Opposition Brief — Shibley v. United States

INDEX

———_

Page

Opinion below 1

Jurisdiction ]

Questions presented 2

Statutes and rule involved_....---.-- ‘ 2

Statement 2

Argument 9

Conclusion 22

Appendix 23-25

CITATIONS

Cases:

Benton v. United States, 188 F. 2d 625 19

Colosacco v. United States, 196 F. 2d 165, 229 F. 2d 880 20

Delaney v. United States, 263 U.S. 586 9

District of Columbia v. Armes, 107 U.S. 519 10

Franklin v. United States, 216 U.S. 559 21

Griffin v. United States, 336 U.S. 704 19

Hemans v. United States, 163 F. 2d 228, certiorari

denied, 332 U.S. 810_- 21

Hollister v. United States, 145 Fed. 773 21

Kann v. United States, 323 U.S. 889 8)

N. Y. Evening Post v. Chaloner, 265 Fed. 204 10

Nye & Nissen v. United States, 336 U.S. 613 20

Pinkerton v. United States, 528 U.S. 640 20

Sharp v. United States, 195 F. 2d 997 19

Shibley v. United States, No. 14,464, June 18, 1956

(C. A. 9) 4

United States v. Cordo, 186 F. 2d 144,148 (C. A. 2), cer-

tiorari denied sub nom. Minkoff v. United States,

340 U.S. 952 19

United States v. Crowe, 188 IF, 2d 209 20

United States v. Johnson, 319 U.S. 508 2 9

United States v. Johnson, 327 U.S. 106 i7

United States v. Shibley, 112 Fed. Supp. 734 oes

395667—56 1 (I)

Bie. tp Rome WEP

II

Statutes and Rule Involved: Page

a eke asaniasanesuseechace 23

i a eeencasanesckanakene 23

3. Ge oe ae Ss ee he ere ee 20, 21, 23

ORT WAS ME. cc eee ue bees ntectseaeanace Ge ems 20, 24

BO Bi ee, ER ona ncnina ne on Sent d ee cues sc aee 20, 24

Ee NS RR eee re eee 14

Deering’s California Penal Code:

RS ee ee hoe MaMa onan ahhe & 24, 25

Ra ee a Ck GASES RES ES SORES 25

Te ead deeede as AGihateadetnls 25

Federal Rules of Criminal Procedure, Rule 33 - - ~~ --- 19

Miscellaneous:

32 C. F. R., sec. 701.2 (0) .....------------------ 13

RE ONE a inincnnncunnessos 14

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oe

Gu the Supreme Court of the United States

OcroBer TERM, 1956

No. 2438

GerorceE EK, SHIBLEY, PETITIONER

v.

Unrrep STavres of AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

1-14; 9 R. 3-14) ' is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on March 19, 1956 (Pet. App. B 15; 9 R. 15), and a

petition for rehearing was denied on May 9, 1956 (9

R. 16). On May 28, 1956, by order of Mr. Justice

Douglas, the time for filing a petition for a writ of

certiorari was extended to July 7, 1956, and the peti-

tion was filed on that date. The jurisdiction of this

Court is invoked under 28 U. 8S. C, 1254 (1).

‘The record is in 9 volumes and is not paginated consecutively

throughout.

(1)

2

QUESTIONS PRESENTED

1. Whether there was sufficient evidence to support

the verdict.

2. Whether, in the circumstances, the court’s re-

fusal to permit petitioner to introduce additional

evidence as to his alleged lack of motive constituted

prejudicial error.

3. Whether there was error in the court’s charge

to the jury.

4. Whether the court’s denial of petitioner’s motion

for a new trial upon the basis of allegedly newly dis-

covered evidence constituted an abuse of discretion.

5. Whether petitioner’s three-year sentence under

the conspiracy count was illegal.

6. Whether 18 U. 8S. C. 18 is unconstitutional be-

cause by incorporation it makes state criminal laws

applicable in areas which are situated within a state

but are under federal jurisdiction.

STATUTES AND RULE INVOLVED

The statutes (18 U. S. C. 1, 7, 13, 371, 641; Califor-

nia Penal Code, Secs. 459, 460, 461; and Rule 33,

F. R. Crim. P.) appear in the Appendix, infra, pp.

23-25.

STATEMENT

After a jury trial on a four-count indictment, peti-

tioner was convicted on two counts which charged him

and co-defendant Charles R. Thompson with (1)

receiving and converting property of the United

States, ¢. e., a copy of a transcript of proceedings of

a United States Marine Corps Court of Inquiry,

knowing it to have been stolen from the United States,

———

3

and (2) conspiracy to commit burglary in a building

reserved for use of the United States, and to steal

and receive and convert property of the United States

(counts 3 and 4, 1 R. 45, .0). Counts 3 and 4

alleged that the copy of the transcript had ‘‘a value

of over $100.00’ (1. R. 45), but under count 3

the jury found the value of the property to be ‘‘less

than $100” (7 R. 574). Petitioner was sentenced to

concurrent terms of imprisonment of one year on

count 3 and three years on count 4 (1 R. 180). On

appeal, the judgment of conviction was affirmed (Pet.

