Opposition — Johnson v. United States

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Cffice-Suereme Court, US,

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No. 80-1213

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In the Supreme Cow of the Unite

OCTOBER TERM, 1980

EILEEN ELDORADO JOHNSON, PETITIONER,

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 205380

(202) 633-2217

TABLE OF AUTHORITIES

Cases: Page

Eley v. United States, 117 F.2d 526 ........................ 5

Lawn V. United States, 355 U.S. 389 .............-......-.:. 5

Michelson v. United States, 335 U.S. 469 ................ 4

United States v. Benedetto, 571 F.2d 1246 .............. 5

United States v. Curry, 512 F.2d 1299, cert. de-

wie, GD Ue. Oe kvkccciccicniaiednion 5

United States v. Davenport, 449 F.2d 696 .............. 5

United States v. Elmore, 423 F.2d 775, cert. de-

me Ra ART le ey Ve te 5

United States v. Fowler, 608 F.2d 2 ..0.0..0.2...ccccceeeeee 6

United States v. Jacobson, 578 F.2d 8638, cert. de-

Sete I TEs I sack Seater deeiesindaneteegees 4-5

United States v. Jamerson, 549 F.2d 1268 .............. 6

United States v. Reese, 568 F.2d 1246 .................... 5

Constitution, statute and rules:

United States Constitution, Sixth Amendment. .... 6

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Fed. R. Evid.:

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(1)

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1213

EILEEN ELDORADO JOHNSON, PETITIONER,

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner seeks review of her conviction for at-

tempted income tax evasion, claiming that the gov-

ernment’s rebuttal evidence, which indicated that peti-

tioner had submitted false medicaid billings, violated

Fed. R. Evid. 404(b).

1. Following a jury trial in the United States Dis-

trict Court for the Western District of Virginia, peti-

tioner was convicted of attempting to evade her per-

sonal income taxes for the years 1972, 1973, and 1974,

in violation of 26 U.S.C. 7201. Petitioner was fined

(1)

2

$8,000 on each count, with all but $3,500 of the fine

imposed upon all counts suspended, and was placed

on probation for a period of two years. The court of

appeals affirmed (Pet. App. 1a-7a).

After the government concluded its case-in-chief,

petitioner presented seven witnesses who testified that

her reputation as a law-abiding citizen was good

and that she had a good reputation for truth and

veracity (V Tr. 98, 101, 105, 107, 110, 116, 232;

Pet. App. 2a).’ All but two of these witnesses were

asked whether they knew how busy petitioner was in

her practice, and they responded that she was very

busy and worked long hours (V Tr. 97, 101-102,

107-108, 116, 282; Pet. App. 2a). Petitioner testified

that her staff did all of the financial work and that

she kept no records (V Tr. 127-129); that her re-

turns were prepared by others and that she simply

signed them without studying them (V Tr. 132);

that she never had anything to do with the receipts

from her practice (V Tr. 189); and that she was

never curious as to how much money she was making

fom her practice because she was interested in med-

icine, devoted all of her time to it, and never paid

any attention to the financial aspects of her business

(V Tr. 147-148).

In rebuttal, the government called Robert Pember-

ton, an auditor for the United States Department of

Health, Education, and Welfare, who testified that he

had determined after investigation that during the

period from February 1976 through January 1979

petitioner had billed the federal government and

received payment for medical services that were

1“Tr.” refers to the transcript of trial proceedings. “J.

App.” refers to the joint appendix filed in the court of

appeals.

3

not reflected on her patients’ charts and that her

patients said they had not received (Pet. App. 2a-3a;

V Tr. 286-237). Based upon his investigation, Pem-

berton. concluded that petitioner’s truthfulness was

questionable (V Tr. 238-239).

The petitioner testified again, and on cross-

examination the government asked: “Who would have

received the benefit of all the fraudulent forms for

Medicaid that were filed?” Petitioner objected to the

characterization of the forms as fraudulent and

moved for a mistrial (J. App. 25). The court denied

the motion and gave the following cautionary in-

struction to the jury (J. App. 28):

Ladies and gentlemen of the jury, whether or

not fraudulent claims had been filed for Medicare

would be up to you to determine from that, not

what any of the attorneys say. You understand

that, all of you understand, you disregard the

last question that was asked.

2. Relying on Fed. R. Evid. 404(b), petitioner

argues (Pet. 5-10) that Pemberton’s testimony was

inadmissible because it constituted evidence of specific

misconduct used to prove the bad character of the

defendant.?

2 Petitioner also asserts (Pet. 12) that Pemberton’s testi-

mony and the trial court’s cautionary instruction to the jury

indicating that they were to determine whether or not peti-

tioner’s billing practices were “fraudulent” violated her rights

to be informed of the nature of the charges against her and

to be tried only for the offense charged. Petitioner was tried

for and convicted of the charges in the indictment, i.e., at-

tempted income tax evasion. The trial court simply directed

the jurors to ignore the prosecutor’s characterization of the

evidence, and, in evaluating the significance of Pemberton’s

testimony as it related to petitioner’s defense of inadvertence,

to make their own determination of whether petitioner had

engaged in “fraudulent” billing practices.

Rule 404(b) provides:

(b) Other crimes, wrongs or acts. Evidence of

other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to

show that he acted in conformity therewith. It

may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or ab-

sence of mistake or accident.

