Opposition Brief — Brewer v. United States

Opinion below

AS ERE AS aan eioay or ee pera pa ee

Questions presented

Statute involved

Statement

Argument

Conclusion

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CITATIONS

Cases:

Kann v. United States, 323 U.S. RR eee

Pereira v. United States, 347 U. S. 1

SS PSRAPASESSAACESEERSE EER ASDS CEA ES OES

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Miscellaneous:

Federal Rules of Criminal Procedure,

Rules 30 and 52(b)

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(1)

—

Guthe Supreme Court of the United States

OcToBeR TERM, 1955

No. 482

GrorGE WILLIAM BREWER, PETITIONER

Vv.

UnitTep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (Pet. App.

1-5) is reported at 224 F. 2d 189,

JURISDICTION

The judgment of the Court of Appeals was en-

tered on July 15, 1955 (Pet. App. 1). A petition

for a rehearing was denied on September 3, 1955.

The petition for a writ of certiorari was filed on

September 29, 1955. The jurisdiction of this Court

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

(1)

MORO IE 5

2

QUESTIONS PRESENTED

1. Whether petitioner caused a fraudulent check

to be transported in interstate commerce.

2. Whether there was reversible error in the

trial court’s charge to the jury.

STATUTE INVOLVED

18 U.S.C. 2314 provides in relevant part:

Whoever, with unlawful or fraudulent

intent, transports in interstate or foreign com-

merce any falsely made, forged, altered, or

counterfeited securities, knowing the same to

have been falsely made, forged, altered, or

counterfeited * * *

Shall be fined not more than $10,000 or im-

prisoned not more than ten years, or both.

STATEMENT

Petitioner was tried with two other defendants

under a two-count indictment charging the viola-

tion, and a conspiracy to violate, 18 U.S.C. 2314, in

that they had caused to be transported in inter-

state commerce a falsely made, forged and counter-

feited cashier’s check (R. 1-5). The case was sub-

mitted to the jury only on count 2 charging the

substantive offense (R. 128). Petitioner was

found guilty and sentenced to imprisonment for

seven years (R. 5-7). On appeal, the conviction

was affirmed (Pet. App. 5).

At the trial, the Government relied in part upon

the testimony of a fourth man, who had previously

pleaded guilty to the charges (R. 10). It produced

RT oe Se TIT:

3

evidence to show that in Dallas County, Texas,

petitioner and his co-defendants concocted a plan

to use a forged cashier’s check to secure a large

quantity of whiskey (R. 11). In furtherance of

the plan the defendants had eashier’s check forms

printed on the ‘Tulsa [Oklahoma] Bank of Com-

merce,’? a nonexistent bank (R. 12-15, 33-37).

They filled in one of these forms for the sum of

$10,117.00, using a check protector obtained by

petitioner (R. 31), and signed a fictitious name to

represent the vice president of the nonexistent

bank (R. 42, 26). They submitted this bogus

check to a Dallas liquor dealer in supposed pay-

ment for a truck-load of whiskey (R. 46, 47). The

liquor dealer deposited the check in his account in

the Fair Park National Bank of Dallas, Texas

(R. 47). That bank sent it in regular channels

throuyh the Repvblic National Bank of Dallas (R.

101, 105, 108) tu the National Bank of Commerce

at Tulsa, Oklahoma, where it was discovered that

it was a false instrument (R. 115, 116).

Petitioner offered no evidence (R. 127). His

motions to dismiss and for judgment of acquittal

were denied (R. 127, 128).

The trial court, in instructing the jury, reviewed

the count which it submitted (R. 128, 129) and

charged with respect to proof of guilt as follows

(R. 129):

The * * * three defendants * * * have

entered their pleas of not guilty which places

the burden upon the government to prove

4

their guilt as charged in the indictment by

competent evidence beyond a_ reasonable

doubt. }

A ‘‘reasonable doubt’’ is as the words im-

port a doubt which is based upon reason. If

when you come to consider the evidence of the

entire case there arises in your mind an un-

certainty as to the truth and the certainty or

uncertainty of the matters submitted, such

Will be a reasonable doubt and you should give

the defendant the benefit of it.

* * * * *

So now if you find and believe from the evi-

dence submitted to you, beyond a reasonable

doubt, that the said defendants did on or about

the time stated in said indictment transport

and cause to be transported such security as

charged, then you will find the defendants

guilty. If you have a reasonable doubt of

such, you will find them not guilty.

