Petition — Sorkin v. United States

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October Term, 1979

No. ‘S 9 pe i] 0 ] v4

CHARLES SORKIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

te

2996 LUTZ APPELLATE PRINTERS, INC.

law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494. (215) 563-5587 (202) 783-7288

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TABLE OF CONTENTS

Ba RR SR RS SPR a oO a ge SR OR a a ere

Crees Ub nae pera ends wage der hnwnerdaawee

pays ARI a a AR a a ER CN) ee Ps

Constitutional and Statutory Provisions Involved .........

Pe ee ven icin ccsasecsesLosncechswanwesws

Reasons for Granting the Writ:

I.

The prosecutor tried this case “by ambush” since at

trial a substantial amount of evidence and certain

key witnesses were utilized, although no hint thereof

was contained in the Government’s main and

supplemental bills of particulars. Since a bill of

particulars is to enable an accused to prepare for

trial and to prevent surprise, the Government should

have been strictly limited to proving what it had set

forth in those particulars. Unfortunately, the court

permitted the prosecution to go well beyond the

parameters of its particulars. ...../...cccscccees

The court erred by permitting the testimony of

Andrew Sauer, despite the fact that it was virtually

irrelevant to the charges herein and completely

prejudicial to the rights of the defendants. Sauer, a

former bank official was permitted to relate how he

authorized the converting of cash into checks and

checks into cash, but without any nexus to this

Ill.

IV.

li

Contents

indictment whatsoever. It is beyond cavil that the

prosecution used Sauer to interject prejudicial and

irrelevant matters which could only confuse the jury. .

As another adjunct of the tactic of the Government

of using “trial by ambush”, the prosecution called

four witnesses who were so-called “no-show”

employees whose names were never mentioned in the

bill of particulars. Sorkin had nothing whatsoever to

do with any of the “no-shows” since he did not hire

them and had no say in their hiring. Carlough had,

in fact, given tasks to these employees, with the

exception of Kenneth Caiazzo, who, as we indicated

previously, was unknown to either defendant, but

was hired by John Cammerato. ............+05-

The defendant-appellant Sorkin was_ severely

prejudiced by a breach of understanding and by a

“sandbagging” tactic used by the prosecution in

connection with a plea bargain that was being

negotiated toward the end of trial on behalf of

Sorkin. The Government led the attorney for Sorkin,

and Sorkin himself, down a “primrose path”,

thinking that they had a plea to a misdemeanor

settled when, in fact, it never took place. On account

of this belief, however, defense counse! for Sorkin

did not adequately prepare for summation, and a

substantial portion of Sorkin’s own testimony was

motivated by his belief that it was a meaningless

exercise in futility since he was going to plead guilty

IN 5 ah ove Che Svcn oe vegas bv seks eRe Fase

This Court should grant certiorari and should then

reverse the conviction in order to deter future

Page

18

28

30

iii

Contents

Page

conduct on the part of Government officials as

co eR gD Aes Speer ee 34

Bee eee Pere OY ORT Ferre Pea e » aria 36

TABLE OF CITATIONS

Cases Cited:

peetger ¥. Ainiied: Saates, 200 US. TB peeks vidi ha dian vis dims 3

ENN; PEIN PTS AD 6 ki dock vk g ale Ub Ka ek oad 34

Bryan v. United States, 175 F. 2d 223 (Sth Cir. 1949) ...... 15

Coopedge v. United States, 369 U.S. 438 ................. 9, 33

Cooper v. United States, __ F.2d W—W~, decided 3/5/79,

Te Cit... Dotnet Me. FISEIOe ccsk iv vaneavandecscawts 32

Jackson v. Denno, 378 U.S. 368 2... cece eee ee ee eee 8, 13, 35

Lee v. Florida, 392 U.S. 378 ........0.00008 vases 3, 34, 35

Lutz v.-C.I.R., _— F. 2d ——_ (6th Cir. 2/22/79, Docket No.

RAED ip ve hice eee min hk os aD RE Ro thas bs 33

McNabo vy. United States, 318 U.S. 332)... csc seies ce cece 10, 34

Mesarosh v. United States, 352 U.S. 1 ........... A. hue ae, oe

reome v. Forlano, 19 App. Div: 20 365 0.05 uc ccccseuces 33

People v. Granello, 18 N.Y. 2d 833 ....... sees eee cece eeee 33

iv

Contents

People v. Vignera, 29 App. Div. 2d 657 .........ecceceees 33

Rabinowitz v. Borish, 43 F. Supp. 413 (D.C. N.J. 1942) .... 15

Santobello v. New York, 404 U.S. 257 (1971) ......... 32; 33

Shelton v. United States, 246 F. 2d 571 (Sth Cir.) .......... 33

soereda: v. Une Seates, 27 Ue io oc caccccncecesks 33

United States v. Adams Express Co., 119 Fed. 240 (D.C.

Ps oc vb 6 ko naa be eo wok Deca ee eae 15

United States v. Baum, 482 F. 2d 1325 (2 Cir. 1973) .... 3, 11, 28

United States v. Benedetto, 571 F. 2d 1246 (2 Cir. 1978)

PLS PARR SELMER EOC ee eA COLEUS EE ERs bi eed 18

United States v. Carter, 454 F.2d 426 ..............cccee 32

United States v. Crisona, 271 F. Supp. 150 (S.D.N.Y. 1967)

panes ceUSEESELERTSD ART ORKS On ow p aeRO ARES accesses ae

United States v. Eissner, 206 F. Supp. 103 (D.C. N.Y. 1962)

otedin heads ¢0.080 DEPREESE ENS BVP ORE ERA EeoO 15, 16, 17

United States v. Glasser, 116 F. 2d 690 (7th Cir. 1940), re-

versed in part and affirmed in part, 315 U.S. 60 (1942)

y

Contents

United States v. King, 49 F.R.D. 51 (D.C.N.Y. 1970) ...... 15

United States v. Lebron, 222 F. 2d 531 (2d Cir.), cert. de-

RE i IS So i a ois ce ddhb eke ete a ale b00 15

United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977). 15

United States v. Murray, 297 F. 2d 812 (2d Cir. 1962), cert.

ee eee A eK owe eens ewe es 15

-United States v. Neff, 212 F. 2d 297 (3d Cir. 1954) ........ 14

United States v. O'Connor, 580 F. 2d 38 (2 Cir. 1978) ...... 18

United States v. Salazar, 485 F. 2d 1272 (2d Cir. 1973),

eet. US Bic POS nko Sak ee wk be Papeee need dace 15

United States v. Slaughter, 89 F. Supp. 205 (D.C. D.C.

ea i a ea UE aT ky ies Cie Oh da 8s a 15

United States v. Yarus, 198 F. Supp. 425 (D.C. N.Y. 1961) . 15

Statutes Cited:

Be Re MES, rice sda 04d cAN bomb d 48 059,0 op een ee eR bea

28 U.S.C. §1254(1) Sa poo RRS ae

United States Constitution Cited:

eo ee See rea ee re 2, 3, @, 7

Rule Cited:

Federal Rules of Criminal Procedure, Rule 7(f) ............ 3,4

vi

Contents

- Benen

Other Authorities Cited:

P. Westen and D. Westen, A Constitutional Law of Rem-

edies for Broken Plea Bargains, 66 Calif. L. Rev. 471

a ee eto cieleacé ees

| Wright Federal Practice and Procedure — Criminal Sec-

TR OEE Pa toa is Sesh uee etek s vc we beens ve

8 Moore’s Federal Practice, 2nd Edition, Par. 7:61,

ES rete ewe ee Be CONE Us de kuin eek cad Ue eeu ce

APPENDIX

Opinion and Order of the United States Court of Appeals

SO UNUNNINUET 20, OTD ibe odccccdcactecsvecests

Order Denying Petition For Rehearing Dated November

UE Sh biee Chic pakas Cob habia bees «Suetite he seaess

Page

32

15

la

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In The

Supreme Court of the United States

re

October Term, 1979

No.

