Petition — Kozachenko v. United States

488° |"

4

(ew)

ALBXANOSS

SEP 22

In The

Supreme Court of the United States

October Term, 1982

No.

ROBERT M. KOZACHENKO,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES W. TESSMER

2300 One Elm Place

1015 Elm St.

Dallas, Texas 75202

(214) 748-3433

Counsel for Petitioner

QUESTION PRESENTED

Whether a government prosecutor, during

presentation of his case-in-chief, may advert

to Mr. Kozachenko's failure to accept or

reject an invitation to attend the grand jury

to tell his side of the story,

the Fifth Amendment to the Constitution?

TABLE OF CONTENTS

Table of Authorities...

Opinion Below. .... -

JSUELORLSCION. «' « «© « 6s

Constitutional Provision

Statement of the Case .

Reasons for Granting the

Conclusion .«. . « « « « «

Certificate of Service .

Appendix A... +. «+ « -«

Appendix B .....« «

Appendix C . . «.« « « e« «

Appendix D....« «+. -«

in violation of

ii

TABLE OF AUTHORITIES

Page

Chapman v. United States, 547 F.2d 1240,

(Sth Cir. 1977), cert. denied, 431

U.S. 908, 97 S.Ct. I705, 52 L.Ed.2d

ee Seer e ge « 6 6 © © © # © « 0) 0, o slge@ean

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.

eaees S2 ERG. 20 91 (1976) .« «6 2 © 0. 0 SeSgF ou

Grunewald v. United States, 353 U.S.

391, 77 8.Ct. 963, 1 L.EBd.2d 931 (1957) 6,11,13

United States v. Anderson, 498 F.2d 1038

(D.C. Cir. 1972), affirmed sub non,

United States v. Hale, 422 U.S. 171

we ke eb os «8 ee 6 ee 9

United States v. Hale, 422 U.S. 171, 95

S.Ct. 2133, 45 L.Ed.2d 99 (1975) ... 5,6,9,15

United States v. Impson, 531 F.2d 274

(Sth Cir. 1976), cert.denied, 434

U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 4,7,8,9,

SETS ULI E LG gg ye so eo Agee

United States v. Kozachenko, 708 F.2d

SE 2

United States v. Lewis, 475 F.2d 571

(5th Sr. 1973) _ oe o >. >. — . o 6 o >. — 10

United States v. Shaw, 701 F.2d 367

(5th me | 1983) * . . 7 . _ _ oe . oo . 8,10,11

United States v. Ylda, 643 F.2d 348

(5th Gif. 1981) 7 . ° oe o . ee @ oo ° . © 5,7,8,10

In The

?

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No.

ROBERT M. KOZACHENKO,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, ROBERT M. xOZACHENKO, re-

spectfully prays that writ of certiorari issue

to review the judgment of the United States

Court of Appeals for the Fifth Circuit in this

case.

OPINION BELOW

The opinion of the circuit court of appeals

was not prepared for publication and reported

at United States v. Kozachenko, 708 F.2d 719

(Sth Cir. 1983), attached hereto as Appendix A.

JURISDICTION

The judgment of the United States Court of

Appeals for the Fifth Circuit was entered on

June 6, 1983. A petition for rehearing was denied

on July 29, 1983. (Appendix B). The jurisdiction

of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const., amend. V:

"No person...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,..."

STATEMENT OF THE CASE

Mr. Kozachenko was charged with the offense of

attempted tax evasion of his income tax for the

years 1975, 1976, 1977 and 1978 in violation of

26 U.S.C. §7201. The jury found Mr. Kozachenko

3

guilty of the offense in the years 1975, 1977 and

1978, but acquitted him for the year 1976.

In these tax years, utilizing the "net worth”

method of proof, the government established ex-

penditures in each year of sums greatly in excess

of the gross income reported by Mr. Kozachenko.

The government maintained that Mr. Kozachenko .

omitted taxable income for 1975 of $12,304.75;

1976 - $31,253.39; 1977 - $43,582.15; and 1978 -

$11,785.20 or a total of $98,925.49.

Mr. Kozachenko was a buyer with the Army and

Air Force Exchange Service (AAFES). It was the

government's theory that the likely source of the

unreported income came from bribes paid to Mr.

Kozachenko by AAFES vendors, and produced evidence

of only one $1,600.00 bribe in 1977 and a micro-

wave oven which Mr. Kozachenko denied. Mr.

Kozachenko testified, without dispute, that the

expenditures established by the government were

made with foreign gambling proceeds of $112,000.00

accumulated in pre-indictment years 1972, 1973,

4

1974 and early 1975 while in Italy, France and

Germany. Mr. Kozachenko's gambling proficiency

for winning substantial amounts of money was

corroborated by eight witnesses and numerous ex-

hibits.

During direct examination of the government's

key witness, Internal Revenue Service (IRS) Agent

Santowski, Mr. Alexander abruptly asked the

following question:

"0 What are the facts as to whether

or not Mr. Kozachenko was invited to

attend the grand jury and present his

side of the story?”

The trial court sustained Mr. Kozachenko's

immediate objection, instructed the jury to dis-

regard the question, but overruled his request

for a mistrial. (Appendix C).

On appeal, Mr. Kozachenko contended that the

question infringed on his Fifth Amendment right

to remain silent. In federal court, mention of

the accused's silence by the prosecutor in his

case-in-chief is a violation of constitutional

dimension. See, United States v. Impson, 53l

5

F.2d 274, 276 (5th Cir. 1976), cert.denied, 434

U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978).

The United States Court of Appeals for the

Fifth Circuit affirmed, stating on this issue:

"Although it is far from clear

that the prosecution's question was

proper, it is clear that the prejudi-

cial effect of the question did not

warrant a mistrial in light of the

district court's adequate instruction

to the jury to disregard the improper

question. See United States v. Ylda,

643 F.2d 348, 350-351 (5th Cir. I981).”

(Appendix A, pg. 15).

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the

Fifth Circuit rendered its decision in direct

conflict with its prior decisions on the same

matter, which, in the administration of justice,

calls for an exercise of this Court's power of

supervision. In addition, the circuit court has

decided the constitutional question in conflict

with the applicable decisions of this Court in

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976); United States v. Hale, 422

U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975);

6

and Grunewald v. United States, 353 U.S. 391,

77 S.Ct. 963, 1 L.Ed.2d 931 (1957). Also, the

issue has not been precisely determined by this

1

Court.

