# Petition for Writ of Certiorari — Zemler v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1668%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 820 ## Text It 7a ‘a -REME COURT, U. | 2 . i > - BMp G& tf : a de a * Supreme Cour of theLUnited States , : ase oe — October Term/ ei 19 70 Pd : ‘ae ‘ He § ; ca rae LOUASZEMLER, Petitioner. ws UNITED STATES OF AME RICA, Re sponde nty "PETITION FOR A WRIT OF CERTIORARI TOTHE. i UNITED STATES COURT OF APPEALS _ FOR THE NINTH CIRCUIT | STANLY Ww. GRE NFIELD, Counsel for Pe titioner; A Carita Tose,” , Pitts pure Pennsyly: ania 1219. ad bal ix * 4 5 ° : . BATAVIA TIMES, APPELLATE COURT PRINTERS, esi . EDWARD W. SHANNON, REPRESENTATIVE $022 CARLYN DRIVE, PITTSBURGH. PA.. 15236 . 412-881-7463 “~) ~~ e : + y. = ; INDEX ‘ — nN ND a Prumicn are oe 1. Jurisdiction, ..... Sy eee ie ey Meet TY Questions. Presented ...... 0. or asda din eis 2 Statutes, Federal Rules and Regulations Involved .... 8 “Statement 0. ees DRL MAE LEN ON, Sa * Reasons ¢or Grantifig the. Writ eee ee pecs: process ri i Conclusion ......... ARR pi ahes a ae eens ate | Appendix: ° Ne ei at, pt tarudesess, aNd ee Order ......;. poe esis ies A RROREGEY ian ee” a Shane aie TATIONS. ul Cases: a | ‘ ‘®D :< an oe Benton v. Maryland, 395 U: S784 (1969) .......... 25°... “Gilbert v. California, 388 U. S. 263 (1967) 22.000... aie eet Newlin: v. U. S., 328 Fed. 2d 262-(10th Cir. 1964) . 6° Simmons v. U. S., 399 U. 8. 377 (1968) 2.05.2... ee. 3 6 Stoval y. Denno, 388 U.-S. 294 (1967) ............08. 3, 6 * U.S. v. Carter, 401 F. 2d 748 af 751 (3rd Cir. 1968)-. 6 & i —-U. S. v. Dicedact, 171 Fed. 2d 753 at 756 (7th Cit. Fes Oe. Mee Oe Pry Serer tees corer TEC : . Wade’v. U.S., 388° U. S. 218 (1967), canoe See ee 3,6 7 “Sratutks: . oe os rae _ we / : 18 U. 8, C. 2 2314 cn Pee se eeewerepetteesceeees /2,8 ky AS U.S. ¢. 659 coves ce ee re Se ee ce ey a “3 er J ‘ ~ a ‘ ie \ e ~- or reported. The opinion of the Court .of Appeals for — the Ninth Circuit is yet unreported but attached herewith. » The Order of Court denying rehearing is as-yet unreported — was denied, 7 e, : ‘3 % “ &\ : ° . oe a v3 PETITION FOR A WRIT OF CERTIORARI TO THE '_ UNITED STATES COURT OF APPEALS . FOR THE NINTH CIRCUIT s The Petitioner prays that a writ of certiorari issue to re- _ _ View the judginents of the United States Court of ‘Appeals. for the Ninth Cireuit entered in the above ease on March 19, 1970, and on April 23,1970, when Petition for rehearing Opinions Below . No opinion of the District Conrt for Nevada was written -* and also attached herewith, | | Y IN. vin : si : \,, si | 2 - - Supreme Court of the United States — . ' ’ ~* October Term, 1969 es ee ; : No ae é LOUIS ZEMLER, ae Petitioner, | : Ve : ee UNITED STATES OF AMERICA, a — oe. ’ ae | Respondent, ‘4 : $ ‘ : : §).. ‘ i : : 4 #. z r é. , - ie ee oy Jurisdiction ed Ge ee * The judgments of ‘the Court of Appeals for the Ninth Cirenit were mnie and entergd on March ‘i J, 1970, and on. 9 ) «April 23,1970, ‘and copies tiene ‘are appended’ td this petition in the Appendix at. ‘pp.- 8: The Jurisdiction - Of this. & ourt is. invoked under 28 U.. € ae, ‘ . aoe . . o ao) ~ Questions Presented -— a . 1.) W hether the Con iairrent Sentence’ Thile should still be an appropr late rule of judicial: conyenience, cand if se, _ Whether in‘the Tight’ of Benton v. Maryland, 359 U. 8.784, S89 S..Ct. 2056 (1969) it Should he applied, where because of the ‘Ninth Circuit’ Ss refusdl ‘to consider his cai on the | meritss thus affirming his conviction, P etitioner, ae Jife- time. parolee from Ponnsylve ania, faces) the fiance and substantial prospect of ree omitmient to jail for life-as a’ ‘e parole violator. “3 ae a | 4 a 2 Whe ther the Ninth C ireuit properly. “ipplied the ( ‘on- current: Sentence Rule at all, where Petitfoner did in fact ' appeal from conviction of; “each of the three couintg.of his® > ; indictment. a eg . ‘a » _ Wise appropriate as a rule af judicial convenicrice, should. ‘be applied SO as to permit the trial court to depart from » proper jucheial proceedings. andl: Q . nf ‘9 2 9 tioner