Petition for Writ of Certiorari — Claassen v. United States

95-1 186 FILED

FFR 20 1996

CLERK

In THE

Supreme Court of the United States

October Term, 1995

JAMES M. CLAASSEN

V. Petitioner,

United States of America

Respondent,

On Petition For Writ Of Certiorari

To The United States Court of Appeals For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Gary L. Betz

304 Plant Avenue

Tampa, Florida 33606

(813) 254-8888

STATEMENT OF THE QUESTIONS PRESENTED

ON THE PETITION

I. WHETHER THE GOVERNMENT’S STATEMENTS

AND OPINIONS IN OPENING AND CLOSING AND THE

INTRODUCTION OF HEARSAY REGARDING AN UNSUB-

STANTIATED FDIC ETHICAL POLICY ALLEGEDLY PRO-

HIBITING JAMES CLAASSEN FROM PARTICIPATING IN AN

RTC AUCTION, WHICH WAS NOT ADMITTED INTO EVI-

DENCE, UNDULY PREJUDICED JAMES M. CLAASSEN AND

IN AFFIRMING THE CRIMINAL CONVICTIONS THE 11TH

CIRCUIT COURT OF APPEALS HAS DEPARTED FROM

ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEED-

INGS, AND SANCTIONED A DEPARTURE THAT THE EXER-

CISE OF THIS COURT'S SUPERVISORY POWER IS RE-

QUIRED.

II. WHETHER THE INDICTMENT WAS BASED UPON

INACCURATE AND INCORRECT GRAND JURY TESTI-

MONY CONCERNING NONEXISTENT FDIC REGULATIONS

ALLEGEDLY PROHIBITING JAMES CLAASSEN FROM

PARTICIPATING IN AN RTC AUCTION AND IN AFFIRMING

THE CRIMINAL CONVICTIONS THE 11TH CIRCUIT COURT

OF APPEALS HAS DEPARTED FROM ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS, AND SANC-

TIONED A DEPARTURE THAT THE EXERCISE OF THIS

COURT'S SUPERVISORY POWER IS REQUIRED. .

IIIA. WHETHER THE EVIDENCE INTRODUCED AT TRIAL

WAS INSUFFICIENT TO ALLOW A REASONABLY MINDED

JUROR TO FIND THAT A CONSPIRACY EXISTED BE-

TWEEN THE DEFENDANTS ON THE DATE OF THE AL-

LEGED CONSPIRACY, SEPTEMBER 24, 1991 AND SEPTEM-

BER 28, 1991 AND IN AFFIRMING THE CRIMINAL CONVIC-

TIONS THE 11TH CIRCUIT COURT OF APPEALS HAS

DEPARTED FROM ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS, AND SANCTIONED A DEPAR-

TURE THAT THE EXERCISE OF THIS COURT'S SUPERVI-

SORY POWER IS REQUIRED. .

IIIB. WHETHER THE TRIAL COURT ERRED WHEN

INSTRUCTING THE JURY BY USING THE “PINKERTON”

(i)

Sn Oe ee

INSTRUCTION AND BY FAILING TO REDACT ALLEGED

“OVERT ACTS” FROM THE INDICTMENT THAT OC-

CURRED AFTER SEPTEMBER 28, 1991 AND WHETHER THE

TRIAL COURT ERRED BY FAILING TO GIVE APPELLANT

JAMES M. CLAASSEN’S PROPOSED JURY INSTRUCTION

CONCERNING THE TERMINATION OF THE CONSPIRACY;

WHETHER THE DISTRICT COURTS JUDICIAL DETERMI-

NATION AND FINDING THAT JAMES CLAASSEN WAS NOT

GUILTY OF AIDING AND ABETTING HIS FATHER IN THE

COMMISSION OF THE SUBSTANTIVE OFFENSES COLLAT-

ERALLY ESTOPS THE APPLICATION OF THE PINKERTON

DOCTRINE AND IN AFFIRMING THE CONVICTION THE

11TH CIRCUIT COURT OF APPEALS SANCTIONED A DE-

PARTURE FROM ACCEPTED JUDICIAL PROCEEDING AND

HAS DECIDED A FEDERAL QUESTION IN A WAY THAT

CONFLICTS WITH RELEVANT DECISIONS OF THIS COURT.

IV. WHETHER THE COURT OF APPEALS SANCTIONED

AND DEPARTED FROM ACCEPTED JUDICIAL PROCEED-

INGS BECAUSE THE COURT DID NOT REMEDY AND

SUPERVISE THE EGREGIOUS TRIAL CONDUCT OF THE

PROSECUTOR REQUIRES THIS COURT TO EXERCISE THE |

POWER OF SUPERVISION.

(11)

CERTIFICATE OF INTERESTED PERSONS

The undersigned hereby certifies that the following is a

complete list of persons and entities having an interest in the

outcome of this case:

is

Gary L. Betz

Counsel for James Claassen

Honorable Francis J. Boyle

United States District Judge

James M. Claassen

Defendant

D. Richard Claassen

Defendant

Mark J. Krum

Assistant U.S. Attorney

William B. Plowman

Trial Counsel for D. Richard Claassen

Gregory A. Sanoba

Counsel for D. Richard Claassen

(111)

TABLE OF CONTENTS

Statement of the Questions Presented on the Petition .................. (i)

Certificate of Interested Perso .....................ssccssesssssssessessoveeees (iil)

TN GE A ei vkidk hn cickavica ites dad sided nde (iv), (Vv)

PURE PIII cs cdocecsinctatcactabansicroccopnsdsstiiacacctmntdidenes (vi), (vii)

SABE, GE FIO ois ee disartitersetecs sxmbatarcanniasisiodaatersmesbarciees l

Constitutional Provisions and Statutes Involved ..............:::000008 I

SURACRACIE 05 TAG RIE iiiare tics corcectccnteasseoceniloniaidaindeanas I

A. Course of Proceedings and Disposition in the United States

District Court for the Middle District of Florida and the 11th

Circuit Court of Appeals of the United States ..................... 1

«EA techies ren needa casees ocdcncnieneccasebestens 2

| RR INI aotekathscestcsdacerebictichetstnehsensemmaibebinicnicesse 2

2 ER I Wek sadadbiechcssesnndipebaiicniastas etidipbininiioaes 4

3. The Facts Presented At Trial As They Relate To James

Claassen On Or Before September 28, 1991 ............. 4

4. The Facts Presented At Trial As They Relate to James

Claassen After September 28, 1991 .0............eseseesees 5

5. Intentional Playing By The Prosecutor Before the

Jury Heresay Ruled Inadmissable by the Court ......... 6

6. Trial Court's Finding on Motions for Judgement of

Acquittal and Jury Instructions .............0::ccceceeeeeeeeeees 7

REASONS FOR GRANTING THE PETITION

SPI WE CI isiccincocsnsstcunseracinasentiindiavemlonteseotadanpesisbebuats 8

PUI | is iovstscciacitgatteticeninidinenesepisdnbvaieainisardapasdintsinmsasunbodats 1]

I. The Government's use at trial of an unsubstantiated FDIC

Ethical Policy allegedly prohibiting James Claassen from

participating in an RTC auction, which was not admitted into

evidence, and not based upon federal regulations unduly

premadiced Fasnies Wi. CIARSGOM ......cccsssssscecccsesevencveveseceveseons 1]

(iv)

II.

IITA.

The indictment was based upon inaccurate and incorrect

grand jury testimony concerning nonexistent FDIC regula-

tions allegedly prohibiting James Claassen from participat-

ing in an RTC Auction and deprived the petitioner his due

process constitutional rights and his Sth Amendment right to

be indicted by a Grand Jury ...........ccccccccsccesseeeeserseerseeesasenes 14

The Evidence introduced at trial was insufficient to allow a

reasonably minded juror to find that a conspiracy existed

between the defendants on the date of the alleged conspiracy,

September 24, 1991 and September 28, 1991 ...........-000+ 15

IIIB. The trial court erred when instructing the jury by using the

“Pacer tan” BAGUICTI ecereccncnsstemcccensecesootaracanmneppensapenepta 18

1.

