Opposition Brief — Tierney v. United States

In the inten Court af the United States

OCTOBER TERM, 1970

No. 337

THOMAS TIERNEY, PETITIONER

Vv.

° UNITED STATES OF AMERICA

ON PETITION FOR. A WRIT OF CERTIORARI TO THE

UNITED STATES. COURT OF ir FOR

—— “THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION |

OPINION BELOW

The opinion of the court of appeals (Pet. mo A)

is. nepor ted at 424 F, 2d 643.

J URISDICTION

The judgment of the court of spiesie was entered .

on April 7, 1970. A: petition for rehearing was de-_

nied on May.27, 1970. The vetition for a writ of

certiorari was filed on June 30, 1970, and is there-

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- fore out of time under Rule 22 (2) of the Rules of

this Court. The _jJurisdiction of. this Court is invoked

| under: 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner’ S acquittal of EN Ee to.

counterfeit at a trial where the jury could not agree ~

as to two: substantive counts of aiding and abet-

ting counterfeiting, barred, -under the doctrine of “col-

lateral estoppel, petitioner’s subsequent: trial for the

substantive offenses, :

2. Whether the court erred in a to furnish

the transcript of the grand jury testimony of a con-

templated defense witness in advance of the witness

_ testifying for the defense at trial. ~

STATEMENT -

1. After a jury trial in the Wnited Stateg District

Court for the Central District of California, peti-

tioner was convicted on Counts 2 and 3 of an indict-

ment of. aiding and abetting the counterfeiting of -

United States currency, in violation of 18 U.S.C. 471

_ (1 R. 2-5).* -At an earlier trial in November 1967,

- petitioner had been acquitted by a jury on Count 1

of. the same indictment, of con’piring to make and sell

counterfeit money, but that jury’ had been unable .

to agree on a verdict as to the aiding and. abetting

(5 R. 786-787).* On February 5 , 1969; petitioner

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ES : Su preceded by the volume nimber refers.to the san

volume record on file with the Clerk of this Court.

> An earlier trial, commenced in, October 1967 on all three

counts, resulted in a mistrial. i

Bath ae ae

was sentenced to ‘four years’ imprisonment on each

count (Counts 2 and 3), to be served- concurrently,

with parole eligibility to be determined under the pro-

‘ visions of 18 U.S.C. 4208(a) (2) (1 R. 316). °

_ The evidence showed that in mid-1966, in Cali-

fornia and Nevada, petitioner, through a corporate

entity, operated a mail order nowelty business which

owned cameras and printing, equipment,. and em-

- ployed a printer named Davenport (6 R. 130-131,

167, 171, 7 R. 337, 340). In showing his plant to his

brother-in-law, one King,.and an acqualitance named

Mike Francis, petitioner stated that-he could print

anything, . even money (7 R. 482).

‘Shortly after petitioner’s initial meeting’ with.

Francis, another meeting was held in which the sub-

ject. of printing counterfeit money ‘was discussed.

-Petitioner called Davenport from his work to Xttend |

-this meeting in petitioner’s office. After Davenport - ee

* agreed to aid in the printing of (100,000 counterfeit

$10 bills, petitioner’ gave him the. genuine $10 bills re-

quired to make the necessary plates for reproduc-

ing the bogus bills (7 R. 340, 348, 435, 490). Later,

during May 1966, Dav enport and King ° oper ated the

_ presses, with petitioner being present at the plant

during part of the time the pr inting Operation was in

progress (7 R. 351, 504). |

Following the printing, King left the ‘west coast

area with some of the money (6 R. 161-163, 179, 7 R.

353, 8 R. 607-608). In the two-month interim after —

‘Under Count 2, > petitioner was charged with aiding and.

~ abetting these two individuals in the manufacture of counter-

feit $10 Federal Reserve notes (1 R. 5).

; with ‘petitioner and the corporation’s ‘vice-president,

. one Davidson, who had aided in the concealment of -

the evidence of the first printing (6 R, 169, 173, 178). .

ee | second printing was agreéd. upon, and Daven-

_ port, the printer, was again employed (6 R. 182, 184).

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the itay 1966 printing, over $100,000 of ue

$10 bills were passed in the Los Angeles area (8 R.

“556).. On July 25, 1966, Francis was ‘arrestéd in

California, for selling and possessing counterfeit $10

bills.. He offered his assistance to the Seéxet Service

. (6 R..277, 8 R. 557), and. was then asked: to intro-

‘duce an‘ undercover agent as a prospective. buyer to

the people engaged in printing the counterfeit money

(7 R, 314). At. this time, the Secret Service believed

that the counterfeiters were planning a ‘second print-

ing of bogus-$20 Bills (8 R. 561, 564).

In late July. and ear ly August 1966, Francis’ met

Petitioner gave Davidson $1,000, for the ‘necessary

; supplies: (6 R. 189), and gave Dav enport the ¢enuine

$20: bills that Davenport needed t6 make the negh- |

- tives.’ He also furnished and‘ shipped from Nevada

to Califor nia the equipment.that Davenport needed to

do the printing (6. R. 199-203)., After the printing,

Davidson -and Davenport’ sought to make delivery to . |

the undercover agent that Francis had ‘introduced

as a prospective buyer. They were then arrested *

(6 R. 134, 205-206).

