Reply Brief — Margoles v. United States (No. 473)

IN THE

Supreme Court of the United States

Gd peek ii

MILTON MARGOLES.

i

UNITED STATES OF AMERICA.

REPLY TO MEMORANDUM FOR THE

UNITED STATES

/ IN THE

Supreme Court of the United States

OcroBER ‘TERM, 1961

No. 473

MILTON MARGOLES,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

,

~ E

PB S

_ REPLY TO MEMORANDUM FOR THE

UNITED STATES

The Government's statement of facts, a condensation of

the statement submitted by the Petitioner, distorts by

omission many of the salient facts of this case. While

the Government notes that Bob Tehan, Jr., suggested to

Villmow, on July 2, that Villmow take the attitude of

‘‘what’s in it for me,’’ in speaking to Pikofsky, it does

not mention the full scope of young Tehan’s and Villmow’s

plan. It does not indicate that this plan was devised prior

to the time that Villmow went te VPikofskyv’s home on

July 2, and also prior to the time that Pikofsky first

called Margoles. Bob Tehan, Jr, and Villmow agreed

that Villnow should impress Pikofsky with the fact that

he was friendly with the Judge. Villmow, however, was

to indicate that he (Villmow) would not do anything for

friendship alone, and that he wanted to know what was

in it for him. Nor were young’Techan and Villmow dealing

in generalities, for Villmow was to draw a ‘firm proposal’

from Pikofsky. The Court may also note that all this

was decided by Bob Tehan, Jr, and Villmow immediately

subsequent to voung Tehan's telling Villmow that the

¥.B.L. had informed Judge Tehan that nothing was ex-

fected to come of the matter. (App. 47-49) Thus, when

Villmow spoke to Pikofsky later that day he informed

him that he had not spoken to Bob Tehan, Jr., and that

Bob was such a good friend of his that he was afraid

he might be saerificing his friendship if nothing came

of it. (App. 56) The Govermment states, in its memo-

randum, that ‘*Pikofsky, after talking with petitioner

(A. 103-104), told Villmow that petitioner wanted to talk

to him (A. 26, 104).°’ (Memorandum, p. 6) Pikofsky never

testified to such a facet. He testified that when he spoke

to the petitioner on July 2, the petitioner said, ‘‘T will come

over to see You on the way home this evening.’’ (App.

103) That evening he told the petitioner about Villmow,

end that ‘Mr. Villmow will call him, and that was all.’’

(App. 104) Villmow testified that Pikofsky called him on

the might of the 2nd and told him to call the petitioner on

July 4, ‘*that the doctor wanted to talk’’ to him, (App. 26)

But, whatever Pikof-ky allegedly told Villmow to the con-

trary notwithstanding, there is absolutely no evidence that

the petitioner wanted to speak to Villmow in the sense that

the Government implies. And the absolute proof of the

contrary is demonstrated by the fact that in the days inter-

vening between Pikofsky's and Margoles’ meeting on July

2, and Villmow’s call to the petitioner on July 4, not one

vw

effort was made by the petitioner to contact Villmow, al-

though if the Government’s major premise is correct, the

petitioner was well aware of Villmow and his abilities at

the time.

The Government also apparently relies on the fact that

the agents of the F.B.I. instructed Villmow, before his first

meeting with the petitioner, that under no circumstances

was he ‘o Suggest anything to the petitioner, ‘‘but he was

just to meet and let petitioner tell him the purpose of the

meeting.’? (Memorandum, p. 6) The relevancy of this

‘*self-serving’’ declaration is minimal at most. The Court

is concerned with what Villmow did, not with what he was

allegedly instructed not to do. And there is no explanation

as to why Villmow told the Grand Jury that it was he who

first told the petitioner that the Judge was involved

in any arrangements which were to be made and that the

Judge was to receive a consideration.

The Government’s assertion that ‘‘[P Jetitioner testified

that he gave the bearer bond to Villmow to hire an attorney

and that he cautioned Villmow to do ‘nothing wrong’ ”’

(Memorandum, p. 7) compresses the events of several days

into one moment in time and grossly distorts the petition-

er’s testimony at the trial. Petitioner testified that when

he first met Villmow on July 5, Villmow told him that Boh

Tehan, Jr., could get him a suspended sentence, provided

the petitioner could come up with the money. Petitioner

told Villmow of the other attorneys that he had hired and

the sums of money that he had spent. At that time he

cautioned Villmow not to do anything wrong. Villmow

then informed the petitioner not to worry, that Bob Tehan,

Jr., was behind it all, and the petitioner replied that he

would pay Bob Tchan, Jr., $10,000 for legal services. At

this time Villmow told the petitioner that Judge Tehan was

involved in the matter and that the money would have to

4

be split three ways. (App. 114-115) The petitioner testified

that at the time he gave the bearer bond to Villmow (App.

120-121), and before (App. 119-120), he knew that the

money was going to Judge Tehan.

1. The Government contends that ‘‘[PJetitioner may

have been induced and encouraged by his friends to commit

this crime but the government played no such role. * * *

In short, the government merely allowed the plan conceived

by petitioner and his friends to proceed—as it did.’’

(Memorandum, p. 7) This remarkable assertion is made

without any support from the Record. There is no evi-

dence that-the petitioner did anything whatsoever except

agree on July 2 to talk to Pikofsky’s friend Villmow about

getting a suspended sentence. Villmow and Bob Tehan,

Jr., conceived all of the plans, and then on July 3 turned

their efforts over to the F.B.I. To hold the petitioner re-

sponsible for Pikofsky’s role in this matter despite Pikof-

sky’s unimpeached denial that the petitioner had anything

to do with it is to indulge in presumptions and assumptions

contrary to every established principle of our legal system.

