Petition for Writ of Certiorari — Reich v. United States, 128 S. Ct. 115 (2007) (No. 06-1591)

Jf Bik

IN THE

Guited States Supreme Court

PP <4

PERRY REICH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

FREDERICK C. MEYER, Esq.

Counsel of Record

10 Sagamore Road

Hampton Bays, New York 11946

631-728-8778

May 29, 2007

i

QUESTIONS PRESENTED

1. The term “forgery” is commonly defined as fashion-

ing or reproducing a document “for fraudulent purposes.”

Does 28U.S.C. § 505, the statute punishing forgery of fed-

eral judicial documents, require the Government to prove

a specific intent to defraud, based on that definition, as

consistently held by the Sixth Circuit since 1931, and

implicitly recognized by the Seventh and Eleventh Cir-

cuits, or is intent to defraud not an element of the crime, as

held by the Tenth Circuit and Second Circuit in this case?

2. The District of Columbia, Third, Fifth, Eighth and

Eleventh Circuits, building upon Michelson v United

States, 335 U.S. 469 (1948), have recognized that cross-

examination of a character witness concerning specific

instances of alleged misconduct is fraught with unfairness

and potential for abuse. In these Circuits, inquiry is not

permitted until the prosecutor establishes, prior to con-

ducting cross-examination and in the absence of the jury,

that there is a good faith basis for believing that (1) the

incident occurred and (ii) is either a matter likely to be

known in the community at large, for a “reputation wit-

ness,” or otherwise likely to be personally known by the

witness, for an opinion witness. In the Second Circuit, as

held in this case and in a prior published opinion, cross-

examination of character witnesses is a matter committed

entirely to the broad discretion of the trial court and such

knowledge need not be established.

(a) In this case, after the prosecutor posed the question,

and objection was made by defense counscei, the district

court permitted the prosecutor to inquire whether, if the

character witness knew that petitioner had breached a pro-

il

vision in a partnership agreement, which required written

permission to change beneficiaries, and petitioner had

done so without such written permission, and designated

the partnership instead of the partner’s family as benefici-

aries, that would change his opinion or the community

opinion of petitioner. Oral permission had been given and

petitioner never received any of the proceeds of the policy.

The prosecutor was not required to establish community or

personal knowledge. Is the Second Circuit procedure,

which is at variance with other Circuits, interdicted by

Michelson and the Federal Rules of Evidence?

(b) Over objection, the prosecutor was permitted to use

a hypothetical question that assumed that the incident

occurred and was a reflection of poor character and dis-

honesty. Does Michelson remain good law, in which event

the question was improper, or are the district court and the

Ninth Circuit correct in holding that Michelson has been

superceded by the Federal Rules of Evidence?

3. Insofar as pertinent, 18 U.S.C. § 1512(c)(2), enacted

as part of the Sarbanes-Oxley Act, punishes the obstruction

of judicial proceedings. To sustain a conviction, must the

Government prove that a defendant’s conduct was intended

to deceive the Court, and, if the prosecution is predicated

on the discretionary acts of third parties, that the defen-

dant’s conduct had the “natural and probable” consequence

of obstructing justice, by affecting the merits?

4. In a prosecution under 18 U.S.C. § 1001, based upon

an F.B.1. agent’s interview of the defendant at a proffer

session, the indictment charged that the defendant made an

affirmative falsehood, but the agent did not testify to any

such specific inquiry. Rather, based on notes, not a tran-

script or tape recording, the agent testified that defendant

iil

did not “admit” guilt. May the conviction be sustained on

the theory that the jury could have inferred that defendant

denied having sent the order, or, is the Ninth Circuit cor-

rect in holding that there be “clear evidence of what was

said,” with a specific question and specific answer?

5. Depending upon this Court’s decisions in Clairborne

v United States, Docket No. 06-5618, and Rita v United

States, Docket No. 06-5754, currently sub judice, should

the case be remitted for re-sentencing?

IV

LIST OF PARTIES

All of the parties are listed in the caption.

Vv

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

gg AEM £8 Bl ONE bs 8 Ba’ g 5h S SRR nee l

SlLALeMen!) OF THE CASE ...... 66.0.0 6.0.c8.. 2

Oe eae ead a cea en 2

ic RA RUE ROEM i iivaicae Goce ave aewicans ees 5

L; Baee Correa BS CARO. oo os ices 5

2. The Defense Case and Character

pT SN aero A PE ee ete 8

3. SpOvermment Remutial «|. ooo sa ci kin ca cce ese 11

C. Verdict, Post-Trial Motions and Sentencing ... 12

D. Proceedings in the Court of Appeals........... 13

vl

Page

REASONS FOR GRANTING THE WRIT ........ 14

i a eS oy 14

B. The Circuits are Divided on the Question

whether Fraudulent Intent is a Required Ele-

ment of Forgery Under 18 U.S.C. § 505: The

Better View is that a Conviction Cannot Stand

Unless the Government Proves Fraudulent

Intent Beyond A Reasonable Doubt. ..... peas 14

C. The Circuits are divided on the impact that F.R.

Evid. 405 has on this court’s decision in Michelson

v United States, 335 U.S. 469 (1948) and the

scope of Permitted Cross-Examination of charac-

ter witnesses: the Better View requires a Prose-

cutor to seek a ruling outside the Jury’s presence

and demonstrate a Good Faith factual basis for

the incidents sought to be raised in Cross-Exam-

ination and that the events are of a type likely

to have become a matter of general knowledge

in One community or otherwise known to the

IR a nigh c x cak we ib Gamand WadnsoeSRKeedaue es 17

D. Deception of a Court and a Tendency to Affect

the Merits are Required Elements of 18 U.S.C.

