United States v. Rubenstein

laches, equities Strong, court and the created of solely In favor doctrine applying lapse defense of on the laches said: rested time, adhere our former decision. elements, inex- consists of two “Laches petition preju- The rehearing for is denied. delay instituting cusable suit resulting dice to the defendant MURRAH, eq- Judge, upon the dissents. delay. depends Its existence case, upon the uities of the lapse of time.” Owen, N.J.Eq. Ketcham A. perform- specific action was an The land. ance of a for the sale of contract signed only by was vendor. contract misrepresentation The asserted vendor inadequacy of consideration and advised perform contract. UNITED v. RUBENSTEIN. STATES she perform- The vendor made no tender No. 358. repudiation givеn ance. The notice Appeals, Circuit. Second Circuit Court bring in April, purchaser The did August, until 1893. The court action 25, 1945. Aug. inadequacy of con- held that because 13, 1945. Writ of Certiorari Denied Nov. time, pur- lapse sideration and See 66 S.Ct. 168. chaser was barred laches. Lott, P. Marsh v. Cal. specific perform- action an option purchas- ance of The contract. tender, er made a refused. He bring lapse did his action until a tender, years than after the three property in the interim the had in- per approximately creased in value cent. said: court

ing junction of limitations is never a tigation press der it for a ^[255] “It is equity, statute 267, 4 period inequitable to proceeding. undoubtedly circumstances with the mere mere give P. less delay limitation than that of Lux v. relief true that when an enter into the inves- which, ‍​‌​​‌‌‌​‌‌‌​‌​‌‌‌‌​‌​​‌‌​​‌​‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‍P. 674. There lapse reason commence sought.” applies Haggin, taken the statute time, dismiss- the suit 69 Cal. must con- ren- suit ex- Latta, N.J.Eq. 589, Schaffer specific which was an action for A.

performance, after the purchaser had been years for three default vendor iff brought damages. action for The bill performance specific for one until filed damage year suit defaulting under After the con instituted. tract, purchaser occupy continued to pay premises rent. The court held

the that, circumstances, purchas under his er contract and abandoned by laches. barred Since, case, in the instant change occurred conditions between the tender

