United States v. Kaplan

• Citation: 101 F. Supp. 7
• Decision Date: 14 November 1951
• Docket Number: Cr. A. No. 101-94.
• Parties: UNITED STATES v. KAPLAN.
• Court: U.S. District Court — Southern District of New York

101 F. Supp. 7

UNITED STATES v. KAPLAN.

Cr. A. No. 101-94.

United States District Court S. D. New York.

November 14, 1951.

Irving H. Saypol, U. S. Atty., New York City, Bruno Schachner, Asst. U. S. Atty., New York City, of counsel, for plaintiff.

Samuel W. Altman, New York City, for defendant.

WEINFELD, District Judge.

The defendant, now on probation following the expiration of a twelve year sentence, moves to set aside the judgment of conviction and to vacate the sentence. The Court has conducted a hearing pursuant to Title 28 U.S.C. § 2255.¹

The defendant was convicted in this Court on September 6, 1938, on all seven counts of an indictment charging the sale and possession of narcotics and conspiracy. He was sentenced to twelve years imprisonment, fined $2,500, of which $500 was remitted, and placed on five years' probation to follow the prison term. The conviction was affirmed by the Court of Appeals on March 20, 1939.² The defendant served six years in prison, was released on conditional parole for the remaining six years and is currently on probation until June 1956.

The indictment was the second in chronological order of three indictments, all based on the same facts — possession and sale of narcotics on two occasions.

The first indictment, filed on April 23, 1937, charges one Hyman and another, Levine, with two sales of heroin to one Edward A. Murphy, a Government Agent, on March 13, 1937, and March 26, 1937. The indictment also contains a conspiracy count.

The second indictment, filed on September 28, 1937, on which the defendant was convicted, names Nathan Kaplan, alias "* * * `Kitty'" as the sole defendant, and also names Hyman and Levine as co-conspirators but not as defendants. It is identical in phraseology with the first indictment except for the overt acts in the conspiracy count.

The third indictment, filed on January 5, 1938, names Max Kaplan, "alias Brownsville Kitty" and the defendant herein, Nathan Kaplan, alias "* * * `Kitty,'" as well as two other defendants. The substantive counts are the same as those in the first two indictments, although the conspiracy count and the overt acts differ.

Upon the trial, Nathan Kaplan, the moving defendant, and Max Kaplan, named in the third indictment, were referred to under the same aliases, "Kitty" or "Kitty Kaplan."

The conviction was based principally upon the testimony of one Laura Miller, a Government informer, with a record for prostitution and possession of narcotics, Murphy, the Government Agent, to whom the sales were made, and another Government Agent. The evidence disclosed that some six years before the acts alleged, Laura Miller had known a "Kitty" Kaplan, admittedly not Nathan Kaplan, the moving defendant, who had supplied her with narcotics. In February 1937, while acting as a Government informer, she left a message for the "Kitty" Kaplan she knew, at a drug store, formerly owned by the brother of that "Kitty" Kaplan, and a few days later, February 26th, received a telephone call from a man who said he would call on her. She claimed that the following day, Nathan Kaplan, the moving defendant, came to her home, discussed the purchase of narcotics and told her he would send two men to visit her. According to her testimony this was the first time she had ever seen Nathan Kaplan.

She further stated she next heard from the defendant by telephone on March 7th, when he again informed her that two men would visit her that day; that Hyman and Levine came to her apartment that day and returned there on March 12th, when she introduced them to Agent Murphy. They returned on March 13th, when Murphy ordered seven ounces of heroin from them. Delivery was made the same day. She also testified that the defendant again called on her on March 23rd. Thereafter, Hyman and Levine made a second sale of narcotics to Agent Murphy, at which time they were arrested.

Murphy and his fellow Agent both testified they had observed the defendant at the Miller apartment and also saw him entering or leaving the apartment house, to which he had driven in a Plymouth car. Another witness, a convicted prostitute, who shared an apartment with Laura Miller, also identified the defendant. On cross-examination she admitted being under the influence of narcotics while on the witness stand.

The defendant did not take the stand.

At the trial, and also upon appeal, the defense vigorously contended that Max Kaplan, alias "Kitty," then a fugitive, was the perpetrator of the crime charged and that it was he, and not Nathan Kaplan, who had called on Laura Miller on both occasions and had been observed by the Government Agents.

