Petition for Writ of Certiorari — United States v. Bayer

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Statement._.__..------ Se Por ae Pi bana Wk banlakmn ake 5

~The evidence for the Government jawenassemnue sase Suk iat we

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Radovich’s confession. -_- - Mae! ey Sat a 2 16

Radovich’s plea of double je opétdy ... eR pte Fa, Dry Rp 5 20

Specification of errors to be urged eke aeaenansadanaes ‘ 22

Reasons for granting the writ _ . 23

Conclusion _ - Sd tit hha Gate ht a ee ee eer te 37

MME so cs ox a 5a oa we Po ing aS rok wanda Ee AR a hse 38

, CITATIONS

Cases: - F ‘

Bihn v. United States, No. 675, Oct. T. 1945, decided June

We SOUS ss tent SAS EOL een peice seen eweee's ate 37

Crumpton v. United States, 138 U. 8. 361. camheesee 36

ulasser v. United States, 315 U. S. 60. LPT Pee oe ee 33

Hart'v. United States, 84 Fed. 7992... ..---.--_-----:-- 36

Kotteakos v. United States, Nos. 457, 458, Oct.. T. 1945, ¢

decided June 10, 1946. sate ine be ie ae anol 36

Lyons v. Okghoma, 322 U. s. 596 _ - Fee paeaes 31, 32:

McNabb v. United Statey, 318 U. S. 322._.-.--.- 2, 26, 28, 29,31

ea v. cure 278 Fed. :108, certiorari denied, 258 |

wee ae och eck een eee Re eae eee agi 20

Pinkerton v. United States, Yo. 719, Oct. T. 1945, decided a

‘June 10, 1946_. ae ane 33

Safford v. United States, 252 Fed. 471. tod Sie ste erigenes Rok ate 36

Sanfard v. Robbins, 115 F. 2d 435,. certiorari denied, 312

U. 8. 607_. ; . : 33

Silverthorne Lumber Co. v. Inited States, 251 U. 8. 385. ... 7%

Stearns Co. v. United States, ee Ws da oeae eo 27

Town of Weyauwega v. Ayling, 99 U. * 4 ae 27

United States v. Chemical ines >) i? i cae 27

United States v. Johnson, 327 U.S. 106. ay eee 36

United States v. Mitchett, 322- a ee ee

Statutes: \

Article of War 8, 10 U. B. ©. 1470. 222050 ceeccsecsceses iw 2

Article of War-40; 10 U. 8,0. 1511....2020.--22.-.----- 32

Article of War 50%, 10 W'S. G;-1888..:....-....5.--5- er.

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Article of War 70, 10°U. 8. C. 1542_............. 2, 324, 26,

Uy ____ Article of War 95, 10 U. 8. C. 1567.2... -.------- oie ee

Article of War 96,10 U. 8. Ge Sabdacennccccscnsase 20,

___ Bection/87 of the Criminal Code, 18 U. 8. C. 88... .--..-

Miscellaneous: cs

2 Bull. JAG p. 97.-..-- patubteeannedgshenacsncondéaeion

ese Digest of the Opinions of “ther Judge Advocate General

-a (1912-1940), sec. GEN eikssondaceces dqcaceesnesaneas .

: /° Manual for mini ears per. BB... . . 2222-22-22 a5-2- 25,

a par. $B.........20.2+2-0----

vA ‘Technical Manual 27-255, Military Justice Procedure (1945)

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Snihe Supreme Gout of hethied Sites

Oorosmm. TERM, 1946 ©

No. —-

Unitep States 6 AMERICA, PETITIONER

Samvuev Bayer; Evias Bayer AND WALTER V.

.RaDovicH

PETITIO - A WRIT OF CERTIORARI TO THE UNITED

STATES CUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT , Reh emice

The Solicitor General, on behalf of the Byited

States, prays that a writ of certiorari issue\_to

review the judgment of the Circuit Court

Appeals for. the Second Circuit reversing the

convictions: of respondents for conspiracy to

defraud the United States.

OPINION BELOW - . 7

The opinion of the circuit court of appeals (R.

1467-1476) has not-yet been reported. -

. ‘ JURISDICTION &

The judgment of the circuit court gf appeals

was entered August 14, 1946 (R. 1476). On Sep-

tember 13, by order of the Chief Justice, the

Government’s time to file a petition for a writ of

we es :

certiorari was extended to October 12,. 1946. The

jurisdiction of this Court is invoked under See-

tion 240 (a) of the Judicial Code, as amended py

the "Ret of February 13, 1925. See’ ‘also Rilles

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

QUESTIONS PRESENTED © |

1. Whether a ygluntary confession by ‘an offi-

‘cer of the Army held in military cistody, was

rendered inadmissible under the rule of. McNabb

_v. United States, 318 U?S. 332, where such officer,

though duly served with a copy. of the charges

against hig in the course of: the investigation - :

prescribed: by the 70th Article of War, was not, . ../

served, within eight days after hfs arrest, with

the charges that were.referred for trial aftersthat = |

period;. and if-so, whether a-second confession,

voluntarily made when the aeeused was free from

restraint, was rendered inadmissible throug¥. the

circumstance that the accused, at his own request,

reread his earlier confession at the time he made

his second statement. a

2. Whether a claim of double ee may

-properly ‘be based. on a conviction by court-

martial which was disapproved because of failure

of the tribunal to afford ac cused an opportunity

to present evidence in support of his plea to the

jurisdiction; ang if so, whether a trial by. court-

martial for conduct unbecoming an officer and a

‘gentleman and for conduct to the prejudice of

good order and military discipline and of a

nature tending to bring diseredit upon the military

service, by accepting money for arranging the

transfers of certain enlisted men to prevent their

“going overseas, bars a frial in a federal district

court for conspiracy to defraud the United States

of its right @ the honest aie ae of the

officer’s duty. , “ a

some Whethend the ‘district court committed an

abuse of discretion: in refusing to reopen the ease,

’ four hours after the jury had retired, to allow .

the defense to introduce additional evidence.

.4. Whether tlie court below correctly: held that

the trial judge’s concededly proper statement of

_ the law in his. instructions concerning the defense -

< of extortion constituted reversible error ‘because

the statement Was foo cryptic.

* STATUTES INVOLVED

7 ‘Béction 37 of the Criminal Code, 18 U: S. C. 88,

ms provides:

If two or more persons conspire either

to commit any cffénse against the United ~

States, or to defraud: the United States in

any manner or for. any purpose, and one -

or mere of such parties do any act-to effect .

the object: of the conspiracy, each of the

parties\to such conspiracy shall be- fined

‘not more than $10,000, or imprisoned not

more than two years, or both.

