Reply Brief — Marzani v. United States

CITATIONS

Cases: Page

Braverman v United States, 317 U. S. 49 (1942)... 12

Dwyer v United States, 170 Fed. 160, 166, C.C.A. 9 (1909) 12

ones v United States, 165 F. 2d 360,

rtiorari denied, March 29, 1948. 2

a wens v United States, 328 U. S. 640, 641-642... 12

United States v Gilliland, 312 U. S. 86, 91 (1940). 4

United States v Krulewich, 145 F. 24 76 C.C.A. 2 (1944) 9

United States v Nash, 229 U. S. 373, 379-880 (1912)... 9

United States v Spivey, 109 F. 2d 181 C.C.A. 5 (1940)

certiorari denied, 310 U. S. 631 5

United States v Zavala, 139 F. 2d 830 C.C.A. 2 (1944)... 4

Statutes:

Suspension Act (18 U. S. C. Supp . V, Sec. 590 (a)... 2

Contract Settlement Act, Secs. 19 (c)(1), 19 (d), 58

Stat. 649

Criminal Code Sec. 25A (18 U.S.C. 80) 2, 3, 5

White Slave Traffic Act (18 U.S.C. Secs. 398-399)... 9-10

Miscellaneous:

Federal Rules of Criminal Procedure, Rule 35.0000.

Rule XII, Civil Service Commission

Departmental Circular 222, Civil Service Commission... 6

IN THE

Supreme Court of the United States

Octoser TERM, 1947

Cari ALpo MARZANI

Petitioner,

ed No. 816

UNITED STATES OF AMERICA

On PETITION FOR A WRIT oF CERTIORARI TO THE

UNITED STATES Court oF APPEALS FOR THE

District or CoLUMBIA

REPLY BRIEF FOR THE PETITIONER

Pursuant to Paragraph 4(a) of Rule 28 of the Revised

Rules of this Court, petitioner submits this Reply Brief

in reply to the Brief in Opposition for the United States:

1. In its Brief, the Government does not deny that the

questions raised by petitioner are of general importance in

the loyalty program, in the administration of criminal jus-

tice in the federal courts, and in connection with the super-

vision of this Court over the Courts of the District of

Columbia. Its sole ground for opposition is that on the

facts and rulings in this particular case, petitioner’s conten-

tions present no question of merit which requires this

Court’s examination (Gov’t. Br. p. 29), and therefore, pre-

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sumably, the questions of general importance raised by

petitioner are not reached.’ Under these circumstances,

this reply brief is primarily limited to meeting the govern-

ment’s contentions on the merits of this case.

In its anxiety to avoid a review of this case, the government

seeks to minimize a genuine conflict between the decision of

the court below and the decision of the Court of Appeals for the

Second Circuit in Gottfried v. United States, 165 F. 2d 360,

367-368, cert. denied March 29, 1948, with respect to the con-

struction to be given to the Suspension Act. U. S. C. Title 18

Supp. V, 590 (a) (1) suspending the running of the statute of

limitations applicable to certain offenses (Gov't. Br. p. 18).

The court below decided this issue, correctly, we submit, in our

favor, and we rest on that decision, predicating our claim of pre-

judicial error, in part, on the error found by the court below in

the pertinent rulings and charge of the trial court.

The primary ground for the government’s assertion that the

decision in the Gottfried case is correct and that of the court

below erroneous, with respect to the conflict, is that the legis-

lative history of the suspension statute indicates a specific intent

to have that statute apply to offenses under Section 35A of the

Criminal Code, the provision here involved (Gov't Br. p. 18).

The legislative history of the Suspension Act and its applica-

tion to Section 35A was exhaustively briefed by both sides in

the court below (Br. for Appellant 9-38; Br. for Appellee 8-30;

Reply Br. for Appellant 1-9). The only reference to Section 35A

ot the Criminal Code in this connection appears in Section 19(d)

of the Contract Settlement Act 58 Stat. 649 which provides that

“the provisions of Section 35A .. . shall apply to any statement,

representation, bill, receipt, voucher, roll, account, claim cer-

tificate, affidavit or deposition made or used or caused to be made

or used for any purpose under this Act or any regulations pur-

suant to this Act (italics supplied).

