Petition — Largent v. United States

Supreme Court, U. S.

IN THE SUPREME COURT | mic EL RODAK, Jk., CLERK

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORIARI

RICHARD A. CAMPBELL

THOMAS G. PLUNKETT

Attorneys for Petitioners

1263 West Square Lake Road

Bloomfield Hills, MI 48013

(313) 335-9431

SUBJECT INDEX

Index to Authorities Cited

Opinions Delivered in Courts Below

Date of Entry of Judgment

to be Reviewed

Supreme Court Jurisdictional Basis

Statement of Questions Presented

Constitutional Provisions and

Statutes Involved

Concise Statement of the Case

Basis for Federal Jurisdiction

in District Court

Argument:

Question I

Question II

Question III

Question IV

Question V

12

13

24

30

36

39

Prayer for Relief

Certificate of Service

Appended Copy of Opinion of

Court of Appeals

Page

55

56

INDEX TO AUTHORITIES CITED

Barker v. Wingo,

407 U.S. 514 (1972)

Berger v. United States,

295 U.S. 79, 79 L. Ed. 1314,

55 S. Ct. 629 (1935)

Boyd v. United States,

35 L. Ed. 1077 (1892)

Dickey v. Florida,

398 U.S. 30 (1970)

Dillingham v. United States,

423 U.S. 64, 46 L. Ed. 2d 205,

96 S. Ct (1975)

Donnelly v. DeChristoforo,

416 U.S. 637, 649,

40 L. Ed. 2d 431, 94S. Ct. 868

(1974)

Katz v. United States,

389 U.S. 347, 88 S. Ct. 507,

19 L. Ed. 2d (1967)

Lopez v. United States,

373 U.S. 427

13,14,

18,19

48

37

38

People v. Beavers,

393 Mich. 554 (1975)

People v. Plamondon,

64 Mich. App. 413 (1975)

United States v. Bally

Manufacturing Corp., 345 F. Supp.

410, 426 (US DC-D La, 1972)

United States v Brown,

519 F. 2d 368

(6th Cir., 1975)

‘United States v. Calvert,

498 F. 2d 409

(6th Cir., 1974)

United States v Clay,

495 F. 2d 700,

705-707 (CA 7, 1976)

United States v. Hoffa,

385 U.S. 293

United States v. MacDonald,

531 F. 24.196 (4th Cir., 1976)

United States v. Magee,

261 F. 2d 609, 612

(7th Cir., 1958)

ii

25

46,47,

51

50,51

33

38

9,13,

17

30

United States v. Perez,

426 F. 2d 1073, 1079

(CA 2, 1970)

United States v. Perry,

512 F. 2d 805

(6th Cir., 1975)

United States v. Smith,

403 F. 2d 74

(6th Cir., 1968)

United States v. Tomasetta,

429 F. 2a 978 (CA l, 1970)

United States Constitution:

Fifth Amendment

Sixth Amendment

Statutes:

18 U.S.C. §2

18 U.S.C. §891

18 U.S.C. §894

18 U.S.C. §4208 (a) (2)

24

47,52

1,24,25

1,24,

26,27

4

Federal Rules of Criminal Procedure:

Rule 52 (a)

Miscellaneous:

Article 32, Uniform Code of

Military Justice (10 U.S.C. §832)

American Bar Association,

Code of Professional

Responsibility, Disciplinary

Rule 7-106C(2), p. 88 (1959)

iv

52

47

OPINIONS DELIVERED IN COURTS BELOW

No opinions below have been reported.

The Court of ‘ppeals Opinion below

is appended hereto:

December 13, 1976 Opinion of United States

Court of Appeals (Sixth Circuit affirming

District Court Convictions)

(C.A. Nos. 76-1285/76-1286)

A District Court Opinion is

voluminous and is separately presented:

July 2, 1974 Opinion of United States

District Court (E.D. Mich.) Denying

Defendants' Motions to Dismiss

(D.C. No. 4-80831, E.D. Mich.)

DATE AND TIME OF ENTRY

OF JUDGMENT TO BE REVIEWED

December 13, 1976. Judgment entered by

United States Court of Appeals (Sixth

Circuit) pursuant to Opinion of that

date in Cases numbered 76-1285/76-1286

SUPREME COURT JURISDICTIONAL BASIS

28 U.S.C. §1254

STATEMENT OF QUESTIONS PRESENTED

I.

II.

III.

WHETHER THE DELAYS (1) BETWEEN THE

DATE OF THE OFFENSE ALLEGED AND

THE DATE OF THE INDICTMENT AND

(2) BETWEEN THE DATE OF THE

INDICIMENT AND THE DATE

OF TRIAL, CONSTITUTED VIOLATIONS 0”

DEFENDANTS' FIFTH AND SIXTH

AMENDMENT RIGHTS TO DUE PROCESS

AND SPEEDY TRIAL.

WHETHER THE COURT OF APPEALS

ERRED IN FINDING CONSTITUTIONAL

VALID SECTIONS 891 AND 894 OF

TITLE 18, UNITED STATES CODE,

UPON WHICH THE INDICIMENT IS

BASED, AS APPLIED TO

NON-EXTCRTIONATE CREDIT

TRANSACTIONS.

WHETHER THE COURT OF APPEALS

ERRED IN AFFIRMING THE DISTRICT

COURT'S DENIAL OF DEFENDANTS'

MOTIONS TO EXCLUDE UNSUPPORTED

TESTIMONY THAT DEFENDANTS HAD

ENGAGED IN SIMILAR BUT SEPARATE

ACTS OF CRIMINAL EXTORTION.

WHETHER THE COURT OF APPEALS

ERRED IN NOT REVERSING THE

CONDUCT OF THE GOVERNMENT TRIAL

COUNSEL IN ATTEMPTING TO SHOW

THAT THE DEFENDANT HIGDON

ATTEMPTED TO ARRANGE THE HANGING

OF A PROSECUTION WITNESS AND IN

ASKING DEFENDANT HIGDON IF HE

HAD HEARD A PROSECUTION WITNESS

STATE THAT SHE HAD IDENTIFIED

HIGDON'S PHOTOGRAPH WHEN, IN FACT,

NO SUCH TESTIMONY EXISTED.

Constitutional Provisions and

Statutes Involved

Fifth Admendment of the United

States Constitution. "No person shall be held

to answer for a capital, or otherwise

infamous crime, unless on a presentment

or indictment of a Grand Jury, except in

cases arising in the land or naval forces,

or in Militia, when in actual service in

time of War or public danger; nor shall any

person be subject for the same offence to

be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case

to be a witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without

just compensation."

Sixth Amendment of the United

States Constitution. "In all criminal pro-

secutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial

jury of the State and district wherein the

crime shall have been cammitted, which

district shall have been previously ascertained

by law, and to be informed of the nature and cause

of the accusation; to be confronted with the

witnesses against him; to have compulsory pro-

cess for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defense."

viii

18 United States Code §2

(62 Stat. 684; 65 Stat. 717)

"(a) Whoever commits ar ffense

against the United States or aids, apets,

counsels, commands, induces or procures its

cammission, is punishable as a principal.

"(b) Whoever willfully causes a

act to be done which if directly performed }

him or another would be an offense against the

United States, is punishable as a principa’."

18 United States Code §891

(82 Stat. 160)

"(1) To extend credit means to make

or renew any loan, or to enter into any

agreement, tacit or express, whereby the

repayment or satisfaction of any debt or claim,

whether acknowledged or disputed, valid or

invalid, and however arising, may or will be

deferred.

"(2) The term "creditor," with

reference to any given extension of credit,

refers to any person making that extension of

credit, or to any person claiming by, under, or

through any person making that extension of

credit.

"(3) The term "debtor," with

reference to any given extension of credit,

refers to any person to whom that extension of

credit is made, or to any person who

guarantees the repayment of that extension of

credit, or in any manner undertakes to

indemnify the creditor against loss resulting

from the failure of any person to whom that

extension of credit is made to repay the

same.

"(4) The repayment of any extension

of credit includes the repayment, satisfaction,

or discharge in whole or in part of any debt

or claim, acknowledged or disputed, valid or

invalid, resulting from or in connection with

extension of credit.

"(5) To collect an extension of

credit means to induce in any way any person

to make repayment thereof.

"(6) An extortionate extension of

credit is any extension of credit with respect

to which it is the understanding of the

creditor and the debtor at the time it is made

that delay in making repayment or failure to

make repayment could result in the use of

violence or other criminal means to cause harm

to the person, reputation, or property of any

person.