This Court in Doyle v. Ohio, supra, raised to

a constitutional level the prohibition of pro-

secutorial comment on silence for impeachment.

In United States v. Hale, supra, this Court exer-

cised its supervisory powers over federal courts

to hold that prior silence cannot be used for im-

peachment where silence is not probative of a de-

fendant's credibility and where prejudice to the

defendant might result. Grunewald v. United

States, supra, precludes cross-examination of a

defendant as to why he had asserted the Fifth

Amendment plea before the grand jury with refer-

ence to a question he later answered at trial.

1 In Doyle, Hale, Grunewald, and in Jenkins

v. Anderson, 447 U.S. 231, 100 S.Ct. 212k,

65 L.Ed.24 B6 (1980), the evidence of silence

surfaced during cross-examination of the de-

fendants, whereas here Mr. Kozachenko's si-

lence was referred to during the prosecution's

case-in-chief.

7

m~

In the United States Court of Appeals for the

Fifth Circuit, these rules include a ban on the

use of defendant's silence in the government's

case-in-chief. See, United States v. Impson, ®

531 F.2d 274, 276 (5th Cir. 1976), cert.denied,

434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803

(1978) .°

In Mr. Kozachenko's case, the circuit court

found that a mistrial was not warranted in view

of the adequacy of the instruction to the jury

relying on its decision in United States v. Ylda,

643 F.2d 348 (Sth Cir. 1981). Ylda, however, was

decided on the principles enunciated in Chapman v.

United States, 547 F.2d 1240, 1249-1250 (5th Cir.

1977), cert.denied, 431 U.S. 908, 97 S.Ct. 1705,

52 L.Ed.2d 393 (1977) that separated Doyle cases

into three categories which weighed the prejudice

arising to the defendant by virtue of such a

comment against the strength of the government's

2 Gee also, United States v. Stevens, 538 F.24

1203, 1205 (Sth Cir. 1976) and United States

v. Meneses-Davile, 580 F.2d 888, 891 (5th Cir.

1978).

case. Subsequent to Ylda and Chapman, but prior

the decision in Mr. Kozachenko's case, the cir-

cuit court decided United States v. Shaw, 701

F.2d 367 (5th Cir. 1983), attempting to alleviate

what it identified as "considerable confusion in

this Circuit" as to the applicable standard for

determining when reversal is required by Doy.e

violations. Id, at 382. The circuit court said

that the later cases have shown "that factual

situations are not always amendable to description

within the rigid Chapman types.” Id., at 382.

Further scrutiny of case law "illustrates that

this Court's basic concern has been whether or not

the improper comment was harmless error because by

its nature and under the circumstances it would

have only an insignificant impact on the jury."

Id, at 383. Among the cases discussed in Shaw

having been reversed under this standard, is that

of United States v. Impson, 531 F.2d 274, 278

(5th Cir. 1976), cert.denied, 434 U.S. 1050, 98

S.Ct. 900, 54 L.Ed.2d 803 (1978), where the de-

fendant's defense was “not so implausible as to

be dismissed out of hand" and evidence of guilt

9

was “not overwhelming". ° In Impson, evidence of

defendant's silence when arrested was brought out

by the prosecutor in his case-in-chief, and there-

after Impson gave exculpatory testimony. The same

is true in Mr. Kozachenko's case. Impson followed

the rationale of United States v. Hale, 422 U.S.

171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). In both

Hale and Impson, the trial judge instructed the

jury to disregard the evidence, but refused to

grant a mistrial. The same succession of events

occurred in Mr. Kozachenko's case. The trial court

in Hale held that the instruction did not cure the

error. See, United States v. Anderson, 498 F.2d

1038, 1045 (D.C. 1972), affirmed sub nom, United

States v. Hale, supra. The circuit court made the

same ruling in Impson, and there pointed out that

such an instruction might have emphasized and aggra-

vated the error before the jury to the effect that

the defendant was exercising his Fifth Amendment

3 Mr. Kozachenko brought the Impson holding

to the attention of the circuit court on

original appeal.

10

right to remain silent. The court went on to

hold in Impson that the curative instructions to

the jury had no controlling significance. ”

In Mr. Kozachenko's case, the circuit court

neither applied the Chapman tripartite analysis

as used in Ylda nor its later analysis enunciated

in Shaw. The circuit court merely held that the

instruction to the jury cured the error in direct

conflict witi: its decision in Impson. In essence,

the panel of the circuit case in Mr. Kozachenko's

case has overruled the prior decision in Impson,

while the panel of the circuit court in Shaw has,

in effect, overruled the prior decisions in

Chapman and Ylda. In the United States Court of

Appeals for the Fifth Circuit, prevailing pre-

cedent precludes one panel from overruling the

prior decision of another, en banc consideratior

being required. United States v. Lewis, 475 F.2d

571, 574 (5th Cir. 1973); F.R.App.P. 35.

4 The circuit court has also held that comments

on silence may constitute plain error. See,

United States v. Henderson, 565 F.2d 900, 905

(Sth Cir. 1978) and United States v. Shaw,

701 F.2d 367, 382, n. 9 (Sth Cir. 1983).

1l

Even applying the later standard of United

States v. Shaw, supra, to Mr. Kozachenko's case,

the error cannot be harmless beyond a reasonable

doubt.

An invitation to attend the grand jury before

an official accusation has been made would, it-

self, be to compel self-incrimination, thus

bringing the Fifth Amendment into play. Grunewald

v. United States, supra, 353 U.S. at 421-422, 77

S.Ct. at 982-983, 1 L.Ed.2d 931 (1957). Mr.

Kozachenko had been under investigation by the

IRS for more than two and a half years, and as

in Grunewald, he was clearly a potential target

for indictment.

The point upon which the defense was being

constructed [the existence of foreign gambling

proceeds in pre-indictment years] was arguably

damaged by proof of Mr. Kozachenko's invitation

to the grand jury elicited when Mr. Kozachenko's

explanation had not yet been brought forward as

part of his defense. The obvious implication of

12

the prosecutor's question was that if Mr.

