U.S. v. Mayer

• Decision Date: 20 July 1977
• Docket Number: No. 76-1858,76-1858
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sol MAYER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 245

556 F.2d 245

UNITED STATES of America, Plaintiff-Appellee, v. Sol MAYER, Defendant-Appellant.

No. 76-1858.

United States Court of Appeals, Fifth Circuit.

July 20, 1977.

Thomas M. Haas, Chris N. Galanos, Mobile, Ala., for defendant-appellant.

Charles S. White-Spunner, U.S. Atty., William R. Fayre, Jr., E. T. Rolison, Jr., Asst. U.S. Attys., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before WISDOM, GEE and FAY, Circuit Judges.

WISDOM, Circuit Judge:

The appellant, Mayer, appeals his jury conviction of 18 counts of violating 18 U.S.C. § 1001, ¹ two counts of violating 18 U.S.C. § 641, ² and one count of violating 18 U.S.C. § 371, ³ all stemming from his role in aiding, abetting, and conspiring in the filing of false statements with the Veterans Administration. Because we find that the district court unduly restricted Mayer's cross-examination of two of the prosecution's key witnesses, and consequently abridged his sixth amendment right to confront the witnesses against him, we reverse Mayer's conviction and remand the case to the district court for a new trial.

I.

Mayer's problems began when the Mobile Business College, a school founded in 1970 by Joan Thomas, her foster son Bruce Capps, and John Firth, approached Mayer's company, the Gulf South Financial Corporation, for a loan in January, 1971. Mobile Business College relied heavily on the tuition and fees paid by the Veterans Administration (VA) for the veterans enrolled in the school for its financial well-being. The VA requires that veterans receiving benefits must attend a specified percentage of classes. Further, for a school to be certified by the VA, a minimum of fifteen percent of the school's enrollment must be comprised of tuition paying non-veterans. Because Mobile Business College and its students were experiencing difficulty in meeting these two requirements, Thomas, Capps, and Firth instituted two fraudulent practices in order to insure the flow of VA funds to the school. They submitted false monthly certificates of attendance for enrolled veterans who were not meeting the monthly attendance requirement imposed by the VA, and they created false files to reflect the enrollment of non-veteran students who did not exist. Before extending the loan to Mobile Business College, Mayer and his associates at Gulf South Financial Corporation were allegedly informed by those running the school of the falsification practices being utilized, apparently for the purpose of demonstrating the school's ability to repay the loan.

In March, 1973, Mayer and his business partner, Siegel, purchased the two-thirds interest of Thomas and Capps in the school and also 13 percent of Firth's one-third interest in the school. Firth continued to employ the record falsification procedures developed before Mayer and Siegel purchased the school. On February 1, 1974, Mayer and Siegel sold their interest in the school to Firth and Bob Long. Firth and Long continued to operate the school, and continued to defraud the VA, until August, 1974, when the VA closed the school.

On the basis of Mobile Business College's less than frank relationship with the VA, the school's founders Thomas, Capps, and Firth, were charged in a 44-count indictment, and Mayer, Siegel, and a third business partner Lyner were charged in a 21-count indictment, with violating 18 U.S.C. §§ 371, 641, and 1001. Thomas, Capps, and Firth each pleaded guilty to one count in their indictment and had the remaining 43 counts against them dismissed when their pleas were accepted by the court. All three had agreed to aid the prosecution in its case against Mayer, Siegel, and Lyner, and to testify against them in court. They kept their bargain. Neither Thomas, Capps, nor Firth had been sentenced before testifying against Mayer and his co-defendants. Largely on the basis of the testimony given by these three witnesses, which was crucial in establishing both the knowledge and the complaisance of Mayer and his business partners in the fraud being practiced by Mobile Business College on the VA, Mayer, Siegel, and Lyner were convicted of all 21 counts against them. Mayer alone appeals, raising several claims of error. Because reversal is warranted by the district court's error in failing to allow Mayer and his co-defendants sufficient leeway in cross-examining the prosecution's chief witnesses against them, which was compounded by the court's seeming removal of the issue of the credibility of these witnesses from the jury, we find it unnecessary to reach Mayer's other assertions of error.

II.

