Petition for Writ of Certiorari — Danziger v. United States

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SUBJECT INDEX

Statement of the case

PAGE

Opinion of the court below

Turisdiction

meciicetion GE OPPO Gane cceccecesrecensseeeenn ee

Questions presented

Reasons relied on for allowance of WTit-...........-....cccccecceecceneeeeeeeeeee

YOR Oe ea Cg CE Oe 8

TABLE OF AUTHORITIES CITED

CASES PAGE

Ballard v. United States, 91 L. Ed. 195 17, 20

Brady v. United States, 24 F. (2d) 399 21

Canella v. United States, 15}, &2, 470, Sept. 1946 22

Feder v. United States, 257 Fed. 694. 22

Freeman v. United States, 20 F. (2d) 748. 22

Glasser v. United States, 86 L. Ed. 681 19, 20, 22

Kotteakos v. United States, 66 S. Ct. 1239.......-------------ese-sseresseeee 22

Levine v. United States, 79 F. (2d) 364 21

Tinsley v. United States, 43 F. (2d) 890. 21

Wyatt v. United States, 23 F. (2d) 791.. 21

STATUTES

Act of 1919 (28 U. S. C., Sec. 391) 15, 20

Criminal Code, Sec. 215 (18 U. S. C., Sec. 388) 2

Judicial Code, Sec. 240(a) (24 U. S. C., See. 347 (a) )----------2---- 16

Securities Act of 1933, Sec. 5(a)(2) (15 U. S. C. A. See

77(e) (2)) -

Securities Act of 1933, Sec. 17(a)(1) (15 U. S&S. Cc. A, See.

77q(a) (1))

United States Code, Title 18, Sec. 88 2

United States Constitution, Fifth Amendment... 17

United States Constitution, Sixth Amendment 17

IN THE

Supreme Court of the United States

Ocroser Term, 1947.

Jacop Morris DANZIGER,

Petitioner,

US.

UnitTep STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the Circuit Court

of Appeals for the Ninth Circuit.

To the Honorable the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

The undersigned, on behalf of your petitioner, Jacob

Morris Danziger, presents this his petition for a writ of

certiorari to review the final judgment of the Circuit

Court of Appeals for the Ninth Circuit, rendered the

23rd day of April, 1947, affirming the judgments of the

United States District Court in and for the Southern

District of California, Central Division. [R. 1859.]

The said Circuit Court of Appeals judgment was en-

tered upon the consolidated ‘appeal of your petitioner

and two co-defendat.ts to-wit: Trinidad International

Petroleum, Limited, a Nevada corporation; and Wake

Development Company, a Delaware Corporation. The

said Circuit Court of Appeals reversed the judgments

of conviction as to said corporate appellants,

aera. ~ <a mE = ERR AR RTE RRO ra OT fm ITT OE

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oil

Statement of the Case.

The indictment [R. 2-66] charges petitioner with four

classes of offenses, to-wit:

A. Counts I to VII, inclusive, charge separate viola-

tions of Section 17(a)(1), Securities Act of 1933, 15

United States Code, Section 77q(a) (1).

B. Counts VIII to X, inclusive, charge separate vio-

lations of Section 5(a)(2), Securities Act of 1933, 15

United States Code, Section 77(e)(2). (Defendants

were acquitted as to these four counts.)

C. Counts XII to XVI, inclusive, charge separate vio-

lations of Section 215, Criminal Code, 18 United States

Code, Sec. 388 (Using Mails to Promote Fraud).

D. Count XVII charges a violation of Title 18,

United States Code, Section 88, in that defendants in the

Central Division of the Southern District of California

conspired to commit offenses against the United States

by violating the aforesaid statutes; and that pursuant to

said conspiracy, committed certain specified overt acts at

Los Angeles, California. Each of the several counts of

the indictment allege that the offenses therein charged

were committed in the Central Division of the Southern

District of California.

The indictment was returned December 30, 1941, but

none of the defendants were arraigned until December

11, 1944 when petitioner and a co-defendant, Willard E.

Warren, indicated as Warren C. Carter were brought into

court and required to plead. [R. 73.]

