Brief for the United State in Opposition — Pierce v. United States

No, R6ed 2

Inthe Supreme Court of the United States

OcToBer TERM, 1940

J. KE. Prerce, PETITIONER

P.

i NITep STATES oF AMERICA

- ON PETITION PAR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCLIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

INDEX

Opinion below. ------------- uccnbwedectcudesaateeee

NE — resesacewontne

Questions presented... , jabs oeues

Statute involved. _..-.---- mepee Sdeowne cute

Statement. - ane aah Siew inctuvsawiann

Argument...-..----- ; jpaeneeasaban

SEND... cccccczesees Ls ee euunwelenstieesesequeseues

CITATIONS

Criminal Code, Sec. 32 (U. 8. C., Title 18, Sec, 76)....------

(1)

804030— 41———1

w

Inthe Supreme Gourt of the Bnited States

OcToBER TERM, 1940

No. 833

J. E. Pierce, PETITIONER

v.

Tue Unttrep STATES oF AMERICA

—-

ON P£TITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Circuit Court of Appeals

(R. 347-351) is reported in 115 F. (2d) 399.’

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered November 15, 1940 (R. 345-346), and

a petition for rehearing (R. 353) was denied Feb-

‘The opinions of the District Court and of the Circuit

Court of Appeals in connection with petitioner's first trial

are reported in 13 F. Supp. 301 and 86 F. (2d) 949, respec-

tiveiy.

(i)

2

ruar,” 4, 1941 (R. 355). The petition for a writ of

certiorari was filed March 11, 1941. The jurisdic-

tion of this Court is invoked under Section 240 (a)

of the Judicial Code, as emended by the Act of

February 13, 1925. See also Rule XI of the

Criminal Appeals Rules, promulgated by this

Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether petitioner’s motion for a directed

verdict was properly overruled.

2. Whether the trial court erred in refusing to

give a_ instruction requested by the petitioner.’

STATUTE INVOLVED

Section 32 of the Criminal Code, as in force at

the time of the offenses charged in the indictment

(U.S. C., Title 18, See. 76), provided:

Whoever, with intent to defraud either

the United States or any person, shall

falsely assume or pretend to be an officer or

employee acting under ‘| e authurity of the

United States, or any aepartment or any

officer of the Governinent thereof, and shall

take upon himself to act as such, or shall in

such pretended character demand or obtain

from any person or from the United States,

or any ‘epartment or any officer of the Gov-

ernment thereof, any money, paper, docu-

* Petitioner also presents but reserves for argument if

certiorari is granted the question whether the indictment

was suffigent. On this point, see the opinion of the Circuit

Court of Appeals on peticioner’s appeal from his first con-

viction, 86 F. (2d) at p. 941.

3

ment, or other valuable thing, shall be fined

not more than $1,000 or imprisoned not more

than three years, or both.’

STATEMENT

Petitioner and another were indicted in 1935 in

the District Court for the Western District of Ten-

nessee on ‘twenty-one counts, twenty of which

charged violations of Section 32 of the Criminal

Code and one of which charged conspiracy. They

were convicted on seventeen of the substantive

counts. On appeal! to the Circuit Court of Appeals

for the Sixth Cireuit the judgment of conviction

was reversed because of prejudicial misconduct of

the prosecutor. Pierce v. United States, 86 F.

(2d) 949. At the second trial petitioner’s co-

defendant was acquitted and the jury was unable

to agree on a verdict as to petitioner (see R. 347).

At the third trial, the one here involved, the peti-

tioner was convicted on fifteen counts of the indict-

ment (R. 12-13). Counts 2, 4, 9, 11, 14, 16, 18, and

20 charged that on various dates between May 21,

1935, and June 11, 1935, the petitioner, with in-

tent te defraud eight named individuals, falsely as-

* Section 32 was subsequently amended by the Act of

February 28, 1938, c. 37, 52 Stat. $2, which edded, after the

first italicized word “thereof,” the phrase “or under the au-

thority of any corporation owned or controlled by the United

States,” and after the second italicized word “thereof,” the

phrase “or any corporation owned or controlled by the United

States.” U.S.C., Supp. V, Title 18, Sec. 76.

