United States v. Perlstein, 7794.

• Decision Date: 20 February 1942
• Docket Number: No. 7794.,7794.
• Parties: UNITED STATES v. PERLSTEIN et al.
• Court: U.S. Court of Appeals — Third Circuit

126 F.2d 789 (1942)

UNITED STATES v. PERLSTEIN et al.

No. 7794.

Circuit Court of Appeals, Third Circuit.

Argued October 23, 1941.

Reargued January 5, 1942.

Writ of Certiorari Denied May 4, 1942.

Decided February 20, 1942.

Rehearing Denied March 16, 1942.

Paul M. Salsburg, of Atlantic City, N. J., for appellants.

Joseph W. Burns, of Washington, D. C. (Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee.

Before BIGGS, CLARK, JONES, and GOODRICH, Circuit Judges and KIRKPATRICK, District Judge.

Writ of Certiorari Denied May 4, 1942. See 62 S.Ct. 1106, 86 L.Ed. ____.

BIGGS, Circuit Judge.

The primary question with which we are concerned in the appeal at bar is the interpretation of Sections 37 and 135 of the Criminal Code, 18 U.S.C.A. §§ 88 and 241, and of the decision of the Supreme Court in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419. There are indeed other questions presented by the appeal but these are of lesser importance. The defendants suffered a former conviction and judgment of sentence upon the same indictment and upon the same count as are here presented for our consideration. We reversed the judgment for the reasons stated in 120 F.2d at page 276, et seq. and ordered a new trial. That trial has now been had and the defendants again have been convicted and sentenced. They have appealed for the second time.

In order that the issues of law may be clear it is necessary to refer rather fully to the first count of the indictment and to give an account of some of the evidence presented at the trial.

The first count of the indictment (the only count with which we are concerned) charges that from the 15th day of October, 1937 and continuously up to and including the date of the filing of the indictment, within the jurisdiction of the District Court of the United States for the District of New Jersey, the appellants and certain other persons, viz., Herbert R. Short and Michael Aluise, conspired corruptly to endeavor to influence, intimidate and impede witnesses in the District Court of the United States for the District of New Jersey and its grand jury and corruptly to obstruct and to endeavor to obstruct "the due administration of justice therein" in violation of Section 135 of the Criminal Code.

The count charges that from November 1, 1939 until the filing of the indictment Special Investigators of the Alcohol Tax Unit of the Treasury Department of the United States were conducting an investigation to determine whether there had been any violation of the Internal Revenue Laws of the United States in the District of New Jersey and if any persons were guilty of violating these laws; whether during 1937 Short and Aluise had set up an unregistered still in the Garbage Disposal Plant of Atlantic City and whether Short and Aluise were engaged as distillers. The count goes on to allege that during the course of this investigation the investigators questioned John A. Graham, Edward S. Graham, Henry S. Speed and other persons with the intention of causing them to be witnesses for the United States before United States commissioners and before the Grand Jury of the District of New Jersey. The count charges that the grand jury also was inquiring whether there had been any violations of the Internal Revenue Laws of the United States and whether Short and Aluise had been running an unregistered still in the Atlantic City Garbage Disposal Plant, in order that it might return true bills, if the circumstances warranted such action. The count also states that in January and February, 1940 complaints were filed against Short before United States commissioners of the District of New Jersey charging that Short possessed an unregistered still and untaxpaid alcohol at the Garbage Disposal Plant.

In another paragraph of the first count of the indictment it is alleged that Short, Aluise and the appellants as a part of the conspiracy, knowing and expecting that certain persons including John A. Graham were about to be called as witnesses before the United States commissioners and before the grand jury to testify in regard to the matters under inquiry ", * * * would and did corruptly endeavor to influence, intimidate and impede said witnesses by corrupt promises, offers of inducement, and by other means, and would and did counsel, advise and suggest to said witnesses that they testify falsely before the Grand Jury with relation to the facts of the matter under inquiry * * * and would and did advise and suggest to said witnesses that they should not identify * * * Herbert R. Short and Michael Aluise before the Grand Jury as the persons who had in their possession and custody and under their control said still set up in the * * * Garbage Disposal Plant * * * and falsely to deny before the Grand Jury that * * Herbert R. Short and Michael Aluise had any connection with said still."

