# Petition for Writ of Certiorari — United States v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0028%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 327 U.S. 106 ## 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 . . ° ‘ ov ° . . * * oi” oi? ow ou" oi ° * 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 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. : 19 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- o i "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. ae . e \ ¢ 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.. * a: ay. 23 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 @e : 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 S 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 | | 4 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 2 _ 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.) Fs 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 30 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 td 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. * / ° ay 32 "S 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’ | 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 . Po 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 > a ° 86 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 4 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 em . dl 37 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, o = ' 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, ae 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 4 iS 41 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- 42 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 — 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- - (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 40 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 50 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 a ‘were to state that Goldstein did admit the falsity 52 Sm _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 ‘@ 54 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. ; i 8 4 ° a Pa = : ae + _ a 4 5 : / ° Sea 5 a “MS GOVERNMENT Paimiins oveice, 1968 fe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0028%3A2. Public record. Not legal advice.