Petition for Writ of Certiorari — Hansen v. United States

-ja?- ; e p ro

SUPREME COURT. 0.2 — | | JUN 8 1969

JOHN F. DAVIS, CLERK

IN THE ms |

Supreme Court of the United States

OcTOBER TeRM, 1968 | P

<a )74

} _ Howanrp Dean Hansen, Petitioner ©

. ‘oa. Vv. |

Untrep States or AMERICA, Respondent

UNITED STATES COURT OF APPEALS

| | PETITION FOR A WRIT OF CERTIORARI TO THE

| FOR THE EIGHTH CIRCUIT

JosEPH H. Bortum, III &

Hengel Building a

Pierre, South Dakota 57501

Pxuue J. Lesser

Lesser & Lesser.

1030 15th St., N. W.

Washington, D. C. 20005

Counsel for Petitioner

Paess or Brnon S. ADaMs Printine, Inc., WasHincron, D.C.

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Cp Spt,

TABLE OF CONTENTS

| ; a red te Page

SD 5 5 cops cnciauecasebdasdus ey nabaueees 1

Jurisdiction .......... Sa suae ievedtue heel heicedes Cee

Questions Presented .........5.....000. Pertreretre 2

Pee NOE oo once ees ccsttsedenvre as sneretaenees 3

: Statement ....... ueedcuaes CTet ee ee cecesewensvces 6

Reasons for Granting the ee ee dp essvoeewes 12

COMGIUBION onc ccvccvevccevesasscevecesccevecbescce 23

E | 3

| Appendix: |

Opinion of: the United States Court of sents for

Se I RIOD bch o dsvcueetcssadvabesuuwece la

Judgment .............. weeseecees eeeevegerss «++ I4a

_. INDEX OF CITATIONS 7

Avery v. State of Georgia, 345 U.S. 559 ........ Orr ae

5 Bakara v. USD. TEP UM. WT nc vccccvccccveccce ree

es Coleman v. Alabama, i i i osdannewsenes weeded ae

: Brown v.*Allen, 344 hil S. 443 (1953) Spee morse ene 18

Dennis v. United States, 384 U.ts. 855 .......... 2, 13, 14, 16

Dow v. Carnegie-Illinois Steel Corporation, 224 F. 2d, :

414 (1955), cert. denied, 350 U.S. 971 ............ 20

Eubanks v. State of Louisiana, 306 U.S. 584 ...... wo ago a

Gevinson v. Uhited States, 358 F. 2d°761, 766 (1966),

cert. denied, 385 U.S. 823 ..... 0... ccc ccckocces

Giles v. Maryland, Ce ss cesccusahoeuauweeee 16

ee Ee 8 eee rere 17

Hernandez v. State of Texas, 347 U.S. 475, 481, 482 . I, 18

Hill v. State of Texas, 316 U.S. 400 .................. 17

Kotteakos v. United States, 328 U.S. 750 ............ 22

Neal v. State of Mississippi, 162 U.S. 565 ............ 17

Norris v. State of Alabama, 294 U.S. 587 ......... ere

Reece v. State of Georgia, 350 U.S. 85 .............. 17

Smith v. State of Texas, 311 U.S. 128 ................ 17

- Strauder v. West Virginia, 100 U.S. 303 ....5......... me

Whitus v. State of Seat ff Se | en 17

2 . ~ ot Be ES rng

rs , x A - ae

aa ed

iiss able of Contents Continued

: 8 , a, , Page

3B UBS. GE on ccevesses poavdageaneebavce wvesasvee ©

OO, OE oir vo vvcc nonce sceexscees Seeeee 6

28 U.S.C. Sec. 1254(1) ............ ed eudee ads eka 2

Federal Rules of Criminal Procedure, Rule 16

2, 3, 12, 13, 14, 16, 22

( INTHE . |)

apace Court of the United States |

Oorcnmm TERM, 1967

No.

Howarp Dean HaAnsEN;: Petitioner

. ae. |

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

‘FOR THE EIGHTH CIRCUIT

Petitioner, Howard Dean Hansen, prays that a Writ

of Certiorari issue to review the judgment of the United

States Court of Appeals for the Eighth Circuit, affirm-

ing the judgment of conviction of petitioner for grand

larceny in the Central Division of. United States Dis-.

trict Court for the District of South Dakota.

‘OPINION BELOW

The opinion of the Court of Appeals is not yet_--

officially reported, but is printed in the Appendix to

‘this opinion (App. 1a-13a). No opinion was written by

by the District Court.

