Opposition — Griffith v. United States

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MICHAEL RODAK, JR., CLERK

No. 75-175

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Ou the Supreme Court of the United States

Octoser TERM, 1975

JOHN IKE GRIFFITH, PETITIONER

v.

Unitrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

ROBERT H. BORE,

Soloitor General,

Department of Justice,

Washington, D.C. 20530.

Gu the Supreme Gourt of the United States —

OctoseR TERM, 1975

——_

No. 75-175

JOHN IKE GRIFFITH, PETITIONER

Vv.

Unitep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner claims that the district court erred in

denying his application for relief under 28 U.S.C,

2255 and in not granting him an evidentiary hearing

on his application.

Following a jury trial in the United States District

Court for the Northern District of Alabama, peti-

tioner was convicted of one count of conspiracy to use

the United States mails to defraud, in violation of 18

U.S.C. 371, and five counts of mail fraud, in violation

of 18 U.S.C. 1341. He was sentenced to concurrent

* Petitioner had been a practicing attorney in Alabama. “The

convictions were based on substantia] evidence that [petitioner],

with others, fraudulently and through the use of the mails pro-

(1)

594-118 —75—_1

2

terms of five years’ imprisonment on the first three

counts of the indictment and concurrent terms of

three years’ probation on the other three counts, the

period of probation to begin upon his release from

custody; he was also fined $10,000. The court of ap-

peals affirmed. United States v. Griffith, 453 F. 2d 1207

(C.A. 5), certiorari denied, 406 U.S. 957.

Petitioner then filed a motion to have his sentence

vacated pursuant to 28 U.S.C. 2255. Initially, a United

States Magistrate considered the matter and filed a

report and recommendation, recommending to the dis-

trict court that the relief requested should be denied.’

The district court adopted and approved the report

and recommendation of the Magistrate and denied

relief without an evidentiary hearing (Pet. App. A5).

The court of appeals affirmed (Pet. App. A6-A7).

1. Petitioner contends (Pet. 8-9) that there was an

intentional delay by the government in returning the

indictment, which was not filed until several years

after the government first obtained knowledge of the

fraud.

The indictment was returned by the grand jury on

August 20, 1970. The conspiracy count charged a series

of continuing violations from August 1965 to within

eight days prior to the return of the indictment. The

five substantive counts all related to offenses com-

cured illegal divorces in Alabama for non-residents.” United

States v. Griffith, 453 F. 2d 1207, 1208 (C.A. 5), certiorari denied,

406 U.S. 957. Co-defendant French O. Whitten, Jr., pleaded guilty

prior to trial, while co-defendants Ann Love and Shirley Bowman

entered pleas of nolo contendere.

2 The report and recommendation of the United States Magis-

trate is included as an appendix to this memorandum.

3*

mifted in 1969 or 1970 (App., infra, pp. 15-16). More-

over, all the acts charged were alleged to have occurred

well within the applicable statute of limitations, 18

U.S.C. 3282. Petitioner has not shown any intentional

delay by the government to gain a tactical advantage,

nor has he demonstrated actual prejudice in the con-

duct of his defense caused by the delay. His conten-

tion is therefore without merit. See United States v.

Marion, 404 U.S. 307, 323-326.

2. Petitioner argues (Pet. 18-19) that he received a

harsher punishment than did his co-defendants bhe-

cause he chose to go to trial rather than enter a guilty

plea.

The sentence imposed by a district court is gen-

erally not reviewable if it is within the statutory

limits. Gore v. United States, 357 U.S. 386. Here, the

sentence imposed, five years’ imprisonment, three

years’ probation, and a $10,000 fine was well within

the statutory limits provided by law. The record con-

tains no indication that the trial judge considered

impermissible factors in imposing this concededly law-

ful sentence. Nor is there any support in the record

for petitioner’s speculative contention that the trial

judge increased petitioner’s punishments because he

did not enter a plea of guilty as did his co-defendants.

In the absence of an articulated expression by the trial

court that it considered impermissible factors in arriv-

ing at its disparate sentences between co-defendants,

appellate review is unavailable. See United States v.

