# Petition — Jennings v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1227

## Text

In The

Supreme Court of the United Stutes
October Term, 1983

UNITED STATEs OF AMERICA,

Appellee
VS.

MELVIN R. JENNINGS,

Appellant

JURISDICTIONAL STATEMENT FOR A WRIT OF
CERTIORARI TO THE SUPREME COURT OF THE
‘UNITED STATES, FROM A JUDGMENT OF THE FIFTH
CIRCUIT COURT OF APPEALS OF THE UNITED

STATES

EDDIE H. TUCKER, JR.
800 North Farish Street
P. O. Box 39205
Jackson, Mississippi 39205-2169
(601) 948-1120
Attorney for Appellant

’

a ea oe Re

In The

Supreme Court of the United Stxtes

October Term, 1983

UNITED STATES OF AMERICA,
Appellee
VS.
MELVIN R. JENNINGS,

Appellant

JURISDICTIONAL STATEMENT FOR A WRIT OF
CERTIORARI TO THE SUPREME COURT OF THE
UNITED STATES, FROM A JUDGMENT Of THE FIFTH
CIRCUIT COURT Ot APPEALS OF THE UNITED
STATES

EDDIE H. TUCKER, JR.
800 North Farish Street
P. O. Box 39205
Jackson, Mississippi 39205-2109
(601) 948-1120
Attorney for Appellant

ll
QUESTIONS PRESENTED
(1) Whether the United States Supreme Court’s power of super-
vision should be invoked in this case to assure that the Fifth Cir-
cuit Court of Appeals allow the Appellant equal protection of
the law by ruling consistently with prior decisions of the Fifth
Circuit.

(2) Whether the fines imposed on the Appellant by the District
Court were excessive, when the alledged proof showed in the Peti-
tion for Rehearing only $19.12 allegedly obtained from the U.S.A.
by the Appellant.

(3) Whether the Appellant is entitled to a clear and non-
contradicting opinion from the Fifth Circuit as to summary charts
being voluminous and requiring and expert, and simultaneously
ruling that the preparer of the summary chart, though not an
expert was qualified to testify on the summary charts.

(4) Whether the Appellant was entitled to have the terms of
the U.S.D.A. contract between the State of Mississippi and the
Appellant adhered to by the contracting parties, prior to criminal
proceedings being instituted against Appellant.

(5) Whether the Appellant was subject to an indictment under
18 USCA 287, when no money was established as lost by the U.S.
Government or any agency thereof prior to indictment.

(6) Whether Appellant was denied Due Process when the trial
judge ruled that FRE 606(b) precluded the court from consider-
ing the published statements by two jurors that the verdict in the
Appellant case was not unanimous.

”

(7) Whether Appellant was denied Due Process when he was
suspended from the practice of law without a hearing simply
because the same judge conducting the trial also did the suspen-
ding, while never informing the Appellant that his defense of the
indictment was also his defense of his licence, or that Appellant
was burdened with a dual burden of defense at his trial.

(8) Whether the Appeilant was entitled to be informed by the __

U.S.D.A. investigator that Appellant was suspected of criminal
activity, even though the U.S.D.A. has a policy of not inform-

ing suspects that they are criminal suspects, while being audited.
(9) Whether the Appellant was denied a fair trial following the

U.S. Attorney's failure to obey the court orders of Discovery. — | .

iii
TABLE OF CONTENTS
Page
Parties to This Proceeding in the Court of Appeals ........ i
Questions Presented ........cccceccccscccccsccccccecess ii
ccc vececteescevenesseeus iv, v
I PU cn sve ccdsccesecaccccesccccemenee 2
ET I. og ccc ncagocccocscescs a is -
i 3... pcdk ease bees cendeseecnss 4
Prior Opinion, Official and Unofficial Reports ........... 5
oe Dee cnsdeepesesevedasd 6
Statutes Conferring Jurisdiction .............-...-+2+e005 6
ee i. ot ccptocceeessesnss et 7-10
ss Wo Cwncancscvevcecsctvenss 10-13
Reasons for Granting the Writ ..................005. 13-22
EE 22-23
Appendices:

EE iy MID bocce dcscicccccccccccccce Al-A24

Appendix B, The Honorable
William H. Barbour, Jr. Rulings................ B1-B6
Appendix C, Petition for Rehearing.............. C1-C35
Appendix D, Denial of Petition .................. D1-D2
Appendix E, Denial of Recall and Stay ............ E1-E2
Appendix F, Notice of Appeal ...............--++- F1-F3

iv

TABLE OF AUTHORITIES

Page
CASES:
Baines v. United States of America,
(Sth Cir., 1970) 426 F.2d 842.8 ...............4.. 10, 13
Nordamann v. National Hotel Company,
oo Be MR Eo ae 6 ee eres 13, 16

Meriwether v. United States,
486 F. 2d 498 (Sth Cir., 1973) Cert. denied,
417 U.S. 948, 94 S. Ct 3074, 41 L. Ed. 2d 668 (1974) ..13

Gordon v. United States,

438 F. 2d 858, 976 (Sth Cir., 1971), Cert. denied,

404 U.S. 828, 92 S. Ct. 63, 30 L. Ed. 2d 56 (1971)..... 15
Wheeler vs. Glass, CA, ILL, 1973, 473 F. 2d 983 ........ 14

McGee v. Schmidt, D.C., Wis., 1976, 411 F. Supp. 43....14

In Re Ming, 469 F. 2d 352 (7th Cir., 1972) .......... 19, 20
United States v. Friedland, 502 F. Supp. 611 (DGNJ, 1980)

affirmed 672 F. 2d 905 (1981) ........ settee teen ees 19
In Re Ruffalo, 390 U.S. $44, 88 S. Ct. 1222,

SOL... Gib. OG (EE CURR coke sve scicastine toveus g because of their inability to reach
a verdict based on the evidence presented by the prosecution and
the court’s insistance that they reach a verdict. (Appendix C, Ex-
hibit E).

A Notice of Appeal (Appendix F) has been timely filed and
following the Notice of Appeal, Appellant filed a Motion for En
Banc Consideration by the Fifth Circuit Court of Appeals of the
Order denying recalling the case. The court, without an Order,
returned the motion without filing the Motion and stated in a
cover letter that this Court did not consider administrative mat-
ters En Banc.

The Appellant's attorney has informed the court that the Mo-
tion was procedural and not administrative. The Fifth Circuit
has not replied to that communication.

STATEMENT OF THE REASONS WHY THE
QUESTIONS PRESENTED ARE SO SUBSTANTIAL
AS TO REQUIRE PLENARY CONSIDERATION

Question No. 1 is presented for the following reasons:

In the instant case, the opinion rendered by the Fifth Circuit
Court of Appeals, directly conflicts with the following cases and
authorities issued or used by the Fifth Circuit Court of Appeals:

(1) Baines v. United States.of America, Sth Circuit 1970, 426
F 2d 842.8

(2) Nordamann v. National Hotel Company, Sth Circuit, 1970,
425 F 2d 1104

(3) United States v. Meriwether, 486 F. 2d 498 (Sth Circuit,
1973) cert. denied, 417 U.S. 948, 94S. Ct 3074, 41 L. Ed.
2d 668 (1974)

us
ma ee.

afte

(4) Gordan v. United States, 438 F. 2d 858, 976 (Sth Cir. 1971),
cert. denied, 404 U.S. 828, 92 S. ct. 63, 30 L. Ed. 2d 56
(1971).

(5) Federal Rules of Evidence, Rule 1006

The resulting fact is that the opinion created new case law which
conflicts with existing case law established by the Fifth Circuit,
i.e., the summary charts used by the prosecution and presented
by an alledged expert witness did not meet the threshold requir-
ment of Rule 1006, FRE. These charts, not in accord with this
rule (1006), (1) did not contain facts and figures supported by
evidence; (2) they did not reflect such facts and figures in a neutral
fashion as is required, but instead attempted to interpret such
facts and figures to fit the government’s theory of the case; (3)
drew conclusions of facts and law, which not only invaded the
province of the jury, but were in fact pre-emptive in nature; and
(4) the conclusions drawn were based on averages and pro-
babilities. Because of the above mentioned statements of fact,
the Appellant, like the Baines v. United States of America case,
(Sth Circuit, 1970, 426 F. 2d 842.8), requested that this case be
reversed and remanded. The use of the summary charts in the
instant case and Baines v. United States, supra, were highly pre-
judicial to the defendants. The Fifth Circuit Court of Appeals
reversed and remanded the Baines case and the same court af-
firmed the lower court’s decision in the Jennings case.

It is for the above reasons that the Appellant has requested
this court to grant the Writ of Certiorari so that precedents be
retained uniformly, and that the Appellant might be afforded
equal protection of the law, as is his constitutional right via the
14th Amendment.

az.
Question No. 2 is presented for the following reasons:

In considering Amendment 8 of the U.S. Constitution, “an ex-

cessive sentence may be invalid under this amendment solely.

because of disproportionality” (Wheeler v. Glass, C.A. Ill. 1973,
473 F. 2d 983) (McGee v. Schmidt, D.C. Wis., 1976, 411 F. Supp.
43). This disproportionate punishment inflicted upon Appellant
is considered cruel and unusual by the Appellant and violative

ite

of his 8th Amendment Constitutional right because it is not
graduated or proportioned to the offense, expecially when there
have been similar cases in the same jurisdiction for the same of-
fense with much more lenient sentences or fines, i.e., U.S. vs.
Edgar C. Lloyd, Jr., Fd. 2nd, former top advisor to Governor
Cliff Finch and former director of the State Employment Security
Commission who embezzled $216,000.00 from the Government.
He received a 20-month sentence with a $3,000.00 fine; whereas,
Jennings received a 6-month sentence with a $30,000.00 fine for
alledgely submitting false claims, although no amount of money
was determined to be missing by the court or the indictment. For
this court to allow a precedent to be set as disproportionate as
in this case would lay a foundation for the taking of property
without a hearing; create involuntary servitude for the govern-
ment; sanction a legal technique for cruel and inhuman treat-
ment; and encourage similar disproportionate fines against our
citizenry. For these substantial reasons, the Writ of Certiorari
should be granted.

3.
Question No. 3 is presented for the following reasons:

It is evident that the opinion rendered is vague and unclear
as to certain aspects of the case.

It is unclear, as to the lower court’s need for summary charts,
presumably based on voluminous records, and also if the witness
used to make these summary charts should have been an expert,
and further, should these charts have been ascertained by the court
with certainty that they were based upon and fairly represented
competent evidence already before the jury, and that this witness
was an unbiased one. (Gordon v. U.S., 438 F. 2d 858, 876 (Sth
Circuit 1971), cert. denied, 404 U.S. 828, 92S. ct. 63, 30 L. Ed.
2d 56 (1971). These issues are crucial to the Appellant in that
his conviction was centered primarily on the summary charts.

In the instant case a precedent is being set that identifies by
number the pages required to make a subject matter voluminous
and therefore needing summary charts. The precedent states 200
plus pages. The fact is that only 59 pages existed in this case.
This case attempts to honor the requirement of an exvert, while

=_

simultaneously establishing as law that the chart preparer,
acknowledged by the court as not an expert, was qualified to
prepare and testify from, and change three (3) times during his
testimony, summary charts. This precedent has broad effects on
summary charts, expert witnesses, voluminous records, and is
repugnant to the Federal Rules of Evidence, rule 1006.

The issues raised in this case on this subject is substantial and
far-reaching enough to justify this court granting the Writ of Cer-
tiorari that this Court might constitutionally consider the final
stamp of approval or disapproval of the precedents being set by
this case.

4.
Question No. 4 is presented for the following reasons:

Under the terms of the contract between the Appellant and
the Department of Education, it clearly states in the Federal
Register/vol. 45, no. 14, 1980 Rules and Regulations 228.15, that
“the State Agency shall notify the institution of reasons for any
disallowance or demand for repayment, and allow the institu-
tion full opportunity to submit evidence on appeal as provided
for in § 226.7. Minimum State Agency collection procedures for
unearned payments shall include: (1) written demand to the in-
stitution for the return of improper payments; (2) if, after 30
callendar days, the institution fails to remit full payments or agree
to a satisfactory repayment schedule a second written demand
for the return of improper payments is made; (3) if, after 60 days,
the institution fails to remit full payment or agree to a schedule,
the State Agency will then and only then refer the claim to the
appropriate state or federal authorities for pursuit of legal
remedies.”

The State Agency failed to comply with the guidelines establish-
ed by congress governing overpayments or repayments to the U.S.
Department of Agriculture and agreed upon between the four
(4) contracting parties.

This court should establish as law prohibition of criminal pro-
secution of offenses such as this, prior to the full enforcement
of government contractural agreements. Government Agencies
should concur with every aspect of the agreements and exhaust

wh
‘
io

~ia

every measure of resolution above and beyond that of any con-
tract before criminal procedures are invoked. For this court to
allow this ruling to stand, is to sanction criminal prosecution
where no restitution is requested per contract; to flcod the Federal
Courts with criminal cases; to add to the jail population and to
encourage excessive fines. This court should not establish as law
a method of proceeding against individials contracting with the
government, which would be discretionary with local prosecutors,
and contrary to the congressional intent of the legislature
establishing the programs that lead to the government contrac-
ting with an individual. A most grave precedent is being establish-
ed in the instant case, which if allowed to stand, would have far
reaching effect upon many vast areas of existing law, which will
surely errode the constitutionally protected rights of individuals,
and cause congress to cry encroachment of powers by the courts.
For this reason, the Writ of Certiorari should be granted.

