERK |

SUPREME COURT OF THE UNITED STATES

October Term, 1978

a

@9-215

JOEL H. DARK . ° - . : Petitioner

versas

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PHYLLIS L. BATEMAN

WALTER S. CLARK, JR.

415 Stahlman Building

Nashville, Tennessee 37201

Counsel for Petitioner

ALFRED T. ADAMS, JR.

Court Square Building

300 James Robertson Parkway

Nashville, Tennessee 37201

Of Counsel

WESTERFIELO-BONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.

TC ta

TABLE OF CONTENTS

: PAGE

ain OF BRRROTIGS onc ccc cei deceseccdeccene ii

IE, ced b Bu beh es <8 een ne sre ee gate sr 1

Sac nk bw debe nayc?.n00 sey csndeeoe s 2

Questions Presented .............0--eeeeee eee eeees 2

Constitutional and Statutory Provisions Involved.... 3— 4

eG SS ra 5- 6

Reasons for Granting the Writ .................... 6-22

ENT TE CLEL EERE Pore 22

Bs ho oie va Sic ok eee eevee s ceneccasvanese 23-28

Appendix A (Sixth Circuit Court of Appeals Order

NT EGE re ee en 23-26

Appendix B (Sixth Circuit Court of Appeals Order

Denying Petition for Rehearing) ............ 27

Appendix C (Sixth Circuit Court of Appeals Order

Staying Mandate) ........--++e-seseeeeerees 28

TABLE OF AUTHORITIES

Constitutional Provisions:

United States Constitution, Fifth Amendment.... 3, 22

United States Constitution, Sixth Amendment.... 2, 22

Statutes:

Federal Statutes:

SEE ED i Sing Sa he's abiaies ale ewe. 2

EE hn bid ae ke Redo eane 4a 2, 3-4, 16, 22

Cases:

Clancy v. United States, 365 U. S. 312, 81 S. Ct. 645,

DE Gs SO OM Sa iis 6 Go os sks dc becncinas 17

Faretta v. California, 422 U.S. 906, 95 S. Ct. 2525,

ee as 11

Jacobs v. United States, 279 F. 2d 836 (8th Cir.

PE ie bik OA aa a eh oie «anche ka waka k's 17

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U. S. 123, 71S. Ct. 624 (1951) ............ 11

United States v. Brandt, 196 F. 2d 653 (2nd Cir.

EGE DOE EI GTE P le CIAL R IN, Toe BOS An Rea 15

United States v. Burch, 471 F. 2d 1314 (6th Cir.

PE aches LES Wwe a 6 Geo a 5.5 ak tlic Boel ok Bea 15

United States v. Cleveland, 477 F. 2d 310 (7th Cir.

1973) ; after remand 507 F. 2d 731 (7th Cir.1974) 17

United States v. Crane, 499 F. 2d 1385 (6th Cir.

SOUR: hs Gav annie bith den CelentW graye eee 18

United States v. Keig, 320 F. 2d 634 (7th Cir. 1963) 17

United States v. Nazzaro, 472 F. 2d 302 (2nd Cir.

EPO wis 0UA Rog dee eee Sas oe ee eRe TS Che 15

United States v. Nickell, 552 F. 2d 684 (6th Cir.

1977, cert. den. 436 U.S. 904 .............0.0. 16, 17

United States v. Parker, 447 F. 2d 826 (7th Cir.

8 SRO RSTINTS So ROD ere PO: Sipe oe 21

Miscellaneous:

Ne Ae Ne OU ka okt cc wesmied dee ivaledwe cc 16

Conference Committee Notes, House Report No.

PA oF is tau cess be hath edieee cas ga 19

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

JoEL H. Dark - - - “ - Petitioner

Vv.

UNITED STATES OF AMERICA - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Jom H. Dark, respectfully prays

that a Writ of Certiorari issue to review the Order and

Opinion of the United States Court of Appeals for the

Sixth Circuit, entered in this proceeding on May 4,

1979.

OPINIONS BELOW

The Opinion of the Court of Appeals entered on

May 4, 1979 (Appendix A) is reported at 597 F. 2d

1097. A Petition for Rehearing With Suggestion of

Appropriateness of Rehearing En Banc was timely

filed. The Order of the Court of Appeals denying Peti-

tioner’s Petition for Rehearing (Appendix B) was

entered on June 13, 1979,

JURISDICTION

The Order of the Court of Appeals for the Sixth

Circuit (Appendix A) was entered on May 4, 1979; a

timely Petition for Rehearing was denied by Order of

the Court of Appeals for the Sixth Circuit (Appendix

B) on June 13, 1979; and a timely Motion to Stay

Mandate was granted by the Court of Appeals for the

Sixth Circuit (Appendix C) on July 3, 1979. A Mo-

tion for Extension of Time in Which to File Petition

‘for Writ of Certiorari was mailed on July 26, 1979,

which Motion was returned by the Clerk explaining it

was out-of-time. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the District Court committed prejudicial

error in denying Petitioner his right to present his

defense as guaranteed by the Sixth Amendment to

the Constitution of the United States.

