Petition for Writ of Certiorari — Clark v. United States

Supreme Court brief1969

Ask Donna

What actually matters in this document.

Text

Office-Sunreme So"

FILED |

SUPREME CO JRT, U. S.

4 | EC 20 1969

: . | JOHN F. DAVIS, CLERR

IN THE

Supreme Court of the United States

OCTOBER TERM 19689 :

JOHN DeLYRA,

Petitioner,

‘—against—

UNITED STATES OF AMERICA,

| Respondent.

aenenieen

‘

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Jacos P. Lerxowrrz

JosHua N. Kopiovirz

Counsel for Petitioner

Office & P.O. Address

150 Broadway—Suite 1401

New York, N. Y. 10038

—— — : ee

eS od $2 Cass Press ixc., 421 Hupson St., N.Y.—OKegon 35-4540

Saal

PAGE

COUN TOM a oie k a doves ka eee ees reenewes 1

Jurisdiction ......... RK A See ie PELE ee en eas 1

Question Presented ..... Sate aes So aais s akan Gates 2

Gea TO ool oi iin op ia een se ope oeuke 2

Statement of the Case ........ oh ie cake cateaeeen | 2

Reasons for Granting the Writ ....:............6- 4-

The court below has decided an important ques-

tion of federal law which should be settled by

this court: whether federal district courts

should have the discretionary power to pro-

hibit the prosecutor from using:a defendant’s

_ prior convictions to impeach him should he

testify, and if so, whether the defendant has

the right to a ruling in advance of ‘his having

Sie Ce WON Go aes bea ods wa ee 4

CoNCLUSION ....... EC TEP gree ee Nea eee 7

| Reign nies: and J udgment of Court of Ap-

} See eee Seat LT Tee eee eee er ree la

CITATIONS

PAGE

Cases:

United States v. Palumbo, 401 F.2d 270 (2d Cir.

one, SEE EN CEES Pr en et Ae ee 3,4

Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965) 4

United States v. Plata, 361 F.2d 958 (7th Cir. 1966) 5

Burg v. United States, 406 F.2d 235 (9th Cir. 1969) 5

Smith v. United States, 358 F.2d 683 (3d Cir. 1966) 5

Montgomery v. United States, 403 F.2d 605 (8th

Cir. 1968) ........ ca nenen bo pehcunt es eebusekse 5

Richards v. United States, 192 F.2d 602 (D.C. Cir.

BOE 6660.0 dels snc 40 nen86e0ssbaneereinixesii, 5

Miscellaneous:

Griswold, The Long View, 51 A.B.A. Journal 1017 .. 5

Kalven and Zeisel, The American Jury (1966) ...... 6

Proposed Rules of Evidence for the United States

District Courts and Magistrates, 46 F.R.D. 161... 5

IN THE

Supreme Court of the United States

October Term 1969 —

No.

Joun DeLyra,

Petitioner,

—against—

Unrrep States or AMERICA,

Respondent.

-™

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner John DeLyra respectfully prays that a writ

of certiorari issue to review judgment of the United States

Court of Appeals for the Second Circuit entered in ar pro-

ceeding on September 25, 1969.

Opinion Below

The opinion of the Court of Ri reported at 416

F.2d 107, appears in the Appendix hereto. No opinion was

rendered by the District Court for the pouthern District of

New York.

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on September 25, 1969. A timely peti-

tion for rehearing and/or rehearing en banc was denied on

October 24, 1969.

Thereafter, on November 15, 1969, Mr. Justice Harlan’

signed an order extending the time within which to file the

petition up to and including December 23, 1969. This Court’s

jurisdiction is'invoked under 28 U.S.C. § 1254(1).

Question Presented

1. Whether a federal district court has the power, in the

exercise of its discretion, to bar a federal prosecutor from

using a defendant’s prior conviction to impeach his ecredi-

bility should he testify; and if so, whether the defendant is

entitled to a ruling on this question in advance of his taking

the stand.

Statutes Involved

Rule 26, F.R.Cr.P. Evidence

In all trials, the testimony of witnesses shall be taken

orally in open court, unless otherwise provided by an act

of Congress or by these rules. The admissibility of evidence

and the competency and privileges of witnesses shall be

governed, except when an act of Congress or these rules

otherwise provide, by the principles of the common law

as they may be interpreted by the courts of the United

States in the light of reason and experience.

Statement of the Case

Petitioner was charged, along with five co-defendants, in

a thirty-count indictment with conspiracy, mail fraud, wire

fraud, interstate travel, and inducing interstate travel in execu-

tion of a fraudulent scheme. Two of the defendants, Nieman

and Lonardo, pleaded guilty ; and petitioner and the remaining

three defendants were convicted after trial. Petitioner received

a three-year prison sentence on each of several counts, the

sentences to run concurrently.

The indictment charged the defendants with a scheme to de-~ )

fraud businessmen seeking mortgage money by representing

- that Colombia Resources Ltd., a company which they con-

trolled, could obtain the desired financing; and with obtaining

‘‘advance’’ fees from these businessmen by means of certain

fraudulent misrepresentations.

The petitioner did not testify. However, during a recess

near the end of the government’s case, counsel for petitioner

and his brother,-Anthony DeLyra, informed the trial judge

that he was ‘‘contemplating the possibility’’* that either or

both of his clients would testify; that petitioner had a prior

criminal record, but that it consisted of two petty misdemean-

ors, the most recent of which occurred approximately twenty-

five years ago; and that it was not ‘‘directly related to this

type of situation.’’ Relying upon the recent Second Circuit

decision of United States v. Palumbo, 401 F.2d 270 (2d Cir.

1968),** counsel then requested the trial judge to rule whether

he would allow the government to bring out petitioner’s con-

viction if he were to testify.

The trial judge deferred ruling on the request at that time,

but on the next trial day, he announced that he had read the

Palumbo case and ‘‘I will not make an advance ruling.’’

The trial then proceeded, with petitioner not testifying.

* See petitioner’s brief in the court below (p. 29-30).

** That decision had held that a trial judge-had the discretion to

exclude a defendant’s prior conviction in an appropriate case

and to do so in advance of defendant’s testifying.

ae oe

aah i an lag Real yo SUES Ne IE

2 athe AR ae OR Sd aR Tet Bs Mos

ivi

On appeal, petitioner claimed that the trial judge’s refusal

to give an ‘‘advance’’ ruling as to whether he would permit

the prosecutor to use petitioner’s remote prior convictions to

impeach his credibility if he took the stand constituted an

erroneous failure to exercise his judicial discretion.

The court below, in affirming, disagreed. It conceded that

‘Palumbo stood for the proposition that a trial judge has

discretion to exclude evidence of prior crimes in an appro-

priate case and to decide to do so in advance of defendant’s

testifying’’ (20a) (emphasis supplied). However, it went

on to say. that ‘‘. . . while such practice may sometime be

desirable, Palumbo does not Suggest ... that it is neces-

sarily error for the judge to defer exercising that discretion

until the defendant has in fact testified” (20a-21a).

Reasons for Granting the Writ

The court below has decided an important question

of federal law which should be settled by this court:

whether federal district courts should have the discre-

tionary power to prohibit the prosecutor from using a

defendant’s prior convictions to iiapeach him should

he testify, and if so, whether the defendant has the

right to a ruling in advance of his having to take the

stand.

