Petition for Writ of Certiorari — Johnson v. United States

SUPREME COURT OF THE UNITED STATES

| NOV L iSi4

OCTOBER TERM 1974

NO, 74-514

HOWARD NICHOLAS JOHNSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Of Counsel:

CHARLES O. BAIRD, JR.

Attorney at Law

1220 lst Fed. Rida.

Atlanta, Georgia

STEWARD CARTER

Attorney for Petitioner

2828 N. Atlantic Avenue

Datona Beach, Florida

32018

Telephone: [904] 672-8679

EMILE A. CARMOUCHE

Attorney for Petitioner

227 West Fifth Street

P.O. Box €05

Crowley, Louisiana 70526

Telephone: [318] 783-0685

INDEX

Page

TABLE OF AUTHORITIES CITED ii

OPINIONS BELOW ws:

JURISDICTION 4

QUESTIONS PRESENTED 6

STATUTES AND RULES INVOLVED 8

STATEMENT OF THE CASE 11

PEASONS FOR GRANTING THE WRIT 23

1. Conflict Among Circuits 23

2. Important Federal Question

“hich Has Not Been, But Should

Be, Decided by This Court;

Additionally, the Court Below

Has Decided this Case ina

Manner Obviously in Conflict

With the Intent of This Court

in Promulgating Rule 23(c),

Federal Rules of Criminal

Procedure

CONCLUSION 38

APPENDIX “A" (5th Circuit Opinion) 40

APPENDIX "B" (Transcript of Comments

hy the Trial Court and Taken by

the Fifth Circuit Court of Appeals

to sufficiently substitute for

findings of fact under Rule 23(c),

F.R.Cr.P. a2

CERTIFICATE OF SERVICE 77

TABLE OF AUTHORITIES CITED

CASES: Page

Blunden v. United States, 169 F.2d 991

(6 Cir. 1948)

Glasser v. United States, 315 U.S. 60

(1942)

Howard v. United States, 423 F.2d 1102

(9 Cir. 1970) 23, 26,

Lustiger v. United States, 386 F.2d 132

(9 Cir. 1970)

United States v. Livingston, 459 F.2d 797

(3 Cir. 1972) 25, 29,

In re Winship, 397 U.S. 358 (1970) 34,

STATUTORY AND RULES PROVISIONS CITED:

15 U.S.C. § 77e(a) 9,

15 U.S.C. § 77q(a)

18 U.S.C. § 1341 10,

28 U.S.C. § 1254(1)

Sup.Ct. Rule 19(1) (b)

Rule 23(c), F.R.Cr.P.

a a oe a oe

SECONDARY AUTHORITIES CITED:

2 Wright, Federal Practice & Procedure,

Criminal § 374 a0, 3d,

32

33

11

12

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1974

NO, 74-514

HOWARD NICHOLAS JOHNSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Feopondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE THE CHIEF JUSTICE OF THE

UNITED STATES AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES OF AMERICA:

The petitioner, HOWARD NICHOLAS

JOHNSON, prays that a writ of certiorari

issue to review the opinion and judgment

of the United States Court of Appeals for

the Fifth Circuit rendered on June 28, 1974.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Fifth Circuit is reported at 496

F.2d 1131-1138, inclusive, and, for the

convenience of this Court, appears herein

at Appendix A, post. That portion of the

opinion below upon which this petition is

based is reported at 496 F.2d 1136 et seq.

of the 1974 slip opinions of the Fifth

Circuit.

No written findings of fact or con-

clusions of law were made by the District

Court in this proceeding without a jury.

The Trial Judge conditioned waiver of a

jury trial on defendant's waiver of his

right to request special findings of fact

and conclusions of law pursuant to Rule

23(c), F.R.Cr.P. The Court of Appeals

considered the statements casually made

by the trial judge from the bench during

the course of rendering its verdict and

at the time of sentencing to serve as evi-

dence of the Trial Court's special find-

ings of fact. While the record in the

Court below did not include all of the

comments made by the Trial Judge in the

course of its decision that petitioner

was guilty of seven of the nine counts

alleged against him, all portions of the

transcript relied upon by the Court below

to cure the error of conditioning the

grant of a bench trial upon the waiver of

the right to request special findings of

fact and conclusions of law appear in the

Appendix to the Briefs filed ie the Court

below, Volume II, PP. 526-529i, and are

reproduced herein at Appendix B, post.

JURISDICTION

The order of judgment of the United

States Court of Appeals for the Fifth Cir-

cuit was rendered on June 28, 1974. A

timely petition, for rehearing was denied

on October 3, 1974. A stay order was

sought from the United States Court of

Appeals pending this application for a

writ of certiorari, urging that the opin-

ion below conflicted with the opinions on

the same subject rendered by the Third

and Ninth Circuit Courts of Appeals and

that this case would likely be heard by

this Honorable Court to resolve the con-

flict among the Circuits on the points of

law presented by this petition. The Court

below denied that stay application.

Following issuance of the mandate of

the Court below, the District Court in

which petitioner was convicted stayed en-

forcement of its judgment for a period of

thirty (30) days in order that this peti-

tion might be filed prior to the arrest of

petitioner and enforcement of the judgment

obtained against him in the manner of

which instant complaint is made. The

District Court stay was also sought, and

apparently based, upon petitioner's

assertion that imprisonment at the present

time would interrupt petitioner's prepara-

tion for trial on another indictment in

the Eastern District of Louisiana and that

time was needed in which to make provision

for the maintenance of petitioner's family

during his impending absence. An appli-

cation to Mr. Justice POWELL, Circuit

Justice fer the Fifth Judicial Circuit of

the United States, is anticipated should

the District Court, at the expiration of

the said thirty day period, subsequent to

the filing of this petition, refuse to

further stay enforcement of the judgment

pending review by this Honorable Court.

The jurisdiction of this Honorable

Court to review on writ of certiorari the

final judgment of the United States Court

of Appeals, affirming the final judgment

and sentence of the United States District

Court for the Northern District of Geor-

gia in this Federal criminal case, is

vested, and is invoked by petitioner

under, 28 U.S.C. § 1254(1). See, also,

Rule 19(1)(b) of the Rules of this

Honorable Court.

QUESTICNS PRESENTED

1. Whether a District Judge, enter-

taining a motion under Rule 23(a), F.R.Cr.

oa

P., to waive trial by jury and to proceed

before the Court sitting without a jury,

pursuant to Rule 23(c), F.R.Cr.P., may

properly condition the grant of a bench

trial upon the waiver by the defendant of

his right to request special findings by

the Trial Judge which, upon timely request,

would be the mandatory duty of the Triak

Judge under Rule 23(c), F.R.Cr.P.

2. Whether the error resulting

fYom the Geniai of Special findings in a

Situation where the Trial Court had

improperly ooneand the defendant to waive

his right to request special findings may

be cured by casual remarks made by the

Trial Judge in the course of rendering a

verdict and in pronovncing sentence upon

the defendant.

3. Whether, if such error may be

so cured, the Trial Court's comments,

casually made and not intended to

evidence the Court's belief of defendant's

guilt beyond a reasonable doubt, were

sufficient to substitute for special

findings under Rule 23(c), F.R.Cr.P.

STATUTES AND RULES INVOLVED

This case involves Section 17 (a)

of the Securities Act of 1933, 15 U.S.C.

§77a(a) (1970), Section 5(a) of the

fan

-533;-23 2-8:C:

§77e(a) (1970), 18 U.S.C. §1341 (Supp.

1974), and Rule 23(c), F.R.Cr.P., as

amended by this Court in 1966. The

text of the portions of those statutes

pertinent to the issues presented in

this petition are set forth as foilows:

15 U.S.C. §77q(a) provides:

It shall be unlawful for any

person in the offer or sale of any

i

securities by the use of any means

or instruments of transportation or

communication in interstate comverce

or by the use of the mails, directly

or indirectly—

(1) to employ any device,

scheme, or artifice to defrand, or

(2) to obtain money or pro-

perty by means of any untrue state-

rent of a material fact or any

orission to state a material fact

necessary in order to make the

atererts made, in the licht of

he circumstances uncer which they

re mace, not misleadinc, or

+

aoe) to enoage in any trans-

p—— ~ —— ~

C p—practice,er ecourse— or

Siness which operates or would

rerate as a fraud or deceit upon

tia purchaser.

£ U.S.C. §77e(a) provides:

Unless a registratior state-

ment is in effect as to a security,

it shall be unlawful for any person,

Girectly or indirectly—

(1) to make use of any means

cr instruments of transportation or

communication in interstate commerce

or of the mails to sell suck secu-

rity through the use or medium of

ary prospectus cr otherwise; or

(2) to carry or cause to be

carried through the mails or in

interstate commerce, by any means

or instruments of transportation,

any such security for the purpose

of sale or for delivery after sale.

