United States v. Perlstein

J., Salsburg, City, contention Paul M. N. is that the defendants knew of Atlantic appellant Benjamin Perlstein. M. for almost two months before Paul, City, J., pro se. “trial Harry N. and their at least a month of Atlantic counsel This clearly before trial. was sufficient C., Burns, Joseph Washington, D. W. pre time ordinary under circumstances to appellee. pare for fact the defend trial. The that MARIS, CLARK, Before JONES, continuously ants’ en counsel almost were Circuit Judges. gaged preparation in the of other trial and cases during period was a fact to MARIS, Judge. Circuit by considered the court in the exercise of containing an indictment two counts obviously its discretion was not neces but Benjamin Harry Perlstein and M. Paul sarily a deciding factor. Otherwise the charged jointly were and with Herbert R. Short trial of criminal would to in cases have Michael Aluise District Court definitely рostponed to suit the convenience for the Jersey District New con- attorneys for their when the demand spiracy to certain violate laws of Unit- disposal. services exceeds Expedition time at their ed charged States. The first count disposing criminal cases 15, 1937, 1940, April 16, from October is of the importance, not to the utmost influence, all conspired four defendants government but Post also the accused. impede intimidate and witnesses and to ob- ponements are to be favored unless not struct the administration of they necessary are to afford the accused the District Court for the District of New opportunity prepara reasonable Jersey grand jury and the thereof in viola- tion of We think defense. Code, tion of Section 135 of the Criminal presents such circumstances of un no 18 241. U.S.C.A. The second count § due haste as would make the refusal of 1, April 1937, April that from continuance an abuse of discretion and that 16, 1940, all conspired four defendants States, decisions such v. Cooke United possession unregistered their 517, 390, 767; 267 U.S. 45 S.Ct. 69 L.Ed. still, carry on the business of a distiller Carolina, 161, Franklin v. South 218 U.S. without having given bond and to make and 640, 980; Peck, Rogers S.Ct. 30 54 L.Ed. v. ferment mash fit for distillery distillation in 425, 87, 256; 199 U.S. 26 L.Ed. S.Ct. 50 duly authorized, in violation 314, Hooker v. Angeles, Los 188U.S. 23 S. laws, of the internal revenue 26 U.S.C.A. 395, 487, 471; Ct. 47 L.Ed. 63 L.R.A. 2810, Int.Rev.Code, 2814 and At 2819. §§ Schmidt, Louisville & R. Co. Nashville v. government’s the close of the case the 230, 620, 747, 177 U.S. 20 44 S.Ct. L.Ed. court directed on verdict second count Holly, 398, and Roller 176 U.S. v. 20 S.Ct. in favor of the defendant 410, 520, by defendants, 44 cited Paul. The found Short and Aluise inapplicable. are counts, guilty on both Perlstein and Paul guilty on first count and second relied Perlstein not witnesses, appeals the second count. continuance is twо These by testimony alleged Perlstein whose to be Paul. greatest importance defense, to Paul’s had Contimtance May 27, jurisdiction 1940, left the were in allege California would return New 29, refusing grant September Jersey erred in a continu until Although 1940. 16, April indictment was filed ance. of the absent witnesses is al 6, 1940, May leged counsel retained to be vital 1940. Paul to Paul’s he defense made request consulted his subpoena and Perlstein earlier counsel at an for the issuance of a California, run 876, Rev.Stats., received date. Counsel notice of authorized Sec. 3, They appeared in court U.S.C.A. 1940. 28 654. June significant informed that on case would be 4th and neither nor his co-de June tried Camden fendants mentioned these witnesses in their June any application testimony, that the 10th. Their nor was effort case be made at a later datе denied. cross-examination to elicit tried On information June application renewed for a about them. Under the 10th circumstances de continuance, grounds. assigning two The scribed we do find court abused given refusing had not been first was suf its discretion in the continuance. 487, time to confer each other and Isaacs v. 159 ficient United U.S. 51, prepare for The answer trial. to this S.Ct. 40 L.Ed. 229. changed Con later gress or modified acts of the Indictment to Quash Motions federal the decisions in- which returned grand jury Reid, 361, courts. United v. 53 U.S. States term of empanelled for the dictment 1023; 361, How. 13 L.Ed. States commenced Court the District Murdock, 284 U.S. S.Ct. December, Tuesday in first Camden At common 1376. L.Ed. law in New 82 A.L.R. January ended term 1939. The which were Jersey indictments began at the court term of a new when record defective for errors extrinsic Code, as amend- Trenton. Seс. 96 Judicial quash. might be motion to attacked order dated ed, By an 176. 