# Opposition — Chambers v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 981

## Text

j —se a Vw we Ey

FILED
NOV 8 1978

Nos. 78-328 and 78-333 MIGHAEL RA@DAK, JR., CLERK

In the Supreme Court of the United States

OcTOBER TERM, 1978

Jot HENRY CHAMBERS, PETITIONER
V.

UNITED STATES OF AMERICA

CHARLES THOMAS GRIFFIN, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
IN OPPOSITION

WapeE H. McCree, Jr.
Solicitor General

Puitie B. HEYMANN
Assistant Attorney General

Joserpu S. Davies, Jr.
KAREN A. REBROVICH
Attorneys
Department of Justice
Washington, D.C. 20530

— —

INDEX

Page
IA SSRIS Men oe AON Ce oO Or |
IE Bla Suh Caos cencuntenintaliunalignrassvneseiddeeieesénsdenbes |
I a ssbb capaiudiaunne 2
TINE. Ghdntudietuenusdsasunnceneenisinaserecssevecssegussosescesnooteneens 2
PEED. sriucbvcndsnneskiavesniseecevvarnsnesoeseontatessenseversesnczeeesess 6
INI © ic ALUmALAUE Aa veua'cede sileataabuocenayivescanstiesbnesuasasiote 15
CITATIONS
Cases:
Beaudine v. United States, 368 F.2d 417 coco 14
Brady Vv. Maryland, 373 U.S. 83 ccccccccccccccccsseees 14
Brown v. United States, 411 U.S. 223 vce ]
Bruton v. United States, 391 U.S. 123 ccc 7
Hamling v. United States, 418 U.S. 87 ccc 10
Mack v. Maggio, 538 F. 2d 1129 vcccccccccccccssseeens x
Neison V. GD’ Neti, GZ U.S. G22 scscccscssvcccerecccccecees x
Schneble v. Florida, 405 U.S. 427 vcccccccccccesceeeees y)
United States v. Alvarez, 519 F. 2d 1052,
POTN, es Ge ete UW cevccncesessccccsvesccsecesseees 7
United States v. Baumgarten, 517 F. 2d
1020, cert. denied, 423 U.S. 878 cirsccccccccsceseees 12
United States v. Beechum, 555 F. 2d 487,
reh. en banc granted, No, 76-1444
EE Tr PIE ccs cco uvesuaudbevabinscndecepevnerensies 12
United States v. Benedetto, 571 F. 2d
Sciatic dcancrssseaibneaaraasdacesberevunssvasvesieddcssnaccsestnene 11

