Petition for Writ of Certiorari — Becker v. United States

Supreme Court of the United States

Octosrr Tzrm, 1972

2-664

DAVID CALVIN BECKER,

Petitioner,

vB.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHARLES A. BELLOWS,

Ten South LaSalle Street

Chicago, Llinois 60603

Attorney for Petitioner

JASON E. BELLOWS

RONALD N. HEFTMAN

on the Brief

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

Opinions Below

Jurisdiction

Questions Presented for Review

Constitutional and Statutory Provisions Involved

Statement of the Case

Evidence at Trial

The Motion for a New Trial Based Upon Newly

Discovered Evidence

The Government’s Knowing Use of False Testi-

mony on Appeal ,

Reasons for Granting the Writ

Conclusion

Appendix A (Opinion of the Court Below)

Appendix B (Opinion of the Trial Court)

Appendix C (Judgment of the Court Below)

Appendix D (Order Denying Petition for Re-

hearing)

Appendix E (Title 18, United States Code, Section

659)

ii

CITATIONS

Cases

PAGE

Jones v. Kentucky, 97 F.2d 335 (6th Cir. 1938) ............ 14

Larrison v. United States, 24 F.2d 82 (7th Cir. 1928) 13, 14

Mesarosh.v. United States, 351 U.S. 1 (1956) ........11, 13

Napue v. Illinois, 360 U.S. 736 (1959) 15

Townsend v. Burke, 334 U.S. 736 (1948) 15

United States v. Higgins, 412 F.2d 789 (7th Cir. 1969) 13

United States v. Rutkin, 206 F.2d 647 (3d Cir. 1953) .. 13

United States v. Tucker, —— U.S. ——, 92 S.Ct. 589

(1972) 15

United States v. Young, 426 F.2d 93 (6th Cir. 1970) 13

Other Authority

Moore, Federal Practice (2d ed. 1970) 12

’

Z

In the

Supreme Comt of the United States

Ocroper Term, 1972

No.

DAVID CALVIN BECKER,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

Petition For Writ of Certiorari to the United States Court

of Appeals For the Seventh Circuit

Petitioner, David Galvin Becker, prays that a writ of

certiorari be issued to review the judgment of the United

States Court of Appeals for the Seventh Circuit, entered

in this cause on July 13, 1972.

Opinions Below

The opinion of the Court of Appeals is as yet unre-

ported. It is reprinted as Appendix A, infra. The opinion

of the district court, denying the Petitioner’s motion for

a new trial based upon newly discovered evidence, is unre-

ported. It is reprinted as Appendix B, infra.

2

Jurisdiction

The judgment of the Court of Appeals, (Appendix C,

infra.) was entered on July 13, 1972. A timely Petition

for Rehearing was filed, but was denied on October 4, 1972,

(Appendix D, infra.) The jurisdiction of this Court is

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

Questions Presented for Review

1. Whether a federal criminal conviction may stand,

where on a motion for a new trial based upon newly dis-

covered evidence, the defendant proved that a government

‘witness testified falsely as to a matter crucial to his

defense?

2, Whether a sentence may stand, where the severity of

that sentence was influenced by false testimony that the

~ defendant had fabricated evidence at his trial?

3. Whether the government’s knowing assertion of

false testimony on appeal violates due process of law?

Constitutional and Statutory Provisions Involved

The Fifth Amendment to the Constitution of the United

States provides, in pertinent part:

“‘No person shall * * * be deprived of life, liberty, or

property, without due process of law * * *,”?

Title 18, United States Code, Section 659 is reprinted

as Appendix E, infra.

Statement of the case

Petitioner David Galvin Becker, the President of World

‘Wide Warehouses, Inc., was indicted by a Grand Jury of

the United States District Court for the Northern District

of Illinois, and charged with a single violation of Title 18,

3

United States Code, Section 659. Specifically, the indictment

charged Becker with the knowing and willful possession

of 142 television sets, which had been stolen from an in-

terstate shipment. Becker was tried before the Honor-

able Bernard Decker, and a jury. He was found guilty,

and sentenced to a term of five years in the custody of

the Attorney General of the United States. Subsequently

he filed a motion for a new trial based upon the newly dis-

covered evidence that a material prosecution witness had

testified falsely at his trial. The motion was denied, and

an appeal from that ruling was consolidated with Peti-

tioner’s appeal of his conviction.

Evidence at Trial

Prior to trial, a stipulation was entered into between

the prosecution and the Petitioner, which left for trial

the sole issue of whether Petitioner, the president of a

warehousing firm, maintained possession of the sets in his

warehouse knowing that they had been stolen.

To this end the government introduced evidence of

the retail value of the sets, and testimony that Becker

sold a small number of sets for cash at well below the mar-

ket value. The government also attempted to show that

documents prepared in connection with the receipt of

the television sets were irregular.

Pursuant to a subpoena duces tecum Muriel Osten, an

employee of World Wide Warehouse, produced certain

documents relating to the receipt of the television sets.

