The opinion of the court was delivered by: WATSON
The defendants found guilty by verdict of a jury on five counts of aiding and abetting in wilful misapplications of moneys, funds, and credits of the Mayfield State Bank, Mayfield, Pennsylvania, 18 U.S.C.A. § 656, on twenty-three counts of aiding and abetting in making false entries in the books and records of said bank, 18 U.S.C.A. § 1005,
on one count of conspiracy to commit offenses against the United States of America, 18 U.S.C.A. § 371, and on thirty-five counts of violating the mail fraud statute, 18 U.S.C.A. § 1341, move for judgment of acquittal
and in the alternative for a new trial
assigning thirty-nine reasons in support of their motion.
The trial covered a period of twelve days and presents a transcript of one thousand one hundred fifteen pages.
The defendants first contend that the evidence was not sufficient to sustain a conviction.
In considering the sufficiency of the evidence to sustain the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government and must give to the government the benefit of all the inferences which reasonably may be drawn from the evidence. United States v. Toner, D.C., 77 F.Supp. 908. The verdict of the jury must be sustained if there is substantial evidence to support it.
A perusal of the record in the light of these principles satisfies the Court that the verdict of the jury must be upheld as to all counts except Count 5 of Indictment No. 12375. As to the evidence in support of Count 5 in Indictment No. 12375 there is some doubt as to its sufficiency and this doubt should be resolved in favor of the defendants. Consequently, defendants' motion for a judgment of acquittal as to all the defendants on Count 5 in Indictment No. 12375 will be sustained. As to all other counts, it is not necessary to recount the evidence at this time. It is sufficient to say that there was ample substantial testimony supporting no other reasonable hypothesis but that of guilt of the defendants on all counts except Count 5 of Indictment No. 12375.
Unless there was some error in the conduct of the trial the verdict of the jury except as to Count 5 in Indictment No. 12375 must stand. In this Opinion the Court will take up the reasons assigned by the defendants in support of their motion in the order of their alleged occurrence during the proceedings.
The statement by government counsel, which was interrupted by defense counsel, was made merely to acquaint the Court with his situation anent his not being prepared to enter upon the trial of the case at that time preliminary to requesting a respite for a few days until he would be ready to proceed with the trial.
The Court sees no impropriety in that. Nothing in or about the statement purported to elicit or did elicit the sympathy of the jury. When the statement was made, the prospective jurors had not been examined on their voir dire and, of course, none had been qualified or accepted as jurors. If defense counsel believed that government counsel's statement had been prejudicial or nocuous to the defendants, he should have challenged for cause all prospective jurors whose sympathy had been induced by the statement, which could have been ascertained on the voir dire examinations of the jurors. Under the circumstances the statement of government counsel was not prejudicial to the defendants.
The second reason advanced by the defendants is that the Court erred in its refusal to sever the conspiracy count and in requiring defendants to go to trial on all counts in both indictments. This Court gave its reasons for denying defendants' motion to sever the conspiracy count in an Opinion reported in 15 F.R.D. 183. It has been generally held that in a situation such as existed in this case, the Court, in its discretion, may consolidate for trial two or more indictments, including the matter of an indictment which charges a conspiracy in one count and substantive offenses in other counts.
The third and fourth reasons advanced by the defendants are that the Court erred in not granting the several motions for mistrial, arising out of the alleged obvious attempts of the United States Attorney to exaggerate the charges by: (a) referring in the opening to '342 checks aggregating four and a third million dollars'; (b) offering testimony as to 74 checks (instead of 342) totaling $ 840,092.84 (instead of four and a third million dollars); and (c) offering testimony that checks totaling $ 840,092.84 were involved in the case when the Government's testimony was to the effect that the amount of the bank's loss was $ 170,000; and that the Court erred and, in so doing, deprived defendants of a fair and impartial trial, in allowing the Government's witnesses to testify as to the number of checks as 74 and the total thereof as $ 840,092.84, when the Government's own witnesses testified that the bank's loss was $ 170,000. Defendants' contentions are wholly lacking in merit. The declarations made by the attorney for the government in his opening statement contained nothing prejudicial to the defendants. Even if the opening statement had contained matter noxious to the defendants, such matter, if not supported in any way by evidence subsequently introduced, instead of prejudicing the minds of the jury against the defendants, would tend to give the jury an unfavorable impression of the government's case. The very purpose of an opening statement is to apprise the jury how the case developed, its background, and what will be attempted to be proved; but it is not evidence. Williams v. United States, 55 App.D.C. 239, 4 F.2d 432; Nichamin v. United States, 6 Cir., 263 F. 880; Butler v. United States, 4 Cir., 191 F.2d 433. It would be going far indeed to hold that the declarations ostensibly made in good faith by government counsel in his opening statement amounted to misconduct and constituted reversible error. The opening statement of government counsel was not improper.
However, there was no serious failure by government counsel to introduce evidence to prove what he stated in his opening. Copies of the Mayfield State Bank's cash letters in evidence sent to various correspondent banks and to the First National Bank of Jermyn and the First National Bank of Carbondale show that Scoblick Brothers' checks, which were identified as such, aggregated $ 3,746,118.63. An additional $ 104,702.80 was evidence by photostatic copies of Scoblick Brothers' checks and an additional $ 402,912.88 was identified on the Mayfield State Bank's copies of cash letters of the First National Bank of Jermyn. The total of these items in evidence was $ 4,253,734.31. It was not claimed by the government that the loss suffered by the bank was the sum total of the 342 checks. It was well understood by everyone, including the jury, that the aggregate was occasioned by reason of the fact that in the float or kiting of checks, numerous checks represented replacements and as to the replacements the bank suffered no loss.
The fifth and sixth reasons are that the Court erred in refusing defendant's various motions for a new trial arising out of alleged obvious attempts of the United States Attorney to inform the jury that the Mayfield Bank had been forced to close its doors, by reason of defendants' actions and the Court erred in permitting testimony by various government witnesses allegedly calculated to inform the jury that the Mayfield Bank had closed and, in so doing, deprived defendants of a fair and impartial trial. On each occasion when a statement was made from which the jury could infer that the Mayfield State Bank had been forced to close its doors by reason of defendants' actions, the Court either sustained defense counsel's objection or struck out the testimony and instructed the jury to disregard such statement. Cf. United States v. Kushner, 2 Cir., 135 F.2d 668. The defendants' complaint under these circumstances is clearly without merit. The Court felt at the time of the trial that such statements were not material or relevant to the case. Such statements, however, were not prejudicial to the defendants. There are numerous decisions in cases with facts similar to those in the present case in which the Courts make reference to the fact that there was evidence that the bank finally closed its doors. Agnew v. United States, 165 U.S. 36, 17 S. Ct. 235, 41 L. Ed. 624; United States v. Giles, 300 U.S. 41, 57 S. Ct. 340, 81 L. Ed. 493.
The seventh and eighth reasons advanced by the defendants are that the Court erred in admitting in evidence the purported records of the Mayfield Bank and that the Court erred in admitting in evidence the purported records of the banks with which the Mayfield Bank was in correspondence. Title 28 U.S.C.A. § 1732 provides for the admissibility of books and records made in the regular course of business. That section also contains the following language: