Petition for Writ of Certiorari — Acosta v. United States

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JOSEPH F. SPANIOL, Se

‘ CLORK

RT

eee :

NO.

in the

Supreme Court

of the

United States

Pow

JOSE LUIS ACOSTA,

DRADEN PADGETT, JR.

JOSEPH BROWN, and ODIS McMULLEN

Petitioners

VS.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE ELEVENTH CIRCUIT COURT OF APPEALS

ALVIN E. ENTIN, ESQ.

ENTIN, SCHWARTZ, SCLAFANI

& CULLEN

1500 Northeast 162nd Street

North Miami Beach, Florida 33162

Telephone: (Dade) (305) 944-6556

(Broward) (305) 921-6556

QUESTION PRESENTED

Whether the defendants were denied their

constitutional right to confrontation when the

trial court prevented access to the chief

government witness's tax returns and financial

information.

TABLE OF CONTENTS

Page(s)

Question Precemeg oi... 5c. 2 a ee i

pe a | Peter re iii

IN: TO ec a ee 2

PRE © i a Oe eee 2

Diehemen of the Cae... eee 3

Diatement of the Facts... 35k... 4

PE - io i tee eee li

Ceeegiee . 5 hs 3 eee 29

PONE oon 1G eee 30

il

TABLE OF CITATIONS

Cases Page(s)

Brady v. Maryland,

RS a 14, 25

Chavis v. North Carolina,

Go £20 210 (4th Cir. 190800)............... 26, 27

Couch v. United States,

cy. | 16

Dennis v. United States,

ee 20, 21

Giglio v. United States,

tik ds v6 ae kX awk 25, 28

Gilmore v. United States,

206 F.20 565 (Sth Cir. 1958) ................. 22

Greenwell v. United States,

Oat pee ue wc. Cir. 1963) ................ 22

Heathman v. United States District Court,

503 F.2d 1032 (9th Cir. 1974) .............. ho

Palermo v. United States,

a 25

People v. Ramistella,

306 N.Y. 379, 118 N.E.2d 566 (1954) .... 22... 20

ili

TABLE OF CITATIONS (Continued)

Cases Page(s)

Rovario v. United States,

glk Ml: a pee eetaae eee 18, 20, 21

St. Regis Paper Co. v. United States,

oer ry a pa 16, 17

United States v. Agurs,

Ge A OI Sk okt nb os cue se ececeks 25

United States v. Andolschek,

142 F.2d 5038 (2d Cir. 1944) ............. 18, 19, 20

United States v. Bensabat,

568 F.2d 1226 (5th Cir.)

cert. denied, 436 U.S. 927 (1978) ............. 26

United States v. Bernard,

607 F.2d 1257 (9th Cir. 1979) ................ 26

United States v. Carrillo,

561 F.2d 1125 (5th Cir. 1977) ee eo nara e 23, 24

United States v. Conroy,

589 F.2d 1258 (5th Cir.)

cert. denied, 444 U.C. 831 (1979)............. 24

United States v. Coplon,

185 F.2d 620 Cd Cir. 1950) .................. 19

iv

TABLE OF CITATIONS (Continued)

Cases Page(s)

United States v. Davis,

636 F.2d 1028 (5th Cir.)

cert. denied, 454 U.S. 862(1981)............. 17

United States v. Griggs,

. 113 F.2d 672 (11th Cir. 1983) ................ 26

United States v. Hathcock,

G6] F.2e 397 Gee Cir. 1071)... . ... c.g. 22

United States v. Lawless,

709 F.2d 485 (7th Cir. 1983)................. 17

United States v. Lopez,

328 F.Supp. 1077 (E.D.N.Y.1971)............ 20

United States v. Mangan,

575 F.2d 32 (2d Cir.)

cert. denied, 439 U.S. 931 (1978) ............. 18

United States v. Moudy,

462 F.2d 414 (5th Cir. 1968) ................. 22

United States v. Nixon,

a ee OD ak on vn coven nc vee 18, 21, 22

United States v. Reynolds,

OP Ga By RE URO 6 65 ok vn ees eee 18

NO.

in the

Supreme Court

of the

United States

JOSE LUIS ACOSTA,

DRADEN PADGETT, JR.

JOSEPH BROWN, and ODIS McMULLEN

Petitioners

VS.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE ELEVENTH CIRCUIT COURT OF APPEALS

Petitioners pray that a Writ of Certiorari be issued

to review the judgment of the United States Court of

Appeals for the Eleventh Circuit entered on August

12, 1985, rehearing January 8, 1986.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit is not published and is printed

in the Appendix.

JURISDICTION

The judgment and opinion of the United States

Court of Appeals for the Eleventh Circuit was entered

on August 12, 1985, rehearing denied January 8, 1986.

The jurisdiction of this court is invoked under 28 U.S.C.

§1254.

STATEMENT OF THE CASE

The defendants, Jose Acosta, Joseph Brown, Draden

Padgett, Jr., and Odis McMullen, along with numerous

codefendants, were charged with having violated the

drug laws of the United States through conspiracy,

importation, and possession with intent to distribute

marijuana. In addition, Jose Acosta was charged with

Continuing Criminal Enterprise (C.C.E.) and with

racketeering (RICO). Defendants Joseph Brown and

Draden Padgett, Jr. were charged with filing false

income tax returns.

After a trial by jury, guilty verdicts were returned

against Jose Acosta on all counts except Counts 18 and

19; ageinst Joseph Brown on all counts except Counts

18 and 19; against Draden Padgett, Jr. on all counts;

and against Odis McMullen on all counts except Counts

16 through 19.

