# Opposition Brief — Strauss v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0063%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1966 - **Citation:** 385 U.S. 989 ## Text Opinions below_----- Licienaigitdeaniiniadibtnimasdlauie: me ; 8 TE A EOE CONS AE CEES” 5 iy Question, presented. ine niennces. 9 Statutes and rule involved__-_---~----- healing . . Statement ........... cil halite Ae as Riel Ae IS TID | isiceiinictticinisile cecttichiakaietpicacecontcanig =. a Comet 35m 5 cin cd ila pica irom” ae CITATIONS , PI ie Cases: were .: . Alkon v. United States, 163. Fed. “a... 13 ‘Kaplan v. United States, 7 F. 2d 594, cer- ' tiorari denied, 269 U.S. 582_._____- inn. oe -Ledet v. United States, 297 F. 2d 737----.- 11 Mesarosh v. United States, 352 U.S. 1_---- Ail Strauss v. United States,. 311 F. 2d 926, cer- ° .. - . tiorari denied, 373 U.S. 910.-=----__- 3° United States v. Rabinowich, 238 U. > i wae Statutes and Rule: | ) - re : ‘is UBO 198 op 6B + = ee . MRM OE a 23 Rule 33, F.B.Crim.P..........-.-.-..... 33 238-775—66——-1 a a ie Sapeeme Gout of the Ue sie : ES | item - Ooronen Tnx, 1966 ie a Ng. 713. | FAS ONS i Rosser LL. Smavss, PETITIONER a Cate : x . A has |Uxrmp Stares oF Ayonica Eo ora * | ON ‘PETITION. FOR A WRIT OF ORRTIORARI TO THE UNITED STATES COURT OF. spSdsrmacat FOR THE FIFTH sax ae 4 iy BRIEF FOR THE UNITED STATES IN OPPOSITION eee OPINIONS BELOW. The opinion i the court of appeals is: sale iite 363 F. 2d 366. (Pet. App. -1=5).-The: opinion of the ~_ | ‘ . eourt of appeals, affir the original conviction | Se ’ - feported at 311 F, 2d 926 (Pet. App. 6-16). Certio- : . "vari was denied, 373 U.S. 910. The per’ curiam opin- ion. of the court of- appealg affirming denial of an ~ earlier motion for a new trial on the basis of newly 5 discovered evidence is reported at 837 F. 2d 853 — eae _ App. 17). age soe : es Po. The Soa of the edurt of spouts was 5 edie * on July 21, 1966. A petition for rehearing was denied — _ on September 22, 1966. ‘The petition for atwrit of | eertiorari was led ‘on. October th 1M The ie : | (1) f Be | & Bh sag - & A ’ = = ; ' @istion of this Court is - invoked under 38 v. s. ©. — 1254). Bee oe | ee: fy) @omerION PRessED, rio Reeliw Pe * Whether the trial court properly d denied petitionier” -* | ” second motion for a new trial based on allegedly newiy, ~ discovered | evidence. . games ‘ : $ neers) ae ‘STATUTES AND RULE INVOLVED 4 ae 418 U.S.C (1958 éd.). 152, at, the time of the: events Sao here involved, provided pertinently : : _.. Whoever, while an agent or officer of any. 8; - person. or corporation, and in contemplation eS - Of.a bankruptey proceeding by or against such, _ . \person or, corporation, or with intent to defeat ‘ . the’ bankruptey law, knowingly and fraudu- ‘ Jently transfers or conceals any. of the property © pete ot eet of such person or corporation :* * * ~~ ¢ ae Se >. Shall be. fined not More. than. $5,000 or im- eo | prisoned not more’ thant five years, or both: at) UBL: 371 provides pertinentiy: oT : \ 1) MT two “or mote ‘persons’ ¢onspire either to ss ' ‘eommit any -offerise agaitist the United States, “or to defrand’the United States, or ary ac coney . therecf in-any manner or for any purpose, and and ; |. ong cn more of such. persons do, any act.to eitee bs . | rout vhjeet.of the conspiracy, each shall be, fined, \ _ not more. than. $10,000 or imprisoned. not more - ees sere = than ‘ive:-years, or both. | ee * Rule 33, F.R. Crim, Fry ae aly 3 - 1966, pro- : Hed ak follows : ‘ 7 Gua The. court may. grant. a new trial, to a