Petition — Beck v. United States

———

Supreme Court, U. & ~

79-1579 | FiLeD

APR 9 1980

IN THE

MICHAEL RODAK, JR. CLERN

D STATES

SUPREME COURT OF THE UNITE

FEA = women oe Rone Lor Tete Jee ee

OCTOBER TERM 1980

No. A-781

LOUIS BECK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

tnt nap nnn ones on

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

THEODORE F. SCHWARTZ

BARRY S. GINSBURG

7701 Forsyth, Suite 560

Clayton, Missouri 63105

Attorneys for Petitioner

INDEX

Page

Jurisdiction 2

Questions Presented for Review 2

Statement of the Case 3

Conclusion 28

Appendix A (Opinion) 30

Appendix B (Order) 55

Appendix C (Order Extending 56

Time to File

Petition for

Certiorari)

'

;

E

CASES CITED

Alford v. United States, 282 U.S. 687

(1931).

Barber v. Page, 390 U.S. 129 (1968).

Brookhart v. Janis, 384 U.S. 1 (1966).

California v. Imbler, 400 U.S. 865 (1970).

Davis v. Alaska, 415 U.S. 308

Giglio v. United States, 405 U.S. 105

(1971).

Greene v. McElroy, 360 U.S. 474 (1959).

Hamric v. Bailey, 386 F. 2d 390

(4th. Cir. 1967).

Imbler v. Craven, 298 F. Supp. 795

[C.0. Ca. 2963).

Kirby v. United States, 174 U.S. 47

(1899).

Maddox v. United States, 156 U.S. 237

(1895).

McConnell v. United States, 393 F. 2d

404 (5th. Cir. 1968).

Napue v. Illinois, 360 U.S. 264

(1959).

Smith v. Illinois, 390 U.S. 129 (1968).

Turner v. Ward, 321 F. 2d 918

(10th. Cir. 1963).

United States v. Bohle, 445 F. 2a 54

(7th. Cir. 1971).

United States v. Harris, 498 F. 2d 1164

(3rd. Cir. 1974).

United States v. Young, 419 U.S. 1069

(1974).

IN THE

SUPREME COURT OF THE UNITED STATES

OC eE 1980

NO. A-781

LOUIS BECK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

Seventh Circuit

LOUIS BECK, your petitioner, respectfully

prays that a Writ of Certiorari be issued to

review the Judgment of the United States Court

of Appeals for the Seventh Circuit entered

in the above entitled cause on January y

1980.

JURISDICTION

The Judgment of the United States Court

of Appeals for the Seventh Circuit was entered

on January 2, 1980. The Court of Appeals

denied appellant's Motion for Rehearing and

Rehearing en banc on February 8, 1980.

The jurisdiction of this Court is invoked

under 28 U.S.C. 81254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Was the defendant deprived of his

Sixth Amendment rights when the trial judge

required defendant's counsel to conduct cross-

examination of witnesses outside the presence

of the jury prior to conducting the cross-

examination in the jury's presence.

II. Was the Due Process Clause of

the Fifth Amendment violated when the

prosecutor allowed testimony to be presented

at trial that created a false impression

of facts known not to be true.

STATEMENT OF THE CASE

On July 24, 1978, the defendant, Louis

Beck, and Diversified Realty Investment

Corporation, proceeded to trial in the

United States District Court, Eastern

District of Wisconsin, before the Honorable

Robert W. Warren and a jury of twelve. The

prosecution was by way of Indictment for

violation of Title 18, 81341 and 82, the

Mail Fraud Statute. The eleven count

Indictment charged a scheme to defraud

through the sale of parcels of land in

Cochran County, Texas.

On August 1l, 1978, the jury returned

a verdict of guilty on each count. On

August 21, 1978, the defendant filed his

Motion for New Trial or in the Alternative

to Enter Judgment of Acquittal and same was

overruled on November 28, 1978.

On November 28, 1978, the defendant

timely filed his Notice of Appeal to the

United States Court of Appeals for the

Seventh Circuit. On January 2, 1980, the

Court of Appeals affirmed the conviction.

In the trial below, the district judge's

actions at a very.early point in the trial

severely hampered the defendant and denied

him a fair trial. During the cross exam-

ination of the third Government witness,

the assistant United States Attorney requested

that the judge stop the defense counsel

from questioning the Government witness regarding

any prior testimony the witness may have

given. The United States Attorney argued

that if counsel desired to cross-examine

the witness regarding any prior testimony

that he might have given, that he do so

outside the presence of the jury.

At this point, the Court engaged in

the following dialogue outside the presence

of the jury:

"The Court: I think that one it

is, I think there is enough danger

of prejudicial inference arising so

that to let the defense counsel ask

a whole series of witnesses that

question in front of a jury is

something that Tt ought not to permit

unless there is some reasonable belief

that there has been some testimony

elsewhere that we are not aware of,

that being the case, I would instruct

counsel that if he wishes to ask

that question it should be asked outside

the presence of the jury and we will

give him an opportunity to do so.

