United States v. Semensohn

• Citation: 421 F.2d 1206
• Decision Date: 06 February 1970
• Docket Number: No. 102,33521.,103,Dockets 33118,102
• Parties: UNITED STATES of America, Appellee, v. Saul SEMENSOHN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

421 F.2d 1206 (1970)

UNITED STATES of America, Appellee, v. Saul SEMENSOHN, Defendant-Appellant.

Nos. 102, 103, Dockets 33118, 33521.

United States Court of Appeals, Second Circuit.

Argued September 17, 1969.

Decided February 6, 1970.

Vincent J. Favorito, Asst. U. S. Atty., Vincent T. McCarthy, U. S. Atty., for appellee.

Myron J. Greene, Howard R. Udell, New York City, for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges.

WATERMAN, Circuit Judge.

Appellant Semensohn, following a jury trial in the United States District Court for the Eastern District of New York, appeals his conviction upon both counts of a two count indictment. He was convicted of having knowingly and wilfully evaded military service by submitting false and fraudulent information to his local draft board in which it was stated that he was in a Reserve Unit when in fact he was not, and also of having knowingly and wilfully made a false statement bearing upon his classification for military service, both in violation of 50 U.S.C. App. § 462(a).

We reverse the conviction and remand the case for a new trial, for the accused, who took the stand in his own defense, was unfairly prejudiced by the cumulative effect of improper questions asked of him by the government attorney.

Semensohn took the stand in his own behalf so as to rebut the Government's evidence that he had "knowingly and wilfully" evaded military service. A witness for the prosecution, Paul Miller, had testified that he had been introduced to Semensohn in order to help him evade the draft. At this meeting Miller testified he explained that he would arrange to have a fraudulent DD-44 form submitted to the defendant's local draft board, and he represented that thereby appellant's classification would be changed to 1-D, making him ineligible for the draft.¹ The price for Miller's service was $1700, which amount defendant paid. Miller turned over information he had copied from Semensohn's draft card to a confederate, Solomon Gottfried. Gottfried was called as a government witness and testified that he filled out the DD-44 form in defendant's name, signed the alleged name of the Administrative Officer of a Reserve Unit, and mailed it to Semensohn's draft board. While in the service Gottfried had been a sergeant in charge of recruiting, was quite adept at filling out DD-44s and had carried his military skills into civilian life. Miller paid him $200 for every form sent to various draft boards. Gottfried testified, however, that he had never met or spoken with Semensohn nor sent him any papers for his signature.

On direct examination Semensohn testified that he was not aware of any irregularity connected with Miller's efforts on his behalf; that he believed he was actually in the Reserves; and that he had never seen a DD-44 form and had never given his benefactor any false information.

In an effort to impeach the defendant's credibility, the prosecutor asked on cross-examination: "Now, you were convicted of grand larceny, weren't you?" The defense objected to the asking of the question, and, during the ensuing bench conference, it appeared that Semensohn had pleaded guilty in a New York court to the crime of attempted grand larceny in the third degree, a class A misdemeanor, but had not as yet been sentenced on the plea, and had never even been charged with having committed the felony of grand larceny. The objection to the question was consequently sustained, but a defense motion for a mistrial based upon it was denied.

It is settled that in a trial a witness's acts of misconduct are not admissible to impeach his credibility unless the acts resulted in the obtaining of a conviction. It is also settled law that a conviction does not become a final conviction until sentence has been imposed and until the time for an appeal from the judgment has expired. Newman v. United States, 331 F.2d 968, 972 (8 Cir. 1964), cert. denied, 379 U.S. 975, 85 S. Ct. 672, 13 L.Ed.2d 566 (1965); Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124, 126 (1958); Beasley v. United States, 94 U.S.App.D.C. 406, 218 F.2d 366, 368-369 (1954), cert. denied, 349 U.S. 907, 75 S.Ct. 584, 99 L. Ed. 1243 (1955); Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45, 47 (1949). As was said in Campbell v. United States, supra at 47:

If the judgment of conviction is later reversed, the defendant has suffered, unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction.

In the case at bar, the defendant's former misdemeanor conviction lacked the certainty and finality to warrant its prejudicial use against him at trial even if the prosecutor's question had referred to it, for, though Semensohn had pleaded guilty to the misdemeanor charge, he had not been sentenced and could have sought to withdraw his plea prior to sentencing.

The Government concedes its error, but maintains that any prejudice created by the improper reference to a prior act of misconduct was cured by the court's prompt statement to the jury:

Gentlemen of the Jury, I have considered the last question that was asked and have determined that it was an improper question. It is a rule of law that you can\'t show guilt of one charge by guilt or innocence of a different charge and you are to pay no attention to the question that was asked. Just treat it as if it did not exist on the record.

A judge's corrective statement will rarely completely cure the prejudicial damage created when improper information reaches the ears of the jury. "Prejudices which are so easily aroused are not thus so readily expunged." State v. Stago, 82 Ariz. 285, 312 P.2d 160, 161 (1957). More strongly put, Mr. Justice Jackson said: "The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (concurring opinion). Cf. Bruton v. United States, 391 U.S. 123, 129, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968). Of course corrective statements must be considered within their context, for some trial errors have only a marginal prejudicial impact when viewed against the background of the case as a whole and thus may be cured by appropriate instructions. In the present case, however, the issue is presented as to whether the prosecutor's error was harmless enough to be disregarded, or whether, despite the corrective admonition, it affected the substantial rights of the accused. Fed.R.Crim.P. 52(a). Before an error of this sort can be considered harmless the prosecution must have proved "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). And the converse of this rule is that error is not harmless if "there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).

Whether the corrective charge in the circumstances of this case rendered the prosecutor's improper question harmless depends on the degree of initial prejudice the asking of the unanswered question created in the minds of the jurors, the quality and forcefulness of the corrective charge as...