# Opposition Brief — Peterson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1939%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1974 - **Citation:** 419 U.S. 831 ## Text INDEX Page Pours decdsncbeiianincsinnesasirsinemeniecupiaiain | pL TELIA SELATAN l IIIS IIIT... cs xicianschseshasnpsninenstnaesenadsnbanannietanaonia 2 Ee I Nr Sa Ke RRP 2 AE NS ee Ie Tae TE SIR mee 5 TERRI as ate pee eee aE See rn RD 10 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: | I earch cta sedi necastistadses crencousbiuataesisapiiiasaine 2 es taichccustenstictutatinelghupentiiesanisitbainaasoioshinesnonniaa 2 I I iar dtl coin bcesacihaiioesiabaicsactoraslabbnats 2 EEN Aa nena oo 2 ot Saat Sas REAR: LieAee ARNE Dee 2 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1939%3A2. Public record. Not legal advice.