Kozachenko had an exculpatory story to tell, he

would have spoken sooner and given the facts to

the grand jury before an indictment was returned

against him. As against the complete lack of

probative value, the question carried with it an

intolerable prejudicial impact of two varities.°

First, the bold purpose of the question was to

convey to the jury that Mr. Kozachenko was guilty

or else he would not have remained silent. Thus,

there was a danger of jury prejudice in advance

against any explanation Mr. Kozachenko might offer

in his defense. Secondly, the timing of the ques-

tion makes clear that Mr. Kozachenko's credibility

was already in question. Without an understanding

of the uncertainties a potential defendant faces

in testifying before a grand jury, the jury could

5 For discussion on probative value and the

prejudicial impact on the jury, see United

States v. Hale, 422 U.S. 171, 173-177, 95

S.Ct. 2133, 2135-2137, 45 L.Ed.2a 99 (1975),

and United States v. Impson, 531 F.2d 274, 279

(Sth Cir. 1976), cert. denied, 434 U.S. 1050,

98 S.Ct. 900, 54 L.Ed.2d 803 (1978).

13

have attributed undue significance to the fact

that Mr. Kozachenko offered no explanation to

that tribunal, and thereupon disbelieve Mr.

Kozachenko's trial testimony or simply discount

it as a fabricated story. Compare, Grunewald v.

United States, supra, 353 U.S. at 421-423, 77

S.Ct. at 982-983, 1 L.Ed.2d 931 (1957).°

Mr. Kozachenko's case was a close one and the

evidence of guilt was far from overwhelming as

indicated by the verdict of not guilty in the

year 1976. The one element of the prosecution's

case open to refutation by Mr. Kozachenko was his

likely source of the unreported income. Mr.

Kozachenko's defense was the existence of foreign

gambling proceeds accumulated in pre-indictment

years from which the large expenditures were made,

well corroborated by others. This explanation was

6 See also, United States v. Hale, 422 U.S. 171,

95 S.Ct. 2133, 4&5 L.Ed.2d 99 (1975); United

States v. Impson, 531 F.2d 274, 277 (Sth Cir.

1976), cert. denied, 434 U.S. 1050, 98 S.Ct.

900, 54 L.Ed.2a 803 (1978); United States v.

Henderson, 565 F.2d 900, 905 (5th Cir. 1978);

United States v. Johnson, 558 F.2d 1225 (5th

Cir. 1977); and Walker v. United States, 404

F.2d 900, 902 (5th Cir. 1968).

14

not entirely implausible and there was no direct

evidence to contradict it.

Mr. Kozachenko was further prejudiced by the

closing arguments of both prosecutors that re-

ferred to his silence, thereby attacking Mr.

Kozachenko's credibility by suggesting that he

would have spoken out if he had the accumulated

funds. Both prosecutors noted that "we had to

wait three or four years for this explanation";

"that the $110,000.00 has not come out until now";

"what did he (Mr. Kozachenko] tell you during

trial, something that nobody had heard of before";

and that "He said he won $16,000.00 which he put

in envelopes. That's the first time anybody --

goodness knows he was interrogated many times

about that and this is first time that $16,000.00

has come up". One prosecutor argued that Mr.

Kozachenko's defense was "gambling hocus-pocus”".

(Appendix D).

The conduct of the experienced prosecutor in

asking the improper question leading to Mr.

15

Kozachenko's refusal to accept «r reject the in-

vitation to attend the grand jury, with emphasis

thereon in closing arguments, was intentional,

obviously calculated to prejudice Mr. Kozachenko. |

Despite the fact that the reference to Mr.

Kozachenko's silence was brief and isolated, it

was not harmless, and the curative instruction will

not suffice to cure the error. See, United

States v. Hale, supra, 422 U.S. at 175, n. 3, 95

S.Ct. at 2136, 45 L.Ed.2d 99 (1975) and United

States v. Impson, supra, 531 F.2d at 276 (5th Cir.

1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900,

54 L.Ed.2d 803 (1978).

7 The United States Attorney, Mr. James Rolfe,

in his supervisory capacity over his assistants,

in the United States District Court for the

Northern District of Texas, Dallas Division,

should adhere to the admonishment given by

Cireuit Judge Alvin Rubin in United States v.

Ylda, 643 F.2d 348, 351 (5th Cir. 1981),

calling to the attention of the district judge

and the same United States Attorney the im-

propriety of conduct deliberately designed to

invade a welledefined constitutional right.

16

CONCLI'SION

Writ of certiorari should be granted because

of the conflict and confusion in the United

States Court of Appeals for the Fifth Circuit

that requires resolution by this Court, and be-

cause of the importance of the question to the

administration of justice which has not been

precisely determined by this Court.

For the reasons set forth above, petitioner

respectfully submits that writ of certiorari

should issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

2300 One Elm Place

1015 Elm St.

Dallas, Texas 75202

(214) 748-3433

Counsel for Petitioner

17

CERTIFICATE OF SERVICE

I hereby certify that three copies of the

above and foregoing petition were furnished by

United States mail, postage prepaid, to Rex E.

Lee, Solicitor General, U.S. Department of Justice

Tenth & Constitution Aves., Washington, D.C.

20530, and to Michael L. Paup, Attorney, U.S.

Department of Justice, Tax Division, Appellate

Section, Washington, D.C. 20530, on thisp=yg>

day of September, 1983.

CHARLES W. TESSMER

2300 One Elm Place

1015 Elm St.

Dallas, Texas 75202

(214) 748-3433

Counsel for Petitioner

APPENDIX A-1

IN THE UNITED STATES COURT CP APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1410

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT M. KOZACHENKO,

Defendant-Appellant.

Appeal From the United States District Court

For the Northern District of Texas

( JUNE 6 , 1983)

Before REAVLEY and JOHNSON, Circuit Judges, and WYZANSKI*,

District Judge.

JOHNSON, Circuit Judge:

Appellant, Robert M. Kozachenko, stands convicted of three

counts of tax evasion. See 26 U.S.C. § 7201. He was sentenced

to concurrent five-year terms on each of the three counts and was

fined $30,000. Kozachenko appeals to this Court raising several

points of error. This Court affirms.

I. Facts and Course of Proceedings

° District Judge of the District of Massachusetts, sitting by

designation.

