Petition — Morrill v. United States

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a

TABLE OF CONTENTS

OPINION BELOW oe © ©

JURISDICTION “—

QUESTIONS PRESENTED .

CONSTITUTIONAL PROVISIONS

INVOLVED a a

STATEMENT OF THE CASE a a

REASONS FOR GRANTING

THE WRIT : 2 « @&.-*

CONCLUSION ° 6 e

APPENDIX A - OPINION OF

COURT OF APPEALS ° e .

APPENDIX B - ORDER OF COURT

OF APPEALS DENYING REHEARING

APPENDIX C - ORDER OF DISTRICT

COURT DENYING JUDGMENT NOT-

WITHSTANDING THE VERDICT

AND MOTION FOR NEW TRIAL

DATED AUGUST 6, 1974... .-

Page

26

AUTHORITIES CITED

Page

Alford v. U.S., 282

U.S. 687 (1930) oeeoewe es va on

Beaudine v. United States,

368 F.2d 417 (5th Cir., 1966) Aas 32

Davis v. Alaska, 415 U.S.

308 (1974) ° does to Be

Farkas v. United States,

2 F.2d 644 (6th Cir., 1924) . 7s 2a

Furlong v. United States,

10 F.2d 492 (8th Cir., 1926) , 13

Harris v. United States,

371 F.2d 365 (9th Cir., 1967) 12, 13

Kotteakos v. United States,

326 0.8. 730 (1946) . «sees 12, 13

The Ottawa, 3 Wall. 268 (1865) te ba

Philadelphia & R. Ty Co. v.

Stimpson, 14 Pet. 448 (1840) . 8. 3&3

Pointer v. Texas, 380 U.S.

400 (1965) eee ss 7, 13

United States v. Amabile,

395 F.2d 47 (7th Cir., 1968) . 13

United States v. Clancy,

276 F.2d 617 (7th Cir., 1960) 17

United States v. Hogan,

232 F.2d 905 (3rd Cir., 1956) 13

United States v. Thayer,

209 F.2d 534 (7th Cir., 1954) 16, 17

Wheeler v. United States,

351 F.2d 946 (lst Cir., 1965) 13

1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1974

TRICF EUGENE MORRILL, PETITIONER

-vs-

UNITED STATES OF AMERICA, RES PONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment herein of the

United States Court of Appeals for the

Seventh Circuit entered in the above-

entitled case on March 3, 1975, petition

for rehearing denied on March 24, 1975.

OPINION BELOW

The opinion of the Court of Appeals is

unpublished. It affirmed a judgment of

conviction of petitioner for theft from

an interstate shipper in violation of

18 U.S.c. 8659 (Count I) and receiving

and concealing property exceeding a

value of five thousand dollars ($5000.00)

which was in interstate transit in viola-

tion of 18 U.S.c. $2315 (Count II).

Petitioner was tried in the District

Court by a jury and there is no

Opinion of that Court.

2

JURSIDICTION

The judgment of the United States

Court of Appeals was entered on March 3,

1975, petition for rehearing denied on

March 24, 1975. Jurisdiction of this

ourt is involved under 28 U.S.C.

1254 (1).

QUESTIONS PRESENTED

I

Was it error for the Court below to

affirm the District Court's sustaining

of a Government objection directed at

Petitioner's questions to an alleged

accomplice of the Petitioner regarding

the difference in penalties between

the felony the accomplice was originally

charged with and the misdemeanor sub-

sequently pleaded guilty to by the

accomplice in exchange for testimony

against the Petitioner?

II

Was this derogation of Petitioner's

right of confrontation of his accusers

pursuant to the Sixth Amendment?

3

Iit

Was it further error for the Court below

to affirm the District Court's decision even

though the entire subject of a “deal” was

brought up by the government on direct

examination?

IV

Was the Court below in further error in its

order in that this order conflicts not only with

other Circuits but with this Court as well?

V

Was the Court below in error by affirming

the District Court's denial of Petitioner's

Motion for Judament of Acquital as well as

the Motion for a New Trial?

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT VI

"In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted

with the witnessess against him."

STATEMENT OF THE CASE

The defendant was charged in a two count

affidavit with violation of Title 18 U.S.C.

