Petition — Boswell v. United States

a an

W7-1466

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 76-1843

FREDERICK N. BOSWELL,

Petitioner,

Vv.

UNITED STATIS OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

James R. Van Camp

VAN CAMP, GILL & CRUMPLER, P. A.

Counsel for Petitioner

Post Office Drawer 1438

Southern Pines, N. C. 28387

(919) 692-2622

INDEX

Opinions below

Jurisdiction

Questions Presented

Statute Involved

Statement of the Case

Reasons for Granting Writ

Conclusion

Appendix A

Opinion of the United States Court of

Appeals for the Fifth Circuit

Appendix B

Judgment of the United States Court

of Appeals for the Fifth Circuit

Appendix C

Notice of denial of petition for rehearing

Appendix D

Order staying surrender order and

finding non-notification to counsel

Appendix E

Order staying mandate and granting

period until April 15, 1978 for

notice of filing petition

Page

24

26

27

(1544)

TABLE OF AUTHORITIES CITED

Constitutional Provisions

Sixth Amendment to the United States

Constitution

Cases

Chambers v. Maroney, 399 U.S. 42

(1970)

Chapman v. United States? 386 U.S.

18 (1967)

Coleman v. Alabama, 399 U.S. 1 (1970)

Freeman v. United States, 227 Fed. 732

(Second Cir., 1915)

Haith v. United States, 342 F.2d 158

(Third Cir., 1965)

Harrington v. California, 395 U.S. 250

(1969)

Milton v. Wainwright, 407 U.S. 371

(1972)

Patton v. United States, 281 U.S. 276

(1930)

Traction Company v. Hof, 174 U.S. 1

(1899)

United States v. Pfingst, 477 F.2d 177

(Second Cir., 1973)

United States v. Wade, 288 U.S. 218

(1967)

13, 14

11

14

14

12

10

1l

14

Statutes

- a ce

Federal Rules of Criminal Procedure,

Rule 25(a)

Other

Orfield, Disability of the Judge in

Federal Criminal Procedure, 6 ST. LOUIS

UNIVERSITY LAW JOURNAL 150 (1960)

iii

' &—&6% &

13

1N THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 76-1843

FREDERICK N. BOSWELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Frederick Newell Boswell, the Petitioner, prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fifth

Circuit, entered in the above-entitled case on March 15,

1978.

Pee

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at _—s F.2d is

Ne. 76-1843 (5th Cir., January 12, 1978) and is

printed in Appendix A, infra, p. 17. The judgment of

the United States Court of Appeals for the Fifth

_ Circuit is printed in Appendix B, infra, p. 24. No

opinion of the United States District Court for the

Southern District of Mississippi is reported.

JURISDICTION

The judgment of the United States Court of

Appeals for the Fifth Circuit (Appendix B, infra, p. 24)

was entered on January 12, 1978. A timely petition

for rehearing was denied on February 15, 1978 (Appendix

C, infra, p. 25). Pursuant to a finding that "through

inadvertence, the attorney for Frederick Newell

Boswell was not notified of the affirmance [by the

United States Court of Appeals for the Fifth Circuit]

or the Surrender Order," the United States District

Court for the Southern District of Mississippi ordered

stay of the surrender order (Appendix D, infra, p. 26) on

March 14, 1978, and the United States Court of Appeals

:

‘recalled and stayed its mandate to and including

ae 15, 1978, pending filing of petition for writ of

:

‘certiorari in the Supreme Court of the United States

(Appendix E, infra, p.27 ) on March 27, 1978. The

jurisdiction of the Supreme Court is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

l. WHETHER THE DELEGATION BY THE TRIAL JUDGE OF THE

AUTHORITY TO SUPERINTEND THE TRIAL DURING CLOSING

ARGUMENT TO A UNITED STATES MAGISTKATE WHO HAS NOT

FAMILIARIZED HIMSELF WITH THE RECORD OF THE TRIAL

VIOLATES THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO A

JURY TRIAL?

