# Memorandum for the United States in Opposition — Taller v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1573%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum for the United States in Opposition - **Published:** January 1, 1968 - **Citation:** 393 U.S. 839 ## Text we TISRARY. Bey he PAB i oa eg hy can 4 No. a | : ~ . te Supreme Cour of he Gite States S Race ae Ocrossr Taam, 1968 Hamas Tau vec ONER Seasons.) hs 2 ee eR ——$—$—$—— " 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 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. , 6 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- @ 7 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1573%3A3. Public record. Not legal advice.