Petition for Writ of Certiorari — United States v. Johnson

Supreme Court brief1946

Ask Donna

What actually matters in this document.

Text

eS ie eer

Nos. Modan Hae a

16.

Fath Supreme Court af the Bnited sits,

a 1odh .

Ocronrie. Term, po4ae (O45

eee Ee re . 8

_ 7 ~ ta $ ‘ is , ‘ z a} as

“Pre UNrrep Staves OP AMERICA, PETITIONER

: GEA ROG Meroe?

~Witniam R. Jonson

~ THe Unirep Stares ok AMERICA, PETSTIONER

Jvck Som MERS, Jawes A, Harrigan, Wraaas at tak,

KL. AND StTvari SoLowon ‘Brown.

: “¢ a ; ; |

UITION- FOR WRITS OF CERTIORARE TO THE CNITED : :

PATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

[ROUIT: . 14 os asi i : ‘~~

ie a a é 2

otmatwvine ”™ a ’ ~ > pes ~

. a

° - e t

Lal . . ° ‘

. .

oi”

oi?

ou"

INDEX

ee eT

sgn 3

- arnt!

‘ “ ; Se ae : ‘ Page

¢ Opinions below... _ »* aes 2

Jurisdiction... . ais whe ee

Qrestion presented sane cae: accusigice VE

ayy 5 Stew rer eerreienvilaln dated sBae o eam e mpl gee

‘Prior proceedings... __. Oe eieubtchars ’ 4

: Tria “background of case._. - SS Re na 9

rie “Theory of prosecution —“ ‘ow snershig of gambling

houses”’ and ‘ ‘expenditure theories of proof. cee 9

Goidstein’s testimony. -. ; = ORES |

_ Relat ionship of Goldstein's testimony to “expendi-

: ture’’ theory of proof. .. nase eie ak tae is Aan 13

Cross-examination of Goldstein... _. eel Rete De. oa

Corroborajgon of Goldstein’s testimony - - . - - - - fae 20

Allegedly newly distovered’ evidence -adduced‘on motions <

for new trial__- ; aan 24

: Evidence of alleged admissions by Goldstein of the

falsity of hfs testimony. ____. Sa se 25

Hess, respondent Jolinson, and Johnson’ s brother. 25

Green B ; area ara pea 26

“3 ‘Statements and ‘conduct by Goldstein allegedly in- : :

consistent with his trial testimony. __- - sceus 28 =

Bon Air...... yee ee 28

Albany. Park Bank Building: Tax returns........ |. :. 20

Escrows...__. Sees es Seabee 35

Hearsay and cumilative ev idence. ‘o 36

Action of trial court on respondents’ amended» motion- aus 39

Reasons for granting the writ. iork eames ns 41

Conelusion ; ES ad VY RP : Pe ae tht aes 2 54°

ieee CVEATIONS

Cases: | ; j . ;

Baird v. United Stairs, 279 Fed. 509 Persia: a 49

Johnson v'. United States, 32 F. 2d 127. ; ce

Larrison v: United States, 24 F. 2d 82... __.- -... 49, 50

Long v. United States; 139 F. 24.652. : Aah We EK. 49

Martin v. United States, 17 F. 2d 973_- ware 49.

Pettine v. Territory of New Merico, 201 Fed. 489. _ _.. 49

State-v. Mounkes, 91 Kans. 653, 138 Pae. 410. _ OR:

United States v. Johnson, 1 23 F. 2d 111, reversed, 8319'U_S. ‘ ao

Sage 8c Ok 11 4

United States v ‘Seine, 142 F. 2d 588 ld : 6

United States v. Skidmore, 123 F. 2d 604 pce rtiorari de nied,

315 U.S. 800 Seth ethan ecabekeak i die sidan sWak noe Kaied 1]

Weiss v. United Statee, 122 F. 2d 675... " TA a

Miscellaneous ; cnags

Criminal Appeals Rules, Rule 2 (3) _-_-- SE AE Hie. & j eh

j . . ‘ e (i)

49744—45--—-1

a 7 , ,

Inthe Supreme Gourt of the Winited States

October TERM,- 1944 :

No. 1354

Tue Unirep Srares of AMERICA, PETITIONER —

Wittam R. JOHNSON

No. 1355

THe Unirep States OF AMERICA, PETITIONER

v. ‘\ .

Jack Sommers, James HarrigaAN; WILLIAM LP.

KELLY AND Stuart Soromon Brown

PETITION FOR WRITS OF .CERTIORARE TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT. : :

The Solicitor General, on behalf of the- United.

States, prays that’ writs of certiorari ,issug, to

review the judgments of -the Cireuit Couft of

Appeals for, the’ Seventh’ Cireuit (AR. 237),

' The record in this case consists of three separately printed

records, the original ‘record in this Court on review of re

-pondents’ convictions (Nos. 4 and 5, 1942 Term) ; the record:

nade on respondents’ petition for certiore ri for review of the

» (1)

reversing the judgment of the District Court and:

granting tlie peepengedite a jew trial. —

OPINIONS BELOW x

Neitdier the meniorandum opinion of the] Dis-

trict. Court denying. respoiidents’ arnended motion |

’ for a new.trial (AR. 133-169) nor the majority

and dissenting opinions inthe Cireuit. Court. of

Appeals (AR. 207-236) are as yet repor ted. The

prior, unanimous opinion. of the cout below affirm

ing the District Court’ s dénial of respondents’

original motion. for a new trial (R. 578-585) is re-

ported at 142 F, 2d 588. The memorafidum opin-

ion ‘of the District Court on the original motion .

(R. 460-516) is not reported. The prior opinigns

of the Cirenit Court of Appeals and of this Court

on appeal from the respondents’ convictions. are

‘reperted at 123 F: 2d 111, arid 319 U.S. 503,

réspectively..’ ee 3

' JURISDICTION.

.The juiigniénts of the. C ireuit Court of Appeals

were entered May 2, 1945: (AR. 237. )-- The

Jurisdict tion of this Court is ee under See-:

judgment f the Circuit Court of Kpoeale afigusing the

action of the District Court in denying gr perer subse- :°

‘quently filed motion for a new trial (Nos. 133 and 154, 1944

Term): and a record of adi litional seouiadinns on respond-

ents’ amended ‘motion for a new trial. .The first record on? |

che motion for a new trial will be referred to by the designa-

tion “R.” and the récord of additional proceedings on the

aniended motion bythe designation “AR.” Reference to:

the original record on review of respondents’ convictions will

be shown by record references to Nos. 4 and 5, 1942 Term.

tion 240 (a) of the Judicial Code as amended by

| ‘ae Act of February 13, 1924, See also Riiles 11

- and 13 of the Rules of Practice and Prc-edure in

Criminal Cases promulgated by this Court on May

7, 1984. :: -

om QUESTION PRESENTED

Whether ‘the’. court . below applied. improper

standards in reviewing and reversing the action

of the District {Court denying respondents’ second,

~amended motion for a new, trial based on allegedly

‘* newly discovered evidence that a Government wit-

néss testified falsely at respondents’ trial.

STATEMENT

Respondents’ convictions were affirmed by this

Court on June 7, 1943. Execution of the’ Court’s

judgment has bint delayed since that time by

proceedings on responderit’s’ subsequently filed

_ original and amendeg motions for a new trial

which purportedly were based on alleged newly

aiscovered evidence. ‘that’ William Goldstein, a

Government w ithess, testified falsely at the trial.

After affirming the action of the trial court in”

denying respondents’ original motion, the Cirenit

Court of Appeals, with. one judge dissenting, has

how “held that the-respondents are entitled to a

hew trial. ' Be ‘

The history of the proce edivigs and the nature

of the review in the conrt .below necessitate .a

somewhat extended statement of facts.

‘

- PRIOR PROGEEDINGS

On March 29, 1940, an indietment in five counts

was returned against the respondents and othe rs *

in the ‘District € gurt for the Northern ‘District of

Llinois. a The first four,.counts charged the de-

fendant Johnson with willful attempts to defeat

and. evade a large part of his income taxes for the.

calendar years 1936-1939, inclusive, and charged

the other defendants with willfully aiding and

abetting Johnson's unlawful attempts at eVasion.

The fifth count charged all the defendants jointly

with conspiracy to defraud the United. States. of

Johnson’s taxes for the vears in controve rsy.- All

respondents except Brown were found guilty on

all five counts. Brown was found guilty’ on

Counts 3 and 4 the substautive counts’ for 193

and 1939, and on the conspiracy eéount. Johnson

was sentenced to coneurrent sentences. totaling five

‘years’ imprisonment and a $19,000 fine. Lesser

concurrent sentences were’ imposed on the other

ee Enited States v. Johnson, 319 CLS

3, 505-506. & ° :3 ies ee

= appeal frony the. judgments of myiction, the

- Cireuit Court of Appeals reversed principally on

the ground that the indictment was returned by

an illegally constituted grand jury. United Stutes

"The indictment was dismissed, as to four defend: ants prior

to trial, three defendants were acquitted by the jury v. and the

' defendant Flanagan died pending review of the judgment of

_ conviction against him. See R. 461, n. 1: a4 nited States V.

Johnson, 319 U.S. 5038, 520. n. 1,

ae. tar

Jehuich, 123 F. 2d 111 AC, ©. ‘-. 7). . Phas.

Court granted certiorari and reversed the decision, |

of the. Cireuit Court of Appeals (319 U. S. 503), .

sustaining the convictions of all respondents.

On June 25, 1943; three weeks after this Court

affirmed. the convictions, counsel for respondent,

Johnson wrote to the Attorney General, charging |

_ that Goldstein had committed perjury, requesting

that an investigation: ‘be made and criminal pro-

ceedings instituted against him, and submitting

affidavits: intended to prove the. charge ‘of, per-—

jury: GR. 60-80, 159.) . An extensive investiga-

tioy was conducted by the Government; the results

of which demonstrated to us that Goldstein had

“not testified falsely at the trial.” (See letter.

written by the: Solicitor Gener ‘al; as Acting~.At-

- torney} General, to respondents’ -counisel. on Sep-

tember 13, 1943, R. 265-266. ) ‘ on

In the meantime respond. ‘nts toek ste ps to and

subse quently did obtain a remand of the case to

_ the trial court for the filing of a motion for a new

trial. (R. 9-10.) The nrotion (R. 13-17), filed

on October 29, 1943, with leave of the trial: court —

R. 12), purported to. be based on allegedly newly.

voit ed_ evidence that Goldstein had testified. ”

talse ly at responde ants’ trial. Numerois affidavits

were submitted In-support of the motion (R. 81-

242) and others were tiled .later (R. 336-3: 38).