2. Whether the Petitioner was denied a fair trial when

the District Court Judge assumed a tripartite role

(consisting of prosecutor, judge and jury) in con-

ducting the trial.

3. Whether the District Court committed prejudicial

error in denying Petitioner’s request for Jencks

Act statements without following statutory pro-

cedures, in violation of 18 U.S.C. §3500.

4. Whether Petitioner was denied a fair trial when

the District Court applied different standards on

3

the same issues to the prosecution and defense and

an erroneous standard on the vital issue of criminal

willfulness.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to the Constitution of the

United States provides in pertinent part as follows:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

The Sixth Amendment to the Constitution of the

United States provides in pertinent part as follows:

In all criminal prosecutions, the accused shall

enjoy the right toa . . . trial, by an impartial

jury . . . 3 to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

Title 18 U.S.C. $3500 provides in pertinent part as

follows:

(b) After a witness called by the United States

has testified on direct examination, the court shall,

on motion of the defendant, order the United

States to produce any statement (as hereinafter

defined) of the witness in the possession of the

United States which relates to the subject matter

as to which the witness has testified. If the entire

contents of any such statement relate to the subject

matter of the testimony of the witness, the court

shall order it to be delivered directly to the defend-

ant for his examination and use.

4

(c) If the United States claims that any state-

ment ordered to be produced under this section

contains matter which does not relate to the sub-

ject matter of the testimony of the witness, the

court shall order the United States to deliver such

statement for the inspection of the court in camera.

Upon such delivery the court shall excise the por-

tions of such statement which do not relate to the

subject matter of the testimony of the witness.

With such material excised, the court shall then

direct delivery of such statement to the defendant

for his use. If, pursuant to such procedure, any

portion of such statement is withheld from the de-

fendant and the defendant objects to such with-

holding, and the trial is continued to an adjudica-

tion of the guilt of the defendant, the entire text of

such statement shall be preserved by the United

States and, in the event the defendant appeals,

shall be made available to the appellate court for

the purpose of determining the correctness of the

ruling of the trial judge. Whenever any statement

is delivered to a defendant pursuant to this sec-

tion, the court in its discretion, upon application of

said defendant, may recess proceedings in the trial

for such time as it may determine to be reason-

ably required for the examination of such state-

ment by said defendant and his preparation for its

use in the trial.

(e) The term ‘‘statement’’, as used in subsec-

tions (b), (¢), and (d) of this section in relation to

any witness called by the United States, means—

(1) a written statement made by said witness

and signed or otherwise adopted or approved by

him;

STATEMENT OF THE CASE

This is a prosecution under 26 U.S.C. §7203. The

case was tried before a jury in the United States Dis-

trict Court for the Middle District of Tennessee, Nash-

ville Division, on May 16 and 17, 1978.

The two-count information charged that the Peti-

tioner willfully failed to make income tax returns on

or before the due dates of individual income tax re-

turns reporting income for the years 1973 and 1974.

Petitioner moved the District Court to require the

United States attorney to file with the clerk the re-

turned subpoenas served upon witnesses for the govern-

ment or, in the alternative, to enjoin the introduction

of evidence from such witnesses. The District Judge

denied this motion immediately prior to commencing

the trial.

After presentation of that evidence allowed by the

District Court, the case was submitted to the jury.

The jury ‘‘deliberated’”’ for three to five minutes and

returned a verdict of guilty on each count. Petitioner

was sentenced to imprisonment for five months on

count one and for one year on count two, with the

sentence as to count two suspended and Petitioner

placed on probation for a period of three years.

Petitioner appealed the conviction to the Court of

Appeals for the Sixth Circuit. On appeal Petitioner

argued that the District Court committed prejudicial

error in denying Petitioner his right to present com-

petent, material evidence in his defense; in conducting

the trial in a biased, prejudicial manner with the trial

judge acting as prosecutor and jury as well as judge;

[aNd t ee eed ate te eaber

ee es I Sa er 8 mn

6

in denying Petitioner’s request for Jencks Act state-

ments with no attempt to follow statutory procedures;

in applying, on the same issues, one standard for the

government and another standard for the defendant;

and in applying an erroneous definition of criminal

willfulness.

Petitioner’s conviction was affirmed in a Per

Curiam Opinion of the Court of Appeals (Appendix

A), whieh recognized merit in some of Petitioner’s

contentions but held the erroneous actions of the trial

court to be harniless. A timely Petition to Rehear with

Suggestion of Appropriateness of Rehearing En Bane

was filed; which Petition was denied (Appendix B).

Petitioner filed a Motion for Stay of Mandate which

was granted on July 3, 1979 (Appendix C).