App. B. 15; 9 R. 15).

The transcript in question covered the proceedings

of a Special Court of Inquiry which was convened on

December 3, 1952, at the Marine Corps Air Station

at El Toro, California, to investigate alleged adminis-

trative irregularities in the Service Squadron of Air-

craft, Marine Forces, Pacific. The complaint which

led to the inquiry was made by petitioner following

court-martial proceedings at the Station in which peti-

tioner, as a civilian counsel, represented a serviceman-

2Counts 1 and 2 charged petitioner with aiding and abetting

codefendant Thompson to enter the Marine Air Station with

intent to commit larceny and, together with Thompson, with

stealing the transcript. On the government's motion prior to

trial, count 2 of the indictment was dismissed. The jury made

no finding on count 1 (1 R. 2-3, 84, 90, 91). R. 753, which states

that the jury found petitioner guilty on count 2, appears to be a

typographical error.

*Co-defendant Thompson pleaded guilty to count 1, which

charged him as a principal in the entering of the Air Station with

intent to commit larceny, and to the conspiracy charge in count

4 (1 R.2; 4 R. 3-4). Upon the government’s motion, counts 2

and 3 against Thompson were dismissed (4 R. 4-5).

eer

4

defendant, one Master Sergeant Bennette (4 R. 51-52;

5 R. 219, 290-291). During the Court of Inquiry’s

session from December 3 through December 12, 1952,

petitioner testified on five different days (5 R. 220)

and was held in contempt 13 times (5 R. 221).* The

transcript of the full proceedings, and copies thereof,

were completed on December 19, 1952 (5 R. 201). One

copy was placed in the filing cabinet in the legal office

at the Air Station (5 R. 199, 201-202). The following

morning, this copy was missing (5 R. 203-204). The

charges involved here arose from this taking.

The evidence adduced at the trial concerning the

cireumstances of the taking of the transcript may be

summarized as follows:

While the Special Court of Inquiry was in progress,

a marine who had been petitioner’s escort during the

Bennette court-martial, Corporal Robert Hucken-

phaler, advised petitioner that he would be glad to

assist petitioner in any way he could with respect to

the Court of Inquiry. Petitioner advised him that a

man named ‘‘Rusty’’ might contact him (4 R. 57-59).

Shortly thereafter, petitioner asked co-defendant

‘‘Rusty’’ Thompson to contact Huckenphaler. Thomp-

son did so. At that time, Huckenphaler stated to

Thompson that he would be glad to help petitioner

4 Subsequently, petitioner was indicted on the contempt charges.

He was acquitted on some counts; the jury did not bring in a

verdict on the remaining counts. Petitioner was subsequently

tried and convicted on contempt charges arising out of that trial

and sentenced to thirty days. This judgment of conviction was

affirmed on appeal but the case was remanded for reconsidera-

tion of the sentence, in view of the sentence here (SAibley v.

United States. No. 14.464, decided June 18, 1956 (C. A. 9), not

yet reported).

5

in any way he could, since he did not feel that peti-

tioner had been treated fairly; that he was working

in the legal office of the Air Station; that he had access

to certain records, copies of which he might be able

to obtain for petitioner; and that he was working on

the transcript of proceedings of the Court of Inquiry

(4 R. 59-60, 64-67, 116-118). Thompson told Huck-

cnphaler that he was working for petitioner, and

that The Judge Advocate General, certain Senators,

and Drew Pearson were interested in the outcome of

the Court of Inquiry (4 R. 65, 91). At their next

meeting, the two discussed the transcript of the Court

of Inquiry proceedings (4 R. 69, 119-120). On or

about December 12, 1952, Huckenphaler advised

Thompson that the transcript would be ready for dis-

tribution in about a week; told Thompson that a copy

would be located in a bottom drawer of a filing cab-

inet in the central office; and advised him of the loca-

tion of the central office, the plan of the building and

the location of the necessary keys (4 R. 71-74, 120-

123). During all of this time, Thompson kept peti-

tioner informed as to the details of his conversations

with Huckenphaler (4 R. 118, 120, 124).

On December 19, 1952, Thompson told petitioner

that the records would be available that mght (4 R.

125-126). When petitioner asked him if the tran-

script ‘‘ecould be gotten”, Thompson said “tyes”.