3 iti
ll
Page Page
Cases (continued):
Case Continued: United States v. Trudo, 449 F. 2d 649,
t. ied, Nee tees
United States v. Burke, 495 F. 2d 1226 wcccscssses. 7 Peay: pas . nite i. a '
t tat . Wi , , ;
United States v. Chenaur, 552 F. 2d 294 ......... I on denied, 423 pgs ane : intl ee. 7
United States v. Crockett, 534 F. 2d S589 we lI United States ex rel. Duff v. Zelker,
United States V. Dad, 536 F. 2d 675 vicccccccccccees 7 452 F. 2d 1009, cert. denied, \
ited Gis Dee st ee 9 Se ae Pe ein icesibniccces ccc vceceese x
Pe pits ak United States ex rel. Nelson v. Follette
United States v. Fairchild, 526 F. 2d 185, ,
cert. denied. 425 U.S. 94? ee ed RR 11 430 F, 2d 1055 POPU eR UES SESE CSSOOSOOSOOSOOOCCOSCCOCOCTOTOCCCe err eT 7
a United States ex rel. Stanbridge v. Zelker
; s Vv. Hykel. 461 F. Fad ‘tnldaditoecs : ;
United States v. Hykel. 461 F. 2d 721 4 514 F. 2d 45, cert. denied, 423 U.S. 872. ........ §
United States v. Kahn, 381 F. 2d 824, cert. ees
denied ae ee 10 Constitution, statutes and rules:
United States.v. Lawson, 483 F. 24 $35. United States Constitution, Sixth Amendment ... 7
cart. Gebied. €16-US. FIRE cctsccurtetesistteccsonean 9 Fr a rs... cosececeeeceeee ae
oy States v. Leopowitch, 318 U.S. . Fe Ny MI ettteeadicicconsccacsecesss.. 2, 3, 10, 4
NT cin” Cot Reed Peano | ic cosccocses. 3, 12, 13
United States v. Maestas, 554 F. 2d 834, Fed. R. Crim. P. 7
cert. denied, 43] U.S. 972 Re 1] ed. e rim, ’ (c) OPP eee eee eee eee eee cece eee ey 10
nied Sens \. Ie. 008 8 POG Ti Te i etssrrtictessesesesspesescesosvessecscsessseee 12
Cert. denied, 396 U.S. 100] v.cccccccssscsessesssseeees 1! FO ee eas eiiscssccceeesesasovesccoreesee 11, 12
United States v. Matlock, 415 U.S. 164 cccccccssece. 9 Os Bi I Gicssticiccdccsevecsocscceceseceeessceesse 1]
United States v. Quinn, 365 F. 2d 256 wn. 10 Lik ig 14
United States v. Shaw, 518 F. 2d 1182. v..cccee 8 SE )
United States v. Sims, 430 F. 2d 1089) cccccccscseees 8 Miscellaneous:
United States v. Smith, 451 F. 2d 595 ccc 8 2 Weinstein's Evidence (1977) para. 404 [09],
United States v. Spinks, 470 F. 2d 64, cert. TD senssanehasseeiiasiebabinetdanenietenshbcscecéncccescocccsscees 11
Gomes, GOD U.S; BOG ccisscassecesssascslcsnstanae x

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-328
Joe HENRY CHAMBERS, PETITIONER
Vv.

UNITED STATES OF AMERICA

No. 78-333
CHARLES THOMAS GRIFFIN, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 13-31)!
is reported at 579 F. 2d 1104.

JURISDICTION

The judgment of the court of appeals was entered on
June 29, 1978. Petitions for rehearing were denied on July

‘All appendix references are to the appendix filed by petitioner
Chambers (No. 78-328).

(1)

28, 1978 (Pet. App. 32-33). The petitions for a writ of
certiorari were filed on August 25, 1978 (No. 78-328) and
August 28, 1978 (No. 78-333). The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the government’s use at trial of co-
conspirators’ false exculpatory statements denied peti-
tioners either the right of confrontation or a fair trial.

2. Whether Counts II and III of the indictment
sufficiently informed petitioners of the charges against
them.

3. Whether evidence of prior similar acts was properly
admitted.

4. Whether evidence of petitioners’ attempt to cover up
their fraud was properly admitted.

5. Whether there was sufficient evidence in the record
to support petitioner Griffin’s conviction on Count V.

6. Whether the trial court properly instructed the jury
on the elements of a fraudulent receipt as set forth in 18
U.S.C. 1006.

7. Whether petitioners were improperly denied access to
allegedly exculpatory material.

STATEMENT

Following a jury trial in the United States District
Court for the Eastern District of Arkansas, both peti-
tioners were convicted, together with co-defendant Bill
Hansell, of conspiring to defraud and actually defrauding
a federally-chartered loan association, in violation of 18
U.S.C. 371 and 1006. Petitioners Griffin and Hansell were
also convicted of preparing a false loan application for the
purpose of influencing the actions of a loan association, in

violation of 18 U.S.C. 1014 and 2.2 Petitioner Griffin
received concurrent terms of 15 months’ imprisonment on
each of the three counts on which he was convicted and
was fined a total of $20,000. Petitioner Chambers also
received concurrent terms of 15 months’ imprisonment on
each of the two counts on which he was convicted and
was fined a total of $7,500. The court of appeals affirmed
(Pet. App. 13-31).

