Opposition Brief — Stern v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-446

MARTIN STERN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

After a non-jury trial in the United States Dis-

trict Court for the Central District of California, peti-

tioner was convicted of (1) conspiring with a named

individual to obstruct and defeat the functions of

the Internal Revenue Service in the assessment and

collection of income taxes, in violation of 18 U.S.C.

371; (2) willfully attempting to evade and defeat

his individual income tax for the year 1970, in vio-

lation of 26 U.S.C. 7201; and (3) willfully failing

(1)

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to file an income tax return for 1970, in violation of

26 U.S.C. 7203. Petitioner was fined $2,500 on each

count and sentenced to prison terms totalling four

years (R. 250).' The court of appeals affirmed (Pet.

App. Al-A10). Petitioner contends that he was de-

nied the effective assistance of counsel, that the gov-

ernment should have called the district court’s atten-

tion before trial to his mental capacity, and that

there was an inadequate inquiry into whether he

wished to waive trial by jury.

As the court of appeals stated (Pet. App. 2), the

evidence showed that petitioner, a former Internal

Revenue Service agent, started a business in 1970

to bootleg tape recordings of musical hits. He

solicited orders by telephone and ran the business on

a cash basis with a bank account kept under a fic-

titious name. The 20 to 50 employees were paid in

cash and did not complete withholding tax forms but

were told that the taxes were “taken care of.” A

government expert computed Stern’s taxable income

for 1970, the year he failed to file a return, at $381,-

026.50.

The pertinent facts relating to petitioner’s conten-

tions are as follows: Two weeks after his conviction

petitioner filed a motion for a new trial, supported

by affidavits purporting to show that he was incapable

of forming the specific intent to commit the offenses

or of adequately cooperating in his own defense. He

was then represented by an attorney other than his

1“R.” refers to the Clerk’s Record (Pleadings) on appeal.

“Tr.” refers to the trial transcript.

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counsel at trial. The government responded with a

request for a court-ordered psychiatric examination,

which was granted. Petitioner then filed an affidavit

from a psychiatrist who first saw him after convic-

tion and before sentencing stating that petitioner was

a schizophrenic who lacked substantial capacity to

conform his conduct to the requirements of the law.

A psychotherapist who had treated petitioner for more

than two years agreed with that assessment. Peti-

tioner filed an affidavit stating that his trial counsel,

Bruce Hochman, was negligent and incompetent in

failing to explore a possible “psychiatric defense’’

(Pet. App. A2-A3).

The court-appointed psychiatrist concluded that (1)

petitioner was presently able to understand the pro-

ceedings against him and to cooperate and assist in

his own defense; (2) petitioner was able to under-

stand the proceedings against him from January 1,

1974 (shortly after indictment), to the time of the

report, and able to cooperate rationally with counsel

in his own defense during that time; and (3) peti-

tioner, even though suffering from schizophrenia, did

not lack substantial capacity either to appreciate the

wrongfulness of his conduct or to conform it to the

requirements of the law at the time of the com-

mission of the charged offenses (Pet. App. A3-A4).

At the hearing on petitioner’s motion for a new

trial, he argued that his trial counsel had erred in not

making an inquiry into petitioner’s psychiatric back-

ground (Tr. 579). Petitioner’s trial counsel, Bruce

Hochman, testified that before trial he had discussed

PRLS LNG IIE LYNG AL REE SOMTLLE A TEE a Pe

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with petitioner the possibility of a “diminished capac-

ity” defense (Tr. 609-610), but that he had decided

not to utilize this as a defense because he “believed it

would have been counter-productive” (Tr. 610).

Hochman decided to defend on the basis of petitioner’s

alleged reliance on the professional advice of his

former tax lawyer and accountant, Herbert Sturman

(Pet. App. A4). After this defense was raised prior

to trial, the prosecution gave serious consideration to

recommending a misdemeanor disposition in return

for a guilty plea (<bid.).

In denying the motion for a new trial, the trial

court stated (Tr. 651-652):

I have given a great deal of thought to the man-

ner in which this case was tried and the ade-

quacy of the representation given by Mr. Hoch-

man to this defendant. And I see no basis what-

soever for the granting of the motion that is

before this Court.

* * * * *

I am convinced that if there was evidence of

a mental condition on the part of this defendant,

that Mr. Hochman was aware of it and took

those steps that an adequate and a competent de-

fense lawyer would take in considering that as

a defense, and if it was at all substantial, he not

only was aware of it, but must have given it his

consideration in his overall plans for arranging

the defense of this defendant. It could indeed be

said to be a matter of tactics on the part of

skilled counsel, and I don’t think that the de-

fendant should be allowed to come into court after

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he has been found guilty and have a second trial ;

simply because he wants now to take another

tactical step.

There is no evidence that the defendant was

legally insane at the time of the commission of

the offense or at the time of the trial, or that he

was incompetent to cooperate with his counsel

at the trial.