7
Question No. 5 is presented for the following reasons.

In the instant case, a civil contract was entered into between
the U.S. Government and the State of Mississippi and a private
non-profit corporation and the appellant. It was a U.S.D.A. con-
tract for the feeding of pre-school age children in a child care
center. The contract was all inclusive of disbursements, over-
payments, reclaiming overpayments, and by whom, which in this
case simply progressed backwards, and ultimately would be the
responsibility of the U.S. Government when all else failed as to
collections. The collection provisions of the U.S.D.A. regulation
and therefore the contract states the collection of money. In this
case, the Appellant was indicted under 18 USC 287, even though
no money, not even one dollar, was ever alleged to have been
taken by the Appellant from the U.S. Government. Surely it is
difficult to conceive of a Federal District in our United States
of America that could convince a Federal Grand Jury to return
an indictment considering these circumstances; but it did hap-
pen in this case, and the vehicle was 18 USC 287, i.e., the know-
ing and intentionally submitting a false claim to the Government.
The words “False Claim” implies that one intends to get something
from the Government that he is not entitled to. In this case, an

indictment was rendered because somebody believed that the Ap-
pellant intended to submit a false claim to the government. Not
that the Appellant did, but only intended to do so. The scenario
of this case creates 18 USC 287 as a weapon for prosecutors. This
court should carefully consider this entire case, and resulting
therefrom establish specific guidelines which ought to conclude
that a false claim must actually be sumbitted before an indict-
ment may be sought under 18 USC 287. Because these guidelines
suggested do not already exist, the Appellant has been branded
a criminal via indictment, with the prosecutor having the privilege
to “witch hunt” for supporting evidence after the indictment. The
evidence in this case is so close to being non-existing, that even
the Circuit Court so stated in its opinion. 18 USC 287 apparent-
ly is being used as a “catch-all” statute. That is to say, “if we
can not get him one way, we’ll get him under 18 USC 287”. This
Court should establish as clear law that 18 USC 287 is not to
be used in factual situations as enumerated in this case. For to
do otherwise, is to ordain unimaginable chaos. For this reason,
the Writ of Certiorari should be granted.

6.
Question No. 6 is presented for the following reasons:

The verdict of guilty on four counts and an acquittal of eight
counts was delivered by the jury. The verdicts were unorthodox.
Two of the jurors reported in published interviews that che ver-
dicts were not unanimous. They indicated a democratic system
of voting, due to the coercive effect of the Allen Charge impos-
ed by the Court. It is the Appellant’s position that allowing ver-
dicts to be beyond reach as indicated by FRE 606B, only pro-
mote injustice. Guidelines should be established by the United
States Supreme Court in regard to FRE 606B, especially in in-
stances as flagrant and insulting to the basic principle of a
unanimous verdict, as in this case. This court must not allow a
standard of less than unamious verdicts to be the new law. For
this reason the Writ of Certiorari should be granted.

—~19~—

7.
Question No. 7 is presented for the following reasons:

The Appellant was summarily suspended by the trial judge at
sentencing as a part of the sentence imposed against him, from
practicing law in all Federal Courts of the Southern District of
Mississippi. In the matter of William R. Ming, 469 F. 2d 352
(CA 7, 1972) and United States vs. Friedland, 502 F. Supp. 611
(DGNJ, 1980), affirmed 672 F. 2d 905 (1981) is considered by
the Appellant to be of exceptional importance. In the Ming case,
the defendant was indicted and charged with four counts of
willfully and knowingly failing to make timely income tax returns.
The defendant was also a practicing attorney and was found-guilty
on all four counts. Following his conviction he was also suspended
from practicing law. The Seventh Circuit Court of Appeals rul-
ed that “without reaching the merits of the suspension, we reverse
for two reasons: (1) the suspension for conviction of a misde-
meanor took place before the conviction had reached finality;
(2) the lack of hearing before the executive committee constituted
a denial of due process of the law,” and it is only fair and just
that the government not subject any person to such a drastic
divestment without affording him substantial due process of law.

This Seventh Circuit decision is supported by the case of In
re Ruffalo, 390 U.S. 544, 88S. Ct. 1222, 20 L.Ed. 2nd 117 (1968),
wherein the Supreme Court upheld that “disbarment, designed
to protect the public, is a punishment or penalty imposed on
lawyers. Appellant is accordingly entitled to procedural due
process.

The case, however, holds that an attorney may be suspended
while he is in an appeal and before his conviction reaches finali-
ty. However, it is most important to note that even in the
Friedland case, the attorney was granted a due process hearing
prior to being suspended. Friedland does not argue against pro-
cedural due process, but in fact reinforces the right to due pro-
cess, which is recognized by all Federal Appellant Courts.

In the instant case, not only was the Appellant suspended while
his case was on appeal, but the district court denied him a hear-
ing. Accordingly, Appellant submits that the most enlightened

-20—

position for the Supreme Court to take on this issue, which is
a case of first impression for the Fifth Circuit, is to adopt the
holding in Ming.

In the instant case the Fifth Circuit has established as law that
a trial judge may suspend an attorney following a guilty verdict
without a hearing as long as no hearing was requested by counsel
for the accused. The opinion in this case leaves open, the ques-
tion of whether or not the accused would have been entitled to
a hearing on his suspension if one had been requested. This opi-
nion further establishes as law that the accused defending an in-
dictment must also defend a suspension simultaneously although
the accused is never informed that his defense at the trial is also
to be his defense for suspension consideration.

This opinion places a dual burden on the accused attorney dur-
ing the trial on defending his license and the indictment. The Writ
of Certiorari should be granted that this court might make clear
its position on due process hearings when not requested by oversite
of counsel. This particular question is of grave public importance
and substantial and should be considered by this Court. For this
reason, leave to file a Writ of Certiorari should be granted.

The instant case is a case of first impressions of the Fifth Cir-
cuit Court of Appeals as to suspension of an attorney without
a due process hearing. The Fifth Circuit has ruled contrary to
other federal circuits. The U.S. Supreme Court should ratify or
correct the ruling of the Fifth Circuit in this case of first impres-
sion, and establish timely procedures and criteria for suspending
attorneys pending appeals and same for the disbarment of at-
torneys, and define with specificity the distinctions between
disbarment and suspension.

8.
Question No. 8 is presented for the following reasons:

The Appellant being the attorney for the non-profit corpora-
tion, was under obligation to make available its records for civil
audits. The original auditor, admitted that he obtained records
from the appellant under the guise of conducting a civil audit
and later turned those records over to a U.S.D.A. Investigator.
The investigator admitted that at no time did he inform the Ap-

i,

pellant that he was the subject of a criminal investigation or that
the records which he obtained would be used against him as
evidence in a subsequent grand jury proceeding and trial. In fact,
the cirminal investigator admitted that even after the grand jury
was convened and the case was presented to the grand jury, he
returned to the Appellant’s office and seized additional records
and turned them over to the United States Attorney. He further
testified that he did not inform the Appellant that he was a
criminal suspect or that he was conducting a criminal investiga-
tion “because he is an attorney, and if he had done something
wrong he would have known that it was a criminal investigation”.
The investigator testified further that “it is the policy of U.S.D.A.
to not inform suspects of criminal investigations because in so
informing them it tends to cause [ora with the govern-
ment by the suspect.”

The Appellant cites the case as United States ys. Tweel, 550
F. 2d 297 (CAS, 1977), which reveals thai the defendant was tried
on two counts of tax evasion and evidence used against him was
obtained by a special agent under false pretense. The agents in
both cases used deceit, trickery, and misrepresentations to gain
access, and, thus violated the defendant’s constitutional right
against unlawful search and seizures, which is in direct violation
with the Fourth Amendment of the Constitution.

This case at bar is very much alike, factually to the Tweel case.
The unlawful obtainment of records in the Tweel case was con-
demned by the Fifth Circuit Court of Appeals and reversed. The
Appellant’s case was not condemned nor reversed, but denied
by the same court for the same set of circumstances.

If this case is allowed to remain as law, this Court’s position
as to the rights of accused or suspected persons, in a long line
of cases will be revised and possibly nullified. If this case is allow-
ed to stand it will establish classes of individuals that should not
be informed of their constitutional rights and supposedly a class
that should be informed. This case further will serve to ratify
the United States Department of Agriculture policy of not abiding
by the Constitution of the United States. These questions are
substantial enough as to judicial impact alone for this Court to
grant permission to file a Writ of Certiorari, that this court might
affirm or deny the precedent established in this case.

iin

9.
Question No. 9 is present-d for the following reasons:

In the instant case, a U.S. Magistrate ordered the Government
to obey its discovery order i» the extent of Brady vs. Maryland
373 U.S. 83 (1963). Appellant requested whether any of the
government’s intended witnesses had criminal records. The pro-
secutor reported to Appellant that there were none with criminal
records. During the Trial, it was revealed that one witness was
a convicted felon. A Motion for a Mistrial was denied. The Pro-
secutor explained to the court that he asked of each witness if
he or she had a criminal record, and each said no. The prosecutor
announced to the court that in so asking, and in receiving an
answer, and delivering that answer to the Appellant, that he com-
plied with the court’s discovery order. The court agreed. The Ap-
pellant maintained then and maintains now that he was denied
his constitutional rights of a fair trial by not having had the pro-
secutor comply more exhaustivelly with the Discovery Order. This
case establishes a new standard for complying with Discovery
Order as to Criminal cases. The new standard conflicts and
nullifies and contradicts established standards and precedent
cases. Unless this new standard is to be the standard of the future,
this court should grant this Writ of Certiorari and stamp it’s ap-
proval or disapprova!.

CONCLUSION

This Appellant is a black man. The Federal district involved
is the Southern District of the State of Mississippi. Both facts
may or may not be relevant in the instant case, but considering
the history of the State of Mississippi as to its Black Citizens,
both facts should at least be known by this court. In the instant
case, more new and different precedents in more areas of law
are being established than possibly by any other case in the 208
year history of this, our nation. A)! the precedents appear to the
Appellant, to be not in the best interest of the citizens of this
nation, or particularly the Federal Court System. All the
precedents change existing law to the determent of the Appellant.
This case if allowed to stand could be cited in nearly all areas
of law, and in so doing would change the legal history of that

=~ =

area of law. For this case to enjoy such a position, this court
must make the final statement as to whether this case is to dic-
tate our future. This court has jurisdiction, and the issues involved
are so substantial that this court should grant permission to file
the Writ of Certiorari.

aS

— APPENDIX A —

IN THE
UNITED STATES DISTRICT COURT OF APPEALS
for the
FIFTH CIRCUIT

No. 83-4426

UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MELVIN R. JENNINGS
Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of Mississippi

(January 24, 1984)

ok tw

Before GEE and GARWOOD, Circuit Judges, and EASsT*,
District Judge.

GARWOOD, Circuit Judge:

This is an appeal from a judgment of cciuviction under 18
U.S.C. § 287' for making false claims to an agency of the United
States government. The claims involved were those on behalf of
an organization known as South People, Inc. (SP1) presented to
the United States Department of Agriculture (USDA), through
the Mississippi State Department of Education (SDOE), for reim-
bursement for meals served to children under the Child Care Food
Program, see 42 U.S.C. § 1776. Appellant Melvin R. Jennings
was charged in a twelve-count indictment with making, presen-
ting, and causing to be made and presented these allegedly false
claims for each of the twelve months beginning in October, 1979
and continuing through September 1980. At trial, the jury found
Jennings guilty on four of the twelve counts and acquitted him
on the other eight.?

On appeal, Jennings raises a number of evidentiary and pro-
cedureal issues. Because we find no prejudicial error in the con-
duct of the trial below, Jennings’ conviction is affirmed. Jenn-
ings also argues that the trial court erred in summarily suspen-
ding him from practicing law in the federal courts of the Southern
District of Mississippi. We decline to disturb the order of
suspension.

*District Judge of the District of Oregon, sitting by designation.
"Section 287 provides:

“Whoever makes or presents to any person or officer in the civil,
military, or naval service ot the United States. or to any department or
agency thereof, any claim upon or against the United States, or any
department or agency thereof, knowing such claim to be false, fictitious,
or fradulent, shail be fined not more than $10,000 or imprisoned not
more than five years, or both.”

*The jury found Jennings guilty of counts two, four, eight, and twelve. These
counts involved the months of November 1979, January 1980, May 1980, and
September 1980, respectively.

=

Jennings, a licensed attorney in the State of Mississippi, serv-
ed as general counsel for SPI, a nonprofit corporation in whose
formation Jennings played the principal part. In August, 1979,
SPI entered into an agreement with SDOE whereby SDOE agreed
to reimburse SP! for certain meal expenses incurred by the day
care centers under SPI sponsorship’. Under the sponsorship
arrangement, each of the centers sponsored provided SPI with
the information necessary to submit the monthly claim for reim-
bursement to SDOE. This information was brought to Jennings’
law office by the various centers. Jennings’ office personnel would
then total the figures from the individual centers into a blanket
claim for reimbursement which was submitted by SPI to SDOE.
SDOE would process the claim and forward a monthly check
payable to SPI which Jennings would deposit in his escrow ac-
count‘. SPI charged each of the day care centers ten percent of
the reimbursement funds for administrative costs. When the check

*During the period from October 1979 through September 1980, SPI spon-
sored a total of eight child care centers. In order to participate in the Child
Care Food Program, each of the centers had to be licensed by the Mississippi
State Board of Health (MSBH), and the MSBH determine how many children
could be enrolled by each center. The number established by the MSBH also
operated as a ceiling for the number of children for whom reimbursement could
be sought under the Child Care Food Program. The centers sponsored by SPI
and their respective maximum enrollment numbers assigned by MSBH were:
Anderson Day Care Center (17), Bryant’s Nursery (15), Clairmont Preschool
Lerning Center (27), Jones Day Care Center (15), Millers Day Care Center (24),
Tottsville Child Care Center (64), Keyboard Kiddie Care (15), and Northside
Drive Childhood Center (34).