18 U.S.C. §1341 (Supp. 1974), in

relevant part, provides:

Whoever, having devised or

intending to devise any scheme or

artifice to defraud, or for obtain-

ing money or property by means of

false or fraudulent pretenses,

representations, or promises, or

to sell, dispose of, loan, exchange,

alter, civ JAY istribute;, supply,

or furnish * * * any * * * spurious

* * * security, * * * or anything

represented to be or intimated or

Feld out to be such * * * spurious

article, for the purpose of execut-

ing such scheme or artifice or

attemptina so to do, places in any

post office or authorized depository

for mail matter, any matter or thing

whatever to be sent or delivered by

the Postal Service, or takes or

receives therefrom, any such matter

or thing, or knowingly causes to be

delivered by mail according to the

direction thereon, or at the place

at which it is directed to be

delivered by the person to whom

it is addressed, any such matter

or thing, shall be fined not more

-10-

—-

than $1,000 or imprisoned not more

than five years, or both. (As

amended by P.L. 91-375, §6(j) (11),

84 Stat. 778.)

Rule 23(c), F.R.Cr.P., provides:

Trial Without a Jury. Ina

case tried without a jury the court

shall make a general finding and

shall in addition on request find

the facts specially. If an opinion

Or memorandum of decision is filed,

it will be sufficient if the find-

ings of fact appear therein.

STATEMENT OF THE CASE

the facts relevant to the cuestions——

presented by this petition are un-

controvertec and therefore are presentec

to this Honorable Court in summary

fashion.

A nine count indictment was :e-

turned in this case, charging petitioner

with four counts of violation of 15

U.S.C. §7le(a) (selling unregistered

securities by mail); two counts of

-ll-

violation of 15 U.S.C. §77q(a) (fraudu-

lent sales of securities by mail), and

three counts of violation of 18 U.S.C.

§1341 (mail fraud).

Prior to the commencement of this

trial, defense counsel informed the

Court that it was defendant's intent to

move, pursuant to Rule 23(a), F.R.Cr.P.,

for waiver of trial by jury in favor of

trial te the Court without a jury as

provided in Rule 23(c), F.R.Cr.P. In

Chambers, the Trial Judge informed

counsel that he would not approve the

motion and try this case without a jury

unless defendant waived his right under

Rule 23(c), F.R.Cr.P., to special find-

ings of fact and conclusions of law. In

Court, the Trial Judge acknowledaed

having made such a condition upon his

me

grant of defendant's motion for a bench

trial, saying (Appendix to the Briefs

below, p. 20; Trial Tr. 4):

THE COURT: You have the right, if

you so desire, to waive a jury

trial, that is, by your own

agreement not to have a jury

trial. Do you understand that?

MR. JOHNSON: Yes, sir.

THE COURT: I am also required under

the law in a non-jury trial to

make findings of fact and con-

clusions of law, written find-

————— ae OL Sact aa COnciIusions Gt

law. However, 7 hav‘e already

advised ycur lawyer that in the

ever:t you would nct waive that

right that:.I would proceed te

try it by jury, because I just

don't have the time in which to

review it later on and make

findinas of fact and conclusions

of law.

You have the right to waive

the Judge's written findings of

fact and conclusions of law and

have him pronounce judgment at

the conclusion of the trial—

MR. JOHNSON: Yes, sir.

THE COURT: —on the various counts.

=13-

Now, do you understand that?

MR. JOHNSON: Yes, sir.

THE COURT: And do you waive your

right to have the judge make

findings of fact and conclusions

of law in this case?

MR. JOHNSON: Yes, sir, I do.

From the foregoing colloquy between the

Court and petitioner, the Court of

Appeals concluded (49€ F.2d at 1136; slip

opinion, Appendix A, post, p. 5213):

Thus the record demonstrates that

the district court specifically

conditioned the right to a non-jury

trial on the waiver of findings of

fact.

While noting that the Ninth and

Third Circuit Courts of Appeals had

previously determined that such a waiver

as the one spread upon the record in

this case were legal nullities and vio-

lative of Rule 23(c), the Court below

determined:

-j]4-

* * *A reading of. the record in

this case establishes that follow-

ing appellant's trial the district

court issued sufficient oral find-

ings of fact to cure whatever error

might have arguably resulted from

its refusal to make special findings

pursuant to Rule 23(c). Thus we pre-

termit the basic issue here present-

ed for a later case demonstrating

actual prejudice.

(496 F.2d at 1136; slip op., App. A,

So, S212)

* * * * * * * *

The Government vigorously con-

tends, however, that the trial court

through comments from the bench at

the time it delivered its judgment

and subsequently at the sentencing

hearing elucidated the grounds on

which it based its judgment. We

agree. Although the reasons de-

lineated at these two hearings were

not as complete as they could be,

they do suffice as a basis for in-

telligent appellate review. These

observations by the trial court

demonstrate to us that the court

applied the correct gegal principles

to the instant case.

It is not necessary for us to

answer the precise issue presented

to the Ninth and Third Circuits

-15-

since we hold that even assuming

that error was committed by the

trial court's imposition of the

condition, this error was neverthe-

less cured by its subsequent find-

ings from the bench.

(496 F.2d at 1138; slip op., App. A,

pp. 4215-1€) (Footnotes omitted.)

The "ohservations by the trial court"

that demonstrated to the Court below

that the trial court applied the correct

lecal principles to the instant case are

set forth herein <x exrtenec with cita-

ticns te the pages of the Appendix to

th.e Priefs on which such comments appear:

There is no evicence that this

was a restricted sale. Anybody who

wanted to buy it could buy that

came up and wanted to buy. There

was no offer to show the financial

status of the company. I attach

much more significance in my juda-

ment to the use of the corporations,

especially the names, as manipulat-

ing facts in the violations charged.

I therefore find the defendant

guilty also of Counts Six throuch

Nine.

-16-

And to sum up, I find the defend-

and guilty of One, Two and Three,

not guilty as to Counts Four and

Five, guilty as to Counts Six, Seven,

Eight and Nine. (Appendix to Briefs,

p. 526; Tr. 881)

* * * * * * *

THE COURT: * * *I made a judgment

based upon the evidence I heard

that the defendant was guilty of

seven counts—

MR. BAIRD (Defense Counsel): Yes,

sir.

THE COURT: —in this indictment.

Whether I am right on that or not

will depend upon the appellate

decision, obviously. But I felt

I was right. Otherwise, I would

not have done it. But, if I felt

there was any doubt really of his

innocence I would have so found.

The problem in a case like this,

we are dealing with what is known

as white collar crimes. We send

people off to prison every day for

stealing, rape, for assault, narco-

tics violations, and I guess we

have the great national mania about

those things. But we also some-

times don't give enough attention

to where these people get their

justification for doing these things,

and that is they see others who are

=-17=

more affluent that are able to live

on the edge of the law and sometimes

veer over the wrong side and then

they get away with it.

One of the problems we have in

the country todya, I think, is that

there are too many people who are

committing violent crimes really in

the name of right, that they have a

right to do this. This has been

something that's been very disturb-

ing to me, and I think other Ameri-

cans. And they say, "Well, people

in public life, people in business

are allowed to steal every day and

get away with it."

In spite of his record both in

the service and in public life, in

spite of the fact he's had injuries,

I do not feel that that is any

license at all to violate the law.

I considered that he violated the

law.

I do not consider, as you do, the

insignificance of the corporate

names that were involved in this

case. In fact, I considered them

to be very significant.

MR. BAIRD: Well—

THE COURT: And I consider them to

be significant, Mr. Baird, be-

cause corporations were used

and manipulated.

-18-

Now I will agree that most any

person who's got a high school

education or any education at all

can sit and look at something and

tell whether or not it is the same

name, but human experience i.as

shown us that people don’. do that

a lot of times, and, so, Congress

has seen fit to pass laws for the

protection of people who don't

protect themselves.

Sometimes, unfortunately, I am

one of those who doesn't protect

himself. However, I don't usually

say anuthing about it, because I'm

a little ashamed of it because I

was stupid. But that happens to all

of us.

I can well understand how the

people who took these certificates

didn't examine them with that much

scrutiny, because it had "Television

Productions" on it. ‘ One of them

might have had something else on the

back of it, at the end of ic, which

gave them different names, and they

got by the test in the Secretary of

State's office many times when pro-

bably they shouldn't, because there's

too much similarity. Nevertheless,

they get by.

I feel that “hat was not only

part—not only significant but was

part of the scheme, and, if I didn‘t

feel that way, I probably wouldn't

-]9-

have found him guilty. Not that

alone; there were other factors,

too.

Regardless of their innocence or

guilt involved in the matter, these

two gentlemen that went to Mr.

Johnson initially to get him to be

their angel, so to speak, but the

angel didn't turn out quite to be

an angel, and, in spite of their

ineptness in some matters, I don't

know that they had any involvement

one way or the other, they still

turned out, they didn't get——they

didn't know what was going on in

Florida, the corporation was being

used by Mr. Johnson and his wife.

