Opposition Brief — Brown v. United States

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INDEX

Page

Opinion below .............--s-rssseeeeeesees ee

Jurisdiction .................. x. |

Questions presented ..........:..0-sesesseeeeees 43

Statement ...................ccesccccccccccccccccncnnsenncenssscsegeononoenes 2

A. The 1968 Government Contract Bribery

Case and its Aftermath ...............ccccsceseeeeseees 2

B. Trial of the Jury Bribery Case ...............0-0+++- 3

Argument eee ENS Ore eS ake ee 6

COMCHUSION ....20.-cccceeccccescccessocccccsccccsseseccneeeses 10

Cases:

Burt v. United States, 139 F. 2d 73,

certiorari denied, 321 U.S. 799 .............ececssseeee 10

Campbell v. United States, 176 F. 2d 45 ............ 8

Commonwealth v. Quaranta, 295 Pa. 264,

SOG 0 OD cnnencescrsesmitinncnsimmnnaaanaan 10

Fenwick v. United States, 252 F. 2d 124 ............ =

State ex rel. Carson v. Wood, 175 S. E.

DO GNF ........ <ienmennstsiene 3

State ex rel. Gillespie v. Wood, 175

8 8 Eee 3

United States v. Escobedo, 430 F. 2d 14,

certiorari denied, 402 U.S. 951 .............ceeeee00 7

United States v. Pauldino, 443 F. 2d 1108,

certiorari denied, sub nom. Bridwell v.

United States, 404 U.S. 882 ..............cceceeeeeeeees 8

United States v. Sawyers, 423 F. 2d 1335 ............ 2,8

Statutes and rule:

We ROE” 2 _. ._...sisnunesineneienininianeeannn 2

BB TI, FIND ccccccccscceresseeeceenentnnnenmnans 2

1B U.S.C. 371 ............ccccccccccrcceerccccesssscscccscossnencoes 2

SRA Ba yO, UGS is asi csiccosecennsonsdbeesesvonaee

18 U.S.C. 1952 “a wa

West Virginia Code, c. 61, Art. 5, Sections

4and5 ..

eeceveceseoes

Miscellaneous:

119 Cong. Rec. H5457 (daily ed. June

26, 1973)

Proposed Rules of Evidence for United

States Courts and Magistrates, Rule

In the Supreme Court of the Anited States

OcToBER TERM, 1973

No. 73-315

BONN BROWN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

No opinion was rendered by either the district court

or the court of appeals.

JURISDICTION

The judgment of the court of appeals was entered on

July 18, 1973. The petition for a writ of certiorari was

filed on August 17, 1973. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the admission into evidence in petition-

er’s 1972 trial for bribery of his 1968 indictment and con-

viction for bribery constituted prejudicial error.

2. Whether the prior acquittal of an alleged co-conspira-

tor on the later jury bribery charges was properly excluded

from evidence.

(1)

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2

- After a jury trial in the United States District Court for

the Western District of Virginia, petitioner was convicted

on three counts of obstruction of justice and bribery of a

public official (a juror) in violation of 18 U.S.C. 2, 201(b),

371, and 1503. He was sentenced to five years’ imprison-

ment on each of the three counts, the terms to run con-

currently. He was fined $5,000 on each of the first two

counts. The court of appeals summarily affirmed (Pet.

App. A).

A. The 1968 Government Contract Bribery Case and its

Aftermath

In 1968, petitioner, together with former governor of

West Virginia W. Wallace Barron, Burl Sawyers, Vincent

Johnkoski, Alfred Schroath, and Truman Gore, was in-

dicted in the Southern District of West Virginia for con-

spiracy to violate 18 U.S.C. 371 and 1952. Petitioner was

charged with having used interstate facilities to commit

bribery involving kickbacks in the award of contracts with

the State of West Virginia, in violation of the West Virginia

bribery statutes, specifically West Virginia Code, c.

61, Art. 5, Sections 4 and 5 (Tr. 8).! After a jury trial,

iti and three defendants were found guilty as

charged. Ex-Governor Barron was acquitted (Tr. 339).