2. WHETHER A RIGHT TO SUPERINTENDENCE BY AN OFFICIAL

FAMILIAR WITH THE RECORD OF THE TRIAL UNDER THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION IS AMONG

THOSE RIGHTS THAT ARE SO BASIC TO A FAIR TRIAL THAT

THEIR INFRACTION CAN NEVER BFE TREATED AS HARMLESS

ERROR?

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

This case involves the Sixth Amendment to the

United States Constitution, providing as follows:

» Se

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the state and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the assistance of

counsel for his defense.

and also involves Federal Rules of Criminal Procedure,

Rule 25(a), providing as follows:

If by reason of death, sickness or other

disability the Judge before whom a jury trial

has commenced is unable to proceed with

the trial, any other judge regularly sitting

in or assigned to the court, upon certifying

that he has familiarized himself with the

record of the trial may proceed with and

finish the trial.

STATEMENT OF THE CASE

Facts

This criminal action was commenced by the United

States of America, in the United States District Court

for the Southern District of Mississippi against

Petitioner, Frederick Newell Boswell. Petitioner was

charged with violations of 18 U.S.C. §371, Mail Fraud,

and 18 U.S.C. §1341, Fraud by Wire, and 18 U.S.C.

§1343, Fraud by Wire.

After a five-day presentation of evidence, the

‘presiding judge became ill. After determining that

counsel had no objection, but without informing the

Petitioner or obtaining a waiver from him, the judge

savented 6 United States Magistrate to preside over

the trial during the closing arguments. The magistrate

introduced himself to the jury and explained his

presence there, but did not first familiarize himself

with the record of the trial proceedings nor make any

other effort to become familiar with the proceedings

during the five (5) days of trial.

During the course of the subsequent arguments to

the jury, counsel for the Petitioner made numerous

objections to the argument of the United States Attorney.

Many of these objections were based on a belief that

the United States Attorney was misquoting testimony.

The transcript reveals six (6) instances of objections.

The Magistrate's reaction to those objections was, on

the first occasion, to point out that it was hard for

him to rule when he had not been present during the

trial and then to direct the United States Attorney to

confine his argument to the testimony. On the next

‘occasion, he asked the United States Attorney whether

lets evidence in fact showed what he had just argued,

but that was his only response and the prosecutor did

‘not reply. On the next occasion, he directed the

defense attorney to read a portion of the transcript

that related to the argument that the defense attorney

had just objected to. On the next occasion the defense

attorney objected to a portion of the U. S. Attorney's

argument that appeared to place the burden of proving

certain factual matters upon the defendant. The

Magistrate's response to that objection was to point

out that the U. S. Attorney was on closing argument.

The next objection, based on an inaccurate statement

of the testimony, prompted the Magistrate to ask

whether he thought that they now had the facts straight.

The final objection was met by the response that the

defense attorney had made his argument to the jury and

that “we are now on closing argument." In none of

the instances did the Magistrate presiding over the

closing argument make any attempt to seek a ruling

from the judge who had presided during the testimony,

nor did he give any indication that anyone other than

tess...

he was in fact in charge of presiding during the

closing argument.

Following the closing arguments, the judge who

had presided during the course of the testimony

returned to the bench and instructed the jury. After

deliberation, the jury found the Petitioner Boswell

guilty on all three (3) counts. The case was appealed

to the United States Court of Appeals for the Fifth

Circuit, which entered judgment on January 28, 1978,

affirming the conviction of the defendant on all

counts, but was remanded for resentencing on a pro-

bationary sentence made conditional upon a restitution

of a sum to be determined by a probation officer.

(That portion of the judgment is not at issue in this

petition.)

The Rulings Below

The District Court refused a motion by the

defendant for a new trial on the grounds that the

United States Magistrate had sat improperly during the

closing arguments to the jury.

