# Appendix — United States v. Cook

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1966
- **Citation:** 384 U.S. 257

## Text

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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

=

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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8

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0264%3A1. Public record. Not legal advice.