Petition for a Writ of Certiorari — Bowen v. United States

—

tg MAR 21 1946

Supreme Court of the

United States

OCTOBER TERM, 1945.

973

ath eslthinectiinen

LESLIE G. BOWEN, PETITIONER,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

Dupuy G. WARRICK,

1415 Commerce Building,

Kansas City, Missouri,

Counsel for Petitioner.

CHARLES F. LAMKIN, JR.,

1415 Commerce Building,

Kansas City, Missouri,

Of Counsel.

OR a cade ae a en eR A AN A CAT ec

INDEX

Petition for Writ of Certiorari—

Summary Statement of the Matter Involved___.._ 1

Jurisdictional Statement 7

The Question Presented 9

Reasons Relied On for the Allowance of the Writ 9

Prayer for Writ. 10

Brief in Support of Petition for Writ of Certiorari—

Opinion of the Court Below 13

Jurisdiction —

Statement of the Case 15

Specification of Error... 15

Argument 16

Conclusion : 24

TABLE OF CasEs CITED

Allen vs. United States, 164 U. S. 492, 41 L. Ed. 528___6, 17

Allis vs. United States, 155 U.S. 117, 39 L. Ed. 91... 6

Brasfield vs. United States, 272 U. S. 448, 71 L. Ed. 345

_..7, 9, 10, 15, 17, 19, 20, 21, 23, 24

Burton vs. United States, 196 U. S. 283, 49 L. Ed. 482

Sa eee RED AES Oe 9, 10, 14-15, 17, 18, 19, 20, 21, 24

Nick et al. vs. United States, 122 Fed. 2d 660 (C. C.

A. 8th, 1941) 20

United States vs. Allis, 73 Fed. 165 6,17

TABLE OF STATUTES CITED

Section 17(a) of the Securities Act of 1933 (15 U. S.

C. A. 77q, 48 Stat. 84) 2

Section 5(a) of the Securities Act of 1933 (15 U. S.

C. A. 77e, 48 Stat. 906) 2

Ir INDEX

Mail Fraud Statute (18 U. S. C. A. 338, 25 Stat. 873;

35 Stat. 1130) 2

Section 240(a) of the Judicial Code, the Act of March

3, 1911, Ch. 231, Section 240, 36 Stat. 1157, As

Amended 43 Stat. 938 (28 U.S. C. A., Sec. 347 (a) ) 7, 14

Act of February 24, 1933, Ch. 119, Sec. 1-3, 47 Stat. 904,

As Amended by the Act of March 8, 1934, Ch. 49, 48

Stat. 399, As Amended 48 Stat. 926 and 49 Stat. 1921

(18 U.S. C. A., Sec. 688) 7-8, 14

Rule 11 of the Rules of Criminal Procedure After Plea

of Guilty, Verdict or Finding of Guilty of the Su-

preme Court of the United States, Promulgated May

7, 1934, As Amended 8, 14

Rule 38 of the Rules of the Supreme Court of the

United States. _8, 10, 14

Rule 39 of the Rules of the Supreme Court of the

| SCENE EE Ee NUNSY et SOE DD ENE IN ROC AUER 8

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Supreme Court of the

United States

OCTOBER TERM, 1945.

MU sccielaisilabictiitigets

LESLIE G. BOWEN, PETITIONER,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

To the Honorable Harlan Fiske Stone, Chief Justice of

the United States and the Associate Justices of the

Supreme Court of the United States:

The Petition of Leslie G. Bowen respectfully shows:

A.

SUMMARY STATEMENT OF THE MATTER

INVOLVED.

On July 12, 1944, an indictment in thirteen counts

(R. 1 to 53) was returned against the petitioner in the

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United States District Court for the Western Division

of the Western District of Missouri. The first six counts

charged the use of the mails in the sale of securities in

pursuance of a scheme to defraud, in violation of Section

17(a) of the Securities Act of 1933 (15 U.S. C. A. 77q; 48

Stat. 84). The seventh and eighth counts charged send-

ing through the mail, in pursuance of the same scheme

to defraud, of securities not registered in accordance with

the provisions of the Securities Act, in violation of Sec-

tion 5a of the Act (15 U. S. C. A. 77e; 48 Stat. 906).

