Petition for Writ of Certiorari — Kaiser v. United States

TABLE OF CONTENTS

Opening Statement

Opinions Below

Jurisdiction

Question Presented

Constitutional, Statutory

and Rules Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

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INDEX

Cases

Boyd v. United States 142

U.S. 450.

Helton v. United States 221 F.

24 338 (5th Cir. 1955).

Holt v. United States 94 F. 2d

90 (10th Cir. 1937).

Kotteakos v. United States 328

U.S. 750, 66 S. Ct. 1239.

Marshall v. United States 360

U.S. 310, 79 S. Ct. 1171, 3L.

Ed. 24 1250 (1959).

McIntosh v. United States 309

F. 2d 222 (D.C. Cir. 1962).

Michelson v. United States 335

U.S. 469, 93 L. Ed. 168, 69

& &&. 313.

Mora v. United States, 190 F.

2d 749 (5th Cir. 1951).

Odom v. United States 377 F.

2d 853) 5th Cir. 1967).

Throckmorton v. Holt, 180 U.S.

552, 21 S. Ct. 474, 45 L. Ed.

663 (1901).

United States v. Clarke, 343F.

2d 90 (3rd Cir. 1965).

_ United States v. Jacangelo, 281

F. 24 574 (3rd Cir. 1960).

20

14, 17, 19, 24

22

22

oS, 20, 13, 24,

and 17

14, 15

ll

22

15, 23, 24

22

21

INDE X

Cases

(Continued)

United States v. Rinaldi,

301 F. 2d 576.

United States v. Stromberg,

268 F. 2d 256 (2nd Cir. 1959).

United States v. Tomaiolo, 249

F. 2d 683 (2nd Cir. 1958).

CONSTITUTION, STATUTES, AND RULES

Rule 26, 18 U.S.C.A. p. 202,

Federal Rules of Criminal Pro-

cedure.

Rule 52(a) and (b), 18 U.S.C.A.,

p. 399, Federal Rules of Crimi-

nal Procedure.

Section 3481, Title 18, U.S.C.A.,

p. 488.

U.S.C.A. Constitutional Amend-

ment Five, p. 4.

ii

14

17

5, 17, 20

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IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 197

LINDEN ODELL KAISER

Petitioner

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BREWER AND PRICE, INC.

1711 W. Irving Blvd.

Suite 200

Irving, Texas 75061

BY: JAMES E. PRICE

Attorneys for Petitioner

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IN THE SUPREME COURT OF THE UNITED STATES

TERM, 197 __

NO.

LINDEN ODELL KAISER, Petitioner

v. UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

LINDEN ODELL KAISER, your Petitioner and

pellant, prays that a writ of certiorari

ssue to review the judgment of the United

tates Court of Appeals for the Seventh Circuit,

tered in the above-entitled cause on April 30,

3, which judgment affirmed Petitioner's con-

ction in the United States District Court for

e Eastern District of Illinois on three counts |

an indictment charging him with (1) theft

an interstate shipment and aiding and :

tting the same (18 U.S.C. §§ 659, 2), (2)

eiving and concealing a stolen motor vehicle

(aiding and abetting same (18 U.S.C. §§ 2313, 2)

(3) conspiracy to commit theft from an

rstate shipment (U.S.C. §§ 371).

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PEERED TT FI eS OT I ME Ne NL PI NE NTR IEE RATS SPE TT EON MASE Noe MT NT NT RL

OPINIONS BELOW

There was no formal opinion in the United

states District Court for the Eastern District

of Illinois wherein the Petitioner was convicted.

the opinion of the Court of Appeals for the

seventh Circuit has not yet been officially

reported. It is reproduced in Appendix A to

this Petition. Petitioner timely filed a motion

for rehearing in the appeals court, and said

notion for rehearing was denied by an order

dated May 31, 1973. Said order is reproduced

in Appendix A to this petition.

