Memorandum — Simpkins v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-595

JERRY HowarD SIMPKINS AND JEs:—e HOWARD

S1MPKINS, PETITIONERS

_

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners conte®4 that they were improperly limited

in cross-exz ming a 80vernment witness, that they were

denied their right t° 4 Speedy trial, and that they were

prejudiced by the ‘rial court’s admonitions to defense

counsel.

Following a jury trial in the United States District

Court for the Easter" District of Virginia, petitioners were

convicted on eight Counts of interstate transportation of

stolen vehicles and Other stolen property, in violation

of 18 U.S.C. 2312 and 2314. Jerry Howerd Simpkins

was sentenced to 2 term of three years imprisonment,

all but six months Of which was suspended, with three

years’ probation. Jesse Howard Simpkins was given a term

of three years’ proPation, and fined $5,000. The court of

appeals affirmed in 2 thorough opinion (Pet. App.).

(1)

2

The government’s case was based principally upon the

testimony of Ellen O’Meara, who was the intermediary

between petitioners and members of a New York orga-

nized crime ring. Ms. O’Meara explained in detail her

dealings with the Simpkinses in procuring stolen auto-

mobiles and machinery for them, preparing bogus bills

of sale and invoices at their direction, and collecting

money they owed to the New York connections (Tr. 399-

445).

1. Petitioner’s contention that the trial court improper-

ly limited their cross-examination of Ms. O’Meara is in-

substantial.

On cross-examination, defense counsel inquired into the

names of the members of the theft ring. O’Meara refused

to answer, explaining that her life would be endangered

if she answered those inquiries (Tr. 446-447). The trial

court sustained a subsequent objection to the question

because it was irrelevant to the issue at hand, i.e.,

whether or not the vehicles and machir.es were trans-

ported in interstate commerce by petitioners and whether,

at the time they were transported, petitioners knew they

were stolen (Tr. 521-523).

The government never contended, and the evidence

did not show, that petitioners dealt with any of the main

figures in the organized crime ring other than O’Meara.

Trial testimony did reveal that petitioners did not know

many of the members of the ring (Tr. 483), but that they

had had some contact with Gary Melius, Artie Dome,

and an individual named Pauley (Tr. 416, 436, 450). These

people were involved in delivering the automobiles and

machinery. Petitioners contend that the names of others

were relevant because they could use these unknown per-

sons to prove they had no knowledge the goods were stolen

and did not know with whom they were dealing. However,

in endorsing the trial court’s action, the court of appeals

properly ruled (Pet. App. A5):

eRe Sat oat BETTY

3

* * * (T]he scope of cross-examination is generally

within the discretion of the trial court and usually

limited to matters brought out on direct. See United

States v. Williams, 478 F.2d 369, 371 (4th Cir. 1973);

United States v. Chase, 372 F.2d 453, 463 (4th Cir.

1967). But, in any event, we note that the defendants

did not attempt to use as witnesses those crime ring

members who were named by Miss O’Meara. They

have given us no reason to believe that they would

have used the unnamed criminal members. We are

of the opinion the district court acted within its discre-

tion in not requiring the witness to divulge names of

persons not directly involved with the crime charged,

and whose testimony, if available, could be of little

or no value to the defense. In addition, any error

committed was harmless. We have had brought to

our attention no potential witness with whom the

defendants dealt who could not have been subpoenaed.

[Emphasis added. ]

2. There is no merit to petitioners’ contention that the

trial court’s admonitions to their attorney denied them

a fair trial.

On several occasions during the hotly contested, four-day

trial, Judge Kellam admonished defense counsel to state

his questions in proper form, to refrain from commenting

on the evidence, and generally to upgrade his trial

tactics (Tr. 473, 508-510, 523-524).

The most critical exchange between the court and the

attorney occurred when the court interrupted a question

the attorney was directing toward a witness during

cross-examination, and advised the attorney that he was

testifying and that the form of the question was improper.

Shouting in protest, the attorney declared that the pros-

‘

ecution had not objected to his form of questioning and

that, in essence, he was not able properly to cross-

examine the witness (Tr. 816-817). The court then

admonished him as follows (Tr. 817-818):

***(I}f you. will conduct yourself as a lawyer

should conduct himself in a courtroom, you will

receive every consideration. If you do not wish to

proceed in that manner, then you will not receive

every consideration; and there’s no reason for you to

raise your voice to the jury or this Court.

During its instructions to the jury on the following day,

the court advised the jury that its comments directed

toward counsel should not be taken as any indication

that it felt the defendants were or were not guilty, nor

should the jury attempt to reward or punish the defend-

ants because of any such incidents (Tr. 916-917).!

The court of appeals, upon whose opinion we rely,

properly ruled that there had been no prejudice to the

defendants (Pet. App. A7):

The trial court has a duty to see that the facts are

developed and the jury not left confused. The court

here acted within its discretion in warning counsel

to desist from what it considered to be unnecessary

actions. None of the court’s comments were directed

to the defendants’ credibility or the strength of

their case. The case against them was not a weak

one, and the court’s instructions to the jury were

sufficient to correct any prejudice which might have

resulted because of its comments to counsel.

‘At the beginning of the trial,.as well, Judge Kellam advised

the jury that they should not be affected by vigorous courtroom

interchanges (Tr. 22-23).

~

5

See United States v. Weiss, 491 F.2d 460 (C.A. 2),

certiorari denied, No. 73-1736, October 15, 1974; United

States v. Boatner, 478 F.2d 737 (C.A. 2), certiorari denied,

414 U.S. 848.

3. The claim that petitioners were denied their right

to a speedy trial is also without foundation.

Petitioners were originally indicted on November 8,

1971 (Transcript of April 2, 1973, hearing on motion

to dismiss, p. 4). A four day continuance was granted

on March 9, 1972, because the key government witness,

Ellen O'Meara, had for the first time requested a grant

of immunity. The case was continued with the agreement

of defense counsel on March 13, 1972, because the gov-

ernment had not had sufficient time to obtain immunity

for Ms. O’Meara and because defense counsel was ill

(Transcript of April 17, 1973, hearing on motion to dis-

miss, pp. 41-42). The immunity request was finally ap-

proved on July 10, 1972. The government was then un-

able to locate Ms. O’Meara until September 1972,

when she was found to be incarcerated in a New York

state prison; it was, however, impossible to obtain: her

release on a writ of habeas corpus ad testificandum from

New York State officials until the March 1973 term of

grand jury, when petitioners were reindicted? (Transcript

of April 2, 1973, hearing on motion to dismiss, pp. 6-7).

The trial on the superseding indictment commenced

on May 24, 1973, the original indictment having been

dismissed without prejudice on April 2, 1973.

2The government's efforts to locate Ms. O'Meara began in June

1972, before immunity was secured for her. From October 1972,

the government sought to obtain her from New York State penal

authorities, who initially requested that she be extradited.

6

During this time, petitioners’ attorney had written

two letters to the Assistant United States Attorney in

charge of the case and had conversed with him several

times, requesting that the indictments be dismissed. No

request for a speedy trial was made to the court until

the April 2, 1973, hearing on the motion to dismiss

(April 2 Tr., pp. 8, 10). During this period, petitioners

were free on personal recognizance (id. at 5).

In Barker v. Wingo, 407 U.S. 514, this Court held that

four factors are to be considered in determining whether

the right to speedy trial has been violated: (1) the

length of the delay; (2) reasons for the delay; (3) the

defendants’ responsiblity to assert their right; and (4)

prejudice suffered due to the delay. Consideration of

those factors in light of the facts of this case shows that

petitioners were not denied their right to a speedy trial.

The delay was not unreasonably long in light of the

reasons for it. The 18-month period between the original

indictment and the trial was not wholly attributable to

the government. From November 1971 to March 1972, a

period of four months, and from March 1973 to May 1973,

a period of two months, the cases were moving routinely

from indictment through arraignment and to trial. The

early 45-day continuance was agreed to by defense coun-

sel and occasioned in part by his illness. The remaining

period—slightly less than 11 months—of the delay was

primarily due to the government’s inability to locate and

obtain. the surrender of Ms. O’Meara. The circumstances

here could not have been changed, nor the case expedited,

regardless of the priority assigned to the matter or the

urgency accorded it by the United States Attorney. See

Pitts v. North Carolina, 395 F.2d 182 (C.A. 4).

> PPro

;

Petitioners did not assert their right to a speedy

trial until April 2, 1973. The earlier letters and phone

calls to the prosecutor were essentially attempts to obtain

a dismissal of the indictment.

Finally, as both courts below found, “no prejudice

was shown in any event as [petitioners] had not been

incarcerated or otherwise suffered any material damage

to their defense” (Pet. App. A3).4

3The letters sent to the prosecutor (Appendix to petitioners’

brief in the court of appeals, p. 21) indicate that petitioners wanted

the government to follow the course of the first indictment against

a then co-defendant, Jack Booher, by dismissing the indictment and

foregoing prosecution. They only asserted their speedy trial rights

when, at arraignment on the re-indictment, they knew that Booher

had also been re-indicted and would be prosecuted. This may ac-

count for the fact that a request was not made to the court until

the April 2, 1973, hearing.

‘Petitioners contend that the delay “saw the death of two witnesses

material to the defense” (Pet. 8). The witnesses were petitioner Jesse

Simpkins’ mother and one Howard Strickland.

Petitioners’ version of what Strickland would have testified is

set out in the transcript of the April 17, 1973, hearing on the

motion to dismiss at 19-22. In denying that motion, the trial judge

correctly concluded, “I doubt seriously that [Strickland’s] testimony

would have been of any consequence.” /d. at 58.

As to the mother, Mrs. Hattie G. Simpkins, petitioners apparemly

never intended to call her for the trial scheduled on March 9, 1972,

or at any other time. She was not subpoenaed for the original

trial date, although another family member who was expected to

testify was subpoenaed. /d. at 47.

Mrs. Simpkins, who was in her seventies, suffered a stroke in

August 1970, and remained in the hospital constantly until her

death on January |, 1973. Had petitioners actually wanted Mrs.

Simpkins as a witness, they could have taken a deposition to pre-

serve her testimony pursuant to the provisions of 18 U.S.C. 3503.

In fact, this possiblity was considered but not acted upon. /d. at 50-51.

In any event, as the trial court concluded, Mrs. Simpkins’ testi-

mony would have been of no practical value to the defense. /d.

at 59. It was not significant enough to establish a “reasonable pos-

8

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoperT H. Bork,

Solicitor General.

FEBRUARY 1975.

sibility that the jury could have reached a different result by con-

sidering the asserted evidence foreclosed by delay.” Favors v. Eyman,

466 F.2d 1325, 1328 (C.A. 9)); Turner v. Slayton (C.A. 4), No.

73-1027, February 7, 1974.

DOJ-1975-02