Whether his wife did that at his

insistence or not, as many wives do,

I don't know. That's neither here

nor there.

I am taking into consideration

that Mr. Johnson doesn't have any

prior record, but I am also taking

into consideration the seriousness

of this offense, and I feel there

is a duty on the part of courts, not

only this court but all courts, to

view this type crime just as

seriously as it views crimes of

violence, and I view this crime

just as seriously as I view crimes

of violence. ,

So, in view of that, in view of

-20-

what I have said, I am going to

sentence Mr. Johnson to the custody

of the Attorney General for a period

of three years on Counts One, Two,

Three, Six, Seven, Eight and Nine,

the sentence on each count to run

concurrently with each other, which

means that it is a three-year

sentence.

* * en * * * *

(Appendix to Briefs, pp. 529e-

529i; Trial Tr. 890-894.)

From the foregoing words, the Court of

Appeals divined that the district court

found petitioner guilty of the offenses

alleced in seven of the nine counts of

the indictment brought against him, upon

which the trial occurred. The Court of

wi >peals rather liberal construction of

the foregoing words of the district

court was stated as follows (496 F.2d at

1138 n. 8, slip. op., Appendix A, pos?,

pp. 5215-5216):

The trial court notec that the

=2) =

names of the various corporations

involved were very similar and that

it was quite understandable how

potential investors were misled and

that this confusion "was part of the

scheme" used to defraud investors.

He further commented that "there's

no question but that the securities

were unregistered, that they were

sold, and that the mails were used

in effecting those sales." Addition-

ally, the district court observed

that "[t]here is no evidence that

this was a restricted sale, anybody

who wanted to buy it could buy that

came up and wanted to buy. There

was no offer to show the financial

status of the company.” It is not

necessary that special findings be

filed simultaneously with the

verdict. Indeed, one court has

held they may be filed subsequent

to sentencing. * * * -

The foregoing is insufficient to

establish proof beyond a reasonable

doubt of every essential fact necessary

to support a conviction for violating

the three statutes involved in this case,

and even if it were, the utterances by

the Trial Court, independent of the

~22=

evidence (which was totally within the’

province of the Trial Judge to interpret

and formulate conclusions of law), were

insufficient to justify the finding by

the Court below of such a comprehensive

legal theory as stated in the opinion of

the appellate court.

REASONS FOR GRANTING THE WRIT

1. THE COURT BELOW HAS RENDERED A

DECISION IN CONFLICT WITH THE

DECISIONS OF TWO OTHER CIRCUIT

COURTS OF APPEALS ON THE SAME

SUBJECT MATTER.

Rule 19(1)(b) of the Rules of this

Honorable Court indicates that one of

the principal duties of this Court is to

resolve conflicts among the Federal

Circuit Courts on sv stantial questions

of federal law. -

The Ninth Circuit Court of Appeals,

in Howard v. United States, 423 F.2d

1102 (9 Cir. 1970), a case in which the

defendant moved for a bench trial and met

no opposition untilspecial findings of

fact were requested pursuant to the

defendant's right under Rule 23(c),

F.R.Cr.P., the Court of Appeals for the

Ninth Circuit held (423 F.2d at 1104):

On our own motion we notice

that the district court refused

to accept the waiver of jury trial

both by the Government and by the

defendant, unless and until the

defendant signed a waiver of his

earlier requested special findings.

Under Rule 23(c), F.R.Cr.P., the

defendant was entitled to those

findings, and it would have been

reversible error to have refused his

timely request for them. * * * We

cannot condone an avoidance of Rule

23(c) by the expedient of condition-

ing a jury waiver on waiver of

special findings. The defendant's

right to such findings is not

trivial, and his exercise of that

right is not to be impaired by the

exertion of pressure from the court.

Similarly, but in a case nearly exactly

on point with the instant case, the

=24-

Third Circuit Court of Appeals en banc

held that the conditioning of waiver of

jury trial by the Court upon waiver by

the defendant of his right even to re-

quest that the Court specially find the

facts and make conclusions of law there-

upon, violated Rule 23(b), F.R.Cr.P.

United States v. Livingston, 459 F.2d

797 (3 Cir. 1972). The Court summarized

the proceedings in that case as follows

(459 F.2d at 798):

Prior to trial defendant re-

quested that his case be tried to

the court without a jury. Noting

that “by waiving a jury, [defendant

was] asking the judge to find the

facts as well as the law," the

court declined to grant the request

"unless [the defendant]* * *agree[d]

that the Court [would] not have to

find findings of fact and con-

clusions of law." Defendant acced-

ed to this condition and the case

was heard without a jury. At the

close of the evidence the court

merely entered its order finding

defendant "guilty." * * *

While the Trial Court made comments

in two separate proceedings relative to

this case which could have been con-

strued as rulings on particular elements

of the alleged offenses, those comments

did not rule out th: various defenses

raised on petitioner's behalf nor did

they establish every essential fact

necessary to constitute a determination

of the petitioner's guilt. In this

regard, the Howard case involved com-

ments from the bench at the time ver-

dict was rendered, yet the Ninth Circuit,

unlike the Court below, did net conclude

‘that such comments cured the error

manifested by the original act of the

trial judge in conditioning the grant of

a bench trial upon the wadver of special

findings.

-26-

Also, the Third Circuit refused to

look to the facts of that case to de-

termine whether the Trial Judge was re-

quired to make special findings in that

case because of the complexity of the

legal and factual issues or the multi-

plicity of the legal theories upon which

conviction could be based. It went

straight to the initial error, saying

(459 F.2d at 798):

* * *Rather, we conclude only

that the district court erred when

it conditioned defendant's request

for a non-jury trial on a waiver by

him of his right to request that the

court find the facts specially.

We feel it is of special signifi-

cance that when the Advisory Committee

on Rules submitted proposed Rule 23(c),

F.R.Cr.P., to this Court for its ap-

proval, the porposed Rule contained the

provision that, upon a defendant's

request, the Court "may" specially find

the facts. This Court, having vast ex-

perience with matters of judicial review

and knowing the importance of having the

benefit of the thoughts of the trier of

fact as to the precise facts found,

changed the proposed Rule from dis-

cretionary to mandatory with respect to

the special findings provision and, in

such altered form, adopted Rule 23(c),

F.R.Cr.P., in its present form (with

respect to the point raised herein). See

2 Wright, Federal Practice & Procedure,

Criminal §374, p. 15 (1969).

In addition to the fact that the

Fifth Circuit's opinion in this case

conflicts with the Ninth Circuit's

opinion that the conditioning of a

bench trial upon the waiver of de-

fendant's right to special findings is

-22a2-

"reversible error," Howard v. United

States, supra, at 1104, and with the

Third Circuit's opinion that the waiver

of jury trial could not be conditioned

upon waiver of the "right to request"

that the Court specially find the facts,

Livingston v. United States, supra, at

798, the judgment and opinion of the

Court below even conflicts with the

alteration by this Court of the pro-

posed Rule 23(c) f¥om discretionary to

mandatory. The provisions of Rule 23(c)

were deemed necessary to intelligent

appellate rewew as evidenced by this

Court's action in making its provisions

mandatory. That Rule should not be so

easily circumvented as the record in

this case demonstrates. This case

presents an issue of great importance

~29-

to the administration of Federal Criminal

Procedure and it should be reviewed and

reversed by this Honorable Court.

2. THE OPINION OF THE COUR BELOW

DECIDES AN IMPORTANT QUESTION

° OF FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, DECIDED BY

THIS COURT, AND ITS DECISION

CONFLICTS WITH THE INTENT OF

THIS COURT, EVIDENCED BY ITS

ACTIONS WITH RESPECT TO RULE

23(c), F.R.Cr.P., AND THE TIME

THE SAID RULE WAS TENDERED TO

THIS COURT FOR APPROVAL.

As noted before, this Court sua

sponte, based upon its own experience in

matters of reviewing a case on the basis

of a general verdict, imposed the man-

datory duty upon the Trial Courts, when

they presided without a jury, to

specially find the facts and to make

detailed legal conclusions with respect

thereto when a request for special find-

ings is made by a defendant in a non-

-30-

jury case. 2 Wright, op. cit., supra, at

15. The Court below acknowledged that

the Trial Court "specifically conditioned

the right to a non-jury trial on the

waiver of findings of fact." 496 F.2d at

1136. In actuality, as pointed out by

the Third Circuit en banc in the

Livingston case, the district court im-

properly conditioned the waiver of jury

trial on a waiver even of petitioner's

"right to request that the court find the

facts specially." 459 F.2d at 798. The

Court below, however, concluded that the

district court, if it did err, cured the

error when it made certain remarks from

the bench. These remarks, however, were

not written, nor were they made with the

view that the Court of Appeals would

employ the statements then made as a

-321—

basis for determining what it was, in

fact, the district court determined by

its general verdict of guilty.

2 Wright, op. wea supra, at 16,

points out, "There is grate risk, however,

in failing to request special findings,

since in such a case the appellate court

may take the view of the facts that will

support the judgment below." As in-

stances where the appellate courts had

apparently taken the view most favorable

to the verdict, Professor Wright cited

Lustiger v. United States, 386 F.2d 132

(9 Cir. 1967), cert. den. 390 U.S. 951

(1968), and Blunder v. United States,

169 F.2d 991 (6 Cir. 1948). Surely, this

case will be found in the pocket part of

the cited treatise as another example of

reducing the barriers to easy conviction

-32-

if this Honorable Court does not act to

correct the judgment below.

The problem with taking the view of

the facts that will support the verdict

when attempting to determine if the Trial

Court has performed its mandatory duty

is that the standards to be applied by

an appellate court and by a trial court

are altogether different. On appeal, the

appellate court is bound, and because it

is bound it is accustomed, to taking the

view of the case most facorable to the

Government under the doctrine of "aider

by verdict." This Court communes that

it do so when reviewing the sufficiency

of evidence in a case being reviewed

upon appeal. Glasser v. United States,

315 U.S. 60 (1942). At the trial level,

however, the opposite standard is sup-

-33-

posed to be applied when reaching a ver-

dict. The Trial Court is required to

take the view of the evidence in the

light most favorable to the accused. In

re Winehip, 397 U.S. 358 (1970). More-

over, the Trial Court is required to

find, and when it is required to special-

ly find to put in writing, every fact

necessary to support a conviction to

have been proved beyond a reasonable

doubt. JId., at 364. By the Court of

Appeals' reliance upon the comments of

the Trial Court here, made at a time and

under circumstances distinctly different

from writing up special findings of

fact and making conclusions of law, the

Court of Appeals denied petitioner the

basic assurance that he has been ac-

corded the fundamental right at last

-34-

verbally stated in the Winship case. To

hold that the Trial Court's comments

served as a finding of proof beyond a

reasonable doubt, under circumstances

whete it was not necessary that the

reasonable doubt standard he applied——

casual commentary net thought to be made

the basis for review——, there is no

assurance that the preponderance of

evidence standard, referred to in the

Winshtp case, was not applied here.

Apparently, the trial court was con-

vinced to some degree of defendant's

guilt. From the record below, it can-

not be said that the theory expressed by

the Court of Appeals, interpolating the

various comments of the trial judge on

two separate occasions, was the same

theory of guilt upon which the Trial

Court convicted. Such a determination

could he made only if the Trial Court

made express findinas of fact or dicta-

ted into the record its reasons for

judgemnt.

This Court intended that Rule 23(c)

be applied when it is invoked. This

* The only way the casual remarks of the Trial

Judge could arguably be curative of his

failure to specially find the facts would be

for him to mate referance to every fact es-

sential to establish guilt beyond a reason-

able doubt. To cure the error of failing to

specially find the facts, the statement in

the record would have to be self-sufficient

to constitute the finding of facts required

by Rule 23(c), F.R.Cr.P. A close reading of

the casual remarks of the Trial Judge will

not satisfy the requirements of formal com-

pliance with Rule 23(c). It is respectfully

suggested that the Court of Appeals should

not be permitted to project those comments

actually made by the finder of fact upon other

evidence about which no comment was made and,

correlating both sources of fact, conclude

that the Trial Court's comments cured the

defect in these proceedings.

Court also intended that the district

courts should not coerce defendants in-

to acquiescing in the demands of the

judge, and calling that a waiver. This

Court, by making the Rule mandatory,

indicated a preference that the trial

courts find the facts specially. As

Professor Wright noted, if counsel does

not do so he runs substantial risk that

the appellate court, as it did here, will

pursue the theory of the case most sup-

portive of the verdict. Since this case

poses several important issues relative

to the application of Rule 23(c), and

since, we believe, the Fifth Circuit's

opinion would not square with a decision

of this Honorable Court on the subject

matter herein presented, we respect-

fully urge that this Court should grant

“

petitioner's application for a writ of

certiorari and it should review and

reverse the conviction obtained in the

district court.

CONCLUSION

For the foregoing reasons, this

Court should grant a writ of certiorari

to the Court of Appeals for the Fifth

Circuit, commanding the said Court to

transmit the record in this cause to

this Honorable Court for review of the

judgment made therein. After due

deliberation and argument upon the

issues presented herein, this Honorable

Court should reverse the judgment of the

Court below.

Respectfully submitted,

STEWARD CARTER

Attorney for Petitioner

2828 N. Atlantic Avenue

Datona Beach, Florida

EMILE A. CARMOUCHE ”

Attorney for Petitioner

227 West Fifth Street

P.O. Box 605

Crowley, Louisiana

Of Counsel:

CHARLES O. BAIRD, JR.

Attorney at Law

1220 lst Fed. Bldg.

Atlanta, Georgia

APPENDIX A

5202

UNITE ETATES of America, Viaintiff-Appellee,

Vv .

Howard Nicholas JOIPNSON, Defoudent-/.prellant.

No. 73-3519.

United Stetes Court of Appeals,

bifth Cireuit.

June 28, 1974.

Defendant was coavicted in United States District. Court

for the Northern District of Georgia at Atlanta, Albert J.

Henderson, Jr, 1, of selling unrcristered securities, fraudu-

lew Sader of securities and mail fraud and he appealed. The

Court of Ay peals, Gewin, Circuit Judge, Leld that evidence

that defondeat, president of Georgia corporation which he

merged with slorida corporate shell by usc of forged signa-

tures of directors of Georgia corporation, failed to inform

investors that the corporations hed bccn fraudulently merged

and pated tivestors inte believing they were purchasing stock

in non xictont corporation when in fact they were purchasing

stock in Florida corporetion supported finding that defendant

Obtained mony by means of untrue statements, and that any

error in tris) court’s conditioning grant of nonjury trial on

waiver of special findings of fact was cured by findings from

the beach.

Affirnied.

B. Cciconal Law co 4177

Conviction on soven counts on cach of which defenda

Conviction on soven counts on cach of which defendant

wit cenfenced to concurrent Ghree-yoar sentences would be

edad if there wes sufficient evidence under ary count.

Syoue Sythe Fey Ne ntae CLs dfieation

COPY REG se 104, 5 WE? Pe LEISHING CO

The Sytojecs, Metabo aml Kes Number Clasufi- eke

Catton Coa titel no pari ef th opinion of the cour. INDEXED

5203 UNITED STATES v. JOHNSON

2. Criminal Law c= 1159.27)

If on syy.al from conviction, viexsine evidence in light

most favervbhk to the Government, the reeord « monstrates

that suffi. ie at evidence was introduced from which a reason-

ably minded trier of facet could conclude that defendant was

guilty bevond a reasovuable doubt, the judgesont must be

affairs.

3. Socinities Kewl tion Cm nis

bvidk wee that defendant, president of Geory ia corpora-

lion, effected teerger of Uie comporetion vith a Uloida corpso-

rite sh Toby we of forecd siywetices Gh durectine of trooreis

corporation acd failed to inforns ee ote. . of the framdi ot

mover and pick d investors inte bo an, Ghey were puedes

ing stock in nonexister: cerperstion wien in feet they wee

purchesing steck in Flocida corporation «ocbli cost thet do-

fendent chtsived menos by meus OF catrue coctoments of

material 7 .t) ated omissions of rateriat tacts, S carte. Act

Of 54455, § Mids), (aM2s, 16 USCA. & Tigia), (2.422).

4. Criuinai Law 573

Claim of prejudice resuliiy, front preincictne nt delay

was not susiained by the record.

5. Crissinal bea 2-675

Triw) court has right to control the oreordy titreduction of

evidence and may prescit the necdies: renctition of oviden

wine is mercly cumuative and does not shed fight on now

facis not previously disclosed.

6. Cei-inal Jew «~ »675

Tral court properly exercised its dieretion when, con-

CGided with cumulative nature of the evidence offercd bs

defendant, it directed defendant to proceed with new matters,

and did not eapermisibly linsit defeneont's abitity to poo. at

an adiguats and full defen.

UNITED STATES v. JOHNSON 5204

7. Jury ©?28(2)

One docs not have a right to a nonjury trial unless the

tris] court so consents. Fed.Rules Crim.Proc. rule 23(c), 18

USCA.

8. Criminal baw =°257

Whether the defendant desires special findings should

norm:.lly be his decision alone. Fed.Rules Crim.Proc. rule

24e), 18 USCA.

9. Criminal Law 257

Underlying vurpose of civil rule pertaining to findings by

the court and crimine! rule directing trial court on request to

find the facts specially in case tried without a jury is to afford

reviewing court a clear understanding of the basis of the trial

court’s decision. Fed.Rules Crim.Proc. rule 23(c), 18 U.S.C_A.;

Fed iales Civ.Proce. rule 52, 28 U.S.C.A.

