Petition — Vittorio v. United States

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JAN 12 [96H

. ALEXANDER L. sTevas.

IN THE en

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LEO VITTORIO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOSEPH BEELER, Member of the

Bar of the Supreme Court

HOLLY R. SKOLNICK

Joseph Beeler, P.A.

300 Executive Plaza

3050 Biscayne Boulevard

Miami, Plorida 33137

(305) 576-3050

)

1. Do trial courts deny the

accused their Sixth Amendment right

to have a jury determine whether the

prosecution proved beyond a reasonable

doubt each essential element of the

alleged crime, when they instruct

juries that, as a matter of law, a

misstatement of the source of income

on an income tax return is a material

matter as contemplated by 26 U.S.C. §

7206(1) and, in connection with similar

statutes, likewise direct a verdict

of guilty on the essential element of

materiality?

2. When a trial court erroneously

excludes critical defense evidence,

thereby violating the Pifth and Sixth

Amendment right to present a defense,

should an appellate court apply ‘the

harmless error standard of Kotteskos .

¥ United states, 3200.8. 750 bi CS.

A 7

“ we. ; res

Y > Wiel? ym abinig 4 sta

Bh eer

Reem a. A. aR ee

ey Re.

oe ee eee.

1967)?

(

Table of Contents

Opinion Below ....-e+e-s

Jurisdiction ‘oe: 6 owe

Constitutional Provisions,

and Statute Involved ..

Statement of the Case ...-.

It.

(i) Course of Proceedings

and Disposition Below

(ii) Statement of Pacts

‘Reasons for Granting the Writ

Certiorari should be

granted because Peti-

tioner's case presents

issues related to

federal principles of

overriding importance:

a criminal defendant's

right to a trial by jury

and his right to a find-

ing of guilty beyond a

reasonable doubt on

every element of the

offense charged ....-

Certiorari should be

granted because a sub-

stantial federal ques-

tion exists in part

due to the sheer number

of offenses for which

materiality is an es-

sential element eee es 6 &

eo Re Pea a

Itl.

IV.

Certiorari should be

granted to resolve

the conflict that exists

among the federal courts

of appeals with respect

to the materiality ele-

ment of this statute

and also with respect to

the materiality element

of other false statement

statutes 7. > * 7. > _ > °

C»rtiorari should be

granted because Peti-

tioner's case addresses

matters of overriding

importance: the funda-

mental right of a crin-

inal defendant to pre-

sent a defense and the

proper standard of review

for the erroneous exclu-

sion of defense evidence

Certiorari should be

granted to resolve the

conflict that exists

among the federal courts

of appeals with respect

to the standard of review

to be applied when the

trial court erroneously

excludes defense evidence .

Conclusion ....«.ss-e-e-se:

«<- Me

TABLE ES

CASES

ionics ce

sugotise Rattee >

Oey ae yi

(6th Cir. 1976)...

Baldwin v. New York,

U.s. wey se

Ballew v. Georcia,

U.S, (1978). .

Ch re v. Mississippi,

i10 U.S. 204 tis)

chapman v. California,

U. - 7). .

Connecticut v. Johnson,

U.s.

S.Ct. 969711983) ..

Commonwealth Vv. Bebuitee ’

398 N.E.2d

(Mass. 1979) ..-s-s

Duncan v. isiana,

5. 1968) .

-S- 375 (1970) .

(7th Cir. 1978)...

J Vv

26,

13,

“Rotteskos v. United States,

U. o i + -

Mullaney v. ae

8S. £3975) »« 6 *

Patterson v. New totes

U.S. 76) © om o

People v. Clemente,

App. Div. 258,

136 poreeere aati

(N.¥. 1954) ff

309 N.¥. 890, 131

N.E.2d 294 (1954) ....

Radiation ics,

Inc. Vv. GO tz,

(24 Cir. 1972) .....

Sandstrom v. Montana,

U.s. ¢ 2 ) re

Sinclair v. United States. :

United gtates Vv. Apads

PF. Cir.),

i v ler,

(8th Cir, 1980) .....

Dnited states v. Angelini,

Fr.

(lat Cir. 1982) “ee ee

Wv »

(8th Cir. 1983) ....-s

25,

13,

18,

E. United st&tes v. Atkins,

: 556 F.2d 133 (34 Cir.

oy (1977), cert. denied,

a 434 Oo. OTE -TISTEy aris + 29

4 United States v. Beery,

‘ Sees Fad Bee

' (10th Cir. 1982) ..... 29

United gtates v. Berardi,

FP. -)

cert. denied, 449

U.s. 555 (1580) ss a 2 o = . 22

°.

United States v. Bernard,

te ate SOOT: 4s 0 6 ee 21

United States v. Brumley,

560 F.2d 12606

(Sth Cir. 1977) . .- » « « « 22

United States v. Clancey,

276 F.2d 617 (7th Cir. ;

4 1960), ceva on other

qeaunds U.S.

1 61) oe @ f &© © & © 21

United States v. ines, 3

PF. eS

(llth Cir. 1982) yy +o Se 19 i

Uni tates v. Gi one, :

° r. 1978), 4

re | | 442 U.8s. a

o se — > * _ e > 22 ;

ted tes v °

FP. ( Cir.),

United States v. Halbert,

PF.

(Sth Cie. THER) «seen 6 17, 22

United States v. Haynes,

. 573 F.2d 236 (oth Cir.),

* cert. genes 439 U.S.

2 a ” — a +. 2 eo 19

United States v. Irwin,

6 PF.

"ares (10th Cir. 1981),

cert. denied,

U.S. 6 (1982) ... 21

United States v. I oe

322 F.2d 523 tach Circ.},

ee denied, 375 U.S.

‘A eeee fe © @ 21

‘ United States v. Johnson,

| 410 F.2d 38 (8th Cir.),

cert. denied, 396

U.s. B22 (1969) effete e 23

United gtates v. Kostoff,

L (9th Cir. 1978) .. 2... 13, 23

United Stat v. Lay,

“oat 7-34 1087 Sch Cir.),

s a a > > — of os 29

Uni tes v. : ‘

(4th Cir. 1981) ....-- 29

United states _v. Lechooo, a

es ae:

(D.C. Cir. 1976) ..... a.

+ in 5 Mig |

es : Pr. re ‘

1981), t ; ;

a 455 eee TL MBCLTal BAe a 20

: (D.C. Cir. 1978...... 28

sisted otates i Null, :

(ath Cir. SS ee i9

United states v. Opager, 3

1 ie Ses 28g

United states v. Paolicelli,

(4th Cir. 1974) ...... 22 :

. | BEES cic.

4 Unit B 1981) ......-. 28 ,

4 Unit t v. Raineri, '

(7th Gir. 1962)...... 22 %

it v 8, *

° Cir.), ‘

fis... es 2

ae0oereeeee 29 a

: ° °a

re “y

oy. . hi

. 434 0.8. ee 29 .

’

Be (Ist Cir. 1975)...... 20, ag

i United states v._schatter, :

§ F.

4 | (5th Cir. 1979) rf ff @ © @ 23

nit Vv ’

p Fr. Cir.),

a denied, 449 U.S.

P 7 . __ . - - = co 20

United States vs Valdez,

FP.

(9th Cir. 1979) . . «© «© o « 21, 23

united States = Whyte,

Fr.

(7tn Cir. 1983) ...... 20

ited States v. Wood,

(9th Cir. 1977) ...... 29

, Washington v. Texas,

306 os it (1967) me tide 26

| Weinstock v. United states,

(D.C. Cir. 1956) ..... 21

1 Vv lo , -

U. - 970) o 7 o > ~~ ll

7 | CONSTITUTIONAL PROVISIONS #

U.S. Const. amend. V ..... 3, 12 3

d 13 ‘

U — Ss + Const. amend J VI +. > 7 - 7 3 ’ 10 a

F STATUTES AND RULES Bee

* 18 0.8.C. § SUR é 0 4 eheiie’s . “ roe hey % 4

12)

eo 10 A® (eye ©

18 U.S.C. § 1341

SE BiGC. 8 PROBCT)s 6? oc. bo

5, 8, 9

28 U.S.C. § 1254(1) .... ss

peeh”

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LEO VITTORIO,

Petitioner,

vs.