It was improper, confusing and error to give the

Pinkerton instruction in this case depriving the peti-

Choma OF 0 FIG TIE sccccciccnicrtnceroesssessienpimantbennsopensess 18

The District courts judicial determination and finding

that James Claassen was not guilty of aiding and

abetting his father in the commission of the substan-

tive offenses collaterally estops the application of the

Phaicestots GOCIIIG .ncccsvcccecssscncssantibassinepontensseteviteoseoes 20

The combination of the use of the Pinkerton instruc-

tion and the failure to redact acts that occurred

after the completion of the conspiracy on September

28, 1991 was error resulting in the denial of a Fair

TUREE, .. nceavcscisisenncndinctticninauicicacietnicaipeentiiaiiadéntmatetes 20

IV. The Conduct of the Prosecutor at trial and at the Grand

Jury denied the petitioner due process and a fair trial

requiring this Court's SUPETVISION. .............0eseeseeeeereereeees 22

CN | sri socccececcctacceticeeccentcacacteerensmsnasenineinenbinatenapiaanole 23

(v)

CASES CITED PAGE NUMBER

Grunewald v. United States,

353 U.S. 391, 399-406, 77 S.Ct. 963, 971-75,

ey, FRR IT at anal 10, 20, 21, 22

lanelli v. United States,

420 U.S. 770, 777,

95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975) ...cccccccccceseseeeeeee 16

7

336 US. 440, 442, 69 S.Ct. 716,

717, 93 L.Ed. 790 (1949) cocccccccc.cccesescccscoccooooceeoe 10, 20, 21, 22

Pinkerton vy. United States,

328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.

ae. ee 8, 10, 18, 19, 20, 22, 23

U.S. v. Borelli,

336 F.2d 376, 384 (2nd. Cir. 1964),

cert. denied, 379 U.S. 960, 85 S.Ct. 647,

13 LR Se (IFO siete cnccnsccitentastnstnnonpasincredeinianipitiesa 17

United Stat Davis,

FSS Fickle Sah Ae GRE BITOD vosissinecvecniscctinapuetnansiaiainaiia 18, 20

UR Re ee ee | ey ) ce eRe 17

U.S. v. Kramer, 289 F.2d 909 (9th Cir. 1961) 0.0... ee eeeeeeeeeeeee 20

US. v. Kriston, 508 F.2d 309 (3rd. Cir. 1975) ..........:sssssssesseeees 17

471 US. 130, 144-45,

105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99 (1985) ................... 21

United States v. Nelson, 599 F.2d 714 (Sth Cir. 1979) .............. 20

United States v. Perez,

489 F.2d 51, 61 (Sth Cir.1973),

cert. denied, 417 U.S. 945,

94 S.Ct. 3067, 41 L.Ed.2d 664 (1974) oo eee 16

(vi)

554 F.2d 36, 38-39 (2nd Cir.1977)

SON at hee ae 17

GO IAG. 10 (ed Cr, 1992) csscecesceceeeeonconscccccccccccccceee 18, 20

US. v, Sperling, 506 F.2d 1323 (2nd Cir. 1974) «00.2... 18,19

U.S. y. Willner, 523 F.2nd 68, 72 (2nd Cir. 1975) ...scsccssssessesse 21

SESS Se SS ON ea eRe TAC 1.2.17

VEY OI” RNs eR int Ne aR Re aE Se 12.17

paiaeiey a ee 2.11.15

(vii)

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF JURISDICTION

The is a Petition for a Writ of Certiorari from a final

decision of the United States District Court for the Middle District

of Florida in a criminal case and a decision of the 11th Circuit

Court of Appeals of the United States affirming the conviction and

sentence on October 4, 1995 without written opinion and denying a

Petition for rehearing on November 21, 1995. Therefore, this court

has jurisdiction to entertain this Petition pursuant to 28 U.S.C.

1291 and Rule 10 (a) and (c), Supreme Court Rules.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The 5th Amendment to the United States Constitution.

The Code of Federal Regulations, 12 CER 336.18

On September 28, 1993 the Petitioner James M. Claassen

(hereinafter referred to as James Claassen) was charged by indict-

ment, along with his father, D. Richard Claassen, with one count of

conspiracy to make false, fictitious and fraudulent statements and

representations to a department or agency of the U.S. Government

in violation of Title 18 U.S.C. 371 (Count I) and two counts of

knowingly and willfully making false, fictitious and fraudulent

representations of material facts to an agency of the U.S. Govern-

ment in violation of 18 U.S.C. 1001 and 2 (Counts II & III). The

charges stem from documents submitted to the Resolution Trust

Corporation during the qualification and participation at an RTC

Auction by the father Richard Claassen and the purchase of some

property, the Anthony Street duplex, at this RTC Auction by

Richard Claassen.

Trial by jury commenced on December 6, 1993, before the

Honorable Francis J. Boyle, United States District Judge. On

l

ee ae Oe ERE eee ee ee ee eee

December 10, 1993, Judge Boyle granted a judgement of acquittal

in favor of Defendant James Claassen only as to James Claassen’s

aiding and abetting alleged in Counts II and III and the substantive

violation alleged in Counts II and III, but submitted all three counts

to the jury. (R10:196). The jury returned a verdict on December

11, 1994 finding James Claassen and Richard Claassen guilty on

Counts I, II and Ill (R11:62-63). On December 13, 1994, the jury

returned a special verdict of forfeiture ordering the Anthony Street

property be forfeited to the U.S. Government (R12:43). On March

3, 1994, the Petitioner was sentenced to thirty-six (36) months of

probation and 180 days of Home Detention (R13:38-39). The

Petitioner has finished his term of Home Detention and is currently

on probation. This conviction was affirmed without a written

decision on October 4, 1995 and a Petition for rehearing was

denied on November 21, 1995 by the United States Court of

Appeals, 11th Circuit.

B. Statement of the Facts

1. The Indictment

The indictment in Count I on September 24 and 28, 1991

alleged a conspiracy in violation of Title 18 U.S.C. 371; to make

false, fictitious and fraudulent statements and representations and

to make and use false writings knowing the same to contain

material false, fictitious and fraudulent statements and to make and

use fa!se writings and documents knowing the same to contain

material false, fictitious or fraudulent statements in violation of

Title 18 U.S.C. 1001.

The court did not submit the indictment to the jury and

only submitted the essential elements of the conspiracy that it was

a conspiracy to make false statements on September 24, 1991 and

September 28, 1991 along with “Overt Acts” (R11:37-39). The

specific acts that were false were not presented to the jury as the

court generally charged on 18 U.S.C. 1001. The “manner and

means” paragraphs were not read to the jury.

The indictment also alleged that it was the policy of the

FDIC that any FDIC employee, the employee's spouse or depen-

dent child, or members of the employee's immediate household

should not, directly or indirectly, purchase any property which the

FDIC or RTC (emphasis added) held in its capacity as receiver,

liquidator, or liquidating agent of the assets of the insured deposi-

tory institution, regardless of how the property was sold (R1-1:4-7)

(The prosecutor on his own amended 12 C.F.R. 336.18 by adding

the word RTC).

In Count II and III of the indictment it was alleged that the

Appellants “aided and abetted by each other” knowingly and

willfully caused to be made false, fictitious and fraudulent material

facts and used documents and writings which themselves were

fraudulent and contained false and fraudulent statements and

material facts on September 24 and 28, 1991.

It was alleged in Count III that among the false statements

executed on September 28, 1991 was:

A Bidders Disclosure of RTC Employee Interest Form

dated September 28, 1991 on which D. Richard Claassen

certified that he had no family members that had an interest,

direct or indirect, or any presently contemplated future trans-

action in the acquisition of the property located at 2802 An-

thony Street (emphasis added).

