Petition for Writ of Certiorari — Fidanzi v. United States

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SUPREME COURT. U. & ae a

| 52 \ - AUG 27 1969 >

No. ear s : = m

memyenente A'S, CLERK

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ee ae) - In the

ea Supreme Court of the United State

plc, oan i, es | By Sohne —_— 1969 ~

GUIDO FIDANZI, | ae ae ae

Pivde ae : Petitioner,

Vs,

UNITED STATES OF AMERIVA,

| ies Respondent. ‘

..\ PEGITION FOR WRIT OF CERTIORARI

$f? _ _ TO THE UNITED STATES COURT OF APPEALS

en FOR THE SEVENTH CIRCUIT

| ce

| GERALD. M. WERKSMAN

JULIUS LUCIUS ECHELES

30 North\LaSalle Street

Chicago, Illinois 60602

Attorneys for Petitioner.

a | .. UNITED STATES LAW PRINTING c0., CHICAGO, ILLINOIS 60618 (312) 525-6581 | °

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INDEX

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5 Judgment and Opinion of the Court Below .......... ee. 2

: Jurisdictional Statement. aemae ee | cm

— Question Presented for SRevicw ieeiaciad i Pb oa ive Naa 2

"Statutes Involved: saimipiewianiis seseginsensegensngiee cep tenaaakes an

Statement of the. Case ........ ie en TC ree | 3

Reason Relied: on for Granting the Writ ....... ae ;

1. . The attack of the prosecutor upon the char-

acter of the defendant in his opening and clos- ~.

_ . ing statements—referring to him as a con-man,

a swindler and extortionist—when the character.

of the defendant was not in ‘issue was so preju-

dicial’and so improper that the \court erred in

~ not: declaring a Ra aL Ly 92

. Conclusion A ed? snnewosoneemivinsensnedigite praia PSs sian Secombe 29

Appendices: |

Appendix A—Opinion of the Court of Appeals. _App. 1

Appendix B—Statutes Involved ............ Eanes App. 6

ORES OIE OIE Pith

OOS CLL ELIOT IME LNA I IE

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| AUTHORITIES

: Phe 7: Cases

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Berger v. United States, 295 US. 78; 85, 89 ) (1935) .. 28

tiie ne

Greer v. United States, 245 U.S. 469, 471-472 (1918) -.. aes

Michaelson v. United States, 335 U.S. 469, 475-476

IIE dcicieicssscrchincctienciets nities age IA. 26

United States ap es 298 F. od 133, 141 (7th Cir.,

1962) ...... cee esas iesiaiealiaa belated Miedestaiaehccp ace elastisriscsediiie 28

United States v. Pitas’ 285 F.2d 408, 419 (and

Bh NE » Ssesssihespnssncceeeesinnssinsactiap Bi esiecs celles Sousasicndbatecionneasn 28

« Viereck v. United ini: 318 U.S. 236, 247 (1942) ....25, 26

Statutes .

‘See. 7201, Title 26 US. Code -aepccennnntnn--- App. 6

See. 7203, Title 26 US. Code costestapectneeenteeceneegeeeeeeet APP. 6

“Wa tle - )

“Suprewte Court af the Vuited States

Pentre ‘TERM 1969

r, —-

GUIDO FIDANZI =

- Petitioner,

UNITED STATES OF AMERICA, ‘+

\ a | ‘Respondent. -

ay,

PETITION FOR WRIT OF heath

TO THE UNITED STATES COURT-OF APPEAES

- FOR THE SEVENTH CIRCUIT

3 os)

.

| ‘Petitioner; Guido Fidanzi, respectfully prays that a Writ -

of Certiorari be issued to review the decision of the United -

States Court of Appeals for the Seventh Circuit..

NN OR PRM ee Es

t

2

J udgment and Opinion of the Ccort Below

On June 23, 1969, the Court of Appeals for the Seventh

Circuit affirmed the judgment of conviction entéred. by

the United States District Court for the Northern ‘Dis-

trict of Illinois after a ‘jury trial. The first count of the

indictment against appellant charged him: with evading -.

a tax of $1,027.51 by understating his taxable income by

$5,000 for the year 1961 (Sec. 7201, Title 26 U.'S. Code).

The other three counts of the indictment charged. appel-

lant with failing to file income tag returns in 1963, 1964 :

and 1965 (See. ime Title 26 U. 9. Code)..

The opinion of the Court of Appeals is not yet re-

ported; it is printed herewith as Appendix ‘‘A’’,

- <A timely Petition for Rehearing was denied on J uly 29,

1969, without a written — .

Jurisdictional Statement

Sie jurisdiction of this court is invoked under Title 28,

U.S.C. Section 1254(1).

Question Presented for Review.

17 May the prosecutor attaek. the’ character of the de-

fendant in a prosec ion for income tax evasion by re-

ferring to him as a con-nian, swindler, and extortionist

when the defendant does not testify and his character is

not an issue in the case?

Statutes Involved

Title 26, Sections 7201 and, 7203 are set out in Appen-

dix B.

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buy ‘40, television sets at $200 apiece. Goetz said that he | |

dant said that Goetz would have to come: up with $8,000

“44 ,

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Statement of the Case

Evidence of’ the Government ~ +”

A ‘search. of the records of te Chicago District of the

Internal Revenue Service made by the Supervisor of files

showed that Guido and Thelma Fidanzi filed an income

tax return for. the year 1961. No returns -were filed by

Guido Fidanzi for the years 1963, 1964, and 1965 (Tr. 4 14-

eo a

Testimony of-Edward H. Goetz — i

Biward H. Goetz testified that in November, 1965, ‘he °

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was introduced to'the defendant by Al Cidfi at Blue Island. é

. The defendant was known to him:as Sammy (Tr. 22). : ,

The ‘defendant told Goetz-that Cioffi had made a deal to

wanted to purchase three or ‘four sets (Tr. 25). The defen-

to purchase all of the’sets a the deal had been made

(Tr, 26). q

~The nest day Goetz aay to the defendant by telep ) ; x

and conceded to purchase half of the sets for $4, (Tr.