‘Pursuant to the Child Care Food Program, the SDOE served as a conduit
for funds made available by the federal government to Child Care Food Pro-
gram sponsors. Thus, while the claims for reimbursement were submitted by
SPI to SDOE, they were actually claims made upon the United States and
therefore subject to the provisions of 18 U.S.C. § 287. This fact wac made known
to sponsors by a notice at the bottom of the claim for reimbursement form
which stated, “I understand that the information on this Claim for Reimburse-
ment and Claim for Reimbursement Worksheet is being given in connection
with the receipt of Federal funds and that deliberate misrepresentation may
subject me to prosecution under applicable State and Federal Criminal Statutes.”
This aspect uf the matter is not in dispute on appeal, nor was it at trial.

it hie

from SDOE arrived, Jennings or his staff would determine what
each of the centers was entitled to receive for that particular
month, deduct ten percent, and forward the remainder to the
centers.

The false claim alleged in each count of the indictment per-
tained to that part of the claim for reimbursement involving the
Tottsville Child Care Center which was owned and operated by
Jennings. The principal witnesses against Jennings at trial were
three women who served as his legal secretaries during the period
of time from October, 1979 through September, 1980. The first
of these was Evelyn Henry, who began working for Jennings in
September, 1975. She testified that at some point prior to Oc-
tober, 1979, Jennings told her that she had been elected presi-
dent of SPI, and she subsequently signed the October, 1979 SPI
claim for reimbursement from SDOE. Henry stopped working
for Jennings, however, in the latter part of the same month, but
at that time Jer.nings requested and received from her a power
of attorney authorizing him or his representative to sign her name
to SPI documents.

According to the government’s evidence, Jennings instructed
the secretaries who followed Henry to sign Henry’s name to the
monthly claims for reimbursement submitted to SDOE. He ex-
plained to them how to compile the information from the in-
dividual day care centers to complete the master claim. One of
these secrtaries, Jackie Hart, testified that while the figures for
the other centers needed to complete the master claim came from
those centers, the figures for Tottsville came directly from Jen-
nings. According to Hart, regarding the preparation of the work
sheets reflecting the meal count from Tottsville, either Jennings
would prepare the work sheets himself, taking the figures “from
the top of his head,” or he would show Hart how to complete
the work sheets. Jennings told her that the meal count had to
be within a ceriain range, that she should never be consistent in
completing the work sheets, and that she should not use the same
number of meals too often. Jennings also told Hart to represent
herself as Henry if asked who she was when submitting a claim
to SDOE.

The government's evidence showed that Jennings had instructed

a

Helen Knight, the director of the Tottsville center from 1978 to
1981, to inflate the number of meals purportedly served at the
center when she filled out the work sheets from which Tottsville’s
claim for reimbursement was completed. Jennings explained to
her that “he didn’t have any money coming in and the only way
we were going to be working is we had to inflate the numbers
so we'd have some money.” The director trestified that during
the school year from September, 1979 through May, 1980 the
average attendance was approximately thirty-five students; dur-
ing the summer the average dropped to twenty-five. The claims
for reimbursement for the Tottsville center for this period,
however, consistently represented that more students had been
in attendance. The government’s evidence further demonstrated
that the disparity between the number of children actually at-
tending Tottsville and the number represented by the claims for
reimbursement was not unknown to Jennings since he had stop-
ped by the center almost every day and had seen the number of
children in attendance.

The government also introduced the testimony of the SDOE
area supervisor for the Child Care Food Program who had on
two occasions visited the Tottsville center and observed the
number of children eating a particular meal. The supervisor’s
report concerning a visit made on November 16, 1979 indicated
that forty children had eaten breakfast at the center. The
November, 1979 work sheet for Tottsville showed that reimburse-
ment for sixty-four breakfasts had been sought for the same date.
The supervisor’s report on an April 4, 1980 visit indicated that
thirty-two children had been served an afternoon snack. The April
work sheet sought reimbursement for sixty-four children on that
date.

From October, 1980 through February, 1981, Pace and
Shelton, an independent firm, conducted an audit for SPI’s ac-
tivities regarding the Child Care Food Program. Jennings com-
plained to SDOE about the results obtained by Pace and Shelton,
and subsequently the matter was transferred to USDA for resolu-
tion. Auditor McDonald of USDA was assigned to conduct
another audit of SPI. After reviewing SPI’s records and discover-
ing possible program violations, McDonald referred the matter
to the investigations section of USDA’s Office of Inspector

—A 6—

General. In the course of McDonald’s audit, he had copied some
of the SPI documents and eventually turned these copies over
to the Investigations division, although none of the copies were
‘ntroduced at trial. Investigator Brewer, who testified for the
government at trial,® proceeded to visit Jennings’ office where
he identified himself as being a party of an investigation separate
from auditor McDonald and the Pace and Shelton audit. He did
not, however, disclose to Jennings that he was conducting a
criminal investigation. Jennings subsequently provided Brewer
with the records pertaining to the period from October, 1979
through September, 1980. As a result of Brewer’s investigation,
the instant indictment was ultimately returned.

Jennings’ first claim of error concerns the government’s use
of certain summary charts at trial. Twelve of these charts con-
sisted of summaries of the meals claimed to have been served
by the day care centers under SPI sponsorship for each of the
months beginning with October, 1979 through September, 1980.
Government exhibit 49A (against which, together with govern-
ment exhibit 51A, Jennings’ major complaints are directed)
presented a comparison of what the government asserted was the
actual number of meals served at the Tottsville center during
twenty-two days® with the meals claimed for reimbursement for
those same days. Government exhibit 51A consisted of a presen-
tation, based on an extrapolat'on of the average number of meals
served at Tottsville during the twenty-two days summarized in
exhibit 49A, of the amount of reimbursement Tottsville was ac-
tually entitled to for the twelve months in question.

Federal Rule of Evidence 1006 provides that “[t}he contents
of voluminous writings, recordings, or photographs which can-
not conveniently be examined in court may be presented in the
form of a chart, summary or calculation.” Recognizing the
possibility for misuse of summary charts, this Court has previous-

‘Brewer testified at the beginning of the government's case and again at the
end as a summary witness.

*Twenty and two-thirds days in September 1980 and one meal cach on
November 19, 1979 and on April 4, 1980.

oh Fa

ly cautioned that a trial judge must carefuly handle their prepara-
tion and use. Myers v. United States, 356 F. 2d 469, 470 (Sth
Cir.), cert. denied, 384 U.S. 952 (1966). We here reiterate that
caution. Jennings argues initially that the documents involved
in this case were not so voluminous as to allow the use of sum-
mary charts. Nevertheless, insofar as the documents underlying
these summary charts include almost two hundred pages of
material and substantial amounts of mathematical calculations,
we cannot find that the trial court abused its discretion in allow-
ing their use for convenience of the jury. These documents in-
cluded claims for reimbursement, work sheets used to compile
the figures used in the claims, and itemized menus. “The most
commonly recognized application of this principle is that by which
the state of pecuniary accounts or other business transactions is
allowed to be shown by a witness’ schedule or summary.” 4
Wigmore, Evidence § 1230 at 537 (Chadbourn rev. 1972) (foot-
note omitted) (emphasis in orignal).

Neither do we find that the charts were not supported by
evidence. The government’s summary witness explained in some
detail how he had derived figures contained in the summary charts
from the underlying documents. Although certain of the con-
clusions in the summary charts are undoubtedly the product of
assumptions made by the government, these assumptions are not
per se impermissible. This Court has recently noted that such
assumptions are allowed “so long as supporting evidence has been
presented previously to the jury . . . and where the court has
‘made it clear that the ultimate decision should be made by the
jury as to what weight should be given to the evidence.’” United
States v. Means, 695 F. 2d 811, 817 (Sth Cir. 1983) (citing United
States v. Diez, 515 F. 2d 893, 905 (Sth Cir. 1975), cert. denied,
423 U.S. 1052 (1976), and quoting United States v. Andrew, 606
F. 2d 549, 550 (Sth Cir. 1979). The central assumption attacked
by Jennings in this case is the government’s use of the average
number of actual meals served from government exhibit 49A (bas-
ed on an analysis of twenty-two days) to derive, by extrapola-
tion, the total reimbursement that Tottsville was entitled to for
the months of October, 1979 through September, 1980. Govern-
ment exhibit 51A, therefore, essentially assumes that the pattern
of average actual numbers served per meal demonstrated for the
twenty-two days analyzed in exhibit 49A was not exceeded on

—-A8—

a monthly basis throughout the balance of the year. This assump-
tion was supported by the testimony of day care center workers
that the average attendance during the months involved was con-
sistently less than that reflected by the claims for reimbursement,
and by the evidence that actual attendance was higher in the
September to May period than in June, July, and August. The
assumption was also fully exposed as such during cross-
examination of the government's summary witness. Furthermore,
the trial court repeatedly admonished the jury that the summary
charts were the government’s view of the evidence and that it was
the jury's responsibility to determine whether the matters con-
tained in the charts were, in fact, true and correct. We note also
that the witness preparing the chart “was subject to full cross-
examination by defendant[’s} attorneys” concerning the matters
reflected by exhibit SIA and the assumptions on which it was
based. Means at 817. The trial court has discretion in these mat-
ters, Means at 817, and although it is arguable that the nexus
between exhibit 51A's conclusions and the supporting evidence
is close to being as attenuated as should be allowed for such form
of presentation and that hence the trial court's ruling approach-
ed the limits of its discretion, we cannot say that those limits were
exceeded or the discretion abused.

Even if it were determined that the trial court abused its discre-
tion in allowing the use of the government's summary charts, we
cannot see that Jennings was prejudiced thereby. The full cross-
examination and the trial court's admonitions to the jury served
to minimize the risk of prejudice. Moreover, that the jury returned
a verdict of guilty on only four counts demonstrates that it did
not blanketly or indiscriminately accept the results of the govern-
ment's summary charts. Jennings’ main complaint of the charts
is their assumption that all the months were similar in number
of meals actually served. The jury rejected that assumption. It
found Jennings guilty on only four of the twelve counts, and the
convictions on those counts were amply supported by evidence
independent of the conclusions reached by the summary charts.’

"We consider some of the evidence supporting the jury's verdict of guilty
on the four counts in our discussion of Jennings’ objection to the use of the
modified Allen Charge in the trial below. Other evidence is reflected in part
1 of this opinion. The sufficiency of the evidence is not challenged as to any
of the counts of which Jennings was convicted.

144

Jennings also argues that the government’s summary witness
was not qualified to testify concerning the summary charts. He

contends that the preparation of summary charts such as those

used in this case and the presentation of those charts in court
must be done by an expert witness qualified to give opinions in
the area in which he is called upon to testify, or by a witness who
has specialized knowledge about the subject matter about which
he testifies. He cites United States v. Seelig, 622 F. 2d 207, 215
(6th Cir.), cert. denied, 449 U.S. 869 (1980), for this proposi-
tion. In Seelig, however, the court found that a summary chart
could not be used because the underlying records on which the
chart was based were not introduced as exhibits nor were they
made available to the opponents as required by Fed. R. Evid.
1006. The court then considered whether the charts could be in-
troduced under the exception for the basis of opinion testimony
by experts, pursuant to Fed. R. Evid. 703. The court concluded
that the summary witness was not an expert and therefore Rule
703 did not apply.

The posiion actually adopted by the Sixth Circuit and the one
that this Court foliows is that when a chart does not contain com-
plicated calculations requiring the need of an expert for accuracy,
no special expertise is required in presenting the chart. See United
States v. Scales, 594 F. 2d 558, 563 (6th Cir.), cert. denied, 441
U.S. 946 (1979). The calculations in this case were of such a
nature, and the govenment’s witness, who, though not an accoun-
tant, had received training in accounting procedures and in claim
investigations of this kind, was qualified to testify concerning
the summary charts.®

Jennings complains of certain comments made by the pro-
secutor during his closing argument, alledging that these com-

"The trial court found that the government’s summary witness had specializ-
ed knowledge insofar as he was “an investigator in this field for the United
States Department of Agriculture who is familiar with the forms, their prepara-
tion, and the regulations regarding them.” The witness testified that he had
received training in accounting principles, tracing of funds and document ex-
amination through the Federal Law Enforcement Training Center located in
Glencoe, Georgia.

—A 10-—

ments were an attack upon counsel for the defense and therefore
prejudicial error.* The prosecutor’s remarks may reasonably be
construed as an attempt to explain why certain of the govern-
ment’s witnesses were uncooperative with Jennings’ attorneys prior
to trial. Counsel for the defense had repeatedly claimed in their -
cross-examination of these witnesses that they had denied Jenn-
ings his constitutional right by refusing to talk with his attorneys
prior to trial. The prosecutor also alluded to defense counsel’s
suggestions to various witnesses during cross-examination that
they had engaged in prostitution, embezzlement, and “intimate
relationships” with a government investigator and a third party.
In light of these attacks upon the credibility of the government
witnesses, the prosecutor was “not obliged to sit quietly while
character assaults [were] made on his witnesses; he [was] entitl-
ed to argue fairly their credibility.” United States v. Bright, 630
F. 2d 804, 824 (Sth Cir. 1980). Moreover, even if the prosecutor’s
remarks are construed as an attack upon defendant’s counsel,
we do not find that the error was sufficiently prejudicial to war-
rant reversal.

IV.

