Petition — Grider v. United States

Supreme Court, U. z

FILED

| SEP 12 1978

——

MICHABL RODAK, JR., CLERK_|

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1978

78-416

GENE GRIDER - - - . . - Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DON H. MAJOR

G. MURRAY TURNER

MULHALL, MAJOR, TURNER, TAYLOR & HOFFMAN

440 South Seventh Street

Louisville, Kentucky 40203

(502) 584-6375

Counsel for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

AS

PAGE

PGE oo. tn beak hal a ec ew caghe Paebeees 1

I ee Dare a SS wis CEA n ase BARA an he 1

Questions Presented for Review ................... 2

Constitutional Provisions and Statute Involved ...... 2- 3

I IIE 5 eco) cena ca aca dum ne Canes 3 4

Reason for Granting the Writ ..................... 4-7

NEI, 20, Se vs v6 i u0'c oliscs wire 69 duane 7

Appendices:

A. Judgment of the Court of Appeals ............ 4

B. Judgment on Petition for Rehearing .......... 10

I 80s ces sues va 5 nah cada anne 11

LIST OF AUTHORITIES CITED

PAGE

Davis v. Alaska, 415 U.S. 308 (1974) ............... 5

Douglas v. Alabama, 380 U.S. 415 (1965) ........... 5

Greene v. McElroy, 360 U.S. 474 (1959) ........... ; 5

Pointer v. Texas, 380 U. S. 400 (1965) .............. 5

Stone v. United States, 506 F. 2d 561 (8th Cir. 1974),

OE a er ee ee eee 7

United States v. Ballard, 535 F. 2d 400 (8th Cir. 1976) 6

United States v. Four Star, 428 F. 2d 1406 (9th Cir.

1970), cert. denied, 400 U. S. 947 ................ 6

United States v. Harris, 521 F. 2d 1089 (7th Cir. 1975) 6

United States v. McCoy, 517 F. 2d 41 (7th Cir. 1975),

GG, Me MD Ws Hs I onc cccctecosccvececncs 7

United States v. Rabb, 453 F. 2d 1012 (3rd Cir. 1971),

GOD. We Fee LO CAE, BUTE) occ cer sccccccccees 5, 6

United States v. Tager, 481 F’. 2d 97, 1101 (10th Cir.

ee A ei teas eens hie 4,6

Fifth Amendment, United States Constitution ....... 2

Sixth Amendment, United States Constitution ...... 2

EE Se eee Te ere ee eee 2- 3

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1978

GENE GRIDER . - : « . = Petitioner

vs

UNITED STATES OF AMERICA - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GENE GRIDER, Petitioner, prays that a writ of cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit, entered

in this case on July 10, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix

A, p. 9) and its opinion on Petition for Rehearing

(Appendix B, infra, p. 10) are not yet reported. The

opinion of the District Court below (Appendix C,

p. 11) was not reported,

JURISDICTION

The judgment of the Court of Appeals below (Ap-

pendix A, p. 9) was entered on July 10, 1978. The

judgment on Petition for Rehearing was entered on

August 11, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1),

2

- QUESTIONS PRESENTED FOR REVIEW

1. Whether a defendant in a criminal proceeding

is effectively denied his Sixth Amendment right to con-

frontation of a witness, when a trial court rereads a

very limited portion of a government witnesses’ testi-

mony which includes incriminating statements alleg-

edly made by the defendant without also rereading

cross-examination testimony.

2. Whether a defendant in a criminal proceeding

who exercises his Fifth Amendment right to remain

silent is wrongfully penalized for so doing because a

limited portion of a government witnesses’ testimony

is reread and defense counsel’s cross-examination is

not reread, which unduly emphasizes incriminating

testimony and effectively denies defendant’s right to

confrontation of that witness through cross-exami-

nation.

3. Whether the Court should grant this writ in

order to outline a uniform approach to summarizing

and rereading portions of testimony in response to a

jury’s request, particularly when the defendant has

elected to exercise his Fifth Amendment right.

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

1. The Fifth Amendment, United States Consti-

tution

2. The Sixth Amendment, United States Consti-

tution

3. The statute under which petitioner was charged

and convicted, namely 18 U.S.C. 1001:

3

Whoever, in any matter with the jurisdiction of

any department or agency of the United States

knowingly and willfully falsifies, conceals or covers

up any trick, scheme, or device a material fact, or

makes any false, fictitious or fradulent statements

or representations, or makes or uses any false

writ'ng or document knowing the same to contain

any false, fictitious or fraudulent statement or

entry, shall be fined not more than $10,000.00 or

imprisoned not more than five years or both.

