Rossi v. United States

• Decision Date: 09 January 1922
• Docket Number: 3710.
• Citation: 278 F. 349
• Parties: ROSSI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F. 349

ROSSI v. UNITED STATES.

No. 3710.

United States Court of Appeals, Ninth Circuit.

January 9, 1922

Barnett H. Goldstein, of Portland, Or., for plaintiff in error.

Lester W. Humphreys, U.S. Atty., and John C. Veatch, Asst. U.S Atty., both of Portland, Or.

See also, 268 F. 620.

The indictment in this case charges a conspiracy to defraud the United States, and to alter certain obligations of the United States, to wit, United States War Savings Certificates and United States War Savings Certificate Stamps, by removing the stamps from the certificates and erasing from the face of the stamps certain registration or identification marks. The defendant Rossi interposed a demurrer to the indictment on the ground that it failed to charge facts sufficient to constitute an offense against the United States and on the ground of duplicity. The demurrer was overruled, and this ruling forms the basis of one of the principal assignments of error. After the demurrer was overruled, the defendant was placed upon trial without a formal plea. This, also, is assigned as error. Upon the trial one of the witnesses for the defense stated that he had asked the attorney for the defendant to place him on the witness stand, thus giving him an opportunity to explain away some newspaper notoriety, and to get the truth before the court and his friends. The following proceedings were then had:

The attorney for the defendant asked: 'Q. This was a personal request of me as a friend of yours? A. Yes, absolutely. The Court: Q. Who is your friend? A. Well, I have friends all over the Coast, your honor. The Court: Q. I thought you meant Rossi.'

It is now claimed that this remark or comment of the court was highly prejudicial to the defendant, although no objection was made or exception reserved at the time. Again the court admitted, over objection, the testimony of a post office employee to explain the mode of registering War Savings Certificate Stamps. This ruling is assigned as error. The court further admitted testimony as to admissions, or statements, made by Rossi to a special agent of the Department of Justice and before the grand jury. Later the

court struck the testimony of the special agent of the Department of Justice from the record and instructed the jury to disregard it. After striking this testimony and directing the jury to disregard it, the court charged the jury as follows:

'I instruct you, however, that the statement made by Rossi in giving evidence (before the grand jury) is not to be so disregarded by you. There is evidence tending to show that Rossi appeared before the grand jury voluntarily, and of his own accord, and, although warned that whatever statement he might make would be used in evidence against him, he, notwithstanding, gave such evidence without insisting upon his immunity. The evidence, therefore, of Mr. Young, the foreman of the grand jury, was competent and pertinent to prove the admissions of Rossi with reference to the stamp transactions, and you are to regard these admissions for whatever tendency they may have, if any, to show Rossi's connection with the alleged conspiracy.'

This charge is assigned as error as well as the refusal of the court to charge as follows:

'If you believe that the confession made by Mr. Rossi to Mr. Young, foreman of the grand jury, was traceable to the hope inspired by the assurances made by Mr. Walters and Mr. Glover in the first instance, and that Mr. Rossi at the time was relying upon such assurances when he made the confession to Mr. Young, then such confession is inadmissible and you should disregard it. It is not material whether Mr. Young knew that Mr. Glover had inspired the hope in the mind of Mr. Rossi, provided there was causal connection between the hope aroused and the confession. The fact that the confession was not made to the officer arousing that hope is immaterial. When an improper influence has been exercised, it becomes the duty of the government to show that it has been removed before this subsequent confession can be held admissible.'

Again the court charged the jury as follows:

'You will inquire whether the stamps were stolen, and, if so, whether by either of the defendants. And in this relation I may say to you that the possession of recently stolen property affords a strong inference that the property was stolen by the person having it in his possession.'

After retirement the jury returned into court and propounded certain questions to the court, whereupon the following took place:

'Now, gentlemen of the jury, the first question that you propound is the following: Does a stamp, simply by being removed from a certificate, said certificate not being registered, become an altered stamp? To that I answer: That if the certificate has a stamp attached, and the name of the party written upon the certificate, and the stamp thereafter has been removed with intent to defraud, then the defendant would be guilty, whether the certificate or stamp was registered or not.

'The next question you ask is this: If defendants thought at the time that they were handling stolen stamps, but did not know they were altered registered stamps, could we find them guilty on this indictment? My answer to that is: That if the defendants were handling these stamps, knowing them to be stolen, and they handled them with intent to defraud the United States, then they would be within the purpose of this indictment.'

Error is also assigned to the refusal of the court to grant a new trial because of certain prejudicial newspaper comments during the trial, and because this court has heretofore granted a new trial as to Peterson a codefendant. Peterson v. United States (C.C.A.) 274 F. 929. To review the judgment on a verdict of guilty, the present writ of error has been sued out by the defendant Rossi.

Before GILBERT and HUNT, Circuit Judges, and RUDKIN, District Judge.

RUDKIN District Judge (after stating the facts as above).

The argument in support of the demurrer for want of sufficient facts is based...