On December 17, 1981, a federal grand jury returned an

indictment against Kozachenko charging four counts of willfully

attempting to evade federal income taxes for the calendar years

1975, 1976, 1977, and 1978. Utilizing the "net worth” method of

Proving income tax evasion, see Holland v. United States, 75

$.Ct. 127 (1954) ,2 the Government maintained that Kozachenko

failed to report taxable income of $12,304.75 in 1975, $31,253.39

in 1976, $43,582.15 in 1977, and $11,785.20 in 1978. Kozachenko

Pled not guilty to the four-count indictment and the case

proceeded to a jury trial. As will be seen, the Government and

i. An excellent summary of the “net worth" method of

proving tax evasion was set forth in Holland v. United States:

In a typical net worth prosecution, the

government, having concluded that the

taxpayer's records are inadequate as a basis

for determining income tax liability, attempts

to establish an “opening net worth" or total

net value of the taxpayer's assets at the

beginning of a given year. It then proves

increases in the taxpayer's net worth for each

succeeding year during the period under

examination and calculates the difference

between the adjusted net values of the

taxpayer's assets at the beginning and end of

each of the years involved. The taxpayer's

nondeductible expenditures, including living

expenses, are added to these increases, and if

the resulting figure for any year is

substantially greater than the taxable income

reported by the taxpayer for that year, the

Government claims the excess represents

unreported taxable income. In addition, it

asks the jury to infer willfulness from this

understatement, when taken in connection with

direct evidence of “conduct, tie likely effect

of which would be to mislead or to conceal.”

Holland v. United States, 75 S.Ct. at 131 (citations omitted).

-2-

Kozachenko presented sharply conflicting accounts of Kozachenko's .

tax activity.

At trial, the Government was met with the task of

establishing Kozachenko's “opening net worth” on January 1, 1975,

the beginning date for the first calendar year of the prosecution

period. Holland v. United States, 75 S.Ct. at 134. The

Government credited Kozachenko with an opening net worth of

$23,000 and based this amount on the testimony of several

witnesses. Thereafter, the Government established that

Kozachenko had expended funds during the prosecution years far in

excess of the amount of funds reported by Kozachenko on his tax

returns.

Having established evidence demonstrating that Kozachenko

expended more money than he reported as income during the

prosecution years, the Government proceeded to introduce evidence

as to a likely source of the unreported income. Holland v.

United States, 75 S.Ct. at 136-37. During the relevant calendar

years, Kozachenko was a buyer with the Army and Air Force

Exchange Service (AAFES), a federal agency operating retail

stores on Army and Air Force installations throughout the

world. According to the Government's theory of the case,

Kozachenko obtained the unreported income from bribes paid to him

by individuals attempting to influence Kozachenko in the

selection of goods purchased for resale by AAFES. Indeed, the

jury was presented with evidence supporting the Government's

theory.

Government witness Bob Hollander, an employee of Bazar,

Inc., a firm that represented manufacturers selling products to

the military market, testified that he paid bribes to Fozachenko

in return for favorable AAFES treatment. Specifically, Hollander

testified that he paid Kozachenko $1600 in March 1977 and the

Government introduced a deposit slip dated March 15, 1977,

reflecting a deposit by Kozachenko of $1500 in his personal

checking account.

David J. Kleinbart, another manufacturer representative to

AAPES, also testified that he paid bribes to Kozachenko during

the pertinent calendar years. Specifically, Kleinbart testified

that he bought Kozachenko a microwave oven in an attempt to

obtain favorable AAFES treatment.

Kozachenko, of course, presented a different theory

concerning his -ource of the unreported income. Kozachenko

denied that he had accepted bribes in his position with the

AAPES, and, instead, maintained that the Government was in error

in crediting him with an opening 1975 net worth of $23,000.

According to Kozachenko, the unreported income spent during the

1975-78 period came from a $100,000 cash hoard of foreign

gambling winnings that he had on hand at the beginning of the

prose-ution period in January 1975.2

2. Kozachenko's use of this defense is by no means novel.

The United States Supreme Court noted the frequent use of this

defense as early as 1954. The Court stated:

Among the defenses often asserted is the

-4-

In other words, Kozachenko argued that he had $112,000 on

hand in January 1975, and that the unreported income reflected

foreign gambling winnings obtained prior to the prosecution

period. Evidence was presented demonstrating that Kozachenko was

a prolific gambler. However, the exact dates and amounts of

Kozachenko's foreign earnings were never demonstrated.

Moreoever, the record reflects that Kozachenko did not inform the

Government of his foreign gambling theory prior to trial.

Apparertly. believing the Government's theory in evidence

rather than the defendant's, the jury returned verdicts of guilty

on three of the four counts. Kozachenko's appeal to this Court

followed.

II. Sufficiency of Evidence

As noted previously, the Government relied upon the net

worth method of proof to establish Kozachenko's tax deficiencies

taxpayer's claim that the net worth increase

shown by the Government's statement is in

reality not an increase at all because of the

existence of substantial cash on hand at the

Starting point. This favorite defense asserts

that the cache is made up of many years’

savings which for various reasons were hidden

and not expended until the prosecution

period. Obviously, the Government has great

difficulty in refuting such a_ contention.

However, taxpayers too encounter many

obstacles in convincing the jury of the

existence of such hoards. This is

particularly so when the emergence of the

hidden savings also uncovers a fraud on the

taxpayer's creditors.

Holland v. United States, 75 S.Ct. at 131.

in 1975, 1976, 1977, and 1978. When proceeding under the net

worth method, the Government must establish the defendant's net

worth at the beginning and end of each prosecution year. It is

an “essential condition" that the Government establish the

defendant's opening met worth with “reasonable certainty.”

Holland v. United States, 75 S.Ct. at 134. Additionally, the

Government must produce evidence supporting the inference that

the defendant's net worth increases are attributable to taxable

income. Id. at 136-37. Hegpce, the Government must either

demonstrate a likely source of taxable income or negate all

possible sources of nontaxable income. See United States v.

Massei, 78 S.Ct. 495 (1958). Pinally, the Government must either

track down all leads provided by the taxpayer that are

"reasonably susceptible of being checked ... [and] if true, would

establish the taxpayer's innocence” or otherwise negate his

explanations. Holland v. United States, 75 S.Ct. a* 135.

