Petition — Glassey v. United States

83-8326

Office - Supreme Cou

° rt, U.

FILED si

nb NOV 21 1983

‘Bexas “™ U. STEVAS

IN THE Senmneenanss Lil

SUPREME COURT OF THE UNITED STATES

October Term 1983

JOHN R. GLASSEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United

States Court of Appeals

for the Seventh Circuit

PETITION FOR CERTIORARI = CRIMINAL CASE

CHARLES R. THOMAS, P.C.

417 Court Street

Pekin, IL 61554

Telephone: (309) 347-4194

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

I

Was a fair trial afforded to

defendant pursuant to Constitutional

requirements when the court appointed

counsel did not represent defendant

competently; when there were business

records accepted into the record without

proper foundation; when there were

improper statements made by the

prosecution; and when there was undue

prejudicial effects because the sole

rebuttal witness, being a character

witness who was confined to a wheelchair,

was improperly questioned?

II

Did the District Court properly

sentence defendant to consecutive terms

when only one set of facts actually

existed to constitute a crime and

imposition of a sentence?

TABLE OF CONTENTS

PAGE

Opinions eee Se ee re ee ee fy

Jurisdictional Grounds

In This a ee ee:

Statutory and Constitutional

PPOVISIONS. ccocccccccccccccccceVis Vill

Statement of CRGGs ccscovocceveosccsoceseekay

PRAYE cco ccccccccccccccccccccccccco eR yg XVI

Reasons for Granting the Writ........1=23

DOP SePk a See bees enececveccocceccs conwant

A.

D.

Opinion and Judgment

of the Court of Appeals

for the Seventh Circuit,

dated August 23, 1982........25=28

Order of the Court of

Appeals for the Seventh

Circuit denying Petition

for Rehearing dated

October 14, 1983, and

Stay of Mandate pending

Petition for Certiorari......29=-32

Judgment on the verdict

by the United States

District Court for the

Central District of

TRAERSEABc ccccccccovccccooceceeseeee

Statutory previsions

cited in Fable ceccecccocecooos ee

ii

TABLE OF AUTHORITIES

CASES

PAGE

Bell v. United States of

America, 349 U.S. 51,

99 L.Ed. 905, 75 S.Ct.

ee RE en eee

Berger v. United States of

America, 295 U.S. 75, 79

L.Ed. 1314 ki. ree epee ret ry

Carnley v. Cochran, 369 U.S.

506, 8 L.Ed. 2d 70, 82 S.Ct.

88y ULE Ss all bk og sd wean e Oa ere

Donnelly v. DeChristoforo,

416 U.S. 637, 40 L.Ed. 2d

431, 94 Sete 1868 CA Oléanenuseneeevae

Gannett Co., Inc. v.

DePasquale, 443 U.S. 368,

61 L.Ed. 24 608, 99 S.Ct.

2898 ED che tana a is tb ng an a iy.y 60s 0 aioe ed eon

Ladner v. United States of

America, 355 U.S. 169, 3

L.Ed. od 199, 79 S.Ct. 209

VEE Pa eib Welds eee abn we thes DK

Lyda v. United States, 321 F.2d

788 (9th Cir., le rr err rr ees

O'Brien v. United States,

-2d 535 vacated on

other poe 391, U.S.

367, 8 $.Ct. og PAP er

iii

PAGE

People v. DeFrates, 395 I1ll.2d

, . . De tresereh awed thocccnan

People v. Crocker, 25 I11.2d

52 SON A te a oe a ee ae

United States v. Benson, 487

Vane STO ASE ULFs, VIPS céccecectuscst

United States v. Buckley, 379

—¥.2d Gol, cert. den. 389

U.S. 929, 88 S.Ct. 289, 19

L.Ed. 2d 280 (7th Cir.,

Ug oP er ee ee errs | i

United States v. Callanan,

@ th Pe, hy oD en

United States v. DeCoster,

D. oe EP es

RO eer ee Ne he

United States v. DeRosa,

548 F.2d 464 (3rd Cir.,

Oo SEES SE cre a eee ners o,

United States v. Glanton,

° 1th Pes

TORR ASbGGEDED ORES EEeD Sed cecveccdeetOn te

United States v. Naylor,

566 F.2d 942 (5th Cir.,

NG IE Si CA CE re RT

United States v. Pinkney,

543 F.2d 908 (D.C. Cir.,

hc a adie Bhat dikes bee w 6 bib uo ab eee

U.S. v. Powe, 591 F.2d 833

appeal after remand 627

F.24 Nite WG-d eb ir O06 00668 6% ee eee

iv

PAGE

United States v. Reed, 647

F.2d 675 (6th Cir., gf RR a IS

United States of America v.

