Petition for a Writ of Certiorari — Brown v. United States

: Supreme Court, U. $.

LIBRARY. FILED

SUPREME CouRT, U. 8.

AUG 1°7 1973

IN THE | wmennen nopax, 2e.c1erx

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. %3- 315

BONN BROWN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOEL M. FINKELSTEIN

JAMES L. RIDER

Suite 1105 Bender Building

1120 Connecticut Avenue, N.W.

Washington, D.C.

Counsel for Petitioner

Washington, D.C. @ CLB PUBLISHERS, INC. e (202) 393.0625

(i)

TABLE OF CONTENTS

Page

CPINION BBLOD | 5 6 SS ae Sc Soe hve oe Sew 1

RCT a a a EPR 2

QUESTIONS PRESENTED .............----0-eeeee 2

STATEMENT OF THE CASE:

A. The Proceedings Below ..........-------005: 2

De, -Giatennns OR ne on no wide van 40 000 ew bao* 3

REASONS FOR GRANTING THE WRIT:

I. The 1968 Indictment Was Not Properly Admis-

sable as Evidence of 2 Prior Similar Act; and Its

Admission Denied Petitioner a Fair Trial ........... ~

Il. The Indictment and Conviction Were Not

Admissible as Evidence Bearing on Petitioner’s

COIS © oko ao bbw Sian cee ear cccscease 11

Ill. Under the Circumstances of This Case Evidence

of Perry’s Prior Acquittal Should Have Been

pS RS AEE ie ene pes eee re oa 15

CO ko 8 vo we oe we eke os eee eS ap sess 18

APPENDIX

A. Judgment of the Court of Appeals ...........-. la

B. Portions of 1968 Indictment Read to Jury ....... lb

TABLE OF AUTHORITIES

Cases:

Campbell v. United States, 176 F.2d 45, 47 (D.C. Cir.

SE RA wv aah aw kes eb doe sade e ee aes we aeiee = _

Commonwealth v. Quaranta, 295 Pa. 264, 145 A. 89,

92 (Sup. Ct. Pa. 1928) ....---- eee reer eee eees 16-17

Fenwich v. United States, 252 F.2d 124, 126 (D.C.

CE CE sae cok bv cceh ewe eesdewe been Rae 14

ne ee rT

| (i)

Jackson v. State, 33 Tex. Cr. R. 281, 26S.W.194 ........ 16

~ Kowalchuck v. United States, 176 F.2d 873, 878 (6th

Cir, 1949) ov ccc ice eewnsences aes ae ree gy 9

State ex rel. Carson v. Wood, 175 S.E.2d 482 (W. Va.

FOTIA) ccc c ccc cress wecceenencen ese ss 13

State ex rel. Gillespie v. Wood, 175 S.E.2d 497 (W.

We BOTUY cok ccs ceewesesesevesececessece 13

United States v. Chase, 372 F.2d 453, 460 (4th Cir.

i} Se eae rer ras Ses es eae G

United States v. Mastrototaro, 455 F.2d 802 (4th.Cir.

19TZ) ic occa wees cowagertacsccceserseeeces 9,10

United States v. Sawyers, 423 F.2d 1335 (4th Cir.

ele aig PA OO Rt aap 12, 13

Treatise:

2 Wigmore, EVIDENCE, §302 p. 196 (3rd ed. 1940)...... 10

Miscellaneous:

UE a iG bs ack owen bo 0's ce th Keene eD 14

-

IN THE

SUPREME COURT OF THE UNITED. amecs

OCTOBER TERM, 1973

No. -

BONN BROWN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WKiT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner Bonn Brown respectfully prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fourth Circuit

entered in this proceeding on July 18, 1973.

OPINION BELOW

No opinion was rendered by either the Court of

Appeals or the District Court for the Western District of

Virginia.

2 .

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on July 18, 1973. This petition for

certiorari was filed within thirty (30) days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1) and Supreme Court Rule 22(2).

QUESTIONS PRESENTED

1. Whether an indictment, with nothing more, is

admissable as evidence of a prior similar act.