4

sumed and pretended to be an officer of the United

States, to wit, a representative of the Government

selling TVA‘ units, and did act as such. Counts

5, 10, 12, 15, 17, 19, and 21 charged that the peti-

tioner, while acting in such pretended character,

obtained from seven of the individuals nanied sums

ranging from $10 to $25 (R. 1-11).

Petitioner was sentenced on the fifteen counts

as follows: Three years’ imprisonment on Counts

2, 4, 5, 9, and 10, to run concurrently; three years’

imprisonment on Counts 11, 12, 14, 15, and 16, to

run concurrently with each other, but consecutively

to the three-year-period on Counts 2, 4, 5, 9, and

10; two vears’ imprisonment on Counts 17, 18, 19,

20, and 21, to run concurrently with each other, but

consecutively to the three-year-period on Counts

11, 12, 14, 15, and 16 (making a total of eight years’

mprisonment); and to pay a fine of $250 on

each of the fifteen counts (R. 13-14). On appeal,

the Circuit Court of Appeals for the Sixth Circuit

unanimously affirmed the judgment of conviction

(R. 345-351).

The Government’s evidence, which consisted

principaily of the testimony of persons who were

solicited by the petitioner, may be summarized in

broad outline as follows:

In May, 1935, petitioner contacted one Reau

Graves, a garage man in Gibson County, in western

‘Tennessee, and asked him to recommend someone

* The initials “TVA” will be used throughout this brief

to refer to the Tennessee Valley Authority.

-

0

who was well acquainted in the community and

knew everybody. When Graves offered his own

services, petitioner hired him to act as a guide,

stating that he (petitioner) was working for the

Government in the interest of the TVA and de-

sired to call on the better class of farmers. Graves

accompanied petitioner for two days, calling on

about a dozen persons a day and answering peti-

tioner’s questions about each prospect before the

call (R. 37-40).

Most of the Government witnesses testified that

netitioner would greet them cordially, compliment-

ing them on their farms or residences (R. 24-25,

38, 43, 66, 73, 108, 116, 120), and then inform them

that he was representing the Federal government

selling TVA “Units” at $10 each, the purpose be-

ing to raise money in the various counties in order

ti bring power lines into their territory, thereby

r sulting in cheaper electric poWer for those coun-

ties. The money was to be raised by subscriptions

of citizens for these TVA ‘‘Units’’, and petitioner

stated that each subscription would be matched

‘*dollar for dollar’’ by the Government (R. 24-25,

43-44, 52, 59, 66, 73-74, 54, 91-92, 101-102, 107-109,

116, 120-121, 131-132). Most of the witnesses tes-

tified that petitioner told them he was representing

the Government in the interests of the TVA, selling

“Units” (R. 32433, 43, 47-48, 73, 91, 101, 108, 113,

116, 118, 1381), while some stated that he informed

them he was representing the TVA (R. 59, 72, 84,

123, 127). However, it is apparent from their

6

testimony that all of the witnesses were led to be-

lieve that petitioner was a bona fide Government

official authorized to sell ‘‘stock’’ of that agency.

Most of the persons approached, because of their

proximity to TVA operations, were intezested in |

TVA and the extension to their community, |

through it, of the benefits of cheap power (R. 25,

43-44, 47, 52, 66, 78, 84, 108, 120), and were there-

fore easily persuaded to purchase one or more

“Units” at $10 each (R. 24-26, 44, 52, 69, 65, 74, 84,

92, 102, 109, 121, 132). There was testimony that

some of those solicited were told that they could

not delay in making their payments because peti-

tioner had to send the money and a daily report to

Washington every night (R. 25, 61, 132).