~~ Socony-Vacuum Oil Company,

370 U.S. 150, 849 L.&d 1129

CTS SE ccc ccescccteccccccccccccccccceG 9

Whalen v. United States,

WG5 U.S. 684, 63 L.e&d 2d

715, 100. S.Ct. 1832 (1980)....000-17,18

STATUTES

Title 18, United States Code,

Section TOES wae bOb ds 6 Reece ececcceckEg Rae

CONSTITUTIONAL PROVISIONS

U.S. CONSTITUTION, AMENDMENT V...ee001,11

U.S. CONSTITUTION, AMENDMENT VI....--1,11

OTHER AUTHORITIES

McCormick, Evidence

(2nd Edition, PT ans cole 1bese cee

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Seventh Circuit

is officially reported at 715 F.2d 352

(1981), and annexed as Appendix A.

(infra, p. 25) The order entered by the

Seventh Circuit denying the Petition for

Rehearing is annexed in Appendix B. (infra

p. 29) The opinion of the United States

District Court for the Central District of

Illinois (Appendix C, infra, p. 33) was

not reported.

JURISDICTIONAL GROUNDS IN THIS COURT

The judgment of the Court below

(Appendix A, infra p. 25) was entered on

August 25, 1983. A timely Petition for

Rehearing was sougnt but denied on October

14, 1983. The jurisdiction of this Court

is invoked under 28 U.S.C. Section 1254

(1) and Rule 17(a) and (c) of the Rules of

this Court.

vi

STATUTORY AND CONSTITUTIONAL PROVISIONS

CONSTITUTION OF THE UNITED STATES

U.S. CONSTITUTION Amend. V states:

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a Grant

Jury, except cases arising in the

land or naval forces, or in the

Militia, when in actual service in

time of War or public danger; nor

shall any person be subject for the

same offence to be twice put in

jeopardy of life or limb; nor shall

be compelled in any nor shali 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; nor shall private property be

taken for public use, without just

compensation.

U.S. CONSTITUTION Amend. VI states:

In all criminal prosecutions,

the accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the State and

district shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the Assistance of

Counsel for his defence.

vii

STATUTES INVOLVED

Title 18 Section 1014 cited in full

in Appendix D.

viii

STATEMENT OF THE CASE

The facts necessary to place in

their setting the questions now raised

can be briefly stated below:

A. COURSE OF PROCEEDINGS AND

EXISTENCE OF JURISDICTION

On October 13, 1982, in a cause

pending in the United States District

Court for the Central District of

Illinois, Peoria Division, entitled

The United States of America v. John

R. Glassey, Criminal No. 81-10008,

petitioner was found guilty by a jury on

all ten counts for an indictment charging

violations of 18 U.S.C. §1014 which

creates a crime for making false state-

ments to a federally insured banking

institution. (App. A) The Court imme-

diately entered judgment. (App. A)

On December 3, 1982, the District

Court denied a Motion for New Trial and

then sentenced petitioner to two years

ix

imprisonment on Counts I and II to run

consecutively. Two year sentences on

Counts III through IX were imposed to run

concurrently with that of Count I. The

Defendant was placed on probation for

three years on Count X.

This judgment and sentence was

affirmed by the Court of Appeals for the

Seventh Circuit, United States of America

v. John R. Glassey, No. 82-2998, 715 F.2d

352 (1983). A Petition for Rehearing was

denied October 14, 1983. (App. B) A

Motion for Stay of Mandate pending

Petition for Certiorari was granted

October 26, 1983. (App. B)

B. RELEVANT FACTS CONCERNING THE

UNDERLYING CONVICTION AND TRIAL ERRORS

DURING PETITIONER'S TRIAL FOR MAKING

FALSE STATEMENTS TO A FINANCIAL

INSTITUTION WHICH WAS INSURED BY THE

FEDERAL SAVINGS AND LOAN INSURANCE

CORPORATION.

Prior to the date of the

indictments, petitioner had been

secretary and part owner of Colossus,

Inec., which had been engaged in the

business of general contracting since

1971 and had over 15 homes under

construction. (Tr. 169) In May of 1981

the Peoples Savings and Loan of

Chillicothe (Iliinois), the lending

institution, sent a representative, who

was also a social friend of petitioner's,

to have petitioner sign lien waivers and

subcontractors affidavits which indicated

that petitioner had paid the subcon-

tractors. All monies had been paid

out on all the loans in question.

The whole transaction took a few minutes.

Petitioner maintained that he signed

the statements only because the

representative who brought the lien

waivers out was a good friend and he

wanted to be helpful.

xi

At trial, the prosecutor testified

to the jury in opening statements by

stating, "I will explain a little bit to

you of what I learned" (Tr. 10) and as to

the incriminating evidence against

petitioner and was extremely argumen-

tative. Further, he proceeded to

inflame the jury during cross-examination

of petitioner during defendants case by

asking such questions as "Would you say

your reputation among the people you deal

with for being honest is a good one?",

(Tr. 193) The objection was sustained but

no admonishment to the jury was made.

Prosecutor also allowed and brought

forth the witness Jerry Conger, who is in

a wheelchair, to testify as the sole

rebuttal witness. He was offered as a

witness as to the reputation of

petitioner in the community. During the

conference in chambers regarding Conger's

testimony, Conger was left in the court

xii

room with the jury and petitioner.