UNITED STATES OF AMERICA, —

Respondent.

The ga palaeanne se LEO VITTORIO, peti-

tions for’ a writ of certiorari to review

Ae at kL %

the judghent. ofthe United States Court

of Appeals for the Eleventh Circuit in

this case.

Sa : > é * LU

: - : . 4 r re he. ee | i Pn ‘y

NG ERE WE ee

Tee * Pe ee fore \ ou Sree eh CN

—— o——

OPINION BELOW

The Order and Opinions of the

United States Court of Appeals for the

Eleventh Circuit are reprinted in the

Appendix hereto (APP:la). Wo opinion

was rendered by the District Court

pertaining to the issues herein.

JURISDICTION

The initial judgment of the United

States Court of Appeals for the Eleventh

Circuit affirming Petitioner's convic-

tion was entered on March 14, 1983. A

Petition for Rehearing was timely filed

and rehearing was granted. A new Opin-

ion affirming Petitioner's conviction

was issued on August 12, 1983. Peti-

tioner's request for rehearing and sug-

gestion for rehearing en banc was denied

on October 14, 1983. Upon Petitioner's

application, an extension of time to

file this Petition was granted, to

and including January 12, 1984. this

Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS,

AND INVOLVED

A. Constitutional Provisions.

United States Constitution, Amend-

ment V, in relevant part:

No person shall ..°. be

deprived of life, liberty or

property, without due process

Of law; ...-s.

United States Constitution, Amend-

ment VI, in relevant part:

In all criminal prosecu- /

tions, the accused shall enjoy

a the right to a speedy and

public trial, by an impartial

jury .. . to have compulsory

proccess for obtaining witnes- ;

ses in his favor ... -« “

B. Statute. d

26 U.S.C. § 7206(1):

Any person who -- ,

(1) DECLARATION UNDER

| PENALTIES OF PERJURY -- Will- a

; fully makes and subscribes oe

i any return, statement or other ia

: document, which contains or

be _ is verified by a written

ie ' declaration that it is made

under penalties of perjury,

and which he does not believe

to be true and correct as to

every material matter...

shall be guilty of a felony

and, upon conviction thereof,

shall be fined not more than

$5,000, or imprisoned not

more than 3 years, or both,

together with the costs of

prosecution.

STATEMENT OF THE CASE

(i) Course of Proceedings

_ and Disposition Below

On November 5, 1980, a federal

grand jury returned an Indictment

charging the Petitioner, LEO VITTORIO,

with five offenses. Count 1 charged

that Mr. Vittorio conspired to accom-

plish two illegal goals in violation of

18 U.S.C. § 371. It charged a conspir-

acy to defraud the United States by

impeding, impairing, obstructing and

defeating the functions of the Internal

Revenue Service and to use the mails to

defraud Cement Mason Union Local 780.

Counts 2, 3, 4 and 5 each charged that

the Petitioner signed under penalty of

Ctl =e -

perjury a federal income tax return for

each of the years 1974, 1975, 1976 and

1977 when he did not believe each re-

turn to be true and correct as tc every

material matter, in violation of 26

U.8.C. § 7206(1).

Petitioner pled not guilty to all

counts. After a trial in Miami, Flor-

ida, before the Honorable James C.

Paine, a jury found the Petitioner

guilty on all five counts of the Indict-

ment. The court imposed a sentence of

18 months imprisonment for Count l,.

The court withheld the imposition of a

sentence of confinement for each of

Counts 2, 3, @ and 5 and placed the

Petitioner on probation for a period of

five years for each count. The four

terms of probation are to run concur-

rently. The court elso imposed a fine

of Pive Thousand ($5,000.06) Dollars for

- ee

Twenty Thousand ($20,000.00) Dollars.

(ii) Statement of Pacts

Petitioner is a union cement mason.

Union masons have commonly worked in the

name of another union mason (referred to

as a “stiff") who is not doing mason

work at the time. The mason who uses

the stiff's name does not declare these

wages on federal or state income tax

returns and does not pay taxes on this

income. This mason may also claim state

unemployment benefits without regard for

the wages earned under the stiff's name.

But income taxes are withheld by the

employers and there was no proof in this

case that the federal treasury lost any

revenue. If the stiff is also a union

mason and the employer subscribes to the

union's collective bargaining agreement

then the union gives the stiff credits

towards medical and pension benefits for

the hours worked in his name.

A large number of union cement

masons in the state of New York worked

in the Petitioner's name. At the. time

the Petitioner was not doing mason work

but was in Florida developing restau-

rants. The masons using Petitioner's

name received the income. The employers

sent the W-2 forms to the Petitioner and ig

he attached the forms to his tax return.

Angelo Acca was a New York mason

and friend of the Petitioner. He was

not a co-conspirator. He testified

‘ that once in 1974 and once in 1975 the

Petitioner telephoned him and asked him

to try to stop the New York masons from

using Petitioner's name. The trial a

court excluded as hearsay what the. 4

Petitioner told Acca during these con- ae,

versations. 4

The government conceded and the “Se

Court of Appeals assumed that the ex- a

clusion of Petitioner's 1974 and 1975.

Ni : git

‘i ae ss

ce Re ae a PREDICTS,

‘+ a <, - ‘hea 5 aa) eee "ee, Sa) oa. 45 4

statements to Acca was error. But even

though the trial court's error denied

the Petitioner a fundamental right --

the right to present a defense -- the

Court of Appeals applied the harmless

error standard of Kotteakos v. United

States, 328 U.S. 750, 764-65 (1946).

With respect to the criminal tax

charges, the trial court instructed the

jury that as a matter of law the “mis-

statement of a source of income on an

income tax return” is a material matter

for purposes of 26 U.S.C. § 7206(1).

Thus, the jury never passed on the

issue of materiality before reaching

its verdict, nor was the evidence ever

tested against the reasonable doubt

standard. Relying on precedent from the

ritth Circuit, United states v. Taylor,

574 F.2d 232, 235 (Sth Cir.), cert.

denied, 439 U.S. 893 (1978), the panel

approved this instruction. |

REASONS FOR ING THE WRIT

CERTIORARI SHOULD BE GRANTED

BECAUSE PETITIONER'S CASE

i PRESENTS ISSUES RELATED TO

PEDERAL PRINCIPLES OF OVERRID-

ING IMPORTANCE: A CRIMINAL

DEFENDANT'S RIGHT TO A TRIAL

BY JURY AND HIS RIGHT TO A

FINDING OF GUILTY BEYOND A

REASONABLE DOUBT ON EVERY

ELEMENT OF THE OFFENSE CHAR-

GED

Title 26, United States Code, Sec-

tion 7206(1) is a felony statute which

is violated when one willfully makes and

subscribes a federal income tax return *

and does not believe the return to be

true and correct as to every material

matter. The materiality of the false or

incorrect matters is thus an essential

element of the offense.

A long line of Supreme Court cases

over the last decades has held that the

> Constitution requires that such essen-

tial elements must be submitted to the

‘ jury for determination and that the jury

9 9-

must find that the element was proven

beyond a reasonable doubt.

Nevertheless, in the Eleventh

Circuit, as in a majority of federal

courts, the finding of the existence

of materiality under Section 7206(1) is

made by the court, rather than by the

jury. Further, in the Eleventh Circuit,

materiality need not be found beyond a

reasonable doubt, but the proof need

only meet some lesser standard.

This practice violates constitu-

tional imperatives of the greatest

importance -- the right to a jury trial

and the right to a reasonable doubt

standard.

