Petition for Writ of Certiorari — Donoho v. United States

Supreme Court brief1968

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SUPREME COU oe 1144 FEB 23 ls

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— SUF DAVIC, Ci

‘IN THE

- SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1968.

WILLIAM J. DONOHO, -

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

_ PETITION FOR A WRIT OF CERTIORARI

_ To the United States Court of Appeals for the :

_. Sixth Circuit, — ane

JOHN J. HOOKER,

900 Nashville Bank & Trust Building,

Nashville, Tennessee,

_ . QUENTIN HOUSHOLDER, . i

* $tahiman: Building, |

Nashville, Tennessee,

Ps Attorneys for Petitioner.

HOOKER, KEEBLE, DODSON & HARRIS,

Counsel.

8. Louis Law PRINTING Co., Inc., 411-15 N. Highth 8t., 63101. CEntral 1-4477.

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INDEX.

B Page

EE Sih aeeannad snag varesiseuececdcceudeacetesse =

Opinions below ..:...........+e.e0e, veerwcns - ne oe in 7

Jurisdiction MReereueecceeiaetsuisae cavedatazeee oe ]

- Questions sania MS PR PR eu Feo pe bakns PRON 2

Statute ree Nthevecebescveseetaes 3

Statement of the case ........... 005. Sptatcaesbes 4 ‘|

Reasons for granting the WHit .........0icciccceees <a =

Conclusion ..... Cen ORIG Ree PER SPARE veh oe 16 =

_ Appendix of relevant orders: |

Judgment and commitment filed November 21, _

1966.in the United States. District Court for the

Middle District - of Tennessee ........... inane. ae 3

Opinion of the District Court filed N ovember 29, .

WE noe aes ch alewe sh chewed saunseusaceee een 18

Opinion of the United States Coust-of Appeal for

the Sixth Cireuit, decided ‘January 24, 1968 23

isi Cited. | “~ .

Edwards v. United States, 265° F. 2d. 302, 308 (9th |

Ae aie kbs 5 id os Hn atne oo eb has edb wddde sas 15

Fowler v. United States, 352 F. 2d 100, M3 2 (sth Cir, —

ME Tee eee Pree Pee eee ee Oe 12 .

; Gariepy v. United ms, 189 F. 2d 459, 462 (6th .

Se IO ET a cen EI ater Dae Ss da eR I Ie 8,9

Graves v. United States, 150 U. S. 118, 121, 14 8. Ct.

40, 37 ts EA. 1021 (1893) ........ Pteebedendeess “11

ie eaten.

Hirabayashi v. United States, 300 U. S. 81, 85 (1943) 13

Holland v. United States, 348: U. S. 121, 75S. Ct. 127, ;

. 99. L. Ed. 150 (EINE) cosesvesseeeccsesesecerves 9.

Kampmeyer v. United States, 227 F. 2d 313, 317 ase

Cir,’ hasan Fence elec cere cece eee e sete cet apteeees “9

BN choses cane ae ss dias ee n

Morei v. United States, 127 F. 2d°827 (6th Cir. 1942) | 11

Remmer v. United States, . 205, F. 2d 277, 287 (9th

Cir. 1953) puven tures pe Pcnwrtewndnudes evden ss 9

Smith v. United States; 234 F. 2d 385, 389 (5th Cir.

SPUN tttenakhngundusdiocedas cute dbikceks aces 11

Smith v. United Statés, 239 F. 2d 168 (6th Cir. 1956) 9

United States v. Barash, 365 F. 2d 395, 399, 403 (2nd

ORE BE five. 14

United States v. Bottone, 365 PF. 2d 389, 394 (2nd Cir.

. See Pe, Pe Te Pe: HRA NT aT 14

‘United States v. Hines, 256 F. 2d 561, 563 (2nd Cir.

We dbase GEE ONE Penn ea I by <a 14

United States v. Jackson, 257 F. 2d 41 (3rd Cir. 1958) 11

United. States v. Jett, 352 F. 2d 179, 183 (6th Cir.

1965) oe Ne wuuasb ends (veer 14

United States v. Moody, 339 F. 2d 161° (6th Cir.

