Petition — Attick v. United States

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ALE) STEVAS,

No.: ——

IN THE

Supreme Court of the United States

October Term, 1981

NICHOLAS A. ATTICK,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

MICHAEL ROSEN

Attorney for Petitioner

39 East 68th Street

New York, New York 10021

(212) 472-1400

Roy M. Cohn

Filip L. Tiffenberg

Saxe, Bacon & Bolan, P.C.

Of Counsel

i

Questions Presented

1. Whether a person can be held to be a shareholder

under Rhode Island law, for purposes of a criminal

false statement statute, where he is beyond the defini-

tion of the only Rhode Island statute defining a share-

holder.

2. Whether a person can be convicted of making

a false statement where he claimed he was not a share-

holder; that claim may be true; and the Court of Appeals

affirmed on the basis of a legal theory never relied

upon by the government or the trial court, under which

theory apellant’s claim may be construed as false.

3. Whether a conviction for making a false state-

ment can stand, where the effect of the trial court’s

instructions was to decide for the jury the question of

whether the defendant believed the statement to be

false.

4. Whether a sentence based upon erroneous and

mischaracterized information should be vacated

and remanded for resentencing.

ii

Table of Contents

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Constitutional and Statutory Provisions Involved

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Reasons for Granting the Writ .................

I -- The Reasoning of the Court of Appeals Holds

a Statement to Be False Which Is Literally

True Under the Only Rhode Island Statute

Defining a Shareholder: This Violates This

Court’s Holding in Palmer v. City of Euclid ..

II -- The Reasoning of the Court of Appeals

Raises Questions of Importance in the Admin-

istration of All of the Criminal False Statement

and Perjury Statutes As Defined in Bronston v.

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III -- The Holding by the Court of Appeals Denied

Petitioner His Constitutional Right to Have

the Jury Determine His Intent ...............

IV -- The Court of Appeals Failed to Address

Petitioner’s Contention That His Sentence

Was Based Upon Erroneous Information and

Should Have Been Vacated in Light of Recent

Second Circuit Decisions .....................

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Appendix A - Opinion of United States Court

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Appendix B Appellant’s Petition for Rehearing

Appendix C- Appellant’s Motion for Permission

to File an Amendment to His Petition for

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Appendix D -- Constitutional Provisions Involved

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Appendix E- Notice of Appeal to the Supreme

Court of the United States

iv

Table of Authorities

Cases:

Beacon Theatres v. Westover, 359 U.S. 500 (1959) 15

Bronston v. United States, 409 U.S. 352 (1973).. 11, 16

Dimick v. Schiedt, 293 U.S. 474 (1934) .......... 15

Henderson v. Kibbe, 431 U.S. 145 (1977)....... 9, 12, 14

Palmer v. City of Euclid, 402 U.S. 544 (1971).... 10

Sandstrom v. Montana, 442 U.S. 510 (1979)..... 14

Sell v. United States, 336 F.2d 467 (10th Cir. 1964) 6

United States v. Anderson, 579 F.2d 455 (8th Cir.

, RbOsEECieeees 11

United States v. Diogo, 320 F.2d 898 (2nd Cir

ee p ].. ̃ ĩͤ Po ee 13

United States v. Harris, 347 U.S. 612 (1954 10

United States v. Malcom, 432 F.2d 809 (2nd Cir.

T 15

United States v. Moore, 571 F.2d 76 (2nd Cir.

7% ⅛˙!1!!. 9

United States v. Robin, 545 F.2d 775 (2nd Cir.

PP 15, 16

United States v. Singleton, 532 F.2d 199 (2nd Cir.

VTV 9

United States v. Stein, 544 F.2d 96 (2nd Cir. 1976) 15

United States v. Vesaas, 586 F.2d 101 (8th Cir.

ge Ok Nis S52 lies a SA 2 11

United States Constitution:

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Statutes:

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ABA-ALI Model Business Corporation Act § 2(f) 5

General Laws of Rhode Island § 7-1.1-2(f) ...... 2, 5, 10

No.:

IN THE

Supreme Court of the United States

October Term, 1981

NICHOLAS A. ATTICK,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner Nicholas A. Attick respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the First Circuit entered in this proceeding on May 22,

1981 and from the order of that Court denying the

petition for rehearing and the motion for permission

to file an amendment to the petition for rehearing.

Opinion Below

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

appears as Appendix A hereto.

2

Jurisdiction

The judgment of the Court of Appeals for the

First Circuit was entered on May 22, 1981; and the

order, denying both the petition for rehearing and

the motion for permission to file an amendment to the

petition for rehearing, on June 17. This petition was

filed within 60 days of both of these dates. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1). Notice

of Appeal appears as Appendix E hereto.

Constitutional and Statutory Provisions Involved

This case involves the Sixth Amendment to the

United States Constitution, one of the federal criminal

false statement statutes, 18 U.S.C. § 1014, and the

definition of a shareholder under the law of Rhode

Island, General Laws of Rhode Island § 7-1.1-2(f),

each of which is set out, verbatim, in Appendix D

hereto.

Statement of the Case

This case arises out of a revolving credit loan

entered into on March 23, 1979, between J. Daren &

Sons, Inc., and the First Bank of Connecticut.“ The

loan agreement contained a provision that the borrower,

J. Daren, was not permitted to “ ... make any distribu-

tion of cash ... to holders of shares of its capital stock ..“

If such a distribution occurred it would constitute an

“Event of Default.” To obtain an advance from the

bank, a “Request for Advance” would be filled out;

it contained a recital that no “Event of Default” has

occurred.

Appendix filed with the Court of Appeals (hereinafter “App.”)

4-12.

“App. 23.

‘App. 13.

3

On the same date the loan agreement was made,

March 23, 1979, it was assigned to the Rhode Island

Hospital Trust National Bank of Providence, Rhode

Island.“ The Hospital Trust’s deposits were insured

by the Federal Deposit Insurance Corporation.

The loan agreement also provided that “[t]his

agreement and the note shall be construed in accordance

with and governed by the laws of the State of Rhode

Island.“

On April 10, May 16 and 24, June 12 and 21, and

July 9, 1979, requests for advances were made. Prior

to these dates, J. Daren & Sons, Inc., had distributed

cash to the defendant, Nicholas A. Attick.

A grand jury sitting in Rhode Island returned

an indictment which charged that since ... Nicholas A.

Attick was ... principle shareholder of J. Daren & Sons,

Inc.,“s each of the requests for advances contained a

false statement. Nicholas A. Attick was charged with

having violated Title 18 U.S.C. § 1014 and § 2(b).’

At the trial, the evidence showed that “[t]he stock

of the J. Daren Corporation is owned by the Olympac

Corporation,“ and that Nicholas Attick owned “the

stock of Olympac Corporation.“ Moreover, prior to

App. 18.

App. 17.

„App. 4.

718 U.S.C. § 1014 provides in relevant part that “[wJhoever

knowingly makes any false statement... for the purpose of influencing

in any way the action of ... any bank the deposits of which are insured

by the Federal Deposit Insurance Corporation ... upon any appli-

cation, advance ... shall be fined not more than $5,000.00 or im-

prisoned not more than two years, or both.

18 U.S.C. § Ab) states that “{wJhoever willfully causes an act

to be done which if directly performed by him or another would be

an offense against the United States is punishable as a principal.”

App. 23.

„App. 23.

A

entering into the loan agreement, the bank was on

notice that this was the relationship between Mr.

