Petition for Writ of Certiorari — Gandy v. United States

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LIBRARY ae te ae | FRLED

SUPREME COURT. U, & FEB 15 1968

SUPREME COURT OF HE wu am a}

UNITED STATES

October Term 1967

No. 1122.

JIMMY D. GANDY and ALBERT J. BERRY.

Petitioners,

versus .

a STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit.

JOS. P. MANNERS

City National Bank Building

25 W. Flagler Street

Miami, Florida

Attorney for Petitioners

’ Gandy and Berry.

sand- |

RICHARD M. GALE

Biscayne Building

19 W. Flagler Street —

"oy “Miami, Florida

Attorney for Petitioner Berry

{3

INDEX

| Page

OPINIONS BELOW 2 ao

JURISDICTION | eee

_ QUESTIONS PRESENTED | | +

CONSTITUTIONAL AND STATUTORY -

PROVISIONS | Pe

STATEMENT OF THE CASE _. ¢

REASONS FOR GRANTING THE WRIT. 7

CERTIFICATE OF SERVICE — 12°

Sea ie ean ee

CITATIONS -

Glasser v. United States,

315 U.S. 60, 62 S. Ct. 457, 86 Led 680°. nica :

Michelson v. United States,

835 U.S. 469, 69 S.Ct. 213 98 L ed 168 ees

: United States v. Phillips, -. :

7th Cir. 1954, 217 Ps 2d 485

Page

10

CONSTITUTION OF THE UNITED STATES

Sixth pois FORO) SOO ee ee

UNITED STATES CODE

Bvsa..171

18 U.S.C. § 2812 - |

18 U.S.C. § 2818

SUPREME COURT OF THE

UNITED STATES

October Term 1967

| No.

‘4

sIMMY. D. GANDY and ALBERT J. BERRY

Petitioners,

versus

UNITED STATES OF AMERICA, :

_ Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit.

‘Petitioners Jimmy D. Gandy and Albert J. Berry

pray that a Writ of Certiorari issue to review the judg-

ment of the United States Court of Appeals for the Fifth *

Circuit entered in the -above-entitled case on December

11th, 1967.

OPINIONS BELOW

. The judgment and commitment of petitioner Jimmy

D. Gandy entered by the United States District Court for |

the Southern District of Florida is unreported and is.

>.

2

_ printed in Appendix C hereof, infra, App. 11-12. The

Judgment and Commitment of petitioner Albert J. Berry

is likewise unreported and is printed in Appendix D here-.

of, infra, App. 13-14. ©* - . : ,

: 5) a

The opinion of the United States Court of Appeals for

the Fifth Circuit-is as yet unreported and is printed in

Appendix A hereto, infra, App. 1-9, pera

-. » JURISDICTION

The judgment of the United States Court of Appeals

-for the Fifth Circuit was entered on ecember 11, 1967,

(Appendix A, infra,‘ App. 1-9). 2A timely ‘petition: for

rehearing was denied on January 17, 1968 (Appendix B,

infra, App. 10). The. jurisdiction of this Court is invoked

_ under 28 United States Code, § 1254(1).

' QUESTIONS PRESENTED |

—y |

Whether the act of a trial judge in appointing pe- -

titioner Berry’s attorney to’ also represent petitioner, .

Gandy, who is an indigent, where no waiver of the funda-

_ Mental Constitutional Right to assistance of (separate)

counsel was obtained by the trial judge and where a seri-

ous conflict of Interest existed, constituted a violation of

the Sixth Amendment.

TL.

Whether the Fifth Circuit’s approval’ of the trial

judge requiring the prosecutor to cross-examine Berry’s .

: i, @

chareater witnesses with questions in the: -wrong form and

the trial judge’s failure to instruct the jury on the purpose

,and extent of cross-examination: of character witnesses,

“constituted a direct conflict with prior pronouncements of

law of this Court'in Michelson,v. United States, 335 U. S.

469, 69 S.Ct. 213, 93 L ed 168-and of the Court of Appeals

for the Seventh Circuit in United States v. Phillips, 217

F.2d 435 (1954).