JURISDICTION

The opinion of the United States Court of

Appeals for the Seventh Circuit affirming Defen-

dant's conviction and ten year sentence as to

Count (1), five year sentence as to Count (2),

and five year sentence to Count (3) sentences to

tun concurrently in the United States District

Court for the Eastern District of Illinois was

sntered on April 30, 1973. As aforesaid, a

timely filed petition for rehearing was denied

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by order of the Court of Appeals, dated May 31,

1973. The jurisdiction of the Supreme Court

is invoked under 28 U.S. Code, 1254(1) and

under Rule 19, Supreme Court Rules, because

the opinion of the Court of Appeals decided an

important constitutional issue in a way in con-

flict with applicable decisions of the Supreme

Court of the United States, and the appeals

court decision conflicts with decisions of

the courts of appeals for other circuits, par-

ticularly decisions from the Second, Third and

Fifth Circuits.

QUESTIONS PRESENTED

Whether the trial court erred in over-

ruling the Petitioner's motion for mistrial

duly made, directed to inadmissible and highly

prejudicial testimony given by a government

witness in answer to a question propounded to

him by the United States Attorney, wherein the

jury was informed that the Petitioner had a

prior felony record, such evidence being

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admissible for impeachment purposes only and

for that purpose only if the Petitioner testi-

fied in his own behalf, which Petitioner did

not do; and whether the Court of Appeals

committed error requiring reversal in affirm-

ing the action of the trial judge.

CONSTITUTIONAL, STATUTORY AND RULES

PROVISIONS INVOLVED

The following Constitutional Amendment,

Statutes and Rules are material to this appeal.

Fifth Amendment U.S.C.A. Const. Amend. 5, p 4

No person shall be held to answer for a

capital or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising

in the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

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criminal case to be a witness against him-

self, nor be deprived of life, liberty,

or property, without due process of law;

nor shall private property be taken for

public use, without just compensation.

Rule 52(a) and (b), 18 U.S.C.A. P. 399, Federal

Rules of Criminal Procedure, is quoted verbatim,

to-wit:

In all trials the testimony of witnesses

shall be taken orally in open court, unless

otherwise provided by an act of Congress or by

these rules. The admissibility of evidence

and the competency and privileges of witnesses

shall be governed, except when an act of Con-

gress or these rules otherwise provide, by the

principles of the common law as they may be

interpreted by the courts of the United States

in the light of reason and experience.

Section 3481, Title 18, U.S.C.A. P. 488 per-

taining to the competency of the accused to be

awitness in his own behalf and his right to

;

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elect not to testify reads as follows, to-wit:

§3481. Competency of accused

In trial of all persons charged with the

commission of offenses against the United

States and in all proceedings in courts

martial and courts of inquiry in any

State, District, Possession, or Territory,

the person charged shall, at his own

request, be a competent witness. His

failure to make such a request shall not

create any presumption against him.

STATEMENT OF THE CASE

That, in the trial of this case, during

the direct testimony of John Bruce Gould, a

government witness, said witness in answer to

a question propounded to him by the Prosecutor,

made known to the jury that the Defendant and

Petitioner herein, Linden Odell Kaiser, had a

prior felony criminal record by referring to

him in language that included the word "con",

making it unmistakably clear that the Petitioner

had a prior felony record. The entire sequence

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of the testimony appears on pages 171 and 172

of the transcript and is quoted verbatim as

follows:

Q: When you first met Mr. Kaiser, Mr.

Gould, did he ask you if you had

served any time?

A: Not in so many words. It's--it's

something that would be extremely

hard for the average layman to under-

stand, a person that has been in the

penitentiary--

MR. MAYER: Well, I am going to object, Your

Honor, to -- that isn't answering

the question.

WITNESS: I was trying to, sir, in my own way.

MR. HESS: Well, perhaps, counsel, if I re-

phrased it, we can build up to it.

(To Witness) How did the -- the sub-

ject of your record come up in the

conversation?