There presently exists within the federal circuits a seri-

ous split as to whether federal district courts may, under

appropriate circumstances, prohibit the prosecutor from

impeaching a defendant by means of a prior conviction. The

courts of appeals in the D.C. and Second Circuits have held

that they may. See Luck v. United States, 348 F.2d 763 (D.C.

Cir. 1965) ; United States v. Palumbo, 401 F.2d 270 (2d Cir.)

cert. denied, 394 U.S. 947 (1969).

A number of other circuits have specifically ruled to the

contrary, adhering to the ‘‘orthodox or conventional rule’’

which does not permit any ‘‘balancing of factors’’ by the

district court. Burg v. United States, 406 F.2d 235 (9th Cir.

1969) ; United States v. Plata, 361 F.2d 958, 962 (7th Cir.

1966) ; Smith v. United States, 358 F.2d 683. (3d Cir. 1966) ;

Montgomery v. United States, 403 F.2d 605, 611 (8th Cir.

1968). , f

There has been an apparent growing uneasiness that im-

peachment of a defendant through the use of his prior con- |

victions not only casts doubt upon his credibility, ‘‘but also

may result in casting such an ptmospigre of aspersion and

disrepute about the defendant’as to cdnvince the jury that

he is an habitual la-bredkeyy who shduld be punished and

confined for the general good of, the community.’’ Richards

v. United States, 192 F.2d 602; 605 (D.C. Cir. 1951). See

Griswold, The Long View, 51 A.B.A. Journal 1017. :

Rule 6-09 of the Preliminary Draft of the Proposed Rules

of Evidence for the United States District Courts and @ ,

Magistrates, 46 F.R.D. 161 at 295-301, contains a proposed 3

rule which purports to deal with this problem. However,

when this rule or a modification thereof will be adopted as

law is uncertain; and in the meantime, continued adherence

by a majority of the circuits to the orthodox rule creates

unreasonable barriers to the defendants in those circuits

with prior convictions who wish to testify in their own

behalf.

Although there are, at present, no congressional acts or

federal rules applicable to the question under discussion,

this Court need not be bound by the common law orthodox

rule automatically allowing impeachment in every case,

See Rule 26, F.R.Cr.P. , |

“

; oe

This Court clearly has the right, in the exercise of its super-

visory power over the lower federal courts, to consider

whether there should be circumstances ‘under which a prose-

cutor, in the interests of insuring the defendant a fair trial,

should not be ‘allowed to impeach the defendant by means of

a prior conviction; and in that connection whether the defend-

ant should be able to obtain an advance ruling* from the trial

judge as to whether the impeachment will be allowed prior to

the defendant taking the stand.

The defendant’s right to testify at his own trial is undeniably

a part of due process. It is also undeniable that many defend-

ants pass up the opportunity of testifying in their own defense

because of the fear that the disclosure of their prior criminal

record to the jury will more than offset any good which their

testimony might accomplish. See Kalven and Zeisel, The

American Jury 124, 126-130, 144-146 (1966).

It is finally undeniable that the orthodox rule entitles the

prosecutor, as a matter of right, to use, in impeaching, con-

victions which because of their age or the nature of the crime

committed bear insignificant relationship to the relevant issue

of credibility but unmistakeably prejudice the defendant in

the eyes of the jury. Because of these factors, the Court should,

‘by granting certiorari in this case, take up the important ques-

‘tions here raised.

* This, as petitioner argued in the court below, is critical, for if

the exercise of discretion is deferred until after a defendant has

testified, few, if any, defendants who normally would not testify

because of their prior convictions would take the gamble that

the trial court, after hearing their testimony, would then choose

to bar any impeachment.

eo a

UE I RTO EDS 1 er

4 TRE

CONCLUSION

- The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted, ~

Jacos P. LerKowI1Tz

JosHua N. Koptovirz

Counsel for Petitioner

: Office & P.O. Address

150 Broadway—Suite 1401

New York, N. Y. 10038

APPENDIX

Opinion and ‘Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Nos. 624, 625, 626, 627—September Term, 1968.

(Argued May 23, 1969 Decided September 25, 1969.)

Docket Nos. 33130, 33181, 33132, 33133

Unirep Srates oF AMERICA, ©

Appellee,

—against—

Frank Crisoxa, AnTHoNy DeLyra, Jonn DeLyra, and

Frank Luoyp Parks,

Defendants-Appellants.

Before: : 7

Lumsarp, Chief Judge,

Frtnperc, Circuit Judge, and Timsers, District Judge."

»<

Appeals from convictions after a jury trial in the United —

~ States District Court for the Southern District of New

York, Thomas F. Murphy, J., for fraud and conspiracy to

defraud in violation of 18 U.S.C. §§ 371, 1341, 13438, 2314.

Affirmed.

Maurice Epetpaum, New York, N. Y., for appellant

; ©

Crisona.

James M. La Ressa, New York, N. Y., fur Appellant

Anthony DeLyra. :

“«

* Chief Judge of the District of Connecticut, sitting by designation. _

Kinte

Appeéndix—Opinion and Judgment of the Court of Appeals

JosHua N. Kortovirz, New York, N. Y. (Koplo-

vitz and Fabricant, on the brief), for Appel-

lant John DeLyra.

Kucene J. Moran, New York, N. Xx, for Appellant

Parks. ‘

James D. Zinn, Assistant United States Attorney

(Robert M. Morgenthau, United States Attorney

for the Southern District of New York, Kevin |

J. McInerney, Elkan Abramowitz, Assistant

United States Attorneys, on the brief), ‘bel

‘Appellee.

FErnserG, Circuit Judge:

This appeal is from four judgments of. conviction entered

in the United States District Court for the Southern Dis-

_ trict of New York on December 11, 1968, after a four week .

trial before Thomas F. Murphy, J., and a jury. Defendant

Frank Crisona was found guilty on ten counts covering

violation of the wire fraud statute, 18 U.S.C. § 1343, in-

ducing interstate travel in execution of a fraud and inter-

State transportation of the proceeds of a fraud, 18 U.S.C.

§ 2314, and conspiracy, 18 U.S.C. § 371. Defendants Anthony

and John DeLyra were found guilty on substantially simi- ~

lar counts and also on one count of mail fraud, 18 U.S.C. |

§ 1341. Frank Lloyd Parks.was convicted of a total of

seven counts for wire and mail fraud, interstate travel in

execution of a fraud, and conspiracy. The first three defen-

dants were each sentenced to three years, and Parks to

£ ; one year, imprisonment on all counts to run concurrently,

Rt Ce OED Gt Senate hai 2 sep

Appendix—O pinion and Judgment of the. Court of Appeals

Prior to trial two other defendants, Dominic C. Lonardo

aud. Jolin Martin Neiman, pleaded guilty to one and 17

counts, respectively, and .subsequently Neiman testified as

a government witness. | a

I. THe Conspiracy

The indictment charged all four appellants, Neiman and

Lonardo with conspiring to defraud and actually defraud-

ing many individuals and corporations. While only Parks

challenges the sufficiency of the voluminous evidence dev

oped at trial, a summary of the numerous and complex

financial dealings which underlie appellants’ convictions is

helpful in considering the various legal issues raised. The

evidence introduced by the Government allowed a jury to find

the following.

Crisona, a former Assistant District Attorney for Queens

County, New York, first met Neiman, whom the Government

aptly describes as a ‘‘ professional confidence man with a long

criminal reeord,’’ in October 1964, when they engaged in a

joint attempt to salvage financially a summer camp in which

Crisona had an interest. The attempt failed, and the camp

was lost, leaving Crisona $15,000 in debt to a loan shark, but

the business association between the two men survived. In the

summer of the following year, Neiman entered into negotia-

tions with one William Sikora, a New Jersey real estate

operator, to provide Sikora with a commitment for a

$3,000,000 loan, and persuaded him to pay a security deposit

of $10,000 in the form of a check made out to Crisona, as at-

torney, to be held in escrow pending the funding of the loan.