ETD 515608 6 0X no nok a sc ak oceeh Seer vanes 23

E. Absent “Clear Evidence of What was Said” a

Conviction Under 18 U.S.C. § 1001 Cannot

vil

Page

F. Depending Upon this Court’s Decisions in

Clairborne v United States, Docket No. 06-5618,

and Rita v United States, Docket No. 06-5754,

the Case Should Be Remitted for Reconsidera-

RGN GE BOI ick. Sees a Sees 19

SO 8 Lio |S epee aie Maes Bonen manne eran 30

APPENDIX

“A” Opinion of the Court of Appeals ............ la

“B” Opinion of the District Court................ 26a

“C” Opinion of Magistrate Judge in

Ryan Beck & Co. v Fakih,

268 F.Supp.2d 210 (E.D.N.Y.),

motion denied, 273 F.Supp.2d 393

CR ae EN 5k i 0s 8 ksi dt cecncnscckas 59a

ee

Sas

ey

Vill

TABLE OF AUTHORITIES

Page

A. U.S. SUPREME COURT CASES

Allied Chemical v Daiflon, 449 U.S. 33 ........... 26

Arthur Anderson, LLP v United States,

ro as io he ea os ks eee ss 27

Clairborne v United States,

SE A SON ies cosas sha sadunkavnnsen ill, vii, 29

Crawford v Washington, 541 U.S. 36.............. 22, 30

Koon v United States, 518 U.S. 81................. 21

Levinson v United States, 47 F.2d 470............. 14

Be Beg Re” 8 5 ie Ye Se 17

Mallard v United States District Court,

RR EE hah aR a eu gh awe ccne bbs sales teenies 26

McNally v United States, 483 U.S. 350............ 16

Michelson v. United States,

Boe ee MR OU is dns decasdavauens v, vi, 17, 21, 22, 24

Rita v. United States, Docket No. 06-5754 ........ 29

United States v Aguilar, 515 U.S. 593............. 27

Will v United States, 389 U.S. 90.................. 26

B. FEDERAL CASES

Awkard v United States, 352 F.2d 641 ............. 22

Gross v United States, 394 F.2d 216................. 18

Richmark Corp. v Timber Falling Consultants,

(kg UNS |. ~. Ree eae Daan Let ar pe ae 24

1X

Page

Ryan Beck & Co. v Fakih,

Fe BR GR i 3, 7, 26

United States v Adair, 951 F.2d 316, 319.......... 18, 19

United States v Barber, 39 F.3d 285, 288 ......... 16, 19

United States v Bertrand, 596 F.2d 150 (6th

Cir. 1979), cert. denied, 450 U.S. 1004........ 15

United States v Birney, 686 F.2d 102....... Ree 18, 20

United States v Bruguie, 161 F.3d 1145,

Bat & fe | aemereteereh s UA 19, 20

United States v Cowan, 116 F.3d 1360 ............ 15

United States v Craft, 105 Be Sr 25

United States v Curtis, 644 F.2d 263, 268, 269.... 18, 19

United States v Duke, 492 F.2d 693, 696.......... 18, 22

United States v Dyer, 546 F.2d 1313.............. iS

United States v Good, 326 F.3d 589 ............... 28

United States v Hutcherson, __ F.Supp. 2d

2OOG Wi, EP ae eed wcts ives... 25

United States v Jiang, 476 F.3d 1026, 1030....... 28

United States v Krapp, 815 F.2d 1183 (8th Cir.),

cert. denied, 484 U.S. 860 ..................... 18

Uniied States v Lewis, 482 F.2d 632............... 18

United Sigtes v London, 714 F.2d 1558............ 15

United States v Lundwall, 1 F.Supp.2d 249........ 24

United States v Martinez, 413 F.3d 239 ........... 30

Page

United States v Merritt Meridan Construction

Corp., 95 F.2d 153 (2d Cir. 1996) affg......... 23”

United States v Monteleone, 77 F.3d 1086,

PRO: CSE oi hae awk xe thao kb 12, 18, 19, 22

United States v Reich, 479 F.3d 179 ............... 5. ts

United States v Sainz, 772 F.2d 559, 565.......... 28

United States v Scholl, 166 F.3d 964, 974....... 17, 19, 21

United States v Snow, 670 F.2d 749 ............... 16

C. OTHER CASES

Arrow Plumbing Co. v Dare Construction Corp.,

Bi IE i oisinn eee aiken s Ap een idsansices 23

D. CONSTITUTIONAL & STATUTORY

PROVISIONS

OF kn ME CIEE OSs <5 Viens Cle abe ebckcomsauk 1, 28

Pe Gece ee BIUEE ou) cccenchuavucnneclecricane li, vi, 2, 27, 28

ee RES dk ccna i cede ha l

ERNE ROME 6 ciuivin 6 hin Viens RKC y ces ka eae peials 24

ee ae a ROR dis 2s 43s mans ahoncane cteceeeeaws 2, 23; 24

Raa Me OMT hn ess cccnvceoasevnaees li, v, 23, 24, 26

Rs A EE Cas pe Ci ia oedaer ks vi, 1, 2, 12, 13, 14, 15

Ps Re, Pes WE ek: Us TOS iss hs cca wae cose 16

Pub.L. No. 107-204, 116 Stat. 745.......3......... 23

XI

Page

E. RULES AND REGULATIONS

ee ER ese inka spa es eee seed Seeks sbaeune 3

je ip | i RRR die Ae nian rae pr 3, 29

SP EE boy kv aden Sob Sd ess Maes bebinaws 13, 29

Wright & Graham, Federal Practice & Procedure,

NN NN is snes cae eek oud wu aeuekawews 20

F. Texts and Treatises

co Be 2 | Re 14

Britannica Concise Encyclopedia.................. 14

O’Malley, Grenig & Lee, Federal Jury Practice

& tnetrectwons CWS BOOT) nas os ess ss. 16

Webster’s Third New International Unabridged

PI pat adiia tic cckiwerast in teseu kashern 14, 27

Williston on Contracts (4th ed) .................... 23

Wright & Graham, Federal Practice and

I is widanc cas 4 saad kbcwcuawes rmnncds 20

G. Other Authorities

Anchincloss & Walsh, Obstruction of Justice,

42 Am.Crim.L.Rev. 721, 746-47 ............... 24

Note, Anticipating Document Destruction Under

the Sarbanes-Oxley Anti-Shredding Statute,

SP OR. 1. OV. TOT Cn onde ceee ees: 24

Note, Evidence Tampering, 53 Duke L.J. 1215.... 24

————

Xl

Roadcap, Obstruction of Justice, 44 Am.Crim.

Si UE Re va ienkd eh xtiasenweuncelbs ins 24

B. Vango, S. Kagen, & J. Classen, The Sarbanes-

Oxley Act of 2002: A Securities Litigation

POPEOITON, FAS FRACADs Civics enters secures 24

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit is reported at United States v Reich, 479

F.3d 179 (2d Cir. 2007), and may be found in Appendix

“A.” The opinion of the district court is reported at 420

F.Supp.2d 75 (E.D.N.Y. 2006) and is attached hereto as

Appendix “B.”

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §1254.

The Second Circuit issued its opinion on March 2, 2007,

and no petition for rehearing was filed. Since this petition

is being filed within 90 days of the entry of judgment of

the Court of Appeals, it is timely.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., Amdt. VI:

“In all criminal prosecutions, the accused shall

enjoy the right .. . to be confronted with the wit-

nesses against him...”

18 U.S.C. § 505:

“Seals of courts; signatures of judges or court

officers. Whoever forges the signature of any

judge ... of any court of the United States ... or

knowingly concurs 1n using such forged or coun-

terfeit signature ... for the purpose of authenti-

cating any proceeding or document... knowing

such signature ... to be false ... shall be fined

under this title or imprisonment not more than

five years, or both.”

18 U.S.C. § 1001(a)(2):

“... [w]hoever, in any matter within the jurisdic-

tion of the Government of the United States,

knowingly and willfully ... makes any material-

ly false, fictitious, or fraudulent statement or rep-

resentation” has committed a crime.

18 U.S.C. §1512:

“Tampering with a witness, victim or an inform-

ant

(c) “Whoever corruptly—

(2) otherwise obstructs, influences or impedes

any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not

more than 20 years or both.”

F.R. Evid. 405(a):

“In all cases in which evidence of character or a

trait of character of a person is admissible, proof

may be made by testimony as to reputation or by

testimony in the form of an opinion. On cross-

examination, inquiry is allowable into relevant

specific instances of conduct.”

STATEMENT OF THE CASE

A. Introduction

Defendant, PERRY REICH, a highly respected appellate

attorney, stands convicted of obstruction of justice, under

18 U.S.C. § 1512(c) (Sarbanes-Oxley Act), forgery of a

judge’s signature, under 18 U.S.C. § 505, and false state-

ments to law enforcement officers under 18 U.S.C. § 1001.