A. I -- in talking to Mr. Kaiser, there

are certain inflections, a certain

phraseology, vernacular, words that

a con would use that is understand-

able by another con. It's--it's a

way that you --

MR. BREWER: Now, I'm going to object, Your

Honor.

THE COURT: Sustained. The last portion will

be stricken, the jury instructed to

disregard same.

MR. BREWER: Ask the Court for a mistrial.

THE COURT: Overruled.

MR. BREWER: Exception.

THE COURT: Proceed.

It is significant that the error complained

of occurred during direct examination of a

government witness by the government attorney,

and the Defendant Kaiser nor any of the other

Defendants can be charged with inviting the

error. At no time during the trial did the

Defendant Kaiser take the witness stand on his

own behalf. The Government did not contend

during the trial that evidence of Kaiser's

prior criminal record was admissible for any

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purpose under any theory. No exceptions exist

in this case to the general rule that evidence

of a prior criminal record is not admissible

against one who does not testify in his own

behalf.

The inadmissibility of Kaiser's prior

criminal record is not in issue in this appeal,

for the trial judge appreciated its prejudicial

and inflammatory nature and sustained objec-

tions made thereto and instructed the jury to

disregard same. It is the Petitioner's con-

tention that the extreme and inflammatory

nature of the improper testimony was such that

it could not be cured by the Court's instruc-

tions, and this position is strongly supported

by numerous well-thought-out and reasoned

appellate decisions, including decisions of

the Supreme Court.

REASONS FOR GRANTING THE WRIT

In Marshall v. United States, 360 U.S.

310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959)

this court established a building principle

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for the type of error complained of in this

application for certiorari and reversed a

conviction on the ground that jurors read a

newspaper account of acts and the reputation

of the accused. As in Kaiser's case, the

accused in Marshall never took the stand. The

trial judge, when he learned what had occurred,

summoned the jurors into his chambers and, one

by one, inquired of them whether they had seen

the articles. The trial judge was told by

each juror who had seen the articles that he

would not be influenced by the news articles,

that he could decide the case on only the

evidence of record, and that he felt no preju-

dice against Petitioner as a result of the

articles. The trial judge felt there was no

prejudice and denied a motion for mistrial.

The Supreme Court noted that the articles men-

tioned prior convictions that the trial court

had found to be prejudicial and inadmissible

and commented as follows:

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"The prejudice to the defendant is al-

most certain to be as great when that

evidence reaches the jury through news

accounts as when it is a part of the

Prosecution's evidence. (Cf. Michelson

v. United States 335 U.S. 469, 475, 93

L. Ed. 168, 173, 69 S. Ct. 213.)"

The court in Marshall attempted to make

no subtle distinction as to the source (whether

from newsprint or witness stand) of the cancer

affecting substantial rights, and the various

Federal Circuits should follow this court's

exemplary precedent. The Seventh Circuit in

this case has failed to follow the principles

and guidelines set forth in the Marshall

decision, and the opinion of the Seventh Cir-

cuit herein sought to be reversed erodes away

at the foundation and quality of the adminis-

tration of criminal justice in our land because

the error complained of effectively destroyed

Petitioner's Fifth Amendment right.

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The failure of an appellate court to re-

yerse a conviction in the face of an error of

such fundamental magnitude creates an atmosphere

that suggests to prosecutors that our appellate

courts will tolerate and allow the improper

admission of evidence of an accused's prior

criminal record, and the opinion even encourages

the practice of admitting such evidence, be-

cause the court of appeals by its refusal to

reverse has chosen to salvage an improper con-

viction which is at least partially based upon

admittedly inadmissible and highly prejudicial

aaa by tenaciously clinging to the legal

fiction that so grave an error can be cured by

instruction to the jury, when the fact is that

such an instruction simply cannot cure such an

error. Opinions such as the one here sought to

be reversed will make federal criminal trials

vulnerable to a Pandora's box full of such

errors in the future.

