Petition for Writ of Certiorari — Hernandez-Cartaya v. United States

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Office Supreme Court. US.

FILED

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No. ALEXANDER 1. sreves |

In the Supreme Court of the United States

OCTOBER TERM, 1984

GUILLERMO HERNANDEZ-CARTA YA,

FRANCISCO J. FERNANDEZ,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JoEL S. PERwIn, Esq.

(Counsel of Record)

PODHURST, ORSECK, PARKS, JOSEFSBERG,

TaTon, Meapow & Outn, P.A.

1201 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

(305) 358-2800

Attorney for Petitioners

March 12, 1985

E. L. Menpvensa.t, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE CIRCUIT COURT ERRED IN UP-

HOLDING THE TRIAL COURT’S REFUSAL TO VOIR

DIRE THE JURY ABOUT A NEWSPAPER ARTICLE

CONCERNING THE PETITIONERS.

II. WHETHER THE CIRCUIT COURT ERRED IN UP-

HOLDING THE DISTRICT COURT’S DENIAL OF A

NEW TRIAL ON THE BASIS OF AN ERRONEOUS

JURY INSTRUCTION SIGNIFICANTLY MISSTATING

THE GOVERNMENT’S BURDEN OF PROOF.

III. WHETHER THE CIRCUIT COURT ERRED IN UP-

HOLDING THE DISTRICT COURT’S -REFUSAL TO

GRANT A MISTRIAL ON THE BASIS OF REMARKS

MADE BY A CO-DEFENDANT WHICH CONSTITUTED

COMMENT UPON THE PETITIONERS’ FAILURE TO

TESTIFY AT TRIAL.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................. I

OPINION BELOW ...........-.----0-c:ccsccccsecsnsecsnssnsnncecsssssessensosecee 1

JURISDICTION _ ....20.20--0sec--n-cnesccsrsecencenssssensecenasessonsansonensensese 2

CONSTITUTIONAL PROVISIONS .........2.02-----:----e 2

STATEMENT OF THE CASE. .....2.........2.-----cssescooensoeseeeees 2

REASONS FOR GRANTING THE WRIT ..............-...-. 8

COINCLAIEIIOIN nnccececenececesssrensseccecssnseasesannenstersseninsstesiphacancnseass 18

TABLE OF CASES AND AUTHORITIES

Bumpus v. Gunter, 452 F. Supp. 1060 (D. Mass.

VOTB) ..n.n-nececescrernenecscsnsnensensnencusesnesnensnsccnsnncsasansuessensnes senesasan 13-14

Chapman v. California, 386 U.S. 18 (1967) -.........----- 14

Davis v. United States, 357 F.2d 438 (5th Cir.), cert.

denied, 385 U.S. 927 (1966) .........22-:-----gfeec-eleoeececennenennees 15

De Luna v. United States, 308 F.2d 140 (5th Cir.

VOG2) .nncneonccecnessascecncnsnnsesnnsentanenentavesensnsensnensunssnsnansnensanensaren 16, 17

DeRosier v. United States, 407 F.2d 959 (8th Cir.

1969) ......2ec-c-cn-cscscsscensncessereesensenssensnsnsesnsnsensesesesconsenenensenasenense 12

Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied,

4B7 U.S. 910 (1978) .....2..----ccccecscceccecceecsecsscnncenessensssseesenes 13

Fahy v. Connecticut, 375 U.S. 85 (1965, -...--.-------------- 14

Findley v. United States, 362 F.2d 921 (10th Cir. 1966),

overruled on other grounds, 564 F.2d 934 (10th Cir.

et } NERDS en cen) Ti 14

Friedman v. United States, 381 F.2d 155 (8th Cir.

) . ; Taner Kec FI 14

Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979) ........... 9,10

In Re Winship, 397 U.S. 358 (1970) ....-.----2--ceeccceeceeeeeee 13

Jackson v. Virginia, 443 U.S. 307 (1979) -......-------------+-- 13

a tre rae

OTe

III

Kissell v. Westinghouse Electric Corp., 367 F.2d 375

TES SEA vee 12

Kotteakos v. United States, 328 U.S. 750 (1946) _......... 11

Krulewitch v. United States, 336 U.S. 440 (1949) ........ 17

Langford v. United States, 178 F.2d 48 (9th Cir. 1949),

cert, denied, 339 U.S. 938 (1950) 2... 15

Linden v. United States, 296 F. 104 (3rd Cir. 1924) 15

Margoles v. United States, 407 F.2d 727 (7th Cir.), cert.

Gensed, 306 UG. 633 (1908) —......................_._._.. Yy

Marshall v. United States, 360 U.S. 310 (1959) (per

ET ps AE RS 9,13

Murphy v. Florida, 421 U.S. 794 (1975) 0. 13

Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) ... 14

Quinn v. United States, 349 U.S. 155 (1950) 20... 17

Reinstein v. Superior Court Department of the Trial

Court of Massachusetts, 661 F.2d 255 (1st Cir. 1981),

cert. dismissed, 455 U.S. 995 (1982) 0. 11

Samuels v. United States, 398 F.2d 964 (5th Cir. 1968),

cert. denied, 393 U.S. 1021 (1969) 00. 16

Screws v. United States, 325 U.S. 91 (1945) 00... 14

Shaffer v. United States, 362 U.S. 511 (1960) W000... 17

Sheppard v. Maxwell, 384 U.S. 333 (1966) 00000000... 10, 12

Silverthorne v. United States, 400 F.2d 627 (9th Cir.

1968), cert. denied, 400 U.S. 1022 (1971) 20... 10

Smith v. United States, 268 F.2d 416 (9th Cir. 1959) 15,17

Stewart v. United States, 366 U.S. 1 (1961) 00. 17

Taylor v. Kentucky, 436 U.S. 478 (1978) ........ eee 13

United States ex rel. Doggett v. Yeager, 472 F.2d 229

SE ET RSS EE eee 10

United States ex rel. Greene v. State of New Jersey,

eS 9,11

United States v. Accardo, 298 F.2d 133 (7th Cir. 1962) 9

IV

United States v. Aguiar, 610 F.2d 1296 (5th Cir. 1980),

cert. denied sub nom. Morejon-Pacheco v. United

States, 440 US. 827 (1061) -....-ncie.ccceccceccnencessonsesesrecenees- 16

United States v. Attell, 655 F.2d 703 (5th Cir. 1981) ..9,11

United States v. Concepcion Cueto, 515 F.2d 160 (lst

TID areata mcncnsinetanscresichoccaneiialanaticcereiattnlaenieinatieads 10

United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977) 14

United States v. Crawford, 581 F.2d 489 (5th Cir. 1978) 17

United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978),

cert. denied, 440 U.S. 959 (1979) .................-.-cc-eceeeeeee 9

United States v. Edwards, 576 F.2d 1152 (5th Cir.

1978). (PEF CUTIAM) -..----....222--2--.-ceneneresnonnencersnsrenecnenennee- 16

United States v. Grote, 632 F.2d 387 (5th Cir. 1980),

cert. denied, 454 U.S. 819 (1981) -...................0...2---c--e00e0 14

United States v. Hankish, 502 F.2d 71 (4th Cir. 1974)

United States v. Hyde, 448 F.2d 815 (5th Cir. 1971),

cert. denied, 404 U.S. 1058 (1972) ..onss.sssscscscccccssssssssees 9

United States v. Jacobson, 578 F.2d 863 (10th Cir.),

cert. denied, 439 U.S. 932 (1978) ....22..2.......0..-sceceeees 14

United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973) 16

United States v. Jones, 542 F.2d 186 (4th Cir.), cert.

Rosnhed,, SG WE. GE CIID sensinssneenieesnisintecicesntivionns 9, 10

United States v. Kum Seng Seo, 300 F.2d 623 (3rd Cir.

SID ccsevsscnenitscrcncnnicsiehincesiieeniainlteieabhilaietibinseiibsabeanee he 10

United States v. Lord, 565 F.2d 831 (2nd Cir. 1977)

United States v. " Nakaladski, 481 F.2d 289 (5th Cir.),

cert. denied, 414 U.S. 1064 (1973) -.......2...202222--2- eee 16

United States v. Narciso, 446 F.2d 252 (E.D. Mich.

1977) .. ‘s ; 10

PRT eres

Vv

United States v. Palermo, 410 F.2d 468 (7th Cir.

I cs in econ covecliessstaniaditinseuiedeaetlcbiasiaibanibaic aborts taal 2 aah ako 9,13

United States v. Panter, 688 F.2d 268 (5th Cir. 1982) .... 14

United States v. Pepe, 501 F.2d 1142 (10th Cir. 1974) ... 13

United States v. Perrotta, 553 F.2d 247 (1st Cir. 1977)

United States v. Pine, 609 F.2d 106 (3rd Cir. 1979) ...... 14

United States v. Pomponio, 517 F.2d 460 (4th Cir.),

cert. denied, 423 U.S. 1015 (1975) 0... 9, 10,11, 12

United States v. Pope, 561 F.2d 663 (6th Cir. 1977) ...... ic;

United States v. Rhodes, 556 F.2d 599 (1st Cir. 1977)

UTTER ckvsaihsdednslasahc caida alata shitter hentai asl alaai: 9

United States v. Robinson, 139 U.S. App. D.C. 286,

UP SE OE A oie eeaark ee 16

United States v. Rochan, 563 F.2d 1246 (5th Cir. 1977) 16

United States v. Schrimsher, 493 F.2d 848 (5th Cir.