Crisona promptly cashed the check and split up the proceeds

between himself, Neiman and Crisona’s loaw shark. Ap-_

Te Gm

. ta

Appendix—Opinion and Judgment of the Court of Appeals

parently during this period Crisona first. met Anthony De-

Lyra, with whom Neiman had done business in the past, and

Parks, a former stockbroker who used an office in the same |

building as John DeLyra. Anthony was introduéed to Sikora

as an individual who would advance sums for the latter’s loan

and Parks was presented to him as the stockbroker who

was going to handle the financing. Evidently no loan was

ever consummated.

In October 1965, Neiman and the DeLyras somehow came

into possession of a stolen $9,200 cashier’s check payable

to a recently deceased woman named Mary McCarthy.

Pursuant to Crisona’s suggestion a joint checking account

in the names of Mary McCarthy and a fictitious John

O’Brien was opened in a branch. of the Franklin National

Bank and the check deposited in it. Within the next few

days Crisona’ signed two checks, in the name of John

O’Brien for $5,600 and $3,500 and he and Neiman then

cashed them at the bank and divided up the proceeds among

themselves and the two DeLyras, The bank, however, dis-

covered that Mary McCarthy was dead. The check was dis-

honored, and Crisona \was notified that he would be held

‘ responsible for the $9,100 overdraft.

In November 1965,’ Neiman, Crisona and the DeLyras,

who were apparently all in debt, and Parks, who was un-

employed, devised their Basic scheme of utilizing a foreign

corporation ‘owned by John, DeLyra, Columbia Resources,

Ltd., to issue real estate financing commitments. To make

the corporation appear financially sound, they prepared a

false financia] statement showing a net worth of $11,-

000,000," which was submitted to Dun and Bradstreet as

: This was later altered to show even greater worth.

- .

Appendisx—Opinion and Judgment of the Court of Appeals

a busis for a credit rating, along with false resumes of the

backgrounds of four officers of Columbia, two of whom

were pseudonyms for Neiman and Anthony DeLyra. Utiliz-

ing this false statement, and the excellent Dun and Brad-

street rating they eventually received, and variously

presenting themselves as officers of the corporation, often

under assumed names, the defendants thereafter used Co-

lumbia Resources us a front tor obtaining advance fees

from various individuals and corporations in return for

letters of intent or commitments to secure real estate financ-

ing. In most instances the advance was presumably to be

held in eserow by Crisona, as attorney, pending the funding

of the loan, but was in fact immediately distributed among

Neiman and the defendants. None of the Columbia loan

financings Was ever consummated.

The specific transactions of this nature which form the

basis of the various counts on which appellants were indicted

may be outlined briefly, as they all follow substantially the

same pattern.

(1) Kline. In November 1965, Neiman was referred to

a Boston .real estate developer, Sydney Kline, to whom he

sent u copy of the false financial statement and offered a

commitment for a $700,000 first mortgage to finance a nurs-

ing home which Kline planned to construct. A man named

Graeber, acting for Neiman, went to Boston and attempted

to secure a two per cent standby fee or deposit from Kline

in return for a commitment letter. At Gracber’s suggestion

Kline spoke on the telephone to Crisona, who assured him

that Columbia was a reputable firm which he had often

represented and that Kline’s check for the udvance fee

would be held in escrow pending completion of the transae-

+ "ow"

cine, on eR

Appendiz—Opinion and Judgment of the Court of Appeals

tion. Kline then wrote out a check for $13,500 to Crisona

which Crisona, when he received it, promptly cashed and

distributed among his colleagues.

In late December, a second commitment of $125,000 for

another nursing home was arranged with Kline after a pur-

ported appraisal of the property by John DeLyra, under a

false name, who elicited another standby fee check for $2,500

which was again supposed to be held in escrow. When Kline

became suspicious of the lack of progress in the financing

he called Crisona and asked for his money back, but was

told that it had been turned over to Columbia.

(2) Sumrise Mountain Corp. In December 1965, Neiman

made ‘contact with A. Earle Brown, the owner of Sunrise

Mountain, a development corporation which was in Chap-

ter XI reorganization; Brown was seeking a $3,000,000 loan

for a real estate project in Las Vegas. At initial meetings

between Brown, Neiman—under an assumed name—and

Crisona, it was agreed that Sunrise would pay a $30,000

standby fee to Columbia for a $3,000,000 loan commitment.

Crisona assured Brown of the corporation’s reliability and

its‘ ability, based on the false financial statement, to fund

the loan. Subsequently, Brown and his attorney, Richard

Crake, met with Crisona, Neiman and Parks, who was intro-

duced as a Columbia officer who acted ‘as a West’ Coast liaison

man. Crisona again made assurances of his own and Colum-

bia’s respectability and it was agreed that out of the standby

payment Crisona would receive a $7,900 attorney’s fee with

_ .the balance being placed in escrow. As the date when the

* funding was scheduled drew near, however, Crisona per-

suaded Brown and Crake, who was co-escrowee with Crisona,

Appendixc—Opinion and Judgment of the Court of Appeals

to release the escrow fund, finally assuring them that the

_ closing of the funding would take place the same day. Crisona

immediately deposited the escrow check and distributed the

proceeds, using a portion of them to pay off the overdraft

‘ eaused by the MeCarthy-O’Brien transaction. He never

showed up for the closing, which continued to be repeatedly

postponed with a variety of excuses. During January 1966,

Crake had a number of telephone conversations with Neiman,

Crisona, and Parks, at least some of which he tape recorded.

On January 19, Crake and Brown finally went to the office

of the United States Attorney for the Eastern District of

New York and requested an investigation of Columbia.

(3) Tuller. At approximately the same time, Neiman and

Anthony DeLyra, again using false names, obtained a check

for $8,500, in return for a letter of intent to obtain a $850,000

loan for a Julliard Tullar of Silver Springs, Maryland. As

usual, the closing of the loan was repeatedly delayed and

as a result, the mortgage on Tuller’s property v was foreclosed

at a loss of $300,000.

(4) Menlove. In February 1966, Parks and Neiman per-

suaded Roy Menlove, A Salt Lake City motel ‘owner, to put

up an advance fee of $11,000 for. a prospective $1,100,000

_ loan by. Columbia, after Parks-had conducted an ‘‘appraisal”’

of Menlove’s property and Menlove had -been* furnished a

copy of the Dun and Bradstreet report based on the false

financial statement on Columbia. The loan closing was twice

adjourned and never took place.

(5) Fazio. In return for a letter of. intent to peovids a

$1,500,000 joan for a motel, a Mr- Fazio in Cleveland gave

Neiman a check for $11,500 on account. The loan was not

funded. =|

(

ee °

Appendix—Opinion and Judgment of the Court of Appeals

(6) Howard Romé. In April 1966, after negotiations be-

tween Neiman, Parks, John DeLyra, Crisona and a Howard

Rome in Cleveland, it was agreed to arrange a $1,350,000

loan for Rome with a $13,500 advance fee. Once again these

negotiations involved an “‘appraisal’’ by Parks, false finan- -

cial information, aliases and a variety of lies about the

identity and experience of purported Columbia Resources

executives, Crisona dissuaded Rome from putting the ad-

vance in escrow and it was divided among various partici-

pants.

