Petition for Writ of Certiorari — Morgan v. United States

LIBRARY FILED

SUPREME COURT. wv. & NOV 14 1968

Supreme Court of the U itd Yak ag oom _| :

October Term, 1968.

No. 739

CLAUDE B. MORGAN,

‘ Petitioner,

versus —

UNITED STATES OF AMERICA,

Respondent,

Petition for Writ of Certiorari to the United States Court ‘

of Appeals for the Fifth Circuit.

JOE J. HARRELL,

Counsel for Petitioner,

Of HARRELL, CARO,

MIDDLEBROOKS & WILTSHIRE,

P. O. Box 387,.

Pensacola, Florida 32502.

INDEX.

FER IT ssc ev vesesccendvesesereses

CN nS 6 eS oh 5s 068s asda ceed cveses

QUESTIONS PRESENTED ..................

CONSTITUTIONAL PROVISION INVOLVED .

eT TET ECT eTT TEE

oe er er eee tee ee

CITATIONS.

Cases:

Stone v. United States, 113 F.2d 70 .......

Mattox v. United States, 146 U.S. 140 .....

Wheaton v. United States, 133 F.2d 522 ..

Constitutional Provision:

Sixth Amendment of the Constitution of

TS od cece eae Rea SOaes

SUPREME COURT OF THE UNITED STATES

October Term, 1968.

CLAUDE B. MORGAN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit.

The Petitioner prays that a writ of certiorari issue

to review the judgments of the United States Court of

Appeals for the Fifth Circuit entered in the above

case on August 23, 1968 and October 16, 1968.

OPINIONS BELOW.

The judgment of the District Court for the North.

ern District of Florida (F-318) is not reported. The

Opinions of the Court of Appeals for the Fifth Circuit

(R-430) are reported at 380 F.2d 915 and 399 F.2d 93.

Copies of the opinions are appended to this petition

in the Appendix at pages 13-24 anid 27-29.

JURISDICTION.

The judgment of the Court of Appeals for the Fifth

Circuit was made and entered on August 23, 1968

en

2

(R-442) and the order denying the Petition for Re-

hearing was raade and entered on October 16, 1968

(R-450), copies thereof are appended to the petition

in the Appendix at pages 28 and 29. The jurisdiction

of this court is invoked under F.C.A. Rules, Supreme

Court of the United States, 19(b) granting jurisdic-

tion when a court of appeals has so far departed from

the accepted and usual course of judicial proceedings

as to call for an exercise of this court’s power of ‘su-

pervision.

QUESTIONS PRESENTED.

The petitioner, Claude B. Morgan, moved for a new

trial in the trial Court on the ground that a conversa- |

tion between one of the jurors hearing his case and

a stranger deprived him of the right of a fair trial

by an impartial jury. The trial Court found that no

prejudicial conversation took place and the Court of

Appeals affirmed and refused to examine the facts

which led to this finding. The questions presented

are:

1. Whether the petitioner wa's deprived of his right

to a fair trial by an impartial jury as guaranteed by

the Sixth Amendment of the Constitution of the Unit-

ed States.

2. Whether the trial Court’s weighing of the facts

which led to a finding of “no juror misconduct” is

conclusive or whether the Court of Appeals owes. a

duty to examine these facts.

3

CONSTITUTIONAL PROVISION INVOLVED.

The constitutional provision involved is the Sixth

Amendment of the United States Constitution which

reads as follows:

Rights of the Accused.—In all criminal pros-

ecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of

the State and district wherein the crime shall

have been committed, which district shall have

been previously ascertained by law and to be

informed of the nature and cause of the accusa-

tion; to be confronted with the witnesses against

him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance

of Counsel for his defense.

STATEMENT.

The petitioner Claude B. Morgan pursuant to an in-

dictment filed April 21, 1965, charging violations of

18 U.S.C. 1341, Mail Fraud, was tried in the United

States District Court for the Northern District of

Florida on November 3rd and 4th, 1965, and a jury

found the defendant guilty on seven counts set forth

in the indictment (R-312).

A motion for new trial was filed on November Sth,

1965, containing four grounds, one of which was that

the defendant was substantially prejudiced and de-

prived of a fair trial by reason of improper conduct

4) erick te satel

4

of a juror as set forth in the affidavit of Robert W.

Bryant which was attached to said motion and made

a part thereof (‘R-213, 314).

