# Petition for a Writ of Certiorari — Baker v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 329 U.S. 829 ## Text IN THE Supreme Court of the Unite} Sree woe Ocroser Term, 1946 No A484 | Miuiarp C, Baker, [sapore Water Kaun, Bensamin L. Levy, A. M. Sari, Wuu1am B. Biep, Gasaret Diaz and EManvEt M. Burern, Petitioners, —against— Unirep States or AMERICA. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, AND BRIEF IN SUPPORT THEREOF ie \ === { Henry G. Since Attorney for Petitioners 16 Court Street Brooklyn 2, New York Harry SI.ver, of Brooklyn, New York Txomas E. Furtow G. Ray Gru. Witutum C. OrcHarp Hues M. Witxrson Joun D. Lampert Hvuex M. Wrxrnson, JR. Samuget A. Tennant, all of New Orleans, Louisiana, With him on the Brief © RECORD PRESS—NYC—REctor 2-2638 wee va SOARES Te comers a PORE AOD AO OE or eon on panama at a ea Dir cit INDEX Petition FoR Writ oF CERTIORARI: Statement of Jurisdiction Opinions Below Statement of the Matter Involved Questions Presented Reasons for Allowance of the Writ Certificate of Counsel Brier in Support oF PETITION: Statutes Involved Statement of Facts The Indictment The Evidence Counts 1 and 2 Count 4 Count 5 . PAGE 22 24 se. ooo ARGUMENT: I. The trial court deprived the defendants of a Il. IIi. fair trial in accordance with constitutional con- cepts by instructing the jury, “but this pre- sumption of innocence will avail the defendants no further, so soon as prima facie evidence of the truth of the charges laid against them in the indictment is presented to the jury. That prima facie evidence, if it satisfies the jury beyond a reasonable doubt of the guilt of the defendants, bars the presumption of innocence, because thé presumption is no evidence at all, and plays its part only so long as there is absence of legal evidence as to the particular fact to be es- tablished” (1703) The trial court committed reversible error in instructing the jury that “it (the presumption of innocence) is not intended, nor has it ever been intended as extending to one who in fact is guilty, so that he or she may escape just punishment” (1703) The trial court erred when it charged the jury that in considering the credibility of witnesses, the jury should “bear in mind that, under the law, every witness is presumed to intend to speak the truth” (1704). This was es) ecially prejudicial since the only witnesses who testi- fied were Government witnesses PAGE 26 31 IV. The trial court erred when it emphatically re- VI. - sine qua non of the case is lacking fused to charge, upon request, that the failure of certain petitioners to testify in their own behalf should not be used against them (1725- 6). It was likewise error to make this charge belatedly, after the jury had deliberated for at least six hours at which time charge was made as to all defendants, including those who had specifically rejected such charge The critical issue—did defendants place or cause to be placed the alleged matter in the mails?—remains unanswered by the jury’s ver- dict. The court instructed the jury that they need not decide this question, that it was suf- ficient if any mailing at all occurred. Thus, the The evidence adduced at the trial was insuf- ficient to warrant the submission on Counts 1 and 2 to the jury. It was thus error to sustain the conviction of these counts eae The testimony failed to disclose where the let- ters were mailed or that in fact they were mailed There was no testimony offered to show what accompanied the letters and whether the deeds contained therein were “securities” under the Securities and Exchange Act ..........-.---------------- PAGE 34 36 38 38 PRA ELL LAA LEAL EES ae PAGE iv C. The deeds referred to in Counts 1 and 2 were not “securities” 41 D. The failure of the Circuit Court of Appeals to make a determination as to whether these deeds were “securities” deprived petitioners of an in- termediate decision. The question—are cash deeds “securities”—is important and novel and ought to be decided 42 VII. The proof under Count 4 was insufficient as a matter of law. It was error to sustain the con- viction on this Count ia A. The transmission through the mails of the check after the transaction was completed was not a violation of the statute (Kann v. United tn Stee See. CU I chtensteeincehietnninicnniesiintepiimnin 43 B. There was no proof that the acts of Diaz or Baker in the transactions preceding the mail- ing involved in Count 4 were pursuant to and in furtherance of the scheme to defraud ............ 44 C. Assuming that a scheme to defraud was es- tablished, it still was the function of the jury to determine whether the acts of Diaz and Baker under Count 4 were part of that scheme. The jury, however, was ordered to consider the case on the theory of “one scheme” and that the act of any defendant was the act of all. Thus, reversible error was committed -................-.-..-.... PAGE VIII. The proof under Count 5 is insufficient. It was error to sustain the conviction on this Count 49 A. The return of a recorded deed through the mails by a Recording Agent was not a viola- tion of the Statute 49 B. There was no allegation in the indictment that the return of a deed through the mails by a Recording Officer was part of the scheme ........ 50 C. The transaction between Kiefer-Silverman and Duling was not a part of the “single scheme” 50 IX. The Circuit Court erred in sustaining the con- victions because the evidence sh«wed a number of separate and independent schemes and not a single general scheme charged in the indict- ment 51 ConcLusion. The writ of certiorari should:be granted 52 a — ee ee ee oY vi PAGE Table of Cases Cited: Agnew v. United States, 165 U. S. 36, 51, 56 -....... 97 Baumgartner v. United States, 322 U. S. 665 ........ 40 Berger v. United States, 295 U. S. 78 -.................. 7 Bihn v. United States, U.S. , 90 Law Ed. 1208, 1211 37 Bollenbach v. United States, 327 U.S. , 90 Law Bean: NODE sacadnlobitatasnichclahsbndieeanhahishiornbembbinaiphcaastiniemitun 3, 30, 34 Brady v. United States, 24 Fed. (2d) 399, 403 ........ 11, 39 Brasfield v. United States, 272 U. S. 448, 450... 97 Bruno v. United States, 308 U. 8. 287 ......0......... 11, 34, 35, 36 Cochran v. United States, 157 U. S. 286 -..0.0...... 11, 26 Coffin v. United States, 156 U. S. 432, 456-461 .... 3, 11, 26 27, 28, 30 Davis v. United States, 63 Fed. (2d) 545, 546 ...... 11, 39 Dodson v. United States, 23 Fed. (2d) 401, 402... 27,35 Freeman v. United States, 20 Fed. (2d) 748, 750 ... .... 6, 11, 36, 39 Gerdes v. Lustgarten, 266 U. S. 321, 327 000... 12, 43 Gomila v. United States, 146 Fed. (2d) 372, 378 .... 4, 31 Hurwitz v. United States, 299 F. 47 34 Kann v. United States, 323 U. S. 88 20000... 6, 12, 24 43, 44, 49 Kirby v. United States, 174 U. S. 47, 55 2000. 11, 26, 27 vii Kotteakos v. United States, U. S. , 89 Law Ed. 1178 7, 12, 48, 52 Lutcher & M. Lumber Company v. Knight, 217 U.S. 257, 268 12, 43 McAdams v. United States, 74 Fed. (2d) 37, 40 .... 32 Mackett v. United States, 90 Fed. (2d) 462, 464 39 Mitchell v. United States, 126 Fed. (2d) 550, 554 50 Rosen v. United States, 245 U. S. 467 -.................. 34 Ross v. United States, 92 U.S. 291 es aa Securities and Exchange Commission v. Bailey, 41 F. Supp. 647, 650 41, 42 Securities and Exchange Commission v. Joynor Leasing Corp., 320 U. 8. 344 42 Shettel v. United States, 113 Fed. (2d) 34 -........... 34 Steiner v. United States, 134 Fed. (2d) 981 -........... 39 Tot v. United States, 319 U.S. 463 ; 34 United States v. Baker, 50 Fed. (2d) 123 —............. 39 United States v. Cohen, 145 Fed. (2d) 182, 190 Sr NE TIRE Ts Ta FO eiciectiintarrieccticicrencnccisin 6, 11, 36 United States v. Falcone, 311 U. S. 205 —....00...... 47 United States v. Lekacos, 151 Fed. (2d) 170,172 47,45 United States v. Peoni, 100 Fed. (2d) 401 ................ 47 Vernon v. United States (CCA 8) 146 F. 121, 126 iti Vill ‘ PAGE Other Authorities Cited: Section 240 (a) Judicial Code, 28 U. S. C. Section 347 (a) bo Sections 687, 688, Title 18, U. S. C., Section 723(a), Title 28, U.S. C. A. Rules of Criminal Procedure, Rule 37 {b) ............ 2 15 U. S. C. 77 (q) (Securities and Exchange Act) 2,9,11 15, 22 18 U. S. C. 338 (Mail Fraud Act) 2022... 2, 15, 43 Wills on Circumstantial Evidence —...020000000........ 28 2 Thompson on Trials, 2d Ed. sec. 2420, p. 1683 .... 