Petition for Writ of Certiorari — Muckenstrum v. United States

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*UPREME COURT, UW. & a FI

75-391] | AUG 13 1978

MICH ala

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

en

KATHLEEN MAUDE MUCKENSTRUM, GLENDA DALE HODGES,

JAMES MARSHAL REED and JEAN HERTZKA,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

NORMAN S. LONDON

LAWRENCE J. FLEMING

418 Olive Street

St. Louis, Missouri 63102

Attorneys for Petitioners

a A ES SE

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

“>>

INDEX

Page

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SD INET 5.0 S.Ganre ben pins aaa u antes Seas 0's 2

SE. <a in she eee Rs Se AKS EO Ran RU we oes 2

A. Conviction and Sentence ...............0005. 2

Se Se inc batkab ah dcnwes d 3

Reasons for Granting the Writ ...................... 6

I. Further direction is needed to resolve an apparent

conflict in the Federal Circuits and determine under

what circumstances the holding in Giglio v. United

States, 405 U.S. 150 should apply to payments of

money by the Government to its witnesses ........ 6

II. Guidance is needed from this Court in fashioning

an appropriate burden of proof reasonable doubt in-

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NEE 3s: \ Aine babs Ne dke e Meee ooo lca bake 11

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Table of Cases

Brady v. Maryland, 373 U.S. 83 (1963) .............. 6

Compton v. United States, 305 F.2d 119 (9th Cir. 1962) 9

Dunbar v. United States, 156 U.S. 185, 199 (1895) .... 9

PSI oma |

fone yg

li

Evans v. Janning, 489 F.2d 470 (8th Cir. 1973) ...... 7

Giglio v. United States, 405 U.S. 150 (1972) .......... 6, 7,8

Miles v. United States, 103 U.S. 304 (1880) .......... &-9

Napue v. Illinois, 360 U.S. 264, 269 (1959) .......... 6,8

Speiser v. Rondall, 356 U.S. 513, 523, 534 (1958) ...... re)

State v. Davis, 482 S.W.2d 486 (Mo. 1972) .......... 10

United States v. Alvero, 470 F.2d 981 (5 Cir. 1972) .... 10

United States v. Atkins, 487 F.2d 257 (8 Cir. 1973) .... 10

United States v. Barrbera, 386 F.2d 333 (2d Cir. 1973) .. 9

United States v. Crisco, 493 F.2d 232 (8th Cir. 1973) .... 9

United States v. Johnson, 487 F.2d 1318, 1325 (5 Cir.

STR eer k, cocirt css Cael Sans es HS 7

United States v. Librach, No. 75-1153 (8th Cir. July 30,

te aie een enh Ge end eae e 7

Statutes Cited

ARE Rl MMe era ane a re rare 2

Title 18 United States Code § 1952 ................5.. 2

Title 18 United States Code § 2421 .................. 2

Title 18 United States Code § 2422 ................ 2

Title 18 United States Code § 3651 ................ 3

SOA NIL EL I OI SE SAI RE 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

MS Liccuna ccs

KATHLEEN MAUDE MUCKENSTRUM, GLENDA DALE HODGES,

JAMES MARSHAL REED and JEAN HERTZKA,

Petitioners,

VS.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

Petitioners pray that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered in this cause on July 3, 1975.

OPINION BELOW

The opinion of the Court of Appeals is, as yet, unpublished,

but is appended hereto as Exhibit A.

JURISDICTION

The judgment of the Court of Appeals was entered in July

3, 1975. On July 30, 1975 this Court entered an order extend-

ing the time to File a Petition for Writ of Certiorari to and in-

cluding September 1, 1975. Jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. May the Government’s failure to disclose substantial pay-

ments to a Government witness be deemed harmless where there

is substantial evidence to support the conviction?

2. Is it error to instruct a jury that a “reasonable doubt”

must be “substantial rather than speculative”?

STATEMENT

A. Conviction and Sentences

This is an appeal from the judgments, convictions and sen-

tences of the United States District Court for the Southern Dis-

trict of Florida, wherein each of the defendants was convicted of

one count of conspiracy to engage in interstate prostitution ac-

tivities in violation of Title 18 United States Code § 1952 and

one count of using interstate facilities or traveling in interstate

commerce to promote prostitution activities in violation of Title

18 United States Code § 2421, and wherein appellant Reed was

convicted of an additional count of inducing a woman to engage

in interstate prostitution activities in violation of Title 18 United

States Code § 2422.

