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United States v. Giddins

decided: January 18, 1960.


Before Clark, Waterman, and Moore, Circuit Judges.

Author: Clark

These are appeals by Interstate Dress Carriers, Inc., and its president, Abe Giddins, from convictions after trial by jury of subornation of perjury in violation of § 18 U.S.C. 1622. The perjury was committed by Edward Kornfeld at a hearing conducted by the Interstate Commerce Commission on the corporation's application to extend its trucking operations between New York and certain southern states. Kornfeld testified that he was the production and shipping manager of Gerson & Gerson, Inc., that the company had a sewing factory in Virginia, and that it would utilize Interstate's transportation services if the certificate were granted. In fact, Kornfeld had no connection with Gerson & Gerson, but was associated with Petite Frocks, Inc., which company had no need for the transportation services involved. Kornfeld had no interest in Interstate, but he was related to Giddins through marriage and the two were frequent social companions.

The only direct testimony as to subornation was that of Kornfeld. Giddins admitted that he had requested Kornfeld to testify, but denied that he had induced or had known of the false statements. The resolution of this conflict depended upon an assessment of credibility -- a matter clearly within the province of the jury. It is unnecessary to decide whether Kornfeld's testimony was corroborated, since we see no reason to depart from the rule that the element of subornation, as distinguished from the element of perjury, is not subject to the requirement of corroboration. Cohen v. United States, 2 Cir., 27 F.2d 713; Doan v. United States, 9 Cir., 202 F.2d 674. No question is raised as to the sufficiency of the quantum of proof on the element of perjury.

The principal assignments of error relate to questions posed by the government on the cross-examination of defendants' witnesses. The first character witness, Justice DiGiovanna of the New York Supreme Court, testified that he had known Giddins since 1940 and that the defendant had an excellent reputation in the community for truthfulness and honesty. On cross-examination the following question was allowed over vigorous objection:

'Have you heard that the defendant Abe Giddins, the individual as to whom you have just testified, is the business partner of Harry Strasser, a convicted dope peddler, and the former business partner of the late Albert Anastasia?'

The response was negative.

Inquiry directed to a character witness' knowledge of disparaging rumors concerning an accused is almost universally permitted. 3 Wigmore on Evidence § 988 (3d Ed. 1940). Such questions are relevant to test the familiarity of the witness with the reputation in question. Further, the defendant by voluntarily adducing evidence of his good reputation is foreclosed from objecting to evidence suggestive of the contrary. The practice has been cogently criticized, however, on the ground of the jury's inability to limit its consideration of such evidence to the issue of reputation. Ibid. This problem is aggravated where, as here, the answer is negative, and thus the inquiry is without probative significance unless others testify to the existence of such rumor or unless the witness' demeanor suggests that his denial is fabricated. But the assumption that a jury, even though instructed as to the immateriality of the exchange, will properly ignore it is doubtless based on unreality.

This consideration led Judge Frank in United States v. Michelson, 2 Cir., 165 F.2d 732, to recommend that the Supreme Court consider limiting the permissible scope of cross-examination of character witnesses. On certiorari the Court in Michelson v. United States, 335 U.S. 469, 486, 69 S. Ct. 213, 223, 93 L. Ed. 168, agreed 'that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other.' But it was recognized that 'both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record.' 335 U.S. at page 480, 69 S. Ct. at page 221. Thus the best practical solution was to be found in investing the trial court with wide discretion to control cross-examination. These rulings were to be disturbed by a Court of Appeals only 'on clear showing of prejudicial abuse of discretion.'

The Court did, however, provide protection from unwarranted innuendoes by requiring the trial judge to ascertain, out of presence of the jury, whether 'the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant's reputation.' 335 U.S. at page 481, 69 S. Ct. at page 221. While the irrelevancy of this inquiry into the actual occurrence of the event was recognized, it was considered to be pragmatically justified. Here this procedure was followed by the trial court. Government counsel assured the court that FBI reports had revealed a business partnership of Giddins, Strasser, and Anastasia in a dress-contracting establishment. Counsel also remarked that the relationship had been the subject of comment in a newspaper story. With this showing of good faith by the government the allowance of the question cannot be deemed a prejudicial abuse of discretion. See United States v. Alker, 3 Cir., 260 F.2d 135, 149, certiorari denied Alker v. United States, 359 U.S. 906, 79 S. Ct. 579, 3 L. Ed. 2d 571; Segal v. United States, 8 Cir., 246 F.2d 814, 820, certiorari denied 355 U.S. 894, 78 S. Ct. 269, 2 L. Ed. 2d 192. While the wording of the question taken by itself might suggest an inference that the reference was to a partnership in illegal endeavors, this was dispelled by the tenor of related questions and answers on direct and cross-examination of the defendant.

In its charge at the end of the trial the court advised the jury as follows:

'In this connection the Government was permitted by me to ask one of the witnesses whether he had heard that the defendant was a partner of Anastasia and Strasser. The witness said that he never did. I permitted this because the witness testified concerning the defendant's reputation, and we all know that reputation is the sum total of what we hear about people, and that is why the question was relevant. But I must add that there was no evidence in this case that the defendant Abe Giddins was a partner of either of these two men, and certainly the mere asking of the question doesn't prove that he was.

'In fact, I charge you specifically that there was no evidence in the case connecting the defendant Abe Giddins with either of these two men in any partnership relationship whatsoever.'

This instruction was a proper statement of the law. No cautionary instruction was requested at the time the question was posed, perhaps due to counsel's desire to avoid further emphasis on the matter. In the absence of such request, the instruction at the end of the trial sufficed. See Malatkofski v. United States, 1 Cir., 179 F.2d 905, 914.

Objection is also raised to the government's representation on cross-examination of Giddins that it was prepared to prove that he or someone else on the part of Interstate had committed a prior similar act of suborning another witness, Max Sawitz. Sawitz had testified at the ICC hearing in June 1953 that he was President of Colonial Fashions, Inc. When Giddins denied that this testimony was false, the government introduced a copy of a report by Colonial to the Virginia Corporation Commission which indicated that Giddins was its president from November 1952 to ...

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