The emphasis in the opinion of the court

of appeals regarding whether or not the

OED EDS

complained of testimony was intentionally or

yuintentionally elicited by the government

seems completely misplaced. The question is

vhether or not prejudicial error occurred and

whether the Petitioner was irreparably harmed

or potentially could have been so harmed. In

Marshall it was not contended by the Petitioner-

Appellant that the government allowed the news-

paper articles in the jury room intentionally.

The occurrence in that case was undoubtedly

against the government's express desires, but

the newspaper article got into the jury room,

error occurred, prejudice resulted, and reversal

followed. This court's Marshall decision did not

rest on any theory that gave weight to whether

or not the error was caused by conscious action

on the part of the government. Such a test is

completely unrealistic, for it is subjective in

nature and the Petitioner's burden of proof

would be next to impossible.

The opinion sought to be reversed is in

direct conflict with decisions from the Second,

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third and Fifth Circuits. The opinions from

the various circuits demonstrate an obvious

conflict in basic philosophy and approach

directed to the particular constitutional issue

involved; and these differences cannot be

rationally explained away through a case-by-

case analysis. Petitioner's attorney feels un-

questionably that there exists a conflict of

substance between the various circuits that

should be resolved by the United States Supreme

Court.

Petitioner's attorney on appeal cannot

understand how the Court of Appeals could con-

clude that McIntosh v. United States, 309 F. 2d

222 (D.C. Cir. 1962) and United States v. Strom-

berg 268 F. 2d 256 (2nd Cir., 1959) are on point

and provide more helpful guidance than cases

much more on point, such as Marshall v. United

States, 360 U.S. 310; United States v. Rinaldi,

301 F. 24 576, (2nd Cir. 1962); Helton v. United

States, 221 F. 2a 338 (5th Cir., 1955); United

states Vv. Clarke, 343 F. 2d 90 (3rd Cir., 1965)

and Odom v. United States, 377 F. 2d 853 (5th

cir., 1967). The Court of Appeals, in its

opinion dated April 30, 1973, stated, after

referring to McIntosh and Stromberg as being

authoritative that, "in each of these cases

there were references to prior convictions of

defendants." This statement is not factual and

leads me to believe that the cases before the

Court were not carefully analyzed.

In the Stromberg case a witness on cross-

examination referred to the Defendant as being

"in jail". In the McIntosh case a government

witness referred to another person who had

questioned the Petitioner after his arrest as

“the parole officer". In McIntosh, appellee

admits in its brief that the witness did not

explicitely state that it was the Defendant's

parole officer who was the interrogator. The

alleged errors in McIntosh and Stromberg are

hardly comparacle to the error that occurred

in this case.

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fn United States v. Rinaldi, 301 F 2d

576 (2nd Cir., 1962), a case very much on

point, the Defendant, as in this case, did not

take the witness stand; his credibility, there-

fore, is not open to attack. See United States

y. Tomaiolo, 249 F. 2d 683 (2nd Cir., 1958).

Rinaldi's wife testified on direct examination

regarding his whereabouts on a certain date in

an apparent effort to contradict government

testimony as to a conference (relative to con-

spiracy count) he had reportedly attended on

that date. On cross-examination, the following

occurred, to-wit:

Q: Has your husband ever been convicted of

a crime?

A: Yes.

Defendant's attorney immediately moved

for a mistrial. The Court denied the motion

for mistrial and instructed the jury that

they must not consider_the question or

answer. The Court's instruction was lengthy

and thorough and appears on page 578 of

the opinion. The opinion of the

PNT CRAIN ests IF MaRS Pe DAR UES

second Circuit, in part, reads as follows, to-

wit:

"Improper introduction of evidence of a

Defendant's past criminal record is ground

for a new trial. Cautionary instructions

will not cure the error." Marshall v.

United States 360 U.S. 310, 79 S. Ct.

