Petition for Writ of Certiorari — McCaffrey v. United States

PAGE

Opinion Below Scene ais , 3 2

Jurisdiction oe : ie atoatis Canoe ae

, | =

3

3

6

Questions Presented ........................ ene

| Statutes Involved oo... ecetecceeeeceseeeenees

| ‘Statement of the Case ......... bu

Reasons for Granting the Writ ......

1. ‘The Sufficiency of the Soeenaet Charging

Possession of a Falsely Made Certificate scala 7

2. Failure to Transcribe Grand Jury Minutes, -

Denial of Fair Trial .......... 9

3. Failure’ to : Transcribe Grand Jury “Minutes, .

Denial of Petitioner’s *Rights Under the Fifth |

Amendment to the Constitution -... 9

4, The Instruction on the Presumption ................... — nH

Conclusion... SRS kr ? “12

Appendix A — Judgment Below tnt: 13

Appendix B — Statutes, Involved j . Bly

_ CASES CITED

bei v. United States, SG TE Bie iol 12.

_. Costello v. United States, 350 U.S. 359 ...... 11

~ Dennis v. United States, 384 U.S. 855 9,11

Gilbert v. United States, 370 U.S. 650 .... a i

Howgate v. United States, 7 App. D.C. 217 ...2........... 9

Martenay v. United States, 216 F.2d 760 . , :8

‘McCaffrey v. United States, 372 F.2d 482. . §

Morrison v. California, 291 U.S. 82 : 12

Pittsburgh Plate Glass v. United States, 360 US. 395. 9, 11

INDEX (contixuzD)

i : PAGE

Selvidge v. United States, 290 F.2d 894 8

United States v. Amazon, 55 F.2d 254 ee

United States v. Davis, IE Re BOI siciensscdeencs peste,

United States v, Gainey, 380 U.S. 63... ey

United States v. Glasener, 81 Fed. 566 0.0... . 8

. United States v. Johnson, 319 U.S. 503 2 1

_ + United States v. Moore, 60 Fed. 738 ............-.--.-- pica a. ae

- .Wnited States v. Mulligan, 59 F.2d 200 ........: ee

‘United States v. Proctor & Gamble, 356 U. S. 677........ Oi .

- United States v. Pyler, 6 F.2d 668 .......... nasa ae

United States v. Rose, 215 F.2d 617 2... ccccccceseeee = 1

. United States v. Smith, 262 Fed. 191 le

United States v. Staats, 49 US. 41 ....... wes

“United States v. Turner, 246 F.2d 228 .......)......... ie ie

United States: v, Wentworth, 11 Fed. 52 «..... 8

Wright v. United States, 172 F.2d 310 ........ 8

- Yee Hem v. United States, 268 U.S. 178 | peiceabaagtan a

Constrrution or tue Unrrep Sratzs: | J

Fifth Amendment .. on ne ae

Srarures: *

50 U.S.C., App. 451.457 .............. | . 1, 2, 4,6

. 50 U.S.C., App. 462( /—_——ae 1, 2, 3, 4, 6, 8

. MiscELLANEovs: : : |

Care, English Liberties, Fifth Ed. atta 10

Hawles, The Englishman’ s Right, Brodie Ed... 10 |

Model Penal. Code, §1.12(5) .............. . a

Somers, The wasn of Englishmen’s Lives, pues

Dublin . ESE Lee PR WI eS 10

_ Younger, Grand Juries and the American Revo-

lution, 63 Virginia Magazine of History 257... 10° |

« . Younger, The People’s Panel (1963) : 10

Warren, History of the American Bar (1913) .».

_ Wigmore, Evidence, $2485 (3rd Ed.) ..: 12

IN THE

SUPREME COURT OF THE

UNITED STATES.

sane “Ocrosmn Tana, 1966 eet tap

Ne cece

- JOSEPH ‘THOMAS McCAFFREY, Petitioner,

7 ~ STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE

| ‘UNITED STATES COURT OF APPEALS FOR ~ THE

TENTH CIRCUIT ;

_ The petitioner prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the-Tenth Circuit, entered in the above-en-

titled case on February 3, 1967, affirming the judgment.

of the District Court for the District of Colorado, entered

upon @ jury verdict, convicting the petitioner of having

in his possession a certificate purporting to be a regis-

tration certificate issued pursuant to 50 U.S.C., App., Sec-

tions 451-471, which: he knew to be falsely mene, in viola-

tion of 50 US.C., a §462(b).:

