Brief for the United States in Opposition — District of Columbia ex rel. Capital Lighting & Supply Inc. v. Merando Inc.

INDEX

Opinion below_...-.----------------------------------

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Questions presented__......---------------------------

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CITATIONS

Cases:

United States v. Arjona, 120 U.S. 479_---------------

United States v. Ladson, 294 F. 2d 535, certiorari

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Statutes and rules:

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F.R. Crim. P.:

773-720—65

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Gu the Supreme Gourt of the Ginited States

Octosper TERM, 1964

No. 1061

Wii1mM GrosH AND Mario Garcia KOoHLy,

PETITIONERS

v.

Untrep States oF AMERICA

-

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

B 4a-7a) is reported at 342 F. 2d 141.

~—

JURISDICTION

The judgment of the court of appeals was entered

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

Justice Harlan extended the time for filing a petition

for a writ of certiorari to and including April 12,

1965. The petition for a writ of certiorari was filed *

on April 12, 1965. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

1. Whether, in a prosecution for conspiring to coun-

terfeit the currency of the Castro gcvernment in

(1)

2

Cuba and for possessing plates to make such currency,

the Comt properly charged the jury that no other

group claiming to be the government of Cuba had

the authority to print currency of the Castro govern-

ment.

2. Whether the trial court improperly excluded

evidence.

3. Whether the court erred in not instructing upon

the defense of entrapment.

4. Whether plain error was committed in admitting

into evidence statements of a defendant made prior to

his preliminary hearing.

5. Whether petitioners were denied the effective

assistance of counsel.

STATUTES INVOLVED

18 U.S.C. 11 provides:

§11. Foreign government defined.

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.

18 U.S.C. 481 provides in pertinent part:

§ 481. Plates or stones for counterfeiting for-

eign obligations or securities.

Whoever, within the United States except by

lawful authority, controls, holds, or possesses

any plate, stone, or other thing, or any part

thereof, from which has been printed or may

be printed any counterfeit note, bond, obliga-

tion, or other security, in whole or in part, of

any foreign government, bank, or corporation,

3

or uses such plate, stone, or other thing, or

knowingly permits or suffers the same to be

used in counterfeiting such foreign obligations,

or any part thereof * * * [s]hall be fined not

more than $5,000 or impriso..ad not more - than

five vears, or both.

STATEMENT !

Petitioners Kohly and Grosh, together with Cecily

Morrow and Robert Morrow,’ were indicted in the

Southern District of New York in a two count indict-

ment charging conspiracy to print counterfeit 50 peso

Republic of Cuba notes and posession witaout lawful

authority of plates to print counterfeit 50 peso Re-

public of. Cuba notes in violation of 18 U.S.C. 481

(1 BR. 2-4). Petitioners were convicted after a jury

trial (Tr. 854). Each was sentenced to imprison-

ment for a period of one year on each count, the

sentences to run concurrently (Tr. 887).

The statement of facts in the petition does not

differentiate the evidence presented by the govern-

ment from the evidence for the defensc. We sum-

marize the evidence at the trial as follows:

(1) The Government’s Case:

In the spring of 1960, petitioner Kohly, a Cuban

exile, told Robert Morrow that he wanted to reproduce

Cuban pesos which could be distributed by the under-

ground in Cuba. Morrow prepared plates from

which 10 peso notes were manufactured until Au-

gust, 1961, when Castro changed the Cuban currency

The Morrows pleaded nolo contendere in a case transferred

to the District of Maryland pursuant to Rule 20, F.R. Crim. P.

(Tr. 135, 713-714).

4

(2 BR. 48-51). Morrow also supplied Kohly with

some radio equipment for the Caban underground

(Tr. 195-198, 218-219)" ate

In May, 1963, Kobly arranged for Morrow to pre-

pare plates for a 50 peso Cuban note and subsequently

furnished him with $110 to buy materials (2 R. 35-36,

44-45). In July, 1963, Morrow advised Kohly that

he needed a professional printer if the notes were to

pase the strutiny of the Cutan government (2 R.

45-26).

On July 2, 1963; Harris Martin, a Secret Service

undercover agent, was introduced to petitioners by

attorney J. Walter Scholz as a New York printer

who might counterfeit Cuban pesos from plates.

Kohly wanted Murtin to invest $10,000 to finance

the plates and other supplies. He said he was con-

nected with the underground Cuban movement and

that he was anxious to use these pesos to buy boats

and weapons to support the underground movement.

Martin stated an interest in printing only if he could

make a profit: Kohly offered him a profit, saying

the pesos would be sold to Cuban refu,ees in Florida

before any would be dropped by air over Cuba.

Martin said that this was a risky illegal enterprise.

Kehly said that was the reason the return was high

aud that Martin need not worry because Kohly had

discussed his plan with the O.1.A. and the F.B.I. who,

Kohly said, were closing their eyes to the scheme.