for transportation’ of stolen, securities from ‘Las V egas. to NewYork in violation of 18 U. S.C: 2314 when: > ¢the.ey ide nce is irrefutable that the securities were known _ by-v ictinys in Las Vegas to be stolen, and who nevertheless _ transmitted. asi securities to, New y ork for payment. . ? ; - ; : ” ,# @ ; ’ on a a. Admit’ testimony to sustain. a conviction, of Peti- a o m4 W hether the Gneurterit Sentence Rule, even if ather- & ¢ ar’ > + (1967); i of $5,000 4 in Violation of IS U.S.C. 2314: . e : - a, & bi. _ Admit into evidence an 1 illegal pre- rial confronta- : fe tion of de ‘fendant i in contray: ‘ention of this Court's ‘holding i in Stovall v. De uno, 388 U. S. 294 (1967) ; Wade i v: U. S., 388 US. 8 (1967 ); =< filbert , California, 388 U, 8? 263 “Allow the introduction of identification. by wit.) Tiesses, who had been Negally shown photographs of. the defendant after his arrest’in contrave ‘ntion of the principles ro. essed in Stovall nr » NNO; 388: U.S. 294 (1967) : Gilbert | % » California, 388 °T. Sy" 263 (1967); and Wade-v: U. 8.,. hs U.S. 268 (1967) and also in Simmons vy. U: Sy 399. ALAS 377. (1968), si * aan BOs . : pte 4 ? ‘ Statutes, Féderal Rules and Regulations Invaved . ISU. C. <1 Ses \ eS aw scene 659." pe ok. Pot Vale a oe a ect ~ Statement This Potition is “before this. Court from the foe: of: the Ninth. Cire wit to decide the issues raised i in. Petitioner's - ; a apped from his. conviction in ‘the United States District f Court in Las, Vegas, , Petitioner Was, indicted ‘on April 16 , « 3 1968; ina three-count indictment. as follows: as Chit For trmisporting anid causing to be transported in Titorejets Commerce from New York: to Las Vegas certain American, Express Travelers Checks of a value in excess , 2. For’ falsely makhig and” forging - ‘twenty of testi American E xpress Travelers A ‘hee ks" in, violation of U.S «©. 24s Re gike i> eos . Se FOP: having. in his Possessigin “400 American’ Ex-: “press Travelers Chocks which’ had heen stolen “from, a.-. | . foreign shipment of bbs acs in: violation:of 18 U ek Re) . See % Testimony at trial indicated that on September 29, 1967, | travelers cheeks later identified as having been stolen in New York were being circulated in the. Las Vegas area. ‘Because of amalert’ from Central Cleariig, personnel at the Las Vegas Chub, ¢ Carosel Club, Freemont, Mint Casino and - Horseshoe Club were able to confirm. that. some of the American Express ‘Fravelers, Checks were ‘cashed with © them by a man using. the name of Harry Katz Thehina Akin, a cashier at the Las Vegas Club, alerted Las Vegas police’ when ‘an individual ipproached her to cash five American Express Travelers Checks, the:serial numbers 6f which corresponded to the reported’ stolen New York cheeks. Las Vegas police arrived in time .to arrest. Peti-_ fioner, manacle and, return him to the lobby of the Las Vegas Club, confront him with Mrs. Akin and her superior, and then remove him to jail. A search of tltis, person indicated he had a motel key, identifieation in- the name of Harry Katy, some empty dr ‘avelers check books. and $700, age p< - “As a result. of Petitioner’ s confrontation with: Akin, Las Vegas police secured a ‘search ' Warrant, searched Room No. 12 of the Nomad Motel for whieli Petitioner had-avkey and recovered $8,100 in blank travelers cheeks whith con- stituted the evidence ‘for Petitioner’ s conviction on Count ITT. rae Petitioner was eventually convicted on all three counts on Angust 27, 1968, after a jury trial hefore the Tlonorable Brier ROOT bompson. On November ly 1968. .Indge Thompson committed defendant to the custody of the At- torney General for imprisonment for seven years as to Uonnt I, and to coneurrent. seven- year sentences with Count J. as to Connt TT and TT: Notice of Appeal from this conviction and sentence as to all edunts was filed No- vember 4, 1968,” rv 5 ase ve, On appeal, the Ninth Cirenit concluded that Petitioner had only appealed from Counts 1 and TL, and not Count IL, of flis, three-count conviction, and that since -he was — sentenced to & seven-Vear