. Service certificates. The questions are: _

' 6

—2— i 2 ae :

‘Opinion Below oe

The opinion of the court below ‘sdusaittion the ‘ide.

ment sought to be reviewed (infra, App. A, pp. ¥-16) is

; reported at 372 F.2d 482. |

Jurisdiction’

The judi of the ourt of Appeals was entered

on: February 3, 1967 (infra; App. A, p. 16). A petition -

for rehearing was denied on March 1, 1967. By order of

Mr. Justice White, the time for filing a petition for cer-

.tiorari was extended to April 30, 1967. The jurisdiction .

of this Court is is invobed under 28 U.S.C. §1254(1).

Questions Presented _

' Petitioner was arraigned May 21, 1965 at which time

he refused to sign a waiver of indictment (R. 7). Peti-

tioner was then indicted by indictment dated June 8, 1965,

for having i in his possession a certificate purporting to be

a registration certificate issued pursuant to the provisions

of 50 U.S.C., App. Sections 451-471 in violation of 50 U.. .

S.C., App. §462(b). Section. 462(b) applies to Selective

a

(1) ‘Whether a genuine form of a Selective Service :

certificate containing false information is a falsely made

_ certificate within ‘the meaning of the applicable law.

(2) ‘Whether the petitioner who refused to waive

‘tellladaianind by grand jury was denied a fair trial upon

failure of the government to produce. grand jury testi-

mony of a witness who testified before the grand jury

—

>

25h eet conned si

"which returned: the indictment and who testified at the

trial because no —_—— was made of testimony be-

- fore the eranid, jury.

(3) Whether tle -petitioner who refused to. waive

_ indictment by ‘grand jury was denied his constitutional

rights under the Fifth Amendment to the United States

Constitution: upon failure of the government to produce

. grand jury. testimony of a witness who testified before

the grand. jury which returned the indictment and who |

- testified at’ the trial because no transcription was made -

of testimony before the — jury. '

(4) Whether the vetitionsr was ‘dénied a fair trial |

by reason of the trial‘ court’s refusal to give an instruc-

tion tendered by the petitioner in accordance with the .

terms of the statute veer

"Statutes Involved

The | iain provisions of “the Constitution of the

United States, and ofthe Universal Military Training

Statute (50 U.S.C., App. §462(b) are -set forth in >

pendix B, ‘infra, pp. 17- — ;

Statement of the Case

| The one-count indictment (R. 5) was filed on June 8, |

1965 in the United States District Court for the District

of Colorado after the petitioner had refused to waive in-

dictment on May 21, 1965 (R. 7). The criminal proceed-

_ ings against the petitioner. were first initiated on April 9,

‘1965 upon a complaint filed before the United States Com- _ .

missioner by a William J. Beavers, a Special Agent for. ~

. .. . ad .

eaten anne PSION STEP TRY HELLIS LEI GOEL DLL NE INE, LIS PLLC LOLA LIED ELSE LES LEE IAAL ALI NE IO le i Ae

= . . . 8

- . *

°

oe

_ the Federal Bureau of Investigation (R. 3-4). This com-

plaint alleged that the petitioner on March 5, 1965 was

unlawfully in possession of a registration certificate is-.

sued. pursuant to law but not duly issued to the petitioner.

The Warrant of. Arrest issued by the United States Com-

missioner also alleged that petitioner was unlawfully in

possession of a registration certificate issued pursuant

to law but not issued to the petitioner. The indictment,

however, filed June 8,.1965, charged the petitioner with

having in his possession a certificate purporting to be a

registration certificat¢ issued pursuant to 50 U.S.C., App.

Sections 451-471, which he knew to be falsely made in

violation of 50 U.S. C., App. $462(b) (R. 5).

Section 462(b) “describes six categories of offenses.

The ‘indictment charged the petitioner with a violation of

the fifth category which reads as follows ‘ (5). who has:

in his possession any certificate purporting to be a certifi-

cate issuéd pursuant to this title [said sections]; or rules

and regulations promulgated hereunder, which he knows |

to be falsely made, reproduced, forged, counterfeited, or

altered;””? - es |

‘The petitioner was tried on October 5, 1965 before a

jury. The government called four witnesses. The gov-

ernment’s evidence went te show that on March 5, 1965,

the government’s witness, Schossow, a deputy sheriff of

- Jefferson County employed: by a roller rink at the time,

approached, the petitioner and his young brother Danny

to inquire as to their ages because they were smoking

»end the regulations of the roller rink forbade minors

‘under 18 from smoking. This witness testified that Danny

produced a Selective Service card at the request of Schos-

sow which card bore the name of and was issued to the

petitioner. Schossow then™ testified that the petitioner,

-

é .

