Petition — Sagracy v. United States

—

Supreme Court, U. 8.

. FILED 4

FEB 9 NN

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-1 104

MORRIS KENNETH SAGRACY . — Petitioner

versas

UNITED STATES OF AMERICA - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK E. HADDAD, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

7 Counsel for Petitioner

February, 1977

WESTERFIELD-BONTE co., 619 W. KENTUCKY-—?.O. BOX 3251, LOUISVILLE, KY.

INDEX

‘ — —

PAGE

/ 1 2

D ... cante sheen 2

G... . . . 2

Constitutional and Statutory Provisions Involved. 3 4

Statement of the Cases 4 5

*

Reasons for Granting the Writ 5-18

, e cdcncaheen 19

Rana 21-25

A. Sixth Cireuit Court of Appeals Order and

r odds Ce Ub Sees cat ae a) cnee 21-22

B. Sixth Cireuit Court of Appeals Order Denying

rr ccc cccccccccccece 23

C. District Court, Western District of Kentucky,

Judgment and Commitment Order 25

AUTHORITIES

Constitutional Provisions: Page

_ _ United States Constitution Fifth Amendment 3, 19

Statutes:

Federal Statutes: a

F a ee 2

e t ARO 3 4

Cases:

Berger v. United States, 295 U. S. 778. 17

Glasser v. United States, 315 U. S. 59. 13

Johnson v. United States, 318 U. S. 199 15

Michelson v. United States, 335 U. S. 469. 17

United States v. Baum, 482 F. 2d 1325. 9, 10

United States v. Craig, 522 F. 2d 2ꝶ 9. 1 14

United States v. Gebhart, 441 F. 2d 12611 15

United States v. Harris, 391 F. 2d 38 14

United States v. Kelly, 420 F. 2d 2. 9, 10

United States v. Nixon, 418 U. S. 888389: 13

Wardius v. Oregon, 412 U. S. 470 8, 10

Miscellaneous:

Federal Rules of Criminal Procedure:

D SIR i a ara. ina 6

GL Ge Sey Sama are 6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

Morais KENNETH Sageacy - - ~- _ Petitioner

v.

Unrrep States OF AMERICA - - Respondent

PETITION FOR WRIT OF OERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Morris Kennetu Saaracy, respect-

fully prays that a Writ of Certiorari issue to review

the Order and opinion of the United States Court of

Appeals for the Sixth Circuit, entered in this proceed-

ing on December 15, 1976.

OPINIONS BELOW

The Order and opinion of the Court of Appeals,

entered on December 15, 1976 (Appendix A) is re-

ported at F. 2d The Order of the Court of

Appeals overruling Petitioner’s Petition for Rehear-

ing was entered on January 13, 1977 (Appendix B).

2

The Judgment and Commitment Or der of the District

Court for the Western Distriet of Kentucky at Louis-

ville (Appendix C), entered on March 26, 1976, is not

reported.

JURISDICTION |

The Order of the Court of Appeals for the Sixth

Circuit (Appendix A) was entered on December 15,

1976; and a timely Petition for Rehearing was denied

by Order of the Court of Appeals for the Sixth Cir-

cuit (Appendix B) on January 13, 1977. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the admission into evidence of a Gov-

ernment expert’s technical examination which had not

been disclosed prior to trial pursuant to defense motion

for discovery, which surprised the defense when ad-

mitted at trial over objection, should not have been

allowed and constituted unfair trial by ambush.”

2. Whether hearsay evidence pursuant to the co-

conspirator exception should not have been admitted

over objection where the existence of a conspiracy had

not been established and where Petitioner was never

connected with any conspiracy, in derogation of Peti-

tioner’s right to be tried by competent evidence.

3. Whether the prosecution’s improper introduc-

tion of evidence as to an unrelated offense which was

not cured by the trial court’s insufficient admonition

denied Petitioner a fair opportunity to defend against

the single offense charged.