ED sos teciecessissin cepacia aaa aaa eeter 12

United States v. Scott, 529 F.2d 338 (D.C. Cir. 1975) .... 13

United States v. Trapnell, 638 F.2d 1016 (7th Cir.

TTT wsissigiesriasciaisahbacitices anos tb deabes ddeaiatonalibachga Lida cges 9-10

United States v. Ward, 552 F.2d 1080 (5th Cir.), cert.

memes, GOR Ui Ge CITED oii cee 16

United States v. Williams, 568 F.2d 464 (5th Cir.

IEE saisicsseisirtbdaoneiciaibciilidalanintaeclitaiibiel sad cnta Leathe reteset nbs acaiatce ie 10, 12

Wilson v. United States, 149 U.S. 60 (1893) 0... 17

Fifth Amendment, United States Constitution ............. 2

Sixth Amendment, United States Constitution _............. 2

Rk 5 Spain] SAE ne en toO cA o7 OMT i 2

Rule 20.4 of the Rules of the Supreme Court ................ 2

Section 3.5(f) of the ABA Standards Relating to Fair

Trial and Free Press (1968) ................. 23 11

No.

In the Supreme Court of the United States

OCTOBER TERM, 1984

GUILLERMO HERNANDEZ-CARTAYA,

FRANCISCO J. FERNANDEZ,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioners, Guillermo Hernandez-Cartaya and

Francisco J. Fernandez, respectfully pray that a writ of

certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Eleventh Cir-

cuit entered in this proceeding on December 5, 1984, and

rendered by denial of rehearing on January 15, 1985.

OPINION BELOW

The decision of the Court of Appeals is reported at

747 F.2d 1390, and appears in the appendix hereto at A. 1.

The District Court’s orders denying post-trial motions ap-

pear at A. 15-16; neither are reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

December 5, 1984 (A. 17). A timely petition for re-

hearin’ was denied on January 15, 1985 (A. 18). This

petition for certiorari was filed within 60 days of that

date, under Rule 20.4 of the Rules of the Supreme Court.

This Court’s jurisdiction is invoked undey 28 U.S.C. §1254

(1).

CONSTITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution:

No person shall . . . be deprived of life, liberty, or

property, without due process of law... .

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed....

STATEMENT OF THE CASE

The facts of this case are not fairly presented in the

opinion of the Court of Appeals; to the contrary, some

of the most important facts are pointedly omitted from

that opinion. Where appropriate, we will reference the

Record on Appeal in the Court of Appeals (“R.”) and the

trial transcript (“Tr.”).

The petitioners, both officers of WFC Corporation, a

large financial organization headquartered in Miami, Flor-

ida, were both convicted of various tax violations (A.

3

5). They seek reversal of those convictions on three

bases, implicating their most fundamental constitutional

rights.

I. The Newspaper Article. On the morning of the

first full day of the jury’s deliberation, an article ap-

peared on the third page of the local section of the Miami

Herald, entitled “Intrigue Fills ‘Simple Tax Case’” (A.

19). Below this headline was a large insert quoting

the trial judge to have said: “ ‘The government says that

Mr. Cartaya received a bonus of $50,000 and he didn’t

report it. If you believe he got it, then he’s guilty.’—

Judge Jose Gonzalez” (A. 19).2. The body of the article

discussed not only the trial, but also the WFC Corporation

and petitioner Cartaya, providing substantial information

which the jury had not heard. For example: “But the

jurors, seven women and five men, know nothing about

FBI, Drug Enforcement Administration, Public Safety

Department and House Narcotics Subcommittee investiga-

tions of Hernandez [Cartaya] and the WFC Corp.” (A.

20). The article mentioned rumors that “WFC was

linked to the CIA or, alternatively, to Cuban dictator Fidel

Castro; that WFC was involved in drug trafficking; that

WFC was a large-scale swindle” (A. 22). It reported

that Cartaya had been arrested in the Persian Gulf and

in Miami; that an Arab country had charged “that a bank

that was operated by WFC was missing more than $30

million”; that Cartaya had been charged “with conspiring

1. A third co-defendant, Vicente Carrodeguas, was also

an appellant in the Court of Appeals. See A. 1, 5. To our

knowledge, he has not sought review by this Court.

2. This comment, of course, was an incorrect statement

of the law; as the trial court had earlier charged the jury,

conviction might only be predicated upon proof of knowing

and willful failure to report the bonus (Tr. 3914, 3915, 3918,

3922, 3923, 3924, 3925, 3926, 3928, 3929, 3930, 3931, 3932, 3933,

3933-34).

4

to use a false passport to reenter the United States after

his arrest in Ajman”; that “[t]he jurors know nothing

about the Ajman Bank or the passport acquittal”; that

the trial court had made the comment in the sub-headline

with the preface “ ‘I don’t see anything complicated’ about

the case... .”; and finally, that the trial court had denied

the defendants’ motion to dismiss the conspiracy count

with the comment that “there is substantial independent

evidence of a conspiracy.”

In other words, this article reported that the judge

thought there was substantial evidence of a conspiracy,

and believed that Cartaya was guilty for simply failing

to report the bonus; and further informed the jury about

rumors of involvement by WFC and Cartaya with the

FBI, the Drug Enforcement Administration, a House nar-

cotics subcommittee investigation, drug trafficking, and

the loss of $30 million from an Arab bank.

The defendants requested that the trial court poll the

jury to determine if anyone had read the article (Tr.

3968); the United States objected (Tr. 3968), and the

trial court denied the motion (Tr. 3970). Both Fernandez

and Cartaya assigned that ruling as error in their motions

for new trial (R. 145, 154, 158-59), and both raised the

argument in the Court of Appeals.

Il The Written Jury Charge. On the first day of its

deliberation, the jury asked for a written copy of the trial

court’s charge (Tr. 3947-48). The trial court overruled

the defendants’ objections, and ordered the court reporter

to type up the instructions (Tr. 3949, 3953). At 6:00 p.m.

the jury sent back a note that “[w]e are waiting for

instructions” (Tr. 3957), and the court called the jurors

back into the courtroom and excused them until the

following Monday (Tr. 3960-63). At some point there-

5

after, the instructions were typed up and delivered to

the jury, with the defendants given no opportunity to

review them first. They are found at Tr. 3903-35, also

consecutively numbered 1-33.

Although the written charge does tell the jury that

the government must prove guilt beyond a reasonable

doubt (Tr. 3904), the very next sentence in the transcript

(Tr. 3905) says the following (our emphasis): “Thus,

while the Government’s burden of proof is a strict or heavy

burden it is not necessary that the defendants’ guilt be

proved beyond all reasonable doubt.” What the court in-

tended to say, we think, was that the government need

not prove guilt beyond “all doubt” or “all possible doubt.”

Bu court reporter typed an instruction that the gov-

_ oO need not prove guilt beyond all reasonable doubt.

It is impossible to determine whether the trial court ac-

tually read the incorrect phrase to the jury, with the

court reporter typing it accurately; or whether the trial

court read the coi ect charge to the jury, with the court

reporter typing it inaccurately. In any event, since no

defendant was given the opportunity to review the writ-

ten charge, there was no opportunity to discover the writ-

ten error; only after the trial did the defendants review

the written charges, discover the error, and assign it as one

Dasis for a new trial (R. 145 at 1, R. 154 at 2). The trial

court denied the motions (R. 158, 159, 161), and the peti-

tioners raised the point before the Court of Appeals.

III. Closing Comment on the Petitioners’ Failure to

Take the Stand. There were six defendants at the trial,

only one of whom, Henry Heitman, Jr., testified (Tr. 3193).

He said that in early 1974, petitioner Cartaya gave him an

envelope containing some cash, and also a slip of paper

recording certain credits against Heitman’s loans from

6

the company, and instructing him to destroy the slip of pa-

per (Tr. 3199-3200). In 1976, he testified, he questioned

petitioner Cartaya in a private conversation about one credit

against his loan obligation of which he had not been

aware, asking Cartaya if that credit would be recorded

on Heitman’s W-2 form for that year, and that Cartaya

answered “Probably not” (Tr. 3229). Thus, among other

things, Heitman testified to two private conversations with

petitioner Cartaya alone, in which Cartaya had on one

occasion given him a piece of paper telling him to destroy

the evidence of credits against his loans, and on another

had verbally informed him that WFC was not reporting

another credit on Heitman’s W-2. Both were asserted to

be private conversations with Cartaya, and thus of course

Cartaya was the only person in a position to contradict

Heitman’s testimony on this point.

