Petition — Brown v. United States

| f/~ Supreme Court, U. S.

( "FTLED

saw 14 10m

IN THE MICHAEL RODAK, JR., CLERK

’ SUPREME COURT OF THE UNITED STATES senate thi

October Term, 1977

No. _@@-1005

ROBERT E. BROWN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

/

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

F APPEALS FOR THE SIXTH CIRCUIT

HAMPTON, SNAVELY, RANNO,

LIGHTBODY & GIRARD

By: Vern C. Hampton (P14589)

2 and Carl P. Ranno

Attorneys for Petitioner

2655 Woodward Avenue, Suite 300

‘ Bloomfield Hills, Michigan

(313) 338-9645

er. ug

“ <8 ~

— esta 71

BF Ae ‘7 ?

oF ra ate « S27,

* ; -

| | INDEX TO AUTHORITIES CITED

TABLE OF CONTENTS .

ay : Cases: Page

Page =

ts Brown v U.S., 314 F.2d 293

Index to Authorities ...... i. oe (C.A. 9, 1963) ae oe —o oe

Dn + « « 6 * ¢ » « 06 # « Se : Calhoun v U.S., 384 F.2d 180

. Sidhe Ms OTR s tle ew ee sl CO

nn + + 6 «ss « 6 * «a Je

Edwards v U.S., 374 F.2d 24

Jurisdiction .......+4e+-. Ws te en, ll

Questions Presented ...... vi. Fowler v U.S., 310 F.2d 66

C.A. ee as te ss Sei. we

Constitutional Provision . ... vii. ( ~ Se

Hyde v U.S., 225 U.S. 347, 32

Statement of Facts ....... ae i» “3 9 eVGA a

Reasons for Granting the Writ: Marks v U.S., 260 F.2d 377

oe = Wea

I aa ae a a ae ee ee ee - om Sone

Perez v U.S., 402 U.S. 146, 91

SS S.Ge. 13957 (i971) ......

we. ee a 4 4 8 ee ee Stephens v U.S., 289 F.2d 308

ry RES kt a See «6 6 aa ee ewe OS

U.S. v Borelli, 336 F.2d 376

nnn. 6 « * «0.0 6 * # # ae (C.A. 2, 1964) aie ee 2 35

eo es _ U.S. v Carvelli, 340 F.Supp. 1295

affirmed 464 F. 2d 1129, cert

Certificate of Service ..... 45 denied 93 S.Ct. 462, 409 U.S.

ee , —

U.S. v Green, 497 F.2d 1068

i, i Ce «ise «es « 6 |e

U.S. v Jones, 482 F.2d 747

iis Gute Bee «se«<«s 0+

&#

. v Ortiz, 445 F.2d 1100

“(C.A. 10, 1971)

Rizzo, 373 F.Supp. 204

» B.¥. B973) —

. vw Sigal, 341 F.2d 837

a ee 1965) ;

. v Taylor, 303 F.2d 165

(C.A. 4, 1962) :

U.S. v Workcuff, 422 F.2d 700

(C.A. D.C. 1970) P

~

Uo:

a<

United States Constitution:

Amendment V

Amendment VI .

Other Authorities:

18 U.S.C. 891, 894 (1970)...

28 U.S.C. 753

Federal Rule of Appellate Pro-

cedure 10 (c) and (e)

Federal Rules of Criminal Pro-

cedure 29 as a ae a a

Section 201 of Pub. L. 90-321,

Section 1601 of Title 15,

Commerce and Traide

‘ii.

28

37

emer

IN THE

SUPREME COURT OF THE UNITED STATES

No.

ROBERT E. BROWN,

Petitioner,

9.

UNITED STATES OF AMERICA,

Respondent.

/

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

NOW COMES, Carl P. Ranno,

attorney for Petitioner, ROBERT E.BROWN,

and prays that a Writ of Certiorari

issue to review the judgment of the

United States Court of Appeals for the

Sixth Circuit, entered in the above-

entitled case on December 14, 1977.

iii.

CITATIONS TO OPINION BELOW

The Order and decision of the

United States Court of Appeals for the

Sixth Circuit was filed on December 14,

1977, and it lineated as Nos. 76-1877

and 76-1905. That Order and decision

affirmed the conviction of the Petitioner

upon jury verdict finding Defendant-

Appellant guilty of conspiring to and of

using extortionate means to collect

money in violation of 18 U.S.C. § 894.

A copy of the opinion is

included in the Appendix to this

Petition.

viv.

JURISDICTION

The order and opinion of the

United States Court of Appeals for the

Sixth Circuit was filed on December 14,

1977. The jurisdiction of this Honor-

able Court is invoked under 28 U.S.C.

§ 1254 (1).

Il.

