brief in Support of Petition — Freeman v. United States

-

The opinion of the court below

Jurisdiction

SUBJECT INDEX

Statement of the case

Specification of errors

Argument

Summary of argument

Point

Point

Point

Point

Point

Point

Point

Point

1—The circuit court erred in holding that the indictment

and counts 1, 6, 7, 8, 11 and 12 charged offenses against

the laws of the United States

2—The circuit court erred in holding that the trial court’s

definition of proof beyond a reasonable doubt was not

error

3—The circuit court erred in holding that there was no

prejudice to petitioner by the trial court’s failure to de-

fine the term “wilful” in its instructions to the jury........

4—The Circuit court erred in holding that the trial court

adequately defined the legal elements involved and the

factual elements the jury must find to exist before the

jury could apply the facts to the law and find petitioner

guilty

5—The circuit court erred in sustaining the convictions on

counts 14, 15 and 16 of the information

6—The circuit court erred in failing to instruct that the

prosecution must prove that at least one of the overt

acts charged in the indictment as being committed in

the Eastern District of Washington was committed as

alleged ..............

7—The circuit court erred in instructing that the knowl-

edge of Michael could be imputed to petitioner................

8—The circuit court erred in holding that petitioner suf-

fered no prejudice by the trial court’s failure to instruct

the jury to disregard the argument of the United States

Attorney that the plea of guilty by Jacobs to the con-

spiracy tended to prove a conspiracy between Jacobs

and petitioner

34

42

42

43

SUBJECT INDEX

Point 9—The circuit court erred in holding that the trial court’s

admission of plaintiff's Exhibit 62 did not prejudice peti-

tioner

Point 10—The circuit court erred in holding that petitioner suf-

fered no prejudice from the admission of the impeach-

ing testimony of Louis E. Michael

Point 11—The circuit court erred in ruling that there were no

errors in the case which substantially prejudiced peti-

tioner

TABLE OF AUTHORITIES CITED

CASES 3

Pages

Berger v. U.S. 295 U.S. 78 45

Bollenbach v. U. S. 326 U. S. 607....... 34 38

Boykin v. U. S. (CCA 5) 11 F. (2) 484 36

Brown v. Elliott 225 U. S. 392 34

Corson v. U. S. (CCA 9) 147 F. (2) 487 41

Egan v. U.S. (CCA DC) 287 Fed. 958 47

Fisher v. U. S. (Decided June 10, 1946, No. 122) 34

Foster v. U. S. (CCA 9) 253 Fed. 481 36

Freeman v. U.S. (CCA 3) 20 F. (2) 748 44

Garber v. New York City Ry. Co. 92 N. Y. S. 722 46

Gebardi v. U. S. 287 U. S. 112 35

Gordon v. Thomas (CCA DC) 70 F. (2) 752 46

Gordon v. U.S. (CCA DC) 289 Fed. 552..00...0.....ccesccsscseecceecoseecsecessecsosessseece 46

<ettenbach v. U. S. (CCA 9) 202 Fed. 377 34, 45

Lilienthal’s Tobacco v. U. S. 97 U. S. 287........ 37

Luse v. U.S. (CCA 9) 49 F. (2) 241... 46

Morris v. U. S. (CCA 9) 156 F. (2) 525 41

Nash v. U. S. 229 U. S. 373 43

N. Y. Central Ry. Co. v. Johnson 279 U.S. 810 ....cccccccceccecceeecsesseecsesoseeoseeos-. 45

Owens v. U.S. (CCA 9) 130 Fed. 279..... i ae 37

Pettine v. Territory of New Mexico (CCA 8) 201 Fed. 489... 37

Pierce v. U. S. (CCA 6) 86 F. (2) 949 41. 45

Quercia Vv. U. S. 289 U.S. 466... cccccccsceccsseeseee ‘aie 34

Screws v, U.S. 826 U.S. 91.0.0... cceccccceseeeee 34, 38

Starr v. U. &. 168 VU. B Olé... 34

OI Wi TB Ths Ri Gh Se cecenssnvnstaitenscinrshsdiclcietinaielidak bike as aed 38

U.S. v. Armstrong (DC Ind.) 265 Fed. 688.000.0000... ccccccccccccesseess 35

U.S. v. Crummer (CCA 10) 151 F. (2) 958......cccccccccccccsccsssccseccsccscoceoeeosees 36

