# Petition for Writ of Certiorari — Rutherford v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1736%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 377 U.S. 994 ## Text af =e Office Spreme Court. U.S. e i" TARY FILED JOHN F. DAVIS, CLERK Supreme Court of he Rie ies October Term, 1963 «Tl Tis7 GEORGE ALBERT RUTHERFORD, Petitioner, against UNITED STATES OF AMERICA, ~~ -Responde nt. ——— —— vena ee or canes eee ~- — " PETITION FOR A WRIT OF CERTIORARI TO THE z UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT : oe ae y L ee? Frank Serr, Attorney far Pétitioner, | Office dnd P. O2 Address, ‘66 Court Street, Brooklyn, New York, . 6. ~ A a \w } = Dy aa : '. INDEX rs et ; PAGE Opinion Below pete wt ay beeen: yeeros ar See | Sttaement of Grounds of Jurisdiction ...... sWidemes 1 Constitutional Amendments —— Were ere re ee _ Statutes Inqplved . higehees peda ak sie oe 6TES ae kes i ae Indictment ........ SS Rep y ivetarebe EET HR 2. Questions Presented for Review ... es ec etaie err a MUPONIS OE CAD in cok ca sevice bdeccesees jean 28 Reasons. for Granting the Writ d chess , ek hee es 1 : Conclusion ren es ae a, ae wae Sais Sk a » APPENDIX. A—Opinion of U. S. Court of Appeals for. «, the Seeond Cireuit Tree ‘vitae Vicaue a): ae 13 Table of ‘Authorities Cited , C ASESS . i Carlson v. U. S., 296 F. (2). § 909 ° Serer sere 10, 11 : ~ Hyde v. U.S., 225 U.S. 347, 391 ere rer ey ae * © “ Petersen v. Greenville, 373. US. 244, 265-.. .::: , 8,9 a9 —— Reat v. U. S, 209 F. (2) 893, 900°........ ans ~ _ Schenck v. U. S., 249 U. 1 Serge seceegce DD Thomas v. Collins, 323 U.S. 516, 536 ..... Se Soap \ € Thompson v. Louisville, 362 U.S. 199 ...... aien ae 9 U. 8. v.-Allemp317 F.-(2) 777 ..5.2..0. 0.00005... 101 | Srarvres: _ st ee Tite 8 E870. See ae ee 2,3,4,9, 10 Title 18 U.'S. C. See. 35(a)(b) wiih aha Mrscetarous: e ee. ° “a ° -" 4h Vv Grorce Arsert RuTHERFORD, - 7" % ; soc a Petitioner, « against are rh * -, Usirep States or AMERICA, ae on | . ; Re puree ¢ ‘ a ,, ve Statutes Involved ets “Title 18, U. S, C. See, 32: , a ep eresans wintaily sets fire to; Ralncene, ‘datsiogs, - disables or wrecks any civil aircraft, used, operated or émpleyed in interstate, overseas,, or foreign air commerce ; or Whoever willfully Sets fire to, damages, ieaieni. disables or wrecks any aircraft engine, propéller, appliance, or spare part. with fittent to damage, : ee disable or wreck any such aircraft; or- * Whoever, with like intent,. willfully places ‘or causes to be placed any destructive substance. in, upon or in proximity to any such aircraft,or any aircraft engine, propeller, appliance, spare. part, fuel, lubriéant, hydraulic fluid, or other material used _ or intended to be used in connection with the opera- tion of any such aircraft, or any cargo carried on any such aircraft, or otherwise makes or ‘causes to be made.any such ajreraft, aircraft .engine, - prapeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material . unworkable or unusable or hazardous to.work or @se; or Whoever, with*like intent, willfully sets fire to, ae destroys, disables, or’ wrecks, or places or ~ecauses to be placedoany, destructive substance. in,. upon 6r in proximity to-aliy shop, supply structure, - station, depot, termimal, hangar, ramp, landing area, ' air navigation facility or other facility, warehouse, “+ trict Attorney did not understand the term. The witness repeated it by emphasizing and dividing the word into two parts—‘‘Ham Bone’’. The very flifficulty of the Assistant ; Bone’’—suggests the inevitable eVolution. Possibly, after District: Attétney in inital ey the nickname—‘‘Ham . Captain Ohlin left the Merchant Marine about 25 years ago, other seamen had the same trouble with this oddishi and too long a nio§name. Some practical sailor cut the Gor- _ dian Knot, and it became the shorter and more easily pro- ba) . pouneable ‘‘bomb’’. In conelusion, Captain Ohlin’s own testimony, in ask strongly supports the ee “version. . ; ° b) Was thers any conversatign about tail blowing off. © and that petitioner did not care, he