Petition — Muckenstrum v. United States

| 7 Bupreme Couri, U. S.

FILED

75-391: we61s x6

ail

MICHAEL ROVAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

see

KATHLEEN MAUDE MUCKENSTRUM, GLENDA DALE HODGES,

JAMES MARSHAL REED and JEAN HERTZKA,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

NORMAN S. LONDON

LAWRENCE J. FLEMING

418 Olive Street

St. Louis, Missouri 63102

Attorneys for Petitioners

LL ES A RR

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

aa

INDEX

Page

PNP SP ret PO OC ETC TET TET ETE TE |

PR. Poth eda adhe tarde Cre ed ce eet New iss 2

SD IND sd cndadssandsansedoediveccsees 2

CE cc Keewdu di ddiehe vies ahbcevesdsnenadsons 2

A. Conviction and Sentence ...............0005- 2

he SE BIS 6.56 do's dete coved s coonsdes 3

Reasons for Granting the Writ .............0.000000: 6

I. Further direction is needed to resolve an apparent

conflict in the Federal Circuits and determine under

what circumstances the holding in Giglio v. United

States, 405 U.S. 150 should apply to payments of

money by the Government to its witnesses ........ 6

II. Guidance is needed from this Court in fashioning

an appropriate burden of proof reasonable doubt in-

RE os 6 onncnne mee eases ee saw es 6s 8

RE SOC uce Ci ter ae eee ae eee aan weds 11

I. centéne asinns £60 kAntinnrisekstennsetnes A-1

Table of Cases

Brady v. Maryland, 373 U.S. 83 (1963) .............. 6

Compton v. United States, 305 F.2d 119 (9th Cir. 1962) 9

Dunbar v. United States, 156 U.S. 185, 199 (1895) .... 9

ii

Evans v. Janning, 489 F.2d 470 (8th Cir. 1973) ...... 7

Giglio v. United States, 405 U.S. 150 (1972) .......... 6, 7,8

Miles v. United States, 103 U.S. 304 (1880) .......... 8-9

Napue v. Illinois, 360 U.S. 264, 269 (1959) .......... 6,8

Speiser v. Rondall, 356 U.S. 513, 523, 534 (1958) ...... y

State v. Davis, 482 S.W.2d 486 (Mo. 1972) .......... 10

United States v. Alvero, 470 F.2d 981 (5 Cir. 1972) .... 10

United States v. Atkins, 487 F.2d 257 (8 Cir. 1973) .... 10

United States v. Barrbera, 386 F.2d 333 (2d Cir. 1973) .. 9

United States v. Crisco, 493 F.2d 232 (8th Cir. 1973) .... 9

United States v. Johnson, 487 F.2d 1318, 1325 (5 Cir.

ee an ne tn 7

United States v. Librach, No: 75-1153 (8th Cir. July 30,

I Gi le ae a ae a re el ee ae io cea 7

Statutes Cited

I i ig 2

Title 18 United States Code § 1952 ..........0....... 2

Title 18 United States Code § 2421 .................. 2

Title 18 United States Code § 2422 ............... . 2

Title 18 United States Code § 3651 ................ 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

ne, Gk. Cbadteases

KATHLEEN MAUDE MUCKENSTRUM, GLENDA DALE HODGES,

JAMES MARSHAL REED and JEAN HERTZKA,

‘Petitioners,

vs

* UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

Petitioners pray that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered in this cause on July 3, 1975.

OPINION BELOW

The opinion of the Court of Appeals is, as yet, unpublished,

but is appended hereto as Exhibit A.

JURISDICTION

The judgment of the Court of Appeals was entered in July

3, 1975. On July 30, 1975 this Court entered an order extend-

ing the time to File a Petition for Writ of Certiorari to and in-

cluding September 1, 1975. Jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. May the.Government’s failure to disclose substantial pay-

ments to a Government witness be deemed harmless where there

is substantial evidence to support the conviction?

2. Is it error to instruct a jury that a “reasonable doubt”

must be “substantial rather than speculative”?