So sed rt ecenpesion piace ee 6,7,10

Statutes Cited. :

26 U. 8. C., See. 7206 ee er 1,3,4

28 U. 8. C., See. 1254'(1) ....... Mee D

_ eee

IN THE

SPREE COURT OF THE UNITED STATES.

OCTOBER TERM, 1968,

WILLIAM j DONOHO, -

* - Petitioner,

VS,

~ UNITED STATES OF AMERICA,

_ Respondent

* PETITION FOR A WRIT OF CERTIORARI °

. To the United States Court of Appeals for the

- Sixth Circuit.

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

Petitioner, William J. Donoho, prays that a writ of

certiorari issue to review the order and judgment entered

by the Court of Appeals for the Sixth Circuit on January

24, 1968, affirming a judgment of the District Court for

the Middle District of Tennessee, sentencing petitioner to

a period of 15 months imprisonment of each of 5 counts

of an indictment and to a fine of $500.00 on each count.

The sentences of 15 months on each count are to run con-

currently. Petitioner was indicted in the District Court,

under a 5-count indictment, for violation of 26 U.S. C.,

=! ee

Sec. 7206 (1), in that he willfully subscribed to a false :

| ao income tax return for. the years 1957, 1958, 1960, 1961, and -

ii 1962. He was convicted upon jury. verdict.

OPINIONS. BELOW.

. The District Court filed np formal opinion, However, MA

the remarks of the ‘District Judge in overruling defend-

ant’s motion for a new trial, were ordered transcribed by -— |

the court reporter, and the District Judge ruled that they

would constitute the order of the Court in overruling the

motion for a new trial. This order was entered November

29, 1966. The Court of Appeals ‘for the Sixth. Circuit de-

livered an opinion: affirming the judgment. of the Trial

Court on January 24, 1968. It is from this judgment that

petitioner ask this Court to grant a review by writ of

certiorari. In ‘compliance with Rule 23 (i)' of this Honor- :

able Court, copies of the opinions of the District Court _

and of. the Court of Appeals may be found as an appendix

|. + to this petition.. The: District’ Court’s order of ‘‘Judg-

ment and Commitment” is also appended. ,

| _,... ‘JURISDICTION.

. !

The judgment of the Court of: Appeals was entered on

January 24, 1968. An order has been entered staying the

mandate of the Court pending the filing of this petition.

oe by the Rules of this Honorable Court, specifically Rule

_ °@ 42 (2). The jurisdiction of this Court is invoked under”

: : the provision of 28 U.S. C., See. 1254 (1). :

_ QUESTIONS PRESENTED. oo

The questions presented fer review by this Court are

as follows: : | cee:

1. When the Government attempts to prove a criminal

__ violation of Internal Revenue Code Sec. 7206 (1) by the

This petition has been filed within the time prescribed.

“ ane Ae Mas TDi cia Bib OI Be LS wan oA

‘‘specific items of income’’ method alore, having aban-—

‘ doned immediately befcre trial its declared intention to

corroborate for two of the indictment years by the ‘‘net

worth increase plus expenditures’ method, whether the

.. defendant should be allowed fo prove as a: defense to

_ these counts; of the -indictment, by competent witnesses,

charts and summaries, his own net. worth computation, to

. show, as a defense, that no additional income was re-

ceived other than that reported. .

| 2. Whether defense counsel should be allowed to com-

Ment, in closing argument to the jury, on the. Govern-

6 ment’s abandonment of. ‘‘net worth and expenditurés”’

computations for two out of five indictment years, the --

Government, having before declared, in six bills of par-

ticulars, its intention to use this proof for corroborative

- purposes, z <n :

| = + STATUTE INVOLVED.

The only statute involved is that for the violation of

which petitioner was convicted, Title 26 U. 8. C., Section

7206 (1), Internal Revenue Code:

Any ‘person who—

(1) Declaration ‘under penalties _ of perjury.—Will-

fully makes and subscribes any return, statement, or

other document, which contains or is verified by a

‘<7 Written declaration that it is made under the penal- -

. ties of perjury, and which he does not believe to be

true and corrget®as to every. material matter; . . . ‘

_ Shall be guilty of a felony and, upon -conviction

thereof shall be fined not more than $5,000, or im-

-cprisoned not more than 3 years, or both, together

_ with the costs of prosecution. © Ct }

STATEMENT OF THE-CASE..

