Opposition — Butler v. United States

Bupremea Vout, U. “ee

FILED. }

MAR 19 1980

&e

g

>

'

IN THE

Supreme Court of the Gnited States

"79-1534

AUGUST BUTLER,

Petitioner,

v.

UNITED STATES OF AMERICA,

. Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITIONER’S BRIEF

AUGUST BUTLER

CHARLES L. FRANZ, JR.

1019 Camden Street

San Antonio, Texas 78215

Attorney for Petitioner

February 27, 1980

te ee eee

Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

RP CIEINUY MRPT cnc ec ccvcdccewsveccs The aNeas ny 2

ee cela. bce tne ee denen tees 2

REQUEST FOR ORAL ARGUMENT .................. 3

er so ese Se cae wetacensn ce deeecees 3

CFUFE ERIN WIRMIIIET EEO occ ccc cccvccccsescecescees 5

SR PRRMEMEIIINE COE BEE CARE ccc c ccc cceccccscccscces 6

REASONS FOR GRANTING WRIT.................... 9

FIRST QUESTION PRESENTED ...............00000. 10

SECOND QUESTION PRESENTED .................. 14

_ SUBSTANTIALITY OF FEDERAL QUESTION ....... 17

THIRD QUESTION PRESENTED .................... 17

FOURTH QUESTION PRESENTED .................. 18

ARGUMENT AND AUTHORITIES................... 19

FIFTH QUESTION PRESENTED..................... 20

ARGUMENT AND AUTHORITIES................... 20

SIXTH QUESTION PRESENTED..................00. 21

ARGUMENT AND AUTHORITIES................... 21

SEVENTH QUESTION PRESENTED................. 22

ARGUMENT AND AUTHORITIES................... 22

EIGHTH QUESTION PRESENTED........ Pi aek ohexne 22

ARGUMENT AND AUTHORITIES................... 22

SUBSTANTIALITY OF FEDERAL QUESTION ....... 23

NINTH QUESTION PRESENTED .................... 24

ARGUMENT AND AUTHORITIES................... 24

TENTH QUESTION PRESENTED.................... 28

ARGUMENT AND AUTHORITIES................... 28

#%

(ii)

oe BE A eS 29

gb SR en Re ESO SUN 30

CER EAP ULAR Gr MP vac c ccc tate ccccccecs 30

8 ENE EE 31

ANNEX B—Judgment of District Court ................. 32

ANNEX C—Judgment of Court of Appeals .............. 33

ANNEX D—Judgment on Rehearing ................... 34

TABLE OF AUTHORITIES

Page

Cases:

Allen v. Estelle,

ee BR EE 16

Batro v. State,

SOE Ba ee ae coin ccc ccccacccess 21

Blevins v. State,

woe ee Fe Re eee ee Sat 20

Bouie v. State,

pe 21

Bradley v. State,

eo 22, 26

Davis v. State,

557 S.W.2d 303 (UDTT). coc cesccesccvcccsccesseesceedl

Dowden v. State,

ey Be Se 26

Ex Parte Bain,

RS IS a Oa 12, 13

Ex Parte Fuqua,

Re, I a he a 20

Ex Parte Haywood,

SSO BWR ee akc cce Le cececccss 20

(iii)

i Gables v. State,

EE ns on a's 6.4 ba Ce oes oo eave ebuben 23

Gaither v. United States,

ee re UD a sw a ons weal c and ede Wide wean }1

Goodson vy. State,

ee MAME UD SED TODs cxccuckassbaececsoanscca 19, 23

Hilson v. State,

Es SEU PERI Fob Oh occa Weed wevebas aan eee) 23

Jackson v. State,

Be RR. gp) Se ree ey eon 28

Jones v. State,

ee WEDS fc Gb ck iN wens eve annes bon dace 21:

Kimbrough v. Cox,

TD os hw eaig nde eke wdllan OW eka Rem eS 16

Lucero v. State,

ee Me I RUDD x. s Cie bashes Fkbaa a cones 21

Manson v. Braithwaite,

i re, sod Se iccunkubeaeantbesesake 17

Page v. State,

ge La ine eter rd DS re aOR ny 21

Robinson v. State,

UE AY ES GUTTA) boi ness oben ddevbdeewbasmna 28

Saltys v. Adams,

ee ee EN a ss Voss ceka thaw eaaeaneen 14

Simmons v. United States,

390 U.S. 377, BS S.Ct. 967 (19GB) . 0. ccc cnc ccccces 15

Stovall v. Denno,

See ee ee EM CURED 6 vnc vc tcsersnvaveses 17

United States v. Busch,

ee ee ES ck Ga dvs ack hes bowen vbekaes 27

United States v. Doedocie,

Ce ae 14

United States v. Florio,

DED Fa, Fees OPPO BRRAME Es weirder cccsccccace 13

#*

(iv)

United States v. Green,

EE ERR COE EAE Sener 27

United States v. Mullens,

Ne eo pac ow wa beneeiee av 21

United States v. Southerland,

ss ST et re ckawedasecee¥ ands 16

United States v. Tibbs,

a I eS eaves ieaieu 13

Weaver v. State,

EE COU POs on 5 ons Cs am dewhnsecedhesbae 19

Williams v. State,

es a diay oe hb a eed bed eeaes 26

Statutes:

Nee en ae et se dia Oa eas 3

ee ag i a nee pd baa cv.dnbicudweeekiaus 3

I Bee BOUND PUN COED, koi scaccccncccecceveesc 4

a re hea peek oes en edeneen a 11

IN THE

Supreme Court of the Anited States

No.

AUGUST BUTLER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITIONER’S BRIEF

AUGUST BUTLER

PETITION FOR A WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Now comes August Butler. the Petitioner herein, and

prays that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Fifth Circuit.

2

OPINIONS BELOW

On August 8, 1978, A Federal Grand Jury in the

Southern District indicted Petitioner-Appellant, August

Butler, a black citizen of Bexar County, Texas, for violation

of Title 18, United States Code, Section 3, and Section

29.03 of the Texas Penal Code. (R-1). August Butler

pleaded not guilty and at the conclusion of a Trial

December 8, 1978, was convicted by a jury in the United

States District Court for the Southern District of Texas,

Honorable Owen D. Cox, District Judge Presiding. (R-14).

