# Petition for Writ of Certiorari — Williams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0383%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 954 ## Text ATI PASE gah ee ee SC steep 1 SUPREME COURT, U. Se. a a | Sore Ctl Hat Sa a raaaass Term, 1971 JAMES W. WILLIAMS, Petitioner. SSD SAIS OF OCS Rape ‘| PETTTION FOR. WRIT of CERTIORARI TO SA THE UNITED STATES COURT OF. APPEALS ~~ "FOR THE FIFTH CIRCUIT A Be ice eh 3 es eas ee a eee 1401 First National Life Building ‘ Houston, Texas 77002 . \ . : Attorney for Petitioner, an James W. Williams ~ Aiphe Law Bria} Co, One Me Flas, Ho T Mae Sty Howton, Toes 7002 : BS 8 -. Mae . i tS ; P 5s Ee ge e ~I Sy ee we ee Bee 7 x ae 3 CASES — eee Page California v. Green, 399 U.S. 149, 90 S.Ct. 1930 10, 11- Callaghan v. Reconstruction Fi inance Corporation, . 297 U.S. 464, 56 S.Ct. 519, 521°. 2.2... one | ane _ Chapman v. California, 386 US. 18, $7 $C... * er 0 ASR Se) Scag ie pga eee -. 16 . Cooper v. United States (Sth Cir.), 91 F.2d 195 il _ Cooper v. United States (8th. Cir.), 9 F.2d 216,. - = : a te 11 ‘Douglas v. Aidan. 380 USS. 415, 85 S.Ct. 1074 ‘oe 12 _ Estes v. Texas, 381 U.S. 352, 85 ‘S.Ct. 1628. ae: _ . ' ri ; . . ! bé s . . : ° ) ‘ ; Sims Now NB gat MSS Diy RNS AID al i A ict . Williams was denied confrontation and cross-examina- tion of the custodians of the books and records which: the expert witness Jeffrey examined extra judicially and on which he based his opinion. These records were neither produced in court nor identified" in court, nor ; authenticated under .the Business Records Statute 28 U.S.C. 1732(a). The minority opinion below held this 7 _ to be error in the light of California v.. Green, 399 USS. 149, 90 S.Ct. 1930, and other opinions by the Supreme - Court. (Appendage B, see also Appendage A). The majority opinion below interpreted California v. Green to -create an exception as to expert testimony and.to allow. an expert opinion to be based.on hearsay. (Appendage C). Consequently, this Supreme Court should decree the bear- ing of California: v. Green on opinion evidence based on hearsay.. -¢ ine "In Hopt v. Utah, 110 US. 574, 4 S.Ct. 202, this Court ee . held that the foundation for a physician’s expert opinion — could not be established by hearsay. The majority decision . below by the Court of Appeals departs. from and conflicts _. with Hopt. It conflicts also with the confrontation con- cepts\ decreed i in Barber v. Pagé, 390 U.S. 719, 88 S.Ct. ~ 1318; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct..1074, and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926. There was- no proof that entries in the ‘books and records examined by Jeffrey were made in the regular .. course of business nor that it was the regular course of ‘ business to make such entries. Consequently, the books and records wefe not authenticated as required by the Business Records Statute, 28 U.S.C. 1732(a). The result is that the majority opinion below conflicts with Palmer hy Hoffman, 318 U.S. 109, 63 S.Ct. 477, which interpreted ? = tie. statute (then 28 U. S. Cc. 695).. The necessary intent of the statute and the inherent holding in. Palmer v. Hoff-. « man is that the custodians of the books and records must be subjected to. confrontation and cross-examination on . thése regular course of business issues. : Prior to the decision below, the ‘Fifth Circuit itself had — consistently held that expert opinions could not be based:: on hearsay and that when an opinion was based on books and. records prepared by others the books and records must — be produced, identified, and authenticated i in court by the custodians of the: records. Paschal v. United States (Sth . Cir.), 306. F.2d 398; Greenhill v:; United States (Sth me ah 298 F.2d_ 405; Cooper | v. United States (Sth/Cir.), 91 F.2d 195;. Kolbrenner v. -United’ States (5th' Cir.); 11 F.2d 754. Its‘ final ruling en banc. conflicts: ‘with’ its oh own many precedents. - The majority: opinion below conflicts with marty hold-. | _ ings of other. Courts of. Appeal that books and records - -. on which opinion evidence is based. must, be produced, - identified and authenticated in court: Cooper v. United States (8th Cir.),-9 F.2d 216,.213; United States v, ' Michener (3rd Cir.), 152 F.2d 880; Greenberg v. Unitéd _ States (1st Cir.), 280 F.2d 477; Greenberg v. United- ’ States (1st Cir.), 295 F.2d 903; also United States v, Campanaro. (D. C, Pa.), 63 F.Supp: 811. It i is important ‘ that this ‘Court reconcile this conflict of aperee between the -Circuits. ss “The custodians of the records on which the expert wit- | ness Jeffrey relied were not subjected to the demeanor tests decreed in Barber v. Page, 390 U.S. 719,:88 S.Ct. 1318 and California v. Green, 399 U.§. 149, 90 S.Gt. 1930. . a icitae the on = bélow decrees an: ) / 12 exception .to the demeanor doctrine as: to expert festi- - * mony that has ‘not yet been authorized by this .Supreme Court, and which ‘exception conflicts with ‘Douglas y. Alabama, 380 °U.S.. 415, 85 S.Ct. 1074, which pro- ’ hibited use of documents not tested by confrontation by the © maker of the documents. The* existence or no of such an ~ exception is a major, Constitutional issue needing the - consideration and. decision of this’ Supreme Court, for. ‘it affects: the fundamental. rights of. Wwalame and others simi- ise arly situated. ‘Denial to Williams of the right to be confronted. by | ie and to ¢ross-examine’ the custodians of the records, to ° have the. records identified and authenticated under the. Business Records. Statute, 28 U.S.C: 1732 (a), and to' | - have the records availAble for cross-examination of the expert witness: Jeffrey is “Constitutional error of- the first - magnitude”. Smith v. Illinois,: 390. U.S. 129, 88 S.Ct. 748; Brookhart v. Janis, 384 US. 1, 86 S.Ct. 1245; Pointer v:. Texas, 380 U.S; 400, 85 S.Ct» 1065. Error of. such ‘magnitude should not be allowed to stand. It affects not | | _ only. Williams, ° but also those new, and in the future .to . be, similarly situated. ° : | ra a) a’ : ; II, oe SUCCESSIVE PROSECUTIONS AND Meee JUDICATA’ The charges against Williams in the gecond prosecution "could .have ‘been included as an additional count of the -indictmeni on which he’ was first tried. He thei would -have -been burdened with only: one deftnse. The District — Court ‘would have been burdened” with ‘only one: \trial. - Both, Williams and the Government. would have had less _ expense’ and. sail labor. " Successive prosecutions based on the same acts not only © ~ harass and overburden the’ Défepdant; they additionally unnecessarily® clog. court calendars, ‘senselessly deplete — revenues ailocated to administration of. criminal justice, and make for inefficient and disorderly law enforcement. See Petite v. United States,.361 U.S. 529, 80 S.Ct. 450, and Marakar: v. United States, 370 U.S, 723; 82 S.Ct. 1573, which are. further treated, infra, p. 14 Injystice to’ a Défendant. ‘of harassment. by* successive ’ prosecutions was elaborately treated by Mr. Justice Brennan _in his-separate opinion in Abbate v. United States,'359 US. 187, 196-201,.79 S.Ct. 666, 671-674. Its potential-viola- tion /of due process. was ‘commented on by Mr. Justice e: Frankfurter i in. Bartkus v. Illinois, 359. U.S. 121; 127, 79 S.Ct. 676, 680: “. . . at some.point the cruelty. of harass- ment by multiple prosecutions by a state would offend - . due: process.” The majority of this Court has heretofore decreed that “thé State with all its resources -and power should not be allowed to make repeated attempts to. con+ — Vict an individual—compelling him to live in a contin- Hing state of anxiety and. insecurity... .” Green v..United - ~ States, 355 U.S. ‘184, 78 S.Ct. 221. ae aa Mr. Chief Justice Burger’s opinion ‘in ‘Price’ v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, expressly decrees that “The . ‘twice puti in, jeopardy’ ‘language of. the Constitution. thus relates to a potential, i.t:, the risk that | an accused for a "second time will be ‘convicted of the ‘same offense’ for * “which he was initially, tried.” See also. Ball v. United States, . 163 U.S. 662, 669, 16 5.Ct. 1192,-1794, — q This Court has consistently dismissed, on mol ion of the Government, ‘second convictions on the same t nsactit ment: ‘tha! on the. “general policy of the Federal Governm . Sai ae ~ several offenses arising out of a single transaction should be alleged and tried together arid should not be made the basis of-multiple prosecutions, a policy dictated by con- sideration both of fairness to defendants and of efficient and orderly law enforcement’.” Petite v. United States, . 361 U.S. 52, 80 S.Ct. 450; Marakar v. United States, 370 U.S. 723, 82°S.Ct. 1573. Similar dismissals have been - _ entered by Circuit and District Courts. Orlando v. United States (9th Cir.) 387 F.2d 348; United States v. American Honda Motor Company (D.C.N:D. Calif.) 