that local counsel did an able, lawyer-like job for his client in this case.
II. Alleged restriction of the right of cross-examination.
Defendant contends in his briefs that on November 4, 1957 (N.T. 456-470), the trial judge limited his right of cross-examination of the Government witness Meierdiercks.
Meierdiercks' cross-examination had been concluded, the Government had concluded its case, and the defendant was putting on his case when defendant's counsel produced photostatic documents of two sentences (D-18 and D-19) on indictments to which the witness had pled guilty and stated: 'We wish to introduce these two indictments * * *.'
Later, defendant's counsel had marked a photostatic copy of an indictment from the Southern District of Florida (D-20), which was apparently the basis of one of the two sentences. The trial judge ruled that the production of photostatic copies was not the proper way to proper way to prove these documents (N.T. 466 and 468). Counsel for defendant also requested permission to recall Meierdiercks to the stand for further cross-examination in order to show, through confronting him with D-18 to D-21, that (a) he had pled guilty in 1955 to criminal charges resulting from the events involved in this trial, and was testifying for the Government in this case solely in order to get a lighter sentence on the two offenses covered by D-18 and D-19, and (b) his enumeration of his past criminal offenses at this trial was not complete.
This request was denied since defendant's counsel had cross-examined Meierdiercks thoroughly for over four hours
and he had ample opportunity for cross-examination on both (a) and (b).
Furthermore, as to (a), Meierdiercks had already testified that he pled guilty to the indictment against him based on the facts involved in this case in order to get a lighter sentence and to cut down his costs (N.T. 232), defense counsel, in his closing argument, argued to the jury that this witness was testifying in this case to get leniency (N.T. 540-1, 546), and the trial judge instructed the jury that it was proper for them to consider whether his receipt of a three-year sentence in 1955 and the possibility of his being placed on probation might be taken into account in evaluating his testimony as being affected by his possible interest to favor the Government (N.T. 572). See United States v. Migliorino, 3 Cir., 1956, 238 F.2d 7, 11. Under these circumstances, the trial judge had the discretion not to permit the recall of this witness for cross-examination on the morning of the last day of the trial, which was the last day of this jury term and a day on which the defendant and his counsel had requested an early adjournment for religious reasons (N.T. 202-3).
III. Denial of alleged right to examine FBI files and Grand Jury minutes prior to the trial and to have lengthy adjournments to examine such statements during the trial.
The decided cases make clear that a defendant has no right prior to the trial to statements of witnesses taken by the F.B.I. or to a transcript of testimony given before the Grand Jury.
See Jencks v. United States, supra; Simms v. United States, D.C.Cir., 248 F.2d 626; United States v. Radio Corp. of America and National Broadcasting Co., D.C.E.D.Pa., 21 F.R.D. 103; United States v. Grossman, D.C.N.J.1957, 154 F.Supp. 813; United States v. Malizia, D.C.S.D.N.Y.1957, 154 F.Supp. 511; United States v. Palermo, D.C.S.D.N.Y. 1957, 21 F.R.D. 11; United States v. Anderson, D.C.E.D.Mo. 1957, 154 F.Supp. 374; United States v. Benson, D.C.S.D.N.Y.1957, 20 F.R.D. 602; cf. United States v. Miller, 2 Cir., 1957, 248 F.2d 163, certiorari denied 78 S. Ct. 332; 18 U.S.C.A. § 3500. The opinion of the United States Court of Appeals for the Third Circuit in this case says:
'The failure of the trial judge to permit counsel for the defendant to inspect at the trial the witness' grand jury testimony and statement to the F.B.I., as required by the rule announced in the Jencks case, compels us to grant a new trial.' (Emphasis supplied.)
See United States v. Rosenberg, 3 Cir., 1957, 245 F.2d 870, 871. For this reason, defendant's contention that this court had the duty of submitting Meierkiercks' F.B.I. statements and the Grand Jury transcript prior to the trial is rejected.
Meierdiercks was the first witness called by the Government after 4 p.m. on October 1 (N.T. 9). As soon as court adjourned that day (5 p.m.) and prior to the conclusion of the direct examination of this witness, defendant was given C-1 and C-2, being the Grand Jury minutes and a 9 1/4-page handwritten statement signed by the witness, which documents were the subject of the appellate court's opinion in United States v. Rosenberg, supra (N.T. 34, 39-40).