“CONSTITUTIONAL AND STATUTORY PROVISIONS :

The Sixth Amendment to the Constitution of the _

United States provides i in Pertinent pat « as follows:

“In all cclintindh prosecutions the accused shall

*** have the assistance of counsel -for _ de-

fence”’, - 7

The vintetei under which the setinuaies were charged

are ‘set forth in eee: E, infra, App. 15.

STATEMENT OF THE CASE

.The petitioners, ji immy yD. Gandy and Albert J. Berry,

were jointly indicted in the United States District Court

for the Southern District of Florida. The indictment was

in twenty-three counts, The first count charged a conspir-

‘acy (18°U.S.C.A. 371) to transport stolen motor. vehicles

in intérstate commerce knowing them to be stolen in vio-

~ Jation of Title 18 U.S.C. A., § 2312 and that they conspired

to receive, conceal, store, barter, sell and dispose of the

stolen motor vehicles moving in interstate commerce know-

ing the same to be stolen in violation of Title 18 U.S.C.A.,

; . . . q

4 :

_ § 2313. The remaining twenty-two counts charged sub-

" stantiye violations of the statutes.

- Single Counsel antes:

aes Adverse Interests

* (Pursuant to Court Order)

Pritr to trial, petitioner Berry retained J oseph P.

Manners, a member of the Florida Bar, to represent him |

and to defend him ‘against the charges contained in the

twenty-three count indictment. Notwithstanding that peti-

tioner Berry had already-retained J oseph P. Manners, the.

trial court compelled Mr. Berry’s counsel. to also represent

"petitioner Gandy, who was adjudged insolvent (R 435,

436). :

During the course of the trial, Mr. Berry, a business-

man in the export field, testified that he bought certain

automobiles from one, Mackey (R 276). He further testi-

fied that petitioner Gandy introduced him to the said

Mackey (R 278). Mr. Mackey sold the automobiles in.

_ question to Mr. Berry with apparently valid titles from

Alabama (R 277 ts

?

Petitioner ‘Berry was in dire — of the testimony of

petitioner Gandy in ordér to show the jury that he had no

knowledge that the automobiles in question had been

stolen. Yet Mr. Berry’s own attérney could not call Mr.

Gandy to the witness stand on behalf of Mr. Berry, as Mr.

Manners determined that it would be in Mr. Gandy’s best

interest not to call-him to the witness stand even though

this decision would be against the best interest of his .

client, Berry. . ‘

5

The Cross-Examination of Petitioner Berry’s

Character Witnesses

Petitioner Berry called six character witnesses. The

-prosecutor indicated to the Court that he was going to

inquire On cross-examination of the character witnesses

whether they knew about Mr. Berry’s application for citi+

zenship in the United Statés and whether they knew that

the application was withdrawn and the reason for such

withdrawal (R 294, 296). The Court then advised the.

prosecutor that it would be proper for him to ask each

witness:

“Tf he knows anything about Mr. Berry’ s appli-

cation for citizenship in the United States ane

whether or not that application was withdrawn

and if he knows the reason why***” (R 296).

(Emphasis added). « -

Petitioners’ counsel objected te the prosecutor asking

said questions and said objection was overruled (R 297).

The prosecutor then proceeded to ask (in substantially the -

same form) each of the six avache witnesses on Cross-

examination as follows:

“Q Do you know whether gr not the defendant,

Albert J. Berry, withdrew’ his en

for citizenship?***

“Q Do you know if he withdrew it and the

reason why?” (R 299-300; 302, 305, 306,

308, 309, $11).

In one instance the questions were asked of one char-

acter witness in the following form:

Oe ERS Fe

BOC OT

6 ,

“Q Mr. Weinstein, do you know that in some-

-time in 1960 Mr. Berry made an application

as to citizenship: to become a citizen of the

_ United States of America?

“A Ido .not know that.

“Q Did you know, sir that Mr. Berry withdrew

his application for citizenship?

“A Nosir, J did not.”

“Q And if Mr. Berry withdrew his application

for citizenship do you not know, sir?”

“A No sir.”

(R 308, 309) (Emphasis added).

