Opposition Brief — Combs v. United States

Jo the Supreme Court of the Auited States

OCTOBER TERM, 1972

No. 72-1095

JAMES LEE STOCKWELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner alleges a denial of his constitutional rights

because the court of appeals, instead of reducing his sen-

tence outright, remanded the case for resentencing, and

because the trial court admitted into evidence the testi-

mony of the two co-conspirators who had pleaded guilty

but had not yet been sentenced.

After a second jury trial in the United States District

Court for the Central District of California,' petitioner was

convicted on five counts of having possessed and delivered

counterfeit Federal Reserve notes and having conspired

to do so, in violation of 18 U.S.C. 472, 473, and 371. He

received concurrent prison sentences of which the long-

est were seven years (Tr. 954-955).2 The court of appeals

'The first trial of petitioner and co-defendant Jan Benken ended

in a mistrial. Prior to the second trial, Benken pleaded guilty to one

count of the indictment.

“Tr.” refers to the trial transcript.

(1)

ORES HET, LOND PS OND

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affirmed the convictions but remanded for resentencing to

give the district judge an opportunity to reduce the sen-

tences if he had attached any weight to petitioner’s refus-

al to plead guilty (Pet. App. 2).

The evidence shows that Kenneth Jones, a co-conspi-

rator who testified at trial while awaiting sentence on a

state conviction, met with petitioner, Jan Benken, and one

“Whitey” Armstrong, who offered to use their influence

to “get [him] out of [his] case.” The agreed price was

Jones’s new Cadillac and a set of plates for printing

counterfeit $20 bills (Tr. 687-689). Jones turned over his

car and was not sentenced on his conviction. At the re-

quest of petitioner and Benken he also turned over the

plates to Armstrong (Tr. 690-695, 697). About a month

later, petitioner called Jones to say that a printer was

needed (Tr. 701). After petitioner, Benken, and Armstrong

demanded that he get the printing done, Jones enlisted

the help of Gerald Shaw. Together they purchased the

necessary equipment and printed a quantity of counter-

feit $20 bills, which were delivered to Armstrong (Tr.

703-705, 715-716). Shaw and Jones were arrested as a

result of their activities. Both were awaiting sentence at

the time of petitioner’s trial (Tr. 675, 720). .

Bobby Evans, Judith Guilmette, and David Gorwitz

were among the unindicted co-conspirators. According to

their testimony, each had discussions with petitioner relat-

ing to the passing of counterfeit bills. Subsequently, each

received counterfeit bills from petitioner and attempted

to pass them. All three were arrested. The charges against

Evans were dropped, but Guilmette and Gorwitz pleaded

guilty and prior to petitioner’s trial were sentenced to

terms of probation (Tr. 768-779, 785-792, 816-825).

1. It is undisputed that petitioner’s seven-year com-

bined sentence is well within the statutory maximum of

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fifty years’ imprisonment and a $30,000 fine for the var-

ious offenses of which he was convicted. Petitioner objects

because a sentence of three years was imposed upon co-

defendant Benken, who pleaded guilty, and because the

trial judge indicated that petitioner might receive a three-

year sentence if he were to plead guilty to a single count.

He finds no answer to this complaint in the fact that

the court of appeals remanded for resentencing.

In sentencing co-defendant Benken, the trial court noted

that he would have to serve at least five or six years

of three consecutive state sentences before being eligible

for parole (Tr. 587). A concurrent sentence of three years

was imposed on the federal charge. The court then ascer-

tained from the Assistant United States Attorney that

Benken and petitioner were equally involved in the coun-

terfeiting scheme (Tr. 589). He stated that, in the event

of a conviction, petitioner could expect a sentence of no

less than five years (Tr. 590). In response to a question

from counsel, the court ventured that his “offhand reac-

tion” would be to impose a three year sentence upon a

plea of guilty to one count (Tr. 591). Petitioner elected a

jury trial and was convicted on all five counts.

At the time petitioner was sentenced, the court con-

sidered a probation report which recommended a sub-

stantial prison term (Tr. 937-938), as well as petitioner’s

record, which included a recent conviction on nineteen

counts of mail fraud (Tr. 938-940, 943-947). The Assistant

United States Attorney pointed out also that the pro-

bation officer had been unable to obtain satisfactory in-

formation concerning the nature of petitioner’s current

employment (Tr. 949, 951). Determining that petitioner’s

record indicated no evidence that he had reformed, the

court sentenced him to seven years’ imprisonment (Tr.

953, 955).

