Anderson Jones v. United States

vertising contrary 309(c), practice as not procedure of § demurrer public interest, in no demon- Broad not. Federal amended. casting System thinkWe hold its strated the unfitness of WBBF Federal Communica circumstances, can- Comm., 1956, license. we tions say the Commission erred 239 F.2d 941.5 failing joint disapprove adver- request Concerning appellant’s tising discounts. rebroadcasting privileges, the Com Nor do find merit in ob- we the other appellant had mission determined jections appellant. raised sought essentially authorization blanket programs carried to rebroadeast all Affirmed. no have WBBF in WBBF concluded, proprietary inter It interest. aim, justified refus that WBBF was grant

ing absent such authorization programs (1) specificity more as to sought rebroadeast, time Federal they rebroadeast, finan and the would be provisions such re

cial to made showing privileges (2) a broadcast an concert with acted in WBBF JONES, Petitioner, Anderson station, refus interests in other ing or other request. America, UNITED STATES of action think We the Commission’s Respondent. “rejecting ground protest was Misc. No. 1103. request for rebroad- correct because Appeals Court of States authority patently unreasonable cast District of Columbia Circuit. scope.6 April appellant’s objections to As to associate WBBF its the discount purchasing to advertisers station allowed stations, the Commission on both time allowed for such discounts

noted that advertising per

joint se unrea con noted that there is It also sonable. overlap in area between service siderable mutually associated and and its

WBBF appellant station, does owned re the stations either that

not assert quire to advertise on both advertisers monetary

stations, loss Federal’s or-that advertising resulting joint prac from the way impair any Federal’s tice would public ability interest. to broadcast joint thereupon ad- concluded provisions prosecuted by ap- although § appeal, tion of the rebroadeast 5. That Act, 325(a) us, of the Communications pellant now before arose in the suit pro- making expressed entirely in the 1952 rule unrelated of a matter out ceedings to amend the rebroadeast rules. proceedings. instant Report Amendment of the Re- See broadcasting Rules, reach the 1 Pike do not & Fischer We 3) interpreta- Reg. (Pt. validity 91:1131 Radio Commission’s right judge file

Each reserves position in matter. of his this statement Judge, MILLER, WILBUR K. Circuit dissents. Judge BAZE- Statement of Circuit peti- This is us on

LON : case before prosecute in forma leave to for judgment pauperis appeal an laws, 26 conviction under the Washington, Fleming, Philip A. Mr. seq.1 March U.S.C.A. 4701 et On § by Court) (appointed this on D. C. dissented, 1959,by I an from which order petitioner. pleadings for petition. this denied It was court Gasch, Atty., Carl U. S. Messrs. Oliver judge each re- noted order Alexander, Harry Belcher and T. W. right file a statement of served Attys., pleadings U. S. were Asst. position. April then, order Since respondent. for court reversed itself Judge granted petition, Mil- Circuit Miller, Bazelon Before Wilbur K. dissenting. ler I it advisable to deem Judges. Burger, Circuit voting grant my state reasons petition. PER CURIAM. grant petition required We are or- is ordered the court that the It appeal question presents a if the court in this of this entered case der plainly is States, frivolous. Ellis not 9, 1959, denying petition for 78 S.Ct. prosecute appeal leave to forma oppos 1060. The Government pauperis is vacated. ground petition on the es this ordered further court that plainly presented is frivolous. proceed petitioner appeal allowed invariably op almost Government judgment ground2 conviction without poses petitions on this such prepayment joint Ordinarily, however, appoint of costs and counsel we printed appendix expense support shall be at the memorandum to file a petition, grant petit of the United States. most of and we large majority appeals case, 1958). criminal 1. A our In each on Dec. Mullen pauperis. appeal grounds taken in forma Of the are for an the substantial appeals indigent’s ably by decisions on from criminal were set forth court-appointed recorded in 102 and 303 in a memo counsel U.S.App.D.C. 61, petition. support 246 to 258 F.2d were randum filed in which this court or the nevertheless character The Government represent appointed appeals counsel to proposed as “frivolous.” ized the appellant. appoint Since we not opposition, particularly do pro Such forma represent appellant able counsel to pre transcripts been have in cases where pay appeal, the cost of his each of questions pared disclosing substantial appeals prosecuted in these forma comport duty review, with the does pauperis. remaining 25, theOf seven Attorney to assure United States pro- appellant in which the were cases Berger justice United is done. prepayment costs, without al- ceeded beit with retained counsel. State, 629, 79 L.Ed. 1314. pleased Frequently in two I to note that recent the contentions are frivo am appeals See, striking the United States Attor- recent ex criminal lous. two Government, amples, ney, moved Williams v. United 105 and on behalf judgment 487; -, trial court to reverse Mullen v. U.S.App. directions to award a and remand with Young cases, -, In both new trial. 14793; D.C. 263 F.2d 275. States, No. and Lewis v. United were reversed the convictions (Williams on Jan. dissent by split appeals in convictions were majority affirmed