Petitioner was indicted in the “United . States -District

Court, Middle District of Tennessee at Nashville, under a

five count, indictment, for violation of 26 U.S. C., See.

7206 (1). in that he willfully subscribed to a false income

tax return for the years 1957, 1958, 1960, 1961, and 1962.

The case was originally. set for trial, on petitioner’s plea

of not guilty, on October 5, 1964. ilk trial resulted i in a

mistrial ‘on October 7, 1964.

A bill of particulars was filed by the eeceieieis on June —

30, 1964: Amended Mills of ‘particulars were filed on the

following dates: August 27, 1964; September 29, 1964;

November 9, 1964; May 18, 1965; October- 6, 1966; ‘nn

Cctober 21, 1966, The last bill of particulars was. filed on

a Friday before the trial was to begin on Monday, Oc-

tober 24, 1966. In the six separate bills of particulars filed

by the Government from June 30, 1964 to October 6, 1966,

the Government declared its intention of proving false

tax returns for defendant, for at least. two of the indict-

ment years, by the “net worth plus expenditures’”’ methed.

Then on October 21, 1966, in.its seventh and final bill of.

particulars, the Governnient totally abandoned! any state-

ment to the effets that the Government would use net

worth proof. -

‘Trial was ple begun, and the Government at-

tempted to prove its case by the testimony of a number of

law violators in the Nashville area, who were engaged in

the business of prostitution, illega¥ gambling, and illegal

sale of whiskey. These law violators testified that they

had given payoffs directly or indirectly to the defendant

' during the indictment years. These payoffs were said to

be made for police protection and were made while the

defendant was a high-ranking officer in the Nashville police

force. :

The parties stipulated, among other. matters not here

is important, that none of the income reported on the tax

returns for the indictment years came from the law viola-

tors in the form of protection payments, and that the tax

returns for the ‘indictment years did not reflect receipt of

any such income by the defendant. >

The defendant took the stand in his own behalf and de-

nied that he had ever taken payoffs or protection money.

He introduced a number of witnesses whose testimony re-

flected unfavorably on the character—or the reputation

for truth and veracity—of some of'the Government? S wit-.

nesses. amar 3

The defendant then offered to sinitite, thréugh his

accountant and other disinterested “witness, a computation

of net worth and expenditures for®the defendant for the

indictment yeags. 1960 and 1961, and evidence to support

these figures; in addition, there was also offered the testi-

mony of the defendant himself as to some of these figures. .

This offer of proof was denied by the District Court. The

defendant then produced | some good character testimony

and the Government put on a few rebuttal witnesses. At

the close of the proof, the defendant, through his counsel,

- informed the Court that he was ne his offer to pro-

duce net worth and expenditures, and, in addition, that

he intended to argue before the jury that the Government

had abandoned its intention, as stated®in the first six of

seven bills of particulars filed in. the cause, to. show by

corroborating proof extra income received for the years

1960 and 1961 by the net worth and expenditures method.

The Court refused to alléw defendant’s counsel to argue

this abandonment by the Government of its former posi-.

tion.’ . Re @, - @.

. Defendant was convicted upon a jury verdict upon all

counts of the indictment, and received a sentence of 15-

‘months imprisonment on each count, the sentencessto run

concurrently. Defendant. was also ordered to pay a fine of

$500 on each count, or a total of $2,500.00. ,

Notice of appeal was subsequently filed to the Sixth Cir-

cuit, Court of Appeals, and upon briefs and argument of

counsel, the judgment of the District Court was. affirmed

on January 24, 1968. It is from this judgment, that defend-

.ant presently.seeks a writ of certiorari from this Honor-

able Court.

REASONS FOR GRANTING THE WRIT.

1, The opinion of the Court of Appeals is in. conflict with

its opinion in the case of UNITED STATES v. MOODY,.