28 U.S.C.A. § 621; Nicholls, con-, State State v. Judge N.J.L. 11, 1940, a District January Rickey, procedure The same ex- N.J.L. after the office grand tinned the many federal has been followed in Accordingly courts.2 complete it to to enable piration of the term that motions cannot said it was This action business. all unfinished ques improper raise the quash were to 284 authority of Sec. pursuant to the taken its grand jury having the exceeded tion of amended, Code, 28 U.S. as of the Judicial powers in this case. set 421, part of which is the material C.A. jury found grand footnote.1 The out in a however, is, objec another There the defendants the quash the motions to which were appear in the 16, facts April These 1940. present case. The court was made in the jury grand when the The date record. upon the motions to determine by called defend- began investigation as to these its factual matters it in the record not before Before appear the does not record. ants had to enter into a trial of facts which and defendants, with leave began the Lhe trial guilt upon the or innocence of bearing no pleas court, of not withdrew their Something more than bare the accused. orally quash moved to the indict- each by required jus allegation the accused jury grand ground that the ment on the itself to be tify permitting a court thus alleged power They to find it. was without from merits the accusation. diverted The existence of valid indictment was defective because quash grounds for jury’s grand inves- did not show that clearly must be ing the indictment shown. begun tigation before the extension was Accordingly held cоmmon it is at law prove they offered to that it was in fact as well in the federal Jersey New courts grand of the begun after the extension verified, quash that motion to must be service in direct violation jury’s term record, by by either facts of admissions Congress. government Act of The by government, or the alleged irregularities. affidavits as to objections the defendants’ ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌‌‌‌​‌​​‌‌‌‌​​​​‌​​‌‌​‌​‌​‌​‌‌‌‌‍contended that Simon, 113 State v. by quash, not be raised motions to could 867; 521, A. United States 174 v. N.J.L. that, they be, if could the motions even 14,858; Coolidge, Fed. Cas. No. Colbeck have been verified. court States, Cir., 401; 10 F.2d v. United 7 quash motions the re- denied the States, Cir., 156; Kastel United 23 2 F.2d leave to offer quests for sub- D.C., Reilly, 866. United States 30 F.2d allegations motions. stantiate the wholly The defendants in assigned denial of these motions is comply requisite. They with this failed error. orally judge motions to made their and practiсe suggested criminal cases could call the dis attorney testify Court the District of New as to the date the District trict when begun by grand determined investigation law of New was Jersey absolutely existed Jersey pas jury. as it at time of the no There basis laid Judiciary support allegation x\ct in sage of the unless in of the that the inves- “ * * * 1 grand 284. A See. district end of the term for which the request may, upon attorney originally summoned, o£ the district excuse grand jury any grand jury or on his own mo member of the sum- tion, by any grand jury impanel person order authorize mon and another in his ” * * * during place. to sit to continue term suc ceeding request States, tiie term at which Cir., such 2 Mamaux v. United 6 264 solely investigations made, 816; May States, finish Cir., be F. gun grand 495; jury, States, but not finished such 236 F. Chadwick v. United grand jury permitted Cir., 225; no shall be but 144 F. United States v. n sit during eighteen Antz, 419; C.C., in all more than 16 F. United States v. good Provided, That, Rosenthal, C.C., 862; mоnths: cause 121 F. United may, shown, C.C., Heinze, time after States v. 177 F. 770. (Section statute tigation begun the extension Criminal Code after subject cross- ) offer to U.S.C.A. and is to the grand jury’s term. The [18 § 88] punishment. However, though same attorney indicated even examine district class, to en- merely desired offenses right of the same expedition. join gage upon fishing There the them in one indictment support statute, pro- presented further restricted were to the court facts, right admis- vides exists if motions neither record by “may properly joined”. propriety government sions nor affidavits joinder Be- of persons acquainted facts. such must under with the be determined principles mo- “the settled of criminal law.” of this lack of verification cause tions to Pointer v. quash properly denied. U.S. 410, 411, 14 S.Ct. ac- 38 L.Ed. We Election Counts cordingly turn to the consideration of those Before trial the defendants filed a motion principles. compel upon to elect Chitty’s Law, Ed., Criminal Vol. proceed, which count it would alleging “ * * (Sec. Secs. 249) it is said improperly joined in the counts were the indictment. This objection, it is even either de- refused. motion was murrer, judgment, arrest of government’s opening After the separate offences of the same nature are motion, the which defendants renewed * joined against the same defendant *. gov- again was refused. At the close of the only join- And the objecting mode of ato issue was ernment’s case the same indirect- der felony, of such in offences case of to dismiss and direct ly raised motions to application to quash the court to the in- verdicts for four defendants. The all plea, dictment compel before or to thе judge granted the motion to direct a ver- prosecutor elect, charge to which he will the second count as to the