(7) Indianapolis. In July 1966, Neiman and John DeLyra

persuaded Morris Mitchell and Ary Infante, Indianapolis

businessmen, to advertise that their company had funds

available for loans and to refer prospective customers to

Columbia in return for 25 per cent of advance fees collected.

Over the following weeks Neiman and the two DeLyras col-

lected a total of $19,000 in advance fees from customers so

recruited.

Defendant Crisona testified in his own behalf that he had

acted exclusively as a lawyer in the transactions with which

he was involved, that in effect he was innocently misled

by Neiman and that he never intended to detraud anyone

_ or knowingly «made any false representations. By its verdict

the jury clearly discredited this testimony. Defendant Parks_

testified that he was unaware of the fraudulent nature of

the enterprises and that the appraisals he conducted were

done in good faith. Neither of the DeLyras took the witness

stand. ;

On appeal, defendants jointly and Separately raise a num-

ber of claims of error in the proceedings below. In addition,

appellant Parks attacks the sufficiency of the evidence against

Appendix—O pinion and Judgment of the Court of Appeals

him. We will discuss these various arguments in turn; as

will be seen, we find none of them persuasive.

LL. Farteure to TurN Over Tare Recorvines

Crisona’s main argument on appeal, adopted by all of

the other defendants insofar as applicable to them, relates

to the district court’s refusal to order the Government to

turn over to the defense tape recordings made by Crake,

the lawyer in the Sunrise Mountain Corporation transac-

tion, of .various telephone conversations. Crake testified

about one such conversation, held on January 18, 1966, in

which Crisona told Crake that the $7,500 advance fee had

been turned over to Columbia Resources, reassured him

that the corporation was ‘‘legitimate,’’ and described to him

some of the other successful ‘‘deals’’ by Columbia on which

Crisona had worked. Toward the end of Crake’s direct

testimony, he identified a tape, which was subsequently

received in evidence and played to the jury, as a recording

of this January 18 telephone conversation. Crake also

recorded a number of other telephone conversations in-

cluding several with Crisona and Neiman and Parks.

Crake turned these tapes over to the F.B.L, but none was

introduced at trial except for the one of the January 18

conversation. At trial,*defense counsel called for the pro-

duction of all of the tapes, basing their request alterna-

tively on 18 U.S.C. §3500, “Rule 16 of the Federal Rules

of Criminal Procedure, and the doctrine of Brady vy.

Maryland, 373 U.S. 83 (1963). The trial judge denied dis-

closure of the tapes on all three grounds, and all ure raised

here on appeal. Defense counsel also asked the judge to

listen to the tapes himself or to mark and seal them as

Te, ees

10a

* Appendix—Opinion amd Judgment of the Court of Appeals

a court exhibit for appellate review, but he declined both

suggestions, :

1. Section 3500

Appellants’ first argument is that the tapes should have

been turned over to the defense under the provisions of the

Jencks Act, 18 U.S.C. §3500:

(a) In any criminal prosecution brought by the

United States, no statement or report in the possession

of the United States which was made by a Government

witness . . . to an agent of the Government shall be

the subject of subpena, discovery; or inspection uutil

said witness has testified on direct examination in the

trial of the case.

(b) After a witness called by the United States has

testified on direct examination, the court shall, on motion

of the defendant, order the United States to produce

any statement (as hereinafter defined) of the witness in

the possession of the United States which relates to the

subject matter as to which the witness has testified.

Under subsection (e) the term ‘‘statement’’ as used in sub-

section (b) is defined as:

(1) a written statement made by said witness and

signed or, otherwise adopted or approved by him; or

(2) a stenographic, mechanical, electrical, or other

recording, or a transcription thereof, which is a sub-

stantially verbatim recital of an oral statement made

by said witness to an agent of the Government and

-recorded contemporaneously with the making of such

oral statement.

The court below declined to order the tapes turned over

to defense counsel under section 3500. The apparent ground

lla .

Appendix—O pinion and Judgment of the Court of Appeals

for the ruling was that -Crake had not testified about any

recorded conyersation other than the one on January 18—

the transcript and tape of which were turned over since

the Government introduced them into evidence—and there

was no showing that the remaining tapes related to the

subject matter of the direct testimony. We need not con-

sider the correctness of this restrictive interpretation of

section 3500(b), see United States v. Birnbaum, 337 F. 2d

490, 497-98 (2d Cir. 1964), since we find that the tapes were

not ‘‘statements’’ within the meaning of the Jencks Act. The

tapes of these teleplione conversations do not come within

subsection (e)(2) as they are not recordings of oral state-

ments made to a government agent. Nor, as appellant

Anthony DeLyra contends, are the recordings and the tran-

scripts made from them ‘‘in effect’’ a written statement under

subsection (e) (1). -

Our decision in United States v. Birnbaum, supra, is not

inconsistent with this analysis. There we upheld the re-

fusal of the trial judge to turn over to the defense tape

recordings of two conversations between the defendant,

indicated for bribing an Internal Revenue agent, and a gov-

ernment witness. While we noted that ‘‘[t]here is no dis-

- pute that the transcripts [of the recorded” conversations] —

are ‘statements’ within the meaning of subsection (e) of

the Act,’’ 337 F. 2d at 497, that dictum was based on cir-

cumstances in which the recordings were made at the di-

rection of the F.B.I. with the specific objective ‘‘to garner

evidence of appellant’s complicity in the bribery scheme.’’

Id. at 498. In the factual situation there present the state-

ments of witnesses might reasonably be construed as being

made ‘‘to an agent of the Government.’’ Indeed, there is

Re ae ae

12a

Appendix—O pinion and Judgment of the Court of Appeals

authority for interpreting the Jencks Act’ not to apply

at all to the sort of pre-investigatory communications

involved in this case. ‘Thus, the Seventh Circuit, upholding

a refusal to. turn over to the defense a contemporaneous

tape recording of a conversation between the payer and

the recipient of a bribe—witness and defendant, respec-

tively—in a subsequent prosecution for extortion, has de-

fined Jencks Act material succinctly:

A § 3500 statement is a recorded recital of past oc-

currences made by a prospective prosecution witness.

From its very nature, necessarily it is made after those

events have taken place.

United States v. Sopher, 362 ¥. 2d 523, 525 (7th Cir.), cert.

denied, 385 U.S. 928 (1966). Cf. Battaglia v. United States,

349 F, 2d 556, 560 (9th Cir.), cert. denied, 382 U.S. 955

(1965). We need not now decide whether we would sim-

ilarly limit the scope of material obtainable under the Act

in an appropriate case, although our dictum in Birnbaum

clearly looks the other way. It is sufficient for the purposes

of this appeal that the telephone conversations of witness

Crake were in no sense ‘‘to an agent of the Government.’”

2 The record indicates that at one point during the trial counsel for

defendant Parks speculated that Crake, since he had been to: see

~.the United States Attorney in Brooklyn, might have been acting

at the latter’s direction in taping the conversations and thus “as

an agent” of the Government. The trial judge suggested that

counsel could readily ascertain that fact by asking either that

government attorney or Crake. Counsel did not pursue the matter

further on the record. In any event, it is clear that Crake began

- taping the conversations before he visited the United States At- °

torney and there is nothing in the record to indicate (that he

continued to do so by virtue of governmental instructions,

13a

Appendiz—Opinion and Judgment of the Court of Appeals

2. Rule 16(a)

Appellants. next contend that the tapes or transcripts

should have been produced under Fed. R. Crim. P. 16(a):

Upon motion of a defendant the court may order

the attorney for the government to permit the defen-

dant to inspect and copy or photograph any relevant

(1) written or recorded statements or confessions made

by the defendant, or copies thereof, within the pos-

session, custody or control of the government, the ex-

istence of which is known, or by the exercise of due

diligence may become known to the attorney for the

government ....