In preparation for the trial below, Jennings’ counsel moved
pursuant to Fed. R. Crim. P. 16 for discovery of the criminal
records, if any, of the government’s prospective witnesses. The
motion was granted. During the course of cross-examination of
one of the government’s witnesses at trial, Jackie Hart, that
witness testified that she had been convicted of attempting to cash
a check that she had taken from Jennings’ office. The govern-

*The relevant remarks of the prosecutor are as follows:

“Let me talk about one thing before we leave, before my time runs out.
You think about those ladies from there. Now they want to talk about
those ladies not talking to them prior to the time they came to the cour-
troom. Did you — you did, you observed the way they treated those ladies
here in this courtroom. I mean the gall that they had to ask them the
questions they did and treat them the way they did right here in front
of y’all, can you imagine — can you imagine what these gentlemen would
have done if those ladies had dared talk to them out on the street?”

—-A ll-

ment had not produced the criminal record of this witness,'® and
Jennings therefore moved that the witness’ testimony be stricken
and the jury instructed to disregard the testimony of the witness
for failure to comply with the court’s order. The trial court denied
the motion.

We note that “[rJelief for violations of discovery rules is in the
discretion of the trial court. To support a claim for reversal of
the exercise of that discretion, the accused must show prejudice
to substantial rights.” United States v. Valdes, 545 F. 2d 957-961
(Sth Cir. 1977); United States v. Saitta, 443 F. 2d 830 (Sth Cir.),
cert. denied, 404 U.S. 938 (1971). There was no showing of pre-
judice in the present case. Counsel for defense admitted that they
were aware of the witness’ arrest for attempting to cash the check;
Jennings was the complaining witness in that case. Moreover,
as the trial court observed, “it was obvious from defense counsel’s
questioning of the witness of it.”"' Even if Jennings had not
known of the conviction, it is apparent that he got all the mileage

The prosecutor stated to the trial court that he had questioned all the
witnesses as to whether they had ever been convicted and that all the witnesses
represented tc him that they had not. The night before Hart testified the pro-
secutor questioned her on the basis of testimony that had come out at trial
to the effect that she had been arrested for trying to cash checks from Jenn-
ings’ office. He stated that Hart told him that she had been arrested and that
“the matter had been disposed of thereafter.” He maintained that he had no
reason to believe that she had been convicted.

1“(Mr. WALLS (Counsel for Defendant)}: Q. Now you testified a few
minutes ago about being arrested. Isn’t it a fact that this occurred when you
left from Mr. Jennings’ office one day for lunch?

“[Mrs. Hart (Witness)]: A. Yes, true.
“[MR. WALLS]: Q. And isn’t it a fact that you had been working with the —

“BY MR. DAVIS [Prosecutor]: Your Honor, I object. He cannot go into
the details upon impeachment.

“BY MR. WALLS: Your Honor, I’m talking about why she left work. She’s
testifying about a man she worked for.

“BY MR. DAVIS: She’s testified about the arrest, your Honor. The Federal
Rules do not provide for going into the details.

“BY MR. WALLS: Your Honor, they opened this area up.
“BY THE COURT: Ill let him proceed with this line of questioning.

—A 12-

out of it that he could have if informed of it earlier. If he were
prejudiced by surprise he should have called it to the trial court’s
attention, and his remedy in that event would normally be to re-
quest a recess. United States v. Bockius, 564 F. 2d 1193, 1196-97
(Sth Cir. 1977). No recess was requested here, obviously because
none was needed. Under these circumstances, the trial court clear-
ly did not abuse its discrcion in refusing to strike the testimony
of the witness.

(Footnote'' Continued.)

“BY MR. WALLS, Continuing: Q. Mrs. Hart, isn’t it a fact that this occur-

red regarding some checks for Jones Day Care Center?
“A. You mean the arrest?
“Q. Yes.
“A. Yes.

“Q. That you had taken as a result of your employment in Mr. Jennings’
office?

“A. Yes.

“Q. That you went to the bank and attempted to cash those checks?
“A. One, yes.

“Q. Acting as if you were some person from Jones Day Care Center?
“A. Yes.

“Q. And that you never returned to Mr. Jennings’ office after that?
“A. Correct.

“BY MR. WALLS, Continuing: Q. Who accompanied you?

“A. To the bank?

“Q. Yes.

“A. A friend of mind.

“Q. Was it a man?

“A. Yes.

“Q. Was it your husband?

ae

V.

Prior to the trial below Jennings filed a “Motion to Quash In-
dictment Based Upon Outrageous Governmental Conduct and
Vindictive and Selective Prosecution of Defendant.” This mo-
tion alledged broadly that blacks had been selectively prosecuted
in the state of Mississippi and that government agents had,
“disguising themselves as auditors, illegally, outrageously, and
discriminatorily invaded his privacy and unlawfuly searched and
seized his property.” The trial court denied this motion without
a hearing but allowed Jennings to file sworn affidavits stating
proffered facts. During the course of the trial Jennings subse-
quently filed an affidavit in support of the motion along with
the deposition of an alleged witness, which exhibit was reviewed
by the trial court.

In order to prevail in a defense of selective prosecution, a defen-
dant must meet two requirements which we have characterized
as a “heavy burden.” United States v. Johnson, 577 F. 2d 1304,
1308 (Sth Cir. 1978) (quoting United States v. Berrios, 501 F.
2d 1207, 1211 (2d Cir. 1974). First, he must make a prima facie
showing that he has been singled out for prosecution although
others similarly situated who have committed the same acts have
not been prosecuted. United States v. Tibbetts, 646 F. 2d 193,
195 (Sth Cir. 1981). Second, having made the first showing, he
must then demonstrate that the government’s selective prosecu-

(Footnote Continued.)

“A. No.

“Q. What was his name?

“A. L. V. Lowe.

“Q. Where were you convicted of that?
“A. Here in Hinds County.

"Q. Here in Hinds County?

“A. Yes.”

—A 14-

tion of him has been constitutionally invidious. Id The showing
of invidiousness is made if a defendant demonstrates that the
government’s selective prosecution is actuated by constitutionally
impermissible motives on its part, such as racial or religious
discrimination. United States v. Lichenstein, 610 F. 2d 1272, 1281
(Sth Cir.), cert. denied, 447 U.S. 907 (1980).

A defendant is not automatically entitled, however, to an
evidentiary hearing to make the required showing. He must first
present facts “sufficient to create a reasonable doubt about the
constitutionality of a prosecution . . .” United States v. Hayes,
589 F. 2d 811, 819 (Sth Cir.), cert. denied, 444 U.S. 847 (1979);
United States v. Ream, 491 F. 2d 1243, 1246 (Sth Cir. 1974). It
is clear in the present case that Jennings did not offer such facts
to the trial court. His motion to quash contained nothing more
than broad allegations concerning the selective prosecution of
Blacks. Moreover, after reviewing the affidavit submitted by Jen-
nings in support of the motion to quash and the statement of
W. C. Battle, also offered in support of the motion, we are unable
to conclude that Jennings has presented facts sufficient to create
a reasonable doubt about the selectivity of the prosecution in this
case. That persons cooperating with the government in this case,
and lower in the organizational structure than Jennings, were not
prosecuted while Jennings was, does not come even close to

12We have previously emphasized that selective prosecution, absent some in-
vidious element, may not be challenged.

“As a substantive matter, the constituional authority to ‘take care that
the laws [are] faithfully executed’ is textually committed to the authority
of the executive branch, U.S. Const. art. II, § 3; United States v. Hamm,
659 F. 2d 624, 628 (Sth Cir. 1981) (en banc), and the authority of the
executive branch to enforce the law in a selective fashion is legally un-
challengeabic absent proof by the defendant that the government has ex-
ercised its discretion upon an invidious basis such as race. United States
v. Batchelder, 442 U.S. 114, 123-25 & n. 9, 99 S.Ct. 2198, 2204 & n.
9, 6 L. Ed. 2d 755 (1979); Bordenkircher v. Hayes. 434 U.S. 357, 364,
98 S.Ct. 663, 668-69, 54 L.Ed. 2d 604 (1978); Oyler v. Boles, 368 U.S.
448, 456, 82 S. Ct. 501, 506, 7 L.Ed. 2d 446 (1962).” United States v.
Chagra, 669 F. 2d 241, 247 (Sth Cir.), cert. denied, 103 S. Ct. 102 (1982).

See also United States v. Johnson, 577 F. 2d 1304, 1307-09 (Sth Cir. 1978);
United States v. Ream, 491, F. 2d 1243, 1246 & n. 2 (Sth Cir. 1974).

—A 15—

meeting the “similarly situated” branch of the selective prosecu-
tion defense. Even assuming that Jennings had made the requisite
showing that his prosecution was slective, he has offered nothing
but bare general allegations that the selectivity was motivated by
racial considerations.

Nor do we find that the trial court should have conducted a
hearing on the basis of Jennings’ allegations that the government
had engaged in outrageous and vindictive conduct in prosecuting
him. We can discern no reason for characterizing the government’s
conduct as vindictive. As to Jennings’ charge that the govern-
ment’s conduct was outrageous, he appears to focus on the cir-
cumstances under which the government obtained certain
documents from him relating to SPI’s involvement in the Child
Care Food Program. Jennings alleged, both in his motion to
quash the indictment and in his motion to supress certain‘llegally
obtained evidence, that government agents had acquired
documents from him under the guise of an audit or civil investiga-
tion when Jennings was acutally the subject of a criminal investig-
tion. Insofar as the trial judge did hear evidence on the motion
to suppress concerning this allegation, Jennings was not prejudic-
ed when the trial court declined to conduct another hearing con-
cerning the government’s allegedly outrageous conduct that would
have simply repeated the same evidence heard on the the motion
to suppress. We therefore conclude that the trial court commit-
ted no error in refusing to grant Jennings a hearing on the mo-
tion to quash.

Vi.

Jennings further alleges as error the trial court’s refusal to give
the jury an instruction on the failure of the government to call
certain witnesses. Defendant’s objections center on one poten-
tial witness in particular, namely, the USDA auditor who was
assigned to audit SPI after Jennings had expressed disapproval
of an audit performed by an independent audit firm.

A missing witness instruction is not justified if it appears that
the testimony of the witness who is not called would likely have
been merely cumulative or corroborative. Georgia Southern and
Florida Railway Co. v. Perry, 326 F. 2d 921, 924 (Sth Cir. 1964).
See also United States v. Ramzy, 446 F. 2d 1184, 1187 (Sth Cir.),

—A 16—

cert. denied, 404 U.S. 992 (1971); United States v. Tant, 412 F.
2d 840 (Sth Cir.), cert. denied, 396 U.S. 876 (1969). The USDA
auditor testified at a pretrial hearing, and it is clear from a review
of the transcript of that hearing that his testimony was cumulative
of the testimony given at trial by the government’s summary
witness. There was no showing to the contrary.

From the circumstances of this case it is clear that the govern-
ment could have conceivably called either the USDA auditor or
the investigative agent Brewer to testify concerning his findings,
McDonald, however, upon discovering possible violations in the
course of his audit, referred the matter to the USDA’s investigative
division, whereupon agent Brewer proceeded to conduct his own
investigation into the records of SPI. Under the circumstances
the government’s decision to call Brewer and not McDonald was
a decision that spared the jury from needless cumulative
testimony. To require the government to call McDonald in order
to ward off a possible negative inference or to present testimony
to explain why he was not called would have simply invited a
waste of time.'® Jennings, was therefore, not entitled to the re-
quested instruction.

Vil.

Jennings argues that the trial court erred in giving the modified
Atlen Charge in this case. After the jury had deliberated for ap-
proximately one day, they returned a note to the trial judge in-
dicating that they could not reach agreement on any of the twelve
counts of the indictment. The trial judge then gave the jury the
modified Allen Charge. The jury retired for approximately two

This is among the reasons why one commentator has noted that “[djespite
the plenitude of cases supporting the inference, caution in allowing it is sug-
gested with increasing frequency.” McCormick, Evidence *272 at 657 (1972).

“This counsel of caution is reinforced by several factors. Possible con-
jecture or ambiguity of inference is often present. The possibility that
the inference may be drawn invites waste of time in calling unnecessary
witnesses or in presenting evidence to explain why they were not called.
Anticipating that the inference may be invoked entails substantial
possibilities of surprise. And finally, the availability of modern discovery
procedures serves to diminish both the justification and the need for the
inference.” Jd. (footnotes omitted).

-Al7—-

more hours of deliberations, after which they returned a verdict
of guilty on four of the twelve counts. The thrust of Jennings’
argument is that the Allen Charge is particularly inappropriate
in cases involving a multicount indictment, since the jury will
almost certainly arrive at a compromise verdict. He specifically
alleges that there was “no rhyme nor reason” for the jury’s ver-
dict in this case.

This Court has repeatedly upheld the use of the modified Allen
Charge. See, e.g., United States v. Vincent, 648 F. 2d 1046, 1049
(Sth Cir. 1981); United States v. Zicree, 605 F. 2d 1381, 1390
(Sth Cir. 1979), cert. denied, 445 U.S. 966 (1980). Moreover, the
charge has been upheld in cases involving multicount indictments.
See, e.q., United States v. Blevinal, 607 F. 2d 1124 (Sth Cir. 1979),
cert. denied, 445 U.S. 928 (1980). We, therefore, find no misuse
of the charge under the facts of this case.

Nor do we find that the jury’s verdict was without rhyme or
reason. The jury found Jennings guilty of counts two, four, eight,
and twelve. Count two (November 1979) involved one of the
months in which an SDOE official had made an on-site inspec-
tion of the Tottsville center that revealed a number of children
in attendance that was substantially lower than the amount claim-
ed in the claim for reimbursement for that center. Counts four
(January 1980) and twelve (September 1980) were supported by
work -heets filled out in Jennings’ own handwriting. The actual
meal count for September 1980 showed a much smaller number
of meals than those claimed for. Finally, count eight (May 1980)
was supported by the admission of Jennings’ expert witness that
Jennings had made a small overclaim for the month in question.
We do not pass upon whether this evidence, standing alone, would
support a conviction on each of the four counts, particularly count
eight. But the referenced evidence by no means stands alone and
we do find that it was sufficient to distinguish the jury’s verdict
of guilty on those counts from its acquittal on the other eight
counts.