ions.3 Thus 24 cases at pauperis decisions.7 17 of the we do affirm —as forma we thought judge appeals.4 least one “paid” court most But among them, In all many should reversed. appeals conviction meritorious cases, 17 of had in re Government and number result a substantial appeal Supreme opposed petitions for If, leave to versals. because of allowing pauperis. in forma decision, are Court’s we Ellis appeals pauperis, society ready in forma more criminal A to as- free should be larger infinitely probable it is that these include burden than sume the more miscarriages appeals appeals. 11 24 to number of meritorious avert justice. our should Concern for docket through 1957, September 1, Feb From indigent right every not attenuate the appeals ruary 28, 1959, in 24 we decided counsel, point out, to aid appeal granted in leave we had which may prove time be errors. If what although pauperis forma spent in and bar is review of bench previously leave denied had lacking merit, price in it is we ground appeal lacked merit.5 justice system pay must 11 in poor We reversed-the man from “invidious shields other cases review In 6 of the discriminátions.”8 We cannot cases.6 these 2A that, 1958, 1958; States, discloses v. docket Loveless United Miscellaneous Our 157, 487; (filed U.S.App.D.C. beginning Novem- in 260 F.2d 900 104 with Mise. prose- 1958, petitions States, 1957), 104 U.S. for leave Hanna v. United 47 ber 723; 205, appeals App.D.C. in F.2d Polisnik from convictions 260 direct cute upon by U.S.App.D.C. States, 1958, pauperis 104 this v. United were acted forma 136, 951; granted. v. F.2d Belton United 259 31 were court. States, U.S.App.D.C. 81, 1958, 259 104 appeals prepaid in the 18 4. In 14 of 811; States, 1958, F.2d Briscoe v. United reported 101, 102 in decisions which U.S.App.D.C. 386; F.2d 102 251 F.2J, U.S.App.D.C., 246 to 258 103 and States, 1958, United 102 U.S. Catlin v. affirmed. the convictions App.D.C. 368; v. 251 F.2d Williams U.S.App.D.C. States, 1957, 102 United appearing grounds “frivolous” to 5. Thus 250 F.2d 19. may judge er reversible constitute one eyes another. This is ror States, U.S.App.D.C. v. United 105 7. Ellis within divi case even sometimes 372; -, v. 264 Brown United F.2d example, For court. our own sions U.S.App.D.C. -, States, 105 264 F.2d States, 1957, 101 United Briscoe v. (conviction afiirmed 5-4 en Kano 363 decision) ap U.S.App.D.C. 248 F.2d ; States, Porter United v. ap prosecute pellant allowed was U.S.App.D.C. 685; F.2d 103 258 pauperis, judge peal dis one in forma U.S.App. States, 1958, 102 Bell United v. appeal heard, senting. After 82; Lyles 383, 254 F.2d v. United D.C. a 2-1 de reversed in the conviction U.S.App.D.C. 22, States, 254 103 U.S.App.D.C. 145, 251 F.2d 102 cision. (conviction affirmed in en F.2d 725 5-4 States, (1958). v. Lewis 386 States, decision) ; Accardo v. United Kano 1957, D.C.Cir., decided March No. U.S.App.D.C. 4, 249 F.2d 102 upon court, without dissent and this People Illinois, of State of 8. Griffin motion, remanded the the Government’s 12, 18, 351 U.S. S.Ct. award new with directions to trial. case opin- dissenting And see L.Ed. had been before us But when the case Judge Edgerton in Cash v. United ion of appeal petition for leave to on Lewis’ States, (Misc. 1066), pauperis one in forma 731, 741, judgment vacated, 1958, F.2d judge allowance dissented appeal. can “The United States afford to 1361: U.S.App. appeals States, poor criminal take Williams v. United let defendants 487; Delbridge -, rich take. It cannot afford F.2d could D.C. pros- U.S.App.D.C. 399, the burden otherwise. And of appeals, do defending, deciding 710; ecuting, Mullen v. United F.2d U.S.App.D.C. greater, inordinately -, though it is not Judd 14482, D.C.Cir., greater prosecuting than the burden of * ** disputes deciding judgment of Nov. over the reversed order again question tense counsel prove have merit raised the cases which petitioner’s right may reviewing not. disclosure some identity. court ruled heavy burdens I do minimize was foreclosed upon to bear which the bar is called representing ruling sustaining earlier Govern- indigent appellants privilege. ment’s Congress pro hope will court.9 We in evi- The narcotics were received does, adequate Until it solution. vide provided dence trial at the basis prove appeals predicting which petitioner’s conviction two counts for dig worth valid, our concern given which he was sentences concurrent every we nity individual dictates years. years, of two to seven and seven indulgence. side of err on the had best exigencies re- The of law enforcement