CHARLES SORKIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

EER Str rere mer martes Om ome

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

STATEMENT

Petitioner Charles Sorkin petitions this Court for a writ of

certiorari to the United States Court of Appeals for the Second

Circuit, to review its affirmance of a judgment of the United

States District Court for the Eastern District of New York,

convicting the petitioner of violating 26 U.S.C. §7206(2) [aiding

and abetting the filing by Mutual Advancement Corp. (MAC) of

false and fraudulent federal corporate income tax returns for the

years 1973 and 1974], after trial before Honorable Henry J.

Bramwell and a jury.

2

A motion for a rehearing was denied on November 28,

1979, and the judgment itself was affirmed on September 21,

1979.

OPINION BELOW

The memorandum opinion of the United States Court of

Appeals, Second Circuit is reproduced as an appendix to this

petition.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). The court below rendered its initial decision affirming

the judgment of conviction on September 21, 1979. A petition

for rehearing was then considered by the United States Court of

Appeals for the Second Circuit, but was ultimately denied on the

28th of November 1979. (The orders thereon are reproduced in

the appendix, infra.)

QUESTIONS PRESENTED

1. Whether in a criminal trial, the United States Attorney is

limited to proving matters within the purview of the bill of

particulars which it has furnished to the defendant?

2. Whether petitioner was denied a fair trial when the

prosecution failed to update its bill of particulars upon learning

that he would call certain witnesses and produce certain exhibits

which had never previously been revealed in the original bill of

particulars, and consequently took the petitioner by complete

surprise at trial? (Fifth Amendment, United States Constitution

- Due Process).

(A) The court below held that this was improper on

the part of the Government and we ask this Court to determine

whether such impropriety should be punished as a cause for

reversal of the conviction?

RR RT ges STEN ee

3

3. Whether the evidence adduced by the prosecution was

sufficient as a matter of law to have warranted presentation of

the case to a jury for its deliberations?

4. Whether the “trial by ambush” tactic of the prosecution,

in producing evidence which was never mentioned in the bill of

particulars, warrants reversal under the supervisory powers of

this Court over lower federal tribunals? (Mesarosh v. United

States, 352 U.S. 1, 9, 14).

(A) Since the court below similarly held that it had

been improper for the prosecutor to have presented his case in the

manner aforesaid, whether due regard for the principles of

justice and due process of law require reversal rather than a

mere oral admonition in an opinion of such a prosecutorial

tactic? [Lee v. Florida, 392 U.S. 378; United States v. Baum, 482

F. 2d 1325, 1331 (2 Cir. 1973).]

5. Whether petitioner Sorkin was denied due process of law

and a fair trial by the tactic of the trial prosecutor in seemingly

arranging a plea bargain for petitioner to plead to a

misdemeanor during the trial, and then reneging thereon after

the defendant had substantially testified in his own behalf under

the belief that the case was just about over for him and after his

defense attorney put in a perfunctory summation, also thinking

that the case had been resolved and a plea would ultimately be

forthcoming? (Fifth Amendment, United States Constitution;

Berger v. United States, 294 U.S. 78, 88; and Santobello v. New

York, 404 U.S. 257). ! :

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment of the United States Constitution; 26

U.S.C. §7206(2); and Rule 7(f), Federal Rules of Criminal

Procedure, are involved.

4

FACTUAL BACKGROUND

Although the prosecution was against two defendants,

namely Thomas J. Carlough and Charles Sorkin, the petitioner

herein, only Charles Sorkin is pursuing this petition to the

Supreme Court, of the United States. In referring to the

indictment, however, we shall use the term “defendants-

appellants”, with the understanding that this Court will realize

that only Sorkin is a petitioner herein.

The indictment charged that the defendants-appellants aided

and abetted each other in the preparation of false and fraudulent

corporate income tax returns with respect to the Mutual

Advancement Corporation (herein called “MAC”), for the fiscal

years ending April 30, 1974 (Count I); April 30, 1973 (Count II).

Carlough alone had been charged with respect to April 30, 1972,

and that is not applicable to Sorkin at all.

Counsel for the defense had made motions, pursuant to

Rule 7(f) of the Federal Rules of Criminal Procedure, for a bill

of particulars. The Government furnished a bill of particulars

and a supplemental bill of particulars, indicating that all of the

names of witnesses who would testify had been divulged, and

also indicating that all of the exhibits it would use had been

disclosed.

As it turned out, substantial evidence, through exhibits

which had never been mentioned in the bill of particulars, was

introduced at trial, and several witnesses were also called to the

stand on behalf of the prosecution, the names of whom were

never previously revealed.

Despite vehement protests and objections by the defense,

the court nevertheless permitted this evidence to be adduced.

It is noteworthy that the court below found that this tactic

was “improper”, but nevertheless charged it up to a lack of

are

PS

5

experience and judgment, despite the fact that prejudice of a

substantial nature flowed to petitioner and his co-defendant at

trial, Carlough.

Petitioner’s involvement in the case was so tangential that it

is difficult to understand why he was even named as a co-

defendant. He was not an officer of MAC and did not

participate in the day-by-day functions of that corporation.

Indeed, because of this very tangential involvement, a

discussion was held on several occasions between defense

counsel (Mortimex Todel, Esq.), and the prosecutor at trial, with

respect to a disposition of the case as against Sorkin, by way of

a misdemeanor plea.

As a matter of fact, the trial prosecutor, Lothar Genge and

Mr. Todel, seemingly arrived at a firm plea _ bargain

arrangement, during the testimony of the defendant in his own

behalf (Sorkin). This also was shortly before the summation of

the attorney for Sorkin and, consequently, both the attorney and

‘Sorkin were lulled into a false sense of security that so far as

Sorkin’s case was concerned, it would never go the jury but

rather would be disposed of by way of a plea to a misdemeanor.

The understanding between Sorkin’s attorney and the

assistant prosecutor was that Sorkin would continue testifying

so that the case against Carlough could be completed.

Suddenly, and seemingly without warning, after improper

preparation had been done for the summation by the attorney

for Sorkin, and Sorkin’s own testimony was colored by his belief

that he was merely going through an exercise in futility, the

prosecutor at trial informed Todel that his superior had not

approved the disposition and that it could not be consummated.

While it is true that there had been an understanding that

the approval of Genge’s superior would have to be obtained, it

6

was never indicated that any difficulty would be experienced in

so doing. All assumed this was a foregone conclusion.

In any event, there should have been an immediate

revelation of the disapproval by the prosecutor to the defense,

rather than the hiatus, which worked to the extreme prejudice of

both of them. Thus, both defense counsel.and Sorkin were

severely prejudiced by working under the false assumption that

the case had been resolved as against him.

During the trial itself, several witnesses and innumerable

exhibits were introduced which had never been adverted to in

the bill of particulars which the Government furnished and the

Government indicated was complete in all respects.

It is noteworthy that the Second Circuit in its memorandum

decision of affirmance noted that it had been “improper” for the

Government to have failed to promptly update its bill of

particulars upon learning that certain exhibits would be

introduced and that certain witnesses would be called who had

not been revealed in its bill of particulars.

In addition, the circuit court declared that this conduct

also “evidenced a lack of appreciation for his responsibility [the

prosecutor’s] as an officer of the court”.

Moreover, a witness by the name of Kenneth Sauer, a

former bank official, testified, and introduced a number of

exhibits which the Circuit Court found to be “both confusing

and of doubtful relevance”. Furthermore, the Circuit Court

found that “similarly” its introduction was improper and also

indicated “a possible iack of judgment and experience” (on the

part of the prosecutor). ;

The petitioner maintains that certiorari should be granted

not only because of the obvious failure to accord him a fair trial

within the purview of the Due Process Clause of the Fifth

ee

7

Amendment of the United States Constitution, but also because

of the serious impact this case presents with respect to confining

the Government to the parameters of its bills of particulars in

criminal cases. It had been supposed that a bill of particulars

concludes the parties to a criminal case, since it is certainly

desirable and required, under due process, that a defendant

charged with a crime be prepared to face these accusations and

not suddenly be confronted with new accusations or unexpected

witnesses about which he has never previously been informed

(Mesarosh v. United States, 352 U.S. 1, 9, 14).