The Trial court, after dealing the aforesaid ques-

tions to be asked of the character witnesses ‘on cross-

examination, failed to instruct the jury as to the purpose.

for the cross-examination as well as the extent to which it ©

could be considered by the jury. ;

The case was submitted te the jury, which found both

petitioners guilty on all twenty-three counts (R 436-438).

The Trial court then entered its judgment and commit-

ment as to petitioner Berry (R 440-442; Appendix D).

The Trial court also entered its judgment and commitment

as to petitioner Gandy (R 442-443; Appendix C). :

The Court of Appeals for the Fifth Circuit affirmed

the judgments (Appendix A). In its decision, the Court

held that this Court’s case of Michelson, supra, isa “Mas-

terpiece i in the field and particularly that language ‘(T)he |

7

form of the inquiry “Have you heard ” is generally ap-

proved, and “Do you know?” is not allowed’ ”.

Further, by its judgment, the Fifth Circuit also held

that a trial court has no duty to instruct a jury as to the

purpose for which cross-examination of character wit-

nesses is permitted as well aS the extent to which it can be

considered by a jury.

REASONS FOR GRANTING THE WRIT

I.

The petition for rehearing filed in the Court of Ap-

-peals*for the Fifth Circuit charged that a fundamental

and plain error was committed when the petitioners were

denied their right to assistance of counsel contrary to the

Sixth Amendment (R 461-462). The denial of this essen-

tial right occurred as follows:

Joseph P. Manners, a member of the Florida Bar,

- was retained by petitioner Berry to represent him in the

twenty-three count indictment. Subsequent to Mr. Berry

retaining Mr. Manners, the trial judge entered an order

directing Mr. Manners, on the morning of the trial, to

also. represent petitioner Gandy, an indigent. (R 9, 435,

436).. Mr. Manners was compelled to’ accede to the wishes

of the trial judge as seen from his comments at the com-

mencement of the trial:

“MR. MANNERS: . (R 3)

May it please the Court, I am in a rather dif-

ficult position, if your Honor ‘please. I do not

PETTY PGE IS TEL AN Foe te —

yer rs -

Dre

:

8

know what to do here. I would like to havea

brief talk with Mr. Gandy about the opening

statement. May I confer with Mr. Gandy be- -:

fore I announce?”

There was no ‘intelligent and competent waiver of the

right to (separate) counsel by the petitioner Berry ap-

pearing in the record. Further, as pointed out in the

“STATEMENT OF THE CASE”, Mr. Berry. needed Mr.

Gandy’s testimony to prove that he ( Berry) had no

knowledge the automobiles in question were stolen. Al-

though Mr. Manners, as attorney for Mr. Berry, would

_ have called Mr..Gandy to the witness stand, Mr. Manners

could not, as attorney for Mr. Gandy, allow the latter to

testify. A grave and sérious conflict resulted from the

dual representation.

The denial of right to counsel under the facts and

circumstances of the case, sub judice, was fully discussed ~~

_ by this Court in Glasser v- United States, 315 U.S. 60, 62

S. Ct. 457, 86 L ed 680. This Court i in an analagous sit-

uation held:

ss +d asda of counsel’ guaranteed ae the «

Sixth Amendment contemplates that such assist- -

ance be untrammeled and unimpaired by a Court

Order requiring that one lawyer shall simul-

. taneously represent conflicting interests. If the

right to the assistance of counsel means less than

this, a valid constitutional safeguard is substan-

tially impaired.” :

9

“While an ciel may waive the rig’.t to coun-

‘sel, whether there is a proper waiver should be

‘clearly determined by the trial court, and it |

would be fitting and appropriate for that deter-.

mination to appear upon the record.”

There is no question that petitioner Berry’s defense

‘was substantially prejudiced by his sharing counsel with

his co-defendant at trial. Three of the government wit-

nesses testified that petitioner Gandy gave them mone¥

to rent automobiles which were eventually shipped to:

Puerto Rico (R 14, 15, 18-20( 2, 26, 96, 97, 127-129).

The evidence showed that petitioner Berry bougi:*

these rented’ automobiles from a. Mr. Mackey who pro-

vided apparently valid titles from Alabama (R 276-278).

