*1 America, UNITED STATES Appellee, KAHANER,
Elliott Corallo and Antonio Keogh, Appellants. James Vincent 253, Docket 27784.
No. Appeals
United States Court
Second Circuit.
Argued March 1963. April
Decided 1963. May 27, Rehearing
On 1963. F.Supp.
See also 204
Murray Gurfein, City I. New York McGrath, (John P. New City, York Henry Singer, Brooklyn, Y.,N. G. Orrin Judd, Heller, Jacob W. New G. York counsel), appellant City, for James Keogh. Vincent Eugene Gold, Kleinman, suggestion District. William No W. has ever been appellant jus- Elliott Brooklyn, Y., made that the N. for due administration of obstructed; tice in fact Kahaner. the evidence slightest degree does not reflect in the City, Direnzo, York Michael P. New former Assistant United Attor- States appellant Corallo. for Antonio ney Williams, Averill M. who was Lally, Hundley F. and John William G. charge prosecution direct in the Attys., Dept. (Robert Mor M. of Justice District, Eastern or on Leo F. Atty. genthau, U. Southern S. Rayfiel, before whom Moore and the oth- Lewin, York, District of New Nathan er prosecution defendants in that came White, Barnes, Philip T. T. Walter sentencing. brief), Attys., Justice, Dept. of January 5,1961,1 Moore, On Sanford J. appellee. Kerner, Schwach, Sherwood Allen Alvin CLARK, WATERMAN Before Needleman, Cohen, Jacob Walter Judges. FRIENDLY, Circuit Abraham Manacher were arrested charges Eastern District on of conceal- Judge. FRIENDLY, Circuit bankruptcy assets from the trustee in *5 Kahaner, and Elliott Antonio Corallo Amusements, Ltd., juke of Gibraltor a Keogh appeal a James Vincent enterprise Long box on Island of which judgment District of conviction in the president prin- Moore had been vice and New of for the District Court Southern cipal officer, and the others had been trial, upon a York presided a verdict after employees. Cohen, or officers who had W'einfeld. over relatively employee, been a minor had a they, charged Robert M. indictment Seymour cousin, Deutsch, ac- who did conspired J. Moore Erdman and Sanford counting Erdman, work for Dr. Rоbert six co-con- and with each other with physician. a Manhattan At the instance influence, spirators corruptly obstruct Cohen, of and later Deutsch of Erdman jus- impede of administration the due or January communicated sometime in with so, do in violation endeavor to tice or to Kahaner, then Chief Assistant United to which The case of 18 U.S.C. § 1503. Attorney District, States for the Eastern alleged conspiracy directed was patient who both a and a friend. At charge or Moore and other officers a point diverges. the evidence The fol- Amusements, employees of Gibraltor lowing statement is drawn from the Gov- guilty Ltd., of criminal con- had been case, mainly ernment’s which was based in bank- of assets that firm’s cealment ruptcy proceeding of Erdman and Moore— Eastern District in the concededly interested re- witnesses—who York; various overt were of New acts cooperation ceived in return for their not placed in the District. Trial Southern only postponements of trial on their own Moore, and of Erdman Government’s but, case, indictments here in Moore’s a against principal witnesses the three years reduction from three to one in his appellants, was severed. bankruptcy charge. sentence and trial in that, The indictment this case The Government’s claim was fol- particular lowing attention because attracted the first conversation between identity appellants'— Kahaner, plan of two and a Erdman was devised widely Keogh, respected whereby a known and Kahaner would endeavor ar- Supreme range Court of New Justice or two at most three of Kings County, Kahaner, persons for York and arrested would be indicted (these Cohen), had served as Chief Assistant Unit- who not to include and that Attorney Acting later, and later States Kahaner ed after found that the As- Attorney Attorney proposed for the United States Eastern sistant States opinion cept 1. All dates in this are in Part III where the dates relate conspiracy when the is claimed to have to the trial investigated, occurred and was later ex- York testimony, paid before hesitation Moore his financial needs month Erdman went ly by Erdman see Justice later. against for a unsavory background, and thereafter. understanding ond specific judge broadened, Kahaner was to seek Kerner Kahaner the men to be [Kahaner] part Erdman, Erdman’s officeon Justice, enlist his aid. one, monetary Supreme having hold the at the Shortly the indictment Moore because and Schwach—the “pressures” “would and also undertook wanted so later sentencing, who, Moore and indicted] urging paid $5,000 a that, Court thereafter consideration, remaining $20,000 until see to supplemented *6 according accepted the case talking $35,000”. After some April, Around the on a card $15,000 to the chambers to be of assistance February it that were brought Kahaner Erdman’s Corallo, and that Kings suggested that three — of a new being applied to treated day towas he plan was indicating end which Erdman’s by proposal, first County, handed latter’s Corallo Moore, words, a [i. soft- would New told met car. two sec- e., basically Rayfiel presence from the advice;3 Moore man, mony, haner, at prison; balance of the to Justice March coffee fiel asking nied tencing Becker, stating graphs, tance to him $2,500, day; is recited $17,500 The Government’s Kahaner which probation report arranging everything relating and a and '2 shop still be continued with Moore and followed Erdman’s with the a demand Kahaner on Erdman’s and Moore’s Corallo Keogh’s chambers, paying him pleaded in on which Judge Rayfiel bring and reminding him telephone of Moore’s scheduled presiding. money; the two sentencing that this was to lunch that Keogh categorically Kahaner exceptions emphasized the morning Corallo guilty, on Moore. day case, still paid Kahaner for the call in Erdman’s Kahaner foregoing para- meeting meeting to them which their at Judge Rayfiel an additional being indicated Judge Ray- going against March March following attorney, Brooklyn day the sen- set of Erd- resting sent impor- testi- alone him Ka- for de- *7 evening attorney, told his who that they went to the of Justice chambers Becker, to withdraw his that he wanted Keogh; reported Erdman testified he guilty plea. Judge Rayfiel his lack of success with Keogh Keogh Judge again, that at also conceded and asked to call the Justice arranged according Keogh whereupon, Erdman, request Erd he for to Erdman’s morning Judge Rayfiel telephone apparently up man picked to see and so; Becker, latter ascended of March 30 before the who said he was excused Moore and his co- the bench to sentence for most of the time that the room from Keogh Judge Rayfiel talking, that no defendants. said and Erdman were testi- leniency Keogh it, could be The extended. steno he inside while was fied that transcript graphic again.” shows that when Erdman, him Erd- “Go see told Moore, appeared they Kerner and Schwach then Becker testified that man and Building court, where, for leave with Federal Becker moved to to the returned according guilty Judge Erdman, pleas, whereupon he Kahaner draw their visted Judge Rayfiel accompanied remarked “shall I the latter that this was and say, very palpable, chambers, Rayfiel’s and I which Kahaner en- am sure that judge’s you just mean”; saying tered, ask I know what that after would colloquy, secretary that the to tell the Gov- some which Assistant Attorney oppose op not withdrawal of Williams would States ernment saying guilty plea posed pleas, also and he would Attorney case withdrawal placed at United States the bottom of the sentenc Assistant tell fight ing calendar; the withdrawal. that a conference not was Williams physician was his friend. Later to some and corroborated This version requested Jaspan to at office incon- Justice’s rather but was Moore extent 22; May meeting a tend in-chambers after Becker’s sistent with arriving there, found, Jaspan chambers, upon Rayfiel’s Judge visit Justice, Erd addition man, Moore and mo- to the don’t