had plenty of insurance?. , "Tite stewardess was the, only witness, out of seven em- ployees on the. plane, who claimed she heard somebddy say something “about ‘a tail blowing off’’. And afterwards, shv remembered that the. petitioner said ‘“‘he didn’t care, he had plenty-of insurgnee"’. But not a word as.to how the conversation started, who started it, or its contexttyins given by the. witness. * Clearly, such testirhony—without specific beginning and connection, was inadmissible, mis- leading and prejudicial. The defendant positively denied any @onversation about ‘the tail blow ing off, and that he ‘did not care: because he ad plenty of insurance (16a)... It is significant that the satin testuymon: on behalf of the prosecution as to th@aords used by the petitioner, was that of the 25 vear old stewardess. The very absence. of all other possibte witnesses,—Captain, co- pilot and four - other stewardesses, the F.B.I. agent to whom the petitioner told his story, and other passengérs—is strong proof that the petitioner’s explanation was substantially true. - e) This, we repeat, is'a unique and exceptional case: the sextant in bor of petitioner with the other evidence, .) ; f : , v . 3 ‘ ‘9 : 8 constitutes an exceptional case and creates a reasonable doubt as a matter of law. If the petitioner had been an ordinary passenger, and had never been to sea, it might be argued that his explana-- tion created an ordinary conflict. But the very presence of the sextant in his box, his record in the Merchant Marine, and above all, the partial corroboration by the Govern- ment’s sole witness, Captain Ohlin—when added together, constitute a unique, exceptional case. Clearly, this: is not . the average case where an ordinary conflict is settled by the trier of the facts. Here, the unusual facts sproduce an entirely different, ‘indeed, an extraordinary situation. Under such unique circumstances, it is the appellate fune- tion of review. that becomes paramount. Of what meaning _ are the ancient and still valid principles of Presumption of Tnnocence and Reasonable Doubt if they donot tilt the seales in petitioner’s favor as a matter of law? O& course, it is impossible to compare the peculiar facts in various cases. However, the ‘total «absence of any criminal intent, any criminal, conduct—a scientific instru- ment is referred to by its vernacular Trade name and a defendant is convicted—brings us within the ruling of? Rent v. U: S., 209 F (2) 893 involving the possession of marijuana.- In reversing, the Court wrote, page 900; ‘‘There was no substantial evidence against ‘the defendant of a criminal intent. . The ‘evidence was . . consistent with innocence. It is too much for a man, to be imprisoned for two years for merely\picking . up and throwing away a cigarette.’’ ite? Instead of a cigarette, the petitioner picked up and used a word, a trade rfckname for a scientific instrument. & Insufficiency of: evidence cannot be more graphically por-_ trayed. ‘It comes within Harlan’s concurring opinion in Petersen v. Greenville, 373 U. S. 244, 265: ‘*A conviction so lacking in evidence to support ° the offense must fall under the 14th.Amendment.’’ ‘ —_~, * . ° e on “we And practically, it parellels the ‘‘totally devoid of “evidence”? condemned in. Thompson v. Louisville, 362 U.S. . 199. . . a "4. Analysis of opinion of Circuit Court of Appeals. ; - a). In it, reference is made to the parts of Sec. 32 making the damaging, destroying. a plane,.or attempt to do so, a erime with no mention of intent. That is true. Implicit in such acts or attempts is the intent. Ditferent, however, is possession of a bomb or destructive substance. Such possession may be’ innocent or equivocal. Therefore, See. 32 expressly provides that possession becomes a crime only when there is the intent to damage and destroy the plane. And, consequently, a charge of false information about possession must include the intent definitely set forth in See.: :32. ' b) The Cireuit Court relies on the classic dictum of Holmes about shouting fire in theatre, Schenck