Petition for Writ of Certiorari — Henson v. United States

Supreme Court brief1966

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JOHN - K

_ SUPREME COURT OF THE UNITED STATES

‘+ GEORGE WILLIAM HENSON - - . Petitioner

Versus : vi es : |

\UNITED STATES OF AMERICA - Respondent © ~~ =

Gs _ PETITION FOR A WRIT-OF CERTIORARI TO :

THE UNITED STATES COURT OF APPEALS —— |

: ‘FOR THE SIXTH CIRCUIT Se 7

ie -. | RICHARD E. VIMONT

____139 Market Street -

Lexington, Kentucky -

— for Petitioner

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OPINIONS-BELOW 2152 oe nc ee

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PUBIBDIOTION 8). 05.) oso htreretevane 8

QUESTIONS PRESENTED oe oe 288 nee rr

‘Consritiytiows1 PROVISIONS, TREA. ~ °°.

TIES, ‘STATUTES, ORDINANCES OR = |. 6,

“REGULATIONS INVOLVED .:......... 840-2 =

samen OF THE, CASE. PET are Or 5 ene eso:

REASONS FOR GRANTING THE WRIT.. Tat parc eek

CONCLUSIONS . ators oo ere Mend

“APPENDIX Sibel oe en

y eh.

CASES:

Dunbar vs.

ited States, 156 U. 8. 185.107 12°

-Holgram.¥s. United States, 217 U. 8. 509... -O 8

Bihn'vs. United States, 328 U:. mo

- Rogers: vs. United States, 334 F.2d 83 pets ec.

United States ws Beasitio: 216 F. 2d 877. ee a.

‘Weiler vx United States, 323 U. 8. 606... 11

M orissetti Vs. United States, 349 U. S. 85. ee

~ Smith vs. United States, 230 F. 2a 935:. eagee Oe

_Lazarov vs. United States, 225 F. 2d a

‘ 5

: a |

“A e “IN THE,

a SUPE 0 COURT OF THE wm STATES

tyes October Term, 1066 :

No. a

- -Grorce WintiaM Henson - - -. -- Petitioner... °

Unrrep Stares or Ammprica’ -- - - Respondent .

| PETITION FOR A-WRIT OF CERTIORARI TO |

-THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

action prosecuted in the United States District Court,

Eastern District of Kentucky at London, and ‘appealed

to the United States Court..of Appeals for the Sixth

een “Circuit, prays that.a Writ.of Certiorari issue" review

the judgment of the United States District @o6urt for’ ..

the Eastern District of Kentucky entered. in this

- aetion and to review the judgment of the United

States Court of Appeals the Sixth Circuit entered,

on ai 30, 1966.

plage _ OPINIONS acai ae

The United States District Court for the Eastern: S

District of Kentucky rendered no opinion. The opin-

ion of the United’ States Court of Appeals for the | :

Sixth Cirouit’i is not eT at the. time of the writing. ie

Geticee William ‘Freution, defendant in a bball ae

ee ae

‘ +

Or. +

Rais this petition.’ ag copy of said opinion ‘shes from

is: appended hereto on Pages. 19-23, ° The mandate of

the United States . ni of Appeals f for the Sixth ie

: Circuit has, not yet issued. : |

: | a“ i JURISDICTION’

; ‘The Opinion of the United States Court of. i

peals for the Sixth Circuit.was rendered on. the date :

mentioned above and the mandate has not yet issued.

- The petitioner has been granted stay of the man-

date pending this petition for’ Writ of Certiorari to —

: this Court and it is expected that the mandate will

a issue on October 23, 1966. This petition is, therefore, ;. ae :

- filed within the. thirty (30) days prescribed by Rule.

ee of the Rules ofthe United States Supreme Court.. §

. ‘he jurisdiction of this Court is invoked under A

Title 28, U. 8. C. Section 1254 ee A):

"QUESTIONS PRESENTED

ee ae Satay

MAY DEFENDANT ae CONVICTED BY °

-THE TESTIMONY. OF AN ADMITTED AC-

COMPLICE WITHOUT CORROBORATING :

EVIDENCE. "

: ea Ay BSS

_- DID THE TRIAL COURT ERR IN REFUS-

. ING TO PERMIT THE PETITIONER TO

INTRODUCE .LETFERS RECEIVED FROM .

