# Petition — Brown v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0344%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 951 ## Text | 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0344%3A1. Public record. Not legal advice.