The Court of Appeals, on the issues presented in

this petition, apparently held that, although the

ote

~~ Ae

substitution of the Magistrate for the judge was

clearly in violation of Rule 25(a) of the Federal

Rules of Criminal Procedure for the United States

Magistrate to proceed during the closing arguments,

invasion of a constitutionally guaranteed right, that

in this case there was nothing prejudicial in the use

of the magistrate and “that beyond a reasonable doubt

lack of conformity in this instance was harmless

error." The court expressly disclaimed deciding

whether the occurrence was a violation of the petitioner's

Constitutional rights. A concurring opinion by Circuit

Judge Tjoflat argued that the error was constitutional

but was not fundamental to a fair trial and, therefore,

could be found to be harmless error if it were found

se to be beyond reasonable doubt. The Circuit Court

later refused a timely motion for rehearing, but

stayed the mandate pending determination of this

petition.

REASONS FOR GRANTING THE WRIT

~ ig

CERTIORARI SHOULD BE GRANTED TO PERMIT DETERMINATION

OF THE CONSTITUTIONAL DIMENSIONS OF THE

USE OF UNITED STATES MAGISTRATES IN DISTRICT

=

ce 0 oabalil Voatblati ay

COURT TRIALS AND TO EXPLORE THE LONG-NEGLECTED

QUESTION OF THE DIMENSIONS OF THE SIXTH

AMENDMENT RIGHT TO TRIAL BY JURY.

Although, as has been conceded at each level of

this action, the substitution of a United States

Magistrate for the United States District Court Judge

was improper under Federal Rule of Criminal Procedure

25(a), the issue raised in this petition is not based

on the lack of authority for the Magistrate to act.

In fact, the issue is believed to be of importance

precisely because of the apparent need to explore the

use of the Magistrate in situations involving trials

in the United States District Courts and in which the

U. S. magistrate might be helpful. This case presents

an opportunity to map the area in which United States

magistrates could serve and what qualifications they

would need to satisfy in order to serve in ways exem-

plified by the use of the United States Magistrate in

this case (assuming that rules were to be adopted

which would permit their use consistent with the

requirements of the United States Constitution).

Therefore, the central issue raised in this

petition is whether a United States magistrate, or

anyone else who might be authorized by law to sit in

place of a presiding U. S. District Court judge, could

constitutionally do so without having familiarized

himself with the record of the prior trial proceedings.

The only federal case which has addressed this

issue is Traction Company v. Hof, 174 U.S. 1 (1899),

held that the phrase "trial by jury" as used in the

Sixth Amendment to the United States Constitution

encompasses a requirement that the "trial be in the

presence and under the superintendence of the judge

empowered to instruct them on the law and to advise

them on the facts." The court there observed that the

“proposition has been so generally admitted, so seldom

contested, that there has been little occasion for its

distinct assertion," and that status has not changed.

In the seventy-nine (79) years since he Hof decision,

that statement has never been questioned or overruled.

The facts in this case make clear that the situation

in which the United States magistrate worked during

this trial was not one where the Magistrate was tempo-

rarily present and merely exercising superintendence

of the trial as an agent of the United States District

» Me

eames sesmmmsmiina iia

Court judge. Rather, the Magistrate was himself

superintending the trial during the period of the

judge's absence, as reflected by the fact that he did

not attempt to seek the judge's assistance when he was

called upon to rule on objections during the course of

the closing argument.

Thus, the issue raised here is not the more

common one of the effect of the failure of a presiding

judge to be present during a portion of the trial, but

rather one of superintendence by a person who has not

prepared himself properly to superintend the trial.

The issue is substantially different than that reflected

in U. S. v. Pfingst, 477 F.2d. 177 (Second Cir.,

1973), or Haith v. United States, 342 F.2d. 158 (Third

Cir., 1965), in which the issue was the effect of the

absence from the courtroom of the trial judge during a

portion of the trial, even though the lack of physical

presence did not prevent his continved superintendence

of the trial.

The only case since Hof which addresses this

issue is Freeman v. United States, 227 Fed. 732

(Second Cir., 1915). The question in that case was

» 2 «

a od

whether a defendant could consent to one judge's being

substituted for another in a criminal trial. The

court held that the defendant could not consent to the

substitution, and that his trial in which the substitu-

tion had occurred was erroneous. Although the holding

of that case has, of course, been undermined by the

subsequent holding that the right to a trial by jury

may be waived by a defendant, Patton v. United States,

281 U.S. 276 (1930), the implicit holding of Freeman

that the right to superintendence by a trial judge is

on the same footing with the right to a jury itself

has not been undermined.