3

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to ihe Constitution of the

United States provides in pertinent part as follows:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

The charging statute in this criminal proceeding is

18 U.S.C. 51952, dealing with interstate travel or trans-

portation in aid of racketeering enterprises, which is

reproduced in pertinent part as follows:

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or for-

eign commerce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful

activity ; or

(2) commit any crime of violence to further

any unlawful activity; or

(3) otherwise promote, manage, establish,

carry on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of any un-

lawful activity,

and thereafter performs or attempts to perform

any of the acts specified in subparagraphs (1),

(2), and (3), shall be fined not more than $10,000

or imprisoned for not more than five years, or both.

(b) As used in this section ‘“‘unlawful activ-

ity’’ means (1) any business enterprise involving

gambling, liquor on which the Federal excise tax

has not been paid, narcotics, or controlled sub-

stances (as defined in section 102(6) of the Con-

4

trolled Substances Act), or prostitution offens

in violation of the laws of the State in which they

are committed or of the United States, or (2) ex-

tortion, bribery, or arson in violation of the laws

of the State in which committed or of the United

States.

STATEMENT OF THE CASE

This is a prosecution under 18 U.S.C. §1952. This

case was tried before a jury in the United States Dis-

trict Court for the Western District of Kentucky in

March, 1976.

A one-count Indictment filed on January 12, 1976,

charged that Petitioner had participated in interstate

travel to violate an Indiana statute prohibiting arson.

The Indictment purported to allege that a truck and

cargo had been burned for the insurance. Petitioner

pleaded not guilty. Trial commenced on March 16,

1976 and lasted for several days, resulting in Peti-

tioner’s conviction.

Petitioner appealed the conviction to the Court of

Appeals for the Sixth Circuit. On appeal, the three

errors which form the basis of this Petition for Writ

of Certiorari were raised. These errors involve pre-

trial disclosure of technical evidence, hearsay evidence

admitted pursuant to the co-conspirator’s exception,

and the introduction of evidence of an unrelated

offense.

The Order and opinion of the Court of Appeals

affirming Petitioner’s conviction is not lengthy (Ap-

5

pendix A). A timely Petition for Rehearing was filed

which the Court of Appeals denied (Appendix B).

Petitioner filed a Motion for Stay of Mandate

Pending Certiorari, but this motion for stay was denied

by indorsement on the Motion by Judge Weick of the

Court of Appeals on January 24, 1977. Upon notice

of this denial, Petitioner applied to this Court’s Justice

Potter Stewart to stay the execution of sentence pend-

ing certiorari.

REASONS FOR GRANTING THIS WRIT

1. The conviction below was unfairly obtained and

should be reversed.

2. This Court now has the opportunity to clarify

the three important evidentiary questions raised by

this Petition.

3. The facts and the law of the present case re-

quire reversal.

A. The trial court prejudicially erred in admit-

ting, over Petitioner’s objection, evidence of a Gov-

ernment expert’s technical examination wihch had not

been disclosed prior to trial pursuant to defense motion

for discovery, which evidence constituted prejudicial

surprise when admitted at trial.

Prior to trial, Petitioner filed a comprehensive mo-

tion for pre-trial discovery, inspection and production

which requested among other things, pre-trial dis-

covery of:

5. The results and laboratory reports of any

and all scientific tests made in connection with this

6

case, including but not limited to arsdn investiga-

tions and/or fingerprints, which are within the

possession, custody, or control of the Government.

22. If, prior to or during trial, the United

States discovers additional evidence or material

_ herein requested, it is hereby requested that the

United States shall promptly notify the Defendant

of the existence of the additional evidence or ma-

terial. [Request for Discovery, filed January 26,

1976. ]

Petitioner requested the aforementioned items pursu-

ant to the Federal Rules of Criminal Procedure, Rules

16(a)(1)(D) and 16(c).

The Government responded on the point here raised

as follows:

5. The Government will disclose to the de-

fendant any results or reports of scientific tests

or experiments, which are within the custody, or

control of the Government, the existence of which

is known, or by the exercise of due diligence may

become known, to the attorney for the Govern-

ment, and which are material to the preparation

of the defense or are intended for use by the Gov-

ernment as evidence in chief at the trial. Rule

16(a)(1)(D).

22. The Government is aware of Rule 16(c),

and will meet its obligations in that regard. [Gov-

ernment’s Reponse to Request for Discovery, filed

February 24, 1976.]