REASONS FOR GRANTING THE WRIT

1. This Court Now Has the Opportunity to Correct the

Holding of the Court of Appeals for the Sixth Circuit

That Denial of a Criminal Defendant’s Right to Present

His Defense Is Harmless Error and to Clarify for

All Courts the Standards to Be Applied in Deter-

mining Whether Deprivation of Constitutional Rights Is

Prejudicial

Petitioner in this case was charged with two counts

of willful failure to timely file individual income tax

returns. Of the three elements of that offense (suf-

ficient gross receipts to require the filing of a return,

failure to file the return by a specified date, and that

the failure be willful), only the third—willfulness—

was in dispute.

7

The prosecution relied upon evidence of Petitioner’s

background and vocation, the gross receipts of his ac-

counting practice and his teaching salary, and Peti-

tioner’s filing history to prove willfulness. Petitioner

agrees it is proper for a trier of fact to consider cir-

cumstances such as these. Petitioner attempted to

introduce evidence to rebut and explain the evidence

of the prosecution and to show circumstances which

would have indicated the late filing was not criminally

willful. The trial judge refused to allow this evidence

to be adduced.

T’o prove Petitioner’s income, the prosecution intro-

duced a list of receipts on accounts receivable of Peti-

tioner’s accounting practice totalling $36,311.10 in

1973 and $40,779.22 in 1974, and displayed on a black-

board for the judge and jury these total amounts.

Individual clients of Petitioner then testified concern-

ing total amounts they had paid Petitioner for account-

ing work during these years. All these amounts were

added to the blackboard. On cross-examination of

these clients, however, it was proven these amounts

were all included in the first-posted totals and were

thus duplications. Not only was the Petitioner denied

an opportunity to explain the amounts written on the

blackboard, the duplicated amounts were left in sight

of the judge and the jury until closing argument, at

which time counsel for the Petitioner insisted these

amounts be removed from the blackboard.

Petitioner testified and attempted to prove the

amount of his income. The trial judge allowed Peti-

tioner to introduce into evidence his partnership tax

)

returns and his individual income tax returns, but

neither the judge nor the jury examined them. When

Petitioner was asked the first question concerning his

income from the partnership, the trial judge inter-

jected his own objection and ruled that evidence in-

admissible, although earlier in the trial, the trial judge

had given the government wide latitude in introducing

evidence concerning the amount of Petitioner’s income.

Petitioner contends that that evidence is admis-

sible and is vital. Had the prosecution been using this

evidence only to show that Petitioner met the require-

ments for filing a tax return (testified to as being

$750.00 for each year) only one witness would have

been necessary. Instead, a virtual parade of witnesses

testified to quite large amounts of money paid to Peti-

tioner—ali of which were duplications by virtue of

having been included in the total first posted. Peti-

tioner is well aware that a large income with large

resulting tax liability is the most frequent circum-

stance relied upon by the prosecution to prove and by

the courts to uphold a finding of criminal wilifulness.

Petitioner is also aware that his share of the account-

ing partnership gross receipts is the proper factor to

be considered in determining a requirement to file.

However, because a finding of willfulness is necessary

for a failure to timely file a tax return to be criminal

the difference between gross receipts and income is

relevant and material for the trier of fact to be enabled

to give that circumstance a reasoned and proper con-

sideration, especially since that difference is not

commonly appreciated by the vast numbers of the

rr ee a ee

9

populace who work for wages which are annually re-

ported to them by their employer on a form W-2.

While the prosecution was allowed full authority to

present large—and misleading—figures to the judge

and jury, Petitioner was not allowed to present the

facts concerning his income. The single concession

made was allowing Petitioner to introduce his tax re-

turns—but these were not examined by anyone. The

vital importance of this issue to Petitioner is revealed

by the trial judge who, during a bench conference with

counsel, stated: ‘‘He didn’t file them because he

wanted to make money off of somebody else’”’ (TR 207),

and again, ‘‘The reason is that he wanted to make

money . . .’’ (TR 208), and again, “‘. . . what-

ever number of hours he spent working day and night

to make money .’ (TR 208). At least one of

these instances was audible to the jury. The trial

judge then cross-examined the Petitioner, saying, “. . .

you elected to spend your time making money off of

somebody else . . . is that not correct?”’ (TR 210).

(Petitioner denied the correctness of that statement. )

When the prejudicial effect of such one-sided evidence

is so obvious on that person in the courtroom most

trained and experienced in judicial proceedings, one

cannot sanely doubt the prejudiciai effect on the jury.

Petitioner continued in his defense to try to put

into evidence the circumstances which resulted in the

late filing of his tax returns. The trial judge reluc-

tantly allowed Petitioner to introduce his time records

into evidence and to testify to the extraordinarily large

amounts of time expended attempting to maintain those

10

books and records-which his background as an auditor

and comptroller taught him to be necessary and proper

for a complete and correct accounting to be made to

his clients, his government, and himself.

The Court’s attitude towards all of Petitioner’s

evidence is revealed (TR 197):

By the Court: . . . I don’t think this is even

material, but they claim that’s their defense, and

if they ean eonvince the jury of it, I guess they ’ve

got a right to do it, but Ithinkit’s . ..

By Mr. Clark: We think it’s material on the

question of willfulness.