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Appellant Reed was sentenced to three years imprisonment

and a fine of $1,500.00 on each of the three counts of which he

was convicted; the prison terms to be served concurrently.

Appellant Hertzka was sentenced to two years imprisonment

on each of the two counts of which she was convicted; such

sentences to run concurrently.

Appellant Hodges was sentenced to two years imprisonment

on each of the two counts of which she was convicted; such sen-

tences to run concurrently; and she was further granted a split-

sentence treatment under Title 18 United States Code § 3651

such that all but 30 days of her sentence was suspended.

Appellant Muckenstrum was granted a suspended imposition

of sentence and two years probation on each of the two counts

of which she was convicted.

The United States Court of Appeals for the Fifth Circuit

affirmed the convictions.

B. Summary of Record

The indictment herein was couched in four counts: Count I

charged all of the appellants with conspiracy; Count II charged

appellant Reed with inducing Nevada Jean Robertson to en-

gage in interstate prostitution activities; Count III charged ap-

pellants Reed and Hertzka with using interstate telephone com-

munications to facilitate prostitution activities; and Count IV

charged appellants Hodges and Muckenstrum with traveling in

interstate commerce for purposes of prostitution.

The principal government witness, Nevada Jean Robert-

son, testified that she had met appellant Reed at a nightclub in

Dyersburg, Tennessee, where he induced her to return with him

to Miami, Florida, with the promise of employment (A. 65-66)

and that shortly after their arrival in Miami, Reed advised her

pan” ee

that she would be going to Florence, South Carolina, and pro-

vided her with $125.00 for air fare. (A. 73-74).

Miss Robertson further testified that upon her arrival in

Florence, she was met by Kathleen Muckenstrum and subse-

quently taken to Jean Hertzka’s house. (A. 74-75). She stated

that she first learned of the proposed prostitution activities while

in Florence, and that she worked in Florence as a prostitute for

about seven days, during which time she surrendered her re-

ceipts to Jean Hertzka and James Reed. (A. 78-82).

Another government witness, Earline Edwards, stated that she

had worked at Jean Hertzka’s place in 1970-1971, and had

assumed custody of the money earned by the girls which she

would eventually turn over to Jean Hertzka at the end of the day.

Although Edwards testified that she had never been arrested for

prostitution, it was stipulated that she had, in fact, been con-

victed three times for prostitution.

Additional government witnesses included Melanie Ann Gor-

don, who testified that she had worked and traveled to South

Carolina as a prostitute in the employ of James Reed, together

with aj ~.. ants Hodges and Muckenstrum (A. 145-148); and Eve

DeBlas, wno stated that she had been Reed’s housekeeper and

was aware that Reed lived with both appellant Hodges and appel-

lant Muckenstrum. (A. 183).

The defendants produced no evidence, but objected to various

jury instructions given by the Court, particularly to that in-

struction regarding burden of proof and reasonable doubt. The

jury returned a verdict of guilty as to all appellants on all counts

wherein they were charged.

Subsequently, on September 6, 1974, an evidentiary hearing

was held in defendants’ motion for a new trial. Nevada Jean

Armbeck, who had testified at trial as Nevada Robertson, stated

that she had been pressured into testifying at trial by F.B.I.

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Agents Brunner anc Stevens, who threatened her with physical

harm, as well as prosecution. (A. 370, 374, 397). The witness

then recanted her trial testimony and stated that she had not

traveled to Miami at appellant Reed's urging, but had, in fact,

requested of him that she go to Miami to work as his house-

keeper and governess for his children. (A. 371). Mrs. Armbeck

testified that after her arrival in Miami, she was contacted by

Melanie Gordon, who gave her the phone number of Jean

Hertzka in South Carolina, and told her that “she could earn real

good money for a week.” (A. 372). She further testified that

Reed had not given her any money for air fare to South Caro-

lina, and was, in fact, unaware that she was in South Carolina

until after he arrived (A. 373) and that Reed had received none

of the money earned by her while she was working in South

Carolina.

Nevada Jean Armbeck went on to testify that just prior to her

testimony at trial she had stayed with one, Penny Griggs in

Chicago (A. 375) where she was visited by two U.S. Marshals,

who told her that she had to leave the area, purchased a plane

ticket for her, gave her about $112.00, and sent her to Denver.

(A. 376). In Denver, she was met by another Marshal, who gave

her a $300.00 check for living expenses. Subsequently, she

received additional money from the government in amounts of

$300.00, $268.00, $495.00 and $495.00. (A. 376-377).

After Nevada Armbeck’s testimony at the post-trial hearing,

the government produced, for the first time, a list of money

which indicated that the witness had been paid approximately

$1,000.00 prior to her trial testimony and one or two subse-

quent payments. (A. 413). The trial court, however, denied

petitioners’ motion for a new trial and the appellate court af-

firmed citing “overwhelming credible evidence.”

LA Edit ge

Carat! Se Adal nab ck

REASONS FOR GRANTING THE WRIT

1. Further Direction Is Needed to Resolve an Apparent Con-

flict in the Federal Circuits and Determine Under What Cir-

cumstances the Holding in Giglio v. United States, 405 U.S.

150, Should Apply to Ps ments of Money by the Government

to Its Witnesses.

It was well-established in Brady v. Maryland, 373 U.S. 83

(1963), that suppression by the prosecution of evidence favor-

able to an accused upon request of the defendant violates due

process, irrespective of the good or bad faith of the prosecution.

It is equally well-established that “favorable evidence” may

be either direct evidence or evidence tending to impeach the

credibility of a Government witness.

As this Court stated even prior to Brady, Napue v. Illinois,

360 U.S. 264, 269 (1959):

The jury’s estimate of the truthfulness and reliability of a

given witness may well be determinative of guilt or inno-

cence, and it is upon such subtle factors as the possible

interest in testifying falsely that a defendant’s life or lib-

erty may depend.

More recently, in the leading case of Giglio v. United States,

405 U.S. 150 (1972), this Court held that the defendant had

been denied due process where the evidence showed that the

Government failed to disclose an alleged promise of leniency

made to its key witness in return for his testimony. In so hold-

ing, the Court stated:

“Taliento’s credibility as a witness was therefore an im-

portant issue in the case, and evidence of any understand-

ing or agreement as to a future prosecution would be rel-

evant to his credibility and the jury was entitled to know

of it.” Giglio, supra, at 155 (emphasis supplied).

a en

The Court of Appeals for the Fifth Circuit in the recent case

of United States v. Johnson, 487 F.2d 1318, 1325 (5 Cir.

1974), was faced with a similar problem concerning the pros-

ecution’s failure to disclose a promise of leniency made to one

of its witnesses. The Court stated:

“Our guide in this matter is Giglio v. United States, su-

pra, and the series of Supreme Court cases discussed

therein. The rule is that presentation of known false evi-

dence, and non-disclosure of evidence affecting credibility,

are grounds for a re-trial if the deception was material,

that is if it might ‘in any reasonable likelihood have af-

fected the judgment of the jury.’ Giglio, supra, 405 U.S.

at 154 . . .” (emphasis supplied).

See also Judge Webster’s very comprehensive treatment of

the Brady rule in Evans v. Janning, 489 F.2d 470 (8th Cir.

1973).

Although the information withheld by the Government in the

instant case concerns matters other than a promise of leniency,

such matters nevertheless may have materially affected the jury's

assessment of the witness’s credibility and the ability of the

defense to adequately prepare for trial.

In fact a similar situation was found to require reversal in

the very recent case of United States v. Librach, No. 75-1153

(8th Cir. July 30, 1975). Reviewing the non-disclosure of

Protective Custody and Government subsidies, the Court of

Appeals for the Eighth Circuit reasoned as follows:

Defendant relies on the familiar rule that Government sup-

pression of favorable evidence material to the defense jus-

tifies a new trial irrespective of the good or bad faith of

the prosecution. Brady v. Maryland, 373 U.S. 83 (1963).

In Giglio v. United States, 405 U.S. 150 (1972), the Su-

preme Court reversed a conviction secured on a witness’s

— ye

false denial that the Government promised him leniency

for his testimony. Therein it noted that the particular wit-

ness’s reliability may have been determinative of guilt or

innocence. The Court held that nondisclosure of evidence

affecting the witness's credibility falls within the Brady

rule, provided “the false (or suppressed) testimony could

. in any reasonable likelihood have affected the judg-

ment of the jury . . .” Giglio v. United States, supra, at

154, quoting Napue v. Illinois, 360 U.S. 264, 271 (1959).

