Petition for Writ of Certiorari — Mirrer v. Inham

Supreme Court brief1987

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AUG 4 jog7

No. YOSEPH F. SPANIOL, JR

CLERK

| waere

IN THE

Supreme Court of the United States

OcToBER TERM, 1986

RAYMOND MIRRER,

Petitioner,

—vs. —

QUASLIM INHAM, Warden, North Facility,

Department of Correction,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RAYMOND MIRRER

Petitioner, Pro Se

320 East 46th Street

New York, New York 10017

(212) 661-5770

QUESTION PRESENTED

Is petitioner, claiming that the trial evidence proved

his innocence, entitled to a Writ if Habeas Corpus to set

aside a New York State Court conviction due to ineffective

assistance of counsel whose acts and omissions fell below

an objective standard of reasonableness and whose

deficient performance caused an unjust result?

TABLE OF CONTENTS

Question Presented . . . . 1. 2+ 2+ ee cereceel

a a a ee a ee ae a ||

Tees Gt Amterities. «2 ct tt ttt ttt te WY

es ee ee ee ee a ee

Constitutional Provision Involved ........ V

Dy 5 so 6 se tp esc sc es eveve |

ee ee ee ee ee ee

Statement of the Case.

Arguments

POINT I

THE CONVICTION OF A LAWYER, AN

INNOCENT VICTIM OF A CLIENT SCAM,

MUST BE REVERSED UPON A SHOWING

THAT UNPROFESSIONAL ERRORS '- OF

COUNSEL RESULTED IN A FAILURE OF THE

JURY TO FIND REASONABLE DOUBT AS TO

GUILT ON ALLCHARGES ......... 8

POINT I

A WRIT OF HABEAS CORPUS MUST BE

GRANTED UPON A SHOWING OF

INNOCENCE AND THAT DEFENSE

COUNSEL'S ACTS OF OMISSION AND

PERFORMANCE FELL BELOW AN OBJECTIVE

STANDARD OF REASONABLELESS,

PRODUCING AN UNJUST RESULT...... 22

i ae le S's ow so

ili

Page No.

Appendix

Order denying Motion for Reconsideration,

fame, 1997 «seo 2

Order denying Petition for Rehearing

March 24,1987... . 3a

Order of Second Circuit Court of Avpeals

affirming judgment of District Court

November 25,1986 .. 5a

Letter, dated April 10, 1987, from

Overations Manager, Second Circuit,

advising that Chief Judge Wilfred

Feinberg authorized the original panel to

review its findings ....+4+++e2-e 118

Letter, dated April 2, 1987, from Petitioner

to Chief Judge Wilfred Feinberg

requesting reconsideration of Petition for

Rehesfimg «2s es eo ee ee ew oh 8 oe hee

Opinion of Judge Leonard B. Sand,

District Court, Southern District of

New York, denying Petition for

‘Nrit of Habeas Corpus

June 20,1986. ... .2la

Judgment of Conviction, Supreme

Court, County and State of New York,

April 19, 1983 with sentencing on

, de eee ee ee ee ae ee eee ee ee

Letter from Jeffrey Traub, Esa.,

dated, November 23, 1981,

acknowledging that prosecutor

failed to provide evidence to justify

indictment of Petitioner. ....... .97a

TABLE OF AUTHORITIES

Cases “ited

Cuvler v. Sullivan, 446 U.S. 335,

347 (1984)

Donnelly v. DeChristoforo, 416 U.S. 637

645 (1979)

Jackson v. Virginia, 443 U.S. 335,

347 (1984)

Kuhlmann v. Wilson, 91 L Ed 2d 364 (1986) .

“teShall v. Henderson, 526 F.Supp. 158, 161

(S.D.N.Y. 1981)

Peonle v. Worthv, 492 N.Y.S.2d 423

(A.D.2d Dept 1985)

Strickland v. ‘Vashington, 466 U.S. 668,

§88, $92 (1984)

"Yilson v. Henderson, 742 F 2d 741 ‘1984).

Wilson v. Henderson, 584 F 2d 1135 /1978)

Wright v. Wainwright, 537 F.2d,

226 (5th Cir. 1976)

U.S. CONSTITUTION

Sixth Amendment

Page No.

13, 23, 27a

13, 30a

§la

3, 30

THE PARTIES

Raymond Mirrer, acting Pro Se, is the Petitioner.

Quaslim Inham, Warden, North Facility, Department

of Correction, is the Respondent. He is represented by

The People of the State of New York by Robert ™.

Morgenthau, District Attorney, County of New York, by

ADA Donald J. Siewert, Of Counsel.

CONSTITUTIONAL PROVISION INVOLVED

Sixth Amendment of the United States Constitution.

Petitioner was denied an adequate defense due to a

conflict of interest of counsel and_ ineffective

representation.

OPINION BELOW

The Second Circuit Court of Appeals affirmed an

Opinion of the District Court for the Southern District of

New York by Judge Leonard B. Sand on November 25, 1986

which denied a Writ of Habeas Corpus to set aside a New

York State Court conviction, using reasoning not supported

by the evidence and overlooking and/or ignoring the

"omission" test of Strickland v. Washington, 466 U.S. 668-

695 (1984).

JURISDICTION

The jurisdiction of the Federal Court is invoked

under 28 U.S.C. 2254, alleging unlawful custody pursuant to

a New York State judgment of conviction whereby

petitioner's Sixth Amendment federal constitutional rights

were violated. The District Court for the Southern

District of New York entertained jurisdiction and denied

the application for a Writ of Habeas Corpus, filed on

September 2, 1985, by an Order entered on June 20, 1986

with the issuance of certificate of probable cause to

appeal. The appeal was heard by the Second Circuit and a

decision affirming the judgment of the District Court was

filed on November 25, 1986. A Petition for Rehearing In

Bane was denied on March 24, 1987. Following direct

communication with the Chief Judge (lla-20a), a Motion for

Reconsideration, was re-assigned to the original panel and

was denied on June 5, 1987, making this filing timely. This

Ceurt has jurisdiction under 28 U.S.C. Section 1254(1) as

petitioner is seeking review of an Order issued by the

United States Court of Appeals for the Second Circuit.

STATEMENT OF THE CASE

On January 18, 1982, petitioner and five co-

defendants, Richard Firestone, “Milton Dorison, Peter

Gettinger, Herman Friedman and Albert Wahl, were

charged- by the New York County grand jury with five

crimes, as follows: (1) conspiracy to commit three

felonies, (2) Violation of Section 352-c of the General

Business Law, known as the Martin Act pertaining to State

laws regarding the issuance of securities, (3) the felonv of

scheme to defraud, ‘4) the felony of offering 4 false

instrument for filing ‘New York State tax returns) and (5)

the felony of grand larceny.

Firestone, Dorison and Gettinger, the three

perpetrators of crimes for which six were charged, were

convicted of all crimes. Petitioner, a practicing attorney,

was convicted of conspiracy, violation of the State

securities laws, both misdemeanors, and filing false New

York State tax returns, a felony which led to disbarment.

Petitioner was independent and previously unknown to the

other defendants. Since his law firm was retained as tax

counsel for coal tax shelters programs, the Courts

mistakenly reasoned that the tax lawyer was an integral

part of a fraud. Friedman, who was convicted of the two

most serious felonies, for which petitioner, an independent

professional, was acquitted, was given mere probation

while petitioner, a legal practitioner who did not conspire

with anyone, was treated harshly, being given a six months

jail term plus 4-1/2 years probation, including 10 hours per

week of community service (95a). The actual fraud was in

misuse of funds by Firestone, Dorison and Gettinger, not

fraudulent tax shelter programs and not fraud by petitioner

who was unlawfully indicted and grossly mistreated.

The trial began on January 17, 1983 and a verdict

was rendered on April 19, 1983. Sentencing took place on

June 10, 1983. Petitioner was hauled off to jail on August

14, 1985, without prior warning, after a post-appeal motion

was denied, complaining of ineffectiveness of defense

counsel, John Wall. He was incarcerated until December

13, 1985 and commenced the period of probation. The

People of the State of New York improperly charged that

each of the defendants, including the tax lawyer, conspired

to sell fraudulent tax shelters and were engaged in a

massive tax and securities fraud wherebv millions of

dollars were skimmed away by hidden promoters. The

thrust of petitioner's prayer for relief and the need for

certiorari is that the skimming vas done by the top three

defendants, not petitioner, an innocent victim, who

committed no crime and lost money on the engagement.

