# Petition for a Writ of Certiorari — Bell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1226%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 383 U.S. 947 ## Text ae ia Se Office-Supreme Court, U.S. COR rFrTLeEp ~ | JAN 28 1966 \ ee No. y S 1 JOHN F. DAVIS, CLERK an the ; Supreme Court of the United Stans : Ocroser TzRM, 1965. HENRY F. BELL, \ ? : Petitioner, °" 08. . UNITED STATES OF AMERICA, : Respondent. ae = . PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS ‘ FOR THE SIXTH CIRCUIT. C. Auten Hicu - $§tahlman Building Nashville, Tennessee 37201 . Epwarp B. Henstze, Jr. : Francis H. Monex v , - 120 West Madison Street Chicago, Illinois 60602 Wuium J. Harte 111 West Washington Street Chicago, Illinois 60602 Counsel for Petitioner The Scheffer Press, Inc_—ANdover 3-6850 , a an 6 INDEX : | sia Opinion Below -...........cscsessessees ae aes ata tal 2 MINI ncsscsetsbisscctississenivesencseansteibitctetipaiansdioganisamineladntatiiaias 2 NE Sr MINI sciccsnacesivskienbiciasasstdgudninntiaticsdianmaiasianaions a RIE: SEIS csiicinsscincihnsmnoienosndenlstesnuisslnntiniisiaenaacniiiesiabinaes 6 Statement of the i ORE teiche Pe a AIA 6 Reasons for Granting the Wit ............sscssssessseees saiaiaiiee 18 SINS, siscssescctassiscincivteiideibalsisescusductiasieiahliipisninnlnignabieidsekauea 28 Appendix A (Opinion of the Court Below) ................0. la Appendix B (Opinion of the Court Below on Petition EP TIIEINID scsciusncsiniistbseniesigutaieniisannbiniighieabaulandennidiiien 22a Appendix C (Opinion of the e Trial Court on Motion for BO HEME) cqueesnrsqieseinvinis Aiadwnehansesidiaaniitniinndenenanessuianniet 24a Appendix D (J udgments of the Court Below) .............. 29a Appendix E (Nashville Newspaper Publicity) .............. 31a Zs Appendix F (Statutes, Constitutions, Legislative Com- mittees and Authoritative Comments on the Crime of Gambling) ......... pila iiaininadiialeelaibes: aeiedladbabadaiialieaiaed 37a Appendix G (Statement of the Case and Reasons for ' Granting the Writ from the Petition for Writ of Certiorari in James R. Hoffa v. United States of America, Now Pending Before This Court) .............. 55a CrrTaTIons. CasEs: Beck v. Washington, 369 U.S. 541, 587 (1962) ................ 18 Delaney v. United States, 199. F.2d 107, 115 (1st Cir. TED shvrwisnishsiasslepsteduincieieaiahiscdiiainiiaabaeagtabiaaaicesaipianilicaaiabatinaes 18 Escobedo v. Illinois, 378 U.S. 478 (1964) sseccsssssssessen 25 ~~ é ». Nein ii : E | : 3 PAGE Estes v. Texas, 381 U.S. 532 (1965) ......sesesseess s iiamebdalioe 18 Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933, 934 (1891) .. 20 Fliashnick v. United States, 223 Fed. 736, 739 (2d Cir.. ee ee inh Siena 22 Gideon v. Wainwright, 372 U.S/335 (1963) TR ane OA 25 Glasser v. United States, 315 U.S. 60, 67 (1942) ........... . 21 Gold v. United States, 26 F. 2d }85, 186 (2d Cir. 1928) .. "99 Gordon v. United States, 344 U.S. 414, 420 (1953) .. 23 Hawkins v. United States, 358 U.S. 74, 79-80 (1958) . — Irvin v. Dowd, 366 U.S. 717, 729-30 (1961) 0.0... eee 18 Jones v. United States, 342 F. 2d 863, 868 (1964) ........24, 25 Kotteakos v. United States, 328 U.S. 750, 775 (1946) .. 22 Krulewitch v. United States, 336 U.S. 440, 444-45 CIID. casiinwiiepesesiiesaieecitanibianaalaiibdgsaieciocaaasideiniataaneeteaainalaanin o Marshall v. United States, 360. U.S. 310 (1959) ............ 18 Marvin v. Trout, 199 U.S. 212, 244 (1905) ...rsssccsssssesneeee 20 Massiah v. United States, 377 U.S. 201 (1964) ..........0... 25 Oliver v. United States, 335 F. 2d 724, 128 (D. . Cir. MUNIN ici siusicssd.dheaplitamanosnsiidssadasesniiaiuncajadebstinibsaasisucahaaseniinidesabini 2 Pittsburgh Plate Glass Co. v. United — 360 U.S. | RE CE - Sekscnidlestaindecatstilsepeiticancddaidininntilidnesisannannands 27 - Rex v. Rapp, 1 Dall. 9, 1 L. Eid. 7 (Pa. 1764) ..sssssssscson ‘17 San Fratello v. United States, 340 F.2d 560, 566 (5th. CAR TE) scirans cesenannadanetionnesissaieaniancsnnniactitecese wesseces 22 Shepherd v. Florida, 341 U.S. 50, 52 (1951) «0... 18 Sheppard v. Maxwell, No. 490, Oct. Term, 1965, 34 pk Rp BE: Ree en re aE 18 United States v. Edgerton, 80 Fed. 374 (D.C. Mont. EE: stlbiniass svssseescnsnnuecsecnnsnnnnneccccnscennnecssseggennsssessesssssnsseees ... 24 United States v. Lawn, 355 U.S. 339, 349 (1958) .......... 26. ¥ J iii PAGE United States v. Maloney, 262 F. 2d 535, 538 (2d Cir. | EE LANGA OEE 25 United States v. Pennix, 313 F. 24, 531 — Cir. 1963) ........ scanaiaasn Ce a eR Ie. ED 22 Pnited- States v. Scully, 225 F. 2d 113, 116 (2d Cir. Reni eae eee oa ConsTITUTIONAL PROVISIONS, STATUTES AND Rutzs: Fifth Amendment to ‘the Constitution of the United I cccisnesrccsnannadckieipnuriantinstanentiasoninenssnniianaiiovateintshats 22, 4, 25 ° Sixth Amendment to the Constitution of the United IE ack titsstiesettesencasnteceemereniecinnnnieinsit sessseesennenenncennnnnnes 2,5 me 18 U.8.0. 