At the close of the testimony, Heitman’s counsel de-

clared his express intention “to argue that there is only

one person, and that is Mr. Cartaya, who can confirm

what Mr. Heitman said was true.... There is only one

man, and that was his conversation with Mr. Hernandez

{Cartaya], and he is not a witness in this case and can-

not be, and I think I have an absolute right to argue that,

Your Honor” (Tr. 3450). Heitman’s subjective intention,

therefore, was crystal clear. The trial court, however,

ruled that although Heitman was entitled to remind the

jury that he had testified, he was forbidden to comment

upon Cartaya’s failure to testify (Tr. 3452-54).

In his closing argument, Heitman’s counsel attempted

to accomplish indirectly what he had been forbidden to

do directly. He invited the jury to consider each de-

fendant separately, to consider Heitman separately, and

said that “[w]hen you do that, I ask you to bear in mind

7

that he explained to you in detail every facet of what

he did, did not do, or did know or didn’t know” (Tr.

3725). Thus, he expressly invited the jury to consider

that Heitman was different because Heitman was the only

defendant who had testified. He reminded the jury that

Heitman had turned his “nose up to something that he

doesn’t want to do, even though it would have been money

in his pocket” (Tr. 3735). He said that Mr. Heitman “didn’t

want to know” what was going on—that he must have

said to himself “ ‘I know this is going on, but how do I

know it?” (Tr. 3736). He recalled Heitman’s testimony

that “Mr. Cartaya says, ‘All right, this is what you owe

the company. You don’t have to pay it. I don’t want the

money’” (Tr. 3739). Pausing at that point, he said: “Now,

just think about this: Here is a company that—well—here

is a situation where he [Heitman] is in such close contact

with these people in a big conspiracy, in a big scheme, in

a big fraudulent situation where he handshakes with the

president [Cartaya] and the president says, ‘Forget it. You

don’t pay it. I forgive it. You don’t have to pay it’”

(Tr. 3739). Instead, Heitman’s counsel insisted, Heitman

reported the forgiveness as income on his taxes (Tr. 3739-

41). And Heitman had told the jury about that: “You

realize that if Mr. Heitman did not take the witness stand

and tell you about this, you never would have heard about

it” (Tr. 3741). Heitman’s counsel concluded that “the

evidence cannot and will not support a guilty verdict against

Mr. Heitman. He is carved out. He is different.... He is

diffey@nt and his 1977 return shows he is different than

anybody” (Tr. 3743). Thus, Heitman’s counsel told the

jury, “you have to carve him out and look at him alone,

and when you do that, ladies and gentlemen, I just know

as sure as shooting you aie going to find him not guilty”

(Tr. 3743). The jury did just that.

8

After the jury had been excused, Cartaya’s counsel,

noting that he had not wanted to interrupt Heitman’s coun-

sel’s closing, formally objected to this argument as an

indirect reference to Cartaya’s refusal to testify, and moved

for a mistrial (Tr. 3888-89). The trial court overruled

the motion, and also the motion of another defendant that

a mistrial should be granted because Heitman’s closing

argument had revealed a defense inconsistent with that of

the other defendants (Tr. 3889).

The Court of Appeals affirmed the trial court on all

three rulings. We will review its reasoning in the course

of argument.

REASONS FOR GRANTING THE WRIT

I. The Newspaper Article. The Court of Appeals as-

signed three reasons for upholding the trial court’s refusal

to take even the simple step of asking the jurors whether

they had read the offending newspaper article (A. 13).

First, the court concluded that “[mJost of the information

contained in the article did not go beyond the record as

developed at trial.” Of course the question is not whether

more of the article was innocent than prejudicial, but

whether those prejudicial aspects of the article were suf-

ficiently threatening to the defendants to warrant some

inquiry. As a general proposition, inquiry is warranted,

and the trial court abuses its discretion in failing to inquire,

when the news account at issue supplies information beyond

that known by the jury: “With hardly an exception, in

the cases in which substantial prejudicial publicity during

trial was found, the publicity involved ‘information about

g

the defendant that would not be admissible before the

jury or that was not in fact put before the jury in court.’

Thus, in a variety of contexts, the appellate courts have

found inquiry essential whenever the material at issue

might have informed the jury about aspects of the case

of which it was not aware.* Likewise, inquiry has been

held essential upon the revelation of information about

the defendant of which the jury was unaware—information

about other charges, other convictions, escape attempts, im-

proper conduct like practicing medicine without a license,

or general characterizations of criminal behavior.’ And of

3. United States v. Jones, 542 F.2d 186, 195 (4th Cir.),

cert, denied, 426 U.S. 922 (1976), quoting United States v. Hyde,

448 F.2d 815, 849 (5th Cir. 1971), cert. denied, 404 U.S. 1058

(1972). Accord, Marshall v. United States, 360 U.S. 310, 312-13

(1959) (per curiam); Goins v. McKeen, 605 F.2d 947, 953 (6th

Cir. 1979); United States v. Crowell, 586 F.2d 1020, 1024 (4th

Cir. 1978), cert. denied, 440 U.S. 959 (1979); United States v.

Lord, 565 F.2d 831, 837 (2nd Cir. 1977); T’nitec “tates v. Perrotta,

553 F.2d 247, 250 (ist Cir. 1977); United States v. Pomponio,

517 F.2d 460, 462-63 (4th Cir.), cert. denivu, 423 U.S. 1015

(1975); United States v. Accardo, 298 F.2c 133, 136 (7th Cir.

1962).

4. See, e.g., United States v. Attell, 655 F.2d 703 (5th Cir.

1981) (reversal of prior conviction for same crime); United

States v. Richardson, 651 F.2d 1251 (8th Cir. 1981) (shooting

of prospective government witness); Goins v. McKeen, 605 F.2d

947 (6th Cir. 1979) (pre-trial attempt to plead); United States

v. Herring, 568 F.2d 1099 (5th Cir. 1978) (threats against gov-

ernment witness); United Staves v. Lord, 565 F.2d 831 (2nd

Cir. 1977) (stabbing of government witness); United States

v. Perrotta, 553 F.2d 247 (1st Cir. 1977) (exclusion of money

as evidence); United States ex rel. Greene v. State of New

Jersey, 519 F.2d 1356 (3rd Cir. 1975) (mid-trial attempt to

plead); United States v. Pomponio, 517 F.2d 460 (4th Cir.),

cert. denied, 423 U.S. 1015 (1975) (defendants’ decision not to

testify); United States v. Palermo, 410 F.2d 468 (7th Cir. 1969)

(witnesses’ invocation of Fifth Amendment); Margoles v. United

States, 407 F.2d 727 (7th Cir.), cert. denied, 396 U.S. 833 (1969)

(exclusion of real evidence at trial).

5. See, e.g., Marshall v. United States, 360 U.S. 310 (1959)

(per curiam); United States v. Trapnell, 638 F.2d 1016 (7th Cir.

(Continued on following page)

10

course, inquiry is essential if the news reports at issue

contain some comment upon or evaluation of the evi-

dence already known by the jury—comment by the writer

or by the participants in the trial about the strength of

the government’s case or the defense.*®

In this case these criteria were satisfied. The article

not only contained all sorts of things about the defendants

and their company that were not known to the jury—

allegations of drug trafficking and swindles and bank fraud

and involvement with various investigatory organizations;

in addition, it contained the comment by the trial judge

that there was substantial independent evidence of con-

spiracy, and the erroneous comment that Cartaya would be

guilty if he simply received some money and failed to report

it, irrespective of his criminal intent. The question for

the trial court—and for the appellate court upon de novo

review’—was not whether “most” of the article repeated

what the jury already knew, but whether those (sub-

stantial) portions which provided information unknown

to the jury were sufficiently prejudicial to warrant in-

quiry.

Footnote continued—

1980); Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979); United

States v. Williams, 568 F.2d 464 (5th Cir. 1978); United States

v. Rhodes, 556 F.2d 599 (ist Cir. 1977); United States v. Pom-

ponio, supra, 517 F.2d 460; United States v. Concepcion Cueto,

515 F.2d 160 (1st Cir. 1975); United States v. Hankish, 502

F.2d 71 (4th Cir. 1974); United States ex rel. Doggett v. Yeager,

472 F.2d 229 (3rd Cir. 1973); United States v. Kum Seng Seo,

300 F.2d 623 (3rd Cir. 1962).

6. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 357 (1966);

Silverthorne v. United States, 400 F.2d 627, 641-42 (9th Cir.

1968), cert. denied, 400 U.S. 1022 (1971); United States v.

Narciso, 446 F.2d 252, 319-20 (E.D. Mich. 1977).

7. See Sheppard v. Maxwell, 384 U.S. 333, 362 (1966);

United States v. Jones, 542 F.2d 186, 194-95 (4th Cir.), cert.

denied, 426 U.S. 922 (1976); United States ex rel. Doggett v.