'* Morrow, who had designed and developed a unit of elec-

tronic equipment for the C.I.A. in February, 1962 (Tr. 199-

201), denied that he told Kohly that he werked for the C.1.4.

(2 R. 54). Earlier in 1958 2nd 1959 Morrow had done some

secret work for the Navy Department (Tr. 213).

5

Kohly said that the protection he enjoyed from these

agencies would cover Martin (Tr. 24-30, 35, 103-

107). Petitioners agreed to arrange a meeting with

the plate maker after Martin said he would not make

any investment unless he saw the plates or talked to

the plate-maker (Tr. 33-34).

On July 30, Kohly informed Martin that he no

longer needed his financial assistance. He agreed to

pay Martin $7,000 to print 40 million pesos, suggest-

ing that Martin could receive more money if he would

accept payment in Cuban pesos that —— would sell

for him in Florida (2 R. 10-12).°

On September 19, 1963, puthebitinee: eaediit and

Martin discussed plans for the production of the

pesos. Morrow sug ested that Martin obtain the

paper through normal channels ‘‘as there would be

nothing wrong with that”? (2 R. 14-15, 38-39).

After Morrow turned the finished plates over to

Grosh and to Kohly’s son (2 R. 36-37), Kohly ar-

ranged to deliver the plates to Martin. They met on

September 30, 1963, but Kohly claimed that he had

left the plate-maker before the plates had been com-

pleted (2 R. 17-18). On October 1, 1963, they met

again. When Martin ascertained that Kohly had

the plates, he signalled other agents and Kohly was

arrested. That night petitioner Grosh telephoned

Morrow and told him to “get rid of the stuff’”’ (2 R.

53, 55).

On November 21, 1963, Kohly appeared as a grand

jury witness at his own request after being advised

by his attorney. He acknowledged that he did not

have either official or unofficial approval from any-

body in the United States Government for what he

did. He denied telling Martin that the F.B.I. and

that he told Martin that Morrow elaimed to have

discussed it with some government people who con-

sidered it a good idea because it would help over-

throw Castro. Kohly testified that he did not have

the consent of the Castro government to make the

plates and produce the bill because “[w]e_ considered

ourselves to be the government of Cuba” (Tr. 270-

273)... :

(2) The Defense:

_ Petitioners testified on their own behalf and por-

tions of Kohly’s grand jury testimony were read.

Kohly testified that he had united 96 organizations

whese stated aim was the liberation of Cuba from

Castro (Tr. 349-350). The grand jury testimony

showed that in 1960, after arrangements had been

made through Vice President Nixon, Kohly discussed

with a C.I.A. agent methods by which Castro could

be overthrown (Tr. 399-400); that in 1961 he turned

over to the United States Government a 10 peso note,

a plan for the unification of the Cuban exile forces

and a proposed budget for Cuba; that on August 16,

1961, the note and the papers were returned to him

(Tr. 382-385); and that Kohly thought he had the

right to print Cuban money as the head of the Cuban

government in exile (Tr. 396-397, 413-414). Kohly

testifieu that Mo: row would not make plates for him

until Morrow obtained full clearance from the Secret

Service and the C.LA. and that Morrow informed

him in August, 1963, that he had secured such clear-

=

7

ance €Tr. 389-390, 436-438, 553-557). Kohly also

said that Martin told him that he had printed securi-

ties for foreign governments and the United States

(Tr. 452-455). Petitioner Grosh testified that he

was in effect a chauffeur for Kohly and had no

knowledge of his activities (Tr. 593 ff.).

ARGUMENT

1. As the currency of a recognized foreign govern-

ment, at peace with the United States, the currency

of the Castro Cuban government is protected by the

counterfeiting statutes. See United States v. Arjona,

120 U.S. 479. Thus, even if petitioners’ claim to rep-

resent a government of Cuba in exile is accepted, they

would not have had the right to print the currency of

the Castro government. Nor are petitioners aided by

18 U.S.C. 11, upon which they rely. That section de-

fines foreign government as “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.’’ On petitioners’ logic, their

government in exile could at most print its own cur-

rency; it could not lawfully counterfeit the currency

| of a different recognized government. The trial judge

therefore properly charged the jury (Pet. 9, footnote

3) that the “recognition by our goverument of the

government of the Republic of Cuba, headed by

Castro, * * * precludes any finding by our courts,

and that would include the jurors, that any indi-

vidual, 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.” *

2. The trial judge did not erroneously exclude evi-

dence showing approval of portions of Kohly’s plan

by United States officials. The judge initially denied

petitioners’ proffers of evidence on the ground the

offer did not show any authorization for the plates in

’ question (2 R. 62-66; Tr. 355-361). This ruling was

modified shortly thereafter tc permit Kohly to explain

his grand jury testimony, introduced by the govern-

ment, in which Kehly admitted that he had no ap-

preval frem the Od.A. or F.B.L...(2 R. 68-69; Tr.

365-367). and this evidence came in (Tr. 399-400).