Petitioner then asked him if he had *‘‘everything

pretty well in mind”’ and told him not to forget to

wear his gloves (4 R. 126). Thompson, dressed in a

marine sergeant’s uniform, went to Huckenphaler,

who advised him that the liberty and identification

LAER TROON EDD, OO

Pa eis

6

eards which Thompson showed him would get him into

the Air Station (4 R. 75-76). Thereafter, Thompson

successfully entered the Air Station and removed

from the bottom of the filing cabinet a copy of the

transcript covering the full proceedings of the Court

of Inquiry (4 R. 128-129).

The following morning, on December 20, Thompson

brought the copy of the transcript to petitioner at

his home. Petitioner told him that he could not

keep the transcript around the house, glanced through

it, and told him that he would like a copy of it (4

R. 129, 5 R. 189). Thompson took the copy with him

and had two photographic copies made.’ The following

day, he took the transcript, the photographie copies,

and the negatives to petitioner (5 R. 173-175). Peti-

tioner told Thompson to mail the negatives to him, so

that he could have a legitimate excuse for having

them. He also told Thompson to mail one copy to

his attorney, Mr. Marshall in Los Angeles, and the

original to Drew Pearson (5 R. 178, 6 R. 401). Peti-

tioner advised the use of a Santa Ana return address,

rather than Long Beach where he lived, since such a

return address would suggest that the mail was sent by

a marine (5 R. 193). The packages were wrapped in

Christmas paper, covered with heavy paper, and

Thompson and his roommate, Pat Fields, addressed

and mailed them in accordance with petitioner’s

instructions (5 R. 179-181, 193, 236-237).

————————

‘Thompson said that the photographing cost $200 which he

obtained from petitioner's secretary on Monday, December 22

(> R. 191-192). Petitioner's secretary denied that she ever gave

the money to Thompson (5 R. 262). See further summary of her

testimony, infra, p. 9.

ps

(

After petitioner received the package addressed to

him, Thompson went to his office. Petitioner cau-

tioned him not to say anything, as he usually did

because of his suspicion that his office was wired, and

then picked up the conversation, expressing his sur-

prise at receiving the negatives of the transcript.

Thompson replied that he did not know where the

negatives came from and that petitioner had more

friends ‘‘over there’ than he thought (6 R. 401-402).°

Fields, Thompson’s roommate, testified that in

December 1952 he was Drew Pearson’s employee, and

that he participated with Thompson in the addressing

and mailing of the packages. He said that subse-

quently, when he saw petitioner on the street, he

remarked to him in passing, “Those packages that

you wanted mailed are in the mail’’. Petitioner

replied, ‘‘Thank you”, and told Fields to get out of

town for a few weeks (5 R. 235, 240; 6 R. 371).

Petitioner testified that he first met Thompson in

October 1952 (5 R. 295), when the latter was em-

° Except for the conversation between Huckenphaler and peti-

tioner, the foregoing evidence, where it directly implicated

petitioner, was provided solely by Thompson's testimony. But

other parts of the foregoing testimony were corroborated by

Huckenphaler (4 R. 58-76), by a girl who was Thompson's com-

panion on one of his visits to Huckenphaler (5 R. 241-244), by a

post oflice inspector (5 R. 224-227), and by the photographer

and emplovee who made copies of the transcript (6 R. 378-399).

When Thompson was first questioned by the police about the

stolen documents, he said that petitioner had nothing to do with

the stealing (5 R. 184).

7 Fields testified that he addressed the package to petitioner

under the name of “Shivley” (5 R. 238) but post office records

show that petitioner’s name was spelled correctly as “Shibley”

(5 R. 228).

395667—56-—

te

8

ployed by Captain Worley’s private detective agency,

which petitioner used in connection with his legal

work, and that Thompson visited his home fre-

quently as an uninvited guest (6 R. 337). Petitioner

said that when Huckenphaler talked to him and told

him that he would like to help him, petitioner dis-

couraged him, but Huckenphaler insisted and gave

his name and address. Petitioner said that he there-

after asked Thompson to see Huckenphaler, and

Thompson reported that his conversation with Huck-

enphaler netted nothing but ‘‘gossip”’ about petition-

er’s ease (5 R. 297-303, 6 R. 336). Petitioner denied

that he had ever retained Thompson in connection with

the Court of Inquiry proceedings (5 R. 303-304),

that he had ever asked Thompson to obtain a copy

of those proceedings (5 R. 305), and that he even

saw ‘Thompson on December 19, 1952 (5 R. 305).