Yeager, 472 F.2d 229, 239 (3rd Cir. 1973).

11

Second, the Court of Appeals concluded that the

“{o]jther information [in the article] was unrelated to the

charges for which the appellants were being tried.” That,

of course, is precisely our point. As the cases already

cited make clear, the revelation of unflattering information

about the defendants, even if unrelated to the specific

charges, can obviously prejudice the jury against them.

We have provided already dozens of examples. And in

the face of such material, at least when the defendant has

requested a voir dire, the trial court has no discretion to

decline to question the jury about such prejudicial ex-

trinsic material.®

In other words, if the material at issue is potentially

prejudicial—that is, if its character leaves no room for the

trial court to exercise discretion in finding it innocent or

harmless—then the reviewing court will not speculate as

to whether any member of the jury has seen it; the mere

possibility that such prejudicial material has reached the

jury is sufficient to warrant a new trial in the absence of

a voir dire.’ In this context, the Court of Appeals’ com-

8. This requirement derives from §3.5(f) of the ABA Stan-

dards Relating to Fair Trial and Free Press (1968), providing

that when the material at issue is potentially prejudicial to the

jury, “the court may on its own motion or shall on motion of

either party question each juror....” See Reinstein v. Superior

Court Department of the Trial Court of Massachusetts, 661 F.2d

255, 257 (1st Cir. 1981), cert. dismissed, 455 U.S. 995 (1982);

United States v. Hood, 593 F.2d 293, 296 (8th Cir. 1979); United

States v. Herring, supra, 568 F.2d at 1104, 1105; United States

v. Lord, 565 F.2d 831, 838 (2nd Cir. 1977); United States v.

Perrotta, 553 F.2d 247, 249 (1st Cir. 1977); United States v.

Pomponio, supra, 517 F.2d at 463.

9. See United States v. Attell, 655 F.2d 703, 706 (5th Cir.

1981); United States v. Perrotta, supra, 553 F.2d at 251, citing

Kotteakos v. United States, 328 U.S. 750, 765 (1946); United

States v. Herring, supra, 568 F.2d at 1103-04 (“there is nothing

on the record before us to indicate that the defendant’s guilt

was not impermissibly prejudged”’); United States ex rel. Greene

v. State of New Jersey, 519 F.2d 1356, 1357 (3rd Cir. 1975);

United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974).

12

ment—that the trial court’s ruling should be upheld be-

cause most of the material was “unrelated to the charges” —

is difficult to comprehend. In the overwhelming majority

of cases in this area, that is precisely the reason for re-

quiring some voir dire.

Third and finally, the Court of Appeals observed that

the trial court generally instructed the jury not to read

about the case, and found that a sufficient basis for up-

holding the ruling. But these cases arise precisely because

juries repeatedly ignore such boilerplate instructions and

expose themselves to prejudicial material all the time; for

this reason, the overwhelming majority rule is that

such general instructions are insufficient.*° That caution

is especially appropriate in this case, because here the trial

court told the jury only not to read anything about “these

proceedings” or about “the trial” (Tr. 899, 1210, 1505, 1861,

2629, 2938, 3307, 3887, 3943, 3964, 3971, 4000, 4007). Even

a conscientious juror could have obeyed that instruction

and still have read this article about the defendants, their

company, and unrelated accusations against them.”

We submit that the trial court manifestly abused its

discretion in failing to recognize the inherently prejudicial

nature of this newspaper article, and thus erred in failing

to take the simple step of questioning the jurors about

whether or not they had seen it. The Court of Appeals, fail-

10. See, e.g., United States v. Herring, supra, 568 F.2d at

1104; United States v. Williams, 568 F.2d 464, 471 (5th Cir.

1978); United States v. Lord, 565 F.2d 831, 838 (2nd Cir. 1977);

United States v. Perrotta, 553 F.2d 247, 251 (1st Cir. 1977);

United States v. Pomponio, supra, 517 F.2d at 463; United States

v. Schrimsher, 493 F.2d 848, 854 (5th Cir. 1974).

11. See United States v. Herring, supra, 568 F.2d at 1101

n.6; United States v. Rhodes, 556 F.2d 599, 601 (1st Cir. 1977),

citing DeRosier v. United States, 407 F.2d 959, 963 (8th Cir.

1969), and Kissell v. Westinghouse Electric Corp., 367 F.2d 375

(Ist Cir. 1966). See generally Sheppard v. Maxwell, 384 US.

333, 353 (1966).

13

ing to inform the reader of the tremendously-prejudicial

material contained in the article, upheld the trial court’s

ruling on three bases which have overwhelmingly been

rejected by almost every other court to consider this issue.

It thus failed in its supervisory responsibility to assure the

sanctity of our federal jury system.”

Il. The Jury Instruction. As we have noted, the writ-

ten jury instructions provided to the jury contained the

patently-erroneous charge that “it is not necessary that the

defendants’ guilt be proved beyond all reasonable doubt”

(Tr. 3905). It is well-settled that “the Due Process Clause

protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to con-

stitute the crime with which he is charged.”"* And “[a]

defendant is entitled to have a jury apprised of this stan-

dard....”'* Nor can there be any question that the trial

court’s instruction was erroneous, because it plainly allowed

the jury to convict despite some reasonable doubt: “[I]t

was error not to give an instruction adequately apprising

the jury of its duty to acquit should the case leave them

with any reasonable doubt on the issue.”!®

12. See Murphy v. Florida, 421 U.S. 794 (1975); Marshall

v. United States, 360 U.S. 310, 313 (1959); United States v.

Palermo, 410 F.2d 468, 472 (7th Cir. 1969).

13. In Re Winship, 397 U.S. 358, 364 (1970). Accord,

Jackson v. Virginia, 443 U.S. 307, 309 (1979); Taylor v. Ken-

tucky, 436 U.S. 478 (1978).

14. United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir.

1974). Accord, Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert.

denied, 437 U.S. 910 (1978).

15. United States v. Scott, 529 F.2d 338, 340 (D.C. Cir.

1975). See Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied,

437 U.S. 910 (1978) (overturning instruction that a reasonable

doubt is one explicable by a good or sufficient reason, since

such a charge “suggested that a doubt based on reason was

not enough to acquit... .”); Bumpus v. Gunter, 452 F. Supp.

(Continued on following page)

14

The Court of Appeals acknowledged the mistake, but

noted that the charges must be viewed as a whole, and that

the trial court correctly stated the burden of proof at other

times (A. 7-8). That was not enough to overcome the

inherent prejudice of the manifest error in this crucial

area.¢ The Court of Appeals also commented that the

defendants had failed to object to the charge when it was

given orally. But there is absolutely no evidence of record

that the trial court’s oral charge misstated the burden of

proof. As the United States itself insisted in its appellee’s

brief (p. 48), it is equally possible that the court reporter

simply typed it incorrectly, and the defendants’ central

constitutional right should not depend upon speculation.

In any event, a misstatement of the burden of proof in a

criminal case is certainly fundamental error.” Nor can

it possibly be said that the error was harmless beyond a

reasonable doubt.'* If ever there was plain error, this was

it.

Footnote continued—

1060 (D. Mass. 1978) (overturning instruction that jurors must

have defensible reasons for acquittal). In contrast, it is not

error to instruct the jury that the government need not prove

guilt beyond all possible doubt. United States v Jacobson, 578

F.2d 863, 866 (10th Cir.), cert. denied, 439 U.S. 932 (1978);

Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967).

16. See United States v. Panter, 688 F.2d 268, 270 (5th

Cir, 1982); United States v. Grote, 632 F.2d 387 (5th Cir. 1980),

cert. denied, 454 U.S. 819 (1981); United States v. Pine, 609

F.2d 106, 108 (3rd Cir. 1979); United States v. Pope, 561 F.2d

663 (6th Cir. 1977); United States v. Corrigan, 548 F.2d 879

(10th Cir. 1977); Notaro v. United States, 363 F.2d 169, 175

(9th Cir. 1966).

17. See generally Screws v. United States, 325 U.S. 91

1945); Findley v. United States, 362 F.2d 921, 922 (10th Cir.

1966), overruled on other grounds, 564 F.2d 934 (10th Cir. 1977).

18. See Chapman »v, California, 386 U.S. 18, 24 (1967);

Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963); United States

v. Corrigan, 548 F.2d 879 (10th Cir. 1977).

