Petition for Writ of Certiorari — Stavroff v. United States
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Supreme Court, U.S.
rPi?+ten
281199 Nov 30 1999
e ihe ULERK
In The
Supreme Court of the Anited States
@ctober Term, 1998
¢
FRANK STAVROFF,
Petitioner,
Ve
UNITED STATES OF AMERICA,
Respondent.
+
Petition For A Writ Of Certiorari
To The United States Court of
Appeals For The Sixth Circuit
+
PETITION FOR WRIT OF CERTIORARI
with Appendix
+
*R. WILLIAM MEEKS
R. WILLIAM MEEKS Co., L.P.A.
Attorney at Law
511 South High Street
Columbus, Ohio 43215
(614) 228-4141
Attorneys for Petitioner
*Counsel of Record
January 15, 1999
ALA A A 432 Walnut Street * Cincinnati, OH 45202
(800) 581-2252 D> e¢
14
QUESTIONS PRESENTED FOR REVIEW
(1) Whether a violation of the Right of Confrontation can
be deemed harmless beyond a reasonable doubt, where the
star government witness’ cross-examination cn the issue of
his plea agreement and corresponding expectation of
leniency was prohibited.
(2) Whether a trial court may prohibit defense cross-
examination of a cooperating government informant
concerning his expectations attendant to a plea agreement
simply because the prosecutor offered the plea agreement
and questioned the informant on direct examination
regarding the obligation to testify truthfully.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ......
BAmeee OF CONTENTS .. 6... ccc cece eee
CITATIONS OF OFFICIAL & UNOFFICIAL
| REPORTS OF OPINIONS & ORDERS ....
STATEMENT OF JURISDICTION ..........
CONSTITUTIONAL PROVISIONS &
STATUTES INVOLVED .............
I. Sixth Circuit Reasoning.............
Il. Basis for Writ of Certiorari .........
A. Unsettled Law & Conflicting Authority .
1. Unsettled Law.........
2. Inconsistent Authority
B. Departure from Accepted and Usual
Course of Judicial Proceedings .....
oe ee i BN a oe
v1
26
TABLE OF AUTHORITIES
CASES:
California v. Green, 399 U.S. 149 (1970) ..... 16, 20
Carrillo v. Perkins, 723 F.2d 1165 (Sth Cir. 1984) .. 11
Coy v. lowa, 487 U.S. 1012 (1988) ............. 17
Davis v. Alaska,
415 U.S. 308 (1974) .......... 12-15, 17, 18
Delaware v. Van Arsdall.
475 U.S. 673 (1986) ....... 7, 8, 10-12, 15, 21
Douglas v. Alabama, 380 U.S. 415 (1965) ........ 14
Greene v. McElroy, 360 U.S. 474 (1959) ......... 18
Lee v. Illinois, 476 U.S. 530 (1986) ........... 17
Maryland v. Craig, 497 U.S. 836 (1990) .... 16, 20
Smith v. Illinois, 390 U.S. 129 (1968) _. 14
United States v. Garza,
754 F.2d 1202 (Sth Cir. 1985) oe
United States v. Stavroff,
149 F.3d 478 (6th Cir. 1998) .. i+ ae ee Oe
il
a
STATUTES:
ea I S63 ee eee vi, 1, 24
LA IEE fda ote card. pea aoe ee vi, 1, 24
ee Ae oh ss Ss RE eee vi
RULES:
Advisory Committee Notes, FED. R. Evip 608 ..... 19
ee re ra 19
Pr ee ree nie vi, 9, 10, 12, 15
CONSTITUTIONAL PROVISION:
Confrontation Clause, U.S. CONST. amend. VI ..... vi
CITATIONS OF OFFICIAL & UNOFFICIAL
REPORTS OF OPINIONS & ORDERS
SIXTH CIRCUIT OPINIONS & ORDERS:
Order Denying Petition for Rehearing & Suggestion for
Rehearing En Banc, Sept. 1, 1998, No. 97-3216
United States v. Stavroff, 149 F.3d 478 (6th Cir. 1998)
Order Granting Release, June 3, 1997, No. 97-3216
SOUTHERN DISTRICT OF OHIO OPINIONS & ORDERS:
Order Denying Motion to Reconsider Stay Pending Appeal,
April 16, 1997, Case No. 96-00097
Order Denying Motion to Stay Sentence Pending Appeal,
February 24, 1997, Case No. 96-00097
Judgment in a Criminal Case, February 11, 1997,
Case No. 96-00097
Memorandum Opinion and Order, October 17, 1996,
Case No. 96-00097
Order, June 4, 1997
Case No. 96-00097
STATEMENT OF JURISDICTION
Petitioner seeks review of the Sixth Circuit Court of
Appeals decisions first affirming his criminal convictions on
July 20, 1998, and later denying rehearing and en banc
rehearing on September 1, 1998. The United States District
Court for the Southern District of Ohio, Eastern Division,
maintained original jurisdiction over Petitioner’s case by
virtue of the federal criminal charges of conspiracy to
commit tax fraud in violation of 18 U.S.C. § 371 and filing
false individual tax returns in violation of 26 U.S.C. §
7206(1). Petitioner now seeks review in this Court pursuant
to Rule 10, et seq., of the Rules of the Supreme Court of
the United States, and 28 U.S.C. § 1254.
CONSTITUTIONAL PROVISIONS &
STATUTES INVOLVED
Confrontation Clause, U.S. CONST. amend. VI
18 U.S.C. § 371
26 U.S.C. § 7206(1)
Advisory Committee Notes, FED. R. Evip 608
FED. R. Evip 608
ENA Se ae aN Mths Bits AR ea ALES
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3
id
STATEMENT OF THE CASE & FACTS
Frank Stavroff (hereinafter “Petitioner”) was
convicted in the United States District Court for the
Southern District of Ohio, Eastern Division, of one count of
conspiracy to defraud the United States in violation of 18
U.S.C. § 371, and three counts of subscribing a false tax
return in violation of 26 U.S.C. § 7206(1). These charges
related to Petitioner's ownership interests in two local
businesses. The Indictment alleged that Appellant had
conspired with the other owners to “skim” money from the
businesses and thereby avoid tax liability.
Although numerous witnesses testified regarding the
general contents of allegedly fraudulent tax returns, only
one witness, Steven Dosky, testified that Petitioner was
responsible for fraudulent acts. Dosky, Petitioner’s former
associate, was a cooperating government witness testifying
pursuant to a plea agreement. He explained how the
businesses generated false financial statements and filed
fraudulent tax returns. Dosky further testified that
Petitioner was directly involved in the tax fraud.
Unquestionably, Dosky was the most important government
witness. Aside from his testimony, there was no direct
evidence to link Petitioner to any criminal activity.
Moreover, he provided the only evidence that established
the mental elements of the charged offenses. '
During direct examination, the prosecutor introduced
Dosky’s plea agreement. Prior to any impeachment efforts
by defense counsel, the prosecutor elicited testimony
stressing that Dosky was obligated to testify truthfully
pursuant to the agreement. This extrinsic evidence served
no purpose other than to accredit Dosky’s character trait of
truthfulness.
On cross-examination, defense counsel sought to
impeach Dosky’s credibility by questioning him regarding
his expectations of leniency attendant to the plea agreement.
‘In its Opinion, the Sixth Circuit panel incorrectly
concluded that “while essential to the conspiracy charge,
[Dosky] was not necessary for the underreported income
charges.” United States v. Stavroff, 149 F.3d 478, 483. n.2
(6th Cir. 1998). On the contrary, Dosky’s testimony was
essential to all counts in the Indictment. not merely the
conspiracy charge. In order to convict Petitioner on all
counts, the government was required to prove beyond a
reasonable doubt that he acted willfully and knowingly.
Only Dosky offered testimony regarding these elements.
along with all other essential elements of the charged
offenses. Although Dosky testified regarding the conspiracy
count, the essential elements of the remaining charges could
not be established in the absence of proof of a conspiracy.
Therefore, the charges were inextricably linked, and
Dosky’s testimony was essential to prove the underreported
income charges as well as the conspiracy charge.
5
The court sua sponte interrupted the cross-examination and
prohibited any inquiry regarding Dosky’s motive to testify
and the favorable treatment that he hoped to receive in
exchange for his cvoperation. The court then proclaimed in
the presence of the jury that Dosky’s “hopes [for lenient
treatment have] nothing to do with the guilt or innocence of
this defendant.”
The following excerpts from the trial court record
illustrate defense counsel’s futile attempts to cross-examine
Dosky and the trial court’s improper commentary before the
jury:
MR. BINNING: Mr. Dosky, by a bill of
information you pled guilty to one count of
conspiracy in the United States District
Court, is that correct?
DOSK/Y: That is correct.
MR. BINNING: And one of the hopes in
your entering-
COURT: One of the what? What did you
say, one of the what?
MR. BINNING: Through the means of a bill
of information, your Honor, you entered a
plea of guilty to one count of conspiracy.
Ww
COURT: What was your next question to
this witness?
MR. BINNING: After that question, your
Honor?
COURT: Yes. One of your hopes, is that
what you said?
MR. BINNING: No, Sir. I hadn’t gotten to
that question yet.
COURT: Go ahead.
MR. BINNING: Thank you, your Honor.
MR. BINNING: By entering the plea, you
hoped to lessen any personal exposure --
COURT: Do you object to that question?
MR. BROWN: No, I ean’t, your Honor. |
can’t object to that question.
COURT: You what?
MR. BROWN: I’m sorry. I cannot object
to that question. | apologize.
COURT: Go ahead.
MR. BINNING: Thank you, your Honor. By
entering a plea of guilty to the conspiracy
count, it was your intention to lessen your
exposure regarding any penalty that might be
imposed on you, correct?
COURT: Regarding the what?
MR. BINNING: Regarding any penalty that
might be imposed upon you
COURT: I won’t let you answer that
question. Go ahead. His hopes has nothing
to do with the guilt or innocence of this
defendant. Now go ahead.
MR. BINNING: May I approach the bench,
your Honor?
COURT: No, you may not.
—_
MR. BINNING: Why did you enter a plea to
one count of conspiracy?
COURT: What?
MR. BINNING: Your Honor, I will strike
that. May I approach the bench?
COURT: No, you may not.
MR. BINNING: May I proffer something on
the record?
COURT: You may at recess. Whatever you
want to do.
(Emphasis added).
On October 11, 1998, the jury returned verdicts of
guilty on all charges. Petitioner filed a timely Notice of
Appeal from the final sentence on February 10, 1997. On
June 3, 1997, The Sixth Circuit Court of Appeals ordered
Petitioner’s release on bail pending appeal. Petitioner later
filed his appellate brief in the Sixth Circuit on September
3, 1997, raising the following relevant Assignments of
Error:
I. The District Court erred in prohibiting
cross-examination of a crucial prosecution
witness regarding expectations of leniency
pursuant to a plea agreement, thereby
depriving defendant of the Right of
Confrontation in violation of the Sixth
Amendment to the United States
Constitution.
