Reiss v. United States, 6095-6098.

• Decision Date: 01 November 1963
• Docket Number: No. 6095-6098.,6095-6098.
• Parties: Ernest REISS, Defendant, Appellant, v. UNITED STATES of America, Appellee. JOADA REALTY CORPORATION, Defendant, Appellant, v. UNITED STATES of America, Appellee. William M. JACOBS, Defendant, Appellant, v. UNITED STATES of America, Appellee. Fred B. DOLE, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

324 F.2d 680 (1963)

Ernest REISS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

JOADA REALTY CORPORATION, Defendant, Appellant, v. UNITED STATES of America, Appellee.

William M. JACOBS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Fred B. DOLE, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6095-6098.

United States Court of Appeals First Circuit.

Heard September 23, 1963.

Decided November 1, 1963.

Rehearings Denied December 3, 1963.

Walter Powers, Jr., Boston, Mass., with whom Walter Powers and Stephen A. Hopkins, Boston, Mass., were on brief, for appellants in Nos. 6095 and 6096.

Abraham S. Goldstein, New Haven, Conn., with whom Francis J. Monahan, Boston, Mass., and Barbara A. Black, New Haven, Conn., were on brief, for appellant in No. 6097.

George W. Gold, Boston, Mass., for appellant in No. 6098.

Paul A. M. Hunt, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., Boston, Mass., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

Rehearings Denied in Nos. 6095-6097. December 3, 1963.

ALDRICH, Circuit Judge.

Appellants, Jacobs, Reiss and Dole, were indicted in two counts for conspiracy to defraud the United States, 18 U.S.C.A. § 371, in connection with two Massachusetts highway condemnations affecting the federal fisc, cf. Harney v. United States, 1 Cir., 1962, 306 F.2d 523, cert. den. O'Connell v. United States, 371 U.S. 911, 83 S.Ct. 254, 9 L.Ed.2d 171. Each taking was of a (separate) portion of a lot belonging to Joada Realty Corporation, a fourth appellant.¹ Appellants were acquitted on Count One, but, along with one DeSimone who does not appeal, convicted on Count Two. It will be more convenient to leave to the last a recitation of the evidence.

Reiss complains at the outset of the court's failure to grant a continuance requested because of the hospitalization of his intended real estate expert witness, one Donovan, ten days before trial. It is elemental that on such an issue the burden is the heavy one of showing an abuse of discretion. Isaacs v. United States, 1895, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229. The court felt, both before the trial and afterwards, that Reiss had sufficient opportunity to obtain another witness. The record contains nothing affirmatively counter to this conclusion. We attach no weight to counsel's prophecy, when he discovered Donovan was ill, that he would not be able to obtain a replacement. Equally unprobative is the statement in the brief that "it may be assumed, in view of the importance of the testimony, that Reiss and his counsel did all they could to find a sufficiently qualified witness, and that if they found none it must have been because of the limitations of time." A burden is not met by such "assumptions," particularly when there was another inference in fact drawn by the trial court. At the hearing on defendants' motions for new trial the court expressed the opinion that, in the light of the testimony and a view of the locus which the court and jury had taken, the reason no other expert was produced was because no honest expert could testify the way Reiss desired.

This statement of the court points out a further defect in Reiss' position. Whether in addition to having to show an abuse of discretion or as a part of such a showing, an appellant must normally demonstrate a likelihood of prejudice. Neufield v. United States, 1941, 73 App.D.C. 174, 118 F.2d 375, 380, cert. den. Ruben v. United States, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199; Lockhart v. United States, 6 Cir., 1920, 264 F. 14, cert. den. 254 U.S. 645, 41 S.Ct. 14, 65 L.Ed. 455; cf. Heflin v. United States, 5 Cir., 1955, 223 F.2d 371, 375, rev'd on other grounds, on collateral attack, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). In the ordinary instance this may be done by an affidavit of the absent witness' expected testimony. This case is unusual in that Reiss' complaint was that he did not have a witness, and, by hypothesis, was in no position to aver. We need not determine just what a disappointed appellant must show in such a situation by way of prejudice. It is enough to hold that he should not, as here, leave a record indicating the reverse.