The Sixth Amendment right to a

trial by jury is historically and fund-

amentally a check on the power of gov-

ernment, including the power of judges.

Duncan v. Louisiana, 391 U.8. 145, 156

(1968); accord Ballew v. Georgia, 435

U.S. 223, 229 (1978); Williams v. Plor-

ida, 399 U.S. 78, 100 (1970); Baldwin v.

New York, 399 U.S. 66 (1970). Removing

an essential element of an offense from

the jury's consideration effectively

usurps the jury's function.

In Baldwin, Mr. Justice White,

speaking for the Court, noted that the

constitutional allocation of power

to the jury rather than to the court

represents a “fundamental decision about

the exercise of official power.” Id. at

72. Justice White went on to note that

the Founding Fathers placed particular

importance on jury trials to prevent the

reality, or even the appearance, of mis-

use of power by the Government, whether

through the executive or its coordinate

branch, the judiciary:

{T)he primary purpose of the

jury is to prevent the possi~

bility of oppression by the

Government; the jury inter-

poses between the accused and

his accuser the judgment of

laymen who are less tutored

perhaps than a judge or a

panel of judges, but who at

the same time are less likely

to appear as but another arm

of the Government that has

proceeded against him.

Id.; see also id. at 76-77 (Burger,

C.J., dissenting) ("The Pounding Pathers

therefore cast the constitutional pro-

visions we deal with here as limitations

on federal power ... .").

Not only is the accused entitled to

have the jury stand between him and his

accusers, the Due Process Clause of the

Pifth Amendment requires the government

to prove each essential element of the

crime to the satisfaction of the jury

beyond a reasonable doubt. In re Win-

ship, 397 U.S. 375 (1970). ‘This prin-

ciple has been emphasized repeatedly

over the last decade and is stated

succinctly in Jackson v. Virginia, 443

U.8. 307 (1979).

~ P ie

Pear OS

Fae

{N]o person shall be made to

suffer the onus of a criminal,

conviction except upon suffi-

cient proof--defined as: evi-

dence necessary to convince a

trier of fact beyond a reason-

able doubt of the existence

of every element of the of-

fense.

Id. at 316 (emphasis added). See also

In re Winship, 397 U.S. at 364 (Due

Process Clause requires such proof of

"every fact necessary to constitute the

crime"); Patterson v. New York, 432 U.S.

197, 210 (1976) (Due Process Clause

requires the prosecution to prove be-

yond a reasonable doubt “all of the

elements included in the definition of

the offense of which the defendant is

charged"); Mullaney v. Wilbur, 421 U.S.

6864, 702 (1975) (The government “must

prove every ingredient of an offense

beyond a reasonable doubt ... .")3

Sandstrom v. Montana, 442 U.S. 510, .

520 (1978); Connecticut v. Johnson,

U.s8. , 103 8.ct. 969 (1983).

This Court has never decided a case

in which the issue of whether “material-

ity” in a false statement prosecution

was properly one for the jury to decide

rather than for the court. The only

Supreme Court opinion on which the

Eleventh Circuit can rest its present

practice as to materiality is Sinclair

v. United States, 279 U.S. 263 (1929),

an opinion which predates (1) Winship,

(2) Mullaney, (3) Patterson, (4) Sand-

strom, and (6) Johnson. Sinclair con-

cerned the question of a defendant's

refusal to answer "pertinent" questions

in a congressional committee hearing.

In a brief two paragraphs, the Sinclair

Court noted a similarity between the

concepts of pertinency and materiality

and stated that both should be decided

by the court. Id. at 298-99. |

Petitioner respectfully submits

that the dictum in Sinclair has been

ARE os"

overruled sub silentio or at the very

least is ripe to be reconsidered in

light of the Supreme Court's more recent

opinions concerning the right of a

defendant to have a jury determine that

each essential element of an offense has

been proven beyond a reasonable doubt.

While it is a well-established rule

of evidence that the judge should deter-

mine whether evidence is relevant and

material and consequently admissible, an

analogous rule with respect to an essen-

tial element of a false statement type

of offense is not appropriate. The

issues are properly distinguishable:

[MJateriality as a substan-

tive element of the crime of

perjury is something more than

materiality considered in an

evidentiary ruling by the

court. Materiality in such a

Case becomes a matter for

ultimate determination by the

decisional process.

P v nte, 285 App. Div. 258,

262, 136 N.¥.8.2d 202, 206 (N.¥. 1954),

2 ,

aff'd,.309 N.Y. 8690, 131 N.E.2d 294

(1954); accord Commonwealth v. McDuffee,

398 N.EB.2d 463, 468 (Mass. 1979).

Although lawyers are accustomed to

thinking of materiality as a matter for

judicial ruling, there is nothing in the

nature or quality of materiality which

makes it essentially a legal concept.*

II.

CERTIORARI SHOULD BE GRANTED

BECAUSE A SUBSTANTIAL FEDERAL

: QUESTION EXISTS IN PART DUE TO.

* THE SHEER NUMBER OF OFFENSES

, FOR WHICH MATERIALITY IS AN

ESSENTIAL ELEMENT

The “materiality” of a false state-

ment is not an issue limited to pros-

ecutions brought under Section 7206.

er ee

DP se Mae

Numerous federal statutes prohibit and

penalize false statements, misrepresen-

tations, false claims, and other forms

of fraud which can be practiced upon

federal agencies, courts, and financial

institutions.

Many of these statutes, like Sec-

tion 7206, explicitly require that the

"false statement" or other misrepresen-

tation be material. ee, @.9., 18

U.8.C. § 1621 (perjury before grand

jury); 18 U.S.C. § 1623 (perjury before

a court); 18 U0.8.C. § 922(a)(6) (false

statement in connection with firearms

purchase). But even when the statute

does not literally require materiality,

the federal courts of appeals have read

the element of materiality into the

offense. See, e.ge, United States v.

Halbert, 640 F.2d 1000, 1008 (9th Cir.

1981) (materiality essential to pail

fraud offense under 18 U.8.C. s 1341),

United States v. Kostoff, 585 F.2d

378 (9th Cir. 1978) (essential to bank

fraud offense, 18 U.S.C. § 1014); United

States v. Adler, 623 F.2d 1287, 1291

n.5 (8th Cir. 1980) (essential element

of both 18 U.S.C. § 1001, governing

false statements to government agencies

generally, and 18 0.8.C. § 287, govern-

ing false sivine’ to federal agencies).

The issue of the “materiality” of

alleged false statements is therefore

common to many federal prosecutions.

Thus, the questions Petitioner raises

herein have an importance far beyond his

individual case and the statute under

which he was convicted. As we demon-

strate below, when the circuits have

considered these various statutes, they

have disagreed as to whether the mate-

riality of the false statement in ques-

tion is to be decided by the curt or

the jury.

: }

III. tts

CERTIORARI SHOULD BE GRANTED ¥

F TO RESOLVE THE CONFLICT THAT a

EXISTS AMONG THE FEDERAL

COURTS OF APPEALS WITH RESPECT

TO THE MATERIALITY ELEMENT OF 4

e THIS STATUTE AND ALSO WITH

RESPECT TO THE MATERIALITY :

ELEMENT OF OTHER FALSE STATE- |

MENT STATUTES

This issue also merits the consid-

a 2S pat Se

eration of the Supreme Court because it P

has generated a substantial conflict

io oe

among the circuits. The Fourth Circuit

has recognized that the issue of mate-

riality in a charge of filing false

returns is appropriately a jury ques-

tion. United States v. Null, 415 F.2d

1178, 1181 (4th Cir. 1969). The Ele-

venth Circuit and several others have -

taken the contrary position that the

issue is one of law for the ccurt to

decide. See, ¢-g-, United states v. |

; Gaines, 690 F.24 849 (11th Cir. 1982), a

" United states v. Baynes, 573.7.20236 |

s (Sth Cir.), cert. denied, 439 0.8. 893 ee

(1978); Unit tates v te, 699 Be

P.24 375 (7th Cir. 1983); United states ;

v. Strand, 617 F.2d 571 (10th Cir.), Be

cert. denied, 449 U.S. 841 (1980);

United States v. Romanow, 509 F.2d 26 *

(lst Cir. 1975). Thus, the problem is

sufficiently difficult to divide courts.

