United States v. Michelson
Decision Date | 05 April 1948 |
Docket Number | No. 130,Docket 20818.,130 |
Citation | 165 F.2d 732 |
Parties | UNITED STATES v. MICHELSON. |
Court | U.S. Court of Appeals — Second Circuit |
J. Vincent Keogh, of Brooklyn (Mario Pittoni, of Brooklyn, of counsel), for appellee.
Louis J. Castellano, of Brooklyn, N. Y., for appellant.
Before SWAN, CHASE, and FRANK, Circuit Judges.
The Second Count.
We think that Congress, as it lawfully may, provided that to "offer" a bribe and to "give" a bribe are two distinct crimes even when parts of a single transaction, since the one (to "give") involves an element which the other (to "offer") does not.1 The test, as stated in Morgan v. Devine, 237 U.S. 632, 640, 35 S.Ct. 712, 714, 59 L.Ed. 1153, is whether "separate acts have been committed with the requisite criminal intent. * * *" The present case does not meet that test. Kratter, the principal government witness, testified as follows: On July 17, 1946, in New York City,2 defendant offered him a bribe of $5,000, and he told defendant he would take it.3 Defendant then said that, when he had the money, he would telephone Kratter. On July 26, defendant, on the telephone, told Kratter that he had the money and wanted to meet Kratter to give it to him. On July 29, Kratter by phone, arranged with defendant for a meeting at a room in the St. George Hotel in Brooklyn.4 Kratter went to that room. His own words, as to what then occurred, follow: Defendant's conduct at that meeting in Brooklyn constituted his performance of the agreement of July 17 — an illegal bargain resulting from a previously accepted offer — to give the $5,000 bribe. He did not on that day or at any other time in the Eastern District both offer and give. He merely gave.5
The offer of July 17 cannot sustain the conviction on count 2. For defendant made that offer in New York City in the Southern District, and the defendant was indicted and tried in the Eastern District. Had that offer been specified in the indictment, defendant, thus warned of the improper venue, would have waived the lack of proper venue by going to trial without interposing an objection.6 The same might have been true if, during the trial, defendant had in some manner been put on notice that the government intended to rely on that New York City offer as a crime, for which he was being tried. But here there was nothing so to notify him. Indeed, the trial judge, in his charge, told the jury that the issue was whether defendant gave or offered to give, or both, $5,000 to Kratter on July 29 at the Hotel St. George. We therefore conclude that we must reverse as to the second count.
Alleged Errors as to the First Count.
1. The defendant called three character witnesses who testified that he had an excellent reputation for "honesty, truthfulness and being a law-abiding citizen." On cross-examination, they were asked whether they had heard (a) that in 1927 he had been convicted in a New York court and sentenced to pay a fine of $100 or 30 days in jail, and (b) that in 1920 he had been arrested for receiving stolen goods.
The judge, out of the jury's presence, received the assurance of the government's counsel that defendant had been thus arrested in 1920. The defendant, on the witness stand, had previously admitted the conviction in 1927. The judge, when these witnesses were being questioned, said: In his charge to the jury, the judge said: The questions were of the kind often held proper in examining "character witnesses."7 That being the rule, we see no abuse of discretion in permitting them to be asked here.8 Defendant asserts error in putting the question about the 1920 arrest to a witness who had known defendant only since 1932. We cannot agree, for she might have heard rumors of an arrest which happened before she knew him.
3. On direct examination by his own counsel, defendant testified to his conviction in 1927 on a charge of possessing counterfeit watch-dials, but that he had no other trouble since he had been in the United States. On cross-examination, defendant testified that, in 1930, in an application signed by him for a license for vending second-hand jewelry, he had never been arrested for any offense. Thereupon he was asked whether he had stated in this application that he had been convicted of "counterfeiting trade-marks on watches." His counsel objected on the ground that the conviction had been for "possession of counterfeit." The court said, "Sustained on that ground." Government counsel then asked, "You did not say in that paper that you had been arrested and that you were convicted of that charge?" No objection was made. We find no prejudicial error.
4. Defendant complains that the judge in his charge unfairly interpreted the testimony of a witness, Osterfeld, in a manner prejudicial to defendant. We think the interpretation not unfair. But, even assuming the contrary, there is no reversible error. In the first place, defendant did not object to this part of the charge.9 In the second place, the judge made it plain that, despite his comments on the evidence, the jury were to rely on their own...
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