the commencement the action which

D16

FRANK, Judge, dissenting. Circuit Delaney, Joseph Leary City of New York Goldstone, (John City, L. of New York counsel), appellant. McLaughlin F. X. Martin John J. McGohey, Atty., both of New York U. S. City, appellee. HAND, N. Before L. AUGUSTUS FRANK, HAND, Judges. Circuit HAND, Judge. L. appeals judgment from Rubenstein charging under indictment conviction into conspiracy bring him representations, an alien country false facts and concealment of material objections He raises four false documents. appeal: prosecution (1) That prove party permitted to that he after a fraudulent divorce alien entry; completed by her crime (2) court refused to declare one, Sandler, the alien valid had been ly prosecution (3) that married: ask allowed stand whether he had been disbarred or bar; suspended (4) in charge, dictment and the did evidence prove, any crime. Thе did jury might that a was such found following facts. A Czechoslovakian, Spitz, named Alice entered temporary States on a visa November sojourn which allowed her a only May months: until six 1939. She got an extension for another six months spring but wished'to remain in longer; July year con he had known been sworn to Muller Muller, she was one, wife of whose suited years. Thai at least fifteen connection, might how she Sandler for family toas affi signed the was false and Muller that she suggested him She do so. af davit blank. also submitted American, stay He just get to an married been sworn fidavit entry purporting country, and she known by one, Isaac, he stating that had induced get a divorce. Thereafter Muller knew twenty years. for Sandler Sandler proposal; and up Sandler to one this take person. bore three documеnts All who him to Spitz, him asked to introduced date, and on De August have like to marry “because I would her letter Rubenstein a cember wrote my parents here and from Czechoslovakia in Montreal Consul at it, American only way thought, was I could do fictitious, stating which he letter marry, enclosed a to him if he and then asked present employment earnings and it, yes.” do he told would said She and Upon Spitz papers received Sandler. him, these but him not wish live with she did to Montreal on December a visa in that give she him Sandler’s would $200. by means which the United entered she account of conversation was substan- States. tially him, the same: she she If married country, could remain after in this “and January 27, pro- On Rubenstein divorce, six months time a will be there Haimowitz, sign one af- cured to false a and she said thеre will me, for something be upon fidavit of service Sandler of sum- a give that a will sum of and she $200 complaint and in an di- mons action of couple me.” The were in to married brought Spitz against vorce him the Newark, 29, 1939, by Jersey, July New adultery. Haimowitz never judge; they separated, always a at once served Sandler and an- Sandler never apart, marriage was never lived and the S, April swered. Rubenstein also on The consummated. evidence does show procured sign Haimowitz to a false affi- Spitz what means staying succeeded in davit, that Sandler not in army was at country in the after end but she Finally, the time. the cause came on when spring was here she still in 1940 and divorce, trial Haimo- as an undefended getting Rubenstein witz, consulted about a visa instigation, at Rubenstein’s swore for her as the wife of falsely Sandler. She before the official that he referee gave hifh home address in her own Man- had and a woman to- discovered Sandler hattan, Brooklyn; and Sandler’s in night gether at in a room circumstances she thereafter and Sandler an had inter- support that decree. On were sufficient to a view, him, interviews, at granted. this a divorce was they they him that that agreed told had complaint the ad Rubenstein’s the marriage only months, last was to six concerning mission ‍​‌​​‌‌‌​‌‌‌​‌​‌‌‌‌​‌​​‌‌​​‌​‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‍of all evidence be to after were divorced. independent divorce is that it was an objected paper Sandler signing a to crime, conspiracy having disconnected presented which Rubenstein at one him Spitz ended when under the im entered interviews, of these saying that that wаs migration right saying visa. He is that part bargain, upon but Ruben- entry; the crime ended with the it only stein’s assurance it that was a form- no means follows evidence that ality that place “the divorce would take was not relevant the crime. Be divorce that,” right after paper he consented. The Spitz fore she obtained fraudulent visa signed petition which he was a that there Rubenstein had told was visa, upon a grant form on which divorce; had said same Sandler specific details were unfilled. Sandler thing; Rubenstein had assured him all; never swore to it at the details it; would were there divorce almost at typed in he signed jurat spouses’ once. intent the time of The added. statements filled in probative were ceremony was of fraud particulars: (as number e.g. immigration false his оfficials we shall show address, was) prove worth it was relevant his net and his income. divorced, completed, later declared that were petition, The testimony confirm their asked that went Spitz his wife and she to what originally immigration agreed visa. had intended Rubenstein sent upon. agreed all petition to the We therefore Commissioner of Im- this addressed, relevant; sup- fact of the divorce to whom it was migration, indeed affidavit, apparent once becomes at purporting if to have con- ported we prosecution’s through. vided was on damaging to it went fraud sidef how been, court, had no divorce and there case it would have objection fraud, However, though Rubenstein’s actually followed. com- Sandler it, it