30). That same day Goetz cashed a check for $4,000 and r

gave this amount i in-cash to the defendant (Tr. -34). The '

following day Goetz received a telephone, ll from the ay

defenda#t who told Goetz that ‘“‘they?? needed the full © °~.

.$8,000, before the television sets would be released (Tr.

35-36). The defendant told Goetz that if he did not come. |

up with the additional $4,000, he could forget about: the

first $4,000 (Tr. 36). ; re a

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Shortly thereafter, Goetz met the tiieiad: ‘and gave ox |

him $4,000 in cash.: Goetz never received any television *® > ~

sets, nor was any of his $8,000 returned (Tr. 40-41).

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> Testimony of Ronald Redmon

Donald Redmon testified that on a morning in July, 1965,

he received a telephone call from a man named Jerry who

asked if he was interested in buying some liquor. An hour

later he niet Jerry, whom he identified as the defendant,

Guido Fidanzi (Tr. 78-83). The defendant told Redmon

that he was making the deal on the liquor and that Redmon

would need $1,000 to purchase fifty cases of liquor (Tr. 84).

The defendant told Redmon to give the, $1,000 in cash

to their mutual acquaintance, Jerry Schnadenburg, that:

evening, which Redmon did (Tr. 85). Three days later the

defendant called Redmon and told him that he could not

break up the shipment and that Redmon would have -to

come up with another $1,000 and buy thé entire shipment

(Tr. 86). The defendant said that he had Redmon’s thou-

. sand dollars and the whiskey and that Redmon would not

get either unless he purchased the whole hundred cases

(Tr. 87).

A few days after that the defendant called Redmon and

Redmon told the defendant that could not come up with

the money. Redmon never obtained either the liquor or

his $1,000 (Tr. 88).

a of Clarence Pensgard

Clarence Pensgard testified that In 1963, he was a real

estate salesman and a representative of the Aladdin Oil |

Company of Springfield, Illinois (Tr. 100-101). In Sep-

tember, 1963, Pensgard was introduced to the defendant,

who used the name John Areleo (Tr. 102). °

Pensgard told the defendant that Aladdin was in the

process of obtaining investors to drill four wells in areas

near Springfield (Tr. 103). The next day the defendant

called Pensgard and said that Mr. O’Brien, the owner of

Agar Packing Company, was interested in investing, but

that the defendant wanted an $8,000 commission before the

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deal was made (Tr. 105). After checking with his em-

ployer, Pensgard agreed to the arrangement suggested by -

the defendant (Tr. 105-106).

Pensgard told the defendant that he could raise $4,000

and would give him a check. The defendant said that he

would not accept a check and would have to have cash

(Tr. 107). Pensgard met the defendant and Charles Pine

and gave the defendant the $4,000, ‘‘. . . with the under-

standing that if the deal does not go through, this $4,000

is to come back.’’ (Tr. 111). The defendant then said °

that he would bring O’Brien to Pensgard’s house the next

day (Tr. 111). f

One or two days later the defendant, Charles Pine, and

Edwin T. O’Brien came to Pensgard’s house. Pensgavrd

made a full presentation to O’Brien who said that-he Was

interested and would be in touch with Pensgard shortly

(Tr. 112-113). An hour after O’Brien left, the defendant

called Pensgard and said that the attorney would have to

have \ $4,000 or else the deal was off (Tr, 114).

Pen ard called his employer and then spoke with the

defendant again, telling him that he’would arrange to get

him $4,000 more (Tr. 115-116). Shortly thereafter, Pens-

gard met with the defendant and Chafles’ Pine. Pensgard

told the defendant, ‘‘I can get you money on one condition,

that if the deal is not closed in the next day or so, the

$8,000 has got to come back.’’ (Tr. 117).

Pensgard then cashed two checks of $2,000 each and

turned the money over to the defendant (Tr. 117-121).

As he said he would, the defendant called Pensgard the

‘next day; he told Pensgard that he would have O’Brien at

Pensgard’s house ‘in two days (Tr. 121).

Two days later, the defendant, Charles Pine and Edwin

O’Brien were at Pensgard’s house and O’Brien asked if

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the contracts were ready (Tr. 122). There were eight con- ©

tracts and at O’Brien’s direction four were put in Pine’s

name and four were put in Pensgard’s name.

In exchange for signing his name to the contracts which

O’Brien was purchasing, Pensgard was to receive twenty-

five per centggf all the royalties to which O’Brien became

entitled (Tr. 123). In addition, Pensgard was to receive,

from his employer, ten per cent of the $58,000-and: a ten per

cent interest in the wells (Tr. 154).

The contracts were dated October 3, 1963, a day before

they were signed, and were in the total amount of $58,600.

O’Brien gave Pensgard a check for $58,000 and said he

would like the cexporation seal on the contracts (Tr. 125).

_Pensgard called gore on the telephone and both

’ Pensgard and-O’Brien- spo -to the employer (Tr. 126).

After speaking to the employer O’Brien took the check

out of Pensgard’s hand said that they would all go to

Springfield the next morning and close the deal at the oil

company office. Arrangements were made for the others to

pick up Pensgird the next morning and fly to Springfield. -

Pensgard never saw O’Brien again (Tr. 127).

In March, 1964, the defendant called Pensgard‘and Pens-

gard asked where O’Brien’s check for $58,600 was. The.

defendant said that.O’Brien was out of town and when he

returned the check would be delivered (Tr. 128).