2. Whether an indictment and conviction, then on

appeal, are properly admissable as impeachment evidence

on the issue of credibility.

3. Whether the admission of the acquittal of one

alleged co-conspirator should be admitted in the trial of

another alleged co-conspirator; especially where a third

alleged co-conspirator is a witness for the government and

testifies to his plea of guilty, conviction and sentence.

STATEMENT OF THE CASE

A. The Proceedings Below

In March, 1971, the petitioner was indicted in the

United States District Court for the Southern District of

West Virginia for conspiracy to obstruct justice and to

bribe a public official in violation of 18 U.S.C. § §371,

201(b) and (c) and § 1503; of bribing a public official in

violation of 18 U.S.C. §201(b); and of obstructing justice

in violation of 18 U.S.C. §1503 for acts allegedly

committed in August, 1968. The matter was transferred

to the United States District Court for the Western

District of Virginia in Charlottesville and trial before the

Honorable Walter E. Hoffman, Chief Judge of the United

3

States District Court for the Eastern District of Virginia,

was held from September 18, 1972, through September

25, 1972, at the conclusion of which a jury found Mr.

Brown guilty on all counts. A Motion for Judgment of

Acquittal and/or a New Trial pursuant to Rules 29 and

33 of the Federal Rules of Criminal Procedure was timely

filed, and heard and denied by Judge Hoffman sitting,

with consent of all parties, in the United States District —

Court for the Eastern District of Virginia at. Norfolk,

Virginia on February 2, 1973. After denying appellant’s

motions, Mr. Brown was sentenced under the provisions

of 18 U.S.C. 4208(a)(2) to five years on each of the three

counts of the indictment, said sentences to run concur-

rently, and a $10,000.00 fine apportioned, $5,000.00 to

count 1 of the indictment and $5,000.00 to count 2 of

the indictment. Timely Notice of Appeal: was filed and

after briefs and argument, the United States Court of

Appeals for the Fourth Circuit affirmed appellant's

conviction on July 18, 1973.

B. Statement of Facts

In 1968, the petitioner, together with William Wallace

Barron, Burl A. Sawyers, Vincent J. Johnkowski, Alfred

W. Schroath and Truman E. Gore,’ was indicted for

conspiring to violate 18 U.S.C. § 1952. He was alleged to

have used interstate facilities to commit bribery in

violation of W. Va. Code Chapter 61, Article 5 § § 4 and

5. (Tr. 8). Following a trial before the Honorable J.

Robert Martin, Jr., and a jury, the petitioner was found

1 Gore- was severed due to the illness of his attorney and has not

yet been tried.

4:

guilty as charged. The remaining defendants, with the

exception of William W. Barron, were also found guilty.

CEI.

"The foreman of the 1968 jury was one Ralph E.

Buckalew (Tr. 223). According to the government’s

evidence, Buckalew received a bribe in the amount of

$25,000.00. through his wife, Alice Buckalew, for which

Buckalew, according to his testimony, agreed to use his

efforts as a juror to obtain an acquittal for, Barron or, if

acquittal was impossible, to hang the jury as to Barron.

(Tr. 223-224, 249, 253). On the second day of delibera-

tions, the jury found all the defendants guilty with the

exception of Barron (Tr. 349). As to Barron, the jury

voted 31-1 for conviction, Buckalew the lone dissenter.

Within several hours, Buckalew, however, persuaded the

jury to vote unanimously for Barron’s acquittal.

(Tr. 353-354).

The government offered evidence to show that a

portion of the bribe paid to Bucklalew came from the

petitioner, Bonn Brown, for the purpose of securing

Buckalew’s efforts to obtain Brown’s acquittal. The

principal government witness against the defendant Bonn

Brown was Barron, who, prior to Brown’s trial, pleaded

guilty to the indictment and received a sentence of twelve

years imprisonment. (Tr. 130-131).

