(N.T. 7-2). Counsel for Morris asked that the instruction not be given at that time but indicated that she would request such an instruction at the close of trial. (N.T. 7-3). Counsel for Morris did not ask that this instruction be given.
The case against Morris turned on the relative credibility of Morris and of Daniel and Joel Lipschultz. The Lipschultzes testified that they gave lists of drawings to Morris and received drawings in return at $5.00 per copy over the conspiracy time period. The drawing request rapidly accelerated to 500 to 600 per week. Morris filled 15 to 20 percent of their requests (N.T. 6-160-61) and they paid Morris approximately $2,000.00 per month over a substantial period of time during the conspiracy. The indictment alleged only five monthly payments to Morris of $2,000.00 each, spread over the period between January of 1981 and February of 1982. Subsequent to the Lipschultz testimony, I granted Morris an acquittal as to the conspiracy charge of the indictment and therefore the evidence from the Lipschultzes as to payments in 1979 and in 1980 in retrospect, under the defense theory, also should not have been admitted. However, I instructed the jury that Morris was not charged as a conspirator, (N.T. 14-147), and that she was charged only with five separate incidents in separate months of receiving $2,000.00 in exchange for the drawings. I explained: "She denies that she did that and that is a very clear factual decision for you to make. Do you accept the Lipschultz testimony or the Morris testimony? The burden of proof is on the government." (N.T. 14-167; see also N.T. 14-132). "The defendants say . . . that it is just as likely that Lipschultz was pocketing the money and pointing the finger at other persons. This is your function: to determine which of those contentions is correct, keeping in mind that for the government to sustain a conviction it must prove its contentions beyond a reasonable doubt." (N.T. 14-171). I recommended to the jury that it evaluate the case against Morris first, at the very start of their deliberations, before they reached any of the other evidence in the case. (N.T. 14-180). I told the jury to focus on the credibility of the Lipschultz version as opposed to the Morris explanation. I also stressed that the jury's job was to compartmentalize the evidence as to each defendant. (N.T. 14-141). The jury accepted the Lipschultz testimony, and there was more than an ample basis for its conclusion. In this fact situation, the admission of testimony as to activities by Morris in 1978, if it was error at all, was harmless.
For all of the above reasons, defendant Morris' motions for post-verdict relief will be denied.
An appropriate order will be entered denying post-verdict relief as to all defendants.
AND NOW, this 13 day of February, 1984, IT IS ORDERED that:
1. Defendant Sidney Perkins' Motions for a New Trial, and for Arrest of Judgment as to Count 2 or in the Alternative for Judgment of Acquittal as to Count 2, are DENIED.
2. Defendant Bernard Osser's Motion for Post-Verdict Relief is DENIED.
3. Defendant Rose Morris' Motion for a New Trial is DENIED.
4.The defendants are directed to appear for sentencing on Monday, March 12, 1984, at 3 P.M. in Courtroom 3B, United States Courthouse, Philadelphia, Pennsylvania.