33 IN THE Supreme Court of the Anited States Ocroser Term, 1946 No. —>— Muxarp C. Baker, [saporr Water Kaun, Bensamin L. Levy, A. M. Sarr, Wituiam B. Birp, Gasrre, Diaz and Emanvet M. Burern, Petitioners, —against— Unirep States or AMERICA. —~<> PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, AND BRIEF IN SUPPORT THEREOF To the Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States: The petitioners, Mitarp C. Baker, IsaporE WatrTeEr Kaun, Bensamin L. Levy, A. M. Sari, Wrtu1am B. Biro, GasrieL Diaz and Emanvet M. Buren, respectfully pray that a Writ of Certiorari issue to review the judgment of the United States Circuit Court of Appeals for the Fifth Cireuit entered on July 10, 1946 (2397), rehearings denied August 12, 1946 (2440). 1 All numerical references, unless otherwise stated, are to pages of the printed record. —¥ The jurisdiction of this Court is invoked under Section 240(a) of the Judicial Code, 28 U. S. C., Section 347(a), and under Sections 687, 688, Title 18, U. S. C., Section 723(a), Title 28, U. S. C., and the Rules of Criminal Pro- cedure adopted thereunder, particularly Rule 37(b). The Circuit Court of Appeals affirmed the judgments of conviction of the petitioners on July 10, 1946 (2397). j This petition is filed within thirty days from the date of the denial of the petitions for rehearing (Rule 37(b) of the Rules of Criminal Procedure). 2 Statement of Jurisdiction Opinions Below There was no opinion in the District Court. The opinion of the Circuit Court of Appeals (Hutcheson, Waller and Lee, Circuit Judges) has not yet been officially reported and is printed at pages 2397 to 2410 of the Record. Denial of rehearing was without opinion (2440). Statement of the Matter Involved The judgment of the United States Circuit Court of Ap- peals sought to be reviewed affirmed judgments convicting the petitioners on March 10, 1944, in the United States District Court for the Eastern District of Louisiana for the violation of 15 U. S. C. 77(q) (Securities and Exchange Act) (Counts 1 and 2) and also for violation of 18 U.S. C. 338 (Mail Fraud Act) (Counts 4 and 5) (2-36). The Court sentenced all of the petitioners to long terms of imprisonment.’ 2 Petitioners Baker and Diaz were each sentenced to a term of imprison- ment of five years on Count 4 and one year on Count 5, to run consecutively, and to five years on Counts 1 and 2, to run concurrently with the sentence under Count 4—a total of six years each (171-2, 182-3). Petitioners Safir, Bird, Kahn Tried together with petitioners upon the same indictment, likewise convicted and sentenced to long terms of im- prisonment were Nathan Silverman and Rubein V. Johnson, both of whom are filing individual applications for cer- tiorari. Additional defendants, not tried, were Manzello who died, and Kiefer who was in the Army, at the time of trial. Over- gaard was named as a confederate but was not indicted because he had died (2). This judgment is the result of a series of errors of the first magnitude. The trial court’s basic instructions to the jury features not merely a single misdirection concerning “the substance of the standard by which guilt is deter- mined in our courts” (Bollenbach v. United States, 327 U.S. , 90 Law Ed. 318), but a repeated number of like errors which should not be permitted to stand. Intensify- ing the errors dealing with the general standards relating to the petitioners’ guilt were a number of major prejudicial errors in the charge dealing with propositions of pertinent statutory and common law, as applied to the facts of this case. The cumulative prejudicial effect of all this is of overwhelming proportions. In addition, the Circuit Court opinion sustaining the convictions is directly in conflict with controlling authority on several scores, and against the weight of authority on others. In direct conflict with the holding of this Court in Coffin v. United States, 156 U. S. 432, 456-461, the trial court charged that the presumption of innocence is “no evidence at all” (1703), and lest there be any doubt in the jury’s and Levy were each sentenced to serve a term of four years on Count 4 and one year and one day on Count 5, to run consecutively to the term imposed on Count 4, and five years on Count 1 and Count 2, to run concurrently with the terms imposed under Counts 4 and 5—a total of five years and one day (176-7, 179-180, 180-1, 182-3). Petitioner Burgin was sentenced to a total of 7 years. oo ete ECO A EN FF mind as to the sweep and significance of this statement, the Court made it explicit that “this presumption of innocence will avail the defendants no further, so soon as prims facie evidence of the truth of the charges laid against them in the indictment is presented to the jury * * *” and the presumption “plays its part only so long as there is no legal evidence as to the particular fact to be established” (1703). The Court further emasculated the presumption of inno- cence by improperly charging that the presumption of innocence was not intended “as extending aid to one who in fact is guilty” (1703). It was apparent that the Court completely misapprehended the essential significance of this presumption which the Fifth Circuit said in another case applies to all—gujilty or innocent. The holding in this ease is directly contrary to the decision of the same Circuit in Gomila v. United States, 146 Fed. (2d) 372, 373, on the same subject where the same trial court was reversed and the conviction set aside because this self-same charge had been made. It is significant to note that reversal followed in the Gomila case even though no exception appeared in the record. Adding to the foregoing basic errors was the Court’s charge in this case, where no defendant took the witness stand and where the jury considered it a close case, as evi- denced by deliberation of more than six hours, that prima facie evidence of the facts alleged in the indictment “brushes aside the presumption of innocence” and jis suffi- cient when it “is not met by the defendants opposing satis- factory evidence” (1703). The charge continued to say that the jury, in judging the credibility of witnesses, of whom there were none but government witnesses, “will bear in mind that, under the law, every witness is presumed to in- tend to speak the truth” (1704). The damage caused by 4 5 the latter artificial presumption must be viewed in the set- ting of the whole case in which almost all of the govern- ment witnesses who bought land from or through any of the defendants and petitioners had repented of their bar- gain and many of them had been compelled to grudgingly concede that in dealing with particular petitioners or de- fendants, these government witnesses themselves be- lieved that they were conspiring with these defendants to take advantage of breaches of trust. Thus, with the presumption of innocence rendered inoper- ative, and the defendants called upon to produce “satisfac- tory evidence”, this artificial presumption became crucial. There was nothing left for the jury to consider except the testimony of the government witnesses. The Court in its charge further removed all possible doubt of the ultimate result when it said that its submission of the case to the jury meant thai there was substantial evidence under each count so submitted (1705). The petitioners were thus de- prived of a fair trial on any factual question, a verdict of guilt was directed against them in no uncertain language, and the only thing that might have been a factor to be con- sidered by the jury—the presumption of innocence—was forcibly taken from them. Under these circumstances, a review of this conviction is required. Althoagh the indictment charged, as the statute required it to charge, that the defendants placed or caused to be placed certain matter in the mails in furtherance of an alleged scheme to defraud, the trial court took this issue from the jury by charging that under the facts of this case they need not find, in order to determine guilt, that the de- fendants did so place or cause to be placed the matter in question in the mails (1714). Thus, again, conviction was assured because the basic issue in the case—the mailing or causing to be mailed by the defendants of matter in fur- therance of the scheme—was taken from the jury’s con- ee Pte Gen OB oa