being is The for which review quire police permitted that a to officerbe whether, sought present in is case in the probable make an when he has arrest testing sufficiency for an of cause the person guilty cause ony. Ordinarily fel- to believe a aof report, the on an arrest based present he must what the informer’s entitled to know accused is magistrate applica- he knows on an to a identity. warrant, tion for a so that the decision following: the The discloses record may whether or made not to arrest be as Officer Ernst On judiciously possible. But, cir- when Metropolitan Department Nar- Police preclude judicious pro- cumstances telephone call Squad a received cotics cedure, police may make his officer New informant in confidential a from cause, probable own determination of petitioner City to the effect that York subject judicial testing. later This to purchased York in New narcotics had represents compromise principle, a Washington by returning to always assumption, based on rect,11 not cor- supplied infor- The informer had train. objectivity that when of a past which the officer mation in magistrate brought bear, cannot be Ernst, who reliable. Officer be found to police uphold may officersworn to the law by sight, petitioner con- know did not upon judiciously be abridging in relied act veyed Officer information to Somer- liberty. an individual’s This sight. petitioner ville, know who did compromise, which is dictated neces- and, act- met train Officer Somerville sity, judicial transfers officerto conveyed ing report solely him on judicial police officer the delicate petitioner. Ernst,10 arrested Officer determining, first in- function of stance, in the peti- search He made immediate probable whether is cause. person certain nar- and found tioner’s dangers plain. They The would be pocket. in his cotics beyond limits increased tolerable suppress society pre-trial police the evi- law A motion free if the allowed the hearing solely At was denied. officer to arrest basis of an dence gov- prosecutor motion, invoked the informer’s uncorroborated assertions. give privilege to disclose For this the del- not would ernmental informer identity generally The court sus- which icate function law of the informer. judicial privilege counsel and defense officerand tained the reserves allows ruling. trial, only police acquiesced in At de- exercise officer to in lim- appeal given you by question whether should be Ernst? formation Detective possible.” [By Somerville] cor- A. Officer That made rect. appointments of counsel made We you any Did have other informa- “Q. year appeals during the calendar criminal concerning Defendant, one tion appointments already have No, I did or the other? A. not.” been made note 21 infra. 11.See * * * [By prosecutor] Did “Q. your you arrest on in- make based paid salary violation. re ited The He was no but situations. considerations delegation judicial justify ceived a fee for his information.13 justify police function not officers do reliability persons is ob- of such delegation informants. further to their viously suspect. The fact their in- produced in formation It is notorious narcotics have past justify taking in the reports former does is often himself involved their roundly paid for his on con- narcotics traffic and is often faith. Like the immunity cash, narcotics, approve- practice demned ment,14 ancient information punishment. present practice prosecution, or lenient informer condoning amounts to condi- Brandon v. United felonies pending us, suspected now felon before the informer that the confessed brings bail on about the others. narcotics user who was out conviction of gave charge expect- another she Under when such stimulation it very infrequent- ed that the will informer her Members information. ly shadowy leads, reach for seek or even Squad Ernst Officers Narcotics to which prac- the innocent.15 The incriminate past belong have Somerville paying tice of for fees to the informer drugs supplied an informer-addict may expected, the he cases makes also be obtaining supplies difficulty who had time, lure time to to induce him to through The illicit channels.12 normal drug and then non-users the habit into agent” “special em “special so-called or entrap them violations.16 into law ployee” Metropolitan De Police wisely reasons, For such law has partment informer in who served as circumscribed the use informers’ re- 1958, 108 U.S. v. United Smith making ports as a basis arrests. for un App.D.C. 48, then 254 F.2d was showing required reliability has a numerous and had had der indictment and some corrobora- the information17 including a narcotics one for quitted and accused violator narcotics District on the 12. Senate Committee “special employee” finding after that a Investigation Columbia, and of Crime Bureau, was the Federal Narcotics who of Co- in Law Enforcement paid $60 between for each case $40 Cong., S.Rep. lumbia, 2d 82d “made,” introduced he the defendant (1952). Sess. 15 drug and, when to the habit he became Donnelly, In- 13. Judicial Control See desperate drugs, him, induced in re Agent Spies, Pigeons formants, Stool intermediary shot, a turn for to act Provocateurs, Yale 1093- 60 L.J. Agent. in a sale to a Bureau (1951). 