United States v. Malinsky

• Decision Date: 03 April 1957
• Citation: 153 F. Supp. 321
• Parties: UNITED STATES of America v. Morris MALINSKY, Louis Rapkin, Irving Greene, Albert Pfeffer, Milton Tillinger, David Lustigman, Isidore Schwartz, Robert Barbieri, Robert Felt, Joseph Meglino, Sam Vogel, Sam Stolzenberg, also known as "Sam Stowe", Defendants.
• Court: U.S. District Court — Southern District of New York

153 F. Supp. 321

UNITED STATES of America v.Morris MALINSKY, Louis Rapkin, Irving Greene, Albert Pfeffer, Milton Tillinger, David Lustigman, Isidore Schwartz, Robert Barbieri, Robert Felt, Joseph Meglino, Sam Vogel, Sam Stolzenberg, also known as "Sam Stowe", Defendants.

United States District Court S. D. New York.

April 2, 1957.

On Motion to Disqualify April 3, 1957.

Paul W. Williams, U. S. Atty., New York City, for the Government, by Myles J. Ambrose, and William S. Lynch, Asst. U. S. Attys., New York City.

Joseph A. Solovei, Brooklyn, N. Y., for Morris Malinsky.

Jacob P. Lefkowitz, New York City, for Louis Rapkin and Irving Greene.

Maurice Edelbaum, New York City, for defendantsAlbert Pfeffer and Isidore Schwartz.

Harold O. N. Frankel, New York City, for defendantsMilton Tillinger and David Lustigman.

Harry Sokel, New York City, for defendantJoseph Meglino.

Meyer Licht, New York City, for Sam Vogel.

Joseph Panzer, New York City, for Sam Stolzenberg.

HERLANDS, District Judge.

The defendants have moved for a mistrial under the circumstances that will now be detailed.

This trial commenced on March 26, 1957, with the voir dire of the jury panel.Proceedings incidental to the selection of the jury continued on March 27, 28, 29, and April 1.On the morning of April 1st the jury, including four alternate jurors, was selected and impaneled.The prosecutor and defense attorneys then made their opening statements.

The Government's opening took place in the latter part of the morning, concluding at about 12:20 p. m. After the luncheon recess, and commencing at 2:00 p. m., defense counsel made their opening statements.Immediately upon the conclusion of such openings the Government called its first witness, one Joseph Levine.

He was being examined on direct examination and had given testimony that runs from pages 53 to 58 of the trial record when he suffered a heart attack.This occurred at about 2:46 p. m. His collapse took place in open court in full view of the jury while he was on the witness stand.Court was recessed.The jury was dismissed for the day.Levine was given emergency treatment and was carried out of the courtroom on a stretcher and brought by ambulance to a hospital.This morning the Assistant United States Attorney advised the Court and defense counsel that according to the information given to the Assistant United States Attorney by the hospital doctor, Levine had suffered a heart attack, that Levine had twice before suffered attacks of coronary thrombosis, that Levine has been or is being transferred to some private hospital, and that the preliminary prognosis, which was not detailed, would indicate that at least one week's hospitalization would be required.The probability is that he will require considerable more hospitalization in view of the fact that this is his third heart attack.The Government announced that it is ready to proceed with the trial with other witnesses.

The defense has moved for a mistrial, and this motion has been made in behalf of all of the defendants.It has been argued at length by all counsel.The legal principles which govern this situation are clear.

Wigmore, Third Edition, Volume 5, Section 1406, states that any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, is equivalent to unavailability and that this has been almost universally recognized by the courts.Wigmore also states, Volume 5, Section 1390, that where the witness' illness intervenes to prevent or to curtail cross-examination, that precludes the defendant from his opportunity to cross-examine the witness and the direct examination should be stricken out.Wigmore states:

"Principle requires in strictness nothing else.But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss.Courts differ in their treatment of this difficult situation * * *"

Among the cases cited by Wigmore, Section 1390, Note 4, at page 111, is Matter of Mezger's Estate, 1935, 154 Misc. 633, 278 N.Y.S. 669.In the Mezger case the main witness in an accounting proceeding became so incapacitated as to prevent her subsequent appearance for further cross-examination.It appeared that the witness suffered this stroke on the witness stand and became so incapacitated thereby that the attorney who had produced her stated to the Court and opposing counsel that he would not imperil her by ever producing her for further cross-examination.A motion was made to strike all of the direct testimony of this witness from the record.This motion was granted with respect to the witness' entire testimony.

