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

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Supreme Court of the United States

OCTOBER TERM, 1973

no. ¢€3- 1704

QUIMET J. PETERSEN,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

LOUIS R. KOERNER, JR.

KOERNER & BABST

1111 Poydras Street

New Orleans, La. 70112

581-9569

Counsel for Petitioner

May 13, 1974

: PAGE NO.

Opinion below------ ec eee 1

Jurisdiction-------- -------------- 1

Questions presented--------------- 2

Statutory provisions involved----- 2

Statement of the case------------- 3

Reasons for granting the writ

1. The decision below conflicts

with decisions of the United

States Supreme Court and

other courts of‘appeal as to

the proper interpretation of

the fourth amendment to the

Constitution of the United

States---------------------

2. Failure of the United States

to disclose evidence in its

possession favorable to the

petitioner is reversible

error and justifies the grant

of certiorari to review the

judgment below-------------

3. The decision below conflicts

with the decisions of other

courts of appeals with res-

pect to whether the prosecu-

tor's verbal improprieties

and statements were suffici-

ently prejudiciai to require

reversal----~---~-----------

INDEX (Page 2)

PAGE NO.

4. The totality of the circum-

stances surrounding this |

case constitute a denial of.

a fair trial and due process

of law in light of the

decisions of this court and

other United States Court

of Appeals-------------------- 62

Conclusion---------------- == --------- 80. -

Appendix (Opinion and Judgment of

Court of Appeals and Denial of

Rehear ing------------------------ 81

Te ST A RAT, ERR LAE ERATE EPS NRO AN RTP aa

CITATIONS

PAGE NO.

CASES:

Aldridge v. United States,

283 U.S. 308-------------------- 68

Bennette v. Hader, 337 No. 977,

87 SW. 2d 413 (1935)----------- 79

Black v. Ohio, 379 U.S. 89

(1964) -------------- - -- = ------- 17

Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194 L.Ed 2d 215

(1963 ) ------------------------- aosae

Brinegar v. United States, 338

U.S. 160 (1949) ---------------- 17

Brown v. United States, 338 F. 2d _

543 (D.C. Cir., 1965) ---------- 6

Carroll v. United States, 267

U.S. 132 (1925) ---------------- 2

Chambers v. Maroney, 399 U.S. 42,

90 S.Ct. 1975 (1970) ----------- 16

Chambers v. Mississippi, 93 S.Ct.

1038 (1973) -------------------- 78

Chimel v. California, 395 U.S. 752,

89 S.Ct. 2034 (1969) ----------- 2

City Transportation Company v.

Sission, 365 S.W. 2d 216 (Tex.,

Civ. App. 1968) ---------------- 68

Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, (1971)- 16

wilh Beers. FRAT RR Ah PREIS, arco VAR NE ORE SR IEE SIT TE TOPLINE RES IR TE I LCT LR

CITATIONS (Page 2)

PAGE NO.

Corley v. United States, 365 F.2d

884 (D.C. Cir. 1966)------------

Dunn v. United States, 307 F.2d

883 (5th Cir. 1962)-------------

Giglio v. United States, 405 U.S.

150, 92 S.Ct. 763 (1972)--------

Giles v. State of Maryland, 386

U.S. 66 (1967) ------------------

Giordenello v. United States,

357 U.S. 480 (1958)-------------

Government of Virgin Isles v.

Turner, 409 F.2c 102, 104

(3d Cir. 1968) ------------------

Hale v. United States, 1410 F.2d

147 (5th Cir. 1969) -------------

Hall v. United States, 419 F.2d

582 (5th Cir. 1969)-------------

Harris v. United States, 402 F.2d

656 (D.C. Cir. 1968) ------------

Henderson v. United States, 425

F.2d 134 (5th Cir. 1970)--------

Hull v. United States, 324 F.2d

817 (2d Cir. 1963)--------------

Jackson v. Commonwealth, 323 S.W.

2d 874 (Ky. App. 1959)----------

Jones v. United States, 328 F.2d

EON 2) ucctne: RRS tera RiCR RE BIE RE eee er etna

CITATIONS (Page 3)

Lambrecht v. Schreyer, 129 Minn.

271, 152 NW 645 (1965) -----------

Landry v. United States, 283 F.2d

303-------------------------------

Leonard v. United States, 277 F.2d

834 (9th Cir. 1960)--------------

Levin v. Clark, 408 F. 2d 117 (D.C.

Cir. 1967)-----------------------

Lewis v. Cardwell, 476 F.2d 467

(6th Cir. 1973) cert. granted

94 S.Ct. 567 (Dec. 3,1973)-------

Miller v. Pate, 386 U.S. 1, 87 S.Ct.

785, 17 L.Ed. 2d 690 (1967)------

Montoya v. United States, 402 F.2d

847 (5th Cir. 1968)--------------

Napue v. Illinois, 360 U.S. 264,

79 S.Ct. 1173, (1959) L.Ed.

2d 1017--------------------------

People v. Butcher, 79 Cal. Rptr.

618 (Cal. Appl. 1969) ------------

Petersen v. United States, 344 F.2d

419 (5th Cir. 1965)--------------

Pyle v. State of Kansas, 317 U.S. 213

(1942 ) ---------------------------

Reeves v. Warden, Maryland Peniten-

tion, 346 F.2d 915 (4th Cir.

1965 ) --- 9-99

PAGE NO.

SO ee ee

CITATIONS (Page 4)

Reichert v. United States,

359 F.2d 278 (D.C. Cir. 1966)--

Roberts v. United States, 322

F.2d 892 (4th Cir. 1964)-------

Sand Soon Sur v. United States,

167 F.2d 431 (9th Cir. 1945)---

Scott v. United States, 263 F. 2d

398 (5th Cir. 1959)------------

Sellers v. United States, 271 F.

2d 475 (D.c. Cir. 1959)--------

Smith v. United States, 312 F. 2d

867 (D.C. Cir. 1962)-----------

South v. United States, 412 F. 2d

697 (5th Cir. 1970)------------

Stirone v. United States, 341

F.2d 253 (3d Cir. 1965)--------

fykés v. Commonwealth of Virginia,

364 F.2d 314 (4th Cir. 1966)---

Ungar v. Sarafite, 376 U.S. 575

(1964) -------------------------

United States v. Baker, 418 F.2d

851 (6th Cir. 1969), cert.

denied, 397 U.S. 1015 (1970)---

United States v. Baum, 482 F.2d

1325 (2d Cir. 1973)------------

United States v. Cyzewski, 484 F.

2d 509 (Sth Cir. 1973)---------

PAGE NO.

CITATIONS (Page 5)

United States v. Echeles, 352 F.

2d 892 (7th Cir.1965) ----------

United States v. Edmonde, 63 F.

Supp. 968 (D.C.D.C. 1946) ------

United States v. Frick, 490 F.2d

666 (5th Cir. 1973)------------

United States v. Hibler, 463 F.2d

455 (9th Cir. 1972)------------

United States v. Kahaner, 203

F. Supp. 78 (S.D.N.Y. 1962)----

United States v. Lamerson,

No. 71-2353 (5th Cir. 1972)----

United States v. Marino, 421 F.2d

640 (34 Cir. 1970)----—..........

United States v. McIntire, F.2d

No. 72-1216, 5th Cir., June 23,

United States v. Mele, 462 F.2d

‘8 6 Cis. 19)

United States v. Millican, 414 F.

2d 811 (5th Cir. 1969)---------

United States v. Ott, 14 Crl.2257

(7th Cir. 1973)----------------

United States v. Ploeger, 428 F.2d

1204 (6th Cir. 1970)-----------

PAGE NO.

Se ans

CITATIONS (Page 6)

PAGE NO.

United States v. Polisi, 416 F.2d

573 (2d, Cir. 1969) ------------ 25

United States v. Porter, 432 F.2d

548 (9th Cir. 1970)------------ 59

United States v. Schmidt, 376 F.2d

751 (4th Cir. 1967)------------ ~76,77,78

United States v. Shvuford, 454 Y

F. 2d 772 (4th Cir. 1971)------ 64

United States v. Simmons, 414 F.2d ¥

800 (9th Cir. 1969) ------------ 57,60

United States v. Soriano, 482 F.2d :

469 (5th Cir. 1973). reh.

granted----------------------- 20

United States v. Stromberg, 179 F. ;

Supp. 278 (S.D.N.Y. 1959)------ 76~

United States v. Wiley, 278 F.2d

500 (7th Cir, 1960) ------------ 76 ~

Vick v. United States, 216 F.2d

228 (Sth Cir. 1954) ------------ 74

Withrow v. United States, 420 F.

2d 1220 (5th Cir. 1969)-------- 76

MISCELLANEOUS:

Moore, Federal Practice and Pro-

cedure, Vol. 8, Sec. 24.03

Pp. 24-32, 33------------------- 67

Wright, Federal Procedure, Vol.2,

Rule 24, Sec. 381 p. 9n 19---- 24

TE PEE LS PES Fg I Ne I Ls

Re Sa eee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

QUIMET J. PETERSEN, Petitioner

versus

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Quimet J. Petersen respectfully

prays that a writ of certiorari issue to re-

view the judgment and opinion of the United

States Court of Appeals for the Fifth Cir-

cuit entered in this proceeding on December

5. 1973.

OPINION BELOW

The opinion of the Court of Appeals, re-

ported at 490 F. 2d 666 (5th Cir. 1973), Re-

hearing and Rehearing En Banc denied March

15, 1974, appears in the Appendix hereto.

No opinion was rendered by the District Court

for the Eastern District of Louisiana.

JURISDICTION

The judgment of the Court of Appeals for

the Fifth Circuit was entered on December 5,

1973. A timely petition for rehearing en

FE EBITD BITTE ie RII NTI

i in g

banc was denied on March 15, 1974. An order

was granted by the Court of Appeals staying

the mandate of the Court pending disposition

of a Motion for new trial in the District

Court. The Court's jurisdiction is invoked

under 28 U.S.C. Sec. 1254(1).

QUESTIONS PRESENTED

1. Whether a warrantless search and seiz-

ure conducted in the absence of "exigent cir-

cumstances" is justified under the parameters

of Chimel v. California, 395 U.S. 752 (1969)

or within the guidelines laid down in Carroll

v. United States, 267 U.S.132 (1925) for

cases involving automobiles. ,

2. Whether the Government of the United

States may fail to disclose evidence in its

possession favorable to the accused.

3. Whether the prosecutor's statements

were sufficiently prejudicial to require re-

versal when viewed in light of the decisions

of the Fifth Circuit and other United States

Courts of Appeals.

4. Whether the seriatum treatment by the

Fifth Circuit Court of Appeals, of the trial

judge's errors amount to a denial of due >ro-

cess of law when viewed in their totality.

STATUTORY PROVISIONS INVOLVED

AMENDMENT IV

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly

IEE LOL NE ALIN MT DENT MIMS ANAT NEL BNL fe RP rae LAR ay EAP RARER AD

describing the place to be searched, and the

persons or things to be seized.

AMENDMENT XIV

Section 1. All persons born or naturali-

zed in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due pro-

cess of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

Robert Lee Frick and Quimet John Petersen,

petition were convicted on five counts under

18 U.S.C.A. Sec. 2, 371, 1341 and 1343 of

conspiring to defraud and defrauding certain

persons through an alleged sham loan broker-

age business by using the mails and inter-

state telephonic communications.

The factual basis for the indictment arose

out of the following facts and circumstances.

Robert L. Frick (hereinafter Frick) over a

period of weeks in April, 1971, met on several

occasions with Frank Crawley, III, the com-

plaining witness.

After discussing a loan and completing the

formal application with Frick, Crawley ad-

-vanced earnest money to Frick. (Tr. 43, 46,

47, 51, 60) Crawley testified, and it is un-

disputed that he had not met Petersen at

that time. (Tr. 56).

jeer Bee: VOR LEE DT ME TIT TLL PINT PLL N LE CLE NREL UI

SALE VERAR TR FET YP TE

It was not until May 18, 1971 that pe-

titioner met Crawley who had come to New

Orleans to discuss the loan with Frick. While

in New Orleans, Frick advanced the loan com-

‘mittment from Tangible Risk Insurance Company,

Ltd. (Tr. 74), at which time Crawley pre-

sented to Frick a check (G-9) and some extra

cash. (G-11). Petersen was not even present

and received nothing. (Tr. 75).

At a later date Frick directed Crawley to

mail ,a $1,000.00. fee to Petersen (Tr. 100).

On May 29, 1971 the money was wired to Peter-

sen only because Frick was to be out of town.

(Tr. 100-101) The loan committment never

came through.

In:all of the above transactions Petersen.

played no part. Crawley's testimony re-

vealed that he thought that only Frick was

involved. (Tr. 117, 159-169)

All money obtained from Crawley was paid

directly to Frick and was spent by him alone.

Only against Frick, did Cralwy have charges

' filed. (Tr. 117) It was obvious that Frick

was completely involved, and Petersen was

not really involved at all. (Tr. 164)

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THE UNITED STATES SUPREME

COURT AND OTHER COURTS OF APPEAL AS

TO THE PROPER INTERPRETATION OF THE

FOURTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES.

It is respectfully submitted that the

decision and opinion of the Court of Appeals

for the Fifth Circuit deviated from the

proper interpretation of the Fourth Amendment

LEON TANREY LOOP RITES MEENA LCR TITSIIRE AL OF LE IH Hey YN ETN INYO PNY GD NRRL Sage PN pie eh RNERE ROR APY AREY

(3)

(4)

(5)

following particulars:

Petitioner Petersen has standing to

contest the search and seizure of

the automobile and briefcase.

There were no "exigent circumstances"

in the present case such as to justi-

fy a warrantless search incident to

an arrest.

The search of the briefcase cannot

be justified by the “plain view"

exception to the Fourth Amendment

requirement that a warrant be obtained.

The search of the automobile cannot

be justified because there was

nothing inadvertant about the search-

ing officer coming onto the object

seized, and there were no exigent

circumstances.

The search and subsequent seizure

of the contents of the briefcase

exceeded the permissible scope of

a legal search.

(1)

Petitioner Petersen was demonstrated to

have standing to contest the illegality of

the search and seizure in the District Court.

Testimony on the trial of this matter and

at the evidentiary hearing in the District

Court on April 19, 22, and 23, 1974 disclosed

the real and substantial proprietary interest

of Mr. Petersen both in the briefcase, a

portion of its contents, and in the car from

which the briefcase was illegally seized.

B ves,

)

Py ae een he eye Oe We

we eae

The vehicle was owned by Rothchild Mortgage

Investors, a Louisiana corporation in which

Petersen was an officer and owner. The

briefcase in fact belonged to Petersen, who

had merely loaned it to Frick for some mutual

business unrelated to matters charged in the

indictment. The contents of the briefcase

may have in part belonged both to Frick and

Petersen, and such contents were used against

both of them by the prosecution, particularly

the so-called “Sucker Exhibit".

The majority opinion in the Fifth Circuit

Court of Appeals found that "[only] defendant

Frick has standing to contest the search and

seizure." United States v. Frick, 490 F. 2d

666, 669 (Sth Cir. 1973), rehearing and re-

hearing en banc denied March 15,1974. This

was based upon an application of the "pro-

prietary interest test" delineated in Brown

v. United States, 411 U.S. 223, 229 (1973).

However, based upon the undisputed facts

brought out at the evidentiary hearing, it

would seem that even under the test set forth

by the majority at p. 669, Petersen did have

an ownership interest in the briefcase, the

automobile, and at least some portion of the

contents, much of which was used by and which

formed an important part of the case of the

Government.

Under these circumstances, Petersen has

<s much standing to contest the search and

seizure as did Frick. Accordingly, a finding

by this Honorable Court that the search and

seizure were improper and beyond the scope

of the Fourth Amendment would entitle defen-

dant Petersen to a new trial.

(2)

There were no “exigent circumstances" in

the present case.

The morning after the indictment of defen-

dants Frick and Petersen were handed down,

five agents of the F.B.I. arrived at the

apartment of defendant Frick with an arrest

warrant. They waited until he had left his

apartment, reached his car, and unlocked the

door before arresting him and handcuffing

him. Only then was his briefcase seized from

the back seat of the automobile. (Testimony

of arresting officer, Motion to Suppress,

February 16, 1972, p. 20-21) Agent McDaniels

removed the briefcase and searched it without

first procuring a search warrant.

There is conflicting testimony as to the

distance between defeudant Frick and the

Briefcase at the time of arrest. Agent

McDaniels claimed that the distance was no

more than one foot whereas Frick testified

that the distance was considerably further.

Under the foregoing facts, the warrant-

less search was “per se unreasonable" and

violative of the Fourth Amendment,unless

justified by certain exigent circumstances.

Coolidge v. New Hampshire, 403 U.S. 443,

454-455 (1971). Realizing this the majority

opinion upheld the denial of the motion to

suppress on two bases: i) the search was

justified under Chimel v. California, 395

U.S. 752 (1969), as incident to a lawful

arrest; and 2) the search was within the

guidelines laid down in Carroll v. United

States, 267 U.S. 132 (1925) for cases involv-

ing automobile searches.

In considering the justifications offered

;

TI sah: nai KT wis tld alee ses) 2 I

in support of a warrantless search, as the

Court did in Coolidge v. New Hampshire,

supra at 454, 455:

"We must not lose sight of the Fourth

Amendment's fundamental guarantee.

“It may be that it is the obnoxious

thing in its mildest and least repulsive

form, but illegitimate and unconsti-

tutional practices get their first

footing in that way, namely, by silent

approaches and slight deviations from

legal modes of procedures. This can

only be obviated by adhering to the rule

that constitutional provisions for the

security of person and property should

be liberally construed. A close and

literal construction deprives them of

half their efficacy, and leads to

gradual depriciation of the right, as if

it consisted more in sound than in sub-

stance. It is the duty of courts to

be watchful for the constitutional

rights of the citizen, and against any

stealthy encroachments thereon.