The evidence showed that Griffin, Chambers, and
Hansell, who were, respectively, president, vice-president,
and a branch manager of the Lonoke Production Credit
Association (LPCA),’ conspired to defraud the associa-
tion by making unlawful profits in connection with an
LPCA loan transaction. Specifically, petitioners con-
ditioned an LPCA loan on the borrower's purchase of
petitioners’ land at a_ substantially inflated price.‘
Concomitantly, petitioners fraudulently arranged a
second LPCA loan to cover the purchase price of the
land.

2Count | charged all three defendants with conspiracy to
fraudulently receive funds of a federally-insured loan association, in °
violation of 18 U.S.C. 371 and 1006. Count II charged only petitioner
Griffin, Count III] charged only petitioner Chambers, and Count IV
charged only co-defendant Hansell with defrauding a federally-
insured loan association, in violation of 18 U.S.C. 1006. Count V
charged all three defen’ nts with preparing a false loan application,
in violation of 18 U.S.C. 1014 and 2. The jury found defendants
guilty of all counts, except that it acquitted Chambers on Count V.
Hansell did not join in petitioners’ appeal to the Eighth Circuit.

The LPCA is a farmer-owned and controlled loan association
organized under the Farm Credit System and designed to provide
short and intermediate term credit to farmers in the association's
federally chartered “territorv’"—four centrally located Arkansas
counties (Pet. App. 16; | Tr. 60, 63-64). The LPCA is supervised by
the Federal Intermediate Credit Bank of St. Louis, Missouri, whose
approval is required for lending money for use outside the asso-
ciation’s territory or to an individual borrower beyond the asso-
ciation’s “excess loan limit” (I Tr. 59-60, 109, 119).

‘The land was purchased by petitioners but held in the name of
O.M. Young, Trustee (Pet. App. 17).

Petitioners’ conspiracy began in early 1974 when
Hansell informed Harold Huntsman, a large farm
operator, that his previous application for loans from the
LPCA had been denied because the Federal Intermediate
Credit Bank in St. Louis had objected to Huntsman’s
insufficient land holding in LPCA “territory” (Il Tr. 173-
178). Pursuant to Hansell’s instructions, Huntsman began
purchasing additional property within LPCA territory in
order to obtain LPCA financing, but he again was unable
to secure a crop loan for the 1974 season (II Tr. 174-179,
184-188). Subsequently, in July 1974, Hansell approached
Huntsman and guaranteed him that the necessary funding
would be forthcoming from LPCA if Huntsman would
purchase a 2,880-acre cattle farm currently for sale, albeit
outside the LPCA territory (II Tr. 185-198; III Tr. 140-
142; IV Tr. 61-62, 63-64). Hansell, who told Huntsman
that “Mr. Griffin was waiting for [his] decision” (II Tr.
193), additionally promised that Huntsman would lose no
money on this deal and that an LPCA “crop loan” would
be arranged to cover the purchase price (II Tr. 193-196,
202; IV Tr. 64-65). Unbeknownst to Huntsman, this
2,880-acre farm had recently been purchased by
petitioners from Irving Brauer through a trustee for
$470,000 (Pet. App. 17-18; II Tr. 123-128, 198; IV Tr. 68).

Ultimately, Huntsman and his family agreed to buy the
farm for $634,000, at which time Hansell prepared an
LPCA crop loan application for $513,800, which pur-
ported to cover crops to be grown on the 2,880-acre cattle
farm (Pet. App. 17-18; Il Tr. 193-201). Subsequently, this
loan application was approved by the Association Loan
Committee (including petitioner Griffin) (1 Tr. 104-105),
and on July 24, 1974, after Huntsman had signed a
contract purchasing the farm from O.M. Young, Trustee,

‘A crop loan is used to finance the planting and harvesting of a
crop and iy repaid out of the proceeds of the sale of the crop (I Tr.
114-115; Il Tr. 47-48, 93).

