Petition for Writ of Certiorari — Semler v. United States

y Otte Supreme Se"

oe a Rit

i eae IN THE

* JUN +e !

Supreme Court of the United States

| sont FM

Me October Term, 196

. No. be YH 2

-NORMAN NATHAN SEMLER,

Petitioner,

UVS.,

\! Unitep. STATES °F AMERICA.

_ ' Petition for Writ of Certiorari to the Court of »

Appeals for the Ninth Circuit.

Davip M. RIcHMAN,

301 East Olive Avenue,

Burbank, California 91502,

~~ Rocan & RapbpING,

301 East Olive Avenue,

Burbank, California 91502,

° | Attorneys for Petitioner.

\

Parker & Son, Inc, Law l’rinters, Los Angeles. Phone MA. 6-917].

7)

SUBJECT INDEX

ye! Page

‘Opinion NR he catcaencernesi iclictaumacenaiales 2

Grounds on which the jurisdiction of this court is

GVO YER . 5 caccncen5--snnsuneannarccncentnvesnoninnncnsnonsannngeoonsyesnce -

Questions presented SR REE SORDD ONE UN 2

Constitutional provisions and statutes involved | aoe 3

- Reasons for granting Writ and arguments amplify-

amet I UII anne ewiseaneconnennenecnaneettnictnenprssninan >

ab or sea ac we

7 Appendix A.

Opinion of the United States Court of Appeals

for Geb Nits CCN 28. serene App. p. I

Order -........e--eeeececeeeeeceneeneeceneneneeneeceeenteed App. p. 4

Appendix B. |

_ Instruction given by trial judge at beginning of |

ANE occa aes iat Zessaaccatactoosesnaa App. p. 6

TABLE OF AUTHORITIES CITED

Cases Page

ubeon & Trial v. U. S., No. 18,410, April 8, 1964

a ie er a eens anes Ee AE

Bolger v. U. S., 189 F. Supp. 237, aff. 293 F. a:

368, 371 + S. BNE Pincsuceiinc, sapetesakcaetancion cauoiaamtadies 6:

eee Aes a Oe Or ene 10

‘Marshal v. U. S., 360 U. S. 310 -occeccccccstecccsecceeeeeeee 10

McNabb v. U. S.,.318 U.S. 332 .sccccccsssesssseccecsceeseee 10

* Morissette v. U.'S., 342°U. S246. eccssssscsseneee eS

Geios.v.'U. S., 67 F. 20 SAT .....................: te 6

Smith v. U. S.,. 230 F.:2d 935 -W2.-......--n-.nennenenesnveeseees 5

United States v. Allegretti, cane re OU 5... (Apel 22,

LOG4) --neecesceeceeccteceeeceeceneeneeensennsenseensennennesnneenennnenaes 8, 9

United States v. Grunewald, 233 F. 2d 556, rvrsd.

Be Ge | eee SRE ee ROOT casts 10

_ United States v. Infusino, 131 F. 2d 617- ............-: i

Rules |

Federal Rules of Criminal. Procedure, Rule 1 .......... 4

Federal Rules of Criminal’ Procedure, Rule 2 .......... eo

Federal Rules of Criminal Procedure, Rule 30 ....3, 4

ice eicaeecal taenia cantenniesa concede celonseeliataaseaniuanadaundaiies . 5 6, 8, 10, 11

Federal Rules of Criminal Procedure, Rule gate 2

Federal Rules of Criminal Procedure, Rule 52 ........ 5

: ; Statutes a

Uuited States Code, Title 18, Sec. 371... 15

United States Code, Title 18, Sec. 641 2.000.000... .s

United States Code, Title 28, Sec. ye ies 2

United States Code. Title 28, Sec. 1354(1) ........... os

United States Coristitution, Fourteenth Amend-

ment ......- allel aaeslleineticincs seas rans opaboni ee, Se 3

-. IN THE

Supreme Court of the United States

October Term, 1963

S Speeorse j

NORMAN NATHAN SEMLER,

oe

Petitioner,

VS. -

UNITED STATES OF AMERICA. <

*

Petition for Writ of Certiorari to the Court x

Appeals for the Ninth Circuit.

To the Honorable Chief Justice Earl Warren and to the

Honorable Associate Justices of the Supreme Court

of the United States: .