We incorporate by reference the briefs submitted to the

court below.

REASONS FOR GRANTING THE WRIT

The prosecutor tried this case “by ambush” since at trial a

substantial amount of evidence and certain key witnesses were

utilized, although no hint thereof was contained in the

Government’s main and supplemental bills of particulars. Since

a bill of particulars is to enable an accused to prepare for trial

and to prevent surprise, the Government should have been

strictly limited to proving what it had set forth in those

particulars. Unfortunately, the court permitted the prosecution

to go well beyond the parameters of its particulars.

It should be noted, at the outset, that the United States of

Appeals, although affirming the conviction herein, was

extremely critical of the prosecution for their “improper”

conduct and in their “lack of appreciation” of its “responsibility

as an officer of the court” in the manner in which it presented

evidence in the case at bar.

The prosecution had delivered particulars and a

supplemental bill of particulars prior to trial. Notwithstanding

this, and notwithstanding the fact that it had informed the

defense that the particulars were complete, and that all the

witnesses who would testify had been named, nevertheless at

trial, without prior notice, the prosecution placed two witnesses,

Caiazzo and Sauer, on the stand, as a result of which very

damaging testimony was introduced.

The testimony was not applicable to Sorkin, except in the

sense that he was a co-defendant of Carlough. Caiazzo, for

example, had testified that he had never performed services for

the money he was paid from MAC. This, of course, was

damaging testimony in the sense that it indicated that someone

who was apparently being paid was rendering no services.

However, the evidence revealed that Caiazzo was hired by a

person other than Carlough or Sorkin, and that he in fact had

never even met the defendants herein. Nonetheless, his evidence

was permitted.

Sauer, an officer of a bank during the period of time

covered by the indictment, testified as to innumerable

completely irrelevant matters involving bank transactions

primarily, which had nothing to do with the indictment herein.

In fact, his entire testimony was totally irrelevant and could only

confuse the jury.

In its decision, the court below specifically noted that the

special attorney for the Government introduced extensive

evidence, specifically mentioning Sauer by name “which was

both confusing and of doubtful relevance”.

Indeed, the court below affirmed solely on the basis that it

found that there was sufficient other evidence warranting a

conviction.

Under Jackson v. Denno, 378 U.S. 368, however, the

general verdict of a jury cannot be read to mean that it

predicated its action solely upon the admissible evidence. If there

care eet me

Patera ome wnat

9

was inadmissible or improper evidence adduced, then the entire

verdict should fall because it is impossible from a general verdict

to determine upon which evidence the jury decided to wrest its

verdict.

Therefore, despite the fact that it described the

Government’s actions as “improper” and not “reasonable”, the

convictions were nevertheless affirmed.

In the light of such cases as Mesarosh v. United States, 352

U.S. 1, 9, 14, it certainly appears that this Court, under its

supervisory powers over the conduct of lower federal courts,

should certainly rectify this situation, lest this case be interpreted

to mean that prosecutors can go right ahead and introduce

improper evidence; go beyond their bills of particulars, and so

forth, and nevertheless exit with impunity, because other

evidence may be sufficient to warrant conviction.

See also, Coopedge v. United States, 369 U.S. 438, where

the Supreme Court of the United States cautioned (id. at 449):

“When society acts to deprive one of its members

of life, liberty or property, it takes its most

awesome steps. No general respect for, nor

adherence to, the law as a whole can well be

expected without need for prompt, eminently fair

and sober criminal law procedures. The methods

we employ in the enforcement of our criminal

law have apiiy been called the measures by which

the quality of our civilization may be judged.”

(Emphasis ours.)

In Mesarosh v. United States, 352 U.S. 1, 9, 14, the

Supreme Court reminded prosecutors that the federal courts

have supervisory powers over the conduct of criminal trials.

Thus the Supreme Court declared:

10

“This is a federal criminal case, and this Court

has supervisory jurisdiction over the proceedings

of the federal courts. If it has any duty to

perform in this regard, it is to see that the waters

of justice are not polluted. Pollution having

taken place here, the condition should be

remedied at the earliest opportunity.”

Similarly, at an earlier time, in McNabb v. United States,

318 U.S. 332, the Supreme Court likewise declared:

“We hold only that a decent regard for the duty

of courts as agencies of justice and custodians of

liberty forbids that men should be convicted

upon evidence secured under the circumstances

revealed here. In so doing, we respect the policy

which underlies Congressional legislation. The

history of liberty has largely been the history of

observance of procedural safeguards. And the

effective administration of criminal justice hardly

requires disregard of fair procedures imposed by

law.”

11

because his testimony, if believed, might have been sufficient for

the jury to return a verdict of guilty on all three counts. Clearly,

admission of his testimony was certainly a “material variance”

from the bill despite the government’s claim that there was no

variance from the bill (840). The fact that this witness was

allowed over defense objections (825-827) and that his testimony

was not stricken despite a defense motion to strike all material

beyond the bill (937) should be enough to require the court to

reverse the judgment.

In this regard, we maintain that the tactic of the

Government was similar to the trial by ambush which had been

condemned in such cases as United States v. Baum, 482 F. 2d

1325, 1331 (2d Cir. 1973).

Ironically, in the Baum case, it was the failure to reveal the

identity of a Government witness which caused the court to

reverse. Thus, in Baum, the court explained:

“The failure to reveal Greenhalgh’s identity until

he was presented as a witness, confronted the

trial judge with the hard choice of interruption of

the trial or denial to the defense of a reasonable

Defense counsel had carefully preserved objections and

exceptions as well, to the fact that the court permitted the

prosecution to adduce testimony beyond the scope of the bill of

particulars (836, 937-940, 1574).!

The court refused a charge request by the defense that he

instruct the jury that the Government’s proof must be limited to

its bill of particulars (1574).

We must bear in mind that the entire testimony of Andrew

Sauer was outside the scope of the bill of particulars. The

testimony of Kenneth Caiazzo was particularly prejudicial

1. Numerals in parentheses refer to pages of the official court reporter's

minutes.

opportunity of meeting the severe impact of this

aspect of the prosecutor’s evidence. Such tactics

were condemned, and called for the reversal in

United States v. Kelly, 420 F.2d 26, 29 (2d Cir.

1969). In the language of Judge Smith ‘The

course of the government smacks too much of a

trial by ambush, in violation of the rules.’ To be

sure, Baum’s attorney did not make a very

forceful showing in the district court of what

cross-examination or rebuttal material he could

secure. But in a case so close as this, we would

rather give the defendant the benefit of the doubt

than let the Government reap even a slight

possibility of benefit from what we regard as a

lack of candor unworthy of a prosecutor.

12

Here, no reason for nondisclosure was advanced

by the government. Greenhalgh’s testimony was

crucial to the prosecution; it was equally crucial

to the defense. Cf. Roviaro v. United States, 353

U.S. 53, 60, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957);

United States ex rel. Wilkins, 326 F.2d 135, 140

(2d Cir. 1964)” (Emphasis ours.)

To set this matter in proper context, it should be noted that

the bill of particulars, particularly the supplemental bill of

particulars filed by the Government, second paragraph thereof,

stated succinctly as follows:

“Detailed summaries of al/ fraudulent expense

deductions and fraudulent payroll and pension

deductions referred to in the instant indictment

are attached. The specific payees and recipients,

the dates of the alleged payments, and the

amounts involved are set forth.” (Emphasis

added.)

Following was a list of the false employees and other

deductions:

“Employees

LILLIAN BRUSE

JOSEPH THOMAS

JOHN CATALDO

ROBERT CLINTON

VINCENT PURO

THOMAS SORES!”

Another heading in the bill of particulars was:

“Other Deductions

13

KEY DELTA

ADVANCED AIR (or Lawrence Sturgess)

MODERN SHEET METAL SUPPLY

COMPANY”

The Government’s bill of particulars was never amended,

despite an effort to do so by the Government during the trial.