Although prosecutor was warned to limit

the testimony to general reputation by

Judge Mihm, (Tr. 228) the prosecutor

still had the witness testify only as to

his specific opinion of petitioner.

The defense counsel during trial

informed the jury that he was appointed

counsel. (Tr. 17) He did not require the

prosecutor to establish a proper

foundation for business records presented

as evidence. (Tr. 44-47) He allowed a

flagrantly hearsay statement go by

without objection which stated that liens

had been filed. (Tr. 54) He did not

object to the testimony of Jerry Conger

again once it became obvious that the

testimony was merely a personal opinion

of petitioner specifically even though he

was given a clue by Judge Mihm when he

stated, "I think the potential exists for

a mistrial". (Tr. 227) There never was a

xiii

Motion for Mistrial.

The jury trial lasted two days. The

jury deliberated approximately two hours.

(App. )

EVIDENCE OF JURISDICTION BELOW

Petitioner was charged and convicted

in the District Court for the Central

District of Illinois of ten (10) counts

of making false statements to a federally

insured lending institution under federal

law pursuant to 18 U.S.C. 1014. Federal

jurisdiction was exclusive under this

statute.

xiv

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

JOHN R. GLASSEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Seventh Circuit

To the Honorable Chief Justice and

Associate Justices of the Supreme

Court of the United States

John R. Glassey, the petitioner

herein, prays that a Writ of Certiorari

issue to review the judgment and order

entered by the United States Court of

Appeals for the Seventh Circuit on August

23, 1983, rehearing denied October 14,

1983, affirming petitioner's conviction

in the United States District Court for

XV

the Central District of Illinois, Peoria

Division.

xvi

REASONS FOR GRANTING THE WRIT

I

THE DECISION OF THE SEVENTH CIRCUIT

COURT OF APPEALS HAS DENIED THE

PETITIONER HIS CONSTITUTIONAL RIGHT TO A

FAIR AND UNPREJUDICIAL TRIAL IN LIGHT OF

THE MANY GROSS AND CRITICAL ERRORS

EVIDENCED AT TRIAL.

A person accused of any crime is

entitled to a fair trial, by jury if he

chooses. This basic principle is

safeguarded by the Constitution of the

United States of America, specifically in

part by the Fifth and Sixth Amendments.

The petitioner herein did not receive

this elementary right. Rather, because

of improper evidentiary matters,

prosecutorial misconduct, and

incompetence of court-appointed counsel,

petitioner was wrongfully convicted of

making false statements to a lending

institution for the purpose of

influencing them to make a loan,

The worst of the evidentiary matters

depriving defendant of his right to a

fair trial was the flagrant and

inflammatory testimony of Jerry Conger

who was confined to a wheelchair and

testified as to his personal opinion of

Mr. Glassey. (Mr. Conger had no other

connection with the case.) If evidence is

overly prejudicial, it should not be

allowed to appear before a jury.

People v. DeFrates, 395 I11.2d 439, 70

N.F.2d 591. Lyda v. United States, 321

F.2d 788 (9th Cir., 1963) A defendant's

guilt must be established by legal and

competent evidence, uninfluenced by bias

or prejudice raised by irrelevant

evidence. People v. Crocker, 25 I11.2d

52 (1962)

Conger was wheeled into the court

room and after stating his name, address

and employment, gave only the following

testimony, none of which was objected to.

Q

oOo >» O

Now, do you know the

Defendant in this case, John

Glassey?

Yes, I do.

How long have you known him?

I believe it was July, 1980.

Have you had any business

dealings with him and with

Colossus, Incorporated?

Yes, I have.

When were these business

dealings?

They began, I believe, in

September, 1980.

And continued until when?

Until July, 1981.

Based upon these business

dealings do you have an

opinion as to his character

for truth or untruthfulness?

Yes, I do.

est

Q Would you tell us what that

is?

A 1 found Mr. Glassey to be

very untruthful on many

occasions.

Conger was the sole rebuttal witness for

the Government and the last one of the

trial and the last one mentioned by the

prosecution in the closing rebuttal

argument. Mr. Glassey's character had

never truly been brought into issue and

even if it could have been, the issue

should have been one of general

reputation in the community and not

specific. The witness testified that he

found Mr. Glassey to be untruthful on the

basis of business dealings with him not

that his reputation in the general

community was that of an untruthful

person. Mr. Parker, Defendant's

appointed attorney, did not object to

these questions although he had raised an

objection earlier with Judge Mihm. The

judge had warned the prosecutor that

Conger's testimony must be a general

statement of reputation in the community

"since they were close to a mistrial".

(Tr. 227) Nevertheless, the exact type

of testimony that was feared by both

Judge Mihm and Mr. Parker was entered

into evidence, yet nothing was done. The

sole implication to the jury then was

that the Defendant lies to paraplegics.

The only thing that could have been more

inflammatory would be if it had been a

widow in the wheelchair instead of Mr.

Conger.