QUESTIONS PRESENTED

. WHETHER ERROR WAS MADE BY THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT IN THAT SAID COURT

RELIED UPON A CERTIFICATION BY THE

DISTRICT COURT JUDGE WHO HAD CON-

CLUDED THAT NO ERROR PREJUDICIAL TO

THE APPELLANT RESULTED FROM THE

FINAL ARGUMENT OF THE PROSECTOR TO

THE JURY, THAT PORTION OF THE TRANS-

CRIPT HAVING BEEN DESTROYED AND NOT

PART OF THE RECORD BEFORE THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT AND FURTHERMORE

WHETHER SAID CERTIFICATION DENIED

THE APPELLANT'S RIGHTS GUARANTEED

UNDER THE DUE PROCESS CLAUSE OF THE

FIFTH AND SIXTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

WHEN A DEFENDANT IS DEPRIVED OF A

FULL AND COMPLETE TRANSCRIPT OF

CRIMINAL PROCEEDINGS DUE TO THE

COURT REPORTER INADVERTENTLY DES-

TROYING A PORTION OF THE RECORD

WHEN SAID DESTROYED PORTION CON-

TAINS FURTHER DIRECT TESTIMONY FROM

THE DEFENDANT AS WELL AS CROSS

EXAMINATION AND OTHER EXAMINATION

OF THE DEFENDANT AS WELL AS THE CO-

DEFENDANT AND CO-CONSPIRATOR'S CASE

WHICH INDICATED THE STATE OF MIND

OF THE COMPLAINANT AND CHIEF

WITNESS FOR THE GOVERNMENT AS WELL

AS THE PREJUDICIAL REMARKS MADE BY

THE ASSISTANT U.S. ATTORNEY IN HIS

CLOSING ARGUMENT, HARM THE DEFEN-

DANT'S SUBSTANTIAL RIGHTS AND

SHOWED THAT “a CASE BE REVERSED,

ae...

III.

IV.

OR IN THE ALTERNATIVE A NEW TRIAL

GRANTED.

Petitioner answers in the affirma-

tive.

The U.S. District Court indicated

that the answer would be in the

negative.

The United States Court of Appeals

for the Sixth Circuit did not have

the available transcript to respond

to said question, but adopted the

opinion of the lower court.

WHETHER THE EVIDENCE SUBMITTED BY

THE GOVERNMENT WAS INSUFFICIENT TO

SUSTAIN A CONVICTION OF THE OFFENSE

AS CHARGED IN THE INDICTMENT ~~).

AGAINST MR. BROWN.

Petitioner answers in the affirma-

tive.

The U.S. District Court answered in

the negative.

The United States Court of Appeals

for the Sixth Circuit indicated

only that there was sufficient

evidence to establish the crime.

WHETHER THE EVIDENCE INTRODUCED AT

TRIAL REGARDING EXTORTION MET THE

LEGISLATIVE INTENT WHICH IS THE

wot FOR THE ENACTMENT OF 18 U.S.C.

§ 894.

Petitioner answers in the negative.

vii.

The U.S. District Court answered

in the affirmative.

The United State Court of Appeals

for the Sixth Circuit did not

respond.

viii.

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision

which this Petition involves is:

CONSTITUTION OF THE UNITED STATES,

AMENDMENT V:

"No person shall be held to answer

for a capital or otherwise in-

famous crime unless on a

presentment or indictment of a

Grand Jury . . . nor be deprived

of life, liberty or property .

without due process of law .

\

AMENDMENT VI:

"In all criminal prosecutions,

the accused shall enjoy the

right to . . . and to have the

Assistance of Counsel for his

defense."

ix.

STATEMENT OF FACTS

In December of 1972, the

Appellant, ROBERT E. BROWN, a supervi-

sory employee of the Michigan Bell

Telephone Company, loaned $3,000 to a

man named Cecil Ernest Tucker. The

loan was made for the benefit of Mr.

Tucker's company known as W. J. Dolan

Company. The Dolan Company was involved

in construction for the Michigan Bell

Telephone Company. One of Mr. Brown's

functions as an employee of the tele-

phone company was involved with

underground construction. Originally,

Mr. Brown felt that the loan was

actually to purchase a part of said

company, but shortly after making said

loan, realized that this was not the

case. The sum of $3,000 was to be

repaid to Mr. Brown within one year.

~

However, after the expiration of the

time period, it had not been paid and

has not been repaid nor is it to this

date. Shortly before December 20, 1974,

the Appellant approached:an old friend,

one Lawrence Malcolm Welsh, and reques-

ted Mr. Welsh to assist him in recovering

the lee. The approach to Welsh was

made by Mr. Brown when he learned that

Mr. Tucker was involved in a type of

embezzlement from the phone company.

Mi. Brown was very fearful that Mr.

Tucker would attempt to use those same

means to force Mr. Brown to embezzel

from his employer. Furthermore, Mr.

