Opposition — Cody v. United States

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3u the Supreme Court of the United States

OCTOBER TERM, 19838

JOHN CODY, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

TABLE OF CONTENTS

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases :

Arroyo V. United States, 369 U.S. 419 _...........18, 14, 15

California V. Green, 399 U.S. 149 17

Chapman V. California, 386 U.S. 18 16

Dutton v. Evans, 400 U.S. 74 16,17

Harrington V. California, 396 U.S. 250 00000... 116

Klein v. Harris, 667 F.2d 274 8, 16

Schneble Vv. Florida, 405 U.S. 427 16

Steele v. Taylor, 684 F.2d 1198, cert. denied, No. 82-

65092 (Mar. 28, 1983) 18

United States V. Agurs, 427 U.S. 97 7, 9, 10,11

United States v. Castillo, 615 F.2d 878 17

United States v. LeRoy, 687 F.2d 610, cert. denied,

No. 82-5571 (Jan. 24, 1988)

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Cases—Continued : Page

United States v. Snow, 621 F.2d 780, cert. denied,

. 423 U.S. 1090 17

i. United States v. Starusko, T29 F 2d 256 11

- United States v. Thevis, 665 F.2d 616, cert. denied,

ig 456 U.S. 1008 18 a

Ne United States ex rel. Marenza Vv. Gengler, 574 F.2d .

a 780 11 M4

t Constitution, statutes and rules :

iz U.S. Const. Amend. VI (Confrontation Clause) .... 17 p

18 U.S.C. 1964 2

, 18 U.S.C. 1961(1) 12 ?

os. ° 18 U.S.C. 1961 (5) 12

‘% 18 U.S.C. 1962(c) 2,7

P 26 U.S.C. 7206 (1) 2

29 U.S.C. 186(a) 18

g 29 U.S.C. 186(b) 14

* 29 U.S.C. 186(b) (1) ...2, 8, 18

29 U.S.C. 186(c) 14,15 *

‘= Fed. R. Crim. P. ag

a Rule 83 6 a

* Rule 62(a) 17

Fed. R. Evid. 804(b) (6) 6, 15

In the Supreme Court of the United States

OcTosEr TERM, 1983

CODY, PETITIONER

v.

No. 83-1374

JOHN

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

A238) is reported at 722 F.2d 1052.

the

court

2

tioner, a union official, was convicted on one count of

VITI).2 He was sentenced to concurrent terms of five

years’ imprisonment on the racketeering and tax

evasion counts; to a concurrent three-year term on

the false filing count; to concurrent one-year terms on

each illegal benefits count; and to fines totaling

$80,000. The court of appeals reversed petitioner’s

conviction on one of the illegal benefits counts (Count

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law enforcement authorities which might reasonably

reflect on the witness’ motives and Peas with

the government” (Pet. App. pein see request,

(1976), for determining whether a new trial was

warranted was whether, when evaluated in the con-

text of the entire record, the evidence in question

created a reasonable doubt as to petitioner’s guilt that

stantial] possibility of a prejudicial spillover effect”

(Pet. App. A17-A18).°

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3 rectly attributable to petitioner’s own incomplete

presentation of the issues to that court.”

Petitioner thus raises no question of general im-

not conflict with them. Moreover, even had petitioner

properly presented his current argument in the courts

: below, there can be little question that his convictions

. would have been affirmed. Where evidence is sought

merely for impeachment purposes, it is deemed ex-

a culpatory only when “the credibility of the witness

x may be determinative of a criminal defendant’s guilt

or innocence.” United States v. Starusko, 729 F.2d ;

256, 260 (3d Cir. 1984); United States ex rel Mar-

enaa Vv. ler, 574 F.2d 730, 785 (3d Cir. 1978);

see also United States v. Phillips, 664 F.2d 971, 1026

(11 Cir. 1981), cert. denied, 457 U.S. 1186 (1982).

By the same token, even where a specific request for

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two predicate crimes are needed to obtain a con-

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2. Petitioner claims (Pet. 16-18) that a union of-

ficial cannot be convicted of an unlawful receipt of

benefits under 29 U.S.C. 186(b)(1) without proof

that the employer of the individuals who supplied the

benefits “intend[ed] to confer a benefit” on him.”

union represen their workers, and Section 186

(b)(1) prohibits union officials from accepting any q

: such payments. As this Court observed in Arroyo ‘

v. United States, 359 U.S. 419, 423-424 (1959) (cita- |

q tions omitted) : ;

This is not to say that the statute requires mu-

a have letrned of his threats to Strong (assuming he did iz

“The district court charged the jury that, although it 9

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Petitioner contends (Pet. 19-20) that in making

this determination the court of appeals improperly

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hearsay evidence constitutes a violation of the Con-

frontation Clause requiring application of the consti-

tutional harmless error doctrine. In Dutton v. Evans,

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