# Petition for Writ of Certiorari — Katranis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1499%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 423 U.S. 925 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1974 a no. 75.27.10 7 a MICHAEL P. KATRANIS and CHRIST M. KATRANIS, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. -————_ ¢—-— PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT a CARL ZIEMBA Attorney for Petitioners 2000 Cadillac Tower Detroit, Michigan 48226 (313) WO 20525 Interstate Brief & Record Co., 1036 Beaubien St., Detroit, Michigan 48226 962-8745—962-8732 TABLE OF CONTENTS Page Index to Authorities Cited. ................0.00.. ii SO I iF gh cewek lp eiveNe te vekk dene 2 eabement of Juriediotion. ....... ci ccccccaascen 2 Constitutional, Statutory and Rule Provisions In- WE Ae eC aKw nd i AD NER URENe wack Gh kane toa 2 NE FI sc ic ccckna nb anakueaWaxe see « 5 IE Oe a io eis aie ns cs Pan coe bhaeicews 6 Reasons for Granting the Writ.................... 13 MNO btS cs ckccdnbadnupwdssskaen boosie 31 Appendix “A”—Order of the Court of Appeals for the Sixth Cireuit affirming petition- OTs" CONN ses. iradinn ks 33 Appendix “B”—Order of the Court of Appeals for the Sixth Circuit denying peti- tioners’ Petition for Rehearing... . 34 Appendix ‘‘C’’—Indictment filed in District Court Criminal No. 47858. ............. 35 Appendix *‘D”—Indictment filed in District Court Criminal No. 48377.............. 38 id AUTHORITIES CITED Cases: Page American Tobaceo Company v United States, 328 US 781, 66 S Ct 1125 (1946). ...... cc cena 24 Keck v United States, 172 US 434, 19 S Ct 254 SE Fin CS ChASHESSEMAGAAD EAS WAReedsaea SS 30 Meer v United States, 285 Fld 65 (CAL0 1956)... 27 Mortsen v United States, 822 US 3869, 64S Ct 1040 SEE cab era keke oad aeeLAS AWA WA weds 8 6 24 Russell v United States, 369 US 749, 82S Ct LO3s8 SEE sie Cy RNA WSGE NRO A WES UR GR GRRE TEKS 15, 30 United States v Apex Distributing Company, 148 UD CEP ER AUPE Ps. isa'y vine Na waccce veces 28 United States v Baker, 444 F2d 1290 (CAL0 1971) 24 United States v Baker, 494 Fld 1262 (CAG LOT4) 21, 28 United States v Cameron, 460 F2d 1894 (CAS Re ee Ui Ga a Ab GN A Ww heb bncicds caves 21 United States v Cruikshank, 92 US d42 (1875)... l4 United States v Hess, 124 US 483, 8 S Ct 571 CEE Watdi d pewaune cuss sseakiadsadiawa and the agent answered ‘‘That’s correct” (a86). (Empha- his added.) It is clear from the careful formulation of the above question by the government attorney and from the un- equivocal answer given by the government agent that they understood George Nicolaou to have said that he was threatened by the Petitioners with harm if he reported to the FBI that they had beaten him in the Clifford Hotel on the morning of May 28, 1972. And there is nothing in the testimony of George Nico- laou which could persuade one beyond a reasonable doubt that the threats referred to anything else but his going to the FBI concerning the beating which he received in the Clifford Hotel on May 28, 1972. The threats, if made, clearly were made to prevent the communication by Nicolaou of information to investigators concerning the beating which he allegedly received at the Clifford Hotel on May 28, 1972. But this act of the Peti- tioners was in law an assault and battery or possibly a felonious assault under Michigan law; it was not a viola- tion of any federal statute of a criminal nature. As such, the acts of Petitioners did not fall under the proscriptive sanctions of 18 USC 1510. Under the circumstances and under the evidence in the case, there was insufficient evidence to carry the case to the jury and the court should have granted Petitioners’ motion for a directed verdict. See United States v Whit- man, 480 F2d 1028 (CA 6, 1973); United States v Baker, 494 F'2d 1262 (CA 6, 1974). The court also erred in denying Petitioners’ motion for a judgment of acquittal filed after trial. The verdict in a criminal case is sustained only when there is relevant 24 evidence from which the jury could properly find or infer, beyond a reasonable doubt, that the accused is guilty. Mortsen v