Petitioner Gandy introduced-Mr. Mackey to Mr. Berry ©

-—_(R-278). It is apparent that the government presented

a stronger case against Mr. Gandy than it did against

Mr. Berry. Nevertheless, both petitioners were severely

prejudiced by being compelled to be nn by the

same attorney.

The trial court and the Court of Appeals for the Fifth

Circuit clearly violated petitioners’ rights for assistance —

of counsel by forcing Mr. Berry to share ‘his retained

counsel with Mr. Gandy, notwithstanding that a conflict

of interest existed and that petitioner Berry never waived

his right to separate counsel.

Il.

This Court in Michelson v. United States of America

335 U.S. 469, 69 S.Ct. 218, 93 L ed 168, which is a land- |

Ee ee {

‘

J TAN ING ORE EY whine

10 ; ee

mark case on cross-examination of arndion witnesses,

held that the proper form of inquiry on cross-examination

of a character witness is “Have you heard” and not “Do

you know”. The trial court, however; instructed the prose-

cutor that it would bé,proper form to ask each character.

witness on cross-examination “if he knows anything about

‘Mr. Bérry’s application for citizenship in the United States

and whether or not that application was | withdrawn “and

if. he knows the reasons why***”. (R296) (Emphasis

added). In its, opinion, “the Fifth Circuit applauds the

Michelson opinion as being a masterpiece in the field. Yet,.

the Fifth Circuit fails to follow the principles of law pro-

nounced in } Michelson, supra.

The trial court jets compounded its error by al-

lowing questions to be asked oni cross-examination with-

out instructing the jury as to the purposes for which the

cross-examination was permitted as well as the extent to

_ which it could be considered by the jury.

In Michelson, supra, the trial judge warned the jury

on three occasions of the limited purposes of cross-exami-

nation of character witnesses. The Court of Appeals for

the Fifth Circuit made only a passing reference in its

decision to the failure of the trial judge to give a limiting

instruction on the purpose of the cross-examination of the

character witnesses. Nevertheless, the legal effect of the

Fifth Circuit’s judgment of affirmance is to create irrec-

oncilable conflict with this Court’s decision in Michelson,

supra and also with the decision of the Seventh Circuit in

the case of United States v. Phillips, 217 F.2d 435 (1954).

The case of United States v. Phillips, supra, held that

there is a duty upon the government to tender the proper

il.

instruction or upon its failure to do so there is a duty of

the trial court of its own volition to instruct the jury

as to the purposes for which the cross-examination of a

‘character witness is permitted, as well: as the extent to

which it can be considered by the’ jury.

The trial court failed to instruct the jury that the

incident concerning petitioner Berry’s application for .

eitizenship was not to be considered as having taken

place. This left the jury to consider the “fact” of the

application and its withdrawal ag well as to speculate

as to the reasons forthe withdrawal (including the col-

lateral matter of petitioner Berry being a foreigner).

It is seapectfally wiuiitied that this Honorable

Court issue its Writ of Certiorari directed to the Court

of Appeals for the Fifth Circuit, and after a review of |

the decision, that it be reversed.

Respectfully submitted,

JOS. P. MANNERS -and- RICHARD M. GALE

City National Bank Bldg. Biscayne Building

25 W. Flagler Street 19 W. Flagler Street

Miami, Florida . Miami, Florida

‘Attorney for Petitioners Attorney for Petitioner

Gandy and Berry Berry

By | By

-mrcmemtcnnaemewinae

Fae .

42

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof was mailed

to Solicitor General, Department of Justice, Washington,

D.C. this day of February, 1968.

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

Ge = For The Fifth Circuit

o | No. 23980

@

JIMMY D. GANDY and ALBERT J. BERRY,

> . _ Appellants,

Versus

_ UNITED STATES OF AMERICA, oe

be | Sve Appellee. 7

Appeals from the United States District Court _

_. for the Southern District of Florida

(December 11, 1967.)

Before BROWN, Chief Judge, COLEMAN and SIMPSON, .

Circuit Judges.

acer

_ 9 COLEMAN, Circuit Judge: This prosecution involved

eleven stolen motor. vehicles which were shipped from.

