Opposition Brief — Lipsey v. United States

3 the Supreme Coutt of the United States |

‘OCTOBER 7, 1970

'- No. 1684°

BERNARD LIPSEY AND DANIEL WEXLER, PETITIONERS

a

UNITED STATES ae Peres

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF .APPEALS FOR

THE NINTH CIRCUIT :

BRIEF FOR THE UNITED STATES IN OPPOSITION.

OPINION BELOW

| The opinion. of the court of appeals (Pet. A: 1) |

is not yet reported. |

J URISDICTION .

The ‘fiighnent of the court of dameale: was entered

on February 19, 1971, and a petition for rehearing

‘was denied on April 7, 1971. The petition for a -

writ of certiorari was: filed on May 7, 1971. The

(1)

————

2

‘iiiaitbidtien' of this Court is invoked under 28 U. S. C.

. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioners’ statements, made‘ after re-

_ ceiving and acknowledging Miranda warnings, were’

voluntarily given and thus properly admitted in evi-

dence.

* 2. Whether the evidence showed that: the stolen

securities in question were a part of interstate com-

merce at the time petitioners received them.

3. Whether the trial judge erred in giving certain

instructions.

STATUTE IN VOLVED

‘18 U.S.C. 2315 provides in pertinent part:

Whoever receives, conceals, stores, barters, ©

sells, or. disposes of any goods, wares, or mer-

chandise, securities, or money. of the value of

$5,000 or more * * * moving as, or which are

a part of, or which constitute interstate or for- -

eign commerce, knowing thé same to have been

Stolen, unlawfully converted, or taken; * * *

* * * *

Shall be fined not more than $10,000 or im-

prisoned not more than ten years, or both: * * *

STATEMENT

| After a jury trial in the United States District

Court for the Central District of California, petition-

ers were convicted of receiving stolen stock éertifi-

_ eates which were a part of interstate commerce, in

violation of 18 U.S.C. 2315. Each was sentenced to

3

two years’ imprisonment: Execution of. sentence was

suspended with the direction that each serve thirty ~

days ina jail-type institution to be followed by pro- .

bation for two years. The court of. sila affirmed

per curiam (Pet. App..1). . .

.The evidence showed that stock certificates valued

at more than $5,000 were stolen in New York and

subsequently transported to Los Angeles, California

(T. 88-89).' ‘On September 24, 1969, petitioner: Lip-

sey telephoned his stockbroker, one Jon Darnall, and

asked if he could find a buyer for some “hot” securi-

ties (Tr, 15-16). Darnall replied that he would check

and call back and then contacted the FBI, with )

whom he thereafter cooperated (Tr. 16-17).

' Later that day, Lipsey telephoned Darnall and ar-_

ranged a meeting to see the securities (T. 17-19).

Petitioner Wexler also attended, and handed Darnall.

five stock certificates as a sample and an inventory of

the remaining certificates (T. 19-23). Wexler stated 4

that he could have millions of dollars worth of securi-

ties within a matter of hours (T. 20). Darnall was

instructed to notify Lipsey whether he had found a :

buyer by September 27, after which date the stock.

certificates would be sent to Miami (T. 20-21, 24).

* Darnall obtained a two day extension of this dead-

line and notified Lipsey on September 29 that he had

found a buyer (T. 2 24-27). The parties agreed. to

meet in a motel, where Darnall would introduce Lip-

? The parties stipulated to these matters. See Pet. 6. “T.” |

refers to the trial transcript, a copy of which is being lodged

with the clerk. | are

4

sey and Wexler to the buyer (T. 27-28). FBI agent

White accompanied Darnall to this meeting and was

introduced to petitioners as the buyer (T.29). Dar-

‘nall returned the five sample certificates to Wexler,

who produced the remaining stolen certifi¢ates from

his attaché case (T. 29-30, 64-65). FBI agents. then

_ arrested both Lipsey and Wexler (T. 30, 65): |

_ Agent White advised both petitioners of their

rights as prescribed under Miranda v. Arizona, 384

U.S. -436, and gave Wexler a printed form setting

forth Miranda warnings. Wexler read the form and .

acknowledged that he understood it, but refused to

sign (T. 66-67). Wexler then told the agent that

he wanted to say something and made a statement

. implicating a third man as the source of the stolen

_ securities (T. 68-72). -

Another agent again advised Lipsey of his rights

and gave him the printed form, which Lipsey read

and acknowledged that he understood (T. 83-84).

Lipsey stated that.he preferred not to sign the form.