make “Please said Erdman introduced, and whom pleas.” the Justice to withdraw tion Forman, Judge Rayfiel’s a business associate Louis going cham- denied inquired what was Moore’s. The participating Justice otherwise bers or regard proposed happening set 30; morning and March events Jaspan an in Moore’s case. any participation tlement Keogh denied .Justice prepared to trustee was calling Judge Rayfiel swered that the for for then save acceptance $50,000 in Erdman, recommend lat- at the appointment for by Erdman, but that endorsed presence— notes request in Becker’s ter’s and knowing way this whether “had no being him to call made help the matter them in that end. Judge Rayfiel,” offer must According Moore, there not be conditioned on a reduction of sen tence, meetings defendants were several emphasiz also Kаhaner, April, of which in the course ing May Moore, ap this. On whose suggested .among things, other stay pending petition plication for might least saved situation still be Judge certiorari our affirmance of by an ameliorated offer of restitution Rayfiel’s denying order leave to with from Moore. Justice Kahan guilty plea, draw his 290 F.2d n er agreed Erd lunched with denied, Jaspan just been delivered meeting April man on but testified this signed by $1,000, and Erdman for check arranged had been before the sentenc twenty-four notes, $1,000 a series fact substantiated Kahaner’s —a $25,000, Moore and one telephone purpose record—for the of en by Erdman; and endorsed he asked Jas listing project the Justice’s aid in a Judge Rayfiel pan inform of this. have Kahaner continue for some time attempt After an unsuccessful to com n underthe newly appointed United States Williams, who, municate with it was Attorney, Moore’s case learned, had severed his connection with concededly (cid:127)discussed. testimony disinterested Attorney’s office, United States Jas Joseph Jaspan, attorney Judge Rayfiel pan appoint called for an bankruptcy for the trustee in of Gibral ment; willing make Amusements, Ltd., provides tor a thread representative only if n through one the United April May. the events Attorney present, sug States Keogh's .Jaspan try was in Justice court *8 gested Jaspan Kahaner, that call ing part April, a case the latter of saw being After Assistant. referred Chief sitting there, approached Moore and him 'Kreindler, by to the chief of Kahaner (cid:127)during a recess. Moore said he was Division, result, Criminal without apply to for a about reduction in sentence again Kahaner, agreed Jaspan called who prepared pay and wаs in to restitution Becker, attend, pre also had Erdman; and who $50,000 by in notes endorsed payment pared offer of restitution. When the asked whether if such he Judge lawyers appeared made, Jaspan trustee, or the M. Hallsted three afternoon, Rayfiel go Judge Rayfiel that Christ, Becker said he “would apply for a reduction intended of sen plea for a him.” After make further of the because restitution April 27, tence Moore discussion with on Jas Keogh’s pan applica in to know whether oral was back Justice wished court on entertained; Judge eaxly Rayfiel May; other matter be this would tion Jus point Kahaner him raised called it would. tice side-bar and in said petition for certiorari quired happening” as to “what was a review adjudica case, saying affirmance of the the Gibraltor Court’s this
467 457, 469, bankruptcy, 315 U.S. Gibraltor In re tion in Cir.), (2 (1942). 86 Ltd., L.Ed. 680 our outline Amusements, 22 Thus 291 F.2d Amusements, has Ltd. not included adduced denied, much evidence cert. Gibraltor by defendants, Co., S.Ct. discredit 82 tended to v. Wurlitzer testimony pending, Erdman’s and in es- (1961), Moore’s L.Ed.2d 190 respects, although sential application some this of questioned whether the will be mentioned below. be en reduction of sentence should for a petition with unless the tertained Every imposes criminal case defend The said that drawn. special responsibilities judges. These on following should surrender on the ants sharp are enhanced when a con there is scheduled, Monday indicated as but flict in the and the Govern evidence pending a then bail continue he would depends large part ment’s case testimony hearing application reduction on guilt persons of of admit who sentence. of the crime with defend which the other by Jas- framework afforded To the charged. responsibilities are ants The evidence, Moore an- pan’s Erdman and greater become the case still when markedly nexed much as deprivation or, life as threatens by participation greater interest and here, imperils makes life much that negotia- Keogh in the settlement Justice reputa while—in worth one instance a particular In claimed tions. years public over tion built service offer a draft of the settlement reviewed culminating judicial office, and in eliminating on a condition insisted young lawyer’s promising a another ca a of sentence—but with reduction toas say reer. Yet we must also that of further conversa- indicative remark charged attempt offense here to in —an Judge Rayfiel would make with tions jus with the terfere administration damaging Keogh rather than this very tice—strikes foundation conceding Keogh, while reverse. government, high position and that the Jaspan at with a discussion community held of the de one meeting had in side-bar fendants, and the role another May 22, partici- denied his chambers aggravate prosecutor, federal making any meeting, re- pating in the The occurred. institution offense—if seeing Judge Rayfiel or ever about mark arrangement power al our latter; to the extent that he conceded ques leaves such awesome Constitution taking interest the settlement some determined, guilt not tions negotiations, he attributed this judges, appellate jury of but trial de- friendship Erdman. having laymen, Government telephone any participation save the nied heavy appropriately of convinc burden appearance Jaspan be- and his calls guilt men or women twelve Judge Rayfiel May 31. Corallo fore beyond defendant each reasonablе phase implicated not If the evidence was sufficient doubt. alleged conspiracy. jury, submission to the it is warrant foregoing weigh account, judges rather “to the evidence or be, credibility witnesses”, long is skele it has turned out to determine States, supra, is intended v. United in the extreme and Glasser U. tonized *9 469; background task, needed 62 S.Ct. at our once afford the to S. understanding points satisfied, find the that condition is the raised on this we determining Moreover, summary one of limited whether appeal. the leans more prejudicial direction, to the defendants oc Government’s since on errors the jury’s at the trial. Even the bare from a verdict in a curred out appeal crim given must, considering that the we shows evi the evi line inal case dence, was sufficient so that reasonable take “the view most to dence favorable guilt Government”, juror the could convinced Glasser v. the Keogh. appellants beyond hearing each of the a reason- Justice After the prosecution’s request able doubt.4 case Government Both the withdrew its strengths production message books, and the defendants’ their but Keogh’s weaknesses; and their it was for trial counsel contended that the jury, instructions, proper de- developed under facts that had been showed pass previous cide between them. So we Government’s access many pressed upon illegal us. claims of error to the an books constituted search required and seizure and further thus We have all these with considered hearing to determine the information care; opinion our itself to will confine that had been obtained and use to significant. For those we deem most put. which it had been The claim was convenience we the claims shall dividе that the Government had used infor- categories: (I) into Those three relat- mation to “refresh” Erdman’s recollec- prior to matters which arose testimony tion so that his trial as to judge’s charge; relating (II) those dates Keogh times of with his contacts charge itself; (III) re- those messages would tie