Petition for a Writ of Certiorari — Zamora v. United States

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; ea 4 Office-Supreme Court, U

i ERARY: me ‘ae * FILED

itt aeieaetet i = ‘

= : =e 1966

- IN THE

_ SUPREME COURT OF THE UNITED | TATES: DAVIS, CLERK

“Ocronza Term, 1966

‘No. ae -

NAPOLEON PERSONE ZAMORA,

Petitioner,

| vs.

: UNITED STATES OF AMERICA’, y

Respondent. : 1

Ps : >

ON PETITION FOR WRIT+OF CERTIORARI TO THE.

UNITRQ, STATES COURT OF APPEALS, TENTH CIRCUIT

| Bun PETITION FOR WRIT OF CERTIORARI

q Q + $$ _ 5 bt Be : , ; ee Se acct .

| " QUINCY D. ADAMS © __

| ra | Adams & Pongetti

- * _, 18 Simms Building’

Albuquerque, New Mexico

ean | __, HARRY L. BIGBEE

lls ob: ap: " ‘Bigbee & Byrd ~*

near ee eee _ | : Suite 200, Bokum Building

ee ee Post Office Box 669

¥ maaan Fe, New. Mexico

ARTHUR H.. COLEMAN

Suite 14, Blatt Building '

Post Offite Box 1453

Santa Fe, New Mexico.

ESR EAGER LM RCE ARSC

Bares PRINTING COMPANY « Senta Fe, NLM -

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b } . INDEX

Opinion Below .

| Jurisdiction

7 a Questions Presented | ;

, Statutes Involved —

Statement of. the Gias

There are eee and Important M

{Reasons for the Allowance of the Writ

I, Evidence of criminal acts other

than, those cnarget in the ee a

___ es Sr Oaae tion of S elf. -inc criminato ry

state me nts,

A. Failure to promptly

- arraign petitioner,

B. Violation of petitioner's s

right to counsel, *

a. Insufficient corroboration of |

confessions by” independent evidence,

wm Saciidientelie ‘statements. |

| Conclusion

peo A:-Oplaion of Tenth Circuit

Court bas Appeals

—_—

"erintse v. United States .

. /Y.°" “CITATIONS

-« Casés

> 348 F.2d 72 (1965)

- Boyer v. United States »

132. RM 2. (D. G. App. 1942)

Cartello v. United States

: fis BS peti ies 1937)

296 F.2d 320 beatae 1961)

| Escobedo Vv. “State of Ilinois

Be 378 U. S. 478, 848.Ct. 1758 (1964)

pee v,\Unit od States aes

—6B6 F.2d444 (9thCir. 1929)

iia v. : United eine

336 F.2d 962 (1964)

Hartman v, United States

215 ¥. 2d 386 assesses 1954) .

Helton v. United States .

221 F. 2d 338 (5thCir. 1955)

Johnson v, New -

384 U.S. 719, 86 Ss. Ct. Ar72 2 (1986)

/ 315 U.S. 60, “62 S. Ct. 457 (1942) <i

41,42,43_ -

39.

~ Kraft Vv. United States, ; a sta a 35.

238 F. 2d 794 (athCir. 1956) he

+ Bis ate a y aN cae eee 5 0

nee Labiosa v, Government of the Ca nal Zone - 36

lov Se eee

< .

McNabb y, United States Pee Se ok eee

‘Niederluécke v. United States \ $8

Johnson. v, Zerbst xt

304. U. Ss. 458, 58 S. 3s Cte 1019 (1988) oy

sia ih ed. 282 (5thCir, pha

ame F. ed 9 ane 1955)

Lyda_ ve United States | ia «+ 33,35 j 2

a F. 2d ned (9thCir. 1963) Pex cess ana

Malloy Vi United States j 38

354 U.S. 449, 77 S.Ct, 1356 (1957) 2

Maféhall Vv. United States... * : “ee ,

360 U.S. 310, 79.S.Ct. 1171 (1959) :

-318 U.S. 332, adlactarn 608 (1943) -

Michelson v. ‘United Sentes ‘ | . 33,34:

, 335 U.S. 469, 69S, Ct. 213 (1948) °

Mirands v. Arizona ates 40,41

> 3840U.S. 436, 86 S.Ct. 1602 (1966)

", 21 F.2d 511 (8thCir, 1927) | \

Opper v, United States: _ tN ig ged

- 348 U.S. 84, 75 S.Ct. 158 (1954)-

’

iii

Paris v, United States ae

260 Fed. 529 (8thCir. 1919)

‘ People v. Collins

Ne People e. Modesto... ©

« 42 Cal. Rptr. @17, 398 P. 24.753 } (3966)

“

--11°Cal. Rptr. 504:(19@1) .

e . Ca :

- Queen v.. United States

335 F:2d 297 it Cc. App. 1964) -

Quig Vv. United Sines

33 F.2d 820 (3rdCir. 1929)

| "Sang Soon Sur v. ‘United States.

“®

167 F.2d 431 bee cal 1948)

Smit ith vi: United States L

348 U. Ss. 147, 75 s. Ct. 194 (1954)

Spriggs v. United States :

335 ¥. ad = (1963) .

State v. Butler

38 N.M, “453, 34 P, 2d 1100 (1934)

State v. Griggs.

| 'N.M.,. 466, ‘150 Pac. 921. (1915)

State v. _Hernandez

36 N. M. Soi 7 P. 2d 930 (1931)

“United Biases, Bens. i .

- 324 F.2d 582 (2ndCir. 1963)

. iv

34,35 -

39°

United States Ve. _Jacangelo x Merete Sk

322 U.S. 65, 64S.Gt, 896 (1944)

" United States v. Sorrentino el aa, 1: S-

78 F.Supp. 425 (2948); aff'd 175. ey

F, 2d 721 (3rdCir. 1949); cert. den. /

' 338 U.S. 868, 70S.Ct, 143 (1949) .

Upshaw v. United States , a : ee ae

. 335 U.S, 410, 69 S.Ct. 170 (1948)

Vinee x, Commonwealth of Pennsylvania 44

335'U.S. 437, 69S.Ct. 184 (1948)

Yon Moltke v, Gillies A ama arte

| “United States Statutes

332 U.S, 708, 68.8. Ct, 316+(1948)

Won ng Sun v. United ae : 46

371 U~ s. 471, 83'S. Ct. 407, a . oe

Young ' Vv, United States a £ 49 2

97 F.2d 200, 117 A.L.R. 316°

(5thCir, 1935)

CONSTITUTIONAL PROVISIONS AND STATUTES

United States- Constitution — Hee ya corey }

‘Sixth Amendment see Se ae te - @y

18.U,S,C,. 656 ie ts Zee Fa

18 U.S.C, 1005 | : acters

18 U.S,C,.4208(a)(2) | we 3

281. F.2d 574 (3rdCir.1960) 2

United States v. Mitchell oie at eal

‘MISCELLANEOUS " - =

Federal Rules of Civil Procedure’ we

Rule S(a) pe >

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\ .

. _ IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1966

fee

_ NAPOLEON PERSONE ZAMORA, . ,

Pe titioner,

_UNITED STATES OF AMERICA,

_ Respondent,

REVIEW ON WRIT OF.CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT —

PETIT ON FOR WRIT OF CERTIORARI

| OPINION BELOW.

The judgment and opinion of the United States

Court of Appeals,’ Tenth Circuit, reported at

. EB. 2d. - (not yet reported), is printed and

-. annexed hereto as Appendix A, The judgment

- appears at Tr. 4, References to the 41 page

Record are herein designated as "'R," to the 799

page Transcript as "'T,'' and to the 5 page Trans-

‘cript of nECaES ¢ as "Ts," - ,

JURISDICTION

The judgment and opinion of the United

‘ States Court of Appeals, Tenth Circuit, was de-

livered and entered on December 1, 1966, (Appen-

‘dix A, hereto) Petitioner's Motion for Stay of Man-.

date was granted by the United States Court of

Appeals, Tenth Circuit, pending application for

Writ of Certiorari to this Court on December 15,

1966. The jurisdiction of this Court to review by

Writ of Certiorari a final judgment of a cause ina

court of appeals is conferred by 28 U. S.C, 1254

(1). :

~ QUESTIONS PRESENTED

The questions presented are whether the

decision and judgment of the United States Court of

Appeals, Tenth Circuit, erroneously failed to re-

verse the conviction of petitioner in Cause No,

22279 on the criminal docket of the United States

District Court for the District of New Mexico in

eleven Counts of violating the National Banking

Laws by making of false entries and embezzle-

ment, on.the following grounds:.

. I. The admission of evidence of purported

‘ criminal acts of petitioner. other than those charged

in the indictment was prejudicial error?

| II, The introduction of petitioner's "self-

incriminatory" statements was reversible error be-

cause: eats 3 eee

A, petitioner was not promptly brought

? ee: Se RO A SRE HT FETAL SEIS TUPI OS SE ORC ee % St ornene agirtees

a '

- AC +2.

< ¥

. before a United States Gommissioner?

B. petitioner’ s "gelf- -incriminatozy"

statements were elicited and taken i in violation of .

~ his right to. COMRSSE.

Il.. The wimieanie admissions and confes- |

sions were not sufficiently corroborated by inde - :

pendent evidence. ‘s

- IV. According to the uncontroverted ex-

culpatory matter introduced by respondent or ~~.

testified to by its witnesses, petitioner is entitled |

to acquittai as to each and every count,

STATUTES INVOLVED

The two statutes » the violation of which

petitioner was purportedly convicted, provide. iz:

material part; ;

18. U.S.C. 1005:

"Whoeéver, being an officer, director,

agent or employee of any Federal Reserve

bank, member bank, national bank or in-

sured bank, without authority from the |

directors of such bank,...

" ..makes any false entry in any book,

report or statement of such bank with in-

tent to injure or defraud such bank, or any

other company, body politic or corporate,

_ or any individual person, or to deceive

any officer of such bank,.or the Comptrol-

ler of the Currency, or the Federal —

"Deéposit Insurance. Corporation, or any

agent or examiner appointed to examine

the affairs of such bank, or the Board of .

Governors of the Federal Reserve System--

"Shall be fined not more than $5, 000 or im - 2

prisoned not more than five years, or both,"

-18U.S.C. 656:

"Whoever, being an officer, director,

- agent or employee of, or connected in any.

capacity with any Federal Reserve bank,

mhember bank, national bank or insured

bank; ....embezzles, abstracts, purloins

’ or willfully misapplies any of the moneys,

funds or credits of such bank or any mon- -_

eys, funds, assets or securities intrusted

to the custody or care of such bank, or to

the custody or care of any such agent,

officer, director, employee or receiver,

shall be fined not more than $5,000 or

‘ imprisoned not more than five years, or

beothse <2 e” : 3

STATEMENT OF THE CASE

On April 8, 1965, ‘a criminal complaint was

filed against petitionér by respondent for a purpor-

ted single offense consisting of making a false entry

- on the books of the First National Bank of Santa’ .

Rosa, New Mexico, (hereinafter called "the Bank") -

in violation of 18 U.S.C. 1005 (R. 41). Said pur-

ported offense allegedly occurred on April 5,. 1965,

and involved a discrepancy of $3,000 (R. 41).

On June 21, 1965 an indictment was re- __

turned against petitioner in said Cause No. 22279,

- accusing petitioner in eleven County of various

crimes (R. 1-7), Counts I through VIII accused

petitioner, while an officer and employee of the

Bank, of making and causing to be made false en-

‘tries on the General Ledger of the Bank willfully,

. knowingly, and-with the intent to injute and de-

fraud the Bank, in violation of 18 U,S,C, 1005, on.

eight separate occasions between January 28,

- 1964.and April 5, 1965 (R. 1-5).. Counts IX .

through XI accused petitioner of embezzling funds.

and credits of the Bank willfully, knowingly, and

with intent to injure and defraud the Bank in vio-

lation of 18 U,S,C, 656, on three separate other:

occasions between May 5, 1964 and February 13,

1965 (R. 5-7), (18 U.S.C, 656 prohibits the em-

bezzlement of ''money, funds or credits,'' Only

"funds and credits" were charged in the indict-

ment (R. 5-7), Also, said section prohibits em-

bezzlement of property."of.such bank" and that. __

"intrusted to the ‘custody and care-of such bank, '"

Only the former was charged.) Each of said .