The problems created by the con-

cept of materiality are not limited to

Section 7206(1). There is also a con-

“flict among the circuits applying the

materiality requirement of Title 18, t

United States Code, Section 1001, which

governs false statements to government

agencies. The Second, Fourth, Fifth,

Sixth, Seventh, Eighth and District - és

of Columbia Circuits have ruled that 3

Section 1001's materiality requirement e

is a “question of law. United States v. i:

Abadi, 706 F.2d 178, 180 (6th Cir.),

cert. denied, 34 CrL 4005 (1983); Unites

States v. McIntosh, 655 F.24 80, 82 (5th

| -20-

Cir. 1981), cert. denied, 455 U.S. 948

(1982); United States v. Adler, 623

F.2d 1287, 1292 (8th Cir. 1980); United

States v. Bernard, 384 F.2d 915, 916 (24

Cir. 1967); United States v. Ivey, 322

F.2d 523, 529 (4th Cir.), cert. denied,

375 U.S. 953 (1963); United States v.

Clancy, 276 F.2d 617, 635 (7th Cir.

1960), rev'd on other grounds, 365 U.S.

312 (1961); Weinstock v. United States,

231 F.2d 699, 703 (D.C. Cir. 1956). The

Ninth and Tenth Circuits have ruled that

this question is one of fact. United

States v. Irwin, 654 F.2d 671, 677 n.8

(10th Cir. 1981), cert. denied, 455 U.S.

1016 (1982); United States v. Valdez,

594 F.2d 725, 729 (9th Cir. 1979).

Courts have treated the materiality

requirement in other false statement

type statutes differently as well. For

example, in a mail fraud prosecution

under 18 U.S.C. § 1341, the Ninth Cir-

-21-

a et oer

EL EP

cuit has held that the issue of mate-

SO ee Ss ie

riality ,should be submitted to the

A -. jury. United States v. Halbert, 640 ‘

F.2d 1000 (9th Cir. 1981). But the

issue of materiality in prosecutions

for perjury under 18 U.S.C. § 1623 is

usually considered a question for the A

court. gee, e.g., United States v. 4

Brumley, 560 F.2d 1268, 1275, 1278- "

80 (Sth Cir. 1977); United States v. |

Raineri, 670 F.24 702, 718 (7th Cir. ae;

1982), cert. denied, _ U.S. __,»

‘ 103 S.Ct. 446 (1983); United States v.

Berardi, 629 F.2d 723, 728 (24 Cir.),

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

United States v. Giacalone, 587 F.2d 4

4 5 (6th Cir. 1978), cert. denied, 442 =

3 U.S. 940 (1979); United states ve.

* Paclicelli, 505 F.24 971 (4th Cir.

2 1974) .*

no matter what false si

” ps SR We, :

| (Pootnote continued on p. 23,

; re - Benet : oe ite

. : Seth

+. “ ae. -..

* ie bs Mr .

ie ¢ a?

4 et b j ” 2

MERON, Sats ae te

* Fats we: \ ts mxtd 2

me a8. PO ie Poa ,

PANG - ~ > -

‘ PEL BE ee are! SH

7 > : « P F iq ‘

: < a *

bi ‘ “S) x :

‘

yee Oe

Thus, as a result of these differ-

ing approaches, two distinctly opposite

rules now exist with respect to the

numerous false statement statutes, all

of which should manifestly be governed

by a single rule -- one acceptable in

all courts and compatible with the

Constitution. The confusion can only

further multiply, leading to greater

Gisorder in the law and greater dis-

parity in treatment of defendants across

the country, unless the Supreme Court

decides the issue and announces a defi-

nitive rule.

IV.

CERTIORARI SHOULD BE GRANTED

BECAUSE PETITIONER'S CASE

‘ADDRESSES MATTERS OF OVERRID-

ING IMPORTANCE: THE FUNDA-

MENTAL RIGHT OF A CRIMINAL

DEFENDANT TO PRESENT A DEFENSE

AND THE PROPER STANDARD OF

REVIEW FOR THE ERRONEOUS EX-

CLUSION OF DEFENSE EVIDENCE

At trial, Petitioner attempted

to introduce into evidence exculpatory

statements made by Petitioner to a

friend in 1974 and 1975. The witness,

who was not a co-conspirator, was not

permitted to testify with regard to

those conversations, on hearsay grounds.

On appeal the government conceded and

the Court of Appeals onemet bet the

exclusion of this nenuineny: was erro

neous. By wrongfully excluding this

evidence, the trial court violated the

fundamental Fifth and Sixth Amendment

right to present a defense. Neverthe-

less, the Court of Appeals applied the

harmless error standard of Kotteakos v.

United States, 328 U.S. 750, 764-65

(1946) on the grounds that the excluded

testimony would only have been of lim-

ited relevance.

A defendant has a constitution

right to offer exculpatory evidence to

the jury for its consideration:

The right to offer the testi-

mony of witnesses, and to

compel their attendance, if

necessary, is in plain terms,

the right to present a de-

fense, the right to present

the defendant's version of the

facts as well as the prosecu-

tion's to the jury so that it

may decide where the truth

lies. Just as the accused has

the right to confront the

prosecution's witnesses for

the purpose of challenging

their testimony, he has the

right ta present his own

witnesses to earane see: a

defense. )

wre +

—

Washington v. Texas, 368 U.S. 14, 19

' (1967). gee also Chambers v. Nissis~

: sippi, 410 0.8. 284, 302 (1973) ("Few 4

be rights are more fundamental than that of

an accused to present witnesses in his .

own defense.").

Where a defendant's constitution- *

al rights are denied the standard of

review articulated in Chapman v. Cali-

fornia, 386 U.S. 18 (1967) applies,

and the burden must shift to the gov- , :

ernment to prove that the error was

harmless beyond a reasonable doubt. *%

The Court cof Appeals refused to

apply the Chapman standard to this case —

involving Petitioner's fundamental right

to present a defense. If it had used

this standard, the result might well 2

have been different. we therefore urge

the Supreme Court to grant cortioreri : ou

and to make clear the proper standard of

review for this and similar cases.*

4 + %

(Footnote can be found on p. 27, infra.)

| lee Ae ee eae

-26— Me bi RT a by oS mE

eS : ae: Snr ¥

“\a Fo ‘ +98

ae - - 7 ’ Ay r ‘ a

4 oy a vow hes = +?

: ;

Vv.

CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE CONFLICT THAT

EXISTS AMONG THE FEDERAL

COURTS OF APPEALS WITH RESPECT

TO THE STANDARD OF REVIEW TO

BE APPLIED WHEN THE TRIAL

COURT ERRONEOUSLY EXCLUDES

DEFENSE EVIDENCE

There is also a substantial con-

flict among the circuits regarding the

standard of review to be used when

defense evidence has been erroneously

excluded. Some circuits, recognizing

that a defendant has a Sixth Amendment

right to present a defense, have treated

the improper exclusion of defense evi-

dence as constitutional error, and

have therefore used the harmless error

standard articulated in Chapman v.

Califorsia, 386 U.S. 18 (1966). See

Hughes v. Matthews, 576 F.2d 1250 (7th

Cir. 1978); United States v. Gibson, 675

3 F.2d 825 (6th Cir.), cert. denied, 103

§.Ct. 305 (1982). Other courts have

treated improper exclusion of defense

evidence as merely evidentiary error,

that is, not of constitutional dimen-

sions, and have applied the standard set

forth in Kotteakos v. United States, 328

U.S. 750 (1946). See United States v.