Several witnesses said that petitioner told them

he was well acquainted with President Roosevelt

and had gone to school and grown up with him

(R. 27, 31, 74, 110, 117, 131). Petitioner had with

him a letter of introduction signed by the president

of the Huntsville, Alabama, Daily Register (R.

35-36), a newspaper of which petitioner was vice

president and editor (R. 35, 135). One witness

testified that petitioner handed him this ietter and

stated that it was a credential identifying him as a

Government representative (R. 81-83) ; while two

witnesses testified that petitioner, without showing

it to them, read excerpts from the letter and stated

or intimated that it was a letter of introduction

signed by President Roosevelt (R. 34-45, 131-133).

+

While some of the purchasers paid cash for

‘‘Units’’ which they bought from petitioner (R. 38,

44, 60, 84), the majority paid by check. Petitioner

had blank checks of various local banks (R. 38)

and the procedure obtaining in practically all cases

was that when a prospect agreed to buy, petitioner

would produce a check of the proper bank, fill it in,

and the purchaser, who was either busy at the time

or trusted in his belief that the petitioner was a

Government official, would sign it without noticing

to whom it was made payable (R. 52-53, 66-68,

74-75, 92-93, 98-99, 100-103, 109, 121, 129, 132).°

While the checks in those cases bore on their face

the words ** For advertising”’ in petitioner’s hand-

writing, three of the witnesses stated positively that

those werds were not on the checks when they

signed them (R. 67, 92-93, 122). The purchasers

were also given receipts Which were usually folded

when handed to them by petitioner and which were

not read by the purchasers until later (R. 45, 53, 60,

68, 73, 75, 84, 93, 102, 109, 122, 132). When the

receipts were finally read by the purchasers, after

the petitioner had left, they saw that such receipts

bore the name of the Daily Register and realized

that what they had actually purchased was adver-

tising space in that newspaper (R. 54, 60-61, 68,

73, 75-76, 93, 96, 102-104, 122, 129-130) ; and some

of the witnesses thereupon stopped or attempted

* While the record does not shew the payees of all! the

checks, in each instance where the payee is identified such

payee was the Huntsville Daily Register (R. 37, 73, 98, 103).

3040380—41 —-—2

S

to stop payment of their checks (R. 68, 103, 129-

130).

There was also testimony that, during the sales

transactions, petitioner had in his possession copies

of the Daily Register and other documents which

he and his co-defendant displayed and handled in

such a manner that the purchasers thought that

they dealt with the TVA or that the Register was

. TVA publication (R. 40, 56-57, 59, 67-68, 101,

vo 110, 113-115, 125-126). Most of the witnesses

received a few copies of the — after making

their purchases (R. 52, 54, 61, 68, 76, 85-86, 94,

122).

None of the witnesses, prior to their payments,

understood that they were subseribing to or buying

advertising space in a privately owned newspaper

(R. 33, 48, 52, 61, 68, 75-76, 85, 94, 102-104, 109,

115, 122, 126, 132).

There was testimony that after making a sale,

petitioner would not remain long in the presence

of the purchaser (R. 36, 53, 60, 65, 73, 84 88-89,

102), one witness stating that as soon as petitioner

received his-$10 he *tmade a break for the car and

that aroused my suspicions,” that petitioner ‘had

to run to get inthe car * * *

and Roach [the co-

defendant }] had the ear started,” and that when the

witness called to petitioner to give him his address,

the petitioner said that it was on the receipt (R.

60-61). Graves, the guide, testified that petitione)

would cash checks at various gasoline stations as

soon as he received them (CR. 28). One Govern-

9

ment witness, whe sought to stop payment of his

check, learned that it had been presented to the

bank within an hour after he signed it (R. 129-

130).

The Assistant Coordinator of the TVA testified

that that agency /3 a corporation but is not a stock

company and does not issue any stock or units for

sale to the public (R. 89-91) ; and it was stipulated

that petitioner was not at any time an agent, em-

ployee, or representative of the Government, any

department thereof, or the TVA (R. 91).