- eleven Counts involves a certain sum of money or

discrepancy totaling $38,000.00. in the aggregate

and in each case it is alleged that. the Bank's

me aes ‘were*then and there insured by the. FE. D.

- (R. 1-7), ;

After petitioner was arraigned and plead

"not guilty" to each and every Count of the indict-

ment (T. 2-6), he filed his Motion to Quash ana

Dismiss the Indictment (R. 8): with supporting af-

fidavits (R. 11-14) contending in part that said

indictment was obtained by and as a result of a

purported confession illegally obtained from peti-

tioner by respondent ‘in violation of his rights

_ guaranteed by the Constitution and laws of the

United States (T. 8). In his-affidavit, petitioner

stated that the said purported confessions were

taken against his will ard that at no time prior to

making said statements did he consult with an

‘attorney or was he otherwise aware of his legal

rights (R. 11), After this motion was denied

. (R. 16), the cause came on for trial on August 10,

.1965 and continued until August 13, 1965 (T. 7-

791), at.which time the jury returned a verdict of

guilty « on each and every Count as ere t in the

indictment (R. 22). .

Petitioner submits that this is a case

where the prosecution introduced voluminous and

confusing evidence, but the only purported evi-

dence, if any, tending to show appellant com-

-mitted any:crime, was Certain purported confes-

sions and admissions, each of which were proven

false by prosecution evidence and witnesses in

almost every material aspect, and which were

elicited and written by F. B. I, agents while peti-

tioner was without counsel, in a secret proceed- |

ing, and in a manner totally inconsistent with -

' federal law and petitioner’ s constitutionally guar-

anteed rights.

Respondent attempted to prove that peti- -

tioner made false entries and embezzled "funds

and credits" by attempting to prove petitioner had

done so by the following four-step-method:

(1): Petitioner credited sums to the check- _

ing account of the City Food Market, a grocery

‘store in which petitioner had an intetest, or to

his personal account, which reflected a cash de-

posit to said account which was never in fact

deposited, (Although respondent introduced: evi-

dence that petitioner had access to and custody <

of the cash (T, 175,176, 298), respondent did not

appear to contend that petitioner ever caused

irregularities by any method other than by thea

making of uasupported deposits, such as the

. ° . . e

. ,

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e “ 2 REDD BAB AAR IE NORE :

-rémoval of cash from:thé Bank;* in fact, respon-

dent's witness, Special-Agent Carlton, testified

‘that’ petitioner told him'this was not the case.

(T. 540,560). Respondent did introduce evidence

that if irregularities. occurred, it could have eee

been accomplished through the outright rem« oval.

of cash,. and as to petitioner; this. was consistent

with the unco rted documents of the Bank

__-introduced by respondént (T. 67-68, 380, 386,

395,.576). In fact, at least insofar as petitioner .

is concerned, the only method consistent with

said uncontroverted documents by which he could.

have caused any irregularities was by removing

cash, some, but not all of which he could have

later redeposited to his account, That petitioner

did this seems highly unlikely, | since he could

much more easily have made direct deposits to ©

his accounts such as in the manner he purpor-

tedly confessed to, Furthermore, there was

no substantial evidence that petitioner ever re-

moved any cash from the Bank; in fact, in the .

embezzlement Counts, petitioner was not charged

with embezzling Sapaed but only "funds and

credits." (R, 5-7)).

(2) To cover up.these unsupported deposits,

petitioner then made "complementing" machine en-

tries on the proof tapes which reduced the "'cash-

‘in" (amount of cash received by the Bank) and

''demand deposits" (sums deposited in checking

accounts) totals for the dates said unsupported

deposits were made, The proof tapes reflect

each transaction of the Bank for the two accounts

(T. 41,45). These "complementing" entries

would have to be made the same day as the un-

supported deposits, since they would have to be,

under respondent's theory, -for the purpose of

counteracting the effect of said deposits on the _

fe .

daily totals, and causing the actual cash in the Bank

to balance with the figure shown therefor in the _

cash journal, (According to Carlton's testimony,

it-was only if the cash journal reflected the actual

. amount of cash in the Bank or. under the Bank's.

control that a conclusion of shortage could be

- reached (T., 380-6, 395). As Eastland testified,

the cash nel d not be withdrawn on the day of the

irregularity under respondent's theory; all that

was necessary was for the sum. to be out of the

control of the Bank, such as by having a balance ©

showing in petitioner's account ready for and sub- :

"complementing" entries would havé to be made

on the

. ject to cet" (T. 67-68). However, the

me date as the unsupported deposits in

- order to accomplish the result respondent claimed

petitioner performed; namely, to-record a deposit

_to his account without the General Ledger ‘control .

account so indicating and without having the cash.

journal reflecting anincrease incash.) é

(3) The ne a ee entries caused

* the General Ledger control account for demand

deposits: to show a false entry, which understated

the demand deposits by the amount of the "com-

plementing" entry. The General Ledger account .—

' reflects the total of the individual checking accants

. in the Bank (T. 16, 36).

(4) ‘In order to cause the "demand deposit"

total of the proof recap sheet, which is taken from

' the proof tape (T. 27), and which is the only figure |

that is used for comparison purposes the follow-

ing day (T. 387), to balance the following day with ©

tke total posted to the individuals' demand de-:

posit accounts, petitioner made a handwritten

change on the. proof recap increasing the demand

deposit figure, — .

ioe

: Attempting to prove the first step, ‘that

petitioner had made ‘the unsupported deposits,

respondent introduced evidence that petitioner had,

for 19.consecutive years preceding April 8, 1965

been employed by the Bank (T. 26), and from Jan-

uary 28, 1964 until April 8, 1965 was so employed

‘as Assistant Cashier or Cashier (T. 26). Petitiaer

had access to the funds and credits, ‘vault, and

records of the Bank (T. 26,. 176), as did the other

officers, Hauser, Eastland, Serrano and Romero

(T. 25,213, 236, 655), and was in charge of the

_ bookkeeper and teller areas (T. 26). (Hauser and

Eastland, who were in charge of the Bank when

‘they were there, were only employed by the Bank

part of the time herein involved (T. 25, 193,

197-9). Hauser died on May 20, 1964 (T. 197):

Petitioner was also in charge of the Bank for sev- -

eral months; however, no shortages arose during

this period (T, 193-7).) Respondent did not pre-

sent evidence that Serrano, Romero, or others

who might have had access to said funds, credits,

vault and records, had not caused any irregular- .

ities, assuming any existed. No one testified

that they ever saw petitioner remove money, funds,

or credits of the Bank, or make unsupported de-

posits, Although it was shown that-petitioner was

in the Bank actively engaged in Bank business on

the dates in question (T. 117-130), it was not

shown that he was in the Bank at the times of the.

day the "complementing" entries were made on the

proof machine (T. 402). Petitioner did take vaca- °

tions (T. 211), and was neither the first person

‘to arrive in the morning nor the last to leave in

the evening (T. 211, 213, 279).

The only substantial.evidence, if any, in any

way indicating petitioner made any unsupported de-

¥ greens to his accounts were his various purported

4 oa ee re ea tae

4 ee , ee os :

- confessions and admissions, including Exhibits:

91 and 92, These statements are so patently _

false on their sre aye little value can be ascribed

to them, In Exhibit 92, peereensr purportedly -

confessed:

. “About twelve years ago I began con-

verting funds of the bank to my own use

by putting deposit tickets to my accounts

_ for amounts which I failed to deposit, "

_ The documentary evidence introduced by- .

respondent proved beyond a shadow of a doubt that, -

as to each and every Count charged in the indict-

ment, this was not true and could not have hap- ;

‘pened in the same amounts as so charged, or for .-

which the ''complements" were made, In not one

instance was the cash.or "unsupported" part of

petitioner's deposit equal to or greater than the

amount purportedly converted on said day, or for

which the "complements" were made (T. 403, 561,

_ Exhibits 4-5, 8- 26). Thus, although if respon-

dent's theory that petitioner caused irregularities

"by this method be true, petitioner would have had

to have made these unsupported entries on the

days charged in the indictment, when the "comple-

‘ments" appear; this was proved to be untrue for

every single Count charged in the indictment,

‘In Exhibit 91, petitioner ssid eal aad con-

fessed:

"During the day of 4-5-65 I placed a de-

posit slip, without cash or check, in the

work of one of the tellers. This deposit

‘slip was to my grocery ‘store account and

' in the amount of something over $3,000.00,

I had put some good checks to deposit on’

my account plus a $3, 000. 00 amount which

wars not supported by cash or checks;

' This in effect gave my store account an

additional $3,000.00, "

* :

Again, respondent's documentary evidence proved

this statement untrue; showed that petitioner had

made a cash-deposit of only $2,530.00 on April 5,

1965 (T. 403); and it would have been impossible ;

for petitioner to have committed the offense in the

manner contended by respondent and. parportedly

‘confessed to by et

Thus, nine purported confessions, hand-

written by F,B,I, Special Agents Smith and Carltm, .

‘signed by petitioner prior’ tg consulting with an

attorney, and otherwise improperly taken (dis-

: cussed infra), were not only uncorroborated by

any substantial. evidence, but were affirmatively

shown to be untrue by records of the Bank intro-

duced by respondent,

In attempting to prove the.second'step, that

petitioner had made the "complementing" entries on

the proof tapes, respondent introduced evidence

that consecutive "complementing" entries were »

for each of the days in question (Exhibits 5, 10, 13,

16,19, 22, 25, 28, 30,33 and 36; T. 90) and petitioner

knew how to operate the proof machine (T. 42,

298, 659). However, the proof machine was. nor-

_mally operated by femiale emiployees (T. 42, 84,.

209) and were not in petitioner's custody (T. 242);

. everyone had access to the machine (T. 213), and

the subtotaling and totaling, -during which most of _

the "complementing" entries appeared (T. 42,

250) was usually done by Mr, Serrano (T, 237,

656-9), who had been in the Bank-over ten years”

(T. 199) but was not called as a witness, Although

- petitioner usually went to the machine to get his

- Sey

OT Re " “ sala tiad om , 4 .

daily cash totals, he was not ever seen at the

-machine on April 5, 1965 (T. 198). - No one ever

saw him.make any "complementing" entries such

as those in question (T. 242), nor did anyone

ever even see petitioner make any entries while -

the subtotaling and totaling was being done (T, 659),

interrupt anyone at any time while the machine

- _was being operated, interfere with or direct the

a ]

making of subtotals or complements (T. 255), or.

make or ask anyone to make an improper entry

of any kind (T. 315-16, 655-56). Thus, there. ?

was no substantial evidence ‘that’ he ever had even

an opportunity to make entries on the proof mach-

ine when no one else was present; yet there was

no evidence that anyone-ever saw him make a

"complementing" entry such as was herein invol-_ .

ved. Most important, respondent's chief witness

from the Bank,.Mr, Eastland, testified he did

‘not know who. made these "complementing" entries

(T. 242), but particularly as to April 5, 1965, it

is doubtful that petitioner did (T. 276-77).

. The purported confession, Exhibit 91, is

totally inconsistent with petitioner's having made

, the "complementing" entries , in that part of said

_ exhibit which reads:

' "The proof tape for the bank is: not posted -

until the following morning. Therefore,

the total-of the proof tape showed deposits

received on 4/5/65 of $3,000.00 more

than actually received. '"’ 4

: If the proof tape showed deposits received

at $3,000.00 more than what they actually were,

then, obviously,.no "complementing" (reducing)

entries were made by petitioner (or anyone else)

prior to the transcription of the totals from the

proof tape to the proof recap; ‘yet Exhibit 5 ‘shows .