A judge has a duty to step in if he

recognizes that a gross error has been

made. McCormick's Hornbook on Evidence,

2nd Ed., p. 129 (n.1)(1972). In this

instance, the error was made and even

foreseen by the trial judge but nothing

was said from the bench.

Another matter herein which requires

a remand for a new trial is misconduct of

the prosecutor. The Supreme Court has

recognized that a prosecutor

eeeis the representative not

of an ordinary party to a

controversy, but a sover-

eignty whose obligation to

govern impartially is as

conpelling as its obligation

to govern at all; and whose

interest, therefore, ina

criminal prosecution is not

that it shall win a case, but

that justice shall be done.

Berger v. United States, 295

U.S. 78, 88, 79 L.ed. 1314,

55 S.Ct. 629.

The responsibility also

requires him to be sensitive

to the due process rights of

a defendant to a fair trial.

A Fiortiori, the trial judge

has the same dual obligation.

Gannett Co Inc., v.

DePasquale, 443 U.S. 368, 384

N. 12, 61 L.Ed. 24 608, 99 S.

Ct. 2898, N. 12 (1979)

The purpose of an opening statement is

not to poison a jury's mind against

defendant or to recite items of highly

questionable evidence; it should be

limited to a general statement of facts

intendec or expected to be reproved and

should generally outline or foreshadow

evidence rather than to minutely describe

it in detail. Further, the proper focus

is on the possibility of prejudice to

defendant. United States v. DeRosa, 548

F.2d 464 (3rd Cir., 1977).

When specific guarantees of the Bill

of Rights are involved, the United States

Supreme Court takes special care to

assure that prosecutorial conduct in no

way impermissibly infringes them.

Donnelly v. DeChristoforo, 416 U.S. 637,

40 L.Ed.2d 431, 94 S.Ct. 1868 (1974).

It is as much the duty of a

prosecuting attorney to refrain from

improper methods calculated to bring

about a wrongful conviction as it is to

use every legitimate means to bring about

a just one. Berger v. United States, 295

U.S. 78, 79 L.Fd. 1314 (1934). Even if

based on evidence, statements by counsel

of their personal convictions of the

merits of their client's cause should

always be avoided. United States v.

Bensen, 487 F.2d 978 (3rd Cir., 1973). If

it is probable that a prosecutor's

argument has engendered prejudice,

defendant must be afforded a new trial.

United States v. Callanan, 450 F.2d 145

(4th Cir., 1971).

In the case United States of

America v. Socony-Vacuum Oil Company, 310

U.S. 150, 84 L.Ed 1129 (1939), the court

noted that while an assertion by counsel

in his argument to the jury of personal

knowledge of certain facts in contra-

diction to the testimony of an opposing

witness is not prejudicial error, where

under the issues in the case, the

testimony is wholly irrelevant and

upon objection by opposing counsel

¥ the remark is withdrawn, and the jury

instructed to disregard it. Socony

iy

Vacuum Oil Company, at 239-243. The

obvious implication is that if the

testimony is relevant, and as discussed

below, counsel for the defendant was not

competent enough to object and thereby

erase the harm, there can be prejudicial

error. In the opening statement the

prosecutor testified to the jury about

his personal belief of the petitioner's

guilt rather than merely outlining what

his evidence would show. At that point a

jury is extremely vulnerable to

Suggestion and the fact that the U.S

Attorney is telling them that he knows

this to be true is extremely effective,

though highly improper. Once made, this

type of testimony is not forgotten by

juries even though they may be admonished

by the court, which they were not. This

was also not what could be considered a

long trial. Rather it was merely two

days, very little time and easily within

the realm of memory of a jury.

The prosecutor was guilty of further

misconduct in his question of Mr. Glassey

as to his reputation in the community.

His question of petitioner, "Would you

Say your reputation among the people you

deal with for being honest is a good

one?" was made for the sole purpose of

inflaming the jury. Defense counsel's

objection was sustained. However, there

should have been an admonishment to the

jury. More blatant disregard of proper

procedure was shown by the inclusion of

Mr. Conger as a witness. The prosecutor

had been warned by the judge and yet he

still had the witness testify as to his

specific belief or opinion of Mr.

Glassey, rather than the general

reputation petitioner held in the

community.

Another reason why this Petition for

Writ of Certiorari should be granted and

10

a new trial granted is the fact that

there was gross negligence on the part of

defendant's counsel. One of the elements

to a fair due process trial authorized by

the Fifth Amendment to the Constitution

is the fact that the Sixth Amendment

gives the defendant the right to counsel

and that, if he cannot afford one, that

one should be appointed for him. The

principle behind having an attorney

appointed is so that a knowledgeable

guide is provided to take the defendant

through the procedural nightmares of our

system and to provide the educated

ability to cross-examine the accusers and

witnesses against defendant. See:

Carnley v. Cochran, 369 U.S. 506, 8

L.Ed 2d 70, 82 S Ct. 884 (1962). If these

principles are indeed the backdrop to the

reason for the Sixth Amendment, then when

the court-appointed counsel does not

provide the proper guidance through the

11

procedures, then the defendant is in much

the same condition he was before counsel

was appointed. An indigent should be

given not only the right to counsel but

also the right to competent counsel. It

is an inherent rule in the American legal

justice system that the courts should not

and cannot hold an indigent defendant

responsible for the errors of an

attorney. U.S. v. Powe, 591 F.2d 833

appeal after remand 627 F.2d 1251. If an

accused shows a substantial violation of

duties owed to him by counsel, accused

has been denied effective representation

of counsel. United States v. DeCoster,

487 F.2d 1197 (D.C. Cir. 1973). Further,

a remark to the effect that he had been

appointed by the court is not good

practice. United States v. Naylor, 566

F.2d 942 (5th Cir., 1978) It is not one

particular mistake that causes this

allegation but rather the number of them

12

taken as a whole which requires a great

deal of attention. His initial opening

statement informing the jury that he was

appointed to be Mr. Glassey's attorney

makes it sound as if that is the only way

he would have involved himself with

petitioner rather than giving a confident

statement as to evidence of innocence.

Further, negligence allowed exhibits of

business records without a proper

foundation when he did not strongly

object to the loan process cards being

entered into evidence during Mr. Gauwitz'

testimony in the prosecution's case.

During the same testimony there was a

flagrant hearsay statement by the witness

Stating that, "That's when we started

finding all these liens being filed".

The most flagrant failure was in the

already discussed testimony of Jerry

Conger, the wheelchair victim. Mr.

Parker did not object to the testimony

13

once it was being presented to the jury.

There was never any motion for mistrial

which was an obvious remedy as a result

of the use and admission of the testimony

of Mr. Conger. He never even mentioned

it in his appeal brief to the United

States Court of Appeals for the Seventh

Circuit.

The crux of the above arguments is

that, taken individually they might not

require a writ for certiorari and the new

trial; however, when analyzed together

there is a clear mandate for the Writ to

be granted.

The court below stated that the jury

could have believed that petitioner meant

to influence the lender. The testimony

of the wheelchair victim and his presence

in the court room for an extended period

of time though, could have been, and

probably was, a factor as to their bias

against petitioner. They may not have

14

formed the belief if it were not the

result of a compilation of the errors

made with the Conger testimony, the

prosecutorial mistakes and misconduct,

and the blatant lack of intervention for

his clients basic welfare by the

court-appointed attorney. Even if the

law was totally one-sided, which it was

not proved to be, a defendant is entitled

to a fair trial and in this instance Mr.

Glassey was not given one.

II

THE REFUSAL BY THE SEVENTH CIRCUIT

COUFT OF APPEALS TO REVERSE OR REMAND FOR

A NEW SENTENCING HEARING IS IN

CONTRAVENTION WITH FAIRNESS AND LAW AS TO

TURNING A SINGLE TRANSACTION INTO

MULTIPLE OFFENSES.

The sentencing was totally

inconsistent and bore no relation to the

offense nor to defendant's total lack of

prior record.

15

The sentence in this case was far

too harsh. It is the presupposition of

our law to resolve doubts in the

enforcement of a penal code against the

imposition of harsher punishment. When

Congress does not fix the punishment for

a federal offense clearly and without

ambiguity, doubt will be resolved against

turning a single transaction into

multiple offenses. Bell v. United States

of America, 349 U.S. 81, 99 L.Ed 905, 75

S.Ct. 620 (1954). When the trial court is

deciding what sentence should be imposed,

the Court should just impose sentence for

the singular criminal acts and not the

effects. O'Brien v. "nited States, 376

F.2d 538. In the sentencing hearing a

court should only consider positively

evidenced behavior and not behavior of

which there is a lack of conclusive

proof. United States v. Buckley, 379

F.2d 424 cert.den. 389 U.S. 929, 88 S.Ct.

16

289, 19 L.Ed 2d 280 (7th Cir., 1967)

The trial court did not take into

account a number of things. The activity

which caused the supposedly illegal act

was the signing of the lien papers which

allegedly was for the purpose of

influencing the lending institution.

Even assuming there was a fair trial on

that issue, it was just that one issue.

One set of facts. One transaction.

Regardless of the number of papers he

signed, the law does not require multiple

sentence for one continuous course of

action. United States v. Reed, 647 F.2d

678 (6th Cir., 1981). This is particu-

larly true when a criminal statute is

violated in a single criminal episode

indicating that multiple punishments can

not be imposed for two offenses arising

out of the same criminal transaction

unless each offense "requires proof of a

fact which the other does not". Whalen

17

v. United States, 445 U.S. 604, 63 L.Ed

2d 715, 100 S.Ct. 1432 (1980) See:

Ladner v. United States, 358 U.S. 169, 3

L.Ed 2d 199, 79 S.Ct. 209 (1958). The

Eleventh Circuit Court of Appeals

recently dealt with a similar area of

multiplicity as is present in this case.

