# Petition — Schiff v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 835

## Text

| peep ag a Mgrs U.S.
80-2155
UN 19 1981

ALEXANDER L. STEVAS,

No.

In THE

«Supreme Court of the United States

Ocroser Term, 1980

Irwin A. SCHIFF,
Petitioner,

—_—vs.—

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DOUGLAS GILMORE

11 Harding Lane

Westport, Connecticut 06880
(203) 226-6277

Attorney for Petitioner

(11065)

QUESTIONS PRESENTED FOR REVIEW

I. Do the Supreme Court decisions in Edgington v. United
States and Michelson v. United States require in a federal
- criminal trial an instruction that character evidence when con-
sidered with all the other evidence in the case may alone raise a
reasonable doubt in the mind of the jury. when such an
instruction is requested by the defendant? —

II. Is it error in a federal criminal trial for the District Court to
fail to charge the jury as to the purpose, function and effect of
character evidence upon the Government's burden of proof,
specifically that character evidence when considered with all the
other evidence in the case may raise a reasonable doubt in the
mind of the jury, when such an instruction is requested by the
defendant?

III. Is it error in a federal criminal trial and a Denial of Due
Process under the Fifth Amendment for the District Court to
instruct the jury that character evidence may not defeat a
finding of guilt beyond a reasonable doubt, without also instruct-
ing that character evidence when considered with all the other
evidence in the case may also raise a reasonable doubt, when
such a balanced instruction is requested by the defendant?

ii

TABLE OF CONTENTS

COMERS PRGIIIO Sicicecivciissbtdendbsesocicascsvcesbsscocantesese
Table of Autherities Cited ..............cccccessseeseseeseseeeeees

CN ri seis a sew nceaddgsucentcanosleernviancdoonDbbcnsies

Constitutional Provision Involved ................0:00e000
GOURUNS BUONO ess ohh lssassSesicctashotas accdcshdoscan
Federal Rule of Appellate Procedure Involved ..........
SRAM OT SRO AMOR a5 fanssicevsdiiscssesovsevecsieshobescksorcvees
Reasons for Granting the Writ ...............:cc:scsseeseeseees

1. There currently exists a conflict both among
and within the Federal Circuits as to whether
the “alone” charge is required and the conflict
is based upon diverging opinions among and
within the Circuits as to the proper
interpretation of two Supreme Court decisions.

2. The questions presented as to whether the
“alone” charge is required and whether the
purpose, function and effect of character
evidence must be charged are extraordinarily
important questions dealing with the
administration of criminal justice in the
Federal Courts, and can only be resolved by
ne Beewtiie Goat. ios scccocssscinsoasercevevescoskessccens

s~oonnne &

ll

(a) Inasmuch as character evidence has the
potential of arising at most every federal
criminal trial in the United States, the jury
charge as to the consideration which the
jury should give such evidence has the
potential of affecting the outcome in all
federal criminal trials at which such
evidence is offered, and as a result, the
lack of uniformity in the law as to its
purpose, function and effect in the jury
charge results in a discriminatory
treatment of criminal defendants not only
from Circuit to Circuit, but from Judge to
IN i oe los a lapse bitstaksvnscasamicioveipiinceres:

(b) The issues are ripe and there is little
likelihood that the Circuits will resolve the
conflict both among and within themselves
at any near time in the future. ..................

. The District Court's refusal to charge as to the
‘‘alone”’ instruction, and at the same time fail
to charge as to the purpose, function and effect
of character evidence, specifically that such
evidence when considered with all the other
evidence may raise a reasonable doubt, was
contrary to both Edgington and Michelson as
well as the law of every Circuit as to the
required charge regarding character evidence.

(a) The Supreme Court should exercise its
supervisory powers to review the District
Court's charge regarding character
evidence which is clearly contrary to all
federal precedent .............::ccccescesseeseseeeees

(b) The District Court not only failed to give
the required charge as to the purpose,
function and effect of character evidence
contrary to all federal precedent, but
further charged that character evidence

PAGE

Ii

13

17

17

iv

PAGE
could not defeat a finding of guilt beyond
a reasonable doubt, without also balancing
the charge with an instruction that
character evidence may also raise a
reasonable doubt when considered with all
the other evidence, and as such the court
should exercise its supervisory powers to
correct this clear break with federal law. ... 20
CHIC ANcRI ION Sasivhasdcadsvecsadsadpveetedesccsesceshpoasd¥incosceses 21
PETRIE Lisschtinssshcoteivesivineutadesdegalbisessadapiadadebvisensse 22a
Statement made by 2nd Circuit at disposition of
appeal in open Court ............cccscssessesesseeeseeeeeees 22a
United States v. Schiff, 612 F.2d 73 (1979) .......... 24a
SURO. DE TRON bases sich osotondicceriarscsictsbsagatuesveces 4la
Order denying Rehearing En Banc ...............+00+ 42a
Defendant's requested character evidence charge 43a
Defendant's motion for new trial based upon
erroneous character evidence charge ................ 44a
Character evidence charge in United States v.
DE aicikaiesilavidesvactvavebabiniutrevacagendts dauablccbevays 45a

Character evidence charge in United States v.
RI ici SvcacsathocscookstofehssaucetedsecsnEpckcbadgabeotes 46a

PAGE
TABLE OF AUTHORITIES CITED

CASES
Bird City Equity Mercantile Exchange v. United
States, 338 F.2d 790 (10th Cir. 1964). 0.0... 9

Black v. United States, 309 F.2d 331, (8th Cir. 1962),
cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed. 2d

EE MMU. halelskiasaletcossn dich obsthdascsbtannpscnohevivsbasocssioh 10
Edgington v. United States, 164 U.S. 361, 17 S.Ct.
Tak GE DO OT CEO OK ssackvtssenvencssiccoyasesss 6,7,8,11,13,16,18

Greer v. United States, 227 F.2d 546 (10th Cir. 1955). 9,14
Hayes v. United States, 227 F.2d 540 (10th Cir.

EE pectcaiacshassdibatatessecccdbecseutiactesiariuntSedsostabians sooe 9,14
Johnson v. United States, 269 F.2d 72 (10th Cir.

PIE Acros dadlaidinstanrececsasecedcvabisbiasbadvouctabldesepiasesicie’ 9
Mannix v. United States, 140 F.2d 250 (4th Cir.

DRL ads ceeiics auesb cessor chachadsyssnaseuddccdouvies Uibntontesassoes 9,18

Marzani v. United States, 83 U.S. App. D.C. 78, 168
F.2d 138 (D.C. Cir. 1948), aff'd 335 U.S. 895, 69
S.Ct. 299, 98 L.Ed. 431 (1948) (per curiam),
affirmance upheld on rehearing, 336 U.S. 895, 69

S.Ct. 658, 98 L.Ed. 1075 (1949), ..........scscsssssseeeees 10
Michelson v. United States, 335 U.S. 469, 69 S.Ct.

218, 93 L.Ed. 168 (1948). .........scssesseeseees 6,7,8,11,13,16,18
Miller v. United States, 120 F.2d 968 (10th Cir.

DUEL bisics Sb dokasyseishincacesecesshaptinegsnabesiseddauniobessescqess 9

Oertle v. United States, 370 F.2d 719 (1966), cert.
denied, 387 U.S. 948, 87 S.Ct. 2075, 18 L.Ed. 2d
REED RUMIEAGE, ROOK \licésescsecsssonchotecdsipoddnesocscaseis 8,10,15

Peterson v. United States, 268 F.2d 87 (10th Cir.
BOB CORD BIO, inecsccaaccsdsticscosescesuchas 2 Darth at- NAST 9,14

Poliafico v. United States, 237 F.2d 97, (6th Cir.
1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1
L.Ed. 2d 597 (1957), rehearing denied, 353 U.S.
931, 77 S.Ct. 718, 1 L.Ed. 2d 725 (1957). ...............

Smith v. United States, 305 F.2d 197 (9th Cir. 1962),
cert. denied sub nom., Corey v. United States, 371
U.S. 890, 83 S.Ct. 189, 9 L.Ed. 2d 124 (1962). .......

Sunderland v. United States, 19 F.2d 202, (8th Cir.
TR iss dhacasaskcdoediceceddaroniaensigs toni AasdeVedabavstissesbediece

United States v. Brown, 355 F.2d 938 (6th Cir.
EONS REE oat OEE Se ART 8 OI

United States v. Colbert, 79 U.S. App. D.C. 261, 146
ie 10 CAG, Cle, 1OG4) aeircccsssiinscersccecsvosccesesesese

United States v. Cramer, 447 F.2d 210 (2d Cir. 1971),
cert. denied, 404 U.S. 1024, 92 S. Ct. 680, 30 L.Ed.
PP RTD Lilesatiaiietncs bin canconsnacebepbiduahscaivkidokuidacsess

United States v. Crosby, 294 F.2d 928 (2d Cir. 1961),
cert. denied sub nom., Mittleman vo. United States,
868 U.S. 984, 82 S.Ct. 599, 7 L.Ed. 2d 523

PAGE

9,18

10,18

8,10

ERIE Je: igseeeabadbasvveussecocasisesinscsnencnoicnossovessveabaocosoceess 10,12,16

United States v. Darland, 626 F.2d 1235 (5th Cir.
ME eh iit snh ishsi uidugo andvacdbckadbeadbeaecsepassrededabpescese

United States v. Donnelly, 179 F.2d 227 (7th Cir.
BEE si\c cassssontilcxoaunbiccvsvedhosabuckekodeuaitn r4secakeabGieincensts

United States v. Fayette, 388 F.2d 728 (2d Cir.
UE SIs Sacks ahhial ce tedicuvemabbcdisaminstausta odbbeesbeceoeevevs

United States v. Fontenot, 483 F.2d 315 (5th Cir.
BPP: Cakes iistarbin Sscssahoeibactaneabscabteisesenibvecessd vodonsesecs

United States v. Frischling, 160 F.2d 370 (3rd Cir.
BAPE Fh debs bandedsaeasdénhirsacesassvoesencescsledscvepsvobesdidccceses

United States v. Kabot, 295 F.2d 848 (2d Cir. 1961),
cert. denied, 369 U.S. 808, 82 S.Ct. 641, 7 L.Ed. 2d

EMA MUOE. cssbihbeisahoubsesectsecoionssencaveradebapundieessestiededee 10,12,16

United States v. Klass, 166 F.2d 3783 (3rd Cir. 1948). .