is mitted .goes adultery, understand further: or cоndona- collusion per se was though divorce invalidates even a divorce whatever admissible, necessary Moreover, order defendant’s conduct. Ruben- prove Haimo- stein establish it to never addition intended that Sandler should witz’s be- more than go affidavits and through two his the form. We per- fore the were cannot hearing deep- referee at he understand how ly jured, stained suborned because he Rubenstein suborned Haimowitz true, perjury. swear to Were two affidavits and the hear- ing, damaging, put would have so that we are than if he through not sure the divorce proposed. that verdict stand. as he should We outstanding The say, not fact is need because we do think that that not the deeply divorce was too it interwoven was to admit evidence. conspiracy erroneous the with the not in- to already volve proof Sandler had he that never testified its the means it accomplished; with was served the com- summons and it and well is settled plaint; he April that law army the that on evidence which is relevant to proof the 5, 1941; he of the one never knew and that crime incompetent is not September, He because it divorce until 1941. had discloses the an- commission of other. Finally, also testified Rubenstein sug- that had after a sedulous examina- record, gested he “get girl to him that should a have been unable to go room”; any objection find tinguished to a that he and hotel had at the trial which dis- refused; and he had never that papers between the showing the divorce, found with any place woman at the men- and Haimowitz’s аffidavits and testimony. tioned in the divorce With this testimony perjury. as to his single The testimony impossible obj in the case it was ection was all were that “collateral”: prove to the enough fact of the divorce without that not call judge’s the to incidentally proving that exceedingly Haimowitz’s af- attention dis- refined testimony perjured; fidavits his and were tinction which brought is forward the for inevitably to first time appeal. that Rubenstein him- on and led this prosecution as self the author. at objection Rubenstein’s second service, complaint, had prove least the to rests the claim that the intent to reference, findings the order of the and divorce was irrelevant the and that mar final, interlocutory the and decrees: riage was valid. The statute condemns nothing short of would have these shown only representation, a false but a the parties really put that through had “willful a concealment of fact.” material they a collusive divorce the kind that 180a, 8 § the U.S.C.A.. Rubenstein knew that agreed upon. those documents parties proposed a divorce six within (especially on the examination recitals of months, and that was a fact most material the interlocutory decree) disclose Haimo- to the granting visa. The statute perjuries, witz’s coupled with the is not marriage, with concerned as testimony. Thus, earlier Haimowitz in- marriage; one, perhaps chief, reason crime; testimony as to no new troduced why it allows wife of citizen a to enter true, he inferences to did confirm the is because the responsible husband will be Sаndler, testimony drawn from support. spouses her time we are not aware that it but has ever entry of the wife’s intend that re that prosecu- that it for the been held is error sponsibility shall end as possible, soon as tion to facts pos- buttress its as as much have evaded the they statute suppressing It prove sible. had to a collusive divorce fact; material suppression is precise form which the collusion fraud, though even marriage valid. is control; took it could Rubenstein had But, aside, Spitz and that Sandler were be, any proof what chosen should never married at all. consent Mutual is relevant charge. to was relevant to necessary every contract; and matter parties what forms if the affidavits and ceremonies Besides even go competеnt, through contrary, indicating had not injured. Rubenstein No contract if fraud do not fact as Sandler; sent, practised may always proved. he was in New different Oil pro- Transport form of the divorce York Trust Co. v. Island & re Corporation, Sandler suggested 277; Theiss v. Son, Cir., to a “get go Hicks & that he girl should refused, Am.St. room,” (3) Weiss, 31 A. hotel he 166 Pa. served, nothing Bishop, Vt. Rep. 638; and knew Bruce v. was not Sandler Co., Publishing entry N. Y. until after the Graves v. Northern divorce evidence was App.Div. divorce of that decree. None N.Y.S.2d Marriage Contracts, character of note needed show the fictitious Williston § marriage exception marriage illegal plan rule: to conceal is no jest This is marriage at all. soon to be followed not a intention that it was purposes, elsewhere. Jersey well as divоrce. it suf- of New as For these law defendant, Terry, prove merely Girvan ficed McClurg N.J.Eq. first, joined 182 the Griffin, N.J.Eq. plan A. sham marriage quite mar- with his (semble). It true that a and divorce assistance, subsequent Spitz riage consummation were Miss and Sandler without divorced valid; agree long marriage to a spouses will be ceremony. representing marriage only the sake the outside world and Judge Hand suggests prosecutor put will understanding prove divorce,” “had to a collusive pur- to it soon as has served its end “precise therefore the form which col- really deceive, never have pose to took” unimportant, lusion that and They must agreed be all. to married at consequently testimony the additional —as it is relation as assent to into the enter to false affidavit and defеndant’s sub- understood, ordinarily ordi- it not perjury, effect, was, ornation of in etc.