ONE OF RESPONDENT’S WITNESSES IN

RELATING TO THE EVENTS ALLEGED IN - |

‘THE INDICTMENT. 7

| WHETHER THE TRIAL COURT ERRED IN

’ Ts FAILURE TO PROPERLY INSTRUCT

|. THE ‘JURY BY VIRTUE OF -THE RAMB-

LING AND CONFUSING LANGUAGE AND

ITS EVIDENT FAILURE TO PROVIDE >

_ SUFFICIENT GUIDELINES. DESIGNED TO

+ PRODUCE A COMPETENT VERDICT. |

Iv, i ee

os WHETHER THE TRIAL COURT ERRED IN

- . RESUBMITTING THIS CASE TO.THE —.

-: “JURY,;A SECOND TIME AFTER THE JURY®. ~

; HAD RENDERED THEIR VERDICT. : ee

Ups

af CONSTITUTIONAL PROVISIONS, TREATIES, 2

| INVOLVED

i8 US.C. aise Cae Pe Aone BIRT 3s Rte

Section 371.. CON SPIRACY TO. COMMIT OF- -—

FENSE OR TO snd aioe UNITED

STATES. » < ne

; ote two or more ‘persons conspire either to com-

. mnit any, offense: against the United States, or to

_\. defraud the United States, or any agency thereof :

.. ‘in. any manner or for any purpose, and one or

more of such persons do any act to effect thé object

' of the conspiracy, each shall -be fined not more

-, than $10,000.00 or a not more than five.‘ -

(5) years, or both. . ;

Tf; “however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor . »

‘ only, the punishment for ‘suth conspiracy | shall. *

», not exceed the maximum penton Provined? for ;

-—... sueh misdemeanor. "

Tune 25, 1948, e. 645, 62 Stat. 701.5

" STATUTES, eT OR REGULATIONS - |

Ses 742. DEALING IN COUNTERFEIT. OB-

ree LIGATIONS OR SECURITIES.

‘is Whoever: buys, sells, exchanges, transfers, -re-

eves, or delivers any. false, forged, counterfeited,

r\altered obligations or other security of the. .

United States, with the intent that the same be

“passed published, or used as true and genuine,

_»» Shall besfinéd not.more than $5,000.00 or impris-

~oned not more thah ten (10) years, or both. mae

a - Ture 26, 1948, c. Sass 62 Stat. 705.

ol ?

| “THE GRAND JURY CHARGES:

STATEMENT OF THE CASE

eg The petitioner, "George William Henson, along .

: with Charles V. Wheeler and. Harold Bruce Staton,

. Was jointly indicted by. a Federal Grand Jury in a

. four-count indictment at the J anuary 1965 Session at —

Lexington, Kentucky. Count No. 3 was later dis-

. Inissed as’ it. pertained to this petitioner and Count: .

: No. 4 of the indictment made no chafge against this*

'” petitioner. Counts No. 1 and 2, insofar as they are .

ila to this petition; alleged as follows: .

et Count 1 sy

That from $n or ‘about the 23rd tay of idciotinnber 3’

. 1964 up, to and including the fifth day of Novem-

. ‘ber,1964,-in the Eastern District of Kentucky, the -

‘defendants, George William Henson, Charles V.

Wheeler, and Harold: “Bruce Staton, did willfully

and. knowingly combine, corispire, confederate and

, agree together and with e ch other to commit an

Offense against the United’ States, ‘that is, to un-

’ lawfully and with intent to defraud, possess, pass,

. uttei and sell, and attempt to pass, utter. and sell .

- a quantity of falsely made forged and counter- -

+. feited obligations of the United States consisting

2 of counterfeit currency m “denominations of $10

Title 18, U.S. Code. /

SE ie * Count 2 ok

Se THE GRAND JURY FURTHER CHARGES:

and $20, in’ violatic

At the times hereinafter mentionéd, the de-

_fendants committed the following Avert acts in’

furtherance of said conspire

_, objects ereof:,:

1. Qn or about.the ‘went thin yey of Sep-

"tember 1984: in the Eastern District of Kentucky,

the defendants, -George William Henson and.

Charles V. Wheeler contacted. Dave Burton, pro-

prietor of the East 80 Wrecking Company, Som-

erset, Kentucky, at his place of business and ex- °»

hibited to him aNarge quantity of counterfeit, $107”

* $20, and $100 notes. Defendant George William

‘Henson gave Dave Burtor two (2) sample coun-

. terféit $10 notes and, advised him that if he could.

secure a buyer for.$25,000 in the counterfeit notes

_ for $11,000 he w8uld’ ‘pay him a commission of

$1,000 for his efforts. . eee :

2: On’ or about the fourteenth ‘day of Dikeher, :

1964, in the Eastern District of Kentucky, defen--

-dant George William Henson’ again contacted

Dave Burton to ascertain if he had found a a aad

for the acacia: notes. .