Tucker, 404 U.S. 448, 446-447; Williams v. Illinois,

399 U.S. 235, 243; United States v. Bristol, 473 F. 2d

439, 445 (C.A. 5).

4

3. Petitioner alleges (Pet. 21-23) that the testimony

of government witnesses Sue Cook and Shirley Bow-

man, both former secretaries in petitioner’s office,

was ‘‘colored” because they were under indictment or

threat of indictment.

As the district court concluded, however, the fact

that two witnesses who testified were threatened with

or were under indictment is a matter that goes only

to the weight of their testimony (App., infra, p. 17).

The record reflects that both witnesses were available

for cross-examination and impeachment, and Bowman

was extensively examined by counsel for petitioner as

to her status as a defendant.’ In any event, as the

court of appeals originally found, the testimony of at

least thirteen other witnesses provided overwhelming

evidence of petitioner’s guilt. United States v. Griffith,

supra, 453 F. 2d at 1208.

4. Petitioner elaims (Pet. 19-20) that evidence was

admitted at trial that was obtained through illegal

electronic surveillance. However, he offers no facts or

circumstances to support this allegation, nor does he

specify what trial evidence was obtained illegally.

Moreover, petitioner filed a motion before trial

requesting the right to inspect notes, logs and trans-

scriptions of any eleectronie or mail surveillance con-

dueted by the government. The trial court denied

petitioner’s motion, and petitioner chose not to raise

the issue on direct appeal (App., infra, pp. 17-18).

* Petitioner also contends (Pet. 22-23) that Bowman and Cook

may have testified falsely, but he presents no factual support for

this allegation.

5

Therefore the contention may not be made now. See

Kaufman v. United States, 394 U.S. 217, 223 and n. 7.

5. Relying on United States v. Maze, 414 U.S. 395,

petitioner contends (Pet. 24-26) that his use of the

mails in obtaining Alabama divorcees for non-residents

was incidental to such activities and thus did not

constitute a violation of federal law.

Petitioner did not raise this issue on direct appeal.

Moreover, the precise issue was decided by the Fifth

Circuit in United States v. Edwards, 458 F.2d 875,

882-883, certiorari denied sub nom. Huie v. United

States, 409 U.S. 891, a case so identical to petitioner’s

that the district court found it dispositive here (App.,

infra, p. 18). In Edwards, as here, the defendants

claimed that there was no solicitation by mail; that

the fraud occurred during the meetings in their offices ;

and only after the fraud was accomplished were the

mails used incidentally to send the purported divorce

decrees. In holding that such a mailing was in further-

ance of the scheme and not merely incidental thereto,

the court said (458 F.2d at 883):

{Sjending the purported divorce decree was a

final step in the scheme to defraud, necessary to

avoid detection and to prevent the recovery of

money lost by the victims and was thus a ma-

terial part of the fraudulent scheme.

This case is wholly unlike United States v. Maze,

supra, in which this Court held that 18 U.S.C. 1341 did

not proscribe a credit card scheme in which the ac-

cused used a stolen credit card and his fraud consisted

solely of obtaining goods and services by misrepresent-

ing himself as the legitimate holder of the card. The

defendant in Maze did not use the mails himself, nor

did their use by others, though predictable, in any way

further the execution of his fraudulent scheme. The

only use of the mails was by the establishments that

accepted the credit card in payment for services when,

in order to receive payment, they mailed sales slips to

the company which had issued the credit card. The

Court held that such subsequent mailings were not

“for the purpose of executing [the] scheme or artifice ”:

(18 U.S.C. 1341) and therefore were not “sufficiently

closely related to respondent’s scheme to bring his con-

duct within the statute’’ (414 U.S. at 399).

Here, in contrast to Maze, transmission of the

divorce decrees through the mails was an integral part

of the scheme; for without the use of the mails to de-

fraud, petitioner’s scheme could not have been

realized.

