Before CLARK, WATERMAN and FRIENDLY, Circuit JUDGES.
Elliott Kahaner, Antonio Corallo and James Vincent Keogh appeal from a judgment of conviction in the District Court for the Southern District of New York upon a verdict after a jury trial, presided over by Judge Weinfeld. The indictment charged that they, Robert M. Erdman and Sanford J. Moore conspired with each other and with six co-conspirators corruptly to influence, obstruct or impede the due administration of justice or to endeavor to do so, in violation of 18 U.S.C. § 1503. The case to which the alleged conspiracy was directed was a charge that Moore and other officers or employees of Gibraltor Amusements, Ltd., had been guilty of criminal concealment of assets in that firm's bankruptcy proceeding in the Eastern District of New York; various overt acts were placed in the Southern District. Trial of Erdman and Moore, the Government's principal witnesses against the three appellants, was severed.
The indictment and trial in this case attracted particular attention because of the identity of two of the appellants - Keogh, a widely known and respected Justice of the Supreme Court of New York for Kings County, and Kahaner, who had served as Chief Assistant United States Attorney and later Acting United States Attorney for the Eastern District. No suggestion has ever been made that the due administration of justice was in fact obstructed; the evidence does not reflect in the slightest degree on former Assistant United States Attorney Averill M. Williams, who was in direct charge of the prosecution in the Eastern District, or on Judge Leo F. Rayfiel, before whom Moore and the other defendants in that prosecution came for sentencing.
On January 5, 1961,*fn1 Sanford J. Moore, Sherwood Schwach, Allen Kerner, Alvin Needleman, Jacob Walter Cohen, and Abraham Manacher were arrested in the Eastern District on charges of concealing assets from the trustee in bankruptcy of Gibraltor Amusements, Ltd., a juke box enterprise on Long Island of which Moore had been vice president and principal officer, and the others had been officers or employees. Cohen, who had been a relatively minor employee, had a cousin, Seymour Deutsch, who did accounting work for Dr. Robert Erdman, a Manhattan physician. At the instance of Deutsch and later of Cohen, Erdman communicated some time in January with Kahaner, then Chief Assistant United States Attorney for the Eastern District, who was both a patient and a friend. At this point the evidence diverges. The following statement is drawn from the Government's case, which was based mainly on the testimony of Erdman and Moore - concededly interested witnesses - who received in return for their cooperation not only postponements of trial on their own indictments here but, in Moore's case, a reduction from three years to one in his sentence on the bankruptcy charge.
The Government's claim was that, following the first conversation between Erdman and Kahaner, a plan was devised whereby Kahaner would endeavor to arrange that only two or at most three of the persons arrested would be indicted (these not to include Cohen), and that later, after Kahaner found that the Assistant United States Attorney proposed to seek the indictment of three - Moore, Kerner and dschwach - the plan was broadened, so that, in Erdman's works, Kahaner "would see to it that they [i.e., the men to be indicted] were treated softly by having the case brought before a specific judge in April, for which he [Kahaner] wanted $35,000". After some hesitation Moore accepted the proposal, in part at the urging of Corallo, with the understanding that $15,000 was to be paid before sentencing, and that Corallo would hold the remaining $20,000 until thereafter. Moore and Kahaner first met in Erdman's office on February 21*fn2 and Kahaner was paid $5,000 a day or two later. Shortly thereafter Kahaner told Erdman "pressures" were being applied against Moore because of the latter's unsavory background, and suggested that Erdman see Justice Keogh of the New York Supreme Court for Kings County, and enlist his aid. Around the end of the month Erdman went to the chambers of the Justice, who, according to Erdman's testimony, undertook to be of assistance for a monetary consideration, indicating his financial needs on a card he handed to Erdman, later supplemented by a second one, and also talking of a new car. Erdman testified that Kahaner advised him early in March that owing to a change in the assignments of the judges in the Eastern District, the schedule would have to be accelerated so that sentencing would occur in March, and that around March 7 another $5,000 supplied by Moore was paid to Kahaner and the same amount to Justice Keogh. It is established that, on March 9, Moore, Kerner and Schwach appeared before Judge Rayfiel and pleaded guilty, their attorney, Becker, stating that this was against his advice;*fn3 the sentencing was set for March 30, on which day Judge Rayfiel would still be presiding.