A hearing on the motion for new trial was held

by the trial judge. Bryant, the affiant, testified as to

the events related in his affidavit. He testified that

during the noon recess of the last day of the Morgan

trial, (November 4) and before the jury had retired

to deliberate, he overheard a conversation in the

lobby outside the courtroom between one of the jurors

in the Morgan case and another member of the jury

panel who was not sitting in the Morgan case, but who

was serving as a juror in another case being

tried the same day. Bryant testified that he heard the

non-Morgan juror tell the Morgan juror that ‘“‘the

Spanish fellow’’ on the Morgan jury had also ‘been a

juror in a civil case previously brought by Morgan

against an insurance company in which Morgan had

recovered $100,000. According to Bryant, the non-

Morgan juror further stated, ‘““You know there must

be thousands like himself defrauding the people to-

day” and the Morgan juror then stated he wouldn’t

be defrauding anybody else. The conversation then

allegedly ended.

After the hearing the trial Court announced that

the motion would be denied (R-418). The Petitioner

was sentenced on each of the seven counts to five

years imprisonment to run concurrently with a fine

of $1000.00 on each count or a total of $7000.00 (R-319)..

Notice of appeal to the United States Court of

5

Appeals for the Fifth Circuit was filed on No-

vember 17, 1965 (R-317) and thereafter on Novem-

ber 20, 1965, the trial judge entered findings of fact

and conclusions of law (R-315) stating that “there

was no such conversation,” and therefore it was

unnecessary for the Court to determine as a matter

of law the sufficiency of the allegations of the witness

Bryant to support the defendant’s motion for a new

trial.

Thereafter the Petitioner and Respondent filed

briefs with the Appellate Court directed to the ques-

tion of whether or not the District Court abused its

discretion in refusing to grant a new trial. Oral argu-

ment was heard on October 27, 1966, and the ap-

pellate Court’s opinion was rendered on July 21,

1967, reported at 380 F.2d 915 and appended hereto

at pages 27-29.

The United States Court of Appeals for the Fifth

Circuit held the District Court’s finding ‘that there

was no such conversation” to be ambiguous and va-

cated the denial of the motion for new trial and re-

manded this case to the trial Judge with directions

for additional findings of fact.

On August 22, 1967, the trial Judge filed Supple-

mental Findings of Fact and Conclusions of Law

which held that, “There was no such prejudicial con-

versation” (R-419).

‘

ie Sees ate Se

6

The petitioner and respondent then filed briefs di-

rected to the question of whether or not the trial Court

found conversation was prejudicial to the petitioner’s

right to a fair trial. After oral argument on this point

the United States Court of Appeals for the Fifth Cir-

cuit affirmed the petitioner’s conviction in its opin-

ion issued August 23, 1968 (R-430), appended hereto

at pages 13-24. The Petition for Rehearing was de-

nied on October 16, 1968 (R-450).

REASONS FOR GRANTING THE WRIT.

The decision below should be reviewed because

the United States Court of Appeals for the Fifth Cir-

cuit has so far sanctioned a departure from the ac-

cepted and usual course of judicial proceedings as to

call for an exercise of this Court’s power of super-

vision. The decision of the trial Court and the af-

firmation of that decision by the Court of Appeals de-

prived the petitioner of his constitutional right of a

fair trial.

1. The affidavit of Robert W. Bryant stated that

prior to the verdict a juror hearing the petitioner’s

case was informed by a stranger that there must be

thousands of people like the petitioner defrauding the

people today. The affiant further stated that the juror

replied that the petitioner would not be defrauding

anybody else. Considering the fact that the Petitioner

was being tried for fraud, nothing could be more prej-

udicial to his right of fair trial than this conversa-

tion. The hearing to determine the veracity of this

7

affidavit established that a conversation of some type

had taken place between one of petitioner’s jurors

and a stranger; the identity of the stranger was cs-

tablished; the place of the conversation was estab-

lished; the affiant’s statement that the conversation

took place prior to the retiring of the jury was cor-

roborated by the stranger, Frank E. Blews; the iden-

tity of “the Spanish fellow’ was established as

was the fact that he served on the petitioner’s jury

and had also served as juror on a civil case three

years earlier wherein the petitioner sued an insurance

company for a fire loss to his property which the in-

surance company refused to pay alleging fraud on the

part of the petitioner.

Notwithstanding the foregoing the trial judge ruled,

at the conclusion of this hearing, that no prejudicial

conversation took place.

In the case of Stone v. United States, 113 F.2d 70,

the Court said:

There is no right more sacred than the right to

a fair trial. There is no wrong more grievous

than its negation. The Courts have exercised

some discretionary power in dealing with the con-

duct of juries while not in improper communica-

tion with other persons and have not always dis-

turbed verdicts for misconduct which were the re-

sult of the uninfluenced action of jurors alone,

(Klose v. United States, 8 Cir., 49 F.2d 177) but

when jurors have communications with strangers,

Sere antes ne BE ATT cal Saw SDL LD rpm db gti Tehly LAN Sa

Fins: Stink

the case is different and cannot be dealt with so

easily.