We Ba DU li Os Mie ercecvctsnnicdacseplingaicenspilateaiea icant cada ol a Ne 35

U.S. v. New York Cent. & H. R. R. Co. (CC) 146 Fed. 298.................... 35

U.S. v. Woods (CCA 2) 66 F. (2) 262.000... 37

Viereck v. U. S. 318 U. S. 286............ 45

Vou? v, T.8. (O00 Gh 380. (0) Ob 45

Wietz v. Potter (CC) 32 Fed. 888 44

Williams v. U. S. (CCA 5) 55 F. (2) 226. 44

cna 7 ee ee eee er

STATUTES

A, et i BI Cae accncicentctnniinteenieatiinicnniteinctraitinaiibiicititidtinianeninan 36, 38

EN 38

Sec. 240 of the Judicial Code (Title 28 USCA sec. 347)... 25

MISCELLANEOUS

Federal Rules of Criminal Procedure, Rule 37 (b).............................. 25

Federal Rules of Criminal Procedure, Rule 52 (b) ....................-.......... 34

Sec. 11.7 Revised Ration Order No. 16 (9 F. R. 6756)... 39

Sec. 11.8 Revised Ration Order No. 15 (9 F. R. 6756)... 41

Sec. 20.1 Revised Ration Order No. 16 (9 F. R. 6765)... 35, 36, 38

See, 1364.407 (f) Rev. M. P. R. No. 169 (9 F. R 9617) ........... 36, 42

De ee

BRIEF IN SUPPORT OF PETITION

THE OPINION OF THE COURT BELOW

The opinion of the Circuit Court of Appeals for the

Ninth Cireuit (R. 556-567) being Causes No. 11190-11191

of that court is not yet reported.

JURISDICTION

The jurisdiction of this court is invoked by virtue of

section 240 of the Judicial Code (Title 28 U.S.C.A. sec.

347) and Rule 37(b) of the Federal Rules of Criminal

Procedure.

The opinion and orders of affirmance of the circuit court

were filed December 30, 1946 (R. 556, 566, 567). A petition

for rehearing was denied January 30, 1947 (R. 568).

STATEMENT OF THE CASE

Some time in the early summer of 1944, petitioner Free-

man, who was doing business as a licensed accountant (R.

387), conceived the idea that a restaurant and recreation

center would succeed in Spokane and spoke to Harry C.

Huse about it (R. 186, 187).

Thereafter the defendant Rose and Huse discussed the

proposition (R. 188) which resulted in Rose and Huse en-

tering into a partnership agreement on August 15, 1944

(R. 188, 190; Pl. Ex. 41).

26

This agreement also provided that petitioner should be

the paid managing direetor of the business and devote time

to the financial management of the business (R. 193, Sec-

tion VIII). The agreement also provided that petitioner

was to act as the paid accountant for the firm, and that

checks could be signed by petitioner (R. 194; Sec. X and

X]).

On the same date an agreement between petitioner and

Huse was entered into (R. 200; Pl. Ex. 42) which provides

that in consideration of petitioner advancing Huse $10,000

in connection with the restaurant, Huse agreed to repay

this money, and to first devote all the profits of his share

of the partnership to such repayment. Upon this sum being

fully repaid petitioner then was to receive a one-third share

of Huse’s half interest in the Recreation Center. This sum

was never repaid to petitioner (R. 208, 218).

As managing director of the business petitioner nego-

tiated for the lease for the premises signed by Huse and

Rose (R. 60-78; Pl. Ex. 1), took care of the contracts for

the building construction, took care of the books of the

concern, and through an assistant in his office (R. 386,

422-423) signed checks for disbursements for the enter-

prise, and devoted such little time as he could to the oper-

ation of Huse’s Restaurant (R. 394, 396). Petitioner, as

managing director, had the authority to determine policy

(R. 151, 152), which he exercised.

27

The restaurant opened on December 27, 1944, and lost

money from its inception and until the partnership between

Rose and Huse was dissolved (R. 397). On May 22, 1945

petitioner and Rose became partners in the restaurant.

Petitioner advanced a total of $19,951 toward the enter-

prise, and was still paying on the $10,000 note at the time

of trial (R. 415).