in re- lating occurring subsequent to matters Keogh’s grand books, corded in his jury. to the submission to the jury testimony July August, 1961, allegedly had not. Arising I. Matters Prior Judge’s Charge. The Government answers that (1) Alleged use ob- consented to the examination of of information message books, giving tained search and seizure. both ad unlawful Keogh complain permission Counsel for express vance never grant hearing, ing any objection knowledge despite court’s refusal his 41(e), place.5 under F.R.Crim.Proc. as to the examination had taken argues Moreover, Government’s use of information from that even if access personal message telephone books, illegally obtained, his al- had been the motion legedly illegal hearing looking obtained suppression search and for a untimely seizure. The as to facts how the Gov- the fruits of the search was un 41(e), coming, ernment obtained access to these books der F.R.Crim.Proc. as it hearing developed did, long at a outside the in mid-trial and after presence jury, when the Govern- had learned that the “search” had been sought compel production ment their unnecessary conducted. find it We during presentation pass its case contention, on the latter Keogh’s objected, apparent- trial require counsel consider, among us oth ly against privilege on the basis of the things, requirement er whether the self-incrimination, also, to some ex- a claim “if such is made after the trial * * * thrоugh tent, given by way, later is under must may position 4. The outline not have shown this Government’s not incon- respect Corallo, who, request with its withdrawal of sistent evidence, adviser, was an production books, Government’s even if the stimulator, perhaps tempo- or rary and a on a latter was based belief that the evi- of some hearing holder of the funds. But dence adduced at the failed to es- ample ques- by Keogh privilege there was evidence to raise a a waiver tablish against his joined tion for the whether he had self-incrimination. For the evi- conspiracy; found, so dence could well have been insufficient to criminally responsible “binding pledge” for the acts such a show to waive the conspirators privilege the other and his own as would entitle the Govern- perform require failure to more than produce a few overt ment to defendant to Note, papers acts would be immaterial. See posses- De- that had remained in Law, velopments sion, Wigmore, Criminal (Mc- Con- see 8 Evidence spiracy, Naughton 1961), 2275, yet Harv.L.Rev. fn. 168- rev. § suffi- (1959). Corallo take the cient to show such consent to their *10 negative stand. examination as would an unlaw- evidently Quite ful search. this was Judge Weinfeld’s view.
469
was,
whereupon
took,
“They
I
could
believe
be satisfied that the accused
adequate
stage
current book
hard cover
had
with the
earlier
through
knowledge
pages”.
Nardone
it and
skimmed
to make
claim.”
his
Keogh
338, 342,
day
60
one
States,
v.
testified
308
that later in
United
U.S.
(1939),
agents
266,
re
268,
the clerks
thumbed
S.Ct.
471 a car was man’s reference to the 1959 part Keogh win- of of a car 1959 and storm that, first their of his statement dows, 1960, had him lent $2500 Keogh case, discussion the Moore said of him of on June made a further loan $1000 got a “that car I him in 1959 was testified, 28, 1961, when, as Erdman new little old he could use a Keogh going Bar- “said he to Great was car”; 1960 the storm windows and rington and more that he needed some loans related summer to the Justice’s money,” and, July had sent Barrington, home at re- Great further a $500, him further check for quirements for which were listed on testifying Keogh had so- that Justice given card which Erdman was claimed licited this in terms rather similar to the meeting; to him at the same state- previous loan, Keogh where had tes- allegedly ments of financial need grand jury tifiеd before the July, 1961, June and show that tended to judge unsolicited. The admitted evi- Keogh money needed Bar- for the Great “solely showing purpose dence for the rington project and thus and otherwise relationship and association between support story Erdman’s cor- to the Keogh Erdman”; the defendant rupt transactions; phrase and the “some reiterated this limitation the trial money” description more in Erdman’s charge, adding “There is no part the June loan conversa- payments claim that the loans were possibility tion where the of Moore’s conspiracy” furtherance of the seeking allegedly a refund was also dis- respect may “in no as to cussed. gifts court’s restriction on the relating any the loans or or exhibits purpose might jury for which the con- proof thereto be considered as of the con- although evidence, sider the spiracy charged.” doubtless here Counsel wise, operated urge thus Keogh to defendants’ ad- the admission of the evidence vantage. error, danger claiming jury’s viewing gifts and loans We see no warrant for coun corrupt as evidence of other endeavors likely sel’s fear that the take outweighed any probative value the ma- proving generally this evidence as bad showing friendship terial had as be- previous corrupt character efforts Erdman, tween Justice and Dr. justice. influence the administration of which the defense had conceded. sugges The Government made no such tion, expressly court hardly narrowed There can be doubt that purpose for which passed the evidence could the evidence vancy; the basic test rele However, be considered. if in evidentiary fact “the fact offered does susсeptible evidence full, of such use de strong, not need to superlative, have spite limiting instruction, probative value, its admis does not need involve sion would still not call produce for reversal persuasion demonstration or to inadmissibility “the force, since of an merely its sole eviden and intrinsic but purpose pre tial one fact does not to be worth jury,” consideration 1 admissibility Wigmore, any (3d 1940), pur Evidence vent its pose other ed. Wigmore, proper.” otherwise 1 type A relationship could well believe the supra, 711. Even the evidence had which these transactions improper more far liable to been use likely tended to establish was far more was, held, produce, than it “As we so often proof produced, or to have an attitude might relevant one suggest evidence of mind in which incompetent because crime is it dis financial reward for an intercession with Judge Rayfiel the commission of another.” closes Unit than a relation between Eury, (2 F.2d patient ed States developed doctor that had citing many 1959), True, cases. friendship. Moreover, Cir. into close char should, in an gen exercise the trial these acterization of incidents discretion, “gifts exclude evidence phrase tend sound and loans” consider eral significance. the commission of other to show ably their understates Erd- anything peg person rele minute who crimes “where vancy *13 say person entirely in behalf to be about obscured will be challenge hung v. upon sentenced.” dirty it.” State There was linen 300, point 367, P.2d defense’s Goebel, 218 36 Wash.2d might believing McCormick, 306, Evidence was warranted in he in cited properly 28; v. discuss with (1954), 333, cf. Moore’s sentence fn. Grunewald 424-425, Rayfiel, although, 77 on own tes-
United
timony,
(1957). But
the aid
was
he could affоrd
1
931
L.Ed.2d
S.Ct.
scanty
solely
judge’s
relevance
his motivation was
what
that the
conclusion
—if
outweighed any
he claimed it to
It is
see
tenden
be.
thus hard
evidence
of this
that,
relevancy
showing
cy
prejudice,
the caution
of evidence
with
to undue
gave,
repeatedly
experience
ary
as
result of his
United
he
instruction
discretion;
Attorney
years before,
States
he
a dozen
an abuse of
in no manner
equally
evi would
indeed,
have felt
in hav-
think exclusion
warranted
wrong.7
a similar
been
discussion with other
dence would have
judges who at that time had been on the
(4)
evidence
Exclusion
along
bench of the Eastern District
judges
practice
other Eastern District
Judge Rayfiel,
junior judge:
then the
presentence
Ob-
to receive
information.