15

Il. The Co-Defendant’s Closing Argument, We have

reviewed the co-defendant’s closing argument, in which

he attempted to distinguish himself from the other defen-

dants on the ground that he had taken the stand and told

his story; and in which he emphasized that this story

focused in large measure upon private conversations with

petitioner Cartaya which only petitioner Cartaya was in

a position to affirm or rebut. The Court of Appeals’ opinion

acknowledges co-defendant Heitman’s manifest subjective

intention “to point out to the jury that only Hernandez-

Cartaya could deny the verity of Heitman’s testimony and

Hernandez-Cartaya had not taken the witness stand”

(A. 10). But the Court of Appeals’ opinion finds only

one passage from the closing argument which constituted

an indirect way of making that point—the passage in which

Heitman’s counsel told the jury that his client was dif-

ferent, and in the process suggested that Heitman was

different because he had taken the stand. In our view that

one example is enough, but there are other examples, ig-

nored by the Court of Appeals, in which Heitman’s coun-

sel focused repeatedly upon his testimony about private

conversations with Cartaya.

We acknowledge that a co-defendant has the right to

remind the jury that he has testified. He does not, how-

ever, have the right to emphasize that a co-defendant has

not testified by emphasizing his own testimony about

private conversations with that co-defendant. In a variety

of contexts, the courts have held that such comment is

impermissible if it constitutes a challenge to produce evi-

dence which only the co-defendant could have produced.’

19. See, eg., Davis v. United States, 357 F.2d 438, 441

(5th Cir.), cert. denied, 385 U.S. 927 (1966); Smith v. United

States, 268 F.2d 416, 421 (9th Cir. 1959); Langford v. United

States, 178 F.2d 48, 55 (9th Cir. 1949), cert. denied, 339 U.S.

938 (1950); Linden v. United States, 296 F. 104 (3rd Cir. 1924).

16

The co-defendarit’s comments under such circumstances

would “naturally and necessarily” be taken by the jury

as a comment upon the defendant’s failure to testify, since

only the defendant could have provided the challenged

evidence.” And in this case a second standard of review

is satisfied—the subjective standard—requiring reversal

if the remark discloses a “manifest intention” of calling

the jury’s attention to the defendant’s failure to take the

stand.”

Of course, one can hardly blame Heitman; his “right

to confrontation allows him to invoke every inference from

[his co-defendant’s] absence from the stand.” De Luna v.

United States, 308 F.2d 140, 143 (5th cir. 1962). If that

right could not be accommodated to the other defendants’

right to be free of comment upon their failure to take the

stand, the trial court was required to sever the cases:

‘If an attorney’s duty to his client should require him to

draw the jury’s attention to the possible inference of guilt

from a co-defendant’s silence, the trial judge’s duty is to

order that the defendants be tried separately.”** From

20. See United States v. Edwards, 576 F.2d 1152, 1154 (5th

Cir. 1978) (per curiam); United States v. Rochan, 563 F.2d 1246,

1244 (5th Cir. 1977); United States v. Ward, 552 F.2d 1080, 1083

(5th Cir.), cert. denied, 434 U.S. 850 (1977); Samuels v. United

States, 398 F.2d 964, 968 (Sth Cir. 1968), cert. denied, 393 US.

1021 (1969).

21. See United States v. Aguiar, 610 F.2d 1296, 1302 (5th

Cir. 1980), cert. denied sub nom. Morejon-Pacheco v. United

States, 449 U.S. 827 (1981); United States v. Edwards, 576 F.2d

1152, 1154 (5th Cir, 1978) (per curiam).

22. De Luna v. United States, supra, 308 F.2d at 141.

Acco’, United States v. Aguiar, supra, 610 F.2d at 1301; United

States v. Nakaladski, 481 F.2d 289, 302 (5th Cir.), cert, denied,

414 U.S. 1064 (1973); United States v. Johnson, 478 F.2d 1129,

1131-32 (5th Cir. 1973); United States v, Robinson, 139 U.S.

App. D.C. 286, 432 F.2d 1348, 1351 (1970). In this case, sev-

eral of the defendants moved for severance of their cases both

before and after the offending remarks, and in addition moved

(Continued on following page)

a ee ee

17

the petitioners’ perspective, the trial court was either re-

quired to sever the cases, or to forbid Heitman to exercise

his right to comment upon their failure to take the stand.

He did neither, a J thus committed reversible error. That

error struck at the heart of the petitioners’ right to remain

silent, and as this Court has noted, it would ignore the “de-

velopment and purpose” of the privilege to apply it “nar-

rowly or begrudgingly—to treat it as an historic relic at

most merely to be tolerated ....” Quinn v. United States,

349 U.S. 155, 162 (1950). Nor is such prejudice in any

sense cured by a general jury instruction affirming the

defendant’s right to remain silent.”

In isolating only one part of the closing argument, and

finding it sufficiently ambiguous to survive constitutional

scrutiny, the Court of Appeals ignored the central prej-

udice of that closing argument—its reminder that Heitman

had testified about private conversations with Carvaya

which only Cartaya could have contradicted. The manifest

intention of those comments was to emphasize Cartaya’s

failure to testify; their objective effect, naturally and neces-

sarily, was to call the jury’s attention to that failure to

testify.

The three errors in this case struck at the heart of the

petitioners’ constitutional and federal rights. They denied

Footnote continued—

for a mistrial after those remarks (Tr. 3888-89). And even

if none of the defendants had moved for severance, “the triai

court’s duty to sever when prejudice appears, continues through-

out the trial.” United States v. Crawford, 581 F.2d 489, 492

(5th Cir. 1978), citing Shaffer v. United States, 362 U.S. 511,

516 (1960). See De Luna v. United States, supra, 308 F.2d 140.

23. De Luna v. United States, supra, 308 F.2d at 154-55,

citing Krulewitch v. United States, 336 U.S. 440 (1949). Accord,

Stewart v. United States, 366 U.S. 1 (1961); Wilson v. United

States, 149 U.S. 60 (1893), cited in Smith v. United States, 268

F.2d 416, 420 n.2 (9th Cir. 1959).

18

them the right to trial by jury based exclusively on the

evidence presented, free of the extrinsic influence of news

accounts. They denied them the right to demand of the

government proof beyond a reasonable doubt. And they

denied them the unpunished exercise of their right to re-

main silent. Any one of these errors would have re-

quired reversal by the Court of Appeals. All three together

compel reversal.

CONCLUSION

It is respectfully urged that a writ of certiorari should

issue to review the judgment and decision of the United

States Court of Appeals for the Eleventh Circuit in this

case.

Respectfully submitted,

PopHURST, ORSECK, PARKS, JOSEFSBERG,

Eaton, Mzeavow & Ot, P.A.

1201 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

(305) 358-2800

By: Jog. S. Perwin

March 12, 1985

Al

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Vicente CARRODEGUAS, Guillermo Hernandez-

Cartaya, Francisco J. Fernandez,

Defendants-Appellants.

No. 81-6204.

United States Court of Appeals,

Eleventh Circuit.

Dec. 5, 1984.

_ Defendants were convicted in the United States Dis-

trict Court for the Southern District of Florida, José A.

Gonzalez, Jr., J., of conspiring to defraud the United States

in ascertainment, computation and collection of income and

employment taxes and other tax offenses, and they ap-

pealed. The Court of Appeals, Johnson, Circuit Judge,

held that: (1) although verbal jury instruction mistakenly

required that defendants’ guilt be proved beyond all pos-

sible doubt, trial court’s instructions, when considered as

a whole, did not mislead jury as to Government’s burden

of proving defendants’ guilt beyond all r-asonable doubt,

and (2) 1emarks made by codefendant’s attorney, which

were clearly intended to distinguish conduct of codefendant

from that of defendants and to point out that Government’s

evidence and cross-examination had failed to refute co-

A. 2

defendant’s testimony, and which may have been intended

to indirectly highlight to jury the failure of the other de-

fendants to take the witness stand, did not constitute an

improper comment on defendants’ failure to testify.

Affirmed.

1. Indictment and Information (Key) 10.1(2)

Defendants, who alleged that grand jury which handed

down the indictments had been drawn from a jury venire

lacking sufficient numbers of Hispanics to satisfy fair cross-

section requirement of Sixth Amendment and Jury Selec-

tion and Service Act but who did not produce reliable data

showing the number of Hispanics living in the relevant com-

munity, failed to sustain the burden of proving a violation

of fair cross-section requirement. U.S.C.A. Const. Amend.

6; 28 U.S.C.A. § 1861 et seq.

2. Criminal Law (Key) 822(13)

Although verbal jury instruction mistakenly required

that defendants’ guilt be proved beyond all possible doubt,

trial court’s instructions, when considered as a whole, did

not mislead jury as to Government’s burden of proving

defendants’ guilt beyond all reasonable doubt.

3. Criminal Law (Key) 721(3)

Remarks made by code‘endant’s attorney, which were

clearly intended to distinguish conduct of codefendant from

that of defendants and to point out that Government’s

evidence and cross-examination had failed to refute co-

defendant’s testimony, and which may have been intended

to indirectly highlight to jury the failure of the other

defendants to take tie witness stand, did not constitute an

improper comment on defendants’ failure to testify.

A. 3

4. Criminal Law (Key) 721(1)

In determining whether a particular statement con-

stitutes an improper comment on defendant’s failure to

testify, test is whether the statement was manifestly in-

tended or was of such character that a jury would naturally

and necessarily take it to be a comment on failure of ac-

cused to testify; court cannot find that counsel manifestly

intended to comment on defendant’s failure to testify if

some other explanation for his remark is equally plausible.

