United States v. William Erness Thoresen, United States of America v. Louise Banich Thoresen

428 F.2d 654 UNITED STATES of America, Appellee, v. William Erness THORESEN, Appellant. UNITED STATES of America, Appellee, v. Louise Banich THORESEN, Appellant. No. 24432. No. 24433. United States Court of Appeals, Ninth Circuit. June 8, 1970. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED John H. Westover (argued), of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., David C. Schutter (argued), of Honolulu, Hawaii, Urban A. Lester (argued), of Ford, Ayer, Horan & Lester, Washington, D. C., for appellants. Jerrold M. Ladar, Asst. U. S. Atty., Chief, Criminal Division; Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee. Before HAMLEY, DUNIWAY and ELY, Circuit Judges. HAMLEY, Circuit Judge: 1 William E. Thoresen III (Thoresen), and his wife, Louise B. Thoresen, appeal separately from their convictions, after a joint non-jury trial, of 1967 violations of section 2(e) of the Federal Firearms Act. 1 Section 2(e) read as follows: 2 "(e) It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year or who is a fugutive [sic] from justice…

William E. Thoresen III (Thoresen), and his wife, Louise B. Thoresen, appeal separately from their convictions, after a joint non-jury trial, of 1967 violations of section 2(e) of the Federal Firearms Act. 1 Section 2(e) read as follows:

Thoresen was convicted under counts one and five of a ten-count indictment returned on March 6, 1968. Counts one and five charged that on February 24 and March 15, 1967, respectively, Thoresen violated section 2(e) by shipping described rifles in interstate commerce after he had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The prior conviction referred to in counts one and five, obtained upon a plea of guilty to grand larceny, was entered in the Superior Court of Hancock County, Maine, in September 1959. The grand larceny conviction involved the theft of six travel posters, having an assigned value of $150, from the Bar Harbor, Maine, terminal of the Canadian National Railway’s Nova Scotia ferry.

Mrs. Thoresen was convicted under counts one and two of the same indictment. Count one, described above, charged Mrs. Thoresen as well as her husband as a principal. But in her case the antecedent event that…

(concurring):

While I concur in the majority’s opinion, I must record my concern over the prosecution’s failure to allow reporting and transcription of the grand jury’s proceedings. Misgivings arise because the prosecution, by its deliberate conduct, established a basis for suspicion that it demeaned itself by engaging in a “eat and mouse game” wherein grave personal rights were at stake. I have never been able to accept the proposition that while extensive discovery promotes the cause of justice in civil controversies, any right to discovery on the part of a defendant in a criminal case must be severely curtailed. In the light of the relative gravity of the possible consequences of the ultimate disposition of civil and criminal proceedings, the disparity of treatment is at best inexplicable and at worst intolerable. It is not fair, I think, that the Government may use whatever notes it can take at a grand jury hearing while avoiding, by the simple expedient of not allowing a court reporter into the hearing, any possible duty of delivering a transcript of the proceedings to the affected defendant. 1

I am aware that the Supreme Court has stated that federal courts may not order…