Petition — Nicholson v. United States

Sipréme Court, U.S

FILED

| FEB 19 1976

MICHAEL RODAK, JR.,

IN THE

Supreme Court of the United States

i sia 45> l l 2D 1

ROBERT NICHOLSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

STANLEY W. GREENFIELD, Esquirg,

GREENFIELD & MINSKY,

‘Counsel for Petitioner,

412 Carlton House,

Pittsburgh, Pennsylvania 15219,

(412) 281-8801.

aogano w. suauuon, stnion RevausrnTaTive =>

1701 FARKLINE DR., PITTSBURGH, PA. 15227

418-081-7463

INDEX.

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Question Presented ..........4....... CF sate RI de

cpeekd need 6 on baanenetebon seus ceannnetess

Reasons for Granting the Writ......................

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Opinion of the Fifth Circuit Court of Ap-

peals, Filed January 14, 1976..............2.45.

CITATIONS.

CASES.

Costello v. U.S., 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.

Dl cit cacade de Gate le A daaaea eed ba endae eneune

OE W Tis Ge Wee a GF nnn ccnnecacievesess

United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38

i ec eee lee eeu éauaseuabauteues

IN THE

Supreme Court of the United States

canndus eee Term, 19...

ROBERT NICHOLSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Fifth Circuit entered in the above case on January

14, 1976, which affirmed the District Court’s denial of

Petitioner's Motion for a New Trial.

Opinions Below

The District Court for the Eastern District of Louisiana

denied Petitioner’s Motion for New Trial without opinion.

The Fifth Circuit Court of Appeals affirmed by opinion

(Appendix).

2

Jurisdiction

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

Question Presented

Was Petitioner denied due process where his testimony

before the indicting Grand Jury was suppressed by the

trial court as having been given without counsel and no

other evidence was presented to the Grand Jury on which

to indict.

Stalement

Petitioner, Robert Nicholson, was indicted together

with his brother, William Nicholson, represented by

separate counsel, and one James Edward Lawhon, in a

single count indictment charging conspiracy in violation

of 18 U.S.C. 371, to unlawfully transport in interstate

commerce certain Bell Sysiem Telephone Equipment hav-

ing a value in excess of Five Thousand ($5,000.00)

Dollars. Lawhon pleaded guilty to this and other cases in

the Eastern District of Louisiana, testified for the

Government, ard was eventually sentenced to three (3)

years in prison. He related in detail his theft of substan-

tia! quantities of telephone equipment from the Southern

Bell Service Centers in the New Orleans area in excess of

some ninety (90) different occasions and his sale of this

equipment to various legitimate companies and persons

throughout the United States, including Nicho, Inc., an

Ohio corporation, whose principal shareholders were

Petitioner, Robert Nicholson, and William Nicholson

(T.T. V.VII., pp. 33). Nicho, Inc. was also legitimately

3

engaged in the business of buying, selling, and refur-

bishing used telephone equipment which at the time was

an endeavor shared by numerous other companies in a

developing industry.

The Government's case was entirely circumstantial in

that Lawhon, himself, testified that at no time did he tell

the Petitioner that the equipment he was sending was in

fact stolen by him (T.T. V.I., pp. 108). The facts of the

case were substantially undisputed, the defense being that

Petitioner did not know and had no reason to know that

the equipment shipped from Louisiana was in fact stolen.

Pursuant to the standing orders with Lawhon, Nicho, Inc.

accepted and paid for, at current used telephone market

prices, numerous shipments of telephones sent by Lawhon

(T.T. V.1., pp. 40). This equipment was reconditioned to

include in some instances the removal of the designation

“Bell System—Not For Sale” markings, a practice not

uncommon in the industry and one which Nicho, Inc. had

been authorized to do in other unrelated instances as a

normal practice with respect to purchased used equip-

ment. The reconditioned equipment was then sold by

Nicho, Inc. to various purchasers throughout the United

States, including Olson Electronics, a major and national

telephone retailer (T.T. V.1.1., pp. 34).