term on Count TH, it was un- ; necessary to decide the merits of his appeal as to Coufts ] and Ll, thus invoking the Concurrent Sentence Rule. ; Reasons for Granting the Writ’ — - ~ The iii below ‘stiould he reviewed heea {Ise italia: tion of the Concurrent Sentence Rule by the Ninth Cireuit and its consequent refusal to consider’ the substantial issues raised by Petitione ‘ron appeal would result i in actual, immediate and- devastating: harny to-him. At the same time, it raises once again for determination the effies acy antd Vitality.of the Concurrent Sentence pe, ee in confliet With a defendant's « constitutional -rights?, Petitioner is on a‘ lifetime parole in the Commonwealth of Pennsylvania: Conviction in the instant ease. would constitute a. violation of that parele and at once subject = Petitioner to reconmitnent to jail for life as a. parole Violator. At least under these cirenmstances, therefore, the C oncurrent Sentence Rie sliould have no validity and as expressed in. Benton, supra, at 792, there shold je “no good reason” to apply it here, : ies . Moreover, the Ninth Cjrenit inappropr iately invoked the Concurrent Seritence: Rule altogether. Tt assumed as set forth in its opinion that no appeal had in’ fact heen taken -_ VIn Benton @. Varylaad, 395 U.S. at 792. g9 S. Ct. at 2056, this Court found it unnecess: iy at that time to resolve once and forall the. covtention that Federal \npels ite Courts should treat. all- errors which may possibly affect a defendant's ‘rights and that. ilterefore. the Coneurrent S« ntence Rule should have no continuing \alidity, even as a rnle of convenience. In any event, this Court specifically held there 359 UL S. at: ‘73, 89'S. Ct. at 2061 “It is sufficient for present purposes t6 hold that. there is no judicial bar to . ‘consideration . of challenges to multiple convictions, even’ though concurrent sentences were imposed.” : “ss « from_Count HT ofthe indictment_and conviction, _Iow- ever, Notice of Appeal dated November 4, 1968, spec ifie aHy ‘included Count IL in the appeal. F urthermoré, Peti- tioner’s, oral argument and Brief in-the ( Cireuit, Page 7, : pomtedly contended that the.Search Warrant secured to ‘recover The money orders, which supported Petitioner's conviction under Count 111, was obtained on the strength of an Affidavit avhich contained the observations of Wit- . ness, Akin before whom. the Petitioner had been illegally presented without counsel in violation of this Court's hold- ings in Wade vr. U,S., 388 U.S. 263 (1967): Storal v. Denno, 338, U.S. 294 (1967): and Gilbert rv. California, 388 U. 8.3 2633 ( 1960). Indeed, as was argued to the Cirenit, the entire indict- ment, including’ Cont THE, was underpinned not only by ~Akin’s testimony “of her illegal al confrontation of Petitioner, but by her testimony that she saw a display of photographs including. one of the Petitioner after his arrest on Sep- tember 29, 1967 (T. 62) and that W itness. Latham had - seen a similar display (T. 117), all we contend in violation of themandate of Wade, Ommert and Storal, supra, and Simmons r, USS8., 399 &. S, 377 (1968). Application of the Concurrent Sentence: Rule permitted Pétitioner’s conviction for transportation .of stolen Securities from Las Vegas to New York ear nar ‘enably was impermissible under the holdings ‘in a .. Carter, 401 F. 2d 748 at 751 (3rd Cir, 1968); VU. s. , per an 171, F. 2d 753 at 756 (7th Cir. 1948); gi Newlin v0. S., 328 F.72d 262 (10th Cir. 1964), | As the record demonsttates (T. 130), testimony by each ‘of two witnesses unequivocally established that each was aware that the checks in their possession. and intr@glueed ‘Against Petitioner at his trial to support his convietion . ° | ; 7 ” under Chie Il were known: ‘to have om stolen before dey -* were negotiated for payment back to New York. These checks could thus not possibly be the basis for a charge that Petitioner caused them to he transported from Las Vegas to New York, since each Vietiny, Was thus an intervening - force to that transportation. : Conclusion For the reasons ‘set forth above, it.is