Petition for Writ of Certiorari — Kahn v. United States

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a SNARY get

~ me Court, U.S. \

SUPREME COURT, ULE | — ge

In The

Supreme Court of the Ur

Octobcr Term, 1971

sath

Nn. WL -3934

HAROLD S. KAHN, |

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

IRVING ANOLIK

Attomey for Petitioner

225 Broadway

New York, New York 10007

732 - 3050

LUTZ APPELLATE PRINTERS, INC.

(4746) Law end Financial Printing

South River, N. J. New York, N.Y. Philadelphia, Pa.

(201) 257 - 6850 (212) 565-6377 he (21S) 563-5587

—— —_————— ».

INDEX

Page

Petition for a Writ of Certiorari see ee 1

CONNOR BONOW «csc ks eeeseveses a

Jurisdiction + e e i * 7 J = o 7 o * * e — a 2

Questions Presented seevseeveseeeee 2

Constitutional and Statutory Provisiuns In-

volved o oo . e t e + oe o e a e e e a - > e 3

Statement of the Case .....ccccecece 8

Argument:

I, The petitioner having been con-

victed in the United States District

Court had an unqualified right to

appeal to the United States Court of

Appeals. The Court of Appeals, upon

application of the Government, pre-

cluded an appeal because petitioner

had pleaded guilty after having made

certain legal motions of constitutional

Cimension, Petitioner never ex-

pressly waived his right to appeal. ... 6

Conclusion ee ee a ee ae Se ee

Order Dismissing Appeal Terr ee ee

tt

Indez

Page

Table of Citations

CASES CITED:

Anders v. California, 386 U.S. 738 oo) ee

Bergin v. MacDougall, 432 F.2d 935 (2

Cir. 1970) o . e e = e ” e e * e e * « s A 8

Brown v. Allen, 344 U.S. 443, 451-2,

491-2 e- ©¢ © @ @ 4 € ££ 6 @*@ DB GOD 46S DR SD *& 11

Burns v. Ohio, 360 U.S. 252 ....... “ae

Cochran v. Kansas, 316 U.S. 255 ....... 9

Coppedge v. United States, 369 U.S. 438... 9

Douglas v. California, 372 U.S. 353 .. 8, 9, 12

Dowd v. United Scates, 340 U.S. 206 .... 9

Gardner v. California, 393 U.S. 367 ..... 9

Griffin v. Illinois, 351 U.S.12 ...... 9,13

Johnson v. Zerbst, 304 U.S. 458, 464... 7,12

Maryland v. Baltimore Radio Show, 338

U.S. 912, 917-20 coeoep ere ee © © ee © © 11

McCarthy v. United States, 394 U.S. 459

(1969) ee ee ee ee (npc antecrans

Nowakowski v. Maroney, 386 U.S. 542 .... 10

ttt

Indez

Richardson v. McMann, 397 U.S. 759

(1969) i a ee ee ee) 8, 11

Sunal v. Large, 332 U.S. 174, 181 ..... 11

Taylor v. United States, (D.C. Cir.) 238

F.2d 259 e e s e e e e e e e e * e . e e oe 7

United States v. Carver, 260 U.S. 482,

490 e t @ e a * e e e = 2 e e & o os s e e 11

United States v. Doyle, 348 F.2d 715 (2 3

Cir.), cert. denied 382 U.S. 843(1965). .7,11,.12

Williams v. Oklahoma City, 395 U.S. 458... 9

RULES AND STATUTES.-CITED:

“ed, R. Crim, Proc.:

41(e) e e e e e e @ e e e e e e ° e e e es 6, 11

48(b) e e ee eee?eee e e ee eeee 6, 11

28 U.S.C. Sec. 1254(1) ee e e e * o ee ee ® 2

18 U.S.C. 201(b) e ve i e 2 es o wn c a 2 s _ : 1

UNITED STATES CONSTITUTION CITED:

First Amendment (eee © 6% 4 48 «4 eee

Fifth Amendment (se 68 Oe hee ee ew ee

Sixth Amendment Teer enr ee Tee eae

In The

Supreme Court of the Hnited States

October Term, 1971

—<—>—

_ No.