"(7) An extortionate means is any

means which involves the use, or an express or

implicit threat of use, of violence or other

criminal means to cause harm to the person,

reputation, or property of any person.

"(8) The term "State" includes the

District of Columbia, the Commonwealth of

Puerto Rico, and territories and possessions

of the United States.

"(9) State law, including conflict

of laws rules, governing the enforceability

through civil judicial processes of repay-

ment of any extension of credit or the

performance of any promise given in

consideration thereof shall be judicially

noticed. This paragraph does not impair any

authority which any court would otherwise

have to take judicial notice of any matter

of State law."

18 United States Code §894

(82 Stat. 161)

"(a) Whoever knowingly

participates in any way, or conspires to do

so, in the use of any extortionate means

"(1) to collect or attempt to

collect any extension of credit, or

"(2) to punish any person for

the nonrepayment thereof,

shall be fined not more than $10,000 or

imprisoned not more than 20 years, or both.

"(b) In any prosecution under this

section, for the purpose of showing an implicit

threat as a means of collection, evidence may

be introduced tending to show that ome or

more extensions of credit by the creditor

were, to the knowledge of the person against

whom the implicit threat was alleged to have

been made, collected, or attempted to be

collected by extortionate means or that the

nonrepayment thereof was punished by

extortionate means.

"(c) In any prosecution under

this section, if evidence has been

introduced tending to show the existence,

at the time the extension of credit in

question was made, of the circumstances

“described in section 892(b) (1) or the

circumstances described in section 892(b) (2),

and direct evidence of the actual belief of

the debtor as to the creditor's collection

practices is not available, then for the

purpose of showing that words or other means

of commmication, shown to have been employed

as a means Of collection, in fact carried an

express or implicit threat the court may in

its discretion allow evidence to be

introduced tending to show the reputation

of the defendant in any commmity of which

the person against wham the alleged threat

was made was a member at the time of the

collection or attempt at collection."

CONCISE STATEMENT

OF THE CASE

("Tr." and "B Tr." refer respectively

to the four volume transcript of trial and

to the separately paginated one volume

transcript of Phillip Wayne Berryman's

trial testimony.)

On November 22, 1973, a grand jury in

the Eastern District of Michigan returned a six

count indictment charging that, in 1968 and 1969,

Defendants, Milton J. Largent and Jonathan B.

Higdon, had aided, abetted, induced, and procured

the use of extortionate means to collect an

extension of credit and had conspired to commit

the substantive offense in violation of 18 U.S.C.

891, 894 , and 2. Defendant Largent was charged

in each of the five substantive counts; Defendant

Higdon was charged in two substantive counts.

Both were charged in the conspiracy count.

Defendants filed Motions to Dismiss the

Indictment, for an evidentiary hearing on the

Motions to Dismiss, for a Bill of Particulars,

for discovery and inspection. All of the above

Motions were denied by the District Judge, except

the Motion for Discovery and Inspection, which

was denied in part and granted in part, princi-

pally to the extent to which the United States

Attorney agreed to furnish information. The

Defendants had a joint jury trial commencing

October 23, 1975 and running thirteen trial days.

Separately filed written Motions with

the lower Court seeking the dismissal with

prejudice of the indictment by reason of the

claimed undue delay, unexplained by the Govern-

ment, between the dates of the alleged offenses

and the date of the presentment by the Government

to the Grand Jury which returned the indictment,

by reason of which the Defendants were claimed

to have been prejudiced. Those Motions were

denied.

Prior to the Government's making its

opening statement to the jury, (Tr. 30),

Defendants orally moved the suppression of what

was later marked (Tr. 65) and received as Govern-

ment Exhibit #1, a Five Inch Reel of magnetic

tape, together with a transcript prepared by the

Government of Exhibit #1, identified as Government

Exhibit 1-A.

Exhibit #1-A had tabs identifying by

numbers 1, 2, 3, and 4 four telephone conversat-

ions. One party to each of the conversations was

William R. Michael, the victim of the extortions.

Mr. Michael consented to police-sanctioned record-

ing of the conversations. No search warrant was

ever sought or obtained for the recording by the

police or anyone else. The other parties to each

of the four conversations were each of the

Defendants, a son of the Defendant Largent and

Philip Wayne Berryman, one of the alleged co-

conspirators.

Following the jury trial, Largent and

Higdon were convicted on two substantive counts.

Largent was found not guilty on three substantive

counts. A mistrial was declared on the conspiracy

count following the jury's inability to reach a

verdict. Largent was sentenced to four years'

imprisonment on each count to be served

concurrently and Higdon was sentenced to three

years' imprisonment on each count to be served

concurrently, both men's sentences subject to the

immediate parole eligibility provisions of 18

U.S.C. 4208(a) (2).

Defendants' alleged offenses developed

from the collection of a gambling debt allegedly

owed to Defendants by William R. Michael.

Defendants were admittedly partmers in a book-

making enterprise on horse races in Detroit,

Michigan, and during the early summer of 1968

Michael became one of Defendants' custamers

(Tr. 398-399, 402, 485-487, 562). Michael

subsequently placed several bets each week on

horse races pursuant to an agreement which allow-

ed him to pay his lost bets to Defendants once

each week (Tr. 229-230, 567-573, 834, 862-863).

This payment arrangement continued until the

autumn of 1968, when Michael lost several large

bets on football games, losses which he could not

afford to pay under the weekly payment agreement

and by the end of 1968, Michael owed Defendants

$15,000 in unpaid bets (Tr. 231-234).

Defendants initially agreed to allow

Michael an unspecified period of time to arrange

payment of his gambling debt (Tr. 235, 237-238).

Defendants remained in close telephone contact

with Michael and made repeated demands for

payment (Tr. 239-240, 597-599, 865-866), though

they never threatened or physically harmed

Michael or his family.

After Michael failed to pay within

three months, he received a series of approx-

imately six telephone demands for payment from

several unidentified persons (Tr. 240, 244-246).

When Michael did not settle his debt in response

to these calls, one Phillip Wayne Berryman began

trying to collect the debt. Berryman is a man

who has been convicted variously of Armed

Assault to Rob, Conspiracy to Rob/Unarmed, and

First Degree Murder, among others, the Murder

conviction later being reversed.

Berryman testified at trial as a

government witness and his most cogent testimony

was contradicted by both Defendants’ testimony.

Berryman then contacted Michael's son and asked

him to furnish his father's address and telephone

number. After several telephone calls in which

Berryman made threats of violence, Michael's son

complied (B Tr. 24-27). Berryman then initiated

a series of telephone demands to Michael and the

pair met on several occasions. Despite Berry-

man's warning that "it wasn't no game, that

[Michael] was going to pay the money,” Michael

did not make any payments (B Tr. 28-29, 32;

Tr. 246-248). The majority of these calls were

received by Michael's wife, Grace, since Michael

was not living at hame during most of that

period (Tr. 250-251, 354, 357). Berryman's calls

became progressively more menacing until

eventually he threatened to kill Mrs. Michael

unless she revealed her husband's whereabouts

(Tr. 254). When these verbal threats failed to

produce results, Berryman and three associates

resorted to a series of more forceful collection

techniques which included throwing a brick and

a molotov cocktail through the windows of

Michael's residence (B Tr. 29-30; Tr. 252, 259-

261, 355-356, 372, 403-404), firing a pistol

into the livingroom (B Tr. 30-31; Tr. 261-26],

528), and damaging the front yard landscaping

by driving a vehicle over it (Tr. 251, 356).

As a result of this continued verbal

and physical harassment, Michael sought the

assistance of local police. Pursuant to police

instructions, Michael arranged another meeting

with Berryman for the evening of July 22, 1969,

at a bar near Michael's home. Michael was

accompanied to the meeting by Maurice Foltz, a

local police chief who posed as Michael's friend

who was responsible for a portion of the $15,000

gambling debt. Berryman, who had borrowed

Appellant Higdon's car for the evening, met

Michael and Foltz in Higdon's automobile outside

of the bar and accepted Michael's partial payment

of $200 and made further threats. When Berryman

received no further payments he responded with

telephone death threats to Michael's daughter

and son-in-law, to whose residence Mrs. Michael

had moved for protection (B Tr. 39-41; Tr. 358,

368, 389-391, 394-396). As a result of these

forceful requests from his family, Michael met

Berryman at a Detroit bar in early August, 1969,

and offered him two $2,500 cashiers checks.