*¢@

That on or aboutdéhe’ o3r ‘day of September,

vi 1964, at Somerset, Pulaski. County; i in the — |

_ District of Kentucky,

GEORGE WILLIAM HENSON, and

‘CHARLES, V. WHEELER

with intent to defraud, did possess, and Tied in

: possession a large quantity of counterfeited obliga- «

_ tions .of the United States, in eno of

$10. 00, = 00 and _— 00 —:

oe .

+ tlle

. > .

Ns eiatialelielicecaatieds iiaiiaili eet aia

Ay 3

° 6 = =

“ The case was transferred to Landon’. ‘kendy

and the trial was held on June 7 through dl, 1965.

ps The only evidence connecting this petitioner with

' the incidents’ alleged iri the indictment is the testimony,

of Dave Burton, who runs a wrecking:yard in ‘Somer-

set, Kentucky. (T.R.. 24-80). ‘Burton testified, that .

_ this petitioner and one Charles Virgil -Wheeler came

to his place of business on September 23, 1964, and

gave him two (2) $10 counterfeit bills and offered to ~

‘sell him $25,000 of this counterfeit money for $11,000.

Burton was to receive a commission of $1,000 for ar-/:

ranging the sale. Burton admits that he took the money |

and that he agreed to find a buyer for same. Burton

even admits that he did find such a buyer. (T.R. 50-

51). Later, ‘Burton “6 ‘got. scared”’, took the two $10

‘ - pills to the Pulaski County Sheriff at Somerset, Ken- °

tucky. . No other. witness testified that; petitioner eon-

tacted Burton or that in fact petitioner was ever in

Somerset, Kentucky. Henson denies having seen Bur-

ton and having been in Somerset, ‘Kentucky. (T.R.

. 425-426). The co-defendant Wheeler .also ‘testified

that he had never been in Somerset, Kentucky with

Henson. (T.R. 476-544). : ¢

Petitioner attempted to introduce into iden

two (2) letters. postmarked and. mailed in: Somerset,

Kentucky and addressed to him in-care of the Gables

_ Motel at. Lefington, Kentucky. It had been estab-. -

- ‘lished that petitioner resided at the Gables Motel. One.

: cof these letters’ was postmarked November 30, 1964,

and the other March 29, 1965. Each of these letters -

: ; was on the viPmi-et Mr, Burin’ wrecking -com-

pany in Somerset, Kentucky, with -Burton’s name -

os ;

appearing thereon ; they were each senbuneitéil: in

- Somerset,. Kentucky, and contained information relat-. ©

_ing to the events alleged in the indictment. Never-. —

theless, the Court refused to permit petitioner to intro--

- duce’ these letters*into evidence onhis behalf.

| The Court gave the jury long and complicated

instructions which required 27 pages of the record in.

. the transcription. (T.R. 691-719). The jury, after less

than two (2) hours of deliberation, returned a verdict’

. which indiéates the confusion among the members of

the jury. The initial verdict convicted the petitioner

- only of Overt Act 1, undér Count 1 of the indictment.

(TE. 719-720). The Court attempted to clarify the

instructions and the jury again retired to return min-

utes later with a verdict’ convicting tlie petitioner

under Counts 1 and 2 of the indictment. (T.R. 725).

' REASONS FOR GRANTING THE WRIT. -

1, DEFENDANT SHOULD NOT BE CONVICTED BY THE

TESTIMONY OF AN ADMITTED ACCOMPLICE WITH- i

Eee out CORROBORATING EVIDENCE. ,»>\ .. -

This Court has long recognized the necessity for

-\ corroborating ‘the testimony of an accomplice by inde-

pendent evidence.. In Dunbar vs. United States, 156

U.S. 185, this Court stated at page 200 that “as to

- certain counts, there could be no conviction because as

_. to them the testimony was only that of an accomplice

Holgram vs. United States, 217 U.S. 509, to reverse .

- the judgment ofthe lower Court for failure to givea -

tion of the testimony of an accomplice because the in-

and uncorroborated.”’ While this Court refused in om a

prepared instruction ‘for the necessity for corrobora-

; e

struction assumed the witness was an acoBmplice, a

conclusion that: was controverted, it did say. ‘at page

- 524 that:

- Itis ciesaonlialy the better sipideiss ‘dee outta to .

*. caution juries against too-mucli reliance tipon the

. testimony of accomplices and to require corrob-

orating testimony giving credence to them. we

‘This Court approved the ruling of the lower Ogurt'

in Bihn’ vs. Umted States, 328 U.S. 633 that statements

made out of court, while admissible against the declar- |

-. ant, are not admissible to implicate an alleged co-

_. conspirator.

