Opposition — United States v. Grayson

RECEIVED

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO, 76-1572

UNITED STATES OF AMERICA, PETITIONER

vs.

TED R. GRAYSON

ON PETITION FOR A WRIT OF CERTIORARI TOTHE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

John M. Humphrey, Esquire

23 West Third Street

Williamsport, PA 17701

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INDEX

Page

Opinions below. „„ „„ l

Jurisdictiooonn ä

Question Presented -G „46460 1

eaten ̃ꝶ „„ 2

Argume n 6556 66546 4

Senecas 8

CITATIONS

Cases:

Hess v. U. S., 496 F. 2d 936, 939 (C. A. g)))))ũ: 4, 5,6

Humes v. United States, 186 F. 2d 875 (C. A. 1D0II . 5

Monrosa v. Carbon Black, Inc., 359 U.S. 180 (1959)... ccc cee eeeccess 8

Scott v. United States, 419 F. 2d 264, 268-269 (C. A. D. C.) 4

United States v. Cluchette, 465 F. 2d 749, 754-755 (C. A. 9 4,5

United States v. Hendrix, 505 F. 2d 1233 (C. A. 2),

certiorari denied, 423 U.S. 897..... — TTT Te 4,6

United States v. Levine, 372 F. 2d 70, 74 (C. A. 7),

certiorari denied, 388 U.S. Tin .6n006060600660600000066 ne „ „ „ „ 5

United States v. Moore, 484, F. 2d 1284, 1287 (C. A. .. 4,

United States v. Nunn, 525 F. 2d 958 (C. A. )) +

United States v. Wallace, 418 F. 2d 876, 878 (C. A. 6),

certiorari denied, 397 U.S. eee esse GO

Statutes:

18 U.S.C. DD „ „ „ „„ 3

she

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76-1572

UNITED STATES OF AMERICA, PETITIONER

vs.

TED R. GRAYSON

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The original judgment order of the panel (App. D, of Petition, 35a-

36a) is not reported. The opinion of the panel on rehearing (App. A, of

Petition, la-3la) is reported at 550 F. 2d 103.

JURISDICTION

The jurisdictional requisites are adequately set forth in the Petition.

QUESTION PRESENTED

The question presented is adequately set forth in the Petition.

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STATEMENT

Respondent has no disagreement with the Statement in the Petition.

However, it is necessary to set forth certain additional facts concerning

the trial in this case.

At trial, Respondent admitted walking off of the Allenwood Federal

Camp on October 11, 1975, and admitted being apprehended two days later

at his legal residence in New York City. The Respondent testified that he

left Allenwood because of a well-founded fear of death or serious bodily

harm. Specifically, Respondent testified that he had been gambling and

became indebted to an inmate at Allenwood who began pressuring him for

money. On October 11, 1977, this other inmate threatened the Respondent

[ with a board which had a nail in the end of it. As a result of these threats

and his belief that his life was in danger, Respondent fled the Allenwood

Prison Camp that evening, October 11, 1977. See Transcript at p. p 4--00.

Apparently, this defense was the complete fabrication without the slightest

merit whatsoever," referred to by the Judge at sentencing.

On the issue of whether the Respondent could have taken steps other

that he did not report the threats against him to the Allenwood authorities

because there were no security facilities at Allenwood and because he was

afraid that as an "informer" his safety would be even more injeoparay.

See generally, Transcript at p.p. 76-77. Respondent further testified that

2

than leaving Allenwood to escape the alleged coercion and duress, he testified

— — —

upon leaving Allenwood he went to New York rather than turning himself in

at the Lewisburg Penitentiary because he knew that he would be apprehended

at his residence in New York, and because he was afraid that he would be

badly treated by the Lewisburg authorities because of his escapee status.

See generally, Transcript at p. 85.

In his charge to the jury, the trial judge listed the four elements of

the crime of escape under 18 U.S.C. Section 75l(a), and stated to tiie jury:

"There is no dispute in this case with respect to the first

three elements. The Defendant admits that he was lawfully

confined and that he left the Allenwood Prison Camp without

permission. However the last element of the offense of escape

with intent to avoid confinement is in dispute.

In order ta sustain its burden of proof in this case, the

Government must prove beyond a reasonable doubt that the

Defendant voluntarily departed from custody with an intent to

avoid confinement.

The Defendant has introduced evidence suggesting that any

illegal acts which he may have committed were the result of

coercion or compulsion or duress. Now compulsion or coercion

or duress may provide a legal excuse for the crime charged in the

indictment. In order, however, to provide a legal excuse for any

criminal conduct, the compulsion must be present and immediate

and of such a nature as to induce a well-founded fear of impending

death or serious bodily injury. And there must be no reasonable

opportunity to avoid compulsion without committing the crime.

If the evidence in the case should leave you with a reasonable

doubt whether at the time and place of the alleged offense the Def-

endant Grayson acted willfully and voluntarily--that is to say

whether the accused was forced in effect to commit the crime charged

in the indictment by coercion or compulsion as just explained

then you should acquit the accused.