“[L]egal
all,
relevancy denotes, first of
jection
refusal
is made to the court’s
something
pro-
more than a minimum of
whether,
testify
allow Justice
single
bative
piece
value. Each
of evi-
period
when he was
Wig-
plus
dence must have a
value.” 1
Attorney for the Eastern District
States
more, supra, at 409-10.
did
The court
accepted
1945-1949,
an
“there [was]
in
practice
concluding
not err in
proffered
that the
* * * every
federal
evidence did not meet this standard—
Brooklyn,
information from
in
to receive
particularly in view of the areas that
report
presentence
than
other
sources
might
opened
have had to be
for rebuttal
background
family
on the
status
by the Government if the
evidence
sentenced”;
persons about to
he was
be
been
judges
admitted. Trial
have wide
Judge Ray-
testify
permitted to
“it was
discretion to exclude for
remoteness.
try
practice
other than
to obtain
fiel’s
Birden,
Duvall v.
124 Conn.
198 A.
any
through
Department
the Probation
(1938); McCormick,
255
supra, at 320.
might
information that
clergymen, relatives,
come
friends,
(5)
so that
Cross-examination
Ka-
panorama
respect
haner
brokerage
could evaluate the entire
to his
ac-
background
person
particular
complains
counts.
of the cross-
Judge Rayfiel
pre-
respect
be sentenced.”
examination with
to stock trans-
viously
margin.8
that “within
actions
stated
the limits
set forth in the
On the
available,
that was
I would talk redirect
the time
immediately,
followed
Mullens,
People
you purchased
N.E.
“Q.
7.
N.Y.
Isn’t
it a fact
heavily
(1944),
$95,000
relied on
coun-
2cl 479
worth of stock? A.
I have no
distinguishable
Keogh,
sel
amount,
Hundley.
idea of the
Mr.
I use
opinion,
ground,
that “Solo-
stated
my
an investment
adviser who trades
make use of Bitter-
mon’s habit
so to
buys
account as he sees fit. He
and sells.
already been
name had
demon-
man’s
you
$95,000?
If
mean a total of
undisputed”;
hence
strated
say
bought
A.
“Q. Yes.
I would
I
merely
a “remote
evidence showed
stocks,
stocks and sold
some of which
clearly pointing
rather
fact”
cumulative
replaced.
I don’t know the total
conduct, and its admission
to criminal
amount.
Here,
abuse of discretion.
even
you deny
$95,-
“Q. Would
it was
assuming
evidence to have been as
Mullens,
prejudicial
as that
which we
000?
markedly
probative
doubt,
more
it was
Objection,
your
“Mr. Kleinman:
aspect.
its relevant
Honor.
you
Kabaner,
purchase
“The Court:
I will allow him
Mr.
to an-
“Q.
any
year
1961? A.
swer.
stock
Yes.
any
purchased
under
3500 would
ernment
given
18 U.S.C. §
had never
that he
testified
large
cash
to defense counsel without
with cash
stock
request,
of Mrs.
brokerage
need of
Kippe’s
a statement
such
accounts.
deposits
or other
ap-
produced until
she
stipulated
later
It was
witness,
brokerage
peared
ac-
when
a defense
money deposited in his
marked for identifica-
Jan- Government had it
check
in 1961 was $200
counts
slight
large figure
and made
use of
tion
some
uary 28;
hence
have examined
cross-examination. We
only have
questions could
prosecutor’s
*14
statement;
in full
the
it is
accord
pro-
purchases made
represented
given
very
testimony
by
the
Mrs.
already
limited
from the
securities
ceeds
sale
Government,
Kippe
a
the
as witness for
prose-
the
is that
The contention
owned.
by anyone.
disputed
which was not
ques-
he asked the
knew this when
cutor
complained
the
Kahaner’s
also
brief
so, and
quoted. If this be
we have
tions
any
failure to furnish
Government’s
deny it,
does not
the Government’s brief
by
George, an em-
statements
Rose St.
regard this cross-examination
must
we
Attorney’s
ployee of the United States
to
seems otherwise
a blemish on what
office,
Miller,
and Dr.
an
Fred
FBI docu-
although
fair,
prop-
entirely
have been an
expert
ment
who testified on rebuttal
presentation
erly vigorous,
the Gov-
to certain obliterations in Kahaner’s
stopped
But
court
ernment’s case.
the
diary;
it asked that the Government tell
early stage,
inquiry
Kahaner
the
us whether
exist.
such statements
right
largely
mo-
matters
a few
set
The Government has advised
there
later,
stipulation
finished
ments
report by
a
Dr. Miller
made to the
job,
mat-
and no
further reference
7, 1962,
day preceding
FBI on June
made. Under
circum-
ter was
these
testimony;
read
find
we have
it and
stances,
we
cannot consider
findings
simply summary
it to
though
prosecutor’s questions,
unfair
to which Dr. Miller testified.
ob-
These
been,
them have
such
deem
created
jections thus
under the
er-
fail
harmless
prejudice as
to call
reversal.
rule,
Rosenberg
28
ror
U.S.C.
§
(6)
States,
367,
Failure
Jenchs v. United
furnish
against
1231,
(1959).
Act statements
witnesses
for.” Government
was asked
grand jury testimony
and other
Moore’s
recollection
rather
Moore’s
grand jury
than
questions
to his
what
reference
he said at
As to
the trial.
largely
showing
testimony proved
point,
surprise
unsuccessful.
the first
exculpated
completely
requirement
Corallo
met the
He
rather modest
Graham,
such
the latter’s cоunsel.
cases
cross-examination
as United
States
sought permis
prosecutor
denied,
Thereupon
(2
102
Cir.),
F.2d
442
cert.
grand jury
Moore on his
307
sion to examine
U.S.
59
L.Ed.
S.Ct.
83
surprised
testimony, stating
(1939);
States,
that he was
Ellis v. United
(8
1943);
since it
F.2d
Moore’s trial
616 Cir.
Weaver v..