Nevertheless, the Government was permitted to produce

four other witnesses, namely Jerome Rullo, Anthony Pinello,

Angelo R. Solomine and Kenneth Caiazzo.

There were numerous objections throughout the trial with

respect to the Government going beyond its bill of particulars,

but to no avail (935 et seq., 1574).

We have already set forth the motions that were made to

dismiss because of this fact and the refusal of the court to even

charge with respect to it (1574).

As we have explained previously, the prejudice, particularly,

with respect to Kenneth Caiazzo, who testified that he

performed no services for MAC and in fact never received any

compensation, coupled with the fact that he received W-2 forms

for the years 1972, 1973 and 1974, meant that he was necessarily

involved in each and every count of the indictment.

Thus, his testimony alone would have been sufficient for the

jury to find that the corporate returns in question were false. It

was therefore essential that the defense should have been given

particulars of this individual. That this was not done could only

be equated to a trial by ambush. This was not merely cumulative

evidence that could be brushed off.

2. Under Jackson v. Denno, 378 U.S. 368, we learn that a general verdict

of a jury leaves in doubt what they believed or rejected. Thus, the verdict could

have rested on Caiazzo alone, which accentuates the prejudice of withholding

his identity until trial!

14

While we realize that ordinarily a minor or de minimus

departure from the bill of particulars will not be grounds for

reversal, we are setting forth in this Point the fact that severe

deviations from the bill of particulars and substantial prejudice

were wrought by the failure of the Government to fulfill its

obligations with regard to the bill of particulars.

In United States v. Glaze, 313 F. 2d 757 (2d Cir. 1963), at

759, the court explained:

“It is no doubt true that t]he function of a bill

of particulars is to enable the accused to prepare

for trial and to prevent surprise, and to the end

the government is strictly limited to proving what

it has set forth in it.’ United States v. Murray,

297 F.2d 812, 819 (2d Cir.), cert. dnied, 369 U.S.

828, 82 S.Ct. 845, 7 L.Ed. 2d 794 (1962). See

United States v. Neff, 212 F.2d 297, 309 (3d Cir.

1954). Courts must therefore view with suspicion

attempts by parties to adduce proof of facts

which modify or contradict assertions recorded. in

their bill of particulars.”

In United States v. Neff, 212 F. 2d 297 (3d Cir. 1954) at

309, the court declared:

“Bills of particulars in criminal cases in federal

courts are governed by Rule 7(f) of the Federal

Rules of Criminal Procedure, 18 U.S.C., which is

substantially a restatement of well-settled

principles. The latter establish that a bill of

particulars ‘Once obtained... concludes the

rights of all parties who are to be affected by it,

and he who has furnished the bill of particulars

under it, must be confined to the particulars he

has specified, as closely and effectually as if they

constituted essential allegations in a_ special

15

declaration.” Otherwise stated, a bill of

particulars strictly limits the prosecution to proof

within the area of the bill.” (Emphasis ours.)

See also, 8 Moore’s Federal Practice, 2nd Edition, Par.

7.061, pages 7-33 and | Wright Federal Practice and Procedure

— Criminal Section 129, pages 292, et seq.

See also, United States v. Slaughter, 89 F. Supp. 205

(D.C.D.C. 1950); Bryan v. United States, 175 F. 2d 223 (5th

Cir. 1949); Rabinowitz v. Borish, 43 F. Supp. 413 (D.C.N.J.

1942); United States v. Glasser, 116 F. 2d 690 (7th Cir. 1940),

reversed in part and affirmed in part, 315 U.S. 60 (1942); United

States v. Adams Express Co., 119 Fed. 240 (D.C.S.D. lowa

1902); United States v. King, 49 F.R.D. 51 (D.C.N.Y. 1970).

See also, United States v. Murray, 297 F. 2d 812, 819 (2d

Cir. 1962), cert. denied, 369 U.S. 828; United States v. Yarus,

198 F. Supp. 425, 428 (D.C.N.Y. 1961); United States v. De

Pugh, 266 F. Supp. 417, 421 (D.C.Mo. 1967); United States v.

Leonelli, 428 F. Supp. 880, 883 (S.D.N.Y. 1977) and United

States v. Salazar, 485 F. 2d 1272, 1273 (2d Cir. 1973), cert.

denied, 415 U.S. 985.

See in addition, United States v. Lebron, 222 F. 2d 531,

535-536 (2d Cir.), cert. denied, 350 U.S. 876; United States v.

Crisona, 271 F. Supp. 150 (S.D.N.Y. 1967).

From a reading of the trial transcript it is obvious that the

trial judge herein refused to grant the motion to dismiss and

apparently ruled that the Government had not violated any of

the defendants’ rights with respect to failure to supply

information in the bill of particulars, as objected to.

In United States v. Eissner, 206 F. Supp. 103 (D.C.N.Y:

1962), the court aptly observed, at 105:

16

“A ruling based upon abuse of discretion seldom

gives meaningful guide to the district court as to

what is proper in particular situations. | am

mindful that discretion, as Lord Mansfield

outlined it, must not be arbitrary, vague and

fanciful, but legal and regular. As stated in

Osborn v. Bank of the United States, 22 U.S. (9

Wheat.) 738, 862, 6 L.Ed. 204, 234, an important

task in the exercise of discretion by a judge is to

discern the course prescribed by law, and when

that is discerned, it is the duty of the court to

follow .it. My discernment now is, upon

reconsideration and reflection, that my previous

restrictive interpretations in the net worth-

expenditure cases allowing only the statement of

a judicial principle of proof in the same manner

as recital ‘of the bare wording of a criminal

statute’ is not in accord with the recent trend of

decisions in the Court of Appeals, Second

Circuit. Recent decisions of that Court on

problems of disclosure by the Government at the

trial demonstrate a praiseworthy inclination to

strive for as many safeguards as possible in

criminal prosecutions in this circuit in order that

truth may be ascertained as fully as humanly

possible. (United States v. Zborowski, 2d Cir.,

271 F.2d 661; United States v. McKeever, 2d

Cir., 271 F.2d 669; United States v. Giampa, 2d

Cir., 290 F.2d 83; United States v. Hernandez, 2d

Cir., 290 F.2d 86; United States v. Crosby, 2d

Cir., 294 F.2d 928, 950; United States v.

Freeman, 2d Cir. 302 F.2d 347.” (Emphasis

ours.)

At page 106 of the Eissner opinion, the court added:

“There is increasing consideration being given in

legal and judicial circles to the helpfulness that

17

might be gained in these complicated situations

by the conduct of a criminal pre-trial. In my

opinion, proper preliminary disclosure always

clarifies and at times removes completely

problems that complicate and slow down the

trial. There is an interesting experience of this

kind relating to the reluctance of certain Internal

Revenue agents to divulge any information to a

defendant indicted for income tax evasion and

the good result finally obtained when such

reluctance was overcome by discussion and

persuasion. (Seminar on Procedures for Effective

Judicial Administration, Dallas, Texas, (1961),

29 F.R.D. 191, 442.)

In the treatment of all these matters, it may

be well to remember the high-minded philosophy

of the Supreme Court ‘not meant, I am sure,

merely as a slogan, that the interest of the United

States in a criminal prosecution is not that it

shall win a case but that justice shall be done.’

(Berger v. United States, 295 U.S. 78, 88, 55

S.Ct. 629, 79 L.Ed. 1314.) The bill of particulars

is not evidence of itself; it is merely a statement

of what the government will or will not claim.

(United States v. Murray, (1962), 2d Cir., 297

F.2d 812, 819.)” (Emphasis ours.)

The court, in Eissner, also observed:

“The procedures connected therewith are now

liberalized, followed and taken for granted.

Jencks v. United States (1957), 353 U.S. 657, 77

S.Ct. 1007, | L.Ed.2d 1103; 18 U.S.C.A. §3500

(1957); see also Palermo v. United States, 360

U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287;

18

Campbell v. United States, 365 U.S. 85, 81 S.Ct.

