Petition — Falco v. United States

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Supreme Court of the United States

October Term, 1982

MARIE FALCO,

Petitioner,

-against-

UNITED STATES OF AMERICA

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PAUL O’DWYER KEARA M. O’DEMPSEY

99 Wall Street 275 Madison Avenue

New York, N.Y. 10005 New York, N.Y. 10016

(212) 269-3939 (212) 686-2265

Attorney of Record Of Counsel

(13211)

QUESTIONS PRESENTED

May a person accused of perjury or

other false statement offense be

convicted consonant with the Consti-

tution when the jury has rendered no

decision on an essential element of

the offense, i.e., materiality?

May a person accused of perjury or

other false statement offense be

convicted consonant with the Consti-

tution without a finding beyond a

reasonable doubt of an essential

element of the offense, i.e., materi-

ality?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES -

OPINIONS BELOW an

JURISDICTION =

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED a

STATEMENT OF THE CASE 1

REASONS FOR GRANTING THE WRIT

Virtually All the Court's

Rule 17 Criteria for Issuance

of the Writ Are Met With

Respect to the Issues Peti-

tioner Raises. 4

A. Petitioner's Case, And the

Growing Number of Cases Like

It, Present Issues Related

to Federal Principles of

Overriding Importance: A

Criminal Defendant's Right

to a Trial by Jury and Her

Cc.

iii

Page

Right to a Finding of

Guilt Beyond a Reasonable

Doubt. 5

The Circuit Courts, District

Courts and State Courts Pre-

sently Resolve the Competing

Claims Between Modern Consti-

tutional Law and the Archaic

Materiality Rule Differently. 7

1. A Conflict Exists Among the

the Federal Courts of Ap-

peals With Respect to False

Statement Offenses. 7

2. The Conflict Exists Not

Only Among the Circuit

Courts, But Between District

Courts Within the Same Cir-

cuit and Between Different

Panels of the Same Circuit. 12

3. The Massachusetts State

Court of Last Resort Has

Decided This Issue Contrary

to the Majority Rule in the

Federal Courts of Appeals. 15

A Substantial Federal Question

Exists In Part Due to the Sheer

Number of Offenses for Which

Materiality is an Essential

Element. 17

The Supreme Court Has Never

Directly Passed on the Materi-

ality Question; The Majority

Rule Rests on a 1929 Dictum

Which Cannot Be Justified

Either Logically of Consti-

tutionally. 20

Page

II. Defendants in Perjury and

Other False Statement Prose-

cutions Are Denied Plenary

Jury Trials Within the Meaning

of the Constitution in the

Majority of the Federal Courts

of Appeals. 24

III. The Second Circuit Rule Con-

cerning Materiality Violates

the Winship Principle That

the Reasonable Doubt Standard

Must Be Applied to Every

Element of a Criminal Offense.

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

Cases Page

Baldwin v. New York,

399 U.S. 68 (1970) 27,30

Bloom v. Illinois,

391 U.S. 194 (1968) 29, 31,37

Jackson v. Virginia,

443 U.S. 307 (1979) 3,27

Mullaney v. Wilbur,

421 U.S. 684 (1975) 25,33

Patterson v. New York,

432 U.S. 197 (1977) 34,36

Sinclair v. United States,

279 U.S. 263 (1929) 21

In Re Winship,

397 U.S. 358 (1970) 25,33,35

Agquionics Acceptance

Corporation v. Kollar,

536 F.2d 712 (6th Cir. 1976) 22

Radiation Dynamics, Inc.

Vv. ot TF 464 F.2d

876 (2d Cir. 1972) 22

United States v. Adler,

623 F.2d 1287

(8th Cir. 1980). 14

Cases Page

United States v. Bell,

(5th Cir. 1980) 4

United States v. Berardi,

629 F.2d 723 (2d Cir.),

cert. denied, 449 U.S.

995 (1980) 9,24,34

United States v. Cunningham,

Cr. 458 (CLB),

(Memorandum and Order of

May 19, 1982) 15

United States v. Demopoulos,

506 F.2d 1171 (7th Cir.),

cert. denied, 420 U.S. 9

991 (1

United States v. Giacalone,

587 F.2d 5 (6th Cir. 1978),

cert. denied, 442 U.S.

940 (1979) )

United States v. Halbert,

640 F.2d 1000

(9th Cir. 1980) 8,10,19

United States v. Johnson,

F.Supp. 273 (W.D. Mo.