The trial court reified the Government’s duty of pre-

trial disclosure by an order containing the following

language:

7

This Court having found that the discovery

voluntarily agreed to by the Government satisfies

the requirements of Rule 16, Federal Rules of

Criminal Procedure;

Now, therefore, except as to the defendant’s

requests for discovery with which the Government

has agreed to comply, the defendant’s said request

for discovery, inspection and production is hereby

DENIED. [Emphasis added.] [Discovery Order,

filed March 16, 1976.]

Thus, the Government had a duty to disclose the

results of any tests or experiments material to defense

preparation or to be used in the prosecution’s case in

chief. This duty was ignored prior to trial and at trial

when the Government introduced evidence in chief by

a specialist on truck brakes regarding examinations of

the burned truck’s brakes.

When the prosecution began to qualify the witness

Taylor as a heavy equipment expert, opposing counsel

conferred briefly and then approached the bench. At

the bench, the defense objected to introduction of the

results of the expert’s examination of the burned

truck’s brakes.

At this point, the question was squarely before the

trial court: whether the results of a technical examina-

tion which had not been disclosed to defense counsel

prior to trial as ordered could be introduced at trial

over objection, to the surprise of defense counsel. The

trial court ruled the results of the expert witness’ ex-

amination admissible.

Throughout twenty pages of trial transcript, the

expert witness testified regarding his examination of

8

the truck’s brakes. During this testimony, the witness

offered into evidence numerous photographs whick also

had not been disclosed to the defense prior to trial.

Defense counsel articulated his surprise.

I want the Court to know that this is the first

instance that we’ve had any knowledge that this

witness was going to so testify. . . . I'm saying

to you that we are saying that we are surprised

by this fact of this witness going to testify to that

because we haven’t been supplied any discovery

information that was requested. . . I may

have wanted to get a brake expert in here on this

guy, against this guy. [Transcript of Evidence,

hereinafter referred to as T.E., Vol. II, pp. 147-

149.

Indeed, the defense was surprised by this hitherto un-

disclosed expert evidence, and the defense had no op-

portunity to meet it.

On appeal, the Court of Appeals briefly brushed

aside this claim of error as not meriting discussion

(Appendix A).

However, this Court has condemned poker game

secrecy on the part of the ‘tovernment.

The State may not insist that trials be run as a

search for truth’’ so far as defense witnesses

are concerned, while maintaining poker game“

secrecy for its own witnesses. Wardius v. Oregon,

412 U. S. 470, 475 (1973).

The United States Court of Appeals for the Second

Circuit has twice decided cases in which, as in the ease

9

at bar, the trial court was confronted with the hard

choice of interrupting the trial to allow defense dis-

covery and preparation or denying to the defense a

reasonable opportunity to discover the substantial im-

pact of evidence which should have been disclosed prior

to trial.

The Second Circuit twice decided to resolve the

issue in favor of discovery.

[Wie would rather give the defendant the benefit

of the doubt than let the Government reap even a

slight possibility of benefit from what we regard

as a lack of candor unworthy of a prosecutor.

United States v. Baum, 482 F. 2d 1325, 1332 (2nd

Cir. 1973).

The Second Circuit expanded its reasoning that trial

by ambush with expert witnesses is an unfair tactic.

[Fairness requires that adequate notice be given

the defense to check the findings and conclusions

of the government’s experts. [T]he failure

to disclose the tests well in advance of trial faced

the trial judge with an impossible choice, to sanc-

tion a month's interruption of a jury trial or

deprive the defense of a fair opportunity to meet

this part of the government’s evidence.

* 9 *

The course of the government smacks too much of

a trial by ambush, in violation of the spirit of the

rules. A new trial is required with a fair op-

portunity for the defense to run its own . .

tests. United States v. Kelly, 420 F. 2d 26, 29

(2nd Cir. 1969).

——

10

In the present proceeding, the introduction of sub-

stantial expert evidence which had not been the subject

of pre-trial discovery prejudicially deprived Petitioner

of a fair opportunity to meet the prosecution’s case in

chief.