_ such a complement was made. Again, petitioner

confessed to something the Bank's documents

introduced by respondent proved was false and »

could not have occurred,

~ As to this second step, then, the only sub-

stantial evidence introduced by respondent was

that petitioner had limited access to and knowledge

of how to operate.the machine (this was also true

as.to all other officers angd.many employees of ©

the Bank), and that these entries were made,

Petitioner's purported confession is inconsistent -

with etal ee of these entries, and all other

evidence in&cates petitioner did not make them

and did not know of them. Respondent did not intro

duce any evidence that the Bank's other employees

who had access to and made entries upon the

machine did not ; make these "complementing" en-

tries, rs

Perhaps most important, R, W. Eastland,

Executive Vice President of the Bank, testified

‘that all the documents introduced, . including the

proof tapes, proof recaps,.General Ledger cards,

deposit slips and adding machine tapes, did not

_ ©necessarily indicate irregularities or stealing had

occurred, but in fact were as consistent with no

shortage occurring as otherwise, and the suspicias

entries could be merely innocent corrections or

other entries (T. 275, 243, 258, 267-271). Carltm

appeared to agree, at least as to one date (T.607).

(On direct, Eastland appeared to testify there was

a shortage (T, 67). However, in light:of the above

testimony on cross- -examination, it is apparent

that the documents indicate that money was out of

the Bank's control if, but only if; the "complemeén-

ting" entries were fraudulent, The same is true

_. as to Agent Carlton's testimony (T. 380,395).)

Thus, there was no showing that the entries in

question were even erroneous, or, if any: error

was caused by the "complemenfing" entries, said

error was not an innocent error, To the contrary,

it was shown the Bank still had an unexplained,

overage on its books (T.661,662), and other un-

explained errors arose, even on the dates in

question (T. 229, 285, 287, 400).

As to the third step, that the "comple- —

menting" entries caused a false entry on the Gen-

eral Ledger, respondent proved that the amounts

posted to said Ledger were derived from the proof

machine (T. 37, 38, 63, 658). Miss Romero’kept |

the General Ledger (T. 655). .

In attempting to prove the fourth step, that

petitioner. had made the handwritten alterations on.

_ the proof recaps, respondent showed that the de- ®

mand deposit figure of said recaps had been in-

creased by the amount of the "complementing" —

entry on the proof tape for the day (Exhibits 4,9,

12, 15, 18, 21, 24, 27, 29,32 and 35), did not there-

fore correctly add up or "foot" (T.57), and that

petitioner and others had access to the sheets, (T.

26, 200, 660) The total figures posted to the re-

caps are obtained from the proof machine tickets

(T. 241) which were not peneeees by ene”

(T. 241).

‘Pasiiones' s purported confession, Exhibit

7 91, reads in part:

"I have observed‘a handwritten figure on ~

. the proof sheet reflecting total demand

deposits received on 4/5/65 in the amount

. of $109, 291,85, This figure has been

5 eNO ORE TE NOT EO

er by: from $112, 291. 85,"

Gembhes: since the sdak tape of said date, Exhibit

5, showed a total demand deposit of $109, 291; 85,

- and the proof sheet figure is transcribed ‘from the

proof tape, the original figure.on said proof sheet

must have.been $109, 291. 85 and Mr, Eastland

testified it was (T. 176-7), Thus, if petitioner

did decrease the total on the proof recap sheet,

‘ he could not: have made the "complementing" entry

on the proof machine, Further, this decreasing»

alteration is totally inconsistent with the pattern

shown and by which respondent contended the |

shortage occurred, It would seem likely-that when

petitioner signed the "confessions", not only did

he not know what he was signing, but he did not

even know how the crimes, if anys occurred,

much less committed them.

Further, said proof recaps were usually

prepared by and in the custody of Mr, Serrano

(T. 39, 200, 237-240, 656-9); and no one ever

saw petitioner make any changes on said sheets

(T. 265; 669), Miss Romero, employed by the

Bank for twelve years, never even saw petitioner

make any entry on the recaps (T. 657, 659),

Although Mr, Eastland could recognize petitioner's |

handwritten figures in the cash journal (T, 156),

he could not recognize the handwritten changes

on the proof recap sheets as being petitioner! Ss

es. ‘934 295-6).

bean most convincing was Mr, Eastlardds

testimony concerning the morning of April 6, 1965

when he was particularly watching for someone to

make a change on the proof recap. An increase

was made between 9:00 and 10:00 o'clock that

- morning. Petitioner's desk is immediately

adjacent to Mr. Eastland's, and Mr, Eastland only

observed petitioner, who was in the Bank all that

day (T. 33), go once to the vault, where the proof

recap was kept, Eastland then checked the sheet,

but no change had been made. By 10:00 o'clock,

prior to the completion of the bookkeepers' post-

ing to the individual accounts, the increase had

been made, although Mr, Eastland did not again |

observe petitioner return to the vault during this

time (T. 33, 177-9, 209, 277-287, 292-3), The

recap was decreased back to its original number

some time later during the same | day (T. 33, 52,

293). |

Respondent also introduced various adding

machine tapes which were at least partially run

by petitioner (Exhibits 7, 51, 52 and 53). One of

these tapes, Exhibit 7, was-run on April 6, 1965

and was supposed te reflect the total deposits to

‘demand deposit accounts the preceding day (T. 33,

46-48). The total on gaid tape was approximately.

$3,000.00 lower than the total of another tape

(Exhibits 7A,-67, T. 49-50, 330-334, 482) which

re-ran the sarne figures (T. 50), Assuming that

‘a proper inference could be drawn from this evi-

dence that someone fraudulently had caused a de-

duction-to be made on the former tape without

‘said deduction showing on said tape (T. 51) (al-

though there was no evidence introduced that the

_machine,was working properly, would record a

deduction, that the making of such a deduction

was not a normal bank function to account for ©

_ checks withheld, returns’, etc,) there was no evi-

dence that petitioner made the "no show" deduc-

tion or was present at the machine at all times

when the tape was being run, The tape, and

another tape of all the checks written on the Bank

which were received on April 5, 1965, were run -

PO I TAN LEEDS RY

17:

pursuant to a request of Mr. Eastland made to the

girls in the bookkeeping department (T. 33). After

the girls in the bookkeeping department started on

these tapes, petitioner inquired of Mr. Eastland Te

why the tapes were being run, and-petitiomer then _

went to the bookkeeping department and completed .—

the tape on the deposits, sending the girl who was

working on it at the time to help out with the tape

of the checks (T,.34), Petitioner then brought

the tapes to Eastland and said ''They were all in

balance." (T. 34) Thus, although Eastland tes-

- tified that Exhibit 7 was "prepared by Mr, Zamora!’

(T. 47), his own testimony shows that not all, but

only | some of the tape was prepared by petitioner.

' Farthes, ‘respondent did not prove that,

even as.to that portion of the tape which petitioner

ran, he did not leave the machine during his run-

ning of said portion, or that no one else had access

to his machine during said time. (Respondent

necessarily contended that petitioner made the

"complementing" entries in question, In order

to do so, petitioner would have had to "sneak

in" these entries (assuming this was possible),

since someone else was operating or in charge

of the machine at the time. The exact same cir-

cumstances, however, would allow a person other

than petitioner to make the subtraction on the ad-

ding machine, Since other persons ran part of

Exhibit 7, the likelihood of a "sneak entry" by one

other than petitioner is much greater.) Although

- there was no testimony that anyone saw petitioner

‘make these’ "no show" deductions, respondent

- introduced no proof that petitioner was alone at

any time during the running of the tapes. Thus,

at most, respondent proved that petitioner or

someone else fraudulently made a "no show" de-

duction on this tape. Since other persons ran part -

tee

“of the adding machine tape (T. 34), and, as dis- 4

cussed supra, petitioner probably did not make the

"complementing" entries on the proof tapes, or

hand-written changes on the proof recaps, and it

was not proved he did, it is most reasonable to be-

lieve that a person other than petitioner also made

the ''no show" deduction on the adding machine

tape. Although the other Bank employees were

readily available (Mr. Serrano was in Santa ‘Rosa, tes

in charge of the Bank, at the time of trial. (T.657),

respondent did not even present any evidence that

. said employees did not make this ''no show" deduc-

tion or that petitioner was ever alone at the mach-

ine, 1

Respondent further introduced three other

adding machine tapes. (Exhibits 51,52,53), pur-

portedly totaling the balance in the individual de-

mand deposit accounts for January, February, and

' . March, 1965, respectively, for the trial balances

of said months, Said tapes were supposed to bal-

ance with the General Ledger control account, and

' the inference probably could be drawn that some-

one had fraudulently made ''no show" deductions on

said tapes in the amounts ‘of $248,400 for January, _

$252,400 for February, and $254,400 for March,

- (Only $38,000.00 was charged in the indictment,

T. 406-418), However, the same. matters rele-

vant to the April 5, 1965 tape (Exhibit 7) are rele-

- vant to these tapes, and respondent similarly

proved, at most, that either petitioner or some-

one else made a "no show" fraudulent subtraction

on said tapes,. particularly since the tapes were in

two ‘pieces (T. 160-173). In addition, handwriting

of-other than petitioner was on some of said tapes >

(Exhibits '51,52,53, T. 161, 164), and it was not

‘shown that the Bank had a shortage in the large

sums reflected by the discrepancies in said tapes,

or said amounts had anything to do with the amounts

charged in the indictment,

Respondent also introduced the cash journal

for each of the days in question, which was usually. |

kept by petitioner (Exhibit 50, T. 298).. On each

of the days in question, the closing cash balance,

as reflected by said journal, was less than the

total of the starting cash balance, as shown by

said journal, plus the net cash increase for the

day as reflected by adding machine tapes run off .

the proof tape (Exhibits 54-64, T. 300-310), but

not taking into account the deduction reflected by

‘the ''complementing" entry (T. 335-404). However,

if said ''complementing" entries were proper, as

Mr, Eastland said they <ould well be, the cash

journal figures would properly reflect the legiti-

mate cash position of the Bank (T. 556-7), The >

figures in the cash journal were not checked daily. —

against the actual cash in the vault (T. 246), Ac-

tually, according to respondent's theory of the

case, the cash journal kept by petitioner at all

times correctly reflected the cash in the Bank,

or under its control, .

The figures petitioner placed in the cash

journal were taken from the figures submitted to

him by the tellers at each of the windows (T. 247).

There was no evidence-of any discrepancies in the

tellers' figures and what petitioner entered in the

cash journal, that petitioner or anyone else tam-

pered with said tellers' figures, or that peti-

' tioner made any errors in accounting for the .

- cash in the safe (T. 247), To the contrary, it

was shown that although there were many alter-.

ations and complements on the Bank records not

kept by or in the custody of petitioner, there were

very few changes, on the cash journal which he

ee ee ee

kept and had custody of and none of his changes

indicated any irregularity (T, 243-248).