1968), aff'd, 410 F.2d

38 (8th Cir.), cert. denied,

396 U.S. 822 (1969). —+-9,10,13

United States v. Kehoe, 526

F.2d 65 (ist Cir. 1976) 9

vii

Cases

United States v. Kostoff, 585

F.2d 378 (9th Cir. 1978)

United States v. Lichtenstein,

610 F.2 272 th Cir.

1980)

United States v. Paolicelli,

505 F.2d 971 (4th Cir.

1974)

United States v. Phillips, 540

F.2d 319 (8th Cir.), cert.

denied, 429 U.S. 1000 (1976)

United States v. Raineri, 670

F.2d 702 (7th Cir. 1982)

United States v. Schaffer,

600 F.2d 1120 (5th Cir.1979)

United States v. Talkington,

598 F.2d 415 (9th Cir. 1978)

United States v. Valdez, 594

F.2d 725 (9th Cir. 1979)

United States v. Voorhees, 593

F.2d 346 (8th Cir. 1979)

Commonwealth v. McDuffee, 398

N.E. Mass. 1979)

8,10

9,10,13

16,22

Cases

Peo

viii

le v. Clemente, 285 App. Div.

258, 136 N.¥.S.2d 202 (lst

1954), aff'd, 309 N.Y.

890, 131 N.E.2d 294 (1955).

Dept.

Statutes

U.S.C.

A AAA AGBDAA A

783 (b)

287

922 (a) (6)

1001

1014

1341

1621

1623

7206 (1)

19,20

5,6,17

OPINIONS BELOW

The Order and opinion of the United

States Court of Appeals for the Second

Circuit is reprinted in the Appendix,

infra, at la.

The United States District Court for

the Southern District of New York entered

no written order or opinion.

JURISDICTION

The judgment of the Court of Appeals

for the Second Circuit, dated August 10,

1982, was entered on that date.

The Court of Appeals denied

petitioner's request for a rehearing by

order dated September 27, 1982.

The Court Of Appeals granted

petitioner's motion for a stay of the

mandate pending application for writ of

certiorari by order dated October 12,

1982. The Court further granted

petitioner a continuance of the stay

until December 6, 1982, by order dated

November 16, 1982.

Petitioner invokes the jurisdiction

of the Supreme Court under 28 U.S.C.

§ 1254 (1).

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

A. Constitutional Provisions

Article III, §2, in relevant part:

The Trial of all Crimes, except in

Cases of Impeachment, shall be by Jury;***.

Amendment V, in relevant part:

No person shall *** be deprived of

life, liberty or property, without due

process of law;....

Amendment VI, in relevant part:

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury***.

xii

Statute

§ 1623. False declarations before grand

jury or court

(a) Whoever under oath (or in any

declaration, certificate, verification,

or statement under penalty of perjury as

permitted under section 1746 of title 28,

United States Code) in any proceeding

before or ancillary to any court or grand

jury of the United States knowingly makes

any false material declaration or makes

or uses any other information, including

any book, paper, document, record, record-

ing, or other material, knowing the same

to contain any false material declaration,

shall be fined not more than $10,000.00

or imprisoned not more than five years,

or both.

(b) This section is applicable whether

the conduct occurred within or without

the United States.

violation of this section alleging that,

in any proceedings before or ancillary to

any court or grand jury of the United

States, the defendant under oath has

knowingly made two or more declarations,

which are inconsistent to the degree that

one of them is necessarily false, need

not specify which declaration is false if-

(1) each declaration was material

to the point in question, and

(2) each declaration was made

within the period of the statute

of limitations for the offense

charged under this section.

xiii

In any prosecution under this section,

the falsity of a declaration set forth in

the indictment or information shall be

established sufficient for conviction by

proof that the defendant while under oath

made irreconcilably contradictory declar-

ations material to the point in question

in any proceeding before or ancillary to

any court or grand jury. It shall be a

defense to an indictment or information

made pursuant to the first sentence of

this subsection that the defendant at the

time he made each declaration believed

the declaration was true.

(ad) Where, in the same continuous court

or grand jury proceeding in which a

declaration is made, the person making

the declaration admits such declaration

to be false, such admission shall bar

prosecution under this section if, at the

time the admission is made, the declaration

has not substantially affected the pro-

ceeding, or it has not become manifest

that such falsity has been or will be

exposed.

(e) Proof beyond a reasonable doubt under

this section is sufficient for conviction.

It shall not be necessary that such proof

be made by any particular number of wit-

nesses or by documentary or other type

of evidence.

Added Pub. L. 91-452, Title IV,

§ 40l(a), Oct. 15, 1970, 84 Stat. 932,

and amended Pub. L. 94-550, § 6, Oct. 18,

1976, 90 Stat. 2535.

STATEMENT OF THE CASE

Petitioner is a 35-year-old woman

who was indicted and tried on several

charges centering around a false document

and allegedly perjurious testimony con-

cerning that document given by petitioner

at a trial in 1981.