In light of this Court’s holding in Wardius v.

Oregon, supra, it is respectfully submitted that the

Second Cireuit's reasoning in Baum, supra, and Kelly,

supra, should be applied in the present case so that.

Petitioner’s unfair conviction below may be reversed.

B. The trial court prejudicially erred in admitting,

over Petitioner’s objection, hearsay evidence pursuant

to the co-conspirator exception to the hearsay rule

where the existence of a conspiracy had not been estab-

lished and where Petitioner was never connected with

any conspiracy.

During the testimony of the prosecution witnesses

Aneil and Froman, much hearsay testimony was pre-

sented to the jury.

The prosecution witness Terry Ancil testified, and

much of his testimony concerned the hearsay conversa-

tion of one deceased Damon Keeton. The witness Ancil

testified as to the deceased Keeton’s conversation.

Well, he told me I would never receive the

merchandise. And I asked him what he was going

—what was going to happen, and they said they

was going to burn it. [T.E., Vol. II, p. 43.]

He just said there was going to be a fire. He never

said about, you know, nothing else. [T.E., Vol. IT,

p. 56.]

11

In all, the prosecution witness Ancil’s testimony

covered twenty-seven (27) pages of trial transcript.

Ancil’s testimony regarding the deceased Keeton’s

conversation covers nine (9) pages of the trial tran-

script [T. E., Vol. II, pp. 41-45, 55-58], an excerpt of

which is quoted above. The testimony in the nine pages

of trial transcript was unreliable hearsay not subject

to confrontation, prejudicial to Petitioner, and should

not have been presented to the jury.

Such unreliable evidence tended to show some sort

of plan or conspiracy between the witness Ancil and

the deceased Keeton. Because only Petitioner was on

trial, the jury may have improperly connected Peti-

tioner with such a plan or conspiracy.

In fact, Petitioner definitely was not connected with

the alleged conversation attributed to the deceased

Keeton. The witness Ancil testified:

Q. All right. Now so there won’t be any mis-

take about it, you don’t know Kenneth Sagracy, ©

this man sitting here at the table, do you?

A. No, sir.

Q. He wasn’t with these people that day?

A. No, sir.

Q. You’ve never had any dealings or any

contact with him at all?

A. No, sir.

Q. Or any conversation?

A. No, sir. [T. E., Vol. II. pp. 54-55.]

After the prosecution witness Ancil testified, Peti-

tioner’s same objection to hearsay was overruled re-

garding the testimony of the prosecution witness

12

Charles Froman, who was also expected to testify as to

the deceased Keeton’s conversations. In fourteen (14)

trial transcript pages, the witness Froman’s testimony

indicated that Keeton and Ancil had conspired to burn

a truck cargo for the insurance. [T.E., Vol. II, pp.

66-79. ]

Again, Petitioner definitely was not connected with

the alleged conversations attributed to Keeton.

Q. All right. Now, so there will be no mis-

understanding about it, you at no time saw Kenneth

Sagracy anywhere around, did you?

A. No, sir.

Q. You don’t even know him, do you?

A. No.

Q. You never had any discussiens or conver-

sations or anything with him, did you?

A. No. [T.E., Vol. II. p. 76.]

Thus, much hearsay evidence regarding conversations

of the deceased Keeton was erroneously introduced at

trial where 1) no conspiracy had been proven and 2)

Petitioner definitely was not connected with any con-

spiracy. No co-conspirator exception to the hearsay

exclusion was justified.

The co-conspirator exception to the hearsay rule

does not apply unless independent evidence establishes

prima facie an illegal joint venture or conspiracy.

Declarations by one defendant may also be admis-

sible against other defendants upon a sufficient

showing, by independent evidence, of a conspiracy

among one or more other defendants and the de-

—

13

clarant and if the declarations at issue were in fur-

therance of that conspiracy. The same is true of

declarations of coconspirators who are not defend-

ants in the case on trial. United States v. Nixon,

418 U. S. 683, 701 (1974).

In the present case, no such independent evidence of

a conspiracy’’ involving the Petitioner had been offered

as a requisite basis for the hearsay evidence elicited

during the testimony of prosecution witnesses Ancil

and Froman.

