Opposition Brief — Brickey v. United States

‘on the Supreme Court of the United States

Ocropek Term, 1970 .’

. ke

No. 363 ,

WituiaM C. Brickey, Jr., PETITIONER

v. |

-Unrtep States OF AMERICA

CN LL UTION LOR A WRIT OF CERTIORARI TO \rar v item

~.-ATES COURT OF APPEALS FOR THRE EIGHT ge IRCUIT

BRIEF FOR THE UNITED Leon IN OPPOSITION

| OPIN LON” =.

The. opinion_ef the court of ' appeals (Pet. pate By

_ is not yet reported.

JURISDICTION.

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The judgement of the: court ‘of appeals was entered

on April 24, 1970, A petition for rehearing was denied ,

on May 25, 1970, Mn. Justice B lac ‘Kmun extended ton

_time ‘for filing 2 petition’ for a ‘writ of certiorari to

Ful 6, 1970, on whieh date the petition was filed. The

oP of this Court is Invoked under 28 U.S.C.

1254(1).

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‘100-477—70

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a QUESTIONS PRESEN ==D

1 WwW hether the grand -jury was. properly ‘selected.

. Whether ev idence’ ‘of 1 Use of the niails was suffi- *

oon to sustain pe titioner ‘sfeony iction under the mail

fraud statute, IS U.S.C. 1344.0 000 =

+3. Whether the trial court properly (permitted

" itness to: take the stattd when it had prior See

that he might. plead the Fifth Amendme nt privilege

: agaist self- inerimination. ae ; he

4. Whether testimony relating to petitioner's per-

sonal expenditures Was. properly admitted.

. Whether the omission of certain charts from. the, -

ta on appeal constituted a denial ef appellate.

review, eae

STATEMENT 6

“After 2 jury trind, in’ the Unitéd States District

Court for the Eastern Dittrict of Arkansas, peti-.

tioner way ConVieted on two counts of mail fraud in

vidlation of I8 U.S.C. 1341.0 On March 24, 1969, he

Was sentenced to four vears “impr isonment. The court

appeals affirmed.

The evidence dise Ronee that, in 1963, petitioner be-

eame President and Chairman of the Board of an

insurance-comipany in Arkansas, called Repirdblic (Tr,

IS). From then uittil Mareh i2

went into receivership, the wn panay’ Was Inselvent (Pr.

39. 554: ‘T4140. However, the annual financial state-

ments, for the years 1963-1965, certified by petitioner

and submitted to the State Insurance Department,

' Petitioner Was originélly indicted on 24 counts of mail

frand. However, 22 ‘of the3e were dismissed priov to trial.

Vntted Ntatesy. Brickey. YO E, Supp. Ty.

. am Be

io. 1957, when Penmuble

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personal note (Tr. 547-548). = Republi

a

indicated | a bets. of assets over liabilities (Tr. 19-—

'- 29)? To effect this apparent surplus, petitioner caused

Republic to purchasé and list as‘ assets several items

“which had nominally large face values but ‘were. “in

‘fact worthless. Among them were two certificates of

deposit issued by banks 1 in Colorado and the Bahamas,

which were’ controlled by Mr. Frank. Blosser (Tr.

345, 400, 415, 427-428, 641). At the time the statements -

were prepared, both hanks were Insolvent (Tr. 418,

423, 681-682, 690-691). ° re |

In Jaruary 1965, petitioner purchased a controlling

interest im gnother insurance company, United Bene-

‘fit (Tr.-5 937-538). It was purchased with two cashier’ s

checks of the Central National Bank of Chicago, one

for $75,000, the other. for $35,000 (Tr. 538-5: 39). The —

$75, 000, check was hought with a check. for the same

amount drawn on the Republic account in the Wor then

National Bank of Little Rock, ° Arkansas. This check *

was sent from Chieago to Little Rock through the '

mails and ‘cleared. prior, to purchase of the eashier’s

check (Tr. 540, 562, 650-655). The $35,000 check was

purchased with a check ‘payable - to petition r and

Republic drawn an the account of. Leonhart a1 id Com-

pany at the Mereantile Safe Deposit and Tryst Com.

pany: of Baltimore (Tr. 540-541). This ws a loan

to petitioner secured by a,$35,000 check drafvn on the

Republic account with the W%6 oMben Bajk and his

check was

N

*The annual” Statement for 1966 was not submitted since

receivership proceedings were instituted before it was due to

‘be filed (Tr. 15). A working copy of this statement, admitted

at trial, revealed similar overstatements (Tr. 16, 41),

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de ‘posite don F ebruary 1, 1965 3 in the’ Mardis Trust

Company (Tr. 548-550), and, sent: through the tails

to ‘the Ww ‘orthen Bank ‘where it eventually cleared

(Tr. 550-555 : ; 562 ? 650-655).