More specifically, petitioner was

indicted in June 1981 on two counts of

making false declarations before a court

(18 U.S.C. § 1623), one count of using a

false document before a court (18 U.S.C.

§ 1623), and one count of conspiracy (18

U.S.C. § 371). Upon her arraignment,

Miss Falco entered a plea of not guilty.

She was tried before Judge Vincent L.

Broderick, of the Southern District of

New York, and a jury in December 1981.

The jury returned a verdict of not guilty

on the conspiracy count and the first

count of making false declarations before

court, but a verdict of guilty on the

second false declaration count and the

false document charge.

In March 1982, petitioner was

sentenced to three months in prison and

three years probation, with a special

requirement of community service to be

rendered during the first two years of

the probationary term.

Applying the existing Second Circuit

rule, the trial court declined to permit

petitioner to present either evidence or

argument to the jury as to one element of

the § 1623 offenses, i.e., the materiality

of the false document and the false

declarations in question. Petitioner's

argument that neither the document nor

the testimony were material within the

meaning of § 1623 were substantial, and

the evidence sought to be introduced was

highly probative of the issue.

Nevertheless, due to the trial court's

ruling, the jury never passed on the

issue of materiality before reaching its

verdict, nor was the evidence ever tested

against the reasonable doubt standard. *

*No further discussion of the actual

merits of petitioner's arguments in her

case against the existence of materiality

is provided herein, as the factual explan-

ation necessary to those arguments is

exceedingly complex and would add little,

if anything, to the court's determination

of the merits of this petition. Those

arguments and explanations would, of

course, form a part of petitioner's brief

after grant of the writ.

Moreover, petitioner, in omitting a

lengthy factual exposition here, relies

as well on the doctrine that an unconsti-

tutional jury instruction, or a failure

to instruct the jury on the reasonable

doubt standard, can never be harmless

error. Jackson v. Virginia, 443 U.S. 307,

321 n. 14 (1979); Carpenters v. United

States, 330 U.S. 395, 408-09 (1947).

See also Rule 17.1, subsection (b)

(State court of last resort in conflict

with federal court of appeals on a

federal question).

Cc. A Substantial Federal Question

Exists In Part Due to the Sheer

Number of Offenses For Which

Materiality is an Essential

Element.

The perjury statute, by its very

words, requires that a false statement

have been material in order to be punish-

able. 18 U.S.C. § 1623.

Materiality is not a question limited

to this single statute, however. Scores

of federal statutes prohibit and penalize

false statements, misrepresentations,

false claims, and other forms of the

seemingly infinite varieties of fraud

which can be practiced upon federal

agencies, courts, financial institutions

and others.*

Many of these statutes, like § 1623,

explicitly require that the "false

statement" or other misrepresentation be

material. See, e.g., 18 U.S.C. § 1621

(perjury before grand jury); 18 U.S.C.

§ 922 (a) (6) (false statement in con-

nection with firearms purchase); 26 U.S.C.

§ 7206 (1) (false statement on income tax

return).

Apart from the literal terms of a

given false statement statute, however,

there is a discernible trend among

federal courts of appeals to read an

element of materiality into the offense,

* More than twenty five provisions

of the United States Code prohibit and

punish such offenses, See Historical Note

18 U.S.C.A.§ 1621, p.620 (1966) Note also

that the index of the United States

Code Annotated lists a total of forty

statutes under the “perjury or false

swearing" heading. 6 U.S.C.A.General Index

at 223-24 (1971).

whether the applicable statute requires

it or not. See, e.g., United States v.

Lichtenstein, 610 F.2d 1272, 1278 (5th

Cir. 1980) (Courts have inferred a judge-

made limitation of materiality as to all

offenses punishable under 18 U.S.C.

§ 1001) ; United States v. Halbert, supra,

640 F.2d at 1007 ("The evolution of the

federal law of fraud and false pretenses

has been toward a requirement of material-

ity"). The courts construing many of

these false statement offenses have

recognized that materiality is an essen-

tial element. See, e.g., United States

v. Halbert, supra, 640 F.2d at 1008;

(materiality essential to mail fraud

offense under 18 U.S.C. § 1341); United

States v. Kostoff, 585 F.2d 378 (9th Cir.

1978) (essential to bank fraud offense,

18 U.S.C. § 1014); United States v. Adler,

623 F.2d 1287, 1291 n. 5 (8th Cir. 1980)

¢essential element of both 18 U.S.C.

§ 1001, governing false statements to

government agencies generally, and 18

U.S.C. § 287, governing false claims

to federal agencies); United States v.