Brown was of the opinion that if the

loan ever became apparent to his company,

there may be a claim of conflict of

interest which, in fact, was not the

-2-

case and that there was never any con-

flict between Mr. Brown and his employer

Subsequent to the conversation

with Mr. Welsh, Mr. Tucker allegedly

received a phone call threatening him

regarding the return of the money to

Mr. Brown. Immediately thereafter Mr.

Tucker made a phone call back to Mr.

Welsh from a local police department

which was recorded. That recorded con-

versation indicates a threat by Mr.

Welsh if the money was not returned.

When Mr. Brown was advised of this con-

versation by Mr. Tucker, he immediately

told Mr. Welsh to have no further

contact with Mr. Tucker.

The Federal Bureau of Inves-

tigation contacted Mr. Brown,

investigating the allegations of

ate

extortion brought by Mr. Tucker. Mr.

Brown cooperated fully with the authori-

ties and in fact testified before the

Grand Jury feeling that he had done

nothing wrong. Mr. Tucker, after having

received immunity from the Government,

also testified before the Grand Jury and

subsequent thereto an indictment was

brought against your Petitioner as well

as Lawrence Malcolm Welsh, a/k/a Johnny

Welsh. The indictment is in three parts,

two counts against Mr. Brown being

Count II, aiding and abetting to collect

an extension of credit by extortionate

means contrary to Section 2 and 894,

Title 18, United States Code. Count III

is a charge of conspiracy to attempt to

collect an extension of credit by extor-

tionate means in violation of 18 U.S.C.

adie

§ 894. At the eleos of Government's

proofs, your Petitioner moved for a di-

rected judgment of acquittal based on

the fact that the Government had not

presented a case as to the Defendant

Brown. Said motion was based primarily

upon the legislative intent as well as

the lack of evidence presented by the

Government. Said motion was denied. At

that point Defendant Brown took the

stand in his own defense. and testified

that he had in fact loaned the money to

Mr. Tucker, and that in December of 1974,

he had heard rumors that there were some

kickbacks involved regarding Mr. Tucker.

Mr. Brown further testified that Mr.

Tucker advised him that if he wanted his

money returned, he would have to en-

bezzle money from the Company. At that

aSe

point, Mr. Brown “became scared". The

testimony further indicates that because

of this situation and the uncomfortable

position he was placed in with his com-

pany, Mr. Brown contacted Mr. Welsh. He

requested Mr. Welsh to help him return

his money, but there is no indication

whatsoever that Mr. Brown ever requested

that Mr. Welsh threaten Mr. Tucker.

On December 20, 1974, Mr.

Brown again met with Mr. Tucker and was

advised that Mr. Tucker had been

threatened by Mr. Welsh. At that point,

Mr. Brown immediately contacted Mr.

Welsh and advised him not to contact

Mr. Tucker again.

On page 262 of the transcript

on direct examination, Mr. Brown was

asked as to a second conversation he

—

cle

had with Mr. Tucker in March of 1975.

Mr. Brown was asked what was the content

of the conversation, if he could recall.

At that point, Mr. Hunterton, the

Assistant United States Attorney, ob-

jected. The transcript then concludes

with argument between Mr. Brown's coursel

and the U.S. Attorney regarding the

propriety over an objection. It is

interesting to note that at that point

the transcript becomes disjointed in

that Mr. Hirschhorn, attorney for Mr.

Welsh, is suddenly on the scene indi-

_ cating a subpoena for an officer. The

transcript then ends with the jury re-

turning a verdict of guilty.

Unknown to your Petitioner, Mr

Brown, the rest of the transcript was

aDe

"i

wa

inadvertently erased by the court

reporter. This included further direct

examination of Mr. Brown, cross examina-

tion by Mr. Hunterton, the Assistant U.S.

Attorney, and examination by Mr.

‘Hirschhorn, the Co-Defendant's attorney

as well as redirect examination by Mr.

Brown's attorney. After all of this

testimony was placed on the record, the

Defendant: Brown rested and Mr. Hirsch-

horn presented testimony from a police

officer at the Livonia Police Department.

Subsequent thereto there were further

arguments made regarding acquittals and

then closing argument, it was Defendant

Brown's contention in a subsequent

motion for judgment of acquittal, or in

the alternative for a new trial, that

the Assistant U.S. Attorney had mis-

aiie

stated the facts and injected his own

opinion which resulted in confusion to

the jury.

An Affidavit was received from

James Lee Briggs, the court reporter,

indicating that direct testimony from

Defendant Brown, including approximately

five minutes of his direct testimony was

unavailable. This Affidavit was re-

ceived along with a memorandum of law

from the trial judge indicating that

this was not basis for a new trial. At

that juncture, Mr. Brown had no attorney

and made a request for a court appointed

attorney because of his indigent posi-

tion. The Affidavit from the court

reporter is not accurate in that much

more testimony and argument, as well as

closing argument were destroyed. Prior

to knowledge that the transcript had

-_~

been destroyed, a motion for judgment of

acquittal or in the alternative for ag

new trial, had been made by Defendant

Seeun which was denied by the trial

judge. Said motion, argument and brief,

as well as the order of the trial judge,

are a part of this record which has not

been destroyed.