Attick, Olympac and Daren,'’ and the bank was quite

familiar with treating individuals and corporations

as “separate and distinct.“ !“

In regard to the evidence at trial that became

important in light of the reasoning of the First Circuit,

a vice-president of the bank, Peter Paquin, testified

that he had become aware that Nicholas Attick “was

president and sole stockholder of“ Daren.'* On cross-

examination, Mr. Paquin began by stating that appel-

lant had told the bank officials that “he was [Daren’s]

sole stockholder.“ “ However, defense counsel went on

to ask Paquin whether a document, presented to the

bank by Nicholas Attick prior to the loan agreements

being signed, stated that the stock in J. Daren Company

was owned by a holding company,” i.e., Olympac, and

Paquin acknowledged that was correct.'‘ Then Paquin

is asked whether he was on notice that Attick “did not

personally own the stock.”'® When he hedges, he is

then asked whether the bank distinguishes, when they

make a loan, between a corporation and an individual,

and he finally acknowledges that they are separate

and distinct.”

One final prssage is important in terms of the

jury instruction which is at the heart of this petition.

Appellant took the stand, and, among other matters,

testified to the relationship between himself, Olympac

and Daren, and to what he believed to be the legal sig-

nificance of that relationship:

App. 19.

"App. 20.

Transcript of trial (hereinafter “Tr.” 7.

Tr. 81; the Appendix to this Petition (hereinafter A-“) 4.

Tr. 81.

Tr. 81.

Tr. 812.

5

“Q. Mr. Attick, do you own any stock in the

J. Daren Corporation, sir?

A. No, I do not own any stock in J. Daren Corpo-

ration.

Q. Have you ever owned any stock in the J. Daren

Corporation?

A. No, I have never owned any stock in J. Daren

Corporation.

Q. Do you know of your own knowledge who

owns the stock in the J. Daren Corporation?

A. The stock of the J. Daren Corporation is

owned by the Olympac Corporation of New

York.

Q. Mr. Attick, who owns the stock in the Olympac

Corporation?

A. I own the stock of Olympac Corporation.“ “

The Rhode Island Business Corporation Act defines

a shareholder as “one who is a holder of record of

shares in a corporation.” Gen. Laws of Rhode Island

§ 7-1.1-2(f)'* [emphasis added].

At the conclusion of the case, two legal arguments

were put forth simultaneously by the government

and the defense; the government requested that the

judge instruct the jury that if they found Nicholas

Attick was the sole stockholder in Olympac (which

he had stated when he took the stand), then he was

therefore “a shareholder of J. Daren and Sons”;'’

at the same time, the defense moved for acquittal

because the government had failed to prove that Attick

was a shareholder of Daren.*’ The only authority

which the government presented to the Court was

Tr. 631-632.

Nor is the Rhode Island statute requiring ownership of record

an anomaly. The language is taken directly from the ABA-ALI Model

Business Corporation Act § 2(f).

App. 24.

“App. 26.

6

Sell v. United States, 336 F.2d 467 (10th Cir. 1964), a

case which did not purport to define a shareholder

under Rhode Island law, but only held that where a

person denies owning grain, and conceals that he

does in a corporate name, there is enough to confirm

a false statement conviction. Sell, unlike Attick, did

not fully reveal prior to the critical events his ownership

in the corporate form.

The District Court accepted that, under the law,

Olympac and not Attick held the Daren stock, for the

judge held “that Mr. Attick does not own stock in J.

Daren in his name, the legal titleholder of that stock

is Olympac.“ ! Nonetheless, the Judge decided to give

the instruction requested by the government, on the

basis that to refuse would seem to elevate form over

substance.“ Here are the instructions on the issue

of Attick being a shareholder, and of his belief as to

his shareholder status:

“The offenses charged in each Count of the

indictment have four essential elements:

* * *

SECOND: That defendant made false

statements to the bank;

THIRD: That defendant knew the statements

were false; ....

* * *

The government is obliged to establish each

of these elements as to each Count in the indict-

ment by proof beyond a reasonable doubt.

An act is done ‘knowingly’ if done voluntarily

and intentionally, and not because of mistake

or accident or other innocent reason.

App. 28.

App. 28.

7

The purpose of adding the word ‘knowingly’

is to insure that no one will be convicted for an act

done because of mistake, or accident, or other

innocent reasons.

A statement is ‘false’ if untrue when made,

and then known to be untrue by the person making

it or causing it to be made.

The Government has charged in its indict-

ment that the defendant, Nicholas Attick, was

a shareholder of J. Daren & Sons, Inc., and as

such violated a loan agreement entered into

on March 23, 1979. Whether the defendant is

an owner of stock of J. Daren & Sons, Inc., is

an essential element of the offense charged

under the circumstances of this case. If you

find beyond a reasonable doubt that the stock

of J. Daren was owned by the Olympac Corpora-

tion and that the defendant was the sole stock-

holder of the Olympac Corporation, you may

find that the defendant was the beneficial owner

of the stock of J. Daren Company.

Unless you find beyond a reasonable doubt

that defendant was an owner of stock of J. Daren

Corporation, you must find the defendant not

guilty on each count.

You must not conclude or assume from the

mere fact that the defendant is President of

J. Daren & Sons, Inc., that he is a shareholder

in said corporation. The two are separate and

distinct. The Government has the burden, beyond

a reasonable doubt, to prove to you that the

defendant is a shareholder in the J. Daren & Sons,

Inc. Company.“ “

Tr. 675-6,

8

A juror, hearing this instruction, would under-

stand that the only issue to decide in regard to share-

holding was the chain of ownership, and that the

chain had to be established beyond a reasonable doubt.

Since appellant himself had testified to that chain,

the judge’s instruction commanded the jurors to find

that this “essential element of the offense charged

under the circumstances of this case” had been admitted.

More importantly, the instruction told the jurors that,

in regard to the stockholder element of the indictment,

Nicholas Attick could only be acquitted if they decided

that there was not such a chain of ownership, the

critical issue of what Attick believed his shareholder

status to be was taken away from the jury.

The underlined portion of the instructions was

repeatedly objected to by defense counsel.*‘ A copy of

the entire charge was sent to the jury room.*°

Appellant was convicted on five counts of sub-

mitting false statements in violation of 18 U.S.C. §§ 1014

and 2(b). He was given a maximum sentence on each

count totalling four years imprisonment, plus a com-

mitted fine of $25,000.00. (Two years imprisonment

on each of the first two counts to be served consecutively

and, on the balance, concurrent two years suspended

sentences with two years probation to begin upon

release.)

After the conviction, but prior to sentencing,

defendant moved for a judgment of acquittal or, in

the alternative, for a new trial.“ It was argued by

appellant that (1) under Rhode Island corporation

law he was not a shareholder, i.e., record holder of

shares of Daren, and (2) even if he were, the government

had not proved that the representations to the bank

were not intended to be literally true.“ These same

arguments were then presented to the Court of Appeals.

“App. 30-32,

App. 5,

“App. .

“App. 36-42,

9

The First Circuit rejected applying the statutory

definition found in the Rhode Island Business Corpora-

tion Act “because we believe that Rhode Island con-

tract law, not corporation law, governs the means

of the words in the agreement.“ “ The Court held that

it was for the jury to determine what the parties meant

by shareholder, and that Paquin’s testimony showed

that the parties, particularly the bank, had reason

to believe that Attick was a shareholder of Daren.““

The Court held, in the alternative, that even if

corporation law did apply, the corporate identity can

be disregarded in Rhode Island “ ‘if it is used to defend

public convenience, justify wrong, protect fraud, or

defend crime or work an injustice'.“ Again, the question

of what Attick believed his status to be would turn on

the jury’s consideration of events leading up to the

signing of the Loan Agreement.