_ The lower Federal Gvarts have ‘pesognised ‘this .

mandate and. have required corroborating evidence -for

testimony ofan accomplices In the.Fifth Circuit, the

“sCourt said in Rogers vs. United-States, 334. F. 2d 83

at page 86, that ‘Statements by one conspirator are

permitted { be received against: another if made dur- —

ing pendente of the eonspiracy and if there e is inde-.

pendent evidence of the existence-of the conspiracy |

~and of the objecting party’ ~ participation i init.”

The Third Circuit expressed its view in. United

Wipeitee oe Rossello, 216 F. 2d 877 at page 880 when it

held = 1

. Declarations of a co-Gonspirator are not eiade: ;

_ sible to establish that another defendant has be- ." ~

‘come a member of the conspiracy, sich declara-:

tions are admissible to establish the nature of the

confederation which the direct’ evidence has shown = Ste

_ that a defendant has joined.

The: Appellant, Henson, contends (1) that his

conviction. was based ,solely on the testimony of an °

accomyplice. which was uncorroborated.. by any. direct |

gues

Or independent evidence aii: (2). that the Trial Court

"misled the jury by: its instruction on this point. .

The first witness for the United States was David

Burton. . The Appellant, Henson, contends that Bur-

ton was. an accomplice at the time of the alleged con-

qection ‘with, Appellant, Henson, and that his testi-

mony incriminating the Appellanit, Henson, concerned °

the period before Burton “got seared” (T.R. 52) and

went to the Sheriff. This i is demonstrated by the testi-

mony of- Burton. en cross-examination (T.R. 50-51) :

Q. 3. Do you figure “that George (Henson)

Q.4.

‘hot money? .

thought you would help him handle some —

Yeah, that’s: what I figured. :

‘And you were. inélined to do so, weren't ~

9 you? Se cae ;

(see

ae At the present time I was.

—Q. 5. And when you claim that these first two -

$10 bills were left with you, you really

intended to help pass this counterfeit

money, didn’t you, knowing that. it was :

counterfeit money?

That’s right.

. And on up to the third time they came

over there you were still go ong | ra

this deal of trying to find a market/for

this money, weren t you?

Yeah, I found a market, all right,

. You had actually gone out and found: a

' market for the counterfeit ities hadn't 3

- you?

Yes, Llad. - a | : se ig | poten eattaira

> e

—o

ios P e invite

4 = :

> .

[7 a

L =A, a ee

os cam oe = 3 ee

-@ 8, ‘And you were expecting to. get some e-profit:

out ‘of it, weren’t you? ~~. i 2

AL That’s right, at the time I was. :

This clear by Burton’ $ teithiniciiny that he was in-

- volved in the conspiraciand was a co-conspirator and -

‘an accomplice. Since Burtoy_was the first witness for ©

"thé Appéllee, United States, it would have been.impos- —

‘e@ . sible for any- independent or ‘direct evidence te have OC

. . established the ‘conspiracy bef a Getionor. |

_ was-his ‘testimony pic ia A alone that was’ -

_ usedé>to establish the conspiracy insofar as this Appel-

lant is concerned. Yet Burton by his own testimony,

‘* supra, admits he was a voluntary member. Appellant,

Henson, waited to see if this testimony would be cor-

robérated and when at the end of Appellee’s evidence

_At had not been, he: moved for ’a directed verdict of.

.' aequittal on the conspiracy, count on the grounds that

there was no competent evidence to show that he had

entered into any conspiracy (T.R. 376) and a directed

verdict of acquittal on the ‘‘possession with intent to © :

defraud’? count on essentially:the same grounds (T.R.

378). — oury) The motions were denied €z: cal

391).

8 When the Trial Gout was receiving \oitiaitons,;

+ the Appellant, Henson, again requested a directed ver-

Ge. of acquittal on both’Counts 1 and 2 of the indict.

ment. The motion was again overruled (T. R. 671).

Appellant, Henson, contends that. the Trial Court.

‘ should have granted his’ motions for directed verdicts

of the indictment because there was no competent evi- ©

dence to support the Counts, i.e. , the sole evidence was

the uncorroborated ‘testimony of the —— and

1% co-conspirator, Dave Burton. : :

Site eit ah

te emg e

_ Even if this Court finds that the Trial Court eor-

rectly denied the motions for directed verdicts of

acquittal and correctly sent the case to the jury, the

petitioner, Henson; contends that he was prejudiced -

by an erroneous instruction. to, the jury. The Trial

Court gave the following instruction (T.R. 206) :

‘*An ‘accomplice is one who voluntarily. partici-

-pates in the commission or the planning of a crime..

