# brief in Support of Petition — Freeman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1038%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** brief in Support of Petition - **Published:** January 1, 1947 - **Citation:** 331 U.S. 805 ## Text - 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1038%3A2. Public record. Not legal advice.