Based thereupon, Jose Acosta was sentenced to a

combination of concurrent terms totaling 60 years

incarceration and a $100,000 fine. Joseph Brown and

Draden Padgett, Jr. were sentenced to a combination

of concurrent and consecutive terms totaling 40 years

incarceration and a $200,000 fine. Odis McMullen was

sentenced to a combination of concurrent and consecutive

terms totaling 12 years and a $15,000 fine.

On appeal to the Eleventh Circuit Court of Appeals,

petitioners’ convictions were affirmed. On rehearing,

petitioner Draden Padgett, Jr.'s convictions and sentences

on Counts 24 and 25 were vacated, and Petitioner Jose

Luis Acosta’s convictions and sentences on Counts.2

and 3 were vacated. All remaining convictions and

sentences having been affirmed, this Petition for Writ

of Certiorari in the United States Supreme Court follows.

3

STATEMENT OF THE FACTS

The chronology of the Cobb marijuana trafficking

conspiracy began in 1977 when Clyde Walton Cobb

awoke to discover a disabled truck-trailer full of marijuana

across the street from his house. Cobb assisted Jose

Acosta with the unloading of the truck and agreed to

provide temporary storage. Thereafter, Cobb agreed

to act as a salesman for that and future loads.

In September, 1977, Cobb requested that his brother-

in-law, Daniel Abbey, join the conspiracy. However, it

was not until December, 1977 that Abbey agreed to

join, first as an unloader, and thereafter as a bookkeeper

responsible for the collection of monies. In that month,

Cobb, Abbey and Acosta were involved in the transfer

of marijuana from one van to the trucks of Carlton

Reeves and James Sellers, who transported it to the

Cottondale Farm.

Thereafter, Acosta requested that Cobb locate a

new hole or offload site. After Sellers and Reeves

discovered the Rock Pile in Northern Florida, this secluded

location was viewed by Cobb, Acosta, Tony Bascaro

and Luis Bosch, and approved for use.

On December 29, 1977, Acosta, Abbey, Cobb and

Charlie Brake observed the “Tanila” enter the inlet to

the Rock Pile from their vantage point at the Ramada

Inn. The “Tanila” was offloaded by Acosta, Bascaro,

Bosch and others, and weight slips were prepared and

maintained by Abbey. The marijuana was then trucked

by Reeves, Sellers, and others, to the Cottondale Farm

in Jackson County. The purchase money was collected

and delivered by Abbey to Acosta’s house in Carol

City.

While exiting the bay, the “Tanila” hit a bridge

and was seized by authorities. The crew, consisting of

Alfonso, Castro and Green, was arrested.

At Acosta’s request, Reeves and Sellers located a

new hole or offload site. On January 31, 1978, the

“Navigator” was offloaded at the Eglin Air Force Base.

Acosta was present, directing Cari Hughes to unload

the “Navigator” hold. The marijuana was trucked by

Sellers, Reeves, Francis Marquis, and others, to the

Cottondale Farm, where it was unloaded by various

persons, including Guriak. After the “Navigator” ran

aground and was seized by authorities, the purchase

money was collected and delivered to Acosta’s house.

In February, 1978, Sellers and Reeves were requested

to locate a new hold, and discovered the Aucilla River

Fishcamp. In surveilling the area, Sellers and Reeves

were approached by Joseph Brown and Draden Padgett,

Jr., who suggested that they could supply an offloading

crew for $160,000 per load; payment being due upon

compietion of the offloading. The site and offer were

approved by Acosta. “

On March 1, 1978, a successful offloading was

conducted at the Aucilla River Fisheamp by Brown,

Padgett, Jr., and Odis McMullen in the presence of

Acosta. The marijuana was trucked by Vernon Mattson,

Marquis, and others, to the farm in Madison County

where it was unloaded by various individuals, including

Guriak. The collected purchase monies were delivered

to Acosta’s house.

On March 15, 1978, a second shipment was

successfully offloaded at the Aucilla River Fishcamp

and taken to the Madison farm.

On April 1, 1978, Reeves, Sellers, Brown, McMullen,

Acosta, Bascaro, Padgett, Jr., and others were present

and involved in the offloading of the “Miss Too Nicey”.

Acosta supervised at both the vessel and the farm.

Carl McCardle and James Bailey acted as surveillance

radio men; Brown ran an offload boat; and Theodore

Manning drove one of the trucks. The marijuana was

taken to the Madison farm and unloaded by Guriak,

Alfred Vadney, and others. The purchasers money was

collected and taken to Acosta’s house by Bailey.

In April, 1978, after Abbey had delivered the

marijuana profits to Cobb at his Golden Beach house,

Cobb was robbed by individuals posing as law enforcement

officers. The thieves were arrested and the money

recovered. Half of the money was confiscated by the

Internal Revenue Service, and Cobb ultimately agreed

to the RICO forfeiture of the remaining monies.

\

In late April, 1978, defendant Guriak and others

successfully offloaded a shrimp boat at the Aucilla

River Fisheamp. John Janes helped load the trucks

which were driven by Marquis, Manning, Mattson and

others to a warehouse in Tallahassee. Residue was

discovered by law enforcement officers in one of the

trucks leaving the warehouse. A raid of the facility

disclosed marijuana. Agents also seized drug-related

records from Pat Waldrop. Said records were identical

to those which were later to be found in one of Cobb's

private planes. The purchase money was delivered by

Manning to Acosta’s house in Carol City.

A meeting was then held between Cobb, Acosta,

Brown, Padgett, Jr., and McMullen, wherein the offloading

crew requested an increase of fees. Upon Acosta’s refusal

to pay any additional sums, Padgett, Jr. and McMullen

terminated their involvement in the conspiracy.

