United States v. Potash, 137.

• Decision Date: 26 May 1941
• Docket Number: No. 137.,137.
• Citation: 118 F.2d 54
• Parties: UNITED STATES v. POTASH et al.
• Court: U.S. Court of Appeals — Second Circuit

118 F.2d 54 (1941)

UNITED STATES v. POTASH et al.

No. 137.

Circuit Court of Appeals, Second Circuit.

March 10, 1941.

Writ of Certiorari Denied May 26, 1941.

Paul O'Dwyer, of Brooklyn, N. Y. (Kenneth E. Walser, of New York City, of counsel), for appellants.

John T. Cahill, U. S. Atty., of New York City (Jerome Doyle and Peter J. Donoghue, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

Writ of Certiorari Denied May 26, 1941. See 61 S.Ct. 1103, 85 L.Ed. ___.

SWAN, Circuit Judge.

The appellants were tried and convicted under an indictment charging them and others, who were acquitted, with conspiracy to obstruct justice and corruptly to endeavor to influence and intimidate witnesses in a criminal anti-trust case then pending in the district court for the southern district of New York, contrary to the statute, the text of which is printed in the margin.¹ Originally there were six appellants, but the appeal of Karpouzas has been discontinued. Of the remaining five, three were defendants in the anti-trust prosecution, and of these Potash and Winogradsky were convicted and Kochinsky was acquitted of that charge. The other appellants, Vafiades and Hatios, were neither defendants nor witnesses in the anti-trust case. Upon the indictment in the case at bar there was a prior trial which resulted in the jury being discharged on June 28, 1940, without having returned a verdict. This fact was alleged in a plea of double jeopardy filed just before the commencement of the present trial, which began on July 2, 1940. The overruling of this plea constitutes the appellants' first assignment of error.

They contend that a plea of double jeopardy must be sustained unless the reason for discharging the jury before verdict is entered upon the record. From the docket entries of June 28th nothing appears except that the jury resumed its deliberations at 10 A. M. and "at 12:45 P. M. the jury is discharged and mistrial ordered." But from the stenographic minutes of the proceedings had on June 28th, which the appellants appended to their plea in support thereof, it appears that only eleven jurors returned to the court room at 12:45 P. M. and that the trial judge expressed regret "about the outcome of this" and stated that "under the circumstances" the only thing he could do was to discharge the jury with the thanks of the court. The inference is obvious that the mistrial was ordered because one of the jurors had become incapacitated to continue with the case before the jury had completed its deliberations. In overruling the plea of double jeopardy Judge Goddard stated that this is what he understood had happened and asked if such was not the fact. His inquiry elicited no denial from the defendants' counsel, who merely insisted that upon the record of the trial the plea should be sustained.

Since the appellants have found no federal authority supporting their technical contention, they argue that resort must be had to the common law, and they cite certain state court decisions which declare broadly that the essential facts upon which the discharge is based must be entered of record so that an appellate court may review the trial court's ruling as a matter of law. See Hines v. State, 24 Ohio St. 134, 139; State v. Allen, 59 Kan. 758, 760, 54 P. 1060; State v. Jefferson, 66 N.C. 309, 312; People v. Parker, 145 Mich. 488, 500, 108 N.W. 999; compare People v. Greene, 100 Cal. 140, 34 P. 630; People v. Disperati, 11 Cal.App. 469, 105 P. 617. Some of these cases arose under state statutes which expressly require the reason for the discharge to be entered on the minutes, as in Hines v. State, supra. But whatever the state law may be, in the federal courts the recognized rule is that discharging a jury before verdict is a matter within the sound discretion of the trial court. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, 154, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U. S. 263, 298, 12 S.Ct. 617, 36 L.Ed. 429. Granting that the exercise of such discretion may be reversed in a case of abuse, the burden should be on the appellant to show abuse. A defendant who pleads double jeopardy has the burden of proving his plea. Kastel v. United States, 2 Cir., 23 F.2d 156, 157, certiorari denied, 277 U.S. 604, 48 S.Ct. 600, 72 L.Ed. 1010. Here the appellants' plea incorporated the stenographic minutes which disclosed that only eleven jurors returned to the court room. The inference is plain that one of the jurors was incapacitated to continue. Under such circumstances the court had discretion to discharge the jury, even if both parties had consented (as they did not) to proceed with the reduced number. Gardes v. United States, 5 Cir., 87 F. 172, 177, certiorari denied 171 U.S. 689, 19 S.Ct. 884, 43 L.Ed. 1179. There was no error in overruling the plea of double jeopardy.

The appellants contend that there is not sufficient evidence of a common understanding to support the conviction of each of the appellants on a charge of conspiracy. As to Potash and Vafiades there can be no doubt of the sufficiency of the evidence. The witness Loukas testified to meetings and conversations with them in which they offered him a trip abroad at their expense and, failing in this, sought to persuade him to make "slips" in his testimony to be given in the anti-trust case. They also tried to get him to corrupt another witness, Soulounias. Perry also testified against them. As to Winogradsky Loukas testified to being addressed by him as "G-man" and told to decide whether to continue in the fur business or to work for the government; if he chose the latter, the union would cut off his supplies. Winogradsky and Potash proceeded to carry out this threat by recommending that a heavy fine be imposed upon Feil Fur Company for doing business with Loukas in violation of union rules. Testimony as to the part played by Hatios was given by Tzaras, who had been interviewed by the Federal Bureau of Investigation and indicated his willingness to testify in the antitrust case, although he was not called as a witness. Tzaras testified that while he was held at Ellis Island for deportation, Hatios told him that he could get out on bail if he "could do what Ben Gold² says." Tzaras' fiancee, Mary Athens, also testified that Hatios told her to influence Tzaras "not to go against Ben Gold, and if he says anything in this court that he will be marked as an informer down at the market."

It is argued that even if the proof be found sufficient as to concert of action between Potash and Vafiades, evidence is lacking that either Winogradsky or Hatios acted in conspiracy with them or with any other of the convicted defendants. While it is true that a common purpose must be shown, its existence may be proved by circumstantial evidence. Clune v. United States, 159 U.S. 590, 592, 16 S. Ct. 125, 40 L.Ed. 269; Marino v. United States, 9 Cir., 91 F.2d 691, 699, 113 A.L.R. 975. Such common purpose may readily be inferred between Winogradsky and Potash; as defendants in the anti-trust case they had a common interest in preventing Loukas from testifying and they cooperated in carrying out the threat to destroy his business with Feil. As to Hatios the case is less clear; but it is pertinent to ask why he had busied himself in endeavoring to suppress...