# Reply Brief — Marzani v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1948
- **Citation:** 335 U.S. 895

## Text

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

3

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0300%3A03. Public record. Not legal advice.