Kozachenko asserts that the evidence presented at trial was

insufficient to establish his opening net worth and the likely

source of the unreported income. Also, Kozachenko argues that

the Government failed to pursue the leads provides. by him.

A. Opening Net Worth

Kozachenko argues that the Government failed to establish

his opening net worth with "reasonable certainty,” since the

Government failed to base his opening cash-on-hand on his claimed

$112,000 cash hoard and failed to rebut the evidence

=£<

demonstrating his gambling activities. This Court has reviewed

the evidence in accordance with the principles outlined in

Glasser v. United States, 62 S.Ct. 457 (1942), and has concluded

that the Government adequately established Kozachenko's opening

net worth.

As noted, the Government set Kozachenko's opening net worth

at $23,000. This figure was based on credible testimony. Diane

Lane, Kozachenko's sister, testified that in 1972, 1973, and

1974, Kozachenko returned to the United States on five occasions

and brought with him envelopes containing money. She did not

know, however, how much money was contained in each envelope.

With no assistance from Kozachenko in determining the amounts

brought back, the Government's expert, James Whitfield, assumed

that none of the envelopes contained more than $5000, since

Kozachenko had not filed any forms reporting the transportation

of cash into the United States in excess of $5000, as required by

regulations of the United States Customs. The Government's

estimation in this regard ultimately turned out to be generous to

Kozachenko, since he admitted at trial that he was aware of the

Customs regulations and actually had brought back only $4500 on

each of the five occasions. Nevertheless, the Government

cred: 2d Kozachenko with $25,000 net worth.

Witness Whitfield then deducted $5000 on the basis of Diane

Lane's testimony that she deposited $5000 of the money brought

from Europe in her own bank account. Finally, Agent Whitfield

added $3000 to Kozachenko's opening net worth, the highest amount

ae

Kozachenko had stated was his opening cash-on-hand in the

interviews with the Internal Revenue Service (IRS) prior to

trial. Undoubtedly, this evidence established Kozachenko's

opening net worth with reasonable certainty, so that the jury

could have concluded that the Government had established

Kozachenko's opening net worth beyond a reasonable doubt. See

Holland v. United States, 75 S.Ct. at 137.

Of course, Kozachenko maintains that the Government's

opening net worth figure is not supported by sufficient evidence,

since it excludes the $100,000 allegedly won in foreign gambling

casinos. We disagree.

Initially, we note that Kozachenko never brought his foreign

gambling theory to the attention of the IRS prior to trial.

During the time period in which the IRS was investigating the

case and interviewing Kozachenko, he maintained consistently that

his opening net worth was between $2000 and $3000. Other factors

also detract from the reasonableness of Kozachenko's theory.

In October of 1975, Kozachenko applied for a loan to finance

a home costing approximately $50,000. The loan application and

financial statement filled out by Kozachenko, however, listed

savings of only $16,791 and represented, though falsely, that he

had £°0,000 in a German bank. Kozachenko's failure to list the

$100,000 cash hoard belies his allegation of the hoard's

existence. See United States v. Dwoskin, 644 F.2d 418 (Sth Cir.

1981). Moreover, Kozachenko's borrowing of approximately $20,000

to purchase the home also suggests the absence of the cash

hoard. See United States v. Schipani, 362 F.2d 825, 830-31 (2d

Cir. 1966), vacated on other grounds, 385 U.S. 372. It is

reasonable to assume that one having $100,000 in cash earnings

would spend that money before borrowing money and incurring an

additional interest expense. See United States v. Boulet, 577

F.2d 1165, 1170 (Sth Cir. 1978), cert. denied, 439 U.S. 1114

(1979).

In sum, we simply cannot conclude that the Government failed

to establish Kozachenko's opening net worth with reasonable

certainty. The Government's proof was based on credible evidence

which established Kozachenko's opening net worth at $23,000 with

reasonable certainty and the jury certainly could have relied

upon this evidence and concluded that the Government had

established its case beyond a reasonable doubt. When the

evidence is viewed in the light most favorable to the “overnment

and all inferences are resolved in favor of the jury's verdict,

it becomes clear that the Government's proof satisfies the

standards for review of insufficiency of evidence claims set

forth in Glasser v. United States.

B. Likely Source of Unreported Income

Kozachenko next contends that the Government's proof of the

likely source of the unreported income was insufficient.

The Government's proof demonstrated that Kozachenko

solicited and received bribes while employed by AAFES as a buyer

during relevant tax years. The testimony of Hollander and

=9a

Kleinbarct demonstrated that Kozachenko not only had the

opportunities to obtain bribes during the relevant time period,

but that Kozachenko, in fact, seized upon this opportunity.

Kozachenko testified that as a buyer for AAFES he had hundreds of

contacts per year with fifteen to twenty firms representing

manufacturers and 100 to 150 vendors. Simply put, the jury had

more than ample evidence to conclude that bribes were a likely

source of Kozachenko's unreported income. See United States v.

Tunnell, 481 F.2d 149, 151-52 (Sth Cir. 1973); cert. denied, 415

U.S. 948 (1979); and Untied States v. Costanzo, 581 F.2d 28, 33

(24 Cir. 1978), cert. denied, 439 U.S. 1067 (1979).

Cc. Government's Investigation of Kozachenko's Leads

Kozachenko contends that the Government failed to pursue the

leads he provided them concerning his gambling winnings.

However, as noted, Kozachenko never claimed a cash hoard of

gambling winnings until he testified at trial. Indeed, he told

IRS Agent Santowski that his cash-on-hand was only $2000 to $3000

at the beginning of the prosecution period in January 1975.

Moreover, although Kozachenko made vague references to his

gambling activities prior to trial, he did not identify che

casinos at which he gambled, the dates on which he gambled, or

even the amounts he won or lost on each occasion. Since

Kozachenko failed to provide leads reasonably narrowing the

search for his claimed cash hoard, we cannot hold that the

Government failed to investigate adequately these vague leads.

See United States vy. Schafer, 580 FP.26 774, 779 n.6 (Sth Cir.

1978), cert. denied, 439 u.. 970 (1978). Finally, for the

reasons noted in part II(A) of this opinion, we have substantial

doubt as to the reasonableness of Kozachenko's gambling lead.