1508 .entrcssceseseuee sold edieschionaiasssstiemasionenl 146 ¢ ea, sa) | ae hy : D Be, Te aceasta nineitleencaccetennenenstavinnninnt aiaindinamniainen 20 BO TEC - TI seiciccecancectconievneneginnneeptscncnecnennnsnincinmmnnnnmainsion 16 Beate Cle), Fr. TE. Cte, FP ccceccccncncicssiccssncnsconssesens 6 — Rule 52(a), F. BR. Crim. Py ou... cseesssessssssesssessnnesneeees #6, 13, 21 Statutes collected in Appendix WP sitesi reossconoseoneyesnnsssonee 37a MISCELLANEOUS: | } Blackstone Commentaries *325-327. ....svssssssssusenfeeseeee , 25 — Note, Controling Press & Radio Influence on trials, 63 Harv. L. Rev. 840 (1950) .........ccccocccccsccccssscecrencses in 24 Am. Jur., Gaming and Prize Contests, sec. 3, p. 399... 20 \ s . \ tampering in the Test Fleet case was held by Judge Gray wherein evi- dence was presented. (D. A. 44a.) The Chattanooga trial began’ in mid-January, 1964, and lasted six and one-half ? - in weeks, to March 4, 1964, ending in the conviction of Hoffa and three co-defendants. They were sentenced on March 12, 1964. But of pertinent significance here is the publicity accompanying the trial of that case in the Nasliville news- papers. A chronological account by headline of the news- paper publicity from February 1, 1964, to April 4, 1964, is included in Appendix E of this brief. (Appendix E, 31a-36a). The actual articles appear as an exhibit to peti- tioner’s motion for a continuance. (D. A. 50a). As was the custom the trial was signified in the head- lines as the “Tamper Trial.” Virtually without exception, / @ minute account of the trial appeared each day on the front pages of both the Tennessean and Banner, the two Nashville dailies. These accounts included not only the evidence adduced in the trial, but argument of counsel. out of the presence of the jury, various offers of evidence, numerous hearings on the relevancy of evidence, rebukes by the trial court of defense counsel, etc. Petitioner’s case was included in this publicity. (Articles on Feb. 7 and Feb. 22, 1964.) The verdict of the jury of guilty against four of the defendants in those cases on March 4, 1964, was accompanied by an explosion of publicity in these newspapers. The Test Fleet trial (the subject of peti- tioner’s indictment and for which he was then awaiting trial) was described as “one of the greatest attacks on the jury system this country has ever known” and the convic- tion as a “beacon with the warning that no one may try to thwart” the integrity of the jury system with. impunity. (March 5—“Tennessean”.) Later the trial judge ordered an investigation into possible jury tampering in the Chat- tanooga case which was also given wide newspaper cover- age. Subsequent to the jury verdict, the press provided daily coverage for the post-trial action including the sen- tencing, new trial, appeal; ete. | ? adie Then followed the trial of Lawrence Medlin, whose case had not been transferred to Chattanooga. He had origi- | nally been one of the defendants in the Hoffa cases. His © trial was set for March 30, 1964, before Judge Wilson in Nashville and the case received the usual splash, both preliminary to and during the trial. In the meantime the . press was readying the public for petitioner’s trial with articles on March 10 that his was the next “tampering” trial and March 22 that the Government was bringing in the “Billie Sol” prosecutor to try appellant. Petitioner sought the only relief possible to him under the circum- stances, a motion for continuance, specifically stating the motion was not made for purposes of delay. (D. A. 51a.) The local press translated this into an attempt to “stall” the trial in an article on April 2, 1964. A verdict of guilty was returned against Medlin » on Friday, April 3, 1963, accompanied by front-page head- lines. Appellant’s motion for continuance was presented - for hearing the next day, Saturday, Apri] 4, 1964, and denied that day. Appellant was ordered to and proceeded to trial Monday morning, April 6, 1964. (D. A. 51a. N. The Court of Apgdeals concluded tliat the trial judén did not abuse his discretion in —— the motion for continu- ance. The Court noted: “It was for the benefit of Mr. Hoffa that he is charged with endeavoring to influence jurors. Under these circumstances, it is not apparent how he could be disassociated with Mr. Hoffa. At the minute he went on trial, the issue would be whether he was in- volved in the Hoffa trial of 1962. The defendant’s case could not be tried in a vacuum. How long should the trial court have continued the case? One month? Three months? Six months? A year?” (Appendix A, p. 15a) f \ i = a 2-4. The Double Standard of Evidentiary Rulings Favor- — ing The Government. | | The sole direct testimony to support the crime charged was by the government witness Nathan Bellamy who pur- portedly had a twenty-minute conversation with petitioner’ in a Nashville restaurant, sometime “in late October or early November.” The Court of Appeals in its decision stated the following as to his reliability: “His reliability as a witness might be subject to question but the government must take its witnesses where it finds them.” (Appendix In any event, during cross-examination of Bellamy, de- fense counsel attempted for impeachment purposes to question him regarding numerous and recent criminal con- victions arising out of his activities-as a notorious “num- ’ bers” racketeer. Upon ‘objection by the Government, the trial court refused to permit the examination and advised counsel that, for impeachment purposes, it would limit the examination of the witness, or any subsequent’ witness, to questions concerning convictidns for felonies only. (D. A. 79a.) : - In an offer of proof out of the hearing of the jury, defense counsel displayed to the Court. that Bellamy had been convicted as many as seventeen times. in the period ranging from 1949 to as recent as 1962. The convictions included vagrancy, loitering, operating a disorderly house, _ loitering around a disorderly house, gaming, keeping a gaming house, and violations of the State Lottery Law. (D. A. 79a-82a.) Bellamy admitted he headed a large policy organization and was one of the chief numbers men in Nashville with at least twenty agents. (R. 128.) While none of the seventeen criminal convictions included the terms “policy” or “nymbers”, they all were charges result- 5B \ _— ing from Bellamy’s “numbers” operations, With regard to violations of the State Lottery Law (which includes policy), Bellamy admitted he had been — and fined. (D. A. 79a, 81a.) The Government rested its case the ig Bellamy testi- fied, and the very next day, prior to petitionér’s taking the stand as a witness, defense counsel reminded the Court ,\ a, 2 — we go back. The Court then held this was not a convietion and whether “this applies to all these cases Was not made : clear by defense counsel.” Defense counsef on petition for rehearing pointed out to the Court that immediately after the gratuitous “cash bond” statement of Bellamy, he was asked if he was convicted and he said yes. (D, A. 81a.) The Court also noted in its opinion that Bellamy dmitted _ on cross-examination that he knew his numbers operation was in violation of state law. (Appendix IA, p. 7a-8a), As to petitioner’s 18-year-old conviction, the Court stated it involved moral turpitude and the fact that it occurred twenty years before went to the weight of the testimony not to its competence. (Appendix A, p. 8a) On petition for rehearing, the Court of Appeals stated that on further consideration no prejudice resulted to petitioner on the limitation of Bellamy’s ¢ross-examina- ‘tion, citing the harmless error rule. (Rule 52(a), Federal Rules Criminal Proeedure. ) (Appendix B, p. 23a) ‘ 6, The Grand Jury Selection. a he ~ The Special Grand Jury which indicted ostiieiain is the same Grand Jury which indicted James Hoffa andzhis e co-defendants. Petitioner moved to dismiss the indict- ment, charging that it was illegally and improperly im- paneled. By the time the motion was heard, the trial court had. disposed of the same motion in the Hoffa cases - which had alleged the same grounds supported by ‘sub- stantially the same affidavits. In order to save the time — of the court and counsel, an agreement was made adopting the same papers presented in the Hoffa edses, and the ~ court deaied the motion to dismiss. (D. A. 171la:178a.) In’ the Court of Appeals, petitioner made a sifnilar métion and wag granted leave to adopt portions of the brief and ~ —— references ‘i in United States v. Hoffa, et al., Nos. Ss . Ps ae ’ si ae A i. * pn. 15,876-79. This again was for the convenience of court and counsel since the same issue.based on identical facts was being passed on prior to the decision in the instant case. The Court of Appeals in the instant case followed its decision in the Hoffa cases and held the Grand Jury was properly selected and legally uence (Appendix ~ A. p. 19a) Petitioner in this Court has moved to adopt those por- tions of the Petition for Writ of Certiorari and appendix references thereto in James R. Hoffa v. United States of America, which relate to the. illegal and improper impanel- ling of the Grand Jury. For. the convenience of the Court, petitioner has included the statement of the case and the reasons for granting the writ from the Hoffa Petition in Appendix G, PP. 55a-66a. ‘6. Petitioner’ ‘ Constitutional Privileges in the Grand Jury Proceedings. On February 1, 1963, petitioner was ieee as a witness to appear before the grand jury investigating jury- ~ tampering which returned the indictment against him.. The record indicates that he appeared that day without counsel and was advised of his right to counsel and his right to refuse to answer any question. (D. A. 27a.) He was not apprised of the fact that he was an object of the investigation then being conducted. He then invoked his privilege under the Fifth Amendment during the first interrogation. He was directed to answér certain ques- tions and when he refused, he was taken by Government attorneys, still without counsel, before Judge Gray to invoke the court’s assistance in obtaining answers. The court was given a transcript of some 14 pages of appel- . lant’s testimony and informed of some questions appeent © had refused to answer. | 8 The questions concerned matters connected with offenses which later made up the tliree counts of the indictment. He was asked about his presence within Nashville on . certain dates; whether he knew Irwin Kahn and William .» B. Morgan (who testified as Government witnesses at the trial); and certain questions about the Maryland Farms and Nobel’s Cafe or the Brentwood ‘Cafe in Brentwood, — Tennessee. (Glen Noble, the proprietor of Traveler’s Rest Motel and Nobel’s Cafe which befders the.Maryland Farms, testified as a Government witness at the trial.) During the hearing before Judge Gray, petitioner ob- tained counsel for the first time: The tras script of grand jury testimony was reviewed by the court and petitioner was directed to answer certain questions seeking to determine whether he understood other questions where he pleaded the privilege. (D. A. 3la.) He was then questioned fur- ther by the grand jury and was ‘subsequently indicted. The Grand Jury was never instructed by the court that no adverse inference was to rise from aphellents pleas of the: privilege. The Court of Appeals held that the mere ‘nici of petitioner before the grand jury was not a violation of his constitutional rights; that the trial judge merely re- quired him to answer whether he understood certain ques- tions; that he was not prejudiced in any way by being subpoenaed; and that any adverse inference risimg from the failure of the judge to instruct the ) jury on the priv- ilege was untenable because there was sufficient direct - evidence to take the. case to the jury at trial. (Appendix A, p. 9a) 7. Failure to Permit Examination of Grand Jury Testi- mony. The morning of the commencement of the trial peti-. tioner moved for production of statements and reports to _— an $8 in prospective Government witnesses pursuant to the Jencks Act, Title 18 §3500, U.S.C. The trial court granted the motion with the production of statements to follow imme- diately the direct examination of the witnesses. At the same time he also moved to inspect the transcribed testi- mony before the Grand Jury of those witnesses used by the a ‘at the trial. (Rule 6(e), Federal Rules Criminal Procedure.) The court summarily denied the latter motion. (D. A. 54a.) The Court of Appeals held petitioner was not entitled to the transcript as a matter of right; that the made no showing that the ends of justice required it; that at best he was only entitled to request the trial judge to make an in camera inspection. and turn over any inconsistencies in the testimony of a ess. (Appendix A, p. lla). er REASONS FOR GRANTING THE WRIT. ¥ Deprivation of a Fair Trial—the trial of defendants seriatim in a sensationally publicized case in the same com- munity with but three days intervening the last conviction and his trial. Few would contest that the “jury tampering cases” rank among the most publicized and sensational cases ever reported. Even discarding the daily accounts carried 7 ‘nationally, few eases, if any, have received such extensive and intensive publicity for so long a period in a single community—Nashville, Tennessee—than have these cases. This was due not only to the fact that James Hoffa was a principal, but also to continuing episodes in the pre- trial stage of the proceedings which fed a hostile press. A review of these episodes reads like a dime novel: the original Test Fleet trial; the statement from Judge Miller that there’ was jury tampering, his. ordering an investi- gation to be conducted by a Special Grand Jury and then Sal . | his recusation; the Grand Jury inygstigation itself, with recurrent incidents such as vétitiogte’s confrontation with Judge Gray for pleading the privilege; ‘the subsequent indictments; the many hearings on pretrial motions; the “Osborn” incident resulting in the disbarment of Hoffa’s attorney (D. A. 68a.); the recusal of Judge Gray in the Hoffa cases (D. A. 44a); the transfer of the Hoffa cases té Chattanooga because of prejudicial publicity; the dis- barment of another attorney—Harry~Beard; the Chat- . tanooga trial for 614 weeks; the subsequent convictions, post-trial motions, sentencing, investigations and _Sub- sequent indictment of one O’Brien for jury tampering in the Chattanooga case; and finally the Medlin trial and conviction just three days before petitioner’s trial. | It was when this publicity had reached a crescendo and five other defendants had been convicted for the same crime less than a month earlier that petitioner was forced to trial. Since the earliest days of this country, it has been a simple principle founded on fundamental justice and fairness not to hurry a criminal proceeding so as to do injustice to a defendant: As the court stated in Rex v. Rapp, Pa., 1 Dall. 9, 1 L.Ed. 7 (Pa. 1764): ~ “In all cases whether criminal or civil, a trial shall not be hurried on, so as to do injustice to the defend- ant. Rex v. D’Eon, 3 Burr 1513.” do to The problem of balancing the right of a a fair trial and the freedom of the press to comment on matters of public interesf\has continuously plagued the courts.’ Petitioner submits that what was just a problem some 20 years ago has, with the scientific advance of com- municative media, reached a point where this balance of rights is now a major impediment to the proper admini- ‘¢ _ stration of justice ip this country. See Note, Controling Press & Radio Influence on Trials, 63 Harv. L. Rev. 840 ° (1950). No lengthy discussion need be made of this Court’s con- cern of an accused’s constitutional rights to a fair trial before an impartial jury in sensationally publicized cases. Cf. comments of Frankfurter, J., in Irvin v. Dowd, 366 U.S. 717, 729-30 (1961); and Jackson, J., in Shepherd v. Florida, 341 U.S. 50, 52 (1951); Estes v. Texas, 381_U.S. 532 (1965) ; Marshall v. United States, 360 U.S. 310 (1959). See Delaney v. United States, 199 F. 2d 107, 115 (1st Cir: 1952). See also Sheppard v. Mazwell, No. 490, October Term/ wherein the, Court recently granted certiorari. Cf. 34 U.S. Law Week 3171. The Court of pone recognized petitioner’s ‘Sian _ in being swept. up in the prejudicial publicity accompany- ing Hoffa, stating that “it is not apparent liow he could be disassociated with Mr. Hoffa’’ since it was ‘‘for the benefit of Mr. Hoffa that he is charged with endeavoring to influence jurors.” The Court asked how long the case should have been continued, ‘‘One month? Three months? Six months? A year.” But petitioner submits this is no answer. The trial court had the affirmative duty to do everything ‘“‘humanly possible” to insure fair treatment to petitioner. See Beck v. Washington, 369 U.S. 541, 587 (1962), Douglas, J., dissenting. In any event, everyone would agree that something more than three days was humanly possible. It would not have overly disrupted the trial court’s schedule to put off the trial for a reasonable time. The Government understandably was pressing for trial. . The struggle over the minds ‘of jurors cannot be refereed in the voir dire as the Court of Appeals suggests. The extensive saturation of the community mind for so / wen € long a period renders the voir dire useless in reaching impartiality. Few jurors would recognize a prejudice built slowly op this continuous adverse publicity and fewer still could brush side “preconceived” opinions al- though they answered honestly in the affirmative in the voir dire. Thus the circle is complete. Although charged with an attempt to pervert the jury\system; petitioner prays for the issuance of this Writ to preserve it. The tampering in this case occurred not in the Test Fleet trial, but in peti- tioner’s being forced to trial when the prejudicial publicity _ had reached its highest peak. Petitioner’s motion for con- tinuance of the trial date for a reasonable period of time should have been granted. 2-4. Deprivation of Fair Trial. The trial oii double standard favoring the government on impeachment in a close case denied petitioner a fair trial and was not harm- less error. \ Everyone admits that the trial judge excluded impeach- ment evidence against the government’s chief witness and permitted the impeachment of petitioner by the applica- tion of contradictory rulings. A double standard was applied favoring the government and this fact stands un- contradicted. Petitioner requested not only what the law allows for impeachment, but at the very minimum only what was given to to the government. This case presents to this Court the question whether a defendant is entitled to at least equal treatment in the trial of a aaa publicized case — close on its facts. : a) Bellamy’s misdemeanors involved moral turpitude. The Court of Appeals recognized the trial court applied an incorrect rule in excluding evidence of the witness Bellamy’s misdemeanors. The rule is not limited to felonies — 20 — only but includes crimes involving moral turpitude. The Court of Appeals however ruled Bellamy’s convictions in operating his numbers racket did not involve moral turpitude. . This ruling is contrary to the earliest decisions in this Court [see Marvin v. Trout,° 199 U.S. 212, 224 (1905) (gambling is a vice to be suppressed ‘in the interest of public morals) ], state courts [see Ex parte Tutile, 91 Cal. 589, 27 Pac. 933, 934 (1891)], general treatises [24 Am. _Jur., Gaming and Prize Contests, sec. 3, p. 399], and the conclusions of legislative investigative committees, both congressional state [see Appendix F., pp. 41a-49a].’ Laan under\ federal law, the mere mailing of policy ips subjects a person to the same punishment defendant now faces, 5 years imprisonment. Title 18, sec. 1302, U.S.C. At least half the states single out this crime as a felony; _ several provide for punishment similar to defendant’s punishment; and one (Virginia) stipulates a policy oper- ator can receive 10 years confinement and a fine. See Appendix F, pp. 37a-40a. Every authoritative commentator, beginning with -At- - torney General (now Senator) Robert Kennedy, through Adlai Stevenson, Edgar Hoover, Senator Kenneth Keat- ing, ete. insist that policy is not only dishonest, one hundred per cent fraudulent, ridden with bribery, cor- ruption, mob activity, murder, etc.; but to a man they decry the failure of the law enforcement agencies and the courts to accept and realize the intrinsic evil in the crime. See Appendix F, pp. 49a-54a. : The Court of Appeals is the first court of appellate jurisdiction to petitioner’s knowledge to reduce this vicious ? Petitioner has collected authorities on the nature of