Before L. HAND, SWAN and CLARK, Circuit Judges.
The defendants, William and Katherine Cohen, were tried to a jury on two counts of an indictment charging them with having sold heroin in violation of 21 U.S.C.A. §§ 173, 174. On two different occasions government agents had given marked money to informers, having first searched the informers to ascertain that they had no heroin at that time. In each case the informer, constantly under the gaze of the government agents, proceeded to meet the defendants, hand them bills, and receive something from one of the defendants. The packages given to the informers were turned over to the agents immediately after the informer had parted with the defendants, and upon analysis were determined to contain adulterated heroin. Shortly after the second of these incidents defendants were arrested, and William Cohen was found to have $16 of the marked money he had been given by the informer two days previously. The jury found the defendants guilty only on the second count, which related to the later sale. Seemingly the discovery of the marked money in Cohen's hands afforded the jury the convincing proof of defendants' connection with the second sale which it appears to have found lacking as to the first. William Cohen was sentenced to five years' imprisonment, Katherine to three years, and each was given a fine of $1, which was remitted.
On this appeal defendants were represented by counsel assigned by the court, being other counsel than the attorney who tried the case below. We are indeed grateful for the diligent and faithful fulfillment of this task at the court's behest and for the able argument presented on behalf of the accused. Counsel has urged six grounds for reversal of the conviction, viz: (1) The evidence was insufficient to support the verdict of guilty on the second count; (2) the court abused its discretion in failing to compel production by the prosecution of information upon which a motion to compel disclosure to the court of the proceedings before the grand jury could be based; (3) the prosecuting attorney was guilty of misconduct in suggesting by a question he asked in cross-examination of Katherine Cohen that William Cohen had been convicted of crime; (4) cross-examination of Katherine Cohen as to prior convictions of crime was improper; (5) the trial court abused its discretion in sentencing William Cohen; and (6) statements of the prosecutor in his summation were so prejudicial as to require the declaration of a mistrial. Of these the last alone seems to us to require extensive discussion; the first five may be disposed of shortly.
With regard to point one, the evidence of defendants' guilt seems to us, as it did to the trial judge, clear; we certainly cannot say that the jury could not reasonably have found them guilty on the second count. As to point two, although counsel several times mentioned that he was planning to ask the court to examine the testimony before the grand jury, he never made a direct request to the court for such action. Hence there could be no erroneous refusal by the court. In any event we could hardly say that the court's refusal to order the production of the minutes was an abuse of the wide discretion vested in trial judges as to this matter. Thus there was no reference of any sort to any of the various matters referred to in United States v. Alper, 2 Cir., 156 F.2d 222, 226 - the length of the record, the time necessary to have it transcribed, the possible delay in the trial, the "intolerable burden" of examining a lengthy transcript in an endeavor to discover inconsistencies for the defendants' benefit, the possibility that the judge might become an "active assistant of the defense," and so on.
Point three is without support in the record; it requires involved premises and distorted conclusions to discover in the question complained of any more than an attempt at identification of names used by the defendants, much less a suggestion or implication that the codefendant had been convicted of crime. As to point four, we find no error in the cross-examination of Katherine Cohen as to prior convictions of crimes, including misdemeanors. In United States v. Minkoff, 2 Cir., 137 F.2d 402, we followed the New York rule permitting such examination; and while the adoption of Rule 26 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., may give the United States courts some mandate to reexamine their rules of evidence, we are not convinced of the desirability of a change in this rule or repudiation of our former decision. Finally the sentence imposed on William Cohen was within the statutory limits; we will not tamper with the trial court's discretion in its imposition of sentence based upon its low estimate of the culprit.
We turn, therefore, to defendants' contention that statements of the prosecutor in his summation were so prejudicial as to require a new trial. This objection is based particularly upon the following statement by the prosecutor: "All we know from the evidence in this case, and we are restricted to the evidence in this case, is that this man Cohen was found stalking around the street at night, or at 4 o'clock in the morning, with a known prostitute, and part of the money that was given to her was found upon him, and in the law a man who lives on the proceeds of prostitution is not a painter but is, as the evidence indicates in this case, a pimp." This was immediately followed by defendants' motion for a mistrial "on the ground of that informal remark made by counsel, adverting to no testimony, no evidence in the record, referring to the commission of another crime with which he is not charged." The court, however, denied the motion, saying, "I think this is fair comment."
It is this passage which must be relied on to justify a new trial if one is to be granted. True, objection is made to this later statement: "Another thing you might consider. Why do these people give the address of 440 West 40th Street, when they did not live there? What were they concealing at their home? Was it because Cohen probably, as Katherine Cohen, Katherine Roberts, and so on down the list, has piling up his seven or eight hundred dollar bank roll that he totes around the City of New York without any legitimate occupation?" This also led to counsel's objection "to that kind of statement, charging the defendant with commission of the crime of compulsory prostitution," which was passed by the court without comment. But this statement seems to us harmless, and in any event based upon uncontradicted evidence and suggesting inferences which the jury might well have drawn from the evidence.
The earlier charge that William Cohen was a "pimp" is of course more serious. That the remark was undignified for a representative of the United States Government, and in questionable teste, may be conceded. But whether it was so prejudicial as to deprive the defendant of a fair trial must be decided according to the laws of evidence rather than the laws of etiquette.
If the record afforded no justification for the prosecutor's charge, we might be compelled to order a new trial, Berger v. United States, 295 U.S. 78, 89, 55 S. Ct. 629, 79 L. Ed. 1314, although even then the Supreme Court has indicated that a new trial may be unnecessary where the case was strong, the evidence of guilt overwhelming, and the misconduct of the prosecuting attorney slight or confined to a single instance. But here we think the evidence gave sufficient support to the inference drawn by the prosecutor, which he expressly limited to the evidence before the jury, that reversible error is not shown.Malone v. United States, 7 Cir., 94 F.2d 281, certiorari denied 304 U.S. 562, 58 S. Ct. 944, 82 L. Ed. 1529.
In this connection we need to have in mind the circumstances under which the statement was made, as well as its exact content. It was made to answer a definite argument of the defense summation. In fact, the whole summation by the prosecutor, whether wisely or not, was cast in terms of answering the defense arguments. The prosecutor had already told the court that he did not expect to take more than five minutes for his argument; and he began by saying that he would try to keep within this time, "but there are a few fundamental points." With this he proceeded to recite specifically the contentions of his opponent and to answer them. The jury could not have failed to grasp this negative and defensive nature of his brief statements. The particular reference was his final statement ridiculing a defense claim that the extensive money found on defendant William may have come from his business earnings, Katherine having testified shortly that he was "a painter." The prosecutor had just argued that they had had no opportunity to disprove this, but that the defense counsel was a very able and experienced attorney who would have produced the boss painter with his records to have proved these as legitimate earnings, had that been the fact. Then followed the matter objected to, which, as we see, consisted of four statements of facts and inferences. Before we note these more particularly, we should observe the caution at the beginning, "All we know from the evidence in this case, and we are restricted to the evidence in this case," with the like caution at the end, "in the law a man who lives on the proceeds of prostitution is not a painter but, is, as the evidence indicates in this case, a pimp." This was certainly explicit warning to the jury that only the evidence as recollected controlled and that this was the prosecutor's inference from the evidence.
The prosecutor's four statements were that William Cohen was found "stalking around the street" at night, that his companion was a known prostitute, that part of the money given Katherine by the government informer was found on William, and hence that the evidence indicated that William was living on the proceeds of prostitution. The statements of fact were either quite true - thus Katherine, indubitably William's companion, was certainly a known prostitute, with eight convictions on this charge, by her own admissions - or else involved inaccuracies in the prosecutor's recollection on the evidence which did not change the picture. Thus at the time of his arrest he was actually in a restaurant; but on the two earlier occasions described by the government agents, he had been at least walking, if not "stalking," around the streets, once about 3:45 a.m., once around Midnight. So the marked money found on William was that given by the informer Bell in the second transaction. According to the testimony of both agents, Bell had handed the money directly to William, reversing the procedure used in the earlier instance where the marked money, which was never found, was given to Katherine. Thus the prosecutor was wrong as to this instance, though the conclusion was not unfair as to the general conduct of the pair.
Beyond these details, the general inference that the $755 found on William at the time of his arrest came from Katherine is reasonable on the basis of the evidence. The explanation for the funds given by Katherine on the stand was fantastically unconvincing. It was her claim that she and William had withdrawn the money from a Christmas Club account with the Girard Trust Company in Philadelphia in late December or early January. She said that they normally celebrated at the time of the Turkish Christmas, January 14, but that in this year they were late and were still carrying the money with them on March 25 for the purchase of Christmas presents. This improbable tale was demolished by the showing from the Trust Company that no withdrawal had been made at the time mentioned which could possibly have been the money which the Cohens claimed to have withdrawn, and further that neither of the Cohens had an account there at the time. The funds involved must have come from somewhere. The claim that these were his earnings as painter deserved the prosecutor's treatment of it. That, being demolished, left William without visible means of support. On this record the prosecutor's inference that the money found on William was his wife's earnings from her sordid profession was not beyond the bounds of reason. There is perhaps technically a further step to the conclusion that he was a pander or procurer, though in Lander v. Wald, 218 App.Div. 514, 219 N.Y.S. 57, affirmed 245 N.Y. 590, 157 N.E. 870, the word "pimp" is held broad enough to include the knowing receipt of money for pandering. But the difference practically and legally is certainly small; and in any event, the prosecutor was showing his meaning of the term by stating his premises. That he used the shorter and perhaps more vulgar expression did not carry him beyond the dictionaries of Messrs. Black or Webster, or the cases, e.g., Powell v. State, 108 Miss. 497, 66 So. 979.
In general it is within the discretion of the trial court to determine whether or not invective based on the evidence and inferences flowing therefrom exceed the limits of professional propriety. An appellate court will review the exercise of that discretion only where the invective is so palpably improper as to have been clearly prejudicial. Johnston v. United States, 9 Cir., 154 F. 445, 449. Here defense counsel, although given the widest latitude in making requests to charge and taking exception to the charge, made no request of the court to instruct the jury to disregard the allegedly damaging remarks. A request for an instruction, rather than the extreme remedy of a declaration of mistrial, would ...