Petition for Writ of Certiorari — Tucker v. United States

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In The

Supreme Court of the United States

October Term, 1973

CARL STUART STANLEY.

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

L. Paut ByRNE

Bremner, Byrne & Baber

Suite 1500

Seventh & Franklin Building

Richmond, Virginia 23219

ANDREW W. Woop

Wood and Street

P. O. Box 95

Richmond, Virginia 23201

Counsel for Petitioner

TABLE OF CONTENTS

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APPENDIX:

A~Per Curiam Opinion of the United States Circuit Court

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B-—|udgment of the United States Circuit Court of Ap-

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C—Judgment of the United States District Court —............... App. 3

D—Excerpts from Transcript of Proceedings from United

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States of America v. Carl Stuart Stanley (No. CR

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TABLE OF CITATIONS

‘ Cases

Fagundes \ United States, 340 F.2d 673 (1st Cir, 1965) ............ @

Fowle v. Ujted States, 410 F.2d 48 (9th Cir. 1969) oe. 6

Grunewald \ United States. 353 U.S. 391, 77 Sup. Ct. 963,

Sd Be ED cnet prececaoeiceerstneorscinestinapetbenntcmeseacte 4,5

Page

Miranda v. Arizona, 384+ U.S. 436, 86 Sup. Ct. 1602, 16 L.Ed.2d

PN POR ahs a aceieedeonnader cae e R ee Lag 6

United States v. Matos, 444 F.2d 1071 (7th Cir. 1971) ooo... 6

Constitutional Provision

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Statutory Provisions

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In The

Supreme Court of the United States

October Term, 1973

CARL STUART STANLEY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Carl Stuart Stanley, petitioner, prays that a Writ of

Certiorari be issued to review the judgment of the United

States Court of Appeals for the Fourth Circuit, entered

in this case on January 28, 1974.

OPINION BELOW

The United States Court of Appeals for the Fourth

Circuit rendered a Per Curiam opinion’ on January 28,

1974 ( No. 73-1312), a copy of which is found in the Ap-

pendix at App. 1.

1 The Court of Appeals rendered another opinion in No. 73-1312

on November 28, 1973, with reference to co-defendants, but the

Court elected to treat separately the appeal of Carl Stuart Stanley.

2

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was made and entered on January 28, 1974 (No.

73-1312), and a copy thereof is appended to this petition

in the Appendix at App. 2. The jurisdiction of this Court

is envohed under 28 U.S.C. § 1254(1).

QUESTION PRESENTED FOR REVIEW

Whether the prosecuting attorney's improper inquiry and

comment, before the jury, depicting the petitioner's silence

and his assertion of his Fifth Amendment privilege against

self-incrimination requires reversal ?

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved is the Fifth

Amendment to the United States C onstitution:

No person shall be held to answer for a capital. or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia. when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law: nor shall private property

be taken for public use, without just compensation. U.S.

CoNsT. AMEND. V.

STATEMENT

After a jury trial on October 24 and October 25. 1972,

in the United States District Court for the Eastern Dis-

trict of Virginia, the petitioner and four other defendants

were convicted of conspiring to violate the Interstate Trans-

3

portation of Stolen Motor Vehicles statute. 18 U.S.C.

S$ 2 and 2312. The petitioner was found guilty pursuant to

the Conspiracy statute. 18 U.S.C. $371. Stanley was

acquitted on five other counts in the indictment.

The indictment charged that Stanley's function in the

conspiracy consisted of the fraudulent duplication of auto-

mobile ignition keys belonging to stolen cars, so that the

latter could be driven from Richmond to Pennsylvania.

The Government's case against the petitioner focused on

the testimony of a co-conspirator, Willard Thomas Burkett,

III. The latter testified in District Court that on grand

jury day in May of 1972, he and Stanley had lunch together

and their conversation centered around the stolen auto-

mobiles. Burkett further testified that during this conversa-

tion, Stanley told him that he (Stanley) was attending

the grand jury hearing because “he supplied the keys.”