Respondent also showed that on or near four

‘of the dates in question, as previously set out supm,

petitioner wrote chec ‘s for relatively large amants,

and on three of said dates, deposited relatively

large amounts of cash in his grocery store account,

One of these occasions dealt with his buying of an

automobile as a graduation present for his son

(T.. 318-321), which car had been ordered four to

five weeks previous thereto (T. 323). In none of

these four cases, however, did the ''unsupported

by|checks" or cash portion of ‘said deposit equal

or.\even approximate the amount of the purported

irregularity for said date, but in all’cases it was

substantially lower. - No evidence was introduced

that indicated total cash deposits from the store

were not in the actual amourits indicated. On the

remaining seven‘instances, there were neither

large checks nor large deposits on the days in

question (T. 403,561, Exhibits 4,5,8-36),. Yet,

respondent contended that on the days in question,

if any crime occurred, a corresponding amount ©

was credited to an account of petitioner without

a supporting deposit therefor, .The documents

' introduced by respondent conclusively show that

petitioner did’ not ¢redit the amounts in question

to his account,. Thus, ithe evidence introduced by

respondent-‘not only does not afford substantial |

evidence that petitioner caused any of the irre-

gularities charged, but affirmatively proves that

he could not have done so,

Respondent introduced no ) evidence that

‘petitioner spent large amounts of cash, but, to

the contrary, petitioner made his purchases by

‘check (T.. 322,666). Petitioner.and his family ran

a grocery store, and would keep relatively large |

amounts of cash on hand. When the occasion for

a large expenditure or investment would arise,

this cash on hand would be deposited and a check |

written for the purchase. This.was done on the _

three occasions in question when large deposits

were made (T. 666-670), Petitioner borrowed ~

money cs a the Bank (T. \624- 25). |

Finally; res pondent cae lt petitioner

had a nice home (T. 682-683), and other assets,

mainly consisting of an interest in a grocery store

(T. 131, 200, 210, 322), a small\ranch or farm

(T. 210, 681), and a small trailer court (T. 667).

However, petitioner, in addition to his Bank sal-

ary, made a good income from said grocery store, |

in which his wife worked seven days a week and

his children ; aan part-time (T. 663-4), and.

had some incdme from his other assets (T. 667).

Many of his assets. were bought through time pay-

. ments or loans (T, 674-5).

Respondent also introduced a certificate

from the F,D,1,C, (Exhibit 1) which was "con-

_ trolling" on August 10, 1965 and issued on Sept-

ember 21, 1950 (T. 27- -29), testimony that these

are only reissued when a change ‘in the cover-_

age occurs, and evidence that the Bank was a

‘national bank pursuant to a charter from the Trea-

sury Department (Exhibit 2) which was:issueéd on

October 10, 1922 and was’"in existence"! on August

(10, 1965 (T. 30-21). ce tong

On the basis of. the Siwsnielin evidence and,

apparently, mainly on the basis of the purported

confessions and admission of petitiofter, the jury —

verdict of guilty was returned,

As to said purported confessions and admis-

sions, the testimony was that prior fo petitioner's

return from lunch on April 8, 1965, F,B,1,: Spe-

* cial Agents Smith, Carlton, and Norton had been

investigating reported/irregularities at the Bank,

and had béen shown various items, including an

adding ‘machine tape /of demand deposit accounts

‘ which showed a "considerable difference" from the.

General Ledger control account (T. 327, 584-6), —

and Exhibit 7 (the "doctored" April 5, 1965 adding .

machine tape) which they were told was entirely

run by petitioner (T. 330, 334, 482), (No inves- ©

‘tigation was ever made as to whether petitioner

ran the entire tape (T. 334), or whether the "com-. ,

plementing” entries could be a proper or innocent

entry (T. 605), No evidence was introduced sub-

stantiating what was told to the F.B.1.) There- |

‘fore, at all material times on this date, petitioner

was the prime.suspect, and was believed to be

‘involved in the irregularities herein alleged even

prior to his arrest (T. 427, 444,-567, 570),

Shortly after 2:00 p.m. on said date, petitioner

returned to the Bank from lunch, and was accos-

ted by F,B.L, Special Agent Smith, who introduced .

himeelf, disclosed who he was, and "asked" peti-

tioner to accompany him to the Bank's lounge,

- where two other F.BVIL Special Agents, Carlton

and Norton, were waiting (tT. 422, 501, 437-9,

456): .

The "interview" began at 2: is p.m,, and-

. between 2:18 p.m, and 2:19 p.m. petitioner was

advised that the men in the room were Special

Agents of the F,B\J, (T. 511, 534, 563), Between

2:19 and 2:20 p,mjJ, petitioner was told that the

Agents would like to "talk" to him and would appre-

ciate his: cooperation, although petitioner did: not

have to make a statement, (He was not told he

‘ advised of his rights until he was brought before

23.

did not have to answer questions or discuss the

matter (T, 565, 569).) no threats, promises or.

‘duregs would be used; that anything petitioner said

could be used against him in Court; and that peti-

tioner had the right to consult with an attorney or »

anyone else (T, 423, 433, 441, 448-9, 511-514,

535, 563), Petitioner was not then under arrest

(T, 442-3), anid he was not again so warned or

the U.S, Commissioner (T. 443). Immediately

after the introduction and warning, but prior to

_ being advised of the nature of the inquiry, peti-

tioner consented to being "interviewed" (T, 433-

. 36, 443-4, 510, 569). Petitioner was then ad-

vised of the nature of the investigation and the

amount involved (T, 423-4, 427-8), Although |

petitioner was then considered a prime suspect _

_ and believed guilty, he was not so advised, but,

to the contrary, petitioner was told they "didn't

know whether he was involved" nor "who was

responsible" (T, 423, 426, 427, 437). Petitioner

was not advised of the penalties involved if he ~

were guilty of causing the purported irregularities,

. his right toa jury trial, or anything else except

_as previously mentioned (T. 426, 441, 481-2,

587). Furthermore, the Agents made no inquiry

as to whether there was an attorney in Guadalupe

County (in which Santa Rosa is located) whom .

petitioner could consult with (T. 583), and, in .

fact, there was no resident attorney in said county

“(T. 613), and petitioner did not consult with an

attorney (except the Commissioner) at any time

during the day, :

‘The Agents then began questioning petitioner

in a manner that not only easily lent itself to, but

which was obviously designed for, and for the pur-

pose of, eliciting incriminatory statements (T, 445),

a ee eee ee ee ee

; ceed

~ Although Carlton testified the "interview" was also

_.. for the purpose of investigating the case, to find

-out if, additional persons were involved, and to

develop. evidence of any irregularities by anyone

in the Bank (T, 445, 482-3), Carlton's. descrip-,°

*. tion of the "interview, | added to the fact that ‘~

petitioner was the prime and only suspect at the

time of said "interview, "leaves no doubt as to

aa) nature and purpose, In this regard, ‘Carlton

\ testified: ce :

; ne Bigbee) Sow, tell. me what.

._. Was stated between 2:20 'p.,m., and 2:45

SP. m,., to the best of your recollection,

~ 4 a

A: Well, all right, 5a, Pats, Sean”

. Only thatshe first wate he didn't ,

know what we were talking about;.he must

be: dreaming;and I showed him:-these items

and told him thére was a $3, 000 difference

'. . in these tapes; alsc’a $3,000 complement. °

: or reduction on the proof-tape, and that — .

7 there was a $3,000 irregulatity certainly ~

indicated at that time, and who céuld have

done it; did he: fo it, and so forth. That.

’ was the nature of that conversation, at »

2: 00 -- (T. 430). i 4

A, Well, he was ‘saying at first, that he.

didn't know what it was, of what it was all

about, until 2:45 p.m., andl continued say-

ng that-I thought*that if he made this tape

and had a plug of $3,000 in it, left off, that

— he must know what I was talking about; that:

'* that could not be an accident, and it was

verified by the reduction on the-proof tape,

¥ and on the proof recap sheet which had been

— chitnged. «. (7, & 1).

a ee ee

Petitioner first answered the Agents' ques-

tions by denying he knew anything of the matters

they were talking about, and said, "I must be

dreaming.'' Twenty-seven minutes after the inter-

view began, at 2:45 p.m., petitioner first admitted

that he had caused a false entry on the General

Ledger for April 5, 1965 (T, 429-31, 535-8),

Petitioner then told the Agents that he had

concealed large.irregularities from the Bank Ex- ©

- aminers by-either running for said examiners and |

altering the tape of balances on the demand deposit

ledger cards or removing enough ledger cards to

give a total that would balance; that the irregular--

. ities. had occurred over the. past twelve years and

were entirely his responsibility; that the amount of.

said irregularities was $257,400 instead of $264,000.

_as they had’ previously been told; thatno one else

_knew of the irregularities, and that the demand

deposit. control figure was always under the indi-

vidual ledger balances by the amount of his short-

ages. at.the time ( T..535-541).. Petitioner

further stated that "on the days that he was taking

Bank funds, he would deposit it," and that he

"never. just went into the cash-drawer and took

cash in his hand out of the Bank," that "whenever

' he would take funds he would deposit them to his

account, and never take money out of the Bank"

(T. 540, 560); (Petitioner also told Carlton that he

could put a ticket for cash in a teller's work in hi

absence, without depositing said cash, Carlton”

added that petitioner did not have to do this on the -

dates an irregularity was made (T. 576).) Yet,

Carlton testified, and the documents introduced |.

by the Bank proved, that this never occurred in

connection with a single one of the eleven Counts

‘charged in the indictment, although Carlton

. ene

* .

volunteered it did occur on occasions other than ;

those charged in the indictment (T. 560-1, 572, ©

- 576-7).

During the "interview" which lasted until .

3:12 p.m. (T. 446, 552), the only persons present

were petitioner and ‘the three Agents, except for a

‘few minutes when Mr, Eastland brought in some.

coffee (T. 457, 588), and the doors to the Bank's

lounge were closed (T. 441, 445). Throughout

the proceedings, petitioner appeared to be "'be-

‘wildered" (T. 508, 638). os

_ About 3: 12 p.m. petitioner told Mr: Fast-

land that he was "sorry," that this was awful, and

asked Eastland to look after his farhily (T. 184,

191). However, this was said in the same eneint

as when one apologizes for an innocent error (T.

215-17). Shortly thereafter, at petitioner's re-

«+ quest he was taken to his home by Agents Smith -

and Norton'(T, 468, 502, 627).. By this time,

petitioner had been placed under arrest.and was in

custody for the remainder of tHe day (T. 469- 70,

543, 629). ;

Upon petitioner's arrival home, his wife

asked him and Agents Smith and Norton what was

going on, The Agents told her petitioner might ,'

want to talk to her, but when he did not answer,

they told her. they were investigating an irregu-

larity at the Bank (T. 502-3, 620-21), Petitioner

was not, however, warned again‘as to his constitu-

tional rights (T. 676). There was disputed eviderme

_as to whether petitioner was physically abused

during this period (T. 515-16, 521-4, 622-3, 634-

637, 671-3, 684-9, 694-703), but;~in any case,

petitioner was not-permitted to speak to his wife

alone despite her request, Petitioner did not act

‘ . @

a —

’ normal nor like himself (T. 507,°521,.541, 635,

640, 671).. After making a telephone call to his

‘brother, which the Agents also insisted on over-

hearing (T. 503, 507, 516, 622), petitioner and

said Agents returned to the Bank, arriving at

3:44 (T. 464, 503, 542, 590, 623). It was not.

until their return from petitioner's home that any

attempt was made to contact a. United States Com-.

missioner, which was done sometime between

3:44 and 4:02 (T. 542, 593-4), at which time

petitioner and the three Agents left for Tucumcari,

where the nearest Commissioner resided (T, 465,

503, 542-3, 591, 631). During the trip to Tucum-

cari, Carlton and Smith, who were alone inacar -

with petitioner (T. 465), questioned him exten-

sively’ concerning the general mechanics of the

purported irregularities, as to just how the records

were manipulated, how things occurred, how.long

they were going on and whether Anyone else was '

involved, . There was quite a bit of talking, Carl-.

ton asked petitioner a lot of questions, and peti-

tioner was told by the Agents that they did not

believe he had told them everything and he was

asked todo s0, Petitioner was apparently reluc-

tant to answer questions; he ‘answered some, and

to others he replied, "I will tell you later," (T.

