Opposition Brief — Robinson v. United States

INDEX

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3

5

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19 & Go 09 0D

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CITATIONS

j Cases :

i Blumenthal v. United States, 158 F. 2d 883, affirmed, 332

2 2 FPP errr oe er yes Or:

Borgia v. United States, 78 F. 2d 550, certiorari denied,

Be ee GH GOD. ov kas cad naa cen Coe beeee ee ee

Caldwell v. Parker, 252 U. 8. 376............. eas 6

Caminetti v. United States, 242 U. S. 470.............

Coleman v. Tennessee, 97 U.S. 509....... 2... ee

: Dunn v. United States, 284 U. 8S. 390..................

Franklin v. United States, 216 U. . 559... ...... 0.2...

q Kennedy v. Sanford, 166 F, 2d 568, certiorari denied, 333

Se Baar yee tev. Hesyy ee ieee yh eyes

Manon, He wards, BOG We Wi Be. cas cis bank x naes cat

mene ve, Fuabnaas, BD Fy We Ge vee each Ue os ae kaweke

Pinkerton v. United States, 328 U. S. 640..............

Guivin, Be: wares, GET Ge Gi Bis ois ie ia ces aes -

Raffel v. United States, 271 U. 8. 494................

Batinger wv. Loeiest, B65 U. G. GBB. . ow... ccc eecenes

Sealfon v. United States, 332 U. 8. 575..

United States v. Canella, 63 F. Supp. 377, affirmed, 157

ef | BRE ee pins unr 8 Oe

Viereck v. United States, 139 F. 2d 847, certiorari denied,

ee Ws he PU oon doh AGA ee eee

i

IONwDNS »

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United States Constitution:

Fifth Amendment .... Peel ee ne BO 7

Statutes and Rules:

Criminal Code, Section 35(a) 18 U.S.C. (1946 ed.) 80. . 2

Rule 18, F. R. Crim. P., and note of Advisory Commit-

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Inthe Supreme Court of the inited States

OctToBER TERM, 1949

Nos. 222 and 223

JouHN S. BLEKER, JR., AND RaLpH L. RoBInson,

PETITIONERS

Vv.

THE UNITED STATES OF AMERICA

ON PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT reg

m

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (Tr. 1553-

1563) is reported at 175 F. 2d 4.

JURISDICTION

The judgments of the Court of Appeals were

entered May 26, 1949 (Tr. 1564, 1565), and peti-

1 The record is in nine volumes. Volume I is labeled “Clerk’s

Record,” Volumes II-VIII contain the transcript of the trial

proceedings, and Volume IX contains the proceedings in the

Court of Appeals. Volumes II-IX are not paginated consecu-

tively to Volume I. References to that volume are designated

CR. and references to the succeeding volumes are designated

Tr.

(1)

2

tions for rehearing were denied June 29, 1949 (Tr.

1566). The petition for writs of certiorari was

filed July 29, 1949. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1). See also

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

QUESTIONS PRESENTED

The principal questions presented are:

1. Whether petitioner Robinson, a marine offi-

cer, was subject to trial by a civil court.

2. Whether cross-examination of petitioner Rob-

‘inson relating to pre-trial statements he had made

to investigating officers constituted reversible error.

3. Whether petitioners’ acquittal on the conspir-

acy count of the indictment rendered their con-

victions on substantive counts void.

4. Whether a District Court sitting in one divi-

sion of a district has jurisdiction to try defend-

ants on an indictment returned by a grand jury con-

vened in another division of the same district.

5. Whether the court prevented cross-exami-

nation of a government witness by petitioner Rob-

inson’s counsel.

STATUTE INVOLVED

Section 35(A) of the Criminal Code, 18 U.S.C.

