Morei v. United States

• Decision Date: 14 May 1942
• Docket Number: 8939,No. 8941.,No. 8938,8938,8941.
• Citation: 127 F.2d 827
• Parties: MOREI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

127 F.2d 827 (1942)

MOREI et al. v. UNITED STATES.

Nos. 8938, 8939, No. 8941.

Circuit Court of Appeals, Sixth Circuit.

May 14, 1942.

Marc J. Wolpaw, of Cleveland, Ohio, (Ralph R. Levenson, of Cleveland, Ohio, on the brief), for appellants Morei and Evans.

Fred S. Day, of Cleveland, Ohio, for appellant Platt.

Roy C. Scott, of Cleveland, Ohio (Francis B. Kavanagh, of Cleveland, Ohio, on the brief), for appellee.

Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

Louis P. Morei, Joseph Evans, and Dr. Matthew G. Platt were jointly indicted with Tony Russo on charges of violation of Sec. 2553, 26 U.S.C.A. Int.Rev.Code, providing that it shall be unlawful for any person to purchase, sell, dispose of, or distribute certain drugs, including heroin. The first count of the indictment charged illegal purchase; the second, illegal sale to Paul Beach, an informer; the third, unlawful conspiracy to sell and to purchase the drug. On trial, defendants were convicted. Defendants Morei, Evans, and Platt appealed, claiming error in the court's charge to the jury; that their convictions were unsupported by evidence; that Morei was entrapped into committing the crime; and that evidence against Dr. Platt was improperly admitted as against Morei and Evans, resulting in prejudicial error to them. Our determination of the appeals is mainly concerned with the denial of motions, made by defendants at the close of the proofs, that the trial court direct verdicts of not guilty.

The Government claims that an informer, named Beach, was sent to buy narcotics from Dr. Platt; that the doctor gave the informer the name of defendant Morei in Cleveland as the man who could get what he wanted; that Morei, aided by his chauffeur, Evans, procured the drug; and that the three defendants were guilty as principals in committing the offense of purchasing and selling narcotics.

At the outset, we consider the claim of error, based on refusal to grant a new trial on the ground of newly discovered evidence. It appears that before the trial, an investigation of Beach, the chief witness for the Government, was undertaken by counsel for defendants, who made numerous inquiries, but could find no record of arrests, or anything derogatory to his character. About two weeks after the trial, however, a Mr. Barber, in the wholesale meat business at Zanesville, Ohio, wrote a letter to Mr. Day, counsel for one of the defendants at Cleveland, enclosing a Federal Bureau of Investigation finger print record of Beach, which he had received from the Chief of Police of Chillicothe. In the letter, Barber also informed Mr. Day that the Probate Judge of Ross County, Ohio, should be interviewed with regard to the informer. The copy of the finger print record, signed by John Edgar Hoover, the Director of the Federal Bureau of Investigation, and which was made part of the motion for a new trial, showed that Beach had a record of 15 arrests for misdemeanors and crimes, including "assault (rape)," burglary, larceny, car theft, and grand larceny, in several states, over a period of more than 20 years; and that he had served several prison sentences for various felonies. Following up the letter from Barber, Mr. Day interviewed Judge Marshall Fenton of the Probate Court of Ross County, with the result that the judge gave an affidavit stating that the place of business which Beach conducted in that county had a general reputation for being a "hang-out" for law breakers; that Beach had been engaged in trying to keep juvenile, as well as adult, law offenders beyond the reach of the law, and had a very bad reputation among the law abiding citizens of the community. All of these matters were set forth in the motion for a new trial. According to Beach's testimony, he first worked for the Government in 1923, and has been so employed, "off and on," since. However, it would appear from the finger print record that he was serving a sentence in the Missouri State Penitentiary for grand larceny in 1923. He was paid $25.00 by the Government narcotic agents for bringing about the arrest of Dr. Platt.

In denying the motion for a new trial, the District Court held that there was not sufficient showing of diligence to discover the evidence, before trial; that counsel for defendants could have asked Beach on cross-examination whether he had ever been arrested and convicted; and that the court was not satisfied that if the evidence in question had been produced at the trial, the verdict would have been different. Our conclusions make it unnecessary to dispose of the question raised, but the showing made on the motion, however, illuminates other phases of the case, hereinafter discussed.

