# Brief for the United States — Babcock v. Community Redevelopment Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0062%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1964 - **Citation:** 379 U.S. 899 ## Text INDEX Opinion below--------+----------- 2777-7 Jurisdiction eee cenaneccneaeneenanome wi Questions presented--------- _ navmenmcnnnetenmensaee Statement -----------------—---=------ 9-7 - Argument -.--------------- approached three printers and asked them if they could print “certificates’’ or “bonds’’, having specified ‘certain characteristics which corresponded to those of the genuine Turnpike issue (R.,'164, 174-175, 183, 513-514, 525-526). He told one printer ‘‘It’s a little shady’’ (R. 165). ~ Petitioner Marroso was from Detroit and had authority over or access to funds of the’ Teamsters’ Union (R. 230, 263, 399). He and Samarin had been seén together in June, 1960 at Samarin’s residence (R. 397--398, 401-402). During the last week of 1960, Hyman Green, an acquitted co-defendant in this case, "gave his friend Martin Von Zamft, president of. the ' Bank of Miami Beach, a list of 265. or 266 Qhio Turnpike. bonds and requested that he ascertain whether those bond numbers were free of claims (R. 219-224). Green, who was the director of a bank in | - Nassau, Bahamas, told Von Zamft that the owner of NOE ON NT orm + - the bonds. wanted them sold through Green’s Nassau bank (R. 225, 247). Later the same week, Green and petitioner Marroso left 266 Ohio Turnpike. bonds with Von Zamft for safekeeping (R.~ 233-236, 243, _ 245). On January 3; 1961, an employee of the Bank of Miami Beach made telephone inquiries with regard to the bond numbers. specified by Green, and learned that five of them had previously been cancelled (R. 60-66, 223-224, 333, 337, 345). On.the same day, January 3, a telephone call was made from petitioner Marroso’s Miami hotel room to a party named “Samarin”’ in Cleveland (R. 391). The telephone number called from Miami was that of a house in a Cleveland suburb, and it was established that Samarin was residing there at the time of the call ial 395- 396). On January 9, Von Zamft returned the 266 ‘Turn- pike bonds to petitioner Marroso in Miami; the same -day Marroso, arriving in Nassau, handed a package to Green (R. 276, 288, 290, 298-299). The Nassau. bank of which Green was a director handled, several ““X”? or confidential accounts, one of which was utilized in the negotiation of some of the counterfeit bonds at. issue here (R. 249-250, 294-296, 313-315). | Within three @ avs of Marroso’s trip to Nassau, he ~ and Green took 265 Turnpike bonds to a broker’s office, where a sale was negotiated (R. 299-303, 321). _ The bonds were shipped to New York purchasers, who discovered that they were counterfeit (R. 125, 149, 191-192, 312). The bonds sold in Nassau did not inelude the five numbers which, upon the inquiry previously instig rated by Green, were found to have 9) been cancelied (R. 312, 355). All the counterfeits had been made from the genuine bond which Samarin _.. possessed in October (R. 514-521, 524, 532). After newspapers had publicized the negotiation of -eertain counterfeit Ohio Turnpike bonds, petitioner. ° _ Samarin approached the broker to whom he had orig- inally mentioned the counterfeiting. proposal and. to Id him that the ‘“‘deal’’ had not gone through (R. 77). Petitioner Marroso, questioned by an F.B.I: agent, denied ever. having had possession of any Ohio Turn- pike bonds, genuine. or otherwise, and stated further that he*knew of no one who had such bonds. He de- _ nied having attended any meetings with Green in. Nassau and declared that he could not recall whether he had seen Green in Nassau or in Miami (R. 4457446). 4, ’ ARGUMENT 1. Contrary to petitioner Samarin’s contention, there was substantial evidence to support the jury’s finding that the forged bonds were tr ansported to Nassau and that he, Samarin, was implicated in that > transportation. As we have shown, the record- estab- lished that about two weeks prior to the sale of the counterfeit bonds in Nassau, Green asked a’ Miami . banker to check out a list of 265 or 266 Ohio Turn- pike bearer bonds in the “132,000”’ series (R. 342); . that, shortly afterward, Green and Marroso deposited 266 Ohio Turnpike bearer bonds with a Miami banker - for temporary safekeeping; that on January 9, 1961, . the very day these bonds were returned to Marroso, - he flew to Nassau and there handed a package over to Green; that within'two days Green and Marroso OO A A ORO CIN wk ang rose * . 