Talkington, 589 F.2d 415, 416 (9th Cir.

1978) (essential under 18 U.S.C. § 1001).

In summary, the false statement

offenses tend to be treated alike insofar

as the materiality question from one to

the other is concerned. Because the

various circuits handle the over-all

issue so differently, viewed from a cons-

stitutional point of view, the questions

petitioner raises herein have an impor-

tance far beyond her individual case and

the statute under which she was convicted.

D. The Supreme Court Has Never

Directly Passed On The Materiality

Question; The Majority Rule Rests

on a 1929 Dictum Which Cannot

Be Justified Either Logically

or Constitutionally.

The Supreme Court has never decided

a case in which these issues presented

here were squarely raised. See Rule 17.1,

subsection (c). Supreme Court opinion

on which the majority circuit courts all

ultimately rest their present practice as

to materiality is Sinclair v. United

States, 279 U.S. 263 (1929). Sinclair

concerned the question of a defendant's

refusal to answer “pertinent” questions

in a congressional committee hearing.

In a brief two paragraphs, the Sinclair

Court noted a similarity between the

concepts of pertinency and materiality

and stated that both should be decided by

the court. Id. at 298-99.

An extended treatment of the logical

arguments against the Sinclair Court's

characterization of materiality as a

"question of law for the court"must await

a full appellate brief.

The Court is referred for present

purposes, however, to the analyses

provided in McDuffee v. Commonwealth,

398 N.E. 2d 463 (Mass. 1979) and People

v. Clemente, 285 App. Div. 258, 262, 136,

309 N.Y. 890, 131 N.E. 2d 294 (1955).

Further, evidence that the character-

ization of materiality is not a question

of law, either by its nature or of neces-

ity, is provided by civil cases under

federal law in which the jury determines

the issue of materiality. See, e.g.,

Aquionics Acceptance Corporation v.

Kollar, 563 F. 2d 712, 715 (6th Cir.

1976); Radiation Dynamics, Inc. v.

Goldmuntz, 464 F.2d 876, 888 (2d Cir.

1972) (materiality issue submitted to

jury in suit for securities fraud under

15 U.S.C. § 78; (b)).

Suffice it to say that no matter

what the validity of the Sinclair dictum

in its day, the progressive clarification

of constitutional law since 1929 and the

consequent disagreement among today's

federal and state courts. (exemplified

by Jackson, Mullaney, Winship, Bloom,

infra},mandates that the question should

be taken up in detail and re-evaluated

in the light of our modern understanding

of a criminal defendant's constitutional

rights. A brief discussion of the clash

between the majority materiality rule and

those constitutional rights will now be

undertaken.

II. Defendants in Perjury And

Other False Statement

Prosecutions Are Denied

Plenary Jury Trials Within

The Meaning of the

Constitution in the

Majority of the Federal

Courts of Appeals.

That petitioner, at her trial on per-

jury charges, and other defendants accused

of false statement offenses,* are routinely

denied the full benefit of a jury trial

may be demonstrated by means of a simple

syllogism.

Under the perjury statute, a false

statement must be material in order to be

punishable. 18 U.S.C. § 1623. The courts

have therefore universally held that

materiality is an essential element of

this crime. See, e.g., United States v.

Berardi, 629 F.2d 723, 728 (2d Cir.),

*As discussed, supra, a goodly number

of federal statutes punish misrepresenta-

tions and other false statements. Mater-

iality is a necessary element of virtually

all such federal offenses.

cert. denied, 449 U.S. 995 (1980);

United States v. Bell, 623 F.2d 1132,

1134 (5th Cir. 1980); United States v.

Voorhees, 593 F.2d 346, 349 (8th Cir.

1979); United States v. Sl wik, 548 F.2d

75, 79 (3d. Cir. 1977). See also

Mullaney v. Wilbur, 421 U.S. 684, 702

(1975) (An element is any fact "critical

to culpability”); In re Winship, 397 U.S.

358, 364 (1970) (An element of a crime is

“any fact necessary to constitute the

crime").

The Supreme Court rule as to the

constitutional necessity of submitting to

the jury each and every element of an

offense could hardly be more clear. The

jury trial principle has been emphasized

repeatedly over the last decade and is

stated most succinctly in Jackson v.

Virginia:

- « «{NJo person shall

be made to suffer the onus

of a criminal conviction

except upon sufficient

proof--defined as evidence

necessary to convince a

trier of fact beyond a

reasonable doubt of the

existence of every element

of the offense.

443 U.S. 307, 316 (1979) (emphasis added).

See also In re Winship, 397 U.S. 358, 364

(1970) (Due Process Clause requires such

proof of "every fact necessary to consti-

tute the crime") (emphasis added).