Miami to San Juan, Puerto Rico. The indictment was in

twenty-three counts, the first count charged a conspiracy

[18 U.S.C.A. 371] to transport stolen motor vehicles in

interstate commerce knowing them to have been stolen, in

violation of Title 18 U.S.C.A. § 2312. The remaining

twenty-two counts charged substantive violations of the

statute. Appellants were convicted on all twenty-three

ai i alae alll

Dow,

a ORT es PE AIR SIRE ihe 5 me

Wa sec eane , Ri, Ne :

counts. Berry was sentenced to three months imprisonment

and fined $1,000 as to Count 1 and placed on three years

_ probation. Gandy was given concurrent sentences of two

years imprisonment on each of the counts. We affirm.

FIRST SPECIFICATION OF ERROR

An accomplice, not indicted, but named as a co-con-

spirafor, testified for the Government. He was thoroughly

, cross examined by defense counsel as to any offers of ©

leniency or reward in return fer ‘his testimony. At one

point, he testified categorically, “I wasn’t promised any-

thing or any deals”. Anticipating the argument of defense

counsel that this testifying co-conspirator had specifically :

been given a reason to hope for or to expect some form of.

reward or leniency in return for his testimony, the prose- <

cutor in his opening argument saic, “T cannot tell you

sincerely enough that that is absolutely false and that |

there is no basis in fact at all in the trial except [defense .

counsel’s] own attempt to infer that...” . 0

It is here argued that this statement by the prosecutor -

necessitates a reversal under the teachings of Napue v.

Illinois, 360 U.S. 264, 79 SiCt. 1173, 3 L.Ed. 2d 1217, and

United States v. Marchése, 9 Cir., 1965, 341 F.2d 782. _

| The: answer to this is that in Napue the’ witness

falsely testified that he had received no promise’‘or con-

sideration in return for his testimony, whereas the prose-—

_ cution had made such a promise and did nothing to correct

the false testimony, to the contrary. - .

a

i

In Marchese, a post conviction habeas coxpus proceed-

ing, there was an allegation that there had been.an im-

eo

. App. 3 - o *

proper agreement between the prosecuting ony, and

.the principal witness, not fully revealed.

In our opinion the principles involved in Napue and

Marchese have no application here for there is absolutely

no proof of any such promises or agreements in this rec-

* ord. It can be argued, as it was argued to the jury-below —

.in an attack upon the co-conspirator’ s credibility, that

the sentence he received in the state courts might imply

such ‘an arrangement, at least with state officials. Even,

so, there is no testimony to contradict the positive state-

ment that there was hited no Promises or deals.

Moreover, before argument began the trial court ex-

: ‘pressly directed the attention of the jury “to the fact. that

what the lawyers have to’say is not evidence and is not to

by r eived by you as evidence”. Certainly, lawyers in

jury arguments are never t6 make representations

of Fact on their own-responsibility. They are advocates and.

not witnesses. At the same. time, the language used here |

cannot clearly be said-to constitute an individual tep

. sentation but was merely an argument alluding to what

‘ the witness had said, that’ he had been promised nothing.

And if this is not the case, certainly any possible prejudice -

to the defendants was clearly obviated by’the positive pre-

. argument instruction pf the court that what the lawyers

' have to say is not evidence and is not to be considered by

the jury as evidence. Reversible error is not to be predi-

‘cated on this occurrence,

SECOND SPECIFICATION OF ERROR

The appellant’ Berry took the stand in his own de-

fense. He testified that the automobiles in question had

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App. 4

been offered to him “as repossessed cars from the finance

company in the State of Alabama’’, that he never knew

' the cars were stolen, and that -he treated them as legiti-

mate products. On cross examination, he testified that he

had no. business dealings. with co-defendant Gandy but he

had one time sold him an air conditioner. He did, however,

admit that the man from whom he allegedly bought the |

automobiles, by the name of Mackey, was introduced to:

him by Gandy. He admitted that he shipped the automo-

biles to Puerto Rico. He said that he paid cash. for them

and further conceded that the only records he had with

him to show that he paid for the cars were bills of sale. -

He admitted that he had not issued any check in payment —

for sid of the eleven cars in + naan. .

He was. _ asked:

Q. Now, what weneniie do you have, business records,

indicating the sale and purchase of these cars? .