If the jury believes that the witness, Dave Burton, -

directly participated as‘an accomplice in the commis-—

. sion of the offense charged, his testimony. should be

closely examined and weighed with great care. I f the

jury believes the testimonygf an accomPlice ta be true —

beyond a reasonable doubt, that testimony, is sufficient

to convict the defendant, even though it is not corrob-

orated by any other evidence.”’ (Emphasis ours).

‘In Weiler vs. United States, 323 U.S. 606, this Court !

* held at page: 611:

. We cannot say that it did not étpactatine: ‘The %

jury convicted without. being instructed that more |

than the testimony of -a single witness was re-

é quired’ to justify their verdict. . This was no mere

‘technical’ error relating to “formalities and mi-

nutiae’ of the trial.

A fortiori a person is spiojtndioad en even more if the — ag

jury is instructed that corroboration ’is mot necessary.

The Weiler case, supra, involved the special situation

of perjury and the “‘two witnesses or one witness and

corroboration’’ sules. However, it is analogous to the

need for corroboration of mm testimony of an accom-

plice. _

‘The petitioner, Henson, urges. that, the Trial Court _

erred in instructing the jury that independent evidence

was. not needed to corroborate the, testimony of. an<

e | a. ee

aécomplice, a rule controverted by this Court for many

_ years. Such error was prejudicial and _ Appellant ’s

ee conviction should be eet aside. caer ts \"

2. THE COURT ERRED IN REFUSING TO’ PERMIT THIS

PETITIONER, GEORGE WILLIAM N,- TO. INTRO-

DUCE LETTERS RECEIVED. FROM ‘OF RESPOND.

a |

' ALLEGED IN THE wemeeaunstle

* ‘The petitioner, Henson, in possession of two

sk a REE rE ked as having been .

' mailed ‘from Somerset, Kentucky. When the petition-

*. er attempted to introduce’ these letters into evidence.

' the Court refused to’ allow their admission based on

the Government’s objection to their authenticity (T.R.

is 417). Both letters were placed into the record by way

of avowal and appear on Pages 423, 424 and 425 of »

the. record. ..

The. authorities ceneralit ‘concede that under

“is “proper facts and circumstances the authenticity or

_ ‘germineness of: a letter may be established by indirect

_ or circumstantial evidence. Dunbar vs. wires ote es,

156U.8.185.

. The petitioner, Henson, testified (T. R. 410) t.

Burton wrote him.a letter which was postmarked No-

vember 30, 1964 and was mailed at Somerset, Ken-

tacky. ° The letter saa (T.R. 423)

“Dear Sir: se ; x eee

. If yoo want to elie suk of thaé ‘woutile down

: Shy in Somerset; send me $1,000.00, J will tell -

them that I don’t know you at all. Say you do this —

‘by the 10th of this month, for I have got to g0 2 3a

acannon on this business. "

* . ; ‘ “13

The — letter received he the petitioner, ‘Hen- a:

- gon; was delivered some time i in March, 1965. It reads: :

(T.R. 424, 425) : rat

- “Dear. Sir:

ad Tsim not mad at-you at atl “pith ip bates

out for you. en I wrote you before [ only .

* neeifed $1000. Now I need $2000.00. Send it

to.me by a friend or bring it yourself. I will be

. at the ® wrecking yard most any tinie.

oie nies RE EL (Signed) D.B.”

- Both letters referred. to. were written on the bill-

heads of the East 80 Wrecking. Company, owned and

operated by Dave Burton in Somerset, Kentucky, .

- where the letters were postmarked.

The first letter came December 2, 1964, some six .

(6) weeks after Burton had asked Henson to.help him

-. get some counterfeit money. (T.R. 409).: The second

_ letter arrived some three (3) months en in ‘March,

The letters cuiahabiaael such” information that Dave

Burton would be most likely to know. It vas shown

by the petitioner that he knew no one in Somerset s

fi: , except Dave Burton.

‘The second ‘letter was deli an the initials

“DB... It referred to ‘the wrecking yard”’ as the

pay-off point. . Who else but Burton would have beert.

"writing to the petitioner demanding money to keep 3

quiet? The entire record shows no other person in —

Somerset who woyld have been interested in writing |

the petitioner demanding money except Burton..

The circumstances set out are enough to require >

the letters to be admitted into evidence ‘and allowed

a Ne

- the jury to dtritthte such weight t them. as = they were

_ To vetuse atitipsion ot the letters was error.

3. jenn oni Goons ainda ce ben Raxkinin 0 Peon

‘ERLY: INSTRUCT THE,JURY BY VIRTUE OF THE

. . RAMBLING AND. CONFUSING LANGUAGE. AND ITS

: EVIDENT FAILURE TO PROVIDE SUFFICIENT GUIDE.

