Petition — Berns v. United States

81-2248

No.

In THE

Supreme Court of the United States

Octoser TERM, 1981

MELFORD BERNS,

Petitioner,

vs.

United States Or AMERICA.

On Writ of Certiorari

To the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Int B. Baris

(Counsel of Record)

611 Olive Street - Suite 2020

St. Louis, Missouri 63101

(314) 231-1312

Attorney for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED FOR REVIEW

I.

Whether the statute of limitations (18 U.S.C. § 3282) bars

prosecution where the only false matters in controversy occur-

red more than five years before the indictment and the only act

allegedly within the limitation period consisted of the mere sub-

mission of a claim to the government based upon the time-

barred falsifications.

Whether the District Court, being advised in advance that

witness Plocker, the brother-in-law of petitioner and a non-

immunized unindicted co-conspirator, would invoke his Fifth

Amendment privilege, erred in directing that he assert his

privilege in front of the jury, contrary to the doctrine and pro-

cedure established in Namet v. United States, 373 U.S. 179

(1963), and numerous Court of Appeals decisions.

Whether witness Becker could testify as to certain statements

allegedly made by Plocker outside the presence of petitioner,

where there was no independent evidence of the existence of a

conspiracy involving Plocker.

IV.

Whether a waiver of the attorney - client privilege by peti-

_ tioner’s employer bars petitioner from asserting the privilege af-

forded him by Upjohn Company v. United States, 449 U.S. 383

(1981).

V.

Whether, under Kotteakos v. United States, 328 U.S. 750

(1946), the District Court erred in submitting the cause to the

jury for the reason that if there was evidence of a conspiracy,

the government’s proof was as to the existence of multiple

separate conspiracies.

LIST OF PARTIES

Petitioner Melford Berns is an individual residing in St. Louis

Although not parties to the proceedings below, the following

corporations were frequently mentioned in the evidence, as the

contract between them was involved in these proceedings:

Union Carbide Corporation, Nuclear Division, Oak Ridge,

Tennessee, a publicly-held corporation;

Burnup & Sims, Inc., a publicly-held corporation, and its

wholly-owned subsidiary, Line Dismantling Company.

TABLE OF CONTENTS

Page

Questions presented for review................00005: i

aa ee nn 8 oc bis Sake ecubone ii

i ae or le ee cane iii

ES | EY See REE iv

EER SES a EE ee eT 1

2

Constitutional provisions, statutes and rules involved . . 2

IS o- . Oi cin iddhlences ésévecekee 3

NEE cnbbdataeecduls teseissusathederenesoe on 13

I. Statute of limitations ...............0.0065 13

Il. Plocker’s Fifth Amendment invocation ..... 16

Ill. Becker testimony of Plocker statements ..... 20

IV. Attorney -client relationship .............. 22

V. Multiple conspiracies ..-..............000 24

SEE 4.5 050d be cescedicdigeas cdvencecenes vids 26

Appendix :

A. Opinion of Court of Appeals, dated January

4, 1982 (styled Order)... ........-0000ceees A-l

B. Order on rehearing of Court of Appeals,

GEE Fe GUTEENS 0 dos hedwbscdacndséedee A-6

iv

C. Order of District Court overruling post-trial

motions, dated November 19, 1980 ......... A-7

Constitutional provisions involved ......... A-ll

Statutes involved ..............0eeeeeeees A-l1

i A-13

TABLE OF AUTHORITIES

Cases

Bridges v. United States, 346 U.S. 209 (1953).......... 14

DeGesualdo v. People, 364 P. 2d 374 (Colo. 1961) ..... 19

Fletcher v. United States, 332 F. 2d 724 (D.C. Cir. 1564) 19

Grunewald v. United States, 353 U.S. 391 (1957) ...... 13

Kotteakos v. United States, 328 U.S. 750 (1946) ....... 25

Labbe v. Berman, 621 F. 2d 26 (Ist Cir. 1980) ......... 18

Melton v. United States, 398 F. 2d 321 (10th Cir. 1968) . 18,19

Namet v. United States, 373 U.S. 179 (1963) .......... 18

Rado v. Connecticut, 607 F. 2d 572 (2nd Cir. 1979) .... 19

Robbins v. Small, 371 F. 2d 793 (Ist Cir. 1967) ........ 19

Sanders v. United States, 373 F. 2d 735 (9th Cir. 1967).. 19

San Fratello v. United States, 340 F. 2d 560 (Sth Cir.

GED beck iscceccdcsvccctponccoceecscececses 18,19

Toussie v. United States, 397 U.S. 112 (1970) ......... 14

United States v. Coppola, 479 F. 2d 1153 (10th Cir.

BOVE bd er evecccephen odWheurndpadraveseansiees 19

United States v. Davis, 533 F. 2d 921 (Sth Cir. 1975).... 14

United States v. Dingle, 546 F. 2d 1378 (10th Cir. 1976) . 19

United States v. Enright, $79 F. 2d 980 (6th Cir. 1978).. 21

United States v. King, 461 F. 2d 53 (8th Cir. 1972) ..... 19

United States v. Laut, 17 F.R.D. 31 (S.D.N.Y. 1955)... 13

United States v. Maloney, 262 F. 24535 (2nd Cir. 1959) 19

United States v. Prior, $46 F. 2d 1254(Sth Cir. 1977)... 19

United States v. Ritz, $48 F. 2d $10 (Sth Cir. 1977)... 18,19

United States v. Radeker, 664 F. 2d 242 (10th Cir. 1981) 22

United States v. Scharton, 285 U.S. 518(1931) ........ 14

United States v. Tuley, $46 F. 2d 1264 (Sth Cir.1977)... 19

United States v. Vandetti, 623 F. 2d 1144 (6th Cir. 1980) 19

United States v. Vinson, 606 F. 2d 149 (6th Cir. 1979) .. 21

Upjohn Company v. United States, 449 U.S. 383 (1981) 23

Wellman v. United States, 253 F. 2d 601 (6th Cir. 1958). 14

Zeigler v. Callahan, 659 F. 2d 254 (Ist Cir. 1981)....... 19

Constitutional Provisions

Constitution of the United States

Fifth Amendment .............-600sceeeeees 2,16, 18,19

Statutes

Title 18, United States Code, § 3282 ..............45: 2,13

Title 18, United States Code, § 6001 et seq. ........... 16

Rules

Federal Rules of Evidence, Rule 104................. 2,21

Rule 801(d)(2)(E) ......... 2,21

Miscellaneous

Annotation, ‘‘Prejudicial effect of prosecution’s calling

as witness, to extract claim of self-incrimination

privilege, one involved in offense with which accused

is charged."’ 86 A.L.R. 2d 1443................. 19

Weinstein’s Evidence, 4 104/05] .................... 21,22

7 801(d)(2)(E)01} ............. 21

Unirep States Or AMERICA.

On Writ of Certiorari

To the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

This cause was decided on January 4, 1982, by a panel of the

United States Court of Appeals for the Sixth Circuit (Circuit

Judges Weick, Engel and Merritt), in an opinion, designated an

order, which has not been officially reported. This order is

reproduced as Appendix A hereto.