7

ae 2. (eee

2

| ites

JURISDICTION

_ The Judgment’ of the Court of Appeals was entered

on April 25, 1968 (App. la-lla). On May 23, 1968

Justice White entered an Order extending: the time

for filing a Petition for Certiorari to and including

June 10, 1968. The jurisdiction of this Court. is in-

voked under 28 U. 8. 0. Sec. 1906 (1).°

QUESTIONS PRESENTED |

1. (a) What are the sanctions to be applied’ ‘by the

trial court when after the entry of a Discovery Order

pursuant to Rule 16 of the Federal Rules of Criminal

-. Procedure the prosecution fails to comply with the

Discovery Order?

(b). Once an Order for Discovery hes béen sinteitein

what discretion does a trial court have in trying te

determine if the withheld materials might have been

useful to the deferise? —

(c) Whether the rule of Dennis v. U nmited States,

384 U.S. 855 should apply to a failure to produce docu-

- ments within the seope of a Rule 16 Discovery Order?

(d) Whether the violation of the duty of the prose-

cution to make a disclosure under the provisions of

Rule 16 (g) constitute a denial to the _— of

- due process of law?

2. (a). Does an unrebutted showing of the absence from

_ jury service for a period of ten years of a distinct and

separate economic class found in the judicial district

or community constitute a prima facie case of discrim-

ination in jury sélection ? ae

(b) Do-the established basic standards for deter-

mination of discrimination in ‘the pence of j jury selec-

oD

nn,

q. | . 3.

tion in cases s involving state court — differ’

‘from those to be applied in cases nn United

States Court proceedings ?

(ce) Must conscious intentional acts of diseximination

in jury selection upon the part of those charged with

such selection be shown to make a prima facie case .

of improper jury selection, or may such a showing be

made by showirig the results, of the methods used hed

_ ‘the jury selectors? .

(d) When a distinct and separate economic class

- constituting approximately ten percent of the commu-

nity has been shown to have been consistently excluded

‘from jury service, what if any burden has a criminal

defendant to show individual prejudice ?

-(e) May an unrebutted’ and unchallenged Affidavit

in Support of a Motion to Challenge a Jury Array

which had been stipulated into evidence by the govern-

ment be considered as a part of a prima facie showing

of discrimination i in jury selection?

3.. Whether the whole, of a criminal proceeding may

) be viewed in its entirety to determine whether. the

petitioner was deprived of a fair trial ?

‘ RULES INVOLVED :

Rule 16 of the. Rules of Criminal: Procedure as

amended February 28, 1966 provides: ~

‘‘(a) Defendant’s Statements; Reports of Ex-

aminations and Tests; Defendant’s Grand Jury

Testimony. Upon motion of a defendant the court

-may order the attorney for the ‘government to —

permit the defendant to inspect and copy or photo- .

graph any relevant (1) written or recorded state-

ments or confessions made by the defendant, or

copies thereof, within. the possession, custody or

4

control of the government, the existence of which

is known, or by the exercise of due diligence may

become known, to the attorney for the government,

(2) results or reports of physical or mental exam-

inations, and of scientific tests or experiments made

in connection with the particular case, or copies

thereof, within the possession, custody or control

of the government, the existence of which is known,

or by the exercise of due diligence may become

known, to the attorney for the government, and

(3) recorded testimony of the defendant before

a grand jury. _

‘ (b) Other Books, Papers, Documents, Tangi-

ble Objects or Places. Upon motion of a defendant:

the court may order the attorney for the govern-

ment to permit the defendant to inspect and copy

or photograph books, papers, documents, tangible

~ objects, buildings or places, or copies or portions

' thereof, which are within the possession, custody

or control of the government, upon a showing of ©

materiality to the preparation of his defense and

that the request is reasonable. Except as provided

in subdivision (a) (2), this rules does not authorize

the discovery or inspection of reports, memoranda,

or other internal government documents made by

government agents in connection with the investi-

gation or prosecution of the case, or of statements

made by government witnesses or prospective gov-

ernment witnesses (other than the defendant) to

agents of the government except as provided in —

18'U.S.C. See. 3500.

*“(e) Discovery by the Government. If the court

grants relief sought by the defendant under subdi-

vision (a)(2) or subdivision (b) of this rule, it

may, upon motion of the government, condition its ~

order by requiring that the defendant permit thé

government to inspect and copy or photograph

scientific or medical reports, books, papers, docu-

ments, tangible objects, or copies or portions there-

an

D

of, which the defendant intends to produce at the

trial and within his possession, custody or control,

upon a showing of materiality to the preparation

of the government’s case and that the request is

reasonable. Except as to scientific or medical re- .

ports, this subdivision does not authorize the dis-

covery or. inspection of reports,, memoranda, or

other internal defense documents made by the de-

fendant, or his attorneys or agents in connection

with the investigation or defense of the case, or of

statements made by the defendant, or government

. or defense witnesses, or by prospective government

» or defense witnesses, to the defendant, his agents

_ or attorneys. .

