Opposition Brief — Fields v. United States

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Questions presented

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CITATIONS

Cases:

Arizona v. California, 283 U. S. 423..........-.--------

Berger v. United States, 295 U. S. 78_.-----.------------

Fournier v. United States, 58 F. 2d 3._........----------

Hickory v. United States, 151 U. S. 303___.....----------

Hirschfeld v. United States, 54 F. 2d 62___..------------

Litsinger v. United States, 44 F. 2d 45__...___.----------

Screws v. United States, 325 U.S. 91....-.---.----------

Sonzinsky v. United States, 300 U. S. 506__._______--_--_-

Spies v. United States, 317 U. S. 492__.__.___-----------

Townsend v. United States, 95 F. 2d 352, certiorari denied,

United States ee ee ee

United States v. Graham, 102 F. 2d 436, certiorari denied,

United States v. Murdock, 290 U. S. 389_._-_.--.----------

United States v. Skidmore, 123 F. 2d 604___-____--------

United States v. Young, 26 F. Supp. 574, affirmed, Young v.

i OO 0 oe keke anh e nena snus

Wong Tat v. United States, 273 U. S. 77.----------------

Young v. United States, 97 F. 2d 200_....-.-------------

Statute:

R. S. 102, as amended (2 U. S. C. 192).......-.---------

Miscellaneous:

Federal Rules of Criminal Procedure, Rule 7 (f)---------

3 Wigmore, Evidence (3d ed. 1940):

771899—48——-1

12

12

=

Guthe Supreme Court of the United States

OcToBER TERM, 1947

No. 458

BENJAMIN F. FIELDS, PETITIONER

v.

THE UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 404—

408) has not yet been reported.

JURISDICTION

The judgment of the Court of Appeals was

entered October 27, 1947 (R. 409). The petition

for a writ of certiorari was filed’ November 26,

1947. The jurisdiction of this Court is invoked

under Section 240 (a) of the Judicial Code, as

amended by the Act of February 13, 1925. See

also Rules 37 (b) (2) and 45 (a), F. R. Crim. P.

(1)

2

QUESTIONS PRESENTED

1. Whether petitioner was entitled to a bill of

particulars.

2. Whether there was a fatal variance between

the charges of the indictment and the proof.

3 Whether the evidence was sufficient to sup-

port the verdict.

4. Whether the court erred in excluding evi-

dence which petitioner offered to show that the

Committee’s acts were prompted by political

motives.

5. Whether the court erred in allowing the

Government to cross-examine one of its own

witnesses.

6. Whether ‘‘willfully” as used in R. 8. 102

means ‘done with an evil or bad purpose”’ rather

than ‘“‘deliberate and intentional.”’

STATUTE INVOLVED

R. S. 102, as amended (2 U.S. ©. 192) provides:

Every person who having been summoned

as a witness by the authority of either

House of Congress to give testimony or to

produce papers upon any matter under in-

quiry before either House, or any joint

committee established by a joint or concur-

rent resolution of the two Houses of Con-

gress, or any committee of either House of

Congress, willfully makes default, or who,

having appeared, refuses to answer any

question pertinent to the question under in-

quiry, shall be deemed guilty of a misde-

meanor, punishable by a fine of not more

3

than $1,000 nor less than $100 and im-

prisonment in a common jail for not less

than one month nor more than twelve

months.

STATEMENT

Petitioner was indicted in the District Court

of the United States for the District of Columbia

in two counts, each charging a violation of Section

102 of the Revised Statutes, as amended. The

first count alleged that the House of Representa-

tives of the United States created a Select Com-

mittee to investigate the disposition of surplus

property acquired by the Government of the

United States in connection with the war effort ;

that petitioner, appearing before the Committee

as a witness, “‘was questioned regarding a con-

tract between the United States and Warr Built

Homes, Ine., or C. B. Warr, or Warr Caston

Lumber Company, dated about June 19, 1946, for

the sale of five hundred and thirty-nine rolls of

bronze mesh screen wire’’; that in the course of

his testimony, petitioner produced a paper which

read as follows:

BRONZE WIRE SCREENING

ND GE niticnctncncistinnimaibncetes Lc $4, 442. 80

Less:

Brokerage, 1% to Glenn A. Dies_ $1, 480. 93

Brokerage, % to John Doe___ 1, 480. 93

Brokerage to John Doe_______ 400. 00

Traveling and misc. expenses_ 100. 00

3, 461.86 3, 461. 86

Net profit

—

4

If they question profits we make, which amount to 5

per cent, remind them of the fact that they pay their

own brokers and agents 12% per cent.

that petitioner thereafter was summoned to pro-

duce ‘‘certain papers, that is to say, all books,

records, documents, memoranda, notes, ledger

sheets, cancelled checks, and other evidence of

payments and other material relating to or con-

nected with the contracts ;” and that on August

14, 1946, petitioner appeared before the Commit-

tee but failed and refused to produce all such

papers as were available to him and could have

been produced by him and thereby willfully de-

faulted. The second count incorporated by ref-

erence the allegations of the first, and charged a

second default on August 15, 1946. (R. 1-4.)

Prior to trial, petitioner filed an affidavit to the

effect that he knew of no such ‘‘eontract”’ as that

alleged in the indictment (R. 8-9), and he moved

that the United States be ordered to furnish him

with a certified copy of such contract (R. 9-10).

He also filed a motion for a bill of particulars

requesting that he be furnished the originals or

copies of all documents that he had failed and

refused to produce (R. 11-12). Both motions

were denied (R. 10, 12).

The evidence for the Government may be sum-

marized as follows:

Representative Slaughter, Chairman of the

Surplus Property Committee, testified that peti-

tioner appeared before the Committee on August

-

5

12, 1946. Petitioner told the Committee that he

acted as a broker for clients who bought and

sold surplus property, and he was questioned

with regard to 539 rolls of surplus bronze screen-

ing which had been sold to C. B. Warr. (R.

30-34.) Petitioner admitted that he had re-

ceived a commission of more than 50%, and

when asked with whom he had split it, he stated

that Dies, Payne, and another whom he could not

remember had participated (R. 390-51). When

asked for his file on the transaction, petitioner

produced it and the Committee found therein a

paper (supra, p. 3) which showed that two

“John Does’ had shared in the commission (R.

53, 162-166). When petitioner could not satis-

factorily explain the identity of the “John Does,”’

the Committee became suspicious that they might

refer to some one in the War Assets Administra-

tion (R. 177-178, 221-225). Consequently, on the

following day, August 13, 1946, a subpoena was

issued ordering petitioner to produce all papers

and records relative to the Warr transaction

(R. 178, 396). On the two succeeding days,

August 14 and 15, 1946, petitioner again appeared

but did not satisfy the Committee that he had

produced all his records, although he stated that

he had produced all he had (R. 178-189).

The Government also introduced evidence to

show that on August 14 and 15, 1946, certain

pertinent records were available to petitioner.

a

6

(1) There was testimony that petitioner received

a check for $4,442.80 for his fee in the Warr

transaction (R. 90-93, 230-232) and that this was

deposited in the Industrial Bank of Washington

on June 20, 1946, together with $600 in cash

(R. 350-351, 395). The duplicate deposit slip

showing this deposit was in petitioner’s office a

few days later on June 25 or 26, 1946, (R. 111-

113, 121-122); it seems to have remained there

throughout the period of his appearances before

the Committee during August and until a few

days before petitioner’s trial, when his secretary

readily produced it from the white envelope

in which she kept her deposit slips (R. 124, 136-

137). (2) The Industrial Bank furnished to

petitioner’s office a monthly statement for the

month of June 1946, which showed the deposit of

June 20; an official of the bank testified that such

statements were normally sent to customers

within the first ten days of the succeeding month

and that the bank’s books did not indicate any

departure from the normal course of business

for June 1946; and the June 1946 statement was

produced at the trial by petitioner ’s secretary

(R. 30, 92-97, 121, 400-401). (3) When Dies

left petitioner’s organization on June 29, 1946,

a check was written covering his share of the

Warr deal. Petitioner immediately cashed the

check for Dies and later instructed his secretary

to write ‘“‘cancelled’’ across the stub in the check

‘

book. (R. 125-127, 148-154.) Petitioner’s sec-

retary produced the check book containing the

stub at the trial in response to a subpoena (R.