Appellant filed a timely petition for rehearing,

arguing that the objected-to instruction on beneficial

ownership “remove[d] from the jury’s consideration

an essential element of the offense,” i.e., whether

Attick believed that he, not Olympac, was a share-

holder of Daren."' In support of this position, appellant

cited to United States v. Singleton, 532 F.2d 199, 207

(and Cir. 1976); United States b. Moore, 571 F.2d 76, 89

(2nd Cir. 1978) and this Court’s opinion in Henderson v.

Kibbe, 431 U.S. 145, 153 (1977).

Additionally, appellant moved to amend the

petition to argue that the appellant’s sentence was

based upon erroneous assumptions and misinforma-

tion.“

A- 5.

M- to A4.

WA-5,

"Petition for Rehearing, before Court of Appeals, Appendix B

attached hereto (hereinafter “B-"), p. 5.

Motion to Amend, before Court of Appeals, Appendix C attached

hereto.

10

The Court of Appeals issued an order denying

the petition for rehearing and the motion to amend;

no opinion was filed, nor were any reasons provided

for the denial in the order.

Reasons for Granting the Writ

The Reasoning of the Court of Appeals Holds a

Statement to Be False Which Is Literally True

Under the Only Rhode Island Statute Defining a

Shareholder: This Violates This Court’s Holding

in Palmer v. City of Euclid.

The only statute in Rhode Island which defines

who is a shareholder under the law of that state requires

that it be a record holder of shares. Gen. Laws of Rhode

Island § 7-1.1-2(f). Nicholas Attick testified that he

did not believe himself to be a shareholder of Daren

because Daren stock was owned by Olympac."' A

layman, even an attorney, reading the Rhode Island

statute in conjunction with the Loan Agreement could

believe Nicholas Attick was not prohibited from receiv-

ing cash disbursements from J. Daren. A statute is

“unconditionally vague as applied to a particular

person's conduct if it fails ‘to give a person of ordinary

intelligence fair notice that his contemplated conduct

is forbidden „ Palmer b. City of Euclid, 402 U.S.

544, 545 (1971) quoting from United States b. Harris,

347 U.S. 612, 617 (4954).

r. 631-682,

Brief for appellant before Court of Appeals, p. .

11

II.

The Reasoning of the Court of Appeals Raises

Questions of Importance in the Administration

of All of the Criminal False Statement and Perjury

Statutes As Defined by Bronston v. United States

This conviction was pursuant to 18 U.S.C. § 1014,

but the underlying analysis affects a thread running

throughout all of the false statement and perjury

statutes. The Court of Appeals reasoning strips away

the defense that if the statement has a reasonable

construction under which it is true, then even if there

are more reasonable constructions under which it is

false, he can not be convicted of making a false state-

ment or of having committed perjury. This Court

unanimously held in Bronston v. United States, 409

U.S. 352, 352-3 (1973) that a person cannot “be convicted

of perjury for an answer under oath that is literally

true but not responsive to the question asked and

arguably misleading by negative implication.” This

analysis has been applied to false statement cases

by the Court of Appeals:

“We note that the reluctance in Diogo [320

F.2d 898 (2nd. Cir., 1963)] to find a knowing false

statement where the challenged assertion may

be literally true, even if false by implication

or omission, is consistent with the Supreme

Court’s recent construction of the federal perjury

statute, 18 U.S.C. § 1621, in Bronston v. United

States, 409 U.S. 352, 360, 93 S.Ct. 595, 34 L.Ed.2d

568 (1973) and cases cited therein.” United States

bv. Lozano, 511 F.2d 1, 5 (7th Cir.), cert. denied,

423 U.S. 850 (1975) [emphasis added].

This construction of false statement and perjury

statutes has been, prior to this decision, consistently

employed by the Courts of Appeals. See, e.g., United

States v. Vesaas, 586 F.2d 101, 104 (8th Cir. 1978);

United States v. Anderson, 579 F.2d 455, 460 (8th

Cir. 1963). Under the mode of analysis employed by the

12

Court of Appeals in the present case, a conviction will

be upheld so long as the challenged assertion “may

be literally” false, thus turning the standard set forth

by this Court, and followed throughout the Circuits,

on its head.

III.

The Holding in the Court of Appeals Denied

Petitioner His Constitutional Right to Have the

Jury Determine His Intent.

The test for error in jury instruction “requires a

comparison of the instructions which were actually

given with those that should have been given.” Hender-

son v. Kibbe, 431 U.S. 145, 154 (1977). Here is the one

that should have been provided:

The Government has charged in its indict-

ment that the defendant, Nicholas Attick, was

a shareholder of J. Daren & Sons, Inc., and as

such violated a loan agreement entered into

on March 23, 1979. Whether the defendant

believed himself to be a holder of stock of J.

Daren & Sons is an essential element of the

offense charged under the circumstances of

this case.

“In deciding whether the defendant so

believed you need not take his word alone on

whether he believed himself to be a shareholder

of J. Daren; you may consider ‘the words of the

contract and the circumstances surrounding the

choice of those words, including representations

made in the course of negotiations. But in con-

sidering such evidence, you are not being asked

to decide whether the bank believed Nicholas

Attick was a holder of Daren shares; you are

not asked to decide whether the bank might

HA.

13

reasonably have believed Nicholas Attick to be

a holder of Daren shares.“ The question you

are to decide is whether Nicholas Attick believed

himself to be a holder of J. Daren shares, and

you must decide that he did so believe beyond

a reasonable doubt, in order to convict.’ ’’**

The instruction that was given began correctly;

the first sentence in the proposed charge is identical

to the first sentence in the actual charge. The second

sentence in the proposed charge is similar. There are

two important differences: (1) where the proposed charge

stays with the language of the contract and indictment,

i. e., holder of shares, the actual charge introduced the

concept of ownership of stock; (2) more importantly,

the proposed charge focused upon Attick’s belief in

whether he held Daren stock, and the actual charge

focuses upon “[w]hether the defendant is an owner

of stock of J. Daren.” Since the jury could determine

that the bank not only believed Attick to be a Daren

shareholder, but that such an “interpretation ... might

reasonably have [been] made,” Diogo, supra at 906,

they were misdirected as to how to consider the evidence.

However, all of this pales compared to the next

sentence. Instead of commanding the jury to consider

what Attick believed as revealed in his statements

in the critical period leading up to the signing of the

contract, the jury is instead told that if they found

that J. Daren stock was owned by Olympac, and defend-

ant was the sole stockholder of Olympac, “you may

find that the defendant was the beneficial owner of

the stock of J. Daren Company.” This told the jury

to ignore any evidence regarding conversations prior

to the loan agreement being signed; ignore Attick’s

“United States v. Diogo, 320 F.2d 898, 905-6 (2nd Cir., 1963).

Diogo. supra, at 905-6.

‘Petition for Rehearing Before the Court of Appeals, B-6 to B-7.

