Petition for Writ of Certiorari — District of Columbia ex rel. Capital Lighting & Supply Inc. v. Merando Inc.

Wnrasam Grosz and Mazio Garcia Kontyx, Petitioners

we * v. .

Unrrep Srarss or Amuntoa, Respondent

KE. Bansetr Parrryman, Jr.

sit Cranes W. Hatimox

’ 815 Connecticut Avenne, N.W.

Washington 6, D.C.

Attorneys for Petitioners

Pume or Byron 5. Apems, WASHINGTON, D.C.

>,

INDEX

Page

Petirion ror Writ or CERTIORARI TO THE Untrep States

Court or APPEALS FoR THE Seconp Crecuit ...... 1

IE NE eiccanekccoaneaéecdens etiwawee Gave s 1

I, ao Shiai das Sid ch aces 5 ad aw ee ome 2

Constitutional Amendments and Statutes Involved .. 2

NN: SIN oc ccucewanedes aediveeeneeedus 2

I oe ebowibedadesaeeene 3

Reasons for Granting the Writ ................... 10

ID Sa eeti ns Oa es see ca cua. vias a wie 29

TABLE OF AUTHORITIES

CasEs:

Banco Nacional de Cuba v. Salebatino, 376 U.S. 398

Eerie tienen wore ee rere 18, 19

Bouie v. City of Columbia, 378 U.S. 347 (1964) ...... 15

Cobb v. United States, 191 F.2d 604 (9th Cir. 1951),

cert. denied, 342 U. 4 2. er

Ford v. Surget, 97 en Se NE Wa aaa seas ws on ae 19

Graham v. Lawrimore, 185 F. Supp. 761 (E.D.S.C.

1960), aff'd, 287 F. 2d T (4th Cir. 1961) ........ 12

Hotch v. United States, 212 F.2d 280 (9th Cir. 1954) . 12

Johnson v. United States, 115 U.S. App. D.C. 63, 317

F.2d 127 (1963) ..... 2.0... sseecscssecececeeree 24

Lambert v. California, 355 U.S. 255 (1957) .......... 15

Lopez v. Umited States, 373 U.S. 427 leer 23

MacLeod v. United States, 229 U.S. 416 (1913) ..... vin ae

Mallory v. United States, 354 U.S. 449 (1957) ........ 24, 29

Naples v. United States, 113 U.S. App. D.C. 281, 307

Fe I 6 eco tb csc ked waweaceek cane ccsae 24

Oakes v. United States, 174 U.S. 778 (1899) .......... 19

Offutt v. United States, 348 U.S. 11 (1954) .......... 24

Spriggs v. United States, — U.S. App. D.C. —, 335

(fs 4%. Seca er mpm ae 24

Thorington v. Smith, 75 U.S. 1 (1869) ............... 19

ii Index Continued

_ Page

Tyson v. United States, 285 F.2d 19 (10th Cir. 1960) .. 21

Underhill v. Hernandez, 168 U.S. 250 (1897) .......... 19

United States v. Arjona, 120 U.S. 479 (1887) ........ 21

United States v. Garquilo, 324 F.2d 795 (2d Cir. 1963).. 29

United States v. Gertz, 144 F. p. 740 (D. Hawaii

1956), aff’d, 249 F.2d 662 (9th Cir. 1957) ........ 20, 21

United States v. oe 347 U.S. 612 (1954) ........ 15

United Siates v. L. Cohen Grocery Co., 255 U.S. 81

I 15

United States v. Morelock, 124 F. Supp. 932 (D. Md.

Oi ce Raa a ae 13

United States v. White, 27 Fed. 200 (E.D. Mo. 1886) .. 21

United States v. Wight, 176 F.2d 376 (2d Cir. 1949),

cert. denied, 338 U.S. 950 (1950) ................ 29

Worthy v. United States, 328 F.2d 386 (5th Cir. 1964).. 19

CoNnsTITUTIONAL PROVISIONS,

SraTutTes anp Ruues:

Art. I, Sect. 8, Clause 10 of the Constitution .......... 21

Fifth Amendment to the Constitution .......... 3, 15, 20, 29

Sixth Amendment to the Constitution ............... 3, 29

§ 4, Title VIII of the Act of June 15, 1917 (ch. 30, 40

I a a a

§ 17b, 65 Stat. 717, 18 U.S.C.A. § 2 (1964 Cum. Supp. oon

NNT ee cg eae ok 2, 3, 6, 8,

11, 19, 20, 21

a oie cs encbukeaneeee 2, 3, 10, 21

et dak cin sb diebea ken’ desea 12, 13, 14

i a en hp ne Sea 12, 13

is il a uk ee. hinw oneak wena 12, 13

a as wale neuen 2, 3, 10, 21

ne ence pemndess ghenmamneh 2, 3, 10, 21

EE 65.4 iin see cauiecea’<eenaanGean 2, 2,10, 21

inn. «a nin nla oe w'6bb debe Z, 3, 10, 13,

14, 18,019, 20, 21

eg ne a a EO Pe eeRS. 12, 13

EE ew ss cecginmeeeseladameuneanel 12, 13

By ED vninccnascede se Si tatevaeanewseae 12, 13

as cnn eabeaaineancbecece iad 12, 13, 14

an cs wd ihnn beat eusvonuneloue 12, 13

Index Continued iii

Page

Bp ee EE 042.0 cs dbewevsbacanceesonensss . 12, 13,14

i ee cls come ae heneen 17

22 U.S.C. § 1643 (1964 Cum. Supp.) ................. 17

Se ED -ovicGgneeishesdstonsdunocan i

Se EE ow ou ba wn ne Gh dN RREH OR CAC édnEO SOE 17

ee ue etal di eben tees edennes 2

Federal Rule of Criminal Procedure 5(a) ............ 3, 24

Federal Rule of Criminal Procedure 52(b) .......... 24, 29

MISCELLANEOUS:

Proclamation . 3447, Feb. 6, 1962, 27 F.R. 1085 .... 17

Proclamation No. 3504, Oct. 24, 1962,17 F.R. 10401 .... 17

Executive Order No. 11071, § 2, Dec. 28, 1962, 27 F.R.

RRA eed, Oe ee erry ee 17

Reorganization Plan No. 26 of 1950 .................. 12

— A7197-A7200 (87th Cong., 2d Sess. Oct. 1,

SE 246000002 6kbebeee sn etsn ehneeekekeins es

Treasury Dept. Order No. 173 (Revision No. 1) (March

By SN 6b 0:5 450d wdkye ous 50ss osenesdvesené ues

IN THE

Supreme Court of the Anited States

OcroBEr TERM, 1964

No.

WiuuiaM Gros and Mario Garcia Kony, Petitioners

v.

Unirep States or America, Respondent

PETITIGN FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners William Grosh and Mario Garcia Kohly pray

that a writ of certiorari issue to review the decision and

judgment of the United States Court of Appeals for the

Second Circuit entered in its Case No. 324, September 1964

Term (Docket No. 29342).

OPINION BELOW

The opinion of the Second Cireuit Court of Appeals is

not yet officially reported but is printed as Appendix B

hereto. The District Court rendered no opinion.

2

The opinion of the Second Circuit Court of Appeals was

rendered on February 26, 1965. On March 26, Mr. Justice

Harlan granted an extension of time until April 12 in which

to file this petition. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AMENDMENTS AND

STATUTES INVOLVED

This case involves the Due Process Clause of the Fifth

Amendment to the United States Constitution; the Assist-

ance-of-Counsel Provision of the Sixth Amendment to the

Constitution ; § 17b, 65 Stat. 717, 18 U.S.C.A. § 2 (1964 Cum.