Respondents also’submitted a brief in support of

‘the motion (R. 17-55) ‘and the Government filed

an answer (R. 55-58), a brief .in opposition CR.

{

= io

° j \.

ae : 6

& 7‘ ae |

280-314); and a number ot affidavits: (R. 243-279,

315-316, 339-453). A hearing on the motion was -

had on: November 15, 1943 CR. 454), before J udge

Barnes (see R. 534-536); who had presided at, the

‘ respondents: trial (Nos. 4 and 5, 1942 Term, <<

_R..1).: The trial court filed a comprehensive .

opinion on December 28, 1943 (R. 460-516) and

three days: later entered an order denyi ng the

motion (R. 534-536). ey

‘On appeal the’ Cireuit Court of Appeals unani-

.mously affirmed the ‘order ofthe trial court:

(United States v. Johnson, 142 F! 2d 588 (C. C. A.

7; R. 578-586) ." In doing. so the court ‘stated

that. it had “carefully considered the record be-

fore us and the. action of the trial court” (R. 583),

that it equid not: say ‘‘that the so-called néwly dis”

covered eyidence inevitably leads to the conciu-

sion that Goldstein had testified falsely’? (R. 584)

and: that the .trial court had not abused its ‘dis--

cretion in denying the motion (R. 583, ‘84, a7 5). :

Respondents then filed a petition for certiorari |

(Nos. 153 and'154, 1942 Terni), which we opposed.

Shortly before the convening of the 1944 term of

. this Court’ and while the petition for certiorari ,

“Was pending, counsel for respondents requested -

the Government to inform ‘the -Court: that . Theo’

dore Goldstein, William Goldstein’s son, had re-

cently filed income tax returns covering the.

rentals from - the: Albany Park Bank’ Building: —

~° Tn line with his testimony. Ww with respect: to other

i Fs | : ; ‘a ;

| + f ‘ ° P “ : :

‘oa ~ :

i ; ,.. *

ibe - A

“properties, Goldstei “ADL had testified that “he pur-

chased the Albany Park: Bank Building at re-_

spondent Johnson’s request with money furnished

me Johnson and took title in.the name of his son.

Theodore, and that®subse ‘que ntly a quitelaim deed

on the building -was delivered to Johnson. (Nos. .

‘4 and 5, 1942 Term, 2 R. 56-97.)

. Through an. inv catization conducted by the

Nevins of Internal Revenue; we verified the fact

that ‘amended and delinquent, income tax returns

on the Albany -Park Bank Building had. recently

been filed by Theodore Goldstein, and also ascer-

* tained ° the circumstances under. which they were

tiled, which were, briefly, that. the revenue agents

in \ Chicago, ignoring Goldstein's protestations

that, his son was only ‘the record title holder and_

é not the actual owrier of the’ ‘building, had insisted

‘on. the filing of the returns on the theory that

Cheodore was liable for tax om the rents” from ‘the’

building because he was the record title: holder.

While we believed that the cireugnstances under

which the returns were filed were such as to. dis- -

sipate any relevance the filing of the returns might —

otherwise: have had, we acceded to respondents’

request. ° In “a supplemental memorandum. + in

opposition we informed the Court of the filing of

the returns and of the circumstances under’whieh

they were filed. On motion of the present re-

‘spondents, the ‘Court’ deferred consideration of

‘the petition for certiorari conditioned upon the.

649744— 45—2 hee ?

prompt filing in the Cireuit Court of Appeals of

a motion to-reopen proceedings on the motion for

new trial and until the disposition of the motion

by the Circuit Court of Appeals. (AR, 20-21,) °

This resulted ini the second remand to the tr ial

‘court (AR. 18-19) and dismissal of the. petition

for cértiorari. ;

Pursuant to’ motion of the pespondtenta (AR,

| 93-25), the trie court ordered the production of

the iggome tax ‘returns filed by . Theodore Gold--

stein (AR. 26-27). ‘Respondents then filed an

amended motion for a new trial (AR. 27-28), re-

lying primarily on the filing of the returns by

Theodore Goldstein to show that William. Gold-.

‘stein: testified falsely at -the trial. The Govern- |

~ ment filed_an answer ‘togethe Y with several afti-

davits whic h showed the innoc uotisness, so far as |

“the char ge against Goldstein was concerned, of the ©

filing of the returns by Theodore Goldstein. (See

AR, 87-112:) ° Respondents filed a reply g(AR. °

112-182) and the hearing gn the motion, held ‘on

December 11, -1944, was again before Judge

ber 15, 1944, Judge Barnes filed an opinion in which

he exh austively, reviewed the a of and pro-

ceedings in the case (AR. 143-169). and again

‘entered . an, order denying the motion for a new

trial (AR. je). ;

On this appeal,-, the majority of the’ Circuit

Court of Appeals (Major, .C. J.; and Sparks,

C.J.) held that the trial couit had abused its dis-

2 Barnes, the trial judge (AR. 133). -On Decem-

Fa : . 9

_ cretion in denying the. motion, basing ‘its opinion

primarily on the evidence submitted on the orig- |

inal motion, (AR. 207-230.) Judge Minton ‘dis-

sented, stating, among’ other things, that addi-.

‘tional evidence adduced in: support of the motion,

added nothing to the proof that was submitted to:

the court. on the original motion »w hen. the court,

through the same three. Judges; had, after having

carefully considered the reeord”’ (C1@ 583),

affirmed the action of the trial courtyin denying’

the motion ( AR. 230-236). It-is this. ac tion of the

majority in granting respondents a. new ‘trial

_ whic “h we are naw requesting: this’ Court to review.

TRIAL BAC raat ND-OF C ASE

‘ 9

Theory. of prosecution—‘owne rehip of gambling

houses’” and “expe nditune” theories oy: proof

The trial theory of the prosecution was that re

spondent Johnson was the proprietor of a ‘number

of gambling houses in. and around Chicago: from

“which he derived large amounts of unreported in:

gome, and that other defendants posed as the -

owners, thereby concealing Johnson’s interest.

The Government undertook to show that the.\ vari-

ous gambling houses, although ostensibly sepa-

rately owned, wete actually éperated as a unit,

thus indicating central control and ownership, and -

that ‘Johnson was so identified with the gambling

houses as to prove -that-he was the true ownex.

“( ‘onsiderable: evidence was also’ intredue ‘ed to show

: 10° ,

the magnitude of the operations. of these houses,

including their currency eX¢ hangegt tr ansactions

which reflected ineome to Johnson i in excess of t

amounfs he reported in his inceme tax ae

The evidence.on this aspect of the. case has heen

referred © to throughout the proceedings as the"

“ownership”. theory of proof. As this Comt?s

opinion in the case shows, this was the predomi-

nant part of the Government's case.” This C ourt .*

stated that the evidence ‘amply: justified” the

jury in finding that the gambling houses were

under a single domination and that Johnsen ewned s

a proprietary interest in tle. network of gambling

houses and was not merely a patron or an océa-

Sional Accommodating dealer when other patrons -

desired to play for stakes beyond the conventional.

Tip (319 U. S., at 516-517) and that the jury,

having been justified in finding. that the individual

defegdants : were ‘screens behind ‘which Folneee

operated, was also Justified by “solid proot”’

finding that there we re w innings from. these slay

on which Johnson attempted to evade income tax

payments: The testimony of Goldstein, now held

to be false’ bythe Cireuit Court of Appeals, had

“little bearing on this, the * ‘ownership’ theory, of

ago which turned on the i issue eof the proprietor-

“ship of gambling houses. rege

Goldstein’s te stiniony. was a part ofthe. “ex- .

penditure” theory of proof which this Court stated'e -

_ “reinforced” .the conclusion that Johnson had

. large, unreported income, (319 U. BS... at. SIT.)

u a °

The proof on this theory was. designed to how

that Johnsoi’s cash expenditures during each off

three of the? four years covered by the indictine ont.

were in excess of his available cash resources and

‘reported income. Our showing on some ‘of these

expenditures was made initially through the testi-

mony of Goldstein who, like some. of the persons

who testified for the Government in connection

with the “ownership” thedry of proof, was an:

“obviously “unwilling

i. ment. (319 U: S: at 516.)

Goldstein’s test mane

Goldstein was shown certain eSCTOW Acree ments,

later introduced, in evidene e, which revealed prac-

tically all of om details of the purchase of several

It will be seen later that Goldstein’s testimony regarding

the purchase of certatn properties necéssarily had to concern

either respondent Johtison or William R. Skidmore or both.

Goldstein had acted as attornéy for Skidmore (Nos, 4 and 5,

142 Term, 2 R. 65) and by Johnson's own admission had.

‘also acted: for Johnsdt in the purchase of two of these prop-

erties (4d., 3. R. 982-083; see also id., 3 Ry 974, 975; 4 RK. 8).

Both Goldstein and Skidmore had been indicted with John-

‘son and the other respondents, as Goldstein testified on cross-

examination (/d.. 2 R, 65). While the indictment was dis-

tkssed as to them befor etr ial, Skidmore was later convicted

of income tax evasion on a previeus indictment unaer the

“expenditure” theory of proof-+-proof which did not, how-

ever, involve any of the properties as to which Goldstein

testified in this case. See United, States v. Skidmore, 123

IP. 2d°604 (C. C. A. 7), certiorari: denied, 315 U. S. 800

(No. 813, 1941 Term). ‘Goldstein was already tinder. indict- °

ment: for perjury, as he also testified on cross-examination

, (Nos. 4 and 5, 1942 Term, 2 R. 65),

witness for the Govern-’

ee geen ae

it ° ‘ - >

properties and of two escrow deposits on uncon. -

suramated sales, including the-fact that Goldstein

was the purchaser and that, as-to all of the pur-

chased properties except one (Sunny Aeres

Farm), title: had. been taken in _sorieqne- else’s

name, @. g., his leew partner Isador Goidstein, ‘or’

his son Theodore: or one of his stenographers,

these persons apparently: still being: the ‘title

holders of. record, . This resulted in testimony by

Goldstein Which consisted of facts shown by the

escrow agreements and the following tltree facts:

testified to with respect’ te each iteni: That he’

maq@ payme nt in currency; that the moriey.. was

givén to him by respondent Johnson with the’ re-

quest that he make the purchase or escrow deposit,

as the case might be; and that a quitelaim deed’:

was subsequently, delivered to Johnson, except in

the case.of the two escrows involving unconsum-

Oe. < ip Rae

mated -sales. «( Nos. 4 and 5,, 1942) Term, 2 R.

