# Petition for Writ of Certiorari — United States v. Bayer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0231%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1947 - **Citation:** 331 U.S. 532 ## Text es ya A oe A oe Ne Opinion below. - setenesese aaa eg tid aaa ae 1 Nao oa asa ekanes ge aa en SE UNO. ox a sna Sas codwacasanccuccasennes 2: intetes weld... 2. ice pene ctesn-o Pah uence 3 Statement._.__..------ Se Por ae Pi bana Wk banlakmn ake 5 ~The evidence for the Government jawenassemnue sase Suk iat we The Bayerd’ defense... . .. ......-......- ae 2 Sper 10 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 © Bollenbach v. United States, 326 U. 8, 607_. Eee PEGS So 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. (1) 716962~-46-—~1 ° . j PS . Statuter—Gptinued. x Pati. 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) ‘da ae thanbaksipnesnequanisinean . BD. BB. 5 cn ccccsccceccdtceccecccmecccoccccqeccesss L an o : . 0 : . 3 : 6 . ry 5 : Ps Snihe Supreme Gout of hethied Sites Oorosmm. TERM, 1946 © No. —- Unitep States 6 AMERICA, PETITIONER as 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 : ae \ . 2 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 te 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 - on three occasions, discussed with Captairi Pepper, a personnel offi- ; wane j =. 9. 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 @ —— 10 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 12 the airborne engineets (R. 1069) and further ~ argued that the Bayers’ denials that they made any gifts to Radovich when they were first. ques- 24 Qo 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- 7 A. 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 | er Ps Re 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). f ? 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 4 > | 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). | e Q oer a= 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 | ®. 19 "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 oy 20 ; 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. 21 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. aa 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, a : 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 © 7 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 24 - 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, * as oe / % ‘ 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 | | ise e 27 ‘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. Y. ' ee 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 29 (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- ad oa Ps 2 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 - 32 . 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 a 33 _ 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 E fj JS 3 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 es . 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- ne _ | 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. Article of War 96,'10 G..S. ©. 1568, provides: 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. | “~* © D SOvVERRwERT FRET OO CPPiCE. eee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0231%3A03. Public record. Not legal advice.