United States v. Pleva
66 F.2d 529
2d Cir.
1933
Check Treatment

*1 Penn, Co., R. (C. 2);A. cf. Harris v. C. (C. 4). A. F.(2d) C. in includ judgment was erroneous file from the date of interest on the verdict the Feder death. Neither the Jones Act nor Employers’ (45 Liability §§ al Act USCA 51-59) awarding of interest be permits the ascertained. damages judicially fore the are Lynott Co., App. Lakes Transit v. Great Div. 195 N. Y. affirmed 234 N. Y., Y. 338 N. E. Murmann v. N. 447, 180 N. N. E. Co., H. & H. R. R. 258 N. Y. M., Chicago, St. & P. R. Bus P. Co. v. F.(2d) 9). A. by,

Judgment reversed, and cause remanded

for a now trial.

MANTON, Judge, Circuit dissents.

UNITED STATES et al. v. PLEVA

No. 454. Appeals, Circuit Court of Second Circuit. July 25, 1933. SWAN, Judge, dissenting. Circuit George Medalie, Atty., Z. of New City (J. Jr., York Lumbard, Edward Wil- Seymour Herlands,

liam B. M. Klein, Russell Dorr, Joseph H. G. Miller, Asst. S.U. Attys., all of New York City, counsel), for the United States. Slade, Slade & City, New York ap- pellant Pleva. Cohen, H. New Sanford York City, for appellant Schwartz . MANTON, CHASE, Before Judges. Judge. CHASE, Circuit were two of four inspec appointed by tors the board elections for *2 530 justify believing as- that the false Fourth the in district the election the Sixth record was the con- district made in furtherance of sembly the Southern district within spiracy The in- charged the in polling the indictment. act as such York to of New by by both gen- dictment attacked demurrers at the election district place of the above appellants ground no fed- 8, elect on the broad 1932, to November election held eral charged. gist eral the al- Senator, crime was electors, a States presidential United legations appellants conspired to as was that the Congress, well as Representatives and in falsely for They record the votes cast federal offi- both acted city and officers. state injure oppress cers and years and and so to unnamed ten inspectors Pleva for as before: legal and unknown in voting machine was this election dis- voters A for seven. Schwartz correctly counting reporting trict not and duties, as which part used, a of their and their votes cast. instruction, was to as given special they were back of the machine figures from the take the support in argument In the now made for can- east each of votes where number the demurrers, the ground the covered in United upon tally them appeared and enter didate 904, Mosley, 238 35 385, States U. S. Ct. upon votes so entered sheets. The number of is turned 1355, L. Ed. over anew. count, and that the official the sheets became recognized distinction there between the as the each candidate was credited to number rights rights of voters of candidates and the district. by him in election vote received presented holding is as a reason for (18 51), Criminal not Code USCA § § inspector and was was a Democratic Pleva applicable by re- alleged since, the facts inspectors. the board of chairman pealing comprehen- the other sections the inspector. Republican When Schwartz a passed 1870, sive laws originally election closed; they polls locked front were things Congress left such are shown as here it, machine; unlocked went.to the back of exclusively to be dealt with under laws of apron expose count as recorded on the state which the election is In view held. machine; read off numbers. and Mosley supra, it Case, of the decision in the eight moved to within six or machine had been unnecessary point seems to do more than out inspectors table where two other sat feet of a charges conspiracy that this indictment as tally to enter assistant an voters, injure oppress one to not candi- called off. The rear sheets the vote as for and that it is office, dates self-evident that voting not be seen from the machine could legal injured only a voter is unless he is not good room was table, light in the not and the permitted to vote, but have his vote counted reading permit off the enough to numbers. attempt distinguish east. The the Mos- this, flash-lights used at first To do were ley paper Case facts bal- only Pleva called off the num- and then one. lots east and were all uncounted while here what observed bers while Schwartz voting machine was used incor- repeat vote doing. request to At times a vote wholly rectly recorded unreal. The meth- being was made from table where was falsify the returns ods differed as used tallied, repeated it. In three and Schwartz provided voting means for made necessary, off instances the votes called totaled more but the offense each instance was the same. than number of votes which could the whole Gradwell, States v. In United office,and, U. S. have been east for the when this L. Ed. charged S. Ct. during tal- acts discovered, fact as it was primary elections; as federal offenses were at ly, adjustment was made. None of the allegations candidates, were they' not eighty-nine appeared totals on the injured voters, had been oppressed. voting called off machine were and entered on three of the Moreover, indictments were for correctly. tally eighteen Those for sheets alleged violations of section 37 of the Crim- raised; candidates were Democratic all those (18 88). In inal USCA United § Code