A. All-my records are in [counsel’s] hands.

J

Q. Does [counsel] have them?

A. Yes, sir.

Q. May I see them?

COUNSEL. No, you didn’t show me any records.

You did not show, me your work product. It is unfair.

PROSECUTOR. ‘These are not work renee, These :

are his records, the defendant’s records. —

THE COURT. Sustained, |

-

- 4

App. 5

a | -

=

PROSECUTOR (Addressing Berry). |

Q. Are you willing t show me the books and records

showing the notations of the sales of these cars and the

_ purchases?

A. If my attorney says so.

BY COUNSEL. d say no. If your Honor please, I

would like the jury admonished as to the law here or the

principle involved. . .

THE COURT: | aes: |

“Gentlemen of the jury, you are not to draw any.

inference, any unfavorable inference from this. The de-

fendants are not required to produce records unless they

desiré to do so, and you are not to draw an unfavorable

inference from his lawyer’s refusal to produce the record”.

During his closing argument the prosecutor argued

that if Mr. Berry had hard, cold documentary evidence in

_ the form of ledgers or journals Showing these transactions

to support his testimony he would have shown them to the

jury, hence it was plain and simple that there are no such

documents. |

Upon objection by defense counsel, the Court re-

and the ruling yesterday was, and shall remain the same

that [the prosecittor] could not benefit by calling u

the defendants’ counse] for the production of records...

[A]nd there the matter rests”. a :

sponded, “I have ruled on this, and I ruled on it yeste yy, /

We find no error in this episode.

a a a

App. 6

_ The situation is governed by the principles stated in ~

Carpenter v. United States, 4 Cir., 1959, 264 F.2d 565:

“Firmly. rooted in our judicial history is the

principle that a defendant ina criminal case,

who cannot be compelled to testify and whose

failure to do so may not be made the subject of

adverse comment, cannot prescribe and impose ”.

limitations upon his waiver of - his privilege

against. self-incrimination when he voluntarily

takes the witness stand. When he chooses to tes-

tify freely to those events and circumstances

which tend to-support his defense, neither the

Constitution nor any consideration of justice re-

quires that he be permitted selectively to sup-

press other relevant facts which may be incrimi-

. hating or inconsistent with his defense. ‘(H)e

has no right to set forth to the jury all the facts

which tend in his favor without laying himself

open to a cross-examination upon those facts.’

Fitzpatrick v. United. States, 178 U.S. 304, 315,

20 S.Ct. 944, 949, 44 L.Ed. 1078, 1083. ‘When he

took the witness stand in his own behalf he vol-

untarily relinquished his privilege of silence, and

°° ought not to.be heard to speak alone of those

things deemed to be for his interest, and be silent

where he or his counsel regarded it for his inter-

~ est t6 remain so, without the fair. inference ._

which would naturally ; spring from his speaking

only of those things which would exculpate him

and refraining to speak upon matters within

his knowledge which might incriminate him.’

Caminett v. United States, 242 U.S. 470, 494, 37

S.Ct. 192, 198, 61 L.Ed. 442, 456.”

a iii Sah sshd selena basing

App. 7

In Johnson v. United States, 1943, 318 U.S. 189, 63

S.Ct. 549, 87 L.Ed. 704, rehearing den. 318 U.S. 801 62

S.Ct. 826, 87 L.Ed. 1164, it was held that the voluntary

offer of an accused to testify on any fact waives the right

to assert the privilege against self-incrimination and to

refrain from testifying as to such fact and others fairly

-related reasonably thereto. See also Claunch v. United

States, 5 Cir., 00%, 155 F.2d 261.

The prosecutor was entitled to ask the witness about

_his records and his willingness to produce them. We do

not pass upon the question of requiring the attorney to

produce records in his possession because the trial court

flatly declined to require it and very emphatically in-

structed the jury to-ignore that item. The appellant cer-

tainly got the benefit of that “merciful discretion” alluded

to by Mr. Justice Frankfurter in his concurring opjnion.

in Johnson, supra.

