Opposition Brief — Tager v. United States

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SUPREME © . No. 73-898 nec 9 1873

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) States

Iu the Supreme Court of the Ui

OCTOBER TERM, 1973

A. HENRY TAGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. BORK,

Solicitor General,

Scott P. CRAMPTON,

Assistant Attorney General,

JOHN P. BURKE,

RICHARD B. BUHRMAN,

Attorneys,

Department of Justice,

Washington, D. C. 20530.

TABLE OF CONTENTS

Page

TI riccdtcectccnsdenrsueinesurtasdertonnccidemmnnen 1

Jurisdiction _......--------- RE PL NASON : 1

Questions presented __...................-------------------- 2

ALI AAR LIL TAAL 2

Serdar) BEALE Oe OD 3

Argument Sea S cuetaee aacneats 10

Conclusion HETIL SUEUNSS DET IEEE ape NOE 22

CITATIONS

Cases:

Barnes v. United States, 412 U.S. 837 15

Benton v. Maryland, 395 U.S. 784 15

Forman v. United States, 361 U.S. 416 11,15

Glasser v. United States, 315 U.S. 60. 10

Grunewald v. United States, 353 U.S.

ln RRsat, eka hac ; 13, 14

Haas v. Henkel, 216 U.S. 462 10

Hammerschmidt v. United States, 265

5 Sh ERR AReeeneeee ue one 10, 11

Hyde v. United States, 225 U.S. 347 11

James v. United States, 416 F. 2d 467. 18

Kobey v. United States, 208 F. 2d 583 . 10

Lindsey v. United States, 368 F. 2d 633,

certiorari denied, 386 U.S. 1025 __. 21

Schino v. United States, 209 F. 2d 67,

certiorari denied, 347 U.S. 937 10

Sibron v. New York, 392 U.S. 40 16,17

United States v. Craft, 421 F. 2d 693 21

United States v. Gleeson, 411 F. 2d 1091 21

United States v. Kissel, 218 U.S. 601 11

II

Cases—Continued Page

United States v. Klein, 247 F. 2d 908,

certiorari denied, 355 U.S. 924 10, 11

United States v. Spencer, 415 F. 2d 1301. 21

United States v. Tager, 481 F. 2d 97 17

Statutes:

Internal Revenue Code of 1954 (26

U.S.C.) :

Sn atuueietetins 15

Section 6531 ener 5

ae eR ee 3

18 U.S.C.:

NRE ane mee ree: 2,4, 10,17

ER SE aera Dts 17

I 17

I oe 5

SS a ee 19

Miscellaneous:

Fed. R. Crim. P., Rule 14... 19

Iu the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-393

A. HENRY TAGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1A-

8A) is reported at 479 F. 2d 120.

JURISDICTION

The judgment of the court of appeals (Pet. App.

1A) was entered May 17, 1973, and a petition for

rehearing was denied July 5, 1973 (Pet. App. 9A).

Mr. Justice White extended petitioner’s time for fil-

ing a petition for a writ of certiorari to September

(1)

SPREE LG. SSS

2

3, 1973, and the petition was filed August 31, 1973.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

the verdict on the conspiracy count.

2. Whether prosecution of the conspiracy count

was barred by the statute of limitations and whether

the jury was properly instructed on that subject.

3. Whether the court below erred in applying the

concurrent sentence doctrine so as to make unneces-

sary review of the conviction on the conspiracy count.

4. Whether the trial court erred in trying the sub-

stantive and conspiracy counts together.

5. Whether the trial court erred in admitting in

evidence, on the substantive count, Government Ex-

hibit 138-A, a cash disbursement journal.

6. Whether petitioner’s conviction on the conspir-

acy count should be reversed on the theory that the

trial court committed plain error in the admission of

Government Exhibit 154, where the issue was never

raised in the trial court and was raised in the court

of appeals only after the petition for rehearing had

been denied.