United States v. Lachman, 469 F.2d 1048 (1st Cir.
1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36
Ras Ses I RINT TBE: pschdleccncancsddteaticsesasktaccsadneveeceses

United States v. Lewis, 157 U.S. App. D.C. 48, 482
Pee I RIAs Cs RETOW sscdsssvcsehesoponcssesncevscnceoops

United States v. Lowenthal, 224 F.2d 248 (2d Cir.
NAL Austsnssktcscdikimndsssdscnhaaadbchotnnthendotcedbenadedabadblendccs

United States v. Minieri, 303 F.2d 550 (2d Cir. 1962),
cert. denied, 371 U.S. 847, 83 S.Ct. 79, 9 L.Ed. 2d
Ie CIEIEES dechckserssdciveriah iphodenlabedindlansaabbucdicéiacebassesse

United States v. Quick, 128 F.2d 832 (3rd Cir.
MEPUE: seitchi bss cudeamedavesnesacavenasiebnadadabesabtiecedesovesteress

United States v. Schiff, 612 F.2d 73 (2d Cir. 1979). ...

United States v. Wicoff, 187 F.2d 886 (7th Cir.
PITA Sacabdschgatcoudbaeebeni sectdvinchpccisduaiscasébeniieiveicsvenuess

United States v. Wooden, 137 U.S. App. D.C. 1, 420
a re as a: BTA slab occesabecsscecensseseetieyesens

Villaroman v. United States, 87 U.S. App. D.C. 240,
184 F.9d 261 (D.C. Cir. 1960). ......ccccccocccsccsccscccoeee

Weedin v. United States, 380 F.2d 657 (9th Cir.
PEE vokabharigiandsi tisk uisvnbeislevail asbuncsvagigeckesseautismiddiinss

CONSTITUTIONAL PROVISION, STATUTE AND RULE

Constitution of the United States, Fifth Amendment,
RP HINES CIID iisicicvccsescaonseceossosscvedeccsdvcteveocies

Title 96 .U.S.C. Section TB0G .......ccrcrvcrsccoscccescocscscsesas

Ocroser Term, 1980

Irwin A. SCHIFF,

Petitioner,

—VvVs —

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Irwin A. Schiff respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals For
The Second Circuit entered in this case on January 28, 1981.

OPINION BELOW

The judgment of the United States Court of Appeals for the
Second Circuit was rendered in open Court and without written
opinion on January 28, 1981. A copy of the oral opinion rendered
at the time of judgment is in the atteched Appendix, 22a. The
Second Circuit's reversal of petitioner's original conviction is
cited as United States v. Schiff, 612 F.2d 78 (1979) and is in the
‘attached Appendix, 24a.

2

JURISDICTION

The judgment of the Court of Appeals for the Second Circuit
was entered on January 28, 1981. Petitioner's “Petition For
Rehearing with Suggestion for Rehearing En Banc” was timely
filed and denied on April 21, 1981. The jurisdiction of this Court
is invoked pursuant to 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States:

Amendment V: No person shall be. .. . deprived of
life, liberty, or property without due process of
law. ...

STATUTE INVOLVED

Title 26 U.S.C. Section 7208:

Any person required under this title to pay any
estimated tax or tax, or required by this title or by
regulations made under authority thereof to make a
return (other than a return required under authority
of section 6015 or section 6016), keep any records, or
supply any information, who willfully fails to pay such
estimated tax or tax, make such return, keep such
records, or supply such information, at the time or
times required by law or regulations, shall, in addition
to other penalites provided by law, be guilty of a
misdemeanor and, upon conviction thereof, shall be
fined not more than $10,000, or imprisoned not more
than 1 year, or both, together with the costs of
prosecution.

- $

FEDERAL RULE OF APPELLATE PROCEDURE
INVOLVED

FRAP 35(a):

When Hearing or Rehearing in Banc Will be Or-
dered. A majority of the circuit judges who are in
regular active service may order that an appeal or
other proceeding be heard or reheard by the court of
appeals in banc. Such a hearing or rehearing is not
favored and ordinarily will not be ordered except (1)
when consideration by the full court is necessary to

“secure or maintain uniformity of its decisions, or (2)
when the proceeding involves a question of excep-
tional importance.

STATEMENT OF THE CASE

An information was filed in the District of Connecticut, at
Bridgeport, against petitioner on April 18, 1978 charging him
with two Counts of willful failure to file personal income tax
returns for the calendar years 1974 and 1975 pursuant to Title
26 U.S.C. Section 7203. Petitioner was convicted by a jury on
both Counts before the Honorable T.F. Gilroy Daly, and his
conviction was reversed and a new trial granted by the United
States Court of Appeals For The Second Circuit in United States
v. Schiff, 612 F.2d 73 (1979). On remand, at Hartford, petitioner
was again convicted by a jury on both Counts, this time before
the Honorable T. Emmet Clarie, Chief Judge. Petitioner was
sentenced to one year imprisonment and a $10,000 committed
fine on each Count, execution of sentence to be suspended on
each Count after six (6) months. The sentence on each Count to
run concurrently. Timely appeal was again taken to the United
States Court of Appeals. Petitioner's conviction was affirmed in
open Court and without written opinion on January 28, 1981.
See attached Appendix, 41a. Petitioner filed a timely “Petition
for Rehearing with Suggestion for Rehearing En Banc” which
was denied on April 21, 1981. See attached Appendix, 42a.

Petitioner's case turned upon his defense at trial that he in
good faith actually believed that the purported returns he filed

4

in 1974 and 1975 were his lawful returns for the calendar years
in question, that he had in all respects believed he had com-
pletely complied with the law, and as such was not willful. This
was the only issue at trial, and was recognized as such by the
Court of Appeals in reversing his first conviction, where the
Court stated the “‘sole issue’’ was “his good faith as a defense to
the charge of willfulness’’. Id., at 79.

To support his defense of good faith, petitioner took the stand,
and testified extensively that he actually believed that his
purported filings complied with the law and as such were his
lawful returns for the years 1974 and 1975. To buttress the
credibility of his testimony, and to establish that it was unlikely
that a man of petitioner's character would commit the offense of
which he was accused, petitioner offered character and reputa-
tion evidence to establish his honesty and truthfulness, including
a Connecticut Superior Court Judge who had known petitioner
for 40 years, his rabbi of 25 years, and a personal friend of 34
years. (A-1123-1140).! With the exception of petitioner's own
testimony, and the exhibits he offered through his testimony,
petitioner's character evidence was the only other evidence
offered in his defense. (A-578-1140).

In written instructions timely submitted to the District Court,
petitioner requested an instruction that character evidence when
considered with all the other evidence, may itself raise a
reasonable doubt in the mind of the jury. (A-92). See Attached
Appendix, 43a. The District Court did not so charge, but rather
gave an instruction of his own, which failed to charge that
character evidence when considered with all the other evidence
may “‘itself’ or “alone” raise a reasonable doubt, or for that
matter at all stating the purpose, function and effect of character
evidence—that character evidence when considered with all the
other evidence may raise a reasonable doubt, without the
“itself” or “alone” reference. Further, that this failure combined

1A” refers to the Joint Appendix filed by petitioner in his appeal below to
the United States Court of Appeals For the Second Circuit, the Judgment of
which is sought to be reviewed here, and the numerical designation represents
the page number therein.

5

with the District Court’s reference that character evidence may
not defeat a finding of guilt beyond a reasonable doubt, mislead-
ingly implied that character evidence could jot raise a reasona-
ble doubt and also indicated that character evidence might only
be considered in doubtful cases when guilt beyond a reasonable
doubt has not been found. The District Court charged:

Normally in criminal cases the character and the repu-

_ tation of the accused is not an issue in the first instance.
The Government has no right to initially introduce any
evidence in a criminal case that an accused has a bad
reputation, however, the accused may, if he so desires,
bring his own character and reputation into the case.
He has the right, a right which in this case the accused
exercised, to present witnesses to testify as to his gen-
eral reputation for truthfulness and honesty in the
community. Such evidence of his good character and
reputation for truthfulness and honesty in the commu-
nity wherein he resides and in his profession should be
considered by you with the other evidence in the case.
If a man by a life of good conduct has gained the
esteem of those with whom he’s been associated, and
has thus attained a fair and honorable reputation for
truth and honesty in the community in which he lives,
or where he works, it is proper that it should count in
his favor in his hour of need. But if you believe from all
of the evidence that the accused is guilty beyond a
reasonable doubt, you should not hesitate to convict
him, notwithstanding that he may have heretofore
borne a good name and reputation; neither should you
fail to give due consideration to his good reputation, if
such he had, when you weigh the evidence against him.
However, you know without reminder from me that
men of good reputation may do wrong and commit
crimes, although such men are less likely to do so than
those who have no reputation to lose. So you, the jurors,
are the sole judges of the credibility of the witnesses
and the weight their testimony deserves. (A-1308-
1309).

6

This charge was duly objected to (A-1333-1334, 1343). The point
was further raised in a timely filed motion for new trial (A-1440).
See attached Appendix, 44a. The motion was denied by the
District Court (A-1442).

On appeal before the Court of Appeals, petitioner called the
Court’s attention to the severe split in the Circuits as to whether
the Supreme Court decisions in Edgington v. United States, 164
U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896), and Michelson v.
United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948),
require the “alone” charge as to character evidence at a federal
criminal trial, or simply a charge stating that character evidence
when considered with all the other evidence may raise a
reasonable doubt, without further stating that it “alone” or
“itself” might do so. Petitioner then informed the Court of
Appeals that the District Court had complied with neither
standard and the charge was against the unanimous weight of
authority in the federal Courts, and was particularly unfair due
to the importance of the character evidence at petitioner's trial
and the limited issue involved—petitionez’s subjective good
faith. It was further noted that the failure to properly charge as
to the effect of character evidence upon the Government's
burden of reasonable doubt, and the affirmative charge that
character evidence should not defeat a finding of guilt beyond a
reasonable doubt, mistakenly implied that character evidence

could not raise a reasonable doubt and that it might only be
considered in doubtful cases.

Petitioner then filed a timely “Petition For Rehearing with
Suggestion For Rehearing En Banc’’ requesting that the 2nd
Circuit resolve the conflict among several of its panel decisions,
which mirrored the general conflict among the various federal
Circuits, and decide whether the ‘‘alone’’ charge is required
under Edgington and Michelson—i.e. that character evidence
when considered with all the other evidence may “alone” or
“itself” raise a reasonable doubt—or whether the Circuit simply
interprets Edgington and Michelson as requiring a charge that
character evidence when considered with all the other evidence
may raise a reasonable doubt, without the additional reference
that it “‘alone’’ may do so. Petitioner again emphasized that the

7

District Court's charge failed under either view and was a
complete break with all federal precedent, both within and
outside the Circuit. Despite the open conflict within the Circuit,
as there is among the Circuits, the Petition For Rehearing was

denied.

REASONS FOR GRANTING THE WRIT

1, THERE CURRENTLY EXISTS A CONFLICT BOTH
AMONG AND WITHIN THE FEDERAL CIRCUITS AS
TO WHETHER THE “ALONE” CHARGE IS RE-
QUIRED AND THE CONFLICT IS BASED UPON DI.
VERGING OPINIONS AMONG AND WITHIN THE
CIRCUITS AS TO THE PROPER INTERPRETATION
OF TWO SUPREME COURT DECISIONS.