339 F. 2d 161 (6th Cir. 1964). : , :

At the close of defendant’s own testimony, his counsel

‘offered to prove by a net worth computation that the only

taxable income received by the defendant during ‘the: in-

dictment years 1960 and 1961 was substantially what he

reported on his income tax returns for those years—or

at least that he received no more income than that. which

he reported (Official Transcript—hereinafter, “<Tr.’’—pp.

x 905-515). This he proposed to do by offering the’ testi-

mony of Mr. Raymond J. Foust, @ Certified Public Ac-

countant, and certain charts and summaries of calcula-

tions prepared by Mr. Foust; the testimony of other

disinterested witnesses (the record will show that they

were already under subpoena) as to expenditures, ' dis-

bursements, and assets of the defendant during and at the

and the testimony of the defendant himself. What, .in

essence,. he proposed was a defense or a rebuttal of the

case of the Government by a different method of proof

than that used by the Government. The defendant at-

tempted to do what he had a right to do: establish as a

defense that he owed po tax in addition to what he had

_ beginning and ending pojnts of ‘the periods in question; -

a uae

paid on his returns, and so did not willfully swear to a

false return. United States v. Moody, 339 F. 2d 161 (6th

Cir. 1964). Tey 1 . we

Petitioner submits that the Moody case was controlling

in his appeal and for this reason alone a reversal of the

District Court judgment was required. In Moody, the

“Government attempted to prove its-case by a ‘‘bank de-

posits’? method, closely similar to the method of ‘‘specific |

items of income’’ that was used by the Government in the

instant case. The Court of Appeals held:

Taxpayer-defendant’s proffered proof consisted in

part of a purported net worth study covering the four

years involved. The trial court took the view that

this case was a bank deposits case and that a net

worth computation was irrelevant and therefore in-

admissible, except for the purpose of showing lack of

willfulness. But the terms ‘‘bank deposits case’? and

“‘net worth case’’ are not descriptive of the case it-

self. The case itself is a willful. tax evasion case.

_ The two quoted terms are descriptive of methods of

computation. Either can be used by either the Gov-

ernment or the taxpaper as a means of computing in- ..

come. The use of one method of computation by one

party does not foreclose the use of another method

by the other party.. The trial judge was in error in

his view in this respect. :

339 F. 2d at 162.

While the indictment in Moody was apparently based

upon Internal Revenue Code Section 7201, and the indict:

ments in the instant- case were based upon Section 7206

(1), under both sections there must be an incorrect state-

ment of income received and a consequent deficiency in

tax. A violation of either section can be shown—as the

‘ Government attempted to do in the instant case—by evi-

dence of the receipt of income that was not reported.

a ee

Petitioner submits that the following is a fair summary

_of the reasons, given by the District Court in disallowing

net worth proof by the defendant:

(1) The proof would include the testimony of the de-

fendant, whose credibility is already at issué since he

denied receiving any bribes; therefore the proof would

have no probative value (Tr. pp. 507-508).

(2) A stipulation was entered into before the trial

which states as follows: ‘‘The parties further stipulate

that none of the income reported on these tax returns by

the defendant, William J. Donoho, and wife, came from |

law violators in the form ‘of protection payments and the

tax returns do not reflect receipt of any such income by

the. defendant”’; this stipulation formed the only i issue in

the case, that being whether or not the defendant’ re-

ceived any bribes in the indictment years (Opinion of

District Court, pp. (2-4). .

As to the first reason, the District Court erred in that

it ‘‘appears to confuse the function of the court with that

of the jury.’ Gariepy v. United States, 189 F. 2d 459,

462 (6th Cir. 1951). What inferences may be drawn from:

| the fact that the same defendant who testifies as to cer-

tain expenses has also testified that he did. not receive

bribes are for the jury to draw and not the court. To

assume that net worth proof based partially on the de-

fendant’s, testimony is not probative is to assume that _

‘defendant’s testimony is unreliable, that he is going to

lie under oath. Of course, the direct opposite is the as-

sumption; that is, that ‘the defendant, like every. witness,

is going to tell the truth. No doubt the Government’s

investigation in a case of this nature can produce state-

ments or admissions of the defendant that would make .

good fodder for cross-examination and serve to reflect

upon the accuracy of his testimony. The District Court’s

first objection, then goes to the weight of defendant’s

‘

testimony—the sole ey of the jury—and not to its

admissibility.

‘There is always an element of reasonable doubt in a net

worth case becduse all expenditures and disbursements ,

, cannot be accurately accounted'for. This fact was recog-

nized in the leading net worth case of Holland v. United

States, 348 D. S. 121, 75 S. Ct, 127, 99 L. Ed. 150 (1954),

when this Court refused to require the Government to

negate every ‘reasonable explanation of the taxpayer as

to cash on ‘hand or expenditures inconsistent with guilt.