The Government's case, still resting basically on Erdman's and Moore's testimony, continued with a meeting of Kahaner, Moore and Corallo on March 15, at which Corallo emphasized the importance to him of Moore's not being sent to prison; a demand by Kahaner for the balance of the money; a meeting of Erdman, Moore and Kahaner at a Brooklyn coffee shop in the morning of March 29 at which Kahaner was paid an additional $2,500, followed by Erdman's going alone to Justice Keogh's chambers, paying him $17,500 and reminding him that the sentencing was scheduled for the following day; and a telephone call in Erdman's presence from the Justice to Judge Rayfiel arranging to lunch that day and asking that Judge Rayfiel bring with him the probation report on Moore.
Kahaner and Keogh categorically denied everything relating to them which is recited in the two foregoing paragraphs, with the exceptions indicated in notes 2 and 3 as to Kahaner and the following exceptions as to Keogh: The Justice conceded handing Erdman two cards, the first card being an estimate of the costs of renovating his summer home and the second, on his testimony, a request for a loan, but placed the date well after the sentencing and explained these as innocent indications of his financial situation given to a close personal friend. He further agreed that Erdman had come to his chambers on the morning of March 29, but said Erdman was accompanied by Moore and another man. The Justice's testimony was that Erdman introduced Moore as a lifelong friend who was in trouble, and wondered whether the Justice would ask Judge Rayfiel to look at Moore's "background to see whether consideration can be given to him." He thereupon made the telephone call arranging to lunch with Judge Rayfiel, although he denied asking Judge Rayfiel to bring along the probation report on Moore - a point on which his account was corroborated, and Erdman's contradicted, by Judge Rayfiel. At lunch, Keogh brought up the Moore case whereupon Judge Rayfiel said, in Keogh's words, "that Moore was the most culpable, he was the worst offender in a bankruptcy fraud, the like of which he had not run into before, and that he could - whether background or anything else was considered - he could not consider him anything but a very unsavory character," and also that two other federal judges had alerted him of rumors "that everything has been taken care of" in regard to the Moore sentence. Erdman was told of this conversation by Keogh during the afternoon of March 29. It is not disputed that Erdman then informed Moore, who that evening told his attorney, Becker, that he wanted to withdraw his guilty plea.
Justice Keogh also conceded that at Erdman's request he arranged for Erdman to see Judge Rayfiel on the morning of March 30 before the latter ascended the bench to sentence Moore and his codefendants. Judge Rayfiel said that no leniency could be extended. The stenographic transcript shows that when Moore, Kerner and Schwach appeared in court, Becker moved for leave to withdraw their guilty pleas, whereupon Judge Rayfiel remarked that this was "shall I say, very palpable, and I am sure that you know just what I mean"; that after some colloquy, during which Assistant United States Attorney Williams opposed withdrawal of the pleas, the case was placed at the bottom of the sentencing calendar; that a conference was then had in chambers during which Judge Rayfiel said to Becker, among other things, that he believed he had "more information than you have with respect to certain phases of this matter"; and that, on return to open court, the motion for leave to withdraw the pleas of guilty was denied, and Moore, Schwach and Kerner were sentenced for terms of three years, two years and fifteen months respectively.