During discovery in this case, the government was re-

quested to provide the basis for the prohibitation of an FDIC

employee buying at a RTC auction, and they only provided docu-

ments based upon the Code of Federal Regulations. None of the

materials supplied was a iegal restriction on an FDIC employee

buying RTC property during the time of this offense in 1991(See

Appendix).

The Petitioner, prior to trial, filed a Motion and Trial

Memorandum, seeking to exclude this inaccurate policy allegation

from the opening statements, and from the trial as evidence. The

court prohibited the government from going into this issue because

it was not relevant. The Prosecutor, despite the court's ruling,

argued this erroneous FDIC policy in opening and closing, and

played a tape recording of a hearsay witness, which involved this

erroneous policy. This heresay witness, Mr. Yogman, had testified

in a video deposition, as to what Jessica Claassen, the wife of the

Petitioner, had told him about her husband. The court had granted

objections to this heresay testimony which related to Petitioner

James Claassen, and a possible restriction in buying property.

Despite the court having sustained objections made by the

Petitioner concerning heresay, and the testimony was non-respon-

sive, the Prosecutor played before the jury this testimony. (R:7:30-

31, 65-66, 97-100, 101-103, 108:R:8:6, 10-12, 14-15, 17-22, 61-

68; R:9:13-17; R:2:-91:21-22). The court had placed the responsi-

bility on the Prosecutor to accurately match the tape recording of

the video of Yogman's testimony with the court's rulings. (R:9:13-

17). During the trial the record will show that time and time again

the Prosecutor attempted to present evidence that the court had

sustained objections to, and the court had to inform the Prosecution

of the duty to perform Justice.

Also prior to trial and after James M. Claassen submitted a

Motion and a Trial Memorandum (R1-72:7) that there was no

regulation prohibiting an FDIC employee, such as James Claassen,

from participating at an RTC Auction and that one of the alleged

falsities in Count III would confuse and mislead the jury because

the certification concerned RTC employment and was labeled

“Bidders Disclosure of RTC Employee Interest’, the government

moved to strike this alleged false representation from the indict-

ment. (R5:6-7).

In this case, there was no evidence presented that James

Claassen had inside information concerning the property involved

in the case, was working on auctions or RTC property or had any

knowledge related to issues in the case because of his position with

the FDIC. Even James Claassen, on the basis of his income, could

have qualified to buy at the RTC Auction.

2.

Petitioner James Claassen received a career conditional!

appointment as a Bank Examiner Trainee on April 8, 1991

(R6:118) (Government Exhibit 42 & 43). Almost one year later he

was promoted to Bank Examiner Assistant, grade GG7, on April 5,

1992 (R6:118) (Government Exhibit 44). At the time of the of-

fense, James Claassen’s salary was only about $24,000.00 per year

(Government Exhibit 43 & 44) . James Claassen lived in Tampa,

Florida with his wife Jessica Claassen (R10:64).

D. Richard Claassen (hereinafter “Richard Claassen”) was

the father of James Claassen and was 66 years of age at the time of

trial (R10:54) and in poor health (R10:97). Richard Claassen

testified that he and his wife hoped to find a home that would cost

less to live in because the mortgage payments were too high at his

Fort Pierce home (R10:54) and he intended to find a place to live

near Tampa or Winter Haven (R10:64 & 93) close to his 86 year

old mother who lived in Winter Haven and was in extremely poor

health (R10:64 & 93).

Richard Claassen made it a practice over the years to have

deeds prepared to his son James Claassen, which were never

recorded prior to September of 1991, in an effort to avoid involv-

ing this property in probate proceedings (R10:111-113).

3. The Facts Presented At Trial As They Relate To

James Claassen On Or Before September 28, 1991.

4

On September 24, 1991 James Claassen was not present

with his father Richard Claassen when Richard Claassen submitted

Statements to the Neighborhood Housing Services of Fort Pierce

(hereinafter the NHS) including IRS returns and a Prequalification

Certification Form and James Claassen was never informed or

consulted about this process (R10:91).

At the RTC Auction in fampa, Florida on September 28,

1994, James Claassen was present but never consulted with

Richard Claassen before the Auction Sales Contract (Government

Exhibit 7) and the Bidders Registration Certification (Government

Exhibit 8) were signed by Richard Claassen (R10:101).

4. The Facts Presented At Trial As They Relate to

Richard Claassen and his son James Claassen spent a

weekend fixing up one side of the duplex so that it was livable

(R10:74). One part of the duplex was to be rented. Richard

Claassen had informed James Claassen, after the auction, that if he

(James) would look after the Anthony Street property and help

Richard and his wife get around when they got to Tampa, James

Claassen would get the property when he died (R10:85). Two

months after the September 28, 1991 RTC Auction, Richard

Claassen made out an unrecorded deed dated December 1, 1991

deeding the Anthony Street property to his son, James Claassen

(Government Exhibit 22) (R10:85). Richard Claassen did not

intend to transfer ownership of the Anthony Street property when

he made out the deed as he had previously done with other unre-

corded deeds (R10:86). Sometime in December, 1991, Jessica

Claassen picked up the deed when she mistakenly assumed that she

was supposed to take it (R10:86). Richard Claassen had requested

that insurance be obtained for the Anthony Street duplex (R10:86).

In November 1991, a State Farm employee testified that James

Claassen contacted him regarding insurance on a property owned

by his father, the Anthony Street duplex (R8:36). An insurance

policy was issued by State Farm on December 3, 1991 in the name

of Richard Claassen (R8:71). More than three months after the

auction and after the closing that occurred in November, 1991, a

representative from State Farm believed that James Claassen

contacted him somewhere around January 7, 1992 informing him

about an ownership change in the Anthony Street property and the

insurance policy should be changed (R8:89). In the State Farm file

was a copy of the unrecorded deed dated December 1, 1991

deeding the property from Richard Claassen to James Claassen

5

(Government Exhibit 22) along with an assignment of the insur-

ance policy (R8:31).

The electricity to the Anthony Street duplex was turned on

in the name of Jessica Claassen on more than one occasion for

short periods of time in November and December of 1991 (R7:77-

78). Jessica Claassen showed and rented one of the Anthony Street

duplexes in November of 1991 to two handicapped adults (R7:95-

97). Two checks written on the account of Human Development

Center were given to and endorsed by Jessica Claassen as a deposit

on the Anthony Street property and deposited in the joint account

held by Jessica and James Claassen (Government Exhibit’s 15 &

16) (R8:79).

Almost six months after the Auction of September 28,

1991, James Claassen submitted an FDIC Disclosure Statement

which covered the full year of 1991 representing that he had an

interest in the Anthony Street property (Government Exhibit 46)

(R9:44). Agent Hanby, the case agent who summarized the FDIC

Disclosure Statement, testified that he thought that an interest

where you are managing a property for rental purposes should be

listed on the disclosure (R9:116 & 118). The FDIC Disclosure

Statement required FDIC employees to list property that they may

have an interest in even if there is no income received (Govern-

ment Exhibit 46) (R9:117).

Heresay Ruled Inadmissable by the Court

During the trial, counsel for James Claassen objected, on

numerous exhibits and contentions of the government, specifically

the statements of Jessica Claassen allegedly made to Mr. Yogman,

were inadmissible because Jessica Claassen was not a member of

any conspiracy, the statements were not made during the course of

or in furtherance of any conspiracy and said statements were

heresy and irrelevant (R7:30-31) (R8:18-22). The court specifi-

cally informed the prosecution and had detailed discussions with

the prosecution that there was no evidence that Jessica Claassen

was an agent for her husband James Claassen (R8:18-20). The

court specifically rejected the government’s contention that Jessica

Claassen was a co-conspirator in the case as early as June or July,

1991 (R8:21-22) and specifically informed the prosecutor:

Now, I hope that you’ll listen carefully, because you

had some problems on this yesterday and I don’t want to have

any further problems......1 will allow such part of the deposition

as relates to Jessica’s relationship with Richard Claassen in

6

terms of dealing with the property at 2208 (sic) Anthony Street,

period. (R8:22).