The law firm of Joel Davidson (“Davidson”) filed a law-

3

suit in the United States District Court for the Eastern Dis-

trict of New York, entitled Ryan Beck & Co. v Fakih, 268

F.Supp.2d 210 (E.D.N.Y.) motion denied, 273 F.Supp.2d

393 (E.D.N.Y. 2003), against Reich and others to stay arbi-

tration of a securities claim before the National Associa-

tion of Securities Dealers. The Magistrate Judge, to whom

the case was assigned, originally denied a motion for a

preliminary injunction, against the defendants and permit-

ted the arbitrations to proceed pending the outcome of the

civil suit. Davidson brought a motion for summary judg-

ment. While that motion was pending, a bogus order

appeared in which the Magistrate Judge purported to

recuse herself and grant a preliminary injunction against

all defendants, pending further proceedings before a dif-

ferent judge. The bogus order was the corpus delicti of the

underlying crimes.

Prior to trial, a motion was made to suppress evidence,

based upon the failure of the F.B.I. agent conducting the

search to tender a copy of the search warrant, as required

by F.R. Crim. P. 41 (Tr. 623). Insofar as pertinent, the

search uncovered a manual for an ancient fax machine, a

Canon Faxphone 8. In addition, the hard drives on the

defendant’s home and office computers were copied. The

agent executing the warrant contended that he also found a

fax machine in the basement, which the warrant directed

be seized, but he “forgot” to take it (Tr. 621). The motion

to suppress was denied.

In addition, a motion in limine was made, predicated on

the Government’s failure to obtain the original purported

fax that Davidson claimed he had received. Following a

hearing, that motion was also denied, and the Government

Was permitted to use “coptes.”

4

Finally, a pre-trial Daubert hearing was conducted to

determine the reliability of an out-of-court experiment

conducted by a Government expert. Following the hearing,

the Court held that evidence concerning the out-of-court

experiment would be received.

At trial, the Government relied upon telephone records

showing that a telephone at defendant’s home had con-

nected to a fax machine at Davidson’s office, expert testi-

mony, based on an out-of-court experiment, purporting to

establish (1) that the Davidson facsimile would “time-out”

after a specified interval, and (2) that the differences in the

number of pages listed as received on the Davidson fax

log, (two pages as opposed to the four sheets comprising

the cover page and bogus order), could be explained if all

of the pages had been faxed from a stand alone fax

machine in a single continuous sheet, namely “tractor

paper.”

Defendant, who took the stand in his own defense, and

denied sending the fax, presented expert testimony as well.

The defense expert noted—and the Government witness

agreed—that there was no evidence of the bogus order on

any of the hard drives cloned from defendant’s computers,

and that there would be traces of it had the document been

erased. Similarly, there was no evidence of a fax on any of

defendant’s computers, which would have been the case

had it been faxed through the fax motion on the computer,

albeit it would be impossible to fax “tractor paper” through

a fax modem. In addition, the F.B.I. never obtained the

purported original fax. The defense expert believed that

the document never was a fax, but was always a photo-

copy.

B. The Trial Testimony

1. The Government’s Case

Telephone records showed that a telephone call from

Reich’s home had connected to the Davidson fax machine

at approximately 11:08 a.m. on June 17, 2003, and that the

call lasted some three minutes (Tr. 296, 303-304, 323).

Davidson’s secretary did not notice any fax arrive because

she was out of her office, and first noticed it “on the

machine” when she returned (Tr. 103, 120, 129, 132-133).

On the date that the fax was purportedly received, she had

no idea of the time that she noticed it; she could only say

that it arrived sometime that morning (Tr. 134).

The secretary’s belief that the fax arrived at either 11:08

a.m. or 11:27 a.m., was based upon two entries in the fax

log that did not contain the telephone numbers of the

sender (Tr. 120, 125-127). Initially, the secretary thought

that the 11:27 a.m. listing involved the bogus fax, but sub-

sequent events led her to change her mind (Tr. 152). In the

end, the secretary did not know whether the document was

actually faxed or whether it was a photocopy left at her

machine (Tr. 154).

A firm associate received the document from the firm

secretary (Tr. 273). The associate could not fix a particular

time of receipt, putting it at sometime between 11:00 -

11:30 a.m. and even as late as 12:00 p.m. noon, based on

the time that she faxed the document to Mr. Davidson at

home (Tr. 248).

The document consisted of four pages (GA 01-04). One

page was the “cover sheet” (GA 01). The other three pages

constituted the bogus order (GA 02-04). The entry on the

6

fax log at the Davidson firm for the 11:08 a.m. call indi-

cated that two pages were received (Govt. Ex. “2”).

The bogus order purported to grant a preliminary injunc-

tion against certain defendants and to, sua sponte, recuse

the Magistrate Judge and refer the matter back to Chief

Judge Korman (Tr. 183, 238, 348-49, 357).

In the interim, Davidson had made a motion for summa-

ry judgment. When the Magistrate Judge had not decided

the matter according to Davidson’s time table, Davidson

filed a petition for a writ of mandamus in the Court of

Appeals against the Magistrate Judge.

Upon receipt of the bogus order, Davidson instructed his

assistant to send it to attorneys representing his client in

other litigation (Tr. 192, 193, 360). He also dictated letters

to arbitration panels, to the Court of Appeals, to Judge

Korman and to other attorneys (Tr. 360, 361).

The next day, June 18, 2003, one of the attorneys for the

defendants in the civil litigation called the Magistrate

Judge to determine whether a decision had, in fact, been

issued (Tr. 530, 536). The Magistrate Judge’s law clerk

asked that the bogus order be faxed to chambers (Tr. 530).

Upon receipt, the Magistrate Judge contacted Judge Kor-

man, the United States Attorney, and the Court of Appeals

(Tr. 534). She also issued an order, dated June 18, 2003,

stating that the earlier document was false (Tr. 535).

After learning that the order was bogus, the Davidson

firm asked Federal Express not to deliver the packages or

informed the intended recipients not to accept them

(Tr. 219, 220, 363). Davidson also sent letters to Judge

Korman, the Magistrate Judge, and the Court of Appeals

(Tr. 275, 277, 363, 364, 365).

7

The bogus order never became part of any court record

and was not mentioned in the Magistrate Judge’s subse-

quent decision in the case (Tr. 557-560). See, Rvan Beck &

Co. v. Fakih, 268 F.Supp2d 210 (E.D.N.Y.) motion denied,

273 F. Supp.2d 393 (E.D.N.Y.). In fact, when initially

interviewed by the F.B.I., the Magistrate Judge’s law clerk

suggested that it might have been a “joke” (Tr. 563).

The Government conceded that the bogus order was not

an original fax, and offered no explanation as to what hap-

pened to that original fax (Tr. 628-29, 630, 636-37) The

copies that it offered differed in material respects. Some

had an “extended page 2.1” on it; others did not. A copy of

the document that was allegedly received by Davidson at

his home, which he first gave to the Government a month

before trial (Tr. 634), had an “extended page 2.2” on it

(Tr. 634-35). The Government speculated that the differ-

ences could have been caused by errors in photocopying,

but there was no testimony concerning photocopying,

other than a copy given to F.B.I. Agent Wilfling when he

came to the Davidson office in June, 2003 (Tr. 156, 168,

211, 235, 267, 285, $70).