Barron and Brown had been professional and social

friends since 1936. In 1963, during Barron’s term as

governor, Brown himself sought to secure the democratic

nomination for governor of West Virginia. He attempted

to enlist the aid and support of Barron. Barron, however,

refused to support Brown, and, instead, supported

Brown’s opponent. (Tr. 137-139, 656, 657).

In July 1968, a few weeks prior to trial, Ralph E.

Buckalew approached Mrs. Barron at a bingo game and

indicated that he would like to speak to Barron. A short

a nse

5

time therestter, Buckalew went to Barron’s apartment

and, according to Buckalew’s testimony, informed Barron

by means of a note, that he was called for jury duty at

the same time that Pane

(Tr. 230-231).

The trial commenced on August 12, 1968, in the

United States District Court for the Southern District of

West Virginia. Barron was represented by Robert G.

Perry, Esquire. Toward the end of the first week of trial,

Perry, so Barron testified, advised Barron. that he (Perry)

had contacted Buckalew, who was serving as foreman of

the jury. (Tr. 98-101).?

According to the government’s evidence, during the

course of the trial, Mrs. Barron and Mrs. Buckalew met

by prearrangement, on several occasions. (Tr. 101-102;

105-107). The negotiations concluded a few days before

the case was submitted to the jury for deliberations. The

agreement reached, according to Mr. Buckalew, was that

he was to receive $25,000.00 from Barron in exchange

for his efforts to secure Barron’s acquittal or, if an

acquittal was impossible, to hang the jury as to Barron.

According to Buckalew, the money paid by Mrs. Barron

to him through his wife was solely to secure Barron’s

acquittal. (Tr. 236, 242-243, 249, 262).

Barron testified that once the $25,000.00 bribe was

agreed upon, he borrowed $10,000.00 from a friend, and

| was offered the balance by his attorney, Robert G. Perry

| (Tr. 107-108).3 On August 26, 1968, two days after

?The jury was sequestered at the Daniel Boone Hotel (Tr. 100).

3On the examination by the Government and over the objection

of defense Counsel, Barron testified that he pleaded guilty to the

offenses charged in the indictment and was sentenced to a term of

twelve years (Tr. 129-131).

EE ——— es

6

Barron borrowed the above $10,000.00, Brown ap-

_ proached Barron, so Barron testified, and indicated to

Barron that he was aware that Buckalew had been

contacted. According to Barron, Brown requested that

Buckalew work on his behalf, also. Barron testified that

Brown informed him that he (Brown) could get

$10,000.00 through one Julius George, which, Brown

offered to contribute toward the $25,000.00 bribe.

(Tr. 117-118). Barron testified that, on the following

day, he discussed the matter with Perry and Perry

recommended that Brown be included (Tr. 122). Again,

according to Barron, Perry delivered $25,000.00 in cash

to Barron later the same day. Of the $25,000.00,

approximately $9,000.00 or $10,000.00 was bound in

wrappers from the National Bank of Commerce,

Charleston, West Virginia, dated August 27, 1968

(Tr. 119-121). On the same day, Mrs. Barron delivered

the $25,000.00 to Mrs. Buckalew (Tr. 121).

For the purpose of showing a prior similar act, the

Government toward the end of its case in chief intro-

duced and read portions of the 1968 indictment (App.

1b).

After introducing part of the defendant’s grand jury

testimony, the Government rested.

The defense relied upon the testimony of Alice

Buckalew, Dr. Benjamin I. Golden, Austin Doyle, Beulah

Nine, Robert G. Perry and Bonn Brown. Brown testified

on his own behalf. He denied contributing $10,000.00

for the $25,000.00 bribe for Buckalew (Tr. 697-699).

* According to Bette Shorr, a teller employed by the National

Bank of Commerce, she delivered to Julius George on August 27,

1968, $9,960.00 in cash bound in wrappers bearing the bank’s

name (Tr. 49-50, 52). And according to Julius George, he

borrowed the above sum to loan to Brown (Tr. 58-61).

