Petition for Writ of Certiorari — Cook v. Republic Steel Corp.

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SUPREME COURT, U, Sy

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

JAMES P. COLEMAN,

Ackerman, Mississippi,

Attorney for Petitioner.

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STATEMENT OF THE CASE ..............50-.--

TABLE OF AUTHORITIES.

Cases:

McNabb v. United States, 1943, 318 U. S. 332, 340

United States v. Caiifornia Co-op Canneries, 279

U.S. 553, 73 L. Ed. 838; 49 S.Ct. 423 ......

Miscellaneous:

United States Code, Section 5205 (a) (2), Title 26

United States Code, Section 5604 (a) (1), Title 26

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Rules of the Supreme Court Rule 19 (1) (b) ....

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versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

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Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States Circuit Court of

Appeals for the Fifth Circuit entered in this case on

January 25, 1965, 340 Fed. 2d 612, and on which a Petition

for Rehearing was denied without opinion, on March 22,

1965. te —

The opinion of the Circuit Court of Appeals of January

25, 1965, as well as its prior opinion of December 27, 1962,

311 Fed. 2d 441; are printed in the Appendix hereto.

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The jurisdiction of this Court is invoked under 28 USC

1254 (1).

QUESTION PRESENTED.

Is evidence obtained by the Government through the

agency of an informer who had been employed on a con-

tingent fee basis to apprehend the Defendant in a crime

not yet committed admissible against that Defendant’

Petitioner believes this to be “an important question of

federal law which has not been, but should be, settled by

this Court”, within the meaning of Rule 19 (1) (b) of the

Rules cf the Supreme Court.

STATEMENT OF THE CASE.

The Petitioner was indicted for the possession of 179

gallons of whiskey in containers not having stamps affixed

thereto as required by Section 5205 (a) (2), Title 26,

United States Code; in violation of Section 5604 (a) (1),

Title 26, United States Code. Upon conviction, he ap-

pealed to the United States Court of Appeals for the Fifth

Circuit. The conviction was reversed, 311 Fed. 2d 441

(No. 19,382 in the Court of Appeals). A petition for re-

hearing was denied.

The evidence necessary to convict had been obtained

through the agency of an informer who had been em-

ployed, on a contingent fee basis, to apprehend the De-

fendant in a crirae not yet committed.

In reversing the original conviction for further proceed-

ings not inconsistent with the opinion of the Court, it was

held:

That the evidence obtained by the use of Moye would

be admissible only if it were shown (1) the Government

investigators had certain knowledge that Williamson was

engaged in illicit liquor dealings; and (2) that the in-

vestigators carefully instructed Moye on the rules of en-

trapment and had it clearly understood that Moye would

not induce the Defendant to commit a crime, but was

simply offering him an opportunity to do so.

After reversal, the case was tried the second time be-

fore the District Judge, without a jury.

At that second trial the Government made no effort to

meet either of the above requirements. As if there had

never been a ruling by the Court of Appeals on the ad-

missibility of the evidence, the prosecutor presented the

agent, Mr. Robert E. Lee, who gave the same testimony as

at the former trial.

At the proper point, the Defendant objected to its ad-

missibility, citing the ruling of the Court of Appeals

(R. 15-18). The Court reserved ruling on the objection.

After the Government rested without making any effort

to render the testimony admissible, the trial judge over-

ruled the motion to exclude.

The Defendant took the position that Lee’s testimony

had already been condemned by the Court of Appeals,

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and rested. Thereupon, on the sole basis of Lee’s Testi-

mony, the Court convicted Williamson. .

Williamson again appealed, but the Circuit Court of

Appeals held that since Moye’s deposition was not used in

the second trial the conditions prescribed by the former

opinion were not pertinent, and the Government was not

required to meet them.

The Court of Appeals further said: “Nor was there any

evidence which the Trial Judge knew either judicially,

actually, or factually which indicated that the initiation

or prosecution of this case was the fruit of any illegal

contingent agreement with Moye”.

With deference, Petitioner is unable to understand this,

in view of United States v. California Co-op Canneries,

279 U.S. 553, 73 L. Ed. 838; 49 S. Ct. 423, holding that a

Federal Court judicially knows its own record.

A Motion for Rehearing was filed in which Petitioner

contended “that the decision rendered in Williamson v.

United States, Sith Cir., 1962, 311 F. 2d 441, was directed

to the fruits of the contingent fee employment of the in-

former, Moye”.

This was overruled without opinion.

—— on

Ressons for Granting the Writ.

We feel that what the Court of Appeals said in its

original opinion should be and is the law, and that the

Court should have enforced its own opinion to that effect

on the second appeal:

“Without some justification or explanation, we

cannot sanction a contingent fee agreement to pro-

duce evidence against particular named defendants

as to crimes not yet committed”.

Under the principles settled in McNabb v. United States,

1943, 318 U. S. 332, 340, and its progeny, however, “it

becomes the duty of the Courts in federal criminal cases

- to require fair and lawful conduct from said agents in

furnishing all evidence of crimes. Moye’s testimony,

standing alone and unexplained, discloses a form of em-

ployment of an informer which this Court cannot approve

or sanction”.

We feel that the second appeal, before a different panel,

did not enforce the sound rule of law announced by the

same court on the first appeal.

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C *NCLUSICN.

We, therefore, respectfully pray the Supreme Court of

the United States to review the judgment of the Court

of Appeals and to settle the questions here raised.

Respectfully submitted,

KO 1S 16 OOOH ES OIG 10S -O5G:181 O'S TO OO

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CERTIFICATE.

I, James P. Coleman, the Attorney for Jack Marrin

Williamson, the Petitioner herein, and a Member of the

Bar of the Supreme Court of the United States, do hereby

certify that on the .... day of April, 1965, I served five

copies of this printed Petition upon Honorable H. M. Ray,

United States Attorney, Oxford, Mississippi, by mail in a

duly addressed envelope, postage prepaid.

Seek 6 ee, CEES OE SEARS STS

JAMES P. COLEMAN,

Attorney for Jack Marrin

Williamson.