Supp.), and 18 U.S.C. §§ 11, 371, 478-481. All are set out in

Appendix A hereto.

QUESTIONS PRESENTED

Petitioners were convicted of conspiracy and the pos-

session, without ‘‘lawful authority,’’ of plates from which

the counterfeit notes of a ‘‘foreign government”’ could be

printed. Petitioner Kohly, for whom petitioner Grosh

worked, was the head of a Cuban de facto government-in-

exile in this country and had arranged for the making of

50-peso plates with a view to undermining Castro’s economy

and purchasing arms for the anti-Castro underground. He

had revealed his plan to United States Government officials

and had proceeded with his plan on the assumption that

he had lawful authority and that he was the head of a

foreign government within the meaning of 18 U.S.C. § 11.

The questions presented are:

1. Whether the District Court errone-usly charged the

jury that ‘‘lawful authority’’ could come only from Castro,

when (a) the statute does not define “‘lawful authority’’,

and (b) the prosecution’s own evidence showed that United

States officials do in fact grant such authority.

3

2. Whether the District Court erroneously charged the

jury that since the United States had recognized the

Castro regime, ‘‘foreign government’? meant only the

Castro government, whereas 18 U.S.C. §11 specifically

defines ‘‘foreign government’’ to include a “‘body of in-

surgents * * °, irrespective of recognition by the United

States.’’

3. Whether the relevant criminal sections are not un-

constitutionally vague under the Fifth Amendment.

4. Whether evidence relating ‘o the recognition of peti-

tioner Kohly’s government by this and other countries and

to the approval of his plan by United States officiale was

rot erroneously excluded, an? the jury erroneously in-

structed, since this evidence would have vitiated any

possibility of criminal intent.

5. Whetker the trial court erroneously took the issue of

entrapment from the jury.

6. Whether the District Court committed reversible error

in allowing the admission into evidence against both peti-

tioners of statements obtained from petitioner Kohly first

by Secret Service agents and then by the United States

Atterney’s Office but before he was taken before a com-

mitting magistrate, in violation of Federal Rule of Crizaina}

Procedure 5(a).

7. Whether petitioners were not denied the effective

assistance of ‘counsel, in violation of the Fifth and Sixth

Amendments, both at their trial and on eppeal.

STATEMENT

Petitioners were indicted on two counts: conspiracy

(under 18 U.S.C. § 371) to violate 18 U.S.C. §§ 478-481,

and unlawfu! possession (under 18 U.S.C. §§ 481 and 2) of

plates from which the counterfeit notes of a foreign govern-

ment couid be printed. Petitioners were convicted and

4

sentenced to one year on each count, the terms to run

concurrently (Tr. 887). The Second Cireuit Court of

Appeals affirmed on February 26, 1965 (Appendix B).

The genesis of this case goes back to 1959, just before

Fidel Castro came to power in Cuba. Petitioner Kohly

at that time was engaged in finance in Cuba. He came

from a distinguished family, his father having served as

Minister of Education in Cuba and later as Cuban Ambas-

sador to Spain. Kohly himself had once run as a candidaie

for the Cuban Congress. In 1959 Kohly opposed Castro’s

rise to power and organized a body of rebels within Cuba

to combat Castro’s take-over (Tr. 314, 348, 392-393, 539-

340. 542-543, 581-582). As a result of his activities, Kohly

was arrested as a counter-revolutionary the same day

Castro arrived in Havana, spent the night in jail, and fled

the next day to the United States, where he has remained

in political asylum ever since (Tr. 347, 398, 470, 540).

In this country, Kohly immediately set about organizing

Cuban exiles and devising plans for the disruption of

Castro’s economy and the purchase of arms within Cuba

to combat the Castro regime (Tr. 349-350. 542, 543-545).

In June of 1960, for example, Kohly discussed his plans

with a former Senator and a former Comptroller of the

Treasury, and through them obtained an interview with

then-Vice President Nixon (Tr. 353, 398-399). The Vice

President in turn put Kohly in touch with an agent of the

Central Intelligence Agency (CIA), who thereafter con-

ferred with Kohly on numerous occasions over a three-

month period (Tr. 354-255, 399-401).

Part of Kohly’s plan at that time was to send 10-peso

notes into Cuba for the purpose of purchasing arms for

the Cuban underground (Tr. 169-173, 379). It was with

this in mind that Kohly, in 1960 or 1961, met a man named

Morrow, who described himself as an electrical engineer

and who on occasion did secret work for both the CIA and

the Navy Department (Tr. 134-135, 191-192, 195, 199-201,

4)

— i,

212-214, 446, 459-460, 599). Morrow at first supplied Kohly

with radio and telephone equipment for the Cuban under-

ground and then agreed to make the plates for the 10-peso

notes (Tr. 196-198, 395, 420).

Kohly fully revealed his plan to the Government—and

evidence to this effect is not in any way rebutted in the

record. He sent his plan, his budget and a sample 10-peso

note to the Chairman of the Joint Chiefs of Staff by way

of an Army colonel, and on August 16, 1961, was given a

receipt in return (Tr. 361-365, 367-368, 382-385; see also

Tr. 675-676). Kohly was prevented by the prosecution’s

objection from testifying whether the Government in any

way objected to his plan (Tr. 386-387). However, Castro

himself obviated the 10-peso venture by changing the Cuban

currency (Tr. 32, 122, 173-176, 249-251, 379, 419).

In the meantime, Kohly was actively seeking and receiv-

ing support and recognition for his government-in-exile.

His efforts culminated in June 1962, when the Cuban under-

ground officially proclaimed him President of Manbises

Libertadores, or, as it is known here, the United Organ-

izations for the Liberation of Cuba (or simply as the

Republic of Cuba-in-Arms) (Tr. 318-319, 350, 407-408a,

413-414, 471-473, 539-540, 573, 581-583).1_ This organization

was made up of 95 of the 235 Cuban factions then active in

the United States (Tr. 121, 350-353, 572, 579).

As President of the United Organizations, Kohly revised

his 10-peso plan, as to which the United States Government

had been fully informed, and now set out to have printed

50-peso notes which could be sent to Cuba for the purchase

of arms, ships and other materials to be used against Castro

(Tr. 378, 394-395, 462-467). These pesos were to be dis-

1The proclamation appears in the Congressional Record for

October 1, 1962 (87th Cong., 2d Sess. A7197-A7200) but was ex-

cluded from evidence by the District Court, along with all questions

relating to it (Tr. 404-406; see n. 12, infra).

6

tributed in Cuba through the ieaders of 10 of the 96 groups

in the United Organizations (Tr. 421-422).

Kohly first consulted an attorney named Scholz, showed

him one of the 10-peso notes, and asked if Scholz knew

where Kohly could obtain a printer and funds for the

venture (T'r. 93-94, 424-429). In addition, Kohly asked both

Scholz and a Washington attorney for further assurance

that the venture was legal (Tr. 396-397, 429, 484-485, 492).

Kohly was advised that since he was the duly-constituted

head of a ‘‘foreign government’’ as that term is defined

in 18 U.S.C. §11,? he was entitled to print the pesos

(Tr. 377, 396-397, 414, 416, 429).

On July 24, 1963, in Arlington, Virginia, Kohly was

introduced by the attorney, Scholz, to one Martin, who

allegedly was a printer and who was represented as having

done a great deal of work for the United States and for

foreign governments (Tr. 24, 27, 434, 453). In point of

fact, Martin was a Secret Service agent specially assigned

to the Washington area from the New York Office of the

Secret Service for the specific purpose of investigating

this case (Tr. 23, 67-68, 437, 491, 516).