At the conclusion of the direct testimony of this witness at about 11 a.m. on Wednesday, October 2, defense counsel applied for adjournment of the case until the following morning, even though he had had the previous evening to examine these statements and the testimony of this witness at the previous trial (N.T. 73-8). The court adjourned until 2:15 p.m. on October 2 as a result of this request.
Other reports of the FBI (consisting of less than four pages) covering interviews with Meierdiercks were delivered to defense counsel at about 12 noon on October 2 (see Exhibits C-5 to C-7, N.T. 79-91).
The statements of Miss Vossler were given to defense counsel so that they could be examined during a 40-minute recess (N.T. 276-281) and also during the luncheon recess (N.T. 329).
After reviewing the record, the trial judge finds that his actions during the trial were in accordance with the foregoing authorities.
IV. Alleged disqualification of the trial judge for bias or prejudice.
Defendant's attorneys were notified by letter of August 23 that this case would be called for trial on September 30. Long before September 20, there was available to them the knowledge that the trial judge was one of four judges of this court assigned to criminal trials that week, but defendant made no oral or written request for the disqualification of the trial judge until after the case had been marked ready for trial at the call of the list on September 30. For the first time, counsel for defendant stated to the assignment judge on the morning of October 1, 'We thought * * * Judge Van Dusen would not be the proper judge to hear this particular case' (N.T. 4 of Document No. 53).
Congress has clearly provided that an affidavit of 'personal bias or prejudice * * * shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.' 28 U.S.C.A. § 144. No good cause for failure to file such an affidavit on or before September 20 has been shown and there is no apparent reason why the procedure specified by Congress should not have been followed in this case. It might have been most difficult for the assignment judge to find another judge available to hear the case on the morning of Tuesday, October 1, of the last week of that criminal trial period.
Furthermore, none of the alleged reasons for disqualification stated in defendant's briefs constitute 'personal bias or prejudice.'
In view of the complete treatment of this subject by Judge Madden in United States v. Valenti, D.C.N.J.1954, 120 F.Supp. 80, it would be repetitious to discuss it further.
That opinion makes clear that there is no merit in this contention of the defendant. Cf., also, Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S. Ct. 457, 86 L. Ed. 680.
There was sufficient evidence to support the jury's verdict, as explained in the opinion of November 23, 1956.
And Now, January 3, 1958, It Is Ordered that defendant's Motion for New Trial and for the Entry of Judgment of Acquittal and defendant's motion for judgment of acquittal made during the trial, held October 1-7, 1957, are Denied.
Alexander Osinoff, Esq. appeared for the defendant at the time of his arraignment on November 28, 1955.
On May 14, 1956, Stanley B. Singer, Esq. formally filed his written appearance for the defendant and the following documents in the Clerk's file, following that Entry of Appearance until the first day of the trial commencing October 1, 1957, bear his signature:
No. Filed Title of Document
5 5/14/56 Motion for Leave to Take Depositions Under
Rule 15, Federal Rules of Criminal Procedure,
8 5/24/56 Petition for Disclosure of Matter Occurring
Before Grand Jury Under Rule 6(e) of the
Federal Rules of Criminal Procedure and/or
Discovery and Inspection Under Rule 16 of
the Federal Rules of Criminal Procedure
12 6/18/56 Motion for Judgment of Acquittal or Motion
for New Trial
24 11/ 5/56 Affidavit
32 12/ 3/56 Motion (signed jointly with Anthony J. Albert,
33 12/ 3/56 Notice of Appeal
36 1/21/57 Supplemental Motion (signed jointly with
Anthony J. Albert, Esq.)
40 2/14/57 Notice of Appeal
42 3/27/57 Petition to Vacate or Moderate Sentence
45 8/30/57 Motion for the Return of Seized Property and
the Suppression of Evidence (signed jointly
with Edward M. Dangel and Leo E. Sherry,
46 8/30/57 Motion for Inspection and Examination and
Inspection of Statements Made By Certain
Government Witnesses to the Federal Bureau
of Investigation (signed jointly with Edward
M. Dangel, Esq. and Leo E. Sherry, Esq.)
47 8/30/57 Motion for Inspection and Examination of
the Testimony of Certain Government Witnesses
Before the Grand Jury (signed jointly
with Edward M. Dangel, Esq. and Leo E.
48 8/30/57 Motion for Continuance
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