Griffin v. United States

• Decision Date: 07 February 1924
• Docket Number: 3076.
• Citation: 295 F. 437
• Parties: GRIFFIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

295 F. 437

GRIFFIN et al. v. UNITED STATES.

No. 3076.

United States Court of Appeals, Third Circuit.

February 7, 1924

Henry M. Stevenson, John P. Connelly, James F. Boylan, Edward S Kremp, John F. McEvoy, Harry P. Felger, and Benjamin M Golder, all of Philadelphia, Pa., Charles J. Buchner, of Brooklyn, N.Y., and Todd Daniel, of Philadelphia, Pa., for plaintiffs in error.

George W. Coles, U.S. Atty., and Henry B. Friedman, Asst. U.S Atty., both of Philadelphia, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

Plaintiffs in error, defendants below, were indicted and tried on the charge of conspiring to defraud the United States. Some of them had secured from the government a permit to export intoxicating liquor from the United States to Greece. The method of effecting their conspiracy is alleged to have been to withdraw barrels of whisky from the New Hellam Distillery Company at Hellam, Pa., transport them to Philadelphia, place them in a warehouse in the custody of the delivery department of the United States Customs Bureau, and while there awaiting exportation remove the whisky from the barrels, substitute water therefor, export the barrels of water to Greece, secure clearance papers, report to the officials of the United States that the whisky had been landed in Greece in accordance with the permit, and dispose of the removed whisky for bootlegging purposes.

The case was tried to the court and jury. Smith pleaded guilty and a verdict of not guilty as to Hamilton, Friedrich, and Kane was directed by the trial judge. The jury rendered a verdict of guilty against Griffin, Simon, McTamany, Levey, Kheiralla, Gottesfeld, and Levey, who have brought the case to this court on writ of error, contending that the trial judge erred in his refusal to charge as requested upon reputation for good character and credibility of witnesses, in the admission of testimony, and in refusing to withdraw a juror and grant a new trial because of newspaper reports, published during the trial, of statements made by the Assistant United States Attorney who conducted the trial.

We have considered these alleged errors, but do not think that the action of the learned trial judge in any of them, except the last, was erroneous or requires discussion. On March 21, 1923, the third day of the trial, when the jury returned from recess at noon, counsel for the defense stated to the court that members of the jury had been seen reading newspapers, and that one of the jurors had a postscript edition of the Philadelphia Evening Ledger of that day, containing the following article on the front page:

'Prosecutor Asserts Five Defendants Wanted to Turn State's Evidence-- Refused.

'Five defendants in the plot have offered to turn state's evidence, according to Assistant District Attorney Friedman, who is prosecuting the case before Judge McKeehan. ' These men came to us before the trial opened Monday,' said Mr. Friedman to-day, 'and offered to make a clean breast of their part in the conspiracy, but our evidence against them was so overwhelming that we refused to make any deal.' The five Mr. Friedman said did not include Griffin.'

Counsel thereupon moved for the withdrawal of a juror, which was refused, and an exception noted. The North American on the same day had contained the following item:

'Assistant U.S. District Attorney Friedman, prosecuting the case, held the written confession of three of the defendants, in addition to the two who have pleaded guilty. Dr. George I. Kheiralla, of New York, said to have been one of the most active of the conspirators, Samuel Gottesfeld, and Louis Levey have confessed to their part in the conspiracy. Harold L. Smith and Joe Kleiman pleaded guilty on Monday. In discussing the case yesterday, Mr. Friedman said he is still holding an ace in the hole for the prosecution, in the form of a written confession of three of the principals. He said he did not expect to find it necessary to use this evidence, but that he had it ready.'

Similar statements were published in other newspapers in Philadelphia on other days during the progress of the trial.

It is the right of a defendant accused of crime to have nothing reach the mind of the jury concerning the case except strictly legal...