“¢(d) Time, Place and Manner of Discovery and

Inspection. An order of the court granting relief

under this rule shall specify the time, place and

manner of making the discovery and inspection

permitted and may prescribe such terms and con-

ditions as are just.

e‘‘(e) Protective Orders. Upon a sufficient

showing the court may at any time order that

the discovery or inspection be denied, restricted,

- or deferred, or make such other order as is appro-

priate. Upon motion by the government the court

may permit the government to make such showing

in whole.or in part, in the form of a written state-

ment to be inspected by the court in camera. If

the court enters an order granting relief following

a showing in camera, the entire. text of the gov-

ernment’s statement shall be sealed and preserved

in the records of the court to be made available

to the appellate court in the event of an appeal by

the defendant. SN

““(f) Time of Motions. A motion under this

rule may be made only within ten days after ar-

raignment or at such reasonable later time as the

court may permit. The motion shall include all

relief sought under this rule. A subsequent mo- ~

PPO NTO

6

tion may be made only/upon a showing of cause

why such motion would be in the interest of justice.

‘*(g) Continuing Duty to Disclose; Failure to

Comply. If, subsequent to compliance with an

order issued pursuant, to this rule, and prior to

or during trial, a party discovers additional ma-

terial previously requested or ordered which is

subject to discovery or inspection under the rule,

he shall promptly notify the other party or his

attorney or the court of the existence of the addi-

tional material. If at any time during the course

of the proceedings it is brought to the attention

. of the court that a party has failed to comply with

this rule or with an order issued pursuant to this

rule, the court may order such party to permit the .

discovery or inspection of materials not previously

disclosed, grant a continuance, or prohibit the

party from introducing in evidence the material.

not disclosed, or it may enter such other order

as it deems just under the circumstances. As

amended Feb. 28, 1966, eff. July 1, 1966.’’

\

STATEMENT

Petitioner was charged by Indictment dated May

26, 1967 with grand theft of three head of cattle from

an Indian on an Indian Reservation in violation of

18 U.S.C. 1152 and 18 U.S.C. 661. ;(R. Vol. IT p. 1)’

Previous Indictments had been filed. (R. Vol. I,

p. 1; Vol. III, p. 1) Following arraignment on. the

1 References herein to the record of proceedings below will be

cited ‘‘R’’ and will refer to the volume and page. This record was ,

before the Court of Appeals and in accordance with the motion of

appellant the Clerk of the Court of Appeals was authorized to

transmit the original record including the typewritten transcript

of testimony to this Court. This record consists of six volumes

each individually paginated except Vol. V which is the second

volume of the typewritten transcript. Reference to the printed

joint appendix will be cited *‘App.’’.

. 7

Indictment of March 13, 1967 a Motion for Discovery -

was filed. (R. Vol. I, p.2) After hearing a Pre-trial

Order was entered granting the discovery motion. (R.

Vol. I,.-p. 19) This Order in part provided:

‘‘It was ordered that copies of any papers, docu- |

ments, or books of livestock commission companies,

sales barn, livestock buyer or livestock seller, which

are in the possession of the United States or any

agent thereof, intended to be used by the govern-

ment at trial, shall be delivered to counsel for the

defendant.on or before May 1, 1967.’’ (R. Vol.

I, p. 20)

Certain records of livestock commission’ companies

and livestock buyers were turned over to counsel for

petitioner prior to trial. :

During the trial the ieee offered in evidence

seventeen exhibits which had never been shown to the .

Court or counsel for the petitioner. These seventeen

exhibits were records of livestock transactions and

were clearly within the scope of the pre-trial Order.

(R. Vol. IV, pp. 274-275; p. 291; pp. 223-226; Vol. V, .

pp. 627-641) Of the seventeen exhibits thirteen were |

admitted into evidence with four later being stricken

by the Court for failure of the government to connect

them up with the defendant. Thirteen of the seventeen

exhibits were ‘‘buyer sheets’’,? which were records of |

sales barns and cattle buyers showing cattle bought by

the buyer named on the sheet on the particular date

shown on the buyer’s sheet. Some of these were cattle

2For some reason the exhibits introduced at trial were not in-

eluded in the record forwarded to the Court of Appeals by the

District Court Clerk. If Certiorari is granted a motion will be.

' presented to have these exhibits vata a part of the record and

forwarded to this Court.

Pd

8

purchased from the petitioner, or purchased from per-

sons who originally purchased from the petitioner.

Prior to trial petitioner filed a motion to challenge _

_ the jury array. (R. Vol. II, pp. 2-4) An Affidavit in

support of this motion was also filed. (R. Vol. I pp.

