United States v. Moran, 140

Decision Date25 February 1952
Docket NumberDocket 22207.,No. 140,140
Citation194 F.2d 623
PartiesUNITED STATES v. MORAN.
CourtU.S. Court of Appeals — Second Circuit

Joseph Leary Delaney, New York City, Henry G. Singer, Brooklyn, N. Y., and Peter J. Donoghue, New York City, on the brief, for appellant.

Myles J. Lane, U. S. Atty., New York City, Eugene F. Roth, Chief, Criminal Division, and Thomas F. Burchill, Jr., and Norman S. Beier, Asst. U. S. Attys., all of New York City, of counsel, for appellee.

Before SWAN, Chief Judge, and CHASE and FRANK, Circuit Judges.

SWAN, Chief Judge.

The appellant was convicted of violating the perjury statute, 18 U.S.C.A. § 1621, in testifying falsely to a material matter before a duly created subcommittee of the United States Senate's Special Committee to Investigate Organized Crime in Interstate Commerce.1 The appellant's testimony was given in New York City on March 16, 1951 before a subcommittee of which Senator Kefauver was chairman. Before this subcommittee Moran testified that while he was First Deputy Fire Commissioner a man named Louis Weber had visited him "possibly three" times. "There might have been one or two more than that. But my recollection is there would be about three." This testimony, alleged to be knowingly false, formed the only count submitted to the jury, the court having ruled that the prosecutor must elect on which of the three counts of the indictment to proceed. The jury returned a verdict of guilty, and the court imposed the maximum sentence of five years imprisonment and a fine of $2,000.

Upon his appeal the defendant contends (1) that the trial was unfairly conducted, (2) that irrelevant and prejudicial evidence was erroneously admitted, (3) that the number of Weber's visits was not a "material matter," (4) that the proof was insufficient under the special rule applicable in perjury trials, and (5) that the alleged perjury was not committed before "a competent tribunal."

The trial began May 3, 1951. The appellant's first claim of unfairness is the court's refusal to grant a motion to postpone it until October. The case was originally set for trial on April 19, 1951. At the request of defense counsel it was delayed to May 3rd. On May 1st the Senate Committee released for publication in the press a report which mentioned Moran numerous times. Because of this report and the wide publicity by radio and television given to the subcommittee hearing at which Moran testified, counsel urged that it would be impossible to get a jury uninfluenced by such unfavorable publicity, and moved that the trial be put over to the October term. No change of venue was requested. The motion was denied. Neither the Committee's report nor the newspapers' comments on it are in the record, so that we cannot judge whether they supplied any basis for counsel's apprehension. But the selection of the jurors on the voir dire showed conclusively that his apprehension was unjustified. Only 27 talesmen were questioned in obtaining a jury satisfactory to both sides. Of the 12 jurors selected only two had read anything about the case in the newspapers, and two had seen on television part of the subcommittee hearings but not any part related to Moran. There was no abuse of discretion in denying defendant's motion to postpone the trial.

The second claim of unfairness relates to alleged prejudicial statements made by the prosecutor in his opening to the jury. No objection was made to any of the prosecutor's remarks at the time, but when the Government rested its case, the defendant moved for a mistrial because "there has been no attempt to prove certain inflammatory statements made by the prosecutor."

When asked by the court to be more specific counsel referred to remarks about "this policy business" and the relationship between "the slimy underworld and the politicians." The subject of an alliance between criminals and politicians was first mentioned by the prosecutor in describing the scope of the Senate Committee's investigation. Proof on that subject was presented. In our opinion the opening statement did not exceed the bounds of propriety. Assuming that despite the failure to register timely objection, the defendant could move for a mistrial, we cannot say that when the opening was made the prosecutor did not intend to prove the statements he made. Compare United States v. Lanza, 2 Cir., 85 F.2d 544, 548, certiorari denied 299 U.S. 609, 57 S.Ct. 235, 81 L.Ed. 449. In any event, we regard any possible prejudice from the opening as swept away by the court's specific charge, at the defendant's request, that "Any statements made by counsel unless supported by evidence are not to be considered by you in your deliberations in this case."