August Butler filed a Motion for a New Trial on December

15, 1978, (R-30-31), which was denied on December 19,

1978. (R-32). August Butler gave his Notice of Appeal to

the United States Court of Appeals for the Fifth Circuit on

January 5, 1979 (R-34). Honorable Owen D. Cox

extended the period for filing the record in the Court of

Appeals to April 19, 1979. The Brief for Appellant was

filed June 3, 1979. The Brief for Appellee was filed July 3,

1979. On December 14, 1979, the United States Court of

Appeals for the Fifth Circuit Affirmed the Judgment of the

Trial Court. On January 30, 1980, the Appellant’s Motion

for a Re-hearing was denied.

JURISDICTION

The Judgment of the United States District Court for the

Southern District of Texas was entered on January 9,

1979. The Judgment of the United States Court of Appeals

for the Fifth Circuit was entered on December 14, 1979. A

timely Petition for Re-hearing was denied January 30,

3

1980. The jurisdiction of this Court is invoked under

U.S.C. 3 and 18 U.S.C. 13 and Sec. 29.03 of the Texas

Penal Code and 28 U.S.C. 1254(2).

REQUEST FOR ORAL ARGUMENT

Petitioner respectfully requests this Honorable Supreme

Court to set this Petition for a Writ of Certiorari for Oral

Argument. Questions and answers regarding particular

events in the transcript and record would benefit the Court.

Statues Involved

18 U.S.C. 3 Accessory after the fact.

Whoever, knowing that an offense against the United

States has been committed, receives, relieves, conforts or

assists the offender to hinder or prevent his apprehension,

trial or punishment, is an accessory after the fact.

Except as otherwise expressly provided by any Act of

Congress, an accessory after the fact shall be imprisoned

not more than one-half the maximum fine prescribed for the

punishment of the accessory shall be imprisoned not more

than ten years.

18 U.S.C. 13 Laws of states adopted for areas within

Sederal jurisdiction.

Whoever within or upon any of the places now existing or

hereafter reserved or acquired as provided in section 7 of

this title, is guilty of any act or omission which, although not

made punishable by any enactment of Congress, would be

**

4

punishable if committed or omitted within the jurisdiction of

the State, Territory, Possession, or District in which such

place is situated, by the laws thereof in force at the time of

such act or omission, shall be guilty of a like offense and

subject to a like punishment.

Section 29.03 Texas Penal Code—Aggravated Robbery.

(a) A person commits an offense if he commits robbery

as defined in Section 29.02 of this code, and he:

(1) causes serious bodily injury to another, or

(2) uses or exhibits a deadly weapon.

(b) An offense under this section is a felony of the first

degree.

Section 29.02 Texas Penal Code—Robbery.

(a) A person commits an offense if, in the course of

committing theft as defined in Chapter 31 of this code and

with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes

bodily injury to another; or

(2) intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the

second degree.

0

ay

10.

5

Questions Presented

. Whether or not a District Judge can alter an

indictment?

. Whether or not the identification witnesses were

reliable?

Whether or not the government proved jurisdiction?

. Whether or not the government proved beyond a

reasonable doubt that a pistol was used in the alleged

robbery?

Whether or not the indictment must allege ownership?

Whether or not the indictment must allege that the

money was “United States Currency’’?

. Whether or not the indictment must allege that the

taking was without the owner’s consent?

Whether or not the trial court should have charged the

jury on circumstantial evidence?

Whether or not the charge given to the jury was

improper?

Whether or not the F.B.I. fingerprint report that was

favorable to the defendant was properly excluded from

evidence?

6

Statement of the Case

Lorraine Annamae Boyd testified (T-9) that on August 5,

1978, she closed the store at 7:00 P.M.., and that at the time

two (2) black men in their mid-twenties were in the store. (T-

10). One of the men picked up a six pack of Schlitz beer in

cans and the other picked up a bottle of Christian Brothers

Brandy (T-11). She asked for an I1.D. Card so she could serve

them. (T-11). Then one of them turned to the other one and

said, “Did you bring your I.D.” and he said, “No, I left it on

my bed.” “I thold them that I would not be able to serve

them.” “I walked to the door to let them out and reached for

my key, that was when I was grabbed by the arm and shoved

into the office.” ““He told me not to make a sound.” (T-12)

She did not see a pistol. She said she could just see the end of

the barrel and couldn’t know if it was a shotgun or a derringer.

(T-12) She didn’t see anyone take the money from the safe,

and she didn’t feel threatened. She did not see either of them

get into the safe (T-15). When asked by the prosecutor,

“Were you able to see whether or not they got into the safe,

yourself, could you see anything like that?” She answered,

“One of them is bound to have grabbed the money off the top

shelf of the safe.”’ This answer is unresponsive and assumes a

fact that is not in evidence and further tells the jury that she in

fact did not see anything like that. After the men left she was

able to et loose enough to get to her desk (T-17). She said

Shawn Alan Witcomb came in two (2) minutes after the two

black men left. (T-18). She said Chief Rodley came in and

cut the rope with his penknife. (T-17). She said $900.00 was

taken. (T-18) She said that one of the black men was wearing

a black background shirt that had different colored flowers on

it, a very subdued color, as far as that goes, vice nice, (T-19),

and was clean shaven, and neatly dressed the same way as

J

August Butler. (T-19) She knows that she could have seen

August Butler before, (T-20) but she has no recollection of

seeing the robber before. (T-21) Prior to the trial she

identified an uncharged suspect as performing the role in the

robbery that she later described at the trial as that performed

by August Butler. She said the other robber was clean shaven

also, had an afro, a light blue shirt, a V-neck type shirt and

dark blue pants. (T-22) She said it was the other black man

that has the gun. (T-22) She said she would recognize the

eyes of the man that had the gun and it was not August Butler.

(T-27) She said that on the scale of one to ten she would

place August Butler at five because she did not get to look at

him as long as she did the other person. (T-23)

Ruben Cuevas said he works for Civil Service, security

guard at NAS, Corpus Christi. (T-36) He said that while

there on August 5, 1978, a burglar alarm went off (T-11),

and said he heard over the radio that a blue car was wanted

with two black men in it. He said he saw the driver and that

the driver had a blue cap on and wore a light blue shirt, and

that the passenger had a flowered shirt. He said he got the

license plate. (T-38). He identified a photograph shown him

by Ruben V. Martinez as the driver of the vehicle, which was

No. 1. (T-42) He said that on a scale of one to ten he would

place his ability to identify August Butler at about seven and

one-half. (T-47)

E. C. Miller testified that he saw either a blue or a black or

a real dark blue Buick, but couldn’t swear to it. (T-52) He

said that about 4:00 in the afternoon he saw a car drive in

front of his mobile home and make a circle in McDaniel’s

driveway, and stop, and then two men got out, went away,

came back and went away again. He said they both seemed

to be slim. (T-54) E. C. Miller testified that he lived at

“1005 Flour Bluff Drive‘‘ and the prosecutor asked the

#*

8

leading question, ““That is near the Navy Aid Station, isn’t

it?”’ and the witness answered, “‘yes sir.”’ Near the Navy Air

Station is not on the base.

Donnie Lee McDaniel said he saw a Black automobile

parked in his driveway. He said it was navy blue or dark navy

blue. (T-56) He said he called the police and a wrecker

hauled it away. (T-51) He said this happened between 6:00

and 7:00 P.M. (T-61)

Hans P. Hansen testified that he went to the police pound

lot on Sunday, August 13, 1978 and saw a Buick Riviera, a

dark blue in color, but did not observe the decal. (T-67) He

said he talked to August Butler August 13, 1978 and

obtained his permission before searching the trunk of the car.

(T-71)

Ruben V. Martinez, who was excused by the Court from

the Rule, testified that on Sunday, August 6, 1978, he

obtained a searci. warrant and found $165.00 stuffed

underneath the driver’s side of the front seat. (T-74) The

alledged search warrant was not introduced into evidence.

He said that in the glove compartment he found a wallet, a

check book, a payroll check, a military dependent’s LD.

Card, and a driver’s license. On cross examination he said

the search was on Tuesday, August 8, 1978. (T-75) He said

that the driver’s license picture was marked No. 7 and that

the photo lineup was about ten (10) days after the robbery.

(T-56) He said he only used six (6) photographs in the

lineup. (T-77) Later he changed his testimony and said that

he went to the police station August 13, 1978. On page 77 of

the transcript he testified that Ruben Cuevas picked out

photograph No. 1, which is definitely not August Butler as

being one of the men he saw the night of the robbery, but

another man.

Ernest D. Wilson testified that he checked some finger-

9

prints with those of August Butler and they did not match. (T-

112)

Floyd Bieniek testified that the care was impounded on

August 6, 1978 and released to August Butler on August 13,

1978. (T-146). He said that a stolen auto report is not taken

on the telephone. (T-150).

Petitioner has attempted to show this Honorable Supreme

Court that August Butler is innocent and did not get a fair

trial. August Butler was never clean shaven in the last five

years. He was in Corpus Christi on August 5, 1978 and his

car was stolen. He was wearing a shirt that had the words

Port Isabel on the front of it. His personal things were found

in the glove box, a natural and usual place for a man like

August Butler because he works for an elevator company and

had a habit of not carrying anything that might be lost in an

elevator shaft. If this Court does not reverse this case an

innocent man will be inarcerated for a crime he never

committed.

Reasons for Granting Writ

Petitioner respectfully submits that with respect to due

process and fundamental fairness, the Defendant August

Butlerdid not receive a “‘fair trial’ because:

1. It was improper for the District Judge to alter the

indictment. That is, he changed the Violation from Title 18

United States Code, Section 3 to Title 18, United States

Code, Section 13.

2. The identification witnesses were unreliable. There

was a total lack of identification. There was no positive

identification of August Butler by the victim.

3. The government improperly failed to prove jurisdic-

=

“a

10

tion. There was no evidence of where the Naval Air Station is

located. There was no evidence that a crime was committed

within the jurisdiction of the Southern District of Texas.

4. The government improperly failed to prove beyond a

reasonable doubt that a pistol was used in the alleged

robbery. No pistol was introduced into evidence. No one

even saw a pistol. The record is silent as to a pistol.

5. The indictment did not allege ownership.

6. The indictment did not allege that the money was

“United States Currency’’.

7. The indictment did not allege that the taking was

without the owner’s consent.

8. The trial court shoud] have charged the jury on

circumstantial evidence. The Defendant’s special requested

charge was denied.

9. The charge given to the jury was improper.

10. The F.B.I. fingerprint report that was favorable to the

defendant was improperly excluded from evidence.

Petitioner therefore respectfully prays that this Honorable

Court will grant this petition for a writ of certiorari and

review this case and reverse and remand this cause for further

proceedings cr dismiss the indictment and discharge the

petitioner.

First Question Presented: Whether or not it is improper for

a District Judge to alter an indictment?

August Butler, by and through his attorney in the trial

court, Hon. J. Bonner Dorsey, made a Motion for a

Judgment of Acquittal after the government rested. (T-170).

In the Motion for a Judgment of Acquittal, he pointed out

that the indictment in this case (Appendix A) was for a

violation of 18 U.S.C. 3. (R-1). Likewise, the original

Court’s charge (R-21) said Title 18 United States Code,

Section 3. (T-171). The trial court erred in allowing the

government to correct the instant indictment pe: Court Order

on December 8, 1978. This was after the Defendant was

placed in jeopardy and after the government rested and

closed it’s case. (T-174). The government rested and closed

on Page 169 of the Transcript.

An amendment to the indictment is to be distinguished

from a variance between the indictment and the proof

adduced.

An amendment of the indictment occurs when the charg-

ing terms of the indictment are altered, either literally or in

effect, by prosecutor or Court after the Grand Jury has last

passed upon them. A variance occurs when the charging

terms of the indictment are left unaltered by the evidence

offered at trial proves facts materially different from those

alleged in the indictment. Gaither v. United States, 413 F.2d

1061, 134 U.S. App.D.C. 1071 (1969).

Rule 6 (f) of the Federal Rules of Criminal Procedures

provides: “An indictment may be found only upon the

concurrence of twelve or more jurors.” This is further

specified by the Fifth Amendment’s command that “‘no

person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury.”

This issue was first raised in the case at bar on September

19, 1978, when Defendant’s Motion to Dismiss the Indict-

ment (T-6) was filed.

The indictment as a charging instrument has been recog-

‘Record on appeal, hereinafter referred to as (R- ).

Transcript, hereinafter referred to as (T- ).

12

nized to have two chief purposes:

first, to appraise the accused of the charges against him, so

that he may adequately prepare his defense, and

second, to describe the crime with which he is charged

with sufficient specifically to enable him to protest against

future jeopardy for the same offense.

The Fifth Amendment requires that an indictment be

brought by a Grand Jury. The Grand Jury is interposed “‘to

afford a safeguard against oppressive actions of the prose-

cutor or a Court.”

The very purpose of the requirement that a man be indicted

by a Grand Jury is to limit his jeopardy to offenses charged

by a group of his fellow citizens acting independently of

either prosecuting attorney or judge.

The sweeping power of the Grand Jury over the terms of

the indictment entail very strict limitations upon the power of

prosecutor or Court to change the indictment found by the

jurors, or to prove at trial facts different from those charged in

the indictment.

In the leading case of Ex Parte Bain, 121 U.S. 1,7 S.Ct.

781, 30 L.Ed. 849 (1887), the Supreme Court said: “If it lies

within the province of a Court to change the charging part of

an indictment to suit its own notions of what it ought to have

been, or what the Grand Jury would probably have made it if

their attention had been called to the suggested changes, the

great importance which the common law attaches to an

indictment by a Grand Jury, as a prerequisite to a prisoner’s

trial for a crime, and without which the Constitution says:

“No person shall be held to answer; may e frittered away

until its value is almost destroyed.”” When the indictment is

filed with the Court, no change can be made in the body of the

instrument by order of the Court, or by the prosecuting

attorney, without a resubmission of the case to the Grand

Jury.

13

Ever since Ex Parte Bain was decided in 1887, it has been

the rule that after an indictment has been returned, its

charges may not be broadened through amendment except

by the Grand Jury itself. In that case, the court ordered that

specific and relevant allegations the grand jury had charged

be stricken from the indictment so that Bain might be

convicted without proof of those particular allegations. The

Supreme Court held that this could not be done.

On September 19, 1978, Defendant’s Motion to Dismiss

the Indictment was filed (R-6). The motion said that “‘the

alleged facts recited in the indictment do not state an offense

under Title 18, United States Code, Section 3, as alleged in

the indictment,” and “the indictment does not state an

offense under the laws of the State of Texas.”

In Ex Parte Bain, the Supreme Court prohibited amend-

ing an indictment by any means other than through the Grand

Jury itself.

Even at common law it was beyond question that in the

English Courts indictment could not be amended.

The charging part of an indictment can not be changed by a

Court to suit its own notions of what it ought to have been or

what the grand jury would probably have made it if their

attention had been called to the suggested changes. U.S. v.

Florio, 315 F. Supp. 795, 1970 D.C. N.Y.

A variance between an indictment and evidence is fatal if

accused is exposed to danger of double jeopardy. U.S. v.

Tibbs, 600 F.2d 19.

The indictment must inform defendant of nature and cause

of accusation to permit preparation of defense and must

equip Defendant with sufficient facts to plead former

jeopardy in subsequent prosecution for same offense; indict-

ment which specifically states that all elements of offense

also insures that grand jury charged such offense and that

14

critical parts of charged offense were not subsequently

contributed by prosecutor alone. U.S. v. Diecidue, 603 F.2d

300.

Second Question Presented: Whether or not the identifica-

tion witnesses were un-reliable?

There was no positive identification of August Butler by

the victim. On a scale of one to ten, she was of a certainty of

five. There was no positive identification of August Butler by

Ruben Cuevas, a witness.

Lorraine Annamae Boyd said that on a scale of one to ten

she placed her ability to identify August Butler at five (T-23).

Ruben Cuevas identified a photograph marked #1 as the

driver of the getaway car (T-41). This was a photograph of a

man named Whitehall (T-77). Ruben Cuevas said that on a

scale of one to ten his ability to identify the Defendant was

between seven and eight (T-77). Ruben Martinez said that

photograph #1 was Whitehall and not August Butler and

that #7 was taken from Butler’s driver’s license and that he

used six photographs in the lineup (T-77). Ernest D. Wilson

could not match any fingerprints with those of August Butler

and said that sweaty or oily hands leave good fingerprints and

said he knew Bill Burch (T-96-99). Ruben Martinez could

not match any fingerprints (T-110). Ernest D. Wilson could

not even match fingerprints after a second try.

Lorraine Annamae Boyd said on Page 19 of the Transcript

of the Record that “‘he was clean shaven,” and on page 21

“*he did not have the beard or moustache.” This could not

have been August Butler because he did have a beard and a

moustache at that time and has had a beard and moustache

for many years.

In Saltys v. Adams, 465 F.2d 1023, 1972, Second

Circuit, a witness had just picked out petitioner from

15

photographs as a man “resembling” the robber and a witness

went to the bullpen looking specifically for the Defendant,

aware that the person suspected by police was there, and the

case was reversed with directions.

Ruben Cuevas identified the driver of the car as wearing a

blue cap and sort of like light blue shirt and the passenger

wearing some kind of a flower shirt (T-40), and his testimony

is completely destroyed because he identified photograph

No. 1 of Exhibit 1 as being the driver of the car, and August

Butler. Lorraine Annamae Boyd testified that the robber was

wearing a black background shirt and that photograph No. 7

of Exhibit 1 was August Butler, and that she was 50% certain

of this. Ruben V. Martinez was not sure whether he had 6 or 7

pictures in the exhibit (T-77). He said: “‘I just showed them

this group of six photographs.”

In Simmons v. United States, 88 S.Ct. 967, 390 U.S. 377,

1968, the defendants were convicted of armed robbery and

Mr. Justice Harlan delivered the opinion of the Supreme

Court that “It must be recognized that improper employment

of photographs by police may sometimes cause witnesses to

err in identifying criminals. A witness may have obtained

only a brief glimpse of a criminal, or may have seen him

under poor conditions. Even if the police subsequently

follow the most correct photographic identification proce-

dures and show him the pictures of a number of individuals

without indicating whom they suspect, there is some danger

that the witness may make an incorrect identification. The

danger will be increased if the police display to the witness

only the picture of a single individual who generally resem-

bles the person he saw, or if they show him the pictures of

several persons among which the photograph of a single such

individual recurs or is in some way emphasized. The chance

of misidentification is also heightened if the police indicate to

16

the witness that they have other evidence that one of the

persons pictured committed the crime. Regardless of how the

initial misidentification comes about, the witness thereafter

is apt to retain in his memory the image of the photograph

rather than of the person actually seen, reducing the trust-

worthiness of subsequent lineup or Courtroom identifi-

cation.”

In Allen v. Estelle, 568 F.2d 1108, 1978, Fifth Circuit,

Chief Justice John R. Brown provided a two tier test for

determining whether due process has been violated by police

identification procedure. Court must first determine whether

procedure was unnecessarily suggestive and then, if it was,

they must determine whether procedure created substantial

risk of misidentification. The reliability of the identification

rests on the opportunity of the witness to view the criminal at

the time of the crime, the witness’ degree of attention, the

accuracy of his prior description of the criminal, the level of

certainty demonstrated at the confrontation and the time

between the crime and the confrontation. Then against these

- factors is to be weighed the corrupting effect of the suggestive

identification itself in deciding whether due process has been

observed.

In United States v. Southerland, 428 F.2d 1152, Fifth

Cir. 1970, the Court reversed saying “‘under the facts

presented, in Court identifications made of defendant by two

employees of robbed bank, preceding in both cases by a

photographic identification of picture spread, were so

impermissibly suggestive as to have given rise to a very

substantial likelihood of irreparable misidentification and

should have been excluded.

In Kimbrough v. Cox, 444 F.2d 8, 1971, Fourth Cir., a

detective went to the home of the money order clerk who had

been robbed and exhibited the Kimbrough’s pictures, but no

17

others to her. The only evidence of his guilt was the

testimony that three witnesses recognized him as the robber.

In view of this, every fact pertaining to identitication was

important, and it cannot be said that the prosecution’s

introduction of the impermissible photographic identifica-

tion to strengthen its case was “harmless beyond reasonable

doubt.”

‘ In Manson v. Brathwaite, 97 S.Ct. 2243, 1977, the

Supreme Court reversed a conviction saying “reliability is

the linchpin determining the admissibility of identification

testimony and the facts to be considered are:

A. The opportunity to view.

B. The decree of attention.

C. The accuracy of the description.

D. The witness’ level of certainty.

E. The time between the crime and the confrontation.”

Substantiality of Federal Question

A substantial question is presented this Honorable

Supreme Court because the Corpus Christi Police have

pictures of August Butler that were not introduced at the trial

and that prove that he was not clean shaven on August 5,

1978.

The basic purpose of a trial is the determination of truth.

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967. Confronta-

tion for identification is a “critical stage’’ and counsel is

required at all confrontations.

Third Question Presented: Whether or not the government

improperly failed to prove jurisdiction?

This case was tried under the Assimilated Crimes Act,

which is 18 U.S.C. 13, which provides that the substantive

18

law of the State be operative in those areas that have

exclusive Federal jurisdiction. The record is absolutely

silent as to any evidence of jurisdiction of the United States

over the land of the Naval Air Station.

Lorraine Annamae Boyd testified that she worked at the

package store at the Naval Air Station. (T-20). She did not

testify that the Naval Air Station was in the Corpus Christi

Division of the Southern District of Texas, on land acquired

for the use of the United States and under the exclusive

jurisdiction thereof, nor did any other witness. This was a

material allegation in the indictment and it was not proved.

This point was raised in Defendant’s Motion for Judgment of

Acquittal. (T-170). Neither was there any evidence of the

identity of the Naval Air Station.

At the time of the government’s motion to take judicial

notice of the fact that the Corpus Christi Naval Station is a

Federal enclosure for purposes of 18 United States Code,

Sec. 13, the government had already rested. It was error to

grant this motion after the government had rested and closed

on page 169 of the Transcript of the record.

The Honorable Owen D. Cox erred in granting a Motion

of the Government to take judicial notice that the United

States Government has jurisdiction over substantive of-

fenses under State Law that are committed on the Naval Air

Station. (T-175). This motion was made after the govern-

ment rested and closed. (T-169). There is no evidence in the

record that the Naval Air Station is in Corpus Christi, is in

Nueces County or is in the Southern District of Texas.

Fourth Question Presented: Whether or not the govern-

ment improperly failed to prove beyond a reasonable doubt

that a pistol was used in the alleged robbery?

19

Argument and Authorities

There was absolutely no proof of the type of deadly

weapon. The indictment (R-1) charged the Defendant with

“using and exhibiting a deadly weapon, namely a pistol.”

There was no evidence as to the identity of the weapon.

In Weaver v. State, 551 S.W.2d 419, 1977, the Texas

Court of Criminal Appeals held that variance between

indictment and proof that the weapon was a “Luger”

automatic pistol was a fatal variance. Where the unneces-

sary matter is descriptive of that which is legally essential to

charge a crime, it must be proven as alleged, even though

needlessly stated. It is well established that where a person,

place or thing necessary to be mentioned in the indictment is

described with unnecessary particularity, all circumstances

of description must be proven. Thus, if the pleader makes

unnecessary allegations descriptive of the identity of the

offense charged, it is incumbent upon the State to establish

such allegations by evidence. The description of the deadly

weapon was not a necessary allegation, but since it was

alleged, it was descriptive of that which was legally essential

to charge the offense, to-wit; the deadly weapon, and must be

proved as alleged.

In the case at bar, there was no pistol, nor was there any

evidence of a pistol as alleged in the indictment (R-1). The

testimony of Lorraine Annamae Boyd was that she “‘couldn’t

see the whole gun” and “‘wouldn’t know if it was a shortgun or

derringer”’ and was a variance that is material and requires a

reversal. Also, there was no proof that Lorraine Annamae

Boyd was one and the same person as Lorraine A. Boyd.

This also is a material variance and requires a reversal.

In Goodson vy. State, 531 S.W.2d 140, Tex. Crim. App.