Surrogate Feely in his opinion collected all of the authorities dealing with this question.Such authorities include People v. Sugarman, 248 N.Y. 255, 162 N.E. 24;andPeople v. Cole, 43 N.Y. 508.After reviewing the decisions Surrogate Feely said in 154 Misc. at page 637, 278 N.Y.S. at page 674:

"The benefit of any doubt should be given to the cross-examiner.His right to cross-examine is guaranteed by the provision for due process of law; and as a practical matter it has been the experience of many familiar with trial work that sometimes the truth is discovered only by the very last question * * *."

In the federal courts substantially the same rule would apply.In the present casewe do not have a situation where a cross-examination had begun, but was unfinished at the time of the witness' illness and where the purposes of cross-examination "have been substantially accomplished," as was the case of Jaiser v. Milligan, D.C.Neb.1954, 120 F.Supp. 599, 604.A motion to strike out the direct examination would, of course, be plainly justified and would present no problem.The more serious question concerns the defense motion for a mistrial.

The cumulative effect of the following factual features in the present case is decisive:

1.The prosecutor's opening mentioned Joseph Levine ten times by name and stressed the significance of his prospective testimony.No other witness was mentioned by name in the opening.

2.Joseph Levine was the very first witness called by the prosecution.He began to testify shortly after the opening statements had been concluded.Thus there was no interval of intervening testimony between the conclusion of the opening statements and the giving of the testimony by Levine.

3.Levine suffered a stroke in full view of the jury while on the witness stand and these circumstances dramatized and underscored his appearance on the stand and would continue to dramatize and underscore his absence as a prosecution witness in the future in this particular trial or with this particular jury.

4.His direct examination was in its initial stage.There was no cross-examination or opportunity for cross-examination by the defendants.

5.It could not be safely predicted that an instruction given by the Court to the jury to disregard the references to Levine in the prosecutor's opening would achieve the desired result of eradicating the prosecutor's remarks.This Court is cognizant of the doctrine prevailing in this circuit and recently reiterated in the Paoli case(United States v. Delli Paoli), 2 Cir., 1956, 229 F.2d 319, affirmed352 U.S. 232, 77 S.Ct. 294, 1 L. Ed.2d 278, that it is to be presumed and assumed that trial juries will follow the instructions of the trial judge.

In the present case it is extremely likely that some of the jurors would entertain the thought that the Government might have been able to prove certain facts but for the illness of the witness Joseph Levine, and the jury might well remember the substance of the prosecutor's remarks concerning Levine as made in the prosecutor's opening statement.The remarks of the prosecutor with specific reference to Levine are contained at pages 17 to 20 of the trial record.An examination of the trial record, pages 17 to 20 shows that frequent and important references were made to Levine.He is mentioned in the indictment as a co-conspirator.The opening statement by the prosecutor linked Levine with the defendants, and as already pointed out, no other witness was mentioned by name.Levine's acts of participation in the conspiracy were described in the opening, and the prosecutor stated, "Levine, the former business manager of the Association and president of this union, will testify for the Government in this case."

It has been estimated by counsel that this trial will take approximately six weeks.Levine was the very first witness.It is true that the selection of the jury required several days of court sessions, but there has been no other investment of time and expense in the trial itself on the part of the Court or prosecution and the defense.Rather than devote six weeks to a trial which might eventually be frustrated by virtue of the possible prejudicial error of continuing with the same jury which witnessed all of the foregoing events, it would be sound judicial administration to grant the defendants' motion for a mistrial and to proceed immediately with the selection of a new jury.

Accordingly, the defendants' motion for a mistrial and for the withdrawal of a juror is granted and the case will be ordered to proceed to trial immediately with the selection of a new jury.

On Motion to Disqualify

The defendants have moved under Title 28 U.S.C.A. § 144, to disqualify me from sitting as a judge in this case on the ground of personal bias and prejudice.The motion is denied for the reasons hereinafter set forth.

Section 144 provides as follows:

"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further

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