10. Criminal Lia 257

Jt is not necessary that special findings in case tried

without a jury be filed simultancously with the verdict. Fed.

Rules Crim.Pree. rule 23(a), 18 U.S.C.A.

IL. Crisciaal Lav c>116¢(1) :

Any error in trial court’s conditioning defendant’s request

for 2 nonjury trial on waiver of special findings of fact was

cured by triad court's findings from the bench. Ped.Rules

Crim.Vroc. rule 23(a), 18 U.S.C.A.

Aypoal from the United States District Court for the North-

ers Dirtrict of Georyzia.

Before GUWIN, THORNBERRY and SIMPSON, Circait

Judges.

GHW, Cireun Judge:

Appellant Howard N. Johnsen eppeals from the judgia-nt

ef conviction entered by the dis:rict court following his bench

a LO AL a en

PME LING ee DRE

5205 UNITED STATES v. JOHNSON

trial. On January 24, 1973, a nine-count indictment was

returned charging appellant with various violations of Section

17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) (1970),

Section 5(a) of the Securities Act of 1933, 15 U.S.C.

§ T7e(a) (1970), and 18 U.S.C.A. § 1341 (Supp.1974) (mail

fraud). Following his trial conducted from August 27th

through August 31, 1973, the district judge found appellant

guilty of seven counts of the nine-count indictment.’ Appel-

lant was sentenced to concurrent three-year sentences on each

of the seven counts.

On this Appeal, Johnson specifies four main contentions

which he ass@rts require reversal of his conviction. First, he

alleges thut the Government did not introduce sufficient evi-

dence to warrant his conviction. Second, he contends that the

Government’s preindictment delay impermissibly prejudiced

his ability to present an adequate defense to the charges.

Third, he alleges that the trial court improperly interfered

w'th his ability to present a complete defense to the charges.

Finally, hc asseverates that he did not intelligently and volun-

tarily waive his right to specific findings of fact by the trial

judge. After a careful review of the evidence introduced and

the applicable and controlling legal principles governing the

issues presented by appellant, we are firm in the belief that no

prejudicial crror was committed below and thus affirm.

I

[1,2] Since appellant was sentenced to concurrent three-

year sentences on each of the seven counts under which the

district court found him guilty, if there was sufficient evi-

1. Appellant was found guiliy of violating the tour counts charging

violations of Section 5 of the Securities Act, (sciling unregistered

securities) (Counts 6, 7, 8 and 9), two counts charging violations of

Section 17(a) of the Securities Act, (fraudulent sales of securities)

(Counts }] and 2), and one count of mail fraud, 16 U.S.C. § 1241

(Count 3). The trial judge acquitted appehami cn: the two other

counts of mail fraud (Counts 4 and 5).

UNITED STATES v. JOHNSON 5206

dence under any count, his conviction should be affirmed.

Furthermore on appeal, our standard for reversing on the

ground that there was insufficient evidence to warrant an

appellant’s convicticn is cireumseribed. Viewing the evidence

in the lighi most favorable to the Government, if the record

demonstrates that sufficient evidence was introduced from

which a reasonably minded trier of fact could conclude that

appell.nt was guilty beyond a reasonable doubt, the judgment

must be affirmed?

In Counts 1 and 2, appellant was charged and convicted of

violating Section 17(a) of the Securitics Act of 1933, 15 U.S.C.

§ Tigia) (1970). That Seetion provides in relevant part:

It shall be unlawful for any person in the offcr or sale of

any securities

(1) to employ any device, scheme, or artifice to defraud,

or

(2) to chtain money or properly by means of any uairuc

statemcnt of a material fact or any omission to stute a

material facet necessary in order to make the statements

matic, in the light of the cireumsstances under which they

were made, not misleading, or

(3) to enyaye in any transaction, practice, or course of

business which operates or would operate as a fraud or

deceit upon the purchaser.

The Government introduced evidence which fully placed ap-

pellant’s acts within the prohibitions delineated above.

In carfy 1969, James Owens and Robert Doty decided that it

would be a wise business venture to operate a television

production Imsiness in Atlanta, Georgia. They envisioned

that their business venture would produce television ecommer-

cials and other special feacures for the local television st:.tions.

2 Lawn v. United States, 355 U.S. 339, 307, 76 S.ct. 311, 2 L.Ed.2d

321 (558), Thomas v. United States, 4°1 F.2d 940 (Sth Cir. 1970);

United States v. Abisando, 439 1.2d £27 (Sth Cir. 1971).

3. See Glasser v. United States, 315 U.S. 60, 60, 62 S.Ct. 457, 8&5 L.Ed.

680 (1942).

_—

5207 UNITED STATES v. JOHNSON

However, one essential ingredicnt was missing from their

business dream. They needed a large amount of cznital.

Accordingly, Owens and Doty began to investiyate possible

sources of funds to complement their production skills gained

from long experience in the television industry.

Owens and Doty were introduced to a local Atlanta realtor,

Oliver Coleman. Coleman informed the two entrepreneurs

that he knew a man, Howard Nicholas Johnson, a Florida

resident, who might be interested in investing in their new

enterprise. Accordingly Johnson was contacted by Coleman

and came to Atlanta where he reviewed the tentative plans

for the new business. He readily agreed that Atlanta would

be a good market for such an undertaking and agreed to

finance it. On April 30, 1969, thesc proposals were formalized

into a newly incorporated Georgia corporation by Owens and

Doty. Johnson was named the president of the new corpora-

tion, Television Productions, Incorporated.

On May 15, 1969, Owens, Doty and Johnson entered into a

formal agreement. Johnson agreed to guarantee the purchase

of television equipment frem the Ampex Coi poration of Cali-

fornia. Furthermore, he agreed to open a line of credit for

the new corporation at the Fulton National Bank in Atianta

in the amount of $100,000. In return, Johnson was conveyed

50% of the stock in Television Productions, Inc Additionally,

he was given the right to vote the retained shares of Doiy and

Owens in the event that the new corporation should fall in

arrears on its debts for a period of three months.

Thus the traditional capitalistic mixture of expertise and

finances was joined in hopes of producing profits. However,

the events that developed subsequently demonstrated that

appellant intended the new corporation for uses other than

purely television production. On June 17, 1969, without the

knowledge of Owens and Doty, appellant merged Television

Productions, Incorporated with SanJd and Seas Industries, Ine.,

a Florida corporate shell. This incrger was consummated by

the use of the forged signatures of Doty and Owens on the

UNITED STATES v. JOHNSON 5208

merger plan. The plan stated that all the directors of Televi-

sion Productions, Inc., had approved the merger at a board of

directors meeting on June 6, 1969. Doty and Owens, both

directors, testified that they were unaware of any such meet-

ing and had never approved the merger. The newly merged

Florida corporation was named Television Productions Inter-

national Corporation (TPIC).

Johnson and an associate, J. Francke Fox, Jr., attempted to

interest prospective investors in what was termed “Johnson’s

Georgia television company.” These potential investors were

taken on a tour of the Atlanta premises. Many sales of stock

were culminated as a result of these visits and other contacts.

As a further inducement for the sale of the stock, Johnson

promised the investors that he would repurchase the stock

within a certain length of time at a substantial profit to the

purchaser.‘

Furthermore, Johnson wrote the investors on stationery

which listed the name of the corporation as “Television Pro-

ductions International, Incorporated.” At the time that John-

son wrote these letters, Television Productions International,

Incorporated was not in existence.’ The investors easily con-

fused the names of the existing Florida corporation, Televi-

sion Productions International Corporation and Television

Productions International, Incorporated. Additionally, John-

son signed these letters as president of the then non-existent

corporation. Thus, the investors were lead to believe that

4. The stock was selling for four dollars a share. Johnson agreed to

repurchase it at six dollars a share in twelve or eighteen months

from the original date of purchase.

= Evidently, Owens and Doty had become increasingly dissatisfied

wits their relationship with Johnson and thus sought to organize

their ow> corporation. They located an individual who was inter-

ested in financin;: their new’ corporation. On March 13, 1970,

Owens and ‘Doty incorporated in the State of Georgia the new

corporation which they named Television Productions International,

Inc. This was several months after Johnson had represented to the

investors that he was president of this new corporation with which

he had no connection.

‘

ote Pa, es ely Rh ee Lae seen |

O_O LEED TMT TOTS

they were buying stock in the Television Productions Interna-

tional Incorporated, a non-existent corporation, when in fact

they were buying stock in the Florida corporation.

From their testimony, it is evident that the potential and

actual investors were not experienced in trading in stock.

They were not familiar with the television production business

and had no prior experience with Television Productions,

Ineorporaicd, Television Productions [nternationai Corpora-

tion or Television Productions International, Incorporated.

They were never furnished « prospectus of Television Produe-

tions International Corporation by Johnson. Prior to their

purchase of stoch, they were not inforied that Uie stock was

“restricled.” Furthermore, it wes apoarent that the investors

did not uncersiand the consequences of buying restricted

stock.

On December 13, 1969, appellant opened a special bank

account at the Hahlifax National Bank of Port Grange, Florida

in the name of Television Productions International, Incospo-

rated. The cnly authorized siznatures for this uccount’ «cre

shown as Roward W. and Margaret Mary dohrson. In faet,

Television Productions International, Incorporated we- not ta

existence eat this time and neither Jobuson vor his wife was

ever Iepally connected with the corporation. A fiawvivlent

corporate resolution was presented to the bank to pcrnit

Johnson to open the account. Doty, Owens and the other

Television Productions Internitional Corporation stockholders

were never informed of the Florida bank account evea though

$19,099 of the proceeds of the szle of TPIC stock were placed

in the accourt which could be withdrawn persouully by appel-

lant and his wife.

When the time ervived for hororing Johnson’s previous

promises to the investors in THC to repurchase the stock, he

refused. Thus not only did the ifvestors buy stock in a

corporation which they did not know existed but when the

time ripened for honoring a primary impetus fer their invest-

ment, Johnson refuecd to honor his previous commitments.

UNITED STATES v. JOHNSON 5210

[3] We think the previously recited events amply demon-

strate a violation of Section 17(a). “. . . [I]t is not

necessary that the government prove that anyone was actual-

ly defrauded in order to show a violation of the statutes under

which defendant was indicted.” Estep v. United States, 223

F.2d 19, 22 (Sth Cir. 1955). The evidence establishes that

appellant “obtain[ed] money . . . by means of

untrue statement{s] of . . . material factls}] . .

{and} . . . omissions[s} . . . of material fact{s

.” 15 U.S.C. § T7q(a)(2).

The appellant mislead the investors by failing to completely

inform them of the nature of the corporations invelved. He

failed to inform the investors that Television Productions,

Incorporated and Sand and Seas Industries, Inc. had been

fraudulently merged without the knowledge or consent of the

other directors of Television Productions, Incerporated. He

misled the investors into believing that they were purchasing

stock in Television Productions International, licorperated, a

then 200 existent corporation, when in fact they were pur-

chasing: stock in Television Productions International Corpors-

tion. Additions: , appellant did not disclose to the investoss

thai the proceeds from the sales of TVIC stock would be

deposites in a bank aecount over which he would lave person-

al control without any benefit accruing to the corporation

involved. Thus matesia) facts were misstated and withheld

from the potential and active investors which may have

affected their decision to invest or not to invest. See S.E.C. v.

Texas Gulf Sulphur Co., 401 F.2d 888, 849 (2d Cir. 1968).

4 [4] Appellant’s next two contentions are also without mer-

it. First, he contends that the preindictinent delay unduly

prejudiced bis defense of the charyes made. This issue was

never reised below until after appellant had presented his

defense. Appellant has not asserted any grounds which sub-

stantiate bis claim of prejudice resulting from the Govern-

ment’s delay. Avcordingiy his claim is without merit. Scv

a

pre

5211 UNITED STATES v. JOHNSON

United States v. Marion, 401 U.S. 307, 321-325, 92 S.Ct. 455,

30 L.Ed.2d 468 (1971).

[5,6] Second, appellant contends that the trial court im-

permissibly limited his ability to present an adequate and full

defense by urying him to proceed with the presentation of his

case. Our reading of the record shows that the district court

was concerned with the cumulative nature of the evidence

offered by appellant and therefore directcd him to proceed

with new matters. A trial court has the right to control the

orderly introduction of evidence and certainly may prevent

the needless repetition of evidence which is merely cumulative

and does not shed light on new facts not previously «disclosed,

See United States v. Caracei, 446 3°.2d 172, 177 (Sth Cir. 1971).

The record here demonstrates that the trial court was proper-

ly exercising its bread diserction. We find no abuse of that

discretion.

[7] Finally, Johnson contends that the district court imper-

missibly conditioned his request for a non-jury trial on the

vaiver of special finding of facts by the court. Rule 2) 07 the

Federal Rules of Criminal Procedure reads in relevant part:

(a) Trial by Jury. Cases required to be tried by jury shall

be so tried unless the defendant waives a jury trial in

writing with the approval of the court and the consent of

the government.

* + o « * * ‘ * * *

(c) Trial Without a Jury. Ina case tried without @ jury the

court shall make a general finding and shail in addition on

request find the facts specially. Vf an opinion or inemoran-

dum of decision is filed, it will bo sufficient if the findings

of facet appear therein.

It is basic textbook Jaw that one docs not have a risht to a

non-jury trig] unless the trial court so ccncents. Singer v.

Unitcd States, 380 ULS. 24, 8) S.Ct. 073, 18 Lied. Oso (1655).

When the defendant requests a bench triel, may the disiriet

court cendition the request on the waiver of specific finding:

UNITED STATES v. JOHNSON 5212

of fact by that court as provided by Rule 23(c)? A reading of

the record in this case establishes that following appellant’s

trial the district court issued sufficient oral findings of fact to

cure whatever error might have arguably resulted from its

refusal to make special findings pursuant to Rule 23(c). Thus

we pretermit the basic issue here presented for a later case

demonstrating actual prejudice.

At the commencement of appellant’s trial, the district judge

addressed appellant and his counsel. The following discussion

was held:

THE COURT: You have the right, if you so desire, to waive

a jury trial, that is, by your own agreement not to have a

jury trial. Do you understand that?

MR. JOHNSON: Yes, sir.

THK COURT: I am also required under the law in a

non-jury trial to make findings of fact and conclusions of

law, written findings of fact and conclusions of law.

However, I have already advised your lawyer that in the

event you would not waive that right that I would

procacd to try it by jury, because I just don’t have the

time in which to review it later on and make findings of

fact and conclusions of law.

You have the right to waive the Judge’s written find-

ings of fact and conclusions of law and have him pro-

nounce judgment at the conclusion of the trial—

MR. JOHNSON: Yes, sir.

THE COURT: —on the various counts. Now, do you

understand that?

MR. JOHNSON: Yes, sir.

THE COURT: And do you waive your right to have the

Judge make findings of fact and conclusions of law in this

case?

MR. JOHNSON: Yes, sir, I do.

Gyr

5213 UNITED STATES v. JOHNSON

Thus the record demonstrates that the district court specifica!-

ly conditioned the right to a non-jury trial on the waiver of

findings of fact.

The precise issue which is urged by appellant today has only

been resolved by two other circuit court opinions. In Howard

v. United States, 423 F.2d 1102 (9th Cir. 1970), the appellant

made a specific request for findings of fact. The trial court,

however, refused to permit a bench trial until the appellant

executed a waiver of his earlier request of special findings.

The Ninth Circuit, in strong language, rejected the trial

court’s conditions for a non-jury trial, stating:

We cannot condone an avoidance of Rule 23(c) by the

expedient of conditioning a jury waiver on a waiver of

special findings. The defendant’s right to such findings is

not trivial, and his exercise of that right is not to be

impaired by the exertion of pressure from the court.

423 F.2d at 1104. First, it should be noted that the Howard

case is somewhat distinguishable from the present fact situa-

tion. Unlike appellant Howard, Johnson never requested

specific fact findings. Second, at no time during the trial or

following trial, did Johnson request special findings. In How-

ard the court gave emphasis to a timely request for findings

in the following statement:

Under Rule 23(c) of the Federal Rules of Criminal Proce-

dure the defendant was entitled to those findings, and it

would have been reversible error to have refused his timely

request for them. (emphasis added)

423 F.2d at 1104. Finally, while the trial court in Howard did

not make any special findings, the trial court in the instant

case at the time it rendered its verdict and at the sentencing

hearing, did make comments from the bench which cured its

initial refusal to make specific findings of facts. These com-

ments will be discussed below.

The Howard opinion was adopted as the guiding rule of law

by the Third Circuit sitting en banc in United States v.

UNITED STATES v. JOHNSON 5214

Livingston, 459 F.2d 797 (8d Cir. 1972). The Third Circuit

posed the issue presented as“. . . whether it was permis-

sible for the district judge to condition his grant of defend-

ant’s request for a non-jury trial on defendant’s waiver of

findings of fact “and conclusions of law.” 459 F.2d at 797.

Importantly, Livingston differed from Howard in that appel-

lant Livingston never requested findings of fact. Livingston

like the instant case involved the issue of whether the district

court may condition a non-jury trial on waiver of specific

findings by the court even where there never was a request

for findings by the defendant and he specifically waived his.

rights at the behest of the trial court. .

In response to the issue presented, the Third Circuit held:

[T]he district court erred when it conditioned

defendant’s request for a non-jury trial on a waiver by him’

of his right to request that the court find the facts specially.