— pretence, or narily merely understood a as cumulative appreci- did cover, deceive to others. harm. I agree. able cannot No doubt prosecutor prove part to in impeach defendant’s plainly proper It was to a pre-arranged divorce relating to a mar- credibility on cross-examina Rubenstein’s riage unreality which defendant of did by he ever him whether asking not disclose to the it divorce But court. suspended. been disbarred such Buckner, thing is one show misconduct —con- States People Dorthy, stituting divorce court a fraud on 50 N.E. N.Y. perhaps disbarment) some (justifying sort York law —and of crime New under ‍​‌​​‌‌‌​‌‌‌​‌​‌‌‌‌​‌​​‌‌​​‌​‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‍mean not understand the We do quite proof to add of commis- another The crime was raised. point last ing of the sion distinct serious and far perjury. peradventure of beyond faintest proved crime added suborning That doubt; deliberate fraud it was a proof merely cumula- no means authorities, ex without immigration states, while, Judge So tive. that Hand con stop not palliation. We cuse “it settled which is well law evidence indictment; it advised the accused sider proof is relevant of one crime is the crime which he was adequately with incompetent because it discloses charged. another,” commission of that doctrine affirmed. Conviction reception of the addi- here warrant cannot evidence, especially tending tional FRANK, Judge (dissenting). perjury show the crime of subornation of proceedings. cоurse, proper the divorce See that it was to in agree, I Krulewitch, States v. tending the sham evidence to sho-w receive 80, 156 A.L.R. 337. marriage, that defendant of the nature arranged be that there should a originally sure, evidence additional To be divorce, obtaining he in a and that aided for its might properly have admitted prove evidence divorce; went to credibility, defendant’s bearing limited complicity plan in to violate a defendant’s stand; he witness but since took the marriage means of fake a statute purpose not offered for and— of material a fact. concealment limiting absent instruction —should proper agree Shepard accepted appeal. I cannot But v. United so States, additional S.Ct. receive L.Ed. true) (1) that de- showed evidence (if highly taken as this 196. As kind procuring animosity divorce used a likely jury’s against to arouse fendant perjury, (2) defendant, object specifically and suborned his failure affidavit false (as paragraph says, his distinguished opinion, from of the he “The admission objection any proved per- reception beyond crime was the faintest evidence * * request concerning divorce) or to adventure of Those two doubt instruction, form, limiting contain, error. did not remarks cure abbreviated I feel colleagues sure if either my “harmless er- Second Circuit doctrine ror,” judge, e., determining had been he sitting as the trial i. the test to be used would, without prompting from defendant’s whether harmless inadmissible counsel, have probable either excluded additional is not the its admission effect of on the the Court consid- given We whether evidence or instruction. ers (and the defendant held our own have often Rule notice of provides) that we so should take Judge very respect highest have the markedly reverse on account of a Hand. To with sit him is an inestimable serious error to which a defendant did privilege, constant source of education. object at the trial.1 Consequently, my own usually suspect they vary tentative opinions, markedly from Here have error. serious myself subject It his. on this one “harmless,” cannot I find be characterized as recurrently unregenerately the test at odds employed be that harmlessness short, Supreme accept him. this cannot Court and most my colleagues adopted view which five courts. The only remаining conceivable basis, therefore, enthusiastically and which he endorsed: has this reversing we, court, believe, judgment sitting reviewing must on a application tacit ‘bit reading unique of the interpretation phrase guilty, defendant is then we must hold that error” “harmless unfortunately has error, evidence, admitting even if become current super- Circuit. A may seriously prejudiced ficial reading Judge opinion HAND’S defendant, against regarded is to be appear make it that he does em- times heretofore I “harmless.”2 Several ploy the doctrine, “harmless error” since my opposition have stated reasons says that, he were true that the addition- say is shall here doctrine.3 What inadmissible, al evidence was “the evidence way partly by summary partly of would have been dаmaging so that we are way amplification previous of those not sure that stand,” verdict the should adds, “We comments. say, not need because we do not think that it was erroneous to possible admit the It is seldom with even moderate evidence” (going competence on in that same paragraph conjecture solely from assign reasons which, perusal for that conclusion printed a written or record noted, as above I think untenable). But whether guilty.4 or a defendant is As have, very paragraph the next he the judges appeal abandons of an court the suggestion that reversal .witnesses, they follow the heard or seen have incompetent: this evidence reasonably adequate no He way now judging says that, testimony any even if the whether additional the or— witnesses lied competent, was not because of “Rubenstein was not unconscious faulty bias or admission; injured” by memory its in the last and. with inadvertent in- —testified 1 See, e.g., Trypuc, 503; Andolschek, Cir., United States v. 2 2 142 United F.2d Cir., 900, 902; Hoffman, 136 F.2d States States v. United 2 F.2d 416. 137 Haug, 911, 914; v. 2 Wi 150 F.2d 3 See, e.g., Liss, Cir., United States v. 2 borg States, 632, v. 163 U.S. United 995, 1001, 1005; 137 F.2d Keller v. 289; 658, 1127, 1197, 16 S.Ct. 41 L.Ed. Brooklyn Corp., Cir., 510, Bus 2 Atkinson, United States v. 513, 514, 515. 