Kohly solicited Mertin’s help, explained that he was in

the process of having 50-peso plates made, and showed

Martin one of the 10-peso notes which had been printed

earlier (Tr. 24-39). Kohly said he planned to use the

50-peso notes to purchase ‘‘boats and weapons and things

of that nature to support the underground movement in

Cuba”’ (Tr. 35; see also Tr. 95-96, 105, 445). Kohly also

told Martin that he had discussed his plan with the CIA

and the Federal Bureau of Investigation, that they ‘‘knew

what he was doing,’’ and that they were ‘‘more or less

* Either Mr. Kohly or the reporter inadvertently cited § ‘‘18”’

at one point and §‘‘19’’ at another, rather than §11. These

obviously were errors, since there are no such sections as 18 and 19

under Title 18. The defense attorney correctly cited §11 (Tr.

782).

7

closing their eyes to it’’ (Tr. 30; see also Tr. 106). Martin

azreed to help if he could talk to the plate-maker (Tr. 33-

34). Asa result, during July, August and September, 1963,

a series of meetings took place in New York City, inter-

spersed with telephone calls, in regard to the progress of

the venture, the development of the new plates by Morrow,

the paper to be used for printing (which was to be obtained

through norma! channels), the necessary financing, and

other matters (Tr. 39-52, 144, 495-496, 502, 516).

In the meantime, according to Kohly, Morrow had said

that his wife would cot allow him to proceed with making

the plates unless he first obtained Government clearance.

Kohly urged him to comply. After a brief period, Morrow

was able to assure Kohly that he had talked to a number

of government officials, including CIA representatives,

and that the plan had received everyone’s sanction (Tr.

387-391, 435-437, 451-452, 553-557). Morrow completed the

plates on September 26, 1963, and they were picked up the

same night by Kohly’s son and petitioner Grosh for

delievery to Kohly. Grosh had met Kohly several years

before, and Kohly paid him to act as chauffeur and handy-

man (Tr. 420-421, 434-435, 507-509, 524-531, 592-624).

Even under the most liberal reading of the prosecution’s

evidence, Grosh played a negligible role in the entire pro-

ceedings (see, e.g., the prosecution’s summation at Tr. 795-

801).

No 50-peso notes were ever printed. Instead, five days

later, on October 1, Kohly took the plates to New York

City and showed them to Martin in the lobby of the

Waldorf Astoria Hotel, whereupon Secret Service agents

working with Martin closed in and arrested Kohly (Tr. 52-

56, 115-116, 450-451). When Grosh heard he was being

sought, he turned himself in voluntarily to agents in

Washington (Tr. 164, 630-633, 668-659).

Kohly testified before the Grand Jury at his own request

and told his whole story (Tr. 369 et seg.). From then

8

until now he has insisted that he received legal advice to

the effect that he was entitled to make the 50-peso notes

as the head of a government-in-exile within the meaning

of 18 U.S.C. $11, and that he proceeded from the outset

with the knowledge and implied assent, or sub silentio

approval, of the United States Government (Tr. 377, 385-

387, 396-397, 414-416, 454-455). Both he and Grosh have

consistently maintained that they have never had any

intent, specific or otherwise, to commit a crime.

The District Court, however, refused to allow petitioners

to submit their theory of the case to the jury. Instead,

the court took the position during the trial and instructed

the jury, in substance, that (1) the recognition of a foreign

government is an Executive act binding on the courts, and

since the United States had never withdrawn formal

recognition of Castro’s government, that government is the

only ‘‘foreign government’’ contemplated by the statute;

and (2) the ‘‘lawful authority’’ referred to in the statute

must come from the recognized foreign government—in

this instance, the Castro government.’

® The following exchanges occurred during the trial :

‘‘Mr. Kaurman [defense attorney]: I want to also show that

my man is the head of government. My man is the head of the

Cuban government here in the United States.

‘*T'HE Court: How do you propose to do that?

‘‘Mr. Kaurman: Through him and through these people that I

brought here.

‘‘TuE Court: I would sustain the objection. Recognition of

the government is an act of our government”’ (Tr. 359-360).

“*Mr. Fanning [Assistant Uniied States Attorney]: * * * I do

submit now that in any event the approval, the appropriate ap-

proval, if it is to he proven here, has to come from the proper

authority ; that would be either the Secretary of the Treasury or

the Chief of the Secret Service, and in addition he would have to

show that he had authorization from the present ruling government

of Castro. So authorization from any other source would be com-

pletely irrelevant and immaterial.

‘‘THE Court: I don’t happen to agree with you that approval

must come from this government, but you injected it into the case.

9

Under these instructions, the jury had no choice but to

find petitioners guilty, since Castro obviously had never

given his assent to Kohly’s plan. It is indicative of the

attitude of the jury, however, that the foreman declined

to read the verdict (Tr. 854), and the jury, though

instructed that ‘‘The recommendation of leniency is not the

function of the jury’’ (Tr. 853), nevertheless insisted on

bringing in just such a recommendation (Tr. 854).

I think the only approval required under the statute is the approval

of the government of the Republic of Cuba, but you are the one

that has indicated that approval from our own government is

required’’ (Tr. 366).

At the conclusion of the case, the court charged the jury that:

‘Counterfeiting money means printing currency to imitate or

to simulate that issued by a sovereign government without its

authorized consent.

‘‘The Republic of Cuba, headed by Fidel Castro, is a government

recognized by our government. Recognition of a foreign govern-

ment is a matter of political judgment determined by our Execu-

tive Department and is binding upon all citizens and non-citizens

alike and, of course, courts and jurors as well.

‘‘Recognition of the Castro government signifies our country’s

willingness to acknowledge that it speaks as the sovereign authority

for the territory it purports to control. The fact that we do not

maintain diplomatic relations with it does not diminish the duty

of our government to protect the rights that are secured the govern-

ment of the Republic of Cuba by the Law of Nations.

‘*The recognition by our government of the government of the

Republic of Cuba, headed by Castro, which was in cect at all

times charged in the indictment, precludes any finding by our

courts, and that would include the jurors, that any individual,

group or person claiming to represent the government of the

people of Cuba was a foreign government which had the sovereign

right to print and issue money on behalf of the Republic of Cuba,

headed by Castro [Tr. 818-819]. * * *

‘‘In broad outline the government contends that the defendants

were embarked upon a program to violate our laws aimed at pro-

tecting the currency of a foreign government by preparing plates

for eventual printing of 50 peso Cuban notes, which they intended

to circulate and pass as genuine notes of the existing Castro Gov-

ernment, that they did this without lawful authority’’ (Tr.

836-837).

10

REASONS FOR GRANTING THE WRIT

1. Uncoustitutional Vagueness, Statutory Construction and

Lack of Criminal Intent.

The substantive section under which petitioners were

convicted is 18 U.S.C. § 481.4 This section, insofar as

relevant to this case, makes it a crime to possess, ‘‘except

by lawful authority,’’ any plate from which may be printed

any ‘‘counterfeit’’ note of ‘‘any foreign government.”’

Thus, in order to have obtained a proper vonviction, thir

prosecution should have proved that (1) petitioners

possessed, or were principals to the possession of, one or

more plates; (2) the note which could have been made from

this plate would have been a counterfeit; (3) such counter-

feit note would have been a note of a ‘‘foreign govern-

ment,’’ and (4) petitioners had possession of the plate

without ‘‘lawful authority.’’

It was the theory of the defense at trial—and in fact the

theory upon which Mr. Kohly proceeded from the time he

first initiated his plan*°—that petitioners had lawful

authority to proceed as they did. This theory was based

on two assumptions, either of which was sufficient to

support their claim: first, petitioners had obtained from

certain United States officials sufficient approval of their

‘The conspiracy count, 18 U.S.C. § 571, was based on an alleged

conspiracy to violate 18 U.S.C. §§ 478 (forgery), 479 (uttering),

480 (possessing forged securities), and 481 (possessing plates).