HAROLD S. KAHN,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Petitioner, HAROLD S. KAHN, respectfully

prays that this Court issue a writ of certiorari

to review the order of the United States Court of

Appeals for the Second Circuit which dismissed

the appeal pending before that Court without an

opportunity for oral argument and without an

been taken from a judgment of the United States

District Court for the Southern District of New

York convicting Petitioner of the crimes of con-

spiracy to defraud an agency of the United States,

namely the Internal Revenue Service (Count 1 of

the indictment); and a violation of 18 U.S.C. 201

(b) (Count 7 of the indictment) upon his plea of

guilty following the denial of certain motions which

sought a dismissal of the charges upon questions

of law.

The United States Court of Appeals rendered

no opinion. Its short decision and order is re-

produced in the appendix to this petition.

Jurisdiction

The jurisdiction of this Court is invoked under

Title 28 United States Code, Section 1254(1). The

Court of Appeals Second Circuit granted the

Government’s motion to dismiss the appeal with-

our affording petitioner an opportunity to submit

briefs or to argue the appeal on the merits,

apparently on the grounds that no appeal lies from

a judgment of conviction predicated upon a plea of

guilty since such an appeal, according to the

Government, would have been frivolous. The

order dismissing the appeal is dated August 18,

1971. (See Appendix.)

Questicas Presented

1. Whether every defendant convicted of a

crime in a federal court is entitled as a matter

of right o appeal his judgment of conviction to the

appropriate United States Court of Appeals and to

be heard thereon?

2. Was petitioner denied due process of law and

the equal protection of the law when the United

States Court of Appeals for the Second Circuit,

upon application of the Government, granted a

motion dismissing the appeal because the peti-

tioner had interposed a plea of guilty in the

District Court?

3. Does the interposition of a plea of guilty

following the denial of legal motions seeking to

dismiss an indictment render appellate review

unavailable to a defendant in a federal criminal

case?

4. May the United States Court of Appeals

preclude appellate review without reviewing the

record of the District Court merely because the

Government has taken the position that the appeal

would be frivolous since a plea of guilty was

entered following a series of unsuccessful legal

motions seeking to dismiss the indictment?

Constitutional and Statutory Provisions Invelved

The First, Fifth and Sixth Amendments of the

United States Constitution are involved herein.

Section 9 of Article I of the United States Consti-

tution is alsc involved.

Statement ef the Case

The petitioner herein was a career employee

of the Internal Revenue Service, having served

with distinction for close to twenty years, and

held the title of Appellate Conferee, Petitioner is

also an attorney at law as well as the father of a

family and has never previously been in conflict

with the law.

The indictment herein was one of a series ob-

tained in large measure through the efforts of an

“agent provocateur” and there was a serious issue

of entrapment. In addition, there had been a sub-

stantial issue as to denial of a speedy trial and

also questions involving electronic surveillance

and unlawful search and seizure which were

raised in pretrial motions by the petitioner in the

District Court.

The trial judge denied these motions, all of

which were addressed to legal and constitutional

questions. There were virtually no fact questions

presented which would have to be decided by a

jury.

Once these motions were denied a trial on

questions of fact would have been an exercise in

futility. °

Therefore, immediately following the denial of

these motions, the defendant (petitioner herein)

interposed a plea of guilty through his attorney to

certain counts of the indictment.

A timely notice of appeal was filed. The Dis-.

trict Court and the Circuit Court denied bail

pending appeal because the petitioner had pleaded

guilty and, consequently, the Government argued

that any appeal would be frivolous. The position

taken by the petitioner however was that the

motions were reviewable on an appeal despite the

plea of guilty since the plea of guilty was designed

primarily to avoid expense and time which would

be involved in going through a trial of fact ques-

tions when actually the issues which are involved

herein are questions of constitutional and statutory

law only.

The decision of the United States Court of

Appeals dismissing the appeal is as follows:

“Upon the motion made hereby by counsel

for the appellee by notice of motion dated

July 26, 1971 to dismiss the appeal and upon

the answering statements in opposition to

dismissal of the appeal, dated July 28, 1971,

it hereby is ordered that the appeal is dis-

missed. See, e.g., Richardson v. McMann,

397 U.S. 759 (1969); Bergin v. MacDougall,

432 F.2d 935 (2d Cir. 1970); United States

v. Doyle, 348 F.2d 715 (2d Cir.), cert.

denied, 382 U.S. 843 (1965),”

It is the position of the petitioner herein that

he has a right to perfect an appeal irrespective

of whether or not such an appeal would be frivo-

lous. (We contend the appeal is not frivolous).

The equal protection of the laws and due proc-

ess guarantee. each defendant in a federal

criminal case an absolute right to appeal to the —

United States Court of Appeals in the appropriate

circuit. If the Court of Appeals may dismiss

such appeals without argument on the merits and

without reviewing the record of the case, then

there is a clear denial of equal protection of the

laws.

