Petition for Writ of Certiorari — Mascuch v. United States

FILiwD

MAY 31 1940

fieRC eS ECRTRE-CROPLE

CLERK

Supreme Court of the United States

June Term, 1940

Josera J. Mascucn, " a

Petitioner,

agatmst vo. fae 1 ] \

Unirep States oF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SECOND CIRCUIT AND

BRIEF IN SUPPORT THEREOF.

Harry W. Cotmery,

Office & P. O. Address,

Topeka, Kansas,

Frank L. Mier,

Office & P. O. Address,

70 Pine Street,

Borough of Manhattan,

City of New York,

Counsel for Petitioner.

Notice of Filing.

Supreme Court of the United States

June Term, 1940

Josepn J. Mascucs,

Petitioner,

against Wee ns

Unrrep States or AMErica,

Respondent.

Sir:

PLEASE TAKE NOTICE that in the above entitled cause a

petition for writ of certiorari to the United States Circuit

Court of Appeals for the Second Cireuit, and brief in sup-

port thereof, a true copy of which is annexed, together with

the requisite copies of the printed record, were filed in the

office of the Clerk of the Supreme Court of the United States

on the day of May 1940, and are now pending before

the Court.

New York, N. Y., May 27th, 1940.

Yours, ete.,

Harry W. CoLmery,

Topeka, Kansas,

Frank L. MILier,

70 Pine Street,

New York, N. Y.,

To: Counsel for Petitioner.

Hon. Francis Brwwpiez,

Solicitor General,

Washington, D. C.

Service of a copy of the foregoing notice and of the

within petition for writ of certiorari and supporting brief,

as well as of a copy of the printed record (including the pro-

ceedings in the United States Circuit Court of Appeals for

the Second Circuit), is hereby admitted this day of

May, 1940.

Counsel for Respondent.

(a)

ee ea aes 7

SUBJECT INDEX

PAGE

Petition for writ of certiorari 1

Statement of the matter involved 1

Questions involved 5

Assignment of errors... 6

Statute involved 6

Reasons for granting the writ 7

Brief in support of petition Saye |

Opinion below 11

Jurisdiction 11

Statement of the case and specification of errors... 11

ARGUMENT 11

Pornt I. Petitioner was entitled to the charge as

requested, relating to the probative effect of

evidence of good character 11

Pornt II. Grievous and prejudicial error was

committed by the Trial Court in its refusal

to charge as requested by petitioner on the

question of absence of willful intent and cor-

rupt motive 13

Pornt III. The rejection of Defendant’s Exhibit

A for Identification deprived the defendant

of the right to present to the jury competent

and relevant evidence bearing upon his de-

fense 15

Pornt IV. Petitioner was entitled to a mistrial

as a result of the conduct of juror No. 4, which

the Trial Court itself labelled ‘‘improper’’_._ 17

a

PAGE

Pornt V. It was error for the Cireuit Court

below to refuse to treat the motions for dis-

missal and direction as motions for with-

drawal, since upon this record the evidence

was insufficient to support at least one assign-

ment of perjury in each count of the indict-

ment 19 |

Pornt VI. The cumulative effect of the improper

and prejudicial cross examination of charac-

ter witnesses, cross examination of the wit-

ness Palmer and admission of circumstantial

evidence and testimony by inference of peti-

tioner’s subsequent acts and declarations,

imputing to petitioner the commission of

other unrelated crimes, over objection and

exception, was to deprive petitioner of his

constitutional right to a fair trial 22

Conclusion 23

Table of Cases Cited.