By the Court: I don’t think it is admissible

on the basis of willfulness. I think the whole—

now, you may convince the jury, which is what

you’re trying to do, but I think—well, anyhow, go

On.

However, when Petitioner attempted to introduce

some of his records, the trial judge said, ‘‘I sustain the

objection . . .” (None had been made.) And he

refused to allow further presentation of Petitioner’s

records.

The Court of Appeals for the Sixth Circuit did not

comment on the exclusion of Petitioner’s evidence con-

cerning income, but agreed that the trial judge’s re-

fusal to admit evidence concerning records was error.

That Court concluded that, because ‘‘of the overwhelm-

ing evidence of [Petitioner’s] guilt’’ the error was

harmless. Petitioner contends that any evidence not

allowed to be explained or rebutted will be ‘‘over-

whelming”’ in the hands of a skilled advocate. That

11

Court is thereby holding that the circumstances pre-

sented by the prosecution not only are probative of the

possible existence of criminal willfulness but are con-

clusive and tirrebuttable evidence of that state of mind,

placing the administration of criminal justice today in

harmony with that which prevailed in England when

Sir Walter Raleigh could only argue that the prosecu-

tion had not completely proved its case.

This Honorable Court has guarded and defended

the right of a person to be fully heard, even in non-

criminal matters. Mr. Justice Frankfurter, con-

curring in. Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U. S. 123, 71 S. Ct. 624.(1951), wrote:

This Court is not alone in recognizing that the

right to be heard before being condemned to'suffer

grievous loss of any kind, even though it. may not

involve the stigma and hardships of a criminal

conviction, is a principle basic to our society.

Much more recently, this Court decided Faretta v.

California, 422 U. S. 906; 95 S. Ct. 2525, 45 L. Ed. 2d

562 (1975). There Mr. Justice Stewart, writing for

the majority, stated:

The rights to notice, confrontation, and compulsory

process, when taken together guarantee that a

criminal charge may be answered in a manner now

considered fundamental to the fair administration

of American justice—through the calling and: in»

terrogation of favorable witnesses, the cross-ex-

amination of adverse witnesses, and the orderly

introduction of evidence. In short, the [Sixth]

Amendment consitutionalizes the right in an ad-

12

versary criminal tria! to make a defense as we

know it.

In his dissent, Mr. Chief Justice Burger, succinctly

stated :

In short, both the ‘‘spirit and the logic’’ of the

Sixth Amendment are that every person accused

of crime shall receive the fullest possible defense

.”? (Emphasis supplied.)

2. This Court Now Has the Opportunity to Refine the

Guidelines for the Trial Judiciary of the Country in

Fulfilling Their Duty to Properly Conduct Fair and

Impartial Trials.

This Honorable Court has rarely spoken on the sub-

ject of the necessity of the trial judge’s maintaining a

judicial role in the conduct of a trial and his duty to

guide and control the proceedings in such a manner as

to assure the parties a fair and impartial trial. The

Courts of Appeals for the various circuits, however,

have been confronted with such questions many times

and have dealt with them in a myriad of decisions.

The trial judge, in the conduct of Petitioner’s trial,

abandoned his proper role as impartial judge and

moderator of the proceedings taking place before him

and assumed the role of prosecutor. Apparently hav-

ing been convinced by the prosecution’s evidence in

chief of the Petitioner’s guilt of the charged offense,

he constantly conveyed to the jury this belief through

the method and manner of his participation in the trial.

The second witness for the Petitioner was a former

employee. From the beginning of his testimony the

13

trial judge impatiently interjected himself into the

trial, refusing to allow Petitioner’s counsel to proceed

with the examination of the witness in an orderly

fashion. When the witness was first asked about his

time records, the trial judge interrupted with ‘‘He

doesn’t know what you’re asking him yet. That’s

what he wants to know; ask him first—what do you

want to ask him?’’ (TR 154-155) When meaningful

testimony could not be elicited from the witness with-

out the witness having access to his time records, the

trial judge impatiently ordered Petitioner’s counsel to

‘*Pass them [the time recoras] up to him. Let’s get

some specific information around here!’’ (TR 157)

Throughout the testimony offered on Petitioner’s

behalf, the trial judge ‘‘sustained objections’? which

had not been made, assumed the role of interrogator,

and admonished Petitioner’s counsel with ‘‘ All right—

go on to something else’’ (TR 193) and similar state-

ments indicating his disinterest in Petitioner’s evi-

dence. During the testimony of Petitioner, the trial

judge evidenced, as detailed above, the conclusiveness

(to him) of the prosecution’s evidence of Petitioner’s

income. Significantly, even upon the sentencing pro-

ceeding, the trial judge stated:

. and the only reason he gave for not filing

his returns was that he was more interested in

making money than he was in complying with the

WW ss

14

and

and for a lawyer [Petitioner had, between the

years here involved and the trial of the case, com-

pleted his legal education and passed the Tennessee

bar examination] to get up here and say that, it

shocked me to the very roots of my being :

but to have a lawyer get up here and say that he

is more interested in making money than he was

in complying with the law is just absolutely absurd

and unheard of.