Article of War 70, 10 U.S. C. 1542, provides-in

part: |

4 se

No charge will be referred to a general

court martial. for trial until after’'a thor-

_ough and impartial investigation thereof

shall have been made -This investigation

will include inquiries as to the truth’of the

matter set forth in said charges, form of

charges, and ‘what disposition of the case

should be made in the interest of. justice

and discipline. At such investigation full

- opportunity shall be given ey a

to cross-examine witnesses against him if

they are available and to present anything

he*may desire in his own behalf either in

defensé or mitigation, and the investigat-

ing officer shaW examine available witnesses.

requested by the accused. If the charges

are forwarded after. such investigation,

they shall be accompanied “b¥ a statement

of thg testimony taken_on both sides.-

Before directing the trial of any charge

‘by general courtanartial the appointing au-

thority’ will refer it to his staff judge

advocate for consideration and advice.

‘When any person subject to military

law is placed in arrest or confinement, im-

mediate steps ‘will be taken to try the per-

son accused or to dismiss the charge .and

release him. “Any officer who is respon-

“sible for, unnecessary delay in investigating

or carrying. the case to a final conclusion

shall be punished as a court martial may —

direct. When a person is held for trial by

general court martial thé commanding of-

ficer Will, within eight days after the ae-

cused is arrested or confined, if practicable,

accused’

Pee 5

A. forward the*charges to the officer exercis-

ing general court-martial jurisdiction and

furnish the aceused a copy of such charges.

If the same be not practicable, he will re-

port to superior authority the reasons, for:

delay. The*trial judge advocate will cause

to be served upon the accused a copy of

; _ the charges tipon whith -tyial -is to be had;

and a failure so to seyve such charges will

_be ground for a continuance unless the trial «

be had on the charges furnished the accused

as hereinbefore provided. “In time of peace

no person shall, against his objection, be.

brought to trial before a general, court

martial within a period of five days swbse-

quent to the service of charges upon him. ;

STATEMENT )

_ Respondents were convicted in the United States

District Court for the Southern District of New

York onaone count indictment charging conspiracy

- todefraud thé United States of its right to the fajth-

ful and-disinterested services and judgment 0 offi-

cers of the United States Army (R. 6-11, 1176).

The indictment specified that it was part of the

conspiracy that respondent Samuel Bayer, father

of Martin Bayer and unele ofsMelvin Usdan, beth

of them soldiers in the Uhited States Army, and —

_Tespondent Elias Bayer, uncle of the two boys, )

_would give respondent Radovieh, an offictt of the.

United States Army, $7,000 in order. to induce

‘ Radovich to: transf.r the hoys to various uuits for

oO .

the purpose of keéping theny from being sent out

‘of the United States for duty overseas. “Samuel

Bayer was sentenced to imprisonment for. two

years and to paya fine of $10,000; Elias Bayer to

imprisonment for eighteen months and to pay a

fine of $5,000 ; and Radovich to impr igonment for. ~

a year anda day (R. 1211- 1212), On appeal, the

judgments of conviction were reversed (R, ee :

The evidence for the Government N

A glial time beforé December 15, 1942, Samuel

Bayer learned that boys enlisting in the Army be-

fore December 15 would be allgwed to select the

.. branch of service in which they wished to serve: °

' (R. 184, 276-277): Martin Bayer, Samuel’s son,

and Melvin Usdan, his nephew, both enlisted in -—

thé Air.Corps agg.were assigned 1s clerks to base.

headquarters at hel Field, Long Island Gob:

_Ex. 27, R. 907, 1312; Gov. Ex. 11, R. 496,°1233). °

In: the ‘period following this assignment, Elias

Bayer met and introduced to Samuel various offi-

cers attached to the First Fighter Command at.

Mitchel Field (R. 133, 187,363, 395; Ex. 8, R.. /

491, 1225). Samuel and Elias Bayer entertained

these officers extensively (R. 149, 395; Gov. Ex.

11, R. 496, 1241-1242; Gav. x. 19, R. 505, 1274;

Gov. Ex. 20, R. 505, 1285-1287), and Samuel

Bayer, through his company, the Plymouth

Thread Company, paid for uniforms made for the ~

officers by a firm owned by Samuel’s brothers-in-

ins w!

Sy £ m 7 ,

kaw (R. 134-135, 152, (66-167, 196-188, 201, 3665-

* 367; Gov. Ex. 13, R. 498, 1246).' ,

“In April 1943, members of the Womén’ s Army a

Corps began to replace qale | clerical personnel at

Mitchel Field with the result that male personnel

were pooled*for transfer to otber fields (R. 369,

397). One © ‘olonel Jacobson requested the trans-

fet of- Martin-and Melvin from base headfuarters

to the First Fighter Command (R. 397-398).

Samuel Bayer told another officer that he under- ;

stood that the.effect of. this transfer was to as- pis

- sttre the assignment of the boys to Mitchel Field

for approximately. one year (R. 278), A’ few

‘days after the transfers were effected, Samuel

Bayer tendered a dinner to Colonel Jacobson ‘at

the.” Wa]dorf- ‘Astoria Hotel. and presented him

with four new automobile tires (R. 370-372).

The April transfer placed Melvin and Marvin

under. the command of: ‘Radovigh (R. $35). In

‘July 1943, there were rumors current at Mitehal,

Field that the Bayers were making gifts to officers.

of the First Fighter Command (R. 207-208, 280-°

281). Radovich informed Samuel Bayer that the _

boys would have .to be transferred (R. 924; Gov.

Ex. 25, R. 661, 1309). At Samuel’s request to

* In the summer of 1944, at Samuel Bayer’s request, the

books of the uniform company were altered to indicate that

payment had been made by the officers themselves rather than

the Plymouth Thread Company. (R, 190- 195). Prior to this,

- both of thesBayers, when interviewed by an Ary investigat-

ing officer, had denied paying for the uniforms and had de-

‘ med making payments to Radovich (R. 507-51. 3).

716962—46-——-2 , _

have the boys kept at Mitchel Field, Ratlovich

approved a transfer of the boys from his own, unit

- to the medical corps at the field (R. 115-118; ; Goy.

Ex. 25, R. 661, 1309-1310). While this tetsiabee

was pending, Samuel and Elias went to: Mitchel

Field and asked Colonel Vidal to facilitate tlie

transfer (R. 137-139). After the transfer was _.

effected, Samuel -paid Radovich approximately es

"$2,000 (Gov. Ex. 25, .R. 661; 1310).

_A short time later, the boys were transferred

to an airborne engineer unit scheduled for duty

overseas (R. 140). Samuel and Elias requested

Colonel Vidal to prevent the transfer, but were ©

infornied that nothing could be done (R. 140-141).

