United States v. Sager

• Decision Date: 11 May 1931
• Docket Number: No. 344.,344.
• Citation: 49 F.2d 725
• Parties: UNITED STATES v. SAGER et al.
• Court: U.S. Court of Appeals — Second Circuit

49 F.2d 725 (1931)

UNITED STATES v. SAGER et al.

No. 344.

Circuit Court of Appeals, Second Circuit.

May 11, 1931.

Hornblower, Miller, Miller & Boston, of New York City (Harold H. Corbin, Edward J. Bennett, and George Wolf, all of New York City, of counsel), for appellant Sager.

Gilbert & Brandeis and George H. Combs, Jr., both of New York City (John W. Davis, David L. Podell, and Susan Brandeis, all of New York City, of counsel), for appellant Shalleck.

William E. Riseley, of New York City, for appellant Reynolds.

George Z. Medalie, U. S. Atty., of New York City (Leon Leighton and Seymour D. Altmark, both of New York City, of counsel), for the United States.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

The indictments here contain eight counts. The appellants were convicted as follows: Sager with bribing a juror while in service in the trial of a criminal case which he was defending, in violation of U. S. C. title 18, § 237 (18 USCA § 237), Criminal Code § 131; the appellants, Shalleck and Reynolds and Sager, of conspiring to offer and give a bribe to a juror in violation of U. S. Code, title 18, § 88 (18 USCA § 88), Criminal Code § 37; Sager of conspiring to defraud the United States of the impartial services of a court bailiff in violation of title 18, U. S. C. § 88 (18 USCA § 88). They were acquitted on all other counts.

The appellants were attorneys for the defendants in a criminal prosecution in the United States District Court for the Southern District of New York, and one John Cruz was a juror in the trial of that case. While the trial was proceeding, Cruz became ill on January 23, 1930. He was examined by a physician and ordered to be taken home in a taxicab, and was placed in charge of bailiff Wechsler. Sager telephoned his office to obtain a motorcar belonging to his client on trial to take Cruz home. The car was unavailable, and he thereupon gave Wechsler $5 to take "that poor devil home, and see that he gets a plate of hot soup as the doctor has ordered." Sager gave about $35 to this bailiff from time to time and about $30 more to others, moneys which he received from his client for expenses. On February 18, 1930, the jury returned from its deliberation to the courtroom to have evidence read. Cruz had asked in the jury room "for the last four pages of Hanson's testimony." While the stenographer was looking for these pages, appellant Shalleck, who had made a digest of the testimony page by page, said, "This will help you find the spot, the last page is 1492." "Turn to 1492 and go back four pages." The stenographer read pages 1435 to 1439 of Hanson's testimony but not the end of the entire testimony. After further deliberation, eleven voted for conviction, Cruz holding out for acquittal. But the jury returned and voted the defendants on trial guilty, and Sager asked to poll the jury. While this was being done, Cruz, when reached, said he had doubt as to the testimony. The court directed the jury to further consider the case, and, after further deliberation, the jury disagreed. The appellee offered proof establishing that, when Sager told the bailiff to take Cruz home and to get him a plate of hot soup, he said, "See what you can do for him; tell him somebody will be up to see him." Wechsler said Sager gave him $10 or $15, and he put the money in Cruz' coat. While Cruz and Wechsler were riding to the former's home, he described his poor home conditions and poverty. He also described himself and his family as "in a very bad situation." Wechsler then told Cruz that, if he would vote not guilty for the defendants, "they are nice people, they will help you out, they will get you a job and everything." Cruz said, "All right," and Wechsler then told him that "somebody would be up to see him and talk to him about the case." The next morning Wechsler spoke to Sager while in the corridor of the courthouse and reported to him what transpired with the promises he (Wechsler) made, and Sager stated he would carry them out. Wechsler said that that afternoon he walked over to Shalleck in the courtroom and told him Cruz had not found the $10 which he (Wechsler) had put in his pocket, whereupon Shelleck gave Wechsler a $10 bill, and said, "Give him this," and Wechsler went over and handed it to Cruz. Wechsler reported this to Sager. Three days later Cruz told Wechsler they had not been up to see him, and he would like to see them because he needed some money. Shortly afterward Wechsler met Reynolds in the lavatory in the courthouse and told him, "Cruz would like to have them come up to see him." Reynolds replied, "You tell Cruz we will see him later on." Later in his examination, Wechsler said Reynolds' words were, "You tell him we will see him after the case is over." Cruz was visited by one Conway on three different evenings. Each time he was given money, $50, $50, and $200, which he accepted, and was told to stick to "not guilty" and he was told: "Never give up. Another thing, if you have any doubt, and you think they are going to beat you, the other jurors, you ask the foreman to ask for the last four pages of Mr. Hanson's testimony." Conway was a bondsman and was known to Sager and Reynolds. Conway was not available for subpœna at the trial and not produced by the appellants. The appellee introduced testimony as to its effort to find him.