According to the Government expert, the three minute

telephone cali was consistent with a fax transmission since

the type of fax machine in the Davidson office would ter-

minate the connection if a fax signal was not received

within approximately 41 seconds (Tr. 406, 454-55). The

expert was of the opinion that the fax log indication of two

pages, as opposed to four pages, and the “extended page”

notation on two of the copies, was the result of the David-

son machine reading the last two pages as one long page

(Tr. 463). He used tractor paper to conduct the experiment,

though he later conceded on cross-examination that it

8

would take special equipment to reproduce the bogus order

on tractor paper (Tr. 460-468, 490-91), that there was no

evidence that the pages overlapped (Tr. 488-89), and that

if the pages were taped together, it would probably jam the

machine (Tr. 489).

2. The Defense Case and Character Testimony

The defense expert testified that his examination of the

computer images seized by the F.B.I. showed that the

bogus order was not created on any of the defendant’s

computers, as the F.B.I. expert conceded (Tr. 723-24, 729-

31), and it could not be sent through the defendant’s com-

puter fax modem (Tr. 997-99). He noted that it was

difficult, if not impossible, to activate the “extended page”

function on the Davidson machine, as each time he tried

this experiment with taped pages, his machine jammed

(Tr. 1000-01). Further, the “extended page function” could

not be triggered by a facsimile transmission sent by a fax

modem and a flatbed scanner (Tr. 1002-03).

Although, in its post-trial opinion the district court

found the defense expert wanting because he did not use a

Faxphone 8 in his experiment, see, United States v Reich,

420 F.Supp.2d 75, 86 (E.D.N.Y. 2006), neither did the

Government expert (Tr. 491). To the extent that the district

court criticized the defense expert’s failure to use tractor

paper, the Government expert admitted that special equip-

ment was necessary to copy the bogus order on tractor

paper, that defendant was not likely to have such special

equipment, that there was no evidence of overlap, and that

if taped together, the machine would jam (Tr. 488-491).

The expert also challenged the authenticity of the “copies”

of the bogus order, explaining why the document was not

9

originally sent as a facsimile transmission (Tr. 1623-27).

Using a power-potnt presentation, he showed that the

degraded quality of the letters on different pages demon-

strated that each of the pages was from a different genera-

tion, something that would not happen in normal

photocopying (Tr. 1023-27).

Defendant took the stand in his own defense, explaining

that his computer fax modem sometimes engaged his tele-

phone line and causes the line to remain connected after

the call has ended (Tr. 887-88). The defense expert, to a

reasonable degree of scientific certainty, was of the opin-

ion that, when defendant hung-up, the fax modem on

defendant’s computer “latched” on to the Davidson fax,

and continued to “hand-shake” until the Davidson machine

disconnected, thereby leaving defendant’s line still open

(Tr. 1037-38, 1176-77, 1196). The Government expert con-

ceded that, if this had taken place, it would have taken

more than 41 seconds for the Davidson machine to discon-

nect (Tr. 480). The fact that the receiving machine “timed

out” after three minutes and 18 seconds, and the telephone

records indicate that defendant remained connection for

four minutes 25 seconds, could not be explained in any

other way (Tr. 1039, 1180).

James Pelzer, the Clerk of the Appellate Division of the

Supreme Court, Second Judicial Department, an interme-

diate New York Appellate Court, testified to defendant’s

good character (Tr. 812-815). Pelzer knew defendant since

the early 1980’s, when defendant served as a law clerk to

then Associate Justice Vito J. Titone, and stayed with

Judge Titone upon his elevation to the New York Court of

Appeals (Tr. 811-12, 814). He also knew defendant when

he was a law clerk to Judge Jacob Fuchsberg, also of the

10

New York Court of Appeals (Tr. 812, 814). Pelzer

explained that defendant was “a person of high honesty

and integrity, a person you can trust, and you can trust his

word. I think that in talking of Perry [Reich] with others,

others share that same opinion” (Tr. 813, 815).

Without first seeking a ruling from the court outside the

presence of the jury, the Government sought to attack

defendant’s character by asking about an allegedly unau-

thorized change in a partnership life insurance policy

(Tr. 817). In the jury’s presence, and before establishing

the bona fides of the inquiry, the prosecutor asked

Mr. Pelzer whether his opinion would change “if you

learned about Mr. Reich changing the beneficiaries of an

insurance policy of Mr. Schapiro?” (Tr. 817). An objection

was sustained, but the prosecutor protested, “I think it is an

appropriate question” (Tr. 817). Discussion was had out-

side the presence of the jury, and the objection was over-

ruled (Tr. 817). Upon protest by defense counsel, further

argument was entertained.

Prior to the question, Pelzer indicated that he had no

knowledge of any partnership or insurance agreements, but

knew that Mr. Schapiro was deceased (Tr. 817, 818). The

jury later heard that Schapiro had died of cancer. When

defendant testified in his own defense, he explained that he

had notified Schapiro before changing the policy benefici-

ary, and that he had done so to protect the firm with regard

to money loaned by Schapiro’s mother to Schapiro, for

which the firm was responsible (Tr. 866-75). There was no

dispute that defendant never received any of the proceeds

of the life insurance policy, as Mr. Schapiro changed the

beneficiaries to his mother and girlfriend when the policy

Ik

was assigned to him following dissolution of the partner-

ship (Tr. 868, 953-54).

The district court declined to conduct any hearing con-

cerning the prosecutor’s good faith (Tr. 834), and upon

balancing prejudice against probative value, concluded

that the question went “to the heart of the government’s

case,” given Mr. Pelzer’s stature in the legal community

(Tr. 841). No limiting instruction was given and challenge

to the form of the question was rejected (Tr. 836-37, 846

[““Let’s forget about the form.”]). It should be noted that,

contrary to footnote 2 in the opinion of the Court of

Appeals, challenge to the form of the question was raised on

appeal, after the panel hearing argument on an application

for bail pending appeal indicated that it thought that the

form of the question violated Michelson v United States,

335 U.S. 469, 482 (1948) (in cross-examining character wit-

nesses “the form of inquiry, ‘Have you heard?’ has general

approval, and ‘Do you know?’ is not allowed”). See, Gov-

ernment Appellee’s Brief in Court of Appeals, p. 24, n. 5;

Appellate Reply Brief in Court of Appeals, p. 15, n. 3.

3. Government Rebuttal

A manual to a Canon Fax Phone 8 was found during a

search of defendant’s home. The machine was over 20

years old and defendant testified that he had discarded it in

2000, because he was not able to connect to the newer

machines, and instead used his flatbed scanner and fax

modem (Tr. 891-93, 948-49). F.B.I. Agent Richard Wil-

fling, who obtained the search warrant that specifically

sought seizure of a fax machine at defendant’s residence

(Tr. 583-84), claimed that he saw a fax machine at the

house, but “forgot” to seize it (Tr. 621).

12

An employee of Canon, who had never seen or used a

Canon Fax Phone 8, contended that the bogus order could

have been sent from such a device, because the Fax Phone

8 did not transmit a “header,” but later conceded that a

“footer” on the document upside down would be a header

(Tr. 1215-19).

C. Verdict, Post-Trial Motions and Sentencing

All three counts of the indictment were submitted to the

jury. Counsel objected to the instructions. With respect to the

forgery count (18 U.S.C. § 505), he contended that it was

error to decline to change “intent to defraud” (Tr. 1445).