On April 7, 1982, the Court of Appeals entered an order de-

nying petitioner’s petition for rehearing. (See Appendix B.) No

opinion was written, and the order has not been officially

reported.

cna

The District Court (The Honorable Robert L. Taylor, United

States District Judge for the Eastern District of Tennessee) filed

an order and memorandum opinion on November 19, 1980,

denying petitioner’s post-trial motion for judgment of acquittal

and motion for new trial. Said order and opinion have not been

officially reported, and are reproduced as Appendix C hereto.

The order of the United States Court of Appeals affirming

petitioner’s conviction was entered on January 4, 1982. (See

Appendix A.) No separate judgment was entered by the Court.

Petitioner filed a timely petition for rehearing and suggestion of

appropriateness of rehearing en banc, which was denied on

April 7, 1982. (See Appendix B.)

The jurisdiction of this Court is invoked under 28 U.S.C. §

12$4(1).

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

This petition involves an interpretation of the Fifth Amend-

ment to the Constitution of the United States, the text of which

is set out in Appendix D.

Petitioner was charged with felony violations of 18 U.S.C. §§

371, 2, 287 and 1001, the text of which are set out in Appendix

E. This petition also involves an interpretation of the statute of

limitations contained in 18 U.S.C. § 3282, the text of which is

also set out in Appendix E.

This petition also involves an interpretation of Rules 104(a)

and (b) and 801 (d)(2)(E) of the Federal Rules of Evidence, the

text of which is set out in Appendix F.

on Oa

STATEMENT OF THE CASE

Petitioner Melford Berns and Gerald J. Aul' were charged

with violations of federal law in a four-count indictment (A-5)’

filed in the United States District Court for the Eastern District

of Tennessee at Knoxville. Count | charged that between July 1,

1974 and the return date of the indictment (June 11, 1980), Aul,-

petitioner and two unindicted co-conspirators, Edmund R.

Shulman and Stanley Plocker, conspired with each other and

others unknown, in violation of 18 U.S.C. § 371, to defraud the

United States by presenting a false claim (18 U.S.C. § 287) to an

agency of the United States and by making false statements (18

U.S.C. § 1001), in connection with matters within the jurisdic-

tion of a department or agency of the United States. Of twenty-

nine overt acts alleged in Count 1, only one (No. 29) (A-16) was

within the five-year period immediately preceding the filing of

Count 2 of the indictment charged that on or about July 1,

1975, Aul and petitioner presented a false claim in the amount

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with reference to losses sustained by the alleged cancellation of

false and fraudulent contracts pertaining to copper cable be-

tween Line Dismantling Company (hereinafter LDC) and

Shulman international Metals Company (l.ereinafter SIMCO),

in violation of 18 U.S.C. §§ 2 and 1001. Count 4 charged that

on or about July 1, 1975, Aul and petitioner made false

statements to the government agency by submitting three false

and fraudulent contracts between LDC and NIMCO Trading

Company, Inc. (hereinafter NIMCO), and three false and

fraudulent contracts between LDC and SIMCO, in violation of

18 U.S.C. §§ 2 and 1001.

Petitioner’s trial commenced on October 6, 1980 (A-2), and

on October 9, the jury found petitioner guilty on all four counts

(Tr. 694, A-606). Various witnesses and documents were offered

by the government, but petitioner called no witnesses. The suffi-

ciency of the evidence, as well as other evidentiary issues and an

issue pertaining to the statute of limitations, were raised on ap-

peal.

The evidence on the part of the government tended to show

field operational activities (Tr. 358-359, 437-439, 518-519, 539,

§54-555, A-352-353, 431-433, 502-503, 524-525).

LDC’s business consisted of bidding on contracts with

lines. LDC was the successful bidder on a contract, UCC-ND

2146 (Exh. 1, A-607), with Union Carbide Corporation,

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$1,361,234.00 (Tr. 21-22, A-36-37).’ Aul bid on the contract in

behalf of LDC on November 14, 1973, and his bid was accepted

by Union Carbide on November 16, 1973 (Exhs. | and 2, Tr. 23,

82-84, A-607, 611, 614, 641, 38, 97-99). Performance of the

contract was basically in two phases. Phase one was completed

successfully and without incident in January, 1974. The second

phase was to commence on October 1, 1974, and to be com-

pleted within 90 days (Tr. 25-28, 84-85, A-40-43, 99-100).

On August 21, 1974, petitioner, who happened to be in

LDC’s office in St. Louis, received a telephone call from D. R.

formed petitioner (confirmed by telegram - Exh. 17, Tr. 111,

A-669, 126), that Union Carbide would not be able to meet the

October | commitment under the contract, and that only 15%

to 20% of the copper would be available at that time. Petitioner

indicated that this would create damages for LDC, and that he

would have to notify the purchasers who were under contract

with LDC to buy the copper. McCammon’s notes reflected that

petitioner mentioned Lissner and Nuclear Trading as the pur-

chasers, and McCammon testified that petitioner might have

said NIMCO Trading instead of Nuclear (Tr. 32-35, 39-40,

98-112, A-47-50, 54-55, 113-127).

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Before and after that date, there was considerable cor-

respondence and telephone conversations between Aul (not

petitioner) and Union Carbide representatives concerning these

performance problems and damages (Exhs. 4-9, 16, 18-22, Tr.

29-32, 36-46, 49-51, 88-98, 112-121, 127-128, A-643-650, 668,

670-677, 44-47, 51-61, 64-66, 103-113, 127-136, 142-143). Aul

advised Union Carbide’s representatives that LDC had entered

into contracts for the resale of the copper, that when the pur-

chasers learned that the contract would not be completed on

schedule, they cancelled the contracts to buy (the market on

copper having dropped at that time), and that as a result, LDC

stood to lose $600,000.00 or $700,000.00 in damages.

Thereafter, LDC and Union Carbide representatives met in

Oak Ridge on September 4 and 24, 1974. Efforts were made to

resolve the problem and avoid substantial damages claimed by

LDC. The evidence indicated that petitioner attended but took

very little part in these meetings, and that he only participated in

conversations or in correspondence concerning the operational

completion of the contract (Exhs. 10-12, 23, T. 51-57, 123-125,

128-131, A-651-654, 681-684, 66-72, 138-140, 143-146). The

matter was finally resolved at the September 24, 1974 meeting,

when LDC was permitted to deposit only a portion of the

money required under the original contract with a bond

guarantee as to the balance, and Union Carbide would provide

other cable for some of that which could not be removed

because of the delays, it being understood that LDC would

thereafter attempt to settle or file a claim for damages. This set-

tlement was negotiated for LDC by Aul and an attorney from

the Washington law firm of White and Case. All LDC par-

ticipants left after the settlement, except petitioner, who re-

mained an extra day to discuss resumption of the field opera-

tions with Union Carbide (Exh. 13, Tr. 46-48, 57-73, 121-127,

131-136, 138-147, 166-170, 171-173, 393-398, 404-408, 520-524,

556-559, A-655, 61-63, 72-88, 136-142, 146-151, 153-162,

181-185, 186-188, 387-392, 398-402, 504-508, 526-529).

ae Bani

Thereafter, the dismantling operations began and the con-

tract was completed, but the issue of damages still remained. On

October 11, 1974, Aul (not petitioner) sent a telegram to Union

Carbide (Exh. 14, Tr. 73-75, A-656-658, 88-90), and Chester

Brewer, an LDC vice-president in the home office of Burnup &

Sims, sent a lengthy letter to Union Carbide (Exh. 15, Tr. 76,

§24-528, 571-572, A-659-667, 91, 508-512, 541-542), claiming

$662,500.00 damages. The Brewer letter reviewed the history of

the matter and referred to contracts with NIMCO and SIMCO

to purchase the copper and lead (Exhs. 29-37, A-698-706). He

also stated that the copper contracts had been cancelled by SIMCO

on August 21, 1974, the cancellation notice (Exh. 43, A-741)

having been received at the Burnup & Sims home office on

September 23, 1974 (Tr. 572-575, A-542-545).

