United States v. Krulewitch

• Decision Date: 01 August 1944
• Docket Number: No. 387.,387.
• Citation: 145 F.2d 76,156 ALR 337
• Parties: UNITED STATES v. KRULEWITCH.
• Court: U.S. Court of Appeals — Second Circuit

156 ALR 337, 145 F.2d 76 (1944)

UNITED STATES v. KRULEWITCH.

No. 387.

Circuit Court of Appeals, Second Circuit.

August 1, 1944.

John E. Mack, of Poughkeepsie, N. Y., and Samuel Rubin, of New York City, for appellant.

Edward C. Wallace, of New York City, and James B. M. McNally, U. S. Atty., of New York City, for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

Krulewitch appeals from a judgment of conviction for transporting a woman in interstate commerce for purposes of prostitution. He raises six points: (1) That the testimony was insufficient to sustain a verdict; (2) that the judge refused to control the conduct upon the stand of the principal witness; (3) that the accused was not allowed to inspect a written statement of that witness, which the prosecution had procured; (4) that a part of the testimony of another witness was incompetent and highly prejudicial; (5) that the judge erred in his charge as to the proper use of that witness's testimony; (6) that the accused did not receive a fair trial. The sixth point is no more than a summary of the preceding points, and we do not find it necessary to discuss it independently; and the fifth point turns out to be moot as will appear. The substance of the testimony, most of which was that of a professional prostitute, named Joyce, was as follows. Shortly after Joyce had made the acquaintance of the accused, he took her to Chicago where he tried to get her to live in a brothel. She refused and came back to New York, where later she and the co-defendant, Sookerman, lived in various apartments where they practiced prostitution; and this was known to the defendant. In October, 1941, the accused suggested to her and Sookerman that they should go to Miami and should there ply their calling. They agreed and the accused took them to Miami with him and installed them in a hotel which he had leased and where they "worked," paying over their earnings to him. Later Joyce became ill and again returned to New York. There is no question as to the sufficiency of the testimony; indeed, the accused says in his brief that if Joyce's testimony "were to be believed * * * there was doubtless evidence from which the jury might find the defendant guilty." True, he continues that her testimony was "inspired by a venomous hatred and jealousy — evidence from a contaminated source which, by every recognized test of credibility, should have been rejected"; but that is plainly a consideration, not to be addressed to us, but to the jury; and we may pass at once to the supposed errors in the conduct of the trial.

The first point which we need discuss is the failure of the judge properly to control Joyce upon the stand. She was undoubtedly an unruly and extremely unstable person, she had been wayward from the outset of her career, and had early served a term in a reformatory. Upon her direct testimony she told a connected enough story which, as we have seen, left nothing to be supplied, if it was believed. Her cross-examination was detailed, long and repetitious: it occupies 75 pages of the printed record. During the course of it she repeatedly broke out into more or less violent retorts and insults to the cross-examiner; at times she refused to answer his questions; at times she declared that she had already answered them. On the whole, however, there is no reason to suppose that the accused lost the benefit of anything that could have been extracted from her by sterner handling than the judge adopted. It is true that he dealt very gently with her, and at no time became peremptory; but we are by no means satisfied that in this he did not show the better judgment in all the circumstances. He was faced with a hysterical woman, probably never well balanced emotionally, and in any event enervated by a life from girlhood of carousing and debauch. Subjected to long and persistent questioning into a past full of conflicting emotions, her low threshold of control was soon overflooded and nothing much could be done to prevent her outbreaks. To put pressure upon such a woman was quite as likely to provoke a complete collapse as it was to bring out whatever truth she might have been concealing. We are disposed to accept his way of guiding her ungoverned moods and caprices; he was on the spot, and certainly it does not appear that more would have been accomplished by the course which the accused now affects to advocate.