After law enforcement surveillance officers were

chased off the Madison farm by Reeves, the storage

facility was abandoned. A new site in Gadsden County

was located.

In July, 1978, the Cobb organization successfully

offloaded another shrimp boat at the Aucilla River

Fishcamp. Marquis, Janes, and others trucked the

marijuana to the new farm at Quincy, in Gadsden County,

where it was unloaded by Vadney and others.

At this time, simultaneous surveillance was being

conducted by law enforcement authorities at the Gadsden

County fartn, the Ramada Inn, the Dutch Kitchen Motel,

and at an agricultural weigh station stop. The evidence

presented at trial and at the Motion to Suppress revealed

that two Cubans were arrested at 5:30 a.m. transporting

marijuana through an agricultural weigh station. One

of these individuals, Joe Ferrer, told authorities that

he had met his contact at the Ramada Inn in Tallahassee,

and that said contact was driving a black and burgundy

Mercedes. A review of the telephone toll records at the

hotel revealed that Acosta and Bosch had called several

of the same phone numbers in Miami as had Ferrer.

While the officers were reviewing the hotel phone

records, Acosta and Bosch checked out of the Ramada

Inn and were followed to the Dutch Kitchen Motel. A

search of Acosta’s room at the Ramada Inn revealed a

McDonald’s bag, upon which was written the name of

the arrested Cuban, Joe Ferrer.

On July 22, 1978, an orange Vega arrived at the

Dutch Kitchen Motel. The driver was observed carrying

a full bag into Acosta’s room and leaving with an empty

bag. Trial evidence later revealed that the driver of

the orange Vega was Vadney, who had delivered marijuana

money to Acosta. The orange Vega was thereafter

followed to the Gadsden barn. A stop of the Vega

revealed marijuana residue. A search warrant for the

barn was obtained, and marijuana discovered.

Without first attempting to obtain a warrant either

for the arrests of Acosta and Bosch or for the search of

their room and car, officers attempted to gain entry to

the motel room by announcing their identity as members

of the cleaning crew. When this rouse did not work, the

police announced themselves and arrested the occupants.

A search of Acosta’s room revealed money in an open

bag in an open closet, and drug-related documents on a

bureau. A search of Acosta’s Mercedes in the parking

lot of the Dutch Kitchen Motel revealed notebooks,

bale lists and other drug-related documents in the trunk.

After standing was conceded, Acosta’s Motion to Suppress

was denied.

Also in July, 1978, the “Captain Otis II” and the

“Geechee Boy II” were to offload at the Aucilla River

Fishcamp. The vessels were directed to return to Key

Wesi without offloading, where they were seized by

the United States Coast Guard and marijuana was

discovered.

In the Fall of 1978, the Cobb organization attempted

to move its base of operation out of Florida. For example,

attempts to offload in Savannah were twice thwarted

by law enforcement officials.

In addition, Brown, Reeves, Sellers, Bailey, and

Donald Crump located a hole in South Carolina, and

built a barn thereon. Due to the amount of law

enforcement activity in the area, the site was abandoned

without having been used.

On January 15, 1979, a DC-3 loaded with marijuana

was seized in Fort Lauderdale, Florida. When the pilot,

James McDonnell, became involved with a Constellation

aircraft, a beeper or transponder was secreted on the

plane by United States Customs.

James McDonnell was approached by Vic Simeone

and agreed to fly the Constellation from Miami to

Colombia. Upon re-entering the United States air space,

the Constellation was followed to North Florida by

Customs aircraft. Due to mechanical difficulties and

low ground fog, the Constellation was unable to land at

the designated landing point. Rather, it attempted to

land at the Panama City Airport, where it ran off the

runway, and got stuck in the mud. McDonnell, Charles

Mora, and Dennis Flynn were arrested. Although not

arrested, the awaiting offloading crew consisted in part

of Reeves, Brown, Bailey, Mattson and Crump; Acosta

was not involved.

At some time between April, 1979 and July, 1979,

Cobb, Acosta, Brown, Padgett, Jr., and MecMuilen

successfully offloaded the “Carol B” and the “Miss

Susan” at the fishcamp. In late 1980, Acosta, Brown,

McMullen and Cobb were involved with a successful

offload in the Florida Keys. And on February 26, 1981,

Acosta, Brown and Cobb attempted to import marijuana

on the “Miss Sunbury”. Upon the “Miss Sunbury”’s

being seized by officials, the crew, consisting of Eric

Hobwittle, Sergio Perez, Pedro Suden, and Jose

Rodriguez, was arrested.

After evidence was presented against Brown and

Padgett, on tax counts, the Government rested.

Defendants’ motions for judgment of acquittal were

denied. The Jury was instructed per the charge

conference; defendants’ objections and requests were

denied.

Guilty verdicts were returned and sentences imposed

as previously noted. Petitioners’ convictions and sentences

were affirmed by the United States Court of Appeals

for the Eleventh Circuit with the following exceptions:

As to Petitioner Draden Padgett, Jr., convictions and

sentences on Counts 24 and 25 were vacated; as to

Petitioner Jose Luis Acosta, convictions and sentences

on Counts 2 and 3 were vacated. This Petition for Writ

of Certiorari to the United States Supreme Court follows.

10

ARGUMENT

THE DEFENDANTS WERE DENIED THEIR

CONSTITUTIONAL RIGHT OF CONFRON-

TATION WHEN THE TRIAL COURT

PREVENTED ACCESS TO THE CHIEF

GOVERNMENT WITNESS’S TAX RETURNS

AND FINANCIAL INFORMATION.

_ 1. Cobb’s Evasive Testimony Concerning His

Financial Affairs Necessitated Acosta’s

Access To Records And Witnesses.