No such testimony can be found in the record of the

trial of this cause.

Again, the Court of Appeals for the Sixth Circuit

considered the isolated questioning of Petitioner on

cross-examination by the trial judge and found it to

be ‘‘dangerously close’’ to violating the principles of

judicial conduct. However, that Court failed to con-

sider that the incident was only one of many and the

culmination of the obvious attitude and actions of the

trial judge in his refusal to consider that evidence

which was introduced and to allow the introduction for

consideration of vital evidence on Petitioner’s behalf.

In Petitioner’s case the trial judge’s actions were not

a small part of a long, arduous trial, the importance of

which would be greatly diminished as the trial pro-

gressed, but permeated the entirety of Petitioner’s

attempt to present his defense. The judge’s constant

participation in the Petitioner’s case in chief chal-

lenged and denied Petitioner the opportunity to pre-

sent his defense in an orderly, proper manner, and

attacked the credibility of the testimony of Petitioner

eee Co

15

and his witnesses in a case in which the only issue to be

decided was whether Petitioner’s admitted action (or

non-action) was criminally willful.

While many reported cases approve an amount of

judicial participation in examination of witnesses for

purposes of clarification (for example, United States

v. Burch, 471 F. 2d 1314 [6th Cir. 1974]); a judge’s

participation during trial (whether in the form of in-

terrogating witnesses, addressing counsel, or other con-

duct) must never reach the point at which it appears

clear to the jury that the court believes the accused is

guilty. United States v. Nazzaro, 472 F. 2d 302 (2nd

Cir. 1973). Particularly analogous also is United

States v. Brandt, 196 F. 2d 653 (2nd Cir., 1952).

3. This Court Now Has An Opportunity to Clarify the

Identity of Material Subject to Disclosure to a Defendant

Under the Jencks Act, 18 U.S.C. §3500, and the Pro-

cedural Requirements Placed Upon the District Court

Proceedings By That Act.

The last witness to testify for the prosecution in

its case in chief was Internal Revenue Service Special

Agent Larry Hollingsworth. Special Agent Hollings-

worth testified at some length concerning his investiga-

tion of the Petitioner, that he had interviewed ‘‘all the

clients of Mr. Dark that I was able to locate’? (TR

145) ; and at some length concerning transactions with

Premium Acceptance Corporation. Following his

testimony counsel for Petitioner requested Jencks Act

material:

By Mr. Clark: May it please the Court, we

respectfully ask under the Jencks Act for Mr.

16

Hollingsworth’s report or statement so that we

may review that before cross-examining him. (TR

145)

Upon the representation of the prosecuting attorney

that statements had been provided, and defense coun-

sel’s explanation that he had received copies of inter-

view reports of conversations with the Petitioner under

Rule 16 relating to pre-trial discovery, the trial judge

continued :

By the Court: Have you given him everything

he’s testified about, Mr. Windsor?

By Mr. Windsor: Yes, Your Honor.

By the Court: Ready, Mr. Clark?

The trial court thus foreclosed Petitioner’s statu-

tory right to discover Jencks Act statements of the

Special Agent in a manner presaging his attitude

towards Petitioner’s attempts to present his defense.

The Court of Appeals for the Sixth Circuit held

that ‘‘ Agent Hollingsworth’s written case reports are

not his ‘statements’ under 18 U.S.C. $3500(e), and the

trial court was under no obligation to examine the file

in camera, since there was ‘no basis for belief that a

Jencks Act ‘‘statement’’ existed other than those al-

ready furnished defense counsel.’ United States v.

Nickell, 552 F. 2d 684, 687-90 (6th Cir. 1977), cert.

denied, 436 U. S. 904 (1978).’’ There are so many

judicial decisions to the contrary that 5 A L R 3rd 763,

§5 states, ‘‘ All papers written by a government witness

himself or his amanuensis which are in the possession

of the government are statements within the meaning

17

of clause (1).’’ Non-production of revenue agents’

memoranda brought reversal by this Honorable Court

in Clancy v. United States, 365 U. S. 312, 81 8. Ct. 645,

5 L. Ed. 2d 574 (1961). Numerous tax cases considered

by Courts of Appeals of other circuits have considered

the producibility of such reports and the procedures to

be followed in the District Courts. For example, the

Eighth Cireuit held in Jacobs vy. United States, 279

F. 2d 836 (1960) that denial of defendant’s motion to

examine all reports and statements made by such agents

to the government was error. The Seventh Circuit, in

United States v. Keig, 320 F. 2d 634 (1963), held that

once the defendant had raised an issue of Jencks Act

statements, the District Court was required to make

its own determination of producibility after examina-

tion of the file instead of relying on representations of

government counsel. That circuit reiterated in United

States v. Cleveland, 477 F. 2d 310 (1973) that the report

vf an Internal Revenue Service Special Agent was

producible as a statement under the Jencks Act, re-

manding the case for further proceedings. On appeal

from the District Court’s finding that Cleveland had

not been prejudiced by non-production, the circuit

court, in 507 F. 2d 731 (1974) reversed the conviction.

