Appendix — Elrod v. Massarella

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTE CIRCUIT

No. 81-1571

Unrrep States or America ex rel. Benzgpetto J.

MassaRELLa,

Petitioner-A ppellant,

v.

Rronanb J. Exrop, Sheriff of Cook County, Illinois and

Tyrone Fanner, Attorney General of Illinois,

Respondents-A ppellees.

Appeal from the Unite States District Court for the

Northern District of Illinois.

No. 81 C 1752—Nicholas J. Bua, Judge.

Argued January 15, 1982—Decided July 14, 1982

Before Cupany, Circuit Judge, Prox“ and \amcuna,

* Honorable John W. Peck, Senior Circuit Judge for the Sixth

Circuit Court of Appeals, sitting by designation.

App. 2

Senior Circuit Judges.

Peck, Senior Circuit Judge. Massarella appeals from

the denial of his petition for a writ of habeas corpus. He

raises numerous issues on appeal, but only one is of mo-

ment. That issue is whether Massarella’s conviction of

the felony of perjury in Illinois’ courts violated the ex

post facto clause of the Federal Constitution. U.S. Const.

art. I §10, el. 1.

The facts of Massarella’s case are cited in detail in

People v. Massarella, 400 N. E. 2d 436 (III. App. 1979)

cert. denied, Massarella v. Illinois, 449 U.S. 1077 (1981),

and will be stated only briefly here. In 1973 an Illinois

jury found Massarella guilty of conspiracy, theft, and

one count of perjury. He was sentenced to five years’

probation, including two years’ periodic imprisonment, for

the theft, and one to three years’ imprisonment for the

perjury. The sentences were to run concurrently. Massa-

rella was also fined, but the present record is not clear

on the total amount, nor on the off.uses for which fines

were imposed.’

The history of Massarella’s perjury conviction is a con-

voluted one. Massarella was indicted on June 8, 1973, for

statements made around August 30, 1971. At the time of

the commission of the perjury, the offense was an ‘‘indict-

able misdemeanor,’’ punishable as either a misdemeanor

People v. Massarella, 368 N. E. 2d 507, 508 (Ill. App. 1977)

reports $10,000 fines for both the theft and perjury convictions.

The Illinois Supreme Court, reversing, noted only one $10,000 fine,

fine imposed on Massarella individually. See 400 N.E. 2d 436,

441 (Ill. App. 1979).

App. 3

or a felony. See III. Rev. Stat. ch. 38, f 32-2 (1969).? At

the time of Massarella’s indictment, the offense was a

‘*pure’’ felony. See III. Rev. Stat. ch. 38, § 32-2 (1973).

The change was effected by the Illinois Unified Code f

Corrections, which, Massarella argues, zie extended the

limitation period for prosecution »f perjury from eighteen

months to three years. The extension took effect in Janu-

ary of 1973, approximately one month before the former

eighteen month statute would have barred Massarella's

perjury prosecution. (Massarella was not indicted until

about twenty-two months after the perjury was commit-

ted.) In this appeal, Massarella argues that, as applied

to his case, both the extension of the limitations period

and the reclassification of the perjury from ‘‘indictable

misdemeanor to felony violate the ex post facto clause

of the Constitution.

Massarella’s objection to the enlargement of the lim-

itation period has no merit. Extending a limitation period

before a given prosecution is barred does not violate the

ex post facto clause. Clements v. United States, 266 F.2d

397, 399 (9th Cir.), cert. denied, 359 U.S. 985 (1959). As

types of criminal conduct, as to which conduct the legislature

appears to wish to give the State and/or trial judge a broad

discretion in respect of penalty, ranging from the felony ven-

alties of imprisonment in the State penitentiary for more than

one year and/or a fine, to the misdemeanor penalties of im-

prisonment in a correctional institution other than the peni-

tentiary for not more than one year and/or a lessor [sic] fine.

People v. Houston, 315 N.E.2d 192, 195 (Ill. App. 1974)

denied, Houston v. Illinois 420 U.S. 936 (1975).

App. 4

the Supreme Court recently noted, ‘‘no ex post facto vio-

lation occurs if the change effected is merely procedural,

and does ‘not increase the punishment nor change the

ingredients of the offense or the ultimate facts necessary

to establish guilt.’’’ Weaver Graham, 450 U.S. 24, 29

n.12 (1981), quoting Hopt v. Utah, 110 US. 574, 590 (1884).