Secs. 659 and 2315 --possession of chattels

of a value in excess of one hundred dollars

($100.00), and receiving television sets of

a value of more than five thousand dollars

($5,000.00). Trial by jury was commenced

on May 2, 1974, and was concluded on May 3,

4

1974. The jury returned a verdict of

guilty as to each count. On May 10,

1974, defendant filed his "Motion for

Judgment of Acquittal Notwithstanding

the Verdict, and in the Alternative,

for a New Trial", which was denied

on August 6, 1974, the court entered

judgment and imposed a sentence of

seven (7) years imprisonment as to

count one and a fine in the sum of

two thousand dollars ($2,000.00),

and withheld judgment and placed the

defendant on probation for a period

of three (3) years as to count two

with the period of probation to

commence at the termination of the

imprisonment imposed under count one.

Thereafter, on August 29, 1974, the

defendant filed his Notice of Appeal

from the Judgment.

The events giving use to this

Petition occurred during the trial

of the Petitioner, the government's

chief witness, Anthony Sedita was

charged with the same violations of

18U.S.C. as Petitioner, on facts

arising out of the same occurance,

i.e. Sedita was an accomplice.

Prior to his testimony Sedita made

a "deal" with the Government that

he would testify against Petitioner

if the charges were reduced to a

misdemeanor, which they were. The

penalty for the felony originally

charged was ten (10) years, that for

the misdemeanor one (1) year. On

redirect the Government brought

up the subject of the "deal". On recross

the Government objected to a question

posed by Petitioner's Counsel asking

Sedita to recite the difference be-

tween the penalty for the felony and

the one for the misdemeanor. The

Government's objection was sustained

by the District Court. An offer to

prove relevance was made by Petitioner's

Counsel, but was denied by the District

Court.

The defendant produced two (2) eye-

witnesses, one being the wife of Sedita,

who was present on the night the facts

giving rise to the charges against

Petitioner and Sedita arose, the other

a nephew of Sedita, who was also present.

Both testified that Petitioner was not

one of the men at Sedita's house on the

on the night in question. Further, Sedita

testified that on the evening in question,

a white Marcus Rental truck arrived at his

home and one of the three men in the truck

began to unload television sets. Sedita

testified that Petitioner was one of those

men.

An employee of Marcus Rental Trucks

testified that Petitioner rented an

18 foot van truck two days before the

night in question, he further testified

the truck had a white cab and a red box.

Another employee of Marcus Rental Company

testified that Marcus Rental Company had

six trucks fitting the description of the

truck rented by Petitioner, two (2) having

a white cab and a red box, four (4) having

a red cab and é white or silver box.

every defendant. The Ottawa 3 Wall.

268, 271; Alford v. U.S. 282 U.S. 687, 691;

Pointer v. Texas 380 U.S. 400, 405. The

Sixth (6th) Amendment provides for confron-

tation of every witness by the accused.

Included in the Sixth (6th) Amendment is

the right to vigorously cross-examine those

who would testify as to the criminality of

the defendant. Alford v. U.S., supra.;

Davis v. Alaska 415 U.S. 308; Farkas v.

U.S. 2 F.2d 644 (6th Cir.)’. This includes

those witnesses to whom money has been paid,

or leniency offered by the Government in

exchange for the witness's testimony. These

factors go directly to the credibility of

the witness. The jury, in order to evaluate

and weigh the credibility of the witness in

every possible light, must be aware of every

facet of information prompting the witness

to so testify in arriving at a correct ver-

dict. Central to this question of credibility

is the difference in penalty between the

felony originally charced and that of the

misdemeanor to which the government's key

witness subsequently pleaded guilty in ex-

change for his testimony against the defen-

dant. The promise of leniency is subject

to cross-examination in order to vividly

portray the state of the witness's mind

and the motive for his testimony. Alford

v. U.S., supra.; Farkas v. U.S., supra.

REASONS FOR GRANTING WRIT

I

Conflicts between the ‘

Circuits and Failure to

Follow binding Precedents

The right to cross-examine is basic to

Exposure of the witness's motivation is

not only proper, but important to the

Constitutionally protected right of cross-

examination. Davis v. Alaska, supra.