vy. U. 8, 249 U.S. 47, 52. The error stems from failure to recognize the pivotal difference between Sec. 35(a) and’ Sec, 35( b) -as amended in.1961, (In the later, See. 35(b), was placed the genuine ‘criminal activity : “Whoever willfully and “malic tously or with reckless disregard ‘for the safety of “human life, imparts,’’ ete. Since Section 35(b) prohibits bad, dangérous conduct, it might be sustairfable on -the analogy’ of the shouting fite-in-theatre dictum. On the other hand,. tested by the same analogy, Sec. 35(a) is invalid. When an act is not willful, not malicious, > not in reckless disregard for the safety of human life, it is not criminal. It is inadvertent, accidental, innocuous and’ .innocent activity. It is not blameworthy And as Holmes wrote, although, with some waverings : | ‘criminal liability ** * is founded on blameworthi- ness’’ The Common Law, p. 50. ec) The conventional phrase of the Cireuit Court,. that the findings are based on ‘*contlicting but suflicient evi-. eee - 10 dence’’, reveals a a per of appreciation. of the unique. and exceptional charac of -the instant case. As we have pointed out, if this were the case.of an ordinary ‘passenger | who had never served at sea, the finding by the trial judge as to the petitioner’s explanation would. be final. Not so in’a unique and exceptional.case. Once the sextant was found in the box of petitioner, plus his U. S. Merchant Marine service, and his: testimony ‘as to the nickname, and especially because of the partial corroboration by the government witness, Captain Ohlin, the character of the case changed: It was no longer an ordinary conflict; settled by“the trier of the facts. ‘It became a unique, exceptional case, and by ifs extraordinary nature, creates a reasonable. doubt as a matter of law. » . d) ‘*An information in this form was -webieta by this Court in U.S, v. Allen, 2nd Cireuit, 317 F (2) 777.’’ That is. incorrect. It- overlooks the undisputed fact that the supplemental! information, at issue in Allen; was not similar to the Rutherford indictment. Allen differed in one vital item: It set forth that dn attempt was being: made ‘to damage and destroy the plane. Consequently, tlie supple- mental information in. Allen was both different anf valid. Therefore, the ‘Allen comment as to inten t was dictum, and, we submit,.erronéous dietum.e The ‘eontrary ruling in Carlson, 9th Cireuit, 296 F (2) 909, should he preferred.. The Cireuit Court, bas misunderstood the petitioner’ position as to the inadequacy of the indictment.’ The amendment of Section 35(a) in 1961, has an important bearing only on the validity of that section.. It has none whatever on the adequacy 6f the indictment. Both* before and after the amendment, if the indictment omits an essential of*the crime, it is inadequate. | Besides, there was no amendment of Section 32. ‘Tts provision’ that possession of a bomb or destructive: sub. stance constitutes a erime only w ith intent to daniage and destroy plane, remains unaltered. 3g — : ? ¢ ‘ eck ae Reasons for Granting Writ (The first three are similar to those in Sulliv an v¥.U.8; , Petition for Certiorari, No- 1401 Mise:) - _ 1. Conflict in decisions between 9th Circuit, in Carlson - .v. U.S., 296 F. (2) 909, and the 2nd Cireuit, in U.S. vy. Allen, 317 F. (3) 777, now followed by two ether cases in 2nd ' Cireuit, Sullivan vy. U.S. (No. 1401. Mise. in U.S. Supreme Court), and Rutherford y. U.S. (the present petition) should be resolved. . 2. The Carlson decision that intent element should be set forth i in.the indietment—whaén false possession of bomly , is charged—is the correct ruling. It keeps the issues in’. focus, and promotes the fair administration of. justice. It should be adopted. 