STATEMENT

A. Conviction and Sentences

This is an appeal from the judgments, convictions and sen-

tences of the United States District Court for the Southern Dis-

trict of Florida, wherein each of the defendants was convicted of

one count of conspiracy to engage in interstate prostitution ‘ac-

tivities in violation of Title 18 United States Code § 1952 and

one count of using interstate facilities or traveling in interstate

commerce to promote prostitution activities in violation of Title

18 United States Code § 2421, and wherein appellant Reed was

convicted of an additional count of jnducing a woman to engage

in interstate prostitution activities in violation of Title 18 United

States Code § 2422.

—

Appellant Reed was sentenced to three years imprisonment

and a fine of $1,500.00 on each of the three counts of which he

was convicted; the prison terms to be served concurrently.

Appellant Hertzka was sentenced to two years imprisonment

on each of the two counts of which she was convicted; such

sentences to run concurrently.

Appellant Hodges was sentenced to two years imprisonment

on each of the two counts of which she was convicted; such sen-

tences to run concurrently; and she was further granted a split-

sentence treatment under Title 18 United States Code § 3651

such that all but 30 days of her sentence was suspended.

Appellant Muckenstrum was granted a suspended imposition

of sentence and two years probation on each of the two counts

of which she was convicted. |

The United States Court of Appeals for the Fifth Circuit

B. Summary of Record

The indictment herein was couched in four counts: Count I

charged all of the appellants with conspiracy; Count II charged

appellant Reed with inducing Nevada Jean Robertson to en-

gage in interstate prostitution activities; Count III charged ap-

pellants Reed and Hertzka with using interstate telephone com-

munications to facilitate prostitution activities; and Count IV

charged appellants Hodges and Muckenstrum with traveling in

interstate commerce for purposes of prostitution. ,

The principal government witness, Nevada Jean Robert-

son, testified that she had met appellant Reed at a nightclub in

Dyersburg, Tennessee, where he induced her to return with him

to Miami, Florida, with the promise of employment (A. 65-66)

and that shortly after their arrival in Miami, Reed advised her

—

that she would be going to Florence, South Carolina, and pro-

vided her with $125.00 for air fare. (A. 73-74).

Miss Robertson further testified that upon her arrival in

Florence, she was met by Kathleen Muckenstrum and subse-

quently taken to Jean Hertzka’s house. (A. 74-75). She stated

that she first learned of the proposed prostitution activities while

in Florence, and that she worked in Florence as a prostitute for

about seven days, during which time she surrendered her re-

ceipts to Jean Hertzka and James Reed. (A. 78-82).

Another government witness, Earline Edwards, stated that she

had worked at Jean Hertzka’s place in 1970-1971, and had

assumed custody of the money earned by the girls which she

would eventually turn over to Jean Hertzka at the end of the day.

Although Edwards testified that she had never been arrested for

prostitution, it was stipulated that she had, in fact, been con-

victed three times for prostitution.

Additional government witnesses included Meianie Ann Gor-

don, who testified that she had worked and traveled to South

Carolina as a prostitute in the employ of James Reed, together

with appellants Hodges and Muckenstrum (A. 145-148); and Eve

DeBlas, who stated that she had been Reed’s housekeeper and

was aware that Reed lived wit!. both appellant Hodges and appel-

lant Muckenstrum. (A. 183).

The defendants produced no evidence, but objected to various

jury instructions given by the Court, particularly to that in-

struction regarding burden of proof and reasonable doubt. The

jury returned a verdict of guilty as to all appellants on all counts

wherein they were charged.

Subsequently, on September 6, 1974, an evidentiary hearing

was held in defendants’ motion for a new trial. Nevada Jean

Armbeck, who had testified at trial as Nevada Robertson, stated

that she had been pressured into testifying at trial by F.B.I.

—_—

Agents Brunner and Stevens, who threatened her with physical

harm, as well as prosecution. (A. 370, 374, 397). The witness

then recanted her trial testimony and stated that she had not

traveled to Miami at appellant Reed's urging, but had, in fact,

requested of him that she go to Miami to work as his house-

keeper and governess for his children. (A. 371). Mrs. Armbeck

testified that after her arrival in Miami, she was contacted by

Melanie Gordon, who gave her the phone number of Jean

Hertzka in South Carolina, and told her that “she could earn real

good money for a week.” (A. 372). She further testified that

Reed had not given her any money for air fare to South Caro-

lina, and was, in fact, unaware that she was in South Carolina

until after he arrived (A. 373) and that Reed had received none

of the money earned by her while she was working in South

Carolina. |

Nevada Jean Armbeck went on to testify that just prior to her

testimony at trial she had stayed with one, Penny Griggs in

Chicago (A. 375) where she was visited by two U.S. Marshals,

who told her that she had to leave the area, purchased a plane

ticket for her, gave her about $112.00, and sent her to Denver.

