Appendix — United States v. Cook

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Supreme Court of the United States

OCTOBER TERM, 1965

No. 256

UNITED STATES, APPELLANT

vs.

JOHN W. COOK

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

INDEX

Original Print

Record from the United States District Court for

the Middle District of Tennessee, Nashville Divi-

sion

Indictment ......... he pane 1 1

Motion to withdraw plea of not guilty and to

dismiss indictment. .............-........-...-.-:0.-ics--+e0s- 2

Order dismissing indictment ete 3

Docket entries . 4 6

Notice of appeal to the Supreme Court of the

United States ae 5

Clerk’s certificate (omitted in printing) .... 7

Order noting probable jurisdiction 8 9

(fol. 1]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

Criminal No. 13,717

18 U.S.C. § 660

UNITED STATES OF AMERICA

Vv.

JOHN W. Cook

INDICTMENT—Filed December 15, 1964

The Grand Jury charges:

On or about the 10th day of June 1964, in the Nash-

ville Division of the Middle District of Tennessee, John

W. Cook, being an employee, that is, a truck driver for

Tolbert Hawkins, an individual engaged in commerce as

: a common carrier, riding in and upon a truck of such

| earrier moving in interstate commerce from Tampa, State

: of Florida, to Lebanon, State of Tennessee, wilfully and

4 knowingly did embezzle, steal and convert to his own use

monies of the said carrier arising and accruing from such

commerce, to wit, the sum of approximately $200.00,

which sum was part of the monies of said carrier arising

and accruing from an interstate shipment of bananas

from Tampa, Florida, to Lebanon, Tennessee.

In violation of Title 18, United States Code, Section

660.

A TRUE BILL

/s/ Claude B. Garrison

Foreman

/s/ James F. Neal

United States Attorney

| fol. 1 A]

Form No. 185

No.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

Tue Unrrep STATES OF AMERICA

vs,

Joun W. Cook

INDICTMENT

IS ULS.C., $ 660

A true bill ,

s’ Claude B, Garrison

Foreman,

Filed in open court this day of , A. D, 19

Clerk.

Bail, §

| File Endorsement Omitted |

~ az < Aa ase ty rs “ir SAREE DRI Sihaspap SPL ESESS

_—

{fol. 2]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

No. 18,717

| File Endorsement Omitted]

UNITED STATES OF AMERICA

v’.

JOHN W. Cook

Motvion TO WITHDRAW PLEA OF Not GUILTY AND To

Dismiss INDICTMENT——Filed Mareh 17, 1965

1. Comes the defendant, John W. Cook, and moves the

Court that he be permitted to withdraw his plea of not

guilty, heretofore entered in this cause.

2. The defendant, John W. Cook, further moves the

Court to dismiss the indictment, heretofore returned

against him by the Grand Jury, upon the following

ground:

‘ The indictment is predicated on Title 18, United States

Code, Section G60, which statute declares in’ pertinent

part as follows:

“Whoever, being a president, director, officer, or man-

ager of any firm, association, or corporation engaged

in commerce as a common carrier, or whoever, being

an employee of such common carrier riding in or

upon any * * * motortruck, * * * of such carrier mov-

ing in interstate commerce, embezzles, * * " any of

the moneys, © * * of such firm, association or corpora-

tion arising or accruing from * * * such commerce,

* * * shall be fined not more than $5,000 or impris-

oned not more than ten years, or both,”

Said indictment is fatally defective on its face in that

it charges the defendant with embezzlement of moneys

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as an employee of an individual engaged in interstate

commerce, whereas the statute penalizes embezzlement by

an employee of a firm, association, or corporation en-

gaged in such commerce.

4

Respectfully submitted,

/s/ Thomas H. Peebles III

Attorney for Defendant

(fol. 3]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

Criminal No. 13,717

UNITED STATES OF AMERICA

Vv.

JOHN W. Cook

ORDER DISMISSING INDICTMENT—March 18, 1965

Upon motion of the defendant to dismiss the indictment

in the above cause on the ground that it fails to charge

an offense against the United States and upon argument

of counsel, the Court is satisfied that the indictment, in

charging that the defendant acted as an employee of “an

individual” fails to charge a violation of 18 U.S.C., $ 660

which only forbids the proscribed acts when committed by

employees of a “firm, association or corporation”, and it

is accordingly

—

ORDERED, ADJUDGED AND DECREED by the

Court that the indictment in the above cause be dismissed

and that the Marshal release the defendant.

5

/8/ Frank Gray, Jr.