157, 391, 160, L.Ed. S.Ct. The ascertainment of the true facts of 448, States, 272 U.S. v. United Brasfield case, circumstances, even in the best of is 135, conjecture New 71 L.Ed. 47 S.Ct. guess: but a Since that Johnson, U.S. process York C. R. Co. involves events which occurred in 73 L.Ed. Craw past, 49 S.Ct. rely the the fact-finder must on the States, U.S. ford v. persons. narratives of other That means 465, 15 53 L.Ed. Ann.Cas. “finding 29 S.Ct. of facts” rests on the States, Cir., Gorder v. United guess Van fact-finders’ as to whether and to 939, 942; Meadows v. United what extent those narratives are accurate. App.D.C. States, (or judge), attempting A to learn facts, past, seeks to reconstruct inapplicable seems to This rule great and thus acts an historian. A of the consists exclusion of the error where history-writing historian has called important evidence. States “conjectural Cf. science.” present alone,6 my reliable. colleagues Had accuracy.5 that account On trial, credibility concluded they might at rule is well settled items, that, pivotal testimony as to question exclusively a witnesses is worthy court, government’s witnesses was When, then, upper jury. an for the con- assurance, My employ the says colleagues of belief. emphatic with an air of trary Hand, assumption precisely because opinion, speaking Judge an high- prеsent were case, crime at the trial —which majority, “The says in this sustaining the of their lights the unwisdom peradven- beyond proved the faintest that, independ- ground conviction means, doubt,” actually what it ture aof jury’s verdict, ent de- find the tones, no magisterial for all its comes to fendant present “As than this: we were to, trial, we did not listen at unjustified use, case, in such a observe, the and cannot deter- witnesses assumption government’s evi- about However, credibility. mine their we shall distinguished ap- its dence must be assumption make not be —which propriate use In a in another context: government’s all correct in fact —that er- prejudicial case where no evidence was honestly witnesses testified with entire roneously received, asks and a accuracy, defend- upper court reverse his conviction witnesses, ant’s in so it contradicted' far as sole government’s witnesses, that of the is such that no reasonable could wholly Only by untrustworthy. making guilty, judges compelled him found assumption (and, accordingly, paying to resort to a sort of fiction:9 Since to the evidence offered heed were absent from the trial and since the defendant) we come conclusion credibility of the question witnesses ais guilt unquestionably that defendant’s jury, for the the judges, perforce, must unspoken assumption Were that clear.” assume it (whether to be true not it is Explicitly opinion, stated7 in such an true fact) that all testimony point- air of seeming indubitable about certainty honest, reliable, ing guilt given pronouncement guilt defendant’s credible witnesses and that all testi- disapрear, would weakness mony (a fiction, That assumption not. peculiar court’s harmless doctrine error unavoidable; if”) in such case “as exposed scrutiny.8 necessary; therefore therefore proper. Be noted, however, My colleagues’ For see: in such circum- rule is to stances, judges at least have before evidence, admitting overlook errors them, although printed form, in the identi- (without regard to jury’s verdict) the the cal evidence —neither more less— nor record, opinion, in de- their that shows presented which jury. had been But why is guilty. fendant But does the record necessary assumption (fiction) that is not Only assumption— so show? because of an therefore, think, improper, when and is which easily fictitious —that the may be prejudicial (as here) the cоntains record testimony of defendant’s witnesses is un- expression “Blowers of like Observation the of the witnesses’ follow demeanor ing grown up garden ju by in the is no means an infallible method of of de- risprudence specific termining accuracy property testimony. and are the the of their lawyer: But, perfect having prov of the en’; ‘We must no assume method as been de- * ** justly vised, doubt’; ‘we cannot such data are of considerable value. * * * phrases printed necessarily etc. Such The record such serve to ren omits glib degree der the difference between the real data. The liar probability cogency up print persuasively of and the of in far the in show drawn, inconspicuous possi ference honest, as as than of an cautious that witness. Usually they Perhaps, appeals this, ble. amount to if on that in we used records place talking pictures put obliga consisting of direct of assertion of motion believe, particular difficulty modifying trials, to could this factor this disregarded.” Wurzel, is afterwards largely Meth overcome. Thinking, ods of Juridical in Science of (constitutional) are There rea- Legal (1917) 286, Method 419-420. sons. separate gets is part It a fiction because it involves a hint of it in a tak One ing something regardless Judge opinion says: as true Hand’s of wheth where he not, fact, er jury in it is was such that true. “The evidence a following (Italics have found the facts.” added.) In doing, so the convert them- improperly judges For is- admitted. substituting whether, jury. making By into appeal sue is then selves a thus on jury, legally authorized assumption very on samе rec- ¡themselves I beyond power think exercise jury, a jury which was before ord reasonably legitimate their If, constitutional— against in found defendant. —their this, conclude judges ,scope. a case like Without statute or warrant in reach that con- guilty, they Constitution, defendant judges facts. find the which ignoring important matter by clusion procedure cannot believe that satis- such a jury presented