During the same conversation Pensgard told the defen-

dant that a lawyer nied Harvey Powers had an oppor

tunity to -buy the Bloomington Small Business Investment

Corporation for $35,000 plus all outstanding debts and

that Powers needed a loan of $35,000 to complete the deal.

Pensgard asked the defendant if he would be interested —

(Tr. 128). |

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Pensgard made an appointment for the defendant to

meet Powers and introduced them to each other the next

day in the presence of Lloyd Vincent, Powers’ audifor (Tr.

129-130). Powers told those present what a good business

opportunity it would be to buy the Bloomington Sniall

Business Investment Corporation (Tr. 130). Powers said

that if Pensgard could raise the $35,000 that Powers

needed, Pensgarg would be made the managing director of

the, company. *Powers asked’ the defendant if he could

raise the money and the defendant said that hé would let

Powers know (Tr. 131).

The defendant called Pensgard the next evening and said

that he had raised $22,000, telling Pensgard that if Pens-

gard and the.others could raise $13,000 they would have

a deal (Tr. 132). Pensgard spoke to Powers and Vincent _

and then spoke to the defendant, telling him that Vincent

chad $13,000 in checks (Tr. 132). :

_ The next day the defendant, iia Vincent ard Pens-

gard met at Powers’ office. Lloyd Vincent left and Powers

said that he;had a receipt for $13,000 on deposit with the

United Bank of America for out-of-town checks whieh

would take a few days to clear (Tr. 133). The defendant

then said that he had to’have some cash to hold the deal

together, or else his people would back out. Powers then

asked Pensgard if he could raise four or five thousand dol-

lars as a binder and that he would get the money back

the moment the $13,000 in checks cleared the bank (Tr. 134).

A day or 50 later Pensgard met with the defendant and ’

‘ Powers, The defendant presented Powers with a check

for $22,000 and Powers gave the defendant a receipt for

$13,000. *Pensgard gave Powers $4,000 which Powers gave ©

to the defendant along with the check for $2,000. Arrange-

ments were made to meet the next morning at the United

Bank of America to conclude the-deal (Tr. 137). ~.,

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w Pensgard, waited at the bank all morning: but neither

the defendant nor Powers arrived (Tr. 138). About a

week later Pensgard called the defendant, told him that

he knew his real name and threatened to call the federal

authorities (Tr. 139-140). The defendant called him back

.the next day and said he was returning” Pensgard’s ‘$12,000

by check in a few days (Tr. 140). Pensgard never re-

ceived any? of the $12,000, nor did he receive either the

$58,600 check on the oil wells or any stock in the Bloom-

ington Small Business Investment Corporation (Tr. 141-

142). : ,

Testimony of Donald Rasmussen

Donald Rasmussen identified Government Exhibit 8 as

a check for $5,000 dated December 1, 1961, made out to.

Sinopoli Sausage Company and signed’ by him (Tr. 160-

161). A few hours before making out the_¢heck, Ras-

i he had spoken to the defendant, who told /Rasmussen

that he wanted to invest some money in the cf/mpany but

id not want Sinopoli to know that this mghey was being

put in by the defendant. Therefore, the defendant re-

quested that Rasmussen write the check, stating that he,

‘the defendant, would‘geposit enough money to cover the

check if he used it (Tr. 163).,

The defendant picked up the check at Rasmussen’s home

(Tr. 164). Rasmussen had previously written four or five

checks for the defendant (Tr. 166). On each of these in-

stances the defendant would deposit enough money in Ras-

mussen’s account to cover the checks (Tr. 167).

A few gays later Rasmussen called the defendant and

told him that no funds were deposited tg his account and

the defendant said he had not used the check (Tr. 168).

Rasmussen stopped payment on the check (Tr. 168).

Testimony of Arnold Schneider

_ In. December, 1961, the defendant and Mr. Sinopoli

* showed Arnold Schneider Government Exhibit No.,8 and

Mr. Sinopoli told him that if he helped get the check

cashed he would get a thousand dollars out of it (Tr. 180).

’ Schrieider had given a man named Jerry Sund $2,900 in

1959 and had been unsuccessful in getting it back. The

thousand dollars Schneider was to obtain for helping cash.

' the .check was to be applied against what Send owed him

* ~ (Tr. 181). |

Sinopoli, Schneider and the defendant went to the First —

National Bank of Cedar Lake indiana vhere Sehneider

banked. Sinopoli and Schneider entered the bank; the

defendant remained in the car. The cashier gave Sinopoli

$5,000 (Tr. 182). oe

In the car, Sinopoli gave Schneider a thousand dollars.

Thirteen days later the bank notified Schneider that pay-

ment had been stopped on the check (Tr. 183). Eventually

Schneider paid the bank‘out of his own funds (Tr. 184).

He did not keep the original $1,000 but gave it back to

Sinopoli (Tr. 184). 7

Testimony of David Kurash

On June 14, 1965, Special Agent David Kurash of the

Internal Revenue Service interviewed the defendant, who

was present at the Internal Revenue office with an’ attor-

ney (Tr. 213). -Kurash told the defendant, he was in-

vestigatine Mr. Sinopoli (Tr. 196). Kurash asked the de-

fendant whether he had ever received money from Sinopoli

and the defendant said that he had, on one occasion (Tr.

~ 215).

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_ Fidanzi told Kurash that he had arranged to bring Sin-

opoli and Rasmussen together, that they were gqing into

the ‘ Sausage business together and that Rasmussen was ©

paying” Sinopoli a total of $50,000. The $5,000 was Fi-

danzi’ s commission for arranging the deal (Tr. 217). The

defendant: told Kurash that he did not know*the check was

*” not good when he cashed it i 218).