1976, the Court held that the State is bound by its allegations

20

in the indictment and must prove them beyond a reasonable

doubt. Therefore, the State was bound to prove beyond a

reasonable doubt that the Appellant robbed the complainant

Shaw with a pistol. The proof of robbery with a sawed-off

shotgun does not meet the burden.

Fifth Question Presented: Whether or not the indictment

must allege ownership?

Argument and Authorities

There was no evidence as to the ownership of the money.

This is an essential element.

In the case at bar the indictment does not state an offense

against the Laws of the State of Texas because it fails to

allege “‘ownership”’.

In Ex Parte Fuqua, 548 S.W.2d 909, 1977, the Texas

Court of Criminal Appeals found that an indictment under

which petitioner was convicted of robbery by assault with

firearms was fundamentally defective because it failed to

allege ownership of property alleged to have been taken.

In Blevins v. State, 176 S.W.2d 173, 1943, the Texas

Court of Criminals Appeals reversed a conviction for theft

because the indictment did not allege “‘that the alleged stolen

property was taken from the possession of the alleged owner,

or that it was taken from the possession of any person.”’ In

order to find the Appellant guilty thereunder, the jury was not

required to believe that the property was taken from the

possession of any person.

In Ex Parte Haywood, 550 S.W.2d 292, 1977, petitioner

was convicted for the offense of robbery by assault. The

Texas Court of Criminal Appeals held that the indictment

was fatally defective because it failed to allege the party to

21

whom the property allegedly taken belonged.

An indictment must allege each and every element of a

crime charged to pass constitutional muster. U.S. v. Mul-

lens, 583 F.2d 134.

Where an indictment which charged robbery by assault

and which failed to alledge to whom the property allegedly

taken belonged was fundamentally defective and conviction

was reversed. Jones v. State, 535 S.W.2d 184, 1976.

Also an indictment for robbery by assault was. ly

defective where it did not aver to whom property allegédly

taken belonged required a reversal. Batro v. State, 531

S.W.2d 613, 1975.

A robbery indictment was fatally defective where it failed

to recite to whom the property allegedly taken belonged, i.e.,

it failed to show that the complainant had a possessory

interest in the property superior to that of the defendant and

required a reversal. Page v. State, 532 S.W.2d 341.

An indictment which charged robbery but which failed to

allege to whom the property belonged was fundamentally

defective and required a reversal. Bouie v. State, 528

S.W.2d 587, 1975.

Also an indictment charging robbery by assault, which did

not allege other than by inference to whom the property

allegedly taken belonged was fatally defective and required a

reversal. Lucero v. State, 502 S.W.2d 128, 1973.

Sixth Question Presented: Whether or not the indictment

must allege that the money was “United States Currency’”?

Argument and Authorities

In the case at bar the indictment does not state an offense

against the Laws of the State of Texas because there was no

22

allegation that the “$900.00 in money” was United States

Currency.

Seventh Question Presented: Whether or Not the indict-

‘ment must allege that the taking was without the owner’s

consent.

Argument and Authorities

In the case at bar the indictment does not state an offense

against the Laws of the State of Texas because it did not

allege that the property was taken without the owner’s

consent.

In Bradley v. State, 560 S.W.2d 650, 1978, the Texas

Court said that “‘an indictment for theft which does not allege

that the taking was without the owner’s effective consent is

fundamently defective.”

Eighth Question Presented: Whether or not the trial court

should have charged the jury on circumstantial evidence?

Argument and Authorities

On December 8, 1978, the defendant filed his requested

Charge No. 1 (R-13), and on the same day it was denied by

the Court.

In his opening statement Hon. Robert Berg, the U.S.

Attorney, stated that “a whole lot depends on whether or not

Lorraine Annamae Boyd knows what she is talking about.”

(T-6) He further said, “We have, aside from the direct

evidence that she will bring to you, evidence called circum-

stantial evidence.”

There was no direct evidence of August Butler being

23

identified as a participant in the robbery.

In Gables v. State, 68 S.W. 288, Tex. Crim. App., 1901,

the Court found that so far as the taking of it was concerned, it

depends wholly on circumstantial evidence. A written

charge was prepared on circumstantial evidence, and the

Court was requested to give it, which was refused. The case

was reversed.

In Goodson v. State, 531 S.W.2d 140, Tex. Crim. App.,

1976, held that circumstantial evidence gave rise to a

reasonable inference that robbery was committed with a

pistol as charged, and that failure to grant special requested

charge on circumstantial evidence was reversible error.

In Hilson v. State, 276 S.W. 272, 1925, the Texas Court

of Criminal Appeals cited the principle that: ““To sustain a

conviction, it should appear not only that an offense as

charged has been committed, but there should also be proof

to a degree of certainty greater than a mere probability or

strong suspicion tending to establish that the party charged

was the person who committed it or was a participant in its

commission. There must be legal and competent evidence

pertinently identifying the defendant with the transaction

constituting the charge against him.”

Petitioner therefore respectfully submits that failure to

chare the jury on circumstantial evidence constitutes

reversible error.

Substantiality of Federal Question

A substantial question is presented to this Honorable

Supreme Court because August Butler has proof that he

reported his car stolen to the Corpus Christi Police by a copy

of the long distance telephone bill. Also he worked in San

Antonio for Esco Elevators on the proceding Friday and his

24

co-workers saw him at work and know that he was not clean

shaven.

Ninth Question Presented: Whether or not the charge given

to the jury was improper?

Argument and Authorities

On page 8 (R-23) of the Court’s instruction the Honorable

Owen D. Cox committed fundamental and reversible error

when the indictment (R-1) says: “‘August Butler did then and

there while in the course of committing theft of Nine

Hundred Dollars and no cents ($900.00) in money from

Lorraine A. Boyd, with intent to obtain and maintain control

of the money using and exhibiting a deadly weapon, namely a

pistol, knowingly and intentionally threaten and place Lor-

raine A. Boyd in fear of imminent bodily injury and death,”

and the instruction says: “‘August Butler on or about August

5, 1978, at the Naval Air Station in the Corpus Christi

Division of the Southern District of Texas, did then and there

intentionally or knowingly threaten or place Lorraine A.

Boyd in fear of imminent bodily injury or death by using or

exhibiting a deadly weapon, to-wit: a pistol while the said

August Butler was in the course of committing theft of

$900.00 in money from Lorraine A. Boyd, and that said acts,

ifany, were committed by the said August Butler with the

intent then and there to obtain or maintain control of the

aforedescribed property.”