defend- dict on try subsequent stage proceed- in a of the ant Paul and refused the other motions. ings. only But the court will listen to such compel of the trial to The refusal request, they charges a are when see that the government upon the to elect count the distinct, actually may the confound proceed assigned which it would prisoner, or distract the attention of the error. jury.” (Sec. felony, “In 253) cases of government The relies Sec. more than one distinct offence or criminal Rev.Stats., 18 U.S.C.A. for the time, regularly transaction at one join right to the offenses in one indictment. charged prisoner be the in one indict- provides: section “When there are That ment; because, if that should be shown to charges against any person several same act or for the plea, they the court quash before will the transaction, or for two or more indictment lest it should confound the together, acts or transactions or connected defence, prisoner prejudice his in or him for two or more acts or transactions challenge jury; might in his to the for he offenses, same the class crimes juryman’s object to a trying one of the may joined, properly be instead of hav- charges, though might he have no reason so may several indictments the whole be ing joined other; in the if to do do not dis- counts; separate in indictment in afterwards, they may compel cover it until and if two or more indictments are found prosecutor charge the elect on which he to cases, may such thе court order them to proceed. will But this is matter be consolidated.” prudence and discretion which it rests with government The claims that the acts or For, judges point the exercise. alleged transactions in the two counts were law, objection there is no to the insertion together connected and that were of of several de- distinct felonies of the same the same class might crimes or offenses.and times, gree, though committed at different properly joined. is clear that in the same of- indictment same counts did two offenses “of fender; and it is no either of de- class,” for in each instance what same was judgment.” or arrest of murrer charged not the substantive offense but conspiracy gist objection to commit it. joinder, if it any conspiracy charge objective prohibited statute, not the is that mul conspiracy agree- tiplicity charges but the of in tends “to unlawful confound defense, prejudice ment or combination. Each of the con- accused or to him spiracies charged challenges, being indictment as to his in the matter of criminal, habitually was made an offense the same federal held out to conspiracy to the to obstruct evidence as the attention distraction ** clear- Unit- the due administration of ly McElroy otherwise, 31, 32, question ex- as to the 76, 80, irrelevant States, S.Ct. U.S. ed operate istence of earlier conspiracy In Pointer v. 41 L.Ed. might Accordingly, an the stills. the court supra, the defendant im- joinder was with the well have held that the counts containing four day, point has proper That that reason. same persons of two murder force, however, of now lost kind its view same рlace with the the same instrument. evidently fact that not con- held Supreme Court they acquitted by the fused since Perlstein of proved the circumstances under operate conspiracy while con- stills not error it was government conspiracy ob- victing of the later compel government him refuse court to justice. struct the due it intended to administration upon which count to elect prosecute. App.D.C. States, 66 In McNeil however, urged, It is that the evidence joinder of a 698, the 85 F.2d conspiracy the stills persons con- charging three count respect was not relevant with con- larceny with spiracy grand to commit spiracy administration to obstruct persons with three charging same count justice, of which latter three to cause one conspiracy to defendants were convictеd. After careful was not of embezzlement commit crime record satisfied examination we are page (85 said F.2d improper. bearing upon that this evidence did charges are it is true the 703) “While : sought issue. The latter offenses, directly they are connect- separate show that the activities of Perlstein and evi- it is obvious together, ed Paul were directed toward protecting Short count was sustain one offered dence inducing prosecution by and Aluise and relevant to sustain properly admissible parlies identify involved not to them Lotsch, 2 In United States the other.” enterprise. or connect them with the still In appraising this evidence it was 35, Cir., 102 F.2d the indictment helpful receipt upon sep- three in three counts the jury something to know of de- the of commissions from bor- arate occasions enterprisе tails of the still itself the and of of defendant while an officer rowers relationship not of Short and Aluise nothing bank. The court found a national but of the other witnesses to It follows it. joinder, being (102 improper the test in the did its in that the court not abuse discretion page 36) can “if the be F.2d at defendant conspiracy requiring charging the count charges fairly at once.” tried all the justice to due of obstruct the administration the con- charging tried the count be appears upon It thus that action spiracy operate the