Memorandum — Gilbert v. United States

et. SPRe

SUPREME Count, 4

i”

OCTOBER TERM, 1976

ee

ALVIN OLANDA GILBERT, PETITIONER

v.

UNITED STATES OF AMERICA

= BRIEF POR THE UNITED states —_

a -

DANIEL M. FRIEDMAN,

eneral,

RICHARD L. THORNBURGH,

t G ,

JEROME m, FEIT,

JAMES A, HUNOLT,

Attorneys,

Department of Justice,

Washington. D>. ¢. 20530.

—e~w

ee

IN THE SUPREME COURT OF rTHE UNITED STATES

OCTOBER TERM, 1976

ee

No. 76-5415

ALVIN OLANDA GILBERT, PETITIONER

Vv.

UNITED STATES OF AMERICA

BRIEF FoR THE UNITED STATES

es

OPINION BELOW

The opinion of the court of *ppeals (Pet, App. A) is

reported at 537 F. 2d lig,

JURISDICTION

The Judgment of the court of ®ppeals was entered on

August 16, 1976, On September 8, 1976, Mr. Justice Powell

extended the time for filing a Petition for a writ of

certiorari to and including October 15, 1976, The petition

was filed on September 20, 1976, The jurisdiction of this

Court is invoked under 28 U.S.C, 1254(1).

OQUESTIOns PRESENTED

ey ee

tee

“

-2.

2. Whether theft o¢ 9°0ds from Separate interstate

Shipments forms a Single Offense,

3. Whether the federa) Prosecution of Petitioner was

4. Whether federa) Juries may be drawn from voter

from one interstate Shipment, to be followed by Concurrent terms

Of seven years’ imprisonment On Counts 3 and 4 for theft and

P°SSession of Stolen Jods from ® second interstate Shipment,

The court Of appeals affirmed ber SUEiam (Pet, App. A),

® Shipment Of sheet Steel coils from Ecorse, Michigan, *rrived

by rai) and was Unloaded at the termina) facilities Operated by

Genera) Stevedores, Inc., in Houston, Texas (Tr. 4-6). This

"oe. ..

————

Petitioner was interviewed by William Russ, a Special

(Tr, 4). Two days later,

nes nena ~~ — — 7 nae es she sane reeility After being advised of his rights, Petitioner denied any knowledge

of the theft and denied MOving the Steel on April s, 1975 (Tr.

That stee) was Sonsigned to Carrier Air Conditioning Company

149-152). Russ again interviewed Petitioner on April 22, 1975,

in Tyler, Texas (Tr, 7).

—_—————

"es «- . _—-

1975, a trailer truck was Observed near the Genera) Ste edore “~. been @pproached by a@ person named George Who asked to borrow

Warehouse (Tr. 38), The Gen )

Petitioner's; truck, According to Petitioner, George explained

area Overnight (Tr, 25). No truck had been in the varg earlier

Store some coils, Petitioner Stated that he Moved the coils

that evening (Tr, 35-36),

to Astro Value, for Which he was to receive $300 from George.

98lvanized Steel from Ohio were Missing (Tr, 8-9), a forkli¢e

the coils to a Warehouse where they were to be sold (Tr. 152-165),

Houston (Tr, 65, 76-77, 80). at about 1:00 p.m that day,

Petitioner 4nd Robert Denley, an employee reloaded the stee)

Accordingly, we

do not °ppose a Fant of the Petition ¢o, th

e

2/ We are Sendi

ng Petitioner

@ Copy of Our bries in Sellers,

2/ In addits

On to the Clai

contends, in « ea S Giscussea inet :

, > & exhibit received in this omen Some tsonee

7 eptember 22,

1976, tha

was no Ope :

vw; Atizona, 399 y Pepe te Pprised of his Fights under mj

ce Zid not Sign a Written waiver

Petitioner al

the ey so *Pparently contend °

ie as idence was insufficient to sust S in the exhibit" thas

*Ppeals, t

hat the evidence “@rranted Petitioner’, i

conv ction.

—<.— —

Se

a

eo @ «

&. Petitioner was charged under 18 U.S.C. 659 with

theft of goods from two separate interstate shipments,

Petitioner urges that he cannot be convicted and sentenced on

Separate counts under 18 U.S.C. 659 because the goods at issue

were taken at a Single time, and from a single place. The

question is one of statutory construction; if Congress so

intends, one transaction may constitute multiple offenses,

Ebeling v. Morgen,

taken from same car constitutes multiple offenses), Barringer y,

United States, 399 F. 24 557 (C.A. D.c.), certiorari denied,

393 U.S. 1057 (robbery of two persons at same time constitutes

237 U.S. 625 (cutting of several mail bags

two offenses).

