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UNITED STATES v. BASEN

January 22, 1970

UNITED STATES of America
v.
Saul BASEN


John W. Lord, Jr., Chief Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, JR., Chief Judge.

 Before the Court in the above-captioned case is defendant's motion for new trial. Defendant was indicted in March, 1967 for transferring and concealing and aiding and abetting in transferring and concealing property and assets of Karasow Jewelers in violation of 18 U.S.C.A. ยงยง 152 and 2. On September 29, 1969, the defendant was brought to trial before the Honorable John W. Lord, Jr., Chief Judge, and a jury. After presentation of the evidence, the jury, on October 9, 1969, returned a verdict of guilty.

 Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, counsel for defense filed a timely motion for new trial in which he raised two grounds in support of his motion: (1) that the trial judge erred in refusing to grant a mistrial after a series of statements by one of the Government's witnesses which counsel argues necessarily raised an inference that the defendant was involved in another fraudulent bankruptcy and (2) that the defendant was surprised and prejudiced by the fact that the Government's proof varied from its answer to the Supplemental Bill of Particulars which had been submitted to the Government by defense counsel.

 It should be noted at the very outset that the granting of a motion for new trial is a matter within the sound discretion of the trial court. Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); United States v. Lubertazzi, 283 F.2d 152 (3rd Cir. 1960); Petro v. United States, 210 F.2d 49 (6th Cir.), cert. denied, 347 U.S. 978, 74 S. Ct. 790, 98 L. Ed. 1116 (1954). And furthermore, the convicted defendant has the burden of showing that the errors at trial, if any, were prejudicial to him. United States v. Redfield, 197 F. Supp. 559 (D. Nev.), aff'd 295 F.2d 249 (9th Cir. 1961), cert. denied, 369 U.S. 803, 82 S. Ct. 642, 7 L. Ed. 2d 550 (1962); United States v. Segelman, 86 F. Supp. 114 (W.D. Pa. 1949).

 Defendant's first contention is based on certain testimony of a Government witness, Sylvan Scolnick, who, in relevant part, testified as follows:

 
Q. All right. Have you been involved in more than one fraudulent bankruptcy?
 
A. Yes, sir.
 
A. M. Stein & Company, Levack Sales, H. Karasow Jewelers, Interstate Appliance - just many. (N.T. p. 587)

 The witness later testified:

 
Q. When did this business [Karasow Jewelers] go into operation?
 
A. The late summer of '62.
 
Q. You had no warehouse then ...

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