Section 19 (c) (1) of the Contract Settlement Act provides, in

language similar to that of Section 35A, that “every person

who makes or presents to any officer, agent or employee of any

government agency any claim, bill, receipt, voucher, statement,

account, certificate, affidavit or deposition knowing the same

to be false, fraudulent or fictitious . . . for the purpose of securing

or obtaining . . . any benefit, payment, compensation, allowance,

loan, advance or emolument from the United States . . . in con-

ELEED THROUGH — POOR COPY

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2. In answering petitioner’s first contention that his

conviction under Counts 10 and 11 of the indictment is con-

stitutionally invalid, the government sets up a row of straw

men, which it proceeds to demolish, without ever having

faced the real adversary and coming to grips with it. The

t states “Petitioner’s first contention (Pet. 16-

23) is that Counts 10 and 11 do not charge violations of

Section 35A of the Criminal Code because the false state-

ments in question were made informally and were not made

under oath and were not stenographically transcribed. . . .

Petitioner’s argument is that his deception is not punishable

because he was not first sworn and because there is no

stenographic transcript of the conference.” (Gov’t’s Br.

19,21). This statement of our position is erroneous and

misleading. Petitioner’s contention does not go merely to

the sufficiency of the indictment, nor is it limited to the

specific grounds stated by the government. Our position

is that the statute itself cannot be constitutionally applied

to make criminal false statements uttered under all the cir-

cumstances shown in the trial of Counts X and XI, because,

as those circumstances show, petitioner was denied the pro-

cedural safeguards which would have defined the crime,

enjoined the obligation, and provided suitable notice of

criminal consequences, which this Court held in United

nection with the termination, cancellation, settlement, payment,

negotiation, renegotiation, performance, procurement, or award

of a contract with the United States . . .” shall be subject to

specified civil liabilities, based in part on the pecuniary loss sought

to be imposed on the United States.

In the case at bar, the trial court correctly = the jury

that “pecuniary or monetary loss is not an element of the offense,

so that the government is not required to prove that the govern-

ment suffered a pecuniary loss in connection with the offense

here charged” (R. 41).

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States v. Gilliland, 312 U. S. 86, 91 (1940) are required to

save the statute from the objection of unconstitutional in-

definiteness. Petitioner’s claim as to the invalidity of the

conviction under Counts 10 and 11 rests, therefore, not

merely on the ground that the statements were informal,

unsworn, and not recorded, but on the whole congeries of

these and other factors, noted in our Petition pp. 9-10,

18-20, which conclusively demonstrate, we submit, that the

statute as applied did not, as constitutionally required, ade-

quately and under definitely ascertainable standards of guilt,

inform petitioner that his statements, if false, would be

criminal.

The Zavala’ case, which the government cites (Gov't.

Br., p. 21) to demolish the straw man of an oral and un-

recorded statement, makes petitioner’s contention even

clearer. In that case, defendant presented to a customs in-

spector a written baggage declaration in which he omitted

to state that he was bringing in any currency. Having

been given an opportunity to amend his declaration, he

caused it to be amended by authorizing the customs in-

spector to add a false statement to the declaration. In the

course of the examination of defendant and his baggage,

one of the government agents said to him “There is a law

which has been enacted, a Presidential proclamation of

April 6, 1940 which prohibits the bringing in of currency

into the United States of any denomination, either this

country or foreign, without first declaring it, so that it can

be run through the Federal Reserve Channels to be checked.

If you do not declare your currency, all of it, you will be

prosecuted, according to the violations and the penalties

*United States v. Zavala, 139 F. 2d 830, 831 C. C. A. 2

(1944).

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set forth in this Presidential proclamation” (139 F. 2d 829-

830). The matter was one within the jurisdiction of the

United States, the court held, by virtue of General Ruling

6A, Executive Order 8389, and the Trading with the

Enemy Act, which covered the importation of currency

into the United States (id. 832).

In the case at bar, there was nothing comparable in the

circumstances of the Panuch interview, either in regulations

or the equivalent offered which suitably informed petitioner

of the matter within the jurisdiction of the United States

or the criminal consequences involved.

