United States v. Schiller

• Decision Date: 06 March 1951
• Docket Number: No. 133,Docket 21861.,133
• Citation: 187 F.2d 572
• Parties: UNITED STATES v. SCHILLER et al
• Court: U.S. Court of Appeals — Second Circuit

187 F.2d 572 (1951)

UNITED STATES v. SCHILLER et al

No. 133, Docket 21861.

United States Court of Appeals Second Circuit.

Argued December 11, 1950.

Decided March 6, 1951.

Graubard & Moskovitz, for defendant-appellant Schiller; Boris Kostelanetz, of counsel.

Patterson, Belknap & Webb, New York City, for defendants-appellants Julius Hoffman and First Terrace Gardens, Inc.; Robert P. Patterson and Ambrose L. Cram, Jr., New York City, of counsel.

Irving H. Saypol, U. S. Atty., New York City, for plaintiff-appellee; Harold J. Raby, New York City, of counsel.

Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The indictment was in one count and charged that Schiller, Hoffman and First Terrace Gardens, Inc., a New York corporation of which Hoffman was the President, conspired to defraud the United States, in the exercise of its governmental function of administering the Emergency Rent Control Program justly and free from corruption and improper influence, (1) by submitting to the Housing Expediter false petitions as to the amounts of management expenses and fees incurred by First Terrace Gardens; (2) by having Hoffman and First Terrace Gardens pay to Schiller $2,000 with intent to influence his action in connection with the petitions and to induce him to secure approval of requested rent increases, (3) by having Schiller accept the $2,000 and obtain approval of the requested rent increases, though Schiller would know that Hoffman and First Terrace Gardens would not be entitled to them.

The question as to the payments concededly made by Hoffman to Schiller was whether those payments (were they loans or gifts) were made to influence the official conduct of Schiller, who was Area Rent Control Attorney. There plainly was enough evidence in support of the indictment to go to the jury, who found all three defendants guilty. The defendants all rely on the following errors: (1) in the judge's charge; (2) in the cross-examination of Schiller. Schiller in addition claims error, (3) because of a refusal of the trial court to order the return and suppression of his diary entries which were received in evidence, (4) because of a denial to him of a pre-trial inspection of the diary.

After a charge by Judge Coxe, to which no objection was made, the jury returned to the courtroom and asked the court for a definition of "conspiracy." The judge reread the portion of his original charge embodying a definition of conspiracy which he had there given. Then, following an instruction requested by the defendants concerning the jury's duty to acquit if not satisfied beyond a reasonable doubt, he gave the following additional instructions:

"The Court: * * * a conspiracy, such as this conspiracy, is shown by piecing together the facts and the evidence, if it is found there was — and you have all the evidence on that point — a common understanding, a concert of action as to the things to be done. That can be pieced together by inferences from the facts as to whether there was that. And here you have heard the evidence, particularly as to the passing of this money at these particular times, and that together with all of the other facts in the case and all the testimony is something which should be considered by the jury for the purpose of determining whether there was such a conspiracy."

Appellant's counsel argue that the foregoing supplemental instruction was in effect a statement by the trial judge of his opinion that Hoffman and Schiller were guilty of the conspiracy charged and that the jury had all the necessary evidence of that conspiracy. The supplemental instructions which we have quoted did not bear such an interpretation. The judge nowhere said that in his opinion the alleged conspiracy had been established. At most he only omitted the word "alleged" which would have been regarded by any rational jury as implied. His supplemental statement is to be read in connection with his original charge, in which he told the jury that they were "the sole judges of the facts and of the inferences derived from the facts and of the credibility of the witnesses." Moreover, appellants' counsel never made it clear to the judge that they were raising any such linguistic objection to his statements as they now attempt.

The appellants next object to the cross-examination of Schiller who when on the stand in his own behalf and after an objection which was overruled, admitted that in or about March 1948 he had been paid $500 by a prospective tenant, in return for which he was to procure, and did procure, an apartment for her. He also admitted another payment of $500 by another prospective tenant, for a similar service, in March 1949. These questions had been preceded by a question as to whether the acts enumerated above were in violation of the New York Penal Law, Section 965, which was excluded by the judge. It appears that Schiller had previously pleaded guilty to such a violation of the New York Penal Law, but that no judgment had been entered against him on this plea.

It is claimed that the previous question brought before the jury Schiller's plea of guilty, which was not a proper subject of attack when no judgment had been entered thereon. We think this argument confuses proof of conviction of crime to contradict a witness who has denied it with a general cross-examination of a witness on matters affecting his credibility. Although the government would have been bound by a response dealing only with credibility unless it had a court record of conviction to offer, the cross-examination was permissible because it dealt with disreputable or criminal acts tending to impugn Schiller's veracity. Even if we should assume that a defendant should be treated with more leniency than an ordinary witness in attacking collaterally his veracity by proof of prior crimes, see III Wigmore on Evidence (3rd Ed.) §§ 891(2), 983(4), the acts which Schiller here confessed were properly proved to show that his motive in accepting loans from his co-defendants was not innocent. His testimony that he had received commissions from prospective tenants for services which were in violation of a New York penal law prohibiting excessive charges in connection with rental agreements tended to show that he had an intention to use his office in disregard of the rental control regulations in situations like the case at bar. As Professor Wigmore says: "It is not here necessary to look for a general scheme or to discover a united system in all the acts, the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent." II Wigmore on Evidence (3rd Ed.) § 302.

Schiller makes the further personal objection that there was an unlawful search and seizure of two diaries which he kept. These diaries, while published by the Real Estate Board of New York and containing some purely personal matters, were also...