States Republican sixteen candidates for were Bathgate, 246 U. S. raised, for two decreased. The vote cast only L. Ed. was one of the counts every other candidate was decreased. The Code, on section based Cr. but the con- tally sheets, incorrectly showing official spiracy was to bribe voters rather than to de- indicated, signed results above a§ prive personal right voters of to vote and county inspector, each were filed in their votes counted and returned as east. day following clerk’s officethe Pleva. expressly latter offense was This reaffirmed (18 to be covered section Cr. sought explain Code errors defense being 51), under which in the USCA § tabulation of vote as mistakes indicted. Chavez v. poor due light and confusion the room. were States ample 261 F. 174 was Bath- Notwithstanding that, A.) similar the evidence personal persons gathered number of around it in such no violation gate Case, in that way duly charged. authorized watchers could vote was a voter readily being tally check the made. The that the demurrer ground The further relevancy prevailing of the conditions while *3 specifically not injured were who were voters easy being the vote not to cast is discern allegation While is untenable. named apparently part since it had no' in could have in this voted qualified voters who legally the later incorrect tabulation of the result of oppressed injured and were election district voting, perceived but neither can be re counted having their votes not evidence, the admission of this if strict per of charged an invasion east turned as ly admitted, any it were in erroneously was covered voters, and so right of sonal respect harmful. The of evidence conditions retain, vi to Congress saw fit section prevailed tally which when the was made was public wrong. In is a of this section olation conspira properly admitted to show how the offense, of no mo therefore it is proving the cy was carried into effect. It is claimed among who those allege voters, which ment to repeater voting the evidence was admissi to have deprived voted, ap ble to show the fraudulent intent as cast. and returned counted their votes pellants in the conduct of the election and to meth in our objects attained of the to-be One tally characterize the erroneous as one inten any impossible for voting make it is to od of tionally taken in so furtherance of the con And, he voted. know how one the voter to but spiracy alleged. It was not inadmissible sim by numerous voting machine used when a ply because it the commission tended show numerous candidates vote for voters who of a New crime under state Greater law. every candidate, it are tallied some votes Poultry York v. Live Chamber Commerce know whether the impossible to is, course, (C. C. A.) 47 F.(2d) 156. United States any been correct particular has vote of voter conduct and what was done cast are not, all the votes ly tallied or unless polls just previous and during at the correctly accused be em tallied. Nor can an taking tally closely was so related to in his defense fact barrassed charged the offense that it was admissible identified name in the individual voter is part plan all common show that of a de known, failure to Even al indictment. if injure signed, oppress and carried out injured would not lege name of an voter alleged. tending voters as Proof to show the demurrable, though the make the indictment appellant’s prove intent was admissible to might government that event on mo be, in conspiracy, and this evidence went to required to disclosewhose votes were not tion, tally show that errors were not in correctly that, tallied. It is obvious if the precon were the result ones, nocent hut of a allege prove government had the names plan. v. ceived Cf. Workin United States were mis the individual voters whose votes 137; (C. A.) Unger, F. State v. 93 N. C. 260 erroneously tally taking from counted 270; 50, 107 A. Farmer Law, J. v. United voting machine, every this would in statute A.) 223 911; States C. United F. nulliiy applied way practical he a to such (C. A.) F.(2d) v. .43 States Shurtleff C. as this. such a an election While considera 947; Sprinkle, F.(2d) States v. decisive, any is not such tion nullification of 968; (C. A.) v. States Stem United C. law .is to avoided there are be com States, 762; F. Heike United doing not pelling so, reasons for and there are 1914C, Ed. Ann. Ct. 57 L. Cas. 33 S. none here. States, Pet. Wood v. United plea in bar of L. Ed. 987. Schwartz was based on the fact that he had been called as a wit exceptions sup- were taken to the Some grand jury ness and testified before the plemental charge of and to the re- the court found claim which the indictment. His comply requests with fusal certain immunity contrary Kap for that reason is exceptions charge, but are insubstan- (C. A.) F.(2d) lan United States tial. sustained. The claim and cannot be that he ease had been submitted to After to a plea was entitled continuance when his p. from jury, deliberated 5:30 merely frivolous. was overruled they o’clock, retired m. until about 11 when following During day trial, night. found them evidence was admit for the they exception agree, p. and at 5:30 m. came that, under to show ted while the unable reported. foreman being done, and so