Application of these principles to the instant case calls for

a new trial. This is an egregious case of prosecutorial sup-

pression of evidence that was both favorable and material

to the defense. Evans v. Jannings, 489 F.2d 470, 475 (8th

Cir. 1973). The Government's failure to disclose protec-

tive custody and its substantial payment of almost $10,000

to Robert Fowler obviously could have affected the jury's

judgment of the witness’s credibility. The circumstances

were such that Fowler’s testimony was the primary basis

for determining Librach’s guilt. The Government's paying

a monthly subsidy to a witness is certainly a fact that should

be disclosed to the trier of the facts since it is relevant to

the witness’s interest in testifying.

Similar situations will undoubtedly arise as the Government

seeks to utilize the subsistence payments provisions of Pub. L.

910452. Consequently, it is important that both prosecution

and defense be provided with guidelines regarding the extent of

disclosure which will be required.

2. Guidance Is Needed From This Court in Fashioning an

Appropriate Burden of Proof Reasonable Doubt Instruction.

Both trial and appellate courts have been floundering in their

attempts to adequately define and instruct on the burden of proof

and the meaning of reasonable doubt. See e.g.: Miles v. United

—

States, 103 U.S. 304 (1880); Dunbar v. United States, 156 U.S.

185, 199 (1895); Speiser v. Rondall, 356 U.S. 513, 523, 534

(1958); Compton v. United States, 305 F.2d 119 (9th Cir.

1962); United States v. Barrbera, 386 F.2d 333 (2d Cir. 1973);

United States v. Crisco, 493 F.2¢232 (8th Cir. 1973).

In the instant case, the trial court gave the following explana-

tion of reasonable doubt:

“The burden of proving a defendant guilty beyond a reason-

able doubt rests upon the government. This burden never

shifts throughout the trial. The law does not require a de-

fendant to prove his innocence or to produce any evidence.

He may rely upon evidence brought out on examination of

witnesses for the government. If the government fails to

prove a defendant guilty beyond a reasonable doubt, the

jury must acquit him or her. Now, a reasonable doubt, as

is used in these instructions, means a doubt that is based

on reason and common sense. Such doubt must be sub-

stantial rather than speculative, that is a defendant is never

to be convicted on mere suspicion or conjecture. Such

doubt, however, must be a doubt that is reasonable and one

which arises from the evidence or lack of it. It does not

mean a mere possible doubt or a speculative, imaginary, or

forced doubt, because anything relating to human affairs

is open to some possible or imaginary doubt.” (A. 308-309)

(Emphasis supplied ).

Of course, it is well established that the defendant need not

“rely” on any evidence and to say that he may rely on evidence

brought out on cross-examination implies that there must be

some evidence (whether “produced” by the Government or de-

fendant) upon which defendant bases his case.

The misleading and prejudicial effect of these phrases is com-

pounded by the next paragraph of the instruction wherein the

Trial Court states that a reasonable doubt “must be substantial

rather than speculative.” (Emphasis supplied ).

—

In United States v. Atkins, 487 F.2d 257 (8 Cir. 1973), the

Court rejected the equating of reasonable doubt with substantial

doubt stating:

“The objection made on this appeal is that substantial

doubt is not the equivalent of reasonable doubt. We agree.

Proof of guilt beyond a reasonable doubt would seem to

require a greater evidentiary showing by the government

than proof of guilt beyond a substantial doubt. For this

reason, we do not approve of the alternative statement that

reasonable doubt means a substantial doubt.”

The Court of Appeals in Atkins found particularly persuasive

the reasoning of Judge Seiler of the Missouri Supreme Court

when he observed in State v. Davis, 482 S.W. 2d 486 (Mo.

1972) at p. 490:

“Reasonable and substantial are not synonymous, as can

be seen by referring to any of the Standard dictionaries.

The point was well put by counsel in argument recently

where he pointed out that if one had to undergo a serious

operation and were querying the doctor as to the prospects

for a successful outcome, how differently the person would

feel if the doctor told him there was only a reasonable

chance of success as opposed to being there was a sub-

stantial chance of success.”

Similar reasoning is found in United States v. Alvero, 470 F.

2d 981 (5 Cir. 1972) where the appellate Court held that the

phrase “very substantial doubt” overstated the degree of un-

certainty required for reasonable doubt and constituted re-

versible error.

In the instant case the Court of Appeals expressed dissatis-

faction with the trial court’s instruction noting that it “is con-

fusing in that arguably it raises the burden from ‘reasonable

doubt’ to ‘substantial doubt’ and would better be left unsaid.”

However, the Court declined to reverse on this point.

— APTI PRT TINY OMA LAE REED RT IN YEE 8

a | om

In view of the apparent confusion and conflict of decisions

on this issue it is submitted that standards for an instruction

on reasonable doubt should be set by this Court.

CONCLUSION

For the foregoing reasons a Writ of Certiorari should issue

to review the judgment and opinion of the Court of Appeals.

Respectfully submitted

LONDON & GREENBERG

418 Olive—Suite 404

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

LEIA AT LEE NN

APPENDIX

“So

UNITED STATES v

UNITED STATES of America,

Plaintiff-Appellee,

v.

Kathleen Maude MUCKENSTRUM,

a/k/a Kim Baker, Glenda Dale Hodg-

es a/k/a Cindy Baker, James Marshall

Reed and Jean Hertzka, a/k/a Pat

Walker, Defendants-Appellants.

No. 74-3550.

United States Court of Appeals,

Fifth Circuit.

July 3, 1975.

Defendants were convicted in the

United States District Court for the

Southern District of Florida at Miami,

Peter T. Fay, J., for conspiracy to en-

gage in- interstate prostitution activities,

and certain defendants were convicted of

substantive offenses, and they appealed.

The Court of Appeals, Bell, Circuit

Judge, held that Government’s failure to

disclose that government witness re-

ceived subsistence payments prior to tes-

tifying, if error, was harmless in light of

the overwhelming evidence adduced at

trial against defendants; that trial judge

did not err in denying motion for new

trial based on government witness’

recantation of her trial testimony; that

FBI report of interview with govern-

ment witness who was not quoted direct-

ly and who had not seen the report prior

to posttrial hearing was not Jencks Act

material; and that instruction concern-

ing reasonable doubt did not equate rea-

sonable doubt with substantial doubt, al-

though sentence in instruction that

doubt must be substantial rather than

speculative would better be left unsaid.

Affirmed.

POOR CCPY

. MUCKENSTRUM

6237

1. Criminal Law @1171.1(1)

Government's failure to disclose that

government witness had received ap-

proximately $1,000 in subsistence pay-

ments prior to trial, if error, was harm-

less in view of overwhelming evidence

against defendants. Organized Crime

Control Act of 1970, §§ 501-504, 84 Stat.

933.

2. Criminal Law =942(2)

Denial of motion for new trial based

on government witness’ repudiation of

her grand jury and trial testimony was

not error in view of overwhelming credi-

ble evidence against defendants and the

suspect nature of the witness’ recanta-

tion.

3. Criminal Law @938(4)

Testimony of Government's witness

at posttrial hearing on motion for new

trial as to threats and promises of leni-

ency did not require new trial in view of

testimony of federal agents that no

threats or promises had been made to

the witness.

4. Criminal Law @627.6(5)

FBI report of interview with

government witness who was not quoted

directly in the report and who had not

seen the report prior to posttrial motion

was not Jencks Act material. 18 U.S.

C.A. § 3500.

5. Criminal Law @=822(1)

Instruction claimed to be erroneous

would be viewed in context of the whole

charge.

6. Criminal Law @789(7)

Instruction concerning reasonable

doubt was not erroneous on theory that

it equated reasonable doubt with sub-

stantial doubt, although sentence in-

structing that doubt must be substantial

rather than speculative would better be

left unsaid.

ey. Yon

7. Criminal Law @778(5)

Instruction that defendant is not re-

quired to produce any evidence and may

rely upon evidence brought out on exam-

ination of witnesses for the Government

did not shift burden of proof to defend-

ants.

8. Criminal Law @=393(1)

Notebook discovered incident to de-

fendant’s lawful arrest and containing

the hand-entered telephone number of

codefendant was an instrumentality of

crime of conspiracy to engage in inter-

state prostitution activities and admis-

sion of the notebook into evidence did

not violate defendant’s right against

self-incrimination. 18 U.S.C.A. §§ 1952,

2422, 3500.

Appeals from the United States Dis-

trict Court, Southern District of Florida.

Before BELL, DYER and SIMPSON,

Circuit Judges.