Since petitioner and Rose had no experience in the

restaurant business (R. 383, 394, 396, 410), a man named

Michael, who was formerly with the restaurant section of

the OPA, was employed from December 17, 1944, to March

24, 1945, to run the restaurant, and to take care of the

rationing (R. 122, 123, 143, 395, 396). The ration checks

were all issued by Rose and Michael (R. 125-128, 143).

Petitioner knew nothing about rationing (R. 410, 412,

457, 458). The only connection he had with rationing was

that after Michael left an assistant in petitioner’s office

checked the invoices for the restaurant and made a mech-

anical check of the ration points shown on such invoices

(R. 422, 423).

The ration records were kept at the restaurant (R. 334,

335), and petitioner personally had nothing to do with the

computation of points for the restaurant (R. 425).

In January, 1945, petitioner met Ralph W. Jacobs (a

defendant in the case), who was a camp supervisor for the

ee 2

28

Northern Pacific (R. 356, 357). Petitioner asked him to

help him in the restaurant in view of his experience, and

Jacobs did give petitioner a number of valuable sugges-

tions (R. 357-358, 398) about running a restaurant.

Jacobs pleaded guilty to all charges before the trial,

but had not been sentenced (R. 371).

Jacobs testified that petitioner asked him about buying

meat and shipping it out, after telling Jacobs the restaur-

ant was short on points. Jacobs also testified that he told

petitioner that Jacobs could borrow some ration points

from his North Dakota account, and the restaurant would

have to pay them back in the future, and that petitioner

agreed to pay the points back (R. 358-362). Jacobs said

petitioner gave him $500 in cash for possible purchases

(R. 359), but it was, in fact, a check (R. 399-400; Deft’s

Ex. A) which was charged to Huse’s Restaurant (R. 399).

While Jacobs was in Minneapolis he purchased 4 barrels of

meat from the Crown Meat and Provision Company; later

he purchased another 4 barrels from the same concern and

directed both shipments to go to Huse’s Restaurant (R.

359, 360). Jacobs gave the seller points belonging to Man-

dan Creamery Company of North Dakota (R. 359, 360).

The points were insufficient to cover the merchandise, and

Jacobs told the seller he would send him the points in the

near future (R. 361). Huse’s Restaurant never repaid the

points because OPA seized the records (R. 362). When the

29

restaurant was sold it had 23,374 unused ration points on

hand (R. 468).

The shipments of the 4 barrels each were made on

February 6, 1945, and February 12, 1945 (R. 153, 154)

from Minneapolis, Minnesota, from the Crown Meat and

Provision Company to Huse’s Restaurant in Spokane

(R. 360).

There was a sharp conflict between Jacob’s story and

petitioner’s testimony concerning the conversation rela-

tive to ration points. Petitioner testified there was no con-

versation about points (R. 401, 402) concerning the barrels,

and that he did not know what, if any, points were required

(R. 412, 413). It should be remembered that the only evi-

dence against petitioner to show any wilful violation on

points re the barrel shipments was Jacobs because there

was no testimony of any kind that petitioner ever contacted

or saw the sellers of the produce or any of their agents

or even saw any of the barrels themselves or their con-

tents.

The other transaction upon which the charges are based

is a purchase of meat by Jacobs in Missoula, some forty

quarters. The evidence of this transaction is very clear

that Jacobs told petitioner that the meat he could purchase

in Missoula was point free. Jacobs so testified (R. 363)

twice in the government’s case in chief. When interviewed

by the OPA investigators, petitioner so stated in Jacobs’

30

presence (R. 331, 332), and it was not denied by Jacobs

(R. 337, 412). Petitioner told Rose it was point free beef

(R. 378, 379, 381, 382).

Petitioner also testified that Jacobs told him the meat

was point free (R. 405, 413).

The government sought to show that petitioner was

familiar with rationing by examining petitioner about his

signature on Pl. Ex. 68 (R. 458-461), but it is apparent

from the examination that petitioner knew nothing about

rationing.

All storage charges for all the meat was paid by Huse’s

Restaurant even after the account at the Hazelwood Cold

Storage Company was placed in petitioner’s name for

security purposes (R. 145, 154, 155, 179-186, 416, 417).

