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United States v. Griffin.

decided.: July 11, 1949.

UNITED STATES
v.
GRIFFIN.



Author: Mclaughlin

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellant was convicted under Title 18 U.S.C.A. § 88 [now § 371] of conspiracy to defraud the United States. During the period covered by the indictment, he was a United States commissioner. The indictment alleged that he, together with a deputy United States district court clerk and three Chinese interpreters conspired to defraud the United States by issuance of passports to persons not entitled thereto. Overt acts in connection with the conspiracy specifically attributed to the appellant were that he certified falsely that documents purporting to be affidavits in connection with passports, had been subscribed and sworn to in his presence. Two of the interpreter defendants pleaded guilty prior to the commencement of the trial and were witnesses for the Government. The third interpreter defendant was not tried as he was never apprehended. The trial was concluded July 1, 1948. There were verdicts of guilty against appellant and the deputy clerk. Motions for acquittal on behalf of appellant and the deputy clerk were made at the end of the Government's case and renewed at the close of all the evidence. The Court reserved decision in these and on November 30, 1948, granted the motion for judgment of acquittal in favor of the deputy clerk and denied the companion motion on behalf of appellant.

Appellant's first point is that the admission of voluminous testimony regarding the deputy clerk was reversible error even though, as expressly conceded, the jury was cautioned to disregard that testimony with reference to appellant. The theory of the argument seems to be that the Court should have granted the motion for acquittal on behalf of the deputy clerk prior to giving the case to the jury, and that if this had been done, then the Court should have and would have specifically instructed the jury to eliminate from its consideration any evidence against the deputy clerk, particularly in connection with the appellant. It is unwarrantably assumed that such course would have produced a different result as to the appellant.

The point is without merit. The Court in reserving decision on the motion for acquittal on behalf of the deputy clerk acted in exact accordance with Rule 29(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The pertinent part of that rule reads: "If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict."

The second point is that the Trial Court committed reversible error by admitting into evidence two statements of the deputy clerk (one oral, one written) which he had made after the termination of the conspiracy. Both of the statements contained references to appellant.

The oral statement was made by the deputy clerk to his superior, the court clerk, and the latter testified to it. The Court in allowing the testimony told the jury that "under no circumstances should you consider it damaging evidence or evidence at all against the defendant Griffin." The written statement was received in evidence the same way and under the same kind of restrictive language. Appellant again argues that the later discharge of the deputy clerk on his reserved motion for acquittal materially and improperly affected the situation. We cannot agree. The District Judge on the motion for acquital followed both the letter and spirit of Rule 29(b) of the Federal Rules of Criminal Procedure and in permitting the statements to go into evidence he properly protected appellant by limiting their use to their maker. Gambino v. United States, 3 Cir., 108 F.2d 140, lends no support to appellant's position. In that matter there was a statement by a defendant who had pleaded guilty prior to trial. The statement was allowed in evidence against all the other defendants remaining on trial. In reversing the judgment of the lower court, we held that the statement was admissible only against the maker thereof and that since his plea of guilty had taken him out of the case, his statement was not admissible at all. The instant circumstances are rather quite similar to those in United States v. Alfano, 3 Cir., 152 F.2d 395, where we upheld the admission in evidence against a co-defendant alone, of two statements made by him after the conclusion of the conspiracy.

Appellant's third point asserts that the Trial Court failed to properly define the specific crime charged against him.

The contention is that the indictment charged appellant with conspiracy to defraud the Government and that the Court in its charge merely defined appellant's crime as conspiracy to commit an offense against the United States. Examination of the charge does not bear this out. The Court, at the very beginning of its charge, told the jury that the indictment in the case had been read to them by the United States Attorney, who, the Court said, had given the jury "a comprehensive definition of the conspiracy that these defendants are alleged to have committed." The Court then stated that: "In general, the indictment charges that these defendants conspired: * * * to defraud the United States (a) of and concerning its governmental functions and rights hereinafter described, to wit: of and concerning its rights to have its business and affairs, and particularly the execution of documentary evidence of United States citizenship and the execution and applications for United States passports conducted honestly and impartially in its behalf as the same should be conducted * * *."

The Court followed this by giving the jury the details of the indictment.

At the request of the defense, the Court specifically charged that: "The indictment charges a single conspiracy between the defendants * * * to defraud the United States. If, from the evidence in this case, you do not believe, beyond a reasonable doubt, that there was such a single conspiracy to defraud the United States, or if you believe that there were a number of separate conspiracies, * * * then you must acquit the defendants."

In reading the conspiracy statute to the jury the Court at first omitted the language "or to defraud the United States in any manner or for any purpose". His attention was called to this after he had charged all of the above. He then told the jury: "I defined the conspiracy statute for you by stating, 'If two or more persons conspire to commit any offense against the United States', but the statute goes on and says, 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall * * *' and then the penal provisions appear in the statute; so wherever I use the phrase in my charge heretofore 'to commit any offense against the United States', you must add, 'or to defraud the United States'."

We think that the charge, considered as a whole, gave the jury a fair, comprehensive picture of the crime involved. United States v. Levy, 3 Cir., 153 F.2d 995; United States v. Noble, 3 Cir., 155 F.2d 315; United States v. Max, 3 Cir., 156 F.2d 13.

The next point urges that reversible error was committed in admitting certain testimony by appellant's secretary. It is claimed that the testimony was irrelevant because it concerned a person who was a citizen of the United States and entitled to the passport sought by him. A reading of the testimony shows it to have been material in indicating appellant's course of conduct and state of mind in connection with the fraudulent passport scheme. The evidence was clearly admissible. Glasser v. United States, 315 U.S. 60, 62 ...


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