5

and assuming various debts in connection therewith (II
Tr. 197-201), Huntsman received two checks constituting
the proceeds of the crop loan. One check was issued in the
amount of $121,433.33 made payable to Huntsman and
the Bank of McCrory in order to obtain a release of an
existing crop lien (1 Tr. 110-112; Il Tr. 64-65; Pet. App.
18). Hansell refused to give Huntsman the second check,
which was issued in the amount of $386,600,° until
Huntsman arranged to give Hansell a cashier's check for
$292,319.18, made out to O.M. Young, Trustee, as down
payment on the 2,880-acre farm (Pet. App. 18; II Tr. 196,
202-207; IV Tr. 166-169). Two days later, the trustee paid
over $71,000 each to Griffin and Hansell, and $20,000 to
Chambers (Pet. App. 18; IV Tr. 189-190).’

Petitioners’ scheme began unraveling in December
1974 when Brauer, the previous owner of the farm,
discovered that Huntsman was the current
owner of the farm and contacted Huntsman over a past
due payment (II Tr. 133-135; IIL Tr. 32). Huntsman
had neither the money nor the inclination to meet
this installment of the sales contract and told
Brauer to contact Hansell at the LPCA for payment
(11 Tr. 133; Ul Tr. 32-35). Thereafter, Huntsman
learned of the large difference between Brauer’s
selling price and his own purchase price (II Tr.
133-135; Ill Tr. 35-36), and apparently by March
1975 Huntsman also knew that petitioners had been
the equitable owners of the 2,880-acre farm (Pet.
App. 19).

‘The difference between the total of the two checks ($508,033.33)
and the loan amount ($513,800) was attributable to fees and
insurance premiums (I Tr. 112-113).

*Huntsman's purchase price of $634,000 was $164,000 more than
the price paid by petitioners to the prior owner Irving Brauer. A total
of $162,000 was divided among the co-defendants as described above,
and $2,000 was retained by Young, who died in 1976 (IV Tr. 185-186,
189-190).

At this time, Hansell approached Huntsman in order to
cover up the fraud. Hansell admitted that the LPCA
officers had unlawfully made a profit on the loan
transaction and told Huntsman that he (Hansell) would
do anything if Huntsman would not go to the FBI (Pet.
App. 19; III Tr. 48-51; IV Tr. 139-146). Later that day,
Jimmie Boggess, a friend of petitioners, called Huntsman
and eventually arranged to buy the farm from Huntsman
for $662,000 (Pet. App. 19; III Tr. 52-60; IV Tr. 67-70).
This sale was consummated in Young's office with
petitioner Chambers, Young, Boggess, and Huntsman
present (Pet. App. 20; III Tr. 63-65). Petitioners and
Hansell supplied the purchase money and subsequently
induced Boggess to give a false statement to the
government investigators concerning the circumstances [
the purchase (Pet. App. 20; VI Tr. 46-61).

ARGUMENT

|. Petitioners raise several questions (Chambers Pet.
11-19; Griffin Pet. 14-17) concerning the use at trial of the
co-defendants’ written and signed statements given to
government investigators regarding the Huntsman loan-
sale transactions. These parallel statements, which were
redacted to delete any reference to a co-defendant before
being admitted into evidence, essentially told the same
false exculpatory story (Pet. App. 21; V Tr. 131-188;
Gov't Exhs. 63. 64, 65, 66. 67, 68). Thus, each defendant®
claimed that Boggess had found a farm for sale and had
invited him to participate in the speculative venture,
which invitation was accepted. Thereafter, according to
the defendants’ story, each defendant received his
proportionate share of the profits when Boggess and
trustee Young arranged for the sale to Huntsman. Each

‘Boggess gave the same story to investigators, and his statement in
unredacted form was admitted into evidence during Boggess’ direct
testimony on behalf of the government (V1 Tr. 37-58, Gov't Exh. 69).

defendant disclaimed more than a cursory knowledge of
the specifics of the Huntsman loan and denied that the
loan had any connection to the sale of property. At trial,
Boggess and Hansell took the witness stand and admitted
that their statements were false, and Boggess testified that
the three defendants had supplied him with the false

_ exculpatory story subsequently given to the government

investigators (VI Tr. 38-62; VIII Tr. 21, 144-145, 156-157).