Similarly, the statute as applied in the S pivey case*,

cited by the Government (Gov’t. Br. Mimeo., p. 21, ftn. 10)

punished false and forged statements made on Commodity

Credit Corporation cotton producers’ notes on which de-

fendant secured credit through private banks, which as-

signed the notes, believing them genuine, to the Commodity

Credit Corporation. There, the false statements were made

to defraud an agency of the United States of money and,

as the facts indicate, the applicability of the statute to bring

home to defendant the particular matter within the juris-

diction of the United States and the criminal consequences

involved was never seriously in question (109 F. 2d 183,

184-185).

The government is in error, therefore, in contending

that “each of the elements of the offense as described by

Section 35A is indisputably present in the case at bar.”

(Govt’s Brief pp. 20-21). The undisputed and conceded

facts as to the private, informal and unregulated nature of

the interview with Panuch disclosed a situation which nega-

United States v. Spivey, 109 F. 2d 181, C. C. A. 5 (1940)

cert. denied 310 U. S. 631.

6

tived the formality of the charge in the indictment, failed

to put petitioner on notice that the interview had risen to

the dignity of a matter within the jurisdiction of the United

States, and provided no basis for the jury, on the issue of

knowledge and wilfulness, to pass on the constitutional issue

involved which had been ruled on by the trial court and

withdrawn from the jury (R. 22, 25, 40).

The second ground on which the government seeks to

uphold the decision of the court below is that, in applying

the statute to the facts of this case, it has not sought to prose-

cute for false statements made by one government employee

to another in a casual conversation, where the urgent neces-

sity of truthfulness might not have been plain (Gov't. Br.

p. 20). The government admits, however, that the inter-

view was not in conformity with any regulations which

provide for the hearing of charges against employees, (id.

p. 22 ftn. 11) ; that petitioner did not seek a formal hearing

(id. p. 22) but sought and obtained a private conference

(id. p. 22 ftn. 11) with Panuch, with whom he had “a good

personal relationship” (id. p. 23) and that his statements

were unsworn, unwitnessed and unrecorded (id. p. 21).

The government does not deny that the only two partici-

pants addressed each other as “Carl” and “Joe” throughout

the conference; that Panuch was not merely Deputy Assist-

ant Secretary in charge of Administration but also peti-

tioner’s superior in channels (R. 176); that the interview

was at petitioner’s request and not required; that the con-

ference was not a removal proceeding but a discussion about

a request for a voluntary resignation; that the requirements

of Civil Service Rule XII and Departmental Circular 222,

if applicable, were not complied with or their equivalent

offered; that petitioner’s statements were voluntary and

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made under no obligation which had been enjoined; that

Panuch was without knowledge of the previous interroga-

tions on the same subject matter by the F. B. I. and the Com-

mission; that the conference ranged over a wide variety of

topics and lacked all the indicia of a hearing on a matter

within the jurisdiction of the United States as provided

by the Regulations of the Loyalty Review Board of the

Hearing Procedures of the State Department (Pet. 9-10,

17-20). Nothing in the interview compared with the cir-

cumstances surrounding the false statements in the Zavala,

Spivey (supra) or other cases cited by petitioner, in which

the statute has been upheld (Pet. 22 ftn. 21).

The government rests its contention that the conference

was not a casual one on the ground that Panuch, who had

authorized the request for petitioner’s resignation, regarded

the matter seriously and testified that “the conference was

in the nature of an appeal, the man was appearing before

me as Deputy Assistant Secretary and he was entitled to

have his day in court” (Gov't. Br. p. 23).

Panuch is an attorney (R. 58). Petitioner is not.