Motion in behalf of petitioner for dismissal for want

of prosecution was presented and denied. [R. 73.]

‘titi

Trial was set for the 16th day of January, 1945, before

a visiting judge from the State of Oregon. [R. 77.]

The only parties brought to trial were petitioner and

the two corporate defendants. Save as to said defend-

ants brought to trial, the case was dismissed as to all de-

fendants other than Carter before January 16, 1945 [R.

396] and as to defendant Warren (Carter) counts 1 to

16 over objection of petitioner was dismissed on January

16, 1945. [R. 392.]

Summons against the corporate defendants were not

issued until January 4, 1945, on which date the trial

judge directed the two corporate defendants to appear for

pleading on January 16, the date set for trial. [R. 74-75.]

The return on service of said citation was had by leav-

ing them with a stenographer in the office of petitioner.

[R. 79.]

Although no one purported to appear for the corporate

defendants, the judge ordered that pleas of not guilty be

entered on their behalf [R. 388] and directed petitioner’s

attorney to act as their counsel despite his protestations

of lack of authority to do so. Petitioner’s attorney speci-

fically objected to the appointment on the ground that

there would be a manifest conflict in isterest, to which

objection the court replied that the appointment was sub-

ject to developments at the trial which may cause counsel

to believe that the interests of the several defendants

were adverse. [R. 393-394.]

On the previous day petitioner’s counsel had served

upon counsel for the government and lodged with the

court, an affidavit for a continuance of date of trial,

which affidavit for continuance was read by the court on

January 16, 1945. [R. 379-381.] Copy of this affidavit

ilies

appears at pages 4-11 of the Supplemental Transcript of

Record.

It may not be amiss to present these salient factors.

The properties of the Trinidad International Petroleum

Company were situated in Trinidad, British West Indies.

[R. 1646-50.]

The company’s title papers were in London, England.

[R. 1655-6.]

The alleged conspiracy was reputed to have been

formed prior to 1935 in the City of New York. [R.

573.] An escrow involving the sale of the Trinidad In-

ternational Petroleum shares of stock personally owned

by defendant Wake Development Company had been

opened in Wilmington, Delaware. [R. 1084.] The stock

issued to Wake Developrnent Company is admitted by the

government to have been issued prior to the enactment

of the Securities Act. [R. 1797.]

In each count of the indictment the falsity of the

scheme therein charged and likewise the reputed misrepre-

sentations claimed to have been intentionally made by all

of the defendants, was specifically charged, and repeated

by allegations denying the bona fide character of the

scheme.

Petitioner’s unanticipated sudden arraignment follow-

ing a delay of three years subsequent to the return of the

indictment, was necessarily confronted with the situation

precipitated by the state of war then existent. The cor-

porate papers were lodged in London, England, and ma-

terial witnesses located at then inaccessible points, namely,

in Trinidad, British West Indies, London, England,

Sicily, France, etc. Accordingly petitioner caused to be

online

filed the affidavit for continuance hereinbefore referred to.

The trial judge acknowledged that he recognized the seri-

ous position of petitioner by reason of the recent arraign-

ment, and indicated that if he were in his own District of

Oregon he would not be faced with the difficulty presented

by reason of the matters and things set forth in the affi-

davit for continuance, but because the senior judge of

said District Court had set the case for trial, the court

was disposed with mental reservations to direct the trial

to proceed subject to future developmenis as to what

effect the unavailability of the evidence and witnesses

would disclose. [R. 383-386.] The court having in

effect ruled that he would proceed subject to disclosures

as the case unfolded, in turn precipitated a situation where

petitioner’s counsel declared “that if he were ‘obliged to

try the case,’ he would waive a jury.” [R. 392.] There-

upon a written form of waiver required in the District,

which among other things contains a declaration that

counsel has advised the defendant thoroughly respecting

his rights, was presented to petitioner. [R. 393.] Peti-

tioner’s counsel by reason of the trial judge’s pronounce-

ment that he proposed to proceed with the trial subject to

“subsequent developments,” directed petitioner to sign

written waiver but declined to sign the waiver in behalf

of the corporate defendants. [R. 394.]