Samuel also communicated with various Army

officers whom he Mad previously met and at-

tempted to induce. them to arrange to have cthe

hoys transferred out of the engineering unit, but

‘ ~ these officers declined to intercede (R. 160, 176-~

4177, 374). Samuel told one officer he would do

anything in his power to keep his port from going @:. |

overseas (R. 176). ‘ ° | @

In the meantime, Radovich had left Mitchel

. Field and joined the Fixst Air Commando Group

(R. 253). This-organization was given highest

priority on personnel, and its officers’ reqnésts

for transfer of personnel. were regularly: and

quickly honored. (R. 231-232, 254). In August

and September" 1943, Radovick> on three occasions,

discussed with Captairi Pepper, a personnel offi-

; wane j

cer - at: Mitchel Field, the possibility of arranging

a transfer of Marvin and Melvin out of the air-

borne engineers to the Air Transport Command, a ~

unit set up for service in the continental United

States (R..208-211). Pepper told Radovich that

the boys could be transferred only at the request’ —

. of an organization having a higher priority than :

the airborne engineers (R. 209). Radovich sug-

- . gested to Pepper that it might be possible to have

the boys transferred to the First Air Commando

Group arid subsequently have them dropped as

surplus atid transferred to the Air Transport Com-

mand (R. 211). Pepper agreed that in this way

a transfer might be arranged (R. 211). Radovich |

told Pepper that if he could effect such a transfer,

- it would be ‘‘worth his while,” and he would see

that it would be worth Pepper’s while - 211-

212). ©

In September, 1943, Samuel Bayer ‘asked an

Army. officer whether he thought there ‘would be «

-any trouble if his hoys were transferred out of

: the alerted unit. When the officer said that he

thought the conseque mees would be serious, Bayer

cried and said that he wanted his son out ' e

unit. (R. 28;3-284. )

On November 22, 1943, at the request of Ra

-vich, a special order, was issued from Hea

quarters Army Air Fore es in Washington direct-

ing the transfer of Melvin and Marvin to the

First Air Commando Group at Goldsboro, - -North

——

Carolina, and ordering them to report not later

than November 25 (Gov. Ex. 3, R. 119-120; R.

256). On November 24, Radovich called a clerk

in the office: of the Army Air Forces in Wash-

ington and requested that the boys be transferred ©

from the Air en Group to the Air Trans-

port Command (R. 256-257). This request was

honored by a letter ge November, 25, 1945,

from Headquarters Army Air Forces in. Wash-

ington (R. 123), The transfer was effected” on

November 29, 1943 (Gov, Ex. 4, R. 121-122).

Shortly thereafter, Elias Bayer and an uniden-

tified man met Radovich outside the railroad:

station at Goldsboro and gave him an envelope

containing $5,000 (Gov. Ex. 15, R. 600, 1254—

1256; Gov. Ex. 20, R. 505, 1279, 1281; Gov. Ex.

. 25, R. 661, 1511).: The reafter Radovich . sent —

Captain ‘Pepper a bank draft in the sum of $500 -

(R. 212; Gov. Ex. 25, R. 661, 1311).

The Bayers’ defense

The Bayers sought to defend themselves against

the charge of conspiracy on the ground that the

payment of money to Radovich was not made pursu-

ant to agreement but was extorted by Radovich. In ~

_ statements given to the United, States Attorney .

_ before trial, which were -introduced in evidence

by the Government, the Bayers said that after

Radovich had transferred the boys to the medical

unit in “August 1943 he agked for money (Gov.

Ex. 8, R: 491, etn. 13, R. 498,

ll. ;

1249-1250; Gov. Ex. 20, R. 505, 1277, 1278), and

that after the boys had Arwen transferred to. the

Air Commando Group, Radovich came, to New.

York and told Samuel Bayer that he would take

the boys overseas to Burma unless. he received

$5,000 (R. 1229-1231, 1279). In their defense, the.

Bayers called as a witness Samuel Bayer’s secre-

tary, Ann Solomon (R. 915).. She testified that

on the same morning that Martin Bayer tele-

phoned his father that he was being transferred”

to Goldsboro,. North Carolina (R. 929-930), a

date fixed by Melvin Usdan as ‘November 24, 1943

(R. 862), Radovich called from Washington and .

asked Samuel Bayer to meet him for lunch that .

day ; that at lune ‘h Radovich in her presence said

‘that he was taking the heys with him to Burma -

unless Bayer paid him $5,000 (R. 928-929). A

‘clerk it the office of the Army Air Forces. Head-

quarters in Washington, D. C., had previously S

testified for the Government that on November 24,

Radovich called her from Goldsboro, North Caro-

lina, ‘und: asked her to transfer Marvin and ‘Mel-

vin to the Air Transport Command (R. 256-..

257), and it had also been shown that the request -*

was “acknowledged by a letter dated November

25, 1943 (R. 123). * 1S

In discussing the Bayers’ defense of extortion,

the United States Attorney pointed out to the

jury that Samuel Bayer had approached other

olficers seeking to ‘have his son transferred out of

the airborne engineets (R. 1069) and further ~

argued that the Bayers’ denials that they made

any gifts to Radovich when they were first. ques-

tioned by military ‘authorities was ineonsistent _

with their defense that they were the victims of

-extortion (R. 1070). Then, after noting that

the luncheon meeting to which Miss Solomon |

testified must have occurred on November 24th,

the United States Attorney stated (R. 1072):

So, on the very day, November 24th, that

Radovich, according to Bayer, is making.

the first threats here in New. York to take

these boys unless he got $5,000, Radovich,

according to Miss Goertz, is ac tually in

Miss Gvertz from GoldsDaro to Washing-

ton ahd asking her to igsue the orders

Goldsboro, North Cit and is calling

- transferring the boys as surplus out, of the

‘Air Commando unit and into the Air

Transport Command. Her. testimony’ is

clear, it is exact, and it is uncontradicted.

She fixed November 24th definitely as the ,

date that Radovich called her from Golds-

- boro and asked her to issue the orders

transferring the boys out of the Air Com-

mando.group to the Air Transport Com-

mand.

Now we see clearly here from the undis-

puted evidence that this alle ged extor-

~ tioner is in fact bringing about ‘the trans-

fers of the boys out of the Transport Com- .

mand ‘[sic] on the very day that, according

to Sam Bayer, he, Radovich, is threaten-

13 rr

ing to take the boys on a dangerous mis-

‘sion that he arranged—he, Radovich,

- arranged—through Miss Goertz for the --

transfer of. these boys out of the Air Com- .

mando unit the day before the boys even _

arrived at Goldsboro, Because Melvin

Usdan’s testimony is that they did not get

to Goldsboro until the 25th. So that by

the time they arrived there Radovich, in

carrying out the conspiraéy, with the. aid

of the lady in Washington, had already.