There is currently a split both among and within the federal
Circuits as to whether the introduction of character evidence by
a defendant in a federal criminal trial requires a jury charge that
such evidence when considered with all the other evidence in
the case may “‘alone”’ or “‘by itself” raise a reasonable doubt as
to the guilt of the defendant. In effect, there is conflict within
conflict. The dispute revolves around two Supreme Court deci-
sions, Edgington v. United States, 164 U.S. 361, 366, 17 S.Ct.
72, 74, 41 L.Ed. 467 (1896) and Michelson v. United States, 335
U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). Citing
Edgington, the Court in Michelson, supra, at 476, 69 S.Ct., at
219, stated:

He [the defendant] may introduce affirmative testi-
mony that the general estimate of his character is so
favorable that the jury may infer that he would not be
likely to commit the offense charged. This privilege is
sometimes valuable to a defendant for this Court has
held that such testimony alone, in some circumstan-
ces, may be enough to raise a reasonable doubt of
guilt and that in the federal courts a jury in a proper
case should be so instructed. Edgington v. United
States, 164 U.S. 361 17 S.Ct. 72, 41 L.Ed. 467.

8

The 10th Circuit in Oertle v. United States, 370 F.2d 719
(1966), cert. denied, 387 U.S. 948, 87 S.Ct. 2075, 18 L.Ed. 2d
1329 (1966), recognized the extraordinary mass division resulting
from the inter and intra Circuit conflicts on the question, and
identified the fountainhead from which has sprung this splin-
tered precedent:

It is significant that the Circuits have not been consis-
tent in the interpretation of Edgington and the later
case, Michelson v. United States (citation omitted).
Id., at 726.

Each of the eleven Circuits have considered the question, and
the result has been two separate interpretations of the Supreme
Court’s decisions in Edgington and Michelson. The first, is that
when character evidence is offered by a federal criminal defen-
dant, the defendant is entitled to a jury instruction that character
evidence when considered with all the other evidence may
“alone” or “by itself’ raise a reasonable doubt in the mind of
the jury. The second interpretation is that the federal defendant
is only entitled to a charge that character evidence when
considered with all the other evidence may raise a reasonable
doubt, without reference to “‘alone’’ or “by itself’. Both views
require that upon request, the federal criminal defendant is
entitled to a jury charge explaining the effect character evidence
has upon the Government's burden of proof.

Four Circuits have conflicting panel decisions as to whether
the “alone” charge is required, and dicta in United States v.
Darland, 626 F.2d 1235, 1238 (5th Cir. 1980) indicates there
may be a problem in the Fifth Circuit as well.

Those Circuits which have panel decisions requiring the
“alone” charge are the 2nd, 7th, 9th, 10th and District of
Columbia:

2nd Circuit: United States v. Minieri, 303 F.2d 550, 554-555 (2d
Cir. 1962), cert. denied, 371 U.S. 847, 83 §.Ct. 79, 9 L.Ed. 2d 81
(1962); United States v. Cramer, 447 F.2d 210, 219 (1971), cert.
denied, 404 U.S. 1024, 92 S.Ct. 680, 30 L.Ed. 674 (1971).

7th Circuit: United States v. Donnelly, 179 F.2d 227, 233
(1950); United States v. Wicoff, 187 F.2d 886, 889 (1951).

9

9th Circuit: Weedin v. United States, 380 F.2d 657, 660 (1967).

10th Circuit: Peterson v. United States, 268 F.2d 87, 88-89
(1959) (en banc); Bird City Equity Mercantile Exchange v.
United States, 338 F.2d 790, 791-792 (1964); Johnson v. United
States, 269 F.2d 72, 74-75 (1959); Hayes v. United States, 227
F.2d 540, 544-545 (1955); Greer v. United States, 227 F.2d 546,
549 (1955); Miller v. United States, 120 F.2d 968, 972-973
(1941).

District of Columbia Circuit: United States v. Lewis, 157 U.S.
App. D.C. 48, 482 F.2d 632, 637 (1973); United States v.
Wooden, 187 U.S. App. D.C. 1, 420 F.2d. 251, 253 (1969);
Villaroman v. United States, 87 U.S. App. D.C. 240, 184 F.2d
261, 263 (1950); United States v. Colbert, 79 U.S. App. D.C.
261, 146 F.2d 10, 11 (1944).

Those Circuits which have panel decisions rejecting the
“alone” charge but requiring a charge that character evidence
when considered with all the other evidence may raise a
reasonable doubt are the Ist, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th,
10th and District of Columbia:

Ist Circuit: United States v. Lachman, 469 F.2d 1048, 1046
(1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed. 2d
890 (1973).

2nd Circuit: United States v. Fayette, 388 F.2d 728, 737 (1968),
United States v. Lowenthal, 224 F.2d 248, 249 (1955).

3rd Circuit: United States v. Klass, 166 F.2d 373, 378-380
(1948); United States v. Frischling, 160 F.2d 370 (1947); United
States v. Quick, 128 F.2d 832, 835-837 (1942).

4th Circuit: Mannix v. United States, 140 F.2d 250, 253-254
(1944).

5th Circuit: United States v. Fontenot, 483 F.2d 315, 323 (1977).

6th Circuit: Poliafico v. United States, 237 F.2d 97, 114 (1956),
cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed. 2d 597 (1957),
rehearing denied, 353 U.S. 931, 77 S.Ct. 718, 1 L.Ed. 2d 725
(1957); United States v. Brown, 353 F.2d 938, 939-940 (1965).

10

8th Circuit: Sunderland v. United States, 19 F.2d 202, 215
(1927); Black v. United States, 309 F.2d 331, 343-344 (1962),
cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed. 2d 765 (1963).

9th Circuit: Smith v. United States, 305 F.2d 197 (1962), cert.
denied sub nom., Corey v. United States, 371 U.S. 890, 83 S.Ct.
189, 9 L.Ed. 2d 124 (1962).

10th Circuit: Oertle v. United States, supra, at 726-727.

District of Columbia Circuit: Marzani v. United States, 83 U.S.
App. D.C. 78, 168 F.2d 133, 139 (1948) aff'd, 335 U.S. 895, 69
S.Ct. 299, 98 L.Ed. 431 (1948) (per curiam), affirmance upheld
on rehearing, 336 U.S. 922, 69 S.Ct. 653, 93 L.Ed. 1075 (1949).

Note that in the 10th Circuit, the issue was resolved en banc,
in favor of the “alone” charge, only for a subsequent panel to
raise a conflict. See Peterson, supra, and Oertle, supra.

Therefore, there are four Circuits which have internal con-
flicts. They are the 2nd, 9th, 10th, and District of Columbia. As
was indicated earlier, dicta in the recent decision of United
States v. Darland, supra, at 1238, may result in an eventual
conflict in the 5th Circuit as well.

Bearing in mind, the internal conflicts in the 5th, 9th, 10th
and District of Columbia, the Circuits among themselves would
seem to divide as follows: For: 7th, 9th, 10th and District of
Columbia. Against: Ist, 3rd, 4th, 5th, 6th and 8th. The 2nd
Circuit is absolutely impossible to determine due to the number
of conflicting opinions, and the Circuit's refusal to resolve the
matter en banc.

2nd Circuit:

For: United States v. Minieri, supra, at 554-555; United States
v. Cramer, supra, at 219; United States v. Crosby, 294 F.2d 928,
947-948, cert. denied sub nom., Mittleman v. United States, 368
U.S. 984, 82 S.Ct. 599, 7 L.Ed. 2d 523 (1961); United States v.
Kabot, 295 F.2d 848, 855 (1961), cert. denied, 369 U.S. 808, 82
S.Ct. 641, 7 L.Ed. 2d 550 (1961).

Against: United States v. Fayette, supra, at 737; United States
v. Lowenthal, supra, at 249.

1]

Not only does there exist conflict among the federal Circuits,
but within them. This conflict results from varying interpreta-
tions of two Supreme Court decisions, Edgington and Michel-
son. These are classic grounds underlying why the Supreme
Court should exercise its jurisdiction and resolve the conflict, but
they are only part of why the Supreme Court should grant the
Writ of Certiorari.

2. THE QUESTIONS PRESENTED AS TO WHETHER THE
“ALONE” CHARGE IS REQUIRED AND WHETHER
THE PURPOSE, FUNCTION AND EFFECT OF CHAR-
ACTER EVIDENCE MUST BE CHARGED ARE EX-
TRAORDINARILY IMPORTANT QUESTIONS DEAL-
ING WITH THE ADMINISTRATION OF CRIMINAL
JUSTICE IN THE FEDERAL COURTS, AND CAN ONLY
BE RESOLVED BY THE SUPREME COURT.

(a) INASMUCH AS CHARACTER EVIDENCE HAS
THE POTENTIAL OF ARISING AT MOST EVERY
FEDERAL CRIMINAL TRIAL IN THE UNITED
STATES, THE JURY CHARGE AS TO THE CONSID-
ERATION WHICH THE JURY SHOULD GIVE
SUCH EVIDENCE HAS THE POTENTIAL OF AF-
FECTING THE OUTCOME IN ALL FEDERAL
CRIMINAL TRIALS AT WHICH SUCH EVIDENCE
IS OFFERED, AND AS A RESULT, THE LACK OF
UNIFORMITY IN THE LAW AS TO ITS PURPOSE,
FUNCTION AND EFFECT IN THE JURY CHARGE
RESULTS IN A DISCRIMINATORY TREATMENT
OF CRIMINAL DEFENDANTS NOT ONLY FROM
CIRCUIT TO CIRCUIT, BUT FROM JUDGE TO
JUDGE.

The Questions Presented as to whether the “alone” charge is
required, and whether, at a minimum, a charge as to the
purpose, function and effect of character evidence is required
are extraordinarily important. The importance lies not in the fact
that they are critical constitutional questions. Rather, 1) in the
universality of their impact, specifically the great number of
trials at which character evidence is offered and 2) the extraor-

12

dinary importance of their setting, the federal criminal trial,
where the credibility and character of the defendant is a
disputed and essential issue. Character evidence and its purpose,
function and effect, is a common issue which is raised and
resolved everyday in the federal District Courts. The concern
here is that there is discrimination in the resolution of this
common question which potentially can affect the rights of life,
liberty and property, in unequal and varying ways, not due to
the quality of the character evidence, but due to the particular
Circuit, District or Judge. It is the sheer number of times that
character evidence is presented at federal criminal trials, which
makes the resolution of these questions so important. These
questions deal with the everyday nuts and bolts practice of
federal criminal law, and the recurring problem of the extent a
defendant may benefit from character evidence. The threat that
such benefit varies, often not due to the quality of the evidence,
but the address of the courthouse and the name of the Judge,
should not be permitted to continue.