6. Petitioner urges that the district court erred in

denying his motion to have United States District

Judge Clarence W. Allgood disqualify himself from

hearing petitioner’s Section 2255 motion for personal

bias.*

The affidavit accompanying petitioner’s recusal

motion simply alleges that Judge Allgood is a member

* Petitioner also filed two other motions which appear to raise

the same bias claim against any United States district judge to

whom his petition might be assigned and who is also a present or

past member of the Birmingham or Alabama Bar Associations.

The district court did not consider these because they were not

verified by affidavit, as required by 28 U.S.C. 144 (App., infra,

p. 12).

7

of the Birmingham and Alabama Bar Associations,

which, petitioner says, were the primary moving forces

behind his prosecution and conviction (Pet. App.

A9-A10). Petitioner has neither alleged nor shown

any specific acts or circumstances to demonstrate that

Judge Allgood had any personal interest in the out-

come of the case or personal enmity toward petitioner.

While membership in an organization such as a bar

association might give rise to a personal interest in

furthering the goals of that organization, membership

alone is not sufficient to show bias. Petitioner has

failed to demonstrate the kind of “personal bias or

prejudice either against him or in favor of any ad-

verse party’’ required by the statute. See 28 U.S.C,

144.

7. Since petitioner’s contentions are conclusively re-

futed by the record and files of the case, the district

court properly * refused to grant a hearing. Sanders v.

United States, 373 U.S. 1.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Rosert H. Bork,

Solicitor General.

OcTOBER 1975.

* Petitioner contends that he was Cenied the effective assistance

of counsel because the trial court denied a continuance motion

when one of his attorneys became ill and was unable to attend the

trial for two and one-half days (Pet. 11-12). He also alleges that

the trial court erred by denying his motion to suppress evidence

seized under an allegedly defective search warrant (Pet. 14-17).

Both contentions were considered by the court of appeals on peti-

tioner’s direct appeal and found to have no merit whatsoever.

United States v. Griffith, supra, 453 F. 2d at 1208.

APPENDIX

United States District Court for the Northern

District of Alabama, Southern Division

No. CA 74-A-636-S

JOHN IKE GRIFFITH

v.

Unitep States oF AMERICA

ORDER

The Court has considered the motion filed by John

Ike Griffith pursuant to 28 U.S.C. § 2255 and the re-

port and recommendation of the United States Magis-

trate. The Magistrate’s recommendation is hereby

ADOPTED and APPROVED.

It is therefore ORDERED that the motion of John

Ike Griffith to vacate and set aside the conviction in

criminal action 70—-282-S be and the same hereby is

DENIED.

The Clerk is directed to furnish Movant, in care of

Box 147, Route 1, Dutton, Alabama and the United

States Attorney, Northern District of Alabama with a

copy of the Magistrate’s report and recommendation

and this Order.

Done, this 7th day of November, 1974.

b |

U.S. District Judge.

(9)

594-113—75—2

10

United States District Court for the Northern

District of Alabama, Southern Division

No. CA 74-A-635-S

JOHN IKE GRIFFITH

v.

UNITED STATES OF AMERICA

EXAMINATION, REPORT AND RECOMMENDATION TO THE

UNITED STATES DISTRICT COURT

Movant was convicted in this Court on April 16,

1971 on one count of violation of Title 18, U.S.C.

§ 371, conspiracy to use the United States mails to

defraud and on five specific counts of violation of

Title 18, U.S.C. § 1341, use of the United States mails

to defraud. He was subsequently sentenced to im-

prisonment for a period of five years and fined $10,000

under Count One of the indictment and was sentenced

to five years imprisonment under each of Counts Two

and Three, said sentences to run concurrently with the

sentence under Count One; three years probation

under each of Counts Four, Five and Six, such three

year periods of probation to be served concurrently

and to begin upon his release from custody. He was

also taxed with the cost in the case amounting to some

$5,226.16. In due course, his appeal was perfected to

the United States Court of Appeals for the Fifth

Circuit which affirmed on January 20, 1972. U.S. vs.

Griffith, 453 F. 2d 1207, 5th Cir. (1972), Cert. den. 92

S. Ct. 2059, 406 U.S. 957. On June 26, 1974, he filed his

motion in this Court pursuant to Title 28, U.S.C.