Argument

1.

THE PETITIONER HAVING BEENCONVICTED

IN THE UNITED STATES DISTRICT COURT HAD

AN UNQUALIFIED RIGHT TO APPEAL TO THE

UNITED STATES COURT OF APPEALS. THE

COURT OF APPEALS, UPON APPLICATION OF

THE GOVERNMENT, PRECLUDED AN APPEAL

BECAUSE PETITIONER HAD PLEADED GUILTY

AFTER HAVING MADE CERTAIN’ LEGAL

MOTIONS OF CONSTITUTIONAL DIMENSION.

PETITIONER NEVER EXPRESSLY WAIVED HIS

RIGHT TO APPEAL.

The defendant-petitioner herein, HAROLD S.

KAHN, a career employee with the Internal Revenue

Service who held the title of Appellate Conferee

at the time of his indictment, was convicted upon

his plea of guilty, of conspiracy, with one Robert

Wiene and others, to defraud the United States

by failing to report income of a substantial amount;

and of giving a sum of money to an official of the

Internal Revenue Service.

An appeal as of right pursuant to Rules 3 and 4

of the Rules of Appellate Procedure was timely

filed.

There is no doubt but that motions were made

on behalf of the petitioner pursuant to Rules 41(e)

and 48(b) of the Federal Rules of Criminal Pro-

cedure. Pursuant to these motions the petitioner

sought to dismiss the indictment because it had

been inordinately delayed without just cause for

a substantial! period of time. In addition, suppres-

sion of evidence, including electronic surveillance,

was sought because certain material had been

ebtained in apparent violation of the Fourth,

Fifth and Sixth Amendments. The District Court

denied the motions. Since there were virtually

no issues of fact that were involved, the defendant-

petitioner pled guilty to Counts 1, 4 and 7 of the

indictment and was sentenced to a fine plus 15

months imprisonment.

There was no express or implied waiver of

rights articulated by the petitioner or his trial

counsel, This Court has stated that there is a

resumption against waiver of constitutional ri hts

(JOHNSON v. ZERBST, 304 U.S. 458, 464; TAYLOR

v. UNITED STATES, [D.C. Cir.) 238 F.2d 259).

The United States Attorney for the Southern

District however, took the position that a plea of

guilty in essence‘precluded appellate review since

there was a presumption of waiver of any motions

which were made prior to the plea of guilty. In

the case of UNITED STATES v. DOYLE, 348 F.2d

715 (2 Cir.), cert. denied 382 U.S. 843 (1965), the

United States Court of Appeals for the Second

Circuit indicated that motions made prior to a

plea of guilty could be raised on appeal if the

defendant pleading guilty specifically reserved his

rights to do so. It is ironic however, that in the

DOYLE case, the Court of Appeals apparently

permitted counsel for the defendant to submit

briefs and to argue the appeal. The judgment of

conviction in the DOYLE case was affirmed so it

would appear that the appeal was heard on the

merits, otherwise the decision would have to

have been that the appeal was “dismissed.”

In its brief decision dismissing the appeal

herein the Court of Appeals also cites RICHARD-

SON v. McMANN, 397 U.S. 759 (1969) and BERGIN

v. MacDOUGALL, 432 F.2d 935 (2 Cir. 1970),

which are both habeas corpus cases where the

appellants there sought to have federal courts

review by collateral attack matters which could

have been raised directly in the state courts.

Nothing in either the RICHARDSON or BERGIN

cases indicates that an appeal “as of right” may

be dismissed because a plea of guilty has been

interposed.

As a matter of fact, it is respectfully sub-

mitted that the presumption should be that a de-

fendant in a criminal case has not waived any

rights rather than that he has. Thisis particularly

so in a case such as the one at bar where the

plea of guilty was interposed almost immediately

following the denial of the motions to dismiss the

indictment and to suppress evidence. In the case

of both motions incidentally, the District Court

refused to hold any hearings,

The further fact that the defendant-petitioner

filed a timely notice of appeal would indicate

that he was attempting to review the motions

since there would be no other reason to file a

notice of appeal. This procedure strongly would

indicate that no waiver of any rights was intended.