VIII.

At trial below Jennings filed a motion to suppress the various
records that had been obtained by the auditor, McDonald, and
by the government investigator, Brewer. The motion was denied

—A 18—

by the trial court and Jennings now contests that ruling. He
alledges that these government agents seized the records under
the guise of a civil audit when in actuality Jennings was under
criminal investigation.

It is not necessary for this Court to determine whether, as Jen-
nings suggests, government agents failed to inform him that he
was under criminal investigation before obtaining records from
him. The only records obtained were SPI’s records relating to
SPI’s involvement in the Child Care Food Program, and the
records so obtained were not introduced in evidence at trial.
Paragraph 13 of the agreement entered into by SPI and SDOE
(Government exhibit 2) required that SPI, “[uJpon request, make
all accounts and records pertaining to the Program available, to
State Agency and United States Department of Agriculture
representatives, for audit or review at any reasonable time and
place.” The records in question were likewise those which the con-
tract required SPI to keep and maintain. By entering into this
agreement, SPI voluntarily waived any claims to privacy that it
might have had with respect to documents relating to this con-
tract. Zap v. United States, 328 U.S. 624, 628 (1946). In United
States v. Griffin, 555 F. 2d 1323 (Sth Cir. 1977), this Court con-
sidered a set of circumstances essentially identical to those
presented by this case. There, the owner of a drugstore, apparently
a sole proprietorship, had entered into an agreement with the
Texas State Department of Welfare whereby he would be reim-
bursed by the state for providing pharmaceutical services to
welfare recipients. He entered into a contract with the state agency
that required him to permit state officials to examine the prescrip-
tion records of welfare recipients. On the occasion in question,
state agents arrived at the drugstore and requested permission
to examine the records. The agents were asked to wait until the
owner of the drugstore returned to the store, but after waiting
a short while, they began to examine the records and also seized
the store’s copies of those prescriptions paid for by the state agen-
cy. The Court determined that the owner had “knowingly and
voluntarily agreed by contract to maintain records of the prescrip-
tions which he billed to the state and to make these records
available for inspection at any time.” /d. at 1325.

—A 19—

Defendant’s reliance upon United States v. Tweel, 550 F. 2d
297 (Sth Cir. 1977), is misplaced. In Tweel, this Court held that
the failure of an IRS agent to apprise a defendant of the criminal
nature of his investigation before obtaining permission from the
defendant to copy certain of the defendant’s own tax records con-
stituted an unreasonable search and seizure. Since the consent
was obtained by deception, there was a violation of the defen-
dant’s Fourth Amendment rights. In the present case, however,
consent to examine SPI’s records was not obtained by deception
— but rather by contractual agreement. We also observe that the
records in question were SPI’s, not Jennings’.

IX.

Jennings’ final claim of error concerns the trial court’s suspen-
sion of him from the practice of law in the federal courts of the
Southern District of Mississippi. '* He argues that he was denied
due process of law when the order of suspension was entered

“As noted, SPI was a Mississippi nonprofit corporation. Its referenced agree-
ment with SDOE recites that SPI warrants and represents that it is a nonprofit
agency which is either “exempt” (or in the process of becoming so) from federal
“income tax under Section 501(c\(3) of the Internal Revenue Code of 1954”
or is “curently operating a federally funded program requiring nonprofit tax
exempt status” and that it accepts “final financial and administrative respon-
sibility” for its part of the contract.

The trial judge entered the order of suspension on the basis of Rule | of
the Rules of the United States District Court for the Southern District of
Mississippi. The rule states in pertinent part:

“ADMISSION OF ATTORNEYS”

“A. General Admission. Any attorney properly shown to the satisfac-
tion of the Court then to be in good standing as a member of the Bar
of the State of Mississippi and admitted to practice before the Mississip-
pi Supreme Court shall be admitted to practice generally as a member
of the Bar of this Court upon taking the oath, subscribing the Roll of
Attorneys of this Court, and paying the fee to the Clerk therefore; and
such attorney shall enjoy all the rights and privileges as an attorney of
this Court during good behavior, until otherwise ordered by the Court.”

-A 20—

before his conviction became final on appeal, '* and, moreover,
that he was also denied due process by the failure of the trial
court to conduct a hearing prior to entering the order of
suspension.

Jennings relies on In re Ming, 469 F. 2d 1352 (7th Cir. 1972),
for the proposition that if a conviction itself is to be used to form
the basis for an attorney’s suspension, then, “that conviction must
have reached finality, at least to the extent of exhaustion of direct
appeals.” /d. at 1354. Ming involved conviction of the misde-
meanor offense of willful failure to file income tax returns. The
Third Circuit apparently has taken a different position, however.
In United States v. Friedland, 502 F. Supp. 611 (D. N.J. 1980),
aff'd without opinion, 672 F. 2d 905 (3d Cir. 1981), the district
court held that “a court constitutionally may suspend a member
of its bar summarily on the basis of a felony conviction even
though that conviction has not been finalized by completion of
the appellate process.” /d. at 616. The Fridland opinion was ap-
prove by “all the judges sitting in this district.” /d. at 620. The
conviction there considered was for felonies involving moral tur-
pitude. /d. at 619-20.

The question before us is a matter of first impression for this
Court. The offenses here are plainly felonies involving moral tur-
pitude. See Jordan v. DeGeorge, 341 U.S. 223, 227 (1951).

Having considered the reasoning of the opinion in Ming, supra,
we are not convinced that due process requires that conviction
of a felony involving moral turpitude be final before it can be
used as a basis for suspending an individual from the practice
of law before a federal court. The thrust of the argument in Ming
was that since the Seventh Circuit had construed 8 U.S.C. § 1251
(a)(11), concerning the statutory basis for deportation of aliens,
so that “conviction” was held to mean “final conviction,” see Will

“The government argues that Jennings’ objections are moot, since if we af-
firm his conviction there is no appeal pending and if we reverse his conviction
he will no longer be suspended. Nevertheless, Jennings has the option of filing
a petition for a writ of certiorari in the United States Supreme Court. We,
therefore, proceed on the assumption that our affirmance of his conviction
does not moot the present point. See In re Ming, 469 F. 2d 1352, 1354 (7th
Cir. 1972).

—-A 21—

v. Immigration and Naturalization Service, 447 F. 2d 529, 531,
533 (7th Cir. 1971), conviction should be construed similarly in
the context of disbarment proceedings directed against a lawyer.
The court observed that, “[i]n looking at the panoply of individual
rights, we do not find a basis for awarding a citizen lawyer a lesser
position than the alien.” 469 F.2d at 1354.

We note to begin with our disagreement with Ming's apparent
assumption that temporary suspension from the practice of law
pending an appeal is as severe a sanction as deportation.

More importantly, in our view Ming does not take adequate
note of the public interest in avoiding the appearance of im-
propriety in the legal profession. This interest distinguishes the
lawyer from the alien. As the Seventh Circuit itself has stated,
“the real question at issue in a disbarment proceeding is the public
interest and an attorney’s right to continue to practice a profes-
sion imbued with public trust.” In re Echeles, 430 F. 2d 347, 350
(7th Cir. 1970). Once viewed from the standpoint of the need
to uphold public confidence in the bar, the fact that a convic-
tion has not yet been sustained on appeal loses much of its
significance.

“It is not the fact that the attorney may have committed the
underlying wrong, but the fact that the attorney is a ‘con-
victed felon’ or stands convicted of an offense involving
moral turpitude that tends to impair public confidence in
the judicial system and the integrity of the bar as a whole.”
In re Stoner, 507 F. Supp. 490, 492 (N.D. Ga. 1981).

The American Bar Association Special Committee on the
Evaluation of Disciplinary Enforcement has, moreover, pointed
out that allowing a lawyer to practice pending appeal of a criminal
conviction not only affects the public’s appraisal of the legal pro-
fession, but also the interests of individual clients.

“No single facet of disciplinary enforcement is more to blame
for any lack of public confidence in the integrity of the bar than
the policy that permits a convicted attorney to continue to prac-
tice (penai.g appeal) while apparently enjoying immunity from
discipline .. .

-A 22—

“The consequences of permitting the convicted attorney to con-
tinue to practice are not limited to the adverse effect upon the
reputation of the profession. The clients of the convicted attorney
suffer also. One who is unaware of the conviction might retain
the attorney and unwittingly compromise his rights. Adversary
counsel aware of the conviction may be reluctant to negotiate
with the attorney, to enter on a setlement with him, to entrust
him with an escrow fund, or to be associated with him of counsel.
These are all circumstances totally unrelated to the merits of the
client’s cause, and they may impair it. Moreover, the conviction
may be affirmed and the attorney sent to prison while the new
client’s claim is pending. The client will then be forced to employ
new counsel, who will have to familiarize himself with the mat-
ter. This means more delay and considerable duplication of ex-
pense to the client.

“There is a further threat to the convicted attorney’s client. The
attorney, aware that the conviction ultimately will result in his
disbarment, and, assuming that he has little to lose, he may engage
in serious misconduct toward his remaining clients for his own
personal gain.

“A policy which thus jeopardizes the rights of innocent clients

cannot be justified.” Report of the Special Committee on Evalua-
tion of Disciplinary Enforcement, 95 A.B.A. Reports, 783, 920-21
(197).
See also the Model Federal rules of Disciplinary Enforcement,
approved September 21, 1978, by the Judicial Conference of the
United States and recomn:ended for adoption on an optional basis
by all federal trial and appellate courts, the relevant portions of
which are set out in the Friedland opinion. 502 F. Supp. 61/1 at
am. 2."

Additionally relevant is the action of the Supreme Court in In re Mitchell,
420 U.S. 1001 (1975), in suspending an attorney from practice there and issu-
ing an order that he show cause why he should not be disbarred. As Friedland
points out, 502 F. Supp. at 616 n. 9, the Supreme Court’s suspension was ap-
parently taken on the basis of New York disciplinary action against the attorney
at a time when appeal of that action was still pending before the New York
Court of Appeals.

—A 23-—

We agree with the statement of the New York Court of Ap-
peals that “[t]o permit a convicted felon to continue to appear
in Our courts and to continue to give advice and counsel would
not ‘advance the ends of justice,’ but instead would invite scorn
and disrespect for our rule of law.” Mitchell v. Association of
Bar of City of New York, 40 N.Y. 2d 153, 156, 386, N.Y.S. 2d
95, 97, 351 N.E. 2d 743, 745 (1976). See also State Bar of Texas
v. Heard, 603 S.W. 2d 829, 834 (Tex. 1980) (“An attorney who
is convicted of . . . [an offense involving moral turpitude] can-
not hold the confidence of the public or the profession as long
as the conviction stands.”). We also observe that attorneys are
officers of the courts before which they practice, and the necessary
mutual confidence between bench and bar is undermined when
the attorney stands convicted of a felony involving moral tur-
pitude. Accordingly, we hold that due process allows the use of
a conviction of a felony involving moral turpitude as a basis for
the suspension of Jennings from practice before the Southern
District of Mississippi before that conviction has been finalized
on appeal.'®

Jennings also complains that he was denied due process of law
when the order of suspension was entered by the trial court
without conducting a hearing. We find this argument without
merit, however, under the particular facts of this case. In the first
place, the judge who entered the order of suspension had also
presided over the trial at which Jennings was convicted. Under
these circumstances it is inconceivable that a hearing would have
resulted in other than an order of suspension. The situation in
this case is thus parallel to that presented in Friedland, where
the court determined that the only question that could have been
addressed by a post-conviction hearing preceding the order of
suspension was whether the crime of which the defendants had
been convicted involved moral turpitude. Because the court found
a hearing would have certainly concluded that the crime could
be so characterized, it concluded that “[nJo prejudice has inured
to the defendants because of any procedural default leading to

*Of course, should this Court, or the Supreme Court, reverse Jennings’ con-
viction, then his suspension will automatically terminate.

—A 24—

the suspensions.” 502 F. Supp. at 618. Here it is plain, as a mat-
ter of law, that offenses of which Jennings was convicted are ones
involving moral turpitude, and Jennings has not claimed other-
wise. We conclude that Jennings was not prejudiced by the failure
of the trial judge to hold a separate hearing when he himself had
presided at the trial.

In the second place, we cannot find that Jennings has been
prejudiced by the lack of a hearing. When the prosecutor original-
ly made recommendations concerning the sentence that Jennings
should receive, he also recommended that Jennings be suspend-
ed from the practice of law before the federal courts of the
Southern District of Mississippi. At that time, Jennings and his
attorneys were given an opportunity to respond before the trial
judge rendered his decision. Neither complained of the lack of
hearing or made any comments at all regarding the suggested
suspension. Furthermore, although Jennings; Motion for Stay
of Order Suspending Defendant from Practicing Law filed below
makes passing mention of the trial court’s failure to conduct a
hearing, it does not request a hearing, nor does it disclose what
matters Jennings would have brought before the attention of the
court had such a hearing been held. The primary argument of
the motion is directed toward contending that the trial court
should not have suspended Jennings before his conviction was
finalized by appeal. Under the particular circumstances we hold
that Jennings was not denied due process of law.

The judgment of conviction and the order suspending Jenn-
ings from the practice of law before the federal courts in the
Southern District of Mississippi is therefore affirmed.

AFFIRMED.

