Brief in Opposition to Petition for a Writ of Certiorari — Zamora v. United States

: ant te Supreme Gfourt af the ited site

ORR TeRM, 1966

No. 913

NAPOLEON PERSONE ZAMORA, PETITIONER |

v. )

-Untrep States oF AMERICA

ON PETITION FOR A WRIT OF OBRTIORARI TO THE UNITED |

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_. BRIEF FOR THE UNITED STATES IN OPPOSITION

“OPINION BELOW

The opinion of the court of. appeals (Pet. App.

52-60) is not yet. reported. —

* | JURISDICTION Ne

The judgment of the eourt of appeals was entered

on December 1, 1966. The petition for a writ of

certiorari was filed on December 27, 1966. The juris-

diction of this Court is invoked pend 28 U.S.C..

aah cre i ,

Mirai QUESTIONS PRESENTED nicked

1. ‘Whether petitioner’s ‘statements referring gen-

erally to prior but related criminal acts. were admis-

sible in evidence: my

244-773—66 ae

2: :

- 2, Whether there was any. unnecessary delay in

_ taking petitioner before the nearest commissioner in

violation of Rule 5(a), F.R. Crim. P.

BS Whether pa was | denied the right to

coltonik |

4, Whether theré was sufficient ieroboretion for

_ Petitioner’ 8 confessions. ; :

STATEMENT

Petitioner was convicted by a jury in 7: the United

” States District Court for the District of New Mexico

“under each count of an -eleven-count indictment

‘charging him with making false entries in the records

of the federally insured bank of which he’ was an -

; officer, in violation of 18 U.S.C. 1005 (Counts 1 ~

through 8), and with embezzlement (Counts 9 through -

11), in violation of 18 U.S.C. 656 (Tr. 787-788). On: .

September 3, 1965, he was sentenced to imprisonment —

for an. aggregate of twenty years (Tr. Te) The —

court of appeals affirmed. - — |

The evidence showed that on April 5 and 6, 1965, |

the vice president ‘of the First National ‘Bank of —

og Rosa, a federally insured bank where titioner

‘was cashier, discovered false entries in the bank’s

records (Tr. 33, 178, 179). A call to the F.B1I.

brought three agents to the bank on April 8. They

were shown the bank records which revealed the dis-

crepancies (Tr. 326). At 2:18 p.m., when he returned .

_ from: luneli, petitioner was introduced to the agents —

-and informed that they were investigating a report

‘of irregularities and a large shortage of funds (Tr. =

422-423).. Special Agent Carlton advised petitioner

\ .

ne )

that he did not have to say anythitig; that the agents ©

would like to discuss the matter with him; that before

he. made any statement he was entitled to consult an

attorney or anyone else; that no threats, promises or

_* ‘duress would be used to get information from him;

and that what he said could be used in court against

him (Tr. 423): Petitioner agreed to talk to the

‘agents (Tr. 4385). At 2: :45 petitioner admitted that

he had made one of the false entries in question on

April 5, 1965, in the general ledger sheet. Petitioner i

then told the agents that such irregularities covered .

_ a petiod of twelve years, that he alone was responsible,

and that the total shortage was $257,400. Petitioner

also stated that he took no cash but when taking bank

_ funds he would make. a deposit to one of his accounts

(Tr. 538-540). Upon conclusion of the ‘interview at

. about 3:12, petitioner was told he was in custody and |

-. would be taken to Tucumcari for arraignment. He

asked if he could see his wife. Two agents went to

his home with him where he spoke to Mrs. Zamora and.

telephoned his brother. He was, returned to the bank at

3:44, and arrangements were made to take him tothe

office of the United States Commissioner in Tucumcari, —

50 to 60 miles away. At 4:02 the agents and pétitioner ~

‘left Santa Rosa by car. They arrived in Tucumcari at

5:20 p.m. Petitioner was then arraigned (Tr. 541-545).