Evidence showed that coal tax shelters had wide

acceptance amongst tax attorneys and certified public

accountants who sold these shelters directly to their

clients. At about June, 1979, Firestone and Dorison sold

their interests and certain assets in tax shelter matters to

International Venture Capital, Ltd. ("IVC", headed by

Gettinger, a lawyer, who represented a wealthy German

conglomerate, Dr. Amann, GmbH, headquartered in

Cologne, Germany. The two negotiating parties each

engaged prestigious law firms to prepare necessary

documentation for a sale of assets plus non-compete

agreements, amounting to $10 million, to be divided

between Firestone and Dorison, payable in 60 months.

Unbeknown to petitioner, evidence came out during the

trial that Dr. Amann did not make any equity investment in

IVC but was loaned $150,000 by Firestone and Dorison

which sum was repaid from money raised through the sale

of limited partnerships. Also, $4 million of approximately

$5.5 million which had been paid by respective

partnerships as advance royalty payments for coal mining

rights was paid to Firestone and Dorison. Since the money

was, indirectly, investor proceeds and Firestone and

Dorison received more than 10% of funds raised, unknown

to petitioner, they could be construed as being promoters

of the IVC programs with disclosure being necessary.

Petitioner was held responsible for deliberately concealing

the participation of Firestone and Dorison, due to the

deficient performance and conflict of interest of Wall

The State Appellate Division, First Department,

which heard the State appeal on May 17, 1985, involving

over 10,000 pages of trial transcript, unanimously

affirmed the convictions of all the appellants, without

opinion, rendering its decision quickly on June 25, 1985.

The Court, focusing on a misunderstanding of the tax

shelters and ignoring the weight of evidence as to the fraud

of only three defendants, stated reckessly as to all

defendants that, "They" falsely represented to investors

that the programs would mine large amounts of coal,

entitling the investors to substantial tax deductions which

were actually invalid." The Court lumped petitioner with

the other defendants, improperly claiming that everyone

lied, notwithstanding that there was never any guarantee

that large amounts of coal would be mined and that large

tax deductions were assured. The Court erroneously stated

that there was no possibility of mining coal because only

five per cent (5%) of investor proceeds was allocated "as

working capital with which to mine coal" Vioney was

raised to acquire leases with the right to mine, not to mine

coal which was to be left to independent contract miners

who were ready, willing and anxious to mine for the

partnerships during a neriod of high demand for coal

Certiorari is mandated in this case because of a

complete breakdown of justice in the County and Southern

District of New York and the Second Circuit. A May 16,

1983 article, headed, "The Discreet Power of Robert

Morgenthau" (the Manhattan, New York District Attorney),

Stated that "..he can make and break Judges". Mr.

Morgenthau was able to acquire and spend several million

dollars of federal funds allocated for the Leviticus project

by converting a simple fraud case to an allegedly tax

shelter swindle by naming petitioner, the tax lawyer, as a

defendant and, due to the power of Mr. Morgenthau,

petitioner was denied due process at every juncture.

During pre-trial proceedings, petitioner was treated with

indifference and insolence, notwithstanding that there was

no proof that this lawyer, with an unblemished record, had

any knowledge or intent to engage in criminal conduct

(97a). The lower Courts ignored the fact that petitioner

was the only one of six defendants who appeared before the

District Attorney staff members to answer questions, and

having been advised that he was a "target", without giving

reasons, he voluntarily appeared before the grand jury,

waiving immunitv. He was grossly mistreated and

frequently cut off. Likewise, juror questions were cut off.

The jurors specifically requested that he return at a later

date to answer questions, to which he agreed, but the

indictment was railroaded though the grand jury without a

further appearance. The trial was completely unfair as to

petitioner who was assumed to be guilty, without evidence,

being treated as a criminal and denied constitutional rights

at all stages of judicial proceedings. Such miscarriage of

justice requires that this Court grant a ‘vrit

of Certiorari, particulary where a clear showing of

innocence is made.

POINT I

THE CONVICTION OF A LAWYER, AN INNOCENT

VICTIM OF A CLIENT SCAM, MUST BE

REVERSED UPON A SHOWING THAT

UNPROFESSIONAL ERRORS OF COUNSEL

RESULTED IN A FAILURE OF THE JURY TO FIND

REASONABLE DOUBT AS TO GUILT ON ALL

CHARGES.

Judge Sand, relying upon respondent's false

representations, and giving wrong reasons, concluded that,

"...this Court finds that there was sufficient evidence

presented from which rational jurors could find the mental

evidence of petitioner's bad faith." Further, the Court

stated, "...there was sufficient evidence of petitioner's

criminal intent to support a verdict which could not

conceivably have been affected by Wall's casting total

blame on _ petitioner's co-defendants." and _ further,

"Petitioner was indicted along with his co-defendants for

joint participation in the same -rubie of criminal

conduct;...". The Court ignored that the role of petitioner

was different than the others and that he was acquitted of

fraud in a fraud case. The District Court gave six examples

of petitioner's alleged bad faith, as follows (28a-3la):

1. That petitioner misrepresented his own expertise

in the tax and securities area and (2) misrepresented the

size and nature of his law firm. This is false. The

prosecutor elicited testimony that petitioner had done no

tax or securities work for a former employer and implied,

by innuendo, that statements made to a General Partner of

the IVC programs as to tax and securities experience was

misrpresentation. Petitioner had exceptional credentials,

having been a licensed Professional Engineer ("P.E.") since

1954, a Member of the New York Bar since 1957, a

Certified Public Accountant since 1975 and the holder of a

Master of Business Administration degree from New York

University, majoring in tax and finance, awarded in 1962.

He had extensive experience in corporate law matters,

including tax and securities work. In response to Example

2, during a time that law firms were attempting to expand

nationally, in 1978, one year before becoming involved in

the IVC. tax shelter programs, petitioner made

arrangements with out-of-town attorneys to place their

names and addresses on petitioner's law firm letterhead. It

was made clear that they were "Of Counsel" and the

offices were their offices. The jury was convinced that

petitioner had no intent to defraud, thus, there was no

sound reason for Judge Sand to have mentioned this issue.

3. That petitioner specifically determined that an

alleged misleading statement, Risk Factor 13, be included

in the placement memoranda. This was the work product of

the client, prepared by independent securities counsel for

the 1977 and 1978 programs and was intended to inform, not

mislead, as to the lack of mining with respect to programs

previously marketed by Major Management Corp.

("MMC"). The client, being a new entity, had no prior

history. Petitioner included a new Risk Factor 13 for the

1980 programs which outlined that no mining had taken

place for any of the 1979 programs. This is a tvpical

example of good faith. The effect of the original Risk

Factor 13, of which petitioner had no control, was greatly

exaggerated.

4. The testimony of Prof. Boris Bittker, a teacher

from Yale University, not a legal oractitioner, who

testified as respondent's tax expert, without fee and

without having done enough work. He was only one of 56

witnesses who spoke unfavorably against the IVC tax

shelters. He called them "abusive", not fraudulent, and he

never mentioned Virrer's name. He admitted under cross-

examination that he never visited the coal properties and

did not review any pertinent leases and documents, merely

having read the Offering Memorandum. He admitted to

having made a gross error in comouting the royalty

pavment, leading to his conclusion of abusiveness. He

missed clear language that the coal lease rental of $2 per

acre was Dayable before mining and he failed to calculate

that the rent was changed to a royalty of $2 per ton during

mining, thus, greatly reducing the differential in what IVC

paid as a lease payment and the amount of rovalty paid by

each partnership to IVC (Judge Sand mistakenly referred to

a royalty of $3.00 per year per acre) {29a). Prof. Bittker

also testified that no responsible and competent tax

practitioner would have agreed to render a tax opinion of

the IVC pograms but his testimonv was rebutted bv Paul

Goldberg, an experienced tax shelter lawver who testified

that the IVC tax shelter was structured within reason; that

the programs had votential for sucecess and that the tax

opinion was within acceptable guidelines. Four other law

firms, acting in a professional capacity, had previously

rendered similar tax opinions, thus, completely negating

the credibility of Prof. Bittker's highly bias contentions.

