Respondents Brief in Opposition — Margoles v. United States (No. 473)

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INDEX

Page

Opinions below et Ry, ee er nae 1

Jurisdiction ..... ....... ieee: . oigeehs 1

Questions presented it at ; 2

Statutes involved — . # :

Statement __. ‘ 3

Argument... ....

Conclusion NT Da Rie ak eel be: ee 10

CITATIONS

Cases:

Cammer v. United States, 350 U.S. 399. 9

Dunn v. United States, 284 U.S. 390 ‘3 8

Sherman vy. United States, 356 U.S. 369 7-8

Sorrells v. United States, 287 U.S. 135 x

United States v. Manton, 107 F. 2d 834, certiorari

denied, 309 U.S. 661. . 10

Statutes and Rules:

Act of March 2, 1831, 4 Stat. 487 . 8,9

Title 18, U.S.C. .

Section 206 2.4.8

Section 401... re 9

Section 1505 ; 2, 1, 8,9, 10

Federal Rules of Criminal Procedure:

Rule 36 ............ > ceidiadiesasies 5

4u the Supreme Court of the United States

OCTOBER TERM, 1961

No. 473

MILTON MARGOLES, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. 9a-12a)

has rot yet been reported. The opinion of the district

court (Pet. la-8a) is not reported.

JURISDICTION

The judgment of the court of appeals (Pet. 13a)

was entered on June 29, 1961. A petition for rehear-

ing was denied on September 7, 1961 (R. 8). The

(1)

9

_

petition for a writ of certiorari was filed on October

5, 1961. The jurisdiction of this Court is invoked

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

QUESTIONS PRESENTED

1. Whether the petitioner was entrapped as a

matter of law.

2. Whether the allegedly inconsistent jury verdicts

can stand in the circumstances of this case.

3. Whether an attempt to bribe a judge of a district

court to change a sentence is a violation of 18 U.S.C.

1503. |

STATUTES INVOLVED

Section 206 of Title 18, U.S.C., provides:

Whoever, directly or indirectly, gives or offers

any money or thing of value, or any promise or

agreement therefor, or any other bribe, to any

judge, juror, referee, arbitrator, appraiser, as-

sessor, auditor, master, trustee, receiver, United

States Commissioner, or other person authorized

by any law of the United States to hear or deter-

mine any question, matter, cause, procecding, or

controversy, because of or with intent to influence

his action, vote, opinion, or decision thereon, shall

be fined not more than $20,000 or imprisoned

not more than fifteen years, or both; and shall

be disqualified from-holding any office of honor,

trust, or profit under the United States.

Section 1503 of Title 18, U.S.C., provides:

Whoever corruptiy, or by threats or force, or

by any threatening letter or communication, en-

3

deavors to influence, intimidate. or impede any

witness, in any court of the United States or

befcre any United States commissioner or other

committing magistrate, or-any grand or petit

juror, or officer in or of any court of the United

States, or officer who. may he serving at any

examination or other prececding before any

United States commissioner or other committing

magistrate, in the discharge of his duty, or

injures any party or witness in his’ person

or property on account of his attending or

having attended such court or examination before

such officer, commissioner, or other committing

magistrate, er on account of his testifying or

having testified to anv matter pending therein,

or injures nny such grand or petit juror in his

person or property on account of any verdict or

indictment assented to by him, or on account of

his being or having been such juror, or injures

any such officer, commissioner, or other commit-

ting magistrate in his person or property on

account of the performance of his official duties.

or corruptly or by threats or force, ov by any

threatening letter or communication, influences,

obstructs, or impedes, or endeavors to influence,

obstruct, or impede, the due administration of

justice, shall be fined not more than S5,.000) or

imprisoned not more than five vears, or both.

STATEMENT

Petitioner was charged in three counts of two

indictments, returned in the Eastern District of

Wisconsin, with offenses arising out of his attempt

illegally to obtain a suspended sentence in an internal

4

revenue case. The first indictment charged that pe-

titioner, on July 12, 1960, indirectly offered District

Judge Robert E. Tehan a $5,000 government bearer

bend with the intent to influence the judge’s action,

in violation of 18 U.S.C. 206, supra (A. 17).' Count

I of the second indictment charged that petitioner, on

July 12, 1960, corruptly endeavored to influence the

official action of an officer of a United States court,

Judge Tehan, in violation df 18 U.S.C. 1503, supra

(A. 2-3). Count II of the second indictment charged

that petitioner, on July 12, 1960, corruptly endeavored

to obstruct the due administration of justice, in vio-

lation of 18 U.S.C. 1503 (A. 3). The indictments

were consolidated for trial (A. 1). A jury found

petitioner not guilty on the first indictment, and guilty

-on both counts of the second indictment (A. 184).