a. Petitioners contend (Chambers Pet. | 1-14; Griffin
Pet. 14-16) that this Court's opinion in Bruton v. United
States, 391 U.S. 123 (1968), mandates a new trial here.
However, Bruton involved the admission of a defendant's
confession that “powerfully” and “devastating{ly]” in-
criminated his co-defendant, who was also on trial. /d. at
135-136. Since the defendant whose confession was
admitted did not testify, this Court held that the co-
defendant's rights under the Confrontation Clause of the
Sixth Amendment had been violated. /d. at 128. In
contrast, the statements admitted here were exculpatory
in nature, see United States v. Wingate, 520 F. 2d 309,
313-314 (2d Cir. 1975), cert. denied, 423 U.S. 1074 (1976):
United States v. Burke, 495 F. 2d 1226, 1232-1233 (Sth
Cir. 1974); United States ex rel. Nelson v. Follette, 430 F.
2d 1055 (2d Cir. 1970), and, moreover, were redacted to
delete any reference to a co-defendant, thereby avoiding
the Bruton problem. See Bruton v. United States, supra,
391 U.S. at 133-134 n.10; accord, e.g., United States v.
Dady, 536 F. 2d 675 (6th Cir. 1976); United States v.
Alvarez, 519 F. 2d 1052 (3d Cir.), cert. denied, 423 U.S.
914 (1975); United States v. Trudo, 449 F. 2d 649 (2d
Cir.), cert. denied, 405 U.S. 926 (1972).

Furthermore, petitioners cannot demonstrate any
cognizable prejudice from the admission of their
statements. Boggess and Hansell testified at trial, which
rendered their complete statements fully admissible.
Nelson v. O'Neil, 402 U.S. 622 (1971); United States v.
Smith, 451 F. 2d 595 (9th Cir. 1971); United States v.
Sims, 430 F. 2d 1089 (6th Cir. 1970). Those statements
tracked and interlocked with Chambers’ and Griffin's
false accounts, which were at least admissible against their
respective makers. Thus, the only prejudice possibly
suffered by Chambers stems from the spillover effect of
Griffin's exculpatory statement, the substance of which
had already been properly admitted against Chambers in
the form of three other statements including his own.
Similarly, of course, Griffin's alleged prejudice emanates
from the insignificant cumulative effect of Chambers’
exculpatory statement. In such circumstances, petitioners’
Sixth Amendment claim is without merit.? Mack v.
Maggio, 538 F. 2d 1129 (Sth Cir. 1976); United States v.
Shaw, 518 F. 2d 1182 (4th Cir. 1975); United States ex rel.
Stanbridge v. Zelker, 514 F. 2d 45 (2d Cir.), cert. denied,
423 U.S. 872 (1975); United States v. Spinks, 470 F. 2d
64 (7th Cir.), cert. denied, 409 U.S. 1011 (1972); United
States ex rel. Duff v. Zelker, 452 F. 2d 1009 (2d Cir.
1971), cert. denied, 406 U.S. 932 (1972).

‘Nor is there any merit to petitioners’ contention (Chambers Pet.
17-18; Griffin Pet. 16) that the district court erred in failing to charge
the jurors concerning the limited admissibility of the redacted
statements. The co-defendants’ statements were read to the jury in
rapid succession (V Tr. 159-187). After the first statement was
admitted, the judge correctly instructed the jury that such a statement
was “received only as to the defendant whose statement it is” (V Tr.
164). Petitioners did not request that this warning, which was
applicable to all three statements. be repeated when their statements
were introduced into evidence moments later. Moreover. the court

had previously given a similar instruction and = subsequently
reiterated this admonition in its charge to the jury (ID Tr. IS81-184:
XI Tr. 20).

