Petition for a Writ of Certiorari — Bernstein v. United States

INDEX

PIONS a nanensiianacn queers en cee eae er aaa .

Summary Statement of the Matter Involved...

Reasons Relied on for the Allowance of the Writ.......

Brief in Support of Petition........

Opinion of the Courts Below... ea Se Ae

NOI Ba. fee ach AD + oe Ne

Specification of Mrrors.i

Sarre en oe SO Rice

Argument

A—The Circuit Court erred in deciding that the ae-

tion of the Trial Court in permitting proof of

unrelated arrests and criminal charges against

petitioner, thereby putting his character in issue,

did not constitute reversible error. ne

B—The rulings on evidence and the charge of the

Trial Court which misinterpreted the indictment

and the statute upon which it was based were so

contusing that petitioner was denied a fair trial.

ob AEE NT CER ERD eae eee sont

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TABLE OF CASES CITED

Boyd v. United States, 142 U. S. 450, 458 (1891)...

Brown v. United States, 83 Fed. (2) 383 (C. C. A. 3,

1936)

Eley v. United States, 117 Fed. (2) 526 (C. C. A.

1941) :

Greer v. United States, 245 U. S. 559, 560 (1917)........

Hilliard v. United States, 121 Fed. (2) 992 (C. C. A.

1941)

Mackreth v. United States, 103 Fed. (2) 495 (C. C. A.

1939)

Tedesco v. United States, 118 Fed. (2) 737 (C. C. A.

1941)

Tinsley v United States, 43 Fed. (2) 890 (C. C. A.

1930)

STATUTES CITED

Title 18, U. S. C., See. 550

Title 21, U. S. C., See. 174

Title 28, U.S. C., See. 347(d)

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IN THE

Suprene Court of the United States

OCTOBER TERM 1941

No.

SAMUEL BERNSTEIN,

Petitioner and Appellant below,

against

Unirep States or AMERICA,

Respondent and Appellee below.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable the Supreme Court of the United States:

The petition of Samuel Bernstein respectfully shows:

Summary Statement of the Matter Involved.

Petitioner was convicted by a jury after a trial in the

United States District Court for the Eastern District of

New York upon an indictment (R. &) charging him and

four other defendants in two counts with (1) knowingly

concealing and facilitating the concealment of three grains

of morphine knowing that it was imported contrary to

law, and (2) with knowingly concealing, transporting and

facilitating the concealment and transportation of thirty-

nine ounces of morphine knowing the same to have been

so transported.

SERIAL LEAP ELS RE ERI LD NEE ES SE NTS SENT AG

“9s oh tates ed Owns Vane te lee a See ints tee

2

Petitioner was sentenced to serve a term of ten years

and to pay a fine of $500, the seme sentence to run con-

currently on both counts of the indictment (R. 786).

Petitioner appealed to the United States Circuit Court

of Appeals for the Second Circuit upon the ground that

he had been denied a fair trial in that the Trial Court had

permitted into evidence inadmissible and prejudicial proof

of unrelated arrests and criminal charges and had con-

fused the jury by misinterpreting the crime charged. The

Circuit Court in an opinion by Judge A. N. Hand affirmed

the conviction (R. 839).

The first question presented is:

Whether it is proper to put the character of a defendant

in issue, in a criminal trial, through proof of arrests and

criminal charges unrelated to the crime charged, and

through instructions by the Trial Court to the jury that

such proof should be considered by them, where the defend-

ant did not testify or put his character in issue and where

the crime charged did not involve proof of motive or intent.

At the trial, one Adelman, who kad previously been

convicted for possession of the narcotics in question, which

had been found in his home, testified that about one month

prior to his, Adelman’s, arrest, petitioner had handled the

narcotics. Two relatives of Adelman’s testified to peti-

tioner’s presence in the Adelman home, but denied knowl-

edge of the narcotics. Adelman further testified that it

was not until approximately one year after his conviction

that he had informed the authorities of petitioner’s con-

nection with the case.

There was no proof that the other defendants with whom

petitioner was jointly indicted ever knew or saw him. No

narcotics were produced in the court room, but a Govern-

ment chemist testified that he had made tests prior to

Adelman’s trial and that the presence of narcotics was

indicated on some of the utensils which were exhibits both

in that trial and in the instant case.

PET GETS IIE DRIES SPILLS BOT OLLIE G NEI OMIT IES SS GILNEAS 5 Oa

3

The petitioner did not testify at the trial. Nevertheless,

two Government agents were permitted to testify concern-

ing petitioner’s arrest in another and unrelated case in

another jurisdiction in March, 1940, fourteen months after

the alleged commission of the instant crime, as follows

(R. 718) (Agent Olivera testifying) :

“(). Give us the address? A. 31 West 85th Street.

