committed one crime is not proof that he has committed the crime for which he is now on trial. However, in the instant case, this Court is not convinced that the above-quoted colloquy implicated, or even tended to implicate, the defendant in a prior fraudulent bankruptcy. Defense counsel argued at side-bar and in his brief that this testimony "inescapably" led to and made "crystal clear" the fact that defendant was involved in the fraudulent Interstate Appliance bankruptcy. The Court does not find this to be the case; but rather finds that the statement was made merely as a reference to time. Initially this witness dated the renting of the warehouse in relation to an event, the Interstate Appliance bankruptcy, rather than the year, 1961. What is clearly demonstrated by these statements is that the defendant rented the warehouse on Hancock Street in 1961 which was in fact prior to the formation of the Karasow bankruptcy scheme. This is a far cry from an inference, which it is argued is the necessary inference, that since the warehouse was rented prior to the Karasow bankruptcy and around the time that the witness was involved in another fraudulent bankruptcy scheme that the defendant was also "tied-up" with that prior bankruptcy. We find no such inference could logically be drawn. This is particularly true in light of the testimony which was given prior to the disclosure that the defendant rented the warehouse, testimony which directly connected the use of the Hancock Street warehouse not with the Interstate Appliance fraud but rather with the Karasow bankruptcy, the bankruptcy fraud for which the defendant was presently being tried. It should be noted that there is no corresponding statement that the Hancock Street warehouse was ever used in the Interstate bankruptcy.
This Court's position is substantiated by the language used by the witness. The witness stated that the warehouse was rented "during or after or directly after the Interstate Appliance bankruptcy." It could have been rented during any one of these three time periods. Since it would indeed make little sense to rent a warehouse for use in a bankruptcy scheme either "after or directly after" the scheme was over - which is the plain meaning of two of the three time periods which the witness testified to - clearly this reference to the Interstate Appliance fraud was one of time. It was not some veiled allusion to the fact that the warehouse, and therefore the defendant who rented it, was also connected with that prior bankruptcy.
Furthermore, after the Court informed counsel of its decision not to grant the requested mistrial, it volunteered to caution the jury that no inference should be drawn from the last statements of the witness that the defendant was in any way connected with any previous fraudulent bankruptcies; and that in a criminal trial it was immaterial and incompetent to consider anything of that nature in determining the defendant's innocence or guilt in the pending case. Counsel for defense refused the proffered instruction and stated on the record that "I am willing to stand on my objection." (N.T. p. 602). This, of course, precluded the Court from making explicit what it had already expressed to counsel as the reason for its ruling, namely that the plain meaning of the statements was that the defendant rented the warehouse around the time that the witness was involved in another fraudulent scheme but that there was absolutely nothing from which they should infer that this defendant had anything to do with that scheme.
The verdict of guilty was reached by a jury after nine days of testimony during which time they were presented with a plethora of evidence, including the inculpating testimony of five accomplices, from which they could well conclude that the defendant had been a willing partner in this fraudulent scheme. For the above stated reasons this Court does not feel that the interests of justice would be served by granting the defendant a new trial on the basis of the quoted colloquy. See Evenson v. United States, 316 F.2d 94, 96 (8th Cir. 1963).
Defendant's second ground in support of his motion for new trial is readily disposed of. Defendant claims to have been surprised and prejudiced by a variance between the information supplied in the Supplemental Bill of Particulars and the Government's proof at trial. More specifically counsel argues that since the testimony of Herbert Karasow, as it related to the delivery of certain fixtures to the store by the defendant, varied from this information in the Supplemental Bill of Particulars, it should have been stricken from the record by the trial judge, as requested by defense counsel.
The answer to the original Bill of Particulars stated that the defendant did not transfer or conceal any property himself, but rather that he furnished fixtures and cash to outfit the store, knowing that it was part of a fraudulent scheme. The defendant submitted a Supplemental Bill of Particulars in which he asked for, among other things, the particular fixtures which the Government alleges were supplied by the defendant, the dates they were supplied, where they were delivered, by whom, and who received them. The Government answered these questions by stating that the fixtures involved were five showcases, a quantity of rug, and a fire extinguisher and that the defendant, Jack Secouler and Jack Frank delivered these fixtures to Sylvan Scolnick and Herbert Karasow in or about the month of July, 1969 at the Karasow store. The proof at trial was that the defendant, with two helpers (Karasow's testimony at p. 134) or the defendant with Jack Secouler and two helpers (Secouler's testimony at p. 362) delivered the fixtures. At the trial (N.T. p. 134) and in his brief in opposition to the motion for new trial (p. 6), counsel for the Government admits there are some inconsistencies but asserts that the variance is immaterial and in no way prejudiced the defendant. On the other hand, the defendant claims he was surprised and prejudiced because there is no mention in the Supplemental Bill of Particulars of two workers aiding the defendant in delivering these fixtures. Counsel argues that had he known this information he might have been able to locate the "helpers" and that they might have been able to rebut the testimony of Herbert Karasow and/or Jack Secouler.
Rule 7(f) of the Federal Rules of Criminal Procedure authorizes the defendant to seek a Bill of Particulars in order to obtain the details of the charge against him. It is clear that the function of the Bill is to enable counsel to adequately prepare for trial. United States v. Glaze, 313 F.2d 757 (2nd Cir. 1963). It is also clear that, as a general rule, a variance between the pleading and the proof may serve as a basis for a new trial. However, it is not every variance which results or should result in a new trial. In order for the variance to warrant a new trial the substantial rights of the defendant must have been affected. United States v. Haskins, 345 F.2d 111 (6th Cir. 1965); United States v. Glaze, supra. In this vein it should be noted that Rule 52(a) of the Federal Rules of Criminal Procedure specifically states "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." (emphasis added). This Court finds that while there was a variance in the instant case it was insignificant and no prejudice resulted from it and therefore that the variance was harmless within the meaning of Rule 52(a).
Testimony at the trial related that the two workers in question were merely casual laborers who had been picked up off the street for a day's pay. Neither Karasow nor Secouler ever knew their names or addresses nor could they even remember with certainty their races. It would have been virtually impossible for counsel to locate them almost seven years after the event. Moreover, the Government did not put these men on the stand and the testimony of their hire in no way added to the weight of the Government's evidence. It is clear that the variance was in no way prejudicial to the rights of the defendant.
And now, to wit, this 22nd day of January, A.D. 1970, it is ordered that defendant's motion for new trial be and the same is hereby denied.
And it is so ordered.
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