There was substantial correspondence thereafter (Exhs.

24-26, A-685-688) and efforts by LDC (Brewer and Aul, but not

petitioner) to obtain copies of the NIMCO and SIMCO con-

tracts for Union Carbide (Tr. 147-151, 170-171, A-162-166,

185-186). In fact Aul, Brewer and a White and Case lawyer

traveled to California to meet with SIMCO’s principal, Edmund

Shulman, and they attempted to get copies of the contracts (Tr.

231-234, 304-311, 528-529, 531-539, 564-571, 577-578,

A-246-249, 319-326, 512-513, 515-523, 534-541, 547-548). Finally,

on December 17, 1974, a letter (Exh. 27, A-689-692) was sent by

Aul (not petitioner) to Union Carbide, together with a package

of documents (Exh. 28, A-693-697) which included the NIMCO

and SIMCO contracts (Exhs. 29-37, A-698-706); this letter set

forth the basis of LDC’s claim for $734,250.00 (Tr. 151-164,

173-174, A-166-179, 188-189).

Under the original contract between Union Carbide and LDC

(paragraph 14, pages 10-11, A-617-618), disputes which could

not be settled were to be decided by the ‘‘Contracting Officer’.

When the claim submitted by Aul on December 17, 1974 (Exhs.

27 and 28, A-689-697) was not resolved, a letter (Exh. 38,

A-707-727) dated June 19, 1975, was addressed to R. J. Hart,

Contracting Officer for the Department of Energy. The letter

to Mr. Hart was basically a consolidation of the letters of Oc-

tober 11, 1974 from Brewer of LDC to Union Carbide (Exh. 15,

A-659-667) and the claim letter of December 17, 1974 from Aul

to Union Carbide (Exh. 27, A-689-692); a package of

documents (Exh. 39, A-728-733), again including the NIMCO

and SIMCO contracts, was attached. Mr. Hart testified that Ex-

hibits 38 and 39 were received on July 1, 1975; he also testified

that he had been aware of the claim submitted to Union Carbide

(Exhs. 27 and 28) for at least six months before he received the

letter dated June 19, 1975 (Tr. 177-187, A-193-202).’

The letter of June 19, 1975, purported to bear the signatures

of Aul and petitioner, but there was no evidence that petitioner

signed the document. (Although the government did not in-

troduce the evidence, FBI handwriting experts had stated that

they could not testify that the signature was that of petitioner.)

The government’s evidence as to the falsity of the SIMCO

contracts on which the claim was based relied on the testimony

of Edmund Shulman, an unindicted co-conspirator who ap-

peared under a grant of immunity (Tr. 213, A-228).* He testified

that Aul (not petitioner) had proposed to him, after it appeared

‘ Asa matter of fact, Hart had been sent a copy of the Brewer letter

of October 11, 1974 (Exh. 15, A-659-667). He had earlier received a

copy of a letter sent by LDC’s attorney to Hart’s predecessor as

“Contracting Officer”’ (Exh. 22, A-677-679).

ape Anema 2 gt Ngee wendy de> wr

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interviewed Shulman in California (Tr. but

then maintained that they were valid contracts (Tr. 197, A-212). Cor-

pane ny eta bn ll mem Ay oat yond bing nw fat med

tracts was a statement of Burnup & Sims’ president that he had seen

the original NIMCO contracts in St. Louis in the spring of 1974 (Tr.

541-563, A-531-533).

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Union Carbide could not complete the delivery of the copper on

time, that they prepare some back-dated contracts which would

give the impression that LDC had sold the copper to NIMCO,

and thereafter on the same terms to its successor SIMCO, at

prices favorable to LDC, and that SIMCO would then cancel

these contracts because of the inability of Union Carbide to

deliver (Exh. 43, Tr. 237-239), A-741, 252-254), so that Aul

would have evidence of the substantial loss suffered by LDC.

Shulman explained that originally he had done business as NIM-

CO and that the original phony contracts would be made with

NIMCO. Thereafter, SIMCO was incorporated and took over

the business of NIMCO, assuming the NIMCO-LDC contracts.

Shulman testified that all these contracts were not valid. For his

part in the transaction, Aul promised that Shulman would

receive $40,000.00 - $50,000.00, which he never received (Tr.

213-220, 223-231, 234-242, 255-257, 258, 279-297, 300-304,

A-228-235, 238-246, 249-257, 270-272, 273, 294-312, 315-319).

NIMCO had another contract with LDC, also replaced by a

SIMCO contract, pertaining to purchase of lead from the pro-

ject (Exhs. 35, 36, and 37, A-704, 705, 706). Over objection (Tr.

245-246, A-260-261), Shulman testified that he did, in fact,

receive the lead, but that he and Aul agreed that SIMCO would

downgrade the lead, that is, claim that it was inferior to contrac-

tual specifications, so that Aul would reduce the price to SIMCO

(Exhs. 46, 50, A-744, 748-752). Shulman claimed that he was to

give one-half of the price reduction to Aul, thus cheating LDC

but not Union Carbide or the government in any way. He

testified that he delivered a cashier’s check for $15,000.00

payable to “‘H. E. Rosen’’ (Exh. 47, A-745) to petitioner in Las

Vegas on November 14, 1974, which petitioner therafter cashed,

and that petitioner then gave him $7,500.00 in gambling chips.

There was no other evidence that petitioner had cashed the

check; the evidence tended to show that petitioner was not then

in Las Vegas (a few days after the birth of his youngest child in

St. Louis), but that Aul was on his way back from Los Angeles,

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and that he was a guest at the Desert Inn in Las Vegas on

November 13 and 14, 1974 (Exh. 88, Tr. 220-222, 225, 244-250,

254-255, 263-268, 275-278, 297-300, 305, 311-315, 321-322,

566-567, 575-577, 625-632, A-834, 835, 837, 847, 235-237, 240,

259-265, 269-270, 278-283, 290-293, 312-315, 320, 326-330,

336-337, 536-537, 545-547, 583, 590).

Over objection (Tr. 345-346, A-339-340), the Court admitted

evidence concerning other sales by LDC of copper, F.O.B. Oak

Ridge, to Lissner Minerals and Metals and Gerald Metals (Exhs.