Aside from the fact that Panuch’s characterization of the

interview was not communicated to petitioner at the time,

but was reserved for testimony at the trial, it is apparent

that Panuch did not regard the matter seriously enough to

find out about or have before him a record of the prior pro-

ceedings, which, presumably, constituted the basis of the

“appeal”; to advise petitioner of the charges in advance,

although a month elapsed between the request for the

resignation and the interview, the date and place of which

was fixed by Panuch (R. 48) ; to have other State Depart-

ment officials or even a stenographer present ; to advise peti-

tioner of his rights ; to conduct the interview with formality ;

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to reduce the interview to writing; or otherwise to afford

petitioner what a lawyer would normally regard as the

requirements of “a day in court”, if he was serious about

the matter. That petitioner was “capable” of knowing

that Panuch’s inquiries related to a matter within the juris-

diction of the Department (Gov't. Br. p. 24) is no substitute

for the fact that petitioner was not, as was his right, actu-

ally and adequately informed that his statements, if false,

were on a matter within the jurisdiction of the United States

punishable under the statute.

The government apparently construes the statute as if

it exempted false statements made in casual conversation

but punished such statements if made in serious conver-

sation. The court below construes the statute to apply to

any false statements, casual or serious, but holds that the

statute meets the test of constitutional definiteness because

the discussion in this case was “official”. There is nothing

in the statute, we submit, which warrants these distinctions.

The holding of the Gilliland and the other cases cited

by petitioner (Pet. 22, ftn. 21) requires that false state-

ments to be punishable, must be made in a particular matter

within the jurisdiction of the United States, and that matter

must be brought home to petitioner under regulations or

their equivalent which provide suitable notice of the criminal

consequences involved, under definitely ascertainable stand-

ards of guilt. By equating “serious” or “official” to the

language of the statute, the government and the court below

have given the statute a novel and unwarranted construc-

tion which requires decision by this Court.

3. The government’s answer to the petitioner’s second

contention (Pet. 23-33) is limited to a partial and, we sub-

mit, insubstantial justification of the decision of the court

below.

A. The government does not deny that the nine barred

counts contained prejudicial and inflammatory matter which

would not have been submitted to the jury, had the trial

court ruled correctly with respect to the statute of limita-

tions. The government does not recede from its previous

position that some of these matters had been abandoned, or

deny that the trial court failed to instruct the jury as to the

fact of such abandonment, or question the applicability of

the holding in the Nash case* ( Pet. 23-25).

B. Nor does the government deny that certain of the

evidence admitted under the barred counts constituted

proof of other separate crimes under other Federal and

State laws or was of such a nature as to be as prejudicial

in its effect upon the jury as proof of other crimes (Pet.

10-11, 25-28). Its sole support for the ruling of the court

below on this issue is that such evidence was relevant to

membership in the Communist Party, was not received only

in respect of any of the first nine counts, and, was therefore

admissible to prove the crime charged in Count 10 even

though it proved other crimes as well (Gov't. Br. p. 25,

ftn. 12).

The government cites the Krulewitch’ case as its au-

thority. But that case involved a prosecution for trans-

porting a woman in interstate commerce, for the purpose of

prostitution, under the White Slave Traffic Act (Cr. Code

37, 18 U. S. C. A. Sec. 88, 398-399) where purpose and

‘United States v. Nash, 229 U. S. 373, 379-380 (1912).

SUnited States v. Krulewitch, 145 F. 2d 76 C. C. A. 2 (1944).

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intent were essential elements of the crime. And, even in

that case, under that statute, the court held that the admis.

sion of evidence of the separate crime of rape constituted

prejudicial and reversible error, (145 F. 2d 80) even though

the trial court carefully instructed the jury as to the use to

which it might put such evidence (id. 81).

In the case at bar, two pertinent facts stand undenied:

first, that purpose or intent is not an element of the statute

here involved; and second, that the record is barren of any

evidence of prohibited advocacy by the Communist Party,

constituting proof of other separate crimes (Pet. 26-27),

Consequently, evidence that petitioner engaged in such pro-

hibited advocacy is not relevant to prove that he was a

member of the Communist Party; such evidence of other

crimes is not admissible on any issue of intent; and, in any

event, the trial court failed to instruct the jury to consider

such evidence only on the issue of intent. The evidence was

admitted under specific allegations of the indictment which

the court below held were not validly included in the trial.

If relevant at all, such evidence was relevant only to such

counts, and not to prove other irrelevant crimes. The

dictum of the Krulewitch case is not applicable. The govern-

ment, we submit, has failed to meet petitioner’s contention

that the admission of this evidence of other separate crimes,

under these circumstances, constitutes prejudicial error.