Hyman and Levine were serving prison sentences at the time of trial, having pled guilty to the first indictment. They were brought here to testify on defendant's application pursuant to writs ad testificandum. Each swore that until the moment of his testimony he had never seen or heard of the defendant Nathan Kaplan; that he was not the person who had sent them to Laura Miller's apartment. Both denied knowing Max Kaplan, alias "Kitty" Kaplan. However, when pressed to name Max Kaplan, alias "Kitty" Kaplan (who, as already noted, was a fugitive) as the person who had sent him there, Levine remained mute but acknowledged that he did not want to be regarded as a "squealer."

Thus, mistaken identity was the central issue; the jury accepted the Government's version, rejected the contention of the defense, and found that the prosecution beyond a reasonable doubt had established its case.

The defendant now advances the same contention as on the trial, but submits the following additional evidence which was not presented, nor available, at the time of trial:

More than a year after Nathan Kaplan's conviction, Max Kaplan surrendered, pleaded guilty to the third indictment, and was sentenced on October 23, 1939, to a term of eighteen months, which he served. (A nolle prosequi on this indictment was entered as to the moving defendant in 1946.)

Max Kaplan was called as a witness upon the hearing on the present application. He swore that he had known Laura Miller some five or six years before the date of the offenses in the indictment; that he had then had transactions with her; that in 1937 it was he who had received Laura Miller's note, left at the drug store once owned by his brother; that it was he who had telephoned her and visited her apartment on both occasions named in the indictment; that he was the owner of the Plymouth car; that it was he who had sent Hyman and Levine there; that upon learning of their arrest he fled and secreted himself for almost two years until his surrender in 1939.

He stated that he had never seen or heard of Nathan Kaplan until 1940, when, while serving his sentence, he first heard that they had been convicted for the same crime. The information came to him from another inmate but he did nothing about it since it was hearsay and he "couldn't stick his neck out." He saw Nathan Kaplan while they were both in the same penitentiary but did not have a chance to speak with him.

It was not until 1950 that he first met Nathan Kaplan, then on conditional parole, and definitely learned of the latter's conviction for the very offense for which he, Max Kaplan, had also been sentenced and served time. At Nathan Kaplan's urging, Max Kaplan consulted his lawyer, and then with him presented to the Assistant United States Attorney who had prosecuted both defendants, substantially the facts which were sworn to at the hearing and urged correction of the injustice to Nathan Kaplan.

Hyman and Levine also testified at the hearing and reiterated the testimony they had given upon the defendant's trial, that they had never seen or heard of the defendant. However, they went beyond their former testimony this time and named Max Kaplan as the culprit and the one who had sent them to Laura Miller's apartment to effect the sale of the narcotics. Levine explained his former refusal to identify Max Kaplan, stating that it had been "against his code" to incriminate one man to save another. Agent Murphy adhered to his testimony upon the trial and stated his present belief that his original identification of the defendant was correct. No question is raised as to the honesty of the Government Agent but there is a serious question as to his opportunity for precise observation. The others who identified the defendant at his trial were not called as witnesses.

At the Court's direction, the Assistant United States Attorney who presented the evidence which led to the indictments and also prosecuted Nathan Kaplan and received the plea of Max Kaplan, was called as a witness. An able prosecutor of more than twenty years' experience in the preparation and trial of narcotics cases, he expressed, with commendable candor, the view that Nathan Kaplan had been unjustly convicted or mistakenly convicted for Max Kaplan, "Kitty" Kaplan. His present opinion was based upon the following facts, unknown to him at the time of trial:

The prosecutor first learned in 1950, when Max Kaplan ("Kitty" Kaplan) called on him, that the address from which the fictitiously registered car seen at the Miller apartment was recorded, was the same address as that of the mother of Max Kaplan ("Kitty" Kaplan), and that the latter was a frequent visitor there; second, the prosecutor observed the striking resemblance between the defendant and Max Kaplan when the latter surrendered; third, he discovered that Laura Miller's note had, in fact, been delivered to Max Kaplan; finally, the prosecutor had not known of any connection between Max Kaplan and the visits to Laura Miller and the sale to the Agents. The indictments had been drawn on the theory that Nathan Kaplan made the sale directly, whereas Max Kaplan was the supplier and operator of a refinery from which the defendant Nathan Kaplan had obtained the drugs. Thus, under this view, Max Kaplan's culpability was only indirectly connected with...