Claassen v. U.S., 142 U. S. 140, 147 21

Commonwealth v. Brady, 5 Gray (Mass.) 78_.._-___ 21

Crawford v. U. S., 212 U.S. 183 8, 22

Edgington v. United States, 164 U. S. 361_._._._____7, 13

Egan v. U.S., D. C., 287 Fed. 958 7

Erie Railroad Co. v. Tompkins, 304 U.S. 64 8

Gart v. U. S., 294 Fed. 66 9

Gordon v. U. 8., 254 Fed. 53 9

Grace v. U.S. (5th Cirenit) 4 Fed. (2d) 658 7

Joyce v. U.S. (9th Circuit) 294 Fed. 665 7

Kaufman v. U.S. (3rd Cireuit) 282 Fed. 776....-_-=E=—s—s 7

Kreiner v. U. 8. (2nd Circuit) 11 Fed. (2d) 722...-4-=S=s—«7

Manning v. U. S., 287 Fed. 800 9

Matter of Case, 214 N. Y. 199, 203 19

iii

People v. D’Anna, 243 A. D. 259 7

People v. Criscuoli, 164 A. D. 119 20

People v. Clarke, 252 A. D. 122 19

Peo. v. Epstein, 245 N. Y. 234 8

People v. Gilbert, 199 N. Y. 10 7

People v. Gillette, 126 A. D. 665 20

People v. Henry, 196 A. D. 177 = 19

People v. Marcus, 236 A. D. 93 7

People v. Millard, 247 A. D. 253 7

People v. Root, 94 A. D. 84 19

People v. Ulman, 258 A. D. 262, 263 7,138

People v. Woolverton, 8 Blackf. 452 21

Pittman v. U.S., 42 Fed. (2d) 793 9

Rex v. Crespigny, 1 Esp. 280 21

Roth v. U. S. (6th Circuit) 294 Fed. 475 7

Shreve v. U. S., 193 Fed. (2d) 796, 803 8, 16

Sloan v. U.S., 31 Fed. (2d) 902 9

Snitkin v. U.S. (7th Circuit) 265 Fed. 489 7

State v. Henderson, 90 Ind. 406 21

Sunderland v. U. S., 19 Fed. (2d) 202, 212 9,18

U.S. v. Dilliard, 101 Fed. (2d) 829, 833 21

U.S. v. Norris, 300 U. S. 564, 576 8, 16

U.S. v. Otto, 54 Fed. (2d) 277 20

U.S. v. Slutzky, 79 Fed. (2d) 504 20

Warren v. U.S. (8th Circuit) 250 Fed. 89 7

Weil v. U. S., 2 Fed. (2d) 145 9

Wood v. People, 59 N. Y. 117 19

Statutes Cited.

Criminal Code

18 U.S. C., Sec. 231 1, 2,6

28 U.S. C., Sec. 391 8

Judicial Code

Section 269 8

Sec. 240 (a) 11

16 C. J. 571 17

Supreme Court of the United States

June Term, 1940

JosepH J. Mascucn,

Petitioner,

against aia eres

Untrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SECOND CIRCUIT AND

BRIEF IN SUPPORT THEREOF.

To the Honorable Chief Justice of the Supreme Court

of the United States and Associate Justices thereof:

Your petitioner prays that a Writ of Certiorari issue

to review the judgment of the United States Circuit Court

of Appeals for the Second Circuit, which decision was ren-

dered on the 6th day of May, 1940, affirming the judgment

of conviction of the United States District Court for the

Southern District of New York at the Borough of Man-

hattan, City and State of New York, convicting the peti-

tioner of perjury, in violation of Title 18, United States

Code, Section 231.

Statement of the Matter Involved.

Petitioner, President of Breeze Corporations, Inc., a

company engaged since 1926 in the manufacture and dis-

tribution of aeroplane parts and equipment, riot guns, tear

Chane G8 BS, MOT gi OT EITC RG Se

2

gas and other related products, a good portion of which it

sells to the United States Government Army and Navy Air

Corp. (R. 579), with an annual payroil amounting to ap-

proximately $1,000,000 (R. 583), having between 1,500 and

1,700 stockholders (R. 321) and whose stock is listed upon

the New York Curb Exchange, was heretofore and on the

14th day of June, 1939 indicted on two counts, charged with

having committed perjury in violation of Section 125 of the

Criminal Code (18 U.S. C. A., See. 231) in an investigation

conducted by the Securities and Exchange Commission in-

volving transactions in Breeze Corporations, Inc. stock upon

the New York Curb Exchange during the period between

October Ist, 1938 and March 25th, 1939. The alleged per-

jurious testimony almost entirely related to matter ante-

dating that fixed period.

Petitioner went to trial herein on November 14th, 1939

and was convicted on November 29th, 1939 on both counts

of the indictment. He was sentenced to imprisonment for

two years and to pay a fine of $2,000 on each of the two

counts of the indictment, the prison sentences on both counts

to run concurrently.