The trial judge denied such a request on the theory that the’

section does not cover statements’ made by a defendant

prior to arrest.. On appeal the Government vigorously

defends that ruling, contending that ‘‘statements or con-

fessions’’ under Rule 16(a) do not include pre-arrest state-

ments made by a defendant during the course of the com-

mission of a crime. The question has divided trial judges;

the authorities were collected most recently by Judge Frankel

in the Southern District of New York in a thorough opinion.

United States v. Rosenberg, 299 F. Supp. 1241 (S.D.N.Y. 1969).

While noting that the judges of that district had reached dif-

ferent conclusions on the subject, he concluded that tape record-

' ings taken of conversations in which the defendant allegedly

offered an Internal Revenue agent bribes were clearly ‘‘state-

* Before the trial. Judge Mansfield denied a similar Rule 16(a)

motion by Anthony and John DeLyra on the ground that a re-

cording made at the time of an offense is not a statement under

16(a). United States v. Crisona, 271 F. Supp. 150, 157- and n.

15 (S.D.N.Y. 1967), modified in unpublished memorandum,

Jan. 10, 1968.

l4a

A ppendix—Opinion and Judgment of the Court of Appeals

ments’’ under Rule 16(a) and discoverable by defendant. For

similar district court rulings, see, e.g., United States v. Lubom-

ski, 277 F. Supp. 713, 719-22 (N.D. Ill. 1967) ; United States v.

lovjnelli, 276 F. Supp. 629, 630-31 (N.D. lll. 1967); United

States v. Leighton, 265 F. Supp. 27, 34 (S.D.N.Y. 1967); ef.

('mted States v. Baker, 262.F. Supp. 657, 671-72 (D. D.C.

1966). The bases of these decisions have been that the lan-

guage of amended Rule 16(a) is unqualified in contrast to

the limited definition of ‘‘statement’’ in section 3500, that the

Notes of the Advisory Committee indicate that the amended

Rule was intended to apply even to pre-arrest statements

made by a defendant during the course of his crime and was

meant to broaden materially the scope of discovery available

to a defendant,’ that such a statement is obviously of such

vital importance to the defense that fairness compels its dis-

closure, and that guilty pleas will thereby be encouraged. This

broad interpretation of ‘‘statement’’ in Rule 16(a) is sup-

ported by the recent recommendation of the ABA Project on

Minimum Standards for Criminal Justice, Standards Relat-

ing to Discovery and Procedure Before Trial 62 (1969) that

a defendant receive before trial all of his statements —

regardless of to whom they were made—whether a prose-

cuting attorney, an investigator, a grand jury..., or any-

one else. It is also intended that statements be discover-

able regardless of how they are obtained, whether

surreptitiously or voluntarily.

* In amending the Rule in 1966, the Advisory Committee noted

that :

The defendant is not required to designate because he may

not always be aware that his statements or confessions are

being recorded. . . . Discovery of statements and confessions

is in line with what the Supreme Court has described as the

“better practice” (Cicenia v. LaGay, 357 U.S. 504, 511

C195B) bs ; :

15a

Appendiz—Opinion and Judgment of the Court of Appeals :

We agree with these conclusions and see nothing in the plain

language of Rule 16(a) or ‘the Notes of the Advisory Com-

mittee accompanying it which would justify imposing the limi-

tation suggested by the Government. See United States v.

Knohl, 379 F.2d 427, 441-42 (2d Cir.), cert. denied, 389 US.

973 (1967) (dictum). 3

Having concluded that the tapes of defendants’ conver-

sations are ‘‘statements’’ under Rule 16(a), we must still

.decide whether failure to turn them over was reversible

error. The Government points out that the language of the

section is not mandatory—‘‘the court may order the attor-

ney for the government’’ (emphasis added)—and indeed

this has been the focus of another dispute in the district

courts over what showing of need, if any, a defendant must

make in the ordinary case to compel inspection of his state-

ment. E.g., compare United States v. Projansky, 44 F.R.D.

590 (S.D.N.Y. 1968), with United States v. Lewis Carreau,

Inc., 42, ¥.R.D. 408 (S.D.N.Y. 1967). We note that weighty

scholarly authority supports the proposition that withhold-

ing a defendant’s statement should be the exception, not the

rule, subject to the court’s power to impose a protective

order when appropriate. See ABA Project on Minimum

Standards for Criminal Justice, Standards Relating to

Discovery and Procedure Before Trial 52-53, 58-61 (1969) ;

8 Moore, Federal Practice 16.05[1] (2d ed. 1969). How-

ever, we neéd not discuss> that issue more fully because

the trial judge here ruled as a matter of law—not of dis-

cretion—that thé tapes did not qualify as statements.

On the facts of the present case, however, we hold that

the trial judge’s failure to compel disclosure of the tape

. 16a,

Appendix—O pinion and Judgment of the Court of Appeals

recordings under Rule 16(a) was not reversible error.

Aside from the one recorded conversation to which Crake

testified and which was played to the jury, a transcript of

whieh was furnished the defense, none of the others was

introduced in evidence. While none of the latter tapes was

utherwise made available to the defendants, we have closely

~ examined the transcripts’ of the tapes and find that they

contain no information which could reasonably have been

additionally useful to the defense. Moreover, we note that

the cumulative evidence of defendants’ guilt adduced at

trial was very substantial indeed. In sum, while the tape

recordings of conversations of defendants were ‘‘state-

ments’’ under Rule 16(a), we find that the court’s failure to

make: them available was not in fact harmful.* Cf. Rosen-

berg v. United States, 360 DS. 367 (1959); United States

. Annunziato, 293 F. 2d 373, 381-82 (2d Cir.), cert. denied,

368 U.S. 919 (1961). We are well aware that the usefulness

of such statements should ordinarily be assessed by de-

fense counsel rather than by us, and we expect that that will .~

be the procedure in the future. In any event, we will apply

the interpretation of Rule 16(a) that we adopt here to all

motions made thereunder after this opinion is filed. —

* These have been furnished to us by the Government, and we are

lodging them with the Clerk of the Court in a sealed envelope

pending further review, if any, of the case.

® We put to one side the fact that counsel for Parks did not speci- ~

fically request the tapes at trial. We note that it was not clear

-at trial that conversations with Parks had been recorded; that

information is disclosed by the transcripts of the tapes.

ee ee

17a

¥v °

Appendix—Opinion and Judgment of the Court of Appeals

3. Brady v. Maryland

The third ground of alleged error involving .the tapes

is based on the doctrine of Brady v. Maryland, 373 US.

83 (1963), under which the prosecution is required to turn

over to the defense any material evidence in its possession

which is favorable to the accused. Although the prosecu-

tion below represented to the trial judge that there was

no exculpatory or contradictory information in the tapes,

dciendants maintained that the trial judge should himself

‘sten to the tapes in order to determine whether the de-

fense was entitled to obtain them in the interest of justice.