Our long history of presumption of

innocence reguires that the defendant be

able to question the credibility of a wit-

ness against him, and it becomes all the

more vital when the witness is a paid in-

former or, as in the instant case, when

the charge against the witness originally

arose from the same facts which are alleged

to be the basis for the charge against the

defendant, i.e., when the witness is an

accomplice and that witness's testimony is

crucial to the Government's case, Harris

v. U.S. 371 F.2d 265 (9th Cir.).

In the instant case the Government's

chief witness was charged with the same

felony as the Petitioner. The witness,

however, managed to arrange a "deal" with

the Government whereby he would testify

against the Petitioner in exchange for

pleading guilty to a misdemeanor. Not

only does the Petitioner have an absolute

right to question this witness's credibility,

but the entire question of a "deal" arose as

a result of redirect examination by the

Government. Since the Government saw fit

to bring this agreement into the open, it

was the right of the defendant on cross-

examination to go into every aspect of the

"deal", including the difference in penalties

between the felony which was originally

charged and the misdemeanor subsequently

pleaded guilty to by the witness. Phila-

delphia & R. Ty Co. v. Stimpson, 14 Pet. 448.

By affirming the District Court's decision

regarding the sustaining of the Government's

objection to defense counsel's questions

about the penalties involved, the Court

below ignored decisions of this Court and

clear decisions of other Circuits which are

binding precedent. The questions and res-

ponses to the questions by the Government

and the District Court are as follows:

On redirect examination, the United

States Attorney asked:

"In reference to the agreement

which you and I reached, lowering

your indictment to a misdemeanor,

why did you make that agreement?

Why did you want to make that

agreement?" (Record, p. 129;

emphasis supplied).

On recross examination by Petitioner's

counsel:

"Q In your deal, was it explained

to you what the sentence was for

a felony and what the sentence

is for a misdemeanor?

A Yes, it was.

Q. So you did talk about that. And

what is the difference between the

two?

MR. GRADY: Your Honor, I ob-

ject to this. The difference

between the two sentences I

don't believe is material to

the issues.

THE COURT: No. And it wasn't

gone into.

MR. GRADY: And it wasn't gone

into, you're right--

THE COURT: I'm going to sus-

tain your objection on that.

MR. GRADY: (Continuing) --on

redirect examination.

THE COURT: It's not relevant

evidence, anyway.

MR. ENSLEN: May I approach

the bench.

THE COURT: You may.

(Discussion between Court and

counsel at the bench, outside

the hearing of the jury, as

follows: )

THE COURT: The basic reason

for my ruling was that that

subject was not gone into on

redirect examination. Now,

that's the basic reason for

my ruling.

MR. ENSLEN: I submit to the

Court that it was gone into

when he said, “Why did we make

this agreement?" That opens

up the entire thing. I objected

to that and I was overruled.

-10-

MR. GRADY: I believe he an-

swered that question as to

why he made it.

MR. VAN BOKKELEN: Your

Honor, one additional rea-

son, this brings up the

penalty.

THE COURT: Yes. I'm going

to exclude it on the grounds

that it's a discussion of

penalty that's got no place

before the jury under any

circumstances.

MR. ENSLEN: I would offer to

prove, your Honor, that the

promise of a lesser sentence

is the influencing factor in

this witness' mind to making

the deal, and that would pro-

bably be an inference that the

jury can draw.

THE COURT: Well, you've made

that point. I'm just not going

to let you get into the amount

of penalty in the case.

MR. ENSLEN: Yes."

(R. 138, L. 8-137, L. 12)

Clearly, the questions should have been per-

mitted.

Further, not only is the witness's cre-

dibility subject to attack, but any motives

he might have for so testifying are quite

vital to his decision to testify. Central

to this entire issue of credibility in the

instant case is the difference in penal-

ties between a felony and a misdemeanor.

Kotteakos v. U.S., 328 U.S. 750, 765;

Beuvadine v. U.S., 368 F.2d 417, 423-

424 (5th Cir.). At issue in the instant

case is a motive far more important to the

witness than money -- years of his life,

which can never be recouped. If a paid

informer, who is merely taking money in

exchange for testimony can be vigorously

cross-examined as to motive, Harris v.