52, 53, 55, and 56, A-754, 755, 757, 758).’ When it appeared

unlikely that the copper would be delivered as scheduled from

the Oak Ridge project, LDC arranged for Becker Iron & Metals

of St. Louis to assume the LDC contracts with Lissner and

Gerald and to deliver the copper to them. Such transfers of con-

tracts are not unusual (Exhs. 51, 54, 57, Tr. 347-370, 373-390,

A-753, 756, 759, 341-364, 367-384).°

Becker Iron & Metals was operated by the Becker family, in-

cluding David Becker, who testified, and Stanley Plocker, who

refused on Fifth Amendment grounds to testify for the govern-

ment. Becker’s testimony indicated that Plocker had discussed

the deal he had allegedly made with petitioner whereby Becker

Iron & Metals would take over the performance of LDC con-

tracts with Lissmer and Gerald. According to a worksheet

prepared by Plocker, the company agreed to pay LDC a com-

mission of $122,000.00 (Exh. 73, A-800). Thereafter Plocker

’ There was evidence from persons in the business that it was not

unusual to sell more copper than might come out of a project because

copper could always be bought on the open commodities market (Tr.

364-366, A-358-360).

* Actually copper was not delivered on the Gerald contract; Gerald

and Becker agreed to, in effect, cancel the agreement and Gerald paid

Becker $91,250.00 for the cancellation (Exhs. 58, 59, Tr. 378-382,

388-389, A-760, 761, 372-376, 382-383).

allegedly told Becker inat petitioner wanted the checks to be

made payable to ‘‘M. T. Stuart’’, and cashier’s checks (Exhs.

66-70, A-755-779) were so issued, according to vouchers (Exhs.

81-85, A-808-812) authorized by Becker (Tr. 452-454, 456-480,

484-488, 489-509, 512-515, A-436-438, 440-464, 468-472,

473-493, 496-499).

There was evidence concerning other Becker company checks

made payable to ‘‘M. T. Stuart’’ and “‘L. C. Jones” (Exhs.

64-65, 74-80, Tr. 482-484, 509-512, A-773-774, 801-807,

466-468, 493-496}, and the checks in evidence were apparently

cashed at Las Vegas hotels. Records of the Desert Inn in Las

Vegas as to separate visits by petitioner (Exh. 87, A-814-833)

and Aul (Exh. 88, A-834-847) had entries bearing the names of

Stuart and Jones, but there was no competent testimony as to

the actual cashing of the checks, other than record identifica-

tion by the present custodian who had no personal knowledge

or duties as to the transactions (Tr. 598-599, 615, A-556-557,

573).

At the close of the government’s case, petitioner’s motion for

judgment of acquittal was overruled (Tr. 644, A-2, 602), and he

did not testify or present any further evidence. The cause was

submitted to the jury on all four counts, and the jury returned a

verdict finding him guilty as to all counts (Tr. 694, A-606).

Thereafter, petitioner filed a post-trial motion (A-3); on

November 19, 1980, this motion was denied (A-4, 26-30; see

also Appendix C hereto), and he was sentenced to a term of im-

prisonment for three years on Count 1, with parole eligibility at

such time as the United States Parole Commission may deter-

mine, under the provisions of 18 U.S.C. § 4205(b). Petitioner

was also sentenced to pay a fine of $10,000.00 on each of

Counts 2, 3, and 4, for a total fine of $30,000.00 (A-4).

On November 19, 1980, petitioner duly filed his notice of ap-

peal (A-4, 31) to the United States Court of Appeals for the

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Sixth Circuit, and he was released on his existing bond pending

appeal (A-4). The cause was argued before a panel of the Court

of Appeals on December 15, 1981, and on January 4, 1982, an

order was entered affirming the conviction of petitioner. (See

Appendix A hereto.) Thereafter, petitioner filed a petition for

rehearing and suggestion for rehearing en banc, which was over-

ruled on April 7, 1982 (Appendix B).

This petition for a writ of certiorari seeks to review the judg-

ment of the Court of Appeals affirming the conviction of peti-

tioner.

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ARGUMENT

I.

Statute of Limitations

The indictment was filed on June 11, 1980 (A-1, 5). The only

overt act alleged in the conspiracy count to be within five years

before the filing of the indictment was the letter dated June 19,

1975 to R. J. Hart, Contracting Officer (Exh. 38, A-707-727).

This letter was also the basis of the allegations of the substantive

counts 2 to 4 (A-16-20). Petitioner believes that the five-year

statute of limitations contained in 18 U.S.C. § 3282, as inter-

preted by case law, barred the prosecution in this case.

The indictment alleged and the proof indicated that the NIM-

CO and SIMCO contracts (Exhs. 29-34, A-698-703), which the

government claimed were not legitimate, were signed sometime

in 1974, at which time the statute of limitations began to run.

Even if a claim were later submitted on June 19, 1975 by peti-

tioner,’ such fact would not start the running of a new period of

limitations.

In United States v. Laut, 17 F.R.D. 31 (S.D.N.Y. 1955), the

defendant made false statements in 1950; in 1951, he was asked

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repose’’, which is to be liberally interpreted in favor of repose, '°

the Court decided that the gravamen of the offense was the

statements made in 1950 and the proof therefore related to the

1950 events. A mere reassertion in 195! was not sufficient to toll

the statute of limitations.

Similarly, in the instant case, the alleged submission of the

claim on June 19, 1975 merely related back to the 1974 events.

As the Court said in Laut (1.c. 37):

‘*Sustaining such procedure would permit dodging the

Statute of Limitations at will. . . .Such a result would be

openly at war with the ‘theory’, on which ‘Statutes of

only after witnesses and proofs necessary to the protection

of the accused have by sheer lapse of time passed beyond

availability.’ "”

Compare Wellman v. United States, 253 F . 2d 601, 604 (6th Cir.

1958), where it was held that the earlier crucial acts determined

the date for commencement of the statute of limitations.

In United States v. Davis, $33 F .. 2d 921 (Sth Cir. 1976), a case

involving conspiracy to make false statements to the govern-

ment, the statute of limitations was the primary and decisive

issue on appeal. In a lengthy discussion of the statute of limita-

tions, the Fifth Circuit ruled that the false and fraudulent activi-

ty had occurred more than five years prior to the indictment,

just as in the instant case, and that the government could not

come within the period of limitations by proof that a contract

was entered into within the five-year period. The Court further

— —

held that other acts with reference to the false documents,

within the five-year period, would not toll the statute of limita-

In the instant case, the government should not be permitted

to rely upon the letter to Mr. Hart of June 19, 1975, because all

of the acts had taken place prior to that time.'' Even if there was

theless all of the acts relative to the phony NIMCO and SIMCO

proof that petitioner was a member of a conspiracy and that the

letter was sent to Mr. Hart on or about June 19, 1975, never-

contracts, according to the government's own proof, were com-

pleted before the commencement of the period of the statute of

limiations.

The Court of Appeals herein refused to consider petitioner’s

argument that the offense, if any, occurred in the preparation

of the phony NIMCO-SIMCO contracts prior to the limitations

of limitations may be extended by subsequent false statements

period. This petition presents the issue as to whether the statute

Pa a

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or perjurious testimony relating entirely to otherwise barred ac-

tivites. The decision below is not only in conflict with United

States v. Davis, supra, decided by the Fifth Circuit, but also

with the ‘‘policy of repose’’ of the statute of limitations which

must ‘be liberally interpreted in favor of repose’, as explained

by this Court in Toussie v. United States, supra.

