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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 831

## Text

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

NY

: PAGE NO.
Opinion below------ ec eee 1
Jurisdiction-------- -------------- 1
Questions presented--------------- 2
Statutory provisions involved----- 2
Statement of the case------------- 3

Sy

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----~---~-----------

22

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.

26

14

a4

75

45

70

64

29

56

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.

59

79

72

69

68

59

75

72

69

70

70

42

20

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.

79

33

64

59

74

79

30

69

60

69

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

2

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

pe
3

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

4

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)

Ss
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

6

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

57

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,"

58

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

59
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

60
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

U

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

RPMRSIAIE RON TS!

61

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.

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

62

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

63

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.

1.

Severance was required in this case. A
joint trial of this matter was inappropriate

64

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

65

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

66

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

67

between the exhibit and the defendants which
he had been unable to do previously by proper
methods.

3.

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.

68

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

we

69

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.

4.

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:

70

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

71

"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

72
was improper and prejudicial to the defendant.
6

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

73

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

75

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.

8.

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

76
9.

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

77

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
much to the founding fathers that, in order to guar-
antee its primacy, they were willing to countenance
the possibility that criminals might at times conceal
the fruits or other indicia of their crimes. The wiser
course for both judges and private citizens is to heed
their teachings on the fundamental requirements of
a free society. This is my judicial philosophy — strict
constructionism, if you please.

Adm. Office, US. Courts—Scofields’ Quality Printers, Inc, N. O, La.

Pe eee eT Ce ee yoy eee

~~ eae se

104

UNITED STATES of America, Plaintiff-Appellee,
v.

Robert Lee FRICK and Quimet John Petersen,
Defendants- Appellants.

No. 72 2275.

United States Court of Appeals,
Fifth Circuit.

March 15, 1974.

Appeals from the United States District Court for the
Eastern District of Louisiana; Alvin B. Rubin, Judge.

ON PETITIONS FOR REHEARING AND PETITIONS
FOR REHEARING EN BANC

(Opinion December 5, 1973, 5 Cir., 1973, F.2d ).
Before GOLDBERG, CLARK and RONEY, Circuit Judges.

PER CURIAM:

On petitions for rehearing, we have considered whether our
opinion sets any precedent in the law of search and seizure as
it applies to so-called exigent circumstances unrelated to the
execution of a warrant for arrest. Believing as we do, that all
facts must he considered in determining the reasonableness of
a search without a warrant, our holding here is not compart-
mentalized so as to make any facts unimportant and we voice
no opinion whatsoever as to whether we would hold this
search reasonable absent the arrest warrant or upon any of
the other facts differing from those at bar. The petitions for
rehearing are denied.

Judge Goldberg would grant the petitions for rehearing for
the reasons set forth in his dissent to the pane! opinion.

me

165

1723 UNITED STATES v. FRICK

No member of this panel nor Judge in regular active service
on the Court having requested that the Court be polled on
rehearing en banc, (Rule 35 Federal Rules of Appellate Proce-
dure; Local Fifth Circuit Rule 12) the petitions for rehearing
en bane are denied.

& true copy

Test: EDWARD W. WADSWORTH
Clerk, U. S

e Cezrt of Appeals, ifth Circuit
mr lash am
Be APRS 4

New Orleans, Louisiana

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1939%3A1. Public record. Not legal advice.