the crime of gambling too voluminous to be placed in the body of the Petition. He has inserted them in Appendix F attached to the petition and made a part hereof. . AS > —) — crime to the importance of a traffic Violation. The decision is not only erroneous but completely ignores the signifi- ance of the decision in the fight against organized crime in this country. The decision presents a question of sub- stantial importance to petitioner’s constitutional rights _ and to law enforcement generally. * b) The error cannot be termed harmless. Apparently recognizing the tenuousness of its original decision on the impeachment issue, the Court of Appeals turned to the “harmless” error rule in its supplemental opinion denying petitioner’s petition for rehearing without withdrawing or amending its original decision. (Appendix B, p. 23a). But resort to this rule is no answer in the instant case. It cannot be disputed that this case was close, conviction resting on the word of one man, Nathan Bellamy. His credibility as against petitioner’s was the sole issue in the case. “In all cases, the constitutional safeguards are to be jealously preserved for the benefit of the accused, but especially is this true where the scales of justice may _ be delicately poised between guilt and innocence. Then error, which under some circumstances would not be ground for reversal, cannot be brushed aside as imma- terial, since there is a real chance that it might have pro- vided the slight impetus which swung the scales toward guilt.” Glasser v. United States, 315 US. 60, 67. (1942). Especially is this true here where the government’s only incriminating witness, Nathan Bellamy, in his admittedly continuous operation of the numbers racket needed the government’s sanction to stay in business by having a government gambling stamp. - ‘ This Court and other courts have continually resisted the application of Rule 52(a) in similar close cases where the error could only have had a substantial influence on — 22 — the outcome. See Kotteakos v. United States, 328 U. S. 750, 775 (1946); Krulewitch v. United States, 336 U.S. 440, 444- 45 (1949); Hawkins v. United States, 358,U.S. 74, 79-80 (1958) ; San Fratello v. United States, 340 F. 2d 560, 566 (5th\Cir. 1965); Gold v. Umted States, 26 F. 2d 185, 186 . (2d Cir. 1928); Fliashnick v. United States, 223 F. 736, 739 (2d Cir. 1915). Even in cases where the government’s evidence was substantial, there is grave hesitancy of courts to term error harmless. The court in Oliver v. United States, 335 F. 2d 724, 728 (D.C. Cir. 1964), refused to do so where the defendants themselves denied the veracity of incrimi- nating statements in a document erroneously admitted into evidence. But of special significance here is the unswerving rule in prior decisions in this Court in close cases which turn on the credibility of witnesses giving conflicting testimony. Gordon v. United States, 344 U.S. 414, 420 (1953), holds that exclusion of impeaching evidence against the key government witness could not be harmless. “Except the testimony of this witness be believed, conviction probably could not have been had.” The Court further held the “harmless error” rule “cannot be expanded to justify a curtailment which keeps from the jury relevant and im- portant facts bearing on the trustworthiness of crucial testimony.’’ 344 U.S. at 423. Krulewitch v. United States, 336 U. S. 440, 445 (1949), discarded the harmless error rule where “as to all vital phases ... . , the jury ‘was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury’s task was difficult at best.” See also Hawkins v. United States, 358 US. 74, 80 (1958) ; United States v. Penmiz, 313 F. 2d 524, 531 (4th Cir. 1963). — 23 — inally, if there’ were any question of the harmlessness of the error, it ended with the trial court’s instruction that the testimony of a witness can be impeached by show- ing prier condition of a crime involving moral turpitude and that the juryconsider the conviction only “in deter- mining the credibility of a witness.” The jury heard but one witness with a conviction—petitioner, Bellamy’s. con- victions having been improperly excluded. Surely the Constitution provides defendants with at least equal treatment in trials. $ 5. The Grand Jury Selection. i For the convenience of both this Court and counsel, petitioner in this Court has moved to adopt those portions of the Reasons for Granting the Writ from the Petition in James R. Hoffa v. United States relative to the illegal and improper impanelling of the Grand Jury. -These are identical issues arising from identical facts and petitioner was given leave to and did adopt the argument and appen- dix references, thereto in the, Court below. 