“Thus the most basic constitutional

rule in this area ia that ‘searches

conducted outside the judicial process

without prior approval by judge or

magistrate, are per se unreasonable

under the Fourth Amendment-subject only

to a few specifically established and

well-delineated exceptions.' The ex-

ceptions are ‘jealously and carefully

drawn," and there must be ‘a showing

by those who seek exemption ***that

the exigencies of the situation made

that course imperative.' '‘'[T]he bur-

den is on those seeking the exemption

to show the need for it.'"

A recognized exception to the rule that

2 warrant is needed to conduct a search is

a search incident to an arrest. The majori-

ty panel opinion of the Fifth Circuit Court

of Appeals sought to rely on Chimel v.

california, supra, in finding that the

search was justified as incidental to an

arrest. Yet in that case, the Supreme Court

held:

“There is ample justification, there-

fore, for a search of the arrestee's

person and the area ‘within his im-

mediate control’ construing that phrase

to mean the area from within which he

might gain possession of a weapon or

destructible evidence." Chimel v.

California, supra at 763. (emphasis

added)

The briefcase was not within that area

from within which Frick could have gained

possession of a weapon or destructible

evidence. He was handcuffed and in the

custody of five Federal agents. To allow

a search and seizure of a nearby briefcase

at this point would be to ignore the

rationale of Chimel, that is 1) to protect

the officers, and 2) to protect destructi-

ble evidence. Neither of these factors

were present.

If Frick's estimate of the distance be-

tween himself and the briefcase is accepted

then the seizure of the briefcase, certain-

ly not within defendant's reach, would be

impermissible under Chimel. However, the

reasoning of the Chimel opinion also negates

the permissibility Of the warrantless seiz-

ure in question even if the arresting

agent's testimony as to distance is to be

accepted. The justification for a search,

——

that it would avoid the possibility of de-

fendant's endangering the lives or safety

of the police, or the possibility of a de-

fendant's destroying evidence nearby, was

completely absent.

"By any reasonable interpretation, the

area within Frick's control at the time

of this search amounted to no more than

his own person, under the most generous

constructions of Chimel," Judge Gold-

berg concluded in his strong dissenting

opinion. United States v. Frick, supra

at 673.

The majority opinion is entirely

"devoid of any indication of the manner

in which Frick, an individual with no

previous record for recklessness or

violence, might have accomplished the

rather extraordinary feats of over-

powering his trained captors, breaking

his bonds, and destroying the crucial

evidence." Id.

“Indeed, if the federal agents legiti-

mately thought that Frick might gain

access to the briefcase, their conduct

in removing it from the car and opening

it in his presence appears precisely

calculated to increase, rather than

remove, that possibility. If, as agent

McDaniels testified, the car door was

open at the time of the arrest, the

commonplace action of depressing the

lock and closing the door would have

provided the maximum possible protection

against the dangers of violence and

destruction outlined in Chimel." Id.

Additionally, Frick could have easily

been arrested in his apartment either during

the previous evening or early that morning.

Instead, agent McDaniels and the other agents

waited in the parking lot until defendant

Frick had left his apartment, walked down to

his vehicle (a white cadillac, which was most

conspicuous and which was known to McDaniels

and which had been recognized and examined

from the outside and the briefcase spotted)

unlocked it, and opened the door. (Testimony

of arresting agent, Motion to Suppress,

February 16, 1972, p. 19). When one considers

this, as well as that the arrest warrant was

issued the previous day, it becomes clear

that since agent McDaniels knew of the brief-

case and of its importance, he delayed

arresting Frick long enough to be able to

seize the briefcase and be able to argue that

it was within some exception to the warrant

requirement. Consider also that the F.B.I.

agents had been on the scene sufficiently

long for others to have attempted to arrest

detendant Petersen, fail to locate him, and

arrived to join agent McDaniels (Testimony

of arresting agent, Motion to Suppress,

February 16, 1972 pages 18, 22-23).

The similarity of the plan allegedly

devised and executed by the arresting

officers in Chimel v. California, is too

obvious to be coincidental.

"The petitioner correctly points out

that one result of decisions such as

Rabainowitz and Harris is to give law

enforcement officials the opportunity

to engage in searches not justified by

probable cause, by the simple expedient

of arranging to arrest suspects at home

rather than elsewhere. We do not suggest

that the petitioner is necessarily

correct in his assertion that such a

strategy was utilized here, but the

fact remains that had he been arrested

Nid nadcbel Nenad aah dah) weer

Patiisirterioiverinrata sens sncndtn tress sth RY

earlier in the day, at his place of

employment rather than at home, no

search of his house could have been

made without a search warrant. In any

event, even apart from the possibility

of such police tactics, the general point

so forcefully made by Judge Learned Hand

the United States v. Kirschenblatt, 2d

Cir., 16 F. 2d 202, 51 A.L.R. 416, re-

Mains:

After arresting a man in his house, to

rummage at will among his papers in

search of whatever will convict him,

appears to us to be indistinguishable

from what might be done under a general

warrant; indeed, the warrant would give

more protection, for presumably it must

be issued by a magistrate. True, by

hypothesis the power would not exist,

if the supposed offender were not found

on the premises; but it is small con-

solation to know that one's papers are

safe only so long as one is not at home."

Id. at 203.

k*«zek &

“Application of sound Fourth Amendment

principles to the facts of this case

produces a clear result. The search

here went far beyond the petitioner's

person and the area from within which

he might have obtained either a weapon

or something that could have been used

as evidence against him. There was no

constitutional justification, in the

absence of a search warrant, for ex-

tending the search beyond that area.

The scope of the search, was, therefore,

‘unreasonable’ under the Fourth and

Fourteenth Amendments and the petitioner's

conviction cannot stand." Id.

The testimony of agent McDaniels makes

it abundantly clear that he was fully familiar

with the law and that he had set things up

so as to justify the warrantless search.

"At that--well, the people I talked to

or interviewed, said that Mr. Frick had

the favors, which he had used it on

that occasion, in his briefcase, and

that he had it when he was talking to

them. So at that point I felt that

being in a place I had a right to be,

and observing the briefcase from that

place, I felt that there was probable

cause to believe that contained in

that briefcase at that time." (Testi-

mony of arresting agent, Motion to

Suppress, February 16, 1972, p. 23)

(emphasis added).

Agent McDaniels knowingly arranged and

executed the arrest in such a way as to be

in a place "where he had a right to be."

The only significant difference between Chimel

and the present case is that having ascer-

tained that the briefcase was in the Cadillac,

it was arranged that the warrantless search

not be conducted at Frick's home but at his

automobile.

This is not a case where one hour after

a description of armed men is given, they

are arrested. Rather this is a case where-

in there was a prolonged investigation and

a formal indictment, and the circumstances

were such as the F.B.I. felt that the arrest

of Frick before the indictment was not re-

quired. Certainly there was ample time to

have obtained a warrant if there was reason-

able cause to seize the briefcase or even

if the agents had felt that the briefcase

should not be missed. It is clear that

the Government agents staged the arrest in

order to obtain papers they could not obtain

through lawful judicial processes. To permit

such deliberate disregard of the Fourth

Amendment's requirements as the Court of

Appeals did is to read out the salutory

requirements of the well-considered law.

(3)

The search of the briefcase cannot be

justified as being in "plain view."

As Your Honors stated in Collidge v.

New Hampshire, 403 U.S. 443 at 468 (1971):

“ke * *[P] lain view alone is never enough

to justify the warrantless seizure of

evidence. * * * Incontrovertible testi-

mony of the senses that an incriminat-

ing object is on the premises belong-

ing to a criminal suspect may establish

the fullest possible measures of pro-

bable cause. But even where the object

is contraband, this Court has repeatedly

stated and enforced the basic rule that

the police may not enter and make

warrantless seizure." [emphasis added]

The Sixth Circuit, as recently as

April 5, 1973, held that a warrantless

seizure of an automobile can not be justified

on the theory that it was in "plain view".

Lewis v. Cardwell, 476 F. 2d 467 at 470

(6th Cir. 1973), cert. granted 94 S.Ct. 567

(Dec. 3, 1973).

[When] law enforcement officers have

prior knowledge amounting to probable

cause establishing the nexus between

the article sought and the place of

seizure a warrant must be obtained

in order to protect the Fourth Amend-

ment principle that warrantless seizures

are per se unreasonable in the absence

of exigent circumstances."

"What the plain view cases have in

common is that the police officer in

each of them has a prior justification

for an intrusion in the course of which

he came inadvertently across a piece of

evidence incriminating the accused."

Coolidge v. New Hampshire, supra."

There was nothing inadvertent in the

present case about the F.B.I. agent coming

upon the evidence. He admitted that he had

reasonable cause to believe the briefcase

had been with Frick all along and if agent

McDaniels had believed that the briefcase

was necessary to make his case, he should

have and could have obtained a warrant from

a magistrate, just as he did an arrest

warrant A contrary result makes a mockery

of the Fourth Amendment.

Ad Judge Goldberg concluded in his

vigorous dissenting opinion:

"in this case, as in Coolidge, the

'‘premises' of the criminal suspect

consisted of his automobile. Since

the FBI agents did not have to enter

the car in order to effect Frick's

arrest, they had no independent ‘jus-

tification for the intrusion on a con-

stitutionally recognized zone of privacy.

In the absence of such a justification,

the plain view doctrine cannot apply.

"Even had the officers been entitled

to enter the car, however, the resort

to plain view would fail. Frick

challenges the introdvction of the

contents of the briefcase and not the

case itself. Those papers were most

2 ERSTE

certainly not in view at all until the

seizure and search had been completed

-.- - -This is precisely the kind of

broad search Chimel was written to

curtail. United States v. Frick at

16, n.2. (emphasis added).

(4)

The search of the vehicle cannot be

justified by the mobile nature of the auto-

mobile, in the absence of other circum-

stances.

The holding of the majority emphasized

the “mobile” nature of the automobile and

sought to rely upon Chambers v. Maroney,

399 U.S. 42 (1970) However, as Judge Gold-

berg pointed out:

“At the outset it should be noted that

any holding in favor of the applic-

ability of the Carroll exception only

takes the Government over the first

hurdle - it justifies the removal of

the briefcase from Frick's car. The

subsequent warrantless inspection of

the contents of the closed briefcase

requires independent analysis."

(United States v. Frick, supra at 674)

There are two general requirements for

the application of the "car exception"

first recognized in Carroll v. United States,

267 U.S. 132 (1925) in order to permit the

warrantless search of an automobile: first,

the arresting officers must have probable

cause to believe that the vehicle contains

contraband or other evidence. Second,

certain exigent circumstances must demonstrat:

that it is not practicable to secure a warrant

Coolidge v. New Hampshire, supra at 460,

quoting Carroll v. United States, supra at

Sct te an ad een ae ke Fe A OE BL 5 ESAT RATE DIYL LOS ONES LENES NEIL LEONI SRO IPN oF IE I SOE te, om, Be ENE

152. The facts of the present case manifestly

fail to substantiate either of these esséntial

elements.

The majority also relied heavily on

Chambers v. Maroney, 399 U.S. 42 (1970) .

However Chambers and the present case are

factually dissimilar. In Chambers there was

probably cause to search the car, in that

witnesses to a robbery had given a de-

scription of the car and its occupants to

the police. Within the following hour, a

car of that description was stopped, the

four occupants removed, and their car was

taken to police headquarters. The later

search of the vehicle itself without a

warrant was upheld, but the Court specifically

held that this was not a search incident to

an arrest. Chambers v. Maroney, supra at

p. 47. The search was instead one based on

probable cause.

In the present case there was no pro-

bable cause to search the automobile of Mr.

Frick and Rothchild Mortgage Investors.

The Government's failure to procure a warrant

before departing for Frick's apartment sub-.

stantiates this conclusion. Furthermore,

mere suspicion does not constitute probable

cause. See Giordenello v. United States,

357 U.S. 480 (1958); Brinegar v. United

States, 338 U.S. 160 (1949); Black v. Ohio,

379 U.S. 89 (1964). In this case the

agent's suspicions bore fruit, but fruit

tainted by the illegality of the search

itself.

Even assuming that probable cause

existed for the belief that Frick's auto-

' mobile contained evidence of the crime, the

' search must still be justified by the presence

of exigent circumstances which made it im-

practical for the FBI agents to obtain a

warrant.

| The factual situation in the present

case is similar to the one found in Coolidge

v. New Hampshire, supra at 461-462, in which

a warrantless search was not permitted.

"The word ‘automobile' is not a talisman

in whose presence the Fourth Amendment

fades away and disappears. And surely

there is nothing in this case to invoke

the meaning and purpose of the rule of

Carroll v. United States - no criminal

bent on flight, no fleeting opportunity

on an, open highway after a hazardous

chase, not contraband or stolen goods

or weapons, no confederates waiting

to move the evidence, not even the

inconvenience of a special police de-

tail to guard the immobilized automobile.

In short, by no possible stretch of

the legal imagination can this be made

into a case where it is not practicable

to secure a warrant."

The majority panel of the Fifth Circuit

Court of Appeals in this case mentions three

allegedly “exigent circumstances" justifying

the search of Frick's car and briefcase: (1)

the mobile character of the attache case,

(2) the possibility that an unknown friend

of the defendant might remove the evidence,

and’ (3) the possibility that the suspect

himself, once released on bail, will destroy

the evidence.

The first alleged exigent circumstances

necessarily reduces the meaning, of Coolidge

to an absurdity.

"., . «(A) good number of the containers

that the police might discover on a

person's property and want ‘to search

PANE Pit Bae Dey Y Bay eet VLE Cmiey we eee OO OLEATE MUGEN Y LUG EL OTROS HO IIE EE EY ORT Salle HE

pase

attempt to remove the evidence. Note

turned himself in at that time.

finlod Sates seardusa

' nearly every criminal case. If such a

are equally (as) movable (as an auto-

mobile), e.g., trunks, suitcases, boxes,

briefcases, and bags. How are such

objects to be distinge sched from an

unoccupied automobile - not then being

used for any illegal purpose - sitting

on the owner's property? It is true

that the automobile has wheels and its

own locomotive power. But given the

virtually universal availability of

automobiles in our society there is

little difference between driving the

container itself away and driving it

away in a vehicle brought to the scene

for that purpose. Of course, if there

is a criminal suspect close enough to

the automobile so that he might get a

weapon or destroy evidence within it,

the police may make a search of appro-

priately limited scope. Chimel......

But if Carroll v. United States....

permits a warrantless search of an

unoccupied vehicle, on private property

and beyond the scope of a valid search

incident to an arrest, then it would

permit as well a warrantless search of

a suitcase or a box. We have found no

case that suggests such an extension

of Carrol." 403 U.S. at 461, n. 18

(emphasis added)

The second alleged "exigent circumstance”

fails because the record fails to indicate

any real fear on the part of the agents that

an unknown friend of Frick's might possibly

additionally, that Petersen had already

The third alleged "exigent circumstance"

also fails upon immediate scrutiny because

the possible release on bail will exist in

possibility constitutes an exigency, then

warrantless searches would become the general

rule and not the exception.

(5)

The search and subsequent seizure of

the contents of the briefcase demonstrably

exceeded the permissible scope of the Fourth

Amendment search.

Judge Thornberry aptly noted the recent

decisions of the Fifth Circuit Court in his

dissenting opinion in United States v. Cyzew-

ski, 484 F. 2d 509, 518 (5th Cir. August 29,

1973):

"There is a second reason why the search

in this case should not be upheld. ...

We have recently held in United States

v. Soriano, 5th Cir. 1973, F.

469 that police officers with probable

cause to believe that a suitcase con-

tained contraband were justified by

exigent circumstances in seizing it

without a warrant, but that they were

obligated to secure a warrant before

insrecting its contents. See also

United States v. Garay, 5th Cir. 1973,

477 F. 2d 1306." (Emphasis added)

In the case of United States v. Soriano,

482 F. 2d 469 (5th Cir. 1973), reh. granted,

the Court was concerned with an appeal by

the Government from a pretrial order of the

trial court suppressing the fruits of a

warrantless search of three suitcases. The

court found probable cause to believe that

the occupants of the taxicab were carrying

narcotics. The Government did not argue

that the search was legitimately incident

to a lawful arrest nor was it valid under

ennai mati LAA ame Sa atin rile i a ti it Ati DENS RAs TA i COs nd cabo tl pores

the plain view exception. The Government

argued that the search was proper because

exigent circumstances justified failure

to secure a warrant and a warrant to

search personal effects is not required

after they have been legitimately seized.

The Court upheld the lower court and

held:

". . .Also, the search exceeded the

scope of justification for the

initial intrusion, while exigent

circumstances required seizure of

the suitcase and detention pending

issuance of a warrant, they did not

require an immediate warrantless

search of the contents.

"Thus the search was unlawful

because it intruded on an interest

protected by the Fourth Amendment

and because a warrant could have

been readily obtained without

prejudicing the need for effective

law enforcement."

Id. at 476 (emphasis added)

Viewed from any angle the FBI agents

were not justified in failing to first

obtain a search warrant before conducting

the search of the automobile as well as

the search of the briefcase and subsequent

seizure its contents.

eee

Rib ee.

II. THE FAILURE OF THE UNITED STATES

TO DISCLOSE EVIDENCE IN ITS

POSSESSION FAVORABLE TO THE

PETITIONER IS REVERSIBLF ERROR AND

JUSTIFIES THE GRANT OF CERTIORARI

TO REVIEW THE JUDGMENT BELOW.

Motion was filed on behalf of defendant

Petersen and granted by Magistrate Sear to

require the Government to turn over to the

defense all evidence that was favorable to

the accused. The United States Attorney

claimed on several occasions that he had no

Brady Material. (Pre-Trial Stipulation and

Order page 2.)

The allegations of fact contained in

paragraphs 3 and 4 of Count I were realleged

as the basis for Counts II, III, IV, and Vv

of the indictment. Count I, paragraphs 3

and 4 read as follows:

"3. It was a further part of said

conspiracy and scheme to defraud

that the defendants furnished to

Frank Crawley, III, fraudulent

financial statements of the Tangi-

ble Risk Insurance Company, Ltd.,

and fraudulently represented that

the aforesaid financial statements

were accurate and valid.

"4. It was a further part of said con-

spiracy and scheme to defraud that

the defendants furnished to Frank

Crawley, III, a fraudulent and

false letter of commitment from

the Tangible Risk Insurance Com-

pany, Ltd., wherein said company

agreed to loan the sum of $375,000.00

to him, when it truth and fact

the defendants well knew that the

representations contained in said

letter of committment were false

and fraudulent and said loan com-

mitment was not valid when present-

ed to him."

Under such circumstances, the Government

was required to disclose any evidence and

witnesses which it had in its possession

which would have tended to establish the

existence and operations of Tangible Risk

Insurance Company, Ltd. Rrady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194 10 Led 2d 215

(1963), Napue v. Illinois, 360 U.S. 264, 79

S. Ct. 1173, 3 Led. 2d 1217 (19 59) Giglio

v. United States 405 U.S.150, 92 S. Ct. 763

31 Led. 2d 104 (1972).

The Prosecuter, Mr. Robert Livingston,

had in his file the following basic infor-

mation: (all of which has now been filed

with the Pifth Circuit)

1. Information in the FBI initial report

which indicated that the Oklahoma City Postal

Inspector who was investigating was familiar

with Tangible Risk Insurance Company, Ltd.

Similarly, Floyd Henson stated that he had

read in Business Week of July 10, 1971 that

Tangible Risk was a subsidiary of the Bank

of Sark. (the article itself indicated that

there had been investigations and indictments

in Birmingham, among other places)

2. Correspondence from the Postal Inspec-

tor in Shreveport setting forth the existence

of Tangible Risk, and providing to Mr. Living-

ston the name of Mr. J. E. Council, the

Government's top investigator of Tangible

Risk. Here again, several sources of infor-

mation concerning the existence and location

ss a

of Tangible Risk offices and agents were

disclosed.

3. Correspondence from Mr. Joseph A.

Humphreys, which included other committments,

balance sheets, and even the corporate

charter and name change. There were even

inquiries from loan brokers which had been

approached by Tangible Risk, setting up a

factual situation as to them similar, to the

defense of the defendants in the present

matter. Mr. Humphreys was subpoenaed by

the Government but was not required to

appear.

Mr. Livingston testified in great detail

that he did not feel that any of this materi-

al was Brady material, because it was not

exculpatory of the defendants. The key word

in Mr. Livingston's understanding is excul-

patory." Merely because such information or

documents might have been favorable or have

led to information that might have been

favorable or exculpatory would not have been

sufficient under the test used by the pro-

secutor to determine Brady material.

The law, with regard to Brady material,

does not stop with the requirement merely

that exculpatory material be furnished, the

test set down by Your Honors and the various

Courts of Appeal is considerably broader and

encompasses in addition, material which is

favorable to the defendant or which may

lead to favorable or exculpatory evidence.

Wright, Federal Practice and Procedure,

Sec. 557 page 529 stated:

". » «e(T)he suppression by the prosecu-

tion of evidence favorable to an

accused upon request violated due pro-

cess where the evidence is material

either to guilt or to punishment, re-

gardless of the good faith or bad

faith of the prosecution." (emphasis

added)

In United States v. Polisi, 416 F. 2d

573 (2d Cir. 1969) at 577, the Court states

the test in a similar way:

“Similarly, the general rule does not

apply where the prosecutor has suppress-

ed, evidence exculpatory of or otherwise

favorable to the accused. The prosecu-

tor has a duty not to use evidence

known to be false, even if he did not

instigate the perjury* * *" (emphasis

added)

In United States v. Miller, 411 F. 2d

825 at 832 (2d Cir. 1969) the Court of

Appeals reversed the failure of the trial

judge to grant a new trial, stating:

"The test, however, is not how the

newly discovered evidence concerning

the hypnosis would affect the trial

judge or ourselves but whether, with

the Government's case against Miller

already subject to serious attack,

there was a significant chance that

this added item, developed by skilled

counsel as it would have been, could

have induced a reasonable doubt in the

minds of enough jurors to avoid a con-

viction. We cannot conscientiously

say there was not."

Brady v. Maryland, 373 U.S. 83,83 S.ct.1194

(1963) is the watershead case in this area.

In that case the Court stated at pages 1195-

1196:

“We now hold that the suppression by

the prosecution of evidence favorable

4 to an accused upon request violates

j due process where the evidence is

i material either to guilt or to punish-

4 ment, irrespective of the good faith

or bad faith of the prosecution.

The principle of Mooney v. Holohan is

not punishment of society for misdeeds

of a prosecutor but avoidance of an

unfair trial to the accused. Society

wins not only when the guilty are con-

victed but when criminal trials are

fair; our system of the administration

of justice suffers when any accused is

treated unfairly. An inscription on

the walls of the Department of Justice

states the proposition candidly for

the federal domain: ‘The United States

wins its point whenever justice is done

! its citizens in the courts.’ A pro-

: secution that withholds evidence on

: demand of in accused which, if made

} available, would tend to exculpate him

3 or reduce the penalty helps shape a

3 trial that bears heavily onthe defen-

dant. That casts the prosecutor in the

role of an architect of a proceeding

that does not comport with standards

of justice, even though, as in the

present case, his action is not'the

result of guile,' to use the words of

the Court of Appeals. 226MD., at 427,

174 A. 2d at 169." (emphasis added)

Sea la) SRA LRT Banal ereah haar

pasa ite Deeb’ Vie a

In Levin v. Clark, 408 F. 2d 117 at 1211,

1212, and 1215 (D.C. Cir. 1967), the Court

considered the test which should be used,

the rationale for such test and then pro-

ceeded to apply the test in the particular

factual context before the Court in order

to require a new trial.

“The Government's facilities for dis-

covering evidence are usually far

superior to the defendant's. This im-

balance is a weakness in our adversary

system which increases the possibility

of erroneous convictions. When the

Government aggravates the imbalance

by failing to reveal evidence which

would be helpful to the defendant the

constitution has been violated. The

concern is not that law enforcers are

breaking the law but that innocent

people may be convicted.

"The question is what kinds of evi-

dence’ must the prosecutor reveal?

Various courts have talked about '‘'favor-

able' evidence, ‘material’ evidence,

‘pertinent facts relating to (the)

defense, ‘information impinging on a

vital area in (the) defense,' evidence

vital ‘to the accused persons in

planning and conducting their defense, '

and ‘evidence that may reasonably be

considered admissible and useful to

the defense. When there is substantial

room for doubt, the prosecution is not

to decide for the court what is useful.'

Without excluding any of these relevant

considerations, in the present case we

focused upon the ultimate possibility

of harm to the defendant--the possibility

of erroneous conviction--and we stated

the standard in terms of whether the

evidence ‘might have led the jury to

entertain a reasonable doubt about

(defendant's) guilt.'

ols

}

sibs SAR aR Alaa ana en

Brritinicriseve:

"This standard requires speculation be-

cause there is no sure way to know how

the jury would have viewed any particu-

lar piece of evidence. Nor is it

possible to know whether revelation of

the evidence would have changed the

configuration of the trial--whether de-

fense counsel's preparation would have

been different had he known about the

evidence, whether new defenses would

have been added, whether emphasis of the

old defenses would have shifted. Because

the standard requires this kind of

speculation we cannot apply it harshly

or dogmatically. In Griffin v. United

States,the Supreme Court directed us to

consider ‘whether it would not be too

dogmatic, on the basis of mere specula-

tion, for any court to conclude that the

jury would not have attached signifi-

cance to the evidence favorable to the

defendant had the evidence been before

it.' We think it would be too dogmatic

here."

Using the particular tests suggested in

that discussion, the Court found that the

statement of a key witness constituted in-

formation favorable to the defendant that

was required to be disclosed:

"If the jury had known of McCeney's

statement and had taken it to indicate

that there was no exchange into smaller

bills, then Landriscina's description

of the transaction would have fallen

and with it the heart of the Government's

case. Of course the jury might have

disbelieved McCeney, or it might have

decided that the exchange took place

even though McCenye and Hooper did not

remember it. Or the jury might have

convicted on the basis of the circum-

stantial evidence even though it believed

that the exchange of bills and the

transaction surrounding that exchange

had not occurred. Yet it is clearly

within the realm of possibility that the

jury would have ‘attached significance'

to McCeney's statement.

“We would be required to reverse, then,

even if the statements only significance

were in the way a jury might have viewed

it. However, the statement has another

importance. With knowledge of McCeney's

statement, defense counsel certainly

would have probed deeper into what was

the central aspect of the Government's

case. For example, with some investi-

gation, reconstruction of events, and

discussions with Hooper and McCenye,

defense counsel might have been able to

transform their inability to remember

the transaction into a positive state-

ment that there was no exchange of bills."

Here as there, it is clear that: "if

defense counsel knew of McCeney's pre-trial

statement, the course of the trial might

have been quite different.

In Pyle v. State of Kansas, 317 U.S.

213, 63 S.Ct. 177 at p. 178 (1942), the

Supreme Court said:

"Petitioner's papers * * *set forth

allegations that his imprisonment re-

sulted from perjured testimony, knowing-

ly used by the State authorities to

obtain his confiction, and from the

deliberate suppression by those same

authorities of evidence favorable to

him. These allegations sufficiently

wait ht sie aaa

Pry ee Phe

charge a deprivation of rights guaran-

teed by the Federal Constitution, and,

if proven, would entitle petitioner to

release from his present custody."

In Giglio v. United States, 405 U.S. 150,

92 S. Ct. 763 (1972) at p. 766 the Supreme

Court reaffirmed the holding of Napue that:

"A new trial is required if ‘the false

testimony could. . .in any reasonable

likelihood have affected the judgment

of the jury. . ."Napue v. Illinois,

supra at 271, 79 S.Ct. at 1178, 3 L. Ed.

2a 1217."

In United States v. Mele, 462 F. 2d 918

at 924-925-926 (2d Cir. 1972), the Court

stated:

“Due process requires, however, ‘that

different rule be applied when prosecu-

torial suppression has caused the evi-

dence not to be presented at trial. At

least where the suppression is deliberate

the defendants need only show that the

evidence is material and could in any

reasonable likelihood have led to a

different result on retrial. Giglio

v. United States, 405 U.S. 150, 154,

92 S.Ct. 763. 31 L.Ed. 2d 104 (1972).

See also United States v. Keogh, 391

F. 2d 138 (2 Cir. 1968); Kyle v. United

States, 297 F. 2d 507 (2 Cir. 1961).

In these cases, where there has been a

considered decision to suppress and

where the value of the information

‘could not have escaped the prosecutor's

attention.’ United States v. Keogh,

supra, at 147, it is not necessary to

engage in any exact determination of

the degree of prejudice to the

defendants."

xk kek kK

"In this case it is clear from its very

inception that the prosecution labored

to keep vital information from the de-

fense, the trial judge and the ‘jury.

In addition, in some official narcotics

agents' reports slanted information

was inserted and produced to the defense,

the judge and the jury in order to en-

shroud the Government's initial deceit.

Moreover, its initial equivocal statement

both with the trial court and with us

stating there was 'no credible and rele-

vant evidence' to support the charge

that the Government had planted a paid

informer within the intimate circle of

the defense, even to the extent of his

attendance at the defense table during

the trial, is beyond our comprehension

and cannot be condoned. In our detail-

ed examination of the pleading, the evi-

dence and the argument of counsel we ,

cannot say that in the light of these

deliberate excisions, slanted reports

and misrepresentations--made again and

then again--that the jury could not in

any reasonable likelihood have been af-

fected in its verdict. Giglio v. United

States, supra; Napue v. Illinois, 360 U.

S. 264, 271, 79 S.Ct. II73, 3 L.Ed. 2d

1217 (1959).

"Of course, even in cases of extreme

prosecutorial misconduct, a new trial

is not granted if the suppressed evi-

dence or the misleading portions of the

Government's case could not possibly

have had an effect on the jury's ver-

dict. Our examination of the case here,

IRB GID DOR EE

however, convinces us that if the jury

had known the full truth, it might

reasonably have reached a different re-

sult.

‘k kk Kk RK

RO TAR IE TINIE Ne HRN EN AG SAO

TR BE IOWS OS e ECPS

"If the whole truth had been available,

and if the defense were given the oppor- —

tunity to explore the suppressed evi-

dence, ‘reasonable doubts' about the

defendants' guilt could certainly be

raised."

kekekkktk

“If the whole truth had been available, —

and if the defense were given the oppor- ©

tunity to explore the suppressed evi- :

dence, ‘reasonable doubts' about the

defendants’ guilt could certainly be

raised." i ;

kek Kk KK

"While Attorney General of the United

States I noticed an inscription that was

carved in the oak panel of my anteroom

and embossed in gold: , "The United States

wins its point whenever justice is done

its citizens in its courts." We regret

to say that the record here does not

comport with that high standard. The

judgment ,is Reversed."

‘

It is much to be regreted that the record

in, the present matter both in the District

Court and in the Court of Appeals reveals

the same refusal of the Government to dis-

' close evidence that is similarly favorable

to the defendants and which would certainly

have had an effect on the verdict of the

TION OTE ALT SE EN ET OF ROE PLE RRA te tf

istry 39, SET MELE RERRIS OOS

jury.

In Giles v. State of Maryland, 386 U.S.

66, 87 S.Ct. 793 (1967), the question which

this Honorable Court stated but did not

answer was:

"Thus this case presents the broad

questions whether the prosecution's

constitutional duty to disclose extends

to all evidence admissible and useful to

the defense, and the degree of prejudice

which must be shown to make necessary a

new trial."

The Court was able to obviate this issue by

discussing two pieces of newly discovered

‘-evidence, which justified reversal, as in

the present case. However, at p. 810,

Justice Fortas, in a concurring opinion, ad-

dressed himself to tris issue:

"A criminal trial is not a game in which

the State's functicn is to outwit and

entrap its quarry. The State's pursuit

is justice, not a victim. If it has in

its exclusive possession specific, con-

crete evidence which is not merely cumu-

lative or embellishing and which may

exonerate the defendant or be of material

importance to the defense--regardless of

whether it relates to testimony which.

the State has caused to be given at the

trial--the State is obliged to bring it

to the atterition of the court and the

defense."

In United States v. Hibler, 463 F. 2d

455 at 459-460 (9th Cir. 1972), the prosecu-

tor justified his failure to disclose evi-

dence to the defense on the ground that he

did not think it was "material". In response

oe uehatit pripabnarse es

to this the Court stated:

De ae ee _ = « , _

Pres ©

"There is no doubt that the prosecution {

in a criminal trial has a duty of candor

toward the defendant. Brady v. ae

1963, 373 U.S. 83, 83 S.Ct. 1194, 10 \

L. Ed. 24 215. This duty is an ingre- _

dient of due process. The test is a

whether the undisclosed evidence was so —

important that its absence prevented the

accused from receiving his constitution-

ally-guaranteed fair trial. That defense

counsel did not specifically request the ©

information, that a “diliagent" defense

attorney might have discovered the infor-_

mation on his own with sufficient re-

ter, yee

search, or that the prosecution did not

suppress the evidence in bad faith, are —

not conclusive; due process can be denied

by failure to disclose alone. Jackson

v. Wainwright, 5 Cir., 1968, 390 F. 2d

288; Levin v. Katzenbach, D.C. Cir.,

1966, 363 F. 2d 287, 290, 124 U.S. App.

D.C. 158; Barbee v. Warden Maryland Peni-

tentiary, 4 Cir., 1964, 331 F. 2d 842,

845; United States ex rel. Meers v.

137, 140; United States ex rel, Thompson

v. Dye, 3 Cir., 1955, 221 F. 2d 763, 768,

cert. denied, 350 U.S. 875, 76 S.Ct. 120,

100 L.Ed. 773; United States ex rel

Almeida v. Baldi, 3 Cir., 1952, 195 F.

2d 815, 820, cert. denied 345 U.S. 904,

73 S.Ct. 639, 97 L.Ed.1341. ‘In gaug-

ing the nondisclosure in terms of due

process, the focus must be on the es-

sential fairness of the procedure and

not on the astuteness of either counsel.'

Barbee v. Warden, supra, 331 F.2d 842,

at 846.

“We agree with the District of Columbia

Circuit's description of the role of

the prosecutor in situations like this:

“When there is substantial room for

doubt, the prosecution is not to

decide for the court what is ad-

missible and for the defense what

is useful. ‘The United States

Attorney is the representative not

of an ordinary party to a contro-

versy, but of a sovereignty whose

obligation to govern impartially is

as compelling as its obligation to

govern at all; and whose interest,

therefore, in a criminal prosecution

is not that it shall win a case, but

that justice shall be done.’ Berger

v. United States, 295 U.S. 78 (55

S.Ct. 629 79 L.Ed. 1314). . .«'

Griffin v. United States. 1950, 87

U.S. App.D.C. 172, 183 F 2d 990,993.