voting was some con into court agreement persons gave room and fusion some voted then elderly once, that, tally might possible. juror, An No. 12. more than while the be my opinion I large open being voting machine, taken from the stated court: “From cystitis, symp- ence on two his asthma and conspiracy those any between do not see toms of complaining.” those which he was my opinion— between fellows; that is “I not able said: will people.” He evening jury At in- &:15that returned my stay I have trouble I am sick. long, reported to court “The foreman following then occurred: bladder.” The guilty charged the defendants finds you want a doetor? Do “The Court: the indictment with a recommendation mercy Upon request to the court.” coun- did and I sleep did No. 12: I “Juror appellant Pleva, sel for was there- not eat. re- polled, was ordered and the verdict sleep either. did No. 5: I “Juror attorney Immediately, corded. the same you want a doctor? Do “The Court: *4 to physical asked show have the record the night stay over got I to 12: If No. “Juror judge juror condition No. To the of 12. this your something but, certainly got to have I replied, by juror “The has been examined I do some- whether to Honor, I want know physicians. anything you Is there wish you, from taking am it wrong I or not. thing say?” to say you me. to whatever “Juror No. first doetor noth- 12: The said you. I cannot decide it for “The Court: ing the matter me. with telling your am Honor No. 12: I “Juror “The the other saw Court: Then doctor I truth. no use if the Cod’s There is honest you. die in the court. going she to “Juror No. 12: She said is may retire and I will You “The Court: tell fellow something to the court. other you get medical attention.” see that just nothing said matter with He me. discharge jury then to was A motion didn’t to ex- examined me. He said he come appellant by Schwartz and counsel for made said, got thing. amine He me for this ‘What By parties, a doe- consent of all was denied. you?’ said, ‘Nothing trouble He by government was called employed tor you.’ tonight. up matter with I to stick want juror jury No. 12 in the room. and examined could not.” I he was reported that afflicted with asthma He objec- entered The verdict was then over trouble, but was in condition and with bladder tion, leave to make further motions was jury. on the to serve Cross-ex- to continue discharged. jury ap- granted, Both and change opinion. to his amination failed upon pellants to set aside the verdict moved any to call doctor who was offered court then ground was not the unanimous ver- that it juror examine “for to presently available against of jury, dict that it was the evi- ascertaining physical con- purpose of his had dence, tampered that the first doetor and fitness to continue in the delibera- and dition by suggesting juror jury to No. 12 with the jury part.” which he is a of An- tion of right good he when a ver- that would be all called, and, making was after an other doetor ground was returned. The second is dict reported juror go- examination, “is clearly third need not be untenable, misery a of in for lot for he states to be seriously It was based what considered. operations several for his bladder he has had probably innocuous remark cas- made cystitis.” symptoms of The doetor and has ually by way conversation, gave no in- although juror reported that, had also of the doctor’s idea what would dication would asthma, that him chronic bother Indeed, good a be verdict. is no reason cystitis very think much, “but I will both- any. had But to believe that he we think it going he is er leave the court him because that, suggest well take this occasion go every hour bathroom.” room may necessary whenever it have a become already stated this caused the had doctor juror, doctor examine a he be cautioned juror pain. Upon being in- considerable presence any in the make comments juror did not formed that the have to be juror trial. relating to ease on courtroom, agreed this doctor with the oth- juror deliberate, ground presents ques er could that