421, 5 L.Ed.2d 428; Clancy v. United States, 365

U.S. 312, 81 S.Ct. 645, 5 L.Ed. 574).”

The court erred by permitting the testimony of Andrew

Sauer, despite the fact that it was virtually irrelevant to the

charges herein and completely prejudicial to the rights of the

defendants. Sauer, a former bank official was permitted to relate

how he authorized the converting of cash into checks and checks

into cash, but without any‘ nexus to this indictment whatsoever.

It is beyond cavil that the prosecution used Sauer to interject

prejudicial and irrelevant matters which could only confuse the

jury.

Again we point to the fact that the court below found the

testimony of Sauer should «ot have been admitted; that it was

confusing and irrelevant. The court indicated that to a marginal

degree it may have had some reflection on intent to defraud, but

even the court below was not certain of that.

The Government sought to justify the use of Andrew Sauer

as a witness by stating that his testimony (1) was needed in order

to demonstrate that he was used to facilitate payroll payments to

“no-shows” and (2) camouflage improper deductions on MAC

tax returns, and (3) facilitate illegal pension deductions.

Notwithstanding the Government’s assertions, they failed to

prove or even establish any such course of action with respect to

either of the defendants.3

Nothing illegal whatsoever, vis-a-vis MAC or either of the

defendants, was proven or demonstrated. The only illegality was

3. The Government is required to establish relevancy and cannot rely on

inferences or presumptions [United States v. Benedetto, 571 F. 2d 1246, 1248

(2 Cir. 1978); United States v. O’Connor, 580 F. 2d 38 (2 Cir. 1978)].

19

Sauer’s failure to report certain cash transactions as required by

federal regulations. Sauer apparently failed to file forms with

respect to cash transactions that he engaged in as a banker

(Form 4789 “Currency Transaction Report” is required to be

filed with respect to certain cash transactions).

Virtually all of the testimony of Sauer was dehors the bill of

particulars.

Sauer was the vehicle through which the Government

introduced a number of checks before the jury. We submit these

checks had nothing to do with criminality and had nothing to do

with the charges in this indictment, and were solely to prejudice

the defendants, which they did very well.

Of the sixteen checks referred to and introduced into

evidence through Sauer, six (Exhibits 18, 22, 23, 24, 25 and 26)

are dated after the date of the taxable year involved, and six

(Exhibits 7, 21, 32, 33, 34 and 35) were negotiated after the date

of the taxable year.

While four were written and negotiated within the dates of

the taxable year they, too, were totally irrelevant to the case.

None of the checks were tied in with MAC deductions or

with any criminality.

None of the Century Federal Bank drafts among the items,

and none of the cash from Sauer, went to “no-shows”.

Only Exhibits 22 and 28 were even remotely related to

defendant Sorkin. The other exhibits referred to by Sauer are

solely with reference to Carlough. None of the checks, however,

indicate any criminality, and are certainly not relevant to this

indictment.

To show that the Sauer testimony was not just de minimus,

the following page references indicate places in the record where

20

Sauer testimony, or Sauer himself, is involved (21-A, 22-A, 23-

A, 26-A, 315, 317, 414, 418, 445-509, 1047, 1051, 1178-1182,

1237, 1247, 1262, 1358-1350, 1354-1356, 1384, 1435, 1436, 1439,

1440, 1441, 1452, 1519, and perhaps in several other places).

Pages 21-A through 26-A refer to pages of the Assistant

U.S. Attorney’s opening, where he refers to Sauer and the bank

for which he worked, and pages 1435 through 1519 refer to

pages of Assistant U.S. Attorney Genges’ summation and

rebuttal. Thus, it is obvious that the Government placed great

reliance upon the Sauer presentation.

To demonstrate how irrelevant and prejudicial the

testimony was, we analyze Sauer’s testimony as follows, in brief:

Exhibit 7 was a MAC check for $12,500 to Zuckerbrot

dated April 19, 1974, cashed at Century Federal on July 22, 1974

(481, 482).

This item is not mentioned in the bill of particulars; it is not

deducted as an expense by MAC; it was cashed after the date of

the taxable year; it in no way relates to the indictment herein,

which is false deductions on tax returns; and, Sorkin is not

involved in any respect.

Zuckerbrot testified that it represented a return of half of

his MESBIC investment and that he asked Carlough to cash it

for him (Zuckerbrot, 98-100). The back of the check is

obliterated so that the bank stamp is illegible (Sauer, 483), but

this is totally irrelevant to the case (1049-1052).

MESBIC money was put into MAC after MESBIC was

abandoned, as loans payable to MESBIC investors. This money

does not affect the tax liability of MAC. On April 19, 1974, a

series of MAC checks were written to MESBIC investors as

partial payment of MESBIC investments. See Sauer Exhibits 21

21

(MAC check to Howard); 32 (MAC check to Stack); 33 (MAC

check to Rubin); 34 (MAC check to Modern Sheet Metal Co.);

and 35 (MAC check to Schichtman).

Exhibit 18 is a MAC check for $32,000 dated October 1974

signed and endorsed by Carlough and cashed by Sauer (476,

477). This check is dated after the date of the taxable year; it is

not mentioned in the bill of particulars; it is not deducted as an

expense by MAC; and it in no way relates to the indictment.

Sorkin is not involved at all and, of course, to the extent

Carlough is involved, it is not within the purview of the

indictment, nor is it criminal.

The check does not appear on the books of MAC. Sauer

said that the $32,000 was used to pay for a $16,000 check to

Sturgis and a similar check to Hough (Sauer, 478, Exhibits 24

and 26).

Blum testified that the check did not appear on MAC books

because it was an exchange (Blum, 334-348, Exhibits 19 and

19A).

The $16,000 checks to Sturgis and Hough were endorsed by

the payees and deposited to MAC, thus completing the

exchange.

Exhibit 20, a Century Federal check for $25,000 payable to

Howard, dated June 17, 1973, and endorsed by Howard to

SWIA, Local 400, also is not mentioned in the bill of

particulars. It is not deducted as an expense by MAC. It is not

even a MAC check. Thus, it, too, is totally irrelevant to the

indictment and could only have been introduced to inject

prejudice, confusion and irrelevancy.

The check was purchased with cash given to Howard by

Carlough (Howard, 401-402). While the source of the $25,000 is

not indicated, the money was certainly not from MAC, because

22

it does not even appear on the MAC books. Howard took the

cash to Sauer, who issued the check (Sauer, 470).

While Howard at first claimed that Carlough gave him the

$25,000 to buy the check so that Howard would appear to be an

investor in Key Delta, it is obvious that there is no

corroboration for this in the record (Howard, 401-404).

_ The endorsement on the check gives the lie to Howard’s

testimony since it is obvious that the check went to MESBIC

not to Key Delta (Howard, 425-426).

It was argued that Carlough gave the money to Howard for

MESBIC, since if Carlough put the money in, Carlough would

own a larger share in MESBIC than was permitted.

Exhibit 21 is a MAC check to Howard dated April 19,

1974, cashed by the teller at the Century Fed :

eral in Jul

(Howard, 420). y in July of 1974

This item, again, is not mentioned in the bill of particulars.

It is not deducted as an expense of MAC. It was cashed after the

date of the taxable year. It does not, in any way, shape or form

relate to the indictment. Again, Sorkin is not involved in ies

way, and to the extent Carlough is involved, there is clearly no

evidence of criminality or relevancy.

The fact that the back of the check was oblite i

rated

irrelevant (1049-1052). pabeeaete,

Howard said that the money came from Carlough for a

side-business deal with an auctioneer (Howard, 420-423).

Exhibit 28 is a Century Federal check for $36,000 to Little

Falls Laundry, dated December 26, 1973, paid for in cash.

Again, this item is not on the bill of particulars. It is not

deducted as an expense by MAC. The cash was not MAC

23

money and in no way does it relate to the indictment, which

charges false deductions on the tax returns.