Each of these sections except § 480 includes the phrase, ‘‘any

foreign government.’’ Section 480 refers instead to ‘‘any foreign

country.’’ No effort was made at trial or in the charge to the

jury te distinguish between ‘‘foreign government’’ and ‘‘ foreign

eountry,’’ and in fact the court charged that ‘‘Sections 478 through

481 * * * deal with the currency and obligations of foreign gov-

ernments’’ (Tr. 819). There was no proof that any forgery, utter-

ing or possession of forged securities ever took place. The proof

of a substantive offense was based solely on the possession of a

plate, a violation only of § 481 (see the charge at Tr. 820-822).

5 Tr. 377, 385-387, 396-397, 414-416, 454-455.

11

plan, and, secondly, Mr. Kohly himself was the } «; of an

insurgent government-in-exile which qualified as a . vreign

government’’ under 18 U.S.C. § 11.

(a) Lawful Authority.

‘‘Lawful authority’’ is not defined anywhere in Title 18,

and even the trial judge and the prosecution could not

agree on a proper definition of the term.

The prosecution contended at first that authorization

had to come from each of two sources—the Treasury

Secretary (or the Secret Service Chief) of the United

States and Castro (Tr. 366, quoted in n. 3, supra). The

court disagreed. It thought approval need come only from

Castro (ibid.). The prosecution thereupon adopted the

court’s position before the jury (Tr. 792, 801), and the

court, without ever purporting to define ‘‘lawful authority’’

in specific terms, nevertheless effectively took the issue

from the jury by instructing that only Castro could

authorize the printing of the notes involved in this case

(n. 3, supra).

The District Court’s view that lawful authority can come

only from Castro, however, was refuted by the prosecution’s

own witness, Mr. Charles Carnes, the Records Administra-

tion Officer of the Secret Service, Department of the

Treasury (Tr. 288-289). He testified that certain parties

in this country do in fact produce foreign currency, and

that authorization for such production by the Chief of the

Secret Service would appear in Mr. Carnes’ files.® <A

search of his files had not revealed authorization granted

® Mr. Carnes stated at the outset that ‘‘* * * the Chief of the

Secret Service is authorized * * * |t]o authorize the reproduction

of currency in certain instances,’’ but this statement was stricken

(Tr. 290). Mr. Carnes was then allowed to testify that ‘‘The

authorization to use distinctive forms of paper, for example, is

something that is regulated by the Chief of the Secret Service’’

(Tr. 291), that there are companies in this country that produce

foreign currency (Tr. 292), that ‘‘The Secret Service has responsi-

12

to petitioners. Carnes conceded, however, that if the CIA

or the Military Coordinator for the Vice President

arranged for the printing of foreign currency, Carnes did

not know wheiner his own records would reflect that fact

(Tr. 299-300).

Carnes did not state upon what authority the Secret

Service based its right to approve or disapprove the

production of foreign currency, but research reveals that

the alleged authority stems from Treasury Department

Order No. 173 (Revision Nv. 1) (March 19, 1954), which

is reproduced below.’ This Order has never been pub-

lished in the Federal Register® and therefore was not bind-

ing on petitioners, who had no knowledge of it. Hotch v.

United States, 212 F.2d 280, 284 (9th Cir. 1954); Graham

v. Lawrimore, 185 F. Supp. 761, 764 (E.D.S.C. 1960), aff’d,

bility for enforcing statutes relating to the reproduction of foreign

and American currency”’ (Tr. 293), that ‘‘The individuals or

corporations, more commonly, who might desire to reproduce cur-

rency would be in contact with the headquarters of the Secret

Service’’ (Tr. 294), that a search of his records relating to foreign

eurrency showed no application ‘‘made for authorization on behalf

of’’ petitioners (Tr. 298-299), and that if such authorization had

been granted by the Chief of the Secret Service, there would be

a record of it in Mr. Carnes’ files (Tr. 299).

™*<By virtue of the authority vested in me by Reorganization

Plan No. 26 of 1950, there is hereby delegated to the Chief, United

States Secret Service, authority to perform any function of the

Secretary of the Treasury under title 18, U.S.C., sections 474, 476,

477, 481, 486, 487, 488, 489, 491(a), or 492 relating to offenses

with respect to coins, obligations, and securities of the United States

and foreign governments, and the remission or mitigation of for-

feiture of counterfeiting paraphernalia. /s/ H. Chapman Rose,

Acting Secretary of the Treasury.’’ Reorganization Plan No. 26

simply transferred to the Secretary of the Treasury, with certain

exceptions, ‘‘all functions of all other officers of the Department

of the Treasury and all functions of all agencies and employees of

such Department,’’ and gave him the power to authorize other

Treasury officials to perform his functions.

8 An official of the Secret Service has informed counsel that the

failure to publish this Order in the Federal Register was simply

an oversight.

13

287 F.2d 207 (4th Cir. 1961); United States v. Morelock,

124 F. Supp. 932, 944 (D. Md. 1954).

But even if the Order were valid, the only functions it

delegates to the Chief of the Secret Service are those which

the Secretary of the Treasury has authority to perform

under 18 U.S.C. §§ 474, 476, 477, 481, 486-489, 491(a) and

492. These sections reveal a bew.ldering array of terms

used to describe the various parties who can grant

authorization for the performance of particular acts. For

example:

—‘‘for the use of the United States by order of the

proper officer thereof’’ (§ 474) ;

—‘‘except under the direction of the Secretary of the

Treasury or other proper officer’’ (§ 474); ‘‘except

under authority from the Secretary of the Treasury

or other proper officer’ (§ 474), and ‘‘without

authority from the Secretary of the Treasury or

other proper officer’’ (§ 492) ;

—‘‘except by direction of some proper officer of the

United States’’ (§ 474) ;

—‘‘except under the authority of the Secretary of the

Treasury or some other proper officer of the United

States’’ (§ 474), and ‘‘except under authority of the

Secretary of the Treasury or other proper officer of

the United States’’ (§ 489) ;

—‘‘without authority from the United States’’ (§§ 476,

477);

—‘*upon request by any authorized agent of the Treasury

Department, or other proper officer’’ (§ 492);

—‘‘except by lawful authority’’ ($481) and ‘‘without

lawful authority’’ (§§ 487, 488) ;

—‘except as authorized by law’’ (§ 486) ;

—‘not lawfully authorized’’ (§ 491) ; and

—‘‘either under the authority of the United States or

under the authority of any foreign government”’

(§ 489).

If nothing else, these various phrases show that

(1) where Congress intends proper authority to be vested

in an official of the United States, it spells this out in precise

14

terms, and (2) Congress contemplated in some of these

sections that even where authorization must come from

the United States, some official other than the Secretary

of the Treasury can grant it. These conclusions become

even more readily apparent in the light of the forfeiture

section, § 492, which provides for the forfeiture to the

United States of any apparatus intended to be used in the

making of counterfeits of any foreign government and

found in the possession of any person ‘‘without authority

from the Secretary of the Treasury or other proper officer.’’

This section does not use the phrase, ‘‘other proper officer

of the United States’’ (emphasis added), such as is used

in §§ 474 and 489, and yet the section clearly contemplates

that some official other than the Secretary of the Treasury

can give authorization.

Section 481, under which petitioners were convicted, is

even more ambiguous. It provides that possession shall

be illegal ‘‘except by lawful authority,’’ without any

reference whatever to the United States, the Secretary of

the Treasury, an agent of the Treasury Department, some

other officer of the United States, or a foreign government.