Shinada of Bernard: Greenspahn

In July, 1963, Greenspahn owned an automobile agency |

in Harvey, Illinois (Tr. 223). The defendant, in the pres-

ence of a friend of Greenspahn’s named Maurio DeAndre,

told Greenspahn that he had some television sets for sale

at one hundred dollars apiece Greenspahn ordered seven

for himself and for his employees (Tr. 224-225). A few

hours later the defendant called Greenspahn and said that

he needed, cdsh in order to obtain the sets and that he would

‘send a friend to pick up the money and delivery would

be that evening (Tr. 226), |...

Greenspahn ‘collected a total of $720 which he gave to °

_ a messenger (Tr. 227). When he did not receive the sets

Ww ‘ithin ea week and one-half he got in touch with the de-

fendant by telephone (Tr. 228).. The defendant told

Greenspahn that he would either get the.televisions or his

money back; the defendant said that-he had received the

money (Tr. 229). 3

Over a period of seyeral.years Greenspahn received $418

of his money back, some of which came from the defendant

(Tr. 230). as,

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Testimony of Bennie Beaird

In November, 1964, Mr. Beaird, who is in the insurance

and investment business, met the defendant and Harvey

‘Powers at O’Hare Airport (Tr. 301). The three men

went to the offices of Worldwide Mortgage Company in

Wheeling (Tr. 303). They then went to a restaurant where

they discussed Beaird’ s desire to borrow $100,000 (Tr.

304-305).

. The two men told Boaied that a loan of $100,000 would

cost, him $12,000, to which Beaird- had no objection. They

also’told Beaird that two perecent of the $112,000 would”

‘have to be forthcoming from him before they went to ~

work on the loan (Tr. 305).. ° i

Approximately three weeks later aid iis ae

Worldwide Mortgage and told the defen@ant and Powers |

that the paymeit by him of twelve per cent was ‘‘an .

‘equitable situation’? but that he objected to putting, up”

two per cent ahead of time (Tr. 306). The defendant told

Beaird that there was no way for them to go to work’

on the loan until they had the two’ per. cent. Beaird said .

that he would give it additional consideration (Tr. 307).

On December 12, 1964, Beaird turned over.two checks

totalling $2,240 to the defendant and Powers and con-

summated the application for the loan (Tr. 308-309). An

interest rate of 534 per cent was agreed upon for the

-loan (Tr. .310).” Government Exhibit No. 11 is a true

copy of the contract for the loan (Tr. 311).

It was agreed that within sixty days the borrow er would

have either the loan or his money back (Tr. 312-313).

Beaird never got the loan or his money back (Tr. 313).

Beaird gave the: check to Powers (Tr. 314). Both the

defendant and Powers told him that the money would be

returned after sixty days if the loan was not secured

‘(Tr. 314).

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Testimony of Donald J. ‘Blazavier |

Dohald J. Blazavier was introduced to the defendant. by

Harvey J. Pawers in the fall of 1965. He had several notes

and mortgages due and approached the defendant asking |

for help. The defendant said he had influence with a lot

of banks and could probably*have Blazavier’s notes ex-

tended (Tr. 338-339).

Blazavier owed about $40,000. Three weeks later, Blaza-

vier saw the deferidant and Harvey Powers at World .

Wide Mortgage. Blazavier asked the defendant to obtain’

a loan for him. The defendant said. he could obtain a

$50,000 loan for Blazavier,: but it would cost him $5,000,

to be paid to a bank official : that the defendant knew (Tr.

341). Blazavier borrowed $5,000. from Jamies Leo and

Dan Viola and gave them a check for $5,500 (Tr. 342).

After cashing the check received from _Leo and Viola,

Blazavier gave the defendant $5,000 in cash with the un-

derstanding that if the defendant did not obtain the loan

for Blazavier, ‘the money would be returned to Blazavier

(Tr. 343-344). ng

A week later, Blazavier asked the defendant whether

-.* the loan had been placed. The defendant indicated he had

been unable to get the loan, but that the money had been

given to the bank official, and the defendant was unable

to get it back (Tr. 346). 7 -

Approximately three weeks later, Blazavier introduced

Dan. Viola to the-defendant at World Wide Mortgage (Tr:

347). Blazavier was requested to leave the room. When =

~. he returned, he was given a piece of paper to sign, Govern-

ment Exhibit 14, which he gave to Dan \ Viola (Tr. 348-

350).

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paid the $150 a week’ saldby, nor the origina

never received the $50,000 loan, and he never repaid Viola |

~ his $5,000. (Tr. 352).

In July, 1965, the defendant seta Blazavier to obtain

$1,500 so.that the defendant could close a project in New

York City (Fr. 353-354).. The defendant spoke to. both

Blazavier’s mother and wife (Tr. 355). The three of _

them agreed to give the defendant $1,500 (Tr. 356).

Blazavier gave the defendant $1,500 for use on a project in

', which Blazavier could make some, money and pay. off. his

debts: (Tr. 357-359). : = |

The defendant told Blazavier that if this deal went .

through, Blazavier might receive . between $70,000 to

$90,000. The deal did not go “through, and Blazavier did ~

~ not receive his $1,500 ‘back. (Tr. 361).

In September of 1965, Blazavier received $800 in éash

from: his wife and was told to take it fo the defendant

at.a law office in Harvey, Illinois. When Blazavier met the

-‘ defendant, he asked him’ why he -had called and visited

Blazavier’s wife. The defendant said that he and Powers

. had gone to Kenosha and told Blazavier’s wife that they

- needed $800 (Tr. 362-363). The defendant told Blazavier

that he. would be part of the Harvey office and would

receive profits and funds therefrom (Tr. 364). Blazavier

did not become part of the office, nor did he receive the

$800 back (Tr. 365). .

In December of 1964, the. defendant asked iene to

cash two checks each in ‘the amount of $1, 120, given to

the defendant by Bennie Beaird. -Blazavier was unable

to cash the checks: (Tr. 367-369).

