Opposition Brief — Bishop v. United States

Gu the Supreme Gowrt of the United States

OCTOBER TERM, 1969

No. 1164

ELDRIDGE PETE BISHOP, PETITIONER

fe v,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of popes ( Pet. sf ie

C.A. R. 5)" is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on December 2, 1969 (C.A.R. 6). A petition for rehear-

ing was denied on January 6, 1970 (C.A.R. 7, 8). The

petition for a writ of certiorari, filed on February 9,

1970, is out of time under Rule 22-(2) of the Rules of

this Court.

1“©.A.R.” refers to the record in the court of appeals; “R” refers

to the transcript of proceedings in district court.

(1)

378-829—70

. ‘

bi AOS ot SRN

2

QUESTIONS PRESENTED

1. Whether petitioner was entitled to dismissal of

the indictment on the ground that the Rae jury pro-

wgereec had not been recorded.

2. Whether the trial court improperly limited ‘cross:

examination of a government witness and defense coun-

sel’s closing argument relating thereto.

3. Whether the evidence was sufficient to support

petitioner’s conviction.

STATEMENT

After a jury trial in the United States District Court

for the Northern District of Oklahoma petitioner was

convicted on all three counts of an indictment charging

counterfeiting offenses (II R 378). Count 1 charged

petitioner and defendant Nipp with aiding and abetting

one Hill in the possession of and in an attempt to sell

$100,000 in counterfeit $100 Federal Reserve Notes (18

U.S.C. 472); Count 2 charged them with delivering

those notes (18 U.S.C. 473) ; and Count 3 charged peti-

tioner, Nipp and one Gravitt (naming Hill and others

as co-conspirators) w ith a conspiracy to pass, sell, and

conceal counterfeit notes (II R 345-348).? On May 21,

1968, petitioner was sentenced to imprisonment for 15

years on Count 1, 10 years on Count 2 to run concur-

rently with Count 1, and 5 years on Count 3 to run con-

secutively to Counts 1 and 2 (II R 388). On appeal the

conviction was affirmed (C.A.R. 6).

The evidence adduced at the trial showed that in

late December 1966, Hill went to Chicago and met

*The jury found defendant Gravitt guilty on Count 3 and

defendant Ni ipp guilty on Counts 1, 2 and 3 (II R 376, 377).

3

with Lawrence and Spears, who were interested in’

purchasing counterfeit $100 notes (I R 13). About '

January 4, 1967, Hill was introduced to Nipp at

Gravitt’s home in Oklahoma, as a person who could

‘handle’ counterfeit money (I R 17-18). Hill paid

Nipp $300 for ten $100 counterfeit notes and said

he could sell $220,000 (I R 18-19). Hill and Berry _

took the ten notes to Chicago and displayed them to

Spears and Lawrence, who promised to buy $220,000

in counterfeit notes for $17,500. They arranged to

consummate the transaction with Hill at Clarksville,

Tennessee (I R 20, 104-107, 138-140).

About January 11, 1967, Hill and Berry met Gra-

vitt, Nipp and petitioner at the Dél Rio Motel in.

Tulsa (I R 22). Both Hill and Berry testified that

petitioner was sitting in a car there (I R 22-28, 54,

141-142, 279). Hill drove with petitioner and Nipp to

Hill’s home at Sapulpa, Okiahoma (I R 23). There,

Hill telephoned Lawrence to inform him that the

group was coming to Clarksville’ (I R 24),

Petitioner was the pilot on a flight from Tulsa’

destined for Clarksville, with Hill and Nipp as pas-

sengers, but he ran out of gasoline and landed at

Cairo, Illinois, (I R 25-27). Petitioner rented a car

and drove with Nipp and Hill from the Cairo Air-

port to the Holiday Inn at Clarksville (I R 28-29,

156-160). There petitioner, Nipp and Hill counted

out $220,000 in counterfeit bills and divided it into

packages of $5,000 each: Hill took £50,000 of the

counterfeit to Spears’ room, but Spears said he could

not take the money until the following morning (I R

31-32). Lawrence testified that both petitioner and

Ses |

4

Nipp asked “what’s hhoiding up the deal’’ and said

“they wouldn’t wait “much longer’? (I R 110-111).

The delivery arrangements fell through wRen Spears .

checked out of the motel (I R’ 33-34).

On January 18, 1967, Spears called Doster, a special

agent of the United States Secret Service at Nash-

ville, Tennessee, and told him that he was being forced

to buy $100,000 n counterfeit notes (I R 163, 165). On

January 23 Doster came to the Tulsa International

Airport with Spears (I-R 164). On January 24, ter

Spears had called him, Hill said he would meet

Spears at the Tulsa airport with the money (I R 36).

In the meantime Hill met petitioner and Nipp in a

ear at the Ramada Inn in Tulsa. Either petitioner or

Nipp handed Hill a shaving kit containing $100,000

in counterfeit notes (I R 36-38). In accordance with an

agreement, Hill drove to the airport in his car, and

i petitioner and Nipp followed in another. Both ears

were parked in the airport parking lot (I R 38-39)...

