Petition — Michienzi v. United States

8 0 = 9 sy 0 Supreme Court, U.S.

FILED

No DEC 15 1980

MICHAEL RODAK. JR., CLERK

IN THE .

Supreme Court of the United State

OcTOBER TERM, 1980

FRANCESCO MICHIENZI AND AUDREY F. MICHIENZI,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

EDWARD BENNETT WILLIAMS

Counsel of Record

HAROLD UNGAR

CHARLES H. WILSON

Hill Building

Washington, D.C. 20006

(202) 331-5000

Counsel for Petitioners

Of Counsel:

LEONARD J. CATRI

GEorRGE A. HOWELLS

165 East Washington Row

Sandusky, Ohio 44870

(419) 625-8735

ROE NAG TORN a TERRI re ann

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether the trial court deprived the petitioners of

their Sixth Amendment right to confront a key prosecu-

tion witness against them by restricting the scope of

cross-examination of that witness in a manner that is in

direct conflict with this Court’s decisions in Alford v.

United States, 282 U.S. 687 (1931), and Smith v. Illinois,

390 U.S. 129 (1968).

2. Whether the judicial misconduct of displaying a

personal friendship with a prosecution witness was suffi-

ciently dealt with below by reversal of the conviction on

the one count to which the witness testified, ignoring the

likelihood that, by enhancing the credibility of that

witness, the trial judge denigrated the credibility of the

petitioner’s exculpatory testimony and thus deprived the

petitioners of their right to a fair trial guaranteed by the

Due Process Clause of the Fifth Amendment.

TABLE OF CONTENTS

PAGE

CAI oe ea rime eee edee eh anaes l

I soso kk: 65s asa bed Si RIN WA OLEH ca CRON 0 Bie 2

CONSTITUTIONAL PROVISIONS INVOLVED ...........+000+5 2

DEATIOET ED TAM bic i ioc se Dek 6 ee ewes 3

1. The Limitation Of The Right

OF CHOGS-EROTIEMATIOR 665 ors ce cei hice cece'ses 3

2. The Misconduct Of The Trial Judge ........... 7

REASONS FoR GRANTING THE WRIT ............00000 005 8

CRN ort BLA So a bee e RGN V aN Wis ae Rak ea wen 15

PES Fo hice ok oe ied bubs wen ON Sleds pe vowed sees la

TABLE OF AUTHORITIES

CASES:

Alford v. United States, 282 U.S. 687 (1931) ......... i, 4, 7-13

Davis v. Alaska, 415 U.S. 308 (1974) ...............045. 7,9

Hartzell v. United States, 72 F.2d 569 (8th Cir. 1934) ..... 11

Quercia v. United States, 289 U.S. 466 (1933)............ 8, 13

Reynolds v. United States, 98 U.S. 145 (1878) ........... 14

Smith v. Illinois, 390 U.S. 129 (1968) ............ i, 7,9, 11-12

Starr v. United States, 153 U.S. 614 (1894) .............. 13

United States v. Alston, 460 F.2d 48 (Sth Cir. 1972) ...... 12

United States v. Caudle, 606 F.2d 451 (4th Cir. 1979) ..... 11

United States v. Cavallaro, 553 F.2d 300 (2d Cir. 1977) ... 12

United States v. Fife, 573 F.2d 369 (6th Cir. 1976)........ 12

United States v. Greenberg, 423 F.2d 1106 (Sth Cir. 1970). 11

United States v. Hickman, 592 F.2d 931 (6th Cir. 1979)... 13

United States v. Hoker, 483 F.2d 359 (Sth Cir. 1973)...... 13

ge)

v3...

=

iv

Table of Authorities Continued

CASES: PAGE

United States v. Ott, 489 F.2d 872 (7th Cir. 1973) ........ 12

STATUTES:

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UNITED STATES CGNSTITUTION:

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Sixth Amendment ..... beeen eee eee be eee ceneneceess 2

in a

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

FRANCESCO MICHIENZI AND AUDREY F. MICHIENZI,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioners, Francesco Michienzi and Audrey F.