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At one time, Blazavier had . is dedoadaint eall or talk

to,Harvey Powers in regard to Powers returning Blaza-_

vier’s money to him. Blazavier and the defendant, to-

gether, tried to find out -where’ Blazavier’s money was. ”

It is possible that Blazavier told the defendant that he

was sure that Powers got Blazavier’ s money (Tr; 373- 374).

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Powers defended both Blazavier and ‘his wife on check

charges, but the $800 previously mentioned was not'a legal -

fee for thee defense of- Blazavier’s wife (Tr. 379-380).

Blazavier’s -arrest- on the check charge arose out of one

of the cians 8 checks in the amount of $5,700 (Tr.

383). \ *

| Testimony of Dan Viola. :

On December dD, 1964, Dan Viola mef the defendant and ee oe

asked him for the money which Blazavier had borrowed’

from Viola and James Leo and‘given to tlie defendant.

The defendant asked: Blazavier to leave the room and told . .

Viola_that Blazavier had interest in one. “of the defen-

dant’s ‘projects. and the defendant would have him assign.

that interest to Viola. A paper purporting to assign stich

-. an interest was signed by Blazavier and" given to Vidla.

" (Tr. 414-423).

Viola never received the $5,000 back and ‘when. he- went

to the World Wide Mortgage office. thirty, days later it was

~ vacant . — 423).°

Testimony. of Noel Simon. :

Inv 1961 Simen was vice-president of , Mid-Continent

. Machinery Company which distributed machinery for coin-

_ operated dry cleaning and laundry installations. Kenneth

‘ Fabry was President (Tr. 436). In_October, 1964; Simon

met the defendant in. the office of Ed Popovits. Also -

present were Mr. Popovits, Mr. Sinopoli’ and. Mr. Hoff, a ie Yaw

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salésman for Simon (Tr. 437-438). _The defendant said

‘that he represented .a-group of people who wanted to go

into the coin-operated dry cleaning and lautidry business

(Tr. 438). ae en . ‘ye

_. The defendant asked Simon’s group to prepare a. pro-

‘ posal setting forth what equipment would be necessary

“and to prepare a 1 contract (Tr. 439): “A few days later the

Simon group met with the _ defendant, who took the group

out to see a location where he; was. going- ~to Jnstall the

‘équipment (Tr. 440). : ep aaa

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z They ‘all went back to Popovits’ office to discuss the

contract. The defendant then told Simon that Simon would

have to come up with some front money for Mr. Sinopoli, + °

because Sinopoli was a nephew of one of the principals

whom the defendant represented and Sinopeli was in dire

ds (Tr. 441-442). The contract was to be in

-the neighborhoo 90,000 and Mid-Continent was to pay

$9,000 for having: the de e t_sign. the contract (Tr.

443). : ~ .

Simon and Fabry met the defendant a few days later

and the defendant asked them’ to prepare another contfact

and to bring ‘the ‘front money with them to the next meet-

ing (Tr. 445)... . |

A week later the defendant signed the. contract: and

Simon gave Hoff:a check for $9,000 (Tr. 446-450). The ‘

defendant told Simon that he-avould receive a cashier’s

check for $110,000 shortly in the mail (Tr. 450). Simon .-

did not receive a check in the mail but did-see the defen-

dant a week-or ten days later (Tr. 450). i

The defendant showed Simon a adbiier? s check for

$110,000 made out to Mid-Continent Machinery Company .

and drawn on the Mid-City National Bank. The defendant.

fold Simon that he could take the. ‘check and conclude the

« ‘

a

16

- one deal or wait and make three other contracts with the

defendant. Simonvealled Fabry and then told the defendant

that he would wait for the other thigg deals (Tr. 451).

They then diseygsed the three other deals which com-

prised a total 000. The defendant requested an

additional $6, in front money. Simon said that he did

in front money to give the defendaft and

the defendynt said that he had to have the front money

apive Simon a check (Tr. 452).

On Selkaiue 30, 1961, a meeting took place at Popovits’

office at which the final three contracts were to be signed

and Simon’s group was to receive a check for the four

deals. Simon brought to the meeting Mr. Sol Schluger,

sales manager of the o7- ten. Meg manufactured the

equipment which Mid-Continen s going to sell to the

defendant (Tr. 454). ;

Simon told the defendant that: Schluger had brought

the additional $6,000. Schluger asked to see the checks

which the defendan®was to bring and the defendant showed

the $110,000 cashier’s check. Schluger then proposed that

the defendant give him the cashier’s check and Schluger

would give the defendant the $6,000 (Tr. 455).

The defendant told the group that he would sign the |

contracts and give them one check to cover the entire

amount and that Schluger should give him the $6,000

When Schluger refused, the defendant tore up the con-

tracts and left (Tr. 456).

Three weeks later Simon was at the defendant’s home

and the defendant said that he had ‘full intentions of

returning the money ... ’’. The defendant said that he -

had received only $2,000. Simon never received any of

the money back nor did he sell the defendant any machinery

(Tr, 460-461).

ye

17

Testimony of Miles R. Hoff, Jr.

Hoff cashed the check for $9,000 made out by Noel

Simon which was to bé given to Louis Sinopoli. He gave

Sinopoli $6,000 in cash: and kept $3,000 as his commission

for arranging the sale by Mid-Continent to the defendant.

Hoff was originally’to receive a commission of $9,000 for

arranging the sale but Simon told him to give Sinopoli’

$6,000 and Simon would make it up to him on another

- sale (Tr. 471-478).

‘ Hoff never gave the defendant any of the $3,000 which

he got, nor did he ever see anybody else give the defendant

any part of the remaining $6,000 (Tr. 481).