Dr. Platt, a physician of 28 years' experience, is a resident of Newark, Ohio. From the time that he was a small boy, he has been a devotee of horse racing. His father "did nothing but race horses" — his interests were to "breed them, train them, race them, make books." He was connected with the Thorobred Horse Racing Association. About a month before his arrest, Dr. Platt had pleaded guilty to fraudulent issuance of narcotic prescriptions in 1938, and was placed on probation. What the exact nature of the offense was, does not clearly appear from the record. Col. Yarrick, a witness on his behalf, who had served several terms as prosecuting attorney, and an assistant attorney general of Ohio, and who was sworn as a character witness on behalf of Dr. Platt, testified that his associate in the practice of law, who had something to do with the case after the plea of guilty, regarded it, "as it was thought by every doctor, as something technical"; and the sentence imposed would indicate the offense must have been of a technical nature, or that there were considerably mitigating circumstances. Whatever the facts, a little more than a month after Dr. Platt pleaded guilty and had been placed on probation, Government narcotic agents evolved a plan to have informers call upon him in order to try to procure heroin, using as a bait, his well-known interest in horses and horse racing. George Gray, a Government agent in Columbus, Ohio, got in touch with Paul Beach, the informer. Gray and Beach then drove from Columbus to Newark, where Gray introduced Beach to one Sargent, a resident of Newark, and instructed them to go to Dr. Platt's office and attempt to purchase heroin from him. Sargent was a man well known to Dr. Platt, who had attended many race meetings with Sargent and his father. Sargent's mother had been a nurse who had been formerly employed by Dr. Platt; and the doctor had also been the physician for Sargent's wife, and had assisted at the birth of Sargent's child. It appears from the evidence that Sargent went into the doctor's office, while Beach remained outside. After a short time, Sargent came out with the doctor. Beach, the informer, testified that he then told the doctor that he wanted heroin to "soup" race horses; that he gave the doctor the names of certain horses who were to run in races, in order that the doctor could bet on them; that the heroin was to be used to stimulate them and to win the races in this manner. It is claimed that Dr. Platt said that he did not have any heroin, but that he did give Beach the name of defendant Morei, and his address in Cleveland, and told him to see Morei and tell him that the doctor had sent him, and that "he will take care of you." It appears that Dr. Platt had formerly lived in Cleveland, where he became a friend of Morei. Denying that he had made the statement attributed to him, Dr. Platt, during the giving of his evidence, attempted to testify what his conversation with Sargent had been, and repudiated Beach's testimony, stating that heroin had never been mentioned. An offer of testimony by Dr. Platt to the effect that Sargent had merely discussed where they could lay bets on horse races, was rejected by the court as inadmissible on the ground that testimony of any conversation between Dr. Platt and Sargent was hearsay. It may be observed that the failure of the Government to call Sargent, a most important witness in view of the disputed testimony, was unexplained, and, under the circumstances, every inference and conclusion must weigh against the contention of the Government on this phase of the case.

Dr. Platt is charged as a principal under the statute that makes him so answerable, if he "directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission." These are familiar words in criminal law, and, as Judge Learned Hand observed, in United States v. Peoni, 2 Cir., 100 F.2d 401, the substance of the formula dates from the beginning of the 14th Century, and is discussed in Bracton, Coke, Hale, and Blackstone. Although the charging of those guilty of any of the offenses, as principals, is found only in recent statutes, nevertheless, in order to ascertain whether one be guilty as principal, by reason of his guilt of any of the enumerated offenses, recourse must be had to the common law which defines them.

While the distinctions of guilt between principals, aiders and abettors, and accessories, have been abolished by statute, and all are charged as principals, and are equally guilty, a conviction under this statute must be sustained, in this case, on the ground that the accused was an aider or abettor, known formerly as a principal in the second degree; or on the ground that he was an accessory. We are not here concerned with accessories after the fact. But unless one directly commits an offense, or is an aider and abettor, or an accessory, as defined by law, he is not guilty. It is said that where the distinction between accessories before the fact and principals is abrogated by statute so that participants in the crime, who would be accessories before the fact, are called and punished as principals, it is still necessary to...