49-56) A hearing was held on the Motion challenging

the jury array and the -Affidavit was stipulated into

evidence. (R. Vol. IV, p. 23) Four reports from

the Bureau of Census were admitted into evidence.

(R. Vol. IV, pp. 23-24) Two witnesses were called —

upon behalf of petitioner. (R. Vol. IV, pp..25-57)~

_ The Affidavit ‘in suppert of Motion and pees

_ presented at the hearing on the Motion to challenge the

jury array showed that of the fifteen counties com-

prising the Central Division of the United States Dis-

trict Court for the District of South Dakota 9.1%

were employed as farm laborers or farm foremen and

3.5% were employed as laborers. (R. Vol. I, p. 51)

The government conceded that farm laborers and farm

foremen are a separate economic class of the commu-

nity. (App. p. 5a) Mr. Warren May, an attorney who

had been practicing before the United States District

Court for the Central Division for eighteen years tes-

tified that he had reviewed the jury panel for each

~ term of that Court for at least the past ten years and

that few if any farm laborers or farm foremen had

ever been called for jury service. (R. Vol. pp. 28-29)

Mr. May further testified that in almost all cases the

jurors called for service in the Central Division of —

the United States District Court for the District of

South Dakota were from the upper economic and social

strata. (R. Vol. IV, pp. 41-42)

‘The Affidavit in support of the motion based upon

defendant’s exhibits 1, 2, 3 and 4 showed the median

9

family income in the Central Division to be less than

$4,000.00 per year. (R. Vol. I, p. 50) That there

were no farm laborers or common laborers on the jury

panel called for the May 1967 term. (R. Vol. II, p. 16)

The government offered no witnesses in rebuttal other

. than a Deputy Clerk whose only testimony was that

: she typed the letters for the Clerk of Courts: who was

| responsible for selection of one-half of the jury panel.

She testified that-she knew nothing of how the Clerk

—gelected the names of jurors and that she knew nothing

of the methods employed by the Jury Commissioner, |

Mr. Francis Reagen, who selected fifty percent of the —

jurors. (R. Vol. IV, pp. 64, 66-70, 72)

The motion challenging the jury array was denied.

From the evidence admitted during the government’s

ease the folowing appeared:

In October of 1965 Jerome Irving, an Indian ranch-

ing on the Crow Creek Indian Reservation, was missing

some cattle. (R. Vol. IV, pp. 134-136) That Irving’s

cattle were branded with a reverse RV connected brand.

That the petitioner worked on a ranch belonging to

his mother in the same general area as the ranch of

Mr. Irving: On October 5, 1965 petitioner sold fourteen

head of cattle at the Magness Faulkton Livestock Ex-

change in Faulkton,.South Dakota, and on October

26, 1965 petitioner sold twenty-five head of cattle at

the same sale barn. (R. Vol. IV, pp. 263-269, 287-290)

Of the cattle sold by appellant a Mr. Bill Henderson

purchased six head. The six head purchased by Mr.

Henderson were mixed with other cattle which he had

purchased in the same general area and all of these

eattle were fed by Mr. Henderson during the winter of

10

1965 and 1966. On Avril 21, 1966 Henderson sold

‘ seventy-one head of cattle, which: included the six

which were purchased from Petitioner, at the Highmore

Livestock Exchange in. Highmore, South Dakota. (R.

Vol. IV, pp. 307-314) - ae

Of the seventy-one head of cattle sold by Henderson

in Highmore five were purchased by a Ray. Anderson. —

(R. Vol. IV, p. 309) On the same’ day Anderson pur-

; chased one hundred eleven other head of cattle at the

same sale barn. The one hundred: sixteen head of cattle’

purchased by Anderson, which included. five head pur-

chased from Henderson, were combined with other cat-

tle purchased by Anderson in the same area at approxi-

mately the same time to make up a herd of approxi-

mately 300 head. of cattle which were shipped by

Anderson to a Kenneth O’Hare at Ainsworth, Ne-

braska. - (R. Vol. IV, pp. 347-348)

Of the seventy-one head of cattle sold by Henderson

on April 21, 1966 in Highmore one was purchased by

a Sylvester Schmidt. 7

Of the cattle sold by petitioner in Faulkton on

October 26, 1965, three were purchased by Gerald

Boekelheide and were combined with some 221 or 222

head of other cattle purchased by Boekelheide in the

same area during tle fall of 1965 and were shipped

by Boekelheide to Dexter Gunderson of Irene, South

Dakota. (R. Vol. V, pp: 357-365)

Later i in 1966 or 1967 investigators found two or

three heifers in O’Hare’s pasture with Irving’s brand

on them. They also.found one cow in Gunderson’s

pasture with Irving’s brand on it. The cow purchased

by Schmidt also had what was alleged to be Irving’s

brand upon it. (R. Vol. V, pp. 391-394)

11

Irving, the complaining witness, was shown to be a..

poor operator who was absent from his ranch upon

many occasions and for extended periods, who drank

daily and kept no records as to the number of head of

eattle’that he owned but relied upon the annual check

of the Production Credit Association who had a mort-

gage on his cattle to determine the number of cattle

that he owned and the year’s production. There was

considerable conflict in the testimony concerning death:

losses of cattle by Irving and his method of operation.