Although the court in ‘aited States

v. Glanton, 707 F.2d 1238 (11th Cir.,

1983), found that when the defendant

falsely presented himself and signed a

Signature card, falsely endorsed a check,

and nine days later signed a check using

anothers name, he was not subject to an

allowance that all charges stemmed from

the same trans-action.

Even assuming that the court in

Glanton is completely correct, this case

is sufficiently and obviously different.

Here there was not anything more than one

mere action of signing his name to papers

at one sitting, on one day. The Glanton

18

case, therefore, is easily distinguished

and makes this case obviously in line

with those cited above.

Further, there was a complete lack

of intent on the part of Mr. Glassey.

The defendant had no knowledge that the

bank's representative was coming to see

him. He had no time to develop any

intent to defraud the bank. When Mr.

Nalley, the bank officer, arrived, he

told him, "I needed to have these signed

to complete our files". (Tr. 101) He may

have signed them with absolutely no

criminal intent whatsoever and at worst

he signed them with a minimum time to

reflect. Also the evidence showed that

the prior intent was to the contrary;

namely that the petitioner tried to get

loans to clear up the debts. Thus, the

evidence showed no true premeditation.

Further, there is some element of

compulsion existing here. As already

19

a.

noted, the affidavits were signed as a

result of Mr. Nalley's statement that

they were needed to complete the files.

The point that should be noticed is that

the parties were no longer acting as

equals. The bank had power over

petitioner by virtue of their position

and further by saying it was "to complete

files". It tended to lead defendant to

believe either the bank knew or condoned

the signing when some amount was still

not paid.

The legal effect of this is not to

excuse Mr. Glassey from signing the

documents but rather to illustrate the

state of mind and lack of intent which

existed when the "crime" was committed.

It was such that would normally demand a

minimal punishment, certainly not

consecutive sentences. The sole alleged

criminal act by petitioner was the

Signing of forms on one occasion at one

20

place and at one time. There was not

enough difference for disparate

sentences.

The purpose of the law allegedly

violated is to protect banks and savings

and loans from losing money.

Surprisingly though, on the first two

Counts there was no money lost and yet

the petitioner received two years on the

first Count and two years consecutively

on the second Count. No money was paid

at all to clear liens on five out of ten

of the loans for a net loss of $6,177.85.

Four years in prison is far too harsh a

sentence for that small of an amount lost

by non-violent means.

There was also extensive testimony

about money spent on two houses to

"finish home construction" shown on

Exhibit 11. It was highly prejudicial as

to the sentencing, particularly since the

amount was double the amount of money

21

paid to clear the liens. There was no

testimony at all as to what those moneys

were spent on. It could simply have had

nothing to do with the criminal intent

and yet was allowed in. In any event, it

should not have been in a criminal trial.

Rather, it should have been the subject

of a civil suit. There was no connection

between the sole alleged criminal act of

Signing the lien waivers and the extra

work.

As was noted in the first section of

this Petition, there was a presence of

gross negligence on the part of

defendant's trial attorney. A defendant

is as much entitled to effective

representation by counsel at sentencing

as at any other stage of his trial.

United States v. Pinkney, 543 F.2d 908

(B.C. Ct. ef App., 1976).

Mr. Glassey's record as evidenced by

the sentencing hearing was clear, showing

22

a perfect case for leniency and a

complete lack of multiple offenses on

which basis to instigate consecutive

sentences. The court still, however,

handed down two consecutive two year

sentences - far too harsh a penalty.

Therefore petitioner requests that a

reduction be made on the sentence, or in

the alternative, the case be remanded to

the trial judge with instructions for a

new sentencing hearing.

CONCLUSION

For these reasons, a Writ of

Certiorari should issue to review the

judgment and opinion of the Seventh

Circuit Court of Appeals.

Respectfully Submitted,

A #* o . -_

Counsel for Petitioner

417 Court Street

| Pekin, IL 61554

23

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1933

No.

JOHN R. GLASSEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Seventh Circuit

APPENDIX = GENERAL FORM

24

APPENDIX A

iu the

United States Court of Apprals

For the Srvurnth Cirrntt

No. 82-2998

UNITED STATES OF AMERICA,

Plaintiff-A ppellec,

JOHN R. GLASSEY,

Defendant-A ppellant.

Appea! from the United States District Court for the

Central District of Illinors. Peoria Division

Civil No. 82 CK luQUx—Michael M Mihm. Judo:

ARGUED May 12, 1983—DEcIDED AtcusT 23, 1983

Before POSNER ard COFFEY, Circuit Judyes, and GIBSON,

Senior Circuit Judgr.*

PeR CuRIAM. John Glassey appeals his conviction and

sentence for making false statements toa federally insured

savings and loan in violation of 18 U.S.C. § 1014(1976). We

affirm the judgment of the district court.

* The Honorable Floyd R. Gibson, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit, sitting by

designation.

25

eo,

2 No. 82-2998

l.