sideration. Hence, the petitioners have been convicted under a charge which was directly contrary to the established weight of authority. (See United States v. Cohen, 145 Fed. (2d) 182, 190, cert. denied, 323 U. S. 793; Freeman v. United States, 20 Fed. (2d) 748, 750). It is significant to note that the only counts charged in the indictment and the only counts on which the petitioners were convicted were so-called mailing counts. The scheme to defraud was not charged independently as a conspiracy but was alleged directly in the first count and by reference in the others. The proof offered at the trial failed to support the verdict. By that, we do not mean that it was against the weight of evidence, but rather that all the evidence did not measure up to the standard required for the submission of any count to the jury. As to Count 5, the proof showed that the mailing, if it occurred, could not be in furtherance of the so-called scheme to defraud, because it was the return to the grantee of a re- corded deed by the recording officer. This was not even al- leged as part of the scheme. As to Count 4, the proof showed that the alleged use of the mails was not in furtherance of the alleged scheme to defraud and that the actions of the petitioners could not be interpreted as furthering this scheme. Since this mailing involved the transmission of a check for collection by a bank in which the check was deposited after the transaction al- legedly fraudulent was completed, the decision of the Cir- cuit Court sustaining the conviction under this count is directly contrary to the holding of this Court in Kann v. United States, 323 U.S. 88. As to Counts 1 and 2, it suffices to say that nothing was offered to connect these mailings, if indeed they were such, with the scheme. 6 7 Contrary to this Court’s holding (Ross v. United States, 92 U. S. 291), and indeed, contrary to uniform authority, the Circuit Court sustained the conviction under the mailing counts on the theory that inferences could be drawn from inferences. Even though the trial court submitted the case to the jury as a single scheme, the Circuit Court seemed to have some doubt on the subject (2408). It, however, brushed aside the claim of variance upon the authority of Berger v. United States, 295 U.S. 78. The Circuit Court did refer to Kottea- kos v. United States, U.S. , 89 Law Ed. 1178, but stated that it did not apply to the facts herein. With the latter view, we respectfully disagree, and earnestly contend that the proof ir. this case showed that at least eight, if not more, separate and independent schemes existed. This we will establish in our discussion of the evidence in the brief accompanying the petition. On this subject, however, it is essential to see that even if a general scheme existed, there was substantial evidence on the basis of which a jury, free to consider the subject, might have, and we believe would have, decided that the transac- tions connecting the petitioners under Counts 1, 2, 4 and 5 (for different reasons in each count) were not part of the general scheme and that petitioners’ connection therewith was not fraudulent. The jury, however, were not so free to find because the Court emphatically submitted the case and all the evidence on the theory of one scheme, and only one scheme, and upon the further theory that guilt of one is guilt of all (1209-10, 1702, 1706, 1708, 1710). That the jury followed the Court’s erroneous charge and were misled by this theory is an unrebuttable presumption of law. | A 91 SGI SLE OOLLE POLLO RE. j (a) (b) (c) (d) 8 Questions Presented 1. Did the Circuit Court err in sustaining these convic- tions despite the cumulative effect of the following preju- dicial errors in the basic instructions to the jury? * “But this presumption of innocence will avail the defendants no further, so soon as prima facie evi- dence of the truth of the charges laid against them in the indictment is presented to the jury. That prima facie evidence, if it satisfies the jury, be- yond a reasonable doubt, of the guilt of the defen- dants bars the presumption of innocence, because the presumption is no evidence at all, and plays its part only so long as there is absence of legal evi- dence as to the particular fact to be established. If such prima facie evidence, which so brushes aside the presumption of innocence when found worthy of belief by the jury, is not met by the defendants’ opposing satisfactory evidence, then that simple prima facie evidence, if it convinces you gentlemen of the jury, as the final judges of the fact, that guilt has been proved, beyond a reasonable doubt, would justify you in rendering a verdict of guilty as charged” (1703-4, Emphasis supplied). “But, as forceful as that rule [presumption of innocence] is in the protection of one who stands charged with crime, it must not be forgotten that it 1s not intended, nor has it ever been intended, as extending aid to one who tm fact is guilty, so that he or she may escape just punishment” (1703, Em- phasis supplied). That in considering the credibility of the testi- mony, the jury should “bear in mind that, under the law, every wituess is presumed to intend to speak the truth” (1704). The Court’s emphatic refusal to charge, upon re- quest, that the failure of the defendants to testify 3 The prejudicial effect of these errors was magnified because not one of the petitioners or defendants testified at the trial. The case was a very close one and required jury deliberation of more than six hours. 9 in their own behalf should not be held against them (1725-6), coupled with the belated giving of this charge after six hours of deliberation and shortly before the verdict, at which time it was improperly given as to certain of the petitioners (1736-9). 2 Did the Circuit Court err in sustaining the convic- tions under the Counts of this indictment (mailing counts) in which it was alleged in each count that defendants placed or caused to be placed certain matter in the mails, where the trial court had directly and unequivocally charged the jury that it was not necessary for them to find that any defendant placed or caused to be placed the alleged mate- rial in the mails in order to be found guilty of these very counts (1714)? 3. Did the Circuit Court err in sustaining the convic- tions under the Securities and Exchange Act (Counts 1 and 2) in (a) declining to make a finding as to whether or not the cash deeds referred to in these counts were “securities” under the provisions and purview of the Securities and Ex- change Act; (b) where there was no evidence showing that the mailings actually occurred; (c) where there was no evidence showing that what was said to have been trans- ported by the mails was actually used in connection with the defrauding of any person or in furtherance of the al- leged scheme to defraud; (d) where the indictment and the proof failed to disclose what was contained in the alleged mailings and where the matter was simply described as “deeds”; and (e) where the only proof of mailing within the jurisdictional limit of the Court was attempted to be proved by piling inference upon inference? 4 Did the Circuit Court err in sustaining petitioners’ convictions under Count 4, (a) where the proof disclosed that the transaction involved in this count, so far as peti- 10 tioners’ actions were concerned, was not in furtherance of any scheme to defraud; (b) where, under the Court’s in- structions, the jury was not at liberty to determine wheth- er the acts proved under this count were not in furtherance of the general scheme (1209-10, 1701-2, 1706, 1708, and 1710); and (c) where the only mailing involved was the transmission, for payment, by a New Orleans bank of a check deposited for collection by petitioner Diaz, to the bank upon which it was drawn in Pensacola, Florida. 5. Did the Cireuit Court err in sustaining the convic- tion under Count 5, where (a) the proof was vague and in- definite; (b) where the matter allegedly mailed was a deed sent to a grantee by the recording officer after it had been recorded; (c) where the alleged mailing was not described as being part of the scheme to defraud set forth in the in- dictment; and (d) where such mailing was not in further- ance of the scheme to defraud? 