Memorandum for the United States in Opposition — Taller v. United States

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" UNire Srares or AMERICA

ON PETITION FOR A WRIT OF OBRTIORARI TO THE UNITED

STATHS COURT OF APPEALS FOR THH SHOCOND OIROUIT |

MEMORANDUM. FOR THE UNITED STATES IN OPPOSITION

ERWIN N. GRISWOLD,

Solkoitor General, ; a

FRED M. VINSON, Jr., ‘

- Assistant Attorney General, =

: _« BEATRICE ROSENBERG, . é

gas re ‘ _ ROGER A. PAULEY, ,

: : Attorneys, BE

3 Depatiment of Justice,

¢ | Washington, DO. 20550.

| on ihe iii Gaur of the United Sites

OcTOBER TERM, 1968

No. 245.

HERMAN TALLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A. WRIT OF ‘CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIP

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

After a jury trial in the United States District

Court for the Eastern District of New York, peti-

tioner was convicted on three counts of misbranding

drugs, eight of forty-five counts of mail fraud, and

one count charging a conspiracy to commit those

offenses (18.U.S.C. 1341, 371; 21 U.S.C. 331.(a), (k); °

333(b), 352(a)).’ The court of appeals affirmed (394 F.

2d 435).

Petitioner ‘was the vlo-siebdicauliines of the “1961

best-selling book, Calories Don’t Count, which ex-+

1 Petitioner was tried alone. The indictment had been dis-

‘missed as to other co-defendants (three individuals and two

corporations), who had previously pleaded guilty and had been

~ fined. The’ individual co-defendants, -as well as several other

- witnesses, testified for the government at trial.

1

315-523—68 ”

2

pounded his theory that obesity could be cured, with-

out regard to caloric intake, by the ingestion of

safflower oil. As originally drafted, the book recom-

mended a dosage of three liquid ounces of safflower

oil per day, which petitioner had been prescribing

for his own patients. Before the book was published,

‘however, petitioner, with his co-defendants and others,

organized a corporation to market safflower oil cap-

sules. Petitioner then prevailed upon the publisher

to change the text so:that the recommended daily

« dosage would be six capsules, which could be obtained

from the new enterprise. The packages of capsules,

labelled ‘‘CDC”, contained a booklet identifying them

with petitioner’s ‘‘‘Calorie’s Don’t Count’ Weight

Control Program.” The six-capsule dosage’ contained

only 45 as much safflower oil as the liquid oil dosage

originally recommended and, as petitioner later ad-

mitted, was worthless as a cure for obesity even in

terms of his own theory (See Pet. App. 2-3). —

1. Petitioner’s principal contention is that there was

a fatal inconsistency in the verdict arising from the

jury’s findings of guilty on three felony misbranding —

counts and of conspiracy ‘‘as a misdemeanor.’’? With

respect to the drug misbranding counts, the trial

judge instructed the jury that it could convict either.

as charged (t.e. a felony) or, if it found that peti-

tioner had no intent to defraud or mislead, as a mis-

. demeanor (R. 4442-4443, 4474, 4484-4485) This ad-

mittedly proper instruction led to the court’s further

2“R.” refers to the transcript of proceedings at trial, ‘a copy

_ of which is on file with the <meets of this Court.

3 : ; i.

charge that, as to the conspiracy count, the verdict. _

should be guilty or not guilty, “‘except that if you con- -_

cludé that the defendant was guilty only of conspiracy

to commit the misdemeanor of one or more of * * *

.the Food and Drug counts, your verdict would take

the form; guilty as a misdemeanor’’ (R. 4506). This

instruction was necessitated by the second paragraph

of 18 U.S.C. 371, which provides: | .

If, however, the offense, the commission of ~ .

which is the object of the conspiracy, is a nuis- .

demeanor only, the punishment for such con- |

spiracy shall not exceed the maximum punish- ~

ment provided for such misdemeanor, |

Both courts below held that the apparent incon-

sistency in the jury’s verdicts, which was occasioned

’ by the nature of the charges in this case, did not in-

dicate that petitioner had been ‘denied a fair trial.