That the issue raised in this petition is of

constitutional dimension is also made clear by the

reaction to the proposed federal rule, now embodied as

Rule 25 of the Federal Rules of Criminal Procedure,

when the rule authorizing substitution was being

considered. The United States Supreme Court at that

time raised the question “Has it been considered

whether this rule is constitutional and in any case

whether the policy which might admit of its use in

civil cases should be extended to criminal cases?"

o 52 «

o> te ty? ee

ieee.

Cited in Orfield, Disability of the Judge in Federal

Criminal Procedure, 6 ST. LOUIS UNIVERSITY LAW JOURNAL

159, 151 (1960). This reaction suggests, although it

has, ~f course, never been decided, that Rule 25

estal-tishes minimal Constitutional standards for the

substitution of one judicial official for another

during a criminal trial. If the requirement of

familiarity with the preceedings is not met, the

defendant is deprived of the superintence required by

the Sixth Amendment to the United States Constitution.

Il.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER

THE HARMLESS ERROR RULE FOR CONSTITUTIONAL

FRROR MAY BE EXTENDED TO A VIOLATION OF THE

SIXTH AMENDMENT RIGHT TO TRIAL BY JURY.

Since the doctrine of harmless constitutional

error was first enunciated in Chapman v. United States,

386 U.S. 18 (1967), it has been widely accepted that,

as stated in Chapman, "There are some constitutional

rights so basic to a fair trial that their infraction

can never be treated as harmless error."

It now appears clear that harmless constitutional

error may occur with respect to prosecutorial comment

upon a defendant's failure to take the stand, Chapman

» £3 «

v. United States, 386 U.3. 18 (1967) (dictum), the

admission of co-defendants’ statements in violation of

the Bruton rule, Harrington v. California, 395 U.S.

250 (1969), the admission of an unconstitutionally

obtained post-indictment confession, Milton v. Wainwright,

407 U.S. 371 (1972), the admission of evidence obtained

by an unconstitutional search and seizure, Chambers v.

Maroney, 399 U.S. 42 (1970), the admission of eyewitness

i identification derived from a lineup at which the

right to counsel is denied, U.S. v. Wade, 388 U.S. 218

(1967), and the denial of right to counsel at a preliminary

examination, Coleman v. Alabama, 339 U.S. 1 (1970).

None of the decisions specifying that constitutional

error could be harmless error deal with ihe question

of any right related to the Sixth Amendment right to

a trial by jury. This case affords an opportunity to

consider the harmless error doctrine . applied to the

right to trial by jury.

Petitioner submits that the harmless error

“ —

doctrine cannot apply to the right to trial by jury

or, nore specifically, that portion of the right to

; - 14 -

trial by jury which guarantees a criminal defendant

the superintendence of a judicial official familiar

with the proceedings in the case.

The harmless error doctrine appears to be aimed

either at instances in which the constitutional error

alleged involves the admissibility of evidence or

otherwise does not directly involve the established

truthfinding mechanism of a trial. The petitioner

submits that when the issue is one of failure to have

a judicial official familiar with the record super-

intending trial, there is no opening to raise the

question of whether it would have made a difference

had that judge been there. Instead, superintendence

by an official familiar with the case is so fundamental

to the entire concept of the trial that the possibility

of its harmlessness can no more be raised than could

the possibility of the harmlessness of a defendant's

being tried without a jury when he had not waived jury

or the possibility of the harmlessness of a defendant's

being tried without the ability to cross examine.

» 23 «

CONCLUSION

WHEREFORE, petitioner respectfully prays that a

writ of certiorari by granted.

VAN CAMP, GILL & CRUMPLER, P. A.