62.) The properties involved wereras follows

~ Sunny. Acres) Farm (consisting of: two

~ parcels, one of Sumiy Acres and one of ad-

joining Du Page County real estate, pur-. |

chased separately ) ; Sab

Bon Air preperties (vghich inieluded the

Bon: Ain Country Club, the Green House,

the White House, and-a gas station, all

purchased separately )-;

Curran Farm (adjacent to the’ Bow Air

properties) 3°

‘

ry 13. eae | é

Albany. Park Bank Building (in which

ras loce ated the'Lawrence Avenue Currency

Exchange, operated by respondent Brown

and used by Johnson's gambling house-epy

erators, and the Aibany Park Safe oe

‘Vault Company) ; io

9730 So. Western Avenue (in ‘whic h the

_Western Club, a gambling establishment, .

/.. Was operated for a time by the defendant

Creighton) ; and ‘

The Dells. —

The two escrow deposits were in the amounts of:

‘$10,000 and $7,500, the $10,090 deposit being. made

on, property lying betweeh Bon Air and the

Curran Farm rea y

Relationship of Goldstein’ s testimony fo *‘ex-

7, eee _penditure” theory of proof

{The full: purchase prices of these properties, as

well as: the. amounts of the two escrows, were

included in ‘the Government’s* computation of

~ Johnson's expenditures and cash receipts, the

computation showing atotal excess of expenditures

over cash receipts inthe amount of $640,387.86

for the period J9382 to ‘19: 39, inclusive. . (See chart:

attached to the inside.ef the. hack cover of our

Smet on Reargument, Nos. 4 and 5, 1942" T erm.)

That a part of these property and escrow expe ndi-

tires Was properly charged. to Johnson, was

vertied by Johuson’s ow testimony. He ‘“or-

roborated Goldstein's testimony refrding - the

ee ee

purchase of the Sunny—Acres ” Farm and adjoin-.

ing} eal estate, ene full ownership of those

priorities (id., 3 R. 982-983); and stated that he

had paid. one- half of .the purchase price of each

of the other properties except the Albany Park

Bank penaing, admitting to one-half ownership

of them.’ ;

Otherwise, Goldstei in’s testimony was pertinent

”

gnly insofar as it. tended ty corroborate the Gov-

ernment’s position as to two other expenditure

charges against Johnson—the amounts expended —

for improvements on Bon Air and the property .

at 9730. So. Wostern Avenue, On the chart we

submitted tothtis Court: with our Brief on Re-

argument (supra, p. 15), the total amount charged

_ arabnst | Johnson on Bon Air (including the Cur-

ran Farm), mostly for improvenients, was #707,

645, whereas. Johnson. said he and William R:~

Skidmore each owned a one-half interest in the

property and that he, Johnson, had spent only

‘ approximately $354,000 as his one-half share of

the cost, mainfenance and operation of the prop-

-erty. (d.53 R.955-956, 983.) * The improvements

on the jpreperty ‘at 9730. So. Western “Avenue |

amounted to only $22,400. At the trial, the e harges

of expenditures, for improvements on these twe

. properties raised the issue whether Johnson was

the sole owner of the properties or only a one-haif

owner with Skidmore, the Bon Air charge being

‘Nos. d-and 5, 1942 Term, 3 R. 950, 952, 955-057, 960-961,

< ,2 iD J

the only’ teens of substantial i amount. ‘A great deal

of evidence ‘wis introduced by both ‘the prosecu-~

tion ‘and défense on the issue of ownership of Bon

Air and the* issue was submitted to thé. jury

“through the: testimony of expert witness ( ‘lifford

(id., 4B. 4452 ), who testified for the Govern-

ment, and of expert witness Sullivan (id.,.3 *

991-995), who testified for the defense. °

Goldstein’s testiniony clearly had no significant

effect on the jury’s conclusions regarding these

disputed expenditure items. The computation by

Government witness: Clifford was stbmitted to the

jury at the end of the Government's case in chief

and through ‘his testimony the jury was advised

that, on the basis of the Government's evidence,

‘the total of the eXCeSS of Johnson's expenditures

over cash receipts was $474,349.54. (/d., 4 R. 15.)

When Johhgon took ‘the’ “witness stand later he

admitted expenditures of ‘approximately $200,000

not charged against him by the Government. (R.~

513-514.) This more (han covered the total dis-

‘puted amount ‘on the purchase of the, properties .

and the two escrow deposits. No further compu-

_ tation was submitted to the jury inchiding these.,

additional expenditures.’ And, while = |

tystimony corroborated the Government's position |

‘The admitted additional expenditures were: added to —

‘the chart we sukmitted to thigy Court in our Brief .on

Reargument, that chart showing a.total excess of expendi-

tures over cash receipts. Sf $640,387.86 after minor adjust

nents on Some of the other items.

6497 44-45-38 - ‘

re mite TT oa . :

that Johnson was the sole owner of Bon, Air and

chargeable for the full- amount expended for im-

‘provements on that property, Goldstein’s’ testi-

mony was nf the basis of the-charge for the Bon.

_ Air improvements nor could it have been Tegarded

and tu 8

by the jury as anything more than eorrdborative

evidence, In the first place, as will be shown

‘later, Goldstein made it’ plain on eross-examina-

tion that he was testifying as to who gave him the

money to purchase these properties, not as to the

extent of Johnson's ownet ‘ship in them. ‘Secondly,

. the Government introdneed direct preof that

Johnson was the sole owner of Bon Ait, ine luding

Johnson's own prior admissions and his state-

nents to an accountant to the effect that he alone

had paid for the Bon Air properties and improve-

ments thereon” The vissue whether Johnson was

»* Two revenue agents related a @mnversation which they

chad with Johnson in Movember of 1939. . Both stated that

Johnson told them he was the owner of 9730 So. Western

~Avenre and of Bon Air, (Nos. 4 and 5, 1942 Term, 2 R.

117-118; 4 R. 8.) One testified thatgohnson said nothing

~ ats te athether-Skidniore had an interest in the property

at -9730-S0. W estern Avenne although he had asked’ him.

(/d7., 2°R.-118.) An accountant testified that Johnson told

him that all of the stock: of-the Bon Air. Catering’ Com-:

pany. the corporation which oper: ated Ben Air, should he

charged to him (éd..°3 R.- 775-776) and that the cost? of .

iuprovements ‘on. the Bon Air property entered on the

- catering company books as assets and credited to Johnson

and’ others was alf advaneed by him (id., 2 R. 5% 54).

Johnson also made the latter statement. to a revenue agent’

“in November of 1989; (/d.. 4 R. &.)) In a formaLstate-—

ment given by Johnson on March 27, 1939, and imtroduced

in evidence, Johnson stated that he had had po business

° \ S| .

: 47. ae

the sole or only one-half owner of Bon Air (in-

cluding the, Curran. Farm), and this chargeable

with more than he admitted expending én’ the

_ properties, Was also the ‘subject matter of cen-

siderable evidence © introducéd by. the defense."

For present purposes, however, the important fact

_ is that Goldstein’s testimony could have had only

slight; if any, weight in the minds of the jury in

‘transactions with Skidmore, except a loan he‘ had made to

Skidmore, (/d.. 2° Re 411.)° .Skidmore’s pame did not

appear on the Bon Air records. (/d.. 3 R. 900, 913, 982.)

- For acmore detailed summary of the Government's evi;

dence on this ownership point, see our Brief on “Reargu-

ment, Nos. 4 and 5, 1942 Term, pp. 102-194, 106-107. In, /

that brief we of course inchided Goldstein's testimony in

oltrystimary of the evidence’ supporting submission of the

full amount of the Bon Air expenditures to the jury.

‘Johnson asserted -that William R. Skidmore owned a

one-half interest in the Bon “Air properties and: Curran

Ffrin (as well as in The Dells and property at 9730 So. :

Western Avenue); that Skidmore had paid one-half of the

expenses on these properties; that Skidmore had bought

the properties but did not want title taken in his name;

and that it legstood in his, Johgipon’s, name. (/d.. 3 R.

G55-957, 961-965, 967-970, 979, TS2, 983-984. ) The de-

_fendant-Wait, formerly employed at Bon Air, gave similar |

testimony. (d.. 3 R. SUG—SOS GOO, 910-913.) Two wit-

esses testified to facts tending to show’ that Skidmore

was involved in the purchase of Bon Air, (/d..3 R 575-Ex.

J, 576. See also 3-R. 914-915.) Four-witnesses recited

‘iustancéS of payment @ Bon Air’ bills by Skidmore or

charges to him. (/d., 2 R: 8b; 3 R. 916-917. 919-920 (Ex.

-J-7A to I-TE. 3 R. 1087). 930.) Several former Bon Air

employees testified to acts of ownership by Skidmore. (Zd.,

1 SOO, 916, 922, 923, 925, 928: see also id. 3 KR. 956.) For

amore detailed sutmmary of respondents évidence; see Brief of

William R. Johnson on Re- Argument, No. 4, eS Term, /

Py. 4078. a

ee A e

connection with the charge of Bon Ait improve-

ments. ; .

The question whether J ohinson had. actually

made these disputed expenditures was itself only

an incidental. issue. Even if all of the Govern-

ment’s. evidenee regarding: these: properties and

two escrows were rejected and Johnson’s testi-

mony as to all of. them accepted in full, including

his testimony ¢hat he spent some $350,000 less on —

Bon Air and the Curran Farm than he: could. be -

charged with having expended on the basis of the

Government’s evidence, Johnson’s expenditures’

would, still exceed his cash receipts by a. substan-

tial amount (R. 543-514), showing that Johnson

had unreported income, The Government was

not of course required to prove the exact amount

of Johnson's oe income; as this Court has

stated. (319 U.S. at 517.) Accordingly, 'the ex-

clusion of all of oss disputed expenditure items

would not alterjthe fact that the ‘‘expenditure”’

theory of -proof reinforced the “ownership”?

.- theory of proof. In’addition, the jury may have —

convicted respondents ‘on the “ownership” theory

of proof alone, the evidence on that theory being

amply sufficient of itself to support. the convie-

tions, as this Court has held (supra, p." 10).

C rosseé tamination of Goldstein

The 1 respondents have consistently attempted to

obscure the actual extent of Goldstein’s testimony,

is.

<<”

asserting that Goldstein placed | the ownership of

these properties in Johnson, and have finally per-

suaded the Cireuit- Court of Appeals to accept this -

view. ‘It is pertinent , therefore to ase ertain

whether. Goldstein’ s testimony 1 may have been so

interpreted by the. . .