Your petitioner, Norman Nathan Semler, respectfully

prays for a ‘Writ of Certiorari to the United States

Court ‘of Appeals for the Ninth Circuit in order to

review its judgment affirming a conviction of petition-

er in the United States Court for the District of Ari-

zona on four counts of a ten-count indictment charg-

ing violations of 18 U. S. C. Section 371 and Section

641. The jurisdiction of this Court rests on 28 U.S. C.

Section 1254(1).

*The indictment charged that. petitioner conspired ‘in

Count One with all deféndants to steal Government

—

property and to receive stolen Government property. —

Three additional counts charged the. petitioner with re-

ceiving, concealing and retaining thirty-four radio re-_

ceivers-transmitters from salvage airplanes at an air

force base in Arizona.

Opinion Below.

The opinion of the Court below and the minute order

filed after the petition for rehearing are not yet re-

ported. ite

. Copies - of the opinion and the minute order are at-

tached hereto and marked Appendix A.

Grounds on Which the Jurisdiction of This Court

Is Involved.

1. The he of the judgment sought to be reviewed

and the time of its entry is April 28, 1964.

2. An extension in which to file Petition for Writ

of Certiorari was entered on May 18, 1964, extending

the time .to file said petition to and including June 27,

1964. eee

3. The statutory provision believed to confer on the

United States Court of Appeals for the Ninth Circuit

to grant a writ of mandate is Title 28 U. S. C. 1251.

4. The statutory provisions believed to confer on |»

this Court jurisdiction to review the judgment 1 ques-

tion by: writ of certiorari is Rule 37, Federal Rules of

Criminal Procedure. |

Questions Presented for Review.

Whether it is a denial of due process of law for

the trial judge to give the jury an instruction on the

‘law of criminal conspiracy at the beginning of the trial

and to continue to reinstruct the jury on criminal con-

2

‘

—j3j— ©

spiracy during the trial on nine different occasions,

drumming this highly prejudicial instruction into the

jury’s mind while the Government was presenting its

evidence, in violation of Rule 30 of the Federal Rules

of Criminal Procedure.

2. Whether the Triai Court erred in excluding cross-

examination of witness Howell, who was an accomplice,

concerning sales of property stolen from Davis-Menth-

an Air Force Base to persons other than the petitioner.

3. Whether the evidence is sufficient. to sustain a

' conyiction as to Count I of the Indictment stated upon

an alleged conspiracy, and upon Counts V, VII and X

of the indictment against the petitioner.

4. Whether theFrial Court erred in failing to grant

defendant's‘ motions to dismiss the Indictment, the mo-

‘tion to strike; the motion for change of venue, the mo-

tion for severance and for.separate trial, the motion for

a new trial, and for denying his motion for judgment

of acquittal.

Constitutional Provisions and Statutes Involved.

The Fourteenth Amendment of the Constitution pro--

vides: : 1 ee

“Section 1. All persons born or naturalized in

the United States and subject to the jurisdiction

thereof, are citizens of the-United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities. of citizens of thé United States;

nor shall any State deprive any person of life, liber-

ty, or property, without-flue process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

- Rule 30, Federal Rules of Criminal Procedure:

“Instructions. At the close of the evidence or at

such earlier time during the trial as the coyrt rea-

sonably directs, any party may file written requests,

that the court instruct the jury on the law as set

forth in the requests. At the same time copies of

such requests shall be furnished to adverse par-

~ ties’ The court shall ‘inform’ counsel of its pro-

posed action upon the requests prior to their ar-

guménts to the jury, but the court shall instruct

the jury after the arguments are completed. No.

party may assign as error any portion of the charge .

or omission therefrom unless he objects thereto

before the jury retires to consider its verdict. stat-

ing distinctly the.matter to which he objects and

the grounds of his objection. Opportunity shall

be. given to — the objection out of the hearing

of. the j jury.” .(Emphasis added.) |

Rule 1. Federal Rules of Criminal Dcbitbine:

“Scape. These rules govern the procedure in the

courts of the United States and .before. United

States commissioners in all criminal proceedings,

with the exceptions ‘stated in Rule 54.”

Rule 2, Federal Rules of Criminal Procedure:

“Purpose aud Construction. These rules are in-

tended to provide for the just determination of

every criminal proceeding. They shall be construed

to secure simplicity in procedure, fairness in ad-

ministration and the elimination of unjustifiable

expense and delay.”

sities

Reasons for Granting Writ and Arguments

Amplifying the Same. ae

This is a petition for‘a Writ of Certiorari: from the

affirmance of a judgment of conviction and a sentence

entered on a jury verdict against defendant Semler un- -

der an. Indictment charging violations of 18 U. S. C.