STATUTES INVOLVED

18 U.S.C. 371 provides:

If two or more persons conspire either to com-

mit any offense against the United States, or to

defraud the United States, or any agency there-

3

of in any manner or for any purpose, and one

or more of such persons do any act to effect the

object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than

five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a mis-

demeanor only, the punishment for such conspir-

acy shall not exceed the maximum punishment

provided for such misdemeanor.

Section 7206(1) of the Internal Revenue Code of

1954, 26 U.S.C. 7206(1), provides:

Any person who—

(1) Declaration under penalties of perjury.—

Willfully makes and subscribes any return, state-

ment, or other document, which contains or is

verified by a written declaration that it is made

under the penalties of perjury, and which he

does not believe to be true and correct as to

every material matter * * * shall be guilty of

a felony and, upon conviction thereof, shall be

fined not more than $5,000, or imprisoned not

more than 3 years, or both, together with the

costs of prosecution.

STATEMENT

After a jury trial in the United States District

Court for the District of Kansas, petitioner was con-

victed of (1) filing a false income tax return for the

calendar year 1964, in violation of 26 U.S.C. 7206(1) ;

and (2) having unlawfully conspired to defraud the

United States by impeding, impairing, obstructing

and defeating the lawful governmental functions of

4

the Internal Revenue Service in the ascertainment,

computation, assessment and collection of income

taxes, in violation of 18 U.S.C. 371. The court sen-

tenced petitioner to concurrent 30-month prison sen-

tences on each count and assessed costs against him

in the amount of $3,546.49.

The court of appeals found the evidence sufficient

on the substantive count and found petitioner’s other

contentions respecting that count to be without sub-

stance. It thereupon affirmed the judgment of con-

viction, finding it unnecessary to reach petitioner’s

contentions relating to the conspiracy count, since

the sentences were concurrent (Pet. App. 8A).

Since petitioner does not now attack the sufficiency

of the evidence on the substantive count, we shall

discuss here only the evidence relating to the con-

spiracy count.

The conspiracy indictment alleged that petitioner

and Jones, a co-conspirator but not a defendant, con-

spired to defraud the United States by impeding and

obstructing the Internal Revenue Service in ascer-

taining and assessing income taxes. It was alleged

to be part of the conspiracy that petitioner and Jones

would and did prepare and file false 1962 United

States income tax returns of Town Realty Corp.

(“Town”), Salem Investment Co., Inc. (“Salem’’),

and the Jones and Tager law partnership. It was

further alleged that the conspirators would and did

fail to file tax returns for Town and Salem for 1963;

and would and did fail to file the Jones, Tager, and

McDaniel law partnership returns for the years 1963

5

and 1964. It was further alleged that petitioner

would and did buy securities in his name and in the

nate of Town, Salem, or the Jones and Tager part-

nership and sell them in another of those names, with

the purpose of making the transactions difficult to :

trace. It was also alleged that it was part of the é

conspiracy that the participants would not and did '

not make available adequate records to Internal Reve- :

nue Service agents who attempted to determine the

correct income of the various individuals and entities

named in the indictment.

The conspiracy count alleged ten overt acts, in-

cluding the signing of certain tax returns by Jones

and petitioner. The only two overt acts which came

within the five-year statute of limitations’ were the

following:

i. On or about the twenty-ninth day of No-

vember, 1966, at his office in the Rialto Building

in Kansas City, Missouri, defendant A. Henry

Tager had a conversation with Special Agent

1 Since the case went to the jury on the theory that a five-

year statute of limitations applied, we concede here, for pur-

poses of the present case, that the statute applicable to this

case provides for a five-year period (18 U.S.C. 3282). How-

ever, it should be noted that Section 6531 of the Internal

Revenue Code of 1954 (26 U.S.C. 6531), providing for the

prosecution of “the various offenses arising under the in-

ternal revenue laws,” establishes a six-year period of limi-

tations for “offenses involving the defrauding or attempting

to defraud the United States or any agency thereof, whether

by conspiracy or not, and in any manner.” Thus, in a con-

spiracy in which the government preserved the argument

that its case arose “under the internal revenue laws,” it

would appear that a six-year statute of limitations applies.