For these reasons, we respectfully suggest that certiorari

should be granted as to this Question.

Il.

Plocker’s Fifth Amendment invocation

The government was on notice at the outset that Stanley

Plocker would refuse to testify on grounds of Fifth Amendment

privilege. Before the trial began, Plocker’s attorney filed a mo-

tion to quash the subpoena served upon him by the government

(A-21-25), specifically invoking his privilege against self-

incrimination (A-22). Plocker requested the Court to “‘make

any appropriate inquiry it deems necessary, including a hearing,

to assess the propriety of the claim’’ (A-24), obviously sug-

gesting that such hearing be conducted outside the presence of

the jury.'?

That Plocker had the right to invoke his privilege was clear

from the indictment which named him as an unindicted co-

conspirator (A-5, 10, 13, paragraphs 13 and 14, Overt Acts 8, 9,

and 12), from his counsel’s presentation to the Court, and from

the facts as understood by the government. The government

could, of course, have sought immunity for him and compelled

his testimony under the immunity statutes, 18 U.S.C. § 6001 et

seq. Without apparently making any effort to secure immunity

2 Although the Court Reporter did not record the discussion at the

~—

before calling Plocker as a witness, the prosecutor told the

Court at the bench, just before bringing him into the courtroom

in front of the jury, that ‘‘I understand when he is called to the

stand will refuse to testify on the grounds of self-incrimination”’

(Tr. 415, A-409). The prosecutor was reluctant to have the

witness invoke the privilege in front of the jury, but the Court,

over petitioner’s objection, ordered that the case be tried “‘in

front of the jury’’ (Tr. 416, A-410).

Thereupon Plocker took the witness stand and immediately

invoked the privilege on two occasions, but the Court refused to

allow the privilege and ordered him to answer the questions (Tr.

418, A-412). After a few more questions concerning his family

relationship to petitioner and his acquaintance with Aul, the

Court then curiously interrupted the prosecutor and asked:

‘*Are you going to ask him something that will involve the Fifth

Amendment?”’ (Tr. 420, A-414). When the prosecutor

answered affirmatively, the Court ordered the jury out (Tr. 421,

A-415).

A discussion then took place between the Court, the pro-

secutor and Plocker’s attorney as to the efficacy of the pro-

secutor’s promise not to prosecute the witness (Tr. 421-425,

A-415-419). The subject of a formal grant of immunity was

discussed, and the Court instructed the prosecutor to ‘‘go in

there and call the Attorney General of the United States”’ (Tr.

425-426, A-419-420), and the witness left the stand so that the

prosecutor could contact the Attorney General and proceed

under the immunity statutes (Tr. 426-429, A-420-423). At the

end of the day, the Court reminded the prosecutor to make his

call (Tr. 481, A-465). Mr. Plocker was not thereafter called as a

witness.

Under these circumstances, it was error to put Plocker on the

stand, have him invoke the Fifth Amendment in front of the

jury, and then dismiss him without further action. The impact

upon the jury was certainly prejudicial, especially when combined

with the erroneously admitted testimony of Mr. Becker. (See

Question III of this petition.)

This Court considered the propriety of a witness invoking his

_ Fifth Amendment privilege before the jury in Namet v. United

States, 373 U.S. 179 (1963), focusing on prosecutorial miscon-

duct and unfair inferences. In the instant case, the prosecutorial

misconduct'’ was obvious from calling the witness with certainty

that he would invoke his privilege, and at the same time sug-

gesting to the Court that authorization for immunity would be

secured. It never materialized!

The unfair inferences resulting from the assertion of the

privilege were exacerbated by the combination of factors that

— 19 —

The decision of the Sixth Circuit is in conflict with decisions

of many other Circuits, representative of which are the follow-

ing: Robbins v. Small, 371 F. 2d 793 (ist Cir. 1967), cert. den.

386 U.S. 1033, Zeigler v. Callahan, 659 F . 2d 254, 270-273 (ist

Cir. 1981), United States v. Maloney, 262 F. 2d 535 (2nd Cir.

1959),'* Rado v. Connecticut, 607 F. 2d 572, 581-582 (2nd Cir.

1979), San Fratello v. United States, 340 F. 2d 560 (Sth Cir.

1965), reh. den. 343 F. 2d 711, United States v. Prior, $46 F . 2d

1254, 1258 (Sth Cir. 1977), United States v. Tuley, 546 F. 2d

1264, fn. 7 (Sth Cir. 1977), United States v. Ritz, $48 F . 2d 510,

$15-521 (Sth Cir. 1977), United States v. King, 461 F. 2d 53,

56-57 (8th Cir. 1972), Sanders v. United States, 373 F. 2d 735

(9th Cir. 1967), United States v. Coppola, 479 F. 2d 1153,

1159-1161 (10th Cir. 1973), Melton v. United States, 398 F. 2d

321[5]} (10th Cir. 1968), United States v. Dingle, 546 F . 2d 1378,

1381-1384 (10th Cir. 1976), and Fletcher v. United States, 332 F .

2d 724 (D.C. Cir. 1964).'* For an illustrative state decision,

compare DeGesualdo v. People, 364 P. 2d 374, 376-378 (Colo.

1961). See also Annotation, ‘‘Prejudicial effect of prosecution’s

calling as witness, to extract claim of self-incrimination

privilege, one involved in offense with which accused is

charged.’’ 86 A.L.R. 2d 1443.

Because the procedure followed by the District Court in per-

mitting petitioner’s brother-in-law, an wunindicted co-

conspirator, to invoke his Fifth Amendment privilege before the

jury was violative of petitioner’s right to a fair trial, as well as

his right of confrontation and cross-examination, and because

'* Judge Hand's in Maloney is discussed at length in Namet

v. United States, U.S. at 186-190.

‘* Although the Sixth Circuit seemingly joined the other Circuits in

United States v. Vandetti, 623 F .. 2d 1144 (6th Cir. 1980), the decision

in the instant case appears to be a withdrawal from the mainstream of

decisions throughout the country.

ate

of the conflict of the proceedings below with decisions of this

Court and numerous Court of Appeals decisions, we respectfully

submit that certiorari should be granted as to this Question. The

error below was so clear that summazy reversal would be ap-

propriate.

Ill.

Becker Testimony Of Plocker Statements

Plocker was an alleged co-conspirator, named in the indict-

ment (A-5, 10, 13). In open court, he refused to testify.

Although the prosecutor indicated that he would obtain a grant

of immunity, he never did. (See Question II of this petition.)

Thus there was no testimony by Plocker or anyone else to

substantiate the allegation that he was a membx of a conspiracy

with petitioner.

Thereafter Plocker’s former business associate, David

Becker, was called as a witness (Tr. 451, A-435). When Becker

as an exception to the hearsay rule’’ (Tr. 460, A-444). The

Court recognized that there must be “‘some proof that this in-

dividual referred to was a part of the conspiracy”’ (Tr. 461,

—=

Becker was then permitted to speculate as to Plocker’s mean-

ing in written entries made by him (Tr. 462-464, 465-469,

A-446-448, 449-453) and to testify as to conversations with

Plocker concerning his alleged dealings with petitioner (Tr. 465,

469-473, 477-478, A-449, 453-457, 461-462).'* Becker testified,

however, that he had nothing to do with petitioner on the deal

(Tr. 507, A-491), so that obviously he could have no first-hand

knowledge of any alleged conspiracy of which Plocker and peti-

tioner were members.