Among them was a non-negotiable warehouse receipt is-

sued to Standard Distributing Company for the tele-

vision sets, dated September 12, 1969 and subsequently

designated Government’s Exhibit 15. Mrs. Osten testi-

fied that she prepared the receipt on or about September

4

12, 1969. (Tr. 199-206) She subsequently stated that she

could not recall the exact date of preparation, but that she

prepared the receipt as soon as possible after the sets were

received, (Tr. 381-2)

After Muriel Osten had testified that she prepared Gov-

ernment’s Exhibit 15 on or about September 12, 1969,

the government called one Robert Burns, the president of

the firm which printed warehouse receipts for Petitioner.

He testified that Petitioner had ordered two printings of

warehouse receipts from his firm, one on September 19,

1968, and another in October, 1969. He identified a

warehouse receipt designated Government’s Exhibit 45 as

a sample of the earlier printing of receipts taken from

his own files He was not shown a sample receipt from

the later printing.

Burns stated that by comparing Government’s Exhibit

15, the receipt for the television sets dated September 12,

1969, with Government’s Exhibit 45, the sample receipt

from the September, 1968 order of forms, he could tell that

Government’s Exhibit 15 had not come from that first order

of forms. Burns stated that Government’s Exhibit 15

had come from the second order of forms, printed in Oc-

tober, 1969, and was therefore not in existence on the date

it was alleged to have been prepared by Mrs. Osten.

The trial judge himself was later to term the origin of

Government’s Exhibit 15 a ‘‘crucial’’ and ‘‘integral’’ as-

pect of the defendant’s case. (Memorandum opinion, App.

12)

During the conference on instructions the trial judge

stated, in reference to Burns’ testimony as to the origin

of Government’s Exhibit 15, ‘‘* * * I can say that it pre-

sents some very serious questions for me; it will present

some serious questions for me relating to the witness, and,

possibly, relating to someone else.’’ (Tr. 390)

After the return of the verdict the trial judge ordered

an investigation of Petitioner’s attorneys, Martin Ashman

and Bernard Brody. He stated, ‘‘I am going to direct

the United States Attorney in this case to make a com-

plete investigation dealing not only with the defendant,

but also with the defendant’s attorneys to determine the

circumstances under which Exhibits 11 through 17 were

prepared * * *’’, (Tr. 477)

Immediately prior to sentencing, the Assistant United

States Attorney, speaking in aggravation, made the follow-

ing statement to the trial judge:

‘“‘T might also add * * * certain documents were pro-

duced that were ultimately proven to be absolutely

phony documents used to further confuse the situation

and cover up, that really shows the intent of this par-

ticular man to do this and on the motion to suppress,

while it is not relevant to the trial, or in the trial, he

said that these documents were made in the regular

and ordinary course of his business. Again, this was

totally false.’* (Tr. 482)

The Motion for A New Trial Based Upon Newly

Discovered Evidence.

In September, 1971, while an appeal from his conviction

was pending before the United States Court of Appeals

for the Seventh Circuit, the defendant filed in the district

court a motion for a new trial based upon newly discovered

? Although the trial judge ordered an investigation of all the

documents prepared in connection with Petitioner’s receipt of

the stolen television sets, and although the prosecutor argued

that “certain documents” were proven to be “ phoney”, the only

evidence of fabrication was the false testimony of Burns con-

cerning a single document, Government’s Exhibit 15.

6

evidence, pursuant to Rule 33 of the Federal Rules of

Criminal Procedure. The motion, supported by sworn afi-

davits, showed that Burns had testified falsely that Gov-

ernment’s Exhibit 15, the warehouse receipt issued for the

television sets and dated September 12, 1969, had come

from an order of forms which did not come into existence

until October, 1969.

Attached to the motion were samples of the October,

1969 printing of warehouse receipts by Burns’ firm. These

receipts, no sample of which was produced at the trial,

contained a three line heading. The receipts from the

first order of printing of September, 1968, as evidenced by

Government’s Exhibit 45, contained a four line heading.

Government’s Exhibit 15, the questioned warehouse re-

ceipt dated September 12, 1969, also had a four line head-

ing. Thus, the defendant showed by irrefutable physical

evidence that Government’s Exhibit 15 could not have

come from the second printing of warehouse receipts as

Burns had testified.

Petitioner also proved that Government’s Exhibit 15

had in fact come from the first printing of receipts on

September 19, 1968. The affidavit of Donald Doud, an

expert examiner of questioned documents, was filed in

support of the motion and stated,

“*Through careful examination of the evidence, in-

cluding microscopic inspection and measurement of

the printed characters on questioned and known docu-

ments, affiant was able to reach a positive opinion re-

garding the crash printing on Government Exhibit 15,

as follows:

A. It is affiant’s opinion that the crash printing on

Government Exhibit 15, the questioned warehouse

receipt of 9/12/69, was prepared by the same printing

plate used for those exemplar documents described un-

7

der the caption ‘‘Format 1’’.? Included among these

documents are dated transactions of the World Wide

Warehouse Company purportedly covering a period

from 8/1/69 to 10/27/69. In short, insofar as the

printing is concerned, this examination failed to dis-

close any anachronisms between Government Exhibit

15 and the exemplar specimens covering the same gen-

eral span of time.

