Opposition Brief — Bessesen v. United States

On the Supreme Court of the Wnited States

OcToBER TERM, 1971

6

No. 71-390

Henry BEssEsEN AnD BunI BESSESEN, PETITIONERS

v.

UniTep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

has not yet been reported.

JURISDICTION

The judgment of the court of appeals was entered .

on July 6, 1971. A petition for rehearing was denied

on August 19, 1971. The petition for a writ of cer-

tiorari was filed on September 17, 1971. The jurisdic-_

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

447-078—71

2

QUESTIONS PRESENTED

1. Whether petitioners may raise, for the first time

in this Court, the claim that their right to a speedy

trial was violated by the delay between the commission

of the offenses and the date of the indictment.

2. Whether petitioners’ rights of confrontation were

violated by the admission of allegedly hearsay testi-

mony not objected to at trial.

3. Whether the instructions failed to set forth the

theory of the defense.

STATEMENT

After a jury trial in the United States District

Court fcr the Northern District of Illinois, Henry

Bessesen was convicted on each count of a five count

indictment charging mail fraud in violation of 18

U.S.C. 1341 and was sentenced to two consecutive five

year sentences. His wife, Buni Bessesen, was found

guilty on two counts and was sentenced to one year

on one count and placed on five years probation on

the other.

The mechanics of petitioners’ financial transactions

are set forth in detail in the opinion below, the ac-

curavy of which petitioners admits. In brief, the evi-

dence showed that Henry Bessesen managed the

Tueson Inn which was owned by Mrs. Leah Rosa

Simpson. The fraud consisted of a “check-kiting”

scheme in which petitioners deposited over $350,000

in bad checks in various banks located in Tucson,

Arizona, and Chicago, Illinois.

Henry Bessesen testified that Mrs. Simpson had

purchased the Tucson Inn in 1962 by executing two

3

$250,000 promissorv notes and assuming a $600,000

mortgage and that he was a co-signer of the notes.

(Tr. 566, 664). He acknowledged that he knew the

funds were insufficient when he wrote the checks. The

thrust of his defense was that he reasonably expected

Mrs= Simpson to “‘cover’’ the checks. (Tr. 571, 653,

655.) He described Mrs. Simpson ag a‘ very active

and energetic woman with good eyesight who was

capable of taking care of herself in business transac-

tions (Tr. 552, 658, 661, 714).

In rebuttal the government called Mr. Haberman,

Mrs. Simpson’s attorney, who testified that Mrs.

Simpson was a frail, elderly blind woman who suf-

- fered from memory lapses. He stated that,’ prior to

the signing of the notes, Mrs. Simpson had consulted

with him a number of times, usually with Mr. Besse-

sen present, and that he advised her not to sign any

notes (Tr. 771, 784). The following colloquy then

occurred (Tr. 787-789) :

(Prosecuting Attorney) Q. Who elsé‘was pres-

ent at that time ?

(Mr. Haberman) A. Mr. D*Antonio, Mr.

Raymond F. Hayes, another’ member. of our

firm, and Mr: Adrian [petitioner] * * *

Q. Would you please relate the substatice of

that conversation. -

A. We stated to Mr. Adrian that we had

heard rumors among real estate circles in town

that * * * Mr. Adrian was operating the Tucson

Inn and had somehow purchased the stock, and

we wanted to know whether or not he had done

* Mr. Bessesen had formerly been an actor and often used his

stage: name, Adrian.

4

so by getting Mrs. Simpson to co-sign the notes,

because we had talked to Mrs. Simpson when

we heard these rumors and asked her if she had

done it and she said no, and he said yes, that

she had co-signed the notes.

Q. In regard to those promissory notes, was

that the last you heard of those notes, sir ?

A. No, it was not, unfortunately.

Q. When was the next time that those prom-

issory notes were brought to your attention ?

A. In August—well, one of them in August

of 1965 when she was sued for $287,500 plus

interest * * *, K

Q. What was your primary defense to that

lawsuit ? ‘

A. The primary defense was that if she had

indeed signed the note at all, her Signature on

the note was secured by trick, by artifice, by

fraud, by misrepresenting the character of the

instrument that she signed as a promissory

note—not as a promissory note but as some-

thing else.

(Defense Counsel) Mr. Ottver. I object. He

is getting into the defense in another lawsuit.