Thus, without any proof that Plocker was a member of such a

conspiracy, Becker was permitted to testify that Plocker made

statements concerning alleged statements and conduct of peti-

tioner, and petitioner had no opportunity to cross-examine

Plocker concerning such alleged statements and conduct. Citing

United States v. Enright, 579 F. 2d 980 (6th Cir. 1978), and

United States v. Vinson, 606 F . 2d 149 (6th Cir. 1979), the Court

of Appeals herein approved the admissibility of the hearsay,

holding even that Vinson permits the trial Court to consider the

hearsay as evidence of the existence of the conspiracy.

The question of the admissibility of co-conspirator’s hearsay

statements has generated much litigation, and the various

Courts of Appeals have not been uniform in deciding the ap-

propriate procedure and quantum of proof. The need for

clarification of the conflict over interpretation of Rules 104 and

801(d)(2(E) of the Federal Rules of Evidence is discussed at

length in Weinstein’s Evidence, 4104(05] and 4801(d)(2)(E)[01).

~_ Fe

The consideration of the hearsay, without independent

evidence, to establish the admissibility of the hearsay, which the

Sixth Circuit herein has permitted on the authority of Vinson, is

discussed by Weinstein at { 104[05], pages 104-43 to 104-44. The

majority of the Courts of Appeals which have considered this

aspect of the issue are in conflict with the decision herein — see

fn. 20 and 21 at page 104-44 of Weinstein. See also the recent

case of United States v. Radeker, 664 F . 2d 242 (10th Cir. 1981).

We respectfully suggest that the confusion which exists

among the Circuits needs resolution by this Court, and

therefore certiorari should be granted as to this Question.

IV.

Attorney - ciieni relationship

On the day before trial commenced, government counsel gave

defense counsel access to many documents which came to the

government from the files of White and Case, Washington at-

torneys for LDC and Burnup & Sims. These were the same at-

torneys who had participated in all stages of the investigation,

preparation and presentation of the claim to Union Carbide.

Mr. Brower of White and Case was the lawyer who had led the

LDC discussions at the September 24, 1974 meeting at Oak

Ridge and had traveled to California in November with Aul and

Brewer to meet with Shulman.

The voluminous White and Case files of corresponden~- and

memoranda revealed substantial information which no doubt

led to sources of information for the prosecution. These files

became available as a result of a waiver by Burnup & Sims of its

attorney - client privilege (Exh. 40, A-734).

Mr. Canty, General Counsel for Burnup & Sims, testified that

he also waived the attorney - client privilege with respect to a St.

Louis attorney, Rodney Weiss, who had performed legal ser-

~~? pe

vices for LDC (Tr. 205, A-220). Mr. Weiss thereafter testified

about various meetings with LDC personnel, including peti-

tioner, and as to documents and correspondence as to which he

performed legal services (Exhs. 60-63, Tr. 394-402, A-762-772,

388-396).

The attempted waiver of the attorney - client privileges by

Burnup & Sims, without a similar waiver by petitioner, was im-

proper; the documents and other evidence emanating from the

attorneys, and all leads derived therefrom, should not have been

available to the prosecution. In Upjohn Company v. United

States, 449 U.S. 383 (1981), this Court not only protected the

corporate client but communications from its employees as well.

The Court of Appeals herein unduly restricted the decision in

Upjohn by suggesting that this Court did not discuss waiver of

the privilege, and that therefore a waiver by Burnup & Sims was

a waiver of petitioner’s privilege. Although waiver may not have

been discussed as such in Upjohn, we believe that its holding is

clear that petitioner’s communications were protected by the at-

torney - client privilege; who else but petitioner could waive his

privilege? As this Court stated: “‘. . . the privilege exists to pro-

tect not only the giving of professional advice to those who can

act on it but also the giving of information to the lawyer to

enable him to give sound and informed advice.”’

The holding of Upjohn is to abolish the limited ‘‘control

group”’ test, thereby covering communications by petitioner.

Based upon Upjohn, the government acted in violation of peti-

tioner’s rights when it relied upon the waiver by Burnup & Sims

alone. The Sixth Circuit decision is contrary to the opinion of

this Court, and for this reason, certiorari should be granted as

to this Question.

=

V.

Multiple conspiracies

If the government produced any evidence of petitioner’s con-

spiratorial misconduct, the proof showed more than one con-

spiracy. There was evidence with reference to the NIMCO and

SIMCO copper contracts (Exhs. 29-34, 43, A-698-703, 741)

which, according to the government theory, involved Aul, peti-

tioner and Shulman. As a second possible conspiracy, there was

evidence as to Lissner, Gerald, and Becker (Exhs. 51-59, 66-70,

73, 81-85, A-753-761, 775-779, 800, 808-812) which, according

to the government theory, involved Aul, petitioner and Plocker,

without connection to the NIMCO/SIMCO contracts. They

may have both related to copper from Union Carbide, but if

there was a conspiracy to conceal the payment of $122,000.00, it

had no relationship to the NIMCO/SIMCO contracts. Perhaps

there was a conspiracy to deprive LDC of $122,000.00 through

the Becker checks payable to Stuart, but that money had

nothing to do with fraudulent claims against Union Carbide or

the Department of Energy. Shulman had no involvement in any

such conspiracy,'’ and Plocker had no involvement in the NIM-

CO/SIMCO contracts conspiracy.

The evidence of Becker checks to Jones (Exhs. 74-78,

A-801-805) was unrelated to anything else, except possibly a

third conspiracy. A separate conspiracy suggested by the

evidence was that with reference to the kickbacks on lead by

Shulman in which there was no evidence of any Plocker involve-

ment (Exhs. 35-37, 45-47, 49-50, A-704-706, 743-745,

=

747-752).* Whether or not petitioner received any of this

money (Tr. 263-267, 299-300, A-278-282, 314-315), it had

nothing to do with the conspiracy alleged in the indictment and

was not a violation of the federal laws mentioned in the indict-

ment.

The subject of multiple conspiracies has been discussed at

length in many cases since Kotteakos v. United States, 328 U.S.

750 (1946). Even if the government’s evidence in the instant case

is to be believed absolutely and without qualification, there was

no single overall conspiracy proved, but at the most there were

numerous unrelated conspiracies. Under the Kotteakos doc-

trine, the case should not have been submitted to the jury.

The Sixth Circuit suggests that the jury found only one con-

—_ 9 =

Because the Court of Appeals failed to follow the clear man-

date of Kotteakos, we respectfully submit that certiorari should

be granted as to this Question.

CONCLUSION

For these reasons, it is respectiully submitted that this peti-

tion for a writ of certiorari should be granted.

Respectfully submitted,

IRL B. BARIS

(Counsel of Record)

611 Olive Street - Suite 2020

St. Louis, Missouri 63101

(314) 231-1312

Attorney for Petitioner

—_

APPENDIX A

No. 80-5429

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America,

Plaintiff-Appellee,

v.

