Petition for Writ of Certiorari — Projansky v. United States
Supreme Court brief1972
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— 22-390
MICHAEL GEIER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
STANLEY M. MEYER
66 Court Street
Brooklyn, New York 11201
(212) 834-8888
Attorney for Petitioner
TABLE OF CONTENTS
PAGE
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,,, ̃ ¹i kedmante sense 3
—:. — „ 3
Reasons for Granting the Writ ................. 9
PoinT I— The Government in spite of proper ob-
jection, was permitted more peremptory chal-
lenges than allowable by Rule 24(b) of the
Federal Rules of Criminal Procedure. The con-
viction herein was not according to law and was
violative of due process 9
PoiInT II— The appellant was not part of one over-
all conspiracy, but, at most, was a participant
in the third of a series of three separate con-
spiracies. The failure to sever his case deprived
. conc cscsccccscccecds 16
Point III— The action of the jury in considering
all of the evidence in the case to determine if
petitioner was part of the conspiracy was im-
ii
CASES CITED
Berger v. United States, 295 U.S. 78 ...........
Blumenthal v. United States, 332 U.S. 539 (1947)
Bustamante v. People, 183 Colo. 497, 297 P.2d 588
CRIED: kinks bw ken ²³²˙ÜꝛAAA¹·¹ -m. mgʒ.
%%% 6A ˙ꝗ]TJĩĩʃ oo eee anaes
Drew v. United States, 331 F.2d 85 (C. A. D.C. 1964)
Fonts v. State 8 Ohio, St. 98 (1857) ............
Foutch v. State, 100 Tenn. 334, 45 S.W. 678 (1898)
Gruenwald v. United States, 353 U.S. 391, 404
SE cis tacked eaeee ts baaddemiceeeend
Hanger v. United States, 398 F.2d 91, cert. den. 393
U.S. 1119, reh. den. 395 U.S. 971 ............
Hayes v. Missouri, 120 U.S. 68, 71 .............
Heald v. United States, 175 F.2d 878 (10th Cir.
F ccc
Kloss v. United States, 77 F. 2d 462 (8th Cir. 1935)
Kotteakos v. United States, 328 U.S. 750 (1946)
Mahan v. State, 10 Ohio 282, overruled on other
grounds (1940), Fonts v. State 8 Ohio St. 98
bed eee eln
McMahan v. United States, 424 F.2d 1216 (C. A. IIl.
need
Nelson v. State, 200 Tenn. 462, 292 S. W. 2d 727,
cert. den. 355 U.S. 271, 2 L.ed. 2d 257, 78 S.Ct.
/ AAA
New England Enterprises Inc. v. United States, 400
F.2d 58, 68 fn5; cert. den. 393 U.S. 1036 (ist Cir.
hp; ͤ TTT
Orfield, Trial Jurors in Federal Criminal Cases, 29
F. R. D. 43, 43-47, 53 (1962 ))))ũ:ꝛ eee
Pointer v. United States, 151 U.S. 396 (1894)
Regina v. Frost, 9 — . & P. 129, 187 (Eng. 1889)
eae v. People, 145 P.2d 656 (1961)
Rocha v. United *
U.S. 948 (th Cir.
Rogers v. United States, 334 F.2d 88, cert. den. 380
U.S. 915, reh. den. 380 U.S. 967 (C. A. Fla. 1964)
Savage & James v. State, 18 Fla. 909 (1882)
Schoeffler v. State, 3 Wis. 823 (1854)
State v. Anderson, 59 S. C. 229, 87 S. E. 820 (1901)
State v. Bertrand, 167 La. 878, 119 80.261 (1928)
State v. Bohanan, 64 Ohio App. 431 (1940)
State v. Dreany, 65 Kan. 292, Pac. 182 (1902)
tate v. Earle, 24 La. Ann. 38 (1872)
State v. Everage, 33 La. Ann. 120 (1881)
State v. Gay, 25 La. Ann. 472 (1873)
State v. Jones, 27 Wyo. 46, 191 Pac. 1075 (1920)
State v. Thornhill, 188 La. 762, 178 So. 343 (1937)
(Dictum) )
Swain v. Alabama, 380 U. S. 202, reh. den. 381 U.S.
Thogmartin v. United States, 313 F.2d 589 (C. A.
Iowa 1958)
United States v. Baker, 419 F. 2d 83, cert. den. sub.
United States v. Branker, 418 F.2d 378 (C. A. N. V.
United. me v. Farina, 281 F.2d 62 (2nd Cir.
United States v. Goss, 329 F.2d 180 (4th Cir. 1964)
United States v. Lopez, 420 F.2d 318, 317 (2nd Cir.
United. Sistas v. Marchant, 12 Wheat 480, 482
14 v. Marquez, 424 F. 2d 236 (C. A. N. V.
a
iv
PAGE
United States v. McGowan, 423 F.2d 413 (C. A. Va.
%% alas odeickon 24
United States v. Morello, 250 F.2d 631 (2nd Cir.
1J%%%[rtfA late Che tk 24
United States v. Plata, 361 F.2d 958, cert. den. 385
e ũ hmF . ok beece 24
United States v. Potts, 420 F.2d 964, cert. den. 398
Zn ß 14
United States v. Russano, 257 F.2d 712 (2nd Cir.
e 20
United States v. Santos, 385 F. 2d 43, cert. den. 390
eee 24
United States v. Schockley, 441 F.2d 1151 (C.A.
i ae ie ea laa neha nnn cache mae 24
United States v. Simon, 425 F.2d 796 (C. A. N. V.
r ea awe nn Mme 24
Vines v. State, 190 Tenn. 644, 231 SW2d 332
h A 13
Wiggins v. State, 69 Tenn. (1 Lea) 738 (1878) .... 13
Wiley v. State, 4 Blackf. 458 (1887) 777
IN THE
Supreme Court of the United States
October Term, 1971
No.
MICHAEL GEIER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
8
ww
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner prays that a writ of certiorari be issued to
review the judgment of the United States Court of Appeals
for the Second Circuit, entered on June 22, 1972, which
affirmed petitioner’s conviction in the United States District
Court for the Southern District of New York, rendered
September 17, 1971, convicting petitioner of one count
of conspiracy to manipulate the price of a listed security
in violation of 18 U.S.C. Section 371, one count of actual
manipulation and seven counts of mail fraud.
Opinion Below
The opinion of the United States Court of Appeals for
the Second Circuit has not been reported as yet but is re-
printed herein as Appendix A, infra.
J * li ti
The judgment of the United States Court of Appeals for
the Second Circuit was entered on June 22, 1972, and al-
though the petition is not filed within 30 days of said judg-
ment, a co-defendant, Irving Projansky, filed a timely peti-
tion on or about July 20, 1972, after a timely petition for
a rehearing was denied by the Court of Appeals on July 18,
1972. Another co-defendant, Gerald Leavitt also has filed
his petition herein.
The issues on those petitions for certiorari are substan-
tially identical with this one.
1. May the trial court grant the Government additional
peremptory challenges over the objection of the defendants
in violation of Rule 24 (b) of the Federal Rules of Criminal
Procedure?
2. Is a question preserved for review when there is a
timely objection at the trial level but the reasons stated are
not exactly the same as those stated on appellate review?
8. Was the jury properly instructed that they may take
into consideration all of the evidence in this case in deter-
mining whether particular defendant was a member of the
alleged conspiracy?
4. Whether appellant was deprived of due process of law
by the trial court’s failure to grant a severance in a claimed
multiple conspiracy situation.
3
Statutes Involved
§371. Conspiracy to commit offense or to defraud United
States
If two or more persons conspire either to commit
any offense against the United States, or to defraud
the United States, or any agency thereof in any man-
ner or for any purpose, and one or more of such per-
sons do any act to effect the object of the conspiracy,
each shall be fined not more than $10,000. or impris-
oned not more tha» five years, or both.
If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
Facts
This case was tried to a jury in the United States Dis-
trict Court, Southern District of New York, Hon. Morris
E. Lasker presiding. The trial lasted from February 23,
1971 until June 1, 1971, and the record comprised more
than 10,000 pages of testimony. The appendix in the Court
of Appeals was more than 7,000 pages and the exhibits at
the trial were approximately 2,700.
Mr. Geier was sentenced to six months in prison on the
conspiracy count, he received two years probation on an-
other and sentence was suspended on the remaining seven
counts.
Before the actual trial began, a question arose regarding
the selection of the jury because although the Court allowed
the defendants a total of sixteen challenges (there were
.
a
eight defendants on trial) it also permitted the Government
to have eight, two more than the amount prescribed in Rule
24 (b) of Federal Rules of Criminal Procedure (89, 95.
97), a ruling to which timely objection was taken (95, 97),
Counsel for one defendant stated :
Mr. Londin: With respect to your Honor’s ruling
as to peremptory challenges, of course there is a valid
requesting
and sixteen peremptories comes out to two peremp-
tories per defendant. The converse of that as to the
government, I don’t say it applies at all. There is no
valid reason for the government to require or to ob-
tain additional challenges. They are still one party
plaintiff to this case.”
He then added:
“I think it is appropriate for us to have obtained
additional peremptories, but as far as the govern-
ment is concerned and for the record I would respect-
fully except to the government’s obtaining additional
peremptories.”
All eight peremptory challenges were utilized by the Gov-
ernment (186: Aviles, 192: Rosenberg, 202: Davis, 208:
Perkus, 236: Bendet, 253: Curry, 263: Williams, 278:
Bryant).
The case at bar involved an alleged long and complicated
scheme to manipulate the price of the capital stock of Her-
cules Galion a scheme which began in July, 1965 and ended
in March, 1966. The evidence showed a series of meetings
* References are to pages of Joint Appendix. References prefaced
with letter “R” : refer to record on appeal.
occurring all during the Fall and Winter of 1965-66 in the
Chicago area at which all of the appellants, except Geier
were present. It was during this time that some defendants,
who had large holdings in Hercules Galion, hatched the plan
to run the price of the stock up, either to profit from the
sale of their holdings, or, more probably, in order to accom-
plish mergers, acquisitions or engage in a proxy fight.