Berryman testified that after conferring with

Defendant Largent, Berryman agreed to accept the

checks (Tr. 291-292, 325-326). The following

day, Michael delivered the $5,000 payment to

Berryman at the Detroit Race Course (B Tr. 41-

45; Tr. 292, 348). Berryman testified that he

took the checks to Largent who paid half of the

money to Berryman as his collection fee

(B Tr. 45).

On August 27, 1969, Michael, who had

travelled to Las Vegas, made his third payment

by sending a $4,800 Western Union money order to

Geraldine McNeal, a friend of Berryman's in

Detroit. Berryman and McNeal cashed the money

order; Berryman testified that he gave half the

proceeds to Largent and Higdon and retained the

remainder pursuant to the collection fee agree-

ment (B Tr. 45-47; Tr. 293-295, 492-494).

Defendants Largent and Higdon denied ever receiv-

ing any portion of the $15,000 gambling debt.

Michael testified that this was Michael's final

payment since Berryman had agreed to campromise

the debt for $10,000 (Tr. 349) though Berryman

contradicted that statement.

On direct examination by the Govermment,

Berryman testified over Defendants' objection,

that he first collected gambling debts for

Defendant Largent in "'69, part of '68," that

he “was to get fifty percent of everything I

collected.", (Tr. 14). He testified that he

collected "Maybe a half dozen or more," debts

for Largent; the smallest one was “about $875"

and the largest one "ran up to $15,000, same

went over that." (Tr. 15).

Defendants had told Michael they "paid

off" his football bets to a man nick-named

"Kilroy," because they were not accustamed to

taking football bets, especially bets of this

size and did not have the capital to handle bets

of that size ($15,000 on football games).

(Tr. 573-4) Kilroy was later identified by his

real name and it was established by a defense

witness that Kilroy died sometime between 1969

and 1975 and was, therefore, not available to be

called as a witness at trial in late 1975.

Defendants also told Michael that they were

getting pressured by Kilroy for the debt payment;

that they were resisting revealing to a collector

(Berryman) Michael's name and address but that

Largent eventually did give Berryman Michael's

name and showed Berryman where Michael lived.

They told him they didn't control the collector

from whose pressure Michael sought relief.

Defendants testified that Berryman told them that

- 10 -

one Sol Shindell, a well- , Detroit-area

big bookmaker had hired Berryman to collect the

debt. A defense witness, one Michael Wilcox,

later verified Berryman's friendship with Sol

Shindell (Tr. 800 ff). (Sol Shindell was the

victim of a gangland-style murder at his home in

a Detroit suburb at same time between 1969 and

1975.)

The defense witness Michael Wilcox

was a lifelong friend of Appellant Higdon. He

testified that while he and Berryman were in

prison together, Berryman told him that he (Berry-

man) was an associate of Sol Shindell.

The govermment trial counsel then began

a series of questions related to the hanging of

a prisoner in Wilcox's cell. The prosecutor

later told the Court that his purpose in posing

the questions was to infer that Defendant Higdon

had ordered his friend Wilcox to get Berryman

killed, because Berryman had informed the Govern-

ment that he (Berryman) had just been moved out

of the "hanging" cell the day before.

-ll-

On cross-examination of Defendant

Higdon, the prosecutor began (Tr. 899) to inquire

into Defendant Higdon's memory of the testimony

of Mrs. Grace Michael, the wife of the principal

alleged victim, William R. Michael, the testimony

of Mrs. Grace Michael having occurred at pages

352 through 379 of the trial transcript.

On page 900 the prosecutor is noted as

having asked the following question, "Did you

hear her (Mrs. Michael) testify that she had

picked your photograph of of a." At that point

a Motion for Mistrial was made by Higdon's

counsel, joined by Largent's counsel, for the

reason that the testimony referred to by the

prosecutor had never occurred. Despite the

District Court's repeating his statement of shock

and disturbance at continued prosecutorial mis-

conduct, as had occurred on the earlier incident

concerning the hanging in prison, the Court

denied the Motion for Mistrial.

The basis for District Court

jurisdiction was 18 U.S.C. §3231l.

o i2«

ARGUMENT

I. THE DELAYS (1) BETWEEN THE DATE OF

THE OFFENSE ALLEGED AND THE DATE OF

THE INDICIMENT AND (2) BEIWEEN THE

DATE OF THE INDICIMENT AND THE DATE

OF TRIAL, CONSTITUTED VIOLATIONS OF

DEFENDANTS' FIFTH AND SIXTH AMENDMENT

RIGHTS TO DUE PROCESS AND SPEEDY TRIAL.

Dillingham v. United States, 423 U.S.

64 (1975) recently set the tone for the Federal

Court application of the Sixth Amendment right

to a speedy trial. It was followed by United

States v. MacDonald, 531 F. 2d 196 (4th Cir.,

1976) and others.

In Dillingham, supra, this Court held

that even when the defendant has not shown

actual prejudice, the time elapsing between

arrest and indictment must be considered in

appraising the alleged denial of a speedy

trial.

The Court in Dillingham, supra,

referring to United States v. Marion, 404 U.S.

307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971),

= 13 -

"The Court held that ‘On its face, the

protection of the (Sixth) Amendment is

activated only when a criminal prosecution

has begun and extends only to those

persons who have been "accused" in the

course of that prosecution. These

provisions would seem to afford no

protection to those not yet accused,

nor would they seem to require the

Government to discover, investigate, and

accuse person within any particular

period of time.' (Emphasis supplied)

404 U.S. at 313, 30 L. Ed. 2d 468,

92 S. Ct. 455. In contrast,

the Government constituted petitioner

(Dillingham) an ‘accused’ when

it arrested him and thereby

commenced its prosecution of him."

(46 L. Ed. 2d at 207)

Neither of the Defendants were

"arrested" in connection with the offenses

made the subject of the indictment before the

same was filed. Defendant Largent, however,

was a federal prisoner at the time at

Leavenworth (Tr. 558, 559, 640) and had

previously been arrested by Federal agents in

Detroit in May, 1971 (Tr. 640). The Defendants

do not fall within the express holdings of

either Marion or Dillingham, supra; however,

it is submitted that they do fall within a

- 14 -

a spirit or a purpose underlying the Sixth

Amendment guarantee. It is abvious from the

FBI interview sheets, the tapes, the eyewitness

account of Sterling Heights Police Chief Foltz

and the facts set forth in the Concise Statement

of the Case, that the Defendants were "accused,"

though not formally, at least by the end of

January, 1970, when the case had been as fully

developed as it was thereafter.

Though, seemingly, there is no duty

of the Government to discover and investigate

to determine the claimed involvement of, and

the identity of criminal participants, in terms

of activating Sixth Amendment protections, it

would seem that .those protections should be

activated, though no formal arrests have been

made, where the Government's investigative case

is so camplete that it cannot be said that

anything thereafter caming to its knowledge has

any but surface improvement; and if, as here,

what was factually developed by investigation

as Of the FBI interviews of Berryman on

January 27 and 29, 1970, together with all

other investigation completed by that time, is

substantially all that was developed at trial

(B Tr. 70).

The Sixth Amendment's purpose must

be reviewed from both ends of the tunnel; to

have a speedy trial may not require speedy

investigation of the crime and its participants

in determining their camplicity or lack of it;

but once that investigation has been so

completed that it cannot be said that anything

thereafter is anything more than window

dressing, there should be recognized a duty on

the part of the Govermment, in temms of

activation of the speedy trial duty, to make

its presentation to a grand jury. Thus, the

Government is viewed as one of the two

participants, and must justify its refusal to

prosecute under such facts. A contrary

position would enable the Government, at will,

- Me

in its sole and uncontrolled discretion,

to selectively hold what it conceived to be a

winning hand, to play at its whim at a time

selected by it for presentment to a grand jury.

In MacDonald, supra, Defendant's

arrest preceded his indictment by about four

and one-half years. Defendant's arrest was

by United States Army personnel in connection

with the murder of his wife and two daughters

on an Army base. The Army formally charged

the Defendant with the murders, an Article 32

(of the Uniform Code of Military Justice)

proceeding was conducted, 56 witnesses

testified (of which 27 were called by the Amny),

and at the conclusion of same, an Army General,

upon the recommendation of an Army Colonel,

dismissed the charges.