stills. misjoinder alleged of counts in an an in dictment is a matter of discretion with the Rulings on Evidence opinion if court and that in the of the court investigation federal of the will not confused 1, beg'an involved November crimes here multiplicity charges of and the defendant the earliest date That wаs in his defense embarrassed will not be any be said that there were which could may refuse to direct an election court way involving proceedings under the ad is, point as this court government. It justice the federal in courts. ministration Silverman, 3 in States ed out contend that there could defendants Cir., F.2d choice between the a conspiracy a to obstruct the have been economy single issues any justice at time administration hand, closely related, and are the consequently evi that date and that before safeguarding of the defendant place which took events dence as to possibility prejudice arising from the They prior to date was inadmissible. multiple charges, on the other hand. v. United U. rely Pettibone The indictment in the case before rul S. S.Ct. alleges conspiracy conspiracy us thаt the to ob obstruct ing that there can justice justice the due administration of was not struct the due administration 15, 1937, days pro formed itntil October two unless there in federal courts conspiracy after ceased in federal courts at pending stills ceedings their Consequently alleged conspiracy. seizure. Petti time of the the bone conspiracies occupied pe labor two distinct arose out of a States v. United overlap. alleged riods of which did time was in dispute. It May, mining company in the decision Pettibone States brought equity suit a union and was support proposition. intended to such a many defendants named individuals Dilks, government H. wit John Court for the the United States Circuit ness, permitted testify objec was over procured District of and a decree Idaho tion two conversations between himself enjoining the interfer- defendants from Graham, place and A. which took John company its ing employees intimidating with the presence Short and defendants employees. prospective pres Aluise. Perlstein Paul were alleged July, further while was that in ent either time. Counsel for Perlstein injunction the defend- full force requested and Paul in en- (not ants named the indictment those struct the that as to testi them the joined conspired equity suit) to com- mony had no request This was re force. pel employees company aban- fused. Dilks testified that said Graham don work to intimidate officers to him “These fellows [Short Aluise] agents company discharging of the into Johnson, were sent out Nuck L. [Enoch employees. all non-union The indictment county political treasurer leader] concluded that the were defendants there- plаce put pot to said, aget [still]”, that he obstructing fore due adminis- Nucky “How do we sent know that tration the United States Cir- Anybody them out? could out and come cuit Court the District of Idaho. There tell us Nuck sent them out. going I am no averments were defendants it”; find out more about that Short and injunction purpose knew of the or that the “Well, you Aluise answered don’t think we conspiracy injunc- was to violate tfie would be out unless he here sent.” proceedings or to' interfere with Dilks testified that visited Enoch then in the United States Circuit Court. The office, spoke L. to Johnson’s Johnson’s Supreme held that Court the indictment secretary, report and returned to fatally defective because the failure the answer he Graham received from her. allege knowledge part testimony that on this His he said “I occasion defendants. The effect of the court’s hold- Nucky told them that wanted ing was concerted actions of the these fellows taken care of. Their attor resulting in violation of the in- Perlstein, ney, just had been in there.” junction could not be a criminal was introduced over the ob jus- to obstruct the due administration of Paul, jection Perlstein and who now tice unless the reason of assign trial the court’s action as error. knowledge of their the existence of the in- Evidence, Wigmore Edition, In 1766, Third position were in junction decree a to realize theory author states: the “The of acts, lawful, their otherwise that would Hearsay that, rule is the when a human ut- to obstruct due tend administration offered terance is as evidence of the truth justice. knowledge of Without that there it, of fact asserted the credit of the have been no could criminal intent. The assertor becomes the basis of our infer- involves case the administration ence, therefore and assertion can be presents and criminal therefore of a upon stand, when made received totally Every person different situation. subject to the test of cross-examination. criminal a offense is therefore, who commits bound to If, judicial an extra utterance prosecu- offered, that if his crime is detected know not as assertion to evidence If, therefore, asserted, will follow. tion others he but and matter without reference upon agree action calculated to en- asserted, to the truth the matter of prevent, escape able him prosecution evade or Hearsay apply. such rule does not The utter- overt and acts merely follow anсe then obnoxious to that thereby make themselves of evidently a crim- It was rule.” this distinction conspiracy inal to obstruct ad- trial which the had in mind when he justice, though of even ministration Dilks’ either admitted account of the conversa- of their or because machinations for some The issue tions. then is not whether the prosecution reason delayed testimony hearsay but whether it was actually results. never If we were to hold Viewed light relevant case. this put premium upon we would a may otherwise testimony it well be that Dilks’ prevent- a the success ing such and relevant their by to Short Aluise because prosecution until after the acquiescence statute of in the statements made has run. Dilks, limitations We do not or at deny think least failure to