We told Mr. Bernstein—I introduced Mr. Rogers, a

narcotic agent, and stated to Mr. Bernstein that we

were Federal narcotic agents. He asked us if he eould

get dressed. We told him that he could. We placed

him under arrest on the indictment. I asked the de-

fendant if he would give us permission to search the

premises. I called his attention to the fact that he

had a constitutional right to refuse such permission;

that we had the right to search on the basis of a war-

rant that we had for his apprehension. He had no

objection to the search. We searched the premises.

As we went in there on the right-hand side there was

a couch. At the foot of that couch there was a small

closet and from the closet we removed articles consist-

ing of two of the last exhibits, 24 and 25 for iden-

tification.”

It should be noted that the indictment in the instant

case was not filed until June 4, 1940 (R. 7), several months

after the arrest testified to above; the indictment referred

to by Agent Olivera being another case.

And further concerning the same incident (R. 724):

“Q. What question did you direct to Samuel Bern-

stein relative to this exhibit? A. I asked the defendant,

Sam Bernstein, if this exhibit was one of the exhibits

that belonged to his son. The defendant, Sam Bern-

stein, did not answer, remained silent. I further asked

the defendant in relation to this exhibit if this was a

sample of the opium he had given to Adelman.”

Agent J. J. Rogers was also allowed to testify over

objection and exception to the circumstances of the arrest

+

in March, 1940. There was no basis for the introduction

of this testimony except to prejudice the jury. It con-

cededly had no connection with the instant case.

Motions for a mistrial, a severance and to strike were

all denied upon the ground that no authorities or prece-

dents for such rulings were submitted to the Court (R.

745).

Adelman testified (R. 248):

“Q. You had met Mr. Collins some time about ten

or eleven years before? <A. That is correct.

Q. Connected with his official duties? A. That is

correct.

Q. As Customs Inspector. A. That is correct.

Q. That was before you went to Brussels? A. That

is correct.

Q. Did your meeting with Collins have anything to

do with narcotics? A. No, sir.

Q. Nor with the place of your birth? <A. No.

Q. Nor with the arrest of any person other than

yourself? A. He took me down as a witness against

Sam Bernstein.”

Counsel promptly moved for the withdrawal of a juror

and for a mistrial. This motion was denied (R. 248).

Adelman testified further (R. 249):

“Q. I ask you in plain words: you have just stated

that you were taken as a witness; is that statement

correct, yes or no? A. At the time he talked to me I

was not a witness. He put me under bonds for a

witness against him.”

Counsel again moved for the withdrawal of a juror, for

a mistrial and for a severance. This motion was denied

with an exception (R. 249).

Despite objection, Narcotic Agent White related an inci-

dent in which he had a conversation with the defendant

Lorber on February 24, 1939, six weeks after the arrest

of Adelman, and not in the presence of the defendant

Bernstein (R. 53):

Bo RLY LADIES AEE AIRLINE

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“Q. Please give us the conversation? A. Lorber

asked me if I was looking for a man named Sammy,

who had a very prominent disfiguration on his face.

I said { was. I told him I believed Sammy was * * *.”

It should be noted that the defendant Bernstein was

referred to as Sam throughout the trial. There was no

showing that this had any connection with the instant case.

It is unquestioned that none of the foregoing testimony

had any connection with the crime charged in the indict-

ment.

Not only did the Trial Court permit the prosecution to

put petitioner’s character in issue through this type of

evidence, but in its instructions to the jury it directed the

jurors’ attention to the fact that this was a proper issue

to be considered by them when it stated (R. 747):

“Your task will consist almost exclusively in deciding

who is telling the truth and in order to aid you in that

process it seemed necessary to permit a very consider-

able latitude in inquiry into the activities and the con-

duct and manner of living, et cetera, of the chief char-

acters in the case.”

By its decision the Cireuit Court disagreed with decisions

of the Supreme Court of the United States and with deci-

sions of other circuits when in its opinion it stated in

substance that there was no merit to objection to the intro-

duction of this prejudicial type of proof (R. 843). It over-

looked the fact that intent or motive was not involved and

that this evidence was inadmissible for any purpose. When

the opinion stated that the Trial Court would have acted

if requested, it disregarded the record of the proceedings

which shows the Trial Court’s refusal to strike or to sustain

other objections to this evidence (R. 248, 249, 745).

The second question presented is:

Whether or not the Trial Court in its charge misinter-

preted the statutes upon which the indictment is based

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(Title 21, U. S. C., See. 174; Title 18, U. S. C., See. 550)

and so denied petitioner a fair trial.