271 F.Supp. 979, 988; United States v. American Honda Motor. Com-. pany (D.C.N.D. Ill.) 273 F.Supp. 810. The time is ripe for this Court to decree as law this “general policy” of © the Federal Government. The -rights of Defendants and .the need of the public for efficient and orderly law en- forcemerit should be the rule of this Supreme Court and not left-to the discretion of the Department of Justice. The Government's - failure and refusal’ to apply this “general policy” to Williams is*“invidious discrimination” against him. and denies him equa] justice under law, the - equal protection of law. In Griffin v. Illinois, 351-U.S. 12, 76 S.Ct. 585, this Court clearly stated the Constitu- tional goal of uniform justice: “Both equal protection and due process emphasize the central aim of our entire ju- dicial system—all people charged with crifne must, so far as the law is concerned, ‘stand 6n an equality before the bar. of justice.in every American court’.” Constitutionally, * the Department of Justice should not be allowed to dis- criminate as to the application or no of “a policy dictated © by consideration both of fairness to defendants and of efficent and orderly law enforcement.” Petité v. United _ States,- supra. ° -- ! _ As both prosecutions -against Williams arise froma the same acts, contain overlapping charges and must be sus- . " tained by overlapping evidence, the defense of res judicata included in the Fifth Amendment guaranty against double | jeopardy, bars the second prosecution. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. ‘237. See ‘also Ex Parte Snow, 120 U.S. 274, 7 S.Ct. 556; Ex Parte Nielsen, 131° US. 176, 9 S.Ct. 672; United States v. Oppenheimer, 242 . ‘U.S. 85, 37 S.Ct. 68: and United Seates 1 v. Adams, 281 US. 202, 50 S.Ct. 269. THE PUBLIC COURT OF INQUIRY | The Trustee's and S.E.C.’s public examination of the Government witnesses’ in a Federal courtroom, with Williams bearing’ the status of an accused, but his being - denied the right to be represented by counsel and to cross- _ €xamine, rebut and defend, raises setious Constitutional issues. - McClelland v: Texas, 382 U.S. 928, 86 S.Ct. 307 (“It is clear that-grave Constitutional questions ‘are. raised _ by conducting stich-a proceeding.” Thére is-the question. of whether this . ““Court of In- quiry” in a very real sense was Williams’ trial, whether any ; '- subsequent trial could be but a hollow. formality. Rideau v. Louisiana, 373 U.S. -723,-83 S.Ct. 1417. See also - Estes.v. Texas, 384 U.S. 352, 85 S.Ct. 1628 and Sheppard ". v. Maxwell, 384 U.S. 333, 86 S.Ct., 1'507.+ Included “is the question-of whether the Trustee’s calling Williams to testify, publicly forcing him to refuse to testify, and pub- licly commenting on his‘ refusal is a flagtant violation of the holding that the Government cannat comment on the’ failure or refusal of a Defendant to testify. Chapman pape mr wn Pee Ror: tte a gerw 16 ; Ve . California, 386 US. 18, 87 S.Ct. 824; Griffin v. Cali- fornia; 380 U.S.: 609, 85 S.Ct. 1229. The Trustee in Reorganization was a public officer; an officer of the Court. ‘Callaghan v. Reconstruction Finance Corporation, 297 - US. 464,56. S.Ct. 519, 521. Related is the question. of whether the public “Court of Inquiry” in a° Federal courtroom, in which Williams was _ denied the right to defend was a use of the inquisitorial system of justice forbidden by the Fifth Amendment, which — requires the accusatorial process. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493; Rogers v. Richmond, ‘356 U.S. 534, 541, 81 S.Ct. 735, 739. es - Presented also is the question of whether ubder the cir- - . cumstances the “Court of Inquiry” was a ceeding. in which Williams was guaranteed d entitled to procedural due process under the. holdings | in Jenkins vy. McKeithen, 395 U.S: -411, 89 S.Ct. 1843} White v. Maryland, 373 US. 59, 83. S.Ct. 1050, and Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157. Bearing on this question is whether the holding of Greene v. McElroy, 360 _ U.S. 474, 79 S.Ct. 1400, or Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, controls on the proceeding conducted. See also ‘Anonymous Nos. 6 & 7 vy. Baker, 360 U.S. 287, _ 79 S.Ct. 1157 and An Re Groban, 352 USS. 330, 77 S.Ct. 510. Of great magnitude is whether public examination of _ the Government witnesses without granting the right to defend infringes on the guaranty of indictment by a Giand*Juty. See McClelland v. Texas, 382 U.S. 928, 86 S.Ct. 307. Basic Anglo-American tradition is that the Government witnesses be examined in‘private. See Shaftes- bury’s Case, State Trials, 33 Charles [1 (1681) wherein o- e-trial pro- a a Grand Jury refused to indict the Earl of Shaftesbury - because King’s counsel insisted on its hearing the evidence. in public.’ (“. . . it is-desired by the King’s counsel that - _ the evidence may be ‘publicly given . . . it.is the opinion” of the jury that they ought to examiné the witnesses in private, and it has been the constant practice. of our an- cestors and predecessors to do it.”). u - £ This latter question was “squarely presented to ‘the Su- — _preme Court of North Carolina in State v. Branch, 68 N.C. 186 (2nd Ed. 68 N.C; 133). It quashed the ifdict- ment clearly stating the rationale as follows?” : s “ .. . the pretection of a grand jury amounts to nothing if the citizen is to’ be first exposed to scandal and disgrace by a public examination of the witnesses on she part of the State. . . if upon the public examina- tion of the witnesses for the State, he has no right to cross-examine and no right to offer witnesses to contra- _ dict the witnesses of the State, or to prove their bad char- . acter, and to be defended by counsel, it would be better for him to have a trial at once, upon information, where he has the right ‘to confrent the accusers and witnesses with Other testimony and to have counsel for his de- fenses, instead of being, in the first place, put in the ° condition. of a victim tied to “a. stake”, while his — - reputation is being tortured to death. If the witnesses for the State are to be examined in “public”, upon. the inquiry of the grand jury, in all fairness the . accused should be allowed to cross-examine and to offer witnesses to contradict or explain, and to have the benefit of counsel. ’ 1 “Why examine the witness for the State in public - without the tight of cross-examination and of con- ‘fronting the witnesses, unless it be to expose the’ ac- _cused to: scandal and disgrace, else to browbeat the : ee ee . . ta wiles Oh ait Pets A aiPANS EE BROT 2a OE wed origin ed Reks peted dlenapeonfstd rus ik ax * ‘grand jury “i influence : ‘the finding’ not in respect to the case but in respect - “to the fact?” (Emphasis added) _ The record shows that the sid “Court of Inquiry” encompassed the grand jury proceedings as to Williams. Consequently, this petition squarely presents the question . of whether the “Court ‘of Inquiry” violated. the - high Federal. standards fof secrecy in grand jury proceedings. _ This Court should take’ and determine the issue, for it has consistently placed great sanctity on protection of citizens _by the guaranty of indictment by grand jury. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038; Stirone v. United States, 361. U.S. 212, 80 S. Ct. 270; Ex Parte Bain, 121 US. 1,7 S.Ct. 781. These “grave Constitutional questions” ( McClelland \ Vv. Texas, supra) involve flagrant breaches of due process. : It is therefore respectfully suggested that this Court should ' take this petition “for the preservation of the purity of ‘ its own, temple” to. sustain “the -imperative of judicial . integrity”, to avoid “making the Courts themselyes accom- plices in wilful disobedience | of law”, for. “The Court protects itself.” Olmstead v. United States, 277 US. 438, | 48 S.Ct: 565 (Dissents of Messrs. -Justices Holmes and Brandeis) ;. Sorrells v. United States, 287 U.S. 435, 53 S.Ct.-210 (Mr. Justice Roberts); McNabb v. United. ‘States, 318 U.S. 332, 63 S.Ct. 608; (Mr. Justice Frank- furter); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.