It was the defendants’ position at trial that the

chief government witness, Bill Cobb, was entitled as

part of his plea bargain with the government, to retain

substantial marijuana profits. It was in part for this

reason that the defendants sought information from

Cobb as to his financial and IRS records.

Cobb was evasive about his assets and those of his

family. He stated that, “I do not own anything”. When

asked about real estate in his wife’s name, he testified,

“I don't know all the real estate that my wife holds”,

although at the time they had been married three

years. When asked whether his wife held any property

in trust which had been purchased by him, Cobb

responded, “I have no trusts, sir”. When asked whether

his wife owned any assets whatsoever that Cobb had

paid for, Cobb responded by questioning whether his

wife was on trial. When asked the question by the

judge, Cobb replied, “I can’t answer that question”.

When counsel asked whether Cobb’s wife owned any

stocks, bonds, trust certificates or certificates of deposit

11

which he had purchased for her, the government objected

on the grounds that the question had been asked and

answered. The Court sustained the objection.

Cobb’s opaque answers pervaded his responses to

questions concerning his earnings from the drug business

and his financial condition. Since Cobb testified that

his agreement with the government permitted him to

retain assets acquired before approximately January

1, 1977, Cobb was asked what his approximate net

worth was on that date. He stated that he could not

even estimate the figure: “I told you, I refuse to guess”.

Cobb could not remember whether he had ever informed

the IRS what his net worth had been prior to entering

the drug business.

When asked whether his lawyers and accountant

would have records of his income, expenses and net

worth from January 1, 1977 through December 31,

1981, he replied that the IRS did a criminal investigation

on him from 1976 until 1981 and that he had received a

letter from the Service advising him that, “they couid

find no wrongdoing in any of my tax proceedings and

were ready to drop the case”. Cobb, although he

repeatedly testified that he owned nothing and was a

pauper, stated that he did not know his present net

worth because he didn’t have a financial statement.

When asked to estimate his present net worth, he

replied, “I refuse to guess that for you, sir’. When

asked again whether he had an estimate of his present

net worth, he answered, “If I did, I wouldn't give it to

you, sir”.

12

Cobb further testified that he never told the

government the amount of money he had made from

smuggling. He acknowledged, however, that the

government “told me what I had made and where it

was at . . . I saw the figures, I agreed to them, and

that was it.” When asked what the agents had shown

him, Cobb replied, “I don’t remember offhand, sir”.

Similarly, he couldn’t recall who had shown him the

figures he had been testifying about. When asked to

give the jury an idea whether he had made less than

ten million dollars from his smuggling, Cobb replied, “I

told you I couldn’t give you an idea, sir”. However, he

stated that he had reported and paid taxes on all of the

money he had made from smuggling.

2. Petitioners Were Entitled To Production

Of The Tax Information.

Petitioners proposed to prove that Cobb was in

reality the leader of this conspiracy and that, in return

for a “sweetheart” plea bargain, Cobb would falsely

swear as to the involvement of each defendant. To

prove this line of defense, the Petitioners needed Cobb's

tax returns and related documents, which, if honestly

prepared, would show the huge amounts of money

which Cobb had made from marijuana smuggling. By |

Cobb's own admission at trial, Cobb had made a

considerable fortune from his involvement in the

marijuana trade. His returns would, if honestly prepared,

show how large that fortune was and help guide the

jury in deciding Cobb's actual position in the conspiracy.

Alternatively, if these documents were not honestly

prepared and showed little or no income from his illicit

activities, Cobb’s motivation to falsely implicate the

13

Petitioners would be apparent to the Jury. By his

testimony, Cobb had received considerable income from

his illegal ventures. If his returns did not reflect this

income, his retention of thse concealed assets and exposure

to tax fraud charges would be a powerful inducement

for Cobb to please the government.

At the earlier related Sunburn I trial, the district

court recognized the significance of these documents

and ordered that they be turned over to the defense.

The prosecutors simply refused to comply with the

court’s order.

At Petitioners’ trial, the district court, apparently .

forgetting its earlier ruling, refused at every juncture

to order the disclosure of these documents. The court

denied requests for production under the Jencks Act,

18 U.S.C. §3500 and, alternatively, the authority of

Brady v. Maryland, 373 U.S. 83 (1963). Counsel then

subpoenaed these records from the Internal Revenue

Service and from Cobb’s accountant and attorneys.

The basis for the court’s denial of access to tr» xe

documents seemed to change at every juncture. Prin.»7.'\,

the court was of the view that these materials were

privileged under 26 U.S.C. §6103. In quashing subpoenas

to the IRS and to the Cobb accountant and attorneys,

the court ruled that these materials were privileged,

but the court also stated that he had reviewed the tax

returns for 1976, 1977 and 1978 and had found “nothing

impeaching” in those returns.

a. The requested documents were not

privileged.

14

In denying access to these important documents,

the district court relied principally on the ground that

26 U.S.C. §6103 made them privileged and generally

immune from disclosure. Section 6103 provides in

pertinent part:

(a) General rule.—Returns and return

information shall be confidential, and except

as authorized by this title —

(1) no officer or employee of the

United States,

* * *

shall disclose any return or return information

obtained by him in any manner in connection

with his service as such an officer or an employee

or otherwise or under the provisions of this

section.

It is important to distinguish at the outset between

tax return information in the hands of the taxpayer or

his agents and that same information in the hands of

the government. Section 6103 does not create a privilege

for such information wherit is held by the taxpayer or

his agents. At best, §6103 puts limits on governmental

disclosure, but it does not create a general privilege —

neither a privilege for the taxpayer nor a privilege for

the government.

i) Cobb had no privilege in the requested

documents.

15

Section 6103 makes tax return information

“confidential”, but it does not give the taxpayer a

privilege. St. Regis Paper Co. v. United States, 368

U.S. 208 (1961), illustrated the distinction between

privilege and confidentiality when it held that, although

census data may be “confidential” within the government,

it could be subpoenaed from the individual who originated

or complied the data and reported the data to the

government. Jd. at 217-219. The court specifically

analogized census data to tax returns, which it noted

are subject to discovery from the taxpayer. The court

contrasted §6103 with other statutes in which Congress

has exempted designated materials from service of

process and made them truly privileged. The court

emphasized: “Ours is the duty to avoid a construction

that would suppress otherwise competent evidence

unless the statute, strictly construed, requires such a

result”. Jd. at 218.

Income tax returns are almost routinely discoverable

in civil litigation. The courts have held that §6103 does

not make them privileged. Heathman v. United States

District Court, 503 F.2d 1032, 1035 (9th Cir. 1974).

Section 6103 did not make Cobb’s tax return

information privileged, nor did this information have a

privileged character when held by his accountant and

attorneys. Federal courts do not recognize an accountant-

client privilege. Couch v. United States, 409 U.S. 322.

335 (1973). Information conveyed to one’s accountant

for the preparation of tax returns is not privileged.

This type of information is not privileged even when

conveyed to an attorney, since the attorney is held to

be performing accounting services. The nature of the

service, not the title of the person performing it, is

16

dispositive. United States v. Lawless, 709 F.2e 485, 487

(7th Cir. 1983); United States v. Davis, 636 F.2d 1028,

1043 (5th Cir.), cert. denied, 454 U.S. 862 (1981).

The district court had no basis for concluding that

Cobb had a privilege in the subpoenaed materials. The

court's ruling was in direct conflict with St. Regis Paper,

supra, and the other authorities that have declared

that tax returns are non-privileged.

ii) The government had no privileges in the

requested documents.

Since this information was not privileged in the

hands of Cobb’s agents and thus should have been

discoverable, its production by the government personnel

might seem redundant. But disclosure by the government

was of more than academic interest to the Petitioners.

The information held by the government might have

been more complete, since Cobb and his agents were

under no duty to retain copies of what they submitted

to the IRS. Hence, Acosta had a right to disclosure in

response to his subpoena directed to the IRS.

Section 6103 does forbid disclosure of tax return

information by government employees except in

accordance with enumerated statutory exceptions. Under

a number of exceptions, government persennel may

disclose in order to supply information to prosecutors

who are seeking to convict a defendant. There is no

comparable provision that supplies information to a

defendant for use in his defense. The structure of §6103

makes the congressional intent obvious: the drafters

wanted to preserve the privacy and confidentiality of a

17

taxpayer’s return and associated documents, unless

the government needed this return to convict someone.

See, United States v. Mangan, 575 F.2d 32 (2d Cir.) cert.

denied, 439 U.S. 931 (1978).

If §6103 means what it says and gives a prosecutor

access to taxpayer return information, but deprives

defense counsel of access to such documents, the statute

is a denial of equal protection of law, a deprivation of

due process, and an impediment to a fair trial and the

right of confrontation.

[Slince the Government which prosecutes an

accused also has the duty to see that justice is

done, it is unconscionable to allow it to undertake

prosecution and then invoke its governmental

privileges to deprive the accused of anything

which might be material to his defense.

United States v. Reynolds, 345 U.S. 1, 12 (1953); see

also, United States v. Nixon, 418 U.S. 683, 711 (1974);

Rovario v. United States, 353 U.S. 53, 60-61 (1957).

Section 6103 can be saved from invalidation only if

this court enforces the “disclose-or-dismiss” doctrine.

The seminal opinion on the consequences of the

government’s assertion of privilege in a criminal case

is that of Judge Learned Hand in United States v.

Andolschek, 142 F.2d 503 (2d Cir. 1944). The defendants,

inspectors of the Alcohol Tax Unit, were charged with

a conspiracy to violate internal revenue laws. During

their employment by the Treasury Department, they

had prepared official reports which narrated their conduct

as inspectors. They sought to require the government

18

to provide them with these reports. The government,

citing a Treasury regulation, urged that the reports

were privileged, and the trial court agreed.

Judge Learned Hand opined:

So far as they [the documents] directly touch

the criminal dealings, the prosecution necessarily

ends any confidential character the documents

may possess; it must be conducted in the open,

and will lay bare their subject matter. The

government must choose; either it must leave

the transactions in the obscurity from which a

trial will draw them, or it must expose them

fully. Nor does it seem to us possible to draw

any line between documents whose contents

bear directly upon the criminal transactions,

and those which may be only indirectly relevant.

142 F.2d at 506. In Andolschek, the Treasury regulation

was ambiguous. The court, in reversing the convictions

of all defendants, concluded that the Treasury regulations

should be construed to allow production. There is no

comparable ambiguity in the statute sub judice. It is

clear; it is unequivocal: and, if applied in a criminal

prosecution, it is unconstitutional.

Six years after Andolschek was decided, Judge

Learned Hand and the Second Circuit again looked at

the problem. In United States v. Coplon, 185 F.2d 629

(2d Cir. 1950), government agents had installed wiretaps

and had prepared logs of the discs on which recordings

were made. The prosecutor excerpted conversations

from these recordings that imperiled national security.

The judge reviewed the original recordings and logs,

19

and held that Coplon should not have them. Again, the

Second Circuit reversed; it discussed its earlier holding

in Andolschek as follows:

In United States v. Andolschek we held that,

when the Government chose to prosecute an

individual for crime, it was not free to deny

him the right to meet the case made against

him by introducing relevant documents,

otherwise privileged. We said that the

prosecution must decide whether the public

prejudice of allowing the crime to go unpunished

was greater than the disclosure of such “state

secrets” as might be relevant to the defense.