2 Since Title 18 U. S. C. See. 35(a) applies to air traffic im interstate commer%e all over the United States. and since this traffie i is constantly inereasing, public policy ‘requires that the issue of the validity or invalidity of this Sec. 3o(a) and the inadequacy of the indietment be decide d promptly. In such a sityation, ‘*the passive virtues“, over! extolled by Prof. Alexander M. Biekel-in “The Test Dan gerous Braich’ pp. “113-198, and sometimes . justifiably A practiced, should not be follow _ inpthe instant case. 4. In addition té the three reasons ubove—identical to - those in Sullivan vy. U.S, _ No. 1401 Mise. — there isa fourth reason: ordinary conflicts can be setthed by the trier of facts, whether judge or jury. A different principle must be applied whén the situation is’ unique, exceptional an id extraordinary. In. suéh a setup, a reasonable doubt? created as a matter of law. If this principle is sdigkad § int unique eases, the administration of-justiee will be promoted, fabr trials better: seeured, and due process .of law strength. ened. Particularly Should ‘this be done when there is in volved a new statute, never before interpreted by the U nited States — Court. Sa CONCLUSION tevin eben eit 3 Wee ot Con tiorari should be’ granted to review the judgment of - ee a, ee my Circuit. Respectfr'ly submitted, Frank ‘Sern, Attorney for ‘Petitioner, Office and P. O. Address, : ’ 66 Court Street, . Brooklyn, New York. - % 6 13° APPENDIX A Opinion of United States Court of Appeals for the Second Circuit U sie raed STATES COURT OF APPEA LS For THE Seconp Cirévit No. 330_September. Term, 1963. i (Argued March 6, 1964 Decided’ May 27, 1964.) 7 Docket No.. 28584 eee nt a . eet | . en Sarl Unirep States of AMERICA, oe 4s Appellee, “against ° GEORGE ALBERT ‘Rutnerrorp, Defendant-Appellani. a Before: . : F Waterman and Kavrmays, Circ wat Judges anid Dimeck, District Judae. fa a j é Appeal by Pe ae from a judgment of conviction in- the United States District Court for the Eastern District of New York. Jacob Mishler, District Judav. Affirmed. » Frank Serni,. Brooklyn, New tot for Appel- lant. => oar ? Jerome C. Dirore, Assistant United States At- torney for the Eastern District of New York (Joseph P. Hoey, United States Attorney for the Eastern District of Now York), for Appellee. 44 Dimock, District Judge: : This is an. a from a judgment of conviction under section 35(a).of title 18 of the United States Code, the first part of the so-called ‘bomb hoax’’ ap ‘‘false tip’’ séction. _ A one-count indictment charged that appellant, while on board a United States airplane at the New York Interna- tional Airport, ‘‘imparted and conveyed the false inferma- tion’that he then and there had a bomb, “which. information _ eoncerned an attempt to do an act which would be a crime. -. prehibited by Title 18, U. 8. C. Section 32, and which information ‘the defendant knew to be false.”’ Appellant testified that he had used the word ‘‘bomb” as a colloquial | endian for a marine sextant that he was carrying in a case. | Appellant was senten d to serve tes days with service of the remainder ‘of a year sentence suspended. On a trial without-a jury before District Judge Mishler, the court, on conflicting baat ‘sufficient evidence, made the ‘following findings : ‘*2) While walking near the rear of the said plane defendant said to Ruth Raelo [the airline steward oss],.or within her hearing, ‘I have to sit rear the back because I have a bomb.* eae), After soméone (unidentified) made a state- ment containing the phrase or expressed the thought of the ‘tal blowing off,’ defendant stated that he didn’t care sinee“he had plenty of insurance. *’ 5) The navigatioral sextant .is not commonly re- ferred to by seamen or anyone else as a ‘bomb.* *’ ‘*6) The reference in finding No. 3, concerning — insurance, was knowingly and intentionally made to impart and convey the false information that. the destravtive foree of the bomb would destroy the plane and end: his life.” as - la sae s oe ‘*7) Defendant iiiaaniie and intentionally im- parted the false information that he was carrying a destructive and explosive substance referring to the wooden case holding the navigational sextant.’’ — _ Appellant’s contention that the evidence Was insufficient “to sustain a conviction is without substance. It is contended that the statute abridges freedom of speech in violation of the First Amendment: - Both scction 32 and an earlier’ form of section 35(a) Were parts of Public Law 709 adopted July 14, 1936, entitled ‘An act to punish the willful damaging or destroying’ of- aircraft .or motot vehicles, and their facilities, and for other purposes."" In amended fori it constitutes Chapter. 2 of Title 18 of the v nited States Code. Sections 32 and ° 35(a) are quoted in ‘the margin.* *§ 32. Destruction of aircraft or aircraft facilities “Whoever williully sets fire to. gamages. destroys, disables, or wrecks any civil aircraft used, operated, or employed in interstate, overseas, OF foreign air commerce ; or “Whoever willfully sets fire ‘to, damages, destroys. disables, or wrechS any aircratt engine. propeller, apphance, or spare part with intent to damage. destroy, disable, or wreck’ any such aircraft ; or, “Whoever, with like intent, willfully places or causes’ to ‘be plae ed any “destructive Substance i, UpeNn, OF In proximity to amy such air craft, oF any aircraft’ érgine, propeller, appliance, spary part. fuel, lubricant. hydraulic fluid, or other ‘material used or: intended to be used in connection ‘with the operation of any such aircraft, or any cargo carried or intended to be carried’ on any such aircraft, or other wise makes or causes to be made any such aircraft, aircraft engine,» propeller, appliance, spare part. fuel. lubricant, hydraulic fluid, or other material unworkable or en or hazardous to- work or use; or , r " “Whoever, with like intent, willfully sets firé to, duinage’, destroys, disables, or wrecks, or places or cayses to be placed any destructive substance in, upon. or. In proximity to ‘atiy shoy, supply, structure, station, depot, terminal. diangar, ramp. landing” area, air-navigation facility or other’ facility. warehouse, property. ‘maghine, or apparatus _ used or intended to be used in connegtion with pie operation, loading, or unloading of any such aircraft or making any such aircraft ready 16 :, ‘Section 32 deals with damaging or déstroying aircraft, damaging or destroying aircraft;parts with intent to dam- age.or destroy the aircraft, placing destructive substances on aircraft or parts with like intent, and damaging or plac- ing destructive substances on aircraft facilities with like intent. Section 33 deals similarly with motor vehicles ex- _ - cept that no act is made criminal unless.done with intent ‘to endanger, of with reckless regard f6r, human life. Section 35(a), under consideration in this case, makes ‘eriminal the’ imparting of information, jgowing the in- formation to be false, concerning an attempt or an alleged attempt being made or to be made to do any act which would be a crime prohibited by the chapter. Thus the statute would be violated by the imparting of knowingly | “false information with respect to an attempt about to -be made to damage an aircraft; in. any way irrespective of for flight, or.otherwise makes or causes to be made any such shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility: or other facility, warehouse, property, machine, or apparatus unworkable or unusable or hazardous to work or-use ; or “Whoever, with like intent, willfully —_— me member. of the crew of any sych aircraft ; or “Whoever willfully attempts to do any of the perry acts or . dine “shall be fined not more than $10,000 or imprisoned not more — chan twenty years, of both.” &; aes § 35. Imparting or conveying false information - ~ (a) Whoever imparts or conveys or causes to be imparted or con- - veyed false information, knowing the information to be false, concern- - - ing an attempt or alleged attempt being made or to be made, to do any act which would be a grime prohibited by this chapter or chapter 97 or chapter 111 of this title shall be fined not more than $1 - or imprisoned not more than one year, or both. (b) Whoever willfully’and maliciously, or with reckless’ ingirt for the safety of human life, imparts or conveys or causes to be im- parted or conveyed false information, knowing the information to be ” false, concerning