The Supreme Court's edict that every

element of a crime must be submitted to

the trier of fact is clear and is stated

without admitting of any exceptions.

Nevertheless, the antiquated materiality

rule of the majority of the Courts of

Appeals leads to egregious violations of

that decree. This is best illustrated by

an opinion of the Second Circuit in which,

on one and the same page, the court an-

nounced that "[materiality] is a necessary

element of the crime of perjury,” but that

"(the jury] should be instructed that it

need not deliberate over this essential

element of the offense." United States

v. Berardi, 629 F.2d at 728. See also

United States v. Raineri, supra; United

v. Bell, supra; Unied States v. Giacalone,

supra; United States v. Kehoe, supra;

United States v. Paolicelli, supra (all

holding that materiality is an element

that need not be submitted to the jury).

Quite apart from the discrepancy be-

tween the Jackson language and the mater-

iality rule,the error of that rule may

also be laid bare by examining the

raison d'etre of the jury trial. The

Supreme Court has presented a searching

discussion of the basic purpose of the

jury trial in Baldwin v. New York, 399

U.S. 66 (1970). The Baldwin Court stated

in the first instance that the constitu-

tional allocation of power to the jury

rather than to the court represents a

“fundamental decision about the exercise

of official power.” Id. at 72. Justice

White went on the note that the Founding

Fathers placed particular importance on

jury trials to prevent the reality, or

even the appearance, of misuse of power

by the Government, whether through the

executive or its co-ordinate branch, the

judiciary:

"(T]he primary purpose of the

jury is to prevent the possi-

bility of oppression by the

Government; the jury inter-

poses between the accused and

his accuser the judgment of

laymen who are less tutored

perhaps than a judae or a

panel of judges, but who at

the same time are less likely

to appear as but another arm

of the Government that has

proceeded against [her].

Id. See also id. at 76-77 (Burger, C.J.,

dissenting) ("The Founding Fathers there-

fore cast the constitutional provisions

we deal with here as limitations on

federal power....").

As against the historical rationale

for jury trials and the constitutional

cases cited above, little can be said to

support the existing rule concerning

materiality except that it has had a long

life. The Supreme Court has made clear,

however, that no amount of “weighty and

ancient authority" can suffice to make an

unconstitutional practice acceptable.

Bloom v. Illinois, 391 U.S. 194, 196 n. 1,

198, 200 n. 2 (1968).

In Bloom, the Court reversed a prac-

tice more than two hundred and fifty years

old by holding that contempt cases could

no longer be determined by the court, but

must be submitted to a jury.

In the course of the Bloom opinion,

also, the Court referred briefly to the

historical rationale for requiring a jury

trial in criminal cases, j.,@,., "as a

protection against the arbitrary exercise

of official power." Id. at 202.

The Bloom Court, far from holding

that historic usage excused the necessity

for a jury trial in contempt cases, stated

instead that "an even more compelling ar-

gument” for the right to a jury trial

could be made out as to contempt charges,

because contemptuous conduct is "an inter-

ference with the judicial process" and

represents an offense against the court

itself. Id. at 202. These facts made ex-

ercise of the contempt power a particularly

"arbitrary" one and therefore all the

more “liable to abuse". Id. The necessity

to “interpose the jury” between the accused

and the accuser was thus paramount. Cf.

Baldwin v. New York, supra, at 72.

The same “even more compelling argu-

ments" are as true for perjury as they

are for contempt cases, as perjury too is

a crime that strikes at the heart of the

judicial process. Indeed, at petitioner's

sentencing hearing, the court before which

her perjury case was tried remarked that

it considered such charges extremely

serious, “because they go to the very nub

of our whole system of justice." Tran-

script of Hearing, March 16, 1982, at 16.*

The Bloom decision serves as an ex-

cellent illustration of the governing

precept that when historical practice and

the Constitution collide, it is history

which must yield.

Bloom serves equally to remind us of

the need for periodic re-examination of

allegedly unconstitutional practices in

*The fact that perjury prosecutions

often involve well-known political

figures is a further reason to place deter-

mination of each element of that offense

outside the reach of any branch of the

government. Here, for example, the chain

of indictments and trials that led to

petitioner's trial began with a highly

publicized investigation of Patrick

Cunningham, petitioner's employer and then

Chairman of the Democratic Party in

New York State. Much better-known and far

more controversial examples of political

figures convicted of perjury include

Earl Browder, former head of the American

Communist Party, and Alger Hiss.

3 2

the light of latter-day developments in

the constitutional case law. Petitioner

has marshalled extremely powerful

arguments for just such a re-evaluation

here.