As already stated, Goldstein citeumspectly testi-

_ fied that he purchased these propertiés and made

the two escrow deposits at- Johnson’s request with

money furnished. him by. Johnson and that sub-

sequently quite aim’ deeds were. delivered to John-

son. On cross- -exainination, Goldstein stated thats

he did not know whether Johnson got full title

to the property at. 9730 So. Western Avenue and

was not Sure’ whether anyone else was interested &.

jn thé-property: (Nos. 4 and 5, 1942 Term, 2 R....

64.) After being shown the deeds to Johnson, hie _

~ recollee ted. that | Wohnson received an -: “undivided -

. one-half interest by conveyance from Ann Homan. .

and her husband, who got title. through Isadore

‘Goldstein, Goldstein’ s nominee, and stated that, as’

he remembered, Skidmore got the other half.

" (d., 2 R. ‘64, 65.) - He reiterated, however, that

he was, positive: it was Johnson who ee him the

money to make the pure chase. ' (Id., 2 R.- 66.). As

to The Dells property, Goldstein testified on cross-

examination that ‘‘I don’t know, but that may be

" so} that Mr. Johnson only owns half of the Dells. °

property and only paid half of the price.”’ (1d.,

2 R.-67.). Accordingly, Goldstein’s testimony was

i ot

> % *

that Johnson was not, the sole pwher of the prop-

erty at 97: 30 So. W estern Avenue and might not

“be the sole owner of The Dells, despite. the fact

‘that Johnson had given him -the money to pur-

chase both propeities. Ve.

Goldstein’s testimony therefore clearly reflected

that he was testifying as to who gave him. thé

money to purchase. the properties, not 2s vo who

owned, them. * The limited scope of his testimony

is especially apparent in connec tion with the prop-

erty at. 9730 So. W estern Avenue. Since he testi-

fied that Johnson only owned a one- half interest

in that property, his testimony. could ‘hardly ‘be.

taken as evidence that Johnson was the solé owner |

and thus chargeable with the full amount of the

expenditures for improvements.on thé property.

Significantly, Goldstein Was not cross-examined

at all with respect to any of the other properties

or either of the two escrows, Johnson’s counsel

stating that they had no further information bear- :

‘ ing on the matters regarding which G oldstein, had

testified. “(1d., 2 R: 67.) - Although Goldstein was

kept under subpoena by respondents until the close

of the trial six weeks Jater, 310 attempt Was made

to: cross-€ xamine him further. ( R. 488-489.)

Corroboration of G oldst in’s testimony

3 y

. Goldstein’s testimony is in large part corrobo- .

rated by the trial record or not: disputed. Re-

"21

spondent Johnson himself’ corroborated Gold-

_stein’s entire . testimony with respect -to the.

pure hase of the. Sunny Acres Farm and adjoining: -

Du Page: ¢ ‘ounty_ real estate, admitting that. he

was the sole owner of the-two pieces, of property.

(Nos. 4 and. 5, 1942 Term,.3 R.. 982-983.) Title

to the Du Page County property, like the other

properties as to which Goldstein testified, was

taken-in the name of a-nominee, Isadore Gold-

*. stein, and a quitelaim deed subsequently delivered

‘to Johnson. CId., 2 2 R. 60.) The deeds to Jolin-

son for the property. at 9730 So. W éstern Avenue.

were ii. evidence, showing that a one-half inte rest

Was ¢ Apter to Johnson, as Goldstein said. (Id. ae

2 Ru 64: : Johnson ‘admitted that he owned a

one- wr interest in The Dells (id,, 3 R. 955,.977),

from which it may be. Inferred that he, received a

deed. for at least the one-half inter ‘est Goldstein

unequivocally. testifie vl. he had. Then: there was

Johuson’s admission, ’ now corroborated by the

affidavits of Marth and Peacock (infra, p. 38),

That Goldstein transferred full title for Bon os

to him and also delivered the deeds to him (td., 3

R. 973-974), facts whith not only eorroborate

- Goldstein’s testimony that quitclaim deeds to the |

Bon Air properties were delivered to > ‘Johnson,

but tend to: prove that it was Johnson who gave

Goldstein the money to purchase -the prope ties, :

~ regardless of whether Johiison may later have

am Ss.

FI, ae ee : ee a

_quiteiaimed a one-half ” Thterest’ to ’ Skidmore..

Fur ther, Johnson's admission that he had a one-

half ‘interest in, Bon Air, the Curran Farm, The

Dells and the property at“9730 So* Western Ave-

nue (¢d., 3 R. 96 0, 973,977 , 982 , 983) made it as”

_likely as not that he had ‘bon the one to give

"Goldstein- the nroney to purchase those properties. e

Goldstein’ S testimony that he made ‘pay ‘ment ‘in...

currency has’ never, been disputed, and Johrison

was the one person shown by the reeprd to trans-

a ‘aot his. business: in currene y>? admitting, that ne * °

‘h abitualiy carried around $12, 000 ‘to $15, 000 in”

,¢ash in his pockets (id, 3 R. O65, 9%, 985-986).

5 “Further, * although Johnson denied at the trial

that ¢ ioldstein had purchased any of these proper- ,

ties for him, in November of 1939 Johnson told

revenue agents that. Goldstei m had bought the

property at 9730 So. Western Avenue for him

(id., 2°R. 18), that. he owned that property and |

also. Bon Aix: (ibid; id., 4 R. 8) and, when asked

- about the cost © of the properties, referred the

agents to Goldstein (td., 4 R. 8). wcsase 2

Although when he testified - ica the end of .

tlie trial - Johnson denied” giving -Goldstein’ the

“money to pure chase, or of having any interest in, |

the Albany -ark Bank Building, Goldstein’ s testi- -

mony with respect . to this building was corrobo-

»~ rated at the beginning of the trial by an_admission\ @

which Johnson’s- counsel made ~in - his opening

statement in the presence of respondent J ohnson.. *

ay.

n’s counsel stated (id., 2 R.

a “At that time Je ’

Suh}:

We will prove that Mr. Johnson hid .

-absolutely*nething to do with this currency

exchange [locate ‘d in the building], had ra

interest in it whatever, he never eashed a

check there, he never’ exchanged money

- there, he never bought a money order there,

he never received a dime of income from

the place. | —

Mr. Johnson ow nid either the building or

dn interest in the building. It was an‘old

bank building that went broke when banks

went broke in this tewn. It .was. put on

‘the’market to be sold by the receiver, Mr.

“Johnson either by himself or as partner

with somebody bought this building as .an

“investment. It was there being operated. —

The safety: deposit boxes were being rented:

a and operated for the convenience of the

* people in the neighborhood and for others.

“We will prove that there was a woman

p- there i in ¢ harge of these safety deposit boxes

: Johnson’ s trial emia later ncsbed in ‘a brief, w hen the

case Ww as first on appeal from the denial of res vondents* mo-

tion, for a new trial, that he was eniployed be Jolinson the

day before the case was called to trial and made his opening

statement to the jury on the second day of the trial, that he

“undertook to ‘get this complicated story” in his mind in

the few hours avaiJable, that he Was in error in stating that

Johnson had an interest in the building but that as the trial

- progressed he forgot about it and did not ask to make.a cor-

rection after he learned the facts. ‘(R. 334, note.) .

649744-—45,--—4 rae

ee es

and as Mr. Brown’s attorney, Mr. Hess, has

* said, that this building was rented by the

‘. currency exchange for fifty dollars a month,

. I think it was. The money was-going to

the agent athe had charge of the building

-and -being spent: for ‘any. expenses to

~ maintain the building. Mr. Johnson got no

income from this building at all, bat Mr.

‘DUohnson: did own .the building, clit Po

[Italics supplied. ] |

_ The agent referred to was Goldstein, ‘for the

evidence revealed that after the prope rty Was.

purchased. Goldstein reemployed' two employeés

~and became ‘‘spokesman’” for the building as well

us the president of the vault compatiy located ii

_ the building. (/d., 3 R. 587, 590, 595, 599, 601.)

- Goldstein’s agency wiil be seen to explain many

of his subsequent actions with respect to the

building—actions now relied upon by respondents

as showing ‘the falsity of his testimony.

It.is apparent therefore that the issue as to. the :

falsity Bf Goldstein’ s testimony is narrowed to his

testimony that Johuison gave him the- money and —

“requested him to purchase the properties in ques-

tion and to make thé two escrow deposits., Even

this part of his testimony is inferentially corr6bho-

rated by the facts in evidence. ca

ALLEGEDLY NEWLY DISCOVERED EVIDENCE ADDU CED-ON

MOTIONS FOR NEW TRIAL.

The evidence which respondents. relied upon in

support of their motions. for a new trial may be

Fi @Or

‘a

fassified into three groups, as_follows: (1) Evi-—

dence’ of alleged eet Goldstein of the.

2) statements and con-

falsity of-his testimony ;

duet. by Goldstein allegedly inconsistent with his

trial testimony; and (3) evidence which is either _

hearsay or merely cumulative of similar- evidence

introduced at the trial on the issue: whether John-

son was the sole owner of some of these purchased

es: properties.

Evidence of alleged admissions by Goaate of the

falsity of his testimon y | |

Hess, respondent Sohn: and Johnson's s.

brotherz—Respondents presented the affidavits ot

Hess, counsel for Johnson’s co-defendants at the

‘trial; respondent Johnson; and Johnsou’s brother,

John E. Johnson, an attorney. These affidavits

all deseribe a discussion in Hess’ oftice which took .

| plage’ sometime. during the period Feb:uary. to

April, 1941, when Hess was writing his brief on

appeal from respofidents’ convictions. *(R. 245.)

All three affidavits contain. almost identical lan-

-guage, such as -that Johnson said to Goldstein

_ \ Why did you lie?” and that Goldstein replied in

‘ substatice that “‘he was sorry that he did but that

hie was a victim of circumstances. *~-(R. 126-127,

2) 222, 254.) Johnson , adds ‘that such state-

ments by kim and Goldstein were repeated a num-

‘ber of times and that Goldstein said that he was |

sorry, that. he ‘testified as he had.’ (R. 234.) :

These affidavits, intended to convey the idea that

_ are shown by:the record: to be misleading. Hess

‘statements in his ‘affidavit ; he Signed a memoran- °

, 26

-Goldstein admitted the falsity of his testimony,

‘Was interviewed and asked to clarify some of the

dum of the intervl iew W hich contained the follow-

ing (R. 246) :

With respect to the statement in Affidavit

., No. 19, “Goldstein replied in substance that

he was‘sorry that he did.’’ Mr. Hess in-

formed me that he is unable to clarify this’

statement since that is his best recollection

of what was said. Whether Goldstein was

endeavoring to excuse Nimself to Johnson:

for having testified against: Johnson, or was

conceding falsity; Mr. Hess would not say.