Section 371 ‘and Section 641. + ot

‘The trial. judge began instructing the jury on the .

law of criminal conspiracy at the beginning of the trial:

and continued to refer to this instruction and to re-—

instruct the jury on criminal conspiracy during the

trial on nine different occasions, drumming this high-

ly prejudicial procedure into the jury’s mind while the

Government was presenting its evidence, in violation of

Rule 30 of the Federal-Rules of Criminal Procedure.

7 | he instructions given by: the trial judge are con-

tained in the Record Transcript on page 133, line 16

through page 137, line 22, and are set forth in the Ap-

pendix under “B”. The nine instances where the trial

-court referred to the instruction or reiterated the in-

struction in abbreviated form are also contained in Ap-

pendix “B”. _ | j

The instructions given at the beginning of the trial

and the reference to the instruction during the presen-

tation of the Government’s case is highly prejudicial

and requires reversal of the judgment and sentence.

' This was plain error affecting the substantial rights °

of the defendant Semler. The Appellate Court. may

take notice on its own motion of the prejudicial error

inherent in t “se charges (Rule 52, F. R. Cr. P.)

Morissette v. U. S:, 342°U. S. 246. Smith v U. S.,

230 F. 2d 935. F o**

' The Federal Rules of Criminal Procedure have the

force and effect of statutes and are more than merely

rules of Court. Hence these Rules will abrogate con-

trary principles of common law.

Ochoa v. U. S. (C. Co A. Cal. 1948), 107 F.

2d 341; :

- United States v. Infusino (C. CL A. Wis. 1942),

131 F. 2d 617; —

Bolger v. U. S. (D.C. N.Y. 1960), 189 F, Supp.

237, -atfirmed 293 F. 2d 368, reversed on

other grounds 371 U. S. 392.

4

The Court of Appeals for the Ninth Circuit, in Bab-

son & Trial v. U. S., case No. 18.410, decided April

&, 1964, discusses the effect’ of instructing the jury

prior to the arguments, contrary, to Rule 30 F. R. Cr. P.,

on page 7 of the slip decision:

“We are unable to understand why the trial judge

chose to ignore Rule 30, and certainly do not sanc-

“tion that irregular procedure. It is essential to the

adminjstration of justice that a juffy scrupulously

follow the:law ag given to it by the judge, and

to that end his instructions should be clear and

firmly gixed in the mind of each juror. And if

supplemental instructions are given, the better prac-

tice undoubtedly is for the judge to expressly ad-

vise the jury, that such instructions constitute only

a part of the entire charge and must be considered

equally with the earlier ones. Here he refused to

do this. Jn both instances the trial judge clearly

erred. but in neither was the error of sufficient

magnitude to warrant a reversal of the judgment. - ’

The most that appears is action premature by a

few hours.” (Emphasis added.)

ay ee . :

-In* the Babson & Trial decision the Ninth Circuit

Court of Appeals found that the error was not suffi-

ciently strong to warrant a reversal of the judgment

because the trial court's instruction to the jury was pre-

mature by a few hours. In our case the premature in-

structions in violation of. Rule 30 began with the second

witness and continued unremittingly and relentlessly for

days during the presentation of the Gov ernment’s Ss case.

presumably creating in the mind Of the jury a devastat-

ing effect and undoubtedly calling for a conviction of

the petitioner on the charge of criminal conspiracy.

The Ninth Circuit Court of Appeals filed an Order

in our case on April 28, 1964, following petitioner's

request for a rehearing and amplified its opinion in

this case by adding the foliowing :

“Appellant construes Rule 30 as pri hibiting the

giving of any instructions to the jury until after

arguments ate completed... The question here is not

whether the district court-may, contrary to Rule 30,

give its instructions to the jury before argument

instead of afterwards. We have recently held such

practice to be error. Babson & Trial «. U. S.,

(9 Cir, 1964) ....F. 2d .....

“The question here is whether Rule 30 precludes

the court from iristructing the jury during trial

in addition to the appropriate. giving ‘of instruc-

tions after argument. Rule 30 cannot be construed

as preventing the court from appropriately caution-

ing the jury as to the limited competence or rele.

vance of evidence as such evidence is received.”