All withdrawals of meat from the Hazelwood storage

by Rose was for use in Huse’s Restaurant (R. 135, 154,

324-326). It is clear that all the meat withdrawn by Rose

and Michael was for use in Huse’s Restaurant, and the

government never contended otherwise.

It is also clear from all the evidence that petitioner

never at any time contacted any of the sellers, shippers or

storers of the meat and never even saw it.

While there was much documentary and other evidence

offered by the government, the facts above given are the

essentials of the case.

31

SPECIFICATION OF ERRORS

1. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that the indictment and each of Counts

1, 6, 7, 8, 9, 11 and 12 of the information charged petitioner

with offenses against the laws of the United States.

2. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that the trial court’s definition of proof

beyond a reasonable doubt was not error.

3. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that there was no prejudice to petitioner

by the trial court’s failure to define the term ‘‘wilful’’ in

its instructions to the jury.

4. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that the trial court adequately defined to

the jury all the legal elements involved and the factual

elements the jury must find to exist before the jury could

apply the facts to the law and find petitioner guilty of

the charges.

5. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that there was sufficient evidence to sus-

tain the conviction on Counts 14, 15 and 16.

6. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that the jury was sufficiently instructed

with reference to the proof required concerning the overt

acts alleged in the indictment.

ne

32

7. The Cireuit Court of Appeals for the Ninth Circuit

erred in holding that no substantial rights of petitioner

were violated by the instruction of the court that Michael’s

knowledge of a violation of law could be imputed to peti-

tioner.

8. The Cireuit Court of Appeals for the Ninth Circuit

erred in holding that petitioner was not prejudiced by the

failure of the trial court to instruct the jury to disregard

the argument of the United States Attorney that Jacobs

plea of guilty to the conspiracy charge tended to prove

the conspiracy between petitioner and Jacobs.

9, The Circuit Court of Appeals for the Ninth Cireuit

erred in holding that the admission of plaintiff’s exhibit

62 was not prejudicial to appellant.

10. The Circuit Court of Appeals for the Ninth Circuit

erred in holding that petitioner suffered no substantial

prejudice from the admission of Louis E. Michael’s testi-

mony impeaching petitioner’s testimony.

11. The Cireuit Court of Appeals for the Ninth Circuit

erred in holding that the assigned errors of the trial court

were not so prejudicial as to deprive petitioner of a fair

trial.

aa

ARGUMENT

SUMMARY OF ARGUMENT

Briefly the argument is addressed to why the writ should

be granted and the grounds, broadly speaking, are that

petitioner was not granted a fair trial and that most of the

errors are of a fundamental character going to the roots

of our legal system and are of importance not only to peti-

tioner but to the general administration of justice in that

our historic judicial system of safeguards to defendants

generally must be maintained. We think serious intrusions

on those safeguards are represented in this case.

It should be noted that counsel representing petitioner

here and on the appeal to the cireuit court did not represent

him at the trial.

Trial counsel interposed no demurrer to the indictment

or information nor made any request for a bill of particu-

lars. No challenge to the sufficiency of the government’s

evidence was interposed at the conclusion of the govern-

ment’s case in chief. No motion for directed verdict was

made at the conclusion of the entire case. No requested

instruction on wilful was offered by trial counsel although

one was offered by the government (R. 24) and not given.

Trial counsel did not except to the giving of the instruc-

tions involved or to the failure to give any of the instruc-

tions here in issue. Many of our assignment of errors to

———

ee

Soe NE eT OE

34

the introduction of evidence and the argument of govern-

ment counsel are not supported by exceptions.

In view of the almost complete lack of protection afford-

ed petitioner in the trial we are relying upon the rule that

this court will notice material error though that error was

not challenged.

Rule 52(b), Federal Rules of Criminal Procedure

Fisher v. U. S. (decided by this court June 10, 1946,

No. 122)

Screws v. U. S., 325 U.S. 91, 107.

We also rely upon the rule that a federal judge is not

merely a moderator, but must assure a fair trial and protect

the essential rights of the accused.

Quercia v. U. S., 289 U.S. 466,

Starr v. U. S., 153 U.S. 614.

Bollenbach v. U. S., 326 U. 8. 607.

Kettenbach v. U. S., (CCA 9) 202 Fed. 377, 385.