30, 110, 125, 402). Chairman Slaughter testified

that petitioner did not produce the deposit slip,

the bank statement or the check stub in response

to the Committee's subpoena (R. 197-199).

The evidence further reveals that petitioner

told the Committee conflicting stories about the

records demanded by it. When first asked for

the records of the Warr transaction, he told the

Committee that his auditor had them; later he

said that the auditor was behind in posting his

books, and that the auditor had none of the desired

records and would be unable to get the books

up to date until petitioner gave him memoranda

of the various transactions to be entered (R. 179+

189). Petitioner first told the Committee that

Payne had received his split by withholding $400

before he turned over the check for $4,442.80 to

petitioner (R. 50-51); then he ‘remembered”’

that Payne was the “John Doe’’ who got $400 out

of the $4,442.80 (R. 169-170) ; finally he testified

that this “John Doe’? was Harry Lyons (R.

344-348). On August 12, 1946, he told the Com-

mittee that he could not remember the name of the

“John Doe’ who received $1,480,93 out of the

amount received on June 20, 1946 (R. 169); but

two days later he stated that this ‘John Doe’’ was

Brunner (R. 179), who had been working in peti-

T71899-—-48- — -2

_ ry

8

tioner’s office until a few days before the date of

petitioner’s testimony and who was a partner in

the surplus property deals (R. 243-250).

At the close of the evidence, petitioner re-

quested that the “ury be instructed that the term

‘“‘willfully,’’ a used in the statute, meant “‘done

with a bad purpose; without justifiable excuse ;

stubbornly, obstinately, perversely’? (R. 14-15).

The court refused this request, and instead in-

structed the jury that the term meant ‘‘deliberate

and intentional’? as opposed to mere inadvertence

or accident, but that it did not necessarily connote

‘‘an evil or a bad purpose”’ (R. 368).

The court directed a verdict of acquittal on the

first count (Tr. 1456), but petitioner was con-

victed on the second count and was sentenced to

imprisonment for 90 days and to pay a fine of

$250 (R. 16, 379).

ARGUMENT

1. Petitioner contends that he was deprived of

due process of law in that his request for a bill

of particulars was denied (Pet. 2, 6, 10, 14, 15,

16-17). Such a request is addressed to the dis-

cretion of the trial court. Rule 7 (f), F. R. Crim.

P. We think it clear that there was no abuse of

discretion here. The Government need not fur-

nish particulars when the one seeking them is in

possession of the means of ascertaining them.

: United States v. Skidmore, 123 F. 2d 604, 607 (C.

C. A. 7). Petitioner himself introduced the de-

posit slip in evidence (R. 131) and the bank state-

9

ment and check stub were produced by his seere-

tary at the outset of the trial (R. 29-30). There

is nothing in the record indicating that petitioner

was taken by surprise during the progress of the

trial, or that his substantial rights were preju-

diced in any way by the denial of the bill of

particulars. Wong Tai v. United States, 273 U.

S. 77, 82. Moreover, this point was not raised in

the Court of Appeals, and is thus in the nature of

an afterthought here.

2. Petitioner insists that there was a material

variance, in that the indictment charged that he

was ordered to produce all papers relative to a

‘contract’ between the United States and C. B.

Warr, whereas the proof failed to show any such

contract (Pet. 2, 5-6, 14, 17-18)... But the es-

sence of the charge was that petitioner had failed

to produce records relative to a matter under

inquiry by the Committee, i. e., a certain specific

transaction in surplus property, which was proved

by the evidence. The description of this transac-

tion as a “contract’’ could only be fatal if it had

misled petitioner, or if he would not be protected

* The evidence was that petitioner originally ordered the

wire for Baumrin, but by the time the allocation came

through Baumrin no longer wanted it and Warr agreed to

take it (R. 140-141); that the sale contract was made out

to petitioner (R. 55, 385), but that petitioner paid for the

Wire with Warr'’s money and had it shipped direct to Warr

from the Goverment depot (R. 141-142). In view of peti-

tioner’s own statement that he was a broker in surplus

property (R. 33), Warr would appear to have been the

undisclosed principal in this contract.

