Opposition Brief — Stifel v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1970

© No, 1256

ORVILLE E. STIFEL, II, PETITIONER

> We

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

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BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. Ex. B)

is reported at 433 F.2d 481.

JURISDICTION

The judgment of the court of appeals was entered

on October 29, 1970. A petition for rehearing was

denied on December 24, 1970. (Pet. Ex. A). The

petition for a writ of certiorari was filed on January

(1)

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20, 1971. The jurisdiction of this Court is invoked

under 28 U.S.C. 1264(1),

QUESTIONS PRESENTED

4 Whether the trial court erred in admitting into

evidence expert testimony of a government witness

concerning the results of identification of certain

bomb fragments by neutron activation analysis,

2. Whether it was error for the trial court to

admit-black and white photographs of the victim into

evidence,

8. Whether the trial court erred in giving a sup-

plementa! Allen instruction. |

STATEMENT

Atter i; jury, trial in the United, States District

Court for the Northern District of Ohio, petitioner

was convicted under 18 U.S.C. 1716 of sending a

bomb through the mail which caused the death of one

Danie] Ronec.' On May 1, 1969 he was sentenced to

imprisonment for life. The court of appeals af-

firmed in a lengthy opinion (Pet, Ex. B., 14-36),

The evidence showed that on the afternoon of

July 8, 1968, Daniel Ronec, a graduate student at

Ohio State University, was killed in his parents’

home in Lorain, Ohio, by the explosion of a bomb

(Tr, 17-18, 26, 41-42, 44-46, 49-50),

To show motive the government established peti-

tioner’s former relationship with one Cheryl Jones,

—

We are lodging with the Clerk the tranacript of trial

(rr).

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to whom Ronec was engaged to be pharried at the

time of his death. The record shows that petitioner

and Miss Jones dated regularly until the fall of 1966,

at which time she sought to terminate the relation-

ship (Tr. 152-154). At the time of her decision to

cease seeing petitioner, she was dating Daniel Ronec

(Tr, 155).

In November of 1966, after a series of arguments

between Miss Jones and petitioner, Miss Jones re-

ceived a typewritten letter which later proved to be a

ruse by petitioner in order to meet with her (Tr.

166-169). At was at this meeting that petitioner

learned of Miss Jones’ engagement to Ronec (Tr.

720). Later that evening, Miss Jones received a tele- .

phone call from petitioner in which he stated that he

had been on his way to Columbus with a gun to shoot

her and whoever she was with (Tr. 169, 208; 205).

Miss Jones testified that, sometime later, she received

two letters from petitioner that could be regarded as

threats (Tr. 178-179). Petitioner admitted writing

these letters (Tr. 735-738).

Sjhbortly prior to the bombing, Lawrence Meehan,

a friend of petitioner, accompanied him to Colum-

bus; petitioner asked Meehan to deliver a letter to

Ronec on Highland Street in Columbus but the letter

was never delivered (Tr. 248-251, 258). Ronec was

listed in the Ohio State University directory at two

addresses, one on Highland Street, the other in Lorain,

Ohio, the site of the bomb explosion (Tr. 172-178).

* The pertinent parts of these letters are reproduced in the

opinion of the court below (Pet. App. B. 16-17). .

a

Petitioner testified that he and Miss Jones had en-

gaged in sexual intercourse (Tr, 665-667), and that

she had told him that she thought she was pregnant

(Tr, 667). An argument followed and a period of

approximately two weeks elapsed before petitioner

found out that Miss Jones was not in fact pregnant

(Tr. 668-669), Petitioner later testified that he felt

Mise Jones had made a fool of him (Tr. 675) and

also tpld of the ruse he concocted to gain an oppor-

tunit talk with her (Tr, 675-676, 782),

The government called one Ronald Johnson, a friend

of petitioner, who established petitioner’s knowledge

of firearms and explosives and also testified to the

presence of a workshop in his father’s garage (Tr.

222-240). In addition, employees of Proctor & Gam-

ble, where petitioner worked, testified that mailing

cylinders similar in size to that described by the

postman who delivered the bomb were available in

a stock room to which petitioner had access, along

with other materials (stickers and tape) like those

used on the bomb package (Tr. 268-269, 271-278).

In order to link petitioner directly to manufacture

of the bomb, the government produced expert wit-

nesses who testified that fragments of the mailing

tube, pieces of the mailing label, and tape recovered

at the bomb site were of the same “batch” as similar

items found at petitioner’s residence and place of

employment, This determination was made by sub-

jecting these samples to microscopic examination and

neutron activation analysis (Tr, 897-399, 400-401).