Beyond this assured core of fact as to what transpired between the lunch of March 29 and the sentencing on March 30 lie great areas of controversy. There is a sharp conflict whether or not the account given by Keogh to Erdman included the prospective sentences, Erdman and Moore saying that it had and Keogh denying this, a denial supported by Judge Rayfiel's testimony that he had not imparted this information to Keogh. There is likewise conflict whether the appointment for Erdman to see Judge Rayfiel was made by Justice Keogh in the afternoon of March 29, as Erdman asserted, or on the morning of March 30, as Justice Keogh and Judge Rayfiel testified. Moreover, Erdman, and Becker as well, testified that after Erdman's interview with Judge Rayfiel early on March 30 they went to the chambers of Justice Keogh; Erdman testified that he reported his lack of success with Judge Rayfiel and asked Keogh to call the Judge again, whereupon, according to Erdman, Keogh picked up the telephone and apparently did so; Becker, who said he was excused from the room for most of the time that Keogh and Erdman were talking, testified that while he was inside it, Keogh told Erdman, "Go see him again." Erdman and Becker testified that they then returned to the Federal Building where, according to Erdman, he visted Kahaner and accompanied the latter to Judge Rayfiel's chambers, which Kahaner entered, saying he would ask the judge's secretary to tell the judge that the Government would not oppose withdrawal of the guilty plea and saying also he would tell Assistant United States Attorney Williams not to fight the withdrawal. This version was corroborated to some extent by Moore but was rater inconsistent with Becker's testimony that after his visit to Judge Rayfiel's chambers, Erdman said "Please don't make a motion to withdraw the pleas." Kahaner denied going to Judge Rayfiel's chambers or otherwise participating in the events of the morning of March 30; and Justice Keogh denied any participation save for then calling Judge Rayfiel for an appointment for Erdman, at the latter's request and in Becker's presence - this being the only call made by him to that end.
According to Erdman and Moore, there were several meetings of the defendants in April, in the course of which Kahaner, among other things, suggested that the situation might still be saved or at least ameliorated by an offer of restitution from Moore. Justice Keogh and Kahaner agreed that they lunched with Erdman on April 5, but testified this meeting had been arranged before the sentencing - a fact substantiated by Kahaner's telephone record - for the purpose of enlisting the Justice's aid in a project to have Kahaner continue for some time under the newly appointed United States Attorney, and that Moore's case was not discussed. The concededly disinterested testimony of Joseph Jaspan, the attorney for the trustee in bankruptcy of Gibraltor Amusements, Ltd., provides a thread through the events of April and May. Jaspan was in Justice Keogh's court trying a case the latter part of April, saw Moore sitting there, and approached him during a recess. Moore said he was about to apply for a reduction in sentence and was prepared to pay in restitution $50,000 in notes endorsed by Erdman; he asked whether if such payment was made, Jaspan or the trustee, M. Hallsted Christ, "would go to Judge Rayfiel and make a plea for him." After further discussion with Moore on April 27, Jaspan was back in Justice Keogh's court on this other matter early in May; the Justice called him to the side-bar and inquired as to "what was happening" in the Gibraltor case, saying that Erdman was his physician and friend. Later the Justice's office requested Jaspan to attend a meeting in chambers on May 22; upon arriving there, Jaspan found, in addition to the Justice, Moore and Erdman, whom the Justice introduced, and Louis Forman, a business associate of Moore's. The Justice inquired what was happening in regard to the proposed settlement in Moore's case. Jaspan answered that the trustee was prepared to recommend acceptance of $50,000 in notes endorsed by Erdman, but that he "had no way of knowing whether this would help them in the matter before Judge Rayfiel," and that the offer must not be conditioned on a reduction of sentence, with Justice Keogh also emphasizing this. On May 31, Moore, whose application for a stay pending petition for certiorari from our affirmance of Judge Rayfiel's order denying leave to withdraw his guilty plea, 290 F.2d 501, had just been denied, delivered to Jaspan a check signed by Erdman for $1,000, and a series of notes, twenty-four for $1,000 and one for $25,000, made by Moore and endorsed by Erdman; he asked Jaspan to inform Judge Rayfiel of this. After an unsuccessful attempt to communicate with Williams, who, it was learned, had severed his connection with the United States Attorney's office, Jaspan called Judge Rayfiel for an appointment; the