While it may not be that the government originated or

manufactured the criminal design, Villmow and Bob Tehan,

Jr., most certainly did; and the government, when it made

Villmow its agent on July 3 and instructed him to call the

petitioner on July 4, adopted the plan conceived by Vill-

mow and Bob Tehan, Jr., and instigated the eventual

active participation in this plan by the petitioner.

2. Part of the Government’s contention that this Court

should not re-examine Dumn v. United States, 284 U.S. 390,

is based upon the falacious assumption that ‘‘[T]he 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 * * * *’? (Memorandum, p. 8) This argu-

5

ment ignores the fact that the petitioner was not indicted

for ‘‘bribery’’ in the bilateral sense of the term, but rather

he was indicted for ‘‘indirectly offer[ing] a thing of value

to the Honorable Robert E. Techan, * * *’’? (App. 17) The

guilt of the petitioner under this charge depended wholly

upon his own intent and could not have been predicated

upon Judge Tehan’s intent. Compare, Robinson v. United

States, 8 Cir. 1928, 32 F. 2d 505, 509. Except for the in-

structions on entrapment nothing coutained in the trial

court’s instructions (App. 165-180) Would have led the

jurors to believe that they had to findranything more than

that the petitioner indirectly offered a bribe in order to

return a guilty verdict.

The Governnient also refers to the holding of the court

below that the acquittal on the bribery charge may have

been the result of feelings of compassion, (Memorandum,

p. 8), and suggests that this reasoning, too, proscribes re-

view of the Dunn rule. And vet the Government does not

suggest in what manner this insubstantial doctrine can be

justified in a case where the jury was called upon to

decide only one element which was capable of a clear-cut

determination. Nor does the Government recognize the

manifest injustices worked by this doctrine in a case such

as this. Leaving the problem to be solvedfby the com-

placent reply that inconsistent verdicts are the price we

pay for our system of trial by jury does dishonor to our

judicial process.

3. In answering the argument of the petitioner that the

term ‘‘officer’’ as it is used in Section 1503 of Title 18

of the United States Code does not include a judge of a

United States District Court and that the term should be

limited, by settled principles of statutory construction, to

the same meaning that it has in Section 401 of Title 18,

the Government has requested the petitioner to shoulder a

6

burden which these principles of statutory construction do

not impose on him. The Government says, ‘‘The fact, how-

ever, 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 ‘officers’ to include judges

in other contexts.’’ (Memorandum, p.9) This statement,

however, begs the question by assuming that a judge is an

officer of the court. It further induiges in the gratuitous

assumption that a judge can be in contempt of his own

court. But by far the greatest error contained in the

statement is its assumption that it must be shown ‘‘that

Congress did not mean the term ‘officer’ to include judges

in other contexts.’’ As was pointed out in the Petition

for Certiorari (p. 23), the presumption is that the term

has the same meaning throughout the statute under con-

sideration unless it clearly appears that a contrary intent

existed at the time of passage. The Government has not

indicated that this contrary intent existed. Nor has the

Government shown how the term ‘‘officer’’ in section 401

could be rationally interpreted to include judges.

As was further pointed out in the Petition for Certiorari,

(p. 22) reliance on the dicta in Cammer v. United States,

350 U.S. 399, 405, to the effect that judges are to be in-

cluded in the same category as marshals, bailiffs and court

clerks is misplaced. The holding of the Court specifically

limited the class of persons designated ‘‘officers’’ to those

‘‘pnersons who serve as conventional court officers and are

regularly treated as such in the laws. See 28 U.S.C. $$ 601-

963, 28 U.S.C.A. §§ 601-963.’’ Camme: v. United States,

350 U.S. 399, 405. As was pointed out in the Petition for

Certiorari (p. 22), judges are not included in that class.

Concluding, as did the courts below, that, even if a

judge is not an officer within the meaning of Section 1508,

an attempt to bribe a judge is an ‘‘obstruction of the due

administration of Justice’’ as charged in the second count

7

rc

of the indictment, the Government contends that there is

no reason to limit the general concluding phrase of Sec-

tion 1503 **to the particular classes of individuals previous-

ly enumerated in that section.”* (Memorandum, p. 10) The

reason for limiting the general concluding plirase is, as the

district judge in United States v. Bittinger, 24 Fed. Cas.

1149 (1876), Case No. 14,598, intimated, that without such

limitation theconcluding portion ts so broad as to have no

meaning Whatsoever, at least within constitutionally ac-

cepted bounds of specificity. Cf. Connally v. General Const.

(o., 260 U.S. 385, 391. United States vo Brewer, W390 US.

278, 288; United States ve Cohen Grocery Co,, 255 US. S81,

Sf).

As a final measure the Government refers this Court to

United States ve Manton, 2 Cir, 1938, 107 BF. 2d S34, cert.

dented, 309 US. 664, a case where certain defendants were

convieted of a conspiracy to obstruct the administration of

justice in violation of Seetion 241 (now Section 15038) of

Title IS by bribing a United States Cirenit Judge. As far

as it appears from the cited decision the arguments made

herein with respect to the scope of Section 1505 were not

raised in the Manton case. Tn view of this fact, it is dif-

ficult to see how that decision ean in any way control the

result herein.

For the reasons stated in the Petition for Certiorari and

in this Reply, we respectfully urge the Court to grant the

Petition for Certiorari and determine these important is-

sues concerning the administration of criminal justices im

the lower federal courts.

Ciantes A. BELLows

Attorney for Petitioner

Jasox BaNesi DeELoWws

SHERMAN (©. \MaAGibsoN

Qu the Briet