[sic] To that we adhere.

185 F.2d at 638 {footnote omitted).

Andolschek has been cited with approval by the

Supreme Court. e.g. Dennis v. United States, 384 U.S.

855, 873 n.20 (1966); Rovario v. United States, supra, at

61 n.10, and has been extended to a number of contexts,

United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.

1971); People v. Ramistella, 306 N.Y. 379, 118 N.E.2d

566 (1954).

Once Cobb testified against the Petitioners, he

could not legitimately refuse to disclose information

pertinent to the Petitioners’ defense. This information

did not have a privileged character. Nor could the

government refuse to disclose the same information.

The district court’s ruling allowed the government to

withhold non-privileged information that would have

aided Acosta’s defense.

20

to Ve aN To nS AIOE AEA a SUE Oita RSs SI ser

Pe eee eer nn te ene One ton

b. The requested documents were relevant and

subject to defense subpoena.

Disclosure of Cobb’s tax return information was

litigated almost solely on the issue of privilege vel non.

In quashing the subpoenas, the district court relied

heavily on privilege, but also apparently rested on an

alternate ground:

It would appear that the subject matter of the

subpoenas is covered by the attorney client

privilege. Therefore, the subpoena will not be

enforced. I have reviewed in camera Cobb's

tax returns for the years 1976, 1977 and 1978,

and find that there is nothing impeaching

contained in the tax returns and therefore

their admission would be, or any examination

of them or their admission in evidence would

be denied as not being relevant to the case

under Rule 104 [sic].

Since Petitioners have not seen the requested

materials, it is impossible to meet this assertion on its

own grounds. Nonetheless, this alternate ruling was in

error. A subpoena may be quashed if it seeks irrelevant

material. United States v. Nixon, supra, at 699. But the

court has no authority to quash on its independent

judgment that the subpoenaed material is not helpful

to the accused. Only defense counsel can make that

judgment: “In our adversary system, it is enough for

judges to judge. The determination of what may be

useful to the defense can properly and effectively be

made only by an advocate.” Dennis v. United States,

supra, at 875. See, also Rovario v. United States, supra,

21

at 64. As long as there may be “the seeds of innocence”

in the requested material, it is material and relevant

and producible under subpoena. Gilmore uv. United States,

256 F.2d 565, 567 (5th Cir. 1958). Stated another way,

there need only be a “likelihood” of relevance. United

States v. Nixon, supra, at 700.

The court was not called upon to admit this material

into evidence. Instead, Petitioners sought possession

of this information so that they could urge on the court

their theory of admissibility. The limited nature of a

court’s authority to quash, properly understood, explains

why the accused may have a subpoena issue so long as

he “avers facts which, if true, would be relevant to any

issue in the case”. United States v. Hathcock, 441 F.2d

197, 199 (5th Cir. 1971), quoting Greenwell v. United

States, 317 F.2d 108, 110 (D.C. Cir. 1963); accord, United

States v. Moudy, 462 F.2d 414, 417-8 (5th Cir. 1968)

Petitioners constantly made such averments.

It must be remembered that the decision to quash

is made for the benefit of the person subpoenaed, to

relieve him from “unreasonable or oppressive” demands.

United States v. Nixon, supra, at 698; Fed.R.Crim.P.

17(c). Cobb’s representatives made no complaint that

the requested material was so voluminous that they

could bring it to court only with great difficulty. Cobb’s

only objection was his claim of privilege. With that

claim correctly rejected, the district court would have

had no stake in denying these materials to Acosta.

The dispositive issue in this dispute was privilege.

That issue should not be obscured by the district court’s

erroneous characterization of the nature of the materials.

22

a ae | |

Aede WN LID Sense «Moone

Ok i ne ss Ni

|

As the court correctly recognized in the Sunburn I

trial, without even seeing the documents, Cobb’s income

tax returns were material and relevant.

c. The requested documents were producible

under the Jencks Act.

Alternatively, these documents should have been

produced under the Jencks Act no later than the close

of Cobb’s direct testimony. In denying production, the

district court relied exclusively on its understanding of

United Staies v. Carrillo, 561 F.2d 1125, 1128 (5th Cir.

1977). The district court read Carrillo to say that income

tax returns are never, under any circumstances, a prior

“statement” of the witness. The district court denied

production without even examining the tax returns,

even though Cobb had testified that he believed them

to be truthful and accurate.

It is submitted that Carrillo did not set up a per se

rule on tax returns and that, had it attemped to do so,

its rule would be a patent misconstruction of the statutory

language.

Carrillo’s treatment of the issue is so terse that it

is difficult to determine the exact basis of its holding.

However, Carrillo did state that the Fifth Circuit was

reluctant to upset a finding of fact on the Jencks Act

character of requested material, unless that finding of

fact was “clearly erroneous”. Jd. at 1128. Unless this

statement is a non sequitur, the court was recognizing

that the district court in Carrillo had examined the tax

returns in question and had found them not to be

“statements” as that term is used in the Jencks Act.

23

This ruling is much different from a holding that tax

returns can never be Jencks Act material, as held by

the district court in this case.

Nor would such a per se rule accord with the

statutory definition of “statement” found in 18 U.S.C.

§3500(e)(1) and Fed.R.Crim.P. 26.2(f)(1): ‘‘a written

statement made by the witness and signed or otherwise

adopted or approved by him.” As long as the taxpayer

reads and signs the return, it is a writing that has been

signed and approved by the witness. For all that is

known about the tax returns in Carrillo, they may have

been signed before the forms were compieted, or they

may have been signed without any examination to

determine their correctness, or they may have been

signed only by the preparer.