466, 471, 473, 504, 506, 516-18, 596, 623, 640-

641) | a, ar

_ Upon the arrival of petitioner, Carlton and . -

Smith at the office of Commissioner Rowley at _

5:20 (T, 544), the complaint, relating solely to

‘April 5, 1965; was prepared, and at 5:26 peti-

tioner's arrdignmient commenced, Rowley had

known petitioner off and on for eighteen years,

During the arraignment, Rowley asked petitioner

if he had an attorney and said that if he could not

afford to hire one, he could have one free of cost,

to which petitioner replied he did not need an attor-

'..meys he was guilty, and he had already done every-

thing he could do to anybody. Rowley then advised

petitioner his function was not to take a plea, but

only. to advise him of the charge and his right to an

attorney. Rowley then advised petitioner of his

‘right to a preliminary hearing and set bond, to

which petitioner replied, ''Who would make bond

_ for me?" Petitioner was only advised that a Natio

al: Banking Act violation was involved, and was not

advised of the penalties involved, his right toa

jury trial, the elements of the offense, thathe .

should exercise great caution in executing a state-

aonty or anything else except as heretofore stated,

After jieealgumeni, — Agents went into

another: room to prepare for the taking of written

statements and to make arrangements with the

jail. Rowley then conversed alone with petitioner

for ten or fifteen minutes, placed a call for peti-

tioner to his wife, principally in connection with

making bond, and told petitioner that he néeded a

good lawyer (T, 465, 490-4, 497-8, 545-7, 609-

617, 625). Throughout the day's proceedings, -

although petitioner did not appear to be physically

‘abused, physically or mentally incapacitated, and

‘appeared to know what was going on, he appeared

during said time, according to Agent Smith, to be.’

bewildered and confused (Carlton disagreed) and,

according to Rowley, like a man ina state of .

shock (Carlton again disagreed), It was undis- —

puted that petitioner was dejected, upset, ‘shook,’

like a man that might have come to the end of

. the world, surprised, very depressed, and

"worried (T. 497; 499, 507-8, 577-8, 615, 618,

- 638, 644).

At 6:00 p.m. » petitioner was taken into

another room where only he and the Agents were

present, Petitioner was again advised of his rights,

but not as to the penalties.involved, elements of

the offense in question, his right to and the nature.

of a jury trial, etc, (The effectiveness of this |

advice, particularly as to his right to speak to any-

one he wished, is somewhat doubtful since every

time he had tried to speak to someone that day,

‘he was not allowed to do so in private.) Petitioner

agreed to sign statements, but not write them, so

two statements were then written by the Agents in

their own words, Exhibits 9l and 92, After the

- statements were written, they were read by peti-

‘tioner, then read out loud to him, and, .after ini-

tialling corrections, he wrote the last paragraphs

himself and at 6:45 p.m. signed the statements.

Two statements were taken because the second

statement, Exhibit 92, included matters petitioner

was not then charged with, ‘and on which there had

been no appearance before the Commissioner (T.

465-8, 477, 480-3, 485-8, 545-8, 551-6, 639)...

Petitioner was taken to jail at 6:55 p.m, (T. 547)

' On April 10, 1965-Eastland called petitioner

_ in connection with some work that was being done _

at the’ Bank, and asked him if he knew the where-

abouts of certain documents (not material to the

dates herein involved), Petitioner replied that

with all he had done, he had\never destroyed any

records, and that he was sorry he had caused so

much trouble and work, In fact, the documents

in question had been ordered destroyed by Mr.

‘Hauser (T. 186, 189, 192),

At the conclusion of the trial, petitioner and

/ . respondent requested that various instructions be

submitted to the jury, many of which were denied

\ by the trial court,.and petitioner objected to many

30.

. of the Co = instructions which were submitted

to the jury (T. 707- ‘ahaa -

During the trial of said cause, the points

herein urged for consideration were préserved

for appeal through various \objections, exceptions, -

and motions, including motions for judgment of

acquittal and mistrial, all of which were denied

-(T, 407-410, 460-1, 507-29, 650-54, 692-3, 705-

707). On August 18, 1965 petitioner filed his

- written Motion for Judgment of Acquittal, Or, In

the Alternative, For a New Trial (R. 19), and an

Order denying said motion was: entered on Sept-

ember 2, 1965.(R. 21). The points raised in said

motions were substantially those which are herein

presented to this Court,

- On September 3, 1965 petitioner was sen-

tenced to a term of five years on each and every

of said eleven Counts, said sentence to be served

as follows: Counts I, Il and II concurrently with

each other; Counts IV, V and VI concurrently with

each other and consecutively to Counts I, II and II;

-Counts VII, VIII and IX concurrently with each

other and consecutively to Counts IV, Vand VI; |

and Counts X and-“XI concurrently with each other |

and consecutively to Counts VII, VIII and IX, all

subject to 18 U.S,C, 4208(a)(2) (R. 22, T, 794-

-798),° (a total of 20 consecutive years), On the

same date, petitioner's Notice of Appeal was filed

(R. 23). Thereafter, petitioner filed his Cost Bond

on Appeal (R. 24), his Appearance Bond on Appeal |

(R. 27), and his Designation\of Record on Appeal —

(R. 37). Respondent filed its Designation of Addi-

tional Portions of the Record (R. 39), and, after

. various orders: extending the time therefor (R.

33-36), this cause was docketed in the Court of

Appeals, Tenth Circuit, on May 16, 1966,

. sion,

All emphasis herein is supplied, unless

otherwise indicated,

THERE ARE SPECIAL AND IMPORTANT

REASONS FOR THE ALLOWANCE OF THIS WRIT

I, Evidence of criminal acts other

than those charged in the indictment,

The opinion and judgment of the Court of

Appeals in-this case has decided this federal ques-

tion in conflict with applicable decisions of this

Court and with other Courts of Appeals, and sanc-

tions so far a departure by a lower court as to call

for an exercise of this Court's power of onperss~

Throughout the trial herein, reanondent

repeatedly introduced into evidence, over peti- |

tioner's objections, matters relating to purported

crimes other than those charged in the indictment,

so.that petitioner was effectively tried and senten-

ced for irregularities of $257,400 instead of the

$38,000 with which he was charged. This evidence

included certain adding machine tapes purporting

_ to show discrepancies of approximately $250,000

and testimony relating thereto (Exhibits 51, 52

' and 53, T. 159-173), testimony of Carlton regard-

ing another adding machine tape (not even intro-_

- duced into evidence) reflecting a $250,000 discrep-

ancy (T. 327), Carlton's testimony that although

. petitioner's confessions: were false as to each and

every date charged in.the indictment, it was true

as to other dates not charged (T. 560), and, per-

haps most damaging, petitioner's purported oral

and written confessions admitting to causing irre-

gularities of $257, 400 over a twelve- -year period

(only a two-year period was charged in the indict-

ment) and testimony relating thereto (T. 538-41,

552-56, Exhibit 92),

The only kasis for the admission of this

evidence by the trial court was as to proving the

_.intent of petitioner as to the acts charged in ‘the

indictment. The Court's Instruction No, 18 so

stated, and respondent did not object to same

(T. 777, 759). Yet, the Court of Appeals herein

. sustained the admission of this evidence on the

' basis that . :

"This evidence was of other acts of

embezzlement in the course of conduct.

showing a series of related transactions

which diverted funds of the bank to

Zamora, a a ,

The evidence of crimes ain than those

charged in the indictment-introduced herein was of

very little probative value, since there were al-

ready before the jury charges of éleven separate

offenses within a sixteen-month period, as to all

of which respondent introduced basically the same

evidence, contending that all eleven alleged of-

fenses occurred in exactly the same manher, Thus,

any evidence that petitioner was responsible for

other similar crimes of a much greater magnitude

than those charged in the indictment was, at most,

cumulative of that evidence already introduced,

_ and served no real peas except.to inflame the

jury.

Even after extraneous evidence has been

determined to be within an exception to the gen- |

’ eral exclusionary rule, there must be a weighing

” v rp

- . « ae

33.,

process performed, whereby it is determined |

whether the probative value of the evidence out-.

weighs the evils of this type of evidence, As

stated in. United States v.-Sorrentino, 78 F.Supp.

425 (1948), aff'd, 175 F.2d 721 (3rd Cin, 1949),

cert, den, 388 U.S. 868, 70 S.Ct. 143. (1949):

"The admissibility of other offensés

is determined by deciding whether what

it will contribute rationally to a solution

of the problem is more than matched by

the chance that it will divert the jury from

the facts which should control their ver-

dict."" (78 F.Supp. at 431)

To the same effect is Lyda.v. United States, 321

F, 2d-788 (9th Cir. 1963) where the court reversed

a conviction because the prejudicial effect of ex-

trarieous evidence outweighed it probative. value.

The weighing process required must, of

course, be viewed in light of the danger of this

sort of testimony. As stated by this Court in

Michelson v. United States, 335 U.S. 469, si S.Ct.

213 (1948), L

"The State may not show defendant's

prior trouble with the law, .specific |

criminal acts, or ill name among his.

neighbors, even though such facts might |

logically be persuasive that he is by pro-

- pensity a probable perpetrater of the crime.

The inquiry is not rejected because charac-.

ter is irrelevant; on the contrary, itis

said to weigh too much with the jury and

to so overpersuade them as to prejudge one

with a bad general record and deny him a

fair opportunity to defénd against a -

"particular eis, The overriding policy

of excluding such evidence, despite its

admitted probative value, is the practical

experience that its disallowance tends to

prevent confusion of issues, unfair sur-

prise and undue prejudice,"' (335 U.S. at

_ 475, 476, 69 5. Ct, at 218, 219)

Thus, even if the evidence of crimes pee than

those charged in the indictment in this cause were

otherwise admissible, their slight probative value,

coupled with their exceedingly prejudicial and in-

flamatory nature, render their admis sion rever-

sible error,

ne addition to the foregoing reasons why

\ said evidence should have been excluded, the intro

‘duction of some or all of said evidence violated

Other well established principles of law,

First, said evidence. was improperly ad-

mitted because it involved purported crimes com-

“mitted ‘too remote in time to the offenses char-

ged.. As stated in Paris v. United States, 260

Fed, 529-(8th Cir. 1919), in reversing a nancotic

conviction because evidence was introduced of

possession of narcotics nine months prior to the

offense in question:. : ,

e :

"where the criminal intént of the

defendant is\indispensable to the proof

of the.offense, proof of his commission

of other like offenses at about the same

time that he is charged with the commis-

sion of the offense for which he is on trial

may be received to‘prove that his act or

acts were not innoceht or mistaken, but

constitute an intentional violation of the

eaten! alee aca

“ "law." (260 Fed. at 531)

To the same effect; and clearly in conflict with _

the instant catise are Boyer v. United States, 132

‘F.2d 12 (D.C, App. 1942); and Lloyd v. United

States, 226 F.2d 9 (5th Cit 27991-

‘ The ssa of purported other crimes

was. also inadmissible and in conflict with de-,

cisions from other: Courts of Appeals in that they

were not sufficiently similar acts to those charged

‘in the indictment, in that they dealt with cnimes

committed in a manner other than those charged

in the indictment were purportedly committed,

‘See Flood v, United States, 36 F.2d 444 (9th Cir.

1929); Lyda-v, United States, 321 F, 2d 788 (9th

Cir. 1963); United States v. Beno, 324 F, 2d. 582

(2ndCir, 1963),

Additionally, ‘the evidence of other crimes’ |

should have been excluded because of the failure of .

any integral connection of said extraneous crimes

and those charged, and is thereby in conflict with

decisions of the Courts of Appéals for the Ninth

_ Circuit in Erwing v, United States, 296 F.2d 320

(1961); the Eighth Circuit in Niederlueckeé v..

_ United States, 21 F. 2d 511 (1927), Kraft v. United

States, 238 F, 2d 794 (1956), and Hartman v.

United States, 215 F.2d 386 (1954); and the Third

Circuit in Suig ve United States, 33 F.2d 820°

(1929).