There is no cause for further _Feview, As the court of.

appeals observed, the jury ‘could have thought that

-with-respect to the conspiracy, it had to consider the

intent, not only of petitioner, but also of the other de-—

fendants, while on the substantive counts only peti-

tioner’s intent was in issue. There is no reason to be-

lieve that the jury did not properly perform its fune-

tion in determining petitioner’s personal intent, as to

; . the mail fraud and misbranding counts. — 7

In all events, the verdict does not differ materially

; from eases where this Court ruled that inconsistent

verdicts do not require reversal of convictions. L.g.,

Dunn v. United States, 284 U.S. 390; see United States

v. Dotterweich, 320 U.S. 277, 279. As the court ex- .

eu" e 7 os 4 4 pdr tR? PS

plained in United States v. Carbone, 378 F.2d 420,

422-423 (C.A. 2), certiorari denied, 389 U.S. 914:

The very fact that the jury may have acquitted.

of one or more counts in a multi-count indict- —

ment because of a belief that the counts on ~

which it was [sic] convicted will provide suffi- ©

cient punishment * * * forbids allowing the ac-

quittal to upset or even to affect the simultane-

ous conviction. * * * Indeed, if the rule were

otherwise, the Government would be entitled to

have the jury warned that an acquittal on some

counts might undermine a guilty verdict on

. others—almost the opposite of the standard in-

struction, which is obviously beneficial to crim-

inal defendants, and which the judge gave here

without objection. It is true:* * * that allowing

inconsistent. verdicts in criminal trials runs the

risk that an occasional conviction may have been

the result of compromise. But the advantage of

leaving the jury free to exercise its historic.

power of lenity has been correctly thought to

outweigh that danger. psa

2. Petitioner’ S general discussion of the Second Cir-

cuit’s decisions on the admissibility, of hearsay testi-

mony in a conspiracy case has no bearing on the dis-

position of this case. Although petitioner was tried _

‘alone, his concerted action with others in organizing

' the company and making changes in the book, and

the actions of other participants in the scheme, would

have had to be proved, even in the absence of a con- »

spiracy count. The addition of the conspiracy count did >

not subject petitioner to double jeopardy. Pereira v.

United States, 347 US. 1, 11; see Gore v. United

ee

: States, 357 U.S. 386; Callanan v. United States, 364

U.S: 587.: And since petitioner’s suspended sentence

on the: conspiracy count was concurrent with the sus-

pended sentences on -four of the substantive counts,

whicki petitioner does not challenge, the validity of the

conspiracy conviction need not be, reached. Hirabay-

ashi v. United States, 320 U.S. 81, 85; Lawn v. United -

States, 355 U.S. 339, 359; Umted States v. Goneg,

380 U.S. 63, 65.

3. Petitioner contends that it was prejudicial error

_to admit the government’s evidence discrediting the —

scientific validity of his dietary theory of use of poly-—

unsaturated fats to cure obesity. The argument is

based primarily on the fact that; at a pre-trial con-

ference on February 21, 1967, the Assistant United

States Attorney,- to whom the case had just been

assigned, stated that the indictment did not encompass

‘the question of the.scientific validity of petitioner’s

weight-reducing theory, but only whether the repre- .

sentations regarding the safflower oil capsules were

fraudulent in terms of petitioner’s own theory (Feb.

21 Transcript, pp. 3, 29-30, 32-34, 45).° The trial

judge and petitioner’s -counsel- expressed a contrary -

view, and’ defense counsel at one point indicated a

willingness to meet the broader issue should the gov-

ernment decide to raise it (id. at pp. 24, 29-34, 45).

The discussion ended: with no: ‘understanding maven

been reached (id. at pp. 45-46).

