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United States v. Cohen.

decided: September 17, 1947.

UNITED STATES
v.
COHEN.



Author: Kalodner

Before MARIS, GOODRICH, and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Morris W. Cohen and Philip Lewis were charged in an information with agreeing to sell an automobile in violation of Maximum Price Regulation 540, as amended, issued pursuant to the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq.

At the conclusion of the Government's case, the Court directed a verdict in favor of Philip Lewis. The trial proceeded as to Cohen, and upon a verdict of guilty he prosecuted this appeal asserting four errors below: First, the right of cross-examination was abridged by the Court in refusing to permit questions directed to the Government's chief witness; second, the refusal of the Court to charge as requested with respect to the special interest of that witness; third, the denial of appellant's application to apply to the Emergency Court of Appeals for review of the Regulation involved pursuant to the provisions of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 924(e)(1); and fourth, a variance between the allegations of the information and the proof.

In order to fully appreciate the appellant's first point, it is necessary to relate the background of the case. On June 30, 1946, the Emergency Price Control Act lapsed. On July 3, 1946, the appellant and his partner purchased in open market the automobile here involved for $1,035. On July 25, 1946, price controls were reinstated. The maximum price for the automobile in controversy under MPR 540 and its amendments on June 30, 1946, and on July 29, 1946, was $735.83.

The focal issue developed was whether, as the Government contends, Cohen on July 29, 1946, had concluded an agreement to sell the automobile to one Walter L. Straw for $1,160, or, as Cohen contends, he had merely made an agreement on condition that he could legally sell at that price.

Straw testified, in part, that on July 28th he spoke to Cohen about the automobile and that Cohen told him that he paid $1,050 for it and could not sell it unless Straw agreed to pay $1,160. Straw agreed, and returned on July 29th after having conferred with the representatives of the Office of Price Administration. On July 29th, the transaction, according to Straw, was concluded and Straw was to return for the automobile in the afternoon, but, by prearrangement, the investigators for the Office of Price Administration entered upon Straw's signal and the arrest was made.

Cohen testified, in effect, that since he purchased the automobile in a free market, he was in doubt as to whether he could not legally sell it for $1,160. Further, although he arranged the sale to Straw, he specifically told Straw to return in the afternoon because he wished to confer with his attorney to find out whether he could legally sell the automobile for $1,160.

Cohen also testified that he told the same story to the federal agents at the time of his arrest, and in this he was corroborated by Lewis. The federal agents, however, testified that Cohen told them he did not think he violated the law because he had bought the automobile in a free market for $1,035. There was no evidence, other than the testimony of Straw and Cohen, as to what transpired between them just prior to the entry of the arresting officers.

In this setting, although prior to the taking of the testimony of Cohen and Lewis, Straw, on cross-examination, was asked, "And you have demanded of these defendants the sum of $1,300, haven't you?" On objection by the Government, the question was finally sought to be supported on the ground that it went to the credibility of the witness and to show his special interest in the case. The objection was sustained. Although it does not appear in the record whether Straw had actually instituted a civil action to recover the overcharge, that was assumed in the argument on the objection.

The question thus raised is whether the appellant was at the door of an appropriatte subject of inquiry. We think he was.Straw was obviously the chief prosecution witness. His testimony as to what transpired between him and Cohen was crucial and damaging. It was contradicted by Cohen. The other evidence was not necessarily inconsistent with either story.Thus, credibility became exceedingly important if not decisive, and "searching cross-examination" was proper. Alford v. United States, 1931, 282 U.S. 687, 692, 51 S. Ct. 218, 75 L. Ed. 624.

We think the fact, if it was a fact, that Straw had instituted a civil action against the appellant based upon the same transaction charged in the information would have a direct bearing on the credibility of Straw, to show bias and prejudice, as well as his relation to the case.

The rule is aptly stated in Wigmore on Evidence, 3rd Ed., Vol. 3, Section 949, p. 502, as follows:

"The pendency of civil litigation between the witness and the opponent is usually relevant, not only as a circumstance tending to create feeling, but also as involving conduct expressive of feeling (post § 950); and while the mere fact of litigation upon a disconnected matter may not necessarily show bias, still ...


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