United States v. Klein
Decision Date | 18 April 1955 |
Citation | 131 F. Supp. 807 |
Parties | UNITED STATES of America v. Hyman Harvey KLEIN, Isidor J. Klein, Albert McLennan, George Norgan, Ellis Rosenberg, Maurice Haas, Irving A. Koerner, Morris O. Alprin and Albert Roer, Defendants. |
Court | U.S. District Court — Southern District of New York |
J. Edward Lumbard, U. S. Atty., New York City, by Arnold Bauman, Harold R. Tyler, Jr., Asst. U. S. Attys., Joseph De Franco, John J. Donahue, New York City, Martin Carmichael, Jr., Asst. U. S. Atty., West Palm Beach, Fla., and Arthur Brooks, Asst. U. S. Atty., New York City, James Riordan, Atty., Department of Justice, Washington, D. C., for the Government.
Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, Theodore A. Kiendl, William Meagher, John Reed, New York City, Fred Horowitz, Los Angeles, Cal., of counsel, for defendant Hyman Harvey Klein.
Louis Bender, New York City, for defendant Maurice Haas.
F. Joseph Donohue, Washington, D. C., Michael Kaminsky, New York City, Abraham S. Goldstein, Washington, D. C., of counsel, for defendant Morris O. Alprin.
Samuel Becker, New York City, John H. Norris, David Stock, New York City, of counsel, for defendant Irving A. Koerner.
Greenman, Shea, Sandomire & Zimet, Barr & Barr, New York City, Frederick F. Greenman, Robert H. Haines, New York City, of counsel, for defendant Albert Roer.
On May 13, 1954 the Grand Jury indicted nine defendants. The First Count charges all nine with having attempted to evade the 1944 income tax of one of the defendants; the Second Count charges all nine with having attempted to evade the 1945 income tax of said one defendant; the Third Count charges all nine with having attempted to evade the 1946 income tax of said one defendant; the Fourth Count charges all nine with having conspired to evade the 1944, 1945 and 1946 income tax of four of the defendants; and the Fifth Count charges seven of the defendants with conspiring to defraud the United States in the exercise of its governmental function of collecting and assessing income taxes by concealing the 1945, 1946 and 1947 net income of three of the defendants named in the first four counts, one of whom is not named in the Fifth Count as a defendant.
On September 17, 1954 another indictment was filed against the said nine defendants which substantially repeated the fourth and fifth counts of the indictment filed on May 13, 1954.
One of the nine defendants having died and three of them being without the United States, the remaining five came to trial on April 4, 1955.
At the opening of the trial the United States moved to sever the Fourth and Fifth Counts of the indictment filed May 13, 1954 and to consolidate that indictment with the subsequent indictment filed September 17, 1954. The defendants having consented thereto, there resulted a consolidated indictment containing as the first three counts thereof the first three counts of the indictment of May 13, 1954 and as the Fourth and Fifth Counts thereof the two counts of the indictment of September 17, 1954, upon which consolidated indictment the trial proceeded.
At a pre-trial conference the United States Attorney agreed that in his opening to the jury he would make reference to the issuance by the OPA of the said order to R. C. Williams & Co., Inc., only by stating that it had been issued in that amount. The trial proceeded to a point where the Government sought to elicit from a witness on the stand testimony leading to the excessiveness of the price allowed in said OPA order above the legal maximum price for said whiskey. At that point the defendants interposed an objection to any testimony in the trial dealing with the propriety of the price fixed in the OPA order and how it was obtained.
At the outset it must be determined whether this pronouncement by my colleague is the law of the case binding upon me in determining the defendants' objection and motion to exclude any testimony during the trial with respect to the alleged illegality of the defendants, or any of them, having obtained an OPA price in excess of the legal maximum.
The determination on the motion to strike the third paragraph of the Fourth Count of the indictment was addressed only to that relief and was predicated on affidavits alone. That ruling, in that context, does not restrict a later ruling by the trial judge upon the admissibility of evidence during a trial before a jury.
The problem here posed is not easily solved. It involves the discriminate weighing of the relevancy of the collateral charge against the prejudice if any that the admission of the disputed testimony may visit upon the defendants. Many decisions have been written which have, in the main, obscured rather than clarified the applicable test. The resultant seeming conflict is in part attributable to the dissimilarity of precise facts between the cases although it has been said that the judicial personality also plays a leading role in the end result.2
Dean Wigmore's assessment of responsibility, while it has not gone unchallenged,3 has had the salutary effect of cautioning judges to approach the problem without maudlin sympathy for defendants. It is in that frame that the instant objection and motion are appraised.
From the abundance of cases treating with the subject a classic statement of the test to be applied is that of Judge Learned Hand:4
The first axiom of admissibility is that none but facts having rational probative value are admissible.5 Thus a fact to be admissible must be agreeable to reason and intelligence and be sensible and...
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Welch v. United States
...case into a "trial within a trial" and in actuality exposes the defendant to a conviction for a crime not charged, see United States v. Klein, D.C., 131 F.Supp. 807; but evidence tending to prove a material fact although incidentally showing the defendant to have committed another crime, or......