Nevertheless, we find that the IRS adequately pursued all "leads

reasonably susceptible of being checked." Holland v.United

States, 75 S.Ct. at 135-36.

III. The Bribery Testimony

At trial, Kozachenko objected to the testimony of Government

witness Bob Hollander concerning the AAFES bribes, on the grounds

that the prejudicial effect of the defendant's prior bad acts

outweighed the relevancy of the testimony. The trial court

concluded that the evidence was indeed prejudicial, but admitted

the evidence on the issue of Kozachenko's likely source of

unreported income and his intent. The trial court's ruling is

affirmed.

Ped.R.Evid. 403 allows the district court to exclude

relevant evidence if the district judge concludes that the

probative value of the evidence is "substantially outweighed by

the danger of unfair prejudice ...." The trial court's ruling on

the issue will not be overturned, however, absent an abuse of

discretion. United States v. Enstam, 622 P.2d 857, 865 (Sth Cir.

1980), cert. denied, 450 U.S. 912 & 451 U.S. 907 (1981).

As noted previously, the Government was required to

introduce evidence demonstrating the likely source of

ole

Kozachenko's unreported income. Bob Hollander's testimony was

crucial to the prosecution's case and strongly indicated that

Kozachenko's likely source of income was money received from

AAFES bribes. Although the testimony was undoubtedly prejudicial

to Kozachenko's character and reputation, the testimony's

probative value was not substantially outweighed by this

prejudice. See United States v. Windham, 489 F.2d 1389, 1391

(Sth Cir. 1974).

We also note that the district judge substantially removed

any possible likelihood of unfair prejudice through able

instructions. The district judge instructed the jury during

Hollander's testimony and in the charge to the jury that the

Gefendant was charged only with income tax evasion, that evidence

of the receipt of a bribe was not admissible as evidence of guilt

as to income tax evasion, and that the evidence was admissible

only to show a likely source of unreported income and the

defendant's intent to defraud the IRS.

IV. Testimony of IRS Agent James Whitfield

Kozachenko next asserts that the testimony of Government

witness Agent Whitfield invaded the province of the jury, and,

hence, should have been excluded. We disagree.

IRS Agent Whitfield was the prosecution's chief expert

witness. Whitfield testified concerning the IRS' computation of

Kozachenko's income tax liabilities and necessarily summarized

the sources of the figures making up the Government's case

=13~

against the defendant. See Myers v. United States, 356 F.2d 469,

470 (5th Cir. 1966), cert. denied, 384 U.S. 952 (1966); FPlemister

v. United States, 260 F.2d 513 (Sth Cir. 1958).

Although Agent Whitfield did state that he did not believe

the assumption that Kozachenko's opening cash-on-hand might be

$58,000, he did not say that he disbelieved Diane Lane's

testimony as to the amount of cash contained in the envelopes

Kozachenko brought with him from Europe. In fact, Whitfield

testified that he reached the $5000 per envelope figure on the

assumption that Kozachenko would have complied with Customs’

regulations and reported any hoard of cash over $5000. Moreover,

Diane Lane admitted that she did not know the amounts of money

contained in the envelopes. The trial court certainly did not

abuse its discretion in allowing the agent's testimony.

Purthermore, we again point to the trial court's able

instructions. The district judge informed the jury of the role

of an expert witness and instructed the jurors that they were the

sole determiners of the witnesses' credibility.

V. Cross-Examination of Defense Witness Sala

Kozachenko called Mike Sala to corroborate his testimony

demonstrating a proficiency for winning large amounts of money in

foreign casinos. During cross-examination of Sala, the

prosecutor questioned Sala as to whether he too had paid bribes

to AAPES officials. The trial court ultimately allowed the

Cross-examination, accepting the prosecution's contention that it

«13<

was relevant on the issue of Sala's credibility, since bribery

constitutes dishonest conduct admissible under Fed.R.Evid. 608(b)

on the issue of the witness’ “character for truthfulness.”

Fed.R.Evid. 608({(b). The trial court's ruling is affirmed, since

the evidence undoubtedly was probative on the issue of witness

Sala's veracity as a witness. The trial court's ruling does not

reflect an abuse of discretion, but rather, reflects reasoned and

considered judgment.

VI. The District Court's Charade

In Kozachenko's “points of error" Nos. 5-9, he attacks

various portions of the trial court's charge. We note, that

Kozachenko withdrew points of error Nos. 8 and 9 at oral

argument. Basically, Kozachenko contends that the trial court

erred by refusing to submit several instructions on defensive

theories advanced by Kozachenko at trial.

Initially, we note that the district court is not required

to instruct the jury in the exact language requested by

counsel. United States v. Scheffer, 463 F.2d 567, 573-74 (Sth

Cir. 1972), cert. denied, 409 U.S. 984 (1972). The trial court's

instructions are adequate if they are “sufficiently precise and

specific to enable the jury to recognize and understand the

Gefense theory, tested against the evidence presented, and make a

definitive decision whether, based on that evidence and in light

of the defense theory, the defendant is guilty or not guilty.”

United States v. Barham, 595 F.2d 231, 234 (5th Cir. 1979). We

=—ye

have reviewed each of: Kozachenko's attacks upon the trial court's

charge and conclude that the trial court's charge adequately

presented all of the defense's theories with evidentiary

foundation legally sufficient to acquit the accused, if believed

by the jury. We conclude that the trial court's charge was

adequate. United States v. Lewis, 592 F.2d 1282, 1285 (Sth Cir.

1979).

VII. The Government's Examination of Agent Santowski

During direct examination of IRS Agent Santowski, the

prosecutor asked: “°What are the facts as to whether or not Mr.

Kozachenko was invited to appear before the grand jury and

present his side of the story?" Defense counsel's immediate

objection to the question was sustained, the witness was not

allowed to answer the question, and the trial court instructed

the jury to disregard the question, but refused to grant a

mistrial. The trial court's ruling is affirmed. Although it is

far from clear that the prosecution's question was proper, it is

clear that the prejudicial effect of the question did not warrant

a mistrial in light of the district court's adequate instruction

to the jury to disregard the improper question. See United

States v. Ylda, 643 F.2d 348, 350-51 (Sth Cir. 1981). Again, the

question was not answered and the jury was immediately instructed

to disregard the question.