- He then volunteered an oral statement indicating that

_-. his conscience had been bothering him ‘and that he

was 8 glad he had been caught. (T. 84- ite

| ARGUMENT |

| oe. bustiaoass contend (Pet. 10-12) that it was er-

ror to admit as evidence their inculpatory statements

_ because they were made after they had refused to

sign the printed forms. They assert that the refusal.

to sign the form “indicated a desire to remain silent” _

(Pet. 11), and that therefore all subsequent state-

a

°

5

ments were inadmissible. This is not an accept- -

able proposition where, as in this case, the record .

shows that -the defendant freely volunteered state-

ments after having been fully advised of his rights.

See, ¢.9., United States v. Van Dusen, 431 F. 2d 1278,

1280-1281 (C.A. 1); United States v. Osterburg, 423

F, 2d 704 (C.A. 9), certiorari denied, 399 U.S, 914; .

United States v. Hayes, 385 F. 2d 375, 377 (C.A. 4), .

certiorari denied, 390 U.S, 1006, The contrary hold- |

ing in United States v. Frazier, No. 23528, C.A.D. GC.

_. decided February 24, 1971, is currently the subject

of a petition for rehearing before that court.

2. Nor is there substance. to. petitioners’ contention

“(Pet 8-10) that the. stock certificates) were not in

interstate commerce atthe time petitioners received

them, The stolen securities obviously were in inter-

state commerce when sent from New York to. Cali-

fornia, The question: here is whether they ast were

' when petitioners received them. _

Whether an.item has ceased to be in inanachi aoe

merce is generally a question for the jury. Corey v.

' United States, 305 F. 2d 232, 236 (C.A. 9), certio-

rari denied, 371 U.S. 956. Here, only three weeks

expired between the theft of the securities and their

. recovery. In this circumstance, the jury could rea-

. sonably conclude that the securities had not ceased

to be in interstate commerce when petitioners received

them.’ See Corey v. United States, supra. More-

over, it was indicated that the securities would be sent

2 The trial. judge instructed the. jury that there Was evi-

dence to support either conelusion (T. 339-340). _The jury re-

* golved the issue in favor of the government.

6

to Miami if not sold in California (T. 20-21). From

this the jury could find that even if the securities

had come to rest in California, they still were so con-

nected with interstate transportation as to be part of

it. See Powell v. United States, 410 F. 2d 710, 713-

714 (C.A.'5); United States v. Maddox, 394 F. 2d

297, 300 (C.A. 4); Pearson v. United States, 378 :

2d 555, 560 (C.A. 5).

3. Petitioners’ claims (Pet. 12-14) that the trial

judge erred in instructing the jury are without merit.

(a) In instructing the jury on the knowledge ele-

- . ment. of the offense, the’ trial — stated (Tt. 335-

336) :

Possession of property recently stolen if nit |

satisfactorily explained is ordinarily a circum-

stance from which the jury may reasonably draw

the inference and find in the light of surround-

ing circumstances shown by the evidence in the

. case that the person in possession knew the prop-

erty had been stolen. |

This is a correct statement of the applicable law, as

_ recently explicated in Rugendorf v. United States, 376

U.S. 528, 536-537. Nor, contrary to petitioners’ as-.

sertion, is the inference invalid under Leary.v. United ©

States, 395 U.S. 6. -See, e.g., McAbee v. United

States, 434 F. 2d 361 (C.A. 9).

(b) The trial judge included in hig instructions 0 on

reasonable doubt the following (T. 321-322) :

e

A reasonable doubt i is a doubt based upon rea- _

son and common sense, the kind of doubt that :

would make a reasonable person hesitate to act.

ee

EE EEE,

7-

-- Proof beyorfd a reasonable doubt must: there-

_ fore be proof of such a convincing character that

~ you would be willing to rely.upon“and act upon,

unhesitatingly in the most important. of —

own affairs. |

a * * *

i. ‘eabonalile doubt exists,. therefore, whenever,

after a careful and impartial consideration of

all of the evidence in the case, the jurors do not |

. feel convinced to a moral certainty that. a de-.

fendant is guilty of the charge. -

_. These instructions were proper. Holland v. United

States, 348 U.S, 121, 140.° |

CONCLUSION

It’ is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

. Solicitor General.

WILL- WILSON,

Assistant Attorney General.

_ BEATRICE ROSENBERG,

- ROGER A. PAULEY,

Attorneys.

JUNE 1971.: | — .

* Petitioners’ additional contention (Pet. 7-8) that the

issuing of a brief. per curiam opinion by the court of appeals

denied them due process is also without merit.

| Fe oW. 8. Government painting orice; 1971 426056 699