Whether the Defendant had a reasonable opportunity to avoid

the coercion or compulsion or duress without leaving Allenwood

Prison Camp depends upon whether he acted as anordinary

man would have acted under all the same circumstances; that is

whether an ordinary man would have felt it necessary to leave the

Allenwood Prison Camp when faced with the same degree of

compulsion, coercion or duress as the Defendant was faced with

in this case.

If you find that the Defendant was compelled to leave the

Allenwood Federal Prison Camp but that after he left, he

voluntarily decided to remain at large, you may find the Defendant

guilty of escape. "' (Emphasis added), Transcript at p. p. 223-225,

ARGUMENT

In urging the Court to grant the Petition, Petitioner relies on two

separate considerations as set forth in Supreme Court Rules 19; (1) that

the issue here presented is a very important question of federal law since

sentencing judges must know whether they may take into account in imposing

sentence a belief that the Defendant gave false testimony during the trial,

and (2) that there is a conflict between the Circuit Courts of Appeals on this

issue.

Petitioner argues that the Third Circuit's decision in the instant

case is in accord only with Scott v. United States, 419 F. 2d 264, 268-269

(C. A. D. C.), and that tne following eight decisions are to the contrary;

United States v. Nunn, 525 F. 2d 958 (C. A. 5); United States v. Hendrix,

505 F. 2d 1233 (C. A. 2), certiorari denied, 423 U.S. 897; Hess v. United

States, 496 F. 2d 936, 939 (C. A. 8); United States v. Moore, 484 F. 2d

1284, 1287 (C. A. 4); United States v. Cluchette, 465 F. 2d 749, 754-755

(C. A. 9); United States v. Wallace, 418 F. 2d 876, 878 (C. A. 6), certiorari |

—— —

denied, 397 U.S. 955; United States v. Levine, 372 F. 2d 70, 74 C. A. 7),

certiorari denied, 388 U.S. 916; Humes v. United States, 186 F. 2d 875

(C. A. 10). a

In several of these cases, e.g., Cluchette, Wallace, Levine, and

Humes, supra, the issue of whether the sentencing judge can consider the

Defendant's alleged perjury at trial was decided in passing and with very

little discussion or reasoning. In two of the cases, Hess and Moore, supra,

the courts' decision were somewhat equivocal. While these decisions held

that in the particular cases before the courts the judge did not err in

considering the Defendant's alleged perjury, the courts went on to state

that in the usual case it is better for the trial judge who suspects perjury

to request an investigation and that thereafter, if the facts warrant, the

United States Attorney may initiate prosecution for the separate and cistinct

crise. See, e. g. . United States v. Moore, supra, 484 F. 2d at 1288.

Although the decisions contrary to the Third Circuit's decision in tre

case at bar are not as overwhelming as a reading of the Petition would indicat

Respondent admits that there is a conflict between the circuits on the question

here presented. Furthermore, Respondent admits that the issue in this

case is an important question of federal law. Nevertheless, Respondent™

urges the Court to deny the Petition for the reason that this important questior

of federal law is clouded by the particular facts in this case.

Most of the Circuit Court cases cited by the Petition as holding that

a sentencing judge may consider the alleged perjury of the Defendant do not

discuss the alleged perjured testimony. However, those cases which do

discuss the perjury would indicate that the Defendant's testimony was in-

consistent with the jury's finding of guilt. Thus, in United States v. Hendrix,

505 F. 2d 1233, 1237 (2d Cir. 1974), it is pointed out;

"This was a case where the jury could not have convicted

without being persuaded beyond a reasonable doubt that the

appellant had lied deliberately and willfully. The trial judge

concurred in that unanimous persuasion, "

See also, Hess v. United States, supra; United States v. Wallace, supra.

In the case at bar, Judge Rosenn's dissenting opinion firmly relied upon sucn

a requirement;

"As an additional safeguard to the defendant, I would require

that the falsity of the defendant's testimony be necessarily

established by the finding of guilt. There must be no possibility

that the substantive law applied was such that the factfinder couid

have believed the defendant's testimony at the same time as it

found him guilty. H, for example, a person charged with burglary

testified that he burglarized out of hunger, the substantive criminal

law is such that the factfinder could find the defendant guilty even

as it finds his testimony wholly truthful. On the other hand, when a

defendant testifies to an alibi, a finding of guilt would necessarily

rest on a finding that his testimony was false. This additional

safeguard thus minimizes the possibility of abuse. A review of the

record in this case reveals that Judge Muir applied both these

safeguards."

See Petition at App. A, p. 3la.