7

After relating his background and his professional and

social relationship with Barron, Brown testified to the

events immediately preceeding the 1968 trial. The indict-

ment was returned February 14, 1968. Two weeks later,

Brown sought to retain Edward Bennett Williams. The

Williams’ firm was retained in March of 1968 at an agreed

fee of $50,000.00 plus expenses. (Tr. 658-660).

One of Brown’s co-defendants, Alfred W. Schroath,

had retained the firm of Steptoe & Johnson. Brown

testified that he and Schroath entered into an arrange-

ment whereby their total legal fees would be split 50-50.

Steptoe & Johnson was to defend Schroath for

$15,000.00. (Tr. 661-662).

Brown testified that he arrived in Charleston a few

days before trial unable to meet immediate expenses. He

stated that almost immediately upon his arrival, he asked

to borrow between $7,500.00 and $10,000.00 from

Julius George, a close friend, to cover the expenses of

trial. (Tr. 663-665). Julius George corroborated this testi-

mony. (Tr. 74-76). On August 27, 1968, Julius George

did receive $9,960.00 in cash from the National Bank of

Commerce, and did subsequently turn most of that

money over to Brown. Julius George could not recall

whether the money was given to Brown on August 27th

or a few days thereafter (Tr. 61-62).

Brown testified that after receiving the money from

George on August 29, 1968, he kept most of the money

with him until his return to Elkins following the trial.

Brown gave the money to his secretary who in turn

locked it in a safe place in his office where it remained

until September 13, 1968. (Tr. 586-587, 599-600,

667-668). On that day, Brown met with Schroath and

was advised by Schroath that Schroath was going to

Washington. Brown gave Schroath what was left of the

loan, $7,500.00, to deliver to Williams’ office. Schroath

represented that he would deliver a similar amount on his

own behalf. (Tr. 668-670). According to the accounting

records of Williams’ law firm, the following payments

were made by Brown: (1) May 1968 — $2,500.00 check;

(2) July 1968 — $2,500.00 check; (3) August

1968 — $7,500.00 check; (4) January 1969 — $2,500.00

check (Tr. 370-371).

One of the principal defense witnesses was Robert G.

Perry, Esquire, who represented Barron at the 1968 trial.

Perry testified that while he and Barron discussed all the

prospective jurors, he could not recall a specific conversa-

tion concerning Buckalew (Tr. 638, 639-640). Perry said

he never met or talked to Mrs. Buckalew until a few

minutes prior to his testifying, and he further stated that

he never met or talked to Mr. Buckalew. (Tr. 644). He

also testified that he never had a conversation of any

nature with Barron or Brown in reference to the bribing

of a juror during the 1968 trial (Tr. 647)5

Government called as a rebuttal witness Michael C.

Paterno, an accountant and custodian of the records of

Alfred Schroath who was deceased at the time of trial.

Paterno testified that the records of Schroath’s estate

reflected that on April 18, 1969, an entry notes a deposit

of $5,000.00 marked “loan, Bonn Brown,” and in that

same month, a check of $25,000.00, payable to Edward

Williams, was carried as $12,500.00 — legal and profes-

sional and $12,500.00-—‘“Bonn Brown, loan”

(Tr. 805-807).

Sena eR -

‘Perry was charged as a co-defendant and alleged to be a

co-conspirator. At the time he testified on Brown’s behalf, he had

been tried on the charges in the indictment and acquitted. The

Court ruled, however, that Perry’s acquittal was not admissible

(Tr. 18-19, 311-316).

9

REASONS FOR GRANTING THE WRIT

L.

THE 1968 INDICTMENT WAS NOT PROPERLY

ADMISSABLE AS EVIDENCE OF A PRIOR SIMI-

LAR ACT; AND ITS ADMISSION DENIED PETI-

TIONER A FAIR TRIAL.

The Government, over objection, was permitted to

read portions of the 1968 indictment to the jury (App.

1b). This was admitted as evidence of a prior similar

act to prove the defendant’s knowledge, motive. and

intent. (Tr. 446, 449).

The 1968 indictment, however, does not qualify as

evidence of a prior similar act. It is true, as the Court of

Appeals for the Fourth Circuit said in United States vy.

