including the following, were sent to the trial judge (N.T. 206):
"In your charge, we were told that the only reason this case has come to Federal Court is because he used the mails to send this statement. If a man uses the mails for such a statement must the Government prove that the defendant had knowledge of the law governing such mailing."
In answering this question, the trial judge said (N.T. 207-8):
'Now, I think maybe you have got confused by some argument that counsel made to you with what I said. You should not consider whether counsel may think this prosecution should be in the State Court or in the Federal Court. That is none of your and my concern. Congress has made this a crime. Whether it may be a crime under state law, too, or under any other law, has nothing to do with your decision here. * * *
'Now, do not go off on whether or not it should be in the Federal Court or somewhere else, as counsel for the defendant indicated to you at one point in the trial. That is a red herring. This is a situation where you are to decide on whether or not what was done by this defendant fell within a statute of the United States Congress. It is not for you or me to say whether we think this should be a crime. Congress says that, and we are sworn to follow the laws of Congress.'
Near the end of the supplemental instructions to the jury, after objection by counsel for defendant to the use of the term 'red herring,' the trial judge said (N.T. 214):
'I want to emphasize that when I use the term 'red herring,' I am not trying to characterize the arguments of the defense counsel as foolish, because they are very good. He is an extremely able lawyer. He has presented a very good argument to you. You remember it all, and you should remember the United States Attorney's argument. All I am saying is that I do not want you to decide the thing on the fact that this might have been brought before a court somewhere else. You have got an Act of Congress that you as a jury in this court must decide on. You must decide whether it has been violated or not. That is your job.'
After a careful review of the entire record, the trial judge does not believe that it is 'in the interest of justice'
to grant a new trial because of use of the term 'red herring' under these circumstances.
And now, June 13, 1957, it is ordered that (1) defendant's motion for judgment of acquittal, made April 5, 1957, is denied,
and (2) defendant's motion for judgment of acquittal and, in the alternative, for a new trial, filed April 8, 1957, is denied.