-1684 (Mr. . Justice Clark). " CONCLUSION AND PRAYER On ‘the. facts and authorities submitted, it is urged that this, Petition for Certiorari presents substantial Consti- 19 a tutional questions for consideration by this Honorable Supreme Court of the United ‘States and that these ‘ques- tions .should be resolved to the relief of the Petitioner. and others similarly situated. WHEREFORE, -Petitioner ‘prays that this Petition for Certiorari be granted to correct the errors of the Honor-. - able Court of Appeals for the- Fifth Circuit and of the Honorable Unifed States ceatelet Court for the Southern District of Texas. a ip Pe Respectfully submitted, - - "J. Epwes Smira > “Attorney for Petitioner, 1401 First National Life Building Houston, Texas oS APPENDAGE AU ite States Gor Court at Appeals FOR. THE FIFTH re - No. 26829 and 26830. ‘UNITED STATES OF "AMERICA, Plaintiff-Appellee, versus se AMES W. WILLIAMS, Defendant-Appellant. Appeals from the United States District Court for the Southern District of Texas (March 26; 1970) a @4 Before RIVES, GOLDBERG and GODBOLD, ircuit Judges. RIVES, Circuit Judgé: James W. Williams eit from two judgments of conviction in closely related criminal cases. Williams was formerly Chairman of the Board of Westec,’ and both criminal . financial collapse of estec which resulted in suspension of its stocKkfrom tradiAg on the American Stock Exchange. . . on August 26, 1966,‘and one month later.in an order ap- pointing a trustee of Westec in reorganization — _ _ in the Southern District of Texas. \ ‘... 1. Western Equities, ie until. “a 1966, then retiamed | Westec Corporation—for convenience called Westec in. this. opinion. s . ; & \ - | é ; | 2 : ae MS yosecutions were precipitated by the. = a 22° Case No. 107? was commericed i by Grand Jury indict- : ment and was tried to-a jury for nearly a month, from June: 17 to July. 11, 1968, resulting i in a’ verdict and judg-: ment of guilty on thirteen counts, and in ‘sentence bo bee served of ten years’ imprisonment. lh: ’ Case No. 233° was commenced by criminal isiformia-- tion filed by the United States Attorney on September 12, ° 1968 (two months .after the jury’s verdict in Case No. 107). The information contained only one count, and _ was tried to the court without a jury on a stipulation of - + facts,* resulting in-a judgment of conviction. and ‘a sen-- tence to be served of an additional’ five years’ eaprioon- ment, or a total of 0.4 years. : : In Case No. 107, “Count One charged Williams. with. _ * conspiracy with three co-defendants to violate 15 USC. . _ 77e(a), 78ff(a) and 18 U.S.C. 1001 and 1341; the other _____ twelve counts of which the Jury found Williams guilty :_ charged substantive violations of the mail fraud ‘stat- d ut@ 18 U.S.C. 1341. In Case No. 233, the one couiit ‘ . ‘criminal information alleged a conspiracy in violation’ - °° «of 18. U, S.C. 371 by Williams and others to manipulate | ae unlawfully the price of the common stock of ‘Westec ir violation of 15 U.S.C. 78i(a) (1) (2). \ . By various challenges, claimed defenses, and iin - . tO the indictment and to the information,- objections to the evidence, and a _Tequested instruction. to the jury, “ P , SOTA tg Me aie 2. Case numbered 26; 829 in this Court, 68-H- 107 in ie Aistrict court, for convenience referred to in this opinion as Case No. 18Y. 3. Case numbered 26,830 in this Court, 68-H-233 in the district court, for convenience referred to in this opinion as Case No. 233. " 4. We are informed that this procedure was adopted to preserve : oe issues of law+—See. Martin v. United States;: 5 Cir. 1968, 389 F.2d \ 895. ; pitta —— 2 - \ ‘ z : ° ‘ \ ’ -* - ? . ' : - ; é . 2. ? : . ~ \ ° : ; . .* s . ae : \ MA Kgl a oN oa g . : ° > : | - oe z 4 ~ / Williams preserved seven. issues for’ review on a ‘which .we will consider in the. order in which. they are briefed by the parties. 3 "5 or ; a ‘or | Denial of ‘Confrontation: by’ Noy Pridection SHE 34, ee Got - "Of Records, 20 | a v - Out of its logical, or chronological order ~Williams wears ot . ___ presents as his -first issue on appeal: that he was denied. - his Sixth Amendment guaranty of confrontation: when, over his objection, an, expert witness was allowed to = give opinion evidence: baséd on extra-judicial | investiga- tion of records not themselves introduced in evidence. In Case’ No. 107, each: of the’ thirteen counts'of the | .* indictment on. which Williams ‘was_ convicted contained _ averments as. to which evidence was retyvant to ‘prove the value of the net future earnings as of January 1, 1967. of certain’ ‘producing: oil and gas properties. . - In effect, the indictment charged that “Westec ‘had sold oil and gas, properties to corporations controlled. by co-conspirators at prices gréater ‘than their ‘fair market — ‘value. To support those allegations, the witness Thonras Jeffrey testified. as an expert on the valuation ate I properties to. the following opinions: | ee ve. “A. My estimate ‘of the future net earnings of “— Properties as of 1-1 67 was $500, 032. | Rae “A. My estimate as -of Yensiang: ‘Ast, 1967, of the > future net earnings from Wilcrof, Incorporated, oil and gas ee was $44, 469.” | fn | No question was raised as -to Jeffrey’ ~ qualifications ae as an L but Williams repeatedly and: Bravccrcus Pe ‘aie 24 objected because the. records ‘of the two corporations =~ “upon which the witness’ based his opinion pascal re themselves offered in evidence. As aptly expressed by ' ‘defense counsel: “*°* * a prdper. predicate has not been laid’ for, such an opinion. They have not produced the © records cdncerning the earnings and the production upon” which he is basing his opinion, nor the. other supporting — data and records that he said he had used in reaching» his opinion. ‘That is not in evidence to this date.”” The «” oi able and careful ‘district nea overruled’ the objection . : — the. following reasoning:” : “Well, with respect, first,.to Jeffrey, that rightly or wrongly does not trouble me because Jeffrey is an expert witness, and while it might Have been done _ ° Ae _ differently, in my view all Mr. Jeffrgy had*to say was that I have’ studied the question and ] have an opinion and that is my opinion. The rest of it js ice! - “Aagin a te clése ‘of the witness Jeffrey’s: testimony: } , i One other question, and your opiniop-is based upon these — things that other people told. you and #¢éords that, othér people showed you and information other people gave ‘a about which ‘IT have been interrogating you? af “A. Yes. - “Mr. Smith: If the Court a at this we more io st .this opinion and his evidence as to the evaluations on the bases that the Government did not lay a proper predicate. His opin- ions are unquestionably based upon hearsay and that to- permit the evidence. to go before this jury’is a denial to Jim’ Williams of the right of confrontation guaranteed under the Constitution © to see in open court the people who furnish these records and os told them these facts. i» “And it has been proven here ‘that one of those men in each _-* jnstance was Mr. Fred Hall, and that to permit this not be stricken from the ‘record is to deny him constitutional: right of - _. confrontation’ and cross examination’ of the witnesses. knowing | Sa the facts, to test them as to whether or not it is b the truth. Bh en Court; Overruled.” ° 6.. Stated in a discussio# with the attorneys in chambers. = & 25 *¢ - s * v ‘ . ye , {a s probing to nas or S texting the validity of his opin- ion, ‘and whatever is said or an in ‘his investigation investigation as peated to his opinion on value.” The two. oeieals. made by the witness Jeffrey were’ marked as Government Exhibits X-4 and X:5. The issue _- may be more sharply defined by the proceedings when ~ the Government offered those ‘exhibits in evidence, which -proceedings are. quoted in the margin — eu Wake Dimmitt: At this. dine, Your Honor, the. government will offer. into. evidence ment Exhibits X-4 and X-5.- “Mr. Smi our Honor, I want to register. an objection to Gov- ern $: “A. T used my own’ st tellgeent from the records . ‘available as to correctness of the records.” There was no proof that the records on which the wit- . ness relied were made and kept in such fashion. as to _ meet the requirements of the” Federal Business ‘Records - yf Act, 28 U.S.C. §1732. We cannot escape the conclusion _ ; that Williams. was denied his constitutional right to con- front and cross-examine the witnesses who’ prepared and _ were the custodians of the records on which Jeffrey relied. © s 29° - AS pre Supreme Court said in Pointer v. ‘Texas, 1965, +380 U.S. 400, 405: : “There are fow subjects, “enilf, upon which “this Court and other courts have been more «nearly ‘unanimous than in their expressions of belief thay the © “right -of confrentation and cross-examination: is an essential and fundamental requirement for the, kind of fair trial which As this country’s constitutional goal. ite se . , Y * Other - ‘ane Supreme Court. ante have empha-- -° sized the essential and fundamental importance to a fair trial of thé right of confrontation and ¢ross-examinatign.”” The fact that Jeffrey had the, records from’ which ‘ the appraisals were. made did not impose any duty on ° Williams to require that the records be brought in. Williams had theretofore repeatedly objected to’ the wit- néss” " testimony as to value. until the records om which that testimony admittedly was based had been introduced . . in evidence. Jeffrey could not testify. to the “correctness” af the records any more than he did, that is, that he used’ his own best. ,judgment as to their correctness. Fhe burden _ rested on the Government to prove the authenticity of _the records and tha burden could not’ be. shifted to the defendant: In this case the defendant repeatedly and con- sistently insjsted on his right to confront and cross-ex- amine the witnesses who might testify as to the _corrget- ness ‘of the pertinent records. There was never any indi- cation of waiver of. that right. That circumstance distin- ‘guishes the present.case from Bruce v. United States, 5 Cir. 1965, 351 F.2d 318. 