6 had begun negotiations for the sale of 265 Ohio Turn- pike bonds; -and that on J anuary 13, 1961, four days after Marroso’s receipt of the 266 bonds in Miami and his flight to Nassau, the counterfeit bonds here at issue, all belonging to the “132,000” series, were sold to New York purchasers. In these circumstances, . the jury could readily find that the forged bonds sold by Green and Marroso had been. transported by Mar- — roso from Miami to Nassau. _ Samarin’s participation is.also inferable from the record. ,It was shown that Samarin had sought to obtain an Ohio Turnpike bond for the declared pur- pose of counterfeiting it; that he did manage to se- cure such a bond and approached three printers with | a view to duplicating its characteristics; that the counterfeit bonds sold by Marrosa and Green in Nassau were forged copies of the model bond procured by ' Samarin; that Samarin and Marroso had been seen together and had engaged in business discussions on &t least two oceasicns during the months preceding the sale of the-bonds; and that. Marroso in Miami had placed a.telepHone call to Samarin in Cleveland only a~few days before the transportation of the. bonds te Nassau.. In addition, the proposed counter- feiting scheme, as described by Saniarin to a. Cleve- land stockbroker, involved a South American banker" and a Detroit union, and the evidence showed that Marroso, who lived in Detroit, -was connected with the- Teamsters Union and collaborated in the sale with Green, a Nassau banker. From these facts the jury . could reasonably conclude that Samarin was an ac- cessory to the illegal transportation. 2 7 2. The F.B.I. agent who interviewed Marroso took . the witness stand and gave a detailed description of the ‘interview from beginning .to end. He. testified, inter alia, that Marroso denied having possessed Ohio ° - ‘Turnpike bonds and did not recall having seen Green either in Nassau or Miami; that when ‘questioned as to . . why he had-been in Florida at the time here relevant, Marroso asked to be excused to consult his attorney, who had accompanied him to the F.B.I. office; and that, after consulting him, Marroso “came back and — said that his attorney had instructed him not to an- swer any more questions, and that terminated the in- terview”’ (R. 444-446). In his opening remarks, the ' prosecutor, previewing the testimony which the gov- ernment would offer, summarized the F.B.I. agent’s _ description of the interview, including the manner in which it terminated, (R. 26). Defense counsel moved unsuccessfully for a mistrial on. three occasions, claim- © ing that the prosecutor ’s opening comments and the agent’s testimony were unduly prejudicial to peti- tioners (R. 26, 413-415, 448). In this Court, peti- tioners contend that the comments and testimony abridged their privilege against self-in¢rimination under the Fifth Amendment, impaired their right to counsel under the Sixth Amendment, -and violated their statutory right not to testify under 18 U.S.C. 3481.1. These contentions, we submit, are ground- . less. ? Neither at trial nor before the court of appeals was there ‘any contention by petitioner Samarin as to the propriety of the evidence in question. He now asserts for the first time (Pet. No. 471, pp. 13-17) that the evidence relating to the 8. We note first that, under familiar rules of evidence, - ‘the testimony in question was relevant, and was ad- missible for the purpose of giving the jury a complete and intelligible picture of the interview. Without that evidence, the jury would have been at a loss to understand the. abrupt cessation of the questioning or might have drawn the erroneous inference that the Interview had embraced other significant questions and answers about which the agent had not testified. As th® court of appeals stated, “this was no more than evidence of stitrounding: circumstances tending to illuminate the principal fact in such a way as to reflect the entire transaction or conversation and_plac- ing the whole in