Judge was willing to make one only if a representative of the United States Attorney was present, and suggested that Jaspan call Kahaner, the Chief Assistant. After being referred by Kahaner to Kreindler, the chief of the Criminal Division, without result, Jaspan again called Kahaner, who agreed to attend, and also Becker, who had prepared the offer of restitution. When the three lawyers appeared before Judge Rayfiel that afternoon, Becker said he intended to apply for a reduction of sentence because of the restitution and wished to know whether an oral application would be entertained; Judge Rayfiel said it would. Kahaner raised the point that a petition for certiorari to review this Court's affirmance of the adjudication in bankruptcy, In re Gibraltor Amusements, Ltd., 291 F.2d 22 (2 Cir.), cert. denied, Gibraltor Amusements, Ltd. v. Wurlitzer Co., 368 U.S. 925, 82 S. Ct. 360, 7 L. Ed. 2d 190 (1961), was pending, and questioned whether the application for a reduction of sentence should be entertained unless the petition were withdrawn. The Judge said that the defendants should surrender on the following Monday as scheduled, but indicated that he would then continue bail pending a hearing on the application for reduction of sentence.
To the framework afforded by Jaspan's evidence, Erdman and Moore annexed much testimony as to markedly greater interest and participation by Justice Keogh in the settlement negotiations. In particular they claimed he had reviewed a draft of the settlement offer and insisted on eliminating a condition as to reduction of sentence - but with a remark indicative of further conversations with Judge Rayfiel that would make this damaging to Keogh rather than the reverse. Justice Keogh, while conceding that he had a discussion with Jaspan at side-bar and that a meeting was had in his chambers on May 22, denied participating in the meeting, making any remark about Judge Rayfiel or ever seeing the latter; to the extent that he conceded taking some interest in the settlement negotiations, he attributed this to his friendship with Erdman. Kahaner denied any participation save the telephone calls from Jaspan and his appearance before Judge Rayfiel on May 31. Corallo was not implicated in this phase of the alleged conspiracy.
The foregoing account, rather long as it has turned out to be, is skeletonized in the extreme and is intended only to afford the background needed for understanding the points raised on this appeal. Moreover, the summary leans in the Government's direction, since on appeal from a jury's verdict in a criminal case we must, in considering the evidence, take "the view most favorable to the Government", Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). Thus our outline has not included much evidence adduced by defendants, which tended to discredit Erdman's and Moore's testimony in essential respects, although some of this will be mentioned below.
Every criminal case imposes special responsibilities on judges. These are enhanced when there is a sharp conflict in the evidence and the Government's case depends in large part on the testimony of persons who admit guilt of the crime with which the other defendants are charged. The responsibilities become greater still when the case threatens the deprivation of life or, as here, imperils much that makes life worth while - in one instance a reputation built over 37 years of public service and culminating in judicial office, and in another a young lawyer's promising career. Yet we must say also that the offense here charged - an attempt to interfere with the administration of justice - strikes at the very foundation of government, and that the high position in the community held by one of the defendants, and the role of another as a federal prosecutor, would aggravate the offense - if it occurred. The institutional arrangement of power made by our Constitution leaves such awesome questions of guilt to be determined, not by trial or appellate judges, but by a jury of laymen, with the Government having the appropriately heavy burden of convincing twelve men or women of the guilt of each defendant beyond a reasonable doubt. If the evidence was sufficient to warrant submission to the jury, it is not for judges "to weigh the evidence or to determine the credibility of witnesses", Glasser v. United States, supra, 315 U. SS. at 80, 62 S. Ct. at 469; our task, once we find that condition satisfied, is the more limited one of determining whether errors prejudicial to the defendants occurred at the trial. Even the bare outline we have given shows that the evidence was sufficient so that a reasonable juror could be convinced of the guilt of each of the appellants beyond a reasonable doubt.*fn4 Both the prosecution's case and the defendants' had their strengths and their weaknesses; it was for the jury, under proper instructions, to decide between them. So we pass to the many claims of error pressed upon us.
