# Opposition Brief — Tierney v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0162%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 850 ## Text 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- WD a ° ~\ a % © - 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 io) 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). . . 4 “* - . - ° ia . 4 ‘ 5 c . e. . . Oo 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). —~ eights! 3% ER EA. 5 iphes . ‘'? ; 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, ° $ 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, yy < a ¢ 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 rer oT eee So A ‘ fe s 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. - F . ° = o. BEATRICE ROSENBERG, Te. / EDWARD FENIG, . > Attorneys., ‘(1 esa eRe AUER : : -°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 ‘J . . . 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 ° a e . t ; sors : eae e . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0162%3A2. Public record. Not legal advice.