-* It would appear that extreme caution must

be exercised as to admission ofa defendant's self-

incriminatory statements of prior offenses, The

decision of the.Court of Appeals herein seems in

conflict with other decisions excluding this type of

evidénce,. Marshall v.. United Sentes, 360 U.S. 310,

~ 79 S,Ct. 1171 (959); Sang Soon Sur v, United

States; 167 F. 2d-431 (9th Cir. 1948); Labiosa v;

~ Government of the Canal Zone,-. 198 F.2d 282

(5th Cir. 1952); United States v. Jacangelo, 281.

F, 2d 574 (3rd Cir. 1960); and, particulérly, Helton /

2 ve United States, ‘221 F.2d 338 (5th Cir. 1955),

‘In sugmasy, “ pithough petisionsy was char- -

ged. with the commission of eleven crimes over a

gixteen™ “month period involving $38,000, he «was

effectively tried and convicted for crimes invol-

--ving $257,400 over a twelve-year period, In the

absence of some’ overwhelming necessity, and

unless said evidence pragetty is included within

the intent exception to the! generat exclusionary

'-rule, the admission of such extraneous evidence

is reversible error, . There is no such justifi- .

cation or necessity in this case, andthe sub- |

stantial prejudice and detriment to petitioner

‘Caused by’ said evidence. dictates reversal herein,

‘a. Introduction -of self-incriminatory

Par wae statements.

is The Opinion and futement of the Court of

Appeals’ in this case has decided this federal

question in conflict with applicable decisions

of this Court and other Courts of Appeals.

tA. Failure to promptly arraign petitidner,

9 Pik. J

Respondent's witnesses testified that al-

though the petitioner was brought into a closed

“_ room with the three F,B,I, agents and "advised"

. of. his right to remain silent at 2:18 p. m, on

: April 8, 1965, at which time the "interview"

ey a

began, petitioner denied any connection with any

criminal acts until 2:45 of said date, at which time,

’* after certain trickery, cajoling, prodding and

"cross examination" by said agents, certain ad-

missions or confessions were made by petitioner.

Although no formal arrest had been made, the

petitioner was then the prime.and only suspect,

Said interrogation: was designed and easily lent

itself to the purpose of eliciting statements from

petitioner of an incriminatory nature and peti-

. tioner was not at that time represented by an

attorney, Further, said interrogation continued

éven after petitioner had been placed under ar-

rest, despite petitioner's relu€tance to participate.

No attempt was made to bring petitioner before a

- United States Commissioner until after he had ‘

made purported self-incriminatory statements,

and he was not brought before any United States

Commissioner until 5:20 p.m., some three

hours after the interrogation began,

Rule 5(a) of the Federal Rules of Civil

_Procedure provides in material part:

"An officer making an arrest under

a warrant issued upon a complaint or

any person making an arrest without a

warrant shall take the arrested per-

son without unnecessary delay before |

the nearest available ¢éommissioner or

before any other nearby officer empow-

ered to commit persons charged with

_ offenses against the laws of the United

States. g

. ae

The decision of the Court of Appeals hoveis

is directly in conflict with the opinions of this Court

in‘McNabb v. United States, 318 U.S. 332, 63 S. Ct,

[As

“

608 (1943); Upshaw v.° United States, 335 U.S.

410, 69 S.Ct, 170 (1948); and Mallory v. United

States, 354 U.S, 449, 77S.Ct. 1356 (1957). The

confessions herein involved were not: made

"promptly and spontaneously" as in United States

Vv. Mitchell, 322 U.S. 65, 64S.Ct. 896 (1944),

Upshaw appears particularly controlling

herein,- since the defendant therein, at the time of

. his questioning, although formally arrested was.

actually merely a suspect, since there was insuf-

ficient evidence at ‘the time "'to hold" the defendant.

As stated: by this.Court,in Mallory 3

_ "Provisions related to Rule 5(a). contem-

plate a procedure that allows arresting

officers little more leeway than the inter-

val. between arrest and the ordinary ad-

ministrative ‘steps required to bring a ~

suspect before the nearest available magis-

trate," (354 U.S. at 453, 77S.Ct, at

71359) .

After stating that a suspect must be arraigned "as

quickly as possible," this Court therein said a

. person,

"...is not to be taken to police head-

quarters in order to carry out a process

of inquiry that lends itself, even if not so

designed, to eliciting damaging state-

ments...." (354 U.S. at 454, 77S.Ct, at

1359) By ae:

Applied to the incts herein, Mallory it is conclusive

in determining that petitioner was being illegally

detained at the time his first purported confessions

Prades to Acs

8 : = 39

were made, \Petitioner was not taken to a magis-

trate ''as quickly as possible," but to the contrary,

the was questioned extensively after he denied

any connection with the purported. crimes in-ques-

tion, and said questioning undoubtedly lent itself

''to eliciting damaging statements,"' The admis-

sion of said statements into evidence was, there-

fore, orrer.

The decision of. the Court of Appeals herein

is also in Conflict with | many recent cases of-the

Court of Appeals for the District of Columbia,

inctuding Alston v, United States, 348 F, 2d 72 Son.

(1965); Greenwell v, United States, 336 F.2d 962 °°

(1964); and Spriggs v. United States, 335 F, 2d

283. (1963).

In the instant cause, petitioner was not,

at the time ‘he made his initial oral*statements,

technically uhder arrest, He was under arrest,

at the time the oral statements were. "coaxed".

from him during the automobile frip to Tucumcari,

Furthermore, prior to petitioner's signing of the

_ written statements, he had only been arraigned ~

by the Commissioner as to one purported offense,

alleged to have occurred on April 5, 1965; yet,

Exhibit 92 purportedly goes to many other pur-—

ported offenses which petitioner was never ar-

raigned for, .

All of petitioner’ S purportedly self-incrim-

inatory statements, oral and written, were clearly

obtained in violation of said Rule 5(a), including -

the oral statements made in the Bank prior to |

formal arrest, At the time said oral statements

were made, petitioner was the only Suspect, and

was believed to be guilty by said agents at the

tirhe in question; yet he was led to believe other-

. eT ee ee ee wmf

wise and the agents then attempted to obtain a con-

-fession, After a person has been placed under

arrest, he is at least alerted to thé danger and —

_feality of the situation, Cana person, suchas .

petitioner, who is deliberately deceived into be- ;

lieving he is not suspected of any crimes be en--

_ titled to any less protection than one formally

arrested? °*

_ _ Obviously, in’ the instant cause, the agents

' delayed making a formalkarrest to avoid the dic-

tates_of said Rule 5(a). Suchan evasian of said.

rule would greatly rhninimize, if not completely

negate, its protections to an accused, particu-

_larly in a case such as the instant cause, Fur-

‘ thur, as discussed infra, the rights to counsel

of a criminally suspected person attaches at the

stage of the proceedings here in question, It is

certainly inconsistent to believe that a suspect's

right to prompt arraignment does not sq attach

seater tis

B. Violation of petitioner's right to counsel

The Court of Appeals herein impliedly °

recognized that certain. requirements as to confes‘-

sions as set forth by this Court in Miranda v.

Arizona, 384 U.S, 436, 86.S.Ct, 1602 (1966) |

were not met; namely, petitioner was not advised

of his right to representation by an attorney during

questioning, nor was he advised. of his right to

free counsel-if unable to afford counsel, The Court '

of Appeals herein held these requirements not

applicable to petitioner by virtue of Johnson v,

New Jersey, 384 U.S. 719, 86S.Ct, 1772, What- -

ever be the merits of denying application of Mir-

anda to cases finalized prior.to the decision, it

“ry

. J

‘ay

‘is difficult to see how a different rule can apply i in

‘Miranda than in the instant cause, particularly -

when it be considered that if it were not for the

- Many extensions herein necessary for the purpose:

of preparing. the transcript, this cause may well

have been decided prior to or simultaheously with

- Miranda, Petitioner submits that the holding of

this-Court in Johnson denying application of the

Miranda rule to cases already on appeal,'as op-.

posed to post-conviction proceedings, -is totally

inequitable, does not afford equal protection of

the laws, haath is without legal justification, ,

Even if the Miranda rule is not applicable

.to the instant cause, this would only mean that the-

eliciting of petitioner's statements herein was not |

in violation of his Fifth Amendment right against

self-incrimination, That his Sixth Amendment

. right to counsel was violated has been established

by rulings. of this Court prior to the commence-

ment of trial herein,

5 °

' Petitioner certainly had a right to counsel

at, the time of the interrogation, Escobedo v, State

of Illinois, 378 U.S, 478, 84S.Ct, 1758 (1964)..

The only evidence of any waiver of said

right to counsel as to the oral statements made by

petitioner to the F,B,I, agents at the Bank or in

- the autornobile was the one-minute stock warning

given to petitioner by said agents twentysix min- s

utes prior to any purported self-incriminatory

statements were made, As to the written state-.

ments, Exhibits 91 and 92, there were additionally

the short arraignment before the Commissioner, ~

in which only one purported crime. involving $3 , 000

was mentioned to petitioner, petitioner’ 'S private

discussion with said Commissioner, and a repeat

of the stock warning by the agents.

_ Although, as stated in Escobedo, "The _ .

accused may, of course, intelligently and knowing-

ly waive his privilege against self- incrimination

and his right to counsel at a pre-trial state or at »

the trial,'"’ the facts herein involved are insuf-

ficient to find a waiver as a matter of law. —

: The trial court apparently ruled that peti-

tioner was not entitled to an attorney at the time

in.question, and, therefore, did not rule on whe-

ther a waiver occurred, nor submitted the issue

to the jury (T. 528-9, 728-32). Respondent ap-

_ parently contended that said stock warnings were

sufficient to constitute waiver. However, when

viewed in light of the total circumstances, these

‘stock warnings were of little value. Although

petitioner was "advised" he could speak to an |

attorney, there was not an attorney who resided

in the-entire cownty, Further, every time-he

» had tried to speak to someone, including his wife

_and brother, he was not allowed to do so-alone,. .

This deliberate refusal to allow petitioner to speak

alone to his wife or brother was not only itself

a denial of petitioner's rights, but it‘may well.

have caused petitioner to assume that if he did _

‘counsel with an attorney, this also would not be

in private. An accused is not properly advised

of his right to counsel unless it is at least in- .

ferred that he may consult with said cognsel in

private; certainly, he is not properly so advised

» when it is inferred hé may not so consult ini pri- ~

vate.

Since this Court has but recently recog-

nized. that the right to counsel accrues at the stage

of the proceedings herein involved, there are no

~» ¢ +

. &

‘cases from this Court as to what constitutes

_ waiver of said right at said stages of the pro-—

ceedings, However, th@ Court has set forth

_ criteria by which such a/waiver must:be consid:

ered at other critical stages of the proceedings,

and it. is illogical to suppose that a waiver may

be-more easily effected before F, B, I, agents

during a secret: interrogation than before an

impartial judicial magistrate. See Escobedo v,

- State of Illinois, supra, particularly footnote 14

therein at 378 U.S, 490, 84S.Ct. at 1765.

In Von Moltke v. Gillies, 332 U.S. 708,

68S.Ct. 316 (1948), this Court granted.a writ of

habeas corpus because the petitioner had entered

a plea of guilty before thé district judge without

benefit of counsel, In discussing what constitutes

an intelligent and competent waiver of the right

to counsel, the Court held that merely because

the accused states he desires to waive counsel is’

not sufficient to constitute waiver, but that,

: ~\

"To be valid, such waiver must be

made with an apprehension of the nature

of the charges, the statutory offenses _

included within them, the range of allow- -

‘able punishments thereunder, possible

-defenses to the charges and circumstances

in mitigation thereof, and all other facts

essential to a broad understanding’ of the

whole matter," (332 U.S. at 724, 685.Ct,

at 323) :

As admitted by the F, B, I, agents, petitioner

was not advised of these matters prior to the inter-

rogation of him, Is. the petitioner entitled to any

less protection before these agents than he would

be afforded before a judge? If so, the right to

counsel as guaranteed by the Constitution is ren-

' dered virtually nugatory, particularly in a case

such as petitioner's,

Also illuminating oft the question of-waiver

of counsel are Uveges v. Commonwealth of Penn-

sylvania, 335 U.S, 437, 69S.Ct. 184 (1948) and

Johnson v. Zerbst, 304 U.S. 458, 58'S, Ct. 1019

(1938). .

