# Opposition Brief — Stifel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0648%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 994 ## Text 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 2 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) —_ 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). 8 8 . 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). 6 : { 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 7 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, “ re) * 2 — ä — — „ „„ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0648%3A2. Public record. Not legal advice.