5. Criminal Law (Key) 721(1)

In deciding whether a jury would naturally and neces-

sarily take a statement to be a comment on a defendant’s

failure to testify, question is not whether jury possibly or

even probably would view the challenged remark in that

manner but whether the jury necessarily would have done

so.

6. Criminal Law (Key) 868

Determination of whether newspaper article published

during jury deliberations was so prejudicial as to require a

voir dire of the jurors is within sound discretion of trial

court.

7. Criminal Law (Key) 868

Trial court did not abuse its discretion in refusing to

voir dire jury about a newspaper article published during

its deliberations where most of the information contained

in the article did not go beyond the record as developed at

trial and where other information was unrelated to the

charges for which defendants were being tried.

A. 4

8. Indictment and Information (Key) 191

Violation of section of Internal Revenue Code pro-

hibiting the filing of fraudulent returns was not a lesser

included offense of Code section prohibiting the making

and subscribing of income tax forms not believed to be

true and correct. 26 U.S.C.A. §§ 7206(1), 7207.

9. Internal Revenue (Key) 5303

Fact that defendant’s name was signed to the tax re-

turns was prima facie evidence in prosecution for income

tax violations that he actually signed them. 26 U.S.C.A.

§ 6064.

10. Conspiracy (Key) 47(9)

Evidence was sufficient to support defendant’s con-

victions for conspiring to defraud United States in ascer-

tainment, computation, and collection of income and em-

ployment taxes as well as other tax violations. 18 U.S.C.A.

§ 371; 26 U.S.C.A. § 7206(1).

Jose E. Martinez, English, McCaughan & O’Bryan,

Coral Gables, Fla., for Carrodeguas.

William A. Meadows, Jr., South Miami, Fla., Robert

C. Josefsberg, Joel S. Perwin, Miami, Fla., for Hernandez-

Cartaya.

Irwin J. Block, Fine, Jacobson, Block, Klein, Colan &

Simon, P.A., Miami, Fla., for Fernandez.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup,

Chief, Appellate Section, Robert E. Lindsay, Terry L.

Fredricks, Tax Div., U.S. Dept. of Justice, Washington,

D.C., for plaintiff-appellee.

A. 5

Appeals from the United States District Court for the

Southern District of Florida.

Before RONEY and JOHNSON, Circuit ne and

MORGAN, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Appellants Vicente Carrodeguas, Guillermo Hernandez-

Cartaya, and Francisco J. Fernandez were officers of WFC

Corporation, a large financial organization headquartered

in Miami, Florida. This company was engaged primarily

in the business of facilitating international loans. Between

1973 and 1978, the company’s operations were extremely

successful, and each year the appellants agreed to award

sizeable cash bonuses to themselves as well as other key

officers. The appellants further agreed and instructed the

recipients that these bonuses were not to be reported as

additional compensation on their income tax returns. The

appellants then arranged for the corporation’s accounting

records to conceal the payment of these bonuses, which

totalled well over $190,000 each year.

The appellants were each convicted on one count of

conspiring to defraud the United States in the ascertain-

ment, computation, and collection of income and employ-

ment taxes. 18 U.S.C.A. § 371. In addition, Carrodeguas

was convicted on six counts of violating 26 U.S.C.A. §

7206(1) (making and subscribing income tax forms not

believed to be true and correct) and four counts of violating

26 U.S.C.A. § 7206(2) (assisting in the preparation of in-

come tax return forms that were false and fraudulent).

Hernandez-Cartaya was aiso convicted on three counts of

violating 26 U.S.C.A. § 7206(1) and four counts of vio-

lating 26 U.S.C.A. § 7206(2). Fernandez was also convicted

on three counts of violating 26 U.S.C.A. § 7206(1). We

affirm the convictions of each appellant on every count.

A. 6

The appellants join in contesting three issues on appeal.

We shall address each of these in turn, before discussing

the remaining issues that Hernandez-Cartaya and Fernan-

dez raise separately.

{1] First, the appellants challange the denial of mo-

tions to dismiss their criminal indictments. These motions

were based on the contention that the grand jury which

handed down the indictments had been drawn from a jury

venire lacking sufficient numbers of Hispanics to satisfy

the fair cross-section requirement of the Sixth Amendment

and the Jury Selection and Service Act of 1968, 28 U.S.C.A.

§ 1861 et seq. See Taylor v. Louisiana, 419 U.S. 522, 95

S.Ct. 692, 42 L.Ed.2d 690 (1975).

The denial of the appellants’ motions occurred after

a special evidentiary hearing in a separate district court

combining similar motions made in thirteen other criminal

trials. United States v. Cabrera-Sarmiento, 533 F.Supp.

799 (S.D.Fla.1982). The district court rejected these chal-

lenges because the movants failed to sustain their burden

of proving a violation of the fair cross-section requirement,

as defined in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct.

664, 668, 58 L.Ed.2d 579 (1979). The movants had not pro-

duced reliable data showing the number of Hispanics liv-

ing in the relevant community. After hearing an appeal

from convictions entered in one of the combined criminal

cases, a panel from this Court recently affirmed the district

court’s order denying the motions to dismiss. United States

v. Esle, 743 F.2d 1465 at 1469-76 (11th Cir.1984) (per cu-

riam). We follow this binding precedent and likewise

affirm the district court’s denial of the appellants’ mo-

tions to dismiss*their indictments.

[2] The second issue raised by all appellants con-

cerns the trial court’s instructions to the jury. Before

A. 7

charging the jury, the court gave counsel for each appellant

a written copy of its proposed instructions. These instruc-

tions included a correct charge as to the government’s bur-

den of proving guilt beyond a reasonable doubt. After

| ruling on all objections and incorporating the accepted

changes, the court verbally charged the jury in accordance

| with the written instructions, except for a one-word mis-

take the appellants now claim constitutes reversible error.

| From the trial transcript it appears the judge instructed

the jury:

[E]very defendant is presumed by law to be innocent.

The law does not require the defendant to prove his

innocence... .

The Government has the burden of proving him

guilty beyond a reasonable doubi, and if it fails to do

SO, you mSt acquit him.

Thuz, while the Government’s burden of proof is

a strict or heavy burden, it is not necessary that the

defendants’ guilt be proved beyond all reasonable

doubt. It is only required that the Government’s proof

exclude any reasonable doubt concerning the defen-

dants’ guilt. (emphasis added )

ate handewdi Ai etree “ale

The transcript differs from the proposed written instruc-

tions which correctly stated at this point that it was not

necessary that the defendants’ guilt be proved beyond all

possible doubt. None of the appellants objected further

when, after completing the charge, the judge asked if there

were objections to the instructions as given.

We acknowledge the mistake and note the inconsis-

tency between its language and that of the preceding and

following sentences in the given instructions. Yet we do

not review the propriety of particular language in the

EEE a

A. 8

abstract. Rather, we look to the adequacy of the charge

as a whole. United States v. Park, 421 U.S. 658, 674-76,

95 S.Ct. 1903, 1912-14, 44 L.Ed.2d 489 (1975); United States

v. Pool, 660 F.2d 547, 558 (11th Cir.1981) (Unit B). Read-

ing the entire charge satisfies us that the jury was ad-

equately instructed as to the government’s burden of prov-

ing guilt beyond a reasonable doubt. The trial judge

directed the jury to follow the instructions as a whole and,

in at least nineteen specific instances, correctly stated that

in order to convict a defendant on a particular charge the

jury would have to find him guilty beyond a reasonable

doubt. In fact, with regard to the three federal statutes

the appellants were found to have violated, the specific in-

structions were that the evidence for each count must show

guilt beyond a reasonable doubt. Viewed as a whole, then,

the charge fairly advised the jury that guilt could only be

imposed absent all reasonable doubt.

In United States v. Vasilaky, 168 F.2d 191 (2d Cir.1948),

the Second Circuit reviewed a jury charge in which, after

stating three times in the course of the instruction that guilt

must be proved “beyond a reasonable doubt,” the trial

judge summarized: “If the Government in this case has

failed to establish [its ownership of the property allegedly

stolen] by a fuir preponderance of the evidence, then of

course that ends the case, and you will direct a verdict

for the defendants.” Id. at 192. Later in the instruction,

the judge again referred to the beyond-a-reasonabie-doubt

standard. On appeal, the Second Circuit characterized

the judge’s error as “patently a slip-of-the-tongue mistake”

which would have been corrected had the defendant’s coun-

sel objected. Instead, the defendant’s attorney had stated

after the charge that “there is no exception or request to

charge.” Id. The court concluded that the single slip did

not mislead the jury and affirmed the appellant’s con-

viction.

cic aaa Mais Anais. Onishi, sens

iota 08 bene

A. 9

This Court has in the past endorsed the Vasilaky

holding and affirmed a criminal conviction where a trial

judge apparently stated that the appellant had conceded an

important element of the crime when in fact the appellant

had not. Hoover v. United States, 358 F.2d 87, 88 (5th Cir.