I have called upon my own recollection of the

manner in which this case was tried, and I am

convinced that the defendant was well aware of

the nature of the proceedings, was competent to

cooperate with his counsel, and did indeed co-

operate with his counsel, and that he was given

a fair trial. I see no misconduct on the part of

the Government or of defense counsel.

1. Petitioner contends (Pet. 18-28) that his con-

viction should be set aside because his trial counsel’s

failure to investigate a psychiatric defense denied

him the effective assistance of counsel. Petitioner

and his trial counsel conferred approximately 15 or

20 times before trial (Tr. 610), and on at least two

occasions they discussed the advisability of a defense

based upon petitioner’s mental condition (Tr. 608-

610). However, the conclusion of petitioner’s trial

| counsel that an insanity defense would have had little

) chance of success is supported by the fact that peti-

tioner had used fictitious names and addresses (see

Tr. 57, 80, 184-186, 227-228).

Moreover, such a defense would have been incon-

sistent with one of the defenses used at trial, viz.,

that petitioner was aware of his duty to pay taxes

and that he consulted his tax lawyer early in 1971

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for advice as to how he could comply with this duty

(Tr. 332-333, 336, 444-446, 564-565). The defense

of lack of criminal intent would have lost much of

its force if combined with an insanity defense. Cf.

United States v. Carlson, 423 F.2d 431, 435 (C.A.

9), certiorari denied, 400 U.S. 847. Finally, peti-

tioner’s trial counsel may well have considered the

incongruity of advancing an insanity defense on be-

half of a defendant who was shown to have earned

over $380,000 in one year (Tr. 295-296, 323). The

fact that the defense employed was not successful

does not establish that petitioner did not receive the

effective assistance of competent counsel.’

Finally, there is no merit in petitioner’s argument

(Pet. 18-28) that there is a conflict between the

standard employed by the court of appeals for ascer-

taining whether he was denied the effective assistance

of counsel, and that of this Court and the other courts

of appeals. Here, the court of appeals stated that it

would not reverse a conviction “unless a defendant’s

representation has been so inadequate as to make his

trial a farce, sham, or mockery of justice” (Pet. App.

A6). But the only foundation for petitioner’s claim

2 As the court of appeals pointed out, during the hearings

on the motion for new trial, the district court described peti-

tioner’s trial counsel as “perhaps one of the best tax lawyers

handling criminal cases in Los Angeles County” (Pet. App.

A3). He was therefore not likely to have overlooked a meri-

torious available defense. Moreover, when the question of

petitioner’s mental competency was finally raised, the district

court found that there was “no evidence that the defendant

was legally insane at the time of the commission of the offense

or at the time of the trial” (Tr. 652).

RSD VERS R AIA ERD EI ATOR AED a ES OE FRAT ANT hE TRY Be RE ey SO

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that he did not receive the effective assistance of

competent counsel is that his trial counsel rejected

the psychiatric defense which he might have used.

That decision was one of conscious and informed

choice by an experienced lawyer, and under all stand-

ards employed by the courts, petitioner received the

effective assistance of competent counsel.

2. Petitioner further argues (Pet. 29-31) that the

prosecutor was required to advise the court prior to

trial of his knowledge concerning petitioner’s psychi-

atric history in order that an inquiry would be com-

menced under 18 U.S.C. 4244 as to whether peti-

tioner was competent to assist in his own defense.

However, under 18 U.S.C. 4244, the prosecutor is re-

quired to file a motion only when he “has reasonable

cause to believe that a person charged with an offense

* * * may be presently insane or otherwise so mentally

incompetent as to be unable to understand the pro-

ceedings against him or properly to assist in his own

defense.”’

Here, the only knowledge concerning petitioner’s

psychiatric history which the government attorneys

had was either imparted to them by petitioner’s coun-

sel (Tr. 634-637, 639-640, 643-645) or imparted to

them in the presence of his counsel (R. 180). The

prosecutors were justified in assuming that if there

was any question as to petitioner’s ability to assist

in his own defense, defense counsel would either take

action or request the government to take action lead-

ing to a judicial determination. In these circum-

stances, the trial court correctly concluded that there

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was “no misconduct on the part of the Government”

(Tr. 652).

3. Finally, petitioner argues (Pet. 32-35) that the

failure of defense counsel and government counsel re-

sulted in an inadequate inquiry into the voluntariness

of his waiver of trial by jury. However, there was a

written waiver of trial by jury, concurred in by the

defense, the court, and the prosecution. Under these

circumstances, the requirements of Rule 23(a) of

the Federal Rules of Criminal Procedure are fully

met without any further inquiry. United States v.

Hunt, 413 F.2d 983, 984 (C.A. 4). Moreover, out of

an abundance of caution, the court addressed peti-

tioner and ascertained that he understood that he was

entitled to a jury trial and that he personally waived

that right (Tr. 14). There can accordingly be no

doubt as to the voluntariness of petitioner’s waiver

of a jury trial.

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should

be denied.

ROBERT H. BorK,

Solicitor General.

DECEMBER 1975.

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