& a * * * * es * s &

Findings of fact are essential to proper appellate review of

8 conviction resulting from a non-jury trial. This was an

important consideration when the present text of Rule 23(c)

was promulgaicd, allcring pre-existing law and requiring

the trial iudge to make special findings, if requested.

459 F.2d 798. Accordingly, the case was not reverse but was

remanded to the district court so that it could make the

special findings of fact. See also, United States v. Snow, 484

F.2d 811, 812 (D.C. Cir. 1973) (where district court recognized

the need for special findings but through inadvertence failed

to do so, the case was remanded for special findings); Hay-

wood v. United States, 393 F.2d 780 (5th Cir. 1968) (where

general findings made by the district court were inconsistent

and confusing and the right of allocution was denied, the case

wus reversed and remanded).

[8] In some situations, it may be impermissibly coercive

for a trial court to condition a non-jury trial on the waiver of

special findings of fact. Special findings are necessary, espe-

5215 UNITED STATES v. JOHNSON

cially in a complex case, for an intelligent appellate review of

a defendant’s contentions. Whether the defendant desires

special findings should normally be his decision alone.

[9,10] The Government vigorously contends, however,

that the trial court through comments from the bench at the

time it delivered its judgment and subsequently at the sen-

tencing hearing elucidated the grounds on which it based its

judgment. We agree‘® Although the reasons delineated at

these two hearings were not as complete as they could be,

they do suffice as a basis for intelligent appellate review.’

These observations by the trial court demonstrate to us that

the court applied the correct legal principles to the instant

case® - -

6. We have held previously that findings of fact made from the bench

following the trial of a civil case may be sufficient to meet the

mandatory requirements of Rule 52, F.R.Civ.P. Ste Movible Off-

shore, Inc. v. M/V Wilken A Falgout, 471 F.2d 268 (5th Cir. 1973).

See also Amplex of Maryland, Inc. v. Outboard Marine Corp., 380

F.2d 112 (4th Cir. 1967). Of course, whether oral findings are

sufficient.will depend on the circumstances presented by each case.

7. Although not completely applicable to the instant criminal case,

our court has previousiy enunciated standards for determining

whether a trial court’s findings of fact are adequate in a civil suit.

In Gulf King Shrimp Company v. Wirtz, 407 F.2d 508, 515 (1969),

the court explained that:

“The purpose of F.R.Civ.P. 52 is to afford the appeliate court a

clear understanding of the basis of the trial court’s dccision.

Featherstone v. Barash, 10 Cir. 1965, 345 F.2d 246. ‘The ultimate

test as to the adequacy of findings will always be whether they

are sufficjently comprehensive and pertinent to the issues to

provide a basis for decision.’ Carr v. Yokohama Specie Bank,

Limited, 9 Cir. 1952, 200 F.2d 251, 255. ‘Findings may be

sufficient if they permit a clear understanding of the basis of

decision of the trial court, irrespective of their mere form of

arrangement.’ Featherstone v. Barash, supra, 345 F.2d at 250.”

The underlying purpose of Rule 52, F.R.Civ.P., and Rule 23(c),

F.R.Cr.P., is the same. In this case, the trial court has made

adequate findings for purposes of our review. See also Lettsonie v.

United States, 434 F.2d 907, 909 (5th Cir. 1970).

8. The trial court noted that the names of the various corporations

involved were very similar and that it was quite understandable how

potential investors were misled and that this confusion “was part of

the scheme” used to defraud investors. He further conmentcd that

“there’s no question but that the securities were unregistered, that

UNITED STATES v. JOHNSON 5216

[11] It is not necessary for us to answer the precise issue

presented to the Ninth and Third Circuits since we hold that

even assuming: that error was committed below by the trial

court’s imposition of the condition, this error was nevertheless

cured by its subsequent findings from the bench.

Accordingly, the judgment of the district court is

Affirnied.

they were sold and that the mails were used in effecting those

sales.” Add.tionally the district court observed that “[t}here is no

CVid nes that this was a restricted sale, anybody who wanted to buy

it could boy thet cany up and wanted to byy. There was no offer

to shew wee tacneml -tatus of the company.” It is not necessary

that ope csal iaknys be tiled simultaneously with the verdict. In-

dood, one court has held they may be filed subsequent to sentencing.

Sce Unned Staies vo Opden, 484 F.2d 1274 (9th Cir. 1974).

(Tr. 881] {[A. 526]

APPENDIX B

by reason of the investment letter.

According to the Continental Tobacco

case and the facts in this case, it seems

to be much stronger in that case on that

particular issue.

There is no evidence that this was a

restricted sale. Anybody who wanted to

buy it could buy that came up and wanted

to buy. There was no offer to show the

financial status of the company. I at-

tach much more significance in my judgment

to the use of the corporations, especially

the names, as manipulating facts in the

violations charged. I therefore find the

defendant guilty also of Counts Six

through Nine.

And to sum up, in summary, I find the

defendant guilty of One, Two and Three,

not guilty as to Counts Four and Five,

guilty as to Counts Six, Seven, Eight and

Nine.

Mr. Taylor, would you please prepare

a judgment accordingly and present it to

me sometime today.

Mr. Baird, would you have your client

please report to the Probation Officer,

and he will notify your client of a sen-

tencing date which will be sometime later.

THE CLERK: Judge, this is a new

thing we {End Tr. 881, App. 526]

[Tr. 883; A. 527]

(Atlanta, Fulton County, Georgia; Friday,

September 28, 1973, 9:30 a.m., in open

court.)

THE COURT: All right, gentlemen,

the purpose of the hearing this morning

.

is for passing sentence in two cases. Are

there any other matters that need to be

brought up, Mr. Taylor --.~

MR. TAYLOR: No, sir.

THE COURT: -- before we- proceed with

the sentences? |

MR. TAYLOR: No, sir, I don't believe

so.

THE COURT: All right, sir.

THE COURT: All right, No. 28,005,

Howard Nicholas Johnson. -

(Whereupon, the defendant approached

~

the bench with counsel.)

THE COURT: Mr. Johnson, did you

receive a copy of the prior record? It

doesn't show any prior convictions, but

did you receive it?

-57J=-

MR. JOHNSON: Yes, I did, sir.

THE COURT: Is it correct?

MR. JOHNSON: Item No. 3, it says

"disposition unknown". It was dismissed.

(Tr. 884; A. 528]

THE COURT: All right, sir.

MR. JOHNSON: And 4, 5 and 6 were

all the same, a $25.00 check that my

daughter wrote, and that was all dis-

missed.

THE COURT: Well, it doesn't show

any convictions.

Is there anything, Mr. Baird, you

would like to say before sentence is

pronounced?

MR. BAIRD: Your Honor, this is a

case that I, I must say, that I saw

entirely different from Your Honor.

The man followed legal advice all

-58-

|

Wo dads aa es oe

the way through on this thing. There was

no intent, we still submit, to violate

any law of the United States. He suf-

fered a tremendous financial loss himself

in this investment. The people that in-

vested in it, they knew what they were

doinc.

The technical name of the corpora-

tion, I still dou'’t see the real traumatic

impact cf that. I£ Johnson's ea hadn't

come loose, and I do not know whether --

I know that Mr. Roberts received a copy

of the medical records from the Datona

Beach hospital, and the doctor was

supposed to write a letter about that.

Whether it has been received I do not

know.

THE COURT: It's in the file.

(Tr. 885; A. 529]

rn ° —

MR. BAIRD: It is?

THE COURT:, Yes, sir.

MR. BAIRD: All right, sir.

If his head hadm't come loose, and

he was afraid he was cashing in his

chips, I believe this company would have

still made a go of it, because he could

have been a very successful man.

He lost everything in the world.

He sold out everything he had. And in

this particular company he put, plus

what the people that wanted to get into

it, he lost well over a hundred thousand

Gollars of his own money in the thing.

I have known—I knew Nick in two

matters before this matter in Tennessee.

I did not represent him in Tennessee. In

fact, one of the cases, it wasn't in-

volving him, it was the sale of a motel

-60~

rise “ee

here in Atlanta, Nick was the purchaser

of the thing at the time, and the case

was tried right here in this room, try-

ing to hoodwink he and the real estate

salesman out of their commission and

what they were due them. In that case

we won it right here in this room. I

represented another person. He was just

a witness.

IT am familiar with this case in

Tennessee where it says it was dismiss-

ed on a technicality. I represented

another man in that case, the man that

sicned the note.

Pricr to the time this case was

even indicated in Tennessee Judae Frank

Johnson over in Montgomery, Alabama, had

ruled in a suit by a bank that the in-

surance policy, a single-pay premium

-6l—.,

policy on Nick Johnson's life was a

valid, good policy. The insurance

company would not pay the bank. It was

worth a hundred and chirty-sousthing

thousand dollars, a single premium in-

surance policy. I got the president of

the company, and I said, "Why didn't you

pay this?” He said, "I thought I could

sell it cheaper."