This disposes of all the points raised except two, which, as they have persuaded us that the case must be retried, we will state at some length. Joyce had been questioned at her home by an agent of the Federal Bureau of Investigation on December 8, 1941, thirteen months before the indictment was filed; she signed a written statement of five pages which the agent took away with him, and which completely exculpated the accused, saying that she and Sookerman had gone to Miami of their own choice, to "work" there on their own account; that the accused had had nothing whatever to do with their going, although he had gone down later and had seen them; and that the witness had never had any illicit relations with him. During the course of her cross-examination, the accused's counsel, who had apparently learned of this paper, demanded the privilege of inspecting it with a view to cross-examining her upon it, and presumably of putting it in evidence to impeach her. The judge reserved decision, and did not decide the point until the last day of the trial. The prosecution had by then produced the paper for the judge to see, and he had read it; but he refused to allow the accused to see it. It was marked and sealed, and is a part of the record on appeal.

It is one thing to say that an accused shall in advance of trial have inspection of statements of witnesses taken by the prosecution in preparation of its case; it is another to deny him the benefit of so much of such statements as is shown to be inconsistent with the witnesses' testimony on the stand, and would impeach them. If such evidence is to be suppressed after its relevance has been established, it must be because the circumstances of its origin make it a privileged communication. There is indeed authority for saying that a statement made in confidence to a prosecuting officer disclosing a crime is so privileged. Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158; In re Quarles and Butler, 158 U.S. 532, 535, 536, 15 S.Ct. 959, 39 L.Ed. 1080. We may also assume arguendo that the doctrine extends to statements made to an investigating officer. Scher v. United States, 6 Cir., 95 F.2d 64, affirmed 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151. Indeed, for reasons which will appear, we could in the case at bar even assume (although certainly that is doubtful) that a statement procured by such an officer, which — like the statement here in question — declares that no crime has been committed, is also privileged. This is true because in any event it must be a condition upon the continuance of any such privilege that the prosecution — its possessor — shall not adduce testimony touching the subject matter communicated. Indeed, that is a general principle as to all privileged communications. When their possessor chooses to bring into the light the transaction to which the communications relate, he may no longer suppress the communications themselves. The justification for the privilege lies not in the fact of communication, but in the interest of the persons concerned that the subject matter should not become public. The Court of Appeals of the District of Columbia does indeed appear to have decided otherwise in Arnstein v. United States, 54 App.D.C. 199, 296 F. 946, 950; but the point that the prosecution had surrendered its privilege by calling the witness, does not appear to have been brought to the court's attention; and in addition the accused had in any event failed to lay the proper foundation for using the statement.

We hold therefore that the statement was competent to contradict the testimony of Joyce; and, except for what we shall say in a moment, if the accused had offered it in evidence, the error of excluding so much of it as contradicted her testimony — a matter to be determined by the judge — would have been apparent. That the accused did not do; on the contrary, he continued to demand an inspection of it, which was a different matter. It would have been proper to refuse that demand except for the fact that the statement was not competent until Joyce had been questioned as to whether she had not said what it purported to declare, and had been given an opportunity to admit that she had. Conrad v. Griffey, 16 How. 38, 46, 47, 14 L.Ed. 835; The Charles Morgan, 115 U.S. 69, 77, 78, 5 S.Ct. 1172, 29 L.Ed. 316; Chicago, M. & St. P. R. Co. v. Artery, 137 U.S. 507, 519, 11 S. Ct. 129, 34 L.Ed. 747; Bennett v. Hoffman, 2 Cir., 289 F. 797. But since the accused could not ask her these necessary questions in preparation for admission of the statement, it was proper for him to demand an inspection, and the refusal was erroneous.

So far as we can find, the question has never been ruled in a federal court. In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 234, 60 S.Ct. 811, 84 L. Ed. 1129, the court used language which seems to indicate that, even when the witness has used a paper on the stand to refresh his recollection, it is not necessarily erroneous to deny the other side an inspection; and when he has used it only in preparing for his examination, there appears to be authority for holding that no inspection is ever to be allowed. Lennon v. United States, 8 Cir., 20 F.2d 490, 493; Little v. United States, 8 Cir., 93 F.2d 401, 407. But neither of these situations is like that at bar, where the competence of the document appeared without inspection, and inspection was necessary only to fulfill a procedural condition to its admission. In that situation inspection loses its character as a...