Also, the co-conspirator exception to the hearsay

rule does not apply unless a defendant is connected by

independent evidence with a demonstrated conspiracy.

Under the co-conspirator exception to the hear-

say rule, accounts of extrajudicial statements may

be admitted if it is established by evidence other

than hearsay that the defendant was involved in a

criminal conspiracy with the declarant. .. .

[Numerous citations omitted.] United States v.

Craig, 522 F. 2d 29, 31 (6th Cir. 1975).

If a defendant is not connected with a demonstrated

conspiracy, then the danger of conviction based on un-

trustworthy evidence increases. As this Court has

warned, absent independent evidence that a defendant

is connected with the conspiracy,

hearsay would lift itself by its own boot straps to

the level of competent evidence. Glasser v. United

States, 315 U. S. 59, 74-75 (1942).

In the present case, no independent evidence connect-

ing Petitioner with an alleged conspiracy was ever

n

14

introduced at any time, so that a requisite basis was

never established to justify the introduction of the hear-

say evidence elicited during the testimony of prosecu-

tion witnesses Ancil and Froman.

On appeal, the Court of Appeals ruled that the con-

spiracy alleged had been established by independent

evidence and that whether the conspiracy was estab-

lished by independent evidence prior to or subsequent

to the admission of hearsay declarations was ‘‘within

the sound discretion of the trial judge.“

We find no error in the admission of testimony

of a co-conspirator. It was not necessary to estab-

lish the conspiracy before admission of such testi-

mony ; but the conspiracy had to be established by

independent evidence at the trial. We are of the

opinion that there was ample proof of conspiracy.

United States v. Craig, 522 F. 2d 29, 31 (6th Cir.

1975). (Appendix A.)

The order of proof in a conspiracy case is

within the sound discretion of the trial judge.

United States v. Harris, 391 F. 2d 348, 350 (6th

Cir.), cert. denied, 393 U. S. 874 (1968). (Appen-

dix A.)

However, the Court of Appeals did not refer in its

opinion to the failure of the trial court to require in-

dependent evidence connecting Petitioner to any con-

spiracy.

In this Petition for Certiorari, Petitioner submits

that the trial court’s failure to require independent

evidence of a conspiracy prior to introducing hearsay

declarations and to require independent evidence con-

15

necting Petitioner to the alleged conspiracy at any

time as a basis for introducing hearsay declarations

amounted to prejudicial error. The result was Peti-

tioner’s unfair conviction based in significant part

upon untrustworthy evidence. :

C. The trial court prejudicially erred in denying

Petitioner’s motion for mistrial where the prosecution

improperly referred to an unrelated offense and the

trial court’s admonition was insufficient to alleviate

the unfair and prejudicial effects of the prosecution’s

reference.

As a general rule, evidence of the commission of

other crimes is incompetent and inadmissible for the

purpose of showing the commission of the crime

charged. Johnson v. United States, 318 U. S. 189, 195

(1943) ; United States v. Gebhart, 441 F. 2d 1261, 1264

(6th Cir. 1971).

This rule is based on the common-sense proposition

that such evidence draws the attention of the jury

away from the real issues and injects an additional

and confusing burden upon the defense. Johnson

v. United States, 356 F. 2d 680, 684 (8th Cir. 1966),

Cert. denied, 385 U. S. 857.

The trial below involved the alleged arson by Peti-

tioner of a truckload of goods. During the testimony

of defense witness Reynolds regarding the purchase

of a subsequent and whollv unrelated truckload of

goods, the prosecution generated the following col-

loquy :

Q. And what happened to those searves? Did

they ever reach vou?

16

A. They never got to me.

Q. What happened to them?

A. They just never reached me.

Q. Well, isn’t it true that they burned up in

a truck in Lafayette, Indiana? [T.E., Vol. IV,

p. 123.] |

Petitioner’s counsel quickly objected to the prosecu-

tion’s attempt to draw the jury’s attention away from

the issue at trial.

The prosecution, still in the presence of the jury,

continued to improperly prejudice Petitioner’s defense.