BELL, Circuit Judge:

This appeal involves an_ interstate

prostitution operation between Florida

and South Carolina. Defendants Muck-

enstrum, Hodges, Reed, and Hertzka

were convicted on one count of conspir-

acy to engage in interstate prostitution

activities in violation of 18 U.S.C.A.

§ 1952, and on one count charging sub-

stantive violations of Section 1952 by us-

ing interstate facilities or traveling in

interstate commerce to carry on prostitu-

tion. Additionally, procurer Reed was

convicted on one count of inducing a

woman to engage in interstate prostitu-

tion activities in violation of 18 U.S.C.A.

§ 2422. We affirm.

1. At oral argument, government counsel (an

assistant U.S. attorney), who also had handled

the case at trial, stated that the existence of

the payments was not consciously withheld

from the defense as government counsel him-

ARAN ROR IS RIE NY

UNITED STATES v. MUCKENSTRUM

{1} Appellants’ first contention is

that a new trial is necessitated by the

failure of the government to disclose

that government witness Nevada Jean

Robertson a/k/a Nevada Smith received

subsistence payments prior to testifying.

At trial, defense counsel learned for the

first time that Robertson was and had

been under the protection of U.S. mar-

shalls, but no information was volun-

teered by the government or solicited by

the defense concerning subsistence pay-

ments to Robertson.' Subsequent to tri-

al, defense counsel discovered that Rob-

ertson had received approximately one

thousand dollars in subsistence payments

prior to trial.

No attack on the payments per se is

sustainable since subsistence payments to

government witnesses are authorized by

Pub.L. 91-452, Title V, §§ 501-504, Oct.

15, 1970, 84 Stat. 933. See United States

v. Howell, 5 Cir., 1975, 514 F.2d 710 (No.

74-2427, June 11, 1975). The gravamen

of appellants’ complaint is that defense

impeachment of witness Robertson was

severely hampered by the lack of knowl-

edge concerning the payments. Accord-

ing to appellants, Robertson’s testimony

formed a substantial portion of the case

against them, and the subsistence pay-

ments issue could have been used to dis-

credit that testimony.

Assuming arguendo that it was error

for the government to fail to disclose the

subsistence payments despite the infor-

mation not having been sought, we hold

that the failure of the government to do

so was harmless error in light of the

overwhelming evidence adduced at trial

self did not know of such payments. How-

ever, counsel conceded that the subsistence

payments were within the ambit of his con-

structive knowledge as assistant U.S. attorney.

ray, me

UNITED STATES v. MUCKENSTRUM

against appellants. See Harrington v.

California, 1969, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284. Besides Nevada

Jean Robertson, the government produc-

ed Erlene Edwards, who testified that

she was employed by Hertzka in operat-

ing a house of prostitution in Florence,

South Carolina. Her duties included an-

swering the door, getting the girls up in

the morning and the taking of their re-

ceipts during the day for them. She

identified defendants Hodges and Muck-

enstrum as being prostitutes at the

house.

Melanie Ann Gordon testified that she

travelled from Miami to Florence, South

Carolina along with defendants Muck-

enstrum and Hodges, while in the em-

ploy of and at the instance of defendant

Reed, to work as a prostitute at the

Hertzka house. She testified that Muck-

enstrum and Hodges were also employed

by Reed.

This direct testimony of witnesses was

buttressed by documentary evidence.

An FBI agent testified that a notebook

had been found in Hertzka’s possession

at the time of her arrest and that the

name “Jim” appeared in the book next

to a telephone number later shown to be

James Reed’s Miami telephone number.

Telephone records were introduced indi-

cating numerous calls between James

Reed’s number in Miami and Hertzka’s

in South Carolina (listed under the alias

Pat Walker).

Nevada Robertson testified that she

was employed by Reed, that he sent her

from Miami to the Hertzka house in

Florence, and that she worked in the

house as a prostitute. Thus her testimo-

ny was largely the same as that of wit-

nesses Edwards and Gordon.

{[2] Appellants next urge reversal and

a new trial based on Nevada Jean Rob-

ertson’s recantation of her trial testimo-

POOR cocPpy

6239

ny at a post-trial hearing based upon a

motion for new trial. Robertson did re-

pudiate her grand jury and trial testimo-

ny. The government countered by pro-

ducing witnesses impeaching Robertson's

recantation. We have closely examined

Robertson’s post-trial testimony and find

it untenable at best. Coupled with the

overwhelming credible evidence against

appellants and the extremely suspect na-

ture of Robertson’s recantation, the trial

judge did not err in denying the motion

for a new trial. See United States v.

