United States v. Block, 265.

• Decision Date: 08 March 1937
• Docket Number: No. 265.,265.
• Citation: 88 F.2d 618
• Parties: UNITED STATES v. BLOCK et al.
• Court: U.S. Court of Appeals — Second Circuit

88 F.2d 618 (1937)

UNITED STATES v. BLOCK et al.^*

No. 265.

Circuit Court of Appeals, Second Circuit.

March 8, 1937.

Louis Halle, of New York City, for appellants.

Lamar Hardy, U. S. Atty., of New York City (John W. Burke, Jr., and Richard Delafield, Asst. U. S. Attys., and Walter B. Lockwood, Sp. Asst. U. S. Atty., all of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Block and Levy were convicted with others upon three counts for possessing an unlawful still, and upon another count for conspiracy to possess the still and to defraud the United States of taxes by its use. In general outline the evidence proved that the ringleaders, Griffin, Brinkman, Block and Levy, leased a parcel of land near Fishkill in Dutchess County, N. Y., on which they set up a still with the aid of workmen, among others one Rubin, who testified against them on the trial. They shipped to New York by truck potable alcohol, reclaimed by the still out of denatured alcohol. It is not necessary to discuss the evidence in detail, because Block's guilt is too plain for doubt, and, as will appear, Levy's conviction cannot stand anyway. One of the prosecution's witnesses was Daniel Block, a brother of the defendant, Max Block. Before the trial he had been subpœnaed to appear before the grand jury or the prosecutor, to whom he made a statement which was taken down by a stenographer and typed. This incriminated both Max Block and Levy; the witness said in substance that together with Griffin they were the leaders in the enterprise, and had often discussed the still and the general business in his hearing, especially at Block's house where he lived. When called at the trial this witness proved recalcitrant and would not stand by his story. The prosecutor for a while unsuccessfully plied him in the usual way; he would remember nothing of any consequence and what he did was vague and unconvincing; it was plain to anyone who had the ex parte examination before him, that he had had a change of heart and meant to protect his brother. The prosecutor thereupon turned the examination into a cross-examination; and this the judge allowed — quite properly, for it was obvious that the witness was suppressing the truth. That also proved unsuccessful; and the prosecutor began to use the earlier statement. First, he asked the witness to read it, and see whether it did not refresh his recollection. It did not. Finding himself thus baffled, the prosecutor then began to read the examination, question and answer, asking him after he had read a passage, whether it was true. The witness, so cornered, tried to excuse himself by saying that he had been frightened; that he had answered what he thought would best please; and that all the incriminating answers were fabrications of the moment. This was continued until the whole of the statement had been read to the jury, though all that was of any moment he explicitly disclaimed. All this time the defendants continually protested and were uniformly overruled. Upon his charge the judge told the jury that they might use any part of the statement which the witness had admitted; but none that he had not.

The position of a prosecutor, faced with a perjured witness whom he has called with good warrant to suppose him friendly, is trying, and the courts have not dealt hardly with him. In Di Carlo v. United States, 6 F.(2d) 364, we said that he should be given the greatest latitude in examination and allowed to use the earlier statement, even at the risk that the jury might take it as testimony; indeed, we went so far as to say that it was possible that it might in fact become testimony; for a witness upon the stand may so behave that his conduct is more of an affirmation of an earlier statement than his halting words are a denial; just as a nod or a gesture may be an assent. Men do not express themselves wholly by words. But the situation at bar was very different from anything of the kind. It is true that the witness was plainly lying, but that was just because, instead of affirming the statement, he persistently and unconditionally denied it. There was not the least color for allowing the jury to take it as his testimony on the stand, and the inevitable result was to get before them unsworn evidence in an exceptionally impressive and damaging way. For it was much worse that the witness was obviously trying to protect the defendants; so that when the examination was over, the natural conclusion was not only that the defendants had kept the still, but that they had suborned the witness to deny it. The judge's charge mended nothing; he left the jury to disentangle in their minds the innocuous part which the witness had conceded, from the great bulk which he had disaffirmed. The hearsay remained as effective as before, and really the prejudice was incurable anyway, whatever he might have said. Perhaps the rule against hearsay ought to be discretionary, dependent upon how far...