VIII. Juror Douglas

-15<-

In Kozachenko's final point of error, he contends that the

district court erred by not excluding juror Douglas for cause.

We disagree.

During the voir dire examination of prospective jurors, the

panel was asked the following question: "The jury is going to

hear some testimony about income that allegedly came from

gambling, legalized gambling, do any of you have any personal

feelings about gambling that would make you biased against the

defendant?” Dorothy Douglas indicated that she was opposed

personally to gambling. However, after the trial judge explained

that Kozachenko was not on trial for gambling, Douglas indicated

that she could "listen to the evidence and listen to the

witnesses and exhibits and put ... [her] personal feelings about

gambling and drinking and anything else aside and return a

verdict ... for the government or for the defendant based only on

the evidence." Douglas assured the trial court that she would

not vote to convict Kozachenko just because he had gambling

money.

The record clearly reveals that juror Douglas adequately

assured the trial court of her impartiality to the extent that

the trial court's refusal to exclude her for cause does not

represent an abuse of the broad discretion given the trial court

in determining the potential bias of prospective jurors. See

United States v. Covey, 625 F.2d 704, 707 (Sth Cir. 1980) and

United States v. Nell, 526 F.2d 1223, 1229 (Sth Cir. 1976).

-16-

IX. Conclusion

This Court has reviewed all of the defendant-appellant's

points of error and has concluded that the district court's

judgment must be affirmed.

AFPPIRMED.

-37-

APPENDIX B (A-2)

IN 1 . UNITED STATES COURT OF . 2EALS

FOR THE FIFTH CIRCUIT UJ. S. COURT OF APPEALS

FILED

No. 82-1410 JUL 2 9 1983

UCHEAU

GILBERT E GANTT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT M. KOZACHENKO,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING

( JULY 29, 1983 )

lefore REAVLEY and JOHNSON, Circuit Judges, and WYZANSKI*,District Judge.

ER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

ibove entitled and numbered cause be and the same is hereby

De wie D

fertrict tAne of the Nistrict of Massachusetts, sittinae hv desianation.

482

APPENDIX C (A-3)

Q. Yes, sir. All richt. Let me ask one more

question atout that then and I'll cet off of it. Did the

rirth of that child have any influence udon your actions

towards Kozachento whatsoever as recards timine your visit or

Gelayine it or speedine it uo?

A. No, none whatsoever.

Q. All richt. Did you ever subrit a list of written

questions to Kozachenko?

A. Mr. Tessmer broucht that up yesterday. And when I

left the investication, that last contact I had at Mr.

Tessrer's office was my last outside contact on it, but I

recommended that we not issue a list of written questions to

Boh for him to study and then to respond to.

Q. Well, any particular reason why you didn't?

MR. TESSMER: We object to that as calline

for the operation of his mind and his opinion is not bindine

upon this defendant.

THE COURT: I don't really think we need to

co into that, Mr. Alexander.

MR. ALEXANDER: All richt, sir.

Q. What are the facts as to whether or not Mr.

Kozachenko was invited to attend the crand jury and present

his side of the story?

MR. TESSMER: We object to that question,

Your Honor. That's prejudicial, improper, has no place in

FEDERAL COURT REPORTERS

24

25

483

APPENDIX C

this case. It is a direct corment upon the Defendant's Fifth

Arendrent richts under the Federal Constitution. I ask that

the question te stricken and Mr. Alexander Fe admonished not

to ask the question acain and the jury te instructed to

totally disrecard it.

THE COURT: Mr. Alexarmier.

MR. ALEXANDER: My response to that is it was

opened up by Mr. Tesseer's questions to Georce Santowski

yesterday.

THE COURT: I think not. I think the

objection is cood.

MR. ALEXANDER: Very well.

THE COURT: The jury is instructed to

disrecard that last question.

MR. TESSMER: Your Honor, in view of the

prejudicial nature of the question, I respectfully request a

eistrial at this tine.

THE COURT: Overruled.

QO. Now, during your investication of Kozachento, did

you attemot to obtain his tax returns ‘or years prior to 1975?

A. Yes, sir, I did.

Q. And were you able to set ther?

A. I was able to get the 1973 and the 1974 tax

returns. The earlier years had been destroyed.

Q. All richt, sir. Now for the years 1973 and 74,

FEDERAL COURT REPORTERS

13ii

APPENDIX D (A-4)

st* here ail this tine and wait for tne story.

Of course, they said, Mr. Santows*:, write us

questicns and we will answer ther. They *now it's 2 tax

investication. Mr. Tessrer isn't sorchody just out of law

school. They know what it's about. They now ‘t's 2 face

question there. He could come in to mad dog Sentowski *n4

Sey, loot, here's the story, I forgot about the $120,000.00

and I brought it back. It's very sirple to do, but, no,

Santows'i didn't out his questions down in writing so we had

to wait three or four years for this explanation.

IT tell you I think the story is atsurd, but what I

thir’ doesn't matter, it's what you think hased on the

evidence. It's going to be uo te you to decide that. If you

think this is all plausible, then you're going to have sore

Aifficulty finding the defendant guilty. If you thin’ this

is unbelievably absurd from the garbling chios to the loan

application where he lied four tires to all this other stuff,

if you believe that, then it shouldn't tare you very long at

all.

Thank you.

THE CCURT: Thank you, “2. willfarsor.

MR, TESSMERs May it slease she court. vould

Your Honor ocleese tall re in 15 ninut<3?

THE COUPT: Yes.

LE 2 © 6) eo eee — ome ee ne ee we

FEDEPAL COURT REPCRYERS

24

25

1350

APPENDIX D

consistent vattern of understaterent of incore, that cer te

considered. Scone, if there are false st.t-rents or

omissions to the investicating officers. tow, you realize

that un orission in an interview to 4 Goverrrent agent,

agen?*s, two of ther, can te just 3s faise as a false

Staterert. So when you consider that the $110,000.00 has noe

come out until row, and without going into all the little

things that the defendant oritted er falsified, I sutmit to

you that under that criter!a alone that the Government has

proved the willfulness of the defendant's act in evading and

atteroting to evade income tax. The third criteria is the

handling of financial affairs in a ranner which avotds the

usual records such as extensive dealing in cash, dealing in

cash {n a manner that there would be no bank records

availatle. Then the fourth criter{a that the court will tell

you in his charge is the failure to suoply an accountant with

eccurete and corvlete inforration.