(1946 ed.) 80, provided:

Whoever shall make or cause to be made or

present or cause to be presented, for payment

or approval, to or by any person or officer in

3

the civil, military, or naval service of the

United States, or any department thereof, or

any corporation in which the United States

of America is a stockholder, any claim upon or

against the Government of the United States,

or any department or officer thereof, or any

corporation in which the United States of

America is a stockholder, knowing such claim

to be false, fictitious, or fraudulent; or who-

ever shall knowingly and wilfully falsify or

conceal or cover up by any trick, scheme, or de-

vice a material fact, or make or cause to be

made any false or fraudulent statements or

representations, or make or use or cause to be

made or used any false bill, receipt, voucher,

roll, account, claim, certificate, affidavit, or

deposition, knowing the same to contain any

fraudulent or fictitious statement or entry in

any matter within the jurisdiction of any de-

partment or agency of the United States or of

any corporation in which the United States of

America is a stockholder, shall be fined not

more than $10,000 or imprisoned not more than

ten years, or both.

STATEMENT

On August 21, 1946, a grand jury for the South-

ern District of California, convened at Los An-

geles in the Central Division, returned an indict-

ment in four counts against petitioners and one

Robert S. Gleason for offenses alleged to have been

committed in the Southern Division of the District

Court for the Southern District of California (CR.

2-17). Count one charged a conspiracy between

4

petitioner Bleker, who was a major in the United

States Marine Corps Reserve and Post Exchange

Officer at Camp Pendleton, Oceanside, California,

petitioner Robinson, a captain in the United States

Marine Corps Reserve and assistant to Bleker,

Gleason, a civilian employed at the post exchange

as office manager, and others unknown, to defraud

the United States by depriving it of the honest,

conscientious, faithful, and disinterested services

of petitioners in the discharge of their duties and

by impairing, obstructing, and defeating the law-

ful functions of the Army, Marine Corps, and Navy

in supervising the sale of merchandise of post ex-

changes, and to violate Section 35(A) of the Crimi-

nal Code (18 U.S.C. (1946 ed. 80) by knowingly and

wilfully concealing and covering up material facts

within the jurisdiction of such departments and

agencies of the United States by trick, scheme and

device and by making and causing to be made false

statements and representations in matters within

the jurisdiction of those agencies (CR. 2-11).

Count two alleged that during March and April

1946, the defendants knowingly and wilfully

concealed and covered up from the United

States Marine Corps the fact that one Dave Rose,

a civilian dealer, agreed to pay and did pay to the

defendants the sum of $8,146.90 as one-half of his

profits in the resale of certain watches which had

been sold to him by the Camp Pendleton Post Ex-

change and that the defendants concealed and cov-

ered up this fact by the trick, scheme, and device

5

of making entries on the books and records of the

post exchange representing that the watches were

sold to Rose at a total price of $38,174, and failing

to record the sum of $8,146.90 as a part of the price,

in violation of Section 35(A) of the Criminal Code

(CR. 12-13). Count three alleged that the defend-

ants knowingly and wilfully concealed and covered

up from the United States Army the fact that cer-

tain equipment purchased from the Los Angeles

Port of Embarkation Post Exchange for $1,675.25

was purchased for their own benefit and resale,

and not on behalf of or for use of the Camp Pendle-

ton Exchange, and that the defendants covered up

and concealed this fact by various tricks, schemes

and devices, among which were the use of a certifi-

cation to the Los Angeles Port of Embarkation

Post Exchange that the equipment was purchased

for use at Camp Pendleton, the issuance of a Camp

Pendleton purchase order covering the equipment,

the destruction of the Camp Pendleton’s copies of

such purchase order, and the making of an entry

in Camp Pendleton’s records that such purchase

order was void (CR. 13-16). Count four alleged

that the defendants knowingly and wilfully made

and caused to be made a false and fraudulent cer-

tification, in a matter within the jurisdiction of

the Army, that certain equipment purchased by

defendant Robinson from the Santa Ana Air Base

Post Exchange was for the establishment or main-

tenance of his own business or for his own personal

use and not for resale, and that such certification

6

was false and fraudulent in that Robinson pur-

chased the equipment for resale by the defendants

to civilian dealers not authorized to purchase it

directly from the post exchange (CR. 16-17).