The Court. Do you have any comment?

(Prosecuting Attorney) Mr. Krascr. Well,

your Honor, I think the defendant has made

th-se promissory notes the key to his case, and

anything that sheds light on those promissory

notes is going to be of assistance to this jury.

The Court. He may answer * * *,

ARGUMENT

1. Petitioners contend that they were prejudiced by

the approximately five year delay between the com-

mission of the offenses in 1963 and the return of the

indictment in 1968, The ‘{uestion whether an indict-

ment may be dismissed because of pre-indictment

delay is before this Court in 17 nited States v. Marion,

No. 70-19, this Term. However, the resolution of this

case need not await that decision since petitioners

did not file a motion to d.smiss the indictment and, in

addition, did not raise this issue below. Thus there

is no record upon which this Court can determine wheth-

er the delay was reasonable and justified and whether

it was prejudicial to the petitioners. For this reason

they should not be permitted to raise the issue for the

first time in this Court. Lawn v. United States, 355

U.S. 339, 362 n. 16; Adickes v. S. H. Kress & Co.,

398 U.S. 144, 147 n. 2. Moreover, since no witnesses

were lost and the evidence was preserved in the form

of bank records, it appears unlikely that petitioners

were prejudiced by the delay.

2. Petitioners at trial never objected at all to testi-

mony by Mrs. Simpson’s lawyer concerning his state-

ment to petitioner that Mrs. Simpson denied signing

the notes, and objected to his statement of the theory

upon which Mrs. Simpson was defending the lawsuit

merely on grounds of irrelevance, not hearsay. The

relevancy objection was properly overruled as the

testimony was clearly relevant to rebut petitioners’

defense. The trial judge was not accorded an oppor-

tunity to rule on any hearsay claim. In light of this,

petitioners may not now raise such a claim. United

States v. Indiviglio, 352 F. 24 276, 279-280 (C.A. 2);

United States v. Turner, 423 F. 24 481, 484 (C.A. 7),

eertiorari denied, 398 U.S. 967.

6

Moreover, the statement concerning Mrs. Simpson’s

defense was not hearsay. As Mrs. Simpson’s attorney,

Mr. Haberman, was testifying on the basis of personal

firsthand knowledge of the defense he, himself, had pre-

sented on her behalf. This testimony was adiissible

in rebuttal because it was inconsistent with peti-

tioners’ defense of good faith expectation of payment.

United States y. Wilson, 439 F. 2d 1¢831, 1082

(C.A, 5).

The other reference to Mrs. Simpson—her at-

_ torney’s testimony that he told petitioner that Mrs.

Simpson had denied signing the notes—occurred not

as the attorney’s reciting an extra-judicial declaration

of Mrs. Simpson, but in the course of his recounting

a conversation with the petitioner, and was merely

a part of the context of petitioner’s admission to

Mrs. Simpson’s lawyer that Mrs. Simpson had in fact

signed the notes against her attorney’s advice. More-

over, as noted, this passing reference was not objected

to at all by defense counsel.

3. Petitioners argue that the court’s failure to

charge the jury in the language tendered by defense

counsel denied him due process of law. Petitioners

tendered a lengthy, confusing set of instructions (Tr.

867-870). which included a detailed description of the

purported evidence and inferences petitioners drew

therefrom. Since much of. this charge involved facts

in dispute the trial judge properly rejected the charge

as argiuuentative (Tr. Supp. 18). As the courts below

held, the trial court’s charge adequately covered the

points of law and the substance of the requested in-

a

7

structions (Pet. App. 12a). The specific instruction

cu.cerning intent to defraud (Tr. 911-914) explained

all the requisite elements of the offense. See United

States v. Brormeyer, 192 F. 2d 230, 282-233 (CA. 2).

The court’s charge regarding reasonable expectations

of payment (Tr. 919) was also more than adequate.

See Deschenes v. United States, 224 F. 2d 688, 692

(C.A. 10). Mrs. Bessesen’s defense, that she was un-

der the control and direction of her hushand, was

fully explained (Tr. 922).

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswoxp,

Solicitor General.

WiLL Witson,

Assistant Attorney General.

BEATRICE ROSENBERG,

Attorney.

OcTOBER 1971.

U.S. GOVERNMENT PRINTING OFFICE: 1971