Counsel also contended that the court improperly permit-

ted the jury to consider an “attempt” to obstruct justice,

because the indictment alleged a completed crime and the

case was tried on that basis (Tr. 1248-52, 1340-41).

Following a verdict convicting him of all three counts,

defendant made a motion for a judgment of acquittal, a

new trial, and other relief. Some of these claims were with-

drawn upon retaining new counsel (Tr. 1454-1468).

The district court denied the post-trial motions and bail

pending appeal in a published opinion. United States v

Reich, 420 F.Supp.2d 75 (E.D.N.Y. 2006). It found that

defendant was not a flight risk, but held that there was suf-

ficient evidence to support all three counts, and that none

of its rulings, including the three set forth in this petition,

presented substantial grounds for appeal.

Although the court acknowledged that United States v

Monteleone, 77 F.3d 1086 (8th Cir. 1996) had held that

impeachment of a reputation witness could not be under-

taken if the matter at issue were private, he believed that

13

the Second Circuit would not follow it, and that the matter

was not private, because Schapiro’s family and attorneys

knew about it.

The pre-sentence report calculated defendant’s com-

bined adjusted offense level at 18, which included a two

point enhancement for abuse of a special skill (U.S.S.G.

§ 3B1.3) and a two point enhancement for obstruction of

justice (U.S.S.G. §3C1.1), due to his testimony at trial.

The court found a guidelines sentence to be reasonable,

and imposed a sentence of 27 months imprisonment, a

fine, restitution, and supervised release, after hearing the

Government’s argument that the defendant’s purportedly

unauthorized change of the life insurance policy was a

strong factor to consider in imposing sentence (S:35).

D. Proceedings in the Court of Appeals

Defendant renewed his application for bail pending

appeal before the Court of Appeals. The matter was set for

oral argument at which the motions panel advised both

counsel that it had problems with the form of the question.

Nonetheless, the panel denied the motion.

On March 2, 2007, the Court of Appeals affirmed the

judgment in all respects in a published opinion. United

States v Reich, 479 F.3d 179 (2dCir. 2007). On the issues

relevant here, it concluded that there was sufficient evi-

dence to support the conviction; that it would follow the

decision of the Tenth Circuit, rather than that of the Sixth,

Seventh and Eleventh Circuits, and hold that intent to

defraud was not an element of 18 U.S.C. § 505; that the

character impeachment was appropriate, there being no

need for the prosecutor to show that the matter was known

in the community or that the witness would otherwise be

14

expected to know about it; and that no error occurred in

sentencing.

REASONS FOR GRANTING THE WRIT

A. Introduction

Each of the three issues tendered concern issues of sub-

stantial public importance that have divided the circuits.

Each present the issues in a fully developed factual back-

ground, free of any procedural short comings. In addition,

the Court of Appeals did not find any error to be harmless.

Hence this case 1s an excellent vehicle to resolve these

conflicts.

B. The Circuits are Divided on the Question whether

Fraudulent Intent is a Required Element of For-

gery Under 18 U.S.C. § 505: The Better View is

that a Conviction Cannot Stand Unless the

Government Proves Fraudulent Intent Beyond A

Reasonable Doubt.

In Levinson v United States, 47 F.2d 470, 471 (6th Cir.

1931), the United States Court of Appeals for the Sixth

Circuit squarely held that the forerunner of 18 U.S.C.

§ 505 required proof of an intent to defraud. The decision

rests upon the plain meaning of the word “forgery.”

As commonly understood English, “forgery” means

“... the crime of falsely and fraudulently making or alter-

ing a writing or other instrument that if genuine might

apparently be of legal effect on the rights of another.”

Webster’s Third New International Unabridged Dictionary,

p. 891. It is “... the making of a false writing with intent

to defraud.” Britannica Concise Encyclopedia, p. 679; see

also, Black’s Law Dictionary, p. 677 (8th ed. 2004).

15

The Sixth Circuit adhered to the Levinson holding in

United States v Bertrand, 596 F.2d 150, 152 (6th Cir. 1979),

cert. denied, 450 U.S. 1004 (1981), and Levinson, has been

cited with approval on this point by the Seventh Circuit,

United States v Dyer, 546 F.2d 1313, 1316 (7th Cir. 1976),

and the Eleventh Circuit, United States v London, 714 F.2d

1558, 1563-64 (llth Cir. 1983). Although the Second

Circuit in this case said that the point was not actually

resolved in Dyer or London, the Tenth Circuit viewed it as

“.. . accepted in other circuits that this forgery statute nec-

essarily includes the element of intent to defraud.” United

States v Barber, 39 F.3d 285, 287 (10th Cir. 1994).

Indeed, while the language in Dyer may be dictum, its

analysis of the statutory language is very persuasive. That

Court dissected the statutory provisions and based on plain

English believed that it required an intent to defraud.

In rejecting these authorities, the Tenth Circuit in Unit-

ed States v Cowan, 116 F.3d 1360, 1361 (10th Cir. 1997),

searched for an ambiguity that does not otherwise exist,

noting that some forgery statutes contained the terms

“intent to defraud,” but others, did not. Since the original

enactments were not simultaneous, it is difficult to per-

ceive what this establishes. All it can mean is that some-

times a drafter used a redundancy.

Ignoring the plain meaning of the word “forgery,” the

Tenth Circuit concluded, as did the Second Circuit here,

that, in its view, § 505 is designed to “protect{] the integri-

ty of a government function-—namely federal judicial pro-

ceedings.”

Even if that be so, it does not follow that an intent to

defraud is not an element of forgery. Indeed, the Tenth Cir-

cuit construction leads to absurdities. For example, a party

16

invitation, “ordering” someone to appear at a specific loca-

tion for the party, a holiday card “ordering” someone to

have a happy holiday, or an April Fool’s prank, could be

prosecuted, if the “order” looked like it was genuine.

McNally v United States, 483 U.S. 350, 358 (1987),

which the Second Circuit relied upon for its “historical

view” of what is meant by “defraud” is totally inapposite.

McNally held that a prior version of the Federal Mail

Fraud statute was limited in scope to the protection of

property rights and did not refer to the intangible right of

the citizenry to have public officials perform their duties

honestly. The statute. has since been amended to overturn

that holding. But the nub of the matter is that McNally did

not construe a forgery statute.

In the context of a prosecution under § 505, the Tenth

Circuit previously said, “A common sense and common

definition of fraudulent intent demands the perpetrator act

for personal benefit or to deprive the other person of some-

thing, that something need not be money.” Barber, 39 F.3d

at 288; see also, O'Malley, Grenig & Lee, Federal Jury

Practice and Instructions, Criminal § 32.11 (West 2001),

citing United States v Snow, 670 F.2d 749, 753 (7th Cir.

1982) (where a similar instruction was given).

Although neither the Second nor the Tenth Circuit Court

found any “elucidating legislative history” for § 505, this

ignores the fact that what was the forerunner of § 505 was

re-enacted in identical form in 1948. See, Pub. L. No. 80-

772, 62 Stat. 683. Its construction by the Sixth Circuit in

1931, 17 years earlier, was undoubtedly known to Con-

gress. Pursuant to the legislative re-enactment doctrine,

Congress is “presumed to be aware of [a] . . . judicial inter-

pretation of a statute and to adopt that interpretation when

17

it re-enacts a statute without change.” Lorillard v Pons,

434 U.S. 575, 580 (1978). Consequently, it is more likely

that Congress intended to maintain the construction of

§ 505 previously adopted by the Levinson Court.