Sauer said that Sorkin brought the cash in excess of $10,000

and gave him a $500 commission for writing the check (Sauer,

461-465). Sorkin denied delivering the cash or the fee (Sorkin,

1350). This item was the subject of a mistrial motion made by

Sorkin’s lawyer, which the court denied (468-469).

It is interesting to note, and significant for this appeal, that

originally the trial court indicated it would not permit the

introduction of Exhibit 28 (328). Nevertheless, the court

ultimately did admit it, asking that it be referred to as an

amount in excess of $10,000 (464). Although the judge below

indicated that he would instruct the jury that this item was not

part of the charges, but was being used to show a pattern of cash

dealings (470), no such instruction was ever given. This,

incidentally, was the only cash dealing alleged as far as Sorkin

was concerned, so the trial court was incorrect to refer to this

item as showing “a pattern of cash dealings.”

The judge ultimately was misinformed by Assistant U.S.

Attorney Genge who told him that this check, payable to Little

Falls Laundry, was relevant, because Little Falls Laundry was

part of a consortium (318, 323, 327). This, of course, was not

true. Little Falls had its own contract with the Department of

Labor (945-949).

Exhibit 22, a Baldwin Liquidators check for approximately

$69,000, probably dated around August of 1974, payable to

Sorkin, again, is not mentioned in the bill of particulars, and is

not on the books of MAC. It is therefore not deducted as an

expense by MAC. The whole transaction occurred after the date

of the taxable year. It is totally irrelevant to the indictment,

which charges false deductions on tax returns.

Indeed, the endorsement upon the check is an obvious

forgery since Sorkin was in Israel at the time the transaction

24

took place (Howard, 1181). In any event, it is totally irrelevant

to the charges.

Exhibit 23, a Century Federal check for $25,000 payable to

Mr. and Mrs. Sturgis, dated October 15, 1974, also is not

mentioned in the bill of particulars. It is not deducted as an

expense by MAC. There is no MAC check for the cash. It is

dated after the date of the taxable year and in no way does it

relate to the charges in this indictment. Sorkin is not involved in

any way, and to the extent Carlough is involved, there is

obviously no criminality nor relevancy.

While Sauer said the check was drawn on Carlough’s

behalf, and that he did not know if a MAC check or cash was

used to buy it (Sauer, 487-488), the court nevertheless permitted

the introduction of the item.

The $25,000 represented money from Carlough loaned to

Sturgis to use in Advanced Air. It was secured by a second

mortgage on Sturgis’ home.

Exhibit 24 is a Century Federal check for $16,000 to Mr.

and Mrs. Sturgis, dated November 18, 1974. This was, no doubt,

a typographical error, since it should be October 18, 1974 (478).

Once again, this item was never mentioned in the bill of

particulars. It is not deducted as an expense by MAC, and it is

dated after the date of the taxable year. Thus, it has no

relevancy whatsoever to the charges herein. Sorkin is not

involved at all and, to the limited extent that Carlough is

involved, it does not indicate any criminality or impropriety.

This check was part of an exchange and has nothing to do with

MAC at all. The check, together with Exhibit 26, were deposited

to MAC to complete an exchange (Blum, 335-348). See also,

Exhibit 19 and 19A. The check has nothing to do with MAC

and it is part of an exchange.

25

Exhibit 25 is a Century Federal check for $25,000 to Mr.

and Mrs. Hough dated October 15, 1978. This check was a loan

by Carlough to Hough and was secured by a $25,000 mortgage

on Hough’s home. It was to permit Hough to use it in

connection with Advanced Air. Sauer said this check was drawn

on Carlough’s behalf and he did not know if a MAC check or

cash was uscd to buy it (Sauer, 487-488).

Once again, this is an item that was not mentioned in the

bill of particulars. It is not deducted as an expense by MAC and

there is no MAC check for this money. It is dated after the date

of the taxable year, and it does not, in any way, shape, or form

relate to the charges herein. Sorkin is not involved and, to the

extent Carlough is mentioned, there is no indication of

criminality.

Exhibit 26 is Century Federal’s check for $16,000 to Mr.

and Mrs. Hough, dated November 18, 1974, which is a

typographical error, since it should be dated October 18, 1974

(Sauer, 478).

This item, again, is not mentioned in the bill of particulars.

It is not deducted as an expense by MAC. It is dated after the

date of the taxable year and it does not, in any way, shape or

form relate to the charges herein. Sorkin is not involved in any

way, and to the limited extent Carlough is mentioned therein, it

is not indicative of any criminality at all. Like the others, this

had no relevancy to the case, other than to confuse and

prejudice the jury.

Sauer said that this check, and also Exhibit 24 (Century

Federal’s check for $16,000 to Mr. and Mrs. Sturgis), were paid

for by a $32,000 MAC check (Exhibit 18), payable to Carlough

and signed and endorsed by Carlough (Sauer, 478).

The check, together with Exhibit 24, were deposited to

MAC to complete an exchange (Blum, 335-348, Exhibits 19 and

26

19A). The check, therefore, had nothing to do with MAC; it was

simply part of an ‘exchange.

Exhibits 29 and 30 were Century Federal’s checks for

$10,000 and $15,000 to Stack dated October 28, 1973 and

February 1973.

This item, again, is not on the bill of particulars. It is not

deducted as an expense by MAC. There is no MAC check for

this money. In no way does it relate to the indictment. Sorkin

was not involved in any way and, to the limited extent Carlough

is mentioned, it is without any attachment of liability or

criminality.

Sauer said the checks were given to Carlough at Carlough’s

request and that he could not say whether they were issued for

cash or checks (480-481).

Stack said that they were endorsed with a facsimile (573)

and that he did not receive the proceeds of these checks (571).

Exhibit 32 is a MAC check for $20,000 to Stack dated April

19, 1974. This item, again, is not on the bill of particulars. \t is

not deducted as an expense by MAC, and it is therefore totally

irrelevant to the charges herein.

Stack said that it was part return of money he had invested

in MESBIC. Sauer said the check was negotiated at the bank

(485).

The MESBIC money was put into MAC (after MESBIC

was abandoned) as loans payable to MESBIC investors; the

money does not effect tax liability on MAC. On April 19, 1978 a

series of MAC checks was written by Carlough to MESBIC

investors as partial payment of their MESBIC investment (see

Sauer Exhibits 7, 21, 33, 34 and 35).

27

Exhibit 33 is a MAC check to Rubin dated April 19, 1978.

This item is not in the bill of particulars. \t is not deducted as an

expense by MAC. It had no relationship whatsoever to the

indictment. Sorkin is not involved in any way and, to the limited

extent Carlough is involved, it is without any indication of

criminality.

Again, while the money from MESBIC was put into MAC,

after MESBIC’s abandonment, as loans payable to MESBIC

investors, the money does not affect the tax liability of MAC at

all because, as we have indicated previously, on April 19, 1978, a

series of checks were written by Carlough to MESBIC investors,

as partial payment of their MESBIC investment (see Sauer

Exhibits 7, 21, 32, 33, 35).

Exhibit 35 is a MAC check to Michael Schichtman dated

April 19, 1974. This item is not in the bill of particulars. \t is not

deducted as an expense by MAC. It has nothing to do with the

indictment herein. Sauer said that the check was negotiated at

the bank (Sauer, 485). Schichtman said it was endorsed with a

facsimile signature that Carlough had (Schichtman, 609).

Schichtman further declared that he did not receive the proceeds

of the check (609).

As we indicated before, this was MESBIC money and

MESBIC money was put into MAC as loans payable to

MESBIC investors, and that money was returned in a series of

checks (see Exhibits 7, 21, 32, 33, 34).