POINT 1

THE CIRCUIT COURT ERRED IN HOLDING THAT

THE INDICTMENT AND COUNTS 1, 6, 7, 8, 9, 11 and 12

CHARGED OFFENSES AGAINST THE LAWS OF THE

UNITED STATES

The indictment is void because it fails to state where

the conspiracy was formed. It alleges complete ignorance as

to the place and does not even state that that it was form-

ed in the United States. Cf. Brown v. Elliott, 225 U.S. 392.

35

The indictment is void because the offenses allegedly

conspired to be committed involve the mutual co-operation

of the persons charged, and the preliminary agreement

between the parties to commit it is thus not an indictable

conspiracy.

U.S. v. Kate, 271 U. 8. 354.

Gebardi v. U. S., 287 U. S. 112.

This is particularly true since subdivision (i) of section

20.1 of Revised Ration Order No. 16 (9 F.R. 6765), repro-

duced in the appendix hereto, reads as follows:

‘‘No person shall offer, solicit, attempt or agree

to do, or assist in doing any act in violation of this

order.’’ (Italics ours)

This regulation covers conspiracy by its own terms. The

conspiracy thus charged is an agreement to agree to do

acts in violation of unspecified sections of the Ration

Order. To allow the indictment to stand is to countenance

charging a conspiracy to commit a conspiracy which is

not permissible.

U. 8. v. Armstrong (DC Ind.) 265 Fed. 683, 695.

U. S. v. New York Cent. & H. R. R. Co. (CC) 146

Fed. 298, 303.

The primary vice of both the indictment and the counts

of the information in question is that nowhere do these

pleadings point out specific acts based on specific provi-

sceneries rr eee >

36

sions of the regulations. The only regulation pointed out

is section 20.1. Reference to it compels one to read the

entire Ration Order consisting of 54 large pages of three

column fine print to try to find out what is prohibited.

It is plain that a mere reference to the very general

provision of section 20.1 and the statutes involved (50

U.S.C.A. App. sec. 925(b) and sec. 633(5) ), which also

give no warning of the specific acts prohibited, does not

remedy the vagueness and indefiniteness condemned by the

supreme court cases referred to in U. S. v. Crummer,

(C.C.A, 10) 151 F. (2) 958, 962; in Foster v. U. S. (C.C.A.

9) 253 Fed. 481, 483, and in Boykin v. U. S. (C.C.A. 5)

11 F. (2) 484, 485.

The rule that the charge must descend to particulars

applies here with great force since both section 20.1 of the

Revised Ration Order and the statutes are very general in

their terms.

Compare Counts 14, 15 and 16 and sec. 1364.407(f) of

Rev. M.P.R. No. 169 (9 F.R. 9617). There the regulation

referred to specifically describes the required act. Not so

with sec, 20.1 of Revised Ration Order 16. This comparison

makes the point very clear.

POINT 2

THE CIRCUIT COURT ERRED IN HOLDING THAT

THE TRIAL COURT'S DEFINITION OF PROOF BE-

YOND A REASONABLE DOUBT WAS NOT ERROR.

This instruction (R. 478) is so clearly erroneous as to

37

require but little discussion. Lilienthal’s Tobacco v. U. S.,

97 U. 8. 237, 266.

Much less objectionable instructions on the same subject

have been condemned.

Petite v. Territory of New Mexico (C.C.A. 8)

201 Fed. 489. 5:

Owens v. U. 8. (C.C.A. 9) 130 Fed. 279.

U. 8. v. Woods (0.0.A. 2) 66 F. (2) 262.

The circuit court erred in failing to see that other por-

tions of the instruction do not deal with proof but merely

define reasonable doubt, It is the portion dealing with the

proof we think obviously error. The distinction may be nar-

row, but it is vital.

The instruction manifestly deprives petitioner of his

fundamental right to an acquittal if the government fails

to prove the affirmative of the issues involved beyond a

reasonable doubt and shifted the burden to petitioner to

show that there was a doubt based on reason before he

could be acquitted.

This type of instruction has never been passed on by

this court to our knowledge.

We believe that it is so prejudicial to all future defend-

ants as to warrant this court in expressing its views on

the very vital point involved. The very broad approval

38

given it by the circuit court (R. 564-565) makes certain

that lower courts will feel free to use such an instruction

in the future. The rights of many defendants will depend

on this court’s action.

