United States v. Ginsburg

• Decision Date: 13 June 1938
• Docket Number: No. 6473.,6473.
• Citation: 96 F.2d 882
• Parties: UNITED STATES v. GINSBURG.
• Court: U.S. Court of Appeals — Seventh Circuit

96 F.2d 882 (1938)

UNITED STATES v. GINSBURG.

No. 6473.

Circuit Court of Appeals, Seventh Circuit.

April 27, 1938.

Rehearing Denied June 13, 1938.

Samuel Golan, I. Harvey Levinson, Michael Gesas, and Albert Sabath, all of Chicago, Ill., for appellant.

Michael L. Igoe and Mary D. Bailey, both of Chicago, Ill., for the United States.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

Appellant was charged by Grand Jury indictment with violation of the Federal Narcotic Acts. The indictment was in ten counts. The first five counts respectively charged appellant with having sold to James McGovern, at different times, in September and October, 1937, separate amounts of certain narcotics, in violation of section 2 of the Harrison Anti-Narcotic Act, 26 U.S.C.A. § 1044(a). The fifth count charged the sale of 10 grains of heroin hydrochloride on October 6, 1937. The remaining five counts charged that appellant fraudulently and knowingly received, concealed, bought, sold and facilitated the transportation and concealment, after importation of, the identical narcotics respectively mentioned in the first five counts, on the respective dates therein mentioned, in violation of section 2 of the Narcotic Drugs Import and Export Act, as amended, 21 U.S.C.A. § 174. The jury found appellant guilty as charged in counts five and ten, and found him not guilty as charged in the other counts. Motions for a new trial and in arrest of judgment were overruled. Judgment of guilty was rendered in conformity with the verdict, and he was sentenced to prison for three years and fined $2,000 on each of the two counts upon which he was found guilty, with a concurrent running of the penalty both as to fine and imprisonment.

It is contended by appellant that the court erred in not granting his motion to withdraw a juror and declare a mistrial for the misconduct of the District Attorney in propounding certain questions to witnesses, which questions he claims were of a prejudicial nature.

The charge was supported by the testimony of Government narcotic agents and James McGovern, an informer who was and had been a drug addict for fifteen or twenty years last past. McGovern testified that he met appellant through a man named Wolfe, whereupon the following testimony was elicited by the District Attorney, together with appellant's objections, and the court's rulings thereon:

"Q. What was Wolfe's business, if you know?

"A. Well he is such a man as myself; he don't amount to much and probably was trying to make something of himself.

"Mr. Golan: I object to that, and move that it be stricken out, your Honor.

"Q. Was he an addict?

"A. Yes.

"The Court: Let it stand.

"Q. Did he introduce you to Dr. Ginsburg?

"A. Yes, he did.

"Q. Had Mr. Wolfe been in jail with you; is that how you met him?

"Mr. Golan: That is objected to, and I move that it be stricken out.

"The Court: Strike it out.

"Mr. Golan: At this time, your Honor, I move to withdraw a juror, and that the case be dismissed for prejudice.

"The Court: Motion denied.

"Mr. Golan: Exception."

There was no error with respect to these rulings. No reason was given for the first objection and motion. Conceding without admitting that the question sought to elicit immaterial matter, no objection was made to the question. Both the objection and motion follow the answer, and must be considered as having been addressed to it. We think the answer was responsive to the question, and it was properly allowed to stand, because there was no objection to the question. Conceding without admitting that the rulings were erroneous, the error was not prejudicial, and was not sufficient to warrant the court in declaring a mistrial.

The second objection was directed to the question and was promptly sustained before answer. The exception was taken to the court's refusal to dismiss the case for prejudice. In this there was no error.

During the cross-examination of appellant by the District Attorney, the following occurred:

"Q. This is the first time that you have ever been charged with narcotic violation, Doctor?

"Mr. Golan: That is objected to, your Honor.

"The Court: Sustained."

In the absence of the jury, Mr. Golan states: "If the Court please, the last question propounded by the District Attorney, as to whether this defendant had ever been charged with a narcotic violation, is a palpable attempt to prejudice this defendant in the eyes of the jury, by the asking of a question that has no place in this record, and can only be intended to carry with it the implication that this is not the first time that the Doctor has been charged with narcotic violation. Your Honor sustained the question — sustained the objection to that question.

"The Court: Don't make a mistake. I sustained the objection to the question.

"Mr. Golan: I say, your Honor has sustained my objection to the question. I don't think that is sufficient to cure the almost certain impression that must of necessity go to the jury * * * and I now move that in view of the prejudice that has been created by or through the asking of this question, that a juror be withdrawn and a mistrial declared.

"The Court: No. I don't think so. * * * I have sustained the objection to it. That is all there is to it. Is there anything else you want to say before we bring in the jury?

"Mr. Golan: I would like to have your Honor instruct the jury to pay no attention whatsoever to the last question, and that it is not to be considered by them for any purpose whatsoever.

"The Court: I will do that."

In the presence of the jury the Court said: "Gentlemen of the jury, I wish to instruct you that you shall completely disregard the last question which was propounded to the witness before you left the court room. You are to consider this case as though that question had never been asked." There is no merit in appellant's contentions with respect to this part of appellant's cross-examination. The Court complied with appellant's requests in every particular except declaring a mistrial. There was no basis for such a request.

During appellant's cross-examination the District Attorney interrogated him with respect to his receipt of an official commission while engaged in the United States Naval Service. The only question objected to was as follows:

"Q. You did not receive it, did you Doctor?

"Mr. Golan: That is objected to.

"The Court: Sustained."

There being no reason given for the objection, and the ruling being in his favor, there is nothing upon which to predicate error.

Appellant further contends that the Court erred in limiting the cross-examination of the Government's witness McGovern. In response to a question by appellant's counsel, McGovern stated: "The last time I had a shot of dope was about a quarter of one in this building.

"Mr. Golan: Where did you get the dope?

"The Court: I don't think you need to make him incriminate himself. You don't need to go any further into that."

The Court further permitted him to answer the following question: "Did you get it from a narcotic agent?" A. "I did not." This was an inquiry into a collateral matter, and was only proper as affecting his credibility. His admission was beneficial to appellant in this respect, and it could not have been more beneficial for this purpose had he been permitted to state where he procured it. Aside from this, the Court has a large...