substantially
States,
1954);
(9
Moore
different from what
tinned March 30 to May, might claims of the Govern- declara- swers various it consider acts co-conspirators that ment. tions of all period conspiracy’s in furtherance of (1) ques- Counsel Kahaner did right. objectives. entirely This seems paid $35,000 tion Erd- that Moore had corrupt man in aid to in- endeavor B. justice. fluence the administration of heavily Appellants rely more joined generally theory, His which was spe criticisms, general and both thеir by the other save that coun- defendants cific, judge’s treatment questioned sel for also whether general criticisms, that evidence. The money raised, ever had been stating judge spent more time Erdman intended from the outset case than defendants’ Government’s pocket money, exactly that, ignored points developed and that he then, iniquity discovered, when his in the defense cross-examination implicate Kahaner, decided to among Government’s consistencies gain Corallo in an effort to favor with the lacking witnesses, plainly rather are Government, joining with Moore in the general portion plan of merit. The endeavor for the same reason. More charge first the Gov state specifically, theory was that Erd- ernment’s case and then the defendants’ cupidity man’s had been aroused when he This method contentions. a traditional prospective learned the defendants helpful presentation rather one thinking engaging a well-known generally since it follows the Washington, lawyer C., $60,000 D. order the evidence has been plus $10,000 an estimated for disburse- heard, although necessarily in almost ; that, suggesting ments after first that a giving prosecu more volves time to lawyer New York could be retained for defense, which, case tion’s than amount, half that happy he had the things, nature of often take the must thought getting *17 money of this for him- form of a denial. We cannot believe by promising bring self about the de- juries by are misled method com of through means; corrupt sired result that menting evidence, any more than pressured he primrose Moore down the they are the fact that more time is path; ánd that he then lulled Moore and usually hearing devoted the trial to at the the other bankruptcy in defendаnts the prosecution of evidence the than of the security by case into a false sense of talk defense, which sometimes none at offers arrangements of with Kahaner and later Moreover, in all. doubtless an effort to Keogh of assistance from Justice which any prevent possible unfairness from this exclusively existed almost in Erdman’s organization charge, judge the of the re tongue. mind on and his Defendants interrupted peatedly of the statement the theory claim this received substantial case Government’s to include at least a support wholly from one of the disin- portion of the defense’s answer. And at witnesses, Christ, terested M. Hallsted very beginning summary the of bankruptcy the trustee in of Gibraltor. contentions, empha the defendants’ he shortly called say Christ Erdman had “point sized defendants to the incon July 13 to that the first of Moore’s sistencies and contradictions contained in had been *18 and Deutsch Cohen in the manner set respect the to the of margin.10 * * * the forth in The defendants Mr. Christ and of the letter level two attacks at this: July 13th, part that it is of the defendant theory assigned got Kahaner’s first that the The concerns the dates Erdman money noting telephone keep and call it.” to the from Kahaner [sic] After to argued meeting that point counsel had to the Erdman Erdman’s the Moore, judge point summation, his Deutsch and Cohen. At one de- the gave clined. examination Moore his direct the request conveyed “Thereafter, according Erdman, past 10. man Kabaner’s and in- to Deutsch, to Cohen and formation Moore. February, the second week of Kahaner Moore, Erdman, addition “In to called him and said three of ar- those Cohen, alleged other the Deutsch indicted; rested would be three would сonference, testified; participants in the not, and that he would see in- that the as there are differences to and while some softly dicted three would be treated they ap- discussed, which were matters having brought agree- the case before an pear to be in accord that Kahaner’s judge April, able for which he wanted $35,- payment proposal him of for a to $35,000; just thereafter, past Feb- Erdman at was submitted that 000 ruary 14th, 16th, meeting.” about the 15th or Erd- taking given delivery $5,000 to his additional after charge, first the date of during course, exceptions, counsel, subse- was “that Erdman, which, of meeting, summations, course to “the 10th of their referred quent as 13th or 12th various matters February yes, stressed about the — n important I February.” believed were cross-examination and to which Under re- refer, you counsel, and, said course, Moore not will Kahaner’s meeting Erd- bear at which these peatedly matters in mind.” that the money Feb- onwas for first asked man The other attack concerns way, 10th day ruary either 10 or “a judge’s partici statement four that the n or11th.” was importance of this pants differing although meeting, concededly a vaca- onwas Kahaner that matters, as to “appear some ac to be in February 2 tion in the Caribbean pay cord proposal that for a Kahaner’s meeting Feb- 13; was hence, if the $35,000 ment to him of was submitted not ruary could or meeting.” Erdman at that not This was n called shortly Erd- it as Erdman before correct. participants The four took counsel Kahaner’s claimed. man $35,000 accord payment pro that a judge’s failure exception proper posed, and Erdman and Moore were tes- jury’s Moore’s attention call accord that Erdman had characterized timоny date. as proposal coming as from Kahaner being payment and as for a him. But Although bet have been it would only Deutsch testified “Dr. Erdman so, we do had done ter if the thought told Mr. Moore that he he charge could modify his refusal find something him, do it that would cost charge itself prejudicial. The have been $35,000. doing And he said call accurate; fixed the had my cousin, reason “past week second from Kahaner as gotten n he had involved.” Cohen said on February.” Moreover, himself Moore direct examination “At Dr. time first described had examination on direct $35,000 Erdman told him [Moore] being the middle meeting “About it”; n would take care of under cross- during February”, his cross-exam examination he elaborated that he be counsel ination, Kahaner’s even $35,000 lieved at the time that the gotten thoroughly committed him had going lawyer to a for his fee. February date 10 or as the Analyzing meeting, vantage date Moore altered the record from our February delivery money from point, significant. quite the variance can be deemed previous Throughout testified the trial no February day, 20—a date consistent save Erdman and Moore witness testified fixing telephone sought payment with Erdman’s that Kahaner ever any payment made; return. after call at a date Kahaner’s corrobora- placed meet also tion proposal Deutsch ing Cohen Erdman’s mention of a Kahaner February payment, the week of even from co- important, point conspirators Cohen, as to the date such More as Deutsch and *19 by developed important, counsel be had Kahaner’s would thus and their been fail- vigor to recount even with such skill and ure this more so. on summation We deeply indication, impressed however, any find must havе been no it significance jury’s impression that on mind'—an such attributed the to the- by ought judge’s slip anyone at the the to have been reinforced trial. No saying, summary exception counsel; judge’s in of Ka was taken defense been, judge defense, shortly “that it the would thereafter haner’s doubtless given e., a after his talk he have corrective instruction with as he Williams] [i. matter, holiday and on another where a did not return to did no actual left for February This absence error had occurred. of ex- the United States until 14th.” important, merely may judge ception is not issue was of the from This sort the compliance emphasized standpoint had in mind with F.R. have when he in the
479
necessity,
gen-
rest we must
and the
be
SO
content with
Crim.Proc.
some
avoiding
observations,
eral
rests,
perti-
re
which the Rule
which are also
judge’s
grounds
particular
nent to the
trials on
to the
not called
criticisms about to
and,
attention,
measure,
find
discussed
reason
but for another
some
judge’s
those
equally
pertinent
If the
been.
here.
at
inadvertent error
attract
did not
quite impracticable
It is
capable
any
tention of
alert and
judge,
a
summarizing
trial
a
case to
a
defendants,
representing
counsel
these
jury,
develop
piece
each
of evidence
single
it is fanciful
think that
this
offered
support
indictment,
of an
each
sixty
charge
more than
sentence
item
rebuttal,
offered
oppos
and each
printed pages
impressed
as
so
sought
inference
to be
An
drawn.
to have influenced their decision—and
appellate
reviewing
court
such
sum
judge’s ad
despite
have done
this
mary
only
not
must consider
it as a
by repe
monition,
emphatic
more
place
setting
whole but must
it in the
charge,
“if
tition
his additional
jury’s hearing
crеated
the evi
with
reference
does not accord
me
dence and the summations of counsel.
disregard
your recollection, you
en
will
Many
appellants’
contentions on this
guided by
tirely what I have said and be
phase
Judge
of the case read as if
Wein
your
Ap
independent
own
recollection.”
feld alone had heard the
witnesses
pellants say
is a
instruction
the latter
summations,
jury receiving
with the
jur
which
mere formal incantation with
nothing
charge. Although
but
possibly comply
in a trial
ors cannot
hypothesis
such
summary
here
length.
might
judge
be if the
So it
adequately conveyed
would not have
invective de
had delivered the kind of
side, nothing
case of either
follows
Quercia
States, 289
United
scribed
v.
that;
judge
thought
if
1321
53
77 L.Ed.
U.S.