Melford Berns,

Defendant-Appellant.

ORDER

(Filed January 4, 1982)

Before: WEICK, ENGEL and MERRITT, Circuit Judges

The appellant in this case was found guilty by a jury decision

of four counts of conspiracy to defraud the United States and

presentation of false claims, accompanied by false statements,

to a federal agency in violation of 18 U.S.C. §§ 2, 287, 371, and

1001. He appeals his conviction on several grounds, none of

which compel reversal.

The scheme in which Appellant Berns was found to have par-

ticipated involved the manufacture and backdating of resale

contracts. By transferring legitimate resale contracts and

presenting falsified contracts in their siead, Line Dismantling

Corp. (appellant was vice-president; hereinafter ‘‘LDC’") could

retrieve excessive damages from Union Carbide Corp., a divi-

sion of the Department of Energy which had breached their

contract to supply LDC with scrap cable.

Appellant first argues that the prosecution is barred by the

Statute of Limitations. The government introduced a letter to

Contracting Officer R. J. Hart, manager of the Department of

hia

Energy's Oak Ridge operations, into evidence. The letter was

sent within the five-year limit. As the first formal claim

presented to the official dispute-settling agent for the federal

agency, the letter was an overt act in furtherance of the con-

spiracy and meets the requirements of Gruenwald v. U.S., 353

U.S. 391 (1957).

The second objection raised by Berns is to the introduction of

the testimony of Stanley Plocker, an unindicted co-conspirator

who invoked his Fifth Amendment priviiege prior to the trial

and while on the stand. Appellant misapplies »ur holding in

U.S. v. Vandetti, 623 F.2d 1144 (6th Cir. 1980) to argue error in

allowing Plocker’s testimony. In Vandetti, this Court ordered a

new trial after a trial judge allowed a prosecutor to put con-

victed codefendants on the stand, knowing they would invoke

their Fifth Amendment privileges, and further admitted their

testimony as to those convictions. The opinion emphasizes the

fact-specific criteria which must be applied in each case to

evaluate the admissibility of the testimony and the prejudice

suffered by the defendant. The defendant in Vandetti was pre-

judiced because the testimony of his codefendants’ convictions

was for an impermissible purpose, proof of the elements of the

crime, rather than the permissible purpose of impeachment.

The judge must weigh the probative value of the testimony of-

fered in each case against its potential prejudice and determine

if there are alternative methods for presentation of that

evidence. In the case before us, the testimony of Plocker was

essential to proof of the conspiracy. The questions asked were

general, admissible questions dealing with the business re ion-

ship between Plocker and the appellant. Plocker also testified

that he was Berns’ brother-in-law, a fact which could well have

aided the jury in their evaluation of the credibility of various

witnesses. Therefore, we find no error in calling Plocker to the

witness stand and admitting his testimony.

Appellant's third objection is against the admission of hear-

say statements under the co-conspirator hearsay exception.

—_<

David Becker was president of the firm which received the

legitimate resale contracts from LDC in exchange for a $122,000

commission. The transfer was arranged by Plocker. The crucial

feature of the transfer was that Berns asked Plocker to make

out the commission checks in the name of M. T. Stuart. Becker

testified as to Plocker’s explanation to him of the deal and the

manner of the commission checks.

This Court held in U.S. v. Enright, 579 F.2d 980 (6th Cir.

1978) that hearsay statements may be admitted under the co-

conspirator exception (Fed. R. Evid. 801(d)(2(E)) if the govern-

ment shows by a preponderance of the evidence that a con-

spiracy existed, the defendant against whom the hearsay is of-

fered was a member of the conspiracy, and the statement was

made in furtherance of the conspiracy. Further, that decision is

within the sole province of the trial judge. In U.S. v. Vinson,

606 F.2d 149, 153 (6th Cir. 1979), this Court held that the

statements themselves may be evidence of a conspiracy to be

considered by the trial judge in deciding the preliminary ques-

tion of admissibility. The testimony of the transfer included

Berns’ instructions that the commissions should be made out in

a manner which later evidence showed to be part of the con-

spiracy. We believe Judge Taylor correctly admitted the

testimony under the dictates of Vinson.

Appellant relies on the recent Supreme Court case of Upjohn

v. U.S., _._ U.S. —__., 101 S.Ct. 677 (1981) for his argument

that his attorney-client privilege was improperly waived. He at-

tempts to stretch the proposition of that case, that an employee

need not be a member of a corporate ‘‘control group’’ to enjoy

records of meetings between the corporations and the Depart-

ment of Energy and Union Carbide officials was an unlawful

waiver of Berns’ attorney-client privilege. Nothing in Upjohn

o~ £4 «x

remotely stands for the proposition that a corporation cannot

offer documents relating to meetings where its subsidiary was

also present. Waiver is not discussed at all in the case. Nor has

Appellant directed this Court to any other cases which make

such an argument. Even if such a principle could be constructed

out of thin air, Appellant has not demonstrated the prejudice

suffered by the waiver.

Fifth, Berns claims that the prosecution proved no fewer than

three conspiracies, each involving discrete sets of individuals

and transactions. He requests reversal on the grounds that proof

of multiple conspiracies cannot sustain a conviction. The pro-

secution argued at trial that several transactions — falsification

of contracts, transfer of legitimate contracts, fraudulent

downgrading of minerals, checks made out to fictitious in-

dividuals and cashed by the Appellant — were all part of a cen-

tral scheme to defraud the federal government. By its guilty ver-

dict on all four counts charged, the jury indicated they accepted

the prosecution’s version of the various transactions. Each of

the proofs revolve around a central theme of fraudulently col-

lecting the maximum amount of damages from a federal agency.

Nor has Appellant shown prejudice to any substantial right by

the admission of the several transactions. U.S. v. Sutton, 642

F.2d 1001, 1038 (6th Cir. 1980).

Finally, Berns claims his conviction must be overturned for

lack of sufficient evidence. Even if the Court is not to accept his

first five arguments, he contends that the prosecution did not

produce sufficient evidence of his signature on the letter to

Hart. Although no direct proof was offered that the signature

was Berns’, the record is replete with evidence (such as Berns’

affidavit that he signed the fraudulent contracts enclosed with

the letter) that Berns signed the letter. The letter itself also con-

tained information which only Berns would have reason to

know. In determining the sufficiency of the evidence to with-

stand a judgment of acquittal, the evidence and all reasonable

oni on

inferences that may be drawn therefrom must be viewed in the

light most favorable to the government. U.S. v. Smith, 399 F.2d

896 (6th Cir. 1968). We find ample evidence on the record to

support the jury’s decision.

Accordingly, the conviction is affirmed.

ENTERED BY ORDER OF THE

COURT

/s/ John P. Hehman

Clerk

otha

APPENDIX B

No. 80-5429

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America,

Plaintiff-Appellee

(Filed April 7, 1982)

Before: WEICK, ENGEL and MERRITT, Circuit Judges

The majority of the court having not voted in favor of an en

Rene echeming, Ge gemiien Sor saisaring Ras Coen eetteesd ¢0

the hearing panel for disposition.

Upon consideration, it is ORDERED that the petition for

rehearing be and hereby is denied.

