# Petition for Writ of Certiorari — Clark v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1293%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1036 ## Text Office-Sunreme So" FILED | SUPREME CO JRT, U. S. 9 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 a ‘ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT a 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 J | Reign nies: and J udgment of Court of Ap- } See eee Seat LT Tee eee eee er ree la ii 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 o ? IN THE Supreme Court of the United States October Term 1969 — No. Joun DeLyra, Petitioner, —against— Unrrep States or AMERICA, Respondent. -™ as 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. 2 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 eS 3 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 4 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). ~) f 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 “ 6! ; 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 > eg 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." » 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. : B i 4 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. —. 4 “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, 2 4 q : ——— Wb nae it SRS ARR SELES a i rt 4 Se | ae 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 : ° . t 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 a] & 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 v 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 | y a ee A Be 4 Bd a q s J Aa * ow ‘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 / . . Bas , « é ' ‘ . ts 5 e ° a : ' ° ‘ . 5 P . s . ¢ P ‘ , . . os : , ° . 4 j F | . 3 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) a COT Tee te PO eee sat al Se aS PE RN akioobte MD | ghana acer Pee ee 2 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 4 ERR ARIE WOE RD ee 1S PABER ae 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 : 5 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1293%3A6. Public record. Not legal advice.