Counsel for Petitioner

P Otek e Drawer 1438

Southern Pines, N. C. 28387

(919) 692-2622

- 16 -

a

APPENDIX A

=

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UNITED STATES v. BOSWELL 1544

UNITED STATES of America,

Plaintiff-Appellee,

v.

Frederick Newell BOSWELL, David

Rule Nichols and Emmett Howard

Herndon, Defendants-Appellants.

’ No. 76-1843.

United States Court of Appeals,

Fifth Circuit.

Jan. 12, 1978.

Defendants were convicted before

the United States District Court for the

Southern District of Mississippi, William

Harold Cox, J., of mail fraud and con-

spiracy to commit mail fraud and fraud

by wire, with one defendant also being

convicted of wire fraud, and they appeal-

ed. The Court of Appeals, Coleman, Cir-

cuit Judge, held that: (1) although it

was error to permit magistrate to sit

during four hours of scheduled jury ar-

gument when the presiding judge be-

came ill, such error was harmless where

objections chiefly were to effect that

prosecutor was misquoting testimony

and magistrate informed jury that since

they had heard the testimony they were

the judges of whether it was accurately

quoted and (2) probation could be condi-

tion only on defendant’s reimbursing de-

frauded depositors for their actual loss.

Affirmed in part and remanded in

part

Tjoflat, Circuit Judge, concurred

specially and filed opinion.

1. Criminal Law © 1165(1)

Judges © 25(1)

When trial judge became ill it was

error to permit magistrate to sit during

the scheduled four hours of jury argu-

ment; however, crror was harmless since

defendants were not prejudiced in that

objections mainly went to effect that

prosecutor was misquoting testimony

and magistrate, who had not heard the

evidence, informed jury that since they

had heard the testimony they were the

judges of whether it had accurately been

quoted. Fed.Rules Crim.Proc. rule 2a),

18 U.S.C.A.

2. Criminal Law @982.5(1)

As a condition of probation the dis-

trict court has authority to require a de-

fendant to make restitution to injured

parties for actual loss or damage caused

by the offense for which he stands con-

victed. 18 U.S.C.A. § 3651.

3. Criminal Law c= 1184(4)

Probation imposed following convic-

tion of mail and wire fraud was to be

conditioned on restitution only for actual

loss to defrauded depositors of mortgage

and loan company; hence, correction of

sentence was required where it provided

that probation was contingent on de-

fendant paying full amount of invested

funds within 60 days since state receiver-

ship was still in progress and receiver

was possessed of a substantial sum. 18

U.S.C.A. §§ 1341, 1343, 3651.

4. Criminal Law *772(6)

Refusal to instruct that good faith

was a defense to each count of mail and

wire fraud involving mortgage and loan

company which defendants established

on expanding North Carolina operations

into Mississippi was not error where de-

fendant’s trial evidence as to good faith

went only to conduct in formation and

operation of the North Carolina opera-

tion and the indictment charged fraud

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1978, by WEST PUBLISHING CO

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court

Lind me +

1545

solely with respect to of the

Mississippi 18 USCA.

§§ 871, 1341, 1343.

Appeals from the United States Dis-

trict Court for the Southern District of

Mississippi.

* Before COLEMAN, SIMPSON and

TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

The actors in the course of conduct

which resulted in the convictions herein-

after described were Frederick Newell

Boswell, Emmett Howard Herndon,

David Rule Nichels, and Robert Doran.

was to work in Mississippi and Herndon

on Simi

Doran came to Mississippi and, with

Herndon’s help started Jackson Mort-

gage. Nichols, office manager of Pine-

hurst, gave Doran false credit references

and other advice to help him get started.

After the necessary incorporation was

completed and an advertising format

worked out, Boswell came to Mississippi

to inspect what had been accomplished.

Liking what he saw, Boswell had $5,000

wired from a Pinehurst account to Do-

ran for expenses. Boswell had decided it

would take $15,000 to get the company

started, with the funds to come from

Pinehurst. Nichols constantly checked

on Doran and traveled to Jackson to de-

termine how he was doing his job.