(.\pn. 3),

Stanley took the stand in his defense and under cross-

examination by the prosecuting attorney admitted having

lunch with Burkett but denied ever having made the above

statement. The prosecuting attorney then asked the petition-

er if he had discussed the case “with us at any great length”

(App. 3). In response the petitioner indicated that such

discussions were cut off when he learned that he was under

suspicion and requested to have a lawyer present. The

prosecuting attorney then responded: “You never made

any statement to... (App. 6). At this peint. counsel

objected to the prosecuting attorney's line of questioning

designed to suggest that Stanley remained silent and in-

voked his Fifth Amendment privilege. The objection was

overruled.

Subsequently the petitioner appealed to the United States

Court of Appeals for the Fourth Circuit seeking reversal

4

and a new ttrial. The Court, in a Per Curiam decision,

found no reversible error.

REASONS FOR GRANTING THE WRIT

It is abundantly clear that Stanley invoked his Fifth

Amendment right against self-incrimination during dis-

Cussions with the prosecuting attorney's office prior to the

trial. After the prosecuting attorney asked: “Did you sit

down and discuss this case with us at any great length,”

(App. 3). the petitioner was not allowed to finish his nega-

tive response. [tis obvious that the response would have been

that he refused to talk. The pri secuting attorney's queries

as to whether or not the petitioner was advised of his

rights (App. 6), and the Judge's explanation for over-

ruling counsel's objection (App. 6) further drive home

the point that Stanley invoked his Fifth Amendment priv-

ilege.

All of the above testimony and evidence was heard in the

presence of the jury. They could only conclude that Stanley

asserted his Fifth Amendment privilege against self-incrim-

ination and that his silence must mean that he was guilty.

The decision of the Court below is in conflict. with a

number of cases. The line of questioning developed by the

prosecuting attorney has long been held to be reversible

orror. The leading case on this point is Grunewald y. United

States, 353 U.S. 391, 77 Sup.Ct. 963, 1 L.Ed.2d 1344

(1957). As in the case at bar, the defendant in Grunewald

was indicted for conspiracy and took the stand in his own

defense. The Government was allowed to cross-examine the

defendant concerning his assertion of his Fifth Amendment

right before a grand jury. The Court stated:

But where such evidentiary matter has grave constitu-

tional overtones, as it does here. we feel justified in

5

exercising this Court's supervisory control to pass on

such a question. This is particularly so because in this

case the dangers of impermissible use of this evidence

far outweighed whatever advantage the Government

might have derived from it if properly used. If the

jury here followed the judge's instructions, namely,

that the plea ot the Fifth Amendment was relevant

only to credibility, then the weight to be given this

evidence was less than negligible, since. as we have out-

lined above, there was no true inconsistency involved:

it could therefore hardly have affected the Govern-

ment’s case seriously to exclude the matter completely.

On the other hand, the danger that the jury made im-

permissible use of the testimony by implicitly equating

the plea of the Fifth Amendment with guilt is, in light

of contemporary history, far from negligible. Weigh-

ing these factors, therefore, we feel that we should

draw upon our supervisory power over the administra-

tion of federal criminal justice in order to rule on this

matter. 353 U.S. at 423.

Furthermore, in his concurring opinion, Mr. Justice

Black, at page 425, stated that he could:

think of no special circumstances that would justify

use of a constitutional privilege to discredit or con-

vict a person who asserts it. This value of constitu-

tional privileges is largely destroyed if persons can be

penalized tor relying on them.

Similarly, in the present case, the prosecuting attorney

deliberately questioned Stanley about his prior discussion

with the United States Attorney's Office. His only objec-

tive was to instill in the jurors’ minds the idea that Stanley's

silence, his assertion of the Fifth Amendment privilege,

was tantamount to an admission of guilt. One can see that

the formula, so feared by the Court in Grunewald, that

equates the assertion of the Fitth Amendment right with

guilt, can be found in the case at bar.

