# Petition for a Writ of Certiorari — Zamora v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0197%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 913 ## Text | | | o ET es ee a ; 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. ie be ESR EAGER LM RCE ARSC Bares PRINTING COMPANY « Senta Fe, NLM - ‘ . So ; . ss) si , e a Nin een Se ae ee A529 AR CRY - . ‘ s - . . . > . . ~ os ~ aes = ~ ¢ » . % ° ° . a bd . , . %e . * . . » ® ‘ a 2 - . . « . . ” - . ; * : - - . . . ee ee ae | : ; 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, * as a. Insufficient corroboration of | confessions by” independent evidence, ri wm Saciidientelie ‘statements. | | Conclusion ey peo A:-Oplaion of Tenth Circuit Court bas Appeals . 31 31 —_— "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) Oe 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) 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 oe 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) . s 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 th 34,35 - 46 39° 50 50 35 ae ve 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 > °c a) ® * . r . s eo > - Ps _?° a he , wv 7 . t e. € . ’ % ‘ : & a, ’ . ‘ ' » © t - a - ’ - -* e . - - . ne Po Pas CGO TILE 4 Taree Se, . De Fads ahead : = : — \ . . _ IN THE SUPREME COURT OF THE UNITED STATES October Term, 1966 fee _ NAPOLEON PERSONE ZAMORA, . , Pe titioner, eT _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 7 2 -. 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) a ' - AC +2. , ‘ . A e “ 2 REDD BAB AAR IE NORE : a) a -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 . 8 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, — . Oo ' 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 By 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 oe wars not supported by cash or checks; ' This in effect gave my store account an additional $3,000.00, " ee * : 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 . oo 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 yo 13 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 a a 14 - > _. 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 15 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 16 e 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, 0 or said amounts had anything to do with the amounts charged in the indictment, e 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 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 20 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 e 2i 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, 22 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 9 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 . 25 | 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 4 + 48 ; 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, . nor was. such contention responded to by respon- © 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- tion ballots was reversed due to the insufficiency © 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 . defendants had the Opportunity to commit 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, a. - ” ‘ , 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. ; \ ma * ? Respectfully submitted, ' an 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: . 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 ., was such as cadsed his confession to be involun- © 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 c > . ~\ 56 + @: 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, , ¢ > h e 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 . &-- A ~ | » 58 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 s* 60 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 entries in the records of an insured bank and © 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, | . . a f . Fs ‘ bed : . . e Se vd : . . - x , . . ° = . . . . ba ; hae ‘ - . be . : : ‘ / ” ‘ ‘ ij ' s é . 2 : . r . ‘ . . * x ; ” f od : of | Q: : Ld ; > + m s » : ; . e. . " . ~ - f . . . . i . - . ay . . . ‘ . e 2 bs a ; : oe: F3 vi . * m 2 . bd } f ° ~ 4 . ‘ ie , . ~- 2 4 . . . : : i _ . ™ > . ” “ e . . F 2 . ba : ° . , . r a ; ~— . » . . . . - e . 3 . . ‘ 2 : . . ~ . ; : x . . . . » i ; ‘ : ; . * ; ' te . . ° . - ” a ‘ . : ‘. - . . is : « ’ . Y . . ~ = . > é ‘ : : . be e . . , - « . . i . . . . ’ % : - . e ° ° * i ; . . Dei) ik eee srvsae 2a ee poe re pmae es rs --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0197%3A1. Public record. Not legal advice.