(A. 376). In Denver, she was met by another Marshal, who gave

her a $300.00 check for living expenses. Subsequently, she

received additional money from the government in amounts of

$300.00, $268.00, $495.00 and $495.00. (A. 376-377).

After Nevada Armbeck’s testimony at the post-trial hearing,

the government produced, for the first time, a list of money

which indicated that the witness had been paid approximately

$1,000.00 prior to her trial testimony and one or two subse-

quent payments. (A. 413). The trial court, however, denied

petitioners’ motion for a new trial and the appellate court af-

firmed citing “overwhelming credible evidence.”

REASONS FOR GRANTING THE WRIT

1. Further Direction Is Needed to Resolve an Apparent Con-

flict in the Federal Circuits and Determine Under What Cir-

cumstances the Holding in Giglio v. United States, 405 U.S.

150, Should Apply te Payments of Money by the Government

to Its Witnesses.

It was well-established in Brady v. Maryland, 373 U.S. 83

(1963), that suppression by the prosecution of evidence favor-

able to an accused upon request of the defendant violates due

process, irrespective of the good or bad faith of the prosecution.

It is equally well-established that “favorable evidence” may

be either direct evidence or evidence tending to impeach the

credibility of a Government witness.

As this Court stated even prior to Brady, Napue v. Illinois,

360 U.S. 264, 269 (1959):

The jury’s estimate of the truthfulness and reliability of a

given witness may well be determinative of guilt or inno-

cence, and it is upon such subtle factors as the possible

interest in testifying falsely that a defendant's life or lib-

erty may depend.

More recently, in the leading case of Giglio v. United States,

405 U.S. 150 (1972), this Court held that the defendant had

been denied due process where the evidence showed that the

Government failed to disclose an alleged promise of leniency

made to its key witness in return for his testimony. In so hold-

ing, the Court stated:

“Taliento’s credibility as a witness was therefore an im-

portant issue in the case, and evidence of any understand-

ing or agreement as to a future prosecution would be rel-

evant to his credibility and the jury was entitled to know

of it.” Giglio, supra, at 155 (emphasis supplied).

+o

The Court of Appeals for the Fifth Circuit in the recent case

of United States v. Johnson, 487 F.2d 1318, 1325 (5 Cir.

1974), was faced with a similar problem concerning the pros-

ecution’s failure to disclose a promise of leniency made to one

of its witnesses. The Court stated:

“Our guide in this matter is Giglio v. United States, su-

pra, and the series of Supreme Court cases discussed

therein. The rule is that presentation of known false evi-

dence, and non-disclosure of evidence affecting credibility,

are grounds for a re-trial if the deception was material,

that is if it might ‘in any reasonable likelihood have af-

fected the judgment of the jury.’ Giglio, supra, 405 U.S.

at 154 . . .” (emphasis supplied).

See also Judge Webster's very comprehensive treatment of

the Brady rule in Evans v. Janning, 489 F.2d 470 (8th Cir.

1973).

Although the information withheld by the Government in the

instant case concerns matters other than a promise of leniency,

such matters nevertheless may have materially affected the jury's

assessment of the witness’s credibility and the ability of the

defense to adequately prepare for trial.

In fact a similar situation was found to require reversal in

the very recent case of United States v. Librach, No. 75-1153

(8th Cir. July 30, 1975). Reviewing the non-disclosure of

Protective Custody and Government subsidies, the Court of

Appeals for the Eighth Circuit reasoned as follows:

Defendant relies on the familiar rule that Government sup-

pression of favorable evidence material to the defense jus-

tifies a new trial irrespective of the good or bad faith of

the prosecution. Brady v. Maryland, 373 U.S. 83 (1963).

