Feder v. United States

• Citation: 257 F. 694
• Decision Date: 16 April 1919
• Docket Number: 205.
• Parties: FEDER et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

257 F. 694

FEDER et al. v. UNITED STATES.

No. 205.

United States Court of Appeals, Second Circuit.

April 16, 1919

Robert H. Elder, of New York City (Otho S. Bowling, of New York City, of counsel), for plaintiff in error Polsky.

Max D Steuer, of New York City (Theodore Megaarden, of New York City, of counsel), for plaintiff in error Feder.

Melville J. Franee, U.S. Atty., of New York City, and James D. Bell U.S. Atty., of Brooklyn, N.Y. (Charles J. Buchner, Sp. Asst U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge.

Although plaintiffs in error were brought to trial under two indictments, they were convicted and sentenced under one only.

They were in common form accused of conspiring to defraud the United States by procuring, or endeavoring to procure, the acceptance by the War Department of, and payment by the United States for, a large number of 'barrack bags' which were improperly made, defective, and 'useless to the United States for the purpose for which they were manufactured. ' The overt act relied upon and pleaded consisted in giving to certain representatives of the War Department of the United States money for the purpose of corrupting them and so procuring the acceptance of the aforesaid defective articles of manufacture. Criminal Code (Act March 4, 1909, c. 321) Secs. 37, 39, 35 Stat. 1096 (Comp. St. Secs. 10201, 10203). The defendants were convicted and took out several writs of error.

The record shows that ample evidence was offered by the prosecution tending to show that defendant Feder formed and endeavored to carry out the plan of corruptly influencing those representatives of the United States whose business it was to see that the barrack bags in question were good bags, and thus to procure their acceptance, although they did not comply with the specifications under which they were manufactured. But as the indictment was for conspiracy the crucial question was whether the two defendants had corruptly agreed to endeavor to bring about this result-- no matter what may have been the purposes of the defendant Feder.

The indictment charges these two defendants only; it contains no allegation that they were but part of a larger body of conspirators, nor the usual averment that they conspired and agreed not only with themselves, but with 'other persons to the grand jury unknown. ' Neither is there any evidence that any person or persons were engaged or concerned in or about said conspiracy except Feder and Polsky.

In order to sustain this accusation the prosecutor demanded of defendant Feder (who took the witness stand) whether or not she had made certain admissions or volunteered certain statements to a representative of the United States, which admissions or declarations, if made, strongly tended to prove the existence of the conspiracy. Defendant Feder denied having made some of the suggested and material statements, admissions or declarations, whereupon the prosecution produced a stenographic transcript of the conversations at which the statements in question had been made, and the same was admitted in evidence against both defendants.

The person to whom these statements or admissions had been made was a representative of the Department of Justice, and it is beyond all question from the record that at the time Feder was produced before said representative the conspiracy (assuming that it existed) had ended, and ended in failure. Thereupon counsel for Polsky (who did not testify) requested the court to instruct the jury that--

'None of these statements * * * made by the defendant Feder * * * is any evidence against the defendant Polsky, and they must not consider such statements or any part of them as being evidence against Polsky.'

This request the court denied. At the close of the evidence and after the court's colloquial charge, counsel for Polsky again requested the court to charge the jury that--

'In determining the question of Polsky's guilt the jury cannot consider as evidence against him any statement or statements which tended to implicate him and were made by the defendant Feder as set forth in the stenographic record.' And this request the court refused.

It is true that the established rule of Logan v. United States, 144 U.S. 309, 12 Sup.Ct. 617, 36 L.Ed. 429 (recently reiterated by this court in Erber v. United States, 234 F. 228, 148 C.C.A. 123), was not specifically brought to the attention of the trial judge when these requests were proffered. But that rule, to the effect that only those acts and declarations of a coconspirator are admissible against his fellows 'which are done and made while the conspiracy is pending and in furtherance of its object, ' was plainly violated in a way as plainly prejudicial to Polsky. This conspiracy had come to an end, and when that occurred, 'whether by success or by failure, the admissions of one conspirator by way of narrative of past facts are not admissible in evidence against the others.'

Since defendant Feder was proffered as a witness, whatever was extracted from her on the witness stand was competent, relevant, and material against her; but the refusal to charge that the said statements made out of court were not competent as against Polsky was prejudicial error.

The question remaining is: What disposition must be made of these writs under the circumstances shown? If defendant Feder had been tried alone, the record would have...