Memorandum — Hoff v. United States

Se

Iu the Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-37

RICHARD. HOFF, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of having knowingly possessed

goods stolen from a foreign shipment, in violation of

18 U.S.C. 659. He was sentenced to one year’s impris-

onment. The court of appeals affirmed without opin-

ion (Pet. App. Al).

1. The evidence showed that on July 27, 1971,

sixty-seven cartons of ladies knit pullovers, part of

(1)

2

a shipment from Hong Kong to New York City, were

stolen from a pier in Staten Island, New York (Tr.

21; G.X. 3).2 Each carton was valued at $147.64 (Tr.

21; G.X. 3). On August 4, 1971, F.B.I. agent Colgan

went to Glow Distributors in Manhattan. He informed

petitioner that he had a search warrant for Room

501, 49 West 27th Street, located about 100 yards

around the corner from Glow Distributors, and asked

petitioner if he had a key to the room (Tr. 10-11).

Petitioner said that he did not have a key and that he

had no knowledge of the room (Tr. 11). A locksmith

opened the door to Room 501 and agent Colgan found

and seized numerous cartons of merchandise includ-

ing 11 cartons of the stolen pullovers and 38 cartons

containing stolen flashlights (Tr. 13-15).

The manager of the building, Robert Cohen, testi-

fied that petitioner and his brother had previously

asked him whether he had some place they could rent

for warehousing merchandise (Tr. 22-23). Cohen had

showed them Room 501, and, after they agreed that

the room met their needs, Cohen had prepared a

lease application dated February 24, 1971, based on

information supplied by petitioner (Tr. 23-24). Peti-

tioner at that time told Cohen to put down the name

of Peter Gordon as lessee and gave 170 West 78th

Street, New York City, as Gordon’s address (Tr. 25;

G.X. 4). The rental agent for the building located at

170 West 78th Street testified that no one named

1“Ty” refers to the trial transcript, which we are filing

with the Clerk of this Court. “G.X.” refers to the government’s

exhibits.

3

Peter Gordon lived there during the entire calendar

year 1971 (Tr. 36).

After Cohen prepared the lease for Room 501, he

delivered it to petitioner or petitioner’s brother at

the “Glow store” -(Tr. 27). The lease was returned to

Cohen signed “Peter Gordon,” together with payment

in cash for the security and a month’s rent, less a de-

posit of $100 previously paid to Cohen by petitioner

(Tr. 26-28). The lease indicated that the room would

be used for the storage and shipping of radios and

clothing (Tr. 28-29; G.X. 6). Each month from March

to July 1971, Cohen collected the rent for-Room 501

from petitioner or petitioner’s brother and it was al-

ways paid in cash (Tr. 29). Cohen never dealt with

or met anyone named Peter Gordon (Tr. 30).

A locksmith, Arthur Gatling, testified that in Feb-

ruary 1971 he was sent to Glow Distributors where

petitioner told him that he wanted a lock installed in

Room 501 (Tr. 37-38). After Gatling installed the

lock, he gave the keys to petitioner who paid him for

this work (Tr. 37-41).

Also introduced into evidence was petitioner’s grand

jury testimony, dated September 30, 1971, denying

that he had rented any space at 49 West 27th Street,

denying any knowledge of a room at that address,

denying that a lock had been installed in Room 501,

‘denying that he paid rent on Room 501, denying that

he knew Robert Cohen, and denying that he used the

name “Peter Gordon” (Tr. 45; G.X. 8).

Petitioner testified at trial that he did not rent

space at 49 West 27th Street, but that a person whom

4

he knew as Peter Gordon came to him in February

1971 and asked about space available for rent. Peti-

tioner looked for the space, talked to an agent and

gave the agent $100 as a deposit on a loft. Petitioner

agreed with Gordon to pay the rent on the loft and

to deduct the rent from money he owed Gordon for

merchandise. Petitioner claimed that he gave the

lease to Gordon. With respect to the lock installation,

petitioner testified that Gordon requested that the

lock be installed. Petitioner took care of the installa-

tion and gave the keys to Gordon. Petitioner was un-

able to provide Gordon’s address or telephone number

(Tr. 52-69).

Norman Brill, a local merchant, testified that he

met a person named Peter Gordon and had spoken to

him on two occasions in February and March or April

1971 (Tr. 92-93). On the second occasion, Brill testi-

fied that Gordon said he had a loft in the neighbor-

hood (Tr. 93-94).

2. At the trial the government attempted to intro-

duce the stolen flashlights as evidence of similar acts

(Tr. 15-17; G.X. 2). The trial court sustained peti-

tioner’s objection to this evidence, stating that “[iJf

{the prosecutor] thought they were stolen, [he]

should have indicted [petitioner] for them at the

same time. This is not a prior similar act” (Tr. 16-

17). Later in the trial, the government called a retired

United States Customs Officer to testify as to a prior

similar act involving petitioner (Tr. 46). The officer

gave only his name and former occupation before peti-

tioner objected and requested an offer of proof (Tr.

5

46-47). At the side bar, out of the hearing of the jury,

the government explained that the testimony of the

former customs officer and subsequent witnesses would

establish that approximately ten months before the

crime charged in the instant indictment, a large

quantity of stolen merchandise was found in peti-

tioner’s store (Tr. 47-48). The court sustained peti-

tioner’s objection to this proffered testimony after

being informed that the grand jury had declined to

indict petitioner for this act (Tr. 48-49).

Petitioner contends that these offers of proof were

highly prejudicial and deprived him of a fair trial

(Pet. 5). The trial court, however, upheld petitioner’s

objection to this proof and excluded all evidence of

similar acts. In its charge, it instructed the jury to

disregard questions and allegations as to facts con-

tained in questions to which the court had sustained

objections (Tr. 149). Moreover, on this record the

testimony of the former customs officer was unenlight-

ening to the jury on the matter of the commission of

another crime. Under these circumstances petitioner

was not prejudiced by the government’s offers of proof

of similar acts.

3. The jury retired at 11:57 a.m. to deliberate

(Tr. 154). At 4:05 p.m, the jury reported that it was

unable to reach a verdict (Tr. 156). The court then

gave the jury a modified “Allen Charge,” set forth

at Pet. 20-21 (Tr. 156-157). At 4:20 p.m. the jury

returned to the juryroom to continue its deliberations,

and at 6:50 p.m. it returned a verdict of guilty (Tr.

157-159).

6

Petitioner contends that the supplemental instruc-

tions were prejudicial and coercive (Pet. 19). The in-

structions given by the trial judge, however, em-

phasized that no juror was expected to yield a con-

scientious conviction (Tr. 157), and that it was their

duty to agree upon a verdict only if they could do so

without violating their individual judgment and con-

science (Tr. 157). See United States v. Meyers, 410

F.2d 693 (C.A. 2), certiorari denied, 396 U.S, 835.

Moreover, the supplemental instruction was not co-

ercive in effect, as evidenced by the jury’s continued

failure to agree on a verdict for another two and one-

half hours. See Meyers, swpra. The poll of the jurors

confirmed that each juror in his own right determined

that petitioner was guilty (Tr. 159).

This Court has consistently declined to review re-

cent decisions in the various circuits regarding the

propriety of a supplemental instruction to juries ex-

periencing difficulty in reaching a verdict. Although

several circuits, including the Second, have recently

determined, under their supervisory authority, that

the traditional Allen instruction (Allen v. United

States, 164 U.S. 492) should be modified or elimin-

ated in the future no court of appeals has held that

such a supplements! instruction is per se coercive or

constitutes reversible error.

2 See, e.g., United States V. Fioravanti, 412 F. 2d 407 (C.A.

8), certiorari denied sub nom. Panaccione Vv. United States,

396 U.S. 837; United States v. Brown, 411 F. 2d 930 (C.A.

7), certiorari denied, 396 U.S. 1017; also see United States V.

Thomas, 449 F. 2d 1177 (C.A. D.C.) (en banc). The instruc-

tions in this case follow those approved by the Second Cir-

7

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

AuGusT 1972.

cuit. See United States v. Barash, 412 F. 2d 26, certiorari

denied, 396 U.S. 832; United States v. Bowles, 428 F. 2d 592,

certiorari denied, 400 U.S. 928; United States v. Hynes, 424

F. 2d 754, certiorari denied, 399 U.S. 933; Meyers, supra.

VW ov. S. GOVERNMENT PRINTING OFFICE; 1972 474364 79