Petitioner filed a pretrial motion, including a Motion to

Suppress his Grand Jury Testimony. His contention was

that he was subpoenaed the night before he was to appear

before the Grand Jury sitting in New Orleans and then

called by telephone by the Assistant United States At-

torney conducting the investigation and told that he could

come without counsel. Nor was he advised that he was the

subject of the Grand Jury investigation. The Grand Jury

returned an indictment the same day without any other

testimony being presented. None of the witnesses testify-

4

ing for the Government at trial, even on the circumstan-

tial matters, appeared before the Grand Jury. Upon these

facts, the District Court suppressed the Grand Jury

testimony of Petitioner and his brother, William Nichol-

son, but refused to grant Petitioner's Motion to Quash the

Indictment subsequently filed which contended that

without defendant’s testimony there existed no evidence

on which to indict him. After a lengthy jury trial the

Petitioner was convicted and eventually sentenced to two

(2) years in prison, released on his own recognizance, and

the execution of sentence stayed pending the appeal to the

Fifth Circuit Court of Appeals. That Court affirmed the

Judgment by Opinion. This Petition for a Writ of

Certiorari followed.

Reasons for Granting the Writ

Petitioner is of course aware of this Court’s holding in

United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38

L.Ed.2d 561 (1974) that illegally obtained evidence may

be put to the Grand Jury even though suppressed for trial

purposes. Nor is he unaware of this Court’s earlier

holding in Costello v. U.S., 350 U.S. 359, 76 S.Ct. 406, 100

L.Ed. 397, that normally an indictment is not to be

challenged on the adequacy or competency of evidence

before the Grand Jury. The Petitioner nevertheless does

not understand this Court to have yet said that an indict-

ment predicated on no evidence is constitutionally suf-

ficient. Indeed, neither Calandra, supra, nor any other

holding of this Court has seemingly repudiated Mr.

Justice Burton’s concurring opinion in Costello, supra, at

364 that:

“Likewise it seems to me that if it is shown that the

Grand Jury had before it no substantial or rationally

5

persuasive evidence on which to base its indictment,

that indictment should be quashed. To hold a person

to answer such an empty indictment for a capital or

otherwise infamous federal crime robs the Fifth

Amendment of much of its protective value to the

private citizen.”

Where, therefore, there is a contention that no competent

evidence underpins the indictment the trial court must at

. Jeast make some judicial inquiry, in camera or otherwise,

to validate the claim unless it is to be the law that a faci-

ally proper indictment can never be the subject of an in-

quiry even where no evidence has been presented to the

grand jury to support it by whatever minimum standards.

As Leonard Hand observed in Lawn v. U.S., 221 F.2d

668, €77:

“If it appeared that no evidence had been offered that

rationally established the facts, the indictment ought

to be quashed; because then the grand jury would

have in substance abdicated.”

In the case sub judice no evidence was presented to the

grant jury apart from Petitioner’s suppressed statement.

This Court in the interest of due process must set some

minimum definitive standard as to when, if ever, the

grand jury’s action may be judicially reviewed, and reaf-

firm Mr. Justice Burton’s expression that an indictment

can not survive if based on the presentation of no compe-

tent evidence.

Conclusion

For the reasons set forth above, it is respectfully

submitted that this Petition for Writ of Certiorari should

be granted.

Respectfully submitted,

STANLEY W. GREENFIELD,

Stanley W. Greenfield,

Attorney for Petitioner.

6

Certificate of Service

I hereby certify that a copy of the within Petition For A

Writ Of Certiorari was mailed by United States Mail on

February 11, 1976 to Robert H. Bork, Solicitor General of

the United States, Department of Justice, Tenth and Con-

Stitution Avenue, Washington, D.C. 20530.

STANLEY W. GREENFIELD,

Stanley W. Greenfield,

Attorney for Petitioner.