U.S., Supra., then surely one who is trad-

ing nine years of incarceration should be

as closely examined!

The jury is entitled to know how many

years the defendant traded, just as it

would be entitled to know the amount of

money paid to an informer. Davis v. Alaska,

supra. This goes straight to the heart of

his motive and, hence, his credibility. It

is not a sufficient protection of the Pe-

titioner's rights guaranteed by the Con-

stitution that the witness in the instant

case merely state to the jury his aware-

ness of the difference between the penalties

for a felony and a misdemeanor. The average

juror is not a lawyer and the words "felony"

and "misdemeanor" are virtually meaningless

to him. Placed in the context of ten years

versus one year, the motive of the witness

would become quite vivid for the jury, and,

in so doing, the jury has a true measure

with which to evaluate the witness's motive

and thus, his credibility. The result is a

fair and equitable verdict, not only to the

oi De

defendant, but to the judicial system as

well. Little is gained by the State when

an individual is convicted because of juris-

prudential "short-cuts" or limitation of

fundamental rights as in the instant case.

The order of the Court below is in

conflict, not only with the decisions of

other circuits, Wheeler v. U.S. 351 F.2d

946 (lst Cir.), Furlong v. U.S. 10 F.2d 492,

494 (8th Cir.), U.S. v. Hogan, 232 F.2d

905 (3rd Cir.), Farkas, supra.; Harris,

supra.; Beaudine, supra.; and in one in-

stance its own; U.S. v. Amabile, 395 F.2d

47, 50 (Swygert, J.) dissenting, but with

the decisions of the Court; The Ottawa,

supra.; Pointer v. Texas, supra.; Alford,

Supra.; Davis v. Alaska, supra.; Phila-

delphia & R. Ty Co. v. Stimpson, supra.;

Kotteakos, supra. and with the District

Court's instruction number 25 in the in-

stant case which is as follows:

"You as jurors, are the sole judge

of the credibility of the witnesses

and the weight their testimony de-

serves. You should carefully

scrutinize all the testimony given,

the circumstances under which each

witness has testified, and every

matter in evidence which tends to

show whether a witness is worthy of

belief. Consider each witness's

intelligence, motive and state of

mind, and demeanor and manner while

On the stand. Consider the witness's

ability to observe the matters as to

o1 3<

which he has testified, and whether

he impresses you as having an accur-

ate recollection of these matters.

Consider also any relation each wit-

ness may bear to either side of the

case; the manner in which each wit-

ness might be affected by the ver-

dict; and the extent to which, if

at all, each witness is either

Supported or contradicted by other

evidence in the case ...

"On the basis of these considerations,

and your experience and relations with

mankind, you should give the testimony

of each witness such weight as you

think it deserves." Instruction 25.

(Emphasis supplied).

Constitutional jurisprudence requires that

this Court establish the parameters for cross-

examination of a witness when that witness's

credibility is questionable as in the instant

case, resulting from his connection in the

same fact situation giving rise to the charges

against the Petitioner. To do otherwise is to

severely limit the Petitioner's right guaran-

teed not only by the Sixth Amendment, but by

the "due process" clause of the Fifth as well.

It is, therefore, the contention of the

Petitioner that he was denied fundamental

Constitutional rights by the Court below

in its order sustaining the District Court's

decision to prohibit Petitioner from going

into the question of the difference in penal-

ties between the felony originally charged

against the Government's witness, and the

= a

misdemeanor to which a guilty plea was en-

tered in exchange for testimony against the

Petitioner. This decision severly limited

Petitioner's right to cross-examine and put

before the jury the most damning aspect of

the question of credibility of this witness,

thereby denying him a basic right not only

guaranteed by decisions of this Court, but

by the Fifth and Sixth Amendments to the

Constitution. Furthermore, the Seventh

Circuit is the only Circuit which restricts

cross-examination in this manner, and is,

therefore, not only in conflict with all

of the other Circuits, but with the decisions

of this Court, thus demanding clarification

by this Court.

II

A study of the record reveals that the

evidence used to convict Petitioner was

nebulous at best. The testimony of an

alleged accomplice who was offered a "deal"

was all that was introduced by the govern-

ment which in any way was incriminating to

the defendant, and this without Petitioner

being permitted to fully cross-examine the

witness regarding his motive.