Testimony of Kenneth E. Fabry

Mr. Fabry corroborated the testimony of Mr. Simon

with respect to the meetings with the defendant and what

took place (Tr. 482-491). J

‘Testimony of Bruce Jester

In March, 1965, Jester lived in the Shreveport, Louisiana

rea and was seeking employment (Tr. 524). On March

16, 1965, Jester was intrgduced by Francis Carnical to

the defendant, Harvey Powers and John Birdsell (Tr.

526).

When Jester was alone with the defendant, Jester said

that he understood that World Wide Mortgage-Company

was establishing offices in the area and asked to be inter-

viewed for a job (Tr. 528). The next day the defendant

interviewed Jester for a position with World Wide Mort-

gage (Tr. 530).

‘hr

r

18

During the interview Jester told the defendant that he

was indebted to the extent of $1,600 (Tr. 531). The next

day the defendant told Jester that he would like to hire

him but he didn’t want anyone working for the company

would begin work at $150 a week and go on commissions

at a later date (Tr. 535).

A few days later the defendant told Jester” that the

company had some expenses which he would like to clear

up. He asked Jester if Jester could cash ‘a,.$10,000 check

_from a company in Peoria, which check represented com-

missions to the defendant (Tr. 537). The next day the

defendant showed Jester a check that was signed but did

not have the amount of money written in (Tr. 539). At

the defendant’ s request, Jester obtained the use of a check-

writer and had the $10,000 =— — on it (Tr.

540-541). ae

account called International Management (Tr. 541). Jester

cashed the check at a bank, depositing $1,000 in the World

_ Wide Mortgage Account, keeping $2,000 to cover his debts

and expenses and giving the remaining $7,000 to the de-

_ + fendant (Tr. 544-546). .

Later in March, 1965, the defendant told. Jester ‘that

he.was going to Dallas to close a loan and asked Jester to

‘accompany him (Tr. 546-547). In Dallas Jester cashed

a check for the $1,000 in the World Wide Account in the

Shreveport Bank and gave it to the defendant (Tr. 549-

550). Jester received $500 of this money back from the

defendant, to cover certain expenses in Shreveport (Tr.

551).

“sy

. who was in debt (Tr. 533). It was agreed that Jester —

_~ The check was signed with the name Dale Runyon on an -

19

Jester never received a salary check. The original

$10,000 check was returned marked ‘‘insufficient funds”’’

and no one ever supplied Jester with funds to make the

check good (Tr. 553).

Testimony of George F. McNamara j

Mr. MeNamara is the supervisor of mutuels at Stitt

Park racetrack. Government Exhibit 20 is a form which .

shows.that the defendant won $1,347.20 on the twin double

on December 17, 1963 (Tr. 591- 599).

Testimony of Eugene H. Shorts

In March of 1965, Shorts and Larry Bonnet met the

defendant and John Hyde, a lawyer, at a hotel near O’Hare

Airport (Tr. 601-604). At dinner, the defendant agreed ~

to lend Shorts $280,000 as a mortgage on buildings that

Shorts was constructing: (Tr. 604-605). The terms included

a discount of $28,000 as a brokerage fee (Tr. .606). The

defendant told Shorts that a good faith deposit of $5,470

would be required (Tr. 607). Two weeks later Shorts gave

the defendant $5,470 in cash, and received a contract signed —

by Guido Fidanzi and Larry Bonnet, Government Exhibit ..

22 (Tr. 617-623).

A week and a half later, “the defendant told Shorts

that he would need an additional $5,470 to close the loan

(Tr. 627). Shorts never paid the additional amount, never

received the original $5,470 back and:.never obtained the —

loan (Tr, 628-632). ‘

s

‘

“

20 @

Testimony of John McPherson

In July, 1963, the defdndant told McPherson that he

was about to close a dealjon the purchase of two night

clubs and two houses of prostitution. The defendant said

he needed $2,000 to $3,000 to close the deal and if Me-

Pherson could come up with that money, he would receive

$3,000 in Profit (Tr. 659-661).

In August of 1963, McPherson gave the defendant $4,950

in cash (Tr. 663). MePherson received approximately |

$2,500 of his money back (Tr. 666).

In the summer of 1964, the defendant told McPherson

that the Internal Revenue Service was not as interested

in what he owed them in taxés' as how he got his money.

The defendant stated he was trying’to win over- $600 at --

the track to show a source of income (Tr. 668-669).

Testimony of Robert J. Butler

Butler is an Internal Revenue Agent (Tr. 696). In

December, 1963, he interviewed the defendant, asking him

certain questions about his income ‘and the seurce of his

income. The defendant said he would answer these ques- —

tions at a Jater date (Tr. 699).

The defendant said that Butler was never going to prove

any additional income for the defendant for 1960, 1961,

and 1962 and that ‘‘the man who is going to testify that

he gave me money hasn’t been born yet.’’ (Tr. 700).

In November, 1964, Butler again interviewed ‘the defen-

dant (Tr. 700). The’.defendant ‘stated that for the two

years 1961 and 1962, his taxable income should have been ?

increased by $15,000: (Tr. 703).

*»

21

Picad

Butler testified that he asked the defendant about the

sources of his income and the defendant said that he did ©

not wish to disclose these sources (Tr. 703). Defendant’s

motion for a mistrial was taken under advisement (Tr. |

704-707).

Bufler then summarized his calculations with respect),

to the defendant’s, tax liabilities based on the testimony -

he had heard during the trial (Tr. 716-728),

The defendant rested without putting in any evidence.

& : |

~

ee

y

22

REASON RELIED ON FOR GRANTING THE WRIT

1. The Attack Of The Prosecutor. Upon The Cilaeniter

Of The Defendant In His Opening And Closing State-

ments When The Character Of The Defendant Was.

Not In Issue Was So Prejudicial And So Improper’; ~

That The Court Erred In Not Declaring A Mistrial. is

The defendant was indicted for income tax evasion and

for failure to file income tax returns. «These. -were the

only charges “in the indictment. The w were the charges

which the jury was to determine.

