United States v. Katz

• Decision Date: 10 February 1949
• Docket Number: No. 9747.,9747.
• Citation: 173 F.2d 116
• Parties: UNITED STATES v. KATZ.
• Court: U.S. Court of Appeals — Third Circuit

173 F.2d 116 (1949)

UNITED STATES v. KATZ.

No. 9747.

United States Court of Appeals Third Circuit.

Argued January 3, 1949.

Decided February 10, 1949.

Edwin P. Rome, of Philadelphia, Pa. (William A. Gray, Julian E. Goldberg, and Gray, Anderson, Schaffer & Rome, all of Philadelphia, Pa., on the brief), for appellant.

Joseph P. Brennan, Asst. U. S. Atty., of Scranton, Pa. (Arthur A. Maguire, U. S. Atty., of Scranton, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN, and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellant was convicted of unlawfully acquiring, possessing and using counterfeit sugar ration stamps and ration checks in violation of Sections 2.5 and 2.6 of General Ration Order 8(8 F.R. 3783), a regulation issued by the Office of Price Administration under the Second War Powers Act of March 1942, 56 Stat. 177, 50 U.S.C.A. Appendix, § 631 et seq.

Appellant's appendix is contrary to Rule 24 of this court. Appellant did not furnish appellee with a statement of the parts of the record he proposed to print, as required, nor did he print in the appendix the testimony on which he relies for several of the points urged by him on this appeal. Appellee has moved to dismiss the appeal on these grounds. In the interest of justice we have considered this appeal on its merits and deny the motion, but such a course is not in any way to be construed as sanctioning this palpable violation of our appendix rule.

The main ground urged for reversal is that appellant was not given a fair trial because of the attitude of the District Judge towards one of his attorneys.

On at least one occasion during the trial proceedings and prior to the first incident complained of, the attorney's conduct had been open to criticism. That happened when he said something which was inaudible to the reporter while a prospective juror was being examined on his voir dire. Shortly thereafter the attorney was cross examining the government's first witness as to the latter's having seen the defendant. The witness stated he had seen Katz in Harrisburg. Counsel then asked, "That was at the trial where he was acquitted?" The Court thereupon excused the jury panel and at side bar admonished the attorney for unwarrantably injecting into the case the fact that Katz had been charged with some other crime. The Court said in part, "* * * why is it you are the only member of the bar who does not follow the rules. You know you have committed an impropriety. You know you have no right to do it. * * * Why do you violate the rules of the law? * * * The witness said nothing about being in court. You must be Peck's Bad Boy, all the time violating the rules. You violated the rules right there and you are doing it persistently."

Appellant primarily complains that though this was said out of the presence of the jury, the Scranton newspapers carried the story that afternoon and the next morning. Only one of the twelve jurors chosen in the case lived in Lackawanna County wherein the papers circulate and on the resultant motion for a mistrial it was not claimed that any of them had read the articles. We do not see that this episode evinces any partiality or prejudice on the part of the Court. From the form and wording of this experienced attorney's questions he had deliberately brought before the jury the then quite irrelevant element of another criminal trial at which Katz had been acquitted. His purpose in so doing need not be speculated upon, but what he did went to the vital question of a fair and orderly trial. The Court, having the high responsibility of seeing to it that such result was obtained, of necessity was forced to call counsel's attention to his impropriety and to caution him concerning it. The record shows that the Court did this firmly, courteously and circumspectly in the absence of the jury. The comparison to Peck's Bad Boy was an apt, withal mild, offhand illustration of counsel's conduct and should have helped him realize his errors. That likeable youngster of the old cartoon, it will be remembered, had a propensity for getting himself involved through innocent mischief. Even assuming that knowledge of the newspaper articles permeated to the jury, no real harm resulted to the defendant. Griffin v. United States, 3 Cir., 295 F. 437 and Meyer v. Cadwalader, C.C.Pa., 49 F. 32, are clearly distinguishable on their facts and do not here apply.

The second major item of alleged unfairness took place during the attorney's cross examination of the government witness, William Recupero. The witness was being confronted with his testimony given at the other trial where Katz had been a defendant and which was contradictory to his testimony in the present issue. He admitted contradictions but said that Katz had told him to so testify in the Harrisburg case and that Katz had said, "* * * if I didn't do it my life was going to be in danger." Then addressing the attorney he said, "And furthermore, you know all about the dealings; the answers in those questions you knew before we went to Harrisburg." The attorney pursued this further and the witness gave details of a meeting between himself, the attorney and Katz. Later in his testimony the witness said to the attorney, "* * * and another thing, last night while I was at the County Jail at 6:30 you came in and contacted a party in the County Jail." Counsel did not move to strike this but pressed the witness regarding it, and he elicited from the witness that the attorney had seen a client in the jail and that the latter had talked with him and told him what his lawyer had said. At that point the Court interrupted the cross examination saying, "Let's have an offer. Mr. Katz is entitled to have a fair trial, counsel or no counsel." A conference at side bar followed where the attorney advised the Court that he had gone to the jail the night previous in response to a letter from a client of his, one D'Angelico. The witness Recupero was called to side bar. The jury was excused. Recupero said that D'Angelico told him that the lawyer had offered to put $2,000 in his hands to give to Recupero together with a promise to pay his wife $30 a month while he was in jail if Recupero would change his testimony. Recupero said he rejected this offer. Following this the jury was returned and the noon recess taken with the Court saying, "Mr. Recupero will go now. I want him protected." When the court reconvened there was a further...