Johnson, 5 Cir., 1974, 487 F.2d 1318,

1325.

(3] Appellants also urge that a new

trial should have resulted from the fail-

ure of the government to inform defense

counsel of alleged threats and promises

of leniency described by Robertson dur-

ing the post-trial hearing. Federal

agents testified at the hearing that no

threats or promises had been made to

Robertson. There is no merit whatever

in this contention.

[4] Appellants next contend that the

government withheld statements of

government witness Melanie Ann Gor-

don in violation of the Jencks Act (18

U.S.C.A. § 3500). Melanie Ann Gordon

testified for the government at this trial

and also in a subsequent trial giving rise

to the appeal in United States v. Prince,

5 Cir., 1975, —— F.2d ——, this day de-

cided. The government produced an

FBI report in the Prince trial of an in-

terview with Gordon. It was not pro-

duced in this trial and thus the claim of

a Jencks Act violation.

We have examined the FBI report in

issue and find it is not Jencks Act mate-

rial. As brought out at the post-trial

evidentiary hearing, the FBI report did

not quote Gordon directly, was not

signed by her, and had not been seen by

ne a ae eS

am at

i tebe

a

her prior to the post-trial hearing. See

United States v. Blackburn, 5 Cir., 1971,

446 F.2d 1089; United States v. Roberts,

5 Cir., 1972, 455 F.2d 930. The trial

judge did not err in refusing to grant

the motion for new trial based upon this

contention of appellants.

[5,6] Appellants attack the jury in-

structions concerning reasonable doubt

and the burden of proof. The alleged

erroneous portion of the reasonable

doubt charge is as follows:

Now, a reasonable doubt, as used in

these instructions, means a doubt that

is based on reason and common sense.

Such doubt must be substantial rather

than speculative, that is, a defendant

is never to be convicted on mere suspi-

cion or conjecture. Such doubt, how-

ever, must be a doubt that is reasona-

ble and one which arises from the evi-

dence or lack of it.

It does not mean a mere possible

doubt or a speculative, imaginary or

forced doubt, because everything relat-

ing to human affairs is open to some

possible or imaginary doubt.

Appellants argue that this portion of the

charge equates reasonable doubt with

substantial doubt. We must view this

instruction in the context of the whole

charge. See Baker v. United States, 5

Cir., 1969, 412 F.2d 1069. Having done

so, we disagree with appellants. We

hasten to add, however, that the sen-

confusing in that arguably it raises the

burden from “reasonable doubt” to “sub-

stantial doubt” and would better be left

UNITED STATES v. MUCKENSTRUM

(7) Appellants next contend that the

burden of proof instruction used by the

trial court impermissibly shifted the bur-

den of proof to them. The portion of

the charge highlighted by appellant is as

follows:

The law does not require a defend-

ant to prove his innocence or to pro-

duce any evidence. He may rely upon

evidence brought out on examination

of witnesses for the Government.

The court instructed the jury that the

defendant is presumed innocent until

proven guilty and on more than one oc-

casion instructed that the burden of

proving a defendant guilty beyond a rea-

sonable doubt rests on the government.

We find no error?

(8) Appellant Hertzka contends that

the admission into evidence of the note-

book containing the hand-entered tele-

phone number of defendant Reed, dis-

covered incident to her lawful arrest, vi-

olated her Fifth Amendment right

against self-incrimination. There was no

error in admitting this instrumentality

of the crime. See United States v. Ben-

nett, 2 Cir., 1969, 409 F.2d 888, 896-96;

United States v. Hanon, 8 Cir., (en banc),

1970, 428 F.2d 101, 106-107, In Roma-

nelli v. C, I. R., 7 Cir., 1972, 466 F.2d 872,

877 n.9, the Seventh Circuit pointed out

the inapplicability of Hill v. Philpott, 7

Cir, 1971, 445 F.2d 144, relied on by

appellants, where instrumentalities of

the crime are involved (gambling para-

phernalia).

We have examined the remaining ar-

guments of appellants and find them to

be without merit.

Affirmed.

ment.” adds little to the charge and serves no

purpose unless a defendant seeks such an in-

struction. It may, after all, be in the interest

of the defendant rather than the contrary as is

argued here.