Petitioner appealed from the judgment of conviction to

the United States Circuit Court of Appeals for the Second

Circuit which resulted in a unanimous affirmance with

opinion by Sway, C. J.

Upon the trial, petitioner attacked for insufficiency each

assignment of perjury in both counts by moving for a diree-

tion and dismissal both at the close of the Government’s

and the entire case. The application was in all respects

denied (R. 482-520; 638-640). Notwithstanding, that the

application was treated by both Court and counsel as a

motion for the withdrawal of said assignments from the

consideration of the jury and that the Circuit Court in its

discretion might have regarded it as such, the Cireuit Court

3

held it would not regard the motion so made as equivalent

to a motion to withdraw.

During the course of the trial, substantial legal ques-

tions were raised by petitioner and by reason of their re-

jection, reversible error was committed as follows:

Petitioner offered in evidence Defendant’s Exhibit A for

Identification (R. 927). The rejection of that doecnment

prevented petitioner from presenting to the jury for its

consideration, evidence of absence of wilful intent to swear

falsely by the offer in that document to correct his testi-

mony. It served to deprive petitioner of an opportunity

to ecrroborate the witness Palmer called by the defense

and who gave direct positive evidence as to the making of

the agreement set out in the document. The rejection was

particularly grievous in that the Government had been given

wide latitude on that score and petitioner should have been

accorded an opportunity to show subsequent acts and decla-

rations as bearing on the important element of intent.

Several of the character witnesses called by the defense

were cross examined over objection and exception upon

collateral and irrelevant matter which in nowise was related

to defendant’s reputation for truth and veracity (R. 293-

569; 575). In one instance, the Government having opened

a new field of inqu’ry on cross examination sought to im-

peach the character witness by producing and reading into

evidence portions of that witness’s testimony given before

the United States Grand Jury (R. 523-536).

Upon cross examination (R. 589-634) of the witness

Palmer, called by the defense, the Government, over objec-

tion and exception and the Trial Court’s admonition that

the course was dangerous, was permitted to develop upon

the claim that such testimony would affect the witness’s

credibility, a line of inquiry which failed to discredit the

Re RE IE. SYR FE EP aa?

fas EEE DOS

4

witness but which imputed both to the defendant and said

witness the commission of other crimes and offenses.

During the course of the trial there was comment by

juror No. 4 which the Trial Court labelled improper. Peti-

tioner urged that the usefulness of that juror, particularly

following questioning and admonition by the Court, had been

impaired to the extent that petitioner could not receive a

fair trial by an impartial jury, yet his motion for the with-

drawal of a juror and a mistrial was denied (R. 267-275).

Upon the trial, evidence was given by both sides respect-

ing the making of an agreement between petitioner’s coun-

sel and the Securities and Exchange Commission Examiner

whereby defendant would be accorded the right to examine

the transcript of his testimony (upon which this perjury

indictment is based) for the purpose of correcting errors,

inaccuracies or omissions before he became bound thereby.

Although the examiner who testified for the Government

denied the making of the agreement, the evidence, as bear-

ing upon the element of intent, offered by both sides was

submitted to the jury. Upon this issue, at petitioner’s

request the Court charged in substance (R. 706) that if they

found such an agreement or stipulation to have been entered

into, and that the defendant believed such right existed and

that if he gave his testimony in good faith in reliance there-

on, he was entitled to an acquittal. But the Court refused

to charge its corollary, viz., that even if the jury found

that no agreement or stipulation such as claimed by the

defendant was entered into but the other circumstances

existed and were found, then the defendant was entitled to

an acquittal. This was tantamount to an instruction to the

jury that before they could acquit the defendant notwith-

standing the absence of corrupt motive and wilful intent,

they must find as a fact the existence of the agreement

granting the defendant the right to correct his testimony.