Petitioner said that on December 20, 1952, Thomp-

son came to his home and showed him a copy of the

transcript; that, when petitioner asked him where

he had obtained it, he said that it was legal; that he

(petitioner) refused to take it; and that thereafter

he did not see that transcript (5 R. 306-307). He

denied that he requested Thompson to make copies

of it or that he or his secretary paid him to make

copies (5 R. 307-308). He denied that he had the

conversation with Fields to which Fields testified (6

R. 319-820).

Petitioner further testified that on December 24

he received a Christmas-wrapped package which con-

tained negatives of the transcript (5 R. 308-309), and

9

that subsequently, through Captain Worley’s office,

he had copies made from the negatives and mailed

them to another attorney who was representing him

(5 R. 309). He said that he did not know, then or

later, that the transcript covered by the negatives was

stolen from the Air Station (6 R. 335).

Petitioner’s secretary testified on his behalf that

in January 1953 petitioner had copies of the tran-

script made from the negatives which he received by

mail. She stated that the copies were made by

Thompson through Captain Worley’s office; that she

paid Thompson for them by check, but charged the

check to another case in the office; and that she first

learned in February 1953 that the negatives covered

stolen documents, when a corporal who had been

questioned by the Office of Naval Intelligence told her

and petitioner about it (6 R. 359-361, 360, 366-367).

ARGUMENT

1. There is no occasion for this Court to review, as

urged by petitioner (Pet. 48-54), the concurrent find-

ings of the courts below that the evidence was suffi-

cient to support the verdiet (Kann vy. United States,

323 U.S. 88, 93; United States v. Johnson, 319 U.S.

503, 518; Delaney v. United States, 263 U.S. 586, 588-

590). Petitioner does not deny that his conviction

was amply supported by the evidence if Thompson’s

testimony is taken into account. His argument, m

substance, is that Thompson's testimony should be

discounted because Thompson had once been confined

in a mental institution and because that testimony

10

was not corroborated in every detail. But the fact

that Thompson’s testimony is the only evidence which

directiy implicated petitioner certainly is no basis for

reversal. The credibility of witnesses was a matter

for the jury to determine under appropriate instruc-

tions. Such instructions were given, with a specific

caution that the testimony of Thompson, an accom-

plice, should be carefully scrutinized (7 R. 471-472,

475, 477). Defense counsel cross-examined Thomp-

son on his prior confinement for mental illness (5 R.

166-169) and this evidence was before the jury when

it considered Thompson’s credibility. Thompson’s

past mental illness did not affect his competency as a

witness and he was properly allowed to testify. Dis-

trict of Columbia v. Armes, 107 U.S. 519; N, Y. Even-

ing Post v. Chaloner, 265 Fed. 204 (C. A. 2).

2. During the trial, the court sustained the govern-

ment’s objection to certain questions addressed to Mr.

Marshall, an attorney first retained by petitioner

while the Court of Inquiry proceedings were in prog-

ress (5 R. 275-276). The defense offered to show

that Mr. Marshall advised petitioner that ‘‘if proeeed-

ings were filed against him in the Federal Court for

contempt of the Court of Inquiry that he would be

entitled to a transcript of the proceedings”? (5 R. 282-

The discrepancies in the testimony of the government wit-

nesses co which petitioner refers dealt with Thompson's negotia-

tions with the photographer in making copies of the transcript.

For example, Thompson testified that he paid the photographer on

Monday, December 22, 1952, for the photographs of the transcript,

whereas the photographer testified that he received the money on

Sunday, December 21, just after he finished the job (5 R. 191,

6 R. 396. 399).

11

283). This line of inquiry was not permitted. How-

ever, Mr. Marshall was allowed to testify that on two

oceasions after December 10 (the first of these on

December 16th or 17th) he visited the office of the

United States Attorney and was given access to a

portion of the testimony (5 R. 276-277).

Petitioner himself testified that on December 10,

1952, it was his opinion as a lawyer, based upon his

research, that he had an absolute right not only to

read, inspeet and copy the full record of the pro-

ceedings of the Court of Inquiry, but that he was also

entitled to be furnished, free of charge, a copy of the

record. He testified that he had a conference with

his attorney in which this matter was discussed (6 R.

316-317, 344). He also testified that he knew, prior

to December 19, 1952, that his attorney, Mr. Marshall,

had been permitted by the United States Attorney to

inspect the Court of Inquiry transcript and that, until

March 1953, he believed that the transcript which

Mr. Marshall inspected was a full transcript, rather

than only a portion of the transcript covering peti-

tioner’s testimony (6 R. 317-319).

The President of the Court of Inquiry testified that

petitioner requested a copy of the transcript and that

he informed petitioner that he would have to investi-

gate the legality of providing him with a transcript

before making a decision on the request (4 R. 52).

In its final instructions to the jury, the court said

(7 R. 476):

The transcript of the Court of Inquiry pro-

ceedings affecting the defendant Shibley, a copy

of which defendant Shibley would eventually

12

have been entitled to receive. However, you

are not to conclude from the fact that the de-

fendant Shibley would eventually be entitled

to such record that he or anyone else would be

entitled to unlawfully remove or conspire to

remove said record from the Marine base. Mo-

tive or absence uf motive is merely a cireum-

stance for your consideration along with all the

other facts and cireumstances in the case.