Michienzi, pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit, affirming their conviction in the

United States District Court for the Northern District of

Ohio on charges of violating 18 U.S.C. §1001 and 18

U.S.C. §1341 in connection with the submission of

medicare claims.

OPINION BELOW

The opinion of the Court of Appeals, not yet of-

ficially reported, is printed in the appendix to this

petition.

4

*-.s

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JURISDICTION

The Court of Appeals filed its opinion and entered

judgment against the petitioners on September 12, 1980.

A timely petition for rehearing was denied, without

opinion, on October 17, 1980. A copy of the order deny-

ing the petition for rehearing is printed in the appendix

to this petition. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory pro-

cess for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Petitioners, Dr. Francesco Michienzi and his wife,

Audrey F. Michienzi, a registered nurse who aided him

in the operation of his private clinic, were convicted on

three ‘‘Medicare fraud’’ counts: as to a patient named

Beier, a mail fraud count (18 U.S.C. §1341); and, as to

a patient named Darr, a mail fraud count and a false

statement count (18 U.S.C. §1001).' Each of the peti-

tioners was sentenced to a fine of $1,000 on each of the

three counts and to three concurrent five-year terms, six

months to be served and the balance suspended.

Both petitioners appealed their convictions to the

Court of Appeals for the Sixth Circuit. That court

vacated the conviction of both petitioners as to one

count because of conduct of the trial judge (described in-

fra, p. 7) which ‘‘may have lent undue weight to the

testimony given by the witness involved.’’ Finding ‘‘no

reversible error’? as to any of the other points raised

below, the Court of Appeals affirmed the convictions on

the other two counts.

Only two limited areas of the facts of the case need

be stated to elucidate fairly the issues here presented.

1. The Limitation Of The Right

Of Cross-Examination.

A substantial part of the case was made on the

testimony of Rosemary Ging, a former employee of the

' The indictment had charged petitioners with thirty-seven mail

fraud counts and sixteen faise statement counts. All but fifteen of

the counts were dismissed before trial. Those fifteen were submitted

to the jury but, on twelve of them, the jury was unable to reach a

verdict.

re .

4

clinic who had quit when professedly she began to ap-

preciate the dishonesty of petitioners’ practices and to

fear that she might be thought to be involved.’ The trial

court said of her:

‘*I recognize that the question of Miss Ging’s ...

veracity is a very serious question in this case... .”’

Tr. 672.°

In the face of the seriousness of the question of

Miss Ging’s veracity, the government, notwithstanding

the authority of this Court’s decision in Alford v. United

States, 282 U.S. 687 (1931), moved in limine that the

defense be precluded from inquiring on_ cross-

examination where the witness currently resided. The

grounds of the government’s motion were that where the

witness resided at the time of the trial was irrelevant and

that she wished to keep that information from the defen-

dants because she feared them. Tr. 664-66. The defense,

on the other hand, relied on the A/ford line of authority

that a witness may be cross-examined on current

residence as a foundation for evidence of reputation as

to veracity, Tr. 707-08, and pointed out that the trial

court had already held, at an earlier stage of the pro-

ceedings, that Miss Ging had no reasonable basis for her

asserted fear of the defendants. Tr. 664. The trial court

granted the government’s motion upon the grounds that

Miss Ging’s fear, even if unreasonable, was ‘‘the harsh

reality’? and that her current address was totally irrele-

vant. Tr. 666. To the defense contention that the ruling

? About two-thirds of the government’s discussion of ‘‘Deviation

from general practices’’ in its brief in the Court of Appeals

(hereinafter cited as ‘‘Brief’’) was based on Miss Ging’s testimony.

Brief, pp. 4-5.

’ Citations in this petition to ‘‘Tr.’’ refer to the transcript of the

petitioners’ second trial. The first trial ended in a mistrial.

violated both due process and the right of confrontation,

the court replied:

‘You can maintain anything you want in the

record. Those are good arguments for the jury.