-

— APPENDIX B —

(Unites States of As. an United States District Court to
__ Mevos 8. suermncs __, __ SO@TMEEN DISTRICT oF tassissiPri :
ae -. » enna em,

tn the presence of ihe sitorney lor the gurernemen:
the Getonden! sppesied © person on ihn oie —| as wal 33 |

omen [| UU WITHOUT COUNML were We (mr! ede tetentomt of mat 0 menet ond bhed wheather Gubembemt bevwed te hs
mee! nepenmed by ee ord the tl reson: emer nga mone eter ome eal meet

GUILTY, ond the court bemg satintied thet LL smor0 Commmonnt, «2 yworcunrr
there 9 a factual Baws bor ihe phos

Ld MOT GUILTY. Detendant is drm barged
There beng MET meee) of
Bucur

Ovtondent hes been 4 os charged of the ottemet vot Welating Section 287, Title 16,
, United States Code: Presenting falee claims, as charged in Cownts 2, 4, 8
and 12 of the Iadictacat.

Thee comet ached wt other Gotemdom Nad emythang te oy athy metgmom umchd met be precemam 6) Ber mre me malin mt gree te Uh omer ony

eee een we eppe ered We Ree Cnet the (ane elimataged the Grtemtent quty 6. herged omnd (own tod ond erdered that The detemdemt =

Mere met te the Ramen, Comes ol a toe te 8 permed

Comet 2: Five 3) poose; om condition thet the defendant be confined in « jail type or
treatment inetitetion for « period of sia (6) soaths, the execution of the reneiader

+ ond pay « fine te the ows of $7,500.

Lr)

ae

eat

_——

=e

-

ed

—

Cownte 4, © and 12: IT 18 ADJUDGED thet the iaposition of sentence is hereby suspended
and the defendant is placed on probation for « period of five (5) years concurrent

wom with the probation tapeced is Cowst 2, and poy « fine isn the eum of $7,500 os cock.
ae ome of the three counts.

a ‘The fines imposed are for « tatal of $30,000 and defend ie ordered to etend committed
wetil the fine is peid or be is otherwies discharged by due course of Lav.

OA
—
OR Om
ee oe
MO km
vo

——

ET 16 FURTHER ADJUDCED that defendant report directly te the tustitution on bis ows te
begia the service of bis

© etme te Be pein Condes of prenn emgmnd dene am herertey codhened Winat ee gett al eh imme ot puede imam wat tome watt Flee
spear ete od te pede be mend the Cnt mae bang) tee (nn at ete tee 8 Ole pete ot pedicel
om me Gemg Fe probes pened & wake 6 eee prteme eed of tee em pert dk, ee en eee 4 eet ad

Ps

P tho caust estan commuament to the saxtedy of the Asacnsy Constdl and oon emanrads or

ee ee ed
ete ee
ae

Citteau asl con un

a

” vay pany tite —
Bim Nidan Ul Rasen, Jo —_— aa gS
om ee oT

anal baron

—~B2-

— APPENDIX B —

IN THE
UNITED STATES DISTRICT COURT
for the
Southern District of Mississippi
Jackson Division
Criminal Action No. J82-00041(C)
UNITED STATES OF AMERICA
Plaintiff
VS.
MELVIN R. JENNINGS
Defendant
ORDER OF SUSPENSION

The Court having heard the trial of this matter, and the defen-
dant having now been sentenced, by Judgment and Proba-
tion/Commitment Order dated this same date, the provisions of
which are incorporated herein, and the Court being aware that
defendant is a duly licensed and practicing attorney in the State
of Mississippi, and that the testimony during trial established that
the defendant is guilty of dishonesty in presenting false claims
in violation of federal criminal statutes, and that the provisions
of Local Rule | of the Rules of the United Siates District Court
for the Southern District of Mississippi provides that an“. . . at-
torney shall enjoy all the rights and privileges as an attorney of
this Court during good behavior, unless otherwise ordered by
the Court.”

It is THEREFORE ORDERED that the defendant be suspend-
ed, effective immediately, of all rights and privileges as an at-
torney to practice law in all federal courts within the Southern
District of Mississippi, and this suspension be in full force and
effect pending appeal in this matter.

ain

ORDERED this 29th day of June, 1983.

William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

IN THE
UNITED STATES DISTRICT COURT
for the
Southern District of Mississippi
Jackson Division
Criminal Action No. J82-00041(C)
UNITED STATES OF AMERICA
Plaintiff
VS.
MELVIN R. JENNINGS
Defendant
ORDER

This matter being considered on defciidant’s Motion to Inter-
view Jurors, in defendant’s presence, and huving considered the
arguments of counsel for the defendant and the government, and
having made its oral findings of fact in open court, which fin-
dings are adopted herein, the Court is of the opinion that the
motion is not well-taken, should be and hereby is denied.

ORDERED this 19th day of July, 1983.

William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

_ 7

BY THE COURT:
Mr. Tucker, I do not need anything further.

As counsel for the government has pointed out, Rule 606(b)
of the Federal Rules of Evidence absolutely prohibits any inquiry
into the validity of a verdict, and that no juror may testify as
to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon his or any
other juror’s mind or emotions as influencing him to assent or
to dissent from the verdict or concerning his mental process in
connection therewith.

There is an exception which deals with outside influence im-
properly brought upon the defendant — brought upon the juror.

Counsel, in his motion and in his oral argument, has stated
that the basis for the motion is that one or two jurors indicated
some confusion over an instruction, specifically the Allen Charge
which was given by this Court. This Court is of the opinion in
regard to that matter that any such inquiry would be an inquiry
into the jury’s deliberation and things influencing the jurors’ mind,
and accordingly could not be reached because the only persons
available for testimony on that matter would be the people within
the juryroom who would be the jurors themselves. Such testimony
is absolutely prohibited by Rule 606(b).

The second matter pertained to Juror Oliver Smith, and allega-
tions that he somehow received some threats to change his vote.
Those alegations, however, are not a threat brought by anyone
outside of the juryroom but specifically the allegation states that
such threats or persuasions as might have been used in regard
to Juror Oliver Smith were used by other members of the jury.
The Fifth Circuit has addressed the matter of not only the in-
fluence of the Allen Charge on jurors but also the question of
Rule 606(b) in the case of U.S. v. Benson, 648 Fed. 2d 1046. This
case was a June, 1981 case, and accordingly is a comparatively
recent case.

In that case the convicted felon brought to the attention of
the Court that one juror was seen weeping after the Allen Charge
was given, and that or another juror allegedly told them that she
and other jurors believed Benson to be — the defendant to be

a

innocent, but felt pressured into acquiescence by the — but felt
pressured to acquiesce in the verdict by the Allen Charge. The
Fifth Circuit held that the trial judge did question the juror in
question in camera about any external influences upon the jury’s
verdict, but properly refused to question her about the mental
processes involved in the jury deliberations. The court held that
the trial judge did not abuse his discretion in refusing to hold
an evidentiary hearing on the issue as the only question that would
have been asked would have concerned the juror’s internal men-
tal processes in reaching the verdict.

It is this Court’s opinion that the matters brought before the
Court on this motion and in defense counsel’s arguments can refer
only to matters that happened in the juryroom during the course
of deliberations, and would pertain only to the effect of these
conversations on the juror’s mind or his emotions in influencing
him to vote for a conviction on the four counts. This is prohibited
by Rule 606(b).

The Court further points out that each of the jurors was poll-
ed following the rendition of the verdict and each affirmatively
indicated that the verdict was his own verdict, including Juror
Oliver Smith as well as Jurors Pamela Denise Winston and
Rachael Ann Stokes.

Accordingly, the motion is overruled.

The Court, in ruling on each of these three motions, will reserve
the right to amend and edit its ruling and opinion upon prepara-
tion of the transcript.

Anything further, Gentlemen?
BY MR. TUCKER:
That’s all the government has.
BY MR. BUCK:
That’s all | have, Your Honor.
BY THE COURT:
All right, Court will stand adjourned.

win

CERTIFICATE

1, David A. Scott, Official Court Reporter, United States
District Court, Southern District of Mississippi, do hereby cer-
tify that the above and foregoing 32 pages contain a full, true
and correct transcript of the proceedings had in the aforenamed
case at the time and place indicated, which proceedings were
recorded by me to the best of my skill and ability.

I certify that the transcript fees and format comply with those
prescribed by the Court and Judicial Conference of the United
States.

This the 19th day of August, 1983.

David A. Scott

5 baa
i

ont S ain

— APPENDIX C —

IN THE
UNITED STATES DISTRICT COURT OF APPEALS
for the
FIFTH CIRCUIT

No. 83-4426

UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MELVIN R. JENNINGS
Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI

PETITION FOR REHEARING

Melvin R. Jennings
Attorney At Law
P. O. Box 11291

Jackson, Mississippi 39213
Telephone: (601) 353-1626

Pro Se

4 me

ORAL ARGUMENTS

The Appellant, Pro Se, request oral arguments and in support
of said request, submit to this honorable panel that in addition
to the facts being thoroughly and clearly explained in this Peti-
tion for Rehearing, that the Court possibly would benefit from
the presentation of the Appellant, especially if the Court desired
to ask questions.

TABLE OF CONTENTS

pre fs ee ye) Sn a eee eee Ore C2
SEE Se PPR RUIIEEIIED oc dec tecipecsescescivgsas C4
STATEMENT OF DISPOSITION OF CASE........... C5
RPA CUOIOEUE GPP BRUM CARS ccc c ccc ceciccccscvcdenn C6
SEAT ENGINE OF THE TSSUES. . 2... cc ccccccccccuvene C6

ARGUMENT NO. 1

THIS COURT ERRONEOUSLY FOUND THAT: THE
TRIAL JUDGE CAREFULLY HANDLED THE PREPARA-
TION AND USE OF THE SUMMARY CHARTS; THE
PRESENTATION OF THE CHARTS DID NOT SWAY THE
JURORS (OP., 11); THE JURORS WERE RESPONSBILE
FOR “[DJETERMINING WHETHER THE MATTERS CON-
TAINED IN THE CHARTS WERE, IN FACT, TRUE AND
CORRECT” (OP., 11): THE SUMMARY CHARTS COM-
PLIED WITH RULE 1006 TO THE EXTENT OF AC-
CURACY, VOLUMINOUSNESS AND NON-PREJUDICIAL
Se et Bt A Ree Sree Tee eee C6

ARGUMENT NO. 2

THIS COURT ERRONEOUSLY FOUND THAT “[{T]HE
CONVICTION ON THOSE COUNTS (2, 4, 8, AND 12) WERE
AMPLY SUPPORTED BY EVIDENCE INDEPENDENT OF
THE CONCLUSION REACHED BY THE SUMMARY
NESE. WUE ve SOD so 0 56s Dikceeenes jue scens eabeaicen C10

—-C3—

ARGUMENT NO. 3

THIS COURT ERRONEOUSLY CITED AS FACT ELEVEN
(11) ENTRIES THAT WERE NOT FACTS IN THE RECORDS,
AND THEREFORE, DEPRIVED THE DEFENDANT OF A
FAIR APPEAL HEARING, AND SUBSTANTIALLY PRE-
JUDICED THE DEFENDANT WITH ITS RULING BY
REACHING A CONCLUSION LOGICALLY DIFFERENT
FROM WHAT CONCLUSION PROBABLY WOULD HAVE
BEEN REACHED IF THE ELEVEN (11) ENTRIES WERE
CEE GAPE PIU EU ick bo drag doelivacsventeaduane Cl4

ARGUMENT NO. 4

THIS COURT ERRONEOUSLY CONTRADICTED ITSELF
IN THE OPINION AND ERRONOUSLY RULED ON MAT-
TERS AFTER THE CONTRADICTION CONTRARY TO
BOTH POSITIONS OF THE ISSUES................. C18

ARGUMENT NO. 5

THIS COURT ERRONEOUSLY FOUND THAT THERE
WAS “[NJO PREJUDICIAL ERROR”; TRIAL COURT ABUSE
OF DISCRETION, AND MISUSE OF THE LAW ..... C19

ARGUMENT NO. 6

THE COURT ERRONEOUSLY FOUND THAT THERE
WAS “NO MISUSE OF THE CHARGE UNDER THE FACTS
OF THE CASE,” AND THAT THE MODIFIED ALLEN
CHARGE GIVEN BY THE TRIAL JUDGE WAS THE SAME
ONE APPROVED BY THE FIFTH CIRCUIT, AND THAT
THE “JURY’S VERDICT WAS WITHOUT RHYME OR

REAR.” COPTIC, P. BE) oo ccc cccccccvevevensetr X22
CT's vo Cate vccnaccceusderctvnege ts nubiles C24
APPENDICES:

Exhibits

A. Revised G-48 Summary Chart by Jennings as to
Mathematical errors and statements ............ C25

=.

B- Revised B-49A Summary Chart by Jennings as to
Mathematical error and statements............. C26
C Original G-SO Summary Chart................. C27
D_ Revised G-51A Summary Chart by Jennings as to
Mathematical errors and statements ...... C28-C29
E Statements of Jurors to the Media............. C30
pe, RI nr C34-C35
TABLE OF AUTHORITIES
Page
Cases:
Meyes v. United States, Sth Cir. 1966,
ee ee re C8
U.S. v. Scales, 6th Cir. 1979, 594 F. 2d, cert. denied
re i ee es kes epewsecnevevive oi’ c9
Baines v. United States, 5th Cir. 1970, 126
rs, 5s Fal ok -d wk bdieew a 6 hee e ee ews C18, C21
U. S. v. Taylor, 5th Cir. 1976, 430 F. 2d 49 ........... C22
Government of the Canal Zone v. Fears,
ee re Oe Ws CPO ac ive suse eeceveéuepas C22

U. S. v. Cheramie, 5th Cir. 1975, 520 F. 2d 325, cert. denied
449 U.S. 1126, 101 S. ct. 944, 67, L. Ed 2d 112, (one judge

este iad se isp Waaahsatites a ceonene C22, C24
Nordamann v. National Hotel Company,

ey ON Ee Bc DE BOO hoc ec ncccencaccseses C23
Authorities:
ET Se GD id nv von. be bckssecsevnvepresestes C5
Federal Rules of Evidence, Rule 1006 .................. C9
The Fifth Circuit Pattern Instruction ........ C22, C23, C24

Federal Register, Vol. 45, No. 15 ................ C34, C35

aif! Gus

IN THE
UNITED STATES DISTRICT COURT OF APPEALS
for the
FIFTH CIRCUIT

No. 83-4426

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN R. JENNINGS
Defendant-Appellant.