94 p. N.Y.Times, March 53. The “special judge system approvement, commented that em 14. Under “utterly ployee” untrustworthy approver who, “[b]eing was one ar- was undependable.” N.Y.Daily felony charge treason, raigned * * * News, March on a or p. only guilt and, The comment re 66. in or- confessed ported pardon, ap- made Nar have been der to obtain offered to peal Commissioner was lost cotics “we’ve other criminals called and convict Washington appellees appellees. other before.” Post- were If approver p. pardoned. Herald, B— guilty March Times found ap- appellees acquitted, And see Sherman v. United If supra hanged.” Donnelly, prover 356 U.S. L.Ed. Hale, 2d 848. See Pleas of the note at 1091. (1778). Crown 226 17.See, g., Draper e. v. United ago years in New York an in- 15. Some 307, 312-313, S.Ct. vestigation that, revealed vice of 150 Contee L.Ed.2d reports one stool cases based States, admittedly Hop- pigeon, 40 were framed. Turner, States F.2d 324. Cf. United kins, (1931). Police 105 Our Lawless D.C.D.Md.1954, F.Supp. 349; 4, 1959, Judge Weinfeld, Blich, D.C.D.Wyo.1930, On States York, District of ac- the Southern New legal arresting safeguard against within the offi- facts fective de- false knowledge. by irresponsible corrobora- cer’s own Such nunciations individuals by placing may by self-interest, obtained the sus- who tion pect be be motivated observing spite, paranoia. only surveillance or even under other The making safeguard e.g., con- whether his which remains not on rests behavior — good persons law police but on tact trade, known be will of the surreptitious pack- passing of officer. age support —tends give vitality requirement To story. reliability requires, proba- the law if no ble knowledge cause exists personal po information How much informer, identity making that his be liceman must have before divulged, reliability may so that his for all cases. arrest cannot be determined subjected meaningful judicial scrutiny vary, rule must Since circumstances accepted policeman’s reasonably rather than on a be stated in terms what is States, 1957, word. Roviaro v. particular inferable from the circum by prudent police S.Ct. In stances officer.18 holding present case, Roviaro that Govern- the ported re the informer had give privilege” ment’s petitioner getting “informer must would be disclosure, accused’s need off a train from New York with narcot dealing problem Court was with the ics. That the officer basis had sufficient legality making context other than the of an the arrest when he saw the arrest, principle clearly petitioner get but the off extends train settled to this context. Supreme Court said: the Draper Court’s recent decision States, 1959, United v. 358 U.S. the “Where in- disclosure an of 79 S.Ct. 3 L.Ed.2d 327. It identity, former’s or of the contents appear Draper would a when that communication, of his is relevant reliable informer tells an an officer that helpful to the defense ac- of an buy individual has left town to cused, or is to essential a fair deter- returning by and is train a certain at cause, privilege of mination time, policeman’s * observation of his * * give way. must Most of enough justify return is to an arrest involving the federal cases this limi- a warrant. scope tation of the inform- privilege er’s have arisen where the deprivation liberty by When arrest of legality of a search without war- justified by is a combination of in- an rant is in issue and the communica- report policeman’s former’s and a own anof tions informer to are claimed observations, policeman the less is probable establish cause. required significant observe, the more cases the Government has been re- report. becomes the informer’s Since quired identity to disclose the commonplace observation of so coming an act as informant unless there was sufficient by enough, home train is in com- apart evidence his confidential report informer, bination with of an Id., communication.” pages 