# Petition — Isenberg v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0068%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 926

## Text

~-967

on

Office-Supreme Court, U.S.
FILED

PES 10 1999-

ALEXANDER L. STEVAS,
In The CLERK

Supreme Court of the United States

October Term, 1982

LEE ISENBERG,

Petitioner,
—_

UNITED STATES OF AMERICA,
Respondent.

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

CRIMINAL MATTER

JAMES A. WADE

ROBINSON, ROBINSON & COLE
799 Main Street

Hartford, Connecticut 06103
Counsel for Petitioner

December 10, 1982

i
Preliminary Matters

1. Questions Presented

1. Does a jury charge which singles out the credi-
bility of the defendant and calls to the attention of the
jury his interest in the outcome of the case violate the due
process rights guaranteed the petitioner by the Fifth
Amendment to the United States Constitution?

2. In a prosecution for violation of 18 United States
Code, Section 1001 (making false and fraudulent state-
ments), does a jury charge which charges the jury that
the materiality of the allegedly false statement is a matter
of law for the court to determine and not a matter of fact
for the jury violate the petitioner’s rights to due process
and to trial by jury as guaranteed by the Fifth and Sixth
Amendments to the United States Constitution?

2. List Of All Parties

All parties appear in the caption of the case in
this Court.

ii
TABLE OF CONTENTS

PAGE
IE, PMOOIND coer ccc ccccctcsecccvccsens i
DT PRONOUN occ cctcvcccccccacess i
Ce i eM pd ccbcnesevecceeeress i
ee uns he was 0.0 0b bones co cnesess 1
Rr 2
Statutory Provisions Involved ............0e.00e0s 2
I PEE vise bc ccsicrecccacccsecvevens 2
i Ce ED viva cwossccseececesesscess 5

1. Formation of Lee Isenberg Associates and the
Early Training Programs ............... 5

2. How the CETA Chef Training Programs
os eee 7
TE, 5 cccccbeoscccccecsesceses 9
Be Ne BOUEE OE OT VIOED occ ccc ccccnsvccces 9
cc sis eb eeeeseasesseeseens 10
ce cceekebecsesecessecees 11
Reasons for Granting the Writ ..............006. 12

I. The Decision Below Affirming the Trial
Court’s Charge to the Jury on the Petitioner’s
Testimony, Which Called to the Attention of
the Jury His Interest in the Outcome of the
Case, Conflicts with the Decisions of Other
EE cetkbawevesneeenenedes 13

Il. The Decision Below Affirming the Trial
Court’s Charge to the Jury that the Issue of
the Materiality of a False Statement Under
Section 1001 of Title 18 of the United States
Code is a Question of Law for the Judge and

iii
PAGE
Not of Fact for the Jury is in Conflict with

Decisions of Other Courts of Appeal ....... 17
RO Pe ree rey Trey eee ee 20
PUG bic di-evautsnkeseca ee eersueeeewledaaes la

CITATIONS

Cases:
Alder v. State, 239 Ind. 68, 154 N.E.2d 716 (1958) .. 6
Allison v. United States, 160 U.S. 203 (1895) ..... 14
Barnett v. State, 240 Ind. 129, 161 N.E.2d 444 (1959) 16
Coffin v. United States, 156 U.S. 482 (1895) ....... 14
Deutch v. United States, 367 U.S. 456 (1961) ...... 14
Freidus v. United States, 223 F.2d 598 (D.C. Cir.

SD ka ep hae cuaak eb aviuds cde eis Caen tees 18
Garvin V. State, 263 N.E.2d 371 (Ind. 1970) ...... 16
Gonzales v. United States, 286 F.2d 118 (10th Cir.),

cert. denied, 365 U.S. 878 (1961) ............ 18
Hall v. State, 250 Miss. 258, 165 So.2d 345 (1964) .. 16
Hicks v. United States, 150 U.S, 442 (1898) ...... 14
lowa V. Bester, 167 N.W.2d 705 (lowa 1969) ...... 16

Quercia v. United States, 289 U.S. 466 (1933) ... 13,14
Rolland v. United States, 200 F.2d 678 (5th Cir.),

cert. denied, 345 U.S. 964 (1953) ............ 19
Poulos v. United States, 387 F.2d 4 (10th Cir, 1968) 18
State v. Alinutt, 156 N.W.2d 266 (lowa 1968) ..... 16

State v. Bennett, 172 Conn. 324, 374 A.2d 247 (1977) 16

State v. Finkelstein, 269 Mo. 612, 191 S.W. 1002
CEOAET oes cr rv esbneceeveeveseseus viesseekee 16

State v. Gibson, 228 Iowa 748, 292 N.W. 786 (1940) 16

SOOO =

iv

PAGE

State v. Guthridge, 164 Conn. 145, 318 A.2d 87
(1972), cert. denied, 410 U.S. 988 (1973) ....