Approximately eight months after the

charges were made, Defendant was honorably

discharged from the Army. Subsequently, the

Defendant was indicted.

e 1 «

The Court stated, as follows: The three cases referred to by Judge

"We conclude that the delay of four Craven in the above quote are Marion and

and one-half years, dating fram the

Army's accusation and detention of Dillingham, supra, and Barker v. Wingo, 407 US

MacDonald in May, 1970 to his indict-

ment in January, 1975, even when 514 (1972).

allowances are made for several intervals,

violates the right to a speedy trial In arriving at its decision in

guaranteed by the Sixth Amendment. We

therefore reverse and order dismissal MacDonald, the Court considered the conduct

with prejudice." (p. 2)

of the Government. The Court pointed out that:

District Judge Craven, dissenting,

"The government has not provided

stated in part, as follows: any satisfactory explanation for

this two-year hiatus. ***[NJo

"My brothers hold that the Sixth significant new investigation was

Amendment's guarantee of the right to undertaken during this period, and

a speedy trial as interpreted by the none was pursued fram August 1973

Supreme Court u. Marion, Baker, (sic), until the grand jury was convened

and Dillingham, is triggered by the Army a year later. Moreover, the United

. I think not and respect- States Attorney was familiar enough

fully dissent." with the case to recommend pro-

secution and specify his need for

an additional attorney in the summer

or fall of 1973. *** The leisurely

pace from June 1972 until the in-

dictment was returned in January

1975 appears to have been pri-

marily fro the government's con-

venience. ***(p. 22) Whether one

(p. 23) atributes the delay from

mid-1972, when the CID recommended

prosecution until the indictment

was returned in January 1975 to

indifference, negligence, or in-

eptisude, it must be weighed against

the government. Barker v. Wingo,

« tiie 407 U.S. at 514; Dickey v. Florida,

398 U.S. 30 (1970)"

- 19 -

The delay on the part of the

Government in the instant case, from February

of 1970 to November of 1973 (a delay of three

years and nine months) was unexplained, and this

despite the Government's being called upon to do

so in connection with the motions to dismiss

made below.

The lower court, in its opinion of

July 2, 1974, denying the motions to dismiss

stated, in material part, as follows:

"Thus, the motion to dismiss the

indictment for reason of delay is denied,

for defendant. has not shown any evidence

to indicate that there was an intentional

delay by the government, or even that

there has been any bad faith in such a

delay. Additionally, there is no

evidence at this point to show actual

prejudice. ***" (p. 8)

If, as defendants contend, the speedy

trial protection of the Sixth Amedment should be

activated at the time of the Government's dis-

covery of such case as it eventually presents

to a grand jury, and it has reason to know at the

time of its discovery that what it has discovered

is in effect all it will ever be able to present

- D-

to such grand jury, then there ought to be no

reason for requiring defendants to make an

actual showing of prejudice.

In the instant case, it is submitted

that defendants were substantially handicapped,

and prejudicied, as indicated, in part, by

their responses to questioning and the absence

of witnesses when measured against the trial

proceedings.

Instances of expressed memory

difficulty on the part of each Defendant were

many and varied, These appear throughout the

testimony of each Defendant and, in the case of

the Defendant Largent, appear especially at (Tr,

568, 582, 613, 615, 616, 619, 625, 630, 663, 687,

689, 729, 735 and 739); in the case of Defendant

Higdon, at (Tr, 831, 858), They indicate a

profound difficulty in meeting the charges,

Due to various adjourmments, none

of which was sought by defense counsel prior to

the commencement of trial, the trial did not

- 21 -

cammence until October 23, 1975, or nearly

six years after the last of the claimed offenses,

and almost five years after the Government was

possessed of all it knew or should have know

concerning the claimed case against the Defendants.

oi ‘Defendants Fifth Amendment and due

process right to a speedy trial were cleary

violated.

The motions filed by Defendants

seeking the dismissal by reason of the undue

and unexplained delay on the part of the

Govermment in presenting its case to the Grand

Jury were denied by the lower court on July 2,

1974.

Prior to trial, Defendants unsuc-

cessfully moved for dismissal with prejudice

of the indictment, claiming the unconstitutiona-

lity of Sections 891 and 894 of Title 18, United

States Code, to the extent that those sections

purport to proscribe, as federally criminal, the

use of extortionate means to attempt to collect

- 22 -

gp ety

an unenforceable obligation concerning which

there was a claimed extension, but not an

"extortionate" extension, of credit.

An F.B.I. interview sheet of

Berryman dated Februray 10, 1970, pertaining

to two interviews by special agents of the

F.B.I. though not made a trial exhibit, con-

clusively establishes that Berryman, as of the

time of his January 27 and 29 interviews by

Special Agents Harold D. Smith and Ronald

E. West provided the agents with sufficient

information (Tr. 70), which, if believed by them,

together with other information in the possession

of the F.B.I., including Sterling Heights and

Southfield Police reports and the complained of

tapes of the four conversations between Michael,

on the one hand, and Largent, Higdon and

Berryman on theother hand, and together with

the known meeting between Michael and Berryman

and Sterling Police Chief Foltz at the King's

Arms Restaurant or Bar, to present a case to a

grand jury.

o Be

II. | THE COURT OF APPEALS ERRED IN

FINDING CONSTITUTIONALLY VALID

SECTIONS 891 AND 894 OF TITLE 18,

UNITED STATES CODE, UPON WHICH THE

INDICIMENT IS BASED, AS APPLIED TO

NON-EXTORTIONATE CREDIT TRANSACTIONS,

The Court of Appeals has decided an

important question of federal law which has not

been, but should be decided by this Court,

There can be no doubt of the power

of Congress to prescribe extortionate extensions

of credit, more cammonly known and referred to

as “loan-sharking", United States v, Perez, 402

U.S. 146.

The Defendants were not charged with

making "extortionate" extensions of credit. All

witnesses verified that no interest was charged

on the gambling debt and there is no proof that

any threats were made at the time of the bets to

use violence in collecting then.

"An extortionate extension of credit

(Underline ours) is any extension of

credit with respect to which it is

the understanding of the creditor and

the debtor at the time it is made that

- Mo

delay in making repayment or failure

to make repayment could result in the

use of violence or other cr

means to cause harm to the person,

reputation or property of any person."

(18 USC §891[6])

The use of extortionate means to

attempt to collect an extension of credit (in

this case, a gambling debt) does not have

the requisite impact on interstate commerce

unless, on a case by case basis, depending

upon the particular facts alleged and shown,

it is shown to have such impact or effect.

Gambling itself is treated in this

manner. In U.S. v. Bally Manufactuing Corporation,

345 F Supp 410, 426 (USDC - ED La, 1972) the

Court stated, as follows:

"*k**kHowever, to have the requisite

effect on interstate commerce and

to come within the ambit of section

1955, the gambling business must be

of a certain size and in substantially

continuous operation, If these cri-

teria are satisfied then it does not

matter that the particular business

is purely intrastate in its operation

because by statutory definition, based

on congressional inquiry, such a busi-

ness as part of a class of activities

involves a per se effect upon or use

@- B-

of interstate commerce or its facilities,"

No such minimum requirements to

establish "a per se effect upon or use of inter-

state cammerce or its facilities" are set forth

in 18 USC § 894, Any and all "extortionate

means" to attempt to collect any and all

"extensions of credits", no matter their source,

the nature of the participants in the use of

extortionate means, the parties to the extension

of credit, or the effect or lack of effect on

interstate commerce, are proscribed by 18 USC

§ 894 and made federally criminal thereby.

State extortion statutes need no longer exist

for they are effectively supplanted, at the

whim of each federal prosecutor, by 18 USC § 894,

While the Defendants concede the

constitutionality of 18 USC § 894 as applied to

an obligation which otherwise would be dis-

chargeable in bankruptch on the theory that

otherwise the purpose of the bankruptch laws

would be frustrated, a gambling debt in Michigan

is not enforcible by lawful means, It is,

- Be

therefore, not necessary for a debtor to

list his gambling debt in his petition in

bankruptcy. Since he need not list it, the

purpose of the bankruptcy laws can not be

"frustrated" in any sense of the word. There

can be no bankruptcy basis for the operation

of Sections 891 and 894 as applied to the

use of extortionate means to collect, or attempt

to collect a gambling debt here.