9

b. Petitioner Chambers contends (Pet. 12-13) that the
prosecutor committed prejudicial error in his opening
statement by summarizing portions of the co-defendants’
unredacted statements (Opening Tr. 22-30). However, as
the court of appeals noted (Pet. App. 20-21), petitioners
never objected to the prosecutor's opening argument or
moved for a mistrial, and they are thus deemed to have
waived their objection. United States v. DeRosa, 548 F.
2d 464, 471-472 (3d Cir. 1977); United States v. Lawson,
483 F. 2d 535, 538 (8th Cir. 1973), cert. denied, 414 U.S.
1133 (1974). In any event, this alleged error was harmless
beyond a reasonable doubt. As already stated, the
unredacted statements of Boggess and Hansell were
admissible, and Chambers’ own statement was admissible
against himself. Griffin's statement was not admissible
against Chambers, but Griffin's own counsel “in opening
statement admitted nearly all of the facts referred to in
Griffin's statement” (Pet. App. 21; see Opening Tr. 40-44).
Given the cumulative, interlocking and exculpatory
nature of the statements, the strength of the prosecution's
case, and the trial court's curative charge,'® the
prosecutor’s remarks do not constitute plain error. See
Brown v. United States, 411 U.S. 223-230-232 (1973);
Schneble v. Florida, 405 U.S. 427 (1972).

c. Petitioners next argue (Chambers Pet. 14-17; Griffin
Pet. 16-17) that the defendants’ written statements were
not made in futherance of the conspiracy and are
therefore inadmissible hearsay. However, Fed. R. Evid.
801(d 2A) provides that “[a] statement is not hearsay
*** offered against a party and is *** his own
statement.” Since the defendants’ own statements were
admitted solely against the respective declarant (V Tr.
164; XI Tr. 20), petitioners’ claim is unavailing. See, e.g.,
United States v. Matlock, 415 U.S. 164, 172 & n.8 (1974).

The court instructed the jurors to consider only the evidence
adduced at trial and not the lawyers’ statements (XI Tr. 3-4, 6).

10

2. Petitioners further contend (Chambers Pet. 19-24,
Griffin Pet. 7-9) that neither Count II (Griffin) nor
Count II (Chambers) sufficiently charged a violation of
18 U.S.C. 1006. However, those counts (Pet. App. 7-8)
fairly informed petitioners of the charges against them by
concisely alleging the elements of the crime and the
pertinent underlying facts including the time, place,
manner and perpetrators of the fraudulent transaction.
See Fed. R. Crim. P. 7(c). Since the indictments enabled
petitioners to prepare a defense to the specified charges
while adequately protecting petitioners from future
prosecutions for the same offense, the court of appeals
correctly rejected petitioners’ claims on this point (Pet.
App. 21-22). Hamiing v. United States, 418 U.S, 87, 117
(1974),

Although, as petitioner Chambers points out (Pet. 23-
24), the Seventh Circuit once dismissed a four-count
indictment which included a Section 1006 count similar to
those challenged here (United States v. Quinn, 365 F. 2d
256 (7th Cir, 1966)), the rationale of that case, which was
decided before Hamling v. United States, supra, is not
readily discernible.'' More importantly, the Seventh
Circuit subsequently construed Quinn to require only that
a Section 1006 indictment not “chargfe] and convic[t] an
individual for no more than maladministration, mistake
or ineptitude.” United States v. Kahn, 381 F. 2d 824, 832
(7th Cir.), cert. denied, 389 U.S. 1015 (1967). Since
Counts Il and III correctly averred the underlying facts
and the elements of the charge, including that petitioners
had acted with an “intent to defraud” (Pet App. 7-8), the
Quinn rationale is inapplicable here. United States v.

The court in Quinn noted, inter alia, that one of the Section 1006
counts failed to aver that the defendant had received money in
‘onnection with the bank transaction and also that the entire
indictment was invalid because of misjoinder problems, 365 F, 2d at
262-264,

Chenaur, 552 F. 2d 294, 300-301 (9th Cir, 1977) (expressly
rejecting Quinn).