Chase, 372 F.2d 453, 460 (4th Cir. 1967), quoting

Kowalchuck v. United States, 176 F.2d 873 (6th Cir.

1949):

Where intent and knowledge are essential ele-

ments of the crime for which a defendant is being

tried, evidence of other transactions, even though

criminal in motive, is admissable if the transactions

are so connected with the offense charged that they

serve to show a general pattern and to prove the

necessary criminal intent or guilty knowledge.

See also United States v. Mastrototaro, 455 F.2d 802

(4th Cir. 1972). .

If evidence of the incident or circumstances which led

to the 1968 indictment was admissible against petitioner

as evidence of a prior similar act, it was admissible only in

the form of evidence of the act itself, and not the

pleading or accusation upon which Brown was brought to

trial. See e.g., United States v. Mastrototaro, 455 F.2d

802 (4th Cir. 1972) (testimony); United States v. Chase,

10

372 F.2d 453 (4th Cir. 1967) (acts and declarations);

United States v. Dutsch, 357 F.2d 331 (4th Cir. 1966)

(testimony).

In addition, the burden is on the party introducing

such evidence to establish that the prior similar act is

similar enough to the current charge to have sufficient

probative value to qualify its admissibility. United States

v. Mastrototaro, supra. There was no evidence—not even a

proffer—to show how, if at all, the incident or circum-

stances underlying the 1968 indictment were similar to

the present charge. In short, the Government never laid

the necessary predicate to qualify the 1968 indictment or

the circumstances underlying the indictment as relevant

or admissible evidence on the issue for which it was

admitted and on which the jury was instructed.

In any event, the reason evidence of prior similar acts

is admissible to prove criminal intent is as Professor

Wigmore explains (2 Wigmore, EVIDENCE, §302 p. 196

(3rd ed. 1940)):

The argument here is purely from the point of

view of the doctrine of chances—the instinctive

recognition of that logical process which eliminates

the element of innocent intent by multiplying

instances of the same result until it is perceived that

this element cannot explain them all.

Here, other than putting the Government to its proof,

Brown never disputed the issue of criminal intent.

According to the Government’s evidence, Brown gave

Barron $10,000.00 as a contribution toward a

$25,000.00 bribe paid to Buckalew. There was nothing

ambiguous about Barron’s testimony on this score. See

United States v. Dutsch, 357 F.2d 331 (4th Cir. 1966).

On the other hand, Brown denied ever giving Barron the

$10,000.00. In short, Brown did not acknowledge a

$10,000.00 payment to Barron for something other than

a bribe.

Here, the intent of the defendant was not put in issue;

either the juty believed that Brown gave Barron

$10,000.00 to bribe Buckalew or that Brown gave Barron

nothing. ;

Nor can the fact that it was the defense who first

introduced evidence of the conviction be used to nullify

the prejudice of the prosecutor’s act in bringing to the

attention of the jury the substantive crime upon which

Brown was convicted in the 1968 case.° Brown was on

trial for allegedly bribing a juror. No single piece of

evidence could have been more prejudicial to his defense

than for the jury to learn that the 1968 case involved a

charge of bribery. While it was necessary for petitioner to

bring out that he was convicted in the 1968 trial in an

attempt to demonstrate his innocence of partaking in the

scheme to bribe the jury foreman, trial defense counsel

carefully did not go beyond the fact of conviction.

(Tr. 201).

The indictment; and, hence, bringing to the attention

of the jury that the substance of the 1968 charge was

“bribery” served no legitimate prosecutorial purpose and

denied to petitioner a fair trial.

THE INDICTMENT AND CONVICTION WERE NOT

ADMISSABLE AS EVIDENCE BEARING ON PETI-

TIONER’S CREDIBILITY.

Following the introduction of a portion of the 1968

indictment into evidence by the Government and again at

the close of the case the Court instructed the jury that, in

© On cross examination of Barron, defense counsel elicited that

in the 1968 case petitioner had been convicted of the one count in

the indictment (Tr. 201).