At petitioner's trial, he not only did not receive the charge
that character evidence when considered with all the other
evidence may “‘alone’’ raise a reasonable doubt, but did not even
receive a jury charge that character evidence when considered
with all the other evidence may raise a reasonable doubt.
Further, the District Court did charge that “if you believe from
all the evidence that the accused is guilty beyond a reasonable
doubt, you should not hesitate to convict him, notwithstanding
that he may have heretofore borne a good name and reputation’’
(A-1309). Yet, other criminal defendants in the 2nd Circuit have
received the “‘alone’’ charge specifically stating to the jury that
such evidence when considered with all the other evidence may
alone raise a reasonable doubt. See jury charges approved in
petitioner's Circuit, United States v. Kabot, supra, at 855, n. 1,
United States v. Crosby, supra, at 947-948, n. 28, and compare
them with the charge received by petitioner. The Kabot and
Crosby charges are reprinted in the appendix for the Court's
convenience. See attached Appendix, 45a and 46a. When it is
considered that the 2nd Circuit in United States v. Schiff, supra,
termed petitioner's criminal intent “‘a key issue at the trial’’, Id.,

13

at 81, the discriminatory charge as to the character evidence
received by petitioner is not only egregious in form but sub-
stance and cannot be said to have not been decis‘ve in a case
where the jury deliberated two days, announced at one point
they were a hung jury (A-1404), and rendered their verdict only
after the Allen charge (A-1404-1410). The concern is that this
conflict in the law has been and will continue to be outcome
determinative in many criminal trials.

It is impossible to know how many verdicts, or which ones,
were or will be influenced. This does not mitigate the importance
of the questions, but rather renders them even more urgent. Due
to the frequency of character evidence, this impermissible affect
upon the fair and equal administration of the criminal justice
system looms ever greater, and the need to install a uniform rule
more imperative.

A decision by the Supreme Court in this case would have an
influence on almost all federal criminal defendants whose lives
are forever influenced by the handful of hours spent in Court,
and thereby take a further step toward a system of justice which
renders such awesome decisions based upon the relevant individ-
ual facts under a uniform law, and not the varying geography.

(b) THE ISSUES ARE RIPE AND THERE IS LITTLE
LIKELIHOOD THAT THE CIRCUITS WILL RE-
SOLVE THE CONFLICT BOTH AMONG AND
WITHIN THEMSELVES AT ANY NEAR TIME IN
THE FUTURE.

The conflict below has over the years become more splintered
with the passage of time. Whether the “alone” charge is
required or simply a charge as to the function, purpose and
effect of the character evidence—i.e. that character evidence
may with all the other evidence raise a reasonable doubt—has
revolved around the varying interpretations of two fairly old
Supreme Court decisions. Edgington was decided in 1896 and
Michelson in 1948. The passage of 33 years since Michelson, has
resulted in a split among the Circuits and within at least four of
them. The character evidence charges vary substantially from

14

Circuit to Circuit and within several Circuits. Further, the entire
dispute revolves around two Supreme Court decisions, the
interpretation of which, the Circuit Courts and various panels
within individual Circuits, have not been able to agree.

In the 10th Circuit, the Court of Appeals sat en banc in
Peterson v. United States, supra, where the defendant, as in
petitioner's case, was defending solely under lack of willful
intent under the tax statutes, to reconsider whether the “alone”
charge was required, as the 10th Circuit had previously held on
numerous occasions. The Court reaffirmed its earlier decisions
and reversed the conviction for failing to so charge. The Court
clearly stated the issue and its position:

Relying on Edgington v. United States (citation omit-
ted), this Court, in Miller v. United States, 10 Cir.,
120 F.2d 968, 971-972, adopted the rule that when a
defendant offers evidence of good character the jury
must be instructed that character testimony may be
such that it alone may create a reasonable doubt,
although without it the other evidence would be
convincing. This rule was followed in Hayes v. United
States, 10 Cir., 227 F.2d 540, 545, and Greer v. United
States, 10 Cir. 227 F.2d 546, 549. Reliance on Edging-
ton is said to be misplaced. The question of whether
Edgington requires an instruction that character evi-
dence alone may create a reasonable doubt or is
satisfied by an instruction that the jury should consider
such evidence along with all the other evidence in the
case in determining guilt or innocence has produced a
contrariety of opinion among the Circuits. While this
conflict has not been resolved by the Supreme Court
it is significant that in Michelson v. United States,
supra, that court said, by way of dicta and in obvious
reference to Edgington, that character evidence
‘alone, in some circumstances, may be enough to raise
a reasonable doubt of guilt and that in the federal
courts a jury in a proper case should be so instructed’.
This sustains the interpretation which has been placed
on Edgington by the Miller, Hayes and Greer deci-
sions of this court. Id., at 88-89.

15

Even though the 10th Circuit en banc reaffirmed the require-
ment of the “‘alone’’ charge, a panel in the Circuit a short-time
thereafter came down with a contrary decision. See Oertle v.
United States, supra, at 726-727.

In the 9th Circuit, the Court in Smith v. United States, supra,
at 205-207, relying on Edgington and Michelson, rejected the
10th Circuit’s authority that the “alone” charge is required, and
recognized as sufficient a charge that character evidence when
considered with all the other evidence may raise a reasonable
doubt. Yet, the same Circuit in Weedin v. United States, supra,
at 660, subsequently held that the “‘alone’’ charge was required,
citing both Michelson and 10th Circuit precedent.

The 2nd Circuit's position is unintelligible. A case may be
selected for either point of view. While petitioner cited the
Minieri and Cramer cases, the panel in petitioner's case cited
Fayette in rendering judgment in open Court summarily affirm-
ing petitioner's conviction. Yet, petitioner's request for a Rehear-
ing En Banc to resolve the conflict within the Circuit pursuant
to FRAP 35(a), particularly considering the panel's failure to
recognize or deal with the conflict, was denied. Inasmuch as the
2nd Circuit refuses to hear the issue en banc, there is little
prospect that the conflict within the Circuit will be resolved
anytime in the near future which absent action by the Supreme
Court, will continue the discriminatory charges received by
criminal defendants within the 2nd Circuit.

The conflicts in the 2nd, 9th and 10th Circuits involve varying
decisions from the 1950's to the present, with no hint that a final
resolution will be forthcoming. Passage of time has only created
more doubt, and widened the split within the Circuits.

Nor obviously has the passage of time resulted in an evolution
toward a uniform rule among the Circuits. In Peterson, the 10th
Circuit noted in 1959, that the 7th and 10th Circuits followed
the “‘alone’’ rule, while the 2nd, 3rd, 4th, 5th, 6tli, 8th, 9th and
D.C. Circuits adopted only the charge that character evidence
may raise a reasonable doubt. Id., at 89 n. 3. Since then, a
conflict has resulted in the 10th Circuit, the D.C. Circuit has
adopted the “alone” charge, the 9th Circuit has in its most
recent decision also adopted the “‘alone’’ charge, and the 2nd

16

Circuit has had four panel decisions which recognize the “alone”
instruction, as well as one which takes a contrary position. A
shift in four Circuits.

The result, of course, is that in those Circuits where the law is
conflicting, such as the 2nd Circuit, the trial judge must decide
the question not based upon Circuit precedent, but his own
individual interpretation of Edgington and Michelson. The
result is, and will continue to be, the disparity in the instructions
that federal criminal defendants will receive as is evidenced
from the charge received by petitioner and that received by the
defendants in Kabot and Crosby. The same disparity exists from
Circuit to Circuit due to the split among the eleven Circuits.

The bottom line is that the only hope for a uniform rule even
within several of the Circuits, is Supreme Court action. The
issue has been thoroughly considered for a number of years by
the Courts of Appeals, each Circuit has addressed the questions,
and therefore the matter may be considered timely for Supreme
Court review. The conflict involved is not narrowly confined and
will have immense future consequences due to the extaordinary
number of federal criminal defendants who have been and will
continue to be prejudiced due to the disparity in treatment on
an issue which is common to the federal criminal justice system,
and has the potentiality of arising at almost all federal criminal
trials. This is not an issue which may only arise in a select and
specified number of cases, as where a particular statute is
charged or constitutional provision involved, but rather sweeps
across the federal criminal justice system touching the trials and
lives of most all involved.

Such a disparity on such a fundamental and recurring question
that affects so many in proceedings of such great importance, if
permitted to continue, may affect the public’s confidence in the
fairness and equality of the federal criminal justice system.

Therefore, uniformity is imperative. Inasmuch as the hub of
this important and far-reaching conflict is the interpretation of
two old Supreme Court decisions, the disparity in the treatment
suffered by so many in such important matters may only be
finally resolved by the Supreme Court.

17

3. THE DISTRICT COURT’S REFUSAL TO CHARGE AS
TO THE “ALONE” INSTRUCTION, AND AT THE
SAME TIME FAIL TO CHARGE AS TO THE PURPOSE,
FUNCTION AND EFFECT OF CHARACTER EVI-
DENCE, SPECIFICALLY THAT SUCH EVIDENCE
WHEN CONSIDERED WITH ALL THE OTHER EVI-
DENCE MAY RAISE A REASONABLE DOUBT, WAS
CONTRARY TO BOTH EDGINGTON AND MICHEL-
SON AS WELL AS THE LAW OF EVERY CIRCUIT AS
TO THE REQUIRED CHARGE REGARDING CHAR-
ACTER EVIDENCE,

(a) THE SUPREME COURT SHOULD EXERCISE ITS
SUPERVISORY POWERS TO REVIEW THE DIS-
TRICT COURT’S CHARGE REGARDING CHAR-
ACTER EVIDENCE WHICH IS CLEARLY CON-
TRARY TO ALL FEDERAL PRECEDENT.

While petitioner believes that the “alone” charge is the
correct charge, at the petitioner's trial the District Court gave
neither charge recognized by the eleven Federal Circuits. Not
only did the District Court fail to instruct as to the “alone”
element, but did not even charge the jury that character
evidence when considered with all the other evidence may raise
a reasonable doubt. The latter has been the bare minimum
required by the Courts of Appeals in their interpretation of the
requirements of the Edgington and Michelson decisions. In
Edgington, the Supreme Court in considering the erroneous
instruction given by the trial court that character evidence may
only be considered if the mind of the jury “hesitates’’ as to guilt,
stated:

Whatever may have been said in some of the earlier
cases to the effect that evidence of the good character
of the defendant is not to be considered unless the
other evidence leaves the mind in doubt, the decided
weight of authority now is that good character, when
considered with other evidence in the case, may
generate a reasonable doubt. Id., at 36, 17 S.Ct., at 74
(emphasis ours).

18

The instruction is recognized in every Circuit, and is the
required charge in those Circuits which reject the “alone’’
charge:

3rd Circuit: United States v. Frischling, supra, at 370; United
States v. Quick, supra, at 835-837; United States v. Klass, supra,
378-380.

4th Circuit: Mannix v. United States, supra, at 254.

5th Circuit: United States v. Fontenot, supra, at 323.

6th Circuit: Poliafico v. United States, supra, at 114.

8th Circuit: Sunderland v. United States, supra, at 214-215.

