# Petition for Writ of Certiorari — Donoho v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1968
- **Citation:** 390 U.S. 1014

## Text

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SUPREME COU oe 1144 FEB 23 ls
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‘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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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

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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; -

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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.

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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

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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

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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. |

e

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,

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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

©. 10Q, 112 (8th Cir. 1965), illustrates this analysis:

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
this refusal of the Court to allow it to introduce net worth ©
proof.

The Fowler case, in fact, appears to agree with appel-
lant’s position in the case at bar when it states in a foot- ©
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

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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. ’’

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|

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

ag

(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,

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1273%3A1. Public record. Not legal advice.