They don’t sway me very much.”’ Tr. 667.

To the defense argument that cross-examination as to

current residence is necessary as a foundation for reputa-

tion evidence, the court made the clearly erroneous

reply:

‘‘We’re not concerned with the question of the

witness’ character in some place where she may have

moved to. We’re concerned with her character and

reputation in the City of Sandusky and County of

Erie. ... But what her reputation is in the com-

munity now, whatever that may be, I regard as be-

ing irrelevant.’’ Tr. 707.

The cleer error of the court’s statement is manifest from

the court’s own correct instruction to the jury:

‘*A witness may be discredited or impeached by

evidence that the general reputation of the witness

for truth and veracity is bad in the community

where the witness now resides, or has recently resid-

ed.’’ Supplemental Appendix, p. 19 (emphasis add-

ed).‘

* The prejudicial effect of the judge’s erroneous position may

well have been enhanced, moreover, when almost immediately after

the quoted sentence in the instructions, the judge added, somewhat

ambiguously: ‘‘Evidence that the witness’ reputation for truth and

veracity has not been discussed or, that those traits of the witness’

character have not been questioned, may be sufficient to warrant an

inference of good reputation as to those traits of character.’’ Sup-

plemental Appendix, p. 19. (‘‘Supplemental Appendix’’ refers to

. the Supplemental Appendix filed by the parties with the court

below. That appendix contains, for the most part, the trial court’s

instructions to the jury.)

6

In the course of the cross-examination of Miss

Ging, the government realized that it had inadvertently

disclosed her address to the defense by placing it on a

subpoena. But it succeeded ‘in preventing the defense

from ascertaining from the witness that the address —

one in Knoxville, Tennessee — was hers.’ Tr. 856M.

Then, obviously recognizing that the ‘‘fear’’ basis of the

court’s restrictive ruling had evaporated, the government

attempted to supply an alternative basis for the ruling. It

suggested that the defense, with the court’s permission,

could ask the witness when she had moved from San-

dusky and that, if she had moved so recently as to

preclude the likelihood of having developed any reputa-

tion in her new community, the grant of the in limine

motion would be of no consequence. Tr. 880-81. The

court, however, rejected the suggestion, stating:

“*I believe that her reputation that we’re concern-

ed with is still the reputation in Sandusky, and not

somewhere else, and that if she has a bad reputation

for truth and veracity in Sandusky, you can certain-

ly prove it, and the fact that she has moved from

Sandusky, even if she moved from there six months

ago, wouldn’t make a bit of difference in my judg-

ment as to that issue.

**So far as confrontation is concerned, while I’m

not much on slogans, so if this witness is being con-

fronted, she’s here, you can examine her. But I’m

not going to let you, in spite of’ the Government’s

suggestion as to what they would or wouldn’t object

to, I’m not going to let you ask whether she left

Sandusky.”’ Tr. 882.

* While thus preventing the defense from establishing that Knox-

ville, Tennessee, address, as the current address of the witness, the

government conceded in its brief below that it was. Making a virtue

of necessity, it then argued that the granting of its motion in limine

was of no consequence, for ‘‘they already knew the answer to the

address question they sought.’’ Brief, p. 12.

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In their appeal below from their conviction, peti-

tioners argued that the trial court’s in limine restriction

of the cross-examination of witness Ging was reversible

error under Alford v. United States, supra; see also,

Smith v. Illinois, 390 U.S. 129, 132-33 (1968); and Davis

v. Alaska, 415 U.S. 308, 318 n.6 (1974). The court

below dismissed this argument without discussion,

holding merely that it found ‘‘no reversible error in the

Judge’s evidentiary rulings... .’’ App. at la.