At the arraignment the commissioner ‘explained --

| ‘petitioner’s rights to him, including his right to an

attorney. Petitioner told the commissioner he did

‘not want an attorney, that he was guilty. Commis- |

sioner Rowley explained that he: could not aécept a :

plea and set bond (Tr. 610-611). After the fotmal

4

arraignment, petitioner and Mr. Rewley, who had

known petitioner for about eighteen years (Tr. 490),

sat in Rowley’s office for ten or fifteen minutes, dur- _

‘ing which time the agents were in an adjoining office.

Mr. Rowley advised petitioner that~he needed a. good

lawyer (Tr. 494) and called petitioner’s wife so that,

bond arrangements could be made.. Petitioner still

said that he did not want an attorney (Tr. 611-612).

. Petitioner thereafter was taken into the other room -

where he read and signed two written statements

‘ which had been prepared by the agents. The first,

Exhibit 91, pertained: to the April’5, 1965, episode ~

. (Tr, 466-467). The second, Exhibit 92 (Tr. 554)”

stated (omitting introduction and closing recitals) :

': About twelve years ago I began converting

funds of the bank to my own use by putting

-. deposit tickets-to my accounts for amounts

_ which I failed to deposit.. As a result the

control account for Demand Deposits ,was al-

. ways less than the individual ledger sheets

» totaled. -I concealed these irregularities from

the Bank Examiners by removing some of the

. ledger sheets when they were examining the

‘bank or by altering the ledger tapes of the bal-

‘ances (the tapes of the ledger card balances).

The tape (shortage) for which I am respon-

sible is about $257,400.00. Nobody else knew

about this or received any of the money. :

When certain of the bank’y: bookkeeping machine

tapes were checked for accuracy théy were found to

have been falsified by the insertion of a disposable ©

piece of paper so that the falsification would nét |

appear on the tape; the asset- -thus segregated would

ws

. 4

5 ;

be available to the embezzler, and the bank. would

lose that amount (Tr. 51-68). Erasures were also

» found (Tr. 179). - Petitioner was shown to have access

- to all the paper, machines, and cash ini the bank (Tr.

176) and to be in control of and responsible for much

of the bookkeeping. Contrary to his superior’s in-

“structions, petitioner himself ran tapes he was not

,, Supposed ‘to run (Tr. 160,. 167, 170), and his hand-

“ writing was found on tapes with false totals (Exh. 51,

Tr, 161; Exh. 52, Tr. 168). On certain oceasions

. large amounts were ' deposited to petitioner’s accounts

near the time that falsifications . resulted in bank

shortages.’ As much as $4000.00 in cash was kept by .

petitioner and his wife at home and more—up to

$3000.00—at their store (Tr. 666, 679). :

©. ARGUMENT

i Although petitioner’s oral statement and De

written. confession generally referred to his prior but

related criminal acts of embezzlement, their | admis-

sion into evidence was proper because they’ embraced

all of petitioner’s twelve years of false entries and

embezzlement, showing his method of operation and

establishing his intent. Morgan v. United States, - |

355 F. 2d 43 (C.A. 10). Moreover, the court care-

fully charged the jury (Tr. 7 77) that such evidence

was: admitted only for the purpose of establishing

' +£g., the April 5, 1965, shortage was $2980.48 and-a deposit

in petitioner’s account of $3941.84 was made that day (Tr.

401) ; on December 16, 1964, a hidden ba: rtage of $5000. 00

occurred (Tr. 365), and.on the next day a $3236.04 —— .

made to one of petitioner’s. accounts (Tr. ays 4:

6

petitioner’ s intent if i - found that. he had in ‘fact

done the acts charged.