The trial then proceeded to the court without a jury.

The indictment had confessedly been procured on hear-

say; no witness having any contact with the defendants

on trial and knowledge of facts having appeared before

that body. |R. 998-999.] An investigator upon whose

testimony the indictment had been procured had obtained

from petitioner a great number of documents and files

eee

ee

relating to the business of the two corporate defendants.

This maze of documentary data was admitted into evi-

dence with no foundational background other than the

bald fact that they had been procured from petitioner, the

trial judge indicating it was all that he required. [R. 939. ]

When petitioner’s counsel endeavored to request an op-

portunity to inspect the documents before they were re-

ceived, the trial judge directed petitioner’s counsel to state

his objections, examine the exhibits later, and add to his

objections if he saw fit. [R. 646-648.]

It was flagrantly apparent from the outset that govern-

ment’s counsel was not privy to the nature, character or

time of the formation of the purported conspiracy. When

asked by the court at an early stage of the trial, govern-

ment’s counsel indicated that it was formed prior to 1935

but this generalization was ail that was presented. [R.

573.]

It was only after the government had rested its case

and after there had been received in evidence some 112

exhibits comprising thousands of pages, that the trial

judge for the first time made inquiry of government’s

counsel as to the nature and character of the charges

against the defendants on trial. Government’s counsel

thereupon informed the trial judge that the defendants

were on trial for violations of the Securities Act of 1933,

and Mail Fraud Conspiracy, and that the charges were

identical in character. [R. 1537-1540.]

The trial judge had in the early stages of the proceed-

ing asked the government’s counsel whether he intended

to call Warren (Carter) as a witness. It was indicated

that the government had such intention but that they

-—

wnllites

could not attempt to inform the court as to what he would

testify to. [R. 774-776.]

Before the latter inquiry, the trial court had declared

to petitioner’s counsel that if he contended under the law

of evidence that Warren (Carter) could not take the wit-

ness stand and testify he was petitioner’s agent, the court

and counsel were in complete disagreement. [R. 771-

773.]

No witness was produced at the trial who purported to

have had any direct transaction with petitioner other than

Willard Eugene Warren, indicted as Warren C. Carter,

who had entered a plea to Count 17 prior to January 16,

1945.

In fulfillment of the trial judge’s pronouncement that

the said witness could take the stand and testify he was

the agent of petitioner, the mass of documentary evidence

previously mentioned was received as evidence with no

foundation other than the fact as previously disclosed

that the files upon request had been turned over to the

Securities Exchange Commission.

The Government’s case is altogether grounded on War-

ren’s testimony.

When he took the stand the trial judge gave the said

witness, carte blance to-relate a pot-pourri of his personal

peccadillos.

The undisputed evidence is that petiioner, a resident of

the City of Los Angeles for sixty (60) years and a mem-

ber of the bar of California for forty (40) years [R.

1637-1638], had left Los Angeles for the purpose of leav-

ing for England where he was to complete pending nego-

tiations for the financing and drilling of Trinidad Oil

properties in England. [R. 1653-1654, 1068, 1078.]

idle

The only contacts shown to exist in the record evidence

between petitioner and the said Warren are the following:

Petitioner saw him in New York several times in

1935 and the only other occasion was in 1937, [R. 1274.]

Warren was never confessedly in Los Angeles before

his meeting with defendant until his arraignment for

trial in 1944. [R. 1281.]

Over repeated objections in behalf of petitioner and his

co-defendants, Warren was permitted to assert that he

had “written” the Wake Development Company: in no

instance was any foundation laid as to the actual con-

tents of these writings, nor evidence presented respecting

the mailing thereof, the person who received them, or

any purported reply thereto.

The panaroma of events testified to by Warren re-

vealed the following:

In the summer of 1935 he met petitioner in New York.

Petitioner informed him that he was interested in getting

sufficient monies for expenses to go to England where

negotiations were pending to finance actual oil drilling

operations at Trinidad. [R. 1068, 1078.]