: . 7 ‘

- ©

©

7 4 . .

Re nee ene ee ce ee ee “¥ ‘ — s : "

. 5 -

though not réquested to do so, submitted a Selective Serv- —

ice card, Exhibit 1, bearing the name of Joseph Thomas

‘Scott. Schossow turned this card over to William J. Beav-

ers of the Federal Bureau of Investigation because he,

Schossow, already knew petitioner’s name to be J oseph

. . Thomas McCaffrey and because: he noticed an erasure on:

. Exhibit, 1° (R. 17-19). Schossow admitted on cross-exam- .

ination that the petitioner made no representations as to

petitioner’s intentions with respect to the ‘card, nor why

he had the card, or what he intended 7 with the card

(R. a.

or testified that petitioner. came tg Sine ’s of-

fice voluntarily and informed him that he had purchased

Exhibit 1 in blank in September, 1964, frum a party”

known only as Chilly, and that Chilly filled out the card

and the petitioner signed it. Beavers further testified ‘that -

the petitioner told him that Exhibit 1 had never been used |

prior to March 5, 1965 (R. 39-48). Schossow did not test-

ify before the grand jury. Beavers did testify before the

grand jury and it was on his testimony that the indict-

ment was returned. After Beavers had finished testify-

ing on direct examination, the petitioner sought produc-

tion of the grand jury testimony of Beavers but none was

produced because, as the United States attorney explained,

no court reporter was used to take testimony during the

grand jury hearing (R. 41-42).

The Deputy State divecter of Selective «Service for

the State of Colorado identified:the draft card,.Exhibit 1, .

as a — certificate form. He further testified that an

_examination\ of Selective Service records in Colorado did

not disclose a registrant named Thomas Joseph Scott, the

‘name on Exhibit 1.--He also testified that the alleged —

/ .

oO RRR RE RE FN NET SSD RIOR EER

=<

clerk’s signature on Exhibit 1 indicated it could not have

been issued by the local board in Colorado (R. 55-57).

_ he Petitioner testified that he was well known to

Schossow previous to March 5, 1965, and had shown his

own draft card to Schossow on*several previous occasions.

Petitioner’s testimony as to the draft card (Exhibit 1) ~

‘was .that while still under draft age he had purchased it —

from a person called ‘‘Chilly’’ in September, 1964, which

Chilly filled out and petitioner then signed the name

Joseph Thomas Scott. This draft. card had never been

used before. When Schossow asked petitioner for identi-

fication, petitioner handed Schossow petitioner’s wallet

not- knowing the draft card was in the wallet, and Schos-

sow extracted the draft card (Exhibit 1) from the wallet

. (B. 78-85).

a The petitioner tendered an instruction which the Court

of Appeals treated as in proper form. This instruction

‘(R. 9) paraphrased the final sentence of §462(b) and

would have instructed the jury that possession of a cér- -

tificate not duly issued to the appellant would be sufficient —

to establish an intent to use.the certificate for false iden-

‘tification unless the defendant explained -his possession:

_ to: the: satisfaction of the jury. This instruction was ré-

fosed. ;

/ Reasons for Granting the Writ

The: petitioner. stands convicted of the offense of. hav-

ing: in, his: possession a certificate purporting to. be a reg-

‘edie certificate issned pursuant to 50: U.S.C., App:

Seetions. 451-471, which: certificate le. knew to be falsely :

. made: The: certificate: in question. does not come’ withiti

the prohibition of §462(b)(5) because. the certificute was:

-

\

- s genuine as to form. This Court and the lower courts have

held to the contrary ‘and said that a falsely made certifi-

’ cate is oné that is counterfeit in form without regard to -

the truth or falsity of its contents. On the ‘other hand, a

false certificate is one that is genuine as to form but false

as to content. The decision below is in conflict with these

prior rulings. ae

The failure to transcribe grand jury testimony de-

prived the petitioner of a fair trial and of constitutional .

safeguards. Under rulings of this Court a defendant i in a-

criminal trial is entitled to grand jury minutes after cer:

tain foundation is laid, as a matter of right. In England,

and especially during the Revolutionary period, the‘grand -

jury served primarily to safeguard the accused. This safe-.

guard was inserted in the amendment’ to the Constitution.