An appeal was perfected to the

United States Court of Appeals for the

Sixth Circuit, arguments were had in

open court, and the matter was remanded

because of the deficiency of the trans-

cript of the trial court record. The

District Judge made a certificate to the

United States Court of Appeals in which

the defense attorneys did not agree.

The United States Court of Appeals then

affirmed the lower court's conviction.

-10-

“not reflected in the original

transcript."

REASONS FOR GRANTING WRIT

I. WHETHER ERROR WAS MADE BY THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT IN THAT

SAID COURT RELIED UPON A CERTI-

FICATE BY THE DISTRICT COURT

JUDGE WHO HAD CONCLUDED THAT NO

ERKOR PREJUDICIAL TO THE APPEL-

LANT RESULTED FROM THE FINAL

ARGUMENT OF THE PROSECUTOR TO |

THE JURY, THAT PORTION OF THE reporter. The Court of Appeals could

TRANSCRIPT HAVING BEEN DESTROYED

AND NOT PART OF THE RECORD BEFORE

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT, AND FUR-

THERMORE WHETHER SAID CERTIFICATION

DENIED THE APPELLANT'S RIGHTS

GUARANTEED UNDER THE DUE PROCESS

CLAUSE OF THE FIFTH AND SIXTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. : ; spor ... issues appealed. It is the Petitioner's

The United States Court of Appeals for

the Sixth Circuit did not have the

advantage of the record in that it was

inadvertently destroyed by the court

not determine whether the remarks by the

Prosecutor were prejudicial. The lower

court held that it made no prejudicial

error, and this is one of the basic

The United States Court of contention that there was prejudicial

Appeals for the Sixth Circuit, in its error made that could not have been

Order of- December 14, 1977, states as _ cured.....The Court of Appeals, by adop-

follows: ting the position taken by the District

"The District Judge has made a

certification of this Court con-

cluding that no error prejudicial

to the Appellants resulted from

the final argument of the Prose-

cutor to the jury, or otherwise,

during the period of the trial

-lj-

Court without the benefit of the record,

_has- replaced their duty to review all

the record with the conclusion of the

District Court. In other words, the

-12-

Petitioner's right to an appeal was

never granted in that the Court of

Appeals simply adopted the opinion of

the District Judge, the very opinion

which was appealed.

There has been a showing,

through Affidavit and ergunent by the

Petitioner, that there was error made

in that the destroyed portion of trans-

cript affected Petitioner's substantial

rights. The United States Court of

Appeals for the Sixth Circuit did not

have that specific portion of the record

to determine whether or not there was

error. It simply adopted the conclusion

made by the District Judge as its own.

The lower court's decision, however, is

the primary reason for the appeal.

Furthermore, in the order of

December 14, 1977, the Appellate Court

oie

quoted as follows:

"It being further concluded

that there is sufficient

evidence in the record to

establish the essential

elements of the crimes

charged and to otherwise

support the verdict of the

jury.

The fact that there was sufficient

evidence to meet the burden of a prima

facie case on behalf of the Government

is insufficient to affirm the verdict of

the jury unless the Defendant's case is

available to be reviewed by the Appel-

late Court.

It is the contention of the

Petitioner that the statements made by

the Prosecutor were prejudicial and

those statements are forever lost. It

is the duty of the Court of Appeals to

determine whether said statements were

in fact incurably prejudicial. The

abn

District Court Judge determined that

there was no prejudice, but the Peti-

tioner disagrees and has exercised his

right to an appeal to the United States

Court of Appeals. Because said Court

adopted the opinion of the District

Court, without benefit of the transcript,

he has been denied his rights guaran-

teed under the due process clause of the

Fifth Amendment of the United States

Constitution.

By accepting the conclusions

of the District Court, the briefs and

arguments submitted by Petitioner's

counsel have fallen on deaf ears in that

the Court of Appeals merely accepted,

without reason and without consideration,

that which was appealed. In effect,

your Petitioner has been denied his

= {=

right to counsel as guaranteed by the

Sixth Amendment to the United States

Constitution in that all that was

argued through briefs and orally was not

accepted in that the Court of Appeals

accepted a certification which was the

very basis of the appeal.

atin

Il. WHEN A DEFENDANT IS DEPRIVED OF

A FULL AND COMPLETE TRANSCRIPT OF

CRIMINAL PROCEEDINGS DUE TO THE

COURT REPORTER INADVERTENTLY DES-

TROYING A PORTION OF THE RECORD

WHEN SAID DESTROYED PORTION CON-.