Mr. Schwartz: (defense counsel) There

is an additional question that I

asked of the last witness and came

in without objection and I have

asked if they have ever testified

anywhere else in this matter and I

would like to continue that course of

examination. I don't know if they have

testified to a Regulatory Land Commission,

I don't know if they have testified anywhere

else, they might have given statements

to a newspaper reporter that I would

probably be entitled to jet subject

to putting the reporter in jail for

failure to turn them over but,

THE COURT: I see the same problem

there, I think if you are going to ask

the question why you can't ask them

both at the same time.

MR. SCHWARTZ: But, Judge, I don't

know why I would be prohibited from

asking that in front of the jury. This

is part of the trial, and I think this

is part of the right to an open, public

trial and I think by you requiring me to

ask that in a chamber proceeding

outside...

THE COURT: Are you talking about the

second question?

MR. SCHWARTZ: The second question, I think

is a legitimate cross-examination.

THE COURT: Have you ever testified?

MR. SCHWARTZ: In isieah vt matter.

THE COURT: On this subject?

MR. SCHWARTZ: On this subject and I

think I'm entitled to this, if the

Court instructs me not to do it, I

think you have unduly restricted my right

of cross-examination.

MR. KRAVIT: (U.S. Attorney) But, your

Honor, if the question is asked outside

the presence of the jury and there is any

indication whatsoever that there is

such testimony, then we don't have any

objection to putting it in front of

the jury, same question, same answer,

but if the answer is no, then the only

inference, the only inference (sic) can

possibly be is that there is something

wrong with the way these proceedings were

put together.

THE COURT: I'm going to adhere to my

position, Mr. Schwartz. In the future,

that may mean that you go down and

talk to the gentlemen in Chicago.

MR. SCHWARTZ: It might well be. Okay

your Honor. Just to be perfectly

clear now on your instruction, is it

your position that I cannot cross-

examine the witness as to whether or

not he testified to any other proceeding

concerning this matter in the presence

of the jury?

THE COURT: Uh huh.

MR. SCHWARTZ: Okay. At this time,

your Honor, I would like to be continuing

that I would like to move for mistrial

on the grounds that you are unduly

restricting my Constitutional right

of cross-examination in the presence

of the jury. I don't think I can be

compelled to a star chamber proceeding

out of the presence of the jury ona

-8-

matter that is extremely relevant at this

time. I move for mistrial... ."

From that point forward, the trial judge

did not allow defense counsel to cross-examine

prosecution witnesses regarding any prior

testimony they might have given in any forum.

Later in the trial, a key prosecution

witness testified. Upon cross-examination

the witness was asked the following questions

by defense counsel in an attempt to expose

his motives for testifying:

Q. As a matter of fact, you were

asking for immunity jn an indictment you had

in Florida, were you not?

A. What was that, Sir?

Q.. You were asking for immunity

in an Indictment you already had in Florida?

A. I was not indicted in Florida,

Sir.

Q. You were not?

A. No, sir.

Q. Did you work for the

Equitable Development Company?

As. -1 @aas

Q. You were not a party to that?

A. I was not indicted.

Q. Well, then, is that part

of the immunity you were talking about?

A. No, sir, the Equitable

Development case was the Company that I

previously worked for that went bankrupt but

no Indictment was issued against me.

Several days after the prosecution

witness, Mr. Green, had so testified,

counsel for defendant obtained and produced

a sixty-four Count Information filed against

Mr. Green in a Florida State Court. During

the period of cross-examination of Mr.

Green, wherein he indicated that he had not

been indicted, John Halberg, the investigating

postal inspector in the case was present

at the prosecution table and heard Mr. Green

testify. Neither the postal inspector,

Halberg, nor the Assistant U.S. Attorney

-10-

made any effort at that point to correct

the testimony of Mr. Green which they knew

at the time gave the jury a false impression,

for they knew that Mr. Green had a sixty-four

count Information pending against him.

Defense counsel at this point moved

for a mistrial and same was denied. The

trial then proceeded as aforesaid with the

resulting jury verdict.

ARGUMENT

The following discussion will amplify

the reasons why this Court should review

on Writ of Certiorari the decision of

the courts below. The issues involved herein

concerned the application of the Fifth

and Sixth Amendments to the United States

Constitution and their effect on the rights

of the defendant at trial.

The decision below is in conflict with

an earlier decision of the same circuit and

-ll-

" ~

conflicts in other regards to the decisions

in various circuits throughout this country.

These issues are of special importance to

the trial bar at large for they concern the

extent to which the trial court is permitted

to suppress the rights of the defendant as

guaranteed by the United States Constitution.

It should be noted that the court below's

reasoning and result is in direct conflict

with cases emanating out of this Court

concerning the same subject matter and this

will be set forth herein.

I.

In the early case of Kirby v. United

States, 174 U.S. 47, (1899), the Supreme

Court described the Sixth Amendment right

of confrontation as:

"One of the fundamental guarantees

of life and liberty, and a right

long being so essential for the

due protection of life and liberty

that it is guarded against

Legislative and Judicial action

by provisions in the United States

o19=

ROK rune .

Constitution and in the constitutions

of most if not all of the states

composing the Union."

In Greene v. McElroy, 360 U.S. 474 (1959),

this Court stated that the confrontation clause

and the right of cross examination:

“have ancient roots... .

This court has been zealous to

wrotect these rights from

erosion. . ."