See Appendix “A” page 4.

tlie

The Circuit Court below definitely holds that Rule

30 prohibits ‘the giving of any instructions to the jury

‘until after the arguments are completed, and that it is-~

error for a court to do so. It apparently mistakenly —

~held that the instruction given by the trial judge in-

our case during the presentation of the Government's

case over a period of days was merely “cautionmng the

jury as to the limited competence or relevance of the

evidence as such evidence is received.” Stretching Rule -

30 into such a mistaken construction is most unfortu-

nate for petitioner and for thousa2ids of ‘other defend-

ants in criminal cases, and for that reason we believe it

would be

question and determine,the limits to which trial courts

“r for ihe Supreme Court to examine this

may go in disregarding the Federal Rules of Criminal

Procedure in criminal trials. Were process and a fair

and just trial are involved in this case as well as many

other cases tried before juries in the Federal: Courts.

An example of the remarks made by a trial judge

which led to the conviction of a defendant is the case

of United States v, Allegretti, decided April 22, 1964

in the United States Court of Appeals for the Seventh

Circuit. This court reversed conspiracy convictions of

four defendants on, the ground that the trial judge went

too far in explaining his ruling on the admission of,

evidence and in effect told the jury that he believed the

government had proved the. “danection” necessary to

support the conspiracy.

—9—

With one judge dissenting, the Seventh Circuit ruled

that the trial judge said more than he should have

in this statement. The court conceded that the judge

had a duty to rule on the objections, but. it continued,

“we know of no requirement that the court state to

the jury its reasons therefor. . . . [T]he expression of -

‘the court's reasons did have the effect of suggesting to

the jurors that the court believed that.a conspiracy

existed, and for that reason invaded the province of

the jury.” (Emphasis added. )

One judge concurred specially in order to answer the’

dissenting opinion’s comments about the jury system,

which, he contended, “can be preserved and protected

only by permitting it to operate without interference

by the trial court.”

United States v. cllleyretti (7 Cir. 1964) .... F.

* 2d .... (April 22, 1964).

The Ninth ‘Circuit decisions in our case and in Bab-

son and Trial (supra) is in direct conflict with the

Seventh Circuit decision in United States v. Allegretti

(supra) on the extent to which a trial judge may

go in commenting to the jury on the competence and

relevance of evidence: as such evidence is received by

the jury. 9

In giving instructions. there is necessarily ‘a wide

range of discretion vested in the trial judge, who. must

clearly and-accurately state the rules 6f law by which

the jury is to be guided in its deliberations, while at

the same time avoiding confusion and distraction of -

—

- matters likely to lead the jury awey trom the issues it

is called upon to decide.

> United States v. Grunewald (C. A. X.Y. 1956).

233 F. 2d 556, reversed on jother grounds, .

353 U. S. 391...

But this discretion in a trial judge’does not permit him

to commence instructions at the beginning oy ‘the trial

and to refer to these instructions many times during

presentation of the Government's case in violation of

Rule 30 F. R. Cr. P.

The Supreme Coupe has supervisory power \to. form-

ulate and apply proper standards for enforcement of

criminal law in the Federal Courts.

| Marshal 7. U. S., 360 U. S. 310:

McNabb v. U. S., 318 U.S. 332:

Bruno v. U. S., 308 U.S. 287.

In reversing a conviction for murder in McNabb @:

U. S.. 318 U. S. 332 at 347, the Supreme Court stated :

“We hold only that a decent regard for the

“duty of courts as agencies of justice and custodians

of liberty forbids that men should be convicted upon

evidence-secured- under the circumstances revealed

here. In so doing, we respect the policy which

underlies Congressional! legislation. The history of

liberty has largely been the history of observance

of ‘procedural safeguards, and the effective admin-

istration of criminal justice hardly requires disre-

gard of fair procedures imposed by law.” © (Em-

phasis’ added. ) :

« We believe that the Supreme Court should review this

case because the point raised is new and sufficiently

important and meritorious to warrant a discussion of

:

ad

«s ae

a | 1+

the observance by trial judges of the Federal Rules of

Criminal Procedure as a safeguard to defendants. in

all criminal éases. Chief Justice Vinson, in an address

before the Americanm Bar Association, ‘September 7.

1949 69 S. Ct. v.vi stated:

. “To remain effective, the Supreme Court must

continue to decide only those cases. which present

questions whose resolution will have immediate im-

. portance far beyond the particular facts and par-

ties involved. Those of you whose petitions for

certiorari are granted by the Supreme Court will

know, therefore. that vou are in a sense, prosecut-

ing or defending ‘class actions; that you represent

not only yoyr clients, but tremendously important

principles, upon which are based the plans, hopes,

and aspirations of a great many people through-

out’ the country.”

