Opposition Brief — Kiraly v. United States

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SUPREME COURT,U.S.- |

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No. 71-225

on fe Supreme Court of the ite Sintes,

OCTOBER TERM, 197 aL

’ — - Winntam Kirany, PETITIONER Fos,

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UN rrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR ws ser CIRCUIT |

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BRIEF FOR. THE UNITED STATES IN OPPOSITION

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ERWIN N. GRISWOLD, - :

Solicitor General,

- WILL WILSON,

- Assistant Attorney General,

_ ROGER A. PAULEY,

CRAIG M. BRADLEY,

Attorneys,

Department of -Justice,

. Washington, D.C. 20530.

a the Supreme Court of the Uiited States

OcTOBER TERM, 1971

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No. 71-225

WILLIA M_KIRALY, PETITIONER

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UNITED STATES OF AMERICA

ON PETITION FOR Ao WRIT OF CERTIORARI TO. THE UNITED

. STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

. The per curiam opinion of. the court of appeals is

not yet reported.

7 JURISDICTION

The. judgment of the court of-appeals was entered

on July 14, 1971. On August 13, 1974, the petition for

a writ of certiorari was filed. The jurisdiction of this

C ourt } is-invoked under 28 U.S LC. 1254(1).

QUESTIONS ‘PRESENTED

1. Whether knowledge of a federal agent’s status

is an element of the offense under 18 U.S.C,-111.

2. Whether evidence of a prior felony conviction

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may be admitted against a defendant after he takes

the stand. | — “

3. Whether failure to transcribe the grand ‘jury’.

- proceedings was error. |

4. Whether the trial. judge deeuia have instructed

the jury that the agents could not have been: involved

in their official duties if they were trespassing.

STATEMENT

After a jury trial in.the United States: District:

Count tor the Northern District of Ohio, petitioner

was convicted of assaulting tivo FBI. agents with a

“de: idly weapon in vidlation of 18 U.S.C, 111. He wa

sentenced to a suspended three- year prison. term ae

_pfaced on five years’ Benes The court of appeals

affirmed per curcam (Pet, 24-25).

The facts adduced at mit alowed that on October

. 968, two F.B.L. agents went to petitioner's house

pa connection with an mvestigation of ene George

Wells (Tr. 34, 172). ‘They knocked on the side door

and when pe titioner’s wife answered they introduced

themselves to her as F.B.E agents, showing her their

credentials, and asked if her husband wa's home (Tr.

40, 174). She invited thera in and infoxmed them that

| her husband Was inside (Tr. 40, 175). She then told

petitioner that. some F.B.I. agents were there to see

him, and they introduced themse ‘Ives and showed their

credentials (Tr. 41-42. 175-176, 395, 465). In addition,

one of the agents advised petitioner of. his constitu-

tional rights (Tr. 42, 178-179). When the agents at-

; tempted . to interview pe titiover, he became angry and

told ‘them that the ‘interview was over (Tr.-182). As

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the agents. closed up their brief cases and headed to-

ward the door through which they had entered, peti-

_ tioner said “Tl something to get you the hell out of

here’? (Tr. 44, 183). He oe top to a éabinet and

pulled out a sree (Tr. 46, 185). One of the agents °

quic bed drew his gun and ue pe titioner to “drop that

gun” whie h he did (Tr. 186). Inspection of the gun

showed it was loaded and in. firing condition (Tr.

194-196).

ARGUMENT |

1. Petitioner contends that proof of knowledge that

theperson assaulted is a federal officer is a necessary. xy

“element of a conviction under 18 U.S.C, 111. Although,

-as petitioner points out. there are some old eases taking

this view, e. g., Hargett v. United States, 183 _F. 2d

859 (C. A. 5), it is now well settled that such knowl-

edge is not an element of the offense. F.g., United

States v. Marecllo, 423 F. 2d' 993 (C.A. 5), certiorari -

denied, 398 U.S. 959; United States v. Kartman, 417

FF, 2d 893 (C.A. 9); United States v. Wallace, 368 °F.