The court then went on to charge that proof of motive

was not an essential element of the crime, but that it

was valuable evidence to be considered (7 R. 476-477).

Petitioner contends (Pet. 31-385) that the court’s

refusal to permit Mr. Marshall to testify that he

advised petitioner that he had a right to the transcript

prevented him from establishing lack of motive by

independent evidence. But the offer of proof was not

that Mr. Marshall told petitioner that he had an

absolute right to the full transcript, but merely that

petitioner would have a right to the transcript if con-

tempt proceedings were instituted against him.’ The

important issue on motive, moreover, was not peti-

tioner’s rights as a matter of law but his belief as to

his legal rights. When petitioner himself testified,

he did not claim that he relied on Mr. Marshall’s ad-

vice, but rather that he reached his conclusion from

his own study of the law. The excluded testimony

had thus only a remote bearing on the issue of lack of

‘Contempt proceedings were not commenced against petitioner

until January 2s, 1953. See United States v. Shibley, 112 Fed.

Supp. T4738 OS. D. Cal.) : the acts here involved were committed

In December 1932,

13

motive, and was at most only cumulative on a matter

as to which evidence was fully presented to the jury.

3. Petitioner endeavors (Pet. 35-41) to interpret

the portion of the charge quoted above, i. e. that peti-

tioner would eventually have been entitled to receive

a copy of the “transcript of the Court of Inquiry

proceedings affecting the defendant Shibley,’”’ as a

direction to the jury that he would have been entitled

to receive only the portion of the transcript relating

to his own testimony.” It is argued that the court

thus implied a motive to secure the full transcript

illegally. Neither the precise language used, nor

normal usage and understanding, support this over-

refined contention. The words ‘‘affecting the defend-

ant Shibley”’’ described the Court of Inquiry proceed-

ings in question, and that is all. The jury was thus

told, in general terms, that petitioner would eventu-

ally have been entitled to receive a copy of the tran-

script affecting him. As the Court of Appeals stated,

his position was adequately presented to the jury

and, indeed, the charge may well have been more

favorable to petitioner than was his right.

Navy regulations (32 C. F. R., section 701.2 (b))

provide that records of Navy Courts of Inquiry are

confidential, and that the Secretary of the Navy may

* Petitioner had requested an instruction that the “transcript

of the Court of Inquiry proceedings was a public record a copy

of which the defendant Shibley would eventually have been en-

titled to receive” (7 R. 496-497). It is on the change of phrase-

ology to “transcript of the Court of Inquiry proceedings affecting

the defendant Shibley” that petitioner’s argument is based. The

argument on this aspect of the case was not held before the jury

(see 7 R. 495-497).

on

14

make such records available to persons properly and

directly concerned, whether or not litigation is in-

volved. Courts of Inquiry are not court-martial pro-

ceedings, but are special, advisory, non-judicial

inquiries of the executive branch of the government

concerning administrative matters. Such proceedings

are either closed or open depending on the convening

authority. See 50 U. S. C. 731; 25 Op. Atty. Gen.

623; 8 Op. Atty. Gen, 223, 335; United States v.

Shibley, 112 F. Supp. 734, at pp. 742-743. In this case,

the proceedings were ordered closed. Until the con-

tempt indictment was returned on January 28, 1953

(United States v. Shibley, 112 F. Supp. 734, 740), it

is doubtful that petitioner was entitled by right to

any part of the transcript. And, although petitioner

states (Pet. 40, fn. 21) that the trial court in the

Shibley contempt case ordered the government to

make the complete copy of the transcript available to

petitioner, the opinion in United States v. Shibley,

112 F. Supp. 734, 740, indicates only that the *‘pro-

ceedings before the Court of Inquiry on the dates on

which the defendant appeared, and certain documents

atiached thereto”? were tendered in the trial court in

response to petitioner’s motion for a_ bill of

particulars.

4, Petitioner filed a motion for a new trial on the

ground of newly discovered evidence (1 R. 123-126).