No accused is to stand trial, in a criminal matter, where

waiver is not involved unless.an indictment is returned

in a manner which protects the -accuséd. Failure to tran-

scribe reduces the grand jury to a mere matter of form,

and raises an issue basic to the fair administration of

justice. The failure to instruct with respect to the pre-

sumption arising from possession, and the rebuttal of

that presumption, is in conflict with decisions: that a trial

court. must instruct on basic i issues in @ case.

1. The Sufficiency. -of the Indictment Chokes Pos-

- session of a Falsely Made Certificate. The indictment ex-

. plicitly charges the petitioner with possession of a ‘‘falsely

made’’ certificate (R..5). However, the proof made at the

" time of the trial was that the certificate was genuine as

to form and not counterfeit. This Court in construing

‘statutes with comparable language has held that a stat-

utory reference to false’ making of a’ certificate or a

falsely made certificate refers to counterfeited instru- .

ae

ments. United States v. Davis, 231 U.S. 183, 187-188;

United States v. Staats, 49 U.S. 41, 46.. Other decisions

- have applied the same’rule that a falsely made certificate

refers. to a’ counterfeit, certificate in the technical sense:

United States v. Moore, 60 Fed. 738, 739 (D.C.N.D.N.Y.) ;

United States v. Glasener, 81 Fed. 566, 568° (D.C.S.D.

.. Calif.) ; United States v. Smith,.262 Fed. 191, 194-195 (D.

C.D. Ind.) ; United States v. Mulligan, 59 F.2d 200, 201

(C.C.A. 2); United States v. Wentworth, 11 Feéd. 52, 55

(C.C.D. New Hampshire); Wright v. United States, 172

F.2d 310, 311 (C.A. 9); Selvidge v. United States, 290 F.

2d 894, 896 (C.A‘ 10); and Martenay . v. United States,

216 F.2d 760, 763 (C.A. 10).

The distinetion set forth by the cases is that on

falsely made instrument is one that is fictitious, not gen-

- nine’... something other than what it -purports to be

* without regard to the truth or falsity of the facts stated

therein.’’? Wright, supra, at p. 311. The trial court’s re--

fusal to grant the petitioner’s motions for judgment of .,

acquittal, and the ruling of the Court of Appeals are in

conflict with the holdings of this Court and other lower

courts. “The insertion of false information’ in the genuine

certification form did not render the certificate ‘‘falsely

made’’. It is not the falsity of the information which

brings the instrument within the meaning of the term but

_- the counterfeit nature of the instrument itself... See Gilbert

"vy. United States, 370 US. 650, 658.

” The trial court took issue (R.74) with the Court of Ap-’

peals for thé 2nd Circuit, United States v. Turner, 246 F.2d

228, which held that a stolen blank form was a certificate

under 462(b)(2), saying that it did not believe the ruling

in the Turner case should be adopted as law in this cir- —

cuit. The trial court ruled, contrary to Turner, that Ex-

—§—

hibit 1 was only a piece of paper and became a certificate

only when duly authenticated. The Court of Appeals be-

low agreed with the trial court in this construction, PP.

483-484.

‘The indictment might have been laid ander subdivision

(2), (3) or (6) of the statute. It also might have ‘been

proper to. charge that the filling in-of the blank spaces

constituted forgery, Howgate v. United States, 7 App. .

D.C. 217; United .States v. Pyler, 222 U.S. 15; United

States v. Pyler, 6 F.2d 668 (D.C.S.D.N.Y.).

(2)°* Failure to Transcribe Grand Jury Minutes, De-

nial of Fair Trial. ‘This Court has ruled that on proper

showing a defendant in a criminal trial is entitled to ac-

cess to grand jury minutes as a matter of right. .United

States v. Proctor and Gamble; 356 U.S..677; Pittsburgh

Plate Glass v. United States, 360 U.S. 395; Dennis_v..—_—

United States, 384 U.8. 855. The protection afforded a

criminal defendant is an empty right easily circumvented,

if the prosecution elects not to transcribe testimony be-

fore the grand jury, even ‘when, as in this. ease, the ac-

cused insists upon the indictment procedure. If failure

to produce. grand jury testimony can render a witnesses’

testimony inadmissible, Dennis, supra, p. 868, footnote 13,

then failure on the government’s part to transcribe so

that testimony cannot be made available to the accused

under any cirtumstances should logically render. all of —

. the testimony of the grand jury witnesses’ testimony in-

admissible, especially when the accused stands on his

— and refuses to waive indictment.