State v. Jonas, 169 Conn. 566, 363 A.2d 1378 (1975),
cert. denied, 424 U.S. 928 (1976) ............

State v. Kurvin, 186 Conn, 555, 442 A.2d 1327
fb | ERSTE UEPE TIER Eee eRe E Te

State v. Mastropetre, 175 Conn. 512, 400 A.2d 276
| SERS gag ery erring are eee

State v. Palko, 122 Conn. 529, 191 A. 320, aff'd. 302
ee ED nda g Gama Ws had naw eee wok eS

State v. Schleifer, 102 Conn. 708, 180 A. 184 (1925)

State v. Stepney, Conn. Supreme Court Docket No.
SE Geavn seas evesaes ce san baeaeeenecdes oi

State v. Underwood, 281 N.W.2d 337 (Minn. 1979)
Swanson Vv. State, 222 Ind. 217, 52 N.E.2d 616 (1958)
United States v. Alu, 246 F.2d 29 (2d Cir. 1957)

United States v. Bear Killer, 584 F.2d 1253 (8th
Cir.), cert. denied, 429 U.S. 846 (1976) ......
United States vy. Bernard, 384 F.2d 915 (2d Cir.
es ee re oid Ree a cae hs

United States v. Brown, 453 F.2d 101 (8th Cir.),
cert. denied, 405 U.S. 978 (1972) ............

United States v. Cleary, 565 F.2d 43 (2d Cir. 1977),
cert, denied sub nom, Passarelli v. United States,
es We CD, Sis ase és 0 bebe tooes cee,

United States v. Deep, 497 F.2d 1816 (9th Cir.
I i ard ork in-g 6 iol ares oa Oe

United States v. East, 416 F.2d 351 (9th Cir. 1969)

United States v. Floyd, 555 F.2d 45 (2d Cir.), cert.
dented, 484 U.S. 851 (1077) ..... cc ccccceces

United States v. Hernandez, 588 F.2d 346 (2d Cir.
SN SG orig CSET a ee Wl ob uo bd ace saci oe

16

16

16

16

16
16

16
16
14
18

15

18

15

17

Vv
PAGE

United States v. Irwin, 654 F.2d 671 (10th Cir.
1981), cert. denied, 50 U.S.L.W. 3783 (1982) .. 18

United States v. Johnson, 284 F. Supp. 273 (W.D.
Mo, 1968), aff’d., 410 F.2d 38 (8th Cir.), cert.
denied, 896 U.S, 822 (1969) ................ 19

United States v. Marchisio, 344 F.2d 653 (2d Cir.
eee Ue ae ee eeeees 18

United States v. Martin, 525 F.2d 703 (2d Cir.), cert.
denied, 423 U.S. 1085 (1975) .............08. 15

United States v. Moore, 185 F.2d 92 (5th Cir. 1950) 19
United States v. Pereira, 463 F. Supp. 481 (E.D.N.Y.

a il SRA TEER a ee 18
United States v. Radetsky, 5385 F.2d 556 (10th
Cir.), cert. denied, 429 U.S. 820 (1976) ...... 18

United States v. Rucker, 586 F.2d 899 (2d Cir. 1978) 15
United States v. Schlesinger, 598 F.2d 722 (2d Cir.),

cert, denied, 444 U.S. 880 (1980) ............ 15
United States v. Standing Soldier, 588 F.2d 196 (8th
Cir.), cert. denied, 429 U.S. 1025 (1976) ...... 15
United States v. Talkington, 589 F.2d 415 (9th Cir.
ES A ne Pee eee eee eer ee 19
United States v. Voorhees, 593 F.2d 346 (8th Cir.),
cert. denied, 441 U.S. 986 (1979) ............ 19
Wilson Vv. United States, 162 U.S. 613 (1896) ...... 14
Statutory Provisions:
vette dhennceevescesaees 3, 17, 18, 19
EPO eT eT eee Te Tee eee Teer eee 4
Re 4
Miscellaneous:

Annot., 85 A.L.R. 5238 (1983) .......... eee eee 16

In The
Supreme Court of the United States
October Term, 1982
No.

LEE ISENBERG,
Petitioner,
— |

UNITED STATES OF AMERICA,
Respondent.

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

CRIMINAL MATTER

The petitioner Lee Isenberg respectfully prays that a
writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Second Circuit entered in this proceeding on November
i2, 1982.

Opinion Below

The affirmance without formal opinion of the Court of
Appeals appears in the Appendix hereto. No opinion was

*

— ee

— le

_ —— rr SCC eh ,lCUhrF OC !hllhr—oa

6.

