# Petition — Morrill v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 825

## Text

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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unpublished.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0352%3A1. Public record. Not legal advice.