defend? : ny i “ant, if fequired in the interest of justice. If ~~ was by the court without a jury the court ia] va vaeake the judgment if entered, také addi- _ tional testimony and = the entry of a new : motion for a new trial based, on newly discover SM dence, which denial ‘was upheld by the Fifth | ‘ireuit art 3 e is | | judgment.s matin’ ‘tor: sew brad biedon 3 .. the ground of newly: discovered e ME ae ES - be-:made only before or. within two. y after Breed oo “, final judgment, but if an appeal is sede, the . ‘court may grant the motion only on remand of Biter . the case. A-motion for a new trial based on e. any other grounds shall be made within 5 days Ree -* after verdiet or finding of guilty or within such further ‘time as the court nar Re _——e iedey' — é ear sikeuiais min qarteie 3 i :., sania es " Petitioner seeks review of Bi Metial:2 of ‘his bbe : G5: ‘on appeal. * Petitioner was convicted on.an indi tment | in the United States District Court for the Southern - - District of Florida ‘alleging that he and co-defendant °° Goodman, in contemplation of the bankruptcy of a : | corporation of which. they were officers, conspired eet | ay Be. ‘transfer and conceal assets of that corporation in viola- ‘ae . tion of 18 U.S.C. 152, 371 (Supp: R. 13-18)? Good- : Man pleaded. guilty (Pet. App. 6). On February 2... bea = 1962, after-a- jury trial, petitioner was given a sentence : 3 of ‘two yeats, four months in prison and the balance eas 7 A on probation (Supp. R. 37-38). The conviction was ae ‘affirmed. Strauss v. United ‘States,\ $11. F. a> 926, certiorari denied, : 373 U.S. 910. % i Rule 33, as revised slightly, effective July . 196, is set out ie in the petition (Pet. App. 22). se * Following the same designation as in thé petition, er ; ee Se to the record in the present proceeding, and “Supp. R.” to the _ . fecord at trial. We have also lodged with the Court the record =~ . - of the proceeding on the first motion for new trial based on re newly discovered evidence, yah is pelt to herein’ as “Od Supe. i kg copy of the, construction contract, which called for payment of the $1,250,000 to Cal ‘Ko ores Construction Company, to cover the entire césts of the job\ (Supp. R. 82-92). The day after the loan Was, closed, this agreement was superseded by one in ~ ; which. the construction company agreed to supervise the work irectly (Supp. R. 93-96). the special construction account set up by the lending savings and all on the same day (Supp... Rs 384, 401, 405, 423-424), eheck. parehle J to ects bore the ‘endorsement “Robert - = a», for a total fee of $50,000; while the corporation assumed the - \ - .. payment of all bui : = November 15, 1956, the Kovens Company drew $45,000 on _ Joan company (Supp. R. 96-98), and paid the same amount to 5 - Hatold Corporation, which paid the'same amount to Beritione® > Wag” ah - | £ | - oe \ | meng ce e tee a’ fo er manager of ae Cadillac Hotel and _” president of ld Corporation, testified that he: - . * ie tise pach some. shosts paral. Js - Bolton and give the proceeds either to Goodman, to petitioner, or to wire :themi to the Rhodes Optical Strauss”, . which a handwriting expert testified at trial was ex- | ecuted by petitioner (Supp. ER. 401, 405, 466-467 ; Govt. Exh. 52). - Photocopies were introduced of the eg he, checks, drawn on Harold Corporation’s account. with the Pan Bank | . by Robert L. § payable either to himself or to cash and - ', purporting to ~petitioner’s signature both as drawer and: . endorsee (Supp. R. 271-277): a ' -Sply 25, 1956 (Govt. Exh, 24)...