ARGUMENT

I

Petitioner contends that the trial court erred in

overruling his motion for a directed verdict. He

asserts that the Government’s evidence was so un-

certain, conjectural, and inconclusive that it did

no. make out a case for the jury (Pet. 12).

While eencededly, because of the two previous

trials and the attempt to discredit witnesses by

reference to their former testimony, some con-

fusion and contradiction resulted, we submit that

the evidence heretofore summarized (supra pp.

4-9) fully justified the Cireuit Court of Appeals im

holding that there was substantial evidence incon-

sistent with the petitioner’s claim of innocence.

We think that that court correctly appraised the

evidence when it said (R. 348):

If appellant’s witnesses were to be believed,

appellant had simply engaged in an exten-

10

sive sale of advertising space in a newspaper

published in Huntsville, Alabama, for the

purpose of promoting, through community

cooperation, as appellant put it, rural devel-

opment of counties whose residents pur-

chased advertising, and appellant was not

responsible for the contrary impressions of

the government’s witnesses. On the other

hand, if the government's witnesses were to

be believed, appellant had capitalized upon

his prospects’ natural interest in the objec-

tives of the Tennessee Valley Authority by

leading them to believe he, as representative

of the United States Government, was rais-

ing money from private individuals to be

matched by government contributions for

the purpose of hastening development of the

Tennessee Valley Authority and insuring

extension of its benefits to their respective

communities.

With refereice to petitioner’s criticism that Gov-

ernment witnesses were unable to state with pre-

cision the words and actions of the petitioner

which were relied upon to establish his impersona-

tion of a Federal officer (Pet. 12-13, 27), it suf-

tices to say, as the Circuit Court of Appeals pointed

out, that a witness who, after a lapse of four years,

could recount all of the details surrounding an

event ‘‘would be either a genius o: unworthy of

belief"? (R. 349).

Petitioner asserts that the Government's evi-

dence showed no more than mere verbal declara-

tions by petitioner that he was a Federal officer,

ll

and that this was not enough under the statute

( Pet. 32-35). It is apparent, however, from the

Government’s evidence that petitioner not only

declared himself to be a Government officer, but

took it upen himself to act in that assumed capa-

city. Of course, as was stated by the court below

on petitioner’s first appeal (86 F. (2d) at p. 951), it

was not necessary, as the petitioner seems to insist

(Pet. 35), to constitute a violation of the statute,

that there be exhibited some badge or other insignia

of Federal office.

We submit, thercfore, that the Circuit Court of

Appeals correctly held that the petiticner’s motion

for a directed verdict was properly overruied.

If

The petitioner contends (Pet. 23-26) that the

trial court erred in refusing to give the special

instruction requested by him set forth at R. 308,

to the effect that officers aud employees of the TVA

were not within the seope of the statutory provi-

sions involved, and therefore that any claim or

representation by the petitioner that he was repre-

senting the TVA did not constitute a violation of

the statute.

It is asserted by the petitioner that it was the

theory of the prosecution that the petitioner by

representing himself to be an officer or employee

of the TVA, without more, violated the statute;

that nowhere in its charge did the trial court point

12

-”

out that it was not sufficient, to constitute an in-

fringement of the statute prior to its amendment

(supra, pp. 2-3), for the petitioner merely to have

falsely assumed to act as an officer or employee of

the TVA; and that no distinction having been made

in the charge between impersonating an officer of

the TVA and the impersonation of Government

officers, the jury was permitted to find the peti-

tioner guilty on evidence which went no further

than to show that petitioner claimed to represent

the TVA,

Preliminarily, it should be pointed out that, con-

trary to petitioner's repeated assertions, the Gov-

e™nment’s case was not based upon the theory that

officers and employees of the TVA are officers and

employees of the Government and that petitioner

violated the statute merely because he pretended to

be an officer or employee of the TVA. Each count

of the indictment (R. 1-11) charged the petitioner

with having assumed and pretended to be an officer

of the United States, to wit, a representative of

the Government selling TVA Units. And the evi-

dence heretofore summarized (supra, pp. 49)

abundantly established that the petitioner, by

words and acts, held himself out as ‘tan officer

acting under the authority of the United States

76

Government.’