ELE ee

6

Martin J. Broderick and Revenue Agent Marvin

Fiant.

j. On or about the twenty-ninth day of Octo-

ber, 1968, at the office of the Internal Revenue

Service Intelligence Division in Kansas City,

Missouri, defendant A. Henry Tager participated

in a conference attended by [certain named in-

dividuals].’

The evidence to support the verdict on the conspir-

acy count may be summarized as follows:

Petitioner became a law partner of Robert Jones

in 1957, and their partnership continued until 1963,

when it became Jones, Tager and McDaniel (Tr.

424). In addition to the law partnership, petitioner

and Jones formed and owned all the stock of Town

and Salem (Tr. 310, 425, 426).

The Jones and Tager partnership return for 1962

(Govt. Ex. 11) reported a loss on the sale of securi-

ties in the amount of $449,432.15 (Tr. 281-282). The

total sales of securities reported on this return were

$3,596,303.29 (Tr. 282). While breakdown of this

total is not shown on the return, Jones and Tager

had sales of $1,171,456.18, Salem had sales of

$1,982,607.06, and other entities had the balance (Tr.

283-285). The accounting firm which prepared the

return made the assumption, probably on the basis

2 Petitioner errs in the statement (Pet. 6) that the last

overt act (“j’’) alleged in the conspiracy count was abandoned

during oral argument before the court of appeals. What

government counsel said was that the government was rely-

ing mainly upon overt act “i” and if that was insufficient

as a matter of law, then overt act “j’’ was also insufficient.

7

of discussions with petitioner, that Salem was only a

“shell,” whose securities transactions actually repre-

sented the dealings of Jones and Tager (Tr. 285-

287). The partnership return was signed by Robert

Jones (Tr. 429), although all of the securities trans-

actions were initiated and completed by petitioner,

sometimes in his own name, sometimes in the name

of the partnership, sometimes in the name of Town

or Salem (Tr. 433-434).

The 1962 partnership return of Jones and Tager

showed income of some $112,000 from the practice

of law, which was wiped out by the alleged $447,000

loss on the sale of securities, resulting in a net loss

of some $335,000 (Tr. 431; Govt. Ex. 11). Jones

reported half of the alleged loss from the partner-

ship, or $167,966.95, on his 1962 individual income

tax return (Tr. 432).° Petitioner reported the other

half on his 1962 individual income tax return (Tr.

759).

Jones also signed the 1962 income tax returns of

Town and Salem (Tr. 426, 427-428). The Town

return reported a loss on the sale of securities of

$5,645.70 (Tr. 427), and the Salem return reflected

no trading in securities (Tr. 428), although there

were numerous transactions in securities that year

in the name of Salem (Tr. 480).

On January 1, 1963, the law partnership of Jones,

Tager and McDaniel came into existence (Tr. 306-

4

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B

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et

3 Jones was of the opinion that the losses from the pur-

chase and sale of securities in 1962 were overstated on the

partnership return, and that the actual losses were less

(Tr. 452.)

Ri Ss BATS SAS OO ase

8

307). Although no 1963 partnership return for this

firm was ever filed (Tr. 49-50), one was prepared

by an accountant, Franke, from information received

from petitioner and from the accounting firm that

prepared the 1962 returns (Tr. 341, 348). In 1963,

some of the securities transactions were in the name

of Salem, some in the name of petitioner, and some

in the name of Jones and Tager (Tr. 345-346, 436-

437). The unfiled 1963 partnership return stated

a loss on the sale of securities of about $41,000,

which was reflected in the distributive share of part-

nership income reported by the partners on their in-

dividual income tax returns (Tr. 758). When he

came to prepare the 1963 partnership return, Franke

had information that sales of securities totalled

$1,071,899.98 and that purchases totalled only $222,-

135.12; he was told by petitioner that he had lost

about $40,000 on the purchase and sale of securities

that year, so Franke estimated purchase prices for

many of the stocks, some of which were bought or

sold in the name of Town and National Mutual In-

surance Co. (Tr. 381-382).