§ 2255 and included therewith a forty-two page docu-

-

11

ment which he has entitled ‘‘Memorandum of Law in

Support of: Motion to Vacate Sentence. Grant a New

Trial or Discharge Petitioner From Custody Pursuant

to Section 2255, Title 28, U.S.C.” Upon careful seru-

tiny, it is found that this additional document con-

tains certain allegations which Movant apparently

wishes the Court to consider in support of his motion.

Contemporaneously with the above, he has filed three

motions, the thrust of which appear to be that any

United States district judge to whom his motion

might be assigned and who is also a present or past

member of the Birmingham Bar Association or the

Alabama Bar Association, should disqualify himself

from these proceedings on the ground that as a mem-

ber, past or present, of either the Birmingham or the

Alabama Bar Associations, he has such a personal

interest in the outcome of these proceedings as to

make it unfair to the Movant for such judge to sit. The

Magistrate will consider all the above motions and the

memorandum as one integrated request for post-con-

viction relief and will treat them as such herein.

Movant asserts that he has previously filed a motion

‘under Section 2255 in the United States District Court

for the Northern District of Texas, which said motion

was denied. The Magistrate is uninformed of the

grounds alleged in the previous motion. However,

since the statute requires that such a motion be filed

in the court which imposed the sentence, the Magis-

trate will consider that the motion was dismissed

there as having been brought in the wrong district and

not on the merits.

12

On June 28, 1974, Magistrate R. Macey Taylor, en-

tered an Order requiring the Respondent to show

cause why the relief requested by the Movant should

not be granted. The Respondent has filed its answer

and Movant has since filed a traverse. Such response

and traverse will be considered herein.

The means by which a litigant may raise the issue

of a judge’s personal bias either against him or in

favor of an opposing party is provided by statute,

28 United States Code § 144. In substance, the statute

requires that a party believing that the judge sitting

in his case is biased, must file an affidavit stating his

belief and setting forth the facts and reasons which

give rise to such belief and must be accompanied by a

certificate of counsel of record to the effect that such

affidavit is filed in good faith. The Movant herein has

filed three separate motions, all of which in one form

or another, attempt to raise the issue of judicial bias.

Only one of such motions is verified by affidavit, and

thus is the only one which will be treated here. This

motion specifically requests that the Honorable Clar-

ence W. Allgood, United States District Judge, dis-

qualify himself for personal bias. It alleges that Judge

Allgood is a member of the Birmingham Bar Associa-

tion and of the Alabama Bar Association and that

such Bar Associations were the primary moving forces

which led to his prosecution and conviction. The affi-

davit is insufficient on its face in that it alleges

nothing more than that Judge Allgood was a member

of the stated Bar Associations. The Movant in no way

attempts to show, other than by mere conclusion, that

Judge Allgood has any personal interest in the out-

a 2

-_—_—.-*

18

eome of this proceeding. While membership in an

organization, such as a Bar Association, might give

rise to a personal interest of a judge in furthering

the goals of that organization, membership alone is

not sufficient to show such personal interest. Specific

acts or circumstances must be shown which would give

rise to such bias.

Were the Movant able to overcome the rather obvi-

ous deficiencies in his affidavit, his attempt to raise

this issue is subject to an even more devasting defect.

The statute clearly requires that the affidavit be

accompanied by a certificate of the counsel of record

for the party making the affidavit that such affidavit

is filed in good faith. Since the Movant appears here

pro se, he presumably could make the certificate him-

self but he has failed to do so and for that reason,

if for no other, the Magistrate finds that the attempt

of the Movant to raise the issue of judicial bias is

insufficient and it should be denied.