C. As to petitioner’s contention that the admission in

evidence of his nine statements to the F. B. I. and the Com-

mission under the nine barred counts was prejudicial in the

trial of the last two counts (Pet. 11-12-28-31) the gov-

ernment’s answer is that assuming, arguendo, that such

evidence would not have been admissible under the last two

counts, the evidence was not hurtful to petitioner, but on

ercoen Two CHIC ee CDOOR CORY

il

the contrary beneficial and that “It is difficult to under-

stand how evidence of such denials could possibly prejudice

petitioner, unless and until the jury found that petitioner

had been a member of the Communist Party and had used

an alias. Once these findings were made, the jury could

not very well have escaped a finding of guilt as to Counts

10. and 11” (Gov't. Br. p. 26).

This formulation of the problem presents, but does not

justify the prejudicial error. For, once the jury had con-

cluded that petitioner had lied in formal, sworn statements

that he was not a member of the Communist Party and had

not used an alias, under the first nine counts, which were

not validly on trial, it is, indeed, probable that for that very

reason it could not have escaped a finding that petitioner

knowingly, wilfully and criminally lied about the same

subject matter in his informal and unsworn statements

under the last two counts.

The government’s argument assumes either that ad-

vantages only accrued to petitioner from his nine earlier

statements or that the jury weighed only his last two state-

ments against the proof of his activities in 1940-1941, with-

out reference to the fact that it had already found him

guilty of nine separate crimes in the making of his nine

earlier statements. These assumptions do violence to the

reality by abstracting the last two counts from the total

setting of the trial. The nine earlier sworn formal and

documented statements were considered by the jury and

must necessarily have had a prejudicial effect on the issue

of petitioner’s knowledge and wilfulness in the making of

the unsworn, informal and unrecorded statements in the

last two counts. Since the nine earlier statements were

charged as, and constituted proof of nine separate crimes,

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of which the jury found petitioner separately guilty, and

proof of crimes is hardly beneficial to a defendant, it ig

sophistry to claim that only advantages accrued to petitioner

from such evidence.

D. As to petitioner’s contention that he was errone-

ously sentenced (Pet. 31-32), the government answers with

Pinkerton v. United States, 328 U.S. 640, 641-642, which

it asserts forecloses the argument (Gov’t. Br. p. 27). But,

in that case, the reported proceedings do not show that the

question was raised in the court below or that the presump-

tion of law—that the court awarded sentence on the good

count only—was rebutted, as it was here, by the presence

in the record of the ruling by the trial court that each of

the eleven counts on which it imposed its general sentence

constituted a separate, valid crime and by exceptions taken

to erroneous instructions on the first nine counts in peti-

tioner’s motion for judgment of acquittal and new trial

(R. 31, 46). The government’s suggestion that peti-

tioner’s remedy is provided by Rule 35 of the Federal Rules

of Criminal Procedure is beside the point. If the general

sentence on eleven counts was error, this Court may correct

the error. Cf. Braverman v. U. S., 317 U.S. 49 (1942).

Dwyer v. United States, 170 Fed. 160, 166, C. C. A. A.

(1909). Rule 35 is addressed to the discretion of the trial

court and does not foreclose the assertion of a right.

4. The government’s answer (Gov't. Br. pp. 27-28) to

petitioner’s final contention that the trial court failed to

treat the predominantly Negro jury in the case as a repre-

sentative jury is a mere restatement of the opinion of the

court below which fails entirely to answer the specific errors

asserted as to that opinion by petitioner ( Pet. 12-16, 33-35).

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nder the ordinary rules of evidence, they cannot be justi

Ged by the supposed inability of the predominantly Negro

jury to consider the evidence on the same terms a8 any

other representative jury. The question presented, there-

fore, is both a constitutional question and one which war-

rants the exercise by this Court of its supervisory powers

over the Courts of the District of Columbia.

Respectfully submitted,

Osmonp K. FRAENKEL,

120 Broadway,

New York, N. Y.

ALLAN R. ROSENBERG,

934 Bowen Bldg.,

Washington 5, D. C.

Attorneys for Petitioner.