Brief for the United States in Opposition — Baker v. United States

“Wuus K.. hanes JR., anil Menviyt “Buy”

CORNELSEN, PETITIONERS c

Dh tye: v,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE |

UNI TED STATES COURT OF APPEALS FOR aad

NINTH meee

BRIEF FOR THE UNITED STATES IN OPPOSITION

Erwin N. Griswotp,

Solicitor General,

‘Frep M. Vinson, Jé,

Assistant Attorney Genirel,

te BEATRICE ROSENBERG,

ie Rok | | MARSHALL TAMOR GOLDING,

gs Ae ee he OO eee? Sy

OE LS OEP eae ae /... . Department of Justice,

Be NCES te eee sgeabeaton, D. C. 20580.

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In the Supreme Court of the United States <5

_ OCTOBER TERM, 1968:

No. 215

_ WILLIS K, BAKER, JR., and: MERVIN “Bup”

- CORNELSEN, PETITIONERS

Dv.

a STATES OF AMERICA

' ON PETITION FOR A WRIT OF CERTIORARI.TO THE

UNITED STATES COURT OF APPEALS FOR THE.

- NINTH CIRCUIT

. . ; ; a : & e

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet, App. E).

is reported at 393 F. 2d 604.

JURISDICTION

-The judgments of the court of appeals (Pet. App.

_A) were entered on April 4, 1968. -A petition for re- .

hearing was denied on May 21, 1968. The. petition

(1)

2

for a writ of certiorari was filed. on June 19, 1968.

. The jurisdiction of this Court is invoked under 28

- U.S.C. 1254(1). - ,

QUESTIONS PRESENTED

1. Whether the trial court committed reversible

‘error in its instructions relating to the scienter re-

quirement or the reasonable doubt standard. —

2. Whether petitioners were prejudiced because a

co-defendant who had pleaded guilty was permitted _

_ to testjfy against them prior to being sentenced.

. 8. Whether it was error to permit the co-defendant

. " to state, at the beginning of his direct deans, that

’ -he had pleaded guilty.

STATEMENT

After trial by j jury in the Southern District of Cali-

7 fornia, petitioners were convicted on one count of con- —

spiring with others, Rush and Stephenson, to violate

18 U.S.C. 641 by receiving and converting stolen

government property. Petitioner Baker was sentenced

_ to two years’ imprisonment and fined. $10,000 on the

conspiracy count,’ and Cornelsen to two years’ im- .

prisonment, with all but the first six months. sus-

penete. :

' Baker was the proprietor of an aircraft parts and

supply company, and Cornelsen was one of his em-

ployees (IX: R. 917). The evidence showed that Rush,

1 Baker was also convicted of a substantive count of: re-

ceiving stolen government property in violation of Section 641

-and given a concurrent sentence of two. years’ imprisonment.

=

: . 3

_ a stockman in the stowage~branch of the aviation

warehouse at the Lemoore Naval Air Station (V R.

196), stole items of equipment from the warehouse

and sold them to Stephenson, who in turn resold them

to. petitioners. The first transactions involved para-

chutes and altimeters (VI R. 387-390). Thereafter,

Baker indicated to Stephenson that he. was interested.

in aircraft instruments and would purchase all of

the instruments which Stephenson could supply (VI _

R. 393). After a time, to ensure obtaining equipment:

for which they would have a market, petitioners furn- _

ished Stephenson with written lists of specific aircraft

‘ components which they wanted (VI R. 398). When -

Rush furnished items which were similar to those

requested on the lists, but not the exact parts desired,

Cornelsen met with him and Stephenson and explained

that in the future he would provide federal stock num-

bers, which he said he had a way of obtaining, in

__ order to insure that he was getting the exact items de-

sired (VI R.,406-408). It was also decided at this

meetirig to make no further purchases for a time be- _

cause Rush informed them of a pending investigation

at the air station (VIR. 409). —

At one point, Baker inquired of Stephenson wheth-

er his source was making sales to others. When Steph- .