Summaries and estimates used by the Government have

been ruled permissible; and when coupled with certain

accurate evidence and based upon this evidence, they

will sustain a net worth prosecution. Kampmeyer v.

United States, 227 F. 2d 313, 317 (8th Cir. 1955); Remmer

v. United States, 205 F. 2d 277, 287. (9th Cir. 1953);

Gariepy v. United States, supra; Smith v. United States,

239 F. 2d 168 (6th Cir. 1956).--To-allow the Government

___to-sustain-a net worth case with some lack of accuracy or

some gaps in calculations, but-to deny the same as a de-

fense where the only “gap”? is the credibility of the de-

fendant himself is surely to deny that defendant the. equal -

protection of the laws guaranteed him by the Fourteenth

Amendment.

As to the District Court’s second reason for disallow-

ing this proof, it is submitted that the stipulation has

changed nothing in regard to what the Government must

prove to sustain its case. The defendant signed ‘tax re-

turns, under oath, that stated a certain amount of i income

from certain sources—and a tax was paid on that i income.

He swore that this was all the taxable income he received.

The stipulation is that no bribes (if any were received)

were reported as a part of that income and that nothing

in the return reflects the receipt of any bribes; this fact

is taken as proved; it is admitted by both sides. If, in-

addition, the Government alleges that bribes were received

rey

<< mn

that were not reported on the tax returns, the defendant

is not precluded by that stipulation from denying receipt

of bribes by all competent proof. If he had received such

bribes, presumably they would show up on a net worth

“study. Such a study would either show additional income

not reported or mia what was reported. Appellant

submits that the latter résult would be accomplished and

that he is entitled to so prove. —

It is submitted that by virtue of the holding ‘of the

Court of Appeals in United States v. Moody, : supra, and

the foregoing reasons supporting the allowance of defend-

- ant’s. offer of a net worth study, the decision of the Court

of Appeals must be reversed and the cause remanded for

a new trial.

2.The District Court refused to grant petitioner his

right to call to the jury’s attention an important infer-

ence—indeed a PRESUMPTION—to be drawn from the

Government’s failure to produce certain proof peculiarly

within its power.

In six (6) Bills of Particulars filed be the Government

from June 30, 1964, to October 6, 1966, the. Government

declared its intention of proving false tax returns for the

defendant, for at least two of the indictment years, by —

the net worth plus expenditures method. ‘Then on Octo-

ber 21, 1966, on a Friday before the trial was to begin ‘on

< , Monday, October 24, the Government filed its seventh and

"Sil Bill of Particulars. ‘That Bill of Particulars totally

abandoned any statement to the effect that the Govern-

ment would use net worth proof. It is appellant’s con-

tention that defense counsel was entitled to argue that the

inference could properly be drawn that net worth proof

would be unfavorable. to the Government, and that thee

Government abandoned it for this reason. This is proper _

argument and defendant was entitled ‘to assert it, par-—

ticularly in view of the Distriet Court’s refusal to allow

—

defendant to introduce his own net worth study. It is

proper argument under the theory that a party may com-

ment to the jury on the adverse party’s failure to produce

a. witness whose testimony would shed light on a particu-|

lar transaction; the inference is that the witness’ testi-

mony would not be favorable to vee party who failed to

produce it.

The rule, even in criminal cases, is that, if a party

has it peculiarly within his power to produce wit-

nesses whose testimony would elucidate the transac-

tion, the fact that he does not do it creates the pre-

sumption that the testimony, if produced, would be

. unfavorable. “

Graves v. United States, 150 U.S. 118, 121, 14 -

S. Ct. 40, 37 L. Ed. 1021 (1993).

More recent cases, such as Smith v. United States, 234

F. 2d 385, 389. (5th Cir. 1956); and Lawson v. United

States, 248 F. 2d 654 (D. C. Cir. 1957), reiterate this rule.

In United States v. Jackson, 257 F. 2d 41 (3rd Cir. 1958),

it was held error for the court to refuse to allow defense

counsel to argue that the Government failed . to. produce

an informer who apparently had helped i in the building of

the Government’s case. |

In Morei v. United States, 127 F. 2d 827 (6th Cir. 1942),

a nareoties prosecution, Government agents induced a

man named Sargent to act as.a ‘*‘plant’’ to produce some

evidence on one of the defendants. At the trial there

arose a dispute as to the gist of the conversations that

the defendant had with Sargent. Sargent‘was never pro-

duced by the Government. In reversing the conviction,

the Court of Appeals noted at 830:

It may be observed that the failure of the govern-

ment to call Sargent, a most importaut witness in

view of the disputed testimony, was unexplained, and,

eee PGS

BO i Sia BL ce sit eee! va Ptah ~ “ bc ts

—12—

under the circumstances, every inference must weigh

‘against the contention of the poverampent on this

"-phase of the case:

Admittedly, if the sides whigh the iiiaiaiaas

failed to produce is available to both parties, defense

counsel’s drawing of unfavorable inferences would have

little, if any, merit ‘because the. Government could well -

ask why defendant did not himself put'on that proof. The

following quote from Fowler v.- United States, 352 F. 2d

Nowhere is there authority for the proposition that

the government must prove its case by every possible

method. True, the government did indicate to ap-

pellants that it intended to utilize bank: ‘deposit anal-

_ysis at trial. However, it is not claimed by appellants

that the failure by the government to do so was

prejudicial to them. -In fact, the appellants had ac-

cess to the government’s bank account analysi$ and

= to the documents making up such analysis. If vital

- to their defense, appellants could have ‘presented this

evidence themselves since the evidence was - equally

available to both parties. (Emphasis supplied.)

However, the corollary of this proposition is equally true

—that is, that where the evidence is not available to one .

party, the unfavorable. inference against the party who

could produce it is proper. The evidence of a net worth

study was not available to the defense in the instant case

because the District Court would not allow defendant to

produce it. And, of course, the jury could riot know of

proof.

The Fowler case, in fact, appears to agree with appel-

note at 112:

We concur with the following from IT Wigmore on

Evidence, 3d Ed., Section 228, pp. 169- 171, feeling

——

Pa a eases ae Khowsa ibn: Sar

that it applies to failure to. produce evidence as well

. as to failure ‘to call witnesses:

“Tt is commonly said that no inference is allowable

where the person in. question is equally available to

both parties; * * * the more logical view is that the

“failure to produce is open to: an inference against

both parties, the particular strength of the inference

’ agaimst either depending on the circumstances. ’’

fc. - i»

A. supplemental . question, which the Government:

brought to the attention of the Court of Appeals, but

‘which was never reached by the Court of. -Appeals, was

whether when there are error-free. counts of a multi;

count conviction, and a defendant receives concurrent sen-

as tences on each of these counts, his conviction should be.

affirmed.even though there is error in some of the counts.

_ Petitioner insists that if he had been allowed to prove

his net worth and expenditures for the years 1960 and

1961, and had been allowed to argue the Government’s

abandonment of this proof for the same indictment years,

he could have shown to the jury a break in the ‘‘pattern’’

of apparent evasions ovér a number of consecutive years. |

If a defendant can destroy, or show facts that would tend

to discredit, the testimony of a number of law violators

for at least two of the indictment years, -there is a strong

possibility that a jury would find the testimony of these

law violators without credit for the other indictment

years. The error involved, then, cannot be limited or iso-

lated to the counts involving the years 1960 and 1961; in -

fact, some witnesses who testified against the defendant

for the indictment years 1960 and 1961 also testified

against him in other indictment years.

The foregoing proposition is not inconsistent with the

cases of Hirabayashi v. United States, 320 U. Ss. 81, 85

(1943), United States v. Jett, 352 F, 2d 179, 183 (6th

Cir. 1965), cited by the Government in its brief before

the Court of Appeals. These. cases did. not involve some

of the factors that are a part of the instant case.* For

instance, in the, Jett case a.non-jury case, there is no

indication that error on two counts had any ‘‘spill-over’’

effect on the error-free count.’ Since the Court of Appeals

held there was no error at all in Jett, it was not required

to comment upon what effect error had on the faultless:

count. Also Jett, unlike the instant case, was concerned

with sufficiency of evidence on two, out of three counts—

the indication being that one count could stand alone on

its own evidence. A close examination of Jett truly does

indieate that, there was no ne evidence into the

good count.

