United States v. Keller

• Decision Date: 26 October 1956
• Docket Number: Crim. No. 92-55.
• Citation: 145 F. Supp. 692
• Parties: UNITED STATES of America v. Saul A. KELLER.
• Court: U.S. District Court — District of New Jersey

145 F. Supp. 692

UNITED STATES of America v. Saul A. KELLER.

Crim. No. 92-55.

United States District Court D. New Jersey.

October 26, 1956.

Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., by Pierre P. Garven, Asst. U. S. Atty., Ridgewood, N. J., for plaintiff.

Martin D. Moroney, Newark, N. J., for defendant.

MODARELLI, District Judge.

Defendant was indicted for aiding and abetting in the filing of a false Federal Housing Administration Certificate in violation of 18 U.S.C. § 1010.¹ The cause was tried with a jury and a verdict of guilty returned on May 24, 1956. The defendant moved timely for a judgment of acquittal, including in the alternative a motion for a new trial. Federal Rules of Criminal Procedure, Rules 29(b), 33, 18 U.S.C. Specifically, the defendant asserts the following grounds in behalf of his motion: (1) Insufficient evidence to warrant conviction; (2) the verdict was contrary to law in that because the certificate was forged the F.H.A. would not honor any claim or be influenced within the meaning of Title 18 U.S.C. § 1010; (3) an erroneous charge; (4) error in admitting Ginter's statement in evidence; and (5) the statement by a handwriting expert engaged by defendant would discredit Ginter's testimony and reveal the "inconclusive" nature of the testimony of the Government's handwriting expert.

Attention will be directed to the contentions asserted by defendant regarding the authenticity of the signatures of the home owners, Mr. and Mrs. William G. Harris, on the F.H.A. Completion Certificate.² It should be noted at the outset that for this element of defendant's motion reliance is placed upon an affidavit of J. Howard Haring, who claims expertise in the field of handwriting analysis. The analysis of signatures made pursuant to an examination granted by this court June 7, 1956, is reported in an affidavit signed by Mr. Haring. His opinions may be summarized as follows:

1. Mr. Haring was "unquestionably inclined to the opinion that the pen and ink used to sign the names `William G. Harris' and `Ruth E. Harris' * * * was the same pen and ink used to write all the other writings admittedly written by J. J. Ginter * * *."

2. Further, he was "unquestionably inclined to the opinion that the questioned signatures `William G. Harris' and `Ruth E. Harris' * * * were written by the same individual who wrote all the writings admittedly inscribed * * * by J. J. Ginter * * *."

3. Lastly, he was "unquestionably inclined to the opinion that the questioned signatures, `William G. Harris' and `Ruth E. Harris' were not written by the defendant, Saul A. Keller."

Movant asserts that the impact of Mr. Haring's opinion just summarized, amounts to newly-discovered evidence. Movant cites two rules, that are announced in Larrison v. United States, 7 Cir., 1928, 24 F.2d 82, and in Berry v. State of Georgia, 1851, 10 Ga. 511. The rule in the Larrison case, supra, at pages 87 and 88 of 24 F.2d is that a new trial should be granted when,

"(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

"(b) That without it the jury might have reached a different conclusion.

"(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial."

To be contrasted with the Larrison rule is the so-called Berry rule, to wit:

"(a) The evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Johnson v. United States, 8 Cir., 1929, 32 F.2d 127, 130.

The distinction between and the applicability of the two rules was explained in United States v. Johnson, 7 Cir., 1944, 142 F.2d 588, 591. The Larrison rule is applicable where there has been a recantation or where it has been proved that false testimony was given at the trial. Gordon v. United States, 6 Cir., 1949, 178 F.2d 896; United States v. Hiss, D.C.S.D.N.Y.1952, 107 F.Supp. 128, affirmed, 2 Cir., 1953, 201 F.2d 372. Otherwise, the Berry rule is applicable. It should be emphasized that under the Larrison rule the court must be reasonably well satisfied that testimony at the trial was false, and that without it the jury might have reached a different conclusion. I am not so satisfied.

Turning now to the application of the Berry rule to the instant case, it is noteworthy that this rule is quite generally applied by the federal courts and is of almost universal application among the States. 23 C.J.S., Criminal Law, § 1461; 39 Am.Jur. § 165. The law of New Jersey seems to follow the Berry rule. State v. Bunk, 1950, 4 N.J. 482, 73 A.2d 245. The leading case in the Third Circuit on the question of newly discovered evidence is United States v. Rutkin, 1953, 208 F.2d 647.