We have considered all these with care; our opinion will confine itself to those we deem most significant. For convenience we shall divide the claims into three categories: (I) Those relating to matters which arose prior to the judge's charge; (II) those relating to the charge itself; and (III) those relating to matters occurring subsequent to the submission to the jury.
I. MATTERS ARISING PRIOR TO THE JUDGE'S CHARGE.
(1) Alleged use of information obtained by unlawful search and seizure. Counsel for Justice Keogh complain of the court's refusal to grant a hearing, under F.R.Crim.Proc. 41(e), as to the Government's use of information from his personal telephone message books, allegedly obtained by an illegal search and seizure. The facts as to how the Government obtained access to these books were developed at a hearing outside the presence of the jury, when the Government sought to compel their production during presentation of its case and Keogh's trial counsel objected, apparently on the basis of the privilege against self-incrimination, and also, to some extent, through testimony later given by Justice Keogh. After this hearing the Government withdrew its request for production of the message books, but Keogh's trial counsel contended that the facts that had been developed showed that the Government's previous access to the books constituted an illegal search and seizure and thus required a further hearing to determine the information that had been obtained and the use to which it had been put. The claim was that the Government had used the information to "refresh" Erdman's recollection so that his trial testimony as to the dates and times of his contacts with Keogh would tie in with messages recorded in Keogh's books, as his grand jury testimony in July and August, 1961, allegedly had not.
The Government answers that Keogh consented to the examination of the message books, both by giving advance permission and by never expressing any objection despite his knowledge that the examination had taken place.*fn5 Moreover, it argues that even if access had been illegally obtained, the motion for a hearing looking to suppression of the fruits of the search was untimely under F.R.Crim.Proc. 41(e), coming, as it did, in mid-trial and long after Keogh had learned that the "search" had been conducted. We find it unnecessary to pass on the latter contention, which would require us to consider, among other things, whether the requirement that "if such a claim is made after the trial is under way, the judge must * * * be satisfied that the accused could not at an earlier stage have had adequate knowledge to make his claim." Nardone v. United States, 308 U.S. 338, 342, 60 @S. Ct. 266, 268, 84 L. Ed. 307 (1939), refers only to knowledge of the search and, if so, how complete the knowledge must be, or must include knowledge that what the Government obtained by the search was to be put to a detrimental use. For the evidence here warranted the court's conclusion that no illegal search had occurred.
Two agents of the FBI, Maher and Galligher, came by appointment to see Justice Keogh in the Kings County Supreme Court on the morning of September 15; he adjourned court and met them in a robing room adjacent to his courtroom on the 7th floor. Justice Keogh's attitude had been one of full cooperation with the Government's investigation; he had been interviewed by FBI agents and had made records of his bank accounts and his checkbooks available to them. Knowing that the FBI wished to interview his two clerks, Benjamin and Seigel, he had arranged for them to be waiting in the robing room. Then, in Keogh's words, "I told my two clerks that I thought it would be more comfortable if they went up to the eleventh floor chambers, * * * and told my clerks to give them [the FBI agents], to the best of their ability, any information they should like". Benjamin's version of Keogh's instruction was, "'Tell them everything they want to know and be cooperative with them'", or, as he restated it, "'Go with these two gentlemen up to the 11th floor chambers and tell them anything they want to know'". Agent Maher testified: "Judge Keogh told Mr. Seigel and Mr. Benjamin that we were going to interview them and that they - he wished that they would cooperate and furnish any information that we requested." After the agents had finished questioning Benjamin in the 11th floor chambers, they asked if the judge kept any notes of his telephone messages. Benjamin showed them the telephone message books, whereupon "They took, I believe it was, the current book with the hard cover on it and skimmed through the pages". Keogh testified that later in the day one of the clerks "said the agents thumbed through them [the telephone message slips] and asked what the red checks meant, and that was all I heard about that". At no time during his frequent contacts with the Government in the ensuing weeks, during which he submitted to further interviews and testified before the grand jury, did Justice Keogh indicate objection to what had been done.