3. Petitioner was erroneously faulted for not

disclosing that Firestone and Dorison were promoters. He

"was unaware that each were to receive more than 10% of

the proceeds and he was advised by the client and

independent counsel that disclosure was not necessary.

Evidence showed that legal advice was sought on this

matter and that there was no deliberate attempt by

petitioner to conceal their names, a fact which should have

been made clear to the jury bv deficient defense counsel

who avoided mentioning, due to his conflict of interest,

that the actual fraud in this case was the skimming of

investor proceeds bv Firestone and Dorison, without

knowledge of petitioner.

§. Judge Sand unjustlv speculated that netitioner

had an apparent drive to form and sustain an alliance with

Firestone, jeopardizing his integrity. Firestone dealt with

many law firms and appeared to be a valuable resource.

Petitioner had disagreements with him after being retained

by Gettinger, representing IVC, the xuecessor firm, 4s

shown by a bitter exchange of letters, in evidence,

pertaining to caution and delays of the Virrer law firm in

issuing tax opinions due to lack of adequate documentation.

An ultimate law suit followed, naming Firestone and others

as parties, thus, the relationship with Firestone was

completely opposite as improperly reasoned by Judge Sand.

The foregoing examples, misdemeanor elements, if

true, but which were completely false, led Judge Sand to

erroneously claim that "...a rational trier of fact would

have found beyond a reasonable doubt that"..the above

factors, ..."ecoupled with other evidence adduced at trial",

"...petitioner intentionally aided investors in filing state

tax returns claiming invalid deductions with the intent to

defraud the state and that he agreed with at least one

other person to engage in or cause performance of

felonious conduct." Judge Sand further stated that a

conviction will stand "as long as any competent evidence

went to the factfinders from which thev could infer cuilt

beyond a reasonable doubt." MecShall v. Henderson, 526 F.

Supp, 158, 161 (S.D.N.Y., 1981) (citing Jackson v. Virginia,

443 U. S. 307,309 (1979). In actual fact, there was no

testimony of petitioner conspiring with anvone to engage in

felonious conduct or an intent to mislead. Judge Sand

stated, "as respondent notes", not refering to evidence, in

improperly claiming a showing of "bad faith" (28a).

Petitioner had complained, questioning the basis for

the indictment, while appearing before Judge Benjamin

Altman during ore-trial proceedings that he did not

understand the charges and requested a conference. He

stated, "I'd like to have a clarification from the Court as

to the Court's understanding of the charges", to which

Judge Altman responded, "I don't have to make any

clarification". Thus, petitioner was forced to go through a

lenthy joint trial, after a pre-trial motion for a severance

was denied, with defendants who lied to and cheated him

and with whom the trial Court admitted during trial, "I

anticipate Mr. Mirrer's defense, if there is a defense, will

certainly be antagonistic to two or three of the

defendants." (T 3933-4). That prediction proved wrong.

Judge Sand inadvertently stated that, "Petitioner points to

nothing what was essentially his "due diligence"

defense...as antagonistic to the defenses of his co-

defendants" {66a), acknowledging unprofessional error, and

reaffirming the effect of a conflict of interest, wherebv

Wall, to the detriment and prejudice of Mirrer, did not use

the antagonistic defense, a major blunder that was

overlooked by the District and Circuit Courts. Judge Sand

affronted petitioner in erroneously concluding that Mirrer

did not demonstrate that he suffered "substantial

prejudice" from the joint trial (62a), considering that the

prosecutor made remarks to the jury that all of the

defendants were invoived in a "swindle" and they "set traps

for the investors" (Tr. 9638,9639,9640), none of which

applied to petitioner. The following grounds are adequate

for concluding that that Wall's performance fell below an

acceptable standard:

1. Wall was not Mirrer’s free choice,

despite the convoluted conclusions reached by respondent

and the lower Courts. Wall was selected by Dorison's

counsel after Firestone and Dorison agreed to pav his fee.

Wall was interviewed by Mirrer in Boston during November,

1982. While Wall agreed to take the assignment, he did no

work because there was a delay in the payment of money

until literally the eve of trial, to the prejudice of Mirrer.

Judge Sand speculated that, "It is conceivable that ‘Yall

began gathering information before his compensation was

agreed upon.." (5la) but the Circuit Court ignored excerpts

from the transcript produced in the appeal brief that

showed Wall admitted to have done no meaningful

preparation, except to have read Mirrer's voluntary grand

jury statement. ‘While Wall stated that he would be

adequately prepared, his gamble of waiting till trial time

backfired when he slipped on ice during an early stage of

the trial, severely injuring his hip and breaking two ribs.

He admitted to being under heavy medication due to

extreme pain. During jury deliberations, wherein the jurv

requested on two occasions the re-reading of testimony

which was favorable to Mirrer, he was very slow in

checking the applicable pages, advising the Court that he

was tired and exhausted and not feeling well for a

prolonged period of time. This had effected his

preparation for the jury summation and the actual delivery.

2. Wall antagonized the trial Judge and the

jury with his constant objections and outbursts, admitting

during summation that "my style and tactics have been

somewhat different than all of the other defense lawvers."

and apologizing that, "I hope..that nothing that I've done or

failed to do will cause you to be bias or prejudice(d)

again(st) Raymond Mirrer" (T 9372). Wall also remarked

about the applause and cheers of the jurors, which was

really an outburst of a sigh of relief, when ‘Vall advised

that he would not object to the introduction of a particular

document. The prosecutor was so upset with ‘all's tactics

that he called him, loud enough for him to hear, an

“outragious asshole" (T 5880) Wall admitted during

summation, "My clumsiness and abrasiveness may have

been poorly executed." (T 9374-5). This is conclusive

evidence that Wall did not perform to a standard of

resonableness. Such characterizations, to which petitioner

agreed, showed that Wall lacked mental agility as

petitioner had complained to Judge Altman in a post-trial

motion. Such motion was made, Pro Se, because ‘all

abandoned Mirrer after trial as another one of the many

incidents of unprofessional performance. He appeared

during sentencing due to a direct order from Judge Altman.

3. The trial Judge, in exasperation to Wall's

unprofessional conduct, stated at the end of the trial in

April, 1983, "You have used the word "outrage" since

January 17th (the beginning date of the trial) (T 9717) and

also, "I don't know how many times vou have practiced in

Manhattan"? (T 9717). This is additional evidence of

deficient performance.

4, Prejudicial error of defense counsel was

obvious and apparent when Wall stated at a sidebar

conference, "I don't want to sink the other defendants". (T

§825-8). Judge Altman ordered Wall to repeat such remark

in front of his client. Instead, Wall made a long speech as

to how he was retained and Mirrer said three words, "Yes,

it does" which respondent misconstrued as being an

endorsement of Wall and agreement with his remark of not

wanting to sink the other defendants. This was not so.

Mirrer was not aware of this prejudicial remark at trial and

it was unprofessional error for Wall to have deliberately

concealed it from his client which may have resulted in his

immediate discharge. Judge Sand was in error in

speculating that the remark wasn't what it appeared to be

and that Wall meant not to sink Mirrer as well (42a-47a).

This remark of Wall represents a clear conflict of interest

and it was prejudicial unprofessional error for Wall not to

have complied with Judge Altman's order.

5. Wall's summation time was cut in half

due to overruns of other defense counsel. He was ordered

to proceed at 4:30 in the afternoon (T 9372) in spite of his

objections and telling the Judge that both he and the jury

were tired, thus, making an admission that he was not fit

for the summation. Wall spoke in generalities, praising

Mirrer, calling him innocent, saying he was an honest man.