12

addition to considering the indictment as proof of a prior

_ similar act, it could consider it as bearing on petitioner's

credibility. (Tr. 450, 860-861).

We do not think the 1968 indictment or conviction

was admissible to impeach Brown’s credibility. First, we

note that the 1968 indictment and conviction were

admitted in the Government’s case, and thus, were before

the jury before Brown testified. Brown therefore never

had the choice of not testifying in order to preclude the

Government from putting the 1968 indictment and

conviction before the jury. Second, even if Brown’s 1968

conviction was admissible for some purposes—i.e., to

show that Buckalew did not secure an acquittal for

Brown—it was not necessary that the jury be informed of

the specific charge which was the subject of the 1968

trial. We mention this because we do not think it can be

argued that petitioner waived his objection to the

admissibility of the 1968 indictment and the conviction

as defined by the indictment when he relied on the

conviction as a defense to the present charge or when he

took the stand and testified on his own behalf.

Brown’s 1968 conviction was not final at the time of

the present trial. The four defendants, the petitioner

among them, who were convicted in the 1968 trial

appealed their convictions to the Court of Appeals for

the Fourth Circuit. The convictions were affirmed on

March 23, 1970. United States v. Sawyers, 423 F.2d

1335 (4th Cir. 1970).

After the convictions were affirmed, a petition for

rehearing was filed, based on cases pending in the West

Virginia Supreme Court of Appeals in which the West

Virginia bribery statutes, W.Va. Code, Ch. 61, Art. 5,

Secs. 4 & 5 were being challenged. The Fourth Circuit on

May 1, 1970, remanded the case to the District Court

with directions to stay the convictions until the West

13

Virginia Supreme Court determined ‘the constitutionality

of the West Virginia bribery statutes.

On July 17, 1970, the Supreme Cut of Anpetin.of

West Virginia rendered its decisions in the cases which

had been the basis for the remand order. State ex rel.

Carson v. Wood, 175 S.E. 2d 482 (W.Va. 1970); State ex

rel. Gillespie v. Wood, 175 S.E.2d 497 (W.Va. 1970).

Those decisions upheld the constitutionality of the

bribery statutes, although limiting their application.

Following those decisions, the defendants moved the

District Court to vacate their convictions. Their motions

were heard and were overruled by Judge Martin. That |

ruling was appealed and that appeal was pending when,

on February 20, 1971, an indictment was returned in the

Southern District of West Virginia charging Barron, his

wife, and the jury foreman in the 1968 trial, Ralph E.

Buckalew, with crimes relating to jury bribery in the

1968 trial. As a result of that indictment, the appellants

in United States v. Sawyers, No. 12,872, moved the

Fourth Circuit for another remand to the District Court

for consideration of motions based upon the jury

tampering. On March 19, 1971, the Fourth Circuit again

remanded the case to the District Court.

Since the remand of March 19, 1971, the convicted

defendants in the 1968 case, Sawyers, Johnkoski and

petitioner,’ have filed motions to vacate their convic-

tions, or in the alternative to be granted a new trial.

Those motions are pending before Judge Martin.

With some limitations an accused who tesiifies may

ordinarily be impeached with prior convictions. There is a

split of authority, however, as to whether a conviction

which is then on appeal may be used for impeachment.

7By this time, the fourth convicted defendant, Alfred W.

Schroath, had died.

14

purposes. Most of the circuits as well as the States that

have considered the question have concluded that such a

conviction is admissible. The Court of Appeals for the

District of Columbia Circuit holds to the contrary. We

think this is the better view for the reasons expressed by

the Court in Fenwich v. United States, 252 F.2d 124,

126 (D.C. Cir. 1958) quoting from Campbell v. United

States, 176 F.2d 45, 47 (D.C. Cir. 1949):

{I]t seems wholly illogical and unfair to permit a

defendant to be interrogated about a previous

conviction from which an appeal is pending. If the

judgment of conviction is later reversed, the defend-

ant has suffered, unjustly and irreparably, the

prejudice, if any, caused by the disclosure of the

former conviction. We therefore hold that the

pendency of an appeal prevents the prosecution

from proving a previous conviction for impeachment

purposes; and that the District Court erred in

admitting evidence concerning Campbell’s convic-

tion when his appeal therefrom had not been

determined. [Emphasis Supplied.]