When Reiss requested the continuance the government stipulated that if he failed to obtain another witness he might have Donovan testify by affidavit. In due course Reiss produced an affidavit from Donovan, but, unaccountably, the opinion expressed therein gave but a single dollar figure for the two takings combined. It is difficult to disagree with the district court that any expert should have known better because not only was each taking involved in a separate count of the indictment, but each was independent in time, characteristics and effect. Although advised by the court of the inadmissibility of such testimony Reiss failed to obtain a further statement. From the fact that Donovan had sufficiently advanced in his studies to give a combined figure for both takings it is reasonable to infer that his failure to make the separation was not due to lack of preparation, but was because of the unsatisfactory disclosure such a separation would have produced. His subsequent silence, particularly having in mind that an expert who had been working on a matter for months might well be expected to have at least some basis for an opinion by the time the case was about to be reached, strengthened the unfavorable inference. We recognize that expert testimony may produce special problems, but on this record we find no error in the court's concluding that even with a continuance Reiss never would have any witness, Donovan included, who could help him on the second count.

Reiss' next contention, that the verdicts on Counts One and Two were fatally inconsistent, was more than adequately answered by the further remarks of the district court in denying the motion for new trial. We will not repeat them.

All defendants object to the court's using the term "dishonest methods" in defining fraud to the jury, claiming that, through ambiguity or otherwise, the charge was too broad. Each defendant was represented by competent counsel who had both ears and eyes to measure the charge's meaning and effect.² Not one voiced any objection. We may well assume that if there was an ambiguous overstatement it was a meaning so hidden that the jury, too, would not discover it. United States v. Kahaner, 2 Cir., 1963, 317 F.2d 459, 478-479, cert. den. 84 S.Ct. 74. Alternatively, if defendants are correct, it was a ruling that could have been curtailed to fit the exact circumstances of the case without doing violence to any principle. This is peculiarly a situation where a party owes a duty to the court to make known his position.³

We will mention briefly defendants' claim that the assistant United States attorney was guilty of prejudicial misconduct in asking two questions of a witness Poster which improperly suggested an illegal payoff. This claim, too, is too late. The court sustained a general objection to the government's questions, without stating its grounds. The defendants did not ask for a mistrial, or that the jury be instructed forthwith to disregard any inference the questions may have suggested. They argue that they did ask, at the conclusion of Poster's testimony, that all his testimony be stricken. This motion was denied, and we note parenthetically, properly. But, contrary to defendants' present contentions, this motion was directed to answered questions and had nothing to do with those which were unanswered. While we are not unsympathetic with defendants' feeling that asking the second question after the first had been excluded reveals the true motivation behind the questioning, the court took, with respect to these questions, all the action requested of it. It may well have concluded the defendants felt it better to let the matter pass, hopefully unnoticed, than to make further comment. In the absence of clear prejudice, which we do not find here, it is too late for defendants now to suggest an alternative. Jenkins v. United States, 5 Cir., 1958, 251 F.2d 51; see Webb v. United States, 10 Cir., 1951, 191 F.2d 512, 516; cf. Green v. United States, D.C.D.Mass., 1958, 158 F.Supp. 804, 809, aff'd 1 Cir., 256 F.2d 483, cert. den. 358 U.S. 854, 79 S.Ct. 83, 3 L.Ed.2d 87. But cf. Pierce v. United States, 6 Cir., 1936, 86 F.2d 949, 952-954. Rather, this is a typical case of "Monday-morning-quarter-backing," Schino v. United States, 9 Cir., 1953, 209 F.2d 67, 73, cert. den. 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087, that the courts have only too frequently been called upon to reject.⁴

We turn to the contentions, differing in detail from defendant to defendant, that the evidence did not warrant findings of guilt. The evidence showed that the corporate defendant Joada was the owner of a 13.82 acre lot in Lowell, Massachusetts acquired from the city in 1956 for $18,000 (allegedly at a bargain rate) and containing an alleged special-purpose factory, then erected, at a cost of some $550,000. The first taking, which was the one involved in the first count of the indictment, reduced one side of the lot by some two acres and materially, it could be found, impeded access to the factory. A staff appraiser of the Massachusetts Department of Public Works initially estimated the damages at $25,000. Under the Commonwealth's procedure it was necessary, because this figure exceeded $2,500, that there be "outside" appraisals (normally two) which, along with the Departmental appraisal and other information, would be submitted through defendant Dole's office to the statutory Board of Review, hereinafter Board. The Board was then authorized to set the maximum figure for administrative settlement. As associate commissioner in charge of rights of way it was Dole's assigned duty to appoint outside appraisers, and he appointed, as one, defendant Jacobs. Jacobs thereafter submitted a...