3 3

III. The Second Circuit Rule

Concerning Materiality

Violates the Winshi

Principle That the

Reasonable Doubt Standard

Must Be Applied to Every

Element of a Criminal Offense

In In re Winship, the Supreme Court

said:

Lest there remain any doubt

about the constitutional

statute of the reasonable

doubt standard, we explicitly

hold that the Due Process

Clause protects the accused

against conviction except

upon proof beyond a reasonable

doubt of every fact necessary

to constitute the crime with

which he is charged.

397 U.S. 358, 364 (1970) (emphasis added).

The words “Lest there remain any

doubt" would seem to admit of little

question as to the depth of the Court's

constitutional commitment to the reason-

able doubt standard. This impression has

been strengthened by the Court's unequi-

vocal restatements of the Winship concept

in subsequent cases. See Mullaney v.

3 4

Wilbur, supra (the government"must prove

every ingredient of an offense beyond a

reasonable doubt....") (emphasis added).

See also Patterson v. New York, 432 U.S.

197, 215 (1977) (affirming the Mullaney

language).

The Second Circuit's rule on mater-

iality, however, is explicitly to the

contrary. Although recognizing that

materiality is an essential element of

any perjury offense, that Court has held

that materiality “need not be established

beyond a reasonable doubt". See, e.g.,

United States v. Berardi, 629 F.2d 723,

727 (2d Cir.), cert. denied, 449 U.S. 995

(1980. Accord, United States v. Giacalone,

587 F.2d 5, 7 (6th Cir. 1978), cert.

denied, 445 U.S. 961 (1979) ("The govern-

ment need not prove materiality beyond a

reasonable doubt".)

If the Constitution commands that

the reasonable doubt standard be applied

3 5

in Winship-style juvenile delirquency

proceedings, however, it is difficult

indeed to see how it can--in even a

limited way --constitutionally be denied

a defendant in a felony trial for perjury.

The Second Circuit rule on materiality

is, of course, unaccountable, illogical,

and unconstitutional. Defendants accused

of the crime of perjury, every bit as

much as other citizens, need and are en-

titled to that reduction in the litigative

“margin of error" which is provided by

the reasonable doubt standard. See In re

Winship, supra, 387 U.S. at 364. Due

process requires no less, and due process

is owed as much to those charged with

perjury offenses as to those charged with

kidnapping and homicide. See, @.g.,

Jackson v. Virginia, 443 U.S. 307, 323

(1979) ("The constitutional necessity of

proof beyond a reasonable doubt is not

confined to those defendants who are

3 6

morally blameless."). See also United

States v. Miranti, 253 F.2d 135, 141

(2a Cir. 1958) ("[T]he Constitution is

for the despicable as well as for the

admirable.").

Petitioner here seeks nothing more

than that the Due Process Clause be

applied to her, just as it is to defendants

charged with other--whether greater or

lesser-~crimes:

---The Due Process Clause

requires the prosecution

to prove beyond a reasonable

doubt all of the elements

included in the definition

of the offense of which

the defendant is charged.

Patterson v. New York, 432 U.S. 197, 210

(1977) (emphasis added).

3 7

CONCLUSION

The materiality rule, like the older,

unconstitutional contempt procedure, rests

on:

an unconstitutional assumption

of powers by the [courts]

which no lapse of time or

respectable array of opinion

should make us hesitate to

correct.

Bloom v. Illinois, supra, 391 U.S. at

198, quoting Black & White Taxicab &

Transfer Co. v. Brown & Yellow Taxicab

Transfer Co., 276 U.S. 518, 533 (1928)

(Holmes, J., dissenting).

In keeping with Justice Holmes' un-

compromising declaration, the Court should

issue a writ of certiorari to the Second

Circuit and make a fresh, binding

determination of the questions petitioner

raises. Nothing less will halt the con-

tinuing fragmentation and breakdown of

the former consensus on the materiality

rule; nor will anything short of a

3 8

Supreme Court decision put an end to the

apparently unconstitutional procedures

presently applied in felony trials for

perjury and other false statements--this

troubled area of our law.

For all of the foregoing reasons, a

writ of certiorari should issue to review

the judgment and opinion of the Court of

Appeals.

Respectfully submitted,

PAUL O'DWYER

99 Wall Street

New York, New York 10005

(212) 269-3939

Attorney of Record

KEARA M. O' DEMPSEY

275 Madison Avenue

New York, New York 10016

(212) 686-2265

Of Counsel

Dated: New York, New York

November 24, 1982

APPENDIX

Page

Opinion of the United States

Court of Appeals for the

Second Circuit la

Denial of Petition for Re-

hearing 9a

Memorandum Opinion and Order

of the United States

District Court for the

Southern District of

New York (excerpt) ;

United States v. Cunning-

ham lla

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-appellee, 8221104

Vv.