APPENDIX

Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

ROBERT NICHOLSON AND WILLIAM NICHOLSON,

Def endants- Appellants.

No. 74-3724

United States Court of Appeals,

Fifth Circuit.

Jan. 14, 1976

Defendants were convicted, after trial in the United

States District Court for the Eastern District of Louisiana

at New Orleans, Herbert W. Christenberry, J., of con-

spiracy to transport property worth more than $5,000 in

interstate commerce, knowing the property to have been

stolen. Defendants appealed. The Court of Appeals,

Ainsworth, Circuit Judge, held that admission of tes-

timony as to prices paid to a certain company for

telephones was admissible to show knowledge of defen-

dants, who paid only about one-fourth of such price for

stolen telephones, that they were stolen. The Government

had a duty to disclose details of its plea bargaining

agreement with a coindictee who testified, and testimony

produced in making such disclosure, including informa-

tion concerning sales of other telephone equipment, was

8

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

properly received. Even testimony which had been

suppressed for trial purposes was properly before the

grand jury.

Affirmed.

i. Receiving Stolen Goods—8(2), 9(1)

In prosecution for conspiracy to transport stolen

property in interstate commerce, testimony as to prices

paid to certain company for telephones was admissible to

Show knowledge of defendants, who paid only about

one-fourth of such price for stolen telephones, that they

were stolen, weight of such evidence, in view of conten-

tion that such prices paid were not true prices paid

because of intercorporate relationship, was for jury. i8

U.S.C.A. §§ 371, 2314.

2. Criminal Law—422(2)

In prosecution for conspiracy to transport stolen

telephone equipment in interstate commerce, Government

had duty to disclose details of its plea bargaining agree-

ment with coindictee who testified, and testimony

produced in making such disclosure, including informa-

tion about sales of other telephore equipment, was

properly received. 18 U.S.C.A. §§ 371, 2314.

3. Criminal Law—1/1035(9)

Conviction would not be reversed for trial judge's

remarks concerning credibility of witness where judge was

not asked to inquire of jury whether they overheard his

remarks and was not asked to give jury cautionary

instruction.

9

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

4. Criminal Law-—1166.22(4)

In prosecution for conspiracy to transport stolen

property in interstate commerce, trial judge’s remark that

witness was “bookkeeper without books” was not of suf-

ficient consequential prejudice to warrant reversal. 18

U.S.C.A. §§ 371, 2314.

5. Indictment and Information—10.2(2)

Even though testimony was suppressed for trial pur-

poses, it was properly before grand jury.

6. Conspiracy—47(3)

Where conspiracy was proved, only slight evidence was

required to connect particular defendant with it, and

record as a whole amply supported his participation therein.

18 U.S.C.A. § 371.

7. Criminal Law—829(1 5)

Where jury was properly instructed on reasonable

doubt, court was not required to give requested reasonable

hypothesis charge relative to circumstantial evidence.

8. Criminal Law—627.7(3)

Where defendants knew witnesses and could have ex-

amined them before trial and where statements were given

to defense counsel before witnesses testified and in-

formation contained in the statements was not necess* “ily

exculpatory, there was no erroneous failure on the part of

the Government to give particular defendant all ex-

culpatory material as required by judicial decision.

10

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before WISDOM, GEWIN and AINSWORTH, Circuit

Judges.

AINSWORTH, Circuit Judge:

Appellants Robert J. Nicholson and William Nicholson

appeal from their conviction after trial by jury of con-

spiracy to transport property worth more than. $5,000 in

interstate commerce, knowing the property to have been

stolen, in violation of 18 U.S.C. §§ 371 and 2314. We have

carefully examined each of the errors asserted by appel-

lants and find them to be without merit. Accordingly, we

affirm the convictions.