Petitioner argues that she merely introduced testi-

mony concerning her reputation for truth and verac-

ity and as a law-abiding citizen (see Fed. R. Evid.

404(a)(1), 405(a)) and that the government was

precluded from using specific acts of misconduct to

rebut this evidence. However, petitioner went beyond

merely attempting to establish that the general esti-

mate of her character was so favorable that it could

be inferred that she would not be likely to commit

the offense charged. See Michelson v. United States,

335 U.S. 469, 476 (1948). Rather, as the court of ©

appeals recognized (Pet. App. 2a, 5a), through her

own testimony, and that of others, petitioner at-

tempted to depict herself as having had nothing to

do with the preparation of her tax returns because

she cared nothing for money, having chosen, instead,

to devote her time to the demanding personal needs

of her patients. Under these circumstances, the dis-

trict court did not abuse its discretion under Rule

404(b) in permitting the government to introduce

evidence ;of other acts suggesting that petitioner’s

characterization of herself as a person who cared

nothing for money was not credible and that she had

possessed the state of mind requisite to guilt of the

offense charged. See, e.g., United States v. Jacobson,

5

578 F.2d 868, 866-867 (10th Cir.), cert. denied, 489

U.S. 932 (1978).°

Moreover, as the court of appeals noted (Pet. App.

3a), petitioner did not make timely objection to this

testimony. Although petitioner’s counsel objected to

Pemberton’s testifying to the results of any general

study by HEW (V Tr. 234), he specifically indicated

that he had no objection to the witness’ testifying as

to what he knew (V Tr. 235), to what the witness

discovered during his investigation (V Tr. 235, 237),

or to the government’s bringing out specific instances

of conduct (V Tr. 236). The failure to make timely

objection to the admission of the evidence waived

any challenge petitioner might have been entitled to

raise concerning the admission of the evidence, absent

plain error affecting substantial rights. Lawn v.

United States, 355 U.S. 339 (1958); United States

v. Elmore, 423 F.2d 775, 777 (4th Cir.), cert. denied,

400 U.S. 825 (1979). See also Fed. R. Evid. 103

(a) (1), 103(d) ; Fed. R. Crim. P. 52(b).

The admission of Pemberton’s testimony, even if

error, did not affect petitioner’s substantial rights.

% Petitioner’s reliance (Pet. 6-9) on United States v. Bene-

detto, 571 F.2d 1246 (2d Cir. 1978) ; United States v. Reese,

568 F.2d 1246 (6th Cir. 1977) ; United States v. Curry, 512

F.2d 1299 (4th Cir.), cert. denied, 423 U.S. 882 (1975);

United States v. Davenport, 449 F.2d 696 (5th Cir. 1971);

and Eley v. United States, 117 F.2d 526 (6th Cir. 1941), is

misplaced. In Curry, Davenport, and Eley, the courts simply

held that evidence of specific misconduct was inadmissible to

show bad character. Similarly, in Reese the court noted that

evidence of specific misconduct was inadmissible to show bad

character, but held that the evidence in question was admissi-

ble on the issues of knowledge and intent. In Benedetto, the

court concluded that the evidence of specific misconduct was

inadmissible to show knowledge and intent since those issues

were not seriously disputed, but held the evidence admissible

on other grounds.

6

It was not contested at trial that petitioner’s tax re-

turns for the three years at issue substantially under-

stated her taxable income and that there was a re-

sulting understatement of tax liability for the years

at issue of approximately $31,000. Petitioner’s sole

defense was that she had nothing to do with the

financial aspects of her medical practice, entrusting

that chore to her employees. There was, however,

testimony from one of petitioner’s employees that

petitioner was intimately involved in the preparation

of the summaries that were given to petitioner’s ac-

countant to serve as the basis for preparation of her tax

returns (II Tr. 112-113). This testimony was cor-

roborated by the petitioner’s handwritten notations

on the summaries (II Tr. 114-115; V Tr. 155, 161-

164). Under these circumstances, there is little likeli-

hood that Pemberton’s testimony had any substantial

effect on the jury’s verdict.*

* Nor is there any merit in petitioner’s suggestion (Pet. 12)

that the admission of Pemberton’s testimony denied her the

Sixth Amendment right to confront the witnesses against her

because Pemberton had related the hearsay responses of peti-

tioner’s clients. Petitioner made no objection to that testi-

mony at the time upon the ground that it violated her Sixth

Amendment right, and, therefore, such “testimony, even * * *

{if] improper, * * * [became] part of the record and * * *

[was] available to be considered for its probative value by

the trier of fact.” See United States v. Fowler, 608 F.2d 2, 8

(D.C. Cir. 1979), quoting United States v. Jamerson, 549

F.2d 1263, 1267 (9th Cir. 1977). Furthermore, the hearsay

statements of petitioner’s clients apparently only confirmed

what was obvious from their charts, namely, that they had

not received all of the treatment for which the federal gov-

ernment had been billed; therefore, admission of the state-

ments cannot constitute “plain error.” Fed. R. Crim. P.

52(b).

7

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

WADE H. McCREE, JR.

Solicitor General

MARCH 1981

W ov. S. Coveenment paeintine orrice; 1981 343833 300