On Appeal from the United States District Court for the

Southern District of Mississippi

PETITION FOR REHEARING

STATEMENT OF DISPOSITION OF CASE

This Petition for Rehearing is filed by Melvin R. Jennings, Ap-
pellant herein, Pro Se, from the Per Curian Judgment of Gee
and Garwood, Circuit Judges, and East, District Judge, affirm-
ing the judgement of the District Court. Appellant requests a
rehearing pursuant to Rules 32 and 40 FRAP. Judges Gee, Gar-
wood and East in their opinion misapprehended and overlook-
ed certain important facts, issues of fact, and points of law which
are pivotal to a proper resolution of the issues on appeal.

—-C6—

STATEMENT OF THE ISSUES

The issues necessary for this Petition for Rehearing are detailed
in the heading of Arguments One (1) through Six (6). In general,
they are whether or not this panel perceived as facts the careful
handling and preparation of summary charts; the amply sup-
ported evidence being sufficient; certain wrong facts; contradic-
tion of facts; and no prejudicial error.

STATEMENT OF THE CASE

The Defendant was charged in a Twelve (12) Count indictment
of submitting false claims to the United States Government; he
was tried and convicted by a jury, which after several hours of
deliberations was given a Modified Allen Charge and hence, con-
victed the Defendant of Four (4) of the Twelve (12) Counts. The
Defendant appealed the Trial Court’s ruling to the Fifth Circuit
Court of Appeal, who, upon reviewing the alledged facts of the
case, affirmed the judgment. The Defendant is now appealing,
Pro Se, to the Court through a Petition for Rehearing because
of many, many errors, some irreversible, made by both courts
and defendant's former counsel.

ARGUMENT NO. 1

THE COURT ERRONEOUSLY FOUND THAT: THE
TRIAL JUDGE CAREFULLY HANDLED THE PREPARA-
TION AND USE OF THE SUMMARY CHARTS; THE
PRESENTATION OF THE CHARTS DID NOT SWAY THE
JURORS (OP., 11); THE JURORS WERE RESPONSIBLE
FOR “[DJETERMINING WHETHER THE MATTERS CON-
TAINED IN THE CHARTS WERE, IN FACT, TRUE AND
CORRECT” (OP., 11); THE SUMMARY CHARTS COMPIL-
ED WITH RULE 100 TO THE EXTENT OF ACCURACY,
VOLUMINOUSNESS AND NON-PREJUDICIAL CONCLU-
SIONS (OP., 8).

It has been determined by Jennings from the opinion that this
Court's misconceptions of the facts are apparent and therefore
the Court should reverse itself.

ep

This argument shows the Court specifically what facts were
misleading, deceptive and/or erroneous and precisely what lead
to that error and deception.

Jennings was charged in a twelve count indictment with mak-
ing false claims to U.S.D.A. for October, 1979 through
September, 1980. The jury found Jennings guilty on four (4)
counts and acquitted him on eight (8), and because of the latter
the Court concluded erroneously as to how these guilty verdicts
were surmised, and therefore, concluded “the jury did not blanket-
ly or indiscriminately accept the results of the government’s sum-
mary chart,” (Op., 11) and “the convictions on those counts were
amply supported by evidence independent of the conclusions
reached by the summary charts,” (Op., 11).

It is evident after comparing Count 2 and Count 7, that there
was no real basis for finding the Defendant guilty on Count 2
and innocent on Count 7. These two counts are identical in every
aspect except for the amount overclaimed. The alledged overclaim
in Count 2 was $10.58 and in Count 7, $8.54 (G-35; G-36). This
indicates that through democratic voting and random selections
(Exh. E) guilty verdicts were produced, without the slightest
regard to summary charts or supporting evidence as ruled by the
Courts. This instance, is the only exception to the argument that
the summary chart (G-49A) and the independent evidence (G-35;
G-36) was not used to convict Jennings.

The Court stated that “[W]Je do not pass upon whether this
evidence standing alone would support a conviction on each of
the four counts, particularly Count 8. But the reference evidence
by no means stands alone and we do find that it was sufficient
to distinguish the jury’s verdict of guilty ou these counts from
it’s acquittal on the other eight counts” (Op., 24). These statements
support Jennings’ conclusion that this court is also uncertain as
to how guilty verdicts were determined by the jury.

It is conceivable to anyone reading exhibit G-49A that Jenn-
ings alledgedly overclaimed meals (G-49A - the West review) on
one (1) day out of one (1) particular month (concluding he was
guilty on that count) and one (1) day out of another month
(G-49A - the West Review #2) (concluding a not guilty verdict),
and one would immediately say that if he is guilty on the first

~

West Review (G-49A), then he must be guilty on the second
Review (G-49A). The jury could not have used the summary chart
to determine the guilty verdict on Count 2. (Most unlikely)

It is also apparent that the independent supporting evidence
(G-35; G-36) was not used to determine a guilty verdict by the
jurors, because if the jurors had used the West exhibits (G-35
and G-36) they would have immediately concluded that if he was
guilty on Count 2 (G-35) then he most assuredly was guilty on
Count 7 (G-36), because they were identical. Even if the Court
wants to say that the jury relied on the West Testimony at all
because she testified on both Count 2 and Count 7 showing the
same similarities and the jury apparently did not use her testimony
because Jennings was found guilty on only one (1) of those counts
(count 2).

Knowing these things to be true, one would ask why a guilty
verdict was handed down on Count 2. There was no known reason
other than random selection. (Exhibit F).

Jennings argues that the presentation and the expressed validity
and accuracy of the summary charts tended to sway or influence
the jurors. To be more candid, the summary charts were used
as a basis for the chain reaction of events that followed its
presentation.

It has been determined by way of carefully prepared analysis,
that the summary charts were conjectured, arithmetically wrong,
and very misleading, and therefore, not at all an accurate sum-
mary of the monthly reports submitted by Jennings. (Exh. A,
Exh. B, Exh. C, Exh. D)

It is Jennings’ contention that Exhibits G-49A and G-SIA
played an important role in the development of the guilty ver-
dicts for counts 4, 8, and 12.

When the trial judge saw that Brewer found it necessary to
correct its summary charts ou three (3) different occasions (Vol.
9, p. 678, p. 679 and p. 701), he should have not allowed the
use of the summary charts, because it was evident that the charts
did not comply with Rule 1006 FRE, nor case law, Myers v.
United States, 356 F 2d 469, 470 (Sth Cir.), cert. denied, 384 U.S.
952 (1966).

ay

In U.S. vs. Scales (6th Circuit 1979) 594 F. 2d 448, cert. denied
441 U..S. 946, 99 S CCt. 2168. The court ruled that “{t}he sum-
mary or chart must be accurate, authentic and properly introduced
without containing deceptive characterizations and conclusions.”
It is clear from exhibits A, B, C, and D, that even the 3rd (third)
correction made by Brewer was not accurate, that it was not
authentic as to summarizing evidence in the records, i.e., the
$8,045.07 (10% Administration Fee) is not in evidence in the
records, and that G-49A and G-51A drew deceptive characteriza-
tions and conclusions.

This court ruled that G-49A and G-SIA represented “[a]lmost
200 pages,” (Op., 8). The fact is that the claim for reimburse-
ment, (Op., 8) work sheets, (Op., 8) and Menus (Op., 9) for Tott-
sville Child Care Center, which is the subject of G-49A and
G-S51A, consisted of only 71 pages. These individual monthly
records for Tottsville are clearer to understand than G-49A and
G-51A, (Summary Charts). It is inconceivable that this court
would conclude that the charts represented voluminous matters
when this Court confirmed the triai judges’ admonitions to the
jury that it was “[t]he juries responsibility to determine whether
the matters in the chart were, in fact, true and correct”. (Op., 10)

If the Court expected the jury to fulfill this additional burden
of G-49A and G-S51A, then it logically follows that the trial court
asumed, and this court confirmed, that the jury could unders-
tand those 71 pages and calculations that alledgely composed
G-49A and G-SIA. By extention of reasoning, this Court has said
that the summary charts were not necessary.

G-49A and G-SIA logically was not necessary (see above
paragraph) and surely was inaccurate and did reach deceptive
conclusions, (Exhibits A, B, C, and D.) all being in violations
of FRE Rule 1006. The effect of these conclusions was prejudicial
to the Defendant. These conclusions directed the jurors from the
evidence to the summary charts. Thereby, inflicting a grave
substantial injustice upon the defendant.

To enhance this assertion morc, we refer you to the transcript
in Vol. 9, p. 116, tines 6-9, which shows that the jury was
thoroughly confused by the summary charts. The jurors asked,
by way of a note, “[J)judge, please explain, are we to vote on cach

—C 10—-

count as one individual count?” (The second note from the jury.
Vol. 9, p. 1116)

The summary charts led the jury to believe that the 12 count
indictment should have been voted on as one (1) count. The Court
reiterated the law and (after receiving a 3rd note from the jury).
The trial courts version of the Allen Charge was enacted (see
Argument 6). This Allen type charge assured the jury “that more
or clearer evidence could not be produced. (Vol. 9, p. 1137, lines
2 & 3). As per Argument | and 2, this statement from the Allen
Charge is inappropriate in this case.

‘The summary charts made such an impression on the jurors
and confused the jurors to the extent that all instructions of law
were ignored by the jury, or forgotten by the jury, i.e., “Please
state law again,” paragraph “witness and beyond reasonable
doubt.” (Vol. 9, p. 1116) It is easily understood why Exhibit E,
evolved. It was the product of the confusion created by the in-
accurate summaries of G-49A and G-SIA.

ARGUMENT NO. 2

THIS COURT ERRONEOUSLY FOUND THAT “(T]HE
CONVICTION ON THOSE COUNTS (2, 4, 8, AND 12) WERE
AMPLY SUPPORTED BY EVIDENCE INDEPENDENT OF
THE CONCLUSION REACHED BY THE SUMMARY
CHARTS.” (OP., 11).

“[A]mply supported by independent evidence, “was ruled by
this Court in discussing summary charts (G-49A and G-51A) on
page eleven (11) of the Opinion. On this page this Court said
in Footnote 7, that it would comment further on the independence
of the evidence when it discusses “[t]he Modified Allen Charge.
Therefore, “[s]tanding along” (Op., 24) surely refers to the sum-
mary chart discussion on page 11 of the Opinion.

This Court ruled. “[w]e do not pass upon whether this evidence,
standing along, would support a conviction on each of the four
counts, particularly Count 8. “(Op., 24)”. ‘{[BJut the referenced
evidence by no means stands alone and we do find that it was
sufficient to distinguish the jury’s verdict of guilty on those counts
from its acquittal on the other eight counts.

—-Cil—

Because of the two (2) rulings mentioned above the Defendant
has established that this Court contradicted itself on the suffi-
ciency of the evidence (Op., P. 11 and 24). The defendant points
the following facts in the record about the sufficiency of the
evidence for Count 2, 4, 8, and 12 to this Court, and requests
this Court to rehear or reverse its ruling as to the four (4) guilty
findings.

COUNT 2: November 16, 1979 - The Defendant was found
guilty because (1) an SDOE Representative visited the Center at
breakfast on this day and alledgely observed and counted 40 (for-
ty) children during her stay, and the Director reported serving
64 for the same period (G-49A reflects this). Mrs. West or the
Court did not consider the fact that children could have come
for breakfast after her visit, thus, making the meal count higher
for that meal. There was a difference, however, of 24 children
at a rate of .4410¢ each, totaling $10.58 in overclaim per the West
Report. The document used by Mrs. West was incomplete. Mrs.
West testified that she saw at the Day Care Center the records
(Vol. 7, lines 14-15); she also testified (Vol 7, P. 310, lines 22
& 24) that what she saw at the center (G-16) would coincide with
what she counted that day. Ms. Knight testified that Mrs. West
would get her information directly from her. (Vol. 7, P. 457, lines
11-17). Bearing in mind the conflicting testimonies, there is surely
reasonable doubt as to the independent evidence supporting the
guilty verdict for Count 2, resulting from the West testimony and
the conflicting Knight testimony. In Vol. 7, P. 313 and 314 in
refering to G-36 as testified by Mrs. West, said that “[a]t the pre-
sent time there had been no change in the children receiving free
and reduced meals.” “But today the only ones that were there
were the free ones.” She reported the number of free children
as being 47 which conflicts with her previous testimony of 40
children for that meal. Following cross-examination, Mrs. West
testified in Vol 7, P. 314, lines 22-23 “[{I] really don’t remember,
I don’t know. It’s been three (3) years since I did this.” It must
be remembered that Mrs. West retired three (3) years before testi-
fying and had serviced Five Hundred (500) day care centers each
month according to her own testimony. “Vol. 7, P. 300, lines
19-21)”.

Pa 2

—C 12—

Considering Mrs. West’s retired status (Vol. 7, P. 229, lines
15-16); her incomplete exhibits, her admissions that she “wrote
down what the center had prepared,” and her admissions that
she really didn’t remember, along with Ms. Knight’s testimony
that she deflated the meal count daily (Vol. 7, P. 462, lines 4-12)
and obviously reported actual at the end of the month creates
doubt. The other employee’s recollection of the number of
children also cast reasonable doubt as to the number of children
being served meals at the center; there was no consistency in any
of the testimonies given as shown below.