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The decision in United States v. Wiley, 278 F. 2d 500

(C.A. 7), on which petitioner relies, is inapposite. There,

the defendant, who was only a minor participant in the

crime, received a sentence much greater than those im-

posed on more culpable co-defendants who pleaded guilty,

and was denied probation because of the judge’s policy

not to consider probation for one who stood trial. Here, in

contrast, petitioner was an equal participant in the scheme

and was convicted on five separate counts, while his

co-defendant was convicted on only one. This alone would

warrant a more severe sentence. In addition, however,

the court considered other factors, including petitioner's

prior record and unfavorable probation report, not avail-

able to him during the pre-conviction conference at which

he suggested his “off-hand” reaction as to possible sen-

tences. See United States v. Levine, 372 F. 2d 70 (C.A. 7),

certiorari denied, 388 U.S. 916. See also Gollaher vy.

United States, 419 F. 2d 520, 530 (C.A. 9), certiorari

denied, 396 U.S. 960. In any event, the question of the

proper sentence has been re-opened by the court of ap-

peals which has remanded to the district court for re-

sentencing under clear instructions precluding considera-

tion of petitioner’s determinition to stand on his right to

a jury trial.

In challenging the remedy fashioned by the court below,

petitioner asserts that his sentence should be reduced

by four years or, alternatively, that the case ought to be

remanded to a different judge for resentence. First, we

note that to remove four years from petitioner’s sentence

would result in the same sentence for conviction on five

counts that the trial court tentatively suggested for con-

viction on one count. We submit that this would con-

stitute undue interference with the discretion of the sen-

tencing court. Second, petitioner’s claim that the sentenc-

ing judge has become “personally involved” in the dis-

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position of this case is wholly without merit. The record

reveals no suggestion that the personal feelings of the trial

judge have clouded his exercise of discretion or that he

will prove unable on remand to resentence petitioner dis-

passionately.

2. Petitioner also contends that the government should

not have been permitted to introduce the testimony of

co-conspirators Shaw and Jones, who at the time of peti-

tioner’s trial were still awaiting sentence after several

postponements. In petitioner’s view, this practice induces

witnesses to perjure themselves in hopes of leniency.

Petitioner’s contention, however, has been raised a num-

ber of times in comparable cases and has been uniformly

rejected as bearing only on the weight of a witness’

testimony, not its admissibility. United States v. Insana,

423 F. 2d 1165, 1168 (C.A. 2), certiorari denied, 400 U.S.

841: United States v. Boswell, 372 F. 2d 781, 784 (C.A. 4), ;

certiorari denied sub nom. Hellams v. United States, 387 ©

U.S. 919; United States v. Vida, 370 F. 2d 759, 767 (C.A. ;

6), certiorari denied, 387 U.S. 910; Lemons v. United :

States, 339 F. 2d 761 (C.A. 9), certiorari denied, 380 U.S. :

985. See also Lisenba v. California, 314 U.S. 219, 227; |

Hoffa v. United States, 385 U.S. 293. Here, petitioner ©

raised no objection at trial to the admission of the tes-

timony of Shaw and Jones. But counsel was permitted ;

considerable latitude on cross-examination to develop pos- >

sible motives for testimony favorable to the government. ©

{The fact that Shaw and Jones were awaiting sentencing after

several postponements was specifically brought to the jury’s atten- 4

tion (Tr. 682-684, 722). Thus, this case is clearly distinguishable

from Napue v. Illinois, 360 U.S. 264, relied upon by petitioner, in 4

which evidence relating to the credibility of a witness was con- ’

cealed from the jury. It was precisely because of this concealment ;

that the trial was held to have been tainted. Here, in contrast, the

witnesses’ possible motive for cooperating with the prosecution was

fully explored before the jury. :

Of course, the relevant consideration for the jury is whether the

witness believes his testimony may result in a reduced sentence.

Whether or not he in fact does subsequently receive such a sentence

has no bearing on the credibility of his testimony.

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In addition, the court carefully instructed the jury in

regard to the weight of accomplice testimony and the fac-

tors affecting the credibility of witnesses (Tr. 897, 902-

903); petitioner offered no objection to the charge (Tr. 915-

917).

We note finally that the cases of three other co-con-

spirators—Evans, Guilmette and Gorwitz—were disposed of

prior to the time they testified against petitioner, and

their combined testimony was sufficient to support a con-

viction on all five counts, even disregarding the testimony

of Shaw and Jones.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

ErwWIN N. GRISWOLD,

Solicitor General.

Marcu i973.