6

In Miranda v. Arizona, 384 U.S, 436, 86 Sup. Ct. 1602,

16 L.Ed.2d 694 (1966), the Court considered as a matter

of constitutional law whether the prosecutor may use an

accused's exercise of his privilege against him at trial. The

Court stated :

In accord with our decision today, it is impermissible

to penalize an individual for exercising the Fifth

Amendment privilege when he is under police custodial

interrogation. The prosecution may not, therefore, use

at trial the fact that he stood mute or claimed his

privilege in the face of accusation. 384 U.S. at 468,

Note 37.

In Fagundes v. United States, 340 F.2d 673 (1st Cir.

1965). a defendant was cross-examined on his failure to

make a statement. The First Circuit stated:

When one takes the stand in his own defense he of

course puts his credibility as a witness in issue. Never-

theless we think it reversible error to permit evidence

of refusal to talk and of request for counsel on arrest

to be used for the purpose of impeachment. 340 F.2d

at 677.

Also, in Fowle v. United States, 410 F.2d 48 (9th Cir.

1969), a prosecuting attorney elicited on cross-examination

the fact that the defendant had not made a statement to ar-

resting agents. The Ninth Circuit reversed the conviction.

In United States v. Matos, 444 F.2d 1071 (7th Cir.

1971), a postal inspector testified that the defendant, having

been advised of his rights, “indicated that he did not desire

to make a statement.” The Trial Judge denied a motion

for mistrial and denied a motion to instruct the jury to

disregard the postal inspector’s statements. The Seventh

Circuit held that the defendant’s Fifth Amendment right

was violated by the postal inspector's evidence and the error

was compounded by the Trial Court's refusal to instruct

7

the jury. Similarly, the Trial Judge in the case at bar over-

ruled the defense counsel's objection to the prosecuting

attorney's: line of questioning. Thus, the Trial Court gave

tacit approval to this line of questioning; and, of course,

as a result of the ruling, there was no cautionary instruc-

tion.

From the prosecuting attorney's line of questioning, the

jury could only conclude that Stanley refused to discuss

the case, thus invoking his Fifth Amendment privilege.

The Trial Judge’s refusal to sustain the defendant's ob-

jection to this questioning permitted the jury to conclude

that Stanley had something to hide and that his silence

was an admission of guilt. Yet, the essence of the privilege

against self-incrimination is that the accused is permitted to

stand mute, clothed in the presumption of innocence. To

permit the exercise of that privilege to be used adversely

against the accused would reduce it to a nullity.

CONCLUSION

It is respectfully submitted that the Petition for a Writ

of Certiorari be granted.

Respectfully submitted,

L. Paut Byrne

Bremner, Byrne & Baber

Suite 1500

Seventh & Franklin Building

Richmond, Virginia 23219

ANDREW W. Woop

Wood and Street

P. O. Box 95

Richmond, Virginia 23201

Counsel for Petitioner

8

CERTIFICATE

I, L. Paul Byrne, one of the attorneys for Carl Stuart

Stanley, petitioner herein, and a member of the Bar of the

Supreme Court of the United States, hereby certify that

on the 27th day of February, 1974, I served copies of the

foregoing Petition for Certiorari to the Supreme Court

of the United States on the several parties as follows:

1. On the United States, by delivering a copy thereof

at the office of Rodney Sager. Esq., Assistant United States

Attorney for the Eastern District of Virginia, United

States Courthouse Building, Richmond, Virginia, and by

delivering a copy thereof at the office of the Solicitor Gen-

eral, Department of Justice, Washington, D. C.

L. Paut ByRNE

Of Counsel for Petitioner

APPENDIX

PER CURIAM OPINION

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-1312

United States of America.

Appellee,

Versus

Carl Stuart Stanley, Frederick Thomas Dailey, and

Charles Gilbert Wilkerson,

Appellants.

ppeal from the United States District Court for the

astern District of Virginia, at Richmond. Robert R.

Merhige, Jr., District Judge.

rgued January 9, 1974. Decided January 28, 1974

*tore Haynsworth, Chief Judge, and Winter and Widener,

Circuit Judges.

ndrew W. Wood (Wood and Street on brief) for Ap-

pellant Stanley; (Leonard A. Paris; White, Cabell. Paris

and Lowenstein on brief for Appellants Dailey and Wil-

kerson); Rodney Sager, Assistant United States At-

torney, ( Brian P. Gettings, United States Attorney, on

brief) for Appellee.