From the foregoing it is obvious that the testimony of Sauer

introduced so many exhibits that were totally irrelevant to the

indictment, and so wholly prejudicial and confusing, that it

would have been impossible for any jury to understand what the

significance of that testimony was, because it had no significance

to these charges at all. It is clear, we maintain, that the court

28

erred gravely in admitting these exhibits and testimony over

objection.*

As another adjunct of the tactic of the Government of using

“trial by ambush”, the prosecution called four witnesses who

were so-called “no-show” employees whose names were never

mentioned in the bill of particulars. Sorkin had nothing

whatsoever to do with any of the “no-shows” since he did not

hire them and had no say in their hiring. Carlough had, in fact,

given tasks to these employees, with the exception of Kenneth

Caiazzo, who, as we indicated previously, was unknown to

either defendant, but was hired by John Cammerato.

Defendant-appellant Sorkin had nothing to do with any of

the “no-shows”, since he had nothing to do with their hiring

under any circumstances.

Carlough, on the other hand, was involved with some of

them, and with those that he did have contact with, it was

obvious that they did have tasks, such as union organization

work, training and so forth. The one exception to this was

Kenneth Caiazzo, as we have indicated before, but he never had

any contact with either defendant and, in fact, was unknown to

both of them. He had been hired by John Cammerato.

These four individuals, to whom we _ have adverted

previously and who were never mentioned in the bill of

particulars, were another source of surprise during the trial to

the defendants, and was another manifestation of the tactic of

“trial by ambush” (see United States v. Baum, supra) that the

Government utilized.

4. We wish this Court to note that we are including by reference all of the

arguments made in the court below, as contained in the briefs and reply briefs

and motions for rehearing. We are certain that this Court has facilities to avail

itself of such material.

29

The payroll was prepared from vouchers and submitted to

-unick. The employees were added to the payroll at the

discretion of appellant Carlough, not Sorkin (153).

The alleged “no-shows” called by the Government indicate

that they were hired by Carlou i

gh (Soresi, 275, 287; P

299, 303; Clinton, 371, 391; Thomas, 745). one

In an attempt to prejudice the j

| Jury, the Government called

four other witnesses none of whom were mentioned in the bill of

particulars, as we have indicated. These were Rullo, 702-721:

Pinello, 721-727; Solomine, 727-734 and Caiazzo, 842.. :

Since Sorkin obviously had no knowledge of “no-shows”, it

follows that he had no knowledge of alleged illegal payroll

deductions, and a fortiori was unaware of any impropriety with

respect to pension deductions.

That is not to say that Carlough was in any way liable or

criminally involved, since with the exception i

/ of Ca

people did do work. P 1azzo all these

The Labor Department representative, Castellani, had

previously testified that since employees were certified by the

consortium, MAC ordinarily had no knowl

ed

were doing anyway. ge of what they

Caiazzo testified that he never received any pay and he did

no work. W-2 forms, however i

; » were issued for hi

deductions taken. honey

Since neither Carlough and Sorkin had ever met him, and

he was hired by John Cammerato, and not by either of the

5. In his grand jury testimony, agent Dioguardi, who was in charge of the

investigation, testified that he could not connect Sorkin wi

: orkin with

employees (Dioguardi, Grand Jury, 9-8-14). any of the false

30

appellants, the testimony of this individual, who was not named

in the bill of-particulars, was very prejudicial since the jury could

have convicted on the basis of his testimony alone.

We maintain, however, that this type of testimony was

incredible to attribute to the defendants. Caiazzo himself

admitted that he had never met either of the defendanis.

But the ingredient of having left his name out of the bill of

particulars, and then introduce his testimony at trial, was So

prejudicial as to warrant a vacating of the conviction,

irrespective of any other error in the case.

This is equally true with regard to the Sauer testimony and

the numerous exhibits introduced through him.

IV.

The defendant-appellant Sorkin was severely prejudiced by

a breach of understanding and by a “sandbagging” tactic used by

the prosecution in connection with a plea bargain that was

being negotiated toward the end of trial on behalf of Sorkin.

The Government led ‘the attorney for Sorkin, and Sorkin

himself, down a “primrose path”, thinking that they had a plea

to a misdemeanor settled when, in fact, it never took place. On

account of this belief, however, defense counsel for Sorkin did

not adequately prepare for summation, and a substantial portion

of Sorkin’s own testimony was motivated by his belief that it

was a meaningless exercise in futility since he was going to plead

guilty anyway.

The record is replete with inferences to the fact that there

were plea negotiations between Sorkin, counsel for Sorkin, and

the Government, permitting him to plead out to a misdemeanor.

The most virulent of these instances, however, occurred

toward the end of the trial when the Government, in negotiating

with defense counsel, indicated that a plea would in all

31

likelihood be accepted after the jury heard all of the testimony in

the case, including the summations. This was so as not to affect

the Government’s case against Carlough (1399-1401). This offer

was communicated to the defendant through his attorney,

Mortimer Todel (a former Executive Assistant United States

Attorney in the Southern District).

As the papers filed in the case indicated, together with the

record, after Sorkin was apprised of this offer, he informed his

lawyer, by telephone, to accept the plea.

Defense counsel for Sorkin indicated in filed papers that he

was in the middle of preparing his summation, and after being

informed that his client would accept the plea offered, he

desisted and said, in effect, “Good, now I can stop working on

this summation and get some sleep.”

The following morning counsel informed the Government

that the offer was accepted and was told that Mr. Genge (the

assistant in charge of the prosecution) had informed his

superior, Mr. Puccio, by telephone, of the matter and was going

to see him again face-to-face.

Since the plan was to complete the case so as not to

prejudice the jury’s thinking about Carlough, Sorkin resumed

the stand and completed his testimony, with the knowledge that

his case would not go to the jury because he believed that a plea

bargain had been consummated. Obviously, Sorkin believed that

his testimony was an exercise in futility and a mere formality.

This false sense of security, into which he was lulled,

disarmed Sorkin and made him somewhat blase about his

testimony altogether.

Later in the day the defense rested, and still thinking that

everything was a fait accompli, summations were articulated.

32

It is obvious that there was certainly, at the very least, a

grave misunderstanding. This Court should not permit this type

of unfairness to go unremedied.

In Santobello v. New York,® 404 U.S. 257 (1971), the

Supreme Court of the Jnited States said that the left hand must

know what the right hand is doing in the prosecutor’s office. In

this case, we maintain, it is inferable that Mr. Genge, the

Assistant U.S. Attorney, led the defense astray, and gave the

complete impression that a plea bargain had been arrived at.

While it is true that he indicated he would have to speak again

to his superior, Mr. Puccio, he had no right to allow the defense

to think that the plea bargain was virtually consummated. He

should have disabused counsel of any such thought well in

advance of his preparation for summation. He should have

apprised the defendant before he took the stand again. None of

these things were done. While we dislike using terms such as

“sandbagging”, we believe that the metaphor is apt.

Santobello, supra, made it plain, however, that the core

concept is the constitutional right of the defendant to be treated

with “fairness” (see Cooper v. United States, ___ F. 2d __,

decided March 5, 1979, 4th Cir., Docket No. 77-2288). See

generally, P. Westen and D. Westein, A Constitutional Law of

Remedies for Broken Plea Bargains, 66 Calif. L. Rev. 471

(1978).

The Cooper case is a recent decision of the Fourth Circuit,

which goes into great detail in announcing its determinations

with respect to broken plea bargains.

Referring to the case of United States v. Carter, 454 F. 2d

426, the Fourth Circuit, dealing with a case where one Assistant

U.S. Attorney rejected a plea bargain made by another,

observed, quoting the language of Carter (454 F. 2d at 428):

6. Argued by the writer of this brief.

33

“There is more at stake than just the liberty of

this defendant. At stake is the honor of the

government, public confidence in the fair

administration of justice, and the efficient

administration of justice...”

See Luiz v. C.1.R., _ F.2d ___ (6th Cir. 2/22/79, Docket No.

79-725).

It has been held that a plea bargain, even if not actually

struck, may result in a grave misunderstanding effecting the

rights of one or both parties. Where such a grave

misunderstanding does occur, the verdict and judgment must be

set aside. (See People v. Forlano, 19 App. Div. 2d 365; People v.