MARIE FALCO,

Defendant-Apnellant.

This is an appeal from an order of

the United States District Court for the

Southern District of New York, entered

after trial before Judge Vincent L.

Broderick and a jury, convicting appel-

lant Marie Falco of making false

material declarations under oath at a

trial and using a false document in the

course of that testimony, 18 U.S.C. §

1623.

During 1978, appellant's employer,

Patrick Cunningham, was the subject of

an Internal Revenue Service investigation.

In order to support his tax reports,

Cunningham persuaded his friend John

Spain to tell the IRS agents that he had

paid Cunningham $2,000 in cash during

1975 for legal services. Spain told

this story to IRS agents on two separate

occasions in 1978. In July 1980, Spain

appeared before a Grand Jury that was

investigating Cunningham and denied that

he had made such a payment. Spain was

charged with making a false statement to

the Grand Jury about his previous inter-

views with IRS agents and tried for

perjury in 1981. Appellant's indictment

arose out of her testimony at the Spain

trial.

Appellant was called by Spain's

counsel to testify about a memorandum

dated January 25, 1978, which detailed

Spain's interview on that day with the

IRS and stated that Spain informed the

IRS that he never paid Cunningham cash.

Appellant testified that she typed the

memorandum immediately after speaking to

Spain on the telephone about his inter-

view.

The Government cross-examined app-

ellant extensively about the memorandum.

Appellant insisted that it had been her

responsibility to conduct debriefings,

that she had remembered the memorandum

and brought it to Spain's attention after

the investigation focused on his perjurv

and that she was sure she typed the

memorandum immediately after Spain called.

The prosecuting attorney expressed dis-

belief that a professional typist pre-

pared the memorandum, which contained

numerous typographical errors. Other

evidence tended to show that appellant

did not work late on the night she

claimed to have typed the memorandum.

Appellant became quite emotional during

the cross-examination.

At her trial for perjury, appellant

admitted that the memorandum was false,

but claimed that she had in fact typed

a memorandum which was replaced by the

fabrication without her knowledge. She

introduced psychiatric testimony to show

that her mental and emotional condition

was such at the Spain trial that she was.

unable to distinguish the false document

from the memorandum she had prepared.

Viewed in the light most favorable

to the Government, drawing all rational

inferences in favor of guilt, Glasser v.

United States,315 U.S. 60, 80 (1942),

the evidence at appellant's trial was

sufficient to show that she intentionally

made a material false statement under

oath at Spain's trial. The jury was en-

titled to evaluate the credibility of

the psychiatric witnesses and reject

their opinion that appellant was unaware

that her testimony was false.

See United States v. Singh,628 F.2d 758,

766 (2d Cir.), cert. denied, 449 U.S.

1034 (1980). A rational trier of fact

could reasonably have found that appel-

lant had the specific intent to commit

perjury.

Appellant’s claim that the trial

judge erred in denying her request to

submit the materiality issue to the jury

is without merit. This Court has con-

sistently held that materiality is a

threshold question to be decided by the

court. United States v. Berardi, 629

F.2d 723, 728 (2d Cir.), cert. denied,

449 U.S. 995 (1980); United States v.

Mulligan, 573 F.2d 775, 779 (2d Cir.),

cert. denied, 439 U.S. 827 (1978).

Furthermore appellant's false statements

were unquestionably relevant to whether

Spain testified falsely to the Grand

Jury.

Appellant's motion for a new trial

on the basis of newly discovered evidence

was properly denied because appellant

failed to show either that evidence of

a telephone conversation log kept at

Cunningham's office would probably lead

to acquittal, United States v. Gilbert,

668 F.2d 94, 96 (2d Cir. 1981), cert.

denied,102 S. Ct. 2014 (1982), or that

tle evidence could not have with due

diligence been discovered at or before

trial. United States v. Natelli, 553

F.2d 5, 7 (2d Cir.), cert denied, 434

U.S. 819 (1977). The record proffered

as newly-discovered evidence simply did

not corroborate appellant's statement

that she spoke to John Spain on January

25, 1978.

Inasmuch as appellant was not

asserting an insanity defense, the court

was not required to instruct the jury

that the Government must disprove evidence

of appellant's deficient mental condition.

Psychiatric testimony was offered by

appellant to negate the intent element

of the offense, and the jury was ade-

quately instructed that the Government

bore the burden of proving intent beyond

a reasonable doubt.

Decisions on the admissibility of

evidence are vested in the trial court

and should not be disturbed absent an

abuse of discretion. United States v.