6.. Deprivation of Constitutional Rights in the Grand Jury Proceeding. ~ : There can be no question that the Government had marked petitioner for indictment before ha was subpoenaed to testify before the Grand Jury. At the hearing he was interrogated about persons who later testified against him at the trial. Kahn and the juror Morgan were the chief Government witnesses on the first two counts in the indictment. which subsequently issued (Record 212-237, 258-286). Benedict was subpoenaed by the Government but did not testify. The other Morgan was labeled appel- lant’s “co-conspirator” in the first count. The fact that petitioner was at the Brentwood Cafe or Nobel’s Cafe . ? —_— om near: the Maryland Farms with a man named Jolley was part of the Government’s evidence under Count III fér which petitioner was convicted. (R. 239-245). The’ fore- ' going demonstrates: that the Government had completed . its case against appellant, that he was a “de facto” de- | fendant ‘although not yet indicted, and that the Govern- ‘ment compelled him to appear before the grand jury, purportedly as a witness, to gain incriminating evidence from his own lips or to turn the jury from him in the event he remained silent. ¢ These facts present important questions of the propri- ety of the practice of Government attorneys before grand juries and whether a defendant is entitled to the same Constitutional rights and privileges in thegrand jury proceedings as he is afforded after the indictment is . _ returned. These questions have not heretofore been de- cided by this Court. zh Lower courts ‘have saitaiaiiedly condemned the practice © of subpoenaing prospective defendants as witnesses before the grand jury for interrogation. United States v. Scully, 225 F. 2d 113, 116 (24 Cir. 1955) ; United States v. _Edger- ton, 80 Fed. 374 (D.C. Mont. 1897). Compelling petitioner. to invoke the constitutional ° privilege could only have prejudiced him in the eyes of the grand jurors. See _ Edgerton, J., in Jones v..United States, 342 F. 2d 863, 868 . (1964). Parading him before the grand jury without benefit of counsel was a violation of his” rights under the Sixth Amendment. - at Moreover, the action of the Government in bringing - _ petitioner before the District ‘Court and using the power “of the court to.compel him to answer questions served to compound the violation. As a prospective defendant he was directed to answer questions by a district judge before the eyes of the grand jurors. At this point anything 4 2 9° & &, * gl resembling his protection under the Fifth Amendnient: disappeared. Massiah v. United States, 377 U.S. 201 (1964); Escobedo v. Illinois, 378 U.S. 478 (1964); and Gideon v. Wainwright,’ 372 U.S. 335 (1963); dictate that the defendant be protected from such misust of Govern- ment power: | PsGnis ¢ _ Finally the trial court after directing petitioner’ to ‘answer the questions did not instruct the Grand Jury that his refusal to answer and the order ‘of. court compelling him to answér, could: not be an inference of evidence against him. Whether such an instruction could have repaired the harm already inflicted is extremely doubtful, but it would at least have provided: petitioner with some semblance of protection. Petitioner respectfully submits that this Court, with its ; supervisory powers, should not sanction this improper action of the Government. Their conduct in the instant - ‘cause resembles he ina peine forte et dure described 1/ in Blackstone. Commentaries *325-327. The Government must pay more than mere lip service=to the privilege against self-incrimination or suffer the reversal ofa con- viction. See United States v. Maloney, 262 F. 2d 535; 538 (2d Cir. 1959). ° | | The Court of Appeals held, in effect; that petitioner would not have been prejudiced by the government’s. action because he pleaded the privilege to all questions ° and those that the court directed him to answer were - “whether we agin the questions propounded: More- over since there was sufficient evidence to convict, there was sufficient evidence to indict.. While petitioner cannot ‘accept the Court’s conclusion of an absence of prejudice, see Edgerton, J.,\in Jones v. United States, 342 F. 2d 863, 868 (1964), even if he were to assume it, he submits the. - Court’s ‘analysis is fundamentally unsound. The Fifth . P) | | ‘eas os s ‘ > ” x « i. IF : ae G>. e * . ‘ Ay. e ‘ 7 ? 4 - , . Pa ie 26 — Amendment cgmmands the return of an indictment of a grand jury preparatory to a person’s being “held to an- swer”,.and the Amendment further commands that the grand jury be “legally constituted and unbiased.” See Lawn v. United States, 355 U.S. 339, 349 (1958). The Court of © Appeals cannot relate the evidence adduced at trial, slim as it is, back to the grand jury proceeding to overcome the bias of the grand. jury and the improper conduct of government counsel. The instant facts present a substantial question Wictat- ing the application of this Court’s supervisory powers in ’ an area where heretofore government counsel have had open season on an accused’s constitutional rights 1 in grand jury proceedings. 