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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.

Ample evidence *fn1" was introduced at the trial to justify a finding by the jury that in mid-January 1955 defendant had conspired with Mr. Meierdiercks and Mr. Rice to falsely and fraudulently obtain the certified check endorsed in blank from the victim, Miss Vossler, in Philadelphia and that the defendant had taken it to Washington, D.C., where it was cashed. The testimony disclosed that, acting at the suggestion and direction of defendant, Messrs. Meierdiercks and Rice falsely represented to Miss Vossler on separate visits that they were representatives of oil companies seeking to purchase her oil leases in order to persuade her of a false high value for these leases. As part of this plan, Mr. Meierdiercks agreed to buy the leases for $ 57,600 if she would agree to pay him in advance $ 5,760 for federal taxes, to be paid by his oil company, in order to relieve her of federal income taxes on her capital gain. The certified check endorsed in blank for $ 5,760 was delivered by Miss Vossler to Mr. Meierdiercks in Philadelphia and the latter delivered it to defendant, who took it to Washington, D.C., *fn2" where it was cashed.

 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"

  Defendant's closing speech was principally devoted to an attack on Mr. Meierdiercks, *fn7" including language such as:

 '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 case with the Government representatives assigned to its prosecution until after his last meeting with defendant and his attorney on June 3, 1956. See United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, 534-535, where defense counsel failed to prove a similar contention even though a Government agent was involved. *fn17" Defendant's contention rests solely upon inferences and suspicions which are rebutted by the affidavits of Mr. Gorman and Special Agent Murphy.

 III. Alleged error in permitting reference to oil leases (Paragraphs 9 and 15 of Motions).

 The trial judge ruled that the fact that defendant had admitted on another occasion that he had been in the oil lease business in the 1930's was relevant, since the fraudulent scheme involved indicated that the originator of this scheme must have had some knowledge of this business. *fn18" Subsequently, the Government introduced uncontradicted testimony showing that this defendant was arrested after issuance of a warrant for his arrest and that, during the course of, and incidental to, the arrest, the Government agents took into custody 'a group of papers which Mr. Rosenberg stated were oil lease contracts' (N.T. 308). At the beginning of the testimony concerning defendant's arrest, his counsel objected that an unreasonable search and seizure had taken place at that time and none of the items taken at the time of the arrest were allowed to be shown to the jury. Defendant now objects that reference was made to items found in defendant's hotel room at the time of his arrest. *fn19" In addition to the fact that no such objection was made to the reference to the items when the testimony was given, the search was fairly incidental to the arrest, which was made pursuant to a warrant. Under these circumstances, the testimony concerning these documents is no basis for a new trial. See United States v. Petti, 2 Cir., 1948, 168 F.2d 221, 223, and cases there cited. *fn20"

 IV. Alleged error in refusing defendant permission to examine statements given by Mr. Meierdiercks to F.B.I.

 The defendant had counsel when he entered his not guilty plea in November 1955. This case appeared on the Criminal Jury Trial List of this court for the periods commencing April 2 and June 4, 1956. The list for the period commencing June 4, 1956, was sent to counsel for defendant on or about May 10, 1956. *fn21" It was not until May 24, 1956, that defendant filed a motion under F.R.Crim.P. 6(e) and 16 for examination of the testimony given by Mr. Meierdiercks before the Grand Jury in November 1955 and of the statements given by him to representatives of the F.B.I. After consideration of oral argument and briefs, the trial judge denied this motion by order of May 31, 1956, which has attached to it in footnotes the reasons for the action taken. At the time of this ruling in May 1956, the trial judge notified counsel for defendant that he could ask for the production of the testimony given before the Grand Jury and the statements at the trial and that the trial judge would examine them in camera to see if they had impeachment value, even though the Government refused to deliver them to the defendant for his inspection and even though the defendant was unable to prove that the contents of the Grand Jury testimony and of the statements were inconsistent with the testimony that Mr. Meierdiercks gave at the trial. Defendant was unable to show that there was any inconsistency between Mr. Meierdiercks' testimony on the stand and the statements he made to the Grand Jury and to the F.B.I. agents. *fn22" Under such circumstances, the defendant had no right to see the statements or the Grand Jury testimony under the federal court decisions. Gordon v. United States, 1953, 344 U.S. 414, 73 S. Ct. 369, 97 L. Ed. 447; Scanlon v. United States, 1 Cir., 1955, 223 F.2d 382; Jencks v. United States, 5 Cir., 1955, 226 F.2d 540; and cases cited in those cases. *fn23"

 However, at the conclusion of the first day of the testimony, the trial judge was furnished the transcript of the Grand Jury proceedings (C-1) and the statement of Mr. Meierdiercks (C-2), which are in sealed envelopes in the file, available for consideration by the appellate courts. At the beginning of the second day of trial, the trial judge reported to counsel that the statements were, if anything, more favorable to the Government than Mr. Meierdiercks' testimony, but they did not cover one point covered in his testimony -- namely, they did not contain the information that Mr. Meierdiercks overheard certain phone calls from the defendant to Miss Vossler. Defendant's counsel questioned Mr. Meierdiercks on this and the court told the jury that he had not covered this point in his testimony before the Grand Jury. This procedure was more favorable treatment than the defendant was entitled to under the decisions cited in the preceding paragraph and was in accordance with that suggested by the decisions of the Circuit Court of Appeals for the Third Circuit and the Second Circuit. See Reynolds v. United States, 3 Cir., 1951, 192 F.2d 987, 997-998, reversed on other grounds in opinion stating that this procedure is applicable in a criminal case, 1953, 345 U.S. 1, 12, 73 S. Ct. 528, 97 L. Ed. 727; United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, 536-537; cf. also, United States v. Mesarosh, D.C.W.D.Pa.1953, 116 F.Supp. 345.

 The other reasons for new trial advanced by defendant have no merit. *fn24"

 The defendant was represented by able counsel, who worked diligently on his behalf, and he had a fair trial (see N.T. 16-17 of Record of 10/5/56).

 Defendant's motion for judgment of acquittal or for new trial is denied.

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