ENTERED BY ORDER OF THE

COURT

/s/ John P. Hehman

Clerk

—\ pn

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

CR. 3-80-36

United States of America

v.

Melford Berns

ORDER

(Filed November 19, 1980)

For the reasons stated ia a memorandum opinion this day

passed to the Clerk for filing, it is ORDERED that defendant’s

motion for judgment of acquittal and motion for a new trial be,

and the same hereby are, denied.

Enter:

/s/ Robert Taylor

United Staces District Judge

Defendant has renewed his motion for judgment of acquittal

or motion for new trial made at the close of evidence and urged

in support thereof twenty-one separate grounds.

Grounds | through 5 relate to the evidence. In the opinion of

the Court the evidence creaied issues of fact for the determina-

tion of the jury and the verdict of the jury is supported by

substantial evidence.

oo ia

Grounds 6 and 7 complain of the rulings of the Court on

questions of evidence. In the opinion of the Court it did not err

in its rulings on questions of evidence.

Grounds 8 and 9 complain of the action of the Court in send-

ing the exhibits which were received as evidence to the jury and

in refusing to give instructions offered by defendant. The Court

followed the usual practice in sending these exhibits to the jury

and in its opinion did not err in so doing. The instructions given

by the Court, in its opinion, were proper.

Ground 10 complains of the action of the Court in sending

the indictment to the jury which differed from the indictment as

read in the Court’s instructions. The Court explained to the jury

in the charge that Aul was not before the Court.

Grounds 11 and 12 insist that the Court erred in submitting

the case to the jury because the Government failed to prove a

violation of federal law and the applicable statute of limitations.

The proof showed that at least one of the overt acts charged in

the indictment occurred within the five year period. In the opin-

ion of the Court it did not err in submitting the case to the jury.

Ground 13 complains of the action of the Court in refusing to

require the Government to elect on which count the cause

should be submitted to the jury. There was evidence to submit

to the jury on all counts.

Ground 14 asserts that there were several different con-

spiracies. The evidence showed that there was one conspiracy,

possibly consisting of many interlocking events.

In Ground 15, it is asserted that the Court erred in permitting

evidence concerning Lissner Metals, Gerald Metals and Becker

Iron & Metal Company, because it had no relationship to the

alleged false claims or the charges contained in the indictment.

We do not agree.

~~.

In Ground 16 it is asserted that the Court erred in permitting

evidence concerning the activities of and statements by Gerald

Aul, because there was no independent evidence of a conspiracy

between Mr. Aul and defendant Berns. We do not agree.

In Ground 17 it is asserted that the Court erred in permitting

evidence of activities of Stanley Plocker, because there was no

independent evidence of a conspiracy between Mr. Plocker and

defendant Berns. We do not agree.

In Ground 18 it is asserted that the Court erred in permitting

witness Shulman to testify concerning alleged downgrading of

lead shipments and kickbacks pertaining thereto, because it was

not alleged in the indictment and had no relationship to the

crimes charged in the indictment. The evidence received ap-

peared to be a part of the same plan by the conspirators and the

evidence was properly received.

In Ground 19 it is asserted that the Court erred in permitting

witness Plocker to invoke his Fifth Amendment privileges in

front of the jury. The evidence did not indicate that the At-

torney General called Plocker for the purpose of wrongfully in-

fluencing the jury. While Plocker was on the witness stand, the

case was recessed in order to give the District Attorney an op-

portunity to contact the Attorney General of the United States

in order to get permission to grant Plocker immunity. We did

not receive any information from the District Attorney after

Plocker left the stand but have been advised that the Attorney

General did not act on the District Attorney’s request in time

for the District Attorney to place Plocker back on the witness

stand. In the opinion of the Court, it was not error for the

District Attorney to call Plocker to the witness stand under the

circumstances shown in the record. See United States v. Vandetti,

623 F.2d 1144 (6th Cir. 1980).

Grounds 20 and 21 complain of the action of the Court in

permitting witness Becker to identify documents pertaining to

— A-10 —

Jones and Stuart checks and permitting Becker to testify concern-

ing statements by Stanley Plocker which were not connected by

other evidence with any alleged conspiracy charged in the indict-

ment, and in refusing to strike such testimony after the Govern-

ment failed to offer any evidence of the involvement in any con-

spiracy. In the opinion of the Court there was evidence in the

record showing a conspiracy involving the defendant and

Plocker and this evidence, in the opinion of the Court, was

competent.

For the reasons indicated, it is ORDERED that the motion

for judgment of acquittal and motion for a new trial be, and the

same hereby are, denied.

Order Accordingly.

/s/ Robert Taylor

United States District Judge

—All —

APPENDIX D

Constitution of United States

Amendment V

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

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

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

law; nor shall private property be taken for public use, without

just compensation.

APPENDIX E

Title 18, United States Code

§ 371. Conspiracy to commit offense or to defraud United

States

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or

any agency thereof in any manner or for any purpose, and one

or more of such persons do any act to effect the object of the

conspiracy, each shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of which is the ob-

ject of the conspiracy, is a misdemeaner only, the punishment

for such conspiracy shall not exceed the maximum punishment

provided for such misdemeanor.

— A-12 —

§ 2. Principals

(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its com-

mission, is punishable as a principal.

(b) Whoever 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.

Whoever makes or presents to any person or officer in the

civil, military, or naval service of the United States, or to any

department or agency thereof, any claim upon or against the

United States, or any department or agency thereof, knowing

such claim to be false, fictitious, or fraudulent, shall be fined

not more than $10,000 or imprisoned not more than five years,

or both.

§ 1001. Statements or entries generally

Whoever, in any matter within the jurisdiction of any depart-

ment or agency of the United States knowingly and willfully

falsifies, conceals or covers up by any trick, scheme, or device a

material fact, or makes any false, fictitious or fraudulent

statements or representations, or makes or uses any ‘alse writing

or document knowing the same to contain any false, fictitious

or fraudulent statement or entry, shall be fined not more than

$10,000 or imprisoned not more than five years, or both.

§ 3282. Offenses not capital

Except as otherwise expressly provided by law, no person

shall be prosecuted, tried, or punished for any offense, not

capital, unless the indictment is found or the information is in-

stituted within five years next after such offense shall have been

committed.

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APPENDIX F

Federal Rules of Evidence

Rule 104. Preliminary Questions

(a) Questions of admissibility generally. Preliminary ques-

tions concerning the qualification of a person to be a witness,

the existence of a privilege, or the admissibility of evidence shall

be determined by the court, subject to the provisions of subdivi-

sion (b). In making its determination it is not bound by the rules

of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of

evidence depends upon the fulfillment of a condition of fact,

the court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of the

condition.

Rule 801. Definitions

The following definitions apply under this article:

(d) Statements which are not hearsay. A statement is not

hearsay if—

(2) Admission by party-opponent. The statement is offered

against a party and is (A) his own statement, in either his in-

dividual or a representative capacity or (B) a statement of which

he has manifested his adoption or belief in its truth, or (C) a

statement by a person authorized by him to make a statement

concerning the subject, or (D) a statement by his agent or ser-

vant concerning a matter within the scope of his agency or

employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course

and in furtherance of the conspiracy.