First DEAL: The evidence in regard to the so-termed

conspiracy discloses that petitioner discussed with War-

ren the sale to some former stockholders of a South

American and All American Petroleum Companies, which

companies had prior interests in the Trinidad Company

holdings, and Warren was to call upon these stockholders

in New York and to attempt to sell them some of the

Wake Company’s International Petroleum shares. The

transaction did not involve use of the mails, and ad-

mittedly involved the sale of securities not subject to the

- —I—

Security Exchange Commission regulations. [R. 1031,

1041-1042. ]

Warren reported that his personal calls on these pros-

pects was ineffective. [R. 1049-1050. ]

SECOND DeaL: The second arrangement, after a few

preliminaries, brought into the transaction a Mr. Palmer

and a Mr. De Hart. The latter were officers of the Great

Eastern Gas Company, a corporation who entered into

an agreement with the corporate defendants for oil drill-

ing operations, and letters were to be sent from the Wil-

mington, ]*slaware office to their stockholders and replies

thereto to a postoffice box in New York. [R. 1051-1055. ]

This so-termed conspiracy was terminated by a subse-

quent arrangement, to wit:

Tuirp DEAL: In the third transaction, an escrow was

opened in the State of Delaware between J. H. Dube and

Company and the Wake Development Company involving

the sale of 20,000 shares through said escrow. [R. 1084-

1085, 1673.]

In this third transaction, the Great Eastern Gas Com-

pany were to circularize their stockholders and the Wake

Development Company was to do nothing but receive

their share of the proceeds. [R. 1680. ]

Petitioner left New York and arrived in Southampton,

England, on September 19, 1935. [R. 1720.] All ar-

rangements previously formed were cancelled at the direc-

tion of petitioner from England on October 14, 1935. [R.

1682. }

Petitioner thereafter had no transactions and remained

in Englanc until July 12, 1937. [R. 1721.]

—

FourtH Deat: Warren’s testimony discloses that a

fourth arrangement was made in which he was assert-

edly advised from England through letters to communi-

cate with the Wake Development Company in Los Angeles

for details respecting any further transactions. [R. 1090.]

The record is silent as to the nature, character or parties

involved in this fourth arrangement, while petitioner was

in England.

FirtH Dear: The record discloses that a fifth ar-

rangement was made while petitioner was in England.

Warren produced no documentary evidence, but testified

he “wrote to petitioner” that he was going to Canada to

make arrangements with a broker in Canada.’ Warren,

in one of the few instances where an objection was sus-

tained, was prevented from disclosing his conversations

with the broker in Canada, but the evidence reached a

point where it could be inferred that some Canadian

brokerage firm had circularized certain stockholders in

a Canadian Mining Company. [R. 1091.]

1The Government failed to follow up the arrangements made by

Warren in Canada, it is not disputed that he did make two trips to

Canada on his own motion, but what arrangements were there made

were never revealed, and the parties to this Canadian transaction

were not identified.

This is very material for the reason that in every count contained

in the indictment to which evidence was addressed, save and except

Counts 12 and 13 which are hereinafter presented as the Seventh

Deal, and Count 15 to which the Government’s counsel in appellee’s

brief (page 48) concedes and confesses error involved representa-

tions made by Warren and some of his personal representatives that

they represented Canadian interests as distinguished from the de-

fendants on trial.

Moreover, at no time during the trial was any evidence elicited

that Warren and his personal agents were not indeed representing

such interests. Nor were the bona fides of Warren representations

ever claimed by him in his testimony to have been untrue,

—]]—

S1xtH Dear: The record evidence then presents on

the eve of the petitioner’s return to the United States in

1937 the Sixth arrangement which brought into the ac-

tivities of Warren, a Mr. Robins and a Mr. Shaffer who

had made a transaction with a Mrs. Parsons confessedly

in the absence of Warren or petitioner, or any of his co-

defendants. [R. 1103-1107.]

There is no evidence that petitioner discussed or entered

into any transaction with Warren upon his return to New

York in 1937 respecting any transaction in futoro. [R.

1122-1124. ]

SEVENTH Dea: This transaction by Warren with a

Dr. Hazelton of New Jersey [R. 1184] was at the solici-

tation of a New York brokerage firm. (A. S. Phelps.)