Attached to the motion were affidavits stating that,

although Miss Fuller (the **new’’ witness) had worked

for the Shiblevs during December 1952 and although

defense counsel learned during the trial that she was

in Thompson’s company on the night of December 19,

15

1952 (the date of the commission of the acts in

question), the defense was unaware until after the

trial that she had any information material to the

defense (1 R. 128-144),

Miss Fuller’s affidavit dated January 14, 1954,

states that, without petitioner’s knowledge, she had

been dating Thompson while she was living with the

Shibleys; that she spent the evening and night of

December 19, 1952, with Thompson; and that Thomp-

son advised her that he was going to obtain some

documents illegally but that he was protected since

he could ‘‘always pin it on someone else’’, She also

states that Thompson told her that, on obtaining the

documents, he would get a “lot of money”’ from “‘big

newspapers’; that, during the mght, ‘Thompson went

out and returned with the papers; that, later the fol-

lowing day, while she was at petitioner's home,

Thompson came to see petitioner, had an argument

with him and left; shat, still later, he told her that,

when he showed the documents to petitioner, peti-

tioner treated him like a criminal and booted him ont

‘acted

of the house; and that afterwards Thompson

like he hated George [petitioner], ike he wanted to

get George in troubb”’; and that Thompson made her

promise that she would not tell petitioner anything

about the stolen documents or that photographs of

them had been made She states that Thompson gave

her the documents, photographs and negatives to keep

in her home and tod her that, if anyone discovered

them, she could say petitioner gave them to her. She

states that she had heen questioned by the government

on this matter, and that she told the government that

16

she would not testify against petitioner and that peti-

tioner knew nothing about the documents (1 R. 145-

156).

The government filed counter-affidavits stating that,

when Miss Fuller was questioned in May 1953 by

members of the Office of Naval Intelligence, she signed

a statement declaring that in December 1952 she heard

petitioner and Thompson talk about needing some

papers from the El Toro Air Station; that, when she

was with Thompson on the night of December 19, he

told her that he was going to the Air Station to get

papers which petitioner needed; and that, when

Thompson arrived at petitioner’s house the following

day, he handed the papers to petitioner. The govern-

ment affidavits also stated that in November 1953 Miss

Fuller told Assistant United States Attorney bowler

that she absolutely refused to testify against peti-

tioner and that, when she was warned about contempt

proceedings, she replied that she was a minor and

already in custody (1 R. 158, 160-177).

A later affidavit by Miss Fuller, dated January 22,

1954, stated that she spent the evening and night of

December 19, 1952, with Thompson and that Thomp-

son picked up some papers, but that she did not know

that these papers had anything to do with petitioner.

She expressly retracted as not “true’’ prior state-

ments that she had heard an argument between peti-

tioner and Thompson and that she had seen Thomp-

son hand the papers to petitioner (8 R. 2-3).

Upon the basis of the affidavits and counter-affida-

vits, the tria! court denied petitioner’s motion (1 R.

17

178). Petitioner challenges this action as an abuse of

discretion (Pet. 41-48).

As this Court observed in United States v.

Johnson, 327 U. S. 106, where a trial judge

who conducted the trial has considered the affi-

davits and counter-affidavits on a motion for a new

trial grounded on newly discovered evidence, and has

denied the application, it is not ordinarily the fune-

tion of an appellate tribunal to review his findings.

In the Johnson ease, as in the instant one, an attempt

was made, on a motion for a new trial, to impeach the

credibility of a trial witness. This Court held (p. 111)

that it is “important for the orderly administration of

criminal justice that findings on conflicting evidence

by trial courts on motions for new trial based on

newly discovered evidence remain undisturbed except

for most extraordinary circumstances * * *."" We

submit that no such circumstances exist here.

The evidence was not newly discovered after the

trial. Huckenphaler testified that Thompson came

to his home on the night of December 19 with a girl

named Yvonne (4 R. 74). On Thompson’s redirect

examination, government counsel elicited information

that the girl who accompanied him on December 19,

1952, was Yvonne Fuller, who was living at peti-

tioner’s home (5 R. 188-189). In cross-examining

Thompson, defense counsel asked whether the young

lady who was with Thompson before he stole the docu-

ments was a narcotics addict (5 R. 171-172). After

the foregoing testimony was adduced, on Thompson’s

re-cross-examination, the following occurred (5 R.

195-196) ;

*

18

Q. Mr. Thompson, this lady whom you say

you were with that night, the night of the 19th,

that little girl was a little girl that had been

paroled to Mrs. Shibley, the young lady sitting

right here in front of me, by the Youth Author-

ity of this State?

Mr. Bow er: That is objected to as calling

for a conclusion of this witness.

THe Court: I don’t think that is proper,

counsel. You must remember there is only one

person on trial in this case now.

Mr. Bau: That is correct. Let me say this:

That little girl was working as a maid in that

home.

THe Court: Let us not discuss her.

Mr. Bau: But he tried to bring out she was

living there in Shibley’s house. We want to

show the situation.

Mr. Bower: You can’t show it by this wit-

ness. You might be able to show it by other

witnesses.

THE Court: Is she here?

Mr. Bow er: She is available, your Honor,

and we will have her here.

Mr. Bat: I won’t pursue the question then.

THE Court: I think you are getting on dan-

gerous ground, counsel.