R CURIAM:

Upon consideration of the briefs and oral argument, we

d no reversible error.

A firmed.

Beene pujairyen

App. 2

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-1312

United States of America,

Appellee,

VS.

Carl Stuart Stanley.

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia.

This cause came on to be heard on the record trom the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court appealed from, in this cause, be, and the same

is hereby, affirmed.

Filed January 28, 1974

William K. Slate, II

Clerk

/s/ William K. Slate, IT

Clerk

App. 3

JUDGMENT

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

No. CR 122-72-R

United States of America

Vi

Carl Stuart Stanley

On this 11th day of December, 1972 came the attorney

for the government and the defendant appeared in person

and by counsel.

It is Adjudged that the defendant upon his plea of Not

Guilty and a verdict of Guilty has been convicted of the

offense of Conspiracy, in violation of 18 U.S.C., Section

371 as charged in Count 6 of the indictment and the court

having asked the defendant whether he has anything to say

why judgment should not be pronounced, and no sufficient

cause to the contrary being shown or appearing to the

Court,

It Is Adjudged that the defendant is guilty as charged

and convicted.

It Is Adjudged that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of Five (5)

Years, in an institution of a type and place to be designated

by the Attorney General or his duly authorized representa-

tive, or until sooner released in a manner provided by law,

on Count 6.

It Is Adjudged that the defendant shall become eligible

for parole at such time as the Parole Board may determine,

pursuant to 18 USC, Section 4208(a) (2).

a oe ns

Breer eat hater Cie er

App. +

It Is Ordered that the Clerk deliver a certified copy of

this judgment and commitment to the United States Marshal

or other qualified officer and that the copy serve as the

commitment of the defendant.

/s’ Robert R. Merhige, Jr.

United States District Judge.

W. Farley Powers, Jr.

Clerk

* * *

App. 5

EXCERPTS FROM THE TESTIMONY OF WILLARD THOMAS

BURKETT, III, CALLED AS A WITNESS BY THE

UNITED STATES

Direct Examination By Mr. Sager,

Assistant United States Attorney

Q. Now, in May of this year did you have occasion to be

summonsed toa grand jury here? A. Yes.

Q. All right. Did you see Mr. Stanley present in the

building? A. Yes.

Q. Did you gotolunch with him?- A. Yes.

Q. Did you have a conversation with him about these

stolen automobiles? A. We were talking about what we

were doing down there.

Q. What did he say to you, if anything? A. He told

me the reason he was down here. He supplied the keys.

EXCERPTS FROM THE TESTIMONY OF

CARL STUART STANLEY, THE DEFENDANT

Cross Examination By Mr. Sager,

Assistant United States Attorney

Q. Did you ever tell anybody in ag government you

didn’t know anything about this case? A. I told all the

government people come see me, I knew nothing about this

case.

Q. Now, Mr. Stanley, let me go over this again. Did you

sit down and discuss this case with us at any great length?

A. No, sir, not after you—

Q. All right. A. Not after you told me I was a

suspect. I told you I would prefer to have a lawyer present.

WING PE AIMLESS LOWED?

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App. 6

Q. That is correct, and you were advised of your rights.

A. Yes, sir.

Q. You never made any statement to—

Mr. Paris: Objection. If your Honor please, that is

absolutely improper.

The Court: What is improper ?

Mr. Paris: Absolutely improper. I don’t think it is proper

to argue this legal point in front of the jury.

The Court: Then objection is overruled.

Mr. Paris: You never heard my objection, Judge.

The Court: You don’t want to make it. If you have an

objection make it.

Mr. Paris: My objection is that it is improper for the

Government to advise a man of his rights that he doesn’t

have to say anything and then tell the jury he didn’t say

anything. By innuendo—

The Court: Objection is overruled. It is not only proper

for the Government to tell him what his rights are, it is

illegal for them to talk to him without so doing.

Next question.