6. Did the Cireuit Court err in sustaining the convic- tions under an indictment charging a single comprehen- sive scheme or conspiracy, when the proof tended to indi- cate that there existed more than eight separate and dis- tinct conspiracies? Reasons for Allowance of the Writ 1. The decision of the Cireuit Court sustains convictions under a charge to the jury which denied due process of law to the petitioners, or at least constituted such funda- mental error that it must not be permitted to stand. 2. The doctrine of presumption of innocence enunciated in the trial court’s instructions is in direct conflict with 11 Coffin v. United States, 156 U. S. 482, 456-461; Cochran v. United States, 157 U. S. 286; Kirby v. United States, 174 U. S. 47, 55. 3. The first refusal of the trial court to give a properly requested charge on the effect of the failure of the defen- dants to testify in their own behalf was directly contrary to this Court’s holding in Bruno v. United States, 308 U. S. 987. The belated effort to correct this error still failed to give effect to this Court’s holding in the Bruno case. 4, The trial court’s charge that defendants may be guilty of mailing counts without themselves mailing or causing the mailing of the material in question, confuses an impor- tant proposition of federal criminal law, and is in conflict with the holding of the Second Circuit in United States v. Cohen, et al., 145 Fed. (2d) 182, 190, cert. denied, 323 U. 8. 793; and the Third Circuit in ’'reeman y. United States, 20 Fed. (2d) 748, 750. 5. The decision of the Circuit Court is untenable and in conflict with the decisions of this Court and uniform au- thority when it sustains a conviction of using the mails to defraud where the only proof of mailing depends upon drawing inferences from inferences. Ross v. United States, 92 U. S. 281; Brady v. United States, 24 Fed. (2d) 399, 403; Davis v. United States, 63 Fed. (2d) 545, 546; Freeman v. United States, 20 Fed. (2d) 748, 750. 6. The refusal of the Circuit Court to determine wheth- er “cash deeds” under the proof of this case are “securities” under the Securities and Exchange Act (2399) deprives petitioners of an intermediate decision on a most novel and important question of criminal law. It was the duty of the Cireuit Court to decide this question. The question itself eT CORTE TR EL MIT ETO TNT MET IRY Hr SBR EE INOS i PO 12 is important and ought to be decided by this Court, or, in the alternative, should be remanded to the Circuit Court with instructions to decide it. Gerdes v. Lustgarten, 266 U. S. 321, 327; Lutcher & M. Lumber Company v. Knight, 217 U. S. 257, 268. 7. The decision of the Circuit Court sustains convic- tions under a charge which rendered petitioners liable for the acts of others when such acts were not within the scope of general conspiracy allegedly proved. 8. The decision of the Circuit Court appears to conflict with Kotteakos, et al. v. United States, U.S. , 90 Law Ed. 1178. 9, The rejection by the Cireuit Court of Appeals (with- out discussion) of the claim that the alleged mailings un- der Counts 4 and 5 were not a part of the execution of the scheme to defraud is in conflict with the decision of this Court in Kamn y. United States, 323 U.S. 88. WueErerorE, petitioners respectfully pray that a Writ of Certiorari be issued out of and under the seal of this Hon- orable Court directed to the Circuit Court of Appeals for the Fifth Circuit, commanding that Court to certify and to send to this Court for its review and determination on a day certain to be therein named, a full and complete transcript of the proceedings of said Court herein, being the case numbered 10,984 and entitled in its docket as “Mil- lard C. Baker, Nathan Silverman, Isadore Walter Kahn, Benjamin L. Levy, A. M. Safir, William B. Bird, Rubein Johnson, Emannel M. Burgin and Gabriel Diaz, Appel- lants, versus United States of America, Appellee,” and that the judgment of said Court be reviewed by this Court, and for such other relief as to this Court may seem proper. aes 13 Dated, September 9th, 1946. Miuiarp C. Baker IsaporE WALTER Kann Benzamin L. Levy A. M. Sarr At Wu B. Birp GaprieL Diaz EmaANnveEL M. Buren By Henry G. Srycer Attorney for Petitioners 7 16 Court Street Brooklyn 2, New York Harry SI.ver, of Brooklyn, New York Tomas EK. Furtow G. Ray Gru } Wii CO, OrcHarp Hvexu M, Wi-Krs0on Joun D, LampBrrt Huon M. Witkrnson, Jr. Samue. A, Tennant, ? all of New Orleans, Louisiana, With him on the Petition. I hereby certify that in my judgment the foregoing peti- tion is well founded and that it is not interposed for delay. Dated, September 9th, 1946. Henry G. Srncer Attorney for Petitioners | and a Member of the Bar of this Court ] 16 Court Street Brooklyn 2, New York = M > | Tl Sect Fit IN THE preme Court of the Anited States Ocroper Term, 1946 No. ~~ LarD C. Baker, [saporE WaLTER Kann, Bensamin L. evy, A. M. Sarin, Wixi B. Birp, Gasriet Diaz 1d Emanvet M. Buren, Petitioners, —against— Unrrep States or AMERICA. <> BRIEF IN SUPPORT OF PETITION Statutes Involved Federal Statutes involved are Title 15 U. S. Code, n 77(b and q), (Securities and Exchange Act), and 18, U. S. Code, Section 338 (Mail Fraud Statute). Statement of Facts The Indictment indictment contains seven counts. Counts 1, 2 and ‘ge Securities and Exchange Act violations. Count 1 bes a scheme to defraud allegedly adopted by defen- and then states that “the defendants * * * did know- * * * in the sale of a security, to wit, a cash deed 2mploy said scheme and artifice by use of the United 2 States mails * * *” (19). The mailing is identified as a letter “that the defendants, on or about March 10, 1941, placed or caused to be placed in the United States Post Office at New Orleans, Louisiana, * * * ”, written by peti- tioner Baker to the Deposit Guaranty Bank at Jackson, Mis- sissippi. The letter refers to an enclosure of a deed ex- ecuted by the Plaquemines Land Co. in favor of defendant Silverman, and directs the bank to deliver the deed to Sil- verman upon his paying the consideration of $112.50 plus handling charges (19-20). Count 2 incorporates the alleged scheme to defraud de- scribed in Count 1, by reference, and again alleges that in the “sale of a security, to wit, a cash deed” by use of the United States mails, the defendants employed said scheme (20). The mailing identified in this count is another letter from petitioner Baker to the same bank referring to an en- closure of a deed executed by the land company to Silverman and directing its delivery upon receipt from Silverman of the consideration of $55. This second letter the defendants are alleged to have deposited on or about March 12, 1941, in the New Orleans Post Office (21). Counts 4, 5, 6 and 7 are Mail Fraud counts. Count 4 again refers to Count 1 for a description of the | scheme to defraud, and proceeds to allege that “for the purpose of executing same * * * on or about July 27, 1940”, the defendants did “place or caused to be placed” in the New Orleans post office, “a certain check enclosed in a post- | paid envelope addressed to the Citizens Bank, Pensacola, | Florida” (28). The check was mage by Mrs. M. E. Fowler, payable to petitioner Diaz in the sum of $1395, and was endorsed on the reverse side, 16 “Gabriel Diaz Pay to the order of Any Bank, Banker, or Trust Co. 17 All prior endorsements guaranteed. June 27, 1940. American Bank & Trust Co. 14-80 New Orleans La. 14-60” (29). Count 5 again refers to Count 1, for a description of the scheme to defraud, and goes on to state that “for the pur- pose of executing same, * * * on or about April 15, 1941,” the defendants placed or caused to be placed in the Post Office at Pointe-a-la-Hache, Louisiana, a certain cash deed, en- closed in a postpaid envelope, addressed to Miss Lorena Duling, in Jackson, Mississippi (29-33).