In his opening statement the prosecutor told the jury

that the defendant obtained his income from: ;

ei. Sores swindling, extortion and thei: ‘ceili

games. * (Tr. 3).

The defendant” s motion for a mistrial was denied. The =

prosecutor said he would show:

eae eed ES

as ; how the defendant obtained this money by

sitaniias or confidence games,;... ”? (Tr. 4).

In the opening portion of his closing argument the prose-

cutor argued as follows to the jury:

‘You have heard over the last few days a rather

sordid story of how one makes a living:

You. have heard one gyps, cheats, swindles, ex-

torts to make ii

You have seeit how he does it, you have seen the

lives that have been destroyed— 2 (Tr. 806).

4

23

- The defendant’s motion for a mistrial was denied. A short

“time later the prosecutor spoke of the defendant -asy

follows:

o

‘“‘That is his business, to extort, to Seite people, to |

intimidate people, and take money from them, to de-.

_troy them and take money from them.’ (Tr. 810}.

‘The defendant’s motion for a mistrial was denied.

Further reference was made in the opening section of the

prosecutor’s closing argument to “ swindling income by the

defendant”’ (Tr. 812) ; to ‘‘Pensgard swindled again,”’ (Tr.

815); to a ‘Beautiful swindle”? (Tr. 816) ; to ‘‘Schneider

had been bilked by the defendant’? (Tr. 817); to ‘‘the

Schneider fraud’’ (Tr. 819) ; to ‘‘The Mid-Continent trans-

action was the sale of the dry cleaning equipment, a beauti-

ful swifidle.’’ (Tr. 824).

The prosecutor then told the jury:

‘‘Now, the defendant has committed what you liave

seen, perhaps other offenses which have led him to this

source of income,... ”’ (Tr. 830),

He followed that with:

‘“TIn additional to stealing from these victims who

have.testified, he has-tried to steal from the United

States by not paying taxes or filing returns.’’ (Tr.

hn se pa

he torrent goes on:

‘‘He has defrauded everybody, and now he is trying

it again,... ”’ (Tr. 831). |

and on:

—_

‘Ladies and gentlemen, just like people who work

in banks, who work as. salesmen, as teachers, auto

mechanics, chauffeurs, this defendant worked as an

extortionist, as a swindler, as a con man.”? (Tr. 835).

©

Ce a a s

24

and on:

‘He tried to swindle you, ‘bs iorseamiont the peo-

ple as well. You can swindle him, swindle him, swindle

him — that’s his life; that’s how he makes it.” (Tr.

835- 836). agers get A “

And ebnsludes with a final characterization, aimed at

unfairly influencing the jury:

= . Guidé Fidanzi, swindler and con man... ”’

(Tr. 836).

So afraid was he that the facts themselves would not

carry the day, the prosecutor found it necessary to charac-

terize each of the govérnment witnesses. These charac-

sterizations were designed to curry favor with the jury and

cause antipathy towards the defendant:

‘‘Poor Mr. Goetz.” (Tr. 809). aE

_ * .,, poor Mr. Pensgard... ’’ (Tr. 814).

‘Poor Pensgard.’’ (Tr. 815). ne

‘©. poor Mr. Pensgard... ”’ (Tr, 815).

‘‘Poor Mr. Pensgard ... ’’ (Tr. 815).

‘¢ ... poor Mr. Blazavier ... ’’ (Tr. 824).

‘‘Bruce Jester ... that poor boy looking for a’ job,

coe.” Che. Cae ;

‘* ... poor Mr. Jester . .. 7? (Tr. 826).

‘‘Poor Mr. Shorts.’’ (Tr. 828).

The government had the right to introduée evidence of

the actual transactions so that it could show income to the

defendant — to that, the defendant does not.object. But

what is objectionable and what did make it impossible for

the defendant to obtain a-fair trial was the ‘constant char-

acterization of these transactions in a manner calculated _

uae

:

s

-

Prey s*?"e.

29

to arouse the passions of the jury so that they would con-

‘ vict the defendant of crimes for which he was not on trial.*

In Greer v. United States, 245 U.S. 469, 471-472 (1918);

Justice Holmes pointed out that if the. character of the

defendant were regarded as necessarily material to the

main issues, ‘‘ . . . the government would. be entitled to

put in evidence whether the prisoner -did’ so or not.??

But since the government may not make an issue of the

defendant’s character unless the defendant introduces the

issue, Holmes concluded that, ‘‘The meaning must be that

character is not an issue unless the prisoner chooses to.

~make it one;... ”?

In the present case the prosecutor painted the character

of the defendant as a con man, swindler and extortionist

when he was not on trial for con game, swindling or extor-

tion. Receipt of income, not how the defendant received

the income was the‘sole proper issue in the case.

The impropriety of'the prosecutor’s statements in the

instant case is analogous to the actions condemned by the

Supreme Court in Viereck v. United States, 318 U.S. 236,

247 .(1942). Viereck was. indicted -for willfully omitting

_to state material facts required to be stated in a supple-

' mental registration statement filed by him with the Secre-

tary of State. The prosecutor’s closing statement was a

naked appeal to the most: uriderstandable and most easily

* Interestingly enough, the defendant was acquitted by a jury, in

the proper forum, the Circuit Court of Cook County, when he was

triéd’ for his dealings with the government witness Redmon. The

"acquittal came in State of Illinois v. Guido Fidénzi, ‘66-957, on

August -19, 1968, in the courtroom of Judge Louis Wexler,

°

26

aroused emotion — patriotism." Of this argument Chief

J ustice Stone said:

‘*In his closing rediinr ite to the jury he indulged i in an

- appeal wholly irrelevant to any facts or issues in the

case, the purpose and effect of. which could only. have"

been to arouse passion and prejudice. ee :

‘*At a time when passion and prejudice are height-

ened by emotions stirred by our participation. in a

great war, we do not doubt that these remarks ad-

dressed to the jury were highly prejudicial, and that

they were offensive to the dignity and good order with

which all proceedings in court. should be conducted.’’

