# Petition — Kozachenko v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 962

## Text

488° |"

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0484%3A1. Public record. Not legal advice.