Kohly testified that Morrow told him he had govern-

* Petitioners urge (Pet. 11-15) that they had “Inwful av-

thority” to print the currency of the Castro government. In-

sofar as this is a contention that, as an alkged government im

exile, they had authority to counterfeit the Castro government's

currency, we have shown in the text that #f is erroneous. As

to petitioners’ argument that they had “lawful authority” flow-

ing from the government of the United States to print Castro

currency, petitioner Kohly himself, in his grand jury testimony,

stated flatly that he “never” had “the blessings of the United

States Government * * * for the work I’ve been doing,” that he

did not have “official or unofficial approval” and he further denied

telling Martin that the F.B.I. and the C.I.A. had approved

his undertaking. (Tr. 270-273.) In any event, petitioners do

not suggest that they requested an instruction on this theory of

defense. er

Moreover, the evidence that the Secret Service does on

occasion grant authority for foreign currency to be printed

in the United States did not destroy the government’s case, as

petitioners imply. The purport of the testimony ot Carmse

(Tr. 290-292) is that such authority is granted when a domes-

tic company cofitracts with a foreign government to produce

its currency. Petitioners did not claim such authority.

9

ment clearance and that Martin said he had done

printing for the United States and foreign govern-

ments. As to testimony concerning recognition of

Kohly’s group by Guatemala and steps to obtain rec-

ognition by other nations, this would at most have

tended to show that petitioners considered themselves

as constituting a government in exile, which, as we

have shown, did not bear on petitioners’ guilt in imi-

tating the currency of the recognized government of

Cuba.* ; |

_ 8. Under Kohly’s own evidence there was no en-

trapment and therefore no error in not instructing

in that issue. His testimony showed that before

Martin (the undercover agent) came into the case,

Kohly himself had asked Morrow to prepare the

plates. Kohly’s statement that Martin asked to meet

him in New York does not show inducement by a

government agent to commit a crime, nor was Mor-

row'’s past employment by the C.I.A. in 1962 relevant

to alleged entrapment by Martin in 1963. The state-

ment by Martin that he was interested in a profit can

hardly be said to have caused the commission of the

crime. Finally, the issue whether an entrapment

instruction should have been given was not urged

in the court of appeals and thus clearly does not war-

rant review here.

* Petitioners also claim that the court guve no proper instruc-

tion on c™'minal intent. The court properly charged that a con-

Spiracy cou..t required that a defendant act with a deliberate

purpose to violate the law (2 R. 124-125) and that the sub-

stantive count required that a defendant act “deliberately” (2

R. 127). There was no exception to this instruction.

“ 10

4. Petitioners, who neither objected at trial or on

appeal, have no basis to complain here about the

admission into evidence of post-arrest statements

made by Kohly to Secret Service agents and to an

assistant United States attorney (2 R. 30-34). In

both instances, Kohly was advised that he could re-

main silent and haf « right to consult an attorney;

the assistant United States attorney offered him a

telephone to call an attorney. The substance of

Kohly’s post-arrest statements was in most respects

similar to the grand jury testimony that he gave

seven weeks later on advice of his attorney. The

failure of trial counsel to object may thus reasonably

be considered to have been defense strategy framed in

light of the generally exculpatory character of the

statements. In any event, it is not clear that the pro-

visions of Rule 5(a) were violated since petitioners’

failure to object to the sdmission of the post-arrest

statements deprived the trial court of an opportunity

to ascertain, prior to the admission of the statements,

whether Kohiy’s post-arrest detention was, in fact, il-

legal. In these circumstances, there was clearly no

plain error which this Court should consider in the

absence of objections below. See United States v.

Ladson, 294 F'. 2d 535 (C.A. 2), certiorari denied, 369

U.S. 824.

5. In the court of appeals, petitioners claimed that

they were deprived oi a fair and impartial proceed-

ing by Judge Weinfeld’s conduct of the trial. The

court reviewed this contention and found it to be

lacking in merit. In this Court, petitioners have

changed the issue, claiming that the action of the

il

trial judge coupled with the conduct of defense coun-

sel deprived them of the effective assistance of counsel.

We submit that an examination of the record shows

this assertion to be wholly unfounded. Petitioners ex-

tract instances where defense counsel was overly con-

tentious and where Judge Weinfeld acted reasonably

to control the proceedings. Counsel, however, is not

constitutionally ineffective simply because the court

rules against him or because he is overzealous. Peti-

tioners have failed even to separate the remarks made

outside of the presence of the jury (c.g., see Tr. 20,

286, 327-329, 358, 860-862) from those made in its

presence. The jury was, moreover, clearly instructed

not to draw any inferences from the court’s rulings

(2 R. 113-114).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ARCHIBALD Cox,

Solicitor General.

Frep M. Vinson, JYr.,

Acting Assistant Attorney General.

BEATRICE ROSENBERG,

Srpney M. GLAZER,

Attorneys.

May 1965.

U.S. GOVERNMENT PRINTING OFF:CE: 1968