POINT 3

THE CIRCUIT COURT ERRED IN HOLDING THAT

THERE WAS NO PREJUDICE TO PETITIONER BY

THE TRIAL COURT’S FAILURE TO DEFINE THE

TERM “WILFUL” IN ITS INSTRUCTIONS TO THE

JURY.

Wilfulness is the root of all the offenses charged (56

U.S.C.A. App. sec. 925(b) and sec, 633(5) ).

The statutes are general in their terms and do not define

the specific acts prohibited. Section 20.1 of Revised Ration

Order 16 is general and refers to the entire Order which

must be searched to attempt to find what is prohibited.

Under these circumstances the court must clearly define

the term. Equivocation and uncertainty will not do. The

giving of a clear definition of what the term ‘‘wilful’’

means is the only safeguard any defendant has against

being punished for purported offenses which are not defin-

ed by the statutes but which must depend upon the terms

of regulations not in being when the statutes were enacted.

The trial court must clearly define the term.

Screws v. UV. S., 395 U.S. 91.

Bollenbach v. U. S., 326 U. 8S. 607.

Spurr v. U. S., 174 U. S. 728.

39

The circuit court erred in: justifying the omission by

referring to an instruction (R. 479) which did not define

wilful but only told how intent could. be determined. The

distinction is clear—telling how intent ts determinable is

not a@ definition of wilfulness.

The government offered a definition (R. 24) but none

was given.

The prejudice is obvious since the point of wilfulness

was at all times contested by petitioner and-is the crux of

the entire case. We believe that such an essential term

must be made crystal clear to jurors as well as the fact.

that whether the required intent was entertained is the

pivotal issue—the difference between guilt and innocence.

POINT 4

THE CIRCUIT COURT ERRED IN HOLDING THAT

THE TRIAL COURT ADEQUATELY DEFINED THE

LEGAL ELEMENTS INVOLVED AND THB FACTUAL

ELEMENTS THE JURY MUST FIND TO EXIST BE-

FORE THE JURY COULD APPLY THE FACTS TO

THE LAW AND FIND PETITIONER GUILTY.

The court failed to mention the statutes involved and

said that the regulations made transfers unlawful, without

mentioning the essential ingredient of wilfulness (Cf. R.

486, 487, 488). This gave the impression that the mere

doing of the acts was a crime, irrespective of wilfulness.

Likewise the court failed to instruct as to the effect of

section 11.7 of Revised Ration Order 16 (9 F.R. 6756).

— » Dente ee

DOT APOE MS TB

ARERR

A AO tt

40

This regulation is printed in the appendix and has the ef-

fect of allowing rationed foods to be stored and returned

from storage point free.

The evidence clearly shows that appellant was merely

the managing director of Huse’s Restaurant and an em-

ployee (R. 188, 190, Pl. Ex. 41). All meat was purchased

and stored for use in the restaurant (R. 135, 154, 324-326)

and withdrawn by Rose, one of the partners, and by

Michael, a co-employee of petitioner, for use in the res-

taurant (R. 155, 154, 324-326). The government did not at-

tempt to show or urge that petitioner sold any of the meat

to the restaurant.

Yet Counts 6. 7, &, q. 14, lo and if ary irawr nm the

theory that the meat was owned | ett stored for

his own use and that withdra» —

Michael for the use of '

regulations in that ;

tioner by Rose and V

be given by a seller wae

Plainly the jury

regulation which disp

these circumstances

The bearing on Spot

indictment is also clear

theory—unlawfulness of

41

meat from storage without the surrender of points to peti-

tioner.

Neither did the court instruct as to the legal effect of

section 11.8 of Revised Ration Order 16, (9 F.R. 6756)

printed in the appendix. The regulation provides that no

points need be given up for a transfer for security pur-

poses only. The prosecution hit hard and often at peti-

tioner’s instructions to change the storage account from

Huse’s Restaurant to his own name for security reasons,

inferring that it was wrong (R. 170, 416-418, 541-542) al-

though the storage charges were at all times billed to and

paid by Huse’s Restaurant (R. 180, 184). The question of

whether petitioner sought, by the transfer, to defraud

creditors was wholly irrelevant to the issue and should have

been checked by the trial judge. Pierce v. U. §. (C.C.A. 6)

86 F. (2) 949,

In view of these inferences the jury should have had

the benefit of the provisions of this regulation.