S.Ct.
solely dependent
summary,
on his
us,
(1933),
appellants
cite to
which
surely
quite
would
have made a
different
mistakenly
even if he had
stressed
True,
evidence,
one.
“The
if stated at
had corroborated
Deutsch and Cohen
all,
accurately,
should be stated
as well
important
Moore in this
Erdman and
party
that which
in favor
makes
of a
as
nothing
particular.
But where
against him;”
that which makes
Burke
occurred,
equal
an
de
it is at least
sort
Maxwell,
139, 153, quoted
v.
81 Pa.
reality
suppose
mis
that this
fiance of
approval
States,
in Starr v. United
reference,
attract
not
taken
614, 626,
U.S.
L.Ed.
counsel,
objection from attentive
(1894);
pressed
but
this were
jury’s
lingered
mind.
requiring
every
extent of
the inclusion of
many
(3) Appellants’
counterthrust,
other criticisms
judge
thrust
alleged inaccuracy
taking
in the sense
province
relate
would be
over the
of claimed
Judge
of misstatements11 but
witnesses and of counsel.
Wein
convey
full
their
pains
thrust of
failure to
feld was at
to make it clear he es
specifically
sayed
role,
shall deal
еvidence. We
such
remarks al
important;
ready
most
for the
quoted
two
Moreover,
show.12
al
point
relating
They
regard
necessary.”
their
11.
Quercia
it
Rayfiel’s testimony
being
supra,
to
misstatement,
fiel’s
it
direct
evenings.
Friday
Thursday
How-
claimed, Judge Rayfiel had
both
testified
ever,
of this time
a considerable fraction
on direct
on
cross-examination that
testimony
spent
listening
which
Keogh
transmitting
simply
requested.
episodes in this
it had
interval,
Three
request.
par-
friend’s
This is said to be
relating
sub-
ticularly
two
same
episode
serious in view of the
ject, are attacked.
newspaper
headlines discussed
Although
interpretation of
above.
(1) Alleged
interference
Judge Rayfiel’s
testimony16
direct
is de-
jury by
Friday
after-
newsmen. On
batable, looking only
type
the cold
brought
noon counsel for Justice
although
appellants do,
would read it as
Judge
that, as
attention
Weinfeld’s
it still could be considered inconsistent
informed, photographers
he had been
Keogh’s unqualified statement, “I
and television
men crowded
camera
leniency.”
didn’t ask him
еxtend
jurors
pictures
around
and took their
However, the matter does
seem to us
they
when
left
on
the courthouse late
significance
appellants’
to have the
Thursday night
Friday,
and for lunch on
it; evidently
attach
counsel
did not
it
newspapermen
and “some of the
significant
time,
them as
strike
at the
asking
running along
beside the
exception
no
since
although
was taken—and this
thought
questions;”
them
it was “the
colloquy
on the occasion of
duty
marshal’s
it
see to it that
doesn’t
newspaper
headlines should have occur.” Government counsel made a sim-
Judge
alerted counsel to
dif-
Weinfeld’s
report
expressed
ilar
similar con-
understanding
Judge Rayfiel’s
ferent
testimony.
judge
cern. The
shared the concern and
speak
stated he would
to the United
exceptions
The two
that were taken to
Marshal;
suggestion
States
then
summary
Rayfiel’s
testi-
ought
mistrial,
made that he
although Keogh’s
declare a
mony concern the failure
ei-
to mention
urge
counsel was to
Judge Rayfiel’s
ther
corroboration
ground
this as
additional
on the mo-
Keogh’s testimony
appointment
evening
a mistrial
tion for
made that
Judge’s
Erdman to come
cham-
giving
exception
judge’s
the “Allen
morning
made on the
of March
bers
30,
charge.” After a brief
interval
his statement that Justice
or
them,
recalled counsel and told
never communicated with him re-
apparently
complete satisfaction,
to their
gard
case
the Moore
save on those two
he had
talked with the Marshal and
occasions,
is claimed
to discredit
that such
been assured
incidents would
Moore
not be allowed to recur. There is no
allegedly
the remark
to
Keogh
suggestion
did.
phase.
restitution
We
bring
Appellants assert these facts
previous
our
to add' tо
dis-
no need
see
holding
case within
Remmer
beyond point-
of such omissions
cussion
227, 229,
again that,
jury’s
request,
at the
out
(1954),
450,
483
pur-
has no
of He noted that “This Court
directions
and
and
the instructions
trial,
pose
the
full
to
indeed
not
ask and
does
have
the
the court made
right
you
inquire
to
stand.
knowledge
parties.”
facts
as to how
But the
the
of
trial,
length
considering
But
the
case, particularly
these
the
of
as
the
of
Remmer
taken,
testimony
the
that was
spelled
Supreme
amount of
Court’s
are
in
out
the
377,
have been
subsequent
S.
the number of witnesses that
opinion,
76
your
heard,
(1956),
so
are
further
consideration
Ct.
L.Ed. 435
100
judge
fully
holding inappli
part
justified.”
is
The
said
different as to make its
considering
amplification that,
juror
in
the
received
In
cable.
Remmer a
reading of
time devoted to the
a
defendant which
bribe offer
the
“you
meals,
really
spent
judge,
reported
then
and to
have not
to
and
he had
the
F.B.I.;
eight
the more than
or nine hours
actual
the
been interviewed
I
consider that
two incidents
do not
combined effect of the
deliberations and
impaired
elapsed
per-
could
his freedom
a sufficiеnt
to have
to
well have
time
voting.
you
nothing
opportunity
in
a
not
mit
full and fair
Here there was
fleeting
only
remarks
the
the
discuss
dicate that
the
of
review
evidence but
amongst yourselves
newsmen,
they were, would and consider
the
whatever
frightened
juror.
phases
a
of the evidence.”
or overawed
various
Catalano, 231 F.2d
See United States v.
remarks
like
After these
other
of
light
(2
1956).
do not take
67
Cir.
We
tenor,
judge
that he
stated
wanted
ly
proper
such
con
interference with
you
read to
a
which
con-
“to
statement
is
trials;
report
of
if
men and
duct
camera
opinion
Supreme
Court
tained
a
police
prevent
ers will not
themselves to
fairly
known
bench
well
and bar
* *
annoyance
jurors, and
such
the mar
charge
He
the Allen
called
police
them effective
shals are unable
statement,
read
familiar
164
then
required.
ly,
will
sterner measures
be
154, 157,
41 L.Ed.
U.S.