The deal was between Phelps and Warren. [R. 1188-

1190.] Dr. Hazelton executed a power of attorney to

Warren. Petitioner and his co-defendants were charged

with having mailed a letter to Dr. Hazelton which War-

ren claims he sent on here to be remailed. [R. 1209.]

No evidence was presented which intimates that the con-

tents of this letter was ever known by the defendants or

that they had anything to do with this mailing.

THE Parsons TRANSACTION: The nexus of Counts 1

and 15, and the overt acts which compose Count 17 per-

tain to a transaction with Elizabeth D. Parsons of Potts-

ville, Pennsylvania, in 1940. No witness was brought

forth to testify by whom and in what manner the 1940

transactions were consummated.”

*Appellee in its brief (page 48) in the Circuit Court confessed

error in regard to Count 15. This, in legal effect, strikes Counts 1,

15 and 17. All pertain to the 1940 Parsons transaction.

a

_—

In the Court 2 transaction, Warren represented to a

person therein involved that he was a representative of

a Canadian company. [R. 1125-1126.]

In the Court 3 transaction, he similarly represented

that he was representing the Canadian company. [R.

1134-1135.]

In the Court 4 transaction, Warren likewise repre-

sented that he represented Canadian interests. [R. 1140-

1141.]°

In the Count 5 transaction, Warren represented to the

parties involved that he represented Canadian interests.

[R. 1151.] He said he sent an associate named O’Brien,

whose hearsay was reported back to him which testimony

forms the background supporting Count 5.

In the Count 6 transaction, Warren told the party in-

volved that he represented Canadian interests. [R. 1162-

1163.]

Count 7 was dismissed on motion of the Government at

the time of trial. [R. 1639.]

The Count 8 transaction involved representations by

Warren that he was representing Canadian interests. [R.

1171-1172.]

(ee

8On direct examination by Government’s counsel of Warren [R.

1146] the following was developed :

“Q. By Mr. Lucas: All right. Now, you have been using

the name South McKenzie Isiand Mines in this transaction with

Mr. Russell ; had you prior to this time mentioned that company

to Mr. Danziger? A. No, I can’t say that I did. I-can’t

recollect that I did although I may have.

Mr. Rose: I move that the latter part be stricken.

The Court: Motion denied.”

| scsi

It was contended in the Trial Court and the Circuit

Court of Appeals that only one conspiracy was charged,

and that the proofs offered respecting the various counts

charged in the indictment, were not the type and form of

conspiracy ‘charged in the indictment, but were the per-

sonally assumed transactions by Warren and some of

his aides without disclosure to the defendants on trial as

to their representations with manifest lack of authoriza-

tion on the part of any of the defendants brought to trial.

[R. 106-110.]

In its opinion, the Circuit Court of Appeals expresses

the view that by reason of the Trial Court having denied

the continuance conditionally subject to developments dur-

ing the trial, that the evidence unavailable might be im-

portant and, “That it is the kind of thing that can’t

be passed on in *Seadenes,” that it was incumbent upon

petitioner to request a continuance at some undisclosed

subsequent stage of the proceedings.

In this behalf, petitioner submits the record shows that

when defense counsel endeavored to canvas the judicial

mind at a point one and one-half pages before the Gov-

ernment rested, to wit: [R. 1398], the trial judge em-

phatically declared: “I am not answering any questions.”

The court pushed petitioner’s counsel to finish the case

without expressing any views. [R. 1793. ]

The Cireuit Court is in error respecting the failure on

the part of petitioner’s counsel to call the trial judge’s

attention to the difficulties by reason of the failure to

grant the continuance, as is fully supported in the record,

[R. 1526-1527 and 1819.]

The Government at the time of trial, having produced

no evidence whatsoever to support the specific allegations

2 oe BOO IRA. Ne PF

=

of lack of bona fides of the Trinidad Petroleum Company

insisted that the entire deal was seeded in fraud. [R.

1832. ]

The trial judge intimated that the figures respecting

the expenditures made by the Trinidad International Pe-

troleam Company was a typographical error. [R. 1439.]