* Counts 6 and 7 were dismissed upon motion of the Gov- ernment (1678). The Court directed a verdict on Count 3 (1685). The Evidence In order to properly evaluate testimony which can be specifically allocated to Counts 1, 2, 4 and 5, it will be neces- sary to discuss the general pattern of the evidence. At the outset, we press the contention that all of this gen- eral testimony should not have been admitted as against all the defendants under the “one scheme theory” and that it was error to overrule the many objections raised on this subject. So, too, do we maintain that there was no relation- ship between the so-called general pattern of the case and the acts relating to the specific counts sufficient to form a basis for the government’s claim that the act of one was the act of all. We believe that the evidence establishes, not the existence of one single comprehensive scheme, but, on the contrary, a number of unconnected dealings with many people. True, in each instance, the basic idea was to sell 1 Comparison of the text of the cash deed as given in this count, with the description of property said to be conveyed through the cash deeds referred to in the letters in Count 1 and 2 shows that the deed in Count 5 refers to property different from that in Counts 1 and 2. | IIL LEC LLOE LIOTTA ABE —s 18 land, but the approach, the representations and the manner of sale was different. The financial interests of all of the defendants were diverse and no testimony was offered from which even an inference could be drawn of a direct or con- spiratorial connection. Many years ago, in 1911, M. C. Baker, one of the peti- tioners, organized a corporation for the purpose of buying and selling land. Baker owned the corporation, and no one else involved in the case had anything to do with it. He sold land to some of the petitioners and defendants, but in each instance, as the record clearly shows, they paid for the land. In the event a salesman sold land for Baker, that particular salesman received commission on that sale. (See G-400,? 2263, G-401b, 2265, G-40le, 2266, G-402b, 2267, G-402d, e and f, 2268). When the investigation in this case began, Baker volun- tarily surrendered his books and other documents, and it is obvious from the record that most of the evidence obtained by the government came from these voluntarily surrendered papers. The land so owned by Baker was in St. Bernard Parish and Plaquemines Perish. Sometime in 1935, and an- nually thereafter for several years, Baker, through his com- pany, the Plaquemines Land Co., gave a series of leases to the Gulf Refining Company. In each instance, the lease was for five years and required the payment of annual rent, plus taxes. Thus, the land the Plaquemines Land Co. owned had - prospective value as oil land and was so recognized by one of the largest oil producing companies. In addition, the land had trapping possibilities for fur-bearing animals, and , the Gulf Refining Company itself made leases to fur trap- pers. 2 All Government exhibits are identified by the letter “G” before the ' numbers. 19 Baker sold iand to Diaz, Burgin, Kahn and Safir, and they in turn sold it to others, with Baker having no financial or other interest in the proceeds of any of these sales. Baker’s only interest was to sell the land to anyone who would buy it. Many years after Baker had organized this land company, defendant Kiefer (not tried) and defendant Silverman (tried and convicted) began to operate a brokerage office in New Orleans. They were registered under the Securities and Exchange Act and dealt in the main in oil stocks and royalties. There was no connection between the Kiefer- Silverman firm and Baker’s land company, except that the officers may have known each other. Kiefer-Silverman pur- chased certain specifically designated parcels of land from Baker and, using a technique all of their own, sold this land to a number of persons who testified at the trial. Baker sold the land to Silverman at a specific price. Silverman sold it for anything he could get. Baker was in no way re- sponsible for any sale by Silverman. As a matter of fact, when we discuss the evidence under Counts 1 and 2, it shall be definitely established that Baker dealt with Silverman- Kiefer at arms length, even to the extent of refusing to de- liver a deed until the money had been paid into a neutral bank on sight draft. How Bird’s activities were brought into this case is hard to determine. If anything, Bird’s relationship was with Silverman-Kiefer, and had nothing to do with Baker, Kahn, Diaz, Safir, Levy or Burgin. Here again, if there was any scheme to defraud, in which Bird was involved, and this we seriously doubt, it could only have existed between Kiefer, Silverman and Bird, and could in no way be traced directly or indirectly to the actions of any other petitioner or de- defendant. So, we have these eight or more independent 20 groups of persons,’ all pursuing the same course, and that is of selling certain designated land. The indictment charged a single general comprehensive scheme to defraud, and hundreds of pages of testimony were admitted concern- ing independent acts of petitioners and defendants, just because the indictment was framed in this fashion. This indiscriminate admission of testimony went to the extent of permitting in evidence dealings of Kiefer and Silverman in 1937, dealings of Kahn in 1937 and 1938, and dealings of other defendants during the years between 1936 and 1940, This, in spite of the fact that the four specific mailing counts submitted to the jury concerned incidents which occurred on March 10 and 12, 1941 (Counts 1 and 2), June 27, 1940 (Count 4), and April 15, 1941 (Count 5). Nevertheless, on the theory of the all-comprehensive scheme, all the testimony was lumped together, and every defendant on trial was charged with responsibility for the acts of the others. They were even charged with responsi- bility for the acts of defendants not tried and when they attempted to defend such acts, the Court refused to permit such defense, stating, “It does not lie in the mouth of either defendant to champion the cause of Mr. Kiefer, who is not on trial here today” (1210). Counts 1 and 2 The indictment charged the mailings on March 10 and 12, 1941. These mailings, which we insist were not proven, consisted of two letters by Baker to a Bank at Jackson, Mississippi. The envelopes with the physical indicia of mail- 3 (1) Baker and Diaz; (2) Baker and Kahn; (3) Baker and Safir; (4) Kahn and Levy; (5) Silverman and Kiefer; (6) Silverman, Kiefer and Bird; (7) Baker, Silverman and Kiefer; (8) Baker and Burgin; (9) Johnson, Kiefer and Silverman. Silverman in his application for Certiorari (p. 4) grouping the subject matter by land sales argues that “twenty five” schemes were proven. 21 ing were not offered in evidence. The place of mailing was not established. The court took it upon itself to say that be- cause both these letters were ou stationery which bore the heading of M. C. Baker, New Orleans, Louisiana, this fact alone was sufficient upon which the jury could draw the in- ference that the letters were mailed from New Orleans— where the Court and Grand Jury had jurisdiction (463). The officer of the bank in Jackson, Mississippi, who testified concerning these letters, based his testimony on general business custom of his bank (457). Both letters were almost identical. Each letter stated that it accompanied a deed (never offered in evidence and described only as a “cash deed”) which the payment of a sight draft for a specific amount in each case. The officer of the bank did not identify Silverman as being the person to whom a deed was delivered or who paid a draft. He simply said that a deed was de- livered and the draft paid. As to the second letter, the deed and the draft were returned (451, G-144A). The attempted connection between the petitioners and this count arose from testimony to the effect that Silver- man had sold certain land to a Miss Duling who lived in Jackson, Mississippi. There was no proof that the land mentioned and described in the deed from Baker to Silver- man was the same land that Silverman sold to Miss Duling. In fact, Miss Duling’s testimony was clearly to the effect that she had never heard of Baker, knew nothing about him or any of the other petitioners at this time, and that all of her dealings were only with Silverman and perhaps Kiefer. The indictment under these two counts charged 4 We believe that the Circuit Court was inadvertently misled by the government’s brief where at page 75, the United States attorney makes what we believe to be an erroneous claim that Silverman “actually sold the par- ticular land which was contained in the deeds enclosed in the letters to Miss Lorena Duling of Jackson, Mississippi (R. 923; G-75, R. 1861-1863; G-76, R. 1864)”. However, an