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United States v. Krulewitch.

May 11, 1948


Author: Chase

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This is an appeal from a judgment of conviction and sentence on appellant's fourth trial on the same indictment, the first having resulted in jury disagreement, the second in a conviction - reversed by this court on appeal - and the third in a mistrial. We assume familiarity with the opinion on the former appeal, United States v. Krulewitch, 2 Cir., 145 F.2d 76, 156 A.L.R. 337, and rely on that for a statement both of the nature of the charge, violating the White Slave Traffic Act*fn1 and conspiring to do so,*fn2 and of the evidence, much of which has again been shown, to the extent that it was there disclosed. Additional facts supported by the evidence will be referred to as necessary in discussing the points now relied upon for reversal.

The claimed errors are (1) that, after granting the appellant's motion to suppress certain evidence obtained through an illegal search of the appellant's apartment, the court admitted other evidence upon the assurance of the district attorney that it had been obtained independently of that search and without an investigation of its own to determine the truth of that assertion; (2) that the appellant was denied the right to show in cross-examination of the government's principal witness, Mrs. Sorrentino,*fn3 where that witness was living at the time of the trial; (3) that statements of a co-conspirator were admitted as evidence against the appellant though they were made after the alleged conspiracy was ended; (4) that a witness who testified concerning a conversation he had with the appellant about the rental of a lodging house in Miami, Fla., known as the El Chico Hotel, was allowed to state his "understanding," gained from what the appellant said to him, of the use the appellant intended to make of the leased property; (5) that evidence tending to show that Mrs. Sorrentino had attempted to blackmail the appellant was excluded; (6) that the jury was instructed that a finding that the interstate transportation of the woman for an immoral purpose not amounting to prostitution would satisfy the requirements for conviction; (7) that the judge failed to charge that the evidence of the woman alleged to have been illegally transported by the appellant should be scrutinized closely and considered with great caution; (8) that certain requests to charge were erroneously denied; and, finally, (9) that an inquiry as to whether or not the jury might recommend clemency was inadequately answered. In addition the appellant while this appeal was pending moved in this court for a remand to the district court to enable him to proceed with an application for a new trial. The motion was denied with the proviso that if the district court saw fit to request a remand, the request would be granted. Appellant argues that the district court refused to make the request without sufficient investigation of the facts upon which appellant's motion was based.

In our opinion no reversible error has been shown. There were several instances when objection was made to evidence which the government sought to introduce, the objections being based on the assertion of appellant's counsel that the evidence was the result of clues obtained in the illegal search. Each time, however, the evidence was admitted upon the assurance of the prosecuting attorney that the evidence had been made available by investigation independent of the search. The point now made is that, whenever a new item of evidence was challenged, the court was bound before admitting it to take testimony as to its origin.

It is, of course, now settled law in federal courts that evidence is inadmissible not only when obtained during an illegal search but if derived from information gained in an illegal search. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A.L.R. 1426; see also Weiss v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298; Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; Goldstein v. United States, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312. Moreover, once it is shown that the search is illegal, "the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree" at the same time leaving "ample opportunity to the Government to convince the trial court that its proof had an independent origin." Nardone v. United States, supra, 308 U.S. at page 341, 60 S. Ct. at page 268, 89 L. Ed. 307. How that shall be done must necessarily be left to the unabused discretion of the court, depending upon the circumstances, to the end that the defendant's rights be safeguarded and at the same time the needed continuity of the trial be preserved unbroken by a defendant's repeated and inadequately supported assertion that the evidence is of illegitimate origin. Needless to say, if the time and continuity factors were wholly disregarded, the disruptions of a criminal trial might well as a practical matter end only when the ingenuity and perseverance of counsel for the defendant had been exhausted. The necessarily somewhat elastic procedure for solving the problem is authoritatively stated in Nardone v. United States, supra, 308 U.S. at page 342, 60 S. Ct. at page 268, 89 L. Ed. 307: "Therefore claims that taint attaches to any portion of the Government's case must satisfy the trial court with their solidity. * * * The civilized conduct of criminal trials cannot be confined within mechanical rules. It necessarily demands the authority of limited direction entrusted to the judge presiding in federal trials, including a well-established range of judicial discretion, subject to appropriate review on appeal, in ruling upon preliminary questions of fact. Such a system as ours must, within the limits here indicated, rely on the learning, good sense, fairness and courage of federal trial judges." We find here no violation of that rule. The evidence in question could have been procured wholly by investigation unconnected with the illegal search. Defense counsel did no more than to assert that the evidence was unlawfully obtained. Under these circumstances, we think, the trial court's acceptance of the assurance of the prosecuting attorney, who presumably was in possession of actual knowledge as to the origin of the evidence, was not an abuse of discretion.

Mrs. Sorrentino, or "Joyce," the girl the appellant was accused of illegally transporting from New York to Florida, was the chief witness for the government. The first question asked her on cross examination was where she was then living. She said she did not "care to disclose that" and a direct answer was not then demanded. However, after she had been excused to permit other witnesses to testify and then been recalled and cross examined at some length, the following occurred:

"Q. Where do you live now, Mrs. Sorrentino?

"Mr. Hilly: Objected to if your Honor please.

"A. I wouldn't say because he would be up there bothering me.

"The Court: That question was asked the other day and she said she would prefer not to state it.

Mr. Hilly: If Mr. Todarelli wants the address I will give it to him, but I am not going to put it on the record. I do not think it is material on the record, if your Honor pleases.

"Mr. Todarelli: I think we are entitled to know ...

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