The opinion of the court was delivered by: BARD
This case comes before the court on motions by defendants, Howard J. Levitt, individually and trading as Howard J. Levitt and Company, and Samuel Sussman, individually and as president of Pennsylvania Finance Company, Inc., for a new trial.
All defendants pleaded not guilty and were duly tried before the court and a jury. At the close of the testimony the court directed a verdict of not guilty on two counts of the indictment. The jury returned a verdict of guilty on the remaining twenty counts as to the defendants Samuel Sussman, Howard J. Levitt, Pennsylvania Finance Company, Inc., and the First National Finance Corporation. The other defendants were acquitted.
The present defendants filed motions for a new trial on November 4, 1940, assigning reasons in support thereof.
A very large number of general and specific reasons for a new trial have been presented. The testimony taken at the trial has not been transcribed and made available to the court for consideration. The charge to the jury has been transcribed.
The theory of the Government was that the defendants named in the indictment were all parties to a general scheme to defraud in the sale of securities of the Pennsylvania Finance Company, Inc. Sussman was president of the corporation. The Government offered evidence to show that Levitt, a security broker, would underwrite and distribute large blocks of stock of the Pennsylvania Finance Company, Inc.; that large blocks of stock of the company were obtained by Levitt from Sussman at less than their par value and that part of the purchase price was kicked back or rebated from Sussman to Levitt; that free common stock was given to Levitt; that Levitt sold the stock to the public and that as part of the scheme, moneys that were represented to be earnings on the shares were paid out of capital as dividends; and that false statements were sent through the mail concerning the company's financial standing.
The primary objection of the defendants is to the admission of the books of the Pennsylvania Finance Company, Inc. It is argued that they were not properly proven and that they were inadmissible against the defendants.
I am not persuaded by the argument of defense counsel that the books and records were not properly proven. The witness Ethel G. Elder identified certain entries in the books as having been made by her, some having been made by other employees under her supervision, and in other instances, identified the handwriting of certain employees. She not only worked for the Pennsylvania Finance Company up until the time it was placed in receivership, but also continued to work as an employee during the receivership, and positively identified these books, records and documents as being the books, records and documents of the Pennsylvania Finance Company.
Under these circumstances I am satisfied that the books and records were properly proven and properly admitted against Sussman and Levitt. United States v. Greene, D.C., 146 F. 793; Parker v. United States, 2 Cir., 203 F. 950; Livezey v. United States, 5 Cir., 279 F. 496, certiorari denied, 260 U.S 721, 43 S. Ct. 12, 67 L. Ed. 481. Furthermore, in the charge to the jury, the extent to which they were to be considered as evidence against the various defendants was specifically defined at their request. Concerning these definitions, I then stated and now consider that they were more than adequate to safeguard the defendants against misapplication of the evidence contained in the books. To have sustained further objections or accepted other suggestions concerning the books, would have excluded them from proper as well as improper consideration by the jury.
The defendants question the admissibility of the authenticated certificates. The enactment under which they were admitted, 28 U.S.C.A. § 661, authorizes admission of duly authenticated copies of records or other documents of executive departments of the United States. Obviously, a copy of a registration statement could not be adduced if there had been no registration. Since the nonexistence of any registration statement was material, and the significance and efficacy of a certificate to that effect was deemed to be supported by the aim and import of the statute, the defendants' objections were overruled. I am satisfied that this was not error.
The defendants argue that the jury should have been charged that it was not unlawful to sell an unregistered security unless it was known by the defendants: (1) that the security should have been registered; (2) that it was not registered; and (3) that sale of unregistered securities was forbidden. It was ruled at the trial that it was sufficient to establish that the defendants wilfully and intentionally sold or delivered unregistered securities by use of the mails. I did not then and do not now conceive an element of the crime charged in counts 15 to 21, inclusive,
to be actual knowledge that a security was being sold in violation of the law.
Particular stress was laid in the arguments and briefs upon the charge to the jury relative to reasonable doubt. Specifically, the objection was to that portion of the charge which reads: "The term reasonable doubt means a doubt for which a good reason can be given in the light of all the evidence." The statement concludes: "It means a doubt which is substantial and not merely shadowy. It does not mean a doubt which is merely capricious or speculative. Neither does it mean a doubt born of reluctance on the part of a juror to perform an unpleasant duty ...