The advertising campaign was kicked

off with ads in newspapers across the

state, promising high interest returns for

UNITED STATES v. BOSWELL 146

money placed with Jackson Mortgage. _ lic. A solicitation letter,’ drafted by

Inquiries began coming in from the pub- Boswell, was mailed in response to those

- &.

* $755 LELUA ORIVE JACKSON, MISSISSIPPI 39216 / TELEPHONE 981-1745

Date

Name

Street

city

Dear

Jackson Mortgage and Loan is a Mississippi financial institution which

provides short-term capital for sound commercial, industriel and residential

properties. Though not federally insured funds invested in Jackson Mortgage

ané Loan have « high safety factor because the bulk of the colleters)

for mortgage loans is Prime Real Estate. All the directors of Jackson

Mortgage and Loan are or have been active in the field of Real Estate

ané bring « total of more than 40 years™ experience in the financing

and development of Real Estate.

compoundeé Gaily, which is an ectual income rete of 9.96% per annum. The

1974 series of investment notes are issued in $50.00 units and are redeemable

after 12 months. For exasple, efter 12 months’ maturity s $500.00 note

earns $49.60; @ $1000.00 nots earns $99.60; # $5000.00 note earns $498.00.

Thirty (30) days prior to the seturity of the 12 month investeent notes,

investors will be notified by mail to inform them, that their investment

notes are Gue to mature, at which time the principal and the interest

will be sent to the investor. We would hope st that time the investor

would choose to invest further with Jackson Mortgege and Loan, Inc. It

is the opinion of Jeckson Mortgage and Loan's certified public accountants

thet there will be no income tax liability until the note msetures and pays

interest even though the interest is compounded daily. Thus, the 1974

series of notes will not mature until 1975 and tax will not be due until 1976.

Jackson Mortgage and Loan's Demand Investrent Notes earn 8.5% compounded daily.

Minimue investment is $50.00. ‘There is a fifteen (15) Gay weiting period on

redemption of demand notes if redeemed prior to dete of maturity.

The mailing address of Jackson Mortgage ané Loan is:

1755 Lelia Drive

Suite 402

Jackson, Mississippi 39216

Please Grop by or call if we may be of further help.

Sincerely yours,

RED/sp

Robert £. Doran

Enclosures President

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posited funds in Jackson Mortgage.

Appropriate motions for judgments of

| acquittal were denied. The appellants

ants were not informed by the Court of

Rule to have

The

himself to the jury and explained the

reason for his presiding in the absence of

the judge. The defense offered no ob-

at that point or at any other time

until after the guilty verdicts were re-

turned. At the close of argument the

judge was able to take the bench and to

instruct the jury, thereafter presiding

for the remainder of the trial.

The defendants correctly argue that

the substitution of the magistrate did

not comply with the mandate of Rule

25a) of the Federal Rules of Criminal

Procedure:

“If by reason of death, sickness or

other disability the judge before whom

a jury trial has commenced is unable

to proceed with the trial, any other

judge regularly sitting in or assigned

to the court, upon certifying that he

has familiarized himself with the rec-

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5 APPENDIX B &

United States Court of Appeals

FOR THE FirtTH Circuit

No. 76-1843

D. C. Docket No. CR-J75-53(C)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDERICK NEWELL BOSWELL,

DAVID RULE NICHOLS and

EMMETT HOWARD HERNDON,

Defendants-Appellants.

Appealsfrom the United States District Court for the . |

Southern District of Mississippi ase Aer? _ *

Before COLEMAK, SIMPSON and TJOFLAT, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

_ record from the United States District Court for the Southern District

of Mississippi, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and adjudged

by this Court that the judgmentsof the said District Court in this

cause be, and the same are hereby, affirmed as to Emmett Howard

lierndon and David Rule Nichols and as to Frederick Newell Boswell

on Count 1; Boswell'’s convictions on Counts 2 and 3 are affirmed and

remanded to the said District Court for further proceedings not

inconsistent with the opinion of this Court. .

January 12, 1978

TJOFLAT, Circuit Judge, concurring specially.