‘The Chicago group, and Petitioner was not of them, de-
cided to hire three admitted stock manipulators, Burton
“Buddy” Kozak, Mark Rolland and Spero Furla, to artifi-
cially raise the price of the stock.
At any rate, eventually, Rolland, Kozak and Furla, the
so called experts at stock manipulation, they had apparently
successfully manipulated the stock of Pentron Electronics
and pleaded guilty to an Indictment arising out of that
scheme, were given the job of managing and directing the
manipulation effort of Hercules Galion.
There were constant planning meetings, strategy ses-
sions, meetings at which there were reports of efforts made
and meetings at which bickering and other matters took
place. Appellant Geier, being a stockbroker in New York,
did not attend any meetings, did not participate in plan-
ning the scheme and, in fact, he never even then or at any
time up to the Indictment knew any of the people who sup-
posedly initiated the effort.
The tremendous number of meetings and strategy ses-
sions occurred during a period running from the summer
of 1965 until February, 1966, approximately six months.
Petitioner did not allegedly come into the scheme until
February of 1966 in New York and his total involvement
lasted only a few weeks.
The jury heard thousands of pages of testimony, in a trial
than ran 18 weeks, regarding the acts, declarations and
motives of all the Chicago participants, having nothing to
do with appellant Geier. Only Geier and his partner, Mur-
ray Peltz, who was acquitted, came from New York Ajj
the other participants were Chicago people. The jury heard
about the prior manipulation of Pentron Electronics al-
though Geier was not a participant and such evidence
would have been inadmissible in a case against Geier alone.
It heard a “confession” by one defendant which also would
not have come into a trial against Geier alone. A trial of
only appellant Geier would probably have taken no more
than a week.
Mr. Geier’s implication in the entire scheme runs a total
of about 10 days and his link to the conspiracy is tenuous at
best. That link rested on the testimony of Burton “Buddy”
Kozak, the “professional” manipulator and self confessed
liar, thief and con-man. His testimony was corroborated by
his partners in crime, Mark Rolland and Spero Furia. They
were the only ones in the whole case who had ever met Geier
and it was they alone who swore that they made a deal to
pay Geier money to manipulate the stock.
The sum of their testimony involving Geier related to
three short meetings at airports at which an offer was made
wherein Geier was supposed to receive an amount of cash
if he could cause the stock to go up by virtue of his purchas-
ing power in New York.
Two of the three manipulators, Kozak and Rolland, testi-
fied about two meetings with Geier, one at Kennedy Airport
and one at the airport in Chicago. On the first occasion,
$12,500.00 was allegedly given to Geier as part payment on
7
the first installment of $25,000.00 and the balance was
handed over when Petitioner came to Chicago a few days
later.
The only witnesses against Geier concerning the conspir-
acy and the agreement to receive, and reception of, a bribe,
were the three main manipulators. They implicated Peltz
as much as Geier and Kozak even first handed the envelope
containing $12,500.00 to Peltz (2555). Peltz had discus-
sions with Rolland and Kozak on the telephone about pay-
ment of the money (565-566, 2526-2527), Geier first had to
get Peltz’s approval before going into the deal (563, 2523)
and Rolland and Kozak even flew to Florida to see Peltz on
one occasion to discuss Hercules Galion and other things
(587-597, 2557-2559) .
Mark Rolland said that when they first met Geier to
offer him the deal Kozak gave him the background of
the company, the people involved and he mentioned the
names of the people involved. (561-562). The same testi-
mony came from Furla (4856-4857). On the other hand,
the man who allegedly did the talking, Kozak swore that
Rolland, not he, described the company and that the names
of the people involved were not mentioned (2521).
At any rate, the supposed deal was that Geier was to get
15,000 shares of the stock at $8.00 per share when the
stock reached $16.00 (25-20). The consideration was sup-
posed to be in cash and there was an agreement that the
first $25,000.00 would be payable when the stock closed
above $13.00.
Kozak said that after he made the offer to Geier and
Geier said he would consult Peltz, Geier called the next
Monday morning and said that Peltz agreed and that they
were proceeding with the deal (2528). Then Geier called
the next day to say that the stock would close above 818.00
and that he’d be in Chicago that afternoon to pick up the
$25,000.00 (2524).
The stock closed under $138.00 but Geier, Kozak and
Keller agreed that a good faith payment was in order 20
$12,500.00 was put into an envelope. Kozak and Rolland
took the money to the airport where they gave it to Geier.
Peltz called Kozak on the morning of February 10th and
told him to watch the tape on the opening (2551). Kozak
told Peltz he’d be out that evening with the balance of the
money and he later told Geier what plane he'd be taking.
Kozak got the money that day from Stuart Projansky and
took a plane to New York.
He met Geier and Peltz waiting for him at the exit ramp
and handed the envelope to Peltz. Peltz said “Give it to
the kid”, so he handed it to Geier (2555).
There were many telephone calls between Kozak and
Geier between February 10th and February 25th, and
thereafter a meeting was held at Kennedy Airport between
a whole group of brokers from the New York area who
were concerned why the stock had been dropping.
These meetings were not inconsistent with meetings that
brokers would engage in when they were concerned about
the future of a stock that they had in good faith recom-
mended to their clients. The illegal purpose of these meet-
ings is only established when one relates it to the testimony
of Rolland, Furla and Kozak, because it was only these
men who related the facts about the supposed pay-off.
As far as Petitioner is concerned, the only direct evi-
dence against him was the testimony of these three men.
It was his contention below that the witnesses lied, and in
fact, they admitted to various lies and criminal acts on the
witness stand.
It was also Petioner’s contention that even if these wit-
nesses could be believed, testimony established a supposed
consipracy in New York between the three men and Peti-
tioner which in no way related to the Chicago aspect of the
case.
REASONS FOR GRANTING THE WRIT
POINT I
The Government, in spite of proper objection, was
permitted more peremptory challenges than allowable
by Rule 24(b) of the Federal Rules of Criminal Pro-
cedure. The conviction herein was not according to
law and was violative of due process.
The Supreme Court of the United States, almost a hun-
dred years ago, recognized that the right to challenge
jurors without reason is one of the most important rights
secured to a party in the anglo-american system of juris-
prudence.
In Pointer v. United States, 151 U.S. 396 (1894), Mr.
Justice Harlan said at page 408:
“The right to challenge a given number of jurors
without showing cause is one of the most
of the rights secured to the accused. ‘The end of chal-
lenge,’ says Coke, ‘is to have an indifferent trial, and
which is required by law; and to bar the party indicted
10
of his lawful challenge is to bar him of a principal
matter concerning his trial’.”
The right of the prosecution to challenge jurors peremp-
torily has also been a matter of long standing, and although
its origin is statutory only, it’s history also traces back to
English Law. United States v. Marchant, 12 Wheat 480, 482
(1827); Hayes v. Missouri, 120 U.S. 68, 71; Regina v.
Frost, 9 Car. & P. 129, 187 (Eng. 1839); New England
Enterprises, Inc. v. United States, 400 F.2d 58, 68 Fus,
cert. den. 393 U.S. 1036 (Ist Cir. 1968).
The authority for the use of peremptory challenges by
respondent in this case can be found in Rule 24 of the Fed-
eral Rules of Crimnial Procedure and, at bar, only 6 chal-
lenges are authorized. Yet, the Court below permitted the
Government to exercise 8 challenges over timely objection
by counsel for all defendants, objections which prompted
lengthy argument (89, 95-97). Thus, it is undoubted that
the point of law was preserved for review and in fact the
trial court below even had an opportunity to correct the
situation in the same manner as was approved in Heald v.
United States, 175 F.2d 878 (10th Cir. 1949), the recalling
of the jurors dismissed by the Government.
Objection was duly taken by counsel for one defendant
(95, 97) pursuant to the agreement of all parties and the
ruling of the Court that any objections would adhere to
benefit all defendants (75-76).
The position taken against the use of the two extra chal-
lenges was clearly stated at pages 95 and 97:
“Mr. Londin: With respect to your Honor’s rul-
ing as to peremptory challenges, of course there is a
valid reason for the defendants requesting and re-
—
11
ceiving additional peremptories above and beyond
what the statute requires. There are eight defend-
ants on trial and sixteen peremptories comes out to
two peremptories per defendant. The converse of
that as to the government, I don't say it applies at
all. There is no valid reason for the government to
require or to obtain additional challenges. They are
still one party plaintiff to this case.”
He then added:
“T think it is appropriate for us to have obtained
additional peremptories, but as far as the
ment is concerned and for the record I would respect-
fully except to the government’s obtaining additional
peremptories.“
All eight peremptory challenges were utilized by the Gov-
ernment (186: Aviles, 192: Rosenberg, 202: Davis, 208: Per-
kus, 236: Bendet, 253: Curry, 263 Williams, 278: Bryant).
The matter of excessive peremptory challenges is so vital
that the Courts have never generally required prejudice to
be shown as a prelude to invalidating a conviction where
such a situation is presented. Of course, even if prejudice
were required, the harmful effect of too many challenges is
obvious. In a case such as this, where not every defendant
was convicted, certainly one or both of the jurors discharged
may have held out for acquittal with respect to petitioner
Geier or any other defendant. Such an event was highly
possible since not only were there acquittals in this case but
the jury was hung as to defendant Weitz.
The Government’s right to a specific number of challenges
being statutory only, should be strictly construed. United
States v. Marchant, supra. In fact, as was pointed out in
12
the recent case of New England Enterprises, Inc. v. United
States, 400 F.2d 158, cert. den. 393 U.S. 1086 (1st Cir.
1968) when Rule 24 was drafted, the suggestion was made
that the District Courts should have the right to increase
the number of peremptory challenges allowable to the Gov-
ernment, yet it was never acted upon. Orfield, Trial Jurors
in Federal Criminal Cases, 29 F.R.D. 48, 43-47, 58 (1962).
Thus, the last sentence of the rule allowing additional chal-
lenges where there are multiple defendants, negates by im-
plication any other authority to exceed the numbers pre-
‘scribed by the rule.