He used poor judgment in comparing the prosecutor to

Senator Joseph McCarthy who hurt people with reckless

accusations during the 1950's. Judge Altman insisted that

Wall return to the podium after he completed his

summation to apologize. Wall began to rambie and then

said of the prosecutor, "I do not challenge Vir. Moscow's

substantive good faith. I do challenge his judgment and

zealousness." (T 9334). Such comment was not in

— , 4

petitioner's best interest, particularly due to the devasting

summation of the prosecutor who definitely lacked good

faith by making false claims and grossly distorting the

evidence, making the trial so fundamentally unfair as to

have denied Mirrer due _ orocess. Donnelly v.

DeChristoforo, 416, U.S. 637, 645 (1979). The prosecutor

took impermissible liberties in speculating and suggesting a

finding of guilt, implanting his own version, through

distortion of facts, stating that "the person who signed off

on the invalid tax oninion, engaged in fraud." "I suggest

that Raymond Mirrer intentionally took part in a deal

where he knew that the truth was not contained in the book

but was different." I suggest that Raymond Mirrer acted

intentionally to obtain money, profit and property...that he

acted as part of an ongoing scheme to defraud people.” "I

suggest that this is the essence of a swindle." (T9633-

9669). Wall, due to his deficient performance and a

conflict of interest, did not rebut the prosecutor's false

allegations as orginally made in the opening statement. He

never discussed the issues of "fraud" and the non-criminal

connotation of "invalid". Of recent date, several major

acquittals took place in New York, such as_ the federal

racketeering trials of Gotti and Gambino and the State

’

Court trial of Donovan. In each case, defense counsel

successfully used arguments of the distortion of evidence

and the bad faith of the prosecutor. It was unprofessional

error for Wall to have told the jury, "I do not challenge Mr.

Moseow's good faith". It was his duty and obligation to

challenge the obvious bad faith of the prosecutor, such

deficient performance being one of the key factors that led

to an unjust verdict.

6. Wall failed to discuss the specific crimes

of which Mirrer was charged. He read only Count 2, a

violation of the Martin Act, a misdemeanor, involving

State securities violations, for which Mirrer was convicted

because Wall failed to explain to the jurv that Mirrer made

no representations, such having been made in writing bv

the promoter and each General Partner. Mirrer was not

engaged to perform securties work which was left to other

independent counsel who were responsible for filings with

the Attorney General of the State of New York and held

accountable for compliance with the Martin Act. Wall

omitted to discuss the false filing count, a felony for which

Mirrer was unjustly convicted. Due to his unoreparedness

and incompetence, he merely told the jury, "..he can't be

guilty of what he is accused of here." (T 9409). This

clearly amounts to deficient performance. Wall was

grossly negligent in his cross-examination of Edward

Safran, the General Partner for the one 1980 Mayfair

program. Mirrer had written a letter to Safran giving

reasons as to why he could not sign the tax opinion. Due to

objections of other defense counsel, the letter was not

admitted into evidence but the details thereof could have

been solicited with proper cross-examination of Safran.

The prosecutor, surmizing that Mirrer's concerns regarding

Mayfair would surface during the trial, caught Wall bv

surprise in introducing an exhibit favorable to the defense,

a supplement to Mayfair, prepared on the Mirrer law firm's

own initiative, whereby Risk Factor 13 was revised to

disclose that no mining had taken place for the prior 1979

programs handled by the law firm. It was marked Exhibit

"O". Wall mentioned Exhibit "O" to the jury (T 9416), but

he neglected to mention "Mayfair" and omitted to remind

the jurors that Mirrer, in an act of independence, refused

to sign the Mayfair tax opinion. This was a critical factor.

The jury, knowing there was something unusual about

Mayfair, specifically requested a copy of the signed

Mayfair tax opinion during their deliberations. The Judge

merely told them that it could not be produced, without

giving reasons. Wall made only two casual references to

Prof. Bittker, the allegedly most damaging witness, who

really did not damage Mirrer, except in the eyes of the

prosecutor who mispresented the effect of Bittker's

testimony and Wall omitted to discuss the testimony of

the key defense witness, an expert on tax shelters, Paul

Goldberg, who completely disagreed with Bittker and

clearly justified Mirrer's actions and performance (T 8222-

8663).

POINT I

A WRIT OF HABEAS CORPUS MUST BE GRANTED

UPON A SHOWING OF INNOCENCE AND THAT

DEFENSE COUNSEL'S ACTS OF OMISSION AND

PERFORMANCE FELL BELOW AN OBJECTIVE

STANDARD OF REASONABLENESS, PRODUCING

AN UNJUST RESULT.

The exercise of this Court’ power of supervision is

warranted due to misstated facts by the Second Circuit and

a refusal to review and reverse its obvious error. The

panel, reeling from a reversal by this Court which affirmed

an earlier divided panel on successive petitions, refused to

grant a writ to petitioner who made a clear showing of

innocence that was ignored. Two Judges of this same

panel, were involved in a decision which granted a writ to

an admitted robber and murderer. Since the Second

Circuit has rendered conflicting opinions by two different

panels on the issuance of a Writ of Habeas Corpus, a

significant question of law is raised as to the basis for

granting a writ.

In Kuhiman v. Wilson, 91 L Ed 2d 741 (1986), this

Court indicated that there was a difference of opinion as

to the proper standard for the availability of federal

habeas relief. In Kuhlman, four Supreme Court Judges

expressed the view that habeas relief is available where a

showing of innocence is made. While petitioner claimed

that the trial evidence clearly established his innocence,

the District Court disagreed, speculating that, "a rational

trier of fact could have found beyond a reasonable doubt

that petitioner intentionally aided investors in filing false

state tax returns claiming invalid deductions with the

intent to defraud the state and that he agreed with at least

one other person to engage in or cause verformance of

felonious conduct." The Circuit Court, agreeing, cited

Jackson v. Virginia, 443 U.S. 307,319 (1979) and Cuyler v.

Sullivan, 446 U.S., 335 348 (1980). In actual fact, the

holding of both of these cases justify the granting of a Writ

because no evidence was presented of petitioner engaging

in a conspiracy or in criminal conduct.

In Wilson v. Henderson, 742 F 2d 741 (1984), a divided

Second Circuit panel granted a Writ. Petitioner's appeal,

affirming denial of the Writ, was heard by Hon. Lawrence

W. Pierce, Hon. Ellsworth H. Van Graafeiland and Hon.

William H. Timbers, Circuit Judges. In Wilson, Judge

Timbers voted for the Writ and Judge Van Graafeiland

dissented. In granting the Writ, the District Court was

reversed and the U.S. Supreme Court reversed the Second

Cireuit in Kuhlman. An earlier Second Circuit panel,

comprising three different Judges, on a split decision,

affirmed the District Court in denying the Writ in ‘Wilson v.

Henderson 584 F 2d 1185 ‘1978) and this Court denied

certiorari. The fact that there was disagreement between

two separate panels within the same Circuit on the same

matter wherein two Circuit Judges who heard petitioner's

case served on the panel that was reversed by this Court,

gives rise to justification for granting this ‘Vrit of

Certiorari, particularly where there is a clear showing

that the career of a professional was unjustly ruined due to

misguided and irreconcilable judicial determinations.

The decision and findings of this Court in Strickland

v. Washington, 466, U.S. 668-695 (1984) are very clear and

specific, yet, the Courts below arbitrarily concluded that

the standards outlined therein were not met by petitioner.

ne a

The District Court rendered an Opinion, comprising 26

pages and 14 pages of footnotes, with a multitude of

citations, most of which could be construed as being

favorable to petitioner if this Court adopts petitioner's

arguments. Respondent had used a joint brief for the State

Court appeal of over 400 pages, involving five appellants,

three of whom were convicted on all counts. The same

language and reasoning as to three defendants who were

convicted on all counts was used by respondent in Federal

Court, notwithstanding that there was only. one

appellant/petitioner who had been acquitted of the two

most serious felonies, larceny and scheme to defraud.