(3) Failure to Transeribe Grand Jury tia De-

ms of Petitioner’s Rights Under .the Fifth Amendment

to the Constitution. When the Petitioner was asked to

‘

~

=~

waive indictment by grand jury and he refused, he stood —

ppon’ his Constitutional rights. The burden was then on

‘-- the government to proceed via the indictment route. but

the government ‘paid less than lip service to this pro-—

cedure. Historically, the grand jury was more a shield of

the accused rather than a vehicle to reduce an accusation

to written form. The English writers took this view: Lord

John Somers, The Security of Englishmen’s Lives, or the —

Trust, Power and Duty of Grand Juries of England (Dub-

lin; 1766); Sir John Hawles, The Englishman’s. Right

(Boston) 1693, Alexander Brodie ed., Phila. 1798;. and

Henry Care, English Liberties, Fifth ed. (Boston) 1721.

Somers referred to the protection of the grand jury say-

ing: ‘‘The King’s interest and honour is more concerned

~in the protection of the innocent, than in the punishment

of the guilty.’’ p. 36.

In protecting the accused, the English grand juries

were cautioned to compare the testimony of each witness. |

Lord : Somers thought that the separate examination of

witnesses in secret would’ protect the accused and enable

them to ‘‘compare all. their several answers together,

they might possibly discern marks enough of falsehood,

to shew that their testimonies ought not to be depended

upon . . .’”? p. 32. Care noted that the grand jury by |

examining witnesses secretly and separately could ‘‘note

_ their Variations and Contradictions, to ask them sudden

questions . ..’’ p. 209. The grand jury assumed a greater

protective role here in pre-Revolutionary times. Younger,

Grand Juries and the American Revolution, Virginia Mag-

azine of History, Vol. 63, pp. 257-268. The works of Care

’ and Hawles were available to and well considered by col-

onists in the use of grand juries, Richard D. Younger,

The People’s Panel (1963), Boston University Press, pp.

== |

22-23; Charles Warren, History of the American ‘Bar,

(1913) Boston, ‘p. 34. on See ee .

‘The above wittens all emphasize the role of the grand

jury to scrutinize testimony of the witnesses with caution -

- ag Care said, supra, ‘‘they are sworn not only to inquite,

but diligently to inquire ... and sift the Witnesses. .”’ .

p. 207. An accused must. hank the _same-right to “‘sift the

witnesses”’ through _the-use of ‘modern methods of tran- _

- seription. ‘The rule of secrecy has no application at the

time of trial. Certainly, the early writers above speak of -

secrecy only during the grand jury procedure. The rule

/of secrecy during trial as invoked by this Court ‘as a bar

to access to grand jury minutes is reflected in United

States v. Proctor & Gamble Co., 356 U.S. 677, 681; Pitts-

burgh Plate Glass Co. v. United States, 360 U. S. 395;

United States v. Johnson, 319 U.S. 503, 513, Costello v. .

United States, 350 U.S. 359, 362; and Dennis v. United

States, 384 U.S. 855. None of these cases rest on or cite

any precedent, with one exception, infra, for their rule

that the rule of secrecy accompanies’ the grand jury wit-.

ness into the trial court. In Proctor & Gamble this court

-in referring to the rule of secrecy. relies upon United

States v. Rose, 215 F.2d 617, 628-629 (C.A. 2), which in

turn relies on United States’ v. Amazon Industrial Corp.,

55 F.2d 254, 261 (D.C.D. Md.) for the rule. But neither

_ Rose nor Amazon cite precedent for this rule. Petitioner .

! respectfully submits the above cases have been in error

as a matter of. legal history in holding that the rule of.

secrecy should apply at the time of trial.