2. The Misconduct Of The Trial Judge.

Another witness important to the government’s case

was Edward Beier. While that witness was on the stand,

the trial judge, in the view of the jury, rose from his

chair, walked to the side of the bench, shook hands with

the witness and engaged him in brief conversation. The

judge then informed the jury: ‘‘Mr. Beier and I are old

friends from Norwalk.’’ Tr. 680. Shortly thereafter, not-

withstanding that defense counsel had made a point of

placing the above facts on the record, the trial court,

electing to persist in his unquestionably improper con-

duct, addressed the witness as ‘‘Eddie.’’ Tr. 697.

The defense moved for a mistrial upon the ground

that the court’s misconduct had lent undue influence to

Mr. Beier’s testimony. The court, obviously having no

perception of the impropriety of its conduct, denied the

motion summarily (Tr. 782-83) and went on to state:

**! should warn counsel that if I find some of the

Defendants’ witnesses are old friends that | haven’t

seen for a long time, I shall do the same thing with

them.’’ Tr. 783.°

* When the last defense witness testified, the judge took the op-

portunity to fulfill his threat. He shook hands with the witness and

- |

The Court of Appeais held, as to this misconduct of

the trial judge:

‘It is clear to us that Mr. Beier’s testimony was

of great importance to the government’s proofs in

relation to count one of the indictment upon which

defendants were convicted.

‘*‘While we recognize that the District Judge’s

greeting to his old friend was plainly not intended to

sway the jury, the episode may have lent undue

weight to the testimony given by the witness involv-

ed. See Quercia v. United States, 289 U.S. 466, 470

(1933).

‘‘Under this circumstance, the judgment of con-

viction as to count one is vacated as to both defen-

dants. The judgments of conviction on the other

counts are affirmed.’’ App. at 2a.

Since Dr. Michienzi, testifying in his own and his

wife’s behalf, had denied guilt on all counts, it is ap-

parent that the judge’s misconduct, to the extent that it

enhanced the weight of Mr. Beier’s testimony of guilt on

Count 1, inevitably denigrated Dr. Michienzi’s testimony

of innocence on the other counts. The Court of Appeals,

in reversing only the Count | conviction, took no ac-

count of this effect of the judge’s misconduct.

REASONS FOR GRANTING THE WRIT

1. Almost fifty years ago, this Court held, in Alford

v. United States, 282 U.S. 687 (1931), that it was an

abuse of discretion and prejudicial error’ for a federal

the prosecutor made sure that the record should so state. Tr. 1609.

The record does not disclose, however, that any words were

spoken. Nor does it show whether or not the judge actually knew

the witness.

’ Although not specifically articulating in Alford the constitu-

tional basis of its decision, the Court, in !ater applying Alford stan-

spe ae

9

trial court to cut off in limine a criminal defendant’s

right to inquire on cross-examination as to the place of

residence of a prosecution witness. One of the purposes

of cross-examination, said the Court, is “‘that the witness

may be identified with his community so that indepen-

dent testimony may be sought and offered of his reputa-

tion for veracity in his own neighborhood. ...”” 282

U.S. at 691. To foreclose any contention that the error

of such in limine preclusion of cross-examination can be

harmless, the Court added:

“It is the essence of a fair trial that reasonable

latitude be given the cross-examiner, even though he

is unable to state to the court what facts a

reasonable cross-examination might develop. Pre-

judice ensues from a denial of the opportunity to

place the witness in his proper setting and put the

weight of his testimony and his credibility to a test,

without which the jury cannot fairly appraise

the a... . To say that prejudice can be established

only by ‘showing that the cross-examination, if pur-

sued, would necessarily have brought out facts tend-

ing to discredit the testimony in chief, is to deny a

substantial right and withdraw one of the safeguards

essential to a fair trial. . .. In this respect a sum-

mary denial of the right of cross-examination is

distinguishable from the erroneous admission of

dards to state court trials, made it plain that it was speaking of the

Sixth Amendment right of confroniation. Smith v. linus, 390

U.S. 129, 133 (1968). Also, in Davis v. Alaska, 415 U.S. 308, 318

n.6 (1974), the Chief Justice, in his opinion for the Court, wrote:

**Although Alford involved a federal criminal trial and we reversed

because of abuse of discretion and prejudicial error, the constitu-

tional dimension of our holding in Alford is not in doubt.