In the light of these various sections and the testimony

of the prosecution’s own witness, it clearly was error to

charge the jury that ‘‘lawful authority’’ meant authoriza-

tion from Castro. If this view of the statute were correct,

the Treasury Secretary and the Secret Service Chief are

presently operating outside the law. Nor can it be main-

tained, in the light of the language quoted above from

these various sections, that only the Treasury Secretary

or the Secret Service Chief can grant authorization on

behalf of the United States, since § 481 is not one of the

sections that spell out the authority of these officia!s;

rather, it refers simply to ‘‘lawful authority.’’ Petitioners

were entitled to an instruction that would have allowed

the jury to find that they had either direct or implied

authority from officials of the United States, and that this

authority was adequate under the statute.

15

The argument above, of course, is grounded on an

attempt by petitioners to bring some semblance of order

and sense to the statute. Cf. United States v. Harriss, 347

U.S. 612 (1954). If the Court for any reason disagrees

with our construction, wc suvmit that these various sections

are unconstitutionally vague and ambiguous. This is, after

all, a criminal statute, and petitioners were entitled, par-

ticularly under the facts of this case,® to ‘‘fair warning’’

of what was and was not prohibited conduct. The Due

Process Clause of the Fifth Amendment to the Constitution

requires no less. Bouie v. City of Columbia, 378 U.S. 347,

350-355 (1964); United States v. L. Cohen Grocery Co.,

255 U.S. 81, 89-92 (1921).

(b) Criminal Intent.

At the very least, petitioners were entitled to introduce

evidence, and to have a proper instruction, that would

have allowed the jury to find that they reasonably believed

in—-and had been led to believe in—their authority to print |

the pesos to such an extent that they could not and did

not possess the requisite criminal intent.*° This record,

even as it stands, simply is not consistent with criminal

®In Lembert v. Califorma, 355 U.S. 255 (1957), this Court held

unconstituticnal a statute which provided criminal sanctions for

failing to register under circumstances that would not alert the

ordinary person to the necessity of registration. Surely, there

is no difference in practical effect or in law between that type

of situation and the one that confronted petitioners here, for

while petitioners were alerted that their conduct would require

‘‘lawful authority,’’ the evidence and the theory of the case they

wanted to submit to the jury was that they were led to believe by

responsible United States officials that they had such authority. In

both cases, parties were effectively misled into cemmitting criminal

acts.

10 The trial judge granted bail pending appeal because he con-

sidered the lack of criminal intent to be a sufficiently serious ques-

tion on appeal (Tr. 889; see also Tr. 742).

16

intent." But more importantly, while Mr. Kohly was

allowed to state that he had formed a de facto government

in Cuba and continued to carry it on in this country (Tr.

350-353, 413, 414, 572-573, 579-582), he was prohibited from

introdacng a vast amount of evidence not only that showed

he was the legitimate heed of a de facto government

recognized in Cuba, in other countries, and by officials

here as well (see argument below under ‘‘ Foreign Govern-

ment’’), but also that bore directiy on the issue of criminal

intent.” Since the United States Government itself has

11 For example, petitioner Kohly sent his 10-peso plan (the fore-

runner of his 50-peso plan) to United States officials; he chose a

photographer, Murrow, who had worked for both the CIA and the

Navy; he chose a printer, Martin, who was represented to him as

having worked for both the United States and foreign governments ;

he wanted Martin to obtain the paper for the pesos through nor-

mal channels; when Morrows said he would have to obtain Govern-

ment clearance, Kohly urged him to do so; Kohly consulted two

attorneys about the legality of his plan; he showed the plates to

Martin not in some secluded byway but in the lobby of the Waldorf

Astoria Hotel; and he insisted on telling his entire story to the

Grand Jury. (See citations in the Statement, supra.) I+ is hard

to imagine a plan niore calculated to come to the attention of United

States authorities.

13Fg., Tr. 318-320, 323-325 (offer of proof at Tr. 328-329),

336-341, 345-346, 353-355 (offer at Tr. 355-361), 364, 386-387, 393-

394, 395, 401, 404-407, 408-408a, 409-415, 418-419, 573-578, 588-

589 (offer at Tr. 590), 675-677, 682). For example, Kohly was

prevented by the court from showing whether, after he had in-

formed the United States officials of his plan, he was then told not

to proceed (Tr. 386-387) ; that he had been recognized by the Gov-

ernment of Guatemala as the head of the legitimate government-in-

exile of Cuba (Tr. 410-411); whether he had applied for similar

recognition from the Vatican and been asked to make a formal

presentation (Tr. 409-419) ; whether, as head of the United Organi-

zations, he had opened an office in Miami at the request of the

United States Government (Tr. 576, 588-589) ; his reliance on, and

the content of, a proclamation by the Cuban underground asking

him to form a government-in-exile (Tr. 404-407 ; Defendants’ Ex-

hixits’ Exhibit B for identification) ; what he had meant when he

17

taken numerous and extraordinary steps (short of formal

withdrawal of recognition) to treat Castro’s government,

in effect, as illegal,"* the ju-y may well have found—if

allowed to do so—that the sam total of facts revolving

about recognition, approval and authority vitiated the

possibility of any criminal intent on the part of petitioners.

told the Grand Jury he had information that there would be no

air support for the Bay of Pigs invasion (Tr. 399-401); what

he did with the radio and telephone equipment that Morrow gave

him for the Cuban underground (Tr. 395); whether he told

Morrow the first time he met him about the officers ard composi-

tion of his United Organizations (Tr. 393-394); and whether a

Cuban officer, the head of a Cuban organization, was also working

with Mr. Kohly’s group (Tr. 578).

18 For example, the United States formally severed diplomatic

relations with Cuba on January 4, 1961. The President, in Procla-

mation No. 3504, Oct. 24, 1962, 17 F.R. 10401, specifically desig-

nated the Castro government as ‘‘the Marxist-Leninist regime in

Cuba.”” 50 App. U.S.C.A. prec. §1 (1964 Cum. Supp.). The

President declared Cuba to be a ‘‘foreign country within the Sino-

Soviet bloe’’ in Executive Order No. 11071, § 2, December 28, 1962,

27 F.R. 12875, 26 U.S.C.A. following § 955 (1964 Cum. Supp.).

And Cuba was designated a ‘‘Communist country’’ in 22 U.S.C.

§ 2370(f) (and in the subsequently enacted amendment, see 1964

Cum. Supp.). Acting pursuaat to 22 U.S.C.A. § 2370(a)-(b), the

resident in Proclamation No. 3447, February 6, 1962, 27 F.R.

1085, declared in part that ‘‘the present Goverument of Cuba

is incompatible with the principles and objectives of the Inter-

American system * * * .’’ More recently, in 22 U.S.C.A. § 1643

(1964 Cum. Supp.), the Congress has referred to ‘‘violations of

international law by the Government of Cuba,’’ and in § 1643a(4)

(1964 Cum. Supp.), the Congress has provided that ‘‘The term

‘Government of Cuba’: includes the government of any political

subdivision, egency, or instrumentality thereof.’’ In 1951 Con-

gress passed 22 U.S.C.A. § 1611, which placed an embargo on the

shipment of materials ‘‘to any nation or combination of nations

threatening the security of the United States, including the Union

of Soviet Socialist Republics and all countries under its domination

*e* ’’ The Secretary of State designated Cuba in February and

March, 1962, as a country under the domination of Russia within

the meaning of this section.

18

(c) Foreign Government.