14

repeated statements that he owned Daren through a

holding company, and what that statement may have

meant to Attick. In fact, the jury is directed to ignore

all of the evidence that the Court of Appeals relied

upon to sustain the correctness of the instruction under

Rhode Island law. The objected-to instruction orders

the jury to only consider two pieces of evidence, both

conceded by the defendant on the stand. Contrary to

Henderson v. Kibbe, 431 U.S. 145 (1977), the record

in the present case requires a conclusion that the jury

never considered whether Attick believed himself to be

a J. Daren shareholder; that the jury never considered

the record testimony cited to by the Court of Appeals;

and that the instruction told the jury that since the

two matters they were to review under the reasonable

doubt standard were both testified to by the defendant,

the jury was, in effect, directed to find Nicholas Attick

a holder of J. Daren shares and thus guilty.

The analysis of “whether a defendant has been

accorded his constitutional rights depends upon the

way in which a reasonable juror could have interpreted

the instruction.” Sandstrom v. Montana, 442 U.S. 510,

514 (1979). Here a reasonable juror could have and

would have interpreted the instructions on the issue

of holding Daren stock to be contained in one clear

directive: if the Daren stock was held by Olympac,

and Olympac stock was solely held by Attick, then

the question of the Daren stock, including Attick’s

belief about it, must be resolved against Attick.

The instruction given here as to beneficial owner-

ship comes squarely within the following analysis

of this Court:

“ ‘It follows that the trial court may not

withdraw or prejudge the issue by instruction

that the law raises a presumption of intent

from an act ... A conclusive presumption which

testimony could not overthrow would effectively

eliminate intent as an ingredient of the offense.

15

A presumption which would permit but not

require the jury to presume intent from an isolated

fact would prejudge a conclusion which the

jury should reach of its own volition.” Sandstrom,

supra, 442. U.S. at 522, quoting from Morissette

v. United States, 342 U.S. 246, at 274-275

[emphasis in original].

This Court has repeatedly exercised its direction

in favor of granting certiorari in civil cases to protect

“the jury function in passing on disputed questions

of fact and in drawing inferences from proven facts.”

Wilkerson v. McCarthy, 336 U.S. 53, 70-71 (1949)

(Douglas, J., concurring) [emphasis added]. See also

e.g., Beacon Theatres v. Westover, 359 U.S. 500, 501

(1959); Dimick v. Schiedt, 293 U.S. 474, 486 (1934).

Certiorari should be granted even more readily when

the jury function at stake is granted under the Sixth

Amendment to the Constitution.

IV.

The Court of Appeals Failed to Address Peti-

tioner’s Contention That His Sentence Was

Based Upon Erroneous Information and Should

Have Been Vacated in Light of Recent Second

Circuit Decisions.

Recent decisions in the United States Court of

Appeals for the Second Circuit have permitted that

Court to review and vacate criminal sentences when

they may have been based upon erroneous assumptions

or misinformation. U.S. v. Malcom, 432 F.2d 809 (2nd Cir.

1970); U.S. v. Stein, 544 F.2d 96 (2nd Cir. 1976); and

U.S. v. Robin, 545 F.2d 775 (2nd Cir. 1976). The First

Circuit has not followed this trend and refused to permit

Petitioner to present this argument as an amendment to

his Petition for Rehearing.

Though the Court of Appeals found that the con-

viction was based upon the interpretation of a contract

provision, the District Court characterizes Petitioner's

16

activities as analogous to robbing a bank with a sawed-

off shotgun.*® Such a crime is far removed from the

“white collar crime” of which Petitioner was convicted.

This misapprehension becomes even more apparent

in light of the Bronston decision which frowned upon

prosecution when the defendant has told the literal

truth. Supra, at 409 U.S. 362.

In view of the nature of Petitioner’s crime his

punishment of concurrent sentences is especially

harsh. Though he was convicted on five counts his

acts were so similar in nature so as to be treated as

one. His crime, that of misunderstanding what appeared

to be a clear contract term, only occurred once,

his actions from that time on were based upon that

one wrong and not a series of separate and distinct

criminal actions. Thus, the holding in U.S. v. Robin,

545 F.2d 775, 782 (2nd Cir. 1976) becomes relevant.

Therein the Court noted the severity of Robin’s sentence

and stated “... we are especially concerned when a

harsh sentence is imposed upon so questionable a

foundation as existed in this case.”

In light of the severity of Petitioner’s sentence

and the Court’s mischaracterization of his crime, the

Court of Appeals should have permitted review of

this issue.

Transcript of sentencing proceeding, October 29, 1980, Page 10.

17

Conclusion

For the foregoing reasons, a writ of certiorari

should issue to review the judgments and opinion of the

First Circuit.

Dated: New York, N.Y.

June 26, 1981.

Respectfully submitted,

Michael Rosen

Attorney for Petitioner

39 East 68th Street

New York, New York 10021

(212) 472-1400

Roy M. Cohn

Filip L. Tiffenberg

Saxe, Bacon & Bolan, P.C.

Of Counsel

18

Certificate of Service

New York, New York

June _, 1981

I, : hereby certify that I

have this day served three copies of the PETITION

FOR A WRIT OF CERTIORARI by mailing same,

postage prepaid, to the Solicitor General, Department

of Justice, Washington, D.C. 20530, and mailing three

copies to Assistant United States Attorney James E.

O’Neill, Office of the United States Attorney, P.O. Box

1401, Providence, Rhode Island 02901.

APPENDICES

la

Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 80-1726

UNITED STATES OF AMERICA,

Appellee,

Vv

NICHOLAS A. ATTICK,

Defendant-Appellant.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Hon. Francis J. Boyle, U.S. District Judge}

Before Coffin, Chief Judge,

Campbell and Breyer, Circuit Judges.

Marshall D. Stein, with whom Hale, Sanderson, Byrnes

& Morton was on brief, for appellant.

James E. O Neil, Assistant United States Attorney,

with whom Paul F. Murray, United States Attorney,

and Calvin B. Kurimai, Special Attorney, United States

Department of Justice, were on brief, for appellee.

May 22, 1981

Breyer, Circuit Judge. Appellant Nicholas A.

Attick was convicted of submitting false statements

to the Rhode Island Hospital Trust National Bank, a

2a

Appendix A

Opinion of United States Court of Appeals

federally insured bank, for the purpose of influencing

the bank to loan his company money in violation of

Title 18, U.S. Code, §§ 1014 and 2(b).' Attick was sen-

tenced to a total of four years imprisonment and fined

a total of $25,000.

Attick was president and owner, through a holding

company, of J. Daren and Sons Incorporated, a food

service company. On March 23, 1979, J. Daren entered

into a Revolving Credit Loan Agreement (the “agree-

ment”) with a bank in Connecticut. It was assigned

to the Hospital Trust Bank. The agreement provided

that the borrower, J. Daren, would request funds,

up to $2.5 million, from the Hospital Trust Bank, by

means of a form called a “Request for Advance“.

An officer of J. Daren was required to sign a Request

for Advance form prior to each advance of credit. It

states that J. Daren “represents and warrants that

no event has occurred and is continuing, or would

result from the proposed Advance, which constitutes

an ‘Event of Default’, as that term is defined in the

Agreement ..“ 5

Title 18, U.S. C., § 1014 states in part: “Whoever knowingly

makes any false statement or report ... for the purpose of influencing

in any way the acts of ... any bank the deposits of which are insured

by the Federal Deposit Insurance Corporation ... upon any appli-

cation, advance ... or loan, ... shall be fined not more than $5,000

or imprisoned for not more than 2 years or both.”

Title 18, U.S.C. § 2(b) states: “Whoever wilfully causes an act

to be done which if directly performed by him or another would be

an offense against the United States, is punishable as a principal.”

