December 31, 1946
Before L. HAND, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. Defendant contends that because he was acquitted as to the substantive crime, he could not be convicted of conspiracy to commit that crime. He relies on United States v. Zeuli, 2 Cir., 137 F.2d 845, in which we held that, if a defendant is convicted of a crime which, by its nature, necessarily involves cooperation with another person, the defendant may not also be convicted of a conspiracy to commit the crime. But here the substantive crime, theft, is not one which necessarily involves cooperation with anyone else.
2. Defendant argues that it was error to receive the exhibit which consisted of sheets because the sheets were not shown to have been in interstate commerce or to have been stolen. The evidence amply supports the conclusion that they were shipped in interstate commerce and that Reynolds was involved in their theft. They were thus admissible against Reynolds, and, on proof of the conspiracy, against Winters.
3. We see nothing whatever in defendant's assertion that the judge's remarks concerning the desirability of reaching a verdict constituted coercion of the jury.
4. The government argues that defendant's counsel abandoned his request that the judge inspect the written statement of the witness Martin. We shall, however, assume that that request was not abandoned and that the judge denied it. As, in the circumstances, the defendant was unable to procure inclusion of the statement, sealed, in the record so that we might inspect it, United States v. Ebeling, 2 Cir., 146 F.2d 254, 256, 257, is inapposite; see United States v. Beekman, 2 Cir., 155 F.2d 580, 584. But there is no reason to believe that the statement contained any relevant material. For, at most, it would have shown that Martin, who testified that the theft occurred "about March 20," had previously referred to a different date. But the date, if at all material, related only to the substantive count on which the defendant was acquitted. Moreover, the evidence as to the date would merely have served to show a variance between the testimony and the date set forth in the indictment; such a variance would not have been error.
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