10

from a further prosecution for the same offense.

“The true inquiry * * * is not whether there

has been a variance in proof, but whether there

has been such a variance as to ‘affect the sub-

stantial rights’ of the accused.’’ Berger v. United

States, 295 U. S. 78, 82. Petitioner makes no

showing of surprise, and the offense is so partic-

ularized that further prosecution would be im-

possible.

3. We think it clear from the Statement

(supra, pp. 3-8) that there is no merit in the

contention that the verdict is not supported by

the evidence (Pet. 2, 3-10, 14, 15). There was

evidence that certain records were demanded,

and that records meeting the description were

available to petitioner at the time. There was

also evidence from which the jury might properly

have inferred that petitioner was endeavoring

to conceal from the Committee the true cireum-

stances surrounding the Warr transaction.

4. Petitioner attempted to challenge the le-

gality of the Committee’s acts by offering evi-

dence that its members were guided by personal

or political, rather than legislative, motives (R.

204-213), and he contends that the trial court

erred in excluding this evidence (Pet. 3, 10, 14,

15-16). However, it is settled that the courts

will not scrutinize the motives of a legislative

body when it exercises a power properly con-

ferred on it. Arizona v. California, 283 U. S.

423, 455-457; Sonzinsky v. United States, 300

| —_

1l

U. S. 506, 513-514. Of course, as petitioner

points out (Pet. 16), Congress has no general

power of inquiry into private affairs. But here

the purpose for which the Committee was estab-

lished was clearly legislative, since it was in-

structed to investigate the adequacy or inade-

quacy of the statutes controlling disposal of sur-

plus property (R. 2); and the demand for the

records of the Warr deal was clearly in aid of

this legislative function. Consequently, the court

properly excluded evidence offered solely to show

political or personal motives.

5. Petitioner complains that the court erred

in permitting the Government to cross-examine

its own witness, Brunner (Pet. 2, 10, 14, 28-34).

Brunner is a business associate of petitioner (R.

243). The Government hoped to show through

his testimony a possible motive for petitioner’s

default, in that petitioner desired to conceal the

fact that Brunner, who was on parole on a Fed-

eral sentence, had violated the terms of his parole

by engaging in a surplus property transaction

(R. 241, 243, 258). Before Brunner was called

to the stand, the prosecutor informed the court

that he was a witness hostile to the Government,

and asked that he be called as the court’s witness

and that permission be granted to cross-examine

him from the outset (R: 238-243). Such permis-

sion was granted (R. 238). The prosecutor began

by asking Brunner whether he was on parole

when he went to work for petitioner (R. 243).

—

12

This could not be classed as an impeaching ques-

tion, since the answer had an immediate bearing

upon the point at issue in the case. Later, how- ~

ever, after Brunner had testified that his efforts

had made the Warr transaction possible, he was

confronted with his statement to the Committee

that he had not participated in it. He admitted

that he had made this statement and explained

that it was because he was under supervision of

the Parole Board at the time (R. 254-258).

It is true that it is frequently laid down as a

general rule in the federal courts that a party

may cross-examine his own witness only after

being surprised by his testimony. Hickory v.

United States, 151 U. S. 303, 309; United States

v. Maggio, 126 F. 2d 155, 158-159 (C. C. A. 3),

certiorari denied, 316 U. 8S. 686; United States

v. Graham, 102 F. 2d 436, 441-442 (C. C. A. 2),

certiorari denied, 307 U. S. 643; 3 Wigmore,

Evidence (3d ed. 1940) § 905, note 4. In this

case, permission was granted to cross-examine

without any showing of surprise. However, for

a number of reasons we believe that the rule, if

it be one, was not violated; and that, in any event

no substantial harm was done to petitioner.

