United States v. Echeles

• Decision Date: 10 May 1955
• Docket Number: No. 11185,11186.,11185
• Citation: 222 F.2d 144
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Julius L. ECHELES, Defendant-Appellant. The UNITED STATES of America, Plaintiff-Appellee, v. Paul ECHELES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

222 F.2d 144 (1955)

The UNITED STATES of America, Plaintiff-Appellee, v. Julius L. ECHELES, Defendant-Appellant.

The UNITED STATES of America, Plaintiff-Appellee, v. Paul ECHELES, Defendant-Appellant.

Nos. 11185, 11186.

United States Court of Appeals Seventh Circuit.

April 20, 1955.

Rehearing Denied May 10, 1955.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Frank W. Oliver, Francis Heisler, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Anna R. Lavin, Edward J. Calihan, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel.

Before DUFFY, Chief Judge, and MAJOR and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

From judgments of conviction upon the verdicts of a jury, defendants, Julius L. Echeles ("Julius") and Paul Echeles ("Paul"), have appealed.

The indictment consisted of 13 counts. Eight of the first nine counts charged they received, and one count that they solicited, money in consideration for a promise of support and the use of influence in obtaining for the payers appointments to various positions in the post office, being misdemeanors in violation of 18 U.S.C.A. § 215. Counts 10 to 12 charge the defendants promised money to John Haderlein, postmaster of Chicago, to influence his decision in official matters, being felonies in violation of 18 U.S.C.A. § 201. Count 13 charges Paul and Julius and defendant, Max Lewis, with conspiracy to commit all the offenses set forth in counts 1 through 12 in violation of 18 U.S.C.A. § 371. The jury returned a verdict of not guilty as to Lewis on count 13 and found Paul and Julius guilty on all 13 counts.

1. Defendants in this court say that the court's prejudicial rulings and conduct deprived defendants of a fair trial according to due process of law.

(a) They say that the trial judge abdicated his judicial function to the prosecutor. In support of this contention they point to the following proceedings: (1) When, prior to the trial, defendants attempted to procure by subpoena duces tecum certain witness statements, the court struck from the subpoena reference to a statement by one John Haderlein. Defendants now say, in doing so the judge reversed himself following a suggestion by Mr. Cohen, the government counsel. We find nothing in the proceedings on that occasion to sustain this charge. (2) Later government counsel moved to quash a subpoena procured by defendants and served upon the postmaster, claiming that it called for a huge mass of documents which obviously had no materiality. Defense counsel stated that they certainly should have the personnel jackets of the individuals named in the indictment. To this the court responded, "How about those, Mr. Cohen?" The court did not merely suggest that the defense "consult with Mr. Cohen," as they now say in their brief. The court added to the suggestion, "Perhaps he can get for you what you really want. After all, you do not want him to bring a carload of personnel jackets in here." But defense counsel rejoined, "Yes, I do, your Honor." The court then sustained the motion to quash the subpoena. (3) At the trial, when Finn, attorney for defendant Lewis, stated an objection to certain government exhibits, the court asked Cohen if he cared to comment on that objection. The latter stated that he had no objection to their not being admissible against Lewis at that time. Whereupon the court told the jury that "We are going to receive these exhibits at this time only as to the defendants Paul Echeles and Julius L. Echeles. They are not to be considered as evidence against the defendant Max Lewis at this time. I will sustain your objection at this time so far as your client is concerned, Mr. Finn. I am sorry I didn't ask you to state your position." Mr. Stewart, attorney for Paul and Julius, said, "I had forgotten he is here, your Honor. I beg his pardon." (4) When the question of subpoenas came up again, the court observed that Mr. Cohen was to consider them overnight and inquired: "Did you consider them?" Receiving an affirmative answer, the court asked, "Would you care to state the Government's position with respect to these subpoenas?" Thereupon followed a statement by Mr. Cohen of the government's objections to the production of the material asked for by the subpoenas.

Seventeen other colloquies, of a similar nature, are also cited to show abdication. This contention, given prominence by defendants as the first point argued in their brief in this court, is without basis in fact.