Petitioner thus contends that the holding in his case is

in conflict with the decisions of this Honorable Court

and with decisions of other circuits.

Additionally, Petitioner respectfully submits that

the decision of the Court of Appeals for the Sixth Cir-

cuit, U. S. v. Nickell, supra, cited as authority for the

decision in this case, represents a dangerous departure

18

from the most basic principles of criminal justice em-

bodied in our Constitution and tradition. The major-

ity opinion in that case admits, ‘‘Routine judicial

screening, however, would pose no such problem [re-

vealing unrelated confidential government informa-

tion] and might on occasion contribute to a more just

result.”” 552 F. 2d at 689. (Emphasis supplied.) The

opinion continues, however, to hold that such screening

would place too great a burden on trial judges. Peti-

tioner submits that the principles upon which this

country is based requires a re-affirmation of the suc-

cinct statement of the late Judge William Miller, writ-

ing for the same Court in Umted States v. Crane, 499

F. 2d 1385, at 1388:

Yet justice, not judicial economy, is the first

principle of our legal system. And under no cir-

cumstances may well-intentioned efforts to con-

serve judicial time be permitted to prejudice the

fundamental right of a criminal defendant to a

fair trial.

4. This Court Has An Opportunity to Supervise the Ad-

ministration of Criminal Justice in the Trial Courts of

the Land By Refusing to Tolerate: the Application of

Different Standards to Actions and Evidence Concern-

ing the Same Issues for Prosecution and Defense and

Has An Opportunity to Clarify for All Courts the Defini-

tion of Criminal Willfulness.

Prior to the trial of Petitioner, subpoenas issued

under the seal of the court were served upon witnesses

for the defense and prosecution. Service of these sub-

poenas subjected the recipients to an Order of the

19

issuing court—i.e. they had been ordered to appear and

testify and were subject to the power and process of

the court should they refuse to obey. The returned

subpoenas issued on behalf of the Petitioner were

properly filed in the public court record. Those which

had been issued on behalf of the prosecution, however,

were, by order of the government attorney, withheld

from. the public record and given to the United States

Attorney. Petitioner moved the District Court to

order the filing of these orders (subpoenas) in the

public record, or, in the alternative, to enjoin the testi-

mony at trial of these witnesses. This motion was

denied immediately prior to trial. The argument relied

upon to support the denial of the motion is the estab-

lished view that a criminal defendant is not entitled to

the prosecution’s ‘‘witness list.’’ Petitioner avers that

this statement is not responsive to Petitioner’s con-

tention. Petitioner believes that returned subpoenas,

carrying court sanctions for disobedience, are orders

of the issuing court and therefore properly part of the

public record. Should either party to a dispute wish to

keep secret the identity of his witnesses, he may either

make arrangements for the proposed witness to be

available without subpoena or may present to a judge

the compelling reasons requiring secrecy or sealing of

the court orders. The Conference Committee Notes

regarding Rule 16, Federal Rules of Criminal Pro-

eedure, state, ‘‘. . . it is not in the interest of the

effective administration of criminal justice to require

that the government or the defendant be forced to

reveal the names and addresses of its witnesses before

20

trial . . .’? (Emphasis supplied.) Petitioner be-

lieves that the dual standard here applied is insup-

portable. Petitioner contends that all court orders are

public records and should be treated as such. If, how-

ever, subpoenas are for some reason exempt from pub-

lic view, then all subpoenas should be exempt. The

double standard is not supportable.

The standard to be applied to determine the

relevance and materiality of proffered evidence dif-

fered for the prosecution and the Petitioner. The

prosecution was allowed to present in its case in chief

gross receipts of Petitioner far in excess of the $750

testified to as the amount which required the filing of

a tax return. Evidence of income in excess of $750 is

relevant, then, only as a circumstance showing will-

fulness. After having given the government wide

latitude in introducing evidence concerning amounts

of income, the trial judge changed the standard of

relevance and refused, without objection from the

government, to admit Petitioner’s relevant evidence

on the same issue.

The question of the existence of an accounting part-

nership, first introduced in the prosecution’s case in

chief, became of vital importance in that it bore directly

on the credibility of Petitioner. Petitioner testified

directly that there was a partnership (TR 186). The

prosecution, in rebuttal, called William Jordan who

testified that he had never been in an accounting or

CPA partnership with Petitioner (TR 254). On cross-

examination, however, Mr. Jordan testified: (1) that

he and Petitioner agreed to do accounting work

together, splitting any resulting income or loss between

21

them, and (2) that they actually did that (TR 255).