B. The crash printing design in the documents de-

scribed under the caption ‘‘Format 2’" is patently

different from that shown on Government Exhibit 15,

being composed of only three lines of printing rather

than four and manifesting other differences indicative

of the use of a different printing plate. Included in

this group of documents are purported transactions

of World Wide Warehouse dated between 12/24/69 and

9 /17, fi 9

The government presented no evidence rebutting Doud’s

conclusion that Government’s Exhibit 15 came from the

first printing of warehouse receipts. However the govern-

ment theorized that the receipt could have come from a

third printing, despite Burns’ testimony that his firm

printed only two orders of receipts for Petitioner, and his

further testimony that his firm printed Government's Ex-

hibit 15.

? The “Format 1” documents which Doud compared with Govern-

ment’s Exhibit 15 included Government's Exhibit 45, the ware-

house receipt which Burns identified as coming from the first order

of printing, as well as several other receipts from that printing

dated during a period from August 1, 1969 to October 27, 1969.

*The “Format 2” documents included warehouse receipts dated

during a period from December 4, 1969 to November 17, 1970, and

originating from the second printing ordered by World Wide Ware-

house on October 28, 1969.

The Government's Knowing Use of False

Testimony On Appeal

As a result of the trial court’s direction to the Assistant

United States Attorney to investigate the defendant, his

attorneys Martin Ashman and Bernard Brody, and

the exhibits designated Government’s Exhibits 11

through 17, (Tr. 477) an indictment was returned

on September 24, 1970 charging Muriel Osten with perjury.

The first count charged that at Becker’s trial she testi-

fied that she had prepared Government’s Exhibit 15 on

or about September 12, 1969, when in reality Government's

Exhibit 15 was not in existence until October, 1969.

On October 27, 1970, subsequent to the return of that

indictment, and prior to the filing of Petitioner’s motion

for a new trial based upon newly discovered evidence,

attorneys for Muriel Osten had a conference with the As-

sistant United States Attorney who prosecuted Becker,

and who was also responsible for the prosecution of Muriel

Osten. (Becker Aff. 9)* Also present were Burns, the

witness who had testified at Becker’s trial that Government

Exhibit 15 was fabricated, and an F.B.1. agent. The de-

fense attorneys showed Burns and Sprague a sample of

the second printing of warehouse receipts ordered by

World Wide Warehouse in October, 1969, which contained

a four line heading, and a copy of Government’s Exhibit

15 with its three line heading. Burns then stated that he

could have made a ‘‘ghastly’’ mistake when he testified

that Government’s Exhibit 15 had come from the second

printing of receipts. (Becker Aff., p. 9-10)

*“Becker Aff.” refers to the affidavit of Petitioner Becker sub-

mitted in support of his motion for a new trial, which was certified

as a supplement to the record on appeal.

9

As a result of this conference, a superseding indict-

hibit 15 was false because the exhibit was not in existence at

the time it was alleged to have been prepared. During the

course of the Muriel Osten trial, which commenced on

1969. Yet in a brief filed on August 23, 1971 seeking af-

firmance of Becker’s conviction, the government not only

failed to make mention of this fact, but argued that Gov-

Osten subsequently entered a plea of nolo contendere to the charges

of perjury, and was fined $1,000.00 on each of the three counts

charged in the superseding indictment.

10

ernment’s Exhibit 15 had come from the second printing

of receipts. The government’s brief stated:

“*We contend that Robert Burns was qualified as an

expert to compare and give his opinion as to the

printings of various warehouse forms in question, and

also to the fact that Government Exhibit 15 was not

from the first printing in 1968, but by the process of

elimination had to be from the second printing in Oc-

tober, 1969.’’ (Brief for Appellee, p. 35)

Only after Petitioner filed his motion for a new trial

did the government acknowledge the false testimony. In

a brief filed in support of the district court’s denial of

Petitioner’s motion for a new trial the government sub-

sequently said,

‘*We admit that the defendant has shown that Mr.

Burns was in error when he said that Government’s

Exhibit 15 was from a second printing in October,

1969, because a true copy of the October 1969 second

printing is a three line heading and not a four line

heading like Government’s Exhibit 15.” (Answer of

Appellee to Supplemental Brief, p. 4)

“*In this case, the small amount of false testimony was

inadvertent and unknown to the government at the

time of trial.” (Second Answer of Appellee to Supple-

mental Brief, p. 6)

11

REASONS FOR GRANTING THE WRIT

L

Petitioner’s conviction is the product of false prosecution

testimony, and cannot be sustained.

This case presents a question of significance to the ad-

ministration of criminal justice: May a conviction stand

upon proof, submitted on a motion for a new trial based

upon newly discovered evidence, that a prosecution wit-

ness testified falsely as to an issue crucial to the defense?