1966). Again, the appellant’s counsel did not object to

the jury charge as made. The Hoover Court reasoned:

“[I]t can hardly be argued that the jury was affected to

the detriment of the appellant by this charge when it was

obvious that none of the experienced trial lawyers repre-

senting the appellant were so affected.” Id. This com-

ment is equally relevant to the appellants in the present

appeal who similarly did not notice the mistake and did

not, when asked by the court immediately after it verbally

instructed the jury, register any objections to this portion

of the instructions. We hold that the trial court’s instruc-

tions, when considered as a whole, did not mislead the jury

as to the government’s burden of proving the appellants’

guilt beyond all reasonable doubt.

[3] The third issue raised by each appellant involves

the trial court’s refusal to declare a mistrial on motions the

appellants made after closing arguments were completed.

The basis for these motions was an allegation that the clos-

ing argument by counsel for co-defendant Henry Heitman,

Jr., whom the jury eventually acquitted, improperly com-

mented upon the appellants’ failure to testify.

Heitman was the only defendant to take the stand

during the trial. His testimony concerned conversations

he had with Hernandez-Cartaya, in which Heitman ex-

pressed his desire not to receive the annual bonuses in the

form of cash, but rather as non-taxable business per-

quisites or personal loans. Following Heitman’s testi-

mony, the appellants submitted a motion in limine seeking

to restrict Heitman’s counsel from referring to the failure

A. 10

of other defendants to testify. Heitman’s attorney dis-

agreed, arguing he should be able to point out to the jury

that only Hernandez-Cartaya could deny the verity of

Heitman’s testimony and Hernandez-Cartaya had not taken

the witness stand. Under the trial court’s ruling, Heit-

man’s attorney could comment on the fact that Heitman

had testified, the content of Heitman’s testimony, and fail-

ure of the government to rebut this testimony. However,

he could not comment—either “directly” or “indirectly to

the degree .. . that it might prejudice the other Defen-

dants”—on their decision not to testify. The trial judge

refused to permit any reference to Hernandez-Cartaya as

the only person who could refute Heitman’s testimony be-

cause it would seriously prejudice Hernandez-Cartaya’s

right not to testify.

In his closing argument, Heitman’s attorney did not

comment directly on the appellants’ failure to testify.

Instead, he attempted to distinguish Heitman from the

other defendants as one who chose not to accept the annual

bonuses in an illegal form. The appellants charge that, in

referring to Heitman’s testimony and characterizing him as

different from the other defendants, the attorney indirectly

highlighted to the jury the failure of the other defendants

to take the witness stand. After a careful study of the clos-

ing argument, however, we conclude that in only one in-

stance did Heitman’s attorney even come close to com-

menting indirectly on the appellants’ failure to testify at

trial, and in this instance the statement was not of such

character that the jury would take it to be a comment on

the appellants’ failure to testify.

Midway through his closing argument, Heitman’s at-

torney stated:

I suppose we can look at Mr. Heitman—and |

don’t know how you are going to do this, ladies and

A. ll

gentlemen, I don’t know how you are going to do

this—His Honor is going to tell you during the course

of the instructions that you must under your oath,

separate each defendant and consider him on trial as

though he were on trial alone, all by himself.

Now, that will take some difficult mental gym-

nastics because somehow or other you are going to

have to visualize him in this corner all alone where

you consider his guilt or innocence.

When you do that, I ask you to bear in mind that

he explained to you in detail every facet of what he

did, did not do, or did know or didn’t know.

He subjected himself to the rigors of the power of

our government’s cross examination with all the help

[the government] has. . ., with all the documents [it]

has, with all the help that [it] can be given, and re-

sponded, ... “[T]hat’s just the way it was; that is

true.”

[4,5] We have previously stated: ‘A mere favorable

comment upon the fact that one of several co-defendants

testified does not involve the same potential for prejudice

as an adverse comment by counsel upon the failure to tes-

tify of the other co-defendant.” United States v. Hodges,

502 F.2d 586, 587 (Sth Cir.1974). In determining whether

a particular statement constitutes an improper comment on

a defendant’s failure to testify, the ‘test... is whether or

not the statement was manifestly intended or was of such

character that a jury would naturally and necessarily take

it to be a comment on the failure of the accused to testify.”

United States v. Wilson, 500 F.2d 715, 721 (5th Cir.1974),

cert. denied, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658

(1975). The Court cannot find that counsel “manifestly

intended to comment on the defendant’s failure to testify,

A. 12

if some other expianation for his remark is equally plau-

sible.” United States v. Rochan, 563 F.2d 1246, 1249 (5th

Cir.1977). Moreover, in deciding whether a jury would

naturally and necessarily take the statement to be a com-

ment on the defendant’s failure to testify, “the question is

not whether the jury possibly or even probably would

view the challenged remark in this manner, but whether

the jury necessarily would have done so.” Williams v.

Wainwright, 673 F.2d 1182, 1185 (11th Cir.1982) (empha-

sis in original). The burden of proof is on the appellants

to show, under these principles, that Heitman’s attorney

manifestly intended to comment upon their failure to

testify or that the jury necessarily construed his closing

argument as a comment upon their failure to testify.

United States v. Jones, 648 F.2d 215, 218 (5th Cir.1981)

(Unit B). Because the remarks made by Heitman’s at-

torney were clearly intended to point out that Heitman

did not wish to receive cash bonuses and that the govern-

ment’s evidence and cross examination had failed to refute

Heitman’s testimony, we do not find the remarks improper.

They were not of such character that the jury would

necessarily take them to be a comment on the appellants’

refusal to testify.

[6, 7] Three remaining issues are raised separately.

Citing United States v. Herring, 568 F.2d 1099 (5th Cir.

1978), Hernandez-Cartaya and Fernandez charge that the

trial judge erred in refusing to voir dire the jury about a

newspaper article published during its deliberations. The

appellants claim the article contained prejudicial material

about the defendants and improper comments attributed

to the judge. The determination of whether this article

was so prejudicial as to require a voir dire of the jurors is

within the sound discretion of the trial court. United States

v. Goodman, 605 F.2d 870, 882 (5th Cir.1979). After re-

A. 13

viewing the evidence and the content of the article, we

affirm the trial court’s exercise of its discretion. Most of

the information contained in the article did not go beyond

the record as developed at trial. Other information was

unrelated to the charges for which the appellants were

being tried. Further, the likelihood that the information

reached the jurors was small, especially in light of the

trial court’s specific instructions to the jurors not to read

or listen to media accounts concerning the trial. We

will not presume that the jurors disregarded these in-

structions. Gordon v. United States, 438 F.2d 858, 873-74

(5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed,

2d 56 (1971).

[8,9] Fernandez contends the trial court erred in re-

fusing to instruct the jury that a violation of 26 U.S.C.A.

§ 7207 is a lesser included offense of 26 U.S.C.A. § 7206(1).

This contention is foreclosed by the decisions of this Court

in Escobar v. United States, 388 F.2d 661, 666 (5th Cir.

1967), cert. denied, 390 U.S. 1024, 88 S.Ct. 1411, 20 L.Ed.2d

282 (1968), and United States v. Gaines, 690 F.2d 849, 856

(11th Cir.1982), which note the only difference between

the two statutes is the requirement in Section 7206 that

a false statement be made “under the penalties of perjury.”

Like the federal tax returns filed in these precedents, the

returns filed by Fernandez contained standard perjury

clauses. As for Fernandez’s claim that no evidence was

presented showing he actually signed the returns the gov-

ernment introduced as evidence, which he conceded were

true and correct copies of returns on file with the Internal

Revenue Service, the fact that Fernandez’s name was signed

to the returns is prima facie evidence that he actually

signed them. 26 U.S.C.A. § 6064. Fernandez did not offer

evidence rebutting this presumption.

A. 14

[10] Finally, Fernandez claims that the evidence

presented was insufficien. to support his convictions. The

test for reviewing the sufficiency of evidence to support a

conviction is whether, viewing the evidence and the in-

ferences that may be drawn from it in the light most

favorable to the government, a reasonable trier of fact

could find that the evidence establishes guilt beyond a

reasonable doubt. United States v. Bell, 678 F.2d 547,

549 (5th Cir.) (Unit B), cert. granted, 459 U.S. 1034, 103

S.Ct. 444, 74 LEd2d 600 (1982). After reviewing the

record, we conclude that sufficient evidence exists against

Fernandez to support his convictions.

The judgments entered by the trial court are AF-

FIRMED.

Se

—

A. 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 81-23-CR-JAG

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GUILLERMO HERNANDEZ CARTAYA, et al.,

Defendants.