examination of G-75 discloses that the property con- 22 a violation of the Securities and Exchange Act and de- scribed the two deeds as “securities” under said Act. Without the deeds in evidence, it is obvious that there was no proof that what accompanied these two letters were in fact “securities.” We make this statement without waiver of our subsequent argument that “cash” deeds were not and could not have been securities within the meaning and purview of the Securities and Exchange Act. It follows therefore that guilt under Counts 1 and 2 was not estab- lished, because: (a) there was no proof of mailing, (b) there was no proof where mailing occurred, (c) the “securities” were not identified or proper secondary evidence offered, and (d) “cash” deeds are not “securities” under the Securi- ties and Exchange Act. Count 4 This count charged a mailing on June 27, 1940. The testimony offered to support the count came from three sources. A bank officer of the American Bank & Trust Company, at New Orleans, Louisiana, who testified that around June 27, 1940, petitioner Diaz deposited a check in the sum of $1395 for collection in his bank, made by Mrs. M. E. Fowler on the Citizens Bank, of Pensacola, Flor- ida (28-9, 1027, G-323, 2155). This check was forwarded to the Pensacola bank for payment, and the officer of the Pensacola bank testified that the check was received and paid. Here again, the envelope with the physical indicia of the use of the mails was not offered in evidence, and proof of mailing could only be found from vague inferences veyed to Miss Duling was that which was acquired by the vendor (Silverman) under deed “with even date herewith” (1862). The date of the deed G-75 is April 15, 1941, while the letters which accompanied the deed and referred to in Counts 1 and 2 were dated March 10 and 12, 1941, respectively. The deeds mentioned in these letters were never offered in evidence and were never identi- fied by any witness. Ty — 23 drawn from custom and usage. Mrs. Fowler, the maker of the check, was never called as a witness. Her husband did testify concerning many dealings with Diaz and other petitioners and defendants. At this point, it becomes essential to refer to the general pattern of the case to see the damage done Diaz and the other petitioners by the admission in evidence against them of Fowler’s recitals of his dealings with Silverman. Ap- parently, after Silverman had given Fowler a forged deed, (1213-1216, 1218-1221), Baker attempted to save Fowler from the consequences of this act. Diaz, who had long be- fore bought some land from Baker, also met Fowler. Diaz, on his own account and not in connection with anyone else, and without the use of a single false representation, sold some land to Mrs. Fowler on account of which the check involved in Count 4 was given. After the deed had been delivered, and after the land was recorded in Fowler’s name, and after the transaction was completed, Diaz de- posited the check to his account in the bank in New Orleans. Certainly, a scheme to defraud Fowler, if one existed, was far beyond the completed stage at that point. The rep- resentations, if any had been made, and the article intended to be sold, had not only been sold but actually delivered. Yet, the District Court permitted the jury, nay, compelled the jury to say that the act of Diaz in depositing this check to his own credit in a New Orleans bank was the act of every defendant and petitioner in furtherance of the gen- eral scheme. All this, without the slightest indication from the record by inference or otherwise that any petitioner or other defendant had any interest, financial or otherwise, in this transaction between Diaz and the Fowlers. Thus, the proof fell far short of that required for submission to a jury, because: (a) there was no definite proof of mailing, (b) there was no connection between this mailing and any general scheme to defraud, (c) the mailing came long after 24 the completion of the transaction (Kann v. United States, 323 U.S. 88), (d) there was no proof that the alleged mat- ter was mailed by the defendants or caused by them to be mailed, and (e) no false representations were made by Diaz. In fact, Fowler, at the very time of the trial, believed that Baker had been absolutely fair with him (1334). Count 5 The mailing in Count 5 was said to have taken place on April 15, 1941. A deed was recorded in the office of the recording agent at Point-a-la~-Hache, Louisiana, with Miss Duling of Jackson, Mississippi, as grantee. After record- ing, the deed was returned through the mails to Miss Duling (G.-74, 1861). The claim of these petitioners with respect to Count 5 transcends any question of lack of proof of mailing. First, the general scheme to defraud set forth in the indictment fails to allege that the return of a deed by a recording officer was part of the so-called scheme. Second, the transaction which resulted in the giving of this deed and its recording was one between Silverman, Kiefer and Miss Duling, in which none of the other peti- tioners had the slightest interest, financial or otherwise. Third, the deed itself is entirely different from any deed given to any other purchaser by any petitioner or defendant, Silverman describes himself as the grantor and the deed is executed by him and not by the land company. It cannot be overlooked that Miss Duling said that her transaction with Safir was long before and was “a fair and square sale” (936). She went on to say, further, that she had never met or had any dealings with Kahn, Levy, Bird, or the defendant Burgin (943-5). Where the defendant Johnson was con- cerned, Miss Duling was entirely satisfied with her dealings with him; they involved the drilling of a well in Texas, which had actually taken place (945-946). 25 Miss Duling’s memory was very bad. In fact, she ad- mitted that she had been in an accident long after the occurrences and before the trial, and that she had “knocked my brains out, almost * * * and there are some little things that sometimes I just don’t remember” (940). It is clear that there was not sufficient evidence as a matter of law to warrant the submission of this case to the jury or to sustain the conviction once had, because: (a) the transaction involved was completely separate and apart from the general scheme set forth in the indictment, (b) the mailing itself was not within the scope of the scheme alleged in the indictment, (c) the return of the deed by the recorder could in no way tend to further a general scheme to de- fraud, and (d) the return of the deed was long after the transaction between Silverman and Duling had been com- pleted, and was not an integral part of the alleged scheme to defraud. 26 ARGUMENT I The trial court deprived the defendants of a fair trial in accordance with constitutional concepts by instructing the jury, “but this presumption of inno- cence will avail the defendants no further, so soon as brima facie evidence of the truth of the charges laid against them in the indictment is presented to the jury. That prima facie evidence, if it satisfies the jury be- yond a reasonable doubt of the guilt of the defendants, bars the presumption of innocence, because the pre- sumption is no evidence at all, and plays its part only so long as there is absence of legal evidence as to the particular fact to be established” (1703). Coffin v. United States, 156 U. S. 482, 456-461; Cochran v. United States, 157 U. S. 286 ; Kirby v. United States, 174 U.S. 47, 55. A The trial court’s admonition to the jury that the “pre- sumption of innocence is no evidence at all” is in direct con- tradiction to this Court’s determination in Coffin v. United States, 156 U.S. 432, 458, 461, and Cochran v. United States, 157 U. S. 286, 299, 300, a conclusion from which this Court has never receded. The trial court’s concomitant charge that “ * * * this pre- sumption will avail the defendants no further so soon as prima facie evidence of the truth of the charges laid against them * * * is presented to the jury * * * and plays its part only so long as there is absence of legal evidence as to the particular fact to be established”, is indeed an enormity — 27 which achieves the confiscation of defendants’ constitutional rights to a fair trial. It cannot be effaced. Transcending the merely