The Government’s evidence was to the effect that

appellants conspired with James Lawhon, a coindictee

who pled guilty and testified for the Government as its

principal witness. Lawhon, who was a former Bell

Telephone Company employee, committed numerous

burglaries of Southern Bell (now South. Central Bell)

properties in the New Orleans area on more than 104 oc-

casions, and stole new and reconditioned telephones

which he sold and shipped to appellants’ company,

Nichco, Inc., in Lexington, Ohio. From September 1970

continuously through December !972 (except for several

months, Lawhon stole and shipped approximately 200

such telephones, a substantial number being new equip-

ment, each week to appellants. Lawhon communicated by

long distance about these transactions with both defen-

dants about once a week, or more than 100 times. Lawhon

used fictitious names and addresses on all of the invoices

ams

~_——

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

and packages shipped to Nichco, but pursuant to tele-

phone arrangements Nichco checks were made payable to

Lawhon and forwarded to his proper address in New Or-

leans. Lawhon was paid in excess of $40,000 by the

Nicholsons over the 2'/2-year period involved. Nichco

then sold the telephones, mostly to Olson Electronics,

Akron, Ohio, for approximately double this amount. FBI

agents observed some of Lawhon’s burglaries and thefts of

the telephones, also appellants each picking up a shipment

of the telephones at the Columbus, Ohio Airport. Pur-

suant to a search warrant, a large number of Bell System

telephones were recovered by the FBI at the Nichco

premises in Lexington, Ohio.

Whenever a shipment of telephones arrived Nichco

employees turned aside from other work and immediately

took them out of the boxes which had “Bell System” and

markings on the side and destroyed the boxes by crushing

and burning them. Identification markings on the tele-

phones, “Bell System Property—Not for Sale,” were

ground and buffed off by Nichco employees under direc-

tion of the Nicholsons. |

Appellants each testified and denied the conspiracy or

any knowledge that the telephones were stolen, though

they admitted they made no inquiries of southern Bell to

determine if the telephones could be sold.

[1] Appellants assert as error the admission of tes-

timony by the Government, over their objection, as to

prices paid by Southern Bell to Western Electric for such

telephones. The purpose of this proof was to show

knowledge of the Nicholsons that they were stolen since

they paid Lawhon for the telephones only about '/s of the

12

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

Western Electric price. Incidentally, when FBI agents

searched Lawhon’s home they found a copy of the South

Central Bell Telephone-Western Electric stock price list

in Lawhon’s desk, and it was received in evidence at the

trial. Appellants contend, however, that the price was not

a true price because of the corporate relationship between

Southern Bell and Western Electric. In our view the

evidence was admissible, and given the corporate rela-

tionship referred to, the weight to be accorded the

evidence was for the jury to determine. The evidence was,

therefore, properly admitted by the trial Court.

[2] Appellants also assert as error the denial of their

motions for mistrial based on questions by the Govern-

ment of defense witnesses as to criminal or improper

conduct by others in association with Robert Nicholson in

other incidents of the sale of telephone equipment. As to

this issue, the trial Court sustained defense objections to

the sale of telephones by Nichco to Bennett and Beams.

Also sustained was the defense’s objection to questions to

Assistant United States Attorney Bailey as to whether a

plea bargain had been made with Lawhon relative to his

testimony in other cases. However, on questions by the

trial judge the Assistant United States Attorney testified

that there were other cases besides the present one. The

Government contends, and we agree, that it had the duty

to disclose the details of its plea bargaining agreement

with Lawhon and that the testimony produced was in

response thereto. We find no error or prejudice under the

circumstances.

[3,4] The next error complained of by appellants is

that the trial judge made remarks concerning the

credibility of the witness, Thomas, in a loud voice that

could have been overheard by the jury. There is no way to

determine on appeal whether this issue is wel! taken since

Swe ree

13

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

nothing was done by defense counsel to preserve this point

for review. The district judge was not asked to inquire of

the jury whether they over-heard his remarks and he was

not asked to give the jury a cautionary instruction. Nor do

we consider the remark of the trial Court that the witness,

Rowlands, was “a bookkeeper without books,” of suf-

ficient consequence or prejudice to warrant reversal. The

district Court later gave a cautionary instruction covering

generally the subject matter of these objections.