While the several Circuits are severely divided as to whether
the ‘‘alone’’ charge is required, all the Circuits hold that a
charge as to purpose, function and effect of character evidence is
required, and when considered with all the other evidence may
raise a reasonable doubt, and that such a charge is required in
Edgington:

the rule of the Edgington case, laying aside technical
verbiage is this: That where evidence of good charac-
ter is introduced on behalf of the defendant, he is
entitled and especially if a request is made, to an
instruction, setting forth (1) the purpose and function
of such evidence, viz. to generate a reasonable doubt
and setting forth (2) the probative status of such
evidence, viz. that it is entitled to be considered
whether the other evidence in the case be clear or
doubtful; and setting forth (3) the possible effect of
such evidence, viz. that when it is considered with the
other evidence, if a reasonable doubt is created as to
defendant's guilt, he is entitled to an acquittal. Sun-
derland v. United States, supra, at 215.

Therefore, the District Court failed to comply with either
interpretation of this Court's decisions in Edgington and Mich-
elson, contrary to all federal precedent in the Courts of Appeals.

The only issue at petitioner's trial was his alleged criminal
intent—willfulness—whether he in good faith believed that his

19

purported 1974 and 1975 federal income tax returns complied
with federal law. On this point, the whole trial focused, and the
District Court permitted a mountain of evidence (See Printed
Record below, “Appellant's Exhibits, Volumes I and II’’).

The 2nd Circuit in reversing petitioner's first conviction,
termed it “‘a key issue at the trial’’, and held the offer of a
television show “‘irreparably prejudiced’’ the defendant's case
“on the sole issue left to the jury—his good faith defense in the
charge of willfulness”. United States v. Schiff, supra, at 79. The
Government's prosecution theory was that petitioner and his
claimed good faith beliefs were a “total fraud” (A-206), that he
was running a “‘flim-flam” (A-935), and that petitioner's legal
beliefs were not a good faith understanding of the law but a
guise for selling seminars and lectures to the public and as such
he was “fleecing the public’’ (A-1289-1290). Petitioner took the
stand in his own defense, and while engaging in a self-examina-
tion of himself, asking his own questions and giving his own
answers, the District Court would interrupt terming his testi-
mony a “seminar’’ and “lecture” (A-584, 622, 784, 1095, 1102).
To support his testimony that he acted in good faith, and that it
was unlikely he would commit the crime of which he was
accused, petitioner offered character testimony, including a
Connecticut Superior Court Judge to testify as to his honesty
and truthfulness. Outside of the petitioner's testimony and
exhibits which were offered through his testin-ony, his character
evidence was the only other evidence presented at his trial. The
issue was the truthfulness of petitioner's testimony as to his
claimed good faith belief that he had complied with the law.
Based upon the issue, the 2nd Circuit's recognition of it as ‘a
key issue at the trial’’, the Government's prosecution theory, the
trial judge’s comments as to petitioner's testimony, the District
Court's total failure to comply with the current authority of any
Circuit as to either of two views of Edgington and Michelson is
completely unfair. Particularly in light of petitioner's requested
instruction, submitted in writing and the Court’s promise to
charge in substance, which it did not do, imposed little burden
upon the District Court to come within some recognized view of
the law. There was no reason for the failure to do so, and the
District Court's substantial departure from the minimum re-

20

quired, contrary to all federal precedent, in fairness ought to be
corrected through the exercise of the supervisory powers of the
Supreme Court.

(b) THE DISTRICT COURT NOT ONLY FAILED TO
GIVE THE REQUIRED CHARGE AS TO THE PUR-
POSE, FUNCTION AND EFFECT OF CHARACTER
EVIDENCE CONTRARY TO ALL FEDERAL PREC-
EDENT, BUT FURTHER CHARGED THAT CHAR-
ACTER EVIDENCE COULD NOT DEFEAT A
FINDING OF GUILT BEYOND A REASONABLE
DOUBT, WITHOUT ALSO BALANCING THE
CHARGE WITH AN INSTRUCTION THAT CHAR-
ACTER EVIDENCE MAY ALSO RAISE A REASON-
ABLE DOUBT WHEN CONSIDERED WITH ALL
THE OTHER EVIDENCE, AND AS SUCH THE
COURT SHOULD EXERCISE ITS SUPERVISORY
POWERS TO CORRECT THIS CLEAR BREAK
WITH FEDERAL LAW.

The District Court not only failed to charge that character
evidence with all the other evidence may raise a reasonable
doubt, but further charged that character evidence could not
defeat a finding of guilt beyond a reasonable doubt, which
without a balancing charge that character evidence could raise a
reasonable doubt, misleadingly implied it could not raise a
reasonable doubt or might only be considered in doubtful cases.

The District Court not only failed to properly charge as to the
purpose, function and effect of character evidence, but charged
in a manner which is contrary to it—that character evidence
with all the other evidence may generate a reasonable doubt.
The District Court not only failed to comply with all the federal
precedent, but misleadingly charged contrary to the purpose of
the instruction that he was required, and failed to give. This
resulted in a denial of Due Process under the Fifth Amendment
since the very reason why character evidence is offered—to
generate a reasonable doubt—was not only not brought to the
jury's attention, but further was contradicted by a charge that
stated that character evidence couldn't defeat a finding of guilt

21

beyond a reasonable doubt, misleadingly implying that character
evidence might only be considered where there was a question
as to guilt—the very charge rejected by the Supreme Court in
Edgington. As such, the Supreme Court should exercise its
supervisory power to correct this clearly egregious error in the
District Court's charge.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that this
case presents 1) a recurring federal question dealing wih the
administration of federal criminal justice upon which the federal
Circuits are severely divided, the resolution of which turns upon
the interpretation of two decisions of this Court and 2) which
involves an important question of federc! law that can only be
settled by this Court.

The Petitioner respectfully requests that the writ of certiorari
be granted to review the judgment of the United States Court of
Appeals for the Second Circuit and that the Court summarily
reverse the judgment of the Court of Appeals or set the case
down for oral argument or such other consideration as the Court
deems appropriate.

Respectifully submitted,

Dated: June /9, 1981
DOUGLAS GILMORE
11 Harding Lane
Westport, Connecticut 06880
(203) 226-6277
Attorney for Petitioner,

Irwin A. Schiff

APPENDIX

22a

(The following statement does not constitute a formal opinion of
the court and is not to be reported. It shall not be cited or
otherwise used in unrelated cases)

United States Court of Appeals
For The Second Circuit

UnrrepD STATES OF AMERICA,
Plaintiff-Appellee,

v. Docket No. 80-1297

Inwin A. SCHIFF,

Defendant-Appellant.
Before:

HON. J. EDWARD LUMBARD, ELLSWORTH A.
VAN GRAAFEILAND and AMALYA L. KEARSE,
Circuit Judges.

New York, New York,
January 28, 1981

Statement made by the court at disposition of appeal in open
court.

JUDGE VAN GRAAFEILAND

We commend you for an excellent and zealous argument on
behalf of your client but we find no merit in your appeal,
counsel.

On this appeal from a judgment convicting defendant on two
counts of violating 26 U.S.C. § 7203 appellant asserts nineteen
claims of error, including, among others, the contention that the
district court emphasized certain parts of the charge by raising

23a

his voice and apeaking in a staccato manner. We see no need to
discuss these allegations individually since most of them are

specious.

We are satisfied that appellant was given a fair trial. The
district judge gave him the utmost leeway in presenting his case.
He had two attorneys present to help him. There is absolutely
no merit in his contention that he was forced to question himself.
In referring to defendant's corporate tax return the Government
was simply proceeding through a door that the defendant had
opened and only commented on matters already before the jury.

The district court’s charge on willfullness was correct. See
United States v. Ruffin, 575 F.2d 346. So also was its charge
concerning the Federal Reserve System and Federal Reserve
Notes. See United States v. Wangrud, 533 F.2d 495. This Court
has already disposed of appellant's Fifth Amendment argument
on the prior appeal. See 612 F.2d at 77. Finally, the district
court's charge on character evidence was in accordance with the
law of this Circuit. See United States v. Fayette, 388 F.2d 727.
The evidence of guilt was substantial, indeed overwhelming.
The judgment is affirmed.

24a

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

UNITED STATES OF AMERICA,
Appellee,

No. 49,

me Docket 79-1139.

Inwin A. SCHIFF,
Appellant.

Douglas Gilmore, Westport, Conn. (Raymond W. Ganim,
Stratford, Conn., of counsel), for appellant.

Richard Blumenthal, U.S. Atty., D. Connecticut, New Haven,
Conn. (Michael Hartmere, Asst. U.S. Atty., New Haven, Conn.,
of counsel), for appellee.

Before LUMBARD, FRIENDLY and GURFEIN, Circuit
Judges.

GURFEIN, Circuit Judge:

This case raises an issue never before considered in a federal
court of appeals: the question of the admissibility in evidence in
a jury trial on a criminal information of the videotape of 2 “talk
show” which includes the opinions of unsworn strangers on the
very issues before the jury. Appellant Irwin A. Schiff, a self-
proclaimed iconoclast in the field of federal income taxation, and
a prolix writer and lecturer on the subject of money, appeals
from his conviction for willful failure to file personal income tax
returns for the years 1974 and 1975. On April 18, 1978, a two
count information was filed against Schiff in the United States
District Court for the District of Connecticut. The information
charged Schiff with willful failure to file personal income tax
returns in violation of 26 U.S.C. § 7203 for the calendar years

25a

1974 and 1975.' After a trial before District Judge Daly and a
jury, Schiff was found guilty on both counts. He was not charged
with tax evasion, or obstruction of the Government in its efforts
to collect taxes, omissions which will become material in the
later discussions of relevancy.?

The principal claim on appeal is that the prosecution offered
and the trial judge erroneously allowed in evidence, over
objection, a videotape of Schiff's appearance on April 12, 1978
on Tom Snyder's NBC talk show “The Tomorrow Show” with
Snyder and another guest.

We have viewed the videotape, as did the jury, and conclude
that its admission was prejudicial and prevented Schiff from
getting a fair trial. To understand why the United States
Attorney should not have offered the videotape and why the
judge should have refused to admit it we must describe the
scene and define the issue:

Appellant was in the insurance business. He also fancied
himelf a “‘constitutionalist’’, an extremist who reserved the right
to interpret the decisions of the Supreme Court as he read them
from his layman’s point of view regardless of and oblivious to
the interpretations of the judiciary. One can describe his attitude
either as contumacious of governmental authority for the pur-
pose of advancing the common weal, or as that of a clever faker
who used his own distortions of the Constitution as a flimsy
excuse for failing to pay his income taxes.

' 26 U.S.C. § 7203 provides:

Any person required under this title to pay any estimated tax or tax, or
required by this title or by regulations made under authority thereof to
make a return (other than a return required under authority of section 6015
or section 6016), keep any records, or supply any information, who willfully
fails to pay such estimated tax or tax, make such return, keep such records,
or supply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not more
than $10,000, or imprisoned not more than 1 year, or both, together with
the costs of prosecution.