The prosecutor's unilateral decision not

to disclose the evidence ‘invited the

risk of error.' Application of Kapatos,

Wainwright, supra, 390 F. 2d at 298.

“Thus Hibler is entitled to reversal if

the government failed to disclose evi-

dence which, in the contest of this

particular case, might have led the jury

to entertain a reasonable doubt about

his guilt. While in many cases it might

be true that evidence of the type in-

volved would not be crucial on the issue

of a defendant's guilt or innocence, we

have here a case, as we have shown, in

which the evidence was extremely close.

The credibility of Haynes and Hibler

were vital issues. This court has

specifically held that undisclosed

PS EE ET OF LLL ae OF

slit ee

evidence may be "material" on the issue

of an accused's guilt or innocence even

though it goes only to credibility.

Loraine v. United States, 9 Cir., 1968,

396 F. 2d 335, 339, cert. denied, 393

U.S. 933, 89 S.ct. 292, 21 L.Ed. 2d 270

At page 39 of the typewritten brief to

the Fifth Circuit, the Government states:

“Brady v. Maryland, 373 U.S. 82 (1963) re-

quires that the Government produce all

evidence favorable to the defendants which

is material to their innocence of punish-

ment* * *." this hardly seems different

from the standard urged by defendant Peter

sen, although considerably different from

the standard applied by Mr. Livingston. A

page 40 of the typewritten brief, the

Government states:

“Unless there are unusual circumstances,

such as knowingly concealing evidence

which is favorable to a defendant, the

Government is granted wide discretion i

calling witnesses to prove its case.

The Government is not ordinarily com-

Pelled to call all of the witnesses who

are competent to testify including

special agents or informers. There are

situations when the Government is re-

quired to call a witness whom the Gove

ment has reason to believe will give

exculpatory testimony."

How very applicable this statement of the

law would seem to be to Mr. Humphreys.

In the Opposition to Motion for a New

Trial filed in Pebruary of 1974, the Gove

ment at page 3-4 states as to the requisit

for granting a new trial as follows:

Ore a er ES eee ow - ~ CII OO Te ETO ot eae eaereE

“An exception is suppression by the

Government of evidence of an exculpatory

or otherwise favorable nature which is

material to the issue of guilt, irres-—

pective Of the good or bad faith of the

prosecution."

At page 10 of its Memorandum in Support

of Opposition, the Government stated:

“When the accused requests evidence from

the prosecutor which is withheld, if such

evidence is material to the guilt or

punishment of the defendant, without

regard to the good or bad faith of the

prosecution, due process is violated.

Citing Brady v. Maryland, 373 U.S. 83

(1963). It is necessary that the evidence

be material: however, its probable ef-

fect on the jury is not the sole reason

for granting a new trial. It is to

deter prosecutorial misconduct or negli-

gence to insure that prosecutors will

bring to light all significant evidence

that was known or should have been known

to them."

The activities and rationale of the prose-

cutor in the present case certainly fall

within the prohibition recommended by the

Government's own counsel. Due process re-

quired that the defendants in the present

case receive such material and information

and call as a witness Mr. Humphreys causes

the conduct of the Government to fall be-

neath the minimum standards of Due Process

and requires that the new trial be granted.

The alternative ground for which justi-

fies the grant of Certiorari is that of use

by the trial attorney for the Government of

information, testimony, and strateqy

which he knew to be misleading or actually

false, and the subsequent attempt of the

Government to cover this up.

The prosecutor testified as to what he

said and the reason for these statements.

The statements made by the prosecutor, him-

self are discussed hereinafter.

It is the contention of petitioner that

the prosecutor presented his case and ob-

tained a jury verdict against the defendants

on the basis of statements and implications

concerning Tangible Risk which were false

and which he knew to be untrue. Addition-

ally, Mr. Livingston elicited from Mr.

Henson testimony which Mr. Livingston later

used in his argument to the jury to conclude

that there was no Tangible Risk Insurance

Company. At page 220 of the Transcript of

the main trial, Mr. Henson testified that

he had sued Tangible Risk and the Bank of

Sark. Had the defendants been aware of the

Business Week article and the statement of

Mr. Henson that he felt that Tangible Risk

was a subsidiary of the Bank of Sark, it is

certain that skilled defense counsel could

have, through cross-examination and argu-

ment, developed a gaping hole in the theory

of the Government that Tangible Risk did not

exist and was a name conjured up solely by

the defendants.

This type of suppression and the active

misrepresentation contained in the argument

made by Mr. Livingston constitutes an in-

dependent and potent ground for a retrial.

Equally or more reprehensible was the

activities of the Government in attempting

to suppress and cover up the material in

the Government's file when information as

~~ PE a PT a Be i aD

et ia -

EEE SP LT IP. ee Pee gee Les

to the existence of Tangible Risk was dis-

covered by the defendants. In the original

brief of defendant Petersen the following

statement was made:

"The Government actually subpoenaed a

witness, who unbeknownst to defendants

did have knowledge that was favorable

to the defendants. Mr. Joseph P.

Humphreys, Executive Director, Non-

Admitted Insurers Information Office,

was not called to testify, nor was his

existence disclosed. There were very

likely others of whose existence defen-

dant is still unaware.

“In addition defendant has now dis-

covered that prior to this trial the

office of the United States Attorney in

St. Louis, Missouri and Chicago, Illi-

nois had conducted an investigation of

Tangible Risk Insurance Company, Ltd.,

which investigation and the results

thereof which (sic) were favorable to

the defendants (in that it disclosed a

company in operation which was in the

business of making committments and

loans), and which was known to the

office of the United States Attorney in

New Orleans because a portion of the case

involved one Santo DiFatta, who had

made a complaint to the United States

Attorney in the Eastern District of

Louisiana."

The United States treated of this issue

at pages 39-41 of its typewritten brief,

and in considering the factual contentions

of defendant the following statements were

made:

“Petersen has merely made an unsuppor-

ted statement that Joseph R. Humphrey

had information which would have been

favorable to him and he testified.

Petersen has not shown what this infor-

mation was or his reason for believing

that it would have been favorable. He

could have called Humphrey as his own

witness althovgh he was not required to

do so.

Pee ete OH an

2369 RD

“The assertion that there may have been

other witnesseS with information favor-

able to the defendant is purely specu-

lative. That the United States Attor-

ney's Office may have known there was a

company entitled "Tangible Risk Insur-

ance Company, Ltd.," lecated in St.

Louis, Missouri, or in Chicago, Illinois,

which information was not given to the

defendants does not consist of a fail-

ure to provide Brady material. The

existence of such a company would not

be exculpatory to the defendants.”

(page 41)

es Leek eis tam hair aeeaer

At the oral argument of May 31, 1973 in

the Fifth Circuit, the Assistant United

States Attorney handling the appeal. Mrs.

Mary Williams Cazalas, made the statement

to the Court that she had discussed the

matter with Mr, Robert L. Livingston, the

Assistant United States Attorney who had

handled the trial of the case, and that he

had no knowledge of any investigation being

conducted relative to the Tangible Risk

Insurance Company, Ltd. other than that

contained within <he record of this case. 2

Mrs. Cazalas and Mr. Livingston subsequently

filed affidavits in the District Court on

this point, copies of which have been filed

in the Court of Aoveals as Exhibit B and

OSes a ORE SERPS Ne ED, GAR See an: <s ee ee —-

, 41

Exhibit C of the Motion For Leave of Court

to File Supplemental Application for Re-

hearing.

Based on the brief, oral argument, and

representations of the United States, The

Fifth Circuit made the following statement

in its opinion concerning the Brady argument,

to wit:

". . eBrady v. Maryland, 373 U.S. 83

(1963), does not require all evidence

to be produced to the defense, just

that which is material. United States

v. Jordan, 399 F. 2d 610, 615 (2d Cir.

1968). Nor is Brady applicable at pre-

trial stages. Archer v. United States,

393, F. 2d 124, 126."

As has been discussed hereinabove, the

file of the United States contained knowledge

not only of the investigation made of

Tangible Risk, but also proof positive of

the existence of Tangible Risk Insurance

Company, Ltd.; that further Mr. Livingston's

file contained information furnished by

Joseph Humphreys which would have demon-

strated the existence of Tangible Risk.

(Copies of this material from the file of

Mr. Livingston which have been offered into

evidence in the District Court, were annex-

ed in the same motion as Exhibit D and

Exhibit E)

Your Honors have most recently reaffirm-

ed and expanded the due process requirements

of the Brady doctrine in Giglio v. United

States, supra 92 S.Ct. 763 at 766, wherein

the Court reiterated the prior law on

deliberate prosecutorial misconduct:

"As long ago as Mooney v. Holohan, 294

U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791

(1935), this Court made clear that

deliberate deception of a court and :

jurors by the presentation of known

false evidence is incompatible with

‘rudimentary demands of justice.'

This was reaffirmed in Pyle v. Kansas,

317 U.S. 213, 63 S.Ct. 177, 87 L.Ed.

214 (1942). In Napue v. Illinois, 360

U.S. 264, 79 S.Ct. 1173, 3 L.Ed. 2d 1217

(1959), we said, ‘the same result ob-

tains when the State, although not

soliciting false evidence, allows it to

go uncorrected when it appears. Id.,

at 269, 79 S.Ct. at 1177."

A recent case which seems squarely on

point with this issue is United States v.

Baum, 482 F. 2d 1325 (2d Cir. 1973). in

that case the Government concealed the

existence and testimony of one Greenhalgh

until he was called as the prosecution's ;

final witness of the trial. In reversing as”

to Baum, the Court stated at pp. 1331-1332:

"Confronted for the first time with the

accusation of prior criminal conduct and

the identity of the accuser, the defen-

dant had little or no opportunity to

meet the impact of this attack in the

midst of the trial. This precarious

predicament was precipitated by the

prosecutor.

“Ordinarily it is disclosure, rather

than suppression, that promotes the

proper administration of criminal jus-

tice. See Dennis v. United States,

384 U.S. 855, 870, 86 S.Ct. 1840, 16

L.Ed. 2d 973 (1966) ; United States v.

Youngblood, 379 F. 2d 365 (2d Cir. 1967).

"There were no valid considerations to

justify the concealment of Greenhalgh's

identity as a prospective witness, as

in United States v. Persico, 425 F. 2d

1375 (2d Cir. 1970). Greenhalgh was in

federal custody. Advance disciosure

presented no possible source of present

danger to the witness or others. There

was no thought that this witness would

be reluctant to testify upon disclosure

since he was a volunteer who solicited

the government to call upon him in the

hope of early release from confinement.

"Tt is the duty of the government to

present its case against the defendant

fairly. Little can be added to Justice

Traynor's statement--'A defendant has

hardly had a fair trial if he has been

denied the opportunity to discover

evidence or information crucial to his

defense.'

"The failure to reveal Greenhalgh's

identity until he was presented as a

witness, confronted the trial judge with

the hard choice of interruption of the

trial or denial to the defense of a

reasonable opportunity of meeting the

severe impact of this aspect of the

prosecutor's evidence. Such tactics were

condemned, and called for the reversal

in United States v. Kelly, 420 F. 2d

26, 29 (2d Cir. 1969), In the language

of Judge Smith ‘The course of the

government smacks too much of a trial

by ambush, in violation of the spirit

of the rules.' To be sure, Baum's

attorney did not make a very forceful

showing in the district court of what

cross-examination or rebuttal material

he could secure. But in a case so

close as this, we would rather give the

defendant the benefit of the doubt than

let the Government reap even a slight

possibility of benefit from what we

regard as a lack of candor unworthy of

a prosecutor."

In the present case “the lack of candor" ~

of the Government is even more striking and

concerned an even more crucial issue. For

the prosecutor to have stated and reiter-

ated that there was “no Tangible Risk", when ©

his files contained proof positive of the 4

existence of a company by that name constitu- ©

tes prosecutorial misconduct of the most

blatant variety, so much so as to require,

in the interest of justice, a retrial,

even though (assuming arguendo) no other

requisites for the granting of a new trial

might have been met.

The present case falls squarely within

the pronouncements of the Supreme Court in

Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785

(1967). In that case it turned out that

the “blood stained" shorts to which the

prosecutor constantly referred, were merely

stained by paint.

In reversing and remanding the case,

Your Honors stated at pp. 787-788:

“The prosecution's whole theory with

respect to the exhibit depended upon

that misrepresentation. For the theory

was that the victim's assailant had

discarded the shorts becuase they

were stained with blood. A pair of

paint-stained shorts, found in an aban-

doned building a mile away from the

ESE SEI, STIR 6 RN ee

YO Rp PRT 59-4: -~mocamgremsiaatcs —— a i

ERS ES THE Ramen eestor neem arercnarm enna

scene of the crime, was virtually value-—

less as evidence against the petitioner.

The prosecution deliberately misrepre-

sented the truth.

More than 30 years ago this Court held

that, the Fourteenth Amendment cannot

tolerate a state criminal conviction

obtained by the knowing use of false

evidence. Mooney v. Holohan, 294

U.S. 103, 55 5.Cte. 40, 79 Ura. 791.

There has been no diviation from that

established principle.

Napue v. People of State of Illinois,

360 U.S. 264, 79 S.Ct.1173, 3 L.Ed.

2d 1217; Pyle v. State of Kansas,

317 U8. 2ids Ba Salts. Aliy BF tc.

214; cf. Alcorta v. State of Texas,

355 U.S. 28,78 8.Ct. 103, 2 LEG.

2d 9. There can be no retreat from

that principle here.

AE BRON EE LITLE BOOLE RIE NE ET LS

III.,THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF APPEALS

WITH RESPECT TO WHETHER THE PROSECUTOR'S

VERBAL IMPROPRIETIES AND STATEMENTS

WERE SUFFICIENTLY PREJUDICIAL TO REQUIRE

REVERSAL.

The misconduct and verbal improprieties

of the prosecutor with reference to his

opening argument, his statements during

trial, and in his initial and rebuttal

closing arguments were sufficient to require

reversal of this matter and remand for a |

new trial.

The record in this case reveals a pro-

secutor who has stepped beyond the bounds of

his role as a representative of the United

States to become an unsworn witness for

the prosecution.

In the opening argument the tuscan

“faces: were made: :

"We feel that we will prove that the

defendants did devise a scheme to de-

fraud, ***"

"we intehd to prove that they promoted

their scheme all over the United

States *** (Open Argument p. 5,

Emphasis added)

"We are going to prove that Tangible

Risks Insurance Company was a name only,

' that it was never qualified to do

business in Oklahoma, and, in fact, it

couldn't possibly lend Mr. Crowley the

$300,000." (Opening Argument p.8

Emphasis added)

"The government ,will prove that in |

fact Mr. Crowley never got the loan

PRR ARCRRR era: 8 ere pa rreenneiinite re cmnensnaneacetence en enti <

ceo a | _ eat Ry bus Ree Setar a Mma wi RMA oA NGI Some EY

of $300,000 and in fact he never got

his $9,-00 back, and, in fact, the

defendants paid no attention to his

requests for his money back.

In fact, I think that the evidence will

verify that Mr. Crowley considered him-

self threatened by the defendants not

, to take any action against them to get

his money back. (Opening argument pages

8-9, Emphasis added)

“We will show that in fact they went so

far as to call their clients or their

customers what they really thought of

them. On one occasion they called

their client a sucker.

"Once all the witnesses have testified,

ladies and gentlemen, we feel that there

will be no doubt that th defendants

did intend to defraud Mr. Crowley, "

(Opening Argument page 11, Emphasis

added)

The Court of Appeals for the 9th Circuit

in Leonard v, United States, 277 F. 2d 834,

841 (9th Cir. 1960) made a good statement

of what should be in the opening statement:

"An opening statement should be limited

to a statement of facts which the govern-

ment intends or in good faith expects

to prove. It should not be argumentative

in character, nor should it be designed

to destroy the character of the defend-

ant before the introduction of any

evidence of the crime charged in the

indictment.

The opening statement in the case at

bar hardly meets this criteria.

MEALS NRE IL LIT BIS PE BO ELSE LIAR DAIL IRB EE ENG LORS OY NN EEN PRS ARS A ORES

In Government of Virgin Islands v._

Turner, 409 F. 2d 102, 104 (3d Cir. 1968),

a similar situation to the present case was

presented and the overturning of an over-

whelmingly strong case against the defendant

was upheld over a strong dissent and only

with great reservations. In that case, the

Court stated:

"The government's opening was not what,

in our opinion, an opening should be.

The purpose of an opening is to give

the broad outlines of the case to en-

able the jurv to comprehend it. It is

not to poison the jury's mind against

the defendant, and it is certainly

not to recite items of highly question-

able evidence. In the present case,

having formally complained against the

defendant for making two charges on the

credit card totalling $800, the govern-

ment in its opening informed the jury

that, using Cain's card, the defendant

“made various charges in various parts

of the United States, Puerto Rico, and

the Virgin Islands ***,. (T)here was a

total of more than $4,000 in fraudulent

charges ***, (I)n the Virgin Islands

alone there was a total of nine charges

totalling $2,244.27."

"The government claims that such evidence

was admissible as proof of a course of

conduct to show wrongful intent. We

have considerable question; this would

not seem a case of ambiguity. Cf.

United States v. eet kee ee Se cir.,

1966, F. Uni tates v.

Prince, 3 Cir., 1959, 264 F. 2d 850.

If defendant was the user of a credit

card that did not belong to him, his

wrongful intent would seem inevitable.

Hence reference to other occasions

cast no additional light, but would merely

serve to prejudice the jury be indicating

other crimes. Government of the Virgin

Islands v. Oliver, 3 Cir., 1966, 300 F.

2d 297. But quite apart from this,

admissibility of the other occasions

presupposes that defendant was the one

who made the other purchases. All the

government offered to support ‘ts open-

ing was that, on the American Express

records, charges in the amount asserted

had been made against the card. Instead

of this evidence adding probative weight

to the case against defendant, it

assumed, rather thanproved, that de-

fendant had been the one to use the card,

the essential question at issue."

“During oral argument government counsel

frankly conceded what we had already

inferred, iuat inese other charges had

not been proceeded upon because the

identification evidence with regard to

them was unsatisfactory. If it could

not be proved that defendant effected

these charges, they had no place in

the case. The court's exclusion of the

government offer of proof of other un-

authorized charges against the card was

clearly correct, and by the same token

the government's opening was unsupported,

and hence improper. Furthermore, the

government had good reason to know it

was unsupported.

Only with great hesitation do we find

errors of this magnitude to be non-

prejudicial. The court's exclusion of

the proferred evidence in the presence

of the jury and its general charge not

to regard statements of counsel as

evidence, helped, but it may be questioned

whether this was enough to offset the

BPR Se ee

effect of the opening. A jury may not

easily forget or overlook what it has

been told by a government representative,

particularly in the absence of more

specific directions to do so. However,

in this case we find the government's

evidence against this defendant so

overwhelming that it is difficult to

see how an unfulfilled statement that

there was more could have made any

difference. On the evidence introduced

we cannot see how any jury could have

failed to find the defendant guilty.

Under these exceptional circumstances,

we will not hold the over-ambitious

opening to have been prejudicial error.

See Berger v. United States, 1935, 295

U.S. 78, 55 S.Ct. 629, 79L.Ed.1314,

citing Fitter v. United States, 2 Cir.,

1919, 258 F. 567; cf. Chapman v. State

of California, 1967, 386 U.S. 18, 87 S.

Ct. 824, 17 L.Ed. 2d 705."

In the present case, the government's

case against Petersen was far from overwhelm-

ing.

During the course of the trial other

prejudicial statements and misstatements

were made:

BY MR. LIVINGSTON:

“Specifically, sir, do you have any

telegrams from one Frank Crawly, Shawnee,

Oklahoma, from one imet J. Petersen?”

(Tr. 19, Emphasis added)

At Tr. 110, Mr. Livingston was admonished

by the Court after he stated:

"Did they make any claims that you had

misrepresented some of the facts?

COURT

“Rephrase your question. "

Mr. Livingston constantly made reference

to Mr. Frick and Petersen in his questions,

indicating to the jury he believed that either

or es were involved. (Tr. 108 125, 127,

132

At Tr. 212, Mr. Livingston attempted to

get prejudicial evidence to the jury:

"Mr. Crawly, do you know whether or not

Mr. Richard Suttle or Dick Suttle lost

any money to these gentlemen?"

to which the objection made by counsel for

Petersen was sustained. However, the damage,

by that time had already been done.

In addition, Mr. Livingston had G-25

blown up, and made many comments on this and

other issues in his closing argument which

were completely prejudicial to defendants,

were highly inflammatory, and which tended

to cause the jury to enter a verdict of

guilty in the absence of proper evidence.

With regard to Mr. Livingston's unsworn

and incorrect testimony concerning Tangible

Risk Insurance Company, Your Honors should

consider that the evidence did not bear out

either the indictment or the statements of

the prosecutor that Tangible Risk Insurance

Company was name only and did not exist.

The only mentions of Tangible Risk in the

record were at Tr. 123, 141, 146, 172, 206,

219-221, and 252-253. Nowhere was it proven

that Tangible Risk did not exist. In fact ,

as has been discussed, the Government supress-

ed evidence and witnesses in its possession

and under its control which established the

existence and activity of Tangible Risk

Insurance Company.

A review of the closing argument will

reveal that the prosecutor had, for the

purposes of the case, substituted himself

as first person singular, for the impartial

status that the Government is supposed to

take.

Other examples of the improprieties

of the prosecutor in his closing statement

are as follows (page numbers are taken from

the latest volume of material which was

transcriwed)

"We feel that after looking at those

exhibits, you will in fact return a

verdict of guilty." (p. 88, emphasis

added)

"Now, really the evidence is quite clear

that the acts were committed. The

acts themselves." (p. 89)

"There is no doubt about the act."

(p. 91)

"I don't know what happened to that

check, but it's around here somewhere,

and if you find it, I hope you will

recall that act is proved." (p. 92,

emphasis added)

“His Honor instructed that we need only

prove one act. I submit to you we

proved all acts." (P. 92)

"I think we have ample evidence, the

documents, to show that he complied

with every condition that was made of

him, but he didn't get anything but a

lot cf phoney promises." (p. 93)

a ae

(See Hall v. United States, 419 F.2d

$62, San Cis.)

"No doubt about it, ladies and gentlemen,

the acts were committed, all of them

were definitely committed." (pp. 97-98)

"We submit that the Tangible Risk

Insurance Committment letter didn't

bind Tangible Risk. It didn't bind

anybody because there was no tangible

risk." (p. 100)

"International Fund, I think, in the

Paul Harrell matter was never really

showed to exist." (P.102) (emphasis

added)

"There is evidence that Tangible Risk

doesn't exist. We have introduced G-26

and G-27, certificates from the sec-

retaries of the State of Louisiana and

Oklahoma saying that neither company

is qualified to do business in either

state." (p. 103) :

Note how the prosecutor has backed off some

small amount from the statement in the

opening statemeni that "We are going to

prove that Tangible Risks Insurance Company

og a name only, *** (opening statement p.

“Ladies and gentlemen, I really hate

to beat them into the ground, it's so

obvious from all this evidence, if it's

not, all I can say is listen to the

testimony of Mr. Bourland."“ (p. 105,

emphasis added)

“Again, what's the purpose of the odd-

ball names, the phoney names?

Bien nesrs ” + : ’ EHES FRR

"It doesn't make sense, ladies and

gentlemen, if this is a legitimate

deal." (p. 106)

During the initial closing argument,

the prosecutor “testified" concerning

Government Exhibit G-25, the so-called

"sucker" exhibit, as follows:

"Now, this is a typical committment

letter, -- agreed to arrange a loan,

it's hereby agreed, read the whole

form at your leisure, ladies and gentle-

men, and when you read it for your ease

in seeing this, I am going to ask you

to look specifically at the bottom of

the form.

There is a space for Mortgage Corporat-

ion of America or Mortgage Consultant

Associates in this case, signed, two

spaces, and a space down here for the

witnesses to sign, and there is one |

other space, and I have blown this up

so that you can see exactly what that

other space is and see what these guys

think of their proposed customers or

clients, because I think you may have

anticipated what I was going to show you,

if you haven't, take a look at this work

right here, accepted, sucker. That

was found on Frick's person, ladies and

gentlemen, that's what he thought of

the men that paid them Money to give

them loans.

Ladies and gentlemen, if you can't look

at that and find intention to defraud,

then you will never find it. So I can't

argue any further. :

I have to yield to counsel. I'd rely

on that."

‘ye

¢ a ae . Oe Se Se Ee

We ask that you find the defendants

guiity as charged."

This certainly is prejudicial, and takes

away from the jury their function as finders

of fact, by leaving them no alternative but

to find in favor of the government.

Furthermore, in the rebuttal closing

argument, the prosecutor made a comment on

the failure of the defendants to have a

certain person testify, to wit: M.A. Green.

"Mr. Smith wasn't there. Mr. M.A. Green,

whose name is on that committment letter,

wasn't there. Nobody is there to this

day. They never met anyone from Tangible

Risk. And I ask you, ladies and gentle-

men, if this trial is as important as

both counsel would have you believe,

where is Mr. M.A. Green? Where is the

representative--representative of Tan-

gible Risk or International Funding or

any one of these other companies?"

The Government knew of the existence and

whereabouts of officers and agents of Tangible

Risk, and failed to disclose the same, in the

same way that it knew about Tangible Risk

and other similar matters and refused to

disclose these matters.

With regard to Tangible Risk, the pro-

secutor then stated as follows:

"It doesn't matter whether or mt there

is a Tangible Risk somewhere in the

world.

The big thing is that there has never

been indicated to Mr. Crawley that

there is a Tangible Risk."

Beas, see PEN OE EE

I think when you say that Tangible Risk

is not quaiified to do business either

here or in Oklahoma that does mean some-

thing, and in fact Tangible Risk never

did exist."

He then began his own testimony once

again:

"But I ask you also in -- when you sit

down to ponder whether or not Petersen

had anything to do with this fraud

scheme, it was a fraud scheme, I think

by this time it must be fairly obvious

to you that the fact that Kim Petersen

under the name of Traver gave Claude

Bourland $100,000.00 worth of no-good

checks means he had intent to defraud.

Thet was before the Crawley matter.

But after the Crawley matter, Mr. Frick

was picked up with certain things in

his possession, and among those things

was his letter with Kim Petersen and

Bob Frick, and if this thing doesn't

indicate an intention to defraud,

then nothing does. They call their

clients suckers."

Finally Mr. Livingston made his final

personal plea to the jury:

"I am asking you to believe Mr. Crawley.

I am asking you to believe every witness

that testified. I think if you do, you

have got to find a verdict of guilty as

to both defendants.' (p. 165)

Activity of prosecutors less cruciai

and flagrant has uniformly been held to be

prejudicial misconduct, properly requiring

reversal. Reeves v. Warden, Maryland

PLONE RE A ta o>

Penitentiary, 346 F. 2d 915, 922 (4th cis. ,

1965); Corley v. United States, 365 F. 2d

884 (D.C. Cir., 1966); United States v.

Simmons, 414 F. 2d 800 (9th Cir., 1969). in

Jones v. United States, 338 F. 2d 553, 554,

the Court reversed a conviction for this

type of misconduct, stating:

"In her opening statement the prosecuting

attorney told the jury that the Govern-

ment's witness ‘observed one of (the

defendants) come out from the doorway

of that store. He observed them

apparently working or loading something

into their Volkswagen truck.' But the

proof did not bear this out. The

witness did not testify that he had

seen one of the defendants ‘come out

from the doorway" or that he had seen

them apparently working in or loading

something into their Volkswagen truck. "

The prosecuting attorney nevertheless

pressed the point: ****

"Thus on three separate occasions during

a one-day trial, Government counsel

sought to shore up obvious weaknesses

in the Government's case. It is true

that the court instructed the jury

that the opening statement of counsel

was not evidence. It is also true

that the answers to the questions con-

taining the factual assertions denied

them and that the jury was instructed

to disregard one of the questions.

Nevertheless, we are not in a position

to say, in a case as paper-thin as

this one appears to be, that the

suggestions contained in the opening

statement and in the questions were

not responsible, in some degree at

least, for the convictions in these

cases,"

It is clearly improper for a prosecutor

to express his personal opinion in his jury

argument. Rule 15 of the Canons of Pro-

fessional Ethics (D.R. 7-106 (c) (4)), Dunn

v. United States, 307 F. 2d 883, 88 (5th Cir.,

1962). In Hall v. United States, 419 F. 2d

582, 585-587, (5th Cir.,\ 1969) The Court

reversed a conviction for improprieties of

this same type by the prosecutor, stating:

“The voucher for Degnan's personal in-

tegrity was blatantly improper. It

invaded the province of the jury. It

went beyond credibility to general

integrity, implying that Degnan was

not the sort of person who would force

a witness to make a statement. It was

not merely based inferentially on a

extrinsic evidence but explicitly upon

the prosecutor's extrajudicial knowledge

of Degnan and his opinion based on that

knowledge. This court reversed for the

personal voucher for the witness in

Gradsky v. United States, 373 F. 2d

706 (5th Cir. 1967). Here, as there,

the jury was led to believe there was

evidence unknown or unavailable to

the jury that established credibility."

Compare the following from Hall v. United

States, supra at 587.

"3. The statement ‘we try to prosecute

only the guilty.'

‘The statement ‘we try to prosecute only

the guilty' is noi defensible. Ex-

pressions of individual opinion of guilt

are dubious at best. See part 2, supra.

This statement takes guilt as a pre-

determined fact. The remark is, at

the least, an effort to lead the jury

to believe that the whole governmental

WETS BOR yee ade eK Y

establishment had already determined

appellant to be guilty on evidence not

before them. McMillian, supra, 383 F.

2d at 169. Or, arguably it may be con-

strued to mean that as a pretrial

administrative matter the defendant has

been found guilty as charged else highly

persuasive to it. Appellant's trial

was held and the jury impaneled to pass

on his guilt or innocence, and he was

clothed in the presumption of innocence.

The prosecutor may neither dispense with

the presumption of innocence not denigrate

the function of the trial nor sit as

a thirteenth juror."

Please also see Harris v. United States,

402 F. 2d 656 (D.C. Cir. 1968), Reichert v..:

United States, 359 F. 2d 278, 281 (D.C. Cir.

1966), and United States v. Lamerson, No. 71-

2353. (50h Cir. 2972):

With reference to this whole matter,

please see Smith v. United States, 312 F.

2d 867 (D.C. Cir., 1962), Hull v. United

States, 324 F. 2d 817 (2d Cir., 1963),

United States v. Porter, 432 F. 2d 548 (9th

Cir., 1970), and especially The Court

opinion in Hall v. United States, supra at

588 where the Court states:

"When zeal does outrun fairness and the

prosecutor makes inappropriate state-

ments there is a multiple effect which

tends to tip the scales in favor of the

government. Ordinarily government

counsel is, as an individual, ‘properly

and highly respected by the members of

the jury for his integrity, fairness,

and impartiality' Thompson v. United

States supra 272 F. 2d at 923 (con-

curring opinion). And, as Berger

points out, 295 U.S. at 88, 55 S. Ct.

—— EERE AD CELT RETIRE TY ONY Se NY PMR By Nae IER AE TLR LT ON

at 633, 79 L.Ed, at 1321:

"Tt is fair to say that the average jury,

in a greater or less degree, has con-

fidence that these obligations, which

so plainly rest upon the prosecuting

attorney will be faithfully observed.

‘Consequently, improper suggestions,

insinuations, and; especially, assertions

of personal knowledge are apt to carry :

much weight against the accused when they

should , Properly carry none.'

“Added to this is the unseen presence’

in the courtroom of our great and power-

ful government with its counsel and its

' voice in the person of the United States

Attorney. For all these reasons his

power to persuade is great. And for

these reasons he must speak with the

care, the decorum and the sensitivity

that befit his position and his duties.

Neither the heat and strain of trial

nor the right to strike hard blows

authorizes him to do otherwise.‘ "Re-

versed. "

Clearly this case presents a situation

in which the improprieties of the prosecutor

were on a central point, where nothing was

done by the Trial Judge to mitigate the da-

mage, and where the case against defendant

Petersen was so weak as to be yg Tl

United States v.:Simmons, 414 F. 2d 800

(9th Cir. 1969).

In U.S. v. Ott, 14 Crl. 2257 (7th Cir.)

December 5, 1973 the Court held that a pro-

secutor's false statement about an informer

required reversal. The prosecutor had

argued to the trial court that a certain

witness was not an informer, but the

government had recently argued'‘in.a search

RAPHE CARRIE RSIS H EN MNT AE Bh “SR RN aI

RPMRSIAIE RON TS!

and seizure appeal before the Appellate

Court that the same man was a reliable in-

former and the Appellate Court discovered

. this during oral argument. The Court said:

"We assume that the denial by the trial

attorney was made in good faith in the

sense that he did not know that his

representation was factually erroneous.

Nevertheless, when an unequivocal material

representation of this kind is made to

the trial judge for the purpose of

persuading him to make a ruling favor-

able to the government, the prosecutor

is charged with the knowledge of his

associates. Whether the misstatement

‘was a result of negligence or design,

it is the responsibility of the pro-

séecutor. The prosecutor's office is an

entity and as such, it is the spokes-

man for the Government.' Giglio v.

U.S., 405 U.S. 150, 10 CrL 3080.

The remarks made by the prosecutor during

his opening statement, durin, the trial, and

in the closing remarks were so blatant, ob-

vious and prejudicial as to call into question

the fundamental fairness of the entire pro-

ceedings against the defendants. It is

respectfully submitted that the case should

be reversed and remanded for trial with the

petitioner being given a trial free from the

prejudicial interference and active mis-

statements of the counsel for the United

States.

Biwi. SET TOMATO AEM ARIUS RELY SR RY RRNA PPR INCE RT MAS BRR ERE D>, Deere oo

IV. THE TOTALITY OF THE CIRCUMSTANCES SUR-

ROUNDING THIS CASE CONSTITUTE A DENIAL

OF A FAIR TRIAL AND DUE PROCESS OF LAW

IN LIGHT OF THE DECISIONS OF THIS COURT

AND OTHER UNITED STATES COURTS OF APPEAL.

(1) Severance was required in this case.

(2) The so-called "sucker" exhibit was

erroneously introduced and allowed

to the jury and the prejudice to de-

fendant Peterser was compounded by

allowing the Prosecutor to blow up

the exhibit and refer to it in his

closing argument.

(3) The refusal of the trial judge to

permit questions proposed by the de-

fendant to be put to the jury on

voir dire examination and in allowing

two juries for unrelated cases to be

selected at the same time resulted

in prejudice to the defendants suf-

ficient to require reversal and re-

trial.

(4) The Pifth Circuit decision to uphold

the refusal of the Trial Judge to

grant a continuance after his unex-

pected changing of his previous

granting of the Motion to Sever re-

quires reversal and retrial.

(5) The Trial Court was in error in or-

dering each juror to receive a copy

of the six (6) page indictment as

this was improper and prejudicial

to the defendants.

(6) For the Trial Judge to have allowed

the Government to present evidence.

of other crimes involving different

and inflaming circumstances re-

quired reversal of the conviction.