(4) The.Instruction on the Presumption. The stat-

ute says that on a trial for violation of subsection (b), a

presumption arisés: from possession of an intent to use

the card for purposes of identification and that the de-

ee aN ae —19—

- fendant may overcome the presumption by explaining

away the possession to the satisfaction of the jury. The |

trial court instructed the jury over objection that guilt

. could be found on proof of only three elements: (1) pos-

session; (2) of a falsely made certificate; and (3) knowl-

edge by the accused of the false making (R. 111). On this

instruction, even the courtrooni clerk who had physical ~

possession of Exhibit 1 and who heard the defendant

admit the card was not issued to’him would be guilty and ~

would be foreclosed from explaining away his possession. —

' Similarly, the defendant who says he was unaware the

card was in his possession is foreclosed. Since the pre-

sumption serves to put the burden of going forward to

negative the presumed facts on the accused, Casey v.

United States, 276/U.S. 413, 418, the accused is antitled to

‘an instruction informing the jury that. the presumed facts

may be negated. See Morrison v. California, 291 U.S. 82,

96; Y ee Hem v. United States, 268 U.S. 178; 9 Wigmore,

Evidence §2485 (3rd ed. 1940); Model Penal Code, §1.12

. (5) (Prop. Off. Draft’ 1962).. The failure to instruct in

accordance with the terms of the statute is in conflict

with a well accepted rule acknowledged by this Court in. —

‘Umited. States v. Gainey, 380 U. 8. 63, .64.

Conclusion

: For the foregoing reasons, it is ‘respectfully submitted

that this petition for a writ of certiorari should be granted.

aaa Respectfully submitted, .

@rorcz J. Francis

| Fraxces Dz Lost.

670 Capitol Life Center —

' - Denver, Colorado 80203

rat Attorneys For Petitioner .

we

_ Appendix A

Opinion Below (372 F.2d 482)

Before Lewis and ALDRICH, Circuit J udges; and Staney,

District J udge.

‘Sran ey, District: Judge.

‘Appellant was convicted of possession of a certificate

purporting to be a Selective Service Registration Certifi-

- eate, known by him to have been falsely made. The indict-

ment clearly charges violation of the fifth clause of 50 U.

S.C.A. Appendix, §462(b), which makes it an offense for

any person to possess ‘‘any certificate purporting to be a

certificate issued pursuant to [the Universal Military.

Training and Service Act] * * * which he knows to be

falsely mace * * *,”

Appellant testified in his own behalf at his trial. He

admitted that on the date charged he had in his possession |

the registration: certificate which was introduced in. evi-

dence as government’s Exhibit 1; that he had purchased

it from one Chilly for five dollars; that Chilly had made

‘it up in his presence; and that he himself had signed the

name ‘‘ Joe Scott’”’ in the place provided for the signature

of the registrant.

Nccdinsinedl*s Exhibit 1 purports to be a registration

certificate, SSS Form No. 2, issued by Local Board No. .

10, Jefferson County, Colorado, certifying that one J oseph

Thomas Scott was duly registered November 22, 1961.

It bore the number 15-10-43-103,. ‘and the signature of

“Lois Maxton” as clerk of the local board. The Deputy ~

State Director of Selective Service testified that the num-

ber shown on Exhibit 1 would not appear on a certificate

—j]4—

regularly issued by a Colorado ‘board; that Local Board ©

No. 10 had not had a clerk named Lois Maxton since en- |

actment of the 1948 Selective Service Act; that the printed

- . matter on the face of the exhibit conformed to that on

\.. certificates regularly issued: by Colorado. -boards; and that

a search of his records ‘tevealed no registrant. named

J oseph Thomas Scott. }

. Thus it was established that Nene had Exhibit 1

in his possession and that he knew the material inserted

in the blank spaces on the exhibit had been placed thereon .

by persons other than those authorized to complete the

form. If then, Exhibit 1 was in fact ‘fa certificate pur-

porting to be a certificate issued pursuant to’”’ the Select- |

. ive Service Act, violation of §462(b) was established.

Appellant argues that it is the false making of the

form that is the basis of the offense, ‘*‘not. the filling in

of spaces on a genuine form,’’ and since there was no

proof that the blank form was not genuine the govern-

‘ment failed. to prove violation of §462(b). This a

is unsound. -

Exhibit 1, before its blank pone were filled in by.

