# Petition — Boswell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 819

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0917%3A1. Public record. Not legal advice.