# Petition for Writ of Certiorari — Henson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0035%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 974 ## Text Lyre eae agate i Rg MS | ee Palen eae eat : _f. FILED. | gente prrs* oe iP aces lbs it at cs ne fe 1968 4 JOHN - K _ SUPREME COURT OF THE UNITED STATES Ss ‘+ 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 | | | ft ~ Pi Pia tet.STPecHhO Goss aing Pinta onder Di 08 ak in - « ee ‘tli, “ .4 a oi : t Age “ae SN ee ee 2 ie EE coe ey cer | err 55 5 ot. fig ‘ a &- Se é : oe prt . . OPINIONS-BELOW 2152 oe nc ee - 8 pits “a “- 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. ed 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... ° ae Unrrep Stares or Ammprica’ -- - - Respondent . aN | 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 o. Geticee William ‘Freution, defendant in a bball ae 7 « 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. » . Ns eiatialelielicecaatieds iiaiiaili eet aia aa 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 - 2 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- 8 ; 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) Sy 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 Vv 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 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. j | ‘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 \ ‘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 Ne ener Teele - © Clerk UNITED STATES CIRCUIT rcOURT OF APPEALS. For The Sixth —