3. Petitioners also argue (Chambers Pet. 24-32; Griffin
Pet. 12-13) that the trial judge abused his discretion in
allowing the prosecution to introduce into evidence other
similar criminal acts by the petitioners. After three
pretrial hearings concerning the admissibility of such
evidence, the district court limited the prosecution to
those prior acts that involved a fraudulent loan transac-
tion closely analogous to that charged in the indictment
(Pet App. 25). Thus, the testimony challenged by
petitioners clearly and convincingly demonstrated that on
at least two other occasions petitioners had defrauded
L.PCA by deceptively financing the profitable purchase or
sale of land in which they had an interest (Pet App. 25; V1
Tr. 177-214, 221-227). Such similar acts were properly
admitted by the district court to prove petitioners’
knowledge and intent—the issues most strenuously
contested by petitioners at trial. Fed. R. Evid. 404(b); e.g.,
United States v. Crockett, 534 F. 2d 589, 604-605 (Sth Cir,
1976); United States v. Maine, 413 F. 2d 214 (7th Cir,
1969). cert. denied, 396 U.S. 1001 (1970); 2 Weinstein's
Evidence. para, 404 [09], at 404-50 to 404-53 (1977),
Moreover, given the strong probative worth of this
evidence, the district court did not abuse its broad
discretion under Fed. R. Evid. 403 in admitting the
similar acts testimony. See, e.g., United States v. Maestas,
554 F. 2d 834, 836 (8th Cir.), cert. denied, 431 U.S, 972
(1977); United States v. Fairchild, 526 F. 2d 185, 189 (7th

Cir, 1975) (Stevens, J.), cert. denied, 425 U.S, 942
(1976)!,

Petitioner Chambers erroneously suggests (Pet, 24-28) that a
conflict exists among the courts of appeals because some of the
circuits have concluded that their prior precedent is consistent with
Rule 404(b) while others may have been more stringent about other
crimes evidence before Rule 404(b) codified the inclusionary
approach to the issue, See United States v. Benedetto, 571 F, 2d 1246,

12

4. Petitioners also challenge (Chambers Pet. 19, 3);
Griffin Pet. 11) the admission of testimony concerning
their repurchase of the Huntsman farm. However,
evidence of the “buy back", which was prompted by
petitioners’ desire to keep Huntsman from going to the
authorities, was certainly relevant to show petitioners’
knowledge and intent. See Fed. R. Evid. 401. Indeed, in
connection with the repurchase, defendant Hansell
confessed his wrongdoings to Huntsman (Pet App. 19; II]
Tr. 48-51; IV Tr. 139-146), while Boggess’ testimony
convincingly evidenced petitioners’ knowing participation
in the fraudulent transaction (Pet. App. 19-20; VI Tr. 30-
67). Finally, in an excess of caution, the trial judge
repeatedly admonished the jurors that they could only
consider this evidence with regard to the substantive
counts (III Tr. 20-32; 52-53; V Tr. 27; VI Tr. 44, 66).
Accordingly, the court of appeals correctly concluded
(Pet. App. 23-24) that the district court had not abused its
broad discretion in admitting the repurchase evidence.
Fed. R. Evid. 401, 403; see, ¢.g., United States v.
Baumgarten, 517 F. 2d 1020, 1027-1030 (8th Cir.), cert,
denied, 423 U.S. 878 (1975).

5. Next, petitioners contend (Chambers Pet. 32-34;
Griffin Pet.9-11) that there was insufficient evidence to
support a conviction on Count V of the indictment
regarding the filing of a false loan application for the
purpose of influencing LPCA in violation of 18 U.S.C.
1014 and 2. At the outset, we note that petitioner
Chambers was acquitted of this charge and has no cause
for complaint. Moreover, the evidence adduced at trial
amply justified the district court's decision to submit

1248 (2d Cir, 1978). Moreover, none of the cases cited by petitioner,
including United States \. Beechwmn, 555 Fb. 2d 487 (Sth Cir, 1977),
reh. en bane granted. No, 76-1444 (Nov, 3, 1977), is in conthet with
the result here, which involved convincing prool of similar traudulent
schemes.