Faced with the solid and lasting pre-

cedents, it is inconceivable how this Court

can let stand the actions of the district

court in denying an accused his basic right

to cross examine and confront the witnesses

against him. In essence what is occurring

herein is the judicial erosion of the

Constitutional guarantees as set forth and

defined by the decisions of this court.

In the instant case, counsel for defendant was

attempting to elicit facts peculiarly within

the knowledge of the witnesses, but he was

cut off at the threshold by the Judge. The

judge stated that unless counsel for

-13-

defendants could providethe Court in

advance with what he expected the witness

to say, he would not allow said questions

to be asked.

This requirement imposed by the

trial judge was not supported by the

law and only had the effect of further

denying the defendants their Sixth Amend-

ment right of cross-examination. The

case of Alford v. United States, 282

U.S. 687 (1931) provides the foundation

for this area of the law, wherein it

is stated:

"Counsel often cannot know

in advance what pertinent facts

may be elicited in cross-

examination. For that reason

it is necessarily exploratory."

For the trial court below to forbid

the most rudimentary questioning and halt

the defendant's inquiry at the threshold,

effectively emasculated the defendant's

right of cross-examination. The trial

court in preventing defense counsel from

-14-

questioning the witnesses about any

prior testimony in the matter prevented

counsel from exposing to the jury facts

from which they as triers of fact and

credibility could draw inferences relating

to the reliability of the witnesses and

such actionamounted to an abuse of

discretion and prejudicial error. It

is apparent that the prejudice to the

defendant by the trial court's action

was magnified in this case due to the

nature of the testimony used by the

Government. As often stated by this

Court,

"Certain principles have

remained relatively immutable

in our jurisprudence...

the evidence used to prove

the Government's case must be

disclosed to the individuals

so that he has an opportunity

to show that it is untrue.

While this is important in

the case of documentary evidence,

it is even more important

where the evidence consists of

the testimony of individuals

whose memory might be faulty

-15-

or who, in fact, might be

perjurers or persons motivated

by malice, vindictiveness,

intolerance, prejudice or

jealousy. We have formalized

these protections in the

requirements of confrontation

and cross-examination... .

by the Sixth Amendment to the United

States Constitution. For the trial

judge to remove such a tool from counsel's

" . arsenal was "Constitutional error of

Greene v. McElroy, 360 U.S. 474 (1959). the first magnitude and no amount of

As a result of the trial court's actions showing of want of prejudice would

cure it". Davis v. Alaska, 415 U.S.

in foreclosing defense counsel from

308 318; Brookhart v.Janis, 384 U.S.

cross-examining the witness, the defendant

was not permitted this safeguard and 1, 3 (1966).

was in essence denied a fair trial. This court has held on many

Another Constitutional protective occasions that:

"It is the essence of a

fair trial that reasonable

latitude be given the

cross~-examiner ... ."

feature of cross-examination that was

denied the defendant was the opportunity

to reveal possible biases, prejudices ;

P 4 er oe Smith v. Illinois, 390 U.S. 129 (1968).

or ulterior motives of the witnesses as :

In the instant case, the Court's actions

they may relate to a state of mind of

were unreasonable and the Constitutional

the witnesses at some former t:ime. pies.

error was magnified when the Court not

Questions by defense counsel seeking to aye

y g only prohibited the counsel for the

elicit information and facts concerning

defendant from cross-examining the jurors

any prior testimony could have been a

significant tool in the hands of skilled

defense counsel. This “tool" is provided

-l17-

-16-

but went further in seeking to force

the defendant te waive his right to a

public trial by conducting the trial

behind closed doors.

The trial court stripped the defendant

of his Constitutional right of confron-

tation as guaranteed by the Sixth

Amendment of the United States Consti-

tution when he required that the defense

counsel conduct a "dress rehearsal" of

cross-examination outside the presence

of the jury. Such a practice has not

been approved by this Court and in fact,

this Court has recently stated that the

right of an accused in a criminal pros-

ecution to be confronted with the witnesses

against him means more than being allowed

to confront the witnesses physically.

-18-

Davis v. Alaska, 415 U.S. 308 (1974).

The confrontation clause not only

provides for the cross-examination of

witnesses but also provides for,

"Personal examination and

cross~examination of the

witness in which the accused

has an opportunity not only

of testing the recollection

and sifting of the conscience

of the witness, but of

compelling him to stand face

to face with the jury in order

that they may look at him

and judge by his demeanor

upon the stand and’ the manner

in which he gives testimony

whether he is worthy of

belief."

Barber v. Page, 390 U.S. 719 (1968);

Maddox v. United States,156 U.S. 237

(1895).

In the instant case, counsel for

the defendant sought to ask the witness

upon cross~examination whether or not

they had ever testified anywhere else

in this matter. The United States

Attorney requested that the Judge order

-19-

these questions to be answered outside

the presence of the jury and suggested

that counsel for defendant ask the question

first outside the presence of the jury

and if a favorable response was obtained,

then to bring the jury back into the

courtroom and ask the question of the

witness once again.