. _ arranged to'get them out of the Commando.

The next day, before the judge charged the

‘jury, counsel for the Bayers stated that they ha \

been surprised by the Government’s questioning

of the meeting on November 24 and that a check ,

of the records had shown a collect call from

Washington to the Bayers on that date (R. 1116- it

1117).. The court stated that, if counsel so

desired, he would tell the jury that the records

showed such a collect call, and counsel requested

~ the court. to tell the jury that the statement was

‘being made at their request (R. 1125-1126). At

‘the suggestign of counsel for Radovich, the court

also stated (at he would tell the jury that the—

records did not show who made the call (R. 1127).

The judge made such a statement to the jury at

the opening of his charge (R. 1129). 7%

After the jury had been out about ‘fous hours

-(R. 1154) they asked for a rereading Of the

- judge’s charge on conspiracy and of the United

States Attorney's summation. (R. 1155). The |

judge declined to réad the summation of one

®ounsel rages reading the summations of all

(R. 1155). Some W the jurors stated that they

were mene ularly interested in the United States .

Attorney’s summary of the telephone messages —

and meetings from November 22 to November 25,

1943 (R. 1163, 1166-1167). Thereafter, counsel

foy the Bayers asked leave to put im evidence

p her he. had obtained from the telephone com- | -

pany showing a collect call from Arlington, Va., by

one “Ravish”’ on November 24, 1943 (R. LI70-1171,

1472). The United Stafes Attorney objected, point-

ing out that even if Radovich had made such a tele-

phone call from Washington, that fact would not

tend to disprove that the request to transfer the.

| Sboys tothe Air Transport Command had been given .

.on the same day as the alleged threat to take

the boys to Burma, ‘and would not detract from |

the fact-that a letter ordering the transfer had ~

been sent from Washington on the very next day,

November 25 (R. 1172).?/ The judge declined to

-reopen the case at that point (R. 1173). On

appeal, a majority of the circuit court of appeals

held that, in view of the jury's question, this

action by the trial judge. was an abuse of discre-

tion which constituted reversible error (R. 1470-

' 1471).

? Miss Solomon had testified that Radovich was in New

York and had again asked for money on the day following

~ the luncheon meeting, i. e.. on November 25 (R. 930).

es 8 ie Oe

In instructing ‘the jury with respect to the

Bayers

charged as follows CR, 1157- 1158):

defense of extortion, the trial judge

Counsel for the defendants Bayer. claims

that payments: of money by defendant

- Samuel Bayer to defendant Radovich were

mace .as the result of express or implied _

threats by defen ant Radovich to improp-

erly and unfairly ‘inelude priyates Martin

Bayer awd Melvin Usdan in the Air Com-

mando. Group organized for [an] immediate

dangerous overseas mission, which would

be a violation of his duty as an officer.

The Government contends that sueh pay-

ments of money were made voluntarily by

mutual agree menf in the course of the eon-

spiracy charged. ' ‘J

If you believe from the evidence béyond

a reasonable doubt that at ang time during

the period alleged these three defendants

matually, agreed to defraud the United

States as alleged in the indictment, and did

some act in pursyance of, such agreement,

they weuld be guilty irrespective of

whether the actual payment of money were

made voluntarily or invehuntarily. How-

ever, as to the’ payme ‘its of money, if you

“believe that they wre cee reed by the de-

fendant Radoviech, that is, that they would |

not have«-been made at all in whole or in

part except for Radovich’s threats, then

such payments would not be the result of

agreement nor any evidence of a erime.

And if you so believe, ‘and also. are not

710962 46— 3 p 2

| 16 iver ee.

fa . ‘ gins

satisfied beyond’ a reasonable doubt by

other evidence in the case that the con-

spiracy existed as charged in the indiet-

‘ment, you should find all the defendants not

guilty, as Radovich ‘is not here ‘charged

with extortion, | :

However, in your conside ‘ration of this

- phase of the case, T charge you that .the

“matter of whether or not the payments were

made at the suggestion of Samuel Bayer or

upon the demand of Radovich, or whether

the payments “Were imate cheerfully or

grudgingly, or whether or not they were

greater than Samuel Bayer expected, are

immaterial if you are satisfied bevond a

: reasonable doubt that the payments were

made by and in the course of the agreement

of the defendaffts. b

The opinion of the. circuit court of appeals in-

dicates that a majority of the court thought this

charge too cryptic, although if does not appear

from the opinion whether reversal of the judg-

ments would Have been predicated on such ground

alone (R. 1471). : he

Radovich’s elieaiie

In the course of the trial, the Goverfiment

, offered in evidence a statement by Radovich given

_ to an agent of the F. B. I. on March 15“and 17,

1945, in which Radovich admitted acceptihg $7,000

from the Bayers for arranging. the transfers of

Marvin and Melvin (R. 531533 5 Gov. Ex. 25, R. -

661, 1306-1512). . When counsel for Radovieh ob-

. % :

‘jected to the admissyon. of tis statement, a hear-

ing was had outside #he presence of the jury on

_the question of its admissibility (R. 533-936).

‘The facts adduced at that Hearing are as follows:

On, August 9, 1944; Radovich was placed ‘under -

arrest at Mitchel Field pending a trial by general

court martial for violation of the 95th and 96th

‘Articles: of War. (R. 591). He was confined to a

separate room in the psychopathic. ward of the®

-¢

hospital at the field (R. 561-563). On August.

10,. 1944, charges were, preferred” against him

(R. 584-585), and on August 25 the report of the

investigation of those charges was serit to head-

quarters (R. 606). In the meantime, on August

91, 1944, Radovich kad submitted his resignation

for the good of the-service, stating therein that

he had been informed that charges were pending

against him for violation of the 95th and 96th

Articles of War (R. 596-597).’

*The resignation was forwarded to headquarters, Amny

Air Forces, with a favorable recommendation on January

27.1945. The indorsement forwarding the application

stated that the reason for delay was that, at the request of the

United States Attorney, all action in the case had been

* suspended pending completion of an inyestigation of. the

civilians involved. (R. 596-598.) The resignation was “not

favorably considered” by the War Department in March

1945 (R. 5OS-GOL), i. e.. it was rejected. The charges were

referred for trial by court-martial in May. 1945, and Radovich |

was formally.served with the charges én which he was to be

tried on May 29, 1945 (R. 586-587). The. reason given for.

the delay in the trial by court-martial was the request of the

United States Attorney that no action be taken pending com-

pletion of the investigation of the civilians ixvolved (R. 606- ©

607). |

oer

By a

f 18

- For the ‘first eight ‘or ten days of his confine-

“ ment in the psychopathie ward, Radovich was not

allowed out of the room.and’ was deprived of all

articles which might be used to inflict injury

(R: 561, 566). Thereafter, he was taken for a

walk each day sin In the course of his .

daily exercise, Radovich mentioned to the guard *

who accompanied hit Mat he. would like to con-

sult with Warrant Officer Bradspies, his counsel.