LINES DESIGNED TO PRODUCE & COMPETENT VER.

DICT.

Petitioner ‘acknowledges the fact. that a ob-

jéction was not made to the giving of instructions, but

-conterids that the very nature of the. complaint against

- these instructions oecasioned the. failure to object.

The misleading, confusing ‘inonologue | which was of- .

- fered to the jury for some considerable time by the _

' Court, was equally as confusing and: misleading ‘to

counsel and the character of the entire charge did not”

_ become apparent ‘until. an equally confusing raat

.. ‘.was' erroneously returned by the panel. :

'. It is well established that under Rule 52(b) of the @

' Federal Rules of Criminal Procedure and the great °°

_ weight of cases that, ‘‘An Appellate Court may take ©

- notice on its own motion, of prejudicial error inherent

in a Trial Court’s instructjoris to.a jury.’’ -Morissetti )

ws. United States of America, 342 U.S, 246. Smith vs.

. United States of America, 230 F. 2d 935,. ‘Lazarov 3 ae

United States of America, 225 F. 2d 1929, 2-8

“There is no intention on.the part of this petitioner

to unwarrantedly criticize ‘the ability or ‘sincerity of

the Trial J udge in his preparation and presentation —

of the instructions. Petitioner realizes the involve-_

sment and morass of evidence -TInade’ available - to. the a:

; Jury at this —_ and even further bates oY the. |

_ physical facts presented at the actual trial ef tliree _

' defendants at one time: _However, the fact does remain -

- that the-jury evidenced confusion from the instructions -

: when they returned*a verdict inconsistent, with those ©

instructions.

‘It is the eolibetition. of the petitioner that the

. length and coniplexity | of the ‘instructions, coupled

":. with the failire of the’ Court to properly instruct con-

-eerning accomplices and co-conspirators, constitutes

an ‘unclear and ambiguous charge and, taken as a_

whole inadequate. to protect the rights. of. this peti-

tioner.. It is the further contention that these -erron-

~ eous ~instraictions : constitute. ‘substantial’ prejudicial .

effect upon this petitioner arid in. its confusion; allowed

- the jury to return a. verdict.inconsistently formulated. -

4. THE COURT ERRED IN RESUBMITTING THIS CASE.TO_ Le

oe ee :

| RENDERED 4 A VERDICT. y

‘The case was submitted to the. jury on ey une: th

: as 9:40 A.M. . The jury returned at 11:20 A. M. and ~

handed thejx’ verdict to the, Clerk and arinounced to .

the Court they had-reached a verdict. The Court read |

8 the verdict in open court, as follows: (T. R. 719-720)

ne > Kellewing this a the Court, on his own aia,

a eas

‘““We, the jury, find Georg e William: Henson guilty

‘Oven Act Ne &, Chatken ¥. Wtheeen walks Oat

Acts-Nos. 1, 4, and 5, Harold Bruce Staton guilty

Overt Act No. 4. |

Ae @ (8) J: 8. Helton’ 3

Foreman.” . iP

tion, statéd: (T.R. 720)

| “Gentlemen, as you can see, ‘the asin is that the mane

bear arate) are Hanae guilty. — ried a William ma

a ao oe 05° 8 5

\ <3

- 3 as

Henson found guilty‘ on Overt Act 1; Charles v.

Wheeler found guilty on Overt Acts 1, 4 and 5;

« Harold Bruce Staton guilty on ‘Overt: Act 4. Of ;

' or irMocénce-of the defendants as te each of these.

‘.. counts, rather than, the: oyert acts.’ if

2. ‘The Court then resnhmitted- the case to: the jury

_ «, and ,the jury returned shortly wih another verdict . -

"which read: (TR. 735)

‘<We, the jury, find Geoir William Henson: guilty

‘in Count No. 1 and 2; Charles V. Wheeler guilty

te _ -in Counts No..1, 2, % and 4; Harold Bruce Staton :

—— Count No. 1 and 4.” 0°:

5 &

The variance? ‘etween the first: Speplict Laid .

puebiein the defendant, Henson, guilty under Overt

) Act 1 to guilty under Counts 1 and 2°i8 more than just .

a simple correction of a mistake on ‘the part of the

jury. It resulted. in a conviction: under a different

when, in their

of. Overt Act

same as Count 2. The sentence imposed under Count 2

was ten.(10) years imprisonment. This, at the most, —

is all that defendant Henson should have received.

The seeond: verdict added to this sentence five (5)

AS Count than that which the jury must have: intehded - |

| verdict, they ‘found Henson guilty 3

It is the contention of the petitioner Hanson that .

’ the jury found him guilty of Overt Act 1 which is the

par under Cofint 1 which was not a part of Overt”

Act 1, which was the original verdict of the jury.