In United States v. Tomasetta, 429

F2d 978 (CA 1, 1970), defendant's conviction of

using extortionate means to collect extensions

of credit in violation of Section 894 of Title

18, United States Code, was reversed and remanded

with instructions to dismiss the indictment (by

reason of the vagueness of the indictment.) In

reversing defendant's conviction, however, the

Court further stated, as follows, at page 981:

"In fairness to the parties,

we feel that in dismissing the in-

dictment, which presumably will lead

to the government's seeking a new one,

we should make reference to the fact that

the court is not presently of one mind

o 2 @

on the question whether, had the

indictment been sufficient, we would

nevertheless have been obliged to

sustain the defendant's motion for

acquittal. The constitutionality of

the statute is a subject of serious

controversy. (citations omitted)

(Parenthesis ours) By failing to

limit itself to transactions involving

exhorbitant interest charges, thereby

probably justifying an assumption that

the transaction involves organized

crime and consequently affects inter-

state cammerce, it reaches conduct

which has no apparent effect on

interstate commerce, (Underline ours)

On the other hand if it should be

decided that the statute is unconsti-

tutional on in that it is overbroad,

it is debatable whether a defendant who

allegedly charged an exorbitant interest

rate has standing to complain. (Citations

omitted) (Parenthesis ours) Since we

are not in accord, we see no present

need to resolve these difficult

questions. ***"

upon interstate commerce can not be doubted.

Congress did not do so,

There is nothing about a gambling

debt, per se, which affords a basis for Congress

to properly determine, as it did in the case of

loan-sharking, that there is an effect on inter-

state cammerce. Congress might have limited pro-

secution of the use of extortionate means to

collect, or attempt to collect a gambling debt

to cases where there is shown to be an effect - 29 -

~ Be

III. THE COURT OF APPEALS ERRED IN

AFFIRMING THE DISTRICT COURT'S

DENIAL OF DEFENDANTS' MOTIONS

TO EXCLUDE UNSUPPORTED TESTIMONY

THAT DEFENDANTS HAD ENGAGED IN

SIMILAR BUT SEPARATE ACTS OF CRIMINAL

EXTORTION.

The general rule of the inadmissi-

bility of other offenses than the offense charged

in an indictment was set forth in Boyd v. United

States, 35 LEd 1077 (1892). In Boyd, supra,

defendant's conviction of murder arising out of

an attempt to rob was reversed, During his trial,

defendant objected to testimony that he had

participated in other robberies, The Court

decided that there was no casual connection

or relationship between the robberies and the

offense of which he was convicted, The same

effect is United States v, Magee, 261 F2d 609,

612 (CA 7, 1958), the Court stating, as follows;

"We are convinced that the

crimes commiteed in Illinois had no

connection (Underline ours) with the

South Bend holdup and that evidence

of the former was improperly (and

incidentally, needlessly) admitted hed

the district court.***"

- 30 -

What "connection" did the other claim-

ed collections on behalf of the Defendant

Largent have with the collection charged

in the indictment? It is submitted that they

had none. The case would be different if Largent

had testified (without any evidence having been

elicited on direct examination concerning other

claimed collections) that he had hired Berryman

to make lawful and peaceable collections from

others; that he had never instructed him to

make what would be an extortionate collection

and claimed no knowledge of Berryman's ex-

tortionate activities, In this situation,

evidence of other extortionate collections in-

cluding testimony from the extortion victims,

would be admissible to prove Largent's intent

in hiring Berryman. And, evidence of the

absence of "mistake" on Largent's part would be

admissible only if "mistake" were suggested by

Largent in his testimony. Largent's testimony

- 3 -

was clear, There was no mistake about it. He

testified that he did not hire Berryman to collect

any money from Michael.

Berryman's testimony concerning

other claimed collections was admissible only

to rebut a defense claim, or testimony supporting

a claim, and there was none, concerning con-

trary intent (e.g., the hiring of Berryman to

peaceably collect), or mistake (e.g., a claim

by Largent that Berryman was "mistaken" as to

Largent's instructions, a claim which was never

made) or to show a scheme or design or plan.

The trial court based its decision on "mis-

take" and "scheme", There was nothing about

Berryman's collection method to qualify it as

rising to the dignity of a "scheme", It

was plain, out and ovt, violence and the threat

of it. Indeed, if it was a "scheme", there

was nothing to distinguish it from the approach

that might have been employed by any other

common street criminal, This is manifestly not

a case where a peculiar "scheme" was employed

- Me

by Berryman, or by Largent, or by Largent

in conjunction with Berryman.

By way of contrast, United States

v Clay, 495 F2d 700, 705 - 707 (CA 7, 1974)

furnishes an example of evidence properly

admissible to show motive or intent and which

was inextricably linked to proof of the can

mission of the offense charged.

There is absent here, but present

in Clay, supra, a question of intent. Here,

there is no ambiguity about the fact of an

extortionate collection from William R. Michael.

And, Largent and Higdon either hired Berryman

or they did not. The unsupported testimony of

Berryman that he arranged a 50 - 50 split on

collections from others served only to extremely

prejudice the jury into believing the greater

likelihood that these defendants hired Berryman

to do the extortionate collection Michael,

and this on the impermissible theory that if a

person commits one crime, expecially the same

= 33 -

kind of crime, then he is all the more likely

to have committed the crime charged.

The other collections were legally

irrelevant to establish Berryman's agency; they

were legally irrelevant in aid of his own

credibility.

Finally, evidence as to the other

claimed, and uncharged collections, had nothing

to do with the identity of either Berryman or

Largent, had nothing to do with proving whether

or not Largent had guilty knowledge in terms of

the requirement that he "knowlingly” allegedly

"aided", etc. in the extortion of Michael;

there was nothing ambiguous about Berryman's

intent, with respect to the manner of collecting

from Michael (and Largent denied that he hired

him to handle the collection of Michael) ;and

there was no question of motive that could be

aided, impermissibly, by the admission into

evidence of Berryman's testimony regarding

uncharged extortions.

- 34 -

The other claimed extortions, not

charged in the indictment, showed no facts re-

lating to the charged conspiracy or to any of the.

substantive offenses. The jury demonstrated sf

by its failure to reach agreement on the

Conspiracy Count that the Govermment's case con-

cerning it was weak at best, from the standpoint

of the jury's assessment of Berryman's credibility.

There is not present in these trial proceedings

the ability to say with moral certainty that

the proofs were overwhelming, or even strong,

in support of the convictions secured and

attacked. It certainly cannot be said that

the introduction of these other offenses (col-

lections and attempts to collect) was mere

harmless error. Who can say what effect

Berryman's testimony concerning those other

offenses had upon the mind of even a single juror?

o Be

IV. THE COURT OF APPEALS ERRED IN NOT

REVERSING BECAUSE TELEPHONIC CON=

VERSATIONS INVOLVING THE DEFENDANTS

WERE INTERCEPTED AND RECORDED WITHOUT

THEIR CONSENT AND EVIDENCE OF THESE

CONVERSATIONS SHOULD HAVE BEEN

SUPPRESSED AS DEFENDANTS MOVED,

Richard seale of the Southfield Police

Department testified that he recorded telephone

conversations allegedly involving the Complainant

Michael, and the Defendants Largent and Higdon.

(T 48 et seq.)

Conversations were recorded with

the consent of Michael but without the consent

of either Defendant. The record does not reveal

that a warrant was issued permitting these tele-

phone interceptions. The Defendants objected to

the introduction of evidence regarding these

conversations, which eventually became the

Government's Exhibits 1 & 1-A, but that this

objection was denied.

The defense maintained that consent

for the electronic eavesdropping was required,

despite extant Federal and United States Supreme

Court authority, and cited two recent Michigan

cases, People v. Beavers, 393 Mich 554 (1975)

and People v. Plamondon, 64 Mich App 413

(1975), which precluded warrantless eavesdropping

without consent.

Although these cases are clearly

not binding on this Court and although existing

Federal authority permits the electronic eaves-

dropping herein, Defendants respectfully main-

tain that the rule in these cases should be

modified to preclude electronic eavesdropping

of the type herein, without consent.

Pursuant to Katz v. United States,

389 U S 347; 88 S Ct 507; 19 L Ed 2d (1967),

Defendants Largent and Higdon had a justifiable

expectation of privacy when they were tele—

phoned by Richard Michael. This privacy interest

was breached when Michael permitted their con-

versations to be recorded by the local police.

Consequently, as discussed in the Plamondon and

Beavers cases, the consent of Defendants Largent

and Higdon should have been a prerequisite to an

electronic interception of the telephone

- 37 -

V. THE COURT OF APPEALS ERRED IN NOT

REVERSING THE CONDUCT OF THE

GOVERNMENT TRIAL COUNSEL IN

communications, ATTEMPTING TO SHOW THAT DEFENDANT

Michael made the calls to Defendants mennee OF A jinn dae aA

IN ASKING DEFENDANT HIGDON

at the request of the police and was, therefore, IS ID SEED A SUDSRCRELON WERENS

) STATE THAT IDENTIFIED HIGDON'

a govermment agent, Several cases from this Sat Ge, te GEE, WD Gas .