The extension of the statute of limitations in this case was

just such a merely procedural’’ change.

The reclassification of the offense is more troublesome.

The state argues that the reclassification was merely

nominal, since Massarella, as the new Unified Code re-

quired, was permitted to choose between being sentenced

under the Unified Code or under the law as it stood at

the commission of the perjury. Massarella rationally chose

to be sentenced under the later law, which set a higher

fine but a lower maximum prison sentence for perjury.’

He now contends that the reclassification of the offense,

apart from direct changes in possible sentences, created

a host of adverse collateral consequences.“ that fall on a

convicted felon. Whether this retrospective reclassification

worsens the conditions imposed under the former state

law is a federal question. See Weaver v. Graham, supra,

450 U.S. at 33; Lindsey v. Washington, 301 U.S. 397, 400

(1937). In this case, however, it is a question involving

numerous and subtle issues of state law.

It is not at all clear that Illinois would not have con-

sidered Massarella a felon had he been convicted of per-

jury in 1971. In 1971 in Illinois, perjury was punishable

The state does not argue that this choice constituted a waiver

of any of Massarella’s rights under the ex post facto clause.

These consequences include: ineligibility for state elective office,

In. Rev. Stat. ch. 38, f 1005-5-5 (1973); longer curtailment of

voting rights, Ill. Const. art. III, § 2 (1970); and disqualification

from holding numerous licenses.

1

App. 5

with a penitentiary sentence. Ill. Rev. Stat. ch. 38, § 32-2

(1969). Under a literal reading of the statutes then in

force, the offense was thus a felony. Id. § 2-7. On this

appeal, however, the state argues that Massarella now

stands convicted of a misdemeanor, apparently conced-

ing that the offense was so classed under former law, at

least for the purpose of determining the collateral conse-

quences of a perjury conviction.

We must, however, reject the state’s argument that, by

operation of a state statutory provision concerning the

application of the Uniform Code of Corrections,’ Mas-

sarella does not now stand convicted of a felony. For

determining the period of limitation on Massarella’s per-

jury prosecution, the state unquestionably classed the of-

fense a felony. See III. Rev. Stat. ch. 38, § 3-5; id. § 32-2

(1973). Yet after conviction, the state argues a different

classification of the offense from statutes dealing only with

punishment of the offense. In short, the state has pointed

to nothing to show that Massarella will not suffer the

collateral consequences of which he complains. We hold,

therefore, that Massarella’s conviction of the retroactively

reclassified offense of perjury violated the ex post facto

clause. /

The matter of remedies is a difficult one in this case.

Massarella seeks an unconditional writ that would have

the effect of vacating his perjury conviction. The Su-

preme Court, however, has noted that It Ihe proper re-

lief upon a conclusion that a state prisoner is being treated

Ill. Rev. Stat. ch. 38, § 1008-2-4 (1973), provides that sentences

under the Uniform Code apply “if they are less than under the prior

law upon which the prosecution was commenced.” The provisions

of the Code are severable, should individual ones be held invalid.

Id. § 1008-4-1.

App. 6

under an ex post facto law is to remand to permit the

state court to apply, if possible, the law in place when his

crime occurred. Weaver v. Graham, supra, 450 U.S. at

36-37 n.22. (Citing Lindsey v. Washington, supra, 301 US.

at 402.) In so remanding, we are confident that there is

little need to point out the constitutional pitfalls of im-

posing on Massarella any more onerous sentence than he

originally received.

Before remanding to the state court, however, the dis-

trict court should resolve the fact question whether Mas-

sarella was fined $10,000 for his perjury conviction. If so,

this fine would, under the principles noted above, be an

ex post facto violation.

We have fully considered Massarella’s other arguments

and hold that none establishes errors for which habeas

corpus relief is appropriate. The judgment of the district

court is reversed, and the case remanded for action not

inconsistent with this opinion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 23, 1982.

Before

Hon. Richard D. Cudahy, Circuit Judge

Hon. John W. Peck, Senior Circuit Judge*

Hon. Thomas E. Fairchild, Senior Circuit Judge

Untrep States or America ex rel.

Bewevetto J. Massare.la,

No, 81-1571 vs.

Ricuagp J. Exrzop, Sheriff of Cook Count,, Illinois

and Tyrone Fanner, Attorney General of Illinois,

Respondents-A ppellees.

Petitioner -Appellant,

Appeal from the United States District Court for the .

Northern District of Illinois, Eastern Division.

