assigned as error in support of the motion are as follows:
1. In refusing defendants' motion for suppression of evidence.
A motion, pursuant to Rule 41(e), Fed.R.Crim.P., presented by Sigal, Rabinovitz, and Granoff to suppress evidence seized on November 20, 1961, by virtue of a search warrant issued for Whitey's Restaurant was denied after hearing. See opinion reported in United States v. $ 1,058.00 In United States Currency, 210 F.Supp. 45 (W.D.Pa.1962). An appeal is pending.
No motion pursuant to Rule 41(e) was made prior to trial to suppress the evidence seized on November 21, 1961, by virtue of a search warrant issued for 1808 Locust Street. All defendants had ample time to make this motion prior to trial as required by the Rule. Nonetheless, the court entertained the motion to suppress the seized evidence made during the trial and denied it when upon examination it appeared that a proper search warrant was issued upon an affidavit showing probable cause. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; United States v. $ 1,058.00 In United States Currency, supra.
2. In failing to grant defendants' motion for judgment of acquittal.
This motion was denied for the reasons set forth herein under the heading Motion for Judgment of Acquittal.
3. In failing to grant a mistrial because of remarks made by the United States Attorney.
This reason is without merit. The remarks made in summation, which might be interpreted as prejudicial if taken out of context, were made in reply to, if not provoked by, argument made on behalf of defendants. The motions, made at the close of the Government's argument, to withdraw a juror because of improper remarks were considered and denied at that time. We think they were properly denied. Cf. United States v. Sober, 281 F.2d 244 (3d Cir. 1960).
4. In its numerous rulings on the evidence with reference to admission of certain exhibits and restricting cross-examination.
The objections to evidence and admission of exhibits were fully argued during the trial and the reasons for the rulings will appear in the transcript. No alleged error which would require a new trial was particularized at oral argument with reference to any of those rulings. During the trial the jury was given limiting instructions as to certain exhibits; and, in the charge, as to declarations and acts of one defendant made in the absence of other defendants. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 366-367, 83 S. Ct. 448, 9 L. Ed. 2d 357. Of course, where, as here, there was independent evidence that the defendants were engaged in a 'concert of action', the declarations and acts of one defendant are admissible against the others when said or done in furtherance of the enterprise. Fuentes v. United States, 283 F.2d 537, 539 (9th Cir. 1960); United States v. Olweiss, 138 F.2d 798 (2d Cir. 1943); United States v. Fox, 95 F.Supp. 315 (E.D.Pa.1951). Thus, Sigal's oral declarations made in the presence of Rabinovitz could have been used by the jury against Rabinovitz, and Rabinovitz's excise tax return (Ex. 13) and his receipt of slips and wagered money during November could have been used as evidence against Sigal in connection with the numbers operation for that month at Whitey's and at 1808 Locust Street. No exceptions were taken to the charge in this respect.
At oral argument no complaint was made that the cross-examination of any Government witness was unduly restricted except as to Agent Robert J. Madden. The restrictions there imposed were clearly justified as being beyond the scope of the direct examination,
as having no relevant or material bearing on the facts of the case, and as not being within the purview of the Jencks Act, 18 U.S.C.A. § 3500.
An appropriate order will be entered.
ORDER OF COURT
And now, to-wit, this 9th day of April, 1963, after oral argument and upon due consideration, It Is Ordered that the defendants' motion for a new trial and judgment of acquittal be and the same hereby is denied.
The United States Attorney is directed to produce the defendants, Meyer Sigal and Abe Rabinovitz, for sentencing on Monday, April 22, 1963, at 10:00 A.M.