United States v. Mishkin, 337

Citation317 F.2d 634
Decision Date20 May 1963
Docket NumberNo. 337,Docket 27900.,337
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edward MISHKIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Maurice Edelbaum, New York City, for appellant.

Thomas F. Shea, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Robert J. Geniesse, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before CLARK, SMITH, and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Defendant appeals from a judgment of conviction for conspiracy1 to import obscene matter into the United States,2 entered upon the verdict of a jury. Appellant concedes that the books in question were obscene, but contests the sufficiency and propriety of the evidence of his knowing participation in the conspiracy to import them. We affirm the judgment of conviction.

The Government's principal witness was the defendant John Stamp, a waiter on the Queen Mary, who pleaded guilty prior to the trial. Stamp testified that one John Monk, a fellow waiter, introduced him to two persons in Southampton, England, who, after assurances by Monk that Stamp was "all right", asked Stamp to take some books to New York City to a person named "Eddie."3 Monk later delivered a package to Stamp aboard the ship, and told him not to take the package directly to "Eddie" but to deposit it in a public locker in a designated subway station in New York City. Stamp was then to take the locker key to a certain book store near Times Square, to ask there for "Eddie", and to give "Eddie" the key, telling him it was "a present from the boys in England, and John would see him next trip."

Stamp opened the package when the Queen Mary docked in New York and found that it contained twelve copies of an obscene book. He was arrested at the pier when he attempted to smuggle in the package. After brief interrogation, Stamp disclosed the details of the plan and agreed to cooperate with customs officials by carrying on as he had been instructed to do but under the surveillance of customs inspectors. The following morning Stamp deposited the package in a subway locker in accordance with his instructions and then proceeded to the book store where he inquired for "Eddie". The clerk of whom he inquired shouted "Eddie" several times toward the back of the store. Appellant Mishkin appeared. Stamp said to him, "I have a key here for you, a present from the boys in England. John Monk will see you next trip." Appellant took the key and answered "okay" or "all right". Stamp then left the store. Appellant showed no surprise at Stamp's remarks or at his handing him the key. Stamp did not tell appellant the location of the locker. There was no indication of its origin on the key itself, other than the number T184.4

Approximately three hours later defendant William Pratt5 came to the locker, which was under the surveillance of customs inspectors, opened it with a key, and removed the package. Pratt was arrested shortly after leaving the subway station. A notation of appellant's unpublished home telephone number was found in Pratt's wallet at the time of his arrest, together with a note to call "Eddie or Frank" at the book store, and the telephone number of the store.

Appellant's first contention is that Stamp's testimony regarding events following his arrest was inadmissible. He cites the familiar principles that arrest terminates a conspirator's participation in a conspiracy, and that declarations of a conspirator made after the conspiracy is ended do not bind co-conspirators. See, e. g., Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). But these principles are wholly inapplicable to the present case. Hearsay statements made after a conspirator's arrest are inadmissible not because they were made after the arrest, but because they are hearsay to which the usual exception to the hearsay rule of statements by co-conspirators in furtherance of the conspiracy can no longer apply. Lutwak v. United States, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953). In the present case, Stamp's testimony as to the period after his arrest related solely to his own acts and to one conversation with the defendant.6 This testimony, which was subject to cross-examination, was not hearsay, and was clearly admissible. See United States v. Cohen, 197 F.2d 26, 29 (3d Cir., 1952).

Appellant next contends that Stamp's testimony as to the arrangements made in England was inadmissible hearsay. But, since Stamp's testimony regarding the events following his arrest sufficiently connected Mishkin to the conspiracy, the earlier declarations of his co-conspirators were admissible against him under the familiar principle that declarations made by one conspirator in furtherance of the conspiracy are admissible against all co-conspirators. See, e. g., United States v. Lev, 276 F.2d 605, 609 (2d Cir.), cert. denied 363 U.S. 812, 80 S.Ct. 1248, 4 L.Ed.2d 1153 (1960).

But this principle, appellant next argues, does not apply to the notations found on Pratt's person after his arrest, since the Government did not establish the time when the notations were made, and therefore did not establish that they were made in furtherance of the conspiracy. Here appellant overlooks the essential point that for the purpose for which they were admitted, viz., the connection of Pratt with Mishkin, the notations were not hearsay. They were admitted not to prove Mishkin's telephone number and connection with the bookstore, but as part of the proof that Pratt had received the key to the subway locker from Mishkin. See VI Wigmore, Evidence § 1788 (3d Ed. 1940).

Appellant argues that even if all the evidence was properly admitted, it was insufficient to sustain the conviction because Mishkin's knowledge of the obscene character of the books was not proved. As scienter is a necessary element of the substantive crime of importing obscene matter, 18 U.S.C. § 1462; cf. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), it is also a necessary element for conviction of conspiracy to commit the substantive offense. Cf. United States v. Massiah, 307 F.2d 62 (2d Cir., 1962). But in proving scienter, "eyewitness testimony of a bookseller's perusal of a book" is unnecessary. "The circumstances may warrant the inference that he was aware of what a book contained, despite his denial." Smith v. California, supra, 361 U. S. at 154, 80 S.Ct. at 219 (1959). See also Kahm v. United States, 300 F.2d 78, 86-87 (...

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