Appellant submits that the instruction failed to apply the

law to the facts in the case, where the Statute of Robbery Art.

29.02(a)(2), utilizes conjunctively the Statute of Theft

Section 31.03(a), and where said section provides that: ““A

person commits an offense if he unlawfully appropriates

2s

property with intent to deprive the owner of property.”

Where the Statute of Robbery provisions, when read in

conjunction, clearly and adequately constitute the two

components and are joined by the conjunction, “‘and”’.

Appellant submits that the mere instruction of Article

29.02(1) V.T.C.A., in the abstract of Court’s instruction of

page 8 (R-23) provided the jury with three (3) different

possibilities of finding Appellant guilty of committing theft,

rather than applying the single element as avered in the

indictment.

The term “in the course of committing theft’? means

conduct that occurs in an attempt to commit, during the

commission, or in immediate flight after the attempt, or

commission of theft.

The Court’s definition on page 8 of the Court’s instruc-

tions failed to apply the law to the alleged facts of the case.

An indictment must charge acts constituting an offense and

in the offense of aggravated robbery, one statutory element is

“in the course of committing theft,” but where under its

statutory definition this element may be proven by one of

several alternatives, not all which require the proof of a

completed theft, as provided by Article 29.01(1) V.T.C.A.

The offense charged here (R-1) did rest on proof of a

completed theft. A variance exists and a reversal might be

mandated under the recent holdings of the Texas Court of

_ Criminal Appeals. This Honorable Supreme Court should

reverse this case because of the applicable statute the

government was seeking to enforce was Sec. 29.03 of the

Texas Penal Code.

Prejudice to the Petitioner was shown because of the lack

of evidence that misled the jury to the detriment of the

Petitioner.

It should be noted that the Court’s charge was objected to

26

by Petitioner’s attorney on page 170 of the Transcript.

In Dowden v. State, 537 S.W.2d 5, 1976, the Court said:

“It is fundamental that a conviction for an offense cannot

stand unless the charge authorized the jury to find a

defendant guilty only for conduct constituting that offense,

the indictment alleged such conduct, and the evidence at trial

showed such conduct.” These are the requirements of due

proces of law. If the Trial Judge fails to apply the law to the

facts raised by the evidence, it is not sufficient for the jury to

receive abstract instruction on the law and then render a

verdict according to a general conclusion on whether the law

has been violated. Williams v. State, 547 S.W.2d 18,

(1976). The State must prove its case beyond a reasonable

doubt and must prove each element of the offense charged. It

is the function of the charge to lead and to prevent confusion.

In the case at bar the petitioner, August Butler, has not had

a fair an impartial trial. Proof that the charge was unfair can

be seen in the “Notes from the Jury filed December 8, 1978,

(R-26).” “The Jury would like to question whether or not the

accused has to be in actual possession of the pistol to be

guilty as charged, or can the mere presence of the gun be

enough to find the accused guilty as charged.”

In the Williams Case, above, the Court concluded that

“Because a charge should affirmatively lead and dispel

confusion, and because a charge does not apply the law to the

facts fails to give such guidance, error of this character

should remain the subject of a per se rule. Furthermore, the

per se rule is not only fully justified, but also has its ease of

understandability and application to command itself for a

permanent place in our jurisprudence.

In Bradley v. State, 560 S.W.2d 650, 1978, the Court

found that the charge is fundamentally defective because it

allowed the jury to convict Appellant without finding all of

27

the statutory elements of the offense.

It has always been necessary to charge on all of the

essential elements of an offense.

In United States v. Busch, 505 F.2d 78, U.S.Ct. of App.,

5th Cir., 1974, Justice Clark in the opinion held that in failing

to instruct on the elements of the offense charged. . . the

District Court committed plain error affecting defendant’s

substantial rights, notwithstanding defense counsel’s partic-

ipation and acquiescence in each of the actions challenged.

The three overriding principles in this area of law are:

A. “The Court should define the crime charged and

specify its essential elements. A mere reference to the

indictment is insufficient.

B. A Court should never direct a verdict of guilt, in whole

or in part.

C. Special interrogatories should not be used in criminal

trials.”

In United States v. Green, 494 F.2d 820, 1974, U.S. Ct.

of App., 5th Cir., Justice Ainsworth considered an issue of

whether the instructions to the jury were sufficient to ensure a

fair trail to Appellant Green. Viewing the jury charge as a

whole, it was full, adequate and without plain error. A

‘presumption instruction” is disapproved and their use is

reversible error when they tend to reverse the burden of proof

in the jury’s mind.

In Davis v. State, 557 S.W.2d 303, 1977, the Texas

Court of Criminal Appeals held that a charge to the jury was

fundamentally erroneous as authorizing conviction under

every conceivable theory under the statute rather than

limiting convictions to the theory alleged in the indictment.

This is fundamental error and calls for a reversal. This was

also an aggravated robbery case. This is proof that the charge

was erroneous.

28

In Robinson v. State, 553 S.W.2d 371, 1977, the Texas

Court of Criminal Appeals held that a charge authorizing a

conviction under every conceivable theory under the robbery

and aggravated robbery statutes, rather than limiting it to the

theory alleged in the indictment was fundamental error.

Petitioner therefore respectfully submits that the improper

instructions to the jury constitute reversible error.

Tenth Question Presented: Whether or not the F.B.I.

fingerprint report that was favorable to the defendant was

properly excluded from evidence?

Argument and Authorities

Hon. J. Bonner Dorsey, trial attorney for August Butler,

attempted to have admitted latent fingerprints that were

taken from the bottle and from the six pack of beer that the

two bandits handled. (T-116). These prints were sent to the

F.B.I. lab in Washington by Ruben V. Martinez, along with

known prints of August Butler. The report states that: ““Two

latent fingerprints are not identical with the fingerprints of

Butler.” (T-117). The Honorable Owen D. Cox, District

Judge for the Southern District of Texas, refused to admit the

report or the prints into evidence. (T-118). Defense attorney

excepted to the Court’s ruling. (T-118).

In Jackson v. State, 551 S.W.2d 351, 1977, the Texas

Court of Criminal Appeals reversed a conviction for robbery

by firearms, and identification was a crucial issue at the trial.