7. 10. Doug ¥ Alabama, 1965, 380 U s. 415; Brookhart v. Janis, 1966, 384 U.S ; Barber v. Page, 1968,.390 U.S> 719. « * YE DOC 0 e Wilkams was deprived of hiss ¢ constitutional right to. confront and cross-examine the witnesses who might be offered by the Government to authenticate the- records of the two companies on which the witness Jeffrey relied . _”. in miaking his value appraisals. For that error the judg-- ment of convietion in Case No. 107 must be reversed. | iH. Misuse and Abuse of the tiie Powers Granted the Trustee in Sections: ~ 21(a) and-167 of the Bankruptcy Act, | }1. U.S.C. §§ 44 and 567. , Williams terms- the bankruptcy examination a public “‘' of Inquiry,” which encompassed the period of Grand Jury deliberations resulting in his indictment and brings into application the rulings of the Supreme Court in Estes v. Texas, 1965, 381 U.S. 532, and Sheppard v. Maxwell, 1966, 384 U.S. 333, ami Rideau v. Louisiana, 1963, 373 U.S. 723. We find no real merit in the contention. = The applicable eadpiaste Statutes are means of dis- ‘covering useful information and not ‘of adjudicating guilt. The examinations “were necessarily extensive and search- ’ ing and the hearings were public, and properly so. There was, however, no showing of such undue publicity as ~ would prejudice the Grand Jury in its deliberations, or as might deny Williams his right to a fair-trial. We agree with the district court,that there was no sufficient proof that the Trustee misised his office-for the purpose of precipitating ' the criminal indictment or for prejudicing William’ right - _ to’ a fair and impartial trial. In short, the evidence - Sey ‘. . @&- 11.. See Martin v.. Texas, 1965, 382 U.S. 928, 929; Martin v Beto, 5 Cir. 1968, 397 F.2d 741. - 31 simply fails to ‘sustain, Williams’ contention. that the sind 7 . Tuptcy examination wrongfully or improperly prejudiced his constitutional rights. With Case No. 107 being re- versed and remanded, the long. period intervehing after the _ bankruptcy examination and before any new trial makes it extremely unlikely that Williams’ rights -will be preju- diced by. any publicity connected with those examinations. III. Successive Prosecutionssand Rot Judicata. * \ Williams argues that, since the Government could have proceeded by separate count in No. i107 for. the offense .. charged ir No. 233, his prosecution in No. 233 after he had- been found guilty in No. 107 aniounted to harass-— ment. He urges that one or more of his short spécial pleas : in bar to No. 233" should have ‘been sustained. -The claim of conspiracy to defraud by means-of false and fraudulent statements and the mail frauds of which Williams was convicted in No. 107 were different from: the. conspiracy to unlawfully mianipulate the price of the Westec stock charged in No.- 233, and different evidence was required to prove guilt. We can find no harassment, unlawful splitting of conspiracies,” former jeopardy, res ta, or other special defense in bar of . As the Supreme Court ssid 3 in » Colianah v, United States, 1961, 364 USS. seed, sie “The Sacdincttiniiaias between a substantive offense. . and a conspiracy to commit is a posttigte of our law. ‘It has been long and consistently recognized by the ‘ e | Court that. the commission. of the iabatiative offense and a conspiracy. to commit it are separate and-dis- tinct offenses.’ Pinkerton v. United States, 328 US. 640, 643. See also: Pereira v. United States, 347 - US. I, i... is Williams ‘could be snonetll under Count One, the con-. " spiracy count, only by proving an agreement, express Or . implied, between -himself and one or more of his co- conspirators to commit’ the unlawful act and proof was. _ not necessary that that act was ever actually committed. - ° -. As to the twelve substantive counts, the situation is re- versed. ,An agreement between Williams and one or more " - of his co-defendants need not be proved, but. proof is. essential that Wilkams ‘actually committed the unlawful Me, 6 ee ‘The. indictment in Ng. 107 charges only one corispitacy and not multiple conspifacies, as in Powe v. United Statgs, 5 Cir. 1926, 11 F.2d 598. ' Williams next’argues that the twelve sicciieethiag counts, -- though formally asserted under. the mail fraud ‘statute, 18 U.S.C. § 1341, in fact charged the offense ap een in a 15 U.S.C. § acai whtich reads: “(a) Unless a registration statement is in effect as to a seturity, it shall be unlawful for any — di- reclly or indirectly— } -“(1) to make use of any means or instruments of * transportation or communication in interstate com- merce: or of the mails to sell such security through the use or medium of any prospectus or otherwise; or “(2) to carry or cause to be carried through the mails or in interstate commerce, by any meansgor~ _ instruments of transportation, any such security for the purpose ‘of ‘sale or for delivery after sale.” . ee de ad RCs a | ig. es ee 34 24 ? - That statute, unlike ‘section. 77q(a), clearly makes. each | mailing the gist of the crime.” Likewise, each’ mailing in , . violation of the mail fraud statute, 18 U.S.C. § 1341, is a separate offense.’ The penalties for the offenses are - ‘similar,’ :and the sentence in this case was within the ' range permitted by_either. We need not decide whether - the offense charged inthe twelve substantiye counts in Case No. 107 should have been laid under the Securities Act, 15 U. S.C. § 77e(a) or under the Mail Fraud Statute, 18 U.S.C. § 1341, for. any error in that regard isnot so — 7 material as.to be ground for reversal of the conviction. x _ Rule Hed, » FOR. Crim. P. oe V: Ae Venue. Williams insists that if the charges in the twelve counts which purport. to charge substantive ’ violations. of . the «mail fraud ‘statute ‘had. been brought independently of that statyte, constitutional venue would lie in the District of Columbia where the documents Were filed. He relies. for that insistence on tax evasion cases.’’ In those cases, ’. however, the .offense was not tomplete until the false . Statements were filed. Congress’. “so carefully indicated the locus of the crime.” Travis, supra, 364° U.S. at 636. | The language of 15 USS. C. § 77e( ), which thas been here- tofore quoted, “iS eritirely differént — “to carry or-cause’ ~ to be carried through the mails, ‘ete, "Saat language,, to 14. United States v. Hughes, S.D.N.Y. 1961, 195. ‘F.Supp. 795, 799; United States v. Allen, S.D.N .Y. 1961, 28 FRB. 329. 15. Badders v. United States, 1916, 240 US. 391, 394. 16. _ Compare 18 U.S.C. § 1341 with 15 U So: $774. 17. Sansone v. United States, 1965,-380 US. 343, 354, 85 S.Ct. - 1004, 1011; Travis v. United States, 1961, 364 U.S.2631, 81 S.Ct. 358; United States v. Lombardo, 1916, 241 US. 73, 36 S.€t. 508.” \ , \ % ‘ , our minds) more nearly comports with ‘the. wording of t oa . mail fraud statute, 18 U. S.C. § 1341, and a \ Sitacy count, venue s lies stints the agtee- ‘ment ade or whete an overt“act was —— “ss | > an VIL Vaguentss in the Indictment. _ This objection does not\warrant extended discussion. Clearly, we think the B-aien sufficiently apprised the defendant of what he must ‘be: ‘prepared to meet and en- “abled him, in case of future prasecution, to plead with - accuracy tlie defense ‘of. former acquittal. or conviction: United States v. DeBrow, 19 1953, 346\US. 374, ee a. - 7 vi “Refusal . of Instruction. =. waa a The district court refused Williams’ Tequest to charge the a as follows: . . “The law required that Wiestec Céegdetion: file with the Securities and Exchange Commisston and that Westec oahy send through: the mails-or—~—---—- other modes of transportation in interstate commerce | '. . various reports and documents such as annual reports, . ‘semi-annual reports, and ‘quarterly reports. You arein- .. structed therefore, that you cannot convict the De- . fendant, James W. Williams, for doing. or causing to .