*For the universal acceptance and continued vitality of the

Alford principle it is sufficient to refer to the Shepard citator.

10

harmless testimony. . . .”’ 282 U.S. at 692 (citations

omitted).°

In its attempt to avoid Alford’s impact, the govern-

ment took three separate paths (Brief, pp. 11-12):

(a) that Alford is distinguishable as dealing with

the potential bias of a witness held in federal

custody;

(b) that Alford, while declaring a right to cross-

examine on the question of residence, left the exer-

cise of the right to judicial discretion; and

(c) that denial of such cross-examination was

justified here by the witness’ fear.

We submit that this Court has effectively blocked all

three of those paths.

First, Alford, although it did deal with a possibility

that the witness was in federal custody, plainly called

that ‘‘an additional reason why the question should be

allowed,’’ 282 U.S. at 693, and, just as plainly, as we

have already shown, declared the question allowable

without that additional reason and, indeed, without the

need to state any reason.

For its ‘‘discretion’’ path, the government pointed

to the Court’s statement, 282 U.S. at 694, that ‘‘[t]he ex-

* Moreover, the importance of a proper cross-examination of

Rosemary Ging, the witness here involved, could have been no less

than that of the witness in Alford, for, as the government showed

in its brief below, at pp. 4-5, she, like the Alford witness, was ‘‘a

former employee’’ of the petitioners who, on direct examination,

“*gave damaging testimony with respect to various transactions of

accused, including conversations with the witness when others were

not present... .”’

11

tent of cross-examination with respect to an appropriate

subject of inquiry is within the sound discretion of the

trial court.’’ Brief, p. 11. But the Court was there speak-

ing only of the extent of cross-examination on the sub-

ject.'"° The Court said the trial court ‘‘may exercise a

reasonable judgment in determining when the subject is

exhausted’? and has ‘‘a duty to protect [the witness]

from questions which go beyond the bounds of proper

cross-examination merely to harass, annoy or humiliate

him,’’ but may not, as here it did, ‘‘cut off in limine all

inquiry on a subject with respect to which the defense

was entitled to a reasonable cross-examination.’’ 282

U.S. at 694.

The government’s third path — the witness’ fear —

depends on the gloss placed upon Alford by Mr. Justice

White’s concurring opinion in Smith v. Illinois, supra,

390 U.S. at 133-34. He attributed to the Court an inten-

tion to include among the questions disallowable as tend-

ing ‘‘merely to harass, annoy or humiliate’’ the witness

‘those inquiries which tend to endanger the personal

safety of the witness.’’

**But,’’ Mr. Justice White added, ‘‘in these situa-

tions, if the question asked is one that is normally per-

'° Consistently with what this Court said in Alford, ‘‘the

cases ... recognize that it ‘is only after the right of cross-

examination has been substantially and thoroughly exercised that

the allowance of further cross-examination becomes discretionary

with the trial court.’ ’’ United States v. Caudle, 606 F.2d 451, 458

(4th Cir. 1979), quoting Hartzell v. United States, 72 F.2d 569, 585

(8th Cir. 1934). See also, United States v. Greenberg, 423 F.2d

1106, 1108 (Sth Cir. 1970): ‘‘[F]ull cross-examination addressed to a

relevant area of inquiry is a right, and the discretion of the court to

limit the scope of cross-examination does not become operative un-

til a party has had an opportunity to exercise the right of cross-

examination.”’