In Giglio v. United States, 405 U.S. 150 (1972), the Su-

preme Court reversed a conviction secured or a witness’s

false denial that the Government promised him leniency

for his testimony. Therein it noted that the particular wit-

ness’s reliability may have been determinative of guilt or

innocence. The Court held that nondisclosure of evidence

affecting the witness's credibility falls within the Brady

rule, provided “the false (or suppressed) testimony could

. in any reasonable likelihood have affected the judg-

ment of the jury . . .” Giglio v. United States, supra, at

154, quoting Napue v. Illinois, 360 U.S. 264, 271 (1959).

Application of these principles to the instant case calls for

a new trial. This is an egregious case of prosecutorial sup-

pression of evidence that was both favorable and material

to the defense. Evans v. Jannings, 489 F.2d 470, 475 (8th

Cir. 1973). The Government’s failure to disclose protec-

uve custody and its substantial payment of almest $10,000

to Robert Fowler obviously could have affected the jury’s

judgment of the witness’s credibility. The circumstances

were such that Fowler’s testimony was the primary basis

for determining Librach’s guilt. The Government's paying

a monthly subsidy to a witness is certainly a fact that should

be disclosed to the trier of the facts since it is relevant to

the witness’s interest in testifying.

Similar situations will undoubtedly arise as the Government

seeks to utilize the subsistence payments provisions of Pub. L.

910452. Consequently, it is important that both prosecution

and defense be provided with guidelines regarding the extent of

disclosure which will be required.

2. Guidance Is Needed From This Court in Fashioning an

Appropriate Burden of Proof Reasonable Doubt Instructiva.

Both trial and appellate courts have been floundering in their

attempts to adequately define and instruct on the burden of proof

and the meaning of reasonable doubt. See e.g.: Miles v. United

-_

as Te

States, 103 U.S. 304 (1880); Dunbar v. United States, 156 U.S.

185, 199 (1895); Speiser v. Rondall, 356 U.S. 513, 523, 534

(1958); Compton v. United States, 305 F.2d 119 (9th Cir.

1962); United States v. Barrbera, 386 F.2d 333 (2d Cir. 1973);

United Siates v. Crisco, 493 F.2d 232 (8th Cir. 1973).

In the instant case, the trial court gave the following explana-

tion of reasonable doubt:

“The burden of proving a defendant guilty beyond a reason-

able doubt rests upon the government. This burden never

shifts throughout the trial. The law does not require a de-

fendant to prove his innocence or to produce any evidence.

He may rely upon evidence brought out on examination of

witnesses for the government. If the government fails to

prove a defendant guilty beyond a reasonable doubt, the

jury must acquit him or her. Now, a reasonable doubt, as

is used in these instructions, means a doubt that is based

on reason and common sense. Such doubt must be sub-

stantial rather than speculative, that is a defendant is never

to be convicted on mere suspicion or conjecture. Such

doubt, however, must be a doubt that is reasonable and one

which arises from the evidence or lack of it. It does not

mean a mere possible doubt or a speculative, imaginary, or

forced doubt, because anything relating to human affairs

is open to some possible or imaginary doubt.” (A. 308-309)

(Emphasis supplied).

Of course, it is well established that the defendant need not

“rely” on any evidence and to say that he may rely on evidence

brought out on cross-examination implies that there must be

some evidence (whether “produced” by the Government or de-

fendant) upon which defendant bases his case.

The misleading and prejudicial effect of these phrases is com-

pounded by the next paragraph of the instruction wherein the

Trial Court states that a reasonable doubt “must be substantial

rather than speculative.” (Emphasis supplied ).

=

In United States v. Atkins, 487 F.2d 257 (8 Cir. 1973), the

Court rejected the equating of reasonable doubt with substantial

doubt stating:

“The objection made on this appeal is that substantial

doubt is not the equivalent of reasonable doubt. We agree.

Proof of guilt beyond a reasonable doubt would seem to

require a greater evidentiary showing by the government

than proof of guilt beyond a substantial doubt. For this

reason, we do not approve of the alternative statement that

reasonable doubt means a substantial doubt.”

The Court of Appeals in Atkins found particularly persuasive

the reasoning of Judge Seiler of the Missouri Supreme Court

when he observed in State v. Davis, 482 S.W. 2d 486 (Mo.

1972) at p. 490:

“Reasonable and substantial are not synonymous, as can

be seen by referring to any of the Standard dictionaries.