The state of the law has remained unchanged from the
time of Pointer, in that there is no need to show prejudice
to a defendant to vacate a criminal conviction where exces-
sive challenges were used by the prosecution.
“Since it would rarely be possible for a defendant
to prove prejudice, proper objection to unlimited
challenges should be grounds for reversal. If these
were not so, there would be no sanction insuring ad-
herence to the rule by trial courts.”
New England Enterprises Inc. v. United States Supra at
69.
The view taken by the Court in the New England case
is also in keeping with the views taken by most States where
there has been occasion to come to grips with the issue.
Colorado.—Bustamante v. People 133 Colo. 497, 297 P2d
538 (1956) (erroneous allowance of challenge for cause
after state’s peremptory challenges exhausted, construed
as excess).
Florida.—Savage & James V. State 18 Fla. 909 (1882).
13
Indiana. Wiley v. State 4 Blackf. 458 (1837).
Kansas.—State v. Dreany 65 Kan. 292, 69 Pac. 182
(1902).
Louisiana.—State v. Earle 24 La. Ann. 38; (1872)
State v. Gay 25 La.Ann. 472 (1873); State v. Everage 33
La. Ann. 120 (1881); State v. Bertrand 167 La. 373, 119
So. 261 (1928); State v. Thornhill 188 La. 762, 178 So.
343 (1937) (Dictum).
Ohio. —Mahan v. State 10 Ohio 232, overruled on other
grounds (1840); Fonts v. State 8 Ohio St. 98 (1857). But
see State v. Bohannon 64 Ohio App. 431 (1940).
South Carolina.— State v. Anderson 59 S. C. 229, 37 S. E.
820 (1901).
Tennessee Wiggins v. State 69 Tenn. (1 Lea) 738
(1878); Foutch v. State 100 Tenn. 334, 45 SW. 678
(1898) ; But see Vines v. State 190 Tenn. 644, 231 SW2d
332, (1950) ; Nelson v. State 200 Tenn. 462, 292 SW 2d
727, cert. den. 355 US. 271, 2 L ed 2d 257, 78 S Ct 327
(1956).
Wisconsin.—Schoeffler v. State 3 Wis. 823 (1854).
Wyoming.—State v. Jones 27 Wyo. 46, 191 Pac. 1075
(1920) (exercise after waiver by state of its final peremp-
tory challenge construed as excess).
In State v. Bertrand, supra, the reason for the rule was
made perfectly clear. Peremptory challenges have been
recognized as so important that the allowance of an inordi-
nate number simply leads to a conviction not prescribed by
law. As such, the conviction is fatal without more.
The Supreme Court recently reaffirmed Pointer v. United
States, supra, in Swain v. Alabama, 380 U.S. 202, reh. den.
14
881 U.S. 921 (1965), when it pointed out that although the
Constitution is silent, still, peremptory challenges are 80
important that if they are impaired or denied to an accused,
the conviction will be invalidated without a showing of
prejudice.
Although the Swain case was decided in 1965, still, peti-
tioner wonders whether under expanding concepts of due
process, it might now be considered that the right to per-
emptory challenges is presently incorporated into that
concept. Petitioner would argue that such is now the case,
The only real consistent instances of convictions not
being disturbed where excessive peremptory challenges
were taken, are in cases where no objections were taken or
where there was consent of the parties. United States v.
Potts, 420 F.2d 964, cert. den. 398 U.S. 941; New England
Enterprises Inc., 1. United States Supra; Righi v. People,
145 Colo. 457, 359 P2d 656 (1961) ; Kloss v. United States,
77 F.2d 462 (8th Cir. 1935).
Neither consent nor waiver appeared in the case at bar.
The trial was long and complicated involving many de-
fendants. Countless charges and numerous issues of law
and fact would, as the Court below could anticipate, be
presented. In such a case the use of the peremptory chal-
lenge becomes doubly important and since the verdicts
were not identical with respect to each man on trial, the
Court below should not have permitted the Government
to use two extra challenges. Since timely objection was.
taken and considerable argument was had on the issue, the
Court and the prosecution were well aware of the problem.
It cannot even be claimed that a reversal would bring about
another costly, lengthy trial since the error should not
15
have occurred in the first place and once committed could
have been easily cured.
The Court of Appeals specifically refused to decide this
very important issue on its merits, holding that the objec-
tion did not properly preserve the issue because it did not
expressly mention Rule 24 (b). Petitioner submits that
such a holding is in error because the record indicates that
everyone was aware what was being discussed. In addition,
the subject was initially raised by the trial court when it
announced that it had certain rulings to make.
The ruling of the Court of Appeals, that the objection
was not proper, will have a far more serious effect on
criminal trials in general than on this case and should be a
factor in determining whether to grant the writ.
If formal, technical words will be required in making an
objection rather than in substance making one’s position
clear, no attorney in a multiple defendant trial will ever
consent to have one objection cover all defendants. Each
lawyer will be fearful of waiving a client’s rights unless
he also has his say and trials will become endless and need-
lessly complicated.
In recent years the trend has been to move away from
technical requirement of procedure, the need for formal ex-
ceptions and for the necessity of similar procedural steps
when issues of substance are clear. This decision marks a
backward step of the worst kind and will greatly impede
the swift administration of justice in Federal cases.
16
POINT Il
The petitioner was not part of one overall conspiracy,
but, at most, was a participant in the third of a series of
three separate conspiracies. The failure to sever his
case deprived him of due process.
The case at bar involved an alleged long and complicated
scheme to manipulate the price of the capital stock of Her-
cules Galion a scheme which began in July, 1965 and ended
in March, 1966. The evidence showed a series of meetings
occurring all during the Fall and Winter of 1965-66 in the
Chicago area at which all of the appellants, except Geier,
were present. It was during this time that some defendants, .
who had large holdings in Hercules Galion, hatched the plan
to run the price of the stock up, either to profit from the sale
of their holdings, or, more probably, in order to accomplish
mergers, acquisitions or engage in a proxy fight.
At any rate, eventually, Rolland, Kozak and Furla, the
so called experts at stock manipulation, they had apparently
successfully manipulated the stock of Pentrol Electronics
and pleaded guilty to an Indictment arising out of that
scheme, were given the job of managing and directly the
manipulation effort of Hercules Galion.
There were constant planning meetings, strategy ses-
sions, meetings at which there were reports of efforts made
and meetings at which bickering and other matters took
place. Appellant Geier, being a stockbroker in New York,
did not attend any meetings, did not participate in planning
the scheme and, in fact, he never even then or at any time
up to the Indictment knew any of the people who supposedly
initiated the effort.
17
The jury heard thousands of pages of testimony, in a trial
that ran 18 weeks, regarding the acts, declarations and
motives of all the Chicago participants, having nothing to
do with appellant Geier. Only Geier and his partner, Mur-
ray Peltz, who was acquitted, came from New York. All the
other participants were Chicago people. The jury heard
about the prior manipulation of Pentron Electronics al-
though Geier was not a participant and such evidence would
have been inadmissible in a case against Geier above. It
heard a “confession” by one defendant which also would not
have come into a trial against Geier alone. A trial of only
appellant Geier would probably have taken no more than a
week.
Mr. Geier’s implication in the entire scheme runs a total
of about 10 days and his link to the conspiracy is tenuous at
best. That link rested on the testimony of Burton “Buddy”
Kozak, the “professional” manipulator and self confessed
liar, thief and con-man. His testimony was corroborated by
his partners in crime, Mark Rolland and Spero Furla. They
were the only ones in the whole case who had ever met Geier
and it was they alone who swore that they made a deal to
pay Geier money to manipulate the stock.
The sum of their testimony involving Geier related to
three short meetings at airports at which the offer was made
and part of the monies were paid. The case against appel-
lant did not in any way depend on testimony from or about
any other member of the alleged conspiracy and the issue
on a separate trial would have been refreshingly simple.
Was an offer made to Geier and his partner, Peltz, was it
accepted and was money paid after services were performed.
To tack the prosecution against Geier on to the main con-
=
18
spiracy proceeding hopelessly confused the jury and made
a fair trial against Geier impossible.
The fact that the jury was confused is inescapable be-
cause had they truly been able to consider only the evidence
against each defendant that they should have, they could
never have convicted Geier yet have acquitted his partner,
Peltz.
The only witnesses against Geier concerning the conspir-
acy and the agreement to receive, and reception of, a bribe,
were the three main manipulators. They implicated Peliz as
much as Geier and Kozak even first handed the envelope
containing $12,500.00 to Peltz (2555). Peltz had discus-
sions with Rolland and Kozak on the telephone about pay-
ment of the money (565-566, 2526-2527), Geier first had to
get Peltz’s approval before going into the deal (563, 2523)
and Rolland and Kozak even flew to Florida to see Peltz on
one occasion to discuss Hercules Galion and other things
(587-597, 2557-2559).
The only reasonable explanation for the action of the
jury in convicting Geier and acquitting Peltz is that they
were confused. There is no logical basis on which the
difference in the verdict can be otherwise explained.
It should be noted that since Geier and Peltz were not
known to anyone else among all the defendants nor did such
people know them, the only evidence which in any way
could put them into the conspiracy came from Kozak, Rol-
land and Furla and even that was weak and contradictory.
Mark Rolland said that when they first met Geier to offer
him the deal that Kozak gave him the backgorund of the
company, the people involved and he mentioned the names
19
of the people involved. (561-562). The same testimony
came from Furla (4856-4857). On the other hand, the man
who allegedly did the talking, Kozak swore that Rolland,
not he, described the company and that the names of the
people involved were not mentioned (2521).
It seems to petitioner that whether the names were men-
tioned or not is critical to whether there was sufficient evi-
dence to include Geier in the overall single conspiracy
rather than as part of a third, separate plot. That was
tremendously important yet it was no doubt clouded by
the wealth of other evidence presented by the government
relating to other defendants. Even the witnesses who
bought stock only went so far as to say that Geier told them
the stock would go up because of the potential merger.