Taken as a whole we believe the instructions are subject

to the infirmities condemned in Morris v. U. 8. (C.C.A. 9)

196 F. (2) 525 and Corson v. U. g. (C.C.A. 9) 147 PB. (2)

437.

Where the jury does not have all the legal bases in-

volved, it cannot discharge its historic function of apply-

ing the facts to the law to determine guilt or innocence and

42

the convictions are void because the essential legal stan-

dards were not considered.

POINT 5

THE CIRCUIT COURT ERRED IN SUSTAINING THE

CONVICTIONS ON COUNTS 14, 15 and 16 OF THE

INFORMATION.

These counts involve Rev. M.P.R. No. 169, section

1364.407(f) (9 F.R. 9617).

That regulation, which appears in the appendix, provides

that the prescribed statement must be given by the seller

to the purchaser.

Since there was no evidence that petitioner sold any

meat to Rose, one of the partners for whom petitioner was

working, or to the partnership of Rose and Huse, there

was a complete failure of proof as to these counts.

In any event there is not a scintilla of proof that such

statements, even if required, Were not given by petitioner

to Rose. The record is completely silent on these counts.

The circuit court erred in not reversing as to these

counts.

POINT 6

THE CIRCUIT COURT ERRED IN FAILING TO IN-

STRUCT THAT THE PROSECUTION MUST PROVE

THAT AT LEAST ONE OF THE OVERT ACTS

CHARGED IN THE INDICTMENT AS BEING COM-

MITTED IN THE EASTERN DISTRICT OF WASH-

INGTON WAS COMMITTED AS ALLEGED.

The indictment is unusual in that it contains two separ-

43

ate categories of overt acts—one group charged as: oceur-

ring in Eastern Washington and one group in Montana.

The failure of the court to point out that one of the

Eastern Washington overt. acts must be established as

charged left the jury free to convict on overt acts occurring

in Montana.

The court’s instruction: was that ‘‘some overt act?’ must

be done (R. 483) and ‘‘that at least one or more overt

acts as charged was committed by one or more of them’’

(R. 484). The instructions fail to cover the point of what

overt acts must be established or the degree of proof neces-

sary to establish such required overt act.

We believe the action is in conflict with Nash v. U. 8.,

229 U. S. 373, 379, 380:

‘Thus while it may be admitted that not all of

the means alleged need be proved, the charge in-

vited: the jury to consider all and permitted a ver-

dict upon any one of them.’’

POINT 7

THE CIRCUIT COURT ERRED IN INSTRUCTING

THAT THE KNOWLEDGE OF MICHAEL COULD

BE IMPUTED TO PETITIONER.

The instruction (R. 501) clearly allows Michael’s know-

ledge of a violation of the law to be imputed to petitioner

if the jury considered Michael an accomplice.

We take it as elementary that a basic element of the of-

ren

44

fense cannot be imputed to petitioner where there is no

evidentiary basis therefor.

Freeman v. U. 8. (C.C.A. 3) 20 F. (2) 748.

Williams v. U. S. (C.C.A. 5) 55 F. (2) 226.

Wietz v. Potter (CC) 32 Fed. 888, 889.

The point is important because although Michael was

informed by Jacobs that the Montana seller of the beef

was holding out for points (R. 144) petitioner wasn’t there

when Jacobs told Michael that (R. 145). There is no evi-

dence that Michael, or anyone else, ever communicated that

information to petitioner.

The prejudicial character of the instruction is evident.

POINT 8

THE CIRCUIT COURT ERRED IN HOLDING THAT

PETITIONER SUFFERED NO PREJUDICE BY THE

TRIAL COURT’S FAILURE TO INSTRUCT THE

JURY TO DISREGARD THE ARGUMENT OF THE

UNITED STATES ATTORNEY THAT THE PLEA

OF GUILTY BY JACOBS TO THE CONSPIRACY

TENDED TO PROVE A CONSPIRACY BETWEEN

JACOBS AND PETITIONER.

The argument (R. 523) is a bald statement that because

Jacobs, who had good legal advice and counsel, had plead-

ed guilty to the conspiracy, that Jacobs testimony but-

tressed by such plea, overcame petitioner’s testimony con-

cerning the existence of the conspiracy.