3a

Appendix A

Opinion of United States Court of Appeals

J. Daren agreed in the standard language contained

in the agreement, that it would not directly or indirectly

distribute cash to holders of shares of its capital stock”

unless the Hospital Trust Bank consented in writing.

Violation of that covenant constituted an “Event of

Default”.

On April 10, May 16, May 24, June 12, June 21 and

July 9, 1979, Requests for Advances of more than

$750,000 were made to the Hospital Trust Bank on

forms setting forth the above representation and war-

ranty, as provided in the agreement. It is undisputed

on this appeal that during the same period Attick

caused approximately $350,000 of J. Daren cash to be

distributed for his own personal use. At the time of

sentencing, J. Daren was in Chapter XI proceedings.

The government charged that defendant obtained

money from the bank in part by making a false state-

ment, namely, the statement made at the time he

requested advances from the bank that “no event has

occurred ... which constitutes an ‘Event of Default’

as that term is defined in the Agreement “ This

statement, in the government's view, was false because

Attick knew that an Event of Default had occurred,

namely the event consisting of J. Daren’s distribution

to Attick of cash from the corporation.

Appellant was convicted. His claim on this appeal

is one of “truth”. He correctly points out that one cannot

be convicted under 18 U.S.C. § 1014 if the statement

claimed to be false is, in fact, literally true. See United

States b. Diogo, 320 F.2d 898 (2d Cir. 196%) (construing

similar language in 18 U.S.C. § 1001). He adds that

his statement to the bank was literally true because

no Event of Default had occurred. In his view, J. Daren's

payment of the loan’s proceeds to him did not violat

the agreement because the agreement’s prohibition

of distributions of cash “to holders of shares” of J.

4a

Appendix A

Opinion of United States Court of Appeals

Daren was not violated. Appellant argues that he was

not a “holder of shares” of J. Daren because, in fact,

all J. Daren shares were owned by Olympac Company —

a holding company of which appellant is admittedly

the sole shareholder. In his view, the fact that he owns

J. Daren shares through Olympac means that the

agreement, technically speaking, was not breached,

and therefore he did not lie when he told the bank the

agreement had not been breached.

We believe, however, that there was evidence in the

record from which the jury could conclude beyond

reasonable doubt that the agreement was breached

and that the defendant knew it. The agreement specifies

that it is to be interpreted in accordance with Rhode

Island law. Under Rhode Island law governing the

interpretation of contracts, as under the common law,

the meaning of the terms in an agreement depends upon

the understanding of the parties, determined from the

words of the contract and the circumstances surrounding

the choice of those words, including representations

made in the course of the negotiations. See Hill v. M.A.

Alper & Son, Inc, 106 R. I. 38, 47, 256 A.2d 10, 15 (1969).

See also Westinghouse Broadcasting v. Dial Media,

410 A.2d 986,992 (K. I. 1980). Peter Paquin, Vice President

of Hospital Trust Bank, testified that, during the

negotiations for the loan, Attick outlined the nature

of J. Daren’s business and told Paquin that he was its

“president and sole stockholder”. He testified:

(Direct Examination)

Q. And did you become aware of his position

with the food brokerage business, sir?

A. Yes, he was president and sole stockholder

of the J. Daren and Son.” (Transcript at 7)

(Cross Examination)

Q. When did you learn, Mr. Paquin, that Mr.

Attick is the sole stockholder of J. Daren and

Company?

5a

Appendix A

Opinion of United States Court of Appeals

A. We became fully aware of that — we were

told that initially going into the thing that he

was the sole stockholder.

Q. Did you check that out?

A. No, we took his word for it. (Transcript at 80-81)

Moreover, in a report, which Attick submitted to the

Hospital Trust Bank when applying for the revolving

credit arrangement, he described his relation to . Daren

as follows:

Mr. N. A. Attick acquired by purchase, through

a wholly-owned holding company, all of the

common stock of J. Daren and Sons Company ....

Further, it is clear that the purpose of the agreement

provision at issue was to prevent those who controlled

J. Daren from milking it of cash thereby placing the

bank loan in jeopardy. Finally, it was undisputed (and

the jury was told that to convict it must find) that Attick

was the beneficial holder of J. Daren’s shares. Under

the circumstances, it is clear that the agreement was

intended to, and literally did, include the relation that

Attick held to J. Daren. The agreement was thus

breached as a matter of Rhode Island contract law

when Attick took $350,000 from the corporation for

his own use; and Attick made a false statement when

he caused false Requests for Advances to be submitted

stating that it was not.

Attick argues that the words “holder of shares”

in the agreement must be interpreted strictly and

identically with the Rhode Island Business Corporation

Act definition of “shareholder”, namely, “one who is a

holder of record of shares in a corporation”. General

Laws of Rhode Island § 7-1.102(f). (Emphasis added.)

Olympac, not Attick, he adds, was the “holder of record“.

We reject this argument because we believe that Rhode

Island contract law, not corporation law, governs the

meaning of the words in the agreement. But, even if

6a

Appendix A

Opinion of United States Court of Appeals

the Corporation Act applies, we note that in “cases

involving the relationship between shareholders and

corporation ... the corporate entity is disregarded and

will be considered as though an association of persons

if it is used to defeat public convenience, justify wrong,

protect fraud, or defend crime or work an injustice.”

Vennerbeck & Clause Co. v. Juergens Jewelry Co.,

53 R. I. 135, 139, 164 A. 509, 510-11 (1933). See United

Transit Co. v. Nunes, 99 R. I. 501, 209 A.2d 515 (1965).

Thus, we believe that the Rhode Island courts in this

instance would, as a matter of law, have pierced

Olympac’s corporate veil to find Attick the holder

of J. Daren’s shares.

Defendant also argues that, even if the transfers

of cash violated the agreement, the government failed

to show that he knew that they did. More particularly,

he claims that he may have thought that under Rhode

Island law he was home free because he was not, as a

technical matter, a record holder of shares. It was up

to the government, he adds, to show that he did not

think this; he claims that the government must show

that he did not — for this reason — lack the requisite

guilty knowledge.

This argument fails for two reasons. First, there

is more than enough evidence in the record for the jury

to conclude that Attick knew the transfers breached

the agreement. Pacquin’s testimony about what Attick

said, representations in writing to the bank, the agree-

ment’s obvious purpose (preventing the corporation’s

owners from taking cash out) all warrant a finding

that Attick knew that he had promised the bank not

to take cash out of the corporation. Second, the govern-

ment was not required to request individual instructions

which specifically negative each and every conceivable

set of facts that might mean Attick lacked the requisite

knowledge. If Attick wished to claim the existence of

7a

Appendix A

Opinion of United States Court of Appeals

an unusual set of facts that, in the circumstances,

rebuts an inference of knowledge that would otherwise

be drawn, he was obliged to argue such a theory or at

least to request an appropriate instruction. See

Mc Murray v. United States, 298 F.2d 619 (7th Cir. 1961),

cert. denied, 369 U.S. 860 (1962); United States v.

Hamilton, 420 F.2d 1096 (7th Cir. 1970). He did not do

so here. Rather, he simply rested on the claim that he

did not know what was in the agreement — a claim

that the jury rejected.

In fact, the district court instructed the jury that

to convict it must find beyond a reasonable doubt that

Attick “was an owner of stock of J. Daren Corporation”

and that it “may find ., the defendant was the beneficial

owner” of the J. Daren stock if he was “the sole stock-

holder of the Olympac Corporation”. These instructions,

though not totally clear on the issue of contract inter-

pretation, were adequate — particularly because there

was no relevant disputed issue of fact. Defendant’s

objection to these instructions rested entirely upon

his theory that, as a matter of law, he could not be con-

victed because he held J. Daren’s shares through

Olympac, rather than holding them directly. That

theory was erroneous.