THIRD SPECIFICATION OF ERROR

Berry called six character witnesses. On cross exami-

nation the prosecutor questioned. each. of them in substan-

tially the following form:

Mr, ______, do you know [emphasis supplied] that

sometime in 1960 Mr. Berry made an application to be-

come & citizen of the United States of America?

* £ @

Q. Did you know [emphasis supplied] that Mr.

Berry withdrew his cunecue for citizenship?

Slat a air | ,

’ epee rr ep seer

e

App. 8

There were eight character witnesses, including an

attorney, a certified public accountant, a general con-

tractor, an insurance agent, arid other business men. Only.

one or two of them knew [or had heard] of Berry’s appli-

cation and none knew of its withdrawal. There is no ques~

tion, however, that there had been such a withdrawal.

The appellant argues that it was improper to ask the

witnesses whether they knew of such an event but that

the proper form of the question should have been whether .

or not they had heard, citing Michelson v. United States,

335 U.S. 469, 69 S.Ct. 218, 93 L.Ed. 168 (1948). Michelson

did so hold. The Government concedes that the questions

were not in the proper form, but argues that under all the

facts and circumstances of the case this was not so preju-

dicial as to justify reversal. Appellant further argues that

in any event this was not a proper subject for cross exam-

ination.

As stated in Michelson, when the defendant put his’

general reputation in issue he threw open the entire sub-

ject. The question propounded by the prosecutor was per-

missible, except that the witnesses should haye been asked

if they had heard of the withdrawal, not if they knew of

it. Michelson clearly holds, however, that “rarely and only

on clear showing of _prejudicial abuse of discretion will

courts of appeal disturb rulings of trial courts on this

subject”. As taught in Michelson, the District J udge held

a hearing outside the presence of the jury [Roberson v.

United: States, 5 Cir.,. 1956, 237 F.2d 536] to determine

that there was a factual basis for the inquiry. We do not

think that the awkward use of the word “Know” instead

of the word “hear” could have possibly resulted in any

prejudice to this appellant. It may well have been. to his

Canela ee dln iene alton pity

App. 9

advantage. It is not unlikely that the witnesses could have ~

heard of the withdrawal but did not know it. The’defend-

ant thus got the benefit of that distinction. The jury was:

left with no proof that the application withdrawal was —

really a fact. Interestingly enough, neither the trial judge

nor any of counsel referred to’ this citizenship item in the

instructions or argument to the jury. Prosecutors, how-

ever, would be well advised to carefully acquaint them-

selves with the opinion in Michelson, clearly a masterpiece °

in the field, and particularly that language, “[T]he form

of the inquiry, ‘Have you heard?’ has general approval,

and ‘Do you know?’ is not allowed’’.

AFFIRMED.

&>

x

| App. 10

APPENDIX B

In The.

‘UNITED STATES COURT OF APPEALS

_For The Fifth Circuit

No. 23,980

‘JIMMY D. GANDY and ALBERT J. BERRY,

Appellants,

, Vv.

UNITED STATES OF AMERICA,

| Appellee. ,

—

Appeal from the United States District Court

for the Southern District of Florida

ON PETITION FOR REHEARING

| (January 17, 1968)

_ Before BROWN, Chief Judge, COLEMAN AND

SIMPSON, Circuit Judges.

PER CURIAM:

The Petition for Rehearing.is DENIED.

App. 11

APPENDIX C

JUDGMENT AND COMMITMENT—

' JIMMY D. GANDY

(Number and title omitted)’ (Filed: August 5, 1966)

On this 5th day of August, 1966 came the attorney

for the government and the defendant appeared in person

and by counsel, Joseph P. Manners, Esq.

It Is Adjudged that the defendant has been convicted

upon his plea of Not Guilty and a Jury Verdict of Guilty

of the offense of interstate transportation of stolen motor.

vehicles, and receiving, concealing, storing, bartering and

selling motor vehicles, knowing same to have been stolen,

and conspiracy, in violation of «Title 18, United States

Code, Sections 2312, 2313 and 371, as charged in Counts 1

thru 23 of the Indictment and the court having asked the

defendant whether he has anything to say why judgment

should not be pronounced, and no sufficient cause to the

contrary being shown or appearing to the Court,

«Is Adjudged that the defendant is guilty as charged

ans. convicted. 1

It Is: Adjudged that the defendant is hereby com-

mitted to the custody of the Attorney General or his au-

thorized representative for imprisonment for a period of

TWO (2) YEARS as to each of Counts 1 thru 28 inclusive, —

or until otherwise discharged by due process of law, said

sentences of confinement to run concurrently with each

- Other.

