# Petition — Vittorio v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 937

## Text

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88-1148 Pre wm 4s
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

.
)

Se

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

a

ey Re.
oe ee eee.

7
4

1967)?

(

is

Table of Contents

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

Jurisdiction ‘oe: 6 owe

Constitutional Provisions,

and Statute Involved ..

Statement of the Case ...-.

I.

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:

Pe
«<- Me

19

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,

27

14

“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 »
P
(8th Cir. 1983) ....-s

25,

13,

13,

13,

18,

28
14

14

15

16
14
14
20

21

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,
F.
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

23
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.),
Ts
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, *

4
° 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,
P

(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
a
F STATUTES AND RULES Bee
* 18 0.8.C. § SUR é 0 4 eheiie’s . “ roe hey % 4

.
.
7
.
.
~
wo
~
~~
o
~
N
N
n
a
.
12)
.
a
.
D
@o
-

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

- 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

ae

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
I.
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

4
j

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

a

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).

a
~ 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"

i

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),

F
5
o
om
ig
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.

: }
iY

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-

?
te
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-

rf
a et oer
EL EP

ee

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.
pe

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
an

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

ie

We
sy

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 = +?
: ;
J

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).

4
4

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
ah
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

e

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

i

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

Ms
~“#

4
.
Pah
¢
t

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 |
6
*

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

4
=

2 4
if
ad
ebe
4

oy
. * "an,

oe

a
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

a

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

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
lant concedes that under the law in this © 4/4
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1088%3A1. Public record. Not legal advice.