II. The District Court erred when it
interrupted the cross-examination of a crucial
prosecution witness and stated in the
presence of the jury that the witness’s
“hopes” for leniency in exchange for
testimony had nothing to do with the guilt or
innocence of the accused, thereby depriving
defendant of the right to a fair and impartial
trial in violation of the Sixth Amendment to
the United States Constitution.
On July 20, 1998, the Sixth Circuit affirmed
Petitioner’s convictions, issuing an opinion later submitted
for full text publication. United States v. Stavroff, 149 F.3d
478 (6th Cir. 1998). On August 3, 1998, Petitioner filed a
Petition for Rehearing and Suggestion for Rehearing En
Banc, raising the following issues:
(1) Whether the Right of Confrontation, once
violated, can be deemed harmless beyond a
reasonable doubt, where, as here, the star
government witness’ cross-examination on
the issue of his plea agreement and
corresponding expectation of leniency was
prohibited.
(2) Whether a_ prosecutor’s direct
examination of its star witness regarding his
obligation to testify truthfully pursuant to a
plea agreement can provide a constitutionally
sufficient substitute for the right of cross-
examination and enable jurors to
meaningfully evaluate credibility.
In an Order dated September 1, 1998, the Sixth
Circuit declined to rehear the case en banc and referred the
case to the original panel members, who likewise declined
to rehear the case. Petitioner now seeks a Writ of
Certiorari in this Court for review of the Sixth Amendment
issues raised in the trial court and in the Sixth Circuit.
ARGUMENT
In direct violation of the Confrontation Clause and
this Court’s well-established precedent, the Sixth Circuit has
fabricated a rule of law that prohibits a criminal defendant
from cross-examining a cooperating government informant
regarding his or her hopes and expectations of lenient
treatment from the prosecutor. Accordingly, Supreme Court
review is essential to eliminate the unconstitutional Sixth
Circuit precedent and preserve the integrity of the Sixth
Amendment Right of Confrontation.
I. SixTH CIRCUIT REASONING
As the Sixth Circuit recognized, the trial court
unequivocally violated Petitioner’s Right of Confrontation.
However, the Sixth Circuit declined to reverse, concluding
that the error was harmless beyond a reasonable doubt.
Stavroff, 149 F.3d at 478-483.
In support of its conclusion, the Sixth Circuit
ostensibly relied upon the harmless error analysis provided
by this Court in Delaware v. Van Arsdall, 475 U.S. 673
(1986). While the court’s opinion correctly enumerated the
five-part harmless error test set forth in Van Arsdall,’ its
2In Van Arsdall, this Court set forth the following five-
factor test to determine whether a Sixth Amendment
violation is harmless beyond a reasonable doubt:
The correct inquiry is whether, assuming that
the damaging potential of the cross-
examination were fully realized, a reviewing
court might nonetheless say that the error
was harmless beyond a reasonable doubt.
Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the importance
9
decision ultimately turned upon an_ unconstitutional
expansion of the harmless error doctrine far beyond the
contemplation of Van Arsdall.
The factors listed in Van Arsdall were not
exclusive. Rather, the Court recognized that
a harmless-error analysis ‘in a particular case
depends upon a host of factors, all readily
accessible to reviewing courts.’ 475 U.S. at
684. Therefore, we conclude that the
presence of facts in the record sufficient to
permit a reasonable juror to infer bias on the
part of Dosky rendered any error by the
district court in limiting impeachment for
bias harmless beyond a reasonable doubt.
Stavroff, 149 F.3d at 483 (emphasis added).
Relying on the “host of factors” language in Van
Arsdall, the Sixth Circuit reasoned that because the plea
agreement, along with the government’s direct examination
of Dosky, provided information regarding the terms of his
of the witness’ testimony in the
prosecution’s case, whether the testimony
was cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points,
the extent of cross-examination otherwise
permitted, and of course, the overall strength
of the prosecution’s case.
Van Arsdall, 475 U.S. at 684.
10
4
oe
cooperation and his promise to testify truthfully, the
prohibition of cross-examination on issues of bias and
expectations of leniency was harmless beyond a reasonable
doubt.2 The Sixth Circuit thus created a standard that
allows a trial court to preclude cross-examination and
permit as a substitute self-accrediting evidence adduced by
the government in its case-in-chief.’
‘Ironically, the direct examination only served to
accredit, not impeach, Dosky. Moreover, the written
agreement merely reiterated in writing that Dosky would
testify truthfully. In the absence of any cross-examination
on the circumstances underlying the plea negotiations and
Dosky’s expectations of leniency, the jury could conclude
only that Dosky must be testifying truthfully.
‘The information elicited by the government from
Dosky in Petitioner’s case did not cover the proposed area
of cross-examination. The proposed cross-examination
related to the witness’ bias and expectations of leniency
associated with his plea agreement. The witness’ direct
testimony simply stated that he had agreed to testify
truthfully pursuant to the terms and conditions of the plea
agreement. This testimony served no purpose other than to
accredit the government’s Dosky’s character for
truthfulness. Neither the direct examination nor the signed
plea agreement referenced the witness’ potential bias and
expectations of leniency. Thus, even if the Sixth Circuit
relied upon an appropriate standard, its reasoning is
inherently and unconstitutionally flawed, as the
government’s direct examination was not a valid factual
substitute for the proposed cross-examination.
1]
The Sixth Circuit’s decision misstates and
unconstitutionally expands the appropriate harmless error
standard in violation of the Sixth Amendment Right of
Confrontation and well-established Supreme Court authority.
I]. BASIS FOR WRIT OF CERTIORARI
Rule 10 of the Rules of the Supreme Court of the
United States sets forth a non-exhaustive list of the
circumstances wherein the Court may grant the discretionary
Writ of Certiorari. Two of these circumstances are present
in the instant case. First, as contemplated by Rule 10(c),
the Sixth Circuit, in consideration of the natural, logical
extension of its reasoning, “has decided an important
question of federal law that has not been, but should be,
settled by this Court.” In so doing, it “has decided an
important federal question in a way that conflicts with
relevant decisions of this Court.” Sup. Cr. R. 10(c).
Second, as contemplated by Rule 10(a), the Sixth Circuit’s
novel and erroneous reasoning “has so far departed from the
accepted and usual course of judicial proceedings, or
sanctioned such a departure by the lower court, as to call
be]
for an exercise of this Court’s supervisory power . .
Sup. Cr. R. 10(a).
A. Unsettled Law & Conflicting Authority
1. Unsettled Law
The Sixth Circuit purported to rely upon this Court’s
decision in Van Arsdall. However, the Sixth Circuit based
its decision not upon the well-established five factors set
forth in Van Arsdall, but upon the general “host of factors”
language contained in the Van Arsdall opinion.
Each element of the five-factor test set forth in Van
Arsdall is clearly defined and provides a concrete basis for
analyzing a particular violation of the Sixth Amendment.
However, the “host of factors” language, which appears to
permit courts to consider factors not specifically
enumerated, is far less specific. Therefore, clarification of
this language is necessary to prevent an unconstitutional
expansion of the harmless error doctrine.
Petitioner’s case exemplifies the need to clarify and
further refine the extent of discretion vested by the “host of
factors” language. Relying on a vastly overbroad expansion
of this terminology, the Sixth Circuit extended the harmless
error standard far beyond the original intent suggested by
this Court in Van Arsdall. In essence, the Sixth Circuit has
sanctioned a new rule of trial procedure that eliminates
defense cross-examination by rendering virtually all Sixth
Amendment violations harmless.
The focus of the Van Arsdall five-factor test was
whether, despite the Sixth Amendment violation, the
accused was otherwise able to attack the witness’ credibility
13
effectively and completely.’ In contrast, the Sixth Circuit
based its decision in Petitioner's case upon the direct
examination by the prosecution, not the cross-examination
by the accused. Under this expansive Sixth Circuit
standard, the prosecution may prevent damaging cross-
examination of its witnesses by eliciting direct testimony,
under non-adversarial conditions, on topics that would
otherwise be the subject of cross-examination. In reaching
‘ts conclusion, the Sixth Circuit cited no authority and
provided no meaningful factual or legal analysis to support
its decision.
Petitioner recognizes that the Writ of Certiorari “is
rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated
rule of law.” Sup. CT. R. 19. However, the error in
Petitioner's case involves far more than a misapplication of
the proper law. The Sixth Circuit has enunciated a novel
‘Thus. harmless error often arises where the prohibited
cross-examination was redundant with former or later cross-
examination. Therefore, in these types of situations, a
technical confrontation violation is rendered harmless, as the
accused has been provided an opportunity to explore |
otherwise the prohibited cross-examination. See, ¢&.,
Carrillo v. Perkins, 723 F.2d 1165 (5th Cir. 1984); and |
United States v. Garza, 754 F.2d 1202 (Sth Cir. 1985). |
Contrary to this typical situation, Petitioner had no
opportunity to cross-examine Dosky, the essential
government informant.
14
standard of law based upon an unconstitutional expansion
of the harmless error doctrine established in Van Arsdall.
If permitted to remain intact, the unprecedented expansion
of law will effectively eliminate the fundamental Right of
Confrontation by rendering all violations harmless.
Accordingly, it is essential for this Court to eliminate the
Sixth Circuit’s unconstitutional expansion of Van Arsdall
and thereby preserve the fundamental Right of
Confrontation.
2. Inconsistent Authority
The Sixth Circuit decision conflicts with well-
established Supreme Court authority. In Davis v. Alaska,
415 U.S. 308 (1974), this Court found reversible error
where a criminal defendant was prohibited from cross-
examining a key government witness on issues of bias,
motive, or other reasons to fabricate testimony. Although
the proposed cross-examination in Petitioner’s case was
virtually identical to that in Davis, the Sixth Circuit
determined that the Sixth Amendment violation was
harmless error, thereby ignoring controlling Supreme Court
precedent.
In Davis, the defendant was accused of stealing a
safe from a bar. During trial, the government presented
evidence that the police had found paint chips on the safe
that matched the paint on the defendant’s car. The
government also offered testimony from a witness who had
15
seen the defendant holding a crowbar near the location
where the safe was recovered. Defense counsel sought to
cross-examine this witness regarding his juvenile
probationary status relating to a prior theft conviction,
which had a direct bearing on credibility. The trial court
prohibited cross-examination in this area, and the defendant
was convicted.
On review, this Court reversed the conviction,
holding that the trial court violated the Sixth Amendment.
In so holding, this Court stated the following:
[D]efense counsel should have been
permitted to expose to the jury the facts
from which jurors, as the sole trier of fact
and credibility, could appropriately draw
inferences relating to the reliability of the
witness . . . [and] denfial] [of] the right of
effective cross-examination which would be
constitutional error of the first magnitude
and no amount of showing of want of
prejudice would cure it.
Id. at 318 (quoting Smith v. Illinois, 390 U.S. 129, 131
(1968)) (emphasis added).
In so holding, this Court determined that the trial
court’s limitation on defendant’s right to cross-examine the
prosecution’s star witness was not harmless error. /d. at
314 (citing Douglas v. Alabama, 380 U.S. 415, 418 (1965)).