I will call to your attention the testinony of mr.

Bol Lane, the certified oublic accountant. You will recall

that he wes the first witress. You will recall he toi4 you

that in i976 that the defendant care to hir and said { need

you to helo me fix uo and file ry 1975 incore tax return.

Paraorrasing what Lane seid, why did you cere to re? what's

the orotler? Lane told you the defendsnt said, well, I had

genbling income tn Germany for 1975. How ruts was {t? The

PEDERAL COURT REPORTERS

tad

24

25

APPENDIX D

to the United States as art objects. I'll refer you ta these

Careras &hst he shicoed hack. Do you recall realize the

Collar value that was volseced on these csreras. Talk about

whether anybody took brites or not, to re, now fT ar entitled

to rake whatever reasonable deduction «an? logical inference

that I cere to, I am oerritted that urder the law, you nay

Aisagree with me, but I tell you that the hest oroof of

bribery, to me basing it as a reasonable deduction and

logical inference from the testimony and the evidence that

you have got here, that list of careras alone would cause nme

to convict hin of bribery. He's not being charged with

bribery in this case, but that's one of th sources of incone

which the Governrent can coint out to you. You look at that

list of cameras. There is not -- I subrit to you hasede uvon

the evidence that there is such a duplication of exvensive

cerera equionent, lens and accessories, that not even a

orofessional ohotogravher would have that sort of thing as

wersonal oroverty. And what was he tuying when he was over

there, he wis buying cermeras. So Tf submit to you that is

sorething to think ahout. Don't base your verdict on it

alone, tut *think about that when you're considering the

evidence in this case.

Now, what did he tell you “uring the trial,

sorething that nohody had heard of tefornm. Santowsbi asked a

question to hir, Bok, where did the roney come fror? You

FEDERAL COURT REPORTERS

APPENDIX D

Now, re -«trenots today when he was testifying, he chanoed? his

story corvletely. tie said he won $16,900.00 which he out in

the enveloces. That's the first tine anytoty -- gcodness

knows he was interrogated rany tires atout that and this is

first tire that $16,060.00 has core uo.

Now, let's get hack to the $110,000.00 that he had

when he was his shiooing household effects. He told you that

he sent $10,000.90 in cash by air. He alse told you that he

trusted $100,000.00 in a shioment of furniture. And you

heard the testimony that he cave and thet others gave about

how hazardous it is, how that shiorents can be lost, how the

containers can be broken into he and broken into and

destroyed. Yet, he lists all the other household goods that

he shiooed by iter. He out down the cost, he out the

insurance value on the list and yet he would have you believe

that he would trust $100,000.00 in cash to a shiopent lite

that. He did not list it, he did not declare it to anybody,

he did not insure that $100,000.00. Seo, he was, accordine to

hin he wos willing to rigk that entire £100,000.00 to get it

back to the astates in that ranner. f suimit to you that that

is not locical and that the whysical fects do not support the

Aefendaon*'s version. Nebody, tu: noboty exceot hin knows.

anything vtout thar $110,000.%.

Now, Mr. Tessmer os introduced what I call the

ghost run defense. For exarole, if [{ snould tell you, ladies

FECERAL CCURT REPORTERS

24

25

139?

APPENDIX D

this !s wiat hapnoened. Gnce again, hey, { contr know, could

be, T don’t thine so, 1 %3 confused.

By the way, if you rererter Kathy wezinab, sre had

this conversation with the defendent whrre he was talbing

atiout how much he won over in Eurooe, iia ssid, well, 1 won

almost enough to buy ry nouse and the house is around

$50,000.00 or so. And the figures that Mr. whitftfleld cane uo

with so far as the cash on hand and his ogarbling winnings and

so forth come out to eroun? forty sorething thousand dollars,

just about what the defendant told Ms. wozinak that he had

won over there, but she is orobatly wrong too, just lite the

acceuntant and Mr. Santowski and everybody else. Everytody

is wrone.

We cone down to what I like to refer to as the

garbling hocus-pocus. That's all these oictures and al)

these chins. Hey, this is great stuff. There {s no disoute

that he was over there. We know he was garhling. He tol4

Santows’i that. There is no big dispute about it. Nobory is

arguing that he wasn't gambling. What 4o we need all this

for? This is neat to loot at, hut what does {re orove. ‘what

Aoes this oicture orove so far as what he won or what he lost,

what he nad in cash on hand? what does this mesn? What does

this have to 4o with cash on hand? Wwe know he garbled. What

is this? [r's just a bunch of hocus-notus. The witnesses

that core in, you could have five thousand witnesses sit uo

FEDERAL COURT REPORTERS

1310

APPENDIX D

Then we have the Banice Bazar Ory buck of tar

things that, {f think, the defendant tought over in Euroor,

The story on this ts that he buys these different iters which

he nanes for you and he has and there's no question about

thot. For the next three or four years he's wandering around,

how can I pay for this, how can I oay for this. He doesn't

get any receiots. This is on his mind for three years, three

er four years, how can I cay for this, how can I pay for this.

Pinally -- by the way, the investigation out there, which I

bnow you have heard about, is rolling along. He's being

investigated. So what happens? He slios this money into a

box and gives it to Hollander or to Cross to have it shioped

back to Banice Bazar, so he can finally get this heavy load

he has on his mind off. He's finally oaid after four years

cash, no note, hardly no nothing, he's finally paid off this

stuff that he bought four or five years ago. That !{s absurd.

That is absurd. If you believe that, don't leave the jury

box, soy he's innocent {!f you believe that story.

Ladies and gentlemen, [I sutrit te you that the

detendant's story and the gambling hocus-pocus, whatever

that's worth, I submit =o you that's ‘incredible. Somebody is

going to forget that he trought back $100,000.00. te was

confus.c the first day with mad dog Santowski. He's confused

the next day, the dey after that, the day after that, the day

after thet and so forth for three or four years. We had ro

PEDERALC COURT REPORTERS

f Bor toxer

re