# Brief for the United States in Opposition — Riggs v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1229%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1971 - **Citation:** 404 U.S. 823 ## Text Opinion below _. Jarisciction .......... Ae aes 2 2 . Questions presented Sane | 2 8 6 Statement __... Argument “ Conclusion - 2 Gers 15 CITATIONS Cases: . Barnard | v. United States,-16 F.-2d 451, certio- ' rari denied, 274 U.S. 736 .. oe, PE 8 Bell:v. United-States, 100 F. 2a “AT4 PEM Sa tere 8 Blitz v. United States, 153 U.S. 308 8 Crain Vv. United States, 162 U.S. 625 -...._._. 48 Gold v. United States, 352 U.S. 985 . wae Halliday v. United States, 394 U.S. 8381 Cd Johnson Vv. United States; 207 F. 2d 314, certio- — ' rari denied, 347 U.S. 938 cos ll McCarthy Vv. United States, 394 U.S. 459 __. - 367 Morgan V. United States, 399 F. 24.93, certiorari . © denied, 393 U.S. 1025 __..... + Parker Vv. United States, 252 F. 2d 680, certiorari denied, 356 U.S. 964 - —_ “SEL ar 8 Remmer v. United States, 347 US. 227 | ph ee a: ee Remmer y. United States, 350 U.S. 377 —.. > ie United States v. Crummer,.151 F. 2d 958° caaaeeataak 7 - United States v. Greenberg, 30 F.R.D. 164°... 7,8 United States’ v. Lennon, 246 F. 2d 24, — Gael, BT Te cp i es are. . United, States v. McGuire, 381 F. 2d OR re 8 United States v. Shavin, 287 F. 2d 647 _.- 8 ' United States v. Sorcey, 151 F. 2d 899, certiorari denied, 327:.U.S.:794 _........ MLE aa ex ae NO 11-12 United States v. Warner, 428 F. 2d 730 sO T Vandersee V. United States, 321 F.2d 57... 8 Weiss v. United States, 122 F. 2d 675 7 Wheaton v. United States, 183 F. 2d 522... 12 . Statutes and rule: . _ ° Page Securities Act of 1988: ~\. eee Section 17(a), 15 U.S.C. 77q(a) — - 8,7 18 U.S.C. 371 : :. 18 U.S.C. 4208 (a) (2) . = 3 Rule 7(c) F.R.Cr.P.— , 8 ‘ oo eae al Ls » In the Supreme Court of the United States ie OcToBER TERM, 1970 waged oe | No. 1617. is LEON O. RIGGS, PETITIONER v. a ae UNITED STATES OF AMERICA No. 1635. FRED G.. AMICK, PETITIONER _ : | v.° j | 4 este & ’ UNITED STATES OF AMERICA _ ' trial of cases. One of the parties, over the week- °- end, contacted an acquaintance and-asked him a question which required the acquaintance to ask a member of the jury for the answer, thus, of course, bringing to the attention of the juror the party who. asked the question in the first place. The juror very’ properly related this to the Clerk, who related it to me, and I have now made it known to the attorneys, And, having considered the- matter very carefully, it seems: to me that nothing improper was intended. It “was an impropriety. It shouldn’t have been _ . done—an irregularity, if you-want to call it that, but I think nothing more than that. But I mention it to you as something that you should know about. It is possible that more will be made of it than is justifiable. In case any of this should come to your attention—although it shouldn’t—I thought I would make -that state- - ment, It is sicilaabane of what has occupied _ ree - me and. the lawyers for the last several min- ' utes, and, also, it is illustrative of what I keep . telling you in my admonitions at times that we take a recess—that you are not to form or ex- © press an opinion about the case, that you are not to‘discuss it, with yourselves or others or permit others to discuss it with you or in your hearing or presence, and I frequently add to that if any- one does attempt-to discuss the~case ‘with you or in your hearing or presence, you should promptly report it. : And a prompt, report was. s. made in 1 this case. I think on thorough reflection, that nothing.im- proper was intended, although, as I say, it was an irregularity on the part of the person who did it, which I am sure will not be repeated by any party to this action. So, with that little statement,.we will, go on. with the trial of the case. I am sure nothing out of the way will happen in the future; but if —s does, please report ‘it promptly. Considering the differing views of counsel and the tangential nature of the incident it was well within ‘the court’s discretion to instruct the jury as it did. and then proceed with -the trial.. The court’s state- ment was low-keyed and avoidedé&ny possible preju- _ dice by pointing out that “nothing improper was in- tended.” There can be no. presumption of prejudice * from this inconsequential occurrence. See, e.g., Mor- gan'v. United States, 399 F. 2d 98, 96-97 (C.A..5), certiorari denied, 393 U.S. 1025; Johnson v. United States, 207 F. 2d 314 (C.A. 5), certiorari denied, 847 U.S. 938; United States v. Sorcey, 151 F. 2d 899 - 12 (C.A. 7), certiorari denied, 327 U.S. 794; Wheaton v. United States, 133 F. 2d 522, 527 (C.A. 8).’ --4, The contention that the evidence was insuffi- cient to sustain the conviction of petitioner Amick . (Amick Pet. 19-22), who was at the center of the operation, is fully answered by the opinion of the court below upon which we rely (Amick Pet. 18a- | 16a). “5. On the day this case was set for ‘trial, peti- . tioner Nash and co-defendant Irving elected to with- draw their pleas of not guilty and to plead nolo. con- tendere to certain counts of the indictment. Erle Kightlinger, appearing for defendant Irving, stated that Nash was not represented by counsel but that _-he had" advised him as to the effect of such a plea. | - With the express permission of. Nash, Kightlinger stated the counts to which the plea would be.entered (App. 486-487). Addressing both defendants, the- court explained the possible penalties that could ‘be t Remmer V. United States, 347 U.S. 227; 350 U.S. 377; is clearly distinguishable. In that case an unidentified person suggested to a juror that an acquittal. would be. profitable - for him. The court took the matter up with the prosecution alone and an F.B.I. agent questioned the juror. The defense 2 learned: of ‘the incident only after the trial was over, by reading of it in a newspaper. In that particular context, where the juror admitted to being under “terrific pressure,” . this court held that it could not be said that the juror ‘was unaffected in his freedom of action. 