1171, 3 L. Ed. 2d 1250 (1959); United

States v. Tomaiolo, 249 F., 2d 683 (2nd

Cir., 1958); United States v. Jacangelo,

281 F. 2d 574 (3rd Cir., 1960); Helton v.

United States, 221 F. 2d 338 (5 Cir., 1955)

The conviction of Rinaldi must, therefore,

be reversed and his case remanded for a new

tziai.*

The Second Circuit referred to the inad-

missible evidence concerning Rinaldi having

been convicted of a crime as constituting "plain

error" stating as follows, to-wit:

"Certainly there is here plain error

affecting substantial rights of Defen-

dant's which the Court is required to

a ee eee ee eee eee

Federal Rules of Criminal Procedure ...

reversed and remanded as to Defendant

Rinaldi."

In the Rinaldi decision the inadmissible

testimony that resulted in reversal was that

the accused had been convicted of a crime; it was

not established whether that crime was a mis-

demeanor or a felony. The crime could have

been serious or extremely minor. Kaiser's

appeal is much stronger than Rinaldi in calling

for reversal, because the word "con" as used by

the government's witness implied not only con-

viction of "a crime", but it connoted convic-

tion and incarceration in a penitentiary for a

particular kind of crime, a felony. One who

has been convicted of a misdemeanor is not in

common parlance referred to or thought of as

being a "con" or convict. Only one who has

been convicted of a felony and who additionally

has bean incarcerated in a penitentiary as a

result of such conviction is ordinarily thought

of as being a "con" or "convict". The complained

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of error in Kaiser's appeal was far more pre-

judicial than the error that resulted in the

reversal Of Rinaldi's conviction.

The Petitioner further relies on Helton

y, United States 221 F. 2d 338 (5th Cir., 1955).

In Helton, as in this case, the Defendant did

not take the witness stand. During the trial,

testimony was heard and received by the jury

that the Defendant had admitted to a federal

agent that "he had been smoking marijuana

intermittently very seldom for the past four

or five years". A timely objection was made

by defense counsel, and the Court sustained

the objection but failed to expressly instruct

the jury to disregard the improper testimony.

Helton's attorney, not being satisfied that

the Court's action could blot out from the

minds of the jurors improperly introduced

evidence respecting an extraneous violation of

the law, moved for a mistrial, which was denied.

The Fifth Circuit, even in the absence of a

specific instruction to the jury to disregard

8D SPS? a “ ‘ - SRE Ae bh EPR CRESS

the improper testimony, nevertheless reversed

the conviction. It is significant that in

Helton the Court made the following comment

relevant to the issue of improper admission of

evidence of prior offenses:

"...It is true that the evidence of guilt

here is overwhelming and that, on a second

trial, with the improper evidence ex-

cluded, the result may be the same. It is

also true that under Rule 52(a) Federal

Rules of Criminal Procedure, 18 U.S.C.,

we must disregard harmless error. But

Mr. Justice Harlan in Boyd v. United

States, supra, 142 U.S. at page 458,

12 S. Ct., at page 295, must have had

a case like this in mind when he wrote,

"However depraved in character and how-

ever full of crime their past lives may

have been, the @efendants were entitled

to be tried upon competent evidence and

only for the offense charged'. Reversed

and remanded."

In the United States v. Clarke, 343 F.

ond 90 (3rd Cir., 1965), the defendants were

found guilty of conspiring to violate the

federal Narcotics Laws. The appeal was basec

primarily on the testimony of a government

witness, a federal narcotics agent. On direct

examination the federal narcotics agent testi-

fied that the defendant had told him that he

had furnished an amount of cocaine to a fellow

in New York. A timely objection was made, and

the jury was instructed to disregard the informa-

tion they had just heard. The Defendant movec

for a mistrial, amd his motion was deniec. It

was the Defendant‘s contention that, since their

defense was entrapment, testimony that the Defen-

dant had admitted to a federal agent that he had,

prior to the unlawful sales charged in the

indictment, furnished a considerable amount of

cocaine to a fellow in New York," could have

s© prejudiced the jury that no instruction to

disregard it could cure the error. The sovern-

ment contended that prompt instruction to

disregard the improper testimony removed any

—s = ——

sible prejudice. The Third Circuit ruled

at the objected to testimony was, "... of

sh critical and grave proportions as to

retrievably scorch itself into the conscious

a sub-conscious minds of the jury. The most

liant effort on the part of a conscientious

sxror to obey the trial judge's admission to

isregard the testimony could only be an

vercise in futility ..."