TESTIMONY EXISTED.

A significant departure fram the

accepted and usual course of judicial proceedings

occurred during trial and it requires the

Court usually cited on this question are dis-

tinguishable from, and indeed support, appellants

contention here, United States v, Hoffa, 385 U.S,

293 and Lopez v, United States, 373 U.S, 427, both

: , ; —_

— by . ——— exercise of this Court's power of supervision.

dant's quarters by invitation of Defendant, It Se Os ” wuheuines

would be absurd to imply consent by the instant indictment with crimes ranging fram Conspiracy

Defendants to the intrusion into their hames. to Extortion, yet unexpectedly Defendant Higdon

found himself on trial for an attempted hanging

of the Government's star witness, Phillip Wayne

Berryman. To state that the defense was

surprised is obvious. To state that the

Defendants were denied a fair trial becomes

apparent from examination of the record which

reveals that the United States Attorney had

no basis for charging the Defendants with

Attempted Murder.

- 3% -

- ®-

During the cross-examination of

Michael Wilcox, a defense witness and friend of

Defendant Higdon, the United States Attorney

showed that Wilcox knew the prosecution witness

Berryman when they were both at the Ionia State

Reformatory (Tr. 805) and that he, Wilcox, knew

"pretty much what was taking place among the

prisoners." (Tr. 805-805) The United States

Attorney then conferred with the case agent and

subsequently asked Wilcox about a hanging that

allegedly occurred while Berryman was at Ionia.

The following colloquy transpired. (Tr. 806):

"Q. While you were at Ionia at the same

time Berryman was there, did you came to

know about an individual who had been

found hung in the cell?

"A. I don't know if that was true. The

guy was hung.

"Q. Look. Was somebody found in your

cell hung?

"A. Yes, there was.

"OQ. You are familiar with the incident?

"Mr. Webb: Your Honor, I don't know what

he is getting into here. I don't know

@ Oe

"whether it is anything to do with this

lawsuit or his witness or what.

"Mr. Newcomer: I will make an offer of

proof."

The Court then excused the jury, and

the Special Attorney for the Justice Department

stated that the hanging was a "very mysterious

unsolved type of incident at Ionia (Tr. 807) and

that Berryman believed that he was the person

marked for the hanging (Tr. 807-808). The

unthamien of the United States Attorney's

remarks was clearly that he was hoping to prove

that Higdon was involved in an abortive attempt

on the life of the prosecution's star witness,

Berryman.

It became immediately apparent,

however, that Mr. Newcomer possessed absolutely

no basis for this inference, and that his

questioning of Wilcox was based on, at best,

unsubstantiated conjecture. Mr. Newcomer

stated: (Tr. 811):

"I can't prove Higdon ordered Berryman

hung or that Higdon ordered anybody

hung."

- 4] -

Judge Churchill responded to the The special attorney for the Justice

prosecutor's action by stating that he found Department continued to elicit prejudicial

error even without a defense objection testimony without foundation when he asked

(although it should be noted that the defense Defendant Higdon during cross-examination if he

did object). He stated: had heard one of the complainants, Mrs. Michael,

"With all of the shenanigans that testify that she had "picked your photograph

Mr. Berryman has been involved in, with

all of the people that Mr. Berryman has out." (Tr. 900)

harmed in this world, I could well

understand that samebody might want to The defense immediately objected

take revenge on him. That's possible.

But to infer it might be Mr. Higdon I because there was absolutely no proof that

think is overreaching and would be highly

prejudicial. I am surprised the Mrs. Michael had ever previously testified that

defendants object because I think they

would have a built-in error even without she had picked Defendant Higdon out of the photo

an objection. It would be so prejudicial.

I sustain an objection to that further lineup. Counsel further stated that he felt it

line."

would be impossible to cure this error through

Pursuant to the Court's ruling,

a curative instruction (Tr. 900, 901).

defense counsel Webb requested a curative

The second instance of prosecutorial

instruction and the following instruction was

misconduct was too much for even Judge Churchill.

presented by the Court: (Tr. 813)

He stated (Tr. 903):

"Members of the Jury, there is same

question about samething that happened "You can check the record but it is the

to samebody in Ionia. There is no first I ever dreamed there was a line-up.

showing of any possible connection between I want to say this: I am going to say it

that and this trial and you should right now because I was looking it up

entirely disregard that line of this morning. I am thoroughly disgusted

questioning." with the continuous practice of the

Govermment in this case and in other cases

- Oe

- 43 -

“recently caming out with things that they

ought not to come out with. I thought that

business yesterday about the hanging was the

most atrocious incident I ever seen in my

life in court, just terrible, absolutely

unexcusable. It was an inference on an

inference on an inference on an inference.

I know these things happen from time to

time but I have been around this business

for a long long time and they have been

happening. I have seen more of it in the

last few weeks than I have seen in my

entire lifetime."

Despite this, Defendants’ Motion for a

Mistrial was denied (Tr. 915). And, again, a

curative instruction was presented to the jury

(Tr. 919).

Thus, although the trial Court

recognized error on both occasions when the

prosecutor paraded unsupported allegations before

the jury, Defendants were not afforded a new

trial. Defendants respectfully maintain that the

error perpetrated by the prosecution was so

egregious and malicious, especially on the first

occasion, that the only proper remedy is a new

trial.

» @h-

This result is demanded by Berger v.

United States, 295 U.S. 78, 79 L. Ed. 1314,

55 S. Ct. 629, (1935) and Sixth Circuit authority

subsequent to that ruling.

In Berger, the trial Court, as here,

sustained objections to various questions,

insinuations, and misstatements, propounded by

the United States Attorney, and presented curative

instructions to the jury. This Court ruled,

however, that this was insufficient and that a

new trial was required. It analyzed the Attorney

General's misconduct in terms of his intent, the

cumulative effect of his misconduct, the

sufficiency of the curative instructions, and the

strength of the Govermment's case. The

misconduct herein, will be analyzed within the

same framework.

o Be

A. THE GOVERNMENT'S ATTORNEY

INTENTIONALLY AND MALICIOUSLY

INJECTED UNSUPPORTED EVIDENCE TO

PREJUDICE DEFENDANTS' CASE.

In stating that it was “the most

attrocious incident” he had ever seen in Court

(Tr. 903), Judge Churchill summed up what has

to be one of the most far-reaching examples of

prosecutorial overkill in the annnals of

American jurisprudence. Fortunately, there is

case law that more than merely condemns the

United States Attorney's action in the hanging

incident.

In U.S. v. Brown, 519 F. 2d 1368

(6th Cir., 1975), a panel of this Court reviewed

a situation wherein the Government questioned a

witness about prior alleged bad acts of the

Defendant, even though the Government had no

basis for alleging that the Defendant had

committed prior bad acts. Judge Edwards for the

Court, in reversing, stated:

- 46 -

LS ee

"The District Court acted properly in

sustaining the abjection to the

prosecutor's question about the Dixie

Mafia. However, the United States Attorney

should have been well aware of the legal

irrelevance and prejudicial effect of this

question. The code of professional

responsibility of the American Bar

Association states the matter in this

way:

“Appearing in his professional capacity

before a tribunal, a lawyer shall not:

«++ (2) ask any question that he has no

reasonable basis to believe is relevant

to the case that is intended to degrade

a witness or other person..."

American Bar Association, Code of

Professional Responsibility,

Disciplinary Rule 7-106 C(2),

Page 88 (1959).

"In Berger v. United States, [citations

omitted], the Supreme Court stated that

the United States Attorney's duty to the

public and the defendant obliges him to

seek justice rather than convictions.

The prosecutor in this case appears to

have been preoccupied with seeking the

latter rather than the former. His

conduct requires reversal of what other-

wise would likely have been an untainted

conviction."

512 F. 2d 805, 807

Pursuant to Brown, Perry, and

Berger, supra, the irresponsible and malicious

attempt by the United States Attorney to pin a

- 47 -

As Justice Douglas stated in dissent in

Donnelly v. DeChristoforo, 416 U.S. 637, 649,

40 L. Ed. 2d 431, 94 S. Ct. 868 (1974):

"The function of the prosecutor under

the Federal Constitution is not to tack

as many skins of victims as possible to

the wall. His function is to vindicate

the right of people as expressed in the

laws and give those accused of crite a

fair trial."