The trial judge declined to do so, and appellants argue that

a government prosecutor cannot be expected to be able to

make a meaningful evaluation of what material may be

useful to defense counsel and that, at the least, possibly

useful material should be objectively reviewed by the trial

judge. We realize that the problem is a real one which

has been the subject of substantial discussion. See, e.g.,

ABA Project on Minimum Standards for Criminal Justice,

Standards Relating to Discovery and Procedure Before

Trial 73-78 (1969); Note, The Prosecutor’s Constitutional

_ Duty to Reveal Evidence to the Defendant, 74 Yale L.J.

136, 147-49 (1964).| However, appellants themselves con-

cede the lack of gt precedent for such a procedure, and

indeed, this court has very recently restated the present

legal principle that,| with certain limited exceptions not here

applicable, “the assurance by the government that it has

in its possession no undisclosed evidence that would tend

to exculpate defendant justifies the denial of a motion for

inspection that does not make some particularized showing

OO I OT TO LOL A AE GN

eT ase irs to eaten alt Dee *

es.

—.

“Je 18a

: | Appendix—Opinion and Judgment of the Court of Appeals

of materiality and usefulness.’’ United States v.-Evanchik,.

F’. 2d ; (2d Cir. July 16, 1969). The request

here was for a known item—tapes of conversations to

which one or more defendants were parties; the record

below discloses no such particularized showing of need;

and as we have already noted, we have examined the tran-

script of the tapes and found it to contain nothing that

would have been additionally useful to the defense.

OI. Tue McCarruy-O’Brien TRANSACTION

Appellants’ next argument is that evidence about the

fraudulent bank ‘account established with the check of the

deceased Mary McCarthy, introduced over their objections,

should have been excluded because its probative value was

far outweighed by its prejudicial effect. In addition, they

objeét to the Government’s introduction of: false grand

jury testimony by Crisona relating to the transaction and

cross-examination in which Crisona repeatedly contra-

dicted that testimony. The Government contends, on the

other hand, that the check episode was admissible to show

motive for appellants’ subsequent conduct, i.e., proceeds |

from the Sunrise Mountain Corporation fraud were needed

and used to pay off the $9,100 overdraft created when the

MeCarthy check was stopped. Secondly, the Government jus-

tifies the introduction of the transaction and Crisona’s grand

jury testimony about it as relevant to Crisona’s credibility.

It lus been this court’s ‘‘consistently held position that

evidence of similar acts, including other crimes, is admis-

sible, for any relevant purpose other than merely to show

defendant's bad character.’’ United States v. Johnson,

q :

———

Wb nae

it SRS ARR SELES

19a

Appendiz—Opinion and Judgment of the Court of Appeals

382 F. 2d 280, 281 (2d Cir. 1967}. We do not think that

the substantial and -pressing financial obligation arising

from the transaction is of insignificayt probative value on

the issue of appellants’ motivation ‘for their subsequent

frauds. Cf. United States v. Kahaner, 317 F. 2d 459, 470-

72 (2d Cir.), cert. denied, 375 U.S. 836 (1963). Nor are

we impressed by the magnitude of the prejudicial impact

of what appellant Crisona terms ‘‘the repulsive tale as to

the theft of the dead woman’s check’’ in the context of ap-

pellants’ numerous other financial misappropriations. Cf.

United States v. Bradwell, 388 F. 2d 619, 622 (2d Cir.),

cert. denied, 393 U.S. 867 (1968); United States v. Jordan,

399 F. 2d 610, 612-13 (2d Cir.), cert. denied, 393 U.S. 1005

(1968). Moreover, it was the defendants themselves who, -

on cross-examination of government witness Neiman,

brought out the ‘‘repulsive’’ aspects of the affair—that the

check was stolen and that Mary McCarthy was dead. Finally,

the trial judge took pains in his instructions to the jury .

to limit the effect of the evidence. Appellants rely heavily

on the decision of this court in United States v. Byrd, 352

F’, 2d 570 (2d Cir. 1965). But we have made clear that Byrd

itself only ‘‘reiterated that where the pertinent factors have

been duly considered, the admissibility of the evidence is a

matter in which the trial judge should be allowed a wide

range of discretion.’’ United States v. Deaton, 381 F. 2d 114,

118 n. 3 (2d Cir. 1967). Assessing the ‘‘pertinent factors’’

here involved, we do not think that the trial judge abused

his discretion. .

20a

soe eo poe * m8

Appendix—Opinion and Judgment of the Court of Appeals

IV. Farmure Tro Rute in ADVANCE ON

_ DEFENDANTS’ CONVICTIONS

Appellant Johp DeLyra contends that the trial judge erred

in refusing to at an advance ruling with regard to the ad-

missibility for impeachment purposes of certain prior con-

victions. During a recess on a Friday near the end of the

Government’s case, the attorney for both John and Anthony

DeLyra informed the judge that he was ‘‘contemplating the ~

possibility’? that cither or both would testify but that he un-

derstood that both had been convicted of crimes 25 or more

years before; he requested the court to rule whether it would

allow the Government to bring out the convictions if the de-

fendants were to testify. The following Monday the trial

judge declined to make such an advance ruling. On appeal,

we are told that John DeLyra had been convicted of vagrancy

and of petit larceny in 1935, and that between 1937 and 1940

he was charged with concealment of leased property, for which

he was ultimately fined $300.7 Appellant, relying largely on

this court’s decision in United States v. Palumbo, 401 F. 2d

270 (2d Cir. 1968), cert. denied, 394 U.S. 947 (1969), argues

that these ancient and relatively minor convictions should not

have been available to the Government to impeach his credi-

bility and that the trial judge had discretion to prevent such

use and should have so ruled before appellant decided whether

to take the stand. ang

It is true that Palumbo stands for the proposition that a

trial judge has diseretion to exclude evidence of prior crimes

in an appropriate case-and to decide to do so in advance of |

defendant’s testifying. However, while such a practice may

* Anthony DeLyra apparently does not press this claim of error on

appeal; in any event, our disposition of it would be the same.

XS AAS RE ND IIS sont

PREPARA I ay wince RR

a ee Sal an WASP REET: ke en

a os ag eS PRE EE RN

a ee Le Le a

wt ,

é : °

21a |

Appendix—O pinion and Judgment of the Court of Appeals

sometimes be desirable, Palumbo does not suggest, as appel-

lant would have us rule, that it is necessarily error for the

judge to defer exercising that discretion until the defendant

has in fact testified. Indeed, in Palumbo itself, we stressed

that the trial judge has discretion in this area, see 401. F.2d -

at 274, and we have subsequently approved a district court’s

discretionary refusal to make advisory rulings in similar cir-

cumstances. See United States v. Evanchik, —— F. 24 ——

(2d Cir. July 16, 1969); United States ‘vy, Hart, 407 F. 2d

1087, 1088-89 (2d Cir. 1969). Under these circumstances, we

hold that there was no abuse of discretion in the trial judge’s

failure to make an anticipatory ruling.”

VY. OBJECTIONS TO JURY INSTRUCTIONS

1. Charge on intent

Appellant Anthony DeLyra contends that the trial judge,

in instructing the jury, failed to make clear that the ele-

ment of criminal intent must have been proved as to each

of the charges beyond a reasonable doubt. In charging on

the many different counts, the judge repeatedly included in-

tent or knowledge as one of the elements which the Govern-

ment had to establish beyond a reasonable doubt as to each

offense. Immediately after the charge, defense counsel took

exception to the court’s failure specifically to instruct the

jury on the elements of witfulness and knowledge. Conse-

quently, the judge then gave the supplemenial charge:

Ladies and gentlemen, I am told that in my charge

in explaining the counts .. . that I called the wire

crimes and travel crimes and the transport-money-by-

fraud crimes, I neglected to tell you one of the elements

that the government must prove with regard to each

22a

Appendix—O pinion and Judgment of the Court of Appeals

defendant accused in those crimes is that he did the

act compiained of knowingly and wilfully; and that

means that he had to have an evil intent at the time

of the alleged crime; not something that he did neg-

ligently or accidentally but purposefully. In other words,

_ he had a eriminal intent when he is alleged to have

committed these crimes.

Appellant apparently argues rthat the court should have

again stated that this element of the crime had to be preved

beyond a reasonable doubt. In view of the judge’s prior

instructions, this was unnecessary. Indeed, defendants made

no further objection. Cf. United States v. Indiviglio, 352 F. 2d

276 (2d Cir. 1965) (en banc), eert. denied, 383 U.S. 907

(1966). ae

2. Missing witness charge

Appellant John DeLyra raises as error the trial judge’s

instruction on missing witnesses. In his summation coun-

sel for Crisona several times called attention to the failure

of the Government to summon certain individuals as wit-

nesses; in reply, the prosecuting attorney noted that the

defense cotid have obtained the presence of witnesses by

subpoena. In his ‘jury charge, the trial judge commented:

During summations there was considerable reference

to where a certain witness was and to the fact that he

wasn’t called. In a federal criminal trial both the gov-

ernment and a defendant are entitled to receive from

the clerk of the court a subpoena calling for the at-

tendance of a witness, and no matter where the witness

lives in the United States, he is required to appear

wiffn served with such a subpoena.

Now, X or Y or Z could have been cailed by either

side as a witness, so that from the failure of either

RETIN TIN CORASS

> Te Fay.

23a

Appendix—Opinion and Judgment of the Court of Appeals

‘side to call him or them you may infer that his or

their testimony might have been unfavorable to either

the government or to a defendant, but it is equally

within your discretion to draw no inference at all from

the failure of the wish aie or a eet to call

X or Y or Z.

Appellant argues - that allowing the: jary to draw an un.

- favorable inference from his failure to call a witness in-

fringes upon his right to rest upon the Government’s bur-

den of. proof. But -we have long held that it is proper to

instruct the jury that ‘‘the failure to produce such a witness

is open to an inference against either party.’’ United States

v. Dibrizzi, 393 F. 2d 642,-646 (2d Cir. 1968); see United

States v. Armone, 363 F. 2d 385, 404-05 (2d Cir.), cert.

- denied, 385 U.S. 957 (1966); United States v. Evanchik,

supra, F.2d at . Additionally, appellant argues that

this charge is only permissible where the witness is ‘‘equally

available’ to both sides, that the power to subpoena does

not establish ‘‘equal availability,’’ and that in fact the wit-

nesses referred to were not “‘as a practical matter’’ avail-

~ able to the defendant. We noted in United States v. Armone,

supra, 363 F. 2d at 405, that ‘‘[i]f the court had stated that

a witness was available who was not, in fact, available, a

different picture might have been presented,’’ but defendant

made no assertion either below or here on appeal that any

specific individual was unavailable to him. Indeed, no ex-

ception whatever was taken to the charge, which is sufficient

in itself to be dispositive. See United States v. Indiviglio,

supra. In sum, we find no merit in appellants’ objection to

the charge:

24a

Appendix—Opinion and Judgment of the Court of Appeals .

VI. Improper Juror Discussions

Shortly before the charge, counsel for the DeLyras rep-

‘resented to the judge that there had been improper dis-

‘cussions among the jurors. Rose DeLyra, sister-in-law of

_ the Deluyras, then testified that a few days: before she had

heard three female jurors discussing the case in the ladies’

room and that one of them had said ‘‘He’s guilty,’’? and

another, ‘‘If you ask me they’re all guilty.’” Mrs. DeLyra

said she could identity with certainty only one of the women

and was uncertain who had said what. Counsel for the De-

Lyras requested an inquiry of the jurors and the trial judge

agreed that he would conduct one. Subsequently the judge

did confer in camera with each of the four female jurors and

a female alternate juror, and stated that he was satisfied

that there was no basis in fact for Mrs. DeLyra’s testimony.

- On appeal, John DeLyra claims that the judge should have

conducted a hearing in open court on the matter with defense

counsel present. However, there is no indication that any de-

fense” counsel ever requested such a hearing, objected to the

judge’ s course of action, or even took exception to his con-

‘clusion. Consequently there is no merit to appellant’s con-

tention. See United States v. Kahaner, 317 F. 2d 459, 482-83

(2d Cir.), cert. denied, 375 U.S. 836 (1963). Moreover, the

procedure adopted by the judge seems to-have been reasonable :

under the circumstances. Sée Miller v. United States, 403 F.

2d 77, $1-82 (2d Cir. 1968) ; ef. United States v. Woodner, 317

I’. 2d 649, 651-52 (2d Cir.), cert. denied, 375 US. 903 (1963).

DiS Reg eR RL Selo ee |

‘4

poe ae he. ie Get Prion rad fre Ria aes teas Nee een at

GR anny Teak Sie Tel ably meus bs y a

3 . 25a

Appendix—Opinion and Judgment of the Court of Appeals

VIL Surricmency or THe Evience Acarnst Pars

The main argument of appellant Parks is that the evidence

| against him was insufficient to support his conviction, and that

there was no showing that he knowingly participated in the

illegal schemes or had any motive for such a participation.

Taking the evidence, as we must, from the view most favorable

to the Government, we find sufficient grounds on which the

jury could reasonably have reached its conclusign as to appel- —

lant’s guilt. To summarize the most important facts:. Parks

was present at meetings among the conspirators at which the

details of the scheme were planned and carried out; he re- >

ceived substantial shares of the proceeds of fraudulently ob-

tained advance fees; he presented himself, or was presented,

- to various victims under aliases and in false capacities and

made a variety of misrepresentations to these victims about

Columbia Resgurces. In the light ‘of his intimate and _pro-

longed connection with the other defendants and their ‘illegal

enterprise it is not surprising that the jury found unpersua-

sive his assertion that he was merely an innocent dupe.

Parks raises a second claim of efror relating to an allegedly

prejudicial line of questioning by the trial judge about ter-

tain written appraisal records, but we find it — without

merit.

J udgments affirmed.

‘

' ,

MTS AIA SELENE STORET IE IAEA RE I, I ET rt en rn eRe

ee ey a

INDEX

Page

Oxinion below... .....5 ccc ci newee nee beeen 1

FUMING. 5 oo acd cine cobaneonnnndeeneeee 2

Questions presented .. 0. .6s<Kcckcuwnsswsuswegeupenennee 2

Rule volved... oc5 cic bvcee sd oaeeeee Aided eens 2

Piatenetit: oo cccccoesnswasdconeuness tne 3

ANCA os. os ess ea ae pune wibanvieen 8

mmmrumiaa csi 2) gE jaan iemune 1}

CITATIONS P Tasetse

Cases:

Alderman v. United States, 394 U.S. 165_____- Nae Ee 8,9

Brady v. Maryland, 273 U.S. 83. ..-.-2----.------- 8, 9

United States v. Hart, 407 F. 2d 1087, certiorari

denied, 906. U.S. 9102 6.0 cc. cs ee eee 10

United States v. Palumbo, 401 F. 2d 270, certiorari

dented, 304 UB, OAT ss ood ie oer eee 10

United States v. Sternback, 402 F. 2d 353, cortiogasi

dented, 308 U.S. 1008: icy cus oe 11

Statutes and rules: 3

18: UB.O. S600: ssc oe ee 8 .