(a) A hostile witness may be called by the

court itself and subjected to cross-examination

by both parties. Litsinger v. United States, 44

F. 2d 45 (C. C. A. 7); Hirschfeld v. United States,

54 F. 2d 62 (C. C. A. 7); Fournier v. United

States, 58 F. 2d 3 (C. C. A. 7); 3 Wigmore, Fvi-

03 = -

13

dence (3d ed. 1940) § 918. The court was asked to

follow this procedure here, and it is not entirely

clear that it did not do so (R. 238-243). Further-

more, if on a new trial the court specifically made

Brunner its own witness, there could be no objec-

tion if the Government asked him the same ques-

tions as were asked here.

(b) It also appears, as the trial judge himself

pointed out (R. 241-242), that the Government

did not actually cross-examine since the object of

the questions was not to discredit Brunner’s testi-

mony in court, but to show affirmatively that in

testifying before the Committee he and petitioner

had attempted to conceal Brunner’s real part in

the Warr deal.

(c) The Government, despite the court’s per-

mission, did not begin its cross-examination until

Brunner had told a story which conflicted with his

testimony before the Committee.

(d) Finally, since petitioner himself testified

that he told the Committee that Brunner had very

little to do with the Warr deal because he did not

want to put Brunner on the ‘spot’? with the

Parole Board (R. 339-343), it is difficult to see

wherein he was prejudiced by the trial court’s

action.

Petitioner relies upon Young v. United States,

97 F. 2d 200, 205-206 (C. C. A. 5), in which a

conviction was reversed because the Government

was permitted to cross-examine a witness, though

it knew in advance that he would be hostile.

a

14

However, at the second trial of the case, the

witness was called by the court itself and the

Government was permitted to cross-examine in

the same fashion as before. The conviction was

then upheld. United States v. Young, 26 F.

Supp. 574 (W. D. Tex.), affirmed, Young v.

United States, 107 F. 2d 490, 492-494 (C. C. A.

5). Petitioner relies further upon United States

v. Biener, 52 F. Supp. 54 (E. D. Pa.). In that

case the court was very critical of the rule it felt

called upon to apply, and it does not seem to

have been suggested that the difficulty could be

avoided by having the court call the witness.

6. Finally, petitioner complains that the court

erred in instructing the jury that ‘‘willful’’ as

used in the statute means a deliberate and inten-

tional default, but not necessarily one committed

with an evil or bad purpose (Pet. 3, 15, 18-25).

He argues that under a proper instruction the

jury might have found that he acted in good

faith and might have acquitted him (Pet. 21).

However, petitioner offered no evidence that he

acted intentionally but in good faith. His whole

defense was that his default was unintentional,

i. e., that he either did not have the papers in

his possession or that he had overlooked them

(see, e. g., R. 327). And the trial court instructed

the jury that if they believed this explanation

they should aequit him (R. 368-372). Petitioner

introduced no evidence to show that he deliber-

15

ately withheld the documents because he believed

such action justified, and he was not entitled to an

instruction on an issue which was not in the case.

And, finally, even if petitioner’s offered instruc-

tion were correct, which we do not concede,’

he would not have been entitled to acquittal on the

evidence before the jury.

CONCLUSION

For the reasons stated, we respectfully submit

that the petition for a writ of certiorari should

be denied.

J Pum B. Per_May,

| Solicitor General.

‘oD. Vincent QUINN,

Assistant Attorney General,

Rosert S. Erpa#1, \

JosEPH M. Howakrp,

Attorneys.

JANUARY 1948.

2 We agree with the Court of Appeals’ holding that “will-

ful” is a word of many meanings and its construction must

be derived from its context (Screws v. United States, 325

U. S. 91, 101; Spies v. United States, 317 U. S. 492, 497;

United States v. Murdock, 290 U. S. 389, 394) and that the

purpose of congressional investigating committees would be

frustrated if a witness could gain virtual immunity from

prosecution by setting up his own “good faith” judgment

against that of the committee on a question of the com-

mittee’s power. Cf. Zownsend v. United States, 95 F. 2d

352, 361 (App. D. C.), certiorari denied, 303 U. S. 664.

U. S. GOVERNMENT PRINTING OFFICE: 1948