The incident involving the photo

lineup reveals, perhaps, less bad faith, but as

discussed, infra, the net effect of the actions

of the Special United States Attorney requires

that Defendants be afforded a new trial.

B. THE CUMULATIVE EFFECT OF

Where prosecutorial misconduct is

repeated, the case for reversal is strengthened.

In Berger, the Court stated:

- Be

"Moreover, we have not here a case where

the misconduct of the prosecuting attorney

was slight or confined to a single

incident, but one where such misconduct

was pronounced and persistent, the probable

cumulative effect upon the jury which

cannot be disregarded is inconsequential."

[Citations amitted] 295 U.S. 89

The hanging and photo lineup incidents

represent back-to-back examples of prosecutorial

misconduct. Taken together, they magnify the

prejudicial impact on the jury.

C. THE PROSECUTOR'S MISCONDUCT SHOULD

NOT BE REGARDED AS HARMLESS ERROR

BECAUSE OF, INTER ALIA, Ti RELATIVE

WEAKNESS OF THE GOVERNMENT'S CASE.

Defendant Largent was found not guilty

on Counts III, IV, and V of the Indictment. The

jury was unable to reach a verdict on Count I,

and found Defendants guilty only on Count II and

Count VI after deliberating three days. This

is hardly an open and shut case for the

Govermment, and the prejudicial actions of the

prosecution can therefore not be regarded as

harmless.

- 49 -

In United States v. Calvert, 498

F. 2d 409 (6th Cir., 1974), the Sixth Circuit in

a per curiam opinion considered, in reversing a

conviction, that the jury had deliberated over

twelve hours before finding the Defendant guilty,

where the Government had improperly introduced

evidence of a Bureau of Identification card where

there was no basis for alleging that Defendant

had a prior criminal record. The Court stated

at 410-411:

"The Appellee urges that the evidence

of Appellant's guilt was so overwhelming

that any error with reference to the use

of Bureau of Identification card could not

have affected Appellant's "substantial

rights" and should therefore be disregarded

under Rule 52(a), Federal Rules of

Criminal Procedure. If, indeed, the

evidence was as overwhelming as Appellee

would have us believe, the introduction

of this improper evidence carrying with

it the implication of Appellant's previous

difficulties with the law, can only be

regarded as overkill on the part of the

Goverrment. The jury deliberated a total

of twelve hours before returning its

verdict, and particularly in that

circumstance we cannot conclude the

admission of the questioned evidence

to be harmless error."

See also, U.S. v. Smith, 403 F. 2d 74, (6th Cir.,

1968) and Berger v. United States, supra.

The jury herein was not out twelve hours

as in Calvert but was deadlocked for three days.

The ultimate verdict was hardly a smashing

victory for the Govermment, and thus the pre-

judicial actions of the United States Attorney

cannot be considered as harmless.

D. THE CURATIVE INSTRUCTIONS DID NOT

PREVENT REVERSIBLE ERROR.

An examination of recent Sixth Circuit

authority reveals where the United States

Attorney introduces improper evidence to the

jury, a curative instruction may not be

effective, especially where the instruction

does not include a strong rebuke of the

Govermment's actions.

Judge Edwards, in Brown, supra,

- 51 -

"Nor can we hold that the error committed

at this trial was cured by judicial

admonition. The admonition relied on by

the Government on this appeal did not

serve to strike (and condem) the

questions of the prosecutor. It only

instructed the jury to disregard Witness

Centers' denials in answering the

suggestive questions." 519 F. 2d 1369,

1370

In Perry, supra, the Court, in the

same vein as Judge Churchill, attacked the

deliberate injection of inadmissible evidence,

but stated that a curative instruction did not

erase the prejudice. The Court said at 806:

"We have stated in other cases our

concern about the practice of prosecutors

deliberately injecting inadmissible

prejudicial evidence into criminal trials

and thereby jeopardizing otherwise strong

cases. [citations amitted]

"In this case, the prosecutor committed

several improprieties that either were

not corrected or not susceptible of

correction by the District Judge, and

cambined to affect adversely Appellant's

substantial rights." Rule 52(a),

Federal Rules of Criminal Procedure

Although Judge Churchill strongly

remonstrated the special attorney for the

Justice Department outside of the hearing of

@ $2 -

the jury, he failed to do so in the presence

of the jury. Pursuant to the above authority,

the two curative instructions, were therefore

ineffectual.

This is especially so because it

cannot be assumed, that the jury did not believe

the hanging was unrelated to the Defendants,

especially after the prosecutor, in the presence

of the jury, said that he could make an offer

of proof (Tr. 806). When the representative of

the Govermment states to a jury that he can prove

that the allegations regarding a hanging are

relevant to the lawsuit, a jury tends to believe

the Government. As the Court in Berger stated

at 88:

"It is fair to say that the average

jury, in a greater or less degree, has

confidence that these obligations, which

so plainly rest upon the prosecuting

attorney, will be faithfully observed.

Consequently, improper suggestions,

insinuations, and, especially,

assertions of personal knowledge are apt

to carry much wieght against the accused

when they should properly carry none. . .”

» 83 -

In light of all the factors discussed

in this section and those above, ic cannot be

safely ascertained that the jury disregarded

the actions of the United States Attorney. As

Judge Churchill intimated, the prejudicial

tactics of the Goverrment in this case should not

be permitted to go unnoticed and unchecked. A

new trial is necessary to vindicate Defendants’

rights to a fair trial.

The Court of Appeals made short work

of its consideration of this significant issue,

in only two short paragraphs at the end of its

Opinion of affinmance.

@ $4 <

PRAYER FOR RELIEF

For the reasons above stated,

Petitioners pray that this Honorable Court

issue a Writ of Certiorari in this cause and,

after later full presentment, reverse their

convictions herein.

THOMAS G. PLUNKETT

Attorneys for Petitioners

1263 West Square Lake Road

Bloomfield Hills, MI 48013

(313) 335-9431

o $8 «

three (3) copies of the foregoing Petition for

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date

Writ of Certiorari were mailed to:

Solicitor General

Department of Justice

Washington, D.C. 20530

and one (1) copy of the foregoing Petition

for Writ of Certiorari was mailed to counsel

for the Govermment in the Court below at the

following address:

Dated

John J. Klein

Criminal Division

Appellate Section —

Department of Justice

Washington, D.C. 2053

“a

Attorney for Petitioners

1263 West Square Lake

Bloomfield Hills, MI 48013

(313) 335-9431

Nos. 76-1285 & -1286

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1285

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

Mitton J. LARGENT,

lant APPEAL from the

Defendaent-Appe ‘| United States District

Court for the Eastern

No. 76-1286 District of Michigan.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Ve

JONATHON B. Hicpon,

Defendant-Appellant.

Decided and Filed December 13, 1976.

Before: Weick, CELEBREZzzZE and ENGEL, Circuit Judges.

Weick, Circuit Judge. Appellants Largent and Higdon

were convicted by a jury in the District Court on two counts

of a six-count indictment charging them with the substantive

offenses of aiding, abetting, inducing, and causing the use of

extortionate means to collect an extension of credit in violation

of 18 U.S.C. §§ 891, 894 and 2. Largent was acquitted on

three counts of the indictment charging the commission of

other substantive offenses. Both Largent and Higdon were

=

2 United States v. Largent, et al. Nos. 76-1285-86

acquitted on the count charging conspiracy to commit the

substantive offenses.

Largent received concurrent sentences of four years on each

count, and Higdon three years. Both sentences were subject

to immediate parole eligibility provided in 18 U.S.C. § 4208

(a)(2).

In their appeal the principal contentions are that they were

denied a speedy trial; that the statutes under which they were

indicted were unconstitutional; that the indictment was vague

and defective; that the District Court erred in its instructions

to the jury and in other rulings; that evidence of defendants’

prior similar acts was improperly admitted against them, and

in the admission or exclusion of other evidence; and that the

attorney for the Government asked improper and prejudicial

questions of certain witnesses.

I

Largent and Higdon were partners in a gambling enterprise

in Detroit, Michigan. The victims of the extortionate means

charged in the indictment were William R. Michael and mem-

bers of his family. These means were used in efforts to collect

a gambling debt owed by Michael to the partners.

Michael became a customer of the partnership in the sum-

mer of 1968, and placed bets with them each week on horse

races and football games; he would pay his losses once each

week. It was not until November, 1968 that Michael lost

several large bets on football games and horse races, and was

unable to make his weekly payment of losses to the partner-

ship. Michael nevertheless continued to place his bets with

the partnership and in early 1969 he owed $15,000 in unpaid

losses.