Neither Town nor Salem filed an income tax re-

turn for the year 1963 (Tr. 50-51). Although a 1964

partnership return of Jones, Tager and McDaniel—

which showed no sales of securities—was prepared, it

was never filed (Tr. 50, 346).

Near the beginning of their investigation of the

criminal case, Treasury agents interviewed petitioner

on November 29, 1966 (overt act “i’) (Tr. 706,

822). At that time, the revenue agents were hav-

9

ing great difficulty tracing petitioner’s transactions

in securities and asked him for the names of the

stockbrokerage houses with which he had done busi-

ness. Petitioner gave the names of only six and

never gave the names of any others, although the

agents asked for such information (Tr. 707-708,

823). Later investigation disclosed many other brok-

ers with whom petitioner had done business (Tr.

823; Govt. Ex. 154). At no time did petitioner fur-

nish the agents with any records of his accounts

with any stockbroker (Tr. 826).

On October 29, 1968, the agents conducted another

interview with petitioner (overt act “j”). They ask-

ed him why he had not reported his securities trans-

actions on his 1963 and 1964 income tax returns,

and he replied that he felt he had lost more than he

had gained and therefore did not think it necessary

to report these figures (Tr. 710, 827). He said noth-

ing about the way he was purchasing or selling

securities, nor did he indicate the returns on which

the transactions actually had been reported (Tr.

710).

Government’s Exhibit 154 (see Tr. 693-701) is a

tabulation showing the petitioner’s purchases and

sales of securities in 1962 and 1963 through four-

teen stockbrokers with whom he was known to have

done business. Each figure is keyed to the number

of the government’s exhibit (stockbrokers’ records)

from which it came. A recapitulation on page 3

shows that the securities sold in 1962 through these

fourteen stockbrokers exceeded the sales reported by

alten LE

bret SLO

10

$72,044.25, and that the securities thus sold in 1963

exceed sales reported by $348,855.53. Government’s

Exhibit 156 is an analysis of some 33,955 shares of

stock (and certain bonds) which were bought in one

name and sold by petitioner in another name in

1962 or 1963. (See Tr. 771-776.)

The defense adduced no evidence.

ARGUMENT

1. Contrary to petitioner’s contention (Pet. 42-45),

the evidence was plainly sufficient to support the ver-

dict on the conspiracy count. Petitioner’s devices to

deceive the tax authorities were a fraud within the

meaning of 18 U.S.C. 371. See United States v.

Klein, 247 F. 2d 908 (C.A. 2), certiorari denied,

355 U.S. 924; Schino v. United States, 209 F. 2d

67 (C.A. 9), certiorari denied, 347 U.S. 937; Kobey

v. United States, 208 F. 2d 583 (C.A. 9); cf. Glasser

v. United States, 315 U.S. 60, 64, 66. That statute

is “broad enough in its terms to include any con-

spiracy for the purpose of impairing, obstructing or

defeating the lawful function of any department of

Government” (Haas v. Henkel, 216 U.S. 462, 479),

which is to be accomplished “by deceit, craft or

trickery, or at least by means that are dishonest”

(Hammerschmidt v. United States, 265 U.S. 182,

188; United States v. Klein, supra, 247 F. 2d at 916).

The government need not show an actual financial

or property loss in order to make a case under this

section. See Haas v. Henkel, supra, 216 U.S. at 479-

—_

11

480 and cases there cited; Hammerschmidt v. United

States, supra, 265 U.S. at 188.

Moreover, the conspiracy alleged in the case at bar

plainly was a continuing one. See United States v.

Klein, 247 F. 2d 908 (C.A. 2), certiorari denied,

355 U.S. 924; Forman v. United States, 361 U.S.

416, 423-424; Hyde v. United States, 225 U.S. 347,

367; United States v. Kissel, 218 U.S. 601.