Petitioner brought to the stand the wife

of the alleged accomplice who was present on

the crucial night in question and who could

not identify the Petitioner, yet she was

present when the 46 television sets which

were the subject to the charges were deli-

vered to the Government witness's house!

Further, the Government proceeded to show

that Petitioner rented a truck on the night

in question, but there is conflict in testi-

mony regarding the truck actually rented by

the Petitioner and the truck seen at the

Government witness's home on the night in

question. The discrepancy was not clari-

fied by the Government. Further, another

witness testified that he saw the men at

the Government witness's home on the night

in question and the Petitioner was not one

of them. Thus, of the three witnesses called

whose testimony referred to who was actually

present at the Government witness's home on

the night in question, the only one to posi-

tively state that Petitioner was present was

the one who stood to gain most by lying, i.e.,

the Government's chief witness, and his

credibility was not delved into fully be-

cause of the objection regarding his moti-

vation. Thus, the Petitioner was convicted

On circumstantial evidence of the most

reckless kind and his conviction should

not be allowed to stand.

The Seventh Circuit has held that in

attempting to set aside a judgment of con-

viction based upon the denial of a Motion

for Judgment of Acquittal only one inquiry

should be made; is there substantial evi-

dence of probative value viewed in the

light most favorable to the government

which the jury could find the defendant

guilty beyond a reasonable doubt. U.S.

v. Thayer, 209 F.2d 534 (7th Cir.).

Clearly, the record indicates that there

is more than a reasonable doubt as to Peti-

tioner's guilt, yet the Court below affirmed

the District Court's decision to deny a

Motion for Judgment of Acquittal even in

light of Thayer, supra.

The ruling of the District Court on the

Motion for New Trial is subject to review

for abuse of judicial discretion. U.S. v.

Clancy, 276 F.2d 617 (7th Cir.).

In light of the testimony and the rul-

ings of the District Court the Petitioner

contends that it was an abuse of judicial

discretion on the part of the District Court

to deny Petitioner's Motion for a New Trial,

and further, the Court below was in error

in affirming the District Court's denial

thereof.

CONCLUSION

For the reasons aforesaid, it is res-

pectfully prayed that a writ of certiorari

be granted to review the judgment of the

United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

LOWELL E. ENSLEN

Council for Petitioner

53 Muenich Court

Hammond, Indiana 46320

(219) 931-1700

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

ARGUED January 9, 1975

March 3 , 19 75

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. PHILIP W. TONE, Circuit Judge

Hon. JOSEPH SAM PERRY, Senior District

Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

NO. 74-1716 vs.

TRICE EUGENE MORRILL,

Defendant-Appellant.

Appeal from the

United States

District Court

for the Northern

District of

Indiana, Hammond

Division.

No. H CR 74-23

ALLEN SHARP, Judge.

ORDER

In a two-count indictment returned Feb-

ruary 27, 1974, Trice Eugene Morrill was

changed with theft of 46 General Electric

portable 10-inch color television sets from

an interstate shipment, in violation of 18

U.S.C. § 659 (Count I), and with receiving

and concealing stolen property of the value

of $5,000 or more, viz., the aforesaid tele-

vision sets, which were moving as, were a

part of, and constituted interstate com-

merce, in violation of 18 U.S.C. § 2315

(Count II). Morrill pleaded not guilty

to both counts. After a two-day trial,

* Senior District Judge Joseph Sam Perry of

the Northern District of Illinois is

sitting by designation.

-18-

eS

a jury returned a verdict of guilty on both

counts. Thereafter Morrill filed a Motion

for Judgment of Acquittal notwithstanding

the Verdict, and in the Alternative, for a

New Trial. On August 6, 1974 the District

Court denied the motion. On August 29, 1974,

the District Court entered a Judgment of

Conviction as charged in the indictment.

Morrill appeals from the order of the

District Court entered August 6, 1974, where-

in the court denied Morrill's motion for

judgment of acquittal notwithstanding the

verdict and in the alternative for a new

trial, and from the District Court's judg-

ment of conviction entered August 29, 1974.