Mr. Pope: Your Honor, I think that this fits

into the overall theory. . . . [T.E., Vol. IV, p.

123. ]

The problem with evidence as to an overall theory of

multiple crimes is that Petitioner was only charged

with a single crime. A conference at the bench took

place after which the trial court ambiguously admon-

ished the jury as follows:

Now, ladies and gentlemen, you will disregard

entirely from your mind—don’t consider it any

further—any reference or comments or statements

affecting an entirely independent transaction in-

volving the same type or a portion of the same

type of merchandise by this defendant at a later

date. It has nothing to do with this transaction

that we have on trial here, so you will disregard

that from your mind. [Emphasis added.] [T.E.,

Vol. IV, p. 125.]

17

Petitioner respectfully submits that this admonition

failed to separate the unrelated evidence from the issue

on trial. The words, transaction involving the same

type or a portion of the same type of merchandise by

this defendant at a later date,’’ unnecessarily appear

in the admonition and prejudicially tend to link the

unrelated incident to Petitioner and the offense on

trial attributed to Petitioner.

The prosecution’s improper injection into evidence

of the commission of an unrelated crime and the trial

court’s ineffective admonition caused the defense to

move for a mistrial. Mistrial was denied. |

This Court has recognized that the prosecution may

not introduce evidence of specific criminal acts not

related to the issue at trial. Such evidence, this Court

has reasoned,

is said to weigh too much with the jury and to so

overpersuade them as to prejudge one with a bad

general record and deny him a fair opportunity to

defend against a particular charge. Michelson v.

United States, 335 U. 8. 469, 475-476 (1948).

In the leading case of Berger v. United States, 295

U. S. 78 (1935), this Court first articulated the widely

accepted standard,

The United States Attorney . . may strike

hard blows, [but] he is not at liberty to strike foul

ones. It is as much his duty to refrain from im-

proper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to

bring about a just one. Berger v. United St ‘es,

supra, 295 U. S. at 88.

18

The record at bar shows that the prosecution improp-

erly introduced into evidence another offense unrelated

to the charge at trial and the idea of an ‘‘overall the-

ory“ oi multiple acts. The record at bar also shows

the trial court’s ineffective admonition which tended

more to connect Petitioner with the unrelated offense

and overall theory’’ than to divorce Petitioner from

the objectionable evidence.

On appeal, the Court of Appeals ruled that the pros-

ecution’s cross-examination of the witness Reynolds as

to an unrelated offense was improper,“ but was not

prejudicial for two reasons. It was not prejudicial

because of the trial court’s curative instruction, and

it was in any event harmless beyond a reasonable

doubt because of the overwhelming evidence of de-

fendant’s guilt.”” (Appendix A.)

However, Petitioner believes the Court of Appeals

has failed to correctly gauge the impact of this error

which was prejudicially fatal to the defense. Because

the trial court’s admonition was insufficient to alle-

viate the unfair and prejudicial effects of the prose-

cutor’s improper evidence, it is respectfully submitted

that reversible error occurred so that a writ of cer-

tiorari should issue to review the proceedings below.

19

CONCLUSION

The decision of the Court of Appeals failed to ac-

curately gauge the prejudicial impact of the eviden-

tiary errors set forth on appeal and in this Petition.

The effect of these errors was to convict Petitioner by

surprise, by hearsay evidence, and by irrelevant evi-

dence. In each instance, Petitioner’s defense against

the alleged charge was prejudicially obstructed. The

denial of Petitioner’s right to defend against the al-

leged charge and to be tried on competent, relevant

evidence was fundamental injustice, amounting to a

denial of Petitioner’s Fifth Amendment right to due

process of law. Only this Court remains to correct

that fundamental injustice. The present Petition for

Writ of Certiorari should therefore be granted.

Respectfully submitted,

Frank E. Happap, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

Counsel for Petitioner

APPENDIX

21

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1867

Untrep States or America, - - Plaintiff-Appellee

v.

Morris KennetH Sacracy, - Defendant-A ppellant

ORDER—Filed December 15, 1976

Before Weick, Epwarps and Peck, Circuit Judges.