STATEMENT OF THE CASE

This action arose out of an indictment returned by

the Grand Jury of the Western District of the United

States Court at Louisville on August 8, 1977, charging

the petitioner with one count of making a false state-

ment or writing to a government agency. The action

was tried from Wednesday, October 12, 1977 to Friday,

October 14, 1977. At the close of the prosecution’s

proof, defense counsel pursuant to Rule 29 made a

Motion for Judgment of Acquittal. The Trial Judge

overruled petitioner’s Motion for Directed Verdict and

the matter was submitted to the jury. At 3:35 p.m. on

Thursday the jury sent a note to the Trial Judge re-

questing certain testimony be reread and the Trial

Judge denied said request. At 5:20 p.m. the same day

the jury sent the Trial Judge another note saying they

could not reach a unanimous decision and the prospects

were not good at which time the Trial Judge sent the

jury home and requested they return the next day to

further deliberate. On the following day at 10:45 a.m.

the jury again sent a note to the Trial Judge and again

4

requested certain testimony be reread. This time the

Trial Judge reread the testimony requested. The jury

then reached a verdict finding the petitioner guilty as

to count one of the indictment whereupon the Trial

Judge set sentence.

REASON FOR GRANTING THE WRIT

Thé Court of Appeals affirmed the action of the

District Court which violated petitioner’s constitu-

tional rights.

The petitioner’s Sixth Amendment guarantee to

confront a witness was effectively denied due to the

trial court’s limited rereading of the testimony of a

government witness, Francis Henry Ebling. Mr. Eb-

ling, a special agent with the Office of Investigation of

the United States Department of Agriculture, while

testifying read a statement prepared by himself which

contained incriminating statements allegedly made by

the petitioner to Mr. Ebling. The trial court reread

two (2) pages of the transcript of said testimony.

The petitioner chose not to testify on his own behalf

at the trial. Asa result of the petitioner exercising his

Fifth Amendment right petitioner’s only means of re-

futing this witness’ testimony was cross-examination

by his counsel at trial. Such selective and insufficient

rereading once the trial court changed its earlier de-

cision not to reread any testimony or summarize any

testimony served to emphasize the direct testimony of

the witness. United States v. Tager, 481 F. 2d 97, 101

(10th Cir. 1973).

5

Denial of the right to effective cross-examination

involves constitutional error of the greatest magnitude.

Davis v. Alaska, 415 U. S. 308 (1974). The primary

purpose of the Sixth Amendment confrontation clause

is the right of cross-examination, Douglas v. Alabama,

380 U. 8S. 415 (1965) ; ‘‘to be confronted with the wit-

ness against him’’ [petitioner]. Pointer v. Texas, 380

U. S. 400 (1965). A proper and vital function of

cross-examination is to show the witnesses’ motivation

for testifying and any existing bias or prejudice,

Greene v. McElroy, 360 U. S. 474 (1959). This was

denied the petitioner in this action by a severely re-

stricted rereading of testimony of this government’s

witness. In spite of strong and lengthy objection by

defense counsel the trial court did not read any portion

of the cross-examination of said witness. This effec-

tively denied petitioner’s Sixth Amendment rights.

Petitioner was penalized because he chose to exer-

cise his Fifth Amendment right to remain silent and

not testify in his own defense. The jury did not have

the direct testimony of petitioner to weigh against the

testimony of Mr. Ebling. If Mr. Ebling’s total testi-

mony was ambiguous, unclear and causing the jury

problems then to reread only the direct examination

was to unduly emphasize it in the jury’s mind. To

have reread the cross-examination would have avoided

this error. The entire length of Mr. Ebling’s testimony

is only twenty five (25) pages and could have easily

been reread in its entirety by the trial court once the

decision to reread a portion thereof was made. The

case of United States v. Rabb, 453 F. 2d 1012 (3rd Cir.

6

1971) held that the rereading of ‘‘forty (40) pages of

testimony would take considerably less than one hour,”’

and should be done when requested by the jury to

prevent any erroneous view of such testimony. The

course of conduct taken by the trial court not only over

emphasized the alleged statement made by petitioner

to agent Ebling, but effectively denied him his right to

eross-examination or acted to so diminish the weight of

the cross-examination to effectively deny, in fact, such

eross-examination. This result causing undue preju-

dice and denial of the constitutional rights to the peti-

tioner.

The petitioner’s final argument is the Court should

grant this writ due to the widely varying and greatly

differing course of conduct and exercise of discretion

between the Court of Appeals Circuits and the District

Courts within them. The list of cases and authorities

are numerous with varying opinions. United States v.