The government still, in 1973, does not know the

income tax liability of petitioner and Jones for the

years 1962 and 1963. In order to compute their

income, it would be necessary to have a complete

listing of all capital gains and losses realized from

the sale of securities, and it is impossible to prepare

such a complete listing. Petitioner has never fur-

nished the government with any of his stock broker-

age accounts, nor do the Treasury agents know to

this day just how many stock brokers he did busi-

ness with. The 1962 partnership return gives no

breakdown at all of the securities transactions, but

simply shows total sales of $3,596,303.29 and pur-

chases of $4,039,009.11 (Govt. Ex. 11, p. 4). The

Internal Revenue Service has never been able to

verify those figures, although it is known that there

were at least $72,044.25 of sales unreported (Govt.

Ex. 154, p. 3). As for 1963, the predicament of the

Service is even worse. For in that year it is known

that the sales reported on the partnership return were

understated by at least $348,855.53 (Govt. Ex. 154,

p. 3).

DREN BONY NPM WISH v aire

12

The practice of dealing with a large number of

stock brokers, some of them still probably unknown

to the government, and of buying securities in the

name of one person, partnership or entity and selling

them in the name of another has effectively frustrated

the Internal Revenue Service in its efforts to re-

construct the income of petitioner and Jones (Govt.

Ex. 156). This continuous course of conduct was not

the result of inadvertence or misunderstanding, but

rather the result of a deliberate plan, carried out

primarily by petitioner but known to, and acquiesced

and participated in, by Jones.‘

We submit that the proof was plainly sufficient

to support the verdict finding petitioner guilty on the

conspiracy count.

* Evidence of petitioner’s guilty knowledge and intent is

provided in the following testimony of McDaniel, petitioner’s

former law partner (Tr. 312):

Q. * * * I understand you testified that you observed

Mr. Tager signing checks.

A. Yes, I’ve seen Mr. Tager sign many checks on

many different corporations, on many different check-

books, yes sir, I have.

Q. Will you explain that more in detail?

A. Sometimes he would have as many as twenty

checkbooks. I have seen him write one check on one ac-

count payable to another account. A check on the other

account payable to maybe two other accounts or three,

or a check on three of them payable back to one, et cetera.

I’ve seen a transaction where you make one payable to

this one, another over here and another one back and to

this one. I have inquired about why and what was going

on. Some day there would be a time when the IRS would

look this over, and he said, “I would like to see them fol-

low that transaction.”

Se eee me a mY

13

2. There is no substance to the argument (Pet.

35-42) that prosecution of the conspiracy charge was

barred by the statute of limitations and that the

jury was improperly instructed on this subject. The

government had to prove that there was an overt

act committed within five years’ of the date of the

indictment, October 15, 1971, which act entailed

more than a mere effort to cover up the fact that

there had been a conspiracy, and which was designed

to further the principal objective of the conspiracy.

See Grunewald v, United States, 353 U.S. 391. There

were two overt acts alleged within that five-year

period (See, Statement, supra, pp. 5-6). Overt act

“i”, upon which we rely primarily, alleged that on

or about November 29, 1966, at his office in Kansas

City, Missouri, petitioner had a conversation with

named Treasury agents. The proof showed that at

this conference the revenue agents, having had great

difficulty in tracing petitioner’s transactions in se-

curities, asked him for the names of the stockbroker-

age houses with which he had done business. Pe-

titioner gave the names of only six and did not

indicate that there were any more, when there were

in fact at least fourteen (Tr. 707-708, 823; Govt.

Ex. 156.)

To constitute an overt act in furtherance of the

conspiracy the jury had to find that petitioner’s dis-

closure of only a few of his many stockbrokers was

designed to accomplish the main objective of the

5 See footnote 1, p. 5, supra.

LIENS BY iil te AGILE GER

14

conspiracy, 1.¢e., to impede and obstruct the Internal

Revenue Service in its efforts to ascertain, assess

and collect income taxes. Grunewald v. United States,

supra. The jury was correctly instructed on this sub-

ject. Petitioner has set forth (Pet. 39-40) part

of the court’s instruction to the jury on this subject,

but reference to the record (Supp. Tr. 273-274) dis-

closes that more was said.° When the instruction is

® Immediately following the part of the charge quoted by

petitioner (Pet. 39-40), the court continued as follows (Supp.