353 at justify U.S. arrest, only significant 60-61, page 77 S.Ct. at 628.19 power limitation informer’s requirement easy argue arrest is the cause an of re- is that the informer’s liability. requirement reliability The by in- is established the fact that only former be petitioner really reliable stands ef- did have narcotics in See, Brinegar States, 1949, proposition: v. United its Scher United 175-176, U.S. 69 S.Ct. 59 S.Ct. 83 L.Ed. Draper 1879; 151; L.Ed. v. United Tong, v. Li United States Pat supra, page U.S., at note 313 of 308 Cir., 650; 152 F.2d Wilson v. page at 79 S.Ct. Cir., 1932, United Keown, approval D.C.W.D.Ky. States v. cited with four explicitly implicitly supporting F.Supp. cases against anyone deprivation But pocket for was arrested. when he argument liberty.22 recognizes that for their is too well established The law it validity be cannot an arrest only that protect the innocent police officer proven A its fruits.20 by imposing safeguards protect which basis make an arrest guilty as well. Weeks un supplied informer information States, 1914, 34 S.Ct. U.S. that on reason to less he has believe 58 L.Ed. 652. judicial post-arrest test Roviaro, principle Under report reliable to have can shown been be properly deter- District Court could not This is not on it. acted when the officer probable mine that there cause designed shield the rule a technical requiring petitioner’s dis- arrest without ultimately relatively persons who are few identity informer closure of of the designed crime; charged it report constitute whose was claimed to many po protection whom the suggests Nothing Draper such cause. charge. There is lice arrest but do the Rovi- has abandoned that the Court illegal every ar reason to believe that pointed principle. aro Indeed the Court leading produces evidence that rest identity in- Draper out many pro are prosecution, The treatment former was disclosed. charges nothing, no so duce requirement in Dra- of corroboration come to never arrests and the made suggests principle per the Roviaro many persons thus light.21 The innocent strictly enforced. must recourse have no effective arrested 375,875, ticular crime. All these — States, 1927, Byars charge.” 42 later released without 520, and 71 L.Ed. (1958). J.Am.Jud.Soc. therein. cited Prologue,” Past 38th And see “The Is example, a recent victim of 21. For Report American Civil Annual robbery re- of Columbia in the District discussing (1958), 84^-85 Union Liberties perpetrated ported three it was survey Chicago police prac- private Ninety per- negroes. “stocky” young : tices description answering ar- were sons sample study, based “The ACLU were detained them of rested —67 2,024 from selected at random file cases overnight. headquarters of None Municipal Chicago records charged with the crime. was ever 20,000 1956, that at least revealed inquiry During circum into the persons illegally hours were detained Superin roundup, of this stances 2,000 of defend- or more. Almost “large-scale stated tendent of Police days longer. were held for two ants unusual, interrogations” and he were and 400 were held for And between investigation specifically in a recent cited days charge, ‘without with- at least three during volving the course murders four any having set, been out bail vestige persons 6,170 were detained process having of law” of “due Daily Washington News, police. ” them.’ been accorded 1; Washington p. 5, 1958, col. Jan. Columbia, p. Herald, v. B- 22.In Nueslein District of March Post-Times App.D.C. Washington Evening Star, 90 note F. pointed 1958, p. Trilling 695 note this Court v. And see 2d B-1. despite great many U.S.App.D.C. 159, 167, out opinion). (concurring have held a courts search wherein F.2d unreasonable, only Allison, one Fed seizure Field Director of the L. Junius Legal found of an action for dam case was and Defender Asso- eral Aid National offending against ages ciation, recently officer. In wrote: least, figures reported by part, the reason for this at some look at “Let’s Reports in the notorious fact that most lie in the Uniform Crime FBI belong segment to a In 1956 the victims there the various states. 111,274 necessary society which lacks taken into cus- our individuals were tody knowledge bring suspicion. such ac means and These were pre course, This, any specific would also tions. connection with crime. invoking apprehended year, 264,601 the freedom them clude the same corpus. par- suspicion guilt writ of habeas where there least, me, very At it seems to concluding the issue no basis for presented plainly Ellis frivolous. here