The importance of the testimony given by Thomas, Capps, and Firth to the prosecution's case made it imperative for the defense to challenge their credibility. Mayer and his co-defendants attempted to do this by demonstrating that Thomas, Capps, and Firth were motivated to cooperate with the government by the hope and expectation of prosecutorial and judicial leniency in return for their incriminating testimony. The district court, however, did not allow the defendants to pursue adequately this avenue for impeaching the prosecution's chief witnesses against them.

As the following exchange between the court and defense counsel demonstrates, although the district judge was willing to permit the defense to cross-examine Thomas, Capps, and Firth about the fact that they each pleaded guilty to one count of a 44-count indictment, the judge improperly precluded inquiry as to why these witnesses entered guilty pleas and agreed to testify against Mayer and his co-defendants.

Mr. Haas: (Mayer's attorney): Judge, let me ask you this. I am not clear on it. Would you give us a definitive instruction before I get to that area of it, about how we are supposed to handle her plea.

In other words, my position is that we can go into the whole plea bargaining situation in order to show

The Court: That is clearly against the rule.

Mr. Haas: I don't agree with that.

The Court: You do not agree, other than you can go into the fact that she pled guilty to one count and the reason why the others were taken out of it has absolutely nothing to do with it.

Mr. Haas: Can we go into the fact that, when she pled guilty, the Government dropped the other charges?

The Court: No, sir, that is not a point for cross examination.

Mr. Haas: Can I respectfully reserve an exception to that ruling?

The Court: Yes.

Mr. Gaston (Siegel's attorney): We would like to reserve an exception to that ruling, also.

The Court: All right.

Mr. Butler (Lyner's attorney): Is Your Honor saying, and I would like to make an extreme example suppose Joan Thomas stated on cross examination the reason she entered her guilty plea.

The Court: You can't even ask her the reason she entered a guilty plea. That fact that she entered a guilty plea is an admission of the liability and the Court says that is as far as you can go.

Mr. Butler: Your Honor, if the Court please, the point I am trying to make is to show her motive to testify. Again, as an extreme example, suppose she says that the United States Attorney told her that if she would testify against these defendants, so that they would get convicted, and make real sure her testimony was very incriminating, that he would see to it that the judge gave her probation.

The Court: Then, I would instruct the jury that that is a bald face promise that nobody in the world can make.

Mr. Butler: Judge, I realize that. Somewhere, in between, lies the truth that woman didn't walk in this Court pleading to one count thinking I am going to get twenty years. ⁴

The district court apparently believed that a witness' prior plea of guilty could be used as a prior conviction to impeach the witness on the basis of her bad character, ⁵ but could not be used to show the witness' improper motivation in testifying for the prosecution. The district court misapprehended the law.

A defendant's right to cross-examine fully the witnesses against him is one of constitutional dimensions, secured to federal defendants under the confrontation clause of the sixth amendment. Alford v. United States, 1931, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; United States v. Morris, 5 Cir. 1973, 485 F.2d 1385, 1386-87. State defendants have the right under the fourteenth amendment's due process clause. Pointer v. Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. Moreover, "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination". Davis v. Alaska, 1974, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 354.

"(C)ross-examination of a witness in matters pertinent to his credibility ought to be given the largest possible scope". United States v. Partin, 5 Cir. 1974, 493 F.2d 750, 763, quoting McConnell v. United States, 5 Cir. 1968, 393 F.2d 404, 406. This is especially true where a prosecution witness has had prior dealings with the prosecution or with other law enforcement officials, so that the possibility exists that his testimony was motivated by a desire to please the prosecution in exchange for the prosecutor's actions in having some or all of the charges against the witness dropped, United States v. Onori, 5 Cir. 1976, 535 F.2d 938, securing immunity against prosecution for the witness, United States v. Dickens, 8 Cir. 1969, 417 F.2d 958, or attempting to assure that the witness receives lenient treatment in sentencing, Beaudine v. United States, 5 Cir. 1966, 368 F.2d 417. In commenting upon the wide latitude to be afforded a defendant in cross-examining an accomplice about the disposition of the counts against the accomplice other than the one to which he had pleaded guilty a situation analogous to the case before us the Second Circuit observed:

"(I)t was relevant for the defense to develop any facts bearing upon (the witness') possible motives to falsify his testimony. All the facts...