The guard transmitted tlris request to his superior

officer, and Bfadspies was directed’ to interview

~Radovich. (R. 576; 578-579.) Some time there-

“after (see R. 579); on September 5 or 6, 1944, a

colonel introduced ‘two F. B. ‘I. ‘agents to Rado-

~ vich, told bim that the agents wanted to talk to

him about the case, and that it was up to Radovich

“whether he wanted to say anything to the agents

(R. 541-542). During the interview with. the

F. B. I. agents, Radovich made or received. some

- telephone calls, and* the nae of Bradspies was.

mentioned. (R. 543, 549). Also, durihg the course }

of that interview, an officer delivered ‘to Radovich .

an order instructing him not to wear his decora-

_tions, but Radovich refused to remove them (R.

553, 577-578). Radovich gigned a written state-

ent at that time (R. 538). se ae

r September 16, 1944, Radovich WAS, reléased ©

froni the hospital and subjected to administrative

restriction allowing him the freedom of ‘the base

-. except for the officers’ club, base operations, flying

field and flying lines (R. 593-595). On January

; é |

®.

"9, 1945, the restrictions imposed on September 16

were removed, except as to the officers’ club, and

Radovich was required merely to. secure permis-

sion from the. base commander prior to any de-

parture frem the limits of the base (R. 595).

Between September 16, 1944," and. Mareh 1,

1945, Radovieh hada number of conversations

with F. B. I. agents, sonietimes.on his own

initiative and ‘sometimes by appointment (R.

" 537-538). In the course of these interviews, he

rec ‘oufited samme: facts not covered in the state- -

ment given to the F. B. IL. in September 1944,

and the F. B. I. arranged a. meeting with’ Rado-

vich to inco“porate the entire story into one

statement (R. 536-539). At the. request of

Radovich, the agent produced the original state-

- ment given in September 1944, and Radovich read

over that statement before making his second —

statement in’ March CR. 539, 540, 501). Only the

March statement ‘was offered in evidence.

‘The trial judge ruled that the statement of

‘September 5, 1944, was voluntary, that- Rado-

vich’s confinement at that time was not illegal,

and that,.in any event, any infirmity in the Sep-

tember statement did not apply to the March

statement (R. 657-658). He accordingly - ad-

mitted the March statement, but- only as against

Radovich (R. 660). On appeal, the circuit court

of appeals held that this was, error; it said that

sinee Radovich had not™been served with copies:

‘of charges within eight days ‘after this arrest, as |

—*

ves

; required. by, Atticle of War 70, his: eae was

analogous to that of a person héld on a criminal

charge without | prelintinary arraignment, and,.

hence, that any confession obtained. ‘during such

period was inadmissible under the rule eninciated

by this Court in McNabb v. United Stutes, 318 -

_U, 8.332; and that since the first confession was. :

used at the time the second was-given, the irregu-

larity of the custody ‘tainted the second as well

assthe first. 0:. | | nae ,

Radovich’s. plea of double jeopardy

On June 29, 1945, Radovich was. convicted’ by

court martial on-e 5055 caged violating ‘Articles of

War 95 and 96 (LOT. S.C. 1567, 1568), Appendix,

infra, p. 38,10 e., of conduct unbecoming an officer

and gentleman, and of conduct to the prejudice of

good order and military .dise ipline and-of a nature -

. to bring discredit upon the military service. As to

each offetise, the specification alle ged that in fern |

sp Radovich regeived) from Samuel Bayer

2,000 to effect the transfer of Marvin Bayer and °

os Me ‘win, Usdan ‘from the “First. Fighter Command

to the medical detail at Mitghel Field, and_that

von or about: December 1, 1943, he accepted and

received from Elias Bayer $5,000 for effecting

‘the transfer of the boys from an ox®anization

“alerted for duty overseas to the Air * raunspory Com

mands(%. 14-17). ”

‘ The conv bokiets of an officer. for the Satng acts under both

/ vticle of War 95 and Article of W ar 96 was held proper in

, mcRae « Henkes, 273 Fed. los (C. C. A. 8). certiorari denied,

258 US. 624.

The indictment in the instant case was-returned

on July 12, 1945 (R. 3). On September 26, 1945,

" Radovich filed a plea in bar alleging that his con-

_ vietion by court-martial precluded his trial under,

the present indictme nt (R. 4, 13-14). The Gov-

: ernment demurred to the plea (R. 20-21).

- On the argument of a motion for a continuance’

before argument on thé plea, counsel for Rado-

vith .stated that’ he thought the court- martial

“conviction had been disapproved CR. 97), but”

that he had not been officially SO informed (R.

30). The U nited* States Attorney stated that he,

had seen, the decision of the Board of Revie®

disapproving the eviction (R. 41): In ruling

‘& ‘on the plea and the demurrer thereto, however,

“the court accepted the allegation in the plea that:

. Radoweh had: been convicted by court- martial,

(RR. 99). The judge. yey the government’ .

* demurrer on the ground that the offense. eharged

in the indictment was rot. the same as the charges: :

on which Radovich had been tried by’ court-

martial (R. 83-85). :

On appeal, the cire uit court. of appeals ruled

~ that the plea of double jeopardy should have been

‘Xgustaine “dif Radovich ‘s conviction by court-martial

was final. However, inasmt- |. as the _ record

-left the status of the military judgmdrn in doubt,

‘and a new trial was being ordered for other

* reasons, the ‘eireuit court of appeals left open ‘the

question of: ‘double jeopardy for determination on

the new trial.

We. have been informed by the Office. of the

Judge: Advocate Generalfgbat on August 17, 1945,

the Board of Review disapproved the conviction

‘of Radovich on oo jcipaete the court-martial

had erred in failing to gi¥e him an ‘opportunity

to offet eviytence in support of his plea to the

jurisdiction in’ which he alleged that his” real

accuser was the person who convened the court-

Ste martial. See Artic le of War 8, 10 U. 8. C, 1479.

The Judge Advocate Ge neral concurred in that

holding, and an order disapproving. the ¢onvie-

tion was promulgated by the War Department

on July 26, 1946 (General Court-Martial Order

No. 240). .No rehearing. by court-martial under

Article of War 501% (10 USS. CL 1522) was ordered,

: g ae

SPECIFICATION OF ERRORS TO BE URGED

The cireuit court of appeals erred:

l. In reversing the judgments of- conviction.