The District Court took the issue of what constitutes a

‘foreign government’’ away from the jury. It charged

the jury that ‘‘The recognition by our government of the

government of the Republic of Cuba, headed by Castro,

which was in effect at all times charged in the indictment,

precludes any finding by our courts, and that would include

the jurors, that any individual, group or person claiming

to represent the government of the people of Cuba was a

foreign government which had the sovereign right to print

and issue money on behalf of the Republic of Cuba, headed

by Castro’’ (Tr. 819; emphasis added). Thus, the District

Court precluded a finding that a de facto government of

Cuba existed or that Mr. Kohly was the head of it. The

Court undoubtedly based this charge on the well-

established principle that ‘‘ Political recognition is exclu-

sively a function of the Executive.’’ Banco Nacional de

Cuba v. Salebatimo, 376 U.S. 398, 410 (1964). In other

words, since the United States had once recognized the

Castro regime and had never formally withdrawn recogni-

tion, that act of Executive recognition precluded the courts

from inquiring into what constituted a ‘‘foreign govern-

ment’’ for the purpose of printing 50-peso notes.

Petitioners concede that if § 481 stood alone, the District

Court’s charge mi~ht possibly have been a reasonable one.*®

14 This was also the argument made to the Court of Appeals

by the Government (Brief and Appendix for the United States of

America, pp. 12-14). ‘‘The courts may not undertake an inquiry

as to the status as a government of any group not so recognized by

this country and must accept any government so recognized by this

country (id. at 12).

18 ‘We note, however, that this Court has repeatedly recognized

that a government need not be formally recognized and need not

even assume a de facto status in order to enjoy prerogatives and

incur responsibilities. A prime example was the Confederate gov-

ernment. ‘‘The government of the Confederate States, although

in no sense a government de jure, and never recognized by tha

19

But the District Court and the Court of Appeals have both

failed to take note of 18 U.S.C. § 11, which defines the term

‘‘foreign government’’ for the purpose of § 481 and the

other sections under Title 18. In § 11, Congress specifically

has provided, insofar as relevant here, that ‘‘The term

‘foreign government,’ as used in this title, includes any

government, faction, or body of insurgents within a country

with which the United States is at peace, irrespective of

recognition by the United States’’ (emphasis added).

Congress does not have the right, of course, to usurp

the Executive function of recognizing foreign governments.

But it does have the right to define terms in criminal

statutes in any way it sees fit,’® and it has chosen in § 11

to embrace within the term ‘‘foreign government’’ in § 481

a body of insurgents, whether formally recognized by this

country or not.’ Congress has thus chosen to allow the

United States as in all respects a government de facto, yet was an

organized and actual government * * * .’’ Oakes v. United States,

174 U.S. 778, 794 (1899). And in Underhill v. Hernandez, 168

U.S. 250 (1897), this Court held that the acts of Hernandez were

the acts of Venezuela even though at the time he committed them

he was merely the commander of a revolutionary army attempting

to take over the government. See also MacLeod v. United States,

229 U.S. 416 (1913) ; Ford v. Surget, 97 U.S. 1018 (1878) ; Thor-

ington v. Smith, 75 U.S. 1 (1869). In Banco Nacional de Cuba v.

Salebatino, supra, 376 U.S. at 423, 428, 430, the Court was careful

to note several times that matters were not beyond judicial cog-

nizance simply because they reached into the realm of foreign

affairs.

16 Even the definition of ‘‘the United States’’ can change from

statute to statute. See Worthy v. United States, 328 F. 2d 386,

391 (5th Cir. 1964). See also the treatment of the term ‘‘ foreign

ecountry’’ in Cobb v. United States, 191 F. 2d 604, 607-611 (9th

Cir. 1951), cert. demed, 342 U.S. 913 (1952).

17 Since § 11 allows the body of insurgents to be located in any

country with which the United States is at peace, it is obvious that

the insurgents can also be located in the United States. Otherwise,

the section would be self-defeating. Moreover, in one of the few

20

-

jury to determine the factual issue of who constitutes a

foreign government for the purpose of this criminal

statute. Although § 11 was relied on by Mr. Kohly when

he originally developed his plan (Tr. 396-397, 414-416"*)

and by defense counsel at trial (Tr. 782; see also Tr. 780),

the District Court not only ignored §11 but nullified the

statutory phrases ‘‘body of insurgents’’ and ‘‘irrespective

of recognition by the United States’’ by charging that

United States recognition of the Castro regime precluded

jury consideration of the subject (Tr. 819).

If Kohly and his group of insurgents constituted a

‘‘foreign government’’ within the meaning of §§11 and

481, the 50-peso notes could not have been ‘‘counterfeit’’—

an essential element cf criminality—regardless of what

the notes were intended to look like.” If, on the other

hand, the District Court was correct in its interpretation of

§ 481, then petitioners have been denied due process of law

under the Fifth Amendment because of the unconstitu-

tionally vague and confusing interplay between §§ 11 and

opinions that even mentions § 11, a Court of Appeals has held that

the word ‘‘includes’’ is not used restrictively, and § 11 even ap-

plies to a country with which the United States is at war as

well as one ‘‘with which the United States is at peace."’ United

States v. Gertz, 249 F. 2d 662, 664-665 (9th Cir. 1957). If this

is true, § 11 can also apply to a group of insurgents within the

United States itself.

18 See n. 2, supra.

18 Moreover, even if the Court were to reject this argument, and

the notes were deemed ‘‘counterfeit’’ in the sense that they looked

like Castro’s pesos, petitioners still prevail if they had—or were

denied the right to prove that they had-—‘‘legal authority,’’ since

the testimony of the prosecution’s witness, Carnes, shows that

officials of the United States Government can and do sanction the

printing even of evunterfeit money (see pp. 11-14, supra).

21

481. A statute written in such a way as to lead intelligent

men into committing acts that are then deemed illegal

offends due process.

This Court has never determined tlie meaning or

applicability of §11, which is based in large part on

language in the Espionage Act of 1917, § 4 of Title VIII

of the Act of June 15, 1917 (ch. 30, 40 Stat. 217, 226). |

This is, therefore, what the prosecution aptly described

at the outset of the trial as a case of ‘‘first impression”’

(Tr. 10).

© This is not the only way in which vagueness arises out of the

interplay between these various sections. For example, 18 U.S.C.A.

§§ 2 and 371 both apply only to offenses ‘‘against the United

States.’’ But §§ 478-481, upon which §§2 and 371 depend for

specification of the substantive offenses, were not enacted under

the general constitutional delegations of power relating ic offenses

against the United States. Rather, §§ 478-481 are supported by

Article I, Section 8, Clause 10 of the Constitution, which gives

Congress the power to punish offenses ‘‘against the Law of Na-

tions.’’ Sections 478-481 relate to crimes which, though punishable

by the United States pursuant to the Law of Nations, are crimes not

against the United States but against a foreign power. See United

States v. Arjona, 120 U.S. 479 (1887); Umited States v. White,

27 Fed. 200 (E.D. Mo. 1886). Cf. Tyson v. Umted Statcs, 285.

F.2d 19, 21 (10th Cir. 1960). Therefore, §§ 2 and 371 either were

not properly invoked in this case or give rise to unconstitutional

vagueness because the ordinary person could well assume that the

conspiracy and ‘‘principal’’ statutes are not applicable to the

offenses prescribed in §§ 11 and 478-481.

The unusual and variable nature of §§ 11 and 481 themselves is

illustrated by United States v. Gertz, 144 F. Supp. 740 (D. Hawaii

1956), aff’d, 249 F. 2d 662 (9th Cir. 1957), where a properly con-

stituted and formally recognized government was neverthele~3

held not to come within the meaning of these sections simply be-

cause it was no longer in power.

22

2. The Entrarsnent Issue.

Petitioners requested the District Court to charge the

jury on the issue of entrapment (Tr. 740-741, 847). The

court, however, refused to allow this i-3ue to go to the

jury (Tr. 310-311, 743, 847).

Clearly, there was substantial evidence of entrapment.