Parry, 649 F.2d 292 (5th Cir.. Unit B

; 1981).

The confusion is furthered by the

fact that both approaches are sometimes

used within the same circuit. See

United States v. Morgan, 581 F.2d 933

(D.C. Cir. 1978) (applying Kotteakos)

and United States v. Lechoco, 542 F.2d

84 (D.C. Cir. 1976) (applying Chapman);

United States v. Opager, 589 F.24.799

me (Sth Cir. 1979) (applying Kotteakos) and 3

‘ yd

Bi es

United States v. Lay, 644 F.2d 1087 (5th

Cir.), cert. denied, 454 U.S. 972 (1981)

(applying Chapman).

In several circuits, it is simply

not clear what harmless error standard

is being used when defense evidence

has been erroneously excluded. See

United States v. Angelini, 678 F.2d 380,

382 (lst Cir. 1982); United States v.

Robinson, 544 F.2d 110, 115 (3d Cir.

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

(1978); United States v. Atkins, 558

P.2d 133, 136 (3d Cir. 1977), cert.

denied, 434 U.S. 1071 (1978); United

States v. e, 642 F.2d 715, 720-

21 (4th Cir. 1981); Unit v

Roberts, 676 F.2d 1185, 1188 (8th Cir.),

cert. denied, 103 s.ct. 142 (1982);

United states v. Wood, 550 F.24 435. 441

(9th Cir, 1977); United states v. Beery, =

676 F.24 @56, O68 (10th Cir. 1982),

«Since the application of the aoe

correct standard is essential to judi-

cial review, we have raised an important

question of federal law. Since it is a

% standard of review question, it has

broad impact, affecting numerous ap-

peals. Since it has generated severe

conflict and confusion among the cir-

cuits, the Supreme Court should grant

certiorari and clarify which standard is

approriate for the review of erroneous

exclusions of critical defense evidence.

CONCLUSION

e For all the foregoing reasons, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

JOSEPH BEELER

HOLLY R. SKOLNICK

Joseph Beeler, P.A.

4 Counsel for Petitioner.

noe 300 Bxecutive Plaza

3050 Biscayne Boulevard

Miami, Florida 33137

(305) 576-3050

ie 2s tee Sa ie

APP I

Table of Contents

Opinion, United States Court of Appeals

for the Eleventh Circuit, March

14, 1983 2 « 0 & 6 & eijeve'(é ole Awd

Judgment, United States Court of Appeals

for the Eleventh Circuit, August

12, 1969 6: o.\¢ ©» «¢ 8 es 6 8 eee

Opinion, United States Court of Appeals

for the Eleventh Circuit, August

12, 1983 « « + + «© © © © © © © © AWld

Order, United States Court of Appeals

for the Eleventh Circuit, October

14, 1983 ~- © ee we ee ce 0 0 o & ReSD

eee Oe es

[OPINION OF THE UNITED STATES COURT

OF APPEALS

FOR THE ELEVENTH CIRCUIT]

Entered on March 14, 1983 in

Case No. 82-5164

Non-Argument Calendar

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

KRAVITCH, Circuit Judge

Appellant, Leo Vittorio, was con-

victed under 18 U.S.C. §§ 1341 and 371

of one count of conspiracy to defraud

the Internal Revenue Service in collec

tion of taxes and under 26 U.S.C. §

7206(1) of four counts of wilfully

subscribing to tax returns which appel-

lant believed were not true and correct.

On appeal, appellant raises four bases

of reversible error. Finding all four

arguments unpersuasive, we affirm.

A-1

Appellant is a union member

cement mason. An allegedly common

practice within the cement masons’ union

is for unemployed masons to work in the

name of other masons who are union

members but not currently working in

masonry. In this scheme the latter are

referred to as “stiffs". The mason

using the stiff's name receives tax

free income and the stiff, assuming

the employer is one who has signed the

collective bargaining agreement, re-

ceives pension credits and health and

welfare benefits.

Vittorio's name was used by sev-

eral other masons during the 1970's.

His federal income tax ret urns for the

years 1974-1977 inclusive contained W-2

forms and reflected income that he had

not earned. The conspiracy charge and

proof thereof were based in significant

part x the allegation that appellant

AH2

"would provide to conspirators directly

and indirectly his name and social

security number" and “would falsely

B declare income earned by conspirators in

his income tax return.” The substantive

charges of violations of 26 U.S.C. §

7206(1) required proof that appellant

wilfully filed returns, under penalties

of perjury, that he did “not believe to

be true and correct as to every material

matter . . .-”" 26 U.S.C. § 7206(1).

At trial, the court excluded as

ae” hearsay portions of the testimony by a a

defense witness, Angelo Acca. Acca's

testimony described a 1974 telephone

call from Vittorio to Acca, in which

appellant allegedly said that he was

concerned about the W-2 forms he was |

receiving in the mail and asked Acca to =.

” ask “some of the men to stop using his “4

: name."* Acca attempted also to tes- |

a tify as to a similar 1975 conversation.

A-3

Appellant argues that the testimony

would have contradicted the proof that

he acted “wilfully,” an element neces-

sary to conviction on all counts. He

submits that part of the testimony was

nonhearsay because not offered to prove

the truth of the matter asserted and

that the rest of the testimony was

admissible under the “state of mind"

exception to the hearsay rule. Fed. R.

Evid. 803(3).

Appellee concedes that part of

the testimony improperly was excluded,

in that it was not offered to prove the

truth of the matter asserted, but con-

tends that the portion of the testimony

conveying appellant's concerns about the

W-2's properly was excluded as hearsay.

In regard to the latter, the government

argues that appellant never argued the

state of mind exception in the court

below. Furthermore, as to the testimony

o ek .

ia ae o

that concededly was excluded improperly,

no prejudice resulted from the error

and, thus, reversal is not warranted.

In relation to the four substan-

tive counts of wilfully filing inaccu-

rate tax returns, any error in the

exclusion of the testimony clearly was

harmless. All that is required for

conviction under § 7206(1) is that the

taxpayer wilfully file a tax return he

believes to be materially inaccurate.

Appellant does not refute that at the

time the returns were filed he knew he

was reporting income as his which was

not his. The excluded testimony goes

to the issue of whether or not appellant

actively sought to termminate the flow

of W-2 forms that he knew not to be his.

Even if he did so attempt, the record

reveals uncontradicted evidence that

appellant thereafter filed the.tas re-

turns, knowing that the income reported |

oe:

therein had been earned by others. The

excluded evidence, therefore, was ir-

relevant to these charges.

As to the conspiracy count, one

of the overt acts alleged is the wil-

ful filing of the inaccurate returns.

Again, the excluded testimony does not

contradict that this act wilfully was

done by appellant. Rather the testimony

reflects a possible attempt to withdraw

from the overall scheme. We note, how-

ever, that even after the conversations

in question allegedly occurred appellant

concededly performed the overt act of

filing the returns. Thus, any attempted

withdrawal was ineffective. Moreover,

appellant failed to assert a withdrawal

defense at trial and cannot raise this

argument for the first time in appeal

as a basis for the objections to the

exclusion. Second, appellant does not

claim that the testimony was intended

{ - j « ’

«| 4 ry.) | :

* ra. . pe os) | See ae. ee

aw *) . +e aoe, . +

—~

to show that he never entered into the

agreement necessary to support a con-

spiracy charge. Rather he asserts that

the testimony would have shown that (1)

appellant did not control or cause the

actions of those using his name; (2) he

did not associate himself with the

actions of those using his name; (3) he

did not know which masons were using his

name; and (4) he attempted to put an end

to the illegitimate use of his name.

The law is clear that the exis-

tence of an agreement necessary to

support a conspiracy conviction may be

proved by circumstantial evidence.

nit v ¢ 681 F.2d 717,

723 (llth Cir. 1982); United States v.

Spradien, 662 F.24 724, 727 (Lith Cir.

