United States v. Levi

• Decision Date: 07 October 1949
• Docket Number: No. 9795.,9795.
• Parties: UNITED STATES v. LEVI.
• Court: U.S. Court of Appeals — Seventh Circuit

177 F.2d 827 (1949)

UNITED STATES v. LEVI.

No. 9795.

United States Court of Appeals. Seventh Circuit.

October 7, 1949.

George R. Jeffrey, Indianapolis, Ind., Sheldon E. Bernstein, Washington, D. C. (Newmyer & Bress, Washington, D. C., of counsel), for appellant.

B. Howard Caughran, United States Attorney, Elba L. Branigin, Jr., Assistant United States Attorney, Indianapolis, Ind., Maurice W. Graston, Assistant United States Attorney, Indianapolis, Ind., for appellee.

Before MAJOR, Chief Judge, and MINTON and DUFFY, Circuit Judges.

DUFFY, Circuit Judge.

Defendant appeals from a judgment of conviction on a charge of conspiracy to steal government property, entered pursuant to a jury verdict. Errors relied upon arise from failure of the court to discharge the jury by reason of alleged prejudicial matters injected into the trial by the prosecution, failure to grant defendant's motion for a judgment of acquittal, rulings on evidence and insufficiency of the evidence to support the verdict and judgment.

The indictment charged that John J. Ward, Jr., Bernard J. Ward, and the defendant conspired to steal 7,812 bed sheets, 3,925 pillow cases, and other goods, the same being property of the United States of America. The evidence shows that Camp Atterbury was formerly a military camp located near the city of Indianapolis, Indiana; that in 1947 and 1948 this camp was in the process of being closed and liquidated; and that three officers, one enlisted man, and 70 civilian employees were stationed on the reservation during the period of the alleged conspiracy.

The defendant, who is 67 years of age, has been conducting a junk business in Elwood, Indiana, for 52 years. Since 1924 his business has been conducted as a corporation under the name of Elwood Iron and Metal Company, Inc. This company is wholly owned by the defendant and immediate family except for one share of stock. Both before and after the time of the alleged conspiracy, the defendant had made numerous purchases of salvage from various army camps, including Camp Atterbury.

In November, 1947, when Warrant Officer Rosen was about to be transferred from Camp Atterbury where he had acted as salvage officer, he introduced defendant to Lt. John J. Ward, Jr. and told defendant he could thereafter deal with Ward on salvage matters. Defendant asked Ward what was going to be done with salvage left over from fires which had destroyed Warehouses 926 and 927, and Ward stated that when a report of survey was approved he would let the defendant know. Several weeks later Ward called defendant by telephone, asking him to come out to Camp Atterbury, which the defendant did. Upon his arrival he stopped at the office of Major Saul who was in command of the camp. Defendant inquired whether Lt. Ward had the authority to dispose of salvage. The defendant testified that Major Saul told him that everything that was left there then was left to the post engineer (Ward), and when defendant asked whether it was all right for him to go ahead and buy, Major Saul answered, "As far as I am concerned, it is." But Saul testified that he limited his remarks to the remains of Warehouses 926 and 927. It is undisputed that the defendant and Ward had a conference, and that defendant agreed to clean up the two jobs. It is also undisputed that the defendant first offered to pay Lt. Ward $500, and when Ward suggested he had better offers, defendant offered to pay $560, and Ward agreed to this figure. His first payment to Ward was $260, and the latter gave defendant a receipt reading,

"Jan. 28, 1948

"Received of A. Levi

"Two hundred sixty — no/100 dollars

"Deposit on scrap & salvage in building XXX-XXX-XXXX

"John Ward "1st Lt. CE."

Building 3107 was what remained of a theatre which had burned. Subsequently defendant's employees salvaged scrap from Buildings 926, 927 and 3107, and because defendant claimed insufficient suitable scrap was involved to make the work worthwhile, Lt. Ward permitted the defendant to take five tons of salvage from the post engineer's salvage yard. Prior to the time the salvage was moved, defendant paid Ward $300 additional.

In March, 1948, Lt. Ward mentioned to the defendant that there were between 75 and 80 crates of sheets and pillow cases at the Wakeman General Hospital site at the camp, and asked defendant whether he was interested in them. After several conversations an agreement was made for the removal of these sheets and pillow cases by the defendant, who thereafter made several payments of cash to Lt. Ward totaling $2,400 ($2,960 covered all purchases).

On April 17, 1948, at about 7:00 A.M., pursuant to arrangements made by Ward and the defendant, one of defendant's truck drivers, named Bannon, driving one of defendants' trucks, met Lt. Ward and his brother, Bernard J. Ward, at the little used north gate of Camp Atterbury. The Wards escorted the truck to Building 1039. Although Lt. Ward had a key to the lock on the door of the building, he was unable to open it; thereupon he obtained a tire tool and pulled out the staple to which the lock was affixed and thus opened the door. Forty crates were loaded on the defendant's truck. The top, but not all of the sides, of the load were covered by a tarpaulin. As the truck was being driven back toward the north gate, guards approached from the rear in a vehicle. Lt. Ward, who was riding in his automobile near the defendant's truck, spoke to the guards who thereupon turned back. The load of sheets and pillow cases was then driven to defendant's place of business at Elwood. A few days later 30 or 35 additional crates of sheets and pillow cases were delivered to defendant's place of business by Bernard J. Ward, having been transported in a truck which had been rented for that purpose by Lt. Ward. All of the crates were stored, partly covered by a tarpaulin, in an open shed on defendant's premises in Elwood.

The sheets and pillow cases had been used in the hospital. Many had been repaired; others had cigarette burns and holes in them; some crates contained bugs and insects. Nevertheless, in late April defendant sold them, delivered in Chicago, for $5,631.60.

While the crates were stored in the shed, an employee of the local hospital noticed them and informed her superintendent, who in turn inquired of the defendant whether the sheets and pillow cases could be purchased. Defendant informed the superintendent that they were not fit for hospital use and gave her a donation with which to buy new sheets.

Defendant offered the testimony of three character witnesses, and also took the stand in his own behalf. Almost at the close of the testimony the Assistant United States Attorney asked him, "Now, Mr. Levi, are you the same Abraham Levi that was convicted in this court on an attempt to evade and defeat the income tax of the Elwood Iron and Metal Company on last Tuesday in Cause No. ____." The defendant's counsel objected saying, "The defendant objects to that as highly prejudicial, and that has not been passed upon; it has not been settled at all." The court said, "I think that it is unfair." Counsel: "I move that it be stricken out and the jury instructed not to —" The Court: "There is no answer; it was out of place and should not have been asked. You will not pay any attention to that."

Out of the presence of the jury the defendant's counsel moved for a discharge of the jury by reason of the above-mentioned conduct of the prosecuting attorney. The court overruled the motion but said, "We will do the best we can." Shortly thereafter the court instructed the jury, and included therein was the following: "During the course of this trial there was a question propounded to the Defendant Levi by the District Attorney with reference to his having been convicted for a felony within this court within the last few days. That question was improper and should not have been asked, and I am asking you at this time to erase it from your minds entirely in considering the case, not think of it, and not consider that such a question was asked; and, of course, I am certain that you will do that when you come to consider the guilt or innocence of the Defendant Levi."

When the Assistant United States Attorney asked Levi if he were the same Levi who was convicted a few days previously in a tax evasion case, he knew or at least should have known that a judgment of conviction in that case had not been entered, and that the court still had the motion for judgment of acquittal under consideration. Under such circumstances asking that question constituted error. Corti v. Cooney, 1926, 191 Wis. 464, 211 N.W. 274. See also: Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905, 907; Sanford v. United States, 69 App.D.C. 44, 98 F.2d 325, 327; Glover v. United States, 8 Cir., 147 F. 426, 429, 8 Ann.Cas. 1184. The fact is that the judgment of conviction which was thereafter entered in that case has been reversed by this court. United States v. Levi, No. 9794, 177 F.2d 833.

Corti v. Cooney, supra, was a civil case, but the court's well reasoned opinion applies with even greater force in a criminal case. There, Miss Cooney was being cross-examined and plaintiff's counsel, for the purpose of affecting her credibility, asked if she had been convicted of adultery at a designated time and place. When the court sustained the objection, plaintiff's counsel offered in evidence what he designated as a certified copy of the conviction, but the paper actually was a certified copy of a decree of divorce. The court strongly instructed the jury to disregard the question. We quote the following statements by the Wisconsin Supreme Court in this case, 191 Wis. at page 469, 211 N.W. at page 276: "* * * The entire incident was well dramatized and calculated to arouse in the minds of the jury a strong suspicion that the defendant Cooney was a person of loose morals and belonged to a class of persons whose statements are received with great caution and by many...