a trué light’? (331 F. 2d at 602). Thus, whether the evidence be viewed from the stand- point of “testimonial completeness”' (see Bryson v. United States, 238 F. 2d 657, 661 (C.A. 9), certiorari denied, 355 U.S: 817), or “res gestae’”’ (see Rogers v. United States, 334 F. 24-83, 86 (C.A. 5)), it was ap- propriate to “permit the witness to tell his story in a natura} way by telling all"that happened at.the time of the narrated incident including those details which give light and color to the story. * * * ’’ McCormick, Handbook of the Law of Evidence (1954) 587. termination of the Marroso interview was prejudicial to his cause. We think it.plain that if there was some infringe- - ment of Marroso’s rights—which we do not concedé—that was a persona] matter. relating only to Marroso. Particularly is this so where, as here, the judge carefully instructed’ the jury on numerous occasions that post-conspiracy statements were to be considered only against the respective declarants (R. 437, 447, 460, 618-619, 628). Z 9. The prosecutor's remarks and the agent’s testi- mony in no way infringed’ petitioners’ privilege against self-incrimination. -In terminating the inter- view, Marroso did not invoke any const!+utional privilege; nor was there any occasion for “him to do so. He was not under arrest or under indictment at the time, and there is no indication that the agent was exerting pressure upon fim to extract a confes- sion. On the contrary; Marroso came voluntarily to the F.B.I. office, was accompanied by his attorney, and freely responded to a dozen questions before de- ciding to break off the dialogue. He was at liberty to discontinue the interview and to walk out of the “office at any time and for any reason he chose, with- out resort to the Fifth Amendment and without regard to whether his answers might We self-inerimi- nating. The prosecutor in no way suggested that Marroso had relied upon the Fifth Amendment, much less that there was anything inculpatory in his refusal to participate further in the interview. What was damaging about the agent’s testimony was not the description of the way the interview ended, but rather the answers which Marroso gave to the first ten or twelve questions—particularly his assertions, in the face of strong contrary evidence, that he had not pgssessed Ohio Turnpike bonds and did not remember - seeing Green either in Miami or Nassau. In these circumstances, we submit, there was no impairment of the Fifth Amendment privilege. The same con- siderations dispose of the contention under 18 U.S.C. 3481, which provides merely that a defendant’s failure 10 _ to take the witness stand “‘shall not create any pre- ~ sumption against him.”’ Nor is there any basis for the aibiitee that the decision below is at odds with the decisions of this Court of Eschbedo v. Illinois, 378 U.S. 478, or Masstah v. Umited States, 377 U.S. 201, both of which dealt with the right to counsel under the Sixth . Amendment. In Massiah, the Court held that incrim- inating statements elicited from the defendant by federal agents subsequent to his indictment and in the absence of his retained. counsel could not, con- sistently with the Sixth Amendment, be introduced in evidence against him. In Escobedo, the Court ap- plied the same rule to statements obtained through the interrogation of a defendant who had not yet been formally indicted, but who was in police custody and had been denied access ta counsel. In the present case, Marroso was accompanied by his attorney and was. free to consult with him at all times. Moreover, as we have noted, he was neither under arrest nor “under indictment at the time ‘of the questioning, and the record does not show that he had ‘‘become the aecused,” that “the purpose of the interrogation was to ‘get him’ te confess his guilt,’”’ or that ‘‘the poliee urged him to make a statement’”’ (378 U.S. at 485):» 11 CONCLUSION It is therefore respectfully submitted that the peti- tions for writs of certiorari should be denied. ARCHIBALD Cox, , Solicitor General. Hersert J. Muzer, Ir., Assistant Attorney General. BEATRICE ROSENBERG, JEROME NELSON, Attorneys. Ocroser 1964. 0.9. GOVERNMENT PRINTING orrice 9664 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0062%3A4. Public record. Not legal advice.