In his opening statement at tria} (on April 4, 1967),

~ A copy of this transcript is on file with the Clerk of this

Court. ,

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the proseeutor stated. that the government would ©

prove, inter alia, that petitioner’s basic dietary theory

' was invalid (R. 8-9, 28). The first such proof was not

offered until seventeen days later, through one of

three expert witnesses who testified on the question.

At no time did petitioner request a continuance to

enable him to prepare. his defense on this issue. The

defense called more than twenty former patients of |

petitioner (some of whom were doctors), who ex- |

pressed satisfaction with his weight reduction treat-

ments, and petitioner himself testified in support of |

his basic thepry..

The courts below correctly held that the admission

of. the government’s expert testimony was not error.

As the court of appeals found (Pet. App. A, p. 5),

the indictment, fairly read, ‘‘does put the validity of

[petitioner’s] theory..in issue.’’ The government was

not estopped from introducing evidence challenging

petitioner’s underlying dietary theory by the discus-

. sion at the pre-trial conference reflecting a disagree-

ment as to the interpretation of the indictment. And

the record shows that petitioner was not unfairly

surprised or unable adequate(yto prepare his defense.

Petitioner also argues (Pet. 30-31) that the expert

medical testimony: was inadmissible or was admissible

only with cautionary instructions since it was not based

upon a “‘universality of scientific belief’? (Reilly v.

‘Pinkus, 338 U.S.-269, 276). In Reilly,.where the evi-

« dence was offered to prove fraudulent intent, the Court

held that .it was error to limit the cross-examination

of the government’s expert witnesses because the ab-

@

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sence of a ‘universality of scientific belief ”? was rele-.

vant to whether an inference of such intent could

properly be drawn from the evidence. In the present

case, as the court of appeals noted (Pet. App. A, p. 6),

the ‘‘testimony was introduced only to establish that ”

‘ the advertising claims made for [petitioner’s diet]

were scientifically false and was admissible for this

purpose.’ United States v. Andreadis, 366 F. 2d 423,

433 (C.A. 2), certiorari denied, 385 U.S. 1001.

4, With respect to accomplice testimony, the court

gave the following instruction (R. 4497-4498): -

An accomplice does. not become incompetent »

as a witness because of his participation in the

criminal acts charged. On the contrary, if the

only evidence on some or all of the essential

elements of any cofnt is the testimony of an

accomplice, it may still be of sufficient weight,

if you believe it, to sustain a verdict of guilty .

without corroboration in or support of other

evidence.

Yet, b ar in mind that accomplice testimony

is to be received with caution and weighed with

eare. You should ‘not convict on unsupported

accomplice testimony unless you believe that

testimony beyond a reasonable doubt. _ .

Petitioner contends that the foregoing instruction

constituted “‘plain error,”” under Holmgren v. United

States, 217 U.S. 509, because accomplices furnished

all. of ‘the arguably inculpatory evidence against him

+ on the issue of ‘guilty scienter (Pet. 31-37). This con-

tention rests primarily on petitioner’s unfounded as-

sertion that several of the government’s more damag-

ing witnesses, such as the representatives of the

8

publisher, should be classified as ‘‘accomplices’”’ in

addition to his co-defendants (Pet. 32). In all events,

Holmgren held only that it was the ‘‘better practice,”’

although not required, for courts to instruct that the

testimony of accomplices should not be credited:in the

absence of corroborating evidence. Petitioner made no

request for such an instruction. His attempt to mag-

nify what was at most a failure to adhere to “‘better

practice’’ into plain error warranting reversal is with-

- out merit. Holmgren v. United States, supra; Cami-

netti -v. United States, 242 U.S. 470, 495.

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied. .

ERWIN N. GRISWOLD,

Solicitor General.

FreD M. VINSON, Jr.,

Assistant Attorney General.

BEATRICE ROSENBERG,

Koger A. PAu.ey,

Attorneys.

Avaust 1968.

GS, GOVERNMENT PRINTING OFFICE: 1968