* The trial court, in summarizing in its charge, the case on

behalf of the Government said (R. 304) :

There is consequently no oceasion

The Government alleges that the defendant claimed or

represented that he was an officer acting under the au-

13

to discuss the abstract question, raised by the pe-

titioner, whether the statute prior to its amend-

ment in 1938 applied to the impersonation of of-

ficers and employees of the TVA.’

With respect +o the refusal of petitioner’s re-

quested instruction, a perusal of the trial court's

charge readily discloses that the court adequately

dealt. with the proper effect to be given to evidence

of claims or representations by the petitioner that

he was acting for the TVA. Not only did the court

twice read (R. 295, 299-290) the entire statute to

the jury—once at the request of the petitioner—

and repeatedly caution the jury that it could not

find the petitioner guilty unless the evidence estab-

lished beyoud a reasonable doubt that petitioner

impersonated a Federal officer (R. 301, 202, 303,

204, 305), brit it specifically charged that (R. 206) :

In this connection the Court further in-

structs the jury that reference to the TVA

thority of the Government of the United States and as

such officer, sold or attempted te sell TVA Units.

‘In its opinion on the petiticener’s appeal from his first

conviction, the Circuit Court of Appeals, in disposing of

petitioner's legalistic contention that officers and employees

of the TVA were not. within the purview of the statute prior

to its amendment, said (86 F. (2d) at p. 951):

The allegations of the indictment are broader than the

contention implies, and to the allegations the proofs

respond. The defendants were not charged with repre-

senting themselves as agents or employees of the Ten-

nessee Valley Authority. They are charged with having

assumed or pretended to be representatives of the

government.

14

in cops of the Huntsville Daily Register,

exhibited by the defendant to any person,

from whom funds were solicited, and in the

siles talks made by him, to such person

should not be considered by you as evidence

of a false claim or pretense of Federal Au-

thority ou the part ef the defendant, Pierce,

unless you further find and are satisfied from

the proof, beyond a reasonable doubt, that

such reference to TVA, in either the news-

papers or sales talks, were made by the de-

fendant with th: irient of producing a belief

on the part of ‘ie person from whom funds

were solicited that he, the defendant Pierce,

was acting as an officer or employee of the

Federal Government. [Italies ours. |

It is therefore evident that the jury was adequately

advised that mere representations by the petitioner

that he was acting for the TVA would not alone

constitute a violation of the statute; that it was

necessary that the jury find in addition that by such

representations the petitioner was in facet pretend-

ing and assuming to act as an officer of the Govern-

ment. This was the most to which the petitioner

was entitled. Clearly any claim or representation

by the petitioner that he represented the TVA was

a violation of the statute if he meant thereby to

convey and did convey the impression that he was

an officer acting under the authority of the Federal

Government. The instruction sought by the peti-

tioner was not so qualified and therefore did not

adequately state the law. Petitioner was amply

SADT SOLENT OD OLR TIS SINE ERMINE

.} ve ee OE ee et ht Oh et .

PAR AR LO

Ae

Ne net ete er ana

RPE

PAM ART RI PLA EOP PART BASED Reg te

15

protected by the trial court’s charge against being

convicted on the basis of any claim or representa-

tion by him that did not go so far as to induce the

belief that he was acting as an officer of the

Government.

CONCLUSION

The ease was correctly decided below, there is no

conflict of decisions, and there is involved no im-

portant question 6 ‘éf Federal law. We therefore

respectfully submit that the petition for a writ of

certiorari should be denied.

Francis Bippir,

Solicitor General.

WENDELL BERGE,

7 Assistant Attorney General.

GerorGE F. KNEp,

FrReD E. STRINE,

W. MaRVIN SMITH,

Attorneys.

Apri 1941.

US GOVERNWERT PRIATING OFFICE 1941