[5] Appellants also contend that the district Court

erred in denying the motion to quash the indictment. They

contend that appellants’ testimony alone constituted the

evidentiary basis for the indictment, and that since the

Court suppressed appellants’ testimony before the grand

jury, there was no competent evidence upon which the

grand jury could have relied to support its indictment’.

There is no indication in the record that the indictment

was based solely on the testimony of the Nicholsons. The

Assistant United States Attorney in oral argument on

appeal informed the Court that there was other evidence

presented to the grand jury which was not transcribed and

offered to supplement the record in this regard if required

by us. We do not believe supplementing the record is re-

quired. No attempt was made by appellants to preserve

this point for appeal by proof that the only witnesses who

testified at the grand jury proceeding were the Nichol-

sons. Even so, the contention is without merit since the

' Apparently the motions to suppress on behalf of defendants were

granted because the Assistant United States Attorney telephoned

defendants the night before each was required to appear before the

grand jury at New Orleans and each was told that the inquiry did not

reiate to culpability on his part and in response to inquiry, he would

not need an attorney. Thus the Nicholsons appeared before the grand

jury without consulting or having the benefit of counsel.

14

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

Supreme Court has recently decided that the exclusionary

rule may not be extended to grand jury proceedings. The

Nicholsons’ testimony was, therefore, properly before the

grand jury even though suppressed for trial purposes. See

United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613,

620-621, 38 L.Ed.2d 561 (1974); United States v. Boerner, 5

Cir., 1975, 508 F.2d 1064, 1068. In Costello v. United

States, 350 U.S. 359, 363-364, 76 S.Ct. 406, 409, 100 L.Ed.

397, the Supreme Court said to “establish a rule permit-

ting defendants to challenge indictments on the ground

that they are not supported by adequate or competent

evidence”. . . “would run counter to the whole history of

the grand jury institution. . .”’ That the trial judge

followed the applicable law is shown by his denial of the

motion to quash the indictment, despite his granting of

the motion to suppress the grand jury testimony of Robert

and William Nicholson.

Appellant William Nicholson also contends that there

was error in denial of his motion for judgment of acquit-

tal. He also contends that the Government failed to prove

that the defendant had knowledge that the telephones in-

volved were stolen. There was ample evidence, however,

to connect this appellant with the transaction. FBI Agent

Huddleston testified to an oral statement taken from

William Nicholson that Nichco had been purchasing

telephones from Lawhon for several years. William

Nicholson said that his brother, Robert Nicholson, did

most of the paper work and that he primarily traveled and

sold equipment. He said he picked up a number of cartons

of telephones received from Lawhon at the Columbus

Airport and that they were then ground and buffed and

the words “Beil System—Not for Sale” taken off because

customers did not like to have this notation on the

telephones. He said that Lawhon told him by telephone

te nt ee

15

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

that he had a legitimate source for obtaining the

telephones; further, that he did not see how anyone could

steal that quantity of telephones.

There was other evidence such as Lawhon’s telephone

admonitions to both Nicholsons to be careful; that he was

concerned about the situation because he did not have any

documents to back up the shipments of phones though

they were coming through Western Electric. Lawhon

testified that defendants told him they would send some

documents obtained from New England Bell that would

protect him but he never got them though he asked Robert

Nicholson, and later William Nicholson, about it. Ap-

proximately 52 shipments of telephones were new or Class

“C” (reconditioned) telephones consisting of more than

7,000 telephones. Most had the marking “Bell System

Property—Not for Sale” and were shipped in the original

boxes to defendants. The Bell System logo was ground

and buffed off by defendants, as they said, at their

customers’ request. However, Mr. Corrigan, the

representative of Olson Electronics, which purchased

most of the stolen telephones invoived, testified that

defendant William Nicholson told him he had authoriza-

tion by letter from the Bell System to remove the iden-

tification. Corrigan said he asked William Nicholson at

least ten times to see the letter, which was never forth-

coming, and that Nicholson told him the phones were

being received from Burnup & Sims in Florida but they

were coming from Southern New England Bell. He did not

reveal that the telephones were coming from Lawhon.