Any course is clearly illegal which would ex-

pose them to the danger of influence outside the

court. If a single juror is improperly influenced,

the verdict is as unfair a's if all were. * * * * *

The improper communication with the juror

in the present case raises the presumption that

the rights of appellants were prejudiced and

there is no showing on the part of appellee that

no injury could have occurred by reason of the

irregularity. Mattox v. United States, 146 U.S. 140,

151, 13 S. Ct. 50, 36 L.Ed. 917.

In the case of Mattox v. United States, 146 U.S. 140,

17 S.Ct. 50, 36 L.Ed. 917, this Court laid down the ap-

plicable rule as follows:

Private communications, possibly prejudicial

‘between jurors and third persons, or witnesses,

or the officer in charge, are absolutely forbidden,

and invalidate the verdict, at least unless their

harmlessness is made to appear.

The rule was further stated in Wheaton v. United

States, 133 F.2d 522, as follows:

The law is that communications, relative to

a case on trial, between jurors and third persons,

or witnesses, or the officer in charge of the jury,

are absolutely forbidden, and, if it appears that

“such communications have taken place, a pre-

9

sumption arises that they were prejudicial, but

this presumption may be rebutted by evidence

showing the communications to have been harm-

less.

If the evidence taken at the hearing is considered

in the. light of the foregoing rules, it should not be

said that the presumption that such a conversation

between the juror, Leo A. Duncan with the stranger,

Frank E. Blews as heard by the affiant was harm-

less or that sufficient rebuttal evidence was produced

to overcome this presumption.

Prior to the rendition of the verdict any conversa-

tion between a juror and another person concerning

a defendant being prosecuted for fraud who had pre-

viously ‘sued an insurance company for $100,000 is

prejudicial. The Court itself found that the Morgan

juror Duncan and the stranger Blews discussed the

fact that Blews had served as a juror in an earlier

case in which Morgan was the plaintiff. If Bryani’s

testimony, which was corrcvorated as to the time,

place, subject matter and individuals involved in the

conversation, is believed there could hardly be a

more prejudicial conversation.

2. In its opinion affirming the conviction the Court

of Appeals discussed the procedural steps taken by

dhe trial judge at the above discussed hearing and

stated, ‘‘What is prejudicial to a fair trial when the

issue of ‘juror misconduct’ is raised, is a matter that

oF Tee RR

Atha: we

RARDIN YASS PB Mao sab e R

sas Se Xeid

10

must, to a large extent, be left to the discretion of the

trial court . . . .” (R-430) (emphasis supplied).

However, the conclusion of the trial judge wa's not ex-

amined to any extent whatsoever, as is noted by the

appellate court’s statement that, ‘‘Even if we were

to question, which we do not, the tzial court’s weigh-

ing of the facts . . .’”? (emphasis supplied). That the

appellate court considered the trial judge’s findings

of fact to be conclusive is further illustrated by the

final paragraph of its opinion which appears to stand

for the proposition that since the trial judge responsi-

bly went through the proper mechanical procedures

the conclusion reached by him inevitably is not

‘clearly erroneous” (emphasis supplied).

The petitioner contends that the court of appeals

had the duty to examine the facts leading to-the triai

judge’s finding of “no prejudicial conversation’? and

that the trial judge’s findings are not conclusive but

are discretionary only to some extent, however great.

11

CONCLUSION.

For the reasons set forth above, it is respectfully

submitted that this petition for a writ of certiorari

should be granted. -

oeerewe ee ee eeeeeeeeeeeeeee

MIDDLEBROOKS & WILTSHIRE,

Attorney for Petitioner,

P. O. Box 387,

‘ 201 E. Government Street,

Pensacola, Florida 32502.

PE ie PET an age caer ei a i

a a eae

ADIL POD ah Aan Siew a 10s hehe ORO MEE ALAS Cie 4

12

PROOF OF SERVICE.

I, Joe J. Harrell, Attorney of record for Claude B.

Morgan, petitioner herein, and a member of the Bar

of the Supreme Court of the United States, depose

and said that on the ... day of November, 1968, I

served a copy of the foregoing Petition for Writ of

Certicrari on the Solicitor General, Department of

Justice, Washington, D.C. 20530 and on Clinton Ash-

more, United States Attorney, and Stewart J. Car-

routh, Assistant United States Attorney, Federal

Building, Tallahassee by depositing the same in a

United States Post Office, with Air Mail postage pre-

‘paid.

JOE J. HARRELL,

Of HARRELL, CARO,

MIDDLEBROOKS & WILTSHIRE,

Attorney for Petitioner,

P. O. Box 387,

201 E. Government Street,

Pensacola, Florida.