(7) The motion for judgment of acquit-

tal made on behalf of defendant

Petersen should have been granted.

(8) The Trial Court was in error upon

the sentencing of the defendant in

taking into consideration the evi-

dence of the alleged use by defend-

ants of assumed names on occasions

other than those charged.

(9) A Trial Judge may not impose a

greater sentence upon a defendant

merely because he chooses to exer-

cise his constitutional right to

trial by jury.

(10) The Trial Judge was in error in

failing to instruct the jury that

circumstantial evidence to support

a conviction need to negate every

reasonable hypothesis of defendant's

innocence.

(11) fhe instruction given to the jury

that "It's not necessary to deter-

mine whether Mr. Petersen was a mem-

ber of a conspiracy” was plain error.

(12) Error was committed in instructing

the jury to disregard the testimony

of witness Franks as to the spon-

taneous exclamations of defendant

Petersen, uttered contemporaneously

with the alleged crimes.

Severance was required in this case. A

joint trial of this matter was inappropriate

in that it sacrificed the right of peti-

tioner Petersen to a fundamentally fair

trial. United States v. Echeles, 352 F.2d

892 (7th Cir. 1965).

The majority opinion of the Fifth Cir-

cuit relied on Petersen v. United States,

344 F. 2d 419 (5th Cir. 1965) in upholding

the discretion of the trial judge in denying

severance. This case in turn derived its

test for severance from United States v.

Kahaner, 203 F. Supp. 78 (S.D.N.Y. 1962).

This test is as follows:

"The ultimate question is whether

under all the circumstances of the

particular case, as a practical

matter, it is within the capacity

of the jurors to follow the court's

admonitory instructions and accord-

ingly to collate and appraise the

independent evidence against each

defendant solely upon that defend-

ant’s own acts, statements, and

conduct. In sum, can the jury keep

separate the evidence that is rele-

vant to each defendant and render

a fair and impartial verdict as to

him? If so, though the task be

difficult, severance should not

be granted. *

Under the circumstances of the case at

bar, the task of rendering an impartial and

fair verdict was not merely difficult, it

was impossible. Defendant Petersen was caught

in a web of circumstantial evidence and as the

real evidence piled up against Frick, Petersen

was dragged down via “guilt by association."

The Fifth Circuit also overlooked the

potential for Prick testifying in behalf of

Petersen at a separate trial. See United

States v. Shuford, 454 F. 2d 772 (4th Cir.

1971).

It should be noted that at the joint

trial there was no way for Petersen to require

Prick to take the stand. At a separate trial,

or with a joint trial before two different

juries, as was originally planned, while Frick

would retain his privilege against self in-

crimination, he would not have a right not to

be called to the stand. See Landry v. United

States, 283 F. 2d 303.

- a

The so-called “sucker” exhibit was erron-

eously introduced and allowed to the jury that

the prejudice to defendant Petersen was com-

pounded by allowing the Prosecutor to blow up

the exhibit and refer to it in his closing

argument.

During the course of agent McDaniels'

testimony, the Government successfully at-

tempted to introduce the documents which

were contained in the briefcase found in the

vehicle of defendant Frick. One of those

documents was 6-25, which was a piece of

stationery under the letter head of Mortgage

Consultant Associates, at an address other

than that of Mortgage Corporation of America.

On this letterhead was written the rought draft

of a loan brokerage agreement, on which the

word “sucker” appeared beneath a rough draft

signature line.

The United States Attorney had already

testified concerning this exhibit during this

opening argument:

“We will show that in fact they went

so far as to call their client or

their cus-:omers what they really

thought of them. On one occasion

they called their client a sucker."

(Opening Argument page 11)

In the closing arguments, the United

States Attorney continued in this prejudicial

vein.

What did the testimony and evidence

actually prove? As incredible as the prior

statements of the Prosecutor make this sound,

the proof established not that this document

was in the handwriting of Frick or Petersen,

but that in fact that the handwriting analysis

could not establish that either of the de-

fendants had written this.

MR. LIVINGSTON:

“Your Honors, the FBI laboratory in

Washington made a comparison of the

writing on G-25 and could not pro-

perly compare that or could not reach

any results in their comparison to

Signature cards obtained from--the

signatures of the two defendants one

way or the other with no results.

(Tr. 389)

The instruction given by the Judge Tr.

383 considering the inflammatory nature of

the exhibit the statements of the prosecutor

and the lack of foundation was totally in-

adequate. In addition, nothing whatever

could possibly have connected this to Peter-

sen.

The use of the enlargement was highly

improper because its mere size must have

falsely impressed the jury with its signi-

ficance. There can be no doubt that by the

use of the enlargement, the prosecutor, in

the eyes of the jury, bridged the gap

between the exhibit and the defendants which

he had been unable to do previously by proper

methods.

The refusal of the Trial Judge to permit

questions proposed by the defendant to be put

to the jury on voir dire examination and in

allowing two juries for unrelated cases to be

selected at the same time resulted in preju-

dice to the defendants sufficient to require

reversal and retrial.

At the pretrial conference and before,

the defendants had been informed of the

Government's intention to place before the

jury evidence of other similar factual situ-

ations by which the Government hoped to prove

system and intent. The Trial Judge was in er-

ror in failing to allow the defendants to sub-

mit to the jury, on voir dire, questions which

probed the effect on the individual jurors

that defendants may have used aliases in these

other factual situation, and also whether they

could disregard that portion of the system and

intent evidence that would tend to’ strengthen

the Government's case in chief.

These voir dire requests were apparently

derived from United States v. Napoleone, 349

F. 2d 350 (3d Cir. 1965), and the refusal to

give a similar instruction in that case was

held to be reversable error. Please also see

Brown v. United States, 338 F. 2d 543 (D.c.

Cir. 1964), 8 Moore Sec. 24.03 p. 24-32, 33.

In a comprehensive charge to the jury,

the Judge covered the recognized rules for

weighing and evaluating the testimony of

witnesses.

In this case, although the Court upheld

the Judge's discretion in refusing to ask the

question, the factors that influenced the

Court's decision were that the Judge had

covered the points of the question in other

questions and phases of the trial, namely in

his instructions to the jury.

Such unfortunately was not the case at

the trial of Mr. Petersen. In the absence of

any action by the Judge to cover the points

of the questions through instructions or otler

questions, Mr. Petersen was denied an impar-

tial jury by not being allowed to probe the

effect on the individual jurors that the de-

fendant may have used aliases not in the situ-

ation for which the indictment had been hand-

ed down, but as to other factual situations,

and also whether they would disregard that

portion of the system and intent evidence

that would tend to strengthen the Government's

case in chief. This denial of an opportunity

to select an impartial jury is sufficient to

require reversal and the grant of a new trial.

Please also see Aldridge v. United States,

283 U.S. 308, 51 S. Ct. 470 (1931). Sellers

v. United States, 271 F. 2d 475 (D.C. Cir.

1959). Jackson v. Commonwealth, 323 S.W. 2d

874, 875 (Ky. App. 1959) City Transportation

v. Sission, 365 S.W. 2d 216 (Tex.

Civ. App. 1963).

Even more prejudice to the defendants was

the selection of two juries from the same

venire. Defendant is unable to recall the

exact particulars, but recalls that there was

a great deal of confusion in that both sets

of juries were being voir dired at the same

time, and it was not certain which jurors

_were being picked for each case.

Under such circumstances, the plain terms

pee PPB ee tres gee mene

one ae me A

of F. R. Cr. P. Rule 24 (a-b) were violated

in that the defendants did not have the op-

portunity to make a proper voir dire and

jurors were excused in such a manner that

counsel for defendant Petersen was unable to

meaningfully utilize his peremptory challenges.

This too should be ground for reversal

and retrial.

The Fifth Circuits decision to uphold the

refusal of the Trial Judge to Grant a Continu-

ance after his unexpected changing of his pre-

vious granting of the Motion to Sever requires

reversal and retrial.

During the whole of the -pre-trial pro-

ceedings, defendant Petersen was represented

by Corwin Reed, Esq. It was only two weeks

before the scheduled trial on the merits that

he retained new counsel. Mr. McGuire prepared

the case on the assumption that there would

be trial before a dual jury and that Frick

would be available to be called as a witness

on behalf of Petersen.

The failure of the Trial Judge to order

a continuance to allow further preparation in

light of the changed situation on the trial

clearly and severely prejudiced defendant

Petersen. Please see Scott v. United States,

263 F. 2d 398 (5th Cir. 1959), which involved

the inability to be able to call a co-defend-

ant, who was not being tried at the same time,

United States v. Millican, 414 F. 2d 811 (5th

Cir. 1969) and United States v. Ploeger, 428

F. 2d 1204 (6th Cir. 1970). In addition

this was the first continuance which would

have been given in this matter. See also,

Sykes v. Commonwealth of Virginia, 364 F.2d

ER OES PS ct NN EE PS IS PRP:

314 at 316 (4th Cir. 1966), People v. Butcher,

79 Cal. Rptr. 618 (Cal. App. 1969).

. The statement of the Supreme Court in Un-

gar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841,

849 (1964) is applicable to the present matter:

"(A)myopic insistence upon expeditious-

. ness in the face of a justifiable request

for delay can render the right to de-

fend with counsel an empty formality."

Under the circumstances of this case, it

is respectfully submitted that the District

Judge was in error in failing to grant the

continuance requested and further that this

error was sufficiently prejudicial to the peti-

tioner to constitute a denial of a fair trial.

‘

The Trial Court was in error in ordering

each juror to receive a copy of the six (6)

page indictment as this was improper and pre-

judicial to the defendants.

In upholding the Trial Judge's decision

to give a copy of the indictment to each of

the jurors, the Fifth Circuit cited United

States v. Baker, 418 F. 2d 851 (6th Cir. 1969),

cert. denied. 397 U.S. 1015 (1970). In that

case, it was held to be error for the Judge

to give copies of the indictment to the jury

absent proper instruction. Therefore, the

test would be whether or not the judge gave

‘proper instructions in the present case.

Judge Rubin instructed the jury that the al-

legations of the indictment (many of which were

not proven, nor even attempted to be proven by

the government) were not evidence. Was this

enough? It would seem not. For instance,

in Court I, Overt Act D, it is stated,

“ pail

"On or about May 17, 1971, at New

Orleans, Louisiana, the Defendants,

Robert Lee Frick and Quimet John

Petersen met with Frank Crawley,

III, and obtained a check for

$4,677.50 and $937.50 in cash."

And yet the evidence at the trial was to the

effect that Petersen was not even present

when the check was passed (Tr. 75), and

Crawley gave Frick the cash to keep for him-

self and not to be turned over to his superi-

ors (Tr. 143).

Ower Act E states: "On or about May 29,

1971, the defendants, Robert Lee Frick and

Quimet John Petersen caused Frank Crawley,

III to wire $1,000.00 to Quimet John Peter-

sen at New Orleans, Louisiana." But the

evidence established that only Frick request-

ed the money to be wired to Petersen (Tr.

100-101) and there was further evidence to

establish that the reason that Frick request-

ed the money to be wired to Petersen was that

Frick was to be out of town.

The combined effect of the affirmative

misstatements of the Prosecutor when coupled

with the strong terms of the indictment

(which were not proven) resulted in the jury

being unable to separate evidence which they

had heard during the trial from the affirma-

tive averments of the indictment.

This action of the Trial Judge in allow-

ing the indictment to go with the jury, when

considered with all of the other errors which

concerned the jury, could not help but cumu-

late to the mutual disadvantage of the defend-

ants, and is accordingly a justification for

reversal of this matter and retrial upon re-

mand. In addition, the indictment as drawn

was improper and prejudicial to the defendant.

For the Trial Judge to have allowed the

Government to present evidence of other crimes

involving different and inflamming circum-

stances required reversal of the convictions.

Much was made by the Prosecutor that in

the factual situations presented to the jury

supposedly to show system and intent, the

defendants allegedly used aliases.

Additionally, the voir dire question

concerning the use of aliases was not given

and the voir dire was not transcribed, leav-

ing this Court in the dark concerning the ef-

fect of such statements on particular jurors.

(which is reversible error, See Stirone v.

United States, 341 F. 2d 253 (3d Cir. 1965)

at 255 n. 4, cert. denied, 381 U.S. 902, 85

S.Ct. 1446, 14 L. Ed. 2d 284 (1965))

The prosecutor made much of the use of

aliases in the closing argument, and the in-

structions given by the Trial Judge did not at

all advert to anything which would have tend-

ed to disuade the jury from allowing such

overemphasis to be given the alleged use of

aliases.

Under such circumstances, the system and

intent evidence should have been excluded and

its inclusion was,most prejudicial and re-

quires reversal. Sand Soon Sur v. United

States, 167 F. 2d 431 (9th Cir., 1948).

e 7

The motion for judgment of Acquittal

made on behalf of defendant Petersen should

have been granted.

TERR SECO. eee

As has been set forth hereinabove, even

taking the Government's evidence at face

value, the evidence was insufficient to sup-

port a conviction of defendant Frick much

less defendant Petersen. Particularly weak,

as shown above, was the evidence other than

the statements of the prosecutor concerning

Tangible Risk Insurance Company. The exis-

tence, vel non, of Tangible Risk was clearly

the keystone of the Government's whole case.

There was not one word of proof that the

Tangible Risk committment was not good when

made. Indeed Crawley testified that he never

attempted to locate or make demand upon Tan-

gible Risk (Tr. 141). As the material in

the file of the prosecutor demonstrated,

Tangible Risk does in fact exist.

The evidence is entirely lacking to sup-

port a conviction of Petersen on any of the

Counts of the indictment. The Government's

own witness testified that Petersen was not

involved in this particular transaction (Tr.

164) Indeed the prosecuting witness con-

tacted Petersen at the insistence of the

FBI on July 14, 1971 and after all of the

matters in the indictment had been completed.

This meeting confirmed only that Petersen

knew nothing of this particular transaction.

The evidence is undisputed that Petersen

“~had no connection whatsoever in any of the

matters alleged in the indictment other than

the $1,000.00, which Frick had requested

Crawley to mail to Petersen. Crawley did

not even know Petersen at this time and tele-

graphed the money to a "Que" Petersen, Craw-

ley only finding out later who Petersen real-

ly was (Tr. 165).

Indeed, there is no evidence to suggest

that Petersen was anything more than Frick's

Wrerriiongew,

74 |

Chauffeur in this particular transaction.

Crawley knew it and even after the transac-

tion had soured in his estimation, he still

referred to Frick as the only person in-

volved (Tr. 165).

Under such circumstances, it has been

held that the evidence was insufficient to

support convictions on indictments brought

under 18 USC 1341. Please see Henderson v.

United States, 425 F. 2d 134 (5th Cir. 1970).

at 140-143 and cases therein cited. Please

also see United States v. Marino 421. F.

2a 60 (2d Cir. 1970).

The system and intent evidence that Frick

and Petersen may have used assumed names on

other occasions lends no support to the con-

viction on this indictment in that in this

particular case, they were known by their

right name.

As to the offense charged (as distin-

guished from the system and intent offenses),

the only evidence against Petersen is purely

circumstantial, and fails to exclude the en-

tirely reasonable hypothesis that Petersen

and Frick had ceased doing business under as-

sumed names; that Petersen had nothing what-

ever to do with the particular transaction

charged in the indictment; or that Petersen

was anything more than Frick's chauffeur at

the time of the instant transaction. .

- In the case of Vick v. United States,

the United States Court of Appeals for the

Pifth Circuit stated that:

In circumstantial evidence cases,

this Court has said repeatedly

that to’ sustain conviction tue

inferences reasonably to be drawn

from the evidence must not only

——— ; — a ers eemaeneany BF

be consistent with guilt of the

accused but inconsistent with every

reasonable hypothesis of his inno-

cence.

Vick v. United States, 216 F.2d 228, 232

(Sth Cir. 1954). See also Hale v. United

States, 510 F. 2d 147, 149 n. 3 (5th Cir.

1969). South v. United States, 412 F.2d 697,

699 (Sth Cir. 1969).

The Fifth Circuit in ntoya v. United

States, 402 F.2d 847, 850 (och Cir. 1968)

reversed the failure to grant such a motion.

The Trial Court was in error upon the

sentencing of the defendants in taking into

consideration the evidence of the alleged

use by defendants of assumed names on occa-

sions other than those charged.

Trial Court sentenced defendants to pri-

son terms rather than to probation partly on

the basis of their having used assumed names

on occasions other than those charged. Sup-

plementary Transcript, p. 4. Defendants used

their correct names at all times relevant to

the, offense charged in the indictment. The

effect of the Trial Court's action is to bur-

den defendants down with phantom "prior con-

victions" for which they never have been

convicted, and for which they still might

be charged and tried. Since the Trial Judge

admittedly sentenced defendants for crimes

other than those charged in the indictment.

Your Honors have juriSdiction to reverse the

sentences and to remand the matter to the

trial court with instructions to resentence

defendants solely on the basis of the of-

fenses for which they were convicted.

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2 A CRN ER

A Trial Judge may not impose a greater

sentence upon a defendant merely because he

chooses to exercise his constitutional right

to trial by jury.

In sentencing defendant Petersen, a

father of three, a family man, and a first

offender, the Trial Court made it clear that

the reason for imprisonment rather than proba-

tion was to punish Petersen and Frick for

having “put the government to the expense

and difficulty of a rather honoris (onerous)

trial." Supplementary Transcript, p. 5.

Incarceration for having exercised a

constitutional right is foreign to our legal

system. Your Honors should reverse as illegal

such a sentence, in that no possible exercise

of discretion could justify such a statement

and apparent open disregard for the rights of

an accused.