2S3 admission. Motions juror. them, as an probative value withdra/wal has however, Pаul, dilem- and As to Perlstcin government’s At the close of the admis- as an presented for if offered isma di the defendant for a case moved be- testimony received cannot sion the and for rected verdict on the second count as- present when cause were not juror withdrawal of on the prove if offered made and sertion was seriously the trial both counts clearly it would the statements the truth of court prejudiced rights. The trial facts hearsay, since the assertor second verdict directed a for Paul cross-examination. available was not count and denied the motion for a mistrial. testimony of this prejudicial character At the of the entire the defend close A infer- is clear. natural as to Perlstein mistrial. ant Paul renewed his motion for a was that from it draw ence for the In this This was likewise dеnied. motion pro- participated actively Perlstein curement of error. we think the court committed stills install the leave being Paul with ac- city property. Although Perlstein co-conspiralors operation damag- quitted upon count the the second stills. not a scintilla There was first ing effect of connecting evidence Paul with this con govern- out. The wiped count was spiracy. The trial court not have could Perl- theory all times ment’s was that at indict known from an examination Aluise actually represented stein Short prosecution, ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌‌‌‌​‌​​‌‌‌‌​​​​‌​​‌‌​‌​‌​‌​‌‌‌‌‍ment that this however, was so. Myers and Gra- his solicitation proceedings be familiar with the purpose rep- was for the ham as clients jury, fore grand statements the latter in such fashion as to resenting witnesses, with the all the the provable exhibits and possible prosecu- рrevent identification and facts of its case each tion of and Aluise. Much color was Short defendants, must have known that Paul theory by testimony that given this absolutely no connection with the con had October, 1937, Perlstein was early as act-- spiracy prosecu the stills. The ing on behalf Short and obtain Aluise must also have known it was county illegal privileges political from the necessary neither nor fair that Paul be leader. Indeed, with the others on count. tried if clearly indictment had set forth the written A statement Aluise was had facts and omitted Paul co-con as a agents by government December secured spirator quite likely in the second count and was received evidence over applied would have objection by both defendants. state McElroy doctrine ment contained reference to Perlstein com U.S. 17 S.Ct. highly prejudicial which was to him. The pelled the to elect the count colloquy between court counsel which proposed prosecute which it place the absence dis took granted a severance. Because of mis trial court’s intention was closes that leading of the indictment character evidentiary value of the state limit the government failure of the counsel by as admission to Aluise latter ment frankly any to admit his lack evidence fails to disclose that he so record but instructed picture the first against Paul clear government jury. The ar presented at the situation close of the of the are foreclosed that gues case. The government’s extent objection appeal raising the be from prejudice to which resulted from the exception. no Inasmuch they took cause be joint trial cannot now determined but that stated would in he in many obvious rulings became jury in accordance with defend struct the evidence. ruling which requests there was ants’ exception. failure take they could Throughout the course of the trial statement error. restrict counsel, objection, over took opportunity to every introduce the that because of the admis- available conclude We pro of Enoch L. into the Diiks and the failure name sion Johnson in ceedings. This readied a climax a series Aluise statements the convic- restrict to tion up asked the defendant Paul questions Perlstein must reversed and a of questions These cross-examination.3 to him. granted as new stop you order Bob and Mike in tell other them Did not tliese wit- “Q. talking against you those whom not have testified here about nesses who identifying photographs, higher-ups? identify knew to be rec- upon any attorneys, were matter in not based personal tragedy whose obviously to leave ord and intended considering, are now been con- have impression that the de- victed they, as the in- comity political it, puts fendant