However,
episode
we see
basis
(1896), remarked
it
setting
more
a verdict rendered
aside
adjourned
jury
its delibera-
best
alleged
day
than
after the last of the
a
morning,
tions until
and concluded that
especially when counsel
long
trial,
disturbances —
I
“It has been a
trial
apparently
parties
all
satisfied
say,
pre-
each
where I am satisfied
side
judge
the measures taken
judgment
finality
if it can be ob-
fers
put
in hand.
situation
on the basis of a conscientious re-
tained
juror’s
Ex-
of each
final vote.”
flection
charge."
(2)
“Allen
The
Late in the
ceptions
defense counsel were over-
evening
Friday,
foreman
June
denied;
for mistrial
and a motion
ruled
jury sent a note to
court
however,
judge
recalled the
impossible
saying
find it
to come to
“We
variety
ways,
again emphasized,
agreement.”
jury having
The
re-
any
juror
individual
still
“if
retains
court,
judge
turned to
addressed
view
differs from
a conscientious
referred
foreman’s note
them. He
*
* *
jurors,
you
other
are
that of
expressing a “desire to discontinue
judgment”;
“you
yield your
are
not to
your
He
“It
said
is desirable
efforts.”
yield
judgment
your
simply be-
not
can be reached
this be
verdict
if a
you may be outnumbered or out-
cause
viewpoint
from the
of the de-
done both
weighed,” etc.
Government”,
but that
fendants
Saturday morning,
Quite early on
true
if the verdict “reflects
this was
copy
judgment
requested
jur-
of the'indictment
of each
conscientious
relating
Kahaner.
two exhibits
no circumstance must
and under
judgment.”
inquiry,
yield
another
P.M. made
juror
his conscientious
At 12:30
leniency
not
show
note to
could be extended to
whether
although
counsel,
he had it marked as a
him.”
exhibit.
court
out, however, accepting appellants’
con-
relating
lunch
After
exhibit.
to a
P.M.,
reading
any impropriety
there was
clusion that
it asked for a
at 3:20
argu-
seeking
jury’s
testimony,
Judge Rayfiel’s
relat-
to settle the
exhibits
asking
sentencing
pleas
the ment
course
sensible
again.
present
hear it
bank-
The case does
the criminal
three defendants in
*24
charge
“dynamite”
to even
is
ruptcy case,
read
such evidence of
as
“Allen
as
Judge
night by your
sometimes
to exist when ver-
Honor.”
asserted
us last
immediately
request
dict
giving
after the
complied
follows almost
the last
Weinfeld
with
charge;
jury
by reading
the
Supreme
Allen
the
Court’s
from the
morning
again
opinion,
that
continued to deliberate all
added the caution
but
asking
only
afternoon,
well into
“your
that
the
twice
final vote must be
pertinent exhibits,
your individ-
returned in mid-
verdict
with
which accords
afternoon,
requesting highly
judgment,
upon
relevant
ual
the evidence
based
rereading
material and
Allen
the
of the
and the law.”
charge, and then dеliberated for another
This recital
the facts suffices
light
several
hours
all it had
dispose
almost without more to
heard and received.
by
ap
characterization, made
one of the
being
jury
pellants,
co
that “The
We are likewise unable to fol
being subjected,
argument
appellants’
giving
cir
low
erced
these
that the
cumstances,
separate
charge,
occasions
response
on two
of the
or at least the
charge.”
‘dynamite’
jury’s request
theOn
repetition,
to the
contrary,
Allen
for its
given
charge
at
to be
if the
is
unlawful “because the Court could not
all,
done help
jurors
not see how this could be
do
but know that the
still were
tendency
disagreement
more
minority
less
or
in
isted,”
with
to coercion
that
ex
emphasis
thereby making
on the need for conscientious
applicable the
way
agreement
States,
individual
than
rule of Burton v. United
say
283, 307-308,
243,
it.18 To
Weinfeld did
25
49
482
S.Ct.
L.Ed.
jury
“subjected”
(1905),
States,
the
charge
was twice
and Brasfield v. United
accurate;
scarcely
448,
sec
135,
272
is
U.S.
47 S.Ct.
485- fought appellate must no such court not Here court living perspective careful lest “the inquiry expressly told but trial lost the search for error in indeed purpose ask and it “no record,” right inquire to dead Glasser v. does have the not U.S., supra, say Allen 315 at 473 you S.Ct. To how stand.” (Mr. dissenting). charge, Justice Frankfurter speaks in terms given by number of we have elaims error to be consideration that needs larger thought right opin- dissenting juror to discuss in this “if much the due, ion and of the has been not misconduct number minority’s for conviction” duty the trial judge, able conscientious themselves “to ask reasonably they might doubt but rather to the acumen and as- whether *25 siduity judgment was of devoted counsel for de- of a the correctness raising points majority,” in can- fendants for our con- not concurred any sideration, desire, given judge reason and also our has own not be special poignancy jury’s because of is other this division of believe that case, ordinary simply these, even, not to consider sense. we than defies any event, would in but to the re- state fully of sults our consideration more Appellants’ final contention should, ordinarily appro- than we deem though hold that that even we should is priate. holdWe that the issue of de- no of matters here considered one guilt placed fendants’ was before reversal, must would alone for call jury in a manner that was fair and points separately view their not but applicable law; in accord with rules of peculiarly true combination. That our writ runs no further. respect there to a where trial judgment The is affirmed. of such real basis for the existence consequences reasonable doubt Rehearing On Petition for and for tragic. wrong But of a verdict are so Stay of Mandate errors, not at all case where though minor, were numerous. In the PER CURIAM. long period prior trial petitions rehearing point out charge, we have noted but item call one respects opinion two in which our of ing prose criticism—and that of the April 25, 1963, incomplete. judge; cutor and not we have of (p. 472) judge The discussion of found no period in the the ex- errors testimony by jury’s of clusion Justice deliberation and practice judges scarcely any excepted of not other these —and n —in charge. perfection Eastern District of New York as Absolute re- ceiving presentence long will he trials information when not be attained so beings Attorney them; was United States failed to human few trials conduct sustaining objections length difficulty mention of this can nearly question whether, addressed to him aft- been so Although free of error as this one. post, his retirement from that he had the closeness of factual issues er practice judges directly magnitude discussed this bears error District, questions required reversal, Eastern and to the command of Congress hearing judge, state court addressed to another that “On the * * * witness, appeal any case, called as a character whether the court spоken judge give judgment a federal he had ever shall after an examination sentencing concerning regard a man of the record without to errors represent, and the re- whom did or which do not affect defects the sub prove rights jection two parties,” offer stantial 28 U.S.C. great judges District consid- 2111, applies in the Southern causes as well § legal long “proper in- to receive ered In as small. a case and hard- so family concerning back- formation ground, SYSTEM, INC., WILLMARK SERVICE condition economic status and Appellant, private- persons about to be sentenced ly pre- and from than the sources other WIRTZ, Secretary Labor, Willard W. agen- governmental report sentence Department Labor, United States cies.” But we hold that the trial Appellee. excluding evi- warranted in such No. 17073. dence, the of which two latter items likely even more more remote and Appeals United States Court of open up As we Eighth collateral issues. Circuit. pointed out, May 16, Government Keogh’s impropriety claim Judge Rayfiel luncheon conference with (although, testimony, his own concerning no information of substance impart) Moore to act- unless motive, corrupt for a agreed charged Weinfeld that all counsel *26 jury Keogh guilty could not find un- they money less convinced