350 U.S. at 381. Gold v. United States, 352 U.S. 985, is comparable to Remmer. Neither | decision is apposite to this case, where the juror attached - no significance to the telephone ‘and the lawyer for the party. who had made ‘the call without substitution of the al nted to continue the trial: 13 imposed, the right to trial by jury, the’ presumption _ of innocence, the right to participate in the selection _ of the jury and to make challenges and the nature of the plea of nolo contendere ee 488-490). = : court further said (App. 490) : : Now, Mr. Nash is not suannaial by counsel _ this morning, but in the past he at one time had — counsel. Counsel withdrew his appearance, stat- ing at that time Mr. Nash was financially able’ to hire counsel but had not completed his ar- rangements with counsel. Mr. Nash has never . indicated to the Court that he is not financially able to hire counsel. He has appeared here as his own counsel on one or two occasions, the last _ being yesterday morning, so counsel has not | been appointed for Mr. Nash, It has. been my finding or opinion, as things have gone, that he has elected to represent himself. Is that right, Mr. Nash? — Petitioner answered - ieee He further stated that no one had made any representations that his plea. would affect the sentence imposed; the court responded that any such representation would have been false (App. 491-492). In the colloquy which followed, Mr. Kightlinger stated that it-had been his understanding with the assistant United ‘States _ Attorney that the court might consider the evidence to be heard in the trial as constituting the factual basis for the plea. It- was also understood that the evidence already heard by the court in a related civil action might furnish this basis (App. 492-494). All parties were’ sentenced after the conclusion of the trial. The court found Nash guilty on the basis of 4 | 14 his plea, the evidence heard by the court in the prior . ‘ eivil action, and upon the evidence heard at this trial; jhe was feed to.imprisonment for five years. Nash was represented at the sentencing and did not scene waive counsel at that time (App. 509, 563). Nash thereafter nova to set aside the judgment ; of conviction and to’ withdraw his plea of nolo con- tendere. (1) because. it had been agreed that the fac- : - * tual basis of his plea was the evidence in the civil -. suit, which was alleged to be inadequate to show his guilt, and (5) because he was not represented by counsel at sentencing (App. 350-354). The court re- fused -permission to: withdraw the plea beause’ no adequate ground therefor was stated, but held that, since petitioner did not specifically waive counsel at” sentencing, he should be re-sentenced. (App. 354-356). Petitioner was thereafter re-sentenced to four years’ imprisonment: (App. 318-314). : | _ The crux of petitioner’s present complaint—a mat- | ter which he did not raise in his original motion to withdraw his plea—is that he was-denied counsel at the time of his plea. As the facts show, however, that was not the case ‘at all. Nash, who earlier had re- . ' tained counsel, chose to represent himself at the time © of .the plea, Although he was financially able to em- ploy counsel. Despite his vague allegations\ that he was promised leniency in exchange for his plea, noth- ° ing in ‘the record supports such a claim, and he. un- equivocally denied at the hearing that any such rep- resentations had been made. - The voluntariness. of - petitioner’s plea was properly determined at the orig- wate dye anne) 15 c inal hearing, and affirmed by the court below.’ There is no reason for plenary review ‘of that claim by this Court. i CONCLUSION - ‘For the foregoing reasons, it is respectfully sub- / mitted that the petitions for writs of certiorari should be — . . : | eee ei es ERWIN N. GRISWOLD, cae . - - Solicitor General. = ~_ . aie t ; Fes ete oe WILL WILSON, — : Assistant Attorney General, BEATRICE ROSENBERG, hy | KIRBY. W. PATTERSON, Attorneys. . ~ JUNE 1971. 8In an addendum to its denial of the petitions fort rehear- ing, the court below stated that although the district court had “carefully explained the consequence of the plea,” it had “omitted explanation of the nature of the charge.” The _ court of appeals held, however, that since the plea was entered before the decision in McCarthy v. United: States, 394 U.S. 459, there was no automatic requirement that Nash be allowed + to plead anew. Halliday v. United States, 394 U.S. 831 (Nash nf Pet. No. 1637, pp. 34a-35a). The fact that Nash had been ine represented by counsel at an earlier stage of the proceedings ~ . and that he had entered his plea after consultation with de- fendant Irving’s counsel supports the view that he understood the nature. of the charges against him. @ + wus. coveenwent PRINTING OFFICE; 1971 - 426651 692 . ° . ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1229%3A2. Public record. Not legal advice.