For the next three months appellants were unsuccessful in

their repeated telephone calls to collect this large debt from

Michael. They then hired Philip Berryman, a known gambling

debt collector, to collect the debt from Michael. He ( Berry-

Nos. 76-1285-86 United States v. Largent, et al. 3

man) had been engaged previously by appellants to collect

gambling debts owing to them by other persons. His fee was

fifty per cent of whatever he collected, and he was directed

to use whatever force was necessary to collect the debt from

Michael.

Berryman immediately sought out Michael. Because they

did not know Michael’s address, Berryman went with Largent

to a Detroit funeral home and by trick persuaded a worker

there to disclose the address of Michael’s son, J. Richard

Michael. Soon thereafter Berryman threatened J. Richard

Michael, by telephone, with violence unless he supplied the

address and telephone number of his father. The son com-

plied.

Having obtained this information, Berryman began to call

Michael and his family on the telephone, sometimes as often

as six times a day, threatening them with violence unless the

gambling debt was paid. Most of these telephone calls were

received by Michael’s wife Grace, as he was not living at

home during part of the time. At one point Berryman and

three associates threw a brick and a molotov cocktail through

the windows of Michael’s home and fired a pistol into his

living room. They also drove a vehicle over his front lawn,

damaging the landscaping.

With the threats continuing, Michael obtained police help.

In the evening of July 22, 1969 Michael and Maurice Foltz,

the Sterling Heights Police Chief, met with Berryman at a

bar to discuss the debt. Foltz, posing as Michael's friend,

told Berryman that he (Foltz) was responsible for part of

the debt. Michael paid Berryman two hundred dollars, partial

payment on the debt. Berryman then threatened them if the

rest was not paid soon.

Without heeding the warning, Michael continued to stall on

payment of the debt. Berryman countered with death threats

against Michael’s family. After forceful pleas from his fam-

ily, Michael finally in early August, 1969, paid Berryman five

4 United States v. Largent, et al. Nos. 76-1285-86

thousand dollars in two twenty-five-hundred-dollar cashier's

checks, at a Detroit race track.

Later in the month appellants and:Michael made a settle-

ment under which Michael paid Berryman’s friend, Geraldine

McNeal, forty-eight hundred dollars in a money order. Thus

Berryman received five thousand dollars for collecting the ten

thousand dollar gambling debt.

II

Appellants contend that they were denied their Sixth

Amendment right to a speedy trial because the Government

had sufficient information by early 1970 to procure an indict-

ment, but it did not obtain the indictment until late 1973, at

which time appellants were arrested.

A similar defense was rejected by the Supreme Court in

United States v. Marion, 404 U.S. 307 (1971). The holding

in Marion was recently reaffirmed by the Supreme Court in

the case of Dillingham v. United States, 423 U.S. 64 (1975).

It is clear that the speedy trial provision of the Sixth Amend-

ment commences to run from the date of the arrest and not

from a date when an agent of the Government may have

learned that a crime was committed. There was no evidence

that the delay was occasioned by any intentional device by

the Government to obtain a tactical advantage over the de-

fendants; nor were the defendants able to prove substantial

prejudice caused by the delay. United States v. Alred, 513

F.2d 330 (6th Cir.), cert. denied, 423 U.S. 828 (1975).

Ill

It is next contended that 18 U.S.C. §§ 891 and 894 are un-

constitutional because they do not require proof of a nexus

between the extortionate means and interstate commerce. It

is urged that the extortionate means in the present cse in-

volved a purely local intrastate activity.

*

Nos. 76-1285-86 United States v. Largent, et all. 5

This contention was rejected in Perez v. United States, 402

U.S. 146 (1971). The Supreme Court held that Congress, in

regulating the class of activities affecting commerce, had the

constitutional power to regulate purely local intrastate activi-

ties. Thus the constitutionality of Sections 891 and 894 was

upheld. United States v. Stephens, 496 F.2d 527, 528 (6th

Cir. 1974), cert. denied sub nom., Marchesani v. United States,

423 U.S. 861 (1975).

The type of loan is inconsequential so long as “the actual

characteristics of the extension of credit, the accrual of a debt,

and the manifestation of coercion to collect that extension are

sufficiently displayed by the evidence presented.” United

States v. Andrino, 501 F.2d 1373, 1377 (9th Cir. 1974).

The evidence in the present case was overwhelming. It was

supplied by the defendants’ hired enforcer Berryman, who

testified for the Government, and also by Michael and by

members of his family.

IV

We find no prejudicial error in the court's instructions to the

jury, or in its use of the disjunctive instead of conjunctive

words.

We are also of the opinion that the court did not err in

admitting evidence of prior similar acts of the defendants who

hired Berryman to commit the acts. Berryman testified that

appellants told him to use whatever force was necessary to

collect the debt.

Evidence of prior misconduct is not admissible to prove

the character of a person or another crime, but rather is ad-

missible to prove motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evidence 404; United States v. Faulkner, 538 F.2d 724,

728 (6th Cir. 1976); United States v. Wiley, 534 F.2d 659,

663 (6th Cir. 1976); United States v. Mahar, 519 F.2d 1272,

1273 (6th Cir.), cert. denied sub nom., Harris v. United States,

6 United States v. Largent, et al. Nos. 76-1285-86

423 U.S. 1020 (1975); and United States v. Ring, 513 F.2d

1001, 1004 (6th Cir. 1975). Generally, this evidence must be

substantially similar and near in time to the offense charged,

must be in issue, and must have more probative value than

prejudicial impact. United States v. Ring, supra, at 1004.

Berryman’s testimony about his past collection activities for

appellants established the fact that these activities were near

in time and were very similar to the activities with which

appellants were charged. It tended to show a consistent pat-

tern of conduct over the entire time. Also, the appellants

intent as to the crimes was in issue at the trial. The prejudice

of admitting this evidence did not outweigh its probative

value for the jury. United States v. Mahar, supra; United

States v. Ring, supra; and United States v. Nemeth, 430 F.2d

704, 705 (6th Cir. 1970). )

Under 18 U.S.C. § 894, in a conspiracy charge evidence of

prior collections is admissible to show some material facts

relating to the conspiracy charged. “It would also be relevant

to show that they were continuing along the same line in their

collections.” United States v. Bonanno, 467 F.2d 14, 17 (9th

Cir. 1972), cert. denied, 410 U.S. 909 (1973). Clearly, the

Government could introduce evidence of Berryman’s prior

collection activities in order to prove the conspiracy charge.

The court gave an appropriate cautionary instruction and

did not err in denying appellants’ motion for a mistrial.

In our opinion the court did not err in admitting into evi-

dence the tapes of recorded telephone conversations between

Michael and Largent, as Michael had consented thereto.

United States v. Franks, 511 F.2d 25, 30, 31 (6th Cir.), cert.

denied, 422 U.S. 1042 (1975), and also denied sub nom.,

Britton v. United States, 422 U.S. 1048 (1975); United States

v. Stephens, 496 F.2d 527, 528 (6th Cir. 1974), cert. denied

sub nom., Marchesani v. United States, 423 U.S. 861 (1975).

In our opinion the indictment was not vague. It contained

all of the elements of the offenses to sufficiently apprise the

defendants of the charge and to provide a basis for a plea of

Nos. 76-1285-86 United States v. Largent, et al. 7

double jeopardy in any subsequent prosecution. Russell v.

United States, 369 U.S. 749, 763-64 (1962); United States v.

Harris, 523 F.2d 172, 174 (6th Cir. 1975).

We do not find that the District Judge abused his discretion

in denying a motion for a bill of particulars and a motion for

discovery. The defendants sought the names of all the Gov-

ernment’s witnesses. The motion was overbroad. There

was no error in denying the motions. United States v. Birm-

ley, 529 F.2d 103, 108 (6th Cir. 1976) (bill of particulars);

United States v. Armes, 470 F.2d 1353, 1355 (6th Cir. 1972),

cert. denied, 410 U.S. 967 (1973) (discovery).

In our opinion the District Judge did not commit prejudicial

error in denying motions for mistrial for alleged prosecutorial

misconduct in asking questions to which objections were sus-

tained and appropriate instructions were given.

At most, any error was harmless beyond a reasonable doubt

in view of the overwhelming evidence offered at the trial and

the cautionary instructions given by the District Court. Chap-

man v. California, 386 U.S. 18, 24 (1967); Rule 52(a) Fed.

R.Crim.P.

Other errors complained of do not merit discussion.

The judgments of conviction are therefore affirmed.