Petition — Harris v. United States

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

Sup ome Court, U. Se

FILED jk

JUN 25 1STT

MICHAEL

RODAK, JR., CLERK

UNITED STATES SUPREME COURT

( UNITED STATES OF AMERICA

—_____Versts >

ail MORRIS HARRIS

C W6-1857

NUMBER

PETITION FOR CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

RALPH BREWER

Suite 210, 200 Government

Baton Rouge, Louisiana

70802

JOSEPH R. RAGGIO

DENNIS R. WHALEN

201 Napoleon Street

Baton Rouge, Louisiana

70802

(Of Counsel)

ira > r

~ r *

a fj eer _ 7

“se J 4 |

Y > . a - - a

— = : ; |

» * 7 ; . . 7

INDEX

Reports of opinion below.

Statement of jurisdictional

grounds.

Date of judgment to be

reviewed.

Information on rehearing.

Statutory jurisdiction.

Question for review.

Constitutional provisions

and statutes invoked.

Table of case.

Statement of the case.

Argument.

Conclusion.

Page

REPORTS OF OPINION BELOW

The decision of the Court of

Appeal, Fifth Circuit, is reported at

F.2d , number 76-4051.

STATEMENT OF JURISDICTIONAL GROUNDS

. This court is authorized to review

the judgment in question by Writ of

Certiorari. U.S. Code, Title 28,

Section 12541).

TABLE OF CASES

1. 18 0U.S.C., 8922(a)(1).

26 Federal Rules of Evidence, Rule

803(10).

36 U.S. vs. Dota, 482 F.2d 1005 (10th

Cir.) cert. denied, 414 U.S. 1071,

94 S.Ct. 583, 38 L.Ed. 2d 477

(1973)

QUESTIONS PRESENTED .FOR REVIEW

May a conviction stand a the

only evidence of an essential element

of the crime is admitted in evidence

over objection and in violation of

Rule 803(10), Federal Rules of

Evidence?

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. 18 U.S.C. $922(a)(1)

8922. Unlawful acts

"(a) It shall be untawful-

(1) for any person, except a

licensed importer, licensed manu-

facturer, or licensed dealer, to

engage in the business of import-

ing, manufacturing, or dealing in

firearms or ammunition, or in

the course of such business to

ship, transport, or receive any

firearm or ammunition in interstate

or foreign commerce;"

2. Federal Rules of Evidence, 803(10)

"Rule 803. Hearsay Exceptions;

Availability of Declarant

Immaterial |

The following are not excluded

by the hearsay rule, even

though the declarant is avail-

able as a witness:

(10) Absence of public record

or entry. To prove the absence

of a record, report, statement,

or data compilation, in any

form, or the nonoccurrence of

nonexistence of a matter of

which a record, report, state-

ment, or date compilation, in

any form, was regularly made

and preserved by a public

office or agency, evidence in

the form of a certification

in accordance with rule 902,

or testimony, that diligent

search failed to disclose the

record, report, statement,

or data compilation, or entry."

STATEMENT OF THE CASE

Morris Harris was charged by indict-

ment with being a dealer in firearms

without being licensed to do so. He

was tried on August 13, 1976. In

order to prove an essential element of

the offense charged in the indictment,

defendant's not having a license to

deal in firearms, the Government offered

a certificate of an agent of the Alcohol,

Tobacco and Firearms Division of the

Treasury Department. The agent did not

claim in the certificate that "a ~

diligent search" had been made for the

certificate. Rule 803(10) of the Fed-

eral Rules of Evidence is predicted

upon a "diligent search" for a record

being necessary to prove non-existence

of the record. Defendant objected to

the admission of the certificate for

the express reason that it did not

comply with Rule 803(10) and was thus

inadmissible hearsay. The trial Court

overruled the objection, defendant was

convicted, the conviction affirmed, and

rehearing denied. A copy of the Court

of Appeals decision is attached as

Appendix 1 to this petition. Rehearing

denied May 26, 1977.

ARGUMENT

Rule 803(10) is specific. The

certificate to show absence of a fire-

arms dealer's license did not state

that a diligent search had been made.

It did not even state that a search

was made. In U.S. vs. Dota, 482 F.2d

1005 (CA 10) cert. denied, 414 U.S.

1071, 94 S. Ct. 583, 38 L. Ed. 2d 477

(1973), relied on by the Fifth Circuit,

at least a search had been made.

To say that the evidence as oftered

was "in its mature highly rafiabie"

as did the Fifth Circuit, is to beg the

question. It is only "highly reliable"

if it is in compliance with the law,

written to exclude unreliable hearsay.

the certificate is not in compliance

with Rule 803(10), and is therefore un-

reliable hearsay and inadmissible.

The objection should have been sustained,

the conviction should have been reversed.