(b) Defendants urge that the court repeatedly and improperly limited their cross-examination. We have examined the incidents at the trial specifically relied upon by the defendants in this connection.

As we said in United States v. Lawinski, 7 Cir., 195 F.2d 1, at page 7, where this court discussed the scope of cross-examination:

"It is for the presiding judge to exercise a wise discretion in determining whether, considering the examination in chief, it is fit and proper that the questions presented be permitted or excluded. Storm v. United States, 94 U.S. 76, 24 L.Ed. 42. All the decisions agree that the latitude allowed should be great enough to subserve ends of justice; but once fixed by the trial court it can not be deemed erroneous except where it is clear that that discretion has been abused, even though the discretion is necessarily vague in extent."

We do not believe that the court abused its discretion in respect to the scope of cross-examination allowed defendants' counsel.

(c) It is argued that the trial judge embarked on a deliberate campaign of ridiculing trial counsel in the eyes of the jury. Typical of the examples cited are the following: When defense counsel Stewart was cross-examining the first government witness, the district attorney objected and the court sustained the objection saying: "Mr. Stewart, if there is some part of the case that makes it necessary for that information to go to the jury, there is a way of getting it in. We are restricted by the rules of evidence as to what you may inquire into on cross-examination." Mr. Stewart: "Am I to understand Your Honor is going to allow them to prove what they want to and I cannot ask anything about these records?" Later, the court said to Mr. Stewart: "There is a way to prove anything material to your case, but that is not the right way, in my opinion." Again the court said to him: "If it is important to your case, then there is a way to get it in. We cannot do everything with one witness." The court also said: "I do request of you, Mr. Stewart, that you ask questions that are designed to impeach * * * just conform to the rules of evidence."

In view of the colloquy between court and counsel which appears to have accompanied these and other similar instances cited by defendants, we believe that the remarks of the court were not intended to, and did not, have the effect of ridiculing defense counsel.

A fair appraisement of the record fails to show that anything which the trial judge did or said deprived defendants of a fair trial.

2. Defendants also argue that the district attorney (Mr. Cohen) violated defendants' right to a fair trial because of his illegal and prejudicial conduct and questions during the trial. They point out that, the court having delegated its judicial function to the prosecution attorney, it was therefore error for the prosecutor to take advantage of that situation. We need not consider this argument in view of our holding that there was no such abdication.

We will, however, consider what defense counsel cites as the "highest peak" reached in the prejudicial conduct of the district attorney. He was cross-examining postmaster Haderlein, a defense witness. Without objection from defense counsel, Mr. Cohen asked: "For your information, Mr. Haderlein, the post office inspectors have testified that Paul Echeles told them, in addition to what is in the statement, that you were the person mentioned as the appointing official. Now, does that change your opinion of Paul Echeles?" The witness answered, "Either it would change my opinion of him or of the inspectors." Mr. Cohen then asked that the answer be stricken as not responsive to the question. The court said: "It may go out, and the jury will disregard it."

Obviously, the question called for a yes or no answer and the answer was unresponsive. Inasmuch as no objection was made to the question, and the court properly struck the answer and told the jury to disregard it, we find that the incident involved no prejudicial conduct on the part of the prosecutor.

We similarly characterize the other instances of alleged misconduct.

3. Julius, before the trial, moved for a severance and supported his motion by his own affidavit, which set forth that he was informed that Lewis made a statement to the federal officers and also testified before the grand jury, that Paul made and signed a statement and Julius was informed that Paul "expects" to claim on the trial that the statement was involuntary. He also stated that he (Julius) was not present when the above statements were made and that "they are not admissible as evidence against him," having been informed that said statements purport to relate to transactions in which Julius had been mentioned. He also stated that he "fears and represents his belief that any such statement introduced in evidence as against said co-defendants in a joint trial would prejudice the rights of this affiant to a fair and impartial trial." The motion was denied.

While defense counsel admits that the granting of a severance rests within the discretion of the trial court, he maintains that in this case the court abused its discretion. He does not point out what showing was made by the affidavit accompanying the motion upon which such charge of abuse of discretion is based. Actually there is no allegation in the affidavit as to the...