the continue to first a serious later, given enough right “I have stated him tion which strikes the root of the ato through by may the night.” jury. person lawfully to last No sedatives He trial appellant Schwartz, every juror jury asked counsel for a convicted actu you “Do deliberations, ally agrees his upon think that his ar- evidence and the gument with the other eleven room, person guilty. men in law of the ease If would influence on. physical guilty any have an his con- verdict returned for other “No, answered, may keep reason, dition?” perversion it is a constitutional him night any guaranty (Amendment awake at but won’t influ- have to a trial 6). juror may that this have here support We be of been submitted both in impeachment believing that verdict, mistaken we but ig we guilty, unnecessary cannot found it proved rely any por had not hut been given formal that, after he tion open nore them because what the fact occurred compels it was re court result verdict, and we assent to the before have reached. For the open court that he federal as to competency known in rule corded, he made physically respect as witnesses or agreed only he felt affiants in because unable thought longer the conduct position on which they served, maintain he see views of Mattox right; States, Ms assent to the his S.U. from securing freedom anoth 36 L. Ed. fellows he was McDonald v. Pless, thought night which he be er of confinement Ct. 59 L. Ed. yond judge Clark, The trial United States v. power endure. 289 U. S. provide medical at 53 S. Ct. did all within reason to 77 L. Ed. juror. probable It is tention for this Reversed. consequenc unduly with fear beset support if the dic es to his health he tried to Judge, opin- dissents with resistance, tates of his conscience further ion. opin in their and that the doctors *5 Judge (dissenting). would physical ions that condition not he Ms but, convinced, impaired; agree he was so I am portion unable to with that clearly not, was the coercion under he holds which the verdict potent finally agreed which he was as as it should have set aside. been When the any event, he polled, juror eould otherwise have been. In 12 declared that No. he plain agree made he did to the ver agreed it to the verdict. The court then di agree dict on the evidence and His the law. rected that the he verdict recorded. There longing ment, fog induced his for relief from upon appellant counsel Pleva asked to partly least, result ills real was but the physical record show the condition though coercion no juror even coercion was intend response No. sug 12. And to this overpowered simply ed. His mind juror gestion the made the remark which has well-being his his own concern for and never indicating agree construed been that his coercion, agree persuaded into merits to come ment was the result nis remark therefore, law, It verdict at ment. all, inquiry was not made in answer to an as to Compare and should have been set agreement aside. inquiry to the verdict. his Such Faber, People v. 199 N. Y. N. E. already ho answered the affirmative. State, 20 Ann. Rothbauer v. Cas. This never retracted his statements to Hun, 181; Wis. v. Hart, Weeks court. Ilis remark made in contra Stearns, (Mass.) 501; Lawrence v. 11 Pick. opinion, quoted doctor’s diction Scott, Scott 2 A. him, nothing Pa. was the matter with him. in fact his condition and whether What It noticed that we are deal should he prevent his was such as to deliberations ing with where a been a situation verdict has room, the trial court was better able regularly with noth returned recorded we, only than are who determine see to show that other at the time it was than my agreement opinion, jurors record. there is not printed In unanimous based upset ruling, judg on the evidence and the law. leave un We sufficient question may touched the what effect should of conviction be affirmed. See ment given offered, proof after a verdict re People 1, 29, 145 N. Y. Buchanan, N. E. corded, transpired during Buchanan, of what the delib re U. In jury. erations of the Affidavits 39 L. Ed. 884.