No. 81 C 1752—Nicholas J. Bua, Judge.

App. 8

ORDER

This case is before the court on a petition for rehearing

and suggestion for rehearing in banc filed by the Respon-

dent-Appellees and by the Petitioner-Appellant.

On copsideration of the petitions, all members of the

original panel having voted to deny a rehearing, and no

judge in regular active service having requested a vote

thereon, accordingly,

Ir Is Onperep that the aforesaid petitions for rehearing

be and the same are hereby, Dewzep.

“oe

App. 9

APPENDIX o

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Tun Unrrep Srares or America

ex rel. BAN NETTO J. MSA,

No. 81 C 1752 vs.

Petitioner,

Ricuarp J. Exrop, Sheriff of Cook County, et al.,

Respondents.

Before the Honorable

Nicholas J. Bua, Judge

United States District Court

ORDER

Presently before the court is Massarella’s petition for

a writ of habeas corpus. 28 U.S.C. § 2254. At a hearing

on respondents’ motion to vacate this court’s April 1,

1980 Order setting bond, the parties agreed to submit

the questions raised by the petition on the basis of the

facts contained in their respective memoranda of law. The

petition presents four grounds for relief.

The first issue raised by the petition is whether the

ap; ation of Ill. Rev. Stat. ch. 38 § 32-2 (1973) to peti-

tioner violated the constitutional ban on state ex post facto

laws. U.S. Const., Art. 1, § 10, cl. 1.

ae

2

*

’ *

App. 10

The petitioner was convicted of perjury for statements

made between August 26, 1971 and August 30, 1971. He

was indicted for violating III. Rev. Stat. ch. 38 f 32-2.

Under the 1971 version of the statute, in effect at the

time the crime was committed, the petitioner could have

been imprisoned in another penitentiary. Illinois courts

had construed the statute as a misdemeanor because of

this provision. Cf. People v. Novotny, 41 III. 2d 401, 244

N.E. 2d 182 (1968). The indictment was returned on June

8, 1973, beyond the 18 month limitation period applicable

to a misdemeanor at the time the crime was committed.

IIl. Rev. Stat. ch. 38 § 3-5. On January 1, 1973, one month

before the limitations period for petitioner’s crime would

have expired, Illinois’ Unified Code of Corrections took

effect. The Unified Code classified perjury as a Class 3

felony with a three year statute of limitations. Ill. Rev.

Stat. ch. 38 §§ 32-2, 3-5 (1973). The application of the

new statute of limitations does not violate the ex post facto

clause. Clements v. United States, 266 F.2d 397, 398 (9th

Cir. 1959), cert. denied, 359 U.S. 985 (1959); Roberts v.

United States, 239 F.2d 467 (9th Cir. 1957); Note, Ex Post

Facto Limitations on Legislative Power, 73 Mich. L.Rev.

1491 at 1512 n.78 (1975).

The petitioner nevertheless argues that the legislative

reclassification of perjury from a misdemeanor to a felony

violates the ex post facto clause. The petitioner maintains

that the state trial and appellate courts erroneously fo-

cused on the actual sentence imposed on the petitioner

rather than the legislative aggravation of the offense

caused by reclassifying perjury as a felony. See Calder v.

Bull, 2 U.S. 386, 390 (1798) (separate opinion of Chase, J.).

What the petitioner conveniently fails to point out is

that the petitioner, with the advice of counsel, chose to

be sentenced in accordance with the 1973 version of the

2

App. 11

perjury statute. The petitioner correctly quotes Lindsey

v. Washington, 301 U.S. 397 at 401 (1937) for the propo-

sition that

the ex post facto clause looks to the standard of pun-

ishment prescribed by a statute rather than to the

sentence actually imposed . . . Land!] forbids the ap-

plication of any new punitive measure to a crime al-

ready consummated, to the detriment or material dis-

advantage of the wrongdoer. (emphasis added).

However, the petitioner fails to focus on the fact that the

import of the ban is the disadvantage imposed upon a

wrongdoer without prior notice. The petition conspicu-

ously avoids discussion of the fact that the petitioner had

the option of being sentenced under the prior version of

the statute. People v. Liebling, 36 III. App. 3d 1973 (1976).