In preparing this Petition for Certiorari we have at-

tempted to apply the Supreme C ourt’s own standards

and not because our client has induced or compelled

- us to do otherwise. The Court has ultimate power to

review all federal court decisions, and it has over-all

supervisory responsibility for the administration of civil

and criminal justice in. the: federal courts. especially

when plain error has sen c mmitted.

It is submitted that if certiorari is scumned in this

case on the ground that the instructions given to the

jury by the trial judge during the presentation of the

Government's case is in violation of Rule 30 of the Fed-

eral Rules of Criminal Procedure. the Petitioner's brief

on appeal will cover ‘fully the remaining questions here-

tofore presented for review in this Petition for Certiv-

rari. = |

Conclusion.

It is respectfully submitted that this case is unique

and of first impression where an injustice has been

done because a judicial mistake was made. Thousands

of defendants are tried in the United States District

Courts on criminal indictments. Unless a clear-cut de-

cision by the Supreme Court indicates that the Federal

Rules of Criminal Procedure must be followed to in-

sure defendants due process and a fair trial, serious Mis-

carriages of justice will follow.

Wherefore, Petitioner prays that this Hemet Court

grant’ certiorari and review and reverse the Orders

of the Court below.

Respectfully submitted,

Davip M. RicHMAN,

Attorney for Petitioner.

APPENDIX A. ‘

Opinion of the United States Court of hiss

for the Ninth Circuit,

United States Court of Appeals for the Ninth Cir-

cuit.

Norman Nathan Sena. Appellant, vs. The United

States of Americi, Appellee. No. 18,705.

Mar. 16, 1964.

Upon Appeal from the United States District Court

for the District of Arizona. -

,

Before: Barnes, Merrill and Koelsch, Circuit Judges.

Merrill, Circuit Judge:

Appellant stands convicted of conspiracy to steal and

receive Government property in violation of 18 U. S. C.,

Section 371, and,+in three counts. of having received -

Government property knowing it to be stolen, in vic-

lation of 18 U. S. C., Section 641. .

_ Appellant asserts that the evidence was insufficient

to sustain a. conviction as to count 1, the conspiracy

count, or as to counts 5, 7 and 10, the substantive

counts. — .

In support of this assertion appellant relies solely

on his own testimony to the effect that he did not

know that the property purchased had been stolen. Evi-.

dence of knowledge was: presented through testimony

of Sergeant Howell (as to the entire period of the con-

spiracy as well as to the incidents covered by counts 5,

7 and 10), and Sergeant Wooldridge (as to the latter

_ part of ay cofispiracy period and the incidents covered

by counts 5, 7 and 10). It is apparent that the jury

chose to believe these Government witnesses rather than

a

appellant. With knowledge thus established there was

“ample evidence of guilt, mot only of the substantive

counts but of the conspiracy as well.

Appellant asserts error in the court’s permitting Ser-

geant Howell to invoke the privilege of the Fifth

Amendment and refuse to testify on cross-examination

as to sales of stolen property to others than appellant.

Appellants’ position is that the witness had waived the

privilege by testifying freely on direct examination as

to the period of time involved.

We are satisfied that there was no waiver. The

cross-examination in question was on a subject not

gone into on direct.

Appellant asserts that he was denied a fair trial in

that he was denied a severance and was subjected to a

mass trial with those who had participated in the thefts.

The motion for severance was made and argued more

than. a month befoye trial. It was based upon the

ground that there was. no relation between the sub-

stantive counts and the conspiracy counts. It wis. prop-

erly denied upon this ground, The indictment demon-

strated that the overt acts involved jn count 1 were also

involved in the substantive counts. Pera

Appellant’s motion was not thereafter renewed. Tf,

for any reason other than that asserted, severance should

have been granted the right was waived.

Appellant asserts that adverse publicity denied him a

fair and impartial jury. There is nothing in the rec-

ord to support this contention. The court individually

questioned those jurors who admitted having read or

heard of the case, and none of them admitted to an

opinion. There is no evidence or any indication at all

. oe

that any juror read or heard accounts of the trial dur-

ing trial. The jury was adequately cautioned against

reading newspapers or listening to radio or television.

Appellant asserts error and denial of fair trial in the

_court’s instructing the jury on conspiracy during trial.

