United States v. Jones

• Decision Date: 14 March 1967
• Docket Number: No. 298,Docket 30925.,298
• Citation: 374 F.2d 414
• Parties: UNITED STATES of America, Appellee, v. Paul R. JONES and Leo B. Mittelman, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

374 F.2d 414 (1967)

UNITED STATES of America, Appellee, v. Paul R. JONES and Leo B. Mittelman, Appellants.

No. 298, Docket 30925.

United States Court of Appeals Second Circuit.

Argued February 8, 1967.

Decided March 14, 1967.

COPYRIGHT MATERIAL OMITTED

Daniel R. Murdock, Asst. U. S. Atty., So. Dist. of New York (Robert M. Morgenthau, U. S. Atty., Michael W. Mitchell, Asst. U. S. Atty., on the brief), for appellee.

H. Elliot Wales, New York City, for appellant Jones.

O. John Rogge, New York City, for appellant Mittelman.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Paul R. Jones and Leo B. Mittelman were convicted after jury trial, each on one separate count of perjury in the United States District Court for the Southern District of New York, William B. Herlands, Judge, and they appeal. We find no error and affirm the judgments.

In 1960 Mittelman was convicted in the Southern District of New York of mail fraud and conspiracy to sell unregistered securities. The conviction was affirmed, United States v. Crosby, et al., 294 F.2d 928 (2d Cir. 1961), cert. denied sub nom. Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). On May 15, 1962 Mittelman submitted a motion for a new trial on the ground of newly discovered evidence and government suppression of evidence favorable to the defense. Submitted with the motion were affidavits of Jones executed April 2, 1962 and Mittelman executed May 14, 1962. The convictions for perjury here under review were based on statements in those affidavits to the effect that newly discovered evidence existed in that Jones could testify that the government had knowingly used perjured testimony of witnesses Holland and Carroll and that Jones had not been available to reveal this to Mittelman from the time the government rested until months after the conclusion of the trial.¹

During the course of the trial in United States v. Crosby, witnesses Holland and Carroll had testified on behalf of the government in a manner unfavorable to Mittelman. Jones had been subpoenaed by the government as a possible government witness and had been in contact with Mittelman. The government rested its case in chief May 2, 1960 without calling Jones.

The government, in the case at bar, produced evidence that after the government rested, Mittelman, who had been informed by Jones that he could contradict Holland and Carroll as to some of their testimony, arranged a meeting of a number of the defendants and their counsel at the Royalton Hotel on May 4, 1960 at which Jones was present and talked at some length but apparently in a somewhat rambling fashion. Unimpressed by their observation of Jones, and informed of his criminal record, counsel decided not to call him as a defense witness. It is not clear whether Jones had gone to North Carolina when excused by the government May 2, and had come back at Mittelman's call on May 4, or whether he stayed on through May 4 or returned to North Carolina and came back once again after May 4, although it appeared that Mittelman's brother on May 6 cashed a check of Mittelman's for $300 to pay Jones' expenses.

The motion for new trial, and a companion motion for correction of an allegedly illegal sentence were denied. Notices of appeal were filed and the denial of correction of sentence was affirmed, 314 F.2d 654 (2d Cir.), cert. denied 373 U.S. 923, 83 S.Ct. 1523, 10 L.Ed.2d 421 (1963). The appeal from the denial of new trial was abandoned.

On Jones' appeal from the perjury conviction he contends principally that the evidence was insufficient, that it was error to deny his motions for severance, and to deny inspection of Jones' Grand Jury testimony until late in the government's case, and attacks the government's summation as improper and prejudicial. Jones also joins in Mittelman's contentions, which are, in addition to those of Jones, chiefly that it was error to deny earlier production of Mittelman's Grand Jury testimony, that the allegedly perjurious statement was not material to the issue to which the affidavit was addressed and that the indictment should have been dismissed since proof of a former conviction could not properly be used against him.

Neither Jones nor Mittelman took the stand in this perjury trial. Both, however, had testified before the Grand Jury, and transcripts of the testimony of each were read in evidence, with instructions, however, that it was not to be considered except as to the one whose testimony it was.

I.