The Court reached this conclusion despite the fact that the
16
paint chips on the safe provided additional direct evidence
linking the defendant to the criminal activity.
Petitioner’s case is factually similar to Davis. In
both, the trial court prohibited cross-examination of a
government witness on matters affecting credibility,
resulting in a violation of the Sixth Amendment. However,
the Sixth Amendment violation in Davis, where this Court
refused to find harmless error, was far less egregious than
the violation in Petitioner’s case. Unlike the situation in
Davis, the witness in Petitioner’s case presented the only
direct testimony linking Petitioner to the crimes charged and
the scie evidence establishing the required mental elements.
in contrast, the paint chips in Davis directly implicated the
defendant to the criminal activity, irrespective of the
witness’ testimony. As a result, Dosky’s testimony in
Petitioner’s case was significantly more important to the
government’s case than that of the witness in Davis.
Nevertheless, in direct contravention of this Court’s holding
in Davis, the Sixth Circuit determined that the error was
harmless beyond a reasonable doubt. The Sixth Circuit
decision ignores this Court’s controlling decision in Davis.
Accordingly, the decision in Petitioner's case is
contrary to controlling precedent set forth by this Court, as
contemplated by Rule 10(c). Review by this Court is
necessary to reaffirm the well-established authority set forth
in Davis, eliminate the Sixth Circuit’s unconstitutional
precedent, and preserve the fundamental protections
afforded by the Sixth Amendment Right of Confrontation.
*Petitioner recognizes that Davis was decided well
before Van Arsdall. Nevertheless, there is no valid
argument that merely because the Sixth Circuit relied upon
the later Supreme Court decision in Van Arsdall for its
harmless error analysis, the holding in Davis is not
controlling. The Van Arsdall test was clearly intended to
clarify the harmless error doctrine and provide lower courts
with further guidance in analyzing a particular Sixth
Amendment violation. However, Van Arsdall certainly was
not intended to overrule the landmark decision in Davis;
thus, Davis remains as controlling authority for similar fact
patterns. This Court in Davis would have reached the same
conclusion if the case were decided today, in consideration
of the later pronounced standards in Van Arsdall.
Accordingly, where, as here, a lower court purportedly
relies upon Van Arsdall to reach a conclusion opposite to
that dictated by Davis, the court has in effect decided a case
in direct contravention of controlling authority of this Court.
18
B. Departure from Accepted and Usual
Course of Judicial Proceedings
The Sixth Circuit has contrived a standard that
allows a trial court to eliminate a criminal defendant’s Right
of Confrontation and permit as a substitute evidence
adduced by the prosecutor during direct examination
accrediting the veracity of its own witness. This standard
is such a departure from the accepted and usual course of
judicial proceedings that it is necessary for this Court to
exercise its supervisory power in order to preserve the
integrity of the fundamental Right of Confrontation.
This Court has recognized the fundamental
importance of the Right of Confrontation in our system of
justice, characterizing adversarial cross-examination “as the
greatest legal engine ever invented for the discovery of
truth.” California v. Green, 399 U.S. 149, 158 (1970).
The Sixth Amendment guarantees adversarial confrontation
of one’s accusers:
The central concern of the Confrontation
Clause is to ensure the reliability of the
evidence against a criminal defendant by
subjecting it to rigorous testing in the
context of an adversary proceeding before
the trier of fact. The word confront, after
all, also means a clashing of forces or
19
ideas, thus carrying with it the notion of
adversariness.
Maryland v. Craig, 497 U.S. 836, 846 (1990) (emphasis
added).
This Court has also recognized the societal interest
in the preservation of the adversarial nature of the Right of
Confrontation:
On one level, the right to confront and cross-
examine adverse witnesses contributes to the
establishment of a system of criminal justice
in which the perception as well as the reality
of fairness prevails. To foster such a
system, the Constitution provides certain
safeguards to promote to the greatest
possible degree society’s interest in having
the accused and the accuser engage in an
open and even contest in public trial.
Lee vy. Illinois, 476 U.S. 530, 540 (1986) (emphasis added).
In direct contravention of these fundamental
principles, the Sixth Circuit decision establishes an
unconscionable precedent that allows a trial court to deprive
a defendant of the right to cross-examine a cooperating
government informant and permit as a substitute self-
promoting, accrediting evidence adduced by the
government. When taken to its logical conclusion, the
Sixth Circuit holding allows a trial court to prohibit cross-
examination on the essential issue of credibility if the
20
rR at 0 '-
government previously covered the topic on direct
examination. Prosecuting attorneys are now encouraged to
avoid damaging and constitutionally required cross-
examination of cooperating witnesses simply by exploring
vulnerable topics during their direct examination.
Sixth Circuit standard represents a clear departure
from fundamental Sixth Amendment jurisprudence. It is
axiomatic that the Sixth Amendment contemplates more
than a physical confrontation: “The main and essential
purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.” Davis, 415 U.S. 308,
315-16; Coy v. lowa, 487 U.S. 1012, 1019 (1988).
Moreover, “the exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of confrontation.” /d. at
316-17 (citing Greene v. McElroy, 360 U.S. 474, 496
(1959)). The Sixth Circuit precedent vitiates these
fundamental principles of confrontation.
Petitioner's case exemplifies the inherent
unconstitutional ramifications of the Sixth Circuit decision.
In a clear and undisputed violation of the Sixth
Amendment, trial counsel was prohibited from cross-
examining Dosky, the most important government witness,
regarding the benefits he expected to receive from the
government in exchange for his testimony.’ Despite the
egregious nature of the Sixth Amendment violation, the
Sixth Circuit held that the trial court’s error was harmless
beyond a reasonable doubt. As indicated above, the panel
reasoned that the plea agreement, which was submitted into
evidence by the government, along with the direct testimony
of Dosky, presented a sufficient factual basis “to permit a
reasonable juror to infer bias on the part of Dosky... .”
Stavroff, 149 F.3d at 483. The decision, which was
recommended for full text publication, is devoid of any
Supreme Court or other circuit court authority to support its
barren conclusion that the Sixth Amendment can be
adequately protected by the prosecutor’s direct examination
of its own cooperating witness.
The danger of the Sixth Circuit’s novel precedent is
apparent. The information contained in the plea agreement
as elicited during Dosky’s direct examination made no
reference to his expectations of leniency, the extent of the
favorable treatment he would receive, or the facts and
’The Sixth Amendment violation was compounded by
the trial court’s improper statement in the presence of the
jury that Dosky’s “hopes [have] nothing to do with the guilt
or innocence of this defendant.” The Sixth Circuit
acknowledged the impropriety of the trial court’s conduct,
yet concluded that the trial court “in no way gave any
indication as to his cpinion of Dosky’s credibility.”
Stavroff, 149 F.3d at 483.
circumstances underlying the plea negotiations. These areas
represented the essence of Petitioner’s intended but
prohibited cross-examination. The self-serving evidence
presented by the government through direct examination
established only that Dosky had agreed to testify truthfully.
Naturally, as this information was presented during the
government’s case-in-chief, it is was wholly supportive of
Dosky’s credibility, which was indispensable to the
government’s case. Neither the government's direct
examination nor terms and conditions of the plea agreement
had any impeachment value whatsoever. °
‘On the contrary, the prosecutor’s direct examination
merely served to accredit its star witness by placing the
government’s authority behind the assurance that the
witness would testify truthfully. In reality, the government
improperly offered character evidence supporting its
witness’ truthfulness, -in direct contravention to FED. R.
EviD 608(a), which provides that “evidence of truthful
character is admissible only after the character of the
witness for truthfulness has been attacked... .” Ironically,
the crux of the Sixth Circuit’s reasoning, which finds
harmless error based upon the prosecutor’s direct
examination on the subject of truthfulness, relies upon a
clear violation of Rule 608 and the well-established
principle common law principle that “[c]haracter evidence
is in support of credibility is admissible . . . only after the
witness’ character has first been attacked.” Advisory
Committee Notes, FED. R. EviD 608(a).
23
As a result, the jury was deprived of any information
regarding Dosky’s expectations of leniency and _ the
circumstances underlying his plea agreement. The jury had
no opportunity to evaluate Dosky’s demeanor while
testifying under rigorous cross-examination on these issues.
The trial court’s prohibition, as sanctioned by the Sixth
Circuit, destroyed “the greatest legal engine ever invented
for the discovery of truth.” California v. Green, 399 U.S.
at 158. There was no “clashing of forces or ideas,” as
contemplated by the ordinary and usual course of the trial
process in our justice system. Craig, 497 U.S. at 846.
Dosky’s credibility, the key factor in the government’s case,
was never tested through cross-examination, and Petitioner
was convicted.
In sum, the Sixth Circuit decision emasculates the
integrity of the Sixth Amendment and adversarial process
by creating an unprecedented rule of law that permits a trial
court to eliminate cross-examination by defense counsel on
areas crucial to credibility. This precedent undermines
fundamental! Sixth Amendment jurisprudence by eliminating
the most effective element of the Right of Confrontation:
adversarial cross-examination. The Sixth Circuit’s proposed
substitute--direct examination by the government--cannot
constitutionally replace cross-examination. Accordingly, the
Sixth Circuit as so far departed from the accepted and usual
course of judicial proceedings that it is now necessary for
this Court to exercise its supervisory power in order to
24
preserve the integrity of the fundamental Right of
Confrontation as guaranteed by the Sixth Amendment.
CONCLUSION
The Sixth Circuit extended the harmless error
analysis to such an extreme that the Sixth Amendment
Right of Confrontation has been rendered meaningless.
This case presents an opportunity to reaffirm the
fundamental importance of adversarial cross-examination
and eliminate the unprecedented rule of law created by the
Sixth Circuit. Accordingly, for the aforementioned reasons,
Petitioner respectfully requests this Court to grant the Writ
of Certiorari.
Respectfully submitted,
R. William Meeks
511 South High Street
Columbus, Ohio 43215
(614) 228-4141
Counsel of Record for Petitioner
Table of Appendix Contents
+
SIXTH CIRCUIT OPINIONS & ORDERS:
Order Denying Petition for Rehearing &
Suggestion for Rehearing En Banc,
Sept. 1, 1998, No. 97-3216 ...........
United States v. Stavroff, 149 F.3d 478
Cs Ga Se a ee ee eee eee bs
Order Granting Release,
June 3, 1997, No. 97-3216 ..............
SOUTHERN DISTRICT OF OHIO
OPINIONS & ORDERS:
Order Denying Motion to Reconsider
Stay Pending Appeal,
April 16, 1997, Case No. 96-00097 ..........
Order Denying Motion to Stay
Sentence Pending Appeal,
February 24, 1997, Case No. 96-00097 .......
