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May 9, 1959

Morton BRILLIANT, Defendant

The opinion of the court was delivered by: RAYFIEL

On April 1, 1958 a 16-count indictment was returned against the defendant-appellant, charging him with aiding, assisting, counseling or procuring the preparation and filing of false and fraudulent income tax returns, in violation of § 3793(b)(1) of the Internal Revenue Code of 1939 and § 7206(2) of the Internal Revenue Code of 1954 (Title 26 U.S.Code).

On November 21, 1958, after a five-day trial, a jury found him guilty on all sixteen counts of the indictment, and on December 19, 1958 he was sentenced to imprisonment for two years on each of said counts, the sentences to run concurrently. I denied his application to be released on bail pending appeal. On December 30, 1958, which, it will be noted, was not within the ten day period provided by Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C., a notice of appeal from said judgment was filed in the office of the Clerk of this Court by his then attorneys.

On March 25, 1959 the defendant-appellant filed a motion under § 2255 of Title 28 U.S.Code, to vacate the said judgment of conviction and the sentence imposed thereunder, and on March 26, 1959 he filed a motion under § 1915 of said Title for leave to appeal in forma pauperis from said judgment. I assigned Julian C. Tepper, Esq., an able and experienced attorney, to represent him in the latter application, making available to him all necessary records, including a complete transcript of the proceedings in the trial.

 The affidavits of the defendant-appellant, submitted in support of both motions prior to the assignment of counsel, are replete with utterly baseless accusations, charging, among many other things, fraud in the obtainment of the indictment, 'Fraud before the Grand Jury', supression of evidence, and subornation of perjury. These, as well as the remaining charges, were doubtless considered by Justice Harlan, of the United States Supreme Court, and Judge Learned Hand, of the Court of Appeals, who denied his application for release on bail pending appeal. I have reason to believe that the transcript of the trial, which had been made available to the defendant-appellant, was considered by Justice Harlan in passing upon said application. In his affidavit the defendant-appellant dwells persistently on the claim that witnesses for the prosecution were guilty of perjury, and that the Government suborned or had knowledge of such perjury. He offers not a scintilla of proof to support his charges. Even if their testimony were false -- and obviously the jury did not believe so -- the movant has not shown, as he is required to do, that the Government had knowledge of that fact. When a claim is made that the prosecution colluded with witnesses to commit perjury, or had knowledge that they had done so, the person making such claim has the burden 'to allege and prove, not conclusions, but facts which would entitle him to relief'. Smith v. United States, 5 Cir., 252 F.2d 369, 371, certiorari denied 357 U.S. 939, 78 S. Ct. 1388, 2 L. Ed. 2d 1552.

 Counsel for the defendant-appellant offers for the Court's consideration, but without comment, the aforementioned points and claims made in the defendant's affidavit. He relies chiefly on the claim that there was an unauthorized communication with the jury during its deliberations by the Court's law clerk. That claim is stated in the defendant's affidavit as follows: 'the trial judge instructed the jury, during his charge to the jury as follows:

 "You will take each of these sixteen counts and consider each one of them separately, and render a verdict with respect to each one of the sixteen counts'.

 'After the jury retired to deliberate its verdict, the judge left the court room and his chambers; and during his obsence, the jury sent out a question to the judge, regarding the above instruction. In the absence of the judge, the judge's clerk replied to the jury's question, with the consent of counsel for both sides, and instructed the jury to consider all counts of the indictment together, directly contrary to the judge's instructions, supra. The jury actually returned its verdict, not on each count separately, but as 'guilty on all counts".

 Here, again, the defendant-appellant's claim is wholly devoid of truth. The court's law clerk did not reply to the jury's inquiry orally, but manually delivered to the jury a stipulation in writing, signed by counsel for the Government and the defendant, a copy of which follows: --

 'We stipulate that the following may be given in answer to the jury.

 "Your verdict must cover each individual count of the indictment'

 signed Warren Max Deutsch (United States Attorney) J. F. X. Sheridan (attorney for the defendant) F. McArdle (attorney for the defendant).'

 (Emphasis and matter in parenthesis added)."

 Counsel contends further that the reply (the aforementioned stipulation) to the jury's inquiry was ambiguous. There is no record of, and none of those involved in the matter recollects, the specific inquiry of the jury, but it is reasonable to assume that the reply was responsive, and apparently unambiguous to the jury, since it did ...

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