In a separate trial the veracity by the three main con-
spirators, all having unsavory backgrounds and much to
gain by lying would have been put squarely up against that
of Geier.
The instances in which they admittedly lied to and even
cheated their accomplices and their lies from the witness
stand would have stood out and certainly would have
created a reasonable doubt.
In the case at bar, the issues were complicated by all of
the other evidence involving the other defendants, talk of
the prior manipulation and subsequent Indictment regard-
ing the Pentron stock and there was no way for the jury to
shut all of these things out when they considered Geier’s
guilt.
The Supreme Court has made it clear that it will frown
upon attempts to broaden the scope of onspiracy prose-
cutions.
Prior cases in this Court have repeatedly warned
that we will view with disfavor attempts to broaden
the already pervasive and wide-sweeping nets of
conspiracy prosecutions.”
Gruenwald v. United States, 353 U.S. 391, 404 (1957),
This Court also clearly took the position that where an
Indictment charges a single conspiracy and the evidence
develops multiple conspiracies, the case should be dismissed
United States v. Lopez, 420 F.2d 318, 317 (2nd Cir. 1969).
In United States v. Goss, 329 F.2d 180 (4th Cir. 1964),
it was held that where the evidence showed multiple con-
‘spiracies and the appellants appeared in only one or two of
six counts, a conviction obtained could not stand. Probably
the leading case in the area of multiple conspiracies is
Kotteakos v. United States, 328 U.S. 750 (1946) which
was followed by this Court in United States v. Russano,
257 F.2d 712 (2nd Cir. 1958), and was reaffirmed by the
Supreme Court in Blumenthal v. United States, 382 US
589 (1947).
Mr. Justice RuTLEDGE, in Kotteakos made it clear that
even if there is sufficient evidence to support a conviction
for each separate conspiracy, the wrongful joinder will still
invalidate the verdict :
“The Government’s theory seems to be, in ultimate
would be sufficient to sustain his conviction, if sub-
mitted in a separate trial.”
Kotteakus v. United States, supra, 767:
Mz. Jusricꝝ RUTLEDGE then went on to explain the reason
for the rule:
“With all deference we disagree with that conclu-
sion and with the ruling that the permeating error
did not affect ‘the substantial rights of the parties’.
That right, in each instance, was the right not to
be tried en masse for the conglomeration of distinct
and separate offenses committed by others as shown
by the record.”
Kotteakos v. United States, Supra at 775
There of course have been cases where multiple conspir-
acy convictions have been sustained although the Indict-
ment charged only one, but those cases involved situations
where the number of conspiracies were smal] and the people
involved were only three or four so that the discrepancy was
not meaningful. Where the number of people involved are
many, as here, or where the conspiracies are unusually in-
volved or great in number, the result must be as Kottea-
kos. United States v. Baker, 419 F.2d 88 cert. den. sub.
nom; De Norsico v. United States, 397 U.S. 971, 976 (2nd
Cir. 1969) ; Rocha v. United States, 288 F.2d 545, cert. den.
366 U.S. 948 (9th Cir. 1961); United States v. Russano,
Supra; United States v. Goss, Supra; Kotteakos v. United
States; Berger v. United States, 295 U.S. 78.
The Kotteakos case in many ways bears a striking resem-
blance to the case at bar. Nineteen defendants were brought
to trial and one conspiracy was charged. The Court allowed
the jury to consider verdicts against thirteen defendants
and they acquitted four.
Even though multiple conspiracies were established by
the record, the Court of Appeals affirmed because guilt was
so manifest. The Supreme Court nevertheless reversed and
pointed out that a jury considers the total wrong, not each
defendant’s wrong in the total setting. Kotteakos v. United
States, Supra 764.
“Obviously the burden of defense to a defendant, con-
nected with one or a few of so many transactions, is
vastly different not only in preparation for trial,
but also in looking out for and securing safeguard
against evidence affecting other defendants, to pre-
vent its transference as ‘harmless error’ or by pey-
chological effect, in spite of instructions for keeping
separate transactions separate.” Kotteakos v. United
States, Supra at 766-67.
The charge to the jury was similar in Kotteakos to the
case at bar but the Supreme Court commented that the
error in such a charge was confusing the common purpose
of a single enterprise with several, though similar purposes
of numerous separate conspiracies of like character. The
Trial Court must decide whether the conspiracies are multi-
ple ones and inasmuch as mass conspiracy trials are excep-
tional, a Trial Court should endeavor to keep from uniting
too many people in one trial, especially where separate trials
would work no great prejudice.
“With all deference we disagree with that conclusion
and with the ruling that the permeating error did
not affect ‘the substantial rights of the parties’. That
right, in each instance, was the right not to be tried
en masse for the conglomeration of distinct and sepa-
rate offenses committed by others as shown by this
record.” Kotteakos v. United States, Supra at 775.
The policy of the Court is stated at page 773:
“When many conspire, they invite mass trial by
their conduct. Even so, the proceedings are excep-
tional to our tradition and cal! for use of every safe
vidualize each defendant in his relation
to the mass. Wholly different is it with those who
together with only a few, though many others
E
When it became apparent that petitioner Geier was really
involved in a separate conspiracy which existed only during
February and March, 1966 at best, a severance should have
been declared. Since there are times when a Court cannot
tell definitely that separate conspiracies exist until all the
evidence is in, it is quite proper for the severance to be
granted even though both sides have rested.
In fact, if such is the case, that is exactly what a Court
should do. United States v. Goss, Supra, 184; Drew v. United
States, 331 F.2d 85 (C. A. D.C. 1964).
The action of the jury in considering all of the
evidence in the case to determine if petitioner was part
of the conspiracy was improper.
Before the evidence of members of a conspiracy can be
used against other members, the one against whom such
evidence is offered must be shown to have been part of the
scheme by independent evidence. United States v. Branker,
418 F.2d 378 (C.A. N.Y. 1969); McMahan v. United
States, 424 F.2d 1216 (C.A. III. 1970); United States v.
Santos, 385 F.2d 43, cert. den. 390 U.S. 954 (C.A. Ind
1967) ; United States v. Simon, 425 F.2d 796 (C.A. N. I.
1969) ; United States v. Marquez, 424 F.2d 236 (C.A. N.Y.
1970) ; United States v. Plata, 361 F.2d 958, cert. den. 385
U.S. 841 (C. A. II. 1966) ; United States v. McGowan, 423
F.2d 413 (C.A. Va. 1970); Hanger v. United States, 398
F.2d 91, cert. den. 393 U.S. 1119, reh. den. 395 U.S. 971;
United States v. Schockley, 441 F.2d 1151 (C.A. Wash
1971) ; Rogers v. United States, 334 F.2d 83, cert. den. 880
U.S. 915, reh. den. 380 U.S. 967 (C. A. Fla. 1964) ; Thog-
martin v. United States, 313 F.2d 589 (C.A. Iowa 1958);
United States v. Morello, 250 F.2d 631 (2nd Cir 1958);
United States v. Farina, 281 F.2d 62 (2nd Cir. 1955);
United States v. Russanc, supra.
No evidence existed other than that offered by the co
conspirators, Rolland, Kozak and Furla which in any way
put Geier into the conspiracy. Of course petitioner argued
below that even their testimony failed to properly place him
into the scheme.
The only other evidence that was offered was proof that
Geier took an airplane trip to Chicago, a fact which was
not denied but which proved nothing. It was Geier’s con-
tention that his trip to Chicago was for a totally different
but legitimate purpose.
The fact that Geier recommended the stock proved noth-
ing. The evidence showed that all of his customers were
sophisticated investors and they exercised their independ-
ent judgment. The stock looked good, the charts bore out
that it was a good investment and there was much talk
about the potential merger.
There was not the slightest shred of evidence to place
appellant in the conspiracy other than that of the co-con-
spirators. In this proceeding the Government’s case was
pulled up by its own bootstraps.
CONCLUSION
The petition for Certiorari should be granted or at
the minimum the cause should be remanded to the
United States Court of Appeals for the Second Circuit
to decide the issue involving 24(b) of the Federal Rules
of Criminal Procedure.
Respectfully submitted,
STANLEY M. MEYER
66 Court Street
Brooklyn, New York 11201
(212) 834-8888
Attorney for Petitioner
APPENDIX A
UNITED STATES COURT OF APPEALS
For tHe Seconp Circuit
—
Nos. 691-69 4— September Term, 1971.
(Argued May 17, 1972 Decided June 22, 1972.)
Docket Nos. 71-2006
71-2081
vs 71-2082
. 71-2124
5 Unrrep Srares or Amica,
5 Appellee,
2 v.
5
Iain Proyansxy, Hanzy Brammer, Gu Leavirt,
arp Micnam. Gin, .
Defendants- A ppellants.
Before:
Circuit Judges.
Appeals from judgments of conviction entered by the
United States District Court for the Southern District of
New York, Morris E. Lasker, Judge, after trial by jury
for charges arising out of a stock price manipulation.
Affirmed.
= =
-
Gzorce B. Couitxs, Chicago, Illinois (Collins &
Amos, Chicago, Illinois), for Defendaut-
Appellant Harry Brainin.
3665
Paraicx A. Turrs, Chicago, IIlinois, for D
dant-Appellant Irving Projansky. ee
Morror J. Som, New York, New York
(Joseph J. Marcheso, New York, New York,
Philip M. Karin, New York, New York, of
counsel), for Defendant-Appellant Gena,
Leavitt. ‘
Stanizy M. Mzyvzn, Brooklyn, New York (Press:
inger & Meyer, Brooklyn, New York), for
Defendant-Appellant Michael Geier.
.Joux J. Tiovn, Jz, Assistant United States
Attorney, New York, New York (Wurrsey
Norgta Ssyrmovr, Jz., United States Attor-
‘ ney for the Southern District of New York,
Jeffrey Harris, Carter LaPrade, Peter P.
Rient, Assistant United States Attorneys,
of counsel), for Appellee.