App. 12

; It Is Ordered that the Clerk deliver a certified copy

of this judgment and commitment to the United States

Marshal or other qualified officer and that the copy serve

as the commitment of the defendant.

8/ David W. a

« DAVID W. DYER

UNITED STATES DISTRICT JUDGE

The Court recommends commitment to:

. Clerk.

App. 13

APPENDIX D

JUDGMENT AND COMMITMENT

(Number and title omitted) (Filed: August 5, 1966).

On this 5th day. of August, 1966 came the attorney

for the government and the defendant appeared and by

counsel, Joseph P,.Manners, Esq.

It Is Adjudged that the defendant has been convicted |

upon his plea of Not Guilty and a Jury Verdict of Guilty

of the offense of interstate transportation of stolen motor

vehicles, and receiving, concealing, storing, bartering and

. selling motor vehicles, knowing same’to-have been stolen, —

and conspiracy, in violation of Title 18, United States

Code, Section 2312, 2313 and 371, as charged in Counts 1

thru 23 of the Indictment and the court having asked the -

defendant whether he has anything to say why judgment

should not be pronounced, and no sufficient cause to the

contrary being shown or appearing to the Court,

It Is Adjudged that the defendant is guilty as charged

-and convicted.

It Is Adjudged that the defendant is hereby com-

mitted to the custody of the Attorney General or his au-

thorized representative for imprisonment for a period of ~

THREE (3) MONTHS as to Count 1, or until otherwise

discharged by due process of law, it being further

ORDERED AND ADJUDGED that Defendant shall

pay a fine unto the United States of America in the sum

of ONE THOUSAND ($1,000.00) DOLLARS as to Count _

_

(J

i

&

I Ce By et nt

App. 14

1, and upon default, to stand committed to the custody of

- the Attorney General or his authorized representative for

imprisonment until payment, or until otherwise discharged

by due process of law, and it is further |

. ADJ UDGED that imposition of sentence as to each of -

| Counts. 2 thru 23 inclusive shall be withheld, and the

Defendant placed on probation with this.Court for a period

of THREE (3). YEARS as to each of said, Counts under

the Standing Conditions of Probation outlined in the

. -Court’s Order entered August 1, 1964, said. periods of

: probation to run concurrently with each other.

IT IS ORDERED that execution of sentence of con-

finement shall be deferred until 9:00 A.M. Monday, Au-

gust 8, 1966 ‘at which time Defendant shall surrender him-

self to the United States Marshal at Miami, Florida.

It Is Ordered that the Clerk deliver a certified copy.

of this judgment and.commitment to the United States

Marshal or other qualified officer and that the copy serve

as the commitment of the defendant.

8/ David W. Dyer .

DAVID W. DYER

UNITED STATES DISTRICT JUDGE.

The Court recommends commitment to:

Clerk ~

{ot ln 1 ewe LGM IAN Somat hals onde.

App. 15

APPENDIX E {a

18 United States Code, § 371

If two or more persons conspire either to commit -any

offense against the United States, or to defraud the United

States, or any' agency thereof in any mannef or-for any

purpose, and one or more of such pérsons do any act to

“+

effect the object of the conspiracy, each shall be fined not...”

or both. *** oad

more than $10,000 or imprisoned not more than 5 years,

.

18 United States Code, § 2312

Whoever transports in interstate or foreign commerce

a motor vehicle or aircraft, knowing the same to have been

‘stolen, shall be fined not more thgn $5,000 or imprisoned

not more than 5 years, or both.

18 United States Code, $ 2313

_ Whoever receives, conceals, stores, barters, sells, or

disposes of any motor vehicle or aircraft, moving as, or

which is a part of, or which constitutes interstate or for-

eign commerce, knowing the same to have been stolen,

shall be fined not more than $5,000 or imprisoned not more

than 5 years, or both.