“The thirteen buyer’s sheets which the government

presented and offered in evidence at the trial were

buyer’s sheets showing purchases by Boekelheide, Hen-—

derson, Anderson and O’Hare. These sheets showed

not only the cattle purchased on the particular dates

_ shown on the sheets by these people from the peti-

tioner but also purchases from persons other than the

petitioner. At the time of the introduction of each

of the exhibits by the government petitioner objected -

to the introduction of the exhibits into evidence for

the reason that they were within the purview of the

discovery order and had not been shown. to the Court

or to counsel for the petitioner, or in the alternative

for a continuance for the purpose of making further in-

vestigation based upon the material contained in such

exhibits, or in the alternative for a mistrial. The ob-

jection to the exhibits was in each tnstance overruled

and the motions denied. (R. Vol. IV, pp. 274-275,

p. 291, pp. 223-226, Vol. V, pp. 627-641) Irving ad-

mitted that in 1963 he had branded at least one of peti- -

tioner’s family’s cattle and had later given petitioner

a bill of sale to the particular cow which he had —

branded. (R. Vol. IV, pp. 155-161-166)

The petitioner did not testify upon his own behalf.

12

Numerous fact witnesses testified in support of veti- .

tioner’s defense as to Irving’s method of operation, .

death losses by Irving in the past, and inconsistencies

in the brand alleged by Irving to have been put on

the cattle which he claimed were stolen and those sald

by him the year before. (R. Vol. V, pp. 482-615) The

jury after deliberating from 3:00 p.m. to 10:30 p.m.,

returned a verdict of guilty. (R. Vol. V, pp. 692-696)

Petitioner was sentenced to four years imprisonment

and to a One thousand ($1,000. = dollar fine. (R. Vol.

V, pp. 710-711)

REASONS FOR GRANTING THE WRIT

1. Rule 16 of the Rules of Criminal Procedure is a

new rule. Section (g) of that rule makes the duty to ©

} disclose material subject to a discovery order continu-

ing. The rule is unclear as to the authority of the

trial court to determine if undisclosed matters might

have been helpful to a defendant’s counsel in investi-

gating the case, in preparing for trial, or in preparing

for cross-examination of the government’s witnesses.

The rule provides certain sanctions which may be

' imposed in the event of non-compliance,’ but the phrase _

‘‘or it may enter such other order as it deems just

under the cricumstances’”’ is not clear. It is this alter-

native which has and will present problems to the ©

Courts. The duties of the trial court, the rights of a

8‘‘Tf at any time during the course of the proceedings it is

brought to the attention of the Court that a party has failed to

comply with this rule or with an order issued pursuant to this rule,

the Court may order such party to permit the discovery or inspec-

tion of materials not previously disclosed, or grant a continuance,

or prohibit the party from introducing in evidence the material |

not disclosed, or it may enter ‘such other order as it deems jusb

under the circumstances.’

13

criminal defendant and the extent of a Court’s dis-

' eretiorf in a case of non-disclosure of material subject

to a discovery order should be made clear early in the

history of this rule. Guidelines must be established.

Petitioner believes this case presents all of the re-

‘quirements to allow this Court to clarify Rule 16 and ©

set forth such guidelines. _ | :

The Court below while holding that the exhibits not——

furnished to petitioner’s counsel should have been so

_. furnished, was of the opinion that ‘‘Eiven if error was

- committed by the trial court in failing to apply any

of the sanctions permissible under Rule 16 (g), the

error must be prejudicial to the defendant’s substantial —

rights before the case should be reversed on that

ground,” and then found that such error was not

prejudicial. (App. p.12a) The Court below was also

of the opinion that the matter of sanctions. was dis-

eretionary with the trial court. The opinion cited

Gevinson v. United States, 358 F. 2d 761, 766 (1966),

cert. denied, 385 U.S. 823, as standing for the propo-

sition that an application for relief under Rule 16

is a matter within the sound discretion of the Court,

and that the controlling test would be whether there

was an abuse of that discretion. The Court clearly

confused the discretion vested in the trial court to

determine whether or not a motion for discovery should

be granted with the discretion with which a trial court

is vested when.after issuing a discovery order. matters

within the purview of that order are not disclosed. The

discretion of the trial court, once a discovery order has

been issued, is analogous to that set forth in Dennis V.