requirement fies the a constitutional induced its may well verdict. jury The trial. has been con- circumstances, judges those decide judges, jury. victed a He defendant, jury’s against affirming a unconstitutionally deprived, has the jury on the verdict think, prizdlege jitry a trial by it, strikingly before different on instance, fully if, as as much in the ha first to trial reason, I said that record.10 For that compelled had been go before judges case “inde- deciding such a juryless court. pendent jury’s verdict.” sure, lawyers some To maintain only through judge-made device can such a important The fact is that in this jury-system be “workable.” made error does mean “harmless” system work such makes the a device improperly admitted evidence was (Strangely, working it. those able — probability all it made no dif- that in lawyers judicial who endorse this circum rule, jury; were that ference to ground Constitution on vention unobjectionable.11 I would rule find The are, practicality general, those who here is even if that evidence was such freely agencies criticize administrative may well jury’s have affected the lawyers cry “usurpers”; as those verdict, yet ground it is reversal indignantly agency out were any such my colleagues bеlieve the defendant f rely justify, itsel The rule Circuit thus boils dozun to statutory any evading requirement.) If fury, Ms: on the certain basis judges happen regard “impractical” evidence, brought has guilt, verdict of obligation constitutional de give a then, quite evidence (i.e., different dif- trial, not, by fendant a should judges prejudicial delete ferent indirection, They Constitution. amend the evidence) judges may render their own frankly position state should their in independent despite verdict guilt, bring vite citizens to our about constitu neither saw nor heard fact tional amendment the manner prescribed zvitnesses on whose testimony they rest by the Constitution.12 their verdict. important assumption The differentiate the exclusive be credi bility specific against telling provisions tween of evidence constitutional deliberately the de needlessly employ vague fendant has and those which here been un phrases justifiably process.” such as extended. “due lat ter, (such jury- thought, In all unlike the former fields fictions must be cautiously employed. They provision), justify compel trial are “useful —indeed lies,” although developing judicial which, interpreta liberal statements con- trary See, incapable differentiation, tion. to truth or as to this of verifica- United tion, immensely Co., Statesv. nevertheless Carolene Products are conven- 304 U. 152, necessary. 144, ient S. often 58 But while a S.Ct. ‍​‌​​‌‌‌​‌‌‌​‌​‌‌‌‌​‌​​‌‌​​‌​‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‍82 L.Ed. fic- may context, Pierre, Cir., note such States 2 in v. St. value one may 837, 840, “Extrapo- it 132 F.2d be harmful in another. 847. jury-trial provision always tricky lation”, liarly pecu- business, pre- does elasticity applied construction; clude in so when all to fictions. see Peterson, parte Holmes, Legal Papers Ex Cf. Collected 49ff; (1920) surely 40 S.Ct. 64 L.Ed. 919. Hammond-Knowlton Unit But States, Cir., 192, 199, which, ed 2 does not authorize a construction effect, Shipyards, Hoey, Cir., in eliminates the function Inc. v. of a jury’s guilt except prelim- of verdict as a F.2d 525. inary by 11 True, appellate judges limited, verdict even with rule thus judges significantly appeal conjecturing based different as to jury. by jury. from that considered whether the evidence affected severely guessing area of re stricted. sure, say against can unquestionably him. To be one has defects. A trial seriously the best, trial, pay does not too especially as now it take At such a less, man, may possibility e., game that one or if were a or conducted—i. unjustly imprisoned, considering be imperfect, all-too- sporting event—is an war, that, fact recent millions have human, ascertaining true instrument for just begun reported Age Atomic facts of a case.13 As died Borchard any of years ago current discus- minute in destruction several and as end Campbell planet’s (perhaps all Yet press inhabitants. sion in the of the recent because, us, occasionally growing dramatically am old case reminds man, yet fully despite my years, I have not it is a innocent discovered an that, trial, America’s matured) sent to to me has been convicted and seems if part meaningful and jail put government. No war was to death development any signifi- can have been un- mankind’s has one doubt that there eternity, background (no against knows how cance discovered instances one many) dignity Un- of each individual man is convictions the innocent. then not, fortunately, empty phrase. we tragedies some of that are not an If it is then kind I, one, judges, part arrangement bound to occur. do not care of a human called accept responsibility any proceed great government, to carriage such mis- with should which, justice reasonable we whether a man determine caution is to precautions, forcibly deprived liberty. have been avoided. be of his could juries, Recognizing fallability we judicial opinion- The conventions of should, think, vigilant prevent writing uncolloquial vocabulary, the —the person through jailing of an innocent phrases carrying use of with them an air appeal jury prejudices. erroneous finality, parade precedents, this, sеriously where case dam- display seemingly rigorous logic be erroneously has aging mitted!, ad- with “therefores” and decked “must-be- not assume we should give impression certainty trues” — necessarily report- government’s witnesses (which hypnotizes often opinion- accurately, the facts order ed should writer) concealing the uncertainties in new trial. process. herent