This testimony established, as a matter of Tennessee

law (the Uniform Partnership Act) the existence of

the accounting partnership. The trial judge allowed

this testimony, instructing the jury that these facts

bore ‘‘only’’ on the credibility of Petitioner (TR 260),

but in his charge to the jury neglected to charge that

as a matter of law the facts testified to by both wit-

nesses legally established the existence of the partner-

ship. On. such a point of law, proper and complete

instructions must be given by the trial judge without

request, and the omission was, therefore, plain error

affecting substantial rights of Petitioner. The trial

judge thus found the evidence to be ‘‘relevant enough”’

to admit for consideration, but not ‘relevant enough’?

to properly and completely explain in his charge.

Petitioner thus would urge this Court to affirm the

principle enunciated by the Court of Appeals for the

Seventh Circuit in U. S. v. Parker, 447 F. 2d 826

(1971), that on any given issue it is imperative that the

trial court apply the same standard to both parties.

The definition of willfulness as used in the criminal

tax statutes has caused the courts great difficulty. Its

importance lies in the fact that this element is that

which distinguishes a taxpayer’s civil liability for

failure to timely file a tax return from a criminal

liability for that action (or non-action). During argu-

ment of Petitioner’s case in the Court of Appeals for

the Sixth Circuit, a judge asked, ‘‘He knew he should

file and he didn’t do it—that’s willful, isn’t it?’’ Peti-

tioner believes that statement reveals the erroneous

standard utilized in his case and indicates the eon-

22

fusion surrounding the term necessitating clarification

from this Court.

CONCLUSION

The decision of the Court of Appeals for the Sixth

Circuit recognized error of the District Court in deny-

ing Petitioner his Sixth Amendment right to present

his defense, but failed to perceive that very denial as

the cause of the evidence of guilt being ‘‘overwhelm-

ing’”’—because unrebutted—which thus necessarily af-

fected the substantial rights of the Petitioner. Fur-

thermore, the assumption by the District Court of the

functions of prosecutor and trier of fact, the non-com-

pliance of the trial judge with clear statutory pro-

cedures encompassed in 18 U.S.C. §3500, and the ap-

plication by the trial judge of one standard on the

government and another standard on the Petitioner, all

resulted in fundameutal injustice to the Petitioner

denying him his Fifth Amendment entitlement to due

process of law. This Court alone can correct that

fundamental injustice. The present Petition for Writ

of Certiorari should, therefore, be granted.

Respectfully submitted,

PuHyYLLis L. BATEMAN

WALTER S. CLARK, JR.

415 Stahlman Building

Nashville, Tennessee 37201

Of Counsel: Counsel for Petitioner

Atrrep T. ADAMS, JR.

Court Square Building

300 James Robertson Parkway

Nashville, Tennessee 37201

APPENDIX

23

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5237

Unirep States or AMERICA .

Plaintif'-Appellee | OX A®Psat from the

J United States Dis-

‘ . trict Court for the

Middle District of

Jorn H. Darx

Defendant-Appellant Tennessee

Decided and Filed May 4, 1979.

Before: Encen and Mesrrrr, Circuit Judges; Psck,,

Senior Circuit Judge.

Pzr Cunmm. Appellant Dark was convicted of two

counts of willfully failing to file income tax returns, in

violation of 26 U.S.C. § 7203 (1976), after a jury trial, in

the United States District Court for the Middle District of

Tennessee. He was sentenced to five months’ imprison-

ment on count one and to one year’s imprisonment on count

two, the latter sentence suspended in favor of three years’

probation,

The government’s evidence was plainly sufficient to sup-

port the verdict. During 1973 and, 1974, Dark was self-

employed as a certified public accountant, he taught ele-

mentary accounting at Tennessee State University in Nash-

ville, and he attended law school at night. His total re-

ceipts on accounts receivable from his accounting practice

amounted to $36,331.10 in. 1973 and $40,779.22 in 1974. In

1973 he received a-salary of $5,420 from Tennessee State.

24

He failed to file income tax returns for either year, despite

the fact that he had been specifically warned by the Internal

Revenue Service of his obligation under the law to file

timely returns. Dark had failed to file his returns for the

years 1967-1971 until March 1973, when he learned that he

was under investigation by the IRS. At that time, Dark

assured the IRS that he would comply with all filing re-

quirements in the future.

Dark’s defense was that his failure to file had not been

“willful.” He testified that his financial books and records

were simply “not in shape to file a tax return” on the

respective due dates, principally because of the complicated

and cumbersome nature of his personal accounting system,

and that the pressures of his accounting practice and legal

studies had distracted him from properly maintaining his

books. The jury deliberated only five minutes before re-

turning its verdict of guilty on both counts.

Dark raises numerous claims of error on appeal, most

of which are wholly without merit. He contends that the

testimony of certain witnesses subpoenaed by the govern-

ment should have been excluded at trial because the Assist-

ant United States Attorney had instructed the Marshal not

to place the returned subpoenas in the case file in the dis-

trict court clerk’s office, thereby preventing defense counsel

from looking at the case file to find out who was going to

testify for the government. The short answer to this claim

is that defense counsel was not entitled to know, in advance

of trial, who was going to testify for the government.