Joseph Yogman was too sick and incapacitated to come to

the courtroom to testify (R7:28-29), however, a video was taken of

his testimony and certain parts of this video were played in front of

the jury (R9:7). Over the objection of the defendants (R8:3-22), the

court ordered the Yogman video to be edited and played for the

jury so that only such part of the deposition as relates to Jessica

Claassen’s relationship with Richard Claassen in terms of dealing

with the Anthony Street property be shown to the jury (R8:22).

After the video was started, the judge ordered the video stopped

because it did not comply with his rulings on the objections (R9:7).

The court informed the prosecutor that the government had played

video taped testimony of Mr. Yogman that was ruled non-respon-

sive (R9:14-15). The court specifically indicated that the questions

and answers on page 21 and on page 22 (R2-91:21 & 22) were not

responsive and should have been deleted from the video (R9:13-

14). The government was instructed to turn the audio down during

certain portions of the video tape to comply with the trial court’s

rulings (R9:17). Again, the government played the same non-

responsive heresy testimony of Jessica Claassen (R2-91:21-22). A

transcript of Mr. Yogman’s deposition is contained in the record on

appeal (R2-91:1-69), however, an exact transcript of the video, as

it was played for the jury was not taken by the court reporter

(R9:34).

Jessica Claassen came to Mr. Yogman in May of 1991 to

place her real estate license with him (R2-91:21). Mr. Yogman said

that his relationship with Jessica Claassen was for “one transac-

tion” (R2:91-25), to purchase RTC property (R2-91:21). According

to Mr. Yogman, Jessica Claassen said “Well I can’t” and Mr.

Yogman said, “Well you’re married aren’t you? Why can’t your

husband?” “She said he can’t because he works for some com-

pany” (Non-responsive and heresay ruled inadmissable R2-91:21-

22). At closing argument the prosecutor argued the Petitioner was

prohibited from buying based on this statement. It could not be for

her husband because he was working (R2-91:24). Mr. Yogman

said that Jessica told him that her father was contemplating buying

it (R2-91:24).

6. Trial Court’s Findi Moti for Judee-

ent of i t ions.

At the close of the government’s case in chief, both

defendants made a motion for judgement of acquittal arguing

7

insufficiency of the evidence (R10:145-179). James Claassen

submitted a written Memorandum in support of this motion (R1-

81). The court denied the motion for judgement of acquittal as to

the conspiracy count but reserved on the motion for judgement of

acquittal regarding counts two and three as to James Claassen and

Richard Claassen (R10:179). At the close of all the evidence, the

judge ruled on the motions for judgement of acquittal denying the

motions as to the conspiracy count, although the evidence against

James Claassen was marginal (R10:195). The motion for judge-

ment of acquittal was denied as to Richard Claassen on counts two

and three (R10:195-196). Judgement of acquittal was granted as to

James Claassen for counts two and three as to aiding and abetting

and the substantive violation alleged in counts two and three

(R10:196). However, the judge indicated that because of the

Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.

Ed. 1489, 1946) jury instruction, he was required to submit the

issue to the jury (R10:196-197).

During the charge conference and in defendant’s trial

memorandum (R1-72), counsel for the defendant raised the con-

cern of the “overt acts” alleged in the indictment after September

28 were not overt acts because the conspiracy was completed but

was told by the Court to argue it to the jury (R10:10). Counsel

also raised an objection to the Pinkerton instruction (R10:17

During deliberations, the jury submitted a written question

which read: “Can the implication of a conspiracy be drawn from

the results of facts and evidence after September 28, 1991?”

(R11:61). The trial court responded with “You may consider all of

the evidence introduced to determine whether or not a conspiracy

existed” (R11:61).

The jury returned a verdict of guilty as to both defendants

on all three counts (R11:62-63).

REASONS FOR GRANTING THE PETITION

SUMMARY OF ARGUMENT

1. The government’s statements and opinions in opening and

closing objected to by the Petitioner and held inadmissible by the

court and the playing of heresay testimony by the Prosecution

regarding an unsubstantiated FDIC policy allegedly prohibiting

James Claassen from participating in an RTC auction, which was

not admitted into evidence, but played anyway twice by the

prosecutor, unduly prejudiced James M. Claassen and deprived

8

him of Due Process and a Fair Trial.

There was no prohibitation based on any law or regulations

prohibiting the Petitioner because he worked for the FDIC from

bidding at an RTC Auction. The District Court did not permit any

evidence of the FDIC policy because it was irrelevant. The govern-

ment argued it anyway, even though there was no law or regulations

and no basis and as such, deprived the Petitioner of a fair trial. This

argument and opinion of the government was severely prejudicial to

the Petitioner.

Il. The indictment was based upon inaccurate and incorrect grand

jury testimony concerning nonexistent FDIC regulations allegedly

prohibiting James Claassen from participating in an RTC auction.

At the Grand Jury, the government presented inaccurate

information through the testimony of Agent Hanby that an FDIC

employee such as James Claassen was prohibited from bidding at an

RTC Auction. This was inaccurate and incorrect because there was no

regulation and the government could present no regulation at trial.'

The words “RTC” were added to regulations that were in existence and

as such, the indictment in the case was in effect an attempt to amend

the Code of Federal Regulations to make it appear that the Petitioner

had some type of motive to commit a crime. As such, the Petitioner

was denied Due Process and a fair trial.

Il. The evidence introduced at trial was insufficient to allow a

reasonably minded juror to find that a conspiracy existed between the

defendants on the date of the alleged conspiracy, September 24, 1991

and September 28, 1991. The mere presence of James Claassen at an

auction with his father was insufficient evidence for the jury to find

that there was a conspiratorial agreement, that James Claassen was a

member of a conspiracy and that James Claassen knew that the essence

of the conspiracy was to make false statements.

Acts that occurred after the central purpose of the conspiracy

was achieved, such as taking out insurance, deeding the property,

making a disclosure statement of a management interest were insuffi-

cient acts for a reasonable jury to infer that months earlier James

Claassen, on September 24 & 28, 1991 agreed to conspire, was a

' In the Governments’ brief in the 11th Circuit Court of Appeals, they argued outside

the record and cited the Pre Sentence Report as authority for the prohibitation. This

was only what the agent told the probation office. It was ironic that the Petitioner in

closing argument was ethically prevented from informing the jury that the FDIC

regulation did not prohibit the petitioner because it was not in evidence.

member with his father in a conspiracy and intended and had knowl-

edge that his father was going to make false statements. A conspiracy

cannot be established by piling inference upon inference and using acts

that occurred after the conspiracy was completed.

In this case, it was improper, confusing and error to give the

Pinkerton instruction because the jury had to infer a conspiracy from

the acts committed after the substantive acts were committed while at

the same time, the court is instructing the jury under Pinkerton to infer

the substantive crimes were committed because the Petitioner was a

member of the conspiracy. There was no evidence that it was reason-

ably foreseeable that James Claassen knew his father would have had

to make false statements and there was insufficient proof that James

Claassen was a member of a conspiracy to apply the Pinkerton charge.

It is submitted that, the Pinkerton charge should only be applied to

cases involving major participants because of the potential Due Process

limitations on the Pinkerton doctrine in cases involving attenuated

relationships between the conspirator and the substantive crime.

Further, the District Court, uniquely granted a judgement of

acquittal finding the Petitioner was not guilty of aiding and abetting,

but the Court permitted the Pinkerton question to go to the jury. This

finding by the District Court should have by the doctrine of collateral

estoppel prevented the application of the Pinkerton doctrine.

