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March 24, 1947

JOHNSON et al.

The opinion of the court was delivered by: FEE

This trial, before a jury, resulted in the conviction of Donald M. Johnson, Miller A. Johnson, sons of former federal judge Albert W. Johnson of this district, Jacob Greenes and John Memolo, and the acquittal of Albert W. Johnson, Jr. and ex-Judge Johnson.

At the close of the evidence for the Government, motions for acquittal were made by all defendants. These motions were reserved and denied just before the court instructed the jury. At the close of all the evidence, the defense having introduced testimony, all defendants made motions for acquittal which have been reserved. Finally, after a verdict of conviction, motions for acquittal were made on behalf of the four convicted defendants. The court denied all these motions and will discuss in this opinion the matters which were urged upon the previous arguments.

 As regards the statute of limitations, the court found at the close of the Government's case, that there was evidence from which it might be inferred there was a continuing conspiracy of which all defendants were participants and that some of the acts alleged as overt acts in the indictment had been proved to have occurred. Thus a prima facie case was made out. The bar of the statute is a matter of defense. It cannot be raised by demurrer or motion for judgment of acquittal at the close of the evidence offered by the Government. *fn1" The court reserved the motions upon the theory that in developing the defense that the conspiracy ended in 1939 with the payment of the Williamsport fees, the court might find implications which would explain some of the evidence of the prosecution and thus permit the court to sustain the motions for acquittal as of the end of the Government's case. Since no such implications were developed by the defendants in attempting to make out the defense of the statute of limitations, the court denied the reserved motions, at the close of all the evidence

 When all the evidence is taken into consideration there are several matters which indicate the continuance of the conspiracy past September 11, 1942. The first of these are matters relating to concealment. The second are definite acts. The third are admissions of the defendants Greenes and Memolo respectively.

 It is definitely charged in the indictment that one of the subsidiary objects of the conspiracy was the concealment of the acts and designs of the conspirators. Michael, who was charged as a co-conspirator, testified that he committed perjury before the Grand Jury by denying knowledge of conversations with Donald Johnson and of actions of Donald Johnson in reference to the transfer of the assets of Central Forging Company. He now tells an entirely different story regarding these incidents. He testified that he took this course in order to protect himself and Donald Johnson from the consequences of disclosure. He adhered to this course of conduct until he himself had been indicted in the other conspiracy case.

 A similar incident relates to the check which Abe Greenes sent to Donald Johnson. The Government proved that Jacob Greenes, the defendant, gave his brother Abe Greenes a sum of money in cash and asked Abe Greenes to send a check to Donald Johnson for $ 350. Abe Greenes testified in the Government's case that he sent the check; that he did not know what the money was for; that he owed no money to Donald Johnson; and that he was subsequently told by Jacob Greenes that it had been agreed that the money was to be explained as an attorney fee to Donald Johnson for obtaining the concession of a cigar stand in the Jermyn Hotel. Neither the date of the check nor the date of the agreement for concealment was established in the prosecution's case. It might, therefore, have been explained that the date of these transactions was before September 11, 1942, and this, of course, would have had an effect upon the granting of the reserved motions.

 However, the defense proved positively by a teller in the bank, and Donald Johnson's own records, that the date of the check was October 6, 1942, thus showing an action in relation to money transactions between Jacob Greenes and Donald Johnson as of this date. The evidence introduced by the defense also tends to show that Donald Johnson attempted to conceal this transaction in his books. Furthermore, he admitted on cross-examination that he met with Jacob Greenes at Salzburg's office and discussed this check. At that time he told Jacob Greenes that there was nothing to explain; that the check was for legal services and that was all there was to it. This is the message which Jacob Greenes then transmitted to Abe Greenes and concerning which Abe Greenes testified in the Government's case. From this evidence, the jury might well conclude that Jacob Greenes and Donald Johnson were acting together after September 11, 1942, and that there was a deliberate effort to conceal the transaction sometime in 1944 by giving a false explanation. *fn2" Thus the testimony of the defense, instead of establishing that the acts were barred by statute, gave proof positive that they had happened within three years before September 11, 1945, and the only question was whether or not these acts had relation to the conspiracy charged in the indictment