linked to the dictment did: leader in vast criminal scheme. some “ * * * corruptly endeavor to in- Berger v. United 295 U.S. * * * fluence, impede intimidate and Supreme 55 Court S.Ct. by corrupt promises, witnesses offers of in- new trial based awarded á ducement, means, and and would attorney its conclusion that the prosecuting counsel, and did advise suggest and “overstepped in that case the bounds of that * * * they testify witnesses that false- propriety char- and fairness * * * ly before Jury Grand with rela- acterize the conduct of such an officer tion to the facts of the matter under in- prosecution of a criminal offense.” quiry as aforesaid and would ad- and did applies equal What was there said * * * vise suggest and witnesses force to case before us. * * * identify should not We conclude the court erred fail- defendants Herbert R. Short and Michael ing juror to withdraw a toas Paul and that * * * Aluise before Jury Grand as the be, therefore, reversed, his conviction must persons who possession had in their granted new trial as to him. * * * custody and under their control judgments of the District Court are up still set in the building known as the reversed and new trials are ordered. Garbage Disposal Plant at Absecon Boule- vard and North Tennessee Avenue in At- City, aforesaid, lantic Jersey, New CLARK, Judge (dissenting). Circuit * * * falsely deny before Grand 1 criminal the second This is * * * Jury that defendants Herbert on this еxperience court that short writer’s R. Short and Michael Aluise had con- force of his words to the illustrates * * * nection with still. gives He him Association. American Bar “ * ** them repeating corruptly would and did in- the satisfaction self obstruct, fluence, impede would realize that economic and endeavor to “He here: influence, impede the deans re which both of have obstruct the due ad- laws to ferred, inevitably operate * * * finally so that ministration of point reached temptation and that of the United States for the District Court * * * Jersey over into sin. As of New hinder- legal sardine boils District extra * ** said, very lawyers ascertaining ing Jury ‘There one of our Grand between steal state presenting to the choice true facts and a false little doubt as the of matter under ” * * * relation to the starving.’ American Bar As facts with ing Reports inquiry in 687.2 the manner more sociation and Mike because one word I Enoch told these witnesses this is ever heard. you obvious answer is no. the record dation, for this unfair me, shall which, foundation has been laid tions “Mr. Kisselman: “The Court: Mr. “Q. “The Court: “Mr. get anticipate but, wanted not Mr. like this the same L. type Kisselman I permit in the Johnson, think, Paul, concerning course, in front of cross-examination question. protect thing. I was not this is : If record to you answer will be remember will question. or that of the Burns, The proper your Enoch wanted to time when perhaps It the reason point matter, is jury, Honor them. identify agreeable there is not you thought lay an Johnson? nothing where a and the a foun- attempt is protect I please, and I ques- most this, Bob ‘no,’ you thing? you before the Section of can Bar Association and Admissions to the Bar of the Ameri let 106 F.2d 750. further bail, $ ^[*] asked for it. it, test “The Court: Mr. “The “Q. “Mr. “Mr. Speech you and shall ask had is did And Mr. Burns not Kisselman the exact go Burns: this Court: unless credibility í*C ^[*] been you into entitled States case, that.” protecting Nucky you lay Sfc ^[*] I Well, thing : If you Overcrowding shall day say to do. Johnson ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌‌‌‌​‌​​‌‌‌‌​​​​‌​​‌‌​‌​‌​‌​‌‌‌‌‍the witness. Silverman, your I which October when Legal ^[*] some foundation am refuse to. allow purpose Honor someone that your you put up is go Education ^[*] S|: going the Bar not on into it please, Honor Cir., this }j« ^[*] long have pronounced him to be. We Paragraph have described in forth and fully set hereof, judge period modern passed (as a since purpose preventing for the * possible * * is pointed it out) ‘when evi- has obtaining from Jury Grand man; are now punish an innocent might be which dence an * * * it problem whether straggling with the against the returned ” guilty.’ longer possible punish for Aluise R. and Michael Short Herbert Ed., 21, р. Evidence, Wigmore 3d as laws internal revenue violation Indictment, and 375. Paragraphs 5 aforesaid.” 