The proposition of ‘onestamiinn?® or ‘ epill-over” is-,

more definitely set forth in United States v. Hines, 256 .

F. 2d 561, 563 -(2nd Cir. 1958), and United States v.’Bot- |

tone, 365 F. 2d 389, 394 (2nd Cir. 1966), that Court stat-” ”

' ing that ‘‘we will reverse for a material error on another

‘count ‘whenever the nature of the error committed below

or other circumstances suggest that the accused might

have received a longer sentence than otherwise would

have been imposed, or that he ‘has been prejudiced. by.

the results of the proceedings.’’’ In the Bottone case,

the Court indicates that, for it to affirm, there must not

be any doubt that a conviction would have been sustained

on the good count had it been standing alone.

United States v. Barash, 365 F. 2d 395, 399, 403 (2nd

Cir.’ 1966), states that ‘‘the doctrine of one good count

is not a fetish’’: .

"We are far from being certain that: the rectiitien

and deprecation of the impeachment of Clyne, the

chief Government witness, and the admission of the

Lupescu hearsay statement in the testimony of Coady,

ae. are

the undercover agent, did not have a spill-over effect

on the DeSibio counts; that the jury might have.

’ exercised its prerogative of leniency if these charges

- alone had been ‘before it; or that the judge would _

have given the same sentence for convictions on these

two aiding and abetting* counts. as he did for those”

on the twenty-six, including convictions for bribery.

Applying the rile of United States v. Hines, supra, -

256 F. 2d 561, we think our duty to ‘require such

further proceedings to be had as may be just under

the circumstances,’ 28°U. S. C., Sec. 2106, demands a

reversal and a remand for a new trial.’’

Some cases have. stated the proposition | in terms of

oe error’’. Iii Edwards v. United ‘States, 265

F. 2d 302; 308 (9th Cir. 1959), it was held:

. “In reversing the judgments entered. in this case

and remanding the . ease. to the district court for

a new trial, we’ are mindful. of the general , Tule

, Stated in Kiyoshi Hirabayashi v. Mnited States,

320 U. S. 81, 63 S: Ct, 1375, 87 L. Kd. 1774; Fisher

_N. United States, 9 Cir., 254 F. 2d. 302, and many

other cases, that where .a defendant is convicted

on several counts of an indictment and the sen-

tences are ordered to~run concurrently’ it is unnec-

essury on review to-consider the validity of the

_ sentences on all counts if the sentence on one of them

is sustainable. This rule, however, has no application

to this case for the reasons hereinabove set forth.

The principle of law.on which we rely is set, forth

_in Wolcher v. United | States, 9 Cir., 200 F. 2d 493, .

to the effget that where a reviewing court cannot say -

that a.judgment of conviction was not substantially

swayed by error it must conclude that the errors are

not. harmless. Our view of this case was well stated’

in the Wolcher case at page 500, as follows:

g we

“We eannot say‘ that these errors are those

which ‘‘(do) not affect substantial rights’? and

< hence that they should be disregarded. The

| errors here listed require a reversal since in our

judgment ‘‘the error might have operated to

the substantial injury of the defendant.’’ United

| States v. Grady, 7 Cir., 185 F. 2d 273, 275.7 a

}

\_. .To hold exceptionless the -doctrine of one good count

would be to approve this situation: One faultless count

can save -a trial court from the embarrassment of re-

versal if it merely Passes a concurrent sentence on both

the good and bad counts. This situation would inevitably .

bring about an easing of strictness on proper procedure,

since a trial court can simply correct error by passing

concurrent sentences, | ty. :

CONCLUSION.

For the reasons stated, it is urged respectfully that the °

writ of certiorari to the Court of Appeals for the Sixth

. Cireuit be granted and that. the decision of the Court of

“

Appeals be reversed. y

Respectfully submitted,

JOHN J. HOOKER, ° .

900 Nashville Bank & Trust

Building,

Nashville, Tennessee,~

QUENTIN HOUSHOLDER,

Stahlman Building, |

* Nashville, Tennessee,

Attorneys for Petitioner,

HOOKER, KEEBLE, DODSON & HARRIS,

Of Counsel. :

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