The mere fact that petitioner was advised

of his right to counsel by Commissioner Rowley

did not render the confessions made thereafter,

admissible, Not only did the Commissioner's

advice to petitioner as to*his rights fall far short

of that which would give rise to a valid waiver, but —

‘petitioner was only advised as to the one purported

crime of — 5s 1965.

The ‘hibit of the Court of Appeals herein

is also in conflict with Queen v. United States,

335 F, 2d 297 (D.C. App. 1964). See also People v.

Modesto, 42 Cal. Rptr. 417, 398 P.2d 753 (1965).

In summary, particularly since “every

reasonable presumption is indulged against" the

“waiver of counsel, Glasser v. United States, 315 |

U.S. 60, 62S.Ct, 457 (1942), there was no such |

waiver in the instant cause,

It. Insufficient corroboration of confes-

_Sions by independent evidence, .

° eo

.. The opinion and judgment of the Ceavi of .

Appeals in this case has decided this federal ques-

tion in conflict with applicable decisias of this Court.

eT i, ee eS a Fe § et 2S RES) Tae

his’ account,

558-9, 561, 572),.

_ instance of the undisputed sig not only are

‘the incriminatory statements not corroborated, but.

In his inet cauitail confessions and admis -

sions, petitioner stated that he caused irregu- -

larities at the Dank bs the following method: —

ae ae made an ih achat deposit to

2. He then made false entries 3 On. the -

nouns so — would reconcile in a ceftain manner,

This was proved untrue by the undisputed docu-

ments and witnesses of respondent (Exhibits 4,5,

8-36, T. 134, 136, 141, 155, 370, 392, 403,

The cidiiaeiees evidence introduced to *

purportedly corroborate said statements not only

completely failed to do sa, and, in fact, totally

contradicted them, but said independent evidence

did not even tend to establish that a crime mee

been committed,

Petitioner submits that this is not a case *

which falls into the problem area of whether corro-’ e

boration was sufficient; rather, | this is an extreme

they are aor dis —— by the prosecution,

‘The Court of Appeals Saear found sufficient

corroboration, by announcing that such corrobar-

ation must amount to "independent evidence of ‘the.

corpus delecti,"' and finding

"The evidence clearly shows losses by

_ the bank from. embezzlement at the times

_and in De amounts charged ‘in the indict-

"ment, |

nee

° ‘ e

That this finding was unjustified is shown by the -'"

testimony of respondent's witness Eastland to the |

effect that all the evidence except the confession

/ was as consistentgwith innocence as guil®{T, 243,

258, 267-271, 275). | ‘

‘Furthermore, the single test of "indepen-

dent evidence of corpus delecti" is insufficient

under the holdings of this Court in Smith v. United

States, 348 U.S. 147, 75 S.Ct. 194 (1954); Opper

v. United States, 348 U.S. 84, 75 S.Ct, 158 (1%A4);

and Wong-Sun v. United States,.371 U.S. 471, 83

S.Ct. 407 (1963). The "corpus delecti" rule of

Wong Sun (371 U.S. at 489, 83 S.Ct, at 418,

fn, 15) was apparently the sole, test applied by

the Court of Appeals herein (incorrectly), How- .

ever the rule of Opper, that the independent evi-

dence must "tend to establish the trustworthiness

of the statement" (348 U.S. at 93, ‘75 S.Ct, at

164), was. obviously not applied herein, since the

independent evidence not only did not tend to ‘estab-

lish the trustworthiness of the statements, but

substantially established their antrustworthiness

and falsity, Additionally, the test of Smith, that -

"All elements of the offense must be established

by independent evidence or corroborated admis-

sion..." (348 vU. Ss. at. 156, 75S. Ct. at 199) was

not met, at.

‘Thus, the finding of sufficient corroboration

; herein is in conflict with the decisions of this ‘

Court,

sini Kxculpetory statements.

. This issue is an important question of

: federal sa which has not been, ‘but should be,

tates reversal ‘of. the conviction herein,

settled ~ this Court,

| | Under three separate analyses, respondent

or its witnesses established certain uncontro- ;

verted exculpatory matter, all and each of which |

is binding-upon respondent ‘and, therefore, dic-

First, as discyssed supra, the uncontro-

verted documentary waaay introduced by res-

pondent proved that if petitioner caused the short-

ages and irregularities charged in the indictment,

- he would have had to remove cash, However,

Agent Carlton testified that petitioner said he

never removed cash from the Bank (T. 540, 560)...

This exculpatory statement.is not only uncon-

tradicted,: but is buttressed by portions of the

written confessions » Which infer that petitioner

caused shortages only by making unsupported

Geposits to his accounts, >

| Second, and closely relatéd, petitioner's

purported confesgions and admissions state that ‘

every time he caused a shortage, there would be

a corresponding unsupported entry in his accounts,

‘However, on not one of the occasions charged in +e

the indictment did this occur, y

“ Third, if petitioner caused a shor ye by

' the method he confessed to, the resulting book -

entries would havé correctly reflected the trans-

action, although it was fraudulent, Conversely,

the alleged false entries couid not have been his, -

since they did not reflect the purported fraudulent

transactions he confessed to, According to his +s

purported confessions, the result of the entries

- petitioner made to conceal the transaction would

be that the General Ledger control account

; d , 3. ck, tee

(''Deposits Subject To Checks"') would be correct, . 3 ,

d the igdividual ledger accounts would be too ,

high. > “fhe evidence, howevér, showed that if any .

irregularity exiated,, said General Ledger account or (

was too low, and the individual ledger accounts

correct,. Thus, petitioner could not, according

to said smraipakony matter, have committed the kee

-alleged crimes charged in the indictment, (This hy

is equally applicable to the embezzlement counts

since respondent contended that whoever was re- _

sponsible. for the false entries was also respon-

sible for the embezzlerhents, 7 Also, various

testimony of Mr, Eastland was exculpatory, par-

= ticularly as to his inability to recognize petitioners .. .

Pe _handwriting on the proof sheet changes (althougir :

he could recognize petitioner's handwriting else-

where) and the occurrences at the vault on April

5, 1965, where it appears unlikely that petitioner

_ entered the vault to make the questionable‘ changes. -

' In the instant cause, the Court of Appeals

did. not.respond to this contention-of petitioner, .

dent in its brief in the Court of Appeals. Peti-

tioner was unable to find any relevant decision of

. this Court on this important issue, However,

- severaj cases from the Courts. of Appeals indicate —

. that petitioner. is ‘entitled to reversal herein because

in the absence of contradiction or mistake, the

prosecution is bound by exculpatory matter which

it imtroduces, or which its witnesses'testify'to,

* es .

In Cartello vy, United States, 93 F, 2d°412

(8th Cir, 1937), a case very similar to the instant

-cause, a conviction for conspiracy to alter elec-

of evidence, and ‘uncontradicted exculpatory matter

testified to my ' the é government witnesses. In that

ease, the prosecution proved that thirty. or more’

"straight" Republican ballots had been altered to.

* - straight. Democratic ballots by someone, The

defendants were four eleétion officials and the.

Democratic precinct captain, all of whom were

entitled ta be present at the balloting and count-.

'-ing. (Similarly, petitioner's presence in the Bafik

was authorized and. proper, ) However, there was

no direct evidence that the defendants did the al-

tering, The handwritten alterations ‘were not

. recognized as the defendants', (Mr. Eastland

testified that although he could recognize petition-

er's handwriting in the cash journal, he could not

recognize the alterations on the proof recap as

petitioner’ s. }\Furthermore, two prosecution

witnesses testified that although they observed

the defendants during the time in.question, they

- saw no irregularities occur, (Eastland's testi-

mony as to April 6, 1965 ie almost identical, -

Further, all the Bank's en: iployees testified they

never saw petitioner do anything improper, )

Thus, as in the case at bar, the prosecution had .

proved at most that a crime occurred, and the

‘Same, as did others, This was. insufficient to

sustain the conviction, As to the exculpatory

matter, the Court said:

"Ordinarily, a Utigest is bound by

’ | . the tes}imony ‘of his own witnesses,

, especially if that testimony is uncontra-

dicted and there is no claim of mistake,

(citing cases): (93 F, 2d at iene die

See also Young Vv. United States. 97 F. 2d 200,

117 A, L,R, 316 (5th Cir. 1935); State v,

Hernandez, 36 N,M, 35, 7 P, 2d 930 (1931),

- ("Where the written statement of one charged

7 —~\ . ns Matra. yc :

oy 50 5

re with ‘murder was used against him and showed that

he was. present, but did not aid and abet, and no

circumstance is inconsistent with the exculpatory Pees |

statement, the conviction must. be: reversed for

failure of essential. proof, "'); State v. Griggs, 20

N.M, 466, 150 Pac, 921 (1915); State v. Butler, i

38 N.M, 453, 34 P,2d 1100.(1934), ('"... the State “{

> having introduced an incriminatory statement, is’ ‘ a

bound to ovércome the exculpatory. matter ‘Gon- ; j

tained in it."").. In People v. Collins, 11 Cal,

Rptr. 504 (196 1) a conviction of voluntary man-

slaughter was reversed on the basis that the _ .

. defendant's exculpatory statement was not rebutted

by the prosecution,’ The court said: —

"The prosecution, having presented as

a part of its case the statement of defen- .

dant as to how the killing occurred, is |

bound by that evidence in the absence of

_ proof to the contrary," (11-Cal, Rptr, at

515) , Beg.

In. summary, in addition to introducing no.

. substantial proof that petitioner committed the

crimes charged in the indictment, respondent's

witnesses testified to certain facts which are tot-

ally inconsjstent with petitioner's guilt, and, if X :

true, exonerate petitioner of the purported crimes

charged, These facts not being controverted by |

. respondent, and there being no claim of mistake,

_ Tespondent is bound by said facts, and reversal .

. is, Ceretore, required,

” ‘ ,

9 CONCLUSION > ‘

| For the reasons hereinabove stated, this .

xe ad i : ; M2 S .

oo:

AEP IRR GPO ne RAR OP et Ee aR ately pata emcee — a) =. <> sina

Court should grant its moe of Cerfiorari in this

‘cause. ;

? Respectfully submitted, '

QUINCY D, ADAMS — ee eee

Adams & Pongetti sp bee

1118 Simms Building = d

Albuquerque, New Mexico -

mere 3 HARRY L, BIGBEE Pat

| os Bigbee & Byrd

~ + + Suite 200, Bokum Building

- " Post Office Box 669 ; di

Santa Fe, New Mexico

SON, Es “ARTHUR H, COLEMAN Z

> . ae Rodriguez & Coleman Aran,

i Suite 14, Blatt Building

Post Office Box 1453:

Santa Fe, New Mexico

—————_——————_—___ ® ae a ra ——+—__--- —_-__.

ay: < Altorneve doe Petitioner

Napoleon Persone. Zamora

pe .

‘. APPENDIX A

COURT OF APPEALS +

"UNITED STATES COURT OF APPEALS

M2 eect.