ORDER

THIS CAUSE has come before the Court upon the

Defendant's, GUILLERMO HERNANDEZ CARTAYA, Mo-

tion For New Trial. The Court has considered the Motion,

and being otherwise duly advised, it is

ORDERED AND ADJUDGED that the Defendant's

Motion for New Trial be and the same is hereby DENIED.

DONE AND ORDERED in chambers at Fort Lauder-

dale, Florida, this 20th day of October, 1981.

/s/ Jose A. Gonzalez, Jr.

United States District Judge

A. 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 81-23-CR-JAG

UNITED STATES OF AMERICA,

Plaintiff,

vs.

FRANCISCO J. FERNANDEZ, et al.,

Defendants.

THIS CAUSE has come before the Court upon certain

pending Motions of the Defendant, FRANCISCO J. FER-

NANDEZ. The Court has considered the Motions and, be-

ing otherwise duly advised, it is

ORDERED AND ADJUDGED as follows:

1) That the Defendant’s Motion for New Trial and

Adoption of Co-Defendant’s Motion for New Trial be and

the same are hereby DENIED.

2) That the Defendant’s Motion for Judgment of

Acquittal be and the same is hereby DENIED.

DONE AND ORDERED in chambers at Fort Lauder-

dale, Florida, this 20th day of October, 1981.

/s/ Jose A. Gonzalez, Jr.

United States District Judge

A. 17

(Filed December 5, 1984)

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6204

D.C. Docket No. 81-23

UNITED STATES OF AMERICA,

Plaintiff- ee,

versus

VICENTE CARRODEGUAS, GUILLERMO HERNANDEZ-

CARTAYA, FRANCISCO J. FERNANDEZ,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

Before RONEY and JOHNSON, Circuit Judges, and

MORGAN, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the South-

ern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgments

of conviction of the said District Court in this cause be

and the same are hereby, AFFIRMED.

Entered: December 5, 1984

For the Court: Spencer D. Mercer,

Clerk

By: /s/ (Illegible)

Deputy Clerk

ISSUED AS MANDATE: Feb. 5, 1985 (AS TO HER-

NANDEZ-CARTAYA and FERNANDEZ ONLY )

A. 18

(Filed February 15, 1985)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6204

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICENTE CARRODEGUAS, GUILLERMO HERNANDEZ-

CARTAYA, FRANCISCO J. FERNANDEZ,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITIONS FOR REHEARING

(January 15, 1985)

Before RONEY and JOHNSON, Circuit Judges, and MOR-

GAN, Senior Circuit Judge.

PER CURIAM:

IT IS ORDERED that the petitions for rehearing filed

in the above entitled and numbered cause be and the same

are hereby denied.

Entered for the Court:

/s/ (legible)

United States Circuit Judge

A. 19

Friday, July 3, 1981/The Miami Herald 3C

INTRIGUE FILLS ‘SIMPLE TAX CASE’

‘The government says that Mr.

Cartaya received a bonus of $50,000

and he didn’t report it. If you

believe he got it, then he’s guilty.’

Judge Jose Gonzalez

By AL MESSERSCHMIDT

Herald Staff Writer

To the 12 jurors sitting in the blue chairs in the

federal courtroom, the trial of Guillermo Hernandez Car-

taya and five other officials of the Coral Gables-based

WFC Corp. is a simple tax case.

The hints of intrigue — fleeting comments about the

CIA, bank frauds phony passports, political payoffs — sur-

face abruptly and vanish quickly during testimony of gov-

ernment witnesses.

After hearing nearly three weeks of testimony, the

jurors got the case at 10:30 am. Thursday, deliberated

until 6 p.m. and went home for the weekend.

During the course of the day they asked three ques-

tions: Could they have a transcript of all the testimony?

Could they have a copy of the judge’s instructions on the

tax law? Could they have a jar of instant coffee? Judge

answered “no” to the first, “yes” to the other two.

The jurors know the intimate details of the alleged

scheme to pay non-taxed, cash bonuses to top-ranking

WFC officials. The jurors know who stuffed the cash

envelopes, who prepared the bonuses list, who withdrew

the cash from local banks.

Details don’t surface

But the jurors, seven women and five men, know

nothing about FBI, Drug Enforcement Administration,

Public Safety Department and House narcotics subcom-

mittee investigations of Hernandez and the WFC Corp.

“We're not here to try the business practices of WFC,”

Judge Jose Gonzalez: has told the eight attorneys in the

courtroom.

“I don’t see anything complicated” about the case,

Gonzalez said last Friday after the jury left the court-

room. “The government says that Mr. Cartaya received

a bonus of $50,000 and he didn’t report it. If you believe

he got it, then he’s guilty.”

The six former WFC officials are charged with re-

ceiving nearly $1 million in cash bonuses from 1973 to

1978 and with failing to pay income taxes on the money.

Hernandez, a Bay of Pigs veteran, is chafged with

receiving bonuses of $50,000 to $80,000 a year. The firm

paid between $150,000 and $400,000 in cash bonuses per

year, according to the testimony.

The trial has pitted the same men who once shared

the privileges of executive life at WFC — expense accounts,

private loans, luxury cars and big salaries — against each

other.

Sitting with Hernandez as defendants are WFC chief

financial officer Vincente Carrodeguas; executive vice

president Francisco J. Fernandez; banking officer Henry

G. Coryat; vice president Henry N. Heitman and vice

president Lance J. Cunha.

Sitting in the witness chair have been former WFC

officials David Masnata, R. Peter Kelly, Fernando A. Capa-

blanca and Carlos Fernandez.

A. 21

Indictment tracked

Using the testimony of the former WFC officials and

nearly 160 exhibits, Assistant U.S. Attorney Sam Strother

has ploddingly tracked the 37-count indictment that charges

the six defendants with tax conspiracy and evasion.

Strother’s witnesses have testified that the bonus list

was first prepared by Hernandez in 1973. Some bonuses

were credits against loans that WFC officials obtained

from the firm. Other bonuses were cash, mostly $100

bills, stuffed in white envelopes.

With the bonuses came summary financial statements.

The statements, according to the witnesses, bore the warn-

ing “destroy after reading.”

The 1975 bonuses were disguised in WFC records as

an $82,830 payment for legal services to a Bogota law

firm. The address on the law firm’s letterhead is a pizza

parlor, according to testimony.

Hernandez’s bonus of $80,000 was transferred through

a Panama bank to a WFC subsidiary in the name of Her-

nandez’s former wife, according to the testimony.

Charges upheld

Gonzalez ruled last Friday that “there is substantial

independent evidence of a conspiracy.” He refused to

dismiss the conspiracy charges after Strother ended pros-

ecution testimony.

The defense questioning of Strother’s witnesses has

provided the only glimpse inside the mysterious banking

conglomerate that once operated from Ponce de Leon

Boulevard in Coral Gables.

Hernandez was one of three men who formed WFC

as an international banking firm in 1971. By the mid-

A. 22

1970s, the firm’s loan portfolio was hundreds of millions

of dollars.

Defense Attorney Irwin Block uses the figure $500

Hernandez controlled three Miami banks. WFC sub-

sidiaries operated banks in Colombia, the Persian Gulf,

Panama and Costa Rica.

With the build-up of business came the rumors that:

WFC was linked to the CIA or, alternately, to Cuban

dictator Fidel Castro; that WFC was involved in drug

trafficking; that WFC was a large-scale swindle.

No criminal charges were filed, although a task force

of DEA and FBI agents were assigned to a wide-range

investigation.

But Hernandez was arrested, first in the Persian Gulf,

then in Miami. Officials in the Arab country charged that

a bank that was operated by WFC was missing more than

$30 million. U.S. officials charged Hernandez with con-

spiring to use a false passport to reenter the United States

after his arrest in Ajman. Hernandez was acquitted of

the passport charge.

The jurors know nothing about the Ajman bank or

the passport acquittal.

But, the 12 jurors learned about the passport case

during defense questioning of David Masnada, an attorney,

now living in Spain, who once worked for WFC.

Masnada was holding a passport for Hernandez when

the WFC head was arrested in Ajman. Masnada later

gave the passport to the FBI and received immunity from

prosecution.

- Ae eet cm he ene te ath hes

A. 23

Masnada said Hernandez asked him to validate the

passport. “It would have been illegal,” he said.

“But, you destroyed papers and didn’t pay taxes,”

said attorney Robert Josefsberg.

Gonzalez prevented Strother from questioning Mas-

nada in detail about the alleged Ajman bank fraud.

Defense attorney Block questioned former WFC offi-

cial Fernando Capablanca, who managed WFC’s bank in

Costa Rica, about another bank fraud.

“Wasn’t it necessary to pay commissions that were

disguised as loans” to Latin American officials to receive

bank charters, Block asked.

“T don’t know if I would agree,” answered Capablanca.

Block suggested that WFC disguised a payoff in Costa

Rica to a political leader as a loan. “That’s not correct,”

said Capablanca. “That loan was to finance a newspaper.”

The loan was never repaid, said Capablanca who left

Costa Rica after the bank suffered $400,000 in losses.