The ninth to thirteenth counts, inclusive, charged the

use of the mails in pursuance of a scheme to defraud in

violation of the Mail Fraud Statute (18 U. S. C. A. 338;

25 Stat. 873; 35 Stat. 1130).

The scheme charged is set forth in the first count

of the indictment and is incorporated by reference in

the remaining counts. In general, it was alleged that the

three defendants, Leslie G. Bowen, Peter A. Marxen and

Ray H. Andrews, organized an unincorporated association,

known as Bowen Industries, for the alleged purpose of

financing the invention, development and perfection by

the defendant (petitioner here), Leslie G. Bowen, of a

washing machine, a two-speed bicycle sprocket, a speed

reducer and other machines; that for the purpose of pro-

viding a means for people to invest in the company, they

issued what were called “pre-organization certificates,”

which later were exchanged for shares of the capital stock

of Bowen Industries after its incorporation; that these

“pre-organization certificates” were known as “units of

membership” and were sold at a cost of $100 per unit;

that to obtain the investment by various persons in these

pre-organization certificates, the defendants made numer-

ous allegedly false and fraudulent misrepresentations (over

thirty in number), which are set out in great detail in the

indictment.

EMT ARIE AY CY DRT LY ISAO ATPL eat

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The petitioner, together with his two co-defendants,

was tried by jury upon the foregoing indictment, in the

District Court for the Western Division of the Western

District of Missouri. As a whole the evidence was that

some time about 1931 the petitioner engaged in conversa-

tions with certain persons, concerning the building of a

washing machine. These various persons gave sums of

money to petitioner, and a small shop was established in

Independence, Missouri, for the purpose of attempting to

develop and perfect the washing machine. While this

work was going on the petitioner manufactured a crude

model of a two-speed sprocket for use on bicycles. This

sprocket, which he later improved and patented, consisted

essentially of a kind of planetary gear transmission which,

when mounted on a bicycle, would enable the rider to

engage a low speed gear for the purpose of riding up

inclines and hills.

This model was exhibited to various persons and one

David Fritzlen, then an employee of the Monarch Bat-

tery Company in Chicago, became interested in the de-

vice. He desired to take the sprocket to Chicago and en-

gage in its manufacture on a royalty basis. The petitioner

and Fritzlen went to Chicago during the year 1935 and

entered into written contract under which Fritzlen was

to manufacture the sprocket on a royalty basis (R. 259).

These plans fell through and the petitioner and his asso-

ciates then determined to attempt to manufacture the

sprocket themselves. Accordingly petitioner undertook

to establish a plant in Chicago. He stated that it was

his intention to manufacture the various machines which

would be necessary to make the component parts of the

sprocket, for the reason that such machines could not be

purchased, and it would have been too expensive to

assemble the sprocket from parts made elsewhere. Space

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was rented and petitioner began to assemble and develop

various machines (R. 349, 350, 351, 478, 479). This work

went on over a period of approximately five years, from

1937 until 1942. In April, 1942, the company was incor-

porated under the laws of Illinois and for the remainder

of the period, up to the date of the indictment, engaged in

the successful manufacture of various small war contracts

(R. 569), after failing to fill a large contract for the Philco

Company, due to petitioner’s failure to develop screw

machines which he had advised the company he could

make. The petitioner also, in addition to his patents on the

bicycle sprocket, had developed and patented a speed re-

ducer, employing the same principle. Sprockets were

never actually put into production at his plant in Chicago

(although some parts were made) with the exception of

a few models which were manufactured in connection with

his activities with Fritzlen.

A great deal of equipment was either bought by the

petitioner and his associates or was manufactured by him

for the purpose of manufacturing the various parts of the

sprocket. The value and utility of this equipment was

disputed. A government witness, at one time general

manager of the company, testified (R. 193) that at the

time of his employment he appraised it at $18,000. An

expert appraiser, testifying for the defendant, stated (R.

423, 425) that it had a replacement value new of $234,255.96.

This project during the period it was in progress, was

first financed by the sale of what were called “pre-or-

ganization certificates.” These certificates were sold for

$100 each by various persons, including the co-defendants

and numerous others. Meetings of persons interested in

this company were held in Kansas City, Kansas, in a res-

taurant operated by the defendant, Ray H. Andrews. At

that place demonstrations would be given of the sprocket

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and of the speed reducer and those present would be in-

vited to participate if they were interested. It was in

connection with these various meetings, at which the

petitioner appeared from time to time, and also in connec-

tion with the sale of units at various other times and

places, that the alleged misrepresentations were made.

After the company was incorporated the units previously

sold were exchanged for an equal number of certificates

of stock in the new company. Thereafter, the company

borrowed money by issuing notes to various stockholders.

The total value of units sold during this period, according to

the company’s stock records, was $193,720.00, and $45,168.46

was borrowed by issuing notes. The mails were used in

connection with all of the foregoing, and there was no

registration of stock under the provisions of the Securities

Act of 1933.

The evidence as to misrepresentations made by the

petitioner and the other defendants, as to the petitioner’s

activities in Chicago, and as to the disposition of the pro-

ceeds of sales of units and of loans, was conflicting.