It was facetiously stated to Government’s counsel that

it was not shares of stock that had been issued in the

amount of 7,500,000, but dollars. [R. 1479-1480. ]

At the conclusion of the trial, the court struck the regis-

tration counts. [R. 1809.]

The court found your petitioner and the two corporate

defendants guilty on Counts 1, 2, 3, 4, 5, 6, 12, 13, 14,.

15, 16, and 17 as charged in the indictment. [R. 1837.]

At various appropriate stages in the proceedings in the

Trial Court, petitioner challenged the constitutionality of

the proceedings, and contended them to be in contraven-

tion of due process as follows:

1. Motion to dismiss indictment. [R. 68.]

2. Motion to quash the indictment on the ground that

the same was procured contrary to the laws of the

United States, in violation of the constitutional pro-

visos, namely, due process and equal protection of

the law. [R. 1419.]

3. That the indictment had been procured solely on

hearsay testimony of Allen G. Mainland who con-

fessed that he had no personal knowledge in respect

to the matters to which he testified. [R. 973-1002.]

4. Motion for continuance. [R. 383-385 and 387.]

Motion for new trial. [R. 135.]

6. Motion in arrest of judgment. [R. 140.]

on

cacti.

The trial judge indicated that he wanted a complete

record to be printed, including all the exhibits. [R. 172.]

All stipulations entered into by Government’s counsel and

petitioner’s counsel were rejected by the trial judge. [R.

672.]

Exhibits received in evidence consisting of thousands

of pages, were all ordered by the trial judge the day after

both sides had rested in evidence “for all purposes.” [R.

1811.]

The Circuit Court admitted petitioner to bail after re-

fusal by the trial judge. [R. 1842.] The Circuit Court

ordered the exhibits to be considered in their original

form on appeal. [R. 1848.]

Before the Circuit Court of Appeals, there were thirty-

five assignments of error comprising 202 pages of rec-

ord and four additional points in the statement upon

which petitioner relied on appeal. [R. 175-377 and 1844-

1845. ]

In its opinion, the Circuit Court of Appeals failed to

consider any of the assignments other than Assignment

I; refusal to dismiss the indictment for want of prose-

cution [R. 175], and Assignment IV, motion to quash

return of service on the corporate defendants. [R. 176.]

Only two of the additional points, denial of motion for

continuance and appointment of petitioner’s counsel for

corporate defendants were considered by the said court.

[R. 1844-1845. ]

The Circuit Court of Appeals erroneously invoked and

applied Act of 1919 (28 U. S.C. 391), in holding the

- SE

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record disclosed no error which affected the substantial

rights of petitioner.*

In its opinion, the Circuit Court of Appeals failed ade-

quately to consider the effect of the denial of petitioner’s

motion for a continuance. It was only after the rendi-

tion of the decision that it became apparent that the

Circuit Court and appellee’s counsel were not consider-

ing the affidavit [Supp. R. 4-11] that had been filed in

support of the motion for continuance. The supplemental

transcript of record |R. 1-3] reveals what brought about

the overlooking of the importance and significance of this

motion, and the stipulation that the same was overlooked

by the Government is reflected, [Id, 11,]

Opinion of the Court Below.

No opinion was rendered by the District Court in this

case,

The opinion of the Circuit Court of Appeals was

handed down on the 23rd day of April, 1947. It appears

in the record at page 1853 and officially reported in 161

F, (2d) 299.

Jurisdiction.

The jurisdiction of this court is invoked under Judicial

Code, Section 240(a); 24 U. S. Code, Section 347(a).

Judgment of the Circuit Court of Appeals below was

entered on April 23, 1947. The court below denied a

petition for rehearing, filed within time allowed therefor

on July 8, 1947. [R. 1860.]

‘It is not contended that the entire record was ever reviewed by

the Circuit Court. On the occasion of oral argument, the said Court

made it clear it had no such intention and struck the Government's

brief directing a new one to be filed. [R. 1851.]

_~17—

Specification of Errors.

The petitioner relies upon the specification of errors

below [R. 175-377] ; the five additional points in the state-

‘ment upon which the petitioner relied upon appeal [R.

