Lead Opinion
The defendants, William and Katherine Cohen, were tried to a jury on two counts of an indictment charging them with having sold heroin in violation of 21 U.S.C.A. §§ 173, 174. On two different occasions government agents had given marked money to informers, having first searched the informers to ascertain that they had no heroin at that time. In each case the informer, constantly under the gaze of the government agents, proceeded to meet the defendants, hand them bills, and receive something from one of the defendants. The packages given to the informers were turned over to the agents immediately after the informer had parted with the defendr ants, and upon analysis were determined to contain adulterated heroin. Shortly after the second of these incidents defendants were arrested, and William Cohen was found to have $16 of the marked money he had been given by the informer two days previously. The jury found the defendants guilty only on the second count, which related -to the later sale. Seemingly the discovery of the marked money in Cohen’s hands afforded the jury the convincing proof of defendants’ connection with the second sale which it appears to have found lacking as to the first. William Cohen was sentenced to five years’ imprisonment, Katherine to three years, and each was given a fine of- $1, which was remitted.
On this appeal defendants were represented by counsel assigned by the court, being other counsel than the attorney who tried the case below. We are indeed grateful for the diligent and faithful fulfillment of this task at the court’s behest and for the able argument presented on behalf of ■the accused. Counsel has urged six grounds for reversal of the conviction, viz: (1) The evidence was insufficient to sup
With regard to point one, the evidence of defendants’ guilt seems to us, as it did to the trial judge, clear; we certainly cannot say that the jury could not reasonably have found them guilty on the second count. As to point two, although counsel several times mentioned that he was planning to ask the court to examine the testimony before the grand jury, he never made a direct request to the court for such action. Hence there could be no erroneous refusal by the court. In any event we could hardly say that the court’s refusal to order the production of the minutes was an abuse of the wide discretion vested in trial judges as to this matter. Thus there was no reference of any sort to any of the various matters referred to in United States v. Alper, 2 Cir.,
Point three is without support in the record; it requires involved premises and distorted conclusions to discover in the question complained of any more than an attempt at identification of names used by the defendants, much less a suggestion or implication that 'the codefendant had been convicted of crime. As to point four, we find no error in the cross-examination of Katherine Cohen as to prior convictions of crimes, including misdemeanors. In United States v. Minkoff, 2 Cir.,
We turn, therefore, to defendants’ contention that statements of the prosecutor in his summation were so prejudicial as to require a new trial. This objection is based particularly upon the following statement by the prosecutor: “All we know from the evidence in this case, and we are restricted to the evidence in this case, is that this man Cohen was found stalking around the street at night, or at 4 o’clock in the morning, with a known prostitute, and part of the money that was given to her was found upon him, and in the law a man who lives on the proceeds of prostitution is not a painter but is, as the evidence indicates in this case, a pimp.” This was immediately followed by defendants’ motion for a mistrial “on the ground of that informal remark made by counsel, adverting to no testimony, no evidence in the record, referring to the commission of another crime with which he is not charged.” The court, however, denied the motion, saying, “I think this is fair comment.”
It is this passage which must be relied on to justify a new trial if one is to be granted. True, objection is made to this later statement: “Another thing you might consider. Why do these people give the address of 440 West 40th Street, when they did not live there? What were they concealing at their home? Was it because
The earlier charge that William Cohen was a “pimp” is of course more serious. That the remark was undignified for a representative of the United States Government, and in questionable ta-ste, may be conceded. But whether it was so prejudicial as to deprive the defendant of a fair trial must be decided according to the laws of evidence rather than the laws of etiquette.
If -the record afforded no justification for the prosecutor’s charge, we might be compelled tó order a new trial, Berger v. United States,
In this connection we need to have in mind the circumstances under which the statement was made, as well as its exact content. It was made to answer a definite argument of thé defense summation. In fact, the whole summation by the prosecutor, whether wisely or not, was cast in terms of answering the defense arguments. The prosecutor had already told -the court that -he did not expect to take more than five minutes for his argument; and he began by saying that he would try to keep within this time, “'but there are a few fundamental points.” With this he proceeded to recite specifically the contentions of his opponent and to answer them. The jury could not have failed to grasp this negative and defensive nature of his brief statements. The particular reference was his final statement ridiculing a defense claim that the extensive money found on defendant William may have come from his business earnings, Katherine having testified shortly that he was “a painter.” The prosecutor had just argued that they had had no opportunity to disprove this, but that the defense counsel was a very able and experienced attorney who would have produced the boss painter with his records to have proved these as legitimate earnings, had that been the fact. Then followed the matter objected to, which, as we see, consisted of four statements of facts and inferences. Before we note these more particularly, we should observe the caution at the beginning, “All - we know from the evidence in this case, and we are restricted to the evidence in this case" with the like caution at .the end, “in the law a man who ■lives on the proceeds of prostitution is not •a painter but is, as the evidence indicates in this case, a pimp.” (Italics supplied.) This was certainly explicit warning to the jury that only the evidence as recollected controlled and that this was the prosecutor’s inference from the evidence.
