Reply Brief — Nightingale v. United States

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SUPREME COURT. U. 5 <a FILER

IN THE SEP 18 1957

‘Supreme Court of the Unite 7 Sheree

OCTOBER TERM, 1967

“NO. 423

ERNEST NIGHTINGALE, Petitioner

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UNITED STATES OF AMERICA

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On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit. —

PETITIONER’S REPLY BRIEF

VINCENT M. Casey, Esq.

720 Grant Bldg.

Pittsburgh, Pa. 15219. .

—_— —

SMITH BROS. CO. INC., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

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In THE

Supreme , Court of the United States

OCTOBER TERM, 1967

NO. 423 Ps

ERNEST NIGHTINGALE, Petitioner

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NITED STATES OF AMERICA \

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit. ae

PETITIONER'S REPLY BRIEF

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ee Petitioner’ s Reply Brief

The Government’s Brief (Page 1) misstates the’

question presented. The important substantial error

was in requiring petitioner Nightingale to stand trial .

with other defendants on three separate and distinct

conspiracies, separate as to time and place, at, one trial.

There was no series of transactions as contemplated by

‘ ‘Rule 8b-of Criminal rules. The respondent was further

in error.in its statement of the case where it states

the petitioner was found guilty under a multiple count «

indictment charging conspiracy and substantive of-

fenses in the forging and uttering of three sets of

United :States Savings Bond. The petitioner calls the

Court’s attention to the fact that there were three sep-

‘arate and distinct conspiracy counts. -The indictment

did not charge a common scheme, but charged three

different independent conspiracies.

Petitioner's Reply Brief.

; The 23rd Count charges a conspiracy . , beginning

, February 26, 1963, as to the Hammond bonds. The 24th

_ Count charges a separate conspiracy beginning March

28, 1963, as to the Stofcheck bonds. The 25th Count _

charges a separate conspiracy on May 10, 1963, relating. |

to the Stellitano: bonds. The Court charged the jury _

_ that three separate conspiracies were staat —

-ingale App. 52a.)

- The Government’s argument that there was a com- ;

“mon scheme is not borne out by the record. As stated

above. there were three separate conspiracies with sub-

stantive counts relating ‘to each separate conspiracy.

The indictment did not allege a common scheme but

separate transactions and the case was tried on the -

basis of separate transactions.

Petitioner relies on McElroy v oA: 164 U.S. 76.

That case is indistinguishable fre m the petitioner’s \

‘case. The-Government seeks to distinguish the McElroy

‘case a ee basis that there no count linked all the

defendan ;

In McElroy . -. Petitioner’s case

No. 5332—McElroy, Bland, 23rd Count — Stringi,

Henry Hook,Charles Nightingale, Simon &

Hook, Stufflebeam, Jen- Horovitz

nings - Conspiracy to forge and

Assault with intent to kill utter Hammond bonds

- Elizabeth Miller, April 16, February 26, 1963, at Ber-

1894 lin, Pa.

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Petitioner’s Reply Brief.

y® M cElroy

er 5333—McElroy, Bland,

Henry Hook, Charles

Hook, ‘Stufflebeam, Jen-

nings — |

Assault with intent to kill

Sherman Miller, or ™

1894

No. 5334—McElroy, Bland,

Henry Hook, Charles

_. Hook, Stufflebeam, Jen-

. nings att 3

Arson Eugene Miller

House May 1, 1894 |

No. 4843—McElroy, Bland,

Henry Hook

Arson of Bruce Miller

House April 16, 1894

Petitioner’s case

1st Count—Stringi, Night- |

ingale; and Horovitz

Fo rg ing one Hammond

Bond Feb. 26, 1963

2nd Count—Stringi, Night-

- ingale ahd Horovitz .

Uttering one Hammond

Bond February 26, 1963, at

Berlin, Pa.

3rd Count—Stringi, Night-

‘ ingale, and Horovitz

Forging one Hammond ~

bond February 26, 1963, at

Berlin, Pa.

4th Count—Stringi, Night-

ingale and Horovitz

Uttering one Hammond

Bond at Berlin, ‘Pa. .

5th Count—Stringi, Night-

ingale and Horovitz

Forging one Hammond

bond February 26, 1963, at

Berlin, Pa:

6th Count—Stringi, Night-

- ingale and Horovitz

Uttering One Hammond

Bond February 26; 1962, at

Berlin, Pa. \

In McElroy —

‘

o.

Petitioner’s Reply Brief.

Petitioner’s case

24th Count — Cochran, |

Stringi, Nightingale and

Simon irae

Conspiracy to forge and

utter Stofcheck Bonds,

March 28, 1963 at Berlin,

Pa. : .

7th Count—Stringi, Night-

ingale and Cochran . :

; Forging one Stofcheck

- Bond March 28, 1963, at

Berlin, Pa.

* 8th Count—Stringi, Night-

ingale and Cochran

Uttering one Stocheck

Bond, March 28, 1963, at

Berlin, Pa. |

9th Count—Stringi, Night-

ingale, and Cochran

Forging one Stofcheck

Bond, March 28, 1963, at

Berlin, Pa.

10th Count — Stringi,

Nightingale and Cochran

Uttering one Stofcheck |

Bond, March 28, 1963, at

‘Berlin, Pa.

In Mc Elroy

oar ; 5

Petitioner’s Reply Brief.

Petitioner’s case

11th Count — Stringi,

Nightingale and Cochran

Forging one Stofcheck

Bond, March 28, 1963, at

Berlin, Pa. - .

12th Count — Stringi,

Nightingale and Cochran

. Uttering one Stofcheck

Bond, March 28, 1963, at

Berlin, Pa.

25th Count — Conspiracy

Nightingale and Stringi,

May 10, 1963, to forge and

utter Stellitano Bonds,

Somerset, Pa.

15th, 16th, 17th and 18th

Counts — Nightingale and

Stringi

Forging and uttering Stel-

litano Bonds, May 10, 1963,

Somerset, Pa.

From the above, it is apparent therefore that i in Mc-

Elroy, the first, second and third counts linked all of the

defendants.

?

Petitioner submits that all of the Court of Appeals

cases cited by him are all in eonflict with the decison of

the Court of Appeals for the Third Circuit All of peti-

tioner’s cited cases involve multiple defendants and

separate transactions and are unconnected. The Govern-

ment has lost sight of the fact that in petitioner’ 8 case,

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Petitioner’s Reply Brief.

there are three separate and distinct, conspiracies charged

and the jury’s verdict indicates that each of the con-

spiracies were independent and unrelated.

The Government’s Brief demonstrates the import-

ance of ‘the question involved and the confusion that

exists in a single trial of multiple defendants on separate

charges. Therefore for the reasons stated above as well

‘as those stated in the Petition for Writ of Ceértiorari,

petitioner prays that his Petition for Certiorari be.

ramet.

©

VINCENT M. CASEY |

Attorney for Petitioner

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