 The defense, likewise, proved as a fact that Michael filed his first and final account in the Central Forging Company case July 9, 1943. This is one of the overt acts charged in the indictment being overt act numbered 33. The defense proved that this was important in the consideration of the various testimony relating to the Central Forging case and particularly the testimony of Michael. From the document and the other testimony, however, the jury, if they believed Michael's testimony in the Government's case, could have drawn the implication that this was part and parcel of the conspiracy so charged. Thus, again, the defense did not establish that the conspiracy had ended with the conclusion of the Williamsport case in 1939, but proved an act which was charged in the indictment as tending to show its continuance and existence in 1943.

 Subsequently, the court struck this document from the evidence and it was never read to or considered by the jury. The court took this action because of the fact that the defense had rested and five of the defendants had failed to testify. The court believed as a practical matter that it might be highly prejudicial to permit the document to be introduced at this stage even though the court was of opinion that it was entirely competent in rebuttal.

 Upon this basis, the court overruled the motions for acquittal at the close of all the evidence as far as the statute of limitations was concerned. The court instructed the jury positively that they must find that one of the overt acts charged in the indictment had been committed within three years prior to the finding of the indictment and that such an act must be one done by a person whom they found was a participant in the conspiracy and was done to effect the objects of the conspiracy and was reasonably effective for that purpose. It is true that the court did say that some of the overt acts charged in the indictment had been proven. On objection, the court explained this instruction in accordance with the context of the body of the charge that even though they found an act so charged had been committed, they must, before they could find a conspiracy had come to fruition, find that such an act was done to further the criminal design by one of the conspirators and was reasonably effective to that end.

 The court carefully instructed out the Koppelman and Kizis incidents as overt acts against the balance of the alleged conspirators, but as far as Memolo is concerned, his knowledge as shown by his admissions of both the Koppelman and Kizis cases, might indicate that as far as he was concerned, they were part of the continuing conspiracy. This same situation is true as to the defendant Greenes on his own admissions. Neither Greenes nor Memolo were involved in the Central Forging Company case but if a continuing conspiracy were proved *fn3" which involved them and an overt act were done by Donald Johnson or Michael in the Central Forging case, Greenes and Memolo would be bound as members of the conspiracy although they had no direct part in the particular transaction. *fn4"

 The next question relates only to Donald Johnson. Donald Johnson was a defendant in a conspiracy case which involved some of the same incidents as those which have been related in evidence by Michael in this case, and also by the defense witness Davis. The indictment in this cause was against Donald Johnson, Michael, Davis, Knight and Fenner. Michael was the trustee in bankruptcy of the Central Forging Company. This indictment was offered and received in evidence as was also the verdict showing that Michael, among others, was convicted, and Davis and Donald Johnson were acquitted. The court admitted this evidence in accordance with the rule of United States v. DeAngelo, 3 Cir., 138 F.2d 466. However, the court rejected the offer of the transcript of evidence given in the former trial and portions of it when it was tendered by the defense. It seems so far as the DeAngelo case is concerned, this court carried out specifically the direction of that opinion. However, the court instructed the jury that the conspiracy charged in the indictment so received in evidence, was an entirely different crime than the charge of conspiracy made in the instant indictment. The alleged conspirators in the former case were charged with a conspiracy to violate Section 52, sub. a, U.S.C.A. Title 11. The substantive offense could have only been committed by a trustee in bankruptcy. Apparently, those convicted in the criminal case were the trustee and his attorneys and others connected with the bankruptcy administration. The substantive offense which was charged as the object of the conspiracy related only to appropriating or transferring the property 'which came into his charge as trustee.' It is perfectly apparent in this connection that Donald Johnson may have received the money as charged in the former indictment as an overt act, but the jury might have found that he had no idea that the money came from the trustee or was part of the assets of the bankrupt estate. He may well have thought that it was part of the legitimate fees allowed to the attorneys which was paid to him on account of his supposed influence. Further, the jury may have concluded that although he received the money he was not part of a ...

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