‘It is not suggested that the instruction itself was er-

roneous. It is argued that it came too soon and too

often, with the result that the fact that the case in-.

volved an alleged conspiracy was prejudicially drummed

into the jury’s consciousness. _ |

However, out of fairness to the defendants the jury

could not be permitted to forget that they were con-.

cerned with an alleged conspiracy, and that the com-

petence of certain evidence as to certain defendants de-

pended upon a determination that a conspiracy existed:

Not only was it entirely proper to instruct the jury |

periodically in this fashion, it might well have been prej-

udicial error not to do so. 7

Finding tio error, judgment is af firmed.

The court has unanimously ‘concluded that the inclu-

sion of the foregoing opinion in the published law re-

ports would serve no public purpose. It therefore di-

rects the clerk that this opinion be not submitted: for”

such publication.

y ——_—— ere

4 w

4 P

sf

/

callie

Order.

In the United States Court of ati for the Ninth

Circuit.

- Norman Nathan Semler, Appellant. vs. The United |

States of America, Appellee. Nob. 18,705.

(Endorsed) Filed Apr. 28, 1964. Frank H. Schmid,

Clerk.

Upon Petition for Rehearing

Before: Barenes, Merrill and Koelsch, Circuit Judges.

It is Ordered as follows:

1. Rehearing is denied.

2. The opinion is ordered modified by the inclusion

_ of the paragraphs hereinafteret forth, said paragraphs

to be included at the conclusion of the opinion prior to

its final sentence:

-~

“Appellant construes Rule 30 2 as prohibiting the

‘giving of any instructions to the jury until after

arguments are completed. The question here is not

whether the district court may, contrary to Rule

30, give its instructions to the jury before argument

_ instead of afterwards. We have recently held such

practice to be error. ~ Babson & Trial v. U. S. (9

_ Cir. 1964) .... F.2d ..... ,

The question here. is whether Rule 30 precludes

the court from instructing the jury during trial in

addition to the appropriate giving of instructions

after argument. Rule 30 cannot be. construed as

preventing the court from appropriately cautioning —

the jury as to theAimited competence or relevance

of evidence.as such evidence is received.”

\

‘4

pes

As so modified, the opinion-to be submitted for in- a

clusion in the published law reports.

Stanley. N. Barnés

‘Charles M. Merrill

M. Oliver Koelsch a

Circuit Judges

awihine

APPENDIX B.

Instructions Given by Trial Judge at the Beginning

of the Trial.

“R Tr. 133, line 16,.*through 137. line 22:

“The Court: Members of the Jury, at this time

] am going to give you an instruction or instruct

you as to.your consideration of an application of

evidence that may be introduced in th case, and

there will be a difference between the evidence that

is offered under the conspiracy count or count 1

and evitience that.may be offered as to the substan-

‘tive counts. that is count 2—there is no count 3--

and counts 4 through 10.

“] ‘will begin by telling you that when several

defendants are on trial ordinarily there is admis-

‘sible against each defendant evidence of only his

own acts and evidence of, an act done by a co-de-

fendant or another person may not be considered

by the jury as against the defendant not doing

the act. In such a case: ordinarily, also, a state-

ment is made outside court by one defendant or

by another person, may not be considered as evi-

dence against a defendant not present when the

statement was made. This. aS I say, is the rule or-

dinarily applicable to evidence introduced in this

case with respect to count 2 or count 4 through

10, the substantive counts. With respect to any

of those counts, evidence of an act done or a state-

ment made outside ‘of court by one defendant or

another person may not be considered by you as

evidence against another defendant not present

when the act was done or the ~ statement

. e

—e -

was made. “When, however, two or more persons

associate tiiemselves together in a conspiraccy, that

is, a combination or agreement to violate the law,

there arises from the very act of associating them-

selves together for such a purpose a kind of part-

nership in which each party to the combination

or agreement is the agent of every other party to_

the plan. «Consequently, in a case where the evi-

dence shows beyond a reasonable doubt a conspfa-

cy or a common plan or arrangement: to violate the

law. entered into between two or more persons,

evidence as to. an act done or a statement made by

one is admissible as against all, provided the act

be done knowingly and the statement be made

knowingly during the continuance of the conspiracy

and in furtherance of an object or a purpose of the

conspiracy. With regard only to count 1 of the

indictment in this case. the count which charges

all of the defendants with conspiracy, I instruct you

that if you find from the evidence beyond a rea-

sonable doubt that the defendants or some of them

entered into a conspiracy as charged in count 1, to

steal, take and carry away> and to receive and con- .