United States, 384 U.S. 855 at 874-875:

‘‘In any event, ‘it will be extremely difficult for

even the most able and experienced trial judge

14

under the pressures of conducting a trial to pick

out all of the grand jury testimony that would be

useful in impeaching a witness.’ Pittsburgh Plate

- Glass, 360 U.S., at. 410, 79 S. Ct. at 1246 (dis-

senting opinion). Nor is it realistic to agsume

that the trial court’s judgment as to the utility

of material for impeachment or other legitimate

purposes, however conscientiously made, would ex-

haust the possibilities. In our adversary system,

it. is enough for judges to jtdge. The deter-

‘mination of what may be to the defense.

can properly and effectively ke made only by an -

- advocate. The trial judge’s function in this respect

is limited to deciding whethey a case has been

made for production and to sugervise the process: ©

For example, to cause the elimination of extraneous.

matter and to rule on applications by the govern-

ment for protective orders in unusual situations,

such as those involving the nation’s security or

clearcut dangers to individuals who are identified

by the testimony produced.”’

Once a trial court has determined that a discovery

order should be entered the amount of discretion vested

in the trial court to determine whether materials not

furnished were or wére not prejudicial to a defendant

is, under the Dennis rule, strictly limited.

As stated in Dennis the disclosure rather than sup-

pression of relevant materials ordinarily promotes the |

proper administration of criminal justice. It is es-

sential to the’ability of criminal defendants to receive

disclosure of relevant materials and to the general

search for truth in a criminal proceeding that a deter-

mination be made as to what test of harmless error

is to: apply to violations of discovery orders issued

pursuant to Rule 16.

15

The: decision below did not set fortli any standard

for-determining when non-disclosure will be considered

harmless error and when such non-disclosure should

be held to be prejudicial. The opinion rather attempted _

to determine whether or not the non-disclosed ma-

terials might have been helpful to petitioner and peti-

tioner’s counsel in preparation for trial and in cross-

examination of witnesses and held that such non-dis-

closed materials were merely supplementary to and

explanatory of other evidence made available to -peti-

tioner’s counsel. Such was not the Spet.

This was a wholly circumstantial evidence case. ‘In

no instance was any animal found in the possession

of a direct purchaser from the petitioner. In every

instance cattle purchased from the petitioner had been

mixed with other cattle purchased in the same area

at approximately the same time and had been resold

by the original purchaser with cattle acquired from

persons other than the petitioner. The buyer’s sheets

showed more than the seller’s sheets which had been

furnished by the government to petitioner’s counsel.

The seller’s sheets showed only the cattle sold by peti-

tioner and the purchasers from him. The buyér’s sheets |

showed the cattle purchased by the buyers from peti-

tioner and other cattle purchased by those buyers on the

same day from sellers other than the petitioner. Given

these buyer’s sheets in advance, petitioner’s counsel |

would have been in a position to further investigate

the source or sources of the entire herds from which

cattle ultimately identified as those of the complaining

witness came. Petitioner would have been prepared

to cross-examine the owners of the herds in which such

eattle were found as to the source of these cattle in a

more knowledgeable manner. .

16

To allow the trial court to review non-disclosed ma-

- terials and make a determination of what might or

might not be useful to the defense would be to severely

limit the usefulness of Rule 16 and would be directly

contrary to the rules set forth in Dennis.

The court below was apparently of the opinion that

_ Rule 16 ‘was designed only to apprise a defendant of

the charges against him.* The rule clearly contem-

plates much more than a mere apprisal of the charges.

See notes of Advisory Committee on Rules, 18 U.S.C.A.,

Rule 16, 1967 Cumulative Annual Pocket Part, p. 176-.

178.

Once a discovery order has been entered ‘aaa

to Rule 16 the duty to disclose is clear and absolute. |

Early in the history of Rule 16 a determination should

‘be made as to whether or not the failure to make

such disclosure constitutes a denial of due process of

law within the rule set forth in | Giles v. Maryland, 386

U.S. 66.

Whether petitioner has been denied due process of

law, and was by the failure of. the government to dis-

close thwarted in his search for the truth and in prep-

aration for trial and denied his rights under Rule 16

pose very serious and substantial constitutional issues.

Petitioner believes that this case contains all of the ele-

ments and is appropriate for a clear determination by

this Court of the rights and duties arising from Rule

16 and the determination of a standard for the deter-

mination of harmless or prejudicial error resulting

from violations of the duty to disclose under Rule 16.