ISSUED AS MANDATE: FEB 23 1978 .

-24-

ee ee ee ee ae

—_— :: APPENDIX C +)

Ynited States Court of Appeals

rirTH CIRCUIT

AS Pee, TEL 804-S80.68'4

EODWARO W. WADSWORTH . OFFICE OF THE CLERK 00 CAMP eTREeT

: c.8se* NEW OFLEAN®. LA T0180

February 15, 1978

TO ALL PARTIES LISTED BELOW:

NO, 76-1843 - U.S.A, v. FREDERICK NEWELL BOSWELL,

ET AL.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition(S) for rehearing? and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

EDWARD W. WADSWORTH, Clerk

Dune tt Naueb

eputy Cle

*ton behalf of appellants,

bmh

cc: Messrs. Edward T. M. Garland

Frank Joseph Petrella

Mr. Sam Johnson

Mr. L. Breland Hilburn

Messrs. James B, Tucker

Robert E. Hauberg

~~ ~

=2$=

et

2

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

UNITED STATES OF AMERICA

vs. CRIMINAL NO. J75-53(C)

FREDERICK NEWELL BOSWELL,

EMMETT HOWARD HERNDON and

DAVID RULE NICHOLS

ORDER WITHDRAWING SURRENDER ORDER

This day this cause came on to be heard and it

appearing to the Court that the appeal of Frederick Newell

Boswell was affirmed by the Court of Appeals for the Fifth

Circuit and that through inadvertence, the attorney for

Frederick Newell Boswell, was not notified of the affirmance

or the Surrender Order issued by this Court and has now on

file a Petition to Stay the Mandate and was scheduled to have

a hearing before Honorable J. P. Coleman, Judge of the Court

of Appeals, but that due to a death in his family, said

hearing has been rescheduled;

It further appearing to the Court that a Surrender

Order was issued requiring the Appellant and Defendant below

to surrender to a United States Marshal on March 20, 1978,

and due to the circumstances, the Surrender Order issued by

this Court is hereby stayed until further order.

SO ORDERED this the 14th day of March, 1978.

UNITED STATES DISTRICT JUDGE

~26<

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR TRE FiFTH CIRCUIT

NO. 76-1843 Are 1 ‘n7p

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDERICK NEWELL BOSWELL,

DAVID RULE NICHOLS and

EMMETT HOWARD HERNDON,

Defendants-Appellants.

AppealSfrom the United States District Court for the

Southern District of Mississippi

ORD E R:

&

(X)

The motion of

for recall and stay of the Issuance of the mandate pending petition

for writ of certiorari is DENIED. See Fifth Circuit Local Rule 15,

aa amended January 11, 1872.

The motion of appellent, FREDERICK NEWELL BOSWE

for recall and stay © @ issuance of the mancate pen

for writ of certiorari is GRANTED to ani including

the stay to continue in force until the final dispo

case by the Supreme Court, provided that within the period above

mentioned there shall be filed with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the certiorari

petition has been filed. The Clerk shall issue the mandate upon

the filing of a copy of an order of the Supreme Court denying the

writ, or upon the expiration of the stay granted herein, unless

the above mentioned certificate shall be filed with the Clerk of

this Court within that time.

(2. Colomaw _

ITED STATES CIRCUIT JUDGE

=27=

CERTIFICATE OF SERVICE

This is to certify that cro (2) true and correct

copies of the foregoing Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth

Circuit were this date served on the attorney of

record for Respondent, and on the Solicitor General,

pursuant to Rule 33(1) and (2)(a) of the Pules of the

Supreme Court of the United States, by depositing two

(2) copies of same in the United States Mail, postage

prepaid, addressed to:

James B. Tucker, Esquire

United States Attorney

United States District Courthouse

for the Southern District of Mississippi

Jackson, Mississippi

The Solicitor Generel

Department of Justice

Washington, D. C. 20530

This the 14th day of April, 1978.

James R.j Van Camp

Post Office Drawer 1438

Worn Pines, N. C. 28387

919) 692-2622