There was substantial evidence on the part of the govern-

ment that many of the alleged misrepresentations laid in

the indictment, and also others, were in fact made and

that large sums of money obtained by the petitioner and

his associates were unaccounted for. On the other hand,

there was substantial evidence on the part of the peti-

tioner, including some of the government’s own witnesses,

that he did not make the representations alleged in the

indictment and that those representations which he did

make were either true or he had ample reason to believe

them to be true, and that the sums obtained from investors

which came into his hands were applied for the purpose

of furthering the development and manufacture of the

bicycle sprocket and other inventions. There was no evi-

Pa a nae Cnaeycy ne

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dence that petitioner had spent unusual sums for personal

expenditures.

At the close of the evidence, petitioner’s motion for

a directed verdict was overruled, and the cause was sub-

mitted to the jury. After the jury had deliberated for ten

or twelve hours, the foreman sent a written communica-

tion to the Court (R. 591) which the Court told petitioner’s

counsel stated that the jury was hopelessly deadlocked,

It later appeared that the jury’s message actually read

“This jury is deadlocked on a 11 to 1 verdict. F. B. Alder-

son, Foreman” (R. 595). The Court thereupon called the

jury into the courtroom and verified the contents of the

note by stating to the jury he assumed they had not

reached a verdict, to which the foreman replied in the af-

firmative (R.591). He then gave the supplemental charge

appearing at R. 591, 592 and 593, and which in substance

advised the jury that it was important that the case be

decided, that they should take proper respect to each

other’s opinions and that if the larger part of the panel

was for conviction, a dissenting juror should consider

whether his doubt was reasonable; that if a majority was

for acquittal, the minority should consider whether their

judgment was correct, combined with a direction to con-

sider whether the defendants were not guilty and a

further direction to render a verdict of guilty in the event

they found a defendant guilty. The instruction so given

closely followed the one in United States v. Allis, 73 Fed.

165, 1. c. 183, affirmed Allis v. United States, 155 U. S. 117,

39 L. Ed. 91, and in Allen v. United States, 164 U. S. 492,

41 L. Ed. 528. To this charge the petitioner excepted and

moved that the jury be discharged on the ground that the

charge, coming immediately after the jury’s message, in-

vaded the province of the jury, was coercive and was an

invitation to render a verdict of guilty (R. 593). This

PEE TAR AF RAD IE BR I OR RIE A EROS

SAMI ETS AE

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motion was overruled, and the jury was sent to bed for

the night. At 10:30 A. M. the next morning (R. 604) a

verdict was returned finding the petitioner guilty on

all counts, and acquitting his co-defendants. The peti-

tioner was sentenced to three years on each count, to be

served concurrently.

The petitioner duly prosecuted his appeal to the Circuit

Court of Appeals for the Eighth Circuit, assigning as error,

among other things, the action of the District Court in giv-

ing the foregoing supplementary instruction, after being

advised of the numerical division of the jury (R. 84 to 88),

on the ground that the action of the trial Court was contrary

to the holding in Brasfield v. United States, 272 U. S. 448,

71 L. Ed. 345. The United States Circuit Court of Appeals

for the Eighth Circuit, by judgment entered February 21,

1946, affirmed the judgment and sentence of the District

Court.

The ruling of the Court of Appeals upon the sup-

plementary instruction aforesaid, given immediately

after the court was advised of the numerical division of

the jury, is the sole question presented by this petition.

B.

JURISDICTIONAL STATEMENT.

(1) The jurisdiction of this Court is invoked under

the provisions of Section 240(a) of the Judicial Code, the

Act of March 3, 1911, Ch. 231, Sec. 240, 36 Stat. 1157, as

amended 43 Stat. 938 (28 U. S. C. A., Sec. 347(a)), which

empowers this Court to review by certiorari the judg-

ments of the Circuit Courts of Appeal in criminal cases,

upon the petition of any party thereto; the provisions

of the Act of February 24, 1933, Ch. 119, Sec. 1-3, 47 Stat.

904, as amended by the Act of March 8, 1934, Ch. 49,

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48 Stat. 399, as amended 48 Stat. 926 and 49 Stat.

1921 (18 U.S. C. A., Sec. 688), which empowers this Court

to prescribe by rule the times for and manner of applying

for writs of certiorari in criminal cases; and, the provi-

sions of Rule 11 of the Rules of Criminal Procedure after

riea of Guilty, Verdict or Finding of Guilt of the Supreme

Court of the United States, promulgated by this Court

May 7, 1934, as amended, which provides that petition for

ceruorari in criminal cases shall be filed within thirty

uays or the entry of the judgment of the appellate court,

and shail be made as prescribed in Rules 38 and 39 of

the Supreme Court of the United States.

(2) The judgment of the Circuit Court of Appeais

for the Eighth Circuit was entered February 21, 1946 (R.