4““Without going in needless detail, the government furnished

Hansen with the seller’s sheets on all the cattle in question and

other information relating to the present owners. and location of |

the eattle. This was certainly sufficient to apprise Hansen of the

— against him.”’

17

2. The right of a criminal defendant to a trial by

a jury selected in such a manner as to insure a rea-

sonable cross section of the community without the

exclusion: of any cognizable or recognizable group or

class has long ago been declared by this Court.’ Re-

cently many cases have come before this Court raising”

the issue of what constitutes a discriminatory exclusion

of any particular group and of the burden. imposed

upon a defendant to show discrimination in the selee-

tion of jurors.® |

_ Many of the recent cases have dealt with the problem

of jury practices under state court procedures. In ee

* Hernandez v. State of Texas, 347 U.S. 475, 481, 482, it —

was held that a showing of long continued exclusion

of a certain class from jury service over a long period

of time was sufficient to show discrimination in the |

selection of jurors and.that ‘‘The result bespeaks dis-

crimination, whether or not it was a conscious decision

on the part of any individual jury commissioner.”? See

also Coleman v. Alabama, 88 S. Ct. 2, Whitus v. State

of Georgia, 87 S. Ct. 643, Smith v. Texas, 311 U.S. 128.

The Court below held ‘‘Most of the cases dealing with

jury service discrimination are based on state laws

and state court practices, and the standards applied to

determine the validity of jury selection methods in fed-

eral cases are different from the standards applied to

5 Strauder v. West Virginia, 100 U.S. 303; Neal v. State of Mis-

sissippi, 162 U.S. 565; Ballard v. U.S., 329 U.S. 187; Glasser v.

U. S., 315 U.S. 60; Smith v. State of Texas, 311-U.S. 128; Hill v.

State of Texas, 316 U.S. 400; Norris v. State of Alabama, 294 U.S. .

587. .

6 Avery v. State of Georgia, 345 U.S. 559; Reece v. State of -

Georgia, 350 U.S. 85; Hernandez v. State of Téxas, 347 U.S. 475;

Eubanks v. State of Louisiana, 356 U.S. 584; Coleman v. Alabama.

88 S. Ct. 2, October 16, 1967; Whitus v. State of Georgia, 87

S. Ct. 643, January 23, 1967. .

18

state court cases as the applicable standards rest on a

different source of power. Brown v. Allen, 344 US.

443 (1953).”’ (App. p. 7a) The question of whether

or not the rights of a criminal defendant to have a

fairly constituted jury are different when he is,tried in

: - a state court than when he is tried in a federal court

should be determined by this Court.

In Hernandez v. Texas, 347 U.S. 475, 418, it was

stated :

‘‘When the existence of a distinct class is demon-

strated, and it is further shown that the laws, as

written or applied, single out that class for differ-

ent treatment not based on some reasonable classi-

fication, the guarantees of the Constitution have

been violated.’

In this case the petitioner showed the existence of a

distinct elass and further showed that few, if any,

members of this class had been called for jury service

in the United States District Court for the Central

Division for the past ten years. For the Courts to hold

that if such a showing were made in a state proceeding ©

the constitutional rights of the petitioner would have

been violated, and he would have been entitled to a

new trial by a fairly constituted jury but that such a

showing in federal court does not show a violation of

his constitutional rights and did not deprive him of a

fair trial, is to make a travesty of the Constitution.

If the lower court decision on this point’is allowed to

stand, it would create a dual standard clearly. not con-

‘templated by nor allowable under the United States

Constitution. ©

The question of what constitutes systematic -exclu-

sion of any particular wage group, economic or social

class in a federal court should be decided. The Court

a

19

*

‘below was of the opinion that a showing of the existence

of a distinct economic class in the community and of

the fact that few, if any, members of that class have

been called for jury service for at least ten years did

not present a prima facie case of jury discrimination. |

In this respect the Court stated :

‘“‘In this case there is no evidence actually as to

~ how the jury lists were made up. There is no evi-

dence of any intentional or systematic exclusion:

of either younger persons or farm laborers from

the jury list, and the evidence on the lack of farm

laborers on the present jury and in some prior lists

is vague and nebulous.’’ (App. p. 9a)

The ‘question of how far a defendant must go to make

out a prima facie case of jury discrimination should

be decided.