Petitioner, the president of a warehousing firm, was

charged with the possession of goods which had been stolen

from an interstate shipment. His defense to the charge

was that he had received the goods in good faith, and in

the ordinary course of his business. The warehouse receipt

which he had issued for the goods was, in the words of the

trial court, ‘‘crucial’’ and ‘‘integral’’ to this defense. (Ap-

pendix B, infra, App. 12). A prosecution witness testified

falsely that this receipt was not in existence as of the date

it was alleged to have been prepared. In a motion for a

new trial based upon newly discovered evidence, Petitioner

demonstrated that this witness had testified falsely in

this respect.

Petitioner’s conviction was therefore tainted by false

testimony. This Court has previously indicated that such

a conviction may not stand. In Mesarosh v. United States,

352 U.S. 1 (1956), a government witness had testified

falsely as to a matter vital to the defense. The government

conceded that the witness had testified falsely in other pro-

ceedings, and moved to remand the case from the Supreme

Court for a hearing on the truthfulness of his testimony

against the defendant. This Court denied the motion, re-

versed the conviction, and remanded for a new trial. The

Court said:

“‘The dignity of the United States Government will

not permit the conviction of any person on tainted

be no other just result than to accord petitioners

new trial.’’ 352 U.S. 1 at 9.

“*This is a federal criminal case and this Court has

supervisory jurisdiction over the proceedings of the

Federal Courts. If it has any duty to perform in this

regard it has to see that the waters of justice are not

polluted. Pollution having taken place here, the con-

viction should be remedied at the earliest oppor-

tunity.’ 352 U.S. 1 at 14.

Other authorities have similarly recognized that a federal

criminal conviction tainted by false testimony is intolerable.

Thus Moore has said:

but it should have none where the court acts under

Rule 33 or in the exercise of its supervisory powers,

as in the Mesarosh case. It must be remembered that

the power conferred upon the court to grant a new

trial for newly discovered evidence is simply a means

to protect the integrity of the fact-finding process and

to insure a fair trial for the accused, and its exercise

is in no way predicated upon finding a violation of

constitutional dimension.’’ Moore, Federal Practice,

33.06 (2d ed. 1970)

PAGES MISSING

15

manufactured evidence, by ordering an investigation of

Petitioner’s attorneys, Martin Ashman and Bernard Brody.

The Judge said,

“I am going to direct the United States Attorney in

this case to make a complete investigation dealing not

only with the defendant but also with the defendant’s

attorneys to determine the circumstances under which

* * * Exhibits 11 through 17 were prepared, and I

wish to have you present that request to Mr. Foran

as a personal request from the Court to make a com-

plete and thorough investigation and I would like that

matter reported back home.’ (Tr. 477)

The effect of the false testimony on Petitioner’s sentence

is further illustrated by the statement of the Assistant

United States Attorney, made in aggravation immediately

prior to the imposition of sentence:

“IT might also add * * * certain documents were pro-

duced that were ultimately proven to be absolutely

phony documents used to further confuse the situation

and cover up, that really shows the intent of this par-

ticular man to do this and on the motion to suppress,

while it is not relevant to the trial, or in the trial, he

said that these documents were made in the regular

and ordinary course of his business. Again, this was

totally false.’’ (Tr. 482)

In Townsend v. Burke, 334 U.S. 736 (1948), the Court

held that where a sentence was imposed upon an inaccurate

presentence investigation report, the defendant had been

denied due process of law. In United States v. Tucker, 92

S.Ct. 589 (1972), the Court held that the possibility that a

court would have imposed a less stringent sentence, had it

been aware that two of three prior felony convictions of

the defendant were invalid, required a remand for re-

sentencing. We ask this Court to consider whether, con-

16

sonant with these prior decisions, a sentence may stand

where false testimony that the defendant had manufactured

evidenced influenced the severity of that sentence.

I.

The government’s knowing use of false testimony on ap-

peal denied Petitioner due process of law.

At trial, the government was unaware that Robert Burns

testified falsely that Government’s Exhibit 15 was from a

printing of warehouse receipts which was not in existence

when Petitioner received the television sets. While Peti-

tioner’s appeal from that conviction was pending however,

the government was advised that Burns had testified false-

ly, and shown proof that Government’s Exhibit 15 had not

come from the second printing of warehouse receipts as

he had testified. During the course of the perjury trial

of Muriel Osten, the government admitted that Burns was

mistaken in this regard. (Osten Tr. 25). Subsequent

to this admission, however, in a brief filed in the Court of

Appeals seeking affirmance of the Petitioner’s conviction,

the government stated:

‘*We contend that Robert Burns was qualified as an

expert to compare and give his opinion as to the

printings of various warehouse forms in question, and

also to the fact that Government Exhibit 15 was not

from the first printing in 1968, but by the process of

elimination had to be from the second printing in Oc-

tober, 1969.’ (Brief for Appellee, United States v.

Becker, p. 35)

After the Petitioner had filed his motion for a new trial

the government did admit, in briefs filed in opposition, that

Burns was wrong in testifying that Government’s Exhibit

15 had come from the October, 1969 printing of warehouse

17

forms. Yet prior to the filing of a brief asserting the cor-

rectness of that testimony, the government was shown,

and in fact did acknowledge, proof of its falsity. We sub-

mit that this conduct falls squarely within the rule of

Napue v. Illinois, 360 U.S. 264 (1959).