United States District Judge

Approved for Entry:

JAMES F, NEAL

United States Attorney

/s/ Carrol D. Kilgore

CARROL D. KILGORE

Assistant U.S. Attorney

March 18, 1965

PAE ae RW ESR LE AOI

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6

(fol. 4]

IN THE UNITED STATES DISTRICT COURT

DOCKET ENTRIES

THE UNITED STATES

vs.

JOHN W. Cook, Metro Jail, Nashville, Tennessee

VIOLATIONS; Sec. 660, ONE (1) COUNT

Title 18 USC. (Embezzlement of moneys from Carrier

moving goods interstate commerce, etc).

ATTORNEYS

For U.S.:

JAMES F. NEAL & Staff

For Defendant:

THOMAS H. PEEBLES, III

ERE A Ly RG SEES APR Sak BRAK Ea A ee

(appointed )

: Statistical Record Costs

% See —— a ——— ae LS ————. — Z

J.S. 2 mailed Clerk

J.S. 3 mailed Marshal

Violation Docket fee -

Title :

Sec.

Date ne ae Proceedings ae ;

12/15/64 Indictment filed. (B.0.P.s filed Nov. 2, 1964)

2/19/65 Defendant P.N.G.—ORDER entered that this case be set

for trial on February 24, 1965.

2/20/65 OF.DER entered that this case, heretofore set to be tried

on February 24, 1965—is passcd to be reset. Copy to

U.S.D.A.

Date

Proceedings

3/15/65

3/17/65

3/18/65

4/16/65

4/26/65

4/28/65

a ry MER ERROR

Subpoenas issued to Gene Shehane; Daniel Norton; Ken-

neth O. Lester; Tolbert Hawkins and Dave Phelps (latter

3 to bring documents) all to appear on behalf of Govern-

ment 22nd March, 1965—8:00 A.M. Two of each to

U. S. Marshal for execution.

Motion filed by defendant to be permitted to withdraw

his plea of guilty; also MOVES the Court to dismiss the

indictment—said indictment is defective in that it

charges defendant with embezzlement of moneys as an

‘employee of one engaged in interstate commerce where-

as the statute penalty is for embezzlement by an em-

ployee of a firm, etc, engaged in such commerce. Certifi-

cate of service attached.

ORDER entered that this case be dismissed—upon MO-

TION of the defendant, on grounds that indictment fails

to charge an offense against the United States; OR-

DERED that the U. S. Marshal] release the defendant. At-

tested copy to U. S. Marshal and one to U.S.D.A.

NOTICE of APPEAL to the SUPREME COURT of

the UNITED STATES filed by the Plaintiff, the United

States of America,

Official Court Reporter’s transcript filed . . . proceedings

had on March 18, 1965.

Certified copy of the record designated in the Notice of

Appeal delivered to United States Attorney, with trans-

mittal letter.

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[fol. 5]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

Crim. No. 18,717

|File Endorsement Omitted]

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

JOHN W. Cook

NOTICE OF APPEAL TO THE SUPREME COURT OF THE

UNITED STATES—Filed April 16, 1965

I. Notice is hereby given that the United States appeals

to the Supreme Court of the United States from the order

of March 18, 1965, dismissing the indictment which

charged the defendant, John W. Cook with violating 18

U.S.C. 660.

This appeal is taken pursuant to 18 U.S.C. 37381.

II. The Clerk will please prepare a transcript of the

record in this cause for transmission to the Clerk of the

Supreme Court of the United States and include therein

the following:

1. Transcript of docket entries.

2. Indictment.

3. Motion to dismiss the indictment.

4. Order of March 18, 1965, dismissing the indictment.

5. This Notice of Appeal.

III. The following question is presented by the appeal:

Whether an indictment which charges an employee of

an “individual” common carrier in interstate commerce

with theft of money of his employer accruing from in-

— ees

——

9

terstate commerce, charges an offense under 18 U.S.C. 660

which proscribes such conduct when committed by the

employee “of any firm, association, or corporation en-

gaged in commerce as a common carrier.”

{fol.6] Dated this 15th day of April, 1965.

/s/ James F. Neal

United States Attorney

Middle District of Tennessee

[Certificates of Service Omitted in Printing}

|fol. 7]

{Clerk’s Certificate Omitted in Printing]

| fol. 8]

SUPREME COURT OF THE UNITED STATES

No. 256, October Term, 1965

UNITED STATES, APPELLANT

Vv.

JOHN W. Cook

APPEAL from the United States District Court for

the Middle District of Tennessee.

ORDER NOTING PROBABLE JURISDICTION—December

18, 1965

The statement of jurisdiction in this case having been

submitted and considered '+ the Court, probable juris-

diction is noted and ine case 's placed on the summary

calendar.

WU. 8. GOVERNMENT PRINTING OFFICE, 1965 797325 423