The judgment of the district court is therefore

Affirmed.

8a

Appendix B

Appellant’s Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 80-1726

UNITED STATES OF AMERICA,

Appellee,

V

NICHOLAS A. ATTICK,

Defendant, Appellant.

APPELLANT’S PETITION FOR REHEARING

Now comes the Appellant, Nicholas A. Attick, and

pursuant to F.R.A.P. 40, petitions this court for a

rehearing of his appeal.

INTRODUCTORY STATEMENT

Pursuant to Ist Cir. R. 15, Appellant represents

that the legal issue and factual matter presented in

this petition could not have been presented before.

The legal issue, the correctness of the trial court’s

instructions as construed in light of Rhode Island

law on contracts, was never argued by the government

to either the District Court or this Court, and thus could

not have been considered or briefed previously. In fact,

the government at trial never presented any Rhode

Island cases or statutes to the trial judge when requesting

that he alter his instructions in regard to the essential

element of Attick’s being a shareholder. The argument

that Rhode Island contract law, and not corporation

law, determines the correctness of the trial judge’s

instructions was raised sua sponte by this Appeals

Court during oral argument. Therefore, Appellant

has not had a prior opportunity to address this legal

argument.

9a

Appendix B

Appellant’s Petition for Rehearing

Moreover, the portion of testimony relied upon by

this Court has never been addressed, because it only

became relevant when this Court held that Rhode

Island contract law, and not corporation law, determined

the outcome of this appeal.

Framing this introductory statement in the nega-

tive, this petition, without waiving the right to so argue

in another context, e.g., petition for certiorari, assumes

arguendo this Court’s principal twin holdings “that

one cannot be convicted under 18 U.S.C. § 1014 if the

statement claimed to be false is in fact, literally true“

and “that Rhode Island contract law, not corporation

law, governs the meaning of the words in the agree-

ment.“? Appellant then argues for the first time, since

the issue could not have been addressed earlier, from

the position that Rhode Island contract law governs,

and the outcome of this appeal therefore turns on the

jury not having been directed that it must decide whether

“from the words of the contract and the circumstances

surrounding the choice of these words, including repre-

sentations made in the course of the negotiations“

whether or not the defendant believed himself to be a

holder of shares in J. Daren. In this setting, the contested

instructions on beneficial ownership had the effect of

removing an essential element of the offense from the

jury’s consideration. United States v. Singleton, 532

F.2d 199, 206-207 (2nd Cir. 1976). Appellant argues

that because the instruction had the effect of deciding

a matter which had to be decided by the jury, it satisfies

the direct appeal standard (as opposed to habeas corpus

United States v. Attick, — F.2d — — (lst Cir., 5/22/81)

(No. 80-1726), slip opinion at 3.

2United States v. Attick, __ F.2d —— , —_, (lst Cir., 5/22/81)

(No. 80-1726), slip opinion at 5.

‘United States v. Attick, — F.2d — , — (Ist Cir., 5/22/81)

(No. 80-1726), slip opinion at 3 (citations omitted).

10a

Appendix B

Appellant’s Petition for Rehearing

standards) set forth in Henderson bv. Kibbe, 431 U.S.

145 (1977). See United States v. Moore, 571 F.2d 76,

88-89 (2nd Cir. 1978). Given that the instructions at

trial, were never indicated, by court or prosecutor, as

being grounded on a contract theory, there would be

no reason for defense counsel to foretell that the instruc-

tion would be upheld on such a basis, and, therefore,

trial counsel should not be faulted for not objecting

to the instruction, and its effect on the jury’s consider-

ation of the evidence, from this perspective.

Moreover, since the contested instruction is now

upheld as correct as a matter of Rhode Island contract

law, and a “literal truth” defense is available, the

charge is fatally flawed cause it never directed the

jury to consider the parties’ understanding leading

up to the signing of the contract, and to further con-

sider such an understanding, not merely from the

perspective of contract law, i.e., civil burden of proof,

but from the context of “literal truth”, i.e., that the

jury must look to the meaning intended by the Appel-

lants, rather than to the interpretation of the statements

which the .... [bank official] did in fact make, or even

to the interpretations which the .... [official] might

reasonably have made.” United States v. Diogo, 320

F.2d 898, 905-906 (2nd Cir., 1963) (emphasis in original,

citations omitted) cited approvingly by this Court in

the opinion sought to be reheard.

ARGUMENT

This argument begins with the factual under-

pinning of the Court’s contractual opinion. Slip opinion

p. 4.

The decision first points to the prosecutor asking

Paquin, the bank’s vice president, if Paquin had become

Slip opinion at p. 3.

lla

Appendix B

Appellant’s Petition for Rehearing

aware of Attick’s position with Daren; to which Paquin

replied that “Attick was president and sole stockholder”

of Daren. Tr. 7; slip opinion at 4. While that indicates

“the interpretation” a bank official “did in fact make“,

it doesn’t even show that it was reasonably made, and

clearly doesn’t show “the meaning intended by the

Appellant [ |”. Diogo, supra at 905-6.

The second quote is from Mr. Paquin’s cross-

examination, and is on point. However, when read in

context, it could support a jury’s concluding either

that Attick believed himself to be a holder of shares

who could not receive cash disbursements, or that

Attick considered Olympac to be the stockholder, and

therefore cash distributions were only barred to

Olympac. Tr. 80-82.

The pertinent passage begins with Paquin stating

in effect, that Attick told the bank officials that “he

was the sole stockholder” Tr. 81, slip opinion at 4.

However, defense counsel goes on to ask Paquin whether

a document presented to the bank prior to the loan

agreements being signed, stated “that the stock in

J. Daren Company was owned by a holding company”,

and Paquin acknowledges that is correct. Tr. 81. Then

Paquin is asked whether he was on notice that Attick

“did not personally own the stock”, Tr. 81. When he

hedges, he is then asked whether the bank distinguishes,

when they make a loan, between a corporation and

an individual and he finally acknowledges that they

“are separate and distinct”. Tr. 81-82.

Thus, read fully, the testimony just cited could

support the jury’s reaching one of two conclusions:

that Attick indicated to Paquin that he was the holder

of shares for purposes of the loan agreement; or, that

Attick himself, made a distinction between his holding

Olympac shares, and Olympac holding Daren shares.

12a

Appendix B

Appellant’s Petition for Rehearing

While, arguendo, if the jury had been instructed

to decide which meaning Attick intended, a conclusion

favoring the government could be upheld, they were

never so instructed. See infra. The fact, even if true,

that the evidence was strong, does not cure an instruction

which removes from the jury’s consideration an essential

element of the offense, and even in the absence of

objection, requires reversal. United States v. Singleton,

532 F.2d 199, 207 (2nd Cir., 1976). Cf. Henderson v.

Kibbe, 431 U.S. 145, 153 (1977).°

The argument, therefore, turns to the question of

the correctness of the entire charge on Attick’s intent,

the central issue in this case. In Henderson v. Kibbe,

431 U.S. 145 (1977), the Supreme Court addressed how

to make such a determination. Henderson arose out

of a habeas corpus petition, and thus involved certain

stringent considerations not present in the instant

case, i.e., did the erroneous instruction so infect “ ‘the

entire trial that the resulting conviction violates due

51 *

process. Henderson, supra at 154.