2d 5387 (C.A. 4), certiorari denied, 386. U.%s. 976;

Tnited States v. M veers 362 F. 2d 527. (C.A. 2), cer-,

tiorari denied, 385 U.S. 920. — | |

In’ any. event; the evidence here was ample that

petitioner well knew the identity of the agents since

they. had introduced themselves and interviewed him -

for some time before he drew the gun (Tr, 41-42,

175-176, 395, 465).

2. Petitioner contends that the trial” judge’ s ruling

that his prior felony convictions could be used against

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him if he took the stand was error. It is’ well

settled that such Convictions are admissible for im- .

peachment. Waited: States v. Sanders, 412 F. 2d 854.

(C.A. 5); Nutter v. United’ States, 412 F.-2d 178.

(C.A. 9), certiorari denied, 397 U.S! 927; United

States +. Gaechillo, 416 F. 2d 231 (C.A. 2); United

‘States v. Menk, 406 F. 2d 124 °(C.A. 7), certiorari

denied, 395 U.S. 946; Montgomery v. United States, .

403. F. 2d 605 -(C.A. 8), certiorari denied, 396 U.S. ;

859. The fact that the convictions occurred thirty

vears ago, which was brought to the jury’s attention

(Tr. 381), did not: render then inadmissible. United

States v. Palumho, 401 F. 2d 270 (C.A; 2), certiorari.

denied, 39+ U.S. 947. We note, moreover, that the gov-

ermment never mentioned these convictions other than |

to correct petitioner” s misstatement of the offenses

of which he had been convicted (Tr. 443-444),

3. Petitioner’s contention that the government erred

in ‘not transcribing the grand jury proceedings is

iout merit. The Federal Rules of Criminal Proee-

‘Y dure do not require the recording of grand jury pro-

ceedings and no court has ‘held that recording is con-

stitutionally required. See United States v. Kind, 433°

F. 2d. 339 (C.A. 4): Baker v. United States, 412 F.

2d 1069, 1073 (C.A. 5), certiorari denied, 396 U.S.

1018: Louwr v. United States, 389 F. 2d 911, 916 (C.A.

9), certiorari denied, 393 U.S. 867.

Furthermore petitioner made no showing of ahy

particularized need for the grand jury testimony of.

1 Petitioner took the stand and these convictions (for break-

ing and entering and armed robbery) were bronght out* on

direct examination (Tr. 381, 443-444).

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: the F.B.L. agents who had made previous Jencks Act

statements which were furnished to petitionér’s coun-

se] and used by kim at trial (Tr. 201).

4. Petitioner contends that ifthe agents were tres- |

~ passing at the time of the. offense then they were not

_ engaged in their official duties within the terms of the

statute. Since the agents were invited inte the house

(Tr. 40, 175) and were in the act of leaving after an

. official interview (Tr. 43-44, 182-183, 404-405), -the

_. trespassing Bue is. not presented. Jn any event, the

fact. that agents may be acting in violation of the | avy

does not establish that they are. notin performane C-

of their official ‘duties. See United States v. Sterling,

369 F. 2q 799 (C.A. 3); Hodgdon ¥. | v. United States,

365 =F. 2d 679 (C.A. 8), certiorari i denied, 385 U.S.

1029; Hull v. United States, 222 F. 2d 107 (C.A. 4);

Arwood v. United States, 134 F. 2d 1007 (C.A. 6),

certior ari denied, 319 U.S: 776.

CON CLUSION

“For the reasons sated it is respectfully tial

that the petition for a writ. of certiorari should he

denied. ;

Poet ERwis N: GRISWOLD,

> ,Soliettor Gene pal.

- WILL, “Wirson,

" ‘Assistant Attorney Gene) al,

-. Roger A. Pavrey,

Craia M. Baany.

| Attorneys. ;

SEPTEMBER 1971. eh eta,

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- | ys. GoveRNMeNT PRINTING OFFICE. 197:

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