Though Movant has failed to clearly delineate the

issues which he wishes to have considered, a careful

reading of his motion reveals several issues which

the Magistrate will attempt to treat here. They are:

(1) That he was denied effective assistance of counsel

in that the trial court denied his motion for a contin-

uance when one of his trial counsel became ill and

was unable to attend the trial for a period of some

two days. (2) That he was denied due process of law

in that there was an inordinate delay in bringing the

indictment against him, to his prejudice. (3) That the

fruits of illegal searches and seizures were introduced

against him in violation of his Fourth Amendment

14

rights to be free from unreasonable searches and

seizures. (4) That his activities in obtaining Alabama

divorces for non-residents of the State of Alabama

were legal in that he obtained valid divorces for such

non-residents and such divorces being valid, that no

fraud was committed. (5) That he received a harsher

punishment than did his codefendants for no reason

other than that he chose to go to trial rather than to

enter a plea of guilty. (6) That the testimony of two

witnesses was “colored” because they, themselves,

were in danger of prosecution for acts in furtherance

of the scheme or conspiracy charged to this Movant.

(7) That evidence was admitted against him which

was obtained by illega: surveillance or illegal “‘bug-

ging” or illegal electronic devices in violation of law

and in violation of his Fourth Amendment right to

he free from illegal searches and his Fifth Amendment

right against self-incrimination. (8) That use of the

mails in his activities in obtaining Alabama divorces

for non-residents was incidental to such activities and

thus did not constitute a v olation of the law.

As to issues enumerated as (1) and (3) above, it

need only be said that these issues were considered by

the United States Court of Appeals for the Fifth

Circuit and determined against the Movant. U.S. vs.

Griffith, supra.

Movant complains that facts upon which the indict-

ment, prosecution and conviction were based were

known to prosecutors as early as 1965 and that such

porsecutors purposefully delayed the indictment, to

his prejudice. It is enough to say that if such allega-

tions could be sustained, this ground was available to

15

Movant at the trial of his case and on appeal to the

United States Court of Appeals for the Fifth Cireuit.

The record reveals that Movant, acting through coun-

sel, filed a motion to dismiss the indictment on Sep-

tember 28, 1970 wherein, seventeen separate grounds

were cited as a basis for dismissing such indictment

but this ground was not among them. This issue was

not raised on appeal. Section 2255 provides for a col-

lateral attack on a judgment of conviction and is not

a substitute for appeal for alleged errors committed

at or before the trial. Belated suggestions of possible

prejudice in such instances are not favored on col-

lateral attack especially following a full review on

appeal. Eisner vs. U.S., 351 F. 2d 55, 6th Cir. (1965) ;

Houston vs. U.S., 419 F. 2d 30, 5th Cir. (1969).

The indictment upon which Movant was convicted

was returned by the Grand Jury on August 20, 1970.

Count One alleged a conspiracy in violation of 18

U.S.C. § 371 with numerous overt acts in furtherance

of said conspiracy, one of which occurred on August

14, 1970, eight days prior to the indictment. Count

Two of said indictment charged a violation on 3

December 1969, some eight and one-half months prior

to the date of the indictment. Count Three charged a

violation on March 18, 1970, some five months prior

to the indictment. Count Four charged a violation on

the 22nd day of January 1970, some eight months

prior to the indictment. Count Five charged a viola-

tion on 3 July 1969, some fourteen months prior to

the indictment. Count Six charged a violation on

18 July 1970, approximately one month prior to the

indictment. All acts charged in the indictment, and

16

fn each count thereof were alleged to have occurred

on specific dates well within the applicable statute of

limitations, 18 U.S.C. § 3282. Assuming there was a

delay in bringing the indictment, a fact which is de-

monstrably false, such a delay does not amount to a

violation of Movant’s constitutional rights so long as

the applicable statute of limitations period is followed

and no prejudice is shown. U.S. vs. Edwards, 458 F. 2d

875, 5th Cir. (1972); U.S. vs. Marion, 404 U.S. 307,

92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) ; U.S. vs. Ewell,

383 U.S. 116, 86 8. Ct. 773, 15 L. Ed. 2d 627 (1966) ;

U.S. vs. Judice, 457 F. 2d 414, 5th Cir. (1972); U.S.

vs. Grayson, 416 F. 2d 1073, 5th Cir. (1969); Cert.

den., 396 U.S. 1059, 90 S. Ct. 754, 24 L. Ed. 2d 753

(1969) ; Bruce vs. U.S., 351 F. 2d 318, 5th Cir. (1965),

Cert. den., 384 U.S. 921, 86 S. Ct. 1370, 16 L. Ed. 2d

441 (1966).