It is elementary that no act or declaration of a co-con-

spirator can bind another co-conspirator after the con-

45

spiracy has ended. Arrest and arraignment certainly ends

‘ the conspiracy. Obviously a plea of guilty by Jacobs is not

binding or admissible to prove petitioner’s guilt as to the

. existence of the conspiracy.

Where the prosecutor hits below the belt ‘it is the duty

of the court to restrain him and to instruct. the jury. to

. disregard his remarks.

Berger v. U. 8., 295 U. S. 78.

Viereck v. U. 8.; 318 U. S. 236, 248.

N. Y. Central Ry. Co. v. Johnson, 279 U.S. 310.

Volkmor v. U. 8. (C.C.A.'6) 13 F. (2) 594.

Pierce v. U. 8. (C.C.A. 6) 86 F. (2) 949.

Kettenbach v. U: 8. (C.C.A. 9) 202 Fed. 377, 385.

The prejudicial character of the incident seems clear.

POINT 9

THE CIRCUIT COURT ERRED IN HOLDING THAT

THE TRIAL COURT’S ADMISSION OF PLAIN.

TIFF’S EXHIBIT 62 DID NOT PREJUDICE PETI-

‘ TIONER.

Exhibit 62 was prepared by’ the witness who testified

‘concerning the whole matter. It was obviously prepared

for trial purposes (R. 294-303). It was addressed to peti-

tioner, although not made at petitioner’s request and the

witness did not see or know petitioner. It was an official

‘ certificate as to the grades of meat said to be involved, al-

though clearly hearsay, and introduced to ‘establish the

‘character of the meat.

POE SOPOT IMT

46

No impeachment was involved—no lack of memory of

the witness was involved. The exhibit was offered and ad-

mitted as independent evidence of the things it purports

to state. This is error of the most flagrant type.

Iuse v. U. 8. (C.C.A. 9) 49 FP. (2) 241.

Garber v. New York City Ry. Co., 92 N.Y.S. 722.

The prejudice is obvious when the exhibit is examined in

the light of its official character (R. 299).

POINT 10

THE CIRCUIT COURT ERRED IN HOLDING THAT

PETITIONER SUFFERED NO PREJUDICE FROM

THE ADMISSION OF THE IMPEACHING TESTI-

MONY OF LOUIS E. MICHAEL.

The question propounded to appellant (R. 436, 437)

related to a time ‘‘a few days before the 1st of February,

1945.’’

The question purporting to impeach petitioner’s testi-

mony put to Michael fixed the time as ‘‘a few days before

March Ist, 1945.’’ an entirely different time by a month.

Since the time was materially different, the objection to

the purported impeachment should have been sustained.

Gordon v. U. 8. (C.C.A. DC) 289 Fed. 552.

Gordon v. Thomas (C.C.A. DC) 70 F. (2) 752.

The matter was important because this was the very

last testimony offered in the entire case and the jury was

— |

47

thus left with the strong impression that petitioner wil-

fully made a false statement under oath.

The prejudice is clear in the setting in which the incident

occurred.

POINT 11

THE CIRCUIT COURT ERRED IN RULING THAT

THERE WERE NO ERRORS IN THE CASE WHICH

SUBSTANTIALLY PREJUDICED PETITIONER.

We believe that the errors here committed and assigned

as error to the circuit court (R. 41) are so numerous and

of such importance that,’dt a-minimum, the case falls with-

in the principle of Egan v. U. 8. (C.C.A. DC) 287 Fed.

958, 971, that:

‘‘While there is perhaps no single instance

involving error so prejudicial as to warrant a re-

versal, we are convinced that, considered as a

whole, the rights of defendant were so prejudiced

thereby as to deprive him of that fair and impar-

tial trial which the constitution and the law of the

land accords to every citizen accused of the com-

mission of a crime.’’

ak Rega SRA CE VEN.

CONCLUSION

It is respectfully submitted that this case is one calling

for the exercise of this court of its supervisory powers by

granting a writ of certiorari and thereafter reviewing

and reversing said decision.

oHN J. KENNETT,

Counsel for Petitioner.

GeraLp D. Hite,

SaMvEL EDELSTEIN,

O. C. Moore,

Of Counsel for Petitioner.