United States v. Conder, 423 F. 2d 904, 910 (6th Cir.), cert.

denied, 400 U. S. 958 (1970).

Dark contends that the district judge committed rever-

sible error during jury selection by telling the panel, in the

course of explaining the presumption of innocence and

burden of proof in a criminal case, that “Neither side has

the edge.” Read in context, the remark was apparently

calculated to impress upon the prospective jurors that both

25

parties in a criminal case come before the court with equal

dignity and that neither should be arbitrarily favored out

of prejudice for or against the government or defendants

as a class. While perhaps better left unsaid, the remark

could not have confused the jury, especially in light of the

district judge’s more than adequate explanation of the de-

fendant’s presumption of innocence and the government’s

heavy burden of proof in his other comments to the panel

during jury selection and in his instructions at the close of

the trial.

Dark also argues that the trial judge erred in refusing

to order the government to turn over to defense counsel, as

“statements” under the Jencks Act, the contents of IRS

Special Agent Hollingsworth’s case file after Hollings-

worth’s testimony at trial, without at least inspecting the

file in camera to determine whether it contained any Jencks

material. Agent Hollingsworth’s written case reports are

not his “statements” under 18 U.S.C. § 3500(e), and the

trial court was under no obligation to examine the file in

camera, since there was “no basis for belief that a Jencks

Act ‘statement’ existed other than those already furnished

defense counsel.” United States v. Nickell, 552 F. 2d 684,

687-90 (6th Cir. 1977), cert. denied, 436 U. S. 904 (1978).

Dark’s two remaining claims of error are more trouble-

some. Both involve actions of the trial court, which, Dark

argues, unfairly hampered the presentation of his defense.

Dark sought to introduce in evidence some of his per-

sonal financial records in an effort to corroborate his claim

that his personal record-keeping system was so complicated

that it would have been difficult, if not impossible, to pre-

pare accurate tax returns by the dates required by law.

The trial judge ruled that the records were irrelevant and

refused to admit them. We think this was error. The

records were plainly relevant to Dark’s defense, lame

though it might have been.

96.

The other incident oceurred during the prosecutor’s

cross-examination of Dark. Dark testified, “I do not think

I could have done [the 1973 and 1974 tax returns] under

the circumstances under which I was laboring. On the due

date my books were not in shape to file a tax return.” At

that point, the trial judge interrupted to ask the following

question: “Well, the reason your books were not in shape

is that you elected to spend time making money off some-

body else and not keep your own books up, is that not

correct ?”

This Court has only recently had occasion to observe

that “potentie] prejudice lurks behind every intrusion into

a trial made by a presiding judge” and that, when such

intrusion occurs, the judge must “sedulously avoid all ap-

pearances of advocacy as to those questions which are ulti-

mately to be submitted to the jury.” United States v. Hick-

man, Nos. 78-5148-49 (6th Cir. February 15, 1979), slip op.

at 3. The question propounded by the trial judge here

came dangerously close to violating his principle, for it

could have created the impression in the minds of the jurors

that the trial judge was unsympathetic to Dark’s defense,

a matter which was for the jury, and the jury alone, to

evaluate.

In light of the overwhelming evidence of Dark’s guilt,

however, we do not believe that either the erroneous ex-

clusion of Dark’s financial reeords or the trial judge’s

isolated intrusion into the cross-examination of Dark af-

fected Dark’s substantial rights. Rule 52, Fep. R. Crm. P.

Accordingly, it is Orperep that the judgment of convic-

tion be, and hereby is, ArrmMeED.

ENTERED BY ORDER OF THE CouRT

Clerk

27

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5237

Unirep States or AMERICA - - Plawmtiff-Appellee

Jorn H. Dank - - - = ~- ~~ Defendant-Appellant

ORDER—Filed June 13, 1979

Before: Enos and Merritt, Circuit Judges; Peck, Senior

Cireuit Judge.

No judge of the Court having moved for rehearing

en banc, the petition for rehearing has been referred to the

hearing panel for disposition.

Upon consideration, it is OrpERED that the petition for

rehearing be and hereby is denied.

ENTERED BY ORDER OF THE CouRT

(s) John P. Hehman, Clerk

|

28

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5237

Untrep States or AMERICA - - Plaintiff-A ppellee

Vv.

Jor, H. Dark - - - - Defendant-A ppellant

ORDER STAYING MANDATE—Filed July 3, 1979

OrpeRED, That motion to stay mandate herein pending

application to the Supreme Court for writ of certiorari is

hereby granted and the mandate is stayed for thirty days

from this date; provided that, if within such thirty days,

the applicant shall file with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the

certiorari petition, record, and brief have been filed, the

stay shall continue until the final disposition of the case by

the Supreme Court. Unless this condition is complied with

within such thirty days or any extension thereof made by

the Court or any judge thereof, or if the condition is com-

plied with, then upon the filing of copy of an order denying

the writ applied for, the mandate shall issue.

ENTERED BY ORDER OF THE CouURT

(s) John P. Hehman, Clerk