The appellant next contends that error was committed in receiving evidence of the defendant's intimate acquaintance with former Mayor O'Dwyer and of Weber's convictions of "policy" gambling in 1927 and conspiracy in 1938. Counsel argues that such proof was offered solely to besmirch the defendant and violates the rule that an attack upon a defendant's character is not permitted unless he has chosen to place his reputation or character in issue. But counsel misconceives the purpose of this evidence. It was not character evidence; it was relevant to prove that Moran was a man in high influential public office and that Weber was a man convicted of "policy" activities. They had known each other for many years. Such a relationship tended to show the materiality of the statements made to the subcommittee investigating the link between politics and crime, and establish a motive on the part of Moran for minimizing the number of Weber's visits to him.

Appellant also says that testimony by Mr. Halley and Mr. Klein, counsel for the subcommittee, relating to the scope of the Committee's authority to investigate organized crime was erroneously admitted. The Senate Resolution itself was the final authority, of course, but this testimony showed in concrete terms what the Committee was trying to do and the scope of its investigations. As such it was relevant and competent. The appellant also says that the jury should not have heard this testimony because the issue of materiality was for the court alone, but he did not object to the testimony on this ground. The appellant objects that in defining the scope of the Committee's activities Mr. Halley referred to "extortion, waterfront racketeering, murder and...

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39 cases
  • United States v. Handy, 257.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 9 Junio 1955
    ...2 A.2d 736; United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666, at pages 668, 669, particularly apposite; United States v. Moran, 2 Cir., 1952, 194 F.2d 623, at page 625; Allen v. United States, 7 Cir., 1925, 4 F.2d 688, at pages 695, 699; see Reynolds v. United States, 98 U.S. 145, 155......
  • United States v. Marchisio
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Abril 1965
    ...or dissuade the grand jury from pursuing its investigation * * *." Carroll v. United States, supra, 16 F.2d at 953. See United States v. Moran, 194 F.2d 623, 626 (2 Cir.), cert. den. 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362 (1952). Here the questions asked of appellants were aimed at disc......
  • Stewart v. United States, 12944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 18 Abril 1957
    ...jury as to the function and purpose of argument. For cases recognizing this principle see Dunlop v. United States, supra; United States v. Moran, 2 Cir., 194 F.2d 623, certiorari denied, 1952, 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362; Baker v. United States, 8 Cir., 1940, 115 F.2d 533; Da......
  • United States v. Rose, 12217.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 10 Julio 1953
    ...a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation. United States v. Moran, 2 Cir., 1952, 194 F.2d 623, at page 626. It is not negatived by the fact that a truthful answer would not have made the inquiry more successful. United Stat......
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2 books & journal articles
  • Congressional investigations: politics and process.
    • United States
    • American Criminal Law Review Vol. 44 No. 3, June 2007
    • 22 Junio 2007
    ...483 F.2d 1082, 1088 (5th Cir. 1973); accord United States v. Icardi, 140 F. Supp. 383, 388 (D.D.C. 1956). (61.) United States v. Moran, 194 F.2d 623, 626 (2d Cir. 1952); see also United States v. Anfield, 539 F.2d 674, 678 (9th Cir. (62.) See, e.g., United States v. Norris, 300 U.S. 564, 57......
  • Self-incrimination and Congressional Hearings - Roberto Iraola
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 54-2, January 2003
    • Invalid date
    ...and the trial court rightly instructed the jury to that effect."). 119. Note, supra note 65, at 683-84. See United States v. Moran, 194 F.2d 623, 627 (2d Cir. 1952) ("Opinions may differ as to whether [television cameras and photographers at hearing are] better calculated to achieve publici......

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