an attempt or alleged attempt being made or to be ‘made, to dd any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this titlke—shall be fined not more than $5,000, or imprisoned not more than five years, or. both. ~ - < * ‘ 17 | the saboteur’s intent, Bina’ damage a* eleee vehicle in any, way, with intent to effdangér the safety of any’ person on board. ~~ If the statute so far as it apblied to aircraft were limited to making criminaltie imp. :ting of false informa- tion with respect to the existence of a bonib on a loaded air- | craft, there could be little doubt that th iving of the false information would be beyond the protection of\the First — Amendment. It would fall within the principle of the false _ ery of fire in‘a crowded theatre, the classic illustration of unprotected speech given by Mr. Justice. Hglmes in Schenck y United States, 249 U.S. 47, 52.. Such speech is characterized as a ‘‘verbal act’’ by Mr. Justice Lamat in CGiompers v. Bucks Stove Range Co., 221, U. S. 415, 439, cited in fhe Schenck opinion. As above indicated, however, the statute goes much farther and, on its face, would make criminal the impart- bi ing .or information known to be. false that someone was about to destroy the motion picture screen on an out-of- service aircraft undergoing repairs in its hanger. Never- theless we need not consider_the question whether a pro- vision of a statute denouncing that act in those terms would offend the First Amendment. As applied to the act of which appellant was found guilty, the act is clearly constitutional. The decision of the question whether the act is unconstitu- tional as applied to some other set of circumstances must _be. left for a‘case which raises that question. United States v.,.Raines, 362 U. S. 17. Appellant’s contention that the statute is unconstitu- tionally vague in that its words permit conviction for innocent acts is answered in the same way. There is noth- ing vague about its application to the’ ‘facts found by the edurt below. Finally. we are told that the. indictment is defective as it omits: an essential element of the crime. It will be remembered, that section 35(a) makes criminal the impart- ing of false information concerning an attempt ‘‘to do aay act which would be a crime. prohibited by this chapter.”’ Beds neh ma a oe -The‘indiefment charges that the defendant, while on board - ai} aircraft, ‘‘imparted and conveyed the false information that he‘then and there had a bomb, which information con- cerned an-attempt to do an act which would be a crime pro- ~ hibited by, Vitle18, U.S. C. section 32, and which informa- tion the defendant knew to be false.’’ Section 32, therein referred to, is part of the same chapter as section 35(a) - .. and penalizes, among others, whoever willfully places any destructive substane an aircraft ‘‘with intent to damage, “Aestroy, djsable, orwreck any such aircraft. 5 The alleged. defect in the indictment is that, while it’ stated that the imparted information concerned the placing . ‘of a destructive substance on an aircraft, it failed to state - ‘that it was a placing ‘with intent to damage, destroy, dis- able or wreck”? the aircraft that the information concerned. An information in this for m was upheld by this court in United States vy. Allen, 2.Cir., 317 F.2d 777. Counsel seeks _ to distinguish that case on the ground that seetion old 35, _which was there concerned, differed from the present sec- tion 35(a) in that. section old 35 penalized whoey er, “will fully’ imparted the false informatiin, while section 35(a), “which —— identical, omits that word. ~~ We fail to understand why there is. mor® need for alleg- | ing intent of the saboteur in a case where willfulness of the informer is no part of thé crime than where the informer’s willfulness is necessary element. We held that this court's decision in the Allen case is applicable. here and we _ adhere to it. =i : The judgment. of conv iction is affirmed. 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1736%3A2. Public record. Not legal advice.