1844-1845]; and on the errors assigned in his petition

and supplemental petition for rehearing. [R. 1860.] (The

nature of the specification of errors is suggested by our

statement of “Questions Presented”. )

Questions Presented.

1, Can it be contended that a defendant charged with

a number of criminal offenses in a District Court of the

United States has been afforded due process and the kind

and character of trial contemplated by the provisions of

the Constitution of the United States amendments,

Arts, V and VI— |

(a) When the defendant was indicted by a grand jury

drawn from a panel improperly chosen (according

to Ballard v. United States of America, 91 L. Ed.

195);

(b) When the indicted defendant was not arraigned

for almost three years subsequent to the return

of the indictment;

(c) When the defendant on the date set for trial is

required to join in his defense with two corporate

defendants who had never been brought into court

or arraigned, or afforded an opportunity to plead;

(d) Where the defendant’s counsel, over objection and

protest, is appointed to represent the two co-

corporate defendants ;

ae

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(d) Where confessed vital and material evidence by

witnesses located in foreign places is unavailable

to the defendant by reason of sudden arraignment

and setting for trial after 3 years’ delay, and con-- _-

tinuance denied subject to developments during

trial which necessarily compelled the defendant to

waive trial by jury under the circumstances;

(e) Where the trial judge received into evidence a mul-

titude of documents purporting to reflect action

on the part of the two said corporate defendants,

without any foundation other than that they had

come into the hands of the Government upon re-

quest to an officer of the corporations;

(g) Where the trial court admits into evidence the

declarations of a former co-defendant on the theory

that he can testify that he was the agent of the

defendant on trial, when it is established that they

have not met or spoken to each other in years, and

where no knowledge or privity is shown, save

and except that the said witness contends that he

“wrote” to the corporation of which defendant was

an officer, without disclosing the contents, a copy,

or such fundamentals, showing mailing or receipt

of such purported communications?

2. In the prosecution of crimes requiring knowledge

on the part of a defendant, may a trial judge bind an

accused to account for unauthorized declarations made

by a person in the absence of, any proof of, authoriza-

tion, ratification or acquiescence?

3. Where an accused is charged with seventeen spe-

cific offenses, some of which are, and are not, offenses

—~19—

involving moral turpitude, and where the latter element

results in his disbarment, be bound by a Circuit Court

of Appeals’ decision that he is probably guilty of some

count without disclosing, which, of the seventeen counts,

on the theory that the accused’s punishment is not effected,

without regard to the point of whether his substantial

rights have been violated and abrogated?

4. May an accused be charged with a particular and

specific single conspiracy, and at the time of the trial

be bound by the acts of numerous persons shown to be

not in privity with him in at least six or seven unrelated

and separate conspiracies to which he is not a party?

5, Did the Cireuit Court below erroneously construe

the holding of this Honorable Supreme Court in the case

of Glasser v, United States, 86 L, Ed, 681, in contend-

ing that it was incumbent upon petitioner to establish

How he was prejudiced by having his counsel over pro-

test and objection, appointed to represent two co-defend-

ants whose acts and deeds were charged to petitioner?

Reasons Relied on for Allowance of Writ.

The decision of the Circuit Court of Appeals presents

the following points calling for a review by this court:

A. The court erred in failing—

(1) Adequately to consider the petitioner’s as-

signments of errors [R. 175-377], and the

statement of points relied on in the Circuit

Court, numbers 1-5, [R, 1844-1845, ]

(2) It also failed to pass on any of the assign-

ments other than heretofore specified,

aE ce

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=_ =

B. Where the Circuit Court erroneously invoked and

applied the Act of 1919 (28 U. S. C. 391) without indi-

cating that the entire record had been considered and

based its affirmahce on the ground that the petitioner’s

punishment was not affected by disregarding whether

his substantial rights were violated and abrogated, can

it be said petitioner was not denied due process?

C. The Circuit Court of Appeals has failed to apply,

or plainly misinterpreted, an authoritative Supreme Court

decision, to wit: the case of Glasser v. United States,

86 L. Ed. 681, in holding that it was necessary on the

part of petitioner to indicate the precise degree of prej-

udice sustained by him as a result of the court’s appoint-

ment of counsel to represent the two corporate defendants.