Petitioner was sentenced to a four-year term of im-

i and fined $10,000. The court of appeals

affirmed. United States v. Sawyers, 423 F. 2d 1335

(C.A. 4).

Tr.” designates the transcript of the 1972 trial, a copy of which

is being lodged with the Clerk of this Court. The closing arguments

are bound and paginated separately, and are therefore cited as “C.A.”

On February 20, 1971, an i

in the Southern District of West Vu

Governor Barron, his wife Opal Bar

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Buckalew, the jury foreman in

bribery of a juror during the course

By superseding indictment petitioner

| Perry were also named in this charge.

of that indictment, petitioner and other

requested the court of appeals to remand the |

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based upon the allegations of jury tam

March 19, 1971, the court of appeals again remanded

the case to the district court. Petitioner and the other

defendants then filed motions to vacate their convictions,

or in the alternative for a new trial. On August 30,

1973, subsequent to the court of appeals’ decision in the

1971 jury bribery case involved here (Pet. App. A), the

district court heard the defendants’ motions but, on the

suggestion of petitioner’s counsel, has deferred ruling on

petitioner’s motion pending the Court’s action on the

present petition for a writ of certiorari.’

B. Trial of the Jury Bribery Case

a then-pending state court challenge to the constitutionality of the

state bribery statute. Motions for a new trial were denied after the

state supreme court upheld the constitutionality of the bribery statutes,

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

Gillespie v. Wood, 175 S.E. 2d 497 (W. Va.), and petitioner and other

defendants again appealed.

3Although no orders have yet been entered, the district judge has

said he will grant new trials to two other defendants. —

4

1972.4 Ex-Governor Barron testified that he had arranged

with his attorney, Robert Perry, a codefendant who had

previously been acquitted on this charge, to have a $25,

000 bribe given to juror Buckalew in return for a verdict

of acquittal, or at the very least a hung jury, in the 1968

case (Tr. 100-107). Barron was able to raise $15,000

through Perry (Tr. 107-108). He raised the balance

through the Citizens National Bank in Weirton, West

Virginia, on August 22, 1968, through a loan that was not

to be reflected on the books of that bank (Tr. 108).

Barron stated that on August 26, 1968, he first had a

discussion with petitioner concerning the jury bribe (Tr.

116-118). At that time, Barron testified, petitioner told

Barron that he knew “Buckalew had been reached and

that he wanted to be a part of that transaction and he was

willing to put $10,000 into that transaction” ( . r. 118, 200).

Petitioner advised Barron that his source for the $10,000

was one Julius George, who had a cashier’s check for

$10,000, and that

Mr. Julius George could get this cashier’s check

cashed and nobody would be able to find out about it,

and he would give this money to Mr. Brown who,

in turn, would put it in and make it a part of the

twenty-five thousand [Tr.118).

Barron and petitioner also discussed whether or not

the payment of the $25,000 bribe would result in an acquit-

tal or a hung jury (Tr. 119). At that time Barron told peti-

tioner that the most they could expect would be a hung

jury (Tr. 119). .

4On February 20, 1971, the day the first indictment was returned,

Buckalew pleaded guilty and was immediately sentenced to terms of

i for five and twelve years, the terms to run concurrent-

ly. On March 29, 1971,.W. Wallace Barron pleaded guilty to the

charges made against him for jury bribery; he was subsequently sent-

enced to a term of imprisonment for twelve years and a fine of $50,000.

5

On August 27, 1968, Julius George testified that he bor-

rowed $9,960, by cashier’s check, from the National Bank

of Commerce in Charleston, West Virginia (Tr. 48-49,

60-61). After the check was cashed, the money was wrap-

ped in groups of $1,000 and bound with paper straps con-

taining a National Bank of Commerce stamp, the bank

where the check had been negotiated (Tr. 52).

was borrowed from the bank (Tr. 61-62).