Was the evidence in fact newly discovered? The alleged evidence which defendant relies upon is the opinion of the handwriting expert, Mr. Haring. The entire issue of the authenticity of the signatures on the F.H.A. Completion Certificate was joined when Ginter denied forging the document. Defendant made no effort during the course of the trial to adduce independent evidence to controvert this denial, although every avenue was open to him to explore this issue during the trial. Ginter's testimony was taken on the first day of the trial, yet defendant made no request to adjourn in order to obtain the services of a handwriting expert.

Is the evidence relied on cumulative or impeaching? It will be recalled that defendant testified that Ginter had told him that he, Ginter, had forged the documents; Ginter said that he had not forged them. Any further evidence, such as the opinion of a handwriting expert as to the signatures in question would most definitely be both cumulative and in the nature of an attempt to impeach. The conflict, under our system, is for the triers of fact to resolve.

While evidence of a handwriting expert would be material to the issue of credibility, is it such that on a new trial the newly discovered evidence would probably produce an acquittal? The most favorable import to be given to the affidavit of defendant's handwriting expert is that, in his opinion, it is probable that the writing on certain exhibits pointed to the hand of Ginter. Opposed to this conclusion was the testimony of Clarence Bohn, F.B.I. handwriting expert, who said he could not tell who forged the documents.

Aside from the conflict surrounding the signatures, defendant's credibility was vigorously challenged at all other points throughout the trial, most pointedly with the statements of Mr. Harris and with the F.B.I. Agent Johnson. Viewing the case in its totality, it is most speculative to conclude that the verdict would turn upon the evidence of defendant's handwriting expert.

Defendant contends that the court erred in admitting prior statements of witness Ginter, more specifically, the statement made to an F.B.I. Agent, Raymond L. Johnson, in August, 1954. Defendant testified that Ginter admitted to him that he, Ginter, had forged the F.H.A. papers. At the conclusion of defendant's case, the Government offered Johnson who testified as to prior statements taken from Ginter. Defendant cites Ellicott v. Pearl, 10 Pet. 412, 9 L.Ed. 475, and Conrad v. Griffey, 11 How. 480, 1850, 52 U.S. 480, 13 L.Ed. 779, concerned with impeachment by inconsistent statements.

This contention by defendant requires a review of the area of the rules of evidence known as impeachment and support. More specifically, it touches upon the scope to be given to efforts in support of a witness. What kind of attack upon a witness opens the door to that form of "bolstering" evidence known as prior statements by the witness consistent with his present story?³

McCormick on Evidence, (1954), Ch. 5, § 49, discusses this problem as follows:

"There is much division of opinion on the question whether impeachment by inconsistent statements opens the door to support by proving consistent statements. A few courts hold generally that it does. Cross v. State, 1912, 118 Md. 660, 86 A. 223; Piehler v. Kansas City Pub. Service Co., 1950, 360 Mo. 12, 226 S.W.2d 681; State v. Bethea, 1923, 186 N.C. 22, 118 S.E. 800 (allowable after any form of impeachment). Most courts, since the inconsistency remains despite all consistent statements, hold generally that it does not. Ellicott v. Pearl, 1836, 10 Pet. 412, 439 9 L.Ed. 475; Commonwealth v. Jenkins, 1858, 10 Gray, Mass., 485, 488. But certain exceptions should be recognized. * * * If in the particular situation, the attack by inconsistent statement is accompanied by, or interpretable as, a charge of a plan or contrivance to give false testimony, then proof of a prior consistent statement before the plan or contrivance was formed, tends strongly to disprove that the testimony was the result of contrivance. Here all courts agree."⁴

McCormick continues:

"It is for the judge to decide whether the impeachment amounts to a charge of contrivance, — ordinarily this is the most obvious implication — and it seems he is entitled to have an avowal one way or the other from counsel."

The application of the foregoing review to the record of the instant case raises several questions.

1. May the court interpret defendant's attack upon Ginter as a charge of a plan or contrivance to give false testimony? The cross-examination of Ginter by defense counsel reveals that defense counsel sought to show that Ginter's trial testimony was contrived after the witness was charged with a federal violation.⁵ It will be noted that the attempt to establish a fabrication was focused at a time subsequent to the August, 1954,...