The judgment of conviction in Clarke was

wersed, and the case remanded to the District

uurt with the directions to grant a new trial.

) the Clarke case the following cases were

ited by the Court as authoritative:

Throckmorton v. Holt, 180 U.S. 552,

21S. Ct. 474, 45 L. Ed. 663 (1901);

Mora v. United States, 190 F. 2nd 749 (5th

Cir., 1951);

Helt v. United States 94 F. 2nd 90 (10th

Cir., 1937);

Kotteakos v. United States, 328 U.S. 750,

66 S. Ct. 1239, 90 L. Ed. 1557 (1946).

PRET A TPE ELS ES TG I A ETO TE

In Odom Vv. United States 377 F. 2d 853

(Sth Cir., 1967), Defendant was convicted by a

jury of receiving an automobile in interstate

commerce, knowing it to have been stolen. The

case was reversed on a testimonial error to

yhich counsel made a timely objection. Sergeant

Johnson, one of the arresting officers, when

testifying how long he had known the Defendant,

replied as follows:

"I had seen Mr. Odom come in and out of

jail and spoke with him for perhaps a

year and a half.”

The Defendant's attorney moved promptly to

strike the above-quoted testimony, and the

motion was granted. The Court further admonished

the jury not to consider the answer in arriving

at their verdict. The Fifth Circuit, in rever-

sing the conviction, made the following comments:

"The judge's words were at most a mild

antiseptic with no prognostic or retrospec-

tive assurance that they eliminated the

sepsis."

7

"Juries do not facilely forget, and we

have the lingering suspicion that the

malodorous epithet 'jailhound' may

explain the incongruent verdict. The

attempt to sanitize testimony by admoni-

tion may sometimes succeed, but its

nuccess will very often depend upon how

virulent the diseased testimony was. Not

to reverse this case would violate the

clearly articulated principles in Helton

v. United States, 5th Cir., (1955), 221 F.

2a 338."

In the Odom case, the inadmissible testimony,

"T had seen Mr. Odom come in and out of jail and

spoke with him for approximately a year and a

half" was to constitute "plain error” and was

recognized as a basis for reversal, even in

the absence of a request or motion for mistrial.

In the case now before the Supreme Court,

the complaint of reference to Kaiser as being a

Ge ee re rte ee

‘con" had much more inflammatory connotation

toa layman than does the reference to the

comment, "I had seen Mr. Odom come in and out of

jail ..." One can be seen going in and out of

jail in a number of different capacities:

attorney, visitor, employee, under arrest for

aminor misdemeanor offense, et cetera. In any

event, to one who chooses to draw an inference

with criminality it suggests only arrest and

does not lead logically to a conclusion of con-

viction or even to a conclusion of guilt. In

Kaiser's case, however, the word "con" as used

by the government's witness and as understood

by citizens of whatever background and social

status, clearly suggests and alerts him to the

obvious: that the person referred to by that

term had been arrested, tried, convicted and

incarcerated in a penitentiary. The term

implies more than mere conviction of a crime;

it implies that one has been convicted of a

be Lae RN eagle te . ee s ce |

felony offense with its full and final

ramifications. The facts and reasoning that

led the Court to reverse the conviction of the

accused in the Odom case do not appear nearly

so compelling for reversal as do the facts in the

case now before the Court.

CONCLUSION

For the reasons stated, it is respectfully

submitted that this petition for certiorari

should be granted.

BREWER AND PRICE, INC.

BY:

JAMES E. PRICE

Attorneys for Petitioner

1711 W. Irving Blvd.,

Suite 200

Irving, Texas 75061

A.C. 214 - 253-3521