TAINS FURTHER DIRECT TESTIMONY FROM

THE DEFENDANT AS WELL AS CROSS

EXAMINATION AND OTHER EXAMINATION

OF THE DEFENDANT AS WELL AS THE CO-

DEFENDANT AND CO-CONSPIRATOR'S CASE

WHICH INDICATED THE STATE OF MIND

OF THE COMPLAINANT AND CHIEF

WITNESS FOR THE GOVERNMENT AS WELL

AS THE PREJUDICIAL REMARKS MADE BY

THE ASSISTANT U.S. ATTORNEY IN HIS

CLOSING ARGUMENT, HARM THE DEFEN-

DANT'S SUBSTANTIAL RIGHTS AND

SHOWED THAT SAID CASE BE REVERSED,

OR IN THE ALTERNATIVE A NEW TRIAL

GRANTED.

Petitioner answers in the affirma-

tive.

The U.S. District Court indicated

that the answer would be in the

negative.

The United States Court of Appeals

for the Sixth Circuit did not have

the available transcript to respond

to said question, but adopted the

opinion of the lower court.

Petitioner contends that there

is no difference on appeal between in-

okTa

advertently destroying a tape of the

proceedings and failing to record the

proceedings under 28 U.S.C. 753 (b) of

the “Court Reporters Act" which states

"one of the reporters appointed for each

court shall attend . . .and shall. record

verbatim. . . (1) all proceedings in

criminal cases had in open court . ™

In each instance, the purpose of the

statute is for the protection of parties

and of court ~ to an end, whereby

justice may be served by having an

available, correct and authentic record

preserved free from infirmities of

human error so as to safeguard Defen-

dant's rights. Where such a record in

‘unavailable, Defendant's substantial

rights are violated. Edwards v. U.S.,

374 F.2d 24 (C.A. 10 Okla. 1966) and

-U.S. v Taylor, 303 F.2d 165 (C.A. 4 N.C.

1962). -

In Stephens v U.S., (C.A. 5

Tex. 1961), the court held that failure

of the court reporter to record argu-

ments of counsel to the jury, was a

reversible error in and of itself. The

Fifth Circuit agreed with appellant's

contention that he was entitled to a

transcript of all the proceedings which

took place in the court below in order

that he may properly present specified

errors on appeal. In Stephens, the

court based its decision on the Court

Reporters Act, 28 U.S.C. § 753 (b) (1970),

which mandates the recording of all pro-

ceedings in open court in a criminal

proceeding. The court concluded that

“the result is that a full transcript

is not available to us, /and7 we do not

see how we can. . . adjudicate that

there was no showing that any errors

~"*

which might have been reflected by the

transcript were harmless", (at 309).

Accordingly, the court granted a new

trial. |

Petitioner concedes that

Stephens per se rule on reversal for a

new trial where there is not a complete

and accurate transcript has been modi-

fied by subsequent cases. The mere

failure to record or have a record

unavailable on appeal is not reversible

per se without some showing by the

appellant that the record which is

unavailable contains error which affects

Defendant's substantial rights.

Brown v U.S., 314 F.2d 293

(C.A. 9, 1963) and Calhoun v U.S. 384

F.2d 180 (C.A. 5 Miss. 1967), the court

held that even though a record is in-

complete, final arguments by U.S.

-20-

Attorney in his closing argument to the

jury repeatedly, in quoting from

Appellant Brown's Grand Jury testimony,

interjected his own comments which were

immediately objected to. Subsequent to

the initial objection, the U.S. Attorney

again interjected his own comments as if

they were part of the record. Peti-

tioner's position is that this inter-

jection is a case of clear abuse by the

U.S. Attorney and that it substantially

prejudiced Petitioner's rights, Marks v

U.S., 260 F.2d 377 (1958). InU.S. v

Jones, 482 F.2d 747, (C.A. D.C. 1973),

the court held that improper conduct

which would amount to prejudice depends

on the closeness of the case. In U.S. v

Green, 497 F.2d 1068 (C.A. 7 1973), the

court held that the statement must not

be viewed by itself, but in the context

-21-

of the whole proceeding to determine if

Defendant's rights were substantially

harmed. Petitioner asserts that due

to the Government's weak case against

him and the Prosecutor's comments to the

jury, these statements. were prejudicial

and cannot be viewed as a mere harmless

__exxoxr. _ The only evidence against Peti-

tioner was a recorded telephone

conversation not involving said Peti-

_-.t,....tianer, testimony by Complainant. Tucker.

and the Grand Jury proceedings. Standirg

alone, all evidence would only provide

aw cunt the.most, a circumstantially. weak.

case for showing Petitioner's partici-

pation. Within that case, the Grant

-

. oun. Jury -testimony was the substantive

evidence relied upon by the U.S.

Attorney in substantiating his case.

N mos so o vom on Fowler v U.S., 310 F.2d. 66

o22-

(C.A. 5 1962), the court held that

“without a transcript of the argument

of counsel we are unable to determine

whether the U.S. Attorney made such

prejudicial comment as to require

reversal. This being so it follows that

a new trial must be had." (at 312).