Both object to the joinder for trial of the two counts of the indictment, one count charging Jones, the other Mittelman. These objections fail for two reasons. The indictment charged the preparation by Jones and Mittelman of false affidavits as to Jones' availability, to be filed with Mittelman's motion. Thus, the joinder of the two counts alleging that the defendants had "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" was well within the terms of Fed.R. Crim.P. 8(b). United States v. Cohn, 230 F.Supp. 587 (S.D.N.Y.), mandamus denied sub nom. Application of Gottesman, 332 F.2d 975 (2d Cir. 1964). In the second place, no grounds for relief from prejudicial joinder under Rule 14 were shown. There need be no charge of conspiracy to make actions and declarations of joint actors in furtherance of a common illegal plan admissible against each actor. United States v. Annunziato, 293 F.2d 373, 378 (2d Cir.), cert. denied 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961); St. Clair v. United States, 154 U.S. 134, 149, 14 S.Ct. 1002, 38 L.Ed. 936 (1894); United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945); People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433 (1938). The evidence admitted against both could therefore have been admitted against either on separate trial and no prejudice from the joinder can be made out. See United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966).

II.

The falsity of the statements of unavailability of Jones after May 2 was clearly proved by the testimony of Steinberg, one of defense counsel in the principal case as to the meeting in the described suite at the Royalton to assess Jones' desirability as a witness, that it was the sole meeting he attended there and that Jones talked at length at the meeting, taken together with the testimony of hotel employees and the plainly admissible hotel records fixing the date as May 4, reinforced by Mittelman's check for Jones' expenses cashed by Mittelman's brother on May 6.²

III.

The evidence was clearly sufficient against each appellant to meet the strict requirements³ of the perjury rule calling for the testimony of two witnesses or the testimony of one witness with corroborating circumstantial evidence. See, e. g. United States v. Marchisio, supra, n. 2; see also United States v. Goldberg, 290 F.2d 729 (2d Cir.), cert. denied 368 U.S. 899, 82 S.Ct. 176, 7 L.Ed. 2d 94 (1961), to the effect that documentary evidence plus the admissions of the accused are sufficient, as in the case at bar.

IV.

Judge Herlands was concerned over the possibility of prejudice in this trial if it should be revealed to the jury that Mittelman had been convicted in the Crosby case. The judge went to extraordinary lengths to attempt to keep knowledge of the conviction from the jury. Now appellants contend that he did not go far enough, for in spite of all precautions the word "prosecutor" crept in, and the claim is that this must have revealed the whole situation to the jury. If this were important, we would be inclined to hold that this was insufficient to place the earlier crime before the jury so that appellants were convicted because of it rather than the evidence of the instant offense. We need not, however, waste much time in speculating how much the jury did, in fact, divine, for the fact of the conviction was relevant and material to show the strong motive the fact provided for the making of the false affidavits, and we will not deprive the trier of this evidence merely because the crime here necessarily bore a close relationship with an earlier crime. The essence of the crime related to the conviction. Reference to another crime is barred only if introduced solely for the purpose of showing that the defendant "committed the crime on trial because he is a man of criminal character." United States v. Bozza, 365 F.2d 206, 213 (2d Cir. 1966). Cf. Spencer v. State of Texas, 385 U.S. 896, 87 S.Ct. 648, 17 L.Ed.2d 606 (January 23, 1967).

V.

Mittelman contends further that even if the statements be found untrue as used, they were not material to the proceeding in which they were used, his application for new trial. Materiality of the statements was correctly held to be an issue for the court, which held them material. United States v. Siegel, 263 F.2d 530, 533 (2d Cir.), cert. denied 359 U.S. 1012, 79 S.Ct. 1147, 3 L. Ed.2d 1035 (1959). The claim that they were erroneously held material must be rejected. Even if, as is now claimed, the main thrust of the motion was not newly discovered evidence that Jones would contradict government witnesses Carroll and Holland, but that Jones would testify that he had informed the government of the claimed falsity of Holland's and Carroll's testimony and the government had used it regardless and that Jones had not revealed this to Mittelman until after the trial, the statements would still be material. The court before which the motion was pending would be interested in knowing not only whether Jones had told those details to Mittelman, but whether he was available, whether he talked at all to Mittelman, when and to what extent, so that not only the truth of the statements could be tested, but also Mittelman's diligence in inquiring. Diligence is material on any claim of newly discovered evidence. United States v. Pellegrino, 273 F.2d 570 (2d Cir. 1960); United States v. Costello, 255 F.2d 876,...