@ July Term, 1966

NAPOLEON PERSONE ZAMORA, - * )

- | ae )

fae Appellant, ) :

ie: , ) No,

a ) 8750.

vw a ° Te

UNITED STATES OF AMERICA, )

“Appellee. es

)

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW MEXICO

Arthur H. Coleman (Harry L, Bigbee and Arthur

mre ‘Coleman, Bigbee & Byrd; Post Office Box 669,

Suite 200, Bokum Building, Santa Fe, New eee

on the brief) for Appellant, -

John A. ‘Babington, Assistant, United States .

x PEEP AM LORS STUD OTE HG NDS OY Bat FREE ot a

OPINION OF TENTH CircuIT.

kh ad

‘OR Ae mae ab ash

. 7

nent as ST A

; oe ee x,

Attorney, (John Quinn, United States Attorney,

John A, Babington, Assistant United States Attor-

ney, United States Court House and Post Office

Building, Albuquerque, ;New Mexico, on the brief)

‘ for Appellee, 3

Before. JONES*, LEWIS and BREITENSTEIN,

Circuit Judges, ! a 2

A erry ; P)

JONES, Circuit Judge

Napoleon Persone Zamora, the appellant;

_ Seeks a reversal of his conviction and sentence:

upon a jury verdict of guilty on each of eight counts

of an indictment charging the making of false en-

tries ‘in the records of a bank insured by the Fed-

eral Deposit Insurance Corporation in violation of

18 U.S, C.A,*§1005, and on eack of three counts.

of the’indictment charging embezzlement of Stated

amounts from an insured bank by an officer of the

bank in violation of 18 U,S.C.A, §656. Riess ss

The executive vice president of the First

National Bank of Santa Rosa, New Mexico, R, W., .

Eastland, on April 5, 1965, discovered that some

______false-entries had been made in the bank's records.

On the following day he discovered that a change in .

| @ record -had been made that morning. The Fed-'

eral Bureau of Investigation was called in, On

April §th three F.B.L agents were at the bank _

when Zamora returned from lunch shortly after txo:

o'clock, Zamora had been employed by the bank

“¢. for nineteen years and was ‘then cashier of the bank

*Of the Fifth Circuit, sitting by designation,

@ needed

Zamora was asked to go into the bank lounge and :

there met the F,B,I, agents. Agent Carlton, who oo.

/ was taking the lead’at the time, introduced him- —

'.self and thé other agents. He told Zamora that

they were invéstigating a report of irregularities

-at the bank, Zamora was informed that he did not _

- have to say anything, and that whatever he might

he could consult a lawyer or anyone else and that _—~_

- no prémises would be made and no threats or dur-—

ess would be used, Zamora consented to | answer

questions, At the outset Zamora denied having

any knowledge -of irregularities, but later admitted

_._his embezzlement of bank funds, specified the

amount of the total shortage, asserted that no one:

else was involved, and related the method used ‘to

conceal the frauds, The interview lasted less

- than anhour, The. agents went with Zamora to ~

his home. where. he talked with his wife and made

a _telephone call to his brother. “As he was leav+

ing the bank Zamora said to Eastland, "Walt, I'm

sorry. I'm awfully sorry, This is awful, Would

you look after my family."' The agents-took

\ Zamora to the nearest United States. Commissioner

Nw ‘was located at Tucumcari, New Mexico, fifty af

to “4 ixty miles away, About six o'clock a com-.,

a plaint was filed and Zamora made a formal .

: ‘appearance before the Commissioner, The aay

-missioner asked if he had an attorney. Zamdra

replied, 'No Idon't, I don't want one: I have

done everything i can do to anybody."" The Com-

missioner, who had known Zamora for a long

good lawyer, sc marae telephoned his

et ‘time, re him into his office and told him he

wife froin the Comfnhissioner's office, State- : -

ments in the nature of confessions had been written ,

. by the F, Bil agents, These were read by |

Zamora and were read to him, and then were

aes ae

‘signed by him,~ 7 | ee eee

ee: “Zamors was-indicted.on eleven counts, of

which eight counts charged false entries in the

- records-of an F,D,1,C. insured bank, and three

_ ._-e6unts charged embezzlement from the bank, He

_—__. was found guilty on all counts and given sentences _

.which aggregate twenty years. He has appealed

from the conviction and sentence, : oe

ey Zamora urges, on several grounds, that

the admission of his confession was error. He

asserts that the evidence shows that the confes-

sion was not freely and voluntarily made, ° To =

support this position he points t testimony that

- + he appeared to be dejected, ee worried, sur-

' prised, depressed, and ina state of shock, The

, Witness who used the term "state of shock" re-_

/ >. garded it as Synonymous with "depressed, " None

4. ef the evidence, however, indicated the absence. __

of a rational intellect, or any mental condition .

except that which would naturally follow detection .

of criminal offenses over a ‘twelve year period :

involving over $250,000. The evidencesfalls far ar

short of showing facts from which it could be °: :

inferred that the mental condition of the appellant .,

tary, nor was anything else shown which would - -_

indicate that the confession was not freely and

voluntarily made, RP sd s

| . It is claimed by Zamora that his confes-

sions were elicited and taken in violation of his

right to counsel, It is pcan as it must be,

‘that before he was interviewed he was informed

_ that he did not have to make a statement, that

. anything he might say could be used against him,

_and that he had a right to confer with an attorney

cote emedeny

> .

+ @:

or with anyone else. When he was’ before the United

- States. Comrnissioner he was again informed of his

right to counsel, His complaint seems to be that

-he"was not warned more often, told that he could

‘confer with counsel in private, and-that he was

‘not advised as to the punishment to which he might

be subjected, The applicable constitutional tests

were met, In Miranda v. Arizona, "384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed. 2d 694, it was held that

a person in custody must, prior to interrogation,

, be clearly informed that he has a right to remain.

” sileffand that anything he says may be used :

against him in court; he must be clearly inform-

_ ed that‘he has the right to.consult with a lawyer

and to have the lawyer with him during interro-

gation, and that if he is indigent a lawyer will be

appointed to.represent him, The requirements

that the person be informed of the right to have

his lawyer.with him-and that a lawyer would be

appointed for him; if indigent, are: guidelines

_ which had not been announced prior to the Mir-

anda decision, These guidelines are not to be

applied tq,a case where, as here, the trial was e

commenced prior to the Miranda decision,

Johnson v. New Jersey, 384 U.S. 719, 86S.Ct.

1772, 16 L.Ed, 2d 882. The Miranda decision -

was announced on June 13, 1966,. The Zamora

trial commenced on August 10, 1965, and ended |

on August}13, 1965, On August 27, 1965, a Mation’

_ for Acquittal or for a New Trial was argued and

on September 3, 1965, sentence was imposed, The

confessions were not.to be excluded because of

- failure to inform Zamora of his rights, .We are

cited to no authority which requires a. person to

_ be informed of the possible penalties of offenses.

‘which the questioner may believe have’ been com-

mitted, ,

3 The questioning éomrhenced at 2: 18 P7M,

on\the afternoon of April 8, 1965. It termémated\

, about an hour later, Zamora went home and talked

with his wife, He telephoned his brother, Zamora

and the agents returned to the bank. ‘An F, B. 1,

‘agent telephoned the Ynited States Commissioner

at Tucumcari,. New Mexicp, . About four o'clock, a

perhaps a little ea lier, Zamora and the agents |

started from Santa Rosa by automobile and arrived:

at the Commissioner's office in Tuctimcari at

5:20. A.complaint’was. ptepared and at 5:26 the »

arraignment of Zamora commenced, Itis urged +

that the confessions were inadmissible because

there was an uhdue delay if taking Zamora before ~

a.commissioner,’ The duty of the officers is to

take a person arrested before a commissioner.

‘without unnecessary delay, Rule 5(a) Fed. Rules

- Crim, Proc., 18 U.S,C. A.” This Couit, ina

Opinion stating the governing. principles of la cn

.. with a full discussion of the controlling precedents,

has set forth fully and adequately the rules which

control the decision on this foint in this appeal, est

Walton v.. United States, 10t Cir. 1964,.334 F.2d

343, cert. den, 379 U.S. 991, 85°S.Ct, 706, 707, »

13 L.Ed, 2d 612, Applying meee rules,. it is®

clear that there was no unnecessary delay shown

and the time lapse between the’ ‘questioning and

confession and the arraignment did not render

the- confessions inadmissible... See also egal ve

United States, 10th Cir, 1966, 357 F. 2d 336;

Stille v.- United States, 10th Cir, 1965, 354°F, 2a

233; Shultz v, United’ Staten, 10th Ci. 1965, wer

| F.2d 287.

This Court is’ ‘asked to hold that the written

“confessions, signed by. Zamora after he was ar-

raigned, were inadmissible, This position is

based upon the assumption cxend the written . &--

~ |

Confessions were the same as those made orally |

-at-an earlier hour, and that the exclusion of oral

statements would. require ‘the rejection of those

which were written, When the Court holds, as _

we do, that the oral confessions were properly

_Teceived in evidence,’ the plausibility of the ~~

appellant's contention disappears,

The appellant insists that there is no suf-

ficient corroboration of his confessions to permit

_ the conviction to'stand, It is well setfled that un-

. less corroborated” by independent evidence of the

corpus delicti, the confessions or extrajudicial

admissions of a defendant are not sufficient to sus-»

_ tain a conviction, But the indepertdent evidence is

only required. to be corroboration... It need not be

of itself sufficient to establish guilt, It needs only

__to show facts in corroboration which, ‘taken with

the confession, establish guilt beyond a reason<

able doubt, Evans v. United States, 10th Cir.

1941,. 122 F.2d 461, cert.den; 314 U.S. 698, 62

S.Ct, 478, 86.L,.Ed. 558. The evidence clearly

showed losses by the bank from embezzlement at

the times and in the amounts charged in the indict-

ment, .It was also shown by evidence, largely cir-

“cumstantial but sufficient to*permit a determina-

tion beyond a reasonable doubt, that the offenses

charged were committed by the appellant. No mare

_is required, The evidence sustains the convic-

tion, | : : et

Zamora asserts that error was committed

by the admission of other offenses than those for

' which he was being tried, This evidence was of

other acts of embezzlement in the course of con-

duct showing a series of related transactions.

- which diverted funds of the bank to Zamora or to

business enterprises of which he was the owner or

in which he was substantially interested, Such

aan

evidence was clearly admissible, The rule which

guides decision in such a case has been stated with

clarity and brevity by this Court in these words:

"The general rule is that evidence i

that the accused committed another crime

_ independent of and unconnected with the

| \ One for which he is'on trial is inadmis- .

sible, However, the general rule is .

subject to a number of well-recognized

exceptions, Evidence of another crime

is admissible where it tends to establish

a common scheme, plan, system, design,

or course of conduct and where such other

crime is so related to the crime charged.

that it tends to establish the latter, or

tends to establish motive, intent, or ab- . -

‘ ie

sence of mistake or accident, " Tandberg-

Hanssen v, United States, 10th Cir. 1960,

284 F, 2d 331, See Morgan v, United States,

10th Cir, 1966, 355.F. 2d 43; Caldwell v.

United States, 10th Cir, 19297 36 F, 2d

742, cert, den, 281 U.S. 725, 50 S.Ct,

239, 74 L.Ed, 1143,

There is no merit in the assertion that évidence of

- Other crimes was improperly admitted,

The appellant requested an instruction,

which the court refused to give, which would have

made a distinction between "moneys" and "funds -

and credits", contending that if anything was

« mbezzled from the bank it was money and not.

funds and credits, The court's refusal to give

the instruction was proper, The word "funds" is

broader than but in its usual sense includes 'mon-

eys,"' In re Pilch's Estate, 141 Colo, 425, -348

P.2d 706. See Bishop v. United States, 8th Cir.>

1926, 16 F.2d 406, 19 F.2d 222. The appellant

requested an instruction that the bank's deposits —

‘were insured at the time in question, The court

declined to give the instruction and the refusal is

_ assigned as error. The indictment charged false

proof was required that the bank was insured, The

evidence showed that a certificate of insurance was.

.issued to the bank in 1950 and was still in force

at the time of the-tria], The requested instruc ~

tion was unnecessary and might have confused the |

jury.

The appellant attacks the sufficiency of the

. evidence, ,This contention has been considéred and

does not require extended discussion, The ap-.

_ pellant was fairly tried and the evidence fully

warranted the verdict and judgment, No error

has been made to.appear., The judgment and

sentence of the court -

_ AFFIRMED, |

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.