In sum, we have a split in the various circuits concern-

ing the elements of a Federal crime. This case presents the

opportunity to resolve that conflict.

C. The Circuits are divided on the impact that F.R.

Evid. 405 has on this court’s decision in Michelson

v United States, 335 U.S. 469 (1948) and the scope

of Permitted Cross-Examination of character wit-

nesses: the Better View requires a Prosecutor to

seek a ruling outside the Jury’s presence and

demonstrate a Good Faith factual basis for the

incidents sought to be raised in Cross-Examina-

tion and that the events are of a type likely to

have become a matter of general knowledge in one

community or otherwise known to the witness.

Almost 60 years have elapsed since this court decided

Michelson v United States, 335 U.S. 469 (1948), the semi-

nal authority on the reception of character evidence. The

Federal Rules of Evidence have somewhat liberalized the

scope of character evidence, by permitting a character wit-

ness to give his or her own personal opinion of character

traits in addition to pure reputation evidence.

This case represents the opportunity to resolve a conflict

in the various courts concerning the scope of permissible

cross-examination of character witnesses and the condition

precedent to its reception, and to either reaffirm Michelson

or modify it, as some circuits have suggested. See, e.g.

United States v Scholl, 166 F.3d 964, 974 (9th Cir. 1999).

18

The decision of the Second Circuit below, as well as its

prior precedents, see, e.g. United States v Birney, 686 F.2d

102, 108 (2d Cir. 1982), relegate the reception to character

evidence and cross-examination of character witnesses to

the almost unbridled discretion of the trial court. In con-

trast, the District of Columbia, Third, Fifth, Eighth, and

Eleventh Circuits, drawing from Michelson, have imposed

substantial procedure safeguards, deeming them required

by Michaelson and the Federal Rules of Evidence. See,

e.g., United States v Lewis, 482 F.2d 632, 639 (D.C.

Cir.1973); United States v Curtis, 644 F.2d 263, 268 (3d

Cir. 1981); United States v Duke, 492 F.2d 693, 696 (Sth

Cir. 1974); United States v Monteleone, 77 F. 3d 1086,

1089 (8th Cir. 1996 ); United States v Adair, 951 F.2d 316,

319 (llth Cir.). As the Monteleone court cautioned,

‘“... [t]he process ‘is fraught with great danger’ unless cir-

cumscribed by rules of fairness grounded in demonstrated

good faith on the part of the prosecution. The result could

be most prejudicial to the defendant and make for a mis-

carriage of justice.” Monteleone, 77 F. 3d at 1089, quoting

Gross v United States, 394 F. 2d 216, 219 (8th Cir. 1968)

and United States v Krapp, 815 F. 2d 1183, 1186 (8th Cir.),

cert. denied 484 U.S. 860 (1987).

These courts require the prosecutor to seek a ruling out-

side the jury’s presence before inquiry is made, and

demonstrate both a good faith factual basis for the inci-

dents sought to be raised during cross-examination, and

that the incidents inquired about are relevant to the char-

acter traits at issue. See Monteleone, 77 F. 3d at 1090; Cur-

tis, 644 F. 2d at 268; Adair, 951 F. 2d at 319. Recognizing

that F.R. Evid. 405(a) permits cross-examination into “rel-

evant specific instances of conduct,” to test the reliability

and credibility of the character witness, not to prove that a

19

defendant committed any particular bad acts, these courts

hold that a prosecutor must establish more than a good

faith belief that the incidents actually occurred. Mon-

teleone, 77 F 3d at 1090; Curtis, 644 F. 2d at 268; Adair,

951 F. 2d at 319.

For a pure reputation witness, “The prosecutor must

possess a good faith belief that the described events are of

a type ‘likely to have become of general knowledge, cur-

rency or reputation in the community.’” Monteleone, 77 F.

3d at 1090, quoting Duke, 492 F.2d at 696, and citing

Michelson, 355 U.S. at 469; see Curtis, 644 F.2d at 269.

The good faith showing for an opinion witness is slightly

more nuanced. “[A]n opinion witness can be cross-exam-

ined only on matters bearing on his own opinion ...,” so

the “... relevant cross-examination is only that which

bears on the fact or factual basis for the formulation of that

opinion.” Curtis, 644 F. 2d at 269, 268. In other words, the

depth of community knowledge is irrelevant, and admis-

sion depends on whether the incident is something that is

“easily verified” and would logically impact the opinion.

See, United States v Bruguie, 161 F 3d 1145, 1149 (8th Cir.

1998); cf. United States v Scholl, 166 F.3d at 974 (cross-

examination of opinion character witness proper, where

based upon public charges of judicial incompetence

against the defendant-judge.)

In Bruguie, three pure opinion witnesses testified that

the defendant was a “good father.” On cross-examination,

they were asked whether they had considered a child abuse

finding made by a governmental agency in formulating

their opinions. Noting that the child abuse finding was

“easily verified,” 161 F. 3d at 1149, the court found the

questioning permissible: “If... a finding of child neglect

20

had been made with respect to the [the defendant], and if

the witnesses knew that, any grounds for believing that

[defendant] was a good father would be undermined. And

if, on the other hand, the witnesses were not aware of such

a finding, the jury might believe that their acquaintance

with the defendant was not enough to justify their opin-

ion.” 161 F. 3d at 1149.

The Eighth Circuit found the procedure employed by the

prosecutor and the district court deficient, because the

prosecutor made no request for a ruling outside the jury’s

presence before he conducted cross-examination, but

affirmed because defense counsel failed to make proper

objection or seek a mistrial after the questions were posed.

161 F.3d at 1149-1150.

The Second Circuit’s statement that Bruguie somehow

stands for the proposition that a prosecutor need not

demonstrate that an opinion witness should have been

aware of the “specific incident” before cross-examination,

is plainly incorrect. If there is no reason to expect the wit-

ness to know about the incident, then the question cannot

possibly be said to test the witness’s credibility, and the

inquiry is simply irrelevant.

Where the incident at issue is purely private, not likely

to be known in the community or otherwise known to the

witness personally, with the exception of the Second Cir-

cuit, all Circuits that have considered the question have

held such conduct irrelevant and not a proper subject for

cross-examination. See, 22 Wright & Graham, Federal

Practice & Procedure, § 5268, at 620 (1978); cf United

States v Birney, 686 F. 2d 102, 108 (2d Cir. 1982) (Uphold-

ing cross-examination of clergyman as to whether certain

nondisclosures by the defendant in certain loan applica-

21

tions would effect the witness’s opinion of the defendant’s

character; case criticized in Wright & Graham as involving

private matter not likely to be known by the witness).

The Second Circuit viewpoint, as set forth in Birney and

the opinion below, that the entire scope of such cross-

examination is committed to the trial court’s discretion,

and that it matters not whether the incident is “private” and

therefore unlikely to be known in the community or to the

witness, is plainly at odds with these principles. Simply

calling a matter discretionary does not immunize it from

judicial review. See, Koon v United States, 518 U.S. 81,

100 (1996). “A district court, by definition, abuses its dis-

cretion when it makes an error of law.” /bid.

The form of the question, a hypothetical assuming that

the incident actually occurred, is similarly problematical.