8a

at the offices of Lee Isenberg Associates falsifying
paperwork, although he was supposed to be in the
field supervising trainees. Burvick testified that
Isenberg was aware of these activities, inquired
“how long will it take?” and indicated his fear
that they might be “caught” by the auditors. As
to paragraph 11 of Count I, therefore, there was
evidence from which, “giving full play to the right
of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, a
reasonable mind might fairly conclude guilt beyond
a reasonable doubt,” United States v. Taylor, 464
F.2d 240, 248 (2d Cir. 1972), quoted in United
States v. De Garces, 518 F.2d 1156, 1159 (2d Cir.
1975), and Judge Clarie properly denied the motion
for judgment of acquittal.

Isenberg contends further that the acquittal of
Edward Isenberg on the conspiracy count requires
the same disposition as to him. This is a mis-
statement of the law. F..9., United States v. Artuso,
618 F.2d 192, 197 (2d Cir.), cert. denied, 449
U.S. 951 (1980).

The district court properly denied the Rule 29
motion as to the theft counts. The variances alleged
to exist between the misappropriations estimated in
the government’s bill of particulars and the
amounts proved at trial depend entirely on Car-
done’s testimony, and ignore the employees’ own
assessments of time spent working for CETA and
Lee Isenberg Associates. Any variances which re-
main in no way prejudiced Isenberg. United
States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963).

Cardone’s testimony provided amply [sic] support
for the government’s case on Counts XXXIV-LVIII
and for the jury’s ultimate conclusion that Isenberg
directed in detail the falsification of invoices and

9.

da

other documents requesting reimbursement from
CETA prime sponsors. The motion for judgment
of acquittal on the false statement counts was
correctly denied.

Appellant’s claims of error in the district court’s
charge to the jury also have no merit. Judge
Clarie directed the jury’s attention to Cardone with
instructions that Cardone’s testimony was “to be
received with caution and considered with great
care,” and further cautioned that “[{t]he fact that
an accomplice has entered a plea of guilty is not
evidence of the guilt of any other person.” The
charge on accomplice testimony was therefore ap-
propriate. EF.g., United States v. Projansky, 465
F.2d 123, 136 & nn.21 & 25 (2d Cir.), cert. denied,
409 U.S. 1006 (1972).

The district court’s charge on Isenberg’s testimony
did not affect the presumption of innocence. The
court was careful to emphasize the jury should not
conclude “that simply because a person has a vital
interest in the end result of the trial, that he is
not capable of telling a truthful and straight-
forward story.” We have upheld similar instruc-
tions and have never accepted the argument that
they improperly single out the defendant for
special comment. E.g., United States v. Martin,
525 F.2d 703, 706-07 & n.3 (2d Cir.), cert. denied,
423 U.S. 1085 (1975).

Judge Clarie’s instruction that the government
must prove “the members [of an alleged con-
spiracy| in some way or manner, or through some
contrivance, positively or tacitly came to a mutual
understading to try to accomplish a common and
unlawful plan” correctly stated the elements of
the crime of conspiracy. United States v. Hock-
ridge, 573 F.2d 752, 760-61 & nn.22-23 (2d Cir.),
cert, denied, 439 U.S. 821 (1978).

a ee

ee

10.

11,

5a

Materiality is a question for the court and Judge
Clarie so charged the jury. United States v. Ber-
nard, 384 F.2d 915, 916 (2d Cir. 1967) (per
curiam).

The judgment of conviction is affirmed in all re-
spects.
/s/ IRVING R. KAUFMAN
IRVING R. KAUFMAN,

/s/ WM H. TIMBERS
WILLIAM H, TIMBERS,

/s/ JON O, NEWMAN
JON O. NEWMAN, Circuit Judges

6a
Excerpts from the Trial Court's Jury Charge

1. Defendant's Testimony

With respect to the defendants, Edward Isenberg and
Lee Isenberg, who testified, you must carefully consider
the testimony of each. An accused person is not obligated
to take the witness stand in his own behalf. On the other
hand, he has a perfect right to do so, as the defendants
have done here.

In weighing the testimony each has given, you should
apply the same principles by which the testimony of the
other witnesses is tested, including the witnesses called
by the Government. That necessarily involves a con-
sideration of the interest each defendant has in the case.
An accused person, having taken the witness stand, is
before you just like any other witness. He is entitled to
the same considerations, and may have his testimony
measured in the same way as any other witness, including
his interest in the verdict which you are called upon to
render.

However, I want to say this with equal force to you: It
by no means follows that simply because a person has a
vital interest in the end result of the trial, that he is not
capable of telling a truthful and straightforward story.

It is for you to decide to what extent, if at all, the de-
fendants’ interest have affected or colored their testi-
mony.... (T.T. 3812-13).

2. Materiality

The making of a false statement to an agency of the
United States Government is not an offense, unless the
statement made is a material statement. The issue of
materiality, however, is not submitted to you for your
decision, but rather is a matter for the decision of the
Court. You are instructed that the statements charged in
the indictment are material statements. (T.T. 3802).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0068%3A1. Public record. Not legal advice.