Rule 10 (c) and (e) of the

Federal Rules of Appellate Procedure

provides a manner in which an appellant

can bring before the court matters which

occurred during the proceeding and of

which no record was made or is available.

Appellant has tried to comply with this

rule but concedes that he cannot agree

with counsel or the U.S. Attorney to a

supplemental record. The fact that such

comments by the U.S. Attorney, during

his closing argument, were interjected

at will, makes such an attempt futile.

..*

Even if such procedure was successful

in supplementing the record, Petitioner

' has tried to comply with this rule but

concedes that he cannot agree with the

U.S. Attorney to a settled record. The

fact that such comments by the U.S.

Attorney, during his closing argument,

were interjected at will makes such an

attempt futile. Even if such procedure

was successful in settling the record,

Petitioner contends it would not be

enough to avoid the court granting a new

trial or reversal. In U.S. v Workcuff,

422 F.2d 700 (C.A. D.C. 1970) the court,

faced with a record which omitted a jury

instruction which counsel for appellant

and U.S. Attorney later stipulated to

based on the U.S. Attorney's note,

stated:

"The difficulties inflicted upon

~24-

ewe. site

appellant's counsel by an

inadequate transcript of the

trial proceedings are necessarily

shared by the reviewing court.

It is difficult enough in normal

circumstances to appraise the

propriety of the trial court's

various actions on the basis of

a cold printed record; when that

record is replaced by the incon-

plete hearsay recollections of

one of the parties our review is

turned into an exercise in creative

imagination. ‘It is a cardinal

rule of appellate practice that

_. ...the facts are those found in the -

record, not those found in the

minds of the attorney’ (citing

U.S. v Sigal, 341 Fd 837, 850

(C.A. 3, 1965) Cert denied 382 U.S.

811."" (Emphasis added.)

The court based its holding on

the view that absent a complete and

accurate transcript the ability of

appellate counsel to protect his client's

basic rights would be impaired:

"Recollections and notes of trial

‘uess are o. Counsel and of others. are.apt.to .

be faulty and incomplete. Fre-

quently issues simply cannot ever

been seen let alone assessed

without reading an accurate

transcript . ." (Cat 202).

«ite

BEST COPY AVAILABLE.

In conclusion, it seems that

even where an incomplete record was

successfully supplemented by stipulation

as in Workcuff, the appellate court will

not allow such supplemental record to be

a basis for appellate procedure.

Not only has your Appellant

raised the issue of the prejudicial

remarks made by the U.S. Attorney in

closing argument, but upon thorough

review of the record, he has become

aware of the facts that part of his

direct examination, as well as cross

examination by the U.S. Attorney, and

examination by co-defense counsel, as

well as redirect examination, has been

destroyed. Furthermore there were

undoubtedly arguments made at the close

of Appellant's case prior to the case of

the Co-Defendant Mr. Welsh. During Mr.

offic

Welsh's case, however, a police officer

was placed on the stand who testified as

to the mental attitude of the Com-

plaintant and chief Government witness,

Mx. Tucker. This testimony indicated

that there was no fear in Mr. Tucker's

mind which is a primary element of the

crime of extortion. : :

-27-

III. WHETHER THE EVIDENCE SUBMITTED BY

THE GOVERNMENT WAS INSUFFICIENT TO

SUSTAIN A CONVICTION OF THE OFFENSE

AS CHARGED IN THE INDICTMENT

AGAINST MR. BROWN.

Petitioner answers in the affirma-

tive.

The U.S. District Court answered in

the negative.

The United States Court of Appeals

for the Sixth Circuit indicated

__...-.qanly that there was sufficient

evidence to establish the crime.

At the close of the People's

proofs and pursuant to Rule 29, Federal

Rules of Criminal Procedure, the Peti-

tioner Brown moved for motion for

judgment of acquittal which was denied

by the trial judge. Said basis for

moving for a motion of acquittal is that

the Government has failed to establish

a prima facie case. Even though a very

necessary part of this transcript has

been destroyed, it is apparent from that

-28-

which remains that the Government has

failed to submit evidence sufficient to

sustain a conviction as a matter of law.

The Petitioner Brown contends that the

verdict is not supported by substantial

and competent evidence. The evidence

presented by the Government was in three

forms: 1) Grand jury testimony; 2)

chief witness Tucker's testimony; and

3) recorded conversation between Co-

Defendant Welsh and Tucker. At no time

did the above evidence indicate or could

it be inferred that Petitioner Brown

knowingly induced the Co-Defendant Welsh

to threaten Mr. Tucker. 18 U.S.C. 894

(1970) requires that the perpetrator of

extortion knowingly participate in said

extortion. The only evidence introduced

by the Government is that Mr. Brown

asked Mr. Welsh to assist him in the

-29-

collection of a debt. (Page 212,

transcript). In fact, Mr. Tucker, the

chief Government witness, testified that

as soon as Mr. Brown was advised of the

threat, there was no further contact

with Mr. Welsh (Page 125, 126 and 127,

transcript). This certainly does not

indicate that Petitioner Brown knowingly —

participated in any threat against Mr.