2 On March 29, 1979 he was sentenced on each count to concurrent one year
terms of imprisonment, with execution of sentence suspended after six months,
six months probation, a fine of $10,000 and a special condition that probation
would terminate upon payment of the fine.

26a

In 1968 Schiff ‘testified before the Senate Committee on
Banking and Currency, registering his opposition to the removal
of gold backing from Federal Reserve Notes. He wrote a book,
first published in 1976, entitled The Biggest Con: How the
Government is Fleecing You. The book includes such chapters
as “U.S. Taxes—How They Have Converted the American
Worker into a Serf’ and “Taxes: The Arsenic in Our System.”
Schiff s views on taxation and on Social Security (“The World's
Biggest Chain Letter”) have appeared in other publications as
well.* Beginning in 1977, Schiff conducted seminars on taxation.

So long as he made his attacks on the system in appearances
before congressional committees, in articles in current periodi-
cals, and even in rather evangelistic seminars on tax resistance,
he was probably protected by the First Amendment. But he
went further and he took his own advice literally.

Though he had filed personal income tax returns through
1973, disclosing his income, he decided for the calendar years
1974 and 1975 to file a “return” on the printed form 1040, but
without disclosure of his gross income.

Accordingly, for each of these years, Schiff sent to the IRS a
Form 1040, but on each form the title was altered to read “U.S.
Individual Income Confession.’’ Neither form contained any
income data whatever. Instead, the various boxes were filled
with assertions of assorted constitutional rights. Each form
opened with the statement: “The 16th Amendment giving
Congress the right to ‘collect taxes on income’ in no way
abolished the rights secured to me by the 4th, 5th, 6th, 7th, 8th,
9th, 10th, & 13th (I will not be an involuntary serf of the Federal
Government)... .’’ In the signature box at the end of each form
appeared the statement, ““FOR SHAME! The I.R.S. is asking
me to cast aside basic constitutional safeguards which as a
patriotic citizen wishing to uphold and preserve the Constitu-
tion—I cannot do.”

5 A reprint of an article by Schiff, entitled “The Biggest Con” and printed in
Argosy appears in the Congressional Record, 94th Cong., 2d Sess., 122 CONG.
REC. E4643-4645 (August 25, 1976). An interview of Schiff by the Washington
Star regarding his views on Social Security is reprinted in the Congressional
Record, 95th Cong., Ist Sess., 123 CONG. REC. S 19506-507 (December 15,
1977).

27a

The 1974 submission was accompanied by a 36-page state-
ment of alleged illegal and unconstitutional acts of the federal
government with exhibits marked A through T. Schiff charged,
inter alia, that the Government was guilty of illegally operating
the Social Security “chain letter,” counterfeiting coin in viola-
tion of article 1, section 8 of the Constitution, imposing invol-
untary servitude by means of an income tax and imposing an
unauthorized tax by promoting inflation. The 1975 submission
was accompanied by similar allegations.

Schiffs basic themes apparently were that Federal Reserve
Notes are merely promises to pay since they were no longer
required to be backed by any statutory gold reserve and that
they are, hence, not “income”; and that the Sixteenth Amend-
ment which permits the United States to lay a tax on income
permits the Government only to tell him how much he owes but
does not require him to compute the tax himself, with the
corollary that compelling him to do so compels him to be a
witness against himself in violation of the Fifth Amendment
privilege against self-incrimination.

In 1976 Schiff filed Amended U.S. Individual Returns (Form
1040x) for the relevant years. The Amended Returns stated that
Schiff could not compute and warrant the accuracy of the 1040s
because he could not understand the complicated internal
revenue laws and that “‘a law that is incomprehensible is invalid,
unconstitutional and uninforceable [sic].”” In 1977, he submitted
additional 1040s for 1974 and 1975. He labeled each of these
forms “PETITION FOR REDRESS OF GRIEVANCES” and
stated on the forms, “I offer to amend or file again if you can
show me how to do so without waiving my constitutional rights.”

Each of these forms was accompanied by 100 pages of
attachments consisting primarily of correspondence between
Schiff and the Board of Governors of the Federal Reserve System
as well as other federal agencies.

The Trial

The defense did not seriously contend that the conglomeration
of papers filed along with the almost blank 1040 form constituted
the tax return required by law. Instead appellant argued that he

28a

could not constitutionally be compelled to file a return disclosing
his income (which by his dialectic regarding bank notes never
did become income) because of his privilege not to be a witness
against himself in any event. Relying upon his own gloss on case
law like United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71
L.Ed. 1037 (1927),4 he asked the jury to find that his conduct
was not willful in the criminal sense but was rather a good faith
effort on his part to restore the Constitution to its rightful place.

There was no dispute that the defendant’s wholly owned
corporation, Irwin A. Schiff, Incorporated, filed corporate in-
come tax returns for the years preceding 1974 and thereafter,
and that the returns disclosed that the defendant had received,
in 1974 and 1975, salary in the sum of Fifteen Thousand Six
Hundred Dollars ($15,600), a sum sufficient to require the filing
of a personal income tax return. 26 U.S.C. § 6012. The prosecu-
tion did not have to prove on this indictment that the defendant
had any net income.

The case then was not one in which the defendant had failed
to file any return that would alert the Government to his
existence. This was a case where the Government was prosecut-
ing criminally a person who disclosed his name and address, but
who filed a form that was clearly inadequate under the statute
and regulations. United States v. Johnson, 577 F.2d 1304, 1311
(5th Cir. 1978); United States v. Jordan, 508 F.2d 750 (7th Cir.),
cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1975);
United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414
U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v.
Porth, 426 F.2d 519 (10th Cir.), cert. denied, 400 U.S. 824, 91
S.Ct. 47, 27 L.Ed.2d 53 (1974).

[1] Judge Daly knew that the issue for the jury was narrow:
whether Schiff had acted in reasonable good faith. As he later

* In United States v. Sullivan, supra, the Supreme Court held that income
derived from business in violation of the National Prohibition Act was subject
to taxation. Justice Holmes, writing for the Court, stated that the defendant
could have exercised his Fifth Amendment right with respect to particular
questions on the return, but could not “draw a conjurer’s circle around the
whole matter by his own declaration that to write any word upon the
government blank would bring him into danger of the law.”’ Id. at 264, 47
S.Ct. at 608.

29a

charged the jury, income received in Federal Reserve Notes is
taxable income under the law and “‘a taxpayer's return [which]
does not contain any information relating to the taxpayer's
income from which the tax could be computed, is not a return
within the meaning of the law.”’ The judge also charged that the
Fifth Amendment does not give a person the right to withhold
the required information on the return concerning items the
disclosure of which would not incriminate him or tend to
incriminate him, and that even as to items which might incrimi-
nate him, he is required to state the amount of his income even
if he does not reveal its illegal source. See United States v.
Johnson, supra, 577 F.2d at 1311; United States v. Egan, 459
F.2d 997, 998 (2d Cir.), cert. dented, 409 U.S. 875, 93 S.Ct. 123,
$4 L.Ed.2d 127 (1972). These instructions disposed of much of
the case, however the issue of willfulness had to be left to the
jury. Cf. Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct.
240, 96 L.Ed. 288 (1952) (charge of ‘presumptive intent’ was
error); United States v. Murdock, 290 U.S. 389, 393-94, 54 S.Ct.
223, 78 L.Ed. 381 (1933) (judge erred in expressing to the jury
his opinion that the government had met its burden in proving
willful failure to provide information regarding tax returns. )

[2} In a prosecution under § 7203, the Government need not
produce direct evidence to show guilty intent; willfulness may
be shown by means of circumstantial evidence alone. United
States v. MacLeod, 436 F.2d 947, 949 (8th Cir.), cert. denied,
402 U.S. 907, 91 S.Ct. 1878, 28 L.Ed.2d 647 (1971). See also 10
Mertens, Law of Federal Income Taxation § 55A.09 (3d. ed.). In
this case, the prosecution offered evidence that when Schiff's
accountant reminded him of his obligation to file a personal
income tax return for the calendar year 1974 the defendant
objected to the preparation of the return and requested the
accountant to voice the constitutional objections to the IRS, and
that the accountant declined to do so. In addition, the Govern-
ment showed that the defendant had filed corporate income tax
returns for 1974 and 1975, that he had filed personal income tax
returns for years prior to 1974, and that he had received income
in 1974 and 1975. The Government also demonstrated that the
defendant filed no return at all for 1977, and offered credible
evidence that notices of failure to file in 1974 and 1975 had been

30a

mailed to Schiff.5 Furthermore, Schiff, in his purported return,
stated that for personal reasons he had found it inconvenient to
keep any clear records of his finances for the years in question.

[3] There was, accordingly, sufficient evidence of willfulness.
See United States v. MacLeod, supra, 436 F.2d at 950; United
States v. Browney, 421 F.2d 48, 50 (4th Cir. 1970). Cf. United
States v. Magnus, 365 F.2d 1007, 1011 (2d Cir. 1966), cert.
denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967) (prior
taxpaying history probative of willfulness).

Before the close of the prosecution case, therefore, the jury
had heard testimony that the defendant was required to file a
return showing his income, that he failed to do so for several
consecutive years, and that his only excuse was, as developed in
his statements attached to the 1040 forms in evidence, that the
Government was wrong in requiring him to state his income. It
was evident that the only defense left to the defendant was an
assertion of his good faith.®

At this point, as part of its direct case, the Government offered
in evidence a videotape of Schiff's appearance on April 12, 1978
on NBC's “The Tomorrow Show.” The April 12 appearance was
the second by Schiff; he had appeared several weeks earlier as

5 Although the Government contended that computer-generated notices that
stated “Amended Return Filed—No Original’ were sent to Schiff in 1975 and
1976, Schiff testified that it was not until 1977 that he received letters notifying
him that his purported “returns’’ had been received but were legally inade-
quate.

* The judge ultimately charged:

Even if you find that the defendant erroneously claimed his Fifth
Amendment privilege, his conduct is not willful if you find that he acted in
accordance with a good faith understanding of the law, based upon, among
other things, a good faith reliance on judicial decisions of the federal courts
or a good faith belief that the documents filed for the taxable years 1974
and 1975 constituted in each case an income tax return. The defendant's
views need not be legally correct, just as long as he honestly believed and
acted br oo them in good faith.

See United States v. Johnson, supra, 577 F.2d at 1312.

The judge noted also that “the only bad purpose necessary for the
Government to prove in this case is the deliberate intention not to file returns
which the defendant knew ought to be filed" (emphasis added).

Sla

the only guest on the show and was invited to return after
overwhelming viewer response.’

