United States v. Lotsch

• Decision Date: 27 February 1939
• Docket Number: No. 63.,63.
• Citation: 102 F.2d 35
• Parties: UNITED STATES v. LOTSCH.
• Court: U.S. Court of Appeals — Second Circuit

102 F.2d 35 (1939)

UNITED STATES v. LOTSCH.^*

No. 63.

Circuit Court of Appeals, Second Circuit.

February 27, 1939.

Warren I. Lee, of New York City (Samuel L. Miller and Warren I. Lee, both of New York City, Arthur L. Burchell, of Brooklyn, N. Y., of counsel) for appellant.

Vine H. Smith, U. S. Atty., of Brooklyn, N. Y. (Frank J. Parker, of Brooklyn, N. Y., of counsel), for the United States.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This appeal comes up from a judgment of conviction upon three counts of an indictment for receiving commissions from borrowers from a national bank of which the accused was an officer (section 595, Title 12, U.S.Code, 12 U.S.C.A. § 595). The first count (the second in the indictment) alleged that on June 21, 1935, Lotsch, the accused, who was chairman of the bank's board of directors, received a commission of $2,500 from the borrower, "Aqua Systems Inc.", for a loan to that company of $25,000. The second count (the fifth in the indictment) was for receiving a commission of $650 for a loan of $6,500 to the Bushwick Cornice Works, on April 1, 1935; the third count (the sixth of the indictment) was for receiving $2,000 for a loan of $20,000 to the Plack Construction Company, on December 9, 1936. The evidence on the first count was that one, Kaestner, secretary and treasurer of the borrower, met Lotsch at an attorney's office in Manhattan, and that Lotsch agreed to procure for him a loan of $25,000, on condition that Lotsch should receive $2,500. The money was lent at a later interview, when three officers of the company were present — Kaestner, Peter and Beckwith. Kaestner and Peter each drew a cheque for $500 to his own order, which he endorsed and delivered to Lotsch: Beckwith drew, endorsed and delivered a similar cheque for $1,500. These three cheques were later returned by the bank to the borrower as paid vouchers. The second count was of substantially the same kind, except that one officer of the borrower drew a single cheque. The third count concerned a loan of $20,000, which the borrower's president, Plack, secured from Lotsch for a commission of $2,000. The payment in this case was in part by three cheques, aggregating $1,750, all drawn to the order of Plack, and endorsed by him and delivered to Lotsch in Brooklyn: to make up the balance Plack surrendered a personal note of Lotsch's for $2,500, on which $250 remained unpaid. The defense rests upon three points: first, that the counts were misjoined because they alleged three separate crimes: second, that there was not enough evidence to support the verdict: third, that the prosecutor misconducted himself in his address to the jury, and that the judge was partial and unfair to the accused during the trial.

There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused's conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. Hence it was the rule at common-law — certainly as to misdemeanors — that separate crimes could be joined in the court's discretion (Bishop's New Crim. Proc. § 452); and section 557 of Title 18, U.S.Code, 18 U.S.C.A. § 557, has made that doctrine applicable to felonies as well. (Indeed, that was probably also true at common-law so long as felonies and misdemeanors were not mixed in one indictment). Under that section "two or more acts or transactions of the same class of crimes" may be joined, if that can "properly" be done; that is, if the defendant can be fairly tried on all the charges at once. That rests in the discretion of the trial judge. Pointer v. United States, 151 U.S. 396, 400-404, 14 S.Ct. 410, 38 L.Ed. 208; Dolan v. United States, 8 Cir., 133 F. 440; Corbin v. United States, 5 Cir., 264 F. 659; Clifton v. United States, 54 App.D.C. 104, 295 F. 925 (semble). Here we can see no prejudice from joining the three charges: the evidence as to each was short and simple; there was no reasonable ground for thinking...