enson replied that he thought so, Baker suggested that:

if the source could sell to them ‘alone, the chances of

- discovery would be reduced (VI R. 399). On another |

occasion, Cornelsen, in Baker’s presence, suggested to

Stephenson that “[y]ou ought to have your boy cool it

or be careful” (VI R. 405). Petitioners and Steph-

enson would 1 remove all government markings and

Saree

- . labels from the items and their containers when

_ Stephenson delivered them, and would remove and

- burn the packing data and stock labels (VI R, 402- -

404). Cornelsen explained that by scraping the labels

off they would be able to save the barrels and con-—

_ tainers for future use, and anyone who might “pay

+ us a visit” would not “see what’s on them” (VI R.

406). An employee of Baker, observing petitioners

. painting over the government labels on expensive

, equipment that looked too new to be surplus, inquired —

_ whether the items were “hot” and was told that every-

thing was taken care of and not to worry about it

(VII R.. 606-608). Another individual who asked

Baker if an item of equipment which Baker offered

_ him for sale was “hot” (because he also had seen peti-

- tioners painting over the identification numbers) —

' was informed that it was “a little warm” (VI R. 320- _

324). Stephenson testified that, while he never actual-

- ly stated to petitioners that the items he was supply-

ing were stolen. property (VII R. 572), everybody

concerned assumed that they were stolen (VII R.

572-574, 584) because they came in the original gov-

ernment containers with government tags attached

(VII R. oe. } os |

ARGUMENT

‘La. The trial court instructed the jury that it had

to find that the items in question belonged to the

United States and that petitioners knew that they -

were stolen, but did not instruct that petitioners must |

. have known that they were stolen from the United

States (XI R. 1288). There was no objection to the

le al a il ; . i at eit at i als AT TI

trial court said (XI R. 1286) : :

Be 5

instruction. Indeed, petitioners’ counsel submitted a

proposed scienter instruction to the:trial court that

made no mention of the necessity of proving knowl-

edge that the stoleri property was government-owned

(I. R: 72). The alleged. error in the instruction was.

first urged in a petition for rehearing in the court of

appeals. The court of appeals understandably did not

discuss the point. Under the circumstances, the deci-

sion below does not, as petitioners contend, -necessari-

ly conflict with decisions holding that knowledge. that

the property belonged to the United States is an ele- ©

ment of a charge of conspiring to violate 18 U.S.C.

641. Moreover, the Ninth Circuit itself has indicated

that knowledge that property was stolen from the -

‘United States is an element of even a substantive of-

fense under 18 U.S.C. 641. Souza v.: United States,

304 F.2d 274 (C.A. 9).

Accordingly, the issue here is actually whethér the

trial court’s error in instructing on the scienter ele- -

ment was of. such dimension that this Court should

reverse the convictions despite the absence of objec-

tion at trial and the failure to raise the issue on appeal.

See Lawn v. United States, 355 U.S. 339, 362, n. 16.

There is, we submit, no occasion for: such action by

this Court. While petitioners defended on the claim

‘that they did not know the property was. stolen, this

issue was resolved against them on ample evidence. -

The government’s evidence showing that’ ‘petitioners —

knew the property was stolen—which. the jury cred-

ited—necessarily showed that petitioners knew the

property was stolen from the United States.

b.. Toward the conclusion of its instructions, the

ait " tated iw beaks haa os

RN cee gta a ae eit Sead i ae Be eee ae

.\*

There is nothing different in the way a jury is to

. consider proof in a criminal case from that in °

_ which all reasonable persons treat any question

depending upon evidence presented to them. You

are expected to use your good sense; consider the

evidence for only those purposes for which it has

- been admitted and give it:a reasonable and fair

construction in the light of your common knowl-

edge of the natural tendencies and inclinations of

- human beings.

This was followed immediately by the words: rf the

accused be guilty, beyond a reasonable doubt, say so.