Petitioner was sentenced to concurrent terms of 5

years’ imprisonment to be served consecutively to a

one year sentence previvusly imposed for the internal

revenue violations. He was also fined $5,000 (A. 7,

185).

The facts may be summarized as follows:

The petitioner is a doctor and staff physician in a

Milwaukee hospital. On June 3, 1960, Judge Robert

E. Tehan of the Eastern District of Wisconsin had

sentenced the petitioner to one year’s imprisonment on

a plea of nolo contendere to charges of criminal vio-

lations of the internal revenue statutes (A. 20-21).

1 Petitioner’s appendix in the court of appeals will be

designated as “A.”, The government’s appendix is desig-

nated as ‘“Govt.”.

Under Rule 35, F.R. CrimP., the judge could reduce

the sentence within 60 days after it was imposed (see

A. 21, 28).

On June 28, 1960, a Mr. Pikofsky, who had known

petitioner for 25 years, approached Mr. Ear] Villmow,

who was a friend of the judge’s son (Robert Tehan,

Jy.), and asked Mr. Villmow to talk to the son in

behalf of petitioner (A. 24, 45, 100-102). Mr. Vill-

mow and the judge’s son reported to the judge the

fact that the approach had been made (A. 21, 24,

46). The judge told Villrnow to keep the matter con-

fidential (A. 46), and subsequently contacted the

Federal Bureau of Investigation and the Internal

Revenue Service (A. 22, 47).

On June 30, and again on July 2, Mr. Pikofsky in-

quired of Mr. Villmow whether he had spoken to the

judge’s son and Villmow said he had not done so (A.

25, 46). Actually, on July 2, Villmow did see the

younger Tehan who suggested that Villmow take the

attitude of “what’s in it for me” (A. 48). In the

evening of July 2, Villmow saw Pikofsky and was

present when Pikofsky made arrangements by tele-

phone to see petitioner that night (A. 49-80).

Pikofsky, after talking with petitioner (A. 103-104),

told Villmow that petitioner wanted to talk to him

(A. 26, 104). Pikofsky repeated the request that

Villmow call petitioner on July 4 (A. 26).

On July 3, F.B.I. agents asked Villmow to cooperate

with them (A. 51). After receiving the call from

Pikofsky on July 4, Villmow called the F.B.I., who

instructed him to call the petitioner and find out why

petitioner wanted to talk to him (A. 52). Villmow

6

and petitioner arranged to meet the following day

(A. 28). The F.B.I. instructed Villmow that under

no circumstances was he to suggest anything to the

petitioner, but was just to meet and let petitioner tell

him the purpose of the meeting (A. 29).

Villmow met petitioner at a park at 9:30 p.m., on

July 5 (A. 28-29). Petitioner told him of the many.

people whom he had asked to intercede with the judge

to have his sentence changed, but with no success (A.

31). Petitioner said that he was going ahead with

a “no-holds-barred effort’? to have his sentence su-

spended (A. 31). Petitioner offered to put $5,000 in

escrow or with a third party to be held until sentence

was suspended, and to pay another $5,000 within

10 days after he received a suspended sentence (A.

32). After a series of further calls and meetings, the

petitioner, on July 12, 1960, gave Villmow a $5,000

government bearer bond to be given to Judge Tehan

and agreed to give Villmow $5,000 for Villmow and

Tehan Jr., after the sentence was suspended (A. 27-

42). From July 4 to July 12, Villmow’s telephone

calls to petitioner were in the presence of F.B.I.

agents and the meetings were under surveillance by

the F.B.I. (A. 71-80, 89). |

On July 15, 1960, F.B.I. agents went to petitioner’s

office in the hospital and informed him that there was

a warrant out for his arrest (A. 80, 92-93). The

petitioner was excused to perform an emergency

operation (A. 93). Another F.B.I. agent saw petition-

er leave by the back fire escape and go into a nearby

house (A. 9Q) where he was subsequently arrested

(A. 94).

7

Petitioner testified that he gave the bearer bond to

Villmow to hire an attorney and that he cautioned

Villmow to do “nothing wrong” (A. 114, 115). He

said that he did not understand at first that the judge

was to receive the money (A. 115), but admitted that

he did understand that the judge would receive

$5,000, prior to the time petitioner turned over that

sum to Villmow (A. 121; Govt. 183-184). He testified

that he left the hospital by the back fire escape be-

cause the arresting officer would not let him change

his clothing before going to the marshal’s office (A.

123, 142).