The overt acts under both the conspiracy count and the

illegal possession count allegedly took place in New York,

where the indictment was brought (Tr. 822-824, 833-834).

Yet there was evidence that petitioners went to New York

solely at the behest of Martin, a Government Secret

Service agent (Tr. 431, 447, 449, 450, 451). Martin had

been ‘‘specially’’ detailed from his office in New York to

the vicinity of Washington, D. C., where petitioners lived

(Tr. 609, 652, 891), for the purpose of posing as a man who

could print t. e 50-peso notes (Tr. 27, 67, 102-103). As he

himself put it about his frame of mind when he left for

the assignment, ‘‘I knew what we wanted’’ (Tr. 68). If it

had not been for him, no alleged crume would have taken

place in New York, and this indictment could not have

been filed.

Similarly, a vital contention in the prosecution’s case

was that petitioners were not simply attempting to buy

arms and ruin Castro’s economy but rather that they were

interested in making a profit. See, e.g., the prosecution’s

argument to the jury at Tr. 794. Yet Martin, the Govern-

ment’s agent, testified that it was not petitioners who

suggested making a profit. This subject arose only after

Martin, posing as a printer, told Kohly that he himself

was not interested in patriotism or helping the Cuban

underground; ‘‘my only interest in it would be to make

money * * *’’ (Tr. 29}. So far as Martin was concerned,

**it was a profit-making scheme”’ (ibid.) ; ‘‘I was interested

in making money”’ (Tr. 105). See also Tr. 372-373. This

was, as Martin admitted, ‘‘a ruse’’ (Tr. 108), and it was

23

only in the face of this ruse that Kohly, if he spoke of the

subject at all (see Tr. 375, 403), referred to potential

profits in order to keep the ‘‘printer’’ in a venture that

Kohly regarded as essential to the life of his country.

The record is clear from Martin’s own testimony that no

suggestion of making a profit would ever have been made

if Martin himself had not insisted that this was the only

way he could be brought into the venture.

Martin was the same Secret Service agent who repeatedly

telephoned Mr. Kohly (Tr. 39, 45, 52) and who came to

his house (Tr. 372) before the commission of the alleged

crime. He was the same agent who, in his own words,

‘‘ultimately * * * prevailed upon him [Kohly] to open

the bag and let me see the plates’’ (Tr. 53) in New York

at the time Kohly was arrested. He was the same agent

who admitted that he ‘‘used a lot of ruses in this particular

matter, in this case * * *’’ (Tr. 108). Yet Martin was

not working alone. Another agent listened to Grosh’s

telephone conversation without his consent (Tr. 164-166,

177-181, 224, 231-242, 796), while a total of sia agents

became involved in the various activities leading up to the

arrests (Tr. 90, 115-116). Even Morrow, the man who

allegedly carried out the process of photographically

developing the plates, had worked for both the CIA and

the Navy (Tr. 199-201, 211-212, 453, 459-460, 599), so that

the jury could have found that every necessary step in

the alleged plan was participated in by a Government

employee or agent, as well as the final inducement to bring

the plates to New York City.

Clearly, there was ‘‘some showing of the kind of conduct

by government agents which may well have induced the

accused to commit the crime charged.’’ Lopez v. United

States, 373 U.S. 427, 434-425 (1963). The question is not

whether entrapment was proved as a matter of law; the

question is whether petitioners were ‘‘entitled to have the

question submitted to the jury for its decision under an

24

appropriate instruction.’’ Johnson v. United States, 115

U.S. App. D.C. 63, 64, 317 F.2d 127, 128 (1963).™

3. The Mallory Issue.

Petitioner Kohly, instead of being taken promptly before

a committing magistrate upon his arrest, was taken instead

to the Federal Building at 90 Church Street and questioned

by several Secret Service agents (Tr. 118, 119). He was

then transferred, again not to a committing magistrate,

but to the office of an Assistant United States Attorney—

the same one who eventually prosecuted petitioners at

trial. Further questioning of Kohly ensued, and addi-

tional statements were obtained from him which were

introduced in evidence against both petit:oners at the trial

(Tr. 119-125, 130).

This conduct constituted a clear violation of Federal

Rule of Criminal Procedure 5(a), and the introduction of

Kohly’s statements was plain error affecting the sub-

stantial rights of both petitioners. Mallory v. United

States, 354 U.S. 449 (1957); Spriggs v. United States, —

U.S. App. D.C. —, 335 F.2d 283 (1964); Naples v. United

States, 113 U.S. App. D.C. 281, 307 F.2d 618 (1962);

Federal Rule of Criminal Procedure 52(b).”

4. Ineffective Assistance of Counsel.

Petitioners’ trial was a mockery. From beginning to

end, it was marked by outright hostility between counsel

and the trial judge and ‘‘an intermittently continuous

“In the Johnson case, even though the appellant purchased

nareoties entirely on his own, the fact that a Government agent

(1) gave money to a third party who presumably gave it to the

appellant and (2) drove the car for appellant, was held sufficient

to take the issue to the jury. In the instant case there was clearly

far more active Government provocetion, direction and control

than in Johnson.

*2 The Mallory issue was not raised either at trial or on appeal.

But see pp. 27-29, infra.

25

wrangle on an unedifying level.’’ Offutt v. United States,

348 U.S. 11, 17 (1954). On the first morning of trial, the

judge told the attorneys for both sides, ‘‘You are both

very contentious and I want it stopped before we get

started. * * * In preliminary matters I saw the same

contentiousness and almost arbitrary attitude on the part

of each. It is going to stop’’ (Tr. 20). But it did not stop.

During the entire trial, the attorneys continued to snipe

at each other and at the court, and at the conclusion the

judge told petitioners’ attorney: ‘‘This is an example

again of something you have done through the trial. * * *

It doesn’t make sense and you know if I acted on this

motion that was made by your own conduct, I would have

no doubt as to what I would do’’ (Tr. 860-861).

Present counsel cannot distribute the blame. The trial

judge may well have had cause for irritation by the conduct

of counsel.** But the fact remains that petitioners were

the innocent victims of the byplay. The court, no matter

how vexed, had no right to forego its judicial impartiality

to the detriment of the defendants. Yet the record shows

that this is precisely what occurred. The judge accused

defense counsel, for example, of elaborating too much

(Tr. 61, 537, 548), wasting time (Tr. 72, 99-100), not listen-

ing to questions (Tr. 152), interrupting (Tr. 159, 289, 290,

510, 512, 537-538, 547, 555, 734, 795), making unnecessary

statements (Tr. 196, 583, 596, 674), delaying matters or

failing to move along (Tr. 207, 328, 331, 427), putting

improper questions (Tr. 458-459, 597, 601, 638), conducting

*8 Defense counsel requested that 148 witnesses—including Presi-

dent Johnson—be brought to the trial from all over the country

at Government expense (Tr. 21, 873). He apparently was respon-

sible for the loss of two very important defense witnesses (Tr.

681-682), and through a misreading of the complaint he was not

even familiar with one of the sections under which petitioners were

convicted (Tr. 307-308). Over 150 objections by the defense coun-

sel were overruled, or his motions denied, during the four days of

testimony.

improper redirect examination (Tr. 582), going far afield

(Tr. 393-394, 395, '778), making speeches (Tr. 329),

repeating matters as to which objections had beun sustained

(Tr. 329, 406), discussing improper matters in front of

the jury (Tr. 342, 683-684), asking pointless questions

(Tr. 352-353), talking too loudly or yelling (Tr. 358, 583,

663-664), leading witnesses (Tr. 36, 393, 428, 432, 597, 614,

627), asking questions that had nothing to do with the

case (Tr. 409), making requests at the wrong time (Tr.