2.,1n holding that, the confession “made by

Radovieh in Marely 1945 was inadmissible .in

evidence. | 7

3. In holding that a confession, made by Rado-

vich in September 1944, while he was in military

custody, after inivestigation of charges against

him but before. the charges were referred-—to a

court-martial for, trial, was ilegalky obtained.

= 4. In- holding that the confession made | by

Radovich- in March 1945, when he was free of

restraint, was inadmissible because at the time

he.’

: 7” ; 23 a . .

. he made that statement he reread his arlier con-

fession at his own request. |

5. In holding -that Radovieh’s conviction by

- court-martial on charges of conduct unbecoming

an officer and of conduct to the prejudice ef good

order and military discipline and of a nature to

bring discredit upon the military service would

sustain a plea of double jeopardy to an indictment

charging conspiracy to defraud the United States.

_ 6. In holding that ‘the district judge ‘abused

his discretion in refusing to reopen the case after .

the jury had retired ‘in order to permit-the Bayers

to introduce evidence. tet. sf

7, In holding that tli, charge to the jury ex-

plaining the/law relative to the Bayers’ defense of

extortion was too. cryptic. . |

REASONS FOR GRANTING THE WIIT

1. In holding Radovieli’s March 1945 confes-

sion inadmissible in evidence, the epurt below

has decided questions of importance in both mili-

_tary and civil law. ih a manner inconsistent, with

>. decisions of this Court and contrary to the in-

terests of justice. |

(a) The decision of the court below, constru-

ing the provision of Article of War 70 for for-

warding and Sérving of charges within eight

days after arrest, if practicable, as analogous to

the requirement for prompt arraigmnent of per-

sons charged with crime, is predicated upon a

- complete misconception. of military procedure.

Article of War 70, so far as pertinent, provides:

‘No charge will be referred to a general

court, martial for tria) until after a

thorough and _ impartial investigation

thereof’ shall havg been made- This in-

vestigation will include inquiries as to the

truth of the matter set forth in said

charges, form of charges, and what dispg

_ ‘sition of the case should be made in the.

interest of, justice and discipline. At such

investigation full opportunity shall be

given to the accused. to cross-examine wit-

nesses’ against him if: they are available

and to’ present anything. he may desire if

his own behalf either in defense or miti- |

‘gation, and the investigating officer-shall

examine available witnesses requested by

‘the accused. If thé chdrges are forwarded

after such investigation, they/shall be ac-—

companied by a statement of the substance

of the testimony taken on both sides._

* zi, met * ; *

When any person subject to, military law.

is placed in arrest or confinémeyt imme-

Piliate stepsgwill be taken to try the person

accused or to dismiss the charge and re-

lease him: Any officer. who is responsible

for unnecessary delay in investigating or

carrting the case to a final conclusion shall

he punished as a court martial may direct.

When a person is held for trial by general

court martial the commanding offieer will,

within eight days after the aceused is ar-

’

‘ 25

served, upon the accused a copy of the

charges upon_ which trial is te be had, and

a failure so to serve Such charges “will be

_ ground for a continuance unless the trial

be had on the charges furnished the ae-

cused as hereMibefore -provided. In time *_

| of peace no person shall, against his objec-

‘ike tion,. be brought to trial before a general *

eourt martial within a period of five days

subsequent to the service of charges upon

him.. .

Implementing this article, the Manual for .

Courts-Martial (1923, corrected ta 1943) specifi-

cally provides (par. 354, p- 24): 5

At thegoutset of the investigation the

accused will be informegl of the following:

The offenses cyarged against him; the

names of the accuser and of the witnesses, =

as far as then known to the investigating

offieer: the fact that the charges are about |

to be investigated; his right to. cross-ex-

amine, witnesses against him if they are

‘available and to present anything he may

desire in his own behalf, either in defense ”.

s oF mitigation; his right to have the investi-

gating officer examine available witnesses

requested by him; and his right to make or,

‘ 26

submit a statement in any form subject to

thé risk of having such statement used

_ against him. 7

e Thus, at the outset a person subject to military

law who is charged with crime is informed of the.,

nature of the complaint against, him. We are

inf ormed that it is customary to do so by showing

him the written charges. See TM 27-255, Mili-

‘tary Justice Procedure (1945), p. 38 . Thereafter

_ an investigation is#had which, Article 70 directs

should be completed. within eight days if prac-

ticable. After the investigation-is completed: the

chargés and a summary of the evidence with re-

spect thereto are forwarded to the officer. exercis-

ing appropriate cour€nartial jurisdiction, who

decides whether a trial, should be had. If a tridl

is ordered, the accused is <aen servéd with apory

of the charges actually referred for trial.”

The onlysstep in the entire prof€ss which is in

any way similar to arraignment is the procedure

_for investigation,of charges before they are for-

warded to the officer exercising court-martial

jurisdiction. Arraignment before a committing

magistrate in criminal cases is designed to require

the Government to show probable cause for hold-

ing the accused anid it enables the accused to learn

eee ln) G : .

‘the charges against him (see McNabb v. United

Stules, 318 U. 8. 332, 343-344). These fufictione:

are served by the investigatory procedure pre-

scribed by Article of War 70 and by par. 35 of the

Manual. - > | |

ise e

‘Thus, before the results’ of the investigation aré™

forwarded: to the officer exercising general court-

martial jurisdiction; the accused has already been

informed of the charges against him and has al-

ready had fn opportunity to learn the nature of -

- the: Government’s evidence and offer evidence on

\ his own behalf.. ‘The provision for completion of

‘yt investigation ‘and forwarding of charges |

within. eight days, if practicable, is designed pri- -

marily . to insure prompt dispositon of the

charges. In no way is it analogous to arraign-

ment. ey le

There is no showing in this case that the in-

vestigatory procedure preseribed by Article of War

70 and the Manual for Courts-Martial was n% fol- ¢

lowed. While the record shows that the charges

were forwarded on Aigust 24, 1944, after eomple-

tion of the investigation, 15 dhys after Radovich’s

arrest, it is silent-as.to, when the investigatidimwas |

commenced, at which time, in accordance with the

» procedure preseribed by the Manual, the accused

» is normally shown (i. e., served with) the/charges.

It must be presumed that the investigating officer

acted in compliance with his plainly prescribed)

official duty. See Stearns Co.,v. United, Statés, ;

991 U. 8. 54, 63; United States v. Chemical Faun-

‘dation, 272 U.S. 1, 14-15; Fown of Weyauwega ¥ aa

Ayling, 99 U. S. 112, 119. Moreover, the matter

* not rest merely in presumption, since Rado-.

h’s resignation, dated August 21, —.

a - : 3

| that he knew the nature of the charges against

him which were then under investigation (see

Statement, supra, p17 >:

The basic assumption of the decision below, that

Radovich was not served with the charges under

investigation within eight days after his arrest,

is thus it supported by the record. The court

\. failed to ) realize that Article of War 70 provides for

ON service of charges on two. different occasions, once

when the charges are being investigated and again

when they have actually been referred for trial. The

evidence in this case that Radovith was. served

with charges on May 29, 1945, relates to the serv-

: ice of the charges. which had been referred for .

trial,” and not -to semvice of charges during the

course of the investigi ition preliminary to trial.