The first count charges the appellants "did offer, give and cause to be offered and given, from time to time, during the said trial, various sums of money in currency of the United States aggregating over three hundred dollars, to and for the benefit of the said John Cruz * * * and did from time to time during the said trial, offer, give and cause to be offered and given to the said John Cruz, promises of money, value and reward, with intent to influence the action, vote, opinion and decision of the said John Cruz, as a juror, * * *" and that the defendants were "well aware that the said John Cruz was serving as a juror therein and was authorized by the Law of the United States, to hear and determine, as such juror, the issues of fact in the said action," and it alleges that this was a violation of section 131 U. S. Criminal Code (18 USCA § 237). This states an offense under section 135 U. S. Criminal Code (18 U. S. C. § 241 18 USCA § 241), which forbids any attempt to influence jurors; it does not state an offense under section 131, which concerns bribing a judicial officer. The latter section forbids the offering or giving of money, value, or promise or agreement to any judge, judicial officer, or other person authorized to hear or determine any question, with intent to influence his act, opinion, or decision. Section 131 is entitled "bribery of judicial officer." A juror is not within this section. Section 135 is entitled "Attempting to influence * * * juror, or officer." Both sections became effective March 4, 1909. Congress did not intend to enact both statutes at the same time for the same offense or purpose. While a juror becomes a servant of the United States while in its service, he is not a judicial officer. The penalties to be imposed on guilty defendants under these statutes are different. Section 131 carries the penalty of $20,000 fine and 15 years' imprisonment; section 135, $1,000 fine and one year imprisonment. Sager received a sentence of two years on this count.

While the charge contained in the count is sufficient to charge a violation of section 135, a retrial may not be had of the charge of bribing a juror. Count 3, setting forth such a charge, was dismissed at the end of all the proof on appellants' motion. It would now constitute a double jeopardy and be contrary to law to retry the appellant on this count. The issue submitted to the jury by the court below was given under instructions as to a violation of section 131 as the applicable statute, and, since that instruction was erroneous and the statute not applicable, a reversal of this count is necessary. The count will be dismissed.

The second count charges:

"And the Grand Jurors aforesaid on their oath aforesaid; do hereby reaffirm, reallege and incorporate, as if herein set forth in full, all the allegations in paragraph I of the first Count of this Indictment, and do further upon their oath present:

"That heretofore and at and after the commencement of the said trial, and before the court charged the jury therein, the defendants herein, to wit, Arthur N. Sager, Joseph Shalleck and Edward Reynolds, being then and there attorneys and counsel for the said Charles Beadon and certain other defendants in the said trial, did in the Southern District of New York, conspire with each other and with the said John Cruz, and the said Murray Wechsler, and with divers other persons to the Grand Jurors unknown, to commit an offense against the United States, to wit, to offer and give, and cause to be offered and given, from time to time during the said trial, various sums of money, and promises of money, value and reward, to and for the benefit of the said John Cruz, with intent to influence the action, vote, opinion and decision of the said John Cruz, as a juror in the said trial of the said action, and with intent to cause him to determine therein unfavorably to the United States questions and matters which would come before him for determination as such juror, said defendants, Arthur N. Sager, Joseph Shalleck and Edward Reynolds being at the times of such conspiracy and throughout the said trial, well aware that the said John Cruz was serving as a juror therein, and was authorized by the Law of the United States, to hear and determine as such juror, the issues of fact in said action."

"After the formation of such conspiracy and in order to effect the object thereof, the following overt acts were done."

This count alleges concert between several intended givers of a bribe and the intended taker of the same bribe. This concert of givers and plurality of agents...