576), not letting a witness testify (Tr. 60), repeating

himself (Tr. 687-688), unnecessarily reading material

(Tr. 328), failing to put direct qnestions (Tr. 465), com-

menting on a witness’s testimony (Tr. 127), not putting

questions specifically (Tr. 241), trying indirectly to do what

he could not do directly (Tr. 411), arguing too much

(Tr. 71, 412, 568, 583), failing to go on to another subject

(Tr. 103, 193), and going ‘‘all over the lot’’ (Tr. 327).

Much of this occurred in ue presence of the jury.

Typical of the court’s comments to petitioners’ attorney

were the following:

‘*Stop the bickering, will you please. Stop the

histrionics and get down to the essentials and the case

will move along’’ (Tr. 278).

**You ask a question and then you don’t give him

a chance to answer and you pass a comment’’ (Tr. 191).

**T must say for the record that this is somewhat

of a misrepresentation as to the circumstances under

which your motion was granted’’ (Tr. 343).

**T don’t agree with you one bit on that and I won’t

allow your characterizations to go on’’ (Tr. 444).

**T must ask you to refrain from characterizing the

manner in which the questions were put to the witness

because I do not agree with you”’ (Tr. 463).

**T am going to ask the jury to please disregard

these statements by counsel’’ (Tr. 470).

**I don’t need any explanation from you as to what

your point is’’ (Tr. 546).

**You don’t submit any such thing. * * * I am

controlling this case’’ (Tr. 664),

27

‘‘That is your statement. I show no annoyance,

and let me say now that the record will indicate that

your statement that you make your objections as a

a lawyer will best be answered by this record’”’ (Tr.

665-666).

*‘We are not playing games here * * *’’ (Tr. 284).

‘‘This is typical of some of the other things that

went on in this trial’’ (Tr. 862).*

Clashes between the court and counsel were frequent,

often bitter, and sometimes sarcastic. The court was even

** The court’s attitude toward defense counsel undoubtedly was

magnified in the jury’s eyes by the defense counsel’s attitude

toward his own clients. Twice in his summation and once to the

court he referred to one or both of his clients as ‘‘shnooks’’ (Tr.

739-740, 751, 754; see also Tr. 875), and typical of his comments

to Mr. Kohly during the trial were these: ‘‘Don’t talk so much”’

(Tr. 497); ‘‘Please, Mr. Kohly, let the judge rule’’ (Tr. 352);

‘*Don’t tell me ‘The same thing.’ Tell us so that we know’’ (Tr.

386) ; ‘‘Please don’t answer except what he asks you’’ (Tr. 477) ;

‘*Could you wait until the Judge rules’’ (Tr. 479) ; ‘‘ Answer my

question’’ (Tr. 480); ‘‘May I respectfully ask your Honor to

tell this witness that when I stand up rot to answer the question

* ©?” (Tr. 481) ; ‘‘Don’t shake your head. If you have anything

to say, say it for the record’’ (Tr. 586) ; ‘‘My question can take a

yes-or-no answer’’ (Tr. 485); ‘‘Please. Would you please wait

until the question is asked’’ (Tr. 485); ‘‘Can’t you stop?’’ (Tr.

501) ; ‘‘Would your Honor ask the witness to please wait’’ (Tr.

566) ; ‘‘He is running this court and not you’’ (Tr. 567). The

court occasionally joined in the criticism (e.g., Tr. 383, 486).

25 In one, when the court interrupted a defense objection, coun-

sel said, ‘‘Thank you for permitting me to finish. I say that

respectfully, str,’’ and the court replied, ‘‘I assume that you do’’

(Tr. 269). In another, when defense counsel asked if he had

angered the court, the judge in reply accused him in the jury’s

presence of suggesting that ‘‘the Court of its own created that

statement’’ (Tr. 568-569). In still another, the defense counsel

commented that the proseeutor ‘‘should conduct himself as a

lawyer,’’ and the court replied, ‘‘I think you both should. * * *

Sufficient has been indicated during the course of this trial for the

court to state for the record that both of you have not conducted

yourselves the way lawyers should in the conduct of this trial’’

(Tr. 286).

28

critical of the defense attorney out of his presence and in

front of the jury because of a delay in the trial due to a

traffic tie-up (Tr. 521-522). Defense counsel finally raised

the issuc of ineffective assistance of counsel.”

Other instances of improper conduct are reflected in the

record. The court at one point mischaracterized—

undoubtedly inadrertently—the statement of Mr. Kohly

(Tr. 416), and at another would not allow the defense to

object to a misstatement of fact by the prosecution during

summation (Tr. 795). The prosecution relied on a report

not in evidence (Tr. 796-797). Only once during the trial

did the court instruct the jury when it left the box not to

discuss the case, and at no time during the entire trial

did the court instruct the jury not to read about the trial

(Tr. 78, 182, 187, 257, 278, 285, 519-520, 602, 666, 738, 786).

One prosecution witness, who had herself pleaded nolo

contendere to a charge in this case, sat in the courtroom

and listened to the very testimony she then took the stand

to rebut, despite a rule by the court excluding witnesses

(Tr. 668, 700-701, 708-719, 809-810).

Unfortunately, petitioners’ lack of effective representa-

tion continued on appeal, although there was a change of

counsel. Only a complete review of the appellate briefs

can adequately demonstrate this point, but the sentence

36 «<T respectfully submit that your Honor’s indication of annoy-

ance is very apparent and it is apparent to the jury, and in that

way the rights of these defendants are being impaired to the point

where they may very well not listen to counsel’s summation, argu-

ments in behalf of his clients and he therefore has been deprived

of his constitutional rights of representation by counsel so that

counsel can properly present the arguments of the defendants, and

I must move for a mistrial at this point’’ (Tr. 666).

29

reproduced below from the main brief is typical.” Counsel

completely failed to argue the entrapment and Mallory

questions discussed above, although entrapment had been

preserved at trial.”

Petitioners submit that through the actions of the court

and their own attorneys, they lacked effective assistance

of counsel throughout the proceedings below and therefore

were denied due process of law in violation of the Fifth

Amendment to the Constitution, and the assistance of

counsel for their defense under the Sixth Amendment to

the Constitution. Cf. United States v. Gargutlo, 324 F.2d

795, 796 (2d Cir. 1963); United States v. Wight, 176 F.2d

376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950 (1950).

CONCLUSION

This case presents important issues in the delicate area

where criminal law and foreign policy overlap. Petitioners

in no way seek to intrude in this country’s foreign affairs,

either directly or through the courts. But they are

27**The case at bar raises a serious question as to whether a

domestic court of the United States should attempt an importation

into the law of the import of recognition of a government as per se

being conclusive in construing the terms ‘any government’ in the

pertinent criminal statutes, when the ‘ political’ departments’ policy

and the legislative intent both are not expressed as to applicability

of the statutes, and requires that the pertinent criminal statutes

be interpreted that a recognized government, whose currency the

statutes are intended to protect, cannot waive the protection of

the statutes by its own actions less than by a declaration of war

against the United States, particularly since withdrawal of diplo-

matic relations appeared to be meaningless to the Court below’’

(page 28).

28 Petitioners contend that the violations were so blatant and so

serious as to be cognizable under Federal Rule of Criminal Pro-

cedure 52(b).

30

entitled not to be prosecuted for acts which United

States officials and the wording of our criminal statutes

not only have failed to condemn in clear and unambiguous

terms but have actually encouraged. We submit that under

these circumstances certiorari is clearly appropriate.

Respectfully submitted,

E. Barrett PrerryMan, JB.

Cuaries W. Hatieck

815 Connecticut Avenue, N.W.

Washington 6, D. C.

Attorneys for Petitioners