6, Appendix Appellants’ 9, 10. brief, pp. way into found its theory same has The shall States.4 I the statutes of the United those, words, who other both In background of history and not discuss the by the oaths entrance to and solemn already I have salutary enactment as profes- learned and canons sion honorable time a unani- speaking done come, so— uphold justice, be- bound to are mous court.5 opinion stigmatized by jury’s fore us now errors, majority four find two they supplement betrayed justice. defendant, they deem, each this the same indictment crime shocking must, substantially prejudicial. of the Two charges defrauding the defendants from the errors claimed arise use I revenue still. county of the treasurer of the home namе good no for including can see reason county references, one Both of the still. last It is true indictment. attorney acting and one a witness prosecution they that the crime with whose arq improper. witness general, What the corruptly endeavored to interfere is hearsay plain said is in violation However, distilling. crime of illicit a more incompetent. therefore rule and What perception acute practitioners of the tactics of some attorney acting general said irrelevant. might of criminal law It does follow that the suggested the wisdom trying the offenses question prejudicial are and so also quite separately. Furthermore, it was a demanding the of a reversal. correction gesture. futile jury acquitted de- fendant, Perlstein, and the directed Appellants’ gaudy draws a rather counsel acquittal other, Paul. picture of the aforesaid official. He would on evidence. different Wigmore takes the latest edition of his monumental treatise trial. mendable. But the exaltation of technical- ception stantial sentimentality of the law that must cease. Reverence for the Constitu- solid claims sentiment is ities raised on behalf of tion is one the two defendants’ but for the ly appears accused, seems ful learned cause of the too to be a majority every criminal—that fairness of who require little account states the matter to be man thing, my opinion criminal thrown to of law and sort constant “Secondly, may reprehensible who express the correction of a judges injured victim, merely and a guilt. They be assumed offender that the procedure committed errors justiсe. is, accused neglect weight that such not for because the record respect the modern order. criminal opinion thing. eloquently complaisant person the scales Professor the mere innocent, feel that for sub- All the to feeling There plain- as to cases com- con- jury piti- new is a more have us bined What he brief and what the jury trial. lieved of extra-curricular elemental things. There row strictly commercial ness, is, ours). Professor ly science.” 9 merce, facts, ranging § “Applying “But the 2570, time, ; it is Courts in our his $ regard profitable, if less from limited. To industry, believe a varied p. would work Wigmore: strictly limited jury’s permissible judicial affairs, the evidence are scope Wigmore on adversary system 544, are found ^[*] experience in human throughout for the general have us activities § array of history ^[*] no evidence 2580, p. element this doctrine quote again everyday noticing from county principle ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌‌‌‌​‌​​‌‌‌‌​​​​‌​​‌‌​‌​‌​‌​‌‌‌‌‍especial- ethical, Evidence, ato believe the data of gentleman might offered at ^[*] unquestionable quite and natural of notorious- few matters 571 life.” have be- ventures. from of these different $ is nar- nature, 3d (italics notice com- com- time Ed., be, ican Bar Association can Bar ^[3] Canons Association, of Professional Canon Reports 1105, Ethics, 15, 62 Ameri- Amer- 1110. 106 F.2d 5 4 Townsend 28 U.S.G.A. § 273. v. United 391. States, 3 Cir., 286 general tendency Relevancy hopes One on a of such it ex- evidence that part county of officials to assist crim cluded. It objectionable, because as “un it appreciable value, inals is neither as “elemental” nor has no probative but as, instance, danger questionable” for because it has too The much. natural pipe ousness оf filled smoking tendency a barn inevitable a of the tribunal —wheth- Furthermore, er nothing judge with straw.6 jury give excessive —is by anybody of weight said about the residence to the vicious record of crime thus knowledge exhibited, jury the of members whose and either bear to allow it to too argued for. County strongly present Atlantic matters is on charge, to take besmirching proof The the the actual evidence justifying it as a condemnation county hearsay. irrespective also treasurer is As guilt charge.” it 1 Wigmore 194, emanated from a witness Evidence, Ed., p. on 3d § objected general cannot was to. Its tenor- (italics ours). 646 that the latter wanted boot two relevancy The un- corresponding legging co-conspirators given the facilities prejudice both what the emanate from city dump garbage for as a site defendant has done and not from whom he prosecution enterprise. saving tax has been any sugges- with. Nor can I find companion case that the evil testimony improperly The admitted plays prejudicial either a part. relevant or amounts, then, to this. The defendant Inasmuch jury perceive as would Perlstein occasion on visited has first, they by could not be affected the sec- county office of treasurer of the ond. practices which he law. defendant “if want to has been asked he did not judge The learned trial permit did not protect” question the same official. The county the reference tions treasurer’s rela- improper by was held the learned trial beyond to go defendant Paul judge and was not answered. question. intimation in prejudice county were entitled to infer him, therefore, any, if is on a diffеrent regarded the treasurer aforesaid defraud- and less footing. extreme There has been revenue with a tolerant rather ing much by written on misconduct prosecut- eye jaundiced perhaps than a and even attorney ing ground for reversal. The part such an attitude deserved the determining factors strength seem to be the aiding accolade abetting an indictment and or weakness of the case the de- 10 distilling. illicit fendant and the measures taken trial court to avert the harmful effect.11 showing Is association with and the majority Here agree that the case is friendliness for wicked such man “evi- strong. gave no instruction ** prejudice to create dence calculated point. Counsel could not been have iSie exciting inflaming the minds at the trial is on as much concerned as he 7 passions jury.” The writer thinks appeal request no such may