Judge Sand, acting as though his review involved all five

State Court appellants, stated that this case involved the

"illegal" sale of invalid coal tax shelters (24a) and claimed,

in error, that Mirrer endorsed the shelters (54a). Evidence

showed that the shelters were sold through proper

channels, using legally accepted practices. No tax

attorney endorses a tax shelter. Judge Sand erred in

defending the incompetent and ineffective defense counsel,

John Wall, relating that Wall told the jury about Wirrer's

extensive due diligence work, ignoring the fact that due

diligence would not have been necessary if Virrer were

hired as a mere "front" to sign tax opinions. Mirrer acted

independently and lost money on the engagement.

Competent and prepared counsel, not handicapped by a

conflict of interest, would have had no problem in

convincing the jury that the evidence vindicated Mirrer,

entitling him to acquittal on all counts.

The Circuit Court, ignoring Mirrer's acquittal of

scheme to defraud, stated that appellant was convicted of

"securities and tax fraud", both requiring criminal intent to

defraud (6a). The Court further stated that it believed

that defense counsel was prepared for trial, ignoring

transcript exerpts whereby Wall admitted to no advance

preparation, and erroneously reasoned that Wall committed

no unprofessional errors. A further conclusion was made

that the prosecutor presented "evidence" of

misrepresentation, mistaking statements of the vrosecutor

as evidence (9a).

The Circuit Court, in citing Strickland, used clouded

language which was better stated by Justice Sandra Day

O'Connor, as follows: "The benchmark for judging anv

claim of ineffectiveness must be whether counsel's conduct

so undermined the proper functioning of the adversarial

process that the trial cannot be relied on having produced a

just result." Further, Justice O'Connor stated that a

successful appeal based on effective assistance of counsel

must include two components, such as, a demonstration "on

the basis of "identified acts or omissions," that the

lawyer's performance "fell below an objective standard of

reasonableness." The defendant must also show that the

lawyer's performance was not only inadequate that that the

errors "actually have an adverse effect on the defense."

The defendant must show that there is a reasonable

probability that, but for counsel's unorofessional errors, the

result of the vroceeding would have been different, "a

probability sufficient to undermine confidence in the

outcome". Most assuredly, something is radically wrong

with a summation when jurors request a copy of a signed

Vayfair tax opinion during their deliberations, not

remembering that petitioner refused to sign such opinion as

evidence of his henesty, independence and good faith. Yet,

they convicted him because the prosecutor, in an act of

misconduct, falsely stated that Mirrer signed tax opinions

which he knew were false, leading to the filing of allegedly

false tax returns which noboby claimed were false, except

the prosecutor.

Petitioner's contentions to justify a habeas writ are

reinforced in People v. Worthy, 492 N.Y.S. 2d 423 (A,D. 2d

Dept 1985). Worthy was convicted of robbery, assault and

criminal mischief and his conviction was reversed due to

being deprived of meaningful representation. The Second

Department ‘Brooklyn, New York) relied upon Strickland

while the First Department (New York, New York)

remained mute on a timely motion for reargument

immediately following the highly significant Worthy

decision. Unlike the Second Department, the First

Department has a tendency to unanimously affirm in most

cases and rarely issues an Opinion. Such practices result in

a denial of meaningful appellate review. The more

conscientious State Appellate Court in Brooklyn reasoned

that defense counsel's summation consisted largely of his

irrevalent personal opinion of the innocence of his client

(like John Wall, as mentioned by the Circuit Court panel

that Wall emphasized appellant's innocence) (8a) and the

failure of counsel to focus on the fact that The Peoole of

the State of New York indicted three individuals for a

crime which involved two perpetrators. The weak

summation was held to have deprived defendant of his

constitutionally protected right to a closing argument. The

conclusive proof of Wall's weak summation is that Judge

Sand, a learned jurist, upon reading Wall's summation, as

was clearly shown by his comments, was not convinced of

Mirrer's total innocence. Judge Sand neglected to consider

substantial evidence of good faith. He ignored the fact

that the jury was convinced that Mirrer never intended to

steal or defraud anyone. The jury was confused in

acquitting on some counts and convicting on other counts,

all of which required criminal intent, due to the deficient

performance and unprofessional errors of John Wall.

Surely, the decision as to Worthy, whereby too many

persons were indiscriminately indicted, as was done in this

ease, should applv to petitioner who should not have been

indicted, considering that there was a failure of evidence

to show that Mirrer knew and/or intended to become

involved in felonious conduct.

Our liberty is too precious and our sense of justice

too valuable to be saddled with a decision of a District

Judge who, refusing to upset a State Court conviction, was

inclined to overreach that Wall did not have a conflict of

interest; to speculate that he was adequately prepared

when Wall admitted to no oreparation and to have

surmized, in error, that he acted competently when he was

criticized by his client, the trial Judge and the procecutor

who called him an "outrageous asshole". Wall must have

committed unprofessional errors to have left doubt in the

minds of the jurors that a lawyer, doing a conscientious

job, could be found guilty of a felony count and other

counts which specifically required criminal intent. It is

both amazing and shocking that the Courts below could be

swayed by respondent's shallow arguments that Bittker's

testimony, which was virtually harmless, established

Mirrer's criminal intent, coupled with Risk Factor 13 which

had no material effect upon the sale of partnership

interests, such language having been prepared by an

independent securities law firm. Chief Judge Sol Wachler

of the New York Court of Appeals publicly stated recently

that New York grand juries would indict a "ham sandwich"

if asked to do so by a prosecutor. The criminal conduct of

a client must not attach to his lawver who acted

professionally, without criminal intent. This type of gross

abuse of process, which was prevalent as to petitioner who

was denied due process and was subjected to a totally

unfair trial, demands intervention by this High Court.

CONCLUSION

This Petition for a Writ of Certiorari to review the

Order of the Court of Appeals for the Second Circuit

should be granted.

APPENDIX

> as eae

4 se a me

Oy:

i) sve

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on the

5th day of June one thousand nine hundred

and eighty seven.

Present:

WILLIAM H. TIMBERS

ELLSWORTH VAN GRAAFEILAND

LAWRENCE W. PIERCE FILED

Circuit Judges JUN 05 1987

RAYMOND MIRRER,

Plaintiff-Appellant

Vv.

QUASLIM INHAM,

Defendant-Appellee

Docket No. 86-2235

A motion for reconsideration of petition

for rehearing having been filed herein by

Plaintiff-Appellant, Raymond Mirrer, pro

se,

Upon consideration whereof, it is

il a Be a a Tan NN misao OY TR Hl tee We ee eee ee

ordered that said motion is denied.

/S/

WILLIAM H. TIMBERS

/S/

ELLSWORTH VAN GRAAFEILAND

/S/

LAWRENCE W. PIERCE

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United

States Court of Appeals, in and for the

Second circuit, held at the United States

Courthouse, in the City of New York, on the

24th day of March one thousand nine hundred

and eighty-seven.

FILED

MAR 24, 1987

RAYMOND MIRRER,

Plaintiff-Appellant,

QUASLIM INHAM,

Defendant-Appellee.

Docket No. 86-2235

A petition for rehearing containing

a suggestion that the action be reheard in

banc having been filed herein by

Plaintiff-Appellant, Raymond Mirrer,

pro-se,

Upon consideration, by the panel

that heard the appeal, it is Ordered that

said petition for rehearing is DENIED. It

is further noted that the suggestion for

rehearing in banc has been transmitted to

the judges of the court in regular active

service and to any other judge that heard

the appeal and that no such judge has

requested that a vote be taken thereon.

/S/

Elaine B. Goldsmith

Clerk

’

85-civ-6294

SDNY

Sand

LWP UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United

States Court of Appeals for the Second

Circuit, held in the United States

Courthouse in the City of New York on the

25th of November one thousand nine hundred

and eighty-six.

FILED

PRESENT: NOV 25, 1986

NON. WILLIAM H. TIMBERS,

HON. ELLSWORTH A. VAN GRAAFEILAND,

HON. LAWRENCE W. FIERCE,

Circuit Judges,

RAYMOND MIRRER,

QUASLIM INHAM, Warden, North Facility

Department of Correction,

Respondent -Appellee.

Appeal from an order denying

appellant’s petition for habeas corpus

pursuant to 28 U.S.C. SEC. 2254 (1982) in

the United States District Court for the

Southern District of New York (Sand, J.).