While the law is clear that the Court*may correct”

or havé the jury correct any inadvertent mistake be-

fore accepting the verdict it is equally tlear that, in

- this case, this action went much: further than to correct’

BS. mere mistake. It added a conviction under a differ-

OF ae a ates

hiss a

ent ‘hesinake \einl ‘for this reason it y was 4 are Obouk to re- .°

ae ‘ceive this verdict . of guilty. under Count’ against the

defendant, George William Henson. a7:

™. — CONCLUSIONS

- We respectfully submit that the diese intro-_

~ duced by the government was msufficient to sustain a.

conviction of the petiti Eyen ing that the

evidence was ‘sufficiént, the petitioner is entitled to _ =

. proper instruction setting out the proper consideration |

which the jury should give to the testimony of an

accomplice or co-conspirator.

. The petitioner was further denied when he was’

“not permitted to introduce eompetent evidence’ by the

—use‘of letters from respondent’s witness and relating

-. to the incident alleged .in the indictment.

, 4

;

ee Nh

‘We further urge that the instructions ‘must be so 2 ;

'. drawn that the jury may reach the right conclusion. |

Such was not the case below and the jury demonstrated

‘their confusion the first verdict they returned. Even

after the jutry demonstrated their confusion the Court

| _ erroneously résubmitted the case to them.

~ We respectfully submit that this Court grant a

review of petitioner’s case.

RicHARD E. VIMONT

-- 139 Market Street

* , -° Lexington, Kentucky

‘Counsel for Petitioner

ys P

e ” -

ee. .

. 4

APPENDIX

- George WiLLIAM HeENson,

AUG 30, 1966

UNITED STATES COURT OF APPEALS -

FOR THE SIXTH CIRCUIT

Unirep Sravu oF AMERICA, )

Plaintiff-A ppellee,

oe. |

Defendant-A ppellant.

! Unrrep SraTes oF AMERICA,

, : Plotnteff-A canoe

¥.

CHARLES Vv. WHEELER,

| “Defendant-Appeliant.

_ UNTTED Siawees OF homed

Plaintiff-A ppellee,

| a ee a

Defendant-Appellant. }

APPEAL from the

| United States District

‘ Court for the Eastern —

‘District of ‘Kentucky. .

Decided August 30, 1966

) Before: Weick, Chief. J udge, Celebrezze, Circuit igs

.. Judge, and Cecil, Senior Circuit. Judge.

_ PER CURIAM. Defendants-Appellants, ely

7 William Henson; Charles:V. Wheeler, and Harold

‘ Bruce Staton, were jointly indicted and meena SE

19°

| ‘CARL W. REUSS, CLERK —

Nos. 16812-13-14 ae

i ¢ conspiracy to sell counterfeit ey in ‘violation of

- Title 18 U:8.C., Sections 472 and 473. :

The evidence disclosed the fillowing nailed

-- facts: On September: 23, 1964, George Henson and

: Charles Whééler asked one Dave Burton if he could |

_. find a buyer for. $25,000 of counterfeit ten and twenty —

. dollar bills. Two counterfeit ten. dollar bills were

~ left with Burton as samples. Burton then: disclosed

the plan to the police.

_ Henson and Wheeler also contacted one Doyle )

Couch in an attempt to sell counterfeit money to him.

Couch was not interested and after Wheeler and Hen-: |

son left he called the police giving them a description :

of the two men and the car they were travelling in.

counterfeit bills scattered along the highway.

~ - On November 5, 1964, a meeting was. arranged -

with Burton and a buyer for the counterfeit money. .

Burton and a special‘agent met Wheeler and Staton

at a motel. When the counterfeit money. was delivered

to the special agent, ‘police officers arrested Wheeler

and Staton. .

Several grounds ‘for reversal are sthped by the

erred in sustaining the judgment of conviction: upon

’ an indictment which charged one conspiracy where the

_ The police found the automobile being driven by Hen--

- gon, with Wheeler riding as a passenger. The police

_’chased the Henson automobile for two miles before it -

- was finally stopped. No counterfeit—currency was _

found in the automobile, but a ‘truck driver picked up

8 Appellants. - First itis argued that the trial court. —

ne proof showed two conspiracies. In Kotteakos v. Unit-.

i ed States, 328 U.S. 750 (1946), the variance of prov- |

ing several conspiracies was held to be prejudicial.

The Court stressed the crucial fact. that thirty-two ,

persons were named in the indictment and nineteen.