Conclusion

For the foregoing reasons, Petitioner respectfully sub-

mits that the petition for certiorari should be granted.

Respectfully submitted,

Cuaries A. BeLLows,

Attorney for Petitioner

Jason E. BetLows

Ronatp N. Herrman

On the Brief

App. 3

had been consigned to him by a Standard Distributing

_ Company, and that he had been given authority to sell the

_ TV sets with net proceeds to be sent to Standard.

There was ample testimony from which the jury could

infer that Becker had not previously stored new TV sets

in his warehouse; that he was not an authorized Sears

dealer; that he received and warehoused the stolen TV

sets on or about September 12, 1969; that he did not send

a copy of the warehouse receipt of the TV sets to Standard,

although it was customary to send copies to shippers; that

shortly after receiving the stolen TV sets he was selling

them at prices suspiciously below cost; and that he sold

the stolen TV sets COD-cash only, and gave no receipt to

the buyer although it was normal to do so.

Mrs. Osten, Becker’s secretary for eleven years, testified?

that the shipment of the new Sears TV sets from which

Becker made subsequent sales arrived at the warehouse on

or about September 12, 1969, and that the shipment was

from the Standard Distributing Company. She also testi-

fied that although she made out a warehouse receipt to

Standard dated September 12, 1969 (Exhibit 15), she sent

to Standard neither a receipt for the shipment nor the net

proceeds of the sales, although it was normal practice to

do so. Mrs. Osten said that the reason for this was that

she knew neither the name of the person who arranged for

the warehousing of the TV sets nor the address of Standard

to which she could send a receipt for the goods.

Mrs. Osten’s testimony generally was vague, confused

and confusing. The jury could well consider incredible

her testimony that she did not know where to send the pro-

* Mrs. Osten first testified as a witness for the government, and

later testified in defense of Becker.

App. 4

ceeds from or the receipts for the TV sets — especially

in view of the aggregate value of the shipment, approxi-

mating $40,000. And her testimony with respect to a

bill of lading dated September 16, 1969, covering sales from

the stolen shipment, is virtually incomprehensible. Clearly

she equivocated in her testimony that bore upon Becker's

scienter, especially with respect to the shipment from

Standard, and as to when she typed the warehouse receipt

for the stolen sets.

The government, to offset Mrs. Osten’s testimony that

she had typed a receipt for the TV sets dated September

12, 1969 (Exhibit 15), called as its witness Burns, a printer

of warehouse receipt forms and expert on the subject.

Burns testified that upon order from Becker he had twice

printed forms for World Wide Warehouse, Inc — once in

1968 and again in the fall of 1969. He also testified that

the receipt form (Exhibit 15) typed by Mrs. Osten and

dated September 12, 1969 could not have existed* on Sep

tember 12, 1969, since it was from the second printing

order, which had not been delivered to Becker’s warehonse

until October of 1969.

We think that the foregoing testimony was sufficient

prima facie for an inference that Standard was a fictional

company, that Becker did not receive the shipment of the

TV sets in the regular course of business, and that he

knew that the TV sets which he received and sold were

stolen.

Becker’s defense consisted of testimony of two cus-

tomers that in their dealing with World Wide Warehouse,

* Burns examined and compared Exhibit 15 (receipt dated Septem-

ber 12, 1969) with Exhibit 45 (receipt of the first printing order).

He testified that Exhibit 15 could not have been from the first

printing order since it failed to “align” completely with Exhibit 45.

— eal _— =

. aw

App. 5

the merchandise they stored would be sold, with their con-

sent, and that the net proceeds of the sales would be sent

to them. Mrs. Osten testified in defense also. Her testi-

mony was of the same vague and confusing character that

marked her testimony for the government on direct and

on cross-examination.*‘ The jury was justified in believing

beyond a reasonable doubt that Standard Distributing Com-

pany was fictional, was not in existence at the time Becker

received the sets, and that Mrs. Osten was equivocating

to protect Becker. The inference of Becker’s scienter

could reasonably follow. We conclude that there is no

merit in Becker’s contention that his guilty knowledge

was not proven beyond a reasonable doubt.

We see no merit in Becker’s contention that the testi-

mony of Pearlstein, the buyer of Sears TV sets from

Becker, was not connected to the stolen Sears shipment.

Pearlstein testified that the sets he purchased from Becker

on September 16 and 17 were new, and that he had never

seen a new Sears TV set, or a Sears TV carton, at Becker’s

before. Moreover, he testified that the TV sets which he

purchased were in the same type boxes as those shown in

the stipulation. Clearly his testimony made the connection.

Next Becker claims that witness Burns was not qualified

as an expert to testify that the incriminating warehouse

receipt (Exhibit 15), supposedly typed by Mrs. Osten on

September 12, 1969, had to be from the second printing

*The district court judge suspected the testimony of Mrs. Osten.

He characterized her as, inter alia, a “very equivocal witness with a

convenient memory.” At the trial he directed the district attorney to

the hearing of the new trial motion, Mrs. Osten was indicted for

perjury in her testimony at the trial. She was found guilty on three

counts at a bench trial after entering a plea of nolo contendere, and

fined $1,000.00 on each count.