Role 16, F.3. Ci. Ficccccs seule cere

376-878—70 =

SMT IEE, on

SMELT EET INN, ALLIS PRT Neh MPP tae

APR BTR R RATS

4 RTT eR TE Se Sect hte nad

Sceeieetiehnenent’ Seediiememmetteee ad we en —

: 9

. f

en > /

. .

Bas

« é '

‘

5 e °

: '

° ‘

5 P .

¢ P ‘

. .

os :

. 4

j F |

o °

' : °

‘

. “a °

- -

‘ ? - ,

- " ’ ’

. * .

‘ ‘. H

. . .

° { .

‘

, .

¢ : 5

, . - ‘ 7

> ‘ .

oe m ‘3

’

. - '

. %

‘

4 : : a |

: ‘

Py . . e

- 5 : ‘ o*

." ;

2 .

Jn the Supreme Court of the United States

OcToBER TERM, 1969

No. 966

FraNK Lioyp PaRKS, PETITIONER

UnITED STATES oF AMERICA

No. 980

FRANK CRISONA, PETITIONER

Vv.

Unrrep STATES OF AMERICA

No. 981

JOHN DELYRA, PETITIONER

vail

UnitTep States or AMERICA

ON PETITION FOR WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals is reported at

416 F. 2d 107 (C.A. 2).

(1)

COT Tee te PO eee

sat al Se aS PE RN akioobte

MD | ghana acer

Pee ee

JURISDICTION

The judgment of the court of appeals was entered

on September. 25, 1969. A petition for rehearing on,

behalf “of - all. the petitioners was denied on Octo-

ber 24, 1969. Mr. Justice Harlan extended the time

for filing petitions for writs of certiorari on behalf

of all of the petitioners until December 23, 1969.

Park’s petition was filed on December 18, 1969, and

those of J. DeLyra and Crisona on December 20,

1969. The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

1. Whether, after determining that the district

court should have required disclosure of certain

recordings a lawyer for one victim of a fraud made of

his conversations with co-defendants, the court of

appeals was correct in concluding, after an in camera ~

examination, that the nondisclosure was harmless

error. |

2. Whether the district court abused its discretion

in failing to rule in advance on petitioner John

DeLyra’s objection to the use of certain prior con-

victions to impeach his credibility.

RULE INVOLVED

Rule 16(a) F.R. Crim. P.:

(a) Defendant’s Statements; Reports of Ex- |

aminations and Tests; Defendant’s Grand Jury *

Testimony. Upon motion of a defendant the

court may order the attorney for the govern-

ment to permit the defendant to inspect and

copy or photograph any relevant (1) written

or recorded statements or confessions made by

the defendant, or copies thereof, within the

possession, custody or control of the govern-

ment, the existence of which is known, or by

the exercise of due diligence may become

known, to the attorney for the government * * *.

’

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, Frank

L. Parks was convicted of 7 counts, John DeLyra’

of 13 counts and Frank Crisona of 10 counts charging

violations of various federal fraud statutes and con-

spiracy. Crisona and DeLyra were sentenced to im-

prisonment for concurrent terms-of 3 years and Parks

to concurrent terms of 1 year’s imprisonment (Pet.

App. la-25a).

As appears from the opinion below, the evidence

showed that petitioners and others offered to provide

real estate financing through a corporate shell which

they had made to appear financially sound through a

credit rating fraudulently obtained from Dun & Brad-

street. They charged clients an advance fee, usually

several thousand dollars, and represented that the fee

+ Another defendant, Anthony DeLyra, filed a petition which

has been separately answered. No. 870, this Term.

* To give the corporation an appearance of financial substance,

petitioners drew up a fraudulent balance sheet listing non-

existent assets (Tr. 1161-1165) under the name of a fictitious

certified public accountant supplied by petitioner John DeLyra

(Tr. 1150-1151). This false financial statement was submitted

to Dun & Bradstreet for a favorable credit rating (Tr. 1165-

1166), which was then obtained.

ee eee al tak oa haa

ERR ARIE WOE RD ee

1S PABER

was being placed in an escrow account; in reality, it

was immediately divided among the members of the -

scheme. The corporation, Columbia Resources, Ltd.

(“Colombia’”’), never obtained any financing for its —

clients, and never returned the advance fees. There

was specific téstimony as to.a number of loans.

\1. The first fraud petitioners perpetrated through

Colombia occurred in November, 1965. A Boston real

estate developer, Sydney Kline, was induced by John

Martin Neiman * to pay $13,500 as an advance fee in

return for a letter of commitment to finance a nursing

home (Tr. 1170-1174, 566). Kline paid the fee after

speaking with ) petitioner Crisona, who assured him

that Colombia was a reputable firm (Tr. 1177). Kline

obtained a secund commitment for a nursing home in

December, 1965, after petitioner John DeLyra, under

the name “Mr. Camera”’ (Tr. 1284), purported to ap-

praise the property (Tr. 571-574, 1187-1188). This

time, the advance fee Kline had to pay was $2,500

_ (Tr. 1188). The funds collected were promptly divided

among all the petitioners (Tr. 1179-1181).

2. In December, 1965, Neiman, Crisona and Anthony

‘DeLyra approached Julliard Tuller, who was trying

to refinance his debts. They offered to negotiate a loan

(Tr. 861-868). Afier collecting $8,500 from Tuller as

an advance fee (Tr. 867), they repeatedly postponed

the financing of the loan (Tr. 873-881). When Tul-

ler’s mortgage was foreclosed, He was unable to find

them (Tr. 882-884). ae

8 John Martin Neiman pleaded guilty to the charges against |

him and testified as a government witness at petitioners’ trial.

SEAN UR III. J tig AR SAREE NA Se AMR Sha LM I

u :

3. In February, 1966, petitioner Parks falsely rep- :

resented himself as an appraiser to Roy Menlove in

Salt Lake City, who was seeking a loan for his motel |

(Tr. 819). Parks inspected the property (Tr. 821)

and said that Colombia would be able to finance the

loan, showing him its Dun & Bradstreet rating (Tr.

820-822, 853-854, 1166). Parks wrote a favorable

appraisal of the property (Tr. 825), Again an ad-

vance fee was submitted, in the amount of $11,000,

and divided among petitioners (Tr. 826-828, 1279-

1280). Parks postponed the closing date for the loan

several times (Tr. 829-833). The loan, in fact, was

never negotiated.

4, In Mareh, 1966, a similar arrangement was made

with a Mr. Fazio of Cleveland, who remitted and lost

an advance fee of $11,500 (Tr. 1264-1265 ; 1300-1301).

d. In April, 1966, the petitioners met Howard Rome

in Fazio’s office (Tr. 400). Parks told Rome that

he was the vice-president in charge of appraisals

(Tr. 416). In order to persuade Rome to remit an

advance fee, Crisona produced the Dun & Bradstreet

rating (Tr. 423-426). After the fee was paid (Tr.

425-428) and had been divided (Tr. 1254), Rome re-

ceived a report from Dun & Bradstreet stating that it

had discovered that Colombia was a corporate shell

headed by Neiman, a man with a long criminal record

(Tr. 438-439). Crisona admitted to Rome that he

knew of Neiman’s criminal record and his aliases

INES EGY PRA POIRE A WEL IE OCS MIND a es ie AE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.