# Brief for the United States in Opposition — Cole v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1665%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1964 - **Citation:** 377 U.S. 954 ## Text a ka ethernet era aS Heenan a * " en ad ‘ * EFNDEX: Saris . 9 * Paue 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 . a “ S CTT ATIONS e : o (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. + e e ? . : 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 ®: t “’ ) fs 3° ~ 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 ° . : s : ee “oN PETITION. FOR A WRIT OF CERTIORARI TO THE UNITED STATES € OER T OF APPE ALN FOR THE NATH CIRCUIT - zy ie RIEF FOR THE UNITED STATES IN OPPO ITION . & a > 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 Sy eonyieted of obstructing justice under 18 a 8 > ° ry . : % - , ; ‘ 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. 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), a 3 4 Reiss a few minutes later. Benton told petitioner. oy! 8 ‘ . b . . 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” 2 ¢ at a4 . wo “ 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 tg S ¢ : ©? eer m zs dy 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 x \ 7 “ ~~ . . a) es 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1665%3A3. Public record. Not legal advice.