Thus, Hess, who says he was present during the’ me

entire discussion (R. 228), would | net say that°

Goldstein had admitted that he t testified falsely,

despite the fact that Goldstein is supposed te

made the same statements numerous tinies.. The

obvious interest of these affiants, as well as the fact

that the alleged stateme uts were made in 1941,

shortly after the trial, and were not. then adduced,

also has a bearing on the weight to, be given the

aitidavits. Reviting these facts, the .trial court

rejec ted the affidavits as worthy of but little con-

sideration, (CR. 478-479.) ei

Green. —Only ene affiant wnequivocally states

that Goldsteim admitted his testimony was false.

Green, a disbarred lawyer working as ‘a salesman

in a bakery shop (R. 477), made three affidavits.

ae ve: | _

In the first one he made no mention of Goldstein’s

alleged admission (see, R. 125-126), despite the

fact that respondent Johnson ,states that Green

-Votunteered to make known his apa

information, regarding the matter” (R. 239).

his second affidavit, executed the day. following oe

first one, Green says, that ‘“‘subsequent to ‘October,

1940”’ (the month the trial ended) ; Goldstein told

him that ‘‘his testimony regarding purchases of

properties forthe said William R. Johnson.’ was

false’’.and that on or about March 15, 1942, Skid-

more phoned Green 'té come over, stated he wanted

“this advice toneerning a partition suit filed by

John E. Johnsen on the Bon Air property, .and-

that Goldstein, who was present, stated that Skid-

more could not, file an-answer in,the suit because

‘he did it would definitely. establish that his

pms testimony was, false. (R. 100-101.) Green’s

third affiday it states that after Goldstein knew

Green had executed the second affidavit Goldstein

Waited for Green outside the bakery shop and_

again admitted the falsity Of his testimony.’ (R.

‘ |

* Engelbretson, an employee at the bakery, corroborates

the fact that Green met, someone and states that he later’

identified the person as Goldstein. (RK. 232- 233.) “ However,

Green. says that it was ‘when he left the bakery shop that he

saw Goldstein walking to and fre .across the street, that

Goldstein approached: him, and that they then had“the con-

versation Green relates, (RR. 216.) Enigelbretson.cpn the

other hand, stiys that when-he and Green were in the tavern

next. to the ltkery shop he called*Greeti’s attention to the

man walking to and fro across the street. (R. 282.)

ida ae ee

216.) - The trial court rejected these affidavits as

too improbable te be true, it beihg unlikely that

Skidmore and Goldstein, a lawyer, would seek the

advice: of Green, a disbarred lawyer, regarding .

the partition, suit ; or that Goldstein, after knowing ° |

of thé execution of Green’s other affidavits, would

seek out Green to tell him a second time that his _

testimony was false; : or that Galdstein would make

a general admissian that his testimony ‘“‘regarding~*

purchases of properties” for Johnson was false .

when it is uncontrovertible that a large part of it

Was true, including his entire testimony with re-

spect to the Sunny. Acres Farm and adjoining _

Du Page County property. For these reasons, the

trial court concluded that Green had discredited

himself, -(R. 477478.)

Statemenits and conduct by Goldstein allegedly.

inconsistent with his trial te stimony

Bon hin + etins, a former employee chs-

charged by Goldstei ‘in for issuing an unauthorized

; check (R. S64, 265,. 267-268), states that—told;

stein told him that he bought: Bon Air for Skid-

more and.that Skidmore gave him thé money ,to

buy it (R. 213). If true, this alleged statement by

Goldstein is directly in conflict with his testiniony

_ that Johnson gave him the money to purchase

Bon Air. However, no reason has ~_— advaneed

by respondents for the aeceptance of Fowler's.

‘statements in preference to those: of ‘tain affhant

Sperling, floorman and special guard at Bon Air

‘29

(R. 104); who states that in June, 1939, Skidmore

gave Garry (cashier at Bon Air (R..105)) a

wrapped package, stating that if contained 850,000

“to be applied against his share of the cost of the

property and the cost and maintenance of the.

Clib’’..¢italies supplied) and that on several other _

occasions Skidmore delivered money in amounts

of $10,000 and $20,000 to Garry, telling Garry to

apply the money on his accomit of cest and. main-

~ tenanée (R. 105). Garry corroborates. the fact.

that Skidmore “gave him the $50,000 on one oe-

easion and £10,000 and $20,000 on other occasions,

but states that it. was for the. payment of bills;

(R. 107.) Tf Skidmore was paying for his share®

| - of the, purchase price of the -Bon-Air-properties in

1939; as Spersing testifies, he of course could not

have given Goldstein. the money to purehi Ise the

propert rty in 1907, when the’ purchase was’ ‘made.

Phis isthe prope rtvy as.to which Johnsen admitted

(iyldstein had transferred tull trtle to hin. And,

as the Government showed on respondents” motion, .

even the insurance policies on BonoAir were trans.

_. ferred. from T heodore Goldstein, the record title

- holder, to- Johnson. See’ particularly, R. 419, ;

431,445.) : ‘

Albany Park Bank Buéliing: Tar .returns.——

[ncongruously, part of respondents’ proof that

Goldstein testified falsely consists of evidence in-

tended to show that Goldstein, rather than: either

Johnson or Skidmore or both, owns thé Albany

bat Park Bank Sida thie building which peng

son's counsel in his opening statement, made in 7

Johnson's presence, stated that Johnson. owned, - |

having either purchased ‘it himself or asa partner.

with sbmebody. Theodore Goldstein is the record:

title helder of tlie building, just as he was for

Bon Air, One of the properties which Johnson

contended he (Jolinson) and Skidmore owned

is. equally.) | | ; , ee

if. ‘On their ame nded motion for a new trial re-

‘spondents placed pivotal reliance upon the filing’

of amended and delinquent income tax returns

by Theodore Goldstein. on the rents from the. Al-

——hary-Piirk Bank Building (AR. 47-74), the re-

turns being the principal new matter submitted,

to the trial court on the amended motion, These

returns were shown to have been filed over Ciold-

stefn’s protest tions that his: son) was “hot the —

actual owner of the building and at the repeated

dnsistence of the revenue agents that ‘Theodore -

‘was liable for tax on the rents beeause he was

‘the record title holder. CAR: 89-112.) .Goldstein

refused to-sign a statement prepared by the reve-

nue agents that his son ‘Theodore was‘the “owner”

of the property; he prepared his own .statement

to accompany the retimms in which Theodore

_ Was deseribed as ** title holde nol record.” (AR.

naman

In view of this’statement and the consistent position

taken by Goldstein throughout his dealings with che rev-

enue agents, the Circuit Court of Appeals’ suggestion that if

aes er ae

111-112.) The circumstances surrounding the fil-

ing*of the returns corroborate. ratlier than refute

the credibility of Goldstein’s trial testimony: re-

- garding the building, even though the affidavits of

revenue agent Wodrick’ (AR. 104-105, 109-110),.

filed by the Gdverument, retlect that Goldstein

does not kiow whether it was Skidmore’s. or |

Johnson’s money that Johnson gave him to pur-

chase the building or, of his own knowledge, who.

the owner is—facts which respondents might. have

ascertained if they had: cross-examined Goldstein

at the ‘trial regarding the purchase of this

building. © Seat ; aig a

Other evidence refleets instances in which Gold-

stein, havityg become ‘*spokesman”’ for the build-

ing when it. was purchased (supra, p. 24), con-

tinued to act as agent for the building. Biockus

states that after the building was placed in re-

ceivership on July 26,, 1943, because of .a tax lien,,

Goldstein’ offered ‘to apply the rents from the .

building on the delinquent taxes. .(R. 198-200.)

Leases were handled ‘through Goldstein ‘arid. -

executed. in the name of Theodere Goldstein, the

record title holder. R. 200-206 ; AR... 76-77,

78-85.) . Sainpson, upon whose affidavits the Gov-

Theodoré was not the beneficial owner of the property, the

“returns were perjuriousy is incomprehensible. Whether the -

record title’ holder was: legally liable for the taxes, and

whether he was legally entitled to personal-deductions, are

of course questions not befére the courts in ‘this case. *

ernment has relied, in an affidavit submitted by

respondents ‘states that Goldstein made the state--

ment to him-that ‘Johnson never. had any inter-

_ est in the property and has nothing whatever to

do with it.” (AR. 77-78.) The statement was

supposed to have heen -made in a conversation

regarding a lease option. It c¢an be: interpreted

‘as mei ming that Johnson has neve y had anything

to do with the operation, maintenance or, leasing

of the building and must: be considered with rela-

tion to the admission of Johnson’ < counsel that

Johnson owned the: building, having either bought.

it himself or as a partner with sonmiebody. Nat-

urally, Goldstein ‘confinued to act as agent for

the buildiag, for Johnsen would not be likely to

“assert his ownership while his case was still, pend.

ing in the courts and ‘his property all tied up by’

a Government tax, lieh. n*

Blockus also states that in his Yenve rsations with

Goldstein regarding the state tax ien on the Al--

bany Park Bank Building Goldstein Said the prop-

erty was. his and also that the Gov ern) ent had a

lien’ on it. (R. 198-200.) - Géldstein’s Statement

that there was a lien on the property Was Jh-effect

an assertion that Johnson owned the buildind for

the lien is one on all funds-ahd prépérty belohg-

ing to Johnson. (See R.-252, 249-2500" Cre ot

"The Circuit Court -of Appeals’ reaction to this tax lien

was that Goldstein “had no more right to-collect and retain

the-rent without authority from Johnson, which he did not’

? ’ ‘ j . *

have, than he had to collect reat on any other building te

. 7 ° s

; Goldstein's alleged statements that the ‘property.

Was his—a state ment which would be inconsistent:

with the statement that there was a lien on the

/ property—was supposed to have been made when

Levine and Sampson were present at, the county

treasurer’s office. Both Levine and*Sampson testi-

fied that ies ese present during the whole con-

} . . .

versation between Goldstein and Blockus and that

they did not at any time hear Goldstein make a

statement that the property Wa. his (R. 262-263),

although, in an affidavit ‘submitted by respondents,

Levine subsequently said he did not hear all of the.

conversation betveen Goldstein and Blockus e.