v.

S.Ct. L.Ed.2d 1060. Richey, Mr. Washington, Charles R. C., appellants. D. SUEY, Appellant KAY WONG Harry Mr. Alexander, T. S. Asst. U. v. Atty., Gasch, with whom Messrs. Oliver ROGERS, Attorney William P. General Atty., U. S. Belcher, and Carl W. Asst. States, Appellee. the United Atty., U. brief, ap- S. were on the pellee. SING, Appellant WONG POO Before K. Edgerton, Wilbur Miller Judges. Circuit Fahy, ROGERS, Attorney General of William P. States, Appellee. the United PER CURIAM. Emily Appellant WONG, After submission of these cases involving questions of derivative citizen- ROGERS, Attorney General of William P. ship, the court addressed a communica- States, Appellee. the United parties to counsel to the Nos. 14699-14701. importance effect that in view of the the evidence of the result of blood tests Appeals United States Court of Wong Wong Kay Yem Suey, District Columbia Circuit. relationships parties, court desired Argued counsels’ advice as to the Feb. desirability being of the cases remanded May Decided to the so District Court that the record supplemented by could be evidence of Wong Sing; Wong blood tests of Poo Hung Hai, Emily Wong. In re- sponse, appellants ap- counsel pellee agree- they have advised that purpose

able to remand for the stated. appellee Counsel for adds if the cases are remanded we should direct that additional evidence be taken in other re- spects paternity. on the issue of foregoing In view the we shall re- mand the cases so that the record before supplemented the by evidence of results of the blood suggested. tests above See United States Hoy Murff, rel. Lee Kum ex 355 Wheth-

Case Details

Case Name: Anderson Jones v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 30, 1959

Citation: 266 F.2d 924

Docket Number: Misc. 1103

Court Abbreviation: D.C. Cir.