1. Appellant was convicted after a

jury trial in New York on charges of

securities and tax fraud. On appeal,

appellant alleges that he was denied a fair

trial due to the ineffective assistance of

counsel, contending that counsel was

inadequately prepared for trial and

delivered a summation evidencing a conflict

of interest. We do not agree. To support

his claim that counsel was not adequately

prepared for trial, appellant notes that

counsel waived opening argument, had only

ten days to prepare for trial, and was not

admitted to practice in New York. A claim

of ineffective assistance of counsel,

however, will prevail only if an attorney’s

performance is so deficient that it created

"a reasonable probability that, absent the

errors, the factfinder would have had a

reasonable doubt respecting guilt."

Strickland v. Washington, 466 U.S. 668, 695

(1984). We do not think that the evidence

appellant has offered meets the Strickland

standard.

Appellant’s contention that his

counsel, Wall, was burdened by a conflict

of interest also must fail. To establish an

ineffective assistance of counsel claim, "a

defendant must establish that an actual

conflict of interest adversely affected his

lawyer’s performance." Strickland, 466 U.S.

at 692 (quoting Cuyler v. Sullivan , 446

U.S. 335, 348 (1980)). Here, appellant had

agreed to an arrangement in which he had

hired Wall but Wall was paid by his

co-defendants. Appellant could have been

represented by a court-appointed lawyer but

rather chose to hire Wall. Moreover, in his

summation, Wall clearly articulated that he

was appellant’s attorney and emphasized

appellant’s innocence.

2. Appellant also alleges that the

prosecutor’s argument to the jury

misrepresented the amount of time that

appellant had reviewed a tax opinion. A

prosecutor’s misrepresentation of the

evidence warrants habeas corpus relief only

when it renders the trial so fundamentally

unfair that it results in a denial of due

process. Donnelly v. DeChristoforo, 416

U.S. 637, 645 (1979). In his summation, the

prosecutor inferred that appellant decided

to sign a tax opinion. We agree with the

district court that the prosecutor’s

proposition could have been inferred from

the trial evidence. However, even if the

prosecutor did misrepresent the amount of

time appellant considered the tax opinion,

such a misrepresentation would not render

the trial fundamentally unfair. The

prosecutor’s comments regarding appellant’s

consideration of the tax opinion consisted

of one paragraph in two hundred transcript

pages of summation. Further, there was

ample other evidence in the record to

support the appellant’s conviction.

3. Appellant claimed that there was

insufficient evidence of the mental

elements of the crimes charged to support a

conviction. However, according to Jackson

v. Virginia, 443 U.S. 307, 319 (1979), a

habeas claim will succeed only if no

rational trier of fact could have found

proof beyond a reasonable doubt. Here,

there was sufficient evidence of

appellant’s bad faith, because, among other

things, the prosecutor presented evidence

that appellant misrepresented his expertise

in the tax and securities areas and

10a

provided misleading statements to

investors.

We have considered appellant’s other

arguments and find them to be without

merit.

We affirm the judgment of the

district court.

/S/

HON. WILLIAM TIMBERS,

/S/

HON. ELLSWORTH A. VAN

GRAAFEILAND,

/S/

HON. LAWRENCE W. PIERCE,

Circuit Judges.

lla

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

‘ UNITED STATES COURTHOUSE

FOLEY SQUARE

ELAINE B. GOLDSMITH NEW YORK 10007

CLERK

(212) 791-0103

April 10, 1987

Mr. Raymond Mirrer

320 East 46th Street - Apt. 3H

New York, NY 10017

Re: Mirrer v. Inham - Docket No. 86-2235

Dear Mr. Mirrer:

Your letter with the attached

petition for rehearing and request for

reconsideration, addressed to Chief Judge

Feinberg and received in chambers on April

3, 1987, has been referred to this office

for reply.

Please be advised that your petition

has been filed and forwarded to the panel

that originally heard your appeal. As the

attached docket sheet indicates, your

petition has been filed as a "motion for

reconsideration of petition for rehearing".

12a

This office will notify you as soon

as a decision is rendered in this matter.

Very truly yours,

/S/

MCM: jrm . Marcia C. Mahan

Enclosure Operations Manager

13a

Raymond Mirrer

320 East 46th Street,New York, New

York 10017

(212)661-5770

April 2, 1987

Hon. Wilfred Feinberg

Chief Judge, Court of Appeals

Second Circuit

Foley Square

New York, New York 10007

Re: Reconsideration of Petition

for Rehearing

Mirrer vs. Inham

86-2235

Dear Judge Feinberg:

On March 24, 1987, a Petition for

Rehearing In Banc, filed on December 8,

l4a

1986, after a delay of 3-1/2 months, was

denied because no active Judge had the

interest to request that a vote be taken

thereon. As a concerned citizen and

interested party who has clearly been

deprived of constitutional rights, I am

compelled to request that this Court takes

cognizance of a serious oversight.

On March 25th, the Deputy Clerk

advised that if further review is sought,

the undersigned Pro Se Petitioner should

contact the Clerk of the Supreme Court of

the United States. I would hope that this

expensive procedure, which carries almost

impossible odds, could be avoided.

When one’s life and liberty is at

stake, such as the complete ruination of a

professional career, due to a misguided

judicial determination, it does not appear

unreasonable to request and receive

enlightenment as to why Petitioner’s

arguments did not carry adequate weight to

15a

justify more than a blanket denial. A clear

showing of innocence was made in the

complete absence of the crimes for which

Petitioner was convicted which crimes were

committed solely by three co-defendants.

Can justice be so blind that Judges do not

care that a mistake was made?

The panel erroneously concluded that

Petitioner was convicted "after a jury

trial in New York on charges of securities

and tax fraud." The panel ignored the claim

that six defendants were indicted for

crimes perpetrated by three of them, and

most important, they ignored the fact that

Petitioner was acquitted of larceny and

scheme to defraud. The panel also

incorrectly concluded "the prosecutor

presented evidence that appellant

misrepresented his expertise in the tax and

securities areas and provided misleading

statements to investors." Comments and

speculative conclusions of a prosecutor are

16a

not evidence and it is a great injustice to

our judicial system for a High Court to

place reliance upon the false

q Se en

i ed Sook ay RM tts I a AD

representations of a prosecutor, shutting

TY bd Neh pei abd

its eyes to obvious prejudicial error, and

merely echoing unsupportable conciusions of

the District Court which defies common

sense.

With absolute certainty, this Court

had never encountered a lawyer who had been

licensed, by examination and experience, in

the three professions of engineering

("P.E."), law and accounting ("CPA") and

holds a Master of Administration degree,

majoring in tax and finance. This lawyer

had been a Member of the New York Bar since

March, 1957, representing a large span of

diversified experience which included

activities in tax and securities matters.

Yet, because a prosecutor claimed, by

innuendo, that Petitioner lied about his

tax and securities background, the Circuit

17a

Court deemed it proper (based upon false

representations of the opposition) to

affirm a felony conviction for filing false

New York State tax returns which nobody,

not one witness, claimed were knowingly

false. Is this sound judicial discretion? A

claim of falsity was made solely by the

prosecutor who had a field day in

criticizing tax shelters for which he had a

great prejudice without fully understanding

them. The District Court, in agreeing with

the prosecutor, was in effect, surmizing

that anyone connected with tax shelters is

guilty of criminal conduct. Major law firms

have been involved in rendering tax

Opinions on tax shelters which must have a

genuine business purpose. Expert testimony

was provided that the professional services

provided by Petitioner more than adequately

conformed to customary industry practices.

The problem with many tax shelter

programs is the dishonesty of the

18a

promoters. Tax deductions on New York State

tax returns in this case were disallowed

due to lack of business activity, not for

fraud. Fraud of another nature was proven

as to three co-defendants, not as to

Petitioner, a mere victim from whom

information was concealed, who was

acquitted of scheme to defraud.