CON CLUSION

The Government is bound by its

own laws. The conviction must be

reversed.

By Attorney:

Ralph Brewer

Suite 210,

200 Government Street

Baton Rouge. Louisiana

70802

I certify 2 copies of this petition

has been mailed to the Solicitor General

of the United States and to the United

States Attorney, Middle District of

Louisiana, this day of June, 1977.

Ralph Brewer

UNITED STATES v. HARRIS

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Morris HARRIS, Defendant-Appellant.

No. 76-4051

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

April 27, 1977.

Defendant was convicted in the

United States District Court for the Mid-

dle District of Louisiana at Baton Rouge,

E. Gordon West, J., of engaging in the

business of dealing in firearms without a

license, and he appealed. The Court of

Appeals held that the trial court proper-

ly admitted into evidence a certificate

from an agent of the Bureau of Alcohol,

Tobacco and Firearms Division of the

Department of Treasury stating that de-

fendant had not been granted a license

to engage in business as a firearms deal-

er, despite the fact that the certificate

did not state that a diligent search of

records had been made.

Affirmed.

Criminal Law @=429(1)

Trial court properly admitted into

evidence, in prosecution for engaging in

business of dealing in firearms without

license, certificate from agent of Bureau

of Alcohol, Tobacco and Firearms Divi-

sion of Department of Treasury stating

rv ‘efendant had not been granted

ti» .» to engage in business as firearms

a. , despit» fact that such certificate

2845

did not state that diligent search of

records had been made. Federal Rules

of Evidence, rules 803(10), 902; 18 U.S.

C.A. § 922(a)(1).

Appeal from the United States Dis-

trict Court for the Middle District of

Louisiana.

Before COLEMAN, GODBOLD and

TJOFLAT, Circuit Judges.

PER CURIAM:

Appellant was convicted of engaging

in the business of dealing in firearms

without a license, 18 U.S.C. § 922(a)\1).

This circuit already had held that

§ 922(aX1) is not unconstitutionally

vague. United States v. King, 532 F.2d

505 (CA5,1976).

The only other issue appellant raises

concerns the admission into evidence of a

certificate from an agent of the Bureau

of Alcohol, Tobacco and Firearms Divi-

sion of the Department of the Treasury

stating that appellant had not been

granted a license to engage in business

as a firearms dealer. Appellant con-

tends that admission of this certificate

violated Rule 803(10) of the Federal

Rules of Evidence because the certificate

did not state that a diligent search of

records had been made. Rule 803(10), an

exception to the hearsay rule, provides:

Absence of public record or entry.

—To prove the absence of a record,

report, statement, or data compilation,

in any form, or the nonoccurrence or

nonexistence of a matter of which a

record, report, statement, or data com-

pilation, in any form, was regularly

made and preserved by a public office

* Rule 18, 5 Cir.; *ce Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970,

431 F.2d 409, Part I.

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

or agency, evidence in the form of a

certification in accordance with rule

902,' or testimony, that diligent search

failed to disclose the record, report,

statement, or data compilation, or en-

try.

The certificate by the agent stated in

relevant part:

I do hereby further certify that Morris

Harris, 4154 Pitcher Street, Baton

Rouge, Louisiana, has not been grant-

ed a license to engage in business as

[a] dealer in firearms other than de-

structive devices or ammunition for

other than destructive devices as of

February 24, 1976.

Although there is no statement in the

certificate that a “diligent search” had

been made, we think this omission does

not cause the admission of the certificate

to be reversible error. We agree with

the Court of Appeals for the Tenth Cir-

cuit which, in a similar case, said:

There has been substantial compliance

with the rule, and reversing this case

simply because the certificate failed to

1. The government complied with Rule 902.

2. Dota and Farris were decided before the ef-

fective date of the Federal Rules of Evidence

under Federal Rule of Criminal Procedure 27

UNITED STATES v. HARRIS

recite the word “diligent” would pro-

tect no substantial right of appellant

and would indicate nothing but a total

capitulation to form over substance.

United States v. Dota, 482 F.2d 1005

(CA10), cert. denied, 414 U.S. 1071, 94

S.Ct. 583, 38 L.Ed.2d 477 (1973); accord,

United States v. Farris, 517 F.2d 226

(CAT), cert. denied, 423 U.S. 892, 96 S.Ct.

189, 46 L.Ed.2d 123 (1975).?

The exception to the hearsay rule em-

bodied in Rule 803(10) is justified be-

cause evidence admitted under it is in its

nature highly reliable, i.e., the “yes or

no” of whether a license has been issued;

because the records from which the evi-

dence corn.es are open to the public

thereby increasing the probability that

any errors will be found and corrected;

and because there is a substantial need

for such evidence. See generally 5 Wig-