1981). Just as clear is the fact that

"[t)he defendant need not have knowledge

of all the details of the conspiracy;

proof is required only thet he knew of

the essential objective of the conspir-

acy.” United States v. Barnes, 681 F.2d

at 723; United States v. Tamargo, 672

P.2d 887, 889 (llth Cir. 1982). Thus,

proof that the defendant was not in

control of, did not associate directly

with, or did not know the names of

alleged coconspirators does not refute

the evidence in the record that appel-

lant knew of the objective of the scheme

and had agreed to participate. We can

say, therefore, “with[{] fair assurance,

+ « « that the judgment was not sub-

stantially swayed by the error .. .."

Kotteakos v. United States, 328 U.S.

750, 764-65 (1946). See also United

States v. Phillips, 664 F.2d 971, 1027

n.64 (Sth Cir. 1981), cert. denied, __

U.S. __» 102 &.Ct. 2964 (1982); United

States v. Rodrigues, 573 F.2d 330, 333

(Sth Cir. 1978); United States v. Rubin,

$59 7.24 975, 964-85 6&6 n.8 (Sth Cir.

J x Saal

1977), remanded on other grounds, 439

U.S. 810 (1978).°

Witness Acca allegedly contacted

an individual in response to appellant's

1974 telephone call to Acca. Appel- *

lant's second claim is that the pros-

ecutor's reference during closing

argument to appellant's failure to call

as a witness the individual that Acca

allegedly contacted was prejudicial and

reversible error. Appellant objected to

the reference at trial on the ground

that Acca‘s testimony had been ruled

inadmissible. He did not object on the

basis that the reference was wiresési~*

cial. 4 The ground for appellant's oo

jection proffered at trial is unavailing

as Acca's testimony had been allowed to

the extent of Acca's own actions and

thus the prosecutor's evidence was

relevant to that testimony. Because the

other ground or objection is raised for

the first time on appeal, reversible

error will be found only if it rises to

the level of plain error. United States

v. Pool, 660 F.2d 547, 559 n.4 (5th Cir.

Unit B 1981)°; United States v. Fox,

613 F.2d 99, 101 (5th Cir. 1980); United

States v. Haynes, 573 F.2d 236, 241 n.8

(Sth Cir.), cert. denied, 439 U.S. 850

(1978). While the reference by the

6 it

prosecutor may have been improper

does not rise to the level of plain

error. Even if appellant conclusively

had proven that he had asked Acca to

make the call to-this individual and

that the call was in fact made, no

material element of the substantive

counts or. the conspiracy count would

have been negated. In United States v.

Gibson, 593 F.2d 7 (Sth Cir. 1979),

improper references to the failure to

call an alibi witness did not rise to

the level of plain error in light of the

A-10

ait, sama)

hai ee

¥ Sa

overwhelming evidence of defendant's

guilt. Similarly here, as a matter of

law, the “defense” asserted by appellant

could not have shielded him from crim

inal liability on the offense charged.

Therefore, the prosecutor's remark

bearing upon that defense was harmless.

Cf. United States v. Smith, 591 F.2d

1105, 1110-12 (5th Cir. 1979) (pros-

ecutor's comment on failure of potential

witness to testify was error where it

struck at the heart of the defense).

Unquestionably the reference

by the prosecutor to the appellant's

failure to call this individual as a

witness was error. See United States v.

Smith, 591 F.2d 1105, 1110-12 (5th Cir.

1979) (prosecutor's comment on failure

of potential witness to testify was

error where it struck at the heart of

the defense).

Appellant's third and fourth

arguments require little discussion. He

asserts that his counsel was ineffective

in not raising a statute of limitations

defense. Where ineffective assistance

Claims have not been raised in the trial

court, they may not be raised for the

first time on direct appeal but must be

asserted, if at all, on collateral

attack. United States v. Barham, 666

F.2d 521, 524 (llth Cir.), cert. denied,

U.S. , 102 &.Ct. 2015 (1982);

" United States v. Stephens, 609 F.2d 230,

234 (Sth Cir. 1980). This rule exists

because facts are to be developed at the

trial court level, not by appellate

courts unsuited to the task. United

States v. Barham supra, 666 F.2d at 524.

Appellant's last claim is that

the trial court erred in instructing the ee

jury that, as a matter of law, appel-

lant's false statements on the tax

A-12 —

returns were “material" within the

meaning of 26 U.S.C. § 7206(1). Appel-

lant concedes that under the law in this

circuit, as established by the prece-

dents of the former Fifth Circuit,

materiality under § 7206(1) is an issue

of law to be decided by the court.

United States v. Taylor, 574 F.2d 232,

235 (5th Cir.) cert. denied, 439 U.S.

893 (1978); United States v. Haynes, 573

F.2d 236 (Sth Cir. 1978). However, he

asks us to overrule these precedents in

q favor of a rule that the question of

materiality should be submitted to the

jury. Cf. United States v. Null, 415

F.2d 1178, 1181 (4th Cir. 1969) (issue

of whether items omitted from return q

were de minimis submitted to jury).

This we decline to do. Accordingly a

: there was no error in the trial court's

instruction to the jury that appel-

lant's false statements were material, —

A-13

(me Arete

Having determined that none of

appellant's claims of error*tompel

reversal, we AFFIRM the judgment below.

[POOTNOTES TO OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT]

Entered on March 14, 1983 in

Case No. 82-5164

Non-Argument Calendar

1. Although the stiff reporting the

income normally would be liable for

income taxes due thereon, in this case

the record reflects that appellant was

. no longer working regularly as a mason

but was operating ‘Bagel Nosh’ restaur- aa

ant and deductions for business losses 5

incurred in the bagel business offset i

any tax liability. a

2. ‘Trial Record at 566-67. _ a

3. The Eleventh Circuit, in the en banc x

, decision Bonner v. City of Prichard, 661

| P.2d 1206, 1209 (11th Cir. 1981) adopted

as precedent the decisions of the former _ ae

a. A-15 el ar

Fifth Circuit rendered prior to October

. 1, 1981.

Certainly where the excluded testi-

money was only tangentially relevant, if

at all, to the dispositive issues of

existence of an agreement and overt acts

in furtherance thereof, no error of

constitutional magnitude is presented by

the exclusion of the testimony. Cf£.

Green v. Georgia, 442 U.S. 95 (1979)

° (exclusion of hearsay testimony in

sentencing proceeding resulting in death

penalty held violative of due process);

Chambers v. Mississippi, 410 U.S. 284 ‘a

(1973) (cumulative effect of several :

erroneous evidentiary rulings and exclu-

sion of hearsay testimony going directly

to guilt violates due process). Accord~ =

i ingly, we decline reasonable doubt as is 2

necessary when error of constitutional - 4

St dimension is presented. See ese : es

States v. Phillipe, supra, 664 F.2d at

1027 n. 84.

4. Trial Record at 688.

S. In Stein v. Reynolds Securities,

Inc., 667 F.2d 33, 34 (llth Cir. 1982),

this circuit has adopted as precedent

all decisions of Unit B qf the former

Fifth Circuit.

6. The reference is not protected

from being improper by apellee's as-

sertion that the witness who had not

been questioned was “peculiarly within

the power” of appellant. McClanahan

v. United States, 230 F.2d 919, 925

(Sth Cir.), rt. denied, 352 U.S. 824

(1956). The witness was equally avail-

able to both parties as is evidenced by

the fact that the prosecution did call

him to the stand. In any event, our

analysis allows us to assume arguendo,

without deciding, that the reference was

improper.

[JUDGMENT ON REHEARING OF UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT]

Entered on August 12, 1983 in

Case No. 82-5164

Non-Argument Calendar

_ Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

This cause came on to be heard on

defendant-appellant's petition for re-

hearing;

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court

that the opinion and judgment originally

entered by this Court is withdrawn; and

the judgment of the said District Court

is hereby AFFIRMED.