Judgment in a Criminal Case,
February 11, 1997,
6 ee ene ee
|
Table of Appendix Contents, Continued
*
Memorandum Opinion and Order,
October 17, 1996,
Cees Pl SD 5g os oo oe oes be es B21-B26
Order,
et rey errr rr B27
STATUTES AND RULES:
Tot oe 6, le ewer re ae Cl
ait Com wt) a ere C2-C4
Advisory Committee Notes, FED. R. EviD 608 .. C5-C6
Se) 2 Sern errs ere, ere C7-C12
CONSTITUTIONAL PROVISION:
eo Pee eee OWE og 5 oa kv a D1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
+
ORDER DENYING PETITION
FOR REHEARING EN BANC
Sixth Circuit Case N°. 98-3126
Filed September 1, 1998
+
Pages A-1 thru A-]
98-3126
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
6th Circuit
a ee , , . Court of Appeals
UNITED STATES OF AMERICA, | “°8iiea 9/1798
Plaintiff-Appellee,
J
)
V. ) ORDER
)
FRANK STAVROFF,
Defendant-A ppellant.
BEFORE: KENNEDY, GUY, and NORRIS,
Circuit Judges.
he court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a
vote on the suggestion for rehearing en banc, the petition
for rehearing has been referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
's/ Leonard Green
Leonard Green. Clerk
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OPINION
Sixth Circuit Case N°. 98-3126
Pages A-2 thru A-21
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
Electronic Citation: 1998 FED App. 0216P (6th Cir.)
File Name: 98a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA.
Plaintiff-Appellee,
—
‘RANK STAVROFF.
)
)
)
v ) No. 97-3126
)
)
Defendant-A ppellant
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 96-00097--Joseph P. Kinneary, District Judge.
Argued: June 15, 1998
Decided and Filed: July 20, 1998
Before: KENNEDY, GUY, and NORRIS, Circuit Judges.
COUNSEL
ARGUED: R. William Meeks, Columbus, Ohio, for
Appellant. Daniel Allen Brown, OFFICE OF THE USS.
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF:
R. William Meeks, John Boyd Binning, Columbus, Ohio,
for Appellant. Daniel A. Brown, OFFICE OF THE U.S.
ATTORNEY, Columbus, Ohio, for Appellee.
OPINION
RALPH B. GUY, JR., Circuit Judge. Defendant
appeals his convictions for conspiracy to commit tax fraud
in violation of 18 U.S.C. § 371 and for filing false
individual tax returns in violation of 26 U.S.C. § 7206(1).
He contends that the district court (1) deprived him of his
right to confront witnesses by limiting cross-examination of
a government witness regarding that witness’ motivation in
testifying; (2) deprived him of his right to an impartial jury
by commenting that the witness’ motivation had no relation
to defendant’s guilt or innocence; and (3) erred in admitting
certain documents under the hearsay exception for business
records. Based upon our review of the record, we conclude
that the court erred in limiting cross-examination in the
manner it did, but that the error was_ harmless.
Accordingly, we affirm.
I.
Defendant, Frank Stavroff, was indicted along with
two co-defendants, Franz J. Schwarzbach and Robert T.
Hetzel, in a ten-count indictment alleging conspiracy to
commit tax fraud and underreporting of income. His co-
defendants pleaded guilty to the conspiracy charge and
Stavroff was tried before a jury. He was convicted on all
relevant charges. One of his co-conspirators, Steven Dosky,
A-3
¥ Ge eee ae
who was separately indicted and pleaded guilty to
conspiracy, testified on behalf of the government. At trial,
evidence was presented that showed that Stavroff,
Schwarzbach, Hetzel, and Dosky, were owners of a
Columbus, Ohio, nightclub called "Spinners." From 1991
through 1993, these men methodically skimmed the profits
of the club to underreport income. The company formed to
own Spinners, 2171, Inc., was a closely-held corporation
and profits were directly taxable to the shareholders based
on their percentage of ownership. Stavroff owned 20
percent, Dosky owned 13-1/3 percent, and Schwarzbach and
Hetzel each owned 33-1/3 percent. The shareholders
divided the actual cash profits on a weekly basis but
reported a lesser figure to their bookkeepers for tax
purposes. The company also failed to report accurately to
its bookkeepers the number of its employees and their
wages.
The record also showed that Stavroff was one of
three equal owners of SES Liquor Company (SES), along
with Schwarzbach and another individual, who was
unrelated to 2171, Inc. SES operated a nightclub known as
the "Gables Lounge." Although not charged as a separate
offense under the indictment, the evidence showed that the
SES profits were skimmed in the same manner as those of
2171, Inc. This information was withheld from SES’s
bookkeeper. SES also underreported the size of its staff.
A-4
Following his conviction, Stavroff was sentenced to
16 months imprisonment, assessed a $10,000 fine, and was
ordered to serve two years of supervised release. This
appeal followed.
Il.
A. Limited Cross-Examination
Stavroff first challenges the district court’s limiting
of his cross-examination of co-conspirator, Steven Dosky,
who testified for the prosecution. At the end of defense
counsel’s cross-examination of Dosky, counsel raised the
issue of Dosky’s plea agreement under which Dosky agreed
to testify for the government. At the time of trial, Dosky
had not yet been sentenced. The exchange proceeded as
follows:
Q Mr. Dosky, by a bill of information
you pled guilty to one count of conspiracy in
the United States Federal District Court; is
that correct?
A That is correct.
Q And one of the hopes in your
entering --
THE COURT: One of the what?
What did you say, one of the what?
MR. BINNING: Through the means
of a bill of information, your Honor, you
entered a plea of guilty to one count of
conspiracy.
A-5
Bis Nin Sita BH
THE COURT: What was your next
question to this witness?
MR. BINNING: After that question,
your Honor?
THE COURT: Yes. One of your
hopes, is that what you said?
MR. BINNING: No, sir. I hadn’t
gotten to that question yet.
THE COURT: Go ahead.
MR. BINNING: Thank you, your
honor.
Q By entering the plea, you hoped to
lessen any personal exposure --
THE COURT: Do you object to that
question?
MR. BROWN [the _ prosecuting
attorney]: No, I can’t, your Honor. I can’t
object to that question.
THE COURT: You what?
MR. BROWN: I’m sorry, I cannot
object to that question. I apologize.
THE COURT: Go ahead. Go ahead.
MR. BINNING: Thank you, your
honor.
Q By entering the plea of guilty to the
conspiracy count, it was your intention to
A-6
lessen your exposure regarding any penalty
that might be imposed upon you; correct?
THE COURT: Regarding the what?
MR. BINNING: _ Regarding any
penalty that might be imposed upon you.
THE COURT: I won't let you
answer that question. Strike that question.
Go ahead. His hopes has nothing to do with
the guilt or innocence of this defendant.
Now go ahead.
MR. BINNING: May I approach the
bench, your Honor?
THE COURT: No, you may not.
Q Why did you enter a plea to one
count of conspiracy?
THE COURT: What?
MR. BINNING: Your Honor, | will
strike that. May I approach the bench?
THE COURT: No, you may not.
MR. BINNING: May I proffer
something on the record?
THE COURT: You may at recess.
Whatever you want to do.
MR. BINNING: Thank you, sir.
THE COURT: Are you through with
this witness?
A-7
MR. BINNING: Yes, your Honor, I have completed
my examination.
Later, Stavroff made a proffer related to the excluded cross-
examination:
THEREUPON, OUT OF THE HEARING
AND PRESENCE OF THE COURT AND
JURY, THE FOLLOWING PROFFER WAS
MADE:!
MR. BINNING: If the Court please,
I object to the restriction of the defendant’s
right to full and fair and complete cross-
examination of the witness Steven Dosky in
the areas of truthfulness, credibility and also
motivation in entering a plea before the
Honorable Judge Graham in the United
States District Court.
Additionally, in relation to the
proffer, if | would have been permitted to
continue with the line of questions, I believe
that it very definitely had a bearing on this
witness’ credibility in relation to his
accusations regarding my client.
Thank you.
‘We express our strong disapproval of proffers being
made when the trial judge is not present.
A-8
MR. BROWN: If he would have
been permitted to ask questions in ithose
areas, I had rehabilitation kinds of evidence
| think available, mostly testimony that now
| am unable to use. So I mean I am not
agreeing with him; it’s just that I don’t think
that would have been all one-sided.
The Confrontation Clause of the Sixth Amendment
guarantees an accused "the right . . . to be confronted with
the witnesses against him." The Supreme Court has
recognized "’that the exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination.’"
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)
(quoting Davis v. Alaska, 415 U.S. 308, 316-17 (1974)). A
criminal defendant states a violation of that right "by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors
. could appropriately draw inferences relating to the
reliability of the witness."" Van Arsdall, 475 U.S. at 680
(quoting Davis, 415 U.S. at 318)).
The denial of a defendant’s opportunity to impeach
a witness for bias, however, is subject to a "harmless-error
analysis." 475 U.S. at 684. According to the Court:
A-9
P|
i
%
The correct inquiry is whether, assuming that
the damaging potential of the cross-
examination were fully realized, a reviewing
court might nonetheless say that the error
was harmless beyond a reasonable doubt.
Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the importance
of the witness’ testimony in_ the
prosecution’s case, whether the testimony
was cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points,
the extent of cross-examination otherwise
permitted, and, of course, the overall
strength of the prosecution’s case.
Id.
In this case, Stavroff contends the district court
improperly prohibited him from attempting to impeach
Dosky for bias. We agree.
We first express our disapproval of the court, sua
sponte, barring the question at issue after the government
had refused to object to the question. We see any number
of problems with the way in which the court proceeded.
Although the trial judge does not have to be a passive
bystander, the court should avoid interjecting itself
A-10
unnecessarily into the questioning of an important witness,
particularly in a criminal case. It is not the job of the trial
judge to try the case for the government. Here, for
example, the government found the question
unobjectionable. However, even if the question had been
clearly objectionable, the government-may have elected for
strategic reasons not to object. The trial judge should not
assume that every failure to object is the result of a failure
to recognize the possible objection that might be made.
From a defendant’s standpoint, a court’s sua sponte
exclusion of a question unduly highlights it for the jury and
may unfairly cast defense counsel in a bad light. If a trial
judge feeis he must take some action, a side-bar conference
outside the hearing of the jury would be an alternate and
preferable way to proceed. In addition, the right of a
defendant to cross-examine and confront witnesses in a
criminal case is key to a defendant being able to mount a
defense. The court should not truncate this right on its own
motion unless it is necessary to do so to avoid a serious
miscarriage of justice.
We also express our disapproval of the manner in
which the proffer was handled by the court and defense
counsel. The proffer was wholly inadequate in that it only
referenced generally that credibility was at issue and did not
provide enough information as to specifically what would
have been asked and the specific answers anticipated. Even
if defense counsel had done this, however, the trial judge
A-1]
%
=
)
Fj
3
oe
would not have heard it since he was not present at the
proffer. This is not an appropriate procedure. Although
one purpose of a proffer is to protect the appellate record,
a proper proffer also gives the court an opportunity to
revisit its ruling.
Notwithstanding our criticism of what occurred, we
nonetheless conclude that any error was harmless as a
matter of law. In particular, the record shows that the jury
had before it "facts from which bias, prejudice or lack of
credibility of a prosecution witness might be inferred.’"
Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989)
(quoting United States v. Garrett, 542 F.2d 23, 25 (6th Cir.
1976)). Dosky’s plea agreement was admitted into evidence
as a government exhibit during direct examination of Dosky
by the prosecution. During that examination, Dosky was
asked specific questions relating to the terms of that
agreement:
Q In order for you to testify here today, you
did something. did you not, relative to the processes
of the court?
A ¥es.
Q What did you do?
A I pled guilty.
Q To what?
A One count of conspiracy.
Q So you are convicted of a felony crime as
you sit here today.
A-12
A Yes, | am.
Q You signed a plea agreement.
A Yes, I did.
MR. BROWN: May I approach this witness,
your Honor?
THE COURT: Yes.
Q Did you sign only one plea agreement?
A Yes.
Q Is that the one plea agreement you signed?
Check the last page.
A Yes, it 1s.
MR. BROWN: May I have a moment? |
should have put an exhibit sticker on it. | will just
call this Government’s Exhibit 9.
Q Mr. Dosky, other than that plea agreement
that you signed -- with advice of counsel, | take it;
correct?
A Yes, sir.
Q -- do you have any other agreement with the
United States?
A No, I don’t.
THE COURT: You might ask him a
question explaining to this jury what a plea
agreement is, why it is entered into and what it
provides for.
MR. BROWN: Thank you.
Q What did you agree to do in this plea
agreement?
A I agreed to --
THE COURT: And who did you agree
with?
THE WITNESS: I agreed with the United
States to --
THE COURT: You mean the United States
Attorney?
THE WITNESS: United States Attorney to
offer my testimony truthfully and to explain my
actions as it related to this investigation.
Q According to the plea agreement, does it say
anything about what is going to happen to you if
you don’t tell the truth?
A Yes. | believe it states that the plea
agreement will be null and void.
Q Doesn't it also say that you will be charged
with perjury or making a false statement?
A I believe that it does, yes.
Q But otherwise, | think its [penultimate]
paragraph of that document, second to last paragraph
of that document, | think it indicates that if you
provide truthful testimony, we will inform the Court
of that; correct?
A Yes, it does.
Q So you haven’t been sentenced yet
A-14
A No, I have not.
Q You are going to appear before a judge in
this building to be sentenced at some future time;
correct?
A Yes, I will.
Q And you expect that we will report -- this
office, the United States Attorney's Office, will
report to the Court about what it is you have done
and what you haven’t done to faithfully observe this
plea agreement, which is Government’s Exhibit 9,
prior to sentencing; correct?
Defendant insists that harmless error has not been
shown under the "five Van Arsdall factors." He argues that
the error was not harmless because Dosky was an important
witness, his testimony was not cumulative, certain aspects
of the testimony were not. corroborated, no cross-
examination was permitted on his motivation in testifying,
and the prosecution’s case, without Dosky, was weak.
Defendant’s argument is unavailing. The factors
listed in Van Arsdall were not exclusive. Rather, the Court
recognized that a harmless-error analysis "in a particular
case depends upon a host of factors, all readily accessible
to reviewing courts." 475 U.S. at 684. Therefore, we
conclude that the presence of facts in the record sufficient
to permit a reasonable juror to infer bias on the part of
Dosky rendered any error by the district court in limiting
A-15
SER IO ahd
ie RRA DARERLS Sica ee oe 12's
impeachment for bias harmless beyond a reasonable doubt.”
Finally, we note that defense counsel had any
number of ways available to further pursue the question
ruled objectionable. It is more probable than not that the
trial judge was voicing an abjection only as to the form of
the question. There is nothing from which even an
inference can be drawn to suggest the trial judge was
prohibiting defense counsel from exploring the general area
of this witness’ credibility and possible bias.
B. Judicial Commentary
In his second issue on appeal, Stavroff challenges
the district court’s comment that Dosky’s motivation for
testifying did not relate to defendant’s "guilt or innocence."
That comment, he claims, deprived him of his Sixth
Amendment right to an impartial jury by "confirm[ing] the
witness’ credibility, thus encroaching upon the jury’s
province to determine truthfulness."
We disagree with defendant’s characterization of
what occurred. At most, the trial judge, sua sponte, ruled
in front of the jury that as a matter of law the defense’s line
of questioning was irrelevant. He in no way gave any
*We also note that Dosky’s testimony, while essential to
the conspiracy charge, was not necessary for the
underreported income charges. Stavroff received
concurrent, indentical sentences on all of these charges.
A-16
indication as to his opinion of Dosky’s credibility. To the
extent the court’s comment could be inferred by the jury as
an instruction to disregard any improper motivation by
Dosky, we review whether, considering the charge to the
jury as a whole, the court fairly and accurately submitted
the issues and the applicable law to the jury. Miller v.
Taylor, 877 F.2d 469, 471 (6th Cir. 1989). An erroneous
or ambiguous statement will not be cause for reversal unless
it is likely that this improper statement, in the context of the
entire charge, misled the jury. Hurt v. Coyne Cylinder Co.,
956 F.2d 1319, 1324 (6th Cir. 1992).
A review of the court’s instructions in their entirety
shows that notwithstanding the court’s comments, the jury
was not misled. In instructing the jury at the conclusion of
the evidence, the court expressly referenced the exhibits that
had been admitted into evidence, which included Dosky’s
plea agreement, as relevant for consideration in reaching a
verdict. The court alluded to the instructions to the jury
pertaining to the "credibility of witnesses," including
"impeachment." The district judge elaborated on the
instruction pertaining to witnesses who have pleaded guilty,
stating:
You have heard testimony from Steve
Dosky. This witness pleaded guilty to
crimes arising out of the same occurrence for
which the defendant is now on trial. You
may consider evidence of a witness's guilty
A-17
plea as it relates to the credibility of that
witness. You may not, however, consider
the guilty plea of any person as evidence of
guilt on the part of the defendant in this
case.
(Emphasis added). The court specifically addressed the
potential bias inherent in Dosky’s plea agreement:
You have also heard that the
government has promised Mr. Dosky that it
would inform his sentencing court of his
cooperation in this case.
It is permissible for the government
to make such a promise, but you should
consider Mr. Dosky’s testimony with more
caution than the testimony of other
witnesses. Consider whether his testimony
may have been influenced by the
government’s promise.
il Business Records
Lastly, Stavroff takes issue with the district court’s
admission under the hearsay exception for business records,
Fed. R. Evid. 803(6), of the 1992 and 1993 financial
ledgers for the Gables Lounge. Rule 803(6) provides as
follows:
Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
A-18
made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether
or not conducted for profit.
This circuit has held that a document is admissible under
the rule if it satisfies the following four requirements:
(1) it must have been kept in... a
regularly conducted business activity; (2) it
must have been kept in the regular course of
that business; (3) the regular practice of that
business must have been to have made the
memorandum; and (4) the memorandum
must have been made by a person with
knowledge of the transaction or from
information transmitted by a person with
knowledge.
Bondie v. Bic Corp., 947 F.2d 1531, 1534 (6th Cir. 1991).
Defendant argues that the rule does not apply,
however, because the source of the information contained
A-19
4
i
a
4
2
}
2
$
SGT rr ek crue
a i ae a ey RAI he
in these ledgers and the method or circumstances of
preparation lack trustworthiness. The record does not
identify the author of each of the entries contained in the
ledgers. Defendant further refers to the testimony by one
of the declarants, David Van Meter, that he "was not
accountable" for his entries.
Neither of these charges has merit. A declarant does
not have to be the source of the information recorded in
business records. Bondie, 947 F.2d at 1534. Rather, the
witness’ lack of personal knowledge goes to the credibility
that should be accorded that witness’ testimony. United
States v. Sachs, 801 F.2d 839, 843 (6th Cir. 1986). The
Gables Lounge ledgers were introduced into evidence
through the custodians of those records, the club’s
managers. The information contained in the ledgers
recorded the cash register receipts at the end of each work
shift. A substantial number of the entries had been
recorded by the managers themselves from the cash
register’s ticket tapes. Nor is there any evidence that these
figures were not accurately recorded. Notwithstanding Van
Meter’s comments regarding accountability, on further
questioning by the judge, he admitted that his entries
“matched the cash register receipts.". Indeed, it was the
manager’s job to see that the receipts were entered into the
ledgers. Under these circumstances, we conclude a proper
foundation was established for the admissibility of the
ledgers. The jury remained free to assign whatever weight
A-20
it found appropriate to the evidence. Moreover, we note
that these ledgers were not the ledgers underlying
defendant’s charge of conspiracy to commit tax fraud.
Those ledgers, which defendant does not challenge, related
to the Spinners nightclub and were introduced into evidence
through Dosky.
AFFIRMED.
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER GRANTING RELEASE
Sixth Circuit Case N°. 98-3126
Filed June 3, 1997
Pages A-22 thru A-23
Wei es:
No. 97-3126
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
6th Circuit
UNITED STATES OF AMERIC
CRILA, Court of Appeals
Plaintiff-Appellee, Filed 6/3/97
)
v. ) ORDER
)
FRANK STAVROFF, )
Defendant-A ppellant. )
Before: MERRTTI, CONTIE, and SUHRHEINRICH,
Circuit Judges
The defendant appeals his conviction and sentence
on one count of conspiracy to defraud the United States and
three counts of tax fraud. He now moves for release on
bail pending disposition of his appeal. The government
opposes the motion.
To establish entitlement to release pending appeal,
a person found guilty of an offense and sentenced to a term
of imprisonment must show 1) by clear and convincing
evidence, that he is not likely to flee or pose a danger to the
safety of another person or the community, and 2) that the
appeal is not for delay and raises a substantial question of
law or fact likely to result in reversal, and order for new
trial, a sentence that does not include a term of
imprisonment, or a sentence reduced to a term of
imprisonment less than the total of the time already served
plus the expected duration of the appeal process. 18 U.S.C.
§ 3143(b); United States v. Pollard, 778 F.2d 1177, 1181
(6th Cir. 1985). This statute creates a presumption against
release pending appeal. United States v. Vance, 851 F.2d
166, 168-69 (6th Cir.), cert. denied, 488 U.S. 893 (1988).
The district court has found that the defendant does
not present a flight risk or a danger to the community.
Therefore, the sole issue to be determined is whether the
defendant has raised a substantial question on appeal for
purposes of release under § 3143(b). A substantial question
is raised when the appeal presents a close question or one
that could go either way. United States v. Pollard, 778
F.2d at 1182. Upon consideration, we conclude that the
question of whether the district court erred in restricting
defense counsel’s cross-examination of a government
witness is substantial for purposes of granting release.
It is ORDERED that the defendant’s motion for
release on bail pending appeal is granted, subject to such
reasonable terms and conditions as the district court may fix
in its discretion. The district court is requested to set these
terms and conditions forthwith.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk
| APPENDIX B
UNITED STATES COURT OF APPEALS
SOUTHERN DISTRICT OF OHIO
ORDER DENYING MOTION TO
RECONSIDER STAY PENDING APPEAI
Filed April 16, 1997
Pages B-1 thru B-3
Sana bene enee aA wea seetie i is Delis wlannd iar 2<55
UNITED STATES DISTRICT COURT
SOUTHERN DISTRIC1 OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,}) Southern Dist.
ra of Ohio
Plaintiff, Filed 4/16/97
v. Case No. CR-2-96-97(003)
FRANK STAVROFF,
Defendant.