Even if Brown’s 1968 conviction was otherwise quali-

fied as admissible evidence, under the circumstances of

this case it should have been excluded. Grave concern has _

been expressed where—as was the case here—the prior

conviction comes dangerously close to the substance of

the crime for which the accused is standing trial. In

United States v. Hildreth, 387 F.2d 328, 329 (4th Cir.

1967), the Court wrote:

Prior criminal convictions for felonies or mis-

demeanors involving moral turpitude ordinarily con-

stitute material impeaching evidence. McCormick on

8 For a discussion of the various jurisdictions and their positions

see 16 ALR 3d 723.

15

Evidence, §43 p. 90. There are times, of course,

when the Court may impose limits on the cross-

examination of a witness, especially a defendant,

when there is reason to apprehend that the prejudi-

cial effect of the earlier convictions sought to be

adduced will outweigh their possible probative force

in impeaching credibility. This may be the case, for

example, when the prior conviction is remote in .

time, too near the substance of the alleged crime for

which the defendant is currently being tried, or

involved no element of mandacity or deceitfulness.

[Emphasis Supplied] . 3

At the very least, therefore, we think this was a case in

| which the prejudicial impact of relating the nature and

substance of petitioner’s 1968 conviction to the jury far

outweighed its probative value. If the jury had to be

informed that Brown suffered a 1968 conviction, it

should not have been informed of the exact nature and

substance of the charge. To have done so unnecessarily

prejudiced his opportunity to defend the present charge

free of inflammatory and extremely prejudicial matter.

i.

UNDER THE CIRCUMSTANCES OF THIS CASE

EVIDENCE OF PERRY’S PRIOR ACQUITTAL

SHOULD HAVE BEEN ADMITTED.

Barron’s attorney during the 1968 trial was one Robert

G. Perry, Esq. Perry was indicted as one of Brown’s

co-conspirators. According to the Government’s evidence

as related through the testimony of Barron, Perry was

instrumental in raising $15,000.00 toward the

$25,000.00 bribe given Buckalew. Prior to Brown’s trial,

Perry had been tried and acquitted of the above charge.

On the other hand, Barron had entered a plea and had

been sentenced to a term of twelve years. While Barron’s

mn

16

plea and sentence were admitted as evidence, Perry’s

acquittal was held inadmissible. We submit this was error

and denied petitioner a fair trial. Jackson v. State, 26

S.W. 194, (Tex. Cr. R. 1894).

In Commonwealth v. Quaranta, 295 Pa. 264, 145 A.

89, 92 (Sup.Ct.Pa. 1928), the Supreme Court of Pennsyl-

vania wrote:

The Commonwealth’s evidence tended to show

that the witnesses were accomplices. Standing alone,

this fact clearly revealed an intense interest by them

in the result of the trial of the defendant. Without

explanation, their complicity could be kept promi-

nently before the jury throughout the trial, impar-

ring, if not destroying, the value of their testimony.

“It bears against a witness’ credibility that he is an

accomplice in the crime charged. * * * When the

co-indictee testifies for the accused, his situation

here may also be considered as tempting him to

exonerate the other accused and thus help toward

his own freedom.” 2 Wigmore on Evidence, §967.

The fact of acquittal could be used to show want of

personal interest. It was a very material circum-

stance in defendant’s case. “If the credibility of a

witness is attached by evidence that he has been

charged with the commission of a crime, he may in

rebuttal prove that he has been acquitted of that

charge.” 28 R.C.L. 649 §233; Jackson v. State, 33

Tex. Cr.R. 281, 26 S.W. 194, 622, 47 Am. St. Rep.

30. The use of the evidence should be carefully

limited to this purpose by the trial judge, and its

connection with the case explained to the jury.