United States, 322 US 369, 644 S Ct 1040 (1944); American Tobacco Co v United States, 328 US 781, 66 S Ct 1125 (1946). In passing upon a motion for judgment of acquittal, the trial judge must determine whether upon the evidence, giving full play to the right of the jury to determine credi- bility, weight the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt be- yond a reasonable doubt. If the trial judge concludes upon such evidence there must be such a doubt, he must grant the motion. The jury must not be allowed to guess and conjecture. United States v McCall, 460 F2d 952 (CA DC, 1972) ; United States v Leggett, 292 F2d 423 (CA 6, 1961); United States v Baker, 444 F2d 1290 (CA 10, 1971). Ill. THE INDICTMENT MUST ALLEGE THAT THE FEDERAL OFFICIAL TO WHOM INFORMATION CONCERNING A FEDERAL CRIME IS INTENDED TO BE COMMUNICATED IS AUTHORIZED TO INVESTIGATE COMMISSION OF FED- ERAL CRIMES. UNDER THE STATUTE, THE MAKING OF “THREATS” IS NOT AN OFFENSE; THE MAKING OF “THREATS OF FORCE” IS AN OFFENSE. The statute under which Petitioners were charged in No. 47858—18s USC 1510-—-provides that “the term ‘crimi- nal investigator’ means any individual authorized by a de- partment, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States”. 25 This language can only mean that if a person is not au- thorized to investigate or prosecute for violations of the criminal laws of the United States then the prevention by an accused of the communication of information to him by another is no offense under this statute. Hence, a person may be an employee of the Federal Bureau of Investigation but may not be authorized to investigate for violations of the criminal laws of the United States, or he may be an employee of the Depart- ment of Justice but may not be authorized to prosecute for violations of the criminal laws of the United States. Pre- vention by an accused of the communication of informa- tion to such person by another is no offense under this statute. Judicial notice may be taken of the fact that many em- ployees of the Federal Bureau of Investigation are not authorized to investigate for violation of the criminal laws of the United States. How can one know, and more to the point, how can members of the grand jury know which employees and which agents of the Federal Bureau of In- vestigation are authorized to investigate violations of the criminal laws of the United States? And must not the members of the grand jury find spe- cifically that the individual to whom one was prevented from communicating information was authorized to either investigate or prosecute for violations of the criminal] laws of the United States? And must not the grand jury set forth in the indictment handed up that the accused prevented another from com- municating information concerning violation of a criminal statute of the United States to an individual who was au- thorized to investigate or prosecute for the violation of the criminal laws of the United States? 26 The answer must be “yes” because without the element being present of an individual who is authorized to in- vestigate or prosecute for violations of the criminal laws of the United States no offense under this statute is com- mitted. ° ° ° The language of 18 USC 1510(a) proscribes the use of threats of force to accomplish the end of preventing the communication of information; the language does not pro- scribe any “threat”. The language is: **Whoever willfully endeavors by means of bribery, misrepresentation, intimidation or force of threats thereof...” In No. 47858 in Count Two, it is charged that the Peti- tioners “ |. . did willfully and knowingly endeavor, and cause an endeavor (sic), by means of force, threats and intimidation to obstruct... . ” It can be seen that Petitioners were charged with en- deavoring to accomplish the forbidden end by “threats” but not necessarily threats of force. Under the language of the indictment, a jury could find that Petitioners made a “threat” but not a threat of force or to use force and convict the Petitioners on that basis, and such conviction would not conform to the proscriptive intent of the statute. ° ° ° Petitioners in their motion to quash the indictment in No. 48858 specifically mentioned the above two shortcom- ings in the indictment. 27 It was error for the trial court to deny Petitioners’ said motion to quash the indictment. ° ° ° In United States v Seeger, 303 F2d 478, 482 (CA 2, 1962), where the defendant was charged with contempt of Congress, the Court being concerned with the defendant’s right under the Sixth Amendment to the Constitution “to be informed of the nature and cause of the accusation” made against him, held that a conviction under 2 USCA 192, the statute under which defendant was charged, could not be sustained unless the committee of Congress was duly empowered to conduct the investigation and that the inquiry was within the scope of the grant of authority, and that: “In view of this constitutional mandate, and the undisputed fact that the Government must estab- lish that a committee or subcommittee was duly authorized and that its investigation was within the scope of the delegated authority, an indictment under Section 192 is defective if the authority is not pleaded,... ” In Meer v United States, 235 F2d 65, 67 (CA 10, 1956), where the defendant was charged with perjury for mak- ing a false statement in a bankruptcy proceeding, the Court held: “While materiality of the false statement to the matter under inquiry or to the issue presented is not expressly made an element of the offense, we are of the opinion that Congress did not intend to make it an offense to make a false statement in a bankruptey proceeding, where such statement in- volved matters extraneous to such proceeding and not material to the inquiry or issue presented... . 28 “We conclude that materiality of the false state- ment to the matter under inquiry or to an issue raised in the proceeding is an essential ingredient of the offense defined in [18 USCA 152]... . “It is not sufficient to charge an offense in the words of the statute, unless the words themselves fully, directly and expressly and without uncer- tainty or ambiguity set forth all the essential ele- ments constituting the offense intended to be pun- ished.” In United States v Apex Distributing Company, 148 F Supp 365 (USDC D RI 1957), where the defendants were charged with conspiring to defraud the Government, it was held that under the statute there in question, it was im- material that the officer of the United States Navy who was bribed did not have the authority to place the orders in question and that, therefore, failure to allege that fact in the indictment does not render the indictment insuffi- cient. But the count of indictment which charged a viola- tion of the Federal Food, Drug and Cosmetie Act must contain an allegation that the activity of defendants in- volved interstate commerce because the court’s jurisdic- tion is conferred through the interstate commerce clause of the Constitution. The court went on to dismiss the count for insufficiency because of a lack of averment of the interstate nature of the shipment involved. In United States v Irick, 369 F Supp 594, 597 (USDC SD Tex 1974), defendants were charged that they did ‘‘forcibly assault, resist, oppose, impede, intimidate, and interfere with . .. a Special Agent of the Drug Enforcement Ad- ministration, United States Department of Justice.” See- tion 111 of Title 18 prohibits such conduct when directed 29 towards any person designated in 18 USC 1114, but See- tion 1114 does not name special agents of the Drug En- forcement Administration. The court in finding the indict- ment not to state an offense said: “A narrow, literal reading of the statute is con- sistent with general principles of criminal] law. (Citations.) The maxim, expressio untus est ex- clusto alterius (expression of one thing implies exclusion of another) is appropriate here. A court should not depart from the plain meaning of the statutory language. (Citation.) Also relevant is the principle that penal sanctions are to be strictly construed. (Citation.) The definition of criminal conduct is a legislative rather than judicial fune- tion, and the Courts should be