‘Petitioner also used Republic funds, dincetly or in-

directly through a wholly-owned holding: company,

Ateneral Leasing Corporation 4 Tr. 152-154, 523-525),

pay for reinsurance of. United Benefit (Tr. 519,

923-525) and, to buy jewelry (Tr. 614-621), a swim-

ming pool (Tr, 633-054) and other personal items.

As evideneXvegarding persanal expenditures was in-.

troduced, the Court admonished the jury consider

it only insofar as it revealed’ petitioner's scheme to

draw funds from Republic for his own use (T'r:622).

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a Petitioner’ ’s“Inotion ‘to: dinmaias the indic dinent On:

the ground that the grand jury was improperly drawn

was correctly. denied prior to trial." The grand jury

list was selected using the key man system; ' ques-

tionnaires had been sent to representatives of the 42

counties conaprising the Eastern District of Arkanisas

to obtain the names of qualified persons (R. 20). The

guidelines recommended by the Judic ‘ial Yonferene 6 of.

the of nited States were used in making the final. se lec

tion’ Se 25).

We are lodging a copy’ of thé transcript of the hearing -on

the motion’ with the (Clerk of this. Court. “R” store to this

transeript. ‘

Petitioner's suggestion tH at the ke man System is unconsti-

tutional per se is without. merit. See United States v. Tropiano.

418 F. 2d -1069 (CLM 2). Mobley v. United States, 379 F. 2d

768 (C.A. 5). ‘

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ARGUMENT neers

. Sad

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Thére is no evide nee cof systematic exe lusion or

limit: ationcof an identifiable group from the. fe list.

— Rabiiowit: V. United Stgtes, 366 F.2d 34 (€ ALD),

and. Henslee y. Stewart, 311, F.2d Gal (C. AL S). cer,

tiorari demed, 373 U.S. 902, Upon Which’ petitions ¥?

relies, are therefore inapposite. Nor is there. Mav in--

dication’ that improper standards were used ‘in the

final se lection, Absent such evidence, petitioner fails to

overcome the presumption that. the list represented ae

f , ‘ \

fair cross- section Of the community, SUA NV, ae

. pama, 380 US. 202; Hoyt. v: Florida, 368 U.S. 57:

Sanders ve U nited States, 415 F.2d 621 (tA: BY.

2. PRe fact that ‘checks sed K petitioner in His

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purchase of controlling stock in United Benefit were

sent through the mail. in order to be cleared fer col-

2

‘lection was sufficient to prove use of the m: ulsanider

es .

.

the mail fraud statute,

Count i of the indictment alleged that petitioner

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issued a $75,000 check dyawn, on the Repubhie accouit -

at the Worthen Bank in Arkansas in. order to pur

chase stock in U nited Bene ‘fit as part of his plan_te——

deplete Republic’ S assets. P ctitioner” s attorney testi-

fied that, to obtain a cashier's check from the Central

Bank in Chicago for the purchase, he sulmitted the

Republic check for collection, Only ‘after_the chock:

had cleared was the attorney able to get the cashier's:

check. An officer of the Arkansas hank testified that

‘the cheek coulgl only have atvived for clearing by use

-of the mails (Tr. 650). |

Coint I] dealt with a $35,000 check used in the

transaction. In order to oe these funds, petitioner

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procitred a $35,000 loan from Leonhart and Company

-of Baltimore, Maryland. fn exchange for this loan,

, petitioner gave’ Leonhart a $35,000 cheek drawn on

the Republic account in Arkansas, secured’ by peti?

tioner’s personal note. The Republic check was later

deposited iIn‘a Baltimore bank,- and was mailed to

Arkansas for clearing. "When the check cleared, peti-

tioner’s liability on the. note W: as extmguished.

_ In both instances. the clearing | process, throtigh use

“of ‘the mails, was necessary to oases petitioner's

fraudulent scheme: Pereira y. United Slates, O47 .

US. 1. ,

er we \ he trial fide Ss handling | of witness Blosser,

ne asserted his Fifth Amendment privilege against

self-incrimination, was not. prejudicial error, Blosser

Was -ealled) in connection With two ipo eee

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deposit having a face tale of $100,000 éac bawwhic h

were listed by petitioner in Republie’s finfancial state- ho

ments. Blosser was. president of ‘the issuing banks.