The District Court, in instructing the jury, failed to redact

“overt acts” that occurred after the conspiracy was terminated and

denied the Petitioner s jury instruction which would have assisted the

jury in determining which acts were made in furtherance of a con-

spiracy. Indeed, the District Court did not specify which acts were

alleged to be false permitting the jury to speculate innocent acts of

Jessica Claassen inferred a conspiracy and or the petitioner was

responsible for innocent acts after September 28 under Pinkerton.

Because of the instructions the defendant was denied a fair trial.

It is submitted that the holdings by this court in Krulewitch v.

United States, 336 U.S. 440, 4342, 69 S.Ct. 716, 717, 93 L.Ed. 790

(1949) and Grunewald v. United States, 353 U.S. 391, 399-406, 77

S.Ct. 963, 971-75, 1 L.Ed.2d 931 (1957) holding that a conspiracy is

completed when the object of the conspiracy has terminated are in

direct conflict with jury instructions under Pinkerton v. United States,

328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) placing vicarious

liability on a defendant in a criminal case. As applied in this case,

once the false statements were made on September 24 and September

28, 1991, the Petitioner should not have been held responsible for acts

occurring after these dates and he was denied Due Process and a fair

10

————

trial because of the Pinkerton jury instruction.

IV. The experienced prosecutor intentionally argued to the jury

that the petitioner was prohibited from buying at the RTC auction even

though the court found this to not be relevant and played two times

heresay testimony of Mr. Yogman held inadmissable as an effort to

give a reason for the Petitioner to be involved in the false statements.

At the Grand Jury the same Prosecutor amended the Code of Federal

Regulations adding an alleged RTC auction buying restriction knowing

that there was no law as authority. This continued throughout the trial

and the Court of Appeals should not have sanctioned these unethical

trial tactics requiring this Court to exercise the power of supervision

informing the Department of Justice these egregious trial tactics will

not be tolerated.

ARGUMENT

I. THE GOVERNMENT?’S USE AT TRIAL OF AN UNSUB-

STANTIATED FDIC ETHICAL POLICY ALLEGEDLY PRO-

HIBITING JAMES CLAASSEN FROM PARTICIPATING IN AN

RTC AUCTION, WHICH WAS NOT ADMITTED INTO EVI-

DENCE, AND NOT BASED UPON FEDERAL REGULATIONS

UNDULY PREJUDICED JAMES M. CLAASSEN

Before trial the theory behind the government’s prosecution of

the defendants was that James Claassen, as an FDIC employee, was

ethically prohibited from purchasing property at an RTC Auction

because of his position with the FDIC. The government argued that

this prohibition was James Claassen’s “motive” for conspiring with his

father to make false statements to the RTC (R5:8). However, the

Defendant James M. Claassen’s First Motion in Limine (R1-53:1-6)

presented the court with a full overview of the Code of Federal Regula-

tions regarding who may and may not participate in RTC Auctions

(V1-53). According to the CFRs regulating FDIC employees and

RTC 7 is absolutel hibiti inst FDIC

ticipating i RTC Aucti 12 CER. 336.18: S

' ii

The Honorable Francis J. Boyle indicated that Defendant’s

First Motion in Limine (R1-53) regarding FDIC employees participat-

ing in RTC Auctions was meritorious (R5:7). Judge Boyle stated that

the FDIC policy, was “irrelevant” to the charge of making false state-

ments and conspiracy to make false statements to the U.S. Government

(R5:8-9). The Trial Court Judge then directed the government not to

refer to the policy in his opening (R5:10).

However, during the government’s opening, the government

Stated:

1]

I will prove to you the evidence will show in this case that

in the summer of 1991, James M. Claassen, defendant, the son,

wanted to purchase an RTC property and that he called the FDIC

— he was a bank examiner at that time — and that he called his

employer and asked if he could purchase an RTC property at an

RTC auction. The evidence will show that his employer said no.

(R5:17).

The government erroneously suggested that as an employee of

the FDIC, James Claassen was not allowed to purchase property at the

RTC Auction, referring to the FDIC policy. In fact, James Claassen

was allowed to participate at the RTC Auction according to the Code of

Federal Regulations governing FDIC employees, cited previously.

Further, the government failed to present any evidence during the trial

that there was an FDIC or an RTC regulation prohibiting James

Claassen, as an FDIC employee, from purchasing property at an RTC

Auction - because no such regulation was in effect. The only refer-

ence to this theory came from the often confused Mr. Yogman who was

allowed to give “double-hearsay” testimony, inadmissible under any

conspiracy theory, that Jessica Claassen told him that, “He can’t

because he works for some company” (R2-91:21). (This statement

came into evidence even though the District Court had sustained an

objection and found it to be non-responsive (R9:13-14). This comment

may have meant that he didn’t have time because he worked for some

company or that he made too much money at this company and didn’t

qualify to participate in the Auction. Mr. Yogman made no reference to

a policy or rule prohibiting James Claassen from participating. How-

ever, in closing the government remarked:

Mutual understanding. The evidence in this case, I submit

to you, is that James was and (sic) F.D.I.C. employee. And as

Jessica told Mr. Yogman (sic), he can’t participate because of the

company he works at. He can’t, James can’t, go to the R.T.C.

Auction. (R10:205).

The government stated further in closing: James and D.

Richard, and the government submits to you also Jessica, had a

mutual understanding to get a property which neither of them —

neither James or D. Richard — were entitled to gety........... .James

wasn’t entitled to this property and neither was D. Richard

(R10:211). But for the comments and opinion of the government in

opening and closing, the jury would have had no reason to infer that

James Claassen had any motive to conspire with his father to make

false statements to the RTC. Indeed, these comments were an attempt

by the prosecution to give the jurors an opinion, not based upon any

evidence or law, irrespective of the court’s admonishment that it was

not relevant.

12

The prosecution attempted to base his argument on what

Mr. Yogman was allegedly told by Jessica Claassen. We submit

that the government was not making a reasonable argument and it

was not a reasonable interpretation of anything Mr. Yogman

claimed Jessica Claassen said to try to argue that James Claassen

was prohibited from going to the RTC Auction. Not only was it an

unreasonable interpretation, it was an effort by the government to

amend the Code of Federal Regulations (CFR) and legislate a

prohibitation that was not in existence and still is not in existence.

Further, not only did the introduction of Mr. Yogman’s testimony

violate the rules against hearsay, this testimony violated the judges

direct order to limit the Yogman deposition to only “such part of

the deposition as it relates to Jessica Claassen’s relationship with

Richard Claassen in terms of dealing with the property at 2208

(sic) Anthony Street, period.” (R8:22).

The statements and insinuation made by government in

opening and closing were made knowing that there was no FDIC

regulation prohibiting FDIC employees from purchasing RTC

property at an RTC Auction. Cir. 1982). Without these comments

by the government, the jury would not have had any information to

infer that James Claassen was motivated to conspire with his father

to make false statements to the government. The comments

improperly infer, without any evidence in support, that James

Claassen was trying to circumvent an FDIC policy and acquire title

to the RTC property: the same theory the government presented to

the Judge before the judge ordered that there would be no refer-

ence to the FDIC policy in opening (R5:8-10). The comments

clearly affected the substantial rights of James Claassen and

violated his Due Process rights.

A juror listening to the government may have assumed that

James Claassen was prohibited from purchasing property from the

RTC because the government said, in opening, that when James

Claassen called his employer and asked if he could purchase an

RTC property at an RTC Auction, his employer said no (R5:17).

This testimony by the prosecutor undermined the presumption that

every defendant is entitled to, the presumption of innocence until

sufficient evidence is provided to support a guilty verdict. When a

prosecutor states facts outside the record in such a way as to

prejudice the defendant, a new trial is required. Therefore the

petitioner was denied Due Process and a Fair Trial.