App. 6

of warehouse forms which were only delivered to Becker’s

warehouse in October, 1969.

The claim is frivolous. Burns had been in the business

of printing warehouse forms for 24 years. His firm was

official printer for two leading warehousemen associations

in the country. His testimony showed that he was fully

qualified to identify the pertinent receipt as he did.

We have read the portions of the transcript relied upon

by Becker in his contention that the trial judge, by inter-

rogation of witnesses and comments to defense counsel,

prejudiced the trial. We cannot agree that any prejudice

to Becker was likely to result from the interrogation or

comments or both.

Finally, we see no basis for reversal of the conviction

because of any claimed errors in the conduct of the dis-

trict attorney, or in the instructions to the jury, as to

which there was no objection at the trial.

PART IL.

Becker based his motion for new trial on ‘‘newly dis-

covered evidence’’ and supported the motion with his own

affidavit as well as that of document expert Doud. Together

the affidavits effectually claimed 1) that the ‘‘fabrication”

of Exhibit 15 was a ‘‘crucial’’ issue at the trial; 2) that

Becker was surprised and unable to meet the Burns testi-

mony on that issue; 3) that after the trial Burns admitted

he might have been mistaken whether Exhibit 15 came

from the second printing of warehouse forms; that it was

Doud’s expert opinion that Exhibit 15 did not belong to

the second printing; 4) that Becker had shown diligence

in discovering the new evidence; and 5) that a new trial

would most likely result in an acquittal of Becker. After

a hearing, the judge who presided at the Becker trial

denied the new trial motion and filed a written opinion.

App. 7

The opinion recites the trial testimony of Burns that

Exhibit 15 was from a second printing of forms. The

opinion also notes the affidavit of Doud which tended to

corroborate the statement of Burns that he may have mis-

taken as to when the warehouse receipt dated September

12 was printed.

The judge applied this court’s decision in Larrison v.

surprised by, and unable to meet, at the trial, the Burns

testimony; and did not show that without that testimony

the jury ‘‘might’’ have reached a different conclusion. The

judge thought it unnecessary to consider the third require-

ment of Larrison, t.e., whether the testimony of Burns was

shown to be false.

It is conceded by Becker that the judge properly applied

Larrison. He argues that the judge erred in concluding

that Becker failed to meet two of the three Larrison re-

quirements.

We find no merit in Becker’s contention. Fis affidavit,

proffered to show the element of surprise and inability

to meet the Burns testimony, did not compel the district

judge to decide either that Becker was surprised or un-

able to meet the testimony of Burns at the trial. The

testimony of Mrs. Osten was material at the trial since

she was the only witness who gave testimony which could

have precluded a finding of scienter in Becker’s posses-

sion of the stolen TV sets. Her testimony that the TV

* See also United States v. Higgins, 412 F.2d 789, 790 (7th Cir.

1969).

App. 8

sets were received in the ordinary course of business was

critical for Becker. The Burns testimony effectually over.

came Mrs. Osten’s testimony. Becker’s attorney cross-

examined Burns, but did not touch upon Burns’ testimony

with respect to identifying Exhibit 15. Despite argument

in Becker’s supplemental brief to the contrary, the record

shows that Becker’s attorney did not ask for a continuance

for the purpose of meeting the testimony of Burns.

It is true that before cross-examining Burns the defense

attorney stated that he needed ‘‘some time to study some-

thing here’”’ and that he could not cross-examine without

time to ‘‘study this.’’ The court said the attorney could

‘‘look at them right now.’’ The attorney said ‘‘ All right,”

and asked for the ‘‘exhibits.’’ He then proceeded to cross-

examine.

At the end of the testimony, the day before the court

instructed the jury, the court inquired of Becker’s attorney

whether he had any defense witnesses other than the three

who testified. The atterney made no mention of any witness

to controvert the testimony of Burns. The judge at the

new trial hearing could well have decided that the ‘*newly

discovered’? evidence did not show diligence because Becker

did not seek time to find an expert like Doud to give an

opinion contrary to Burns — as Doud does in his affidavit.

Becker argues that it is ‘‘incomprehensible’? how any-

one could be anything but surprised at the Burns “false”

testimony. This argument implies knowledge of falsity at

the trial and is additional support for the judge’s view

that no showing is made of diligence in challenging effec-

tively that ‘‘false’’ testimony.

The judge determined that another jury would come to

the same conclusion at a second trial ‘‘regardless’’ of the

* We note also that Becker waited more than 15 months after the

trial before filing his motion of “newly discovered” evidence.

App. 9

truth or falsity of the Burns testimony. The record sup-

ports the finding of the judge that the evidence, putting

aside Mrs. Osten’s testimony, is ‘*overwhelming’’ and that

at the second trial Becker would be “‘deprived’’ of her

testimony. We take ‘‘deprived”’ to mean that it was quite

unlikely, in view of her conviction of perjury with respect

to her testimony at the Becker trial, that she would be

ealled, since, in the circumstances, her testimony would be

of little effect in aid of Becker. Furthermore, Doud’s

affidavit does not ‘‘show[s] conclusively’’ that Exhibit 15

came from the first printing of warehouse receipt forms

in 1968. His affidavit merely expresses his opinion, and

Burns admittedly adheres to his contrary opinion. And the

transcript of evidence of the Osten perjury proceedings

shows the availability of government testimony to corrobo-

rate the Burns’ opinion.