Please see United States v. Schmidt,

376 F.2d 751 (4th Cir.), cert. denied, 389 U.S.

884, 88 S.Ct. 158, 19 L.Ed.2d 183 (1967).

United States v. Wiley, 278 F.2d 500 (7th Cir.

1960).

In the case at bar, it would be a vain

and useless thing to move this Court for a

reduction of the sentence it has just im-

posed. United States v. Stromberg, 179 F.

Supp. 278 (S.D.N.Y. 1959). Appeal is the

proper remedy to correct an illegal sentence.

Cook v. United States, 171 F.2d 567, 569 (lst

Cir. 1948), cert. denied, 336 U.S- 926, 69S.

Ct. 647, 93 L.Ed. 1088 (1949). But see With-

row v. United States, 420 F. 2d 1220 (5th Cir.

1969).

a ne eet oem a | Roe PSE ee eee eat

The sentence imposed upor defendant Peter-

sen is patently cruel, unusual, and an abuse

of judicial discretion. The sentences would

be reversed with instructions to the Trial

Court to resentence defendants under terms

no more severe than if defendants had pleaded

guilty.

10.

The Trial Judge was in error in failing

to instruct the jury that circumstantial evi-

dence, to support a conviction, needs to ne-

gate every reasonable hypothesis of defend-

ant's innocence.

Trial Judge simply neglected to instruct

the jury that circumstantial evidence must

negate every reasonable hypothesis of defend-

ants' innocence. Since the trial court did in

fact charge the jury on circumstantial evi-

dence generally (Tr. p. 456), the omission of

the necessary caution is plain error whether

requested or not. See United St<‘es v.

Schmict, 376 F.2d 751 (4th Cir.), cert. denied,

389 U.S. 884, 88 S.Ct. 158, 19 L.Ed. 2d 183

(1967). The rule would be otherwise if the

trial court instead had simply omitted to

charge on circumstantial evidence at all.

il.

The Instruction given to the Jury that

“It's not necessary to determine whether Mr.

Petersen was a member of a conspiracy" was

plain error.

Without any notice to defendant Petersen

or his counsel, the Trial Judge went outside

of the prepared jury charges which had pre-

viously been examined by counsel, and charged

the jury:

sare half b ible 4

“It’s not necessary to determine

whether Mr. Petersen was a member

of a conspiracy" Tr. 446

While the context of these words is am-

biguous, this fact alone makes the instruc-

tion confusing and prejudicial. In a case as

complex and unfamiliar to laymen as the case

at bar, it is plain error to so instruct the

jury, and it was not incumbent upon defense

counsel to notice the court's ad lib or to

request a correction of same, particularly

since, as here the Court had prepared and

distributed lengthy charges, and had in-

sisted upon objections in advance. United

States v. Schmidt, 376 F.2d 751 (4th Cir.

1967), cert. denied, 389 U.S. 884, 88 S.Ct.

150, 19 L.Ed. 2d 183 (1967).

The confusing nature of such a charge

tended to make the jury rely the more on the

plain statements of the indictment and on the

prejudicial pronouncements of the prosecutor. —

12.

Error was committed in instructing the

jury to disregard the testimony of witness

Franks as to the spontaneous exclamations of

defendant Petersen, uttered contemporaneously

with the alleged crimes.

The instruction of the Trial Judge to

disregard the testimony of Maurice Franks is

violative of the rule of Chambers v. Missis-

Sippi, 93 S.Ct. 1038 (1973).

In the Chambers cass, the Supreme Court

reversed the refusal of a state court to per-

mit into evidence so-called hearsay evidence

which was favorable to the accused.

Just as in the present case, the argument

“Bs

—_—

was made by the state that the testimony of

the witness was not "adverse" to, or “against”

Chambers. The Supreme Court found this argu-

ment not to be convincing and would have per-

mitted it to be intrcduced.

At the trial, defendant Petersen called

as his witness one Maurice R. Franks, a New

Orleans attorney who had handled some of de-

fendant's civil affairs. Mr. Franks told of

a conversation he had had with Petersen at

the very time the crimes allegedly were being

committed.

‘Defendant Frick objected (Tr. 399-403),

which objection was sustained by the court

on the grounds that Petersen's spontaneous

utterance was self-serving. (Tr. 403)

The statements are admissible as a part

of the res gestae and are not rendered inad-

missible simply because they are exculpatory

rather than inculpatory.

There can be no issue as to the factor

of proximity of utterance to the event, since

the remarks were made on May 31, 1971, while

the defendants allegedly were in the process

of conspiring and defrauding as charged. To

the extent that the factor of proximity rests

within the discretion of the trial court, the

honorable trial court abused its discretion.

See also Lambrecht v. Schreyer, 129 Minn. 271,

152 N.W. 645 (1915), Bennette v. Bader, 337

Mo. 977, 87 S.W. 2d 413 (1935) Roberts v.

United States, 322 F.2d 892 at 898 (8th Cir.

1964), United States v. Edmonde, 63 F.Supp.

968, 971 (D.C.D.C. 1946), United States v.

McIntire, F.2d (No. 72-1216), 5th

Cir., June 23, 1972.)

For these reasons, a writ of certiorari

should issue to review the judgment and

opinion of the Fifth Circuit.

Respectfully submitted,

LOUIS R. KOERNER, JR.

1111 Poydras Street

New Orleans, Louisiana 70112

(504) 581-9569

Counsel for Petitioner

May 13, 1974

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day

of May, 1973, three copies of the Petition

for Writ of Certiorari were mailed, postage

prepaid, to Mary Williams Cazalas, 500 St.

Louis Street, New Orleans, Louisiana 70130,

Counsel for the United States, Respondent.

I further certify that all parties required

to be served have been served.

LOUIS R. KOERNER, JR.

1111 Poydras Street

New Orleans, Louisiana 70112

Counsel for Petitioner

RRR Yen tee

USA. V. FRICK, 490 F.2d 666 {5th

Cir. Dec. 5,1973}) reh. & reh. en

banc denied March 15, 1974

United States Court of Appeals

No. 72-2275

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

versus

ROBERT LEE FRICK and

QUIMET JOHN PETERSEN,

Defendants-Appellants.

Appeals from the United States District Court for the

Eastern District of Louisiana

. (December 5, 1973)

Before GOLDBERG, CLARK and RONEY,

Circuit Judges.

RONEY, Circuit Judge: Defendants Frick and Pet-

ersen were convicted on five counts under 18 U.S.C.A.

§§ 2, 371, 1341 and 1343 of conspiring to defraud and

defrauding certain persons through a sham loan brok-

erage business by using the mails and interstate tele-

phonic communications. Only the question concerning

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 3

offense which includes, as an essential element

of the offense charged, possession of the seized

evidence at the time of the contested search

and seizure.

Brown v. United States, 411 U.S. 223, 229 (1973). Peter-

sen contends that he has met the “proprietary inter-

est” test by being in partnership with defendant Frick.

Partnership, however, did not give him a proprietary

interest in Frick’s attache case, the thing searched.

II.

For a warrantless search to be valid under the

Fourth Amendment, it must fall within one of the “few

specifically established and well-delineated excep-

tions.” Coolidge v. New Hampshire, 403 U.S. 443, 455

(1971). The case at bar meets the required exception

as a search incident to a lawful arrest.

[It] is reasonable for the arresting officer to

search the person arrested in order to remove

any weapons that the latter might seek to use

in order to resist arrest or effect his es-

cape. ... In addition, it is entirely reasonable

for the arresting officer to search for and seize

any evidence on the arrestee’s person in order

to prevent its concealment or destruction. And

the area into which an arrestee might reach

in order to grab a weapon or evidentiary items

must, of course, be governed by a like rule.

... There is ample justification, therefore, for

‘a search of the arrestee’s person and the area

PEE ESI LLIN LS SORES ERIE I mo

SSF Se TA TERN

2 U.SA. v. ROBERT FRICK & QUIMET PETERSEN

the legality of a warrantless search of defendant ‘

Frick’s briefcase requires discussion of the reasons

for our holding that the search was valid incident to

arrest. The other seventeen errors asserted by defend-

ants are subject to affirmance without extended dis-

cussion.

The mornirg after his indictment, defendant Frick

was arrested at his car in the parking lot adjacent

to his apartment building. At the time of the arrest,

F.B.I. Agent McDaniels spotted an attache case lying

on the back seat of Frick’s car, approximately two

feet from the defendant. Recognizing the attache case

as Frick’s and knowing that Frick had used it on nu-

merous occasions during his “loan negotiations,” Mc-

Daniels seized the case on probable cause that it con-

tained evidence pertinent to the arrest. An immediate

check of its contents bore out McDaniels’ suspicions:

the case contained documents used in the fraudulent

transactions. The defendants assert that the seizure

and subsequent search of the attache case without a

warrant violated Frick’s Fourth Amendment rights.

Only defendant Frick has standing to contest the

search and seizure. Under the test recently established

by the Supreme Court, defendant Petersen

(a) [was] not on the premises at the time

of the contested search and seizure; (b) had

no proprietary or possessory interest in the

premises; and (c) [was] not charged with an

“ ———— mcs

SE SELINA ORR, EES MAB ITS RETO IP PT et Py

4 USA. v. ROBERT FRICK & QUIMET PETERSEN

“within his immediate control” — construing

that phrase to mean the area from within

which he might gain possession of a weapon or

destructible evidence.

Chimel v. California, 395 U.S. 752, 763 (1969).

Although there is some dispute in the record as to

the exact distance between Frick and the automobile,'

and whether the door was open or closed, these dis-

crepancies become inconsequential when the reason-

ableness of the search is tested by the Chimel stand-

ard. The automobile and the attache case were withi»

the area of Frick’s immediate control. The attache

case was not isolated or hidden in some distant room

of the house or securely locked in the trunk of the

car. It was in plain view and readily accessible

to Frick. The possibility of it housing, not only the

evidence found, but also a dangerous weapon was not

remote.

The exigencies of the situation plainly justified Agent

McDaniels’ actions. The officers were dealing with ob-

jects which are extremely mobile: the automobile and

the attache case. There is the possibility that co-

defendant Petersen might have removed either of them

prior to the officers obtaining a warrant.* Some other

‘Agent McDaniels testified that the distance was 15 - 16 inches;

Frick, testifying before the magistrate, stated it was two feet.

2Defendant Petersen voluntarily appeared before the magistrate

after iearning of the indictmenis. The arresting officers did

not know of this. At the time of Frick’s arrest, two of the

officers had failed to locate Petersen at his residence and had

PPE EC ET BRO OY i aes ( SAT PE I POTN!

LOGS ‘ BR BIRT DELEON ENE SH

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 5

friend unknown to the officers might have done like-

wise. It would be reasonable to expect Frick would

be released on bond within short order and again be

free to exercise his control over the automobile and

the attache case.

To prevent these possibilities, Frick contends Agent

McDaniels could have stationed an officer with the au-

tomobile while another proceeded to secure the war-

rant, or in the alternative, that the officers take the

attache case but postpone their search until the impar-

tial magistrate issued a warrant. The defense over-

looks a vital Fourth Amendment interference: by sta-

tioning a guard over the car or removing the attache

case while securing the warrant, a definite “seizure”

would take place. This is an intrusion on the defend-

ant’s rights, just as much as the search.

For constitutional purposes, we see no differ-

ence between on the one hand seizing and hold-

ing a car before presenting the probable cause

issue to a magistrate and on the other hand

carrying out an immediate search without a

warrant. Given probable cause to search, ei-

ther course is reasonable under the Fourth A-

mend”uent.

Chambers v. Maroney, 399 U.S. 42, 52 (1970).

On facts similar to the case at bar, the Ninth Circuit

joined the other officers at Frick’s residence, in probability

expecting to possibly locate Petersen there.

i‘ SIG ENR PR LTE OLLIE LOE ET EDS LIEN PLL LAOLNO ELI L AE LPR SEE LES IAEA DAL

6 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

has recently ruled on the propriety of seizing an auto-

mobile or container located therein before obtaining

a search warrant.

Here the police might have seized the car

. pending a magistrate’s determination. This

would have been the lesser intrusion upon

Evans’ rights, but it would have been the

greater intrusion upon the rights of Miss Kane,

the owner of the car. On the other hand, it is

easy to say that the footlocker could be con-

fiscated by the police and taken to the magis-

trate, but a seizing would then have already

occurred — a substantial interference. Stand-

ing guard still represents the same interfer-

ence with property rights as well as an un-

necessary use of law enforcement personnel.

Under these circumstances, either course

might be reasonable under the Fourth Amend-

ment, but the immediate search was prefera-

ble. Given probable cause, we hold that the

necessary exigent circumstances were present

for a warrantless search.

United States v. Evans, ___ F.2d ___, _____ (9th Cir.

1973) [13 Crim. L. Rep. 2342, 2343 July 18, 1973]. Giv-

en the probable cause in the case at bar, we hold that

the immediate search was reasonable under the cir-

cumstances.

The defense also contends that officer McDaniels ad-

_mittedly knew of the attache case for a considerable

period prior to the arrest, knew of its possible con-

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U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 7

tents, and had adequate time to secure a scarch war-

rant after the indictment and prior to leaving on his

arrest mission. This contention misreads the nature

of the facts which gave probable cause to believe the

case contained evidence.

An attache case is designed to be a convenient recep-

tacle to temporarily carry while in transit a small

quantity of papers or items of like nature. The prob-

ability that it contains business documents flows from

the fact that the case is being used in conjunction with

business travel. The probability that Frick’s attache

case contained documentary evidence at that time a-

rose from a combination of factors: (1) Frick had u-

tilized the case to carry loan documents on a previous

out of state business trip; (2) he was arrested on a

work day; (3) at his automobile; (4) at a time in the

morning which is normally associated with going to

work; and (5) he had the attache case with him. Agent

McDaniels could not have known that all of these e-

vents would coincide prior to the time of the arrest.

Yet it was because these factors did coincide that prob-

able cause existed.

Finally, the defense argues under Chimel, supra,

that the arrest was “staged” to enable Agent McDan-

iels to search and seize the attache case. Frick was

not arrested immediately after the indictment was re-

turned but was errested the following morning. The

arrest took place in the parking lot rather than Frick’s

apartment. Arrest immediately after the return of the

indictment is not required, however. It is sufficient

that the arrest be within a reasonable time after the

Cot eee ee eS ee

8 USA. v. ROBERT FRICK & QUIMET PETERSEN

indictment. United States v. Palmer, 435 F.2d 653, 659

(ist Cir. 1970). Agent McDaniels testified that Frick

was not arrested in his apartment because the officers

had difficulty in locating it in the building. Immediate-

ly thereafter, Frick was discovered in the parking lot,

and the arrest completed. McDaniels testified that he

had not observed the attache case prior to the arrest.

This evidence does not support the argument that the

arrest was “staged” to permit the search and seizure.

ITI.

The other challenge to the convictions of the defend-

ants are without merit and we address them seriatum,

combining some, without regard to which defendant

asserted the error on this appeal.*

(i) The evidence presented was sufficient to sup-

port the convictions. United States v. Glasser, 315 U.S.

60, 80 (1942).

(2) The District Court’s instruction to the jury con-

cerning circumstantial evidence was not erroneous. U-

nited States v. Stokes, ____ F.2d ___._ (5th Cir. 1973);

United States v. Warner, 441 F.2d 821, 825 (5th Cir.),

cert. denied, 404 U.S. 829 (1971).

(3) Since the entire transcript was presented to de-

fense counsel, the issue on appeal is moot. United

States v. McDowell, F.2d _____ (5th Cir. 1973).

2Petersen claims eighteen errors were committed; Frick bases his

appeal on six.

U.SA. v. ROBERT FRICK & QUIMET PETERSEN 9

(4) There was no abuse of discretion in the denial

of the motions for severance and for continuance. Pet-

erson v. United States, 344 F.2d 419 (5th Cir. 1965).

(5) There was no abuse of discretion in denying

the submission of questions proposed by the defense

to the prospective jury on Voir dire examination. See

United States v. Jackson, 448 F.2d 539 (5th Cir. 1971).

The Voir dire transcript does not reveal any prejudice

to the defendants through the jury selection process.

(6) The prosecutor’s statements were not suffi-

ciently prejudicial to require reversal.

(7) It was within the discretion of the trial judge

to allow the “sucker” exhibit to be introduced as evi-

dence.

(8) There was no error in allowing the Government

to present evidence of other crimes to show system

and intent. United States v. Goldsmith, ___. F.2d

(5th Cir. 1973); United States v. Harrison, ___._ F.2d

—— (5th Cir. 1972).

(9) Brady v. Maryland, 373 U.S. 83 (1963), does not

require all evidence to be produced to the defense,

just that which is material. United States v. Jordan,

399 F.2d 610, 615 (2d Cir. 1968). Nor is Brady applica-

ble at pre-trial stages. Archer v. United States, 393

F.2d 124, 126 (5th Cir. 1968).

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10 U.SA. v. ROBERT FRICK & QUIMET PETERSEN

(10) The Government has no duty to call all of the

witnesses it subpoenas. United States v. Harper, 460

F.2d 705, 706 (5th Cir. 1972).

(11) The jury was properly instructed concerning

the indictment, and could have copies of it during de-

liberation. See United States v. Baker, 418 F.2d 851

(6th Cir. 1969), cert. denied, 397 U.S. 1015 (1970).

(12) Taken as a whole, the jury instruction to dis-

regard the testimony of Mr. Franks was proper since

the testimony was hearsay.

(13) The trial judge could consider the defendants’

use of assumed names since the only limitation on the

information the judge is permitted to consider in sen-

tencing is that which in fact is not true. Davis v. United

States, 376 F.2d 535 (5th Cir. 1967).