Prior to trial, Gleason withdrew his plea of not

guilty and entered a plea of guilty to counts two and

three (CR. 134-135). After trial in the Southern

Division (see CR. 132-133, Tr. 2), Bleker was

found guilty on count three and not guilty on counts

one, two, and four; Robinson was found guilty on

counts two, three, and four and not guilty on count

one (the conspiracy count) (Tr. 1544). Bleker

was sentenced to pay a fine of $5000, and Robinson

was fined $5000 on counts two and four and sen-

tenced to one year imprisonment on count three

(CR. 314-317). The convictions were affirmed on

appeal (Tr. 1564, 1565).

ARGUMENT

After careful consideration of the lengthy record

and the many errors assigned by petitioners sepa-

rately, the Court of Appeals properly concluded

that no error existed as to either petitioner. Peti-

tioners raise no point of substance before this

Court and there is no occasion for further review.

While numerous questions are assigned by peti-

tioners (see Pet. 13-18), the argument is devoted

only to a limited number of them and principally

concerns petitioner Robinson.

1. Petitioner Robinson contends (Pet. 22-37)

that, being a member of the armed forces, only a

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7

court martial, not a civil court, had jurisdiction

to try him for ‘‘offenses or acts within his duties’

(Pet. 22). He relies, rather curiously, on the por-

tion of the Fifth Amendment which provides

No person shall be held to answer for a capi-

tal, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger * * *,

and he asserts that the question has never been

decided by this Court (Pet. 28-29). He is clearly

in error, for this Court has repeatedly held that

civil courts have concurrent jurisdiction with

courts-martial over offenses denounced, as here, by

both the Articles of War and the criminal laws of

the United States. Lower courts have also so held.

Ex parte Quirin, 317 U. 8. 1, 25-27; Caldwell v.

Parker, 252 U. 8. 376; Franklin v. United States,

216 U. 8. 559; Ex parte Mason, 105 U.S. 696; Cole-

man v. Tennessee, 97 U. 8. 509; Kennedy v. San-

ford, 166 F. 2d 568 (C. A. 9), certiorari denied,

333 U. S. 864; United States v. Canella, 63 F. Supp.

377 (S. D. Cal), affirmed, 157 F. 2d 470, 482

(C.A. 9).

2. Petitioner Robinson contends that his cross-

examination by the Government was improper and

a denial of due process (Pet. 30-34). The record

reflects that after the direct examination of Robin-

son, government counsel on cross-examination

asked him whether he had made certain inconsist-

8

ent oral statements to investigating officers on a

prior occasion (Tr. 1339-1345). Counsel for peti-

tioner objected to this line of questioning and re-

quested opportunity to show that any admissions

made by petitioner were involuntary. The court

held that such questioning was proper cross-exam-

ination and overruled the objection, but with leave

to petitioner, if the occasion should arise, to show

on redirect examination the circumstances under

which the statements were made (Tr. 1342). After

the conclusion of the cross-examination, counsel for

petitioner was allowed to show on redirect exami-

nation the circumstances of the interview with the

investigating officers (Tr. 1397-1402). At no time

was any prior statement offered in evidence or even

marked for identification. Petitioner was at lib-

erty, on his cross-examination, to admit, deny, or

explain any statements he had made before trial

and his answers were binding on the Government.

We think the District Court was right in holding

that this use of petitioner’s statement, solely for

impeachment purposes, was proper and that it in

no way deprived petitioner of any rights guaran-

teed by the Fifth Amendment. See Caminetti v.

United States, 242 U. S. 470, 494; Raffel v. United

States, 271 U. S. 494, 497-499; Viereck v. United

States, 139 F. 2d 847, 851 (C.A. D.C.), certiorari

denied, 321 U. S. 794.

3. There is no merit in petitioners’ contention

(Pet. 36) that the jury’s finding of not guilty on

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9

the conspiracy count required acquittal on the sub-

stantive counts, under the principle of res judicata.

Each count in an indictment is regarded as a sepa-

rate offense and even if the same evidence is offered

in support of each, an acquittal on one could not

be pleaded as res judicata of the other. Dunn Vv.