Petitioner therefore respectfully submits that the failing to

admit fingerprint report into evidence constitutes reversible

error.

29

Conclusion

Petitioner respectfully submits that with respect to due

process and fundamental fairness, the Defendant, August

Butler, did not receive a “fair trial” because:

1. It was improper for the District Judge to alter the

indictment;

2. The identification witnesses were not reliable;

3. The government failed to prove jurisdiction;

4. The government failed to prove beyond a reasonable

doubt that a pistol was used in the alleged robbery;

5. The indictment failed to allege ownership;

6. The indictment failed to allege that the money was

“United States Currency”;

7. The indictment failed to allege that the taking was

without the owner’s consent.

8. The trial court should have charged the jury on

circumstantial evidence;

9. The charge given to the jury was improper; and

10. The F.B.I. fingerprint report that was favorable to the

defendant was improperly excluded from evidence.

Petitioner respectfully and sincerely believes that a sub-

stantial question is presented to this Honorable Supreme

Court here.

#*

30

WHEREFORE, PREMISES CONSIDERED, Peti-

tioner respectfully prays that this Honorable Supreme Court

grant a writ of certiorari and upon review of this case, will

reverse and remand for further proceedings, or dismissal of

the indictment and discharge the petitioner.

Respectfully submitted,

/s/ Charles L. Franz, Jr.

CHARLES L. FRANZ, JR.

1019 Camden St.

San Antonio, Texas 78215

Attorney for Petitioner

Certificate of Service

I, Charles L. Franz, Jr. hereby certify that on this 25th day

of February, 1980, I have mailed, postage prepaid 40 printed

copies of the above and foregoing Petition for a Writ of

Certiorari to the Clerk, United States Supreme Court,

Washington, D.C. and 3 copies to the Solicitor General,

Room 5614, Department of Justice, Washinton, D.C.

20530.

/s/ Charles L. Franz, Jr.

Charles L. Franz, Jr.

31

ANNEX A: INDICTMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

UNITED STATE OF AMERICA *

vs. * CRIMINAL NO.

AUGUST BUTLER ° C-78-183

INDICTMENT

THE GRAND JURY CHARGES:

That on or about August 5, 1978, at the Naval Air Station

in the Corpus Christi Division of the Southern District of

Texas, on land acquired for the use of the United States and

under the exclusive jurisdiction thereof, AUGUST

BUTLER, did then and there while in the course of

committing theft of Nine Hundred Dollars and No Cents

($900.00) in money from Lorraine A. Boyd, with intent to

obtain and maintain control of the money using and exhibit-

ing a deadly weapon, namely a pistol, knowingly and

intentionally threaten and place Loraine A. Boyd in fear of

#*%

32

imminent bodily injury and death. (Violation: Title 18,

United States Code, Section 3 and Section 29.03 of the

Texas Penal Code)

A TRUE BILL:

/s/

FOREMAN OF THE GRAND

JURY

J.A. “TOIWY” CANALES

United States Attorney

By: /s/ Robert A. Berg

ROBERT A. BERG, Assistant

United States Attorney

33

ANNEX B

~~ —

schbitiiesiaiadiae United © ...es Distmet Cour:

: _—— : SOUTHERN DISTRICT OF TEXAS

++ eep-- - . CORPUS CHRISTI DIVISToN

” FENDANT > '

—.. J meus? sume 9. e183

JUDGMENT AND PROQOBATION/COMMITMENT ORDER = yo ns ara

op the presence uth oro |. | aa. sel,

the defendant appewe! Suen oo sss autem | a cere |

COUNSEL \L— WITHOUT COUNSEL Pere ¢ .+ © Wht 80 Counse eke wnethe feter wor eve

“ ' te ? ‘herder (hewn: Aawe shitaey of ’

iX) with couNseL 1... - J, Bonner Dor he a ree

Norn of Ce ‘tel

eed GUILTY, arted thee cried tmrnees sat te . —'NOLOCONTENDERE = =«__X NoT GUILTY

PLEA there 16 @ factue! baa fu the

7 Oe Be |

There being a AOR Bee: dict uf x

LA. Gui tv

Oetendant has beer Conve ced oe che pe ’

, threatening with deadly weapon while

FINDING & committing theft in violation of litle 18, United $ = on. Section 13,

'UOGMENT and Section 2903 of the Texas Penal Code, as Same in the Indictment.

_—__"_

The court shed whetne: cheterignt Maclay thorny (Oo nee ery Hwult oot be pronounced Brcuuse Wu sulficwnt cause tut Cuntiety

Wes Shown, OF appeared ty the cOut! the Curt uh ane tne dete ity oe charged end comwcted at ordered that The ob foocten @t

hereby Committed to the custudy of the Attorney Geom i tet autho cent sepeesentative for Wp sonment ture perwd ul

TWELVE (12) YEARS.

»ENTENCE

on

ROBATION

OROER

§. DISTRICT COURT

SeTERN DISTRICT OF TEXAS

SPECIAL F l L E

INDITIONS

oF

MOBATION JANO 1979

V. BAILEY AHOMAS, CLES

ay Pa MAS route

TIONAL

te sehteteoet tO the weno ‘ ‘ , snows 7 w”

wt TONS tewer se whe Of they oe 4 . - the We :

oF try teen chang tf °. + one prabante “

(ATION pt edeatowe bot @ em ' su Ant wat

Tire Court Orders Kuvties pore he Hike eunterly of the Attorney General ond reconnect ~ 5 ‘ i.

_. +. ae

OWEN D. COX ar" eit

Annex B

5)

34

ANNEX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5052

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

AUGUST BUTLER,

Defendant- Appellant.

Appeal from the United States District Court for the

Southern District of Texas

(DECEMBER 14, 1979)

Before GOLDBERG, RONEY and TJOFLAT, Circuit

Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

*Fed. R. App. P, 34(a); 5th Cir. R 18.

1See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.,

1970, 430 F.2d 966.

35

ANNEX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 79-5052

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

AUGUST BUTLER,

Defendant- Appellant.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(January 30, 1980)

Before GOLDBERG, RONEY and TJOFLAT, Circuit

Judges.

#%

36

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Form 703-2