United States v. Kahaner

• Decision Date: 16 February 1962
• Citation: 203 F. Supp. 78
• Parties: UNITED STATES of America v. Elliott KAHANER, Antonio Corallo, Robert M. Erdman, James Vincent Keogh, and Sanford J. Moore, Defendants.
• Court: U.S. District Court — Southern District of New York

203 F. Supp. 78

UNITED STATES of America v. Elliott KAHANER, Antonio Corallo, Robert M. Erdman, James Vincent Keogh, and Sanford J. Moore, Defendants.

United States District Court S. D. New York.

February 16, 1962.

Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, William G. Hundley, John F. Lally, Sp. Attys., Dept. of Justice, Washington, D. C., for the United States.

William W. Kleinman, Brooklyn, N. Y., for defendant Elliott Kahaner.

Michael P. Direnzo, New York City, for defendant Antonio Corallo.

John P. McGrath, New York City, for defendant James Vincent Keogh.

Albert J. Krieger, New York City, for defendant Sanford J. Moore. Theodore Krieger, New York City, of counsel.

WEINFELD, District Judge.

These are motions made by four of five defendants who are charged with conspiracy to obstruct the due administration of justice.

The single count indictment alleges that the five defendants conspired together with others, named as coconspirators but not as defendants, corruptly to influence and endeavor to influence, obstruct and impede the due administration of justice in the United States District Court for the Eastern District of New York. It is charged that the conspiracy embraced attempts to obtain dismissal of charges against four of six individuals named in a criminal complaint filed before a United States Commissioner in that District, and, further, attempts to obtain suspended or light sentences for Moore, a defendant herein, and others who had been indicted in that District for crimes alleged in the complaint, to wit, fraudulent concealment of assets in a bankruptcy proceeding and conspiracy so to do. In the bankruptcy prosecution, Moore and two co-defendants (the latter being named herein as co-conspirators, but not as defendants) entered pleas of guilty. Moore was sentenced to three years imprisonment and the others to lesser terms.

MOTIONS FOR A SEPARATE TRIAL

The defendants Kahaner and Keogh move, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, 18 U.S. C.A., for a separate trial from the defendant Moore. He is one of the persons with respect to whom it is alleged that the defendant Kahaner, to carry out the conspiracy, would and did attempt to obtain dismissal of the complaint before the United States Commissioner and thereafter, following Moore's indictment, would and did attempt to obtain a suspended sentence for him.

The basis of the motion for a separate trial is the contention, made upon information and belief by the respective attorneys for the movants, that Moore, after the termination of the alleged conspiracy and after he had been sentenced, made a statement or confession and also testified before the Grand Jury which returned the present indictment; that his statement and Grand Jury testimony not only inculpated him, but also implicated Kahaner and perhaps involved Keogh; that the prosecution intends upon the trial to offer Moore's statement in evidence against him; and finally, that Moore's defense is antagonistic to that of Kahaner.

Recognizing that Moore's statement would be admissible against him upon the trial, but not against them, the moving defendants urge that it may be of such a highly prejudicial nature that admonitory instructions to the jury limiting it to Moore alone would be futile.

Defense counsel surmise the content of Moore's statement and his Grand Jury testimony by reason of the fact that his sentence was reduced from three years to one year following his appearance before the Grand Jury. They suggest that Moore's motion for a reduction, the file of which was ordered sealed by the sentencing court, was favorably acted upon because he has been and is cooperating with the prosecution.

The problem presented — that of protecting an alleged co-conspirator against the prejudicial force of a hearsay statement incompetent as against him, but competent against the declarant, an alleged co-conspirator — is not uncommon, and arises in most conspiracy or joint trials.¹ The courts have had occasion to deal with it frequently.² The general rule is that persons jointly indicted should be tried together,³ particularly so where the indictment charges a conspiracy or a crime which may be proved against all the defendants by the same evidence and which results from the same or a similar series of acts.⁴ But a single joint trial, however desirable, may not be had at the expense of a defendant's right to a fundamentally fair trial.⁵ Economy of judicial manpower and the prompt trial of those accused of a crime must be weighed against possible unfairness to a defendant.⁶ However, the public interest in avoiding duplicitous, time-consuming and expensive trials is such that separate trials of jointly indicted defendants — with the inevitable disclosure of the Government's entire evidence upon the first — should be granted only when it appears that a joint trial will prejudice one or more defendants. As stated by this Court in a similar situation:

"To be sure, since guilt is personal, the ideal of perfection would be that each defendant face a jury of his peers in a separate trial where evidence admissible only against him would be heard by the jury. Thus, any danger of transference of the illicit conduct of others to the defendant would be eliminated. Since the ideal is unattainable — either because of the nature of many crimes, or for other practical reasons — the defendant is entitled to a separate trial as a matter of right only upon a showing of prejudice * * *." United States v. Cafaro, 26 F.R.D. 170, 172 (S.D. N.Y.1960).⁷

Thus, the court whose discretion is invoked must decide whether under the circumstances of a particular case the admonitory instruction to a jury will be sufficient to safeguard each defendant's rights.

The fact that a declarant's statement contains incriminating references to his alleged co-conspirators is not sufficient in and of itself to require a separate trial;⁸ nor is the fact that there is hostility between one or more defendants, or that one defendant may try to save himself at the expense of another, conclusive on the issue.⁹ More must be shown.

The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct.¹⁰ In sum, can the jury keep separate the evidence that is relevant to each defendant¹¹ and render a fair and impartial verdict as to him? If so, though the task be difficult,¹² severance should not be granted.

The Court at this juncture of the proceeding is without the necessary information to decide whether or not Moore's statement is of such a prejudicial nature to other defendants that its admission in evidence, despite precautionary instructions by the trial judge, will spill over and subtly affect the jurors, imposing upon them the difficult, if not well nigh impossible, task of blotting out hearsay references which may incriminate any of Moore's co-defendants. The movants base their allegations of possible prejudice upon newspaper reports and public statements by Moore at the time his sentence was reduced. The nature of the alleged statement by Moore or his Grand Jury testimony is not known at this time. Such references, if any, that he may have made therein to other defendants can only be the subject of conjecture.¹³ Accordingly, the Court is of the view that the defendants have not now shown sufficient to establish that the statement, if offered upon the trial, will be of such a prejudicial nature that severance is compelled.¹⁴

The sweep of Moore's admissions, their pervasive force, their cumulative effect and their likely impact upon a co-defendant can be judged more realistically against the background of the trial itself and the independent evidence presented against the nondeclarant defendents.¹⁵ Thus, the trial court may conclude against the framework of the entire evidence that Moore's statement is "largely cumulative"¹⁶ or only "glancingly" affects the other defendants,¹⁷ and that the admonitory instruction is adequate. On the other hand, the statement may be so "damning"¹⁸ that the trial court perforce will conclude that the instruction is but to keep the promise to the ear and break it to the hope — that the inculpatory sweep of the statement imposes such a psychologically difficult task upon the jurors in segregating the evidence as to each defendant that in end result one or more would be deprived of a fair trial.¹⁹ In such an eventuality, various solutions may resolve the problem.

The statement may be edited so that any prejudicial matter as to other defendants is deleted,²⁰ and it is restricted to Moore alone. If elimination of the objectionable material is not feasible,²¹ the prosecution may decide not to offer the statement and to forego its cumulative²² value. Such was the prosecution's decision in Dauer v. United States, 189 F.2d 343 (10th Cir.1951).

If the Government insists upon admission of the statement, the court may decide that its impact upon the other defendants is so pervasive and unfair as to outweigh its evidential value against Moore, the declarant, and exclude it.²³ As was suggested by Judge Learned Hand in United States v. Gottfried,²⁴ in this situation there would be no absolute right to the use of the statement.²⁵ Cumulative evidence, while competent as to one defendant, may be excluded when its probative value is counterbalanced by its unfair prejudicial effect upon those as against whom it is not competent²⁶ — indeed, as undue prejudice may lead to exclusion of even entirely competent cumulative evidence.²⁷

In the event the Government resists exclusion on the ground that Moore's statement is indispensable in the prosecution against him, the trial court would...