Harris, 521 F. 2d 1089 (7th Cir. 1975), jury requested

a portion of petitioner’s testimony be reread and trial

court reread entire testimony; United States v. Tager,

481 F. 2d 97 (10th Cir. 1973), cert. denied, 415 U. S.

914; United States v. Ballard, 535 F. 2d 400 (8th Cir.

1976), trial court answered one question by jury about

testimony but would not answer a second question;

United States v. Four Star, 428 F. 2d 1406 (9th Cir.

1970), cert. denied, 400 U. S. 947, trial court reread

testimony of F.B.1I. agent requested by jury, but after

petitioner’s testimony had first been reread, United

States v. Rabb, 454 F. 2d 726 (8rd Cir. 1972), trial

eourt’s refusal to reread crucial testimony of witiess

7

requested by jury was reversible error; Stone v. United

States, 506 F, 2d 561 (8th Cir. 1974), cert. denied, 420

U. S. 978; United States v. McCoy, 517 F. 2d 41 (7th

Cir. 1975), cert. denied, 423 U. S. 895. Petitioner

states the Court should grant this writ and provide

guidance to the lower courts in order to direct their

future conduct in the area of summarizing and reread-

ing portions of testimony in response to jury request.

The Court should use this opportunity to unify lower

court action in this area in general and specifically in

criminal cases where the petitioner has exercised his

constitutional right to remain silent. Uniformity in

this matter would protect against further violations of

Fifth and Sixth Amendment safeguards.

CONCLUSION

A writ of certiorari should issue to review the judg-

ment and opinion of the Court of Appeals.

Respectfully submitted,

Don H. Masor

G. Murray TURNER

MULHALL, Masor, TuRNER, TAYLOR & HorrMan

440 South Seventh Street

Louisville, Kentucky 40203

(502) 584-6375

Counsel for Petitioner

APPENDIX

Mas oa ae co.

9

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5028

Unitep States or AmericA - - - Plaintiff-Appellee

v.

GENE GRIDER - - - . Defendant-Appellani

ORDER—Filed July 10, 1978

Before: Putturrs, Chief Judge, Livery, Circuit Judge,

and Peck, Senior Circuit Judge.

Defendant was convicted at jury trial of having made a

false statement to a government agency in violation of 18

U.S.C. § 1001, and perfected this appeal which has been

submitted on the record and on the briefs of counsel. Being

fully advised in the premises, the Court concludes that

sufficient admissible evidence was received to support the

finding necessary to the jury’s verdict on the issue of the

materiality of the statement in question. It is further con-

cluded that the trial court did not abuse its discretion in

having portions of the record read to the jury at its request

after retirement and in declining to declare a mistrial when

it experienced some difficulty in arriving at a verdict.

Therefore,

Ir Is OrnpErED that the judgment of the district court be

and it hereby is affirmed.

ENTERED BY ORDER OF THE CoURT.

(s) John P. Hehman, Clerk of Court

10

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5028

Unitep States or America - - - Plaintiff-Appellee

v.

Gene GRmwER~ - - - - Defendant-A ppellant

ORDER—Filed August 22, 1978

Upon consideration of the motion of the defendant-

appellant for stay of mandate pending application for

certiorari until September 11, 1978. :

It is Orperep that the motion is granted, pursuant to

Rule 41(b) of the Federal Rules of Appellate Procedure.

ENTERED BY ORDER OF THE CouRT.

(s) John P. Hehman, Clerk

11

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Unitep States or AMERICA

v. | OR 77-00152-01-L

GENE GRIDER

J

ORDER—Entered October 17, 1977

A trial by Jury in the above-styled action having begun

on October 12, 1977 and the Jury having returned to open

court at 2:35 P.M. on October 14, 1977 with a verdict of

GUILTY as charged, the Court having advised the defend-

ant of his rights concerning the appeal and at the request

of counsel for defendant,

Ir Is Orperep that bond herein on appeal be set at

$5,000.00 own recognizance with conditions of release on

said bond as set by the Court as follows:

1. The defendant shall NOT be allowed to enter Old-

ham County, Kentucky with the reasons therefor being

given in an oral opinion from the bench into the official

record of the Court.

2. The defendant shall report to the United States

Probation Office in such manner and at such times as they

may direct until final disposition herein.

October 14, 1977

(s) Charles M. Allen, Chief Judge

Copies to: United States District Court

U.S. Attorney

U.S. Marshal

U.S. Probation

Counsel for defendant

12

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was this

e & day of September, 1978 mailed to David N. Everett,

Assistant United States Attorney, 211 U. S. Courthouse

Building, Louisville, Kentucky 40202.