-_. . be done, as an officgr of Westec Corporation, mérely_ : oe » that’which the law required him to do.” | The authority relied on for that instruction is 7 . - er States, 1960, 363 US. 370, 390-392: ane. legally - ' 18. Bellard v. United, States, 5 Cir: 1966, 356 F.2d° 437, 438; : Miller v. er 5 Cir. 1965; 354 F.2d 206, 208. : read e . R el. pe ge | 36 5% lled mailing in Parr’ were “mailings of valid ‘and ? correct tax assessments, not of false documents. ‘The substantive counts ‘in Case. No. 107. charge that - it was. part of the schemé- and artifice to defraud that the defendants would. mail to the Securities and Ex- change Commission, American Stock Exchange, finan- “cial institutions, brokerage companies, and” thé share- holders and prospective shareholders of Westec the annual, semi-annual and quarterly reports of Westec;which re- "ports contained false, ‘fraudulent and misleading, state- - ments and representations concerning the operating results . of Westec and financial condition of ihaciisay The indictment esi takes up, the seve yal reports and. | describes the alleged” omissions: .and fals statements in” ' each report. Certainly ‘the Parr decision ¢annot have the | effect -of according immunity to any persn for filirig false ‘reports merely because the law requires feports be filed... ~. The requested instruction might well have conveyed: such ‘a “‘meariing to ‘the j jury. Ta say the least, it was highly mis-. a leading. The district court erent. fefused the instruc- ° ie ‘ ’ tion. In case nites: 26, $29 it this Court" the ideuaes : of conviction is reversed ‘and the cause is remanded for | S further proceedings not inconsistent with this opinion. In, case numbered. 26, 830° ‘in this Court ‘the judgment. ‘..: affirmed. Case No. 26, 829 REVERSED AND REMANDED. me Case No. 26, 830. AFFIRMED. | rs ies gf : . 37 nS ; ee ee ae nies \ aes —— x ~~ a APPENDAGE B IN THE - "FOR —_ Ideals ‘CIRCUIT i 2 - Mite States Court af Aprils. t. . . ” anes F : a é _— i - e - . _ No. 26829 and 26830 atari, "UNITED STATES OF AMERICA, 2. ne. 2 ent : _versus Steals AMES: WILLIAMS, i pea ciee - Defendant. “Appellant. .. : 3 _A ae: from the United States Sisrice Powe for the _ isthe ) Southérn District m7 Texas j ere ie we eae eng : eB: ‘ pane \ (Septenber ‘16, a. an (ON PETITIONS FOR RamaRiNG le is 4 ae ; 2 ah Before. RIVES, GOLDBERG, and G®DBOLD? y Se Circuit Judges. ~ PER Sn The Government wetitions for: rehiear- - - ing in Case No. 26829: and: Williams petitioris for ‘re- hearing in Case No. 26830. ‘We. consider = ae | Separately and ~. them. both. ~ ot } . \r sas es =e __ aestimony, if erfor, does not call for\reversal as to counts "of the indsetment other than ‘courts yine, ae eae apes I, “The Admission of Jeffrey's. Testimony. . ©. Over explicit and repeated. objections .of the defend- ant Willjams, -the. Government was permitted to prove _. by its expert witness Jeffrey his estjmates of the net future earnings, as of January |, 1967, af two producing ¢ ; oil ‘and “gas properties, the Irving properties and” the *- Wiftrof properties; when thé records upon which Jeffrey . . based those estimates were riot proved to be corrett or. i oS ee ““lVing Petroleum “Investment, Inc. and Wilcrof,. ~~ ae eS ate ee an tee ee GS. . We reversed the judgmeth of conviction in No.2682S: 7 becausé the admission of in testimony of the Witness ee ee Bly age HE ne an Ae | it he a ct fi il tals ete i s Hy i a a33 i 3 | a Lt 4 ne HIBS asyll i278 3 r ul che 8. fail He 3 aaal : a z. ieee a Bune el if i if : ai F Hl ee anh Hb 40 Sains | BS “Other ‘methods of appraisal are- used if there is sufficient production. history so that the established . production. of the trend is noticeable. “For instance, if a- -well has been. producing for . a number of years and hag shown a consistent decline . in production, -then it is possible to extract that to an economic limit ahd determine. the reserves.. That ‘is when the operating expenses exceeded the income, . at which- time the production is no. longer possible: - “After determining ‘the. reserves, records of. per- formance are examined to. determing what the operat- - ing. cost of these’ properties have been, and what. the selfing price of the oil is and what thé selling - ’ price of-the- gas is,:and then economic projections _ of future iricome are prepared, using estimates ‘[sic] rates of production by year with. the selling price of oil and gas per barrel or per thousand cubic*feet . of gas to determine the gross income of the property for each year, and then severance’ taxes, ad valorem taxes and the operating- expenses are deducted from the, gross ‘operting income to arrive at the net op- - _ erating income; aiso any future capital expenditures are deducted frem the gross income. ~~ “And after determining the flow ‘or the cash flow of- net incomie ,by years, it is customary to discount : future net income by years, using some discount -factor which is ‘usually, based on the going rate of interest that a ‘person would have ta pay to borrow .. Money, and this is called, the discounted future net * income, or sometimes called the present net worth - — of future net income. | a “Then, after obtaining the present net wont of future fet income, or discounted future net income, there are various methods of arriving af. fair market _ Value. of the property. from — figure. -° ° o . 41 . Sone” arbitrary ftection of that figure ‘is psually taken: as- the fair market value, depending upon the needs or the financial position or the requirements of the purchaser. A. property may be worth-more to one purchaser than to another, depending .on his ability to borrow money on this particular property or ‘depending on the rate of return that he desires on - his investment. ° of a.very detailed analysis, I take it, inspection of histories, past financial data -available- to. you, and the steps you take’ thereupof. ta ‘make-Your evalua- tions, I anticipate that you leave out quite a-num- ’ ber of factors, price per barrel of oil being deter- mined bythe gravity of the oil, the matketability of the oil of that particular lease, and its position within - the field, and its access to pipelines? ~~ . : “A. Yes. Of course, when a property is * eval- * uated, it is usually known what the going price Beg for crude or gas’ is in -that particular field at. that - time. Sometimes it is customary of sometimes - the a -evaluation | engineer will take into consideration _ - future escalations in the price of oil and gas, but ' ordinarily that “is not done with-ail. It's sometimes . done with gas, Where gas contracts ee for esca- -.Jation in the price a. gas in n the future.* ; es 2 “k “k y “O. In performing. ‘your geologic and engineering. . functions of this appraisal, and outlining the: steps. of | a formal: evaluation and appraisal-as you -did tothe ' jury, were these functiéns and each of these steps - performed in the evaluation of these properties? af Yes. _ : 3. Appendix, Vol. Iv, pp. 1234 to 1237." o® “Q. Mr. Jeffrey, you have given. a quick summary . NT es hE TS er ME OE OI ee Bn eS. ied ee Oe an EO me ee ee 42. “ . - - é - 3 * : ‘ pared and were t 43 ‘Thus the factual bases. used by Jefffey in preparing his estimates came fram’ reports filed: by the. ‘operators .of the leases as to the past: production performarice of the various leases and- from the records of the two companies as to the electrical logs, core atialyses, well records, prices of oil and 22s, and operating costs. © We held that. Williams wads denied his constitutional : right to confront and cross-examine the witnesses who pre- custodians of the records on-which ng other hurdies to be surmounted be- “of value might become admissible; Jeffrey, relied. fore Jeffrey’s-estJ " we- pointed oup that, “ [t]hera. was no proof that the records on which witness religd. were made’ and kept in such ‘fashion ay’to meétt the“requirements of the Federal Busi; ness rds Act, 28 USC $1732." .. te onetheless, the Gévernment insists that’ Jeffrey’s ¢ ex:. pert ,opinion of value as to-.each of the properties | was ‘properly. ‘admitted, arguing: a “(A) It is submitidd that this -test is ‘a mis- - applied and that the ‘proper test under. the circum- - ‘stances is.not whéther-the records themselves qualify for admission under an exception to the hearsay rule; .- but whether the‘records are such’ as are ordinarily, - cgnsulted ‘and refiéd ‘upon urider the pr&ctices, usages, and - Standards of the appraisal: profession. in like. s. We would cail attention also that the production salle: ‘filed with the @ate by the operatérs of the leases do not qualify for ad- . missién under’ the official records statute, 28 US.C. $1733: “(i} Books or records of account or minutes’ of’ proceedings” of any department or agency of the United States shall be ad- missible to prove the act, transaction or occurrence a$ a memo- randum of which the same’ were made or kept.” ; That much is conclusively demonstrated. by the rationale of Matthews vs “+ y. United States, 5 Cir, 1954; 217 F.2d 409, *. ‘- aye . *: Re er — eG ee ’ ’ : | ' 4% tases. (B) To impose a general requirement upon an. expert witness that he consult only such*sources as themselves would be admissible under the rules of evi- rule would go far to excluding all expert opinion . from. cfiminai trials. -In particular, it would wreak “havec. with medical and psychiatric testimony which plays a large’ and doubtless ° an -inereasing..role in ~ present-day criminal practice.’ * [Gov't’s petition sic 6 rehearing, p. 2.) ‘ : [The references (A) as (B) have’ been inserted to “facili- _ tate ready referencg,] * ‘fh In thus proceeding from (A) ‘to ¢B) the. Government has indéed .made “one giant “leap,” for,-whatever might .. be the merits or -demerits of such a holding, the’ present decision. doesnot impose any “general requirement” as . to the sources which may be consulted by an expert wit- ness. The Government’s contention -on this score has . caused us in the foregoing part of this opinion to extend ‘at some length our reférences to the record so that nett may be no misunderstanding as. to what i is here decided. *. Actually our decision - fits neatly" into” what the Gov- ernment itself- contends” to be a correct ‘Statement of the: kaw: en aa ee ee rar 5 * _ “If the .witness has gone. to only one hearsay source . and seeks merely to summarize the content of _ that source, then he is acting” aS a suiamary witness, not an expert. Since he’ is introducing the content — of the extra-judicial statements: or writings to prove truth; his testimony, like its source, is ‘hearsay and is, inadmissible unless the source qualifies under an ex- - ception to the hearsay rule. When, however, the wit- ness. -has gone to many. sources—although, some" OF dence and particularly witheut vfolating the hearsay _ ~ [Govit's eae for rehearing PD. 3-4]° - . 45 . all be hearsay in nature—and rather than introduc- - °. Ing mere summaries of ach. source he uses them all, alone with his own professional experience,. to arrive at his opinién, that‘opinion is régarded as evidence. in its own right and not as an attempt to ) introduce hearsay i in disguise.” : 4 The. eanea shows that Jefitey went to only one hear- ‘say source. for the ‘past production performance’. of ‘the ‘various leases, namely the: reports - filed withthe state. ‘by the operators, and to: only one hearsay source for the. électrical logs, core analyses, well records, prices of oil and gas, and. operating costs, namely the: records of the two companies. The fact that his testimony was: admitted | ; in the form of ari expert’s opinion does not by some magi- eal lederdemain remove the sjigima of inadmissible” hearsay aS: with. which its source was infected. _t This we do dot think that ‘the Government ‘has succesé- - fully met the objection to Jeffrey's testimony as heargay. ~ Assumting,. ar guendo, that it has done so,-we think that zn the Govérnment is clearly in error when it argues that ” there are no “different and more stringent requirements of adntissibility upon expert opinion ev ‘idepce: in criminal cases than apply i in civil cases,” and that the right of* con- “frontation | is B10) different or more far-reaching than the 6.- In support of this claimed distinction, the Sionbiatan: discusses the folowing authorities: 3 Wigmore on Evidence; 3rd ed. p. §2; Standard Oil. of California. v. Mey 5 ke Het, 251. F.2d 188; Hannan v. United States, D.C. Cir 1942, -131°1F.2d 1; H. & H Supply Co. v.. United, States, 10 Cir. 1952,.194 F.2d 553; Hammond . Lumber Co.. v. Los “Angeles Coutity, 1930, 28& P. 896; Johnson v. ° . Lowell, 1922,:240 Mass. “546. It is. not our purpose to: rule upon whether the quoted statement is.an entirely correct statement -of the ‘- law. One, we do agree in. substance with the first two sentences, . P ee fe ‘y! Fr ~ am 217 F2 at 418. - : ° =" 46 - hearsay rule (Government’ S -suggestion for, rehearing ey - banc, p. 2). To-sapport that thesis the. ‘Government lifts ’ out of coritext ‘a part of the opinion in Maithews v. United: States, ‘supra _ (Government S Petition: for Rehearing, Oe raha hcky “hag. P| - “Tt has sailiaiame been nila that [the right of con- frontation] may not be. invoked to exclude evidence . | . Qtherwise admissible urder well-established exceptions to the hearsay rule, and undoubtedly Wigmore’ is correct in saying, with respect to the Constitutional. - right to confrontation, 5 Wigmore, Evidence, $1397: ‘“*The- rule sanctioned’ by the Constitution is. the Hearsay rule as to cross-examination, with. all the ‘exceptions that may legitimately be found, - developed, or created therein « - s ‘ " That uotation: was not necensen’s to the- decision: in. Matthews. - It overlooked the’ much earlier Qpinion in _Mattox v. United States, 1895, 156 U. >. 251, 242, 243, where the eee Lowe ‘stated: oe “The primary ‘object. of ‘the constitutional pro- 4 : . Vision in. question “was to prevent depositions or ex . parte affidavitsy such’ as were sometimes admitted in _ Civil cases, being used against the prisoner in lieu of - a personal examination‘ and. cross-examination of the witness tn which the accused has an opportunity; not only of testing the -recollection and sifting the con- science-of. the witness, but of compelling him ta stand face to face with the jury in order that they may look at -: him,eand judge by *his demeanor upon the stand and the manner in which he gives his testimony ewhether -he is dangle of belief. a ee added. ).. - - eee eee “ &, ne . : + Since the: date of our decision in.Mattheivs, _ supra, the... - Supreme Court has held ;that,\“The right to confronta- -. ‘tion is basically a trial right, It includes both the opportu- nity to cross-examine .and the ‘occasion. for the. jury to "weigh the demearior of,the witness,” B&rber'y. Page; 1968, 390 U.S. ‘719, 725. Again, as recently as June 23, ‘1970, a °’ “the Court said: to | -: _§.- The confrontation. clause serves: other. interests in addition to. the assurance of. evidentiary reliability. [t also, for examp ,-protects - the right to be present. at. trial when incriminating evidenge is intro- duced. and the right to have the trier of fact’ observé the demeanor .of witriesses. See, The Supreme Court, 1 969. Term, 84 Harv. L. Rev. 108-17 (1970). - 6. In Green, the court observed that “merely because the evidence. - is admitted in violation of a-long-gstablished ‘hearsay rule does not — tye ee gh os gyi - Hence, , while the original. panel -of this court ‘based ~ ‘its decision principally upon the. confrontation clause, we find it necessary -to. consider separately . whether Jeffrey’s’ testimony violated the confrontation clause or : the hearsay rule. First, however, we shall describe in greater: detail the testimony of the yeu witness J effrey. Jeffrey: Ss Testimony The testimony of. J effrey concerned the value of two | Bio a oil aid gas properties known as the Irving ; ° properties and the Wilcrof properties. J effrey was an in- dependent consulting: petroleum engineer. In his testi- mony Jeffrey described his professional background and» _ then explained the. procedures employed in appraising the value of -oil and gas, pr ies. This testirnony is quoted at length in the Sd gn manent opinion overruling the: : ‘petitions for rehearing and will not be ye emma here. . - ‘Jeffrey testified that, on the basis of the appraisal pro- cedures which he had described, he. estimated the value of a Irving property’ to have been slightly less than $500,000 and the value of the Wilcrof property to have been approximately $44,469. In reaching these estimates, “Jeffrey made a personal inspection of the properties and - consulted the following sources of information: (a) the * past production performance of the leases obtairied from | reports which are filed by the operators of the leases with - the State, (b) core analyses data and well records obtained from the records of: the two companies, (c) data as to the price of oil and gas obtained from pipeline. run staté-' poh err the records of the two. somipanice, and (d) lead to ‘the conclusion that confrontation rights have been denied”, " 399 US. at 156, 26 L-Ed. ad at 495- 96. * emer 9 He ile data as. to operating costs for.the year ‘1966 from ‘the ~ billing records from the operators of the leases. ea Williams repeatedly objected. to’ the admission of this expert testimony because tlie records of the two. cor- porations upon -which Jeffrey based‘ his opinion were not themselves offered in evidence. The. district judge over- ruled these objections and permitted J effrey to give his | opinions as to the: value of the properties. At the end of . the direct examination, the