13

Il. THE INDICTMENT WAS BASED UPON INACCU-

RATE AND INCORRECT GRAND JURY TESTIMONY

CONCERNING NONEXISTENT FDIC REGULATIONS

ALLEGEDLY PROHIBITING JAMES CLAASSEN FROM

PARTICIPATING IN AN RTC AUCTION AND DEPRIVED

THE PETITIONER HIS DUE PROCESS CONSTITU-

TIONAL RIGHTS AND HIS 5TH AMENDMENT RIGHT TO

BE INDICTED BY A GRAND JURY ON TRUTHFUL AND

NOT FALSE TESTIMONY.

During the trial, James Claassen was first provided a copy

of the Grand Jury testimony of Agent Hanby. In the Grand Jury

testimony, this lead investigator, Agent Hanby, inaccurately and

incorrectly testified that the FDIC policy prohibited FDIC employ-

ees from participating in RTC Auctions But for this inaccurate

testimony, there would have been insufficient grounds to include a

conspiracy count in the indictment. This issue was argued in the

Renewal of Motion for Judgement of Acquittal or, in the Alterna-

tive, Motion for a New Trial (R2-105, R2-113) and denied (R4:40).

James Claassen submits that it was error in not dismissing this case

because of the improper testimony given before the grand jury.

The Grand Jury testimony of Agent Hanby contained

statements regarding the “illusory FDIC policy” that were facially

unsupported by any laws or regulations. Agent Hanby made

several references throughout his testimony to the fact that James

Claassen was unable to purchase any RTC property because he was

an employee of the FDIC:

Our investigation has revealed that an FDIC employee

by the name of James Claassen who was not supposed to be

able to purchase any RTC auctioned properties used his father,

Richard Claassen, as a nominee or straw buyer to purchase a

property for James Claassen. The property was purchased

using some false statements, false information from the RTC,

and subsequently deeded over to the FDIC employee, James

Claassen.

ae * *” *

It was the policy of the FDIC that any FDIC employee,

the employee’s spouse or dependent child or members of the

employee’s immediate household should not, directly or indi-

rectly, purchase any property which the FDIC or RTC held in

its capacity as receiver, liquidator or liquidating agent of the

assets of an insured depository institution, regardless of how

the property was sold. (V3-116:Grand Jury Testimony)

14

Based wpon the Grand Jory vestenetry vi Agetn Trarlvy, the

indictment alleged:

It was the policy of the FDIC that any FDIC employee,

the employee’s spouse or dependent child, or members of the

employee’s immediate household should not, directly or indi-

rectly, purchase any property which the FDIC or RTC held in

its capacity as receiver, liquidator, or liquidating agent of the

assets of an insured depository institution, regardless of how

the property is sold (R1-1:4). There was no Code of Federal

Regulations setting forth this policy and the prosecutor simply

added the word “RTC” to an existing FDIC Code of Federal

Regulation, 12 C.F.R. 336.18. There was no evidence introduced

at trial to support this allegation. At the Grand Jury, the govern-

ment, by prosecutorial whim, disregarded the actual regulations

and, in effect, amended the Code of Federal Regulations by adding

the word “RTC” to make it appear that FDIC employees could not

bid on RTC property.

The Petitioner was deprived of his Due Process Rights to

be charged by an indictment based upon the law and not the

imagination of the Prosecutor.

INiA THE EVIDENCE INTRODUCED AT TRIAL WAS

INSUFFICIENT TO ALLOW A REASONABLY MINDED

JUROR TO FIND THAT A CONSPIRACY EXISTED BE-

TWEEN THE DEFENDANTS ON THE DATE OF THE

ALLEGED CONSPIRACY, SEPTEMBER 24, 1991 AND

SEPTEMBER 28, 1991.

James Claassen was charged with conspiring with Richard

Claassen to submit false statements to the RTC in violation of 18

U.S.C. 1001. There was insufficient evidence for a reasonable jury

to find beyond a reasonable doubt that Appellant James Claassen

knowingly and willfully engaged in a conspiracy to make false

statements to the U.S. Government and had knowledge that the

“essential nature” of the conspiracy was to make false statements

to the RTC. In order for a reasonable jury to find James Claassen

guilty of a conspiracy, the government must present evidence

sufficient to establish beyond a reasonable doubt 1) that a con-

spiracy to make or use false statements was willfully formed, and

was existing on September 24, 1991 and September 28, 1991, 2)

that Defendants willfully became members of the conspiracy, 3)

that one of the conspirators thereafter knowingly committed at

least one of the overt acts charged in the indictment at or about the

time and place alleged, 4) that such overt act was knowingly done

15

in furtherance of some object or purpose of the conspiracy as

charged (R11:30-31).

There was absolutely no evidence that Petitioner James

Claassen knew false statements were to be made by his father.

Even if James Claassen was an employee of the RTC, which he

was not, his father was not precluded from buying the RTC prop-

erty and his father did not have to make false statements to qualify

with the RTC. It would be outright speculation for anyone to infer

James Claassen knew that false statements would be made.

Conspiracy is an inchoate offense, the essence of which is

an agreement to commit an unlawful act. Ianelli v. U.S., 420 U.S.

770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). The con-

spirator must knowingly agree to join others in a concerted effort

to bring about a common end. US. vy. Perez, 489 F.2d 51, 61 (Sth

Cir.1973), cert denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d

664 (1974). In this case, the essence of the conspiracy was to

make false statements and there was no evidence that James

Claassen knew or agreed that false statements were to be made.

The government argued on opening and closing that Appellant

James Claassen had his father buy the property because he was

prohibited by an FDIC policy (R5:17 & R10:205 & 211). There

was no basis for the government arguing this as a motive because

there was no prohibition. James Claassen could have gone to the

RTC Auction himself and purchased the property because it was an

RTC Auction and not an FDIC Auction.

If a conspiracy did exist, the conspiracy would have

terminated upon the achievement of the criminal purpose

Krulewitch v. U.S., 336 U.S. 440, 442, 69 S.Ct. 716, 717, 93

L.Ed. 790 (1949); Grunewald v. U.S., 353 U.S. 391, 399-406, 77

S.Ct. 963, 971-75, 1 L.Ed.2d 931 (1957), the submission of the

false documents, September 24 & 28, 1991. Although the govern-

ment tried to argue that the “essential nature” of the conspiracy

was for James Claassen to ultimately “get” the Anthony Street

property, this is NOT criminal, unethical or forbidden and cannot

be the “criminal purpose” since the indictment charged a con-

spiracy to make false statements. It was not until arguments on

Motions for New Trial that the government attempted to character-

ize the case as a conspiracy to transfer (R4:7). In any event, the

government proved no facts that the “essential nature” of the

conspiracy was an agreement for the father to buy the property for

the Petitioner James Claassen.

16

US. v. Rosenblatt, 554 F.2d 36, 38-39 (2nd Cir. 1977)

was a case where the only evidence against the defendant was

actions after the completion of the conspiracy. In reversing a

conspiracy conviction the Court stated:

The problem in identifying the “essential nature” of the

conspirators’ plan often arise in cases in which knowledge is an

issue.

* ~ * *

Proof of the essential nature of the plan is required because

“the gist of the offense remains the agreement and it is therefore

essential to determine what kind of agreement or understanding

existed as to each defendant”. U.S. v. Borelli, 336 F.2d 376, 384

(2nd. Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13

L.Ed.2d 555 (1965). U.S. v. Rosenblatt, supra at 38-39.

In Rosenblatt, the Court found that the facts were insuffi-

cient to find that any conspiracy existed to defraud the United

States. The evidence showed that a co-defendant made false

entries at the Postal Service Headquarters and obtained eight

checks totalling over $180,000.00. The co-defendant then “laun-

dered” the checks through a checking account controlled by

Rosenblatt with the assistance of Rosenblatt. Rosenblatt kept 10%

of the face value of the checks for his services. Rosenblatt’s

conviction was reversed and the indictment dismissed since the

government failed to plead and prove an “agreement” on the

“essential nature” of the fraud. See also U.S. v. Kriston, 508 F.2d

309 (3rd. Cir. 1975); U.S. v. Kleiz, 515 F.2d 751 (3rd Cir.1975);

U.S. v. Davis, 533 F.2d 921 (Sth Cir. 1976). The government in the

case at bar has failed to prove that James Claassen and D. Richard

Claassen reached an “agreement” as to the “essential nature” of

any criminal conspiracy.