Movant’s contentions enumerated in issue number

(4) above were extensively treated by the U.S. Court

of Appeals for the Fifth Circuit in U.S. vs. Edwards,

supra, in a case which is so similar in facts as to

be completely applicable to Movant’s contentions here-

in. There, the Fifth Circuit Court of Appeals decided

the issue contrary to the claims of the Movant.

Movant was convicted on all six counts of the indict-

ment on evidence which the Court of Appeals for the

Fifth Cireuit described as ‘‘overwhelming.” Upon

such conviction, he was subject to maximum imprison-

ment totalling thirty years and fines totalling fifteen

thousand dollars. He, in fact, received a prison sen-

tence of five years, three years probation and a fine

of ten thousand dollars. His total punishment was well

WF

within the maximum provided by law. It may be as-

sumed that the trial court considered the nature and

degree of the illegal acts of the Movant as well as his

personal circumstances in imposing sentence and the

fact that his sentence was more severe than the sen-

tence imposed upon a codefendant who entered a plea

of guilty, is no basis for disturbing the action of the

Court at this time.

The fact that two witnesses who testified against the

Movant at his trial were under indictment or threat of

indictment, is a matter which goes to the weight to be

given their testimony by the jury. The record reflects

that both witnesses were available for cross-examina-

tion by counsel for the Movant and that, in faet, wit-

ness Shirley Bowman was questioned as to her status

as a defendant by both defense counsel and eounsel

for the prosecution. It is not now known what, if any,

weight was given to the testimony of these two wit-

nesses by the jury but such testimony is not due to be

stricken now. It might be noted once again that in

affirming, the Court of Appeals noted that the evi-

dence against this Movant was “overwhelming.”

Movant, for the first time, makes the general asser-

tion that evidence was admitted at trial which was ob-

tained through illegal surveillance or illegal “Bug-

ging’’ or illegal electronic devices in violation of

the law. This allegation is a bare conclusion. He

alleges no facts or circumstances which would tend to

support the allegation and in no way informs the

Court of any particular evidence to which he makes

reference. On September 28, 1970, acting by and

through his counsel, Movant filed a motion which was

18 a

entitled “Motion to Produce for Inspection” by which

he asked to inspect and to copy, among other things,

the following:

10. Notes, logs and/or transcriptions of any

and all electronic surveillance conducted by any

officer or agent of the United States during

investigation resulting in the indictment in this.

case, or copies thereof, within the possession,

custody or control of the Government, the exist-

ence of which is known, or by the exercise of

due diligence may become known to the at-

torney for the Government.

11. Any and all logs, notes, memoranda,

copies, photographs of any surreptitious

surveillance of the United States mails in con-

nection with the investigation resulting in the

indictment in this case, within the possession,

custody or control of the Government, the exist-

ence of which is known, or by the exercise of

due diligence, may become known to the at-

torney for the Government.

The question as to the existence or use of surveil-

lance or “bugging’’ or use of electronic devices was

judicially determined during the pretrial proceedings.

If there was error, such error was available to the

Movant on his appeal. He chose not to raise that issue

on appeal and as was said above, a motion under Sec-

tion 2255 is not a substitute for an appeal.

As to Movant’s contention that use of the mails was

incidental to his activities in obtaining Alabama di-

vorees for non-residents of the State of Alabama, that

question was also treated in U.S. vs. Edwards, supra,

and it should suffice to say that the position taken by

the Movant here was not sustained by the U.S. Court

of Appeals for the Fifth Cireuit.

19

Having carefully and thoroughly considered all the

issues raised by the Movant and for the reasons above-

stated, the Magistrate is of the opinion and recom-

mends that the relief requested by the Movant should

be denied.

DatTep, this day of October, 1974.

Epwin L. NELSON,

U.S. Magistrate.

ane

est omy ABE

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U.S. GOVERNMENT PRINTING OFFICE: 1978

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