This is a direct appeal from a jury conviction for inter-

state travel to commit arson, in violation of 18 U.S.C. 4 1952.

Upon consideration of the various claims of error we are

of the opinion that the District Court did not abuse its

discretion in denying the motion for a bill of particulars.

We find no error in the admission of testimony of a

co-conspirator. It was not necessary to establish the con-

spiracy before admission of such testimony; but the con-

spiracy had to be established by independent evidence at the

trial. We are of the opinion that there was ample proof of

conspiracy. United States v. Craig, 522 F. 2d 29, 31 (6th

Cir. 1975).

The order of proof in a conspiracy case is within the

sound discretion of the trial judge. United States v. Harris,

391 F. 2d 348, 350 (6th Cir.), cert. denied, 393 U. S. 874

(1968).

22

Prosecutorial misconduct is claimed in asking a question

on cross-examination of the defense witness Reynolds, as

to an unrelated offense committed by him. Objection to this

question was sustained by the Court which gave a curative

instruction. In our opinion the question, while improper,

was not prejudicial, because of the curative instruction. In

any event the error was harmless beyond a reasonable doubt

because of the overwhelming evidence of defendant’s guilt.

Other claims of error have been considered but do not

merit discussion.

The judgment of the District Court is affirmed.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1867

Unitev Staves or America, - - Plaintiff-Appellee

v.

- Morris Kennetn Sacracy, . Defendant-A ppellant

ORDER—Filed January 13, 1977

Before Weick, Epwarps and Pzcr., Circuit Judges.

Upon consideration, we are of the opinion that the peti-

tion for rehearing is not well taken and it is hereby denied.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

‘

r € |.” {United s tes District Court:

— ath enn ipa te.tee e DOCKET NO. =

In the presence of the attorney for the government WILLIAM POPE MONTH DAY 4

the defendant appeared in person on this date 3 22 76

COUNSEL t__.J WITHOUT COUNSEL However the court advised defendant of right to counsel and asked whether defendant desired to

have counsel appointed by the court and the defendant thereupon waived assistance of counsel.

_X)witncounse. t«__FRANK_E. HADDAD, R., Employed oo ...d j

\ (Name of counsel)

_X_) GUILTY, and the court being satisfied at _|___)NOLOCONTENDERE, Nor GUILTY

PLEA there is a factual basis for the plea,

Nor GUILTY. Defendant is discharged

A Guitty.BY A JURY

Defendant has becn convicted as charged of the offense(s) of

a There being a fn / verdict of

FINDING & .

JYOGMENT traveling in Interstate Commerce with the intent —— —

to promote unlawful activity (arson) in violation of

the laws of Indiana and in violation of Title 18,

Sections 2 and 1952, United States Code, as charged in

the one count of the Indictment.

— PRESENTENCE REPORT WAS REVIEWED BY THE COURT.

A rue court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary

was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant is

hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of hid

>

~~

*

SENTENCE THREE (3) YEARS as to the single count of the 8

on > Indictment.

PROBATION bd

2

ORDER .

UPON MOTION OF THE DEFENDANT, BY COUNSEL, AND THE UNITED STATES HAVING

OBJECTED THERETO, IT IS ORDERED AND ADJUDGED that the appearance bond

executed herein by the defendant be converted to an appeal bond pending

final determination by the appeal Court in this case. The defendant shall

continue under the same terms and conditions as previously set forth.

ADDITIONAL

orm in addition to the special conditions of imposed above, it is hereby ordered that the conditions of probation set o on the

con ons reverse side of this judgment be im . The Court may change the conditions of probation, re ce of extend the period of probation, and at

OF any time during the probation period or within a maximum probation period of five years permitted by law, may issue a warrant and revoke

PROBATION probation for a violation occurring during the probation period.

* > The court orders commitment to the custody of the Attorney General and recommends, 8

it is ordered that the Clerk deliver

a certified copy of this judgment

COMMITMENT and commitment to the U.S. Mar-

1 shal or other qualified officer.

5 :

ENTERED

SIGNED BY

MAR 26 1976

4a. , ct

— U.S. District Judge

2 Us. Magistrate

u 88

March 22, 1281