Mr. Chilly and appellant, was not a certificate. It did not

even purport to be a certificate until the blank spaces

were filled in and a signature purporting to be that of

the clerk was affixed. A certificate ig a document which -

serves ag evidence or as written sadtiadesls of status. (See

‘Random House Dictionary). Any

As was said by the Eighth Circuit in referring toa “

statute making it unlawful to use any false certificate of -

citizenship, ‘‘ (a) certificate which is false in respect to

those facts. which alone would justify its’ issuance is’ as

COREL EEL TENA AC PEL ELE OE AMES eleenie a

iit within the mischief. of the statute as a forged or

counterfeit instrument.’’ Dolan v. United States, 133 Fed.

440, 451 (8th Cir. 1904). £ .

Ajpelinnt complains of the refusal ‘of the trial éourt i

to give. a requested instruction:

-- The Court instructs the jury that if it should find

from the evidence beyond a reasonable doubt, that the

' defendant had in his possession-a registration cer-

- tificate not duly issued to him, then such possession

shall be deemed sufficient evidence to establish an

intent to use such certificate by the defendant for _

purposes of false identification or representation, un-

less the defendant explains ‘such possession to your

satisfaction. = :

The requested instruction might properly have been given

| if the charge had been laid under the’ second clause of

§462(b), having to do with possession of a certificate. with

intent to use it for purposes of false identification. .The

indictment here was not drawn under the second . clause,

and the trial court carefully and: properly informed the

jury as to the essential elements of the offense charged

in the indictment. ,

' The proceedings of the grand poe which indicted ap-

| pellant were not recorded, no reporter being present.

Appellant contends that failure to record and transcribe

' the testimony of grand jury witnesses operated to deprive -

him of his right to use their grand jury. testimony for

impeachment purposes at the trial.. He does not complain

of the trial éourt’s refusal to require’ production of grand

jury testimony as did the defendants in Dennis v. United -

States, 384 U.S. 855 (1966). Here, as in Welch v. United

—16—

‘States, ....F.2d.... (10th Cir. 1966) [No. 8097 ], the testimony

had not been recorded and there was no transcript within .

the pee ee or control of the government.

There is no romania that grand jury proceedings —

- be transcribed.* United States v. Cioncheti, 315 F. 2d 584

(2d°Cir. 1963). ,

“We have examined the entire record and find no error.

AFFIRMED.

*Even aia the 1966 amendment to Rule 16,; F.R.Cr.P., author-

izing 2 of a defendant’s own grand ng Boman “dis-

is required only ee ee recorded and

nena be transcribed.” Notes of Advisory Committee, Rule

=" a

Appendix B 1

Constitution of the United States:

~ The Fifth Amendment provides, in part: No person

shall be held to answer for a capital or otherwise in-

famous crime, unless on a ProneneNs ¢ or’ indictment of

a grand jury; —

Statutes:

50 U. 8. C., App. 462(b) provides:

Ug.

Any person (1) who knowingly asain or delivers’

-to another, for the purpose of aiding or abetting the mak-

ing of any false identification or representation, any reg-

istration certificate, alien’s certificate of nonresidence, or

any other certificate issued pursuant’ to or prescribed by

the provisions of this titlé [Sections 451-454, 455-471 of

this Appendix], or rules or regulations promulgated here- .

under; or (2) who, with intent that it be used for any —

purpose of false identification or representation, has in

his possession any such certificate not duly issued to him;

or (3) who forges, alters, or in any manner changes any

such certificate or any notation duly and validly inscribed

thereon; or (4) who, with intent that it be used for any

purpose of false identification or representation, photo-_

graphs, prints, or in any manner makes or executes any

engraving, photograph, print, or impression in the likeness. -

of any such ‘certificate, or any colorable imitation thereof ;

or (5) who has in his possession any certificate purporting

to be a certificate issued pursuant to this title’ [said sec- .

tions], or rules and regulations promulgated hereunder,

which he knows to be falsely made, reproduced, forged,

counterfeited, or altered; or (6) who knowingly violates

ili. i: a

e

or evades any of the provisions of this title [said sec-

tions] or rules and regulations promulgated pursuant

thereto relating to the issuance, transfer, or possession of

such certificate, shall, upon conviction, be fined not to ex-

ceed $10,000 or be imprisoned for not more than five years,

or both. Whenever on trial for a violation of this sub-

section the defendant is shown to have or to have had

possession of any certificate not duly issued to him, such

possession shall be deemed sufficient evidence to estab-

lish an intent to use such certificate for purposes of false

identification or representation, unless the defendant ex-

plains such possession to the satisfaction of the jury.