ceal. have and retain. with intent .to convert to

their own use and gain, certain property of the

United States Air Force. the evidence as to any

act done or statement made by ene of the defend-

ants whe. was a party to the conspiracy is admis-

sible against all who were parties to the conspiracy,

provided the act was knowingly done or the state-

ment was knowingly made. during the continuance

of the conspiracy. In order te establish proof that

a conspiracy existed, as charged in count 1, the

,

—

gvidence must show beyond a reasonable doubt

that the parties to the combination or plan or agree-

ment in fsome way or manner, or through some

contrivance positively or tacitly came to a mutual

understanding to try and accomplish their common

object or purpose. In order to establish proof that

a particular defendant was a party to or a member

of a conspiracy, the evidence must show beyond a

reasonable doubt that the conspiracy was formed

and that the defendant knowingly participated in

the conspiracy with the intent to advance or fur-

ther some object or purpose of the conspiracy.

In determining whether or not a particular defend-

ant was a party to or a member to a-conspiracy,

‘the jury is not to consider what others may have

said or done. That is to say, the membership of

a defendant in a plan or arrangement or agreement

must be established by evidence of his own con-

duct, what he himself said or did. Thus. with re-

gard to count 1, if and when. but only if and when,

it appears from the evidenee beyond a reasonable

doubt that a conspiracy did exist and that a de-

fendant was one of the parties thereto, then the |

acts thereafter knowingly made by a defendani like-y

wise found to be a party to: the conspiracy, may

be considered by the jury as evidence in the case

as to the defendant found to have been a ‘party.

even though the acts or statements may bave oc-

curred in the absence of and withuft the kne wledge

of such defendant. provided such acts or state-

ments were knowingly done or made during the

continuance of the conspiracy and in order to fur-

ther an object or.a purpose of the conspiracy.

+

a

collins ;

“With rerard to counts 2 and 4 through 10,

evidence admitted of any act done by one. person

® — will not be considered by you as evidence against

any other person, unless the latter was present and

heard the statement made.

“That is the rule of evidence that is applicable

in the matter. Of course the issue of whether or

net there was a conspiracy cannot be settled with

one sentence, one witness or anything else, but you

will have to bear in mind what must becestablished.

as I have explained it to you, before you will be

permitted to consider the act or statement, or Stat

ment of one defendant or another person outside

of the presence of that other person. You will

have to apply it in accordance with the rules I

have just given.”

i the following instances, during the presentation

of the Government's case. the Trial Judge admonished

the jury concerning the evidence and ruled on objections

referring to the foregoing instruction yziven to the jury

on criminal conspiracy at the beginning of the trial:

is .

In R.Tr., Vol.T, pg. 1J3. lines 14 through 20, the

trial judge ruled on an Objection and stated the fol-

lowing: -

“The Court: A continuing objection. The ob-

jection is overruled and the jury will not consider

this conversation or these statements against any

of the defendants as far as count 2 or counts 4°

through 10 are concerned. And you will consider

it or not with regard to count 1 in aceordance with

i

the instructions which the Court gave you earlier

regarding the acts and statements of a co-conspir-

ator.” fe

II.

In R.Tr., Vol. III, pg. A@* lines 13 through 16.

the Trial Judge ruled on an objection and stated the

following: ee .

“The Court: No, it’s admitted under Count

One.

Q. (By Miss Diamos) Go ahead.

“The Court: The jury will consider it in the

light of the instructions given you heretofore.”

Ill.

In R.Tr. Vol. IL], pg. 912, lines 2 through 7, the

trial judge ruled on an objection: |

“The Court:: The objection is overruled. As

to count 1 it would be admissible, as to the act.

“All of the overt acts in the conspiracy do not

have to be set out- but proof on the other overt

acts may be made. J will instruct the jury though

that this witness’ testimony as to this transaction

will be considered only as to count 1.”

> IV.

In R.Tr., Vol. V, pgs. 1145, line 25 and 1146, lines 1

to 16, the trial judge ruled on the admissibility of an

exhibit as follows: . |

“Tne Court: The exhibit will be received. The

objection is overruled. It will be received as to

all defendants on count 1, the conspiracy count.

It will be considered by the jury under the instruc-

tions given you heretofore in regard to when the

act or declarations of one whom you. find to have

been a conspirator are binding upon and evidence

against another as to whom you find he was a

member of the conspiracy. In other words, give

the exhibit consideration in count 1 as to a defend-

ant, or will not give consideration to it as to a.

defendant in accordance with your findings in the

- instructions heretofore in consideration of evidence

of acts and declarations of conspirators.