7. Fair Trial—Inspection of Bellamy’ s Transcribed Tes- timony Before the Grand Jury. It is abundantly clear that the crucial issue in this case was the credibility of the government’s witness, Bellamy. His credibility was an obvious issue before the trial as he was specifically named in the indictment. Therefore his prior statements of what had occurred were crucial to the petitioner’s defense during the trial of this cause. His timely motion for inspection of witness’ grand,jury testi- mony coupled with his motion for “Jencks Act” state- - “ments were made. the day the trial began. The statements were provided but the grand jury. testimony was not. The Court of Appeals ‘insists that petitioner was not . entitled to a transcript “as a-matter of right”, and only when “as showing was made that the ends of justice required it.” It held no such showing was made. Petitioner suggests that the primary duty of the trial court is to see that justice is done. Since the.grand jury is an arm of the judiciaf branth of government, to require © am OF om limited disclosure to aid the accused is simply allowing the court’s own records to be utilized in the interest of justice. Therefore, from this point of view, the simple issue is whether the trial court should. withhold any of its own records. which an accused person believe? will be help- ful to him. When viewed in this light, the answer obviously is that a federal court should never deny this requested assistance to an accused. _ But even assuming the necessity of the “showing of particularized need” the Court of Appeals requires, ex- cept by clairvoyance petitioner cannot possibly show the particularized need suggested until he actually sees the minutes. The Court relied on Pittsburgh Plate Glass Co. v. United ; States, 360 U.S. 395 (1959). But as the dissent (composed .-. of Justices Brennan, Black, Douglas and the Chief Jus- tice) pointed out, “It is too late in the day to say... that the government may insist upon Grand Jury secrecy, even when the possible prejudice to the accused in a criminal case is crystal clear, and none of the reasons justifying secrecy is present.” 360 U.S. at 402 Petitioner submits that while the reasons for the veil . of secrecy of the Grand Jury testimony and its proceed- ings hold while the Grand Jury is in existence, prior to indictment and even prior to discharge ofthe jury, those reasons weakén at the time the indictment’ is issued and certainly disappear’ during the actual trial of the defend- ant. Protection of the witness is no longer in issue because he testifies at the trial. 7 This question is ripe for re-evaluation by this Court so that an accused, such as petitioner, is provided with at least equal&knowledge of his accuser’s prior statements as is possessed by government counsel. s a aaah natet ceept mele ~ NELLA ARDELL IPR ELE EAI IPE SL MELLEL RL LE LE LADIES BEV APLC LAE SE Sent sits id CONCLUSION. For all of the foregoing reasons, petitioner respectfully submits the petition should be granted. Respectfully submitted, C. ALLEN HicH Stahlman Building Nashville, Tennessee 37201 Epwarp B. HENsLEE, JR. Francis H. Monex 120 West Madison Street Chicago, Illinois 60602 Wruiam J. Harte 111 West Washington Street '° Chicago, Illinois 60602 Counsel for Petitioner | Tt. ED JAN 28 1966 HN F. DAVIS, CLERK an the Supreme Court of the Gnited States Ocroser Term, 1965. by . HENRY F. BELL, Petitioner, ‘ vs. UNITED STATES OF’ AMERICA, Respondent. —— [ ENDICES A -G TO eas ae PETITION FOR A WRIT‘OF CERTIORARI ° TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. C. ‘Artten: Hicn Stahlman Building Nashville, Tennessee 37201 ° Epwarp B. HENsLeEE, JR. Francis H. Monex 120 West Madison Street ’ Chicago, [Illinois 60602 Wuium J. Harre 111 West Washington Street Chicago, Illinois 60602 Counsel for Petitioner The Scheffer Press, Inc—ANdover 3-6850 = IN THE SUPREME COURT OF THE UNITED STATES AOcToBER TERM, 1965. No. HENRY F. BELL, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. APPENDICES A-G.TO PETITION FOR A WRIT OF CERTIORARI - TO THE UNITED STATES COURT OF APPEALS ; mS ROR THE SIXTH CIRCUIT. \ ¢ ° samba 9 Preparatory Statement. The following are Appendices A-G made part of peti- tioner’s Petition for Writ of Certiorari. \ > td APPENDIX A | Nos. 15968-16231. UNITED STATES COURT OF APPEALS = ,; For The Sixth Circuit — 7 1 Unirep States or AMERICA, - — ) On Appeal from the Plaintiff-Appellee,| United States Dis- | Potent trict Court for the ~ : = > Middle District of ” _ Henry F. Bet, Tennessee, Nash- @ Defendant-Appellant. } ville ‘Division. t et Decided October 14, 1965. PF ss Before: PuiLus and Epwarps, Circuit Judges, and Ceci, Senior Circuit Judge. . ; Cecit, Senior Cirdhit-Fadge. This cause is on appeal - from a judgment of conviction in the United States Dis- trict Court for the Middle District of Tennessee. Henry F. Bell,- defendant-appellant, referred to herein as de- -.fendant, was found guilty by a jury on the third count _ of a three-count indictment. Count three’ charged that he corruptly endeavored to obstruct and impede the ad- *“The Grand Jars further charges: That in or about the months of October and November 1962, in the Middle District of Tennessee, Nashville Division, HENRY F. BEEL, the defendant herein, did unlawfully, knowingly, wilfiily, and corruptly - ‘endeavor to influence, obstruct, and impede the due administration of justice in the trial of United States v. James R. Hoffa and sane Bs Car- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1226%3A1. Public record. Not legal advice.