- 2, Petitioner’s complaint that he was not taken

before.a commissioner as quickly as possible (Pet. -

36-39) is without merit. Although petitioner was

suspected when-the interview at the bank .began at

. 2:18 p.m., he was not known to be the embezzler

until his confession at 2:45. From that time. until

his arraignment at 5:20 p.m. the following events

. occurred: The interview continued until ‘about 3:12

when petitioner was arrested but, at his request, taken

home to see his wife. While there he telephoned his

brother. At 3:44 he was returned to the bank and

- arrangements were made by teleplione to meet the |

commissioner in his office in Tucumcari, 50 to 60

miles away. ‘The drive to Tucumeari .took one hour

7 and eighteen minutes.

In all, from the time the confession commenced to

the appearance in the cormmissioner’s office, two hours

and thirty-five minutes lapsed. No iscesaiey delay

was involved other than a 32-minute trip made ‘at

_ petitioner’s request so that he .could see his wife. .

After 3:12 no new evidence was obtained from peti-

tioner. Clearly, no violation of Rule 5(a), F.R.

Crim. P. took place; the circumstances involved in the

‘eases cited by: petitioner are plainly distinguishable.

- 3, Nor was petitioner denied his right to counsel.

The uncontradicted evidence shows that at the begin-

ning of the interviews by the F.B.I. agents petitioner

was fully advised of his right to consult an attorney

before making any statement (Tr. 535, 548, 553) and

that the court would appoint an attorney for him

7

. if he could not afford one (Tr. 491, 549, 553).

Moreover, before petitioner made his two written. 7

confessions, he was specifically advised by his old

acquaintance, the United States Commissioner, that

he not only had a right to a lawyer, but that “he

needed: an attorney and a good one’”’ (Tr. 494, 616).

At that time, however, petitioner’s expressed. attitude

was that he did not need a lawyer, that he was guilty ~

and wanted to “get it over with” (Tr. 492, 612).

Nothing in these circumstances indicates the claimed

denials of petitioner’s rights contrary to Escobedo,

. .. Vv. IMinois, 378 U.S. 478, or Miranda v. Arizona, 384

— US. 436, especially in light of Johnson v. New Jersey,

384 U.S. .719, and the. fact that the trial below took -

‘place in August 1965. Nor can it be seriously con-

tended that a banker of petitioner’s experience and

position did not: understand the gravity of the charges

against him so that his declining to call a lawyer

was not a waiver of his right to call one. This is so

even though he may not have known the exact charge

alleged: in the complaint and the range of possible —

defenses and punishments ; he obviously knew he had

‘ committed .a serious crime in misappropriating

. $257, 400.

4, Petitioner’s confessions were amply. corroborated!

by other evidence. His written statement regarding

the April 5, 1965, embezzlement. was explicitly and

' fully corroborated by the showing of the shortage

and by a corresponding deposit to one of petitioner’s

accounts. His oral. adniission and second written

statement were also corroborated by evidence of other

- shortages and other deposits to his accounts, by the

|

evidence’ of petitioner’s access to and control of all

the papers, machines and eash of the bank, by ‘his —

handwriting on falsified tapes, by the evidence of his

handling of tapes contrary to instructions, and by the

_ evidence of petitioner’s expenditures and acquisitions

of property and possession. of large amounts of cash - .

at home and at his store. In essence, petitioner’s.

complaint about lack of corroboration and the related

complaint that the government’s evidence was excul-

patory (because the government did not show a dollar-

for-dollar transfer of embezzled funds into petitioner’s

accounts) are attacks upon the sufficiency of the evi- -

dence. Both courts below having found the evidence »

sufficient: “There is no occasion for further review. —

Scales v. Umted States, 367 U. S. 203; United States v. -

J ohnson, 319 U.S. 503.

CONCLUSION

For rae reasons ‘stated, the petition for a we of

| certiorari should be denied.

hisetanacrd submitted, — |

Hd g THURGOOD Manerrasi, <a

ck Solicitor General.

Frep M. Vinson, Jr. |

Assistant Attorney General.

BEATRICE ROSENBERG, .

AntHony P. Nucent, Jr.,

ee 7 Attorneys.

- January 1967,

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U.S. GOVERNMENT PRINTING OFFICE: 1967