# Petition for Writ of Certiorari — Kaiser v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 855

## Text

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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POE LE MONT OS PAN I AREY Oo Mist 2 Fado AARON ee Lael

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

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