Brief for the United States in Opposition — Cole v. United States

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Opinion’ below — *__- Dip LOM Beceem en |

Jurisdiction. - pie og oeagh Ue i

‘Question presented. : eg 2

Statement . es “ a 2

TL Rarkground |, on ee : 2

2. The tirst grand yury Ryans ocx ee

oe The second grand yury Court 11) Sale "8

4. The instructions. - yy Bea 410

Argument ..___..._--. ER. “Nomen aan 1]

Conelusion ee esa ey ees .

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CTT ATIONS

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(2pses:

-* Brown vy. Walker, 161 U.S. 591... BAe 1}

Cairino vy. United States, 176 FD USSt

Grunewald vo United States. 353 U.S. 391. +

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: Rosner-v. beled Slate x, 10 PO8d G70 oa ay Be 3 1}

Cnted Slates vo Gruvewald, 233 Fo 24 556 Pee 13

United States v. Herron, 28 FF. 2a 122. __- 434

United States vy. Polakoff 12] I. 2d 333, cer-

lorari dented, 814 U.S. 626.2 _.° 2

d ‘noted Slates Ve Russel, 25% U.S, 13s : ‘2:

Statute: 18 US.CHBO3.: 0.00 ae

ws &

ae ean it Suprem Gourt of the ined Sate.

Ocrontx Tera, 1963 ®:

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ean ees ie res ‘aes a ae

-- -No. 1002. , .

7 A ate = a aa

Myrvin R. Conk, PRTITIONER

a ped e as “ly. ;

Ne h * Unrrep Sratres oF AMERICA

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“oN PETITION. FOR A WRIT OF CERTIORARI TO THE UNITED

STATES € OER T OF APPE ALN FOR THE NATH CIRCUIT

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RIEF FOR THE UNITED STATES IN OPPO ITION .

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> OPINION BELOW

The age of the court wot appe als cv ol. I, B2- 102 ; ad

os) Pet: App. 1-27) Is not vet reported.

JURISDICTION es)

~The judgment, of the eourt of ‘ippeals: was entered:

on March 16, 1964 (Vol, 1, 82, 103). The petition for

: The erecord consists: of: nine volumes. Volumes 2 through

@. Which are consecutivety paginated,: ‘constituted the reporter's

transe ript of the triakang-are referred to as “Pr.” Yotume I,

fs, Ww ‘hie h is separatély pag vated, contains assorted papeprafiled in

the district court ‘and: the proceedings in the court o appeals,

and is referred to as “Vol. 1°, Assorted government \exhibits,

which are on file with the Clerk. of this Ce ourt, ice referred. to

> a Om EK --

’ . ‘ “ . .

> Cd ° (1)

: Be

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eonyieted of obstructing justice under 18 a

8

> ° ry .

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aw writ of certiorari, Was filed oy) April 14, 1, The

— of thix ‘Coin is Invoke lil,

254(1 ).

QUESTION PRESENTED

Se ,

Ww hether one who demands that a witness be ve:

evan Jury invoke the privilege uit lust self-ine rimina-

tion and issies the-eats to that end v property “he

>. eg STATEMENT »

2

e" ‘Gre. “count indictment returne ini the United States

District Court for the Southern District of California

charged petutioner with obstructing justice by tcor-”

yroty endgivoring to influence and corrubtly in-

“~thienting and intimidating. gne Joel Benton, in «on-

Svehareed (Py, HU 462) .

nection with Benton's te stimony before a fede} ‘al grand

jury, in violation of 18 U.S.C, - 1508 (Vok l, 93).

After a trial bt jury, petitioner Was found guilty as

On June 12, 1963. petitioner:

rece ‘ived CONC vurrent tines OF $1,000 on each count (Tr.

1035 ). On appeal, . the conviction Was Unanimously |

afiirmed (Vol. 1, $2-102, 103), ete

The evidenee mis hee sumimi ized | as follows:

eA Backgr ound. Tn 1955, petitioner, who was a di-

rector and ‘officer of the advertising firm of Cole,

Kise her & Rogow, hired Joel Benton as a copywriter

and account, exer utive at the firm's: Beverly ITills.

California, office, sigan petitioner managed (Tr. 141-

‘W453, 276, 503, al2 Benton worked there unt] miid-

June 1957 (Tr. 11, 144-145, 276, O77,” ree CaN ¢

During this period, petitioner: Mitnoduced Benton to.

“one Joseph “Doce? Stacher and one Nate-Stein (Ty.

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— ° ner 2 : .

164, 211-212), Petitioner told. Benton that: ‘Stacher

was the “No. 2 man in the svndie; ate” and that g,

petitioner, wis Stacher’s “hey (Tr, 247). Stair:

‘and, te a. lesser extent, St cla visited the Levers -

Hills” office While Benton Was employed there (Tr.

164-166, 174-175, 212-219 979- 280). 2

In late 1955 or early L956, Benton,” as a favor to

Stein, endorsed four. Teamsters’ U nion checks age re-

gating $4,400 made payable to Benton; aid returned

the cheeks to Stein (Tr. L515 Ss, 285: b24, 3! 2), do2—

@ '

. dod: see Tre. 154-162). Benton gid not receive any of

4

the proceeds from the checks,

In early 1958—after Baton had left Cole, Fischer

« Rogow—Stein, told Benton®that a “fill se ale?’ ine

vestigation of James Hoffa - ‘and the Teamsters’ Union

was under Wav: that Benton might: he contacted by

the eovernment with reference to the chee ‘ks he had

endorsed: and that, if contacted, Benton was to com

municate. with, Stein ‘through a third Jparty (Tr. 31s,

2315, 329-330), Subsequently, an investigator from the

Genera] Accounting Office interviewed Benton regard-

ing the four cheeks amd his associ lation with Stein.

Pursuz ant to- fistructions from Stein, Benton; in a

tetter’ of June 6, 1958, to. the Investigator, said that

heshad received the. money for sefvices rendered un

conducting a ‘truek surve vl in ¢ ‘alifornia? a (1.6e., count-

ing the number of tricks traveling between Los.

- Angeies and San Franciseo on particular days) and_

for developing a EV idea’ ’ for use by the Teamsters’

emecongigemne,

‘ Petitioner did nor indicate What he meant by. the word

“syndic: ate” (Tr. bed dail

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- Enion in connection with a radio or televiston show

; (Tr. 1 167- 169, eid, 317 ~3Y, 32 1, pee) my ou dS T, 34 ¥

» 360). When Beriton showed petitioner. a, copy of this

letter, _ petitioner became ** agitated” and said that

Stein was a foop and thai po one would believe that

story (Er. 168, 2) ym 344-345). “Pe ‘titloner told Be nton

that he should contact petitioner in, the event ‘that gov

ernment agents came around agai (Tr, 421). . After

consulting With Stein, Benton submitted an aflidaxit

dated June.27, 1958,.t6 the Senate Se leet Commiftee

“on Impropey Activities (the “AeClellan C Jonithittee"’),

in which Benton related the samp story containéd in

the letter of June 8 4Tr. 1! 8-161, 86124. X. 3). The

affidavit was*false because Benton hae not made the:

truck surveys (Tr. 155-156, 163, 166. “168, B49, “B52,

361; see Tr. 437-438) and had not pe rsonally ree eived

the money,

. The first ovend i jury y (Count 1). Inthe spring of

1962, a federal grand jury, sitting in Laos Angeles,

commenced ah Investigation of Stacher’s Sfiossible un:

disclosed VWrership interest in the Sands Hotel. in

Las V egas, Nevada (Tr. 135-136, 560). Pefitioner,

who Mad previously told the F.B.L. that he knew

Stachér only on a social basis’ (Tr. 487), apparently

gave the grand jury the sane account { Fr. 448, 450,

487, 498). Ee ee ee

On May 27 or 28, 1962, Benton received a Messaeg

indicating that Assistant U nited States Attorney

Benjamin Farber had telephoned him (T re. 148, 387;

see Tr. 614-61; »). Benton reported this to petites

(Tr. 148-151, 387); who told | Benton rot to worry, and

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- that they would discuss the duatter” alter Benteri *

talked to Farber (Tr, 149, 151, 387). When Benton: |

returued the call, Farber reque sted Benton. To come.

on J we cite to amswer a few questions before the vrand

jury And told him: that while he could not state

What the inVesdgation was about, Le niton Was Hot per.

sonally “the subject vof, the investigation (Tr. —

Benton oeropd te appear (Tr. 150, 233). ak . &

| Shaptly the reafter;. Jenton tele ‘phoned: petitioners

= Tr. PTT When Benton said: that he was going

to be subpoenidied for June. 7, petitioner replied that

‘that Was the last day the grand jury would be ‘in

session before they recessed for the summertime and

Suevested that Benton “take a Vacation” so that he

swonld ndt-he the ‘re on the 7th. (Tr, 233). Latex that

dav. at-a meeting of petitioner, Benton and one Irving

Reiss: petitioner told Beuton that there Was nothing

¢ to be coficerned about, that all Benton had to do was *

to take the Fifth. Amendment (Tr. 151, 153-154).

When Benton said that he was afraid of what his’ ein-

plovers might think’ if he took that course of action, pe-

_titioner replied that there was as “nothing tg worr ¥@pout_ EEN ee ConA

on that score’, and that the : government had “that olner

‘ thing” hanging over his he ad (Tr. 154). (This re-

ferred: to the false atMlavit submitted to the-McCle ‘lan

Commnittee (Tr. 155-166).) W hen Benton expressed

a desire. to ctl an attorney named Marshall. Sevin.

opeutioner told him thit there was no need. to tell p

” Sevin' ‘all the details conceming his grand jury tppear-

ance, that Sevin should be retained to more or less —.

“shold [ Be Aton’s] hand and he therein case samething

should happen” (Pr, 177, 392), 3

: 6 “Y uf '

On. the following day, petitioner told Benton that

he “must take the Fifth Amendment” (Tr. _ 181, 183

He said that Beaton would | have ** plenty of ‘company.’ rd

before the grand -jury “inasmuch .as. four or tive of

the “boys —who_ were idenfifd by. name-. ‘would he

there. CLix Soy. Pet one gave be nity Hoa slip of

_ paper contataing the phritseolegy «for invoking the

Pitty. Aimendinent, stating that Benton should: copy.

the words mn his own Latalwritine aid memorize them

(Tr, 18e- Is) Pe tithe ner and. Reiss then dréve Ben-

ton to las meeting With Sevin, the, attorney (Tr. 186).

“After Benton lisicl « onterred w ith Sevin. for about half

an hour, petitioner telephoned Benton at Sevin's office,

inquired Whether the conference was coneluded, and

said ‘that he would * k up Benton in a fa® minutes

(Pr. 187, 430). ;

Shortly thereafter, Benton and Sevin left the, build-

‘ing, and ‘when petitioner” and Reiss drove up, they

entered: pctitioner’s automoliite CR. 188-189, 430-43

437). °Sevin,. who had been told hy Benton of ‘th

false affidavit (Er, 457-438), ‘said that he saw n

oe —_

reason why Benton should invoke the gs Amend-

ment before the grand jury (Tr. 190,-431-432), i Pe-

titibner replied, ‘No, he has got. te ont the Pifth

Amendment’? (Tr, 190. 3925394, 482) 0 and added. that

there was “something that they have. got that makes it

absolutely imperative for him to go down there and

‘take the Fifth Amendment” (Tr. 191, 192, 394, 432 ).

When Sevin .vepeated his opinion, petitioner raised

: his-voiee, and said, “He has- absolutety cot ws take

the Fifth -Amendine ‘nt, he-has no other choice ce””’ (Tx,

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191-192, 4236). Sevin testified that petitione rs maim: ~

ner of speaking was wot that of a person merely

njaking: suggestions or giving ‘advice; that his: state-

meiits were not “in the form of questions. as: much -

as they avere a-manner of a demanding nature. they

Were Urgent insistence” (Tr, 436), Benton testified —

that he had never before seen petitioner i In- such a

condition, an that. he Was frightened” (Tr. 194,

POT-2OB ): * Sevin then told Benton: th: ut the “heys”

| Were. “right Mhat heesaw their: “point”, and that:

Benton bad better take the Fifth (Tr. 192, 395).

On May 31, 1962, a subpoena was issued to Benton,

divecting him to appear and testify prygetng grand

#

jury-on June 7, 1962 Pre 2 B4E23Q, GIGI: Go Ex.

4). On thi date, Benton Appe ared before se ond

Jury and invoked ‘the Fifth Amendment to diestions

whethe rhe: Was ever an employ ee of Cole, Fischer &

*Rogow anid whether he had eve) r seen an individual

“named | Joseph .Stacher “(Tr. “1362137, 223; G. Ex.

2). After invoking the Filth Amendment to another

question, Benton was excused. Benton testified . that.

—— he-pleaded the: Fifth Amendnient bec ‘ause of the. *an-

a “sistence”’ of petitioner that he do so ¢ Tr, 226).

- va After leaving the Federal Building, Bentor tele-

phoned petitioner (Tr, 227-228) who arrived with

° ° . a > ok > v4

what’ quéstions . lad been asked and the answers. he

_ had given (Tr. 228), Petitioner said that_h he wanted.

i Me ee

ee a a ae *re: 4 . :

—— ——- Savin testified that, whilé he never changed his mind. about

the course that Benton should follow.’ thy nevertheless * ‘ver-

‘alized an gpinion that he did not aptually hold (Tr. 4384: 9),

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4 Reiss a few minutes later. Benton told petitioner.

oy!

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to take cate of Sevin's fee! thet Benton should pay

Sevin by Check, and that. petitioner would Feamburse.

Benton «( Tr. 230;-see ‘ly. 252), ° Late’ r, Benton paid

Sevin's fee of #100, and petitioner gave Benton a $100

bill (Tr. 231, 265, 396-397, 442), — a

“On June 21, 1962, Betiton voluntarily contacted

| government agents and gave them. a sWorh statement,

part of whieh concerned the false affidavit submitted

on behalf of Stein (Tr. 2: 34. 236, 239-2409396-397 ):.

No promises or inducemetits were made to Bento:

(Tr. 401). a ab

3. The second grand jury (C oust I7). InJuly 1962,

another federal orand Jury commen ed an Investiga-

tion of petitioner for possible perjury: and obstrviction

Of Jtistive before the tirst grand jury (Tr, S125, a

137-1: 38; G. Ex, 2), Petitioner knew ye Was be-

Ine investigated by the grand Jury (Tr, 123-125; see

Tr. “Liv- 113). Ow October 9, 1962, “Beatin, Was sub-

poenaed iw appear before that body on October 18,

1962 ( (Tr, 2 35-236: G. Ex. 5). - 8

Shortly thereafte r, Benton tele ‘phoned petitione rat’

the request of an Assistant United States Attorney

and infortied wim tliat he had -receiy.

to appear On October IS before’ the wivind jury (Tr.

240, 244, 291, 399), : “No government went male” any

suggestions” as*to what Benton was to alk about, and

the. conversation was. recorded with Benton's knowl-

dia stdbpoena

eds ge and ¢onse nt (Tr. 251, 399, 406-109, 622-623 : Gi.

-¢

e.’

"Ex 7). Benton. ee petitioner that he thoutht that

he gvould go down and testify. Ww hen Benton said

that on his first appearance: he Was questioned only

\

ANS

about petitioner, Stacher and others, and that ‘He

believed: that the inquiry would not go beyond that,

petitioner replied, “No, this time is different. This

time it's.6n the union thing, kid.. 'F hey are hammering ~

/away on that pretty good TL understand. ° All over

~ the country. That's where you hate got x probleri”’

(Tr. 247; G. Ex. 7). . Petitioner -sat that Benton

ot

should net contact Sevin ‘tvet’’) and arranged: to. .

gm ee pace Nig

telephone him later . ‘

On the followitie day,’ ‘petitioner aor Reiss picked”

up Benton, Who had x radio tr: ansmitter cone ealed on

. his person, . and. the trio drove th. the Bantam Jowk

Restaurant (Tr. 252- 253, 623624 ). Petitioner“asked

Benton Where he -rec -eived “such a silly ides as hot

—"to go down and take.the Fifth’, stating that that was

fodBish , and Be nton “must gu down And take. the’

Fifth” (Tr. 953). Petitioner sad that the only way

senton could get himself into UY “trouble” Was. by

testifving, that everything woul be ‘tail right” if

che. kept lis ‘*mouth shut.’ and that everyone im his

“: office and even his maid hi taken the Fifth CPr.

260). Petitioner then: ‘told Benton that he would he

“stupid” not to take ithe Fifth, pointing out that

other. individuals hid? Sal the idea g'- . testifving but’

that Ffortunately git [petitioner] had been able to’

talk them out of it” (Tr. 261-262). Petitioner said:

— that, Benton should talk to a good attorney”? before

that he: hid Sey¥i in mind, petitioner replied, * ‘No,

making up his ay (Tr: 2653). When Benton said:

AL don’t? mean like” Marshall Sevin, | mean areal

heavyweight, What vou need is: a real he avyweight”

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(he, 263). Petitione?: then sugiiente e" ‘the name of

an attorney, stating that Te weuld arrange an ap-

“pointrient. Wher Reiss said that. the attorney was

“too high-priced”, petitioner replied, “Don't worry

_abenit: that, we will take care of it” (‘Tr. 2o4, 404, 406),

~Inan “excited and loud” tone of voice, petitioner said,

“Now, don’t forget this, Joel, ** * if vou do testify

vou. Will lose vour-job” (Ty. 201, 657,. 6 28, 63 326233).

' He also said** Lawill sce to it that if voudo take the

Fifth; vou do. not Jose your: dey CPr.-261, 632-633, -

657, 658):: é ee : a

On pees 17, 1962—the day before. Benton’s:

‘scheduled grand jury -Appearanee—peti hongr tele-:

phoned Benton and arranged to meet. him that day.

At about 12:30 p.m. petitioner and Reiss drove yp to:

au parking: lot and. met Benton (Tr, 269-270, 549).

Petitioner told Benton< that he “most assuredly’’,

A ould lose his jeb-if he testitied ; th: it he should dis-

cuss the situation with Nate Stein hefore doing:

“something, foolish”: and ‘that: nd. one would believe

him (Tr. 271). Petitioner then said,.** Joel, évep if

> vou don’t eare ‘about what, happens to Ygurself, re-

niember this; vou have got a lovely wife and’ family,

i

and-° .* you wouldn't aegis apythine to happen,

to them, would you?” v.92), When Benton

replied’ in the ntgative, petitioner. added, © Well, *re-

member: Jimmie Hoffa's boys are mighty rough”

(Tr. 272), On ‘the Owing day, the grand jury

retiigped the instant [i indjctment. _ :

4. The instructions: In‘ its instructions to the jury,

vat district. court: charged that Benton had tlie right

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to invoke the Fifth Amendinent he fore ‘the grand: jury;

that petitioner did not request Benton todo something’

‘illegal ; and ‘that the petitioner had the right to advise

cand pe haps argue that Benfon, should ‘take the Fifth

Amendment (Tr. 932). The’ court. iSo- Charged, in

part. (Tr. 934) ; x hap

3 ©

- Phis. would. he a comparatively: éas asv case if

_ the government had. been ‘able .to prove that

* Benton Was asked to do something’ illegal, but

becaiise Bentcn was asked to do something that

Was not ‘illegal, you have to find net onky inh

the -request was made, bug it was made in: such

a way that it was more than a request; that. it

Was a demand, that it: Was a Tsistenee, =

pets defendant did some oung that le Was not

entitled ta do, e ee

ioe “ARGUMENT.

>» 8

apes is Petitioners « conte ntion salle: He In this.

case ‘could. hot have ¢ constituted ch ebstruetion of:

Justice of the sort prohibited.by 18 U SE, 1503 Tw

; cause the Witness Was constitutionaliy entitle d te elaim

the privilege ‘ininst self- “Migripaination iss without.

merit. The's constitutiqnal privil¢he seo cena

a protects. a witness against beifig compelled +

- provide answers iis h might’ re asonably tend to

ineriminate hina, but #f niay not be Used “as a pretent

Poop seenring Lanninity: to others, me Brow WV. Walley.

lot US. 594, D7, 600. ‘The effect of invoking the

privilege is to foree tosé a line of: INQHITy ; hence the:

restit. of an improper resort. te? jhe privilege. iS as

hi irmful to the die administr; ation of: Justice ens if the

Witness: were foreibly or frandule tly prey ented from

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appearing before the grand | jury. ‘There is, for: ex-

ainple,. no practical - “differ rence between bribing oa

prospective witness to flee the jurisdiction and bribing -

hint to invoke an available privilege against self-

incrimination whic chahe would nat, otherwise claim.

Kat} ler action obstructs the proper administration of

os justice, and both are cov ered by the ine lusive Jangus ave

én

!

of the governme ‘statute.’ / Nor, should: there be any

diffe erenre between the payment of a bribe to ind nee

a Witness to claim the prifilege against self-inerimina-~

“tion and What this record disc. sloses—1..; tie tise of °

threats or other Coercive bieasires to-compel a witness

to invoke: this privilege. of silence despite his ex-

pfessed intention, buttressed ‘by advice of counsel, not.

to claim it. Consequentiy, although the witness might

personally “invoke the privilege, it is unlawful fora

third party® to coerce or induce him ‘to claim it for.

the protection. of "the third party.

2. The district court charged (Tr.: 9: 2. 2-934), that.

one does not. violate: is U.S.C. 1508 by recomme nding

or advising that. a witness invoke his constitutional

privilege ¢ against self-incrimination. The j jury, under

* the judge’ s charge, . round that: petitioner’s acts went.

beyond inere adviey“a and that they amounted to threats. ~

or coercion done W ith corrupy motive, There was, as

—_—_

‘It has ion said that IS Us.C. 1505 prohibits any one of *

the “variety of corrupt methods by which the proper admin-

istration of justice may be impeded or thwarted, & variety

limited only by the imagination of the erininally inclines.”

Catrino 'v. United Ntates, 176° F. : dd 884, SST (CLA. 9). See

also United States v. Russell, 255 U.S. 188:¢U'nited States v,

Polakof. 121 F. 2d 333, 334 re. A. -2), certiorari: demed. 314

Us , 626.

eee ae ‘

the court: of “appeals concluded, substantial evidence

from Whe he the jury could infer that. petitioner's. :

inotive Was to prevent “any investigation pf any rela-

tionship between’ Stacher and Cole" ( Pet. App. I4),.

and not to protection ” senton’y. constitutional, rights.

That such conduct violates tlie statute Was settled by .

this Court’ Bs epmion in Grunewald y. Viited States,

BO3@ IS. 391, 424, when it said: fas a aes

Finally, we find no substane “to Th: viperin” Ss.

“contention that’ he was in ‘effect convicted for,

advising, as a lawyer, some of the witnesses

béforé the grand jury that they had a right

to plead their Fifth Amendment privilege: |

The evidence ‘against Halperiii tinder, these.

Counts, was quite suffieiént to make-out a case,

for submission to the jury. :

See the discussion of this point in the court (of ap-

peals’ opinion in United Stites y. Grune ald, 233 F.

3 ber 970-571 (CLA. 2),

. Contrary | ‘to petitioner’ 8 assertion (Pe | 19-21), 3

tiie decision 6: the court of appeals does not contliet-

with Rosner v. United States, 10 BF. 2d 675 (CLA. 3),

where it was held that it is net an obstruction of

justice to advise i a-defendant in a‘eriminal case to dis-

regard. it letter written, by.a prosecutor requesting the

defendant to appear fi court. In ‘United States Vy.

Polukoff, note. 4, supra, the ‘Sec ‘ond Cireuit: Ifmited

Rosner to its special facts, the court néting path since |

a mere* request. by the prosecutor that’ an accused

appear could be disregarded as” not - compulsory

‘ proeess, advice to that end Was. not illegal.’ - i ae

2d at 325. In the instant ease, on the other hand, cor-

. .«

¢

YQ 2, fy hfe

rupt methods were employed by petitioner t

0 Induce . ‘

another ty me. ve certam statements: while under oath

and in the course of adawful en rand jivey Investigation,

Tene eit cannot be said here, as it Was in R Os

(Retitione T's acts did net concern, any part of

* ful “administr: ation” of justice:

“CONCLUSION ~ 5

ner, that

the law

Ror She ; reasons set fyrth, we respectfully submit: 4

’

that ‘the petition for a writ of certionnry should be

ai “dl. ‘4

ARCHIBALD. Coax.

>

es J. Miuer. J

Assistant Athorne Y Geuc eral.

anian cae ae Beatrice ROSEN BERG,

Solicitor Geni ral,

Ky,

Richare W. Sear DE,

Atlorneys. 9 3 . }

May 1964 ee en enn

_—_———

| nite Ntates Vv. Hipron, 2s F. 2d 2. Was a district court | ‘

Case in the Northern, District of. Cali fornia and if

/ Was, overnuiled by. the Opinion below,

- be °

ne

Ps

~

f applicable