Petitioner presented clear-cut facts

of honest intentions and the evidence

showed that exceptional due diligence was

performed as a demonstration of

Petitioner’s good faith. Under no

circumstances could it be inferred from the

evidence that Petitioner deliberately

attempted to mislead investors, all

securities matters having been reviewed by

independent securities counsel who filed

and were responsible for State "Blue Sky"

filings with the Attorney General of the

State of New York. The promoter was

independently advised by prestigious law

ao IW te haa SOL eT hia

1Ya

firms in establishing the corporate entity

which promoted the tax shelters.

In the interest of justice,

Petitioner respectfully urges that

reconsideration be given for the granting

of a Rehearing in lieu of maintaining

complete silence under circumstances of a

"bleeding" victim that requires aid in the

healing of scars which were sureptitiously

inflicted.

Our values of justice are too

precious to be saddled with a decision

which is contrary to the evidence, in

direct contradiction to applicable criminal

statues and whereby significant facts were

ignored which fully support a clear

conflict of interest and ineffectiveness of

defense counsel. John Wall, Petitioner’s

tainted counsel who was characterized by

the prosecutor as being an "asshole",

omitted to tell the jury that a lawyer

whose cautious due diligence resulted in

20a

delays in the issuance of tax opinions and

who refused to sign a particular tax

opinion which was requested by the jury

during deliberations and they were left in

the dark because it did not exist, could

not be guilty of conspiring with

co-defendants in the commission of the

specifically charged crimes.

Petitioner has amply demonstrated

that the granting of a Writ of Habeas

Corpus is fully justified under the

guide-lines set forth in Strickland v.

Washington, 466, U.S. 668,688, 692 (1984).

Respectfully submitted,

/S/

Raymond Mirrer

Pro Se

Petitioner/Appellant

cc: Robert M. Morgenthau

District Attorney

County of Manhattan

By: ADA Donald J. Siewert

EE —e

2la

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ainmmeninieeaammN indian apabiaabtedeabas X

RAYMOND MIRRER,

Petitioner,

-~against-

QUASLIM INHAM, Warden,

North Facility, Department

of Correction,

Respondent.

Cina daidinn dh aan anes andientatin ante indinessmandaninmeeed: X

85 CIV 6924 (LBS)

OPINION

June 20, 1986

APPEARANCES:

RAYMOND MIRRER, Petitioner, pro se

ROBERT M. MORGANTHAU

District Attorney, New York County

Attorney for Respondent

One Hogan Place

22a

New York, New York 10013

MARK DWYER, Asst. District Attorney

DONALD J. SIEWERT, Asst. District Attorney

-Of Counsel-

HONORABLE LEONARD B. SAND, U.S.D.J.

;

“4

‘

23a

SAND, J.

Raymond Mirrer petitioned this Court

for a writ of habeas corpus pursuant to 28

U.S.C. Sec. 2254 on September 13, 1985.

Petitioner alleges that he was denied a

fair trial in violation of the Sixth

Amendment through the exclusion of

exculpatory evidence and the prosecutor’s

misrepresentations regarding the time

within which petitioner reviewed (prior to

Signing) a tax opinion. Petitioner also

claims that he was denied effective

assistance of counsel and that the state

court failed to adequately inquire into his.

attorney’s alleged conflicts of interest.

In a memorandum attached to his petition,

Mirrer also alleges that the trial evidence

was insufficient to establish beyond a

reasonable doubt the elements of guilty

knowledge and intent needed in order to

convict him of conspiracy and false

filing. Petitioner’s Memo. of August 30,

24a

1985 at 4-5. For the reasons stated below,

the petition for writ of habeas corpus is

denied. FACTS On January 28, 1982,

petitioner and his co-defendantsl/ were

charged in a twenty-five count indictment

with Grand Larceny in the Second Degree,

Scheme to Defraud, Offering a False

Instrument for Filing, and Conspiracy.

They also were charged with violating the

Martin Act, which prohibits all frauds and

deceptions in the sale of securities. N.

Y. General Bus. Law Sec. 352-c (McKinney

1984). All of the charges related to the

illegal sale of invalid coal tax shelters.

After a three month trial, petitioner was

convicted on April 19, 1983, on ten counts

of offering a False Statement for Filing in

the First Degree and one count each of

Conspiracy and violating the Martin Act.

He was sentenced to concurrent terms of six

months imprisonment and four years and six

months probation.

25a

On June 25, 1985, the Appellate

Division of the New York State Supreme

Court affirmed petitioner’s conviction.

111 A.D.2d 696. Petitioner was

subsequently denied leave to appeal to the

New York Court of Appeals on August 2, 1985

(65 N.¥.2d 984) and this denial was

affirmed both on August 13, 1985 and

October 18, 1985. On August 14, 1985, the

trial court denied without a hearing

petitioner’s motion to vacate his

conviction pursuant to N. Y. Crim.

Procedure Law 440.10. Motion for

reargument was denied on September 11,

1985. On September i3, 1985, the Appellate

Division denied petitioner’s motion for

permission to reargue the affirmance of his

conviction. On November 26, 1985, it

denied petitioner’s "Motion for Renewal of

Motion for Reargument and Reconsideration

of Appeal."

Although it is not clear whether

26a

petitioner and respondent agree entirely

as to which claims have been exhausted,

this Opinion shall only address the

exhausted claims because petitioner

explicitly has waived his right to assert

any claims which have not been exhausted.

Petitioner’s Supplemental Aff. of March 6,

1986 at Sec. 7; see also Petitioner’s

Rebuttal Aff. in Support of Petition of

March 31, 1986 at Sec. 7 and text infra.

A. Sufficiency of Evidence Claim

Petitioner first alleges that the

trial evidence was insufficient to

establish beyond a reasonable doubt the

elements of guilty knowledge and intent

needed to convict him of conspiracy, false

filing and violating New York’s Martin Act.

His conviction for Offering a False

Instrument for Filing in the First Degree

required a showing that he intentionally

aide’ the investors in the filing of New

York State tax returns claiming invalid

27a

deductions and that he intended "to defraud

the state or any political sub-division

thereof...." See N.Y.Penal Law Sec.

175.35 and 20.00 (McKinney 1975). His

conviction for Conspiracy in the Fifth

Degree required proof that "with [the]

intent that conduct constituting

a felony be performed, he agree{d] with one

or more persons to engage in or cause the

performance of such conduct[.]" N.Y. Penal

Law Sec. 105.05(1) (McKinney 1986 Supp.).

We must consider whether after

reviewing the evidence in the light most

favorable to the prosecutor, any rational

trier of fact could have found these

elements of the crimes charged beyond a

reasonable doubt. _Jackson v. Virginia, 443

U.S. 307, 319 (1979). In other words, "a

petitioner who raises a claim for habeas

relief such as that proffered here will

succeed only ‘if it is found that upon the

record evidence adduced at the trial no

28a

rational trier of fact could have found

proof of guilt beyond a reasonable doubt.’"

Nelson v. Smith, 618 F.Supp. 1186, 1194

(S.D.N.Y. 1985) (quoting Jackson v.

Virginia, supra, 443 U.S. at 324 (emphasis

added) ).

Having reviewed the record of

petitioner’s state criminal trial, this

Court finds that there was sufficient

evidence presented from which rational

jurors could find the mental elements of

Mirrer’s offenses beyond a reasonable

doubt. As respondent notes, there was

abundant evidence of petitioner’s bad

faith. Not only did he apparently

misrepresent his own expertise in the tax

and securities area and the size and nature

of his law firm,2/ but he specifically

determined that a misleading statement,

Risk Factor 13,3/ should be included in the

placement memoranda. Tr. 7356-57.

Moreover, petitioner signed off on a tax

29a

opinion which promoted what an expert

| witness in the tax field, Professor

. Bittker, described as an "abusive tax

shelter,"4/ j.e., one to which a

responsible and competent tax practitioner

could not have assented. See Tr. 5391;

2 Whale hulaeasdibetig

5401; 5519-20; 5533-34; 5542-50. The tax

shelter involved "minimal annual

royalt{ies] of almost twenty-seven hundred

dollars per year per acre for property that

shortly before that changed hands subject

to a royalty of only three dollars per year

per acre," a mark-up the Internal Revenue

Service could not treat as bona fide (Tr.