* * * *

Petitioner thus was aware that Miss Fuller, who was

very well known to him, might have information about

the night in question, and he could have interviewed

her if he had chosen to do so.

Petitioner’s assertion that the government concealed

the exculpating testimony of an essential witness is not

founded in fact. Miss Fuller’s statements to the in-

ere

19

vestigating officers implicated rather than exculpated

petitioner, but the government did not choose to use

her as a witness because of her expressed hostility

and unwillingness to testify. Moreover, Miss Fuller’s

affidavit was ‘‘much less than enough to show any

abuse of discretion in the denial of the motion.”

United States v. Cordo, 186 F. 2d 144, 148 (C. A. 2),

certiorari denied sub nom. Minkoff v. United States,

340 U.S. 952; cf. Sharp v. United States, 195 F. 2d

G97, 998 (C. A. 6); see also Rule 33, F. R. Crim. P.

At most it tended to impeach the credibility of Thomp-

son and it was changed shortly after it was made.”

5. The conspiracy count on which petitioner was

sentenced to three years’ imprisonment charged a con-

spiracy between him and Thompson to commit (1)

the felony of burglary as defined under California law

and made applicable to lands reserved to the United

"The asserted conflict between the instant decision and the

decision in Grifin v. United States, 336 U.S. 704, is not borne

out by the facts. In @rifin, unlike this case, the evidence de-

scribed in the motion was in fact new evidence, favorable to the

defendant and known, but withheld, by the government. The

other cases cited by petitioner (Pet. 41), except for Benton v.

lnited Ntates, 188 F.2d 625 (C. A.D. C.), also involved what can

be classified as new evidence, unlike that in the instant case. In

Benton v. United States, involving alleged abuse of a minor, a

new trial was granted to permit testimony by the victim's (a twelve

year old girl's) mother which impeached the testimony of the

victim whose sole evidence implicated the defendant, The mother’s

testimony was of central and critical importance and the “special

factors” involved in the case were deemed to require a reopening

(p. 627). The court also emphasized that the motion was filed

within five days and might be granted under Rule 33, which is

“broader in scope than the limitations which have been held ap-

plicable where the motion is based on newly discovered evidence”

(tbid.).

20

States by 18 U. S. C. 13 (infra, p. 23), and (2) to

receive, conceal and convert property of the United

States, knowing it to have been stolen in violation of

18 U. 8S. C. 641 (supra). The jury returned no ver-

dict on the substantive charge of burglary contained

in count 1, and found, as to the substantive receiving

charge in count 3, that the value of the property was

less than $100. Petitioner argues that, in view of the

absence of verdict on the substantive burglary count,

nas

his conviction on the conspiracy count could have been

only for conspiracy to commit the misdemeanor of

receiving property of less than $100, with the result

that the maximum punishment which could be im-

posed under 18 U. 8. C. 371 would be one year for

conspiracy to commit a misdemeanor.

‘She jury could have concluded, quite logically, that,

while petitioner conspired with Thompson to have

Thompson commit burglary to get the transcript, peti-

tioner did not participate in the actual burglary, at

which he was not present, to the degree that would

make him an aider and abettor of the substantive

erime. Cf. Nye d& Nissen v. United States, 336 U.S.

613, 619-620. Thompson’s testimony that petitioner

asked him if he had gloves and told him not to forget

to wear them (4 R. 126) in itself would show that the

conspiracy contemplated the burglary.

The offense under the substantive aider and abettor

count (count 1) and the conspiracy count are separate

and distinct, and are punishable by separate sen-

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

643-044; United States v. Crowe, 188 F. 2d 209 (C. A.

7); Colosacco v. United States, 196 F. 2d 165, 168;

DARK PAGE &

21

999 F, 2d 880 (C. A. 10). And in any event consis-

tency in the jury’s verdict is not required. Since the

conspiracy on which petitioner was convicted was to

commit a felony as well as a misdemeanor, the three

year sentence was permissible.

6. Petitioner also challenges (Pet. 58-60) the con-

stitutionality of 18 U. S. C. 18, insofar as it is in-

volved in the conspiracy count, on the grounds that

it unlawfully delegates federal legislative powers to

the states, that it encroaches upon powers reserved to

the states, and that it is too indefinite and vague.

But all that 18 U. S. C. 13 does is to make applicable,

by adoption and incorporation, state criminal laws

which govern in the states in which federal enclaves

are located. It has been consistently held that Con-

eress, by such specifie reference and adoption, may

validly incorporate state laws into federal penal stat-

utes. Hemans v. United States, 163 F. 2d 228 (C. A.

6), certiorari denied, 332 U. S. 801; Hollister v.