respectfully sub- mitted that this Petition for W rit of Certiorari should be - ‘granted. STANLE Y W. *GREENFIEL D, _ Attorney for Petitioner. % f 8 a . Opinion UNITE D } STATES C OURT OF. APPE ALS. For THE Ninti CIrRcvuIT _ LOUISZEMLER,§ ree: a ‘ Appellant, UNITE Ds STATES OF AMERICA, : Appellee. | Mare h 19, 170 r Appeal from the United States Distriet Court LP ISNT For the District of Nevada 3efore: Barnes, liv PSTEDLER and Wricut, C ‘irenit Judge s. Per Curiam;. Appellant w Was convicted_on thitee counts of transporting, ° forging and possessing Ameri ican lixpress Travelers Cheeks. | which had been either stolen, or forged, or stolen from foreign freight. 18 U.S. C. $9 659 & 2314. Sentence was seven years on each count, to be served concurrently. Appellant has not ‘appealed from his conviction on Count “IT. We are: therefore not required to decide. the issues raised as to Counts | & TH, and we eonelude we will not do so. Sinclair v. United States, 279 U.S. 96: 3, 299 (1929) ; United States v. Romano, 382 U.S. 136, 138; (1965) ; Duran . United States, 413 F. 2d 596 (9th Cir.), cert. denied, 396 v. S.. 917 (1969): : Banzer ©. United States, 367 BF. 2d 865 (Oth Cir. 1966), cert, denied, 385 U.S. 1009 (1967).; Wilson v. United States, 316 F, 2d 212 (9th Cir..1963), cert. denied. . 379 U.S. 960 (1964), | > "We AFFInM. ‘ Ce ‘Order - TN THE UNITED ST ATE S COURT OF APPEALS For THE Nisth ( IRCLIT U NITE D ii ATES Or AMI RICA, “* Plaintiff -A ppellee,, “VS, LOUIS ZK MI. K lt, aka HARRY KATZ, Somiaiahecuiecodguit reat Defendant- Sues Mant. —No- Sf SAr- Before: Bares, Hvesrepier and Wricut, Circuit Judges. Counsel for appellant. files-an- untimely petition for: ‘Te- | hearing, and: a supporting affidavit, which, if accurate, in- dicates he niade no effort between March 3, 1970 and. : ‘April 9, 1970' to obtain an extension of time Nitta an Rule 41 (2), which he now also seeks by motion, Nevertheless, we order the petition and order filed. While appellant specified in his notice of appeal that he appealed from the conviction “on Count ITI, 18°U. §. v.- § 659 (possession of goods and chattels stolen from foreign — commerce), he -_ not brief or argue Count IIT on. appeal, Appellant's bri ief-on appeal raised four arguments. The first related to xhibits: 1D and 16 andCount. I only; the second to the weight of the identification of defendant bv witness Akin: only; the third, a line-up identification _ we 19 ye : cele ee ; ‘ : ‘ ’ problem relating to both the witness Latham and Akin———— oe and Exhibits 6 and 13, without relation to Count TIT; and the fourth, Exhibits 6 and 13, relating to similar tilda ; of Express checks not charged as criminal acts in. the in- *dlictment. — = 4 ~~ The first point disregarded testimony of other. identifieas 4 tion witnesses (such as Sehriber, R. T. (6). ‘No° issne was raised with regard to. any ‘preof of posses- sion of Exhibit Tl, or to the Ather testimony” (a) that . ees -ecTtain numbered traveler's checks were stolen ‘in the State st : ‘ot New York (testimony of Mulhearn ‘and age (b) | _ passed or attempted to be passed in Nevada (Ex. 7, T, R._ I 805); and (ce) that the appellant ltad ¢ertain of 7 num- _ « bered cheeks stolen -from ‘foreign commerce in New York. * _in his personal possession in_Las Vegas (Io x4, Tr, 70-82), as well as having possession of ‘others sei ized purnant toa. search (made after issuance of 4 search warrant, Exs. 9, 10) of the defendant's hotel reom, which consisted of: forty books of the stolen traveler's checks: (Plaintiff's Ex. 11). r Thus it is clear that the appellant was guilty of Count TIT, . which perhaps explains why an appeal was technically taken from the conviction on Count TTT, but ‘never raised or mentioned. in the appellant's brief nor during oral argu-— | ment. . aoe ie. ae The petition for rehearing is denied. ‘The motion to stay, mandate pending petition, for certiorari will be granted in the. usual separate form of - order. |. | ; - , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1668%3A1. 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