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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United State in Opposition
- **Published:** January 1, 1941
- **Citation:** 314 U.S. 306

## Text

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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0460%3A7. Public record. Not legal advice.