reticent to broadly read criminal statutes.” See also United States v Williams, 470 F2d 1339 (CA 8, 1973), where the Court finds that authorization to inves- tigate is an element of the offense under Section 1510. ° ° ° The second count of the indictment in No. 47858 recites that Petitioners: ** .. did willfully and knowingly endeavor, and cause an endeavor, by means of force, threats and intimidation to obstruct, delay and prevent the com- munication of information by George Nicolaou re- lating to violations of 18 U.S.C. 1955 and 1511 to Special Agents of the Federal Bureau of Investiga- re eed In their motion to quash the indictment, Petitioners eom- plained that the averments in Count IT lacked specificity 30 and cited to the court Russell v United States, 369 US 749, 82 S Ct 1038 (1962) in support of the principle that the lan- guage of an indictment must descend to particulars so that an accused might know what it is that he must meet on trial. Petitioners also cited to the trial court and cite to this Court. Rule 7(c), Federal Rules of Criminal Procedure which provides: **The indictment or the information shall be a plain, concise and definite written statement of the es- sential facts constituting the offense charged... .” (Emphasis added.) See also: Keck v United States, 172 US 434, 19 S Ct 254 (1899). Petitioners timely raised the above issues to the trial court (a30, a33) in conformity to Rule 12(b)(2) Federal Rules of Criminal Procedure. It was error for the trial court to deny Petitioners’ mo- tion to quash the indictment. 31 CONCLUSION It is respectfully submitted that for the reasons above given, the Order of the Court of Appeals for the Sixth Circuit affirming Petitioners’ convictions is in conflict with the decisions of this Court and with the requirements of the 5th and 6th Amendments to the Constitution of the United States such that plenary review should be granted in this Court and Petitioners’ request for a Writ of Cer- tiorari should be granted. Respectfully submitted, CARL ZIEMBA Attorney for Petitioners 2000 Cadillac Tower Detroit, Michigan 48226 (313) WO 20525 33 APPENDIX “A” ORDER Nos. 75-1205 and 75-1206 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT United States of America, : Plaintiff-Appellee, v. Michae] C. Katranis and P Christ P. ‘‘Chris” Katranis, Defendants-Appellants. ; (Filed May 16, 1975) (John P. Hehman, Clerk) Before: Kdwards, Celebrezze, and Lively, Cireuit Judges. Appellants were convicted upon a jury verdict of en- deavoring to prevent the communication to FBI agents of information concerning violations of 18 UC. 44 371, 1511, and 1955, in violation of 18 U.S.C. §§ 1510 and 2, and of aiding and abetting another person in using handguns dur- ing the obstruction of a federal criminal] investigation, in violation of 18 U.S.C. $§924(c) and 2. Appellants take a direct appeal from their convictions, assigning nine counts of error. Upon consideration of the record, briefs, and oral argu- ment, it appears that Appellants were properly convicted of the federal offenses charged, that the evidence supports the verdict, and that no reversible error was committed by the District Court. Accordingly, the judgments of conviction should be, and they hereby are, affirmed. Entered by Order of the Court /s/ John P. Hehman Clerk APPENDIX "RB" ORDER Nos, 74 1808, 75-1206 UNTRED STATES COURT OF APPEALS FOR THIS SEN TH CEROCUPE United States of Ameren, Mlaintill Appellee, v. Michael C. Watranis and Christ PLS Chris” Katranis, Defendants Appellants, (Filed June 17, 1975) (John PL Hehman, Clerk) Before: Kdwards, Colebregge, and Lively, Cireuit Judges. Appellants having filed a petition for rehearing with this Court, and this Court having considered said petition and being duly advised in the premises, It is Ordered that the petition for rehearing be, and it is hereby denied. Entered by Order of the Court /s/ John P. Hehman Clerk ah APPENDIX "'C” INDICTMENT UNITED STATES DISERICT COURT WASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION United States of America, Plaintiff, Criminal No. 47858 Vv. Michael C. “Mike” Katranis, Violations: Ciregory George ‘Pete’ Ka- 18 U.S.C. 1510 tranis, and Christ M. Chris” 1I8 U.S.C. 371 Katranis, 18 U.S.C, 2 Defendants, The Grand Jury eharges: Count One 1, From on or about the 27th day of May, 1972, and continuously thereafter, up to and ineluding the 28th day of May, 1972, in the Mastern District of Michigan, and else- where, Michael C. “Mike Katranis, Gregory George Pete” Katranis, and Christ M. “Chris” Katranis, the defendants herein, did unlawfully, knowingly, and will- fully eonspire, combine, confederate and agree together and with each other, to violate Seetion 1510 of Title 14, United States Code. 2. It was a part of said conspiracy that the defendants, Michael C, “Mike” Katranis, Gregory George “Pete” Ka- tranis, and Christ M, “Chris’’ Katranis would willfully and knowingly endeavor by means of foree, threats and intimidation to obstruct, delay and prevent the eommunica- 36 tion of information by one George Nicolaou relating to violations of Sections 1955, 1511, and 371, of Title 18, United States Code, by Michael C. ‘‘Mike’’ Katranis, Greg- ory George ‘‘Pete” Katranis and Christ M. ‘‘Chris” Ka- tranis to Special Agents of the Federal Bureau of In- vestigation. Overt Acts At the times hereinafter mentioned, the defendants and co-conspirators committed the following overt acts in fur- therance of said conspiracy and to effect the objects there- of : 1. On or about May 28, 1972, the defendants Michael C. ‘‘Mike” Katranis, Gregory George “ Pete’’ Katranis, and Christ M. ‘Chris’? Katranis entered the premises of the Clifford Hotel in Detroit, Michi- gan. 2. On or about May 28, 1972, the defendant Michael C. ‘‘Mike” Katranis had a conversation with and re- lating to George Nicolaou. 3. On or about May 28, 1972, the defendant Gregory George ‘‘Pete’’ Katranis struck George Nicolaou with his fists and with the butt end of a handgun. All in violation of Section 371, Title 18, United States Code. Count Two On or about the 28th day of May, 1972, in the Eastern District of Michigan, the defendants Michae] C. ‘‘Mike” Katranis, Gregory George “ Pete’? Katranis, and Christ M. ‘‘Chris” Katranis did willfully and knowingly endeavor, and cause an endeavor, by means of force, threats and in- timidation to obstruct, delay and prevent the communica- 37 tion of information by George Nicolaou relating to viola- tions of 18 U.S.C. 1955 and 1511 to Special Agents of the Federal Bureau of Investigation, United States Depart- ment of Justice, in the Eastern District of Michigan. All in violation of Sections 1510 and 2, Title 18, United States Code. This is a True Bill /s/ Fred D. Lalter Foreman /s/ Ralph B. Guy, Jr. United States Attorney /s/ Laurence Leff Attorney in Charge Detroit Strike Force United States Department of Justice Organized Crime and Racketeering Section 1064 Federal Building Detroit, Michigan 48226 (Telephone: 226-7252) Dated: 10-4-72 APPENDIX “D” INDICTMENT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION (Filed February 21, 1973) United States of America, : Plaintiff, | Criminal No. 48377 Vv. Michael P. ‘“‘Mike” Katranis and { Violation: Christ M. “Chris” Katranis, 18 U.S.C. 2 and Defendants. t 924(c) The grand jury charges: On or about the 28th day of May, 1972, in the Kastern District of Michigan, Michael P. “Mike” Katranis and Christ M. ‘‘ Chris” Katranis did unlawfully and knowingly use and carry, and did aid, abet and willfully and know- ingly cause Gregory George “Pete” Katranis and Christ M. “Chris” Katranis to carry certain firearms, to wit: two handguns, during the commission of the offense of ob- struction of a criminal investigation, a felony prosecutable in a court of the United States; 39 All in violation of Title 18, United States Code, Sections 924(c) and 2. This is a True Bill. /s/ Fred D. Lalter Foreman Ralph B. Guy, Jr. United States Attorney Eastern District of Michigan Laurence Leff Attorney in Charge Detroit Strike Force United States Department of Justice 1064 Federal Building Detroit, Michigan 48226 Telephone : 226-7252 Dated: 2-21-73 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1499%3A1. Public record. Not legal advice.