Tr. 273-274):

You are instructed that a conspiracy, once formed, con-

tinues to exist until (1) it has accomplished its manifest

purpose and objectives, or (2), it has ceased by the with-

drawal of the members of the conspiracy evidenced by a

clear showing of the conspirators to withdraw and no

longer be a part of the conspiracy.

In this case the indictment alleges that the conspiracy

was made up of only two persons, the defendant and

the named but unindicted co-conspirator, Robert C. Jones.

If you find that there was a conspiracy as charged but

that either of the conspirators clearly manifested his in-

tention to withdraw from the conspiracy and did in fact

withdraw therefrom prior to the commission of either

of the last two alleged overt acts, that is, I or J that I

have referred to, then the conspiracy ceased to exist as

of that moment because a person cannot conspire with

himself. In such case, prosecution of the defendant

would be barred by the statute of limitations and he

could not be convicted of the offense charged in Count 3.

However, if the withdrawal from the conspiracy did

not take place until after the commission of one of the

last two alleged overt acts, I or J, and you found that all

the essential elements of the offense had been proved—

proven to your satisfaction beyond a reasonable doubt,

then you should find the defendant guilty of the offense

charged in Count 3.

2 enema eee

one mate seca

15

read in its context, it is an entirely proper and com-

plete charge (Supp. Tr. 272-274). The jury could

not have found petitioner guilty under these instruc-

tions without first finding that his conversation with

the Treasury agents (less than five years before the

return of the indictment) was designed to accomplish

the main objective of the conspiracy.

The evidence warranted the jury’s findings that

the overt acts proved were in furtherance of the con-

spiracy. This conspiracy did not attain its objective 4

when the returns were filed. That was but the first

step in the continuing conspiracy to impede the In-

ternal Revenue Service in its efforts to ascertain and

assess the correct income taxes of the conspirators.

Cf. Forman v. United States, 361 U.S. 416, 423-424.

Since even as to the year 1962 (the returns for

which were not filed until January 1964) the period $

of tax assessment for civil purposes had not expired

at the time of the November 1966 conference (see

26 U.S.C. 6501), the conspirators still had a vital

stake in keeping the conspiracy alive, and it did not

in fact come to an end until Jones began to co-

operate with the government in June 1971.

3. There is no merit to the argument (Pet. 14-

35) that the court below erred in invoking the con-

current sentence doctrine. This Court has recently

reaffirmed in the context of a direct appeal its hold-

ing in Benton v. Maryland, 395 U.S. 784, that the

concurrent sentence rule should be preserved as a

matter of proper judicial administration. Barnes v.

United States, 412 U.S. 837, 848 n. 16. While some

inilieainieeai hintaan ee

16

circuits, as petitioner points out, appear to be more

likely than others to apply the concurrent sentence

rule as a matter of discretion, we see no conflict

which would warrant the granting of a writ of cer-

tiorari. All the circuits recognize that while a court

may in its discretion ignore the concurrent sentence

rule when it chooses to do so, it is not required to

review each count of a multi-count conviction on

which concurrent sentences are imposed, unless sub-

stantial collateral legal consequences result from the

multiple convictions. Recognizing this principle, peti-

tioner makes three arguments: (a) That under

Sibron v. New York, 392 U.S. 40, serious collateral

consequences are always present (Pet. 33); (b) that

these consequences relate to state habitual criminal

statutes, possibilities of probation or parole, the ques-

tion of impeachment in future court proceedings, and

the stigma of being convicted of two offenses rather

than one (Pet. 34); and (c) that in this case peti-

tioner, being an attorney, suffers the serious collateral

consequence that after his expected disbarment from

the practice of law he will find it more difficult to

gain reinstatement to the bar with the unreviewed

conspiracy conviction hanging over his head (Pet.