United States, 284 U. 8. 390.2 It is settled too that

“the commission of the substantive offense and a

conspiracy to commit it are separate and distinct

offenses.’’? Pinkerton v. United States, 328 U. S.

640, 643.

Petitioners rely solely on Sealfon v. United

States, 332 U. 8. 575, in support of this contention.

However, in that case, too, it was recognized that

the commission of the substantive offense and a con-

spiracy to commit it are separate and distinct of-

fenses. The ruling that the acquittal, on the indict-

ment for conspiracy to defraud by presenting false

invoices, was res judicata as to a second indictment

for aiding and abetting the publishing of the same

false invoices was, as the court below correctly

pointed out, based on vitally different circum-

stances from those in the instant situation. The

crux of that case at the second trial was an alleged

agreement necessarily found in the first trial to

have been non-existent. There is no similar incon-

sistency here between the absence of a conspiracy

2 The Court of Appeals found there was sufficient evidence

to convict Bleker on count 3, and “as to Robinson it may be

said that there was a great abundance of evidence to support

the verdict as to each count upon which he was convicted”

(Tr. 1557).

10

and the individual commission of the substantive

offenses.

4. Petitioners also claim (Pet. 38-39) that the

trial court was without jurisdiction to try them

because they were indicted by a grand jury sitting

in another division of the Southern District of Cali-

fornia. It is settled, however, that a grand jury

sitting in any division of a multiple-division district

may lawfully indict for crimes committed any-

where in the district. Salinger v. Loisel, 265 U.S.

224, 237. All that is required is that the trial be

held in the division where the offense was commit-

ted. See Rule 18, F. R. Crim. P. and note of the

Advisory Committee; Borgia v. United States, 78

F. 2d 550 (C.A. 9), certiorari denied, 296 U.S. 615;

Mizell v. Vickrey, 36 F. 2d 327 (C.A. 10).

5. Petitioner Robinson further contends (Pet.

41-42) that the trial court required his counsel

to cross-examine Colonel Selden, a witness for the

prosecution, at a time when the greater part of

Selden’s testimony had been received in evidence

only as against petitioner Bleker, and denied the

right to cross-examine Selden when the testimony

previously limited to Bleker was, on motion of the

Government, admitted against both petitioners.

This contention is contrary to the facts disclosed

by the record.

The record shows that Colonel Selden was called

as a witness by the prosecution and testified without

limitation except as to two conversations between

—7—V~"

1l

him and Bleker (Tr. 2-37). At the conclusion of

the direct examination and cross-examination by

Bleker’s counsel, the court asked Robinson’s coun-

sel whether he desired to cross-examine the witness.

Robinson’s counsel stated that he had no desire to

cross-examine the witness concerning anything ad-

mitted against Robinson but that he might wish to

cross-examine him later if the portions of his testi-

mony limited to Bleker should thereafter be admit-

ted against Robinson. The court stated that coun-

sel must conduct his cross-examination before the

witness left the stand and that if he did not do so

the witness would not be called back later unless

counsel wanted to make him his own witness; the

court observed that the case could not be tried piece-

meal. (Tr. 65-66). The record thus clearly indi-

cates that Robinson was given full opportunity to

cross-examine the witness. At the conclusion of

the Government’s case, when certain portions of

Selden’s testimony previously limited to Bleker

were admitted as against Robinson (Tr. 914-922),

no request was made by counsel for Robinson for

permission to cross-examine Selden. In these cir-

cumstances, Robinson cannot now be heard to com-

plain that he was deprived of his right to cross-

examine the witness. Blumenthal v. United States,

158 F. 2d 883, 891 (C.A. 9), affirmed, 332 U. S. 539.

12

CONCLUSION ,

For the foregoing reasons, we respectfully sub- ©

mit that the petition for writs of certiorari should —

be denied. ;

< Puur B. Pertmay,

Solicitor General.

ALEXANDER M. CAMPBELL,

{ Assistant Attorney General.

Rosert 8. ERDARL,

JOHN J. O’KEESFE,

Attorneys.

d

SEPTEMBER 1949.

Tw. S. GOVERNMENT PRINTING OFFICE: 1948 o5e877 18