# Petition — Beck v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1964%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 940

## Text

———

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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1964%3A1. Public record. Not legal advice.