Robinson, 560 F.2d 507, 515 (2d Cir.)

cert. denied, 435 U.S. 905 (1977).

Because statements made by a defendant

about her mental state may be unreliable

when made in anticipation of litigation,

the trial court did not err in admitting

statements made by appellant to her

testifying psychiatrists for the limited

purpose of assessing the expert witnesses'

credibility.

Finally, appellant has not shown

that the district court judge relied on

material misinformation or constitution-

ally impermissible factors in setting

sentence. Accordingly, the sentence

which concededly is within the statutory

limit is not subject to appellate review.

United States v. Mejias, 552 F.2d 435,

447 (2d Cir.), cert. denied, 434 U.S.

847 (1977).

The judgment is affirmed.

Hon. Ellsworth A. Van Graafeiland

Hon. Lawrence W. Pierce

Hon. Howard T. Markey

ENTERED: August 10, 1982

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States

Courthouse, in the City of New York, on

the 27th day of September, one thousand

nine hundred and eighty-two.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 81-1104

MARIE FALCO,

Defendant-Appellant.

A petition for rehearing containing

a suggestion that the action be reheard

in banc having been filed herein by

counsel for the defendant-appellant,

Marie Falco,

10 a

Upon consideration by the panel that

heard the appeal, it is

ORDERED that said petition for hear-

ing is DENIED.

It is further noted that the sugges-

tion for rehearing in banc has been trans-

mitted to the judges of the court in

regular active service and to any other

judge on the panel that heard the appeal

and that no such judge has requested that

a vote be taken thereon.

A. Daniel Fusaro, Clerk

by:

Francis X. Gindhart

Chief Deputy Clerk

Entered: September 27, 1982

lla

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-~----------------------------- x

UNITED STATES OF AMERICA : 81 Cr.

: 458-CLB

— {Excerpts

PATRICK J. CUNNINGHAM and —. om

JOHN J. SWEENEY, ae

Defendants. :

eeccoesscoscoesosesesosesesse xX

(Excerpt from pp. 26-27:)

By this motion, Sweeney urges this Court

to determine the materiality of these

alleged false declarations at this pre-

trial stage, or in the alternative, to

determine whether this issue should be

submitted as one of fact to the jury for

resolution.

It is undisputed that the burden of

proof is upon the Government to establish

the following four elements with respect

to Counts VIII, IX and X: (1) that

Sweeney took an oath to testify truth-

fully before a United States grand jury

12 a

in this district; (2) that he then made

false statements as to matters about

which he testified under oath as are

charged in the Indictment; (3) that those

false statements were wilfully made in

that he knew them to be false when made;

and (4) as to the matters which were

allegedly false, that such were material

to the issues under inquiry by the grand

jury. See United States v. Mulligan,

573 F.2d 775, 779 (2d Cir.), cert. denied,

439 U.S. 827 (1978).

The Government urges, however, that

the necessary element of materiality

within the offense charged in 18 U.S.C.

§1623 is a question of law to be deter-

mined by court, and also that it need not

be proved beyond a reasonable doubt.

Relying upon United States v. Berardi,

629, F.2d 723, 728 (2d Cir.), cert. denied,

445 U.S. 995 (1980) and Mulligan, supra,

the Government asserts that its proof at

13 a

trial will satisfy this lesser standard

and establish the materiality of the

alleged false declarations charged in

Counts VIII, IX and X.

The difficulty presented by the

Government's contention is that it

controverts the fundamental right

accorded criminal defendants that no

person shall lose his liberty unless the

Government has “persuad[ed] the fact-

finder at the conclusion of the trial of

his guilt beyond a reasonable doubt”. In

re Winship, 397 U.S. 358, 364 (1969).

It was held in Patterson v. New York,

432 U.S. 197, 210 (1976), that:

"(T]he Due Process Clause requires

the prosecution to prove beyond a

reasonable doubt all of the elements

included in the definition of the

offense of which the defendant is

charged.” (emphasis added)

This Constitutional requirement was

reiterated in Sandstrom v. Montana,

442 U.S. 510, 520 (1978).

14a

Materiality is an essential element

of the crime charged in 18 U.S.C. § 1623.

Accordingly, materiality must be estab-

lished by the Government to the satis-

faction of the trial jury beyond a

reasonable doubt. We believe that the

Government's reliance upon Berardi and

Mulligan, which may be read to suggest

otherwise, is misplaced.

At the trial of this Indictment, the

Court will present the materiality vel

non of the alleged false declarations to

the jury as an essential element of the

offenses charged to be regarded as a

disputed issue of fact subject to the

jury's determination beyond a reasonable

doubt before a conviction may be had.

x ke

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.