it is and for this reason. be that already reprimand- As court had made. has Latin maxim it: “Consortio general attorney it would ed the assistant mequoque malorum malum facit”.8 Our surely been acceded to. has than further gone law tion done. considera- attempt “speculate similar of what the defendant himself A has European systems In the is manifest the second error” Early English practice, particular majority for the of misconduct were admissible. With reversal as acts found As is the to Perlstein. common almost cases, softening later English the criminal law an admis- the inevitable courts reverse themselves and ex- one defendant was offered. The The sion cluded evidence for what it to Professor was asked limit him. Wigmore Auxiliary protection has termed “reasons is when such it most time fоr Policy”.9 effective, says: may e., He “It just i. before the retires. almost be appears request of that character said that it is of this No because indubitable me also 75 N.W. Rep. 922. 7 6 Lillibridge “The 553. C.J.S., wicked”, company 288, 41 L.R.A. Criminal McCann, Black of wicked Law Law, 117 Mich. men makes Dictionary. 72 Am.St. 600, p. 84, S.E. 496. 9 1 ^[10] 55 S.Ct. Berger State v. 194. Wigmore Hayes, Evidence, Cir., States, W.Va. 258 F. 1314; 3d 295 U.S. Ed., Fitter §§

287 you solely are to on the issue as requests.12 go So seven among Perlsteiu’s first rely mem whether or on his not he willing judge trial lias to interfering is a for count with the administra- reliance No such ory long of a trial. duty justice, you tion of are not to allow the duty. It is rather his part of setting up with sharpened the evidence relation to the memories those whose still, pre operation of is the second that saying that In injury done them. count, his you regard judges influence possibility of what ignore fer liability cоunt, re is the ob- get the first that effort studied have called “a 13 reach struction of count. You must into the record.” error versible your guilt of Harry verdict as to Paul’s for a new for trial second perpetrating ly justice sole- obstruction of an misconcep me to involve seems to him into evidence which ties joinder of governing of the rule count, out, leaving except pur- for the writer, speaking then criminal causes. pose explanation, all taking care court, rule unanimous discusses for a operation relates of the still.” he has lawyer-defendant case Charge Court, appel- Appendix authority already to.14 referred On brief, pp. lants’ 545. reject appel majority that decision clear, therefore, jury It seems Having argument for a severance. lants’ done thoroughly understood its funсtion and that least, me, this, it is difficult correspondingly opinion its defend- subsequent accession to to follow their demand for a mistrial. The guilt ant Paul’s arises from confusion best statement ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌‌‌‌​‌​​‌‌‌‌​​​​‌​​‌‌​‌​‌​‌​‌‌‌‌‍but from conviction. joinder found of reason I have Min appears from rule in the note quoted in the nesota Law Review op Silver-man repeat part quota of that I inion.15 here: statutory “Apart from limita tion tions, it is submitted that the funda proceeds objection joinder from mental likely to jury the notion that a use evi support charge to adduced dence in of another convict accused dependently adequately proved.” nor [106 NEW YORK OLSEN v. CENTRAL NO. 18. and Information F.2d Indictment 753.] Statutory HAZEL THE S. Counts— Joinder Joinder Indictment, 22 Separate Offenses Same 298. No. (note). Law Review 113 Minnesota Appeals, Circuit. Circuit Court of Second joinder That the in the сase at bar June 1941. utterly confusing would to be be impossible. seem so the usual case different are left to the counts because in- judge fact is often not potential prejudice by minimize clined to Here, however, charge. learned permit pass did distilling upon the count illicit and took clarify pains to their minds great about the of connection between two of- lack “ * * * fenses. He said: You must engaged whether he was not consider conspiracy to the still. I a* withdrawn part you. responsibility, my as I have told That case, as he concerned you. So far approv Appendix appellants’ brief, p. also Tiiis note was cited 584. Sufficiency opinion Appeal of the Second in a recent Cir of Ob- al cuit, Error — Smith, jections, F.2d 38 Texas Law Review 222 United States ¡(lióte). Silverman, PauL The defendant United States above cited.

Case Details

Case Name: United States v. Perlstein

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 24, 1941

Citation: 120 F.2d 276

Docket Number: 7507, 7527

Court Abbreviation: 3rd Cir.