In this case, Cobb admitted that the returns were

true and correct. Without examining those returns, as

the court was obliged to do, United States v. Conroy,

589 F.2d 1258, 1272-3, (5th Cir.), cert. denied, 444 U.C.

831 (1979), the district court determined that they were

not Jencks Act material. The court’s ruling that tax

returns, by their nature, can never be Jencks Act

material is a novel and incorrect per se rule that has no

support in Carrillo.

d. The requested documents were

Brady material.

The district court also ruled that the requested

documents were not Brady material. This ruling was

not founded on an in camera review of the specific

documents. Instead, the district court read Carillo to

24

say that if material is not producible under the Jencks

Act, it is equally non-producible under Brady. The court

ruled on a question of law; it did not make an independent

review of the materials for exculpatory evidence. The

district court’s error lies in its taking out of context a

statement in Palermo v. United States, 360 U.S. 343,

351 (1959): “[S}tatements of a government witness made

to an agent of the Government which cannot be produced

under the terms of 18 U.S.C. §3500 cannot be produced

at all.”

The context of Palermo reveals the error of the

district court’s ruling. Palermo sought notes of an agent’s

interview with a key government witness for

impeachment purposes. The lower courts had ruled

that these notes were not, as required by §3500(e)(2), “a

substantially verbatim recital” of the interview. Palermo

argued that the Act, by regulating the production of

substantially verbatim statements (and also signed

statements) was not intended to regulate the production

of statements that were neither substantially verbatim

nor signed by the interviewee. The court rejected this

argument, emphasizing the unfairness that would result

in using fragmentary notes of third parties for

impeachment purposes. The court did not believe that

Congress intended to foster this unfairness by allowing

the defense to use fragmentary reports for impeachment

purposes. There was no claim and certainly no finding

in Palermo that the fragmentary notes contained

exculpatory materials.

Since Palermo, the Supreme Court has decided

Brady, Giglio v. United States, 405 U.S. 150 (1972), and

United States v. Agurs, 427 U.S. 97 (1976). These cases

have established the defendant’s constitutional right

25

to exculpatory evidence that the government has in its

possession.

None of these cases has suggested that the contours

of the Brady doctrine were congruent with the Jencks

Act, nor has it been suggested that a compliance with

the Jencks Act would serve as compliance with Brady.

For example, it would be illogical and absurd to hold

that, as long as the witness who had knowledge of the

exculpatory evidence was not calied at trial, there was

no requirement to disclose the exculpatory evidence

within that witness’ knowledge. Yet, this would result

from a theory that the Jencks Act and Brady doctrine

covered the same ground, for, if a witness has not

completed direct examination, there is no obligation

under 18 U.S.C. §3500 to produce that person’s statement.

In fact, the courts have recognized that the Jencks

Act and Brady are independent bases of disclosure.

Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir.

1980); United States v. Bernard, 607 F.2d 1257, 1263

(9th Cir. 1979). See, also, United States v. Griggs, 713

F.2d 672 (11th Cir. 1983); United States v. Bensabat,

568 F.2d 1226 (5th Cir.), cert. denied, 436 U.S. 927

(1978).

It is often argued that Brady does not require

production of material that is also Jencks material

prior to the time production is required by the Jencks

Act, and Petitioners take no issue with that. However,

it simply is not true that Brady material and Jencks

Act material are synonymous:

26

The Brady rule applies to the production of

evidence, and not to “statements” or “reports”

as does the Jencks Act, 18 U.S.C. §3500.

Therefore, simply because the document

containing the prosecutor’s notes may not have

been discoverable under the Jencks Act because

it was not a “statement” or “report”, it does

not follow as North Carolina argues, that its

failure to disclose the amended statement did

not violate Brady.

Chavis v. North Carolina, 637 F.2d at 223 (emphasis in

original) (footnote omitted).

The district court’s ruling on Brady was in error,

and the requested materials should have been produced.

Without these materials, the Petitioners were limited

to Cobb’s fanciful statements about his tax liabilities

and net worth. In a court of law, self-serving nature of

these statements was no substitute for the actual

documents. With these documents suppressed, Cobb

had license to say whatever he wished about his tax

situation.

3. The Court Erred In Refusing To Order That

Counsel Be Furnished With Cobb’s Statements

And Refused To Examine Them In Camera.

Counsel for Acosta attempted to cross-examine

the government's two principal witnesses, Abbey and

Cobb, concerning the number of times they had been

interviewed by federal agents, the circumstances of

these interviews, the subjects about which they had

been questioned, and the existence of notes and reports

concerning the information they had provided.

27

Periodically, as testimony was developed establishing

interviews concerning the subject of the witness’ direct

examinations, counsei moved that he be furnished with

all notes, reports and memoranda of these interviews,

or in the alternative, that they be examined by the

court in camera to determine whether they constituted

statements under the Jencks Act or exculpatory evidence

within the holdings of Brady or Giglio.

4. The Petitioners Were Denied Their Right

Of Confrontation Based Upon The Non-

Production Of Said Tax Records.

Since the information sought by the Petitioners

was relevant to their defense and to the impeachment

of the government's chief witness, Bill Cobb, and since

said records were producible under both the Jencks

Act and as Brady information, and were not privileged,

Petitioners would respectfully submit that they were

denied their right of confrontation under the Sixth

Amendment to the United States Constitution based

upon said non-production. Petitioners seek this Honorable

Court to accept jurisdiction in order to preserve said

rights of confrontation.

28

CONCLUSION

For the above reasons and authorities cited herein,

it is respectfully requested that this Honorable Court

grant its Writ of Certiorari and enter its Order quashing

the decision hereby sought to be reviewed and grant

such other and further relief as seems right and

appropriate to this Court.