On the evening of August 27, 1968, Barron testified,

Perry delivered $25,000 in cash to Barron (Tr. 119-120).

The money was subsequently delivered to the jury foreman

(Tr. 121-122, 223). Upon receiving the cash from Perry,

Barron noticed that part of it was wrapped with paper

wrappers and part with rubber bands (Tr. 120). Barron

stated that approximately $9,000 or $10,000 was wrapped

“like if you went to the bank to get a big check cashed and

they would give you the cash. It had the wrappers of the

bank around the money”.(Tr. 120). These wrappers had

“National Bank of Commerce, Charleston, West Virginia”

on them ard were stamped August 27, 1968 (Tr. 120-

121).

on the morning of August 27, 1

knowledge of the bribery scheme. (Tr. 122). Barron stated

Perry (Tr. . 122). According to Barron, Perry then

advised Barron

ser to have him on the transaction, since he was aware

of the fact that Mr. Buckalew had been reached [Tr.

122}.

On the morning of August 28, 1968, petitioner was told

had

ever, he was never told that he was to work for the acquit-

tal of anyone other than Barron (Tr. 238, 249, 261-262).

tioner (Tr. 644-647).

ARGUMENT

1. Petitioner contends that his indictment and conviction

in the 1968 bribery case were improperly admitted into

7

case was first: mentioned by petitioner's counsel during

his cross-examination of x-Governor Barron, during which.

Q. And then it is your testimony, is it not, sir, that

A. Yes, sir. Jeg a pi

Q. And Mr. Brown was found guilty on the one

count in the indictment, was he not?

A. That is true.

At the beginning of the trial the goverament told the

ies

"

conviction of petitioner into evidence as proof of a prior

v. Escobedo, 430 F. 2d 14, 18-19(C.A. 7), certiorari denied,

> Petitioner contends that the 1968 indictment and con-

viction were improperly admitted as evidence of @ prior

similar act (Pet. 9-11). After petitioner's counsel had cross

ecamined ex-Governor Barron with respect to his 1968

ittal and petitioner's conviction for taking a bribe

demonstrate, inter alia, scheme, design, or intent, United

States v. Pauldino, 443 F. 2d 1108, 1113(C.A. 10), certior-

ari denied sub nom. Bridwell v. United States, 404 U.S. 882.

Tule 60%e) of the Proposed Rules of Evidence for United

Although Congress is the rules before permitting

aie igo into effect, Rule 60%e) is retained in its cotuny

in a draft prepared by the i on Criminal Justice

Committee on the J House of Representatives. 119 Cong.

I want you to know that that [sic]

prior conviction cannot be considered

: -

the crime of conspiring to bribe the juror Buckalew

[Tr. 449-450]. ents

Sissiler conti , ons were given by the jud

in his final charge to the jury (Tr. 876-878). Once the con-

viction was put in evidence by petitioner himself, it re-

mained for the trial judge to determine what, if any, limi-

15-17). This contention is without substance since Perry's

i had nothing to do with petitioner's guilt or inno-

10

cence (Tr. 18-19, 312-313); see Burt v. United States,

139 F. 2d 73, 76 (C.A. 5), certiorari denied, 321 U.S. 799.

the acquittals into evidence, stating that such evidence

was not admissible on behalf of defendant as evidence

tending to establish his innocence.‘

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Rosert H. Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

Jerome M. FEIT,

LauREN S. KAHN,

Attorneys.

Octoser 1973.

¢ The claim that the government's argument to the jury implied that

follows:

I hardly expect Mr. Perry would come in here and readily

admit to you that he bribed a juror in his capacity as attorney

for Governor Barron in the 1968 case. 1 don’t think that’s

going to be the thing he is going to do.

So I think you can bear in mind—you can take his testimony

and weigh it in light of his situation as regards to this entire

circumstances (C.A. 64]. .

Petitioner did not object to these remarks at the time they were made

nor seek to have them stricken. Moreover, taken in context, the remarks

refer to Perry’s status as attorney, and contain no implication that

Perry was facing prosecution. :