Opposition Brief — Peterson v. United States

INDEX

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CITATIONS

Cases:

Adickes v. Kress & Co., 398 U.S. 144... 6

Alderman v. United States, 394 U.S. 165................44. 5

Brady v. Maryland, 373 U.S. 83 .............ccccceeseeeeeees 2,9

Brown v. United States, 411 U.S. 223...............cceeeeeee 5

Cardwell v. Lewis, No. 72-1603, decided June 17,

SERRE ee emames «SC, PSE Rane ey area an 6

Chambers v. Maroney, 399 U.S. 42 ....ccccccccceceeeeeeeeeees 6

Chapman v. California, 386 U.S. 18 ..............c0eeceeeeees 6

Chimel v. California, 395 U.S. 752 ...........ccccccseeseeeeees 6

Harrington v. California, 395 U.S. 250..............:::c0e 6

Henderson v. United States, 218 F. 2d 14.................. 9

SEES ©. TE BRRNGE, TI Ta BEF witeininssnseresnievevens 5

Lawn v. United States, 355 U.S. 339 .............cceeeeeeeees 6

Simmons v. United States, 390 U.S. 377..............0000+ 5

Tuckerman v. United States, 291 Fed. 958, certiorari

OO We ak, REC Renee 8

Cases (Continued): Page

United States v. Holt, 108 F. 2d 365, certiorari

denied, 309 U.S. 672, rehearing denied, 309 U.S.

Se SALAH Pees SYS eae re SOA sicsa stapudiancscacelatis 8-9

United States v. Jordon, 399 F. 2d 610..............:.00008 7

United States v. Robinson, 414 U.S. 218 .............0006 6

Statutes and regulations: |

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In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 73-1704

QuIMET J. PETERSEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 81-103)

and its per curiam opinion denying rehearing (Pet. App.

104-105) are reported at 490 F. 2d 666.

JURISDICTION

The judgment of the court of appeals was entered on De-

cember 5, 1973. A petition for rehearing and rehearing

en banc was denied on March 15, 1974. On April 11, 1974,

Mr. Justice Powell extended the time for filing a petition

for a writ of certiorari to May 14, 1974, and the petition

was filed on that date. The jurisdiction of this Court

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

(1)

2

QUESTIONS PRESENTED

1. Whether petitioner had standing to challenge the

seizure and search of his co-defendant’s brief case found

in the co-defendant’s automobile at the time of the co-

defendant’s arrest. —

y Whether the government withheld exculpatory evi-

dence in violation of the rule in Brady v. Maryland, 373

U.S. 83.

3. Whether the prosecuting attorney’s questions or

argument were improper and prejudicial. |

4. Whether various instructions and rulings by the

court were erroneous.

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Louisiana, petitioner and his

co-defendant, Robert Lee Frick, were found guilty on all

five counts of an indictment charging use of the United

States mails and interstate telephone and wire facili-

ties to. defraud, and with conspiracy to defraud, in vio-

lation of 18 U.S.C. 1341, 1343, 371, and 2. Petitioner was

‘ sentenced to concurrent sentences of three years’ im-

prisonment. subject to eligibility for parole after six

months, pursuant to the provisions of 18 U.S.C. 4208(a)

(1), on each count. The court of appeals affirmed, one

judge concurring in part and dissenting i in part re. App.

81-103).

The facts show that petitioner and Frick were engaged in

a scheme to defraud business people in need of capital:

by falsely promising to obtain loan financing for them in

exchange for a fee. The clients would never receive the

loans for which they had tain nor would the fees be

returned to them.

3

The testimony of Frank Crawly, III, the complaining

witness, demonstrates how the scheme operated. Crawly

owned the Bison Lumber and Supply Company in Shaw-

nee, Oklahoma. In April, 1971, he attempted to obtain a

loan to consolidate several outstanding loans and to buy

out his partner (Tr. 31-32). A friend referred Crawly to

Frick, who told him that he represented the Mortgage

Corporation of America. Crawly told Frick that he wanted

a loan of $400,000, which Frick said he would consider.

Crawly then gave Frick a copy of his financial state-

ment and pictures of his lumber yard (Tr. 37-39). Frick

called Crawly a few weeks later and told him that the

loan committee had approved a loan for $375,000 and that

if Crawly was serious Frick would bring him a loan appli-

cation shortly (Tr. 45-47). Crawly executed the loan pa-

pers and gave Frick a check for $3,750, which, supposedly,

was a 1% earnest money fee (Tr. 56-57).

Frick subsequently advised Crawly that his appli-

cation had been approved, and Crawly proceeded to com-

ply with all of the directions given him by Frick (Tr.

63-66). Petitioner, Crawly and Frick met in New Orleans.

Petitioner was introduced to Crawly as an associate

with Mortgage Corporation of America. Frick gave

Crawly a letter of commitment supposedly from the

Tangible Risk Insurance Co., Ltd. (Tr. 71-73), in ex-

change for which Crawly gave Frick a check for $4,600

and cash in the amount of $937.50 (Tr. 75). This money,

Crawly was led to believe, was in part for the loan

application fee and in part for Frick (Tr. 76). Crawly

testified that while in New Orleans he discussed ar-

rangements for the loan with petitioner (Tr. 80-81).

Later, Crawly wired $1,000 to petitioner to perform an

appraisal of his property (Tr. 97-101). Both petitioner

and Frick later told Crawly that the loan was ready to

Te ee ee

: » a ee

4

be closed, but on the appointed day only Crawly appear-

ed. Crawly was subsequently told that Tangible Risk’s

loan officer was tied up on the agreed day but that the

closing could take place a day later. After this sec-

ond meeting was also cancelled, the closing was set for

the following week. Crawly then called petitioner, who

told him not to worry, that the closing would occur

shortly. The loan was never closed, Crawly was never

given a reason for failure to close the loan and was

never told that he failed to comply with any of the

loan requirements. The $10,000 already paid to peti-

tioner and Frick was never returned, although Crawly

made demands on both (Tr. 111-114).

The government also offered the testimony of Mrs.

Janet M. Troxler, co-owner of the Jet Typing Service,

Inc., who testified that petitioner had engaged her

company to type a letter to Crawly on a Tangible Risk

Insurance Co., Ltd. letterhead, which petitioner had

provided her (Tr. 262-267).

Additionally, several witnesses testified that they

knew petitioner and Frick under different names and

that they had been victims of essentially the same

scheme. Each witness testified that he had been prom-

ised financing, that he completed the necessary appli-

cations and paid the required fees, that he never

received his loan and that the money paid to petitioner

and Frick was never repaid (Tr. 279-289, 291-301, 306-

307, 314-325, 344-349).

The briefcase, the seizure of which petitioner

contests, contained files and documents belonging to

Frick. Among the items seized from the briefcase were a

Bison Lumber Company balance sheet, and a draft loan

document which referred to the borrower as the

“sucker” (Tr. 373-377; Govt. Ex. G-25).

5

Frick was arrested, pursuant to an arrest warrant, by

FBI agent McDaniels accompanied by four other agents,

while he was standing outside his automobile with the

car door open. McDaniels identified himself and stated

to Frick that he was under arrest (Tr. 364-368). While

placing Frick under arrest, McDaniels saw the briefcase

lying on the floor in the back of the vehicle immedi-

ately behind the driver's seat, and seized it (Tr.364-

367).! Frick’s motion to suppress the evidence was

denied (Tr. 369; see also proceedings on Motion to

Suppress Illegally Seized Evidence, February 16, 1972,

Tr. 19-26).

ARGUMENT

Petitioner has no_ standing to challenge the

seizure of Frick’s briefcase from Frick’s car at the

time of Frick’s arrest. In Brown v. Uniied States,

411 U.S. 223, 229, the Court held that to establish his

standing a party must show that he was on the premises

at the time of the contested search and seizure; that

he had a proprietary or possessory interest in the

premises searched; or that he was “charged with an

offense that includes, as an essential element of the

offense charged, possession of the seized evidence at

the time of the contested search and seizure.” See

also Alderman v. United States, 394 U.S. 165, 173,

176-180; Simmons vy. United States, 390 U.S. 377;

Jones v. United States, 362 U.S. 257, 261. Peti-

tioner clearly does not meet these criteria. Petitioner

was not present at the time of the search, he has demon-

strated 0 proprietary or possessory interest in the

automobile or briefcase searched, and was not charged

with ar offense requiring possession.

'Petitioner implies (Pet. 11) that McDaniels had examined Frick’s

car and observed the briefcase prior to Frick appearing on the scene.

This is unsupported by the transcript either as cited by petitioner

(Tr. Motic > to Suppress at 19) or elsewhere.

6

The record, therefore, establishes that petitioner was

without standing to challenge the sufficiency of the

search and seizure, as the court of appeals found (Pet.

App. 82-83).

Moreover, petitioner did not move to suppress the evi-

dence seized prior to trial, or at trial; nor did he raise

this issue at the court of appeals. Petitioner alleges for

the first time in his petition to this Court that the brief-

case seized from Frick’s car actually belonged to him and

that he simply had lent it to Frick to use (Pet. 6). Since

the issue of petitioner’s ownership of the briefcase was not

raised previously, it would be inappropriate for this Court

to make that factual determination in the first instance.

Lawn v. United States, 355 U.S. 339, 362,n. 16; Adickes

v. Kress & Co., 398 U.S. 144, 147, n. 2.2

2. Petitioner contends (Pet. 22-45) that the govern-

ment failed to disclose to him information which was

favorable to his case. The three items of information

2Petitioner’s co-defendant Frick moved, unsuccessfully, to sup-

press the evidence found in the briefcase, but petitioner did not join

in that motion. Even assuming, arguendo, that petitioner was the law-

ful owner of the seized briefcase, that he has not waived his right to

make that claim, and that he had standing to challenge the search,

we rely on the court of appeals’ finding that the search and seizure

in this case were lawful (Pet. App. 83-88). See Chimel v. Cali-

fornia, 395 U.S. 752, 763; Chambers v. Maroney, 399 U.S. 42, 52; Unit-

ed States v. Robinson, 414 U.S. 218; Cardwell v. Lewis, No.

72-1603, decided June 17, 1974. Moreover, even if this search were

found to be unlawful, this would constitute harmless error in light

of the overwhelming evidence of guilt present in this case and the

cumulative nature of the evidence in the briefcase. Chapman v.

California, 386 U.S. 18, 22-24; Harrington v. California, 395

U.S. 250.

‘Contrary to petitioner’s contention (Pet. 22), petitioner did

not move for the production of exculpatory material. However, co-

defendant Frick filed such a motion, which was granted.

-

which petitioner asserts should have been surrendered to

him are: an F.B.I. report indicating that an Oklahoma

City Postal Inspector was familiar with Tangible Risk In-

surance, Co., Ltd.; correspondence from the Postal In-

spector in Shreveport relating to the existence of Tangi-

bie Risk; and correspondence from Joseph P. Humphreys,

who was the Executive Director of the Non-Admitted In-

urers Information Office, relating to certain corporate

aspects of Tangible Risk. After the court of appeals

affirmed the decision of the district court in this case,

petitioner and Frick moved in the district court for a new

trial, alleging, among other things, that the prosecutor had

failed to reveal the material at issue here. After an evi-

dentiary hearing, the trial court in a written opinion de-

nied the motion. That denial is now pending on appeal in

the Fifth Circuit. It is thus unnecessary for this Court to

consider those issues. In any event, we rely on the thor-

ough opinion of the district court denying the motion,

which shows that the evidence in question was neither

material nor exculpatory.* As the court of appeals cor-

rectly pointed out, “Brady * * * 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 (2nd Cir., 1968).” (Pet. App. 89).

3. Petitioner contends that certain statements (see

Pet. 46-47, 50-56) made by the prosecutor during his open-

ing statement, trial, and in closing argument were im-

proper and prejudicial thereby requiring reversal. This

contention is without merit. Typical statements com-

plained of in the opening argument are:

*We are lodging with the Clerk a copy of the opinion and trans-

cript of testimony on the motion for a new trial. See Opinion, pp.

5-9.

8

We feel that we will prove that the defendants did

devise a scheme to defraud * * * [Tr. Opening argument,

p. 5].

We intend to prove that they promoted their scheme

all over the United States * * * [ibid.].

see

In fact, I think that the evidence will verify that

Mr. Crawly considered himself threatened by the de-

fendants not to take any action against them to get

his money back [ir. Opening argument, pp. 8-9].

ese 24%

In closing:

We feel that after looking at those exhibits, you

will in fact return a verdict of guilty [Tr. Closing

argument, p. 88].

**ee2*

His Honor instructed we need only prove one act.

I submit to you we proved all acts [/d., p. 92].

ses ee

No objections were made to any of these statements at

the time they were made. As to the opening statement, it

is necessarily made before evidence is presented and the

prosecutor can only say what he intends to prove. In clos-

ing argument, the prosecutor tries to assist the jury

in analyzing, evaluating and applying the evidence,

and he has the right to express his judgment or opinion as

to the conclusions to be drawn from facts in evidence.

Tuckerman v. United States, 291 Fed. 958 (C. A. 6),

certiorari denied, 263 U.S. 716; United States v. Holt,

108 F. 2d 365 (C. A. 7), certiorari denied, 309 U.S. 672,

9

rehearing denied, 309 U.S. 698; Henderson v. United

States, 218 F. 2d 14, 19 (C. A. 6).5

4. Petitioner also contends that the court committed

numerous errors in its rulings and instructions (Pet.

62-63). These contentions were all rejected by the court

of appeals (Pet. App. 88) on whose opinion we rely (Pet.

App. 88-90).° Only one deserves fuller comment.

Petitioner contends that the district court’s instruc-

tion that “it’s not necessary to determine whether Mr.

Petersen was a member of a conspiracy” (Tr. 446), was

piain error. Petitioner takes this instruction out of

context. The entire instruction clarifies the court’s

charge. The court stated:

In other words, it’s not necessary to prove that

every one of those acts alleged in Count I was agreed

on or that every one of them was done, but what the

evidence must establish beyond a reasonable doubt is

that the alleged conspiracy was knowingly formed,

that one or more of the means or methods described

in the indictment were agreed upon to be used in an

effort to accomplish some object or purpose of the

charged conspiracy and that two or more persons, in-

cluding one or both of the accused, were knowingly

members of the conspiracy, as charged.

‘Petitioner also raised improper closing argument as one of his

grounds for a new trial, and this issue, like the Brady issue, is

pending appeal in the Fifth Circuit. See Opinion on motion for new

trial, pp. 9-10.

*Petitioner also challenges the trial judge’s refusal to grant a con-

tinuance after changing his decision to sever the trials of petitioner

and his co-defendant. However, he has not shown any prejudice to him

caused by the denial of his motion for a continuance.

~~ EE PY eo eR geek cere . : ~ De eet Seat Ss

10

You may consider, in determining this, the actions

of the Defendants, each of them separately. In de-

termining whether or not either Defendant was him-

self a member of the conspiracy, you are not to

consider what the other Defendant said or did. In

other words, to determine whether or not Mr. Frick

was a member of the conspiracy, you may consider

only what Mr. Frick said or did, and it’s not neces-

sary to determine whether Mr. Petersen was a mem-

ber of a conspiracy, you must consider only what

Mr. Petersen said or did.

If you find it proved beyond a reasonable doubt,

however, applying this test, that they were both

members of the conspiracy, then you may consider

what either of them did separately thereafter as

evidence against the other one. [Tr. 445-447.]

This charge read as a whole was not erroneous; it em-

phasized the necessity of making a finding as to each

conspirator. It was clear under the charge, however, that

the jury could not find a conspiracy without finding that

the conspirators, beyond a reasonable doubt, conspired

with each other to break the law.

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoBERT H. Bork,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

Harry R. SACHSE,

Assistant to the Solicitor General.

PETER M. SHANNON,

IVAN MICHAEL SCHAEFFER,

Attorneys.

SEPTEMBER 1974.