--- — $17, 500 - Sept. 28, 1956, (part of Govt... Exh. 25)...-..-.... 4,000 © Oct. 1, 1956 (part of Govt. Exh. 25)___-_____-. ee _ Oct. 1, 1956 Hid cat dS Waki Se) ; \ Oct. 17, 1956/ (part of Govt. Exh. 26)~-.--- Lifts = e “Nov. 4; 1956 (past of Gort. Exh. 96). 7 00° Nov. 9, 1956 (part of Govt. Exh. 26) ----- Be "nly 31,-1956 (Govt. Exh. £7). ” en “g2380 “Photocopies were introduced of’ two checks purportedly’ ei drawn by Jeri Bolton on. the Mércantile National Bank, pay- : ble to Robert L. Stratee-and.enidorsed “Robert. La Strauss” (Supp. R. 315-319) : ” , ve Dec. 10, 1956 (Govt. ‘Exh. $4) paReL ei ” $16,000 ie Dec. 19, 1956 (Govt. Exh. 35) __ si o. 43500 . Also introduced was a photocopy “3 a check ‘of theecorpo- ration drawp ‘on the’Miami Beach Firet National Bank, pay: , able to Robert L. , Strauss and Ray Goodman, dated ‘October : & Th 1956, in the ‘amount ‘of $25,500 (Supp. R. 401-405; Govt. — : Exh. 51). The endorsemént of* petitiorer_thereon was | gen- _ wine in the opinion of the government's Tanawrieng expert (Supp. R: 466-467). The Pan ‘American. iii “heidi “i loan of $330,000 to lie corporation on March 20, 1957, which was paid out by the cor- _ poration on the same day. (Supp. R.-266-270). Included in the * ‘\payrments was ‘a’ check for’ $111,000, drawn by petitioner, to Florida International. Corporation, a company: of which peti- . tioner was treasurer (Supp. R. 158, aa, 6 Govt. Exh. 51). s te xen : _ Company: in Atlanta. He could ‘int ‘identify these ee occasions. with: any particular checks Supp. R. R. 213, Hg 218, 230, 225).- __ On’ ‘¢ross-efuminiatfon, Low reiterated that be oil ; a he go at" was a $15,000 or above; T treme t= er ber that. check (Supp.. R. 931). On: another occasion he took : oe However, he- could: not: tie this | transaction “he. any ° e a sum of money to Goodman's. rouse and there was _ : eat exchange of funds” with ee on the porch EN | Supp. B.-288). 2. In this secorid motion’ for a new trial,’ ssoldidiaiel :e! -. Sought to prove:/(a) ‘That the testimony of Jack Low — ae that he had cashed cheeks involving company funds. and .given the proceeds to petitioner was perjured ; H (b) that petitioner’s purported endorsements on fhree ere forgeries; * and (¢) that petitioner severed ; his relation with, Harold aati on March 20, vA ‘1957. ) — rn In a prior paar era petitioner had mae a new trial on’ athe. _basis of testimony of co-defendant. Goodman before’ the bank- ' yuptcy court that petitioner and his. wife sold all their stock and pétitioner terminated all his participation in Harold rr ae Poration on Mareh 14,1957 (2d Supp. R. 2-10). . ‘The cheeks ‘were: . “a3 - Govt. Exh. 51, a company ‘check on the Miami Beach First ‘National Bank, dated October 11, 1956, for $25,500, payable to Robert Strauss and Gordan, {note 4, supra)., Govt, Exh. 34, 4; by Jeri BRokkon on on the Mercantile ‘National. Bank, dated December 10, 1956, for $16,000, payable vat eas (note 4, supra). , | wi teak Bis ac chake: tor: donk. Goodies. .om. ibm Seecatiaie National Bank, dated December 19, 1956, for $7 00, payable to aaa! fmen 4, eupra).. (a) Low.,wag called. by ‘petationerand questioned _ _ about, the; occasion when he had delivered money, to - petitioner outside the bank. ‘Several pages of his 1962 feghimeny..¥ were, read to -him and. he. was. tlien aeked 3 (R, Dis a * -Bolttt Q. Neus I eatiarn: a stated that thie funds. | from this particular check you ay. today, was” . given to: Mr. Strauss, is that correct?’ , : - Optiies ott Me To the best of’ my. memory, this is the tare 7 Sek check im which ‘the funds were even to. Mr. .2 : Rurther: iviiap-eiidtinined as’ ae ‘this caceuinsiteet. ten _- Stated that ‘he could not connect it with any. particular check: He admitted that a deposit slip to the Bolton. account in the' Mercantile National Bank, dated Au-: . gust 27, 1957, for $15,000 was im his handwriting and _ indicated the | possibility or. likelihood that he ‘himself __ had deposited the, proceeds: of the ‘check i in the Bolton . account. “He testified similarly-to a check for: $21, 000 payable. to J eri. Bolton, dated August 29, 1957, and. . . another deposit slip in. this amount for the latter : Se date (R. 19-22) 00" a sae. p “ks hy oth ca ae i ip RE A la ie aright Rig ie ania . check to Jeri Bolton, dated August: 27, 1957, for $15,000. Low : had not stated at any:time, as asserted in. the question, that, the funds from this particular check had been paid to petitioner, bit - - had always testified that he could only stdte that a “pattern” ‘was followed, in which he would cash a check and deliver the- . proceeds as directed to one of three places, See supra, 5-6... - 7 * Low did not, as petitioner asserts (Pet. 9), change his story " after being confronted with the deposit slips. He had already consistent with his testimony at the 1962 trial : “(Tjhere were | a series of many,.many chécks” ¢(R. 10); “The proceeds. followed agajn,-as I said before, a certain pattern. The exact . eee of: any one check I cannot. tell yee, fapthtolly, hut; = a | a ; ys e ee ve . s ‘> lsetiRed’publiv’ aadountamt,testifed that he tind | 2 _aidited the books of rold Corporation. In the first , nine months of 1957 - irte checks in the amount of $15,000: or above were issued. “Only two were ‘cashed, a ee the foregoing checks: to Jeri Bolton in the amounts of. > $15,000 and’ $21,000-(R. 36-38). ‘Petitioner testified | that Lowat no’ time delivered $15,000 or any other ‘gum of money to him:. He stated ‘that he was in Colombia the biggest portion of 1957, but that he could tot be specific about dates (R. 101-102). . “A tourist card issued to petitioner and the certification of an |. “official, based on the tourist card, that:petitioner'was ee Colombia- from: August. 18 ‘to September 3, 1957, were exhibited to the court (R. 141-148)... a Yb) A handwriting expert testified | on behalf of panttcenio with respect to the purported endorsement o by. petitioner on Defendant’s Exhibit 11 (Govt. Exh. | ; A 51 at trial), an enlargement of a microfilm of a com- ee ‘pany check dated October 11, 1956, payable to peti- ‘call tell you the pattern” (R. 19); ; “J. gave it, whether for this - check ‘or any check, I gave Mr. Strauss $15,000. I don’t remem- © ber which check—* *-* I said it possibly could have ‘been this be check. * * *. ‘There were many checks and I don’ recall which | ‘onie it is, as it was seven or eight years'ago. * * * To the best : of'my mémory, it was in‘ late August * * * '7. _ was‘ just — | gbout the time these. checks were: produced ‘or ‘existence. There ‘were many, many’ ramifications and there rane aie - made, money: ‘withdrawn, checks cashed, and as Y'started to ex- ' pltin, you were reading the pattern’ of things—money ‘was taken : to the Western Union, taken and’ mailed to Rhodes Optical: ‘and other monies were’ given back ‘to him, and other monies. he gave © . ' to his ‘wife or to: Mr. Strauss. There were a ‘uimber of checks, or’ a series’ of. checks, there were diversion of this’ constant -routine” (R. 12-14).