Under these circumstances, we submit that the

situation of Radovich on September 5, 1944, when

he made his first sts tement to the F. B. L, is not

\ analogous to that of a person held without ar-

\ raignment, but is similar to that of a defendant

‘“\who has been properly arraigned and held for

prpraie court. Andgin such a situation, an ac-—

cust soldier is not, like a civilian charged with a

noncapital offense, entitled to bail; he remains in

custody. Nothing in the McNabb decision requires:

the exclusion of a voluntary confession made by a

persorr so held. Certainty. the mere fact that

Radovich made his confession while he was in

vustody did not render it inadmissible. United

States v. Mitchell, 322 U.S. 65.

There can be no doubt that the September 9 |

confession was, as the District Court found, a

voluntaty one. Radovieh had previously ¢on-

sulted with gourisel, and he may have talked with

counsel while the agents .were interviewing him

(see Statement, supra, p- 18). He was so far

ffom being intimidated, that he refused to obéy

an order directing “him to remove his’ military

‘decorations. Under such circumstances, we submit

that the court below. was in error in holding that

the September 5 confession would have been inad-

iissible under the MeNabb rule if it had been

offered in evidenee. are \

(b) However, even if for some reason not now

sidered inadmissilite. we submit that the court be-

jow went “far beyond any décision of this Court

in holding that such inadmissibility tainted the

second confession made six months later when

Radovich was free ‘of all substantial restraint.

During that six month’ period Radovich had full

opportunity to consult such courfsel as he chese.

Had he desired to limit or repudiate his earlier

confession in any respect, he had ainple -oppor-

tunity to do so. Instead, he freely and volun-

tarily’ reaffirmed and amplified his earlier state-

mefit. .To hold a confession thus freely given

navailubld/as evidence merely because, at his own

request, Radovich reread his previous statement,

seems to us a disservice to: the cause of criminal .”

justice.

apparent the September confession should be con-

oa Ps

e 30 =f

When .the court below applied to the second ,

confession the rule of Silverthorne Lumber Co. v.

‘United ‘States, 251 U. S. 385} that the fruits of

; . \ . . : . ’

evidence improperly obtained are themselves in-

admissible, it failed to give due consideration to

*the essential difference between a second -confes-

sion and the fruits of an illegal search; it failed

to take into account the f fact that a second con-

fession may we ‘Il involve‘an exercise‘of the free will

of the person confessing. In the Silverthorne case,

the defendants never consented either to the origi-

nal search or to theesubsequent use’ of the evidencé

obtained from that. search. yCertainly in that

case if, after the first illegal search, the defend-

He ae

-ants had voluntarily delivered to the Government

the evidence illegally seized,.such evidence would

not have been inadmissible ‘merely because. the

‘government agents happened to‘ have knowledge

of the existence of the records as a result of their

illegal search. Heré Radovich, when admittedly

free of coercion, voluntarily reaffirmed his pre--

vious ‘statement, thus voluntarily giving the Gov-

ernment the inivrmation previously obtained. It |.

is therefore immaterial whether he did or did not

reread. his previous statement.- The significant

fact.is thai at a time when he was free to repu--

«diate or rei iftirm his earlier statement, he him-

self, in the exercise of his free will, voluntarily |

confessed his guilt. The second confession was

not evidence obtained’ as the: result of the first

and independently of any intervening action by

Lah.

Radovich; bis voluntary decision to reaffi'm his —

previous statement, which he’ himself asked to

see, Was the operational fact which brought the

second confession intoyexistence.

This Court, in Lyons v. Oklahoma, 322 U. 8.

596, made it clear that the mental freedom of an: ~

accused at the time a second confession is given .

is the significant factor to be considered an detey-

mining the admissibility of the later statemept.

In failing to give due weight to the factor of free

will involvéd in the making of the second conxfes-

sion, the court below disregarded the basi

foundation of that decision.

. The logical.éffect of the decision below would

be that whenever a confesstefi has been obtained

under cireumstances which would: render it in-

admissible under the M cNabb rule, no future con-

fession, however: freely given, could be admitted

into evidence. The decision below does not pur-

port to go that far, but its reasoning, consistently

‘followed, would require such a result, Any per-

- gon. who has once ‘made a confession :must be

aware of that fact, and his-later statement will

almost always to some extent be influehced by

what he has previously said. The circumstance

that an accused re sds his earlier statement

instead of relying of his memory does not seem

to us a sound basis\ for distinguishing between

the admissibility and inadmissibility of the later

confession. ‘The true test is whether ‘the second

confession is a voluntary one made under cireum-

‘

_ opinion, under the decision below and the actnal

“trial. As we set forth in the Statement, supra,

“p. 22,", -Radovieh’s court-martial conviction was

' disapproved on the ground that, the court-martia} _

erred in. failing to give him an opportunity to -

. 3

stances~ free of coercive influence. Since the

decision bélow thus tends to cast doubt on the

admissibility of a second confession following an

inadmissible confession, -it is ‘directly .contrary .

_ to the ruling of this Court in Lyons v. Oklahoma,

supra, and it raises a problem. of importance in

the administration of the criminal law. i

2. The decision below. on Radovich’s plea of

double jeopardy seems to us so contrary to prin-.

ciples enimeéiated by this Court that we would

urge this aspect-of the case as a basis for cer- ,

tiorari were it not’ for the fact that, in our

facts as we have ascertained them, the defense

would not be available to Radovieh’ on a new

offer evidence ‘in support of his plea to its juri®

diction. No rehearing was orde ted. At military

alaw, a direction for rehearing must be made-at

“the same time as the action disapproving ° the

‘sentence; it cannot» be ‘made later.. Manual for :

Courts-Martial, par. 89; 2 Bull. JAG 97, sec. 408°

(5): TM 27-255, Military’ Justice Procedure’

(1945) p. 128; see’ Dig. Op. JAG. (1912-1940),

see. 396 (3). .In view of the direction of Article’

of War 40 (10 U.S. C. 1511) that no proceeding .

in which im accused is found guilty by court-

martial shall be held to be a trial constituting

_ jeopardy until the reViewing authority has taken

‘final action, and in view of the cir cumstance that

the ‘disapproval of the conviction was based on

reasons not going to the merits, we think that the

trial by eourt-martial cannot now support a plea

of double jeopardy. See Sauford v. Bobbins, 119.