Government Offered into evi- a . dence the two appraisal’ reports, marked Government Ex- hibit X4. and X5,«which Jeffrey -had prepared. Defense. counsel objected that the exhibits were hearsay and the court jupheld the objection excluding the reports. Jeffrey. was ‘then cross-examined at length by the defense. Durihg- a cross-examination, numerous factors which might reduce the | weight of Jeffrey’s expert opinion were developed, includ- °. : ing the sources of information. upon. which 2. had relied. Il. The Coniroisanion Claisse ‘The first question before the court is whether ie ad- | mission of’ Jeffrey’s- expert witness testimony violated © - Williams’ Sixth Amendment right of confrontation. .In _its per curiam opinion denying the motion for rehearing, . the original panel of this court relied on California -v. . Green, supra, to support its decision that the admission ~ of J effrey’s. testimony violated the confrontation clause. This reliance by the panel on Green was misconceived. In- deed, Green makes it clear that there is no Sixth Aménd- “ment obstacle to the admission of Jeffrey’s testimony. - In Green, the Supremé Court held: that the -admission - . of the prior inconsistent statement~of a witness as sub- _» Stantive eviderice in a-crimirial case did not violate the - confrontation rights of the actused so long as the wit. nesg was present at trial and available for cross-examina: _ tion. The relevance of Green to the case at bar is that it Ht, represents the most recent effort by the Court to elaborate Kes the nature of the’ right “of confrontation. ; the Court observed aes of pit e {o te Our own decisions se oy to hale: deccputbsd at an - early date that ‘it ‘is literal right to “confront” _. the- witness -at the time of the trial‘ that forms ‘the core of the values furthered ey: the. gpa “ Clause . a alt 399 US. at 157, 26 L.Ed 2d 2 496. ‘In its opinion, : ‘In support of- this statement, the ‘Court quoted with: ap- proval from Mattox v. United, States, 156 U.S. 237, 242- eo 43, 39 L.Ed. 409, bier 15. ot. 337 (1895): The primary pee of ihe PEI provision ~ -in question was to prevent depositions - or ex parte _affidavits, such as were:sometimes admitted: ip civil ‘cases, being used against the prisoner in. lieu of a personal examination -and cross-examination of the witness in which the accused has an-opportunity, not °. - a only *of testing the recollection and sjfting the con- science of the witness, but of compelling him to stand _ face to face with the jury in order that they: may ° look at him, and judge by-his demeanor upon the - stand and the manner in which he aby his _testi- | mony whether he is. worthy of belief . Green, ‘then, makes it aaa that the confrontation: guaran- ‘tee focuses upon “the right of the accused ‘to confront | and prabe each of ‘his accusers :— a narrow, adversary activity”.” + 7. The Siediie Court, 1969 Term, 84 iy. L. Rev. 108, 112 (1970). ws pee ge ane “| dent that the admission of Jeffrey’s' testi ‘violate -that guarantee. J effrey Was personally available "for ¢ross-examination by the appell nt : opportunity for the defense to probe t accuracy of the sources reli 59. Sees ae e ‘ . & ; 3 ° Given this view of the. confrontation clause, mony did not ‘There ,was. ample reasoning processes b ich he arrived at’ his valuation. In light « of the Teasoning of -.Green, we conclude that Jeffrey’ S presence at the trial and his availability for cross- - examination satisfied the constitutional right of confronta~. tion regardless of whether his testimony | fell withjn one of - the traditional e céptions to ‘the hearsay tule. (Had the i Government attempted to introduce the appraisal’ reports in evidence without calling the expert who had ' prepared them, and offering an opportunity for cross-examination, _* then Williams’ right of confrontation would have been in- fringed, but this 4 ds not the case. at bar. ' + ladbed, the intensity of the cross-examination which the , witness - ‘Jeffrey actually received . Suggests that Williams’ 3 right of confrontation was fully protected. Counsel for . the defense. elicited from | Jeffrey several statements that -. could. be. viewed as reducing the weight of his testimony. For example, Jeffrey acknowledged that he could not. be bsolutely certain that the records he examined were cor- _ réctt.He further testified that he ‘had not himself surveyed the land and that he could-not be sure that the surveys which he examined were correct. J ffrey testified* that ‘he properties. Pines hy yt nes a authenticity and | -upon b Jeffrey and the- 8. _ had done what is customary in his p Fiat ‘with regard: - to verifying’ and accepting the various reports of the two companies’ which he haq used in “his valuation of ;the OS EPA 60 \ Il. The Federal Hearsay Rule \Having established that there is no constitutional im- pediment to the ‘introduction of Jeffrey’s testimony, there - remains the question of whether the expert testimony’ _ ated the applicable federal hearsay rule. We » conchade t it did not. 2 "Expert witness testimony is a * widely-recognized ex- . céption to the rule against hearsay testimony. It has "Jong been’ the rule of evidence in the federal courts that an expert witness can express an opinion as to value even though his opinion is based in part or solely upon hearsay sources. United States v. Alker, 3 Cir., 1958, 260 F.2d 135; Birdsell v. United States, 5 Cir., 1965, 346 F.2d 775, 779-80, cert.. den. 382 US. 963; Brown vy. , United States, D.C. Cir., 1966;. 375 F.2d 310, 318; H & H Supply Co. v. United States, 10 Cir., 1952, 194 F.2d 553. The rationale for this exception to the rule against hearsay is that the expert, because of his pro- fessional knowledge and ability, is competent to judge for himself the reliability of the records and statements on which he ‘basés his expert opinion." Moreover, the Opinion — Of expert witnesses: must invariably rest; at least in: part, - upon sources that can never be proven in court. An ex- pert’s opinion is derived not only from records and data, but from education and from a lifetime of experience.’ . Thus, when the expert witness has consulted numerous - sources, and uses that. information, together with his‘own - professional knowledge and experience, to arrive at his opinion, that opinion | is‘regarded as evidence in- its own ‘sight and not as hearsay i in disguise. f~ 8.. Cf., C. McCormick, Handbook of the Law of Evidence. $15 (1954); Rheingold, The Basis of Medical Testimony, 15 Vamd. L. Rev. 473, 489 (1962). 61 wR, _ This rule of law was most recently stated in the Fifth Circuit in Birdsell v. United States, supra. This was a ’ criminal prosecution in ‘which the state offered the testi- mony of a psychiatrist which was based upon a personal interview with the patient and upon a study of hospital “records and ‘psychological. tests performed “by ather physicians. The defense argued that the testimony was inadmissible because the records on which the testimony was based were inadmissible under the Business Records Act, 28 U.S.C. 1732. The Fifth Circuit rejected this argu- ment, holding that: . there is abundant-aythority that -an expert wit- - ean dhe te eddie for Gtaeenaminnten op te “trial miay use such records as the basis-for an opinion without the proponent having to call every person . -who made a recorded observation. * 346 F.2d at, 779. | This case firmly established the principle, which we re- iterate here today, that an expert's testimony peed not be based solely upon records which are themselves introduced - in evidence so long as the sources of information are of . Se ee, ee © Sal op tons or infetences upon the subject:. In H & H Supply Co. v. United States; supra, the Tenth Circuit permitted the admission of expert wit- ness testimony on facts that are strikingly similar té the ’ Case-at bar. This was a condemnation case involving the value of certain oil leases. The Government called two professional petroleum engineers to give their expert opin- ion-as to the value of the oil leases. Like Jeffrey in the case at bar, these petroleum erigineers ‘consulted hearsay oat Pee My tar PF a Pt, ee ee ee - F : > sources in formulating their opinions: These included not | - only an examination of the claimant’s books and recdrds_ but also. an on-the-scene examination of the property, a geological - -study of the land in question and of nearby land, conversations with employees of’ the claimant, an examination of records of the Osage Indian Agency, ‘ex- amination of records of companies owning adjacent oil ° - Teases, etc. Over ‘objections that the testimony was hear- say, the court admitted the evidence, observing: The testimony of the petroleum engineers with re- spect to the sources of .their information was not . Offered for the purpose. of establishing the truth of the information received by them. They. were testi- fying as valuation experts and the sole purpose of | this testimony was to establish the sources upon ; which pl relied. in reaching thetr coaclusions as to values . 