Tucker. Your Petitioner testified at

the tria! that as soon as he knew that

Mr. Tucker had been threatened, he con-

tacted Mr. Welsh and advised Mr. Welsh

that there should be no further contact

between him and Mr. Tucker. (Page 261,

transcript).

The facts in evidence sub-

mitted by the Government merely show

that Mr. Welsh threatened Mr. Tucker,

but there was never any showing that

-30-

Petitioner Brown had any knowledge

beforehand of said threat. Your Peti-

tioner also testified that because of

his position with his employer, he felt

that it was impossible for him to pursue

the normal legal channels to collect a

debt. The record of the Grant Jury as

well as the testimony of Mr. Brown

indicates clearly that the Appellant

Brown merely requested an old friend to

assist him in collecting a debt, in that

the Petitioner was unable to act based

on a conflict of interest with his

employer, Michigan Bell Telephone

Company, (page 212 and 259, transcript).

To determine whether a

judgment of acquittal is to be granted,

it is necessary to test the sufficiency

of the evidence in the light most

favorable to the Government. and.to

ote

determine whether there was substantial

evidence from which the jury could have

reached a verdict of guilty, U.S. v

Ortiz, 445 F.2d 1100 (C.A. 10 1971)

cert denied, 404 U.S. 993. It appears

that the Federal Government's argument

and evidence at trial presented an

inference of wrongdoing based on the

inference that Petitioner knew Welsh

would threaten Tucker. Your Petitioner

submits that such proofs do not as a

matter of law present any substantial

and competent evidence, and the Govern-

ment has failed to meet its burden of

showing that Petitioner knowingly par-

ticipated in extortion, as defined in

18 U.S.C. 894 (1970).

Your Petitioner contends that

no evidence was presented by the Govern-

ment to establish'a conspiracy.

-32-

Furthermore it is his contention that

the evidence as submitted by the

Government established as a matter of

law that Petitioner Brown withdrew from

the alleged conspiracy and the absence

of his activity after he learned of Mr.

Welsh's threat would preclude a convic-

tion of that charge.

In U.S. v Carvelli, 340

F.Supp. 1295 (1972) affirmed 464 F.2d

1129, cert denied, 93 S.Ct. 462, 684;

409 U.S. 1023, 1076, the court stated

absent affirmative evidence of with-

drawal, once a conspiracy has been

established it is presumed to continue.

The essence of the offense of a conspir-

acy to extort is that the conspirators

entered into a scheme or plan to extort

and committed an overt act in further-

ance of that scheme or plan. U.S. v

- 33-

Rizzo, 373 F.Supp. 204 (D.C. N.Y. 1973).

Petitioner contends that the Government

has failed to show Petitioner's

knowledge of such scheme or plan of

extortion, i.e., threats by Co-Defendant

Welsh to Mr. Tucker. Your Petitioner

further contends that there was no

intent on his behalf to further a scheme

as created by Co-Defendant Welsh when he

was informed of Mr. Welsh's threat to

Mr. Tucker. After learning of these

threats based upon a second meeting with

Mr. Tucker, Mr. Brown immediately told

Mr. Welsh that he would have no further

involvement with such a scheme. In Hyde

v U.S., 225 U.S. 347, 369 32 S.Ct. 793,

803, the court laid down rigorous re-

quirements for creating the defense of

withdrawal from a conspiracy; i.e., mere

cessation of activity is not enough,

‘

ois

there must be some affirmative action

either making a clean breast to the

authorities or communication of

abandonment in the manner reasonably

calculated to reach co-conspirators.

(Emphasis added). Such burden lies with

the Defendant to establish withdrawal.

U.S. v Borelli, 336 F.2d. 376 (C.A. 2

1964). Your Petitioner further contends

that as a matter of law, he established

that once he learned of Welsh's activi-

ties, he communicated with Welsh not to

pursue the matter any further. This

position is cleariy stated in the

surviving portion of the transcript from

the fact that Tucker had no further con-

tact with Mr. Welsh subsequent to his

conversation with Petitioner Brown. It

is your Petitioner's contention that

this is within the withdrawal standards

-35-

as set forth in Borelli. Furthermore,

the Petitioner voluntarily made a state-

ment to the Federal Bureau of Investiga-

tion which established beyond a doubt

that the statements made by the

Petitioner on May 12, 1975, as a matter

of law, showed his withdrawal from said

conspiracy.

«Sin

IV. WHETHER THE EVIDENCE INTRODUCED AT

TRIAL REGARDING EXTORTION MET THE

LEGISLATIVE INTENT WHICH IS THE

BASIS FOR THE ENACTMENT OF 18

U.S.C. § 894.