The trial judge was swayed by the

Government's erroneous and illogical

argument and ordered counsel for defendants

to ask the questions solely outside the

presence of the jury. It is clear that

by requiring cross-examination of Govern-

ment witnesses outside the presence of

the jury, the defendant was denied the

essence of a fair trial. Alford, supra,

at 692. Additionally, it is of particular

relevance that the questions sought to

-20-

be asked by defendant's counsel concerned

"prior testimony" that might have been —

given by the Government witness. Not

allowing this line of questioning flies

in the face of the well established

rule that:

"In criminal cases, great

latitude is generally

permitted in the cross-examination

of a prosecution witness in

order to test his credibility.

Especially as_ to any prior

inconsistent statement which

could be used in an effort

to impeach him".

United States v. Bohle, 445 F. 2d 54

(7th. Cir. 1971); McConnell v. United States,

393 F. 2d 404 (5th. Cir. 1968). In the

instant case, the only way for counsel to

learn of prior statements was to ask

the witnesses if any were made and in

the instant case, the defendant was

denied that right. In Bohle, as in the

instant case, the trial judge ordered

that defens© counsel cross-examine a

«21 =

prosecution witness outside the

presence of the jury about a prior

statement she made. Bohle, supra, at

74. Upon appeal, the Seventh Circuit

held that the trial judge in ordering

defense counsel to conduct his cross-

examination outside the presence of

the jury denied the defendant his funda-

mental right of cross-examination and

confrontation. The Court therefore

granted a new trial to the defendant.

Bohle, supra, at 75.

In the instant case, as in Bohle, the

trial judge attempted to force the

defendant to conduct his cross-examination

of prosecution witnesses outside of

the presence of the jury despite the

defendant's Constitutional right to have

the trial conducted before the jury.

The Seventh Circuit in Bohle, in condemning

the procedure whereby witnesses were

~~ on

questioned first outside the presence

of the jury and then brought before the

jury stated:

Bohle,

"The witness was permitted

time by the voir dire

procedure to consider her

answer and to eliminate

any reaction of surprise to

the alleged impeaching

material out of the presence

of the jury. Such a practice

would appear to have a strong

tendency to undermine the

function of confronting the

witness with the question in

the first place. The loss to

the jury of the witness's

initial and immediate

response is accompanied by the

loss of one potentially

significant aspect of the

credibility determination."

Supra, at 75.

The rationale of the Bohle case,

is sound and vital to our system of

jurisprudence. In the instant case,

the Seventh Circuit ignored the holding

in Bohle and allowed the very same

procedure which they had at an earlier

point condemned to establish itself as

-23-

precedent in the federal courts of this

country. Under these circumstances, it

is crucial that this court review the

matter and determine that such a procedure

abrogates the defendant's Constitutional

rights to such a degree that it should

not be permitted.

II

On Thursday, August 3, 1978, the

Government called Lester Green to the

stand to testify on behalf of the

Government. After testifying on direct

examination, he was asked questions on

cross-examination by counsel for the

defendant regarding his motivation for

testifying. (See Statement of Case) On

Monday, August 7, 1978, counsel for the

defendant moved for a mistrial. The

basis for the Motion for Mistrial was

that subsequent to Mr. Green's testimony

~24-

and after he had been dismissed as

a witness and left the State, counsel

obtained a verified and certified copy of

a sixty-four count Information filed

against Mr. Green.

The importance of the certified

Information is clear for it reveals

that Lester Green was not honestly answering

the questions submitted to him on cross-

examination. The Government took the

position that the statement in question

may have been misleading but that it was

literally true. In essence, the Government

has admitted that the testimony was mis-

leading and would therefore create a

false impression. Under these circumstances,

many circuits have ruled that the defendant's

due process rights under the Fifth Amendment

were violated by the use of such evidence.

Imbler v. Craven, 298 F. Supp. 795 (C.D.

Ca. 1969), aff'd, 424 F. 2d 631 (Sth. Cir.

28s

1969), cert. den. sub nom., California

v. Imbler, 400 U.S. 865 (1970); Turner

v. Ward, 321 F. 2d 918, 920-921 (10th. Cir.

1963); Hamric v. Bailey, 386 F. 2d 390,

394 (4th. Cir. 1967); United States v.

Harris, 498 F. 2d 1164, 1168-9 (3rd. Cir.

1974), Cert. den. sub nom. United States

v. Young, 419 U.S. 1069 (1974).

These cases are all in line with

this Court's decisions interpreting the

Due Process Clause of the Fifth Amendment.

Giglio v. United States, 405 U.S. 105,

153-4 (1971); Napue v. Illinois, 360 U.S.

264 (1959).

In the instant case, the Seventh Circuit

determined that Mr. Green's testimony was

“literally true" therefore they were not

compelled to determine the effect of the

testimony. In essence though, they have

conceded that Mr. Green's testimony was

"misleading". Under these circumstances,

-26=

it is clear that the Fifth Amendment

would not tolerate the use of literally

true testimony which in effect is as misleading

and false as would be an absolute lie.

The cases construing the Fifth Amendnient 's

constraint on the Government's use of

false evidence to obtain convictions concern

themselves with the fact that under our

system of justice, a trial must be

conducted so as to be a "fair trial", In -

Napue, this Court held that:

"A lie is a lie no matter what

its subject, and if it is in

any way relevant to the cas3e,

the district attorney has a

responsibility and a duty to.

correct what he knows to be

false and elicit the truth...

that the district attorney's

silence was not the result of

guile or a desire to prejudice,

matters little, for its impact

was the same, preventing, as

it did, a trial that could in

any real sense be termed fair."