When Hill met Spears and Doster at about 12:20

p-m., Hill asked them to go to his ear to get the

money. Instead they requested that Hill drive his

car to the luggage room (I R 39, 166). When Hill

walked over and told petitioner and Nipp about this

they asked, “Well, you want us to go with you?” and

Hill replied, ‘“‘No, I'll go by myself” (I R 39).. Hill

~ drove his car to the luggage room and was arrested

when agents found the counterfeit money in the shay-

ing kit (I R 39, 166-168, 179-183). At the time of.

Hill’s arrest, petitioner and Nipp were sitting in their

car in the parking lot. The agents did not arrest them

(I R 40, 84).

-

Vn CVPR Rance yy le RO DAD

5

Testifying on his own behalf, petitioner denied go-

ing to the Ramada Motel or to the Tulsa International

Airport at any time on January 24, 1967 (I R 221).

Petitioner produced several alibi witnesses (I R 201-

202, 238-239, 247-248). . “ 3

ARGUMENT

As noted, the petition is out of time. In any event it

‘raises no issue requiring review by this Court.

1. The minutes of the grand jury which returned

the instant indictment were not recorded, but peti-

tioner is not entitled to have the indictment against

him dismissed on that ground. Fed. R. Crim. P. 6(d)

and 16(a) permit, but do not require, the recording

of grand jury testimony. The Notes of the Advisory

Comm*ettee with respect to Rule 16(a) state that dis-

closure is required “only where the statement has

been recorded and hence can be transcribed.” See

Pinelli v. United States, 403 F. 2d 998, 1002 (C.A.

10), certiorari denied, 395 U.S. 968; McCaffrey v.

United States, 372 F. 2d 482, 484 (C.A. 10), certiorari

denied, 387 U.S. 945; United States v. Cianchetti, 315

F. 2d 584, 591 (C.A. 2).

N othing in the record supports petitioner’s charge

that the government attorney deliberately refrained

from having the grand jury proceedings recorded in

~ order to defeat petitioner’s motion for production of

the grand jury testimony (Pet. 4). The government

made no attempt to withhold information from peti-

tioner. It produced the minutes of the grand jury

which returned the indictment-for the separate case

6

against Hill (I R 101) and also Hill’s statement to

the government agent (I R 42-43),

2. Petitioner was not improperly limited in his

cross-examination of government witness Hill, and

in his closing argument relating to this matter (Pet.

6-12). The testimony involved is fully set out in the

opinion of the court below “(Pet. 22-25) and appears

at I R 44-47, 91-92, 320. As the opinion below points

out, counsel was free to explore the possibility that

Hill thought he could gain some advantage for him-

self by testifying. The court intervened only when the

questioning turned a suggestion which the court

knew to be incorrect—that the judge in fact had been

so motivated in reducing/the sentence. The judge

could properly ¥eybid this suggestion of impropriety

and inform the jury that he had reduced Hill’s sen-

tence on his own motion and without consultations. .

Hill’s sentence had heen reduced before (not after)

his testimony in the instant ease was given,

Neither was there imprpper limitation in the scope

of the closing argument bf petitioner’s counsel. The

court prohibited counsel only from stating that: Hill’s

reducti®m in sentence had heen given as the result of

a trade. Counsel was in no way precluded from re-

ferring to Hill’s interest in the outcome of the ease,

the fact that he had already been sentenced, that-his

sentence had heen reduced, and that he was then in

prison. »

3. Petitioner attacks the sufficiency of the evidence,

alleging that his conviction rests on Hill’s uneor-

roborated testimony. But Berry corroborated Hill’s

testimony by stating that he saw petitioner sitting in

Seen a ee oe

a car at the Del Rio Motel (I R 141-142, 279); Law-

rence did so by testifying that while the parties were

waiting for Spears to take delivery of the counter-

feit notes on January 14 at the Holiday Inn at Clarks-

ville, petitioner and N ipp asked what was holding the ,

deal up and said that they would not wait.much longer

_ (I BR 110-111); and a Cairo ear rental agent ‘testified

that petitioner rented the .car which was driven to

Clarksville (I R 156-160). And see Caminetti vy.

United States, 242 U.S. 470, 495.

CONCLUSION

For the reasons stated, it is respectfully submitted

‘ that the petition for a writ df certiorari should be

denied. |

Erwin N. GRISWOLD,

Solicitor General.

WiLL Wison,

Assistant Attorney General.

= BeEaTrRICE RosENBERG,

Rosert G, Maysack,

Attorneys.

Marcu 1970.

* Stephenson v. United States, 211 F. 2d 702 (C.A. 9), upon

which petitioner relies, is predicated upon special circumstances

arising from the interpretation of an Alaska statute entitling an

accused to a cautionary instruction as to an accomplice’s testimony.

© 5 GOVERNMENT PRinting OFFICE tere