: 21

_ were brought to tein. The only common factor was

‘ the defendant Brown who acted as broker for the other

-defendants. “Most of the defendants did not have any |

7 relationship or connection with any of the other de-

- -fendants. Here the defendants were acting together i in

‘a‘common scheme. Only. three defendants were in-

- dicted. See Berger v. United States, 295 ate S. 78

(1935). No surprise was claimed, and we see no preju-

dicial error resulting to the defendants.

. » Error is claimed in the testimony of Trooper

Walton who testified that Defendant Wheeler admit-. _

, was being chased by Walton. No objection. was raised —

at the time this evidence was introduced. - Later, how-

ever, the( statement was objected. to,. and the Sat

cara jury to disregard the testimony, stating:

_ ‘Members of the jury, shortly before the recess of

_ the court on’yesterday the witness for the United

_.States,-Freddie Walton, a trooper with the Ken-

tucky State Police, testified with reference to a

statément made by the defendant, Charles V.

Wheeler, said statement having been made on Oc-

tober 8, 1964, relative to certain counterfeit- cur-

mony from the consideration of the jury: The

- Court heard the evidence in regard to that matter

out of the presence and hearing of the jury and,

having heard: the evidence, the Court sustained -

the motion. The jury is admonished not to con-

sider for any purpose the statement made by.

Trooper Freddie Walton of the Kentucky State —

‘Police with reference to a statement made by the

‘defendant, Charles Wheeler, on October 8, 1964 .

relative to this alleged counterfeit woraieeares A Do

not coneyerr spac for any pare i

tee

_ We find that the Court’s admonition to the jury _

was sufficient to protect the defendant's rights and ‘no.

_” prejudicial error resulted.

The jury returned a verdiét finding the ‘ietendate’

guilty of certain overt acts charged in the indictment.:

The Court, after instructions, re-submitted the case to

the jury to place their verdicts in the proper. form. .

_ No objection was raised by the defendants and we find.

this procedure was pypper.. .

The Court has the power, before accepting a ver-

| dict ‘and discharging the jury to permit.the; jury to

correct a mistake in the verdict. Helms v. United

States, 310 F. 2d 236 (C.A. 2, 1962) ; Wilder'v. United

- States, 246 F. 2d 186 (C.A. 5, 1957 ); Firemen’s In-

.. surance Company of Newark, ‘New Jersey v. Graigie,

288 F. 2d 457 (C.A. 8, 1962). 3

- We have examined the other claimed errors raised

: by the Appellants and find. them to. be ‘without merit.

The judgments of the District Court are affirmed.

‘UNITED STATES CouRT. OF APPEALS -

“FOR THE SIXTH —

7 No. 16,812

-Unrrep ices OF Anerica,

3 Pinay Ageaice, a pee:

bit ae * AUG 30, 1966...

ae a“ CARL W. REUSS, CLERK r

Defendent-A popellant. z

Berean: Witox, Chief Fudge, CELEBEEZZE, Circuit

| » Judge and Crom, Senior Cireuit Judge. -

JUDGMENT’

APPEAL from the United States District Comet

for the Eastern District of Kentucky.

- THIS CAUSE came on to be heard on the eee

fronr the United States District Court for the Eastern

_ District. of Kentucky and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered: and adjudged by this Court that the

judgment of the said District Court in, this cause be.

__and the same is hereby. affirmed.

No costs awarded. Rule 23 ( 4).

- Entered by order of the Court,

Nae eo te ae CARL W. -REUSS

UNITED STATES CIRCUIT rcOURT OF APPEALS.

For The Sixth —

oe STATES OF Amentca, a : = :

oi at de scenes } ~ N gtk

FILED

- -VS.. c - SEP. 23°1966 -

GrorcE WILLIAM Henson and | CARL W. REUSS, Clerk. |

CHARLES V. WHEELER, —

| | ppellants.

PP a

. . '

- 'Brrore: ‘Weick, Chief pa CELEBREZZE, ‘Circuit.

J ee and CEoIL, Senior Circuit re.

ORDER STAYING MANDATE |

ORDERED, That motion to stay apiidate herein

pending application to.the Supreme Court for writ of |

certiorari is hereby granted and the mandate is stayed:

for thirty days from this:date; provided that, if within:

such thirty: days, the applicant shall file with the |

Clerk of this Court the certificate of the Clerk of the

Supreme “Court that the certiorari petition, record,

ore

ees

and brief have been filed, ‘the stay shall continue until. -

the final disposition of the case by the Supreme Court. .

Unless this, condition is complied. with within ‘such

thirty days or any extension theredf made by the Court

‘or any judge thereof, or if the condition is complied ~

with, then upon the filing of copy of an order denying m

the writ applied. for, the mandate shall issue.

a8 . Entered by order of ca Coart *

"Clerk

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