Napue, supra, at 70.

In the instant case, the Seventh

Circuit is in effect ignoring the dictates

-27-

of the Fifth Amendment when they declare

that they will permit literally true

but misleading evidence to be used to

obtain convictions in the federal district

courts. Under these circumstances, the

courts are playing semantic games with

the heretofore solid principles established

by this Court. The effect of using

evidence that is misleading and evidence

which creates false impressions before the

Jury is the same as permitting evidence

which is patently false on its face. The

effect is that the jury is misled by the

acts of the Government and such behavior

has not and should not be tolerated in

this court system.

CONCLUSION

Based upon the discussion herein

and the authorities cited, it is incumbent

upon this Court to grant Certiorari to

-28-

review this case and its ramifications

upon the Federal Courts.

LAW OFFICES OF THEODORE SCHWARTZ

THEODORE F. SCHWARTZ

BARRY S. GINSBURG

7701 Forsyth, Suite 560

Clayton, Missouri 63105

863-4654

Attorneys for Petitioner

-29=

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued: October 25, 1979

January 2, 1938

Before

Hon. Robert A. Sprecher, Circuit Judge

Hon. Francis L. Van Dusen, Senior

Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

Appeal from

the United

States District

Court for the

Eastern District

of Wisconsin.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 78-2513 vs.

LOUIS BECK and DIVERSIFIED REALTY

a

INVESTMENT CORPORATION, No. 78 CR 19

Defendants-Appellants. Hon Robert W.

Warren

ORDER

Appellants Louis Beck and Diversified

Realty Investment Corporation (the "company")

were convicted of eleven counts of mail fraud

under 18 U.S.C. 81341 and 82. Louis Beck

«90

owned the Company and was its President. The

indictment alleged a mail fraud scheme involving

sales and attempted sales of parcels of

undeveloped land in Cochran County, Texas.

Essentially the scheme described in the

indictment concerned the purchase of 1,500

acres of undeveloped land at $60.00 per acre

for a total of $90,000 and its subsequent

offering for sale at $1,145 per acre, or

$5,725 for a five acre parcel. Sales of

land in question were promoted by the sending

of sales materials through the mails to pros-

pective purchasers in various parts of the

United States. Further, telephone land

salesmen were used to make calls to potential

purchasers, including prospects in Wisconsin.

The undeveloped Texas land was ultimately

promoted in five-acre parcels as "Tierra del

Oro Estates -- The Golden Land." Had all 278

five-acre parcels of undeveloped land which

were available been sold, gross receipts from

me, oe

from sales of the land would have approached

two million dollars. In the event, 96 parcels

were actually sold.

One of the potential Wisconsin customers

reached by appellants' scheme was Dennis Crull,

a resident of Brookfield, Wisconsin, who taped

telephone conversations he engaged in with

a land salesman, who called from Florida.

The tapes of those conversations were played

to the jury. While sales and solicitations

of sales were in progress, the Better Business

Bureau in Lubbock, Texas, received inquiries

concerning the sale of undeveloped Texas land

and recorded on tape a telephone conversation

with appellant Beck. There was testimony

that Beck, in addition to supervising all

sales of the land in question, made some sales

and some telephone representations himself.

Appellants halted sales of the Texas

land when they became aware of unfavorable

o32-

publicity in the Milwaukee, Wisconsin, area

and of the fact that a grand jury subpoena

had been served at appellants’ bank in Miami,

Florida, in late November, 1977. Not long

thereafter certain principal investors in

the project, as well as some customers, became

aware of the questionable character of the

land offered for sale.

There was evidence of misrepresentations

made, or caused to be made, by or with the

knowledge of, appellants in five areas:

mineral interests in the property; interest

by oil companies in purchasing the property;

agricultural capability of the properties;

equity or enhanced value over cost inhering

in the property as a result of its alleged

acquisition through repossession or as a result

of a divorce of relating to forfeiture; and

misleading information as to the distances

involved and as to “the location of the

property and of the developer.

In general, the alleged scheme to

defraud through sale of relatively cheap,

undeveloped land at highly inflated prices

through fraud and misrepresentation was a

classic land swindle. Appellants have

alleged eight errors by the District Court .

in the course of trial, all of which we find

without merit, and we, therefore, affirm the

judgments of conviction.

i

Appellants argue that at trial they were

deprived of their Sixth Amendment rights

because the District Court did not allow

appellants' attorney to ask most of the

prosecution witnesses certain questions in

the presence of the jury. These questions

were: ‘Did you appear before the grand jury

here in Milwaukee?" and "Have you ever

testified in any other matter on this

subject?"

The first witness for the government,

Dennis Crull, had testified before the grand

jury but was not asked any questions about

prior testimony. The government's next two

witnesses, however, who had not testified

before the grand jury, were asked about

prior testimony, and the government objected

to the questions when they were directed to the

second of these two witnesses. Judge Warren

permitted the questions to be asked and

answered. In the case of the fourth govern-

ment witness, however, the government's

objection was sustained with the provision

that the same questions could be put to the

witness or to subsequent witnesses outside

the presence of the jury and, if the witness

indicated that he had testified, further

cross-examination would be conducted in the

presence of the jury. Appellants declined,

in the absence of the jury, to ask questions

with respect to possible prior testimony, and,

instead, moved unsuccessfully for mistrial.