34-35). None of these arguments has merit.

(a) Sibron v. New York, supra, did not involve

the concurrent sentence doctrine. In that case Sibron

was sentenced to six months in prison for possession

of heroin. He had served his sentence before the

appeal reached this Court. Noting that Sibron “could

not have brought his case to this Court for review

17

before the expiration of his sentence” (392 U.S. at

51-52), this Court held that the case was not moot.

The situation in Sibron bears no resemblance to this

case. No claim is made that petitioner’s appeal was

moot.

(b) It is obvious that such routine and universal

collateral consequences as those relating to state ha-

bitual criminal statutes, possibilities of probation or

parole, and the question of impeachment in future

court proceedings are not sufficient to require courts

to ignore the concurrent sentence rule. If it were

otherwise, there could be no concurrent sentence rule.

(c) Petitioner’s claim that he will someday be re- ‘

instated to the practice of law if he is guilty of only é

one felony rather than two (Pet. 34-35) is without

substance. The fact is that petitioner has been found

guilty of five felonies, not two. In another case, peti-

tioner was found guilty of three felonies in the

United States District Court for the District of Kan-

sas: (1) conspiring to transport in interstate com-

merce a United States treasury bill with a face

amount of $100,000, knowing it to be stolen, in vio-

lation of 18 U.S.C. 371; (2) receiving the same

treasury bill, in violation of 18 U.S.C. 2315; and (3)

transporting the same treasury bill, in violation of

18 U.S.C. 2314. The Tenth Circuit reviewed all three

convictions, affirmed all three on May 14, 1973

(United States v. Tager, 481 F. 2d 97), and denied

a petition for rehearing on August 28, 1973.' In

these circumstances, the possibility that a reversal

t

i

z

3

Sa;

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E

¢

? Petitioner filed a petition for a writ of certiorari in that

case on October 26, 1973, No. 73-694.

18

of one of the five felony convictions would have a

substantial effect on petitioner’s chances of being

readmitted to the practice of law is too remote to be

worthy of consideration.

4. There is no substance to the argument (Pet.

45-49) that the trial court erred in trying the sub-

stantive and conspiracy counts together. The court

acted well within its discretion in ordering these two

indictments, which related to petitioner’s income tax

matters for the years 1962 through 1964, tried to-

gether. The pre-trial order spelled out the reasons

as follows:

Baker v. United States, 401 F. 2d 958 (C.A.

D.C., 1968) presents an analogous factual situ-

ation. In Baker, the defendant was charged in

nine counts, including willful evasion of income

taxes (Counts 1 and 2); and conspiracy to de-

fraud the Government and defeat collection of

taxes (Count 9). The Court experienced little

difficulty in sustaining the joinder of Counts 1

and 2 with Count 9, even though the Govern-

ment chose to proceed on a specific item theory

in proving the evasion counts. The Court stated:

‘The predominant consideration is whether

joinder would serve the goals of trial econ-

omy and convenience; the primary purpose

of this kind of joinder is to insure that a

given transaction need only be proven once.’

Baker v. United States, supra, at 971; see

James v. United States, 416 F. 2d 467 (5th

Cir. 1969).

These goals of trial economy and convenience

are persuasive here, since the Court is otherwise

19

satisfied that the tests of Federal Rules of Crim-

inal Procedure 8(a) have been met.

From an examination of the contents of the

two indictments, it is obvious that the transac-

tions overlap and, as the Government has stated,

the same witnesses will be called to give evidence

in each case. Therefore, the Court will permit

joinder of the indictments for trial. Of course,

the defendant is free to renew his request for

Rule 14 relief at some later time, should it ap-

pear he is prejudiced; however, at this time, no

evidence of prejudice is discernible.

At no time did petitioner renew his request for

relief under Rule 14, Fed. R. Crim. P.