~~ =
—
Moon, Circuit Judge:
Irving Projansky, Harry Brainin, Gerald Leavitt, and
Michael Geier appeal from judgments of conviction en-
tered against them in the United States Distriet Court
for the Southern District of New York on September 17th
and 23rd, 1971, after a three and one-half month trial
before Judge Lasker and a jury. The four appellants,
with twelve others, were indicted on August 23rd, 1967,
for their alleged participation in a concerted effort to
raise by manipulation the price of the stock of Hercules
Galion Corporation (Hercules), a company listed on the
American Stock Exchange (AMEX)'. We affirm all four
judgments of conviction.
1 The indictment was brought in fourteen counts. Count one charged
the sixteen defendants and six conspirators not named as defendants
with conspiracy to commit offenses against the United States (18
I.
A. Events Prior to Spring of 1965
In September of 1963 Projansky, Brainin, and Irving
Taub, the sole officers and directors of Argus Capital
Corporation (Argus), an investment and finance com-
pany located outside Chicago, embarked on a program to
gain control of Hercules, a manufacturer of heavy trucks.
Pursuant to this program, during 1963 and 1964, ap-
U.S. C. $871 (1970); the substantive offenses were alleged to be
violations of sections 17 (a) and 24 of the Securities Act of 1933, 15
L. S. C. $$77q(a), 77x (1970), sections 9(a)(2) and. 32 (a) of the
Securities Exchange Act of 1934, 15 U.. C. 65 781 (a) (2), 78ff(a)
(1970), and 18 U.. C. 66 1841, 1343 (1970) (mail fraud).
The sixteen defendants charged were the four appellants, Arthur
Keller, Stuart Projansky (Irving’s son), Fred Weitz, Mark Rolland,
Spero Furla, Murray Peltz, Burton Buddy Kozak, Harris Nagorsky,
Herbert Werman, Edward Wetzel, Zafe Zafer, and David Zisfein.
Named as co-conspirators but not as defendants were Morris and Era
Childs, George Georges, Irving Taub, the First National Bank of
Lincolnwood, and Argus Capital Corporation.
Count two charged Projansky, Brainin, Leavitt, and others with
violations of sections 9 (a) (2) and 32(a) of the 1034 Act and 18
U.S. C. §2 (1970) for the period of August 23, 1965 to September 15,
1965. Count three charged Projansky and others with the same viola-
tions for the period of November 30, 1965 to December 9, 1965. Count
four charged Projansky, Geier, and others with the same violations for
the period of February 4, 1966 to February 16, 1966. Counts five
through fourteen charged Projansky, Geier, and others with violations
of sections 17(a) and 24 of the 1933 Act and 18 U.S.C. (2 for the
period of July 1965 to the date of the indictment.
Eight of the defendants entered pleas of guilty to one or more counts
of the indictment prior to trial. Several of them testified for the gov-
ernment at trial. Counts 7, 11, and 14 were dismissed as to all defen-
dants at the close of the government’s case. On June 5, 1971, the jurr
found Irving Projansky, Brainin, and Leavitt guilty on counts one
and two, Geier guilty on counts 1, 4-6, 8-10, and 12-13, Zafer guiltr
on counts one and three, and Peltz and Stuart Projansky not guilty on
all counts. A mistrial was declared on June 7, 1971, as to Weitz when
the jury was unable to reach a verdict on the counts against him. Judge
Lasker sentenced Projansky to one year in jail, Brainin to 3 months
in jail and a fine of S 2% 0, Geier to 6 months in jail, Zafer to 4
months in jail, and Leavitt to a 820,000 fine. Zafer filed a notice of
appeal but withdrew it on February 16, 1972.
3667
0 a
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1770
il if ss, 218255
11
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115 1247
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id
‘ Transcript at ST3S (Feria), 4958-69 (Keller), 406 (Rolland).
3671
C. August-September 1965: The Deal Is Finalized
The agreement between Projansky’s group and Rolland’,
group was finalized in a series of three meetings in August
and early September of 1965. On the one hand were Pro.
jansky, Brainin, Keller, and Taub, representing the Her.
cules interests, and on the other were Rolland, Furla, and
Leavitt, representing the promoters. During the first meet.
ing Brainin repeated what Projansky had said in the
earlier meetings about the soundness of Hercules and the
desire to see its stock price increase to enhance Hercules’
merger position. Brainin stated that there were approz-
imately one million shares outstanding, but that 30 to
35% of these shares were held dormant at Argus and voted
as a block by him. After Rolland and Furla repeated their
experience in stock promotion, they eventually proposed
these specific terms of agreement: the right to buy 36,000
shares of Hercules stock for themselves and the brokers
who would be working with them; financing for the pur-
chase of these shares to be provided by loans from Argus
(secured by the shares purchased, the borrower incurring
no personal liability); five thousand dollars in expense
money; the right to inspect Hercules’ stock transfer res-
ords; and assurances that insiders would not sell while
the promoters were leading Hercules up in price.
[Keller]
... he [Brainin] stated that he is exploring, or he has
explored, the area of mergers and acquisitions and it
would be very advantageous to him and all of us, and
Mr. Brainin stated that be would like us to put up some equity
towards the loan. I told him that that was completely out of the
question, that I had no intention of putting up any moner in a
situation where I was being paid to promote the stock, and we got
close to an argument.
Id. at 423 (Rolland).
3672
in the area of 6 and a fraction, and it would be very
advantageous to have mergers at that figure, and if
11
in the area of advancing the prices of stock
e tre gulls ft, nk tats Gate ae or six
months, it would be a service in which he t be
interested.
Rolland]
A. Mr. Brainin stated, If we do make a loan to
you, how are we to know whether you are going to
really promote the stock? How are we to know if you
are merely going to take this stock and then run
the stock up and sell it and leave us without perform-
ing the job that we are paying you for?”
I indicated to him that I was only interested in 3
long-term capital gain, and that that means I'd have
to be involved in the stock for a six-month period of
2 —— eee.
[Keller]
Then Mr. Rolland said, “As long as we are not
getting any stock or anything right now, and we are
ready to start this deal off, we will need $5,000 in
cash to distribute to our co-brokers to show them good
will and get them to work with us.”
Q. Did you [Rolland] have a conversation with Mr.
Furla and Mr. Leavitt at this time about how much
stock you wanted?
A. Yes.
9a
Q. Was there any agreement reached among the
three as to how much stock you were going to ask
for?
A. We agreed that we would ask for 50,000 shares
[initially] of stock to be purchased somewhere either
below the market or very close to the market. It u
also agreed upon that I would do most of the negotis-
tions, and that whatever I agreed upon, that would be
what the arrangements would be.“
At the second meeting, attended by the same parties,
the Projansky group agreed to the terms proposed by the
Rolland group. The option price of the 36,000 shares was
set at $7.25, but the parties agreed to execute the loan
only after the price of Hercules rose above $7.25. Timing
the loan in this way would not subject Brainin to criticiem
for making a loan equal to 100% of the value of the col
lateral. Rolland did demand, however, immediate payment
of the $5000 in order to induce other brokers to enter the
promotion. Finally, the parties agreed that Keller would
coordinate the initial purchases of 10,000 shares of Hercules
by himself and others and would place the orders through
Furia.
[Keller]
Then Mr. Rolland said it would be advisable if—no,
. he then said “We ought to have a kickoff order of a
substantial number of shares to really start this thing
off,” and again Mr. Projansky and I had a discussion
about the kickoff, and I said I would kick it off if Dr.
Weitz and Morris Childs would join in kicking it of
with me, and he said they would, they would.
6 Id. at 4363 (Keller), 413-14 (Rolland), 4370 (Keller), an
(Rolland).
3674
Then Mr. Rolland said, “I believe and I feel that
all orders should be funneled through Mr. Furla, that
he is with Blair & Co.”—I believe it was—“and that
he will execute some of the orders and pass on or ferret
out orders to his co-brokers, whoever they may be,”
but to leave it to him to arrange the total purchase
of which he would execute only a portion thereof.’
In preparation for the kickoff, Projansky and Keller
informed Fred Weitz, a director of the FNBL, and Eva
and Morris Childs, Projansky’s sister and brother-in-law,
of the plan to promote the stock of Hercules. In order to
give some real punch to the kickoff, Weitz took out un-
secured loans of $95,000 from the FNBL and gave the
proceeds to Keller to purchase Hereules stock; the Childs
borrowed $150,000 from the FNBL, half of which was un-
secured, for the same purpose. On the loan committee that
approved the loans were Projansky, chairman, and Keller,
Weitz, and Taub.
Further fuel for the kickoff was provided during the
third Argus meeting in early September of 1965. Rolland,
Furla, and Leavitt signed notes backdated to August 26,
1965, for $261,000 in loans from Argus. The proceeds
took the form of four checks, which the three promoters
promptly endorsed over to the sellers of the 36,000 shares
of stock purchased under the option ferm of the agree-
ment. The sellers were Gary Brainin, Brainin's son, and
Albert Green, Brainin’s long-time business associate. On
September 13, 1965, the FNBL executed a $100,000 un-
secured loan to Argus to help cover the loan made by
Argus to the Rolland group.
Keller delivered the expense money of $5,000 to Rolland
on September 9, 1965. The $5,000 was in the form of two
7 Id. at 4371 (Keller).
checks, one for $2,000 from Weitz, the other for
from the Childs. On the reverse of the Weitz check vm
written “Fee for Arranging Financial Advice.” On 4,
reverse of the Childs check was written “Fee for Cu
sultation.” Rolland in turn issued two checks to Leayi;
and Furla, each in the amount of $1,666. Leavitt in respons
“billed” Rolland for services rendered.