See) ee ee

bats

(OPINION ON PETITION FOR REHEARING

OF THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT]

Entered on August 12, 1983 in

Case No. 82-5164

Non-Argument Calendar

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

KRAVITCH, Circuit Judge

The panel having considered

appellant's motion for rehearing, said

motion is granted. The original panel

opinion of March 14, 1983, is withdrawn

and the following substituted as the new

opinion.

Appellant, Leo Vittorio, was con-

victed under 18 U.S.C. §§ 1341 and 371

of one count of conspiracy to defraud

the Internal Revenue Service in collec-

eS ,

tion of taxes and under 26 U.S.C. irae

7206(1) of four counts of willfully

subscribing to tax returns which appel-

lant believed were not true and correct.

On appeal, Vittorio raises four bases of

reversible error. Finding all four

arguments unpersuasive, we affirm.

Appellant is a union member

cement mason. An allegedly common

practice within the cement masons’ union

is for unemployed masons to work in the

name of other masons who are union

members but not currently working in

masonry. In this scheme the latter are

referred to as “stiffs.” The mason

using the stiff's name receives tax

free income and the stiff, assuming the

employer is one who has signed the col-

lective bargaining agreement, receives

pension credits and health and welfare

benefits.!

_Vittorio's name was used by

several other masons during the 1970's.

a tas

His federal income tax returns for the

years 1974-1977 inclusive contained W-2

forms and reflected income that he had

not earned. The conspiracy charge and

proof thereof were based in significant

part on the allegation that appellant

“would provide to conspirators directly

and indirectly his name and social

security number" and “would falsely

declare income earned by conspirators in

his income tax return." The substantive

charges of violation of 26 U.S.C. §

7206(1) required proof that appellant

willfully filed returns, under penalties

of perjury, that he did “not believe to

be true and correct as to every material

matter . . ++" 26 U.S.C. § 7206(1).

At trial, the court excluded as

hearsay portions of the testimony of a

defense witness, Angelo Acca. Acca's

testimony described a 1974 telephone uty

call from Vittorio to Acca, in which

—

———

appellant allegedly indicated his

concern about the W-2 forms he was re-

ceiving in the sad? and asked Acca to

ask “some of the men. . . to stop using

his name. n2

Acca attempted also to

testify as to a similar 1975 conversa-

tion. The court allowed the testimony

to the extent that the telephone calls

from appellant to Acca were made, and

that Acca thereafter told other masons

they should not be using appellant's

name “because of the problem he was

having with all the W-2 Forms coming

in."? Acca's testimony that ultimate-

ly was struck was the contents of

appellant's direct statements to

Acca, particularly that appellant asked

Acca to get in touch with some of the

men and that Vittorio was concerned

about the W-2 forms.

Appellant argues that neither

~“#

Pah

Appellee concedes that the testimony

about appellant's request for Acca to

contact some of the men was improperly

excluded as hearsay, but argues that the

testimony that appellant was “concerned”

is hearsay because offered to prove the

truth of the matter asserted. Appellant

says that even this latter testimony was

not hearsay (1) because it merely con-

veyed Acca‘'s characterization of the

conversation or (2) because it was not

offered for its truth but was circum-

stantial evidence of an innocent state

of mind. Alternatively, appellant

contends that even if it was -hearsay it

is inadmissible under the state of mind

exception to the hearsay rules. Fed.

R-Evid. 803(3).

Even assuming for these purposes

that all of the struck testimony was

excluded erroneously and was nonhearsay,

we can say “with{] fair assurance, . -

” : Pas

. ae > : >

A-23 Fg Be 3

2s : : ">

3 ‘ 7

‘ s 5 = ‘

that the judgment was not substantially

swayed by the error . +. «," Kotteakos v.

United States, 328 U.S. 750, 764-65

(1946), and therefore any error was

harmless. See United States v. Phil-

lips, 664 F.2d 971, 1027 n.84 (5th Cir.

1981), cert. denied, ___U.S. __, 102

S.Ct. 2965 (1982); United States v.

Rodriguez, 573 F.2d 330, 333 (5th Cir.

1978); United States v. Rubin, 559

F.2d 975, 984-5 & n.8 (Sth Cir. 1977),

remanded on other g , 439 U.S 810

(1978) .4

First we emphasize tht contrary

to the representations made by appel-

lant, the jury was not instructed to

disregard Acca‘s testimony that he

received telephone calls from Vittorio |

or that Acca thereafter told other

masons that they should not be wing

Nittorio's name. This testimony conveys

| the seage that Vittorio — fort

wished the use of his name to stop and

that Acca was acting in response to

Vittorio's telephone calls.

In relation to the four substantive

counts of willfully filing inaccurate

returns, any error in the striking of

the testimony clearly was harmless. All

‘that is required for conviction under §

7206(1) is that the taxpayer willfully

file a tax return he believes to be

materially inaccurate. “CwJjillfulness

in this context simply means a volun-

tary, intentional violation of a known

legal duty.” United States v. Pomponio,

429 U.S. 10, 97 S.Ct. 22, 24 (1976).

The record reveals uncontradicted

evidence that even after the telephone

calls to Acca, appellant intentionally

filed tax returns, Reporting” income as

his that he knew was not his. ‘Even if,

as eprel tent alleges in ats, petition for r

nas

eee -

- 4

fo we ss

forms were received in his name they

should be filed with his return and not

ignored, the legal duty at issue here is

to file an accurate return. Knowledge

of that legal duty is attested to by

each and every taxpayer who signs and

files a tax return. Concern for the

“a

influx of the W-2 forms and an attempt

to stop their flow have no bearing on

appellant's subsequent intentional

violation of the known legal duty to

file an accurate return. Even if they

had some remote, circumstantial bearing,

the testimony of Acca that was not ex-

cluded substantially conveys the same

message as the struck testimony so that

the exclusion was harmless.

Ag to the conspiracy count, one

of the overt acts alleged was the will-

“a ct: filing of the inaccurate recgney : is

, vant to whether this: witleut fining |

ig SUE oo ak Se

go % Y

Re OS See 0G AOE: OF POOHtR

occurred. Appellant asserts that the

relevance and the harm flowing from the

exclusion of the evidence is in relation

to his contention that he never entered

into an agreement necessary to support a

5 It borders on

conspiracy conviction.

the ridiculous to consider, given Acca's

admitted testimony, that any jury faced

with the evidence of appellant's willful

filing of the inaccurate returns, his

knowledge of whom to contact to attempt

to stop the flow of W-2 forms, and the

testimony of his wife that “([wle were

fully aware that his name had to be

running wild in New York,” and that they

did not call the union to stop the flow

of W-2's because “that would have caused |

would have entertained an otherwise non~ eee

existent reasonable doubt Naas sg the i

allowed to consider the substance of the

telephone calls to Acca. The jury was

allowed to consider the testimony that

Vittorio made the telephone calls and

that Acca thereafter took action to stop

the flow of forms. The jury neverthe-

less convicted appellant.

The law is clear that the exis-

tence of an agreement necessary to

support a conspiracy conviction may be

proved by circumstantial evidence.

United States v. Barnes, 681 F.2d 717,

723 (llth Cir. 1982); United States v.

Spradlen, 662 F.2d 724, 727 (llth Cir.

1981). Just as clear is the fact that

"CtJhe defendant need not have knowledge

of all the details of the conspiracy;

proof is required only that he knew of

the essential objective of the conspir-

acy." United States v. Barnes, 681 F.2d

at 723; United States v. Tamargo, 672

F.24 887, 889 (lith Cir. 1982). We can

Sg” ye

SPE 6 he a GRE ~

say with “fair assurance” that if the

jury convicted Vittorio on the evidence

before it, the exclusion of these bits

of testimony did not substantially

contribute to that decision. Kotteakos

v. United States, 328 U.S. 750, 764-65

(1946). Any error in excluding the

testimony was harmless.