Contrary to footnote 2 in the opinion of the Court of

Appeals, challenge to the form of the question was raised in

the district court (Tr.836-37,846) and in the Court of

Appeals after the motion panel indicated that it was an

issue. (See, Appellee’s Brief in Court of Appeals, p. 24, n.5;

Appellant’s Reply Brief in Court of Appeals, p.15, n.3).

According to Michelson, 335 U.S. at 482, in cross-

examining character witnesses, “The form of inquiry,

‘Have you heard?’ has general approval, and ‘Do you

know?’ is not allowed.” The reason, of course, is that the

question is designed to test credibility, not to suggest that

the event actually occurred. Nonetheless, the Ninth Circuit

has concluded that this aspect of Michelson did not survive

the adoption of the Federal Rules of Evidence. See, United

States v Scholl, 166 F.3d at 974.

22

The use of the guilt assuming hypothetical, moreover,

amounted to a denial of confrontation. U.S. Court,

Admt.VI; see, Crawford v Washington, 541 U.S. 36 (2004).

Defendant was not given the opportunity to refute the out

of court allegations of the Schapiro family, and the prose-

cution was given the opportunity to argue that the innuen-

do was substantive proof. As the prosecution argued in

rebuttal summation, “I submit to you that the defendant’s

actions on the witness stand were staged. You heard him

testify about his dog dying from cancer and didn’t cry

when his partner died from cancer when he talked about

that.” (Tr. 1374). In addition, the prosecutor argued that

the incidents should be considered in sentencing. (S.35)

No limiting instruction was given. It has been almost

universally held outside of the Second Circuit, however,

that limiting instructions are ineffective to dispel the prej-

udice. See, Monteleone, 77 F.3d at 1091, quoting Awkard v

United States, 352 F.2d 641, 645-46 (D.C. Cir. 1965).

This case presents a perfect fact pattern to resolve the

conflict in the Circuits. The question was posed to Pelzer

in the presence of the jury before the court required the

prosecutor to set forth a basis for the inquiry. Even then, at

no time did the prosecutor offer any theory for a good faith

belief that the matter was known to the community or oth-

erwise known by the witness. Therefore, the suggestion by

the district court and the Court of Appeals that there was

some sort of basis for community knowledge, because no

one was sworn to secrecy, lacks any support in the record.

More important, the content of a partnership agreement

is clearly a private matter. Absent litigation, when the doc-

ument would become public, its contents are hardly a mat-

ter that the community, let alone an appellate court clerk,

23

would know. That the parties and their families may know

about it does not change the equation. Monteleone, which

the Second Circuit indicated it would not be inclined to

follow, did not state a rule limited to grand jury testimony,

and cannot be squared with the decision below.

Finally, it might not be amiss to note that there was even

a serious question as to whether there was any contract

breach. Because the agreement did not contain a clause

against oral modification or waiver, the conduct of the par-

ties could establish an oral modification or waiver. See,

e.g., United States v Merritt Meridan Constr. Corp., 95 F.2d

153, 165 (2d Cir. 1996) affg. 890 F.Supp. 1213 (S.D.N.Y.

1995); Arrow Plumbing Co. v Dare Constr. Corp., 212

N.Y.S.2d 438, 441 (1961); 13 Williston on Contracts,

§ 39:36 (4th ed.). Since it is undisputed that defendant did

not receive any of the proceeds of the policy, and that the

change was made to induce Schapiro’s mother to loan him

money, there was no probative value or basis for the

inquiry. Hence, it should not have been received pursuant

to F.R. Evid. 403, as well.

D. Deception of a Court and a Tendency to Affect the

Merits are Required Elements of 18 U.S.C.

§ 1512(c)(2)

The indictment charged a completed crime of obstruc-

tion of justice, in violation of 18 U.S.C. § 1512(c)(2), part

of the Sarbanes-Oxley Act. See, Pub.L. No. 107-204, 116

Stat. 745 (2002). And defense counsel protested the effort

to change the theory to an “attempt” at trial, after the Gov-

ernment declined to call the Magistrate Judge’s law clerk

and the Court refused to allow questioning as to whether

justice was actually obstructed (Tr. 1248-52, 1340-41).

24

Although there is a great deal of legislative history for

the Act, there is scant discussion of what eventually

became 18 U.S.C. § 1512(c)(2), and this appears to be one

of the first prosecutions under it. Because of the overlap

with 18 U.S.C. § 1503, see, Roadcap, Obstruction of Jus-

tice, 41 Am. Crim. L. Rev. 911, 937 (2004), because of the

reluctance of most courts to apply § 1503 to civil litiga-

tion, see, e.g., Richmark Corp. v Timber Falling Consult-

ants, 730 F.Supp. 1525, 1532 (D.Ore. 1990) (civil

defendant’s counterclaim did not allege the predicate

offense of obstructing justice under § 1503, as there were

extensive remedies available in civil suits); contra, United

States v Lundwall, 1 F.Supp.2d 249, 254-55 (S.D.N.Y.

1998), and because the literal language of § 1512(c)(2)

could turn every potential Rule 11 violation into a criminal

prosecution, this case is an excellent vehicle in which to

define and refine its scope.

According to commentators, § 1512(c), which appears in

the context of a statute that concerns witness tampering,

was meant to cover instances in which a person destroys or

creates evidence with the intent to affect the merits of an

investigation or judicial proceeding. See, Anchincloss &

Walsh, Obstruction of Justice, 42 Am. Crim.L.Rev. 721,

746-47 (2005); B. Vango, S. Kagen, & J. Classen, The Sar-

banes-Oxley Act of 2002: A Securities Litigation Perspec-

tive, 132 PLI/Corp. 89, 111-12 (Practicing Law Institute,

Sept.-Oct., 2002); see also, Note, Anticipating Obstruction

of Justice: Preemptive Document Destruction Under the

Sarbanes-Oxley Anti-Shredding Statute, 89 Corn. L. Rev.

1519 (2004); Note, Evidence Tampering, 53 Duke L.J.

1215 (2004). As one court has explained: “Section 1512(c)

was one of the measured responses by Congress to

improve the accuracy and reliability of corporate disclo-

25

sures by penalizing those who obstruct justice by somehow

impairing the integrity or availability of records, docu-

ments and other tangible objects.” United States v Hutch-

erson, __ F.Supp.2d __, 2006 WL 270019, *2 (W.D.Va.).

Although the decisions applying § 1503 are useful in

assessing whether a particular course of conduct consti-

tutes obstruction under § 1512(c)(2), the two provisions

are strikingly dissimilar. Specifically, the “omnibus

clause” of § 1503, which contemplates actions affecting

the “due administration of justice” has no counterpart in

§ 1512(c)(2), which only contemplates actions affecting

“any official proceeding.” Thus, the reach of § 1512(c)(2)

is necessarily more narrow than § 1503.

Even in the context of § 1503, “The act of altering or

fabricating documents used or to be used in a judicial pro-

ceedings would fall within the obstruction of justice

statute, if the intent is to deceive the Court. United States

v Craft, 105 F.3d 1123, 1128 (6th Cir. 1997) (affirming dis-

missal cf indictment on statute of limitations grounds).

(Emphasis added).