D. The Promotion in Operation
Beginning in August and continuing into early October,
1965, Keller purchased approximately 20,000 shares for
himself, Weitz, and the Childs, paying for the shares with
the proceeds of unsecured loans obtained at the FNBL
The bulk of the orders were placed through Furla, win
executed some himself and gave the rest to other broken,
Two other prominent participants during this period
were Harris Nagorsky and Zafe Zafer, Chicago broker
recruited by Rolland and Furla. Both brokers were prom
ised an option to purchase 4,000 shares of Hercules at
$8.00 per share for every 25,000 shares they purchased for
their customers and held for six months, as well as easy
loans at the FNBL. During the last months of 1965, Nagor.
sky and Zafer purchased 29,000 and 19,500 shares of
Hercules, respectively, for their customers. These pur.
chases, together with 26,000 shares purchased by Furla for
his customers and the purchases of other co-conspirators,
represented 43% of all the Hercules shares traded on the
AMEX during this period. The buying program condueted
by the brokers was carefully planned and executed to pro-
duce the illusion of real and sustained interest in Hereules
stock.
A. At the beginning, Mr. Zafer and Mr. Nagorsky
and I [Furla] and Mr. Rolland would get together
and discuss who would in the morning open the stock
3676
The Witness: Well, Saturday mornings it was re-
ferred to as brokers’ day because quite a few brokers
would come to the bank, including Mr. Zafer, Mr.
Nagorsky, myself [Furla}, once in a while Mr. Bern-
stein, and others that I didn’t know, and we would
sibly to do the same, because he didn’t want to use
his wire any more that time also. We would discuss
the sellers in the stock, where the selling was coming
from. We would discuss the painting of the tape. in
other words, how to break up orders, and if we got
3677
a large order how to handle it, whether to put it in 4
block or whether to put it in pieces, whether to space
it out timewise. Mr. Zafer and I would time our or.
ders so as to try to get them in together, let’s say, to
take a block of stock that was being offered out of the
market. We would have conversations concerning the
closing, whether to put it in as a market order or
whether to put it in as a fixed price order.“
Leavitt also participated in the efforts to enlist brokers
who would buy Hercules stock for their customers. In late
September of 1965 he assured Rolland and Furla that he
was working diligently toward this end and claimed to
have been successful in interesting brokers other than
those recruited by Rolland and Furla. During September
he recommended and purchased 11,300 shares of Hercules
for himself and customers of the brokerage firm at which
he worked. These purchases constituted almost 10% of
all Hercules shares traded on the AMEX during Septem-
ber. During this period Leavitt also tried to interest his
superior at the brokerage firm where he worked in Her-
cules, but the superior instructed Leavitt to cease recom-
mending Hercules to customers and to have nothing fur-
ther to do with the promotion.’
In October of 1965 Rolland and Furla brought George
Georges, a speculator in stocks and real estate,. into the
promotion. After being introduced to Projansky, Georges
was given an $80,000 loan at the FNBL, $54,000 of which
was unsecured. Georges claimed an ability to tap New
York buying power, and in late November and early De-
cember, enlisted three New York brokers.
IA. at 5769-70, 5778-74 (Furia), 1771-72 (Nagorsky).
* In September Leavitt, under pressure to discharge debts remaining
from his association with the ladies’ garment firm, sold the 12,00
Hereules shares be had under option. His profit on the sale was 629,000.
3678
The efforts of the promoters of Hercules were successful.
From a level of 614 at the end of July (on volume of 15,800
shares), Hercules jumped to 85% at the end of August (on
volume of 38,900 shares), and to 10% at the end of Sep-
tember (on volume of 123,400 shares). However, at the
end of October the price had fallen back to 984 (on volume
of 32,800 shares), and by the end of November to 94 (on
volume of 28,000 shares).
E. In the Manner of Sisyphus
A predictable futility increasingly characterized the pro-
moters’ efforts. While some diligently worked to increase
the price of Hercules, others undercut their efforts by sell-
ing as the rewards for doing so increased. The promoters
themselves were not beyond such treachery when the occa-
sion presented itself.
That they were being betrayed was a continual source of
exasperation to the promoters. From the very beginning
Rolland had feared that insiders at Argus or Hercules
would thwart the success of any promotion effort, and had
sought to insure against the occurrence of such sales by
insisting on the right to inspect Hercules’ stock transfer
list and by obtaining vows from the insiders that they
would not undercut the promotion.
Yet, as the October and November figures of Hercules’
price indicate, all was not right with the promotion. Some-
one was selling while the brokers were busy buying. Their
concern over this development was so great that they fol-
lowed Keller into the hospital with their complaints who,
on October 3, 1965, had suffered a serious heart attack.
[Keller]
A.. . . Mr. Rolland told me that Hercules Galion
is slipping because Projansky and Brainin’s group are
3679
10
selling stock, and they can’t keep supporting the mar.
ket if the investors are selling stock into them.
I said, “What do you expect me to do here, jnst let
me alone and go and tell Mr. Projansky and tell Dr,
Weitz but don’t tell me, there is nothing I can do about
it,” and that was the end of that.
They came a second time a few days thereafter, and
gave me the same conversation, and I told them that
“You will have to go and see Irving Projansky or Dr.
Weitz, there is nothing I can do or want to do, and
please don’t come back any more.”
[Keller]
The Witness: On this occasion, they [Rolland and
Furla] stated that you fellows are selling directly—
Irving Projansky and Dr. Weitz—“You fellows are
selling stock into us and we can’t keep the price.”
Irving Projansky told them, “We are not selling stock
into you and you fellows aren’t doing your job.”
Then I interjected, “Carry this on elsewhere and
let me alone.“
Transeript at 4410, 4413 (Keller). That the team spirit was les
intense than it should have been was also evident during the meetings
the brokers frequently had among themselves.
Id. at 5772 (Furla), 1782 (Nagorsky). .
However, a few of the sellers were rooted out. Late in
1965 Rolland and Furla discovered from their inspection
of Hercules’ stock transfer list, that the chairman of the
board of Hercules, Mr. Van Alstyne, was selling Hercules
stock. They complained to Brainin, who phoned Van Al-
styne (who was unaware of the promotion) and informed
him that his sales were counter-productive. On another
occasion, Rolland and Furla discovered that Arthur Dick-
holtz, a director of the FNBL, was selling substantial quan-
tities of Hercules stock held at Argus. Rolland personally
spoke to Dickholtz about his selling; as a result, Rolland
obtained an option on 6,500 shares of Dickholtz’ stock at
$8.00 per share.
In December there were a series of meetings between
Projansky, Keller, and the active brokers (excluding Leav-
itt). All sides grew increasingly suspicious of the motives
and abilities of their comrades.
A. George [Georges] stated that I [Rolland] had
not been truthful with all the brokers that are in-
volved in the promotion. He said that the most de-
ceitful had been Spero Furla because he had not dis-
closed that he had an option on a block of stock. He
said that we should, both Spero and myself, should
take all of the stock, put it together and give it to
him and that he will divide it up amongst the Chicago
brokers and also a New York team that was assembling
to make the stock go up.
Mr. Zafer complained that he had purchased a great
number of shares of stock and he was not being paid
enough.
Mr. Nagorsky complained that he also was pur-
chasing a great number of shares of stock.
Georges stated that 50 or 60,000 shares of stock had
heen placed, purchases, through the Lincolnwood Bank
with various brokers.
3681
17a
Nagorsky complained bitterly that he had not re.
ceived any of that business and he should have.
Tue meeting broke up with the intention of
another meeting later that day at Arthur Keller’s
office.
[Keller]
Mr. Rolland was not compensating these stock brokers,
that he had misrepresented the number of shares avail-
able for distribution, and that nobody really wants to
work any more with Rolland and Furla, they all want
to work with me, George Georges, and I want author-
ity here to run this thing and I am going to run this
thing, and the brokers will only work with me.
Then Mr. Zafer said, “I sold X number of shares“
I don’t recollect the number—“and I haven't been paid
anything, and I want my money.”
And Mr. Nagorsky said he had sold X number of
shares and he hadn’t been compensated."
F. Kozak and the New York Influence
About this time, in December of 1965, Burton Kozak,
another Chicago broker, joined the promotion at the in-
vitation of Nagorsky and Georges. While Georges had
been vying for the leadership of the promotion with Rol-
land and Furla, at a meeting at the Covenant Club in
Chicago in mid-January of 1966, Kozak, with promises of
New York contacts, displaced Georges and became one of
the leaders of the promotion with Rolland and Furla.
Q. Can you [Kozak] tell us what happened at the
Covenant Club meeting. . ?
11 I. at 600 (Rolland), 4464 (Keller).
18a
A. Mr. Zafer was trying to get George to remain
in the picture and to get Mr. Rolland and Mr. Furla
out of the picture.
He came there as the spokesman for George Georges.
There was a bitter argument between Mr. Zafer, Mr.
Furla and Mr. Rolland.
Mr. Keller said he was going to have to live with-
out George Georges and that everything will go on
as usual, starting the following day, ... .”
Kozak’s principal contact in New York was the broker
Michael Geier. On February 5, 1966, Kozak, Rolland, and
Furla met with Geier at the International Hotel at JFK
Airport in New York.
Rolland]
A. Buddy Kozak said to Mr. Geier that he had a
nice little stock that he wanted to promote. He said
the people behind it control the Hercules Galion Com-
pany and also the First National Bank of Lincolnwood.
He mentioned Mr. Projansky, Mr. Brainin, Mr. Taub.
12 4 at 3018-19 (Kozak).
He asked Mr. Geier if he had ever heard of then
Mr. Geier was not familiar with them.
He asked, he stated, “What do you think!”
4. Mr. Kozak stated to Mr. Geier, “What do yu
think you could do with the situation where there h
a total of a million shares outstanding and « fre
float of stock of about a quarter of a million shares?
Mr. Geier stated an issue that small he could gar.
ble (sic) up himself, there would be no problem u
Geier said, “I am not interested in stock or options,
I am only interested in cash.”
Bud Kozak says, “That being the case we can ar.
range so that it is all in cash. However, you will stil
have to make a cross of the stock at $15 a share.”
Mike Geier says, “One other thing. When the stock
gets up to about 13 I would want advance payment of
about $25,000.”