If not, say so” (XI R. 1286). No objection was made

by petitioners’ counsel. If there were any possibility

of confusion to the jury, petitioners had a duty to

point it out to the court so that the court could have

instructed further and removed the confusion. It is,

however, clear that the court’s concluding instruction

did not conflict with or derogate in any nianner from

. the usual instruction on reasonable doubt which it had

‘previously given (XI R. 1264). Petitioners’ extrac-

’ tion of one sentence in the instructions out of context,

and characterization of that sentence as an “anti-rea-

sonable doubt instruction” (e. , Pet. 6), is thus un-

justifiable and misleading..

2. After Stephenson’s plea of guilty and petition-

ers’ pleas of not guilty, trial was set for May 11, ~

‘ . 1966, and Stephenson’s. sentencing was set for May

23 (I R. 6). Stephenson, upon pleading guilty, had

filed a motion for probation (VI R. 434). On May 11,

the trial was continued until May 24 because a key

government witness was not available (I R. 7). On

7

May 23, the sentencing of Stephenson was continued,

on his motion, until June 6 (I R. 150; VI R. 487).

Petitioners made no objection to Stephenson’s appear-

ance as a witness until their motion for a new trial

(XII R, 1806). They urged before trial, however,

that: the fact that he would not be sentenced until

after .he testified gave them the right to take his

' deposition (III R. 81). -Contrary to petitioners’

contention, there is no rule rendering an unsen-

tenced accomplice incompetent to testify, or requir-

ing the reversal of a conviction based upon his testi-

mony in the absence of proof of actual perjury (which

is not offered here). Lemons v. United States, 339

F.2d 761, 764 (C.A. 9), certiorari denied, 380 U.S.

985; see Cobb v. United States, pagding ‘on petition

for certiorari, No, 231, this Term. Nor was there any

reason to permit petitioners to. use the deposition

process with respect to Stephenson in advance of trial. ©

8. At the beginning of Stephenson’s testimony, the

prosecutor elicited his admission that he had pleaded

guilty (VI R. 384-385). Petitioners’ counsel objected,

. and at the start of cross-examination moved for a

mistrial, which was denied (VI -R. 420-422). The

trial court thereafter instructed the jury that it ©

could not consider Stephenson’s guilty plea as evi-.

dence against petitioners, but could consider it

only in respect to determining the witness’s ver-

acity (XI R. 1271-1272). In light of this cau-

tionary instruction, receipt of Stephenson’ s testi-

mony was not erroneous. Jiron v. United States, 306

F.2d 946, 947 (C.A. 10). In such a situation, there is

error only if the cautionary instruction is not. given

PO re

? es eee — Cone nS eee ee

8

(Babb v. United States, 218 F.2d 588, 541-542 (C.A.

5)), or if the jury is instructed that it can consider

the guilty plea as evidence against the defendant.

‘United States v. Toner, 173 F.2d 140, 142 (C.A.

8). This was not a case where the conviction, guilty

‘plea or confession of an accomplice was used as hear-

say evidence, thus precluding any opportunity for

cross-examination, as in.the cases-on which petitioners

rely (Pet. 17). Kirby v. United States, 174 U.S. 47,

58-54; Pickens v. Oliver, No. 1076, 1967 Term, de-

cided June 10, 1968; United States v. Hall, 178 F.2d

858, 854 (C.A. 2). Stephenson was available for and

was subjected to cross-examination by petitioners’

counsel. ? ogy

CONCLUSION

_ For the reasons stated, it is respectfully submitted _

that the petition for a writ of certiorari should be —

denied. - '

ERWIN N. GRISWOLD,

Solicitor General.

FRED M. VINSON, JR.,

Assistant Attorney General.

BEATRICE ROSENBERG,

MARSHALL TAMOR GOLDING,

Attorneys.

JULY 1968.

‘+.

b* 4 | G. S. GOVERNMENT PRINTING OFFICE; 1960 313611 35