# Opposition Brief — Lipsey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1221%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 404 U.S. 824 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1221%3A2. Public record. Not legal advice.