13

Count V to the jury regarding all defendants. The
Huntsman loan application, which was prepared by
Hansell, stated that the borrower sought a “crop loan.”
(Pet. App. 17-18; Il Tr. 193-201; Gov't. Exh. 7). In
actuality, of course, the proceeds of the crop loan !} were
used to pay for the 2,880-acre cattle farm which
Huntsman had been forced to purchase by petitioners as a
condition precedent to any further LPCA financial
assistance, Indeed, Hansell would not disburse the
proceeds of the loan until Huntsman had arranged for the
transfer of a $292,000 cashier's check to him for the
purchase of the property (Il Tr. 202-207). The evidence
further showed that petitioners had denominated the
transaction as a crop loan to avoid various purchase loan
(mortgage) approval requirements of the bank, such as
appraisals and supervisory bank approval of an out-of-
territory purchase loan (1 Tr. IIS, 119-120; Il Tr. 22-23).
Finally, Griffin, who knew that the loan was to be used to
cover the purchase of the property (II Tr. 193), sat on the
loan committee that approved Huntsman’s crop loan
application (Pet. App. 17, 23). In sum, when viewed most
favorably to the government, the evidence strongly
supported the jury's finding that Griffin had violated
Section 1014,

6. Petitioner Chambers raises several objections (Pet.
34-39) to the district court's jury instructions concerning
the phrase “intent to defraud” found in Section 1006 (XI
Tr. 23-24). Specifically, petitioner claims that the charge
would have permitted the jury to convict him for an

'SPetitioners argue that the bank does not force the recipient of a
crop loan to use those proceeds for crop production and that
therefore the loan application was not false. However, here
petitioners forced Huntsman to use his crop loan to purchase the
farm and there was substantial evidence that a crop loan is governed
by different regulations from a “real estate” loan and cannot be used
to purchase real estate--facts which petitioners obviously knew from
their experience as bank officers (Pet. App. 17 n.2; 1 Tr. 114-116,
119; IL Tr, 47-48, 93-94; IV Tr, 9-11, 95).

14

unknowing violation of bank regulations. But the trial
judge correctly informed the jurors that in evaluating the
issue of intent they could consider petitioners’ “failure to
comply with the applicable regulations and bylaws of
[LPCA] which were known to said defendant * * *” (XI
Tr. 24; emphasis supplied). Equally unavailing is
petitioners’ implication (Pet. 37) that in order to convict,
the jurors had to find that the petitioners’ fraud ultimately
caused a financial loss. United States v. Hykel, 461 F. 2d
721, 725 (3d Cir. 1972); see United States v. Leopowitch,
318 U.S. 702, 704 (1943). Finally, the district court's use
of the word “benefit” in this portion of the charge is
certainly unobjectionable, since Section 1006 uses
“benefits” in broadly defining the coverage of that
provision. As the court of appeals concluded, the trial
judge carefully and correctly instructed the jurors
regarding fraud as defined in Section 1006. See United
States Vv. Hykel, supra, 461 F. 2d at 724; Beaudine v.
United States, 368 F. 2d 417, 420 (Sth Cir. 1966).

7. Lastly, petitioners’ contention (Chambers Pet. 39-40;
Griffin Pet. 13-14) concerning the nondisclosure of certain
LPCA minutes is without merit. The allegedly ex-
culpatory material consisted of a supervisory bank
officer’s opinion based on personal surmise (see VI Tr.
118-119) that no criminal violations had occurred (VI Tr.
116-117). Such an opinion was inadmissible at trial. See
Fed. R. Evid. 701. Moreover, the record unequivocally
reflects that the government had neither possession nor
knowledge of this particular portion of the minutes, which
were equally accessible to defense counsel (VI Tr. 25-28,
113-141). Furthermore, defense counsel (as well as the
prosecution) had the benefit of this material nine days
before the tiial concluded. In such circumstances,
petitioners’ claim based on Brady v. Maryland, 373 U.S.
83 (1963), is frivolous.

15

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

NOVEMBER 1978

DOJ-1978-11

WADE hi. McCres, Jr.
Solicitor General

Puitiep B. HEYMANN
Assistant Attorney General

JosePH S. DAvies, JR.
KAREN A. REBROVICH
Attorneys

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1601%3A3. Public record. Not legal advice.