Although Judge Rosenn apparently found that the Respondent's testimon

was inconsistent with the jury's finding of guilt, it is respectfully submitted

that a review of the facts in this case would indicate the contrary. As set

forth at pages 2 and 3 of this Brief, supra, the Respondent's testimony went

to the element of intent and raised the defense of coercion and duress. By

Judge Muir's charge to the jury, supra, at p.p. 3-4, the jury was instructed |

that there must be no reasonable opportunity to avoid compulsion without

committing the crime" and was further instructed to find the Respondent

guilty if the jury concluded that "the Defendant was compelled to leave the

Allenwood Federal Prison Camp but that after he left, he voluntarily decided

to remain at large... Thus, itis entirely within the relm of possibility

that the jury believed Respondent's testimony that he left Allenwood because

of the threats against him, but nevertheless found him guilty because the

jury felt he should have sought protection from the Allenwood authorities

rather than leaving the camp. Alternatively, the jury could have felt that

the Respondent's leaving the camp because of the threats was reasonable,

but that he voluntarily decided to remain at large since he went to his

apartment in New York City for two days rather than immediately turning

himself in to the proper authorities.

It is quite clear, then, that the Respondent's testimony at trial was

not necessarily inconsistent with the jury's finding of guilt. Unlike the other

cases which have been decided by other courts, this case presents a very

significant factual question as to whether the Respondent in fact committed

perjury and the trial judges basis for believing that he did. It is submitted

that this situation clouds the question which Petitioner requests this Court

to resolve. The resolution of this important question of federal law should

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await the time when it is posed more clearly and without the troublesome

factual circumstances presented in the case at bar. This Court has denied

or withdrawn certiorari where an important federal issue, upon which there

was a conflict in the circuits, was not clearly presented in the case before

it. See, The Monrosa v. Carbon Black, Inc., 359 U.S. 180 (1959). As

indicated by the number of decisions in the Circuit Courts of Appeals which

have considered the question of whether a sentencing judge may consider

the alleged perjury of the Defendant, this issue is very likely to be presented

again soon, and presented without the difficult factual circumstances present

in the case at bar.

CONCLUSION

For the foregoing reasons it is -espectfully submitted that this

*

Petition for a Writ of Certiorari be denied.

Respectful submitted,

\ . van

\ \\ \ \

1 au —

Johs M. Humphrey, Esquire ©

Attorney for Respondent

IN THE SUPREME COURT OF THE UNITED STATES

RUFUS WESLEY,

Petitioner , n

against

UNITED STATES OF AMERICA,

Res ponden Ciwsnxnax

' AFFIDAVIT OF SERVICE

© i- Tg Pore Ma —— nen- Ine Law Bane

BY MAIL

STATE OF NEW YORK, COUNTY OF NEW YORK

The undersigned being duly sworn, deposes E

De ponent is not a party to the action, is over 18 years of age and chides 4 101 nest 80th Street,

New York, N.Y, 10024.

That on July 28, 1977 deponent served the annexed Motion for

Leave to Proceed in Forma Pauperis and Affidavit

on the Solicitor General, Dept. of Justice

attorneyés) for Res

pondent

in this action a Dept, of Justice,Constitution Ave. & 10 St.N.W. Mash. D. C. 20530

the address designated by said attorney@s) for that purpose by depositing a ‘rue copy of same enclosed

in a postpaid properly addressed wrapper, in—a post ofice—official depository under the exclusive care

and custody of the United States Postal Service within the Seate of New York.

Sworn to before me this 28th —

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

RUFUS WESLEY,

— — —

rat it lber,

-against- )

UNITED STATES OF AMERICA, .

>

—

STATE OF NEW YORK )

2 $8.3

COUNTY OF NEW YORK )

ELEANOR JACKSON PIEL, being duly sworn, deposes and

says:

1. I am the attorney for Rufus Wesley, the petitioner

herein, and have served as his attorney pursuant to Court appoint-

ment under the Criminal Justice Act by reason of

indigency.

2. Petitioner is currently serving an

prison term in Atlanta, Georgia.

3. Because of poverty he is unable to

of this proceeding or to give security therefor.

4. Petitioner and his counsel believe

entitled to the redress he seeks.

petitioner's

eight year

pay the costs

that he is

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

RUFUS WESLEY,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Rufus Wesley, who is now held in a United

States penitentiary at Atlanta, Georgia, asks leave to file

the attached Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit without prepay-

ment of costs and to proceed in forma pauperis. The affidavit

of Eleanor Jackson Piel, attorney for petitioner, in support

of the petition, is attached hereto.

New York 10036

J Mme Ha LL ae ee

United States Court for the Southern District of New York:

(1) He was denied the right to exercise a per-

emptory challenge to any alternate jurorand two

such alternates participated in the deliberations;

(2) He was arrested by federal authorities

in another jurisdiction and was absent involun-

tarily for three days of trial;

(3) During the jury deliberations a juror con-

municated with the trial judge out of the presence

of petitioner and his counsel and a discussion was

had concerning that jurors withdrawal from the

deliberation.

6. The foregoing three issues involve 4 violation

of federal constitutional rights basic to due process of law.

Sworn to before me this

26th July, „1977.

4 —

Notary edle a_i,

n

Oven low York .ounty

Commision Late March 30. 1974