procedural, this constitutional heresay requires no objection of counsel for review by this Court (Bras field v. United States, 272 U. S. 448, 450). The verdict of a jury reached under the auspices of such a charge, necessarily, loses its sanction, since the wellspring of the jury’s judg- ment has been polluted. When the trial court stated that the presumption of inno- cence is not evidence, it was not acting the precisionist, re- jecting the word “evidence” in favor of alternative expres- sions such as “instrument of proof” (Coffin v. United States, 156 U. S. 482, 459; Kirby v. United States, 174 U.S. 47, 55), or “nature of evidence” (Dodson v. Umited States, 23 Fed. (2d) 401, 402). The narrow area of controversy that has arisen as to whether the presumption of innocence is evidence, or, more accurately, “in the nature of evidence”, or an “instrument of proof”, abates the gravamen of the court’s prejudicial error not in the slightest. The trial court, instead of either instructing the court that the presumption of innocence is evidence, or of sub- stantially embodying the preposition in other language, such as “that the presumption of innocence remains with the defendant until the jury are ‘satisfied of the guilt be- yond a reasonable doubt’” (Agnew v. United States, 165 U. S. 36, 51, 56; see also Coffin v. United States, 156 U.S. 432, 459),° rejects this Court’s concept of the presumption of innocence in its entirety and foists upon the jury the absurd nullificatory doctrine that the presumption of inno- cence plays its part only so long as there is absence of legal evidence as to the particular fact to be determined, and will 5 The Court, in the Coffin case, states, “The usual formula in which this doctrine is expressed is that every man is presumed to be innocent until his guilt is proven beyord a reasonable doubt.” —— 28 avail the defendants no further so soon as prima facie evi- dence of the truth of the charges laid against them, is pre- sented to the jury. This Court, adopting the language of Wills on Cireum- stantial Evidence, stated in Coffin v. United States (156 U. S. at p. 459), that the “presumption must prevail until it is destroyed by such an overpowering amount of legal evidence of guilt as is calculated to produce the opposite belief.” Adopting an extreme opposite view, the trial court ef- fectively instructed the jury that as far as they were con- cerned, the presumption of innocence did not exist at all; that it was something that ceased to operate as soon as they began to function in the jury room. The very fact that they were given the case to consider, the jury was ad- vised, established as law, that legal evidence had been produced which was “sufficiently substantial” (1705). This selfsame fact withdrew the presumption of innocence from their deliberations and rendered it inoperative. It could not be taken into the jury room! Aggravating immeasurably the damages to defendants wrought by the trial court’s exclusion of the beneficient pre- sumption of innocence from the jury’s deliberations was the ironical fact that the trial court took pains to inject a “presumption” most malignant to defendants’ cause into their deliberations. In this case in which the only witnesses were government witnesses, the trial court saw fit to in- struct the jury, “However, you will bear in mind that, un- der the law, every witness is presumed to speak the truth” (1704). 29 Thus, while the jury was admonished that the presump- tion of innocence “will avail the defendants no further so soon as prima facie evidence of the truth of the charges is laid against them,” the presumption that every govern- ment witness intends to speak the truth was not of like evanescent character. The latter “presumption” was indeed evidentiary in nature, since the weighing of evidence, the evaluation of discrediting circumstances of bias and pre)- udice, was to be undertaken and pursued, under sway of the “presumption” that every government witness intends to tell the truth! That it was grievous error, in any event, to instruct the jury that their deliberations respecting credibility and bias were to be influenced by this “presumption” that the wit- ness is truthful, we discuss below (under III, infra). At this juncture, however, we desire to emphasize (1) that the giving of the instruction that every witness is presumed to intend to spea* the truth, meaning every gov- ernment witness, and (2) the handicapping of the jury’s right to judge credibility and bias for themselves on scales free to record their findings, by assigning ubiquitous in- fluence to the “presumption”, all this, rendered it all the more urgent that the court refrain from emasculating the presumption of innocence, and concomitantly multiplied the resultant harm, when the court did nullify the presump- tion of innocence. Cc The Court’s instruction that the presumption of inno- cence was not evidence registered damage to the defen- dant’s every time the court instructed the jury that it was the evidence that they were to consider (1704) and solely the evidence (1717). This pervasive and consequential ele- — ~— — 30 ment of damages resulting from a charge that the presump- tion of innocence is not evidence is duly noted by this Court in Coffin v. United States (156 U. S. 432, 4) which stated, “t 0 — tT) , om, yo = : ™e Vout ; 2 j f a acta t wee too . tw ¥v - a oy 19 1945 CNATLIS S: cons “TI ey IN THE 4 Supreme Court of the United States OctoBer TERM, 1946 No. 484 (hgSO Be oa Mutuarp C. Baker, IsaporE Water ie BeNJamin L. Levy, A. M. Sarin, Witiiam B. Birp, Gasriet Diaz and Emanvet M. Burern, Petitwoners, —against— Unitep States or AMERICA. PETITION AND BRIEF ON APPLICATION FOR REHEARING Henry G. SINGER Hvueu M. WILkinson Joun D. LAMBERT Hucx M. WiLkrinson, Jr. Samve.L A. TENNANT, all of New Orleans, Louisiana, Attorney for Petitioners H 16 Court Street e Brooklyn 2, New York M3 Harry Si.ver, i of Brooklyn, NewYork £ Tuomas KE. Furtow ; G. Ray Gri : WituiaM C. OrcHARD . b With him on the Brief INDEX PAGE Table of Cases Cited: Bolienbach v. United States, 327 U.S. , 90 L. ee ee oc cck ccveckceuasehucks bawkeeekesadeanes 6 Brasfield v. United States, 272 U. S. 448 ........-- 6 Campbell River Mills Co. v. Chicago, ete., Co., 42 F. ). &, Seereererrrerrrerre crate tr tr 2 Cochran v. United States, 157 U.S. 286 ............ 2 Coffin v. United States, 156 U. S. 423, 496-461 ...... 2, 3,6 Dodson v. United States, C. C. A. 23 F. 2d 401, 402 .. 4 Kotteakos v. United States, U.S. , 90 L. ee ME ity eas Genuduekchecasuuneeeesas 66s 6 Miklencie v. United States, 62 F. 2d 1044 .......... 3 Other Authorities: Petition and Brief on Application for Rehearing .. 1 Mail Fraud Act (18 U. S. C. 388) ............008. 1 Securities Exchange Act (15 U.S. C. 77q) ......... 1 Rule 38, Subdivision 5 of the Revised Rules of the Bapreme Court ......cccccccccenscccctccnscens 2 IN THE Supreme Court of the United States Ocroser TERM, 1946 No. 484 i Miuttarp C. Baker, Isapork Watter Kaun, Bensamin L. Levy, A. M. Sarin, Wiitiam B. Binp, Gasriet Diaz and EmanvusEL M. Burern, Petitioners, —against— Unritrep States oF AMERICA. — PETITION AND BRIEF ON APPLICATION FOR REHEARING To tHe HonoraBLe, THE CHIEF JUSTICE AND THE ASSOCIATE JusticEs oF THE SUPREME Court OF THE UNITED StaTEs: Your petitioners respectfully pray this Court to recon- sider its determination made on October 28th, 1946, which denied their petition for writs of certiorari to the United States Cireuit Court of Appeals for the Fifth Circuit to review judgments of conviction under the Mail Fraud Act (18 U. S. C. 338) and mail counts under the Securities and Exchange Act (15 U. S. C. 77q). Your petitioners respectfully submit that special and important reasons for the granting of the writ of certiorari subsist in this cause, and that the denial of certiorari here- in, in the face of these considerations, unsettles federal criminal law at its very monuments and leaves not only a your petitioners bereft of the bare essentials of a fair trial but foreshadows a like fate for all accused and brought to trial in our courts. Where special and important reasons call for this Court’s exertion of its power of supervision within the scope of Rule 38, Subdivision 5, of the Revised Rules of the Supreme Court, and this Court nevertheless denies certiorari, the courts are prone to invest such denial with the significance of this Court’s sanction of the procedure, practices and determinations which are questioned by the petitioners (Campbell River Mills Co. v. Chicago, etc., Co., 42 F. 2d 775, 778). The following questions therefore thrust themselves upon our attention: 2 1. Does this Court intend to overrule Coffin v. United States, 156 U. S. 432, 456-461; and Cochran v. United States, 157 U. S. 286, in their holding that the jury may consider the presumption of innocence along with the evidence in the case in determining guilt or innocence? ) 2. Does this Court itself declare “that, under the law, every witness is presumed to intend to speak the truth” and that such instruction to the jury may be given by a trial judge in a case in which the only witnesses are the ) government’s witnesses? 