In this case, the proof is clear. The bogus document was

not filed in any court, and there is absolutely no evidence

of any attempt to deceive any court. That was not the the-

ory of the Government case and the jury was never

instructed on such a theory. For that reason, the Court of

Appeals made no mention of the issue, even though the

district court found that question to be “substantial.” 420

F.Supp.2d at 88 n.4. The district court’s claim that the jury

could have found that the Davidson firm was made an

“unwitting agent” of the defendant in connection with the

mandamus proceeding, is belied by the lack of an instruc-

tion to the jury on such a theory and the lack of any basis

26

in the evidence for it. The bogus order was never filed with

the Second Circuit, and there was no dispute that the bogus

order was void and unenforceable, and had no impact on

the decisions of the Magistrate Judge.

Even if the purported deception would have induced the

Davidson firm to withdraw the mandamus petition—and

there was a decision by the Second Circuit denying the

petition on the merits—it would not have had any impact

on the litigation in the district court. As this Court has long

recognized, mandamus is an extraordinary remedy, for

extraordinary cases, and such writs are rarely granted. See,

e.g., Mallard v United States Dist. Court, 490 U.S. 296,

309 (1989); Allied Chem. v Daiflon, 449 U.S. 33,34-35

(1980); Will v United States, 389 U.S. 90, 98 (1967). There

is no case that has ever held that a judge may be compelled

through mandamus to decide a motion on a timetable fixed

by one of the litigants. Even if there were, the grant or

denial of mandamus could not “affect” the Ryan Beck law-

suit in the district court. The motion would still have to be

decided.

In fact, when the motion was decided, summary judg-

ment was denied. Ryan Beck & Co. v Fakih, 268 F.Supp.2d

210 (E.D.N.Y.) motion denied, 273 F.Supp.2d 393

(E.D.N.Y.2003). The District Court held that there were

questions of fact concerning the “asset sale” because it was

a “sale” with no consideration and the name Gruntal sur-

vived.

From the opening and closing statements, it appears to

be the Government position that, if anyone was “inconve-

nienced”™ in some manner, a violation of § 1512(c)(2) was

established. This cannot be the law, because it would turn

any Rule 11 sanction into a de facto crime. Distribution of

27

the bogus order to colleagues was an act done by Davidson

himself and inconvenience or embarrassment does not

constitute obstruction.

Although this Court does not grant certiorari to review

facts, it should be noted that under the tests of Arthur

Anderson, LLP v United States, 544 U.S. 696, 705-07

(2005) and United States v Aguilar, 515 U.S. 593, 599

(1995), which, if applicable to § 1512(c), would require a

finding that the defendant’s conduct had the “natural and

probable effect” of interfering with the proceeding—here

the Ryan, Beck lawsuit in the District Court—the convic-

tion could not stand. The faxing of an unenforceable doc-

ument could not “influence”, i.e. have an affect on the

merits, see, Webster’s Third New International Dictionary,

p. 1190, of the proceeding itself. Calling chambers, recall-

ing letters, and the like simply has nothing to do with the

merits of the proceeding. If it did, every discovery dispute

could turn into a criminal prosecution. Section 1512(c)

was not meant to have such an effect.

E. Absent “Clear Evidence of What was Said” a

Conviction Under 18 U.S.C. § 1001 Cannot Stand.

The indictment in this case charged defendant with hav-

ing made a “materially false, fictitious, and fraudulent

statement ... [to] the F.B.I., in that defendant falsely stat-

ed and represented that the Forged Order was not faxed

from his home, when, in fact, as he then and there well

know and believed, the Forged Order was faxed from his

home” (emphasis added).

At trial, however, two agents testified from notes—tthere

was no recording or transcript—that the defendant never

admitted that he sent the bogus order (Tr. 601, 770, 778).

28

As one agent said, “He never told us that he sent the fraud-

ulent order” (Tr. 778). Defendant testified that, in response

to the agent’s alleged offer of non-prosecution if he would

say it was a joke, “no, I told them distinctly no matter

what, no matter [what] the consequences are .. . I would

never say that [it was a joke]. I didn’t do it [; a]s I sit here

today, I will never say that I did something I didn’t do.”

(Tr. 896).

Despite the lack of a specific question and a specific

answer, the Second Circuit agreed with the district court’s

conclusion that the jury could infer from this testimony

that “defendant denied having sent the forged order to the

Davidson firm.”

Other Circuits have rejected the notion that a conviction

under 18 U.S.C. § 1001(a)(2) can rest upon what the agents

believe an individual meant; there must be clear evidence

of what was said and a full appreciation of the context in

which the statement was made. See, e.g., United States v

Jiang, 476 F.3d 1026 (9th Cir. 2007); United States v

Good, 326 F.3d 589 (4th Cir. 2003); United States v Sainz,

772 F.2d 559 (9th Cir. 1985).

In Jiang, as here, the interview was not recorded and

there was no specific question and denial. Finding the

exchange ambiguous, the Ninth Circuit reversed, observ-

ing that the agent should have asked a specific question.

Quoting from Sainz, the Court said, “‘[T]he consequences

of imprecision in the language used to question a witness

must be laid at the table of the questioner, not the ques-

tioned.’” 476 F.3d at 1030, quoting Sainz, 772 F.2d at 564.

The conviction could not be sustained on that theory that

the agent “thought” that the defendant had meant his

response to be.

29

If Jiang, Sainz, and the decisions they relied upon, are

correct, the conviction here could not stand either. The

agents said that defendant never admitted that he sent the

false order. The indictment, however, charged that defen-

dant made an affirmative statement. Defendant’s testimony

that he rejected the agent’s offer to say that the episode

was a joke doesn’t turn the lack of an admission into an

affirmative statement. All defendant said was that, as he

was sitting in court, he wouldn’t say that he did “it.”

This case thus presents the Court with the opportunity to

resolve the conflict in the Circuits and squarely hold that

there must be a specific question and a specific answer, as

reflected in a recording, transcript, or other written docu-

ment. A conviction should not be based on surmise, sup-

position or conjecture. The lack of precision falls on the

agents, not the defendant.

F. Depending Upon this Court’s Decisions in Clair-

borne v United States, Docket No. 06-5618, and

Rita v United States, Docket No. 06-5754, the Case

Should Be Remitted for Reconsideration of Sen-

tence.

The pre-sentence report calculated the defendant’s com-

bined adjusted offensive level at 18, which included a two

point enhancement for abuse of a “special skill” (U.S.S.G.

§$ 3B1.3) and a two point enhancement for obstruction of

justice (U.S.S.G. § 3C1.1). The Court also considered the

prosecution argument that defendant’s purportedly unau-

thorized change in a life insurance policy was a strong fac-

tor to consider in imposing sentence (S. 35).

Although the Second Circuit, among others, has held

that the confrontation clause, U.S. Const., Admt. VI, and

30

this Court’s decision in Crawford v Washington, 541 U.S.

36 (2004), have no impact in sentencing, see, United States

v Martinez, 413 F.3d 239, 243 (2d Cir. 2005), it may be

that Clairborne and Rita will address this and other issues.

If so, the defendant should have the benefit of those deci-

sions.

CONCLUSION

This case presents substantial issues of public impor-

tance that have divided the circuits.

The petition for certiorari should be granted.

Dated: Suffolk County, New York

May 29, 2007

Respectfully submitted,

FREDERICK C. MEYER, ESQ.

Counsel of Record

10 Sagamore Road

Hampton Bays, New York 11946

631-728-8778