Glassey was part owner of a construction company,

Colossus, Inc. He periodically obtained interim construc-

tion loans for the corporation from Peoples Savings and

Loan Association of Chillicothe (Peoples). These were loans

for sixty to ninety days to finance the construction of houses

until they were sold. Peoples would set up an account with

the money it loaned Colossus. Peoples would take its in-

terest payments out of the account and pay subcontractors

when Colossus submitted the bills. Sometimes Colossus

would pay subcontractors itself and Peoples would reim-

burse Colossus.

On May 20, 1981, all the proceeds from the ten loans at

issue had been disbursed. A bank representative asked

Glassey tosign lien waivers and affidavits verifying that all

the subcontractors had been paid in full. Glassey signed

such forms for the ten accounts knowing that some subcon-

tractors had not been paid in full. Glassey was indicted on

ten counts for these false affidavits. He was convicted after

a jury trial on all ten counts. On eight of the counts he

received two-year concurrent sentences. He received acon-

secutive two-year sentence on another count, and a three-

year suspended sentence on the tenth count.

ll.

Section 1014 of Title 18 of the United States Code makes

it a crime to “knowingly make[] any false statement or

report... for the purpose of influencing in any way the ac-

tion of ... any institution the accounis of which are insured

by the Federal Savings and Loan Insurance Corporation.

...”’ (Emphasis added.) Actual reliance by the savings and

loan on adefendant’s false statements is not necessary fora

conviction under § 1014. lt is enough that the statement has

the capacity of influencing the savings and loan. United

States v. Braverman, 522 F.2d 218, 223 (7th Cir.), cert.

denied, 423 U.S. 985 (1975).

Glassey argues that there was insufficient evidence that

he made the statements for the purpose of influencing

Peoples because Peoples was incapable of being influenced

26

No. 82-2998 3

by the affidavits. Glassey points to the fact that he had

already received the loan proceeds when he signed the af-

fidavits. lf he had been truthful there was nothing the in-

stitution could have done differently. He was not attempt-

ing to apply for a loan at the time he signed the affidavits.

He testified that he lied only because he thought the af-

fidavits were a mere formality necessary for Peoples to

close its files.

We find that the evidence was sufficient to allow the jury

to conclude that Glassey made the statements with the in-

tention to influence Peoples and that Peoples had the

capacity to be influenced. An executive vice president of

Peoples testified that it may have tried to work out another

loan with Glassey so that the unpaid subcontractors could

get their money. Also, the jury could have reasonably

believed that Glassey lied so that he could get future in-

terim construction loans or get those loans on more

favorable terms than he could receive if Peoples knew the

truth. The inference would be particularly warranted

because Glassey had been getting loans on a regular basis

from Peoples for several years. The fact that Glassey was

not applying for a loan at the particular time he signed the

affidavits does not make the inference unreasonable. There

was sufficient evidence to sustain the conviction.

Hil.

Glassey also argues that his sentence calling for four

years incarceration is excessive in light of the fact that he

had no prior criminal record and found himself in financial

straits only because of asevere slump inthe homeconstruc-

tion business.

Our standard of review here is extremely limited. “A

reviewing court may not change or reduce a sentence im-

posed within the applicable statutory limits on the ground

that the sentence is too severe unless the trial court relied on

improper or unreliable information in exercising its dis-

cretion or failed to exercise any discretion atall in imposing

the sentence.” United States v. Main, 598 F 2d 1086, 1094

(7th Cir.), cert. denied, 444 U.S. 943. See also United States

27

4 No. 82-2998

v. Brubaker, 663 F.2d 764, 768(7th Cir. 1981); United States

v. Dawson, 642 F.2d 1060, 1062 (7th Cir. 1981). Section 1014

allows a maximum penalty of two years imprisonment

and a $5,000 fine. The district court had the benfit of ob-

serving Glassey at trial and considered the pre-sentence

report and letters received from friends and business

associates of Glassey before sentencing. Therefore, we can-

not say on this record that the tria] court either relied upon

improper information or failed to exercise any discretion.

The judgment of the district court is affirmed.

A true Copy:

Teste:

Appeals for the Seventh Circuit

USCA 30224—Midwest Law Printing Co., Inc., Chicago—8-23-83—400

28

APPENDIX B

UNITED STATES

For the Seventh

Chicago,

October 14,

Refore

Hon. RICHARD A. POSNER,

Hon. JOHN L. COFFEY,

Hon. FLOYD R. GIBSON,

Judge*®

UNITED STATES OF AMERICA )

Plaintiff-Appellee,

)

)

No. 82-2998 vs.

JOHN R. GLASSEY,

)

)

)

)

)

)

)

)

)

Defendant-Appellant. )

)

)

-—_ ORDER

On September 16,

29

1983,

COURT OF APPEALS

Circuit

Illinois 60604

1983

Circuit Judge

Circuit Judge

Senior Circuit

Appeal from

the United

States

District Court

for the

Central

District of

Tllinois,

Peoria

Division.

No. 82 CR

10008

Michael M.

Minm, Judge.

defendant-

appellant John R. Glassey filed a

petition for rehearing with suggestion

for rehearing en banc. All of the judges

of the original panel have voted to deny

the petition, and none of the active

members of the court has requested a vote

on the suggestion for rehearing en banc.