My man was acauitted, and they

found the president of the insurance

company and Mr. Johnson guilty because

he put up an insurance policy, paid-up

insurance policy, and all the testimony

at the court was it was a valid, good

policy.

A motion for new trial was filed,

and Judge Wilson --Judge Taylor, Judge

Bob Taylor, gave a new trial, and by that

-62-

time the insurance company, the receiver

for the State of Alabama paid off the

insurance company and the Government

dropped the case. I was flabbergasted

there.

Nick is a hard-working boy. He's

raised four--three grown children and

adopted three little tiny, physically

deformed children. I think the oldest

one is four.

“R. JOHNSON: That's right.

MR. BAIRD: And he's done a

magnificent job with those children who

are physically handicapped, and they are

almost perfectly normal children now, he

and his wife.

Nick has been a businessman. I am

in the process now of obtaining Govern-

ment records from New York. The testi-

mony from this stand was he made certain

statements, and he wasn't even in the

United States at that time. It takes a

long time to get those records and trace

back.

He served his country well. He's

highly decorated in the war. I didn't

believe all the bullet hole stories I

was told. I took him in the bathroom

at the office and made hir uné@ress, and

I can tell you there are twenty-two

bullet holes through this man's body.

He's just a mass of scars, plus his

skull, it's been operated on many times.

If he was a crook, there are a lot

of ways he could have done things that

wouldn't have shown whatsoevery, and

he's just not a crook. I have known him

a long time. .

This thing about--this thing in the

ra

WALL STREET JOURNAL that came out some-

what in this trial, we have submitted

documents from the Florida Institute of

Technology where they even demanded WALL

STREET JOURNAL retract the statement

about houseboats, and there weren't two,

it was just one. Nick himself told them

to check it out. It was put up as

security, and it was $10,500.00 on that.

He was goinc to give the Florida Institute

of Technology the balance of the

$10,000.00 for the houseboat.

You see, I might say a lct of

people for tax writeoffs and things

really give this school a lot of boats,

and they sell a lot of boats, give them

as tax deduction things to the Florida

Institute of Technology. All those

papers are there.

Judge, we have offered to make

restitution to the amount the people

lost or anything. The very evidence of

the Government witnesses was that they

bought the things from him and even

stopped the checks and didn't pay the

checks that Nick was goinc to use to

pay back the investors of the company

with, and the order of the district

court, the bankruptcy court, stopped

his suit even in the Civil Court of

Fulton County.

I told the Court at that time,

right after the argument, I was going

to sue Doty and Owens, and I certainly

am.

The only thina we can do is--I

just--well, I think Nick is too proud

to bea for himself, but I will beg for

%

;

Set MUA

en ee ee ee

him, and I have never begged in my life.

I think this is certainly a case that

merits and warrants probation to--

I might break up if I said any-

thing else. I feel very deeply about

this case.

THE COURT: Mr. Johnson, anything

you would like to say before sentence

is pronounced?

MR. JOHSNON: No, sir.

THE COURT: well, gentlemen, I

would agree with Mr. Baird on some of the

things he said. TI don't question-- I

didn't question during the trial, nor do

I question now, Mr. Johnson's war record.

No question in my mind he was awarded

certain medals for bravery and other

medals probably of less significance,

that he was wounded. Nor do I question

what he did for his country, regardless

a+

of any medals. Having served in World

War II, I know the hardships and de-

privations and heroism of men in that

war.

MR. BAIRD: Sir, may I interrupt

just one second to tell you something

else. Those records don't reflect that

this man was assigned outside the United

States to the Free French.

THE COURT: Yes. They reflect that.

MP. BAIRD: They do?

THE COURT: Yes, sir.

MR. BAIRD: I haven't --

THE COURT: That's what I was re-

ferring to.

MR. BAIRD: Anything that happened,

the United States would have denied

having known him.

THE COURT: It reflects he fought

-FR—

with the Free French.

Nor do I question the seriousness of

his injuries. I think that was rather

vividly displayed during the trial of the

case, not because he wanted it that way,

I din't mean to say that at all, but he

couln't help it, and for that reason I

regret it.

I'm also aware of his record of

public service as a senator in the State

of Kentucky. I don't question that.

But, gentlemen, those of us who

serve in public life don't have any

license to violate the law. I made a

judgment based upon the evidence I

heard that the defendant was guilty of

seven counts--

MR. BAIRD: Yes, sir.

THE COURT: --in this indictment.

-69-

whether I am right on that or not will

depend upon the appellate decision,

obviously. But I felt I was right.

Otherwise, I would not have done it.

But, if I felt there was any doubt

really of his innocence I would have so

found.

The problem in a case like this, we

are dealing with what is known as white

collar crimes. We send people off to

prison every day for stealing, rape, for

assualt, narcotics vislations, and I

guess we have the great national mania

about those things. But we also some-

times don't give enough attention to

where these people cet their justifica-

tion for doing these things, and that is

they see others who are more affluent

that are able to live on the edge of the

-70=-

law and sometimes veer over the wrong

side and then they get away with it.

One of the problems we have in the

Country today, I think, is that there are

too many people who are commiting violent

crimes really in the name of right, that

they have a right to do this. This has

been something that's been very dis-

turbing to me, and I think other

Americans. And they say, "Well, people

in public life, people in business are

allowed to steal every day and get away

with it.”

In spite of his record both in the

service and in public life, in spite of

the fact he's had injuries, I do not feel

that that is any license at all to viclate

the law. I considered that he violated

the law.

I do not consider, as you do, the

insignificance of the corporate names

that were involved in this case. In

fact, I considered them to be very

significant.

MR. BAIRD: Well--

THE COURT: And I consider them to

be significant, Mr. Baird, because cor-

porations were used and manipulated.

Now, I will agree that most any

person who's got a high school education

or any education at all can sit and look

at something and tell whether or not it

is the same name, but human experience has

shown us that people don't do that a lot

of times, and, so, Congress has seen fit

to pass laws for the protection of

people who don't protect themselves.

Sometimes, unfortunately, I am one

-72-

of those who doesn't protect himself.

However, I don't usually say anything

about it, because I'm a little ashamed

of it because I was stupid. But that

happens to all of us.

I can well understand how the people

who took these certificates didn't

examine them with that much scrutiny,

because it had "Television Productions”

on it. One of them might have had "Inc.",

another might have had something else on

the back of it, at the end of it, which

gave them different names, and they get

by the test in the Secretary of State's

office many times when probably they

shouldn't, because there's too much

similarity. Nevertheless, they get by.

I feel that that was not only part--

not only significant but was part of the

-73-

scheme, and, if I didn't feel that way,

I probably wouldn't have found him guilty.

Not that alone; there were other factors,

too.

Regardless of their innocence or

guilt involved in the matter, these two

gentlemen that went to Mr. Johnson

initially to get him to be their angel,

so to speak, but the angel didn't turn

out quite to be an angel, and, in spite

of their ineptness in some matters, I

don't know that they had any involvement

one way or the other, they still turned

out, they didn't get inn they didn't know

what was going on in Florida, the corpora-

tion was being used by Mr. Johnson and

his wife.

Whether his wife did that at his

insistence or not, as many wives do, I

-74-

See LAL ae eS 1

don't know. That's neither here nor

there. :

I am taking into consideration that

Mr. Johnson doesn't have any prior record,

but I am also taking into consideration ©

the seriousness of this offense, and I

feel there is a duty on the part of courts,

not only this court but all courts, to 3

view this type crime just as seriously

as it views crimes of violence, and I

view this crime just as seriously as I

view crimes of violence.

So, in view of that, in view of what

I have said, I am going to sentence Mr.

Johnson to the custody of the Attorney

General for a period of three years on

Counts One, Two, Three, Six, Seven,

Eight and Nine, the sentence on each,

count to run concurrently with each

-75-"

other, which means that it is a three-

year sentence.

Now, Mr. Johnson, under the law you

have a right to appeal your case.

And you have the right, of course,

to choose your uttorney that you desire

to use to appeal that case, if, of course,

you privately retain him.

However, if you cannot afford to hire

an attorney and do not have the funds with

which to secure legal services or legal

advice, then the Court, upon a showing,

will appoint an attorney to represent

you.

Do you understand that?

MR. JOHNSON: Yes, sir.

THE COURT: Do you desire to appeal

your case, sir?

CERTIFICATE

I certify that a copy of the

foregoing Petition for Writ of

Certiorari has been served upon the

Sdlicitor General of the United States

by United States Mail, first class

postace prepaid, by mailina 5 copies cf

same to him at his official address

in the office huilcing for the

Department of Justice, Washington,

D.C., this day of P

1974.

STEWARD CARTFR

Attorney at Law

Py by Pe