United States v. Greenberg, 18021.

• Decision Date: 30 December 1969
• Docket Number: No. 18021.,18021.
• Citation: 419 F.2d 808
• Parties: UNITED STATES of America v. Harry GREENBERG, Dominic Mattia, Nick Pannarella, Ernest Paul, Alfred Sireci, and Hirschel Weisbord, aka Hirschel Washbord, Alfred Sireci, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

419 F.2d 808 (1969)

UNITED STATES of America v. Harry GREENBERG, Dominic Mattia, Nick Pannarella, Ernest Paul, Alfred Sireci, and Hirschel Weisbord, aka Hirschel Washbord, Alfred Sireci, Appellant.

No. 18021.

United States Court of Appeals Third Circuit.

Argued December 1, 1969.

Decided December 30, 1969.

Alfred J. DiBona, Jr., Philadelphia, for appellant.

Victor Wright, Asst. U. S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U. S. Atty., on the brief), for appellee.

Before GANEY, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Appellant was one of six men indicted for aiding and abetting in the concealment of corporate assets in contemplation of a bankruptcy proceeding. Following a successful motion for a severance, appellant's counsel appeared before the district court on March 13, 1969, and requested that the trial be continued because of counsel's impending appointment to the state bench in Pennsylvania. On counsel's advice that his associate could assume the defense within "a month to six weeks," the court continued the case to May 5, 1969.

On the day set for trial, the associate appeared and requested a second continuance. After extended argument the motion was denied and the case proceeded to trial and conviction by a jury three days later. Appellant contends that he was denied due process by the refusal of a second continuance. We disagree.

The Supreme Court has clearly stated that "the matter of continuance is traditionally within the discretion of the trial judge," and that "a denial of a continuance * * * so arbitrary as to violate due process * * * must be found in the circumstances present in every case." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed. 2d 921 (1963). We have carefully examined the circumstances present here and have concluded that, having afforded counsel ample opportunity to prepare the defense, the district court acted properly in refusing another delay. As was noted in United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3 Cir. 1969): "What is demanded here is the exercise of judicial discretion in the exquisite sense." We detect no abuse of that discretion here.

Appellant also asserts error in the introduction of the testimony of the witness Scolnick who was then under state indictment for subornation of perjury. It is appellant's position that Pennsylvania law, 18 P.S. § 4322, renders a perjurer incompetent to testify in judicial proceedings and therefore required the exclusion of Scolnick's testimony. The argument, however, ignores the obvious fact that Section 4322 applies only to those convicted of perjury or subornation. The witness Scolnick had been indicted, but not convicted. Moreover, the argument assumes the application of state evidentiary rules to federal proceedings. See United States v. Margolis, 138 F.2d 1002 (3 Cir. 1943).

There is equally little merit to the...