The count goes on to charge that Short, Aluise and the appellants as part of the conspiracy, well knowing that the grand jury had under inquiry the matters which we have referred to "* * * did corruptly influence, obstruct, impede and endeavor to influence, obstruct and impede the due administration of justice in the said District Court of the United States for the said District of New Jersey by hindering said Grand Jury in ascertaining the true facts and presenting a false state of facts * * * for the purpose of preventing said Grand Jury from obtaining evidence upon which an indictment might be returned against the said defendants Herbert R. Short and Michael Aluise for violation of the internal revenue laws as aforesaid."

The count sets out seven overt acts. Since they are intimately connected with the questions of law before us, we set them out verbatim. They are as follows:

"1. That on or about October 15, 1937, the said defendant Benjamin M. Perlstein had a conversation with one John A. Graham in Atlantic City, New Jersey.

"2. That on or about February 7, 1939, the said defendant Benjamin M. Perlstein had a conversation with said John A. Graham.

"3. That on or about February 21, 1940, the said defendants Michael Aluise and Harry Paul met and had a conversation with said Henry S. Speed in Atlantic City, New Jersey.

"4. That on or about February 24, 1940, the said defendants Herbert R. Short, Michael Aluise, Benjamin M. Perlstein and Harry Paul met and had a conversation with said John A. Graham in Atlantic City, New Jersey.

"5. That on or about February 25, 1940, the said defendants Michael Aluise, Benjamin M. Perlstein and Harry Paul met and had a conversation in Atlantic City, New Jersey.

"6. That on or about March 26, 1940, the said defendant Harry Paul had a conversation with said Henry S. Speed and John A. Graham.

"7. That on or about March 26, 1940, the said defendants Herbert R. Short and Harry Paul met and had a conversation in Camden, New Jersey."

The indictment was returned by the grand jury upon April 16, 1940. The evidence showed that on October 13, 1937, officers of the New Jersey Department of Alcohol Beverage Control found an unregistered still in operation at the Atlantic City Garbage Disposal Plant, seized it and arrested one Joseph Myers, who was on the premises. A state warrant was thereupon sworn out for the arrest of John A. Graham, the tenant of the Garbage Disposal Plant, who surrendered on October 15, 1937. Both of the appellants who were members of the bar of New Jersey took an active part in the conspiracy. They contended that their activities were those of attorneys engaged in guarding their clients' interests, Perlstein representing John A. Graham, Paul representing Aluise. The evidence presented, however, was such as to enable the jury to draw the conclusion that the appellants and their co-conspirators endeavored to prevent law enforcement agencies of the United States from investigating the operation of the still, the persons who were engaged in that operation and the profits of the enterprise. There was a conspiracy to hide these things and if the evidence be believed, there is no doubt but that the appellants played their parts in it. It is not too much to say that Paul took a very large part in the attempts which were made to keep John A. Graham from disclosing what he knew to the Special Investigators, the United States commissioners and the grand jury. The record shows that Perlstein took a smaller part in the conspiracy, but there was a well defined organization devoted to the stifling of evidence and the acts of one conspirator are admissible therefore against another. If the indictment be held valid, Perlstein must bear the onus of many of the acts and declarations of Paul and Short. See 15 Corpus Juris Secundum, § 74, p. 1105; Pomerantz v. United States, 3 Cir., 51 F.2d 911; United States v. Bergdoll, D.C., 272 F. 498 and United States v. Stilson, D.C., 254 F. 120.

In general, it must be said that the evidence adduced follows and proves the allegations of the first count of the indictment. The point which we wish to emphasize is this. The conspiracy, which was one to suppress evidence and to keep persons who were familiar with the operation of the still from disclosing what they knew to any investigating agency or body whether of the State of New Jersey or of the United States, was entered into over two years before any proceeding was pending in the District Court of New Jersey. The first two overt acts set forth in the first count had taken place prior to the beginning of the investigation by the Special Investigators of the Alcohol Tax Unit who commenced their work on November 10, 1939. The original complaint to a United States commissioner was filed on January 17, 1940. The Grand Jury of the District of New Jersey began its investigations in the early part of January, 1940. But the last five overt acts set forth in the first count followed in point of time the filing of the complaints to the United States commissioners and the...