If the petitioner herein were an indigent, it

would appear that the Circuit Court would not

have considered dismissing the appea! (see DOUG-

LAS v. CALIFORNIA, 372 U.S. 353; and ANDERS

v. CALIFORNIA, 386 U.S. 738 [1967]). The right

to appeal however is given to all people who are

convicted in a District Court and not just to

indigents or to wealthy persons. (Petitioner

herein, incidentally, has advised his counsel that

he is in a precarious financial position.)

The courts have held that where the right to

appeal is given at all, it must be allowed to

everyone and may not be arbitrarily denied. (See

COCHRAN v. KANSAS, 316 U.S. 255; DOWD v.

UNITED STATES, 340 U.S. 206; GRIFFIN v.

ILLINOIS, 351 U.S. 12; BURNS v. OHIO, 360 U.S.

252; GARDNER v. CALIFORNIA, 393 U.S. 367;

and WILLIAMS v. OKLAHOMA CITY, 395 U.S.

458.)

In DOUGLAS vy. CALIFORNIA, supra, this Court

held that where persons appeal as of right, they

must be accorded substantially equal treatment.

As a matter of fact, in DOUGLAS, this Court in-

dicated that the requirement of a preliminary

determination of merit of an appeal is improper

as a prerequisite for having an appeal.

The petitioner takes the position that since an

appeal as of right lies from a judgment of con-

viction in a District Court, a Circuit Court may

affirm the judgment with little or no delay but it

cannot preclude appellant from presenting a brief

and permitting his counsel to be heard on the

merits in oral argument, especially where such

rights are uniformly granted to all appellants.

(DOUGLAS v. CALIFORNIA, supra, 372 U.S. at

357, 358.)

In COPPEDGE v. UNITED STATES, 369 U.S,

438, this Court declared that where it isa practice

10

to defer rulings on motions to dismiss until the

court. has had the benefit of hearing argument and

considering briefs and an adequate record, it

would be improper to accord an appellant differ-

ent treatment for no apparent reason. In

COPPEDGE, this Court aptly stated (id. at 449):

“When society acts to deprive one of its

members of his life, liberty or property,

it takes its most awesome steps. Nogeneral

respect for, nor adherence to, the law as a

whole can well be expected without judicial

recognition of the paramount need for prompt,

eminently fair and sober criminal law proce-

dures. The methods we employ in the en-

forcement of our criminal law have aptly

been called the measures by which the

quality of our civilization may be judged.”

In NOWAKOWSKI v. MARONEY, 386 U.S. 542,

this Court also declared its general determination

that the right to appeal may not be selectively

rescinded.

A. The ruling of the Circuit Court in essence

means that a defendant convicted in the District

Court upon a plea of guilty automatically

forfeits his right to appeal.

The ruling of the Circuit Court necessarily

means that the merits of an appeal will not be

heard where it appears that the defendant in the

District Court pleaded guilty, It is obvious how-

ever that this Court has entertained cases involving

pleas of guilty, so the ruling of the court below is

clearly contrary to established procedure {see

McCARTHY v. UNITED STATES, 394 U.S. 459

11

[1969] and RICHARDSON v. McMANN, 397 U.S.

759).

The petitioner herein went through the trouble

of making motions in the District Court which in-

volved constitutional issues under the Fourth,

Fifth and Sixth Amendments as well as Rules 41(e)

and 48(b) of the Federal Rules of Criminal Proce-

dure. The Court below, however, precluded

appellate review on the grounds that a plea of

guilty was entered following the denial of those

motions. It is thus apparent that the merits of

petitioner’s contentions were not reviewed in the

Court of Appeals. He in essence was denied

appellate review because when he opposed the

dismissal of the appeal, he frankly admitted that

the appeal itself would necessarily have to consider

the timely motions which were made and denied

by the District Court. Those motions however,

involved matters of great substance and a dismissal

of an appeal deprived KAHN of the equal protec-

tions of the law.

This Court denied certiorari in UNITED STATES

v. DOYLE, supra (382 U.S. 843). It is elementary

however that the denial of a writ of certiorari

“imports no expression of opinion upon the merits

of the case as the bar has been told many times”

(UNITED STATES v. CARVER, 260 U.S, 482, 490;

BROWN v. ALLEN, 344 U.S. 443, 451-2, 491-2;

SUNAL v. LARGE, 332 U.S. 174, 181. See also

MARYLAND v. BALTIMORE RADIO SHOW, 338

U.S, 912, 917-20).