2: Francis‘ was given immunity, and testified be-

_fore the grand jury (8 R. 543-544). Due to his sub- —

‘ Under Count 3, petitioner was charged with aiding and .

abetting Davenport” and Davidson in the manufacture of

“counterfeit $20 poder al Reserve notes (fF R. 6).

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; sequent disappearance, howe ver, he was not available

* as.a witness at the trial in November 1967 (8 R. 544-

545), ‘but he was lodéated shertly before » ‘commence-

ment of the instant 1968 trial. Francis retained an

attorney who arrenged - for Frayeis ‘to confer with |

‘petitioner’s attorney (8 R. 604-605). Later, in inter-

‘viewing Francis as to his expected testimony, the

prosecutor leatned of this conference with the de-

fense counsel and of changes in Francis’ version ‘of -.

_events. In the prosecutor's opmion, -such * “alleged

facts” newly related by Fraicis could be considered

‘ favorable to the defense. At the outset of the: trial, °

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the prosecutor disclosed these devétopments.. to the

court and stated that the gov ernment would not .call .

Francis as‘a prosecutibn w ‘itness. He informed the ©

defense that Francis w ould be available as a defense

witness (10 R, 23-24, 26, 905. _The ‘defense. thei n re-

quested ‘a copy, of the transe ript of Francis’ ‘evand

jury testimony. -The xoverfiment opposed this re-

" quest and the court, after holding its ruling-in abey-

ance, denied the request (10 R. 89-90, 7 R. 400-407).

Although the petitioner’s -counsel indicated in his .

opening statement and: twice following the ‘denial of

his request for a copy: of the grand jury transcript

that Francis would bea! Hed as a witnéss (10 R. 90,°

120, ‘7. R. 419, 595) Fra nels Was noy calle ed up pon to |

testify” at trial.

ees.

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

it presents no issue of merit.

1. ° The court below, in accerdance with its earlier’

opinion in Cosgrove v. United States, 224 F.2d 346,

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assumed that where the jury acquitted, as: to one

count ‘ind disagreed as’ to others, the doctri ine of ‘cul-

‘late ral estoppel applied with respect to ‘retrial on

counts, on which” there hid been disagreement. See

Ashe ve Swcnson, 397 U.S. 436. It found onthe ba- |

.sis of the facts, however, ‘that acquittal on the con-'

- spitacy count aid not necess sarily represent “a .dever-

mination that petitioner had not aided anc abetted

the counterfeiters, “- 0 |

This ruling is supported by the facts. The ai

jury could have found only that petitioner rad 1

beeh general partner in the counterfeit ope vation =

‘thus was not a-part-of the ‘over all’ conspiracy. - The :

evidence, for example, did not show that petitioner

profited from’ the pitnting of the counterfeit bills. ~

The evidence clearly established, however, that peti-

tioner furnished facilities essential ta the reproduc-

tion of counterfeit money... by King, Davenport -and

‘Davidson, the persons he was ¢ charged with aiding and

pabetting under Counts 2 and 3. Thus, thé-finding, 6£°

ee first jury that petitsoner was not a partner in

_\..the eriminal venture master minded by King and. Fran- . :

cis; was not inconsistent on this record with the: find-

ing of the second jury that petitioner had been a “will:

ing helper, one wha wi ‘anted the criminal ente rprise

y partnership 0 of the others , to succeed (see 9. R.

Oe One. need not be a conspir' ‘tor to hid and abet

anothey” person: to do a criminal. act. See . ye ow

Nissen v. United States, 336, U.S. am Slay ess 1. |

2. As the court be Jlow correctly held, the tri al judge

acted W ithiy his diseretion in refusing access-to Fran-

cis’ grand jury testimony, in advance of, his taking

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the stand as a defense witness. The. defense had in-

terviewed "Francis before trial ‘and therefore knew

‘what he was prepared to say helpful tothe defense.

Thus, no- right of discovery is here invelved, Peti-

“tioner was given the nanje of the exculpatory witness

-.so that there was.

wWliance with Bi rady V. Mary--

land, 373 US. ma: ss a

CONCLUSION

It is therefore respectfully submitted that the peti-

_ tion for a writ of certiorari should be denied. ,

oe Sees ’ -d°

_____—_7— ERWIN N. - CRISWOLD. SG Sa 79

Solicitor General. é

WILL WILSON, ;

Assistant Attorney General.

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BEATRICE ROSENBERG,

Te. / EDWARD FENIG,

. > Attorneys.,

‘(1 esa eRe AUER

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-°The trial court noted that the defense .had_int tervidwed

Francis and thereafter indicated it. Would cll Francis: ase

defense .Witness. The court offered to read the transcript in!

‘camera to determine ae conti lined infor tion favor —

to the defense ahd, if so. to furnish the auserip

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advanc® of Francis’ appearance en the sti ind, ir if not, to, -

’* furnish the transcript as! soon. as Francis’ direct SRATRIBALION :

was finished. The defense declined we offer (7 R. 400- 407).

: ST u. s eovannuest PRINTING OFFICE. 1970 9 39°692 67

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