4

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missible, the State or the witness should at the very least

come forward with some shc~ing of why the witness

must. be excused from answering the question.’’ 390 U.S.

at 134. Thus, a professed fear of the witness not shown

to be reasonably based will not suffice to defeat the right

of cross-examination.'' What the trial judge must be able

to find, if he is to foreclose the question, is not that the

witness actually is fearful, but that there is actually

something to fear. The finding in this case of a ‘‘harsh

reality’’ that Miss Ging felt fear, even if there was no ra-

tional basis for her fear (supra, p. 4), is simply not

enough to overcome petitioners’ Alford right of cross-

examination. Moreover, the government’s position that it

had already let the address of the witness slip out to the

defense seems to remove any ‘“‘fear’’ element from the

case. Since the trial court, however, did not permit the

defense to verify that the revealed address was actually

that of the witness and flatly forbade any inquiry into

the witness’ reputation in that place, the petitioners’

Alford point remains unaffected.

'' See, United States v. Fife, 573 F.2d 369, 376 (6th Cir. 1976):

‘‘The mere expression of apprehension by a witness who is reluctant

to divulge his address is not sufficient justification for restricting

cross-examination without further inquiry. An in camera hearing

might be held to determine if there is a factual basis for such ap-

prehension.’’ See also, United States v. Ott, 489 F.2d 872, 876 (7th

Cir. 1973) (per Stevens, J.): ‘‘There are occasions, of course, when

compelling reasons, such as concern for the safety of a witness,

may justify curtailing even this preliminary inquiry. The trial judge

has discretion to determine when such reasons exist.’’And, see,

United States v. Cavallaro, 553 F.2d 300, 304 (2d Cir. 1977):

**There was good reason to fear for the safety of the witness; *’

and, United States v. Alston, 460 F.2d 48, 52 (Sth Cir. 1972):

“(T]he district judge ... concluded ... that [the witness had] a

reasonable fear for his own or his family’s physical safety.’’

oe

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There can be no doubt that the trial court’s view of

the confrontation clause as a mere ‘‘slogan’’ and its rul-

ing that petitioners had no right to elicit evidence of the

witness’ reputation for veracity in the place where she

lived were plainly erroneous and in blatant conflict with

this Court’s decision in Alford. We respectfully submit

that this Court should grant certiorari and summarily

reverse the judgment of the Court of Appeals affirming

the convictions.

2. The impropriety of the judge’s exhibition of his

friendship with a prosecution witness was recognized by

the court below in vacating the convictions as tg one

count. The question remaining, however, is whether the

nature of the misconduct and the posture of the case did

not require total reversal.

No principle is more fundamental to our jurispru-

dence than the principle of fair trial. When a criminal

case is tried to a jury, the likeliest way for the trial to

become unfair is for the presiding judge to allow the

jury to base its verdict on matters other than properly

received evidence. The most invidious of such other

matters are those which the jury receives from the trial

judge himself, for as this Court said in Starr v. United

States, 153 U.S. 614, 626 (1894), and later reiterated in

Quercia v. United States, 289 U.S. 466, 470 (1933):

**It is obvious that under any system of jury trials

the influence of the trial judge on the jury is

necessarily and properly of great weight, and that

his slightest word or intimation is received with

deference, and may prove controlling.’’'?

'? The weight of the trial court’s position upon the jury has even

been called ‘‘overpowering.’’ United States v. Hoker, 483 \.2d 359,

368 (Sth Cir. 1973); see also, United States v. Hickman, 592 F.2d

931, 933 (6th Cir. 1979).

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When the judge, worse than merely allowing the

jury to base its verdict on some prejudice rather than on

the evidence, himself introduces such prejudice, as was

done here, his conduct ‘‘should be promptly rebuked,

and ... it is the imperative duty of a reviewing court to

take care that wrong is not done in this way... .”’

Reynolds v. United States, 98 U.S. 145, 168 (1878).

Even if the Court of Appeals was correct in con-

cluding ‘‘that the District Judge’s greeting to his old

friend was plainly not intended to sway the jury,” its

failure sufficiently to rebuke the judge and to take care

that wrong has not been done bespeaks a tolerance of

judicial misconduct which this Court should correct.

