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November 23, 1956


The opinion of the court was delivered by: DUSEN

Defendant's motions for new trial and judgment of acquittal have been filed following a jury's verdict of guilty on both counts of the indictment. The first count charged the defendant with conspiring, in violation of 18 U.S.C.A. § 371, with C. K. Meierdiercks and an unknown individual (hereinafter called Mr. Rice, which name he used in dealing with the victim, Miss Vossler) to transport in interstate commerce securities or money having a value of $ 5,000 or more, knowing the same to have been taken by fraud in violation of 18 U.S.C.A. § 2314. The second count charged the defendant with the substantive offense of transporting, with fraudulent intent, from Philadelphia to Washington, D.C., a fraudulently obtained certified check having a value of $ 5,760 in violation of 18 U.S.C.A. § 2314.

 Mr. Meierdiercks was arrested for this offense in late January 1955 and pled not guilty. In April 1955 he gave F.B.I. agents a statement which he alleges is a full description of the transaction. Subsequently, he entered a plea of guilty and, on July 8, 1955, he was sentenced to a three-year prison term which he was serving at the time of the trial. Mr. Rosenberg was indicted on November 16, 1955, and entered his not guilty plea on November 28, 1955.

 I. Alleged error in permitting jury to be informed of guilty plea of co-conspirator by opening argument of Government attorney and testimony of such co-conspirator, even though no objection was made to such argument and testimony and defendant requested the judge specifically to charge that co-conspirator is 'presently serving a jail term for committing the offense with which this defendant is charged.' (Paragraphs 5, as amended on 11/14/56, and 14 of Motions.)

 The principal witness for the prosecution was Mr. Meierdiercks, whose testimony covers 100 pages of the notes of testimony *fn3" out of approximately 300 pages (estimated) required to transcribe the testimony given from the witness stand. The reasons why Mr. Meierdiercks, in April 1955, changed the uncooperative attitude he displayed to the F.B.I. agents at the time of, and immediately after, his arrest in late January 1955 and thereafter entered his guilty plea were covered fully on cross-examination. *fn4" The able, conscientious and experienced counsel for defendant based the defense primarily on tearing down Mr. Meierdiercks' testimony concerning defendant and his credibility. *fn5" Defendant's opening speech concluded with this sentence:

 'Now, you and I have to listen and judge whether the man's telling the truth or not, and that's about the case.' *fn6"

 'This man is the most unmitigated liar I have ever seen. He is not worthy of believe under oath. How a man could figure a thing like this out -- and he had 3 months in jail to do it.'

 In order to obtain a favorable verdict, defendant tried at the trial to persuade the jury that the co-conspirator's change of plea from not guilty to guilty resulted from a government promise of leniency if he testified against defendant (e.g., N.T. 327-332) and that the co-conspirator hoped to secure early parole as a result of his testimony (e.g., N.T. 333-336). After this strategy proved unsuccessful, defendant has secured additional counsel (not present at the trial) to argue that such a course followed by the experienced and able trial counsel was reversible error.

 Under these circumstances, the cases *fn8" relied on by defendant's additional counsel (who appeared for the first time at the argument on the motion for new trial), holding that it is reversible error to refer in the charge to the guilty plea of a co-conspirator and state that the jury may consider it in reaching their verdict, are inapplicable to this record. The charge does not mention this guilty plea even though defendant's counsel requested the court to charge that defendant is 'presently serving a jail term for committing the offense with which this defendant is charged.' *fn9" On at least three occasions the court instructed the jury that their verdict was to be based only on the testimony coming from the witness stand and the exhibits in the light of the court's charge, so that three sentences in the middle of a 12-page opening argument could hardly have been very significant in the jury's deliberations five days later. *fn10" Also, the court emphasized that the co-conspirator's testimony had to be scrutinized and acted upon with caution and care for three separate reasons. *fn11"

 Cases such as Walker v. United States, 8 Cir., 1937, 93 F.2d 383, 395, *fn12" Nigro v. United States, 8 Cir., 1941, 117 F.2d 624, 632, 113 A.L.R. 1128, and Stewart v. United States, 9 Cir., 1914, 211 F. 41, 48, state that where the co-conspirator testifies fully as to his part in the transaction, it is not error for the jury to know of his guilty plea. This principle in these cases seems applicable to this record. In this respect, the record does not contain the 'plain error' contemplated by F.R.Crim.P. 52(b), 18 U.S.C.A.

 II. Alleged denial of right to effective assistance of counsel (Paragraph 1 of Motions).

 At the start of the trial, defendant's counsel moved for a continuance on the ground that they had just learned that one of the witnesses (Mr. Gorman), who had helped with the preparation of their cases, was a 'government informer.' *fn13" Defendant produced no evidence to substantiate this claim and the motion was denied. *fn14" On October 5, 1956, at the argument on the motion for new trial, *fn15" counsel for defendant offered to take the witness stand in order to prove their contention that Mr. Gorman's conduct had prevented their client from having the effective assistance of counsel. The trial judge granted the parties leave to file affidavits on the subject. *fn16" Such affidavits, filed on November 5, 1956, and the testimony show that Mr. Gorman introduced defendant to his counsel in the fall of 1955; that at defendant's request he undertook to assist in the preparation of the defense; and assisted defendant in the procurement of witnesses as late as June 3, 1956, and in obtaining information; that he did not disclose any conversations he heard with defendant and his counsel to the Government representatives; that he came to Philadelphia on June 4, 1956, to discuss the case with the Assistant United States Attorney handling the matter at the latter's request; that defendant knew that he had received Mr. Meierdiercks' 'share of the proceeds from defendant as I testified at the trial of the case;' and that he was not induced by threat or promise of reward from the Government representatives to meet with defendant and his counsel. Mr. Gorman's affidavit makes clear that his discussions with both defendant's counsel and Government counsel were restricted to developing the facts as he knew them and he was not compensated by either party. There is no proof whatever that Mr. Gorman was a Government informer or that he discussed this ...

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