The more general test set forth in Henderson is

that “an appraisal of the significance of an error in

the instructions to the jury requires a comparison of

the instructions which were actually given with those

that should have been given.” Henderson, supra 431

USS. at 154.

The first question is what should the instruction

have been. This Court has adopted the Diogo test in

this opinion, p. 3, and it is from Diogo that Appellant

draws what the instruction should have been, applying

that standard to the Rhode Island law relied upon by

this Court.

the evidence was plainly sufficient to prove that fact beyond

a reasonable doubt. It is equally clear that the record requires us

to conclude that the yury made such a finding.” (emphasis supplied).

13a

Appendix B

Appellant’s Petition for Rehearing

“The Government has charged in its indictment

that the defendant Nicholas Attick, was a share-

holder of J. Daren & Sons, Inc., and as such

violated a loan agreement entered into on

March 23, 1979. Whether the defendant believed

himself to be a holder of stock of J. Daren & Sons

is an essential element of the offense charged

under the circumstances of this case.

“In deciding whether the defendant so believed

you need not take his word alone on whether

he believed himself to be a shareholder of J. Daren;

you may consider ‘the words of the contract and

the circumstances surrounding the choice of

those words, including representations made

in the course of the negotiations’. But in con-

sidering such evidence, you are not being asked

to decide whether the bank believed Nicholas

Attick was a holder of Daren shares; you are

not asked to decide whether the bank might

reasonably have believed Nicholas Attick to

be a holder of Daren shares.“ The question you

are to decide is whether Nicholas Attick believed

himself to be a holder of J. Daren shares,“ and

you must decide that he did so believe beyond

a reasonable doubt, in order to convict.”

The instruction that was given began correctly;

the first sentence in the proposed charge is identical

to the first sentence in the actual charge. Tr. 676. The

second sentence in the proposed charge is similar. There

are two important differences: (1) where the proposed

charge stays with the language of the contract and

“Slip opinion, at 3.

United States v. Diogo, 320 F.2d 898, 905-6 (2nd Cir. 1963).

"Id.

l4a

Appendix B

Appellant's Petition for Rehearing

indictment, i.e., holder of shares, the actual charge

introduced the concept of ownership of stock; (2) more

importantly, the proposed charge focused upon Attick’s

belief in whether he held Daren stock, and the actual

charge focuses upon “[w]hether the defendant is an

owner of stock of J. Daren”. Tr. 676. Since the jury

could determine that the bank not only believed Attick

to be a Daren shareholder, but that such an “inter-

pretation „ might reasonably have [been] made,”

Diogo, supra at 906, they were misdirected on how to

consider the evidence.

However, all of this pales compared to the next

sentence. Instead of commanding the jury to consider

what Attick believed as revealed in his statements

in the critical period leading up to the signing of the

contract, the jury is instead told that if they found that

J. Daren stock was owned by Olympac, and defendant

was the sole stockholder of Olympac, “you may find

that the defendant was the beneficial owner of the

stock of J. Daren Company”. Tr. 676. This told the

jury to ignore any evidence regarding conversations

prior to the loan agreement being signed; ignore Attick’s

repeated statements that he owned Daren through a

holding company, and what that statement may have

meant to Attick. In fact, the jury is directed to ignore

all of the evidence that this Court has relied upon to

sustain the correctness of the instruction under Rhode

Island law. The objected-to instruction orders the jury

to only consider two pieces of evidence, both conceded

by the defendant on the stand. Tr. 632. Contrary to

Henderson, the record in the present case requires a

conclusion that the jury never considered whether

Attick believed himself to be a J. Daren shareholder;

that the jury never considered the record testimony

eited to by this Court; and that the instruction objected

to here told the jury that since the two matters they

15a

Appendix B

Appellant’s Petition for Rehearing

were to review under the reasonable doubt standard

were both testified to by the defendant, the jury was,

in effect, directed to find Nicholas Attick a holder of

J. Daren shares and thus guilty.

That brings up the next issue in this petition: does

the absence of the request for “an appropriate instruc-

tion,” i.e., the instruction suggested earlier in this

petition, bar this Court from addressing the issues

raised herein. Given the circumstances of this trial

and appeal, the answer must be no.

First, since neither the government nor the District

Court considered the instruction in light of any Rhode

Island law, let alone contract law, the only justification

for penalizing trial counsel for not seeking the instruc-

tion proposed in this petition would be to hold him

accountable for not predicting the basis on which an

appellate court would eventually sustain the instruc-

tions. Therefore, in the unique circumstances of this

case, the plain error rule should not apply.

However, even if it does apply, such a standard

is met in this case. The Second Circuit has applied it

“where [as here] the charge on a whole had the effect

of removing an essential element of the offense from

the jury’s consideration, United States. v. Singleton,

532 F.2d 199, 207 (2nd Cir. 1976)” United States v.

Moore, 571 F.2d 76, 89 (2nd Cir. 1978).

Finally, this Court held that even if Rhode Island

corporation, rather than contract, law applied, the

Rhode Island courts would have pierced the “corporate

veil to find Attick the holder of J. Daren’s shares.”

Slip opinion at 5.

Again, this only goes half-way: while it authorizes

a jury to consider beneficial ownership, it did not

instruct the jury to convict only if it concluded that

Attick believed himself to be a holder of Daren’s shares.

l6a

Appendix B

Appellant’s Petition for Rehearing

Thus, if the jury were correctly instructed to decide,

on all the pertinent evidence, whether Attick believed

himself to be such a shareholder, arguably this Court

could affirm his conviction. But so long as the jury was

so instructed that it (1) never considered his belief and

(2) was told that the only evidence regarding who held

the shares was the uncontested evidence of the chain of

ownership, the issue of Attick’s belief was improperly

taken away from the jury by the objected-to instruction.

CONCLUSION

Based on the arguments set forth above, Appellant

petitions this Court to reconsider its decision entered

on May 22, 1981; withdraw that decision; hold that

the instruction on Attick’s being a Daren shareholder

was erroneous in that it took this issue from the jury;

and therefore the judgment of conviction must be

vacated, and a new trial ordered.

By his attorney,

Marshall D. Stein, Esquire

Hale, Sanderson, Brynes & Morton

Ten Post Office Square

Boston, MA 02109

(617) 582-1187

17a

Appendix C

Appellant’s Motion for Permission to File

an Amendment to His Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 80-1726

UNITED STATES OF AMERICA,

Appellee,

V

NICHOLAS A. ATTICK,

Defendant, Appellant.

APPELLANT’S MOTION FOR PERMISSION TO

FILE AN AMENDMENT TO HIS PETITION

FOR REHEARING

Now comes the Appellant, Nicholas A. Attick and

requests this Court grant an order permitting him to

file a amendment to his petition for rehearing.

In support of this motion Appellant states:

1. That Roy M. Cohn, Esq., is his counsel in New

York and Connecticut and represents him in

civil actions relating to the facts relevant

to his criminal conviction.

2. That recent trends in the United States Court

of Appeals for the Second Circuit have per-

mitted said Court to review a defendants

sentence.

3. That the issue regarding the length of his

sentence was not addressed by this Court.

4. That Roy M. Cohn, Esq., acting of counsel

to Hale, Sanderson, Brynes & Morton, seeks

permission to submit, an amendment to

Appellant’s petition for rehearing outlining

the aforesaid trend.

18a

Appendix C

Appellant's Motion for Permission to File

an Amendment to His Petition for Rehearing

WHEREFORE, Appellant moves that this Motion

be granted.

By his attorney,

Marshall D. Stein

Hale, Sanderson, Brynes & Morton

Ten Post Office Square

Boston, MA 02109

(617) 482-1187

19a

Appendix C

Appellant’s Motion for Permission to File

an Amendment to His Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

V

NICHOLAS A. ATTICK,

Defendant, Appellant

AFFIDAVIT IN SUPPORT OF MOTION

STATE OF NEW YORK)

COUNTY OF NEW YORK)

ROY M. COHN, being duly sworn, deposes and says:

1. I am New York counsel to Nicholas A. Attick

(“Attick”), the Appellant herein and represent him in

legal matters in New York and Connecticut. I am

admitted to practice law before all of the Courts of the

State of New York; United States Court of Appeals for

the Second and Fifth Circuits; United States District

Courts for the Southern and Eastern Districts of New

York; and have been admitted pro hoc vice in various

Courts throughout the United States, including, but not

limited to, the States of Connecticut, Michigan, New

Jersey and Texas. For purposes of the within action I

am appearing of counsel to Hale, Sanderson, Brynes &

Morton, Appellant’s counsel in the appeal at bar.

2. I submit the within affidavit in support of a

motion permitting Appellant to file an amendment

to his petition for rehearing addressing the severity

of his sentence. This Court has not previously addressed

this issue.

20a

Appendix C

Appellant’s Motion for Permission to File

an Amendment to His Petition for Rehearing

3. On May 30, 1980, Appellant was convicted on

five counts of submitting false statements to a federally

insured bank for the purpose of influencing the bank

to loan a company money in violation of Title 18, U.S.

Code §§ 1014 and 2(b).* He was sentenced to a total

of four years imprisonment and fined $25,000.00.

3. Attick is a well-established Connecticut busi-

nessman who enjoys an excellent reputation throughout

the State of Connecticut where he has always resided.

His conviction in this matter of a white collar crime

results from a contract interpretation and should not

have led to such a severe sentence.

5. Developments in the United States Court of

Appeals for the Second Circuit have recently permitted

said Court to review a defendants sentence. As a large

portion of my practice is in the Second Circuit I am

more familiar with this recent trend than Appellant’s

local counsel.

6. In light of the foregoing I therefore respectfully

request the opportunity to address this issue by sub-

mitting a review of this matter as an amendment to

Appellant’s petition for rehearing. Such an amendment

can be prepared and filed by Monday, June 15, 1981.

WHEREFORE, it is respectfully requested that

this Court issue an order permitting Appellant to file

an amendment to his petition for rehearing addressing

the severity of his sentence.

Js;

ROY M. COHN

[Notarized]

*Title 18, U.S.C. § 1014 states in part: “Whoever knowingly

makes any false statement or report ... for the purpose of influencing

in any way the acts of ... any bank the deposits of which are insured

by the Federal Deposit Insurance Corporation ... upon any applica-

tion, advance ... or loan ... shall be fined not more than $5,000 or

imprisoned for not more than 2 years or both.”

21a

Appendix C

Appellant’s Motion for Permission to File

an Amendment to His Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 80-1726

UNITED STATES OF AMERICA,

Appellee,

v

NICHOLAS A. ATTICK,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF RHODE ISLAND

PROOF OF SERVICE

Suffolk, ss. Boston, Massachusetts

June 8, 1981

I, Marshall D. Stein, hereby certify that I have

this day served two copies of the Appellant’s Motion

For Permission To File An Amendment To His Petition

For Rehearing by mailing same, postage prepaid, to

Assistant United States James O’Neill, Office of the

United States Attorney, 221 Federal Building, Provi-

dence, Rhode Island 02903, attorney for the appellee.

/s/

Marshall D. Stein

22a

Appendix D

Constitutional Provisions Involved in the Case

UNITED STATES CONSTITUTION,

AMENDMENT VI:

“In all criminal prosecutions, the accused shall

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

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defence.“

TITLE 18, UNITED STATES CODE, § 1014:

“Whoever knowingly makes any false statement

or report, or willfully overvalues any land, property

or security, for the purpose of influencing in any way

the action of the Reconstruction Finance Corporation,

Farm Credit Administration, Federal Crop Insurance

Corporation, Farmers’ Home Corporation, the Secretary

of Agriculture acting through the Farmers’ Home

Administration, any Federal intermediate credit bank,

or any division, officer, or employee thereof, or of any

corporation organized under sections 1131-1134m of

Title 12, or of any regional agricultural credit corporation

established pursuant to law, or of the National Agri-

cultural Credit Corporation, a Federal Home Loan

Bank, the Federal Home Loan Bank Board, the Home

Owners’ Loan Corporation, a Federal Savings and

Loan Association, a Federal land bank, a joint-stock

land bank, a Federal land bank association, a Federal

Reserve bank, a small business investment company,

a Federal credit union, an insured State-chartered

credit union, any institution the accounts of which

are insured by the Federal Savings and Loan Insurance

Corporation, any bank the deposits of which are insured

23a

Appendix D

Constitutional Provisions Involved in the Case

by the Federal Deposit Insurance Corporation, any

member of the Federal Home Loan Bank System, the

Federal Deposit Insurance Corporation, the Federal

Savings and Loan Insurance Corporation, or the

Administrator of the National Credit Union Adminis-

tration, upon any application, advance, discount,

purchase, purchase agreement, re-purchase agreement,

commitment, or loan, or any change or extension of

any of the same, by renewal, deferment of action or

otherwise, or the acceptance, release, or substitution

of security therefor, shall be fined not more than $5,000

or imprisoned not more than two years, or both.”

GENERAL LAWS OF RHODE ISLAND,

§ 7-1.1-2(f):

7.1.12. Definitions. -- As used in this chapter,

unless the context otherwise requires, the term:

„) ‘Shareholder’ means one who is a holder of

record of shares in a corporation.”

24a

Appendix E

Notice of Appeal to the Supreme Court

of the United States

UNITED STATES COURT OF APPEALS

‘ FOR THE FIRST CIRCUIT

NO. 80-1726

UNITED STATES OF AMERICA,

Appellee,

V

NICHOLAS A. ATTICK,

Defendant, Appellant.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Nicholas A. Attick,

the appellant above-named, hereby appeals to the

Supreme Court of the United States from the final

order and the order denying a petition for rehearing,

affirming the judgment of conviction, entered herein

on May 22, 1981 and June 17, 1981, respectively.

This appeal is taken pursuant to 28 U.S.C. 1254(1).

/s/

Marshall D. Stein

Hale, Sanderson, Byrnes & Morton

Ten Post Office Square

Boston, MA 02109

(617) 482-1187

OF COUNSEL

/s/

Roy M. Cohn, Esq.

Saxe, Bacon & Bolan, P.C.

39 East 68th Street

New York, N.Y. 10021

(212) 472-1400

25a

Appendix E

Notice of Appeal to the Supreme Court

of the United States

PROOF OF SERVICE

Suffolk, ss. Boston, Massachusetts

June 22, 1981

I, Marshall D. Stein, hereby certify that I have

this day served a copy of the NOTICE OF APPEAL

TO THE SUPREME COURT OF THE UNITED

STATES by mailing same, postage prepaid, to Assistant

United States Attorney James E. O'Neill, Office of

the United States Attorney, P.O. Box 1401, Providence,

Rhode Island 02901.

/8/

Marshall D. Stein