in the judging On close examination, legal concepts our often re observe In fairness to the must flamingos necks of the principle in Alice of harmless error which working semble. my colleagues employed, they I think Wonderland failed to remain suf exceptions: (1) ficiently rigid import- to.be make these effectively used Where as mal excluded16; croquet-players.15 material evidence has bеen In a ant lets case like this, has, judge complicated judicial pecu- all our where trial apparatus (2) way, displayed! liarly outrageous prose- yields “a judgment, but a human not at all correct, (3) zeal” where affecting sure another human imaginative, life cutor’s has being. deprived basic constitutional or we are at all comprehend statutory privilege (e. g., right we will what to be judgment him, counsel18). (4) will mean to There advised is a and what a exception horror it will be if wrongly fourth has at least once decide image 13 See, e.g., Morgan, Review, of Edmund Wilson Book used in his criti- poets. cism of the verse of certain Harv.L.Rev. modern effect usually proceeding is not See footnote 2. a trial “a discovery proc Marzano, of truth United States v. ratiоnal game Hoffman, “a cf. esses” but which the contest United States v. litigants lawyers.” ants are not the but the my colleagues See, That, also, Osborn, where The Mind of the Ju believe de- guilty, they 83, 86; Wig (Student’s 1937) 12, fendant ed. will ror not reverse unless 1845; judge’s (3d more, Seagle, extravagantly ed.) Evidence conduct is § un- fair, (1941) (as Liss, see Cir., For United States Quest Law to the v. 2 84ff 137 995; “judicial duel”). Barnett, Cir., Mitchell, F.2d Cf. In United States re 2 v. 2 Cir., 1005; Postgate, Cir., F.2d 137 F.2d 1006 and 2 Verdict 124 138 F.2d (1940); Frank, If Men 831. Twelve Were An 18 See, however, gels (1942) cases 80-97. where this court 14 Convicting guilty. Borchard, believed defendant The Innocent United States Mitchell, Cir., (1932). 2 v. 137 F.2d 1006 and 2 831; 15 borrowing adapting Cir., I am here ‍​‌​​‌‌‌​‌‌‌​‌​‌‌‌‌​‌​​‌‌​​‌​‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‍138 F.2d United States v. Gut Cir., terman, 2 147 F.2d 540. 924 utilized, where, e., of the They importance i. because sue. are of far less than sentence, severity excessive the court a fair they trial. will be And incurred reverses for an error which it oth- infrequently if, because of errors re- harmless19; think, usually erwise this, have held but versals in like pros- cases we educate exception, apparent is more prevent I ecutors and judges trial unfair- my colleagues person than real.20 It is ness to a true trial. of so Instead! generously them, will an error even if educating often note this court seems to me to it has not been in the lower court invite that, asserted such unfairness. For it announces court21; (subject or in this but ex- attorney to the if the district succeeds in ceptions referred) to which I persuading jury say “guilty”, will not claimed or usually hold error —whether court will (subject excep- ground unclaimed defendant—to above)- disregard tions I improprie- noted for reversal unless have serious doubts ties in a proрerly case which the admitted about guilt. defendant’s compatible evidence is guilt. That thereby improprieties have been en- disagree. repeat, It is there that I To I couraged suggested is frequency think the correct rule is this: We should with which this court has found it neces- committed, reverse where has been error sary to by invoking, condone them tacitly regardless guilt of our belief as or in openly, unique harmless-error rule. nocence, unless we conclude that in all probability the error no effect on Although usually I feel constrained to or, jury; differently, phrase that the ruling disagree concur with which record is such if there had been no previous if it has been endorsed in deci- error, reasonably jury sane could have court, majority sions that, of this I think acquitted, or that there is no reasonable respect of this Circuit “Second thinking error, was misled doctrine” of harmless by the error. Such a rule not demand may consequences, does be its appro- what perfection.22 Nor will work automatical priately continue I feel to dissent. less hes- ly; guesswork unavoidably so, limited some itant to do think that this doctrine involved,23 many but there are instances patently out of line with several re- say one can fairly high where with a Supreme de cent Court decisions25 has gree of error rejected assurance did not by every affect the therefore harml which the matter has been considered.26 ess.24 Liss, In Cir., United States 2 v. 137 F.2d say that, my It will not 995, 999, were the- this court said that there is a accepted, delay expense sis would en- disposition “modern to assume that an er- 19 States, Cir., Amendola 2 not, v. United 17 were bewildered as that were 529, prejudicial error, F.2d 530. then I think there is re Hoffman, gardless 20 upper Thus United States v. 2 of whether be court 416, court, Cir., noting 137 F.2d while lieves the defendant See cases cit severity (page 422), Liss, sentence ed in Cir., United States v. 2 137 F. (pages 420, 421) page said 2d evidence was at 1003 cf. note Keller v. Brooklyn Corporation, sufficient to “conclude defendant’s Cir., Bus 2 128 F. guilt.” Trypuc, page In United States v. 2 2d at 518. severity 900, 25 Cir., 902, States, 136 F.2d 287, Bruno v. United 308 U.S. prompted 294, 198, sentence the court to reverse for 60 S.Ct. 84 L.Ed. Mc 10, States, error 342, an “unclaimed” under our Rule Candless v. United 298 U.S. nothing 347, 348, indicates this factor in but 56 S.Ct. 80 L.Ed. regard prejudicial States, court duced the Weiler v. an error it would otherwise have 65 S.Ct. 548. 26 States, harmless. States, Cir.,