The point was well put by counsel in argument recently

where he pointed out that if one had to undergo a serious

operation and were querying the doctor as to the prospects

for a successful outcome, how differently the person would

feel if the doctor told him there was only a reasonable

chance of success as opposed to being there was a sub-

stantial chance of success.”

Similar reasoning is found in United States v. Alvero, 470 F.

2d 981 (5 Cir. 1972) where the appellate Court held that the

phrase “very substantial doubt” overstated the degree of un-

certainty required for reasonable doubt and constituted re-

versible error.

In the instant case the Court of Appeals expressed dissatis-

faction with the trial court’s instruction noting that it “is con-

fusing in that arguably it raises the burden from ‘reasonable

doubt’ to ‘substantial doubt’ and would better be left unsaid.”

However, the Court declined to reverse on this point.

ee | pee

In view of the apparent confusion and conflict of decisions

on this issue it is submitted that standards for an instruction

on reasonable doubt should be set by this Court.

CONCLUSION

For the foregoing reasons a Writ of Certiorari should issue

to review the judgment and opinion of the Court of Appeals.

Respectfully submitted

LONDON & GREENBERG

418 Olive—Suite 404

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

APPENDIX

—_ *

UNITED STATES v. MUCKENSTRUM

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UNITED STATES v. MUCKENSTRUM

against appellants. See Harrington v.

California, 1969, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284. Besides Nevada

Jean Robertson, the government produc-

ed Erlene Edwards, who testified that

she was employed by Hertzka in operat-

ing a house of prostitution in Florence,

South Carolina. Her duties included an-

swering the door, getting the girls up in

the morning and the taking of their re-

ceipts during the day for them. She

identified defendants Hodges and Muck-

enstrum as being prostitutes at the

house.

Melanie Ann Gordon testified that she

travelled from Miami to Florence, South

Carolina along with defendants Muck-

enstrum and Hodges, while in the em-

ploy of and at the instance of defendant

Reed, to work as a prostitute at the

Hertzka house. She testified that Muck-

enstrum and Hodges were also employed

by Reed.

This direct testimony of witnesses was

buttressed by documentary evidence.

An FBI agent testified that a notebook

had been found in Hertzka's possession

at the time of her arrest and that the

name “Jim” appeared in the book next

to a telephone number later shown to be

James Reed's Miami telephone number.

Telephone records were introduced indi-

cating numerous calls between James

Reed’s number in Miami and Hertzka’s

in South Carolina (listed under the alias

Pat Walker).

Nevada Robertson testified that she

was employed by Reed, that he sent her

from Miami to the Hertzka house in

Florence, and that she worked in the

house as a prostitute. Thus her testimo-

ny was largely the same as that of wit-

nesses Edwards and Gordon.

{2} Appellants next urge reversal and

a new trial based on Nevada Jean Rob-

ertson’s recantation of her trial testimo-

ny at a post-trial hearing based upon a

motion for new trial. Robertson did re-

pudiate her grand jury and tria! testimo-

ny. The government countered by pro-

ducing witnesses impeaching Robertson's

recantation. We have closely examined

Robertson's post-tria] testimony and find

it untenable at best. Coupled with the

overwhelming credible evidence against

appellants and the extremely suspect na-

ture of Robertson's recantation, the trial

judge did not err in denying the motion

for a new trial. See United States v.

Johnson, 5 Cir., 1974, 487 F.2d 1318,

1325.

[3] Appellants also urge that a new

trial should have resulted from the fail-

ure of the government to inform defense

counsel of alleged threats and promises

of leniency described by Robertson dur-

ing the post-trial hearing. Federal

agents testified at the hearing that no

threats or promises had been made to

Robertson. There is no merit whatever

in this contention.

[4] Appellants next contend that the

government withheld statements of

government witness Melanie Ann Gor-

don in violation of the Jencks Act (18

U.S.C.A. § 3500). Melanie Ann Gordon

testified for the government at this trial

and also in a subsequent trial giving rise

to the appeal in United States v. Prince,

5 Cir., 1975, —— F.2d ——, this day de-

cided. The government produced an

FBI report in the Prince trial of an in-

terview with Gordon. It was not pro-

duced in this trial and thus the claim of

a Jencks Act violation.

We have examined the FBI report in

issue and find it is not Jencks Act mate-

rial. As brought out at the trial

evidentiary hearing, the FBI

—_

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