Petitioner answers in the negative.

The U.S. District Court answered

in the affirmative.

The United States Court of Appeals

for the Sixth Circuit did not

respond. |

18 U.S.C. 891, et sequa, was

created by the express intent of Con-

gress to eliminate loan sharking,

racketeering and organized crime.

Furthermore the United States Congress

went on to find that it is necessary to

enact a law of this nature and that

extortion directly affects the purpose

of the laws of bankruptcy. Section 201

of Pub.L. 90-321. Section 1601 of

Title 15, Commerce and Trade. The

Government has failed to indicate any

intent of loan sharking or racketeering

o%9s

or organized crime. Further the laws of

bankruptcy could not have been affected

according to the testimony by the

Government's chief witness in that said

witness had the money available for

repayment to Mr. Brown. Therefore, Mr.

Tucker's company was not insolvent

during the period of time that this

alleged incident occurred. Furthermore

in part of the transcript that was

destroyed, Judge Cornelia Kennedy

indicated that there was no evidence of

organized crime in this matter which is

one of the problems that the U.S.

Congress attempted to eliminate as far

as the collection of a debt.

It is implied in the legis-

lative intent and from the reading of

the applicable U.S. Code that extortion

places the victim in fear for his own

-38-

safety or the safety of his property.

The Government failed to establish any

fear on behalf of Mr. Tucker. Unfor-

tunately the transcript containing the

testimony from a Sergeant Favors of the

Livonia Police Department was destroyed.

However, in his testimony, Sergeant

Favors indicated that Mr. Tucker on the

night of the alleged threat, in fact the

night that the telephone conversation

was recorded with Mr. Welsh, wasn't

even concerned enough about his family

to remain home. Furthermore, the

following day Mr. Tucker advised the

Livonia Police Department that he would

not pursue the matter further. Peti-

tioner Brown submits, as he did in argu-

ment to the court, that the extortion

victim's state of mind was an essential

element to be proved by the Government

aft.

and is one of the problems which the

United States Congress intended to

eliminate. Perez v U.S., 402 U.S. 146,

91 S.Ct.

1357 (1971).

-40-

CONCLUSION

WHEREFORE, Petitioner res-

pectfully requests that this Honorable

Court grant this Petition for a Writ of

Certiorari to review the Order and

judgment of the United States Court of

Appeals for the Sixth Circuit.

HAMPTON, SNAVELY, RANNO

LIGHTBODY & GIRARD

‘ v . } .

By Sper, © subecnaiieen

VERN C. HAMPTON(P14589

And By: OT y, benns

CARL P. RANNO

Attorneys for Peti-

tioner - Brown

2655 Woodward Avenue

Suite 300

Bloomfield Hills,

Michigan 48013

(313) 338-9645

~-41-

NOS. 76-1877, 76-1905

7 UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LAWRENCE MALCOLM WELSH

Defendant-Appellant :

ORDER

UNITED STATES OF AMERICA

. Plaintiff-Appellee

ROBERT E. BROWN

Defendant-Appellant

Before: WEICK, PECK and

MERRITT, Circuit

Judges.

These appeals, perfected from

judgments entered on jury verdicts

finding defendants-appellants guilty of

conspiring to and of using extortionate

~-42<

means to collect money in violation of

18 U.S.C. § 894, have been submitted on

the record on appeal and on the briefs

and oral arguments of counsel. Pursuant

to an order of remand, necessitated by a

deficiency in the transcript of the

trial court record, entered herein April

26, 1977, the district judge has made a

certification to this court concluding

that no error prejudicial to the

appellants resulted from the final argu-

ment of the prosecutor to the jury, or

otherwise, during the period of the

trial not reflected in the original

transcript. It being further concluded

that there is sufficient evidence in the

record to establish the essential

elements of the crimes charged and to

otherwise support the verdicts of the

jury,

~-43-

IT IS ORDERED that the

judgments of the district court be and

they hereby are affirmed.

ENTERED BY ORDER OF THE

COURT

/s/ |

John P. Hehman, Clerk of

the Court

(This order has been retyped to be

attached as the Appendix to this

Petition.)

FILED on December 14, 1977

John P. Hehman, Clerk

-44-

CERTIFICATE OF SERVICE

I hereby certify that three

(3) copies of Petition for Writ of

Certiorari to the United States Court

of Appeals for the Sixth Circuit, were

forwarded to:

Solicitor General

of the United States

Department of Justice

Washington, D.C. 20530

by depositing same in the United States

Government Mail, postage prepaid and

clearly addressed on January 12, 1978.

HAMPTON, SNAVELY, RANNO,

LIGHTBODY & GIRARD

By: _( Ayl LZ, Lanes —

ARL P. RANNO

2655 Woodward Avenue

Suite 300

Bloomfield Hills,

Michigan 48013

(313) 338-9645

-45-