ORDER
This motion is before the Court on Defendant Frank
Stavroff’s (“Stavroff’) motion for reconsideration of this
Court’s Order denying Stavroff motion to stay his sentence
pending appeal. The Court DENIES Stavroff’s motion for
reconsideration.
A defendant bears the burden of proving that he or
she is entitled to release pending appeal. To satisfy that
burden, a defendant must show by clear and convincing
evidence (1) that he or she is not likely to flee or pose a
danger to the safety of another person or the community,
and (2) "that the appeal is not for the purposes of delay and
raises a substantial question of law or fact likely to result in
reversal or an order for new trial.’ 18 U.S.C. § 3143(b);
United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.
1985). A defendant is not entitled to release unless the
B-]
appeal raises a substantial question likely to result in
reversal of or an order for a new trial on all counts on
which imprisonment is imposed. United States v. Perholtz,
836 F.2d 554, 557 (D.C. Cir. 1987) (citing United States v.
Bilanzich, 771 F.2d 292, 298 n.6 (7th Cir. 1985)).
Stavroff was convicted by a Jury on one count of
conspiring to defraud the United States and three counts of
filing false tax returns. Stavroff is serving a term of
imprisonment of sixteen months on all four counts. (See
Doc. #62 p. 10.) In his current motion, Stavroff raises the
issue of whether the Court improperly restricted defense
counsel during his cross examination of the government’s
key witness, Steven Dosky.
The Court need not consider whether this issue
constitutes ‘a substantial a question of !aw or fact likely to
result in a reversal or an order for a new trial’ because even
if this issue is a substantial question, it only relates to one
of the three counts on which Stavroff is imprisoned. In an
Opinion and Order dated October 17, 1996, the Court found
that Stavroff's convictions for filing false tax returns were
supported by sufficient evidence to deny Stavroff’s motion
for a judgment of acquittal; Dosky’s testimony was
unnecessary for those convictions. (See Doc. # 44, p. 4.)
Moreover, after reviewing the sentencing guidelines applied
in this case, the Court concludes that the outcome of
Stavroff's appeal of the conspiracy count will not
substantially affect the guideline range. Therefore, even if
B-2
Stavroff raises a substantial question with respect to
Dosky’s testimony, that question would relate only to the
conspiracy count and would not entitle Stavroff to release
while his appeal on the other counts is pending, assuming
that Stavroff is appealing those counts.
Upon consideration and being duly advised, the
Court DENIES Stavroff's motion for reconsideration.
IT IS SO ORDERED.
s/ Joseph P. Kinneary
UNITED STATES DISTRICT JUDGE
APPENDIX B
UNITED STATES COURT OF APPEALS
SOUTHERN DISTRICT OF OHIO
ORDER DENYING MOTION TO
STAY SENTENCE PENDING APPEAL
Filed February 24, 1997
Pages B-4 thru B-6
Se eee
,
4
>
%
2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA, Southern Dist.
:| Regen of Ohio
Plaintiff, Filed 2/24/97 ||
Vv. Case No. CR-2-96-97(003)
‘ FRANK STAVROFF,
: Defendant.
ORDER
This motion is before the Court on Defendant Frank
Stavroff’s (‘Stavroff") motion to stay his sentence pending
appeal. The Court DENIES Stavroff’s motion.
A district Court’s decision regarding the release of
a defendant pending appeal is governed by the Bail Reform
Act (~the Act"), 18 U.S.C. § 3143. In recognition of the
basic principle that a conviction is presumed to be correct,
Congress passed the Act with the purpose of reducing the
number of convicted persona who remain at large while
pursuing their appeals. United States v. Powell, 761 F.2d
1227, 1232 (8th Cir. 1985) (quotations omitted).
Accordingly, the Act establishes a presumption against
release pending appeal. United States v. Vance, 851 F.2d
166, 168 (6th Cir. 1988).
B-4
i
4
|
The Defendant bears the burden of proving that he
or she is entitled to release pending appeal. To satisfy that
burden, a defendant must show by clear and convincing
evidence that (1) he or she is not likely to flee or pose a
danger to the safety of another person or the community,
and (2) that the appeal is not for delay and raises a
substantial question of law or fact likely to result in
reversal, an order for new trial, or a sentence that does not
include a term for imprisonment. 18 U.S.C. § 3143(b):
United Staten v. Pollard, 778 F.2d 1177, 1182 (6th Cir.
1985). "[A]n appeal raises a substantial question when the
appeal presents a ‘close question or one that could go either
way’ and that [sic] the question ‘is so integral to the merits
of the conviction that it is more probable than not that
reversal or a new trial will occur if the question is decided
in the defendant’s favor.’’ Pollard, 778 F.2d at 1182
(citation omitted). Stavroff fails to carry his burden to
show that his appeal raises a substantial question.
In his motion for release, Stavroff provides a list of
general issues he claims are substantial. (Doc #65 at p. 5.)
Stavroff fails, however, to develop any of these issues. He
makes no citations to the record to specifically identify the
alleged errors. He cites no authority and makes no legal
arguments that would indicate that these issues will present
a close question or one that could go either way. While the
Court finds that Stavroff is not likely to flee and does not
pose a danger to any person or to the community, "the mere
B-5
identification of issues does not demonstrate that an appeal
establishes a substantial question entitling the defendant to
release pending appeal under the Bai! Reform Act.” United
States v. Moore, 849 F.2d 1474, 1988 WL 63191 at *1 (6th
Cir.) (citing United States v. Pollard, 778 F.2d 1177. 1182
(6th Cir. 1985)).
Upon consideration, and being duly advised, the
Court hereby DENIES Stavroff’s motion to stay his
sentence pending his appeal.
IT IS SO ORDERED.
s/ Joseph P. Kinneary __
UNITED STATES DISTRICT JUDGI
APPENDIX B
UNITED STATES COURT OF APPEALS
SOUTHERN DISTRICT OF OHIO
JUDGMENT
Filed February 11, 1997
Pages B-7 thru B-20
NITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
1987)
FRANK STAVROFF
; | %
[HE I
through 6 of this judgment.
x > 2 \ a
(5). and eight (8) of the
UNITED STATES DISTRICT COURT
Southern District of Ohio
For Offenses
J. Boyd
JEFENDANT:
pleaded guilty to
Information/Indictment.
pleaded nolo
[Information/Indictment.
vas found guilty on counts one (1), two (2),
. y : .
Pullly
(Jl
7 mnSpirac I
ted state
| af a Cy
: —
2 Ise St
- cs
[he defendant is sentenced as provided in pages 2
it to the Sentencing Reform Act ol
of Ohio
Southern Dist.
Filed 2/11/97
UP
if
contendere to
Committed on or After November |
Binning, Esq.
‘ 7. ~t
>T nr)
Lt?
++
sasictment ear _nica
ingictment aliter a Di
ee
1984
Case Number CR-2-96-0097 (3)
[The sentence is imposed
_ The defendant has been found not guilty on counts __
of the Information/Indictment, and is discharged as to such
counts.
_ Counts __ of the Information/Indictment is/are dismissed
on the motion of the United States.
IT IS FURTHER ORDERED that the defendant
shall notify the United States attorney for this district within
30 days of any change of name, residence, or mailing
address until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid.
February 7, 1997
Date of Imposition of Sentence
/s/ Joseph P. Kinneary
Joseph P. Kinneary
United States District Judge
Feb 11, 1997
Date
B-8
IMPRISONMENT
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned for a
total term of SIXTEEN (16) MONTHS.
The Court makes the following recommendations to
the Bureau of Prisons:
The defendant is remanded to the custody of the
United States Marshal.
The defendant shall surrender to the United States
Marshal for this district,
x_ at 12:00 p.m. on February 14, 1997.
__ as notified by the Marshal.
|>
The defendant shall surrender for service of sentence
at the institution designated by the Bureau of Prisons
_ before2 p.m.on
__ as notified by the United States Marshal.
__ as notified by the Probation or Pretrial Service
Office.
B-9
RETURN
| have executed this Judgment as follows:
Defendant delivered on 3-3-97_ to _ FPC Ashland
at Ashland, KY_, with certified copy of this Judgment.
R. Allen smith
United States Marshal
Deputy U.S. Marshal
SUPERVISED RELEASE “
Upon release from imprisonment, the defendant shall
be on supervised release for a term of TWO (2) YEARS.
The defendant shall report to the probation office in
the district to which the defendant is release within 72 hours
of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal,
state, or local crime
The defendant shall not illegally possess a controlled
substance.
For offenses committed on or after September 13, 1994:
B-10
The de*endant shall refrain from any unlawful use
of a controlled substance. The defendant submit to one
drug test within fifteen (15) days of release from
imprisonment and at least two (2) periodic drug tests
thereafter, as directed by the probation officer.
e The above drug testing condition is
suspended based on the court’s determination
that the defendant poses a low risk of future
substance abuse.
The defendant shall not possess a firearm as defined
in 18 U.S.C. §921.
If this judgment imposes a fine or restitution
obligation, it shall be a condition of supervised release that
the defendant pay any such fine or restitution that remains
unpaid at the commencement of the term of supervised
release in accordance with the Schedule of Payments set
forth in the Criminal Monetary Penalties sheet of this
judgment.
The defendant shall comply with the standard
conditions that have been adopted by this Court (set forth
below). The defendant shall also comply with the additional
conditions on the attached page.
1)
6)
7)
8)
9)
STANDARD CONDITIONS OF SUPERVISION
the defendant shall not leave the Judicial district
without the permission of the court or probation
officer;
the defendant shall report to the probation officer
and shall submit a truthful and complete written
report within the first five days of each month;
the defendant shall answer truthful all inquiries by
the probation officer and follow the instructions or
the probation officer;
the defendant shall support his or her dependents
and meet other family responsibilities;
the defendant shall work regularly at a lawful
occupation unless excused by the probation officer
for schooling, training, or other acceptable reasons;
the defendant shall notify the probation officer 10
days prior to any change in residence or
employment;
the defendant shall refrain from excessive use of
alcohol;
the defendant shall not frequent places where
controlled substances are illegally sold, used,
distributed, or administered;
the defendant shall not associate with any persons
engaged in criminal activity, and shall not associate
B-12
10)
11)
with any person convicted of a felony unless granted
permission to do so by the probation officer;
the defendant shall permit a probation officer to visit
him or her at any time at home or elsewhere and
shall permit confiscation of any contraband observed
in plain view of the probation officer;
the defendant shall notify the probation officer
within seventy-two hours of being arrested or
questioned by a law enforcement officer;
the defendant shall not enter into any agreement to
act as an informer or a special agent of a law
enforcement agency without the permission of the
court;
as directed by the probation officer, the defendant
shall notify third parties of risks that may be
occasioned by the defendant’s crimina! record of
personal history or characteristics, and shall permit
the probation officer to make such notifications and
to confirm the defendant’s compliance with such
notification requirement.