Testimony by a Government witness showed that on April 3,
1978 the producer of the show had telephoned Scott Waffle, an
IRS Public Affairs official, and invited the IRS Commissioner to
appear with Schiff on the television show. The Commissioner
declined the invitation but the IRS provided the show instead
with several Media Relations fact sheets regarding tax protesters,
including one general fact sheet and one on constitution-based
protests. The fact sheets apparently were not prepared specifi-
cally for the show but did reflect the views of the IRS. They
were used by Snyder in his “talk’’ with Schiff.

In addition, the IRS videotaped the broadcast, and it is this
videotape that was received in evidence.

On the April 12th show, Schiff shared the spotlight with the
other guest, James Schnake. The host, Tom Snyder, introduced
Schnake as a trial attorney specializing in civil and criminal
fraud cases, and as a former chief of the criminal division of the
United States Attorney's Office in Northern California. Accord-
ing to Snyder, Schnake was responsible for the prosecution of all
criminal IRS cases in Northern California from 1957 through
1961.

In introducing the videotape prepared by the IRS, the Gov-
ernment did not contend that the statements made by Snyder
and Schnake were relevant, but sought admission of the tape in
its entirety solely for the purpose of showing Schiff s responses.

The defense objected to admission of the tape on the grounds
of unfair prejudice and lack of authentication. The judge
listened to the tape and then admitted it over these objections.
Judge Daly summarized his position as follows: ‘Since the tape
is offered for the statements made thereon by the defendant,
and since I will charge the jury they may not consider it for any
other purpose, it seems to me that a fair trial will not be

7 In his opening introductions, Snyder stated to Schiff, “As | say, Irwin, your
visit here two weeks ago set off one of the biggest viewer responses we have
ever had in this program.”

32a

imperilled by the admission of the tape.”’ In addition, the court
overruled the objection based on the alleged failure to authenti-
cate, noting that there was no indication that IRS had altered
the tape, though, in fact, the objection was based on a different
ground—a failure to show completeness; the show had been
prerecorded the night before it was broadcast and there was no
proof that the IRS copy taken from the broadcast was not an
already edited version of the actual prerecorded tape.®

At the close of the Government's case, the defense moved for
a judgment of acquittal on the ground that the Government had
not met its burden with respect to willfulness. The defense
argued that no evidence of willfulness had been presented other
than the videotape and that a 1978 videotape could not establish
the existence of the requisite state of mind in the relevant
period, 1974-1976. The District Court denied the motion, stating
that there was ample evidence of intent, independent of the
tape, to go to the jury. As we have indicated, we agree.®

“The Tomorrow Show" Videotape and
Unfair Prejudice

Counsel have called our attention to no case in which a talk
show on television involving a defendant has been allowed as
evidence in a criminal case. We must now consider whether
there was any legitimate purpose for its admission, and whether,
if it was relevant, the statements made by the participants were
not only inadmissible hearsay but also irreparably prejudiced the
defendant on the sole issue left to the jury—his good faith as a
defense to the charge of willfulness.

[4, 5) Obviously putting a dialogue on tape does not make it
less subject to the Rules of Evidence. In the normal course of

® Schiff admitted at trial that the tape, to the best of his recollection, was a
“fair and actual portrayal of what [he] said on that night,"’ but also noted that
the show had been taped and rebroadcast, that there is an editor of the show,
and that he couldn't say with “actual certainty’ whether the videotape
included “everything.”

® The defense renewed its objections to the videotape at the close of the trial
by means of alternate motions for a new trial or judgment of acquittal. The
court emphasized that there had been no suggestion of Government impro-
priety in the preparation of the tape. Both motions were denied.

33a

testimony with respect to admissions by a party, there is a
witness on the stand whose other testimony and opinion are
limited by the rules of relevance and competence and, in the
case of expert opinion, by the usual tests of expert qualification.
Even when a witness testifies that certain statements were
adopted by the defendant, his testimony will normally be limited
to those particular statements which it is asserted were adopted.
It will not provide sanction for irrelevant or incompetent evi-
dence. Here the television “witnessess’’ were neither sworn nor
qualified as experts.

The threshold question is what the prosecution hoped the
statements of Schiff on the videotape proved—in essence a test
of relevancy. On appeal the Government asserts as justification
that the jury was told that statements by Snyder and Schnake
were to be considered “only for the fact that they were made,
and that the defendant ‘had certain responses or reactions.’ ”
The Government stresses, moreover, that the court emphasized
that “the reactions and responses themselves should be taken
into account only if the jury concluded that any of them were
relevant to the issue of intent.”

One would have supposed that the prosecution would be able
to point to particular responses by Schiff which could be
categorized as admissions against interest on the issue of whether
he really believed the legal arguments which he had addressed
to the IRS. We have been pointed to no such admissions. On the
contrary, the Government curiously points to the compatibility,
rather than to the incompatibility, of appellant's statements on
the television show with his statements on his ‘returns’ as
emphasizing rather the consistency of his beliefs and actions.

The television show was broadcast on April 12, 1978, two
years after the last date on which the failure to file the 1975
return would have become a crime.'® If considered nevertheless

© In United States v. Bourque, 541 F.2d 290, 294 (ist Cir. 1976), the court

Just as subsequent conduct cannot relieve a taxpayer from criminal liability
for failure to file tax returns on or before their due date [citations omitted]
we do not think that subsequent events can transform an act of omission,
innocent when it occurred, into a criminal act.

34a

as a warning to cure an alleged criminal omission as evidence. of
good faith, the broadcast occurred only six days before the
information was filed against appellant on April 18, 1978—
hardly enough time to permit the taxpayer to change his return
based on the purported warnings.

[6] We find no relevance on the grounds tendered by the
Government, admissions against interest and warnings. Whether
there was relevance in any part of Schiff's statements should
have been determined by the judge and explained to the jury.
Relevance is for the judge, not the jury. IX Wigmore on
Evidence § 2550 (3d ed.). ‘Evidence which is not relevant is not
admissible.”” Fed.R.Evid. 402.

Assuming however that some slight relevance can be found in
some of Schiff's statements, we would not necessarily reverse
because some irrelevant material was also received.

We reverse here because even if there was a minimal rele-
vance, Rule 402, the prejudice so far outweighed it as to compel
reversal. Under Rule 403, even relevant evidence “may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury... .”

[7] The balancing process required by Rule 408 is entrusted,
in the first instance, to the trial judge, see 1 Weinstein’s
Evidence § 403[02], and we have held that the trial judge’s
discretion should not be disturbed lightly. In United States v.
Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc), cert. denied,
435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978), we stated
that “the preferable rule is to uphold the trial judge's exercise of
discretion unless he acts arbitrarily or irrationally.’ 560 F.2d at
515. See also United States v. Hernandez, 588 F.2d 346 (2d Cir.
1978); United States v. Rucker, 586 F.2d 899 (2d Cir. 1978);
United States v. Lord, 565 F.2d 831 (2d Cir. 1977). In this case
we have viewed the evidence represented by the videotape with
our own eyes, and can judge the likely prejudice resulting from
it as well as the trial judge. The test for exclusion under Rule
408 is that the danger of unfair prejudice outweighs the proba-

35a

tive value of the evidence, and that test is clearly met in this
case.

[8] The strident tone of the broadcast as enunciated by
Snyder and the “tax expert’’ emphasized that appellant Schiff
could not possibly believe his own arguments, the very issue left
for the jury. Cf. Apicella v. McNeil Laboratories, 66 F.R.D. 78,
86 (E.D. N.Y.1975) (emphasizing potential unfair prejudice in
admitting magazine article which dealt precisely with question
that would be before the jury). These talk show adversaries
predicted with assurance that on the facts known to them (the
filing of “‘returns’’ which were not returns) appellant deserved to
be convicted and, indeed, would certainly be convicted by any
jury.

Toward the beginning of the broadcast, for example, Snyder
stated to Schiff, ““You know, you're going to wind up in
Leavenworth one day, and you're going to wonder what the hell
hit you’; and “We're here—you are here advising people to
break the law,” to which Schnake added, “I’m convinced he is.””
Of similar import is the following passage later in the show:

Snyder: You're going to jail—do you know that?
Schiff: Here’s what—here’s what it's—no I'm not.
Snyder: You are going to jail.

Schiff: I'm not going. I'm not going. This is what—it is
what—listen to what the Supreme Court—

Snyder: Do you think he’s going to jail?

Schnake: Yes—I think he is asking to go to jail and I think
he’s going to make it."!

When Schiff offered the argument that United States notes have
not been “money” since the gold backing was abandoned,

'' The patent outshouting of Schiff, not giving him a chance to finish a
sentence, was typical of much of the tape. Compare United States v. Allison,
474 F.2d 286, 287 (5th Cir. 1973), cert. denied, 419 U.S. 851, 95 S.Ct. 91, 42
L. Ed.2d 82 (1974), where the defendant “‘[i}n rapid-fire fashion . . . was several
times asked complex, multifaceted questions ... but was not given time to
answer.

36a

Schnake stated that “[mJen have gone to jail for espousing’ that
view.

Appellant was accused of a separate crime of practicing law
without a license and, by clear implication, of obstructing the
IRS in its collection of the revenue by his lectures to the
taxpaying public.'* Schiff was charged with neither of such
offenses in the case on trial, and was thus impeached by the
evidence of other offenses before he even took the stand.
Schnake also was permitted to give the impression that when a
person fails to file a return for three consecutive years, his
willfulness is proved.

Thus, in addition to testifying with regard to Schiff's ultimate
guilt, Schnake specifically addressed his comments to Schiff's
good faith—a key issue at the trial. He offered his comments as
an experienced lawyer who had both defended and prosecuted
tax cases:

Schnake: I’ve prosecuted tax cases, and I’ve defended people
in Mr. Schiff's position.

Now here’s the procedure. In a failure-to-file case—and the
return that he filed, if he has filed these empty returns with
the Fifth Amendment stuff on it, have been held time and
again to be no return at all. If he’s done that since 1974—so
that’s 1974, '75 and '76—that is the magic three years that
we always waited for on a man who was determined not to
file. Give him three years, because then your proof of
willfulness is all neat!'v laid out for you.'*

'2 Towards the end of the show, both Schnake and Snyder expressed concern
that Schiff would lead others to violate the law:

Schnake: It is clear [Schiff] is advising people to violate the law in a most

disastrous area. . .

Snyder: I don’t want people watching the show [word unclear] to go to

jail—simply do not file because they see you on television saying see—he

says I don’t have to—I'm not going to.

Schnake: Yes—okay—and this man is practicing law without a license.

13 In Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 256, 96
L.Ed. 288 (1952), the Supreme Court warned that a presumption permitting
the jury to “assume intent from an isolated fact ... would conflict with the
overriding presumption of innocence.” The Court noted that “|s}uch incrimi-
nating presumptions are not to be improvised by the judiciary.’’ Surely they
should not be improvised by Schnake.

37a

Schnake further characterized Schiff s Fifth Amendment argu-
ments as ““word games” and stated that “the playing of word
games is good evidence of lack of good faith. That’s a principle
in civil and criminal cases.”""* He was also permitted to state
from his own experience that once a taxpayer's conduct has been
evaluated through the administrative process and a criminal
information filed against him, he is so obviously guilty that juries
always convict.