~ ‘He ‘also stated:'“[T]t had fo be at least = | Phiten ee eT gave | hiin ‘ thie in por” (R.' 18). : oceans taaAnS ep ethic + ~ : ° Pies. oe : a « 4 Pp ". m a : fe a: os ec : ‘%, r . ° b' * 4 ae m4 , . f : . 2 A / * % ‘ . : - we F % * ‘ : . ee \rr é ~. . s A . 7 ora ‘ . oh . ‘ dhs . Neteal in the siatunt: of $25,500 asin 4, 6, wii ? - also not made by petitioner (R. 63-71). . : (ey Petitioner. ee in. his preset ‘motion for a _ new trial a 126): | ecently, the defendant, ta ‘examining, _ His initial answer was somewhat equivocal.” ‘He later said that he did not consider. the endorsement genuine _ because of irregularities in the lines caused by the pen. . of the writer moving slowly, inadvertent motion habits— - of ‘the writer- differing from those of petitioner, and — . differences in the designs of letters (R. 52-54). For -. similar reasons he was of the opinion that the endorse- a ‘ments ‘ 5 . “ . . . } ; : 7 Pa ; - . : F . 4 . ‘ : le . * Bene: nan signature, Robert. Strauss of the. endorsement, ‘Defend q Uh Da ine . a 0 ‘o 5) mot ipsoail the existence of the document. untit ; _ recently ,found,>.a. copy -of said document: is _ attached hereto marked Exhibit Or and pende aan part, hereof. pra This document, dated. March 20; 1957, ‘and pti ag al eri, Bolton and Ray: Goodman, released petitioner. — from all claims arising out of, the tripartite agreement \ of petitioner, Goodman and Bolton, dated February 1, ._ 956." _ At the hearing, petitioner testified that he inated negotiating with Goodman in regard to Harold ._ _Corporation in late March 1956, that he was originally | Teleased. from, the corporation. March 4-or 5, 1957, re- joined the ¢ company so-that ‘he could properly. execute a mortgage to the Pan. American Batik on March 14, _ "1957, then finally got out on March 20,.1957 (R. 100, ~ 108).- Defendant's Exhibit 8 is a release. from the tri- : “partite ‘agreement and, Defendant’s . Exhibit, 9 is a . Felease hy, Harold Comoretian, both dated March 20, . 1957. &. 106). —_ ARGUMENT Abe : Ces ‘Under the’ cireumstances here, petitioner is : plainly nét entitled to a new trial on the ‘tn of the proffered evidence: °The district court did not abuse its disere- . tion’ in denying petitioner’ ~ motion, the decisions below . were ‘therefore correct, and. there is Ho occasion for : , seview by. this Court. = (a) The “newly discovered evidenve” does not show * “perjury. on thie -part of the. witness Low. This wit- . Ness testified at trial on direct examination that on a number of occasions Ke had cashed checks involving This agrecmét is set iit in full in the Fifth Cirouit’s ee see Pet. ‘App. 8-10. © i ae we e ra : . Se ee ; ‘éompany funds ai had: given the proceeds either to Goodman or to petitioner, or sent them to a geompany in. Atlanta, but that he could not connect these trans- _ actions with ‘any particular ‘checks. - On eross-exam- | ination ‘he recalled two specific occasions, one where ° . petitioner followed him to ‘the bank ,and received $15,000, or ‘more; the proceeds of one or more’ checks. ' When calleé by petitioner as a witness on. this’ mo- - __.) tion and told that he-had identified: this transaction _ . with a particular check-for $15,000 cashed: on August, * 27, 1957. (although there.was no ‘factual basis for this _sassertion), Low accepted: it as true. “However, he - promptly corrected. himself and reasserted his: trial testiniony : a number of times ‘before: he was | shown a deposit slip which indicated: the’ $15, 000 check was deposited to the Jeri, Bolton account (supra,‘p. 7).. .5 -Confusion thus induced as to details: grown indistinet, ‘ through: the passage of. years ‘patently “does ‘not ¢on- '" stitute perjury. Nor -do We read “the testimony: of ‘the accountant, called by petitioner, as excluding’ the possibility of: the: oceurrerice as’ originally’ testified ‘to: af In any event, evidence which is merely éumilative: or . impeaching re an insufficient basis. for’ the ‘granting’ - . of a new trial. ‘Mesarosh v. United States; 352° U8. 