F. 2d 435, 438-439 (C. C. “A. d), certiorari denied,

312 U.S. 697, and cases therecited. The opinion -

of the court below recognizes thad if the record

had shown: that the conviction by court- martial

had been dis ipproved, the plea of double jeopardy

er not have been av ailable. Since the facts .

“to. the disapproval are matters of , official

saieail we submit that, on xveview of the other

aspects of this: ease, this, Cott may properly

consider the actual situation, and if it finds the

trial-otherwise free from error, may re ‘mnstate the

judgment as to Radovich. Neier eon

On the other hand, if the disapproval of the

court-martial conviction does not render the ques-

tiow of double jeopardy moot, then. review of this

issue is warrauted.: This Court,.in its recent de-

eision in Pinkerton v. United States, No, 719, Ort.

T. 1945, decided June 10, 1946, reaffirmed its\,

earlier rulings to the effect tliat, in deciding

questions of double jeopardy, it is the ‘elements

of the offenses charged, and not: the evidence

offered in support thereof, which are determina-

tives And in Glasser v. U nited States, 315°U. 8.

60, 66-67, this Court made it clear that a charge

~of conspiracy to deprive the United States of-its

governmental tunctiotis by accepting paymehts

to influence offic ‘ial action is a different offense :

from-conspiracy to take or give a bribe. These

desisions were disregarded by the court below

when it ruled that a trial for conduct unbecoming

an officer and a gentleman ang. for conduct to the

prejudice of good order and military. discipline

and of a nature to bring discredit upon the serv-

ice by accepting i bribe was a trial for the same

offense. as conspiracy to defraud the United

. In reversing the judgment as to the ace

acces of the failure of the trial judge to reopen

the case for the admission of evidence after the

jury had retired (sce Statement supra, pp. 13-14),

the ‘conrt below reversed -as to Radovich ‘as well

. because. the charge was conspiracy (R. 1473).

Hene ‘e, a: review of Radovich’s conviction neces-

sarily raises the question ‘6f the validity of the

‘reversal on such ground » as to. all aad

1 ‘espondents.

Independently of this consideration, we submit

that the decision below constitutes such an unwar-

ranted substitution of the judgment of: the: circuit

. court of appeals for the discretion of the trial-

judge as to require review by this Court. ‘The

circuit court 6f appeals, we submit, misconstrued

the purport of the, United States Attorney’s

argument and the sigtiificance of ‘the exeluded

evidence in relation thereto. The gist’ of the

argumnent was that the defense of extortion was

35.

untenable for the reason that, -at the very time

when, according to the defense, Radovich was,

making threats to send Marvin and Melvin over-

* seas unlesS-he received $5,000, he had already

arranged for the transfer of the boys toa com-

mand scheduled for duty in the United States.

Whether Radovich did or did not call Samuel

Bayer’ from: Washington, ‘whether he did or did

not see him in New York, the Government was

still inva position to argue that Radovich could

not ‘ave. made: the alleged threats because he had

already put it beyond his power to Garry the

threats into effect. The United States Attorney

did not directly question the alleged meeting in

New York; he did strongly question the claim,

that. threats” had been made. in order to extort -

money. a

The evidence that the transfer had been ar-

ranged on November 24, 1943, and officially made on

November. 25° had been introduced as part of the

(lovernment’s ease jong before Miss Solomon

testified té threats by Radovich on November 24

and 25. The fact that the defense failed to ap-

preciate that the Government’s evidence ‘tended

to mndermine their claim of extortion certainly |

does not constitute such surprise as would neces-

sitate the reopening of the trial. And sinee, as ;

we have shown, the evidence offered by the Bayers

in no way detracted, from the substance of the

Government's argument, we submit that. the trial

judge committed no abuse of discretion in. re-

_ |

36 oe

fusing to reopen the case. four hours after ‘the

jury had retired. The matter was_ cont for the

diseretion of.the trial judge (Crumpton v. United

‘States; 138 U.S: 361, 364; Safford v. United, .

States, 252. Fed. 471, 474 (C. C. A. 2); Hart v.

United States, 84 Fed. 799, 804 (C. C. A. 3)),

and the circuit court of appeals exceeded its ap-

_ Pellate function in finding an abuse of discretion

on these facts. Cf. United States Vv. Johnson,

397-4. S. 106.

4. The court below admitted that the char ge

- to the jury explaining. the Bayers’ defense of

extortion, see supra, pp. 14-16; was, an accurate

statement of the law, but a majority thought

that it’ was too cryptic. There is no showing

that the jitry failed to understand it... To us it °

seems to have, stated in tvlear terms that, if the

' jury found that the payments by the Bayers were

»made as a result of threats by Radovich, the pay- . ’

‘ments could. not be the result of a criminal agree-

ment, and ‘hence. would not establish conspiracy..

Insofar, therefpre, as the reversal of the. convic-

tions of the Bayers was predicated on this-portion -

. of the judge’s chargé, we submit that the ruling

of the court below was erroneous, and contrary

to the decisions of this Court. - . as ia ve

The history of the harmless error statute. set

forth by this Court in Kotteakos v. United States,

“Nos. 457, 458, Oct. I. 1945, decided June 10,

1946, makes it clear that prejudice is not to be

presumed from the mere. finding of error, and

“

. Bl

that any alleged error must be judged x the light °

of the whole case. Here there is.not even a find-

- ing of error, and there is no showing Of prejudice. .

The evidence in the case is strong and convincing.

_ The mere Gircumstance that a majority of -the

court below might have worded tlie charge ‘in

-somewhat more elaborate phraseolygy does not

seem to us a proper ground for the ‘réversal of a

well merited conviction. The decisions of this

Court in Bollenback Vid nited States, 326 U. BS.

607, and Bihn v. United States, No. 675, Oct. T.

1945, decided June 10, 1946, require that a charge.

be accurate, not that it be verbose.

CONCLUSION:

iF or the foregoingréasons we respectfully sub-

mit tha’ this petition for a writ ‘of certiorari .

_ should ve granted. 7

; J. Howarp McGratu,

Solicitor General.

OcToBER 1946. ; :

. ‘APPENDIX Se

Article of War 95, 10 U.S. C. 1567, provides:

» Any officer or cadet who is convicted of_

“ - . conduct unbecoming an officer and a gentle-

man shall be dismissed from the service.

Though not mentioned in these articles, all

disorders and neglects to the prejudiceNof

good order ahd military discipline, all con-

\ duct of a nature to bring diseredit upor the

military serviwe, afd all crinfes or offenses

- not capital, of which persons subject to mili-

tary law may begaitty, shall be taken cogni-

zance of by a general or special-or summary

court-martial, according to the nature and.

degree of the offense, and punished at the

diseretion of such court. |

“~*

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