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

Iu the Supreme Court of the United States

OCTOBER TERM, 1968

No. 739

CLAUDE B. MORGAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT .-

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Tried by a jury in the United States District Court

for the Northern District of Florida, petitioner was

convicted on seven counts of mail fraud and was sen-

tenced to imprisonment for five years and fines tota’-

ling $7,000. |

The-only issue raised before the court of appeals

and in the petition for a writ of certiorari relates to

the denial of petitioner’s motion for a new trial based

on an alleged conversation during the trial between

one of the jurors in his case and a stranger. Because

the court of appeals was not clear about the district

(1)

2

court’s ground for denying the motion, the case was

first remanded for further findings. See 380 F, 2d 915

(Pet. App. 27-29). On the basis of those supplement-

ed findings and its own review of the record, the court

of apneals th¥n affirmed. 399 F. 2d 93 (Pet. App. 13-

24). No further review is warranted.

The underlying circumstances fully appear from the

two opinions of the court of appeals and from the

elaborate findings by the district court (set out in the

opinion below at Pet. App. 16-20). On the basis of

petitioner’s motion, the district court held a full hear-

ing at which counsel were free to introduce evidence

and each juror was separately examined by the court,

with counsel given the opportunity to cross-examine.

The district court observed the various witnesses, and

rejected the disputed testimony of petitioner’s princi-

pal witness—his close friend—that one of the mem-

bers of the jury had, before verdict, announced in a

conversation with an outsider that he had formed the

conclusion that petitioner was guilty. Rather, the

court found on the basis of the testimony that the

only conversation involving one of the jurors in this

case—which might in any event have taken place after

verdict (Pet. App. 19-20)—did not bear upon the is-

sue of petitioner’s guilt or innocence (Pet. App. 18).

The court of appeals noted that the record demon-

strated that “the trial judge was keenly aware of his

responsibility” and “used every possible means to fer-

ret out the truth” (Pet. App. 22). The court was

convinced that none of the trial judge’s findings on

the diametrically opposed factual contentions could be

considered “clearly erroneous” (Pet. App. 23 n. 2, 24).

wo STE RE ye Renae & OT A RO TENN Py Sopra ee epee pp one. rer

3

The court thus unanimously concluded: “Summoning

as we must our most perceptive antennae to detect

prejudicial communications with a juror, we neverthe-

less affirm the trial court’s findings that the jury was

not compromised” (Fet. App. 18).

We rely on the findings and opinions of both courts

below in urging that the petition for a-writ of cer-

tiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

DECEMBER 1968

W ou. S. GOVERNMENY PRINTING OFFICE; 1968 327222 352