3. Does this Court acquiesce in and give sanction to the instruction that the jury need not determine that defen- dants either mailed or caused to be mailed any mailable matter in order to be guilty of crime under mailing counts in an indictment? 4. Where such matters involving the fairness and in- tegrity of judicial proceedings, and the standards whereby | guilt and innocence are to be determined are in issue, does this Court intend to hold that either the inadvertence of counsel in particularizing objection, or this Court’s own view of the defendant’s lack of innocence can serve to allay the affront to the integrity of the judicial process itself? The trial court did assume a position diametrically op- posed to that of this Court in Coffin v. United States, 156 U. 8. 432, 456-461. What could be clearer rejection of the doctrine of the Coffin case than this language of the trial court: “But this presumption of innocence will avail the de- fendants no further so soon as prima facie evidence of the charges laid against them in the indictment is presented to the jury * * * because the presumption is no evidence at all, and plays its part only so long as there is absence of legal evidence as to the particular fact to be established” (1703). This Court has never overruled its condemnation of such an instruction. In Miklencic v. United States, 62 F. 2d 1044, the Cireuit Court of Appeals for the Third Circuit reads this Court’s sequence of decisions on this subject thus: “In order properly to bring about the procedural consequences of such a presumption (Wigmore on Evidence (2d Ed.) Sec. 2491) the jury must be told about it, and how to handle it, namely, they should begin with the presumption that the defendant, although accused, is innocent, Holt v. United States, 218 U. S. 245, 253; then consider the presumption along with the evidence in the case, Allen v. United States, 164 U. S. 492, 501; and finally that it stands in favor of 4 the accused until such time as they shall find beyond a rea- sonable doubt it has been overcome by evidence to the contrary. Coffin v. United States, 156 U. S. 432, 459, 460; Agnew v. United States, 165 U. S. 36, 51; Holt v. United States, supra; Dodson v. United States (C. C. A. 23 F. 2d 401, 402).” (Emphasis supplied.) This Court’s views are emphatically and explicitly sum- marized in Dodson v. United States, 23 F. 2d 401, 402, by the Circuit Court of Appeals for the Fourth Circuit: “(1) The presumption of innocence, which from time immemorial the law has thrown around a person ac- cused of crime, means more than merely that the jury shall go into the trial with a belief that the accused is probably innocent. It is a presumption of law which must be weighed by the jury along with the evidence in the case in arriving at their verdict. Coffin v. U.S., 156 U. S. 432, 15 S. Ct. 394, L. Ed. 481; Wolf v. U.S. (C. C. A. 4th) 238 F. 902; Hyde v. U.S. (C. C. A. 4th) 15 F. (2d) 816; Wharton’s Crim. Evidence (10th Ed.) p. 627; Greenleaf on Evidence (Lewis’ Ed.) par. 34, p. 49; 16 C. J. 535, 983. It is true, as said in Allen v. U. S., 164 U. S. 492, 501, 17 S. Ct. 154, 157 (41 L. Ed. 528), that it is ‘driven out of the case’ when the guilt of the accused is established beyond a reasonable doubt; but this does not mean that jurors may ignore it when coming to consider their verdict at the conclusion of the case.” (Emphasis supplied.) The trial court herein, however, admonished the jury that they must indeed ignore the presumption of innocence when coming to consider their verdict. (See our main argu- ment, pages 26 to 30 of Petition and Brief for Certiorari.) The Solicitor General confesses that it was error for the Court to instruct the jury “you will bear in mind that under the law, every witness is presumed to speak the truth” in this ease in which the only witnesses are govern- ment witnesses (p. 23 of Solicitor General’s brief). The Solicitor General, however, argues that the error was tempered by the fact that the Court had left to the jury the function of judging the credibility of the witnesses. However, the very gravamen of our complaint is that the jury was not left free to judge such credibility, but were expressly required to do their judging upon scales weighted with this arbitrary presumption. In effect, the Court gave only lip service to the rule that it was for the jury to weigh credibility. Actually, he was directing a verdict against the petitioners, via this “presumption.” (See Petition and Brief for Certiorari, pages 32 to 34.) mi The Solicitor General confesses error in the charge that “it was not necessary for the jury to find that tt was any defendant on trial who has been proved to have ‘placed’ or ‘caused to be placed’ the matter in the mails.” The Solicitor General, indeed, concedes that there might be some merit in petitioner’s position “that the judge committed a very fundamental error in giving this instruction” (p. 27 of Solicitor General’s brief). He contends, however, that the Court’s preceding defini- tion of the phrase “caused to be placed” cured the error. On the contrary, the error is aggravated by the Court’s discussion of the meaning of “caused to be placed” for 6 the Court explored the relatively broad meaning of the language, and thereby accorded an equally broad meaning to the effect of the erroneous charge. The error is squarely presented for review by this Court. (See Petition and Brief for Certiorari, pages 36-37.) IV Petitioners’ counsel at the trial never affirmatively waived any rights. Their actions never qualified for char- acterization as anything more than simple inadvertence. At page 1724 of the Record, the Court was correcting a phase of its charge which had left the impression that defendants must offer evidence upon their own behalf. It was this correction which counsel for one of the petitioners accepted (1724). The purported correction deals not at all with the pre- sumption of innocence (see Coffin v. United States, 156 U. S. 432, 460) and hence no affirmative waiver appears in the ease. There remains only the fact that this Court, out of regard for the integrity of the administration of criminal justice, should not refuse to grant certiorari either in consequence of petitioners’ counsel’s inadvertence in noting objections (Brasfield v. United States, 272 U.S. 448) or this Court’s own views as to the guilt of the petitioners. The length of time spent by the jury in deliberating the case indicates that the triers of the facts were assigning weight and substance to the elements of defense of at least certain of the defendants. Under such circumstances, this Court is not warranted in denying certiorari. (Bollenbach v. United States, 327 U.S. , 90 L. Ed. 318, and Kotteakos v. United States, U.S. , 90 L. Ed. 1178.) CONCLUSION Petitioners respectfully urge this Court to rescind the determination made on October 28, 1946, denying their petition for a writ of certiorari and that it grant such writ to the United States Circuit Court of Appeals for the Fifth Cireuit to review the convictions herein. Respectfully submitted, Henry G. Sincer Attorney for Petitioners 16 Court Street Brooklyn 2, New York Harry SILveEs, of Brooklyn, NewYork Tuomas E. FurnLow G. Ray Gui Wu C. OrcHaRD Hues M. WiLkKrnson Joun D. LaMBEBT Huan M. Wrixrxson, JB. Samue. A. TENNANT, all of New Orleans, Louisiana, With him on the Brief --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0792%3A1. Public record. Not legal advice.