It appears that the petitioner must have considered him-

self benefited by the sentencing regime of the new act or

he presumably would have chosen the old one. The re-

spondents’ brief in opposition to the petition for a writ

of certiorari filed in the United States Supreme Court

indicates that the petitioner in fact was given the choice

as to which version of the statute he wished to be sen-

tenced under. Thus, Weaver v. Graham, 49 U.S.L.W. 4155

(February 24, 1981) does not support the petitioner’s con-

tention, and this court concludes that his constitutional

rights were not violated by the application of the 1973

version of the perjury statute to the petitioner’s crime.

The petitioner’s second claim is that he was deprived

of his constitutional right to present a defense by the trial

court’s exclusion of certain evidence at trial. See Cham-

bers v. Mississippi, 410 US. 284 (1973). The petitioner

attempted to introduce evidence through Milton Lambert

as an expert witness qualified by 40 years experience as

App. 12

a wholesale distributor of motor fuel products. The de-

fense attempted to establish the amount of fuel that the

petitioner’s business had sold during 1971 by hypothetical

questions propounded to Lambert as an expert. The trial

court sustained objections to Lambert’s testimony based,

among other things, upon his lack of personal knowledge,

and becuse hypothetical questions propounded to him

were based upon facts not in evidence. Based on the facts

contained in the respondents’ brief in opposition to the

petition for a writ of certiorari filed in the United States

Supreme Court, the court finds no deprivation of the peti-

tioner’s right to present a defense. The exclusion of Lam-

bert’s testimony simply did not materially affect peti-

tioner’s ability to present a defense. Cf. Chambers v. Mis-

sissippi, 410 U.S. 284 at 302 (1973).

The petitioner also claims that the trial court’s exclu-

sion of evidence pertaining to his conversations with his

accountant rises to the level of a constitutional depriva-

tion. According to respondents’ brief referred to above,

the trial judge sustained a hearsay objection to evidence

of the petitioner’s statement to his accountant to the ef-

fect that the petitioner thought his gross profit margins

on motor fuel sales should have been higher in 1969 and

1970. The testimony was apparently offered to show Mas-

sarella lacked the intent to commit a theft of state motor

fuel taxes. This hearsay exclusion does not constitute a

constitutional deprivation under Chambers, supra. It cer-

tainly cannot be said that the exclusion of such ambiguous

evidence was in any sense critical to petitioner’s defense.

The third prong of Massarella’s claim that he was de-

prived of due process at trial is based on the contention

that the application of the best evidence rule to sustain

the state’s objection to the admission of certain docu-

App. 13

mentary evidence deprived him of crucial exculpatory evi-

dence. In light of the facts contained in the appendix to

respondents’ brief at p. 6a, this court believes it frivolous

to assert that this evidence was either properly admissible

in evidence or crucial to the defense.

The petitioner also maintains that his sixth amendment

right to confront the witnesses against him was improperly

abridged by the restrictions the trial judge placed upon

his counsel’s cross-examination of several prosecution wit-

nesses and by its admission of prior testimony given in

a civil suit by John Gavin, Sr.

In neither instance does the petitioner’s brief allege a

single fact from which this court can conclude that his

constitutional rights have been violated. The state’s brief

indicates that the cross-examination of the four witnesses

about which petitioner complains fills over two hundred

pages of transcript. Absolutely no indication of an abuse

of discretion has been presented by the petitioner in al-

leging that his right to confront and cross-examine the

prosecutions’ witnesses was unconstitutionally abridged.

Petitioner’s contention that the introduction of prior

testimony of a deceased witness deprived him of his rights

is without foundation. From the briefs of the parties, it

is clear to this court that such testimony was properly ad-

mitted and did not deprive petitioner of his constitutional

right to confront the witnesses against him. See Dutton v.

Evans, 400 U.S. 7+.

Finally, we reject as unsupported by any evidence or

authority the petitioner’s contention that he was deprived

of auy rights by the manner in which the Illinois Appellate

Court disposed of these claims on appeal. See People v.

Massarella, 80 III. App. 3d 552, 400 N. E. 436 (1979), cert.

denied, 49 U.S. L. W. 3493 (1981).

App. 14

Nothing in the petition supports the claim that the

cumulative effect of the evidentiary rulings complained of

or the trial judge’s supervision of the scope of petitioner’s

cross-examination of certain prosecution witnesses affected

the fundamental fairness of petitioner’s trial.

Therefore, the court’s order of April 1, 1981 setting bail

is vacated, and the petition for a writ of habeas corpus

is Dewrep.

Ir Is So Onpenep.

Nicholas J. Bua

Judge, United States District Court

Darep: April 7, 1981