Schnake noted:
Juries bring in convictions on these statutes time
and again—

Since 1961, I would say [I defended] 15 [tax] cases
for sure. And they ranged all the way from failure to
file to tax evasion cases.

Every—every one of these cases was either a convic-
tion or a negotiated plea.... The cases, when they
arrive in the hands of the U.S. Attorney are well-
documented. And that’s what vou can do, except in
the rare case.

This lesson from experience, a clearly excludable point, went a
long way to destroying the presumption of innocence.

The additional vice was that when the videotape was shown
to the jury the talk show people were, in effect, testifying as
experts on the law of the forum. Such “expert” testimony is not
admissible. Marx ¢> Co., Inc. v. Diners Club, Inc., 550 F.2d 505,
509-510 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54
L.Ed.2d 134 (1977); Loeb v. Hammond, 407 F.2d 779 (7th Cir.
1968). As we said in Diners Club, ‘‘It is not for witnesses to
instruct the jury as to applicable principles of law, but for the
judge.’’ As Professor McCormick notes, such testimony
“amounts to no more than an expression of the [witness's]

4 The prosecutor may have compounded the prejudice inherent in Schnake's
statement of this “principle” when he echoed Schnake’s language by asking,
“Mr. Schiff, aren't you playing with words again?”

38a

general belief as to how the case should be decided.” Mc-
Cormick on Evidence § 12 at 27.

The videotape is further replete with prejudicial statements.
Schnake several times referred to Schiff s arguments as “‘frivo-
lous’’ and stated that Schiff is “trying to be very clever” and is
“not up front.”

This pre-judgment of the defendant's guilt, accompanied by
fervid commentary that conveyed an air of incontestable truth,
was presented to the jury before the defendant could testify on
his own behalf. By the time he took the stand his credibility nad
been placed on the scale in as derogatory a fashion as is
conceivable. The jury saw the defendant's views mocked and
discredited as incredible before he could speak for himself. See
United States v. Check, 582 F.2d 668, 684 (2d Cir. 1978).'5

If we ask ourselves whether a judge would have allowed their
live “testimony” if Snyder and Schnake had been called as
witnesses, the answer is obvious. The law of evidence, no matter
how liberally construed, allows no such impermissible tactic in a
case with a single issue of intent.

The only justification offered by the Government for this
unorthodox approach to the law of evidence is that a cautionary
instruction is sufficiently curative even in so prejudicial a situa-
tion.

We do not doubt that in most cases a jury is capable of
abiding by the court's limiting instructions. But to regard
“cautionary instructions as talismans for the solution of any
possible prejudice problem” is tantamount to “effecting a repeal
of the prejudice rule, which by its terms concedes the possibility
that the negative aspects of some evidence may simply be
unmanageable for the factfinder regardless of instructions.”
Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So.
Cal.L.Rev. 220, 248-50 (1976). As Bruton v. United States
recognized, cautionary instructions are not always the answer.
391 U.S. 128, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See

'S This is not, of course, to suggest that our result would be any different if
the tape had been offered into evidence at a different time.

39a

also United States v. Check, supra, 582 F.2d at 679. We do not
believe that they were the answer here.

The content, timing and form of the evidence in question
combined to create a prejudicial impact that far outweighed any
conceivable probative value of the tape. We must conclude,
therefore, that admission of the tape so prejudiced the defen-
dant’s case that a new trial is required. '®

The Evidentiary Hearing

We hold that it was not error for the trial court to refuse a
pretrial evidentiary hearing on the question of Schiff's assertion
of his Fifth Amendment privilege. See United States v. Jordan,
supra, 508 F.2d at 752.

[9, 10] While the question of constitutional privilege is one
for the judge, Schiff does not advance any theory for the validity
of his claim. On appeal, the appellant emphasizes that a person
filling out a tax form is a “witness” for purposes of the Fifth
Amendment. Clearly, this is the rule. See Garner v. United
States, 424 U.S. 648, 656, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976);
United States v. Sullivan, supra. But the Fifth Amendment
privilege does not immunize all witnesses from testifying. Only
those who assert as to each particular question that the answer
to that question would tend to incriminate them are protected.
As the Court observed in Albertson vs. Subversive Activities
Control Board. 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165
(1965), the questions in the income tax return are neutral on
their face and directed to the public at large rather than to a
“selective group” inherently suspect of criminal activities, cf.
Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19
L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88
S.Ct. 709, 19 L.Ed.2d 906 (1968) (occupational and excise tax on
gambling). Hence privilege may not be claimed against all
disclosure on an income tax return.

'6 In a subsequent trial, we do not preclude the cross-examination of Schiff,
if he should take the stand, on statements he made on the talk show provided
that improper and prejudicial statements made by Snyder and Schnake are not
incorporated.

40a
‘

[11] While the judge’s charge to the jury on the Fifth
Amendment issue is somewhat unclear, a fair reading suggests
that the judge did instruct, as a matter of law, that Schiff on his
returns did not assert a proper claim of Fifth Amendment
privilege.'? The court specifically stated, ““The law applicable to
this case is that a taxpayer can comply with the tax laws and
exercise his Fifth Amendment rights by listing the amount, not
the source, of his income from illegal sources. . . ."" That charge
was correct.

Schiff did not list his income, nor is there any suggestion that
an “illegal source” of income is involved. In fact, Schiff testified
at trial that to his knowledge he had done nothing illegal during
the years in question. Nor does appellant's brief suggest that
there is any evidence outside the record that would have
supported Schiff's exercise of a Fifth Amendment privilege if an
evidentiary hearing had been held.

Finally, we note that in Garner v. United States, supra, the
Supreme Court rejected an argument that a judicial hearing on
a claim of privilege must precede a prosecution under § 7203.
424 U.S. at 664, 96 S.Ct. 1178.

The judgment of conviction is reversed and the cause is
remanded for a new trial in accordance with this opinion.

'7 In response to the defendant's motion for an evidentiary hearing, the trial
judge agreed that the question of constitutional privilege was one he would
have to decide. However, he determined that a pre-trial hearing was not
required, and suggested that there would “in effect be an evidentiary hearing
to the Court which will take place contemporaneously with the trial.”’

4la

N.B. Since this statement does not constitute a formal opinion of
this court and is not uniformly available to all parties, it shall not
be reported, cited or otherwise used in unrelated cases before
this or any other court.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse in the City
of New York, on the twenty-eighth day of January of one
thousand nine hundred and eighty-one.

HON. J. EDWARD LUMBARD
HON. ELLSWORTH VAN GRAAFEILAND 80-1297
HON. AMALYA L. KEARSE

Circuit Judges,

Unitep STATES OF AMERICA,
Plaintiff-Appellee,
vs. 80-1297
Inwin A. ScuirFF,
Defendant-Appellant.

Appeal from the United States District Court for the District
of Connecticut

This cause came on to be heard on the transcript of record
from the United States District Court for the District of
Connecticut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby or-
dered, adjudged, and decreed that the judgment of said District
Court be and it hereby is affirmed in accordance with the Court's
oral opinion in open court.

A. DANIEL FUSARO
Clerk

By: Arthur Heller
Deputy Clerk

42a

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United States Court of Appeals in and
for the Second Circuit, held at the United States Court House,
in the City of New York, on the 21st day April, of one thousand
nine hundred and eighty-one.

Unrtep STATES OF AMERICA,
Plaintiff-Appellee,

vs. No. 80-1297

Inwin A. SCHIFF,
Defendant-Appellant.

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the defendant-appellant, Irwin A. Schiff,

Upon consideration by the panel that heard the
appeal, it is Ordered that said petition for rehearing is
DENIED.

It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
service and to any other judge on the panel that heard the
appeal and that no such judge has requested that a vote be taken
thereon.

A. Daniel Fusaro,
Clerk

43a

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA
vs. Criminal No. B-78-8
Inwin A. SCHIFF

DEFENDANT'S PROPOSED JURY INSTRUCTIONS
DEFENDANT'S REQUESTED INSTRUCTION #11

Mr. Schiff has presented character evidence of good reputa-
tion for truth and veracity, honesty and integrity, and as being a
law abiding citizen. The jury should consider such evidence
along with all the other evidence in the case. Such evidence of a
defendant's good character, which is inconsistent with those
traits of character ordinarily involved in the commission of the
crime charged, may itself give rise to a reasonable doubt in your
mind, since the jury may believe it unlikely that a man with
such a good character would commit the offense charged. 1
Devitt and Blackmar, Federal Jury Practice and Instructions,
Section 15.25.

44a

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA
Criminal No. B-78-8
June 13, 1980

vs.

Inwin A. SCHIFF

*

MOTION FOR NEW TRIAL

30. That the Court erred in its failure to instruct the jury that
defendant's character evidence, which is inconsistent with those
traits of character ordinarily involved in the commission of the
crime charged, may itself give rise to a reasonable doubt in the
jury's mind as to the guilt of the defendant, and that such error
was prejudicial in that the Court's instruction as to character
evidence was not sufficiently explanatory of the effect character
evidence has on the Government's burden of proof.

UNITED STATES v. KABOT
Cite as 295 F.2d 848 (1961)

[855n1]

1. “Now, there has been testimony here to the previous good
character of the defendant. You should consider such evidence
of character together with all the other facts and all the other
evidence in the case in determining the guilt or innocence of the
defendant. Evidence of good character may in itself create a
reasonable doubt where without such evidence no reasonable
doubt would have existed. But if on all the evidence you are
satisfied beyond a reasonable doubt that the defendant is guilty,
a showing that he had previously enjoyed a reputation of good
character, does not justify or excuse the offense and you should
not acquit a defendant merely because you believe he is a person
of good repute. In may be that those with whom he had come
into contact with previously have been misled and he did not
reveal to them his true character.”

UNITED STATES v. CROSBY
Cite as 294 F.2d 928 (1961)

[947n28]

28. “There has been testimony as to the previous good
character of the defendant Mittelman. You should consider such
evidence of good character, together with all the other facts and
all the other evidence in determining his guilt or innocence.
Evidence of good character may, in itself, create a reasonable
doubt where, without such evidence, no reasonable doubt would
exist.

“But if from all the evidence you are satisfied beyond a
reasonable doubt that Mittelman is guilty, a showing that he
previously enjoyed a reputation of good character does not
justify or excuse the offense, and you should not acquit him
merely because you believe that he has been a person of good
repute.

“It may be that those with whom he had come in contact
previously have been misled, or that he did not reveal to them
his real character or acts.

“The testimony of a character witness is not to be regarded by
you as expressing the witness’ personal opinion of Mittelman’s
character, nor is it to be taken by you as the witness’ opinion as
to his guilt or innocence.

“The guilt or innocence of Mittelman is for you, and you
alone, to determine.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2322%3A1. Public record. Not legal advice.