228-229).

which he a a stranger” (AR. 21D), and, as to the $7,500

escrow. referred to later, that (AR, 222)— s

“If there is any method known to the law, by? Sahih ‘ohe

man’s money can be held by another under such pretext, we »

do not know about it. On its face it sounds unreasonable: —

anc unbelievable. “The record shows: that Johnson owes —

money to the government ‘and, according to Goldstein, he

has $7500 which belongs to Johnson jn his posséssion with -

- the governme rnt’s « kriowledge and the government «does

| > |

nothing aboyt it.’

Rye record shows that Johnson's brother, ine addition , to’,

Goldstein, has stated that there is a ‘tax lien, on Johnson's

property and funds.. -(R. 249- 950.) We are advised by the

Beree of Internal Revenue that a nugyber af individuals

‘gud companies were served with liens on Johnson's property

atid funds, that Goldstein was served 6m April 3, 1940, and’ -

that the Government has not attempted to make’ collection,

it being customary in cases pf this kind, whiere there. has

been a criminal trial and where the matter is still pending

before the .Tax Court; to postpone collection until such time

#s a final decision has been. reached as to the incon ie tax |

liability. ee ae : ;

bad

“RR

34 .

In other words, this evidence regarding the Al-

~ bany Park Bank Building merely reflects: that

Goldstein is continuing to act’ as-agent for the

building and that transactions with respect to it

-are being carried on in the name of the. record

title holder, in the sanie manner that all of John-

son’s gambling, establishments ‘were operated un-

der the ostenkible proprietor ship of others: This

evidence does not reflect who the true owner is. ;

The only evidence ‘respondents offer on -that point

is contained in.the affidavit of Miss Sommer r, a for-

_mer stenographer in Goldstem 's office, who states

‘that she typed ° income and disbursement state-

‘ments of the vault company located in the building:

ahd mailed them to. Skidmore th. 163-166) —the

‘inference being t at Skidmore owns all or a part

of the building. Miss Sommer’s statements are

refuted by Goldstein’s submission of typed copies .

ofthe income and disbursements statemerits shown

to have been prepared by a Miss Koop, am em-

ployee at the vault company. (R. 254-259.) Even

if it were to be* concluded from Miss Sommer’s

testimony’ that. § Skidmore owns part of the build-

ing, that cone luision would not be inconsistent with -

Goldstein’s trial testimony that he purchased the

building at’ Johnson's request with money fur-

nished him by Johnson. and subseque tly delivered

a quitelaim deed to Johnson."

*% The Circuit Ceurt of Appeals considered it “illuminat-

ing” that no mention is made of the quitelaim deed to John: -

. son,in the affidavit of Theodore Goldstein, the son, filed by.

"35 ; ~~ at a

- -Kscrows:—Respondents’. evidence in respect of, -

s ’ A ‘ ,

the. two escrow deposits on imconsummated sales:

tends to prove only, that, the $10,000 deposit ‘be-

longs to either Johnson, Skidmore or Goldstein.

' By affidavit, Goldstein admits that when the es-

row agreements were not fulfilled by the. vendors

he served notice cancelling them, ree ceiving tA,

$7, 500 escrow deposit, which he did not return to

Johnson because of the Government.’seen,-but not

receiving the $10,000 escrow deposit. (RX. 260-

261.) Guild (tristee for thé property involved.

under the $10,000: escrow agreement, R. 138-139)

and Holleran (attorney: for the beneficiaries and -

trustee, R. 128-129) -both corroborate Goldstein

in his. statement. that the vendors had not fulfilled —

the terms of the $10,000: escrow, agreement CR.

_ 130-152; ef. R. 141). . Holler ‘an and Guild state,

however, that in their discussions with Goldstein:

respecting the withdrawal of this $10,000 escrow

deposit Golstein said the money was his. (R. 133,

141, 214.) Hetiricksen, on the other nage Petey

that Skidmore told him the money was his. - 95.)

More significe ant than this ine onsistent ase i

the Government on the amended motion, and concluded that:

the Governmeyt | has “abandoned its effort to defend this por-'

tion of William Goldstein’s testimony.” .(AR. 218.) This

aflidavit related to Theodore Goldstein's tax returns and the ~

circumstances of their filing. It was filed for the purpose

of meeting the contention of respondents based upon these

returns. We did not conceive of the proceedings on. the

amended ‘motion as amounting to a retrial of the case by

affidavit. — - yes sree ie giastic >

is: respondents” own disclosure that the’ $10, O00

eCSCLOW agreement vesulted from. the institution

and dismissal: of a-trespass suit relative to prop-.

erty loeated hetween Bon. Air and the Curran

‘arm (R.-133. . 141), prope rties ip whieh Jotinson |

admits he has a one-half ifterest.

Whatever significance the testimony of Holle ‘an

Guild’ and Henricksen ‘miglit otherwise have is |

‘dissipated In-an. atiidavit filed by the Gove rhmient,

Sullivan, attorney for Guild in the tres} ‘ass suit,.

states that’ he suggested “to Goldstein that there

was no Hen-on the $10,000 estrow and that part of

it could be applied in settlement of ‘the Bon Air

trespass suit and that Goldstein refused gto with- |

draw and: pay ever the money out of the escrow:

fmd unless Sullivan -obtametl a letter or some

form of written authority from Johnson, stating.

that: he would follow Johnson's instructions in

making disposition of the fund. CR. 250.)

= - . Hearsaypand cumulative ceodenee

All of the rest of the evidenee submitted by re

“spondents on their motions is: either learsay evi-

dence or evidente which is substantially identical

to that. submitted at the trial by respondents.

The he arsay evidence, consisting of alleged state-

ments. by Skidmore would of course be “ifad-

Seb Re 81. 83. SH. 88-90; 935 95, 96-97, 97-99, 109-4126.

‘ “Some of this hearsay evidence ‘is divected toward a show-

ing that Goldstein's trial testimony as to Bon. Air was

false.’ Henricksen, the ‘caretaker’ at, Bon Air AiR. 83-84) °

who testified as a state Witness in the Roger "Touhy and

missible on a new trial. ~The. otherwise, cumula-

tive evidence héars only on the question whether

Johnson. was the sole Owner or only. had Mne-half

interest in Bon Air (ineluding the Curran Farm) °

and The Dells. - The evidence as to The Dells is

repetitious of that produced at the trial '' and the

most important part of it-submitted’ through -he

affidavits of Hare and Herman, persons. who testi-

fied at the trial for the defense. (R.474.)" The.

evidence as to Bon. Air reflects. acts of Ownership

of Bon Air by Skidmore,”. just as did a great deal

Hugh Banghart trials and described his own active partici-

. pation in the kidnapping of John. Factor (R. 277), states

that Skidmore told him that he bought Bot. Air, that

Johnson would have a one-half interest in-it but Jolson

. did not. know about it vet, and that he bought the Curran.

Farm-and did: rot intend to let Johnson have an interest ’

———ttrat- TR. 84.93.) Nadherny, who testified at the. trial,

sfutes that he heard Skidmore say that he bk aught the

pag ger (one of the Bon-Air properties): as a surprise

oift Johnson. (R. 98-99.) These statements réflect

fale oie unretiability as proof. Fox instance, Henricksen

states that Skidmore said he did not intend to let Johnson

have an interest in the’Curran Farm, whereas Johnson ‘ias

> admitted that he owns a one-half interest in it. . Nor coutd

the Green House have been a surprise gift to Johnson, for

Johnson’ has admitted that he paid one-half of the cost

vf all of the Bon Air properties, ae the Green

“House.

“.. NT-1187 231- 232° with Nos Lands 1042 Term,

+R. 926-927.

Ste also, R. 95, 175.‘177-179, 189, aoe

''R. 81-82, 85-86, 87-88, 89, 90, 91-92, 93-94. 97, 99, 102,

103-104, 104-105, 206, 107-108, 108-109, 112- 13, L1l4, 119,

130-122, 124-125, “125-126. 166-167, 169-170, 173, 174-175,

176- 177, — 191-192, 192-193,

of respondents’ -trial evidence. “Some .of these

¢-

affiiants testified at the trial and others were sub-

poq@iaed- but not called to testify. ¢R. 474-475.)

Peacock, who also w as subpoenaed by respondents

(R. 342-343) but not called: to testify, and. Miss

- Marsh reveal that titles to the Bon Air properties

and -Curran Farm were transferred to Johnson

and that deeds signed by Johnson and conveying a

one-half. interest to-Skidmore were prepared (R.

163-164, 188). This evidence, on which the Cirenit

Court of -Appeals has placed so much reliance

(AR 224-225), was before the jury. ‘through re-

sponde mt Johnson's te stimony (Nos; 4 and 5, 1942

Term, 3 R. 964) and night have been corroborated

at thé trial by Peacock, since he’ was under sub-

poena‘ by respondents. : Aside from. the fact that.

the preparation of deeds conveying a one-half in-

te rest hn Bon Air to Skidmore is merely cumula- |

‘e evidence ona trial issue, the fact that full title

Was first. taainsferred to Johnson tends to support

Goldstein's testimony that Johnsop gave him the

money to purchase Bon Air. os

On the issue of the falsity of Goldstein's trial

testimony, the trial’ court was ‘also required to

consider Goldstein's. de nials that he.made the

wie riminating statements attributed to him by re-

spondents’ affiants, ‘as well as his explanations and

‘reiteration that it was Johnson who gave him

the money to make the escrow deposits and to.

39 e

purchase t these properties." And? as we have al-

| en shown, the trial proc eodings alone reflected

substantial. support for the conclusion, that Gold-

‘stein’s testimony Was true in its entirety.

ACTION OF TRIAL COURT ON RESP@NDENTS’? AMENDED

, MOTION -

After refreshing his recollection ‘of what trans-

pired at the trial both times he pagsed on re-

spondents’ motion: for a new trial (R. 466-474,

515-516; AR. 168-169) and exhaustively review:

ing the motion evidence (R. 474-514; AR. -151-

167), Judge Barnes, the trial judge, concluded

(AR. 167-168) : :

Having considered if detail each separate

item of allegedly newly discovered evidence,

-inchiding not ently that now proposed by ‘the

~movants to bé presented to a jury, but also

that by their motion filed in 1943 proposed.

* by the movants to a presented to a jury,

the’ court finds and ‘holds that each and

every such item is excluded from the classi-.