5. Petitioner claims (Pet. 48-49) that the court

below erred in holding that Government Exhibit 13-A,

the cash disbursement journal of Policy Budget Plan,

Inc., was properly admitted in evidence. The argu-

ment is without merit. It is true that, beginning

sometime in March 1964, the book was not kept up

to date in the usual course of business (Tr. 180-181),

but the last entries in the book relied upon by the

government were dated March 2, 1964 (see two

checks bearing that date—Govt. Exs. 15 and 16).

Up until that time the book had been kept in the

usual course of business (Tr. 131). The book was

therefore properly admitted under the “shop-book”

statute, 28 U.S.C. 1732. The exhibit was much more

than only “one-half of the bookkeeping system” (Pet.

48); it was the book of original entry. Each entry

represented a credit to the cash account and an off-

setting debit. Moreover, for the month of January

1964 the book shows a complete recapitulation of

TS SSS eases

REED RANE ORT RELMR Fel EB ELBE \

20

checks drawn. Those drawn in favor of petitioner

that month ($22,515.75), plus the check for peti-

tioner’s personal car ($4,550.00), total $27,065.75,

and that is the amount shown on the recapitulation

to be charged to petitioner’s account and not to any

“Loans Receivable” or other account (Tr. 147-149,

200-201). There is no reason to believe that checks

drawn to petitioner in February 1964 or on March

2, 1964, would have been treated any differently from

those drawn to him in January 1964.

6. Petitioner contends, finally (Pet. 53 and Sup-

plemental Brief, passim) that “[i]nflammatory and

prejudicial evidence not of record was made avail-

able to the jury during its deliberations.” This con-

tention is also without merit. Petitioner’s complaint

—made for the first time after the petition for re-

hearing was denied—refers to Govt. Ex. 154, which

we have described supra, at pp. 9-10. It is a tabulation

showing petitioner’s purchases and sales of securities

in 1962 and 1963; the recapitulation (Govt. Ex. 154,

p. 3) shows that the securities sold exceeded sales

reported by $72,044.25 in 1962, and by $348,855.53

in 1963. Petitioner claims that the original exhibit

contained certain additional figures which were sup-

posedly erased, but which were still visible on the

original upon close examination, and that the jury

may therefore have gotten the impression that there

were substantial unreported sales of securities in ad-

dition to those claimed by the government. However,

these erased figures do not appear on the xerox copies

of Govt. Ex. 154 which went to the jury after the

21

original was turned over to counsel for petitioner at

the trial (Tr. 687-690, 697, 698, 712-713). Although

counsel made many objections to the exhibit (Tr.

687-690) and cross-examined at length the govern-

ment witness who prepared it (Tr. 749-756), no ob-

jection was made on the ground now urged.

Petitioner’s contention is in the nature of a motion

for new trial on the ground of newly discovered evi-

dence, and it must fail because (1) counsel could

have discovered it at the trial,*° and (2) it is not of

such a nature as probably to result in an acquittal

at a retrial. United States v. Craft, 421 F. 2d 693,

695 (C.A. 9); United States v. Spencer, 415 F. 2d

1301, 1304 (C.A. 7); United States v. Gleeson, 411

F, 2d 1091, 1094 (C.A. 10); Lindsey v. United

States, 368 F. 2d 633, 634 (C.A. 9), certiorari de-

nied, 386 U.S. 1025. Moreover, there is every reason

to believe that none of the jurors ever saw the origi-

nal of the exhibit. When they retired to deliberate,

each juror had a xerox copy (Tr. 746; Supp. Tr.

288)—on which the erased figures did not show up—

and there would have been no occasion for any of

them to examine the original exhibit.

*It is clear that the original was turned over to defense

counsel for examination at the trial, because the xerox copies

were not in existence at that time. See Tr. 687-690, 697, 698,

712-713.

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22

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

ROBERT H. BorK,

Solicitor General.

Scott P. CRAMPTON,

Assistant Attorney General.

JOHN P. BURKE,

RICHARD B. BUHRMAN,

Attorneys.

DECEMBER, 1973.

RQ. B. COVERAMERD PRIMntiNG Urrice. 1¥7> 927652 133