Bud Kozak says, “I think I can arrange it“ *
18 «=F. at GOD-11 (Rolland). In preparation for the mecting with Gar
The following Monday Geier phoned Kozak and told
him that his partner had agreed to the arrangements and
that they were immediately proceeding in execution of
their agreement. Geier quickly rounded up a team of New
York brokers. Their implementation of the promotion was
as methodical as that of their Chicago brethren. So suc-
cessful was Geier that by Wednesday, February 8th, Her-
cules hit 13 (on volume of 20,900 shares). He telephoned
Kozak to inform him that he was coming to Chicago to
pick up his $25,000. But, unfortunately, while Geier was
in the air on his way Hercules closed below 13. Kozak and
Keller, however, agreed to pay Geier $12,500 as a show of
their faith in him. When confronted with the news of
Hercules’ close, Geier became furious; he phoned his part-
ner in New York and both bitterly complained to Kozak
and Rolland about the selling that had obviously taken
place. Nevertheless, Geier affirmed that the deal was still
on, and returned to New York to redouble his efforts.
On February 10, 1966, Hercules opened on a block of
10,000 shares at 13 M; it closed at 14 5%, an all-time high.
During a phone conversation Kozak told Geier that he
would shortly fly to New York with the balance of the
$25,000. After obtaining the money from Stuart Projansky
at the FNBL, Kozak flew to New York and met Geier and
Peltz at the airport. Kozak handed the money to Peltz,
who said, “Give it to the kid.“ “ The kid (Geier) then left
for the race track.
[It was supplied; Hercules clo? on Friday at 1176, up a point
and a quarter.)
Id. at 3035-36 (Kozak).
14 Id. at 3075 (Kozak).
G. The Fourth and Final Quarter
Geier worked ardnously through the first half of Mara
on the Hercules promotion. During this period, for u.
ample, from January 28th to March 3ist, Geier spoke tp
Kozak some 655 times coordinating the promotion. But
by this time the effort to shore up Hercules became in
creasingly futile. The treacherous selling mounted. Keller,
who was forced to return to the hospital in mid-February
because of a gall bladder infection, once again became un
involuntary audience for complaining participtants.
[Keller]
A. Mr. Kozak and Mr. Rolland, particularly, were
complaining again that the investment group wa
selling into them, that they are absorbing a lot of
stock from the investment group, and the investment
group has to stop selling into them. So I said that
there is nothing that really I can do, “why don’t you
talk to Dr. Weitz about it, Dr. Weitz is here, and he is
available to talk to, you can talk to Mr. Projansky, I
don’t see any reason for coming here talking to me.
From now on talk to Dr. Weitz or Mr. Projansky
about whatever your problems are.”
A. . . Dr. Weits, Irving Projansky, and Mr. Kozak
came to my room, and Mr. Kozak said that he had
sold 3500 shares of Hercules Galion to a customer of
his, and the customer had reneged on the purchase,
he had no way of canceling the purchase, somebody is
going to have to eat this purchase, and I asked again,
“Why do you have to come here to tell this to me? |
am not interested in it.” “
IA. at 4488, 4489 (Keller).
So I said to them, Let's try to get some money out
of thie thing, and then just play it by ear the rest of
the way.” ™*
The salvage operation consisted of falsely telling Projansky
that they, Rolland, Furla, and Kozak, needed an additional
$50,000 to pay the New York group. Projansky assented to
the request; he raised the money by selling 4,500 shares
of Hereules stock that he owned jointly with Taub and a
friend. The amount actually given to the three was $47,000,
in small bills. The three took the money to Furla’s home
where they divided it equally among themselves. That
same day, Rolland paid Nagorsky $5,500 for his efforts in
the promotion.
16 Id. at 3082 (Kesak).
The crushing blow that dashed all hopes for the ;
tion’s revival came on March 7, 1966. The volatile 6
got into a heated argument with Geier and as a
placed an order to sell all of his 8.000 shares of Hera
at the market
(Kosak
A. Mr. Georges was in my office on March 7 o
March 8, 1966, and he was having a phone conversatics
with a Mr. Michael Geier.
The Witness: I heard Mr. Georges yelling at some
on the phone and then finally handed me
picked up another phone and called up Mr.
and told him to sell 8000 shares of Hercules
stock at the market.
I said to Mr. Geier that Georges is going crazy,
is selling out the stock, he is going to break the market.
Mr. Geier said to me, “Try and stop him.” Mr. Pelts
International Hotel at JFK on Sunday, March 13, 1966
It was attended by about 20 brokers, including Rolland
-and Kozak from Chicago. At the meeting Geier asked
I. at 3115-16 (Kozak).
everyone to coordinate their buying. A poll was taken to
determine the number of shares controlled by the brokers
present. The total came to two-thirds of the Hercules stock
outstanding, an obvious impossibility. For example, Geier
and Peltz themselves claimed to have purchased 170,000
shares when in fact they had bought only 41,900 shares.
Having failed to revive to the team spirit, the team dis-
banded. None of the attendants purchased any Hercules
thereafter.
II. Proffered Grounds For Reversal
A. Sufficiency and Scope of the Conspiracy
Brainin, Leavitt, and Geier contend that the evidence
is insufficient to link them with the conspiracy to raise the
price of Hercules stock. The contention is baseless. The
evidence of the appellants’ partnership in the agreement
to promote the price of Hercules is overwhelming. Their
contentions are variously based on the mistaken premise
that conspirators cannot be convicted in federal courts on
the basis of the testimony of accomplices” or that one con-
spirator must know all other conspirators and their acts
in furtherance of the conspiracy in order to be charged as
a member of the conspiracy.”
18 «But see Caminetti v. United States, 242 U.S. 470, 495 (1917); United
States v. Phillips, 426 F.2d 1069, 1071 (24 Cir.), cert. denied, 400
U.S. 843 (1970).
19 = But ee Blumenthal v. United States, 382 U.. 539, 557 (1947)
of all its details or of the participation of others.” (footnote omitted) ;
United States v. Vega, F. ad — (2d Cir. 1972) (Septem-
ber Term, 1971, slip ops. 2643, 2646-47); United States v. Agveci,
310 F.2d 817, 826 (2d Cir. 1962), cert. denied, 372 C.. 959 (1963).
See also Glasser v. United States, 315 U.8. 60, 80 (1942).
3689
Appellants’ contention that the evidence showed three
conspiracies rather than one is likewise without meri —
The evidence is clear that the appellants were each engaged
in a scheme to raise the price of Hercules by manipulation
and to hold the stock at the artificially raised price for 3
period of six months. From the spring 1965
to the final attempt to rescue the promotion at the Inter.
national Hotel at JFK, the promoters were committed to
a common goal and their acts were all in furtherance of
this common goal.“
B. Objections to the Charge
Appellants marshal a battery of objections to Judge Las.
ker’s charge to the jury. We consider only those to which
a proper objection was made.“ First, appellants complain
Appellant Brainin points to Keller’s desire, evident in his testimony,
to depose Brainin from his position of influence at Hercules. We fall
te see how this “sub-conspiracy” detracts from the case against Brainia
See Kotteakos v. United States, 828 U.S. 750 (1946); United State:
v. Calabro, 449 F.2d 885, 892-93 (2d Cir. 1971), cert. denied, —— U
— (1972); United States v. Borelli, 386 F.2d 376, 382-87 (24 Cir.
1964), cert. denied, 379 U.S. 960 (1965); United States v. Falcone,
109 F.2d 579, 581 (2d Cir.), d, 311 U.S. 205 (1940).
Fed. R. Crim. P. 30; United States v. Lewis, 433 F.2d 1146, 1158
(D.C. Cir. 1970) (per curiam); United States v. Indiviglio, 352 F.
276 (2d Cir. 1965) (en banc), cert. denied, 388 U.S. 907 (1966).
Appellants’ complaint that the eourt's charge on accomplice testimony
did not sufficiently emphasise the suspicion with which such testimony
should be considered and that in charging on accomplice testimony the
eourt implied that it had concluded a conspiracy had in fact been
proved. The court’s charge on accomplice testimony, see note 25 infra,
was correct, United States v. Bellamy, 436 F.2d 542, 545-46 (2d Cir.),
cert. denied, 402 U.S. 929 (1971); United States v. Mattio, 388 F.2d
368, 370 (2d Cir.), cert. denied, 390 U.. 1043 (1968); United States
v. Telly, 349 F.2d 720, 767-68 (2d Cir. 1965), cert. denied, 384 US
947 (1966); United States v. Vita, 294 F.2d 524, 526 (2d Cir. 1961),
cert. denied, 369 U.S. 823 (1962), and is a fortiori not reviewable,
not objceted to, as plain error under Fed. R. Crim. P.
3690
of Judge Lasker's reference to the “unwarranted” hopes
for leniency in sentencing of those defendants who testi-
fied for the government at the trial.“ Their argument is
that this purported misstatement undermined the defense
theory that the cooperating witnesses were selling out the
defendants in the hope of reduced sentences on their pleas
of guilty. The argument is without substance. The charge
read in context clearly informed the members of the jury
that they were to assess the credibility of the witnesses
and that in so assessing they should evaluate the weight to
be given to the defendants’ contention concerning the credi-
bility of the government’s witnesses.”
Appellants further object to the court’s charge on the
weight to be given to an admitted perjurer’s testimony.”
Keller admitted at trial that he had committed perjury
22 I want to say that the power of sentence in this Court is reposed
in the Judges, and only in the Judges, and the United States At-
torney and Assistant United States Attorneys have no power what-
ever with respect to the sentence. In saying this, however, I do not
wish to suggest what weight should be given to the defense argu-
ment that a human being may color his testimony in the hope
that some Judge may give him recognition for such cooperation,
if such it ean be called. You should consider this matter in your
assessment of the credibility of these witnesses. As you did with
other witnesses, you must ask yourselves, is he telling the truth?
In the case of the witnesses I am talking about, have they colored
their testimony in the unwarranted hope that they can secure more
favorable treatment? This is for you and you alone to decide.
Transcript at 9404-05.
23 See generally United States v. Kahaner, 317 F.2d 459, 479 (2d Cir.),
cert. denied, 375 U.8. 836 (1963).
24 As to the witnesses who have admitted lying to the grand jury
or otherwise in the past rou should consider their testimony and
decide whether you wish to accept or reject it in whole or in part.