Witness Acca allegedly contacted

an individual in response to appellant's

1974 telephone call to Acca. Appel-

lant's second claim is that the prose-

‘eutor's reference during closing argu-

ment to appellant's failure to call

as a witness the individual that Acca

allegedly contacted was prejudicial and

reversible error. Appellant objected

to the reference at trial on the ground

that Acca’ 's testimony had been ruled

heatntonsetiig ‘He 4: not iow on nthe be

2 4

ebe

. * "an,

eh eee

anes

. Treg > >)

. ee ee EN aie

tion proffered at trial is unavailing as

Acca's testimony had been allowed to the

extent of Acca's own actions and thus

the prosecutor's argument was relevant

to that testimony. Because the ground

of prejudice is raised for the first

time on appeal, reversible error will

be found only if it rises to the level

of plain error. United States v. Pool,

660 F.2d 547, 559 n.4 (Sth Cir. Unit

B 1981);° united states v. Fox, 613

F.2d 99, 101 (Sth Cir. 1980); United

States v. Haynes, 573 F.2d 236, 241 n.8

(Sth Cir.), cert. denied, 439 U.S. 850

(1978).

Unquestionably the reference by

the prosecutor to the appellant's

failure to call this individual as a

witness was error. See United States v.

Smith, 591 F.2d 1105, 1110-12 (Sth Cir. 3 a

1979) (prosecutor’ 8 comment on fatture,

of peugicge ot witness ae _teatity Mees

Re fee I Sta

error where it struck at the heart of

a the defense). Purthermore, the refer-

ence is not protected from veing improp- |

er by appellee's assertion that the

witness who had not been questioned was

“peculiarly within the power” of appel-

lant. McClanahan v. United States, 230

P.24 919, 925 (Sth Cir.), cert. denied,

352 U.S. 824 (1956). See also United

States v. Parr, 516 F.2d 458, 471 (5th

. Cir. 1975). The witness was equally

available to both parties as is evi-

denced by the fact that the prosecution

did call him to the stand.

We conclude, however, that the

improper references did not rise to the

level of plain error. United States v-

Gibson, 593 F.24 7 (Sth Cir. 1979) (im

be SE

“sae a

proper references to the failure to ~

"eal an alibi witness did not rise to

> The

aaa Mu

+ _ the evel of plain error in light of

{plain error] rule is to be invoked only

in exceptional circumstances to avoid

a miscarriage of justice." Eaton v.

- United States, 398 F.2a 485-486 (5th

Cir.), cert. denied, _—-U.S. __, ~89 :

S.Ct. 299 (1968). Given the weight of

the evidence and our judgment that even ;

if appellant conclusively had proven

that Acca had made the disputed contact

the evidence still would have been :

9 regardless of

sufficient to convict,

whether the jury would have convicted,

- "Cwle cannot say that [appellant was]

denied e fair trial." Id. Accordingly, 3

the reference did not rise to the level a

of plain error. . |

Appellant's third and fourth argu-

ments require little discussion. He

asserts that his counsel was ineffective

/ in not raising a statute of er ts

7 ee

> ‘ py am

4 “A ae hgh

> SH

CS, eee

> Lis _ fas

: court, they may not be raised for the

first time on direct appeal but must be

asserted, if at all, on collateral

9 attack. United States v. Barham, 666

F.2d 521, 524 (llth Cir.), cert. denied,

U.S. __, 102 S.Ct. 2015 (1982);

United States v. Stephens, 609 F.2d 230,

234 (5th Cir. 1980). This rule exists

because facts are to be developed at the

trial court level, not by appellate

. courts unsuited to the task. United %

| io

States _v- Barham supra, 666 F.2d at 524. 4

- Appellant's last claim is that fe

the trial court erred in instructing

the jury that, as a matter of law,

appellant’s false statements on the

tax returns were “material” within the

‘meaning of 26 U.S.C. § 7206(1). Appel- a

circuit, as established by the prece- r :

Gents of the former Fifth Ciroudt, — ay

materiality under $ 7206(1) is an desks:

te, 5°

4 « o>» la -

; ‘ - ae \ g Beg ” °

a . : ~ 9 i eae ¥ :

° ., . ’ : +3 ef

’ - @ led

at _— at ral P “> ~ >. ¥

% ‘ 77 ‘ ws ® y . oo? ‘ « a

_e - ** as &¥ < . 5 Ay ‘. y .

am i | Poe

i » ty 7 o a.

a, ee - PA +

Af.

of law to be decided by the court.

United States v. Taylor, 574 F.2d 232,

235 (Sth Cir.) cert. denied, 439 U.s.

893 (1978); United States v. Haynes, 573

FP.24 236 (5th Cir. 1978). However, he

asks us to overrule these precedents in

favor of a rule that the question of

materiality should be submitted to the

jury. Cf. United States v. Mull, 415

F.2d 1178, 1181 (4th Cir. 1969) (issue

of whether items omitted from return

were material submitted to jury). This

we decline to do. Accordingly there was

no error in the trial court's instruc-

tion to the jury that appellant's false

statements were material.

Having determined that none of

appellant's claims of error compel

reversal, we AFFIRM the judgment below.

ag ee I os

[POOTNOTES TO OPINION ON PETITION

POR REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT)

Entered on August 12, 1983 in

Case No. 82-5164

Non-Argument Calendar

1. Although the stiff reporting the

income normally would be liable for

income taxes due thereon, in this case

the record reflects that appellant was

no longer working regularly as a mason

but was operating a restaurant and

deductions for business losses incurred

in the business offset any tax liabil-

ity. ,

2. Trial Record at 566-67.

F.2d 1206, 1209 (lith Cir. 1981) adopted

as precedent the decisions of the former

Fifth Circuit rendered prior to October

1, 1981.

Certainly where the excluded testi-

money was only tangentially relevant, if

at all, to the dispositive issues of

existence of an agreement and overt acts

in furtherance thereof, no error of

constitutional magnitude is presented by

the exclusion of the testimony. Cf.

Green v. Georgia, 442 U.S. 95 (1979)

(exclusion of hearsay testimony in

sentencing proceeding resulting in death

penalty held violative of due process);

Chambers v. Mississippi, 410 U.S. 284

(1973) (cumulative effect of several

erroneous evidentiary rulings and exclu-

sion of hearsay testimony doing directly

to guilt violates due process). Accord-

po ee Soren oe 4

ment to wate? EY Ate ABN Pee oe a

ae ed er

reasonable doubt as is necessary when

error of constitutional dimension is

presented. See United States v. Phil-

lips, supra, 664 F.2d at 1027 n. 84. As

appellees point out in their response to

the petitionm-for rehearing, to extend

the “constitutional” harmless error

standard to this type of case would be

to apply it to every erroneous eviden-

tiary ruling.

5. Appellant also makes the argument

that but for this evidentiary ruling he

anit Shhes offered withdrawal from the

conspiracy as a defense. Wo indication

of a desire to make such an argument was

made at trial and no objection to the

striking of this testimony was snae

on this basis. Appellant cannot now

proffer a potential defense that was

never made:at trial as evidence of

prejudice from the trial court's ruling.

6. Trial Record at 606-07. |

7. Trial Record at 688.

4 8. In Stein v. Reynolds Securities,

Inc., 667 F.2d 33, 34 (1lth Cir. 1982),

this circuit has adopted as precedent

all decisions of Unit B of the former

Pifth Circuit.

9. This is particularly true given the

absence of any proffered withdrawal

defense. See note 5 supra.

[ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH

-~*

CIRCUIT]

Entered on October 14, 1983 in

Case No. 82-5164

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges. 3

PER CURIAM:

( XX ) The Petition for Rehearing is

DENIED and no member of this panel nor

Judge in regular active service on the

Court having requested that the Court be

polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 26), the Sugges-

tion for Rehearing En Banc is DENIED.

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