In a false statements case under 18 U.S.C. 371 and 1001,

similar to the case at bar, acts after the completion of the essential

nature and object of the conspiracy could not be viewed as acts in

furtherance of the conspiracy U.S. v. Roshko, 969 F.2d 9, 11 (2nd

Cir. 1992):

ceed the conspiracy terminated on October 29, 1984, the

date that the INS approved Meir’s application for a green

card; consequently, neither the Roshko-Gershkowich divorce,

nor Meir and Irene’s marriage, can be reasonably viewed as

overt acts in furtherance of the terminated conspiracy that had

ended when its object - the acquisition of Meir’s green card -

was achieved. U.S. v. Roshko, supra at 11.

17

ii

This theory was also applied in U.S. v. Davis, 533 F.2d

921 (Sth Cir. 1976) in which the Court held that where an indict-

ment alleged a conspiracy to knowingly and willfully make false

statements, the conspiracy had run its course with the submission

of the false statement to the department in question. The Court

went on to hold that the subsequent issuance of a contract by the

department in reliance on the falsification was not an overt act in

furtherance of the conspiracy, despite the contention that the

ultimate object of the conspiracy was to secure a payment under

the contract from the government.

The government failed to prove that a conspiracy to make

false statements was “willfully” formed and “existing” on Septem-

ber 24, 1991 and September 28, 1991 and the Petitioner should

have been granted a judgement of acquittal.

IIIB. THE TRIAL COURT ERRED WHEN INSTRUCTING

THE JURY BY USING THE “PINKERTON” INSTRUC-

TION.

The court, upon the urging of the government, gave the

jury an instruction which had originated in Pinkerton y. United

States, supra . In Pinkerton, there was no evidence that Daniel

Pinkerton had committed the substantive offenses, but it was quite

clear that the substantive offenses had been committed and that

they had been committed while Daniel Pinkerton was involved in a

conspiracy. Thus, the commission of the substantive acts were

inferred from Daniel Pinkerton’s involvement in the conspiracy.

1. IT WAS IMPROPER, CONFUSING AND ERROR TO

GIVE THE PINKERTON INSTRUCTION IN THIS CASE

DEPRIVING THE PETITION OF A FAIR TRIAL.

There are certain rare instances where there is no evidence

of a conspiracy, however, there is some evidence of the substantive

acts. It is possible that a conspiracy can be inferred from the

substantive acts and when a Court asks a jury to infer that the

Petitioner committed the substantive acts because he was in the

conspiracy, we are left with the proverbial, “which comes first, the

chicken or the egg”. This “reverse inference” is not what the

United States Supreme Court had in mind when the Pinkerton

instruction was given approval. It is these rare instances where it

is improper to give the “Pinkerton” instruction.

The impropriety of giving the “Pinkerton” jury instruction

when this “reverse inference” situation is present was specifically

addressed in United States v. Sperling, 506 F.2d 1323 (2nd

18

Cir.1974) wherein the court held that the Pinkerton jury instruction

should not be given as a matter of course. Sperling, supra at

1341 (emphasis added). The Sperling Court was presented with a

factual scenario wherein none of the Defendants were prejudiced

by the Pinkerton charge since there was overwhelming evidence to

support their convictions on the substantive charge.

However, the legal theory set out by the Sperling Court has

direct application in the case at bar since there was no evidence

introduced at trial indicating that James Claassen knew or intended

to participate in any conspiracy to submit false documents to the

U.S. Government. In fact, the evidence introduced indicated that

James Claassen had not submitted any documents to the govern-

ment, let alone false documents on September 28, 1991. In this

case, the jury may have erroneously used the evidence of the

substantive violations made by the father, Richard Claassen, to

infer back the existence of a conspiracy. Indeed, since the court

did not in the instructions specify what was false the prosecution

could use innocent acts to argue membership in the conspiracy. It

is highly possible that the jury may have attempted to infer back

the existence of a conspiracy from overt acts after September 28,

199] that were not criminal and alone, were insufficient for a

reasonable juror to find that there was a conspiracy. If the District

Court in this case could not have found that the evidence showed

James Claassen aided and abetted his father, no reasonable juror

could have found evidence that James Claassen had knowledge

that false statements were to be made. Both aiding and abetting

and conspiracy require knowledge

During deliberations, the jury came back with a question

as to whether they could imply a conspiracy from acts after Sep-

tember 28, 1991. (R11:61) and the court informed them that they

could use all of the evidence. This catch 22 put James Claassen in

the middle of the inferring of a conspiracy and the inferring of his

involvement in the substantive acts from the Pinkerton instruction.

This is exactly the type of case the Sperling court was concerned

about when it held the Pinkerton charge should not be given as a

matter of course.

19

2. THE DISTRICT COURTS JUDICIAL DETERMINA-

TION AND FINDING THAT JAMES CLAASSEN WAS NOT

GUILTY OF AIDING AND ABETTING HIS FATHER IN

THE COMMISSION OF THE SUBSTANTIVE OFFENSES

COLLATERALLY ESTOPS THE APPLICATION OF THE

PINKERTON DOCTRINE.

At the close of the evidence, the trial court granted James

Claassen’s Motion for Judgement of Acquittal as to the substantive

counts only . However, the case was submitted tc the jury with the

Pinkerton instruction and the jury returned a verdict of guilty as to

the conspiracy count and the two substantive counts for James

Claassen. We submit that there should have been a collateral

estoppel because the finding that there was no aiding and abetting

had to be based upon a common element, that is there were no acts

or evidence to show that James Claassen intended to or knew that

false statements were to be made.

Counsel is aware that “aiding and abetting” and “con-

spiracy” possess different elements that must be proven and a

finding on one would not preclude a prosecution because of double

jeopardy. However, under collateral estoppel, a factual finding

may not be proven by asserting facts necessarily determined at the

first trial. U.S. v. Kramer, 289 F.2d 909 (9th Cir. 1961); United

States v. Nelson, 599 F.2d 714 (Sth Cir. 1979). In this case we

submit that the District Court, by granting the directed verdict on

aiding and abetting, should have not used the Pinkerton doctrine to

override the fact finding.

a THE COMBINATION OF THE USE OF THE

PINKERTON INSTRUCTION AND THE FAILURE TO

REDACT ACTS THAT OCCURRED AFTER THE COMPLE-

TION OF THE CONSPIRACY ON SEPTEMBER 28, 1991

WAS ERROR RESULTING IN THE DENIAL OF A FAIR

TRIAL.

Count I of the indictment alleges that on or about Septem-

ber 24, 1991, and on or about September 28, 1991, the Defendants

conspired to make or use false statements to an agency of the

United States (R1-1:4). The ultimate object of the conspiracy was

to make or use false statements to the United States on September

24, 1991 and September 28, 1991. A conspiracy ends when its

criminal purpose has been accomplished. Krulewitch v. U.S..,

supra; Grunewald v. U.S., supra. See also e.g. U.S. Davis,

supra; U.S. v. Roshko, supra.

20

Defendant James Claassen submitted a proposed jury

instruction (R1-88) which read:

A conspiracy is held to be terminated upon arrest of the

conspirators or upon the accomplishment of the criminal

purpose. In support, the cases of Krulewitch v. U.S., supra, and

Grunewald vy. U.S., supra were cited. The trial court erroneously

denied this proposed jury instruction (R11:4) and caused even

greater confusion as to when the conspiracy ended.