The court further explained the question of fed-

eral jurisdiction, specifically charging the jury

that it must find the defendants not guilty if it

found that they did not transport, or cause to be

transported, the check across the state line (R.

151). In this connection it pointed out that the

defendants would not be guilty if it appeared that

the liquor dealer or any of the banks forwarding

the check across the state line knew that it was

5

fraudulent but continued its transportation (R.

131).

In instructing the jury with regard to the credi-

bility of witnesses, the trial court identified the

CGiovernment’s witness who had previously pleaded

guilty as an accomplice whose testimony should

‘be received with caution and weighed and scruti-

nized with care by the jury”’ (R. 130, 131).

ARGUMENT

1. Mistakenly relying upon Kann v. United

States, 323 U.S. 88, and ignoring the squarely con-

trolling decision in United States v. Sheridan, 329

U.S. 379, petitioner contends (Pet. 11-17) that he

could not be convicted for causing interstate trans-

portation of the forged check because, when the

payee received credit for it, the bank became a

holder in due course and forwarded the check, not

as agent of the petitioner or the payee, but for its

own purposes. Precisely this argument—that

where the offense is causing the interstate trans-

portation of a forged check, the transportation

must be in aid of the frand—was considered and

rejected in Sheridan. There, as had been re-

peatedly emphasized in the Kann case itself (see

323 U.S. at 93, 94, 95), it was made clear that the

result in the latter (reversal of a conviction under

the mail fraud statute for failure to show that use

of the mails furthered the fraudulent scheme )

rested on the fact that the mail fraud statute pro-

hibited the use of the mails ‘for the purpose of

executing’’ a fraudulent scheme. Under the dif-

6

ferent statute involved in Sheridan and this case,

this Court held, Congress intended to exclude

forged securities, like stolen goods, from interstate

transportation, and undertook not only to prevent

frauds or the completion of frauds partially ex-

ecuted, but also to aid the states in detecting and

punishing criminals who use the channels of inter-

state commerce to delay or defeat apprehension.

See also Pereira v. United States, 347 U.S. 1.

Accordingly, it is clear in the present case that

petitioner ‘‘caused’’ the unlawful transportation

within the meaning of 18 U. 8. C. 2314. Like the

defendant in Sheridan (see 329 U.S. at 391), peti-

tioner knew that the fraudulent check would cross

state lines, since it was presented in Texas and had

ostensibly been drawn on an out-of-state bank.

See 18 U. S. C. 2; Pereira v. United States, supra,

at 9; Kann v. United States, supra, at 93. Given

these decisive facts, it makes no difference that

petitioner and his accomplices had obtained the

liquor they wanted with the forged check before

the check was sent across the state line.

2. As to the trial court’s charge to the jury

(Pet. 6-11), the record shows that when petitioner

was given the opportunity to object, he took no

exception.’ In any event, his present attempts to

find error (Pet. 6-11) are without merit. There

1 Counsel for co-defendant made only the following excep-

tion (R. 132), which petitioner does not urge:

The only one we have, we except to the action of the

Court in failing to submit our charge on circumstantial

evidence, being Charge Number One.

7

was no need to charge on what constituted a fraud-

ulent security (Pet. 6-7), for there was no dispute

that the check on a nonexistent bank was such a

security. The judge did charge that, if the jury

had a reasonable doubt as to petitioner’s guilt,

they should acquit (compare Statement, sw pra,

p. 4, with Pet. 9). And the charge that Standish

was an accomplice was obviously proper, since his

own testimony showed him to be such. It is frivo-

lous to argue, as petitioner does (Pet. 10-11), that

this warning to treat accomplice testimony warily

—a caution given for petitioner’s protection—sug-

gested the other defendants’ guilt because ‘“‘accom-

plice’”’ necessarily implies other participants.

Since there was in the charge no error affecting

substantial rights, the court below properly re-

fused to consider on appeal the general criticism

directed broadly at the charge as a whole. Rules

30 and 52(b), Federal Rules of Criminal Pro-

cedure.

CONCLUSION

It is respectfully submitted that the petition for

a writ of certiorari should be denied.

Stmon E. Sosexorr,

Solicitor General.

WarrREN OLNEY III,

Assistant Attorney General.

BEATRICE ROSENBERG,

JuLia P. Cooper,

Attorneys.

NoveMBER, 1955.

wus. GOVERNMENT PRINTING OFFICE: 1955 364919 5358

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