In this case the petitioner presented an Affidavit

which was stipulated into evidence which Affidavit set

forth certaih statistical data obtained from United

States Bureau of -Census reports which reports were

admitted into evidence at the hearing-and setting forth

“the results of investigation by the affiant of the makeup

of juries in the Central Division. of the United States

District Court for the District of South Dakota for

the past ten years. (R. Vol. I, pp. 49-56) Mr. Warren

May testified that in his years of practice before the

Court he had had at least one case-in every term for

the past ten years, that he had fully investigated each

jury panel and that upon the basis of review of his

_ office records and in reliance upon his memory few if

any farm laborers or common laborers had been. called

for jury service in the Central Division for the past

ten years. (R. Vol. IV, pp. 25-50) Mrs. Rose Mead

testified that for a number of years she had been the ~

20

manager of the local-office of the South Dakota Em-

ployment Service, that she received reports from other

state offices and that in her opinion farm laborers

constituted a -distinct group of workers and were a

class unto themselves. She further testified that the

number of farm laborers had increased since the 1960

census. (R. Vol. IV, pp. 51-57) The government ad-

mitted in its Brief in the lower court and the lower

court found in its decision that farm laborers consti-

tuted a separate economic class in the Central Di-

vision. (App. p. 5a) - ,

.The government called only one witness in rebuttal,

That witness was a Deputy Clerk who testified only as"

to the letters which the Clerk mailed out to request the

names of prospective jurors. She further testified _

that the Clerk selected one-half of the names that went

into the master wheel and that the Jury Commissioner

selected the other one-half of the names. She stated

that she had nothing to do with the selection process,

that she knew nothing of the methods employed by the

Jury Commissioner and did not know how the Clerk

made the selection or the decision as to who should

be called for jury service. (R. Vol. IV, pp. 59-77)

The Court below found that the petitioner failed to

make a prima facie case of discrimination in the selec-

tion of the jury. The Court apparently rejected the

test set forth in Dow v. Carnegie-Illinois Steel Corpora-

tion, 224 F. 2d 414 (1955), cert. denied 350 U.S. 971,

that jury officials must not’ exclude any cognizable

groups from jury lists through neglect as well as

through intentional conduct. And held that actual dis-

’ erimination will not be presumed but must be proved

or admitted.

21

Whether a criminal defendant can rely upon a show-

ing of long standing exclusion of a eognizable group

from jury service to make a prima facie case of jury

discrimination in the federal courts or whether he must

show intentional exclusion of such a group should once

and for all be decided by this Court.

The Court below apparently was of the opinion that

while the defendant had claimed individual prejudice

he had not shown himself to be a member of the ex-

cluded class. Accordingly the’ opinion of the Court

below has indicated that if petitioner is not a member

of the class or group excluded from jury service he

may not claim prejudice or attack the jury array. Many

of the recent cases of this Court setting forth the stand-

ards for jury selection have involved members of a

specific elass or group claiming that members of their

group or class have been excluded from jury service.

The question of whether or not exclusion of an eligible

group from jury service affects the rights of all de-

fendants or only those who are members of the ex-

cluded group or class should be determined by this

Court. This Court has ruled in Ballard v. U.S., 329

U.S. 187, that exclusion of a specific group from jury ©

service injures the entire jury System and tends to de-

‘stroy the basic democracy . and classlessness of jury

personnel.

In the opinion of petitioner the web Court opinion

if allowed to stand would create grave and serious ques-

tions as to the meaning of the recent decisions of this

_ Court concerning what constitutes a prima facie case

of jury discrimination and just what burden a criminal

defendant has to make a primia facie showing of such

discrimination which will require rebuttal by the gov-

ernment, and.would in great part defeat the strides

\

\>

22°

forward which have been recently made in obtaining

and protecting the rights of criminal defendants to a

trial by juries selected in such a manner as to reason-

ably assure a representative cross section of the com-

munity. To prevent this Certiorari should be granted.

3. The question of whether or not a combination of

all of the facts involved in a criminal proceeding can

be viewed in their entirety to determine whether or

not a criminal defendant has had a fair trial is worthy

of consideration by this Court. The question of whether

or not the onduct of the Jury Commissioners in select-_

ing jurors for the Central Division of the District Court

' for the District of South Dakota, the failure of the gov-

ernment to comply with the provisions of the discovery

order and of Rule 16, coupled with other error con-

tained in the record should be considered in its entirety

to determine whether such events had a substantial

_ effect on the result of petitioner’s trial goes to the very

heart of a determination of what constitutes harmless

error and what constitutes prejudicial- error. See

Kotteakos v. Umited States, 328 U.S. 750.

_ Where a series of events such as are shown in the

record in this matter exist a criminal defendant should

have the right to have the record looked at in its en-

tirety to determine whether or not he received a fair

trial.

_. Se

CONCLUSION

For the foregoing reasons, petitioner respectfully

submits that the Petition for a Writ of Certiorari

should be granted.

JosEPH H. Bortum, IIT

Hengel Building

Pierre, South Dakota 57501

Pup J. LESSER x

Lesser &. Lesser

1030 15th St., N. W.

Washington, D. C. 20005

Counsel for Petitioner