Judge Weinfeld was warranted in refusing to find in this the "forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods" condemned in Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746 (1886). True, the protection of the Fourth Amendment is not limited to cases where force is used, as Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921), clearly shows. But here we have no case, such as was there presented, of "a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call" gaining access to a defendant's premises by subterfuge and making a "search and seizure subsequently and secretly * * * in his absence * * *." Here the representatives of the United States came openly and by appointment to get information which Justice Keogh, a former federal prosecutor well aware of his rights, indicated - not only by his words but by his prior and subsequent conduct - that he was entirely willing to give; his consent was quite sufficient to include the telephone message books kept by the clerks. Although each of the many decisions in this area necessarily turns on its own facts, we find Honig v. United States, 208 F.2d 916 (8 Cir. 1953); United States v. Dornblut, 261 F.2d 949 (2 Cir. 1958); and United States v. Martin, 176 F.Supp. 262 (S.D.N.Y. 1959), sustaining the propriety of the agents' conduct, more nearly apposite than others, cited by counsel for Keogh, which held the alleged consent to be involuntary and the search unlawful. While the court was thus warranted in holding that the agents' checking of the telephone message books was not an unlawful search and that there was thus no basis for a separate hearing directed to the suppression of its fruits, this did not prevent Keogh's counsel from developing at the trial itself that the information obtained from the message books had been used to prompt Erdman; he could have called Maher and Gallagher, interrogated them as to what information they had obtained and what they had done with it, and then, on a suitable showing, had Erdman recalled for further cross-examination. We realize that, as a matter of trial tactics, this was a far less attractive course, very likely an altogether unattractive one; but it was all counsel was entitled to.
(2) Newspaper headlines. Judge Rayfiel testified on Friday, June 1, 1962, in regard to his luncheon with Justice Keogh on the day preceding the sentencing and to his seeing Dr. Erdman at Keogh's request on the next morning.*fn6 The Journal American for the afternoon of June 1 carried a large-type banner headline "U.S. Judge accuses Keogh"; the World-Telegram had a four-column headline, "Judge Testifies Keogh Made Bid for Leniency." When the trial resumed on Monday, counsel for the defendants moved for a mistrial. The judge announced he would question the jurors separately in the presence of counsel. The questioning revealed that although all the jurors had followed the judge's instructions not to read newspaper articles about the case, eight jurors and three alternates had not been able to avoid seeing the headlines; they all asserted, however, that these had not affected their ability to decide the case solely on the evidence. The court denied the motion for a mistrial and also a request that Judge Rayfiel's testimony be read to the jury; but, as we shall see, this testimony was read to the jury at its request on the afternoon before it reached its verdict.
Whether Judge Rayfiel's direct testimony was that Justice Keogh himself had sought leniency for Moore or merely that he had passed on a friend's request - an issue we shall discuss further when we come to the charge - the World-Telegram's headline was within the range of fair characterization. The Journal American's was not; Judge Rayfiel had simply stated his recollection of the facts and had further said that he saw no impropriety "in anyone speaking in behalf of a man about to be sentenced." A misleading headline printed so large that conscientious jurors cannot help seeing it hardly bespeaks a proud and responsible press, whose constitutional freedom rises no higher than the criminal defendant's right to a fair trial. However, we find it quite impossible to believe that the jury, which had seen and heard Judge Rayfiel that afternoon, which was to listen to so much exegesis of his testimony in the way of summations by counsel and instructions by the court, and which was finally to request a reading of that testimony, could have been so affected by an inflammatory verb in a newspaper headline, two weeks before its verdict, as to impeach the verdict's validity. Comparison of the facts here with the publicity relating to ...