(14) Cruel and unusual punishment did not result

from sentencing the defendants to prison rather than

probation.

(15) It was not error for the trial judge to deny

defendants’ motions for acquittal and new trial.

AFFIRMED.

GOLDBERG, Circuit Judge, concurring in part and

dissenting in part:

I concur in Parts I and III of the opinion of my broth-

er Roney, but I am compelled to dissent from the pan-

el’s holding that the seizure and search of the defend-

USA. v. ROBERT FRICK & QUIMET PETERSEN 11

ant Frick’s briefcase was lawful. This Circuit has al-

ready heard from me at some length on what I feel

to be the erosion of Fourth Amendment guarantees

by a hostile judiciary, see United States v. Colbert and

Reese, 5 Cir. 1973, 474 F.2d 174, 179; and it is with

some reluctance that I have undertaken yet another

dissent in the area. My brothers may well hope, as

I do, that this will be my postlude to the dirges that

have been scored for the Fourth Amendment, but I

cannot absolutely forswear future elegies, for the con-

cepts of individuality and privacy expressed in that

Amendment are sacred to me. This latest exercise in

loose construction, if not distortion, of both the lan-

guage of the Constitution and the applicable decisions

of the Supreme Court requires an answer. For that

reason I regretfully, but firmly, dissent.

Our inquiry must begin, as the panel opinion itself

seems to accept, with the recognition that warrantless

searches are always exceptions to the general Fourth

Amendment rule. As such they are “per se unreason-

able” unless justified by certain exigent circum-

stances, Coolidge v. New Hampshire, 1971, 403 U.S.

443, 454-55; nor are these exigencies to be easily found.

The Supreme Court has persistently reminded us that

the exceptions are few in number, Katz v. United

States, 1967, 389 U.S. 347, 357; limited in construction,

Jones v. United States, 1958, 357 U.S. 493, 499; and

difficult of proof, McDonald v. United States, 1948, 335

U.S. 451. Only when these admonitions are firmly in

mind is it possible to appreciate the broad swathe the

panel’s opinion cuts through Fourth Amendment law.

U.S.A. v. RCRERT FRICK & QUIMET PETERSEN 13

gent” circumstances. Chimel provides that at the time

and place of arrest the apprehending officers may con-

du¢t “a search of the arrestee’s person and the area

‘within his immediate control’ — construing that

phrase to mean the area from within which he might

gain possession of a weapon or destructible evidence.”

Chimel v. California, 395 U.S. at 763.

At the time of the search in question here the defend-

ant Frick was in the custody of five federal agents;

he either had been, or was in the process of being,

handcuffed; and he stood in an open parking lot be-

tween “ne and one half and two feet away from his

automobile. On the basis of these facts my brothers

in the majority conclude that a search of the briefcase

was justified out of a reasonable fear that Frick might

gain access to its contents and either turn a weapon

on the agents or dispose of evidence. However, the

opinion is understandably devoid of any indication of

the manner in which Frick, an individual with no pre-

vious record for recklessness or violence, might have

accomplished the rather extraordinary feats of over-

powering his trained captors, breaking his bonds, and

destroying crucial evidence.

By any reasonable interpretation, the area within

Frick’s control at the time of this search amounted

to no more than his own person, under the most gen-

erous constructions of Chimel. While it must be ad-

mitted that had Frick been possessed of the skill of

Houdini and the strength of Hercules, he might con-

ceivably have reached the contents of the briefcase,

neither the panel majority nor the court below placed

soa $4

14 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

him in such legendary company. The possibility

of legerdemain cannot create the justification for a

warrantless search, at least under my reading of Su-

preme Court decisions jn this area. I do not believe

my vision distorted or my view myopic. Had the agents

nevertheless feared that Frick might reach exception-

al levels of strength and cunning as a result of his

desperate plight, surely the simple expedient of closing

and locking the car door would have had the salutary

effect of protecting the defendant’s interests in privacy

while guarding the safety of the officers and the in-

tegrity of the investigation from an irrational ram-

page.' Indeed, if the federal agents legitimately

thought that Frick might gain access to the briefcase,

their conduct in removing it from the car and open-

ing it in his presence appears precisely calculated to

increase, rather than remove, that possibility. If, as

agent McDaniels testified, the car door was open at

the time of the arrest, the commonplace action of de-

pressing the lock and closing the door would have pro-

vided the maximum possible protection against the

dangers of violence and destruction outlined in Chimel.

My brothers in the majority, however, ignore both

the fact of Frick’s captivity and the clear indication

that the agents did not fear possible destruction at his

‘Judge Roney dismisses the factual dispute as to whether the car

door was open or shut at the time of the arrest as irrelevant

to the disposition of this case. Althoug I am of the opinion that,

on the facts of this arrest. the automobile and its contents

were well outside the scope of Frick’s immediate control, re-

gardless of the state of the car door, it is certainly conceivable

that the additional barrier of a closed car might be important

in the decision of a closer case.

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 15

hands. They choose instead to adopt what amounts

both literally and figuratively to a yardstick test. Un-

der the view of Chimel advccated here the reason for

the exception to the warrant requirement — the possi-

bility of serious physical destruction at the time of

arrest — is evidently considered irrelevant. The Court

looks not at all to the question of whether the briefcase

was realistically within Frick’s reach. Rather, both

the limited standards of Chimel and the physical reali-

ties of the arrest are subordinated to the panel’s own

extraordinary theory of Frick’s capabilities. Although

fictions and physical impossibilities may be tolerable

in the interpretation of certain arcane branches of real

property law, they have no place in the application

of constitutional protections.

Certainly the possibility exists that opinions written

and judgments made in the isolation of appellate cham-

bers may too easily ignore the harsh realities of law

enforcement, as many critics of the expansion of con-

stitutional rights in the criminal field have been an-

xious to point out. But the panel’s application of Chimel

to the facts of Frick’s arrest demonstrates that courts

may also err by exaggerating both the ingenuity of

criminal accused and the legitimate fears of police-

men. Such judicial timidity leads to ivory tower specu-

lations entirely unrelated to the actions or experience

of the officers in the field.*

a a Eg ee a ee ee ee

16 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

II. The Automobile Search

Though the panei places its primary reliance on the

Chimel exception to the warrant requirement, the Gov-

ernment in its brief before this Court concentrated

largely on the so called “car exception” to the search

warrant requirement first recognized in Carroll v. U-

nited States, 1925, 267 U.S. 132, and most recently ex-

plicated by the Supreme Court in Coolidge v. New

lined in Collidge v. New Hampshire, 1971, 403 U.S. 443, 468.

“. .. [P]lain view alone is never enough to justify the

warrantless seizure of~evidence. . . .Incontrovertible

testimony of the senses that an incriminating object’

is on the premises belonging to a criminal suspect

may establish the fullest possible measure of probable

cause. But even where the object is contraband, this

Court has repeatedly stated and enforced the basic

rule that the police may not enter and make a war-

rantless seizure.”

In this case, as in Coolidge, the “premises” of the criminal

on & constitutionally recognized zone of privacy. In the ab-

sence of such a justification, the plain view doctrine cannot

apply.

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 17

Hampshire, 1971, 403 U.S. 443. The majority’s emphasis

on the “mobile” nature of Frick’s car and the citation

to Chambers v. Maroney, 1970, 399 U.S. 42, a decision

which relied heavily on Carroll, indicate that at least

some support was drawn from this argument. At the

outset it should be noted that any holding in favor of

; _ the applicability of the Carroll exception only takes

the Government over the first hurdle — it justifies the

removal of the briefcase from Frick’s car. The subse-

quent warrantless inspection of the contents of the

closed briefcase requires independent analysis.

There are two general requirements for the applica-

tion of Carroll and the consequent warrantless search

of a motor vehicle. First, the officers must have prob-

able cause to believe that the car contains contraband

or other evidence. Second, certain exigent circum-

stances must exist such that “it is not practicable to

secure a warrant.” Coolidge v. New Hampshire, 402

US. at 460, quoting Carroll v. United States, 267 U‘S.

at 153. The facts of this case fail to demonstrate either

of these essential elements.

A. Probable Cause

I concur without reservation in the conclusion of my

brothers that no probable cause existed to support a

search warrant for Frick’s briefcase prior to the day

of the arrest. The panel opinion, however, purports

to find the missing elements of probable cause merely

in the fact that the briefcase was observed in the de-

fendant’s car on a weekday morning. The record does

sd 2 SGA RE PA PER EES naret Ree

18 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

not even disclose that the agents had seen Frick carry-

ing the briefcase on the morning of the arrest. For

all that agent McDaniels and his cohorts knew, it had

been sitting on the floor of Frick’s car for days. Surely

the panel does not intend to hold that the arrest of

an individual for a crime involving the use of paper

automatically creates probable cause to believe that

any or every receptacle of the accused is a storehouse

for evidence. To say that the arresting officers had

probable cause to believe that the briefcase contained

evidence of the crime endows those officers with a

supernatural clairvoyance. The justification for an ar-

rest does not automatically litmus itself into a justifica-

tion for a search. There are no facts supporting a belief

that the probable cause for arrest and the probable

cause for the search were identical twins. To hypo-

thesize that the briefcase contained documents of guilt

mocks the logic of Fourth Amendment analysis. Count-

less innocent items could have been contained within

its immobile and non-violent exterior, and constitution-

al guarantees are not to be nullified by speculation.

In this case the officers’ suspicions were borne out.

But the Supreme Court has made it clear, beyond room

for intelligent dispute, that mere suspicion does not

constitute probable cause. See Giordenello v. United

States, 1958, 357 U.S. 480; Brinegar v. United States,

1949, 338 U.S. 160; Black v. Ohio, 1964, 379 U.S. 89.

B. Exigent Circumstances

Even granting that probable cause existed for the

belief that Frick’s automobile contained evidence of

the crime, the search must still be justified by the

nF NS ap SP EE TRL EE TIE NII

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 19

presence of exigent circumstances which made it im-

practical for the FBI agents to obtain a warrant. There

is no other responsible reading of the Supreme Court’s

decisions, and I interpret the panel’s references to var-

ious “exigent” factors as a tacit recognition of that

fact. See Carroll v. United States, supra.; Brinegar

v. United States, supra.; Chambers v. Maroney, su-

pra. The very notion of a category of automobile

searches is really no more than the expression of the

fact that these extraordinary circumstances requiring

immediate action are more likely to occur when the

locus of the search is as frequently and casily moved

as an automobile.

The Supreme Court’s recent decision in Coolidge v.

New Hampshire involved, like the case before us, the

warrantless search of an automobile parked at the de-

fendant’s residence. In considering the arguments ad-

vanced in support of the police action under Carro'l

and Chambers, the Court noted the categories of exi-

gent circumstance necessary to trigger the warrant

exception:

“The word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment fades

away and disappears. And surely there is noth-

ing in this case to invoke the meaning and pur-

pose of the rule of Carroll v. United States —

no alerted criminal bent on flight, no fleeting

opportunity on an open highway after a haz-

ardous chase, no contraband or stolen goods or

weapons, no confederates waiting to move the

evidence, not even the inconvenience of a spe-

sentria ; CT NG TUM ENN RRNA

be ea LT dp

20 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

cial police detail to guard the immobilized au-

tomobile.”

403 U.S. at 461-62.

The Government and the panel evidently attempt

to bring this case within the parameters defined in

Coolidge and earlier decisions on the basis of the fact

that Frick’s co-indictee, Petersen, had not yet been

taken into custody at the time of the search, and would

therefore be likely to disturb the evidence.* It should

The panel opinion mentions three other allegedly “exigent” cir-

cumstances justifying the search of Frick’s car and briefcase.

However, all are so obviously contrary to both the law and

common experience, that I have difficulty viewing them as

anything more than makeweights, designed to obscure rather

than advance constitutional analysis.

(1) The mobile character of the attache case: Every Supreme

Court decision emphasizing the necessity of a search warrant

and the narrow, technical nature of the exceptions has in-

volved evidence no less movable than the briefcase and papers

considered here. See, e.g., Coolidge v. New Hampshire, 1971,

403 U.S. 443 (vacuum sweepings); Chimel v. California, 1969,

395 U.S. 752 (coins). At no pcint has it ever been suggested

by the Court that exigent circumstances exist whenever the

desired evidence is neither bolted to the floor nor too heavy

to move. Indeed, the opinion of the Court in Coolidge treated

any such contention as the ultimate reductio ad absurdum of all

faulty Fourth Amendment analysis:

“. . [A] good number of the containers that the police

might discover on a person's property and want to

search are equally [as] movable [as an automobile],

e.g., trunks, suitcases, boxes, briefcases, and bags.

How are such objects to be distinguished from an un-

occupied automobile — not then being used for any

illegal purpose — sitting on the owner's property? It

is true that the automobile has wheels and its own

locomotive power. But given the virtually universal

availability of automobiles in our society there is little

difference between driving the container itself away

and driving it away in a vehicle brought to the scene

for that purpose. Of course, if there is a criminal

Re eta Gene sn a Ty Me a ek a ee eel aa

100

U.S.A. v. ROBERT FRICK & QUIMET PETERSEN 21

first be noted that, if the agents even remotely feared

or suspected that Petersen would come to Frick’s a-

partment building after the arrest, their conduct was

, Suspect close enough to the automobile so that he

might get a weapon or destroy evidence within it,

the police may make a search of appropriately limited

scope. Chimel. . . . But if Carroll v. United States...

permits a warrantless search of an unoccupied ve-

hicle, on private property and beyond the scope of a

valid search incident to an arrest, then it would per-

mit as well a warrantless search of a suitcase or a

box. We have found no case that suggests such an

extension of Carroll.” 403 US. at 461, n. 18. [Em-

agreeable suspect will have a few friends able and perhaps

willing to cart off incriminating evidence. But once again,

‘ the panel presents no case support for the argument that this

possi

case

(3) The possibility that the suspect himself, once released on

bail, will destroy the evidence: At this point the opinion en-

rect then exigent circums*ances justifying a search on prob-

able cause alone will exist in every case, save that of

friendless defendant, ineligible for bail, or one in possession

with its own admission that the exceptions to the warrant re-

quirement are few and well-delineated.

101 .

22 U.S.A. v. ROBERT FRICK & QUIMET PETERSEN

little short of amazing. The record shows that original-

ly a rortion of the five agent detachment which par-

ticipated in the arrest of Frick had been detailed to

apprehend Petersen. Unable to locate the latter at his

home, this detail tagged along on the Frick arrest.

The panel opinion now asks us to believe that trained

agents of the FBI, having failed in their initial assign-

ment to apprehend a man, and having reason to believe

that he would arrive at a certain location, blithely de-

parted that location leaving no one behind to stand

guard. To my mind, the action of the agents in de-

parting the scene speaks more convincingly than a vol-

ume of post hoc judicial theorizing. At the very least,

it points up the failure of the Government to fulfill

its burden of clearly demonstrating its contention that

there was need for an exception to the warrant require-

ment, United States v. Jeffers, 1951, 342 U.S. 48, 51,

because of a reasonable fear on the part of the agents

that “confederates [were] waiting to move the evi-

dence.” 403 U.S. at 462.

The size of the FBI detachment present at Frick’s

apartment on the morning of his arrest and the nature

of its assignments are strong indications of the inap-

plicability of Carroll and its progeny to this case in

another sense as well. Surely in this instance sound

law enforcement and the fullest possible protection of

Fourth Amendment rights coincided in requiring that

the car and its contents remain undisturbed pending

application for a warrant, but that a least one of the

five agents remain behind on watch. My brother Roney

attempts to avoid any such approach by contending

that, since the stationing of an agent at the car would

7 7 he ALN TINT

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Dias ts bes erential Malian aon

102

USA. v. ROBERT FRICK & QUIMET PETERSEN 23

itself constitute an intrusion on Frick’s Fourth Amend-

ment rights, the further intrusion of the search and

seizure is without additional constitutional signifi-

cance. I hope that in my shock at such a contention

I am not being unfair to the majority; but I can only

interpret the opinion as holding that once a small in-

fringement on individual rights is accepted in the name

of some important state interest, then any added bur-

den is necessarily proper. The theory is apparently

that, if you can take an inch, you are constitutionally

entitled to a mile. Even to state the proposition is to

reveal its fragility. The holding in Chambers v. Ma-

roney, supra., on which the panel evidently relies, is

not to the contrary. Chambers held that, given

the probable cause and exigent circumstances neces-

sary for a highway search under Carroll, the police

could instead impound the car and conduct the search

at the station. In Chambers the final intrusion rested

on independent constitutional justifications; and in

Coolidg: a majority of the Supreme Court explicitly

rejected the notion, evidently advanced by the panel

here, that one category of Fourth Amendment excep-

tion can justify intrusions different in degree or type.

403 U.S. at 473-484. Indeed, the Coolidge opinion speci-

fically noted the presence of police guards on duty at

the defendant’s house after his arrest as one factor

obviating the need for an immediate search. 403 U.S.

at 461, & n. 18.

The final deficiency in the panel opinion lies in its

failure to explain why, granting for the moment a right

to seize the briefcase, the search itself could not have

awaited a presentation of the facts to a neutral magis-

er ae ee SN

103

24 USA. v. ROBERT FRICK & QUIMET PETERSEN

trate. Certainly the panel majority cannot hope to rest

behind the discredited notion that lesser intrusions can

justify greater ones. See United States v. Garay, 5 Cir.

1973, 477 F.2d 1306; United States v. Brett, 5 Cir. 1969,

412 F.2d 401, 406. Viewed from any angle there were

no circumstances requiring the agents to search with-

out a warrant at the time of Frick’s arrest. And in.

the absence of such compulsion, the representatives

of the United States, whether officers in the

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