Mrs. West initially counted forty (40) children. She refuted that
by saying the forty-seven (47) children receiving free meals were
there that day, and then she said finally that she was not sure.
(vol. 7, P. 303, lines 1-5). Ms. Alvis Everette said that there were
fifty (50) children; (Vol. 8, P. 589, lines 6 & 7 and vol. 8, P. 606,
line 22, P. 607, lines 6-7). Martha Majors estimated twelve (12)
children (Vol. 7, P. 492, line 18, P. 493, line 1) at any one time.
Claudell Davis estimated forty-five (45) children (Vol. 7, P. 507,
line 3) at any time. Claudine Davis estimated forty (40 children
vol. 7, P. 541, lines 24, P. 542, line 2) at any one time; Helen
Knight recorded and testified that there was as many as fifty-
one (51) children (G-26) at any one time and she also testified
(Vol. 7, P. 457, lines 11-17) that Mrs. West would get her infor-
mation directly from her.

The Defendant requests that based on the facts previously men-
tioned on Count 2 that the Court reverse itself or grant a new
hearing. One must be found guilty beyond a reasonable doubt.
There obviously is reasonable doubt associated with Count 2 and
judicial error of refusing to recognize that all witnesses impeached
themselves.

Another note of importance was the amount of money spent
by the Defendant (G-16) on Count 2, which was $2,753.65 and
the amount received by the Defendant from the State Depart-
ment of Education, which was $2,206.12 (G-51A). The Defen-
dart, therefore, paid out more money than he received, i.e.,
$547.53.

COUNT 4: - January, 1980 and COUNT 12; - September, 1980
- The Defendant was found guilty on these counts because of

—C 13-—

the CCP-4A(G-18) was filled out in his own handwriting. (Op.
P. 24) One cannot be found guilty merely because he did not have
a secretary to fill out two (2) of twelve (12) documents. If there
were some inconsistencies in the two (2) documents as opposed
to the other ten (10), one might assume foul play, but there was
no inconsistencies. Can this be justice? The Defendant says NO;
this is gross abuse of our system of justice. The records clearly
reflect that beginning September, 1975 (vol. 6, P. 250, line 1)
Evelyn Henry worked as secretary for the Defendant through Oc-
tober 1979 (Vol. 6, P. 254) lines 3-5); beginning November 1,
through December, 1979 Ruth K Bell Cash (Vol. 7, P. 330, lines
5-9) worked as secretary; for the month of January, 1980 (Count
4) Jennings had no secretary, therefore he filled the CCP-4A form
out without any hidden ulterior motives; beginning February -
June, 1980 (Vol. 7, P. 341, line 24) Alice Lowall worked as
secretary, beginning June, 1980 - January, 1981 Jackie Hart work-
ed as Secretary.

If the Defendant was found guilty of filling a document out
in his own handwriting (Op. 24) rather than hiring a secretary;
then the Defendant asks that this Court reverse itself or grant
a new hearing.

The Defendant also states that the only reason he was con-
victed on the two (2) counts was because of his handwriting
which reflects back to the summary charts conclusion that the
Defendant inflated his meal count by 21.18 (Exh. G-49A) serv-
ings per meal, thereby inferring that anything reported by the
Defendant was inflationary. This is not to say, however, that the
jury actually referred to any particular figure, but instead, the
summary chart left such an overwhelming impression upon the
minds of the jurors, until there was no doubt as to his guilt on
the two (2) counts, simply because he submitted the reports in
his own handwriting.

This Court, in all fairness must reverse itself. Helen Knight
contradicted her oral testimony which was a projection of no more
than Thirty-Seven (37) children (Vol. 7, P. 429, line 26) at any
given time, and she followed that with a menu supposedly being
correct and actual and prepared by her which indicates that there
were as many as Fifty-One (51) children (Vol. 7, P. 404, line 25)
on some days during September, 1980 (Count 12). She also

—C 14—

testified that she had deflated the head count by Fifteen - Six-
teen (15-16) on the menu sheet for September, 1980 so that she
could keep the money received from these children (Vol. 7, P.
462, lines 4-12). The figures that she read in court as to the number
of children present during September, 1980, (Vol. 7, P. 404, line
25) should ultimately be increased by Fifteen (15) by her own
admissions.

The Defendant respectfully requests that this Court reverse
itself.

COUNT 8: May, 1980 - The Defendant was found guilty on
this Count (Op. p. 24) because the expert witness on the Defen-
dant’s behalf found an arithmetic error of four (4) meals ($1.76)
served during the month of May, 1980 (Count 8), which is shown
in Exh. D-2. The menus showed, 3,764 meals and the claim for
reimbursement showed 3,768 meals served (Exhibit G-22). “To
err is human,” and to find one guilty of such an insubstantial
amount and to fine him $7,500 and further sentence him to five
(5) years in jail for this count, and all counts (total $30,000.00)
is not justice, nor does it conform to contract collection regula-
tions for the food program (Exh. F, Sect. 226.9 and Sect. 226.15).
This Court should reverse this count. If this count stood alone,
not considering the summary charts, it would not even be a case
for prosecution.

The Defendant has detailed with meticulous care the counts
and its relation to the “[a]Jmply supported evidence” and therefore,
deduced that the evidence, as a whole, was absurd; filled and
inaccuracies, contradictions, extensive reasonable doubt, caus-
ed illogical conclusions by the jury (Exh. E), and was without
basis or substance and this Court should, therefore, reverse these
counts (2, 4, 8, and 12) or grant the request for a new hearing.

ARGUMENT NO. 3

THE COURT ERRONEOUSLY CITED AS FACT ELEVEN
(11) ENTRIES THAT WERE NOT FACTS IN THE RECORDS,

AND THEREFORE, DEPRIVED THE DEFENDANT OF A

‘Socrates

eat

-—C 1S—

FAIR APPEAL HEARING, AND SUBSTANTIALLY PRE-
JUDICED THE DEFENDANT WITH ITS RULING BY
REACHING A CONCLUSION LOGICALLY DIFFERENT
FROM WHAT CONCLUSION PROBABLY WOULD HAVE
BEEN REACHED IF THE ELEVEN (11) ENTRIES WERE
THE CORRECT FACTS.

Wrong Fact: The Court stated that three (3) women who served
as his legal secretaries Evelyn Henry, Jackie Hart, and Helen
Knight were the principal witnesses against Jennings. (Opinion
P. 4)

Right Fact: Evelyn Henry (Vol. 6, P. 250, line 1) and Jackie
Hart (Vol. 7, P. 349, Line 25) were secretaries and Helen Knight
was the Director of the Child Care Center, (vol. 7, P. 394, line
18) not a secretary. (Also Op. 5)

Wrong Fact: The Court stated “[T]ottsville Child Care Center
which was owned and operated by Jennings.”

Right Fact: The Center was owned by Jennings, but it was
operated by a Director (Helen Knight) and at least four (4) other
employees (Everett, Major, Davis, and Davis). (Vol. 7, P. 394,
lines 7-13).

Wrong Fact: The Court states that “the number represented
by the claims for reimbursement was not unknown to Jennings
since he stopped by the Center almost every day and had seen
the number of children in attendance”. (Op. P. 6)

Right Fact: The Court evidently has determined this statement
to be true since it was alledged by Ms. Knight (Vol. 7, P. 425,
line 10); and the Court therefore has presented that statement
as a fact rather than an allegation.

Wrong Fact: The Court stated that “[djuring the Twenty-Two
(22) days summaried in Exhibit 49-A.”

Right Fact: The Twenty-Two (22) days reflected on G-49A was
incorrect because the first West review for one (1) day should
have been “s day also, therefore, the number of days should have
been, according to G-49A, 20.67 days, with September reflec-
ting 20 days.

—C 16—

Wrong Fact: The Court stated that “insofar as the documents
underlying these summary charts include almost two hundred
(200) pages of material.” This Court has surmised that the sum-
mary charts (G-49A and G-51A) for Tottsville Child Care Center
represented voluminous records.

Right Fact: The supporting documents (G-15 - G-26) for G-49A
and G-51A represent only 71 pages.

Wrong Fact: The Court stated that “so long as supporting
evidence has been presented previously to the jury”, assumptions
are therefore allowed.

Right Fact: The summary chart G-51A mentions a 10% ad-
ministration fee of $8,045.07 as an overclaim. This particular line
item which reflects 44% of the overclaimed amount shown on
this exhibit, has no supporting evidence in records at all. Because
SPI was not on trial here and it has not been established that
Jennings could not receive a contractual fee from this organiza-
tion; it cannot be considered as an overclaim. He did not request
reimbursement from the SDOE.

Wrong Fact: This Court stated that “Jennings was the com-
plaining witness in this case.” (Opinion, P. 15)

Right Fact: This statement was incorrectly made by the trial
judge (Vol. 7, P. 432, lines 16-20) and reiterated by this court.
This statement can be clarified by the testimony given by Jenn-
ings. (Vol. 7, P. 886, lines 13-15)

Line 13 - Tucker: Did you ever threaten to bring criminal

Line 14-ec- - Tucker: -ec-actions against Ms. Hart for what
she did at your office?

Line 15 - Jennings: I considered it, but the bank beat me to it.

Wrong Fact: The Court stated that “[E]ven if Jennings had
not known of the conviction, it is apparent that he got all the
mileage out of it that he could. . .”

Right Fact: Footnote 11, of the Opinion proves that Jennings’
Counsel suspected a prosecution and conviction. If Jennings
Counsel had received proof of conviction under the discovery
order, the mileage would have been greater because they would
have been in a position to question her conviction, sentence, fine

=(1I—

and her propensity to do wrong. If discovery had been complied
with, the husband’s affidavit supporting the Motion for discovery
of psychiatric examination of government witness referring to
three (3) days in jail and four hundred dollars ($400.00) fine would
have been verified.

Wrong Fact: The Court stated that “From the circumstances
of this case it is clear that the government could have conceivably
called either the USDA auditor or the investigative agent, Brewer
to testify . . .” and “McDonald had originally audited SPI and
was, therefore, presumably in a position to testify for the govern-
ment concerning his findings.”

Right Fact: It is noted in the Opinion, page 6, that “From Oc-
tober, 1980 through February, 1981, Pace and Shelton, an in-
dependent firm, conducted an audit for SPI activities regarding
the Child Care Center,” “Archie McDonald was assigned to con-
duct another audit of SPI” for the same time period. Agent
Brewer audited records for October, 1979 through September,
1980. It is evident that Archie Mcdonald and Larry Brewer
audited two (2) different time periods, hence, drawing two (2)
different conclusions, therefore, it was essential that Pace and
Shelton, and Archie Mcdonald be allowed to testify. Their
testimony would in no way be cumulative or corroborative.

Wrong Fact: The Court stated that “the Modified Allen Charge
..»” (Opinion, P. 23)

Right Fact: Vol. 9, P. 1137, lines 8, 12 and P. 1138, lines 4-6
prove that the trial judge did not give the Fifth Circuit Modified
Allen Charge but his personal version of it. The trial judge chang-
ed “Majority” to “substantial majority”; changed “a judgment”
to “their own judgment” and added, “I realize that you have
deliberated for a long period of time, and I realize from your
last communication that you felt that you could not reach a
verdict.”

Wrong Fact: The Court stated that “the jury had deliberated
for approximately one day”. (Opinion. P. 23)

Right Fact: The jury retired on Tuesday, May 24 at 12:20 p.m.
and returned a note to the judge at 10:49 Wednesday, May 25.
It took approximately 1/2 days and two (2) notes prior to the

—C 18-—

note that stated that they could not reach a verdict. (Vol. 9, P.
1138, lines 10 and 11)

Wrong Fact: the court stated that “Nevertheless, insofar as the
documents underlying these summary charts include almost two
hundred (200) pages of material and substantial amounts of
mathematical calculations . . . (Opinion, P. 8)

Right Fact: The Defendant can only interpret that statement
as saying that the summary charts represented voluminous
records. This is not ture, the supporting documents for summary
charts G-49A and G-S5IA represented only 71 pages for a 12
month period for Tottsville.

Conclusion: This volume of identifiable errors of alledged facts,
that this Court perceived as facts of/from the record created a
“cumulative effect” (Baines v. United States, 426F. 2d 842.8 (Sth
Circuit) (1970) of errors and compounding errors in the Opinion
that is substantially prejudicial to Jennings, and demands a rever-
sal of this case, or a rehearing. One can only conclude that if
this Court had the right facts before it, that this courts’ ruling
would have been different.

If all the wrong Facts produced this Opinion, consideration
of the right Facts would have surely reached a different conclu-
sion. In Baines v. United States, a case rampant with “errors”
and “near errors” and dealing with charts, the court ruled that,

“We have concluded, after a careful study of the records,
that the cumulative effect of the district court’s errors and
near errors requires that a case as close as this case involv-
ing a cabaret tax be reversed and remanded for a new trial.”

We think the law created in Baines should apply to this case.
ARGUMENT NO. 4

THIS COURT ERRONEOUSLY CONTRADICTED ITSELF
IN THE OPINION AND ERRONOUSLY RULED ON MAT-
TERS AFTER THE CONTRADICTION CONTRARY TO
BOTH POSITION OF THE ISSUE.

ey

—C 19-

This Court says that the summary charts contained “[s]ubstan-
tial amounts of mathematical calculations,” on page 8 of the Opi-
nion, and refutes that by saying that “[w]hen a chart does not
contain complicated calculations requiring the need of an expert
for accuracy,” (Op. P. 12) and the court did determine that there
was no need for an expert, the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1616%3A1. Public record. Not legal advice.