618). Thereafter that Court stayed its mandate until

March 30, 1946, pending the filing of petition for certiorari

by the petitioner (R. 619). This petition is filed prior

to that date, and within thirty days from the entry of the

judgment in the Court of Appeals, as required by Rule 11

above.

(3) The statutes set out in (1) above provide that

this Court shall have the power to review by certiorari,

the judgments of the Circuit Courts of Appeal in criminal

cases, and to make rules governing petitions for certiorari.

Rule 11 set out in (1) above provides such petitions shall

be made in accordance with Rules 38 and 39 of this Court.

This Court has jurisdiction under those statutes and under

that provision of Rule 38 (5) (b) of this Court, which pro-

vides that this Court may grant certiorari where a Circuit

Court of Appeals “has decided a federal question in a way

probably in conflict with applicable decisions of this

Court.” The judgment of the Circuit Court of Appeals

sustaining the trial court in giving the coercive instruc-

QE FREER SPN ENTE Tet a

tion to the jury immediately after being advised by the

jury that it was numerically divided 11 to 1, is in conflict

with the decisions of this Court in Burton v. United States,

196 U. S. 283, 49 L. Ed. 482 and Brasfield v. United States,

272 U. S. 448, 71 L. Ed. 345.

C.

THE QUESTION PRESENTED.

By sustaining the trial Court in giving the supple-

mentary instruction to the jury urging agreement, di-

recting the minority to consider the opinion of the majority

and directing the jury to consider whether the petitioner

was not guilty of some count, immediately after the jury

had voluntarily by written message advised the Court it

was deadlocked at 11 to 1, and the Court had verified the

message by the general question that he assumed they

had not reached a verdict to which the foreman replied

in the affirmative, did the Court of Appeals decide

a federal question in a way probably in conflict with

the decisions of this Court in Burton v. United States,

196 U. S. 283, 49 L. Ed. 482 and Brasfield v. United

States, 272 U. S. 448, 71 L. Ed. 345?

D.

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

The decision of the Circuit Court of Appeals upon

the question presented by the trial Court's action in giv-

ing a coercive instruction to the jury immediately after

he was advised by the jury in writing that it was dead-

locked and numerically divided 11 to 1 and after he had

verified that information as before set out, is in conflict

CE eS AeA ANE KEATS eb a

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with the decisions of this Court in Burton v. United States,

196 U. S. 283, 49 L. Ed. 482 and Brasfield v. Uiited States,

272 U. S. 448, 71 L. Ed. 345, and is a ground for review by

certiorari by this Court under that part of Rule 38(5) (b)

of this Court, which provides that this Court may grant

certiorari where a Circuit Court of Appeals “has decided

a federal question in a way probably in conflict with ap-

plicable decisions of this Court.” This Court, in Burton

v. United States, strongly condemned a verification by the

trial court as to the numerical division of the jury after

he was advised of it by written message. The case was

reversed on other grounds. Thereafter this Court held,

in Brasfield v. United States, that the inquiry alone, as

to how the jury stood numerically, without an indication

as to the position of the majority upon the issues, was re-

versible error. The reason given was that such a inquiry

is coercive. Where, as here, a trial Court by written

message is voluntarily advised by the jury as to its nu-

merical division, and the Court verifies that information

by stating in the form of an inquiry that he assumes

they have not reached a verdict, and then immediately

gives an instruction urging a verdict and directing the

minority to consider the opinion of the majority, a co-

ercion is presented more certain and demonstrable than

the mere inquiry as to the jury’s numerical division,

standing alone. The Court of Appeals decided this ques-

tion in a manner in conflict with the applicable decisions

of this Court.

E.

PRAYER FOR WRIT.

Wherefore, your petitioner prays that a writ of cer-

tiorari issue under the seal of this Court directed to the

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Circuit Court of Appeals for the Eighth Circuit, com-

manding said Court to certify and send to this Court a

full and complete transcript of the record and of the pro-

ceedings of the said Circuit Court of Appeals had in the

case numbered and entitled on its docket No. 13066, Leslie

G. Bowen, Appellant, vs. United States of America, Appel-

lee, to the end that this cause may be reviewed and de-

termined by this Court as provided for by the statutes of

the United States, and that the judgment herein of the

said Circuit Court of Appeals be reversed by the Court,

and for such further relief as to this Court may seem

proper.

Dated March 15, 1946.

Leslie G. Bowen,

Petitioner.

Dupuy G. WARRICK,

1415 Commerce Building,

Kansas City, Missouri,

Counsel for the Petitioner.

CuarLes F. LAMKIN, JR.,

1415 Commerce Building,

Kansas City, Missouri,

Of Counsel.