The government alleged a series of “overt acts” which

were read to the jury as “overt acts” (R11:35-37), however, only

some of the acts alleged by the government can be viewed as

occurring “in furtherance of a conspiracy”. Appellant's objection

to these numerous allegation of “Overt Acts” were raised in

Appellant James Claassen’s Trial Memorandum (R1-72:3-4) and

again at the charge conference (R10:10-11). “Overt Acts” starting

“prior to September 24, 1991” (R11:35) and continuing to “De-

cember 1, 1991” were presented to the jury (R11:37) even though

the alleged conspiracy terminated on September 28, 1991 when the

last allegedly false document was submitted to the RTC. A trial

court may strike irrelevant portions of the indictment, including

“overt acts” from a conspiracy count. See United States v. Miller,

471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99

(1985); United States v. Wilner, 523 F.2d 68, 72 (2nd Cir. 1975).

It was reversible error for the court to have instructed the

jury on the “overt acts” occurring after the submission of the

allegedly false documents (September 28, 1991) since these acts

clearly occurred after the termination of any “conspiracy”. The

jury had to be confused. It is impossible to determine which “overt

acts” the j jury used to determine whether there was a conspiracy.

However, it is evident that the jury did consider the acts occurring

after the termination of the conspiracy. During deliberations, the

jury submitted a question which asked: “Can the implication of a

conspiracy be drawn from the results of facts and evidence after

September 28, 1991?” (R11:61). The trial court responded with

“You may consider all of the evidence introduced to determine

whether or not a conspiracy existed” (R11:61).

Did a juror then, after hearing this instruction, decide that

the mortgage application made by Richard Claassen, held up by

the prosecutor in closing and not a charged crime (R'1!:25), was a

crime that could be used to infer a conspiracy? The jury instruc-

tions deprived James Claassen of a fair trial because the jury was

not clearly instructed on which acts could be used in proving a

conspiracy and which acts were substantive crimes. Instead, the

21

jury was permitted to group everything together. We believe the

failure to give the Petitioners proposed jury instruction and the

Court’s jury instruction deprived the defendant of a fair trial and

the Court was in error. The 11th Circuit's decision in this case is in

conflict with this courts decisions in Krulewitch supra. and

Grunweald supra. The Petition should be granted to resolve this

conflict and to provide clear and concise guidelines on the use of

the doctrine of vicarious liability set out in Pinkerton supra.

IV. THE CONDUCT OF THE PROSECUTOR AT TRIAL

AND AT THE GRAND JURY DENIED THE PETITIONER

DUE PROCESS AND A FAIR TRIAL REQUIRING THIS

COURT'S SUPERVISION.

Throughout the trial the prosecutor time and time again

attempted to get into evidence items and testimony after objections

had been granted. A one and a half day trial lasted five times as

long because the defense had to make objections that in the eyes of

the jury the defense was responsible for the delays. The Prosecutor

knew there was no evidence legally admissable showing the

Petitioner was prohibited from buying at the RTC auction. He

argued it anyway. When told by the court the segment of testi-

mony of Mr. Yogman that Jessica Claassen told him her husband

could not because of the company for which he worked was not

responsive he played it anyway and argued it. The whole record at

trial upon examination will show that it was a trial tactic to get

everything in no matter what and to wear out the Court and the

defense. The Court even prohibited a defendent's statement from

evidence because it was not revealed. Many of the sidebar confer-

ences were a direct result of the governments disobeyal of the

Court's rulings. The trial was mixed with sidebars, objections,

hearings; attempts to get into evidence pictures of the duplex ruled

inadmissable; insinuating a witness was hired because the

Petitioner's father owned his house when the prosecutor had the

wrong address, (R10 22-25); insinuating a defense exhibit was a

fraud (R 10:180, 188, 190, 191) because it was not in the company

records when the Prosecutor knew records were destroyed, again

requiring the Court to inform the prosecutor he was with the

Department of Justice. (R10: 190,191).

These trial practices of the prosecutor as set out in this

Petition supra. require this Court, under the power of supervision,

to deter trial by trickery and trial by the prosecution without

concern for justice to grant the Petition.

22

CONCLUSION

Now is the time for the Court to inform the U.S. Department of

Justice that individual assistant U.S. Attorneys cannot amend the

Code of Federal Regulations on their own; the Pinkerton instruc-

tion can be improperly recommended; there is a responsibility by

the U.S. Department of Justice to have their prosecutors carry out

justice, provide fair trials and due process. It is this Court's

responsibility and the Eleventh Circuit to supervise any departure.

Therefore, based upon the above arguments, it is respectfully

submitted that the Petition should be granted and the conviction of

Petitioner James M. Claassen should be reversed and the case

should be remanded to the District Court with directions that James

M. Claassen be discharged, or in the alternative, order a new trial.

Respectfully submitted,

Gary L. Betz

304 Plant Avenue

Tampa, Florida 33606

(813) 254-8888

Attorney for James M. Claassen

/S/

Gary L. Betz

23

APPENDIX

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

No. 94-2335 |u.s COURT OF APPEALS

ELEVENTH CIRCUIT

D.C. Docket No. 93-264-CR-T-24A

OCT-4 1995

MIGUEL J. CORTEZ

CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

D. RICHARD CLAASSEN; JAMES M. CLAASSEN,

Defendants-Appellants.

On Appeal from the United States District court for the

Middle District of Florida

BEFORE DUBINA and CARNES, Circuit Judges, and MILLS*,

District Judge.

PER CURIAM:

* Honorable Richard Mills, U.S. District Judge for the Central

District of Illinois, sitting by designation.

App. i

AFFIRMED. _ See I Ith Cir. R. 36-1.

Entered: October 4, 1995

For the Court: Miguel J. Cortez, Clerk

wy FAL, Penton —

Deputy Clerk

ISSUES MANDATE: _ 12/11/95

11TH Cir. R. 36-1 provides:

When the court determines that any of the following

circumstances exist:

(a) judgement of the district court is based on findings of

fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

(c) the order of an administrative agency is supported by

substantial evidence on the record as a whole;

(d) summary judgement, direct verdict, or judgement on

the pleadings is supported by the record;

(e) judgement has been entered without a reversible error

of law;

and an opinion would have no presidential value, the judgement or

order may be affirmed or enforced without opinion.

App. ii

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

No. 94-2335 |u.s COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 21 1995

MIGUEL J. CORTEZ

CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

D. RICHARD CLAASSEN,

JAMES M. CLAASSEN,

Defendants-Appellants.

On Appeal from the United States District court for the

Middle District of Florida

BEFORE: DUBINA and CARNES, Circuit Judges, and

MILLS*, District Judge.

PER CURIAM:

The Petition(s) for rehearing filed by appellants is DE-

NIED.

ENTERED FOR THE COURT:

S

UNITED STATES CIRCUIT JUDGE

ORD-4i

* Honorable Richard Mills, U.S. District Judge for the Central

District of Illinois, sitting by designation.

App. ili

12 CFR Ch. III (1-1-91 Edition)

§ 336.18 Purchase of liquidation assets.

(a) |Anemployee, the employee's spouse or dependent child,

or members of the employee's immediate household shall not,

directly or indirectly purchase any property which the FDIC holds

in its capacity as receiver, liquidator, or liquidating agent of the

assets of a bank, regardless of how the property is sold.

(b) |Anemployee who is involved in the disposition of liquida-

tion assets shall disqualify himself or herself from participation in

the disposition of such assets when the employee becomes aware

that any relative, or any organization or partnership with which the

employee, the employee's spouse or dependent child is associated,

has submitted a bid for purchase of such liquidation assets. The

employee shall advise his or her immediate supervisor and the

Ethics Counselor in writing of the self-disqualification.

(c) Anemployee shall not, directly or indirectly, use or release

to persons outside the FDIC confidential information regarding the

sale or disposition of liquidation assets except as mandated by the

employee's official responsibility to liquidate such assets and only

as prescribed in Division of Liquidation guidelines applicable to

such sale or disposition.

App. iv