, With respect to the defendant Semler, the ex-

hibit is received on counts 5, 7 and 10, but it is

not received as against any other defendant on any

other count. You will not consider it as to any

other defendant or any other ‘count. That will be

on either counts 2, 4, 6. 8 or 9.” .

. V. <

In R.Tr. Vol. V. pgs. 1149 line 14 through 25, and

pg. 1150, line 1 through 3. the trial judge ee a rul-

ing and staied the followi ing :

“The Court: These exhibits will be received.

with the same reservation. ‘In other words. mem-

bers of che jury. you will consider them as against

—consider theny or not as against the defendants

in count 1, in accordance with your findings as

to whether or not there was a conspiracy. and

whether the exhibits show an act. or admissior or

declaration by a conspirator during the course or

the conspiracy dnd in iurtherance of it. and wheth-

er a defendant as to whom you may consider it

was a member of the conspiracy at that time: The

instructions given you heretofore with regard to

the evidence in the conspiracy count. As to the

ae ae

remainder of the counts, the exhibits. are received

against the defendant Semler on counts 5, 7, and

10, but are not evidence of any kind against the

other defendants on any other count than count

- J, ee

VI.

In R.Tr., Vol. V. pg. 1150. line 5 through 25. the

trial judge interrupted a question and made the fol-

lowing statement and reiterated an instruction concern--

ing conspiracy:

“The Court: Mr. Muecke, maybe matters have

gone along so long that maybe | should again reit-

erate for the jury the essence of the instruction

1 gave them: with reference to count 1 so we may

- refresh their recollection. .

“This is the substance of what I told you be-

fore, | told you at. length, but this is the essence

of it. That was with regard only to count 1 of

the indictment in this case, the count that charges

all of the defendants with conspiracy. I instruct

you that if you find from the evidence beyond a

reasonable doubt that the defendants or some of

them entered into a conspiracy, as charged in count

1° to steal, take and carry away. the personal proper-

ty of the Unijed States Air Force, and to receive,

conceal, have and retain with intent to convert to

‘their own use and gain. certain property of the

United States Air Force, then the evidence as to

.any acts done or statements made by one of the

defendants who was a party to the conspiracy is

admissible against all who were party to the con-

spiracy. providing the act was knowingly done .or

an

statement knowingly made during the continuance

of the conspiracy and in furtherance of the object

and purpose of the conspiracy.”

| ae .

In R.Tr. Vol. V. pg. 1159, line 13 through 25, the |

trial judge again reiterated the instruction to the’ jury

on conspiracy :

“The Court: These may be received as to all

defendants, as to count 1, subject to the jury’s-

considering or not considering as against the in-

dividual defendants in accordance with the instruc-

tions heretofore given to the jury. In other words,

members of the jury. if ‘you find from the evi-

dence beyond a reasonabie doubt that a conspiracy

did exist at the time charged in count 1 of the in-

dictment, and if you find that this exhibit is evi-

“dence of an act or an admission or declaration of

one of the conspirators, made during the existence —

of the conspiracy and in the furtherance of a pur-

pose or object of the conspiracy, then you may con-

sider the exhibit on count 1 as to any other defend-

ant whom’ you find beyond a reasonable doubt

to have been a member of the conspiracy at that

time.” )

VIII. Pa

In R.Tr. Vol. Vo pg. 11600. line 2 through 6, the

trial judge further stated the following e

“The exhibit wil! further be considered by the

jury and admitted as against the defendant Sem-

ler on counts 5, 7. and.10, but not admitted against

any other defendant and will not be considered as

to any other defendant on any‘ count other than

connt 1.”

ania

— oa

In R.Tr. Vol. V1, pg. 1606, line 20 through 25, and

at pg. 1607, line 1 through 7, the trial judge stated

the following: .

“The Court: The Exhibits 39 through 46 which

have just been admitted in evidence will be con-

sidered by the jury as-to all defendants on count

1. You will treat it as evidence against the de-

fendants in count 1 in accordance with your deter-

mination under the rules heretofore given you, with

regard: to whether or not, first. there was a con-

spiracy, and, next, that a defendant was a member

of the conspiracy, and, finally. tl. the exhibit

constitutes evidence of an act or a declaration as’

to the members of ‘the conspiracy and during the

existence of the conspiracy. The exhibits will also

be considered as against the defendant Kirves on

count 9 and the defendant Semler. on count 10, and

they will not be considered as to any other defend-

ant on any other count.”