United States, 145 Fed. 773, T78-779 (C. A. 8) (similar

statute involved). And see Franklin v. United

States, 216 U. 8. 559, holding that a similar claim of

unconstitutional delegation of legislative powers was

so insubstantial as not to warrant exercise of the

Court’s appellate jurisdiction.”

12 Since the California statute was in existence before the 1948

revision of the federal criminal laws (see note 2 of opinion below),

the aspect of 18 U. S. C. 13 which adopts subsequently enacted

state laws is not involved.

LEEDTHRU

99

CONCLUSION

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should be

denied.

Oscar H. Davis,

Acting Solicitor General.

Warren Ouney III,

Asistant Attorney General.

BEATRICE ROSENBERG,

IrELICIA DuBROVSKY,

Attorneys.

Avaust 1956.

DARK PAGE |

APPENDIX

The pertinent portions of the statutes and rule

involved are as follows:

-_EEDTHRU

—

18 U. 8. C. 1:

Notwithstanding any Act of Congress to the

contrary :

(1) Any offense punishable by death or im-

prisonment for a term exceeding one year is

a felony.

~ * * *

18 U.S. C. 7:

The term ‘‘special maritime and territorial

jurisdiction of the United States”, as used in

this title, includes:

* * * * *

(3) Any lands reserved or acquired for the

use of the United States, and under the exclu-

sive or concurrent jurisdiction thereof, or any

place purchased or otherwise acquired by the

United States by consent of the legislature of

the State in which the same shall be, for the

erection of a fort, magazine, arsenal, dockyard,

or other needful building.

* * * * *

18 U. S. C. 13 (Assimilative Crimes Statute) :

Whoever within or upon any of the places

now existing or hereafter reserved or acquired

as provided in section 7 of this title, is guilty

of any act or omission whieh, although not

made punishable by any enactment of Congress,

would be punishable if committed or omitted

within the jurisdiction of the State, Territory,

Possession, or Distriet in which such place is

situated, by the laws thereof in force at the

time of such act or omission, shall be guilty of

a like offense and subject to a like punishment.

(23)

24

18 U.S. C. 371:

If two or more persons conspire either to

commit any offense against the United States

or to defraud the United States, or any agency

thereof in any manner or for any purpose, and

one or more of such persons do any act to

effect the object of the conspiracy, each shall

be fined not more than $10,000 or imprisoned

not more than five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a

misdemeanor only, the punishment for such

conspiracy shall not exceed the maximum

punishment provided for such disdemeanor.

18 U.S. C. 641:

Whoever embezzles, steals, purloins, or know-

ingly converts to his use or the use of another,

or without authority, sells, conveys or disposes

of any record, voucher, money, or thing of

ralue of the United States or of any depart-

ment or agency thereof, or any property made

or being made under contract for the United

States or any department or agency thereof;

or

Whoever receives, conceals, or retains the

same with intent to convert it to his use or

gain, knowing it to have been embezzled, stolen,

purloined or converted—

Shall be fined not more than $10,000 or

imprisoned not more than ten years, or both;

but if the value of such property does not exceed

the sum of $100, he shall be fined not more than

$1,000 or imprisoned not more than one year,

or both.

Deering’s California Penal Code

See. 459:

Every person who enters any house, room,

apartment, tenement, shop, warehouse, store,

mill, barn, stable, outhouse or other building,

tent, vessel, railroad car, trailer coach as de-

fined by the Vehicle Code when the doors of such

vehicle are locked, aircraft as defined by the

Harbors and Navigation Code, mine or any

DARK PAGE B

-

EF EDTHRU

—_

25

underground portion thereof, with intent to

commit grand or petit larceny or any felony is

guilty of burglary.

* * * * *

See. 460:

Every burglary of an inhabited dwelling-

house or building committed in the night-time,

and every burglary, whether in the daytime or

night-time, commited by a person armed with

a deadly weapon, or who while in the commis-

sion of such burglary arms himself with a

deadly weapon, or who while in the commission

of such burglary assaults any person, is bur-

glary of the first degree.

Sec. 461:

Burglary is punishable as follows:

1. Burglary in the first degree: by impris-

onment in the State prison for not less than

five years.

* * * * *

Rule 33, Federal Rules of Criminal Procedure:

The court may grant a new trial to a defend-

ant if required in the interest of justice.

If trial was by the eourt without a jury the

court may vacate the judgment if entered, take

additional testimony and direct the entry of a

new judgment. A motion for a new trial based

on the ground of newly discovered evidence may

be made only before or within two years after

final judgment, but if an appeal is pending

the court may grant the motion only on remand

of the case. A motion for a new trial based

on any other grounds shall be made within 5

days after verdict or finding of guilty or within

such further time as the court may fix during

the 5-day period.

U.S. GOVERNMENT PRINTING OFFICE, 1956