Respectfully submitted,

ALVIN B. ENTIN, ESQ.

ENTIN, SCHWARTZ,

SCLAFANI & CULLEN

1500 Northeast 162nd Street

North Miami Beach, Florida 33162

Telephone: (Dade) (305) 944-6556

(Broward) (305) 921-6556

29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing has been furnished by U.S. Mail tothe

Office of the Solicitor General, Department of Justice,

Washington, D.C. 20530, this __ day of ‘

1986.

ALVIN E. ENTIN, ESQ.

ENTIN, SCHWARTZ,

SCLAFANI & CULLEN

' 1500 Northeast 162nd Street

North Miami Beach, Florida 33162

Telephone: (Dade) (305) 944-6556

(Broward) (305) 921-6556

30

Appendix

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 83-3045

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOSE LUIS ACOSTA, DRADEN H. PADGETT, JR., JOSEPH

ARON BROWN, WILLIAM E. BROWN, ODIS

McMULLEN, THOMAS E. LEE, JOSEPH H. PADGETT

and CHARLES DOUGLAS STRICKLAND,

Defendants-A ppellants.

Appeals from the United States District Court for the

Northern District of Florida

(August 12, 1985)

Before GODBOLD, Chief Judge, HATCHETT, Circuit

Judge, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

The only issue meriting discussion is whether the

confrontation clause of the Constitution was violated

by the court’s refusal to order production of tax returns

and other financial information concerning government

witness Cobb and, if it was, whether this invalidates

the conviction of appellant Acosta.

App. 1

Acosta contends he was entitled to this material

to impeach Cobbs’ testimony that Acosta was the

ringleader in the conspiracy. He sought the material

under the Jencks Act, under Brady v. Maryland, 373

U.S. 83 (1963) and by subpoenaes to the witness, his

accountants, and the Internal Revenue Service. The

court examined tax returns for three years in camera

and stated that it found “nothing impeaching in them.”

Assuming that Acosta was entitled to the material,

the denial of access to it was harmless error beyond

reasonable doubt. A violation of the confrontation clause |

can be harmless beyond reasonable doubt. Bowden v.

Francis, 733 F.2d 740, 757 (11th Cir. 1984); Demps v.

Wainwright, 666 F.2d 224, 226 (5th Cir. 1982) (Unit B).

At least seven witnesses other than Cobb gave testimony

tending to show Acosta’s role as leader of the conspiracy.’

‘Thomas Abbey, 13 Rec 529-31; James Seliers, 16 Rec. 1383-84;

1406; Carlton Reeves, 16 Rec. 1489, 1505-06, 1548; James Lee

Bailey, 18 Rec. 1965, 1980; Vernon Mattson, 18 Rec. 2162; Alex

Guriak, Jr., 18 Rec. 2203; Alfred Vadney, 19 Rec. 2337.

App. 2

All other issues raised by all appellants have been

considered. None has any merit.’

The convictions of all defendants are AFFIRMED.

“We have accepted and considered fully the brief of Acosta,

and all points raised by Acosta, despite the hyperbolic, overblown

and discourteous tone of his brief. An advocate can firmly identify

errors and engage in hard-hitting advocacy without resorting to

insults. Counsel, possibly unaware of the standards expected of

counsel in this court, accuses the district court and the government,

among other things of:

—the court of “systematically depriving” Acosta of a fair

trial.

—the court of “creatjing] new law at every turn” in order to

deny proper cross-examination by Acosta.

—the court of “allow[ing] the government to lie to the jury.”

—the government of refusing to seek immunity for a witness

because of “a cynical desire to deny Acosta a witness and

thereby skew the fact-finding process.”

—the government of telling a witness to go into hiding or

aiding or abetting the witness in her effort to hide [neither

assertion is supported by the record].

App. 3

[FILED JAN 08 1986]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 83-3045

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOSE LUIS ACOSTA, DRADEN H. PADGETT, JR., JOSEPH

ARON BROWN, WILLIAM E. BROWN, ODIS

McMULLEN, THOMAS E. LEE, JOSEPH H. PADGETT

and CHARLES DOUGLAS STRICKLAND,

Defendants-A ppellants.

Appeals from the United States District Court for the

Northern District of Florida

(January 8, 1986)

ON PETITIONS FOR REHEARING

Before GODBOLD, Chief Judge, HATCHETT, Circuit

Judge, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

By petitions for rehearing appellants Charles Douglas

Strickland and Draden Padgett, Jr. have called to our

attention that in brief and at oral argument the United

States conceded that there was insufficient evidence to

App. 4

support their convictions under counts 24 and 25. We

can find no such concession with respect to appellant

Thomas E. Lee, but the factual situation for him is

consistent with that of Strickland and Padgett, Jr.

The convictions of these three appellants on counts

24 and 25 are, therefore, VACATED.

By petition for rehearing appellant Jose Luis Acosta

has called our attention that in brief and oral argument

the United States has stated that it does not oppose

vacation of his convictions and sentences on counts 2

and 3 as long as his conviction on count 1 is upheld. See

Jeffers v. U.S., 482 U.S. 187 (1977) and U.S. v. Graziano,

70 F.2d 691, 699 (11th Cir. 1983). Acosta’s conviction on

count 1 having been upheld, his convictions and sentences

on counts 2 and 3 are VACATED.

Except as above set out, the petitions for rehearing

of Jose Luis Acosta, Draden H. Padgett, Jr., Joseph

Aron Brown, Odis McMullen, Thomas E. Lee, and Charles

Douglas Strickland are DENIED.

GRANTED in part and DENIED in part.