= 9%.

Appellants argue that they had a right to

ask the questions in issue since they did not

know whether the witnesses had made statements

in prior proceedings which might be used to

impeach their present testimony. They also

argue that they are being denied the oppor-

tunity to test the credibility of government

witnesses and to reveal possible prejudice

or ulterior motives of the witnesses as they

may relate to a state of mind of the wit-

nesses at some former time. Appellants

contend that, by excluding from the jury the

cross-examination with respect to the

existence of prior testimony, Judge Warren

deprived them of the opportunity of showing

the jurors the demeanor of witnesses in

unrehearsed responses to the questions since

the witnesses might have been surprised by

such questions or by their implications and

might have reacted spontaneously in a way

« $6

which would go to their credibility.

The position of the government is that,

through the liberal "open file" policy of the

Eastern District of Wisconsin, appellants

have had extensive access to any prior state-

ments of the government witnesses. At oral

argument the government represented that it had

made all prior statements of all its wit-

nesses available to appellants (including

grand jury transcripts twenty-four hours

before trial). The government objected to

the asking of these two questions because

only two of its twenty-six witnesses had

testified before the grand jury and a long

series of negative answers might suggest

that there was something wrong with the

indictment.

The government contends that evidence

showing that very few of its witnesses had

appeared before the grand jury was not rele-

vant since appellant may not attack the

mY

competency and adequacy of the evidence

before the grand jury. The government

' further argues that all available witnesses

need not be called before the grand jury.

It is also argued that appellants were not

deprived of their Sixth Amendment rights

because, if affirmative answers to either of

the questions in issue were received outside

the presence of the jury, further cross-

examination with regard to these prior state-

ments for purposes of impeachment could have

been carried on before the jury.

The extent and scope of cross-examin-

ation are within the sound discretion of

the trial judge. Smith v. Illinois, 390

U.S. i283; i132 (1967). Rulings of the trial

judge in this area "will not be disturbed in

the absence of abuse of discretion." United

States v. Isaacs, 493 F. 2d 1124, 1162

(7th. Cir. 1974), cert. denied sub nom. ,

United States v. Kerner, 417 U.S. 976 (1974),

-38-

reh. den., 418 U.S. 955 (1974). (See also,

Federal Rules of Evidence, 28 U.S.C. Rule

403 and Rule 611.) The trial judge may

sroperly refuse to allow government witnesses

to be asked questions on cross-examination

which "would have presented an inference of

a duty that we have found did not exist."

United States v. Lehman, 468 F. 2d 93, 106

(7th. Cir. 1972), cert. denied, 409 U.S.

967 (1972). Cross-examination may also

be restricted "where it is likely to be more

prejudicial than probative . Hood

v. United States, 365 F. 2d 949, 951-2

(D.C... Cir. 1969).

Judge Warren did not abuse his dis-

cretion to limit the scope and extent of

cross-examination by requiring questions

about the existence of prior testimony to

be asked outside the presence of the jury.

The trial judge certainly could have con-

cluded that appellants" proposed line of

questioning, by evoking a series of negative

-39-

answers from government witnesses, could have

created the impression in the minds of the

jurors that the indictment was infirm. Failure

of witnesses to appear before the grand jury

and the competency and adequacy of the evid-

ence before the grand jury are not appropriate

grounds for attacking the indictment.

Costello v. United States, 350 U.S. 359, 363

(1956); United States v. Eucker, 532 F. 2d

249, 255-256, (2d Cir. 1976).

The appellants’ Sixth Amendment right

to confront and cross-examine the government's

witnesses is an “essential and fundamental

requirement" of a fair trial. Pointer v.

Texas, 380 U.S. 400, 405 (1965). Some res-

trictions, however, not violative of the

Sixth Amendment, may be imposed on the

defendant's right to cross-examine witnesses.

Thus this Court has held that although "great

latitude is generally permitted in the cross-

examination of a prosecution witness in order

-40-

to test his credibility," the defendant's

interest in effective cross-examination

must be balanced against the "interest in

avoiding abuse of that right," which is

typically protected by the exercise of the

trial court's broad discretion in controlling

cross-examination. United States v. Bohle,

445 F. 2d 54 74 (7th. Cir. 1971).

In the instant case, because appellants

chose not to question these prosecution

witnesses outside the presence of the jury

about the existence of earlier testimony,

we do not know whether these witnesses had

testified in other proceedings or, if they

had, whether such testimony varied from their

present testimony. Thus, there is nothing

to show that their initial responses to the

question about any testimony in other

proceedings would have helped the jury assess

their credibility. Further, it was completely

4

rhc

unnecessary for appellants' counsel to ask the

witnesses whether they had testified before

the grand jury because that information was

available before trial. There was, moreover,

a legitimate concern that these questions

would raise an improper inference in the minds

of the jurors which could lead them to question

the sufficiency of the indictment.