The petition is therefore DENIED.

*# Hon. Floyd 8. Gibson, of the Eighth

Circuit, sitting by designation.

30

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 26, 1983

Before

Hon. RICHARD A. POSNER, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee

) Appeal from

) the United

) States

) District Court

) for the

) Central

) District of

No. 82-2998 vs. ) Illinois;

) Peoria

) Division.

)

)

)

)

)

No. 82 CR

10008

Judge Michael

M. Mihm

JOHN R. GLASSEY,

Defendant-Appellant

The "MOTION FOR STAY OF MANDATE

PENDING PETITION FOR CERTIORARI" filed

herein on October 21, 1983, by counsel

for the defendant-appellant is GRANTED.

The mandate of this court which was

improperly issued on October 25, 1983, is

RECALLED. The clerk of the district

court is directed to retain the record

pending further order of this court.

31

IT IS FURTHER ORDERED that the

mandate of this court is STAYED to and

including November 25, 1983.

32

APPENDIX C

UNITED STATES DISTRICT COURT for

CENTRAL DISTRICT OF ILLINOLS

United States of America vs.

JOHN R. GLASSEY Docket No. 82-10008

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in

person on this date - December 3, 1982

WITH COUNSEL Drew L. Parker

with a PLEA of NOT GUILTY

There being a verdict of GUILTY, on

October 13, 1982.

Defendant has been convicted as charged

of the offense(s) of False Statements

Made to Influence Loan, Title 18, U.S.

Code, Section 1014.

The court asked whether defendant had

anything to say why judgment should not

be pronounced. Because no sufficient

Cause to the contrary was shown, or

appeared to the court, the court adjudged

the defendant guilty as charged and

convicted and ordered that: The

defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for

imprisonment for a period of two (2)

years each on Counts 1 and 2 of the

33

Indictment herein to run consecutively

under the provisions of Title 18, U.S.

Code, Section 4205(a).

IT IS FURTHER ORDERED that Defendant is

hereby committed to the custody of the

Attorney General for imprisonment for a

period of two (2) years each on Counts 3

through 9 of the Indictment herein to run

concurrently with the sentence imposed on

Counts i and 2 herein.

IT IS FURTHER ORDERED that imposition of

any other sentence is suspended and

Defendant is placed on probation for a

term of three (3) years on Count 10 of

the Indictment herein, to commence upon

termination of any parole on the sentence

to custody on Counts 1 through 9.

No Order on Costs

IT IS ORDERED by the Court that Defendant

shall comply with the general and special

conditions of probation as set out in

Form #7, furnished by the Probation

Officer and to the special terms outlined

in the plan of the Probation Department.

IT IS FURTHER ORDERED that Defendant's

Motion For Stay Pending Appeal is granted

and the existing bond shall remain in

full force and effect pending appeal.

The court orders commitment to the

custody of the Attorney General.

It is ordered that the Clerk deliver a

certified copy of this judgment and

commitment to the U.S. Marshal or other

qualified officer.

34

Signed by

XX U.S. District Judge

MICHAEL M. MIHM

Dated December 3,

35

1983

APPENDIX D

Title 18 Section 1014 provides:

Loan and credit applications generally;

renewals and discounts; crop insurance

Whoever knowingly makes any false

statement or report, or willfully

overvalues any land, property or

security, for the purpose of influencing

in any way the action of the

Reconstruction Finance Corporation, Farm

Credit Administration, Federal Crop

Insurance Corporation, Farmers’ Home

Corporation, the Secretary of Agriculture

acting through the Farmers' Home

Administration, any Federal intermediate

credit bank, or any division, officer, or

employee thereof, or of any corporation

organized under sections 1131 to 1134m of

Title 12, or of any regional agricultural

eredit corporation established pursuant

to law, or of the National Agricultural

Credit Corporation, a Federal Home Loan

Bank, the Federal Home Loan Bank Board,

the Home Owners’ Loan Corporation, a

Federal Savings and Loan Association, a

Federal land bank, a Federal land bank

association, a Federal Reserve bank, a

small business investment company, a

Federal credit union, an insured

State-chartered credit union, any

institution the accounts of which are

insured by the Federal Savings and Loan

Insurance Corporation, any bank the

deposits of which are insured by the

Federal Deposit Insurance Corporation,

any member of the Federal Home Loan Bank

System, the Federal Deposit Insurance

Corporation, the Federal Savings and Loan

Insurance Corporation, or the

36

Administrator of the National Credit

Union Administration, upon any

application, advance, discount, purchase,

purchase agreement, re-purchase

agreement, commitment, or loan, or any

change or extension of any of the same,

by renewal, deferment of action or

Otherwise. or the acceptance, release, or

substitution of security therefor, shall

be fined not more than $5,000 or

imprisoned not more than two years, or

both.

As amended Oct. 12, 1982, Pub.L. 97-297,

§ 4(b), 96 Stat. 1318.

37