5

The refusal of the Trial Court to charge as requested

(R. 701) to the effect that evidence of the defendant’s

good character of itself, if believed by the jury, is sufficient

to create a reasonable doubt where otherwise no reasonable

doubt would exist, was, as your petitioner shall demonstrate

in the supporting brief, reversible error but the Court’s

main charge (R. 721) was tantamount to an instruction

that evidence of good character must outweigh the positive

evidence in the case to entitle petitioner to the benefit of any

reasonable doubt which might thereby be created. Over

objection and exception, the Trial Court permitted evidence

of petitioner’s acts and declarations after the date fixed in

the indictment wholly unrelated to the crime charged and

which imputed to the petitioner the commission of other

crimes.

Your petitioner respectfully submits that the foregoing

errors are not only serious, substantial and prejudicial but

have had the cumulative effect of depriving your petitioner

of a fair trial by an impartial jury in violation of peti-

tioner’s constitutional rights which ought to be reviewed by

this Court.

Questions Involved.

(1) Did the Cireuit Court err in affirming the judgment

of conviction?

(2) Did the Circuit Court err by its refusal to exercise

its discretion and treat the motions for dismissal and direc-

tion as motions for withdrawal?

(3) Does the erroneous submission of any one assign-

ment of perjury in *ach of the counts of the indictment

require a reversal of the conviction?

6

(4) Was the defendant deprived of a fair trial by an

impartial jury by reason of (a) the refusal of the Trial

Court to charge as requested respecting the probative effect

of evidence of good character, (b) the improper and preju-

dicial cross examination of character witnesses called by

petitioner, (c) the improper and prejudicial cross examina-

tion of the witness Palmer ealled by petitioner, (d) failure

of the Trial Court to charge as requested by petitioner

respecting criminal intent and corrupt motive notwithstand-

ing a negative finding by the jury as to the making of the

agreement reflected in the Defendant’s Exhibit A for Iden-

tification, (e) the circumstantial evidence and testimony by

inference of petitioner’s subsequent acts and declarations,

imputing to petitioner the commission of other unrelated

crimes, permitted over objection and exception, and (f)

the misconduct of juror No. 4, labelled improper by the Trial

Court?

Assignment of Errors.

It is respectfully submitted that the Courts below erred

by giving in effect negative answers to each and every one

of the questions formulated in the preceding paragraph.

Statute Involved.

“Whoever, having taken an oath before a competent

tribunal, officer, or person, in any ease in which a law

of the United States authorizes an oath to be admin-

istered, that he will testify, declare, depose, or certify

truly, or that any written testimony, declaration,

deposition or certificate by him subscribed, is true,

shall willfully and contrary to such oath state or sub-

scribe any material matter which he does not believe

to be true, is guilty of perjury, and shall be fined not

more than $2,000 and imprisoned not more than five

years.”

| ip Se a rca ie

Reasons for Granting the Writ.

(1) The Cireuit Court below by affirming the judgment

of conviction, sanctioned the Trial Court’s charge, and its

failure to charge, as requested by petitioner, on the question

of probative effect of evidence of defendant’s good character

which is

a. in direct conflict with the decision of this Court—

Edgington v. United States, 164 U. S. 361, and

b. in direct conflict with the decisions of the other

circuits on the same matter, viz., Roth v. U. S. (6th Cir-

cuit) 294 Fed. 475; Snitkin v. U. S. (7th Circuit) 265

Fed. 489; Egan v. U. S., D. C., 287 Fed. 958, although it is

supported by Kreiner v. U. S. (2nd Circuit) 11 Fed. (2d)

722; Kaufman v. U.S. (3rd Cireuit) 282 Fed. 776; Grace

v. U. 8. (5th Cireuit) 4 Fed. (2d) 658; Warren v. U. 8S.

(8th Circuit) 250 Fed. 89, and Joyce v. U.S. (9th Circuit)

294 Fed. 665.

(2) This conflict presents in and of itself an important

question of Federal Criminal Law which should be settled

by this Court.

(3) The holding by the Circuit Court of Appeals in and

for the Second Circuit (Kreiner v. U. S. (supra) ), ‘that evi-

dence of the defendant’s good character in and of itself, if

believed by the jury, is not sufficient to create a reasonable

doubt where otherwise no reasonable doubt would exist’’,

is in conflict with the applicable local [New York] decisions

(People v. Marcus, 236 A. D. 93; People v. Gilbert, 199 N. Y.