B-13
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of
payments set forth on Sheet 5, Part B.
Count Assessment Fine Restitution
one $50.00 $10,000.00
two $50.00
five $50.00
eight $50.00
If applicable, restitution amount ordered pursuant to
plea agreement .............. $
Totals: $200.00 $10,000.00 §$
FINE
The above fine includes costs of incarceration and/or
supervision in the amount of $
The defendant shall pay interest on any fine of more than
$2,500, unless the fine is paid in full before the fifteenth
day after the date of judgment, pursuant to 18 U.S.C.
§3612(f). All of the payment options on Sheet 5. Part B
may be subject to penalties for default and delinquency
pursuant to 186 U.S.C. §3612(g).
B-14
ae
X The court has determined that the defendant does
not have the ability to pay interest and it is ordered
that:
_X The interest requirement is waived.
The interest requirement is modified as follows:
B-15
RESTITUTION
_ The determination of restitution is deferred in case
brought under Chapters 109A, 110, 110A, and 113A of
Title 18 for offenses committed on or after 09/13/1994,
until ss. ~An Amended Judgment in a Criminal Case
will be entered after such determination.
_ The defendant shall make restitution to the following
payees in the amounts listed below.
If the defendant makes a partial payment, each payee
shall receive an approximately proportional payment unless
specified otherwise in the priority order or percentage
payment column below.
Priority Order
or
Total Amount of Percentage of
Name of Payee Amount of Loss Restitution Ordered Payment
Totals $ $
* Findings for the total amount of losses are
required under Chapters 109A, 110, 110A, and 113A of
Title 18 for offenses committed on or after September 13,
1994,
SCHEDULE OF PAYMENTS
Payments shall be applied in the following order: (1)
assessment; (2) restitution; (3) fine principal; (4) cost of
prosecution; (5) interest; (6) penalties.
Payment of the total fine and other criminal
monetary penalties shall be due as follows:
A
B_
D_
in full immediately; or
$200.00 immediately, balance due (in accordance
with C,D, or E); or
not later than a
in installments to commence ____ days after the
date of this judgment. In the event the entire
amount of criminal monetary penalties imposed is
not paid prior to the commencement of supervision,
the U.S. probation officer shall pursue collection of
the amount due, and shall request the court to
establish a payment schedule if appropriate; or
a payment of $3,500.00 shall be due three (3)
months after the date of imposition of sentence. A
payment of $3,500.00 shall be due six (6) months
after the date of imposition of sentence. Finally a
payment of $3,000.00 shall be due twelve (12)
months after the date of imposition of sentence.
B-17
The National Fine Center will credit the defendant for all payments
previously made toward any criminal monetary penalties imposed.
Special instruction regarding the payment of criminal
monetary penalties:
The defendant shall pay the cost of prosecution.
The defendant shall forfeit the defendant’s interest
in the following property to the United States:
Unless the court has expressly ordered otherwise in
the special instructions above, if this judgment imposes a
period of imprisonment payment of criminal monetary
penalties shall be due during the period of imprisonment.
All criminal monetary penalty payments are to be made to ~
the United States Courts National Fine Center,
Administrative Office of the United States courts,
Washington, DC 20544, except those payments made
through the Bureau of Piisons’ Inmate Financial
Responsibility Program,. If the National Fine Center is not
operating in this district, all criminal monetary penalty
payments are to be made as directed by the court, the
probation officer, or the United States attorney.
B-18
PN RT ett
Ix
STATEMENT OF REASONS
The court adopts the factual finding and guideline
application in the presentence report.
OR
The court adopts the factual findings and guideline
application in the presentence report except:
Guideline Range Determined by tie Court:
Total Offense Level: 12_
Criminal History Category: I
Imprisonment Range: _10 to _16 months
Supervised Release Range: 2. to 3 years
Fine Range: $_3,000.00 to $30,000.00
Fine waived or below the guideline
range because of inability to pay.
Total Amount of Restitution: $ -0-
_ Restitution is not ordered because the
complication and prolongation of the
sentencing process resulting from the
fashioning of a restitution order
outweighs the need to _ provide
restitution to any victims, pursuant to
18 U.S.C. §3663(d).
For offenses that require the total
amount of loss to be stated, pursuant
to Chapters 109A, 110, 110A, and
B-19
weg aS
113A of Title 18, restitution is not
ordered because the economic
circumstance of the defendant do not
allow for the payment of any amount
of a restitution order, and do not
allow for the payment of any or
some portion of a restitution order in
the foreseeable future under any
reasonable schedule of payments.
Partial restitution is ordered for the
following reasons:
The sentence is within the guideline range, that
Ix
range does not exceed 24 months, and the court
finds no reason to depart from the sentence called
for by application of the guidelines.
OR L
The sentence is within the guideline range, that
range exceeds 24 months, and the sentence is
imposed for the following reasons:
OR
The sentence departs from the guideline range
rs upon motion of the government, as a result
of defendant’s substantial assistance, the
Court departs to a level ___.
for the following reasons:
APPENDIX B
UNITED STATES COURT OF APPEALS
SOUTHERN DISTRICT OF OHIO
MEMORANDUM OPINION AND ORDER
Filed October 17, 1996
Pages B-21 thru B-26
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Southern Dist.
UNITED STATES OF AMERICA,
tae f Ohi
Plaintiff |_rirea 10/17/96 |
y. Case No. CR-96-97(3)
FRANK STAVROFF,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Frank
Stavroff’s (“Stavroff’) motion in limine, motion for a
judgement of acquittal, and the Court’s own motion to
clarify the record. As the Court announced at trial, the
Court DENIES both of the defendant’s motions.
I. Background
In this case, the Government charged Stavroff with
conspiring to defraud the United States and with filing false
tax returns. At trial, the following matters arose.
II. Motion in Limine
Stavroff filed a motion in limine at trial. The court
DENIED Stavroff's motion during the trial. The Court
now states for the record the basis for its decision in fuller
detail.
Stavroff seeks to suppress two calendars seized from
the business offices of Gables Lounge during a raid by
B-21
Internal Revenue Service agents. In his motion in limine,
Stavroff argues that the statements in the calendars are
inadmissible hearsay, not coconspirator’s statements, and
that they should be excluded from evidence. See Fed. R.
Evid. Rule 801(D)(2)(E). The government contends that
the calendars are a daily record of the actual gross receipts
of the lounge. The government’s theory of admissibility, as
expressed at trial, is that these records come within the
“business records” exception to the hearsay rule. Fed. R.
Evid. Rule 803(6). The Court agrees with the government.
Even if Stavroff is correct that the calendars are not
coconspirator’s statements, and they fit the definition of
hearsay, the calendars are admissible if they fall within an
exception to the hearsay rule. See Fed. R. Evid. Rule 801
and Rule 803. One exception to the hearsay rule is for
“records of regularly conducted activity” or “business
records.” Fed. R. Evid. Rule 803(6). The Sixth Circuit has
defined the proper foundation for a business record as
follows:
(F]or a business record to be admissible under Rule
803(6), Federal Rules of Evidence, the record must
satisfy four requirements: (1) it must have been
made in the course of a regularly conducted business
activity; (2) it must have been kept in the regular
course of that business; (3) the regular practice of
that business must have been to have made the
memorandum: and (4) the memorandum must have
B-22
been made by a person with knowledge of the
transaction or from information transmitted by a
person with knowledge.
Redken Laboratories Inc. v. Levin, 843 F.2d 226, 229 (6th
Cir. 1988).
The testimony at trial established that the seized
calendars are regularly kept business records within the
scope of Federal Rule of Evidence 803(6). The calendars
were identified by qualified witnesses -- namely, Lee Mayle
and Dave Van Meter, the managers of the nightclub, who
were the persons who maintained the records contained in
the calendars. Mayle and Van Meter were both available
for cross—examination. The managers had knowledge of
the nightclub’s business receipts because they personall)
added them. The managers also, as a regular practice,
wrote the amount of total receipts into the calendar each
day. The testimony further established -- and the entries
into the calendar confirm -- that the records were
maintained in a consistent form and with a consistent
purpose. Finally, and most importantly, the calendars are
likely to be reliable because they were the only record of
the actual gross receipts of the nightclub; the owners of the
nightclub had to rely on them if they wanted to know the
income of their business. The calendars, though perhaps
unorthodox in form, are admissible as regularly kept
business records. See United States v. McPartlin, 595 F.2d
1321 (7th Cir. 1979).
III. Motion for Judgement of Acquittal
At the close of the government’s evidence, Stavroff
moved for a Judgement of Acquittal pursuant to Rule 29(a)
of the Federal Rules of Criminal Procedure. The Court
reserved its decision on Stavroff's motion. Fed. R. Crim.
P. Rule 29(b). The Court now DENIES Stavroff’s motion.
In a criminal case, a court shall enter a judgment of
acquittal of one or more offenses charged in the indictment
“if the evidence is insufficient to sustain a conviction of
such offense or offenses.” Fed. R. Crim. P. Rule 29(a). In
making its determination, the Court must view the evidence
presented in a light most favorable to the government. The
government’s evidence is insufficient only if it fails to
support one or more of the elements of the offense charged.
United States v. Adamo, 742 F.2d 927, 934—35 (6th Cir.
198). After listening to the evidence, the Court is
convinced that the government presented both documentary
and testimonial evidence supporting each element of the
offenses charged.
With respect to the conspiracy charge, the
government offered the testimony of Steve Dosky, among
others, supported by substantial documentary evidence that
tended to show (1) that there was an agreement between
Stavroff and his business partners to defraud the
government by underreporting both income and employees
of the nightclubs they owned, (2) that Stavroff knew of the
agreement’s illegal purpose and willingly joined in the
B-24
agreement to further that purpose, and (3) that members of
conspiracy performed overt acts in furtherance of the
conspiracy.
With respect to the charges that Stavroff filed false
tax returns, the main evidence the government introduced
(1) Stavroff’s signed tax returns for the relevant years; (2)
the testimony of Mr. Jim Wiggins, a bookkeeper who
interviewed Stavroff for his tax information; and (3), the
testimony of an expert. This evidence tended to show (1)
that Stavroff had knowledge of his duty to pay taxes, (2)
that Stavroff underreported his income on the tax returns in
question, and (3) that Stavroff had knowledge that the
income reported on his personal tax returns was false.
Therefore, the government presented sufficient
evidence to support a conviction of the offenses charged in
the indictment. Upon consideration and being duly advised,
the Court DENIES Stavroff's motion for a judgment of
acquittal.
IV. The Indictment
The Court now moves to clarify the record. Two of
the three defendants in this case entered into plea
agreements before trial. Thereafter, for the sole purpose of
instructing the jury, to avoid unfair prejudice or confusion
and with no objections from either party, the Court
renumbered the Counts in the jury instructions and on the
jury verdict form as follows: Count Five of the indictment
was renumbered as Count Three, and Count Eight of the
B-25
indictment was renumbered to Count Four. The Counts of
the indictment that were directed only at defendant
Stavroff’s codefendants were not submitted to the jury; in
addition, the names of Stavroff's codefendants were
redacted from Count One.