Viereck v. United States, 318 U.S. 236, 247-248 (1942).

Justice Jackson elaborated on this theme in Michaelson

v, United States, 335 U.S. 469, 475-476 (1948), saying:

‘‘Courts that follow the common-law tradition -al-

, most unanimously have come to disallow resort by the

prosecution to any kind of-evidence of a defendant’s

'- evil character to establish a probability of his guilt.

Not that the law invests the defendant with a presump-

* The prosecutor’ szexact words were:

_ “In closing, let me remind you, ladies and gentlemen, that this is

war. This is war, harsh,” “cruel, murderofis war. There are’ those

who, right, at this very’ ‘moment, are plottin® your death and my

* death; plotting our death and ° the death | jof our families because we:

__ have ‘committed no other crime than that we do not agree with their

ideas of persecution and concentration camps.

.. “Thisis war. It is a fight to the death. The American. people are

rélying upon you ladies and gentlemen for their protection against

this sort of crime, just as miuch as they are relying upon the pro-

tection of the men who. mah the guns at Bataan Peninsula, and every-

where: else. They are relying upon you ladies and gentlemen for

- their protection. We are at war. You have a duty to petform here.

“As a representative of your Government I am calling upon =

see one of you to do your duty.” » oa permenant

. +

27

tion, of good character, Greer v. United States, 245

US. 559, 62 L. Hd. 469, 38 S. Ct. 209, but it simply

closes’ the whole matter of character, disposition and

reputation on the ‘prosecutor’s case4n-chief. The

~state may not show defendant’s prior“trouble with the

law, specific criminal acts, or ill name among his neigh-

bors, ¢ven though such, facts might logically be per-

sudsive that he-is by propensity a probable perpetra-

tor of the crime. The inquiry is not rejected because’

character is irrelevant; on the contrary, it is said to

weigh too much with the jury and to so ever persuade

them as to ‘prejudge one with a bad general record

and deny him a fair opportunity to defend against a

particular charge. . The overriding policy of excluding

such evidence, despite its admitted probative value, is

the practical experience that its disallowance tends

to prevent confusion of issues, unfair surprise and un-

due .prejudice.’’

In-his dissent in Michaelson Justice Murphy reached the

same conclusion with respect to the place the character

of the defendant has in the trial of a criminal case:

‘‘The common law has<not grown in the tradition

of convicting a man and sending him to prison because

he is generally a bad man or generally regarded as

, one. General bad character, much less general bad rep-

utation, has not yet become a criminal offense in our

scheme. Our whole tradition is that a man can be:

punished by criminal sanctions only for specific acts

defined beforehand to be criminal, not for general mis-

conduct or bearing a reputation for such misconduct.

Yi RE PPEILRE LEE BTN IR St

‘‘That tradition lies at the heart of our criminal ° ~

process. And it is the foundation of the rule of evi-

dence which denies to the prosecution the right to

show generally or by specific details that a defen-_ |

dant bears a bad general estimate in his community.

In the light of our fundamental conceptions of crime

and of the criminal process, there is nothing anomalous

28

in this exclusion. It is designed to restrain prodf

to the limits of the charge and to prevent conviction

for one offense because perhaps others, or misconduct

not athounting to crime at all, have been perpetrated |

or are reputed generally to lie at the* defendant’s

In United States v. Bufalino, 285 F.2d 408, 419 (2nd

Cir. 1960), Chief Judge Lumbard succinctly summarized

this important aspect of our legal heritage. In doing so

he shows us what is so repugnant about the prosecutor’s

language, approach and tactics in the instant case:

‘*The administration of our system of criminal jus-

tice and our basic concepts of fair dealing are cen-

tered on the requirement that in each case we reach

a result based solely on the charges made in the par-

ticular indictment and on the evidence which appears

on the record with regard to those charges.’’ é

See also United States v. Accardo, 298 F.2d 133, 141

(7th Cir. 1962), concurring opinion of Judge Duffy.

The prosecutor ignored the charges in the indictment

during a portion of his closing argument to concentrate

his fire on the character of the defendant. His attack was

intentional and pervasive, and must be dealt with accord-

ingly. i , ,

“*Moreover, we have not here a case where the mis-

conduct of the prosecuting attorney was slight or con-

fined to a single instance, but one where such miscon-

-duct was pronounced and persistent, with a probable

cumulative effect upon the jury which cannot be dis-

regarded as inconsequential.’’ Berger v. United States,

7. 295 U.S. 78, 89 (1935). )

29

In Berger the court suggested that the judge should de-

clare a mistrial in a situation where other judicial action

cannot correct ‘the situation. |

‘But the situation was one which called for stern

rebuke and repressive measures and, perhaps, if these

were not successful, for the granting of a mistrial. It

is impossible to say that the evil influence upon the

jury of these acts of misconduct was removed. by such

mild judicial action as was taken.’’ (P. 85).

Vile and corrupt as the prosecutor may think the de-

‘fendant, nevertheless, the defendant is entitled to a fair

trial; and it is the prosecutor’s duty to ensure him that

fair trial.

CONCLUSION

For the foregoing reasotis, we pray that the Petition

for Certiorari be granted and that this court either re-

mand the cause -to the Court of Appeals for the Seventh

Cireuit for a consideration of the point set out herein, or \

that this court note the errors and make known its ruling

d4hereon. .

. Respectfully , submitted,

;

. ‘Geratp M. Werxsman

Juuius Lucius Ecueves

Attorneys for Petitioner

\