_ fication . ‘newly discovered evidence war-

ranting anew trial’’ by at least one of the

elements of the rule of law applying i in such —

_eases and above stated, All but a few items

> . are merely cumulative of other like items

ont. presented at the tual. No adequate reasag

has: been presented for the delay of more

* See R, 243, 248-249, 251-252; 252-253, 254-259, 260, 260-

“61, 263, 265,

than four years in the presenting of these

nierely cumulative items. All items Which

are not merely cumulative, are merely im-'

-peaching. The merely impeaching items

. are found in the pfoposed testimony of de-

fendant: Johnsoy, John E: Johnson,: a’

brother of defendant Johnson, Hess, attor-

ney at the trial for Johnsons co-defendants,

Fowler, a discharged employee of Goldstein,

Green, a disbarred lawyer, and Sampson,

who makes an affidavit, filed) December 4,:

1944. All of the defendants have known,

ov are Chargéd with-knowledge of, all im-

peaching ‘items which they seek to present

through the testimony of Johnson, John FE.

Johnson, and Hess since the spring of

1941,—two and one-half vears before they

were called’ to the. attention of this eourt.

Johnson has known of .the matters pre-

posed to be related by Fowler since at least

as early as Se ‘ptember, 1942, more than one

ear before it was presented. No ade quate

reasons. have been presented “for these de-

Jays. The movants have not. been diligent

as to these items. Green's impeaching evi-

dence is denied by Goldstein (as ‘are all the

other items) and, because of its imherent im-

probability and its Source, is not by tlie

court considered worthy of belief. ~ Samp-

son's alleged impeaching evidence is not in

fact impeaching and furthermore is denied

by Goldstein. The court-does not. believe

that Goldstein’ recanted, does, not believe

‘that -he perjured himself on the trial and,

on the contrary, believes that he was quite

circumspect.’ The’ facts are that Goldstein

on the trial told-(with one exception) only

-—what the various @¢sérow. papers and records.

eonipeHed him to tell... That one, exeeption.

“was the source of the currency that, he de-

posited in the-Various escrows. His testi-

mony as tothe source of the currenéy is cor-

roborated. by the facts and circumstances in

, evidence. , Johnson is the one person r=.

~ ferred to. in the evidence who- habitually

used currency in large amounts (and not

hank checks) and habitually kept very large

sums of currency oh hand. Goldstein’s pur-

chase for Johnson of Sunny Acres Farms is

a corroborating circumstance, Finally, -the

court: finds: and holds’ that the allegedly,

newly discovered evidence is not such or of:

such nature ‘as ‘on a new, trial would prob-

ably produce an acguittal. The cert con-

cludes that the amended motion for.a new

trial on the ground of newly discovered

evidence shotild be denied, |

REASONS FOR GRANTING THE WRIT

1. The decision below, it. is submitted, falls for

review by this Court no less urgently than did the

decision of the court below on appeal from the

respondents’ conviction. See United. States _

Johnson, 319 U. S..503. The -majority of the

Circuit Court of Appeals has.ordered a new trial

four and oa falfVears aftef conviction, upon

a y - o are -

proceedings heen When this Court affirmed’ the

convictions, ‘and after. those proceedings lad

resulted ‘in.a denial of-a‘new trial by the Dis-

trict Court, unanimous affirmance of that denial.

by the Cirenit Court of Appeais, and a second de .

nial of a new trial by the District Court. A new

trial has -now een ordered by two. of the four

Judges who have passed on the niatter, despite the

fact that virtually all the material considered by:

the court below was before. it when it previously

affirmed the denial of a new trial, and despite the.

Carlier statement of the court below, ‘abtindantly

-justified, that the trial court had considered the

‘ motion for new trial “with painstaking effort aud

ncticulous: care.’ . R. 583.) — The- decision is

_ based on so seriotis a departtire from the decepted |

course of review of the gianting or denial of tae-

tions for ew trial, and in the process: discloses

so great A-misapprehension of -the significance of

the miiterial presented, thdt it ¢asts an unwar--

ranted reflection upon the conduct of the case. and

opens the way to indefinite prolongation of eyim-

inal proceedings. ‘To leave the case in its present

‘State Without. submitting it to the supervisory ‘

power of: this Court would be a disservice to the:

Cause of. admir: ‘stration of the criminal law.

The, action of the majority below rests primarily

upon: its cone lusion that the testimony of the Gov-

ernment’s Witness Golstei ‘th concerning the <Al-

bany Park Bank Building was false. “The nature

of that testimony and its ‘setting in the-ease as a

“whole has been indicated in the Statement ( supra,

pp. 10-20). Goldstenr testifie , supplementing and

explaining documentary evidelice of escrow agree-

“7

ments, that he purchased certain properties, in-

chiding the Albany Park Bank Building, With cur-

reney regeived {romi Johnson, that tithe was taken

in the name of a Hominee, and that quitelaim: deeds

were subse quentl) , eZee auted to Johnson, Fhe cor

roborating ev idence has also been indicate dk (supra,

yp. QOL); nei newly discovered motivation for

falsity has been suggested, Roce

All the proof offe red in support of the ; ate need :

motion for new trial concermed Goldstein's testi-,

mony relative te the Albay Park Bank Building,

AS the ‘court - below noted (AR, 209). In over-:

Hirning the decision of the Distriet Court and its

own prior dee ision on appeal respecting the truth-

fulness of Goldstein's testimony, the court below

hia before it, as did the District Court i passing

on the seecnd motion for mew trial, tax returns

‘executed by Goldstein’s.son tn the stuumer of 1944,

which were interjected in the case on the eve jot

action by this Court. upon respondents” petition:

for: certiorari atid the Government's Opposing >

— bret onan attempted review of the earlier denial

oof anew triak See Nos. 153 nd 154, 1944 Term.

These returns, taken together with ghe cireum- -

<Tances surrounding their preparation, show,—

Whit was testified to by Goldstein at the trial and

as never-ip-dispute,—that the record titté.to the

bins Park Bank Building was in the name of

dis son. The returns were filed at the insistence “of

revenue agents that the -reeord holder of the title

: 44°

was hound to return the income from the property,

and with a written explanation by Gotdstein that.

record title was in his son, after refusihy to sign

a statement acknowledging actual ownership.” See

supra, p. 30. From this episode the “majorite”

below drew the. astonishing conalusion, that Gold-

stein has now “decided to repudiate the conten-

tion that the property was Johnsan’s and claim

it-for himself’ (AR, 219.3. In: eoneinding that

Goldstein or his <oh was in truth the beneficial

owner of the building, the eourt. -below not only :

“gave an altogether perverse significance to the tax

returns, but it ignored tlie fact that the pattern

of tithe was the same in this instance as it was with.

respect io ‘other properties in which respondent.

Johnson himselY admitted ownership, record. title »

having been taken’ in the “name. of Goldstem’s

nominee, Goldstein acted asx agent from the time

this buildine was purchased and: would naturally

continue so to aet at atime when Johrisen was net

likely. to take any action.te reflect. his ownership.

Indeed, the building in question’ was described by

Johnson's couse! ith lis opening statenjent at the

trial as having been -bought by ohnsen, cipher

himself or as e partner: with someqne else, the

rents: being colleeted and applied to the mainte-

nance of the building by an agent. See supra,.

Dee The evidence diselosed that the agent

was Goldstem,. These statenents of Johnson's coun-

sél, though later argued to be eproneotis, were made,

in Johnson's presence and never corrected hiring

45 ;

‘the trial, Nor Was Goldsteiy. | himself CYOSS-

~ pxamitied with 1 respect to the Albany Park Bank

Building transaction,’ though he was so cross-

~ examined as to certain otlier properties and though

le remained. under subpoena by the defendants for

thé duration of the trial. TR. 488-489.) The ef-

fort, now successful, to attribute owe rship of the

Milding to Goldstein or his son, was aptly char-

acterized by the. trial court (AR..166) : j

wo the light of that admission. made on the.

trial, it approaches. the absurd and faritastic |

that courts should now, more than four

years: later, be: considering motions for a

new trial on the ground of newly discovered —

evidence as to the ownership, of the build-

Ing whose ownership. was ‘admitted. |

it was. the-filing of tax returns’ on this property,

“in the. cireufmstances described, that produced a

transformatiely of the case im the court below. |

~ When ve pass from the tax returns and turn to

the evide nee which hi aud been before both courts on

the earlier motion, we find similarly artificial in

ferences now being drawn. If is net practicable

heré to examine in detail the evidence. which we

have attempted to analyze thoroughly in‘the State:

“ment. CC ertain iems which were regarded by the

majority as of major significance mav, however;

he noted, ee

‘What the court below. described as. “the sess

“emarkable disclosure In this record’? (AR. 224

vas. contained in affidavits of Miss Marsh sie

46)

P acock, asserting -e it titles to the Bon Air prop-

erties and Curran Farm were’ conveyed by Gold-

Stein's nominees to Johnson, and that Johnson sub-

sequently éxecuted: ‘@uitelaim ileeds of a one-half

‘interest to Skidmore, which were drawn and ac

knowledged by affiants at Gols te in’s ve quest. Aside

from the-ciretimstance that these attic: Wits were be-

fore the courts below on the original motion, the

facts alleged were before the jury through Johnson's

testimony (Nos. "4. and: 5,.1944 Term, 3. R. 963-

964), and Peacock was under “subpoena by re-

spondents at thie’ trial but Wals not called. These

affidavits, far fromédemonstratiny that Goldstein

testified falsely, actually ‘support his testimony.

The fact that Johnson receiveds full title to Bon

_Aizv atid Curran /Farm from Goldstein’s nominees

corroborates Goldstei in’s trial testimony that quit:

claim deeds we re delivered ty Johnson, and also

‘tends to prove the truth: of Goldstein’ s testimony

that Johnson gave. him the money’ to purchase the

prope ‘tties. The execution by Johnson of quit-

claim deeds to Skidmore of a one- chalf interest in”

the properties is cumulative evide ‘nee on the issue

-Whether Jolinson was the sole ownler of Bon Air,

“gur issue whieh was before the jury on, extensive

and contlicting evidence, see supra, pp. 14-17, and as

te. which — Was not cross-examined | or

Peacock called.’. a ec AES Hg

, A. “éixcumstancé alone, une xplained as it 1s,

“which «omes close to establishing the falsity of

Re aie”

od -

47 -.

