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UNITED STATES v. KLEIN

July 27, 1979

United States of America
v.
Allen Klein, Defendant.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

I. Introduction

 Defendant was indicted on three counts of tax evasion for the years 1970, 1971, and 1972, See 26 U.S.C. § 7201, and three counts of filing false tax returns for the same years. See 26 U.S.C. § 7206(1). *fn1"

 After trial, the jury returned a verdict of guilty on the false filing count for the year 1970, and of not guilty on the other five counts.

 The case is now before me on defendant's motion for judgment of acquittal n. o. v. or, in the alternative, for a new trial. Defendant has also applied, on the basis of his Brady claim, See infra, for an evidentiary hearing.

 II. Conclusion

 For the reasons that follow, I deny the motion and the application for a hearing.

 III. Discussion

 Defendant has stated various grounds for his motion, only four of which are considered herein. *fn2" These grounds are (A) that the court erred in denying defendant's pretrial motion to dismiss count 4, which motion was based on the allegation that count 4 was a multiplicitous restatement, as a lesser included offense, of count 1; (B) that the court erred in failing to charge the jury, as requested by defendant, that Peter Bennett, the chief Government witness, had a pecuniary motivation to falsify his testimony; (C) that the court erred in precluding defendant from adducing evidence of an alleged character trait of Joel Silver, an associate of defendant; and (D) that the Government violated its obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to produce to the defense allegedly exculpatory material regarding a Government agent's interview of the entertainer Bobby Vinton. I shall consider these grounds Seriatim.

 A. Multiplicity

 Defendant argues that the court erred in allowing count 4, on which defendant was convicted, to go to the jury because count 4 was multiplicitous of count 1 and because defendant had timely, if unsuccessfully, moved to have count 4 stricken from the indictment.

 The main authority for this argument is United States v. Harary, 457 F.2d 471 (2d Cir. 1972). There the court of appeals held that it was reversible error for the trial court "to submit a lesser charge to the jury . . . (when) no "disputed factual element' which distinguishes the offenses is present And, in addition, the defendant makes a timely motion or objection at the trial." Id. at 479 (emphasis added). *fn3"

 However, unlike in Harary, supra, defendant herein did not make a timely motion or objection at trial with respect to count 4. Nor did he make any such motion or objection before me prior to trial.

 Indeed, all of defense counsel's conduct before and during the trial before me indicated that defendant agreed that count 4 (and counts 5 and 6) should go to the jury. For example, defense counsel's proposed jury instructions, which I required be submitted before trial, included five proposed instructions that explicitly pertained to counts 4, 5, and 6. See Defendant's Preliminary Requests For Jury Instructions, Requests Nos. 14-19. *fn4" See also Defendant's Supplemental Request For Jury Instructions, Supplementary Request No. 19A (submitted at the close of the evidence). Moreover, during a colloquy prior to the summations, the Government expressly stated its view that there may be a factual element that distinguishes count 4 from count 1 and that, therefore, it would be possible for the jury rationally to return a verdict of guilty on count 4 and not guilty on count 1. Transcript ("Tr.") 5788-91. Although defense counsel termed the Government's attempt to draw the distinction "an academic exercise," Id. 5790, he did not take the opportunity to object to count 4 as multiplicitous. Instead, he expressly asked for particular instructions "in connection with (counts) 4, 5, and 6. . . . " Tr. 5791. See also id. 5792. Finally, I explicitly asked counsel this question: "The one problem I want to raise with you has to do with the elements of Counts 4, 5, and 6. Does either of you have any trouble with those elements?" Tr. 5837. Although defense counsel ...


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