# Petition for a Writ of Certiorari — Bernstein v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0896%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1942 - **Citation:** 315 U.S. 811 ## Text 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 PAGE 12 14 il 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) 12 6, 12 25 12 8, 12 dD, 12 9, 12 8, 12 6,11 6,11 - 10 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? Geert 4 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 | RULE EER RTL EEL LINE OME A a 8 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. 9 — 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, — --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0896%3A1. Public record. Not legal advice.