Granello, 18 N.Y. 2d 833; People v. Vignera, 29 App. Div. 2d

657; and Santobello v. New York, supra.)

In Shelton v. United States, 246 F. 2d 571 (Sth Cir.), the

case was reversed per curiam because “The plea of guilty may

have been improperly obtained”. Although converse here, the

principle is similar.

See also, Sorrells v. United States, 287 U.S. 435.

See too, Coopedge v. United States, 369 U.S. 438, where

the Supreme Court of the United States cautioned (id. at 449):

“When society acts to deprive one of its members

of life, liberty or property, it takes its most

awesome steps. No general respect for, nor

adherence to, the law as a whole can well be

expected without need for prompt, eminently fair

and sober criminal law procedures. The methods

we employ in the enforcement of our criminal

law have aptly been called the measures by which

the quality of our civilization may be judged.”

(Emphasis ours.)

34

In Mesarosh v. United States, 352 U.S. 1, 9, 14, the

Supreme Court reminded prosecutors that the federal courts

have supervisory powers over the conduct of criminal trials.

Thus the Supreme Court declared:

“This is a federal criminal case, and this Court

has supervisory jurisdiction over the proceedings

of the federal courts. If it has any duty to

perform in this regard, it is to see that the waters

of justice are not polluted. Pollution having

taken place here, the condition should be

remedied at the earliest opportunity.”

Similarly, at an earlier time, in McNabb v. United States,

318 U.S. 332, the Supreme Court likewise declared:

“We hold only that a decent regard for the duty

of courts as agencies of justice and custodians of

liberty forbids that men should be convicted

upon evidence secured under the circumstances

revealed here. In so doing, we respect the policy

which underlies Congressional legislation. The

history of liberty has largely been the history of

observance of procedural safeguards. And the

effective administration of criminal justice hardly

requires disregard of fair procedures imposed by

law.”

Vv.

This Court should grant certiorari and should then reverse

the conviction in order to deter future conduct on the part of

Government officials as displayed by the case at bar.

In Lee v. Florida, 392 U.S, 378, as well as in Brady v.

Maryland, 373 U.S. 83, and other cases, this Court has made it

clear that even the negligent or inadvertent misconduct or

impropriety on the part of the Government will be dealt with

severely,

35

In Lee v. Florida, supra, this Court was faced with the

dilemma of prosecutors totally ignoring the Federal

Communications Act. There was no remedy to ameliorate this

problem since apparently no prosecutors were being prosecuted

themselves. Accordingly, this Court held that the only means of

deterrence was to eliminate the benefits that such prosecutors

obtained by their misconduct by reversing the convictions.

In the case at bar, we maintain that this is the only sensible

thing to do as well since admonishing a prosecutor that he has

acted improperly and that he has done things he should not have

done do not help the situation since in essence the prosecutor

recognizes that he has “gotten away with it”.

We maintain that the only deterrence that means anything

to a prosecutor is to take away the conviction which was the end

object in the means he employed which turned out to be

improper,

The court below has already determined that the conduct

was improper, but by some rather involved and casuistic

reasoning, has determined that the conviction should stand

anyway because there was other evidence warranting the finding

of guilt.

We have already discussed the dilemma such holdings have

within the purview of Jackson v. Denno, supra, where the

general verdict of the jury cannot be analyzed to determine what

evidence they relied upon,

We maintain therefore, that if this Court is to enforce a

standard of conduct as set forth in Mesarosh v. United States,

supra, and other cases, that the only reasonable deterrent is to

invoke the cogent holding of Lee v. Florida, supra, and to

reverse the conviction.

36

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

s/ Irving Anolik

Attorney for Petitioner

APPENDIX

OPINION AND ORDER OF THE UNITED STATES

COURT OF APPEALS DATED SEPTEMBER 21, 1979

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the twenty-first day of

September, one thousand nine hundred and seventy-nine.

Present:

HONORABLE J, EDWARD LUMBARD

HONORABLE WALTER R, MANSFIELD

HONORABLE MURRAY I, GURFEIN

Circuit Judges.

Filed Sep. 21, 1979

A. Daniel Fusaro, Clerk

Docket No, 79-1172

UNITED STATES OF AMERICA,

Appellee,

~against-

THOMAS J, CARLOUGH and CHARLES SORKIN,

Defendants-Appellants.

2a

Opinion and Order

Upon this appeal by Thomas J. Carlough and Charles

Sorkin from judgments of the District Court for the Eastern

District of New York, entered on April 20, 1979, after a jury

trial before Judge Henry J. Bramwell convicting appellants of

aiding and abetting the filing by Mutual Advancement

Corporation (MAC) of false and fraudulent federal corporate

income taxes for the years 1972, 1973 and 1974 in violation of 26

U.S.C. §7206(2), the said judgments, after our examination of

the record, reading of the parties’ briefs on appeal, and hearing

oral argument by counsel, are

AFFIRMED.

(1) There was ample evidence to permit the jury to find the

two defendants guilty beyond a reasonable doubt, including

testimony of numerous witnesses and records showing that

appellants deducted from MAC's reported corporate income (a)

salaries of various individuals who performed no services for

MAC, (b) wages credited to various “no-show” or “phantom”

employees who performed no services for MAC, and (c)

payments of $67,500 to Key Delta Corporation, $30,000 to

Modern Sheet Metal Supply Co., and $34,000 to Advanced Air

Corporation for services not rendered. Moreover, assuming the

last payment was a loan, it was not deductible as a bad debt in

the absence of any showing of unsuccessful efforts to collect the

debt or that the debt had become worthless, Ludwig Bauman

Co. v. C..R., 312 F.2d 557, 558 (2d Cir. 1963).

(2) The failure of the Special Counsel for the Government

promptly to update its Bill of Particulars, upon learning that he

would call certain witnesses (Caiazzo and Sauer) and that

certain exhibits would be introduced, was improper and

evidenced a lack of appreciation for his responsibility as an

officer of the court. Similarly, the needless introduction by the

Special Attorney of extensive evidence (e.g., portions of the

testimony of Sauer and exhibits introduced through him) which

;

— ———

3a

Opinion and Order

was both confusing and of doubtful relevance indicates a

possible lack of judgment and experience. However, the

independent evidence of appellants’ guilt was overwhelming.

Appellants failed to show any substantial prejudice from the

variance between the Bill of Particulars and the proof. See

United States v. Glaze, 313 F.2d 757, 760 (2d Cir. 1963).

Appellants, moreover, failed to seek a continuance and had

approximately 14 days after Sauer testified and 7 days after

Caiazzo testified within which to subpoena rebuttal witnesses or

documentary proof. Lastly, some of Sauer’s testimony and

supporting documents were relevant to the issue of appellants’

fraudulent intent.

(3) Since negotiations between attorneys for a possible

guilty plea by Sorkin to a lesser offense (misdemeanor) were

expressly conditioned on obtaining the approval of the

Government prosecutor's superior, which was not given,

Sorkin’s attorney was not reasonably justified in assuming that a

plea bargain would result or in relaxing the vigor of his

summation. Nor was there any unfairness on the Government's

part in conducting such conditional negotiations during trial.

s/ J. Edward Lumbard

J. Edward Lumbard, U.S.C.J.

s/ Walter R. Mansfield

Walter R. Mansfield, U.S.C.J.

s/ Murray I. Gurfein

Murray |. Gurfein, U.S.C.J.

4a

ORDER DENYING PETITION FOR REHEARING DATED

NOVEMBER 28, 1979

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the 28th day of November,

one thousand nine hundred and seventy nine.

Present:

HON. J. EDWARD LUMBARD

HON. WALTER R. MANSFIELD

HON. MURRAY I. GURFEIN

Circuit Judges.

79-1172

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

THOMAS J, CARLOUGH

CHARLES SORKIN,

Defendants-Appellants.

5a

Order

A petition for a rehearing having been filed herein by

counsel for the appellants’ Thomas J. Carlough & Charles

Sorkin.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

A. Daniel Fusaro

Clerk.