You may decide, for example, that an admitted liar is unbelievable,
or, conversely, you may accept his testimony recognizing that in
life there are persons who have lied in the past but are not in-
capable of telling the truth in the present. Again, this is for rou
and only rou to decide.
Transcript at 9495.
3691
27a
i 14341.
127 BEE 1 161 f 71111427
if i: 7144415 . 11 11
111 Ae F J
11115 ait 1 HE
N 1 4 425 E 111 : 121 3° 111117.
I .
1 5 87 21171 12412
H ee
8
ad a reasonable doubt.“ The basis for this invitation is
the contention that the principle of Bruton requires that
the jury determine a defendant’s participation in a con-
. spiracy beyond a reasonable doubt before it consider the
hearsay declarations of co-conspirators linking the defen-
dant to the conspiracy.” We fail to perceive how Bruton
26 United States v. Cafaro, 455 F. 2d 328, 826 (2d Cir. 1972); United
27
28
States v. Pordum, 451 F.2d 1015, 1016-17 (2d Cir. 1971) (per curiam),
cert. denied, —— U.8. —— (1972), 40 U.S. L. W. 3456 (Mar 21, 1972) ;
United States v. Calabro, 449 F.2d 885, 889 (2d Cid. 1971), cert.
denied, —— U.S. —— (1972); United States v. Jacobs, 481 F.2d 754,
760-61 (2d Cir. 1970), cert. denied, 402 U.. 950 (1971); United States
v. Calerco, 424 F.2d 657, 660 (2d Cir.), cert. denied, 400 U.S. 824
(1970); United States v. Eskow, 422 F.2d 1060, 1069-70 (24 Cir.),
cert. denied, 398 U.S. 959 (1970); United States v. Baker, 419 F.2d
83, 88-89 (24 Cir. 1969), cert. denied, 397 U.B. 971 (1970); United
States v. Geaney, 417 F.2d 1116, 1120 (ad Cir. 1969), cert. denied,
397 U.S. 1028 (1970); United States v. Nuocio, 873 F.2d 168, 173-74
(2d Cir.), cert. denied, 387 U.S. 906 (1967); United States v. Zorellt,
386 F.2d 376, 887 (2d Cir. 1964), cert. denied, 379 U.8. 960 (1965);
United States v. Stadter, 386 F.2d 326, 829-30 (2d Cir. 1964), cert.
denied, 380 U.S. 945 (1965); United States v. Stromberg, 268 F.2d
256, 265-66 (2d Cir.), cert. denied, 361 U.8. 863 (1959); United States
v. Dennis, 188 F.2d 201, 280-31 (2d Cir. 1950) (dictum), af d on
other grounds, 341 U.S. 494 (1951); United States v. Pugliese, 153
F.2d 497, 500-01 (2d Cir. 1945); United States v. Nardone, 127 F.2d
521, 523 (2d Cir.), cert. denied, 316 U.S. 698 (1942).
Accord, United States v. Bey, 487 F. 2d 188, 191-92 (2d Cir. 1971);
Carbo v. United States, 314 F.2d 718, 735-38 (9th Cir. 1963), cert.
denied, 377 U.8. 953 (1964).
Bruton v. United States, 391 U.S. 128 (1968).
The effect of the rule [of Dennis et al.] is to admit evidence of
conversations and statements of fact by people (such as George
Georges) who are not called by the Government, and who convict
with their un-eross examined utterances. As Judge Dooling pointed
out in [his dissent in] Calareo, this denial of the right of cross
examination approaches the due process point raised in Bruton v.
U.S., 301 T.. 123 (1968). We do claim that this rule deprives
the Defendants of due process. Amendment V, United States Con-
stitution.
Brief for Appellant Brainin at 44.
Appellants also refer us to the apparent practice in a few of the
circuits requiring the jury to determine the defendant's membership
3693
affects the Dennis rule allocating between judge and jary
the initial determination of whether a defendant is a mem.
ber of the conspiracy for purposes of permitting the des
larations of co-conspirators to be considered by the jury
in assessing the defendant’s guilt. To agree with the ap
pellants would be to nullify the co-conspirator exception
to the hearsay rule, a result we do not think was intended
in Bruton.” We therefore decline the appellants’ invitation.
C. Objection to the Failure to Sever
Leavitt and Geier contend that their prosecutions should
have been severed from the prosecutions of the other de.
fendants. Whether to grant such a motion is within the
sound discretion of the trial judge.“ Given that the evi
dence (1) clearly supports the charge of one conspiracy,
and (2) that Leavitt and Geier were members of this con-
spiracy, the contention that the trial judge abused his dis-
cretion in failing to sever fails a fortiori.
in the conspiracy beyond a reasonable doubt based solely on the evi-
denee independent of the co-conspirators’ hearsay declarations. See
Dennis v. United States, 346 F.2d 10, 16 (10th Cir. 1965), rev'd on
other grounds, 384 U.8. 855 (1966); Newman v. United States, 331
F.2d 968, 971 (8th Cir. 1964), cert. denied, 379 U.S. 975 (1965);
Landers v. United States, 304 F.2d 577, 582 (Sth Cir. 1962). The issue
was not really analyzed in these cases; to the extent that it was, we
find their analyses unpersuasive in light of the arguments of Judge
Learned Hand in United States v. Dennis, 183 F.2d 201, 230-31 (2d
Cir. 1950), aff'd on other grounds, 341 U.S. 494 (1951) and Judge
Merrill in Carbo v. United States, 314 F.2d 718, 785-38 (9th Cir. 1963),
cert. denied, 377 U.8. 953 (1964).
Particularly in light of the narrowing of Bruton evident in Dutton
v. Evans, 400 U.S. 74 (1970) and California v. Green, 399 U.. 149
(1970). See Davenport, The Confrontation Clause and the Co-Conspir-
ator Exception In Criminal Prosecutions: A Fuactional Analysis, 8
Harv. L. Rev. 1378, 1379-81 (1972).
Fed. R. Crim. P. 14; Stilson v. United States, 250 U.S. 583, 585-86
(1919); United States v. Vega, —— F.2d ——, —— (2d Cir. 1972)
(September Term, 1971, slip ops. 2648, 2648); United States v. Borelli,
435 F. zd 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946 (1971).
3694
D. Alleged Errors in the Prosecutor's Summation
Appellant Leavitt objects to portions of the prosecutor’s
summation. Specifically, he objects to the prosecutor’s
argument inferring from the testimony that when Leavitt
met with Projansky and Keller during the spring of 1965
Leavitt told them that his brother-in-law, Rolland, could
help them raise the price of Hercules stock.“ Even if
improper, we fail to see how this inference of the prosecu-
tor’s constitutes prejudicial error. The evidence of Leav-
it's participation in the conspiracy is substantial and,
given that the test of such errors is whether their commis-
sion denied the defendant a fair trial,“ the supposed im-
proper inference constitutes at worst a harmless error.
Leavitt also complains about the prosecutor’s affixing
the date of September 9th to the third Argus meeting,
rather than September Ist, which latter date Leavitt claims
his counsel and the prosecutor had agreed to throughout
the trial. We again fail to see the prejudice flowing from
this alleged breach of agreement by the prosecution: the
evidence is substantial that Leavitt joined and acted in
furtherance of the conspiracy before and after September
9th and/or September Ist.
31 Now, in the spring of 68 Gerald Leavitt meets with Irving
Projansky and Arthur Keller at the First National Bank of Lincoln-
wood. They diseuss Hercules Galion. Irving Projansky told Leavitt
that he was unhappy with what was happening with the Hercules
Galion stock. So what does Gerald Leavitt say? He says, “I got
a brother-in-law. His name is Rolland. He can really help you
out with the price of the stock. He can really get Hercules Galion
up in price.”
Transcript at 9139. An objection was made to this portion of the
prosecutor's summation. Id. at 9203.
32 Dnited States v. Socony-Vacuum Oil Co., 310 U.8. 150, 239-40 (1940) ;
United States v. D’Anna, 450 F.2d 1201, 1205-06 (2d Cir. 1971):
United States v. Dibrizzi, 393 F.2d 642, 646 (2d Cir. 1968); United
States v. Dedlesandro, 361 F.2d 694, 696-97 (2d Cir.), cert. denied,
385 U.S. 842 (1966); United States v. Angelet, 231 F.2d 190, 192 (2d
Cir.), cert. denied, 351 U.S. 952 (1956).
3695
3la
E The Lower Court's Refusal to Grant A Motion
Fer Change Of Venue a
Appellants complain of two judges’ failure to grant their
motions made before and at the beginning of the trial for
a change of venue to Chicago. The motion was first denied
decided to grant the defendants 16 peremptory
i
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UNITED STATES COURT OF APPEALS
FoR THE SECOND CIRCUIT
At a Stated Term of the United States Court
of Appeals, in and for the Second Cir-
cuit, held at the United States Court-
house in the City of New York, on the
twenty-second day of June one thousand
nine hundred and seventy-two.
Hon. LEONARD P. Moon
Hon. J. JOSEPH SMITH
Hon. Pau. R. Hays
Circuit Judges.
Invinc PROJANSKY, ARTHUR KELLER, HARRY BRAININ,
SruarRT PROJANSKY, FRED WEITZ, MARK ROLLAND, SPERO
Furia, GERALD LEAVITT, MICHAEL GEIER, MURRAY PELTZ,
Burton, BuppY KozAK, HARRIS NAGORSKY, HERBERT WER-
MAN, EDWARD WETZEL, ZAFE ZAFER and DAVID ZISFEIN,
Defendants,
InvING PROJANSKY, HARRY BRAININ, GERALD LEAVITT,
MICHAEL GEIER, ZAFE ZAFER,
Defendants-Appellants.
87b
Appendix B
Appeal from the United States District Court for the
Southern District of New York.
This cause came on to be heard on the transcript of rec.
ord from the United States District Court for the Southern
District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby
adjudged, and decreed that the judgments of said District
Court be and they hereby are affirmed.
A. DANIEL Fusaro
Clerk
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