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November 14, 1951


The opinion of the court was delivered by: WEINFELD

The defendant, now on probation following the expiration of a twelve year sentence, moves to set aside the judgment of conviction and to vacate the sentence. The Court has conducted a hearing pursuant to Title 28 U.S.C.A. § 2255. *fn1"

The defendant was convicted in this Court on September 6, 1938, on all seven counts of an indictment charging the sale and possession of narcotics and conspiracy. He was sentenced to twelve years imprisonment, fined $ 2,500, of which $ 500 was remitted, and placed on five years' probation to follow the prison term. The conviction was affirmed by the Court of Appeals on March 20, 1939. *fn2" The defendant served six years in prison, was released on conditional parole for the remaining six years and is currently on probation until June 1956.

 The indictment was the second in chronological order of three indictments, all based on the same facts- possession and sale of narcotics on two occasions.

 The first indictment, filed on April 23, 1937, charges one Hyman and another, Levine, with two sales of heroin to one Edward A. Murphy, a Government Agent, on March 13, 1937, and March 26, 1937. The indictment also contains a conspiracy count.

 The second indictment, filed on September 28, 1937, on which defendant was convicted, names Nathan Kaplan, alias '* * * 'Kitty" as the sole defendant, and also names Hyman and Levin as co-conspirators but not as defendants. It is identical in phraseology with the first indictment except for the overt acts in the conspiracy count.

 The third indictment, filed on January 5, 1938, names Max Kaplan, 'alias Brownsville Kitty' and the defendant herein, Nathan Kaplan, alias '* * * 'Kitty," as well as two other defendants. The substantive counts are the same as those in the first two indictments, although the conspiracy count and the overt acts differ.

 Upon the trial, Nathan Kaplan, the moving defendant, and Max Kaplan, named in the third indictment, were referred to under the same aliases, 'Kitty' or 'Kitty Kaplan.'

 The conviction was based principally upon the testimony of one Laura Miller, a Government informer, with a record for prostitution and possession of narcotics, Murphy, the Government Agent, to whom the sales were made, and another Government Agent. The evidence disclosed that some six years before the acts alleged, Laura Miller had known a 'Kitty' Kaplan, admittedly not Nathan Kaplan, the moving defendant, who had supplied her with narcotics. In February 1937, while acting as a Government informer, she left a message for the 'Kitty' Kaplan she knew, at a drug store, formerly owned by the brother of that 'Kitty' Kaplan, and a few days later, February 26th, received a telephone call from a man who said he would call on her. She claimed that the following day, Nathan Kaplan, the moving defendant, came to her home, discussed the purchase of narcotics and told her he would send two men to visit her. According to her testimony this was the first time she had ever seen Nathan Kaplan.

 She further stated she next heard from the defendant by telephone on March 7th, when he again informed her that two men would visit her that day; that Hyman and Levin came to her apartment that day and returned there on March 12th, when she introduced them to Agent Murphy. They returned on March 13th, when Murphy ordered seven ounces of heroin from them. Delivery was made the same day. She also testified that the defendant again called on her on March 23rd. Thereafter, Hyman and Levine made a second sale of narcotics to Agent Murphy, at which time they were arrested.

 Murphy and his fellow Agent both testified they had observed the defendant at the Miller apartment and also saw him entering or leaving the apartment house, to which he had driven in a Plymouth car. Another witness, a convicted prostitute, who shared an apartment with Laura Miller, also identified the defendant. On cross-examination she admitted being under the influence of narcotics while on the witness stand.

 The defendant did not take the stand.

 At the trial, and also upon appeal, the defense vigorously contended that Max Kaplan, alias 'Kitty,' then a fugitive, was the perpetrator of the crime charged and that it was he, and not Nathan Kaplan, who had called on Laura Miller on both occasions and had been observed by the Government Agents.

 Hyman and Levine were serving prison sentences at the time of trial, having pled guilty to the first indictment. They were brought here to testify on defendant's application pursuant to writs ad testificandum. Each swore that until the moment of his testimony he had never seen or heard of the defendant Nathan Kaplan that he was not the person who had sent them to Laura Miller's apartment. Both denied knowing Max Kaplan, alias 'Kitty' Kaplan. However, when pressed to name Max Kaplan, alias 'Kitty' Kaplan (who, as already noted, was a fugitive) as the person who had sent him there, Levine remained mute but acknowledged that he did not want to regarded as a 'squealer.'

 Thus, mistaken identity was the central issue; the jury accepted the Government's version, rejected the contention of the defense, and found that the prosecution beyond a ...

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