Under all the circumstances, the res-

triction imposed on the appellants did not

violate their Sixth Amendment rights because

the potentially probative value of the wit-

nesses' initial responses was outweighed

by the interest in avoiding an irrelevant

and improper inference from the Line of

questioning. The risk that the jury might

improperly infer that the indictment was

irffirm because most of the witnesses did

not appear before the grand jury was real.

And Judge Warren's rulings reflect an appro-

priate weighing of the probative value of

en

“

any evidence likely to be elicited against

the danger of unfair prejudice or confusion demeanor evidence was far less clear. We,

of the issues or the misleading of the jury. therefore, reject the contentions of the

See Federal Rules of Evidence, Rule 403. ‘ appellants that the District Court's ruling

In United States v. Bohle, supra, this violated appellants’ Sixth Amendment rights.

Court held that it was improper to require Il

that an important government witness be Appellants also argue that Judge

asked about prior inconsistent statements Warren failed to grant a mistrial based

outside the presence of the jury. The upon alleged false statements of a government

lower court in Bohle had allowed questioning witness known by the prosecutor or his agent

away from the jury because it feared that to be false but not corrected by them at

defense counsel would not follow up these trial. The statements in question were

foundation questions with extrinsic evidence those of government witness, Lester Green,

of prior inconsistent statements. Since the who on cross-examination was asked certain

foundation questions in Bohle were asked questions by appellants' counsel allegedly

outside the presence of the jury, the reflecting his motives for testifying, as

jury was unable to see the witness' initial follows:

response. This Court applied the balancing "Q. And as a matter of fact, you

were asking for immunity in an

test and concluded that the restriction indictment you had in Florida,

were you not?

violated the Sixth Amendment. In the instant

A. What was that, sir?

case, however, the potential for abuse was . Q. You were asking for immunity in

an indictment you already had in

greater, and the probative value of the ; Florida?

A. I was not indicted in Florida,

sir.

nh Se

You were not?

No, sir.

Did you work for the Equitable

Development Company?

I did.

You were not a party to that?

I was not indicted.

Well, then, is that part of the

immunity you were talking about?

No, sir, the Equitable Development

case was the Company that I pre-

viously worked for that went bank-

rupt, buc no indictment was issued

against me."

> OPOP> OPO

After Mr. Green had so testified,

appellants obtained and produced a sixty-four

count information filed against Green in a

Florida state court.

Appellants allege that John Hollberg,

the investigating postal inspector in the

instant case, was siting in the court room

at the time the testimony was given and

that he knew Mr. Green's statement to be

untrue. The alleged false testimony was

given on a Thursday, but counsel for the

appellants did not move for a mistrial until

the following Monday. The government argues

~45-

that the statement in question may have been

misleading but that it was literally true,

even if non-responsive. Most significantly,

further questions might have been asked by

defense ¢ounsel which would have required

witness Green to tell the whole truth. The

government also argues that the record does

not disclose whether postal inspector Hollberg

was present inthe court room at the time the

alleged false testimony was given.

A new trial would be required if the

prosecutor knowingly presented false evidence

which could reasonably have affected the jud-

gment of the jury; the use of such evidence

violates the due process clause of the Fifth

Amendment. Giglio v. United States, 405 U.S.

105, 153-4 (1971). A defendant's right to due

process would also be violated if the prosecutor

failed to correct false evidence even though

he had not solicited it and it was relevant only

to the witness's credibility. Napue v.

-46-

Illinois, 360 U.S. 264, 269 (1959). In

implementing this aspect of Fifth Amendment

protection, this Court has noted that

"perfection in this regard cannot always be

realistically expected" and that therefore

the ‘test to be applied in cases wherein

prosecutorial misconduct is simply alleged is

whether the accused was insured of andaccorded

the genuine fairness to which he was entitled

during the progress of the trial." United

States v. Marrero, 516 F. 2d 12, 14-15

(7th. Cir. 1975), cert. denied, 423 U.S. 862

(1975).

In this case, the testimony of the

government's witness was literally true though

it was not essentially responsive to the

questions. (Cf. Teague v. United States,

499 F. 2d 1381, 1385 (7th. Cir. 1974).)

Appellants' counsel could have persisted in

cross-examining the witness so that there

would have been a full response to the

1kFe

questions, but he failed to do so. Under

these circumstances, the prosecutor's failure

to clarify the record did not deprive the

appellants of "genuine fairness" within the

meaning of the Fifth Amendment because the

testimony was not’ false and because the

appellants' attorney could have clarified

the record by effectively cross-examining

the witness.

Several cases contain language to the

effect that a prosecutor must correct testimony

which is "substantially misleading" or

"creates a false impression of facts known not

to be true." Imbler v. Craven, 298 F. Supp.

795, 806 (C.D. Ca. 1969), aff'd. 424 F. 2d

631 (9th. Cir. 1969), cert. denied sub non,

California v. Imbler, 400 U.S. 865 (1970)

Turner v. Ward, 321 F. 2d 918, 920-21 (10th.

Cir. 1963); Hamric v. Bailey, 386 F. 2d 390,

394 (4th. Cir. 1967); United States v. Harris,

-48-

498 F. 2d 1164, 1168-9 (3rd. Cir. 1974),

cert. denied sub nom., United States v.