ARGUMENT

1. Petitioner contends that his defense of entrap-

ment was established as a matter of law (Pet. 16-19).

The fact is that there was clearly no entrapment at:

all in the legal sense, much less an issue which should

have been decided by the judge without submission to

the jury. Petitioner may have been induced and en-

couraged by his friends to commit this crime but the

government played no such role. Pikofsky approached

Villmow on June 28 and met petitioner on July 2

before the F.B.I. agents saw Villmow on July 3. The

agents told Villmow not to suggest anything, but to

let petitioner make the approaches. Certainly, Judge

Tehan did not in any way originate or encourage the

scheme. In short, the government merely allowed the

plan conceived by petitioner and his friends to pro-

ceed—as it did. This is not entrapment. The govern-

ment did not originate, manufacture, or instigate the

criminal design. Cf. Sherizan v. United States, 356

8

U.S. 369; Sorrells v. United States, 287 U.S. 435,

441-442. In submitting the issue to the jury, the trial

judge accorded petitione: his full rights.

2. Petitioner argues that, since the basic facts were

admitted, the verdicts of acquittal on the bribery in-

dictment and conviction on the second indictment were

inconsistent because the only jury issue on all charges

was the defense of entrapment (Pet. 11-16). Recogniz-

ing that this question may be controlled by the decision

in Dunn v. United States, 284 U.S. 390, he requests

the Court to re-examine Dunn (Pet. 12). There is no

occasion for such reexamination, for the verdict in

this case is not necessarily inconsistent. The jury may

have decided that, in the circumstances of this case,

Judge Tehan was not or could not have been bribed

and thus petitioner was not guilty of the crime defined

under 18 U.S.C. 206, supra, p. 2, but that peti-

tioner was guilty of ‘endeavoring’ to influence the

court or obstruct justice under 18 U.S.C. 15038, supra.

There is another reason why the acquittal on the

bribery count does not show that the jury credited

the defense of entrapment. As the court below point-

ed out (Pet. App lla), the acquittal on one indict-

ment may well have been the result of feelings of

compassion.

8. Petitioner argues that a federal judge is not

an “officer in or of any court of the United States”

within the purview of 18 U.S.C. 1503, and therefore

that petitioner’s acts were neither a corrupt endeavor

to influence an officer of the court nor an obstruction

of justice. His argument is based on the fact that the

Act of March 2, 1831, 4 Stat. 487, was the pre-

9

decessor of both the present contempt statute (18

U.S.C. 401)? and the obstruction of justice statute

(18 U.S.C. 1503). Section 1 of the 1831 Act defined

acts constituting contempt which were punishable

summarily, and Section 2 defined acts constituting

obstruction of justice. Petitioner argues that, as used

in Sectign 1, “officer” could not mean a judge since

a judge could not be in contempt of his own court,

and therefore “officer” as used in Section 2 (the

predecessor of 18 U.S.C. 1503) should also be read

as not to include a judge. The fact, however, that a

particular kind of officer of the court, a judge, might

never or rarely be in contempt does not show that

Congress did not mean the term “officer” to include

judges in other contexts. I'he plain meaning of the

word includes judges as officers of a court, since they

are so appointed and empowered. Thus, there was

clear basis for this Court’s inclusion of judges in the

category of officers of the court, together with court

personnel, in Cammer v. United Statcs, 350 U.S. 399,

405.

In any event, as the court below held, an attempt

to bribe a judge is an “obstruction of the due ad-

*“A court of the United States shall have power to

punish by fine or imprisonment, at its discretion, such

contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so

near thereto as to obstruct the administration of

justice;

(2) Misbehavior of any of its officers in their official

transactions;

(3) Disobedience or resistance to its lawful writ,

process, order, rule, decree, or command.”

?

: 10

ministration of justice,” as charged in Count II (Pet.

App. 12a). There is no reason to limit this general

concluding phrase in Section 1503 to obstructions

relating to the particular classes of individuals pre-

viously enumerated in that section, e.g., witnesses,

jurors, officers. Hence, even if, as petitioner contends,

judges are not “officers” under that section, there was

still in this case an obstruction of justice. See

United States v. Manton, 107 F. 2d 834 (C.A. 2),

certiorari denied, 309 U.S. 664. Either count under

18 U.S.C. 1503 supports the verdict.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ARCHIRALD Cox,

Solicitor General.

HERBERT J. MILLER, JR.,

Assistant Attorney General.

BEATRICE ROSENBERG,

THEODORE GEORGE GILINSKY,

Attorneys.

OCTOBER 1961

Wl oO. S. GOVERNMENT PRINTING CFFICE; 1961 617265 515