After instruction on the four remaining counts, the
jury returned a guilty verdict on Counts One, Two and the
renumbered Counts Three and Four -- which were the
original Counts Five and Eight in the Indictment. Thus, it
should be clear that Stavroff was found guilty of Counts
One. Two, Five and Eight of the original indictment.
IT IS SO ORDERED.
/s/ Joseph P. Kinneary
UNITED STATES DISTRICT JUDGE
B-26
APPENDIX B
UNITED STATES COURT OF APPEALS
SOUTHERN DISTRICT OF OHIO
ORDER
Filed June 4, 1997
Pages B-27 thru B-27
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Criminal Actien 2:96-CR-97
VS. Judge Kinneary
Magistrate Judge King
FRANK STAVROFF, '
Defendant. Southern Dist.
of Ohio
ORDER Filed 6/4/97
In an Order entered June 3, 1997, the United States
Court of Appeals for the Sixth Circuit granted defendant
Stavroff's motion for release on bail pending appeal
“subject to such reasonable terms and conditions as the
district court may fix in its discretion." Order No. 97-3126
(June 3, 1997).
Defendant Frank Stavroff is ORDERED
RELEASED, pending appeal, on the terms and conditions
previously imposed, i.e., upon his promise to appear at all
proceedings as required and to surrender for service of any
sentence imposed as directed. Moreover, the Court notes
that defendant Stavroff’s passport remains in the custody or
the Office of the Clerk of this Court.
The Bureau of Prisons shall forthwith release
defendant Stavroff pursuant to this order.
/s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
B-27
APPENDIX C
STATUES AND RULES
Pages C-1 thru C-12
18 U.S.C. § 371. Conspiracy to Commit Offense
or to Defraud United States.
If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined under
this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the
object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
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26 U.S.C. § 7206. Fraud and False Statements.
Any person who--
(1) Declaration under penalties of perjury.
Willfully makes and subscribes any return,
statement, or other document, which contains or is
verified by a written declaration that it is made
under the penalties of perjury, and which he does
not believe to be true and correct as to every
material matter; or
(2) Aid or assistance. Willfully aids or assists in,
or procures, counsels, or advises the preparation or
presentation under, or in connection with any matter
arising under, the internal revenue laws, of a return,
affidavit, claim, or other document, which is
fraudulent or is false as to any material matter,
whether or not such falsity or fraud is with the
knowledge or consent of the person authorized or
required to present such return, affidavit, claim, or
document; or
(3) Fraudulent bonds, permits, and entries.
Simulates or falsely or fraudulently executes or
signs any bond, permit, entry, or other document
required by the provisions of the internal revenue
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laws, or by any regulation made in pursuance
thereof, or procures the same to be falsely or
fraudulently executed, or advises, aids in, or
connives at such execution thereof; or
(4) Removal or concealment with intent to
defraud. Removes, deposits, or conceals, or is
concerned in removing, depositing, or concealing,
any goods or commodities for or in respect whereof
any tax is or shall be imposed, or any property upon
which levy is authorized by section 6331, with
intent to evade or defeat the assessment or collection
of any tax imposed by this title; or
(5) Compromises and closing agreements. In
connection with any compromise under section
7122, or offer of such compromise, or in connection
with any closing agreement under section 7121, or
offer to enter into any such agreement, willfully--
(A) Concealment of property. Conceals
from any officer or employee of the United
States any property belonging to the estate of
a taxpayer or other person liable in respect
of the tax, or
(B) Withholding, falsifying, and destroying
records. Receives, withholds, destroys,
mutilates, or falsifies any book, document, or
record, or makes any false statement, relating
to the estate or financial condition of the
taxpayer or other person liable in respect of
the tax:
shall be guilty of a felony and, upon conviction thereof,
shall be fined not more than $ 100,000 ($ 500,000 in the
case of a corporation), or imprisoned not more than 3 years,
or both, together with the costs of prosecution.
Fed. Evid. R. 608. Evidence of Character and
Conduct of Witness
(a) Opinion and reputation evidence of character.
The credibility of a witness may be attacked or
supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness
or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the
witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific
instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility, other than conviction of crime as
provided in rule 609, may not be proved by
extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination
of the witness (1) concerning the witness’ character
for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of
another witness as to which character the witness
being cross-examined has testified. The giving of
testimony, whether by an accused or by any other
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witness, does not operate as a waiver of the
accused’s or the witness’ privilege against
self-incrimination when examined with respect to
matters which relate only to credibility.
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Notes of Advisory Committee. Fed. Evid. R. 608.
Subdivision (a). In Rule 404(a) the general position
is taken that character evidence is not admissible for the
purpose of proving that the person acted in conformity
therewith, subject, however, to several exceptions, one of
which is character evidence of a witness as bearing upon his
credibility. The present rule develops that exception.
In accordance with the bulk of judicial authority, the
inquiry is strictly limited to character for veracity, rather
than allowing evidence as to character generally. The result
is to sharpen relevancy, to reduce surprise, waste of time,
and confusion, and to make the lot of the witness somewhat
less unattractive. McCormick Section 44. The use of
opinion and reputation evidence as means of proving the
character of witnesses is consistent with Rule 405(a). While
the modern practice has purported to exclude opinion
witnesses who testify to reputation seem in fact often to be
giving their opinions, disguised somewhat misleadingly as
reputation. See McCormick Section 44. And even under the
modern practice, a common relaxation has allowed inquiry
as to whether the witnesses would believe the principal
witness under oath. United States v. Walker, 313 F.2d 236
(6th Cir. 1963), and cases cited therein; McCormick @ 44,
pp. 94-95, n. 3.
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Character evidence in support of credibility is
admissible under the rule only after the witness’ character
has first been attacked, as has been the case at common
law. Maguire, Weinstein, et al., Cases on Evidence 295 (Sth
ed. 1965); McCormick Section 49, p. 105; 4 Wigmore
Section 1104. The enormous needless consumption of time
which a contrary practice would entail justifies the
limitation. Opinion or reputation that the witness is
untruthful specifically qualifies as an attack under the rule,
and evidence or misconduct, including conviction of crime,
and of corruption also fall within this category. Evidence of
bias or interest does not. McCormick Section 49; 4
Wigmore Sections 1106, 1107. Whether evidence in the
form of contradiction is an attack upon the character of the
witness must depend on the circumstances. McCormick
Section 49. Cf. Wigmore Sections 1108, 1109.
As to the use of specific instances on direct by an
opinion witness, see the Advisory Committee’s Note to
Rule 405, supra.
Subdivision (b). In conformity with Rule 405,
which forecloses use of evidence of specific incidents as
proof in chief of character unless character is an issue in the
case, the present rule generally bars evidence of specific
instances of conduct of a witness for the purpose of
attacking or supporting his credibility. There are, however,
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two exceptions: (1) specific instances are provable when
they have been the subject of criminal conviction, and (2)
specific instances may be inquired into on
cross-examination of the principal witness or of a witness
giving an opinion of his character for truthfulness.
(1) Conviction of crime as a technique of
impeachment is treated in detail in Rule 609, and here is
merely recognized as an exception to the general rule
excluding evidence of specific incidents for impeachment
purposes.
(2) Particular instances of conduct, though not the
subject of criminal conviction, may be inquired into on
cross-examination of the principal witness himself or of a
witness who testifies concerning his character for
truthfulness. Effective cross-examination demands that some
allowance be made for going into matters of this kind, but
the possibilities of abuse are substantial. Consequently
safeguards are erected in the form of specific requirements
that the instances inquired into be probative of truthfulness
or its opposite and not remote in time. Also, the overriding
protection of Rule 403 requires that probative value not be
outweighed by danger of unfair prejudice, confusion of
issues, or misleading the jury, and that of Rule 611 bars
harassment and undue embarrassment.
The final sentence constitutes a rejection of the
doctrine of such cases as People v. Sorge, 301 N.Y. 198, 93
N.E.2d 637 (1950), that any past criminal act relevant to
credibility may be inquired into on cross-examination, in
apparent disregard of the privilege against
self-incrimination. While it is clear that an ordinary witness
cannot make a partial disclosure of incriminating matter and
then invoke the privilege on cross-examination, no tenable
contention can be made that merely by testifying he waives
his right to foreclose inquiry on cross-examination into
criminal activities for the purpose of attacking his
credibility. So to hold would reduce the privilege to a
nullity. While it is true that an accused, unlike an ordinary
witness, has an option whether to testify, if the option can
be exercised only at the price of opening up inquiry as to
any and all criminal acts committed during his lifetime, the
right to testify could scarcely be said to possess much
vitality. In Griffin v. California, 380 U.S. 609, 85 S.Ct.
1229. 14 L.Ed.2d 106 (1965), the Court held that allowing
comment on the election of an accused not to testify
exacted a constitutionally impermissible price, and so here.
While no specific provision in terms confers constitutional
status on the right of an accused to take the stand in his
own defense, the existence of the right is so completely
recognized that a denial of it or substantial infringement
upon it would surely be of due process dimensions. See
Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d
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783 (1961); McCormick Section 131; 8 Wigmore Section
2276 (McNaughton Rev. 1961). In any event, wholly aside
from constitutional considerations, the provision represents
a sound policy.
Notes of Committee on the Judiciary, House
Report No. 93-650. Rule 608(a) as submitted by the Court
permitted attack to be made upon the character for
truthfulness or untruthfulness of a witness either by
reputation or opinion testimony. For the same reasons
underlying its decision to eliminate the admissibility of
opinion testimony in Rule 405(a), the Committee amended
Rule 608(a) to delete the reference to opinion testimony.
The second sentence of Rule 608(b) as submitted by
the Court permitted specific instances of misconduct of a
witness to be inquired into on cross-examination for the
purpose of attacking his credibility, if probative of
truthfulness or untruthfulness, "and not remote in time”.
Such cross-examination could be of the witness himself or
of another witness who testifies as to “his” character for
truthfulness or untruthfulness.
The Committee amended the Rule to emphasize the
discretionary power of the court in permitting such
testimony and deleted the reference to remoteness in time
as being unnecessary and confusing (remoteness from time
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of trial or remoteness from the incident involved?). As
recast, the Committee amendment also makes clear the
antecedent of "his" in the original Court proposal.
Notes of Conference Committee, House Report
No. 93-1597. The Senate amendment adds the words
"opinion or" to conform the first sentence of the rule with
the remainder of the rule.
The Conference adopts the Senate amendment.
Notes of Advisory Committee on 1987
amendments. The amendments are technical. No
substantive change is intended.
Notes of Advisory Committee on 1988
amendments. The amendment is technical. No substantive
change is intended.
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APPENDIX D
CONSTITUTIONAL PROVISION
Pages D-1 thru D-1
U.S. CONST. amend VI
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his de.ense.
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