“Goldstein's trial testimony”? i n ‘the view of the

majority. below (AR 220)/)) was the leasing of

. the ‘Albany Park Bank Building by ‘Goldstei in, as_

_asserted in an affidavit of Sampson, . ti a state-

ment sharply critical o: the trial court *s, conclu. |

sion that this affidavit is not inconsistent, with

Goldstein's trial testimony, the court below said:

_ We-suppose, according to this reasoning, if Gold-

stein should lease: this property ffom now cuntil,

eternity and retain the-rents as long’ as he lives,

‘it would. not ,be inconsistent with his’ testimony

that he purchased this ‘property for and convey ed

‘the title toJohnson.”’ (Jbid.) Again the court has

overlooked the pattern of arrangemeitts under

which Goldstein’s_nominee took record title to

properties in which Jofinsoh, admitted having an

interest, and the likelihood that Goldstein would |

continue to act as agent during a period when

Johnson . would hardly disclose ‘his. ownership.

Similarly the edurt below, dealing with the sie

_denge as to escrow de ‘posits (supra, pp. 35-36),

garded it as ‘‘unbelievable’’ that ‘one man’s

money ean be held by another” in. pursuance of a

tax lien unenforced by the Government LAR.-

222). The evidence Was not only believ: i but.

wis in harmony: with the faets’ regarding the

Government ‘slien. | (See supra, note 11, pp. 32-33.)

The affidavits alleging recantation by Goldstein

have been discussed supra, pp. 25-28, Their acce Bt =

ance by the court below en the second Appeal, ¢

against the trial court, *s. reasoned disbelie f awd

acceptance of. Goldstei in's aftidavits, is. dithe ult to

explain in terms of the function of thie Peviewley

court. The treatment: of the Hess caffidiavit is

illustrative. This affidavit, together with those of

Johnson -and bis brother, -recrted an titerview

With Goldstein tn Hess’s.-offige while Hess was

preparing a brief on appeal_-from the original

conviction. The affidavit, said ‘te disclose recan-

tation by. Goldstein, Was Hot brought to the

attention of? any ‘court at that time.” The court

below stated that it did not'think the affidavit of

Hess is -capable of the construction placed. on it

by the District Court. namely, ‘that it ‘fcould as”

well be taken to mean that he [Goldstein ] «was

sorry he had testified at all, as it could be taken to

4 f ° . . a ‘

-mean that he was sorry he had lied’. (AR. 213.)

The fact is that the trial court was not Inventing an

unbiguity in Hess’s affidavit, but was repeating: .

Hess's own preted ‘Tless himself signed a

me imoranduih (R. 247) attirming that he. would not

sav ** Whether Goldstein was endeavor Ing. to EXE Use’

himself to. Johnson for having testified ag tinst

Johuson, or was conceding falsity’ > (R. 246; see

p. 26°8upra). When the court. below concluded

‘that ‘fany kind of logic of reason of which we are

aware requires the acceptance of. Hess’s version

as true anid that of Goldstei ‘inas false’ CAR, 213), it

Was net ime ‘rely reversing the trial gourt on an issue

_ of credibility without adequate | foundation, but it

Was doing sti upon’ i patent misappreliensign. of

what tt Hess’s ve rion” was,’ ; eS,

The majority below declined to apply the

éstablished rule that motions for a new trial on

the ground of newly discoverel evidence will hot

be? granted, where the newly discovered evidence

Is merely of an impeaghing er cumulative’ char-

acter, unless it would probably result in a yerdict

of acquittal on a new trial.” The court instead

_ apphed the test of whether evidence subsequently

shown: to have been perjured may have affected

the outcome of the trial -alre: udy had. This: rule

lias properly fourid application in cases of-recanta-

‘tion by a witness. -All the federal eases cited by

ie majority in support of ifs position were ads

awigrs to that situation. In. Pettine v. Ferritory ,

New Mexico, 201 Fed. 489 (C, C. A, 8),/an

inet Witness recanted: and asserted that he

had been intoxic ted. at the time of pe trial -testi-

mony. In Martin y. U nited States, 17-F. 2d 973.

. C. A: 5), the court referred m ee to. the

oA where a witness admits ‘that he

testified falsely or that he was mistaken. dn Lar-

bite Vv. nited States, 24 EF. 2d 82, a prior decision

the court. below, the court denied remand for

the purpose of passing on a motion for new trial,

‘See eg. We! 8S i United Stotes. 122 F. 2d 675. GYL

(Ce C.-M. 5): Long }. United States: 139 F. 2d 652, 654

ACLCIN. 10) 9 Johason v. United States, 32 F: 2d 127. 130

(C. C. ALS): Botrd vy. United States, 279 Fed. 509, diz

(C. CA. 6). | | SHAN

but stated the requisites for a new trial in. the

case of recantation, as in fact that ease-was. ‘Thus

‘the | quotation give n by the majority . below from

that case must be read is: applicable. to recanta-

tion ; the standard applicable where the court is °

“ne asonably. well satisfied that the testimony given’

by a mate rial Witness is false”’ (AR, 228) has refer-

ence toca vecantation followed: by a repudiation

, thereof, — the situation. presented in‘the Larrison

ase itself. es ee ie

The court extended thé so-called rule of the Lar-—

. rison ease to a ‘ease where ‘there has “been no re-

cantation, but on the contrary vigorous reasst ‘tion

of the witness's : trial testimony: We should have

no “quarrel wih an extension of that rule to a cas

where thére has been a clear and convincing show-

ing of perjury, found by the trial court, But the

_majority below, in erder to exte nd the rule. regard-

» IMeenew trisls for impez whing or cumulative evi-

dence, ‘was obliged to’ make a preliminary de-

parture from recognized practice in imdertaking

tu review dé novo: the affidavits submitted to the

ee and on that. basis reversing the trial

— court’s findings. This’ isga departure. both’ from

Ty State v. Mounkes, 91 Kans. 653, 138 Pac. 410, the fina:

case cited by the majority below, testimony givén by a govern-

ment witness a few minutes before the close of the case was

later shown by conclusive evidlence to be false: the fact drawn

_—rrissue was whether a schoo] vard contained a. flower bed

~ * surrounded by stones. The evidence brought for ward after

the triat- showing’ the existence of Rhat physical fact, by

fhotogr; aphs ang other Wise, Wits heyond es ana

a eee ee

the spbdtiabica precede nts and from the purport:

of Rule 2 (3) of the Criminal “Appeals Rules,

Which contemplates / that ‘the. trial court, and not

the Cireuit Court of Appeals, shall be vested with

responsibility for determinations of fact on mo- —

tions for new trial. Indeed, thé .majortty -below

regarded .it as‘improper for the trial court to-

avail itself of its impressions: of-the challenged

witness and of the defendant, who had. both testi-

fied at the trial and who both made affidav its. The

majority believed that if such impressions were to

be availed of,. the trial court ‘should: have called

for oral testimony by ‘the. other affiants, though no

: request for such testimony was made, and even in

reversing there is no remand for that purpose. but

an outright grant of a new trial. -

_ By virtue of these “leparturcs, the court below

did. not consider what effect the impeaching evi-

-denee would have on‘a new trial. It seems plain

cnough Ahat the District Court was right. in, con-

cluding that the result would probably < not be

altered im the event of anew trial. € ross-examina-

tion of Hess (if he were to testify) would re veal,

as the presént: record does, that he could not say

that Goldstein had admitted: that he tesified

falsely. Since Hess wis present during, the ‘en-

tire discussion regarding/ which respondent .John-

gon and his brother might testify, a jury would .

hardly believe Johnson and- his brother if they

‘were to state that Goldstein did admit the falsity

_Jof-his testimony during this discussion; In the

face of this, on a new trial ‘yespondents. plainly

would be forced to employ the tactic they. adopted

in. the trial already had—which was for Johnsen

to make denials and staté that hé heard Goldstein

“testify te-a lot of other things that are not true.”

(Nos. 4 and 5, 1942 Perm, 3 R. 977.) Fowler ane

Green could be placed on the stand on.a new trial,

but their testimony, even if believed despite, the

circumstances shown by the present record im-

pedching their credibility, would add little to what

Was before the jury on the first trial when a Gov-

ernment witness twice testified (id., 2 R. 73, 87)

that the defendant Wait (who was acquitted) had |

stated that part of Goldstein's testimony was

false. Notie of the hearsay evidence submitted.

~ by respondents on their motion would. be ad-

miuissible in evidence, lndeed, the jury could be-

lieve that Goldsteny!s testimony” was «partially. |

false, and still return verdicts of guilt amply sup-

ported by the evidence. As this Court recognized

(319 U.S. at 516), the “ownership of gambling

houses”’ theory of proof was the predominant part

of the Government's case, established by a *Svolu-

minous body of lurid and tedious testimony,” and:

independently supports the verdicts. In addition,

-the proof on that theory would still be corrobo-

rated by the ‘texpenditure”’ theory ‘of proof even |

if Goldstein's testimony were dishelieved entirely

-and even if Johnson's testimony regarding’ Ins

*2 &

expendiiures on these properties were: accepted.

in preferénce to the Government's other evidence.

3. We are sensible of the obligation of the Gév

ernment, no less than of the courts, to prevent a

aniscarriage of justice in a-eriminal case, par-

ticularly where perjury of a Withess’ is charged.

For that reason, the ‘Government undertook ‘an

luvestigation in thre present case (supra, p. 9).

We recognize also that motions for a new trial,

and ig Ce of appellate courts to review

orders hereon, aire iuiporti Nit Jnstruments nm pre-

ve nting’ in justic e. But we are compe Hed to recog-

nize also that justice “may miscarry J. 1. different

Ways, dud that motions for a new tri: é eu appel-

late Feview thereof mi WW the tmselves contribute to a

‘rustration of justice. At Is, doubtless upon a bal-

ance of: these considerations th: it the pragtice has

become established of re posing in the rial pourt

judic jal discretion in connection with the gy anting

or demal of. new trials, and: of limiting appellate

Preview, Where ne bias isch serged to the trial court,

to the question whether “4H court ts shown to have :

abused_th: it discretion. This practice was. prop-

erly followed on the earlier appeal in the présent

ease, Departure from it on the second appeaVhas

seeved to cemonstrate, it is submitted, the sound-

“Less of the practice itself’ ere

Review by this C ourt is sought to cor rect such a:

de parture, ta. exercising its supervisory , power,

this Court will not be requir ‘d to, assume an unduc

~ “ . a : J

‘@

burden. The opinions of Juilge Bar hes and Judge.

‘Minton, point the way.

CONCLUSIQN

For ‘the rei ISULIS stated ‘it ix: respectfully” sub-

mitted that this petition for Writs ot certioran

| von B. pax,”

Acting Solicitor General.

should be granted, -

poet 1945. ° ae pee a

ot pe

’

6. ;

4 °

= : ae

+ _ a 4 5

: / °

Sea 5 a “MS GOVERNMENT Paimiins oveice, 1968

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.