Finally, we see no merit in Becker’s claim that his right

to due process was violated by the government’s knowing

use of false testimony at the trial. We shall assume, but

not decide, that the Burns’ testimony was mistaken. The

claim nevertheless has no merit. The record is devoid of

anything to show that the government had knowledge,

before calling Burns to testify, that he would make the

mistake he made in his testimony at the trial.

For the reasons given, we conclude that the district court

judge did not abuse his discretion in denying Becker’s

motion for a new trial.

The judgment of conviction is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

App. 10

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Untrep Srares or America,

Plaintiff-A ppellee,

-Va.-

Davip Gatvis Becxzr,

Defendant-A ppellant.

No. 70- CR -46

MEMORANDUM OPINION

This is a motion for a new trial based upon newly

discovered evidence made by David Becker pursuant to

Rule 33 F.R.Crim.P. It is based upon the following facts.

Becker was convicted of knowingly possessing goods

which were stolen from interstate commerce in violation

of 18 U.S.C. §659. At the jury trial on this cause, the

defendant did not dispute the fact that the television sets

which were stored in his warehouse were stolen. Rather,

his plea of not guilty was designed ta compel the govern-

ment to sustain its burden of proof with regard to the

issue of whether the defendant knew that the goods were

stolen.

The government sought to carry mis burden by pre

senting two lines of proof. The first consisted of evidence

that the defendant had sold two of the stolen television sets

to one Howard Pearlstein. This transaction was a cash

sale at a price well below the current market value of the

sets. The other line of proof was designed to refute the

‘App. 11

defendant’s story that the sets in question were received

by him in the normal course of his business from a man

who he had never even heard of before and who left the

$40,000 worth of goods without signing his name or getting

his receipt. The main basis for this story was the testimony

of one Muriel Osten. She testified to the effect that she had

talked to a man from Standard Distributing Company

about the goods in question and had later prepared a ware-

house receipt purporting to show receipt of the stolen sets

by World Wide Warehouse, Inc., a corporation owned and

operated by the defendant. Miss Osten was subsequently

convicted of perjury on the basis of this testimony. Aside

from its cross-examination of Miss Osten, the government

also placed a Mr. Robert Burns, a manufacturer of ware-

house receipts, on the stand, in an effort to refute the

Osten testimony. Defendant bases his present motion upon

that testimony.

Mr. Burns testified to the effect that the warehouse

receipt which represented the stolen sets was not printed

until after it was alleged by the defendant to have been

prepared. Subsequent to Mr. Becker’s trial, during the

preparation for the Osten perjury trial, Mr. Burns stated

that he may have been mistaken about exactly when the

document in question was printed. In addition, the defen-

vant has produced a printing expert whose affidavit tends

to show that Mr. Burns was mistaken. It should be pointed

out, however, that neither side can prove whether the ware-

house receipt in question was printed before or after it

was allegedly prepared. It is on this slender thread that

the defendant rests his motion for a new trial.

It is well established that motions for a new trial are

not favored by the courts and are viewed with great cau-

tion. See e.g.. U. S. v. Gleason, 411 F.2d 1091 (10th Cir.

App. 12

1969). Further, it is clear that in order for a motion for

a new trial on the basis of newly discovered evidence to

be granted, the movant must show (1) that the evidence

is newly discovered and was unknown to the defendant at

the time of trial, (2) that the evidence is material, not

merely cumulative or impeaching, (3) that it will probably

produce an acquittal, and (4) that failure to learn of the

evidence was due to no lack of diligence on the part of the

defendant. Barron, Federal Practice and Procedure, Vol.

4, §2282, at p. 284, and the numerous cases cited therein.

However, it is the rule in this Circuit that even if the

evidence at issue is merely impeaching, as it was in this

case, a new trial should be granted if the movant reason-

ably satisfies the court (1) that the testimony given by a

material witness is false, (2) that the party seeking the

new trial was taken by surprise when the false testimony

was given and was unable to meet it, or did not know of

its falsity until after trial, and (3) that without it, the

jury might have reached a different conclusion. Larrison

v. U. S., 24 F.2d 82 (7th Cir. 1928), and U. S. v. Higgins,

412 F.2d 789 (7th Cir. 1969).

In the case at bar, the defendant cannot meet the require-

ments of the Larrison rule because, leaving aside the seri-

ous problem of whether the testimony of Mr. Burns has

been shown to be false, it is plain that the other two re-

quirements have not been met. Since proving the existence

of the warehouse receipt was a crucial aspect of his case,

the defendant could not argue that he realized the alleged

falsity of the statement after the time of trial. Further,

since it was such an integral facet of his case, it is difficult

to believe that the defendant was taken by surprise when

the testimony was given or that he was unable to meet it.