Recognizing, as the Court of Appeals apparently

failed to do, the dual factors: that the judicial miscon-

duct in this case sprang not from carelessness or in-

advertence, but from a stubborn insistence upon a right

to misbehave; and that the misconduct, although most

obviously impinging on the verdict on Count 1, could

also have affected the verdict on the other two counts,

this Court should express an attitude less benign than

that of the Court of Appeals. We submit that the Court

should grant the writ here sought and should summarily

reverse the convictions on all counts.

15

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

EDWARD BENNETT WILLIAMS

Counsel of Record

HAROLD UNGAR

CHARLES H. WILSON

Hill Building

Washington, D.C. 20006

(202) 331-5000

Counsel for Petitioners

Of Counsel:

LEONARD J. CATRI

GEORGE A. HOWELLS

165 East Washington Row

Sandusky, Ohio 44870

(419) 625-8735

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-5298

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

FRANCESCO MICHIENZI, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Ohio,

Decided and Filed September 12, 1980.

Before: Epwarps, Chief Judge, KENNEDY, Circuit Judge,

and Peck, Senior Circuit Judge.

Per CuriAM. Defendants appeal from their conviction

after jury trial on three counts involving charges of mail fraud

and making false statements, in violation of 18 U.S.C.

§§1341, 1342 and 1001 (1976). The charges involve allegations

that defendants had fraudulently obtained payment of

Medicare and Medicaid funds.

While appellants contend that there was insufficient

evidence to support the jury verdicts and complain about rul-

ings on the part of the trial judge in this 12-day trial, our

review of the record indicates that there was more than ample

proof to sustain the jury verdicts on all three counts at issue

here.

Our review also discloses no reversible error in the

Judge’s evidentiary rulings and no violation of the double

jeopardy clause in the holding of a second trial after a

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2a

mistrial had been declared on motion of the defendants in the

first trial.

The primary issue which concerned this court on appeal

is stated thus in appellants’ brief:

At the conclusion of the government’s direct examina-

tion of Edward Beier, a government witness, Judge

Young arose from the bench, went over to the witness

stand and conducted a conversation with the witness in

: the presence of the jury. When he returned to the bench,

Judge Young addressed the jury, saying, ‘‘Mr. Beier and

I are old friends from Norwalk.’’ The following colloquy

then took place between the Court and counsel (App.

727):

Mr. Howe Lts: May we approach the bench?

THE CourT: You may.

(Whereupon, the following discussion was held at

the Bench.)

Mr. HowELts: Please let the record show that the

Court rose, walked to the side of the Bench, shook

hands with the wiiness, who rose and shook hands

with the Court, and they addressed each other in a

spoken way. Thank you.

It is clear to us that Mr. Beier’s testimony was of great

importance to the government’s proofs in relation to count

one of the indictment upon which defendants were convicted.

While we recognize that the District Judge’s greeting to

his old friend was plainly not intended to sway the jury, the

episode may have lent undue weight to the testimony given by

the witness involved. See Quercia v. United States, 289 U.S.

466, 470 (1933).

Under this circumstance, the judgment of conviction as

to count one is vacated as to both defendants. The judgments

of conviction on the other counts are affirmed.

3a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT Feo

No. 79-5298 te foie

John P. Hehman, Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

FRANCESCO MICHIENZI, ET AL.,

Defendants-Appellants.

ORDER

Before: Epwarps, Chief Judge, KENNEDY, Circuit Judge and

Peck, Senior Circuit Judge.

On receipt and consideration of a petition for rehearing

and suggestion for rehearing en banc in the above-styled case;

and

No judge in active service in this court having moved for

rehearing en banc and the motion therefore having been refer-

red to the panel which heard the case; and

The panel having noted nothing of substance in said mo-

tion for rehearing which had not been carefully considered

before issuance of the court’s order,

Now, therefore, the motion for rehearing is hereby

denied.

Entered by order of the court

/s/ JOHN P. HEHMAN

Clerk