Another export witness testified that portions of the

device used to detonate the bomb were identifiable as

5

a particular switch, “Switch Craft #10002” (Tr.

298-294) and that a mail order electrical supply

catalog advertising such switches for sale was found

in petitioner’s residence when it was searched pur-

suant to a search warrant (Tr. 328).° -

ARGUMENT

1. Petitioner claims that the results of the neutron

activation analysis were inadmissible because (1)

the government’s witness had failed to cleanse the

sample, and therefore the results obtained were un-

scientific, and (2) the test is too new and has not

gained general acceptance in its particular field.

The court of appeals thoroughly canvassed this

issue in its opinion (Pet. Ex. B, 23-25) and there

is no need to repeat its discussion here. As the opinion

points out, neutron activation is a sufficiently reliable

scientific method so that evidence thereof is ad-

missible. With regard to the claim that the sam-

ple was not washed clean of impurities, Mr. Scott,

the government’s expert witness, testified that de-

spite the presence of any contaminates the ba-

sic elements of the material could be ascertained

by the neutron activation analysis. He also indicated

that a washing process was not necessary since for-

eign particles on the sample in question could be

physically removed (Tr. 380-381, 427). As the court

below held, objection to the procedure followed by

»The search also uncovered eight out-of-town newspapers

containing articles dealing with the Ronec bombing (Tr. 448-

450, 456-460).

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Scott went only to the weight to be accorded his testi-

mony,

2, Petitioner claims that the admission into evi-

dence of two black and white photographs of the

victim taken shortly after the explosion was error

because they were inflammatory, As the majority

below held (Pet, Ex, B, 85), however, despite the un-

pleasant scene depicted, the photographs had proba-

tive value that outweighed their possible prejudice.

By supporting the government's contention that

Ronec was killed as he was opening the package,

thus demonstrating the force of the explosion, the

pictures were relevant in establishing the lethal In-

tent of the sender of the bomb, In addition the ple-

tures were used by one expert as the basis of his

opinion about the nature of the explosion that caused

the victim’s death (Tr. 311-812), Accordingly, the

admission of this evidence was not an abuse of discre-

tion, Rivers w. United States, 270 F. 2d 485, 488-440

(C. A. 9), certiovari denied, 362 U,, 020; Married

v. United States, 380 F. 2d 28%; 286-287 (C. A, D.C.);

United States v. Cartano, 420 F, 2d 862, 363.366

(C. A. 1), certiorari denied, 897 U,8, 1054,

3, Petitioner contends that the giving of a tra-

ditional Allen charge to the jury was erroneous,

Alien v. United States, 164 U,8, 492, But petitioner's

failure to object to the charge when it was given

should preclude him from attacking it on appeal,

Since no one knew how the jurors weve split at the

time the judge delivered these instructions, peti-

tioner’s failure to object may have been u strategic ©

’ decision, For even if one assumes arguendo that the

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charge had a coercive impact, this would have bene-

fited petitioner if at that time the majority was in

favor of acquittal.

In any event, the record shows that the charge was

given after the jury had deliberated approximately

eleven hours and had sent a note to the court asking

if there was a time limitation governing an undecided

jury (Tr. 286b-292b). The instructions, which were

in the standard form, are set forth at Pet. Ex. C.

Their lack of coercive impact is reflected by the fact

that it was not until after another several hours of

deliberation that the jury reached its verdict (Tr.

297b). We note that this Court has consistently de-

clined to review the recent developments in the vari-

ous circuits regarding the propriety of a supple-

mental Allen instruction, and there is no reason to

change that policy here. As we have advised the

Court in several briefs in opposition, although the

Third and Seventh Circuits have recently decided that

the Allen charge should be modified,‘ no federal court

that has considered the question has held that the

mere giving of that charge is per se reversible error.

See United States v, Bowles, 428 F, 2d 592 (C.A, 2);

United States v. King, 417 F. 2d 633 (C. A. 5), cer-

tiorari denied, 897 U.S, 923; United States v. Meyers,

410 F. 2d 698 (C. A. 2), certiorari denied, 396 U.S.

835); Fulwood v. United States 369 F. 2d 960 (C. A.

D. C.), certiorari denied, 387 U.S. 984.

Vnitod States v. Fioravanti, 412 F. 2d 407 (C. A. 8), cer-

tiorari denied sub nom, Panaccione v. United States, 896 U.S.

887; United States v. Brown, 411 F. 2d 980 (C. A. 7), certio-

rari denied, 806 U.. 1017,

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