Morrill contends: (1) the District Court

improperly limited Morrill's right to cross~

examine Anthony Sedita, an identifying

Government witness, as to Sedita's interest,

bias and motives when the court prevented

Morrill's counsel from questioning Sedita

as to the difference between the penalty

for a felony and the penalty for a mis-

demeanor, where Sedita had been indicted

under the same charges as those under which

defendant Morrill was indicted, and had, one

day before the commencement of Morrill's

trial, entered into a Stipulation of Plea

Agreement under the terms of which Sedita's

indictment charging a felony violation was

reduced to a misdemeanor; and (2) the Dis-

trict Court erred in denying Morrill's

motion for judgment of acquittal notwith-

standing the verdict and in the alternative

for a new trial.

First we shall address ourselves to the

question whether or not the District Court

committed reversible error in sustaining

the Government's objections to defense coun-

sel's questioning Sedita as to the differ-

ence between the penalty for a felony and

the penalty for a misdemeanor. We have

carefully reviewed the record and we find

that Sedita's motives for testifying, and

the terms of his plea agreement, were clearly

brought out by the testimony in the record.

For example, Sedita was asked on redirect

examination why he wanted to make the plea

agreement lowering his indictment to a mis-

demeanor. He replied, "The misdemeanor

charge is a much less charge than a felony."

(Tr. 129). Further, Sedita testified on

recross-examination that the Government had

explained to him what the sentence for a

felony was, and what the sentence was for

a misdemeanor. (Tr. 135). We agree with

the Government that Sedita's testimony had

made his motives for testifying abundantly

clear to the jury, and that a recitation by

Sedita of the difference in penalty between

a felony and a misdemeanor would not have

added to Sedita's disclosure of his motives

for testifying.

Sedita also made it clear, both on re-

direct and on recross-examination, that the

terms of the plea agreement did not require

him to identify Morrill. (Tr. 130, 131,

133, 134).

Next we turn to the question whether or

not the District Court erred in denying

Morrill's motion for judgment of acquittal

notwithstanding the verdict and in the al-

ternative for a new trial. Appellant con-

tends that the verdict was not supported by

the evidence and was contrary to the weight

of the evidence. We must disagree. First,

Sedita both on direct and on cross-examina-

tion positively identified Morrill as the

person who delivered the 46 television sets

to Sedita's house. (Tr. 100, 106). Second,

several days after the television sets were

delivered to his house, Sedita selected a

photograph of Morrill from an array of photo-

graphs of seven different persons as the

photograph of the man Sedita thought had

delivered the television sets. Third, two

days after the sets had been delivered,

Sedita was requested to describe the man

who made delivery, and he furnished a des-

Ccription which closely fit Morrill. Fourth,

the Government's case against Morrill was

buttressed by the evidence, albeit circum-

Stantial, of the restaurant receipt found

in Morrill's residence, on which receipt

there had been written television modei

numbers which coincided not only with a

portion of the model numbers of the sets

stolen from the railroad years, but also

with the size, description and number of

each type of set in the shipment. Finally,

additional circumstantial evidence against

Morrill was adduced in the form of the per-

sonal telephone number book containing the

mame and number of James Lentini, who,

according to Sedita's testimony, had arranged

for Sedita to take delivery of the television

sets.

From the foregoing it is cleer to this

Court that there was substantial evidence

to support the verdict, and that the ver-

dict must be sustained. See Glasser v.

United States, 315 U.S. 60, 80 (1942),

where the Court held that the verdict of

a jury must be sustained if there is sub-

stantial evidence, viewed in a light most

favorable to the Government, to support

the verdict.

Appellant contends, however, that

Sedita's identification of appellant

was contradicted by the testimony of

defense witness Lafe Mynes, who testi-

fied that he had seen the faces of the

three men who were in the truck which had

transported the television sets to Sedita's

house, and that none of the three men was

Morrill. Appellant contends also that the

credibility of Sedita's identification of

the appellant was further eroded by the

testimony of Sedita's wife, Vera. Mrs.

