# Opposition Brief — Stern v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1629%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 1033

## Text

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)

2

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

CRE Oe LOLI LPL EP A TI II LOPLI LI Bi EA OE ET Les ET Ve EP.

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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

PREETI RENE ONION NEAT MR RIN Fy

PERRIS FT

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.

WW oU. S. GOVERNMENT PRINTING orrice; 1975 598038 136

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1629%3A2. Public record. Not legal advice.