United States v. Cohen, 63.

Citation124 F.2d 164
Decision Date02 March 1942
Docket NumberNo. 63.,63.
PartiesUNITED STATES v. COHEN et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Saul Price, of New York City, for appellant Philip Cohen.

Henry G. Singer, of Brooklyn (Henry G. Singer and Hamilton Lieb, both of Brooklyn, of counsel), for appellants Abraham Lorber and Albert Angelson.

Herbert Zelenko, of New York City, for appellant Samuel Bernstein.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and James G. Scileppi, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for appellee United States of America.

Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.

Writ of Certiorari Denied March 2, 1942. See 62 S.Ct. 796, 86 L.Ed. ___.

AUGUSTUS N. HAND, Circuit Judge.

The defendants were indicted and convicted under two counts (1) for knowingly concealing and facilitating the concealment of three grains of morphine knowing that it was imported contrary to law and (2) for knowingly concealing and transporting and facilitating the concealment and transportation of thirty-nine ounces of morphine knowing the same to have been so imported. Both counts charged a violation of U.S.C.A. Title 21, Section 174, which reads as follows: "If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more that $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

U.S.C.A. Title 18, Section 550, provides that: "Whoever 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, is a principal."

The defendants were all convicted upon both counts and each has appealed. Under the first statute we have quoted it was only necessary to show possession of the narcotics to establish guilt and under the second statute, making an abettor a principal, it was not necessary that each of the defendants should have had the narcotics, but only that one or more of them had possession while the others aided in the illicit transaction to which that possession was incidental. United States v. Hodorowicz, 7 Cir., 105 F.2d 218, 220, certiorari denied, 308 U.S. 584, 60 S.Ct. 108, 84 L. Ed. 489; Vilson v. United States, 9 Cir., 61 F.2d 901.

The denial of the very usual motions for severance and separate trials (which it is to be observed the defendant Bernstein did not make) is relied upon as a ground for reversing the judgment. Ordinarily the granting of such motions is within the discretion of the trial court and, where the charge against all the defendants may be proved by the same evidence and results from the same series of acts as was the case here, the discretion should not be interfered with. United States v. Smith, 2 Cir., 112 F.2d 83, 85. Cohen objected to being tried with the others because he was under indictment for murder in the State Court. We can see no relevancy in this objection. The objection, if good, would prevent his trial singly. Lorber and Angelson objected because they had acted as spies for the police in narcotic cases and might have given some of the evidence leading to the trial and also because their co-defendants were hostile to them. The first objection and indeed the second do not justify interference with the discretion of the trial judge. It is common in cases of joint indictments that there is hostility of some of the defendants to the others and that they will try to save themselves by placing the blame on their associates in the crime. The jury can, and does, weigh the inducement of some defendants to implicate others in determining guilt. We find no error in the disposition of the motion to compel a severance and hold that the order denying it should be affirmed.

Sufficient proof was offered to justify the verdict of conviction. The evidence involved transactions proved in the conspiracy for which Louis Adelman was convicted and which we dealt with in United States v. Adelman, 2 Cir., 107 F.2d 497. The indictment in the present case was for the substantive offenses of concealing morphine, rather than for conspiracy, but a conspiracy to conceal was thoroughly proved. Accordingly the admission of certain items of evidence against only single defendants could not have been injurious to the others for the proof so admitted related to acts and declarations occurring in the course of the conspiracy and clearly admissible against all defendants.

The government offered proof that Adelman met the defendant Bernstein and was informed by the latter that if he could only get someone to advance...

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  • U.S. v. McPartlin, s. 77-2258
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 23, 1979
    ...the charge against all the defendants may be proved by the same evidence and results from the same series of acts." United States v. Cohen, 124 F.2d 164, 165 (2d Cir.), Cert. denied sub nom. Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 (1942). See also United States......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • February 6, 1958
    ...250 U.S. 583, at page 585, 40 S.Ct. 28, 63 L.Ed. 1114; Dauer v. United States, 10 Cir., 1951, 189 F.2d 343, 344; United States v. Cohen, 2 Cir., 1941, 124 F.2d 164-166; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, at page 95. In a conspiracy case a severance should not be granted exce......
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 7, 1960
    ...are of the same or similar character, a severance should not be granted except for the most compelling reasons. United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, 165-166, certiorari denied sub nom. Bernstein v. United States, 1942, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210; United States ......
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    • February 16, 1962
    ...States v. Lebron, 222 F.2d 531, 535 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955); United States v. Cohen, 124 F.2d 164, 165-166 (2d Cir. 1941), cert. denied, Bernstein v. U. S., 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 (1942). 5 See Schaffer v. United States, 2......
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