The manner in which the Government’s case was

presented made the fact of Perry’s trial and acquittal

particularly significant. As the jury had been informed or

as could be inferred from the evidence, Barron implicated

Perry and Brown in the bribery scheme in exchange for

17

the Government’s promise not to prosecute Barron’s

wife. The jury was entitled to know the extent, nature,

and ultimate result of Barron’s agreement with the

Government as it related to Perry, for Perry was not only

an important defense witness but he was also part of the

bargain, as was Brown, in freeing Barron’s wife. In

addition, the Government argued to the jury not to.

believe Perry “‘... in light of his situation.” (A. Tr. 16).’

No attempt was made to explain what “situation,”

leaving the clear implication that Perry was facing

prosecution and would, therefore, have a motive to lie.

This was not only misleading, but highly prejudicial to

petitioner.

Furthermore, Perry’s acquittal was certainly admissible

to show lack of bias or prejudice on his part. Common- —

wealth v. Quaranta, supra. This was particularly true since

the jury was informed of the status and outcome of the

charge against Barron. In short, during the Government’s .

examination. of Barron, the jury was permitted to know

that the charge against Barron had been disposed of, and

he was thus testifying free of any motive to obtain a

favorable disposition of a pending charge or a recom-

mendation for a light sentence. On the other hand, during

the defendant’s examination of Perry, the jury was not

permitted to know that Perry, too, was testifying free of

' any motive to obtain a favorable result of a pending

charge. In view of the above, we believe it was error to

preclude the defendant from putting Perry’s acquittal

' before the jury.

Closing arguments of counsel were separately transcribed and

numbered, and are, therefore, designated “A.Tr.”

Sse naan iene eee see

18

CONCLUSION

- For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOEL M. FINKELSTEIN

JAMES L. RIDER

Suite 1105 Bender Building

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Counsel for petitioner

la

APPENDIX A ~

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-1315

United States of America,

Appellee,

versus

Bonn Brown,

Appellant.

Appeal from the United States District Court

for the Western District of Virginia,

at Charlottesville.

On instruction from the Court and after its ccmsidera-

tion of the record and briefs, and after hearing the

argument at bar of counsel, judgment is hereby entered,

under Rule 36 of the Federal Rules of Appellate

Procedure, affirming the order on appeal in this case.

/s/ William K. Slate, Il

CLERK

FILED

JUL 18 1973

William K. Slate, II

Clerk

Ib

APPENDIX B

[Tr. 447-448] “United States District Court for the

Southern District of West Virginia, February, 1968

Session, Charleston, United States of America versus

William Wallace Barron, Burl A. Sawyers, Vincent J.

Johnkoski, Truman E. Gore, Bonn Brown and Alfred W.

Schroath, No. 685,” and sections of the United States

Code.

“The grand jury charges:

“1. From on or about January 16, 1961, and continu-

ously thereafter up to and including the date of this

indictment, in the Southern District of West Virginia, and

elsewhere, the defendants herein: William Wallace Barron;

Burl A. Sawyers; Vincent J. Johnkoski; Truman E. Gore;

Bonn Brown; and Alfred W. Schroath did knowingly and

wilfully combine, conspire, confederate and agree with

each other, and with divers persons whose names are

unknown to the grand jury, to commit certain offenses

against the United States in violation of Section 1952 of

Title 18, United States Code, in that they would travel in

interstate commerce, and that they would use and

wilfully cause others to use facilities in interstate com-

merce, including telephones and the mails, all with the

intent to distribute the proceeds, promote, manage,

establish, and carry on and facilitate the distribution of

the proceeds, promotion, management, establishment and

carrying on of an unlawful activity, said unlawful activity

being bribery in violation of Section 4 and 5, Article 5,

Chapter 61 of the Code of West Virginia; and that the

defendants would thereafter perform and wilfully cause

others to perform acts promoting, managing, establishing,

carrying on and distributing the proceeds of said unlaw--

fully activity and acts facilitating the promotion, manage-

ment, establishment, carrying on and distribution of the

proceeds of said unlawful activity.