[6] Only slight evidence was required to connect

William Nicholson with the conspiracy and the record as a

whole amply supports his participation in the conspiracy.

See United States v. Edwards, 5 Cir., 1974, 488 F.2d 1154,

1157; United States v. Perez, 5 Cir., 1974, 489 F.2d 51, 72;

16

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

United States v. Goodson, 5 Cir., 1974, 502 F.2d 1303,

1305-1306; United States v. Mayes, 5 Cir., 1975, 512 F.2d

637, 651.

[7] There was no objection by defense counsel to the

district judge’s instructions to the jury and no merit,

therefore, to the assertion by appellant William Nichoison

of error in the failure to give requested jury instruction

No. 3 of appellant William Nicholson relative to circum-

stantial evidence.* The requested instruction was for the

so-called reasonable hypothesis charge relative to cir-

cumstantial evidence. In United States v. Cortez, 5 Cir.,

1975, 521 F.2d 1, 4, we most recently held that it is not

necessary for the trial judge to instruct the jury on the

reasonable hypothesis test, that is, that the evidence must

exclude every reasonable hypothesis other than that of

guilt, when the jury is instructed properly on reasonable

doubt. See also United States v. Kolsky, 5 Cir., 1970, 423

F.2d 1111, 1113, where we pointed out that the Supreme

Court in Holland v. United States, 348 U.S. 121, 139-140,

75 S.Ct. 127, 137, 99 L.Ed. 150 (1954) said that “the better

rule is that where the jury is properly instructed on the

standards for reasonable doubt, such an additional in-

struction [i. e., the reasonable hypothesis test] on circum-

stantial evidence is confusing and incorrect ... .” See

also United States v. Rodriguez, 5 Cir., 1975, 523 F.2d 738

[1975]; United States v. Hansbrough, 5 Cir., 1971, 450 F.2d

328, 328-329; United States v. Boerner, 5 Cir., 1975, 508

F.2d 1064, 1068-1069.

* Requested jury instruction No. 3 reads as follows:

! charge you that if you believe from the evidence that the

government is relying on circumstantial evidence and this evidence

does not exclude every other reasonable hypothesis but that the

defendants had specific intent to commit the crime with which they

have been charged, it is your duty to return a verdict of not guilty

and acquit the defendants.

17

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

The trial Judge adequately and properly instructed the

jury in this regard and pertinent parts of his charges are

reproduced in the margin.* We find no error therein. See

United States v. Minichiello, 5 Cir., 1975, 510 F.2d 576,

578; United States v. Boerner, supra, at 1068-1069.

*The trial judge charged the jury on circumstantial evidence in

pertinent part as follows:

Evidence is of two kinds, direct and circumstantial.

Direct evidence is evidence which, if believed, establishes the

truth of a fact in issue without the aid of any inference or

presumption.

Circumstantial evidence, on the other hand, is evidence which,

without going directly to prove the existence of the fact in issue,

nevertheless gives rise to a logical inference that such fact does

exist.

It is not incumbent upon the government to prove the guilt of an

accused by the use of direct evidence alone. Such guilt may be es-

tablished by circumstantial evidence, as well as by direct evidence,

or by direct and circumstantial evidence.

To warrant a conviction on circumstantial evidence, each link of

the chain of circumstances necessary to be established in order to

prove the guilt of an accused musi be itself proved by competent

evidence beyond a reasonable doubt, and all the facts and cir-

cumstances necessary to show guilt must be consistent with each

other and with the main facts at issue, the existence of which the

evidence seeks to establish beyond a reasonable doubt, and all the

circumstances taken together must be of such a nature as to lead to

the legitimate conclusion, and produce a moral certainty, that the

crime charged was committed and that the accused committed it,

and such circumstaniial evidence must not be inconsistent with any

other rational conclusion.