Vera Sedita, who had been called as a

defense witness, testified on direct

examination that she was present when

the television sets were delivered to her

home on January 30, 1974; that she saw the

man who delivered the sets; and that she

was in the front room in an “upset" con-

dition. Mrs. Sedita was requested to look

at appellant, who then stood up in open

court. Mrs. Sedita testified thereupon

that she "really couldn't say for sure"

whether or not appellant was in her home

on January 30, 1974. Mrs. Sedita concluded

her testimony on direct examination by saying

that she did not think that the appellant

was the man whom she saw. On cross-exami-

nation, Mrs. Sedita testified that she was

upset at the time the sets were delivered

because she had not ever wanted her husband

to take the sets; that she could not remember

if appellant was the man who delivered the

sets; that "it doesn't look like him"; that

she was “not sure" whether or not it was

appellant; and that she really did not ever

get a good look at the man who delivered the

sets because she was in the front room "all

shook up" and didn't know what she was doing.

As to appellant's contentions regarding

the testimony of Lafe Mynes and Vera Sedita,

we need only direct attention to the well-

settled rule that on an appeal from a judg-

ment of conviction based on a guilty ver-

dict, the reviewing court should not under-

take to weigh the evidence or determine the

credibility of the witnesses, but must sus-

tain the judgment if there is-substantial

evidence, taking the view most favorable t-

the Government. Glasser v. United States,

Supra, at 77, 80. As stated hereinbefore,

there was sufficient evidence before the

jury to support its verdict.

As the appellant himself pointed out, the

disposition of a motion for a new trial rests

within the sound discretion of the trial

judge. We must emphasize that the trial

judge's ruling on the motion is subject to

review only in the event that he has abused

this judicial discretion. United States v.

Empire Baking Co., 174 F.2d 16, 20 (7th Cir.

1949), cert. denied, 337 U.S. 959 (1949).

We find no such abuse of discretion here.

For all of the foregoing reasons, the

Order of the District Court denying defen-

dant Morrill's Motion for Judgment of

Acquittal notwithstanding the Verdict

and in the Alternative for a New Trial,

and the District Court's Judgment of

Conviction, are each

AFFIRMED.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

March 24 , 19 75

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. PHILIP W. TONE, Circuit Judge

Hon. JOSEPH SAM PERRY, Sr. District Judge

UNITED STATES OF AMERICA, Appeal from the

United States

District Court

for the Northern

District of

Indiana, Hammond

Divsn.

Plaintiff-Appellee,

NO. 74-1716 vs.

TRICE EUGENE MORRILL,

h

eee eee ee eee

Defendant-Appellant. (H CR 74 23)

On consideration of the petition for re-

hearing filed in the above-entitled cause,

IT IS ORDERED that the petition for re-

hearing in the above-entitled appeal be,

and the same is hereby, DENIED.

@25-

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STA"'ES OF AMERICA

Plaintiff

TRICE EUGENE MORRILL

Defendant

ee ee ee ee ee ee ee

- ORDER

The Court now considers the written Motion

for Continuance of Sentencing filed by the

defendant, Trice Eugene Morrill, by his coun-

sel on July 26, 1974.

At the explicit request of the defendant

the disposition of this case is now continued

from its original setting on August 9, 1974

at 9:30 o'clock A.M. The case is not set

for disposition at the next established time

for dispositions, namely, August 23, 1974,

at 9:30 o'clock A.M.

The Court now takes up for consideration

the Motion for Judgment of Acquittal Notwith-

standing the Verdict and in the Alternative

for a New Trial filed by the defendant on

May 10, 1974. Pursuant to the order of this

Court entered on June 3, 1974, the United

States of America filed its reply thereon

on June 24, 1974. The defendant filed its

reply to the Government's response on July

2, 1974.

-26-

The undersigned Judge of this Court pre-

sided at all stages of the proceedings in

this case, including the trial, and is

thoroughly familiar with the record and the

evidence. This Court does not deem it

necessary to hear further oral argument in

regard to the defendant's motion. There-

fore, that part of the defendant's motion

filed on July 26, 1974 requesting oral

argument is hereby DENIED.

The Court has carefully considered the

pleadings and briefs filed by both the

defendant and the Government as well as the

evidence at the trial and finds that the

Motion for Judgment of Acquittal Notwith-

standing the Verdict and in the Alternative

for a New Trial should be and hereby is

DENIED.

Enter August 6, 1974.

/s/ Allen Sharp

JUDGE, UNITED STATES

DISTRICT COURT.

@27e