10; People v. Millard, 247 A. D. 253; People v. Ulman, 258

A. D. 262; People v. D’ Anna, 243 A. D. 259) and thus calls

for an exercise of this Court’s power of supe.vision in

i

8

accordance with the doctrine announced in Erie Railroad Co.

v. Tompkins, 304 U. S. 64.

(4) The Cireuit Court departed from the accepted and

usual course of judicial proceedings, sufficient to call for an

exercise of this Court’s power of supervision, when it re-

fused to exercise its discretion and treat the motions of

petitioner for direction and dismissal at the close of the

Government’s and entire case, as motions for withdrawal,

particularly since it appears that counsel and the Trial

Court treated them as such, in arguing said motions ad-

dressed to each and every specific assignment of perjury

in each of the two counts. The Circuit Court’s failure to

do so constitutes an abuse of discretion. Section 269,

Judicial Code, 28 U. S. C. Section 391; Crawford v. U. S.,

212 U.S. 183.

(5) The Trial Court’s rejection of Defendant’s Exhibit

A (R. 927) for Identification deprived the petitioner, among

other things, of a fair trial, for he was prevented from pre-

senting for the jury’s determination, evidence of absence

of wilful intent to swear falsely through the offer by said

document to correct his testimony. The denial of that right

is in conflict with the applicable decision of this Court. U.S.

v. Norris, 300 U. S. 564. It likewise deprived defendant of

an opportunity to corroborate the witness Palmer. Peo. v.

Epstem, 245 N. Y. 234. In addition, since the Government

was given wide latitutude on that score, defendant should

have been permitted to show subsequent acts and declara-

tions as bearing on the question of intent. Shreve v. U. S.,

103 F. (2) 796.

(6) The Trial Court by denying petitioner’s motion for

the withdrawal of a juror and declaring a mistrial by reason

of comments of Juror Number 4, which the Trial Court

labelled improper, deprived your petitioner of his constitu-

Coe

9

tional rights to a trial by an impartial jury by reason of

such misconduct (R. 267-275). Sunderland v. U. S., 19 Fed.

(2d) 202, 212.

(7) The defendant was not granted a fair and impartial

trial in that the Trial Court permitted (a) grossly improper

and prejudicial cross examination of character witnesses,

Sloan v. U. S., 31 Fed. (2d) 902; Pittman v. U. S., 42 Fed.

(2d) 793, (b) the cross examination, over objection and

exception of petitioner, of the witness Palmer which re-

lated to separate, distinct, disconnected and irrelevant

matter, and while permitted on the Government’s claim

that the testimony was for the purpose of affecting the

credibility of the witness, the effect thereof was highly prej-

udicial in that there was a complete failure to discredit the

witness yet there was imputed both to the defendant and

said witness the commission of a crime not mentioned or

described in the indictment, Gart v. U. S., 294 Fed. 66;

Manning v. U. S., 287 Fed. 800, (c) having granted peti-

tioner’s request to charge No. 32, committed error by its

refusal to charge request No. 31 as the corollary thereof,

since the combined effect of the charge and refusal was to

instruct the jury substantially that even if petitioner be-

lieved that he had a right to correct his testimony and gave

his testimony in good faith and in reliance thereon. all of

which would negative the criminal intent and corrupt motive

which are essential ingredients of the crime of perjury, the

jury must nevertheless convict if they found as a fact that

the agreement claimed was not entered into, and (d) evi-

dence of defendant’s conduct subsequent to the date of the

alleged commission of the crime which was highly preju-

dicial and tended to inflame the jury since it imputed the

commission of other crimes unconnected with the crime

charged in the indictment. Gordon v. U. S., 254 Fed. 53;

Weil v. U. S., 2 Fed. (2d) 145.

10

WHenerore, your petitioner respectfully prays that this

petition for a Writ of Certiorari to review the judgment of

the Circuit Court of Appeals herein be granted.

Dated: New York, N. Y., May 27th, 1940.

JosePH J. Mascucn,

Petitioner.

by Harry W. Cotmery,

Office & P. O. Address,

Topeka, Kansas,

Frank L. Mruer,

Office & P. O. Address,

70 Pine Street,

Borough of Manhattan,

City of New York,

Counsel for Petitioner.