Finally, it should be noted that most of the defendant’s

App. 13

arguments in this regard go toward showing that the testi-

mony was false and there is little but a few self-serving

conclusory statements to show that the defendant was ac-

tually ‘‘surprised’’. Accordingly, the defendant has not

met his burden in this respect.

In addition, I am of the opinion that another jury would

come to the same conclusion regardless of the truth or

falsity of the Burn’s testimony. It is beyond belief that a

jury which had before it the evidence of the cash sale of

such stolen goods at bargain prices could believe that

Becker received the $40,000 worth of goods from an un-

known man who did not sign his name or get a receipt

even though that was Becker’s business practice. Further,

at any new trial, the defendant would be deprived of some

or all of the testimony of Muriel Osten. Finally, it is

clear now, just as it was clear at the time of the trial, that

the evidence presented by the prosecution overwhelmingly

proves beyond any doubt whatsoever that the defendant

was guilty as charged.

In light of the foregoing, the defendant’s motion for a

new trial based upon newly discovered evidence is hereby

denied.

ENTER:

/8/ Bernard Decker

United States District Judge.

DATED: October 8, 1971.

App. 14

APPENDIX ©

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

July 13, 1972

Before

How. Luruer M. Swyczrr, Chief Judge

Hon, Joun S. Hastines, Senior Circuit Judge

Hon. Roczr J. Kuzy, Circuit Judge

Unirep States or AmEnica,

Plaintiff-Appellee,

No. 18659 vs.

Davi Gatvin Becker,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Illinois, Eastern Division, and was argued

by counsel,

On consideration whereof, it is ordered and adjudged by

this court that the judgment of conviction of the said Dis-

trict Court in this cause appealed from be, and the same is

hereby, AFFIRMED, in accordance with the opinion of

this Court filed this day.

App. 15

APPENDIX D

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 4, 1972

Before

Hon. Roczr J. Krzy, Circuit Judge

Unirep States or AMERica,

Plaintiff-A ppellee,

No. 18659

Davi Gavin Brecker,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 70- CR - 46

On consideration of the petition for rehearing filed in the

above-entitled cause,

IT IS HEREBY ORDERED that the petition for re-

hearing in the above-entitled appeal be and the same is

hereby DENIED.

App. 16

APPENDIX E

EMBEZZLEMENT AND THEFT

§ 659. Interstate or foreign baggage, express or freight;

State prosecutions

Whoever embezzles, steals, or unlawfully takes, carries

away, or conceals, or by fraud or deception obtains from

any railroad car, wagon, motortruck, or other vehicle, or

from any station, station house, platform or depot or from

any steamboat, vessel, or wharf, or from any aircraft, air

terminal, airport, aircraft terminal or air navigation fa-

cility with intent to convert to his own use any goods or

chattels moving as or which are a part of or which consti-

tute an interstate or foreign shipment of freight or ex-

press; or

Whoever buys or receives or has in his possession any

such goods or chattels, knowing the same to have been

embezzled or stolen; or

Whoever embezzles, steals, or unlawfully takes, carries

away, or by fraud or deception obtains with intent to con-

vert to his own use any baggage which shall have come

into the possession of any common carrier for transporta-

tion in interstate or foreign commerce or breaks into, steals,

takes, carries away, or conceals any of the contents of

such baggage, or buys, receives, or has in his possession

any such baggage or any article therefrom of whatever

nature, knowing the same to have been embezzled or stolen;

or

Whoever embezzles, steals, or unlawfully takes by any

fraudulent device, scheme, or game, from any railroad car,

bus, vehicle, steamboat, vessel, or aircraft operated by

any common carrier moving in interstate or foreign con-

merce or from any passenger thereon any money, baggage,

App. 17

goods, or chattels, or whoever buys, receives, or has in his

possession any such money, baggage, goods, or chattels,

knowing the same to have been embezzled or stolen —

Shall in each case be fined not more than $5,000 or im-

prisoned not more than ten years, or both; but if the

amount or value of such money, baggage, goods or chattels

does not exceed $100, he shall be fined not more than $1,000

or imprisoned not more than one year, or both.

The offense shall be deemed to have been committed not

only in the district where the violation first occurred, but

also in any district in which the defendant may have taken

or been in possession of the said money, baggage, goods,

The carrying or transporting of any such money, freight,

express, baggage, goods, or chattels in interstate or foreign

commerce, knowing the same to have been stolen, shall con-

stitute a separate offense and subject the offender to the

penalties under this section for unlawful taking, and the

offense shall be deemed to have been committed in any dis-

trict into which such money, freight, express, baggage,

goods, or chattels shall have been removed or into which

the same shall have been brought by such offender.

To establish the interstate or foreign commerce character

of any shipment in any prosecution under this section the

waybill or other shipping document of such shipment shall

be prima facie evidence of the place from which and to

which such shipment was made.

A judgment of conviction or acquittal on the merits

under the laws of any State shall be a bar to any prosecu-

tion under this section for the same act or acts. June 25,

1948, c. 645, 62 Stat. 729; May 24, 1949, c. 139, § 13, 63

Stat. 91.