United States v. Simon, 7562.

• Decision Date: 16 May 1941
• Docket Number: No. 7562.,7562.
• Parties: UNITED STATES v. SIMON.
• Court: U.S. Court of Appeals — Third Circuit

119 F.2d 679 (1941)

UNITED STATES v. SIMON.

No. 7562.

Circuit Court of Appeals, Third Circuit.

April 1, 1941.

Rehearing Denied May 16, 1941.

Stephen P. Piga, of Jersey City, N. J., for appellant.

Irwin L. Langbein, of Washington, D. C., for appellee.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

The appellant was a practicing physician in the State of New Jersey for some years. He was indicted for violation of the Harrison Narcotic Act, 26 U.S.C.A. Int.Rev. Code, § 2550 et seq., in that as a physician who had duly registered and paid the taxes required by Section 2 of the act, 26 U.S.C. A. Int.Rev.Code, § 2554, he unlawfully and knowingly sold to Mildred McDermott one hundred sixty-three quarter grain tablets of morphine, not in pursuance of any written order on the form issued for that purpose by the Commissioner of Internal Revenue and not in good faith and not in the course of his professional practice only. The appellant was found guilty upon the single count of the indictment and was sentenced to a prison term of eighteen months. He appeals and presents three grounds any one of which in his view constitutes reversible error and entitles him to a new trial. We will deal with them seriatim.

The District Attorney in his opening statement to the jury said, "The facts very briefly are these. Mildred McDermott, who will testify, is a narcotic addict and had been acquainted with the defendant for a period of approximately five years, during which time she purchased narcotic drugs from this defendant." Objection was made by the appellant to this statement, followed by a motion for the withdrawal of a juror and the declaration of a mistrial on the ground that the District Attorney had addressed the jury on crimes not laid in the indictment. The trial judge stated to the jury that in his opinion the District Attorney's statement did "not charge the defendant with having sold drugs in violation of the Federal Statute". The trial judge went on to say, "If you gather from that statement the impression that he the appellant was charged with selling drugs in violation of the Statute you will dismiss it from your mind because this defendant is not charged with that violation of the Statute. You may dismiss that statement from your minds. In my opinion he the District Attorney did not so state. The motion is overruled."

We do not regard the statement made by the District Attorney as imputing a crime to the appellant. We are of the opinion that ordinarily jurors would not so construe it. If the members of the jury in the case at bar did so construe it we are of the opinion that the trial court's prompt and emphatic instruction to the contrary relieved the situation of any impropriety precisely as if there had been an improper question asked and upon objection the trial court had directed the jury to disregard the question. Cf. Weiner v. United States, 3 Cir., 20 F.2d 522. See also United States v. Penn, 7 Cir., 115 F.2d 672; Blockburger v. United States, 7 Cir., 50 F.2d 795, 798, affirmed 284 U.S. 299, 52 S.Ct. 180, 79 L. Ed. 306. It must also be borne in mind that the statement made by the District Attorney was borne out by evidence subsequently adduced without any objections by the appellant. Since such evidence was clearly admissible we can perceive no reason why a brief reference to it, as part of the background of the case, should not have been made in the opening statement of the District Attorney.

The second point raised by the appellant requires full discussion. One of the defendant's witnesses, a Dr. Gerber, a physician of high standing, was asked the following questions upon direct examination:

"Q. In your observation of Dr. Simon, is his conduct that of an ethical physician? A. As far as I know he has always been an honest gentleman, a good student, and an ethical practitioner.

"Q. And you have had occasion to observe him under you at the hospital? A. Yes, he comes to my clinic Thursday afternoons, and I also see him at conferences on Friday afternoons and evenings."

On cross-examination Dr. Gerber was asked the following questions:

"Q. Now, Doctor, how long have you known Dr. Simon? A. I think since he came to the Post Graduate about 4½ to five years.

"Q. And your association with him has been limited to your association at the clinic? A. Yes.

"Q. You do not know his reputation for ethical practice in the community in which he lives, do you? A. In a roundabout way, yes, I had a little opportunity to observe that through a casual consultation I had with Dr. Simon's patients in Passaic.

"Q. Do you know whether or not he had any previous police or criminal record in his community? A. I do not, but I am sure that he has not.

"Q. You were sure that he has not. A. No, I would not say that, but I am sure that he is not the type that would have.

"Q. Doctor, would you be surprised to learn that he was charged in 1933 with the crime of conspiracy, and that he was charged in 1934 with having performed an abortion?"

At this point counsel for the appellant interposed an objection. A short colloquy followed between the court and counsel for the United States and the defendant. The United States Attorney then stated, "The difficulty is this, I admit on the question of the doctor's previous arrest I should not have shown —". He was cut short by an objection and the court said: "Gentlemen of the jury, you will disregard that statement of the United States Attorney and should not be guided by anything but the testimony in the case." The court, further argument then seeming imminent, sent the jury to the jury room, and, after further discussion, the jury was returned to the box. The District Attorney then asked one further question of Dr. Gerber, as follows: "Q. Doctor, do you know the defendant's general reputation for ethics in the community in which he lives and practices?" Dr. Gerber answered: "A. I do not."

The appellant charges that the foregoing discloses a highly prejudicial error substantially affecting the right of the appellant to a fair trial. It will be noted that the attorney for the defendant did not ask for the withdrawal of a juror and for the declaration of a mistrial...