paid to him. The other item is that our discussion alleged interference with the (pp. 482, 483) newsmen omitted by Keogh’s
statement trial counsel that Friday evening, June after the
judge’s marshal, instructions to the dinner,
“when we went out to there were
cameramen there. I had to ask them to go away, they go away.” wouldn’t This way point
in no affects the there questioning
was no evidence of further
or other harassment of the after the Friday incident on noon. corrections, Save for peti- these rehearing, they tions for insofar as seek panel,
action are denied. Issu- stayed
ance of the mаndate is until the entry petitions of an order on the
rehearing in petitions banc. If such granted,
should be the mandate will be stayed
further determination; until final denied, should stayed it will be thirty days from the date of such
denial and thereafter if within that time certificate is received from the clerk Supreme Court of the United States filing petition of for certio- provided
rari etc. as 28(c) in Rule this Court. change ner by him would have tencing Erdman testified around established same Moore was and Schwach early amount in the March 7 would Eastern that, be accelerated assignments to Justice occur paid March that on March another District, appeared that Kahaner Kahaner March, $5,000 Keogh. 9, Moore, owing so that sen- and that schedule supplied and the advised judges Judge It is to a Ker- had well friend. He further following home and the cial Justice conceded cards, notes these as innocent indications of his request cometo situation after the first card costs exceptions his chambers 3 as to a given second, sentencing loan, renovating handing Erdman two agreed but as to being on his placed close that Erdman Keogh: his summer an estimate testimony, explained morning personal finan- date The testimony; morning. Moore Erdman’s 2. was Assistant United States This Attorney meet Kahaner until did not he Williams testified that a few testified Although Kahaner was in days 29. March eai'lier Kahaner had him informed February he office Erdman’s Moore, Dr. and Kerner would Schwach with a he was there Dr. expressed testified plead guilty and, when Williams Feldman, be examined D'r. who was to again disbelief, they “indicated to me there, Erdman, did not see Moore he guilty plead and that would Dr. out of Feld- never he was and that by Judge Rayfiel.” probably sentenced be presence, as Dr. Feldman also man’s acknowleged telling Williams of testifiеd. plea; prospective he said this in- from Dr. had come first learned formation Erdman that he also testified Becker plead guilty in the latter’s when he was office as clients’ intention his patient. courtroom outside the met them when accom- then Erdman was but said chambers of March Judge Rayfiel among Becker, man. panied another said Moore and things, in- other that he believed he Justice’s was lifelong you friend who “more information than troduced Moore as respect matter”; trouble, phases whether wondered certain was in Judge Rayfiel that, open court, on return to the Justice would ask “background pleas to see motion for leave to look at Moore’s withdraw the given guilty denied, Moore, can whether consideration Schwach telephone thereupon made and Kerner were sentenced him.” He for terms of Ray- Judge arranging years, years three to lunch with two and fifteen call fiel, months Judge asking although respectively. he denied bring along probation Rayfiel re- Beyond this assured core of fact as to point port on which on Moore—a transpired what between lunch corroborated, and Erdman’s account contradicted, sentencing March 29 and the on March lunch, by Judge Rayfiel. At great controversy. 30 lie areas of There Keogh brought up Moore case where- sharp is a conflict whether or not the Keogh’s Judge Rayfiel said, upon given by Keogh account to Erdman in- culpa- words, Moore the most “that prospective cluded sentences, Erd- ble, bank- in a the worst offender saying man and Moore that it had and ruptcy fraud, he had the like of which Keogh denying this, supported a denial before, not run into and that he could—(cid:127) by Judge Rayfiel’stеstimony that he had background anything whether else imparted Keogh. this information to him considered—he could not consider anything There is likewise conflict whether character,” very unsavory abut appointment for Erdman to see judges and also that two other federal Rayfiel was made every- him had alerted of rumors “that the afternoon of March as Erdman regard thing has been taken of” in care asserted, morning or on March Moore told sentence. Erdman was Judge Rayfiel as Justice testi- Keogh during of this conversation Moreover, Erdman, fied. and Becker as dis- 29. It is not of March the afternoon well, testified that Erdman’s inter- after Moore, puted informed that Erdman then Judge Rayfiel early view on March
Notes
notes returned for lack $1000 funds government testimony of witnesses good; to ask Erdman and to make testimony the contradiction their and already Erdman said had sent a check government by other witnesses.” Jaspan. Christ went “In on: convenient, despite overlap- my It some course of conversation with Dr. Erd- specific ping, man, to divide security attacks into he indicated that he had categories: (1) adequately $35,000 get three Failure asked me whether I could charge theory defense; any (2) mis- leads on assets Mr. Moore evidence; (3) bring him $15,000 statements fail- would additional of at- a firm As States that he had was held and he indicated 1957), (2 Strassman, torneys working Cir. additional obtain that F.2d July request Erd- $15,000.” such after the con an oral date of Under began: charge under clusion of the too late man a letter which wrote Christ grounded both F.R.Crim.Proc. 30—a rule “Sorry you in- to have caused danger on error inherent apparently convenience. Mr. Moore necessarily rapid an oral consideration of now unreason- his casе is feels that request possibly at such a time and plan apparently able not does impact charge separate undue de security pay I am his notes. single theory. voted ato fact or Still certainly $35,000.00 the first might pro “plain well invoke the error” appreciate se- it if further 52(b) vision of Rule such basic curity $15,000.00 could theory intend of defense as you Any information obtained. keep money, ed and did in no had regarding ap- this would be way put jury. been But that before the preciated.” theory all was not case. light Interpreting letter in the argued extensively opening been in the telephone Christ’s as Keogh, on behalf of the summation undisputed facts, call seems and other of Kahaner’s counsel also included which entirely clear, despite the Government’s allegedly support afforded Christ’s that, contrary, in- contention testimony and letter. More Erdman’s deed Erdman admitted cross-examina- charge jury, over the in a itself told tion, he “I am for the meant secured passage previously quoted, that the one figure significant $35,000” highly first —a thing agreed on which all counsel theory. on defendants’ When taxed could find this, Erdman said his statement guilty found unless it security $35,000 related to Manu- Ace money them; paid after all it facturing explanation Co.—an which was scarcely heard, needed to be Keogh’s attacked counsel in summa- charge explicitly told money tion, which the Government not at- does paid could not have been to Ka tempt brief, elucidate its kept haner and if Erdman had it. charge we do not understand. After the (2) Weinfeld described the concluded, had been Kahaner’s counsel— meeting plan $35,000 at which the admitting completely “I overlooked it put Moore, first Erdman before my request” charge “to —asked