The rulings of the Court and its charge to the jury per-

mitted the petitioner to be tried for crimes not charged

in the indictment and so confused the issues involved that

the petitioner was foreclosed from his right to a fair trial.

The petitioner was ostensibly on trial for possession

of narcotics, yet the Court instructed the jury that the

defendant was also accused of the crimes of illegal con-

spiracy, of manufacture and of sale of narcotics.

The simple issue of concealment or possession of illegally

imported narcotics by the petitioner was not given to the

jury to determine petitioner’s guilt or innocence.

At R. 752 the Court stated as follows:

“* * * The product as so treated, then had to get

into circulation.

Now the traffic in narcotics is like a legitimate enter-

prise. It is not sufficient that any articles in trade or

commerce be manufactured. They must not only be

manufactured but they must be sold. They must get

into distribution; so you will see that the Government

charges that these four defendants acting, some for

one purpose and some for another, handled this ac-

quisition of supplies, to fabricate a new substance and

the distribution of the new substance, a completed

thing. That is what the Government charges.”

Further, at R. 753, after asking the jury to determine

whether or not the witness Adelman could have accom-

plished the crime alone, the Court characterized the crime

involved as a “well rounded enterprise”, and then said:

“* * * you then inquire as to whether these de-

fendants or any one of them was shown by satisfactory

and the required margin of proof to have been the

persons as to one or all, who did co-operate or did

aid and abet the accomplishment of that illegal and

fairly well rounded enterprise.”

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PEERED ORS

EEL OLE BML N TER I CTI, LIL TLS ENE RET I BOO LEIA ROTA TR I a ee

After the main charge the defendant was compelled

by necessity of the Court’s interpretation to request the

following (R. 827):

“Tf the Jury does not find from the evidence that all

of the defendants acted jointly as a single group they

must acquit.”

The Court refused to so charge and exception was taken

(R. 769).

It is obvious that the Trial Court charged in this manner

merely to bolster its previous erroneous rulings during the

trial, when it had admitted evidence relating to the other

defendants, showing their participation in many immoral

and criminal activities unconnected with the petitioner (R.

268, 510, 182, 190, 326).

In a vast number of instances evidence was offered

against and confined to isolated defendants (R. 48, 50, 51,

57, 60-65, 73, 77, 80, 81, 93, 96, 98, 100, 103, 105, 106, 108,

109, 112, 114, 115, 122, 128, 129, 135, 137, 144, 145, 147, 149,

151, 156, 158, 159, 160, 161, 163, 185, 186, 189, 318, 344, 370,

372, 380, 381, 382, 387, 388, 392, 399, 401, 404, 503, 694, 717,

720). Much of this did not in any way concern petitioner,

but dealt with the criminal activities and associations of the

other defendants with notorious criminals.

In each instance the Court instructed the jury that the

testimony was to be considered only as to the defendant

against whom it was offered; this instruction completely

overlooked the human equation. It is not possible that any

jury could have obeyed these instructions.

II

Reasons Relied On for Allowance of the Writ.

1

The decision of the Cireuit Court of Appeals for the

Second Circuit is in direct conflict with the applicable law

established by the Supreme Court of the United States

and by the various Cireuit Courts which holds that the

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character of a defendant is not to be put in issue in a

criminal case through proof of unrelated arrests and

criminal charges unless the defendant himself does so.

This case does not involve proof of intent or motive.

Therefore it does not fall within the sole exception to the

settled law.

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The charge of the Trial Court improperly interpreted a

Federal statute (Title 21, U. S. C., See. 174) in that

it instructed the jury that it included the crimes of illegal

sale, manufacture and conspiracy to sell and manufacture

narcotics. The charge and rulings on evidence utterly

confused the issues. Petitioner was thereby denied a fair

trial upon the indictment.

Petitioner believes that this decision seriously affects

the judicial administration of criminal law and materially

prejudices the trial of a defendant.

WHereEFoRE, your petitioner prays that a writ of cer-

tiorari issue under the seal of this Court directed to the

Circuit Court of Appeals for the Second Cireuit directing

said Court to certify and send to this Court a full and

complete transcript of the record and proceedings of the

said Cireuit Court, had in the case numbered and entitled

on its Docket Calendar No. 63, “United States of America,

Appellee v. Samuel Bernstein, Appellant,” to the end that

this cause may be reviewed and determined by this Court

as provided for by the statutes of the United States; and

that judgment herein of said Circuit Court of Appeals

be reversed by this Court; and for such other and further

relief as to this Court may seem proper.

Dated, January 8, 1942.

SAMUEL BERNSTEIN,

By Hersert ZELENKO,

Counsel for Petitioner.

ei — Bree Si ORE ee EOS, —