5322-28). It also included a provision

allowing investors to borrow up to three

times their capital contributions to the

partnership from a lender controlled by

Firestone, and contribute the borrowed

money to an "insurance reserve" which, in

actuality, permitted investors to withdraw

their contributions on ten days notice,

30a

even after the cccurrence of the events

insured against.5/

Coupled with other evidence adduced

at trial, including the fact that

petitioner failed to disclose that

Firestone and Dorison were promoters of the

programs,6/ a rational trier of fact could

have found beyond a reasonable doubt that

petitioner intentionally aided investors

in filing state tax returns claiming

invalid deductions with the intent to

defraud the state and that he agreed with

at least one other person to engage in or

cause performance of felonious conduct.

See text_supra. Courts have consistently

found that "[a]s long as any competent

evidence went to the factfinders from which

they could infer guilt beyond a reasonable

doubt, the conviction will stand." McShall

v. Henderson, 526 F.Supp. 158, 161

(S.D.N.Y. 1981) (citing Jackson v.

Tirado v. Bombard, 423 F.Sup4. 1245

(S.D.N.Y. 1976)).27/ Petitioner’s false

representations, as evidenced by Risk

Factor 13, his disclosure failures, and his

apparent drive to form and sustain a liason

with Firestone (Tr. 9466) and shield it

from concerns and objections raised by his

law associates despite the jeopardy this

may have posed to his integrity, all

provide a factual basis for the jury’s

finding that the mental elements of

petitioner’s offenses were established

beyond a reasonable doubt. 8/

B. Claim that Petitioner’s

ti i Ri Vi hrou

; Ww. e) , e

Duri Six M hs P ¥ Trial

Petitioner was represented by

Lawrence Levner, Esq. until July 14, 1982.

As petitioner articulates, he "was

displeased that his counsel, joined with

32a

the other attorneys in all motions, thus,

when Levner kept asking for more money |

while he was leaning upon the other

attorneys to carry the ball, [petitioner]

agreed to his suggestion that he withdraw

due to [petitioner’s] shortage of funds."

Petitioner’s Reply Aff. in Opp. to Denial

of Petition of Feb. 25, 1986 ("Reply

Aff.") at 14. Thus, at a pretrial

conference on July 14, 1982, Justice Altman

asked petitioner if he felt capable of pro_

se representation. Petitioner replied that

"the seriousness of the charges demand[ed]

that. . . a conference [be held], because,

frankly, {he did not] understand the

charges against [him]." Minutes from July

14, 1982 at 5. Petitioner further stated

that "the entire indictment [wa]s based

upon false statements, or false accusations

which frankly, [he did not] understand"

and repeated his request for a conference.

id.

———

33a

After the prosecutor’s (A.D.A.

Moscow) further request that the court

sufficiently inquire into both petitioner’s

ability to represent himself and the

voluntary or involuntary nature of this

choice, Justice Altman again asked

petitioner if he was capable of

representing himself. Id. at 6.

Petitioner stated that he honestly did not

know and requested a conference. Id. at 6.

Justice Altman refused petitioner’s request

on the grounds that much time already had

passed and a significant number of motions

already had been filed both by petitioner

on his own behalf and “by Mr. Levner making

them, and joining them in a motion." Id. at

6-7. Justice Altman told petitioner "I

think it behooves you, Mr. Mirrer, at this

late stage, to come in at this late stage

and say, ‘I don’t understand the charges,

and I don’t know whether I can represent

myself.” And yet, you state here, in court,

34a

you are an attorney." Id. at 7. Mirrer had

earlier acknowledged his familiarity with

the facts. Id. at 4.

Justice Altman asked petitioner one

final time if he was prepared to go pro se

and petitioner responded that he had

concurred in Levner’s request to be

relieved as counsel. Id. at 7. Justice

Altman then asked petitioner who was going

to represent him -- "and if you say you are

going to represent yourself, you’re an

attorney and I will certainly ---" Id. at

7-8. Petitioner stated that he would

represent himself. Id. at 8.

Petitioner represented himself until

January 11, 1983, when John Wall, Esq.

began representing him and remained his

counsel throughout the trial. In his

petition, Mirrer claims that the court

denied both a conference and an inquiry and

left him to represent himself for six

months in a case with complex charges when

oO ELE —

35a

he had had no criminal trial experience.

In his reply affidavit, he states that he

would have wanted a court-appointed

attorney “but the prosecutor requested that

[he] submit a financial statement at a

time when [his] income had fallen

drastically following the indictment and

[he] was seeking to borrow funds and did

not want to plead poverty." Reply Aff. at

is.

Even if this Court found that

petitioner did not knowingly and

intelligently waive his right to counsel

(McKaskle v. Wiggins, 465 U.S. 168, 104

S.Ct. 944, 949 (1984); ta v.

California, 422 U.S. 806, 821 (1975)), it

could conclude that under the particular

circumstances, he was not exposed to any

reasonable possibility of prejudice as a

result of this self-representation. United

States v. Calabro, 467 F.2d 973, 988 (2d

Cir. 1972), cert. denied, 410 U.S. 926

36a

(1973); see also Richardson v. Lucas, 741

F.2d 753, 757 (Sth Cir. 1984) (harmless

where no reasonable possibility exists

that representation by counsel during

petitioner’s trial would have affected the

verdict of guilty). In fact, pre-trial

want of counsel (and even want of counsel

during a trial itself) has been found to be

harmless in many instances either by reason

of the nature of the proceeding or the

brevity of counsel’s absence. See United

States v. DeCoster, 624 F.2d 196, 257 and

accompanying notes (D.C.Cir. 1979)

(examples include preliminary hearings,

arraignments, entries of not guilty

pleas 9/ and jury deliberations.

Petitioner was without

representation at a moment that involved

less danger than want of counsel at a trial

Or on appeal. See Adams v. Illinois, 405

U.S. 278, 282-83 (1972) (discussing in a

different context distinction between want

37a

of counsel at a preliminary hearing and at

trial); see also DeCoster, supra, 624 F.2d

at 257 n.113. Moreover, petitioner

describes no significant occurrence during

the six months in which he represented

himself that exposed him to any reasonable

possibility of prejudice. Calabro, supra,

467 F.2d at 988. Finally, even prior to

relieving Mr. Levner, petitioner had filed

motions on his own behalf,10/ indicating

at least enough familiarity with the

criminal justice system to serve adequately

as his own advocate and an inclination to

take on this role. See Richardson, supra,

741 F.2d at 757 (although habeas petitioner

had indicated limited knowledge of law, the

many motions he had prepared demonstrated

he was literate and familiar with the

criminal justice system); see also McKaskle

v. Wiggins, 104 S.Ct. 944, 949 (1984)

(petitioner who had been allowed to proceed

pro se at his state robbery trial had filed

38a

and argued at least 12 pro se motions in

pretrial proceedings).

As the Supreme Court has

articulated, “an accused has a sixth

amendment right to conduct his own defense,

provided only that he knowingly and

intelligently forgoes his right to counsel

and that he is able and willing to abide by

rules of procedure and courtroom protocol."

McKaskle, supra, 104 S.Ct. at 949; see also

Faretta v. California, 422 U.S. 806, 835

(1975). Petitioner claims that his

insisted failure to understand the charges

against him precludes characterization of

this six month long waiver of counsel as

"intelligent." However, as he illustrates

in his Supplemental Reply of Feb. 25, 1986

at 82, petitioner actually "wanted proof

and he knew there was no proof of

committing a crime." See also Petitioner’s

Reply Aff. at 15 (petitioner states what he

wanted to know when he stated that he

39a

didn’t understand the charges against him

was "what evidence was available to justify

the indictment because [he] was being

offered a deal to plead guilty to certain

counts to avoid jail but was never advised

the nature of the evidence against him.

The other defendants profited from the

venture while Mirrer was used as a pawn,

not a co-conspirator, and lost money on the

engagement").

Thus, primarily because he felt that

he was innocent, petitioner said to Justice

Altman that he did not understand the

charges. Although petitioner states that

he did not mean that the charges were

merely unfounded, id , the information he

was seeking reflects no other connotation.