Section 659 Proscribes the stealing of goods “moving as

or which are a Part of or which constitute an interstate or

foreign shipment of freight, express or other Property." While

Congress could have made each transaction involving taking of

goods in interstate commerce a single offense, the language of

indicates that Congress did not do so. Rather, it

the statute

gave maximum Protection to each individual interstate shipment

by making each unauthorized taking of goods which "constitute

an interstate |Shipment, or Part thereof, a Separately punishable

offense. See Qado v. United States, 17) FP. 24 854, 856-858,

Violations of 18 U.S.C. 409 (now 18 U.s.c. 659)), United States

ee

ee a ee

ee ee ee

—

———

- 7-«-

v. DeNormand, 149 F. 24 622, 624-625, (C.A. 2)

326 U.s. 756 (theft at single time Of two trucks

* C€rtiorari denied,

containing inter-

State i

shipments constitutes two Separate offenses under 18 ys c

P

etitioner, accordingly, was properly convicted and

sent

enced for two thefts from two interstate shipments

b.

Petitioner Claims that his Prosecution under federal

law is barred because the acts of

hh ~s

which he Was convicted alco

violated state law (pet. 7a-7b), 2/

now. kes v. S.H. Kress « 2

Adickes e Co., 398 u.s. 144, 147, n, 2, and

; . f

had

been, the federal government would mot be precluded from

Abbate vy. United

Prosecuting Petitioner under federa) law

States, 359 U.S. 187,

_ Petitioner seeks also to invoke the Policy of the

Department of Justice against Prosecu

convicted by the courts of a state

ting individuals already

for crimes involving the same

+ See Hayles Vv. United

States, 419 U.S. ckerso United States

892, A rson v, United States, 419 U.s, 1099

2/ Petitioner al

, SO claime (Pet

in instructin - 8-10) that the trial

of Possession of = ao concerning Scienter necessary ir a ed

Solen goods. at petitioner's segusee Pn a nr a

; , e tria

available for review,

90ods are vacated, this issue is

-_T

e@«

The policy that petitioner cites would not apply in this case

since there has been no state prosecution. Further, that policy

does not create any right in defendant not to be prosecuted;

rather, it is a housekeeping policy which sets out a general

rule to which exceptions can be made in appropriate cases by

the Department. See, United States v. Hutul, 416 F. 2d 607,

626 (C.A. 7), certiorari denied, 396 U.S. 1012.

¢.- Petitioner contends for the first time in this Court

(Pet. 10-12) that the grand and trial juries in his case were

illegally selected because they were drawn from the list of

registered voters. The claim is therefore not properly before

this Court. Adickes v. S.H. Kress & Co., supra. Moreover,

any challenge to the composition of the grand or petit jury

was waived when it was not brought by pretrial motion pursuant

to Rule 12(b) (2), Fed.R.Crim.P.; facts concerning jury selection

were well known and available to petitioner in the exercise of

due diligence before trial. Shotwell Mfg. Co. v. United States,

371 U.S. 341. In any event, petitioner's claim is without merit.

The Jury Selection and Service Act of 1968 allows the use of

voter registration lists in selecting jurors for federal courts,

and provides that use of additicnal sources will be the exception

rather than the rule, 28 U.S.C. 1863(b)(2). The use of voter

registration lists has been repeatedly approved. See, e.g.,

United States v. King, 492 F. 2a 895 (C.A. 8); United States v,

Dellinger, 472 F. 24 340, 364-366 (C.A. 7), certiorari denied,

410 U.S. 970; United States v. Ross, 468 F. 24 1213, 1216 (C.A. 9),

“—

a

certiorari denied, 410 U,s. 989; Simmons Vv. United States, 406

group within the community. =.

CONCLUS Ion

The petition for a writ Of certiorari Should be granted

for the limited Purpose of remanding the case to the @istrict

court for consideration in light of this Court's Gisposition of

Solimine y, United States, Supra. In all other respects, the

Petition shoulda be denied.

DANIEL M, FRIEDMAN,

A Ng Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

FEBRUARY 1977,