Before the witness: could be swonh, Sounsel for peti- rr

tioner informed the. court that he intended to plead

his Fifth Amendment privilege and requested an

examination In chambers, but the court permitted the.

witness to take the. st ind immedtately, After three

questions, the witness was asked his relationship with

one of the hanks. He re ‘fused to answer, claiming the -

. privilege (Tr. 369). The trial jrdge then retired to,

_ chambers whére. he determined the claim tosbe well-_

rounded. Upon returning to the éourtroom, the judge

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admonished the jury to disregatd Blosser entir ely and —

.to draw ano inference against: petitioner from his ven

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fusal to-testify (T V, 372-373). Be hor ha

It would have been error if the prosecution made a a

flagrant sind conscious attempt. to build its case en in

~ ferences drawn. from. the refusal of ‘the Witness to,

} aoe or if the re sfusal, te-testify added eritical weight

» the prosecution's. case in a form not subject =

CVOSS-@ xamination., Namet v. United State & 373 US

179, 186-187. In this. case, however, the qnestioning

ended when Blosser invoked the privilege. The prose-

¢utor made no later reference. to the’ refusal” aid no

effort to connect Blosser’s alleged criminal acts with *

petitioner. The trial judge properly directed the ju?

not to ‘consider the witness's: refusal to’ testify. ye

incident , Was a: minor one ‘during: ‘the course ‘Of

lengthy trial .in which 33 witnesses” were ‘éalled. as

United States y. Poff man, 385 B. -2d o01 ( C.A.-7),

“certiorari denied, 390 U.S, 1031; United States ns

Har mon, 339 F. 2d BOF "(CA 6), certiorari ‘denied, |

BRO TS, 944.0 os

4. Testimony concerning specHigapersonal expendi-’

tures by nikitieoe with Republigémoney Was properly

adititted as part of ‘the proof of the extent of fraud.

In each instance. a check drawn on the account of .

Republic or General Leasing was used. Other evidence

indicated that ‘Republic funds had heen diverted into

say ~

the General Leasing account. bi Nate ogee

Petitioner complains of the fact that this. evidence.

was admitted despite petitioner’s stipulation that,

“an evidence.

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funds from both companies were used for his own

“expens& (Tr. 612, 621-623). He contends that the ..

evidence was therefore irrelevant and, ' ‘even. if rele-

vant, so prejudicial that only his stipulation ‘that: the

funds were for personal use should have --be en ad-

> mutted. The judge instructed the jury ‘that the evi- |

dence. of personal use of the funds was Material to

show the manner’ by which petitioner diverted funds

from Re pubhie and: that the particular se made «was

of ho Concern ( Tr. 621-62 3). It was within the cout "s.

discretion to permit the government to present its

evidence Father tlian. accept petitioner’ s ‘stipulation. -

| Seales. v. United Séates, 367 U 3S. 203; United States -

¥. Pollack; ATT F, 2d 240 (CA. 5), certiorari denied, —

se U St 917, rehearing denigd, ; 97 US. S. 1030. ae

. Petitimer’ s-appeal-was not prejudiced hy the

ract that illustrative charts which had been employed

by a ‘govermment auditor in: explaining the. complex

financial aspects. of petitioner’s scheme to defraud

Republic were. hot made part of the appe Rte recard,

The responsibility for inclusion of the charts rested

With petitioner. The xppellate court was not hamp-_

ered in considering peytioner’s contentions In“ any.

event. The testimony of the witness made it clear that

“the charts had heen: prepared solely from company |

osit slips and other financial documents

e described, each chart. in detail (Tr.

664-745). Sinte: the court of appeals had’ before ita

complete picture of both the nature and the contents

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of the charts, it. was hot. necessary to view them —

physically in order to’ meet petitioner’s claim.’

CONCLUSION |

For the foregoing. re: asons, it is “respectfully sub-

mitted that’ sa petition fora Writ: of certiorari be

. denied, -

. pe X. Grascus. me

eee an Solicitor Gene) ral

WiLL WILsox,

- Assistant Attorney General.

BEaTRICE RoseNBERG,

ae D G. ScHERAGA,

- Attorneys.

AUGUST sa

7 At trial, petitioner did not question the. accuracy of the |

meen Indeed, lve raised only one objection to them, the char-

acterization, of a certificate of deposit as’ “worthless.” This———_

objection Was sustained <(Tr. FOS-7T09), Moreover, the’ court

"instructed the jury that the charts carried no probative weight

but, were being employed merely to illustrate the witness's

testimony (Tr. 746-747).. The trial Judge properly allowed

their use. United States v. Pollack. supra: United States y.-

Goldberg, 401 F. 2d 644 (CA. 2), certiorari denied, 393 U.S.

1099; MeDaniel y. United States, 345 -F. 2d 785 (CLA, 5),

certiorari denied, 382 U.S. 826... os ; eo

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US. GOVERNMENT PRINTING OFFICE: 1970

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