held Nash v. United Little v. United 10 73 Cir., 1006, 1008, 889; Lynch 2 F.2d 54 the Court criti F.2d 96 A.L.R. v. Oregon Co., Cir., cized the sentence affirmed. Lumber 9 108 F.2d 21 285, 286; Dodge 1. See footnote Fort Hotel Co. Bar Liss, Cir., telt, Cir., 253, 259; See States v. 119 F.2d Worcester page 8a; Torpedo Co., Cir., F.2d at and note Keller v. Pure Brooklyn Corporation, Bus Circuit, Farris v. Interstate pages 409, 412; Evansville Con Corporation footnote 11. See tainer McDonald, 6 problem 24 80, 85; A similar arises when Chang Ah Fook v. Unit judge’s charge clarity: States, to the lacks 805, 9 ed 810. jurors good If the chances are as

925 * * judgment for that pre substitute our ror has been harmless and, justice, juries system under our viously, cases, Supreme Court in two re- alone have been entrusted with that had, contrary. In Mc think, held sponsibility.” 342, States, 298 U.S. Candless v. United 347, 764, 766, 1205, the 56 80 S.Ct. L.Ed. “harmless error” stat- Court said change (28 391) ute “does not U.S.C.A. § rul- the well-settled that an erroneous rule rights which relates to the substantial ing party for reversal unless аffirmatively appears the whole rec from (citing prejudicial” ord that it was not Co., Rouge U.S. States v. River 269 United UNITED STATES v. MUTARIELLI. 144, 411, 421, Filli L.Ed. 46 S.Ct. 70 No. 8901. pon Co., 76, 250 v. Albion Vein U.S. Slate 82, 435, 63 Williams Appeals, 39 S.Ct. L.Ed. Court Circuit. Third Co., 19, v. Great Southern Lumber 26, 277 U.S. Argued 7, 1945. Nov. 417, 761). 48 L.Ed. In Bruno S.Ct. 27, States, 287, 293, 294, Decided Nov. 1945. 198, 200, Supreme S.Ct. 84 L.Ed. was intended Court said that this statute prevent with the “to matters concerned etiquette mere trials and with the for- procedure malities minutiae of touching the merits of a verdict.” It Hoffman, suggested Palmer v. 109, 116, 477, 482, 87 L.Ed. U.S. 63 S.Ct. 645, 144 took a the Court dif- A.L.R. position. ferent But there the mere- Court ly appellant complain could not held appeal refusing of an error in to allow inspect possession him to a document in the when, adversary of his appellant incorporated had not identified and record, upper document in the court pоssibly ascertain whether its court contents were material and therefore could whether error was harm- determine ful; in that limited context Court said party seeking reversal error has prejudice “the showing burden of re- 27 That, sulted.” ruling, that limited Supreme repudiate Court did not intend to States, ruling in Bruno v. United is made think, clear, subsequent- the fact that ly, States, in Weiler v. U.S. 548, 551, S.Ct. A.L.R. approval Court the Bruno case with cited said, “We to look authorized printed record, conflicting resolve conclusion, evidence, and reach error was harmless because we think defendant was That would be to Drake v. 82 L.Ed. 58 S.Ct. think Palmer v. Hoffman fol- Corporation, Cir., 119 appellate Finance General usual lowed the rule C.J.S., Appeal Er court consider in the cannot matters See, ror, g., § before it. Henneford v. e. Ry. Co., Northern Pac. U.S.

Case Details

Case Name: United States v. Rubenstein

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 25, 1945

Citation: 151 F.2d 915

Docket Number: 358

Court Abbreviation: 2d Cir.