No greater degree uo: certainty is required where the evidence is

circumstantial than where it is direct. The law demands a convic-

tion whenever there is sufficient legal evidence to show guilt be-

yond a reasonable doubt, and circumstantial evidence is iegal

evidence.

(Footnote continued on following page)

18

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

(Footnote continued from preceding page)

The Court also charged the jury as follows on reasonable doubt:

I will now give you the charge on “reasonable doubt’. You will

remember that the government has the burden of proof in this case

as to each defendant beyond a reasonable doubt.

In criminal cases, after a plea of not guilty, a presumption arises

and continues throughout the trial to its end that the defendant is

innocent of the things charged against him. The law does not re-

quire of a defendant that he prove himself innocent, nor is a

defendant required to explain any matter which has not been

proven, or about which you have a reasonable doubt: but it puts

the burden on the government to prove his guilt by the evidence

beyond a reasonable doubt. This principle of law is not mere idle

theory, but it must be followed by you, so that if there are two

reasonable theories equally supported by the evidence, one of

which is consistent with the guilt of a defendant, and the other

consistent with his innocence, you must adopt that theory consis-

tent with innocence, and acquit him, because he could not be said

to be guilty beyond a reasonable doubt.

The term “reasonable doubt”, as used in this charge, does not

mean just any possible doubt that you might have. It means such

reasonable doubt as a careful, prudent and reasonable person

ought to entertain in the circumstances proven. It means a doubt

founded on a reason, a doubt for which you can give a reason.

It does not mean a vain, fanciful or whimsical doubt, nor does it

mean a possible doubt created by the reluctance on the part of a

juror to perform an unpleasant task.

It means a doubt arising out of the evidence that is based upon

substantial grounds, and one is said to be convinced in a case of

this kind beyond a reasonable doubt when, after an impartial

comparison and consideration of all the evidence. you can con-

scientiously say that you feel an abiding conviction to a moral

certainty of the truth of the charge. A reasonable doubt exists

wherever, after careful and impartial consideration of all the

evidence in the case, the jurors do not feel convinced to a moral

certainty that a defendant is guilty of the charge.

If there is any reasonable doubt in your mind about the guilt of a

defendant on a charge in the indictment, he is entitled to the

benefit of such reasonable doubt and to acquittal on the charge.

(Footnote continued on following page)

19

Appendix—Opinion of the Fifth Circuit Court

of Appeals, Filed January 14, 1976.

[8] The contention of appellant William Nicholson

that the Government did not give him all exculpatory

material required by Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963) is likewise without

merit. This related to the failure of the Government to

furnish to defense counsel prior to trial statements of

witnesses Charles Thomas and William Kimmich taken by

the FBI. It appears that appellants both knew the

witnesses and could have examined them before trial. The

Statements were given, however, to defense counsel prior

to the witnesses testifying. Moreover, it is not clear that

the information contained in the statements was ex-

culpatory. The Government contends, therefore, and we

agree, that the statements were not Brady material and not

producible in advance of trial. See, e.g., United States v.

Harris, 5 Cir., 1972, 458 F.2d 670, 675-677. The witnesses

took the stand on call of defendants and were examined in

detail by defense counsel.

Finding no merit in any of the asserted errors of appel-

lants, the judgment of conviction as to both defendants is

affirmed.

(Footnote continued from preceding page)

If, on the other hand, you think his guilt is clear beyond a

reasonable doubt, then it is your duty to find him guilty on the

charge.

A reasonable doubt may arise not only from the evidence ad-

duced, but also from a lack of evidence.

Since the burden is upon the prosecution to prove a defendant

guilty beyond a reasonable doubt by proving beyond a reasonable

doubt every essential element of the crime charged, a defendant

has the right to rely upon failure of the prosecution to establish

such proof.