The prosecutor’s four statements were that William Cohen was found “stalking around the street” at night, that his companion was a known prostitute, that part o-f the money given Katherine by ¡the government informer was found on William, and hence that the evidence indicated that William was living -on the proceeds of prostitution. The statements ' of fact were either quite true—thus Katherine, indubitably William’s companion, was certainly a known prostitute, with eight convictions on this charge, by her own admissions—or else involved inaccuracies in the prosecutor’s recollection of the evidence which did not change the picture. Thus at the time of his arrest he was actually in a restaurant;
Beyond these details, the general inference 'that the $755 found on William at'the time of his arrest came from Katherine is reasonable on the basis of the evidence. The explanation for the funds given by Katherine on the stand was fantastically unconvincing. It was her claim that she and William had withdrawn the money from a Christmas Club account with the Girard Trust Company in Philadelphia in late December or early January. She said that they normally celebrated at the time of the Turkish Christmas, January 14, but that in this year they were late and were still carrying the money with them on March 25 for the purchase of Christmas presents. This improbable tale was demolished by the showing from the Trust Company that no withdrawal had been made at the time mentioned which could possibly have been the money which the Cohens claimed to have withdrawn, and further that neither of the Cohens had an account there at the time. The funds involved must have come from somewhere. The claim that these were his earnings as painter deserved the prosecutor’s treatment of it. That, being demolished, left William without visible means of support. On this record the prosecutor’s inference that the money found on William was his wife’s earnings from her sordid profession was not beyond the bounds of reason. There is perhaps technically a further step to the conclusion that he was a pander or procurer, though in Lander v. Wald,
In general it is within the discretion of the trial court to determine whether or not invective based on the evidence and inferences flowing therefrom exceed the limits of professional propriety. An appellate court will review the exercise of that discretion only where the invective is so palpably improper as to havé been clearly prejudicial. Johnston v. United States, 9 Cir.,
. In La Feber v. United States, 8 Cir.,
Judgment affirmed.
Dissenting Opinion
(dissenting).
If the only question were whether William Cohen was in fact guilty, I should have no doubt that the conviction -should stand, but that is not the only question; we must also be satisfied that the jury was not influenced by what the prosecutor said, and personally I do not see how we can be sure. They acquitted both Katherine and William Cohen on the first count, presumably because none of the marked money was found upon Katherine; and if so, that meant that they were not convinced by the testimony of the officers that they saw any money pass to her. Of course it is true that if the money was in fact found on William, his guilt was established beyond doubt, but the only evidence that it was so found was the officers’ testimony, and how can one know that the summation may not have influenced the jury to accept it? When I remember the solicitude with which all irrelevant evidence is excluded which can divert the jury from the issues to which they should confine themselves, I am unwilling to overlook this loathsome charge, not only made without adequate support in the evidence; but, so far as it was supported at all, supported by the misuse of Katherine's convictions. When she took the stand, she admitted that she had been again and again convicted of prostitution, and of other crimes; but such evidence has never been admitted except to discredit the witness (little as we may believe that its' effect will be, or can be, so limited). A prosecutor may not use it as evidence of another crime; yet this prosecutor said literally not a word about William’s connection with the sales in question, and devoted all of his -short address to the charge that William had exploited Katherine as a harlot, and that the money found on him was the result of her earnings.
The excuse is that it was a proper answer to the defence’s argument that William had earned the money as a painter. I agree that that was absurd, and that it was proper to expose it unsparingly; moreover, I agree that if evidence relevant to the crime for which the accused is on trial discloses another crime, the accused must abide its use; he cannot have immunity for one crime because -he has committed another. But in the case at bar not only was it by diverting the evidence of Katherine’s convictions front their proper use that the charge got even such support as it had, but in addition that support appears to me altogether insufficient. It showed nothing more than that Katherine had been long a prostitute and that William had a large sum of money, for whose source Katherine could give no rational explanation. Nobody can of course be sure that the money was not her earnings, although- her last conviction for that offense was in December, 1945, more than a year before the money was found on William; but I cannot imagine that anyone would maintain that this evidence would have supported a conviction of William as a procurer. Both were shown to be engaged in dispensing heroin, an occupation which may well have netted them as large a sum of money. Katherine was an utterly abandoned woman, convicted of larceny as well as prostitution; what they did not make in selling heroin, they may have stolen.
But, even if there had been evidence to support the charge, it was completely irrelevant to that for which William was on trial, and which alone he was advised that he must meet. That might not have been enough, I think, to upset conviction, had it been only an incident in the summation'; and if the judge had corrected it. But it was not an incident; as I have said, it