194 F.2d 553, . 555. : Appellant asserts that this case. and other civil cases are inapposite because this is a criminal prosecution. . This argument is mistaken. While itis true that the confrontation. clause has applicability only in. criminal cases, the same cannot be said for the hearsay. rule. The rule against: hearsay*has as its purpose the assur- | - ance of evidentiary reliability. This purpose is equally served in civil as well as criminal cases. We know of no authority for the general proposition that a more - Stringent hearsay rule must be applied in criminal than in civil cases. The Constitution protects the defendant in criminal prosecutions through the confrontation clause and the presumption of innocence. These are in no way 63 undermined . by’ applying the samp hearsay standards in - criminal as in civil cases. The federal hearsay rule to which we adhere in this case is the same as that adopted in the Proposed Rules of Evidence for the United States District Courts and, Magistrates (1969). by the Committee on Rules of Prac- tice and Procedure of the Judicial Conference of the United States. The proposed rules provide as follows: | Rule 7-03. Opinion Testimony. by Experts, The facts or data in the particular case upon which _ an expert bases an.opinion or inference may be those perceived by or made Known to him at or be- fore the hearing. If of a type reasonably relied on by experts in forming opinions or inferences upon | the subject, the facts or data need hot be admissible in evidence. ‘capt The Advisory Committee’s Notes state that this rule‘ con- templates ‘the “presentation of data to the expert outside in criminal as‘well as civil cases ° of court”. The proposed rules are drafted to apply equally . ‘Applying these principles to the case at bar, we can only*conclude that the trial judge properly admitted Jef- frey’s testimony. Jeffrey’s credentials as an éxpert were never assailed. Nowhere has it been argued that the - ords consulted by Jeffrey were other than of fhe customarily relied on by experts in valuing oil propefties. Jeffrey so testified and this testimony was never chalenged. Appellant argues that’ Jeffrey was not a true expert | witness, but rather was a “summary” witness who merely 9. For a tseful discussion cof proposed Rule 7-03, see Green, Highlights of the Proposed Fedexel Rules of Evidence, 4 Ga. L. Rev. .1, 33-34 (1969). ipa . \- . ° Seite. Hylidae Mpschey Itptibll vidbs ba liseen 23 -. reer summarized the contents of the records of the corpora- tions. Appellant contends that the testimony of. a summary witness is admissible only if the original records which the witness is summarizing are themselves introduced in evidence. Cf. McDaniel v., United ‘States, 5 Cir., 1965, ‘343 F.2d 785; Greenhill, v. United States, 5 Cir., 1962, 298 F.2d 405. | However, we need not reach the question of whether a summary. witness must -first introduce the on ‘which he bases—his—testimony because it>is clear that Jeffrey was not such a summary witness. A reading of Jeffrey’s testimony indicates that it involved far more than a mere summation of the records of the two corporations. ~ Jeffrey. testified that his initial step in appraising the two properties. was the gathering of -all available information. _He inspected the properties and the equipment, and talked to the operating personnel of the leases. He obtained and - examined electrical logs, core analyses and well records ‘ of the two corporations. He acquired the past production petformance of the various leases from State reports. Bill- ing records from the operators of the leases were examined to determine production costs. Oil and gas prices were established from pipeline run statements. | Having consulted all of these variegated sources, Jeffrey _ "then applied the concepts derived from his professional experience to reach an opinion as to value. He pr jected the future gross income of the leases using estima ates of production and the ‘selling price of oil’ and gas, and — then adjusted this figure to net income by deducting esti- mated expenses, taxes, and capital expenditures. The esti-. mated future net income’ was. then discounted to ascertain its present value. Following customary practice, Jeffrey 65. then selected an “arbitrary® fraction of the present value - of the future net income as representing the fair market value of the leases. Jeffrey testified that this arbitrary fraction was based’ upon the needs and financial position of the purchaser. -The application of these concepts to produce an expert opinion as to value involved far more ss than the meré recapitulation of: the contents of records. On the contrary, Jeffrey consulted many sources, and then. formed an independent judgment which reflected his skill ° and knowledge as an expert. | - Were we to accept the evidentiary rule advanced by’ the appellant and accepted by the original panel of this court, we would create a serious barrier to the: use of expert testimony in the federal courts. The same logic which would bar Jeffrey from consulting the core analyses, -€lectric logs and well records of the two companies would . equally bar a physician from relying upon lab reports and the like unless the technician who conducted ‘the test was -’ / also produced. Similarly, a real estate expert would be barred from. testifying as to, the value of real property unless he‘ proved in court the transactions on which he based his expert judgment. We think that such an eviden- _tiary rule would be unwise. As previously noted; the ‘modern trend, as reflected in the Proposed Rules of Evi- dence, for the district courts is towards eliminating such - Testrictions on expert testimony. For the foregoing reasons, we reverse the decision of the panel of this court on the issue of the admisibility of . Jeffrey's testimony.. The judgment of the district court is . in all respects affirmed. : ; AFFIRMED. ._ ° , . ° . . : e v é . a 3 : Dee ; F . : rd . 2 : . ‘ 7 - » wey nar * ee , , BOE LON GE LTS TERR EI oO RT PME PRELII RIT Pi AS te NS FEET SRE NY, FIMO: A a ik ll i lh a ks A a i ge Satan, be aked PP Ne PE at ack vt Pa & x ,. ” a ‘ ? . \ " * e . z . . F Py * be ‘ . . ? > FY P *y a ~ 66 . ae RIVE, Circuit Judge, Siting: with whom J udges _ GOLDBERG and GODBOLD join:. re ssennnttalie dissent for the reasons: expressed in the | panel’s original opinion’ reported in 424 F.2d 344, andg its opinion Wenying the petitions for fehearing, reported in 431 F.2d 1168. & 67 ‘APPENDAGE D Sate): a2; 3 ‘itn Sta 2 outta A ppeals FOR THE aah 6 CIRCUIT ~ October Teim, 1970 Nos. 26829 and 26830 : : -D. c. Docket Nos. CR: 68-H-107 &. CR 684-333 / _ UNITED STATES OF AMERICA, 3 . Plaintidt-Appeliee "versus JAMES W: WILLIAMS,. i . ake eo _Defendant-Appellant. rea A Ppeals from the United. States District Court for the. es g Southern District of. vam Before BROWN. Chief J udge, eid’ RIVES, -WISDOM,- GEWIN, BELL, THQRNBERRY, COLEMAN, GOLD: — BERG, AINSWORTH, GODBOLD.,. DYER, SIMPSON, en CLARK, INGRAHAM, and RONEY, Circuit pudge. , _ JUDGMENT ON PETITION FOR REHEARING ' EN BANC This = came on to be. heard on defendant -appellant’ S ‘ petition for rehearing en banc without oral argument: : ee ; et “9 ek Ce en ON CONSIDERATION WHEREGR, It is now ordered and adjudged by this Court that tlie opinions and judg- ~~ ments of the panel of this Court of March 26, 1970 are _, hereby withdrawn; and that this cause”in all reagects be, and the same is hereby, affirmed. - _ September 16, 1971 a RIVES, Circuit Judge, diteenting . with ‘whom Judges ~ GOLDBERG and Cope» join: Wie Issued As Mandate: 69 ’ ; APPENDAGE, Ee | | | IN THE: ° oe Mien States Cmirt of peal | FOR THE FIFTH CIRCUIT. i. ) _ Nos, 26829 and 26830 © _ UNITED STATES OF AMERICA, ‘ | gm) Plaintiff-Appeliee, «Versus, J JAMES W. WILLIAMS, 4 ‘Defendant-Appellant. ; on a 8 . . A ppeals from the United States: District Court for the | Southern we of. T exas , _ (November 4, 1971), ON PETITION & OR REHEARING - arene BROWN, Chief Judge, and RIVES, WISDOM, ~GEWIN, BELL, THORNBERRY, ‘COLEMAN, GOLD- BERG, AINSWORTH, GODBOLD, DYER, SIMPSON, _ MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges, as ao PER CURIAM: | - IT IS ORDERED that the pelition- for rohdaring” filed in the above entitled and numbered causes bg and the —_ is hereby DENIED. _ ’ Judges Rives, Goldberg and Godbold dissent from the denial of ma Petition for ccheaning. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0383%3A1. Public record. Not legal advice.