Young, 419 U.S. 1069 (1974). Each of these

cases, however, may be distinguished from the :

instant case because none of them involves

literally truthful but non-responsive testi-

mony elicited during cross-examination

which could have been clarified by further

questioning. Rather, each of these cases

involves testimony which was indisputably

false and was therefore misleading. Even if

the testimony in the instant case were consid-

ered misleading, it would be misleading only

because appellants' counsel failed to make

the witness respond fully to the question.

Thus, on the facts of this case, we

do not perceive any clear duty of the government

to step forward to clarify the record. Even

assuming that inspector Hollberg was present

(and we believe that such an assumption was

-49-

not wholly unreasonable), we do not believe

that there is anything about this incident

which would have required a mistrial.

te

Further, we do not believe there was

anything erroneous about the following

question propounded by the government of

appellant Beck:

‘"Now, isn't it a fact that, Mr. Beck,

that you at one time in 1977 threatened

to lie regarding the sale of Tierra

del Oro?"

When, after objection, Beck was permitted

to answer the question before the jury his an-

swer was as follows:

"I believe I threatened to tell the

truth under oath about the Tierra

del Oro Estates."

Appellants argue that the question had the

effect of implying that Beck was a liar,

thereby prejudicing him in the eyes of the

jury. Appellants further argue that no

proper foundation was laid for the question.

-50-

In our opinion there was enough foundation

incorporated in the question (as the answer

suggests) to enable the witness to reply

intelligently. See United States v. Marzano.

537: T. 2d 257; 265: C7th. Cir. 1976), cert.

denied, 429 U.S. 1038 (1977). Further, the

question was not unduly prejudicial within

the meaning of 28 U.S.C. Rule 403.

IV

Appellants also contend that the illness

of a juror, R. C. Lee, which necessitated a

delay in jury deliberations, ultimately had

the effect of coercing the jury into rendering

a verdict. Appellants argue that the jury

verdict was reached in an effort to spare the

ill juror more discomfort arising from his

confinement with a sequestered jury. Cf.

United States v. Pleva, 66 F. 2d 529, 533

(2nd Cir. 1933). In our opinion the circum-

stances surrounding the sick juror here were

-5l-

considerably less severe than those involved

in United States v. Hall, 536 F 2d 313, 321-

324 (10th Cir. 1976) cert. denied, 429 U.S.

919 (1976), where a motion for mistrial was

denied. We find that the circumstances

surrounding the illness of juror Lee in this

case resulted in no prejudice to appellants

and that the motion for mistrial was properly

denied.

V.

Nor do we find error in the District

Court's refusal to allow the prosecutor to

be called as a witness in connection with

an alleged agreement not to prosecute certain

other persons involved in the case. There is

no evidence in the record that such an

agreement had been made, and in any event,

a decision whether or not to prosecute is a

matter properly within the discretion of the

prosecutor. See United States v. Falk,

nS 2n

479 F. 2d 616, 620 (7th. Cir. 1973). It was

also not improper for the court to allow the

jury to hear testimony about statements

made by real estate salesmen which were

attributed to appellant Beck because there

was sufficient evidence to support a finding

that Beck euthorized or ratified those

statements. Cf. Pritchard v. United States,

386 F. 2d 760, 766-767 (8th. Cir. 1967),

cert. denied sub nom., Borchelt v. United

States, 390 U.s. 1004 (1967). Additionally,

we are of the view that the District Court

properly instructed the jury and did not

err in refusing to give certain instructions

proffered by appellants. United States v.

Zarattini, 552 F. 2d 753 (7th. Cir. 1977),

cert. denied, 431 U.S. 942 (1977); Stewart

v. United States, 418 F. 2d 1110, 1114

(D.C. Cir. 1969); United States v. Kirk,

534 F. 2d 1262, 1280 (8th. Cir. 1976), cert.

denied sub nom., Green v. United States,

-53-

430 U.S. 906 (1977).

Affirmed.

oSh«

APPENDIX B

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 8 19 80

Before

Hon, —_ROBERT_A. SPRECHER, Circuit Judge

Hon, _FRANCIS L. VAN DUSEN, Senior Circuit Judge*

Hon.

RICHARD D. CUDAHY, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No, 78-2513 vs. | of Wisconsin

LOUIS BECK and DIVERSIFIED REALTY 78-Cr-19

INVESTMENT CORPORATION,

Defendants~-Appellants.

4

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-

entitled cause by defendants-appellants, no judge in

active service has requested a vote thereon, and all of

the judges on the original panel have voted to deny a

rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing

be, and the same is hereby, DENIED.

*

The Honorable Francis L. Van Dusen, Senior Circuit

Judge of the United States Court of Appeals for the Third

Circuit, sitting by designation.

-55-

FP MAR——18 .12-76-18.1181

) Appeal from the United

States District Court

for the Eastern District

Robert W. Warren, Judge.

APPENDIX C

Supreme Court of the United States

No. A-781

LOUIS BECK, ET AL.,

Petitioners,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIDERATION of the application of counsel for petitioner(s),

It Is OrpDERED that the time for filing a petition for writ of certiorari in

the above-entitled cause be, and the same is hereby, extended to and including

April 9 19.80

/s/ John Paul Stevens _

ee ee aa

Dated this 11

day of ____ March 19__80

-56-