It is thus apparent that this Court has never

declared that a defendant who pleads guilty in a

District Court is precluded from appealing,

12

This Court should grant certiorari in this case

and, incidentally, should also admit the petitioner

to bail at once since the issue herein transcends

this particular case. The vice noted in DOUGLAS

v. CALIFORNIA, supra, that an appellant must

show the merits of his case before he can appeal,

is apt to become the uniform procedure unless

this Court straightens the question out, once and

and for all.

The issue is not whether the District Court was

wrong or right in denying the motions without a

hearing. The issue is whether or not pevitioner

had a right to have the determination of the District

Court reviewed. The procedure of going through

a trial would have enabled KAHN to enjoy full

review of the motions as well as the trial. Since

however, it would have been an exercise in futility

to go through the expense and time of a trial

when virtually no factual issues were involved, it

is submitted that the Court of Appeals should at

least have reviewed the legal questions which

were timely raised.

There should be no automatic waiver presumed

as the Court of Appeals has assumed, since such

a presumption contravenes this Court’s pronounce-

ments in such cases as JOHNSON v. ZERBST,

supra. In addition, the requirements in UNITED

STATES v. DOYLE, supra, expressed by the Cir-

cuit Court, that a defendant must expressly reserve

his right to appeal where he pleads guilty is con-

trary to due process and contrary to law.

If an appeal may be heard from a plea of

guilty by “reserving one’s rights” (DOYLE v.

UNITED STATES, supra), then it is totally unfair

13

and illogical to deny this right to review merely

because counsel did not articulate the reservation

of rights.

The petitioner herein, a lawyer as well as a

career employee of the Internal Revenue Service

for almost a generation, has been denied due pro-

cess of law and the equal protection of the laws.

His fundamental right to appeal was in effect

denied despite the fact that he complied with all

the procedural prerequisites.

In the landmark case of GRIFFIN v. ILLINOIS,

351 U.S. 12, the opinion of Justice Black speaking

for four of the Justices, aptly explained:

“* * * In criminal trials a State can no more

discriminate on account of poverty than on

account of religion, race, or color. Plainly

the ability to pay costs in advance bears no

rational relationship to a defendant’s guiltor

innocence and could not be used as an ex-

cuse to deprive a defendant of a fair trial.

*** It is true that a State is not required

by the federal constitution to provide appel-

late courts or a right to appellate review at

all. * * * But that is not to say that a State

. that does grant appellate review can do so

in a way that discriminates against some —

convicted defendants on account of their

poverty, * * *

“All of the States now provide some

method of appeal from criminal convictions,

recognizing the importance of appellate re-

view to a correct adjudication of guilty or

innocence. Statistics show that a substantial

14

proportion of criminal convictions are re-

versed by state appellate courts. Thus to

deny adequate review to the poor means

that many of them may lose their life,

liberty or preperty because of unjust con-

victions which appellate courts would set

aside.”

In view of the foregoing, we respectfully submit

that the petition for certiorari should be granted,

the petitioner should be admitted to bail, and the

order of the United States Court of Appeals dis-

missing the appeal should be reversed with in-

structions to permit an appeal on the merits,

including the motions which were made and denied

by the District Court just prior to the plea of

guilt.

Cerclusion

The petition for certiorari shoulda be granted

and the matter remanded to the Circuit Court

with instructions to hear the appeal on the merits,

including any motions which were made prior to

the plea of guilty. The petitioner should also be

admitted to bail pending the determination of this

case.

Respectfully submitted,

s/ Irving Anolik

Attomey for Petitioner

nt Sia ae ek ne ee _

45

Order Dismissing Appeai

UNITED STATES COURT OF APPEALS

Second Circuit

At a Stated Term of tue United States Court of

Appeals in and for the Second Circuit, held at the

United States Court House, in the City of New

York, on the 18th day of August, one thousand

nine hundred seventy-one,

United States of America, i

Plaintiff-Appellee,

v.

Harold Kahn,

Defendant-Appellant.

SS e@ eee tebheaeweceauna x

Upon the motion made herein by counsel for

the appellee by notice of motion dated July 26, 1971

to dismiss the appeal and upon the answering

statements in opposition to dismissal of the appea:,

dated July 28, 1971, it hereby is ordered that the

appeal is dismissed. See, e.g., Richardson vy,

McMann, 397 U.S. 759 (1969); Bergin v. MacDougall,

432 F.2d 935 (2d Cir. 1970); United States vy.

16

Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382

U.S. 843 (1965).

s/ Wilfred Feinberg

Wilfred Feinberg

s/ William H. Mulligan

William H. Mulligan

s/ William H. Timbers

William H. Timbers

Circuit Judges