19s Ledet: v. United States, 297 FB, tg 73, 739 : —— Spt a Bi oe Petitioner's reliance on ‘tcatineak Reeds wax is tiieplesegl” th. f — in ‘the’ Court’s opinion ‘in that! case ‘it {s-expressly stated : ° -Ié-m be remembered’ that. we are’ not deating here . with a motion for a new trial. initiated by «the detense, © “ander Rule’ 33. of ‘the Federal: Rules. ‘of Criminal Proce- - dare, | presenting. un@@ithful” statements’ by ‘a’ Govertiment witness subsequent tothe trial’ as newly @iseovered'evi- . ‘ dence — his. ‘cgedibility at the ‘trial: Such’ efi ‘alle- : ~@ ‘incriminating checks introduced by the government." On the motion as originally filed, the validity of one of these enderseménts was contested ;. ‘by an.amend- _.. Inent, two additional endorsements _were questioned. -- The proper time for petitioner to have denied the © - executien: of these endorsements by expert opinion - testimony, or otherwise, was at trial. At best, this _ new evidence was impeaching in nature, and, as noted by the court below (Pet.. App. 4-5), did not ar show that any “forgery” had occurred. 3. The newly discovered release by Jeri Bolton and Ray Goodman, which was attached to petitioner’s new - - trial raotion, is meaningless on its face. Bolton, by. the admittedly: ‘genuine tripartite agreement, was a mere straw figure to. front for petitioner and Goodman in activities: in which they did, not. want their names . to appear. At the hearing an additional ‘and even - more newly discovered release- was presented which — was’ purportedly executed by the corporation on the same date. There was substantial evidence at trial that petitioner did not terminate his relationship. with | the’ company at any of the dates mentioned at one —— time or another by petitioner or upon any other date. . No evidence of. such - termination was (presented. . Moreover, even if petitioner had withdrawn from the corporation in March 1957, there: was ample evidence ‘gation by the defense ordinarily will’ not- support & motion @. new trial, because new evidence which is “nrely ulative or impeaching” is not, according to the ofter~ -Fepented statement of the courts, an adequate basis for the grt of a new trial: (352 US. at.9). 7 2 ** ® ‘18 PS, to support his conviction on the basis of transfers and” . concealment prior to that time. The offense here *' © charged could occur even before the corporation was. formed. Kaplan v. United States, 7 F. 2d. 594, 596 a (C.A. 2), certiorari denied,.269 U.S. 582... Cf. United. ~ _ States v. Rabinowich, 238 U.S. 78, 85-86; ‘Alkon v. . 3 United eng 163 Fed, 810 (C.A. 1). rae ey eet: ch he CONCLUSION ; pchad Ca Rete oo - s. For the foregoing reasons, it is reapectfully sab: - mitted that the petition for a writ of certiorari should be denied. ew gM ag ae , Seaoinin hea | 28 5.” Solicitor General. ages Sa ee Frep M. Vinson, Jr., ee. , ca | Assistant ‘Attorney General. : BEATRICE RosENBERG, ; | Kmor W. PatreRson, ; ~ \ pie : cr a * ef _ NoveMser 1966. ©... | : i : ~ w.s. coveansen PRINTING OFFICE: 1966 : peck a ii) ° : ( Pa ° a] F ST aren ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0063%3A2. Public record. Not legal advice.