D. The Circuit Court of Appeals erred in failing to

apply the authoritative Supreme Court decision of Bal-

lard v. United States, 91 L. Ed. 195, when it refused to

quash the indictment by reason of the manner in which

it had been procured.

E. Apart from the specific repudiation of the holding

in the Glasser case, the instant case presents questions of

importance in the general Federal Criminal Law and in

the administration of justice.

There is a seemingly unprecedented situation in this

case where a trial judge admits that he is reluctant to

proceed by reason of the showing made for a continu-

ance and appointment over objection of counsel to repre-

sent co-defendants, conditional and subject to disclosures

as the trial unfolds.

While it is possible to view such proceedings before a

judge without a jury, would such judicial pronouncement

_

one.

not be expected to provoke the defendant as it did in this

case to waive right to trial by jury?

F. The decision of the said Circuit Court of Appeals,

by holding and countenancing the mode and manner of

trial reflected in the “statement of the case and questions

presented” (ante) sanctions such a departure by a lower

court as to call for an exercise of this court’s power of

supervision. |

G. The Circuit Court of Appeals has rendered a de-

cision in conflict with the decisions of other Circuit

Courts of Appeals on the same matter. The decision in

the instant case is believed to be in conflict with the

decision in the case of Tinsley v. U. S. (C. C. A. 8), 43

F. (2d) 890.

H. The Circuit Court of Appeals has rendered a de-

cision in conflict with the decisions of other Circuit

Courts of Appeals on the same matter, to wit, Wyatt v.

U. S. (C. C. A. 3), 23 F. (2d) 791.

I. The Circuit Court of Appeals has rendered a de-

cision in conflict with its own previous decision in Levine

v. U. S., 79 F. (2d) 364, wherein it held that conversa-

tions and transactions by alleged co-conspirators not au-

thorized were not competent evidence.

J. The Circuit Court of Appeals rendered a decision

in conflict with the decisions of other Circuit Courts of

Appeals on the subject of direct proof of mailing, to

wit: the case of Brady v. U. S. (C. C. A. 8), 24 F. (2d)

399,

K. The Circuit Court of Appeals has rendered a de-

cision in conflict with the decisions of other Circuit

=

Courts of Appeals on the same matter, to wit: Freeman

v. U. S., 20 F. (2d) 748.

L. The Circuit Court of Appeals has rendered a de-

cision antithetical to its recognition of the holding by

this court in the case of Kotteakos v. U. S., 66S. Ct. 1239,

as reflected in its opinion in Camella v. U. S. (C. C. A.

9), 157, F2, 470, Sept. 1946, in respect to the subject of

variance of proof.

M. The Circuit Court of Appeals has rendered a de-

cision probably in conflict with applicable decisions of

other Circuit Courts of Appeals respecting the effect of

the reversal as to two of three defendants brought to

trial on a charge of conspiracy as per the case of Feder

v. U.S. (C. C. A. 2), 257 Fed. 694.

Throughout the trial, the trial judge seems to have

acted arbitrarily. From his own declarations, it is rea-

sonable to infer that he was unfamiliar with the elements

requisite to establishing the corpus delictt of the offenses

charged in the indictment; that he was misled by mis-

information on the part of trial counsel for the Gov-

ernment.

This court has jurisdiction in the exercise of its broad

appellate jurisdiction. Circumstances here revealed are un-

usual and probably unprecedented.

This Honorable Supreme Court has previously held

that upon the trial judge rests the duty of seeing that

the trial is conducted with solicitude for the essential

rights of the accused. (Glasser v. U. S.)

If our cherished constitutional rights are to be pre-

served and if our established principles of law are not to

be emasculated, the situation presented in this petition

em

—23—

appropriately calls upon this Honorable Supreme Court

for assumption of jurisdiction.

Wherefore, petitioner prays that this court grant a

writ of certiorari and thereafter order the judgment be-

low reversed, or in the alternative, remand the cause for

a new trial.

Respectfully submitted,

R. M. J. ARMSTRONG,

Attorney for Petitioner.

A. Br1GHAM Ross,

Of Counsel.